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OCTOBER 1978 VOL. 12, NO.4 LAST ISSUE IN VOL. 12

THE OFFICIAL PUBLICAliON OF THE ARKANSAS BAR ASSOCIAliON

(§Ie

Arkansas Lawyer SPECIAL FEATURES

OFFICERS

Wayne Boyce, President E. Harley Cox, Jr., President-Elect James A. Buttry, Secretary-Treasurer

EXECUTIVE COUNCIL

Don M. Schnipper Robert L. Jones, III David R. Malone leRoy Froman Tom B. Sm~h Robert G. Serio Herman L. Hammon John F. Stroud, Jr. Dennis L. Shackleford Charles Carpenter W. Christopher Barrier Webster L. Hubbell

EX-DFFICIO

Wayne Boyce E. Harley Cox, Jr. James A. Buttry Herschel H. Friday Roy T. (Rick) Beard Phillip Carroll

EDITOR

C. E. Ransick

George Howard, Jr Report on Proposed Amendment No. 58 The Medical Malpractice "Sting" Workers' Compensation Practice Organization Directories 1978-79 Fall Legal Institute A Court of Appeals of Arkansas: To Be or Not to Be? Lawyer Advertising W.

Robert T. Dawson E. Alvin Schay Cyril Hollingsworth

Don E. Tomlinson 196 Russell Meeks, 111186

REGULAR FEATURES Presidenfs Report Wayne Boyce 154 Juris Dictum C. R. Huiel72 Legal Economics _ Fran Shellenberger 201 Law School News ..........•......................... 194 Oyez-Oyez B. Tarkington189 Executive Council Notes James A. Bultry192 Service Directory ......•......•.•.•................. I.B.C. Lawyer's Mart 194 Addenda C. E. Ransick203 Ethics 186 Contex1 W. Christopher Barrier 184 AICLE News ............•.......Claiboume W. Patty, Jr.l90 The Arkansas Bar Foundation Marvin L. Kieffer155

Published quarterly by the Arkansas Bar ASSOCiation, 400 West Markham. little Rock. Arkansas 72201 Second class postage paid atlntle Rock. Arkansas Subscription price to non-members of the Arkansas Bar ASSOCIation $600 per year and to members $3.00 per year included in annual dues Any opinIon expressed herem

EDITORIAL COMMITTEE

J. W. Dickey, Jr. 158 160 Charles A. Brown 164 Donald C. Frazier 167 175 202

IS

that of the author. and not necessarily thaI ollhe Arkansas Bar Asso-

Ciation, The Arkansas Lawyer. or the Editorial Committee Contributions to The Arkansas Lawyer are welcome and should be senl in two COpies 10 the Arkansas

Bar Center. 400 West Markham. little Rock, Arkansas 72201, All inquiries regardIng advertiSing should be sent 10 The Arkansas Lawyer, above address.

October 1978/Arkansas Lawyer/153

PRESIDENT'S REPORT

by Wayne Boyce

LAW STUDENTS, UNLTD. The recent dedication of the Old Federal Court Building in Little Rock as the new UALR Law School points up the rather unique harmony that exists in Arkansas among Bar, Bench and Law School. I doubt there is another state that has such a high percentage of law students who are members of the state bar association. Last year we had nearly 300 law student members. This year the Membership Chairman confidently expects to sign up 400 students.

These figures no doubt result in part from the interest the Arkansas Bar Association has demonstrated in the law students and law schools.

The Bar has provided money for the Student Bar Associations in both schools for various projects including the Symposium and advertising the Legal Research Pools. All Continuing Legal Education programs are made available to students at no cost and admission to the annual meeting at a very nominal charge. Through the Arkansas Bar Foundation over $3,000 will be provided in scholarships to law students this year and Law Review awards for good legal writing will exceed $800.00. Every student member receives a subscription to The Arkansas Lawyer. The Arkansas Law Review, owned by a subsidiary of the Bar Association, is generously supported by Bar finances.

Both law schools have full voting delegates in the House of Delegates. The Bar sponsored the Model Student Law Practice Act to enable students to gain practical knowledge along with theory. In somewhat the same vein the Association has from time to time produced seminars at the schools in areas not fully covered by regular courses. The Law Graduates Brochure was initiated by the Bar and published until recently when publication was taken over by the schools. This is only part of the job placement effort.

The Bar runs an active program of lawyer utilization to help match up areas needing lawyers with graduates looking for a place to practice. It is the Bar Association that conducts the impressive Admissions Ceremony for new lawyers and later produces a two-day seminar called "Bridging the Gap" or "How to Find the Courthouse" or a title of similar import.

NEW LAW SCHOOL Even more unusual than this rapport between Bar and Student is the Courtroom in the new Law School. By glass walling the old gallery, it is possible for a class to watch a trial in progress with comments from an instructor without disturbing the court. The Eighth Circuit Court of Appeals inaugurated this courtroom cum classroom by hearing oral arguments as a part of the dedication festivities Dean Robert Walsh brought off in July. There is no doubt that 154/Arkansas Lawyer/October 1978

Dean Walsh and others are giving legal education in Little Rock a new and brighter image.

The closeness of the courts, the UALR Law School and the Bar Center calls to mind the English Inns of Court arrangement that has served so well so long. In London, law schools, lawyers' offices and courts are all in close proximity where each may nourish the other.

I have come to a new appreciation of the Inns of Court through a small book by Tyndale Daniell titled tersely, "The Lawyers". Mr. Daniell is an English barrister who is temporarily in this country lending assistance to the restoration ofTemple Bar, that ornate seventeenth century gateway to Legal London. Almost a century ago Temple Bar became a traffic bottleneck in the congested city streets and was dismantled and removed north of London where it was reconstructed on a country estate near Waltham Cross.

Temple Bar is an international symbol of the common law.

The restoration and return to London of this Christopher Wren masterpiece should be completed in early 1979. The Arkansas Bar Association has joined with English speaking lawyers around the world in approving the project.

Those wishing to have a part in and contribute to the restoration may contact me or Herschel Friday.

COMMITTEES We have all laughed about committees ("A camel is a horse designed by a committee"-"A committee is a group who separately could not decide what to do but jointly decided nothing could be done") but I have come to a new respect for committees while watching those in the Arkansas Bar Association. The work of the Bar moves forward largely by its committees. Some committees are "Watch dogs", as Charlie Eichenbaum is fond of reminding us about the Federal Legislation Committee he has chaired so long. Some committees are working at the vital processes of the justice system and bar association structure.

On September 14th in Little Rock immediately before the Fall Legal Institute, we are having a Committee Round-upan opportunity for the committees to meet, assess progress made, report what has been accomplished and make plans to achieve what remains to be done this year.

Elsewhere in this issue is a list of the Committees of your Association. If you are interested in the work of one of these, by all means plan to attend its meeting at the Camelot Inn on September 14th. All committee meetings are open to all members of the Association. If you have something to contribute, the committee will be glad to hear you; if you don't, just sit and listen - -you too may gain a new respect for committees. ~

ARKANSAS BAR fOUNDATION

by Marvin L. Kieffer Chairman

EMPHASIS ON SCHOLARSHIPS AND MEMORIALS The Foundation is beginning to have Trust Funds enough to generate income with which it can begin to accomplish some of the purposes, other than the owning and managing of property, for which it was set up. But, just at the time that the Foundation is reaching toward this goal, it is beginning to run out of steam, which has been the pledges made in earlier years to support the Foundation.

These pledges have been the main source of money to build up the Foundation Trust Funds and to generate the income needed to accomplish the Foundation's purposes.

These pledges are about paid and no substantial new pledges are being made to the Foundation to keep building the Trust Funds.

This year, the Foundation will emphasize a two-prong project of fund raising. One will be to increase the $5,000 perpetual scholarship funds and the other will be to increase the

$1,000.00 memorials for deceased lawyers in the Memorial Border of the Law Center.

Some progress has been made in establishing both, scholarship funds and memorials, but the Scholarships and Memorials Committee of the Foundaton has not made much progress, recently, in obtaining new scholarship funds and memorials for deceased members. An attempt is being made to revitalize the Scholarships and Memorials Committee by restructuring the committee into four regional teams, w~h a Director of the Foundation, responsible as a team captain to strengthen the committee.

Goals have been set for five $1,000.00 Memorials and two $5,000.00 Scholarships for each regional team of the Scholarships and Memorials Committee, which should be attainable as a minimum goal.

Plans are being made to give all members of the Bar Association an

Wayne Boyce, CBS Correspondent Fred Graham and President Dan West of Arkansas College, at tha reception following the lirst Hugh Patterson Lecture at Arkansas College, Batasvllla.

opportunity to participate in establishing two $5,000.00 perpetual scholarship funds, one for each law school, to memorialize U. M. Rose, Founder of the organized Bar of Arkansas.

The question is often asked, "What is the money contributed to the Foundation, spent for?" The money now contributed to the Foundation is not spent, it goes into a Trust Fund, which is to provide a perpetual source of income for such things as: annual scholarships to the law schools from scholarship funds; Law Review awards; Legal Writing awards; Public Education, about the law and Bar through newspaper articles, and radio and television spots; research projects, and special projects such as the publication of "Minimum Standards for Court Facilities". This year, emphasis is being placed on scholarships and pUblic education about Bar and the law; and start on recording and preserving an oral history of the Arkansas Bar Association on tape, by interviews with some of the outstanding senior members of the Bar Association.

I! is fitting to honor a member of the Bar Association with a Foundation scholarship; or to memorialize in the Memorial Border in the Law Center our deceased members.

The more you contribute to the Foundation, the more it can do for a better Bar Association. The Foundation solicits your contributions. ~ October 1978/Arl<ansas Lawyer/155

Court of Appeals, continued from page 200

In any event, the finally amended resolution passed both chambers of the General Assembly and will be on the general election ballot in 1978 as a proposed constitutional amendment.

The Gazette's article also noted that in speaking to the Committees, Judge Harris emphasized that the General Assembly would have control over every facet of the intermediate court except setting its jurisdiction, which he insisted should be with the Supreme Court.

He said he envisioned it handling divorce case appeals, Workmen's Compensation cases and those about small amounts of money that didn't contain constitutional issues.

v.

So, what is left to do? The proposed constitutional amendment setting up an intermediate appellate court will be on the 1978 General Election ballot.

But what guarantee is there of its passage?

Since 1874, some 130 proposed constitutional amendments have been presented to the people, but fewer than half have passed.

In Arkansas, Constitutional amendments must compete for the voters' attention along with candidates for political office. Amendments, buried at the end of a long ballot in fine print, discourage careful examination in the voting booth and thus tend to draw "no" votes from those wary of the unfamiliar.

Oniy by vigorous campaigning, extensive advertising, and considerable newspaper coverage can an amendment receive sufficient attention to enable it to pass.

Therefore, an amendment must either have much emotional appeal, be backed by devoted supporters with plenty of money, or be so sorely needed as to appeal to an overwhelming majority of the electorate.

Even the combination of all these factors affords no guaranty that an amendment will pass. The Arkansas experience shows that

amendments are generally used to fill special needs that are widely recognized and have strong financial support, and that the absence of financial backing normally spells defeat for any proposed amendment. 1 RTAC 5 (1968) What, then, will it take to get this proposed amendment passed. At the very least, the organized bar will have to ply on its greatest potential political asset-the fact that it is organized, however loosely.

The Arkansas Bar Association's House of Delegates has gone on record supporting the amendment through the passage of a favorable motion on the SUbject at a called meeting on September 18,1977, and a private group of lawyers around the state recently formed a committee (Lawyers' Committee for Amendment 58) to mount a political campaign effort; however, unless most lawyers in the state actually participate to some degree in the effort, the proposed Court of Appeals of Akansas will likely remain just that-proposed. "

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TRUST DEPARTMENT October 1978/Arkansas Lawyer/157

GEORGE HOWARD, JR. ASSOCIATE JUSTICE ARKANSAS SUPREME COURT

by J. W. Dickey, Jr.

Some 25 years ago George Howard, Jr. set up his practice of law in Pine Bluff, Arkansas. Last December when he was appointed as Associate Justice of the Supreme Court of Arkansas he temporarily left the same identical offices on the second floor of a Main Street building. Back then it was but two rooms, now five rooms; back then he didn't really know what to expect, now he knows that he has been successful in what he has set outto do, i.e., represent people legally; and back then he probably had no idea he would ever achieve the position of being an Associate Justice.

Here are his tangible honors to date: Past State President of the NAACP; member and chairman of the State Advisory Committee of the U. S. Civil Rights Commission; past President of the Jefferson County Bar Association; past member and chairman of the State Claims Commission (appointed by Governor Rockefeller); successful appearances before the U. S. Supreme Court; and now the first black since Reconstruction to be appointed to such a responsible and prestigious position as Associate Justice.

When Judge Howard came back from fighting in the Pacific Theater in World War II an event occurred that might have set the tone for his contributions to his race and to his profession. After the war he was with the troops which were being shipped home on the USS Hornet. "One morning I went down to the bathroom to wash up prior to going to breakfast, and blacks were prevented from entering," Judge Howard related. "This was very disturbing to me. I spoke to the officer in charge and was not satisfied with his response.

"In late afternoon, I finally found myself with the chief officer in charge of the carrier. The next morning, those barriers had been removed. I concluded then that blacks often do not get their rights because they don't 158/Arkansas Lawyer/October 1978

ask or demand them. There was a principle that moved me - it paid off."

What really seemed to happen was not confined to the wash room of the路 USS Hornet, it gave young Mr. Howard a reason or a cause to further his education and become a lawyer. He wanted to help those people who had rights but would not or could not speak up for such rights - in short, he wanted to offer a "service", as he puts it.

The year he graduated from college was 1954, thesameyearthatthe U. S. Supreme Court handed down Brown vs. Topeka Board of Education. Judge Howard does not equate the two events, he would modestly state that the Brown Case will be more of a lasting monument than his obtaining a law degree. However, he does talk to the young lawyer's eager anticipation of such a court decision, the relief when it came, and the surprise that the deCision was unanimous. Here was a lawyer who had been reared by a laborer-father, a school teacher-mother, had been educated in "separate-but-equal" school systems and who by training, environment, and tradition had learned to live and not complain about his condition in life, until he saw what could happen with a proper protest of rights violated as on the USS Hornet, and until he studied and re-studied the Brown opinion.

During this time Judge Howard had managed to convince his childhood sweetheart, Vivian Smith, to marry him; they have had four children: a married daughter, Sarah Etoria H. Jenkins, age 30; George Howard, III, recently discharged from the Navy; Risie Howard, 18, a pre-law student at U.A.P.B. and Alycia, age 10. The Howard home is in Pine Bluff, as it has been always, but only in recent years have they moved into an ante-bellum type, high ceiling, well decorated home on West Second Avenue.

As circumstances would have it,

the oldest daughter would be a part of placing Judge Howard in his toughest role, that as chief counsel for the plaintiffs in the "Dollarway School Desegration Cases". Here was a man who had watched from the wings during the 1957 Little Rock Central crisis and court battles - giving as much support as was requested to the then chief counsel, Pine Bluff attorney, Wiley Branton. But in the Dollarway School situation there was a student named Sarah Etoria Howard who would be attending Dollarway during the toughest and darkest times of the litigation. Mrs. Howard, the wife and mother, talks of those days as being filled with threats, coats made wet by spit, driving different colored and make of cars to the school grounds, getting her husband and daughter ready for the day and wondering whether they would return healthy, welcoming them home and caring for them only to prepare for them to return the next day and stiffening up a little each time the phone would ring during the day. However, chief coun-

Judge Howard

sel Howard performed under those conditions as he has so many times in the past, calmly, professionally and without vindication, bitterness or revenge as a motive. His cause was successful, his daughter was in the first graduating class and the Attorney Howard had performed another "service" for his community, his profession and his family.

His quiet ways may have angered the young impatient blacks of the 1960's but as Vivian Smith Howard states she has heard him time and time again state in different ways, but always the same message: "It can be done the right way." The "It", of course, being racial progress, the "right way" being the legal way. There is definitely a thread of adherence to the law in Judge Howard's approaches to solutions. He points with pride to the fact that the following reforms were brought about in Pine Bluff without a suit: buses were integrated, separate water fountains in the courthouse were abolished, and blacks were allowed to sit at lunch counters. In listening, you can tell that the same approach was probably taken in each instance as was taken on the USS Hornet. The benefits that such approaches of Attorney Howard brought to his community were and are untold. However, Judge Howard may have made his greatest contribution to integration

in his community by not bringing a suit in which he was personally involved, in or around 1969. The facts were these: When interrogating two police officers about a matter dealing with one of Mr. Howard's clients, a dispute arose with the officers and Mr. Howard leading to an argument, which in turn led to Mr. Howard's being arrested, finger printed and taken to jail with his arm twisted behind his back. Due to a courageous and favorable affidavit of a young white lawyer named David K. Gunti, the prosecution declared a nolle prosequi and the charges were dismissed. There had been picketing, pUblicity and the "works" surrounding this incident - but Mr. Howard brought no suit against the officers.

This was his decision even though he had brought numerous such suits on behalf of clients alleging time and again acts of police brutality and the like. However, he stated that it was the motive of "service" and not "vindication or revenge" that motivated him in the suits brought - in his own case there was also no "revenge" drive, and since he was the client there would be absent the same "service"; so no suit. Many say today that this composure (judicial temperment?) in this circumstance could have done more to bring people together in Pine Bluff during this decade than any other act.

Judge Howard And Family

In the area of economics of his legal practice, both Judge and Mrs. Howard talk about the service to clients.

Mrs. Howard did have to work for years to allow them to get by, but she had no regrets of the policies of her lawyer-husband in never refusing a case because of the client's lack of money, that he only seldom even sent out a bill, or never really took on the practice of law as a money making profession. They both state rather relaxingly: that somehow "God provided" in these times.

Which comment leads to another observation of this man, Justice George Howard, Jr. When asked what he considered to be his greatest accomplishment in his career he stated: "Serving as the chairman of the Building Committee of my church, the New Town Missionary Baptist Church." His wife tells about how effectively her husband served, how frugal he was, how he got everyone he could to help and how pleased he was when the building was finally completed. He states that this 1Y2 year project enabled the young people to have something they could be proud of, and be identified with, but he communicates without saying, that this was the least that a servant could do to show his gratitUde to his God. If this response doesn't tell you about the man, here is a quote from the Arkansas Democrat that Mr. Howard made: "I don't harbor anger", he said. "This is one thing our minister emphasizes from time to time from the pUlpit. One who professes to be a Christian certainly must be Christlike.

One should strive diligently not to harbor anger or seek vengence."

What more could we ask for in an Associate Justice: a man who has experienced lowly upbringings, who found out early that reforms can come by respectful but effective means, who has been in the "trenches" in representing clients and trying cases, who has "walked with kings" in the appeals to the upper appellate courts of the United States, who is devoted to his family and they in turn to him, who has placed "service" in his profession above all motivation, and most importantly, is grateful and responsive to God? Just remember, Arkansas lawyers, this is the second such Justice of the Supreme Court of Arkansas that the city of Pine Bluff is providing; the other happens to be the Chief Justice. " October 1978/Arkansas Lawyer/159

REPORT ON

PROPOSED

AMENDMENT NO. 58 For a long number of years the Arkansas Supreme Court has been one of a limited number of appellate courts, working without aid from an "intermediate" appellate court, that has remained current with its caseload, and this has been true through 1977. By "current" is meant that when the court has taken its short recess in July or August, all cases ready for submission have been acted upon.' This is a remarkable record and the people of the state can take pride in having a court that is zealous in carrying out its duties.

However, the caseload over the years has consistently risen, and despite redoubled efforts by court members, longer hours, and a much shorter recess, the Arkansas Supreme Court cannot continue to remain current without additional help. As a matter of seeking an answer to the caseload situation, the court has sat in divisions for nearly two years, but while of some help, this procedure has fallen far short of solving the problem. The total workload of the Supreme Court has increased nearly 70% since 1966, and has increased almost 30% within the last three years. The criminal caseload has really leaped, increasing approximately 335% since 1966.' (It might be here mentioned that the term "workload" is not synonymous with the term "caseload." The latter term has reference only to the cases filed, while workload 160/Arkansas Lawyer/October 1978

refers to every matter docketed which the court must act upon; for instance, all motions, petitions for rehearing, etc.)

The most notable fact is that the caseload is constantly increasing; for instance, in 1973, 483 cases were filed; in 1974, the number was 539; in 1975, filings had increased to 609; in 1976, they had reached 655, and last year (1977). 673 cases were filed with the clerk of the court.

As one would expect, the rising caseload in trial courts is the reason for the great increase here, since all appeals come from the circuit, chancery and probate courts. The figures relative to filings in those courts since 1966 clearly reflect this fact: 1966 1967 1968

43,009 44,950 44,656

1969 1970

49,409 50,711

1971 1972 1973 1974

51,869 56,359 60,519 66,250

1975 1976

71,428 72,729

1977

77,360

Under Act 496 of 1965 creating the Judicial Department, the Chief Justice is authorized to assign judges from one trial court to another, or to assign retired judges, and this is an aid in balancing the trial court load, but there is no provision in the law to furnish aid to the Supreme Court.

The experience of other states reflects that the only answer to rising caseloads in the Supreme Courts is the creation of what is commonly called "intermediate" appellate courts.

These are courts of appeal which stand between the trial courts and the Supreme Court.

It is significant that every state which borders Arkansas (Texas, Louisiana, Tennessee, Missouri, Oklahoma, Mississippi) has a Court of Appeals except Mississippi, which has nine Supreme Court justices (rather than seven, and sits in Divisions). In addition, Texas, Tennessee and Oklahoma also provide a criminal court of appeals and the Supreme Courts of Texas and Oklahoma never handle any criminal case at all; the Tennessee Supreme Court only handles criminal cases where the sale question is the constitutionality of a statute or ordinance. Likewise, the states in our category, population-wise, have "intermediate" appellate courts. Arkansas ranks 33rd in population, and Oregon (30th), Kan-

sas (31st), Arizona (32nd), and New Mexico (37th), all have "intermediate" appellate courts.

The caseload situation was presented to the 1977 General Assembly, and that body enacted a proposed consitutional amendment which will be voted on by the people in the general election to be held in November, 1978. It is deemed significant that, though numerous proposed amendments on various subjects were presented to the legislature, only the one mentioned passed, the Assembly recognizing that something had to be done to help reduce the workload of the Supreme Court.

The amendment is very short and concise and reads as follows: SECTION 1. The General Assembly is hereby empowered to create and establish a Court of Appeals and divisions thereof. The Court of Appeals shall have such appellate jurisdiction as the Supreme Court shall be rule determine, and shall be subject to the general superintending control of the Supreme Court. Judges of the Court of Appeals shall have the same qualifications as justices of the Supreme Court and shall be selected in the manner provided by law.

ONE FACT SHOULD BE MADE VERY CLEAR, viz, this proposed court will NOT be just another step in reaching the Supreme Court. Such a court would be of no aid nor benefit whatsoever. Rather, it is contemplated that the proposed court of appeals would have final jurisdiction in some types of cases. As an example, this new court might well be given jurisdiction in appeals originating in administrative tribunals, and the decision of the court of appeals would be final in those cases.' The geographical locations for a court of appeals would be set by the General Assembly, but the jurisdiction of such courts would be established by the Supreme Court and, of course, based on experience could be changed from time to time if deemed necessary. In fact, the entire amendment is flexible and will permit needed changes for the administration of justice by both the

General Assembly and the Supreme Court.

The court at the present time is taking 14 and 15 cases per week, and last year averaged writing over 70 opinions per individual. There is no way that an individual justice can properly devote the necessary amount of time to each case when that many are being written - and, as already stated, the CASELOAD INCREASES EACH YEAR. There comes a time when human ability reaches the breaking point and additional cases just can't be handled. Experience of other courts that have faced this problem clearly reflects that once a court gets behind it never catches up - it only goes a little deeper in the hole.'

