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October 1984 Vol. 18. No.4

THE

ARKANSAS LAWYER

THE PUBUCATION OF THE ARKANSAS BAR ASSOCIATION

SPECIAL FEATURES

REGULAR fEATURES

OFFICERS William R. Wilson. Jr.. President Don M. Schnipper. President-Elect Annabelle D. Clinton. Sec-Treasurer David M. "Mac" Glover. Council Chair

Wm. A. Martin, Executive Director Judith Gray, Assistant Executive Director

EXECUTIVE COUNCIL Jack A. McNulty W. Kelvin Wyrick Gary Nutter William Russ Meeks III Kaye S. Oberlag Tom Overbey

159 160 Chris Barrier/Out of Context

Stephen S. Reasoner

James A. McLarty EX-OFFICIO William R. Wilson. Jr. Don M. Schnipper Dennis L. Shackleford Annabelle D. Clinton Martha M. Miller David M. "Mac" Glover

EDITOR Ruth M. Williams

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Associo'tion. 400 West Markham. lit-

164

Some Suggestions from

and Old-Timer (Sigh!) e. robert wallach

Generations in the Law: The Daggetts of Eastern Arkansas

Robert R. Wright

167 171 172 175 176

Lawyers' Mart

Law. Literature & Laughter In Memoriam

Women of the Law in Arkansas:

A Record of the Past Frances Mitchell Ross

178

A Primer for Evaluating Tax Shelter Offerings Larry Yaneey

185 189 Bulletin 190 Executive Director's Report 191 Young Lawyers' Report 192 Arkansas Bar Foundation Report 193 In-House News 197 Index ~-================================~

ON THE COVER:

tle Rock. Arkansas 72201. Second class

The 1984-85 year began for the Arkansas Bar Association in June with the election of a new

postage paid at Little Rock. Arkansas.

Subscription price to non-members of the Arkansas Bar Association $6.00 per year and to members $3.00 per year in路 eluded in annual dues. Any opinion expressed herein is that of the author. and

slate of officers following its annual meeting.

Pictured on the cover (top row. from left) are Executive Council Chair David M. "Mac" Glover of Malvern. a presidential appointee, Association President William R. Wilson. Jr., of Little Rock. and Arkansas Bar Foundation Pres-

not necessarily that of the Arkansas Bar

Aspociation. or The Arkansas Lawyer.

Contributions to The Arkansas Lawyer

ident Robert 1. Jones III. of fort Smith. Also pictured (from left) are Judge Annabelle Davis

are welcome and should be sent in two copies to the Arkansas Bar Center. 400

Clinton. assuming her third term as the Association's secretary-treasurer. American Bar As~ sodation Delegate Herschel H. Friday and Martha Miller. chairof the Young Lawyers' Section and the newly appointed Association

West Markham, Little Rock, Arkansas

72201.

All inquiries regarding advertising should be sent to The Arkansas Lawyer at the above address.

Point of View/Letters

The Deposition and Reality:

Robert S. Hargraves

Robert Hornberger Joe Reed Dovid Solomon

The President's Report

lobbyist. All three are from Little Rock. Don M. Schnipper of Hot Springs (not pictured) was Photo By Pat Patterson

chosen president-elect.

July 1984/Arkansas Lawyer/157

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THE PRESIDENT'S REPORT

state. The primary emphasis will be on the exchange of ideas between lawyers and judges. As some of you know, the federal practice seminars which have been held in Little Rock in the past few years have been well attended and well received.

We should do everything we can to reduce any unnecessary friction between the bench and bar. I emphasize the word "unnecessary"

REDUCE 'UNNECESSARY' FRICTION BETWEEN BENCH AND BAR

By William R. Wilson. Jr. It seems appropriate to mention the last bar year before talking about the current one. Past administrations. with the vital assistance of a fine staff. have turned the Association over to us with a clean bill of health.

If we can continue to gain in membership we will not face a dues increase in the immediate fu-

ture. This fact alone places us amongst the "select few" associations across the country-and, again. this is a tribute to the good stewardship of previous adminis-

since I suppose there will always be some tension between those of us who try lawsuits and those who will invariably rule against us from time to time. Nonetheless. a program where there can be a frank exchange of ideas, mixed with a reasonable amount of socializing. should go a long way in maintaining a healthy relationship in our profession. (I am firm in this conviction even though I am aware of Mark Twain's statement that, "Constructive criticism is a

wonderful learning device. it's just that no criticism leveled at me was ever constructive. ")

Judge John T. Jernigan, of Little Rock. president of the Judicial Conference. has asked Judge Perry Whitmore. also of Little Rock, to chair the Judicial Committee to work with the Bar Association in implementing the trial practice seminars. Plans aTe on the draw-

ing board for a pilot program in the near future-more on this later.

The House of Delegates at the

trations.

annual meeting unanimously

The annual meeting in June closed the last Bar year with an outstanding program on appellate advocacy. Appellate judges on the program gave us insight into this subject from the other side of the

passed a resolution opposing federal legislation (S. 1714) which would permit the FiC to regulate the licensure and discipline of lawyers. Just in case you think your eyes are deceiving you. I say again: "The FiC is pushing legislation which would permit it to pre-empt the regulation of the law practice by state supreme courts."

If this legislation passes, a complaint against you next year could be heard by an FiC bureaucrat. rather than by the Supreme Court's Committee on Professional

fence and there were appropriate

discussion periods so that practitioners could express themselves and ask questions.

This subject brings me to the current year. One of the new projects we

are

undertaking

is

the

establishment of trial practice seminars in various areas of the

Conduct-<md the bill is precariously close to passing in the Senate.

At this point there is considerable debate as to exactly what S. 1714 authorizes or re-authorizes. and. unfortunately. there is still too little certainty as to exactly what language should be in an amendment which would prevent this outrageous possibility. (We certainly can't successfully argue that the legal profession should be exempted from price fixing or other general anti-trust regulations. The House resolution recognizes this.) I can only assure you that your president. along with other present and past bar officers. are vigorously opposing this legislation, and we are working, on a daily basis, with our congressional delegation and other bar associations. Unfortunately. I cannot give you a sanguine report. I can assure you, however. that your elected officers have mutually pledged to take hide. hair and all in the struggle.

Outside of this one gloomy prospect, I am happy to report that the ship of State of the Association is two-blocked, and that I. as your duly elected helmsman. will do my dead level best to "keep 'er steady as she goes."

When lim West was president a few years back he adopted the theme. ''I'm Proud to be a Lawyer."

I hereby adopt and re-affirm this theme for this Bar year. A self depreciating sense of humor is becoming in almost anyone; but let us never shuffle around or apalogize because the profession is criticized by some. It is a high privilege. in my judgement. to be in a calling where the rights and property of others are placed in our hands for safekeeping. Our society has given us a special place and charged us with a special trustmay we always keep in mind that "unto whom much is given. of him shall be much required."

0 October 1984/Arkonsos Lowyer/159

POINT OF VIEW/LETTERS

What Shall We Do About Model Rules of Professional Conduct?

By Judge John A. Fogleman Ultimately this is a question that must be answered by the Arkansas Supreme Court. Amendment 28 to the Arkansas Constitution eliminated any lingering doubt about the Court's power and responsibility in that regard. Action sua sponte by the Court to adopt a comprehensive governing code or to substantially revise an existing

code is too much to expect of it in view of its role in adjudication and procedural rule-making, in addition to the regulation of the legal profession. Still in the fastchanging atmosphere that envelopes our world today, extensive re-examination and modernization of existing standards periodi-

cally is a necessity.

Watergate focused the attention of the legal profession upon the necessity for improvement of its

public image. Obviously, public perception of the success of existing self-regulatory systems in producing a high standard of professional conduct was highly unfavorable. As a result, the orgcmized bar recognized its role in meeting a mounting crisis. The American Bar

Association evidenced its sensitiv-

ity to the problem by naming a commission which came to be

known as the Kutak Commission in honor of its energetic and dedicated chairman, whose unfortu-

THE ARKANSAS LAWYER welcomes point of view articles and letters from readers.

The editor retains the right to edit them for space. All correspondence must be signed though names will be withheld on request. Send to the Editor. Arkansas Bar Association, 400 W. Markham, Little Rock, AR 72201. l6D/Arkansas Lawyer/October 1984

nate. untimely death preceded completion of the Commission's final report. A detailed history of the six years intervening between the appointment of this Commission and the adoption of proposed Model Rules of Professional Conduct by the House of Delegates of the American Bar Association on August 2, 1983, would serve no useful purpose. Suffice it to say, the Arkansas Bar Association has appropriately recognized its duty to the profession and to the Arkansas Supreme Court to consider these Model Rules as a basis for modernization of the regulations governing the members of the profession. Chair Herschel Friday of the Arkansas Bar Association Committee on the Model Rules has reported to you in the July, 1983, issue of The Arkansas Lawyer on developments in other states, the composition and progress of the Arkansas committee, and the categories treated in the Rules. In that report, he invited suggestions and comments from individual lawyers. (Thus far I have received none. I take silence to be tacit' approval-or at least a lack of disapproval). In addition, a presentation of the program was made and numerous copies of the proposal distributed at the annual meeting of the Association. Several members of the Committee have spoken on the subject to bar groups across the state.

I wish that I could make a definitive statement of my conception of

the content of the final report of this Committee, but years of experience had convinced me of my inability to reliably predict collegial action when problems are complex. I must satisfy myself (and those who may read this article) with a statement of some of the background problems I perceive.

One might well ask how there could be any problems in view of the years of study by the Kutak Commission, its revision of its recommendations, the thorough debates and resulting amendments made by the House of Delegates of the American Bar Association in both 1982 and 1983. Although the stature, expertise and varied backgrounds of the participants in this process should give rise to a presumption of suitability and appropriateness, your committee has not perceived its mission as one of placing a rubber stamp of approval upon the package presented. We deem this appropriate in view of the drastic changes involving both format and rules relating to highly critical areas. It must be remembered that the very process which produced the ultimate proposal made it a consensus reached by compromise. Review of that proposal by each new group tends to revive every previous debate in the Commission and in the House of Delegates, as if de novo determination was expected. At any rate, it appears that revisions have been made in every state in which review has been conducted, either by a reviewing committee or by the bar association. Furthermore, virtually every member of our Committee has expressed an objection to some provision of the Model Rules. Even though complete information is not available about revisions made or proposed in other jurisdictions, it appears to me that no state has adopted the Model Rules with significant change.

So far as I have been able to ascertain, the Model Rules have not been adopted by any state courts and at the last report, committee review had been completed in only

six states. In five of them; Pennsylvania. Michigan, Missouri. Dela-

ware, Arizona. The matter of adoption is pending before the Supreme Courts of those states without action, according to the best information available to me. It also appears that the Model Rules have survived intact only in the U.S. Court of Claims, the Territorial Courts of American Somoa and the Federated States of Micronesia.

An extensive revision of the Code

of Professional Responsibility, with the Model Rules serving as a sort of guide, was made in Virginia.

This cannot pass as an adoption of the Rules, in my opinion.

In sixteen other states, and the District of Columbia, completion of committee review is imminent,

with a report to the respective Supreme Courts expected to follow.

Arkansas is one of a great plurality of states in which committee review is not complete. Committee review, at last report, had not even started in three states; Iowa, Illinois and California. The lack of action nearly a year after House of Delegates approval by two states among the top three in lawyer population and the failure of any state to adopt the Model Rules is discouraging. The fact that the Model Rules have not survived intact in any states where any re-

view has been conducted is dis-

boundary between necessity and expediency? What consideration is to be given to the problem of a lawyer whose practice requires ac-

tion across state border which ale inherent when there is a lack of uniformity. These questions are

illustrative of those with which the Committee must grapple and seek to find satisfactory answers-that is answers which give adequate consideration to necessity for uniformity based upon the ideals established by the consensus ultimately established in the Model Rules and the necessity for modifi-

ance in the basic principles em-

tradition, outlook and practices."

I do not intend to be a "prophet of doom." I am simply attempting to draw attention to the competing influences with which the Committee (and the profession) must deal.

The answers can no longer be totally formulated in terms acceptable only to lawyers. In this age of

bodied in the Canons and the objectives reflected in the Ethical Considerations. This caused problems, which the Model Rules sought to solve by stating rules exclusively. Basically these rules were projected as the basis for disciplinary action. No model can reach perfection, however, and even the Kutak Commission found

consumerism. the interests. not

only of clients but also the general public, must be (and should be) weighed seriously. The serious-

ness of the problems confronted by the Committee are exacerbated by the fact that on original review every member of the Committee finds one or more of the rules

objectionable, unsuitable, inappropriate or questionable at the present time. As is usual. the temptation to "second-guess" the

One of the purposes of model rules is to achieve uniformity.

Even though the drafters of the rules (at least the chair of the Commission) felt compelled to state that there must be latitude for adaption of the national model to local tradition, outlooks and practice and predict that the Model Rules will be subject to any necessary modification at the level of local implementation. Perhaps the changes made in other jurisdictions are within the allowable latitude, but we are in no position to render judgments. After alL what latitude is allowable? What

decisions of the ultimate drafters is inevitable but probably not totally irresistible.

In spite of virtually unanimous acceptance of the new format, the only state in which final action (Virginia) has been taken rejected it. I believe that your Committee agrees that the format of the Model Rules are, in today's world, superior to the Model Code of Professional Responsibility. The latter made an attempt to distinguish aspirational goals and disciplinary rules by calling the former Ethical Considerations and the latter by their correct name, but both are treated under the heading of a Canon, which was the statement of a very general concept under which the Ethical Considerations and Disciplinary Rules were categorized. The aspirational Ethical Considerations were designed as statements of objectives or principles, but as ideals

local implementation? When modifications are made in local implementation. is necessity to be

determined by the bearing they would have on acceptance of some

form of the Model Rules by an extraordinary majority of the practicing bar? If so, where is the

preamble's invitation to enforcing

agencies to find interpretive guid-

cations to accommodate "local

tressing.

renders modification necessary in

basically for guidance and not mandatory. On the other hand, the Disciplinary Rules were mandatory and established a minimum level of conduct which called for discipline of the lawyer whose conduct fell below it. Inevitably, there was a blurring of the distinction between the statements of the high aspirations and of the mandatory minimums, both in the minds of the practicing lawyer and of disciplinary agencies. This was attributable, at least in part. to the

it necessary to compromise this

objective between the statement of lofty ideals and declaration of enforceable standards in the form of directives and prohibitions. According to the chair of that Committee, these are accompanied by discretionary standards creating "safe harbors" in which a lawyer may safely make reasoned judgments without fear of regulatory punishment. In the statement of "Scope" in the preamble, the rules cast in the terms "shall or shall not" are identified as imperatives

and those cast in terms of "may" are classified as areas of professional discretion calling for no disciplinary action so long as the lawyer acts within the bounds of discretion or chooses not to act at

all. Likewise when comments use "should," no obligations are imposed.

The preamble to the Model Rules contains a statement which may be desirable but is subject to question. It is: Violation of a Rule should not give rise to a cause of ac-

tion nor should it create any presumptive that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for reg-

ulating conduct through disciplinary agencies. They are October 1984/Arkansas Lawyer/l61

not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted w hen they are invoked by opposing parties as procedural weapons. The

fact that a Rule is a just basis for a lawyer's self-assessment. or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. r consider that statement wholly unrealistic and non-binding, even upon courts adopting the Model Rules. If the Model Rules of Professional Conduct do not establish standards for the lawyer-client relationship, then what standards shall the courts apply to determine the obligation of lawyers in malpractice and breach of con tract actions? Does anyone dream that an opponent can not call for disqualification of an opposing lawyer for conflict of interest or appearance

as a witness on the basis of the Model Rules?

Since the Model Rules must deal with confidentiality (and whistleblowing?), conflicts of interest (even the problems pertaining to relatives in different firms) and other sensitive areas, careful consideration is essential. but we

must view the rules in the light of the world we live in and not that of Editor's Note: Judge John A. fogleman, of Little Rock, is a member of the Association's Committee on ABA Model Rules on Professional Conduct. He is of counsel with the Gill, Skokos, Simpson, Buford and Owen law firm. The Committee on ABA Model Rules on Professional Conduct, in addition to the author. consists of Hershel H. friday, chair, and members Philip Anderson, H. William Allen, and John P. Gill, of Little Rock, John F. Stroud Jr. of Texarkana, Howard W. Brill, of fayetteville, and 1. C. Deacon. of Jonesboro. Deacon was liaison to the Kutak Commission from the Board of Governors of the American Bar Association. Allen was liaison from the ABA Standing Committee on Ethics and Professional Responsibility.

162/Arkansas Lawyer/October 1984

by-gone days. r trust that Arkansas will move with "deliberate speed," which I interpret to mean not too fast, nor yet too slow.

If you have a point of view you want considered. please communicate with a member of the

Committee. (On July 26, 1983, New Jersey became the first state to establish the ABA Rules).

0

LEITERS Dear Editor: I read with interest the "Point of View/Letters" column by Forrest E. Dunaway entitled "Why Do People Hate Lawyers?". The article states, I think. some common observations but misses the main point.

The integrity of the legal profession does not depend upon the perceptions of the public, it depends upon the practice and practitioners being observed.

Mr. Dunaway states that "People don't understand people expect too much people have ... a misplaced responsibility." He also argues, in regard to drug enforcement and religious expression, that, "These pursuits are totally hopeless since morality, right action and a religious and philosophical respect for life w hen enforced by law lead to oppression."

If we accept Mr. Dunaway's premise, then the perfect legal state is one of anarchy. The problem that the vast majority of people have with the law profession is precisely this apparent lack of a moral or ethical base.

Have we so soon forgotten the lessons of Watergate-the legions of lawyers parading before the public contending that a proper understanding of the law has nothing to do with "morality" or "right action"?

This event did seem to trigger some resurgence of interest in the "Canons of Ethics" during my law school days at Fayetteville. However, I took no classes on media路 tion, philosophy of law, or nonlitigative remedies. (Mr. Dunaway does, commendably, point out the tendency for lawyers to escalate conflict between parties.)

