VOL.28_NO.2_SPRING 1994 by Arkansas Bar Association

SAS CASES"'AND WEST'S SASCoDE oNCD~ROM

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o ARKANSAS CASES"t DWEST'S ARKANSAS CODE Q199" WEST PUBLISHING

4·9284.1/4·94

1446473

Results 01 the Winter 1994 FAX POLL W. received 76 re.p.n••• to ••r FAX POLL Ir.m the Winter 1994 issue. With th8 readership currently numbering approximately 4,200. this is obviously not an accurate "survey" of the readership and is not intended to represent such. The FAX Poll exists to provide a format lor readers to yoice their opinions and to open discussion on issues which may be expl.red ,.rther In artlcl•••r ••••ys In the m.g.zln•. " any reader would like to comment on the issues discussed here in the form an essay or article, please send 10 Editor, Arkansas L.wyer M.guin., 400 W. M.rkh.m, Lilli. R.ck, AR 72201. a.l.w

.re the re••lts, IIg.red by perc.ntag•. S.m. p.rcentag.s will not add to 100% as more than one answer or no answer was given.

1. Incivility among lawyers: is on the increase. 89% agree 11% disagree 2. I have nol encountered any incivility among the legal profession in Arkansas. 6% agree

94% disagree

3. Ethics .nd I.w p,.ctlc. cl••••s sh••ld d••1with the civility I..... 100% agree

-0- disagree

4. Lawyers can remain civil and stili be strong advol;ates for their

cll.nts. 100%

.gre.

-0- disagree

5. C.mp.tltl.n d.mand. t••gh lItigati.n t.ctic., incl.ding b.h.vi.r some might consider uncivil. 6% ogre. 94% di••gre. 6. C••rt rules s.nctionlng .nclvll b.h.vi.r w••ld .ff.ctively red.c. this problem. 53% agree 47% disagree 7. Lawy.rs.re j••tt.o sensitive. 5% .gre. 95% dis.g". B. Clients expectations sometimes drive olherwlse civil lawyers to engage In uncivil behavior. 67% agree 33% disagree

Lawyer

The Arkansas

FAX POLL Are You Preserving the Trust? This year, the theme of the Arkansas Bar Association Annual Meeting is "Preserving the Trust." The theme was developed by President Lamar Pettus and his wife, Donna after the two thought and talked about what being a lawyer truly meant. In this FAX Poll, we want to know what Preserving the Trust means to you and if you feel you are doing that.

1. Rank the following in importance towards serving the public and therefore preserving the public's trust: _ _ Serving your clients individual needs

6. Do you think lawyers should be required to donate legal services to one public board in their community as part of their pro bono quota? __ yes

7. Should the Arkansas Bar Association do more towards recognizing public service by attorneys? __ yes

_ _ no

8. Would you like to see the Association publicize members on boards! committees helping their communities or do you think this should be done by the local bar associations?

___ Being an active Community Volunteer ___ Seeking justice reform

_ _ no

__ yes

_ _ no

__ Arkansas Bar Association Local Bar Associations

___ Serving as a public servanl I.e., Senator, Representative

9. Do you read the OYEZ! column in 9. Th••• who "can1 .tand the h.ar.t lItigati.n .h••ld "g.t ••1., tho kitchen." 22% agree

18% disagree

2. Do you serve in a governing body in

__ yes __ yes

10.

Incivltlty i•• pr.bl.m c.nlln.d t•• '.w .re•••t pr.ctic•. 19% agree

81% disagree

11. Incivility i•• m.j.' pr.bl.m lacing the prot•••i.n .nd should b. .ddre...d by the Arkans•• a., As••ci.U.n. 83% agree

make .ncivil I.wy.rs ·clvillz.d.' CIvility I••n Individ•• 1 tr.it th.t .ho.ld dev.l.p with ag., .xperl.nc••nd m.t.rtty." "One ollhe reasons that lawyers are so incivil towards each other is

tav.r ot 'What c.n I legally g.t .w.y wllh?' H.wever, this Is .11 secondary to the primary problem, there are simply too many lawyers. This overabundance has degenerated a once-honorable

pro,...i.n Int•• d.g-••t-dog tre.-I.r-.II wh.re .nythlng g•••."

00 you think the Association's Lawyer Referral Service is a worthwhile public service program?

10.

3. Do you serve on a public board in your community? __ yes

__ yes

Why?

4. Do you serve on a private-charitable board in your community? __ yes

_ _ no

th.' I.w .ch••1h•• t••ght th.m t. 'think Ilk. I.wy.rs.' Th. " ••11 Is that terms such as 'civility' and 'morality' have been cast aside in

_ _ no

17% disagree

Comments Included: "Neither court 'rules' nor Bar programs will

the Association's NEWSBULLETIN?

your community?

5. Is this kind of service pro bono or dedicated legal service? __ yes

_ _ no

11. Are you a member of the Lawyer Referral Service? __ yes Why?

no _

Herschel H. Friday A lawyer Citizen Without Peer By William H. "Buddy" Sullon

A tree is best measured when it is down. - Woodsman's Proverb Even at age 72 the robust health, inexhaustible energy and kaleidoscopic interest of Herschel Friday established a pace that seldom allowed pauses to reflect upon his accomplishments or to take his measurements. When he died unexpectedly in a plane crash on March 1, 1994, a closer look was in order. Even those who knew him best found that his quiet modesty had concealed the depth and breadth of his labor. Sincere tributes in unprecedented numbers and forms appeared in media stories, editorials, ads and testimonials from the ew York Times to small, inhouse publications. Born Februa ry 10, 1922, in Lockesburg, Arkansas, Herschel attended schools in Horatio and later in Little Rock. He was a graduate of Little Rock Junior College and received his law degree from the University of Arkansas Law School in Fayetteville in 1947. After serving as a lecturer in la\\' at the University of Arkansas and as law clerk for United Stales District judge John E. Miller, he joined the law firm of Mehaffy, Smith and Williams (now Friday, Eldredge & Clark) in 1952. He had served as senior partner of the firm from 1974 until his death. Herschel's distinguished service to the law profession and to humanity in general brought him many honors and citations of gratitude. In 1971 he received the Outstanding Lawyer Award from the Arkansas Bar Association and the Man of the Year Award from the Arkansas Democrat. He was March of Dimes 4 ARKANSAS LAWYER

SPRING 1994

Citizen of the Year (1981), recipient of the Harrison Tweed Award (1979), Distinguished Alumnus of UALR (1976), Arkansan of the Year Award by the Arkansas Easter Seal Society (1989), William F. Rector Award for Distinguished Civic Achievement by Fifty for the Future (1989), and Distinguished Citizen of the Year by KARK-TV and the Office of the Governor (1992). In 1993 the Herschel H. Friday courtroom at the UALR School of Law was dedicated in his honor. As a member of the American Bar

Association, Mr. Friday served on the ABA's Executive Committee, Board of Governors, House of Delegates, Standing Committee on Continuing Education, Consulting Panel on Advanced Judicial and Legal Education, and the Task Force on Professional Competence. Mr. Friday also served on the Board of Directors of

the American Bar Endowment, as a Fellow of the American Bar Foundation Board, the American Judicature Society, American College of Trial Lawyers and the American Bar Institute. Within the Arkansas Bar Association, of which he was a member, Fr. Friday served as President. Chair of the Executive Council and Chair of the Law School Committee during his career. At the time of his death, he was the longest standing member of the Board of Directors of Arkansas Children's Hospital, a position he held since 1952. He was also serving on the Board of Directors of First Commercial orporation, Creat Lakes Chemical Corporation, Dillard Department Stores, Inc., and as a member and Secretary to the Board of Directors of Oaklawn jockey Club, Inc. He was a former member of

the Board of Directors of Union Pacific Railroad Company and Southwestern BeU Corpora tion. Richard s. Arnold, Chief judge, U.s. Court of Appeals for the Eighth Circuit wrote of Herschel: There was never anything grudging about him, no holding back, no residue or smallness. When public duty called, he answered gladly. It was not merely his duty, it was his habit, to do his utmost. He gave full measure, pressed down and running over. I recall especially one time that was unhappy for Herschel. There was reason to think he would be appointed to the Supreme Court. At the last minute, somebody else got the job. Some people - even some people in the American Bar Association - said Herschel was not qualified. This was nonsense of course; but the important point is that in the aftermath Herschel Friday demonstrated qualities of heart and character more valuable than any public preferment. He would not criticize the American IBar, which he had loved and served and continued to serve. He would not voice a word of bitterness. He just kept on being Herschel Friday - a lawyer citizen without

peer. Herschel is survived by his wife, ancy Elizabeth Friday; two sons, Gregory David Friday and Stephen Herschel Friday, and four grandchildren. Memorials can be made to Arkansas Children's Hospital, the Arkansas Bar Foundation, Herschel H. Friday Scholarship Fund, or the University of Arkansas at Little Rock School of Law, Herschel H. Friday Law Library Endowment.

VOLUME 28, NUMBER 2 PUBLISHER

Arkansas Bar Association EDITOR & ART DIRECTOR

Paige Markman Director ofPRlMarketing

.,Arkansas Lawyer In This Issue:

,\RKA:'\SAS BAR ASSO( IAIIO:'\

Special Tribute to Herschel H. Friday

,00 \\. \larkhJIll I inlc Rock, ArkJ",", -2201

Letters to the Editor

8 10

In Memoriam

OFFICERS President

E. Lamar Pettus Presidenr路Elecr Robert L. Jones III Immediate Past President John P. Gill Secretary -Treasurer Jeanette L. Hamilton Executive Council Chair Russell Meeks III Young Lawyers' Section Chair Brian H. Ratcliff Executive Director William A. Martin Associate Executive Director Judith G ...y

EXECUTIVE COUNCIL Joe Benson William Clay Bmil Thomas M. Carpenter Michael H. Crawford

Boyce R. Davis Wendell L. Griffen David K. Harp

14 16 19 24

Dave W. Harrod

Chades L. Harwell

The Developing Law: The Expanding Role of the Guardian Ad Litem Under the Arkansas Juvenile Code By James M. Luffman By Lamar Pettus

President's Message

By Brian H. Ratcliff

General Practitioners' Primer What's in a Name? By Nancy Bel/house May ATrademark Primer for the General Practitioner ELECTIONS IN ARKANSAS: Are We Doing it Right Yet? Foreword by Judge Tom Glaze Shaw v. Reno: Will it turn out like Koresh v. Reno?

Don Hollingsworth

Henry C. Kinslow Robert Lynn Lowery

Jerry c. POSt Donald P. Raney

By Matthew Horan

In Whose Court is the Ball? The Scope of the People's Power of Direct Legislation

Teresa M. Wineland

EX路OFFICIO E. Lamar Petrus Roben L. Jones III John P. Gill

By Thomas M. Carpenter

To Run or Not to Run: Legal Hurdles Facing a Candidate

Jeanette L. Hamilton Russell Meeks III Brian H. Ratcliff The Arkansas Lawyer (USPS 546路040) is published quarterly by the Arkansas Bar Association. Second class postage paid at Little Rock. Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 400 West Markham, Little Rock, Arkansas 72201. Subscription price to non+members of the Arkansas Bar Association 515.00 per year and to members $10.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to EDITOR, Arkansas Lawyer, 400 West Markham, Little Rock, Arkansas 72201. All inquiries regarding advertising should be sent to The Arkansas Lawyer at thE' above address.

By Wil/iam H. "Buddy" Sutton

By Lamar Pettus & Terr A. Tolbert

Term Limits: Panacea or Snake Oil?

49 52 55 59 60

By Jim Argue, Jr.

By William A. Martin

Executive Director's Report Book Reviews Law Practice Management: Hiring Guidelines

By Rachel Kearney

Law, Literature & Laughter

By Victor A. Fleming

Law Office Technology Column

By Stanley D. Rauls 5 ARKANSAS LAWYER

SPRING 1994

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Editor's Note: My surprise is foiled! The "LLL" colu/1/n will be replaced in Ihe Fall 1994 issue by a colullln 1II0deled after Ihe ABA JOllmal hU/1/or colullln Obiter Dicta. After IIlllCh study alld inforlllal polling, we felt Ihal opening the space up for contributions frolll all lIIelllbers could be an interesting change. Readers looking for Vic Flellling's writing can find his colllmn, a replica of Law, Literature &

Laugllter, in Ti,e Daily Record each Friday. Flellling has been wriling for Ihal publication for severallllontiis now.

It is with great regret that I read that the Law, Literature & Laughter (LLL) column was to be discontinued in The Arkallsas Lawyer as of this summer. 1 would ask that you please reconsider this decision. As a contributor and regular reader of the column (a.nd the magazine as a whole) I think to discontinue it is a mistake. Of aLi the professions out there which tend to take themselves a little too seriously, 1 think attorneys are probably the most guilty of this foible. Vic Flemings's column served to remind us all that we are people, just like everyone else. Besides, it we can't laugh at ourselves, what right do we have to laugh at anyone else? The magazine will not be the same without Vic's LLL column. Not everything written for and by lawyers has to be completely serious and legally thought provoking. Not only is there room for humor in the legal profession, it is (in my opinion) absolutely required for the mental health of attorneys. We need to be able to stand back and look at our profession and laugh when laughter is called for. We may even be able to learn something from what we are laughing at. Finally, I note that the ABA jouY/la/ has not discontinued its humor column, Obiter Dicta, even though its format has changed in recent years. I think our "local" publication should follow in the same track. So, once again, please do not cease publication of LLL! If Vic can't do it, get someone else to.

Lynn D. Lisk North Little Rock

It was with a great deal of sorrow and consternation, mixed with a little anger, that 1 recently learned that you and the other powers that be at the Arkansas Lawyer have chosen to discontinue Vic Fleming's marvelous "Law Literature & Laughter" contribution to our professional publication. I absolutely can not imagine what has come over you and the other people who may have been involved in making this decision, but you have made a grievous error. I always tremble when 1 hear that one of my favorite publications is going to be subjected to a "new format" by management/editors/publishers, because of the publishing rule that the "new" as used in "new format" invariable means "worse." The rule is being strictly enforced in this instance, most regrettably. Vic Flemming's "LL&L" has been a source of joy and enlightenment for almost a decade, and is easily one of the two or three most popular features of Ti,e Arkallsas Lawyer, issue after issue, a fact which you would have easily discerned, if you had made the attempt. But we all make mistakes, and the best of us readily admit our mistakes, and correct them. I am going to assume that you are among the best of the lot of law publication editors, and that you will, accordingly, immediately correct your error in this case. Please reinstate Law, Literature & Lallghter, immediately, and without further ado. All will be forgiven.

It's my understanding that Law, Literatllre, & Lallghter is going to be discontinued in the Arkansas Lawyer. 1 just wanted you to know that 1 enjoy that article and wish that you would reconsider deleting it from the Arkansas Lawyer. Patrick Harris Little Rock

I was disappointed to read in last month's edition that the journal will no longer include Vic Fleming's humor column. 1 have enjoyed Vic's column over the past several years and I will miss it. The humor column is not the most important part of a law journal, but 1 do think it is valuable. I think it is important for the profession to be able to laugh at itself, for the sake of our collective mental health and also for the sake of our public image. I would ask that you reconsider your decision and find a place in the new format to continue Vic's column. Marilyn Rauch Little Rock

I am a subscriber to the Arkansas Lawyer. Usually the first column I turned to is LLL. I was saddened to hear that a decision was made to discontinue this column. I feel it is both interesting, joyfilled, and fun. I hope you will reconsider and encourage Mr. Fleming to continue his work.

One of the things which 1 always enjoyed reading in the Arkansas Lawyer is the article Law, Literature & Laughter which I am aware has been written by Victor Fleming over the years. That awareness comes from my having submitted to him a contribution or two falling within the Laughter segment of unusual experiences which 1 have encountered in the practice. Recently, someone mentioned that this would no longer be included in our Bar publication and I am writing to encourage its retention as a devoted reader over the years.

Peter A. Miller Little Rock

William J. Wynne 61 Dorado

Timothy F. Watson, Sr. Newport

7 ARKANSAS LAWYER

SPRING 1994

I loved Vic Fleming's "LLL" column and reaLly hate to see you discontinue it. It was the one thing I read every single

It's just like having to work all day without having a laugh or two. It relieves stress. It is something to look forward to lhrou~h

month· and it teaches as well - while

whiJe you are reading

entertaining us with the bloopers of our colleagues, it makes us more careful in our own work. Maybe you could reconsider?

articles and dealing with the sadder issues like lawyer discipline and deaths. Again, keep up the good work but please leave some fun for us to look forward to in each issue.

Kitty Gay Fayetteville

the heavier

Robert R. CIoar Fort Smith

I think you have always done an excellent job with The Arkatlsas Lawyer. I hope you keep up the good work. I also hope that if you retire the Law, Literature & ulIlghter as was announced in the January column, that you will at least replace it with something that is humorous. A magazine like Tile Arkansas Lawyer can be rather depressing if there is not a humorous column, story, cartoons, etc.

It is with great pleasure that I have read and enjoyed the column Law, Literatllre & Laughter in TI,e Arkatlsas Lawyer. Unfortunately, I now understand that this column has been retired. I sincerely regret the absence of this column, as it has provided great enjoyment to me and many others.

I read with dismay in the Winter edition of Tire Arkansas Lawyer that Vic Fleming's regular feature lAw, Literature & Lnughter is being retired soon. As this is

sometimes the only thing I read in its entirety, and definitely one of the most entertaining features in your pubLication, I would like to register my complaint at its untimely demise. I plan to make my feeling known to Vic as well, but in the meantime I thought you might be able to persuade him to continue for at least another ten years. Thanks for allowing me to have my say. Congratulations on your efforts in putting out a quality bar magazine. Catherine L. Hughes Conway

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Harvey D. Booth,95, of Hot Springs died in February. A childhood resident of Hope, Mr. Booth was a lawyer with offices in Benton and Mena, a teacher, and a Paul Harris Fellow in Rotary. He was an ordained minister and founder of First Christian Church in Vero Beach, Florida. Survivors include his wife, Vlasta Booth of Hot Springs; a daughter, 1.0. jones of Lee's Summit, Mo.; a son, Robert Booth of Granville, Ohio; six grandchildren; and two greatgrandchildren. Memorials may be made to First Christian churches in Hope and Vero Beach and National Park Christian, Hot Springs.

MEMORIAM

Then-Governor BiB Clinton appointed Parker a circuit judge in 1980. He was chosen Outstanding Trial Judge by the Arkansas Trial Lawyers Association for 1982-83. He was elected Circuit Judge in 1985, a post which he held until his death. Parker was president of the Jonesboro Lions Club, a member of the Craighead County and Arkansas bar associations and the Arkansas Judicial Council. Parker was a founding partner in the law firm of Parker, Henry & Walden. He also

served

deputy

prosecutor for

Craighead County. Survivors include his wife, Anita Parker; a daughter, Claire Nix of Jonesboro; a son, Chris Parker of Little Rock; a sister, a brother, and three grandchildren.

OLAN PARKER, JR.

FRED M. PICKENS, JR.

Circuit Judge Olan Parker Jr. of jonesboro died in March. He was 76 years old.

Fred M. Pickens, Jr., 77, of Newport, died in january. Pickens was a senior

I I

~f!r:rJ

~ â&#x20AC;˘ [I I i

partner in the Newport law firm of Pickens, Boyce, McLarty and Watson and was a director and general counsel for the Merchants and Planters Bank of Newport. He was a friend, confidant, fund raiser and advisor from Democratic governors from Sidney S. McMath to Bill Clinton. He was the only Arkansan ever to serve as chair of the Board of Trustees of both Arkansas State University and the University of Arkansas. He was also the first Chair of the Arkansas Bankers Association's Directors' Advisory Committee. He was named Outstanding Lawyer by the Arkansas Bar Association in 1977. He was a fellow of the American College of Trial Lawyers and of the American College of Probate CounseL He served as President of the Arkansas Community Foundation and was a member of St. Paul's Episcopal Church in Newport. Pickens is survived by his wife, Eran Bartley Pickens; a daughter, Eran P. West of Fort Worth, Texas; a sister and four grandchildren.

