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OCTOBER 1976 VOL. 10, NO.4 LAST ISSUE IN 1976 SERIES

THE OFFICIAL PUBLICAliON OF THE ARKANSAS BAR ASSOCIATION

~e

Arkansas Lawyer SPECIAL FEATURES

OFFICERS

Herschel H. Friday, President Walter R. Niblock, President-Elect Cyril Hollingsworth, Secretary-Treasurer

Malpractice!. .... , . ,.Kenneth R. Redden Claims Review Committee Report .... ,.

The Right of Privacy .... , ,Phillip Carroll Fall Legal Institute"", ... ,.,." .. , .. ,.

The Panama Canal Darrell F, Brown Legal Research Pool "., ,., ..

Organizational Directory."", ,., ..

144 147

138 154 156 171

165

EXECUTIVE COUNCIL

Thomas F. Butt LeRoy Autrey Wayne Boyce Virginia Tackett G. Alan Wooten Joe D. Woodward Randall W. Ishmael Robert D. Ross Charles L. Carpenter Herman L. Hamilton Don M. Schnipper John Mac Smith

EX.()FFICIO

Herschel H. Friday Walter R. Niblock Cyril Hollingsworth Robert C. Compton George D. Ellis Robert S. Lindsey

REGULAR FEATURES President's Report, .Herschel H. Friday Juris Dictum. , . , , C. R. Huie Legal Economics Fran Shellenberger Law School News.....................

Oyez-Oyez B. Tarkington In Memoriam Executive Council Notes .... Cyril Hollingsworth Service Directory. . . . . . . . . . . . . . . . . . . . ..

Lawyers' Mart , Aegis Addenda C. E. Ransick Ethics.

134 150 161 163 172 174 173

IBC IBC 148 175 135

EDITOR

C. E. Ransick

EDITORIAL COMMITTEE

Robert T. Dawson E. Alvin Schey James M. Moody

PublIshed quarterly by the Arkansas Bar Association, 400 West Markham, Little Rock. Arkansas 72201. second class postage paid at Little Rock. Arkansas. SubscriptIon pnce to non-members of the Arkansas Bar Association $6.00 per year and to members $3.00 per year included in annual dues. Any opinion expressed herein is that of the author, a'ld not necessarily thaI of the Arkansas Bar Association. The Arkansas Lawyer, or the Editorial Committee Contributions to The Arkansas Lawyer are welcome and should be sent in two COpIes to the Arkansas Bar Center. 400 West Markham. Little Rock. Arkansas 72201.

All inquines regarding advertising should be senl to The Arkansas Lawyer. above address.

October 1976/Arkansas Lawyer/l33

PRESIDENT'S REPORT

by Herschel H. Friday

Since becoming your President in June, Beth and I have attended the Annual meetings of the Tennessee Bar Association in Memphis and The State Bar of Texas in Austin. We will attend the Annual meeting of The Missouri Bar in September.

FALL LEGAL INSTITUTE The Fall Legal Institute will be held September 16, 17 and 18 at the Camelot Inn in Little Rock. There were several reasons for the move to Little Rock, including our inability to get firm commitments on space in Fayetteville. In my judgment, the lawyers of Arkansas have not been taking advantage of the excellent continuing legal education programs at the Fall Institute. We are making a major effort thll year to put together that type 01 program with the broadelt poilible appeal to the Arkanul lawyera. Henry Woods, at my request, has agreed to be Chairman and he has put together a program that each of you should make every effort to attend. We are expecting the largest turnout in recent history at this Institute, and I urge you to take advantage of this program. We will have new 1976 videotapes from the Center for Trial-Appellate Advocacy at Hastings and will have outstanding out-of-state trial lawyers. That weekend is the Oklahoma State ball game but Colonel Ransick has blocked out sufficient rooms at the Camelot Inn.

134/Arkansas Lawyer/October 1976

ABA ANNUAL MEETING Beth and I will be attending the Annual meeting of the American Bar Association in Atlanta, Georgia, including the meeting of the National Conference of Bar Presidents on August 6 and 7 and the American Bar House of Delegates meeting on August 9, 10, 11 and 12. There appear to be a substantial number of matters of interest that will come before the House (there are 77 recommendations for action), and I will keep you informed of developments at the American Bar level.

BAR ACTIVITIES Finally, I am pleased with the activities of the Arkansas Bar Association Committees, including the Young Lawyers Section. It appears to me that the Committees, which are the life blood of the Association, are functioning but I urge every Committee Chairman to move forward promptly with the work of the Committee. I again remind you of the importance of meeting the time schedule on legislative proposals. They must get before Jurisprudence and Law Reform so that they can be presented to the Arkansas House of Delegates meeting September 16. Furthermore, anything that requires a policy determination should be brought to our attention in a timely manner so that an appropriate presentation can be made to the House of Delegates for action. .

CODE Of PROfESSIONAL RESPONSIBILITY CANON 2 A Lawyer Should Assist the Legal Profession in Fuffilllng Its Duty to Make Legal Counsel Available DISCIPLINARY RULES DR 2路101 Publicity in General.

(A) A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein, "public communication" includes, but is not limited to, communication by means of television, radio, motion picture, newspaper, ma0azine, or book.

(8) A lawyer shall not publicize himselt, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf except as permitted under DR 2-103.

This does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name: (1) In political advertisements when his professional status is germane to the political campaign or to a political issue.

(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.

(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.

(4) In and on legal documents prepared by him.

(5) In and on legal textbooks, treatises, and other legal pUblications, and in dignified advertisements thereof.

(C) A lawyer snail not compensate or give any thing of value to representatives of the press, radio, televisiol I. or other communication medium in

anticipation of or in return for professional publicity in a news item.

DR 2路102 Professional Notices, Letterheads, Offices, and Law Lists.

(A) A lawyer or law firm shall not use professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices, except that the following may be used if they are in dignified form: (1) A professional card of a lawyer identifying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, and any information permitted under DR2-105. A professional card of a law firm may also give the names of members and associates. Such cards may be used for identification but may not be published in periodicals, magazines, newspapers, or other media.

(2) A brief professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters pertaining to the professional office of a lawyer or law firm, which may be mailed to lawyers, clients, former clients, personal friends, and relatives. It shall not state biographical data except to the extent reasonably necessary to identify the lawyer or to explain the change in his association, but it may state the immediate past position of the lawyer. It may give the names and dates of predecessor firms in a continuing line of succession. It shall not state the nature of the practice except as permitted under DR 2路105.

(3) A sign on or near the door of the office and in the building directory identifying the law office. The sign shall not state the nature of

the practice, except as permitted under DR 2-105.

(4) A letterhead of a lawyer identifying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, associates and any information permitted under DR 2105. A letterhead of a law firm may also give the names of members and associates, and names and dates relating to deceased and retired members. A lawyer may be designated "Of Counsel" on a letterhead if he has a continuing relationship with a lawyer or law firm, other than as a partner or associate. A lawyer or law firm may be designated as "General Counsel" or by similar professional reference on stationery of a client if he or the firm devotes a substantial amount of professional time in the representation of that client. The letterhead of a law firm may give the names and dates of predecessor firms in a continuing line of succession.

(5) A listing of the office of a lawyer or law firm in the alphabetical and classified sections of the telephone directory or directories for the geographical area or areas in which the lawyer resides or maintains offices or in which a significant part of his clientele resides and in the city directory ot the city in which his or the firm's office is located; but the listing may give only the name of the lawyer or law firm, the fact he is a lawyer, addresses, and telephone numbers. The listing shall not be in distinctive form or type. A law firm may have a listing in the firm name separate from that of its members and associates. The listing in the classified section shall not be under a heading or classification other than "Attorncontinued on paga 136 October 1976/Arkansas Lawyer/l35

Responsibility,

continued from page 135 eys" or "Lawyers," except that additional headings or classifications descriptive of the types of practice referred to in DR 2-105 are permitted.

(6) A listing in a reputable law list or legal directory giving brief biographical and other informative data. A law list or directory is not reputable if its management or contents are likely to be misleading or injurious to the public or to the profession. A law list is conclusively established to be reputable if it is certified by the American Bar Association as being in compliance with its rules and standards. The published data may include only the following: name, including name of law firm and names of professional associates; addresses and telephone numbers; one or more fields of law in which the lawyer or law firm concentrates; a statement that practice is limited to one or more fields of law; a statement that the lawyer or law firm specializes in a particular field of law or law practice but only if authorized under DR 2-105 (A)(4); date and place of birth; date and place of admission to the bar of state and federal courts; schools attended, with dates of graduation, degrees, and other scholastic distinctions; public or quasi·publie offices; military service; posts of honor; legal authorships; legal teaching positions; memberships, offices, committee assign. ments, and section memberships in bar associations; memberships and offices in legal fraternities and legal societies; technical and professional licenses; memberships in scientific, technical and professional associations and societies; foreign language ability; names and addresses of references, and, with their consent, names of clients regularly represented.

(8) A lawyer in private pracfice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or professional association may contain "P.C." or P.A." or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more 136/Arkansas Lawyer/October 1976

deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. A law· yer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use his name in the firm name or in professional notices of the firm.

(C) A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners.

(D) A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.

(E) A lawyer who is engaged both in the practice of law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business.

(F) Nothing contained herein shall prohibit a lawyer from using or permitting the use of, in connection with his name. an earned degree or title derived therefrom indicating his training in the law.

DR

2·103 Recommendation of Professional Employment.

(A) A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer.

(8) Except as permitted under DR 2-103 (C), a lawyer shall not compensate or· give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client (C) A lawyer shall not request a person or organization to recommend employment, as a private practitioner, of himself, his partner, or associate, except that he may request referrals from a lawyer referral service operat· ed, sponsored, or approved by a bar

association representative of the general bar of the geographical area in which the association exists and may pay its fees incident thereto.

(D) A lawyer shall not knowingly assist a person or organization that recom· mends, furnishes, or pays for legal services to promote the use of his services or those of his partners or associates. However, he may cooperate in a dignified manner with the legal service activities of any of the following, provided that his independent professional judgment is exercised in behalf of his client without interference or control by any organization or other person: (1) A legal aid office or pUblic defender office: (a) Operated or sponsored by a duly accredited law school. (b) Operated or sponsored by a bona fide non-profit community organization. (c) Operated or sponsored by a governmental agency. (d) Operated, sponsored, or approved by a bar association representative of the general bar of the geographical area in which the association exists.

(2) A military iegal assistance office.

(3) A lawyer referral service operated, sponsored, or approved by a bar association representative of the general bar of the geographical area in which the association exists.

(4) A bar association representative of the general bar of the geographical area in which the association exists.

(5) Any other non-profit organization that recommends, furnishes, or pays for legal services to its members or beneficiaries, but only in those instances and to the extent that controlling constitutional interpretation at the time of the ren· dition of the services requires the allowance of such legal service activities, and only if the following conditions, unless prohibited by such interpretation, are met: (a) The primary purposes of such organization do not include the rendition of legal services. (b) The recommending, furnishing, or paying for legal services to its members is incidental and reasonably related to the primary purposes of such organization. (c) Such organization does not derive a financial benefit from the rendition of legal services by the lawyer. (d) The member or beneficiary for whom the legal services are

rendered, and not such or·

ganization, is recognized as the client of the lawyer in that matter.

(E) A lawyer shall not accept employment when he knows or it is obvious that the person who seeks his services does so as a result of conduct prohibited under this Disciplinary Rule.

DR 2-104 Suggestion of Need of Legal Services.

(A) A lawyer who has given unsolicited advice to a layman that he should

obtain counselor take legal action shall not accept employment resulting from that advice, except that: (1) A lawyer may accept employment

(2)

(3)

(4)

(5)

by a close friend, relative. former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.

A lawyer may accept employment that results from his participation in activities designed to educate laymen to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by any of the offices or organizations enumerated in DR 2103(0)(1) through (5), to the ex· tent and under the conditions prescribed therein.

A lawyer who is furnished or paid by any of the offices or organizations enumerated in DR 2103(0)(1), (2), or (5) may represent a member or beneficiary thereof, to the extent and under the conditions prescribed therein.

Without affecting his right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not understand to give individual advice. ff success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept but shall not seek, employment from those contacted for the purpose of obtaining their joinder.

DR 2-105 Limitation of Practice.

(A) A lawyer shall not hold himself out publicly as a specialist or as limiting his practice, except as permitted under DR 2-102 (A) (6) or as follows: (1) A lawyer admitted to practice before the United States Patent Office may use the designation "Patents," "Patent Attorney," or "Patent Lawyer," or any combination of those terms, on his letterhead and office sign. A lawyer

engaged in the trademark practice may use the designation "Trademarks," "Trademar1< Attorney," or "Trademar1< Lawyer," or any combination of those terms, on his letterhead and office sign, and a lawyer engaged in the admiralty practice may use the designation "Admiralty," "Proctor in Admiralty," or "Admiralty Lawyer," or any combination of those terms, on his letterhead and office sign.

(2) A lawyer may permit his name to be listed in lawyer referral service offices according to the fields of law in which he will accept re-ferrals.

(3) A lawyer available to act as a consultant to or as an associate of other lawyers in a particular branch of law or legal service may distribute to other lawyers and publish in legal journals a dignified announcement of such availability, but the announcement shall not contain a representation of special competence or experience. The announcement shall not be distributed to lawyers more frequently than once in a calendar year, but it may be published periodically in legai journals.

(4) A lawyer who is certified as a spe· cialist in a particular field of law or law practice by the authority having jurisdiction under state law over the subject of specialization by lawyers may hold himself out as such specialist but only in accordance with the rules pre-scribed by that authority.

DR 2-106 Fees for Legal services.

(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.

(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.

Factors to be considered as guides in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the ques· tions involved, and the skili requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client.

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(8) Whether the fee is fixed or contingent.

(C) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.

DR 2-107 Division of Fees Among Lawyers.

(A) A lawyer shall not divide a fee for legal services with another lawyer who Is not a partner in or associate of his law firm or law office, unless: (1) The client consents to employment of the other lawyer after a full disclosure that a division of fees wi II be made.

(2) The division is made in proportion to the services performed and responsibility assumed by each.

(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.

(B) This Disciplinary Rule does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement DR 2-108 Agreements Restricting the Practice of a Lawyer.

(A) A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement except as a condition to payment of retirement benefits.

(B) In connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that re-stricts his right to practice law.

DR 2-109 Acceptance of Employment.

(A) A lawyer shall not accept employment on behalf of a person if he knows or it is obvious that such person wishes to: (1) Bring a legal action, conduct a defense, or assert a position in litigation, or otherwise have steps taken for him, merely for the purpose of harassing or maliciously injuring any person.

(2) Present a claim or defense in Iiti· gation that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification. or reversal of existing law. continued on page 143 October 1976/Ar1<ansas Lawyer/137

THE RIGHT OF PRIVACY -PHILLIP CARROLL

It is said that the tort of invasion of privacy was germinated about 87 years ago by a socially prominent Boston attorney, Samuel D. Warren, who became incensed by press coverage of his family's social affairs. He enlisted the aid of his former law partner, Louis D. Brandeis, to write a law review article, "The Right To Privacy", 4 Harvard L. Rev. 193 (1890), which has been acclaimed as the most influential Law Review article in American history. Prosser, Handbook 01 the Law 01 Torts, 802 (4th ed. 1971). Warren and Brandeis were concerned with snooping, prying newsmen whose columns were filled with bits of gossip about the private lives of citizens of Boston.

