VOL.34_NO.2_SPRING 1999 by Arkansas Bar Association

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VOLUME 34, NUMBER 2 PUB LlSHER Aransas &lr Associatioll Phone, (SOl) 375-4W6 Fax: (501) 3754901 Homepage: www.arkbar.com E-Mail: cunderwood@arkbar.com

on en s

EDITOR Gllhy Undnwood

Featmtes

ASSOCIATE EDITOR. GRAPHIC DESIGN $Qm LAndis

EDITORIAL BOARD David H. Williams, Chair Wiley A. Branton lbomas M. Carpenter Morton Cilelman James C. Graves Jacqueline J. Johnston 1llomas H. McGowan AI Schay Jacqueline S. Wright

OFFICERS President Robert M. Ccilltley, Jr. President-Elect Louis 8. Jones, Jr. Immediate Past President

Jack A. McNulty Secretary -Treasurer H. Murray Claycomb Executive Council Chair

On the Cover. Photograph by Dixie Knight Photography.

Philip E. Kaplan Young Lawyers' Section Chair Gwendolyn O. Hodge Executive Director

Disabiliey, DRC and the Law by Donna Pet"',

Promoting Client Self Advocacy by Jan Baket

Don Hollingsworth Associate Executive Director Judith Cr;lY

The "MoS[ Imergrarcd Setting" Regulation of [he

Americans wirh Disabiliries Acr by j. William Cain, Jr.

EXEClITJVE COUNOL J. Ray Baxter William M. Clark. Jr. F. lbomas Curry Thomas A. Daily Thomas F. Donaldson. Jr. Lynn Manning Flynn Ron D. Harrison Dave Wisdom Harrod

From the Consumer's Viewpoint: Have Attorneys Aided in Compliance with the Americans with Disabilities Act?

by Dani<lk Strickman

Knox 8. Kinney

by Ranko Shiraki OliVet

Charles C. Owen Brian H. Ratcliff

EXEamVE COUNCIL LIAISON MEMBERS

PRESIDENT'S REPORT,

by Robert M. Cearley, Jr. by Don Hollingsworth

EXECLITIVE DIRECTOR'S REPORT,

LElTER TO THE EDITOR

4 4

ARKANSAS BAR ASSOCIATION

EW ADMllTEES

M EMBER BENEFITS

"""'.....

In This Issue

Steven T. Shults James D. Sprott

1Jw ArbllSlU Unuytr (USPS 546-040) is pubIishrd quartt'rly by the Arbns<ls Bar Association. Periodicals postage paid al UtUe Rock. Arkansas. POSTMASTER; send address changes to The ArkllllSll5 uwyn,4OO West Markham,. Uttle Rock. Arkansas 72201. Subscription p~ to non-members of the ArkansM Bar Association $25.00 per year. AnyopinIon expressed herein is th.l! of the author, and not ncteSSariIy that of the Arkansas Bar AssodlItion or 11111 ArkllnSM ',"wyer. Contributions to n,e ArkanslIs LAwyer are weirome rond should be senl in two copies to EDITOR. The ArkllllSllslAwyn, 400 West Markham, Uttle Rock. Arkansas 72201. All inquiries regarding advt'l1ising should be sent to Editor, The Arbll,lIs UrU>yl1r at the above address. Copyright 1999, Arkansas Bar Asaodation. All rights

Overview of Federal Laws Protecting Students With Disabilides in Colleges and Universities

Thomas D. Ledbetter Michael W. l\.1.itchell

Judge Bentley F. Story Harry Truman Moore Carolyn B. Witherspoon Alice Holcomb

ON ApPEAL

24 29

JUDICIAL DISCIPLINARY ACTIONS

33 34

ARKANSAS BAR ASSOCIATION SUSTAINING MEMBERS

IOLTA HONOR ROLL

JUDICIAL ADVISORY OPINIONS

LAWYER DISCIPLINARY ACTIONS

IN MEMORIAM CLE CALENDAR CLASSIFIED ADVERTISING/INDEX TO ADVERTISERS

47 48 48

UNAUTHORIZED PRACTICE OF LAW

Earning Their Keep by Roben M. Cearley, Jr.

You may wonder from time to time just what your elected leaders and the staff of the Arkansas Bar Association do to earn meir keep. In addition (0 tending CO the day to day needs of OUf members, coordinating effocts of our committees and sections, and preparing {Q put on one of the best Annual Meetings ever, year after year, we have been especially busy this past year providing suppon [0 special (ask forces and lobbying the Arkansas legislature.

JUDICIAL ARTICLE I am pleased

announce that the

Judicial Anicle Task Force, under the leadership of Judge John Stroud, and with the able assistance of OUf lobbyist, Alice Holcomb, and the timely support which many of you provided, succeeded in persuading the General Assembly to place the Judicial Artiele on the general election ballot for November 2000. Special thanks goes to Jim Julian, Chair of the Legislation Committee, for his devocion to this task and the many ochers which he performed so well during the legislative session. This result has been eight years in the making and we owe a debt of gratitude (0 many of you for your tireless support over the years which laid the groundwork for our success this year. We have a lot of work yet to do to educate Arkansas voters before we finally have a modern judicial article, bur with your continued support and that of the Arkansas Judicial Council, will enter the new milJennium with a new coun system which merges law and equity and provides for the non-partisan election of judges, and makes other needed changes in our judicial system.

ORGANIZATION AND REDISTRICTING Over two years ago President Harry Truman Moore, with the approval of the House of Delegates, appointed the Organization and Redistricting Committee,

Thr

Ir~aml

La"Jrr

111.11.\0. tlSpriq 1999

a special committee, to evaluate our current districts, propose revisions to better reAect population changes since our last redistricting in 1980, and to take a critical look at our organizational structure and goverOver the past rwo years the nance. Committee has done its work and will be making its recommendations to the House of Delegates at the Annual Meeting in June. The major recommendations include reducing the number of State Bar districts from five to three: South & East, Pulaski and Northwest; changing the House of Delegates into a policy making body (retaining authority to adopt the Association's legislative package, approve petitions to the Supreme Coun and resolutions to other bar associations); renaming the Executive Council the "Board of Governors," expanding its elected membership from fifteen ro eighteen, and ceding to it the authority for the regular operations of the Association, including the annual budget and business relationships with ocher emities; with day (0 day operational authority to be vested in an Executive Commirree. If approved by a vote of the membership next fuJI, the Association will begin the year 2000 with a governing structure that more properly reAects our membership, more efficiemly manages our business, and affords our elected leaders the time to consider issues of broader concern to our members, the profession and the public. It is my belief and that of the Committee that the new structure will afford the House of Delegates the opporruniry to concern itself with some of the challenges which confront our profession coday: maintaining high standards of professionalism and civility in an era of increasing competition, imerstate and multi-disciplinary practice, judicial independence, advertising and solicitation, and continuing legal education, JUSt to name a few.

The Task Force on Unauthorized Practice of Law, chaired by Brad Hendricks, is considering the increasing incidence of solicitation by lawyers and non-lawyers. representation of insuteds by in-house counselor captive counsel for insurance carriers. intrusion into lawyer-client privileged communications by the auditing of billing statements of insurance defense counsel, management and control of litigation by insurance carriers, and the ethical and legal implications of multidisciplinary practice. The work of this task force in these areas is ongoing.

LAWYER ADMISSION AND DISCIPLINE The Task Force on Lawyer Admission and Discipline, chaired by William C. Btidgforth, has undertaken a thorough review of our admission and discipline procedures and will make a preliminary report to the House of Delegates in June. This report will be widely disseminated in anticipation of presentation of a final report to the House in the fall or winter. The House of Delegates will decide what recommendations are made ro the Supreme Court of Arkansas which has jurisdiction over these maners. Some highlights of the Task Force recommendations which I anticipate are:

Revamp the bar exam to test practice skills, and increase the emphasis on ethics, professionalism, and law office management in law school curriculum. Law schools tend to teach what is required ro obtain a license. Traditionally, major emphasis has been on substantive law with minor emphasis on ethics and practice skills. Preliminary recommendations of the Task Force are likely to include increasing the emphasis on ethics and practice skills in the law school curriculum and making mandarory participation in a "Bridging the Gap" seminar on these and related topics within the first year after obtaining a license ro practice law. Corollary changes in continuing legal education programs would be designed to supplement and reinforce this training. Establishment of a Lawyer Assistance Program. Early intervention in cases of Continued on Page 29

November 7,2000 by Don Hollingsworth e-mail: dhollingswonh@arkbar.com

The citizens of Arkansas will have the opportunity to vote on a new judicial article for the Arkansas Constitution-without the article being a part of an entire new constirution which the votets have rejected several times this century. This has been a very long time coming, especially for our members who have worked on judicial reform over the past three decades. In its currem form as adopted by the Arkansas General Assembly on April 9. 1999. this has been a two-year process which is described by Judge John F. Stroud. Jr.â&#x20AC;˘ In the Winter Issue of this magazine. Passage on November 7. 2000. will depend on our profession educating the public abour the need for judiciaJ reform. The primary benefits of the judicial Article are described in the Wimer Issue also. Every member of the Arkansas Bar Association is encouraged to participate in this campaign. The day after the Judicial Article passed the General Assembly we heard from members who were already volunteering. As the details of the campaign are finalized, everyone will be informed of the various ways in which they can help. It is imperative that we seize this oppor<unity for the legal system and our profession. In doing so we muSt cause judicial reform to become alive and relevant to the public. and we must involve a wide variety of civic. educational and religious groups. It is impossible to name all of our members and others who helped on this effort during the last twO years. A conservative estimate is that over 500 attorneys and judges had a direct involvement in the development of the current proposaJ andlor i" passage by the General Assembly. Additionally over 1,600 of our members participated in the membership vore on the judicial article one year ago, with 85% voting in favor. Never before has our profession been this unified on judicial reform.

Some readers may be wondering why the judicial Article was so difficuJr to pass in the General Assembly. There are a number of reasons. First. constitutional reform of any significance requires compromises which bring forth hard questions and opponents. Second. there wece "bottom lines" which the Arkansas Bar Association and the Arkansas judicial Council would and could not compromise because they were fundamental to judicial reform. In previous legislative sessions one oc more of these bottom lines have been sticking points, and the 1999 session was no different. Third. it is extremely difficult to "gain" one of the three spotS for amendments referred by the General Assembly to the voters. Special thanks go to the Senators and Representatives who put judicial reform above other considerations and secured the article's referral to the vorers as one of the three constitutional amendments on the general election ballot in ovember 2000. Similar arrempts had failed previously in the Legislarure. and we came very close ro losing this legislative battle in the waning days of the 1999 General Assembly. Over a dozen lawyer-legislators in the Senate and House played crucial roles in the days and hours precM.ing the final vore and passage. Governor Mike Huckabee also played an invaluable role in irs passage. The Governor included the judicial Article in his legislative package and worked tirelessly for passage in the lasr days of the session. Essential ro our success were the leaders of our Association and the Arkansas judicial Council, including the judicial Article Steering Committee, the Legislation Committee, and other attorneys who do not fall within the above categories. In the last weeks of the legislative session the Steering Committee informally tripled in size as more of our members responded to specific requests for assistance. This "collec-

tion" of arrorneys and judges never gave up. Lastly, there are twO persons who deserve special recognition for the judicial article. Judge John Stroud has been the champion of the judicial article for many years, and his leadership, wise counsel and dedication were never failing. AJice Holcomb did an outstanding job as the Association's lobbyist. going well beyond the call of dury.

ARKANSAS BAR ASSOCIATION E-MAIL ADDRESSES Joyce Bobbitt jbobbitt@arkbar.com Angie Elizandro arelizan@arkbar.com Diane Gerrald dgerrald@arkbar.com Judith Gray jgraY@arkbar.com Virginia Hardgrave vhardgrave@arkbar.com Don Hollingsworth dhollingsworth@arkbar.com Sara Landis slandis@arkbar.com Cheryl Pinkerton cpinkerron@arkbar.com Barbara Tarlcingron btarkingron@arkbar.com athy Underwood cunderwood@arkbar.com Patry Zimmerman pzimmcrman@arkbar.com

Editor's Note:

The Arkamar Lawyer Mr. Robert M. Cearley, Jr., Presidenr Ms. Cathy Underwood, Editor Mr. John P. Gill, Guest Editor

Thank you for your many calls and letters regarding the Special

I congratulate all of you on the excellem Special Cencenniallssue

1998. It is an ou[Standing production. I know all of you spenr hours of time on it. I want yOli to know that I appreciate your efforts. I am nor sure I can select anyone item for specific comments. I enjoyed each olle of them. I am sorry Harry Meek is nor here to read the comments of Philip Carroll about him. M.t. Meek deserved so much credit for what he did for Arkansas, its lawyers and their diems. It was a real treat to listen (0 many of the talks he made. Ie was a privilege [0 work with him on his redrafting the business laws. I must confess that I was very touched by the commencs of Vincenr Foster, Jr., and his address, "Roads We Should Travel." I regret that Vince ever len the law practice in Arkansas and accepted a position in Washington, D.C. I must ask you to tell Judith Gray that all of us are very obligated [0 her for her years of service. We should never forget how much we are indebted [0 Dorothy Orsini for her guidance and dedication in mose early days when Arkansas lawyers relied so heavily upon her. Again, many thanks ro all of you for producing this excellent work.

Centennial Issue of Th~ ArklllZSIl.S Lawy~r magazine. And a special thank you ro Mr. Oscar Fendler, who sent this most gracious letter. It was very gratifying to hear that so many of you enjoyed the issue; we certainly enjoyed working on it. Since that printing, we have learned ofother first "Arkansawyers" in history. Mary Stallcup was the first female Attorney General for the state of Arkansas; Paula Casey was the first female U.S. Attorney in Arkansas; and James Baine, house counsel at Murphy Oil Corporation in EI Dorado, was Chancellor of Delta Theta Phi Law Fraternity, International, from 1981 to 1983.

We look forward

another 100 years of great Arkansas legal his-

tory in the making.

Sincerely, Oscar Fend.ler

On Marcil 27, Oscar Fendler celebrated his 90th birthday, and his 65lh year of practicing law. He is pictured here surrounded by many of \he anomeys who came to celebrate Ihe occasion.

\,'\\ \h'D1hf'I'S Or Ihi' \I'kansas Bal' \ssol'ial ion \dmitlt'd 10 Ihl' l'l'al'lin' or Lilli on \pl'il ~:1. 1!l!l!1 Janles A Bagwell Robin L. Baldwin Patrick J. Benca

James E. Blounr, IV Douglas M. Borthwick Cameron P. Bunring Shawn G. Childs Ronald W. Ciesiel Jason G. CroweU Tonya C. Culp Forchisha M. Davis

William Lee Dawkins, Jr. Robert C. Earle Robert H. Edwards John A. Ellis Tommy E. Fowler, Jr.

Lynn Gipson Molly A. Glover Althea E. Hadden Vanessa J. Hakim Troy S. Heavener Andrea A. Hood Benjamin B. Hyneman

Kimberly A. Johnson Samuel S. Karr Ralph A. Keen

Ginger Y. Kimes Michael B. Kyriakakis M. Melissa Lee Dana G. Leonard Dustin B. McDaniel

James B. McHugh Joseph P. McKay

Robin L. Miller Shawn M. Morgan William K. Moritz Travis J. Morrissey

Brett T. Parks Willianl F. Smith, III SCOtt A. Strain James S. Street Jason A. Stuart Kenneth W. Thomas Mach Marthew Thormon

Tony Thurman John M. Vardeman Donald E. Warren H. Todd Whacley

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Disability, DRC, and the

Law

he Comminee on Individuals wirh

II.

Developmemal, Memal, and Physical

Disahiliries (we plan co shorten the name soon) welcomes you co an entire issue dedicated (0 disability law. We think you will enjoy the wide variety in these articles and learn some usefuJ information for your law practice. As you read the issue you will see fre-

III. Services are provided to persons with disabilities in the least restrictive environment. TV

Persons with disabilities have equal access to government services, public accommodations, housing, and employment.

Persons with disabilities are aware of <heir righcs.

quent references co the Disability Rights Cemer, Inc. (ORe). You may be familiar with this agency. ORe recendy sent our surveys to members of the bar seeking lawyers inrerestcd in referral work through ORCs Disability Lawyer Referral Service. One hundred and chirty-three (I 33) of you responded. Thac is good because there are 230,000 people in Arkansas with disabilities. Since ORe only has rwo anomeys it is impossible for them co handle it all. That

is where you come in. Arcorneys interested and experienced in disability law who compieced the survey will be informed of training opportunities. If you did not fill our the survey bur are interested give ORC a call. But who is ORC? DRC is a non-profit and federally funded agency whose mission statement is simple: To protect the human, civil, and legal righcs of individuals wich disabilities.

Their 1999 goals are:

Persons with disabilities are free from abuse and neglect.

Consumers and family members have meaningful participation in all aspeets of human services.