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THE DEVELOPING LAW

In the second half of twelfth century England, Henry II decided that English justice should be equally available to aU his subjects and the King's Bench Courts were established. In 1215, at Runnymede, King John was forced to sign the Magna Carta,

which in its theoretical form acknowledged that the "state" was constitutionally bound to honor the basic rights of certain of In 1989, the Supreme Court of Arkansas determined that juveniles were included in the classes of persons entitled to those basic

rights. l That historic decision established that if juvenile matters were to be supervised by the judiciary it would have to be by a real judge everywhere in the state rather than the mixed system of non-lawyer county judges and referees. The decision also established that if the social matters affecting child welfare were to be in the courts at all, then those courts would be ones equipped with the traditional powers of the judiciary to insure the constitutional rights of juveniles and their parents. The Arkansas General Assembly replaced the overturned juvenile system with Act 273 of 1989, (the new juvenile code) and Act 949 of 1989 (establishing the new circuit-chancery judgeships). After nearly four years, one of the most important developments beginning to be apparent under this new system is the expanded role of the guardian ad litem. Section 15(e) requires the court to appoint a guardian ad litem in all proceedings involving the custody of juveniles. This requirement has been met in some districts by legal services corporations taking a percentage of the appointments and the private bar accepting the remaining appointments. The guardian ad litem's role in Arkansas has historically been passive. in rare cases, the role has been confused with the role of the social worker. 2 Act 273 resolves any confusion that might have remained by defining the role of the guardian ad litem as that of an attorney appointed to represent the best interest of the juvenile and to advocate for the juvenile's articulated wishes. 3 It also defines the means by which the lawyer may accomplish that: first, he is entitled to virtually all information in the hands of the parties,4 and, second, his participation includes presentation of evidence, prehearing and posthearing motions, examination and cross examination of witnesses, and appeals. It is clear from this description that the role contemplated by the juvenile code is strictly that of a lawyer. otably absent in the code is any attempt to make the guardian ad litem a "friend of the court," or an investigator, or court-appointed expert who testifies or makes ex parte communications with the court. Also, there is not a hint anywhere in the code of any suspension or exemption of the ethical

ARKANSAS LAWYER

SPRING 1994

requirement of Rule 3.7 Rules of Professional Conduct, that the lawyer shall not act as an advocate where the lawyer is likely to be a witness. However, the fact that the lawyer's client may not be able to make informed decisions for himself place an extra burden on the lawyer's participation, an extra burden recognized by Rule 1.14, Rules of

"First, the juvenile code assumes that the Arkansas Department of Human Services will have the safety of the child as its overriding concern" Professional Conduct: "(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, ... because of minority the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." The qualifier "as far as reasonably possible" implies an understanding that a six month old child cannot decide whether to ask for Rule 11 sanctions, but the canon clearly expects the lawyer not to abandon his role as a lawyer for the role of a guardian or social worker. That six month old chiJd is stiU a client. Clearly, these limitations on the role of the guardian ad litem have nothing to do with how vigorous the lawyer is; just with how he does what has to be done for his client. In many districts, the role of the guardian ad litem has become an extremely activist affair, with attorneys taking vigorous positions for their underage (and sometimes uncommunicative) clients contrary to positions of both the parents and the Arkansas Department of Human Services and their contract agencies. There are some underlying reasons for this, and they relate to some fallacious assumptions which are part of the underpinning of the juvenile system. First, the juvenile code assumes that the Arkansas Department of Human Services5 will have the safety of the child as its 12

ARKANSAS LAWYER

SPRING 1994

overriding concern. Second, it assumes that community based services are available in fact, as going concerns, not just on paper. Third, it assumes that the state's psychiatric services are as extensive as the statutes say they are and that they are available to children. These assumptions are only assumptions, and they "ain't necessarily so." The Arkansas Department of Human Services functions on a local It::vd in dirt::Ct proportion to the qualifications of its county DCFS supervisor. Like lawyers, some are good, some are not 50 good, so in a given case, the department may show little or no interest in the safety of a child. Lnsofar as community based services are concerned, very few services exist outside of the largest towns; much of what is available is in Pulaski County. As to the availability of psychiatric services, anyone who has dealt with the State Hospital knows that it is woefully understaffed, and with a few exceptions, is not available to children. Only the overcrowded regional mental health centers are there with their lengthy waiting lists for evaluation and treatment. Undoubtedly the inaccuracy of the assumptions as to the avaiJability of social services have contributed most to the Arkansas bar getting into the world of juvenile services with such vigor and to such a great extent. It is probably useful to look at some examples of what happens when the failure of one of these underlying assumptions is a factor in the case. These examples are all from Benton and Carroll counties and are documented. 1. A fifteen year old girl under suspicion for several burglaries and theft of firearms was taken into custody by a law enforcement officer in the early morning hours. He found her at a pay phone arranging "tricks." She was taken to the local police station where the Juvenile Intake Officer was called with a recommendation for detention because of the juvenile's out of control behavior. The Juvenile Intake Officer told the arresting officer to call the child's mother to come pick up the child. The child was not released on signature because her mother worked a night shift at a local pouJtry plant and was unwilling to get off work to do it. The Intake Officer called DHS to ask for foster care when it was alleged that the child had serious emotional difficulties and had been sexually abused by the mother's live in boyfriend. All foster homes in the county were full, and as an alternative to foster care in an adjoining county, DHS offered to do a home study on the mother's home to show that it was not as bad as reported. The

resulting study found that the home was a model one, perfectly suitable for the child, and that there was no sign of an abusive live in boyfriend. What the study didn't mention was that while the mother did not have a live in boyfriend at that moment (because he went out the back door when the worker came in the front) ,the child's 13 year old sister did. The younger sister was living in her mother's home with her 17 year-old boyfriend, who was at the time a juvenile probationer with a history of violence and sexual abuse.6 As it happened, a community based provider was supervising the boyfriend's probation under contract with the county and was aware of the situation at the time the home study was done. The community based provider didn't want to blow the whistle because it felt it would lose the probationer (or at least the funds it was being paid to supervise) to the Youth Service Center. It also believed that the girl's situation was a dependency-neglect situation and that alerting the court would get them into an uncomfortable situation as a "whistle blower" with DHS on whom they depended for their continuing contract in another area of service for which DHS provided the funding. It was a guardian ad litem who rooted all this out at a hearing by cross examination and by calling one witness, a probation officer. Everyone involved in the case other than the guardian ad litem had some interest other than the welfare of the child. 7 The case profoundly makes the point that contrary to our belief that the Department will want to act sua sponte in the interest of children, in general, as an institution, it doesn't want to act at all. 8 The Department seeks to avoid trouble rather than place its ship in harm's way, and delinquent, abused and neglected children are trouble. 2. An orphan teenaged girl from Benton County suffering from depression made a second suicide attempt by getting up on a roof. She was successfully "talked down" by police and a social worker who attempted to get inpatient psychiatric care for her from DHS. Her placement in an inpatient facility was refused by the department because since she was off the roof, her suicide was no longer imminent. The issue wouJd have died there (and perhaps the girl would have too) but for the dogged determination of a legal services guardian ad litem who filed a motion for an order to make the Department do what they should have done without an order, namely get the girl to a psychiatric ward of a hospital. This reaction of the department was in keeping with "policy." For the past few years, at least the Department has pursued

a conscious policy of attempting to reduce their involvement in child protection by discouraging workers from opening new cases and vigorously attempting to get out of the cases they are already in. This policy has been advocated by both the top and the middle management level of the DHS bureaucracy who are out of social work and removed from the children and families their decisions effect. This DHS policy was enunciated by changes to the DCFS operating manual sent out under cover of correspondence from the former DCFS director, Richard Dietz. dated August 30, 1990. This change instructed DCFS workers not to act where the danger was not immediately life threatening or where it was bad misconduct. Under this policy, unless abusive custodians get caught in the act, the Department is not likely to take custodial protective action, no rna tter how many bones are broken, because there is no immediacy of the threat to the child. 3. A young arsonist was committed to the Youth Service Center for a residential arson. He had been diagnosed as borderline retarded and suffering from an emotional disorder. Prior to the arson, he had been in long term psychiatric care in Missouri but had been removed from care against the advice of his psychiatrist by his mother who just didn't think anything was wrong with him. The Youth Service Center tried to release him to three different long term care providers, but they all refused him because of the danger of arson. The State Hospital refused the child because he was too young. The Youth Service Center released the child to his mother without treatment. In a large number of juvenile cases, psychiatric services are needed in delinquency cases as well as those involving child abuse. Where there is no private or community psychiatric service in the community, some guardians ad litem have succeeded (although the attorney in the case of the arsonist did not) in getting that kind of care for children by simply asking for contempt citations against the DCFS supervisor when the court- ordered psychiatric services have not been arranged by DHS. It works because the only answer DHS has to the citation is that the agency itself discriminates in the services it provides based on age. Faced with the prospect of having someone go to jail, DHS has arranged for private psychiatrists, out-of-state hospitals, and other innovative methods of getting this important medical service to children who need it. The Youth Service Centers9 have relied heavily on community~based programs since they have no parole officers.

Typically, the community-based provider is charged with finding a place to put a juvenile on release and to see that he has whatever continuing services he needs. The service is called "reintegration." Reintegration in orthwest Arkansas rarely is more than a telephone to the parents to ask if they have a place for the juvenile. Routinely there is no attempt to verify that the parents are living at the place to which the juvenile is being released. Juveniles have been released to both juvenile and adult co-defendants, juvenile and adult operators of juvenile "crash pads," a.rmed neighborhoods ready to shoot the juvenile, all with the approval of a community-based provider which approved the "reintegration" without having a caseworker even leave the office. The youth service centers generally have denied any responsibility for this obvious breakdown in the system because they are paying a community based provider to do the job. The provider generally mitigates its responsibility because DHS doesn't pay them enough to do any more than they do. lO A guardian ad litem responded to the lack of reintegration services by moving the court to retain jurisdiction for determination of custody on release. Section 30 of Act 273 clearly implies continuing jurisdiction by the committing court in delinquency cases, and guardians ad litem have easy access to the family information from local probation offices, law enforcement agencies, and from local DHS caseworkers who in many cases have worked with the family for years, but who are almost never consulted in the reintegration process. By making use of the continuing jurisdiction, the custody hearing, and the easy access to family information, guardians ad litem are able to obstruct the placement of their clients in circumstances that in part led to their involvement with the courts in the first place. When the Department's philosophy of not getting involved and the absence of community based providers coincides in a given case, the guardian ad litem is usually the only person available to force action for the assistance of the child, the judge having been removed from that role by the decision in Keitt v. U.S., 383 U.s. 541 (1966). After adjudication under Act 273, the judge has wide discretion in requiring the Department to act under Section 33(a), Section 34(c)(2), and by the court's review powers under Section 27(d) and Sections 36 and 37, but as a practical matter, he can only act on the information the guardian ad litem gets on the record. Many attorneys who have become recently involved in the system seem to be

scratching their heads in wonder over how they came to be involved in something they used to consider just a step lower than justice of the peace court. The Bar came to occupy this position in the system when lawyers started being called upon in large numbers by what is now a circuit/chancery court to defend delinquency cases. The right to counsel is clear and constitutional in delinquency cases. l l It is also mandated by the Juvenile Code that juveniles be represented in families in need of services 13(a) and in proceedings where custody is in question in Section 13(e). What is not clear is whether Section 13(d) limits those cases in which an attorney for the child is required under Section 13(a) or if it broadens the requirement to apply to such cases where involunta.ry commitment or foster care in a restrictive setting is in issue. The appointment of an attorney in other than delinquency cases probably is not constitutionally required,12 but Act 273 seems to assume that one generally will be appointed. Many attorneys are uncomfortable with the position of having to oppose both the parent and the Department, a position into which they repeatedly get thrust. Also troubling to the attorney is the fact that in many cases, the wishes of the child are not articulated, and even if they are, they are sometimes suspect.13 It is not part of our training to decide how to act on behalf of a client with whom we cannot talk and against the wishes of his legal guardian. evertheless, with good lawyers it gets done. It should be more than parenthetical to note why the practicing lawyer (of all people) has come to fill this vital role of protecting our children even from his own parents and the state. First, our age-old problems with children have been placed

"Many attorneys are uncomforlable with the position of having 10 oppose both Ihe parent and the Deparlmenl, aposilion into which Ihey repealedly gellhrusl." 13

ARKANSAS LAWYER

SPRING 1994

in the courts by society, and the people who traditionally deal with those problems don't understand courts. Lawyers mostly do. Second, judges care about the children in their courts, and they know that for most lawyers, protection of their clients is not an abstraction; it is personal and immediate. Finally, because of training or instincts, most lawyers' dedication to their client is independent of who is on the other side: it can be a good guy or a bad guy, but the lawyer is on his or her client's side. 14 Act 273 operates in an imperfect world, and in this little corner of that imperfect world, the Arkansas lawyer acting as a guardian ad litem is usually the best protection from abu e and neglect the children of Arkansas have. In the ranks of DHS lawyers are both knowledgeable and dedicated professionals. But they are stuck with their client, and they have to defend their client just like a criminal lawyer defends his. Unless the legislature makes fundamental changes in the code, or the Bar revolts at having numerous poorly paid appointments in children's cases, this role of the lawyer in the issues of children's rights and safety is likely to increase. When one has the opportunity

to see the gratitude in the eyes of some of the children, many may conclude that the lawyers benefit from the role as much as the chi Id reno Endnotes 1 HilI/Oil V. Savage, 298 Ark. 256 (1989).

2. Trammel

/som, 25 Ark.App. 76

(1988). 3. Section 15(e). 4. Section 15(e) (2). 5. Referred to in this article as "DHS"

or simply "the department". DCFS means Division of Children's and Family Services, the division of the Department of Human Services which is charged with providing social services. 6. Needless to say, the boy was in violation of his probation in a number of particulars. 7. The outcome on this one has SO far been positive. After over a year in a psychiatric facility, the child made good progress emotionally and is in therapeutic foster care. 8. That is not to say that individual caseworkers don't want to act; they do. The point is that the well intentioned caseworker must overcome an enormous inertia in the agency. One of the principles of bureaucracy is that any agency over time will seek to increase its

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authority while at the same time decreasing its responsibility. Although they operate 9. independently of the county DCFS offices, the centers are part of the Arkansas Department of Human Services, and when a child is committed, custody of the child is placed with DHS. The same standards for placement apply when the Youth Service Center places a child in a home as apply when the county DCFS does it. 10. This experience is in contrast to some other areas of the state where juvenile workers speak very highly of the reintegration services. At best, the quality of the services are extremely uneven throughout the state, and there are no uniform standards by which the services can be judged. 11. III re Gault, 3 .87 US. 1 (1967). 12. Parham V. J.R., 442 U.S. 584 (1979). 13. See C. Layman, REAL ISSUES IN CHILD SEXUAL ABUSE CASES (2d Ed. 1988).

14. Sometimes attorneys don't understand from whom they are supposed to be protecting the child. A particularly confused attorney was representing a four year old battered child removed from her home where her abuser still resided. The child victim was not a witness in the probable cause hearing, so the DHS attorney and the parent's attorney requested that the child be excused. The guardian ad litem clasped the child's hand, and said "Your honor, my client has a constitutional right to be present and hear the case against her; I demand that she be allowed to remain."

James M. Luffmall is a solo praclioller ill Rogers, Arkallsas. This is his first arlidefor Ti,e Arkallsas Lawyer.

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PRESIDENT'S

MESSAGE

By Our Silence Others Rule By lamar Pettus

Before addressing my real concern, 1 want to thank each of you for the wonderful experiences you have allowed Donna and me to enjoy. I now understand the emotion displayed by the presidents whom I have witnessed give their farewell. Although the office comes with a substantial price, if given the opportunity, I highly recommend you chose to serve. I would gladly step forward again. To my bar staff, thanks for being there for me. To many the Arkansas Bar staff is Bill Martin and Judith Gray. But behind the scenes are also a wonderful group of hard working people willing to give their best. Deb Garrison, Carol King, and Penny Blake, provide the impetus behind the fine CLE we enjoy. Virginia Hardgrave fielded the numerous Lawyer Referral Service calls and now that Penny is gone, provides support for Deb and Carol. Sara Landis edits and produces a consistently exceLlent periodical we call THE NEWSBULLETIN. Paige Markman, the editor of Tile Arkansas Lawyer continues to bring honors to our Association, having recently added to her numerous awards the Public Relations Society of America's prestigious Prism Award for her article "I'm from Arkansas" which was printed in the December, 1992, issue of Til. Arkallsas Lawyer. Joyce Bobbitt maintains excellent and accurate books and keeps us on friendly terms with our creditors.

Barbara Tarkington does a great job making sure your address is correct, registering you for seminars and administering the Association's mailouts. Jeri Rutledge provides excellent administrative support for Judith and other staff members. And finally, but not last or least, Kimberly Witherspoon does any task assigned in a friendly and pleasant manner. J also welcome our newest member, Lisa Pendarvis, who is our receptionist and handles Lawyer Referral calls. I suggest when you are in the Bar Center, after your visit with Judith and Bill, take time to get to know the other members of our staff who serve us so well. They are respectful and proper, but I call them my friends and am thrilled to have shared this year with each of them. Thanks for your work, your support, and your openness. My frustration is with the system, the profession, the Association for, in each, the lawyers as a profession have retreated from leadership roles and by our silence others rule. The Editor of a local paper recently complained that the lawyers were responsible for all the bad laws with which businesses had to comply. In response Boyce Davis, an Executive Council member, noted that lawyers occupy only 14 of the 35 seats in the Arkansas Senate and only 12 of the 100 seats in the House. Boyce explained it did not use to be that way, but now farmers and insurance agents make the laws by which Arkansans

are governed. It is by our silence others rule! The same apathy rears its ugly head in our own Association. It is evidenced by two votes taken this bar year. The Association could not muster 50 percent of our membership to vote to endorse a constitutional amendment to allow our Governor to retain the powers of office when traveling outside the State. J rationalized you did not return the ballot because you thought the proposed amendment was a political issue on which the Association should not take a stand. I never could convince myself you intended not to return your ballots. But by our silence others rule. I submitted the issue just to test you, to emphasize how cumbersome and possibly embarrassing Article XV of our Bar constitution could be to our Association. To my surprise only my friend Russ Meeks challenged my authority to put the issue to a vote. Russ has done an excellent job for the membership this year and in many previous years. I am indebted to him! I appreciate Russ's willingness to challenge and ask questions. The IOLTA referendum turned out a larger vote, but almost 50% of you failed to respond. If yOll intended to vote "No!," you lost. Again, by our silence others rule. The message to the Arkansas Supreme Court is the Arkansas Bar Association endorses mandatory (OLTA accounts for all eligible lawyers. It was 15

ARKANSAS LAWYER

SPRING 1994

because of your silence that we, the Bar Leaders, could make such a statement. It is interesting how your silence is used. In the first instance your silence was a "No" vote but in the second it was a "Yes" vote. The lack of involvement goes deeper and it frustrates me for I believe it is by our silence that we have allowed the profession to become the brunt of so many jokes. Lawyers have power, demand respect, and, in most cases, can influence public opinion. When we choose to maintain our silence we concede our right to influence the manner by which society is ruled. Due to the efforts of a few dedica ted citizens, Arkansas voters may have an opportunity to vote to limit to eight years the time a person may serve in a judicial office. It is my belief if this constitutional amendment gets on the ballot the people of Arkansas will limit judicial terms. As lawyers, we can and should work diligently to inform the public of the pitfalls associated with Judicial Term Limits. On such an important issue we lawyers must step forward and exert our combined influence. OUf entire Judicial System is at stake. On this issue we cannot afford the luxury of our silence. We, as individuals and as a profession, must reclaim our role in society. We have to again become the leaders, the lawmakers, the protectors, but in doing so we must return to our basic principles. Our obligation, our duty, our job is to see just laws are enacted as opposed to laws that are fair only for our clients or special interests. I urge you to wake from your slumber, challenge the system, question the justness of laws we pass, become involved. I ask you to Aggressively Respond to a Misinformed Society. My request is that you embrace my Call to ARMS as proposed so many months ago. You can do so in two ways. Tell your clients, friends, associates, and Sunday school classmates the effect Judicial Term Limits will have on the justice system and, if you have any desire, throw your hat into the ring, challenge an incumbent, run for a legislative seat. I am proud to be a lawyer, and I am proud to be an Arkansas lawyer. You should be too! Thanks for a wonderful year! 16 ARKANSAS LAWYER

SPRING 1994

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YOUNG

LAWYERS'

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COLUMN

What Should We Do About Incivility? By Brian H. Ratcliff

It finally happened. I picked up the phone and a secretary in another law firm told me her attorney was preparing his brief. He did not have a copy of my brief and wanted one. I knew that I had not prepared a brief in the case. I replied, "What brief and when was it due?" She had a letter setting out the briefing schedule which she kindly read to me. I told her I would get back to her. I looked at my calendar, no brief date was there. I looked in my file; I had no letter setting the briefing schedule. I asked my secretary; she did not have the letter and rudn't remember receiving one. I called another attorney who was involved in the case. He had the briefing sched ule. I confessed that I did not have the letter and did not remember receiving it. He replied that this was really strange as he received two originals of the briefing schedule. Eventually, all orally agreed that I must not have received the schedule and we would just request another briefing schedule. My word that I did not receive the schedule was good. This could have been a blood bath of motions, affidavits, and hearings to determine if I had, indeed, received the schedule. I was dealt with in a very civil manner and have not forgotten it. Unfortunately, my example may not be common. Of those responding to the Fax Poll in this

issue, 89% believed that incivility among lawyers was on the increase. 83% of those responding related that incivility is a major problem and the Arkansas Bar Association should address the problem. I do not believe there is a simple solution to the problem. On May 9, 1986, the Pulaski County Bar Association adopted a code of Professional Courtesy. It contains 23 statements which I recommend all attorneys read. It has been reprinted in this issue and is on the following page. If all attorneys followed this code, there would be no problems. One of the first things I want to find out when I am handling a case is who is on the other side. Why is this so important? If the attorney on the other side is professional, courteous, and honest, the case seems to progress better. Are there some attorneys who just can't be civil to you no matter what? Although you try your best, you Simply are unable to get along. Who are these people? There has been much talk in the Bar Association that a good deal of the problem is with young lawyers. 100% of those responding to the Fax Poll responded that ethics and law classes should deal with the issue. While this can help, I do not believe it is the solution. You can lead a horse to water, but you can't make it drink. If an attorney takes some action in a case that you consider uncivil, I suggest that you write him or her or, better yet, talk

about it. Kindly letting them know this is how we do things here, or Judge Smith likes it done like this, can be a great icebreaker. How can you remain civil and still serve your client's best interest in light of these uncivil jerks? I suggest we all remember the Preamble. A Lawyer's Responsibilities contained in the Model Rules of Professional Conduct states, in pertinent part: "A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others." Here are some questions that I try to adhere to when considering certain actions:

1. Is this something that would upset me if someone did it to me? (Do unto others as you would have them do unto you.) 2. What is my goal, and why am I doing this? 3. Is this really serving my client's best interests? 4. Am I doing this because the attorney has done something to offend me in the past and now I can get even? 5. Remember the old saying "what goes around comes around" usually does, sometimes tremendously. In conclusion, I would encourage you to think before you leap. If we all considered the above points before we acted, we would be able to practice law in a much nicer, harmonious environment. 17

ARKANSAS LAWYER

SPRING 1994

CODE OF PROFESSIONAL COURTESY Adopted May 9, 1986 As a member of the Pulaski COWlty Bar Association, I hold these truths to be evidence of my conduct as a lawyer and my respect for the law: 1.

2. 3. 4. 5. 6. 7. 8.

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.

I adhere to the rule of the law to govern my entire conduct and I acknowledge that the law is above me. I will not attempt to violate it or place myself above the law. Representing my client in a professional manner is my first obligation. I will familiarize myself with the Rules of Professional Conduct and try my best to observe it in my daily practice. I wiU conduct myself as a lady or gentleman and live my personal and professional life by the Golden Rule to do unto others as I would want them to do to me. I will be honest with myself. Practicing law is an ongoing, intellectual pursuit in which I intend to advance at every opportunity. My word is my bond. When each adversary proceeding ends, r will shake hands with my fellow lawyer who is my adversary; and if [lose, [will refrain from wmecessary condemnation of the Court, my adversary, or his client. I recognize that procedural rules are necessary as a last resort to order and decorum, therefore, if my adversary is entitled to something, it should be provided without motions, briefs, hearings and other formalities. If something is a fact, it should be stipulated in writing without requests for admission, interrogatories, witnesses and documents. Vigorous advocacy is not inconsistent witll professional courtesy. I will stay above the belt. Even though antagonism may be expected by clients, it is not part of my duty to my client. A lawyer is not called (or licensed) to be obnoxious. Ordinarily I will not notice a deposition Wltil an effort has been made to set it by agreement. I recognize that adversaries should communicate to avoid litigation and remember their obligation to be courteous to each other. I will strive to take and return lawyer's telephone calls as soon as possible. I recognize that advocacy does not include harassment. [recognize that advocacy does not include needless delay. [will be ever mindful that any motion, trial, court appearance, deposition, pleading or legal teclmicality costs someone time and money. I believe that only attorneys, and not secretaries, paralegals, or other non-lawyers, should communicate with a Judge or appear before the Judge on substantive matters. r will stand to address the Court. I have the responsibility to advise my client appearing in the courtroom of the kind of behavior expected of hinl (i.e. , no chewing gum, no sWlglasses, proper attire, etc.). When in the courthouse, [will dress appropriately to show my respect for the Court and the law. I will always be punctual, or sufficiently in advance of the appointed time, so that prelinlinary matters may be d.isposed of in order to start the meeting, trial, hearing or conference on time. I recognize that a lawyer should not become too closely associated with his client's activities, or emotionally involved with his client. I am thankful for the ability and my opportunity to be a lawyer. I appreciate the respect, trust and friendship which other lawyers have given me, and I will act at all times to preserve tlle mutual feeling of camaraderie among lawyers which exists in this Bar, because without it my clients and I suffer.