If lawyers wish to be seen in the public mind as persons of honesty and integrity, then we must under-

stand the law to be a means, and not an end. The lawyer's brief does not define "right and wrong."

Our laws reflect the public conscience and basic principles of morality ("Thou shalt not kill"?) which our communities and country choose to enforce.

People will trust and respect a lawyer who first demonstrates an ethical or moral base. There were many fine attorneys who could have served as special prosecutor for the Watergate investigationLeon Jaworski was chosen because he was a man of unquestioned character and principle.

(I would recommend highly his autobiography, Crossroads.)

There are many dedicated, principled attorneys who are mindlessly slandered with the familiar castigation of lawyers in general.

The Arkansas Bar Association, the Christian Legal Society, and other such groups can help that image by rebuilding a philosophical and religious base for the practice of law.

The problem and the solution is in us, not in the public understanding.

John E. Brown III

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chris barrier/out of context Will Strunk referred to his original edition of The Dements of Style with deliberate modesty as "the little book." It is indeed brief: even with E. B. White's revisions and additions, the paperback version barely spans 100 pages. Its organization is tight and useful. Its index and table of contents identify common problems and point the way to the answers.

Despite Strunk's modesty and the book's brevity, neither is equivocal on matters of usage. Choices which others might treat as

for this, Lawyers could also add

Strunk

this is a case that stands for the

and White and Me and You

for Strunk. For example. the possessive

. is always formed with an apostrophe and an s--even with names or nouns ending in s says Strunk.

Firm, but not stuffy ...

He is equally firm about commas used with parenthetical expressions (always use two), and those in-

Strunk has direct, easily remembered advice for common situations. How do you punctuate outside and around an expression

in parentheses contained within a sentence? Exactly as you would if it were not there.

magic in Strunk's re-

sponse, but there is sense: if less than a line in length (just a word or phrase), use quotation marks. If more (especially complete sentences), single space and double indent-but do not ever forget to drop the

stances w here commas are mere clutter. He is

not. however, stuffy.

"Bread and butter" is invariabl y treated as ..

quotes once you've in-

dented.

being singular and ~

would be awkward if .~ treated otherwise. His ~ preferred tools for.& dealing with hypheand a dictionary.

Like Bill Zinsser, Strunk believes in examples and displays a surprising sense of humor. (The humor was apparently polished, but not added, by White.) He combines the two in dealing with misused participial phrases: Being in a dilapidated condition, I was able

vice ...

How do you handle quotations, especially within a brief? Specifically, when do you just double space and contain wi thin quotes, and when do you single space and double indent? There is no

options are mandates

nated words aTe common sense

proposition that and many others.

Strunk's unbending credo: "Omit needless words."

Common problems. sound ad-

Commonplaces

of

careless writing ... lences which form "enormous blocks of print."

Negatives and dead leaves ...

Strunk prefers the active voice to

the passive. Compare There were a great number of dead leaves lying on the ground and Dead leaves covered the ground. The active voice is usually more vivid-

If the sections on usage, composition and form do not make you squirm with painful self-recognition, Strunk provides a chapter on mistakes.

These "commonplaces of careless writing" focus on misused words

and expressions, such as the confusion of allude and elude, allusion and illusion. Who among us

can correctly use both tortuous

and requires fewer words.

and torturous? (The first is a state

of being, such as a twisting road.

position, the "first principle" of

Negatives also drain the juice from our sentences, says Strunk.

Lawyers apparently use them to soften or equivocate, but why is

which "is to foresee or determine

would not be unreasonable to as-

the shape of what is to come and pursue that shape." Build that shape paragraph by paragraph, says Strunk, avoiding massive paragraphs and rambling sen-

sume preferable to may

to buy the house very cheap.

Strunk covers usage in 15 pages and moves his student on to comM

164/Arkansas Lawyer/October 1984

reasona~

blyassume?

Other examples of clustered clutter which Strunk would ban include the fact that and the reason

The second is more active, connot-

ing torture itself-which is how I feel about trying to remember the difference.)

How about farther and further? I may continue to interchange them, but at least I'll know that farther is best used with distance, further with time or quantity.

Just one clinker ...

Only once does Strunk's advice ring not entirely true. He is understandably uncomfortable with some efforts to remove the gender bias inherent in general pronouns--using he or she and himself or herself when referring to a person in the abstract is neces-

sarily awkward. Strunk contends that he encompasses both genders: "He has lost all suggestions of maleness in these cir-

Jargon, fads and fancies ...

Like Zinsser, Strunk ahhors jargon, especially made up words, such as those constructed by adding the suffix wise-taxwise, pricewise. salt water taffywise.

Fad words vex him too, especially those with a pretentious ring-it is pretension indeed which converts a jail to a correctional facility. a school house to an educational facility. and so on.

According to White, no line of

cumstances." He overstates his

work is immune to jargon or

case, and the problem can be avoided in most cases by careful rephrasing, rather than relying on dubious linguistic androgyny.

Frankly, I don't know if this reflects Strunk's position or White's.

(You could compare the first, second and third editions of The Elements of Style to find out. hut I doubt that the exercise would replace Trivial Pursuit as a source of entertainment. There are stylistic changes in the illustrations that are ohviously White's-Strunk would have few female lawyers in 1935 and John Updike's fictional character "Rabbit" Angstrom not at al!.)

chronic misuse of the language. If you choose the language of advertising, you "do so at your peri!. for it is the language of mutilation."

Business language's "portentous

Avoid "rich. ornate prose," cau-

tions White, as it "is hard to digest, generally unwholesome, and sometimes nauseating." Instead.

the "approach to style is by way of plainness, simplicity, orderliness, sincerity."

Keep it simple, stylist ...

Once the writer has mastered brevity and simplicity, stylish writing may be attempted, passages which White calls those "occasional wing shots" which bring "down the bird of thought as it flashes by." However. until then the writer should keep The Elements of Style at hand and Strunk in mind, as quoted in White's introduction:

nouns and verbs invest ordinary

Vigorous writing is concise. A

events with high adventure; the

sentence should contain no un-

executive walks among ink eras-

necessary words. a paragraph

ers, caparisoned like a knight ...

Even the world of criticism has a modest pouch of private words, , , White would likely sympathize with the late Barney Kilgore, who, as editor of the Wall Street Journal warned his staff: "If I see 'upcoming' in the paper again, I'll be

no unnecessary sentences. for

downcoming. and someone will be

outgoing."

the same reason that a drawing should have no unnecessary lines and machine no unneces-

sary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that every word tell.

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166/Arkansas Lawyer/October 1984

n the middle of a blinding snow storm on the highway between Santa Fe and Albuquerque, the European sedan in which I was riding as a passenger, slid solidly on a patch of ice and directly into the snow bank by the side of the road.

We were but one of a long series of cars and trucks whose slow motion departure from the paved highway strikingly resembled a ballet that had outrun its choreography and dissembled before our eyes.

Almost an hour later the tow truck operator connected the cable to the front axle and returned to his vehicle on the roadway to commence the winch operation. At that

I

Editor's Note: e. robert wallach is "one of the truly outstanding trial lawyers in the United States," said Judge Henry Woods in providing The Arkansas Lawyer with a biographical sketch of the author. wallach, dean of the Hastings Center for Trial and Appellate Advocacy, Hastings College of the Law, University of California at San Francisco, is the author of

many articles in law reviews, tbe ABA Journal and similar publications. He is a professor of law at Hastings, former president of the Bar Association of San Francisco, former director of the American Judicature Society and is a fellow in the International Academy of Trial Lawyers. He is special trial counsel to Feldman, Waldman and Kline in San Francisco.

second, an American sedan, oc-

cupied by four Nuns, slid out of control and pinned him between its right front fender and the rear left side of his truck. For the first time in my life, I understood the term "piercing scream." Without any recollection of the time involved, my colleague and I ran

through the snow to his assistance. We came upon him-

separated some five feet from the lower portion of his left leg. In less time than it has taken you to read these words his leg was bound by a tourniquet, he was placed in the rear seat of a Highway Patrol vehicle, and had left the scene.

Standing in the cold night filled with white snowflakes descending at a rapid pace were two bloodstained and bewildered lawyers.

I have no doubt that the events of that night will ultimately be transcribed by a deposition which will last a minimum of an hour and may go on for three times that estimate. Is that necessary? Is it effective? Does it do anything other than meet a young lawyer's obligation to provide a report. of virtually the same length as a deposition. to an insurance carrier or a senior partner?

Taking a Deposition Tests and articles abound with descriptions of "how to take a deposition." By and large, conscientious young lawyers everyw here have ascribed to those

recommendations by interpreting

them as mandatory checklists to conclude lest they somehow be accused of having created an omission which proves fatal to the cause.

Let us begin by understanding that the underlying purpose of a deposition is to recreate reality. It is our obligation to secure, with as much precision as possible. events which transpired in an amorphous. often instantaneous. and random sequence. The ellort to r\,create a series of consecutive facts, conversations, or relationship must correspond to the reality in which they occurred [without a then-conscious effort to preserve the event for later recall.]

How can we best coalesce the artificial strictures of a deposition, with its insistance upon precise recall. to the reality of the indefiniteness of the events themselves?

1. Do Not Commence the Deposition Until You Know the Event Itself Intimately.

Even if one had never experienced the dynamics of a catastrophic accident in a blinding snowstorm, the application of one's own introspective analysis of all of the facts which had to transpire in those brief. horrible seconds is an imperative before the deposition can be properly structured. If it is an accident, the reports must be reviewed, photographs observed and often the scene itself visited.

In business matters. documents must be reviewed. In medical

The Deposition and Reality Some Suggestions from an Old-Timer

(Sigh! ) bye. robert wallach October 1984/Arkansas Lawyer/167

cases, the medical records analyzed by a person capable of understanding the meaning beyond their words. In short, the questioner must be satisfied that the actual reality of the event is already understood before the deposition is commenced. From that information, the questioner must try to comprehend the relationships that are involved, the pressures which existed, the motivations which produced the language or the actions, and-most importantly-the interests which the witness seeks to protect or project. Some of the considerations which should immediately be apporent to the questioner that are presented by the facts of the New Mexico accident include: the underlying question of just what is negligent conduct in a weather condition of that type; how will jurors determine what is reason-

able conduct under those circumstances considering their own experience; how would a juror's

reaction be affected by the fact that the vehicle was being operated by a nun; in what way will the catastrophe of a lost leg to a young working man and father overcome or ameliorate w hat some might describe as an "act of God" defense.

(It makes no difference to the trial lawyer that such a defense no longer legally exists-it exists in the minds of jurors).

2. The Purpose of the Deposition Must Be Carefully Defined.

All to often we enter the deposition believing that the witness must be hostile or that our cause must be just. The reality is that most laywitnesses have very little "interest" in the outcome and are

truly apprehensive about their own role in the proceedings. Taking the deposition of a nun who already realizes that she has been a participont in an act which has materially changed the life of an innocent young person should cause even the most experienced

lawyer to ponder carefully the approach to be taken. Is the deposition designed simply to record and fix into position the testimony of the witness? Is the testimony desired in an effort to caution the witness of the inadequacies so as to discourage vigorous advocacy by the witness at the time of trial?

ISB/Arkansos Lawyer/October 1984

Is the witness truly hostile or is the testimony sincerely given but misperceived? Is the witness a liar or must the questioner concede (even privately) that the witness is honorable and the cause which the questioner represents placed in jeopardy? Even with an expert witness, presumed to be both "interested" and experienced, the lawyer who probes carefully for that core of intellectual honesty which most (but not all) expert witnesses possess may well find a reservoir of greater candor than

would otherwise be anticipoted.

3. The Manner of the

Examination Must Be Decided Upon.

No purpose is served by hostile examination until the witness has demonstrated hostility to exist.

One can never be so certain of a

witness' posture as to foreclose the opportunity to gain an alliance. It is helpful to undertake a full explanation of the purpose and scope of the deposition. This can accomplish a dual purpose: (1) preserving an important explanatory foundation for the questions and; (2) providing the opportunity for the witness to assume a neutral

position. An introduction that proceeds along these lines may accomplish both purposes.

While I realize that this deposition procedure has been explained to you by your counsel. let me say a few words so we are sure we are

both proceeding on the same premise. My responsibility is to ask questions and yours is to provide answers as accu-

rate and truthful as are within your ability. You are not obli路 gated to answer any question you do not fully understand.

My questions must be both intelligent and intelligible. If they are not. you should refuse to answer them. Ask me to clarify the question until you are properly satisfied that you understand. When you provide an answer.

please be sure it is complete and truthful. This testimony is given, under oath, just as though you aTe in a courtroom with a judge present. Remember that the purpose of this deposition is to transcribe the testimony so that it

is available to us at the time of trial. If your testimony at that time should vary, in any respect. from the testimony you've given today, I would be obligated to comment upon that variation and you would have to explain it. If you do not remember something, tell us. If your answer is based upon something that you 'usually do' or 'probably happened' rather than your specific memory, tell us. Both types of answers are acceptable but we need to know the different basis. If you would like to interrupt this deposition at any time to confer with your lawyer, either here or out of our presence, please feel free to do so. If there is anything you do not understand, interrupt the deposition, and ask them to explain it to your satisfaction. My intention is not to trick or deceive you. I simply want to be certain that at the conclusion of this deposition, I fully understand your position and have your testimony as accurately as you can give it. Now, do you have any questions before we begin?

When an introduction such as this is made by opposing counsel to a witness of mine it often includes an expression to the effect that if a question is answered, it will be 'presumed' that the witness understood the question. At that point. it is appropriate for the lawyer to interject that any witness who answers the question believes that they understood it, but that is not necessarily the case.

The lawyers should listen attentively and when such a discrepancy appears to occur, in-

terrupt and inquire of the witness to be sure that the question was fully understood. While a lawyer should not be constantly interrupting a witness to assist testimony. it is a responsibility to be sure that the testimony given is accurate

and that the witness is responding as they fully intend to do. Don't be intimidated by accusations such as 'throwing a life-line'. At that same time, don't abuse the right to interrupt. A transcript which shows a lawyer constantly assisting a witness is hardly an impres-

sive reading before a jury.

We must all try to anticipate how a jury is likely to react to the facts as they first hear them. Despite an admonition to maintain an impar-

tial posture, all of us react initially upon hearing a story told. Where is the "white hat" in that bloodstained saga on a snowy night?

Will the loss of a leg, a pregnant wife, and a marginal academic background make the plaintiff an automatic recipient of that first positive response when the facts are heard? Will any juror caught in that moment of uncontrolled horror when a vehicle is no longer responsive to his own direction close

their mind against any assault upon the beleaguered nun with who's own status as a 'victim' of

circumstances they immediately identify? Not even twenty-five years of trial experience form the basis for definitive prediction of a juror's reaction. Yet. it is the contemplation of those considerations which must precede the commencement of the deposition and the approach to the witness.

4. Preparation of the Witness is the Most Important Part of the Deposition Process.

This simple and universally acknowledged maxim requires a full understanding of the methods required to implement its effectiveness. Every lawyer must recognize that every witness en-

ters the deposition procedure with some level of apprehension. Since most witnesses are undergoing

their first entry into the process, the preparation time is critical to the confidence building project which underlies the lawyer's task.

At least an hour and a half to two hours is required for all but the most basic of depositions. While the content of preparation is the understandable focus, the explanation of the process is an equally important undertaking.

That preparation should consist of a full explanation of precisely what is going to happen, who will be in attendance, where it will occur, who will be present. and what is expected to be accomplished. It is correctly said that almost all cases are won or lost in the deposition phase of litigation.

Given the overwhelming number of cases which settle, the deposition is truly often the only oppor-

tunity the witness has to express a point of view. There are a number

of goals to be accomplished by the preparation.

A. Giving the witness confidence in their ability to effectively [be their own advocatel communicate themselves as well as their position.

B. Assisting the witness to remember events and factors which

are of importance and which have been more recently the subject of a lawyer's review of the accumu-

lated documents, medical records, or other necessary supporting

data.

C. Actually taking the witness through a question and answer session which allows foran understanding of the process and an initial articulation of what the witness wishes to state accurately.

D. Evaluating and anticipating areas of weakness with a view towards formulating honorable and accurate responses

which are con-

sistent with the witness's interests.

E. Establishing by manner of testimony and appearance of the witness an atmosphere of credibility which will reflect favorably upon the witness and require of the questioner a favorable report of the witness's ability to persuade a jury.

F. Providing the questioner with sufficient information, as well as a favorable impression of the witness, which will permit an early evaluation of the rights and responsibilities with a view towards expediting progress of the case and its ultimate resolution.

G. Constantly understanding that the witness's exposure at deposition is probably the only time, prior to trial, in which an opportunity to evaluate the strength of testimony before a jury will be presented. That impression will bear heavily upon an evaluation of the case as to value with all of its bearing upon the possibilities of settlement or trial.

Remember that 'preparation' includes providing the witness with an understanding of the underlying motivations which a jury may bring to an evaluation of the facts. It means explaining how a jury could rationally accept the position of your opponent. It requires an understanding that an

effective advocate must recognize the strengths and weaknesses in every position and that an effective witness must testify in that same context if true credibility is to be established. Even that young man who wears a prosthetic device borne of the night of tragedy will harbor a cavern of understanding within his intellect for the plight of the woman whose vehicle struck him. As the injured and innocent plaintiff, he may wish to sublimate that reality. To permit him to do so in the context of his manner of presentation and his recitation of the facts will only conflict with what jurors will also understand and so separate him from their interest in identifying with his plight.

5. Stay Out of Verbal Conflict With Your Adversary.

Only the court reporter profits from endless dialogue between counsel. When an objection is made, and a witness instructed not to respond, there is truly nothing more to be said by counsel. The procedures for certification of a question are well understood.

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Counsel should courteously agree to those procedures without the requirement that each question invoke the procedural waltz which the statute provides. The most appropriate response simply indicates that the lawyer has given the advice and believes it to be accurate. If it is not. a judge will say so.

At the same time, however, common courtesy and a desire to expedite the litigation process should prompt a respectful inquiry from counsel of the questioner to determine the stated rationale for the question or area of inquiry. If the rationale seems even remotely ac-

ceptable, serious consideration should be given to allowing the inquiry with the understanding that all rights to object at time of trial have been appropriately reserved.