As you can see, however, their missions and goals are large. You will find out more about DRC in Jan Baker's article on "Promocing C1ie", Self Advocacy." Jan is the senior staff attorney for the Disability Rights Center in Little Rock. She tells you in her article how to help your clients help themselves. So many problems can be solved without the need for legal services if people can learn good communication skills and how ro make a record. J. William Cain, Jr., general counsel for DRC, provides you wi<h an in-depth article concerning the Americans With Disabilities Act's most integrated setting regulations. The United States Supreme Court has granted a writ of certiorari ro hear L. C. v. Olmsuad, a case about twO patients with a variety of mental disorders who have challenged their required inpatient treatment, arguing instead they need community residential rehabilitation ser-

vices. One question raised in this fine article is: "Did Congress consider the provision of segregated services ro individuals with disabilities a form of discrimination prohibired by the ADA?" The Supreme Court's decision in this case promises to have a large impact on the states. Danielle Strickman, our only nonlawyer author in this issue, and chair of the Arkansas Independent Living Council, highlights your role and responsibility as an attorney and advocate for your clients in achieving compliance wim the ADA. You will find a grear deal of praccical advice and resource information in her article. I swpeet you will also become more aware of the physical barriers around you, that we think. little of, which prove to be great obstacles for people with disabilities. Finally, Ranko Shiraki Oliver, who teaches disability law as well as immigration law and legal writing at UALR School of Law, provides you with an incredibly comprehensive "overview of federal laws proteering students with disabilities in colleges and universities." You will find the arr.icle highly readable, carefully researched, and well documented. All of these anicles make me proud to chair me bar association's committee on individuals with disabilities. Three of the four authors are members of the committee with Ranko Oliver being its former chair. We hope you can take the time to read, enjoy, learn, and perhaps be inspired co become more involved with disability law. Donna Petrus

Promoting Client Self Advocacy By Jan Baker

A rkansas Disability Rights Center. Inc. (DRC) is the federally funded Ji.pcorccrion and Advocacy System (P&A) for individuals with disabilities in Arkansas. P&As are a nationwide nc(work of disability rights agencies which are mandated, under various inrerrelared federal srarurory programs, [0 provide legal representation and other advocacy services on behalf of persons with disabilities. See, e.g. Developmemal Disabilities Assistance and Bill of Rights Aer. (DO Act) 42 U.S.c. § 6042 and Protection and Advocacy for Individuals with Mental Illness Act. (PAlMI Act) 42 U.s.c. § 10801 (t Irq.• Rehabilitation Act of 1973. 29 U.s.c. §§ 70 I (t Irq. DRe is mandated by federal stature to use good faith negotiation to resolve a complainr prior to filing for administrative or judicial relief. For chose cases which are not resolved through good faith negociation. DRe pursues administrative or judicial relief available under the Americans with Disabilities Act, Section 504 of me Rehabilitation Act, me Individuals with Disabilities Education Act, Title I of the Rehabilitation Act, and the Fair Housing Act. DRC investigates abuse and neglect complaints at, for example, the Arkansas State Hospital, residential care facilities, human development centers, nursing homes, and jails and prisons. DRC investigates allegations of failure of public entities to provide program access, failure of public entities and public accommodations to remove architectural barriers which prevent access to services, and denial of reasonable accommodations by employers, local school districts, and higher educacion. DRC advocates for people with disabilities who are applicants or clients of programs funded under the Rehabilitation Act. DRC provides technical assistance to parents of students with disabilities when the local school district has failed to provide the studem a free appropriate public education. DRC staff includes nine full-time advocates and rwo staff attorneys who respond to complaints throughout the state as well as provide information, referral and technical assistance. Due to the limited number of Staff, ORC encourages individuals with disabilities to advocate for themselves in certain siruations. ORC provides training, publications and technical assistance to empower people to become effective advocates. The following is a synopsis of steps DRC encourages people to foUow in order to be successful self-advocates: PREPARATION

Effective self-advocates must be organized. objective and flexible; prepared deal with "WE CAN'T; WE DON'T HAVE THE MO EY; WE KNOW WHAT'S BEST." Good communication skills are an important aspect of successful selfadvocacy. (0

I. IDENTIFY NEEDS:

1. What services do you want: education, malical care, housing, employment, transportation? 2. Who can provide the services you need? 3. What do you need to get these services? II. INFLUENCING DECISION MAKERS:

1. Build a good relationship with the person working directly with you or your child. 2. Come to meetings prepared to be posicive; smile and be friendly. Leave resentmem and defensiveness at home. 3. Get to know the people who can make decisions, names, addresses, phone numbers, etc., so that you can conract them for help and information. 4. Know your rights. Few people know all the laws which concern services, but it is important to know where to get information about your rights. Conraet local advocacy groups, parem SUppOTt groups, state

I nr ,Irkmas LallW 111. II So. t1S,riog 19!9

agencies and the protection and advocacy agency funded by rhe federal gov-

ernment and ask

See the

have your rights

explained. If you can, ger the expla-

nation in writing. Be aware of whether the agency's services are offered on a mandatory or permissive basis and whether or not you, your child, or F.unily meer rhe

eligibility criteria. What information do you need co qualify your requesr

for service? What is the agency's application process? What is the appeal process if services are denied? Communication skills: It is just as important to know how to say something as what to say. Good communication includes give and take and knowing how to develop a positive relationship; to see issues from the agency's side. It also includes being assertive. Assertiveness simply means standing up for one's personal rights and expressing them in an appropriate way-still respecting the rights and opinions of others.

at the Arkansas Bar Association Annual Meeting June 10, 1999, Arlington Hotel, Hot Springs Michael Tigar is one of the nation's big time litigators and advocates. He has the magnetic podium presence of an Edward Bennen Williams or Irving Younger. Be one of those who comes away from his program as a better lawyer who aspires CO be the best. Mastering The Craft is a compelling journey through a modern American trial. It begins with Shaping Your Case, and moves carefully through me Keys To a Successful Case-in-Cbief (jury selection, rurect examination, experts, the cliem as a witness and problems of the difficult witness). It covers Tachcs and Tools for the Defense, and closes with The Big Picture of Your Case (demonstrative rools in an electronic age, and planning and delivering a winning closing argument).

III. PAPER TRAIL:

A paper trail means keeping written records of events or decisions which affect your efforts to get services. Keeping written records of what went on and when is often crucial in backing up your position. Paper trail skills include lener writing, note taking and record keeping. Keep a record at home of reports and notes relevant to you. Ask for a written stateme.nt of what action will be taken and when action will begin. Iv. Fouow UP: Follow up to make sure that the services you workw. hard to get are being delivered. Self-advocacy is a cyde. Self-advocares musr reassess their needs and the services available to meet their needs on an ongoing basis. Each stage in the cycle means new needs, new decision makers to influence and new follow up visits. Being an effective advocate demands persistence and patience.

IPAUL D

MIXO , Ph.D, P.E.

ELECTRICAL ENGINEERING CONSULTANT ELECTRICAL ACCIDENT INVESTIGATION • Reconstruction and Analysis • Property and Equipment Damage • Personal Injury or Death

PAUL D. MIXON, PhD., P.E. o Doctorate in Engineering o Over 13 Years Engineering Experience o Experienced Expert Witness

rrom

Taken A Parem', Guide, Civil Righrsl Education, Published by rhe Disability Righrs Cemer, Inc. (501) 296-1775 (vrIT\'), (800) 482-1 174 (vrirY).·>

Jan Baker has been the senior staff attorney for the Disability Righrs Cemer for rhe pa"

I0 years. She is also a licensed social worker.

Contact: Dr. Paul Mixon P.O. Box 3338 Slale University, AR 72467 (870)-972-2088 E-mail: pmixon@navajo.aslate.edu

I'll. H 11'1. ~/S,riall999

Tbl .lrklllal LaW!11

By J. William Cain, Jr.

n December 14, 1998, the United Srmcs Supreme Court granced a writ of certiorari on pcridon from L. C. v. Olmstead, 138 F.3d 893 (11th Cir. 1998). The holding in is that, where me treating professionals of an individual with a disabiliry. residing in a state instirution, find that a communiry-based placement is appropriate. Tide II of the Americans with Disabilities Ace (ADA)! and its accompanying regulations impose a dury ro provide treatment in a community scrring-rhe mOSt integrated setting appropriate to that patient's needs. The relevant regulation 2 provides: The public entity shall administer services. programs, and activities in the most imegrarcd sening appropriate (0 the needs of qualified individuals with disabilities. The inregration regulation of the ADA had been invoked in several cases prior to L.c., most notably in Helm L. v. DiDario.3 The Third Circuit, when faced with facts similar to those in L.C, reached the same conclusion. Subsequem decisions have relied on He/en L.. prompting state administrators around the country to complain of possible excessive expenditures should the integration regulation be enforced. In order to fully understand the regulation, it is necessary ro examine the circumstances leading to its promulgation. Section 504 of the Rehabilitation Act of 1973 4 \vas the first expansive federal statute outlawing discrimination against individuals with disabilities. Section 504 provides in part: o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded fcom the participation in, be denied the benefits of, or be subjected ro discrimination under any program or activity receiving Federal financial assistance. On April 26, 1976, President Ford signed Executive Order No. 11914 5 which authorized the Department of HeaJth, Education, and Welfare to coordinate enforcement of Section 504 and [0 promulgate regulations for that enforcement. That authority was later transferred to rhe Department of

I.e.

S fbI

\r~lI11ll,aIlW

III II \0. tiS,rilI 1999

The "M ost Integra Americans Health and Human Services (HHS). On November 2, 1980, Presidenr Carter signed Execurive Order o. 1225()6 by which HHS coordination and enforcement authority was transferred to the Anorney General. The Executive Order directed that the H HS regulations be deemed ro have been issued by the Attorney General and should continue in effect until revoked or modified by the Attorney General. The H HS coordination and enforcement regulations were adopted by the Department of Justice and appear at Parr 41 of Title 28, Code of Federal Regularions. As relevant, those regulations provide that recipients of FederaJ financial assistance "shall administer programs and activities in the most integrated setting appropriate for the needs of qualified handicapped persons."7 The coordi-

nation regulations remain in 28 C.ER. Pt. 41 despire the fact thar other Section 504 regulations applicable to other federal agencies, including regulations for HHS, are found in other parts of the Code of Federal Regulations. The integration regulation is unique to the coordination regulations. Title II of the ADA incorporates the nondiscrimination principles of Section 504 and provides: No qualified individual with a disability shall, by reason of such disability, be excluded from participation in Ot be denied the benefirs of the services, programs, or activities of a public entiry, or be subjected to discrimination by any such cntity.S A provision of the ADA9 directs the Attorney General to promulgate rcgulations

. ' ........:

ed Setting" Regulation of the with Disabilities Act for implemcm3tion afTicle II. The Act provides that those regulations "shall be consisrcm with [the ADA] and with the coordination regulations under Part 41 of tide 28, Code of Federal Regulations (as promulgared by the Department of Health, Education and Welfare on January 13, 1978), applicable co recipients of Federal financial assistance under Section 794 of title 29."10 Among the regulations promulgated by the Anomey General pursuanr [Q the ADA is the provision that "a public enriey shall administer services. programs, and activities in the most integrated setting appropriate to the needs of qualified indjviduals with disabilities."I! By Congressional mandate, the Deparuncnr of ]usdce, having promulgated ADA regulations based on Secrjon 504 coor-

dinarion regulations, in effect, reaffirmed the validiry of those regulations. Indeed, the Third Circuit, in Helm L., concluded that because Congress mandated that the ADA regulations be patterned after the section 504 coordination regulations, the former regulations have force of law. 12 On July 29, 1998, the Health Care Finance Administration (HCFA) sent a letter to all state Medicaid directors which declared among other things: ... The Attorney General has indicated that under the ADA States have an obligation to provide services to people with disabilities in the most integrated setting appropriate to their needs. Reasonable steps should be taken if the treating professionaJ determines mat an individuaJ living in a

facility could live in the community with the right mix of suPPOrt services to enable them [sic] to do so.... To the extent that any State Medicaid program has no, fully completed the self- evaluation process, it should do so now, in conjunction with the disabiliry communicy and its representatives to ensure that policies, practices and procedures meet the requirements of the ADA. [n the same letter HCFA cited the L. C and Helen L. cases along wirh Easley v. Snider,J3 a Third Circuit case which wilJ be discussed later. The Arkansas Department of Human Services (DHS) responded to an inquiry concerning the HCFA letter by stating that the letter was merely apprising the states of "three isolated court cases ..." The thrust

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of <he HCFA lener was far more profound [han recognized by DHS. In Htlm L. [he plaimiff was paralyzed from me waist down due to meningitis. She had been a patient at a nursing home for several years. She used a wheelchair and required assistance with certain activities of daily living including ba[hing, laundry, shopping, gerring in and our of bed, and house cleaning. She was able to cook, dress herself, and attend to personal hygiene and grooming. The parties agreed thar although she was nor fully capable ofindependenr living, she was not so incapacitated as to require custodial care in a nursing home. The Pennsylvania Department of Public Welfare (DPW) opera[es cwo programs [hac provide physically disabled persons wi<h assistance in daily living. DPW funds nursing homes [hrough [he Medicaid program and, through state funds, it operates an attendant care program to provide basic and ancillary services which enable an individual with physical disabilities to live in her/his horne and community rather than in an institution. DPW's average cost of caring for a person in a nursing home was $45,000 per year, of which [he scare paid $19,800. DPW's average cost of caring for a person in the anendant care program was $10,500 per year. DPW contracted with a company to operate an attendant care program. That contractOr evaluated plaintiff and determined that she was eligible for attendant care services. However, because of lack of funding. she was placed on a waiting list for that program and, to the time of litigation. continued to live in a nursing horne. The parties stipuJated that the setting for the provision of attendant care services appro-

priate to the needs of plaintiff was in the communtty. The District Coun emered judgment for [he defendants. The Third Circuit reversed and, because the appeal concerned only issues of law, entered an Order directing the District Court to enter summary judgment in favor of plaintiff". After reviewing the history of Section 504 and ADA regularions, the Court held that because Congress mandated that the ADA regulations be patterned after the Section 504 coordination regulations, the former regulations have the force of law. 14 Further, the Act itself specifically states that individuals with disabilities continually encounter various forms of discrimination including "segregation."15 The statute states, "The nation's proper goals regarding individuals with disabiliries are to assure the qualiry of opportunity, full participation, independent living, and economic self-sufficiency for such individuals."16 The Court further noted that the Department of Justice, in response to its statutory mandate, stared, "Integration is fundamental to the purposes of the Americans with Disabilities ACr."17 The Court also concluded that Congress could not have intended ro limit the ADA protections and prohibitions ro circumstances involving discrimination. IS The Court quoted, with approval, a portion of the brief of the Department of Justice: The 504 coordination regulations, and the ADA make clear mat the unnecessary segregation of individuals with disabilities and the provision of public services is itself a form of discrimination within the meaning of mose statlltes, independent of the discrimination that arises when individu-

als with disabiliries receive different services than those provided to individuals without disabilities. 19 In Helen L., plaintiff was not asserting a righr to community care or institucionaliza[ion by itself. She properly conceded [hac DPW was under no obligation to provide her with any care at aiL Plaintiff was merely claiming that, since she qualified for DPW's attendant care program, failure to provide those services in the most integrated serting appropriare to her needs (without a proper justification) violates the ADA. Lastly, the Court concluded rhat the assertion that funding was not available was nor a defense: It is not up to [the court] to invent a funding mechanism whereby the Commonwealth can properly finance its nursing home and attendam care program. However, me ADA applies to the General Assembly of Pennsylvania and not JUSt to DPW. DPW cannor rely upon a funding mechanism of the General Assembly ro justify administering its artendam care program in a manner that discriminates and then argue that it cannor comply with the ADA without fundamentally altering its program. 20 In Easley v. Snyder," also cired by HCFA, two plainriffs-one with a brain injury and me omer with Multiple Sclerosis, and undifferentiated schizophrenia-were found eligible for Pennsylvania's attendanr care program even though they were nor "mentally alert." The Pennsylvania legislation at issue declared that its purpose was to enable physically disabled bu[ mentally alere adulcs between the ages of 18 and 59 ro live in

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101. H ,10. 2/Spring U99

The Irkansas I,awler

their own homes and communities. 22 In reversing the District Court, the Third Circuit held that mental alertness was part of the essential nature of the attendant care program, and therefore a necessary prerequisite for participation in the program. The essential nature of the program is to foster independence through consumer control for individuals who, bur for their physical disabilities, could manage their own lives, achieve independence, and, perhaps, obtain employment. Inasmuch as the use of surrogates would, at the very least, change the entire focus of the program, such an accommodation would not be reasonable in that it would alter the essential nature of the program and impose an undue burden in the light of the overall program. The concise holding of Easlq is that the Pennsylvania Attendam Care Services Act which requires that qualified persons be not only physically disabled, but abo mentally alert, does nor violate the ADA's nondiscriminatory purposes. The Helen L. case, decided four months after Easley, cited the latter case for the proposition that Title II incorporates the nond.iscrimination principles of Section 504 and extends them to state and locaJ governments. The Helen L. panel did not further cite Emlty because the earlier case is nor inconsistent with the decision in Helen L.. i.e., "mental alertness" was not at issue in Helen L.. The Easlty Court concentrated solely on the essential nature of the program and reasonable modifications-not integration. The District Court in Williams v. Wassermann, 937 F. Supp. 524 (D. Md. 1996), found no inconsistency when it commenced: If mental alertness had not been an essentiaJ part of the progranl, or if the plaintiffs in Easley could have participated in the home care program with a reasonable accommodation, then they would have been "otherwise qualified" individuals and refusal to provide them the benefits of the home care program would have been discriminatory.23 In L.C v. Olmstead, now before the Supreme Court, two patients in a state psychiatric hospital challenged their continued confinement in a segregated environment urging that it violated the Departmenc of Justice's integration regulation. Plaintiff L.C. was mentally retarded and had been diagnosed as schizophrenic. She alleged that, despite professional judgment of her