Prosser suggested that it was the press coverage of the wedding of one of Warren's daughters which stimulated Warren. Prosser, Privacy, 48 Calil. L. Rev. 386 (1960). But another careful scholar noted that the first Warren daughter to marry, Mabel Bayard Warren, was wed or November 4, 1905, nearly fifteen years after the pUblication of the Law Review. Pember. Privacy anc the P,... (1972). Something elSE must have inluriated Mr. Warren. Ne other tort has received as much comment in advocacy of its bare existence. See, e.g., M. Brenton, The Privacy Invaderl (1964); S. Hofsladter & G. Horowitz, The Right 01 Privacy (1964); A. Miller, The Alaault On Privacy (1971); V. Packard, The Naked Society (1964); D. Pember, Privacy and the P,... (1972); A. Westin, Privacy and Freedom (1967); Davis, What Do We Mean By "Right to Privacy"? 4 S.D.L. Rev. (1959); Blaustein, Privacy al an AI· peet 01 Human Dignny: An Anlwaf to Dean Prol..r, 39 N.Y.U.L. Rev. 962 (1964); Kalven, Privacy In Tort 138/Arkansas Lawyer/October 1976

Law - Were Warren and Brandell Wrong? 31 Law & Contemp. Prob.

326 (1966); Nimmer, The Right 01 Publicny, 19 Law & Contemp. Prob.

203 (1954); Prosser, Privacy, 48 Catif. L. Rev. 383 (1960); Wade, Delamatlon and the Right 01 Privacy, 15 Vand. L. Rev. 1093 (1962); Wright, Delamatlon, Privacy and the Publlc'l Right to Know: A National Problem and a New Approach, 46 Tex. L. Rev. 630 (1968); Clark Conltilutlonal Sourcel 01 the Penumbral Right to Privacy, 19 Villanova L. Rev. 833 (1974); Privacy and a Free Prela: A Contemporary Conflict in Valuel, 20 N.Y.L.F. 453 (1975); Blaustein, Firat Amendment and Privacy: The SUpreme Court Jultlce and The Phlloaopher, 28 Rutgers L. Rev. 41 (1974); The ConIIltutlonal Right 01 Privacy: An Examination, 69 NY.U.L. Rev. 263 (1974); TIme and the Conltltutlonal Privilege, 29 Ark. L. Rev. 99 (1972); Unauthorized U.. 01 Photographs, 16 Ark. L. Rev. 306 (1962); The Right of Privacy, 6 Ark. L. Rev. 459 (1952); Right to Privacy Slnee Grllwold v.

Connecticut, 21 Ark. L. Rev. 442 (1967). New York enacted the first privacy statute in 1903: Ch. 132, § § 1.2 (1903) N.Y. LawI, codified as amended in N.Y. Civ. Rights Law § 50-51 (McKinney 1948). A count made in 1974 stated that a right 01 privacy was then recognized in 39 states, as well as the District 01 Columbia Five slates now have peivacy statutes. Privacy and the P,...

Ilnce nme v. Hili, 50 Wash. L. Rev. 57 (1974). Few people would quarrel with the need for a right of privacy in certain inslances, but hardly any two people would agree as to where the lines of separation shou Id be drawn.

The openneu required of a democratic eoclety la the anthltheala of a right to be left alone.

You can ask yourself how you would decide the following cases: Publication of an article, with the plaintiff's picture, about a physical ailment for which she was being treated at the hospital, Barber v. nme, Inc., 348 Mo. 1199, 159 S.w.2d 291 (1942) (Jury Award of $1500 actual damages upheid). Publication of a picture showing the plaintiff with her dress blown upward by the wind, Dally TImel Democrat v.

Graham, 276 Ala. 380, 162 So.2d 474 (1964) ($4,166 verdict affirmed).

Innocent bystander in a film of a televised police raid, Jacova v.

Southern Redlo 5< Televlalon Co., 83 So.2d 34 (Fla. 1955) (Summary Judgment for defendant affirmed). Former child prodigy again placed in the limelight by a magazine article after twenty years of anonymity, Sldll v.

FoR Publlshlng Co., 113 F.2d 806 (2d Cir. 1940) (Dismissal affirmed). Of course, the right of privacy sometimes conflicts with the First and Fourteenth Amendments.

TIme, Inc. v. Hili, 385 U.S. 374 (1967), was the lirst case holding that the First Amendment protects publishers who have been sued for invasion 01 privacy. The case involved the publication of nondefamatory falsehoods. The Hill family had been involved in a harrowing escapade when they were held hostage for 19 hours by three escaped convicts. Later a book and a stage play were written about a family named "Hilliard" terrorized in a similar incident. The fictionalized version depicted a beating of the father and son and a verbal sexual insult to the daughter.

None of this happened to the hills during their ordeal. Life Magazine then published a story declaring that the play depicted actual events experienced by the Hills. Hill sued forinvasion of privacy under New York's Civil Rights Law which permits recovery if an individual's name or likeness is used for "advertising purposes, or for the purposes of trade," without first obtaining permission. He argued that the Life article gave the impression that the play mirrored the family's captivity, "which, to the knowledge of the defendant ... was false and untrue."

Time argued in its defense that the article was newsworthy, of public interest, and "published in good faith without any malice whatsoever." An award of damages to the Hills was appealed to the Supreme Court.

Writing for the Court, Justice Brennan concluded that James Hill had become newsworthy and had substantially lost his right to privacy "insofar as his hostage experience was involved." He could, however, maintain a cause of action if Life had either "exploited for ... commercial benefit," or "fictionalized." The Court then applied the standard which had been originated in the defamation case, New York TImes v. Sullivan, 376 U.S. 254 (1964), and said: "The constitutional protections for speech and press preclude the application of the New York statute to redress false reports of malters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth."

Note that constitutional protection is given in privacy cases to malters of public interest rather than to matters concerning public officials or public persons. In actions centering around invasions of privacy, it is the newsworthiness of the event that gives a publication protection against liability. This is contrasted to defamation actions in which the prominence of the plaintiff as a public official or a public person is the key element. New York TImes Co. v.

Sullivan, supra; Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). The "public interest test" in libel actions brought by private persons which had been espoused by a plurality in Rosenbloom v. Metromedia, Inc.,

403 U.S. 29 (1971), was short lived, being replaced in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), by the concept that the states cou ld define the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual so long as they do not impose liability without fault.

Since Gertz, a private person suing for defamation must, at least, prove negligence on the part of the defendant publisher. But, thus far, the public official, the public figure, or the private individual may recover regardless of the lack of fault on the part of the defendant, if the plaintiff's private life is unreasonably inVOlved, and the malter publicized would be highly offensive to a reasonable person and is not of legitimate concern to the public. The first exception to this rule was stated in Cox Broed路 casting Corporation v. Cohn, 95 S. Ct. 1029 (1975), with only J. Rehnquist dissenting. The court held that Georgia could not by statute impose sanctions on the accurate publication of a rape victim's name obtained from judicial records maintained in connection with a public prosecution and that themselves are open to public inspection. The Supreme Court said that there are impressive credentials for a right of privacy but that the interest of privacy fade when the information involved already appears on public record, especially when viewed in terms of the First and Fourteenth Amendments and in light of the public interest in a vigorous press. Before leaving the Cox Broadcasting it is interesting to note how careful the Court was in leaving undecided the question of whether truthful publication of very private malters unrelated to public affairs cou ld be constitutionally proscribed. Rather than address the broader question of whether truthful publications may ever be su bjected to civil or criminal liability consistent with the First and Fourteenth Amendments, or to put it another way, whether the state may ever define and protect an area of privacy free from unwanted publicity in the press, the Court chose to focus on the narrower question of whether a state may impose sanctions on the accurate publication of a rape victim's name obtained from pUblic records. Thus, Cox Broad路 casting leaves us with a very in-

teresting and unanswered question.

Truth has traditionally been a defense in defamation cases although since Gertz, truth as a defense in a defamation suit brought by a private person has been replaced by an obligation of the plaintiff to prove negligence or greater fault. If the plaintiff has the burden of showing that the defendant was negligent in failing to ascertain the falsity or the defamatory character of the statement, or that he acted recklessly or knowingly in this regard, there remains Iiltle, if any, significance in the common law proposition that truth of the statement is a defense to be raised by the defendant and on which he has the burden of proof.

As a practical malter, in order to meet the constitutional obligation of showing defendant's fault as to truth or falsity, the plaintiff will necessarily find that he must show the falsity of the defamatory communication.

So much for the law of defamation, let us return to the subject of privacy.

Trying to define the limits of the right of privacy Is something like trying to describe the clr路 cumference of a cloud of smoke.

The right was first recognized by the Supreme Court as a bar to state legislative action in Griswold v.

Connecticut, 381 U.S. 479 (1965).

There the Court reversed the conviction of a doctor and director of a birth control clinic who had been convicted as accessories to the crime of contraceptive use, because they had advised, examined, and prescribed birth control devices for married persons in contravention of Connecticut anti-birth control legislation. Justice Douglas found that the rights of privacy existed in the penumbra of the First, Third, Fourth, Fifth and Ninth Amendments. Justice Douglas' use of the word penumbra is apt, for the dictionary defines the word as the space of partial illumination as in an eclipse or sun spot between the dark central portion or perfect shadow and the full light. The right of privacy as it had emerged in and since Griswold remains in the penumbra but it has three principal dimensions. The First Amendment protection of free speech and assembly is designed to continued on page 140 October 1976/Arkansas Lawyer/139

Privacy, continued from page 139 safeguard the anonymity of political belief and, especially, political association. It guarantees that the individual is not compelled pUblicly to disclose the content of his political beliefs or his membership in political associations. The Fourth Amendment, certainly the core element in constitutional privacy, protects one's reasonable expectations of privacy by imposing stiff procedural requisites which must be met before a breach in the sanctity of one's physical location may occur.

The third and most absolute component is the Fifth Amendment's stand on compulsory self-incrimination, a right which safeguards the innemnost sanctity of a person's mind from compulsory governmental intrusion. The total effect of these guarantees is to create a zone of privacy around various personal interests that the Government cannot violate without a showing of proper justification. Constitutional Sources of the Penumbral Right to Privacy, 19 Villanova L. Rev. 833 (June 1974).

The Supreme Court has subsequently held that a person has a right to receive information and ideas, even obscene material, in the privacy of his home. Stanley v.

Georgia, 394 U.S. 557 (1969). A state's prohibition of an abortion in the first trimester of pregnancy is an invasion of a woman's right of privacy. Rowa v. Wade, 410 U.S. 113 (1973). The right to marry may not be denied on the basis of racial classification. Loving v. Virginia, 388 U.S. 1 (1967). Contraceptive use by unmarried persons cannot be prohibited. Elsenlledt v. Baird, 405 U.S. 438 (1972). There is current debate as to whether or not this right extends to unmarried minors. "Parental Consent Requirements and Privacy Rights 01 Minors: The Contreceplive Controversy," 88 Harvard L. Rev. 1001 (March 1975). In Doe v.

Planned Parenthood Assn. 01 Utah, 510 P.2d 75 (Utah 1973), it was held that the right does not extend to unmarried minors. The constitutional protection of marital privacy has not been extended by state courts to couples of the same sex. Marriage licenses were held to be properly den ied to two men in Baker v. NellOll, 191 N.w.2d 185 (Minn. 1971), and to two women in Jone. v. Halla140/ArI<ansas Lawyer/lJclober 1976

han, 501 S.w.2d 588 (Ky. 1973). As this paper was being prepared, it was reported by the press that the Supreme Court in a one sentence order, had upheld Virginia'S statute making it a crime for consenting adults to engage in homosexual acls in private. Criticism immediately appeared in a newspaper column written by Anthony Lewis pointing out that private homosexual conduct poses no direct injury to any third party, much less than to potential life. Can the state's interest in maintaining a particular moral or $0cial climate be weightier than the value of potential life as was found in the abortion case? Perhaps the prevailing justices simply feel more distaste for homosexual acts than for abortion.

Arkan.as has played a role In providing grist for the grinding out of privacy decisions.

When the NAACP sought to prevent forced disclosu re of its membership list as part of Little Rock's Occupational License Tax Ordinance, the Court granted relief since the City was not able to demonstrate an interest of sufficient magnitude to limit the freedom of association.

Bates v. Little Rock, 361 U.S. 516 (1960). In Shelton v. Tucker, 364 U.S. 479 (1960), an Arkansas statute required, as a condition of employment, that every public school teacher annually file an affidavit listing the organizations to which he or she had belonged or regularly contributed within the previous five years. The majority opin ion evidenced a concern with the community pressures that could be applied against teachers belonging to unpopular political groups. Not only might they be subject to harassment, but public pressure might compel local school boards to terminate their contracts. It was held tMt the disclosure would impair 'the teachers' right of free association, a right closely allied to the freedom of speech, and a right which, like free speech, lies at the foundation of a free society.

Prosser hu suggested thaI In lhe private area there are really four torts within the law of privacy: (1) Intrusion upon an Indlvldua's physical solitude; (2) Publication of private Informalion about an individual;

(3) Placemenl 01 an individual In a lalse Ughl/n Ihe public eye; and (4) Approprlallon of an indlvldua's name or likeness for commercial gain.

These concepts have in similar language been adopted by the American Law Institute in Tentative Draft No. 21 of the Restatement, Second, on the Law of Defamation. Dean John W. Wade summarizes the current draft in Vol. XI, No.1, The Forum (Fall 1975), published by the section of Insurance, Negligence, and Compensation Law of the American Bar Association. An individual's right to recover for invasions of his solitude is defined in T.o. 21 of the Restatement as follows: "One who intentionally intrUdes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns, is subject to liability to the other for unreasonable invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."

Obviously this would bar eavesdropping upon private conversations by means of wire-tapping. leCrone v. Ohio Bell Tel. Co., 182 N.E.2d 15 (Ohio, 1961). There are decisions indicating that the rule prohibits peering into the windows of a home. Souder v. Pendleton Detective., Inc., 88 So.2d 716 (La. App. 1956). It also applies to persistent and unwanted telephone calls.

Carey v. Statewide Finance Co., 223 A.2d 405 (Conn. 1966). The press has rarely been involved in lawsuits in the intrusion area. Generally, the press conducts its infomnation gathering without the use of surreptitious devices. The case law recognizes the distinction between surreptitious information gathering as one form of invasion of privacy and the publication of that information as another. In 1966, the Liberty Lobby sued the late columnist, Drew Pearson, for his publication of some of the organization's secret documents. Liberty Lobby, Inc. v. Pearson, 390 F.2d 489 (D.C. Cir. 1968). These papers had been clandestinely copied by a Liberty Lobby employee and then given to Pearson. The lawsuit foundered, however, when the plaintiffs were unable to produce any evidence to show that Pearson was involved with the copying or removal of the

private papers from the Liberty Lobby offices.

A few years later, Pearson was sued again along with his associate, Jack Anderson, this time by former senator Thomas Dodd of Connecticut. In Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969), the Senator complained that documents from his fiies had been secretly copied by his own employees and given to the Washington writers. Dodd contended that the manner in which material was obtained invaded his privacy.

The Court held that the publishers cou ld not be held liable for the acts of the intruders. Thus, the press. need not fear an intrusion action unless it directs or participates in the intrusion itself.

Mere noises which disturb a church congregation are now an intrusion. Owen v. Henman, W. & S., Pa., 548 (1841). Neither are bad manners, harsh names, and insulting gestures in public enough. Lisowski & Jaskiewicz, 76 Pa. D. & C. 79 (1950). On the public street, or in any other public place, the plaintiff has no legal right to be alone; and it is no invasion of his privacy to do no more than follow him about and watch him there. Forster v. Manchester, 189 A.2d 147 (Pa. 1963).