The scope of discovery is broad and that mandate should be respected.

Endless and acrimonious discussion among counsel serves no purpose. The atmosphere can become so charged as to render the witness even more vulnerable to lapses of judgment and recall despite the best of preparations.

For reasons which have never seemed apparent, actual circumstances in which there ale truly no villains but which call for the resolution of rights and responsibilities too often produce an aura of

be a more effective opponent should not be augmented by witness's own counsel. This is still an adversary process. The adversarial reality must be constantly balanced against the desire to provide as much information as possible in order to achieve a reso-

lution of rights without trial.

If counsel is aware of a clear error made by the witness in the course of testimony, an obligation may then appear to correct the record immediately. Doing so is frought with hazard unless counsel is very certain that the witness will fully understand the error involved and can correct it. It is appropriate, and often essential. that an interlude be taken in a deposition for counsel to confer with the client/witness. While opposing counsel may comment upon such an occurrence. jurors seldom penalize a lawyer for exercising a right which is essential to the protection of a client/witness's interest. Nonetheless, those circumstances should occur rarely. The

frequency with which they occur may well accurately reflect upon the adequacy of the preparation for the deposition.

It is too often said that when a witness makes a mistake, they have lied. More often than not there has been a simple failure of recollection which is converted into an opprobrious act because of the litigation context of the testimony. Because of that reality, it is incumbent upon counsel to undertake the quality of preparation which will avoid, as mucb as possible, the possibility of innocent error. All too often the client's failure of recollection is truly a reflection upon the lawyer's failure to have anticipated or adequately reviewed the potential subject matter.

CONCLUSION More can be said, and should be, about the subject of depositions.

Questions should be short and intelligible; continuity of questions should be maintained unless

ATTENTION ATTORNEYS

acrimony between counsel which

is not supported by the underlying facts and need play no role in accomplishing an effective advocacy.

6. Do Not Examine Your Own Witness Unless it is Absolutely Mandatory The opportunity to engage in re-cross-examination almost always serves as an avenue for addi-

tional hostile questioning of subject areas which have either been overlooked or seemed less important at the time than they may well have been. The function of providing a witness for deposition is not to provide the questioner with an endless opportunity to peruse every conceivable aspect of one's case. Unless a judgement has been made that the development of a topic is essential at time of deposition in order to properly protect or project the witness's rights, the opportunity of the questioner to 170/Arkansas Lawyer/October 1984

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there is a conscious desire to test recollection by avoiding continuity of sequence of events. [The manner of questioning should be reflective of the type of witness, the level of anticipated hostility, the object which the questioner has in mind; etc.] But this brief essay is not meant to be an exhaustive examination of the deposition process. Rather, one hopes that a sense of the importance of the deposition process has been communicated which will encourage every lawyer to treat the deposition as a unique experience for each client rather than a routine which must be included in the development of every case. As a profession, we legitimately criticize other professions for treating as routine the individual responsibility they have to their patient or client. All too often we see that the true definition of 'neglect' is a dulled appreciation of the individual's rights by those who have undertaken to render a service for a professional fee. Lawyers are not immune from that fossilization. We are required to have the energies necessary to give each client the benefit of an individual representation which focuses upon the specific problems that each case brings to a lawyer's desk.

The resolution of the rights which arose on that snowy night will probably occur in the context of settlement. How a jury would have reacted to the conflict of unintended acts which produced so catastrophic a result will probably never be known. How effectively each of the clients is represented will almost be entirely determined by the quality of the witnesses during their depositions and the lawyer's judgment as to how jurors will react to them, to what they have said, and to the way they have said it. We all know that well over 90 percent of our cases are resolved by way of settlement.

What we must also recognize is that the accomplishment of an advantageous settlement is as much a result of a sensitive appreciation of the necessary tactics and strategies of trial, as reflected in the deposition process, as are those skills when employed before a jury.

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Generations in the Law: A Series

The Daggetts

of Eastern Arkansas One of the oldest and most prominent of the lawyering families of Arkansas is surely the Daggetts of Marianna. For more than a cen-

tury the Daggetts have practiced law in Eastern Arkansas and have been among the leaders of the legal profession in Arkansas.

by Robert R. Wright

Four of the seven current mem-

bers of the Daggett law firm are descendants of John Mayhew Daggett, who was sent by the United States Land Office to Marianna in 1873 to establish and or-

uate of Brown University and the founder of the firm, was admitted

ganize the land records for the

to practice in 1874 in the first term

newly formed Lee County. These four descendants are W. H. Daggett and limason J. Daggett, grandsons of John Mayhew Daggett, and Jesse B. Daggett II and Doddridge McCulloch Daggett, great-grandsons.

John Mayhew Daggett, a grad- '

of the Lee County Circuit Court.

Because Lee County was a new county which had been carved out of four adjoining counties, John M. Daggett was one of its first citizens and his law firm literally grew up with the county itself. In 1879, John M. Daggett married Olive May Anderson, the daughter of a wellknown planter in Phillips County.

The children of their union were Jesse B. Daggett, Charles Eben Daggett, Maxcy D. Daggett, Amelia Daggett and Olive Daggett.

When they were very young men, Charles E.. Jesse B. and Maxcy Daggett went to Avard, Oklahoma, to protect certain Marianna investments in town lots in that newly admitted state.

While in that small town in Cherokee country, Charles "Eben" Daggett, although without a formal legal education, studied for and took the Oklahoma bar examina-

Editor's Note: Robert R. Wright is Donaghey Distinguished Professor of Law at the University of Arkansas Law School at Little Rock. A graduate of the University of Arkansas, Duke University and the University of Wisconsin, he has served on the law faculties at both Fayetteville and Little Rock. He was dean of the University of Oklahoma College of Law, and has served on the faculties of the University of Iowa as a visiting

professor and the University of Cincinnati as a visiting distinguished professor.

In/Arkansas Lawyer/October 1984

tion in 1908. His performance was noted in a letter from the chair of the state bar admissions commission of Oklahoma to Judge H. N. Hutton of Marianna, the presiding judge of the first judicial district of Arkansas: "Mr. C. E. Daggett of Avard, Oklahoma, has just been examined in connection with a class of 51 by this Commission for admission to the Bar of the Supreme Court.

His grades were the highest in the class. The examination embraced sixteen subjects and I examined his papers on most of the subjects. They were exceedingly good and showed a strong and accurate grasp of the fundamental principles of the law. I was much impressed with the clearness and accuracy with which he expressed himself, and it is my opinion that he possesses unusual ability as a lawyer.

His papers possess extraordinary merit."

The Oklahoman expressed regret that his state was about to lose Eben's services to the Bar of Arkansas.

Jesse B. Daggett was admitted to the Arkansas Bar in 1908, the same year that Eben Daggett passed the Oklahoma Bar and the same year that John Mayhew Dag-

gett died. Each one of John's lawyer sons would prove to be a formidable lawyer in his own right.

Jesse B. Daggett was particularly noted for his knowledge and ability in the field of property law.

His particular forte related to problems which arose from the per ambulations of the Mississippi and Arkansas rivers. Here, of course, we come in contact with questions pertaining to accretion, avulsion and reliction-<rnd with the evidentiary difficulties associated with such cases, including the testimony of foresters, river pilots, soil scientists, potamologists and lay witnesses and proof derived from river charts, which evidence changes in navigation, and from various land maps, plats and photographs. The title to such land and the riparian rights involved were the source of constant litigation involving such giants of the lumber industry as the U. S. Gypsum Company. the AndersonTully Company, the Chicago Mill and Lumber Company, and the Grief Brothers Cooperage Corporation. Other involved in this litigation included George B. Cracraft, Sr.. of Helena (the father of Chief Judge George B. Cracraft, Jr. of the Court of Appeals), Lamar Williamson of Monticello, and W. H. Daggett (one of the sons of Jesse B. Daggett). Jesse B. Daggett was also the father of the types of laws which currently govern the creation and operation of drainage districts in Eastern Arkansas. The St. Francis Levee District is a major

example.

Jesse B. Daggett had two sons who became members of the firm, W. H. Daggett and Jimason J. Daggett. He also had a daughter, Jessamine Daggett Gist.

Charles Eben Daggett devoted much of his practice to the defense of personal injury suits. Much of this involved his representation of the Missouri Pacific Railroad Company, which was represented by the Daggett firm from 1917 to 1981. such representation ceasing im-

mediately prior to the Mo-Pac merger with Union Pacific and the retirement of )imason J. Daggett as the district attorney for the railroad. This continuous representa-

tion of the Missouri Pacific for sixty-four years may have given

the Daggett firm more seniority

than any other attorneys in the railroad system. John L. Daggett, the son of Charles Eben Daggett, and W. H. Daggett also were involved in this railroad litigation, with )imason Daggett succeeding W. H. Daggett as district attorney.

Active in bar association affairs, Charles Eben Daggett served as president of the Arkansas Bar Association during his

the Supreme Court; John T. Williams. who is retired from active practice but serves "of counsel" to Friday, Eldredge & Clark of Little

Rock (formerly Smith, Williams, Friday & Bowen); and Ronald A. May. a senior partner in Wright,

Lindsey & Jennings of Little Rock.

Amelia Daggett, sister of Charles E. Daggett and Jesse B. Daggett, married Griffin Smith,

years of active practice. This was

who served for many years as chief

in 1923, when he was 38 years old, the youngest man ever to hold that position. His son, John L.. served as president of the Junior Bar Association of the state bar in 1940.

Eben was also a delegate to the 1917-18 constitutional convention, and his proposals included a unicameral legislature and the use of the initiative and referendum for local legislation. The proposals went the same way as the proposed constitution. however.

Eben Daggett died in 1954.

Since the death of Jesse B. Daggett in 1963, his sons, )imason J. Daggett and W. H. Daggett, have carried on the family tradition and have built upon the foundation provided them by their forebears.

Both have been engaged in a general civil practice and have earned the respect of their fellow

justice of the Supreme Court. Their son, Griffin Smith, and his son, Griffin Smith, Ir.. practice law in Little Rock. Thus, the Daggett family connection extends into Central Arkansas as well. Griffin Smith, of course, is a multi-talented individual who is not only the author of a form book but also has been for many years the moving force behind the Gridiron and the author of numerous Gridiron shows.

Olive Daggett, another sister of Jesse B. Daggett and Charles E. Daggett, is the mother of Daggett Howard, a senior member of the law firm of Howard, Poe & Bastion of Washington, D.C .. and a former general counsel of the Federal Aviation Agency and associate general counsel of the U. S. Air Force.

How far into the future the line of Daggett lawyers will continue remains to be seen, but the younger Daggett lawyers, Jesse B. Daggett II and Dodd Daggett, each have three children. Jesse's daughter, Susan Daggett, is a junior at Mount Holyoke in Massachusetts and has expressed the intention of becoming a lawyer. If she does, she would be part of the fifth generation of lawyers in her immediate family.

In addition to practicing law, the Daggett family, both lawyers

practitioners as outstanding ad-

vocates. !imason Daggett graduated from the University of the South at Sewanee, Tennessee, and the University of Arkansas Law School. W. H. Daggett graduated from the University of the South and received his legal education at Boston College and Yale Law School. None of W. H. Daggett's children became lawyers, but !imason's two sons, Jesse B. Daggett II and Doddridge M. Daggett, are graduates of the University of Arkansas Law School and are members of the firm. Other current members of the firm are

James R. Van Dover, Robert J. Donavan and David W. Cahoon. Other lawyers who have been associated with the Daggett law firm over the years include). L. (Beck) Shaver of Wynne, a past president of the Arkansas Bar Association and former lieutenant governor of

Arkansas; D. S. Plummer, deceased, a former circuit judge; F. P. Fitzsimmons, long deceased, a law partner of Chief Justice Griffin Smith at the time of his election to

and non-lawyers. have been heav-

ily involved in the Episcopal Church. (This has been natural. perhaps, since the family traces its Anglican lineage back at least to 1526 to Richard Doggett of Suffolk, England, who spelled his name with an "0" instead of an "a".) Active in St. Andrews Parish in Marianna, the children of Mr. and Mrs. John Mayhew Daggett built a parish house which was dedicated to the memory of their parents in 1951. John Mayhew Daggett was one of the founders of the October 1984/Arkansas Lawyer/173

parish and served for many years as secretary of the Diocese of Arkansas under Bishop Henry Niles Pearce. W. H. Daggett, in particular. has served in many capaci-

ties both in his parish and diocese and as a member of the Board of Trustees of the University of the South.

The next Daggett lawyer, as has been said, will be part of the filth generation of Arkansas lawyers in the family. Actually, for over two hundred years going back to 1783, there have been members of the American legal profession in

every generation of Daggetts.

They have been a great credit to the legal profession, and the Bar of Arkansas in particular has been the fortunate recipient of their abilities and dedication.

....

...

For good measure, here is a personal postscript about the lawyers Daggett. 1had, of course, known of their abilities from my own early law practice in Forrest City in the late 1950's. But in the 1960's, when 1 was on the faculty of the law school in Fayetteville, I received a visit from a former student of

mine whom 1 had taught in political science while 1 was completing my law degree. He told me that he was writing a book and asked me about a variety of things, including some of a legal nature.

One thing he asked about was families of lawyers-famous "lawyer names" in Arkansas. 1 gave him a good number, all of which would be familiar to the reader, but the one that he liked was Daggett, and part of it came out this way in the book: ..... Lawyer Daggett can prove the ownership of the gray horse. He will come alter you with a writ of replevin.

"All right, now listen very carefully as 1will not bargain further. 1 will take the ponies back and keep the gray horse and settle for three hundred dollars. Now you must take that or leave it and 1 do not

saddle and you get out of a costly lawsuit as well. It will go harder if Lawyer Daggett makes the terms as he will include a generous fee for himself."

"Lawyer Daggett! Lawyer Daggett! Who is this famous pleader of whose name 1was happily ignorant ten minutes ago?" .....Lawyer Daggett is the man who forced [the Great Arkansas River, Vicksburg & Gulf Steamship Company] into receivership, said I. "They tried to 'mess' with him. It was a feather in his cap. He is on familiar terms

with important men in Little Rock. The talk is he will be governor one day."

"Then he is a man of little ambition," said Stone hill. "incommensurate with his capacity for making mischief.

1 would rather be a county

much care which it is."

1 said, "I am sure Lawyer Daggett would not wish me to consider anything under three hundred and twentylive dollars. What you get for that is everything except the

road overseer in Tennessee

than governor of this benighted state. There is more honor in it." (Charles Portis, True Grit, pp. 34-35 (1968).) 0

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Law, Literature & Laughter

What's in a Name Change?

Editor's Note: "Law, Literature, & Laughter" is the brainchild of Victor A. Fleming, a member of the Hoover, Jacobs & Storey firm in Little Rock. Vic has been a member of the Arkansas Bar foundation Writing Awards Committee since 1981. His legal and nonlegal writings have appeared in newspapers, magazines, and legal periodicals. Readers are invited to share humorous experiences with Vic for exposition in future issues.

BY VICTOR A. flEMING My good friend T. S. Day of Arkansas Post has become interested in the law of name changes.

His interest stems from the fact that several of his family have humorous, if not pitiable, name situations. He has a brother, R. B. "Sonny" Day of Lake Village.

Sonny's wife is a twin from Little Rock, hai\ing from the family of a wealthy doctor by the name of Rainey.

Why Dr. and Mrs. Rainey named their twin daughters Ima and Yura with no middle names is anyone's

guess. T. S. says they are family names. Sonny married Ima. Ima's sister married a fellow by the name of Orville H. Knight of Waycross. Georgia.

To go with her unusual name,

Ima has certain Gracie Allen characteristics, notably the screechy voice and a brain that doesn't always catch the point of another person's remarks. T. S., lapsing into an impersonation of Imo, tells the story of a dialogue with a butler at a fancy party (the butler had to check the guest list).

" 'Name, madam?'

" 'Ima Rainey Day. We're invited.' " 'You're a what?' " 'Oh, no, you must mean my sister, Yura Rainey Knight, in Georgia.' " 'I'm a what. ma'am?' " 'Rainey Day. Rainey Day.' " 'But it's a sunny day.' " 'Really? My husband's name is Sonny Day, too.' " Suffice it to say there are events such as the foregoing that have aroused in my friend an interest in the law of name changes.

The basic law of name changes is very simple: One may change her name without formal legal proceedings by merely adopting another name. Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978); Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952). True, there is a law expressly addressing the name change concept, Ark. Stat, Ann. §§34-801-03, but Judge Fogleman, in the Carroll case, said that "little attention need be given [it]." A great deal of attention should be given the Carroll case, however. if you have a case where a parent wants to change the name of a minor child.

Presumably, the first name change is that which is recorded in Genesis 17, where God told Abram ("Exalted Father") that he would henceforth be known as Abraham ("Father of Nations"). Shortly thereafter, in the same chapter of the Bible, God changed Abraham's wife's name from Sarai to Sarah ("Princess"), when it was decided that she would bear children after all. There are virtually no Biblical laws addressing name change, so

perhaps God and Judge Fogleman feel the same way about the need for a statute in this respect.

I tried to explain to T. S. the ease with which a name change could be accomplished. Like several clients before him, he could not understand the common law about adopting a new name. Also, he was unimpressed with the Biblical history I supplied him.

"I want a court order." he said.

"A judicial declaration that Ima ain't Imo anymore. As far as Yura

is concerned, well that'll just have to be Orville's brother's problem."

Assuring him that I would follow statutory procedure for a court order, I asked T. S. what Ima and Sonny thought about Ima getting a name change.

"You think I ought to talk to 'em about it?" he asked. "I mean, do they have to know ahead of time?"

It is lucky I did not try to explain procedural due process to T. S. that day. I have not yet heard from Ima or Sonny about a possible name change.

0 October 1984/Arkansas Lawyer/175

IN MEMORIAM

JUDGE HARRELL A. SIMPSON, SR.

Judge Harrell A, Simpson. Sr. Former Circuit Judge Harrell A. Simpson, Sr., aged 71. of Pocahontas, died Monday, July 9, 1984.