18 ARKANSAS LAWYER

SPRING 1994

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DISCIPLINARY

ACTIONS

ADVISORY

EMMANUEL L. PRUITI

ZACHARY P. MU CY

Emmanuel L. Pruitt, Little Rock, was suspended from the practice of law for a period of one (1) year for violation of Model Rules 1.1, 1.4(b), 1.15(b), 8.4(c) and 8.4(d) as a result of a complaint by Freddie Baker. In his affidavit of complaint, M.r. Baker stated that he was injured in an automobile accident on August 22,1988, and that he hired Mr. Pruitt to represent him on a contingency basis. Mr. Pruitt was to receive 33 1/3% of all sums recovered after deduction of medical expenses. In that regard, Mr. Pruitt signed a doctor's lien to protect the interest of Mr. Baker's doctor upon settlement. A settlement was reached and a draft in the amount of $4,500 was made payable to both Mr. Pruitt and Mr. Baker. Mr. Baker then stated that he was paid 51,500 as his share of the settlement proceeds and that Mr. Pruitt assured him that his medical bms had been paid in full from the settlement proceeds. Mr. Baker stated that he later learned that the medical bill had not been paid and, in any event, the amount he received did not represent the actual net proceeds due him. Mr. Baker was then sued by the medical provider. Mr. Baker contacted Mr. Pruitt concerning the collection action and was assured there was nothing to worry about. Me. Baker indicated that Mr. Pruitt advised him that he did not need to answer the complaint and the bill would be paid and the lawsuit dismissed. As a result, on February 26, 1990, a default judgment in the amount of $1,189 was entered against Mr. Baker. Me. Baker stated that once again he contacted Mr. Pruitt and was told not to worry, th"l he would satisfy the judgment. On August 15, 1990, a writ of garn.ishment was issued against Mr. Baker's employer, and a part of his wages were garnished in partial payment. Mr. Baker stated that, at this point, he hired an attorney to file a lawsuil against Mr. Pruitt; however, Me. Pruitt did not answer the complaint against him, and a default judgment was granted on Me. Baker's behalf. The complaint was sent by certified, restricted delivery mail on September 28, 1993, to Mr. Pruitt's address as it appears on the registry of attorneys kept by the Clerk of the Arkansas Supreme Court. The complaint was returned by the postal authorities with the notation, "Forwarding Order Expired." Pursuant to the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, Section 5B(I), the formal complaint was submitted to the Committee for adjudication.

Zachary P. Muncy, Searcy, was suspended from the practice of law for a period of one (1) year for violations of Model Rules 1.3, 1.4(a), 4.1(a), 8.4(c) and 8.4(d) by order of Circuit Judge John Lineberger on assignment to the White County Circuit Court. In 1989, Mr. Muncy was employed by American Dehydrated Foods, Inc. (ADF) in two civil cases. While acting as such attorney, he asked ADF to forward to him its check in the amount of 510,000 for the purpose of posting a property damage bond in trial court in one of the cases. Eventually, no such bond was required. Following trial of the case, a judgment was entered in favor of the other party and ADF filed an appeal with Arkansas Court of Appeals. Although no appeal bond was required, the attorney caused the client to believe so. The appeal was ultimately dismissed in 1991. Even after dismissal the funds were not promptly returned to ADF. ADF made inquiry of Mr. Muncy concerning the status of the funds, through its Missouri attorney, John R. Lightner. Me. Muncy informed Mr. Lightner by telephone, and by correspondence, that the funds had been required by the Appellate Court, and that the funds could not be released without an order of that Court. The money was never on deposit with the Appellate Court for a bond or for any other purpose. To support his false allegation, Mr. Muncy furnished ADF with a written document purportedly filed with the Court of Appeals styled "Motion for Return of Bond" in which a return of the alleged bond was sought. Additionally, Mr. Muncy mailed to ADF a copy of a letter purportedly written and signed by Leslie W. Steen, Clerk of the Arkansas Supreme Court, in which Steen allegedly advised Muncy that his motion had been filed, would be submitted to the Court, and acted upon promptly. Mr. Steen did not author, sign or send the purported letter to Mr. Muncy. Shortly thereafter, Mr. Muncy wrote to ADF contending that the bond had not been returned by the Court, however, he enclosed a check in the amount of 510,000. Based on the foregoing allegations and Mr. Muncy's timely response, the Committee on Professional Conduct determined that Mr. Muncy's conduct violated the Model Rules of Professional Conduct and decided to institute disbarment proceedings against Mr. Muncy. In the disbarment action, Mr. Muncy

20 ARKANSAS LAWYER

SPRING 1994

OPINIONS

stipulated that he had violated Rules 1.3, 1.4(a), 4.1(a), 8.4(c) and 8.4(d) of the Model Rules. At trial, Mr. Muncy testified and offered an impressive array of character witnesses, including his wife, his father, a client, a chancery judge, a circuit/chancery judge, and fellow attorneys. The Court also noted that the courtroom was filled to capacity with individuals who appeared to be genuinely concerned about Mr. Muncy. Mr. Muncy readily confessed the error of his ways and appeared to the Court to be sincere in his desire to correct his mistakes and be a productive citizen. Mr. Muncy had no record of prior disciplinary complaints. The Court in the disbarment action found that the action taken by Mr. Muncy since his despicable conduct came to light, together with the strong support of his family and community, entitled him to a second chance. It was therefore the conclusion of the Court that Mr. Muncy's license be suspended for a period of one (1) year, rather than disbarment be imposed. Ln addition to the standard requirements imposed on a suspended attorney by the Committee's Procedures, the Court imposed the following: (1) Make a written apology to ADF and its attorney, Mr. John Lightner; (2) Audit a law school course on Ethics or Professional Conduct; (3) Take and pass the ational Ethics Exam; (4) Perform a minimum of 100 hours pro bono work within a period of 12 months after reinstatement.

THOMAS WILLIAM CARROLL Thomas William Carroll, Little Rock, was suspended from the practice of law for a period of one (1) year for violation of Model Rules 1.1, 1.3, 8.4(c) and 8.4(d) as a result of a complaint filed by Mr. H.C. Klein. According to the affidavit of H.C. Klein, Mr. Carroll was retained by the Little Rock Air Force Base Federal Credit Union, of which Mr. Klein is President and Chief Executive Officer, to handle, among other things, some foreclosures. On August 1, 1989, Mr. Carroll was requested to file a foreclosure action. He advised that the action was filed and periodically provided status reports. Subsequently, it was learned the complaint was not filed until October of 1990 and that a Lis Pendens was improperly filed in Chancery Court. A foreclosure was requested in another matter on October 9, 1989. Mr. Carroll provided information leading the Credit Union to believe the action was filed, however, following many excuses he

DISCIPLINARY admitted that he was not truthful and that no lawsuit was ever filed. Finally, Mr. Carroll admitted that he intentionally misled the Credit Union into believing he had done things that had not been done. This inaction lead to additional costs and attorneys fees for the successful completion of these foreclosures. The complaint was sent by certified, restricted delivery mail on October 12, 1993, to Mr. Carroll's address as it appears on the registry of attorneys kept by the Clerk of the Arkansas Supreme Court. The complaint was returned by the postal authorities with the notation, "Unclaimed" on November 5, 1993. Pursuant to the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, Section 58(1), the formal complaint was submitted to the Committee for adjudication.

STEPHA Y RUSH SLAGLE Stephany Rush Slagle, Hot Springs, received a letter of reprimand (or violations of Rules 1.7(a) and 1.7(b) of the Model Rules as a result of a complaint by John E. Pruniski, III. Ms. Slagle received the reprimand following a public hearing held on January 15, 1994. Pursuant to his obligation under Rule 8.3, John E. Pruniski, ill, submitted an affidavit of complaint against Ms. Slagle. Mr. Pruniski was employed to represent Taney J. Jones, Receiver for NEFCO Financial

Services, Inc. (hereinafter referred to as NEFCO) in her attempt to recover assets of NEFCO, a corporation which was used by Gene N. Flannes in his business endeavors which allegedly included defrauding numerous individuals. In his affidavit of complaint, Mr. Pruniski stated that Gene Flannes disappeared on or about April 8, 1988. A

few days prior to his disappearance, Mr. Flannes had Ms. Slagle prepare pov.-ers of attorney for both himself individually and for EFCO, appointing Ms. Slagle as attorney-in- fact. Mr. Pruniski's affidavit also indicated that Ms. Slagle previously represented Mr. Flannes and/or NEFCO on another matter. Sometime in late April, 1988, Ms. Slagle was hired by Ms. Margaret Miller Flannes (hereinafter referred to as Margaret Miller), wife of Gene Flannes, to represent her in a divorce. Ms. Miller was awarded the interest of Gene Flannes in NEFCO. Gene Flannes owned 100% of the stock in NEFCO. During the pendency of the divorce action, Arkansas Bank and Trust Company began a foreclosure proceeding against NEFCO on some property owned by the company. Ms. Slagle did not file a pleading on behalf of

ACTIONS

ADVISORY

NEFCO in the foreclosure action, but in June, 1988, intervened in the action on behalf of eight investors in the property whose interests were adverse to the interests of NEFCO. Following entry of the divorce decree, Margaret Miller, as the newly elected President of NEFCO, executed two deeds on the property. One deed was for an undivided 1/3 interest in the property to Ms. Slagle pursuant to her fee agreement with the investors and the other wa for an undjvided 2/3 interest in the property to Ms. Slagle's investor c1jents. Mr. Pruniski's affidavit goes on to state that at the time of Gene Flannes' departure, NEFCO was also record owner of an apartment house. The funds of third party investors had been collected or received by Mr. Flannes purportedly to purchase or improve the apartment house. In a separate action in United States Federal District Court, the Securities and Exchange Com.m.ission on August 19,1988, obtained an order freezing all assets of NEFCO. In spite of the freeze order, on August 23, 1988, Ms. Slagle filed suit in state court representing third party investors to obtain title to the apartment house from NEFCO. Fourteen days after the complaint was filed, a decree granting an undivided 1/3 interest in the apartment house to Ms. Slagle as her fee and an undivided 2/3 interest to Ms. Slagle's investor clients was entered. Both deeds subsequently were set aside in an action brought by the receiver. Upon final distribution, assets were substantially inadequate to discharge the corporate liabilities. Ms. Slagle's affidavit of response and her testimony at the hearing indicated that the work she did for Gene Flannes from 1982 to April 6, 1988, was very incidental and never included anything regarding EFCO. Ms. Slagle's response indicated that she prepared wills for Mr. & Mrs. Flannes in 1986. The other work done for Gene Flannes was done because his regular corporate counsel was out of town. Ms. Slagle stated that as soon as the news of Mr. Flannes' disappearance surfaced, she immediately resigned as attorney-in路 fact for both NEF 0 and Gene Flannes without having taken any action under either power. On April 22, 1988, Ms. Slagle filed for divorce on behalf of Margaret Miller and on july 7, 1988, the court granted Ms. Miller an absolute divorce and all of Gene Flannes' interest in EFCO, along with other assets. Ms. Slagle indicated that prior to obtaining NEFCO for Ms. Miller she had been contacted by several investor clients concerning a possible lawsuit against NEFCO for recovery of investment. Ms. Slagle then contacted Mr. john Haley, an attorney more experienced than herself in

OPINIONS

corporate matters, concerning the possibility of Ms. Miller obtaining any assets from NEFCO. At that time, Mr. Haley advised that there was some possibility of Ms. Miller receiving monetary benefit from EFCO. In that regard, Ms. Slagle stated that after Ms. Miller was awarded EFCO in the divorce, she immediately contacted Me. Haley who began representation of FCO and Ms. Miller in her capacity as President of NEFCO. Ms. Slagle testified that prior to accepting the investors as c1jents, she discussed with Ms. Miller, the investor's desire to retain her to recoup their investment. Those discussions included explanation to Ms. Miller of the relief sought for each person, what the result would be, its effect on Ms. Miller, and that Ms. Slagle would receive 1/3 interests in the properties pursuant to the contingency fee contract. Ms. Slagle provided a handwritten unsigned letter of consent from Ms. Miller, however, Ms. Miller testified that she had no recollection of giving any consent. Finally, Ms. Slagle testified that while she did not see the conflict at that time, with hindsight she can now see that one existed.

ESTHER M, WHITE Ms. Esther M. White, Fayetteville, was issued a letter of reprimand for violation of Model Rules 1.15(b) and 8.4(c) as a result of a complaint filed by Ms. June T. Martin. The complaint alleged that June T. Martin is the business manager for Radiology Services, P. A., a medical provider. Ln 1989, a medical service was provided to a Mr. jenkins. Radiology Services then filed a medical lien in the amount of $639. Later, at Radiology Services, Ms. White presented a $5,000 draft payable to Radiology Services and three other payees. Ms. Martin stated that Ms. White assured her that if she endorsed the check Ms. White would deposit it in a trust account and then issue a check to each payee in prorated amounts. Ms. Martin stated that, as of September, 1993, Radiology Services has not received payment, their phone calls are unreturned and certified letters to Ms. White are returned "Unclaimed." Ms. White responded by stating that she did recall going to Ms. Martin's office for an endorsement of a $5,000 check received from an insurer pursuant to "no-fault" medical coverage and while not having specific recollection of the conversation, Ms. White was sure that she told Ms. Martin that the bill would be taken care of when the case was tried and won. Ms. White stated that she has never sent back or failed to pick up any mail from Radiology 21

ARKANSAS lAWYER

SPRING 1994

OISCIPLINARY Services or their attorney. Ms. White stated that a settlement was offered her client, which was rejected and the trial was lost. She averred that the $5,000 was spent on costs of litigation and concluded by stating that calls and letters from Ms. Martin and her attorney, Randall McGinnis were referred to her co-counsel, attorney Jeff Slaton, and Ms. White thought that Mr. McGinnis was satisfied by Mr. Slaton's

response.

LOYD THOMAS HARPER Upon

recommendation

the

Committee on Professional Conduct, on ovember 1, 1993, the Arkansas Supreme Court accepted the surrender of the attorney's license of Loyd Thomas Harper, Ash Flat, Arkansas. Mr. Harper has criminal charges pending against him involving his handling of funds of a decedent's estate. He admitted that his conduct violated Model Rules 8.4(c) and 8.4(d). On March 22, 1993, Mr. Harper was notified that the Committee on Professional Conduct voted to suspend him from the practice of law for a period of six (6) months and one (1) year as a result of two separate complaints against him. One of those complaints was from a judicial officer in a bankruptcy proceeding in which Mr. Harper represented the debtor. In March, 1992, Mr. Harper was paid $80.00 to represent a debtor in a bankruptcy proceeding. When the bankruptcy petition was filed on March 30, 1992, Mr. Harper requested that the filing fee of $120 be paid in installments. The debtors had previously paid the filing fee to Mr Harper. Only $30.00 of the fee was paid to the Court, and a show cause hearing was set for june 25, 1992. On july 2, 1992, Mr. Harper filed an objection alleging that the debtor needed additional time to pay; however, the debtor had previously written the court that Mr. Harper had been paid the filing fee in full. The court was provided a copy of the cancelled check. In his response to the Complaint By a Judicial Officer, Mr. Harper admitted representation of the debtor, but did not recall receiving the check in payment of the filing fee. Upon receiving the notice of possible dismissal and unable to contact the debtor, Mr. Harper stated that he asked for additional time to pay. Mr. Harper stated that he relied on his perceptions of the debtor's financial condition. Mr. Harper averred that he had improperly receipted the payment of the filing fee in his records. The other complaint was based upon

22 ARKANSAS LAWYER

SPRING 1994

ACTIONS

AOVISORY

the affidavit of Mr. Don Rebsamen, Adm.inistrative Law Judge for the Social Security Administration Office of Hearings and Appeals. In his affidavit of complaint, Mr. Rebsamen stated that Mr. Harper was suspended for a period of three (3) years from representing claimants before the Social Security Admini tration. Judge Rebsamen stated that he was notified that Mr. Harper continued to represent claimants, maintaining that he had no notice of his suspension. Mr. Harper had previously been representing claimant Truman D. Hutchinson and had successfully obtained past benefits in his behalf; however, because of Mr. Harper's suspension, Social Security Administration did not authorize a fee in the case. At that time, twenty-five percent (25%) of the claimant's recovery was being held in escrow, pending the administrative law judge's determination of the amount of attorney's fees to be awarded. The claimant, upon receipt of his recovery, paid Mr. Harper a total of $2,084.82, an amount equal to the original twenty-five percent (25%) being held in escrow. Because he was not awarded any fee, Mr. Harper was directed to return the money to the claimant. On September 8, 1992, the Social Security Administration Office received a letter from Mr. Harper, with a copy of a letter addressed to the claimant, on which was copied a check made payable to the claimant in the amount of $2,084.82. judge Rebsamen stated that his hearing clerk, at his request, contacted the claimant to verify that the claimant's money was refunded. The claimant indicated that Mr. Harper had not returned any of his money. Upon contacting Mr. Harper, the claimant was told that there were not sufficient funds to cover the amount of the check, but that he would receive the check by September 18, 1992. judge Rebsamen stated that on September 21, 1992, the claimant called the Social Security Administration Office to indicate that Mr. Harper had not refunded the attorney's fees. In his affidavit of response, Mr. Harper stated that he originally agreed to take Mr. Hutchinson's case for twenty-five percent (25%) of his back pay. After approximately ten (10) months, Mr. Harper stated that he was successful in obtaining benefits for Mr. Hutchinson. Although Mr. Harper acknowledged that he had notice and was aware of the Administration's sanction proceedings against him, he averred that he only learned of the suspension almost one year later. Mr. Harper stated that he was sent a notice indicating that money was being

OPINIONS

withheld for attorney's fees. Mr. Harper noted that he had indicated on his representative's form that he did not want any money withheld. Upon receiving notice from the administrative law judge to pay Mr. Hutchinson, Mr. Harper responded that he made out a check for the amount and sent a copy along with a cover letter to the administrative law judge. Mr. Harper averred that because Mr. Hutchinson was coming to his office about that same date, he waited and handed him the check. Mr. Harper stated that Mr. Hutchinson gave the check back saying that it had been earned and Mr. Harper, not knowing what to do, kept the check. Mr. Harper requested a hearing from both the Committee's actions. However, in view of the pending criminal charge, the Committee, at Mr. Harper's request and upon his assurance of his intention to voluntarily surrender his law license, accepted withdrawal of the requests for hearings.

GUY H. JONES, JR. Following a six month suspension from the practice of law imposed on June 18, 1993, the Commi ttee on Professiona I Conduct has reinstated the license of Guy H. jones, jr. effective january 6, 1994.

REGINALD S. MCCULLOUGH Reginald S. McCullough, Little Rock, was suspended on October 29,1993, for a period of three (3) months for violations u( Rules 1.4(a), 2.3 and 8.4(d) of the Model Rules as a result of a complaint filed by jacqualine Dedman. See McCullough v. Neal, 314 Ark. 372 (1993). Following the three month suspension from the practice of law imposed on October 29, 1993, the Committee on Professional Conduct has reinstated the license of Reginald S. McCullough effective February 16, 1994.

F. LEWIS STEE KEN F. Lewis Steenken, Fayetteville, was issued a letter of reprimand for violation of Model Rules 1.2(d), 3.3(a)(2), 8.4(c) and 8.4(d) as a result of a complaint by judge Robert j. Gladwin. judge Gladwin stated that on june 6, 1993, a man was arrested and charged with Driving While Intoxicated and Fleeing from an officer. The man had no identification, but identified himself as Larry Eugene

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DISCIPLINARY Eilerts. On june 29, 1993, Mr. Steenken entered his appearance as Larry Eugene Eilerts' attorney and, on july 2, 1993, a plea was entered on the normal trial date for the defendant. The defendant executed a promise to pay fines and costs. On july 27, 1993, the court contacted Mr. Steenken

ACTIONS

ADVISORY

document. Mr. Steenken pointed out that at no time did he appear before judge Gladwin in the presence of Michael, nor did he advise Michael to hold himself out as Larry.

KAREN K. JOHNSON

concerning his client's surrender of his

driver's license. Mr. Steenken then wrote a letter using no first name, to Mr. Eilerts asking that he surrender his driver's license. Some days subsequent to july 28, 1993, judge Gladwin stated that a person identifying himself as Larry Eugene Eilerts presented himself at the court to inquire about the criminal charges and conviction against him. The person advised that he had not been arrested and that he had no knowledge of the prior court proceedings. Judge Gladwin indicated that two hearings were then conducted establishing that the person was, in fact, Larry Eugene Eilerts and that he was neither the individual arrested nor had he appeared in court with Mr. Steenken. It was discovered that Larry Eilerts had a brother named Michael Dale Eilerts. It became apparent that Michael Eilerts, at the time of his arrest, used the name of his brother Larry. The court then issued a warrant against Michael Eilerts, charging him with Criminal Impersonation and reinstituting the original charges against him. Michael Eilerts subsequently was arrested, appeared in court, and entered a guilty plea to the offense of Criminal Impersonation. judge Gladwin stated that Michael Eilerts testimony revealed that his lawyer, Mr. Steen ken, had known since the time of undertaking representation that Michael Eilerts had falsely identified himself. Ln his affidavil uf r~sponse, Mr. Steen ken stated he was contacted by Michael Eilerts concerning the citations charging Larry Eilerts with D.W.I., Fleeing, Driving Left of Center and Careles Driving. Michael indicated that while driving his brother Larry's car, he was stopped and that the officer discovered that the car was registered to Larry and then refused to believe that the defendant was Michael. Mr. Steenken stated that he then advised that if the officer could not identify Larry in court, then the charging documents would have to be amended thereby possibly affecting the officer's cred.ibility. When Mr. Steenken was advised that Larry was not interested in appearing in court, he advised Michael that his best approach was to negotiate a plea. Mr. Steen ken next saw Michael in court, on his court date, where he negotiated a plea for Michael. Mr. Steenken turned the plea agreement in to the prosecutor, and Michael apparently signed a promissory note in the name of Larry. Mr. Steenken stated that he did not view this 24 ARKANSAS LAWYER

SPRING 1994

Karen K. johnson, Little Rock, was i sued a letter of caution for violation of Rule 7.2(d) of the Model Rules as a result of a Complaint by the Committee. The Complaint Before The Committee indicated that the Arkmlsas Democrat Gazette on numerous occasions contained an advertisement for the Legal Center. That advertisement did not include the name of at least one lawyer responsible for its content. In her affidavit of response, Ms. johnson stated that she is currently practicing using the name of the johnson Law Firm, d/b/a "The Legal Center." Ms. johnson indicated that she felt that by placing the ad using the firm name, she was following a normal trade practice which was in compliance with previous Supreme Court decisions on lawyer advertising. Ms. johnson had the advertisement stopped even before she was served with the Complaint by the Committee. Ms. johnson noted that all other sources that contain the name "The Legal Center" include her name and that there was no attempt to mislead or deceive the public. Ms. johnson further noted that the decision not to use her name in the ad was based on the economic consideration of limiting the number of printed lines in the advertisement.