Tbr ,Irkausasl,aw!rr

l'ul.l路lllu.1/Spring 1999

psychiatric treatment team that she no longer required inpatient psychiatric treatment, and instead needed community residenrial habilitation services, the defendants continued to confine her at the state hospital. The second plaintiff, E. W., was a menmlly retarded woman who had also been diagnosed with a variety of mental disorders. She also sought release into the communitybased residential program. The defendants argued that they had not violated plaintiffs' rights under the ADA because they had been denied community placement due to inadequate funding and not due to any discrimination based on disability. The District Court disagreed with the defendant's contention and the Court of Appeals affirmed the court's judgment that the state discriminated against L.C. and E.W., but remanded the case for further findings related to the defense that the relief sought would fundamentally alter the nature of the service, program, or activity. The state argued that application of the integration regulation was contrary ro the ADA's requirement that a plaintiff prove that he or she face discrimination "by reason ofsuch disability." It was further contended that plaintiffs did not show that they were denied community placements available ro nondisabled individuals because of disability. In an amicus brief to the Supreme Court, Other states have adopted the same argument. The Eleventh Circuit rejected the argument by stating that "the confinement of L.c. and E. W. at [the srate hospital] is attributable to their disabilities, thereby proving the very element the state argues is missing."24 It seemed to the Court thar the stare's argument is that Tide II of the ADA affords no protection to individuals with disabilities who receive public services designed only for individuals with disabilities. The Court could find no legal authority supporting such a reading ofTitle II and funher found that it was contrary to the Justice Department's consistent interpretation of the ADA regulations. It was held that underlying the ADA's prohibitions is the notion that individuals with disabilities must be accorded reasonable accommodations nor offered to other persons in order to ensure that individuals with disabilities enjoy equality of opportunity, full participation, independent living, and economic selfsufficiency. The state's argument was rejected by a finding that it: is inconsistent with Congress' direction to promulgate regulations consis-

tent with the 504 coordination regulations. These regulations impose a duty to provide the most integrated services appropriate irrespective of any difference between services provided to individuaJs with disabilities and individuals with nondisabilities. Under the 504 coordination regulations, no showing of differential treatment is required: The integration regulation, on its face, applies to all services provided by a public entity.25 The Department of Justice filed briefs amicuJ curiae in both the Helen L. and L. C cases. In these, and similar cases, the Department begins its argument with the recognition by the Attorney General that: "Integration is fundamental to the purposes of the Americans with Disabilities Act. The provision of segregated accommodations and services relegates persons with disabilities to second class status. "26 The Department proceeds to review legislative history noting that the House and Senate reports emphasized that the purpose of the Act is to end the isolation, exclusion and segregation of individuals with disabilities, and the discrimination that "persists in such critical areas as ... institutionalization;" the "compelling need" for the "integration of persons with disabilities into the economic and social mainstream of American lifej" there has been an historic "isolation" ofindividuaIs with disabilities; and the "purpose of Title II is to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life."2? The argument continues with the Findings and Purposes clauses of the ADA itself, noting that Congress specifically found that "institutionalization" is one of the "critical areas" in which discrimination against individuals with disabilities persists. 28 Lastly, it is argued that, because Congress specifically required the Attorney General to promulgate lide II ADA tegulations based on the Section 504 coordination regulations which defined disability based discrimination by public entities, these regulations, which are tailored to conform to Congress' directive, constitute legal mandates. The He/en L. and L. C courts adopted the generaJ reasoning of the Department of Justice and used much of the broad language employed in the amicus briefs. Because of the scope of the language, some states, in an amicus brief before the Supreme Court in

L.C, argue that the L.c. court, in effect, equated the segregation of individuals with disabilities in all cases as a per se violation of me ADA. Accually, the holding is more narrow. Near the end of its opinion, the Eleventh Circuit panel stated as follows: We emphasize that our holding does not mandate the deinstitutionalization of individuals with disabilities. Indeed, we hold that where, as here, a disabled individual's trearing professionals find mat a community-based placement is appropriate for that individual, the ADA imposes a duty to provide treatment in a community setting-the most integrated setting appropriate to that patient's needs. Where there is no such finding, on the other hand, nothing in the ADA requires the deinstitutionalization of that patient. 29 Unfortunately, the L C opinion also includes broader statements including: "Indeed, the legislative history makes clear that Congress considered the provision of segregated services to individuals with disabilities a form of discrimination prohibited by the ADA."3o This, combined with a sentence noting that community placement may constitute a fundamental alteration in the state's provision of services (and therefore a defense). may complicate the review. The Coun's holding in L C. is consistent with that in Helen L. where it was found that there was no assertion of a right to community care or deinstirutionalization by itself Both cases make it clear that the ADA does nOt require deinstirurionalization. Facts, supporting community-based care, as set forth in both cases, including the opinion of the treating professionals, muSt be present for the conclusion reached by both courts. For example, the Eleventh Circuit specifically held that where there is no evidence and no finding that the communitybased placement is appropriate, nothing in the ADA requires the deinstitutionalization of the resident)l Twenty states (not including Arkansas) and the territory of Guam submitted an amicus brief to the Supreme Court in support of petitioners)' The first part of the states' argument is that fiscal reality limits the ability of me states to adequately fund community-based placements for all individuals with disabilities. It is further argued that if the institutional population drops significantly, the facility based reimbursement schemes in place nation-wide will be

severely undermined because of the "diseconomies" of scale created by the "deinstitutional.ization." This argument should fail because the Eleventh Circuit made it clear that the ADA does not require "deinstitutionalization." In any evenr, the states are really arguing that, although it is generally less expensive to treat an individual in the community than in an institution, if such community-based treatment is not availablc, funding for such new services would be prohibitive. In arguing that facility based reimbursement schemes will be undermined, the states are raising a question of legislative import by conceding that federal money is. to a large degree, instirutionaJly biased. This appears to be more of a politicaJ issue to be dealt with by the legislative branch. Secondly, the states argue that Congress, historically, has been concerned with separate services, benefits and aids that were provided to individuals with disabilities rather than affording them the option of participating in the same services that are provided to persons without disabilities. They contend that is not the circumstance here, where the services at issue are not offered to individuals who are not disabled. In othcr words, the ADA and Section 504 were designed to ensure even handed treatment between individuals with disabilities and persons without disabilities. Thus, thc argument is that illdividuaJs with disabilities should not be afforded preferential treatment. Generally, the same arguments are made in an amicus brief filed by ilie State and Local Legal Center, in behalf of certain stare and 10caJ organizations, in supporr of petitioners. Briefs in behalf of various disability rights organizations, former mental health commissioners and former developmental disabilities directors are being filed in behalf of respondents. The probable response of the Departmenr of justice will be the same as made in the He/en L. case where the Department argued that segregation of individuaJs with disabilities and provision of public services is itself a form of discrimination within the meaning of the ADA, independent of the discrimination that arises when individuaJs with disabilities receive different services than those provided to individuals without disabilities. In all probability, the court will not fully adopr eirher of the arguments as to deinstirutionalization or the justice's argument that segregation may be a per se violation. It is possible that the court may graft an "undue burden" stan-

dard on Title II to reach a middJe ground. The Supreme Court will hear argument in April. The decision in this case will have a significant effect on the responsibilities of the states to its citizens who are now institutionalized or may be so.•:.

Endnotes 1. 42 USC § 12131 "seq. 2. 28 CER. § 35.130(d). 3. 46 E3d 325 (3rd Cir. 1995), em. den. sub nom Pmn. Secretary ofPublic Welftre v. Idell S.• 516 U.s. 813 (1995). 4. 29 U.S.C § 794. 5. 3 CER. § 117 (1977). 6.45 E Reg. 72995 (1980). 7. 28 CER. § 41.51 (d). 8. 42 USC § 12132. 9. 42 U.S.C § 12134(a). 10. 42 USC § 12134(b). 11. 28 CER. § 35.130(d). 12. 46 F.3d ar 332. 13. 36 E3d 297 (3rd Cir. 1994). 14. 46 E3d at 332. 15. 42 USC § 12101(a)(5). 16.42 U.S.C § 12101(,)(8). 17. 28 CER. Pc 35, App. A, page 448. 18. 46 E3d ar 335. 19. It!. ar 335. 20. !d. ar 338. 21. 35 E3d 297. 22. Pennsylvania Attendant Care Services Act, 62 P.S. § 3051 r!Srq.

23. 24. 25. 26. 27.

28 29. 30. 31.

937 F. Supp. at 530. 138 E3d ar 896. !d. at 900. 28 CER. Pc 35, App. A ar 448. Su S. Rep. No. 116, JOist Cong., 1st Sess.; H.R. Rep. No. 485, lOIS[ Cong., 2d Sess. 42 U.S.C § 12101 (a)(3). 138 F.3d at 902. !d at 898. It!. at 902.

32. As of mid February, rwelve of the states (including Florida, the organizer of the brief) had withdrawn their support of the petitioner's brief, and four had signed on.

]. William Cain. Jr., is General Counsel for the Disability Rights Center, Inc., in Litde Rock, Arkansas, whcre his practicc focuses on civil rights for persons with disabilities. He is a 1962 graduate of Amcrican University, Washington College of Law.

I'ol.llilo. 2/Spring 1999

TbB!lrkansas l,allIfr

From the Consumer's Viewpoint: Have Attorneys Aided in Compliance with the Americans with Disabilities Act? By Danielle Srrickman

he Americans with Disabilities Act (ADA) was passed nearly [cn years ago (P.L.I 01-336, 1990). Now is an appropriate time to review and (Q explore the impact that this landmark legislation has had on people with disabilities within the State of Arkansas. (See quarterly "Enforcing the ADA, Stams Reports" from [he Depanmem of Justice. Disability Rights Section of the Civil Rights Division for national trends).

n" ,lrkansaJ Lall)er

1'01. 11110. :!ISprio! I999

As a consuJram on disability issues, and a member of the National Americans with Disabilities Act Training and Implementation Network, I work with businesses, stare and local governments. employers, and people wieh disabilieies ro build bridges and promote opportunities for the full integration of people with disabilities and, in particular, to support compliance efforts under the ADA.

The ADA has definitely changed the lives of people with disabilities. It has removed many physical barriers and djscriminarory practices that previously limited opporcunities available to live, work and recreate in the communities of one's choice. Now, city parks and recreation facilities offer accessjble playground equipment. Newly constructed hotels with 50 or more guest rooms include wheel-in showers. Restaurants are designed

with ramped access co aJlleveis of me restaurams and may offer braille menus. Accessible parking spaces are wide enough for lift-equipped vans. Sign language interpreters are present (upon request) at city council meetings and government meeting rooms have assisrive listening systems. Hospitals and doctors' and atrorneys' offices provide imporcanr documenrs in large print or on cassette rape. The Arkansas Rday

Service allows communication with a person with a speech or hearing disability who uses a TOD (telecommunication device for the deaf) or a text telephone; and technology, flexible work schedules and other reasonable accommodations offer employment opportunities for many people with disabilities. However, passage of this legislation has nor been enough. Frequently I hear from people with disabilities. not only in

Arkansas bur throughout the country. that although we have the most comprehensive civil rights legislation for people with disabilities in the world. there continue to be significant barriers-physical. communication, and attitudinal-that prevent equal access and protection against discrimination even within the areas covered by the law. Why is that so? In my opinion. one primary reason for the continuing discrimination

1I1.llll.1 S,ril! 1m

Til ,\rllllll Ll1IJ/r

"What are your respollsibilities to your clients who

OWIl

or operate

public accomodatiollS, who provide state or local governmetlt programs and services, or who have 15 or more employees? You should be ready to allalyze their needs and pro-actively give them advice on their resp07lSibi/ities under the statute. "

is a basic dearth of information or outright misinformation communicated to those with the responsihiliry for compliance. Many people still lack accurate information ahout their responsibilities under the ADA. As attorneys, you have an opportunity to both serve as a model for your clients and the community as a whole, and [0 act as a well-informed resource to assisc your

ment. hiring. promotion. tra.ining, pay. termination, job assignments. leaves. benefits. and all other employment related activities. Under the ADA, an employer must provide reasonable accommodations for applicants and employees, who are otherwise qualified for the job, unless doing so would become an undue hardship for the employer.

clients in fulfilling their responsibilities.

Title II, Non-Discrimination in State and Local Government Programs, Activities and Services. including transportation. In brief. the Program Accessibility standard is flexible and does not require the entity to do anything that results in an undue financial or administrative burden. Structural modifications in buildings that existed on January 26. 1992, are required only if there is no alternative available. Alternatives may include re-Iocation of the service or program to an accessible facility, or provision of services at alternate sites. All new construction, however, must meet the more stringent accessibility standards.

In an effort to provide information, this article will:

â&#x20AC;˘ IdelHif)r priority ADA compliance issues for people with disabilities; Highlight the roles and responsibilities of attorneys and their clients in achieving compliance with the ADA; Clarify disability related tax provisions of benefit to you and your clients; and Identify state and regional resources available to you. This article is not a legal guideline to the ADA. Rather, this article will present information from a disabiliry advocate who works closely with many Arkansans who have disabilities. As such. you may find it a helpful jumping off point for your awareness of the issues and for your legal research. OVERVIEW OF THE

ADA

As you know, [he ADA prohibits discrimination of people with disabilities in the following areas: Title I, Non-Discrimination in Employment, applies to the public sector regardless of [he number of employees, and the private seC[Qr when an employer has 15 or more employees. In brief, this tide requires that employers not discriminate in any employment practice. including recruit-

np ,\r~IIllJ LIIIJPr

101. lili. tlSprill1 199

TItle Ill, on-Discrimination in Public Accommodations requires that privately owned or operated public accommodations such as restaurants, hotels, theaters, doctors' and lawyers' offices. pharmacies. transportation services. retail stores, museums, parks, private schools and day care centers provide access to the "full and equal enjoyment of the goods. services. facilities, privileges, advantages, or accommodations" of that public accommodation. (This is not an exhaustive list.) This 1113y entail modification of policies, practices and procedures, or the provision of auxiliary aids and services (such as assistive listening systems, readers or interpreters) to ensure effective commu-

nication for individuals with hearing or vision disabilities. Title III requires a public accommodation to remove architectural or communication barriers in existing buildings (again. those construcred prior to January 26, 1992), when ir is "readily achievable ro do so.' The readily achievable barrier removal standard is defined as one which is "easily accomplishable and able to be carried our without much difficulty or expense." And, again. all new construction must meet the more stringent accessibility standards. Title IV, Non-Discrimination in Telecommunication Services. This section of [he stature established rhe Arkansas Relay Service which enables people with hearing or communication disabilities who use a rext telephone or TDD (relecommunication device for the deaf) to communicate through a relay operator with people who use a traditional voice telephone. Top CoMPLIANCE ISSUES FOR PEOPLE WITH

DISABILITIES

There are several compliance issues which employees and consumers with disabiliries idemify. The problems creared by these issues continue to have negative effects on equality for people with disabilities in our state. They include: Lack of Knowledge of Responsibilities by Private Entities under TIde Ill. When a business owner does not know what accessibility features are needed, it is unlikely that the: barriers will be removed. For example. for many businesses. widening a door, installing a ramp over one or twO steps, making a curb cut in a sidewalk. adding raised. markings on elevator control buttons, installing visual alarms, repositioning a paper rowel dispenser, or rearranging toilet stall parritions to increase maneuvering space may be feasible under [he "readily achievable barrier removal" standard. Whether or not it is readily achievable to remove a specific barrier can only be determined on a case-by-case basis. The nature and cost of the barrier removal and the resources available must be considered. If, however, the business is located in a new building, full compliance with the accessibility standards is required. Lack of expertise of ADA Coordinators in State and Local Governments (Tide II). Frequently, ADA Coordinators are assigned

responsibilities without adequate trammg. This lack of expertise ranges from no knowledge to misinformation about the responsibilities of the state and local governmental entities for which the ADA coordinators work. This frequencly leads to lack of access to city and couney buildings, including COUrt houses, administration buildings, institutions of higher education, and pol1ing places; lack of access to programs and services such as park district classes, library services, or law enforcement services; and even discrimination in employment opportunities. Common ADA Errors and Omissions in New Construction and Alterations, a technical assistance guide from the U.S. Department of justice, Civil Rights Division, Disability Rights Section, June, 1997, confirms the impressions of Arkansans who identify significant compliance issues in this area. People with disabilities are frustrated by the many errors and omissions in new construction and altered buildings. The following examples of common errors and omissions can be resolved easily if proper attention is paid to both design and inspection. When a built-up curb ramp projects into the access aisle and the access aisle has a sloped surface, jt creates a safety hazard. The wheelchair may roll away from the vehicle, making it difficult or impossible for the person to get in or Out of the vehicle. If handrail extensions are not provided at the top and bottom steps, people who use crutches, a cane, or have limited balance may fall. If adequate maneuvering clearance is nO[ provided at doors, a wheelchair user cannot open the door. If traditional round door knobs are used, requiring tight grasping and twisting of the wrist instead oflever handles, many people with disabilities cannot open the door. When an inadequate number of accessible coilet facilities are provided, people with disabilities are restricted and may have to trave! long distances to an accessible bathroom. Or, if there is inadequate maneuvering clearance inside a bathroom, it may be impossible for a wheelchair user to get Out. Frequently, permanent room identification signage is mounted in the wrong location, making it difficult for people who have vision disabilities to find the correct location. Audible alarm systems are common, bur visual alarms are omitted frequently, making it dangerous for people who are deaf should an emergency occur.

Restaurants with queuing areas are often toO narrow and do not provide adequate width for turns; additionally, condiment or utensil locations are sometimes placed above the reach range of a wheelchair user, making it impossible for the individual to have equal access ro the goods and services of the establishment.

Errors in Granting Building and Occupancy Permits. One of rhe most critical needs from the perspective of people with disabilities is for state and local government entiries to fulfill their responsibilities in granting building and occupancy permits only for buildings that meet the standards for accessible design. Over and over again,

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1'0I.l'lllo. jJSpriog "91

The ArklOlas I.aw)er

buildings are buil[ and occupied despi<e many errors or omissions ofaccessibility features. In fact, in my experience. it is more infrequem than frequent that buildings ac,"ally mcc[ all of me accessibiliry s<andards required of a particular facility. Although a blacant violation, this is not usually an intentional violation. It is. however, inexcusable. If a lack of training or expertise of inspection officers in local governmems is the cause, it can be remedied easily. Remember. a building permit does not immunize the builder from responsibilities under the ADA nor does it immunize the inspection officers. Providing your cliencs with accurate information ahom how mey can achieve compliance and referring them to technical assistance resources, some of which are identified at the end of this article, is critical.