Neither is it an invasion of privacy to take his photograph in public. United Staten. Gugel, 119 F. Supp. 897 (E.D. Ky. 1954). Lawyers who hire private detectives to keep supposedly malingering plaintiffs under surveillance outside of their homes will be relieved by these decisions.

Jackie Onassis found that she could not completely prohibit a free lance photographer from taking and selling photographs of her and her children. Galella v. Onassls, 487 F.2d 986 (2nd Cir. 1973). Donald Galella described himseif as a "paparozzo" (literally an annoying insect, roughly equivalent to the English "gadfly.") Photographer paparozzi make themselves visible and obnoxious to aid in the advertisement and sale of their works. Marlon Brando had once punched Galella, breaking Galella's. jaw and reportedly infecting Brando's hand. The Court held that Mrs. Onassis is a public figure and subject to news coverage, but Galella had acted unreasonably. The Court enjoined him from approaching Mrs. Onassis closer than 25 feet, from blocking

her movement in public places, and from any other conduct which would alarm or frighten her. Further restriction on Galella's taking and selling pictures was held to be improper.

It is of incidental interest to note that while Jackie Onassis is a public figure, the Supreme Court held on March 2, 1976, that Mary Alice Firestone, a party to a much pUblicized 17 month divorce action and an active member of Palm Beach's sporting set, is not. Time, Inc. v. Firestone, 44 L. W. 4262 (March 2, 1976).

Mrs. Firestone had participated in several press conferences during the stormy divorce proceedings. Her action was for libel rather than invasion of privacy, having been described in Time as an adulteress.

The case was remanded for trial of the negligence issue under Gertz.

The second "privacy" tort is that of publication of private information about an individual.

Tentative Draft 21 of Restatement, Second states this tort as follows: "One who gives publicity to a matter concerning the private life of another is SUbject to liability to the other for unreasonable invasion of his privacy, if the matter pUblicized is of a kind which (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public."

A leading case is Melvin v. Reid, 297 P. 91 (Cal. 1931), where an exhibited motion picture revived the past history and disclosed the present identity of a reformed prostitute who, seven years before, had been the defendant in a notorious murder trial. The California court grounded the action in a state constitutional provision which guaranteed to citizens the right to pursue and obtain safety and happiness. The Court said that although the events of Mrs. Melvin's past life were clearly in the public record and hence newsworthy, the use of her maiden name in connection with those events was protected. Actually, the California decisions stand apart from the decisions in other states in declaring the "social value test." Briscoe v. Reader's Digest Assn., 483 P.2d 34 (Cal. 1971). The California court could

find little social utility in a trial which resulted in negating much of Mrs. Melvin's efforts to regain a respected position in society. Plaintiffs have been successful in suits involving publicity given to the plaintiff's debts, Trammell v. Citizens News Co., 148 S.W.2d 708 (Ky., 1941); to medical pictures of the plaintiff's intimate anatomy, Banks v. King Pictures Syndicate, 30 F.Supp. 352 (S.D. N.Y. 1939); and to embarrassing details of a woman's masculine charaC'teristics and eccentric behavior, Cason v. Baskin, 27 So.2d 243 (Fla. 1945), second appeal 30 S.2d 635.

Bear in mind that in order to be actionable, the public disclosure must be of a matter which would be offensive and objectionable to a reasonable man of ordinary sensibilities. All of us lead public lives to some extent. Prosser, Law of Torts (4th Ed. 1971) 811 says that the ordinary reasonable man does not take offense at mention in a newspaper of the fact that he has returned home from a visit, or gone camping in the woods, or given a party at his house for a friend. It is qu ite a different matter when the details of sexual relations are spread before the public eye, Garner v.

Trlanble Publications, 97 F. Supp.

548 (S.D. N.Y. 1951), or there is a highly personal portrayal of one's Intimate characteristics or conduct.

Cf. Stryker v. Republic Pictures Corp., 238 P.2d 670 (Cal. 1951 ).

The third tort is that of publici-

ty placing a person In a false light.

T. D. 21 of the Restatement describes the ru Ie in these words: "One who gives publicity to a matter concerning a matter which places the other before the public in a false light is subject to liability to the other for unreasonable invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor has knowledge of the falsity or acted in reckless disregard of it."

It has previously been mentioned that Time, Inc. v. Hill was a false light case. Holmes v. Curtis Pubcontinued on page 142 October 1976/Arkansas Lawyer/141

., Privacy, continued from page 141

IIshing Co., 303 F. Supp. 522 (D.S. C., 1969), was one of the first cases involving this tort following Time v.

Hili. Holmes complained because the Saturday Evening Post had pUblished an unauthorized photograph taken while he was gambling at the Monte Carlo Club in the Bahamas.

The picture was captioned, "Highrollers at Monte Carlo Have Dropped as Much as $20,000 in a Single Night." The story involved Mafia influence in the Bahamas. Holmes claimed that the caption put him in a false light. The court said that Holmes was an innocent tourist who unwittingly became the subject of a photograph whose caption might have given false inferences about his character, but that he wou Id have to satisfy the malice rule and prove that the picture and the caption were published with knowledge of their falsity or with reckless disregard for the truth. Holmes then voluntarily abandoned his action.

Cantrell v. Forest City PUblishing Co., 95 S. Ct. 465 (1974) was a false light case which reached the Supreme Court. A jury verdict for the plaintiff was reinstated because the proof of knowledge or reckless disregard of falsity on the part of the reporter was sufficient to constitute malice. The reporter described the plaintiff's facial expression at the time of interview although he never talked to her or saw her.

There will obviously be a great deal of overlapping between defamation and false light cases. In Corabl v. Curtis Publishing Co., 273 A.2d 899 (Pa 1971), the Supreme Court of Pennsylvania reversed a judgment granting plaintiff's damage claim for invasion of privacy. In 1963, the Saturday Evening Post had published a story "They Call Me Tiger Lil," in which entertainer Lillian Corabi was connected with a murder and accused of masterminding a complex burglary scheme. So far as Mrs. Corabi was concerned, the court said that actual malice could be found on the part of the defendant. However, an invasion of privacy verdict in favor of the Corabi children could not be sustained merely because they were identified as the children of a woman to whom the article imputed guill or deep involvement in several 142/Arkansas Lawyer/October 1976

serious crimes. The court said that Mrs. Corabi was a pUblic figure and cou Id not claim an invasion of privacy upon publication of her biography. It was proper to include in the biography the names of the members of her family. The magazine argued that the burden was on the plaintiff to prove the falsity of the material of the biography as well as malice. The court rejected this argument holding that the defendant still must prove truth; if it cannot, the burden falls on the plaintiff to prove only malice, not falsity as well. The latter holding is suspect in the light of specific language of the Supreme Court repeated in Cox Broadcasting Corp. v. Cohn, supra, to the effect that a defamed public official or public figure must not only prove that a publication is false but that it was knowingly so or was circulated with reckless disregard for its truth or falsity. Obviously, when a plaintiff is su ing for an invasion of privacy based upon a non-defamatory falsehood placing him in a false light, the proof of publication of a falsehood is an essential element of the case.

Truth will always be an absolute defense to such a tort.

The fourth tort according to the Pros. .r categorization Is appropriation of an Individual's name or IIk_n for commercial gain.

The black letter law of T.o. 21 of Restatement, Second, describes the tort as follows: "One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for unreasonable invasion of his privacy."

There are a great many cases involving this form of invasion of privacy. One of them is Olsn Mills, Inc., of Texas v. Dodd, 234 Ark. 495, 353 S.w.2d 22 (1962). Olan Mills, professional portrait photographers, used without permission a photograph of Mrs. Dodd as part of its advertising campaign, mailing postcards bearing the photograph to 150,000 addresses over Ar1<ansas and surrounding states. Mrs. Dodd testified that she was embarrassed, she lost weight, and she couldn't sleep. A salesman came to her door and exhibited her picture to her in

his solicitation. The jury's award of $2,500 was held not to be excessive.

Plaintiffs who sue for appropriation deserve damages, not because they suffer some kind of severe mental distress, but because the defendant has used something which belongs to the plaintiff - his name or likeness - without compensation. In most appropriation cases, is not a right of privacy, but rather a "right of publicity" - that is, the right to control the commercial exploitation of one's self, that is involved. Heelan llIb.., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2nd Cir. 1953). Golfers Arnold Palmer, Gary Player, Dugg Sanders, and Jack Nicklaus have recovered for the use of their names without consent. Palmer v. SChoenhom Enterprt-. Inc., 232 A.2d 458 (N.J. 1967).

Ted Uhlaender represented several hundred major league baseball players in an action against a manufacturer of a baseball game which employed the names and play statistics of over 500 players. Uhlaender v. Henricksen, 316 F. Supp. 1277 (D. Minn., 1970).

Pat Paulsen, in the midst of his sportive 1968 campaign for the presidency, sued a poster company which had printed and sold a large picture of Paulsen with the words "For President" across the bottom.

The court refused to hold the defendant liable. Paulaen v. Per80flailty Postera, Inc., 299 N.Y.S.2d 501 (Sup. Ct. 1968). The court said that there were serious first amendment questions involved in the case stating, "When a well-known entertainer enters the presidential ring, tongue in cheek or otherwise, it is clearly newsworthy and of public interest."

In a growing number of recent cases, First Amendment language is creeping into the opinions that would not have been found prior to Time, Inc. v. Hili, supra, so predictions of the growth of this area of the law must be guarded. It is the plaintiff's name or image as a symbol of his identity that is involved here. Unless there is some tortious use made of it, there is no such thing as an exclusive right to the use of a name. It is only when a defendant makes use of a name or photograph to pirate the plaintiff's identity for some advantage of his own that he becomes liable. Privacy and the P..... Since

TIme, Inc. v.

Hili, 50 Washington Law Review 57 (1974).

Prosser has suggested that it would be desirable to merge the law of privacy and libel into a single tort.

Prosser, Privacy, 48 Calif. L.. Rev. 383 at 401 (1960). For example, the non-defamatory falsehood area of privacy law might be merged with the law of libel. The intrusion element of privacy law could be melted into trespass, and the appropriation area could be mixed with the law of literary property or contracts. Publication of private information could become an element, perhaps, of the newer tort of intentional infliction of mental distress. This would eliminate much of the "law of privacy" in all jurisdictions except those having privacy statutes. With the First Amendment defense contained in Time, Inc. v. Hili and the traditional defense of newsworthiness, the press seems to be well protected.

So long as hidden cameras, microphones, and other su rreptitious devices are not used, the press need not be exposed to actions claiming unlawful intrusion. One writer has suggested that the only additional protection necessary to preserve journalistic freedom of expression is to quarantine the judicial opinions of California to prevent infection of the nation. Privacy and the Pres.

Since Time, Inc. v. Hili, su pra

Reoponaibillty, continued from page 137

rules of a tribunal, a lawyer shall

(C) Permissive withdrawal.

If DR 2-110 (B) is not applicable, a lawyer may not request permission to withdraw in mailers pending before a tribunal, and may not withdraw In other mailers, unless such request or such withdrawal is because: (1) His client: (a) Insists upon presenting a

not withdraw from employment in

claim or defense that is not

a proceeding before that tribunal without its permission.

(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including

warranted under existing law

DR 2¡110 ployment.

Withdrawal

from

Em-

(A) In general.

(1) If permission for withdrawal from employment is required by the

and cannot be supported by good faith argument for an ex-

tension, modification, or reversal of existing law.

(b) Personally seeks to pursue an illegal course of conduct. (c) Insists that the lawyer pursue

giving due notice to his client, allowing time employment of other counsel, delivering to the

s course of conduct that is

illegal or that is prohibited under the Disciplinary Rules. (d) By other conduct renders it unreasonably difficult for the

client all papers and property to which the client is entitled, and

complying with applicable laws and rules.

lawyer to carry out his em-

(3) A lawyer who withdraws from em-

ployment shall refund promptly any part of a fee paid in advance that has not been earned.

(B) Mandatory withdrawal.

A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:

(2)

(1) He knows or it is obvious that his

client Is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously

(3)

(4)

injuring any person.

(2) He knows or it is obvious that his continued employment will result

(5)

in violation of a Disciplinary Rule. or physical condition renders it unreasonably difficult for him to carry out the employ-

(6)

(3) His mental

ment effective.

(4) He is discharged by his client

Phillip C.rrolli. a member o( the Rose Law firm o( Utf/e Rock; â&#x20AC;˘ Commissioner, National Confarence o( Commissioners on Uniform St.te Laws (1970-76); and a member o( the Internatlonel Academy o( Trial Lawyers. He has a record for distinguished service to the Bar - President,

ployment effectively. (e) Insists, in a mailer not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules. (f) Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees.

His continued employment is likely to result in a violation of a Disciplinary Rule.

His inability to work with cocounsel indicates that the bestinterests of the client likely will be served by withdrawal.

His mental or physical condition renders it difficult for him to carry out the employment effectively.

His client knowingly and freely assents to termination of his employment.

He believes in good faith, in a proceeding pending before a tri-

bunal, that the tribunal will find the existence of other good cause for withdrawal.

J- __

Puleskl County Bar Association (1961); Chairmen, Arkansas Bar foundation (1968-{J9); Secretary-Treasurer, Arkansas Bar Association (1959-61); and member o( the Arkansas Supreme Court Committee on Jury Instructions. ,'It

"'......

October 1976/Arkansas Lawyer/143

MaIpractitel

BY KENNETH R. REDDEN

THE PROBLEM The Profession faces a crisis. Public Relations have fallen to an all-time low.

The number of malpractice claims filed against practitioners is grO'Ning by leaps and bounds. Judgments are sky-rocketing. There is a five hundred percent increase in some insurance premium costs. A few insurers are cancelling policies and others getting out of the field

completely. One carrier recently complained that it cost $140,000 a month in counsel fees to defend a single case.

Another insurance company settled out of court in a payment of S2SO.(x)() on a S1.())(),(X)() claim. Private and professional groups are considering becoming self-insurers. A national Legal Research

Group reports having serviced ovef 100

recent malpractice cases.

Sound familiar? Yes indeed. But the above introduction refers to the Legal Profession and not to the Medical Profession. This is the real shocker which has just burst upon the horizon. Reputable commentators even state that the Malpractice panic faced by doctors in the seventies may well become a frightening reality for lawyers in the eighties.

The American Bar Association is so concerned it has just created a special task force to investigate the situation and render a report for remedial action.

A current issue of Time Magazine claims that the fundamental problem may be that too many State Bars have been lax

Editor's Note: The signals are all "red" concerning legal malpractice and professional lIab///ty Insurance. Yet few are aware of the growing scope of the problem, This article, MALPRACTICE!

by Kenneth R. Redden, not only points up the problem but also, more Importantly, points out protective measures for the Individual lawyer, The reader need only change the references to Virginia to Arkansas.

144IArkansas LawyerlOctober 1976

in disciplining lawyers except on grounds of gross misbehavior. "Until judges and Bar Associations find more effective ways of checking on the quality of legal services in their jurisdictions. a major share of the policing power will be left to individual lawyers and their angry clients."

The reputable New Yorl< Times reported in January, 1976, that olthe 320,000 licensed medical physicians in the United States. 5% or 16,())Q were either unfit or incompetent to practice and yet only 66 licenses to practice medicine are reYoked each year on the average in the United States. If a similar study were made for lawyers. what results would be revealed?

The article was published In recent Issues of the Legal Malpractice Raportar and of the Virginia Bar Association Journal, The Lagal Malpractice Raportar Is published monthly by the MICHIE Company - Law Publishers Since 1897.