HENRY N. MEANS III Henry N. Means III, Little Rock, was issued a letter of caution for violation of Rule 7.2(d) of the Model Rules as a result of a Complaint by the Committee. The Complaint Before The Committee renected that the Arkansas Democrat Gazette, on numerous occasions, contained an advertisement in the Classified Advertising section in which Mr. Means advertised his bankruptcy services without the name of at least one lawyer responsible for its content. In his affidavit of response, Mr. Means stated that he omitted his name from the advertisement simply out of his revulsion to seeing his name in newspapers, and his lack of understanding that such is required. Mr. Means indicated that the primary purpose of the advertisement was the dissemination of information about bankruptcy. After receiving the complaint, the advertisement was changed to include Mr. Means' name. Mr. Means concluded in his response that there was no intent to deceive, m.islead or violate the Rules.

OPINIONS V. LOGAN SIMO S

v. Logan Simons, Little Rock, was issued a letter of caution for violation of Rule 7.1(b) as a result of a Complaint by the Committee. The Complaint indicated that Ms. Simons sent a solicitation letter stating that her firm is young and aggressive and can recover the greatest amount of money in the shortest possible time. In her affidavit of response, Ms. Simons responded that she was now of the opinion that her statement could be construed to create an unjustified expectation about results. Ms. Simons therefore indicated that she voluntarily removed the questionable statement from all of her advertising. Ms. Simons stated that at the time the advertising was formulated, it was not her intent to mislead anyone or to violate the Model Rules.

Advisory Opinions Judicial Discipline & Disability Commission Advisory Opinion 93路07 Oanuary 3, 1994) Clarifying its advisory opinion 93-06 the Arkansas judicial Ethics Advisory Committee stated that the requirement in Canon SC(2) of the Arkan as Code of judicial Conduct, effective July 5, 1993, that a judge must return any surplus campaign funds to the contributor or turn them over to the state treasurer applies to any and all surplus campaign funds, without exception or exclusion based on the time of its accumulation, variance with legislative acts or other rule of law, or other factors. Advisory opinion 93-07 had advised that a judge's campaign committee may not maintain a surplus to be used as a filing fee in the next election. The Committee noted that the question whether a legislative enactment can override a Canon or vice versa was a question of law upon which it could not comment. Advisory Opinion 94路05 (February 16, 1994) The Arkansas judicial Ethics Advisory Committee issued an opinion stating that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned ..."Judicial ethics advisory opinions on this subject vary, however we find the weight of the opinions and the preferable view to be that when an attorney is opposing a presiding judge for reelection, the judge should disqualify himself or herself in all cases in which the attorney appears before that judge. This is better for the judge, the opponent and the judicial system."

Shakespeare's Juliet had it right: a rose by any other name would smell as sweet. In loday's marketplace, though, a Coke by any other name would probably not sell as well. A trademark 1 can make a real difference in the commercial success of a product, and it can also have significant legal implications, so selecting a brand name is one of the most important decisions a business client can make. Since most clients probably do not consult their lawyers about the marketing

today provides the basis for the widely known Joe Camel promotion. Suggestive Words: The Weakest of the Strong Trademarks The next strongest trademarks are suggestive words; they suggest some of the qualities or purposes of the products for which they are used. "Ivory" for soap (suggesting long-lasting whiteness) and "Arrid" for antiperspirant (suggesting dryness) are well-known suggestive marks. Marks of this type do not actually describe the products with which they are associated; they require the consumer instead to infer the actual nature of the product from the mark. Although arguably not as strong upon initial use as a coined or arbitrary mark (since it may be open to characterization as merely descriptive), a suggestive trademark can still be a strong choice. Descriptive Words: The Weakest Trademarks The weakest trademarks merely describe some of the attributes or intended uses of the products for which they are used. "Honey Roast" for nuts roasted in honey is a descriptive mark, since it simply describes the process by which the nuts acquire their distinctive taste. Attractive though they may be from a marketing standpoint, descriptive marks are the bane of the trademark lawyer's existence, for they are extremely difficult to protect. Every seller (including even the client's major competitor) is free to use ordinary descriptive

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considerations inherent in the trademark selection process, this article does not address them. It is intended instead to provide the general practice attorney with the background necessary to advise a client about the legal consequences of selecting a particular mark. Choosing a Strong Mark The purpose of a trademark is to di tinguish its owner's goods from those of others, so the strongest marks will be sufficiently distinctive to enable consumers to differentiate the client's goods from other similar products. Thus, unless marketing considerations strongly suggest otherwise, it is advisable to select a strong and distinctive trademark and then to take the steps necessary to protect it against imitation in the marketplace. Coined Words: The Strongest Trademarks The strongest trademarks, and those easiest to protect, are coined words that have no independent meaning. Their only significance is as

designations for particular products. "Kodak" for photographic supplies, and "Exxon" for petroleum products, are examples of coined words which, through long use and promotion, have become extremely valuable trademarks. From their first use, however, they were strong marks capable of distinguishing their owner's products from those marketed by their competitors. Arbitrary Associations: Strong Trademarks Arbitrary trademarks result from tying an ordinary word to a product with which it would otherwise have virtually no logical connection. One of the oldest trademarks of this kind- and perhaps the most famous- is "Camel" for cigarettes. If it had not been promoted for years as the name of a particular brand of cigarettes, virtually no one would associate the word "camel" with tobacco products. That long-standing association, however, has turned "Camel" into a valuable property that

By Nancy Bdlhoust ~ay

ARKANSAS LAWYER

SPRING 1994

terms on its labels and in its advertising. Thus, demanding that a competitor cease its descriptive use of words in which the client is attempting to develop trademark rights would probably be unsuccessful. Further, once a descriptive word is established as a trademark (which is itself no easy task, since it requires several years of substantially exclusive use), it is entitled to only a relatively narrow scope of protection. The owner of a descriptive mark is likely to be able- at best- only to prevent others from using virtually identical marks; those who choose merely similar marks may well be entitled to continue using them. A Word About Generic Words Generic words, the common names of goods and services, are not capable of becoming trademarks, no matter how long used or extensively publicized; they cannot identify the source of a particular product or distinguish it from other products of the same lype, and they must remain available for everyone's use. Thus, a manufacturer of bicycles could not adopt "Bicycle" as the mark for its product, nor could an agricultural products company use" Apple" as the mark for its apples, since they are the generic names of those products.2 Clearing and Protecting a Mark Searching and Clearance Since trademarks are intended to help consumers distinguish among competing products, the client should make every effort to select a mark that is not confusingly similar to a mark already in use. Although the client will often believe that its chosen mark is so unusual as no investigation before adoption and use, experience teaches that such confidpncp is nearly as often misplaced. Particularly since the controlling legal standard is confusing similarity, not absolute identity, subtle differences that seem to the client's marketing department to distinguish its chosen mark from others may be insufficient to insulate the client from liability for infringement. It is wise, therefore, to search and clear every potential mark, no matter how unlikely a conflict might seem. Perhaps the most typical means of clearing a mark is to begin with the preliminary screen, which is an on-line review of the records of the Patent and Trademark Office (PTO) and the 51 secretaries of state, and one or more tradename directories. If this screen turns up a pre-existing use and/or registration of a similar mark for related goods or services, the client can immediately choose an alternate mark. 26 ARKANSAS LAWYER

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For this reason, it usually makes sense to advise the client initially to select and rank a series of marks, around any of which it would be happy to build the product's identity. If the first few marks are unavailable, the screening process can proceed immediately with the next entries on the list, saving the client the time (and frustration) necessarily inherent in starting over several times. If the initial screen suggests no direct bar, the next step is ordinarily to request a full search from a trademark search service. The search service will review the PTO and state records more broadly (looking, for example, for marks that rhyme with the one being searched), and also review trade information sources relevant to the market segment in which the product will appear. Its report will give as comprehensive a view as possible of the potentially conflicting marks already in lise. If this report indicates that a conflict is unlikely, the client can proceed with its plans to adopt and use the mark. Registration and Policing Although it is not required under either state or federal law, registration is one of the best means of protecting the client's investment in a mark. A mark

used within Arkansas may be registered with the Trademark Division of the Secretary of State upon submission of satisfactory evidence that it is actually used here, and so long as it is not confUSingly similar to another mark already registered in Arkansas. A mark used in interstate commerce (and in today's market there are few products or services that do not involvf' interstate commerce) may be federally registered at the PTO. Of course, if the client does not wish to pursue either state or federal registration, it can attempt to develop rights in its mark solely through use. Since such common law trademark rights are extremely limited in scope, however, this strategy may not make sense in most situations. State registration has the advantage of being both inexpensive and quickly accomplished. Its primary shortcoming, though, is significant: it provides protection only in a single state. An Arkansas registration, for example, would be of little help in combating an unauthorized lise of the mark in Oklahoma, Tennessee, Missouri, Texas, or Louisiana, at least parts of which are likely to be in the trading area of many Arkansas clients.

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Federal registration takes longer (on average, about a year) and typically costs more when search costs, application fees, and legal fees are considered together. The righ ts conferred by a ferlera I registration are national in scope, however, enabling the owner of the federally registered mark to pursue an infringer virtually anywhere. Federal registration also confers the right to use the registration symbol ® in connection with the mark. Using the symbol, though not mandatory, enhances the owner's rights under the federal trademark statute popularly known as the Lanham Act; it also serves as a warning to would-be infringers that the client claims ownership rights in the mark and is likely to defend it vigorously. In addition, federal law, unlike state trademark laws, permits the filing of a registration application before a mark is actually in use, which enables the client to reserve a mark before the product for which it will be used is actually in production. Even if the client does not opt for

registration, each of its marks ought to be the subject of a policing and enforcement program. Such an effort need not be expensive, as marks can be policed informally- and often very effectively- by the client's sales staff. Sales representatives are likely to encounter competitors' labels, packaging, point-ofsale materials and other promotional literature in the field, so they should be instructed to report any potential infringements. Once it appears that an infringement has actually occurred, it is usually prudent to send a cease and desist demand to the infringer, and to attempt to get the products bearing the infringing mark off the market as soon as possible. A failure to enforce trademark rights against one infringer may be taken by others as evidence of an intent to abandon any claim to exclusive rights in the mark. Routine policing can help the client avoid this obviously undesirable result. Conclusion The selection, clearance, and protection of trademarks should be an

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important consideration for every lawyer who routinely advises business clients, since a client whose brand names are carefully chosen and appropriately protected is more likely to emerge from any trademark dispute enjoying the sweet smell of success.

© 1994 Nancy Bellhouse May ENDNOTES 1. Technically, marks applied to goods are known as trademarks, while those associated with services are service marks. For convenience, this discussion will refer only to trademarks, since the applicable legal principles are the same. Similarly, although this article addresses only word marks, the reader should be aware that designs and symbols can also serve as marks. 2. Note, however, that the arbitrary mark "Bicycle" has long been used for playing cards, and the arbitrary mark"Apple" is one of the strongest in the computer field.

Nancy BeJlhouse May, a partller ill the Little Rock law firm of Wright, Lilldsey & jellllillgs, is a magna cum laude graduate of Bowdoill College and a graduate of the Columbia University School of Law, where she was a Harlan Fiske Stolle Scholar. She chairs the America" Bar Association Intellectual Property Law Section subcommittee studying insurance indemnificatiofl for illfringeme"t damages, alld was recently appointed to the Board of Governors of the lntematioflal Trademark Associati01I's Brand Names Education FOlmdatioll.

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ARKANSAS LAWYER

SPRING 1994

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FOREWORD For this edition, The Arkansas Lawyer has chosen elections in Arkansas as its subject for analysis. It is a topic that is sure to capture your interest and on occasion stir your emotions. It most assuredly has provoked mine. Upon graduating from law school, my interests were largely limited to family, baseball and fulfilling my military service obligation. Quite candidly, I had little or no thought about politics or the election process until, as a young lawyer, I took a job with a non-profit election organization headed by a Little Rock attorney, John H. Haley. That organization was responsible for exposing election abuses stemming from our corrupt poll tax registration system. As were other young attorneys connected with that organization, I was initially naive, inexperienced and uneducated in Arkansas elections, but even I knew that voting the dead or a fictitious individual and voting a person twice at an election had to be wrong. Even Haley's basset hound (Joe Bassett) became a registered voter in the 1964 primary elections. In the 1960's, election reforms took root in our fair state when the people of Arkansas mandated a permanent registration system and authorized the use of voting machines. A new election code was also enacted. Notwithstanding such reforms, we could not take our state elections for granted. In the '70's and 'SO's, our state experienced abuses in its election process, but with past experiences and reforms as a guide, Arkansas people took prompt action to make needed corrections when violations in our election laws surfaced. From my view, the election process is a sacred one - it is the glue, so to speak, that allows our democracy to work. After all, it provides the mechanism for the people to speak and to act through initiative and referendum elections. For example, no matter how you might feel about a controversial issue - like term limits - Arkansans have the power and opportunity to voice their confidence or frustration at election time. To what extent is running government by election a good idea? It is a question considered in the following articles. How can a candidate and his or her supporters (or his or her opponents) use the election process and laws in obtaining their objectives? This is yet another topic dealt with in this issue of The Arkansas Lawyer. Working in the area of Arkansas elections in past years has given me a handson insight into state and local government. More important, it has allowed me the opportunity to make life-long friendships with people, in almost every part of Arkansas, who, too, learned first hand how essential it is to keep our election process right and free of abuse. The authors and their excellent articles that follow hopefully will arouse or renew your interest in elections and the governmental process. They have mine!

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awv. eno: Will it turn out like Koresh v. Reno? By Matthew Horan Constitutional Law is a perpetual feast for those inclined to mirth. Take Slmw v Reno,509 U.s., 125 LEd 2d 511 (1993), please! Shaw v. Reno, supra, questioned the constitutionality of a gerrymandered congressional district that ran 160 miles north to south, and was sometimes no wider than Interstate 95. One wag observed that if someone drove down 1-95 with both doors opened, he would kill all the voters in the district. 1d., 125 LEd, at 521. The "1-95 Congressional District" was created to assure that North Carolina elected two black Members of Congress, making the percentage of blacks within the state's delegation (2 of 12, 16.25%) more nearly approximate the percentage of black citizens within the state (21%). The shape of the "1-95 District" was concededly "bizarre." The designers utterly ignored traditional districting criteria of compactness, contiguity, and "respect for the integrity of political subdivisions," Neighborhoods were cut from small towns simply to make the new district "majority minority." PLaintiffs complained that this frankly racial scheme violated the Constitution. Easy case, right? Not so. The Shaw court divided 5-4 to remand because the district "could be seen" as radal1y segregating voters in a manner not "narrowly tailored to achieve the desired result. Shaw's bare majority, coUected around a diffident and equivocal opinion, suggest that the case may afford scant precedent. Even if one wanted to cite the majority opinion for a legal proposition, one could not do so. Justice O'Connor's opinion is remarkable for its studied avoidance of legal propositions! It is, in every sense, a deeply funny opinion: in saying nothing whatever, it speaks volumes about the Court's squeamishness on Quotas. Do you remember DeFullis v. Odergaard, 416 U.s. 312 (1974)? In that case the Court was squarely presented with the issue whether a racial quota for law school admissions was unconstitutiona1. And the Court...ducked. The Court decided at the last minute that the case was "moot." There foIlowed Regents of the Ulliversity of Califamia v. Bakke, 438 U. S. 265 (1978). This was the famous "Goal Good, Quota Bad" decision which permitted racial considerations to playa part in the distribution of finite benefits by the state. The jack in Bakke's box is that federal bureaucrats, unrestrained by a clear rule, will predictably and unimaginatively audit the way benefits are distributed by a state, and if the distribution does not conform to a certain ratio, i.e., Quota, there will be hell to pay. 1 am exposing no state secrets here. Bakke's equivocation has resulted

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in Quotas being the practice of the land. We used to call that "de facto segregation."

Quotas are the Equal Protection Clause's live-in uncles. Southern life is spiced by these antic figures, spaced-out little brothers now all grownup and given the outrageous run of Big Sis's home right up to the point where they "go nekkid" in front of Company. In the Shaw v Reno family drama, the Court is the forebearant paterfamilias, yoked in loveless yet dutiful wedlock to Federal Agency, whose misunderstood sibling, Quota, dropped by for what she promised would be a brief visit, oh...about nine years ago. The latest family crisis cannot be ignored like De FUllis, or glossed over like Bakke. This time he's gone way too far: he's "streaked" the Interstate. Southerners have crazy, extended families, and intuitively understand the Court's discomfiture. We may, in fact, be the only folks who "get" the Rule in Shaw v RfIl01 : So-called benign Quotas will not be disturbed unless they are so flagrant that the Court perceives itself to be an accomplice unless it overrules them. This is not, strictly speaking, a Rule; this is five people cringing simultaneously. We are at a watershed when a bare majority of the Supreme Court offers hesitant objection to a frankly segregative scheme. The plaintiffs in Shaw v. Reno were white. The Court held that the injury of such a scheme was the psychic injury that segregation imposes on black citizens, the unique type of injury that BrowII v. Board of Edllcatioll, 347 U.S. 483 (1954) recognized as delegitimizing the "separate but equal" doctrine of Plessy v. FergusoII, 163 U.s. 537 (1896). Even die-hard opponents of Quotas

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can agree that it comes with small grace for white plaintiffs to argue that a redistricting is unconstitutional because it places a "brand of inferiority" on nonwhites. Plaintiff's disingenuous argument reeks of opportunism, and the Court's acceptance of it underscores a point made by Justice Blackmon's dissent: "It is particularly ironic that the case in which today's majority chooses to abandon settled law and to recognize for the first time this analytically distinct constitutional claim is a challenge by white voters to the plan under which orth Carolina has sent black representatives to Congress for the first time since Reconstruction." 125 LEd 2d, at 548. Mr. Justice White's separate dissent reasoned that voters artificially gerrymandered into a minority position could not demonstrate a "legally cognizable injury." Id., at 537. I do not ordinarily write one-sentence paragraphs, but I just did so because I think the reader's eye needs to give that sentence a full paragraph's pause. Our legal system really has entered a kind of Wonderland, hasn't it? In Mr. Justice White's defense, his position is "logical," and fully supported by precedent. Therein lies the problem. Twenty years ago, the Hasidic community of Brooklyn, what one may truly call this country's Most Discrete and Insular Minority, awoke one morning to find that it had been divided in such a way as to become a perpetual, voiceless minority in two senate and assembly districts in New York. Jews generally have faced horrific persecution, the Hasidim moreso. Hasidim are absolutely non-assimilationist. They dress in black, cut not their forelocks, and would likely demur to any suggestion that their views might "virtually" be represented by goyim. When today in Arkansas, we read of "tensions" between Jews and blacks in "Crown Heights," we are reading about the Hasidim who were gerrymandered out of the New York Assembly. In 1992, a jury acquitted the confessed "revenge" murderer of an unoffending Hasid after a tumultuous trial which saw Crown Heights being stirred to "show the Jews" by Anti-Semitic rabblerousers. Back in 1973, Hasidic leaders were

concerned that they had been politically neutered in the New York legislature and, worse, that their representatives would answer to a larger constituency that was increasingly hostile to them. The Hasidim complained that they had been gerrymandered out of power for the sole purpose of assuring non-whites a cprtain quota of seats in the state legislature. Readers who doubt that federal bureaucrats take advantage of judicial pusillanimity about Quotas will find this quotation from the record enlightening: a New York official reported that in discussions with the Justice Department, he "got the feeling...that 65 percent would probably be an approved figure" for the non-white composition of the districts to be created. United Jewish Orgalliza/iolls v Carey, 430 U.s. 144, 152 (1977). That same state official testified that the state's sole reason, Id., at 182, for dividing the Hasidk community was to create two districts with exactly 65 percent non white population. Why did the Hasidim lose-7-1 by the way-in a case where the state frankly conceded that race was the sole reason for its decision? Because the Court said that the Hasidim had demonstrated no injury! This incredible finding was the product of a "group-minded" jurisprudence that was very fashionable in the mid-Seventies. The rationale ran roughly like this: because whites as a group comprised 65% of the population of Kings County, New York, and because they constituted the majority of voters in 700/0 of the legislative districts in the County, "white people" were not injured by the plan, and therefore the Hasidim were not. 430 U.S. at 166. Detect the non sequitur in that argument and you win a week's vacation at beautiful Whitewater Resort. Second prize: two weeks at Whitewater! For those of you who have the necessary background in accountancy to be modem constitutional jurists, the white voters of orth Carolina constituted 79% of the population and, after the 1-95 district was drawn, enjoyed majority status in 83% (10 of 12) of the state's congressional districts. Carey was ample precedent for Shaw v. Reno to rule that the white plaintiffs in North Carolina had "suffered no injury" by being thrown into

The World's Most Egregious Gerrymander. In every conceivable respect the Shaw plaintiffs offered a less sympathetic case than the Hasidim. No one in North Carolina, after all, sets about killing white people with the expectation that they will be cheered by the mob. Institutions fail when they can no longer resolve inhering contradictions rationally. The same Supreme Court that says the Hasidim suffered no injury now permits a few honkies, in the total absence of an articuJable principle, to alter the face of Congress for a decade because "Ow-wuh distric' look so funny, it might make them other folks fee-yul bad!" Can we talk? One of these opinions- United Jewish organizations v Carey or Shaw v Reno-is deeply flawed, and I nominate Carey for the dubious honors. Shaw v Reno should simply have overruled Carey, and done so in a way that made it unlawful for "Justice" Department types to count beans. Instead, Shaw fell into the trap of distinguishing itself from Carey, effectively strengthening Carey by suggesting that it will govern (and approve) every other plan. The question is: is Shaw v Reno merely of "academic interest" to Arkansas lawyers, or does it have the potential of changing the State's electoral maps? It may. In 1992, our Attorney General settled a suit brought under the Voting Rights Act (Hunt v State of Arkansas, ClV89-406, United States District Court, Eastern District of Arkansas) by reconfiguring the First, Second, Sixth, Tenth, and Eleventh Judicial Districts to make it more likely that black candidates would be elected as trial judges. This was done by creating within the larger units sub-districts whose composition was "majority minority." The "mechanism" used by the Hunt settlors to attain greater minority representation on the Arkansas trial bench is probably not exceptionable. Arkansas has traditionally employed "at-large" voting in judicial races, and voters in as many as four or five counties will sometimes elect a single Chancery or Circuit judge. "At large" voting inherently tends to freeze political minorities out of office, and this tendency is experienced by racial minorities as well. Federal courts have

often ordered "multi- member" districts so that racial minorities may have a fair chance of electing one of their own to office. The Hunt settlement adapts to judicial contests a remedy long used to adjust disproportionate representation in legislatures. If the settlement is vulnerable to legal challenge, it might be because the judges elected from the sub-districts "represent" a smaller number of voters than those elected from the districts at large. It is not certain that the "one man, one vote" mandate of 369 U.S. 186 (1962), extends to judicial contests, and I, for one, can think of five or six good reasons not only for declining to extend Baker v Carr, but for overruling it completely! Because Shaw explicitly approves of the use of racial considerations in drawing districts, the only real question is whether the Hunt districts pass the Court's "gag test" in tenns of appearance. My guess is that the sub-districts created within the First, Second, Sixth, and Eleventh Districts pose no Shaw problems. They are compact and contiguous, and more than that cannot be asked of them. The sub-district created within the Tenth Judicial District may pose a problem for two reasons. First, it is an obvious gerrymander. It looks like a Texas Aggie pipe wrench, i.e., one with "two heads," the jaws of which extend and gobble discrete neighborhoods out of larger towns like Lake Village for the sole purpose of assuring the formation of "majority minority" district. Second, when the Tenth sub-district was created, there was only one black lawyer residing within the Tenth District who was legally qualified to run for judicial office. The district court in HU1It identified the evil of multi- county, at-large judicial districts as "[denying] African Americans equal opportunity to participate in the political process and elect candidates of their choice." But the remedy imposed by the parties' settlement gave voters in the sub-<iistrict only one choice. Shaw v Reno, supra, specifically condemned gerrymanders that "re-enforce the perception that members of the same racial groupregardless of their age, education, economic status, or the community in which they live-think alike, share the same political interest, and will prefer the

same candidates at the polls." 125 LEd, at 529. The Hunt settlement re-enforces this perception in the most vivid way possible, by suggesting that the 22,000 black electors of the 10th Sub-District could only rationally want one specific person to hold the seat on racial grounds alone. The Hunt settlement may be suspect because of its breath-taking presumption. As I say, Constitutional Law is a perpetual feast for those inclined to Mirth. How many times have Progressives remonstrated that the competition for public benefits is unfairly skewed against women and minorities by The Big, Bad Patriarchy? Yet once Progressives enter the smoke-filled settlement room, it turns out that they are actually interested in competitions that only one person can enter with any expectation of victory.