As a special chancellor, Simpson ruled in November 1981. that the state's method of financing public schools was unconstitutional.

Judge Simpson was appointed a special chancery judge in Pulaski County in 1980 to hear the lawsuit challenging the state school finance formula. His 1981 decision, upheld by the Arkansas Supreme Court in 1983, said that the wide disparity in pupil expenditures among 371 school districts in the state was a denial of equal educational opportunity. A special legislative session was called in the fall of 1983 to enact a new state school aid formula and other educational reforms.

A native of Evening Shade, Judge Sim pson also served as a judge of the former 16th Judicial Circuit from 1955 through 1978. He earlier had served two terms as

prosecuting attorney and six

years as a deputy prosecuting attorney from the 16th District.

176/Arkansas Lawyer/October 1984

He was the son of the late James Monroe and Laura Harrell Simpson, members of pioneer Sharp County families. Judge Simpson attended Arkansas Tech University in Russellville and was graduated in 1938 from the University of Arkansas at Fayetteville School of Law. Judge Simpson served on the faculty of the National College of State Judiciary at the University of Nevada in Reno and as president of the Arkansas Judicial Council. which is composed of the state's circuit, chancery and appellate judges.

He was a member of the state Criminal Code Revision Commission which completed a draft of a new state criminal code in 1974 that was adopted in 1975. and chaired its substantive subcommittee.

Judge Simpson was a member of the Arkansas Bar Association for 30 years, and was a member of the American Judge's Association, and the First United Methodist Church.

He was the First Cub Scoutmaster in Pocahontas. was a Mason of the KCCH degree and was a pastchair of the March of Dimes.

He is survived by his wife, Mrs. Jeanne Belford Simpson; a son, Harrell A. Simpson, Jr., of Lake Havasu City, Ariwna; a daughter, Anne Belford Simpson of Little Rock; and four grandchildren.

L. V. Rhine L. V. Rhine, aged 89, of Paragould. died Tuesday, July 24, 1984.

A native of Nebraska, Rhine was a former municipal judge.

owner of the Greene County Abstract Co.. and partner in The Big Picture-the state's first daily offset newspaper.

Rhine moved to Paragould in 1927 and was its high school principal for three years. He entered a

law partnership with H. R. Partlow and later with his brother, H. C. Rhine.

The son of Fred and Netta Rhine, he held an Agriculture Degree from Kansas State University, studied law at the University of Missouri and received his law degree from Cumberland University at Lebanon, Tenn.

He planted and cultivated the Rhine Peach Orchards south of Paragould and for many years shipped fruit throughout the MidSouth.

Rhine was a member of the Arkansas Bar Association for 30 years and was also a 32nd degree Mason, a member of the Exchange Club and a 50-year member of the First Baptist Church.

He served as president of the Chamber of Commerce during its work to secure the Crowley's Ridge State Park.

Survivors are his wife, Olga; two sisters, Myrl Mueller of Paragould and Margaret Sharone of Mathews, Va.; and, a brother, Fred A. Rhine of Augusta, Kan.

Bob Bailey, Jr. Bob Bailey, Jr., aged 71. of Russellville, died Tuesday, July 17, 1984.

Bailey served from 1949 to 1955 as a state senator and from 1947 to 1949 as the Russellville police judge. He was elected municipal judge in 1966.

A member of the Arkansas Bar Association for 21 years, Bailey served on the Legislation and Auditing Committees.

Bailey was a veteran of World War II, a member of Disabled American Veterans, Veterans of Foreign Wars, Scimitar Shrine Temple, the American Legion and was a 32nd degree Mason.

He was also a member of Little Rock Consistory and the Associated Reformed Presbyterian Church.

I

l

Survivors are his wife, Mrs.

Margaret L. Bailey; a son, Bob Bailey, of Little Rock; and a grandchild.

Edward Riddick Riffel Edward Riddick RiffeL aged 72. of Little Rock, died Tuesday. May 22, 1984.

Riffel for 20 years assisted the City of Little Rock in acquiring land for expansion and road rightof-ways.

He did the legal work for buying the Wilbur D. Mills Freeway (Interstate 630) right-of-way and for the widening of Hayes Street. which became University Avenue. He

also was the city's legal representative in several annexation matters.

Born in Little Rock. he was the son of the late J. K. and Maude Riddick RiffeL He was a graduate of Little Rock High School and a 1934 graduate of Hendrix College in Conway. He received a law degree from Georgetown University School of Law in Washington. D.C. In 1940. he was named secretary of the sta'te Workmen's Compensation Commission.

He was a commissioner in 1946

and 1947. and was an appointed Pulaski County chancellor from 1956 to 1958.

Riffel was a World War II Navy veteran and past president of the Family Service Agency.

He was a member of the Arkansas Bar Association for 27 years and a member of the Pulaski Heights United Methodist Church.

Survivors are his wife. Molly Gordy Riffel; a son, Ed R, RiffeL Jr., of Conway; a daughter. Molly R. Parrish. of Washington, p.C.; a brother. Jon B. RiffeL of Pacific Palisades. Cal.; and two grandchildren.

Justice Lyle Brown Justice Lyle Brown, aged 75. of Hope, died Tuesday, May 1. 1984.

Justice Brown served as an Arkansas Supreme Court associate justice from 1967 to 1975.

As an associate justice, he voted in favor of a suit challenging the

constitutionality of a 1928 state law prohibiting the teaching of evolution in public schools. The Court upheld the law, with his the only dissenting vote to be cast.

The United States Supreme Court overturned the decision a year

later. ruling that Justice Brown was correct and the law was unconstitutional.

Before his election to the Supreme Court. he served as judge of the Eighth Judicial Circuit for 14 years. He was also prosecuting attorney for the circuit for four years

and mayor of Hope for four years.

A native of Popular Bluff. Mo ..

Justice Brown was a 1931 graduate of Henderson State University in Arkadelphia. and was honored as a distinguished alumnus at the University in 1977.

While at HSU. he was president of the student body, a member of the debate teams for four years. a cheerleader for the Henderson Reddies and organized the school's first band.

Justice Brown attended Southern Methodist University in Dallas, where he received a master's

degree. He attended Louisiana State University for a doctorate. then returned to Henderson as an instructor of history and dean of men.

He served two terms in the state House of Representatives from Clark County before moving to Hope in 1942.

He was a member of the Arkansas Bar Association for 30

years. and a member of the Official Board of First United Methodist Church and a past-president of the Century Bible Class.

Survivors are his wife. Vivian

Brown; two daughters, Lyla Lockhart, of Hope, and Phala Riffel of Conway; two sisters. Velma Ormsby of Poplar Bluff. Mo .. and Mrs. Lucien Fowler of Kennett.

Mo.; and five grandchildren.

Louis Ingram Watts . Louis Ingram Watts. aged 68, of North Little Rock. died Sunday.

April 29. 1984.

Watts, a native of Monticello. was a retired Air Force officer, a former state representative and a

retired attorney for the state Social Services Division.

The son of Robert Edward and Vertie Mae Shook, Watts was an alumnus of the University of Arkansas School of Law and served in the state House of Representatives from Drew County from 1947 to 1950.

He was a member of the Arkansas Bar Association for 13 years

and served on the Constitutional Reform and Real Estate Committees.

He was also a member of the Retired Officers Association and the American Legion.

Survivors are his wife, Esther

Hardcastle Watts; two sons. Louis W. Watts, of Fayetteville, and Michael R. Watts. of Arizona; a daughter, Vicki L. Olson. of Dallas, Tex.; two brothers, William J. Watts. Jr.. of North Little Rock; two sisters, Marie Sullivan. of Memphis. and Hazel Allen. of Monticello; and four grandchildren.

Charles T. Richardson. JI. Charles T. Richardson. Jr.. aged 58. of Walnut Springs, Texas. died Tuesday. January 3, 1984.

A native of Smackover, Richardson was the son of the late Charles T. and Arrean (Bratton) Richardson. Sr. He graduated from law school in Nashville. Tenn .. and practiced law in Texarkana before entering

the U.S. Army and serving during World War II and the Korean War. After being discharged from the service, he attended the University of Texas at Austin, receiving a Doctor of Jurisprudence Degree and a Master's Degree.

Richardson was an attorney with the El Paso Natural Gas Company for 13 years before retiring and moving to Walnut Springs in 1973.

He was a member of the Arkansas Bar Association for 12 years. and a member of the Walnut Springs First Baptist Church and Walnut Springs Lions Club. He served for several years as president of the Walnut Springs School Board.

Survivors include his wife, Sue Bonnie Richardson; a son. Charles T. Richardson III of Wa.ln u t Springs; and a brother. B. T. Richardson of Pittsburgh. Penn.

0 October 1984/Arkansas Lawyer/177

I

A rom the 18705 to the 19209. the period covered by this article.

Arkansas' developments for women in

the legal prolession mirrored those at the national level. This was a time when altitudes toward and opportunities lor women in public and prolessionallile altered signilicantly throughout the nation. In Arkansas the period opened with legislation which excluded women from admission to the bar and closed with the decade lollowing their 1917 admission. This article, after brielly summarizing nationaltrends during this time, will focus on the entrance of women into the Arkansas legal profession.

National Trendâ&#x20AC;˘.

1870s-19208 For women who sought admission to the professions before the late 19th century, the obstacles which they faced must have seemed insurmountable. In his concurring opinion of 1873 denying Myra Bradwell's suit for a license to practice law, United States Justice Joseph P. Bradiey voiced some key elements of the dominant cult of domesticity.

In this case of Bradwell v. Dllnola. Justice Bradley rellected contemporary thinking when he wrote that ... "civil law, as well as nature herself. has always recognized a wide difference in the respective spheres and destinies 01 man and woman. Man is. or should be. woman's protector and delen-

178/Arkansas Lawyer/October 1984

I

~

Record of the Past

By Frances Mitchell Ross der. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization. which is founded in the divine ordinance. as well as in the nature of things. indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony. not to say identity. of interests and vie'!'s which belong or should belong to the family institution. is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband ... The paramount destiny and mission of woman are to fulfill the noble and benign office of wife and mother.

This is the law of the Creator:" It was widely thought that women, and particularly married women, should follow private pursuits, not public work; their lives were defined by duty to home and family-the ideology which governed women's lives during much of the 19th century.

Restricted by the values of the domestic cult, women seeking a legal career battled other attitudes which also hindered them. First. the legal profession was seen as an especially public occupation because of the likelihood of court room litigation. This fueled the private life/public career controversy.' Second. cldmission to professional schools. fast becoming the standard training ground for the career oriented. was difficult for women to achieve in all professional areas. The expectation that

women were destined to be household managers was reason enough to discourage advanced study. In addition. it was common wisdom in the nineteenth century that excessive education would damage the female reproductive system and would impair women's ability to fulfill their destiny-the bearing of children. Higher education. according to this line of thinking. was not only unnecessary but could be quite dangerous. At most, it was thought. education for women should be limited in scope and complexity.' Finally. English common law, the legal tradition of most of the states, prohibited the admission of women to the bar.

Each state was consequently required to proVide its own remedy before it could admit women to its practice.' In the 18708. barriers to women's admission seemed all encompassing, resting as they did on arguments drawn from religion, domesticity, biology and existing legal doctrine.

At the same time, however. cracks in the fabric of the domestic ideal appeared and became noticeable over the next few decades. Already during the 18708 and 1880s a few women in some states had gained admission to their state bars either as a result of court decisions or through legislative acts. Even the United States Supreme Court admitted a woman to its practice in 1879. By the 1890s some law schools had begun to admit women' and by 1910, 40 states had admitted women to the practice of law.'

"You have let the women vote. and you might as well let them practice law." said Representative Ellis of Randolph County during a roll call vote admitting women to the bar in 1917.

The early victories were often won because women mounted successful campaigns which led to the reforms !hat admitted them to the bar.' Also important was a widespread reform movement which began around 1900. Reforms of this "Progressive Era" challenged old assumptions and led to significant changes in many institutions.' The status of women concerned many reformers and the era saw the revival of a women's rights movement. While goals of the women activists varied, important for many of them were suffrage, broader educational opportunity and increased access to the professions.' Although Progressivism peaked around 1917 and the women's movement lost momentum after the passage of the 19th Amendment." several important rights for women had been won by

October 1984/Arkansas Lawyer/179

late 1920. They included the right to vote in federal elections and access to the legal profession in all of the states except one."

From the 1920s to the 1960s. em路 phasis on domesticity reemerged.

Limited career opportunities also discouraged women from entering the professions and economic crisis and war of the 1930s and 1940s were further deterrents.

Female admissions to the legal profession declined during those decades and it was not until the 1960s that that pattern began to reverse. U

Arkansas Women in Law From the 18708 to the I920s, AIkansas' development was a microcosm of the national picture. In 1873, the year of Justice Bradley's opinion, the AIkansas legislature passed Act 88, which read. in part, that "every male citizen of the age of twenty one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled to practice in the courts of this state."" A later bill to amend the law by omitting the word "male" failed by one vote," and until 1917, women were prohibited from admission to the bar of AIkansas. Arkansas adhered to its exclusionary law longer than most of the other states. IS The disabilities which the law presented were dramatized by the experiences of three Arkansas women, Lizzie Dorman Fyler of Eureka.Springs, Clara McDiarmid of Little Rock, and Erie Chambers of Little Rock. Each of these women was trained in the law although none was entitled to full privileges of attorneys under the law. Fyler read law in Eureka Springs," McDiarmid studied law in Michigan before moving to AIkansas," and Chambers in 1912 became the first woman graduate of the University of AIkansas Law Department, then located in Little Rock."

Of the three, Fyler was most nearly successful in pursuing a legal career despite the law. In 1882, Mrs. Fyler applied for and was denied admission to the bar of Arkansas. In May of 1885, however, Judge Pittman of the fourth district notified her that he had voluntarily decided to permit her lBO/Arkansas Lawyer/October 1984

Clara McDiarmid Reprinted with permission of the Arkansas Secretary of State.

to practice under the Constitu路 tional provision which permits anyone to appear in court in person, by attorney or next best friend, and that under the latter title all the privileges of an attorney would be granted."" This arrangement, according to Mrs. Fyler, met with approval of the entire bar and demonstrated "progress in public spirit."" The year before, she had applied for membership in the AIkansas Bar Association but was denied because of her sex." Membership requirements stipulated that members must be licensed to practice in Circuit Court," a provision which ob路 viously excluded women. She was none the less invited to attend the Association's next annual meeting" and was also asked to deliver an address on "Women at the Bar." Poor health prevented her attendance" and she died late in 1885.

By the time of her death she had assisted in several suits and had nearly completed her defense in a murder case.:/:5 Clara McDiarmid practiced law in Kansas before she and her husband moved to Little Rock during the Reconstruction period. She found that her move cost her two very dear rights, the right to vote in school elections and the right to practice law. She devised a creative response to each problem. As a disfranchised voter, she organized the Equal Suffrage Association in Little Rock and as a disbarred attorney, she offered

free legal service to women. I I Tennessee native Erie Chambers began her legal education while employed as a stenographer in the Little Rock law firm of Moore.

Smith and Treiber. After graduation from the University of AIkansas Law Department, she attended the University of Chicago Law School and in 1913 was named Pulaski County Probation Officer.

She remained in probation work until 1917 when she began an affiliation with the Arkansas Tuberculosis Association which lasted until her death in 1941. She served as executive secretary of the Association continuously beginning in 1919. From 1923 to 1925 she also represented Pulaski County in the AIkansas legislature, the first female representative elected from the county and the first woman in the state to be sworn in by the House of Representatives. While she never practiced law, she applied her legal training to her legislative work.

Especially noteworthy was a measure she successfully sponsored" which abolished the husband's right of courtesy in a wife's estate. 28 At the time the measure passed, it was particularly newsworthy since it altered important property rights. 28 The experiences of these three persons illustrate the obstacles which faced women who aspired to the law before 1917. Fyler and McDiarmid possessed the desire for a career in the law and the requisite training to practice. Both women were also remarkably willing to persevere in the law in spite of the 1873 prohibition, while Chambers utilized her knowledge to promote legal reform. Before 1917. few other women were willing to pursue the law against such obstacles.

In 1917, at the peak of the progressive reform era, the Arkansas legislature again acted on the issue of women attorneys, this time to lift the 1873 ban. The legislature had also recently granted women the right to vote in primary elections,30 responding to the mounting state suffrage campaign." While the bill which admitted women to the bar" passed with a healthy majority, at least one legislator greeted the change with less than full enthusiasm.

During the roll call vote, Representative Ellis of Randolph County, who surprised his colleagues with his affirmative vote, observed with resignation that "you have let the '10men vote, and you might as well let them practice law,un Once women were legally able to practice, it was almost a year before the first was admitted to the bar. The most likely explanation for the delay is that women had not yet prepared themselves for careers in the law. Adequate preparation became especially important in July of 1917 when the state Supreme Court instituted mandatory examinations as a

requirement for the licensing of attorneys. These exams, to be prepared by a court appointed Board of Examiners, had to be completed with an "average of 75% in all subjects" in order for the applicant to pass." This Supreme Court rule, coupled with the new law allowing women to practice, encouraged those who were interested in law to attend a law school before taking their exams.

Female enrollm'lnt at the state's only law school increased in keeping with the new opportunities and standards. Before 1917, for example, female attendance had been negligible at the two year Arkansas Law School in Little Rock which provided the only formal legal education in the state prior to 1924. This school. until 1914 known as the University of Arkansas Law Department but unconnected with the University after 1914," had graduated Erie Chambers and Katherine Burke who finished in 1915 and was the school's only female graduate in active practice in 1920. 30 A few other women may have graduated before 1917."

After 1917, female enrollments and graduates increased. Two women enrolled in the fall of 1917 for the class of 1919 and four women were in the class of 1920."

In the early years it was clear that women intended to take advantage of the new opportunities in the legal profeJsion. Indicators of increased interest came in the form of larger enrollments, close to 45 female graduates of the school by 1939," and over 100 women admitted to the bar by 1939. "Indeed, the decade of the 1930s had the

Grace Wallace

R. Lively

Goar Lyceum largest number of female admissions to the bar Defore the I970s, while the dramatic decline after the thirties" indicated that problems felt nationally were affecting Arkansas as well.