Roebuck and Company conducred a S[udy which found [har of 436 [easonable accommodarions provided by Sears berween 1978 and 1992, 69% cos< no[hing, 28% coS[ less [han $\ ,000, and only 3% cos< more man $1,000. And, from 1993-1996, in a second srudy, the average CDS[ of accommodations was $45.20. (Perer David Blanck, Communicating the Americans with Disabilities Act, Transcending Compliance: \996 Follow-up Repo[[ on Sears, Roebuck and Co. [Iowa Ciry, Iowa, 1996])

Myths about the Cost of Accessible F~atures and Employment Accommodations frequently cause employers [0 make discriminarory employment decisions. Reasonable accommodation is usually far less expensive than the prospective employer might think. Most can be made without difficulty and at little or no expense. Sears,

areas:

Lack of knowledgeable attorneys in Arkansas willing to work with consumers on ADA cases. ArroRNEY REsPONSIBlUTIES UNDER THE

ADA Your role and responsibility as attorneys may fall under any o[ all of [he following • Compliance wim "Tide 1II of [he ADA as a public accommodation, a privately owned or operated service esrablishmenr; Compliance wim "Tide I of [he ADA as an employer. if you have 15 or more employees; Compliance of your c1iems wich TItles I,

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lrwm Li~W

fll.llii. j S,rilf Illl

II, and 11\ (eimer public accommodadons or governmemal entities); and Representation of your clients with disabilities. The link between some of che priority compliance issues and your roles and responsibilities as anorneys is noc very burdensome but does require some chought on your pan. As practicing attorneys, what are your responsibilities under Title III as a Public Accommodation? Your practice constitutes a service establishment (one of 12 categories of private businesses) chat, regardless of size, is a public accommodation; Services must be provided in me most integrated setting possible; You are required to make reasonable modifications to your policies. practices. and procedures in order to make your services available to people wich disabilities; • Effective communication may be achieved by using "auxiliary aids and services" such as qualified sign language imerpreters, materials presemed in large print or on cassette tape, text telephones for people who are deaf o[ hard of hearing, or using the Arkansas Relay Service, to name a few; • You mUSt remove architectural barriers in existing facilities where it is "readily achievable" to do so; and. • Newly constructed, remodeled, renovated or otherwise altered facilities must be accessible [0 and usable by people wi[h disabilities following the more stringent S[andards for Accessible Design SC[ form in the ADA Accessibility Guidelines (States and local governments may following the Uniform Federal Accessibility Srandards). A careful and morough review of the physicallayou[ of your offices, as well as the services you provide. will be necessary before you determine what changes will be required. Is your office accessible to wheelchair users? Do you have access to interpreters for clients who are deaf or hard of hearing? Do you make legal documents available in large print or on cassette tape for clients who have vision disabilities? Do you re-write documents so that people with cognitive disabilities understand the material? You might ask advocates from the disability

communicy [0 assist you in this review. Should changes be necessitated by the ADA, you should proceed co make them prior co any complaint by an existing or prospective client or visicor. What are your responsibilities to your clients who own or operate public accommodations, who provide state or local government programs and services, or who have 15 or more employees? You should be ready to analyze their needs and pro-actively give them advice on their responsibilitjes under the statute. Do your clients build accessible facilities for their businesses? Have your clients removed barriers to their existing retail and service establishments when it is readily achievable to do so? Are government offices and public meeting/council meeting rooms accessible? Do they have assistive listening systems? Do your clients make reasonable accommodations for employees with disabilities who are otherwise qualified for the job? Do your clients ensure adequate training of their staff"in areas related to ADA compliance? DISABILITY RELATED TAX PROVISIONS

There are disability related tax provisions of financial interest to you and your clients. The Internal Revenue Code includes twO disabiliry related tax provisions ro assist you and your clients in achieving compliance with the ADA. First, the Disabled Access Tax Credit (Title 26, Internal Revenue Code, Section 44) is available to eligible small businesses ($1 million or less in gross receipts for the preceding tax year; or 30 or fewer full-time employees) in the amount of 50 percent of "eligible access expenditures" that exceed $250 but do not exceed $10,250 for a taxable year. This credit is continuing; the business may take the credjt each year mat it makes an eligible access expenditure. AJthough new construction expenses are not eligible, most expenses incurred for barrier removal or the provision of services, modifications, materials or equipment, meeting technical standards where applicable, are eligible. Examples include removal of architectural, communication, physical, or transportation barriers that prevent a business from being accessible [0, or usable by, individuals with djsabilities; and provision of qualified interpreters, readers, or taped texts. The services of a consultant to make recommendations for compliance may also be an eligible expense. Additionally, a Tax Deduction of up to $15,000 per year to Remove Architectural

and Transportation Barriers co People with Disabiliries and Elderly Individuals (Title 26, Internal Revenue Code, Section 190) is the second tax provision available to businesses. Both the tax deduction and the tax credit may be taken each year for individual expenses incurred during that tax year.

THE ARKANSAS

ADA

ROUNDTABLE

Roberta Sick, Training Coordinator 800-831-4827 V/TDD or 501-682-9914 Voice or 501-682-9902 TDD SOUTHWEST DISABILITY AND TECHNICAL

AsSISTANCE

BUSINESS

CENTER

FOR

VI 800-949-4232 or 713-520-0232 V/TDD .. REGION

AVAll.ABILlTY OF CML RIGHTS ATTORNEYS

Enforcement of the ADA is, as you may know, a complaint driven process. Filing 3 complaint with a federal agency such as the Deparrmenc of Justice or the Equal Employment Opportunity Commission does nOt have to be a difficult process, but many people with disabilities would prefer to work with an attorney to file the complajnr and, certainly, if a lawsuit is to be filed. However, it is difficult to identify civil rights attorneys in Arkansas. Developing a resource list of attorneys interested in the rights of people with disabilities would be valuable to the disabiliry communiry. If you have or are interested in representing clients with d.isabilities in ADA (or other civil rights) cases, please let the resources identified in this article know of your availability. Ensuring that your practice is accessible to people with disabilities, and meeting the non-discriminatory employment requirements if you have 15 or more employees, will reflect your knowledge, understanding and commiunent to the rights of people with disabilities. Subsequently, people with disabilities will do business with you. RÂŁsOURCEINFORMATION

Recognizing the complexity of the law and its regulations, the Department of Justice, Civil Rights Division, the Equal Employment Opportunity Commission, and other federal enforcement agencies. provide a wealth of training and technical assistance materials as well as operate regional technical assistance centers to ensure that accurate and timely information is available to the public. These materials are readily available to you from local, regional, and federal sources, and on the Internet. For more information, you or your clients may contact any of the following resources: ARKANSAS INDEPENDENT LIVING CoUNCIL

Jim Eakin, Executive Director 800-772-0607 VrrDD or 501-372-0607 V/TDD

DanieUe Strickman, a Consu.ltant on Disability Issues, formerly the executive director of Sources for CommUlllty Independenr Living I Services in FayetteL...:L-J ville, currently serves as Chair of the Arkansas Independent Living Council.

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Overview of Federal Laws Protecting Students with Disabilities zn Colleges and Universities โ ข

By Ranko Shiraki Oliver

INTROOUCfION

Since the passage of the Americans with Disabilities Act of 1990, I society has experienced an increased awareness of the presence of individuals with disabilities in many settings, such as the workplace. places of entertainment. hotels, Stores, and professional offices. Colleges. universicies, and other institutions of higher education (hereinafter collectively referred to as "colleges") have seen an increased number of srudencs with disabilities enrolled in rheir programs since the mid1980s.' This is in parr because ยง 504 of the Rehabiliration Act of J 973' (hereinafter "ยง 504") has for a generation required colleges ro admit scudenrs with disabilities who can meet the essential requirements of rhe academic program. Ar the University of Arkansas

at Little Rock (UALR). for example. rhe number of students with disabiliries served by the university's Disability Support Services office in 1987 was 113; in 1998, the number was

506 4 The presence of these srudems in colleges

has also been made possible by the 1975 special education law (Education of All Handicapped Children Act, reauthorized in 1990 as the Individuals with Disabiliries Education Act ("IDEA")5). which was the first federal law providing for free appropriate public educadon for children with disabilities. Many of the children who have benefined from IDEA are now old enough to attend college, and may be able to do so because of the early intervention services they received through IDEA.6 Predictably, the presence of these studenrs in college campuses has presenred difficulr issues for faculty and administrarors. These issues generally arise in the conrext of admissions procedures (determining whether the applicant is a "qualified individual with a disability") and academic programming (determining wherher the accommodarions or modificarions required by the student are "reasonable"), aIrhough they may also arise in orher contexrs, such as removal of architecrural barriers. This arricle gives an overview of the federal laws rhar protect srudents wirh disabilities in colleges and universities, and discusses some of rhe difficult issues rhat arise from the application of these laws.

It should be noted that rhe law also proteees facuJry and other employees with disabilities who work in colleges, but issues thar arise in rhar context are beyond rhe scope of this article.?

The ,Irkansls LIII)er

101. II lo. ilSpring 1999

II. STATUTORY FRAMEWORK

A. Section 504 of the Rehabilitation Act of 19738 1. Who must compl]' Entities, programs and actlvmes that receive federal funding must comply with 504. This includes essentially all institutions of higher education. 2. Basic mandau Section 504 provides elm "[nJo otherwise qualified individual with a disabiliey . . . shall, soldy by reason of his handicap, be excluded from participation in, be denied the benches of, or be subjected (0 discrimination under any program or activiry receiving Federal financial assistance."9 This mandate has been incerprered by courts co require the college or university (Q also provide "reasonable accommodations" to students in order (0 facilitate their participation in the educational program. In addition, colleges and universities acc required [0 incorporate the concept of "least restrictive environment" in their operations. This means that, [Q the degree that is reasonably feasible, students with disabilities must not be segregated from nondisabled students. 3. Who is protected' An "individuaL with a disabiLity" is defined as a person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairmem. lo "Substantially limits" refers to the limitations brought about when the individual's importanr life activities are restricted as [Q the conditions, manner, or duration under which they can be performed in comparison [Q most people. II "Major life activities" include "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."12 The term "individual with a disability" does not include: I. An individual who is cumnll] engaging in illegal use of drugs. However, if the individual has successfully completed a supervised drug rehabilitation program; is participating in a supervised rehabilitation program; or is erroneously regarded as engaging in such use, that individual is protected;]) 2. an individual who is an alcoholic, whose current use of alcohol prevents him

from meeting the academic and technical requirements of the educational program, or whose presence would constitute a direct threat [Q property or safety of omers;14 and 3. an individual on the basis of homosexuality or bisexuality; 15 transvestism; transsexuaJism; pedophilia; exhibitionism; voyeurism; gender identity disorders; 16 compulsive gambling; kleptomania; or pyromania; 17 psychoactive substance use disorders resulting from current use of drugs. IS To be protected under ยง 504, an individual must not only meet the definition of "individual with a disability," but he mUSt also be "otherwise qualified."

4. "Otlurwis. Qualifid" As stated above, ยง 504 provides that no "otherwise qualified individual with a disabiliey" shall be excluded from panicipation in progranlS of an entity that receives federal financial assistance "solely by reason of his handicap."19 In the context of higher education, the regulations for ยง 504 define a "quaLifi~d disab/~d p~rson" as onc who "meets the academic and technical standards requisite to admission or participation in the recipient's educational program or activity."20 "Technical standards" refers to all nonacademic admissions criteria that are essential for participation in the educational program, including physical attributes. The United States Supreme Court first addressed ยง 504 in Soutlunsunz Community Coikg~ v. Davis. 21 In that case, a deaf nursing sehool applicant was found by the colLege to be unable to satisfy the essential requirements of the program and was. therefore, denied admission. The Court held that "raJn otherwise qualified person is one who is able to meet all of a program's requirements in spilt ofhis handicap. "22 The Court concluded that the clinical phase of the nursing program to which Ms. Davis had applied would have to be eliminated, because it would require close. individualized supervision by a nursing instructor in order to ensure the safety of the patiencs. The Court concluded that this elimination would result in a fundamental alteration in the nature of the program that was far more than the modification the regulations required. 23 Therefore, the Court held that a college may deny a student with a disability admission or parcicipacion into its program when substantial modifications or fundamental alterations in the nature of the program would be required in order to permit the student to panjcipate.2~ At the same time, the Court rejected the proposition that an individual

can be presumed to be unqualified simply because he has a disabiliey.25 The Court also stated that an institution of higher education may nor deny admission to a student with a disability on the basis that some modifications or accommodations may be necessary to permit that student to participate in the program. 26 The Coun"s decision in Davis has been interpreted by subsequent case law to mean that in determining whether the individual is "otherwise qualified," the entity receiving federal funding must consider what accommodations can be made to help this individual meet the requirements of the program or activity. The entity must make the accommodations only if they are "reasonable," however. 27 5. uRLnsonab/~ Accommodntjom" The "reasonable accommodation" requirement 28 was developed because simply opening the doors to individuals with disabilities would not ensure equal opportunity for participation. The reasonable accommodations that the college or university is to provide to students with disabilities are to be determined on a case-by-case basis, and may include removing architectural or physical barriers; providing auxiliary aids or services; or modifying policies, practices, and curriculum. Although Akxalld<r v. Choate29 did nor involve a college, it is nonetheless significant, because of the Supreme Coun's discussion of the term "reasonable accommodation." In that case, the Court explained its decision in Davis as an attempt to balance the statutory rights of individuals with disabilities to be integrated into society with the legitimate interest of entities that receive federal funding (in Davis, a college) to preserve the fundamental nature and integrity of their programs. The Coun stated in Akxantkr that the balance struck in Davis required that an otherwise qualified handicapped individual must be provided with meaningful access to the program that the grantee of federal financial assistance offers. In order to ensure that this meaningful access is given, reasonable accommodations in the grantee's program may be necessary.30 The discussion of the concept of "reasonable accommodations" by the First Circuit in "7mu v. Tllfts Ullivmity School of Medicini3 1 is also imponant. W)l1lru involved the issue of "reasonable accommodations" under ยง 504 in the academic context when a student with significant learning disabilities sued his medical school for refus-

fll.ll II. VS,ril~ 1999

TIe ,\rkmll Li~W

ing to accommodate his disabilities by providing multiple choice tests in an alternative format. Mr. Wynne lost because the accommodation of his needs would have imposed an undue hardship on the medical school by requiring it [0 lower its academic standards, thus fundamentally altering the nature of the program. The court stated that in determining whether a student meets the "otherwise qualified" prong of § 504. it is necessary to take into account the extent to which reasonable modifications that will satisfy Ute legitimate interests of both the school and the student are (or are not) available. If they are available, the coUege must explore those alternatives, and must demonstrate that alternative means, their feasibility, cost, and effect on the academic program were considered. If the college then arrives at a rationally justifiable conclusion that the available alternatives would result in lowering Ute academic standards or requiring substantial program alteration, it will be deemed to have met its obligation to seek reasonable accommodation. 32

·Undu< Hardship·

A college (or other recipient of federal funding) need not provide an accommodation to a disabled individual if the accommodation would cause the college "undue hardship."33 An accommodation will be deemed to cause undue hardship if it would a) fundamenrally alter <he nature of <he program;34 b) pose a safety risk to the individual with a disability or to others;35 or c) create an undue administrative or financial burden. The undue hardship limitation adds )jttle to the law, because, almost by definition. an accommodation that caused undue hardship would nOt be reasonable.

B. Americans with Disabilities Act of 199036 Section 504 has protected college Students with disabilities from discrimination since 1973, bur the ADA has unquestionably impacted upon this area by renewing an awareness of the obligations of colleges toward students with disabilities. 1irle II of the ADA37 extends the protection given by § 504 to qualified individuals with disabilities in state and local government services, programs, and activities, including those that do not receive assistance from the federal governmenr. State colleges, therefore, must comply with the mandates ofTirie II. Entities subject to the provisions ofTicle II

nr ,Irkulll Li\\Trr

tol. II ~o. 1/Spril! 1999

were required to have conducted a self-evaluation of their services. policies, and practices by July 23, 1992.38 The self-evaluation had <he goal of idenrifYing any changes needed-from architectural changes to program modifications-and developing a plan for making the changes. Title III of the ADA39 protects individuals wiUt disabilities from discrimination on the basis of a disability by private entities that provide public accommodation. Private colleges, as places of education that open <heir doors to <he public, fall within litIe 1I1.4o Private colleges are not required to undergo a self-evaluation (beyond that which they may have been required to do under § 504 if that statute applies to them) as state colleges are, but they are required to remove architectural barriers to the extem that it is "readily achievable" to do so. The term "readily achievable" is defined as "easi_ ly accomplishable and able to be carried out without much difficulty or expense."41 Ln addition, Title III of the ADA also prohibits discrimination on the basis of a disability in examinations or courses related to application, licensing, or certification for secondary or postsecondary education and professional or trade school. The ADA requires that these examinations and/or courses be offered in an accessible manner or place, or Utat alternative arrangements be made to ensure accessibiliry.42 This provision would apply. for example. to state boards of bar examiners. Issues that are addressed by the ADA more extensively than they are by § 504 are campus transportation systems,43 accessibiliry of facilities,44 and drug testing and substance use and abuse. 4s The ADA's statutory language is more detailed than that of § 504 with regard to the terms "discrimination,"46 "reasonable accommodation,"47 and "undue hardship."48 This more detailed statutory language probably reAeces the judicial imerpretation given to those terms under § 504.

Who must comply?

fu, discussed above, the ADA applies to

state colleges under Title II; to private colleges under lirle Ill; and to emities providing courses and examinations for certification under 1itle 111. 49

2. Basic mondnu The mandate on colleges under the ADA is essemially the same as that under § 504: nondiscrimination plus reasonable accommodation in the least restrictive environment. Under Title II, state colleges may nor

exclude an otherwise qualified individual with a disabiliry50 from any of their programs or services, or otherwise discriminate against an applicant or student with a disability. Under Tide Ill, private colleges, as places of public accommodation, are equally prohibited from discriminating against an individual on the basis of a disability with respect to the full enjoyment of its programs and services. 51 In addition to the nondiscrimination mandate. colleges are required to provide reasonable accommodations, adjustments, or modifications when required. They must also ensure that students with disabilities arc informed about how to access appropriate supportive services. To comply with this requirement, most universities have an office that coordinates these services. UALR. for example. has its office of Disability SuPPOrt Services, whose Direcmr is Ms. Susan Queller. Finally, colleges are required to operate their programs in Ute "least restrictive environment" possible. This means that the use of their facilities muSt be in the most integrated setting, appropriate to the needs of the individual, with Ute assistance of any auxiliary aids and services that may be required by <he individual with the disability. Physical/architectural barriers must be removed in existing facilities, and new construction and alterations must be designed to be accessible.52

3. Who is Protrctrd' Under the ADA, as under § 504, an "individual with a disability" is one who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. 53 The statutory terms have been interpreted as under § 504.