We are Indebted to them for permission to reprint the article In Thll Arkan..a Lawyar.

Do we presently have too many incompetent lawyers? Chief Justice Warren E. Burger thinks so. He recently reported that "We are more casual about qualifying the people we allow to act as advocates in the courtroom than we are about licensing electricians." He went on to state further that "Between onethird and one-half of the lawyers who engage in serious litigation are not qualified to do so. This is a devastating criticism.

Chief Judge Irving R. Kaufman of the United States Court of Appeals for the Second Circuit, among many others, appears to agree with the Chief Justice. He proposes a special examination to determine which lawyers should be allowed to practice in the Federal Courts. This is already required in some federal courts such as the Western District of Texas.

I for one am concerned by the policy of some Law Schools to sanction a system whereby a law Student is forced to learn how to practice Law after graduation at the expense of his clients. This is not true for doctors, dentists, engineers, architects, ministers, veterinarians or undertakers. Why should it be so for lawyers?

No responsible legal educator would want to convert a Law School into a mere Trade School or a purely Bar Coach Class. But to devote three years solely to brooding about Justice and what the law ought to be to the complete exclusion of what the Law Is, wholly unrelated to the pressing current problems of life, would seem to be a bit too much. A proper mix between theory and practice is not only feasible but hi9hly desirable if our goal is to prepare our graduates for the successful prac路 tice of Law. As stated by Dean Albert M. Sacks in the Winter, 1976 issue of the Harvard Law SChool Bulletin. "American law schools have the special distinction of providing their students with professional training which embodies the intellec路 It

tual depth and range of the university and prepares them for on-the-job training. This balance isn't always easy, but for the most part, we are able to impart effective education in a manner and to an extent that is felt even though its elements cannot be articulated clearly."

An imaginative suggestion along these lines by Dean Michael Sovern of Columbia Law SChool is worthy of serious consideration. He recommends a full year of exposure to law practice, in some form or another, after a student has completed the second year of Law SChool, before the student is allowed to enroll for the third and final year of academic legal education. Unfortunately, the implementation of this innovative idea to date has been nil.

An even more extreme solution has been recommended by Justin A. Stanley, President-elect of the American Bar Association. He would eliminate the third year of law SChool and give students a National Examination at the end of the second year.

"Then the Supreme Courts of the States could specify what else a student would have to be examined on in order to be admitted to practice in their states." Stanley said. "Studies for these examinations could be offered by continuing legal education programs, structured and prescribed by the organized bar and the law professoriat."

As far as I know, every State has eliminated its former requirement of a period of practical apprenticeship before formal admission to the Bar. Perhaps the time is right to consider a return to this useful professional discipline in one form or another if Law SChools don't pravide it.

Last year Indiana became the first state to bear down on Legal Education by listing the 56 hours of instruction in specified required courses which a candidate would have to pass in Law SChool as a condition of eligibility to take the State Bar Examination. The

Association of American law Schools has understandably opposed this development. They resent this intrusion by non路academicians into their exclusive realm of curricular matters. But if the professional educators know what is best, why is there so much disenchantment with their finished product? And why did the American Bar Association in 1975 have to insist that every law SChool offer a required course in Professional Responsibility if it wishes to retain its accreditation? The American Bar Association has also reacted vigorously across the board by imposing higher law SChool accreditation standards which are to be strictly enforced.

Third year student practice is nOYl permitted in Virginia and a number of states. This is a most welcome development. But since this program must be under the close supervision of a lawyer, only a fraction of those in Law School will receive this valuable professional training. There is a one-ta-one training relationship in Medical SChools made possible by suitable financing but apparently the public and the professional legal educators do not think that Justice is as important as Health.

Minnesota proposes to alleviate the problem of too many "incumbent incompetents" after, rather than before, graduation by requiring successful completion of 45 hours of refresher courses by every lawyer every three years. This requirement of mandatory Continuing legal Education programs has been adopted elsewhere such as in Iowa although the organized Bars have mostly opposed it. Other states such as New York are reacting through stricter enforcement of disciplinary proceedings against lazy, alcoholic, dishonest, abrasive, discourteous or stupid attorneys (and judges tool). Certification of Specialists has been the solution proposed

by California and Texas.

The ultimate weapon. of course, for continued on page 146

Kenneth R. Redden, after his graduation from the University of Virginia, clerked tor U.S. Circuit Judge Armstead M. Dobie and practiced law In New York City /'efore returning to the Faculty of the University. His public service incIud.. consultancy to the Commonwealth of Virginia; U.S. Departments of State, Interior and Labor; Federal Judicial Canter and National Center tor State Courts and 14 Foreign Countries. Author of numerous books, he presently Is serving as Reporter to a Supreme Court of Virginia CommlNee headed by Judge A. Aubrey Mat/hews of Marlon to draft Model Jury Instructions. The Michie Company has just published his new service to the Bar entitled

Legal Malpractice Reporter.

October 1976/Arkansas lawyer/145

Melpracllce,

articles with

ance policy should be required to protect the public. Oklahoma, on the other hand, wants it to protect the lawyers.

(3) Read the advance sheets regularly for the Supreme Court of Virginia, the Federal District Courts of Virginia, the Fourth Circuit Court of Appeals and the Supreme Court of the United States plus two or three legal periodicals. Keep up-

provocative titles such as "How to Fire and Sue Your Attorney."

To dramatize the seriousness of the

to-date with municipal. state and federal legislation. Preventive Law is the best therapy against malpractice.

In conclusion, in the present epidemic of legal malpractice liability, we face a problem of monumental proportions.

This is therefore the time for all of us,

situation, one has only to look at a re-

(4) Anend at least two National and State Continuing Legal Educational Ssminars each year. Indeed, the South

maturely and react constructively 50 that we may continue to discharge as suc-

continued from page 1:Jg legal incompetency is a suit by an unhappy client against his attorney for

damages based upon alleged malpractice in the handling of his case. Such action is unfortunately encouraged by popular magazines and national news-

papers which publish

cent development in Illinois where the statute of limitations does not begin to run against a claim for legal malpractice

Carolina Bar conducted a highly suc-

until the client first discovers that his lawyer was negligent. This means that a lawyer can be sued long after he has ra路 tired from the active practIce of law and he must necessarily keep his malpractice insurance in effect until the day of his death.

teous treatment of your clients at all

PROTECTIVE MEASURES

times. Respond promptly to their leners and phone calls. Keep them posted.

cessful and well anended Institute on Legal Malpractice in January, 1976.

Bahimore did likewise in December, 1975. We perhaps should follow their leadership.

(5) Be especially mindful of your cour-

What can you do to protect yourself

Don't make commitments you cannot

from this malpractice onslaught? Here are a dozen suggestions for openers.

keep. Don't overcharge. Itemize your

(1) John Malone, Executive Secretary of the California Bar, warns that" An attorney who does not take malpractice insurance today is just a damn fool."

Assuming that he is not talking about you, be certain that you not only carry malpractice insurance but adequate insurance. How much is enough? A 1975 California case held a lawyer liable to

whom you are liable) is well trained and efficient. This is a constant on-going process.

(7) Choose your partners and associates (for whom you are liable) as carefUlly as you choose your spouse.

(8) Take an active interest in our four Law Schools. Help us where we are weak. Encourage us where we are right We seek and need your guidance in our

constant struggle to upgrade the quality of our academic performance.

broadest coverage. If you only have "Claims Made" protection, for example,

(9) You owe some of your professional time and guidance to the indigent They deserve ,the best ot legal representation.

But remember that you can be sued by a

direct its attention to the malpractice problem. Place it on a forthcoming agenda for discussion, a survey and a recommendation for solution. For exam路 pie, some states such as Arizona, where only 60% of the lawyers carry malpractice Insurance, are considering the adoption of a mandatory insurance requirement for every member of the Bar

ARKANSAS BAR ASSOCIATION

Special Meeting - House of Delegates - Camelot Inn, L.R.

Ssptember 16, 1976 Fall Legal Institute Camelot Inn, L.R.

Ssptember 16-18, 1976 Annual Tax Institute Arlington Hotel, H.S.

November 18-20, 1976 semi-Annual Meeting - House of Delegates路 Camelot Inn, LR January 20, 19n

Midyear Meeting

Camelot Inn, L.R. January 20-22, 19n Natural Resources Law Institute (formerly Oil & Gas Institute) Arlington Hotel, H.5.

February 24-26, 19n

client for malpractice even if he does not

pav a fee.

(10) Keep accurate and complete records, especially a detailed daily log, so that you may easily be able to successfully refute any unfounded claim made aaainst you by a client

(11) Uon't accept a complicated case in an area in which you are not fully

through a single group policy. Washing-

competent. Refer it to or associate with a lawyer who is a recogniZed specialist on

ton claims that such mandatory insur-

the subject.

146/Arkansas Lawyer/Uctober 19"{6

'T-_

publishes the original claim as "news"

in large bold type on the first page and

your malpractice policy and insist on the

are in bad shape.

12) Encourage your Bar leadership to

cessfUlly as possible our heavy duty of responsibility to the public. ,c.

tually dismissed in court but regretlably damage the reputation of the lawyer when they are first filed. The local Press

page.

16) Be certain that your office stalf (for

instead of "Occurrence Insurance," you

collectively and individually, to reflect

trarily taken out of thin air. Unhappy cli-

injury, the client's successful second lawyer then turned around to sue the same first lawyer on the ground that the

experts who specialize in suing their fellow legal brethren.

Also be certain that you understand

out-of-town, install one Immedlate/y.

ents often file unwarranted actions against their lawyers which are even-

buries the subsequent dlsm issal of the case in italicized Latin on the obituary

second lawyer not only won a judgment against the first lawyer for S25,OClO in compensatory damages but also for $35,000 in additional punitive damages.

One might note in passing that this second lawyer is one of a growing cadre of

don't have an office routine or foolproof "tickler" or reminder system which you check religiously every day, with provision made for coverage when you are

statements instead of submitting a round figure which seems to have been arbi路

his client for $100,00 for having engaged In "Sloppy Research." Adding insult to

first lawyer had originally charged the client an exhorbitant fee. This time the

(12) Meet your deadlines. Failure to file promptly is the main area in which most malpractice cases arise. If you

Tax Awareness Institute Camelot Inn, L.R. March 24-26, 19n Annual Meeting Arlington Hotel, H.S. June 8-10, 19n Annual Meeting - House of Delegates - Arlington Hotel June 10, 19n

INSURANCE: OCCURRENCE TYPE?

STATUTE OF LIMITATIONS???

PROFESSIONAL LIABILITY INSURANCE PROGRAM

REPORT OF CLAIMS REVIEW COMMITTEE

The Arkansas Bar Association and the Valley Forge Insurance Company have operated for the past five and one-half years under an agreement for a lawyers' professional liability insurance program. This agreement terminated July 1, 1976.

Under this arrangement an "occurrence"-type policy has been made available to the members of the Association. Valley Forge is willing to continue to offer for an indefinite period an "occurrence"type policy but only upon an 82% increase in premium.

The Sar Alloclatlon's ClaIms R. vIew Comml:t.. Is charged with the re.pon.,blllty of combating the root

cau.e. of lawyers' profelllonalllablllty claIm. and to work with the In.urance company with which the Alloclatlon'. members have theIr profelllonal liability In.urance.

The members of the Claims Review Committee have not accepted their responsibilities lightly. They recognize that Arkansas lawyers want the very best available professional liability insurance and at the lowest possible premium.

After much consideration, the Committee members unanimously voted to recommend that an "occurrence"-type policy continue to be made available to the Association's members even though

such a policy is going to cost 82% more in the future than it has in the immediate past.

An understanding of the two types of lawyers' professional liability insurance which are currently available is required if lawyers are to understand the reasons for the Committee's recommendation. The two types of policies currently available are the "occurrence"-type policy and the "claims reported"-type policy. The "occurrence"-type policy provides protection for those negligent acts, errors, or negligent omissions which occurred during the policy period, irrespective of when a claim might be made against the insured. The "claims reported"-type policy provides coverage for claims which are made and reported while the policy is in force.

The statute of limitations governing suits for malpractice against attorneys is three years for actions not based on contract and five years for actions based on contracts. The applicable statutes are Arkansas Statutes Annotated Section 37-206 and Arkansas Statutes Annotated Section 37-209, respectively.

The premium for the "claims reported"-type policy is approximately 75% of the premium for the "occurrence"-type policy. The Com-

mittee members felt that it was to the best interest of Arkansas lawyers to have insurance that would provide coverage for acts committed while a policy was in force regardless of when a claim was made, even if it meant paying a higher premium. It was for this reason that it recommended the "occurrence"type policy.

The only known company still writing an "occurrence"-type policy is Valley Forge Insurance Company and it is only offering it in Arkansas and one other state. All other companies writing lawyers' professional liability insurance have already switched or are in the process of switching to the "claims reported"-type policy. .

The members of the Committee also unanimously recommended that the Arkansas Bar Association sponsor a bill in the next Legislature which would set a three-year statute of limitation for all suits against lawyers for acts of malpractice, regardless of whether they were based upon contract or on tort. It was felt that passage of such a uniform statute of limitation could be of some help in keeping the cost of lawyers' malpractice insurance at a cost which lawyers could afford.

0).

.......

October 1976/Arkansas Lawyer/147

â&#x20AC;˘

Editor's

AEGIS

the

IS

Comment~

a feature of

Arkansas

AssociatIon s tIonal

8ar

educa-

program

con-

cerning docket control and orher areas of high risk experience in

profess/onat cases.

liability

SAFEGUARDING YOUR PROFESSIONAL FUTURE

LEGAL MALPRACTICE CLAIMS EXPERIENCE UNDER ASSOCIATION'S PROFESSIONAL LIABILITY PROGRAM Attorneys frequently express surprise when told that claims are paid under Lawyers' Professional Liability Insurance policies.

These claims are not publicized because the vast majority are settled without suit being instituted and details are thus not widely known.

Between January 1, 1970 and April 30, 1976, a total of 78 claim files were established on Arkansas Lawyers insured through the Professional Liability Plan sponsored by the Arkansas Bar Association.

Of the 78 claims reported, 26 have been closed with claim payments totaling $221,489.16.

32 claims reported were closed without any claim payments being made, and as of April 30 there were 20 claims pending with reserves amounting to $86,500.00 In addition to claim payments, claims expenses in the amount of $43,885.71 have been paid. Of this amount, $6,590.00 was paid in connection with claims closed without payment and $12,808.00 has been spent for claims expenses to date on claims still pending.

Of the 26 claims paid, 16 were the result of the attorney failing to do something within a prescribed time. Such matters as, not knowing what the statute of limitations was in the jurisdiction involved, failure to file timely answers, and failure to file against an estate within the prescribed time, are causing these losses.

Claims have also been filed because of erroneous advice, errors in the preparation of work, improper interpretation of statutes and errors in title opinions among others.

THE ARKANSAS BAR ASSOCIATION

148/Ar1<ansas Lawyer/Oclober 1976

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If you become disabled, your earning power could be interrupted. Maybe for a long time. But your everyday expenses might well continue.

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It makes sense to buy a Disability Income Plan ahead of time ... one that goes into action when the unexpected happens. We have the Plan for

For costs and further coverage details, including exclusions, limitations and the terms under which the policy may be continued in force, contact the plan administrator.

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lUI

JURIS DICTUM

by C. R. Huie Executive Secretary, Judicial Department

The Annual Raport of tha Judicial Department containing court statistics for

1975 will ba back from tha prlntar In tha VllfY naar futura. Whila statistics as a 9enaral rula maka dull raadlng, i~ creased public Intarast In tha prograss and conduct of our court systam should make tha following portions of tha raport Intarasting to lawyar and fayman allka.