The Arkansas Supreme Court has a splendid record and is highly respected by all the courts in the nation.

Let us render our assistance that this court may stay current and continue to render its decisions within a reasonable period of time, in order that our citizens who have litigation in the courts may early learn of the disposition of their case, and that is shall never be said in this state that justice has been denied because it was so interminably delayed.

WE URGE YOUR SUPPORT OF PROPOSED AMENDMENT NO. 58 AT THIS GENERAL ELECTION.

LAWYERS COMMITTEE FOR AMENDMENT NO. 58 Louis Ramsay, Chairman Jack Deacon Henry Woods William J. Smith Neva Talley Brad Jesson William I. Prewett

FOOTNOTES 'Of course, when a case is subm~足 ted near the end of the court term and there is a wide divergence of views, it is necessary to carry the case over. In two other instances, it might be necessary to pass cases, viz, when there is a case pending before the United States Supreme Court in which the decision would be controlling in the case before us, and where special justices are named in particular cases to replace court members who are required to disqualify and the special justices need more time to prepare an opinion.

'All statistics obtained from files of Judicial Department.

'Of course, in case of a conflict of decisions between two courts of appeal, the Supreme Court would determine the matter through issuance of a Wr~ of Certiorari.

'A few years ago, it was necessary that the governor of one of our sister states, in order to stop a terrific backlog of cases, appoint a number of lawyers to act as special judges to try and dispose of some of the litigation.

Notes,

"

continued from page 193 Legal Education. Following discussion, Harley Cox moved that the Association retain all publication rights to all systems, (both present and future). This motion was seconded by Mr. Stroud and following discussion, a vote was taken. The motion carried unanimously.

16. Reprinting of Constitution and By-Laws Colonel Ransick reported that the Association was reprinting the Constitution and By-Laws. He indicated that 3,000 copies had been ordered and that they would be sent to the members of the Association with a letter of transmittal.

Wayne Boyce reported that the Chief Justice had called again for the support of the Association in conjunction with the intermediate Court of Appeals for Arkansas.

There being no further business, the meeting was adjourned.

#......

October 1978(Arkansas Lawyer(161

3Jn flemoriam Mark the perfect man, and behold the upright; for the end of that man IS peace.

Psalms 37:37

BOLIVAR LEA ALLEN Bolivar Lee Allen, 65, former general counsel for Monsanto Company in Houston, died November 29, 1977, at Nacogdoches, Texas.

A 1936 graduate of Harvard Law SChool, Mr. Allen practiced law in EI Dorado from 1937 to 1957, when he moved to Houston. He was a member of the Houston, Texas, Arkansas and Amencan Bar Associations, and also was a member of Houston's Riverbend Country Club, The Houston Club, and SI. Luke's United Methodist Church. Mr. Allen was a Navy veteran of World War II. Survivors include his wife of 39 years, Virginia Barganier Allen; a son, Richard Lang Allen; a daughter, Mrs. Edward Breihan, III; a brother, Walter H. Allen; two grandchildren and several nieces and nephews.

FRED HUGH STAFFORD Fred Hugh Stafford, 81, of Marked Tree, died February 23, 1978.

A resident of Marked Tree since 1933, he was a member of the Arkansas Senate for 18 years. and served as President Pro Tem in 1965 and 1966. Mr. Stafford was a member of the Rotary Club, First United Methodist church, and a former member of the Marked Tree School Board.

Survivors include his wife, the former Euenice Pace; a daughter, Freda Stafford Schuyler; three grandchildren and three greatgrandchildren.

EARL DEMEL Earl Demel, 70 a longtime resident of Plymouth Township, Michigan, died March 16, 1978. He had practiced law for 44 years, and in the Plymouth area since 1940.

Mr. Demel was a 1932 graduate of the University of Detroit Law School.

He served as attorney for Plymouth Township for 28 years, and for 2 years as Canton Township attorney.

162/Arkansas Lawyer/October 1978

He was the first mayor of Center Line, Michigan, and served one term as jUdge in Warren Township. Mr. Demel was a member of the Arkansas and Michigan Bar Associations, Plymouth Fr. Victor Renaud Council 3292, Knights of Columbus, and the University of Detroij Titan Club. He was also the first lay member of the Madonna College Board of Trustees.

Mr. Demel is survived by his wife, Betty Demel.

LARRY S. PATTERSON State Representative Larry S. Patterson, 35, died May 11, 1978.

A graduate of Vanderbilt University School of Law, Mr. Patterson had practiced law at Hope since 1966. In the House, he was a member of the JUdiciary Committee, the State Agencies and Governmental Affairs Commillee, and the Southern Legislative Conference Criminal Justice Committee. Mr. Patterson was a member of the Arkansas and American Bar Associations. and First Untled Methodist Church. He had been city attorney for Fulton, Prairie Town, and Blevins, and served as referee for Hempstead County Juvenile Court from 1970 through 1976.

Survivors include his wife, Mrs. Jo Carol Cox Patterson; two sons, Larry Jr. and Zane Patterson; a daughter, Miss Jan Patterson; his parents, Mr. and Mrs. Herschell Patterson; and his grandmother, Mrs. Myrtie Moore.

THOMAS E. DOWNIE Thomas E. Downie of Lillie Rock.

63, died May 13, 1978.

After graduation from the Universtly of Arkansas Law SChool, he practiced in Lillie Rock before serving as an Anmy officer in World War II, and was awarded the Bronze Star, the Silver Star, and the Purple Heart. Mr. Downie became a deputy prosecutor for Pulaski and Perry Counties in 1946, and served as prosecuting attorney from 1950 to 1954. He was

past district commander of the American Legion, past first vice commander of the American Veterans of World War II, and a deacon and elder of the First Presbyterian Church. A founder and Chainman of the Board of Presbyterian Village, he was also a founder of the Arkansas Council on Human Relations. Mr. Downie was a past president of the Arkansas Bar Association, a member of the Board of Win rock Enterprises, a former member of the Board of Trustees of Arkansas College, and a former member of the Board of Visitors of Davidson College.

Survivors include his wife, Mrs. Katherine Foster Downie; two daughters, Mrs. Fred Harrison and Miss Katherine Downie; a brother, Robert C. Downie; three sisters, Mrs. James Carvell, Mrs. George B. Talbot, and Mrs. James Brown, and a grandchild.

JUDGE TERRY L. SHELL Federal Judge Terry L. Shell, 56, died June 25, 1978.

After graduation from the University of Arkansas Law School in 1949, he practiced in Jonesboro until his election as 12th Circuit Chancery judge in 1969, where he served until his appointment as federal judge in 1975. A former state representative, JUdge Shell also served 5 years as prosecuting attorney for the Second Judicial District. He was an Executive Board member and lonmer president of the Arkansas State Judicial Council. and served as a member of the Arkansas Criminal Code Revision Committee from 1972 through 1975.

He was a member 01 the Craighead County, Northeast Arkansas, Arkansas and American Bar Associations; the American Judicature Society; and First Baptist Church. Judge Shell was a veteran 01 World War II. Survivors include his wile, the former Sara McCutcheon; and 2 daughters, Mrs. Suzanne Churchill and Miss Jeanne Shell.

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October 1978(Arkansas Lawyer/163

INSURANCE THE MEDICAL MALPRACTICE "STING" -Charles A. Brown

Using a 1930's set1ing, "The Sting" not only gave us "The Entertainer", but also showed us how Paul Newman and Robert Redford made elaborate plans and took great pains to perfect a scheme to "score" in such a manner that the "mark" caused damage to himself without being able to blame anyone other than himself.

The similarity between the present medicai malpractice drama and "The Sting", is quite apparent when one recognizes that the medical profession in Arkansas, through its Associational Executive Offices, is preparin9 elaborate and expensive plans to accomplish a "score" that will have the medical service consumer inflicting damage to himself with no one to blame but himseif.

In the medical malpractice drama, the "score" is to relieve, or diminish the responsibility of medical providers for the consequences of their negligent and wrongful acts.

The set1ing for this drama is against a background of carefully orchestrated but unverified assumptions, misleading data, myths, and a frantic unwarranted fear by our elite class, i.e. the Physicians and Surgeons.

We hear that the medical malpractice crisis is upon us because doctors, physicans and hospitals are being inundated with claims of infinite proportions. These claims proportedly have caused the insurance companies to lose money thereby justifying unpre164/Arkansas Lawyer/October 1978

cedented hikes in rates.

However, the facts have shown that the Casulaty Insurance Comanies in 1974 did not lose their fortunes from claim losses, but lost their fortunes playing the stock markets.'

The number of claims reported and paid, or otherwise closed between July 1, 1975 and June 3D, 1976, in Arkansas, were 35 paid, and 96 closed unpaid.' During that period of time, all insurance companies writing Arkansas malpractice business paid a total indemnity of $1,433,366 for doctors and hospitals. The average payment on the claims that were paid was $40,953.31. But, one incident spanning a period of 53 months from the date of injury to its closing accounted for $450,000 of the payments. Without these unusually large one incident ciaims, the average loss to an injured person who was paid would approximate $32,000. Unpaid claimants were not included.

The National Association of Insurance Commissioners have used 1973 statistical information to determine the number of physicians practicing in Arkansas. The number of practicing physicians shown to have been practicing in Arkansas in 1973 was 1973. However, recent correspondence from Dr. Joe Verser of the Arkansas State Medical Board, the licensing authority for medical practitioners, reveals that in 1975 there were 3,741 physicians licensed in Ar-

kansas, in 1976 there were 3,881 licensed, and in 1977,4,154 physicians were licensed.' Using the 1976 licensing figure as an appropriate divider for the last 6 months of 1975 and the first 6 months of 1976, the paid loss per physician practicing in Arkansas, averaged 5369.32 per physi-

cian.路 Those recent statistics show that from 1973 through 1978, 2,161 additional physicians were licensed to practice medicine in Arkansas. This record fact effectively dispells any validity to the my1h that high insurance rates in Arkansas have caused physicians to leave this State. This argument may now well be abandoned, but in 1976, it was a staunch bastion presented to the Legislature in an effort to stampede the legislature in believing that a medical malpractice crisis did exist.

It is noted that the NAIC's report

shows a per capita loss of $369.32 per physician during 1975-1976, using the 1976 official data. This figure, is weighted because the total "paid out" sum includes 73% loss from physicians and surgeons errors, and represents 27% for loss occasioned by hospital errors.' In other words, the total loss reflected in the report for Arkansas from June, 1975 to July 1, 1976, includes licensed physician's losses, and includes the losses occasioned by hospitals.

Since no accurate method is available to separate the two groups included in the report, the losses must be treated in this article as if they were occasioned by Physicians or Surgeons only. The reader should remember that on a national average basis, that the figures include a 27% factor for institutional losses.'

Section 6-9A, of the NAIC Report, dealing with nationwide claims, shows that 18% of all claims result from physician error doing minor surgery, 15% for physician error where no surgery occurs, 13% occur when OB-GYN surgery has been performed, and 12% occur in general surgical miscellaneous procedures.

The anestheiologist, who is charged with 6% of the total claims made, actually paid 13% of the total indemnity paid to claimants. Orthopaedic surgery, representing 8% of the claims made, also has paid 10% of all losses paid to former patients. All other fields, as separate categories, did not exceed 8% of the claims made, or 7% of the amount paid. The national averages for a paid claim showed that in the field of chiropractics, with one claim paid, a loss of $54,000 occurred; and the X-ray Lab Technicians, with two paid claims did average $50,250.00 each. These paid claims constituted the highest average level of payment for all physicians; however, those figures should not be heavily relied upon because of the few claims paid in those classifications. More realistically, the Neuro-surgeons, with 2% of the claims made against them, averaged $47,371.00 per recovery, the anesthesiologist with 6% of the claims made against them averaged $43,366.00 per recovery paid. The orthopaedic surgeon, with 8% of the claims made, and 10% in total payments, reflected an average recovery of $22,555.00.

This most recent NAIC report furnishes proof that the nationwide average of paid claims is $20,039.00 each, based on slightly less than 5,000 claims paid. This fact effectively disperses the myth that every claim made against doctors results in an astronomical recovery. Doctor's basic policy limits usually are $100,000.00. But no average indemnity paid, even the chiropractor, exceeds 54% of that basic limit.

Looking at the Arkansas situation, the comparison of the amount of premiums collected and earned, the amount of St. Paul Fire and Marine Insurance Company's paid loss, and the amount of additional reserves since 1975 is very revealing, and are as follows: St. Paul's Annual Report for Years:

Premiums Written

damages repaid to the injured patients total $1,433,366.00, or about 6/10ths of 1% of their gross income.

As noted above, in 1977 St. Paul alone, received, after losses and reserves, 3V4 million dollars for profit, operating expense and claims adjustment expense. The national average for defense expense per defendant physician was $2,848.00.' The 35 Arkansas claims incurred during the reporting period should therefore have incurred about $75,000.00 in denfense expense.

The amount of potential profit for St. Paul is shocking.

One must admit that St. Paul charges an excessive premium for insuring against the exposure which experience now proves to be slight.

Premiums Earned

(6)

1975 1976 1977

2,346,444.

3,439,748.

4,205,352.

1,269,240.

2,752,487.

4,007,415.

Using the total claims and total paid claims, as shown, in the NAIC's Closed Case Malpractice report from June 30, 1975 to July 1, 1976, as a criteria, and assuming that the number of physicians licensed in 1976 is the more correct for 19751976 figures, it is seen that 3/1 OOths of a claim is made per practicing physician; and that 9/1000ths of a claim per physician was paid because of injuries caused by the physician.

To show the actual loss per physician in consumer terms, if you assume that the average physician charges only $1 0.00 per visit, spends 10 minutes per visit per patient; and sees 6 patients per hour for a 5 hour day, 5 days per week, the average physician would gross $78,000.00 per year against an average maximum indemnity exposure of $369.32 per year. This assumption, as a practical matter, is obviously weighted for the physician.

But, the reasonableness of these computations are buttressed by the findings of the U. S. Council on Wage and Price Stability report that $63,000.00 was the average net income of the average practitoner in the United States.' The income of the major specialists average $100,000.00, or more. Assuming the 3,881 Arkansas physicians in 1976 were only average practitioners, using the national averages, those physicians received $244,503,000.00 while

Indemnity Paid (less .aJv090)

Reserve for Incurred Loss

325.

60,000.

6,207. 447,126.

107,093. 634,530.

However, Arkansas Physicians and Surgeons, according to their attorney's report to the Arkansas Legislature in 1976, have to blame themselves. The Association directed their attorney to withdraw the objection to the insurance rates requested by St. Paul Fire & Marine Insurance Company in 1974. The Association has indicated this was done because of the threat by St. Paul that it would withdraw from writing coverage in Arkansas.

Here again, the Arkansas Medical Association must accept part of the blame for this situation. The Medical Association formerly insured against malpractice losses through Aetna Insurance Companies. They concluded that they could get a cheaper policy from St. Paul, therefore, they transferred the bulk of the members' business to St. Paul. When Aetna withdrew writing new business in Arkansas, rather than to furnish the facts concerning its loss data considered necessary to determine a fair premium to be charged in Arkansas, this left St. Paul as the only new business underwriter of medical malpractice insurance. If the Association had split their business between the two companies, some type of competitive position between the companies would probably have been maintained. All companies state and rightfully contend, that a small amount of the busicontinued on page 166 October 1978/Arkansas Lawyer/165

The "Sting" continued from page 165

ness will not support the risk of extreme loss, especially if the dregs of the market seek coverage from them.

A lesson from this should be learned by all professional associations who insure with one carrier.

A recent news release from the Rand Corporation, published in the June 8, issue of the New England Journal of Medicine dealt with some widely held misconceptions erupting in the medical malpractice drama. In answer to the misconceptions that "too many" successful malpractice suits ending in judgments existed; and, that "good" physicians rather than "bad" physicians were being sued, the Tuffs University Medical professor and the Wisconsin University Professor at Law reported as follows: "Although claims have risen nearly 50% since 1972, studies indicate that probably less than a fifth of malpractice instances result in claims. The average malpractice award - in 1974, for example - was slightly less than the medical expenses and lost earnings of the claimant."

"A small percentage of physicians are involved in a large percentage of all claims successfully prosecuted."

The report further stated that "in a four year period, 46 physicians (0.6% of the 8,000) accounted for 10% of all claims and 30% of all payments made by the insurance plan. The average number of suits against the 46 doctors was one and one fourth per year." ... "Analysis indicates that doctors against whom multiple suits are brought, do indeed, represent a higher-risk population than their colleagues."

The Rand Corporation is a private non-profit institution engaged in research and the analysis of national security and domestic affairs issues; and, it is headed by Dr. Donald B. Rice.

Another my1h that was exploded in the New England Joumal of Medicine article was the my1h about the doctor being required to practice "defensive medicine". Physicians say that they prescribe "unnecessary" procedures in order to protect themselves against medical malpractice suits.

At the outset, it must be remembered that reasonable, careful, doctors set the standard of care necessary for the expert treatment of pa166/Arkansas Lawyer/October 1978

tients; therefore, any "unnecessary" procedures are unnecessary.

The Rand report states that the standard, in order to justify the level of care that physicians think is correct, is established by the physician spending the funds necessary to maximize his income taking into consideration the maximum amount of loss that he is willing to assume. The report goes on to say that with an effective malpractice situation, the potentially negligent physician will be stimulated to invest more time at no increase in pay because he probably could not set his fees higher than his more competent colleagues. The negligent physician must then meet the standard required by his competent colleagues.

As for the consumer, if the standard requires additional diagnostic procedures, every consumer of medical services will feel that his trust was betrayed if his physician did not meet the standards required by his competent colleagues. Therefore, this my1h is really so much smoke.

Much can be said about medical claims in Arkansas, but since the passage in the legislature of a bill requiring that medical malpractice claims be reported to the Arkansas State Medical Board, commencing January 1, 1978, the actual number of claims tells the story. The following quote is from the letter of Dr. Joe Verser, Secretary-Treasurer of the Arkansas State Medical Board, dated May 25, 1978. "... according to our records, we have seven malpractice claims filed in this office for the year 1978. The amount of the claims on two cases was not given. The other amounts are as follows: $50,000.00, $500,000.00, $425,000.00, $550,000.00, and $150,000.00.

From this writer's experience, the amount as shown in the Ad Damnum clause of a complaint as compared to actual recovery, represents wishful thinking. Usually, in a medical malpractice case, a recovery of 10% of the amount sued for would be something for the attomey to boast about.

The prayer amount, as any lawyer knows, seldom has any firm relationship to the amount of actual damages that may be awarded by a jury. The statistics of St. Paul Fire and Marine Insurance Company, as reported upon their annual reports and the statistics as reported upon their annual reports and the statistics as re-

ported to the National Association of Insurance Commissioners, truly reflect that 10% of the requested recovery is usually a mere hope of the lawyer. The average recovery approximates $20,000.00 per paid claim nationwide.'

With the medical profession assiduously acquiring signatures upon a petition to be presented to the Legislature to again "prescribe" the amount of recovery the injured patient may recover for the wrongful acts of the doctors, each attorney practicing law in Arkansas, if they respond to their duty to protect the pUblic, should acquaint their clients with the true facts in order to be ready for "The Sting".

Why should the highest paid profession, the blessed in our society, be exempt from the consequences of their negligent acts?

No other class of people have such a favorite position. Such position would erode the Biblically endorsed principle that a person who is at fault should pay the damage that his fault caused. Would not this favored position remove the physicians incentive to give reasonably careful treatment to their patients? The Rand Corporation Report data supports the proposition that the patient will be the suffering "Mark". The patient will suffer not the faUlty physician. America's consumer of medical services, whether he be a laborer, a businessman, a farmer, or a sick citizen, he is entitled to professional medical care, and not "The Sting". , FORBES MAGAZINE, April 15, 1975 Issue.

Tables lB, 26, 36, 48. page 21, Volume 1.

I

Number 4, May, 1977, National Association

of Insurance Commissioners Report of Closed Medical Malpractice Claims. s Letter of May 25,1978, from Arkansas State

Medical Board.

• 3,881 total physicians licensed divided into $1,433,360 paid for both Physicians and Institutional cases. Table 28. Page 128 & 129, Volume " November 4, May, 1977, NAIC Malpractice Claims Report.

• Table 5, Page 27, Vol., Number 4, May 1977, NAIC Malpractice Claims Report.

Page 14, of the Annual Report of St. Paul Fire & Marine Insurance Company for each year.

7 See: Arkansas Gazette, Section F, March 14, 1978.

• Table 6 - 9a, Page 32, Volume 1, Number 4, May, 1977, NAIC Closed Medical Malpractice Claims Report.

• Doctors, Damage and Deterrence, An Economic View of Medical Malpractice, The Rand Corporation and the New England Journal of Medicine, June 8, 1978.

l

#-...

I i

·1

I

~

WORKERS' COMPENSATION PRACTICE IN ARKANSAS

by Donald C. Frazier

The load of workers' compensation practice is increasing for the attorneys in Arkansas.' Until recently, there was little written that provided practical direction for those representing workers' compensation claimants. Fortunately, the Arkansas Bar Association has produced a manual on the practice. Entitled, Arkansas Workers' "Comp" System, it is available from the Arkansas Bar Association, 400 West Markham, Little Rock, Arkansas 72201.

Some states, such as California, have recognized the specialized nature of workers' compensation practice and have even begun to allow attorneys who have satisfied certain requirements to advertise as workers' compensation specialists! While practice before the Arkansas Workers' Compensation Commission is not normally difficult or exceptionally complex, to do a competent job an attorney does need some awareness of what is expected of him. The author was a workers' compensation administrative law judge for three years until recently leaving to enter private business. The following is not a representation of the Commission's official position, but is a description of the observations of a former law judge with the agency.

The following is written primarily for the claimant's attorney, since he has the burden of proof and sometimes does not have access to detailed advice from those with experience.

When a client comes to an attorney seeking redress for an injury allegedly suffered at work, the attorney should first realize that the client's only re-

medy is workers' compensation, under which all reasonable medical bills and a certain portion of lost income will be paid to him should his claim be found compensable, unless he worked for an exempted employer. 3 Exempted employments are described at Section 2(c) of the Workers' Compensation Statute (Ark. Stat. Ann. Sec. 81-1302 (c)) and includes work in domestic service, in agricultural farm labor, with charitable institutions and with publishing firms, unless the individual employer has elected coverage under Section 7 (Ark. Stat. Ann. Sec. 81-1307). The publishing firm exception covers newspapers, but they are required to provide insurance for newspapers carriers, under Arkansas Statute Annotated Section 81-716. For the greater certainty of payment and the usually quicker payment of workers' compensation, plus the absence of fault considerations, the worker gives up a potentially greater recovery from a civil suit in which he can seek additional categories of damages such as pain and suffering.' Admittedly, the speed and certainty in a particular compensation claim may be that of a tort claim.

While examining the client's compensation claim, the attorney should look for the elements of third-party liability actions against parties outside the employer-employee relationship. Products liability claims especially may appear in workers' compensation cases. (ShOUld one recover in any third-party liability action and have also been paid compensation payments, the compensation carrier has a right of recovery against the third-party proceeds up to

Administrative Law Judge with Arkansas Workers' Compensation Commission from December 74 to February 1978. Now in private busIness related to Workers' Compensation Practice.

two-thirds of the net third-party recovery.' Sometimes that two-thirds can be negotiated to a lesser amount.) The claimants's attorney should also be aware of a possible Social Security claim if the claimant is significantly injured or his most recent debility in addition to his already present debility renders him totally unable to engage in substantial, gainful employment.â&#x20AC;˘ The new Chairman of the Commission is Mr. Allyn Tatum. Among the changes he is interested in is more use of Section 35 of the Act. (Ark. Stat. Ann. Section 81-1335) That section provides a penalty for the misdemeanor of misrepresentation for the purpose of obtaining compensation benefits. It declares the practice of discrimination against the worker for seeking benefits to be a misdemeaner also. It will be difficult to assemble a successful case under either category but significant information about such an instance should be given to the Commission when it is found.