4. Qualifird Individual with a Disability Tide II, like § 504, is designed to protect a "qualified individual with a disability." Tide II defines this term as an individual with a disability who "with or without reasonable modifications to rules, policies, or practices. the removal of architectural, communication, or transportation barriers. or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity."S4 Tide Ill, applicable to private colleges, does not include the language "qualified individual with a disability." Nonetheless, it is clear that privare colleges,

like state colleges, are required to offer modifications only to students who, with the aid of the modifications, can meet the essential requirements of participating in their programs. The definitions of the terms "reasonable accommodations" and "undue hardship" under the ADA are essentially the same as under the Rehabilitation Act. S5 III.

ISSUES THAT ARISE

FROM

THE

A!'PUCATION OF THESE LAws

To determine whether any (or a combination) of these three provisions (§ 504, Title II or Title III) applies, the college or university must go through a four-step analysis: 1. Does the student (or applicant) have a "disability" as defined in § 504 or the ADA' 2. If so, is he "otherwise qualified" with or without reasonable accommodations? 3. What accommodations does he need? 4 Are these accommodations "reasonable," or wouJd they create an undue hardship on the university? The answers to each of these questions bring about a multitude of issues that can be difficuJr co resolve.

1. Dots the student have a disability! In the case of obvious physical disabilities, such as mobility. visual, or hearing impairments, it will normally be easy co determine that the student has a disability under federal law. However, it will be harder co determine whether learning disabiJities, developmental and mental disabilities, health conditions, and alcohol and drug abuse andlor dependency constitute disabilities that will entitle the student to protection. a. If the student discloses his condition-for example, a learning disability-and requests accommodations, the college must ask for a report of a recent and thorough evaluation by a qualified professional. The report must explain the nature of the disability, how that disability manifests itself and affects that student's thought processes andlor ability to function, and the modifications that wilJ be necessary in order for that student to be able to participate in the program. This report and other documemation concerning the student's disability from a qualified professional certifying that the student does have a disability must be updated during the student's association with the college. 56 b. If the student does not disclose his

condition, the college may not make any preadmission inquiries concerning the existence of disabilities. The goal sought in prohibiting preadmission questions about the existence of a disability is co ensure that the admissions decision is made on the basis of the student's ability rather than disability. 57 After the student has been admitted to the program, if faculty andlor administrators suspect that the student may have a disability, the college still may not ask any questions related to a disability, refer the student to the office that coordinates services for students with disabilities, or suggest to the student that he undergo an evaluation. Under these circumstances, it is unclear what the college's obligation. if any. will be. Some courts have held that as long as the college is not specifically informed of the disability, it has no obligation to accommodate. s8 On the other hand, some courtS have held that if the college has any indication that the student may have a disability, it is obligated to look into the possibility of providing accommodations. 59

2. Is the student "Otherwise Qualified'" Students have been found to have a "disability" and, yet, not entitled to protection because they were not "otherwise quaJified." As stated above. under the Rehabilitation Act, a student is "otherwise qualified" if he "meets the academic and technical standards requisite ro admission or participation in the recipient's education program or activity."60 Under the ADA, a "qualified individual with a disability" is someone who, with or without reasonable modifications, meets the essentiaJ eligibility requiremcms of the program. 61 These twO standards stand for the propo· sidon that in considering the admission of a disabled applicant for a program (or the continued enrollment of a disabled enrolled student), the college must determine what academic modifications and adjustments would be required for admission (or continuation in the program). If the modification is substantial, the change in the program is fundamental, or an undue hardship is otherwise imposed on the university by such modification, the applicant (or continuing student) will be deemed unqualified. Determining whether a student is "otherwise qualified," therefore, presents difficult issues. Both § 504 and the ADA prohibit colleges from using eligibility criteria in the admission process that tend to screen our individuals with disabilities, who would oth-

erwise be qualified, from participating in the program or activity, unless such criteria can be shown to be necessary for the program. 62 Section 504 requires that colleges "not make use of any test or criterion ... that has a disproportionate adverse effect on handicapped persons .... "63 An exception ro this pro· hibition is found when the test has been vaJidated as a predicror of success in the educational program, and alternate tests or ctiteria that have a less disproportionate effect are not available.fA An example of eligibility criteria that would impermissibly screen out a student with a certain disability would be to requjre a student with a learning disability, for whom processing foreign languages would be particularly difficuJt, to have taken a foreign language in high school. Another example would be requiring a student who is physically impaired co have participated in athletics as a prerequisite for admission. 65 Requiring applicants to take standardized tests for admission may also present a problem, because these tests may prove to be almost impossible for students with certain learning disabilities.

3. What accommodations does the student need? Determining thc nature of thc accommodations and modifications the student needs will be a critical component in the analysis ro determine whcther the student is "other· wise qualified" ro participate in the program. Southeasttrn Community College v. Davi# and subsequent decisions interpreting it essentially require colleges considering an applicant to detcrmine what modifications and adjustments would be required for admission, and if a modification is substantiaJ or a programmatic change fundamental, the applicant will be considered to not be "otherwise qualified." Stated differencly, if the accommodations and modifications the studenr needs will result in altering the fundamental nature of the program andlor creating an undue hardship on the college or university, the student will not be "otherwise qualified." When students are found to not be "othenvise qualified," courtS generally base their decisions on the fact that the student is nor able to satisfy one or more essential components of the program. Courts are cusromarily highly deferential to the college's determination of what is an "essential component" of the program. 67 Sometimes. courtS will fll1d students nor "otherwise qualified" because their disability is deterContinued on Page 26

1'01. lillo. !/Spriog 1999

The ,lrkaRS3S I,alrjer

WER OF YOUR MEMBERSHIP For more information about member benefits or programs call Barbara Tarkington (50l) 375-4606 or 1-800-609-5668.

LEGISLATIVE PROGRAM

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! I Ue ,Irklllll LiMIer

III. ~ IIll. VS,ril! l!ll

Arkansas IOLTA Foundation โ ข IISSIO;'; I&' ยงTATE~IE;';T

The Foundation's mission is to increase access to justice by funding programs which target low-income populations, that are currently un- or under-served, and by encouraging projects that improve the

1998

Annual Report

administration ofjustice. Of partiwlar interest are proposals from: <&'Legal Services Programs, <&'lAw Schools for Scholarships, and <&'Other programs for special projects that further the Foundation's mission.

IO[TA

IHEREST

I.A\\ HRS' TRI'ST

AC<.OlI~TS

LETTER FROM THE IPRESllDENT 1998

EXECUTiVE DmECTOR

lBOARD OF

..;j

D1RECTORS

Dear Friends, OFFICERS Carolyn Witherspoon PRESIDENT

Janet K. Moore VICE PRESIDENT

Thomas Ray SECRETARY

James D. Gingerich TREASURER

DIRECTORS Sherry P. Bartley LITTLE ROCK

Elaine K. Dumas LITTLE ROCK

Louis B. Jones, Jr. FAYETTEVILLE

The Arkansas IOLTA program traces its existence to 1984 when it was created pursuant to a Per Curiam Order of the Arkansas Supreme Court. Attorneys licensed in Arkansas certify their compliance annually with Rule 1.15, which requires that client funds that are short-term or nominal must be placed in IOLTA trust accounts. The Foundation collects the interest on these accounts and uses these funds to increase access to justice by funding both programs that target the civil legal needs of low-income Arkansans and projects that aid in the administration of justice. The entities and amounts funded by the Foundation in 1998 are contained in this Annual Report. The Foundation sincerely appreciates the support of the Arkansas banking community. Over 260 Arkansas banks participate in the IOLTA program. Most waive fees on these accounts to help the Foundation maximize the amount of grant funds that are available to assist low-income Arkansans with their civil legal problems. A Bank Honor roll appears on the last page of this Annual Report. We urge Arkansas Lawyers to thank their Arkansas bankers for their generosity and support of IOLTA.

Larry Kircher BALD KNOB

Jeanne Sanford BENTON

Margaret M. Staub HELENA

Anna Via DARDANELLE

EX OFFICIO Don Hollingsworth EXECUTIVE DIRECTOR ARKANSAS BAR ASSOCIATION

Some of you may be concerned about the status of IOLTA following the U.s. Supreme Court's opinion in Phillips v. Washington Legal Foundation. The Arkansas IOLTA Foundation requested a legal opinion on the impact of this case on our Arkansas program. That opinion advised the Foundation to continue to operate the program pursuant to Rule 1.15 of the Arkansas Supreme Court. That opinion is consistent with legal opinions rendered in other states concerning their IOLTA programs. Approximately 3,300 Arkansas lawyers and 260 Arkansas banks participate in this worthwhile program that funded over $500,000 in grants in 1998. We appreciate the efforts of each of you to help low-income Arkansans have equal access to the civil justice system in our state.

STAFF Susie Pointer EXECUTIVE DIRECTOR

Reshun Racy ADMINISTRATIVE ASSISTANT

Carolyn Witherspoon President, 1998

Susie Pointer Executive Director

CJHOOL CJHOL lR JH[P UNIVERSITY OF ARKANSAS - SCHOOL OF LAW, FAYETIEVILLE The following law students at the University of Arkansas School of law, Fayetteville, received IaLTA scholarships for fall, 1998: Jason Bramlett received the Arkansas Bankers Association IOLTA Scholarship. He was born in Conway and isa graduate of Springdale High School and the University of Arkansas (B5.B.A., cum laude, Accounting). Tabatha S. Henderson received the Arkansas League of Savings Institutions IOLTA Scholarship. She was born in Conway and is a graduate of Conway High School and the University of Arkansas (B.A., Political Science). Kelly J. Keton received the Arkansas Bar Association IOLTA Scholarship. She was born in Jonesboro and is a graduate of Jonesboro High School and Arkansas State University (B.A., English). Recipients of Arkansas IOLTA Foundation Scholarships are Betty J. Robinson, Jennifer J. Marty and Brian S. Yelvington. Ms. Robinson was born in Camden and is a graduate of Camden High School and the University of Arkansas (B.A., Political Science). Ms. Marty was born in Auburn, New York and graduated form Oklahoma State University (B.S., Agriculture). Mr. Yelvington was born in Blytheville and is a graduate of Sheridan High School and the University of Arkansas at Little Rock (B.S., Economics & Finance). UNIVERSITY OF ARKANSAS AT UTILE ROCK - SCHOOL OF LAW The following law students at the University of Arkansas at little Rock School of law received IOlTA scholarships for fall, '998: David W. Duke received the Arkansas Bankers Association IOLTA Scholarship. graduate of Newport High School and lyon College (B.5., Chemistry and Math).

He was born in Batesville and is a

Pam Epperson received the Arkansas League of Savings Institutions IOLTA Scholarship. She was born in Freona, Texas, and is a graduate of the University of Arkansas at Little Rock (B.A., Criminal Justice). anita Doddy-Johnson received the Arkansas Bar Association IOLTA Scholarship. She was born in Dallas, Texas, and is a graduate of Texas Christian University (B.A., Journalism). Recipients of Arkansas IOLTA Foundation Scholarships are Heather Callaway, Richard Shane Strabala, and Jeremy Wilson. Ms. Callaway was born in Booneville and is a graduate of Booneville High School and Ouachita Baptist University (B.A., Political Science). Mr. Strabala was born in Stuttgart and is a graduate of Stuttgart High School and the University of Arkansas (B.S.A., Environmental Science). Mr. Wilson was born in Batesville and is a graduate of Rural Special High School and the University of Arkansas (B.S., Business Administration).

UNIVERSITY OF ARKANSAS SCHOOL OF LAW

UNIVERSITY OF ARKANSAS AT LITTLE ROCK

FAYETTEVILLE

SCHOOL OF LAW

I wanted to take this opportunity to thank the 10LTA Foundation for awarding me a scholarship for the 1998/1999 academic school year. The scholarship money is grentlyappreciated. ] have always wanted to pursue a career in law, and after I graduated from college I saw that dream start to tum into reality. As we all know, alega] education can be costly, but thanks to the help of the foundation that burden will be reduced greatly. On top of thanking thefoundationfor its generosity, I would like to offer you my pledge tlwt I will do my best in law school, and hopefully tl/m out to be a competent and ethical attorney.

11 was such a wonderful surprise to open my award letter and discover that Ihad been awarded the 10LTA scholarship. I can't begin to tell you how humbled I am to receive it. A huge burden has been lifted thanks to the kind generosity ofthe 10LTA Foundation.

Sincerely, Jason Bramlett

I am honored that thefoundation has the faith in me to award me this scholarship. Not only does it ease tilejinancial bl/rden ofa two-student household, but it is a reminder that this is more than a worthy goal. As] work diligently this fall, I will constantly be reminded of the support] am receiving from YOl/r fOlll/dation. Thank YOI/ so much for the scholarship, as well as the vote of confidence that comes with it. Sincerely, Heather R. Callaway

1998 JFINANeI L I JFOIRMATRON*

INCOME IOLTAAccounts Interest earned on Interest earned on Interest earned on Interest earned on

$780,263.83 2,078.06 118.09 5,512.64 47,422.02

operating account unemployment account money market account

CD.'s

EXPENSES

$637,230.25

Total Expenses for Period

I GRANT •

DKSTRH~UTKON

PAJ

LEGAL AID

•

L AKD TO Tl-][E POOR, 199c f-HGHLKGHTS

CENTER FOR ARKANSAS LEGAL SERVICES (Center) $153,455 Providing quality legal representation to low-income Arkansans in Arkansas, Ashley, Bradley, Calhoun, Chicot, Clark, Cleveland, Columbia, Conway, Dallas, Desha, Drew, Faulkner, Garland, Grant, Hot Springs, Howard, Jefferson, Lincoln, Lonoke, Montgomery, Nevada, Ouachita, Perry, Pike, Polk, Prairie, Pulaski, Saline, Sevier, Union and White counties. On October 14, 1998, a fire destroyed the Little Rock offices of the Center. Much energy and resources of the Center staff were focused on rebuilding the organization while successfully maintaining the same level of civil legal services delivery to the poor and elderly in their 32-county service area.

LEGAL SERVICES OF NORTHEAST ARKANSAS (LSNEA) $39,374 Providing quality legal representation to low-income Arkansans in Clay, Craighead, Greene, Independence, Jackson, Lawrence, Poinsett, Randolph, Sharp and Woodruff counties. LSNEA emphasized expediting legal services to clients during 1998 with phone consultations, hotline services, and pro se pleadings.

'Audit of the Foundation's books is scheduled for the second week in April. Final audited figures will be available from the Foundation's office after May 15, 1999. If you would like a copy, please call the Foundation office at 376-1801 or 1-800-449-6560. The unaudited information presented above is based on the Treasurer's Report for January 1 to December 31, 1998.

EAST TEXAS LEGAL SERVICES (ETLS) $14,807 Providing quality legal representation to low-income Arkansans in Hempstead, Lafayette, Little River and Miller counties. In addition to client cases, ETLS provided workshops on poverty law issues to Southwest Arkansas Counseling and Mental Health Center, Suspected Child Abuse and Neglect (SCAN), Battered Women's Shelter, and the Southwest Arkansas Development Council.

$113,006.25 524,224.00

Administrative expenses Grant disbursements

EAST ARKANSAS LEGAL SERVICES (EALS) $50,479 Providing quality legal representation to low-income Arkansans in Crittenden, Cross, Lee, Mississippi, Monroe, Phillips and St. Francis counties. In addition to client cases, the program assisted five community organizations to incorporate and obtain tax-exempt status. Among these were a youth center, ajob training organization and a homeless shelter. In October EALS instituted a Hotline system for clients in Mississippi County, increasing the average number of clients served by 15 per week.

$835,394.64

Total Revenue for Period

1998 ARKANSAS [OLTA GRANT REC[}P[E TS

HJ[§TORY

OZARK LEGAL SERVICES (OLS) $46,103 Providing quality legal representation to low-income Arkansans in Baxter, Benton, Boone, Carroll, Cleburne, Fulton, Izard, Madison, Marion, Newton, Searcy, Stone and Van Buren counties. OLS received a grant from the U.S. Department of Justice Civil Legal Assistance program. The funds were used in part to hire an attorney to work with the Battered Women's Shelters in Harrison on domestic violence issues.

WESTERN ARKANSAS LEGAL SERVICES (WALS) $32,306 Providing quality legal representation to low-income Arkansans in Crawford, Franklin, Johnson, Logan, Pope, Scott, Sebastian and Yell counties. WALS celebrated its 20th anniversary in October and the Sebastian County Bar Association dedicated its October meeting to Western Arkansas Legal Services. ARKANSAS VOLUNTEER LAWYERS FOR THE ELDERLY (AVLE) $15,876 AVLE is a joint venture of the Arkansas Bar Association, six Legal Services prograrns, and the Department of Human Services, Division of Aging and Adult Services. The AVLE staff works closely with the Legal Services programs and the Area Agencies on Aging to insure older Arkansans get the legal representation they need. In 1998, over 633 private practice lawyers volunteered to represent senior citizens that were unable to afford a lawyer. Over 500 low-income elderly Arkansans were assisted with their civil legal problems through the efforts of these volunteer attorneys.

LEGAL ED

$450,000 $400,000 $350,000 $300,000 $250,000

EAST ARKANSAS LEGAL SERVICES PRO BONO PANEL $10,248 This newly formed pro bono panel assists low-income clients of East Arkansas Legal Services in seven counties. Approximately 31 private attorneys participated in this pro bono program, handling primarily domestic relations cases.