In tha fast Issua of The Artu...... Lawyer we covared tha Suprema Court and Courts of Ganaraf Jurisdiction. In this and tha naxt Issuas wa will discuss Courts of Umlted Jurisdiction.

COURTS OF LIMITED JURISDICTION Courts of limited jurisdiction in Arkar>sas are County Courts, Courts of Common Pleas, Municipal Courts, City Courts, Police Courts, and Justice of the Peace Courts. These are Arkansas' "local courts", and they playa vital role in the maintenance of peace and order in the various communities of the state and in providing safety in our streets and highways.

According to the Task Force Report on the Courts made by the Presidenrs Commission on Law Enforcement and Administrative of Justice in 1967, 90 percent of the Nation's criminal cases are heard in the courts of limited jurisdiction.

The report stated that as a deterrent to crime, the courts of limited jurisdiction are more important than any other at our institutions with the possible exception of the police force, and concluded that no program of crime prevention will be effective without a massive overhaul of the local criminal courts, The Arkansas Judicial Department has been able to provide assistance to these courts through two federally funGed programs: the Governor's Office of Coordinator of Public Safety and the Arkansas Commission on Crime and Law Enforcement. Mr. A. Brooks Griffith, Coordinator of Public Safety, General Gerald W. Johnson, Director of the Arkansas Commission on Crime and Law Enforcement, and their staffs are commended for their cooperation.

150/Arkansas Lawyer/October 1976

CONTINUING JUDICIAL EDUCATION The Municipal Judges' Council and the Arkansas Judicial Department. with the cooperation of the Governor's Office of Coordinator of Public Safety and the Arkansas Commission on Crime and Law Enforcement. sponsored three instate seminars for Municipal CourtJud\r as. Also, five Municipal Court JUdges attended out-of-state programs.

The three in-stage seminars for judges were held at the Arkansas Bar Association Center In Little Rock, The first two dealt with the problem of alcohol and highway safety and were conducted upon a program prepared for the U.S. Department of Transportation by Apartment Associates, Inc, of Cambridge, Massachusetts. These seminars were three days in duration and concentrated on a team approach to solving the alcohol-traffic safety problem. The third seminar Involved a discussion of the Revised Criminal Code with members of the Criminal Code Revision Commission serving as discussion leaders. Thie meeting was attended by both Municipal and Circuit Court Judges.

The five judges attanding out-of-state programs and the programs they attenGed are: Milas Hale and Edward Grauman - National Conference of Special Court Judges; Dean R, Mortey and Lindsey Fairley - Conference on Criminal Justice Standards for Special Court Judges, National College of the State Judiciary; and, Jim Burnett - Evidence in Special Courts, National College of the State Judiciary.

Additionally, the Municipal Judges' Council held two business meetings during the year. The Judges discussed, among other things, the possibility of the salaries and retirement benefits of both judges and clerks being paid by the state and based on a unifomn classification schedule.

The Association of Municipal Court Clerks held their annual meeting in Hot Springs in conjunction with the Annual Convention of the Municipal League.

This meeting included discussions on accounting procedures and the administration of the new OWl law.

COUNTY COURTS County Courts were established by Article 7, Sections 1 and 28 of the Arkansas Constitution. The Court is presided over by the County Judge, who, in addition to his duties as Judge of the County Court. is the business manager of the county.

The County Judge is elected by the voters of his county for a two year term, and is required to be at least twenty-five years of age, a citizen of the United States, a man of upright character, of good business education and a resident of the State for two years before his election, and a resident of the county at the time of his election and during his continuance in office (Ark. Const. Art 7, Sec. 29).

Ark. Stats. Ann. Sec. 22-601 provides that the county court of each county in this state shall have the following powers and jurisdiction: exclusive original jurisdiction in all matters relating to county taxes, in all matters relating to roads; to order the erection of bridges, and direct the repairing of same; the appointment of viewers, reviewers and overseers of roads; to superintend all ferries, paupers. bastardy cases, vagrants and the apprenticeship of minors; to fix the places of holding elections; to audit, settle and direct the payment of all demands against the county; to have the control and management of all the property, real and personal, for the use of the county; to disburse money for county purposes, and all other cases that may be necessary to the internal improvement and local concerns of the respective counties.

Juvenile and bastardy proceedings make up the majority of the case load of cou nty cou rts.

JUVENILE COURT REFEREES Beginning In 1927, Act 177 authorizad the appointment of a Referee by the Judge of the Juvenile Court (County Judge), in those counties having a population of 50,000 or more. Because of this population requirement, only five counties were eligible under the law. Between 1927 and 1969, County Judges in three countieS (Pulaski, Mississippi, and

victs and that any juvenile taken into custody is entitled to bond within the discretion of the judge having jurisdiction over the malter.

Appeals from a decision of a Juvenile Referee to the County Judge is a malter of right in all cases. The appeal is heard de novo by the County JUdge. Appeals from a decision of a County Judge to Circuit Court are likewise malters of right and are to be heard de novo.

The use of Juvenile Court Referees has been initiated in 39 counties. not only for the purpose of handling the large juvenile court caseloads in the counties where such exist, but also to provide experienced and capable personnel for the Juvenile Courts. Juvenile

3. The workload of some Circuit and

problems in our modem society are

quarterly court of common pleas on their

varied and complex. This fac~ coupled with the fact that a juvenile proceeding is a type of judicial hearing. makes it desirable that Juvenile Courts be ae!ministered by legally trained persons experienced in juvenile law and familiar with juvenile problems. Even though a county may not presently have a heavy caseload in the juvenile area, the appointment of a qualified referee by the County Judge can provide this capable administration for the Juvenile Court.

The use of the referee in Juvenile Courts provides at least three advantages:

respective counties. which shall be a

1. Through the proper selection of the referee, the services of a person trained and experienced in the field of law. juvenile relations. or both may be utilized.

2. The workload of the County Judge is reduced somewhat by the delegation of this responsibility.

Municipal Judges who have been frying juvenile cases can also be r&lieved by shifting these malters to the referee.

COURTS OF COMMON PLEAS

Courts of Common Pleas have been established in various counties by spE>cial acts. Presently, there are thirteen such courts existing in the state. These courts are authorized by Article 7, Section 32 of the present Constitution. which reads as follows: The General Assembly may authorize the judge of the county court of anyone or more counties to hold severally a

court of record with such jurisdiction in

matters of contract and other civil matters not involving title to real estate as may be bested in such court Jurisdiction of Courts of Common Pleas is generally limited to civil actions in which the amount in controversy does not exceed 51.000. These Courts are presided over by the county jUdge and appeal may be taken to the circuit court, where trials are de novo. The courts

exist in the following counties: Ashley.

Chicot. Crittenden, Cross, Desha, Drew, Garland, Lee, Lonoke. Madison, Mississippi, Nevada. and Prairie.

Filings in Courts of Common Pleas have been rather stable in the past with very Iiltle change in the overall number of filings from year to year, 364 cases were filed in Courts of Common Pleas during 1975, with 206 in Ashley County alone. (To be continued In next Issue).

.1- _"

c_

~

Washington) appointed referees to har>die juvenile cases.

In 1969 the Arkansas legislature. by Act 404. eliminated the population r&quirement and provided that all Juvenile Courts could appoint Referees with the peNler to hear the decide cases involving juveniles up to age sixteen. A hiatus in the law resu Ited as to juveniles over sixteen but under eighteen years of age, but was remedied in 1973 with the passage of Act 537 authorizing Referees to hear all juvenile cases up to the age of eighteen.

Act 451 of 1975 superseded all pr&vious legislation relating to juveniles by creating a new juvenile code. The oode's purpose is best described in the Act itself: In cases of delinquency of juveniles in need of supervision. as far as practicable. the juvenile shall be treated not as a criminal, but as misdirected. misguided, and in need of aid. encourag&men~ assistance and counseling. and if such juvenile cannot be properly cared for and corrected in his own home with the assistance and help of a probation officer or other persons designated by the juvenile court, that he be placed in a suitable home, agency, institution, or other facility where he may be helped, educated, and equipped for useful citizenship.

A "juvenile" in the code is defined as any person who has not yet reached his eighteenth birthday, thus leaving no definitive problems open as to the class about which the Act is concerned.

The new code places jurisdiction over a juvenile in the Juvenile Court presided over by the County Judge or, at his discretion, he may appoint a referee who serves at the judge's pleasure. A referee 90 designated is empeNlered with the same authority as the County Judge when acting as Judge of the Juvenile Court.

Every Juvenile Referee appointed after July 1, 1975 must be an attorney licensed to practice law in the State of Arkansas.

However, all those presently serving as Juvenile Referees who are not altorneys may be reappointed to their positions.

Act 451 further provides that each Prosecuting Attorney or his deputy. when so requested by the Juvenile Court, shall prosecute juvenile cases. Moreover, the Act empeNlers a juvenile judge to appoint defense counsel in appropriate cases. County Judges are also given the peNler to designate probation officers for a Juvenile Court The Juvenile Court Judge may. at his discretion, transfer a criminal violation committed by a juvenile to any other court having jurisdiction over the matter.

The new code provides that a juvenile, while incarcerated awaiting trial, shall not be confined in a cell with adult cor>-

October 1976/Arkansas Lawyerl151

ARKANSAS BAR ASSOCIATION 78th

ANNUAL MEETING

JOHN H. ~PBELL Ka.,..a City, Mluourt 152/Arl<ansas Lawyer/October 1976

WILLIAM J. "Outstanding La

.:;.........:._,-.......;

IOUTSTANDING LOCAL BAR ASSOCIATIONS I

October 1976/Arkansas Lawyer/153

THE PANAMA CANAL -DARRELL F. BROWN

The Canal Zone embraces a 500 square mile area on the Isthmus of Panama, with a resident population of <:Ner 40,000. This figure represents citizens of the United States as well as citizens of other countries. More important within the confines of the Canal Zone is a manmade waterway, called the Panama Canal. In recent months, the Panama Canal has become the focal issue of much discussion and debate.

This article is designed to provide general information to Arkansas lawyers re Panama, the Canal Zone and its judiciary.

The Canal was constructed to facilitate the passage and transit of various types and sizes of marine vessels from the Pacific to the Aliantic or vice versa.

The Canal proper Is 50 miles long from deep water in the Atlantic to deep water in the Pacific and runs from Northwest to Southeast across the Isthmus of Panama A successful transit or passage from ocean to ocean usually requires about eight hours, through one of the largest manmade lakes in the world, Gatun Lake. Even today, the Canal is considered as an ingenious and magnificant engineering feat and operates on a lock chamber system; i.e., ships are raised from either ocean to the level of

Gatun Lake, which is 85 feet abc:Ne sea level, and lowered into the ocean with the aid of lock chambers which are 110 feet wide and 1000 feet long. As a ship enters a lock chamber, it is raised or lO'Nered eighty five feet in a continuous flight of three steps by water pouring into the chambers located at three different

points within the Canal. These lock chambers are known as Gatun Locks, Pedro Miguel Locks, and the Mlraflores Locks, through which ships must pass in order to complete a transit.

While construction of the present Canal began as early as 1904, it was not opened to commercial ship traffic until

August 15, 1914. This seemingly lengthy construction period may be attributed to a number of factors. The chief factors responsible for the 10 year period of can156/Arkansas LawyerlOctober 1976

struction related to 1. the difficulties and obstacles encountered in excavation of solid rock, 2. relentless efforts to discover a cure and prevention for the diseases of yellow fever and malaria, and 3. procurement of manual laborers.

Having <:Nercome the many obstacles encountered, this international waterway was opened, resulting in enormous say路 ings in terms of expenses as well as time for transits from the Atlantic to the Pacific and vice versa.

PANAMA AND THE CANAL

This waterway, located in Panama, is situated in the middle of a country with a very rich history seasoned with adventurers, explorers and pirates such as Christopher Columbus, Sir Francis Drake, Pirateer Henry Morgan who sacked and burned Panama, as well as Vasco Nunez de Balboa, who prl>claimed the Pacific as the South Seas.

Because of Panama's unique geographical location, it served as a Crossroad of Commerce' for gold, silver, jewels and slaves in the 1500's when Panama was a subject of Spain. Even the Spanish spoke of the construction of a Canal route through the Isthmus as early as the 1500's. At that time Spain had intentions of expanding its territorial possessions and, of course, a short cut through Panama would have been very beneficial in achieving its objective. After Panama's independence from Spain on N<:Nember 28, 1821, Panama became a part of New Granada (now Colombia). In 1903, however, Panama successfully and skillfully revolted from Colombia After its independence from Colombia, Panama inked a treaty with the United States wherein the United States would guarantee the independence of Panama, as well as provide for construction of a canal.

Before the venture of the United States into Canal Construction in 1904, however, the French labored for over twenty years on the Isthmus, beginning in 1880 under the guidance of the world renowned Frenchman Ferdinand de

Ed#or's Note: Today, the Panama Canal Issue Is divisive - threater>Ing to split the Congress, the Executive and Legislative Branches of our Government - and possibly even the American people. Nothing will be decided until after the November 1976 elections - If then. In any event, this article on The Panama Canal Is a unique opportunity to study the area.

A member of the Arkansas Bar and the Arkansas Bar Association, Author Darrell F. Brown sits as Un#ed States Magistrate at Crlstobol, Canal Zone. In fact, he Is the youngest U.S. Magistrate ever appointed - at age 24 In 1972. His birthplace Is Horatio. Arkansas. He received

his J.D. from the University of Arkansas, and has done course work

at the National College of State Judiciary at Reno. He Is also a member of the National Conference of Special Court Judges and the American Bar Association.

Judge Brown's article Is strictly informative gIving the reeder background on the Canal Zone's history and courts.

lesseps, famous for his engineering and construction of the Suez Canal. The project, however well conceived, ultimately was to result in failure attributable to a combination of tropical disease epidemics and financial difficulties. As a consequence of the French Project failure, and a 1904 treaty with Panama, the United States purchased the equipment used by the French group, conquered the horrible epidemic diseases of yellow fever and malaria and constructed the canal.

What motivated the Construction of the Canal? Prior to the actual signing of the treaty and its ratification, the United States was awakened to the importance of Central America when the WARSHIP Oregon speeded around the Cape Horn from San Francisco to Cuba, 13,400 miles rather than 4,600 miles by way of the Canal, during the Spanish American War. As a resuh, Congress, by way of the Panama Canal Act of June 28, 1902, gave to President Roosevelt the authority "to acquire all rights ... heretofore held by the French and to acquire land

and the right to build a canal".

1904 TREATY In 1903, the year of Panama's Independence from Colombia, Secretary of State Hay and Bunau - Varilla, Envoy Extraordinary and Minister Plenipotentiary for Panama, inked the treaty which gave rise to the construction of the canal and a guarantee for independency, by the United States, for Panama Many opponents to the present treaty hasten to point out that the Envoy Extraordinary inked the treaty for reasons personal in that he not only held stock in the defunct French Canal Company but was a French citizen as well. The proponents for a new treaty further point out that the treaty did not bear the proper signatories who were dispatched from Panama to sign the treaty but who arrived only after Varilla had closed the negotiations for Panama Nevertheless, the United States through this treaty acquired the rights to construc!. operate, maintain, and defend a manmade ditch pursuant to the treaty executed in 1903 and ratified by Panama

the same year. The same treaty was ratified in 1904 by the United States.

Since the ratification by the two countries, there have been two major modifications occurring in 1936 and 1955.