The two women who entered the Arkansas Law School in 1917 achieved records of distinction in their first year. R. Lively, who worked as clerk of the State Highway Commission, was assistant editor-in-chief of Ark Law, the school annual. She made the highest grades in the Junior Class and was the first woman elected president of the school's Goar Lyceum, a public speaking and moot court forum for the law students."She"presided with dignity and ruled with an iron hand,"" and of her election, her contem-

poraries said that "The right of suffrage having been gran ted to women by the last Arkansas Legislature, it was quite appropriate that the Goar Lyceum, always a leader in things progressive, should have a 'Lady President.'

This honor fell to Mrs. R. Lively, who was elected President for the month of December, 1917, the first time in the twenty five years of the Goar Lyceum for a woman to hold the office of President .....

Grace Wallace, who was chief clerk and stenographer in a Little Rock law firm, was junior editor of Ark Law and Junior Class president." Wallace also served as secretary of the Goar Lyceum for the month of January 1918, a position which Lively had also filled in October of the previous year."

October 1984/Arkansas Lawyer/l8\

Alpha Delta Epsilon While women at the Arkansas Law School performed well academically and achieved honors and recognition from their peers, they were excluded from

to practice before the United States Supreme Court. She pursued her private practice, practicing chiefly in probate and chancery courts, until her father's death in 1927 when she retired from practice in

student fraternal organizations.

order to handle his large estate. 60

Two national men's legalfraternities existed, but when five women students applied for admission to one of them, Phi Delta Alpha, hoping to establish a women's chapter, they were denied because the fraternity did not admit women.

Since they knew of no national organization of women lawyers or women law students," the five women, who constituted the entire female enrollment of the school at the time, filed a petition in Circuit Court on March 13, 1920 to incorporate a women's legal fraternity.

Two days later the court granted a charter which permitted the establishment of the Alpha Delta Epsilon Law Fraternity." Its founders intended for the fraternity to become a national organization which would "unite all women lawyers in the strong bonds of a fraternity.""

Just as women law students demonstrated resourcefulness and competence, the women attorneys of the early years brought vigor, interest and capability to the profession. Their career interests were varied. Some chose private practice while others worked in offices of public officials. Several were also involved in professional association work. The women lawyers of this period built a record of achievement in the profession.

Virginia Darden Moose, a Morrilton native born in 1891. received her AB from Hendrix and her MA from Vanderbilt. She attended the University of Chicago' I and was a 1921 honor graduate from Arkansas Law School." The only woman in her class. she was Senior Class president, 63 and as a Junior she had co-founded Alpha Delta Epsilon." After graduation, Moose served as assistant attorney general for five years and was later chief deputy clerk of the U.S. Court, Eastern District of Arkansas. 65 A member of the Arkansas Bar Association beginning in 1922,66 she served as the Bar Association's vice president for the 6th Judicial District in 1936." She was the first president of the Arkansas Association of Women Lawyers 68 and was also a trustee of Hendrix College. 66 Little Rock attorney Ada Marett Carter. a South Carolina native. received her law degree from Arkansas Law School in 1926. She was admitted to the bar in the same year and practiced until her death in 1947. One of the few

Sarah Shields.

1st Woman Admitted to Bar Sarah Shields, a graduate of the Kentucky Law School with postgraduate work from the Cumberland, Tennessee School of Law, moved to Hope only a few months before her admission to the bar in January of 1918. Shields, Hempstead County's only woman attorney, passed her law examination at Prescott with a grade of 100," becoming the first woman in the state licensed to practice before the courts. 51 Shields practiced law in Hope prior to her marriage, after which she and her husband left the state. ~2

Mollie Aurelle Burnside, from EI Dorado, Arkansas, received her AB 182/Arkansas Lawyer/October 1984

<:;

Alpha Delta Epsilon founders: 1) Mary Blakeney. Little Rock. Ark.: 2) Virginia Darden Moose. Morrilton.

Ark.: 3) William Mary James. Ballinger. Tx.: 4) Helen G. Humphrey.

Little Rock. Ark.: S) Mollie Aurelle Burnside. E1 Dorado. Ark. degree from the University of Arkansas in 1911." a law degree from Arkansas Law School in 1920" where she co-founded Alpha Delta Epsilon. 55 and an LLB from Yale in 1925. She was admitted to the Arkansas bar in 1921. Burnside was active in the Democratic Party where she served as chairman of the Democratic Women's Club. 56 She also served as state director

women lawyers to devote her en-

and as regional director of the National Association of Women Lawyers. 51 Arkadelphia native, Lois Dale, moved with her family to Texarkana in 1902, her family's home from that time on. She graduated from Lindenwood College in Missouri in 1909. She later decided on law and completed her legal education at Tulane in 1920. Dale was subsequently admitted to the bar and practiced law with W. H. Arnold, Jr. of Texarkana before practicing alone. 56 She became one of the first women members of the state bar association when she joined in 1921. 59 She was appointed juvenile probation officer in 1922 and later became the first woman in Arkansas to serve as county and probate judge following her appointment by Governor Thomas McRae. The appointment won her Lindenwood's first honorary LLD. Dale was later admitted

tire time to law during this period. she served as deputy prosecuting attorney of the 6th Judicial Circuit of Arkansas. In that capacity she was in charge of domestic relations. 'O Like many of these women, others who entered law in these early years pursued their careers with diligence and determination.

As dedicated attorneys, they also participated in professional associations. Some made a conscious effort to work in organizations specifically intended to support women in the law. They demonstrated their ability to function in a profession which only a few years earlier had been closed to them and had been thought an inappropriate area for women to enter.

Through their work the women lawyers showed competence and resolve. They left a valuable legacy on which women attorneys have continued to build.

0

Footnotes n

Bradwell v. Illinois, 83 U.S. 130.21 Law, Ed. 442 1873. ~ Barbara J. Harris. Beyond Her Sphere: Women and the Professions in American History (Westport: Greenwood Press, 1980). 110-112. ) Ibid., 106.

4 Ibid, 110. .$ Ibid, 112.

• Larry Berkson, "Women on the Bench: A Brief History," Judicature 65 (DecemberJanuary 1982). 290. , Ibid.. 288-289.

• William L. O'Neill. The Progressive Years: America Comes of Age (N.Y.: Dodd. Mead. 1975). ix. ~ Ibid .. 81.

10 Harris. 117.118.

1I Berkson, "Women on the Bench: A Brief History," 290. Delaware's first woman

12

" It

U

II

11

U

II

20

II

22

n 24

2~ n

27

a a ao 31

3Z

n 3. a

lawyer was in 1923. Information on Oklahoma is unavailable. Hawaii admitted women by 1888, before it be~ came a territory of the United States and Alaska's first woman lawyer was in 1950. while it was still a territory.

Harris. 133-134. 140, 141, 174.

A,k. Acts IB73. No. BB. Sec. 760.

Little Rock. Arkansas Ladies' Journal.

November 28. 1885.

Berkson, "Women on the Bench: A Brief History," 290.

A. Elizabeth Taylor, "The Woman Suff· rage Movement in Arkansas." Arkansas Historical Quarterly. XV (Spring 1956), 19.

Lura Brown, On the Track and Off the Train (Little Rock: The Press Printing Co., IB92). 209.

Little Rock, Arkansas Democrat. January 10. 1941.

Little Rock. Arkansas Ladies' Journal.

November 28. 1885.

Ibid.

Proceedings of the Arkansas State Bar Association (Little Rock: 1884), 46. This publication will hereafter be cited as Proceedings with date and page number.

Proceedings. 1882, 10.

Proceedings. 1884, 46.

Little Rock. Arkansas Ladies' Journal.

November 28, 1885.

Little Rock. Arkansas Ladies' Journal.

December 5, 1885.

Taylor, "The Woman Suffrage Movement in Arkansas." 21. How active Mrs_ McDiarmid's business was under these conditions is not known. The suffrage as· sociation. organized in 1888, continued to thrive until Mrs. McDiarmid's death in 1899. Her death deprived the association of valuable leadership. and interest in su1frage work declined until new leader· ship emerged about a decade later.

Taylor. 21-26.

Arkansas Democrat. January 10, 1941.

Ark. Acts 1925 No. 149.

Little Rock, Arkansas Democrat. January 10. 1941.

Little Rock. Arkansas Gazette. February 28. 1917.

Taylor. "The Woman Suffrage Movement in Arkansas." 37·42.

Ark. Acts 1917. No. 361.

Little Rock. Arkansas Gazette. February 28. 1917.

Proceedings. 1917. 136-137.

Harrison Hale, University of Arkansas.

31

" U

.0

41

" 4~

u u 46 41

..

49

1871·1948 (Fayetteville: University of Ar· kansas Alumni Association. 1948). 184.

Ark-Law: Year Book of the Arkansas Law School. (Little Rock: Arkansas Law School. 1919-1920), II. This publication will hereafter be cited Ark·Law with year and page.

Arkansas Law School. "List of Alumni," Catalogue and Announcements for 1964.65 (Little Rock: 1965). This publication will hereafter be cited "List of Alumni." The manner in which the names are listed in the alumni records does not always make it possible to determine the gender of the individuaL A'k-Law. 1917-1918. pp.4Q.41; 1919-1920. pp.23-24.

"List of Alumni." The University of Arkansas Law School in Fayetteville. founded in 1924. graduated its third woman in 1939. Arkansas Democrat. De· cember 10. 1977.

Directory of Women Lawyers in Arkansas 1980.1981 (Arkansas Association of Women Lawyers 1980·1981). N.Y. Ibid.

Ark-Law. 1917-191B. 51.

Ibid .. 40.

Ibid., 51.

Ibid .. 41.

Ibid., SO. Little Rock, Arkansas Gazette. March 13.

1920.

A,k-Law. 1919-1920. 36.

Ibid .. 36. The success of the fraternity in achieving its goal has not been determined.

~o

Little Rock. Arkansas Democrat. January 28. 1918. Since the score merited reporting by the paper. it is probable that Ms. Shields' score was 100 on the entire exam, $1 Berkson, "Women on the Bench: A Brief History," 290.

52 Ruth Brunson. Letter, Little Rock. Arkansas, July 27, 1982. n Bench and Bar of Arkansas (The B. F. Pace Publishing Co., 1935), 31. u Ark.Law. 1919-1920. 23.

55 Ibid., 36. ~I Bench and Bar of Arkansas. 31.

H Pearl W. Shoudel. ed .. Some Remarkable Women of Arkansas (Little Rock. Arkan· sas, Co-ordinating Committee for International Women's Year. 1977), 16. u Proceedings. 1935, 283·284, $9 Proceedings. 1921. 14.

40 Proceedings. 1935. 283-284.

41 Bench and Bar of Arkansas. 76. nArk-law. 1929·1930, n.p,

" Ark-Law. 1920-1921. 28. " Ark-Law. 1919·1920. 36.

1$ Bench and Bar of Arkansas. 76, n Proceedings. 1922. 13. n Proceedings. 1936, 7.

U While information on the origins of the Arkansas Association of Women Lawyers is sketchy. its members indicate that it was founded in Little Rock probe· bly in 1938 or 1939. Ruth Lindsey. Conver· sation. Little Rock. Arkansas, July 21.

1984. " Proceeding•• 1941. 150·151.

70 Proceedings. 1948. 337.

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â&#x20AC;˘ â&#x20AC;˘

By Larry Yancey The scope of this article is limited to a general discussion of the important considerations in evaluating tax shelter offerings.

Generally such investment opportunities are offered by promoters/developers through offerings that are either registered with the Securities and Exchange Commission and/or state securities regulators, or that are exempted from such registration by one of the private placement exemptions available in securities laws, These investment opportunities which provide substantial tax benefits to the investors, are commonly offered in the form of a limited partnership interest for a single purpose business endeavor, and includes substantial commissions and fees to be paid to securities broker/dealers, general partners and affiliated persons. The limited partnership interests are offered and sold by means of a private placement offering memorandum Editor's Note: Larry Yancey is a principal in the law firm of Prince & Ivester, P.A. of Little Rock. Mr. Yancey received his J.D. from the University of Arkansas at fayettevillein 1976 and LL.M. (in Taxation) from New York University in 1978, and is currently the chair-elect of the Section of Taxation of the Arkansas Bar Association.

This article marks an effort by the Section to keep the membership informed and up-to-date on tax law. Articles by other Section members will appear in subsequent issues of The Arkansas Lawyer.

Evaluating Tax Shelter Offerings

(or prospectus if the offering is registered with securities regulators) that are designed to make the disclosures necessary for consideration by investors.

The term "tax shelter investment" or "tax sheltered offering" has gained prominence in recent years and now is generally accepted in the investment community as a generic term for in-

vestments that allow the deferral, reduction or change in the character of an investors taxable income. Literally interpreted, it is an investment that allows the tax benefits from a business endeavor to be passed through to passive investors who utilize the benefits to offset their respective taxable incomes earned from other sources

of income. The result is a reduction in the investor's overall income tax liability.

The most common business endeavors recognized as offering tax benefits to passive investors are in commercial or residential real estate, equipment leasing, and oil and gas drilling programs. Other, and more exotic, business endeavors that are recognized as tax sheltered investments include cattle breeding and feeding, horse breeding, thoroughbred horse racing, ownership of master tapes for sound or video recordings, and research and development projects for patentable processes.

The basic concept for offerings of tax sheltered investments is that a business endeavor being promoted by a person or entity (generally serving as a general partner of such endeavor) will raise money for establishing the equity of the business endeavor from passive investors. The tradeoff that the

promoters allow to the investors is

that the investors will receive substantially all of the tax benefits, and the resulting reduction of the investors income tax liability should be considered as a cash return from such investment with the promise or hope that the long-term economic value of the investment will provide an adequate investment return regardless of tax benefits.

During the same period of time in which the term tax sheltered investments has gained prominence, it has also received some adverse publicity, especially from the Internal Revenue Service. Most of the adverse publicity was generated by abusive practices of a few promoters/developers. Notwithstanding the abusive practices of those few, tax sheltered investments should be considered a legitimate and proper means of conducting a business enterprise.

The structure of most tax sheltered investments allows the ownership of the business endeavor to be widely held and the tax benefits of such investment to be shared by all investors. Although not always well received by the Internal Revenue Service, such structures are legitimate and proper structures for business endeavors. The admonition of Judge Learned Hand should be remembered when he reminded the federal government and taxpayers alike that taxpayers do not have a patriotic duty to structure their business affairs in such a manner as to pay the maximum amount of income tax liability and have every legal right to arrange his or her affairs to reduce income tax liability so long as such structures are legal. substantive October 1984/Arkansas Lawyer/185

and pursue a valid business purpose (other than reduction of tax liability). ' The admonition of Judge Hand is especiall y appropriate in the evaluation of tax sheltered offerings because the most important point for evaluation is the economic quality of the investment. Regardless of representations that may be made by promoters, developers or salesmen, it is very rare that the tax benefits of an investment are solely responsible for the economic success of the investment. Tax benefits should be viewed as only one of the elements that constitute the economic quality of the investment. Tax benefits may enhance a transaction, i.e., tax benefits may make a marginal transaction more palatable or may make a good transaction even better. but tax benefits rarely are the only reason for economic success.

Absent any consideration of tax benefits. evaluation of the economic quality of a tax sheltered investment should include the follOWing considerations: 1. Front-End Costs. Sales commissions, consulting fees, general partner fees and management fees must all be disclosed in offering material. Substantially all of such costs are borne by the investors because such fees are generally paid from investor's funds. Generally. such amounts are disclosed in sections of the offering material entitled "Compensation and Fees." "Conflicts of Interest." and "Application of Proceeds." There is no good rule of thumb as to the genera II y accepted amount of front-end cost. but any offering involving front-end cost in excess of 25% of total capital (investor funds and long-term debt) should be closely scrutinized.

2. General Partner. The general partner is extremely crucial in most tax sheltered limited partnerships. Typically. the general partner has exclusive management control of the business endeavor and has substantial discretion over the use of investor's funds. Of course. the general partner has a fiduciary relationship to all the limited partners but. if the general partner lacks financial substance, such fiduciary responsibili~y can become an empty lSB/Arkansas Lawyer/October 1984

promise. The crucial items to determine about a general partner include net worth and financial stability. history of involvement in similar business endeavors, general reputation in the business community, level of experience and expertise in the area of business to be pursued by the limited partnership. and the history of handling investor funds. If the general partner is a corporation (which is generally the case). the executive officers and board of directors. as well as principal stockholders of the general partner. are very crucial and such information should be identified about the corporate general partner's management team.

3. Sharing of Distributions. All offering materials will describe the sharing of distributions between the limited partners and the general partner. Such schedule generally provides for substantially all of the distributions from the business endeavor to go to the limited partners. at least until their aggregate capital contributions have been recouped and. when such is obtained. a differen t perc en tage-sharing arrangement will take effect that provides a larger share to the general partner. This is typically referred to as the "residual" available to the general partner and. in evaluating such sharing of the "residual." it should be viewed as a form of bonus allowable to the general partner after the limited partners have recouped all of their initial investment. Again, no rule of thumb of acceptable residual sharing can be quoted. but such residuals may vary from 20% to 50"10 of distributions that will be available to the general partner. In a typical real estate limited partnership. such residuals should not be expected to occur for several years after the initial investment and generally do not become effective until the sale of the partnership's real estate or total refinancing of the same.