A particular interest of the Commission now is rehabilitation. The Arkansas Workers' Compensation Commission has never been significcontinued on page 168 October 1978/Arkansas Lawyer/167

Compensation continued from page 167

usually not enough money to justify controversion.

antly involved in rehabilitation nor has even encouraged it. Before the latest change in the statute, any request for rehabilitation had to be made after a permanent disability rating had been determined. Under the change made by the 1975 legislature, Section 10 (f) of the Act (Ark. Stat. Ann. Sec. 811310 (f)), "A request for such a program (of rehabilitation) must be filed with the Commission prior to the determination of the amount of permanent disabiltiy benefits payable to such employee:' That change will afford an early opportunity to begin to get the claimant back to work.

In preparation for a compensation case, claimant's attorney should first file a completed Form A-7 as provided by the Workers' Compensation Commission. Form A-7 is the basic claim form by which the claim procedure is begun. lithe attorney does not have the proper form he may write to the Commission to begin the process.

The letter should include the name and address of the employer, workers' compensation insurance carrier, if known, name and address of the employee, date of accident, place of accident, date employer notified, part of body injured, a one-line description of the occurrence of the injury as, "hurt back while lifting carpet roll," benefits being claimed and, if a death claim, the names and addresses of all the dependents claiming benefits.

Under "Benefits Claimed", the claimants's attorney should usually list temporary total disability, permanent partial disability, medical expenses, attorney's fee and, if appropriate, rehabilitation benefits.

At the time of this wr~ing, the most comprehensive statement the Commission has made about rehabilitation is the opinion in Daniel Franklin v. Pryor & Associates, Inc., WCC Claim No. C613937 (Opinion of Full Commission filed 2/10/78). There, the Commission stated its committment to rehabilitation. The Commission made clear its wish that the claimant make himself available for rehabilitation if" offered and that the carrier make it available in appropriate claims. The opinion was a remand for evaluation and for payment of ciaimant's anatomical disability but for no more until information was had about his being able to retum to work.

It is a long opinion and ail who represent compensation clients must read it to be well informed on the agency's position on the subject.

The attorneys on both sides should attempt to evaluate the claimant in terms of his potential for benefitting from help in reentering the work force.

There are professionals who can offer such evaluation services. In Franklin, supra, at 10 and 11, the Commission strongly suggested that the carrier pay for that evaluation.

If the carrier decides to fund a rehabilitation program as advised by the report, the claimant receives benefits under the maintenance category in the statute. The question of whether the carrier will be forced to pay benefits during vocational evaluation has not been ruled on by the Commission, but many, if not all, do pay claimant temporary total disabiltity benefits during evaluation. It is 168/Arkansas Lawyer/October 1978

The claimant may have an opportunity to collect money under a group disability and medical policy obtained through employment. An injured worker may be able to collect more quickly from such a policy than he can from a contested compensation claim. The claimant should avoid the temptation to collect under a group policy if he wishes to pursue the compensation claim since, in order to apply under the group policy, he must sign an agreement to the effect that his injury is not work-related. That document may later be used against him at a compensation hearing and may be difficult to overcome, though the claimant effectively argues that such forms are usually signed by the patient before the doctor fills them out.

Carriers have argued that procedures should be established enabling the group disability and health carrier to recover its payments from the compensation carrier if the claim is found compensable. Arkansas does not have such a procedure. Arguably, the lien procedure provided in Section 40 of the Act (Ark. Stat. Ann. Sec. 81-1340) indicates a willingness to do so, but the Commission has no authority to enforce a lien by the group carrier.

Incidentally, in representing a compensation client, the attorney should be aware that, under the Arkansas statute, the claimant cannot waive any right by accepting a payment from a carrier.' Thus, if the carrier pays only partly the amount claimed, !tie client should accept the draft and cash it, not return it. The only exception is a Joint Petition, discussed later.

Immediately upon receipt of a claim, the Executive Director of the Commission sends a form letter to the insurance carrier as listed in Commission records or, if the employer is self-insured, to the employer himself.

The carrier and the employer are both called the respondents. The form letter states that the respondents have fifteen days from the date of the letter to indicate whether they accept or deny the claim. Sometimes the carrier will contact the Executive Director of the Commission as the fifteen-day period nears an end and request additional time for investigation. The Executive Director usually gives an extension, but the claim is controverted if the respondent does not begin payments within the first fifteen days from notice, whatever his position may be regarding the validity of the claim. The earlier notice, either that from the Executive Director of the Commission or that given directly to the employer by the claimant, applies.

Notice given to either the employer or to the carrier constitutes notice to the respondents. The statute is clear and does not allow qualification.' The significance of the characteristic of controversion is that attorney's fees must be paid by respondents on all benefits controverted and later ordered by the Commission to be paid.' For a Full Commission Opinion on how late payment constitutes controversion, see Kisling v. Weingarten, Claim No. C602205, (Full Commission Opinion filed August 26, 1977).

If the claimant appears to have a compensable injury and the liability for that claim has not been accepted by the respondent within the fifteen days noted in the letter, the claimant's attorney should request a hearing immediately. The attorney can make that request by simply sending a letter to the Workers' Compensation Commission. The request should have a reference line citing the case and the

,

I

,I

Commission file number as noted on the copy of the letter the Commission initially sent to the carrier and should ask that a hearing on the claim be held as soon as possible. After the Executive Director of the Commission receives that request, he sends to the parties a letter indicating that the claim will be referred to an Administrative law Judge. Within ten days to two weeks the Administrative law JUdge receives the case file and sets it for a hearing, giving official notice of the date, the time and the place, through certified mail, return receipt requested, to all parties. The present lag between setting the date and having the hearing is four to six weeks.

During that time additional medical evidence is accumulated and efforts at settlement, if any, continue.

Frequently, attorneys ask for continuance. The Commission has had no articulated policy about continuances, though has never wanted to encourage them. Recently, it has decided that they should be resisted more strongly. One possibility is to allow an unquestioned continuance if made within five days of the receipt of the notice of setting, but to require a written motion after that. The motion would describe the reasons for the request. The Commission has a responsibility to afford the claimant a hearing as quickly and as efficiently as possible.

Under Rule 14 of the Arkansas Workers' Compensation Statute, all evidence to be submitted at the hearing should be submitted to the appropriate law judge at least seven days before the hearing. '0 Copies of all evidence intended to be submitted should also be sent to the opposing parties. Though certainly the Commission would prefer that Rule 14 be followed in its detail, it is frequently violated in letter but not in spirit. The real purpose of the Rule is to avoid the surprise introduction of significant evidence at the hearing. The law judge may sometimes elect to let in the late evidence but will hold the record open for an opportunity for the opposing side to submit a deposition from the relevant witness.

Evidence must be entered into the record by specific request, either at the hearing or subsequently, in order to be considered. Documents sent to

the Commission before the hearing are not evidence in the record unless so requested at the hearing or later.

Most documentary evidence in compensation hearings is medical reports. The statute requires that medical reports be verified, but normally they are not and they are accepted into evidence."

At the beginning of a hearing, the Administrative law Judge will ask for stipulations, then contentions of each of the parties. Some attorneys apparently believe that the law jUdge wants an Opening Statement. He does not.

All he needs is a simple list of the elements in contention, such as, "We are requesting temporary total disability payments to begin on the date of injury, May 16, 1975, and to continue to August 14, 1975," or, "We seek a permanent partial disability rating of 100 percent to the body as a whole, plus medical expenses and attorney's

fees."

While it is not critical to a hearing that it proceed only with the introduction of clearly relevant evidence, surely the value of a direct, precise professional presentation of evidence is obvious. An Administrative law Judge hears many similar arguments in the course of his work and does not have to be introduced anew to every detail of every claim. To reiterate, an Opening Statement is pl{rposeless in most instances. later in the hearing, a detailed description of the incident of injury is not needed in a hearing solely on permanent partial disability. The claimant's recounting his doctor's diagnosis is of no value to prove that diagnosis. Colorful word pictures about the many instances of the carrier's perfidy in its treatment of claimant are worthless.

Certainly, there will be exceptions in which detail of the claimant's life are important. For instance, in a heart attack claim, such information may be important to rule out factors so disposing to heart malfunction as to wholly remove the factor of employment from the possible cause.

A practice many attorneys might like to follow but rarely do is to ask the claimant, while he is giving testimony under oath, whether he agrees to have the expenses of his workers'

compensation case deducted from his award should there be one. At least one state, California, provides by statute for a lien for reimbursement to the attorney." While the carrier must, under the Workers' Compensation Statute, send the claimant his full award in a draft separately and directly, and the attorney his fee separately and directly, the attorney can and should prepare the claimant for such deduction of expenses from the award before the claimant pockets his portion of the award."

At a hearing an attorney may request that the record be held open to give him an opportunity to crossexamine or to depose significant witnesses, usually medical, after the hearing itself. There is normally no real problem with the schedule of the law judge to allow such since the transcripts are ready for consideration only after thirty days or more from the date of the hearing. Without diligence by the attorneys, that time can be quickly consumed without producing the desired evidence. The law judge usually completes his opinion within thirty to forty-five days from the submission of the transcript and the additional evidence. The Commission has recently taken steps to insure that no more than thirty days pass between the submission of a claim and filing of an opinion.

Settlements in contested claims are called Joint Petitions. "The Commission discourages use of the Joint Petition as a means of settling cases except in unusual circumstances," but joint petitions are increasingly used and must follow certain rules."

Most important is that no settlement can occur without Commission approval." After the petition is prepared and verified it should be forwarded to the Commission as soon as possible, since there is a minimum five-day waiting period between the Commission's receipt of the petition and the hearing." Still, by asking the particular law judge to whom the claim is assigned, or the Secretary ~ it has not been assigned, an attomey can secure a hearing in a minimum time.

The main value of the joint petition to the carrier is that it completely ends the claim. The claimant may not return for additional benefits once ajoint petition is approved, and there is continued on page 170 October 1978/Arkansas Lawyer/169

Compensation continued from page 169 normally no appeal from an order allowing or denying a joint petition."

Thus, it should not be used if there would probably be any future medical treatment necessary or additional time lost from work, unless the respondents under the terms of the joint petition pay an amount that will cover a reasonable estimate of such expenses. Respondents should normally be expected to pay all medical expenses upto date of approval of the joint petition.

It has been charged that joint petitions are proposed and approved in far too many claims than proper consideration of the ciaimant's interests would urge. Joint petitions will continue to be entertained by the Commission jUdges. The law judge should question each petitioner closely about whether he has returned to work and, if so, his new wage compared to his old one, his plans to continue medical treatment or not and generally questions to determine how effectively he has recovered.

A "schedule injury" is one to a named part of the body under Section 13 (c) of the Act (Ark. Stat. Ann. See 81-1313 (c)). Under Anchor Construction Company v. Rice 252 Ark. 460, 470S.W. 2d 573 (1972) and later cases, in determining a permanent partial disability rating to a schedule injury, only the anatomical disability rating is used to determine permanent disability benefits, unless anatomical disability, plus loss-ofwage-earning capacity, results in permanent and total disability. The anatomical disability rating is the percentage of loss of physical capacity of the affected member,ortothebody.lf the injury is to the body as a whole, as in back claims, loss-of-wage-earning ability is also considered." One way to increase the money the claimant receives with a schedule injury is to agree to ajoint petition, since the carrier must pay extra to end the claim.

If the carrier accepts compensability of a claim, the claimant may apply for a lump sum payment. All unaccrued amounts of the lump sum are discounted four percent compounded per annum." The claimant should complete and sign a Form A-111, provided by the carrier. A claim 170/Arkansas Lawyer/October 1978

should never be settled by a joint petition for an amount that could be received under a lump sum payment, since the carrier should pay extra for the advantage of ending a claim. Only a joint petition and the Statute of limitations end a claim.

tions to repeated and obvious hearsay, particularly regarding claimant's statements about his doctor's diagnosis, and objections to cumulative evidence, are more likely to be upheld. There are occasionally those attorneys who act as though they must seek every objection possible.

If a claimant has been accepted by Social Security to be paid for total disability, the Social Security Administration will deduct, by formula, all payments made by workers' compensation in all categories but that of future medical expenses." There are rare instances in which that is not true if claimant's income at the time of injury was very high. Only in a joint petition can one allocate benefits to future medical expenses. Frequently one half or more of benefits paid in settlement are so allocated. The Social Security Administration has recently been requiring more medical evidence for such allocations, discouraging arbitrary categorizations of money paid.

An employer normally required to have workers' compensation insurance coverage under the Act, but who does not have it, may be guilty of a misdemeanor." No one has ever been charged under those provisions as far as anyone at the Commission knows. 23 The real sanction against an employer's not having workers' compensation insurance coverage is that the employer may be sued in court for damages and is much more vulnerable in that the historically most significant defenses to an employeeemployer action are removed by statute. Those defenses are contributory negligence, negligence of a fellow servant and assumption of risk."

As a rule of thumb, whenever the carrier will not agree to a demand by the other side in a workers' compensation claim, a hearing should be requested. Communication between the parties is encouraged in order to narrow the issures and to help in preparation. Similarly, professional courtesy urges that copies of correspondence with the Commission always be sent to the opposing party. Usually, the claimant is pressing the carrier to act, so the request for hearing comes from the claimant. Hearings are held on questions such as, whether to begin temporary total disability payments, whether to increase the permanent partial disability rating to the body as a whole, particularly as it would apply under a loss-of-wageearning-ability argument, whether to extend temporary total disability payments beyond the date on which the carrier stopped them and whether to allow a change of physicians. Incidentally, most change of physicians petitions are granted, unless the change is clearly inappropiate.

Most attorneys who appear before the Commission are aware that formal rules of evidence are avoided in Commission hearings." The only value of most objections is to point out qualifications in the value and relevance of the cited evidence. Objec-

Anyone representing workers' compensation claimants in Arkansas should be aware of several Akansas Supreme Court Opinions. The most basic opinion in local practice is Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961) in which the court stated that medical evidence plus loss of wage-earning capacity must be considered in determining disability to the body as a whole. It is fully explored in Robert R. Wright's 1964 law review article."

To show loss of wage-earning capacity, the claimant should be questioned on direct examination about his age, education, training and experience. The claimant should relate those and other factors to his employability as he understands it.

Expert proof may include reports from rehabilitation or employment counselors, state or private. In Arkansas clinical psychologists qualified in vocational counseling are extremely rare. Other psychologists, particularly those who have prepared report for the Bureau of Hearings and Appeals for Social Security determination, can provide valuable evidence.

The Commission uses its own publication in most of its citations. The Commission publishes a 103 page pamphlet, revised periodically, containing the text of the statute indexed,

plus the Rules of the Commission.

The latest revision was published October 1, 1977 and has the changes made up to then. Copies are available from the agency upon request.

The treatise used most often in workers' compensation for Arkansas is Larson's Workmen's Compensation." There is an extensive multivolume set. The Administrative Law Judge usually uses the desk ed~ion, especially since ~ is easier to keep current. In the library at the Commission offices there are bound volumes of Administrative Law Judge (Referee) and Full Commission Opinions compiled and published by the Commission. The most recent opinions are Full Commission Opinions in loose leaf form. The most valuable source for research is the Desk Book to Streepey's Digest, and the yearly Annotation to Streepey's New Digest of the Decisions of the Arkansas Workers' Compensation Commission. As of this writing, the latest year in digest form is 1973. The digest refers by volume and page number to bound volumes of the opinions. The opinion volumes are current to within three months.

Cases in which Supreme Court Opinions are significant in workers' compensation practice in Arkansas include the following, after which is noted the general rule from each opinion.

Caldwell v. Vestal, 237 Ark. 142, 371 S.w. 2d 836 (1963) (Change of physicians under Rule 21 of the Commission. Notes instances when strict requirements may be avoided.)

Wilson and Company v. Christman, 244 Ark. 132,424 S. W. 2d 863 (1968) (Further clarified Glass and comments on quantum of evidence constituting "substantial evidence.")

entitle one to additional benefits because of the unusual severity of the injury.)

McDaniel v. Hilyard Drilling Co., 233 Ark. 142,343 S. W. 2d 416 (1961) (The respondent cannot restrict his liability to the disability caused by the injury alone in an instance in which the injury aggravates a pre-existing condition. The respondent's liability includes that from the injury and that resulting from the latent, now manifested, physical disability.)

Ray v. Shellnut Nursing Home, 246 Ark. 575, 439 S.w. 2d 41 (1969) (Discusses substantial evidence necessary to support a finding of disability beyond the anatomical disability.)

Harber v. Shows, 262 Ark. 161, 553 S.w. 2d 282, (1977) (Only violations of official regulations of Arkansas are violations of safety regulations under Section 10(d) of the Act (Ark. Stat. Ann. Section 81-1310 (d).

Violations of Occupational Safety and Health Act regulations do not apply.)

Hoerner-Waldorf v. Alford, 255 Ark. 431, 500 S.W. 2d 758 (1973); Rebsamen West, Inc. v. Bailey, 239 Ark. 1100,396 S.W. 2d 822 (1965) (It is not necessary that an unusual event precipitate a heart attack for it to be compensable if there is other evidence connecting it with the job.

Hoerner goes further than Rebsamen.)

Finally, if an attorney has a question about Arkansas Workers' Compensation, he may telephone the Executive Secretary of the Commission.

Jobe v. Capitol Products Corp.

230 Ark. 1, 320 S.w. 2d 634 (1959).

(The extraordinary severity of a particular hernia injury, being a double hernia in the instant claim, does not

5.

ARK. STAT. ANN. SECTION 81-1340 (SUPP. 1973).

6.

42 U.S.C. Section 423 (d) (1) (A).

7.

ARK. STAT. ANN. SECTION 81-1320 (a) (SUPP. 1973).

8.

ARK. STAT. ANN. SECTION 81-1319 (b) (SUPP. 1973).

9.

ARK. STAT. ANN. SECTION 81-1332 (SUPP. 1973).

10.

RULE 14 OF THE ARKANSAS WORKERS' COMPENSATION COMMISSION.

11.

ARK. STAT. ANN. SECTION 81-1323 (c).

12.

CAL LAB. CODE ANN. SECTION 4903 (a) (West, 1964).

13.

RULE 10 OF THE ARKANSAS WORKERS' COMPENSATION COMMISSION.

14.

RULE 19 OF THE ARKANSAS WORKERS' COMPENSATION COMMISSION. (Modified, August 1, 1975).

15.

ARK. STAT. ANN. SECTION 81-1319 (1) (SUPP. 1973).

16.

RULE 19 OF THE ARKANSAS WORKERS' COMPENSATION COMMISSION (Modified, August 1, 1975).

17.

ARK. STAT. ANN. SECTION 81-1319 (1) (SUPP. 1973).

18.

Glass v. Edens, 233 Ark. 786, 346 S. W. 2d, 865 (1961).

19.

ARK. STAT. ANN. SECTION 81-1319 (k).

20.

42 U.S.C. 424a; U.S. DEPT. OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY HANDBOOK Section 504, at 96 (Feb., 1974): "The amount of the reduction ls the amount by whk;h the total social secunty benefits plus the workmen's compensation exceeds the higher of two limits: 80% of the average current earnings, Of the family's total social security benefits. The combined payments after the reduction will thus never be less than the total social security benefits were before the reductton."

21.

ARK. STAT. ANN. SECTION 81-1327.

22.

ARK. STAT. ANN. SECTION 81-1304, 81-1339.

23.

Conversation with member of WoOters' Compensation Commission, John Cowne. Jr., Secretary of the Arkansas

FOOTNOTES FOR ARTICLE 1.

Harkleroad v. Cottor, 248 Ark. 810, 454 S.w. 2d (1970) (Reiterates the demand for extremely strict adherence to all five requirrnents for a valid hernia claim under Ark. Stat.

Ann. Section 81-1313 (e)).

penslllon, (Desk Ed. 1974). Section 1.10

2.

Biennial reports of Arkansas Workers' Compensation Commission, July 1, 1968 to July 30, 1970, July 1, 1970 to June 30, 1972, July 1, 1972 through June 30, 1974.

Chief Justice Burger Proposes First Steps Towsrd Cortlftcsllon of Trlsl Advocscy Speclstlsts, 60 A.B.A.J. 171, 172 (1974): Recognnlon snd Regulstlon for Specialization In Arkansas, 10 Ark. Lawyer 29 (Jan" 1976)

3.

ARK. STAT. ANN. SECTION 81-1304 (SUPP. 1973).

4.

LARSON, Larson'. Workmen's Com-

Workmen's Compensation Commission

9路15路54 to 12路5-74; Commissioner of Arkansas Workers' Compensation mission, 12-6-74 to present.

Com-

24.

ARK. STAT. ANN. SECTION 81-1304.

25.

Wright. Compensation 10r Loss of Earning Capacity, 18 Ark. L Rev. 269 (1964).

26.

LARSON, supra note 4.

27.

ARK.STAT.ANN.SECTION81-1319m路

"

October 1978/Arkansas Lawyer/171

~

----

1111

JURIS DICTUM

by C. R. Huie Executive Secretary, Judicial Department

On Sunday, March 19, 19781, along with Speaker ofthe House Jim Shaver and Circuit Judge Randall Williams, Chairman of the Advisory Committee of the State Crime Commission were fortunate to be in Williamsburg, Virginia attending the dedication ofthe new headquarters building of the National Center for State Courts. In the next issue of the Arkansas Lawyer I will discuss this conference more in depth but for this issue I will confine the contents of this column to a condensed version of the splendid address delivered by the Honorable Griffin B. Bell, Attorney General of the United States at the dinner in the Virginia Room of the Conference Center the first evening of the dedication ceremonies.

Excerpts from Attorney General Bell's address follow:

"I genuinely feel the importance of this Conference in which we are met. Earlier today we witnessed the dedication of a permanent home for the National Center for State Courts. That organization did not exist seven years ago.

The National Center was created as a direct result of the National Conference on the Judiciary held here seven years ago, and in its short tife has filled an important and unique role. As a result of the Center's work, there has been more communication and cooperation among the nation's state court systems than ever before in our history.

The cohesion tastered by the National Center has greatly benefitted the state judiciaries and as a result all of the people who are served by them.

"As many of you know, I have long been concerned about the administration of justice. I spent many years on the federal bench and I know only too well that the efficiency and the effectiveness of the courts is intimately linked to the enforcement of substantive legal rights and obligations. I am convinced, as never before, that we must work together - across federal/state lines - to pursue both the immediate and the long-range solutions to the difficulties which continue to afflict the American judicial systems.

denied. If a person who has been illegally harmed by another must wait a year or two in order to get any kind of relief, as is the case in many places today, that person does not have effective access to justice.

"Justice that is too expensive is also justice denied.

Where the cost of resolving the dispute is more than the amount of money involved, there is no effective access to justice for either person. And where legal rights and obligations not involving money can be determined only at great expense, justice may be severely burdened.

"It is a sad fact that today's delay and expense are in many of our courts, both state and federal, eating away at the essence of justice, "Although considerable progress has been made in recent years, the problems continue to mount. The state and federal courts share problems of rising litigation costs, delay, congestion, the continued use of outmoded and inefficient procedures, and insufficient personnel and support services, "One thing we know -the courts of the nation must be strengthened, improved, and where necessary, expanded.