The basic provisions establishing the status of the Canal Zone are contained in Articles II and III of the 1903 convention which provides as follows with its modifications: ARTICLE II The Republic of Panama grants to the United States In perpetutly (emphasis added) the use, occupation and control of a zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said Canal of the width of ten miles extending to the distance of five miles on each side of the center line of the route 01 the Canal to be constructed; the said zone beginning in the Caribbean Sea three miles from mean low water marl< extending to and across the Isthmus of Panama into the Pacific Ocean to a distance of three marine miles from mean

continued on page 158

Aeriel v1_ 01 Getun Locke

October 1976/ArI<ansas Lawyer/157

J

Canal,

continued from page 157 low water mark with the proviso that the cities of Panama and Colon and the harbors adjacent to said cities, which are included within the boundaries of the zone above described, shall not be included within this grant ...

The Republic of Panama further grants in like manner to the United States in perpetuity all islands with the limits of the zone above described and, in addition thereto the group of small islands in the Bay of Panama, named Perl co, Naos, Culebra and Flamenco.

ARTICLE III "The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise If

n were the lOvereign of the te"nory wfthln which said lands and waters located to the entire exclusion 01 the exercise by the Republic of Panama of any such lOvereign rights, power and authority".

The provisions cited above have been and continue to be topics for discussion and debate In attempts to resolve the issue as to whether the United States is sovereign over the strip of land called the Canal Zone or whether Panama retains "titular" or "reversionary sovereignty" over the Canal Zone, reducing the United States role to that as lessee.

See Whiteman, Digest of International Law, Vol. 1, pp. 267, 268. Department of State Publication 7403 (1963). Department of State Current Polley No.9, November 1975, Bureau of Public Affairs.

Wilson vs. U.S., 204 U.S. 24; Canai Zone va. Coulson, Canal Zone Supreme Court SO, No. 71-0125; Roach vs. United States C.A. 5th Cer. Cert. denied, 406 U.S. 935 (1972). Reported below 543 F. 2nd 1054.

In the October term of the United Supreme Cou rt, a tax payer su it raised questions which required the court to make a definite statement as to the interpretation to be given the 1904 treaty. The piaintiff sought an injunction to restrain the Secretary of State from paying out tax payer money for the construction of the Canal or borrowing money for that purpose. Among other things, the plaintiff complained that the "Canal Zone was no part of the territory of the United States" and therefore the government was powerless to do any work in the Canal Zone with tax payers money without some other action on the part of Congress. The court disposed of his complaint and course of action by citing Articles II and III of the 1904 treaty and stating tha~ "it is hypercritical to contend that the title of the United States is imperfect and that the territory described does not belong to the nation because of the omission of some of the technical terms used in ordinary conveyances of

,

Gaillard Cut at Deep_, excavation Section of canal between Gold and Contractors Hills in June 1913.

158/Arkansas Lawyer/October 1976

real estate". See Wilson vs. U.S. 204 U.S. 24.

Just one year later in 1907, the Canal Zone Supreme Court, organized under Ac~ I, of 1904, remarked that the United States is not the owner in fee of the Canal Zone. It has only the use and occupation as long as it complies with the tenms of the treaty. See Canal Zone vs. Coulson, Canal Zone Supreme Court, SO. And in the same year of the Canal Zone Supreme Court Decision, Secretary of State Bonoparte stated that "the sovereignty over the Canal Zone is not an open or doubtful question" and that "the omission to use words expressly passing sovereignty was dictated by public policy. Instead of referring to sovereignty, descends to particular 'all rights, power and authority' that belongs to sovereignty and negatives any such sovereignty rights, power and authority

ORGANIC LAW OF THE GOVERNMENT OF THE CANAL ZONE AND EARLY CANAL ZONE COURTS By executive order of May 9, 1904, President Roosevelt established a governing body in the Canal Zone known as the Isthmian Canal Commission (I.C.C.), and delegated to it the legislative powers to define the rights of Canal Zone inhabitants which included not only U.S. citizens but non U.S. citizens from as far as China, and those who passed through the zone. Today the resident population amounts to over 40,000 but transients passing through the zone or the Canal itself numbers in the millions annually. On June 16, 1904, after ratification of the treaty by the United States, Panama ceased exercise of jurisdiction and ordered all of its officials to do the same. However, due to the diffi-

in the former sovereign".

culties of transition from one goverrr-

It must be noted that from the 1904 treaty occurring to each of the principal parties were at least five advantages, to wit: 1. guaranteed independence to Republic of Panama, 2. reception by Panama of 10 million dollars plus an am· nity of over 2 million dollars, 3. construction of a ship canal, 4. the French Canal Company received 40 million dollars for equipment and other rights, 5. the United States received a grant in perpetuity (Whatever this means) to exercise authority as if it were sovereign.

From the treaty, case law and the various authoritative declarations made past or present, it is very clear that the issues raised as to sovereignty must u~ timately be resolved through the courts unless Congress is able to clear up the ambiguities inherent in the 1904 treaty.

Since the issues of treaty interpretation and validity are cunrently the subiects of political debate, re abrogation of the 1904 treaty and renegotiations of a more modern treaty, this author will defer dis-

ment to another, some officials were requested to remain temporarily after this transition period elapsed. Months later the United States and its personnel assumed total jurisdiction over the Canal Zone.

In the earty construction days of the Canal, it is interesting to note that jurisdiction was dispensed with by the Chief of the Isthmian Canal Commission, Colonel Goethal. Most books refer to the Colonel's court as the Court of Last Resort. Colonel Goethal was the primary man, along with Colonel Gorgas, responsible for the successful construc· tion of the Canal. His jurisdiction as a jUdge is nowhere documented. He was not a lawyer yet his decisions, it is written, were the fruit of deliberation and all with an Idea of what was good for the Canal. For example, one case wherein Goethal sat as Judge one Sunday moming (which was the day set for trials so as not to interfere with canal work) in:volved a Jamaican couple, the wife com· plalned that her husband would not allow her to keep her earned wages. To which the Jamaican husband replied that under English law, a man had a right to control his wife's wages. Goethal quickly snapped, it is written, that if you want English law, I will deport you to Jamaica where you can get all you need.

The Jamaican allowed the wife to cor>trol her wages. See Panorama of the World Legal Systems (1936) Wigmore.

The "Court of Last Resort" was, of course, only a temporary but convenient system which lasted for only a short period beginning from June 16, until Act I of August 16, 1904, went into effect Act I created the judiciary and laws which were to prevail for no more than 10 years. New criminal laws were promulgated by the I.C.C. through Its legislative powers modeled from the Puerto Rican Code while the Civil law remained

cussion of these items until a Ister article.

•

PANAMA COURTS In order to understand the Canal Zone court system, it is appropriate that brief comments in reference to the organiza· tion of the Republic of Panama Judicial System be made. At the time of the 1904 treaty, Panama maintained itself under the Colombian Code. The court organization consisted of a Supreme Cou~ or a Superior Tribunal composed of several jUdges, one chamber having civil and one criminal cases; circuit courts, municipal courts presided over by alcades who held special sessions for particular domestic and family problems, and a court presided over by inspectors of the police. As you will note later, this system of courts served as a model or pattern for the Canal Zone Court organization.

essentially the same as the Colombian Civil Code which was translated into English. The act created a Supreme Cou~ three circuit courts existing in three judicial districts serving five municipalities with their respective courts in the Canal Zone. As indicated earlier, the first Canal Zone organization of courts closely paralleled the Panama Court System.

Incorporated within the first set of laws of the Canal Zone per instructions of President Roosevelt were the "cerlain principles of Government which have been made the basis of our society and nation and that are essential to the rule of law and the maintenance of order".

He was referring to the Bill of Rights.

This instruction was necessary because the Constitution did no~ and to this date does not specifically apply to the Canal Zone. Consequently, the first set of laws incorporated basic personal civil rights and guarantees set forth in the Constitution. In addition to the legislative inter>tion to withhold application of the Cor>stitution to the Canal Zone, Congress also failed to include the Canal Zone in its consideration for judicial purposes, leaving this responsibility to the I.C.C. However, the I.C.C. could not expand federal jurisdiction or confer appellate jurisdiction on the states. Consequently, appellate jurisdiction had to be established and financed In the Canal Zone by the commission. Such a responsibility created a financial burden upon the I.C.C. (now Canal Zone GovernmenVCompany) and as a resul~ the commission suggested to Congress that appeals from "local courts be taken to a court in the United States whereby at some inconvenience to litigents there would be a savings of the salaries of at least two judges and other minor court officials". Congress eventually provided appellate jurisdiction in the 5th Circuit Court of Appeals in New Orleans.

But before appellate jurisdiction to New Orleans was provided, review within the zone was limited to the Canal Zone Supreme Court which essentially exercised jurisdiction similar to the United States Supreme Court; i.e., general appellate review, Habeas Corpus. Mar>damus and certiarari proceeding.

The municipal courts had exclusive original jurisdiction coextensive with the subdivision in which it was located of all: 1. civil actions in which the principle sum claimed did not exceed $100.00, 2. criminal actions wherein punishment which might have been Imposed did not exceed a fine of S25.00 or imprisonment in jail for 30 days or both, and 3. actions involving the forcible entry and detainer of real estate.

From 1904 to 1914 the bulk of cases handled by the courts related to real ascontinued on page 160 October 1976/Arkansas Lawyer/159

Canal, continued from paga 159

tate matters, attributable to the exercise of eminent domain and the depopulation of the zone in preparation for and in furtherance of the construction of the canal. Much, if not all, of the land in the Canal Zone was owned by private citizens who received compensation for

their properties from the United States Government in or out of court.

The circuit court exercised exclusive

original jurisdiction in all cases beyond the jurisdiction of the municipal courts and, of course, not in the exclusive juris路

diction of the Supreme Court.

It is interesting to note that the very first case ever tried in the Canal Zone Court, organized under Act I, involved the theh of a quantity of quicksiiver, (Canal Zone vs. Baldomera Cortez) from a steamship company. The case was dismissed based upon a lack of proof as to whether the goods alleged to have been stolen consisted of quicksilver or shavings.

REORGANIZATION OF C.Z. COURTS AND PRESENT COURT SCHEMES The Panama Canal Act of August 24, 1912 provided for a reorganization of the courts and a redefining of jurisdiction. It also provided that the laws of the Canal Zone would be the sUbject of congressional legislation. This act created and established two district courts and magistrates court for the subdivisions of the Canal Zone with the judges to be appointed for terms certain by the President or his designee. Under this act the District Court was granted original jurisdiction of all felonies, high misdemeallors, equity, admiralty and civil cases in excess of $300.00 subject matter (later raised to $500.(0) with appellate jurisdiction to the Fihh Circuit Court of Appeals in New Orleans. Placing of appellate jurisdiction in the United States was a direct result of the old I.C.C. 1904 request referred to earlier and amounted to a savings of the salaries of 8 to 10 judges, which were then being paid by the commission. The magistrate courts were alloted original and limited jurisdiction in civil matters not to exceed $300 and criminal actions where the punishment may be imposed does not exceed a fine of $100 or imprisonment in jail for 30 days or both, as well as forcible entry and detainer. The criminal jurisdiction of magistrates courts, some 63 years later remains the same with the exception of the inclusion of particular offenses wherein punishment may be imposed up to a $500 fine and/or 90 days in jail.

The act also established the right to a jury trial in the Canal Zone which, because of the times and the nationalities involved in the canal construction days, had limited applicability. Nevertheiess, the I.C.C. did not completely favor

160/Arkansas Lawyer/October 1976

the jury trial as practicable in the Canal Zone. As a result, in 1915 the District Attorney recommended that jury trial be had only in capital cases. The reasoning behind this recommendation is recorded in full in the annual I.C.C. reports of 1915. The District Attorney indicated that while some white americans demanded

jury trials, others, negroes, and other foreigners preferred trial by court without jury. Perhaps this preference was rooted in their familiarity with the courts of their homeland or their faith in the jUdge or their lack of faith in jurors who normally were whites. The District Attorney further noted in his report that in the 1914-15 fiscal year, all jury trials resulted in acquittals; that regardless of the strength of the case, the jurors refused to convict white defendants in cases of crime against

negroes. see Annual Report of Governor (1915). The recommendation was not followed. And until today the jury system in the Canal Zone meets the same constitutional standards and safeguards mandated by provisions in the United States Constitution made applicable to the Canal Zone, and by various Supreme Court decisions.

While the courts within the Canal Zone are not so called constitutional DOUrtS created pursuant to Article III of the Constitution, they are courts created

by Congress and are bound to follow the federal rules of criminal procedures as prescribed and limited by Congress or local rule. The District Court is also administered as other United States district courts in the Continental United States.

In addition to the federal rules of procedure and local rules, the Canal Zone Code provides for rules of procedure in both the district court and the magistrate court with specific reference in many in-

stances to the federal rules of procedure.

In addition to the Canal Zone Code, which in its present form was patterned

aher the California Code, the United States Code is applicable in the Canal Zone when specific reference is made to

include the waterway. Thus the courts in the Canal Zone are bound to follow the Canal Zone Code, and United States Code where specifically applicable to the Canal Zone unless a conflict arises, in which event the Canal Zone Code is rendered inapplicable.

As mentioned earlier, the body of law specifically tailored to meet the Canal Zone needs was patterned from California jurisprudence and, as a conse-

quence, stare decises may be found through research and reliance on California law as well as general federal law.

The uniqueness of the Canal Zone jurisdiction is further pointed as given the fact that appellate jurisdiction lies in the fihh circuit in New Orleans. This mingling of jurisdiction sounds confusing and is occasionally.

In my conversations with many curious obsef\lers of the Canal Zone judiciary, it is believed that the Canal Zone Magistrate System is similar to the United States Magistrate System since both are under a Federal System directly or indirectly. This is true. The United States Magistrate System is administered under the auspices of Federal Judiciary. While the United States Magistrate System resulted from an balition of the office of United States Commissioners in October of 1968, Public Law 10-578, the Canal Zone Magistrate System was a direct creation of Congress in 1912. In the United States the Magistrates perform limited functions as quasi judicial officers while in the Canal Zone, the officers within the Magistrates Court are judges with original jurisdiction and, in addition, exercise limited

jurisdiction as do United States Magistrates. Appointment of the judges in the Magistrates Court of the Canal Zone is per statute by the President or his designee. On the other hand, the Magistrates in the United States are appointed by the District Court JUdge although the United States Magistrates exercise greater dollar jurisdiction, in criminal matters and may be appointed as matters in court trial proceedings. The Canai Zone Magistrates exercise jurisdiction both Civil and Criminal cases and are authorized to act as District Judge in his absence. in the Continental United States, the only courts of a similar nature (located in federally controlled areas, and under federal legislation) and of comparable jurisdiction are the inferior courts of Washington, D.C. The jUdiciai animals created by the Congress specifically for the Canal Zone are of a unique species.

Nowhere else within the Continentai United States does there exist a parallel system of courts. it is indeed a unique system exist.

unknown to many -

to even

It has been my intention throughout this article to present a general overall picture concerning the history of Panama, the Canal and its jurisdiction.

This article by no means is intended to answer every question that the reader might pose but only to expose him or her to the historical and present significance of this unique area, which is presently the subject of intelligent as well as emotional debate and discussion. If you desire additional or specific information

about the Panama Canal, the Canal Zone, inquiries may be made addressed to PANAMA CANAL Information Office, Balboa Heights, Canal Zone or secretary, Panama Canal Company, 425 13th Street NW., Washington, D.C. Requests for information concerning the Republic of Panama should be mailed directly to the

Panama Tourist

Commission,

Panama, Republic of Panama ,J-

""'-

LEGAL ECONOMICS

by Fran Shellenberger

OLD FILES -

TO RETAIN OR DESTROY, THAT IS THE QUESTION

Lawrence Lawyer and Anthony Advocate, partners with A. Young Lyon in a three-man law firm, are discussing the maller of retiring and destroying old files.