4. Projections. When possible. tax sheltered offerings will include projections of cash flow. tax benefits, gross income, and expenses that can be anticipated by the partnership. Except in rare instances, projections will always be included for tax sheltered offer-

ings in real estate or equipment leasing. Projections may be prepared by a certified public accountant or may be prepared internally by the general partner. In either case, projections are based on certain assumptions, e.g., occupancy rate, insurance premiums, creditworthiness of tenants or lessees, inflation. etc. Generally. projections prepared by an accounting firm are more conservative than those prepared by a general partner internally. and it is important to identify and understand the restrictions noted on the face of the projections. Projections are subject to question by investors and investors representatives, and the same should be pursued if any question or lack of understanding arises. Projections generally include a term referred to as "Internal Rate of Return." (The Internal Rate of Return is not a clearly defined accounting term and it may mean different things in different offerings. Typically. the Internal Rate of Return is the measure of the investor's cash return for cash invested. and it includes actual tax savings realized by the investor by use of the limited partnership's tax benefits.) A close review of the projections should clarify the amount of tax savings that are included in the calculation of cash return to the investor as a separate item from actual cash distributions from the limited partnership. If questions arise during the review of the projections and the Internal Rate of Return. it is generally wise to consult an independent certified public accountant for assistance.

5. Risk Factors. Consideration of the basic risk factors that should be analyzed for any type of investment cannot be overemphasized. The fact that the investor is purchasing a vicarious interest in the business endeavor in the form of a limited partnership interest does not reduce the need to review the risk factors in the same manner as though the investor were acquiring the ownership of the business endeavor directly. In the case of real estate. the items that should be considered are location, management. quality of construction and the general business climate of the locale. In the case of equipment leasing. the credit-

worthiness of the lessee and residual value of the equipment must be considered. In an oil and gas drilling program, the geological evaluations of the drill sites and the prior activities of the contract driller and operator must be considered. Many times the business endeavor to be conducted by a limited partnership will be out of the investor's general locale and sometimes out of state. In these situations it is often helpful to determine the general reputation and standing in the business community of those parties who will directly influence the economic viability of the invest-

an investor occur because tax-deductible expenses incurred by and tax credits available to the limited partnership are passed through to investor/limited partners. The

the lending institution is limited in its recourse upon default to the property securing the debt. In fact, if the general partner is personally liable for such debt and the limited

primary tax shelter items are tax

partners are not, recent tax legis-

deductible items that may not be

lation will require the limited partner investors to forfeit some of the tax benefits otherwise available to them.' If the real estate project involves the rehabilitation of qualifying historic property, an investment tax credit may also be available but. other than the eligibility of historic property, real estate will not generate any appreciable amounts of investment tax credit.

2. Equipment Leasing. The primary expenses in equipment leasing are depreciation and interest.

The investment tax credit is also available but only under certain conditions generally requiring the investor/limited partnership to have true economic risk on the residual value of the equipment that is being leased.

3. Oil and Gas. The primary expenses in oil and gas drilling programs are intangible drilling costs, depletion allowance and

current expenses, e.g.. deprecia-

tion, and tax credits that are based on a percentage of the purchase price of property (usually 10"10) and constitute a direct reduction in tax liability. The primary tax benefits of typical tax shelter offerings are: 1. Real Estate. The primary expenses that qualify as deductible items for real estate include depreciation of real property, interest. real estate taxes. maintenance and upkeep and management fees. Generally, real estate offerings raise only a portion of the

ment. e.g 0' real estate manage-

ment company. oil and gas con-

tract driller, creditworthiness of a long-term lessee, etc. Such evaluation of risk factors is simply a basic economic consideration that would be made if the investor were acquiring direct ownership. and it should also be made even if the investor is acquiring indirect ownership through a tax shelter offering.

money necessary to acquire the

property from investors and the limited partnership will borrow the remaining funds necessary for acquisition from an independent lending institution. Such financing should be non-recourse financing, i.e .. no personal liability by the general partner or limi ted partners for such borrowings and

Tax Benefits The tax benefits to be realized by

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some depreciation. The taxpayer may elect to treat a substantial portion of the cost of drilling and completing an oil and gas well (i.e. intangible drilling costs) as currently deductible items instead of requiring capitalization of the same. Intangible drilling costs typically constitute 60"10 to 75% of all drilling and completion costs. If the oil and gas drilling and completion is successful and commercial production is obtained, a depletion allowance is allowable as an offset for cash realized from the oil and gas production. The current available percentage depletion is 15% per year on the recovery of income from oil and gas production.

The amount of drilling and completion costs that are not currently deductible as intangible drilling costs will qualify for depreciation

and investment tax credit but such amounts generally are not large in proportion to the intangible drilling costs.

4. Borrowed Funds. A major advantage of tax shelter offerings is the use of borrowed funds to make the investment or, as the term is

utilized in the industry, leverage.

The "at-risk" rules of the tax laws severely limit the advantages of such leveraging. In the event of real estate. non-recourse finan-

cing is allowable and the investors will still retain all of the tax bene-

as part of the offering documents.

Reviewing the tax opinion letter will generally inform the investor of the tax counsel's view of the partnership status of the entity (a corporation will generally not produce tax benefits to investors), the adjusted basis of the limited partner's interest in the partnership, the application of the "at-risk" rules to that investment. the tax effect of the partnership's allocations of income and expenses. the ability to qualify for depreciation, investment tax credit, intangible drilling costs, depletion, and the tax treatment of the payment of various fees by the partnership.

American Bar Association Formal Opinion 346, as revised', and Treasury Department Circular 230 require tax counsel to take reason-

able steps to assure that all material tax issues are discussed in

light of the facts of the offering and further that all tax issues that involve a reasonable possibility of contest by the Internal Revenue Service are fully presented to the investors. Although ABA Opinion 346 and Circular 230 are not identical in scope and terminology, the basic thrust of the requirements on tax counsel are tbat "material tax issues" be fully discussed. Circular 230 includes a broader definition of a "material tax issue" than

fits otherwise available. However.

does ABA Opinion 346 and treats a

non-recourse financing is not

"material tax issue" as any tax

available in any other tax shelter offering. The use of borrowed funds by the limited partnership is still available to enhance the in-

issue having a significant effect in sheltering income from other sources by providing deductions in excess of the income to be recei ved from the investment. or providing tax credits that will reduce the tax liabilities of the investor in excess of the tax liabilities attributable to the investment, and also includes any other tax issue that could have a significant impact on an investor under reasonably foreseeable circumstances including penalities or interest charges that could be assessed against an investor. ABA Opinion 346 and Circular 230, read together, require that tax counsel provide an opinion on the overall tax aspects of a tax shelter offering and an evaluation of the anticipated tax benefits regarding whether, in the aggregate, such tax benefits will more likely than not be realized by the investor. If for any reason tax counsel is un-

vestor's potential economic return.

but any sucb borrowings by the limited partnership must be assumed solely and exclusively by the limited partners individually.

Also, the general partner cannot be responsible for the repayment of such debt. Despite a recent attempt by the IRS to limit the availability of leveraging with full recourse to limited partners 3 â&#x20AC;˘ it is

still an alternative to total cash outlays by the limited partner investors for acquisition of the property to conduct the partnership's business.

Tax Opinion Letter If an investment offering has any degree of tax shelter potential, a tax opinion letter will be included

ISS/Arkansas Lawyer/October 19S4

able to give a good faith opinion on certain tax issues, the reasons for

such lack of an opinion must be set forth.

The Deficit Reduction Act of 1984 requires the registration of tax shelter offerings with the Internal Revenue Service if the tax shelter offering is anticipated to create tax writeoHs in excess of a 2: I ratio over the initial five-year period of the investment. Such registration with the Internal Revenue Service is not for approval or review. but is merely a notice registration provision. The new registration requirement will also require the tax shelter offering promoter to furnish the tax shelter identification number to all investors.

Summary, Tax sheltered investments are a legitimate means of conducting a business that allow passive investors to enjoy the tax benefits generated in the early years of such business. Although tax benefits may enhance the economic value of an investment, such tax benefits should not be considered a substitute for the basic considerations of the economic value of any investment.

Offering materials that are provided to an investor considering a tax sheltered investment will include a discussion of the tax aspects of such investment. an opinion of tax counsel and generally provide a set of projections for the

investor to analyze how much and when such tax benefits will be realized. In evaluating any tax sheltered investment, it is crucial to remember that tax sheltered investments are structured and geared for high bracket taxpayers.

If the prospective investor is not a high bracket taxpayer, the suitability of such an investment should be carefully considered.

FOOTNOTES I

2

3 4

Gregory v. He1vering. 293 U.S. 465(1935). aUg Helvering v. Gregory. 695 F.2d 809 (2d Cir. 1934).

Deficit Reduction Act of 1984. §79. and the Conference Report thereon. directs the Treasury Department to promulgate regulations to support the IRS position in Rev. Rul. 83-151, 1983¡43lRS. p.G. and to be effective for transactions after March 1. 1984.

Private Letter Ruling 8404012.

American Bar Association Formal Opinion 346 (Revised) issued by the American Bar Association Standing Committee on Ethics and Professional Responsibility on January 29. 1982.

BULLETIN Paralegals: The National and State Outlook

By R. T. Beard The November, 1983, issue of the

Presently, there are two national and at least one instate organization involved with paralegals.

The national organizations are the National Federation of Paralegal Associations and the National Association of Legal Assistants, Inc. Recently, the Arkansas Association of Legal Assistants was formed.

Information regarding the National Federation of Paralegal Associations can be obtained by writing their headquarters at Ben Franklin Station, Post Office Box 14103, Washington, D.C. 20044.

The National Association of Legal Assistants, Inc., (NALA) is located in Tulsa, Oklahoma.

NALA's mailing address is Post Office Box 7587, Tulsa, Oklahoma 74105. NALA established in 1976 a voluntary certification program because of its concern with standards of professional conduct for legal assistants. Through June of this year, NALA had certified 684 legal assistants in 42 states, with specialty certifications in the areas of civil litigation, probate and estate planning, corporate and business law and criminal law and procedures. NALA has prepared and distributed a Model Standards and Guidelines for Utilization of Legal Assistants by Lawyers.

On July 6, the Arkansas Association of Legal Assistants announced its formation. AALA lists its main goal as providing a professional organization to support and encourage the employment of legal assistants. By their organizational letter of July 6, AALA announced that it would offer educational seminars to legal assistants on a variety of legal topics. Joanna J. Fitts at The Rose Law Firm, 120 East Fourth Street in Little Rock, may be contacted regarding information about AALA.

The National Federation of Paralegal Associations (NFPA) is an organization of state and local paralegal associations which represents itself as having 32 member associations representing between 6,000 and 7,000 paralegals across the country. NFPA was founded in 1974 in what it says was a response to the growing interest in the development of the paralegal profession.

During 1983, Dennis Shackleford, who was then serving as president of the Arkansas Bar Association, recognized the need of the organized Bar to become active in the paralegal area. A committee on paralegals was established and Judge Annabelle Clinton and R. T. Beard were appointed co-chair.

'At the 1984 long range planning conference of the Arkansas Bar

American Bar Association Journal

contained a LawPoll Survey entitled, "Use of Paralegals Makes Goad Business Sense." The survey reflected that 54% of 525 law firms questioned em play paralegals.

The article recounts that of the firms who hire paralegals, 94% stated that the job duties of a legal assistant differ appreciably from those of a legal secretary. A paralegal or legal assistant, the article stated, is primarily involved in the more structured areas of case preparation, such as document organization and case chronologies, but expected and anticipated duties run from fact investigation through the preparation of routine pleadings all the way down to service of process.

Not surprisingly, the ABA Survey found that paralegals were used more in larger firms in larger cities. Interestingly enough, however, the survey reported a significant use of paralegals in law firms of three to ten lawyers practicing in areas ranging from 50,000 to 250,000 in population.

Association, it was determined that the bar would undertake a three-step process to first educate the Bar of Arkansas about the uses and benefits of paralegals, ascertain if there is a need and desire for a certification program for paralegals in Arkansas, and, finally, if such a need and desire exists to formulate a program and plan to initiate and implement a certification procedure.

As demands on a lawyer's time continue to increase we must find new means and methods of extending our productivity. The legal assistant or paralegal is the only logical answer to this perplexing problem of productivity.

All of the information available stresses the need for the lawyer to understand and appreciate that the paralegal is not merely a glorified secretary, but must be treated as a useful and functional appendage of the lawyer in order to be effective. The paralegal must be given office space, dictating equipment and secretarial assistance. The lawyer may then bill for the paralegal's time at a reduced rate, thereby affording the client a cost savings and freeing up the lawyer to be more concerned with legal issues than the mundane paper shuffling which seems to account for so much of every lawyer's day.

It appears that there is a strong movement underway throughout the country by legal assistants to solidify their place in the legal community and gain recognition as legal technicians. The Arkansas Bar Association is committed to monitor the paralegal situation closely and plans to utilize its resources to educate its membership about paralegals, determine the need and desire for paralegals in Arkansas and if such need and desire exists to assist in formulating guidelines for the use of paralegals by Arkansas lawyers.

0

October 1984/Arkansas Lawyer/l89

EXECUTIVE DIRECTOR'S REPORT 'New Look' for Lawyer, News Bulletin and Organizational Directory

By Wm. A. Martin This issue of The Arkansas Lawyer is the third one with the "new look." Also, you have noted a change in the size. content and design of the News Bulletin and 1984 Organizational Directory. I hope you find the changes as attractive as I do. The credit belongs to the editor, Ruth Williams, who came to us last September following three years' service as execu-

tive director of the Arkansas Library Association. She is a 1979 Journalism graduate of UALR and has the education, enthusiasm and creative ability to provide the Association with outstanding publications. My role is to give her permission and encouragement to

try new ideas.

The Lawyer is turning more to Arkansas writers. Our attorneys

have the ability to produce top notch legal articles and we want them to write for our publication.

Articles such as the one on courthouses and the "Generations in the Law" series keep us in touch

with our heritage.

In the January 1984 issue I mentioned we might do a survey about the Lawyer. Since then, I have learned we usually do not get enough responses from surveys for them to be statistically valid.

Still. with our changes, we would like for you to tell us w hat you like and don't like, what you want kept. added, brought back or dropped out. Please drop us a note. Don't let someone else speak for you because you are silent.

The new pocket size organizational directory is in lieu of the thinner. cumbersome pull out sec-

tion usually published in the October issue. We trust it will help you keep up better with who does what in the Arkansas Bar. 190/Arkansas Lawyer/October 1984

LAWYER REFERRAL PHONE In the July issue, I mentioned the problems our Lawyer Referral Service has because our ad with the 375-4605 number was left out of the Yellow Pages of the Greater Little Rock telephone book. Ron Young, an attorney for Southwestern Bell.

has been very responsive and we have the problem with the telephone company satisfactorily worked out. The Public Information Committee plans some other advertising to get the number before the public and we hope our members help let civic clubs and other organizations know of the existance of the lawyer referral service and how to call it. including the 800-482-9406 number outside Pulaski County.

ANNUAL MEETING The Annual Meeting in Hot Springs in June was a great success. Our members seemed. very

interested in what the Appellate judges on the program had to say and the social events were very popular. The meeting in 1985 will be at the Arlington Hotel from June 5 through 8. With the legislatively mandated change in the school year in Arkansas, these dates may conflict with a few graduations, but we could not get a later time for 1985. We are working on moving the meeting a week later in 1986 and beyond.

The Foundation has three new endowed scholarships, one in memory of Associate Justice J. Frank Holt, and two which were announced at the Annual Meeting in honor of Associate Justice George Rose Smith and Judge J. Smith Henley. If you have not made the contribution to one or more of these scholarship funds,

the Foundation would welcome your gift. The Foundation would also welcome your gifts to the older scholarships. A list of the lawyers honored by them is in the Foundation column on Page 22 of the January 1984 issue of The Arkansas Lawyer. All these endowments need to grow for the income paid to law students to keep up with inflation.

NEW PUBLICATIONS In the next few months we should have several new systems available to help in your practice.

Watch for announcements of their availability. Dean J. W. Looney is coordinating preparation of an Agricultural Law System which goes far beyond just farm law and includes information on advising landowners and financial institutions who make loans to landowners.

Ben Rowland of the Family Law Section has just about completed a second supplement to the Domestic Relations System and William Haught of the Economics of Law Practice Section reports the committee is within a chapter of completing a supplement to the Arkansas Form Book.

We distributed an update to the Appellate Advocacy Handbook at the Annual Meeting. Before this magazine is printed, those members who were not registered for the meeting should have received a copy of the update. Since the original handbook was sent to all lawyers then admitted in Arkansas, we sent the update as a convenience along with a request we be paid $15 for it or it be returned. We have the inventory of the original books available for a $10 handling fee for lawyers who no longer have theirs or who have started practice since it was published.

0

YOUNG LAWYERS' UPDATE New Officers Elected for 1984-85 good, the Section will be focusing more of its attention during 198485 on projects that will benefit lawyers directly and the public indirectly. By popular demand, the Section will again co-sponsor with the Economics of Law Practice Section a half day program in conjunction with the Practice Skills Seminar on October 20 on "Opening a Law Office."

Other 1984-85 projects for lawyers include the publication of a Criminal Defense Handbook under the guidance of Sam Perroni. The handbook will contain a detailed nuts and bolts guide for those not expert in the field of criminal law.

Also, the YLS is planning a basic

At past-chair Carl A. Crow, Jr.'s

By Martha M. Miller, Chair

invitation. several of the Section

past-chairs attended the Annual Meeting and received Certificates of Recognition. It is interesting to

Another year began for the Arkansas Young Lawyers' Section in June during the Annual Meeting in Hot Springs with the election of oflicers and Executive Council members. Richard L. Ramsay of Pine Bluff is the chair-elect for 1984-85 and Tom Ray of Little Rock will be serving as the Section's secretary-treasurer.

The four new members of the Executive Council elected to twoyear terms are: Edward Boyce, Newport-Northeast District; Zachary Taylor, Pine BluffSouthern District; Charles Harwell, Springdale-Northwest District. and Charles Cremeen, Little Rock-Central District. The other four members of the Executive Council who are in the second year of their two-year terms are:

John Fogleman, West MemphisNortheast District; Pat Burrow, Pine Bluff-Southern District; Mike Crawford, Hot SpringsNorthwest District; and Ann Henderson, North Little Rock-Central District.

This year:s election of the chairelect was the first under the ByLaws as revised at the Annual Meeting in June, 1983. Under the new provision (fashioned after the election of the president of the senior Bar) any person who wishes to run for the office of chair-elect must submit a nominating petition signed by 25 members of the Section 60 days prior to the Annual Meeting. Only those persons who have served on the Executive Council for the Section or as the

note that most all of these people have continued to be quite active in the Arkansas Bar Association

with a good number of them serving as its president.