Congress will shortly enact a bill that will increase the number of federal judges by almost thirty percent. And while that will provide the federal system with much needed additional resources, we have reached a time where we simply must recognize that more of the same will not resolve the situation we face. More judges, more courthouses, more court administrators and law clerks may indeed be required but, even so, we will not be able to keep up with the increasing needs of our people by simply expanding our traditional tools. Our population continues to grow in size, diversity, and activity. Government continues to expand its involvement into new fields. This increasing complexity in our society makes increased disputes almost inevitable. It is fundamental to our system that these disputes be resolved under law and that they be resolved peacefully, intelligently, and fairly.

"There can be no equal justice under law unless all of our people have access to justice. We must find means of settling legal disputes which are convenient, prompt, effective, and available at reasonable cost. It does not matter how fair our laws may be, if access to their enforcement is denied or unavailable.

"In all of this, what is the role of the federal government?

Where does it fit in that "Blueprint for the Future" of the state courts?

"We have long known that justice delayed is justice

"I suggest that there are two interrelated roles for the

172/Arkansas Lawyer/October 1978

federal government: it can exercise leadership in developing a national policy on justice and it can act as a catalyst for innovation, change, and improvement in the nation's judicial systems at all levels. As Attorney General, I am committed to do all that I can to see that the federal government performs these roles. The President shares that view, and I believe that Congress does also. Major steps to that end have already been taken, and more will be taken.

"Many of you are now aware of the creation within the Department of Justice of a new Office for Improvements in the Administration of Justice. The creation of this office was one of my first acts as Attorney General. For the first time in our history, the Executive Branch of the federal government has committed its resources to the continuous, systematic support of the nation's courts. Through this Office we are devising changes, reforms, and innovations.

Many of these concern primarily the federal justice system; but many of them are directly or indirectly beneficial to state justice. This office will assist the Attorney General and the President in developing national policies on justice.

"Financing the basic operating expenses of the state judiciaries is the responsibility of the state governments.

The federal government should not and has not undertaken to do that. What the federal government can appropriately do - and indeed has been doing for several years - is to provide financing for specific projects designed to create change or improvement in the state court systems.

Funding for those purposes has often not been provioed by hard-pressed state legislatures. The result has too often been that the state courts, which can be ideal laboratories for process experimentation, have been left without the means of adopting new systems and procedures which are crucial to their ability to cope with mounting caseloads and new conditions. If the federal government provides the funding for a surveyor pilot project, then the state court system has the information necessary to demonstrate to its legislature the need for and value of new programs and improVed processes. In many instances, when such a showing has been made, state legislatures have responded by providing permanent funding for the new arrangements. The federal role is thus in part a cataylst for improvement.

"Federal funding has been flowing to the state courts in ever increasing amounts over the last seven years. At the time of the last conference here, these funds were little more than a trickle. They have grown now to many millions of dollars annually. The National Center for State Courts has from its very beginning been the recipient of substantial federal financial support. All of these funds have, of course, been provided by Congressional appropriations, and they have grown in amount as Congress has grown in awareness of the role which the federal government can properly perform in assisting the state courts. We in this Administration are committed to this role and will offer continued support for federal funding of this sort.

support of the state justice systems. The President and I are committed to this objective.

"We will continue our efforts to make the federal courts more accessible and effective for the cases those courts are designed to handle. But it is primarily to the state courts that the American people look for justice in their everyday affairs. It is my belief that we all must work together to improve the system at all levels. That is because a failure to provide effective justice anywhere in the country is a matter of national concern. While the Constitution draws a line between federal and state authority, as the President said in his letter today, justice is indivisible. The federal government, as well as the state governments, has an obligation on behalf of all the people to support and improve the courts and other agencies of justice. Without impairing the legitimate independence of the state judiciaries, the federal government has a significant place in their "Blueprint for the Future."

"On the side of the Justice Department building in Washington these words are carved: "Justice is the great interest of man on earth." That is the interest which brings us here together from throughout the fifty states of the Union'''i--

ARKANSAS BAR ASSOCIATlON

Fall Legal Institute Camelot Inn, Little Rock September 14-15, 1978 Quality of Life Seminar Inn of the Ozarks, Eureka Springs November 3-4 Arkansas Federai Tax Institute Arlington Hotel, Hot Springs November 16-17 Midyear Meeting Camelot Inn, Little Rock January 18-20, 1979

"Some details of this reorganization plan remain to be worked out. But whatever the final plan, the federal support for the state justice systems will not be diminished. In fact, a major purpose of the reorganization is to provide a more effective, less costly means of channelling federal funds in October 19l8/Arkansas Lawyer/173

TAX TIPS

Lawyers' Marl

by Paul D. Wllliame

Director, Little Rock Dlllrtct Intarnel R_nua Servlc:e

DIRECTORY FOR TAX PRACTITIONERS A telephone directory, April 1978, has been printed and is available to assist tax practitioners in dealing with personnel of the Little Rock District. If you wish a copy, contact Maeline Hornbeck, Public Affairs Office, I.R.S., 700 West Captiol Avenue, Little Rock, AR 72201 (378-5340).

We are trying to make your job easier in dealing with us and would like to ask your assistance in making our task easier. Most questions, whether about refunds, bills, or adjustments, can be answered by our Taxpayer Service Division. Therefore, we would appreciate it if you would first contact that office. Both telephone numbers, 376-4401 and 800-482-9350, go directly into that area.

On all correspondence sent from the District or Service Center, there will be a person's name and telephone number in the upper right-hand corner.

You should contact that person for further information, changes in appointment, etc., concerning that particular matter. Please remember, on specific taxpayer situations, the Privacy and Disclosure provisions will always apply.

PROBLEM RESOLUTION PROGRAM It's been over a year since the Internal Revenue Service began solving special tax problems through a program called Problem Resolution. This new concept was created to help taxpayers and/or their representatives obtain action on problems they are not able to settle through normal IRS channels.

This program commands high visibility from my office. Problems referred to the PRP Specialist are personally reviewed by me on a continuing basis.

The specialist works directly under my supervision and has the authority to cross divisional lines and cut whatever "red tape" that is necessary to reach a final resolution to your problem.

Although the difficulties handled by PRP varied, most had one thing in common - they were questions that normally should have been handled through regular channels, but for some reason these channels had broken down. The breakdowns weren't frequent, considering the number of contacts IRS personnel make with practitioners and taxpayers every year. But they were frustrating to the people who were tangled up in one of the procedural failures.

Generally, the reasons for the breakdowns are pretty basic. There are over 375 people working for the Internal Revenue Service in the Little Rock District. Most of these persons deai directly with taxpayers - answering questions, helping with tax returns, auditing their returns, and collecting delinquent taxes. continued on page 204 174/Arkansas Lawyer/October 1978

$5 minimum

20c per word

BOOKS FOR SALE "Current Legal Forms with Tax Analysis" $150.00, 501-273-3365, Bentonville.

AM JUR 2ND WITH CURRENT SUPPLEMENTS Robert Edwards P.O. Box 42 Searcy, AR 72143 268-8661 ALA. Federal-Qnly few volumes even openedCurrent-Reasonable. Mayes & Murre\:" 2248 First National Bldg., Little Rock, AR 72201.

(501) 375-9952 EQUIPMENT FOR SALE Bogen Intercom System complete with power unit and seven stations. Price: $300.00. Available after September 1, 1978. Contact Branch & Thompson, Box 153, ParagOUld, Arkansas, 239-9581.

Savin 220 copier, rebuilt, good condition. $750.00.

Yates, McKenzie & Yates; McKenzie Jail Building; Third & River Streets; Ozark, Arkansas.

(501) 667-2151 1 IBM 211 Dictating and 2 transcribing units $1 00. ea. & 1 IBM 271 Executary dictator unit $150.

Mitchell Moore, Box 567, Osceola, AR 72370.

Phone 563-5252.

WANTED TO BUY Complete set of Arkansas Digest. Charles D. Matthews, P.O. Box 1276, Little Rock, Arkansas 72203, Phone (501) 372-0399.

JOB VACANCY EAST TEXAS LEGAL SERVICES: Seeking Staff Attorneys for new Texarkana office. Previous Legal Service experience or recent graduate with a firm interest in poverty law. Salary $13,000 - $20,000 pi us fringe. Also seeking experienced Paralegals for Texarkana office. Salary $8,500 - $13,000 plus fringe. Six month probationary period and minimum three-year commitment required; send resumes and writing samples: P.O. Box 1069, Nacogdoches, TX 75061. Equal Opportunity Employer: Women and Minorities are Urged to Apply.

Arkansas Bar Association 1978-1979 EXECUTIVE COUNCIL President (523-6751 ) President-Elect (534-5221) Immediate Past President (521-5510)

Wayne Boyce 209 Walnut 51.

Newport, AR 72112 E. Harley Cox, Jr. P.O. Box 8509 Pine Bluff, AR 71611 Walter R. Niblock P.O. Box 818 Fayetteville, AR 72701

Secretary-Treasurer (376-2011 )

James A. Buttry 2000 First National Bldg.

Little Rock, AR 72201 Roy T. (Rick) Beard P.O. Box 7808 Pine Bluff, AR 71611 Phillip Carroll 720 West 3rd Little Rock, AR 72201

Chairman, YLS (534-5432) Chairman, Executive Council (375-9131)

NORTHWESTERN STATE BAR DISTRICT 1979 Don M. Schnlpper Hot Springs Robert L. Jones, III 1980 Fort Smith 1981 David R. Malone Fayetteville

SOUTHERN STATE BAR DISTRICT Herman L. Hamilton 1979 John F. StrOUd, Jr. 1980 Dennis Shackleford 1981

Hamburg Texarkana EI Dorado

NORTHEASTERN STATE BAR DISTRICT LeRoy Froman 1979 Tom B. Smith 1980 Robert G. Serio 1981

CENTRAL STATE BAR DISTRICT Charles Carpenter 1979 Christopher Barrier 1980 Webster L. Hubbell 1981

N. Little Rock Little Rock Little Rock

Searcy Wynne Clarendon

LIAISON NON-VOTING MEMBERS Chairman, Legal Education Committee ....â&#x20AC;˘...........Herman L. Hamilton P.O. Box 71 Hamburg, AR 71646 Chairman, Arkansas Bar Foundtalon Marvln L. Kieffer McAdams Trust Bldg.

Jonesboro, AR 72401 Executive Director C. E. Ranslck 400 West Markham Little Rock, AR 72201

Delegate to American Bar Association Arkansas JUdicial Representative

H. H. Friday 2000 First National Little Rock, AR 72201 Judge Warren O. Kimbrough 2600 South 46h Street Fort Smith, AR 72901

STAFF Executive Director Administrative Assistant Membership Secretary-Cashier 176/Arkansas Lawyer/October 1978

C. E. Ranslck Judith Gray Barbara Tarkington

Arkansas Bar Association 400 West Markham Llt1le Rock, Arkansas 72201 (501-375-4605)

1978-1979 HOUSE OF DELEGATES PRESIDENT (523-6751) PRESIDENT-ELECT (534-5221) IMMEDIATE PAST PRESIDENT (521-5510)

Wayne Boyce 209 Walnut SI. Newport, AR 72112 E. Harley Cox, Jr. P.O. Box 8509 Pine Bluff, AR 71611 Waller R. Niblock P.O. Box 818 Fayelleville, AR 72701

SECRETARY-TREASURER (376-2011) CHAIRMAN, YLS (534-5432) CHAIRMAN, EXECUTIVE COUNCIL (375-9131 )

James A. Buttry 2000 First National Bldg.

Little Rock, AR 72201 Rick Beard P.O. Box 7808 Pine Bluff, AR 71611 Phillip Carroll 720 West 3rd Lillie Rock. AR 72201

NON-VOTING MEMBERS Past Presidents

VOTING MEMBERS District No.1 J. L. Hendren Box 589 Bentonville, AR Term Expires 1980 District No.2 Thomas D. Ledbetter ....0. Box 637 Harrison, AR 72601 Term Expires 1981 District No.3 Donald S. Goodner Box 567 Waldron, AR Term Expires 1979 District No. 4 James K. Young 306 S. Arkansas Russellville, AR Term Expires 1980 District No.5 Charles A. Yeargen Box 214 Glenwood, AR Term Expires 1980 District No.6 James H. Pilkinton, Sr. P.O. Box 583 Hope, AR 71801 Term Expires 1981 Dtstrict No.7 Oliver Clegg P.O. Drawer A Magnolia, AR 71753 Term Expires 1981 District No.8 Clint Huey 101 South Myrlle Warren, AR Term Expires 1979

District No.9 R. Bynum Gibson, Jr. Box 303 Dermott, AR Term Expires 1980 District No.1 0 David Mac Glover 130 West Second Malvern, AR Term Expires 1980 District No. 11 William Reed P.O. Box 327 England, AR 72046 Term Expires 1981 District No. 12 Leroy Froman 103 East Arch Searcy, AR Term Expires 1979 District No. 13 John M. Pittman Box "J" West Helena, AR Term Expires 1980 District No. 14 Tom B. Smith Box 592 Wynne, AR Term Expires 1980 District No. 15 C. B. Nance Box 1190 West Memphis, AR Term Expires 1981 District No. 16 John B. Mayes P.O. Box 406 Blytheville, AR 72315 Term Expires 1981

District No. 17 Oliver E. Cox Box 436 Coming, AR Term Expires 1979 District No. 18 James F. Sloan Box 309 Walnut Ridge, AR Term Expires 1980 District No. 19 John C. Gregg BOx 2496 Batesville, AR Term Expires 1979 District No. 20 Frank Huckaba Box 370 Mountain Home, AR Term Expires 1980 District No. 21 George F. Hartje 1304 Oak SI. Conway, AR Term Expires 1979 District No. 22 John F. Stoud, Jr. 6 State Line Plaza Texarkana, AR Term Expires 1979 District No. 22 Leroy Autrey Box 960 Texarkana, AR Term Expires 1980 District No. 23 Richard L. Slagle 503 First National Bank Hot Springs, AR Term Expires 1979

District No. 23 Regina Whitaker Laidler 116 Trivista Right Hot Springs, AR Term Expires 1980 District No. 24 Norwood Phillips 100 East Church EI Dorado, AR 71730 Term Expires 1981 District No. 24 Floyd M. Thomas, Jr. 423 North Washington EI Dorado, AR Term Expires 1980 District No. 25 William C. Bridgforth P.O. Box 8509 Pine Bluff, AR Term Expires 1981 District No. 25 Jack A. McNulty Box 7808 Pine Bluff, AR Term Expires 1980 District No. 26 Tommy Womack P.O. Box 1245 Jonesboro, AR 72401 Term Expires 1981 District No. 26 Bobby McDaniel 400 S. Main Jonesboro, AR Term Expires 1979 District No. 27 Boyce Davis 115 South Main Lincoln, AR 72744 Term Expires 1981 October 19781Arkansas Lawyerl1n

District No. 27 Charles N. Williams t12 Southeast Avenue Fayetteville, AR Term Expires 1980 District No. 27 David R. Malone Univ. of Ark., Law School Fayetteville, AR Term Expires 1980 District No. 28 S. Walton Maurras P.O. Box 43 Fort Smith, AR 72901 Term Expires 1981 District No. 28 Bill Thompson P.O. Box 818 Fort Smith, AR 72901 Term Expires 1981 District No. 28 Robert L. Jones, III P.O. Box 2023 Fort Smith. AR Term Expires 1979 District No. 28 Robert R. Cloar 3017 Free Ferry Fort Smith, AR Term Expires 1980

District No. 29 Omar F. Greene 210 State S1.

Little Rock, AR Term Expires 1979 District No. 29 John Wesley Hall, Jr. 12920 Southridge Little Rock, AR Term Expires 1979 District No. 29 Webster L. Hubbell 720 West Third Little Rock, AR 72201 Term Expires 1979 District No. 29 Glenn W. Jones, Jr. 1500 Union National Little Rock, AR 72201 Term Expires 1979 District No. 29 John T. Lavey 721 Pyramid Life Bldg.

Little Rock, AR Term Expires 1979

District No. 29 Samuel A. Perroni U.S. Attorney's Off. Little Rock, AR Term Expires 1979 District No. 29 Charles L. Carpenter 1405 Main S1.

N. Little Rock, AR Term Expires 19~0 District No. 29 Donald T. Jack, Jr. 1550 Tower Building Little Rock, AR Term Expires 1980 District No. 29 Russ Meeks 1500 Union National Little Rock, AR Term Expires 1980 District No. 29 Frederick S. Ursery 2000 First National Little Rock, AR 72201 Temn Expires 1980

LAW STUDENT MEMBER UALR • LAW SCHOOL Bob Trammell

LAW STUDENT MEMBER UNIVERSITY OF ARKANSAS LAW SCHOOL Bob Lambert

District No. 29 Gus B. Waiton, Jr. 2200 Worthen Bank Little Rock, AR Term Expires 1980 District No. 29 Thomas M. Carpenter 807 W. Third Little Rock, AR 72201 Term Expires 1981 District No. 29 Robert R. Wright 400 West Markham Little Rock, AR 72201 Term Expires 1981 District No. 29 Robert D. Ross 300 Spring Building Little Rock, AR 72201 Term Expires 1981 District No, 29 George N. Plastiras P.O. Box 3363 Little Rock, AR 72203 Term Expires 1981 District No. 29 Robert M. Cearley, Jr. 1014 West Third Little Rock, AR 72201 Term Expires 1981

PAST PRESIDENTS' COMMITTEE

James B. Sharp Joe C. Barrett A. F. House Terrell Marshall J. L. Shaver John A. Fogleman Willis B. Smith W. S. Mitchell Oscar Fendler Louis L. Ramsay, Jr. Bruce T. Bullion Maurice Cathey

Chairman Jonesboro Little Rock Little Rock Wynne West Memphis Texarkana Littie Rock Blytheville Pine Bluff Little Rock Paragould

1943-44 1948-49 1951-52 1953-54 1958-59 1959-60 1960-61 1962-63 1963-64 1964-65 1966-67

William S. Arnold J. Gaston Williamson Robert L. Jones, Jr. J. C. Deacon Paul B. Young Henry Woods James West James Sharp Robert C. Compton Herschel H. Friday Walter R. Niblock

Crossett Little Rock Fort Smith Jonesboro Pine Bluff Little Rock Fort Smith Brinkley EI Dorado Little Rock Fayetteville

1967-68 1968-69 1969-70 1970-71 1971-72 1972·73 1973-74 1974-75 1975-76 1976-77 1977-78

SECTION CHAIRMEN Natural Resources Law .......•.......Hayes C. McClerkin Section 6 State Line Plaza Taxarkana, AR 75502 "., Roy T, Beard, III Young Lawyers section P.O. Box 7808 Pine Bluff, AR 71611 Law Student Section, , , •.••••......•.•.James R. Holbein 1135 Waneeton Fayetteville, AR 72701 Family Law Section ....•................Ben D. Rowland 604 - Three Hundred Spring Little Rock, AR 72201

Criminal Law Section

Wm. R. Simpson, Jr. 601 West Third Street Little Rock, AR 72201 Savings & Loan Section Edward J. Cunningham 650 South Street Mountain Home, AR 72653 Taxation, Trust & Estate .•.••• , ......•.Richard F. Hatfield Planning Section P.O. Box 1170 Searcy, AR 72143

STANDING COMMITTEE CHAIRMEN H. David Blair Edward B. Dillon, Jr.

Jurisprudence and Law Reform Committee Professional Ethics & Grievances Committee

178/Arkansas Lawyer/October 1978

G. Alan Wooten Herman L. Hamilton, Jr. James R. Rhodes, III

Legal Aid Committee Legal Education Committee legislation Committee

SPECIAL COMMITTEE CHAIRMEN J. C. Deacon Annual Meeting Committee Peter G. Kumpe .•.•...................Anti·Trust & Trade Regulations Committee Assoclation Affairs Committee Charles L. Carpenter John L. Johnson .........•.....•....Audlting Committee Bobby McDaniel Automobile "No Fault" Insurance Committee Garvin Fitton .....•..............Banklng Law Committee Dennis Shackleford Camera In The Courtroom Committee Jerry Lee Cavaneau Civil Procedures Committee Constitutional Reform Committee George E. Campbell Milton Copeland Consumer Law Committee Credltors' Rights Committee Allen W. Bird, II Mike Bearden Desk Book Committee Lewis E. Epley, Jr....•................Economics Of Law Practice Committee W. Christopher Barrier ....•Envlronmental Law Committee Emlnent Domain Code Committee Robert R. Wright, III E. Charles Eichenbaum Federal Legislation & Procedures Committee Eldon Coffman Group Insurance Committee Boyce Love House Committee .International Law Committee Ralph M. Sloan, Jr Judlclal Council Charles L. Carpenter Liaison Committee Albert Graves Judlclal Nominations Committee

Winslow Drummond Judlcial Evaluation Committee Labor Law Committee Philip K. Lyon Herschel H. Friday ..........•.....Law SChool Committee Rudy Moore, Jr., Co-Chairman .•.............Law Student Liaison Committee Law Student Samuel A. Perroni, Co-Chairman Liaison Committee Eugene Mazzanti Lawyer Referral Service Committee Odell Pollard Malpractlce Claims Control Committee Maritime Law Committee Gordon S. Rather, Jr E. Harley Cox, Jr Membershlp Committee Memorlals Committee Fred O. Roberson, Jr Pre-Law Advisors Committee Jay W. Dickey, Jr Prepald Legal Services Committee Truman E. Yancey Judge Thomas F. Butt ••......... Probate Law Committee Professlonal Utilization Committee James D. Storey Publlc Information Committee Samuel C. Highsmith E. Harley Cox, Jr Real Estate Law Committee Speclallzation And William Russ Meeks, Jr Advertising Committee .state & Federal Walter W. Davidson Securities Committee Unlform Laws Committee William S. Arnold Bud Whetstone Workers' Compensation Committee Youth Education For Herbert C. Rule Citizenship Committee

Arkansas Bar Foundation 1978-79 OFFICERS Chairman (932-1120) Vice Chairman (376-2011 )

Marvin L. Kieffer McAdams Trust Building Jonesboro, AR 72401 Boyce Love 2000 First National Bldg.

Little Rock, AR 72201 Executive Secretary (375-4605)

Sidney H. McCollum P.O. Box 447 Bentonville, AR 72712 Herman Hamilton P.O. Box 71 Hamburg, AR 71646

Treasurer

(273-2417) Secretary (853-5461 ) Colonel C. E. Ranslck 400 West Markham St. Little Rock, AR 72201

DIRECTORS Sidney H. McCollum Douglas O. Smith Robert Hays Williams LeRoy Autrey Marvin L. Kieffer Virginia Tackett Ted N. Drake

Awards Court Standards Finance House Investment Advisory Lease Renegotiation

1979 1979 1979 1979 1979 1979 1979 Ex·Officlo:

Boyce Love 1980 Little Rock, AR Bentonville, AR Springdale, AR James D. Cypert 1980 Fort Sm~h. AR Henman Haminon Hamburg, AR 1980 Russellville, AR W. Christopher Barrier Little Rock, AR 1980 Texarkana, AR Ed McCorkle Arkadelphia, AR 1980 Jonesboro, AR Jonesboro, AR Randy Ishmael 1980 Little Rock, AR C. B. Nance, Jr. West Memphis, AR 1980 Pine BluIf, AR Wayne Boyce John P. Gill Past-Chairman President Arkansas Bar Foundation Arkansas Bar Association

COMMITTEE CHAIRMEN Marvin L. Kieffer John P. Gill John L. Johnson Boyce Love James B. Sharp J. Gaston Williamson

Oral History Public Education Scholarships & Memorials Selection of Fellows Trust Writing Awards

George F. Hartje, Jr. W. Christopher Barrier Elizabeth Brooks John A. Davis, III Henry Woods James D. Cypert

October 1978/Arkansas Lawyer/179

LOCAL BAR ASSOCIATIONS ARKANSAS ASSOCIATION OF WOMEN LAWYERS President Elizabeth Brooks Vice-President Susan Weber Treasurer ..................••...............Jackie Wright Recording Secretary Regina Laidler Corresponding Secretary Mary Burt Nash ARKANSAS COUNTY BAR ASSOCIATION President F. Russell Rogers Vice-President Malcolm Smith Secretary Treasurer Virgil Moncrief BAXTER MARION COUNTY BAR ASSOCIATION President Ed Cunningham Vice-President.