We have a problem in this country, and Quotas are not the answer. When the State is put in charge of distributing finite benefits, individual and group competition is set in motion. Neutral principles ought to be the discriminants, otherwise the distribution becomes a kind of theft: taxes are taken from one group to bestow in the form of benefits on another. While quotas might equitably handicap a competition between two groups, they become unworkable and perverse when every group makes its claim. Mr. Justice Brennan, concurring in Carey, noted that Puerto Ricans in ew York complained about being classified along with black voters as "non-white," Subsumed within an undifferentiated "non- white" minority, instead of being treated as a distinct group in their own right, Puerto Ricans actually lost political strength, 430 U.s., at 173. Let's take a more current example. Women desire equal treatment in college athletic programs. Few schools can afford to give women as many athletic scholarships as are given to men; therefore, the number of scholarships given the men must be reduced. 33

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Huzzah, cry the levelers, it serves them right! But wait, now black male athletes protest that they are denied educationaJ opportunities so that white females can get athletic grants. And it's true: male athletic scholarships at larger state schools are awarded preponderantly to blacks, female scholarships at the same schools are won by whites. If you think about it, with the exception of track and basketball, "women's sports" are a lot "preppier" than men's. It takes a ton of money and time to develop a young woman's gymnastics talent to a point where she can dream of competing for a college scholarship. Female gymnasts are "disproportionately" white and upper middle class. A college scholarship to them is more a token of honor than a matter of necessity. Our demands that athletic grants "look like America" have inevitably led to yet another racial battle in which the victors are well-ta-do white females, and the vanquished are impoverished black males. I stand with Nolan Richardson on this issue of opportunity because think commonsense justice favors his side. Let's return to Shaw and Carey. No one has a right to "his" representative in government. If he did, we would have no elections and no representative government. That goes for groups, too. The Hasidim, whose side in Carey I favor, cannot justly claim a seat in the New York legblature al) "thei~" by history or right. Baker v Carr, supra, The Mother of All Redistricting Cases, said that the constitution requires faceless populations to be represented, not interests. When legislatures are composed of districts of roughly equal populations, as opposed to interests of roughly equal dignity, it is inevitable that members of "interest groups" may find themselves arbitrarily separated from their brethren and freakishly joined with their most implacable foes. This is called Life. The Constitution is no prophylactic against Disappointment. To the extent that some of us lose a race, or even a series of races, we have no cause to complain. We may justly complain only when the deck is stacked against us on racial grounds alone. That is a fairly simple, easily understandable Rule, the justice of 34 ARKANSAS LAWYER

SPRING 1994

which is appreciated by all but the bigoted. But that Rule was thrown out in United Jewish Orgotli:ations v Carey. Chief Justice Burger, the butt of all of Anthony Lewis's most sophisticated remarks for seventeen years, was The Lone Dissenter in Carey, and the only Justice to speak in a way that a layman can appreciate as fair and authoritative. The Chief Justice said: "I begin with this Court's holding in Gomillioll v Lightfoot, 364 U.S. 339 (1960), the first case to strike down a state attempt at racial gerrymandering. If Gomillion teaches anything, I had thought it was that drawing district boundaries in order to reach a predetermined racial result cannot ordinarily be squared with the constitution." 430 U.s., at 181.

Did you, dear reader, detect in those two sentences something like (horrors!)... a Rule? Do you detect, furthermore, a Rule that can be applied without embarrassment, and even with pride? Do you detect a Rule that resonates with ideals? Do you detect a Rule which, if applied, would injure no one, but if departed from, would require a million apologies? If so, you have detected a good Rule. The American polity has been ruined by incessant balkanizing, and the courts, more than any other institution, are responsible. After all, Congress plainly stated that nothing in Title VII of the Civil Rights Act should ever, ever be read as requiring Quotas to be established. But Quotas are both rule and remedy in Title

VII cases because federal courts are jealous of their prerogatives to "shape the proper remedy," a question-begging assertion if there ever was one. Temporizing opinions like Shaw that fail to address The Real Issue simply permit courts to impose or condone Quotas, and encourage them to write dishonestly about what it ic; they are actually doing. These issues will continue to rise, only to be met by equivocation and fecklessness, until somebody like Susan Powter gets on the Court, yells "Stop the Insanity," and whips those softies into some kind of shape. Let's pray her name is Ruth Bader Ginsburg.

Matthew Horan is a solo practitioner in Fort Smith. He is an avid watcher of politics. This is Horan's second article for The Arkansas Lawyer Maga:ine.

ENDNOTE

I I'll try to make this understandable for Yankees: The Court is Co-dependent, big time.

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In Whose Court is the Ball? The Scope ofthe People's Power ofDirect Legislation By Thomas M. Carpenter "The great end of men's entering into society being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society, tile first and ftmdamental positive law of all commonwealths is the establishing of the . It' Iegts a we power ...."1 John Locke's conclusion that the establishment of legislative power is society's primary positive law helped to

shape this Country. In addition, this premise was the only portion of Locke's second treatise to which Thomas Jefferson ever referred when writing about the Declaration of Independence.2 This primacy of legislative authority became a philosophical premise upon which the constitutional convention relied when they established the branches of the federal government. Indeed, the first article of the U.S. Constitution is devoted to a discussion of the legislative branch.3 The impact of this concept did not stop with the federal government; the

state governments also maintained a strong respect for the legislative assembly. In Arkansas, the general assembly is the first branch of government fully discussed in the Arkansas Constitution. 4 Today, however, the

legislature is not the preeminent legislative power. During a period in which the citizens became more suspect of elected officials, Arkansas joined a number of states that adopted constitutional amendments to provide for direct legislation. 5 Amendment 7 to the Arkansas Constitution defines this power and establishes the mechanism for the initiative and the referendum. In the amendment, the people reserved" ... to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and...the power, at their own option, to approve or reject at the polls any entire act or any item of an appropriation bill."6 Twenty-four states now have an

initiative and referendum measure for state government. 7 In Arkansas, this authority is extended to local government. 8 An initiative is a measure proposed by the people through a petition process and enacted only after a majority vote of the electorate.' A referendum is generally a measure adopted by a legislative body, opposed by the people and, submilled to a vote after a petition process.l O In some cases, the governing body may by choice refer a matter for a vote, II or may be required to do so by statute. 12 These matters, also referred to as referenda. are not the type governed by Amendment 7.

The direct legislative power is quite broad. The amendment is to be liberally construed in order to assure that the people are given an opportunity to vote,13 But, the power is not unlimited. Certain procedural prerequisites must be fulfilled before an initiative or referendum is submitted to a vote. The requirements are not the same for state and local measures. For example. the ballot title of state measures must be approved by the State Board of Election Commissioners before submission, while local mailers are approved by the County Election Board. 14 However, the focus of this article is on the subject matter of local direct legislation and not on procedure. Since only legislative mailers may be the subject of the initiative or referendum, an important question is what constitutes a legislative act? Also, what seemingly legislative matters are outside the scope of Amendment 7? One limitation on Amendment 7 is that the proposed measure must be one which the governing body has the authority to adopt. Municipalities may only provide for the exercise of the initiative and referendum as to their legal legislation. 15 So, the people may not initiate a matter that the city council could not otherwise adopt. For example, many city councils are asked repeatedly to adopt some form of gun control within the city. State law expressly preempts such local action. 16 Hence, an initiated gun control ordinance should not proceed to a vote since it is not "legal legislation" - i.e., since the city

counciJ cannot enact it, the people cannot directly enact it'7 What about the adoption of purely local legislation? The Arkansas Constitution prohibits local legislation in Amendment 14. Can citizens directly propose an ordinance that is purely local in nature despite this constitutional ban? Generally, the answer is yes. 18 However, purely local legislation that conflicts with a state statutory scheme is not permilled. Another" limitation is the time frame in which a petition must be presented. The state constitution permits cities to set up the framework for the initiative and referendum. 20 As a result, failure to request a special election in a petition can delay an initiative even though the vote at the general election would be mooted by the passage of time. 21 However, if no time frame is included in the ordinance creating the procedures, a governing body must set an election within a reasonable time and may not thwart a measure by setting the date of the election too far off. 22 In some states, legislation that has an emergency clause is not subject to a referendum since the legislation is effective on the date of its adoption.23 In Arkansas, an emergency clause is not a bar to direct legislation. While the mailer enacted with a proper emergency clause may take effect immediately upon its adoption, it is still subject to being set aside after a referendum. 24 One interesting question is whether, in a state that allows for a referendum, an initiative can be proposed that repeals an ordinance? The argument against such an initiative is that the people waive their right for direct election when they fail to refer a matter for a vote after its initial adoption. The issue, though. is whether the subject of the initiative is a legislative matter? if so, then an initiative to repeal a prior legislative act is permissible. 25 Are all actions taken by a city council subject to direct legislation? No. For example, the decision to call an election on an annexation question is not itself subject to a vote. 26 Similarly, some issues, like the creation of an improvement district, are so special in nature that they are not a proper subject for direct legislation路 27 Notwithstanding these limited concerns, how does a court determine whether a matter is properly the subject of an initiative or referendum? The key issue is whether the subject to be voted upon is a legislative matter. If not, it is not a proper subject for direct legislation. 28 Not all actions of local governing bodies are legislative because these bodies do not act in a strictly

legislative capacity.29 Many actions are administrative in nature, but Amendment 7 concerns only legislative matters. Unfortunately, the distinction between administrative and legislative action is vague and gives the courts considerable latitude to determine if direct legislation is proper. As a general rule, a matter is legislative if it sets government policies or purposes, but is administrative if it merely carries out policies and purposes already declared.30 The determination of this point is not easy. Consider this question: Is a measure to accept public housing aid from the federal govemment, pursuant to a federal act, a legislative or an administrative decision? In California, it was deemed to be administrative since the state government had to first enact enabling legislation to help cities take advantage of the federal act. 31 However, Arkansas ruled that it was legislative since the action was permanent in character. 32 These determinations necessarily rely upon the court's characterization of certain facts. For example, in Scroggin v. Kerr,33 the Arkansas Supreme Court concluded that a city ordinance authorizing a cooperation agreement with a federal housing authority was a legislative act. This agreement was the finaJ step of implementing a federal act authorized by state enabling legislation and agreed to in a separate local ordinance.34 However, until the ordinance authorizing entry intothe cooperation agreement was adopted, full implementation of the federal act had not occurred. Hence, this second ordinance was legislative in nature and, therefore, subject to referendum. One example of an administrative act is the appointment of a citizen to a city commission.35 Under state law,36 cities of the first class create civil service commissions by ordinance. Once a commission is created, the governing body selects persons to serve on the commission. 37 Is this selection administrative or legislative? In Greenlee v. Muml, the Arkansas Supreme Court held the selection of a commission member to be purely an administrative act, so a referendum petition was properly ignored by the city c1erk.38 The Court stated that any right, duty or status conferred by the commissioner's appointment was dependent upon the earlier enabling ordinance creating the civil service commission,39 In other words, the appointment did not make any new policy, but merely fulfilled a policy created by the earlier ordinance. At first blush it is difficult to see how

these cases can be reconciled. In Scroggin, the state enabling legislation also created the right to a housing authority, so it would appear that the city ordinance permitting a cooperation agreement merely executed that determination i.e., that it was a purely administrative act. The distinction, though, is that until the cooperation agreement was entered, the city did not have to have a housing authority despite its earlier ordinance stating an intention to do so. However, in Greenlee, once the ordinance adopting the civil service commission had been enacted, the city had to have civiJ service commissioners. Therefore, selecting a commissioner was a purely administrative act. The mere fact an earlier legislative act requires a later act does not necessarily mean that the later act is administrative. This question was addressed by the Arkansas Supreme Court in City of North Little Rock u. Gonnan. 40

In Gorman, the question was whether a utility rate increase to operate an electric utility and raise general revenues was a legislative act. Using the Greenlee rationale, the action seemed to be administrative since an earlier ordinance created the utility and the city had to have utility rates to pay for it. But, since the rates did more than pay for the utility - i.e., since the rates also raised general revenues the ordinance was legislative and subject to referendum. 41 In other words, while the action creating the utility may have required rates, it did not necessitate a revenue measure as opposed to a measure to pay the actual costs of operation. Another example of this premise is demonstrated if a city were to adopt a capital improvement bond issue to build streets. Is a subsequent resolution to use the funds to build a particular street an administrative or a legislative act? If the initial bond issue specifically named the street, it is clearly an administrative act to execute a previously decided policy. But, what if the ballot title provided for streets in general? The Arkansas Supreme Court has not addressed this specific issue. Indirectly, hqwever, the Court has indicated that such an action is administrative. After they became law without referendum, however, the legislative phase of the project was ended. The final

ordinance was nothing more than an administrative enactment, carrying out the previously enacted laws.. In State ex rei. Hall v. Morton, 128 Kan. 125,276 P. 62, a city ordinance which fixed the route for a new highway through the city was held to be administrative merely, not

legislative, therefore not subject to referendum, when it did no more than carry out an already existent law which prOVided for the construction of the highway.42

chancery court. However, if the clerk refuses to certify the petitions, mandamus may lie in circuit court to require the clerk to perform this ministerial act. 48

The Court has noted special deference to the Oregon Supreme Court on unanswered questions of this type "since Amendment 7 is largely patterned after those of the state of Oregon....."43 Oregon has stated that this type of decision is administrative. 44 One reason for this conclusion is that the policy question is whether to build a road. Once this decision is made, local governments must be free to execute the policy decision without undue interruption. As one court stated, the fact a bond issue may not specifically identify the location of each project may be a reason to vote against it, but it does not change its nature from legislative to adminis-trative. 45 A framework for analysis may be as follows: There is a presumption in favor of elections, since Amendment 7 is to be liberally construed. However, direct legislation applies to legislative acls and not to administrative matters. Why? Because city officials make numerous administrative decisions on a daily basis and "to subject each such decision to referendum would result in chaos and bring the machinery of government to a halt."46 So, the focus is whether a council's action is the fulfillment of a legislative decision that has been previously authorized and put into action. If so, and the present action does no more than carry out the previous authorization, Amendment 7 is inapplicable. However, if the present action is necessary to actually bind the city to carry out the previous authorization, or if the present action does more than is necessary to carry out the authorization, Amendment 7 applies and an election is appropriate. 47 For example, an ordinance to select the site for a new city hall to be built with previously authorized capital improvement bond funds is an administrative action. But, an ordinance to locate a "smoke-free" city hall authorized with such funds goes beyond the necessary purpose and is subject to referendum. Why? Because the "smokefree" decision is a policy i.e., legislative - act ultimately reserved to the people to address if they so desire. One important consideration is where these questions get answered? It depends upon how the issue is raised. lf the local government official - usually the city clerk - certifies a petition for initiative or referendum, then a challenge to the sufficiency of the petition is in

To be sure, the law in this area is often confusing and depends upon fine distinctions. One reason for the confusion is tha t the guidelines for direct legislation require much to be done within a short time frame before an election, or after the submission of a petition. These questions arise quickly and are often given expedited review by the cou.rts. 49 The haste with which some of the decisions are rendered may account for the later difficulty in distinguishing facts and rationales. In difficult cases, the bias in favor of elections under Amendment 7 may lead to unfortunate decisions because the courts will err in favor of lelling the people have the vote they desire. Conclusion The people have reserved to themselves the ultimate right to deal with legislative matters. Yet, despite this broad reservation of authority, it is not an absolute right to deal with all questions addressed by governing bodies. In addition to any procedural questions about direct legislation, one important issue is whether the matter initiated, or referred, actual adopts a policy, or merely executes a previously approved policy. The people are the ultimate deciders of policy, but they are not the executors of policies already established.

TIumuJs M. Ozrpmter is the City Atlont<!yfor the City oJ Litlle Rock. H. is a fm/uenl writer lind innovative idea contributor for The Arko...a. lAwyer Magazine.

ENDNOTES 1 John Locke, THE SECOND TREATiSE OF COVERNMENT 75 (Peardon ed., student ed. 1962)(3rd ed. 1698) [Emphasis added I. 2 Cary Wills, INVE!'ITINC AMERICA 1n73 (1978). 3 U.S. Const., art. I. 4 Ark. Consl, art. V. The general assembly is comprised of a bicameral legislature. 5 For a more thorough discussion of this period, see Hurst, THE GROWTH OF AMERICAN LAW 37-39 (1950). 6 Ark. Consl., amend. VII, ยง1. An initial form of this amendment was adopted in 1911 and h[gl"rew out of a great political agitation, which stirred the people of the whole state, and in which the most tremendous issues were involved." Brickhouse v. Hill, 167 Ark. 513,516, 268 S.W. 865, 877 (1925)

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(Coleman, Sp.J., dissenting) The amendment received 86,360 voles in favor, but only 43,662 votcs against. Nonetheless, the Speaker of the House of Representatives declared that the amendment had failed because it had not received a majority of the votes possible. The Arkansas Supreme Court held that the amendment had been adopted. Brickhouse v. Hill. 167 Ark. at 268 S. W. at 869. 7 "Taking the Initiative," Wall Street Journal December 1, 1992, A-n. 8 Ark.Const., amend. VU. 9 S. Eugene McQuillin, MU ICIPAL CORPORATIO S§16.52 (3rd ed.1989). 10 S. Eugene McQuillin, MU ICIPAL CORPORATIO S §16.53 (3rd ed. 1989). 11 Ark. Code Ann. § 14-55-301 (Michie 1987). 12 See, e.g., Ark. Code Ann. § 14-ID-303 (Michie 1987)(annexation); § 26-73-208 (Michie 1987}(municipal sales tax). 13 Leigh v. Hall, 232 Ark. 558. 339 S.w.2d 104 (1960). 14 Ark.Const., amend. VII (The Petition: Title). 15 Ark.Const., amend. VII (Local Petitions) 16 Ark. Code Ann. § 14-16-504 (Michie Supp. 1993) (after a proclamation by the Governor a limited measure effective for only 20 days may be adopted by a two-thirds votc of the governing body). 17 Aile" V. Langston, 216 Ark. 77,224 S.W.2d 377 (1940) (county enacted local automobile license after state law had exclusively addressed the issue); Til/dall v. Searan.192 Ark. 173,90 S.W.2d 476 (1936) 18 Rooker v. City of Little Rock, 234 Ark. 372,

352 S.W.2d 172 (1962). 19 AI/ell v. umgslo", 2]6 Ark. 77, 224 S.W.2d 377 (1940) 20 Ark. Const., amend. VII (Local Petitions) 21 See Quatteloollm v. Davis, 265 Ark. 588, 579 S.W.2d 599 (1979) 22 Lewis v. COlilee, 2S8 Ark. 715, 529 S.W.2d 132 (1975). (21 months away from filing of petitions deemed an attempt to thwart the election). 23 See Comment, Limitations on lnitiative and Referendum 3 Stan. L. Rev. 497, 499-502 (1951). 24 Railey v. City of Magnolw, ]97 Ark. 1047, 126 S.W. 2d 273 (1939). 25 Coc/lran v. Black, 240 Ark. 393, 400 S. w. 2d 280 (1966)(upholding initiative ordinance repealing a resolution creating a local housing authority). 26 Chastain v. City of Little Rock, 208 Ark. 142, 185 S.w.2d 95 (1945). 27 Hodges v. Board of Imp. of W.W.lmp.Dist. 22,117 Ark. 266, 174 S.w. 542 (1915). 28 Scroggins v. Rerr, 217 Ark. 137, 228 S.W.2d 995 (1950); Greenlee v. MlI1m, 262 Ark. 663,559 S.w.2d 928 (1978); City of Nortll Little Rock v. Gormall, 264 Ark. ]50,568 S.W.2d 48] (1978). 29 Scroggins, 217 Ark. at 142, 228 S.W.2d at 998. 30 S. Eugene McQuillin, MUNICIPAL CORPORATIONS §16. 55 (3rd ed. 1989). 31 Kleiber v. San Francisco, 18 Cal.2d 718, 117 P.2d 657 (1941); see also, 3 Stan.L.Rev. 503. 32 Scroggi,ls, 217 Ark. at 137, 228 S.W.2d at 995. 331d.