Anthony: I hate to throw any of our files away, Lawrence. We might want to review some of those papers sometime, or a client might ask for something we've filed here.

Lyon won't like the idea of destroying his insurance practice files - he'll be concerned about copies of depositions or medical reports.

Lawrence: Anthony, it took all summer for two law students to review our old files and cull those which may be destroyed and we still have a crowded file room.

Anthony: I have old files in my allic, garage and basement, much to my wife's dismay. We've got a monumental paper and storage problem here!

Lawrence: Yes, and it's costing us as much to store these old files as it would to provide office space for two lawyers and a library, to say nothing of the expense of cabinets and shelves. We're saving everything so we won't lose anything.

I'm not satisfied with our record system either. It's difficult if not impossible sometimes to tell whether a file is open or closed the way we number them.

Anthony: It seems to me that our problems with retiring and retaining files boil down to four areasretrieval, space, expense and time. We need an organized procedure aimed at those areas.

Lawrence: Let's make it a regular practice to select files for retaining or destroying at the time the lawyer closes a file. At that time we can make the decision to destroy or retain a file and choose a date when the file can be destroyed, say one year, two years, five years, ten years, or never.

Anthony: Yes, because we could always request a copy from the clerk if we need it.

Lawrence: We'll need to consider statutes of limitations in destroying files. What I mean is, we won't want to destroy any file until any statutes pertaining to that file have run. Also, we ought to retain files long enough to protect ourselves in the event of a malpractice suit against us.

Anthony: I hadn't thought of that!

The date of destruction or the instruction never to destroy the file should appear on our records and on the outside of the file folder.

Summer clerks could pull the files to be destroyed without reviewing files.

Lawrence: I'll suggest to Lyon that we send a form leller to our insurance company clients informing them that a file will be destroyed at a given date unless the company directs otherwise before that time. This should be acceptable in most cases if Lyon agrees.

Anthony: I like that idea It would do the job, it would allow unskilled persons to do the work, and it would let the decisions be made by a lawyer.

Anthony: Suppose we find we've marked a file for destruction in 1977 and the situation changes so that we'll need the file? How can we avoid destroying a file we find we need to retain?

We'll need some formal standards for retaining or destroying files.

For instance, Lyon's insurance practice files can probably be destroyed after two years. However, we won't want to lose a client's Will because we destroyed the file after ten years and we'll need to retain client corporate records indefinitely.

Lawrence: I can think of two ways to handle that. One would be to review the file for correspondence dated after the destruction date. If that is the case, the file could be referred to the responsible lawyer for final approval or for a new destruction date before destroying the file.

Lawrence: We cou Id destroy those files where the maller is of record.

Another method wou Id be to route a list of the files which are ready continued on paga 162

October 1976/Arkansas Lawyer/161

derstand that printed reproductions can be difficult to read.

integrated into the retired files.

Also, it's difficult to tell whether a file is open or closed.

Anthony: Microfilm might be the best solution for larger firms, and perhaps for us in the long run. But for now I'd rather try to make our situation more manageable by a formal, selective system of destroying files no longer needed.

Anthony: We can assign another number, a closed number, to the file when it is retired. All we need is a simple numerical system, one that will allow closed files to be readily accessible and one that will allow for growth. The closed number's only purpose is to show the iocation of the file. Both numbers would become a part of our office records and we shou Id have no difficulty determining whether a file is open or retired because the retired file will have two sets of numbers.

Lawrence: Would you consider storing our retired files at a warehouse instead of in our office?

Warehouse space will be cheaper than our office space and we can put the space we gain here to better use, maybe an office for a new associate.

Economic" continued from page 161 for destruction to the lawyers and

letting them review it. This would give us a chance to change destruction dates or retain a file if that has become desirable or necessary.

Anthony: I like that idea. It would be necessary for clerks to review files but the review would be much simpler and quicker and the clerk will not be in the position of making a decision. The decisions will be made by lawyers and we get a chance to change our minds.

Lawrence: If you're really concerned about throwing away something important, we could put everything on microfilm.

Anthony: You mean everything?

Anthony: I suppose that will be all right. All that's really necessary is that we be able to get to them fairly quickly.

Lawrence: I think we've got it, I think we've reaily got it!

Anthony: You sound like Rex Harrison. How's this? (To the tune of "Ole Man River") - "Close Those Files, Retire Those Records, Get a Better Grip on Your Storage Room I"

Lawrence: Speaking of getting to them quickly, I'm not at all satisfied with our numbering system for retired files. Our method of using the same number as the open file number means that we have to rearrange shelves and cabinets when older files are closed and

Lawrence: You ought to try out for !I_-.

The Gridiron!

MEMORIAL GIFTS HIt is more blessed to give than to receive"-However, a member profits both ways with a memorial gift to the Arkansas Bar Founda路 tion. One's gift is a beautiful way of honoring a former colleague.

The family must be most appreciative of such remembrance. The gift is noted in the Foundation's Memorial Book and, of course, is tax deductible. Memorial gifts may be sent to the Arkansas Bar Cen路 ter. The memorial card (below) of the Arkansas Bar Foundation is formal and is promptly delivered "1)011 receipt of the memorial gift.

WE ACKNOWLEOQE WITH GRATEFUL AP9RECIATION THE RECEIPT OF A GENEROUS MEMORIAL GIFT

Lawrence: Not everything needs to be retained, but it will cost us more to decide what to put on film than to film everything!

Anthony: Isn't that awfully expensive?

Lawrence: I think the cost .is about one-half cent per page. The cost wou Id be offset somewhat on what we save in space, equipment and time and we wouldn't have to worry about destroying anything.

However, we'd have to provide a microfilm reader, provide space for it and learn to use it. Also, I un162/Arkansas Lawyer/October 1976

FROM

OF

IN MEMORY OF THE LATE

LITTLE ROCK, ARKANSAS

THE ARKANSAS BAR FOUNDATION 400 WEST MARKHAM LITTLE ROCK, ARKANSAS 72201

LAW SCHOOL NEWS Assistant Dean J. Steven Clark Associate Dean David R. Hendrick

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE Editor's Note: We wish to acknowledge our indebtedness to Assistant Dean J. Steven Clark for his contributions to this column. Dean Clark has been employed as Arkanses Governor Devid Pryor's Executive Secretary, effective August 16, 1976. Unfortunately, the Arkensas Bar Association's House of Delegetes will lose Clark as a Delegate from DIstrict No. 27, since he will move from Fayetteville to the Uttle Rock area.

However, the Assocletion hes gained e "delegate" In the Governor's office.

LAW REVIEW Law Student Bob Ross of Turrell (Crittenden County) has been named editorin-chief of the ArI<ansas Law Review.

Other officers of the Review are Christy Jones of Holly Springs, Miss., managing editor; J. Maurice Rogers of Fayetteville, comments editor; Glenn Parr of Fort Smith, citations editor; and Charles Nestrud of Little Rock, business manager.

DEDICATION Attending the recent dedication of the Western District of ArI<ansas, U.S. SuWaterman Hall addition at the Law preme Court Associate Justice Harry A. School, University of ArI<ansas, FayetteBlackmun, and Chief Judge Paul X. ville, were (L to R) Senior Judge John E. Williams of the U.S. District Court for the Miller of the U.S. District Cou rt for the Western District of ArI<ansas.

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT LITTLE ROCK NEW OFFICIALS APPOINTED The appointment of Miss Susan WeI>ber as assistant dean of the University of ArI<ansas at Little Rock School of Law and Mrs. Mary Ann Willis as director of admissions and student records has been announced by Robert K. Walsh, dean of the School.

Miss Webber, 27, a native of Texarkana, was graduated with high honors last year from the University of ArI<ansas Law School at Fayetteville, where she served as editor-in-chief of the ArI<ansas Law Review, scholarly pUblication of the Fayettevilie and Little Rock Law Schools. She also has a masters degree in public administration from the UA at Fayetteville and a bachelors degree from Randolph-Macon Woman's College at Lynchburg, Va For the past year, Miss Webber was a

law cieri< to Federal Judge J. Smith Henley of the United States Eighth Circuit Court of Appeals. Her father, the late T. E. Webber III of Texarkana, was a

M... Willi.

lawyer.

Miss Webber succeeds Gienn V. Pasvogel, Jr., who is returning to fulltime teaching. She also will teach on a half-time basis. She began her new job July 19.

Mrs. Willis, 36, a native of Monticello, formerly was secretary to Dr. Dudley

MI.. W _

Beard, UALR registrar. She has worl<ed at UALR three years and is taking courses at night toward a bachelors degree in business administration. She formerly was employed as an elementary school secretary at Prairie Grove (Washington County) and in Lovington, N.M. Mrs. Willis began her new job JUly 1. J-.....

October 1976/Arkansas Lawyer/l63

New Edition Of Federal Labor Laws, Brought Completely Up-To-Date, Is Portable Labor Law Library The new Second Edition of Federal Labor Laws is now available from West PUblishing Company, St. Paul, Minnesota 55102.

It contains the complete labor law in Title 29, U.S. Code, as amended through the 1st Session of the 94th Congress.

Federal Labor Laws can effectively serve as a portable labor law library.

The compact, soft-bound volume includes all the landmark legislation such as the National Labor Relations Act, the LaborManagement Relations Act, the Wage-Hour Act, the Comprehensive Employment and Training Act, Occupational Safety and Health Act, Pension Reform Act, and lesser known legislation as well.

A Table of Popular Name Acts provides popular designations of principal labor legislation so that the user can have quick access to a particular law without the official name or pUblic law number.

Numerous editorial and research aids include references to the Code of Federal Regulations to West's Federal Forms, and to Key Number Digests and Corpus Juris Secundum. Annotations to selected Supreme Court decisions provide fu rther research assistance.

Federal Labor Laws, 2d Edition, contains a topical index to lead you quickly to your subject.

Its convenient organization and compact design make it suitable for desktop reference or wherever needed. ./.

164/Arkansas Lawyer/October 1976

The missing piece can lose your case Whe~ you tUI'!! to Corpu~ Juris Secu"dum, you have access to the complete body of Al"'ler c~n cose I"w.

It is bllsed O!'l All reported CGses, rot just II se'eded few. That IS why a is ir. the libraries of the n"tion's most succ'lssfu l~wyers.

Triple indexes le-'ld yo.. quid'y to t~e p:ece that can .....in for you.

CJS (jives you rulirqs from your own j;.rrisdidionâ&#x20AC;˘â&#x20AC;˘.'IS

well as "II others. The e.ceptions, too. Its completeness is

its unique drength-and yours. too.

Write for the

WEST

PUIUSIIIIIG COIIPA.'

~

story.

Elmer P. Roberts P.O. Box 11161 Memphis, TN 38117

Phone: 901 744-8420

RESEARCH - DOES IT EVER GIVE YOU A HEADACHE? SHORT OF TIME? Ever Need Help? Ever ...

1. Get pushed with several problems at one time and all due on the same date?

2. Wish you had just a little more authority to back up that brief?

3. Remember a case in an old Tort Book, look it up, only to find it a small excerpt from a New Jersey case and you do not have West's "Atlantic" set of Reporters?

4. Want the latest case or the newest treatment in law review - only the law review article is in the University of Arizona Law Review - which just "ain't" in the office this year or next year for that matter!

5. Research the problem yourself and put in $1000 worth of time when $50 was the outside limit

WE SUGGEST: Utilize the research pool made available to you by the Student Bar Association! The Law SChool has students trained in doing research, as well as the most extensive and up-to-date law library in the entire state at their fingertips.

Ask other attorneys who have utilized our service about the competency and efficiency of our work. The research pool is one of the most practical economic tools a busy attorney has at his disposal.

The Student Bar Association's Research Pool has proven to be an invaluable aid to both attorneys and students. We invite you to take advantage of this unique professional service.

HOW: 1. MAIL a succinct statement of the problem needing research to: DANIAL T. RAMSDELL RESEARCH DIRECTOR STUDENT BAR ASSOCIATION UNIVERSITY OF ARKANSAS SCHOOL OF LAW FAYETTEVILLE, ARKANSAS 72701 575-5600 or 575-5603 2. SPECIFY the MAXIMUM amount of money you wish to expend on the research.

3. SPECIFY the TIME LIMIT within which the problem must be completed. Please be certain to allow a MINIMUM of TWO WEEKS, since the students must coordinate their research efforts with their class work.

4. FEE: All research will be conducted for a fee of $6.00 per hour. Miscellaneous charges consisting of necessary typing, photocopying, and postage will be added to this figure to compute your total bill.

IMPORTANT:

Research requests will NOT be accepted during the periods of ...

December 1, 1976 thru December 22, 1976 or ...

April 18, 19n thru May 11, 1977 . . . due to the preparation for and taking of final examinations.

(ALL RESEARCH REQUESTS ARE HANDLED IN A CONFIDENTIAL MANNER.) October 1976/Arkansas Lawyerl171

OYEZ · OYEZ

II

••

by Barbara Tarkington Membership Secretary

Philip M. Wilson, Little Rock, has recently moved to the First National Bldg" Ste. 1700. Roger W. Giles, former JAG officer in South Carolina, has joined the law firm of Thomas & Irwin of Heber Springs. The Rose, Nash, Williamson, Carroll, Clay & Giroir law firm have announced three new associates: Allen W. Bird II, William E. Bishop & Charles C. Owen. The Legal Aid Bureau of Pulaski County has moved to the Hall Bldg. Annex Suite 36. The Bureau's phone number is the same. Ronald C. Mills, recent SMU graduate receiving his LL.M. in Taxation, has joined a Jacksonville law firm and the firm's name changed to Wilson, Dougherty & Mills, PA. Raymond Harrill, Little Rock, has joined the law firm of Bruno, Sarver & Scott, Ltd. in the Tower Bldg. Bill D. Ettar, former deputy attorney general, has joined Robert Joseph Brown for the practice of law.

John Terry Lee, a private practitioner, has joined a Siloam Springs law firm and the firm's name changed to Elrod, Elrod, Elrod & Lee. Suite 604 at the University Tower Building is now being occupied by attorney Herman W. Eubanks for the private practice of law. Jill Rlha Jacoway, a recent graduate, has joined.in her husband's law firm, Jacoway & Herdlinger of Springdale. Bill Murphy has opened a law office at 200 N. Oak. Sheridan. Robert F. Alaobrook resigned as president of the Benton State Bank to join a Benton law firm and its firm name will be known as Hall, Tucker, Lovell, Bramhall & Alsobrook. David B. Kaufman has been appointed law clerk to Circu it Judges Warren E. Wood and Tom F. Digby. The 1976 Arkansas Chairman of the United Negro College Fund is Little Rock attorney John T. Haskins, The College of Medicine of the University of Arkansas Medical Sciences Campus has awarded to William J. Smilh, little Rock, one of three Distinguished service Awards, James Staa", Jonesboro, has been elected 1976-77 President of the Board of Directors of the East Arkansas Planning and Development District.

John W. Hall, Jr., Little Rock, has been appointed to edit a trial manual for the state's prosecutors and their deputies.

172/Arkansas Lawyer/October 1976

Kaneasler Hodges, Jr., Newport, has been appointed to a seven year term of the state Game and Fish Commission.