James W. Atkins Secretary Rick Spencer Treasurer Norman Wilburn BENTON COUNTY BAR ASSOCIATION President John Elrod Vice-President Douglas L. Wilson Secretary Jerry B. Dossey BLYTHEVILLE BAR ASSOCIATION President BiII E. Ross Vice-President John B. Mayes Secretary-Treasurer Charles "Chuck" Banks BOONE-NEWTON BAR ASSOCIATION President Ralph Lowe Secretary-Treasurer J. Scott Covington BRADLEY COUNTY BAR ASSOCIATION President Robert C. VilI~ow Secretary-Treasurer Robert E. Gamer CARROLL-MADISON COUNTY BAR ASSOCIATION President Stevan Vowell Secretary-Treasurer Kent Coxsey CHICOT COUNTY BAR ASSOCIATION President W. K. Grubbs, Sr. CLARK COUNTY BAR ASSOCIATION President Roger B. Harrod Secretary-Treasurer Wilson Busby CLEBURNE COUNTY BAR ASSOCIATION President C. E. Blackbum Vice-President Stephen Choate Secretary Roger W. Giles Treasurer Earl N. Olmstead COLUMBIA COUNTY BAR ASSOCIATION President Bill Jennings Secretary-Treasurer DeWitt T. Black CONWAY COUNTY BAR ASSOCIATION President Allen Gordon Vice-President Howard Yates Secretary-Treasurer Charles H. Eddy CRAIGHEAD COUNTY BAR ASSOCIATION President Warren Dupwe Vice-President W. B. Howard Secretary-Treasurer Richard B. Jarrett CRmENDEN COUNTY BAR ASSOCIATION President Dana Davis Vice-President Kent Rubens Secretary-Treasurer Paul Rainey CRAWFORD COUNTY BAR ASSOCIATION President.

Robert Marquette Secretary-Treasurer Steven Peer CROSS COUNTY BAR ASSOCIATION President John N. Kellough Vice-President DeLoss McKnight Secretary-Treasurer J. L. Shaver, Jr. lBO/Arkansas Lawyer/October 1978

EIGHTH CHANCERY BAR ASSOCIATION President Wayne Boyce FRANKLIN COUNTY BAR ASSOCIATION President Joe Ramos Vice-President Ted Yates Secretary-Treasurer Jack King FAULKNER COUNTY BAR ASSOCIATION President George F. Hartje, Jr. Vice-President Andre E. McNeil Secretary-Treasurer William Clay Brazil GARLAND COUNTY BAR ASSOCIATION President Don M. Schnipper Vice-President R. Keith Arman Secretary-Treasurer Don Pullen GRANT COUNTY BAR ASSOCIATION President John W. Cole Vice-President Joseph W. Swaty Secretary-Treasurer Harold King GREENE-CLAY COUNTY BAR ASSOCIATION President John Lingle Vice-President H. T. Moore Secretary-Treasurer David R. Goodson HOT SPRING COUNTY BAR ASSOCIATION President Lawson E. Glover Secretary-Treasurer G. Chris Walthall INDEPENDENCE COUNTY BAR ASSOCIATION President H. David Blair Vice-President John N. Harkey Secretary-Treasurer Bernice McSpadden JACKSON COUNTY BAR ASSOCIATION President B. Richard Allen Vice-President Robert B. Lamb Secretary-Treasurer Max O. Bowie JEFFERSON COUNTY BAR ASSOCIATION President Wm. C. Bridgforth Vice-President Eugene Harris Secretary-Treasurer John Rush LAWRENCE·RANDOLPH COUNTY BAR ASSOCIATION President Harry L. Ponder Vice-President Harrell Simpson, Jr. Secretary-Treasurer Tom L. Hilburn LEE COUNTY BAR ASSOCIATION President W. H. Daggett Vice-President Carrold E. Ray LONOKE COUNTY BAR ASSOCIATION President Howard L. Martin Vice-President Navada Roberts Secretary-Treasurer William Reed NEVADA COUNTY BAR ASSOCIATION President James H. McKenzie Secretary-Treasurer Joe M. Fore NORTH PULASKI COUNTY BAR ASSOCIATION President Ben Rice Vice-President James May, III Secretary Paul Fray Ken Suggs Treasurer NORTH CENTRAL BAR ASSOCIATION President C. Dwayne Plumlee Vice-President .L. Gray Dellinger Secretary-Treasurer AI F. Thompson MONROE COUNTY BAR ASSOCIATION President Raymond Abramson Secretary Steven Elledge Treasurer .......••.••••....••••............John McKnight

,

NORTHEAST ARKANSAS BAR ASSOCIATION President Joe C. Boone Vice-President C. B. Nance, Jr. Secretary-Treasurer Bill Ross OSCEOLA BAR ASSOCIATION President Mike Gibson Vice-President Claude E. Lynch Secretary-Treasurer Ralph Wilson, Jr. OUACHITA COUNTY BAR ASSOCIATION President.

John E. Gaughan, III Vice-President Julian Streett Secretary-Treasurer Eugene Bramblett PHILLIPS COUNTY BAR ASSOCIATION President.

John M. Pittman Secretary-Treasurer Jesse Porter PIKE COUNTY BAR ASSOCIATION President Lindell Hile Vice-President Jimmy L. Featherston Secretary-Treasurer Philip M. Clay POINSETT COUNTY BAR ASSOCIATION President John Henry Vice-President Burk Dabney Secretary-Treasurer Mike Everett POLK COUNTY BAR ASSOCIATION President James Stoker Vice-President Jerry W. Looney Secretary-Treasurer David Maddox POPE-YELL COUNTY BAR ASSOCIATION President Dale Finley Vice-President Richard E. Gardner, Jr. Secretary-Treasurer Ms. Ruth Teal PULASKI COUNTY BAR ASSOCIATION President James D. Storey Vice-President.

Milas H. Hale Secretary-Treasurer Gary Barket

ST. FRANCIS COUNTY BAR ASSOCIATION President John D. Bridgforth SALINE COUNTY BAR ASSOCIATION President Bob Garrett Vice-President George Ellis Secretary-Treasurer Richard Madison SEBASTIAN COUNTY BAR ASSOCIATION President BiII Wiggins Vice-President G. Alan Wooten Secretary-Treasurer J. M. Cogbill SOUTHEAST ARKANSAS BAR ASSOCIATION President Sam Bird SOUTHWEST ARKANSAS BAR ASSOCIATON President Phillip Purifoy Vice-President Ed McCorkle Secretary-Treasurer Talbot Feild TEXARKANA BAR ASSOCIATION C. Wayne Dowd President.

Secretary Joe Griffin Treasurer Thomas H. Arnold UNION COUNTY BAR ASSOCIATION President Ronald Griggs Vice-President Jerry James Secretary-Treasurer Floyd Thomas WASHINGTON COUNTY BAR ASSOCIATION Waller B. Cox President Vice-President.

Jerry James Secretary-Treasurer Francis Rudko WHITE COUNTY BAR ASSOCIATION President Paul Petty Vice-President William P. Mills Secretary-Treasurer Clarence Shoffner WOODRUFF COUNTY BAR ASSOCIATION President James F. Daugherty Vice-President T. B. Fitzhugh Secretary-Treasurer .............â&#x20AC;˘..........Joe N. Peacock

TfTUTE OF

L DUCATI BOARD OF DIRECTORS ,

,

Robert K. Walsh, President (371-1071 ) Marvin Kieffer, Secretary-Treasurer (932-1120) Herman L. Ham Ilion (853-5461 ) Roy T. (Rick) Beard, III (534-5532) Milton Copeland (575-5600) Phillip Carroll (375-9131)

UALR Law SChool 400 West Markham Little Rock, AR 72201 McAdams Trust Bldg.

Jonesboro, AR 72401 P.O. Box 71 Hamburg, AR 71646

E. Harley Cox, Jr. (534-5221)

P.O. Box 7808 Pine Bluff, AR 71601 University of Arkansas SChool of Law Fayetteville, AR 72701 720 West Third Little Rock, AR 72201

Boyce Love (376-2011 )

Herschel H. Friday (376-2011 ) Wayne Boyce (523-6751 )

P.O. Box 8509 Pine Bluff, AR 71611 2000 First National Bldg.

Little Rock, AR 72201 209 Walnut SI. Newport, AR 72112 2000 Rrst National Bldg.

Little Rock, AR 72201

C. E. Ranslck (375-4605)

400 West Markham Little Rock, AR 72201

Clalbourne W. Patty, Jr., executive Director (371-2267)

400 West Markham Little Rock, AR 72201 October 1978/Arkansas Lawyer/181

Are \'00 Willing To Pay The Price?

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In view of the growing number of claims and the vast amounts paid in settlement, the time may come when the only practicing attorney will be a well-protected attorney.

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First, it helps to minimize the causes ofliability suits through loss prevention programs. Then, it provides financial protection to help guard you against professional and business liability ,vith a maximum of $100,000 per claim ($300,000 annually) after a deductible.

Think you need more? Supplemental protection of$l,OOO,OOO for business and professional coverage is also available.

(fyou can't afford the price of a lawsuit, it's time to learn more about your Association sponsored Comprehensive Lawyers Professional and Business Liability Plan, including the exclusions, any reductions or limitations and the terms under which the policy may be continued in force. Just send the coupon below to the ddministrator: Rather, Beyer &. Harper.

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Arkansas Bar Association Administrator Rather, Beyer & Harper Suite 362, Prospect Building, 1SOl North University, Little Rock, Arkansas 72207.

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October 1978/Arkansas Lawyer/183

.

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CONTEXT

By W. Christopher Barrier Chairman, Public Education Committee Arkansas Bar Foundation

FULL COURT PRESS During a presidential press conference, the late John F. Kennedy commented to a reporter that government officials and reporters were natural adversaries. From some of President Carter's more recent remarks, it may appear that these old adversaries have in fact joined forces and found a new adversary, the legal profession.

In the case of Press v. Bar...

Whether this is true or not, there seems to be at least some continuing tension and distrust between lawyers and the press. The most profound indication of this attitude was evidenced by the sparse attendance by reporters at the News Media Seminar conducted by the Arkansas Bar Association on May 12-13 of this year. The purpose of the seminar, 'as expressed by Walter Niblock, then President of the Association, was "to present information about the law for working journalists to help them give the public a more clear view of the often complex field of legal news."

The low tum-out may have been attributable to the scheduling, less than three weeks prior to a hotlycontested Democratic primary. However, at least one lawyer involved discovered that at least some editors were unenthusiastic about their reporters attending because they felt that the presentations would necessarily be prolawyer and besides they didn't need a bunch of lawyers telling them how to do their jobs.

In view of this type of attitude on the part of some news people, lawyers may be tempted simply to resolve not to have any1hing to do with reporters. However, this is virtually impossible in many types of cases which attract public interest. Lawyers simply have to expect to deal with reporters in major criminal cases; when representing or appearing before regulatory and administrative agencies; when handling suits with political overtones, such as election contests; and when handling matters involving large amounts of money, well-known figures, scandalous behavior, or combinations thereof. . . .confllcts are inevitable.

There are ways of making the relationship between the bar and the press less painful. However, rather than proceeding by resolving any conflicts, the lawyer has to realize that lawyers and reporters have built-in conflicts which 184/Arkansas Lawyer/October 1978

cannot be resolved. Conflict can be minimized primarily by recognizing the conflicts and dealing with them as openly and graciously as possible.

Advocacy...

Lawyers are hired to advocate a particular position. They are bound to do so even if they might take a different position were they sitting as the judge. Reporters, on the other hand, at least theoretically are in search of objective facts, eschewing value judgments altogether. ...versus information.

Lawyers look on themselves as participants in the judicial process, which they regard as being something larger than themselves, the parties or the press. Reporters also view themselves as part of a loftier process, and as the guardians of the public's right to be well-informed. Their goal is total information, not just one side of the picture.

These goals and values may not always appear to be consistent or compatible. Lawyers are not always quick to recognize (although reporters are) that their purpose is to serve the interests of their client, which interests may appear somewhat narrow to third parties. When a lawyer is representing a public board or commission (or a private board or commission affected with some sort of public interest, such as those of hospitals), reporters have a tendency to consider themselves instruments for effecting public accountability.

Advocacy journalism on the rise.

If lawyers are sometimes reluctant to admit that the practice of their profession involves matters of simple economics at least as often as it involves matters of high principle, reporters are sometimes reluctant to admit how often the goal of total objectivity is compromised. The rise of "advocacy journalism" is not necessarily a bad thing, if it encourages reporters to recognize and deal with their own points of view, rather than pretending to that non-existent objectivity.

As between lawyers and reporters, however, the emphasis on investigative reporting spawned by Watergate and perpetuated by Koreagate inevitably results in more conflicts. And the fact that an increasing number of reporters actually have degrees in journalism has probably re-

suited in a more exa~ed view on the part of the degreeholders of the profession (although this is not necessarily bad either if it also results in a higher degree of professionalism).

Too much alike...

These bui~-in conflicts are also complicated by certain similarities in the personality types of the members of both professions. They are both what would have to be classified as ego-oriented professions. Neither attracts the shy and retiring. Qualities that make a good lawyer-tenacity, drive, boldness, quick-thinking and expressiveness-are also the attributes of a good reporter. Some of the techniques are even the same, such as asking probing questions hoping to get an admission against interest. (I suspect that lawyers are particularly irritated when they are subjected to this type of questioning by reporters because they recognize the technique and its purposes.) ...or not enough Conflicts are spawned not only by differences in objectives and similarities in temperament. They are also aggravated by differences in experience. AI Schay, Chairman of the Bar Association's Public Infonmation Committee and project consultant for the News Media Seminar, has noted that with "the exception of a handful of 'beat' reporters who cover only court news, most reporters don't have the time to develop a thorough working knowledge of this type of

I

"Ladles andlor gentlemen of the press (I.e., news media) .. .speaklng from the attorney~lIent relationship, and against

the procedural context In which we find the within cause... wlth due regard to certain causative factors which ab Initio Interlaced with the legal framework...my response to

your questions (as I understand them) must be an una equivocal "no comment", or put another way..."

coverage." Lawyers tend to be specialists in a particular area of practice. Reporters covering trials, hearings and so forth may not only be unfamiliar with the subject matter being considered but with the entire process. Consequently, they may sometimes ask questions which lawyers regard as positively ignorant. (Unfortunately, all too many lawyers are inclined to let their opinion in this regard show, directly or indirectly.)

Be patient. ..

What is required is that the lawyer be patient in answering such inquiries. He must always be thorough, recognizing that the reporter may know little or nothing about the subject matter involved. On the other hand, he needs to be as non-technical as possible and also avoid trying to argue his case in the media. (In this regard, the lawyer should be familiar with Article 7 of the Code of Professional Responsibility and Article 35 of the Canons of Judicial Ethics, so that he may also carefully explain why he cannot discuss certain matters.)

Generally, however, the better informed the reporter is, the smoother the relationship. In this regard, if a lawyer deals regularly with a particular reporter, he may well want to see that the reporter gets a copy of AI Schay's News Media Handbook, so that the reporter may answer a number of questions on his or her own. ...and realistic.

Finally, it helps to be realistic. Cases should not be tried in the newspapers. Reporters should be universally wellinformed and they should, of course, immediately recognize the merits of your client's position. IneVitably however, not all of these things are going to come to pass. The built-in conflicts simply will not go away. Nonetheless, lawyers do not have to seek to curry favor with the press.

(Most reporters recognize the attempt when they see it.)

On the other hand, it is well to keep in mind that the reporter and his publishers have a newspaper and they generally decide what goes in it. You and your client probably don't.

No client benefits from "bad press" and Virtually none of them want it, whether ~ hurts them or not.

Learn to be courteous with reporters, for your client's benefit if not your own. They may be more sympathetic than their own editors. Learn to be as straight-forward as you can be, within the confines of ethics. If a reporter is ill-informed, seek to see that he is informed, but do not lecture him. Do the same thing that you would counsel a witness to do-think before you make statements, remembering that reporters will seize upon a colorful phrase for a caption or headline, whether it is really material or not.

Recognize the difference in the objectives of the legal profession and the news media. Let reporters know that you understand the conflict and that you respect their objectives. You then stand a much better chance of having your own objectives and those of the entire legal system respected and understood by the press. ~ October 1978/ArI<ansas Lawyer/185

CODE Of PROfESSIONAL RESPONSIBILITY ADVERTISING BY ARKANSAS LAWYERS INTRODUCTION At the time this issue of The Arkansas Lawyer is at the press and being printed, the Arkansas Supreme Court's Per Curiam Order of July 17, 1978, was handed down. This article has been squeezed into this issue because of the importance of the changes in Canon Two of the Code of Professional Responsibility, However, due to lack of space, brevity is necessary so this is simply a synopsis of the changes. More detailed information will be forthcoming in future issues and in ~ssociation bulletins to members.

HISTORY The Arkansas Bar Association's Committee on Specialization and Advertising began a detailed study and research of specialization and advertising, in the early part of 1975, and at this time, the advertising proposals have been adopted by the Supreme Court, and the specialization proposals are being prepared for filing with the Supreme Court of Arkansas. On August 13, 1977, the Specialization and Advertising Committee adopted a draft proposal of Amendments to Canon Two, and the proposal was subsequently adopted by the Executive Council of the Association on August 20, 1977. The House of Delegates of the Association adopted the recommendations on September 17, 1977.

On October 11, 1977, the Association filed its Petition to Amend Canon Two of the Code. After the filing of the Association's Petition, other interested parties and organizations filed petitions, responses, and briefs with the Court. Oral argument was eventually held, and the Court issued 106/Arkansas Lawyer/October 1978

its Per Curiam Order on July 17, 1978. The proposals of the Arkansas Bar Association were adopted, in most part, with the greatest modification being the addition of television as a medium or forum for dissemination of information.

SCOPE OF ARTICLE Henceforth, this article will deal with the disciplinary rules as they affect the dissemination of information.

Ethical considerations, which are broad form policies which in effect reflect the purpose and intent of the disciplinary rules, will be discussed in subsequent articles. Furthermore, the Arkansas Bar Association's Committee on Specialization and Advertising is at this time completing the preparation of its Petition and Brief for filing before the Supreme Court of Arkansas, seeking the adoption of its proposed Arkansas Designation Plan. The details of the Arkansas Designation Plan, as adopted by the Specialization Committee, as amended by the Executive Council, and as adopted by the House of Delegates, wi Ii be discussed in subsequent articles.

Disciplinary Rule 2-105, concerning the limitation of practice, provides the longstanding exemption for the use of the designation of "Patents", "Patent Attorney", "Patent Lawyer", or "Registered Patent Attorney" for attorneys admitted to practice before the United States Patent and Trademark Office, (DR-2-105(A) (1)). However, it is DR-2-105(A) (2) that provides as follows: "A lawyer who is certified as a specialist in a particular field of law or law practice by the Su-

preme Court of Arkansas or its designee may hold himself out as such, but only in accordance with the rules prescribed by that authority."

Obviously, no specialization rules have yet been prescribed so the authorization to designate oneself as a specialist, or as practicing in a particular field of law or law practice, is limited at this time. The rule will be broadened by the adoption by the Supreme Court of Specialization or Designation Rules. The Arkansas Designation Plan will soon be presented to the Court for review, and for a decision. At that point, the Supreme Court of Arkansas may accept the responsibility for continuing developments in this area, or may appoint a "designee". In any case, the Court will soon be presented with the specialization issue.

GENERAL ANALYSIS OF DISCIPLINARY RULES 2-101 THROUGH 2-110 DR-2-101 concerns Publicity.

DR-2-1 01 (A) states that a lawyer shall not use or participate in the use of any form of pUblic communications containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim. This provision is stated as a prohibition, and contains the language of many consumer protection oriented statutes.

DR-1-101(B) states what a lawyer "may publish or broadcast". It should be noted that DR-2-1 01 (B) not only states (1) what an attorney may publish, by giving a specific list or some 25 different items, but this provision also (2) limits the publication or broadcasting of this information "in the geographic area or areas in which

the lawyer resides or maintains offices or in which a significant part of the lawyer's clientele resides ..."

This provision, then, states what can be broadcast or published, and where. DR-2-1 01 (C) provides a method whereby any person desiring to expand the information authorized for disclosure in the specific list in DR-2-1 01 (B), may apply to the Supreme Court of Arkansas or its designee. This adds flexibility to the disciplinary rules. Any relief granted by the Court, or its designee, would become an amendment to DR-2-1 01 (B) and would be applicable to all lawyers.

DR-2-1 01 (D) provides that advertisements communicated over radio or television must be prerecorded, approved for broadcast by the lawyer and a copy of the actual transmission maintained by the broadcasting station for one year.

I ~

I

DR-2-101(E) (F) and (G) provide requirements regarding the broadcasting or pUblication of fee information. DR-2-1 01 (E) provides that a lawyer must render the service for no more than the fee advertised, and the other members of the law firm must likewise perform the services, for the publicized fee, where a firm name or address is used in the advertisement.

DR-2-1 01 (F) provides that "Unless otherwise specified in the advertisement" a lawyer is bound by any representation or information regarding fees, for a period of not less than 30 days after publication, where the publication is published more frequently than one time a month. Where the publication is published once a month or less, the lawyer is bound by any representations made therein until the publication of the succeeding issue. If the pUblication has no fixed date for publication of a succeeding issue, the lawyer is bound by any representation made therein for a reasonable period of time, but in no event less than one year. DR-2101 (G) states that "Unless otherwise specified", the lawyer is bound by any representation made in a broadcast, for a period of not less than 30 days after such broadcast.

DR-2-1 01 (H) provides the normal exceptions for "limited and dignified identification of a lawyer" as a lawyer, as well as by name. These are the historical exceptions such as political advertisements, routine reports and

announcements, legal documents, legal textbooks, and so forth. DR-2101 (I) reflects the prohibition of a lawyer compensating representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news ~em.

DR-2-102 concerns Professional Notices, Letterheads, and Offices, and these are the historical exceptions, with a few modifications. Basically, the information allowed is similar to what is allowed in present legal directories. However, there is one distinction requiring caution. That is, a lawyer is not authorized to state the nature of his practice, except as permitted under DR-2-105, which concerns the specialization problem. As a reminder, no rules on specialization have yet been established. DR-2-102 also concems the method of advertising partnerships, members and associates of firms, and members who are "Of Counsel", and so on.

DR-2-103 concerns the recommendation of professional employment, and DR-2-1 03(A) is the prohibition of a lawyer recommending himself, his partner, or associate to a nonlawyer who has not sought his advice regarding employment of a lawyer.

This is the unsolicited recommendation provision.

DR-2-103(B) is the provision prohibiting a lawyer from compensating or giving anything of value to persons or organizations, as a reward or for having made a recommendation resulting in his employment by a client, except as set forth in DR-2-103(D).

DR-2-103(D) would allow payments of fees, for referrals and certain cases, and where the referring agency would be a legal aid office, public defender office, military legal assistance office, lawyer referral service, and bona fide organizations that meet specific requirements as set forth in DR-2-103(D) (4).

DR-2-104 deals with the circumstances in which an attorney may, or is prohibited from, giving suggestions to others of the need for legal services.

DR-2-105 concerns limitation of practice (as was previously discussed in this article).

DR-2-106 concerns general rules regarding fees and specific regulations regarding contingent fees and responsibility for costs of litigation.