34 I d. 35 Greenlee, 262 Ark. 663, 559 S.W.2d 928. 36 See. e.g.. Ark. Code Ann. §§ 14-50-201 (Michie 1987 & Supp. 1993). 38 Greenlee, 262 Ark. 663, 5S9 S. W.2d 928. 391d. 40 Gorman, 264 Ark. 150, 568 S. W.2d 481. 41 Gorlllan, 264 Ark. at 158, 568 S.W.2d at 485. 42 Scroggins, 217 Ark. at 145,228 S.W.2d at

999. 43 Paving Dist. No. 36 v. Little, 170 Ark. 1160,1165,282 S.W. 971, 973 (1926). 44 Tillamook People's Utility Dist. v. Coates, 174 Or.476. 149 P.2d 558 (1944); Monalmn v. Funk, 137 Or. 580 3 P.2d 718 (1931); accord, Wnmestrom v. City of Mesa, 169 Ariz. 484, 821 P.2d 146 (1991). 45 We"nestrom, 169 Ariz. at , 821 P. 2d at 153. It should be noted, however, that when this precise question was presented to an Arkansas trial court, the heavy presumption in favor of an election resulted in the matter proceeding to an ejection. Alice Andrews, et al v. Robbie Hancock, 92--4827 (Pulaski Circuit 13rd))(Augusl 28, 1992); see also. Carpenter v. City of Paragould, 198 Ark. 454, 128 S.w.2d 980 (1939). 46 Witcher v. CallO" City, 716 P.2d 445, 449 (Colo.1986) . 47 Rich v. Walker, 237 Ark. 586, 374 S.W.2d 476 (1964). 48 See Czecll v. Boer, 383 Ark. 457, 677 S;W.2d 833 (d984)6 888 (1993). 49 Moormall, sllpra.

ATTORNEY-MEDIATOR SERVICE WINSLOW DRUMMOND 711 West Third Street Post Office Box 1401 Little Rock, Arkansas 72203 Telephone (50l) 376-3021 Telecopier (501) 374-5118

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ARKANSAS LAWYER

SPRING 1994

To Run or Not To Run: The Legal Hurdles Facing aCandidate By Lamar Pettus andTem A. Tolbert* There are few legal limitations that preclude a candidate for public office from making a promise to the electorate, such as candidate George Bush's".. read my lips no new taxes" promise not to raise taxes in his 1988 acceptance speech.' The historical premise for the lack of legal regulation is that nonlegal repercussions will deter and punish candidates who leave campaign promises unfulfilled. This article will analyze the limitations on campaign promises in Arkansas as well as the financial reporting requirements for both state and federal candidates. Additionally, the discussion will compare the differences between the restrictions on candidates seeking a state or local office and judicial candidates. Nonjudicial Candidates The Arkansas General Assembly has mandated that certain acts by a candidate are unlawful. The list ranges from forbidding the use of public office space for campaign activities to outlawing betting on the outcome of an election. A candidate offering to appoint a supporter to an influential position or offering influence in exchange for support falls within the obvious ethical violations such acts are grounds for criminal prosecution. Additionally, it is unlawful for a public employee to spend any time during office hours working on any campaign. (See A.CA. ยง 7-1-103). These restrictions could be considered commonsense dictates regarding a candidate's activities and public employee's use of their work day. Based on the lack of specific prohibitions on election promises, it appears Arkansas follows the long standing view the electorate will regulate campaign activities. Because of this concern of public reprisal a candidate will be prevented from promising everything to everyone. The United States Congress mandates requirements similar to those enacted by the Arkansas General Assembly. Federal legislation forbids a state or local officer or employee from using their official authority or influence to influence the result of an election, directly or indirectly. Congress recently amended the "Hatch Act," 5 U.S.CA. 7324, which previously prevented a federal employee from actively participating in a political campaign. The amendment's purpose is "to restore to [f]ederal civilian employees their right to participate voluntarily, as private citizens, in the political processes of the [nlation..... Federal employees are still prohibited from using their official influence to affect the outcome of an election. Congress now allows an employee, acting in the capacity of a private citizen, to take an active part in political management or political campaigns. A few specialized employees are still banned from taking part in a campaign, for example an employee of the Federal Election Commission. The amendment further explains the l

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Edward l. Wright (1903-1977) Robert S. Lindsey (1913-1991)

Ronald A. May Isaac A. Scou, Jr. James M. Moody John G. lile Gordon S. Rather, Jr. Terry L. Malhews David M. Powell Roger A. Glasgow C. Douglas Buford, Ir. Patrick I. Goss Alston Jennings, Jr. John R. Tisdale Kathlyn Graves M. Samuel Jones III John William Spivey III Lee J. Muldrow Wendell L. Griffen N. M. Norton, Jr. Edgar J. Tyler Charles C. Price Charles T. Coleman James J. Glover Edwin L. Lowther, Jr. Beverly Bassett Schaffer Charles L. Schlumberger Sammye L. Taylor Walter E. May Anna Hirai Gibson Gregory T. Jones H. Keith Morrison Bettina E. Brownstein Walter McSpadden Roger D. Rowe Nancy Bellhouse May John D. Davis Judy Simmons Henry Kimberly Wood Tucker Mark L. Pryor Ray F. Cox, Jr. Harry S. Hurst, Jr. Troy A. Price Patricia Sievers Lewallen James M. Moody, Jr. Kathryn A. Pryor J. Mark Davis Kevin W. Kennedy Karen J. Garnett Mark A. Rogers M. Todd Wood R. Gregory Adin Fred M. Perkins III William Stuart Jackson Michael D. Barnes Stephen R. Lancaster Fred Andrew Wood Judy M. Robinson Betsy Meacham Alston Jennings George E. Lusk, Jr. Of Counsel

prohibitions against an employee seeking political contributions. 2 Congress's restoration of a federal employee's right as a private citizen to campaign actively loosens the ban which existed on a federal employee's political activities. The amendment's redrawing of the limits on political activity and employment capacity creates a need to define the line between official influence and private activity. This determination will probably be an wered by a government agency or the judicial system. In Arkansas, the perception the electorate will effectively regulate a candidate's activities may slowly be changing with the times. Evidence of this trend is the formation of the State Board of Election Commissioners which was created by enactment of Title 7 Chapter 4 of the Arkansas Code Annotated. The state board will police the county commissioners and ensure the election laws are enforced. The Board's planned duties will include investigation of electorate complaints about a candidate's violation of election laws. The commissioners are to enforce election laws such as the law which prevents a candidate from campaigning within one hundred feet of a polling place. The board will not investigate a specific candidate's activities other than to ensure the candidates are complying with the election laws. If a citizen feels a candidate is violating an election law, then a complaint should be brought to the attention of the county commissioners. Lf the problem is not corrected, the state board will step in to ensure the county commissioners are enforcing election laws. The board was formed to ensure a candidate's campaign activities comply with the state election laws. It is unclear what effect the board's efforts will have on the current tumuJt in political campaigns. The Arkansas Ethics Commission was formed to oversee financial campaign activities by enforcing the requirements placed on contributions and expenditures in an election campaign. Along with the Ethics ommission, the General Assembly by A.C.A. ยง7-1-106, has mandated that the Secretary of State maintain an election expert, which is fulfiJled by the election department. The department is responsible for receiving a candidate's financial expenditure and contribution reports. The Ethics Commission investigates complaints regarding a candidate receiving improper contributions or making inappropriate expenditures. If a citizen has a complaint based on an individual candidate's conduct, there is no formal means to file a complaint, unless it is also an election law or financial

contribution violation. The last option for a citizen with a complaint is to use personal funds to file a lawsuit against the candidate. Arkansas's lack of a formal complaint system is based on the historic belief the electorate will regulate a candidate's activities. The current system has worked, more or less, to date, however, it may be time to consider stricter guidelines on a candidate's campaign activities.

The General Assembly has set strict guidelines concerning who can receive a contribution, who can give a contribution, and the contribution amounts. Contributions are not merely money given to the candidate. A contribution can include anything of value that is given either indirectly or directly for the purpose of influencing a candidate's election. The General Assembly has set rigid standards on the amount of money a person can contribute to a campaign. A monetary campaign contribution by an individual cannot exceed $1,000 per electioni however, a state political party can contribute up to $2,500 to a candidate per election. Additionally, a candidate cannot solicit or accept contributions more than two years before an election. No cash contribution may exceed $100. If a candidate receives an anonymous contribution of $50 or more it must be given to the Secretary of State to deposit in the State Treasury. Volunteer personal services which are not compensated are not considered a contribution which must be reported. This exemption for volunteer services encourages a candidate to use a large number of volunteers. Proponents argue the restrictions on contributions combined with the exemption for volunteer services will allow access to political office to a larger segment of our citizens and will result in expanded participation in the political process and less costly campaigns. A candidate seeking public office in Arkansas must keep meticulous records, reporting to the Secretary of State all contributions and expenditures after reaching the threshold amount. Each candidate for office who receives more

ARKANSAS LAWYER

SPRING 1994

than $500 in combined campaign contributions a month must file a detailed report with the Secretary of State or county clerk. The election laws require specific reports itemizing each contribution exceeding $100. The exact time periods and the detail of the reports vary somewhat depending on the office sought. Generally, the report must include a total amount of contributions and

expenditures. pertinent information regarding the contributor, and nonmonetary contributions other than an individual volunteer's services. The

financial reports are public records which will be retained by the Secretary of State for eight years and then delivered to the Arkansas History Commission. Title 7 Chapter 6 of the Arkansas Code Annotated requires careful study by one seeking to comply with campaign reporting laws.

The requirement that detailed reports be kept by a candidate is not unusual. This system is one of the main tools state legislatures use to regulate a candidate's campaign activities. The complexity of the federal reporting requirements are beyond this article's

scope; however, a candidate for office at the national level should recognize they

must comply with the additional requirements. A candidate seeking a national office will face similar but more extensive reporting requlrements which are generally found in 2 U.s.CA. 432 et seq. In comparison, a candidate for federal office must designate a principal campaign committee within fifteen days after becoming a candidate. Every committee must have a treasurer to record all contributions and expenditures. 0 contribution can be accepted without a treasurer. The treasurer must use best efforts to comply with the reporting requirements. No money can be disbursed without a treasurer. As in Arkansas, an individual's volunteer services are not considered a contribution which must be reported. The requirement to report contributions varies with the office sought. The federal requirement for

44 ARKANSAS LAWYER

SPRING 1994

reporting a specific contribution by an individual or political committee begins with a contribution exceeding $200. A candidate with a question about the reporting requirements can contact the Federal Election Commission for an advisory opinion which will issue within sixty days of the request. Congress and the Arkansas General Assembly have used financial reporting requirements as a means to regulate campaign activities without regulating directly the comments made by a candidate. Additionally, both the federal and state legislatures appear to allow the electorate to regulate the outer limits of a candidate's activities. Campaign reform is one topic which is frequently promised by a candidate. The problem arises in determining where a candidate's free speech, in conjunction with the public's need to know a candidate's stand on the issues, should yield to prevent mudslinging and misleading promises. Judicial Candidates The election laws which apply to a candidate for state or local office also apply to a candidate seeking a judicial office. Additionally, a judicial candidate is bound by the Judicial Code of Conduct. A candidate seeking a judicial office is faced with the difficult task of maintaining an impartial viewpoint while being accountable to the people on which the candidate passes judgment.3 As election day nears the difficulty of this task increases. The Arkansas Code of Judicial Cond uct Canons 5 and 7 adopted from the model rules, sets out activities which are inappropriate for a candidate for judicial office. The constitulionality of clause 7B(I)(c) is much debated both in litigation and academic discourse. In short, the disputed clause maintains that a candidate "(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of

the duties of the office; announce his views on disputed legal or political issues; or misrepresent his identity, qualifications, present position, or other fact." The constitutionality of this clause in Arkansas appeared settled when a Federal District Court determined this clause was unconstitutional. 4 The court stated Cannon 7B(I)(c) was "overbroad and vague and as such, had the force and effect of inhibiting unduly protected freedoms of expression." District Judge Howard had granted Sandford Beshear's Motion for Summary Judgment. The Commission appealed, arguing the District Judge should not have disposed of the issue by Summary Judgment - such action being premature. The Eighth Circuit agreed and reversed. The case was scheduled for trial in December, 1993. Before trial the attorneys submitted the case on stipulated facts. Briefs have now been submitted and the case is under consideration by Judge Howard. Canon 7B(1)(c) is still in effect in Arkansas. One can anticipate an appeal of Judge Howard's decision once rendered. Beshear also filed a motion to incorporate the recently adopted Canon 5A(3)(d) of the Revised Arkansas Code of Judicial Conduct. The Arkansas Supreme Court adopted Canon 5, July 5, 1993. This Canon retains the controversial text that is at issue in Sandford Beshear's case. The commentary to Cannon 5A (3) (d) indicates a candidate may have an affirmative duty to emphasize in any public statemenl the candidate will uphold the law regardless of personal views. This presents the odd situation of allowing a judge to say, "I believe this, but my belief won't mean anything when I'm on the bench. liS It is questionable whether allowing judicial candidates to emphasize personal views are not relevant in fulfilling one's judicial office will satisfy the voters' desire 10 know a

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candidate's particular position on controversial subjects. Proponents of the clause assert judicial candidates should not publish to the electorate their private views on disputed issues. The reasoning is if a candidate is truly impartial, once in office the candidate will not give effect to personal views; therefore, any political speech on private views are irrelevant. 6 The Arkansas Judicial Code of Conduct, Cannon 7, further restricts the solicitation of campaign contributions beyond those required by statute. A judicial candidate should not personally solicit or accept campaign contributions. A judicial candidate must form a committee to solicit and expend campaign funds; however, the committee can not accept or solicit funds more than one hundred and eighty day before the judicial primary or forty-five days after the final election date. These restrictions may alleviate the need for the judicial candidate to spend a great deal of time soliciting contributions, however, it increases the pressure in the time allowed to raise the funds needed to drive a candidate's judicial campaign. The Arkansas Code of Judicial Conduct subjects a judicial candidate to possible disciplinary action for violating the Canons. This burden, along with the election laws, which apply to all candidates should be considered by a person contemplating seeking a judicial office. Severe disciplinary sanctions are possible within the judicial code of conduct. A nonjudicial candidate seeking office is not faced with the possible restriction on their professional activities. A judicial candidate could lose the ability to earn a living due to a breach of the judicial code of conduct? The requirements placed on a candidate seeking office in Arkansas vary based on the office sought. The campaign laws in Arkansas allow a candidate running for any office, other than a judicial office, a great deal of discretion in the promises one makes to the public. Due to the Arkansas Code of Judicial Conduct, a candidate for judicial office may do little more than give one's name, party affiliation, and the office sought. In the eyes of the public it is almost as though a judicial candidate is reduced to little more than name, rank, and serial number. A judicial candidate's campaign is impeded by the following: the restrictions on seeking campaign contributions; the possible imposition of sanctions outside the election laws; and

the constraints on what a judicial candidate can say to the public. Additionally, these obstructions limit the public's ability to make an informed choice. The disparity in the restrictions placed on various candidates is somewhat alarming. Can the inconsistency in the treatments of candidates-dependent solely on the office sought-be resolved? Should the inconsistency be resolved? The greatest shock to a successful candidate may come after the oath of office is taken and the candidate is told to comply with the requirements set forth in A.C.A. 21-8-301 et.seq. In many cases only then does the candidate learn Arkansas requires a public official to file a financial disclosure statement. One may be shocked by the disclosure which must be made as a public record each year. The statement requires: the name and address of any enterprise in which the person has a direct financial interest in excess of $1,000; the name and address of any person from which the official received compensation in excess of $1,500 in the preceding year; and the name and address of any person or enterprise from which the official received in excess of $12,500 in the preceding year. This list is not limited to campaign contributions. It requires anyone holding a public office to disclose completely their financial activities. In the case of an attorney, who also holds public office, it requires disclosing to the public the name of all clients who have paid in excess of $1,500 in legal fees in the past year. The reason for these in-depth revelations is to determine if the office holder has a possible conflict of interest. One could argue a public official relinquishes his or her right to keep this information private, however, the disclosure of this private information is quite intrusive. A person seeking public office should know the reports and requirements of the state do not cease once the election is over. In fact the reports become more comprehensive and detailed when one is elected.

A campaign can be a long and grueling contest. The time and money required to propel an effective campaign can strain an individual's personal life and bank account.

For the sole practitioner or an attorney who is not paid a salary, the post election disclosure requirements may be the hoop at which a lawyer draws the line. To date, the legislature has made no concessions which will allow a lawyer the right to withhold information which arguably is confidential.

Lamar Pettus is the senior partner in TI,e Pettus LAw Firm in Fayetteville. He is also the current President of the Arkansas Bar Association. Pettus has been active in several judicial campaig1Js including those of Arkansas Supreme Court Justices David Newbern and Bob BroWlI. ·Terry A. Tolbert clerks for the Pettlls Law Firm, P. A. and anticipates receiving "is Juris Doctorate degree in Illne 1995. 1 Stephen D, Sencer, Read My Lips: Examining the Legal Implications of Knowingly False Campaign Promises, 90 Mich. L. Rev. 428

(1991). 2 Hatch Act Reform Amendments of 1993,

Pub. L. No. 103-94, 107 5tat. 1001 (1993) (amending 5 U.s.CA. §§1216 (c), 3303, 73217326 (West 1993»). 3 Daniel Burke, Code 0/ Judicial Conduct Canon 78(1)(c): Toward the Proper Regulation of Speech in Judicial Campaigns, 7 Geo. J. legal

Ethics 181 (1993). -I Beshear v. Blltt, 773

F.Supp 1229, 1233 (E.D.

Ark. 1991), rev'd. 966 F.2d 1458 (8th Cir. 1992) (without published opinion). 5 Reynolds Cafferata, A Proposal for an Empirical Interpretation of uno" 5, 65 5, Cal. L.

Rev. 1639 (1992). 6 Daniel Burke, Code of Judicial Conduct Canon 7B(1)(c): Toward the Proper Regulation of SpeecJr in Judicial Campaigns, 7 Geo. J. legal

Eth;cs 181 (1993). 7 See, Roles Of Procedo... Of The ArkQnsas Judicial Discipline And Disability Commission,

Rule 8 (1993).

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erm lIlll S: anacea or na e i? By Jim Argue, Jr. The fervor to limit the tenure of state and federal legislators is sweeping America. Seventeen states, including Arkansas, have adopted some variation of a term limit measure. The proposal passed decisively in every state in which it was considered with an average 67% of the votes. The issue will be on the ballot in more states this fall. The only impediment to the movement's success seems to be that only 23 of the 50 states allow citizens to place issues directly on the ballot through an initiative process. In Arkansas, the term limit proposal, known as Amendment 73, passed with 60% of the vote and applies both to state legislators and the Congressional delegation. It's puzzling, however, that while Arkansas voters expressed their strong support for term limits, these same voters chose to return Dale Bumpers to his

include a properly worded enactment clause. An Arkansas Democrat-Gazette editorial lambasted his decision as

defines the qualifications for service in Congress and then says each house "shall be the judge of the elections, returns and

subverting the will of the people and as displaying a lack of judicial common sense.' Some observers attribute the recently organized petition drive to put judicial term limits on the ballot as an outgrowth of the public outrage over the

qualifications of its own members." They believe these provisions make clear that states cannot add a substantive legal qualification for election to Congress. Term Iimiteers insist that term limits are not an additional "qualification" for Congress but a permissible regulation

decision.

Piazza's decision has been appealed to the Arkansas Supreme Court. As of this writing, four Justices have recused

that gives states the authority to prescribe the "time, place and manner" of holding

themselves, special justices have been appointed, and a decision is expected before the publication of this article. Few,

congressional elections. Additionally. in some states they argue that a legislator who reaches the limit of terms is actually

however, expect the disposition of this case to end the debate or litigation over term limits.

not barred from seeking the same office, but rather, simply restricted from being listed on the ballot, and therefore, forced

A Certain Constitutional Test

to run as a write-in.

Although Piazza's ruling was not based

fourth term in the U. S. Senate with an identical 60% tally. The same contradiction played out at the district level. Rep. Mike Wilson of jacksonville, the 24th most senior member of a lOOÂˇmember House, was reelected with 63% of the votes to an eleventh twoyear term, yet his district supported term

on the constitutionality of state statutes limiting federal office holders, the issue is sure to receive much attention. A U.S. District Court case challenging the

limits at a 62% clip. In july, 1993 Circuit judge Chris Piazza

Supreme Courl. 2 Opponents of federal term limits argue that Article I of the U.S. Constitution

ruled the act invalid because it did not

under a separate constitutional provision

constitutionality of Washington State's measure to limit tenure in Congress (Thorsted," al v. Eikenberry, et aI, No. C-921763WD) is expected to reach the U.S.

Where's The Beef? The explanation for the popularity of term limits requires little elaboration. A "Throw the bums out!" altitude permeates the American political scene. Voters are convinced their elected representatives are

out of touch with average folks. Many suspect elected officials are "perk-drunk careerists who labor slavishly for special interests while bribing the electorate with pork.'" Congressional gridlock on important issues, and well-publicized episodes such as the effort to raise

ARKANSAS LAWYER

SPRING 1994

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congressional salaries without a roll call vote, and the 1991 House banking scandal, only confirm suspicions. Similar events at the state level included a surreptitious effort in the 1993 session of the Arkansas General Assembly to provide health insurance to retired legislators. It failed on a roll call vote in the House and was never even considered by the Senate, but, nevertheless, the ensuing publicity further undermined public confidence in elected representatives.

Conventional wisdom is that term limit leaders are mostly conservative and Republican. These assertions rest on two theories. The first is that the elimination of veteran legislators and the weakening of the legislative branch would be conducive to the conservative doctrine of a smaller, less active government. The second theory assumes that Republicans favor term limits because of their frustration from failed efforts to reverse the Democratic Party's virtual 38 year reign as majority party in Congress. There are indeed high-profile Republican operatives in the forefront of the term limits organization. 4 A call for term limits was included in the 1988 and 1992 Nalional Republican Party platforms. The effort is also being organized and financed at the national level. In Arkansas, over 80% of the campaign budget for the term limit proposal came from out-of-state sources. Total campaign revenue for Amendment 73 was $187,171. Of this total, $145,659 came from U.S. Term Limits, a lobby group headquartered in Washington, D.C. s Unfortunately, Arkansas campaign disclosure laws do not require itemized reporting of U.S. Term Limits contributors. But regardless of the movement's origination and funding, support for term limits is consistently strong among voters, regardless of party affiliation, ethnic grouping, or economic circumstances.