$200,000 $150,000 $100,000

1987

1988

1989

1990

1991

1992

1993

1994

CollafJorative Efforts ~The Centerfor Arkansas Legal Services continued its Domestic Violence Project in 1998. This project is in partnership with Advocates for Battered Women (ABW) and is funded in part by a Victims ofCrime Act (VOCA) grant. A staff attorney from the Center handles emergency legal needs ofvictims ofdomestic violence referred by ABW. The attorney assists clients who apply for Orders ofProtection and represents these same clients at hearings ifthere are issues ofchild custody, child support or visitation. The project aided 181 domestic violence victims and their children at Court hearings. Approximately one-third of those assisted also applied to the Center for additional legal assistance and representation. The staffattorney also presents community outreach programs on issues ofdomestic violence. ~Ozark Legal Services (OLS) obtained a grant of $50,000 in 1998 from the U.S. Department ofJustice Civil Legal Assistance program. The grant was a collaborative effort between OLS and the Battered Women's Shelters in Harrison. Grant funds will be used primarily to hire and train an attorney to work with the Shelters on domestic violence legal issues in the Harrison service area.

~Eastern

Arkansas Legal Services (EALS) worked with the Arkansas Development Finance Authority (ADFA) to present homebuyer assistance classes. Participants whose income falls within certain guidelines may attend the classes. Upon completion of 10 hours of classroom instruction on issues involved in buying ahome, the participant is issued an ADFA certificate worth $3,000 to be used toward the purchase ofan existing home. A total of 155 families attending EALS homebuyer assistance classes in 1997 did subsequently purchase homes.

1995

1996

1997

1998

EAST TEXAS LEGAL SERVICES PRO BONO PANEL $2,772 This pro bono panel assists Arkansas low-income clients with civil legal needs in four counties in Southwest Arkansas. ETLS works closely with the Texarkana Bar Association and the Southwest Arkansas Bar Association.

Volunteer Attorneys Assist Clients "For The Good" ~Sarah,

a Washington County disabled woman with two disabled children, came to Ozark Legal Services as a defendant in aforeclosure action. Because ofa deathbed wish by her mother, she had taken ownership ofsome land on which her trailer, her sister's trailer, and her brother's trailer sat. In exchange for the deed she had allowed her disabled sister to take out a loan secured by the land and our client's signature, in order to have water and gas provided to the sister. The sister then defaulted on the loan. The volunteer attorney was able to obtain dismissal of the action because of an incorrect description in the complaint, and he arranged a payment plan on the loan so that the homes and land of the three families would be saved.

~Bertha's

house burned. She called the Center for Arkansas Legal Services with problems she was having with her insurance company, her mortgage company, and the company that was repairing her house. After the fire, she contacted the insurance company to make a claim. The insurance company determined that $68,000 was needed for reconstruction and repair expenses of the home and for replacement of personal property and living expenses. The insurance company hired a local company to rebuild and repair the damaged areas ofher home. Then the insurance company issued ajoint check to the client and her mortgage holder. The checkfailed to break out the amount for personal property replacement and living expenses. The fire had displaced the client and herfamily from their home, and they were living in a motel. The mortgage company refused to issue any money to the client, but instead paid the entire amount over to the home repair company. The home was not repaired in a satisfactory manner; in fact, the repair company did further damage to the client's home, including damage to her plumbing. The Center referred the client to a VOCALS attorney, who filed lawsuit against the insurance, mortgage and home repair companies.

~Kathy came to Legal Services ofNortheast Arkansas becauseofcontinu-

ing domestic problems. She and her husband separated and then reconciled. Some time after that, he took Kathy out on agravel road, grabbed her and started choking her. He took her back to town, made her clean out her savings account, and then give him the money. Her husband took her rings, sold them, and went to a crack house. The next day her husband came to their house and threatened to kill her. She was referred to avolunteer attorney ofthe Equal Access to Justice Panel and that attorney is presently obtaining a divorce for her.

*Wl1ile all these stories are true, the names are fictitious to protect client identity.

EQUAL ACCESS TO JUSTICE PRO BONO PANEL $6,972 This pro bono panel is a volunteer entity of Legal Services of Northeast Arkansas. The panel provides quality legal services to poor people in ten Northeast Arkansas counties. Approxirnately 90 private attorneys served as volunteers in 1998. OZARK LEGAL SERVICES PRO BONO PANEL $8,484 The 1991 winner of the distinguished Harrison Tweed Award,' this panel is a joint venture between Ozark Legal Services and fourteen county bar associations in Northwest Arkansas. The goal is to expand the availability of legal assistance to a larger number of poor people in the area. In 1998, over 200 referrals were made to volunteer attorneys on this panel. Twenty-four new attorneys and two new volunteer court reporters were recruited. The latter handled depositions in pro bono cases. VOLUNTEER ATIORNEY PROJECT (VAP) $6,300 VAP is a joint venture of the Sebastian and Crawford County Bar Associations and is administered by staff of Western Arkansas Legal Services. The program exists to provide free legal representation to poor people in the two county area. Currently, over 115 volunteer lawyers provide free legal assistance to poor people in these communities. In 1998, the VAP panel assisted approximately 165 lowincome clients. Nine new attorneys were recruited as volunteers for the panel. VOLUNTEERS' ORGANIZATION, CENTER FOR AR LEGAL SERVICES (VOCALS) $33,348 VOCALS won the prestigious Harrison Tweed Award' in 1985. The program was started in 1982 by the Pulaski County Bar Association in an effort to help Center for Arkansas Legal Services (the Center, formerly CALS) meet the legal needs of poor people in Pulaski County. Through a cooperative venture between eight central Arkansas bar associations, individual attorneys and the Center, over 750 volunteer lawyers provide free legal assistance to poor people in central Arkansas. During 1998 volunteer attorneys assisted VOCALS staff in presenting "Words to the Wise" preventive legal education clinics for senior citizens at eight locations throughout the state. These workshops informed senior citizens about wills, living wills and powers of attorney.

PROJE PI' TO ][MPROVE THE DMJ[N][STRATlf N O][i' ,VllJSTKCE MOCK TRIAL COMPETITION $9,000 The Youth Education Committee of the Arkansas Bar Association sponsored the 1997-98 Arkansas High School Mock Trial Program. This annual statewide competition educates high school students aboutthe law and how the legal systern functions. Over 350 students and teachers and about 50 lawyers participated in the Arkansas program. The State Champions, an all-9th grade team from Pulaski Heights Junior High School, attended the national competition in Albuquerque, New Mexico. Hunter Harrison, a student attorney for the team, won an "Outstanding Lawyer" award, given to only 8 students out of 42 teams. ARKANSAS ALTERNATIVE DISPUTE RESOLUTION COMMISSION $28,700 The Commission developed a Small Claims Mediation program that trained Municipal Judges, their staff, and volunteer mediators to help resolve claims using alternative dispute resolution (ADR) methods. This is an on-going pilot project that will use volunteer mediators to move cases appropriate for conflict resolution more quickly and efficiently through the court system. "HE LOVES ME NOT" A DATING VIOLENCE EDUCATIONAL PROGRAM $10,000 The Youth Education Committee of the Arkansas Bar Association produced this video film to educate high school students about domestic and dating abuse. The film, which also emphasizes awareness and prevention, will be distributed to secondary schools, youth groups, and prosecutors' offices. "The Harrison Tweed Award is given by the American Bar Association annually to the best pro bono programs in the United States.

Legal Services Help People Who Need Help ~Mary, whose daughter *Sammie was 9 years old, contacted

the Centerfor Arkansas Legal Services (Center) for help because she was being evicted. She had lost her job when the company she worked for closed its plant in Arkansas. She had not been able tofind another job and her unemployment benefits had run out. However, her daughter had a trustfund that was established when herfather was killed in an automobile accident. A Center attorney petitioned the probate court for the release of $1,200 to pay rent, utilities and other basic necessities. The petition was granted. The order also allowed the client to withdraw up to $1,200 each year from the trust fund. The eviction was stopped, and the client and her daughter were able to remain in their home.

~*Thomas, a 53 year old Newton County man disabled as a result

ofafall during employment several years earlier, was denied food stamps and Medicaid by the State. He had appliedfor Social Security disability, but often the time necessary to determine that claim can take over a year. An attorney with Ozark Legal Services successfully represented the man in administrative appeals and was able to secure hisfood stamps and Medicaid eligibility while his disability claim was pending.

~Joe

came to Western Arkansas Legal Services (WALS) needing to obtain a temporary guardianship over his wife. Joe reported that recently *Betty, his wife of many years, was diagnosed with kidney failure. Her condition had deteriorated to the point that she would need dialysis within a week or die. Betty also had been suffering from some mental problems and refused the necessary treatment. The doctors advised Joe to seek guardianship. The attorney confirmed all of this information with the medical professionals treating Betty. The attorney drafted the documents, obtained the required statement from Betty's treating physician, and appeared before the judge who signed the temporary guardianship. This was all accomplished within a matter of days. Betty immediately began receiving dialysis. Several months later both Joe and Betty visited the attorney and both thanked the attorney for her work.

] 998 '[aLT. \ B.\.'

HOi 'OR ROLL

The Arkansas IOLTA Foundation gives special recognition and thanks to the following financial institutions For paying an average interest rate of 2.0% or higher AND waiving service charges on attorney IOLTA accounts: American State Bank, Charleston Community First Bank, Harrison First National Bank of Lawrence County Pinnacle Bank, UnJe Rock American State Bank, Jonesboro Diamond State Bank, Murfreesboro Firsl National Bank of Paris Pocahonlas Federal Savings Arkansas NahOnal Bank, Bentonvine Diamond State Bank, Nashville First Security 8an~ Searcy Portland Bank Bank of Augusta Eudora Bank First State Ban~ Crossett Regiom Bank. Benton Bank of Dardanelle Farmers Bank. Greenwood First State Bank. lonoke Regions Bank. Unle Rock Bank of Elkins Farmers Bank, Hamburg First State Bank of DeQueen Regions Bank, Morrilton Bank of England Farmers & Merchants Bank, Stuttgarl First United Bank - Hazen Division Regions Ban~ Rogers 8.1nk 01 Eurek.1 Spnngs F<lel;~ National BanI, Wos' Memph. Un;le<! Bank, Siullgart Regions Bank, RusselMI~ Bank of Holly Grove Fif5t Bank, Texarkana Forrest City Bank River Valley Bank, Russellville Bank of Lake Village First B.lnk of Arkansas, Jonesboro Greers Ferry Lake Bank River Valley Bank & Trust. Barling Bank of LlOcoin First Bank of Arkansas, Trumann Heartland Community Bank, Monticello ScOll County Bank, Waldron Bank of utile Rock First Bank of Soulh Arkansas, Camden Hibernia National Bank, New Orleans Simmons First Bank, Dumas Bank of Montgomery County, Mlld<! First Commercial Bank Horizon Bank, Arkadelphia Sim~ First Bank, Lake Vinage Bank of Mountain VieW (now Regions Bank) Horizon Bank, Hot Springs Simmons First Bank, Searcy Bank of North Arkansas, Melbourne First Community Bank. Conway Horizon Bank, Magno~a Si'rrnoos Fi5I Bank of Noohv.-est Arknas, ~ Bank of Prescon First Community Bank. Pocahontas Horizon Bank, Mal'l'ern SouthBank, Blythe\'ille Bank of Rogers First Delta Bank, Tyronza Horizon Bank, Sheridan SouthBank, Manila Bank of Salem First Fil'lilncial Bank, El Dorado Madisoo Bank &Trus!, Kingston SoothBank, Osceold Bank of Star Gty First Jackson\ine Bank Malvern National Bank Soulheast Arkansas Bank, Hamburg Bank of Trumann First National Bank, Ashdown Marked Tree Bank Superior Federal Bank. Ft Smith Bank ofTuckennan First National Bank, Crossett McGehee Bank Union Bank & Trus!, Monticello Bank of Waldron First National Bank, DeQueen Mercantile Bank. Conway Union Planters Bank, Clinton Gtizem Bank. Marion First National Bank, EI Dorado Mercantile Bank. Heber Springs Union Planters Bank, Des Atc Gtizens Bank & TM!, Van Buren First National Ban~ Hope Mercantile B.lnk, North little Rock Union PL'lnters Bank. MarshaM Citizens National Bank, Nashville Firsl National Bank, Magnolia Mercantile Bank of Arkansas, Morrillon Union Planters Bank, Newport Otizens State Bank, Bald Knob First Naliooal Bank. Marianna Merchants & Planters Bank. Camden Union Planters Bank. Paragould Oty National Bank, Ft Smith First National Bank, McGehee Merchants & Planters Bank, Clarendon UOIon Planters Bank of Northeast Arkansas, Hardy Commercial Bank. Alma Fir~t National Bank. Mena MNB Mah:ern National Bank Union Planters Bank of Northea~l Commercial Bank & Tru~!, MontX:e11o First ational Bank, Paragould National Bank of Commerce, EI Dorado Arkansas. Jonesboro Commercial Nahona! Bank, Texarkana First National Bank, Springdale Newport Federal Savings Bank Union Planters Bank of Northeast Community Bank, Fayetteville First National Bank, Wynoe OneBank, liule Rock Arkansas, Mammoth Springs CommuOlty Bank of Cabot First Nalional Bank of Eastern Arkansas, Perry County Bank. Perryville Union Plantl'fS Bank of Northeast Arkansas, Newport Community Bank of Jacksonville Forrest City Pine Bluff National Bank Union Planters Bank of Northeast Arkansas, Re<:tor

ro.,

A special thank you to the Following financial institutions for paying interest AND waiving service charges on aNomer IOLTA accounts: _ Alliance Bank, Hot Springs Decalur State Bank First State Bank, Conway Regions Bank, El Dorado ~s Bank, Jonesboro Deposil Guaranlee/First American, Jackson, Miss. First State Bank, Warren Regions Bank, Fordyce American Slate 8.lnk, Osceola Farmers Bank & Tru5!, BlytheviUe First Western Bank, Rogers Regions Bank, Nashville Bank of Arkansas, Fayellcville Farmers Bank & Trust,. Camden Fordyce Bank & TruM Simmon5 First Bank, Jonesboro Bank of Cave Oty Farmers Bank &TM!, Clarks..ille Heartlaod Community Bank, Camden Simmons First Bank of Arkansas, RusseUville Bank of Delight, Nevada Co. Branch Farmers Bank &Trus~ Magnolia Heber Springs State Bank Simmons First National Bank, Pine Bluff Bank of Fayelleville First Arkansas Valley Bank, Dardanelle Helena National Bank Sm.x:kover Stale Bank Bank of GIenMod First Bank of Arkansas, Wynne Merchants & Planters Bank. Newport Soulhern State Bank. Malvern Bank of Harrisburg First Community Bank, Balesville Metropolitan National Bank, Liale Rock Springdale Bank & Trust Bank 01 Pocahontas filsI C""""'""Y Bot 01500.... M.nas, DenooII M~South Bank, lonosbo.. The Arl<.1n... Bank 01 Balewil~ Bank of the OZarKS, Harrisoo First Federal Bank of Arkansas, Harrison Nalional Bank of Arkansas, North Uttle Rock The Capital Bank, Linle Rock Bank of the Ozarks, Jasper First Federal Bank of Arkansas, Mountain Home Peoples Bank. Paragould TrustBank, Mountain Home Bank of the Ozarks, Uttle Rock First ational Bank, DeWiu Peoples Bank & lo'ln, le\\isville Union Bank of Benton Bank of the Ozarks, Ozark First National Bank, Fl Smith Piggotl State B.lnk Union Bank of Mena Bank of the Ozarks, Van Buren First Nalional Bank, Helena Planters Bank. Osceola Union Planters Bank, Forrest City Bank of YeIJ\.iJle fltSl National Bank. Mountain Home Pulaski Bank & TMt, Utile Rock Union Planters Bank, Osceola Central Bank & Trust lillIe Rod First NaUonal Bank, Siloam Springs Quail Creek Bank, Oklahoma Gty Union Planters Bank, West Helena Citizens Bank, Batesville First National Bank of Hunlsville Regions Bank, Clarksville Union Planters Bank. We5t Memphis Otizens Bank, Booneville First Nalional Bank of lewisvlne Regions 8.lnk. Clinton United Bank, Springdale Cleburne County Bank, Heber Springs First Service Bank, Clinton Regions Bank, Comvay Warren Bank & Trust Warren Thank you to these other participating IOLTA banks for paying interesl: _

Arkansas Bank, Walnut Ridge Arkansa5 State Bank. Paris Arkansas Slate Bank, Siloam Springs Bank of Amity Bank of Bentonville Bank of McCrOl)' Bank of Rison Caddo First National Bank. Glenwood Charter State Bank. Beebe Glizens First Bank, Atbdelphia (now Regions Bank) Citizens First Bank, Eureka Springs Citizens NatIOnal Bank, Hope Community First Ban~ Eureka Springs Coming Savings & loan, Coming Cross County Bank, Wynoe Danville State Bank

Elk Horn Bank & Trust, Arkadelphia Farmers & Merchants Bank, Prairie Grove Federal Savings Bank. Utile Rock Federal Savings Bank, Rogers First Arvest Bank, Benyville First Eurekd Springs Bank Firsl Federal Bank of Arkansas, Bentonville First Federal Bank of ArkanSil5, 8erJyville First Federal Bank of Arkansas, Fayetteville First Federal Bank of Arkansas, Rogers First National Bank. Ash Flat First National Bank, Berryv;lle First National Bank, Blytheville First National Bank, Marsha. First National Bank, Rogers First Nalional Bank of Sharp County, Melbourne

First5e<:urity Bank. Heber Springs First United Bank, Carli51e Heartland Community Bank, lillie Rod Mercantile Bank, Hot Springs Mercantile Bank of Arkansas, Van Buren Merchants & Farmer!i Bank, Dumas McIlroy Bank & Trust, Fayelleville National Bank of Commerce, Memphis NationsBank Peoples Bank &Trust Mountain Home Planters & Stockmen Bank. Pocahonta5 Regions Bank. Arkadelphia Regions Bank, Benlon Regions Bank. Oaoo\ille Regions Bank, Conway Regions Bank. EJ Dorado

Regions Bank, Fordyce Regiom Bank, Harrison RegJOn' Bank, HOI Ipnngs Regions Bank, Jonesboro Regions Bank. Morrilton Regions Bank, Nash"l~ Regions Bank, Rogers Regions Bank, RLJ"elMl~ Regions Bank, Searcy Regions Bank, Texarkana Regions Bank, West Memph;s Simmons First Bank. Dermott State First National Bank, Ashdown Unico Bank, Paragould Union Planters Bank, Marion

This listing is based on interest rates reported to the Foundation by individual banks in 1998.