DR-2-1 07 concems division of fees among attorneys. Some attorneys might misunderstand DR-2-107(A), by failing to recognize the requirement of DR-2-1 07(A) (1) that lawyers may divide a fee for legal services, provided the client "consents to employment of the other lawyer after a full disclosure that a division of fees will be made." This appears to be a condition precedent to the hiring of another lawyer, if one fee is to be paid by the client and if both lawyers are to share in the fee.

DR-2-108 concerns agreements restricting the practice of a lawyer, and basically provides that a lawyer cannot enter into an agreement that restricts his right to practice law. This would seem to prohibit anticompetition clauses.

DR-2-109 and DR-2-110 provide requirements for when an attorney can and cannot accept employment.

DR-2-110 provides for when an attorney may, and must, withdraw from employment.

COMMUNICATION FORMS ALLOWED FOR UTILIZATION

BY THE ATTORNEY FOR DISSEMINATION OF INFORMA路 TION TO THE PUBLIC The original advertising proposal of the Arkansas Bar Association prohib~ed the use of the television and similar electronic broadcasting media, while the proposal allowed radio broadcasting, and almost all forms of publication in written form.

Although the association's proposal had included a provision whereby the additional forums okay media, such as television, could be SUbsequently added to the plan, the Court decided to allow television advertising, and included it in the Per Curium Order. The American Bar Association Commission on Advertising, after conducting more recent studies, has now concluded that television is one of the more effective means of advertising services to the potential client, and it also provides an educational facit to continued on page 188

October 1978/Arkansas Lawyer/187

Responsibility,

continued from page 187 advertising, and it can apparently be properly regulated so as to avoid misuse by unscrupulous advertisers.

Certainly, DR-2-1 01 (A), being the prohibition against misleading, false, fraudulent, deceptive, or unfair statements or claims, will serve as the consumers' protector in this regard.

Also, much reliance has been placed on the television industry to assist in preventing harm to the public through misleading and deceptive advertisements.

THAT LIST OF WHAT IS AUTHORIZED

DR-2-1 01 (B) (1) through (25) is set forth below to advise you of what information is authorized to be published or broadcast.

(1) Name, including name of law firm and names of professional associates; addresses and telephone numbers; (2) One or more fields of law in which the lawyer or law firm practices or a statement that the lawyer or law firm specializes in a particular field of law practice, to the extent authorized under DR-2-105;

(11) Membership and offices in legal fraternities and legal societies; (12) Technical and professional licenses; (13) Memberships in scientific, technical and professional associations and societies; (14) Foreign language ability; (15) Names and addresses of bank references; (16) With their writen consent, names of clients regularly represented; (17) Prepaid or group legal services programs in which the lawyer participates; (18) Whether credit cards or other credit arrangements are accepted; (19) Office and telephone answering service hours;

charged, in print size equivalent to the largest print used in setting forth the fee information; (24) Hourly rate, provided that the statement discloses that the total fee charged will depend upon the number of hours which must be devoted to the particular matter to be handled for each client and the client is entitled to without obligation an estimate of the fee likely to be charged, in print size at least equivalent to the largest print used in setting forth the fee information; (25) Fixed fees for specific legal services, which must be accompanied by a description of the services which shall not be misleading or deceptive, provided that the statement discloses that the quoted fee will be available only to clients whose matters fall into the services described and that the client is entitled without obligation to a specific estimate of the fee likely to be charged in print size at least equivalent to the largest print used in setting forth the fee information.

CONCLUSION

(20) Fee for an initial consultation; (3) Date and place of birth; (4) Date and place of admission to the bar of state and federal courts; (5) Schools attended, with dates of graduation, degrees and other scholastic distinctions; (6) Public or quasi-public offices;

(21) Availability upon request of a written schedule of fees and/or an estimate of the fee to be charged for specific services; (22) Contigent fee rates subject to DR-2-106(C), provided that the statement discloses whether percentages are computed before or after deduction of costs; and that the client is responsible for the costs regardless of the outcome of the litigation;

(7) Military service; (8) Legal authorships; (9) Legal teaching positions; (10) Memberships, offices, and committee assignments, in bar associations; 188/Arkansas Lawyer/October 1978

(23) Range of fees for services, provided that the statement discloses that the specific fee within the range which will be charged will vary depending upon the particular matter to be handled for each client and the client is entitled without obligation to an estimate of the fee within the range likely to be

Hopefully, this synopsis by the Bar Association's Committee on Specialization and Advertising has given you a basic feel for the disciplinary rules changes resulting from the Arkansas Supreme Court's July 17, 1978, Per Curium Order. The fact that The Arkansas lawyer was at press at the time of the Court's ruling, and therefore at the time of the preparation of th is article, proh ibits further detail at this time. Hopefully, future space in this magazine can be allowed to the Specialization and Advertising Committee, for future articles concerning the ever-changing rules and regUlations regarding communication of lawyer information to the consumer.

(ED/TOR'S NOTE: Th/s article has been prepared by Chairman William Russ Meeks,//1 of the Specialization and Advertising Committee of the Arkansas Bar Association.)

I......

OYEZ 路 OYEZ II

by Barbara Tarkington Membership Secretary

Chief Justice Carleton Harris spoke at a meeting of the Pine Bluff Chapter of the Daughters of the American Revolution. Wilson Bynum, Pine Bluff, was a speaker at a June meeting of the Credit Women Intemational Club.

Herschel H. Friday spoke at the Industrial and Community Development Conference held in Hot Springs.

In Houston, William R. Wilson, Jr. of Little Rock, was a speaker at the National College of District Attorney's 1978 Executive Prosecutor Course.

William H. Bowen was speaker at the Brinkley B&PW Bosses night banquet held in April and also spoke at UCA's summer commencement exercises. Judge Elsljane T. Roy spoke to the Pulaski County Bar Association at its April meeting and at UALR's May commencement exercises was awarded an honorary doctor of laws degree. Philip S. Anderson was named by Pres. Carter to a

nominating committee to help find a replacement for former Judge William Webster, on the U.S. 8th Circuit Court of Appeals at SI. Louis. Jerry P. Childs, of Texas, has been elected to a three-year term on the board of directors of the Texas Bar Assn. Evans Benton has become associated with the firm of Attorney's Economic Con-

sultants in Little Rock. Gregory Wilson, former clerk for Justice Conley Byrd, has become vice-president of the Bank Credit Life Insurance Co. in Harrison. James W. Woods, recently of the Criminal Justice & Highway Safety Information Center, has assumed the post of corporate counsel for B.J. McAdams, Inc., North Little Rock. Charles A. Hadden, formerly with NBC of Pine Bluff, has become associated with Diversified Consultants, Inc. of Dallas, Texas. Ronald E. Bumpass, Fayetteville, has become associated with David W. Brandt in the practice of law. John R. Scott, Rogers, is now associated with Oliver L. Ada ms for the practice of law. John L. Munday, formerly of Texas, has moved to Little Rock.

John Forster, Jr., formerly of Little Rock, has joined Wallace, Hilburn, Clay1on, Wilson & Hankins, Ltd. in North Little Rock. Tim Boe, formerly of Memphis, is now located at 1635 Union National Plaza, Little Rock.

Thomas W. Weeks, formerly of Texarkana, is now with the First National Bank of EI Dorado. Harry C. Palmer III, formerly of Harrisburg, has moved to South Miami, Florida.

Jesse W. Thompson, formerly of DeWitt, has moved to 809 Parkway, Conway. Richard C. Downing, former assistant securities commissioner, has become a member of the North Little Rock law firm Napper, Hardin & Wood. Harry T. Moore, Paragould, has become a law partner in the firm of Cathy, Goodwin & Hamilton and Donald P. Chaney, Jr. is an associate. R. Edward Buice has relocated his law office to 77 Mountain Street in Eureka Springs. Breck G. Hopkins, formerly of Jonesboro, has moved to Batesville. David Hopkins, formerly with the Union National Bank of Little Rock, has joined the Arkansas Bank & Trust in Hot Springs.

Thomas M. Carpenter, former clerk for Justice Darrell Hickman, has

formed a partnership with Jack Lessenberry in Little Rock. Christopher C. Raff, formerly of EI Dorado, has joined Ed Bethune of Searcy. Walter Skelton, former state director of revenues, has joined a Little Rock law firm and the name changed to McHenry, Skipper & Skelton. Kenneth E. Buckner, former administrative law judge with the WCC, has opened his law office at 402 E. 5th Ave., Pine Bluff. John William Peterson, just admitted to the Arkansas Bar, has opened his law office in the Lenderman Bldg, MI. Ida. David L. Williams, formerly of Washington, D.C., has joined the Attorney General's office. Kandy Gregg Webb, Harrison, has joined her husband, Gordon Webb, for the practice of law in the Fitton Law Building. Larry J. Steele, formerly of Black Rock, has opened a law office in Imboden, Ark. Jerry B. Cain, formerly with the state police, has started his law practice in the office of Donald Poe in Waldron.

M. Blair Arnold and A. F. Thompson have announced the formation of Thompson and Arnold with offices in the Fitzhugh Building, Batesville.

David L. Osmon and Norman C. Wilber of Mountain Home are associated in the practice of law with new offices at 119 East 6th. John A. Crain, James W. Atkins and William Stephen Crain of Mountain Home have formed a new partnership, Crain & Atkins, with offices at Fifth & Baker Streets. Noel F. Bryant, Pine Bluff, has joined a local law firm and the name changed to Baim, Baim, Gunti, Mouser and Bryant. Tom Donovan and Ernie Witt have formed a partnership for the practice of law in Dardanelle. Ann Donovan, a recent graduate, is practicing with Witt & Donovan in Dardanelle. Jim Smith, Jr. and James H. Akins, Jr. have formed the law firm, Akins and Smith, with offices in the Worthen Bank Building, Little Rock.

f-.

October 1978/Arkansas Lawyer/189

AlelE NEWS

by Claibourne W. Patly, Jr. Executive Director Arkansas Institute of Continuing Legal Education

ARKANSAS INSTITUTE FOR CLE COMPLETES FIRST YEAR OF OPERATION The Arkansas Institute for Continuing Legal Education (AICLE) has completed its first year of operation.

AICLE, jointly sponsored by the Arkansas Bar Association, UALR School of Law, and University of Arkansas School of Law in Fayetteville, assumed the mission on July 1, 1977, to improve the quality of legal services available to the public through its educational activities for the legal profession in Arkansas. Its goal has been to cooperate with the membership of the Arkansas Bar Association to supply the continuing legal education needs of the profession within a framework of long-range planning suppiemented with annual surveys and course evaluations. By necessity as well as tradition, AICLE relies on members of the Arkansas Bar Association to voluntarily participate as planners, coordinators, lecturers, panelists, or authors either pro bono or with modest honoraria and minimai reimbursement of expenses only.

Statistically speaking AICLE directly sponsored five programs in little Rock and three regional estate planning workshops which met on successive Fridays in Fayetteville, Jonesboro, and EI Dorado. A total of sixty-three lecture hours were presented with approximately eight hundred total registrants, or an average of one hundred registrants per program-session.

On my own behalf and on behalf of the AICLE Board, I wish to take this opportunity to thank the membership of the Arkansas Bar Association for their direct participation in AICLE programs as well as for their indirect support by providing input and suggestions for the presentation of new programs as well as improving existing programs. More particularly 190/Arkansas Lawyer/October 1978

the Arkansas Bar Association leadership, through the House of Delegates, Executive Council and Col. Ransick. as Executive Director, have provided a great deal of impetus and support by encouraging strong bar committee activity and promotion of CLE endeavors. In this sort of climate, a fledgling CLE organization such as AICLE could not help but flourish during its maiden year.

REGIONAL ESTATE PLANNING WORKSHOPS WELL RECEIVED Approximately one hundred registrants attended the three regional estate planning workshops conducted in Fayetteville on April 21, Jonesboro on April 28, and EI Dorado on May 5, 1978. Each of the one-day workshops was led by a panel of three speakers who had earlier participated in the Mid-Winter Estate Planning Institute held at little Rock in January. The program concentrated on the explanation and use of the ARKANSAS WILLS AND TRUST SYSTEM. Those lawyers attending the workshops either had missed the mid-year meeting because of the inclement weather or because of the distance of travel to little Rock. AICLE is committed to including at least one regional series of programs each year on an appropriate CLE topic.

FALL LEGAL INSTITUTE Real estate transactions will be the program for the Fall Legal Institute scheduled at the Camelot Inn, little Rock, Arkansas, September 14-15, 1978.

Registration and committee and section meetings will take place Thursday morning, September 14th and the Institute part of the program will commence at 1:30 p.m. The Thursday afternoon program, moderated by Phil Carroll, Institute Chairman, will cover the purchase and sale of real estate with particular emphasis on the contract of sale,

financing the sale, tax matters, title examination, and closing. The Friday morning program, moderated by Herman L. Hamilton, Jr., will cover the development of real estate, legal problems before and after the purchase, and the construction and sale of condominiums.

The Friday afternoon program, moderated by Susan Webber, will cover the ieasing of improved real estate, including the Uniform Landlord and Tenant Act. This part of the Program not only will include an overview of proposed uniform real estate legislation such as Marketable Record Title Act, Title Standard Act, Simplification of Land Title Act and Land Transactions Act, but also proposed flood insurance requirements and environmental regulations.

PRACTICE SKILLS COURSE The Nineteenth Annual Practice Skills Course, designed for the recent admittee to the Bar (and those lawyers recently becoming active in the practice of law), will be held at the 6th floor of the Law Center in Little Rock on October 5-7, 1978. This course, formerly the "Bridging-theGap" Seminar, is sponsored jointly by AICLE and the Young Lawyers section of the Arkansas Bar Association.

The object of the course is to provide basic and practical instruction by lawyers who have a recognized expertise in the areas they will discuss.

The sessions over a two-and-a-half day period will include an extensive review and analysis of current forms used by these lawyers in their daily practice.

Typical subjects will include: ethics and fees, real property transactions, estate planning and probate, domestic relations, representation of business clients, litigation, criminal practice, representation of creditors and debtors, economics of law practice, and worker's compensation.

E. CHAS. EICHENBAUM SCHOLARSHIP FUND ESTABLISHED The Arkansas Bar Foundation has been designated to manage the E. Chas. Eichenbaum Scholarship Fund, which has been established to honor Mr. Eichenbaum on the occasion of his completion of fifty years in the practice of law in Pulaski County, Arkansas. The E. Chas. Eichenbaum Scholarship Fund has been underwritten at $15,000.00 by his law firm partners Leonard J. Scott and William

dents at the University of Arkansas Law School in Little Rock, Arkansas.

4. The governing body of the Arkansas Bar Foundation will have the final authority in the administration of the Fund, under such operating procedures as shall be worked out between the Arkansas Bar Foundation and the administration of the Arkansas Law School in little Rock.

I was truly overwhelmed by the thoughtful actions taken by my partners and the generosity of my friends. Of course, the thought that this will be a source of continuing beneficence makes me very proud.

Marvin, I, also, hope that in some small way this can contribute as a stimulant to the continuing activities over which you preside. That, too, would make me feel very good.

With kind regards, I am,

Based on the foregoing, the E. Charles Eichenbaum Scholarship Fund will be providing some $1200 each year on a perpetual basis for merit scholarships. It will be included each year in the listing of Arkansas Bar Foundation scholarships in the law school catalog.

E. Charles Eichenbaum S. Miller, Jr. and other friends. It is the single largest scholarship fund in the Arkansas Bar Foundation. It should be noted that none of the Fund will be used for operating expenses.

The Fund has been established subject to the following terms: 1. The Fund will be maintained perpetually, with income only used for creating the scholarships.

2. The income will be used to provide merit scholarships to second and/or third year law stu-

AICLE NEWS (cont.)

QUALITY OF LIFE SEMINAR "Coping With Stress" is the theme of the Quality of Life Seminar to be held at the Inn of the Ozarks in Eureka Springs, Arkansas, on November 3-4, 1978. An appropriate subtitle would be "How to Practice Law and Live a Full Life". Registration will be limited to seventy-five couples, and particular topics will include the following: WHAT IS STRESS AND HOW DO YOU DEAL WILL IT?; TAKING CHARGE OF YOUR LIFEDECIDING WHAT'S IMPORTANT; YOUR PERSONAL STRATEGIES

Foundation Chairman Marvin L. Kieffer, in a letter of July 17, 1978, has congratulated Mr. Eichenbaum on his long and successful practice of law and on having such partners and friends. Chairman Kieffer also pointed out that the Foundation was concentrating efforts in obtaining scholarships and memorials this year; and that the timing of the E. Chas. Eichenbaum Scholarship Fund could not have been more appropriate.

Mr. Eichenbaum's response of July 20, 1978 follows: "Dear Marvin:

Sincerely yours, E. Chas. Eichenbaum" As indicated in Chairman Kieffer's letter, the Foundation's Scholarships and Memorials Committee has been re-organized under Chairperson Elizabeth Brooks, and broken down into four teams covering the four State Bar Districts. Each team is captained by a member of the Foundation's Board of Directors and manned by volunteers for Foundation work.

Each team has been given a goal of obtaining five memorials for deceased lawyers and two scholarships-the latter may honor either liVing or deceased attorneysat-law. The E. Chas. Eichenbaum Scholarship Fund is a fine beginning.

Any individual or firm interested in the memorials/scholarships program may for additional information contact Colonel C. E. Ransick, Executive Secretary, Arkansas Bar Foundation, 400 West Markham, Little Rock, Arkansas 72201 (375-4605). ~

I am so gratefUl for your very nice letter.

TO CREATE STRESS; DO CLASHES IN THE COURTROOM CAUSE CLASHES IN THE BEDROOM?; and HOW TO BE HAPPY PRACTICING LAW. The speakers will include a cardiologist, two lawyers and their wives, and a psychiatrist.

This sort of program is a departure from the normal fare of CLE presentations; however these sort of stressrelated programs have been presented by the General Practice Section of the American Bar Association and CLE organizations in other states with a great deal of success. A a matter of fact such a program was pre-

sented in Texas for two successive years in 1976 and 1977, and they still had such a demand from single lawyers that they are presenting a program called "Full Life" Concept: A Full Life Seminar for Single Attorneys this year.

Brochures containing additional information and registration blanks for the Fall Legal Institute, Practice Skills Course and the Quality of Life Seminar will be mailed to the Bar membership. In the meantime please mark your calendars accordingly. ~

October 1978/Arkansas Lawyer/191

EXECUTIVE COUNCIL NOTES

by James A. Buttry Secretary-Treasurer

MINUTES Organizational Meeting of the Executive Council June 24, 1978 With some anxiety, with a bit oftrepidation, and with a lot of enthusiasm, I look forward to serving as your Secretary-Treasurer. I look forward to working with President Boyce, Chairman Carroll, the Executive Council and the House of Delegates, and I look forward to assisting each of you in any way that I can. I got off to something less than an auspicious beginning, being out of the State at the time of the first meeting of the Executive Council. David Malone generously stepped into the breach, and the minutes of that meeting are set out below.

Executive Council Members Present: Wayne Boyce, E. Harley Cox, Roy T. Beard, Phillip Carroll, Robert L. Jones, David R. Malone, John F. Stroud, Dennis Shackleford, Leroy Froman, Robert G. Serio, Christopher Barrier, Webster L. Hubbell, Marvin L. Kieffer, C. E. Ransick. Others Present: Bob McDaniel and Robert Wright.

The meeting was called to order and Phillip Carroll, serving as Chairman of the Executive Council asked David Malone if he would take the minutes in the absence of Mr. Buttry, the Secretary-Treasurer. Wayne Boyce introduced the new delegates to the Executive Council which included John F. Stroud, Jr., Robert G. Serio, Webster L. Hubbell, David R. Malone and Dennis Shackleford.

1. President's Report on Unauthorized Practice, Advertising and Specialization Wayne Boyce reported on going concerns. He indicated that the Association's request to the Arkansas Supreme Court that an Unauthorized Practice of Law Committee be formed was still in the hands of the Supreme 192/Arkansas Lawyer/October 1978

Court. The President indicated that the Court had been urged to make a decision on this matter before the July 17th recess. President Boyce also indicated that the advertising petition by the Association was also before the July 17th recess. He indicated that the Specialization Committee Report which was approved at the annual meeting by the House of Delegates had not been filed. He did indicate that the Specialization Committee had completed work on the Report and that it would be filed soon.

2. New Federal Judgeships President Boyce indicated that the Association was working hard to get the two new federal jUdgeships for Arkansas. He indicated that the newspaper stories were substantially correct and that it was not likely that two new judgeships would be approved immediately.

3. Arkansas Legal Services President Boyce indicated that he was appointing Leroy Autry, Oscar Fendler, Bob Jones, III and Vince Foster as the Association's members of Arkansas Legal Services, Inc. 4. Prepaid Legal Insurance President Boyce indicated that the prepaid Legal Insurance Committee was ready to go forward. At the present time they are drafting the Articles of Incorporation and a Board must soon be formed.

5. Systems President Boyce indicated for the new budget to be successful there would need to be additional emphasis on the sale of Systems. He indicated that several regional CLE programs were planned.

6. Fall Legal Institute and Annual Meeting President Boyce noted that the Fall

Legal Institute is scheduled for September 14th and 15th and suggested that a committee round-up be held before the Fall Legal Institute.

He indicated that the work had begun on the annual meeting. Jack Deacon has been appointed as chairman. A general discussion followed about the survey of Association members in regard to the annual meeting.

7. LAWPAC President Boyce indicated that LAWPAC corporate papers had been drafted and would be filed soon. Bob McDaniel indicated that he would soon begin active work.

8. Long Range Budget Planning President Boyce discussed the long range budget planning for the Association and indicated that it was his hope that a five year budget plan could be completed soon.

9. Constitutional Convention President Boyce reminded everyone of the prospective Constitutional Convention. He indicated that George Campbell would be serving as Chairman of the Association's Constitutional Reform Committee. He indicated that he had asked this committee to draft proposed changes to the Judicial Article. He urged members of the Executive Council to suggest changes that might be desirable in this Article. He indicated the copies of the proposed 1970 Constitution were available from the Secretary of State.

10. Membership Report Phillip Carroll called for the membership report. It was reported that at the present time the Association had 1466 attorneys and 54 student members. It was indicated that this was some 250 members more than the

same time last year. The association still needs approximately 1000 additional members. Harley Cox discussed the membership drive and asked the Executive Council to work closely with the House of Delegates for new members. Mr. Cox particularly encouraged face-to-face solicitation of new memberships.

11. Legislative Committee Colonel Ransick gave the report of the Legislative Committee. He indicated that the committee will meet around the 1st of July, that the Executive Council will review any proposed legislation on August 12th and that the Executive Council will have copies of the proposed bills ten days before this August meeting.

12. Federal No-Fault Bob McDaniel from Jonesboro discussed the status of federal no-fault legislation. Bob indicated that a great deal of material was available, including an American Bar Association study of no-fault and an American Bar Foundation report on statistics. Bob also reported on a recent meeting in Washington where interested parties discussed the status of Senate Bill 1381. He reported that Senate Bill 1381 had been voted out olthe Senate Committee with a "do pass" recommendation. He also reported that the proposed legislation will be approved by the House subcommittee and be on the calendar of both Houses late this year. He noted a Michigan case, Schaffers v. Attorney General, which held the Michi路 gan no-fault plan to be partially unconstitutional. Bob noted that some of the provisions of the Michigan plan were similar to the proposed Senate Bill. Bob also noted that the President is actively lobbying for the proposed federal no-fault bill. It is projected that there will be approximately a two-tofour vote in the Senate. Bob noted that all of our Congressman and Senators are committed in opposition to federal no-fault.

13. Workers' Compensation Bud Whetstone reported on behalf of the Workers' Compensation Committee that several regional meetings had been held and that additional regional meetings were planned. He asked the Executive Council to lend their support to these regional meetings.