The Issue's History Many view the limitation of terms as a recently conceived proposition, but, in reality, the debate concerning "rotation in office" spans our nation's history. The Articles of Confederation, the Constitution's predecessor, included a term limit for members of the Continental Congress. These delegates were elected by state legislatures rather than the people, and the use of limited terms is indicative of the states' distrust of centralized government. The Confederation proved unworkable, and, when the Founding Fathers assembled for the Constitutional Convention, the term limits idea was quickly dropped. James Madison and Alexander Hamilton opposed limits, while Thomas Jefferson, from his ambassadorial post in France, supported them. Madison, perhaps the most influential figure in the Convention, sharply stated the argument against limits in the Federalist Papers: "A few of the members [of Congress]... will possess superior talents; will by frequent re-elections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. The greater the proportion of new members... the more apt they be to fall into the snares that may be laid for them." Life in Washington during the Capitol's infancy was a miserable affair, and it is not surprising that Congressional tenures tended to be brief by modern standards. George Washington established the two term custom for presidential tenure, and it remained intact until Franklin Roosevelt broke with tradition in 1940 by seeking and winning his third term. He was re-elected again in 1944 but died just three months in to his fourth term. In 1946, Republicans captured control of Congress and began working their revenge on Democrats by pushing a constitutional amendment to limit presidents to two terms as a matter of law." The 22nd Amendment to the U.S. Constitution was eventually ratified in 1951. Ironically, the amendment has limited only Republican Presidents; no

Democrat has completed two terms since ratification. Also in 1951, Harry Truman became the first president to formally urge restrictions on congressional tenure. Truman's proposal was widely viewed as an attack on the seniority system, since many committees were chaired by long~ serving Democrats from the one~party South who were giving Truman fits with his civil rights legislation. Gallop polls registered 49% approval of congressional term limits in 1964; polls register 70% approval today. Some researchers link the idea's increasing popularity to the frustration produced by a divided government, one gridlocked by a long era of Democratic Congresses and Republican White Houses. More than 60 term limit proposals were introduced in Congress between 1975 and 1988, but none was ever voted on in committee or on the House or Senate floor. Term Limit advocates eventually abandoned efforts to place their amendment in the U.S. Constitution and turned to the stales. Today we have a haphazard assortment of term limit measures in seventeen states. U. S. Senators and Representatives are restricted in 15, while 2 apply exclusively to state office holders. Sixteen include state legislative limits; orth Dakota has federal limits only. Some impose lifetime limits, others only restrict consecutive terms. Some apply immediately, while Maine's are postponed until 1996, and Colorado's aren't effective until 2002. Missouri's measure doesn't apply to federal office holders until one-half of the stales adopt term limits; Washington's is activated if 9 states limit federal terms. Length of limited service also varies widely. Who'. Right?

Supporters of term limits see them as just the right gadget for fixing a myriad of problems. Supporters promise more responsiveness, improved ethical conduct, fairer elections,

and Malcolm S. Forbes, Ir. of Forbes is even certain that "term limits would break the grip of lawyers.'" Arguments supporting term limits can be summarized as follows: For • 1. Term limits are a necessary "shock therapy" designed to dramatically shake things up and reduce government mismanagement. • 2. Term limits are needed to make elections more competitive. Incumbents have too many built-in advantages. o 3. Public service shouldn't be a career. We're be«er served by a steady influx of "citizen-legislators" who come from all walks of life. A related complaint is that legislators don't have to live under the laws they create. o 4. Non-professional legislators would be Ie•• concerned with popular approval and re-election concerns, and would be more likely to risk constituent disapproval and vote for what is really in the state's or nation's best interests. • 5. Term limits would sever the cozy relationships between legislators and lobbyists. o 6. Term limits would strengthen the executive branch and allow it to deal with wasteful spending and inefficiency. o 7. The President is already limited; we're just extending limits to the Legislative Branch. Against Opponents of term limits argue just as fervently. Thomas E. Cronin, a widely recognized authority on the American presidency and direct democracy, views them as "an illusionary quick-fix for a symptom rather than a cure... "8 The arguments opposing term limits would include: • 1. We already have term limits. Citizens who don't like their incumbents can vote them out of office. o 2. Term limits would restrict voter choices; they represent a basic violation of democracy's faith in the people.

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SPRING 1994

• 3. Term limits would have unintended consequences, including: a) an unhealthy shift of power from elected representatives to unelected lobbyists and staffers, and b) a reduction in representativeness since only the wealthy could afford to take a "sabbatical" in elected office. • 4. Campaign finance reform is a more effective and appropriate means of making elections more competitive. • 5. Term limits aren't selective; we'd lose our most capable elected officials. We value experience in every other human endeavor, and it doesn't make sense to deprive government of such an indispensable commodity. • 6. Lame ducks can't be effective, and with term limits, everyone would be a lame duck. Limited termers would be focused on building relationships to foster lucrative post-legislative careers. • 7. We should be cautious with proposals to tinker with the Constitution, especially one that would have dramatic impact on the balance of power between the executive and legislative branches. The matter of applying limits to federal office holders in some states and not in others is troublesome for both sides. Opponents of term limits claim it is unwise for a state to handicap itself by limiting its members of Congress, a body

where power and influence is in large part a function of seniority. Term limiteers don't refute the argument, but claim a state-by-state campaign was the only avenue available to them because of a Congress unwilling to refer a term limit amendment. Personal Conclusions The issue of term limits strikes me as more of a passion than an idea. It's a passion fueled by mistrust and disillusionment. As William Greider, author and former Assistant Managing Editor of The Washington Post, puts it, term limits are "a permanent declaration of distrust between the voters and their representati "es."9 There are well-founded concerns that incumbents have too many advantages in reelection campaigns and that money from special interests wields too much influence. Many suggest that drastic campaign finance reform would do far more good than term limits. I agree; but let's remember that Arkansas passed solid campaign finance/ethics legislation in 1988 and 1990, and as a state, we're farther along than most. We've reduced the maximum allowable campaign contribution, increased disclosure requirements, and greatly reduced an incumbent's ability to stockpile massive war chests with which to scare off challengers.

Our ethics/campaign finance statutes can use some fine·tuning (for example, eljrninating the conversion of campaign funds to personal use), but if we really want to make elections more competitive, we'll have to put spending limits (including restrictions on personal funds) and publicly financed campaigns in place, and I don't sense a ground swell of support for either. It should be obvious that there are vast differences in the structure and composition of the U.s. Congress vs. the Arkansas General Assembly. Serving in the U.S. Senate or House is a full-time endeavor; Arkansas Senate and House members are part-time, citizen legislators. Vet the Arkansas term limit statute would apply to both levels of government. Limiting the terms of part-time legislators just doesn't make sense. I'm now completing my second term. Through two regular sessions and two special sessions, I've accumulated 170 days of session experience. Yet, under Amendment 73, no House member's experience would exceed mine if I am elected to my third and final term. That's not much experience when you're trying to master a $2 billion enterprise. Tip O'Neill, the recently deceased Massachusetts Congressman and former Speaker of the House, recounts in his last book the myriad of crises faced by our nation in this century, including the Great

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SPRING 1994

Depression, two world wars, and the Cold War. As he puts iI, "We didn'l respond 10 all Ihese crises with young fledglings. When the storm blows, the new saplings blow away. It's the sturdy old oaks thaI ride it out. "10 We need "sturdy old oaks" as complex issues repealedly resurface for consider-alion. Their wisdom is essential as newcomers offer their inevitable blitz of well-intentioned, but halfbaked bills. I speak from personal experience, for a few of those bills had my name on them. Term limits tum out to be polilical snake oil. The idea is reminiscent of peddlers from an earlier era who bamboozled people by promising, for jusl pennies a day, instant relief from psoriasis, dandruff, toothaches and melancholia. We don't really believe in such mirades, but we're desperate for a cheap cure. These modem hustlers are orchestrating a hostile takeover - a grab for political power by forces weary of having their agenda rejected at the ballot box. They've convinced many that the best way to preserve democracy is to have less of it. They've done a masterful job of exploiting our affinity for quickfixes. But then, snake oU sales are always brisk for a lime, until consumers see though the deceit. And so it will be with term limits. When the

American people are engaged in a serious conversation about the pros and cons of term

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Editor's Note: At press time, the Arkansas Supreme Court has ruled to uphold the Term Limit Constitutional Amendment for State officials only. Federal offiCials are exempt from the amendment. The Court set the term limits to be retroactive to terms beginning in January

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lim Argue, Ir., is an Arkansas State Representative from District 55 in western Little Rock. He is also the Executive Director of United Methodist Foundation ofArkansas

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1. ArMIlS4S D<mocrat-Gllutte, July 31, 1993. 2. Arunsas Dnnocrtlt-Cautfr. January 9, 1994, page

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ARKANSAS LAWYER

SPRING 1994

EXECUTIVE

DIRECTOR'S

REPORT

One Client at a Time By William A. Martin

"One Client at a Time" is the American

Bar

Association's

prescription for improving the image of lawyers as well as the title of an excellent 23 minute video tape. Much of what is said on the tape is wisdom and information that deep down we already know, but from time to time it is necessary for someone to articulate a list of things we must fix. Almost daily we see the legal profession under attack in the news media. Politicians delight in beating up on us. Comedians' jokes about US seem more vicious. Surveys show

public distrust. Business people who have had contact with the judicial system have a lower opinion of us than citizens with no such experiences. While there are many segments of ociety whose antipathy or misconceptions we can do little to improve or correct, there is a pool we can influence - Ollr clients. An as a

journey of a thousand miles starts with a single step, we can and must start one client at a time. One of the terms today's management gurus are using is

"Total Quality Management" or TQM. While I do not care for that title, I am very impressed with the underlying concept that businesses need to find out what customers (or clients) really desire and then continually improve the processes by which we satisfy their wants. This type orientation can serve a law firm 52 ARKANSAS LAWYER

SPRING 1994

just as well as it can a manufacturing company. And we must remember, clients' perceptions of whether we provide quality service is based on their definition, not on ours. Many complaints to attorney disciplinary authorities are more in

the nature of consumer complaints than valid charges of violation of the Code of Professional Conduct, but our underlying acts and omi sions produce just as much client ill will and dissatisfaction as an ethical transgression may cause. We become so wrapped up in the steps involved in the legal process and so results-oriented that we tend to ignore that our clients come to us because they are in trouble and they need our empathy and concern as well as the use of our purely legal skills. Demonstrating we care may be just as important in getting them through a difficult situation as the outcome of our representation of them. How do we show a genuine concern? The tape expands on a number of ideas which I can only highlight. Lawyers often are not good communicators with clients.

must give the client our obvious undivided attention and become good listeners. Our words must be terms clients can understand rather than "legalese." Our demeanor must encourage our client to ask questions.

Office

procedures

must

examined and made client friendly. We are in a day of walk-in medical clinics. When I was in the Air Force I often felt the main goal in life of hospital personnel was to prevent the ill from seeing a physician. Do we let our quest for efficiency cause such attitudes to be communicated by the words and actions of our support staff? Our bills need to be a report to clients on what we have done for them. Most legal work is not done within the view of the client. Frequent communications which tell them we are working on their problem and making progress helps reassure them we care. These activities can help demystify the legal system and reduce the likelihood of fee disputes. Along with the tape the American Bar has produced a "Declaration of Commitment to Clients" which can serve as a checklist for lawyers and the support staff and be a written means of telling clients, "We care." A copy is on the next page. We have the American Bar tape available to loan to lawyers to show to their office staff or to their local bar association. It can help us get started on the road to making meaningful changes in our relationship with clients and produce satisfied clients one client at a time which will eventually improve the public perception of what lawyers do and how we are helpful.

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SPRING 1994

By Edward Poll Publisher: General Practice Section American Bar Association Reviewed by Dale Ellis, Houston, Texas If you don't know where you're going, you might wind up someplace else. ·Yogi Berra An American Bar Association poll in 1993 found an ever-widening breach between lawyers and the public. We call OUf profession an honored profession yet OUf product is not often viewed as professional by the public perspective. Most of us a.re very good lawyers. We're just very bad business men and women. We were educated in substantive law areas and never told of the business component that we would face. We never learned that law practice is a business. A good law practice is also a well-run business. This book addresses this gap in our education. Its premise is that we must see a successful law practice as one operated with effective and efficient business practices. The dichotomy of law /business

puts us in two different realities. We have to know substantive law and simultaneously run our business profitably to survive in a highly complex and sophisticated world. The bottom line of any successful business is PROFIT. This book teaches you how to create a business plan, set and reach achievable goals for each lawyer in your firm, create a plan that will serve your needs over time, how to create bills that get paid, how to get loans, and how to systematically create collection practices that yield results. Cash flow projection forms are included in the book for your use. Additionally, a form for analyzing monthly accounts receivable and a payment pattern analysis format is available for you to design your own office system. This book has a software package that wi1l enable you to craft your own unique forms that will contribute to your practice development and growth. This book challenges you to answer these questions: • Do you have a business plan? • Do you have an effective marketing program in operation? • Do you have a sound financial plan that will sustain your practice? • Does your firm, regardless of its size, have GOALS to shoot for? • Would you like to make more money? • Would you like to keep more money? If you answered yes to any of these stimulating questions, then you must read this book! Practical tools such as questionnaires and action plans guide you

to create a simple, yet workable business plan. The book is written in simple, understandable language that will not baffle you with its jargon. The author is an experienced lawyer, former manager of a successful law practice, and a leading law practice management consultant. He demonstrates to each of us in this book why we must live in the real world of practical business principles applied to substantive law practice. The book's approach vastly expands our capacity to be better businessmen and women. I relished reading this book. You owe it to yourself, your clients and your future to purchase this book, read it, and pass it on to everyone in your firm. "The Business of Law" is an indispensable ally to the legal profession. Its philosophy should be implemented in every law school and each state's CLE program.

The Elements of Legdl Style By Bryan A. Garner (Oxford University Press-1991. $22.00) Reviewed by Suzanne Antley "The only tool of the lawyer is words.... Whether we are trying a case, writing a brief, drafting a contract, or negotiating with an adversary, words are the only thing we have to work with." (Charles Alan Wright of The University of Texas Law School, introducing Bryan Garner's book.) All lawyers - regardless of the type of law that hey practice - can benefit by

ARKANSAS LAWYER

SPRING 1994

adding The Elements of Legal Style by Bryan A. Garner to their personal libraries. Inspired by the classic The Elements of Style by Strunk and White, Garner's book goes beyond the scope of Strunk and White, addressing the particular problems that characterize legal writing (and other legal language usage). Garner begins with the premise that, despite lawyers' specialized challenges with language usage, "Legal writers must recognize what other inhabitants of the literary world already know: A good style powerfully improves substance. Indeed, it largely is substance." The book (like Strun.k and White) therefore focuses on style - on providing guidance in situations where there is a choice of how to communicate the idea, rather than on situations governed by explicit rules of grammar and usage. But the emphasis (unlike that of Strunk and White) is on style in the lawyer's context. Garner, who has taught legal writing at the law schools of The University of Texas and SMU, illustrates his points using humor, and drawing on the writings of some of the most eminent legal writers in legal history, such as Oliver Wendell Holmes. Clarence Darrow, William Prosser, and Laurence Tribe. The book includes explanations and examples of choices that arise with punctuation, word choice, grammar, figures of speech, and syntax. ParticuJarly helpful are the examples of what not to do and a glossary of misused words and phrases. "Legal writing should not be lethal reading." (Garner, concluding the introduction to his book.) As to why lawyers should care about their readers, Garner says: "The answer lies in resuJts, in success: Holmes did it, Cardozo did it; Jackson and Hand did it; so did Prosser and Rodell. If, as an advocate, you do it, you may make your opponent's reading easier; but you also upset your opponent because you thereby reduce the judge's work and increase your likelihood of winning. If you do it as a judge, you add distinction to the judiciary as well as to your opinions, which will fare better in the esteem of your fellow lawyers; you will have stated the law better for the present and the future. Whenever you do it, in whatever capacity, you add luster to the letter of the law." Get THE ELEMENTS OF LEGAL STYLE by Bryan A. Garner.

56 ARKANSAS LAWYER

SPRING 1994

Hitler's Justice: The Courts ofthe Third Reich By Ingo Muller, translated by Deborah Lucas Schneider Harvard University Press, 1991 Reviewed by Mike Everett Has any lawyer read The Rise and Fall of the Third Reich without wondering, "What were the lawyers and judges doing during Hitler's time?" lngo Muller, a German law professor, gives us the sad answer. His book is a best-seller in Germany. His is "a depressing tale, one that reminds us how fragile the safeguards of a civilized society can be in the face of the powers of darkness." The German judiciary had felt the burden of state oppression for more than a hundred years before Hitler's time. In the German Empire, founded in 1871, judges were selected by the state from men of wealth, social standing, and political connections. The Weimar Republic that followed WWI, brief and turbulent as it was, did not change that. Thus Hitler's jurists were predisposed to buy into the Nazi propaganda that, "We, as human beings, are clearly superior to them," - "them" being mostly Jews and Communists, but in fact being anyone who was not a National Socialist. As Hitler's ational Socialist Party rose from a group of fanatics to one of the most successful organization of murderers in history, the judicial elite rose with it. Indeed, the Nazis could not have risen without its active, aggressive support. Muller's analysis of the judiciary's role in the madness is compelling to the lawyer-reader, particularly from two perspectives. First, his documentation of the facts of the individual cases place a human face on the tragedy. The slaughter of six million Jews somehow doesn't touch us like the detailed story of one 27 year old engineer student prosecuted under the Blood Protection Act of 1935. When he applied for work with an arms manufacturer, his employer's check into proof of his "Aryan descent" showed that his Hungarian grandparents were listed as "Israelites." Further investigation revealed several sexual affairs with German women. Although he had no previous criminal record, these affairs, together with his Jewish ancestry, though he did not practice the Jewish religion, made him an "habitual criminal," for which he paid with his life.

Less touching, though more professionally compelling because of analogy to our own system, is Muller's accounts of the Reich's Courts' reasoning in those cases. A generalization: Court dockets became more and more backlogged, prisons overflowed, and the number and severity of criminal statutes increased (sound familiar?). Yet German courts allowed and encouraged vagueness in the criminal laws so that interpretation was increasingly left to political whim. The courts expanded discretion in the police and military to charge and incarcerate persons without any due process protections. In Muller's reports of the Courts' decisions, the American lawyer finds language with which he is disturbingly familiar. Law schools are also inculpated, both in terms of the philosophical foundations of Nazi jurisprudence provided by scholar-professors and because of educational policies which allowed admission and advancement only to the most compliant and well-connected students. More frightening to the legal thinker is Muller's account of the events immediately after the war, frightening because it continued during supposed democratic rule. After a brief interlude during which the courts were run by occupational forces, a time including the uremberg Trials, justice was administered again by the same men who followed Hitler to power. Compensation to victims and punishment of war criminals, matters which continued for almost forty years after the war, were handled, astonishingly, by jurists who were self proclaimed Nazis. These postwar courts did not participate in butchery as did their predecessors. Yet their decisions by which they absolved war criminals and refused compensation to victims were no less illogical and dogmatic. To compare present events with Nazi Germany has become an alarmist's cliche-the comparison is made too often and under circumstances too broad to be meaningful. Yet the devolution of that comparison into cliche obscures the reason why we study azi Germany. We study it for the same reason we study tornadoes, not because one is imminent, but because we want to know the warn.ing signs. Reading Muller's book, an American lawyer cannot escape the question, "Could it happen to us?" The answer, of course, is a resolUlding "No." After all, "We, as (lawyers), are clearly superior to them."

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LAW

PRACTICE

MANAGEMENT

Special Column:

Hiring Guidelines from the Committee on Opportunities for Women & Minorities in the Legal Profession By Rachel Kearney Many lawyers have given up any attempt to learn to interview. After reading Jane Cooperman's article "Right Questions, Wrong Questions," (National Law Journal, July II, 1989), Marshall H. Tanick of Minneapolis added his own directives, including: Don't look at the applicant; don't listen to the applicant; don't speak to the applicant; don't ask their name; don't inquire about their schooling; don't ask about grades. Griffin Smith of Little Rock was moved to respond: "IWle have concluded that an applicant may be requested to give only name, rank and serial number" National Law jOllnlal, 10/16/89, p.12. Responses Like this indicate the level of frustration felt by interviewers, but it is surprising to hear these comments from lawyers. Lawyers know that the form of the question is important, and have learned in other contexts how to artfully draft questions to satisfy legal requirements and accomplish practical objectives. The same professional approach is required in interviewing. Difficult Questions The first step in dealing with job applicants is to talk to them as people, as if each individual before you is different and unusual and full of the dignity, special talents and common human failings and anxieties that plague and enrich us all. Avoid questions or statements which imply that every lawyer should be the same, especially if the implication is that the one you're speaking to is lacking some essential lawyer-like quality. A female lawyer reported: "As a law student and a yOlU1g lawyer, I quickly tired of the statement 'you sure don't look like a lawyer.' No matter how hard I worked nor how capable I was, many people would never view me as a lawyer because I would 58 ARKANSAS LAWYER

SPRING 1994

never be a man." When preparing questions for the interview, be sensitive to both the legality and the impact on the applicant of some routinely asked questions. Stop and think before using the following categories of questions: AGE: How old are you? When did you graduate from high school? How would someone like you fit in with younger people? I f your concern is whether an applicant can make a long-term commitment to the job, ask that question. The discriminatory question presumes that a younger person with a working life expectation of 40 years will devote all 40 years to one firm. ARREST: Have you ever been arrested? No questions relating to arrest are lawful. CO VICTlON: Have you ever been convicted of a felony? A misdemeanor/? Inquiries about actual convictions that reasonably relate to the applicant's ability to practice law are allowable. DISABILITIES: Do you always use crutches? How long have you been in a wheelchair? How does somebody like you get in and out of airports? 00 not ask about disabilities or medical histories. These subjects should only be discussed if the applicant chooses to do so. Do discuss the requirements of the job. MARITAL/FAMILY STATUS: Are you married? single? divorced? dating anyone? 00 you have/plan to have children? How does your husband feel about leaving his job and moving to a new city? Are you going to move if your husband/wife gets another job? If you want to know if this person is committed to his/her career, ask questions that will reveal the strength of commitment. Identify the work schedule and travel obligations. Ask if those obligations will present a problem. If you routinely ask

questions in this category, make sure that you ask the same questions of all applicants. AME: Is that your maiden name? Isn't "Pinto" Italian? Do not use questions relating to names to try to get information about marital status or national origin. You may ask if the applicant has ever worked under another name, or if his/her references would know him/her under another name. You will want to know if the applicant is legally eligible to work in the United States. You may ask about foreign language fluency if it is relevant to the job. NATIO AL ORIGIN: Is English your native language? How long have you Lived in America? - Questions relating to lineage, ancestry, descent, mother tongue, birthplace, citizenship, including national origin of pause or parents, are prohibited. What employers may ask are questions relating to the applicant's eligibility to work in the United States, and questions relating to foreign language fluency, if such fluency is job related. ORGANlZATIONS: Do you belong to the Country Club? The Knights of Columbus? The DAR? The American Bar Association? The Book-Of-The-Month Club? Toastmasters? Do not ask these questions in an attempt to determine the race, national origin, religion, or other inherent characteristics of the applicant. Questions about membership in a country club, Knights of Columbus or DAR would be suspect, since membership could reveal race, religion or family heritage. Questions about membership in the Book-of- the-Month Club or Toastmasters would only reveal interest in reading or public speaking and would not be objectionable.