During recent years, the Arkansas Young Lawyers' Section has received state and national recog-

nition for its programs. Many of these programs have been designed for the benefit of the public such as the Senior Citizens' Handbook now in its third edition (fourth printing).

While continuing support of this effort and others for the public

criminal defense seminar to be

held in conjunction with the publication of the handbook.

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ARKANSAS BAR FOUNDATION 24 Attorneys Become Fellows In 1983-84

By Robert L. Jones. III Last year under the able leadership of President Cyril Hollingsworth. the Arkansas Bar Foundation focused on increasing communications between the Foundation Board of Directors and Foundation members in several

ways. In May 1983, the Foundation began the semi-annual publication of the Arkansas Bar Foundation Newsletter. It is the purpose of this newsletter to keep Foundation members advised of such matters as finances. coming events, new Fellows. scholarships. research fellowships and memorial gifts. In addition to the newsletter a banquet was held, in conjunction with the January mid-winter Bar Association meeting in Little Rock. One of the dinner's purposes was to honor scholarship and research grant recipients. This dinner was open to Foundation members and their guests. Governor Bill Clinton was the guest speaker. Over 165 persons attended. Because of its success we plan on having a similar dinner at the January 1985. mid-winter meeting.

While solicitation of new Fellows was not a primary goal.· the Foundation is pleased to report that during the past year 24 attorneys became Fellows. Any attorney in good standing in this state may become a Fellow with a contribution to the Foundation in the amount of $1.500.00 and approval by the Board of Directors. I want to encourage all attorneys to become a Fellow. Some of you reading this article who desire to become a Fellow can write out the necessary check immediately.

Others will find it more convenient to pledge the money over a period of years and pay installments as the majority of the present Fellows have done. Any member of the Arkansas Bar who is interested in becoming a Fellow of the Foundation and who is uncertain as to what steps to take should call Robert D. Cabe of Little Rock. chairman of 192/Arkansas Lawyer/October 1984

the Membership Committee. or Bill Martin. executive director of the Foundation. at the Bar Center in Little Rock for further particulars.

The Foundation now has 344 living Fellows.

The purposes of the Arkansas Bar Foundation include the promotion of educational. literary. scientific and charitable causes. More specifically, to improve and facilitate the administration of justice. to promote study and research in the field of law and the continuing legal education of lawyers. Naturally. these purposes will be further enhanced by the addition of Fellows.

The Foundation does have a solid financial base with assets approaching $2.000.000.00. While the Foundation is enjoying financial success we are in need of additional operating funds. I encourage each member of the Foundation to consider contributing $50.00 or more annually. This additional contribution will entitle that person to be designated as a sustaining member. Last year we had 104 sustaining members. One of my goals this year is to increase sustaining memberships.

Foundation scholarships have continued to grow in both numbers and in capital value. Face principal of Foundation scholarship funds now exceed $159.000.00. Last year the Foundation was pleased to award scholarships to 17 students attending the University of Arkansas School of Law at Little Rock and to 16 students attending

the University of Arkansas School of Law at Fayetteville.

One of the ways the Foundation recognizes contributions to the administration of justice and the legal profession is through the presentation of awards. This year the Foundation and Association presented its "Outstanding Lawyer" award to Justice John A. Fogleman of Little Rock and its "Outstanding Lawyer Citizen" award to James B. Sharp of Brinkley. The Foundation and Association also honored Phillip Carroll of Little Rock with the first annual "C. E. Ransick Award of Excellence" for exceptional service to the legal profession. The "Lawyer Humanitarian of the Year"-<I special award-wen t to Bernard Whetstone of Little Rock for his work with the blind.

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IN-HOUSE NEWS Law Schools, AICLE and Executive Council UNIVERSITY OF ARKANSAS SCHOOL OF LAW AT FAYETTEVILLE

By J. W. Looney

On Saturday, April 28, the School of Law sponsored the first Alumni Day luncheon honoring the inauguration of the Hartman Hotz lecture series and the lirst lecturer, Chief Justice E. Warren Burger. The luncheon also honored the appellate judges of Arkansas including members of the Arkansas Court of Appeals, the Arkansas Supreme Court, and the Eighth Circuit Court of Appeals. Nearly 400 alumni and friends were present for this lirst effort.

Following the luncheon Chief Justice Warren E. Burger delivered the inaugural lecture in the Hartman Hotz Lectureship Series in Law and Liberal Arts. He spoke on issues related to prison reform and corrections.

1984 Graduation The 1984 graduating class of 118 (the smallest in recent years) selected

Professor Robert Laurence as speaker. At ceremonies

in

May,

Carol Goforth, Robert Hornstein, John Tull and Mark Pennington were recognized as High Honors graduates.

Michael Bennett, Katherine Gay, P. E. Hollingsworth, Stephen Hough, Richard Massey and Melody Williams received recognition as Honor graduates.

Robert Hornstein was selected as the recipient of the Joe C. Barrett Commercial Law Award in recognition of his accomplishments in com-

mercial law. This award is sponsored by a bequest in the will of Mr. Barrett to the Arkansas Bar Foundation.

Carol Goforth was selected as the recipient of the Craig Stearns Award in recognition of her accomplishments in taxa-

tion and estate planning courses.

Council of Legal Education Opportunity Summer Institute The law school was selected as one of seven law schools in the country to host a Council of Legal Education Opportunity Summer Institute for minority and economically disadvantaged prospective law students. Thirty-two students from the southeastern states and Puerto Rico spent six weeks in intensive training in legal writing,

analytical skills developmen t and in legal method. Wylie Davis, Chauncey Brummer, Howard Brill. Ray Guzman, Carlton Bailey, David Newbern, Al Witte and Chris Kelley taught sessions during the program. Assistant Dean James Miller served as institute coordinator.

UNIVERSITY OF ARKANSAS AT LmLE ROCK SCHOOL OF LAW

New Faculty One new member is

joining the faculty in the fall. She is Janet A. Flaceus, formerly in practice

for four years in Urbana, Illinois. Professor Flaccus is a graduate of Wheaton College and holds a M.A. and the J.D. from the University of California-Davis and completed studies for a LL.M. at the University of Illinois during the summer. She will teach primarily in the area of commercial law.

Jake Looney Appointed to USDA Committee Dean Jake Looney has been selected to serve on a special planning committee to develop a series of colloquia for the United States Department of Agriculture under the auspices of the C. V. Riley Memorial Trust. a fund devoted to the enhancement of understanding among

By John M. Sheffey News of Recent Graduates Several members of the class of 1984 graduated with distinction.

Timothy Willis Grooms and Robert Howard Nunnally, Jr. both graduated with High Honors, the highest distinction awarded to a graduating senior. Honors gradu-

ates included George Patrick Nelson, Caryl Lyn Peeples, Jeanette A. Robertson, LaQuita Kenner Saunders, Joel Lynn Taylor and William A. Waddell.

Rosalind R. McClanahan, a May graduate, will spend the next year studying at the University of Bristol. England under a Rotary scholarship. Her studies will be concentrated in interna-

tional law and will lead to an LL.M. degree. Mrs. Lois Kline, also a member of the Class of 1984, will spend the up-

the various participants

coming year in residence

in agricultural and for-

at Georgetown University in Washington, D.C.

estry activities.

October t984/Arkonsas Lawyer/l93

Mrs. Kline will pursue an LL.M. in securities regulation. Mary Harmon. a 1983 graduate of the Law School. has returned to Little Rock after receiving her LL.M. in taxation from New York University.

LaQuita Saunders. a 1984 graduate of the Law School and the assistant editor of the UALR Law Journal. will become a graduate assistant at the University of Denver School of Law w here she will pursue an LL. M. in taxation. She has also been selected as the editor-in-chief of the University of Denver Taxation Law Journal.

of Law of the College of William and Mary where he was associate professor of Law. Professor Pagan is a graduate of William and Mary. and holds a Masters in Literature from Oxford University and a J.D. from the Harvard Law School. He served as law clerk to Judge Ozell M. Trask of the United States Court of Appeals for the Ninth Circuit. Professor Pagan will teach torts. federal jurisdiction and civil liberties.

W. Dent Gitchell. who has been in private practice in Little Rock for the past 15 years and has taught as an adjunct professor in recent years,

New Additions to the Faculty The Law School has just completed a most successful faculty recruitment year resulting in the addition of four outstanding new professors to the faculty.

Richard K. Burke returns to Arkansas from the University of South Dakota where he served as professor of law and. from 1974 to 1980. dean.

Professor Burke received a Ph.D. from Vanderbilt University and his LL.B. from the University of Arkansas at Fayetteville w here he served as asso-

ciate editor of the Arkansas Law Review. He has

also taught political science. engaged in private practice in Helena

and in Tucson. Arizona. and served as Deputy Assistant United States Attorney General. in the Criminal Division. from

1972- J973.

Professor Burke has recently completed a text on constitutional privileges and

has also joined the faculty. He earned his law degree at the University of Arkansas at Fayetteville in 1969 and served as managing editor of the Arkansas Law Review. During the upcoming year Professor Gitchell will teach Trial Advocacy Evidence and Family Law. Timothy J. Kennedy comes to Little Rock from Kansas City. Missouri. where he was an as-

sociate attorney with the prestigious firm of Shook. Hardy and Bacon.

He received his J.D. with distinction from the University of Missouri-Kansas City where he ranked first in his class and served on the Law Review. Since graduation. his practice has been concentrated in litigation with extensive work on the class actions involving the Hyatt Regency skywalks litigation. Professor Kennedy will teach clinical courses and juvenile law.

immunities.

John Ruston Pagan joins the faculty from the Marshall Wythe College 194/Arkansas Lawyer/Octaber 1984

Faculty News While the Law School

is proud of these additions to the faculty. it regrets that several members of the faculty left during the past year.

Morris S. "Buzz" Arnold returned to the faculty of the Law School of the University of Pennsylvania. O. Fred Harris accepted a permanent appointment to the faculty of the University of Cincinnatti School of Law. Norman H. Stein became the Director of Clinical Programs at Hofstra University School of Law. and Jason Reynolds returned to private practice in Florida.

An article by Professor Philip Oliver. entitled "Section 265(2): A Poor Solution to a NonExistent Problem." has been accepted for publication by The Tax Law Review.

Associate Dean John M. Sheffey is a co-author of the "Annual Review of Securities Regulation" which appeared in two parts in recent editions of the Business Lawyer.

Professor Paula Casey has been appointed by Governor Bill Clinton to serve on the Juvenile Advisory Group of Arkansas. She is also serving as reporter to the Arkansas Bar Foundation project for revision of the

Arkansas Criminal Code. At the annualluncheon of the UALR Law School Association. held in conjunction with the annual meeting of the Arkansas Bar Association in Hot Springs. Professor Casey received an award for her article.

"Arkansas Juvenile Courts: Do Lay Judges Satisfy Due Process in Delinquency Cases." which was published in the UALR Law Journal.

Donaghey Distinguished Professor Robert R. Wright has been se-

lected as a Fellow of the American College of Probate Counsel. The teacher's manual for his casebook on land use will be published shortly

by West Publishing Company.

Professor Ellen Brantley spoke to the Arkansas Judicial Counsel on recent developments in Arkansas civil procedure. She also spoke on pitfalls to avoid in federal practice at the Federal Court Orientation Seminar sponsored by the Arkansas Association of Women Lawyers and AICLE. She was also elected vice president of AAWL in May. Professor Brantley has been named to a committee to study proposed model instructions for criminal cases promulgated by a committee named by the Eighth Circuit.

Assistant Dean Claibourne W. Patty. Jr. spoke to recently admitted lawyers on April 30 at the orientation program sponsored by the Young Lawyers' Section of the Arkansas Bar Association. He also made a presentation on estate

planning before a senior citizens' group as part of

the Law Week observation of the Pulaski County Bar Association.

The Law School's library was well represented at both the American Association of Law Library's Institute on Management Skills held at the University of Santa Clara and the AALL Annual Meeting held in San Diego. Dana Davis. reference librarian at

UALR. attended both. and Ruth Brunson and Pauline Ghidotti. director of the Law Library and assistant to the director. respectively. attended the annual meeting.

A.I.e.L.E. NEWS--

as registrants but also by participating as program planners. program

chair-persons or moderators and lecturers and

By Claibourne W. Patty, Jr.

panelists on course ma-

CLE Programming

honoraria and minimal

Increases During

Seventh Year of Operation The Arkansas Institute for Continuing Legal Education (AICLE) has completed its seventh year of operation. During the period July I, 1983, to June 30, 1984, the number of programs, the diversity of topics offered and the overall attendance by members of the Arkansas Bar Association

and other interested professions have exceeded the previous year.

Statistically speaking AICLE directly sponsored or co-sponsored 22 separate programs con-

sisting of a total of 141 lecture/demonstration hours presented to 1,937 registrants for an aver-

age of 88 registrants per program/session. Of the total programs, four were videotape replays of the 1983 Fall Legal Institute devoted to the subject of Debtor/Creditors' Law and System Update. The videotape regional replays were first introduced in Arkansas during the fiscal year 1980-81, and they have continued to be generally well received by the members of the Bar, depending on the subject matter and the avoidance of conflicts of scheduling with local court dockets.

By necessity (and now by tradition) AICLE relies on Association members to patronize the various

CLE presentations during the Bar year, not only

Security Law Short Course

terials, with little or no reimbursement of per-

sonalexpenses.Notonly have individuals been involved, but various committees and sections

of the Association have participated during the past year such as: Health Law Committee; Creditors'/Debtors Rights Committee; Young Lawyers' Section; Section on Economics of Law Prac-

tice; Agricultural Law Section; Taxation Section; Labor Law Section and State and Federal Securities Law Committee. The Federal Practice Committees of the Eastern and Western Districts of Arkansas and the Arkansas Women Lawyers'

Association

have also participated.

Chair-persons of the Young Lawyers' Section and the Legal Education Committee of the Bar also sit ex-officio on the AICLE Board along with Bar Association executives, Bar Foundation executives and members

of the House of Delegates.

Last but not least, the co-sponsoring law schools at the University of Arkansas at Fayetteville and UALR have provided leadership and program planning through their prospective deans, who are

also members of the AICLE Board. More importantly, the law schools have provided generous faculty support as program planners.

presiders and participants, as well as authors of systems and program materials.

The program, chaired

by Donald T. Jack, Jr ..

Esq., of Little Rock, covered the following topics: scope in general of securities law; registration and exemptions under

federal and state law and anti-fraud and liability with emphasis on disclosure, due diligence and malpractice under anti-fraud; and remedies. limitations,

aider and abettor, control persons and protection available under liability.

The panel of speakers, which included not only Don Jack but Arkansas Securities Commissioner Lee Thalheimer, Esq .. and John Selig, Esq., of Little Rock, chair of the State and Federal Securities Law Committee, were in attendance

at each of the locations.

After the formal presentation, the panel. which also included other committee mem-

bers, concentrated on the following topics: organization of corporations;

real estate syndications; additional capitalization of an issuer; and sale of business by stock.

topics covered: interests in land; natural resources issues; timber transactions and farm

land preservation law; taxation issues; evalua-

tion of land for tax and estate purposes; and representing the financially distressed owner of agricultural land.

Second Annual Health Law Seminar to be

Conducted at Red Apple Inn The Association's Health Law Committee and AICLE are co-sponsoring a Health Law Seminar at Red Apple Inn on October 5-6, 1984, which will include most. if not all of the following topics: new changes in

medicare matters pertaining to TEFRA; medical malpractice update; health planning issues; health facility financing; hospital board and staff accountability; alternative delivery systems including PPOs, HMOs and state regulation; health law anti-trust matters; and legislative issues including certifi-

cate of need, informed and consent, etc.

Annual Practice Skills Course to be Conducted October 18-20

Fall Legal Institute The Fall Legal Institute, at the Fayetteville Hilton and the University of Arkansas Conference Center, was conducted September 20-21. 1984.

This year's Institute, chaired by Dean Jake Looney of the, U of A at Fayetteville School of Law. coneen trated on the

general theme of "Advising Land Owners" with the following specific

The 25th annual Practice Skills Course (formerly Bridging-theGap), jointly sponsored

by AICLE and the Association's Young Lawyers' and Economics of Law Practice Sections, will be held at the Riverfront Hilton, North Little Rock, on October 18 and 19 with a concluding session at UALR School of Law on October 20.

October 1984/Arkansas Lawyer/195

Executive Council meet-

Cyril Hollingsworth, past-president of the Arkansas Bar Foundation, reported that the Foundation is seeking the submission of proposals for support or grants from the Foundation. Mr. Hollingsworth also reminded the delegates that the Arkansas Bar Center is available for use by out-of-town attorneys and that memorial gifts may be made to the Foundation.

Dean Clay Patty, of the Arkansas Institute for Continuing Legal Education, reported that a sufficient number of continuing legal education hours will be available if CLE becomes manda-

ing, the financial statement as of May I. 1984, and Association membership statistics. President Shackleford filed his President's Annual Report.

President Shackleford took notice that due to inclement weather on January 21. 1984, the absences of the following House members at the January meeting will be

being made for a satellite network which will provide a connection to ALI-ABA/PLI programs.

Executive Director William A. Martin submitted the Arkansas Bar Center report.

Herschel H. Friday, the Association's delegate to the American Bar Association's House of Delegates, submitted a res-

ARKANSAS BAR ASSOCIATION HOUSE OF DELEGATES MEETING JUNE 9, 1984 The House of Delegates of the Arkansas Bar Association held its annual meeting at the Arlington Hotel in Hot Springs on June 9, 1984.

President Dennis L. Shackleford presided.

The House approved the minutes of the last

tory. Arrangements aTe

automatically excused:

olution to the House in

A. F. Thompson, Thomas B. Staley, Jeffrey Pence, William B. Howard, and Gary Cotrell.

President Shackleford announced that the As-

support of a proposed amendment to the

sociation has retained

Martha Miller to act as its lobbyist.