14. Form Book The form book was discussed. Bob Wright asked members of the Execu-

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tive Council for available forms that were being used in Arkansas. He indicated that he would revise these forms and that they would be helpful to him in the preparation of the Arkansas Form Book. He indicated that if any forms were sent to him, the attorneys' help would be acknowledged.

He indicated that he had been approached by Bobbs-Merrill about publishing the book. It was generally discussed and agreed that the Bar Association would publish the Arkansas Form Book.

15. Corporate Systems A discussion was held about the reprint of the corporate systems. Colonel Ransick reported that there were actually two problems. One, republication of the system and second, a revision or supplement to the existing system. Colonel Ransick noted that some question had arisen as to whether the Association should republish or revise the system or whether this should be handled by the Arkansas Institute on Continuing continued on page 161 October 1978/Art<ansas Lawyer/193

LAW SCHOOL NEWS Assistant Dean James K. Miller Assistant Dean Susan Webber

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETIEVILLE Professor Milton Copeland has been appointed interim dean of the School of Law. The appointment is effective August 14, 1978. University President Charles E. Bishop announced that Professor Copeland will serve as interim dean until the search for a new dean is completed. Professor Copeland joined the faculty as an associate professor of law in 1971 and was promoted to professor in 1975. A native of Hope, Arkansas, Professor Copeland received his B.A. and M.A. degrees, both in speech, from Abilene Christian University. He received his J.D. degree in 1963 from George Washington University, where he was an editor of the Law

Dean Milton Copeland Review, was selected to the Order of the and graduated with honors. He practiced law in Los Angeles until 1967 with the finm of Kindel and Anderson. He was then a partner in the law finm of Manatt, Phelps, Copeland and Rothenberg until he joined the law faculty in 1971. In the summer of 1975, he was a visiting professor at Drake University. Professor Copeland has been a member of the Law School Admissions Committee since 1971, and is currently serving as chairman. He is also serving as a member of the Arkansas Attorney General's Consumer Advisory Board and is serving as chainman of the Consumer Law Committee of the Arkansas Bar Association.

Co~,

194/Arkansas Lawyer/October 1978

Professors Milton Copeland, Morton Grtelman, Ray Guzman, and Tom Robinson recently conducted a summer workshop on campus for practicing attomeys.

The program, sponsored by the Law School and the Division of Continuing Education, covered commercial transactions, federal taxation, and evidence.

These courses will be repeated next year with additional programs in advanced estate planning and trial techniques. The program was directed by Assistant Dean David Malone.

Professor Morton Gitalman was guest speaker at a recent meeting of the Craighead County Bar Association. The focus of his speech was a response to Chief Justice Berger's comments about the competency of American trial lawyers.

An article by Professor Howard Brill was published in a recent issue of the Depaul Law Review. The article, entitled "Protection for the Hard of Hearing; State and Federal Regulation of Hearing Aid Dealers," attempts to detenmine which state regulations are the most effective in meeting the desired goal of protecting the hard of hearing by comparing the 45 state laws and the new federal9uidelines which regUlate the hearing aid industry. Professor Brill notes that 15 million Americans are handicapped by hearing losses. Professor Brill, who joined the faculty in 1975, has a B.A. degree from Duke University and a J.D. degree from the University of Florida. Next year, he will be a visiting professor at the University of Illinois where he will teach Civit Procedure, Remedies and Professional Responsibility.

Five graduates have received prizes for their student writings in the Arkansas Law Review during the 1977-78 academic year. First prize for comments, the Price Dickson Award of $150, was awarded to Roy E. Stanley of Springdale for an article entitled "Evidentiary Aspects of Manufacturer Recommendations in Establishing Physicians' Standards of Care." The Dickson Award is donated annually by William B. Putman of Fayetteville in honor of his late stepfather. Second prize for comments, the $80 Arkansas Bar Foundation Award, was presented to William

Martucci of Interlaken, N.J. for "The Developing Common Law of Major Federal Action Under the National Environmental Policy Act." Mary Beth Matthews of Lowell won first place in the case notes category for an artide entitled "Federal Borrowing of the Reconstruction Civil Rights Statutes." Her award, for $60, was presented by the Arkansas Bar Foundation. Second prize of $50, also presented by the Bar Foundation, went to Donald Bacon of Searcy for "Indexed Principal; A Way Around the Usury Laws?" The Bar Foundation's third prize of $40 was won by W. Dale Garrett of Fayetteville for "Tracing Through Uniform Commercial Code."

Law review officers for the Summer and Fall semesters of 1978 are Wyman R. Wade, Jr. of Fayetteville, Editor-in-Chief; Mark Moll of Malden, Missouri, Managing Editor; Reba A. Raffaelli of Texarkana, Texas, Business Manager; Gary M. Bond of Springdale, Comments Editor; Patsy D. Wright of Fayetteville, Articles Editor; Penni Johnson of Fayetteville, Research Editor, and Stephen E. Adams of lillie Rock, Citations Editor.

The spring issue of the Arkansas Law Review features writings by Dr. Robert A. Leflar, distinguished emeritus professor of law; David Newbem, professor of law; Arkansas Supreme Court Justice George Rose Smith, and Douglas L. Wilson of Rogers, and by seven University of Arkansas law students. Dr. Leflar's artide is a continuation of a series of artides in which he has surveyed current devetopments in the Arkansas law on conflict of laws. Professor Newbern and Douglas Wilson, of the Northwest Arkansas Legal Services, are co-authors of an article "Rule 21; Unprecedent and Disappearing Court," in which they discuss the nonpublication of certain Arkansas Supreme Court opinions. Justice Smith's artide is entitled "The Selective Publication of Opinions; One Court's Experience." Student writings were contributed by William A. Gibson of Helena, Richard L. Cox of Hot Springs, Gary M. Bond of Springdale, Constance G. Clark of Fayetteville, John Wooddell of Pearcy (Garland County), Patsy D. Wright of Fayetteville, and John A. Brown of Sheridan.

Professor Morton G~elman, in honor of his outstanding accomplishments as a teacher, received the Distinguished FaCUlty Award at the annual Alumni Banquet held on May 13.

Professor AI WMe taught Remedies at the University of Houston during the first session of summer school.

The Student Bar Association recently sponsored a bar review course for May

graduates. Participating faculty members included Lecturer Tom Burke and Professors Bob Fairbanks, Morton Gitelman, Robert Knowlton, David Newbem, Steve Nickles and AI Wrtte.

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT UTILE ROCK FACULTY NOTES Dean Robert K. Walsh received one of eight lawyers awards for meritorious service to the bar at the Annual Meeting of the Pulaski County Bar Association in May. Professor David R. Hendrick, Jr., received the Arkansas Bar Foundation's Award of Merit at the Annual Meeting of the Arkansas Bar Association in Hot Springs for his service as Chairman of the Foundation's Committee on Court Facilities. The Committee prepared a "Facilities Inventory and Checklisf' booklet which will be used by the Foundation in a continuing program to upgrade courtroom facilities in Arkansas.

Assistant Professor Lynn Hogue has been elected to the Board of Directors of the Arkansas Chapter of the American Civil Liberties Union_ Professor Hogue's most recent article is "The Presentation of Post-Revolutionary Law in Woodcraft: Another Perspective on the ''Truth'' of Simm's Fiction" in the Spring, 1978, issue of The Mississippi Quarterly. An article entitled "Institutional Review Boards and Public Health Research: An Analysis" will appear in the forthcoming issue of the UALR Law Journal. Professor Hogue also published a book review in the Spring, 1978, issue of the Tennessee Historical Quarterly.

O. Fred Harris, Jr., who serves on the Admissions Committee of the School of Law, and Mary Ann Willis, Law School Director of Admissions, attended the 1978 annual meeting of the Law School Admission Council at Snowbird, Utah, May 31 thru June 2.

Dean Robert K. Walsh, Professors Robert R. Wright, Jacqueline Wright, Authur Murphey, and Assistant Dean Susan Webber attended a joint meeting of Arkansas, Kansas, and Oklahoma law schools sponsored by the University of Oklahoma Law Center, Oklahoma City University School of Law, and the Universlly of Tulsa College of Law on May 7 at Lake Eufaula, Oklahoma.

Donaghey Distinguished Professor Robert R. Wright and Assistant Professor Susan Webber have received the page proofs for their book, Land Use in a Nutshell, which is being published by West Publishing Company.

Professor Ruth Brunson, Director of the Law Library, along with Pauline Ghidotti, Melanie Nelson, and Mary Jane Slipsky, attended the annual convention of the American Association of Law Libraries in Rochester, New York, June 24-28.

Donaghey Distinguished Professor of Law Robert R. Wright was a visiting pro-

fessor althe University ofTulsa College of Law for a summer session in which he taught Land Use. Assistant Dean Clay Patty's work in the Arkansas Institute for Continuing Legal Education is discussed in his separate article in this issue.

ALTHEIMER LECTURE SERIES The Law School has received a commitment from the Ben J. Allheimer Foundation to fund a lecture series at the Law School by lawyers and legal scholars of national reputation.

The Foundation will prOVide $20,000 over a five year period to fund the Ben J. Altheimer Lecture Series, with at least two lectures by renowned speakers planned each year. Some of the iectures may be published in the UALR Law Journal.

The Ben J. Allheimer Foundation was created by the late Ben J. Allheimer in 1942. A native of Pine Bluff, Mr. Allheimer moved to Chicago as a young man and practiced law. In later years he divided his time between Chicago and farming interests he acquired through the years at Altheimer, a community of about one thousand persons in Jefferson County named for his family. Mr. Altheimer died in 1946.

The farming operations provide the foundation's income, which has also been used to establish three chairs at the University of Arkansas at Fayetteville. The Allheimer Foundation previously gave the UALR School of Law $20,000, which was used in the renovation and restoration of the Old Federal Building.

OLD FEDERAL BUILDING DEDICATION Dedication ceremonies for the Old Federal Building took place July 14 and 15. One of the highlights of July 14 was an informal meeting in the south courtroom of the Old Federal BUilding in which Byron R. White, Associate Justice of the Un~ed States Supreme Court, discussed with students and facully the insmution of the Un~ed States Supreme Court. This meeting was followed by a reception at the Arkansas Bar Center hosted by the Pulaski County Bar Association in honor of Mr. Justice WMe, Chief Judge Floyd R. Gibson of the Eighth Circu~ Court of Appeals, Judge J. Smith Henley, and Judge G. Thomas Eisele.

A panel of the Eighth Circuit Court of Appeals, consisting of Judges Gibson, Henley, and Eisele, convened at 9:00 a.m. in the South Courtroom to hear four appeals. Judge Gibson commenced the

court session with remarks concerning the history of Arkansas' role in the Eighth Circuit and the role of the Old Federal Building in Arkansas judicial history.

On July 15 the dedication ceremony took place in the South Courtroom. Dean Walsh presided, and remarks were made

by President Charles E. Bishop, Chancellor G. Robert Ross, Governor David Pryor, Attorney General Bill Clinton, Senator Max Howell, Ms. Anne Bar1ley, and Mr. Wayne Boyce. Mr. Justice WMe delivered the dedicatory address. The Honorable Bob Shulls, immediate past Chairman of the University of Arkansas Board of Trustees, represented the Board. Immediately following the ceremony was the dedication luncheon at the Old House Chamber in the First State Capitol Building. In the afternoon a symposium on the building, which was open to the public, took place on the third floor.

The panel for the symposium consisted of David Demuth, Charles Witsell, Jr., and Professor Kenneth Gould.

Throughout the dedication weekend law students and representatives from the Department of Natural and Cullural Heritage conducted guided tours through the Old Federal Building.

The Law School is extremely gratefUl for the efforts of the Dedication Committee, which was composed of Ann Bartley, David Demuth, Donna DuVal, Beth Friday, Inez Howell,ClaiboumeW. Patty,Jr., James Sharpe, Peg Smith, Robert K. Walsh, Charles Witsell, Jr., and Henry Woods.

Dean Walsh will wr~e a fuller article on the dedication and the Old Federal Building for the next issue of the Arkansas Lawyer.

LIBRARY VOLUMES EXCEED 100,000 The law school is extremely prOUd of Professor Ruth Brunson and her excellent staff. This year the total number of volumes in the library exceeded 100,000.

UALR ASSOCIATION LUNCHEON The UALR Law School Association Luncheon held at noon Friday, June 10, at Hot Springs during the annual meeting of the Arkansas Bar Association, was attended by about sixty persons. A number of law school faculty were in attendance, along with graduates of UALR School of Law, the Little Rock Division of the University of Arkansas School of Law, and the Arkansas Law School. Dean Walsh was the speaker. ~

October 1978/Arkansas Lawyer/195

A Court of Appeals of Arkansas: To Be or Not To Be?

by Don E. Tomlinson

I. Will the Supreme Court of Arkansas continue to sit in Divisions. or will there be created a Court of Appeals of Arkansas? That is the question.

Among the general public in Arkansas, emotions do not run high on the subject. In fact, most people would not know what one was talking about should one pose such a question.

This is not, therefore, a question of great or even general public interest at the moment. At this point, most people would probably say that the problem is more one for the judiciary and the organized bar of the state.

But perhaps it should be a public question of some moment now because later this year, as shall be seen herein, the public will be asked to answer, in effect, this very question.

Just as the administration of criminal justice at the trial and sentencing levels could break down if the question of the lack of facilities and attendant overcrowdedness in Arkansas'

state prisons and county jails is not resolved, the administration of appellate justice could break down (in the sense that a huge backlog of cases could easily build up) if the problem of an overcrowded appellate court docket is not resolved.

The Chief Justice of the Supreme Court of Arkansas, the Honorable Carleton Harris, has indicated that he takes great pride in the fact that his Court is the only state court of last resort in America that stays "current" in its workload (meaning that opinions are rendered or decisions made on all submissions to the Court during the term of the Court in which they were filed).

Judge Harris, in a speech to the Pulaski County Bar Association last year, said: In May of (1976), more cases were filed than had ever been filed in the Court before, and it became clear that we had the option of either trying some new

(Editor's Note: This article, "A Court of Appeals of Arkansas: To Be or Not to Be?", by Don. E. Tomlinson was received for publication prior to the "Report on Proposed Amendment No. 58" (at page 160) by the Lawyers' Committee for Amendment No. 58. This article should be read and studied with the Report, since it gives the background study for proposed Amendment No. 58 and points up some of the problems facing the Amendment's passage.)

Tomlinson, 3D, wrote this article on the need for an intermediate appellate court while a senior in law school and has updated it since then. Tomlinson has a B.S. from Arkansas State University, an M.J. from North Texas State University and received his J.D. from the University 01 Arkansas at Uttle Rock School of Law.

Prior to attending law school, Tomlinson was a television and wire service reporter in Arkansas for several years. He has worked in four political campaigns, including having recently concluded a stint as Campaign Director In Steve Clark's successful bid for Attorney General.

Before joining the Clark campaign, Tomlinson had been Attorney and Administrator of the (welfare) Fraud Detection Section of the state Division of Social Services since finishing law school in 1977.

At the moment, Tomlinson is a Deputy Prosecuting Attorney in the Sixth Judicial District at Little Rock where he works in the Child Support Enforcement Unit.

196/Arkansas Lawyer/October 1978

method in determining cases and writing opinions or of falling behind in the docket.

My conversations with Chief justices from sister states at meetings of the Conference of Chief Justices convinced me that once a court gets behind, it probably will not catch up.

The need was immediate, and it was our feeling that the general public, and the Bar of Arkansas, would much prefer that we remain current with the caseload.

After all, the important fact to those who have litigation in the courts is that the matter be finally decided as early as possible. The biggest criticism of the courts today is that it takes forever to get anything done, and your Supreme Court has been proud of the fact that we are current in the docket when we take our recess.

The steadily increasing workload of the Court is, of course, what has

brought this problem about. So, in terms of number of judges the Court should have and of how many appellate oourts there should be as both are related to the effective administration of appellate justice in Arkansas, what does the oonstitutional history of the Arkansas appellate judiciary tell us?

II. In Arkansas' Judiciary: Its History and Structure, 18 Ark. L. Rev. 152 (1965), then-University of Arkansas Assistant Professor of Law Edwin H. Greenebaume wrote: Courts are established to make justice available to private suitors and to provide forums in which public officials may enforce the law and accuse and prosecute those charged with crime. Arkansas from its earlist days as a territory has, like other states, provided oourts in a system of three tiers.

On the lowest level, numerous judicial officers of limited jurisdiction, using simple procedures for inexpensive enforcement of small claims and prosecution of petty offenses, are located throughout the state so that they may be geographically accessible to all Arkansas citizens.

A smaller number of oourts of general jurisdiction are prOVided on the second level to try more important cases, both civil and criminal, and to supervise the inferior oourts.

At the highest level there is a Supreme Court with a statewide appellate jurisdiction. This was the structure provided in the territorial government and which has continued until the present day.

There has been an increase in the number of oourts with a confusing array of jurisdictions, but the three-tier pattern remains.

The Constitution of the Territory of Arkansas of 1819 stated: "The judicial power of the territory shall be vested in a superior oourt, and in such inferior oourts as the legislative department shall from time to time institute and establish, and in justices of the peace......

There were three judges on the Superior Court of the Territory of Arkansas, and the Court's jurisdicition was wholly appellate in nature. 3 Stat.

493, 95 (1819)

When Arkansas attained statehood in 1836, its first Constitution (which was brief, flexible and which granted broad powers to the three branches of government to carry out their duties within an effective system of checks and balances, 1 Revising The Arkansas Constitution 1 [1968]) gave life to the Judicial Department in Article VI. The territorial Superior Court became the Supreme Court, and the number of judges on the Court remained at three.

A quarter of a century later, shortly after the outbreak of the Civil War and because "a new document was prerequisite for entrance into the Confederacy," 1 RTAC 1, a called oonvention of Arkansans voted to secede from the Union, and on March 4, 1861, "the convention changed the Constitution just enough to make it acceptable....This Constitution was the only revised charter in the State's history that was not submitted to the people for ratification. Instead, the convention declared the new Constitution to be in effect as of June 1, 1861." 1 RTAC 1 The Judicial Department remained exactly the same as it had been under the 1836 Constitution.

Some three years later, with Little Rock occupied by the North and with the Civil War drawing to a close, President Lincoln encouraged the badly split factions in the state "to form a state government in harmony with the federal authorities." 1 RTAC 2 The state's third oonsitutional convention was therefore held, and, "(f) or the most part, the 1836 document was readopted by the convention with a few minor revisions and with the abolition of slavery." 1 RTAC

2 The 1864 document did not take Arkansas back into the Union, but it declared the Confederate Constitution of 1861 to have been "null and void" from the time of its passage.

Introductory Statement, Constitution of the State of Arkansas of 1864.

The Judicial Article of 1864 reflected no changes from the Judicial Articles of 1836 and 1861.

Four years later, for the fifth time in less than a half-century, a constitutional convention was held to rewrite the Arkansas charter.

The necessity for the 1868 rewrite was readmission to the Union, one of the requirements of which "was the drafting of a state constituion accept-

able to Congress and oonforming to the federal constitution." 1 RTAC 2 For the first time in those 50 years, the Judicial Article was substantially changed, as was the entire document (reflecting the heavy Republican representation and influence at the convention) .

The number of judges on the Court was raised from three to five, and the convention added that, in addition to the superior and inferior oourts then in operation or that could be added by the legislature, "the jUdicial power of the state shall be vested in the senate sitting as a oourt of impeachment..." with "the house of representatives (having) the sole power of impeachment." Constitution of the State of Arkansas of 1868, Art. VII, §§1-3 The 1868 document was approved by the voters, but in the years that followed, the Carpetbagger-dominated legislature was corrupt, "Law and order deteriorated in many sections of the State, and some judges received their positions as a reward for party services. These conditions aroused tremendous resentment among the Conservatives (exConfederates), who clamored for honest administration, a new constitution and a change in political control." 1 RTAC 3 Consequently, the Carpetbaggers' influence did not last long, and the backlash inherent in Arkansas' six1h constitution effectively placed tight restrictions on state government.

With the resurgence of control by Democrats after the appointment of a Democratic governor by President Grant following a contested gubernatorial election in 1874, a constitutional convention was immediately called.

The 1874 Constitution (under which Arkansas state government is still operating and which as been successfully amended 57 times) differed greatly from the preceding document. It made more changes than any other constitution in the State's history.

Due to the distrust of government aroused by the oorruption of Reconstruction, the new Constitution was more detailed, with a 65 percent increase in length.

Many of the new details represented new restrictions on government.... State judgeships, most of which had been filled by continued on page 198 October 1978/Arkansas Lawyer/197

Court of Appeals continued from page 197 gubernatorial appointment, became elective offices. There were many other restrictive changes. 1 RTAC 3 Although Supreme Court judgeships had been elective offices under the 1868 document (as they had always been) and remained so under the 1874 Constitution, it is easy to deduce from the political situation at the time why the 1874 Judicial Article reduced the number of judges on the Supreme Court from five to three as had always been the case prior to the "Carpetbagger Constitution". The constitutional conventioners of 1874 were simply rejecting all the changes that had been made in 1868, whether possibly progressive or not.

In any event, even though Arkansans are still governed by the now104-year-old document, the Judicial Article, through the oft-used amendment process, has not been without some modernization.

Amendment 9, adopted in 1924, returned the number of judges on the Supreme Court to five, as had been the case during the period 18681874.

The amendment also provided that "if it should hereafter become necessary to increase the number of judges of the Supreme Court, the Legislature may provide for two additional judges and may also provide for the court sitting in divisions under such regulations as may be prescribed by law...".

Constitution of the State of Arkansas of 1874, Amend. 9, §§1-2 It was with the above language in 1924, then, that the first legitimate recognition was made of a rising Court workload by allowing for the addition of two judges and by allowing for the creation of two Divisons of the Court.

The very next year, in Act 205 of 1925, codified as Ark. Stat. Ann. §§22-201, et. seq., the legislature raised the number of judges on the Court to seven and gave the Court the authority to sit in Divisions.

Ark. Stat. Ann. §22-206 reads: The court may sit in two divisions to be designated Division No. 1 and Division No.2, to be composed of three justices in 19B/Arkansas Lawyer/October 197B

each division. The chief justice shall alternate in presiding over these divisions and in addition shall have a vote and the same power as an associate justice.

At each sitting the division not being presided over by the chief justice shall be presided over by the justice in that division having the highest seniority by reason of service as such justice.

In all cases where the construction of the state constitution is involved, or in a capital criminal case, the cause shall be heard by the court en bane. In each case heard by the court en bane the concurrence of four judges shall be necessary to a decision.

Although there is some disagreement over whether the Court may have sat in Divisions briefly in the 1940s, no record of such can be found. The Court did, however, actively take up the practice of sitting in Divisions in 1976.

history) pushed through the legislature Act 121 of 1967 setting up the Arkansas Constitutional Revision Study Commission, which reported its findings to the Governor on January 1, 1968.

Its summary conclusion was: "The major finding of the Commission is that general revison of the Constitution is needed." 1 RTAC 11 As a result, Arkansas' eighth constitutional convention was held in 1969, some 95 years after the ratificalion of the document in use then and now.

The constitutional convention of 1969 produced the proposed Constitution of the S1ate of Arkansas of 1970 (the year it was on the ballot).

The 1970 proposal was a drastic modification of the 1874 Constitution, and the Judicial Article was no exception.

Since the present Arkansas charter was written in 1874, there have been several attempts to draft and ratify a new one.

It constitutionalized the two judges sitting on the Supreme Court under part constitutional amendment authority and part statutory authority, and it carried over the Court's power to sit in Divisions, but, most significantly, §5 of Art. V, the Judicial Article, stated:

Such an attempt was made in 1917-18, but ~ was ill-fated almost from the outset because World War I was going on at the time creating general anxiety among the people and specific concern for the Arkansans in service overseas. 1 RTAC 4

A Court of Appeals is established, which shall remain inoperative until activated by rule of the Supreme Court and funds therefor are appropriated by the General Assembly.