James H. Gunter, Jr., Hope, is the new Chairman of the Board of Governors of Multiple District seven of the Lions Clubs of Arkansas. Robart Tolson, Jr. succeeds Michael Dennis as City Attorney for Pine Bluff. Pamlea Walker, Little Rock, has written two articles that have recently been published in a Little Rock newspaper concerning women's rights.

Ark Monroe III, former state insurance commissioner, has joined the staff of senator Dale Bumpers in Washington.

W. H. L. Woodyard III, former deputy commissioner, will succeed Mr. Monroe.

Attorney General Jim Guy Tucker has been named Chairman of the Supervisory Board of the state Criminal Justice & Highway Safety Information Center. New members of this Board aiso include three members of the Ark. Bar Association: C. R. Hule, Jack Lessenberry and Richerd R. Healh. At Mountain Home.

David Osmol] spoke at a June meeting of the Retired Teachers Association. Bill Mills was a speaker at the White County Kiwanis Club during a June Meeting.

Jim Bob Sleel, Nashville, was a guest speaker at the June meeting of the Bingen 4H Club. Fred M. Pickens, Jr., Newport. was an instructor for the Arkansas Banking School concerning a basic intermediate course held in Little Rock during June. Ted N. Drake, Pine Bluff, attended in May the Tax Lawyers Internal Revenue service Liaison Committee session at Dallas for the Southwest Region of the IRS. Bill Thompson has been chosen as the new President of the Sebastian County Bar Association with Dorsey M. Ryan the new PresidentElect and Robert E. Hornberger secretary-Treasurer. Saline County has new officers: Bob Garratt, President; George D. Ellis, Vice-President; and Richard MalUson, Secretary-Treasurer. Gery Cottrell has been elected President of the Crawford County Bar, Robert Marquette, Vice-President; and MorrU Harriman Secretary-Treasurer. John Elrod is the current Benton County Bar Association President with Douglas Wilson

President-Elect and Jerry Dossey as secretary-Treasurer. Craighead County Bar has selected the following new officers: Larry Boling, President; Olan Partc:er, Jr., Vice-President; and Dennis Zolper, Secretary-Treasurer. New officers of the Arkansas Association of Women Lawyers will take office in September: Clyde Cailiotte, PreSident; JanIce Richardson, Vice-President; Betty Cross, Secretary; Robin Lafferty, Recording Secretary; and Jeannine Dunham, Corresponding Secretary. fI-_

AMERICAN JUDICATURE SOCIETY ELECTS J. C. DEACON TO BOARD OF DIRECTORS J. C. Deacon, lawyer from Jonesboro, has been elected to the 1976 Board of Directors of the American Judicature Society. He is a former President of the Arkansas Bar Association and serves as Chairman of the Arkansas Commission on Uniform State Laws.

The American Judicature Society is a national and international organization of concerned lawyers, judges and civic leaders who are working to improve the quality of justice, The Society has been particularly active in supporting a nonpartisan merit selection of judges. modern, simplified court procedures and unified state court systems. The organization conducts iegal research. provides a consultation/information service. publishes a journal and newsletter and organizes citizen education programs throughoul the country. In this bicentennial year, the Society sponsored the first national citizens' assembly on juslice. fI-.....

EXECUTIVE COUNCIL NOTES

by Cyril Hollingsworth Secretary-Treasurer

The Executive Council held an organizational breakfast meeting on June 5, 1976 in Hot Springs during the Annual Meeting of the Association. This was my first meeting as secretary-Treasu rer, and I appr&ciate the House of Delegates allowing me to serve in th is position. The following are some highlights of that meeting.

Action on Grants Approved By House of Delegates. The House of Delegates approved a contribution of up to $14,475 for the legal clinic program of the University of Arkansas Law School, and a contribution of $20,000 toward restoration of court rooms and other renovation for the University of Arkansas at little Rock Law School. The council concurred that communication should be made to each recipient outlining the specific requirements and understandings in accordance with the House of Delegates resolutions.

Etforts to obtain other funds are to be continued by the legal clinic program, with the understanding that this contribution of up to $14,475 is on an emergency basis. To help this effort, a copy of the legal clinic program resolution will be forwarded to the Legal Services Corporation, the Arkansas Congressional delegation and other appropriate parties.

The contribution of $20,000 for restoration of court rooms and other renovation of the old post office building is dependent upon additional matching money, a total plan of renovation of the post office building, and confirmation that the intended usage of the building will be permanent.

Fall Legal Instnute. This institute had to be moved to Little Rock due to the unavailability of sufficient accommodations in Fayetteville. The

House of Delegates will meet during the institute. seminar for Local Bar Officers.

President Friday discussed a project to involve local bar officers in exchanges of ideas and consideration of methods for effective planning and officer training. The council expressed its support of such a project, which John Gill has agreed to help formulate. This would be an opportunity for officers of local bars throughout the state.

Program for this Bar Year. President Friday reported that all committees are functioning and that our latest legislative program is in good shape. The committee on legislation will follow the work of the Legislative Council and will be prepared if issues of concern arise. An advisory news letter will be sent to association members on bills of interest to lawyers.

A new committee on youth evaluation for citizenship is expected to involve lawyers throughout the state in programs to work with teachers for the education of youth.

This new committee effort should have the support of the entire association as well as the young lawyer's section.

The committee on specialization has been enlarged in scope and will now be known as the committee on specialization and advertising. It will continue to monitor the experiments undertaken in these areas by other bars.

The judicial poll, adopted by the House of Delegates, will be undertaken.

As a special project, President Friday wants to explore the idea of some permanent entity in connection with the law schools in the area of continuing legal education.

Thirty-nine states already have such an entity, and it is hoped that by the

end of this bar year we can have a continuing legal education structure.

Ethics Issue. The matter of local solicitations by representatives for legal assistance to the elderly was mentioned. A report from the ethics committee should be forthcoming.

Bar Center Maintenance. A problem has arisen in the air conditioning system of the Arkansas Law Center which has resulted in considerable expense. The Association offices are housed in this building. The Arkansas Bar Foundation is trying to resolve the matter.

Criminal Code Update. Colonel Ransick emphasized the responsibility of the Association for updating and making any changes with respect to the new criminal code, since the commission regarding the same is no longer in existence.

Grants by House of Delegates.

The council briefly discussed some concern expressed over the two grants by the House of Delegates, expressing some caution regarding future expenditures for particular projects, especially in view of the need for sound reserves.

Lawyer Referral Project. Herman Hamilton mentioned the statewide lawyer referral project as a good vehicle for upgrading the image of the lawyer with the general public.

Colonel Ransick advised that the program has been successful in its initial stages and that a written r&port will be forthcoming. /I.....

October 1976/Arkansas Lawyer/173

In Jlemortam al your apeech be alwaya wllh grace, _ned wllh ..II, Ihal 18 may know haw ye ought 10 _ e r every mlJll. COLOSSIANS .f:e

JOHN P. WOODS John P. Woods, lawyer, civic leader and former member of the Legislature, died at Fort Smith on June 9, 1976 at the age of 89.

He served in the state House of Representatives in 1915 and 1916 and represented Arkansas at the Electoral College in 1928.

The son of John Harvey Woods and the grandson of Judge Richard H. Powell, both prominent lawyers in North Arkansas, Mr. Woods graduated from the University of Arkansas Law School and was admitted to the bar in 1912. He continued to practice law until his retirement in 1970.

He was a partner in the firm of Daily, West, Core and Coffman, Ft. Smith.

Mr. Woods was chairman of the commission that organized the Arkansas State Police Force, then known as the State Rangers, and was instrumental in laying the groundwork for the current State Police system.

He served 18 years on the Fort Smith SChool Board, inclUding a term as president, last year, a new Fort Smith elementary school was named the John Powell Woods school.

Mr. Woods received several awards for valor in World War I. He served 20 years on the Arkansas Bar Rules Committee and in 1967 the state Bar Association awarded him its Outstanding Lawyer Citizen Award. He was named a first fellow of the Bar in 1973 at the opening of the Arkansas Bar Center at Little Rock.

He was a charter member of the Hardscrabble Country Club and past president of the Westark Area Council of the Boy Scouts of America.

174/Arkanaaa LawyerlOctober 1976

Survivors are four sons, Powell Woods of Siloam Springs, Pendleton Woods of Oklahoma City, Gaines Woods of New Orleans and Daniel Hon Woods of Little Rock; two brothers, William Woods of EI Paso, Tex., and Dale Woods, of Brownwood, Tex., and 11 grandchildren.

G. BYRON DOBBS G. Byron Dobbs, lawyer, historian died at Fort Smith on June 28, 1976 at the age of 68.

The senior partner in the law firm of Dobbs, Pryor and Barry, Mr. Dobbs had practiced law at Ft. Smith since 1932.

It was through his work in title research that Mr. Dobbs became involved in a Ft. Smith effort to preserve Belle Point, the original site of a military post established in 1834.

When Mr. Dobbs started work on the project in the early 1960s, the area was a slum known as Coke Hill. It was placed on the National Historic Register and annually attracts thousands of tourists.

Mr. Dobbs prepared briefs to clear title to the lands located on the Arkansas River banks.

Oklahoma authorities had accused the state of Arkansas of illegally taking the land from the Cherokee Indians in the late 18005.

Mr.â&#x20AC;˘ Dobbs also was interested in the history of federal Judge Isaac Parker, the "hanging jUdge," and was considered an authority on him.

Mr. Dobbs wrote a number of articles in the "Review" and "Arkansas Lawyer" about Parker.

Mr. Dobbs was a member of the Arkansas Bar Association, which presented him the Lawyer's Citizen Award in 1961. He also was a member of the American Bar Association and had served as president of the

sebastian County Bar Association.

He was chairman of the Judiciary Committee of the 1969-70 Arkansas Constitutional convention.

Survivors are his wife, Mrs. Gladys Hall Dobbs; a son, Dan Dobbs of Chapel Hill, N.C.; two daughters, Mrs. Mary McCullough of Archar, Fla., and Mrs. Ann Tribble of Boston, Mass., and his mother, Mrs. Iva Dobbs of Fort Worth.

VIRGIL EVANS Virgil Evans, lawyer, soldier, Judge died at Hot Springs July 5, 1976 at the age of 84. He was senior member of the firm of Evans, Farrar, Patterson and Farrar of Hot Springs.

A native of Garland County, Mr. Evans received an interim appointment as Third District chancellor from the late Governor Winthrop Rockefeller and took office in the same room where his late father, Circuit JUdge W. H. Evans, presided.

During World War I, he was assistant judge advocate general with the American Expeditionary Forces in France, and during World War II he was rent attorney and director of the Garland County Price Administration. Since 1952, he had been chairman of the selective Service Draft Appeals Board for the Western District of Arkansas.

He was an elder of First Presbyterian Church, a member of the 40 et 8, the American Legion and a Mason.

He was a former president of the Garland County Bar Association and the Garland County Razorback Club.

Survivors are his wife, Mrs. Nell Evans; a daughter, Mrs. Dana Farrar of Hot Springs, and two grandchild-

ren.I- ....

ADDENDA

by C. E. Ransick Editor

ARKANSAS BAR ASSOCIATION

FALL LEGAL INSTITUTE "WINNING TRIAL TACTICS"

~ SEPTEMBER 16- 18, 1976 CAMELOT INN LITTLE ROCK, ARKANSAS

PLAN TO ATTEND Holmes was called upon to deliver the eulogy upon the passing of George Shattuck, the great trial lawyer of Boston. In memorable words he rendered this tribute to the trial lawyer: "The final test ... is battle in some form - actual war - the crush of Artic ice - the fight for mastery in the market or the court. Many of those who are remembered have spared themselves this supreme trial, and have fostered a faculty at the expense of their total life. It Is one thing to utter a happy phrase from a protected cloister; another to think under fire - to think for action upon which great Interests depend," The Fall Legal Institute is designed for those who aspire to this high calling. To help you "think for action upon which great interests depend," we will bring you live and on film some of this country's greatest trial lawyers. You will see some of the newest 1976 tapes from the Center for Trial and Appellate Advocacy at The Hastings College of Law. These tapes have been described by Justice Tom Clark as "the most effective presentations of any In which I have participated these are the cream of the crop - I recommend them without reservation," All aspects of a trial will be pr& sented in depth, from the client interview to the summation, climaxed by an entire video trial on Saturday. The 100-page handout on this trial should be reviewed in advance of session. One of the tapes you will see won the 1975 Ohio State Award for excellence in educational, informational and public affairs broadcasting.

The live speakers will include such men as Jim Jeans, author of a splendid book on Trial Advocacy publi搂hed this year by West; John Frank, former president of the International Academy of Trial Lawyers, and Jim Hullver路 son, who represents this Circuit on the Board of the Association of Trial Lawyers of America. Also on the program are Sam Masten, a famed South Dakota trial lawyer and past president of his state bar, and Windle Turley, a brilliant young Texas advocate, recognized as a leading authority on products liability.

Chief Justice Burger has recently commented that there Is no more Important undertaking than the trainIng of lawyers to be skillful advocates. Your Bar Association has accepted this challenge, but without your participation the effect will be meaningless.

Henry Woods Program Chairman 1976 Fall Legal Institute

October 1976/Arkansas Lawyer/175

"SCALES OF JUSTICE" AWARD Chairman Donis B. Hamilton of the Association's Public Information Committee and the Foundation's Public Education Committee for 1975-76 is shown presenting the "Scales of Justice" Award to Bob Hicks, Public Affairs Director of KTHV-TV, Channel 11, during the Association's 78th Annual Meeting.

Three years ago this unique award was created to be presented at the discretion of the Committees for special recognition of outstanding efforts by Arkansas newspapers, radio and TV stations. The award is designed to publicly recognize media programs that heip create a better understanding and appreciation of the American legal system.

This year's award was presented to Channei 11 for their assistance throughout the year in scheduling regular guest appearances of Bar

nco I no NIVI

representatives on their highlypopular noon show, "Eye on Arkansas". These regular features have provided legal information on a wide range of topics of interest to Arkansans.

A signal achievement by KTHVTV this year was the production of a 3O-minute program entitled "The Jury". This presentation was shown in prime time during the week lead-

ing up to Law Day '76. Videotaped in the Pulaski County Courthouse, the documentary was educational and dramatically entertaining in that it presented the jury selection process in mock trial fashion.

The man singularly responsible for this public service telecasting was Bob Hicks, public affairs director of KTHV-TV.

LAWYERS NAMED

WORKMEN'S COMPENSATION PROGRAM Harvey Yates, West Helena, reports that the recent eastern Arkansas Regional Seminar on Workmen's Compensation was a success. The Seminar was held at Phillips County Community College.

All three Arkansas Commissioners participated in lectures and panel discussions. The Commissioners, with Mr. Yates, are identified in the picture as follows: Harvey Yates; John Cowen; Chairman W. H. "Dub" Arnold; and Jimmie D. Clark (From left to right). Seminars have been held in Fayetteville, Little Rock, Helena, EI Dorado. Chairman of the Workmen's Compansation Committee of the Arkansas Bar Association is Norwood Phillips from EI Dorado.

176/Arkansas Lawyer/October 1976

Robert Shults

Louis L. Ramsay, Jr.

The University of Arkansas Board of Trustees elected on July 8, 1976 Robert Shults of Little Rock as its Chairman, and Louis L. Ramsay, Jr. of Pine Bluff as Vice-Chairman.

Shults succeeds Fred M. Pickens of

Newport, who has served on the Board for more than 21 years, the last five as Chairman. All are lawyers and members of the Arkansas Bar Association. ,c,

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