IN THE ARKANSAS BARASSOCIATION HANDBOOKS

PUBLICATIONS FREE TO MEMBERS

MEMBERS RECEIVE A SPECIAL DISCOUNT

• The NewsBufletin

• The Arkansas Lawyer

Ten practice handbooks on CD-ROM from LOIS and in ptint and disk from this Association. The 1998 version of the Arkansas Form Book is now available. To order, call Diane at the Association at 501-3754606 for print or disk versions or call LOIS at 1-800364-2512 for the CD-ROM version.

• Legislative Summary From the Hi" • Guide to Arkansas Statute of Limitations • Annual Membership Directory • The Arkamas Law Review • The UALR Law Review Brochures on Law-Related Topics are available for members to share with clients or civic groups.

DELIVERY SERVICE ADVISORY ETHICS OPINIONS UPS gives Arkansas Bar Association members discounts and quick response time. Call 800-325-7000 and identifY yourself as a member of the Arkansas Bar Association, or use account #CP290001685.

CREDIT CARD PROGRAM

It's not always black and white. In the practice of law, there's a lot of gray. Your Association's Professional Ethics and Grievance Committee can help. Within specific guidelines, the Committee will issue an opinion on the member's proposed conduct. There is an administrative charge of $50. IMPROVING THE LEGAL SYSTEM

RETIREMENT This Association has endorsed the ABA Members Retirement Program offering retirement plans and comprehensive support services to law firms and sole practitioners. Call 800-826-8901 or visit the website at http://abra.ris.ssga.com

The Arkansas Bar Association has historically worked to secure adequate funding of the court system, to revise outdated laws, and to provide needed legal information to the public. Association members do this through the legislative program, Sections and Committees, the Association's Mock Trial Program, Young Lawyers Section's projecrs, and special studies. LEXIS-NEXIS Online legal research from Lexis-Nexis is discounted for members. Look for new "Lexis-Nexis Associarion Rewards" Benefit Program.

ALLTEL MOBILE Call

Jeff Flowers at 501-905-7412 or 501-680-

5055 for discounts on services and equipment.

I -800-356-6548 ext.

I 178. COMING SOON•••

"Find a Lawyer" and "E-mail"

\01.1110.2fSpriog 1999

The .Irkansas LallIer 1a

Continued from Page 23

mined to pose a direct threat co safety of the srudem and society ar large. This is particularly so when the srudem is applying for admission to a program in a health-related profession. 68 Generally speaking, however, the accommoclacions or adjustmencs students wil1 need will be considered "reasonable." These

accommodations are divided in two broad categories: architectural modifications co allow physical access, and program modificadons. Architectural modifications are not as difficult (0 address, and are nO[ an issue as often, as program modifications. This is so because § 504 has required barrier removal since 1973, because lide II of me ADA required entities falling under its mandates co undergo and finish a process of self-eval-

uuion by 1993

determine which struc-

rural changes were needed, and because Tide III of the ADA requires entities falling under its mandate to architecturally modify their facilities to permit easy access to Students with physical disabilities. Moreover, the cost of such modifications is purely economic, and relatively easy to assess. Program modifications, by contrast, are frequently problematic. They must be determined on a case by case basis, special technological equipment is often needed, and individual faculty members may oppose the adjustments requested by the student. Program modifications are divided into two categories: curricular modifications and auxiliary aids and services. Examples of curricular modifications are light course loads; reduction, subsritution, waiver or adaptation of some courses; exam modifications (extra time, differcnt format, separate room or eX[fa rest time); extension of time to complete assignments; extension of time allowed for degrec completion; and permission to tape record classes. Generally, these curricular modifications do not involve outof-pocket expenses, but may involve some administrative and operational COSts. The curricuJar modifications needed by each student are determined based on the documentation received from the professional(s} who tested the student and determined the existence of a disability. The implementation of these curricular modifications is coordinated by the office in the college responsible for providing services to s£udents with disabilities. The modifications are made in consultation with faculty whose courses may be affected, school administrators, and the studenr.

11 The MklDll! Lallyer 1'01. jj 10. VSpring U99

The expense in providing auxiliary aids and services to students with disabilities, unlike curricular modifications, can be substantial. Regulations implementing § 504 require colleges to "take such steps as are necessary to ensure that no disabled student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination. .. because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills. "69 Examples of auxiliary aids and services include providing help in ordering books; taping lectures, texts, and/or tests; giving tests orally; providing tests in Braille; providing tests in large print; providing a distraction-free room for tests; helping find notetakers; and providing assistive listening devices, sign language interpreters, readers, and classroom equipment. In terms of financial responsibility for the significant expenditures that may be required in making reasonable accommodation, it is clear that the student is nm required to bear the expense, even if financially able to do so. The expenses will be borne either by the state Rehabilitation Services Administration (if the smdenr is eligible for state-provided services) or by the college. 70

4. Will tJuu accommodations and modificatiom aU/it undue hardship on the univrrsity? If the accommodations the srudenr requires will be tOO expensive or toO disruptive administratively or operationally, the accommodations are unreasonable in that they would create an undue burden on the school. Section 504 does not require entities falling under its mandate to provide accommodations that wouJd cause "undue financial or administrative burdens."7l The ADA similarly states that only accommodations that are "readily achievable," that is, those that can be implemented without much difficulty or expense are required. Under the ADA, faCtors mat would be considered would be the nature and COSt of the accommodation, the overall financial resources of the program, and the impact of the action on the program. 71 Obviously, the lega] tests involved provide ample room for disagreement.

IV.

CoNCLUSION

Federal law protecting students with disabilities affects the practices of virtually aU colleges. Faculty and administ"rators should

not be skeptical or intimidated, however. The basic, underlying premise of the law must be understood: as a society, we want to open the doors of colleges to students with disabilities who, with reasonable modifications, can participate in educational programs, and become productive members of socie£y. The law in this area continues to evolve, and uncertainty may diminish over time. It will never disappear, however. Like the concept of "reasonableness" in tOrt law, vague terms such as "reasonable accommodation," "otherwise qualified individual with a disability," "undue hardship," "readily achievable," and reference to a college's resources and the impact of a modification on its program, provide anything but a bright-line rule. Nonetheless, present law is sufficiently dear to enable colJeges to determine their legal responsibilities tOward students with disabilities in most cases. (0Endnores J. 42 V.S.c. §§ 12101-12213. 2. Laura F. Rothstein, DISABILITIES AND THE LAW 184 (I992) (ciring Profile of Handic."lpped Students in Post-Secondary Education, 1987, Department of Edueation, Doc. No. 065-000-00375-9). 3. 29 V.S.c. § 794. 4. VALR Disabiliry Support Services 1997-98 Data ummary Report, Educational and Student Services Division, Universil)' of Arkansas at Little Rock, distributed Spring 1999. The disabilities ofstudents served by the Disability Support Services at UALR are as follows: Learning disabilities 35%; medical impairments 2I%; mobility impairments 16%; psychological impairments 11 %i visual impairments 9%; and hearing impairments 8%. !d. 1997-98 Primary Disability Distribution. 5. 20 V.S.c. §§ 14OO-146J. 6. Laura E RothStein, DISABILITY LAW, Cas<s, Materials, Problems 509 (2d <d. 1998). 7. F2cuhy and employees with dis2bilities working in institutions of higher education aT( protected from employment discrimination on the basis of their disabiliry by § 504 of the Rehabilitarion Act of 1973, 29 V.S.c. § 794 (1973) and Tide I of the Americans with Disabilities Act of 1990, 42 V.s.c. §§ 12111-12117. 8. 29 V.S.C § 794. 9. /d. 10. /d. § 706(8)(B). II. 29 C.ER. § 1630.2(j); § 35.I04(1)(i). 12. 34 C.ER. § 104.3(j)(2)(ii). 13. /d. (C)(i) and (ii). 14. Id. (iv). Su ~.g., And~rso" v. Univ~rsity of Wiscomin, 841 F.2d 737 (7th Cir. 1988), in

which a studenr who was an alcoholic was given two opportunities at rehabilitation but still failed to meet the academic stan~ dards to continue. He was then expelled. He sued the University of Wisconsin, alleging that it had violated § 504 of the Rehabilitation Act. The court held that because he was unable to meet the academic standards of the school oflaw, he was nOt a qualified individual with a disability, and, therefore, the university had not violated § 504 when it denied him cominued enrollment.

15. 29 U.s.c. § 706 (E)(ii). 16. Id. (F)(i). 17. Id. (ii). 18. Id.. (iii). 19. 29 U.S.c. § 794. 20. 34 C.F.R. § 104.3(k)(3). 21. 442 U.S. 397 (1979). 22. Id. at 407 (,mph",i, add,d). 23. Id. at 410. 24. Id.. at 413. 25. Id. at 405. 26. ld. at 412-13.

50. 42 U.S.c. § 12132. 51. Id.. § 12182(a). 52. 42 U.S.c. §§ 12182 and 12182(b)(I)(B). 53. ld. § 12102(2). Th, ADA exclud" ftom protection the same individuals excluded under § 504 of the Rehabilitation Act of 1973. Set supra text accompanying notes

10-15. 54. ld. § 12131(2). 55. Su supra text accompanying notes 28-32. 56. AU documentation concerning the student's disability is to be kept confidential, except for adminisrrarors, faculty affected, and staff from the office coordinating services for stu~ dents with disabilities. 57. Bonnie Poitras Tucker, FEDERAL DlS~

ABIUTY LAW in a Nurshell208 (1998). 58. Su, '.g., Salvador v. &//. 622 F. Supp. 438

(N.D. 1II. 1985). aff'd. 800 F.2d 97 (7th

59.

27. S~~, ~.g. Akxander v. Choau, 469 U.S. 287

(1985). 28. 34 C.F.R. § 104.12. 29. 469 U.S. 287 (1985). 30. ld. at 301. 31. 976 F.2d 791 (lstCiL 1991). 32. ld. at 794-95. 33. 34 C.F.R. § 104. I2(a).

34. Su, ~.g., W]7l1U v. Tufts Univ. 5ch. of Mtdicine, 976 F.2d 791 (1st Cit. 1992); South~astnn

Community Co/kg~ v. Davis,

442 U.S. 397 (1979). Su also '"pra text accompanying notes 21-23. 35. Su, '.g.• Do< v. Nnu York Univ., 666 F.2d

761 (2d CiL 1981). in which a m,dical school student who suffered from memal illness was denied admission to the pro~ gram. The university successfully argued that it had denied admission to the student Out of concern for the safety of the public.

36. 42 37. Id. 38. 28 39. 42

60. 61.

U.S.c. §§ 12101-12213. §§ 12131-12161. C.ER. § 35.205. U.s.c. §§ 12181-12189.

40. Title III of the ADA does not apply to pri~ vate colleges a.nd universities chat are con~ trolled and operated by religious entities.

41. 28 C.ER. § 36.304. 42. 42 U.S.c.§ 12189. 43. ld. §§ 12141-12165; 27 C.ER § 3725. 44. Id.. § 12183. 45. 28 C.ER. § 35.131. 46. 42 U.S.c. § 12132. 47. Id. § 12111 (9)(A) and (8). 48. ld. (IO)(A) and (B). 49. When determining which Title of the ADA will apply in a parricular case, it should be undersrood that § 504 almost certainly will also apply, because most colleges and uni~ versities receive federal funding. Su Rothstein, wpm nOte 2, ac 348.

62.

63. 64. 65.

66. 67.

Cir. 1986), in which the court held that the institution had not violated § 504, because it had not been informed that the studenr had a learning disability. S~t, t.g., Nathanson v. M~dicl1/ Co/kgt of PmnI)/lvania. 926 F.2d 1368 (3d CiL 1991), in which the court remanded the case for a determination as to whether the medical college had reason to know chat the Student's back condjtion was a disability, and whether the school had provided the StUdent with reasonable accommodations if it were found thac the school had reason to know that the student had a disability. 34 C.ER. § 104.3(k)(3). 42 U.s.c. § 36.201(a); § 35.130; § 35. I30(b)(8). Rothstein, supra nOte 2, at 192. 34 C.ER. § 104.42(b)(2). !d. (d). ld. 442 U.S. 397 (I 979). Su supra text accompanying notes 28-32. St!t! also ~.g., Doh~rty v. South~m Colkgt of Optom",y, 862 E2d 570 (6th Cir. 1988) (student with retinitis pigmemosa, a visual and neurological disorder which resulted in diminished vision and motor skills, was found not otherwise qualified, because dis~ ability prevented him from operating cer~ tain equipment required as an essential component of the optometry program); Villanueva v. Columbia UnivtrJiry, 746 F.

Supp. 297 (S.D. N.Y. 1990) (graduate student with cerebral palsy who failed wrinen qualifying exams twice was not otherwise qualified); Ohio Civil Rights Commission v. CaS( Ulesrem Univt!Tsiry, 76 Ohio St. 3d 168,

ical observation and diagnosis). 68. Su '.g., DO' v. Nnu York Univ., 666 E2d 761 (2d Cir. 1981) (medical school student who had a mental illness was denied admis~ sion to the program). 5t!t! also cases cited in preceding footnote.

69. 34 C.ER. § 104.44(d)(I). 70. Su Ban1t!S v. Conv~ru Co/kgt, 436 F. Supp. 635 (D.S.C. 1977) (cost is not a factor in requiring colleges to provide sign language interpreters for college lectures for hearing impaired students); Uniud StattS v. Board of

Trw"". 908 F.2d 740 (II th Cir. 1990) (upholding the Department of Education's interpretation of its regulations under the Rehabilitation Act as prohibiting a university from denying auxiliary aids to disabled students who did not show financial need. The university may have the student request assistance through state vocational rehabili~ tation programs and private charitable pro~ grams, but, ultimately, the university is responsible for the cost of the auxiliary aids needed. Undue financial or administrative burdens could be a defense, but such defense was not applicable in that case.) 71. 5t!t! South~astnn Colug~ v. Davis, 442 U.S. 397.412 (1979); Unit-d. Staw v. Board of Trwt"', 908 E2d 740. 747 (I Ith Cir. 1990). But Jt!t! BarfUS v. Conv~rJ( Co/ug~,

436 E Supp. 635 (D.S.C. 1977), in which

the Court held that COSt is not a factor in requiring the college to provide sign language inrerpreters for hearing impaired Stu~ dents. 42 U.S.c. § 12181(9). Su also Roth",;n. supra note 2, at 205. Su supra text accom~ panying notes 33 and 34.

Ranko Shiraki Oliver received Magna

her

B.A.,

Cum

Laude,

from the University of Arkansas at Little Rock

and het J.D. ftom UALR School of Law. She has been a member

of the faculty at the University of Arkansas at Little Rock School of Law since 1987. She teaches disability law, immigration law, and legal writing.

666 N.E.2d 1376 (S. Ct. 1996) (blind

REMINDER:

applicant for medical school found to not be "otherwise qualified," because accommodations needed for course work would impose undue hardship on school, and blindness prevented her from participaring in essential component courses of program, such as radiology, anatomy, physiology, all of which would be essencial for skill of med·

The next meeting of the Arkansas Bar Association House of Delegates will be Satutday. June 12, 1999, Arlington Hotel. Hot Sptings, AR

I'ol.ll So.1/Sprii! 1999

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Meeting.

Sex In the Legal Profession: Personal Peccadillo or Disciplinary Offense? Ellen A. Pansky is a principal in the law firm of Pansky & Markle, Los Angeles, California, specializing in professional liability litigation, State Bar admissions disciplinary defense, admissions, and ethics consultations. She will be exploring the national trend of codifying solutions to the dilemma sometimes created by the opposite

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Across the Serbonian Bog by D. P. Marshall, Jr. "A gulf profound as that Serbonian Bog, Berwixt Damaiu and Moum Casius old, Where armies whole have sunk." M ilron, Paradis< Lost, 2.592. Arkansas lawyers and their diems gO[ some good news recently from the Arkansas Supreme Court. In irs ongoing effon to keep "our civil rules current, efficient, and fair[.r the Coun made some significam changes in our Rules of Civil and Appellate Procedure-particularly in the rules on posttrial motions and notices of appeal. See, 336 Ark. Appendix Uanuary 28, 1999). Justice Darrell Hickman famously described the landscape around our posttrial-motion and notice-oF-appeal rules as a "Serbonian Bog." Pook v. Pook, 298 Ark. 550, 55\, 768 S. W.2d 544 (1989). Many cases have sunk there. The good news is this: the amended rules should get more lawyers across the Bog and bring morc decisions on the merits on appeal. • POST-TRIAL MOTIONS A recent case heJd that a post-trial motion filed before the Court filed its judgment was ineffective. Benedict v. National Bank of Commerce, 329 Ark. 590, 591-92, 95\ S.W.2d 562 (1997). That was a problem. Because of the interplay beC\Veen pOSttrial motions and the due date for a nmice of appeal, an ineffecrive motion could lull counsel into missing the deadline to file an appeal. Ibid. The amended rules cure the problem. A premature post-trial motion now ripens, and becomes effective once judgment is entered. "A motion made before entry of judgment shaH become effective and be treated as filed on the day after the judgment is entered." ARCP 50(b)(2) (as an1ended). This new provision applies to motions for judgment noC\Vithstanding the verdict, and it also appears in the rules governing motions for more findings by the trial court and mmions for a new trial. ARCP 52(b) (as amended); ARCP 59(b) (as amended). • NOTICES OF APPEAL - TIMING The Court also added several provisions

to Civil Appellate Rule 4, which controls when a nocice of appeal is due. Two of those changes cure other premature-fiJing problems. First, a norice of appeal filed after the trial court makes a decision, bur before judgment was entered, was ineffective. K<il] v. K</I], 3\ 0 Ark. 244, 246, 835 S.W.2d 869 (1992). No more. ow a premature notice becomes effective the day after the judgment or order is filed. ARAPCivil 4(a) (as an1ended). Second, a notice of appeal filed while a pose-judgment motion was pending was ineffective too. Chickasaw Chnnica/ Co. v. &asky, 328 Ark. 472, 473, 944 S. W.2d 51\ (1997). No more. Any such notice now becomes effective the day after the post-trial motion is denied or deemed denied. ARAP-CiviI4(b)(2) (as amended). But note well: you must file an amended nmice to appeal me trial Court's ruling on your post-trial motion. A premature notice becomes effective only as to me underlying judgment or order, not the ruling on the post-trial motion. Ibid.