The proposed 1918 document, which was soundly defeated, included 24 major changes, such as four-year terms for most state officers, women's sufferage and statewide prohibition, causing the document to be specifically opposed in many quarters. Of the 24 major proposed changes, 20 have since become law by constitutional amendment or by statute, including expansion of the Supreme Court from five to seven members. 1 RTAC 4

The Court of Appeals shall consist of such divisions and have such appellate jurisdiction as the Supreme Court shall by rule determine.

Between 1920 and 1965, no serious effort to completely rewrite the Constitution was made; instead, it was amended in a piecemeal fashion.

But it was all for naught because the proposed Constitution of the State of Arkansas of 1970 failed at the ballot box. (§2 of Art. V would have made a change in the Supreme Court in the sense that its members, as well, would have been elected on a nonpartisan basis. Their eight-year terms would have remained the same.)

But when Winthrop Rockefeller took office as Governor in 1967, he (as a Republican, ironically enough, remembering Arkansas constitutional

Judges of the Court of Appeals shall have the same qualifications as justices of the Supreme Court and shall be elected by majority vote on a non-partisan basis at statewide general elections for temns of six years.

Since that time, some of the provisions of the proposed 1970 Constitution, in substance at least, have been approved by the voters as amendments to the 1874 Constitution, but the Judicial Article has not been amon9 their number.

When David H. Pryor took office as Governor in 1975, he stated in his inaugural address that one of his major goals would be a constitutional convention. An effort to call one was made in 1975, but the Supreme Court, on a 4-3 vote, ruled the statutes passed by the legislature at the behest of the administration setting up the mechanics of the convention to be constitutionally defective, thereby thwarting Governor Pryor's effort for the time being.

In 1976, the voters approved a proposed act placed on the ballot by the legislature with respect to whether a constitutional convention should be called. With such a people-passed statutory mandate, then, a ninth constitutional convention has been called by statute and will be held in 1979.

But for the present, the basic question remains. There are seven judges on the Supreme Court, and they are currently sitting in Divisions of three each with the Chief Justice presiding over both, but is their workload simply too high to afford justice at the appellate level?

III According to Larry Jegley, Court Planner for the Arkansas Judicial Department when this article was first written, the national annual per judge average of majority opinions written by judges sitting on state courts of last resort is between 45 and 50.

For the year 1977, the annual per jUdge average of majority opinions written by the seven judges on the Supreme Court of Arkansas was 82, or 75 percent more than the national average. 13 Judicial Department of Arkansas Annual Report 1 (1977) It seems unquestionable, then, that justice at the appellate level in Akansas is at least being threatened.

As was stated earlier, the Supreme Court's workload has been rising rapidly. (The Arkansas Judicial Department statistically measures the "workload" of the Court, according to Jegley, in terms of total appeals and substantive motions and petitions decided [terminated] by the Court during the calendar year and in terms of

written majority opinions.) In fact, just in the last ten years, the workload of the Court has risen 42 percent.

During the same ten years (196877), the average number of written majority opinions per judge on the Court has risen 53 percent.

The following table illustrates just how the number of written majority opinions and the entire workload of the Court has risen over the last ten years. ye....

Written M.Jorlty Opinion-

Worklo.d'

1968 1969 1970 1971 1972 1973 1974 1975 1976 1977

377 346 357 360 461 425 418 469 552 577

730 661 716 686 805 778 774

800 1037 1035

â&#x20AC;˘5-13 Judici.1 Department of Arkansas Annual Reports (1968-1977)

In 1968, the seven judges on the Supreme Court of Arkansas wrote an average of 54 majority opinions; in 1977, they wrote an average of 82 majority opinions (and remember, if you will, that the current national average per judge is between 45 and

50).

In an interview, Jegley said that many state courts of last resort are not "current"; some have huge backlogs, especially those fllw that have no intermediate appellate court(s).

But in the states that do have an intermediate appellate court(s) and a backlog of cases, he said, the backlog is not very big, and the average number of written majority opinions per judge is usually close to the national average.

In Colorado, for example, a state with 2.3 million people compared to Arkansas' 2.1 million, and where, like in Arkansas, the Supreme Court consists of seven judges, each judge in 1977 wrote an average of 42 majority opinions,-Annual Statistical Report of the Colorado Judiciary 54 (197677), which is significantly less than the average of 54 majority opinions that Supreme Court of Arkansas judges were writing ten years ago in 1968.

So what is the difference? Why do Supreme Court of Colorado jUdges write so many less opinions than Supreme Court of Arkansas judges do?

Because in 1970, there was created in the state of Colorado a tenjudge intermediate appellate court styled the Court of Appeals of Colorado.-ASRCJ 59 (1976-77) It was created specifically to effect a reduction of the backlog of cases pending before the Supreme Court of Colorado. In just eight years, (197077), the Colorado Supreme Court's backlog has been reduced by 59.5 percent.-ASRCJ 53 (1976-77) In 1970, Supreme Court of Colorado judges wrote an average of 45 majority opinions; in 1977, they wrote an average of 42. So not only did their annual written majority opinion average not go up, it actually went down.-ASRCJ 54 (1976-77) By contrast, Supreme Court of Arkansas judges in 1970 wrote an average of 51 majority opinions; in 1977, remember, they wrote an average of 82 .

It is obvious, then, that the workload of the Supreme Court of Arkansas has risen dramatically during the last decade, as has the annual average number of written majority opinions per judge, but the statistics have not gone unnoticed by those they directly affect the most-the judges sitting on the Supreme Court of Arkansas.

IV, In his speech before the Pulaski County Bar, Chief Justice Harris noted that the Court had become cognizant of the rising workload trend as early as the late Sixities causing the Chief Justice, as administrator of the state judiciary, to testify on the subject before the committee of the 1969 Constitutional Convention that was working on redrafting the Judicial Article.

Judge Harris testified in favor of and obtained approval of the inclusion in the Judicial Article of a provision for the establishment of an intermediate appellate court to be known as the Court of Appeals of Arkansas.

(That Judicial Article was never given effect, of course, since the proposed 1970 Constitution did not pass, It should be noted, however, that none of the reasons generally cited continued on page 200 October 1978/Arkansas Lawyer/199

Court of Appeals continued from page 199 for the document's failure had anything to do with the Judicial Article.)

So, with the failure of the proposed 1970 Constitution, the Court was left with the problem Of an ever-increasing workload and no way to deal with it except by sil1ing in Divisions.

In his speech, Judge Harris said: The Court had been discussing for several years sil1ing in divisions, which is authorized by Amendment 9, ยง1 of the Arkansas Constitution, but the Court had been divided on the mal1er, some preferring to al1empt to obtain a constitutional amendment authorizing an intermediate appellate court. Those who were strong for sil1ing in divisions opposed this.

But in 1976, when the workload simply became too great for each judge to participate in each decision and with Judge Harris leading the way, the Court decided to try sil1ing in Divisions.

"Accordingly," the Chief Justice said, "on July 19, (1976), a per curiam order was entered creating two divisions, each eonsisting of the Chief Justice and three Associate Justices; the per curiam providing that the divisions would rotate from time to time."

The following are the other hererelevant parts of Judge Harris' speech to the Pulaski County Bar: The per curiam provided that we would sit en banc from the outset in cases presenting a substantial question arising under the Arkansas Constitution, in criminal cases in which capital punishment has been imposed, in cases of original jurisdiction under Rule 17, and in other cases designated by the court.

As to these other cases, they might well be cases considered to be of public interest, or cases of first impression.

How does the court like the new system? From what has been said to me, I take it that it has been found helpful-but not helpful enough.

And, of course, as already stated, the court's workload continues to rise.

It is my intention, if desired by a majority of the members of the court, to go before the General 200/Arkansas Lawyer/October 1978

Assembly and request the passage of a joint resolution, or bel1er known as a proposed constitutional amendment, which would be very simple, and read as follows: "The General Assembly is hereby empowered to create and establish intermediate courts of appeal to function under such procedure as the General Assembly may prescribe or authorize from time to time."

Or, I would be perfectly willing to present as a proposed constitutional amendment the provision which was in the proposed Constitution of 1970.

How do members of the Bar of Arkansas like the system? You tell me. I can only say that I have not received a single complaint concerning sil1ing in divisions. I am sure that some do not really like it, but recognize that, under the workload borne by the Supreme Court, it was absolutely essential that something had to be done-and, of course, this was the only relief affordable at the present time.

Judge Harris followed through with his stated intention (apparently with the approval of a majority of the Court) to ask the 71st General Assembly to pass a joint resolution proposing a constitutional amendment on the question of an intermediate appellate court.

According to an article in the March 4, 1977, edition of the Arkansas Gazette, JUdge Harris had on March 3 told a joint meeting of the Senate and House Committees on State Agencies and Govemmental Affairs that he didn't know what the Court would do if it didn't get some relief from its workload through the creation of an intermediate court of appeals.

Judge Harris told the legislators that it would soon become physically impossible for the Court to keep its docket current.

The article, wril1en by Carol Griffee of the Gazette staff, noted that: "Associate Justices John A. Fogleman, Frank Holt, Conley Byrd, Elsijane T. Roy and Darrell Hickman sat quietly in the hearing room, backing up Chief Justice Harris' plea."

The article went on: Circuit and chancery court decisions may be appealed, and the Supreme Court handles more

cases than any other similar court in the country, Chief Justice Harris said. Every state bordering Arkansas has an intermediate court except Mississippi.

As a stopgap, the court divided itself in half and began sitting in two divisions in September.

Doing this has been of some help, he said, but it has "lacked a whole lot of solving the problem".

As a response to the Court's plea, state Senators Morrell Gathright of Pine Bluff and Robert Harvey of Swifton sponsored Senate Joint Resolution 5 "for a proposed constitutional amendment to authorize the General Assembly to create a state Court of Appeals."

The original version of SJR 5, which was itself different from the proposed constitutional amendment Judge Harris said in his speech he was considering submil1ing to the legislature, read as follows: The General Assembly is hereby empowered to create and establish a Court of Appeals, which shall remain inoperative until activated by rule of the Supreme Court and funds therefor are appropriated by the General Assembly.

The Court of Appeals, when activated, shall consist of such divisions and have such appellate jurisdiction as the Supreme Court shall by rule determine, and shall be SUbject to the general superintending control of the Supreme Court.

Judges of the Court of Appeals shall have the same qualifications as justices of the Supreme Court and shall be selected in the manner provided by law.

Somewhere along the legislative way, however, that resolution was amended to read: The General Assembly is hereby empowered to create and establish a Court of Appeals and divisions thereof.

The Court of Appeals shall have such appellate jurisdiction as the Supreme Court shall by rule determine, and shall be subject to the general superintending control of the Supreme Court.

Judges of the Court of Appeals shall have the same qualifications as justices of the Supreme Court and shall be selected in the manner provided by law. continued on page 156

r---------------------------------::j

LEGAL ECONOMICS

by Fran Shellenberger

THERE'S AN OCR IN YOUR FUTURE A common law office lineup of personnel is usually one lawyer-{)ne secretary. If the lawyer enjoys enough seniority in the firm his secretary may be equipped with an automatic typewriter or word processing system. The automatic typewriter is idle from 40 to 60% of the time depending on the amount of non-typing chores such as filings, telephone, calendar, etc. the secretary pertorms.

Add to this scene a senior partner who insists that all his worK is original and that he doesn't need a automatic typewriter (While his secretary begins final typing on a previously typed brief) and the junior partner who uses the systems approach in his personal injury practice and whose secretary types it all on a standard typewriter.

In this office the lawyer who needs word processing the most doesn't have access to it; the one who has it uses it only part of the time, and the third needs access to it occasionally but won't admit it.

A less common scene is that in the firm of Advocate and Lawyer preViously discussed in this column. Anthony Advocate and Lawrence Lawyer each have a secretary.

However, Audrey and Louise use the team approach, Louise producing all the typing for both lawyers on an automatic typewriter while Audrey takes care of all nontyping chores for the firm. Lawrence uses the systems approach in his worK so that Louise revises pre-recorded pages to personalize them for his clients. However, Anthony dictates his worK onto dictation equipment so that Louise must first transcribe his worK onto the automatic typewriter, print it in draft form, and later revise it and print a final copy.

This system worKed well until A. Young Lyon joined the firm. Audrey could keep up with the non-typing chores for the third lawyer but Louise found she could not handle the extra typing even with an automatic typewriter.

Both firms demonstrate the need for more efficient use of automatic typewriters, that of editing, revising and printing repetitive worK. The technology exists today to achieve this goal. It is called "optical character recognition" or "OCR." OCR equipment, added to automatic typewriters, is of immense importance to the law office word processing scene for these reasons: (1) It allows access to the word processing system from text typed on every standard typewriter in the firm; (2) It removes draft typing from the word processing system, allowing the system to be used full time for its most valuable features, that of editing, revising and printing pre-recorded pages, thereby easily doubling or tripling the productivity of the word processing system.

What Is An OCR? Briefly, it's a little like an office copier.

First, it has a paper transport, where paper may be stacked for reading by the system.

Second, it has a scanning mechanism which "reads" characters or lines and converts the image into an electrical signal.

Third, its recognition and output analyses the signal, determines which characters have been read, and converts the signal into a digital data stream.'

Should You Consider OCR? How do you know whether use of an OCR-equipped word processing system would be beneficial in your office?

The following guidelines will assist in that determination. If they describe your office then it is likely that your firm would benefit significantly from OCR added to existing or updated word processing equipment: (1) If you have two and are considering a third word processing unit; (2) If centralized word processing is undesirable to you or others in the firm; (3) If your present equipment is tied up 40% of the time or more by initial draft typing; (4) If your present equipment is idle much of the time and overloaded at other times; (5) If the lawyers in the firm prefer to have typing done by a secretary close by who is familiar with the worK and with the dictation methods of the author" What are the Benefits of OCR? (1) No reorganization of existing personnel is necessary to utilize OCR. The secretary who prepares text originally is the same one who typed it before the arrival of OCR in the firm.

(2) Since initial typing is accomplished on standard typewriters, the word processing system is free to pertorm editing and revisionary worK, thereby supporting a substantial number (from 10 to 30, depending on the complexity of the worK) of standard typewriters.

(3) The need for a multiple number of automatic typewriters is significantly reduced, since access to word processing is via standard typewriter.

(4) The need for large numbers of permanently stored magcards, tapes or diskettes is reduced or eliminated because the "hard copy" may be stored in "readable" form, thereby reducing media costs and media filing.

(5) The cost of converting the current media from precontinued on page 204 October 1978/Arkansas Lawyer/20l

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ARKANSAS BAR ASSOCIATION

ADDENDA

by C. E.

Ransick

Editor

ED/TOR'S NOTE: With the special coverage on Proposed Amendment No. 58 and the intermediate appellate court, it has been necessary to postpone publication of the article on "The Tax Reform Act of 1976, Part II" by Ralph G. Brodie and The "Interviewing the Client" outline by Bob Wallach to the next issue of The Arkansas Lawyer.

WRITING AWARDS The Arkansas Lawyer is honored by the announcement from the Arkansas Bar Foundation that two or three of the articles published during the Bar Year will be singled out for excellence and the authors presented w~h writing awards. "The Arkansas Lawyer" Awards Committee for 1978-79 will be chaired by James D. Cypert. Committee members include Cyril Hollingsworth, Milas H. Hale, Norwood Phillips, John O'Connor, Jr., Neva B. Talley-Morris, and Robert R. Wright.

The Arkansas Bar Foundation in~iated this program by presenting two awards retroactively for 1977-78. "Exploring the Boundaries of the Roe Doctrine: An Imaginery Supreme Court Opinion" in the July 1977 issue of The Arkansas Lawyer was selected as the outstanding legal article. Assistant Professor of Law John I. Choate olthe College of Law, University ofTulsa, was the author. Interestingly, President-Elect John M. Luttrell of the Oklahoma Bar Association was present to receive the award for Professor Choate at the Inaugural Banquet of the Foundation Fellows during the recent 80th Annual Meeting of the Arkansas Bar Association. A Special Award went to Phillip Carroll for his cover story on Harry E. Meek in the January 1978 issue of The Arkansas Lawyer. Move over law reviews.

hall'mark n. 1. An official mark or stamp indicating a standard of purity used in marking gold and silver articles. 2. Any mark, stamp or special attestation of genuineness, good quality, etc.

For over 3,000 years, people have relied on seals and symbols representing standards of quality. Coins are probably the oldest example; before they appeared, around 1200 B.C., traders had to settle their accounts by weighing out rings or bars of gold or silver, the purity of which was hard to determine.

The word sterling on an article tells the world that the silvar ~ contains is 925/100Oths pure. The word came from the Easterlings, metallurgists brought to England in the 12th Century to improve the coinage.

That was the time of the merchant guilds, from which our modem trade associations and professional societies sprung.

Every guild had ~s hallmark, the medieval "seal of approvaL" The Goldsmiths' Company of London coined the word, referring to the mark it stamped (in ~s Great Hall) on articles made by the members.

Membership in a guild was a hallmark of integrity and leadership. Organized along craft lines to regulate their own industry affairs, they defended their members' political rights so effectively that municipal constitutions were modeled after them, and guild membership was a step toward holding public office. Historians cred~ the guilds w~h introducing the democratic element into society. They were bulwarks of the c~izens' liberty.

Today, much the same can be said about belonging to your association. Your membership, too, is a hallmark of integrity, capac~ and achievement and is widely recognized and respected. Your association fights for your rights as an individual and a c~izen, projecting and amplifying your voice into the halls of government. Your affiliation identifies you w~h the forwardlooking elements among the population, intent upon a better life for all.

NEW MICHIGAN PRACTICE RULE Up until the present time, an inactive member of the State Bar of Michigan in good standing could transfer to active status by simply so requesting and paying the dues in effect for the year in which the request was made. By order entered May 11, 1978, the Supreme Court of Michigan has amended the applicable rules so that effective October 1, 1978, an inactive member who wishes to transfer to active membership (a prerequisite to engaging in the practice of law in the State of Michigan) will have to apply for such transfer, pay the dues in effect for that year, demonstrate that no disciplinary action has been taken or is currently pending against him in any other jurisdiction and, if he has been inactive for three years or more, obtain a certificate from the Michigan Board of Law Examiners certifying that he currently possesses sufficient ability and learning in the law to enable him to properly practice as an attorney and counselor in Michigan.

U.S. DISTRICT COURT RULES The judges for the U.S. District Courts for the Eastern and Western Districts of Arkansas have scheduled a formal hearing for August 31 and September 1,1978, to consider the recommendations and proposals of the "Committee of Thirty" for the revision olthe local rules olthose courts. The hearing will be held in Room 528, U.S. Post Office and Courthouse, Little Rock, commencing at 10:30 a.m. on Thursday, August 31, 1978. All interested persons are inv~ed to attend and to comment upon the proposed rules.

October 1978/Arkansas Lawyer/203

Addenda, continued from page 203 Copies of the proposed rules have been forwarded to all of the circuij derks in each of the counties of the State 01 Arkansas wijh the request that said circuit clerks hold same for the inspection and examination of interested citizens between now and the scheduled hearing dates. Copies will also be available at the U.S. District Court Clerk's offioe in the following locations: Little Rock, Fort Smith, EI Dorado, Fayetteville, Hot Springs, Jonesboro, Pine Bluff, and Texarkana.

The chairman of the "Committee of Thirty" is Mr. Phillip Carroll of the firm of Rose, Nash, Williamson, Carroll, Clay & Giroir, 720 West Third Street, Little Rock, Arkansas, phone (501) 375-9131.

Inquiries concerning the proposed rules and the hearing may be directed to Mr. Carroll.

HILLARY RODHAM ELECTED Hillary ROOham, an attorney from lillie Rock, was elected chairman of the board of directors of the Legal Servioes Corporation, Washington, D.C. ROOham was nominated as a member of the Legal Services Corporation board by President Carter, and approved by the Senate last March to serve until July, 1980. The Legal Services Corporation is a private, nonprofit organization, established by Congress in 1974 to provide financial support for iegal assistance to the poor in civil matters. She is married to Arkansas Attorney General Bill Clinton-the Democrat nominee for the next Governor of Arkansas.

Economics continued from page 201 sent equipment to newer equipment may be significantly reduced or eliminated by printing the media library in "readable" form and "reading" the pages onto the new system. All that is needed is a typing element, font or printwheel in a style the OCR can read, usually OCRA, OCRB or Courier 12 printed in 10 pitch. Since current conversion rates are as much as $.85 to $1.00 per page, this is a substantial saving.

(6) Original typing may be prepared by any typist (not necessarily a good legal secretary) since typed copy need not be perfect.

Where Can You Get OCR? The following is a list of word processing manufacturers offering OCR: (those with an asterisk are being marketed in Arkansas.)

AES Data AES 90 Base Ultra-text Comptek Accu-text ·CPT Daconics ·DEC Digital Equipment WS-78 ICS Astrocomp LES Computext ·Lanier LTE ·Lexitron 942 Linolex ·NBI System II Phillips Word Processing System Tycom Edi-scan Vydec Wordplex The above manufacturers use optical character recognition equipment manufactured by either Hendrix, Context, 204/Arkansas Lawyer/October 1978

INTERNATIONAL LAW The Ninth Conference on the Law of the World sponsored by the World Peace Through Law Center and its affiliated organizations, the World Association of Law Professors and the World Association of Law Students, will convene at the Palacio de Congressos, Europe's largest convention center, in Madrid, Spain, September 16-21, 1979. Every Judge, lawyer, law professor and law student is invijed to participate in this truly historic event, and over 6,000 members of every branch of the legal profession all over the World are expected to attend what promIses to be the largest, most significant conference ever organized by the Center.

Over twenty panels and seminars on issues of particular signfficance in contemporary international law have been tentativeiy scheduled for the Conference, in addition to the now traditional Demonstration Trial, luncheon speakers and World Law Day celebrations. A very special event at the conclusion of the Conference will be optional visit to Vatican Cijy, on Sunday, September 22, 1979.

Under the eminent chairmanship of Spain's newly appointed Attorney-General, the Han. Juan Manuel Fanjul Sedeno, and wijh the active support of H. E. Landelino Lavilla, Minister of Justice, and the Han. Angel Escudero del Corral, Chief Justice, the Madrid Conference promises to be a major force in the progressive development of international law and the creation of a World of Peace under the Rule of Law. ' "

Compugraphic Uniscan, or ECRM, at costs from approximately $14,500 to $28,000.

There's an OCR in the future of both firms described at the beginning of this article. Is there an OCR in yourfuture?

FOOTNOTES 1. Datapl'o Research Cofp. WP51-5O().101. "Auxiliary Equipment and

System," May 1977.

2. "OCR in Word Processll'lQ," Context Corporatton, Burlington, Mas· sachuselts 01803.

Tax Tips continued from page 174 The sheer numbers themselves mean human error will occur - such as losing a request for action, or giving out the wrong information. It's inevitable.

Sometimes lines of communication fail. To make matters worse, IRS employees deal with technically complex subject matter - namely, taxes. The PRP was set up to help alleviate these frustrations when such errors occur.

PRP is also helping the IRS handle more unusual problems - problems which sometimes reflect quirks in the system ~self. It's these kinds of problems which, when brought to the attention of the IRS, can result in procedural and systemic changes. These changes can then ward off future problems for taxpayers.

The key to a successful Problem Resolu1ion Program, of course, is that taxpayers and/or their representatives go through normal channels first in attempting to resolve their problems. If such action fails, then the taxpayers and/or their representatives contact the IRS and ask for the Problem Resolution Specialist.

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