Jack McNulty, chair of the Jurisprudence and Law Reform Committee, presented the proposed Legislative Package as approved by the Executive Council. The House of Delegates approved the proposed Legislative Package.

President-Elect William R. Wilson, Jr. announced the institution of a pledge card for LAW PAC, which provides for a minimum contribution

of $60.00 per year.

American Bar Associa-

tion's Constitution. The House unanimously en-

dorsed the resolution.

The proposed amendment implements changes in the composition of the ABA's Board of Governors and in the procedure for nominat-

ing officers of the Association.

The House unanimously approved the report of the Special Planning Committee on the Long Range Planning Conference and approved the recommenda-

tions contained in the re-

port for future action.

Robert Cearley presented the Site's Committee report. A motion to

19G/Arkansas Lawyer/Octaber 1984

move the semi-annual

meeting of the Association to the Peabody in Memphis failed. The House approved a motion to table the consideration of a motion rec-

ommending that the annual meeting remain at the Arlington Hotel in Hot Springs.

Robert R. Wright. a member of the Resolutions Committee, reported that a constitutional amendment defining the jurisdiction of courts will be submitted to the House of Delegates in the near future.

The House approved a resolution opposing the adoption of the proposed Standard 405(E) submitted by the Section of Legal Education Admission to the House of Delegates to the American Bar Association. It endorsed a resolution re-affirming its opposition to the Federal Trade Commission's regulation of the admission to the bar and discipline of lawyers in states where the highest court has, and exercises. the authority to regulate the bar. The House urged an amendment to pending legislation which would limit the FTC's authority as set forth above but make it clear that the FTC's existing authority to enforce the anti-trust laws is not thereby abridged.

The House of Delegates approved the proposed budget for the Association for 1984-8$, the appointment of the committee chairs and members to Standing Committees and the appointment of chair for Special Committees for the year 1984-85.

The caucuses of Delegates reported the election of the following persons to the Legislative Oversight Committee for

1984-85: John D. Eldridge, Gary R. Cotrell, James M. Simpson, and Michael R. Landers. Carl A. Crow has been appointed to the Board of AlCLE. The following were elected by the House of Delegates as new Executive Council members: Stephen M. Reasoner, Robert S. Hargraves, William R. Meeks, III, and Jack A. McNulty.

Annabelle Clinton, secretary-treasurer of the Association, certified the election of Don M. Schnipper as presidentelect for 1984-85, and the election of new delegates to the House of Delegates, 1984-85. Clinton also certified new tenured delegates and ABA Delegate Herschel H. Friday.

Clinton was re-elected as secretary-treasurer of the Association for 1984-85.

The Honorable Thomas F. Butt, upon the expiration of his tenure as a member of the House, commented that his years of experience as a delegate had been rewarding. President Shackleford presented Jim McKenzie with a plaque for his service as chair of the Executive Council. 1983-84.

President William R. Wilson, Jr.. in his State of the Association Address, expressed a desire to continue further efforts toward a better liaison between the Bench and the Bar. Further, President Wilson challenged members to become more actively involved in the Association.

President Wilson appointed "Mac" Glover as chair of the Executive Council for 1984-85.

The meeting was adjourned at 10:45 a.m.

Annabelle Clinton Secretary-Treasurer 0

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INDEX THE ARKANSAS LAWYER

Volume 18 Beginning with Volume 18. the issues of The Arkansas Lawyer will be indexed annually in the final issue of the year. It is hoped that this service will provide members with a quick reference to the articles and columns which appear in the pages of the Lawyer.

Mike Hankins, director of Arkansas Lawsearch and a research

librarian at the University of Arkansas at Little Rock School of Law Library, prepared the index for Volume 18. Cases and attorneys have been indexed for the first time--<I real asset for attorneys.

Your comments aheut the index are welcome. Please write to Editor, The Arkansas Lawyer. 400 W. Markham, Little Rock, AR 72201.

SUBJECT Admiralty Admiralty Jurisdiction: Executive Jet through Foremost Insurance Co. v. Richardson, by James A. George 1:4 Agriculture In-House News 2: 113 In-House News 3:153 Antitrust The Increasing Risks of Antitrust Liability, by Patrick R. James and H. Edward Skinner ...3:126 Arkansas Bar Association

Joint Committee of Arkansas Judicial Council/Arkansas Bar Association (President's Report! .. 1:2 Arkansas Bar Foundation Scholarships Through the Foundation 1:20 Attorneys The Arnolds of Southwest Arkansas, by Morris S. "Buzz" Arnold 3: 136 The Daggetts of Eastern Arkansas,

by Robert R. Wright 4:172 The Image of the Lawyer, by Wm. A. Martin 2:110 Where There Are No Lawyers, There fs No Liberty, by David M. Elderkin 2:53 198/Arkansas Lawyer/October 1984

Why Do People Hate Lawyers, by Forrest E. Dunaway 3: 120 Women of the Law in Arkansas: A Record of the Past. by Frances Mitchell Ross .4: 178 see also: In Memoriam Book Review Federal Criminal Trials, Reviewed, by W. H. "Sonny" Dillahunty 3:121 The Prin~iples of Social Order, Reviewed, by W. Christopher Barrier 2: 109 Commercial Law Law School News 1:20 Computers Lawyer's Short Course in Basic Computer Language, by Ashley S. Lipson 2: 104 Constitutional Law Separation of Powers in the U.S. Constitution,

by William French Smith 1:40 Continuing Education

Task Force on Professional Competence (President's Report!

2:47 Courthouses

County Courthouses in the Mainstream of Preservation Efforts,

by Jacalyn Carfagno 2:62 Estate Planning Estate Planning and Will Drafting,

by Rupert A. Stuart 2:54 Evidence

Law School News

1:20

Federal Employer's Liability Act In-House News 3:153 Courts The Arkansas Court of Appeals: Was It Worth The Trouble, by James D. Gingerich 3: 140 In-House News 3:153 Criminal Law

Criminal Defense Handbook .. 1:43 Depositions

The Deposition and Reality: Some Suggestions from an Old-Timer, bye. bob wallach 4:167

History The Arnolds of Southwest Arkansas, by Morris S. "Buzz" Arnold 3: 136 County Courthouses in the Mainstream of Preservation Efforts,

by Jacalyn Carfagno 2:62 The Daggetts of Eastern Arkansas,

by Robert R. Wright ..... .4:172 Indian Law In-House News 3: 153 In Memoriam

Bob Bailey 4:176 Justice Lyle Brown 4:177 Donald Paul Callaway 3: 135 Melvin Thayer Chambers 2:60 J. Frank Holt 1:7 C. R. (Dick) Huie 3:134 Louis Edward Hurley 1:8 John Fred Livingston, Jr. .

2:60 James Neal Nutt 1:7 L. V. Rhine 4: 176 Charles T. Richardson, Jr .4:177 Edward Riddick Riffel .4: 177 Elton A. Rieves, Jr 3: 134 James A. Ross 2:60 Judge Harrell A. Simpson, Sr.4: 176 Louis Ingram Watts .4:177 Insurance

First Party Bad Faith Comes to Arkansas, by Rodger A. Glasgow 2:48 Judiciary The Arkansas Court of Appeals: Was lt Worth the Trouble, by James D. Gingerich 3:140 Creation of Judicial Compensation Commission to be Studied (President's Report) 2:47 In-House News 3: 153 Joint Committee of Arkansas Judicial Council/Arkansas Bar Association (President's Report! .. 1:2 Judicial Critique to be Conducted (President's Report!

3: 119

Land Use In-House News Labor Law Law School News

,

3:154

1:20

Law Day Planned Activities 2:103 Legal Economics The Differences Between Dedicated Word Processors and Microcomputers-The Bottom Line, by Kline D. Strong ... 1:30 Legal Education Mandatory Continuing Legal Education (President's Report) .. 1:2 Legal Mal practice Avoiding Legal Malpractice Claims: Preventing Pitfalls in Litigation Practice, by Duke Nordlinger Stem 1:29 Legal Writing Strunk and White and Me and You,

by Chris Barrier (Out 01 Context) .4: 164 Write If You Get Work, by Chris Barrier 3: 122 Libel In-House News ......•...... 2: lI3 Mundamos Law School News 1:21 Patent Law The Attorney in General Practice and the Patent-Related Case,

by Marc Sandy Block 1:24 President's Report ABA Model Rules of Professional Conduct 1:2 Creation of Judicial Compensation Commission to be Studied 2:47 lnterest on Lawyers' Trust Accoun~ 1:2 Joint Committee of Arkansas Judicial Council IArkansas Bar Association 1:2 Judicial Critique to be Conducted 3:lI9 The Lawyer Explosion 1:3 Mandatory Continuing Legal Education 1:2 Task Force on Professional Competence 2:47 Probate Law School News 1:20 Prolessional Responsibility ABA Model Rules of Professional Conduct (President's Report) 1:2 ABA Model Rules of Professional Conduct: An Update, by Herschel H. Friday 3: 146 Avoiding Legal Malpractice Claims: Preventing Pitfalls in Litigation Practice, by Duke Nordlinger Stem 1:29

Contingent-Fee Agreements .. 1:34 IOLTA (Interest on Lawyers' Trust Accounts), by James A. Holcomb 1:14 lnterest on Lawyers' Trust Accounts (President's Report) .. 1:2 Task Force on Professional Competence (President's Report) 2:47 What Shall We Do About Model Rules of Professional Conduct (Point 01 View) .4:160 Securities Law

In-House News (Faculty News)

.4:195

Taxation Evaluating Tax Shelter Offerings,

by Larry Yancey .4:185 In-House News (UALR Faculty News: Article by Oliver) . .4:194 Law School News 1:20 Wills Estate Planning and Will Drafting,

by Rupert A. Stuart 2:54 Wrongful Death Law School News . .......•... 1:20

CASES Aetna Casualty & Surety Company v. Broadway Arms Corporation 2:48 Affiliated Capital Corp. v. City of Houston 3:126 Barger v. Petroleum Helicopters, lnc 1:5 Bradwell v. lllinois .4: 179 Carroll v. Protection Marine lnsuronce Company, Ltd 1:5 Catalina Cablevision Assoc. v.

City of Tucson 3:132 City of Lafayette v. Louisiana Power & Light Company ..3:126 Community Communications Company v. City of Bould•.......................3:1.

Executive Jet Aviation v. City of Cleveland 1:4 Foremost Insurance Company v.

Richardson 1:4 Gates v. Reese 3: 130 Gold Cross Ambulance and Transfer v.

City of Kansas City 3:128 ln Re lnterest on Trust Accounts 1:14 Kelly v. Smith 1:5 L & H Sanitation, lnc. v. Lake City Sanitation,lnc 3:130

Ledoux v. Petroleum Helicopters, lnc 1:5 Mt. Healthy City School District Board of Education v.

Doyle 1:20 Parker v. Brown 3:126 Peytavin v. Government Employees lnsurance Company 1:4 Smith v. Pan Air Corporation .. 1:5 Unity Ventures v. County of Lake 3:127 Weinstein v. Eastern Airlines .. 1:4 Westborough Mall, lnc. v. City of Cape Girardeau 3: 127

ATTORNEYS Allen, H. William 1:2 Allen, H. William 1:43 Anderson, Philip 1:2 Arnold, Richard Lewis " .. , .3: 136 Arnold, Richard S 2:lI4 Arnold, Richard Sheppard .. 3:136 Arnold, Sheppard 3: 136 Arnold, Thomas Saxon 3:136 Arnold, William Hendrick 3: 136 Arnold, William Hendrick III 3:136 Averill, Dean Lawrence H 1:2 Bailey, Bob, Jr. . .4: 176 Baker, Charles W 2:lI5 Barrier, W. Christopher 2: 109 Barrier, Chris 3: 122 Barrier, Chris .4: 164 Beard, Roy T 2:115 Block, Marc A. Sandy 1:24 Boe, Tim 1:2 Boyce, Edward .4:191 Branch, Robert B 1:44 Brill, Howard W 1:2 Britt, Judge Henry 1:2 Brown, Justice Lyle .4: 177 Bullion, Judge Bruce 1:3 Burnside, Mollie Aurelle .4: 182 Burrow, Pat .4:191 Calloway, Donald Paul 3: 135 Carpenter, Thomas M 1:2, 1:43 Carroll, Phillip .4: 192 Carter, Ada Marett , .4:182 Cearley, Bob 2: lI6 Chambers, Erie 4:180 Chambers, Melvin Thayer. , , ,2:60 Clark, William M 1:43 Clegg, Carolyn].

1:44 Clinton, Annabelle 2:lI5 Crawford, Mike 2:llI Crawford, Mike .4:191 Cremeen, Charles .4: 191 Crouch, James E 2:lIl October 1984/Arkansas Lawyer/199

Daggett. Jesse B. III . .4:172. 4:173 Daggett. Jimason J. . .4:173 Daggett. John Mayhew 4: 172. 4: 173 Daggett. W. H .4:172 Dale, Lois .4: 182 Deacon. ]. C 1:2 Deacon. John C .4:162 Dicker. Sheryl 2: 114 Dillahunty, W. H. "Sonny" .. 3:121 EIcan, Frank II 1:2 Elcan. Frank C. II 1:44 Elderkin. David M. .

2:53 Farrar, Clay P.. Jr 1:44 Filion, Garvin 1:2 fleming. Victor .4: 175 Fogleman. Judge John A 1:2 Fogleman. John 4:191 Fogleman, John A 4:160. 4:161. 4:192 Friday, Herschel 1:2. 1:3 Fussell. Robert F 2:115 Fyler. Lizzie Dorman . .4: 178. 4: 180 Gill, John P 4:162 Gingerich, James D 3:140 Gist, Morse U 2: III Glasgow, Roger A. . ..•...... 2:48 Glover. Mac 3: 156 Glover. Mac 4: 196 Goodson. Judge John 1:3 Hale. Milas H 1:43 Hamilton, Herman L. 1:2 Harris, Judge Eugene 1:2 Harwell. Charles .4:191 Hatfield, Richard F 1:2. 1:44 Haught. William D. .

1:44 Hearnsberger, Marcia 2: III Henderson, Ann .4:191 Hendricks, Lowber 2: 115 Hickey, Joseph 2:114 Hickman. Darrell 1:43 Hollingsworth. Cyril 1:2. 1:43 Holt, J. Frank 1:7 Huie. C. R. (Dick) 3:134 Hurley, Louis Edward 1:8 Hyden, James W 2:115 James, Patrick R 3:126 Jones. Terry D 2: 115 Jones, M. Samuel III 2:111 Jordan, Steve 1:2 Kilgore. Collins 1:44 Kirkpatrick. Terry R 2:115 Kizer, Judge Bernice 1:2 Lambert. Robert J 1:43 Larrison. James H 1:44 Lester. Mark 1:43 Linberger. Judge John 1:3 Lindsey. Paul E. .

1:2 Lipson. Ashley S 2:104 Lively. R 4: 181 ZOO/Arkansas Lawyer/October 1984

Livingston. John Fred 2:60 Looney. Dean J. W. .

1:2. 1:3 McCaskill. Martha Miller 1:43 McCollum. Sidney H 1:43 McCorkindale. Judge Robert W 1:3 McDaniel. Bobby R 1:44 McDiarmid, Clara .4: 180 McKenzie, James H 3:156 McLarty. Jim 2:116 McNulty. Jack A 1:3 Matthews. Stephen A 2:116 Meeks. Russell 1:2 Miller, Martha 3: 151 Miller, Martha 4:196 Moose, Virginia Darden .4:182 Moore. Harry T 1:44 Nutt, James Neal 1:7 Overbey. Thomas L. 1:44 Overbey. Thomas L 2:114 Oberlag. Kaye 1:44 Overton, William R 2:115 Patty, Clay 1:43 Paulson. Terry C 1:43 Paulson, Terry C 2:111 Pearson, Judge Gerald 1:2 Perroni, Samuel A 1:43. 1:44 Pritchard, Michael F 1:2 Raley. Phillip A 1:44 Raley. Phillip 2: III Ramsey, Richard L 1:2. 1:43 Ray. Tom 3:151 Rhine, L. V. . .4: 176 Richardson, Charles T., Jr. ..4: 177

ATTORNEYS SEEK POSITIONS Highly talented. hard working husband/wife attorneys seek to relocate in Arkansas. Outstanding references and achievement. Ex-

perience primarily in all aspects of anti-trust. and civil and criminal litigation. but desirous of more generalized practice. Interested in establishing relationship with sale practitioner for small firm. and will bring some business.

Contact:

E. Kaplan and K. Curtis 4709 W. Braddock Road Alexandria. Virginia 22311

Ridgeway. Robert. Jr 1:43 Ridgeway. Robert D.. Jr 3:151 Rieves, Elton A .. Jr 3: 134 Riffel. Edward Riddick .4: 177 Robben, ElizaMth].

1:43 Ross. James A 2:60 Sewell. Frank B 1:43 Shackleford, Dennis 1:3. 1:43 Shackleford. Dennis L. 2:116 Shackleford. Dennis L. 3: 119 Shackleford. Dennis 3: 156 Sharp. James B .4:192 Shields, Sarah .4: 182 Simpson. James M. .

2: III Simpson, Judge Harrell A., Sr. . .4: 176 Skinner, H. Edward 3: 126 Solomon, David 1:3 Stripling. Dan 2:114 Stroud. John F.. JI. 1:2 Taylor. Sammye .......•..... 1:43 Taylor. Zachary ........•... .4:191 Tedder. Judge Cecil 1:2 Vasser. Glen 1:3 Vaught. Larry D 2:115 Wallace. Grace .4:181. 4:182 wallach. e. bob .4:167 Waters. Franklin 2: 115 Watts. Louis Ingram .4:177 Wilson. William R .4:196 Womack. Tommy 1:3 Woods. Judge Henry .4:167 1:2 Wyrick. Kelvin Yancey. Larry .4: 185

TAX ATTORNEY SOUGHT WANTED-An experienced tax attorney to assume responsibility of a tax department in a growing mid-size law firm in a metropolitan sun-belt city.

Send resume to:

P.O. Box 241833 Memphis. TN 38124-1833 Inquiries will be kept confidential.

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