RACE/COLOR: Are yOll a egro? Are a member of BALSA? Did you get into law school under an affirmative action program? No questions relating to race or color are lawful. RELIGION: Are you Jewish? Do yOll celebrate Christmas? Will you be able to work during Ramadan? No questions relating to religion are lawful. As an employer, you will probably have to yOll

make reasonable accommodations for the

employee's religious beliefs, but it is up to the applicant to raise the issue of accommodation. SEXUAL ORIENTATION: Are yOll Il'ulrried? What does one earring mean? Do you usually wear make-up/jewelry? How has the AIDS epidemic affected yOll? It is difficult to imagine an area more intensely personal and less job-related than one's sexuality. Avoid the above questions, and those that presume applicants are heterosexual and married with children, or that they should be. WORK EXPERrENCE: Is this your first white-collar job? Aren't all your people machinists? Sometimes questions about work experience are directed at members of a protected class and based on generalizations about the class. If your questions relate to the applicant's previous work experience and are job related, they are acceptable. How can you avoid liability and improve the effectiveness of your

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interviews? Ask only job-related questions. Why are some questions illegal or offensive? Because they are personal, not job related, and have historically been used to discriminate against certain groups of people. In other contexts, people feel free to refuse to anSwer personal questions about their sexuality, children or religious preferences. In job interviews, they do not. How do you know if your question is job related? If you have to make presumptions based on the answers, the question is probably not job related. For example, a job-related question would be: "Are you willing and able to travel 50 of the time?", a question appropriate to ask of all applicants. A non-job-related question, perhaps directed only to women, would be: "Do you have children?", with the presumption that if the applicant does have chiJdren that she is unable or unwilling to travel. If the question is really job related, you should be asking it of everyone. If yOll are not asking it of everyone, it probably is not job related. If your argument in favor of asking the question is that you are just making pleasant conversation, putting the applicant at ease, or trying to get to know the applicant as a whole person, remember that the applicant presumes, probably correctly, that you consider every question and every response important in making a hiring decision. Often interviewers ask offensive questions because they have not prepared

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good questions that will explore the applicant's prior work experience, communication skills, initiative, in terpersona I ski lis, flexibi Iity, organizational skills, problem-solving abilities, decision-making ability, maturity, reasoning, judgment, assertiveness, creativity, and enthusiasm. Good lawyers would not conduct a business negotiation or a crossexamination without adequate preparation. The hiring of a new associate or partner is of greater long-term importance than one trial or one negotiation and deserves careful preparation. The Wall Street Journal has reported an increase in litigation over discriminatory interviewing tactics. Although the risk of being sued is slight, you run the risk of offending candidates and embarrassing yourself and your organization if you indulge in inappropriate questions. Most applicants will not respond to inappropriate questions with litigation, but good candidates always have choices, and if you offend them, they will not choose you. BlIl if yOll aren't Sllre that yOll wanted that diversity so close to you anyway, isn't that good? Aren't you getting what you want without having to be obvious about your discriminatory intent? No, that result is not good, because in every community, lawyers are leaders. If we, as a profession, do not uphold both the letter and the spirit of the laws against discrimination, we violate the oaths we took when we joined this community of lawyers. Worse, we encourage others to follow our bad example. Probing Questions

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If we remove from our repertoire questions which might cause offense or run afoul of the law, what shall we ask? In fact, losing some of the objectionable questions will allow us as interviewers to make better use of the limited time we have with applicants. Instead of relying on not-very-useful questions, we can develop questions that will allow applicants to tell ue; who they are and what they can do. Consider the following questions: Describe the responsibilities of your last (or summer) job. Which part of that job did you like most? Least? Why? Did that employer offer you a permanent job? Lf so, why are you looking for a different job? If not, why not? Which of your accomplishments are you most proud of? Why? If you could have any job in the world, what would it be? Describe an incident where you had to persuade someone to do something your way. How did you accomplish it? Why did you go to law school? What keeps you in school? What has been your biggest challenge? Ln your previous job, what did you do differently from your predecessor? W ha t do you want your life to be like? Where do you see yourself in five

years? What do you want to accomplish before you die? Describe an experience you've had dealing with an obnoxious or irate client, cu tamer or coUeague. Describe a group project or other group endeavor that you've participated in. How did you work within the group? How have you managed the heavy and conflicting demands of work school. and life? Describe a situation at work or at school where, midway through a project or class, the rules changed. How did you handle it? How did you handle crises at work or at school that necessitated putting other work aside? How do you set priorities at work/school? In life? Tell me about a problem you had in your last job and how you solved it. How would you handle the problem differently today? How do you handle pressure and stress? What is the most stressful situation you've had recently? If you were passed over for partner, what would you do? What was one of the biggest mistakes you've made recently? How did you

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1 The author is indebted to Susan Randall, Ph.D. for many of the examples set forth in these guidelines. Dr. Randall presents seminars to employers on interviewing successfully and legally.

Editor's Note: The Committee 011 Opporttmities for Womeu & Miuorities ill the Legal Professioll urges you to keep litis special colum" and refer back to if while goillg through tlte hiring process.

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correct it? How do you arrive at decisions? After you're given a work assignment, how do you ensure that you'll be successful? What do you do when you don't know what to do? Tell me about a time when you were treated unfairly. What did you do about it? How do you handle it when there are too many projects and too little time? Describe a work project that you weren't able to complete. What do you do to renew and reenergize yourself? To relax? The advantages to using the above list to the exclusion of suspect questions are that these questions will allow-an applicant to demonstrate his or her commitment to the practice of law, jobrelated experience, maturity, judgment and other lawyering skiUs. And isn't this the kind of information you really want to have when it's time to hire a new colleague?

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LAW,

LITERATURE

LAUGHTER

From the Bobbitts to Kama: All the News that's Fit to Print By Victor A. Fleming

Following the su.rprise announcement in last quarter's column, the condolence letters are pouring in like the faucet that wakes you up in the night: drip ...drip ... drip. Thus, with no fond memories to share from readers, we will commentate on legal news that's been fit to report this year. Jury Cuts Bobbitt Slack Lorena Bobbitt, like her husband before her, was acquitted of all charges stemming from the incident in which she severed his penis, drove off in the family car, and flung it into a vacant lot. Temporary insanity, said the jury. Who could argue? But is this the start of a trend? Medical researchers are worried this case may lead to a new psychological menace. Tentatively, it is being called SDFD (for Slice, Drive & Fling Disorder). The healthcare industry is investigating ways in which to implpment preventive measures (including metallic batteryoperated pajama pants), as well as appropriate insurance coverage for the injuries, follow-up surgery, and risks associated therewith. The women in Lorena's native country of Ecuador have cancelled their announced crusade by which hundreds of men were to be castrated if Lorena were sent to the penitentiary. Lorena is reported to be making a deal with the Adolph Coors Co. to endorse their nonalcoholic beverage, Coors Cutter. Jackson Case Laid to Rest Michael Jackson settled his civi.l child molestation case out of court. Reportedly, a former housekeeper had come forward with reports of Michael and young male teenagers romping naked 1 about Michael's humble abode. The teenager in question, irrespective of ,路"hat happened to him at the hands of Michael,

62 ARKANSAS LAWYER

SPRING 1994

is said to have received a settlement worth $10,000,000. The question now seems to be whether the civil settlement will preclude a criminal indictment. Can you imagine Michael Jackson (or anyone, for that matter) forking over ten double M' s with a hint of a possibility that the recipient thereof might testify against him in a subsequent criminal proceeding? Synchronized Juries Mistry Menendez Cases In the Menendez synchronized juries trial, both panels got irreconcilably hung, resulting in mistrials for both defendants. These are the male siblings 2 who are alleged to have murdered their parents after years of taking abuse from them, for purposes of receiving their due inheritance. The trial went on for weeks. Deliberations went on for days. You gotta wonder how long it will be before you hear a kid S<lY, "When I grow up I want to be a juror." I was unable to confirm rumors that the Olympic Committee is considering "synchronized jury trials" as an exhibition event for the 1996 Summer Games. Day of Dolphin Denied in Court And, last but not least, as reported by the Harvard Law RECORD (and sent to me by David Solomon of Helena), federal jurisprudence emanating from Massachusetts is to the effect that dolphins may not sue for gender bias. Kama, a male dolphin, formerly of the New England Aquarium, was traded to the Naval Oceans Systems Center in Hawaii for a female dolphin for "gender blending" purposes.3 Kama was actually a co-plaintiff, along with some animal rights groups, in a suit that alleged Kama's transfer was an illegal "taking" not allowed by the statutory permits

under which he had been taken from the wild in the first place. Apparently (and ironically), in New England, Kama was free as a bird within the confines of a large oceanarium. In Hawaii, however, he was confined to a floating cage in the ocean-a bit more pent up-in which he was subject to "non-invasive sonar and hearing tests." A federal judge said Kama was all wet and could not be named as a plaintiff. I am uninformed as to whether Kama will test the waters of a federal court of appeals. If Michael Jordan Can Do It... This is LLL's penultimate installment. The summer '94 issue of this magazine will feature its swan song, as it signs off after exactly one more year of playing time than the Bulls' star player. Maybe he needs a golf partner.

漏 1994 by Vic Fleming

"Naked" is chosen here over "nekkid" to give Michael the benefit of the doubt. As Lewis Grizzard has commented on the distinction in meaning between these two somewhat similar words, Naked means you ain't got not clothes on" and "nekkid means you ain't got not clothes on and you're up to something." 2 An overabundance of caution, in the political correctness arena, impels me not to use the word "brothers" in this context. Kama, a male dolphin, formerly of the New England Aquarium, was traded to the Naval Oceans Systems Center in Hawaii for a female dolphin for "gender blending" purposes. 3 No, the female was not transported across state lines for immoral porpoises.

LAW

OFFICE

TECHNOLOGY

COLUMN

Comparing CD Research Products for Law Firms By Stan Rauls

For those of us who attended law school in the pre-computer era, adapting to electronic legal research has been painful. It would be easy to blame the early versions of on-line services which charged exorbitant rates for access to databases that could be effectively used only by attorneys who were also parttime engineers or rocket scientists. If the truth were told, however, many of us could be criticized for our reluctance to abandon those methods we were taught in favor of electronic search techniques which seemed, on occasion, downright unlawyerly. Though books may always be a lawyer's first lovc, the future of the "printed word" is in serious jeopardy. Computer research has come a long way in a relatively short period of time. On-line services (e.g. WESTLAW and LEXIS) still have large followings because of the wide variety of information available. However, many attorneys do not have a regular need for access to a multitude of databases and prefer not to subscribe to on-line services. Still other lawyers prefer to have their own resource materials inhouse for ease of access without reference to time charges typically imposed for on-line research. That segment of the market must be substantial because the focus of research material seems now to be directed to the CD-ROM (Compact Disk Read Only Memory). For anyone not familiar with the compact disk, it is a thin circular piece of plastic, four and one half inches in diameter which can store massive amounts of information. CaseBase is a product (one disk) which currently contains the Arkansas Reports, Arkansas Code (not including annotations), ]993

Acts of Arkansas, Court Rules and ethical opinions. West, too, has put its Southwest Reporter (Arkansas cases) on a single CD for sale to attorneys. To meet the growing demand for electronic data, West put the United States Code Annotated on two disks, and Lawyers Cooperative Publishing recently countered with the United States Code Service on a single CD. This article will briefly discuss these four products. Before looking at them individually, it electronic research products. few points common to all CD or or electronic research products. Competing products have both advantages and disadvantages this is attributable to the underlying material (Official versus unofficial reporters and U5CA compared with U5CS) as well as to the differences in the software employed. Those lawyers who preferred one source to the other should keep in mind that the underlying material will be the same even though its appearance on a computer screen may differ from the printed version. Personally, I have found that my preferences have changed more because of the software than the informational data. What was easier for me to find manually using one source is now more difficult or time consuming because of a personal preference for the programs used by the competitor. Advantages common to all CD products currently on the market include their speed (in comparison to manual research), accuracy of search (depending on the information requested), price (in relation to purchasing the printed volumes), upkeep (new disks are supplemented thereby eliminating the need to file or lise pocket parts), size (an entire library will fit in a desk

drawer), lack of "pocket parts" (all information on the disk is searched simultaneously) and convenience (excerpts may be transferred to word processing programs eliminating errors and increasing efficiency; with the right equipment, one may have remote access to the information or put an entire library in a briefcase for home or travel). Typical disadvantages of computer research include "tunnel vision" (a detriment to those of us who usually find the right thing looking in the wrong place), lack of ownership (the data is licensed, not owned), prestige (most clients are impressed by books rather than computers), computer requirements (one must have a computer and some degree of expertise), appearance (the information Jooks different from the printed version), printing (one cannot photocopy a case or statute - it must be printed) and access (for those who like to take a book to court). In adapting to computer research, the lawyer should not be confined to research techniques formerly used in reading books. With any service, one can find a case or statute "the old way:' but the advantage of the computer is that it can search volumes of data with lightning speed in search of single or multiple words, phrases or numbers. It will take time to gain fuJI advantage of this speed because \-"hat you ask is what you gel. A search using an incorrect cite, misspelled name or synonym will not produce a satisfactory result. Conversely, a query using common words or too broad a field will produce a mound of inappropriate data which is time consuming to read. Each product has its own "tricks" which any purchaser should study carefully to get the full benefit.

ARKANSAS LAWYER

SPRING 1994

Each CD may be researched in a variety of fashions, and there are many features of the programs which are not covered here. This should be considered a brief overview of the products discussed, and additional in.formation for anyone or all may be obtained by contacting the companies' sales representatives. One technical point is appropriate here. CD's typically operate from programs installed on fixed drives. The speed of legal research can be increased for many CD's if an electronic or virtual drive is employed. If the computer has sufficient RAM (Random Access Memory), most IBM compatible computers can be configured to use a portion of the RAM to act as if it were a disk drive. This requires RAM sufficient in size to hold the programs operating the CD and any research projects to be saved. The programs operate much faster because the electronic drive does not use mechanical parts required for fixed drives, and this can mean a substantial increase in legal research speed because of the quicker response time of the computer. Care should be taken to configure the computer in such a fashion as to effectively lise RAM without affecting its lise for other programs. It is also extremely important to ensure that research is saved (or copied) to a fixed drive or permanent storage before tu.rning off power to the computer or clearing RAM. The contents of an electronic drive will be lost when the computer is turned off, rebooted or if memory is cleared through the use of another program. CASEBASE (1st qtr., 1994): CaseBase (Arkansas) contains the Supreme Court opinions (12/8/24 forward), Court of Appeals published opinions (beginning 10/31/79), Arkansas Code (not including annotations), 1993 Acts of Arkansas, court rules and ethical advisory opinions. The court opinions are all contained within a single database and are searched simultaneously. The Code, Acts, rules and ethical advisory opinions are separate databases and must be used independently of each other as well as the cases, i.e., one cannot simultaneously search the Code and the cases. The search method likely to be the most commonly used is the global search. This permits the user to search a particular database for particular words (or portions thereof), phrases, numbers or identifying characteristics. The charts below list the categories within which each database may be searched. The GLOBAL INDEX permits research of an entire database for the information desired. 64 ARKANSAS LAWYER

SPRING 1994

CASES Plaintiff & Defendant Names Official (Arkansas) Citation Appellate Docket umber Parallel (S.W.2d) Citation Appellate Court Year of Opinion Case Topics (Headnotes) judge & Court Appealed Attorneys on Appeal Majority Opinion Justice Majority Opinion Text Dissents: judge/Opinions Supplemental Opinions Supplemental Dissent Opinions GLOBAL I DEX 1993 ACTS TABLEOFCO TENTS Act Number/Year Entire Act Text Date Act Signed GLOBAL INDEX

CODE TABLE OF CO TENTS Constitution of Arkansas Constitution of United States A.CA. Code umber/Heading A.CA. Code Text A.CA. History/Acts A.CA. Cross-Ref. Ark.5'a'. GLOBAL INDEX

ETH1CS TABLE OF CONTENTS Advisory Opinion Number Date Released Advisory Opinion Text GLOBAL INDEX

Advantages of CaseBase include its use of the official reporter and inclusion of the Arkansas Code and court rules. For common word searches, lists of choices sometimes appear or "pop-up" to help narrow the search. The program lIses a small search field in the global mode and permits the user to combine searches to finalize the research. This seems cumbersome at first but speeds initial searches and lowers the learning curve. Also, the program employs "pull down" windows which greatly assist the researcher in using the program. Although the inclusion of the Arkansas Code is a great advantage, reading the Code with a computer can blind the user to the significance of particular statutes. For example, a word search may produce both criminal and civil la\vs. It is easy to overlook the context when the computer groups statutes by common terms - one is not pulling out one particular volume but, rather, is searching the entire code (unless the search is narrowed). The annotations from the printed volumes are not needed since the entire cases are on the CD and may be searched in any manner desired. Still, those who like to scan annotations will miss not having

RULES TABLE OF CONTENTS Rules of Criminal Procedure Rules of Civil Procedure Rules of Evidence Rules of Appellate Procedure Rules of Supreme Court Rules for Inferior Courts Rules for CL.E. Rules of Professional Conduct Model Rules of Conduct Unauthorized Practice of Law Code of judicial Conduct U.S. District Court Rules Local U.S. Bkrptcy Crt Rules Court of Appeals (8th Cir) Admission to the Bar Cert. of Court Reporters GLOBAL INDEX

them readily available. Saving research can be cumbersome because the current version sends material saved in the global search mode to prenamed files. This precludes a researcher from sending information to particular computer files (e.g. by client or topic) for storage or later use. CASE BASE requires periodic maintenance using DOS (Data Operating System) commands to clean up the prenamed files (otherwise, the user will be required to wade through prior research or the research of others when reviewing saved material). WEST'S CD-ROM (593): West includes volume 180 of the Southwest Reporter (2d series) forward on a single compact disk. The program uses software which, to a limited degree, links other products (e.g. U5CA). Instead of using "pull-down" windows, researchers use WESTLAW type language (not WIN) or codes to narrow or define a search. Global searches are available, and a large field allows a user to complete the research without combining sets as with CaseBase. The product includes a notebook or word processor for saving and editing research. The user may search the entire

---~i-~

database for topics, words (or portions), phrases, numbers or identifying characteristics. The chart below lists the categories and symbols for searching the

cumbersome to use in relation to most popular word processing packages. UsCA (6/93): The United States Code Annotated is

with a lower learning curve can help a computer novice get off to a faster start and hopefully avoid reversion to the books because of frustration. However,

FIELDS

CONTEXT A D PROXIMITY

BOOLEA ,OTHER SYMBOLS BOOLEAN:AND,OR,NOT

CITATIO TEXT TITLE SYNOPSIS TOPIC HEAD OTE DIGEST CO RT DATE

Within: Slash (/) /n in 'n' words of /s in same sentence /p in same paragraph

& both terms in doc space - either term Â°/0 term not in doc

Precedes: Plus (+) +n precedes by 'n' words +s precedes in sentence +p precedes in paragraph

JUDGE ATTORNEY database. Symbols are added to words to expand or narrow a search. Advantages of West's CD product include its incorporation of key numbers and the West annotations many of us learned to value in doing research. The addition of an internal word processor makes the transfer of excerpts from cases to memorandum or brief much easier. Research may be aved to computer files given individual names by the user, making storage and subsequent use more convenient. Once a group of cases has been obtained, the program has an additional scanning feature to permit a computer search of only those cases found (using different criteria) without the need to create and combine a new set of cases as with CaseBase. The software will automatically prompt a user to ask if the research is to be saved to permanent storage, and this reduces the likelihood that hours of research will be lost through inadvertence. When exiting the research project, the user is advised of the actual time spent on the computer, making billing more convenient (and sometimes depressing for a novice user). The printed version of the advance sheets is included with the purchase of the CD product and support. West anticipates that future updates will incorporate the Arkansas Code, a major drawback in comparing products. Hopefully, this will include the court rules and any legislative acts not then incorporated into the code. For initial searches, the computer time is slightly longer than when using CaseBase, but the difference is often compensated by eliminating the need to combine sets as with CaseBase. The notebook, or internal word processor, is a great help in excerpting research and making notes/observations, but it is 66 ARKANSAS LAWYER

SPRING 1994

available on two compact disks (titles 126 on one and 27-50 on the other) in a computer format identical to that for West's Arkansas cases. The product has the same notebook or word processor for saving and editing research. The CD's also include the various federal and circuit rules. USCS (12193): The United States Code Service is marketed on one CD using a format which differs from that employed by CaseBase. The software is the same a that used by Research Institute of America (RIA) for its Federal Tax Coordinator 2d and is a relatively easy and fast program to learn and use. Future updates are expected to include court rules (not currentlv included). Each product has features which are better demonstrated than described in a publication - different lawyers are likely to prefer differing products. Prcsum<lbly, the law has been taken from the same sources, but finding it through the computer is easier with software to which one adapts more readily. As with the printed versions of USCA and USCS for example, one will make a more thorough search using both competing products or be helped by a particular annotation which the other service omitted or worded differently. Most la""yers, however, will likely start or stay with only one version. For that reason, a major factor in any decision of what to buy should be the purchasing lawyer's preference between the actual data (the reporter) sold by the competing services. Even though the software may seem more cumbersome (and users will likely differ in their opinions), a researcher can eventually adapt to using just about nny program. A program

Symbols # no equivalent terms â&#x20AC;˘ single-char subs ! multi-char sub/expand "" phrase delimiter if a lawyer has a distinct preference for one service, the additional time required to adapt may prove beneficial in the long run. Lawyers should review each product carefully and choose the one whkh best fits their need or preference. For the most part, there are no wrong decisions.

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