• NOTICES OF APPEAL-CONTENTS Arkansas Rule of Appellate Procedure-Civil 3 governs the contents of nOtices ofappeal in civil cases. In 1997, me Court amended Rule 3 to provide that a notice was "invalid" if it did not contain a statement that the transcript had been ordered, and payment for it arranged, or that no transcript was needed on appeal. The "invalidity" sanction did not prove workable. Clayron v. Id<a/ Ch<mica/ and S"ppl] Co., 335 Ark. 73, 977 S.W.2d 228 (1998). The Court, therefore, has now abandoned it. ARAP-CiviI3(c) (as amended). A notice of appeal muSt still contain the statements about ordering and paying for any necessary transcript. Bur if it does nor, the nmice is still valid. Wirh all these amendments, our Supreme Court has built a bridge across the Serbonian Bog. Counsel must still mind their calendars, bur the way to a decision on the merits is much less treacherous.

Price Marsha" practices law in Jonesboro at Barrett 6- Deacon, P.A.

Eaming Their Keep Con\inued from Page 2

drug and alcohol abuse is critical to protecring the publ ic from the problems of the impaired lawyer. Lawyer Assistance Programs are operating in forty-two states. To establish a successful program will require action by the Supreme Coun and irs Committee on Professional Conduct. Rule changes will be necessary to afford confidentiality, encourage referrals, and make participation in the program an adjunct or alternative to other disciplinary measures.

Mediation of minor ethical infractions. The large majority of complaints against lawyers arise from rhe failure to handle client communications in a professional manner and the failure to deliver services in a timely fashion. Successful mediation programs have shown that client complaints such as these and others that would not warrant serious sanctions can be handled effectively and efficiently by mediation. Increased funding. The Supreme Court Committee on Unauthorized Practice of Law and the Committee on Professional Conduct are each funded entirely byannual license fees paid to the Supreme Court. If we are to retain our autonomy and protect the public whom we serve, we must adequately police our own ranks and maintain the public's confidence in our disciplinary procedures. Real changes in our disciplinary processes will not be possible without increased funding. Other Changes in the disciplinary process. From time ro time we hear complaints from our own members that our disciplinary system is too slow, roo soft and roo secret. Procedural changes adopted by the Arkansas Supreme Court last year addressed some of these issues. The Task Force report may address others that warrant further refinement. You will be hearing much more on each of these topics in the coming months, but the final outcome of each of these efforts will be determined largely by your response ro the recommendations of the task forces. Please share your comments and suggestions with the leadership and staff.

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&nk

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A sptrial thank you to tIN ftllowillgfillllnrial iwtihltio,ufOr paying ;lIttmt and waiving snvia charga on nttonlty IOLTA AlIi4ncc Bank. H()( Springs Ar\uns;as Bank, jonesboro AIllC'Iican Stale' Bank. Oscrob Bank of Arlansu. F.i~tC'vilk Bank of City Bank of Ddigt\l. NC'vm Co. Br.anch

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Stlpcrior FcdC'raI Bank. Ft. Smith Utuon Bank & Trust. Momicdlo Umon P'bntC'n Bank. Qilllon Union P'bntC'fS 6ank.. Da An.:

Firsl State' Ba.nk. Wam:n !-im WC'StC'fTl Bank, Rogas Ford}« Bank &TIUSt He.anIand Community Bank, CamdC'n Hroa Springs Sole' Bank HdOla NaOOnal Bank ~1C'rchanu k PbnIC'n Bank, I'kwpon: MrnopoIitan National Bank, Link RDdr. MidSouth B;mk.)onc:sboro National Bank ofAriwuas. North link RDdr. Propk:s Bank. ParapJd I\opIc:s Bank & Loan, 1...C'wiwilk Piggolt Sale' Bank PlantC'n Bank, Osttob PubsXi Bank & Trust. Link Rode. Qu;tiI Gttk Bank. ~ Gty RC'poru Bank. 0arlc:sviIk RC'poru Bank, Qimon ~ Bank, Conwq ~ Bank. B Dorado Rtpons 8ank, Ford)u

Ilccowlt$:

Regions Bank. N:l5hvilk Simmons rirst Bank, Jonesboro SimrTll>n$ Fim Bank of Arlc:msis, Russdlvilk Simmom First Nalional Bank, Pill(' BluIT SrNdtovtt Sule' Bank SouthC'm Sute' flank. M~vtrn SpnngdaIC' Bank & TIWl Thr: Arlwlsu Bank of BarcsvilJco Th< o.p.al &nk, ""'" Rod< TrustBank. Mountain HomC' Union Bank of Benton Union Bank of Mcna Union Planlas Bank. Forn:s! City Umon Plamas Bank. Osceola Union PbnIC'n Bank. WOI HdOla Union PlanIC'fl Bank. 'tX'al Memphis U"".. &nk, Spri"""'" 'X':lI'1'C'I1 Bank &. Trust, WMKJI

T"httnk Jl'U U) tlN'J' om partiripatt"f IOlTA banhJOr paying inln't'Jl on allO~ IOIIA JUC(Junll.· ~ Bank. Walnut Ridge Afb.nw Starr Bank, Paris Arkansas SDtC' Brank, Siloun Spnngs Bank of Armty Bank ofBauomilk """ofM<Cnxy Bank of Rison Caddo First National Bank. elmwood OwtC'f Sate' Bank, Bcdx CiIW:1U !-irst Bank, Arbddphia (now RC'gioru Bank) CifiJ,cns ..irst Bank, Eun:b Springs Citil,cns National Bank, Hope' Community First Bank. Eurcb Sprin&, Corning Savin&, & Loan, Coming Cross County llank, Wynll('

Danvilk Stale' &ok Elk Hom Bank & Trust, Arbddphla F.trmas & Madunu Bank, PraJ.M GI'tM Fcda:aI Savings Bank. Lnk Rock FaknI s..;.". &nk, """'"

"'" "'= &nk, "'">"'"'

First F.un:b Springs Bank !-im Ftdrnd Bank. of Arlarws. First Fcda:aI Bank of Arkansas. !-im Fnkr.II Bank of A~, !-im FcderaI Bank of Arbl\s;l$, First National Baok, Ash Flat First !-irst Firsl rirst

National National National National

Bank, 8C'rryville' Bank, Blytheville Bank, Marshall Bank. Rot;crs

Fint Nalional Bank of Sharp County, Mdooume !-irsl Sro..t.rity Bank. Hd>a Springs First United Bank, C:atiisk Hcutland Community Bank. Lttk Rock Maantik Bank, HOI Springs MC'rcmtik Bank of ArIwuas, Van Buren

Bonk of M<Cnxy Benlonvilk

IXrTyvilk F.i)'C'tII.'viIle'

Rogas

MadunIS &. Farmm: Bank. Dunus Mcilroy Bank &Trusr, F.i}"C'U1.'vi1k National Bank ofComffiC'fCC, fvkmphis NationsBank People! Bank & Trust, MountLin HofT)(' P!;uuers & Stockmen Bank. Pocahomas Regions Bank, Arbddphia Regions &nk, 8C'mon Rtgions Bank, Clarksville Regions Bank. Conw:ly Regioru Bank. fJ DonIdo

Rq;ioN ""'~ FonJ)'< RcgKlns Bank. HMrison RcgKlns Bank. H()( Springs Rcpoos Bank. joncsOOro " - ' " &nk, link Rod< Rqpons Bank. Morrilton Rq;ioN &nk, """""' R<gio", &nk, """'" RC'g.ions Bank, Russdtvilk Rcgions Bank. 5C':ucy Regions Bank, TC'Dritma Rcgion~

Ibnk, West MC'ffiphis

Simmons 11r$t Bank, [krmon Statt j-.ir$t N:ttional Bank, Ashdown Uniro llank, l~oIl".lgould Union Plal\le'rs Bank, Marion

III. 1111, :!IS,riag 1999

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.JudiriillllisripliUiIl} .\rt ions The Judicial Disciplinary AClions are wrillen and prol'ided by Ihe Judicial Discipline and Disabilily Commission. Trumann Municipal Court Judge Steve Inboden

RE, Case # 98-273 Dear Judge Inboden: At a hearing on March 12, 1999, the Judicial Discipline and Disability Commission reviewed a sworn compla.int, your response, the result of its investigation, and other ma[erial including your sworn testimony. In summary, it was alleged that you witnessed an apparent larceny, djrect'ed a police: officer to issue a citation for the infraction, and later, presided at the trial concerning that marter. It was also alleged that during court proceedings, you use chewing tobacco. The F.tcrs devdoped showed that while presiding in court, a Mr. Reed entered the counroom and announced that twO (2) women were removing property from his pick-up truck. Looking through the courtroom window, you observed Mrs. Campbell and Ms. Whitlatch removing items from the rear of Mr. Reed's truck and carrying the items to a nearby parked car. You asked a police officer in the courtroom to have the women return me items to Mr. Reed, and write each of them a citation for theft. You also direct· cd that the police: officer give them the same court date as Mr. Reed had been given to appear for trial in a rdated marter. On Scprembcr 28, 1998, you presided at the trial concerning the charges that were pending against Mrs. CampbeU and Ms. Whidatch. Mter hearing the evidence in these cases, you dismissed the charges. During these hearings and during other coun proceedings, you use chewing tobacco. You keep a cup or can on the bench and spit occasionally, but try not to be offensive about it. You also lean back in your chair, propping your feet up on a railing, while listening to testimony. The Judicial Discipline and Disability Commission found that under the circumstances described above, in your observing the twO (2)

women removing property, having a citation issued [0 them, and later, presiding at their criminal trials was in violation of the Code ofJudicial Conduct. Your actions denigrated the public confidence of the judiciary, and was inconsistent with maimaining the high standards of conduct essential in preserving the imegrity and impar. tiality of the judiciary. Your use of chewing tobacco and spitting into a cup or can, and leaning back in your chair and propping your feet up on a ra.il while listening to testimony is a F.tilure to maintain the requisite dignity and decorum needed in a courtroom and is in violation of me Code of Judicial Conduct. The Commission indulges the expectation that this conduct will not be repeated. Your conduct in these matters constitutes a violation of Canons 2A, 38(3), and 3E of the Arkansas Code of Judicial Conduct. It is the Judgment of the Commission that you be admonished. The public admonishment constitutes adequate discipline and no further action is warranted. The Commission action is public informa· tion.

Huntsville Municipal Court Judge W. Q. Hall

RE, Case # 97-337 Dw Judge Hall, Al a hw;ng on M..-ch 12. 1999. the Judicial Discipline and Disability Commission reviewed a sworn complainant, your response, the result of its investigation, and other material including your sworn testimony. In summary, it was alleged that you presided at a trial and declined to recuse: after it was brought to your attention that the defendant had, some years before, filed a complaint against you for unprofessional con· duct in yOul" attorney capacity. ~ a result of thai complaint, you received a letter of reprimand

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from the Arkansas Professional Conduct Comminee. The Commission found that you presided at the Small Claim's case of Paul and Wanda Foster v. Wallis in the Huntsville Municipal Court on December 11, 1997. On December 9, you received a telephone call from an anorney in Berryville on behalf of defendant WalLis. The attorney requested that you recuse from the case as Mr. Wallis was uncomfortable with you pre· siding at the trial. Wallis claimed that some years before, he filed a complaint against you which resulted in your receiving a letter of reprimand. You claimed not to recall any such complaint being filed against you. On December to, 1997, you received a phone call from a HuntsVi1Ie attorney who stated he would be representing the defendant Wallis the following day. This anorney asked for a continuance to obtain additional witnesses, and renewed the request that you step aside because of the possible bias. You denied both requests, and agajn denied any recollection of the reprimand. At trial, the attorney for Wallis renewed the request for a continuance and that you step aside. You denied both of these requests. After hearing the evidence, you rendered a judgment against the defendant Wallis in the amount requested by

the plaintiff. The Commission investigation revealed that in 1982, based on an affidavit filed by the wife of the complainant Wallis, you were issued a lette.r of reprimand by the Professional Conduct Committee. That Committee found you had violated the Code of Professional Responsibiliry by engaging in conduct adversely reflecting on your fitness to practice law, and by communicating with a party you knew to be represented by a lawyer without prior consent of that lawyer. Your defense before the Judicial Discipline and Disability Commission was that while you generally recalled the maner, you had no recollection of the complaint or ever receiving the reprimand from the Professional Conduct Committee. The Judicial Discipline and Disability Commission found your conduct, as described above, to be a violation of Canons 2A and 3E of the Code ofJudicial Conduct. The Commission also found that your defense was incredulous and nor acceptable. Your action was inconsistent with maintaining the high standards of conduct essential in preserving the integrity and impartiality of the judiciary. It is the judgment of the Commission that you be admonished. This admonishment constitutes adequate discipline and no further action is warranted. This Commission action is public informa· tion.

\t'kilnSilS Ilal'hsoriation Sustaining \hlmlwl's 1995-1!199 H. Wdl;am Allen Philip S. Anderson R. Keith Arman E. leRoy Autrey

Kenneth B. Bairn Charles W. Baker Coleen M. Barger W. Christopher Barrier Anthony Banels Sheny P. Budey R. T. Beard, III Paul B. Benham, III Evans Ikmon Donald E. Bishop L. D. Blair Daniel C. Blaney

Ted Boswell William H. Bowen Ronald L Boyer

Debbie D. Branson Fred E. Briner Edward W. Brockman, Jr. John A. Buckley, Jr. Richard K. Burke Jim Burnen Roben D. Cabe Julie M. Cabe John C. Calhoun, Jr. Daniel R. Carter

Roben M. Cearley, Jr. Sandra Wilson Cherry

John S. Cherry, Jr. H. Murray Claycomb John R. Clayton G. Randy Coleman Robert C. Compton Barry E. Coplin Ben Core

Nare Couhee Steve R. Crane

Hugh E. Crisp Willis Cronkhite, III F. Thomas Curry James D. Cypert Thomas A. Daily John A. Davis, III J. C. Deacon Jack W. Dickerson Philip E. Dixon Darrell D. Dover Winslow Drummond Davis Dury Byron M. Eiseman, Jr. John D. Eldridge Don R.. Fllion, Jr. George D. EII;s John R. Elrod Stephen Engsrrom

Robert R. Esl'cS Mike Everett John C. Everett Oscar Fendler

Vietor A. Fleming John A. Fogleman Roberr M. Ford Kay Wesr Forrest Sam E. Gibson John P. Gill W. Dem Gitchel David M. Glover Charles L Gocio John C. Gregg Murrey L Grider Ronald L. Griggs David K. Gunei Michael E. Hale Donis B. Hamilton Frank S. Hamlin David M. Hargis David K. Harp Kenneth A. Harper Ron D. Harrison Dave Wisdom Harrod Jennifer Wheder Haskins Richard Hatfield William D. Haught Harry F. Hauser Brad L Hendricks Donald H. Henry Sam Hilburn Henry Hodges Curris E. Hogue Alice L Holcomb W. R. Holland Don Hollingsworrh Cyril Hollingswonh Jack W. Holt, Jr. Ron A. Hope Robert E. Hornberger AJlan W Horne D. Michael Huckabay Clint Huey Eugene Hum Michael E. Irwin Donald T. Jack, Jr. Sherry L Jenkins Alston Jennings Roben L Jones, III Glenn W Jones. Jr. Lou;s (Bucky) Jones, Jr. Philip E. Kaplan William H. Kennedy, III Judson C. Kidd Warren O. Kimbrough Mike Kinard Peter G. Kumpe David . Laser Sam I....aser John T. Lavey Ike Allen Laws, Jr. Roben O. Levi Harry A. Light John G. Lile, III Edwin L. Lowther. Jr.

Kent J. Rubens Herben C. Rule, III John L Rush Donald S. Ryan Don M. Schnipper Isaac A. SCOUt Jr. John R. Scou John S. Selig Fran k B. Sewall Dennis L. Shackleford James B. Sharp Stephen M. Sharum J. L Shaver, Jr. James Marlon Simpson, Jr. H. Edward Skinner Ted C. Skokos Laura H. Smith Rodney K. Smith Robert D. Sm;th, III J. Timothy Smith David Solomon O. C. Sparks Donald M. Spear> James D. Spron Thomas S. Stone Leonard P. Strickman John F. Snoud, Jr. William H. Sutron Roben F. Thompson Danny ThraHkili John B. Thurman Roben D. Tramme.1I Fred S. Ursery James R. Van Dove.r Stevan E. Vowell John C. Wade W. J. Walker Bill H. Walmsley C. R. Warner, Jr. TimQ(hy F. Watson. Sr. John D. Watson Bud B. Whetstone John W Whitehead Roben H. Williams W. Jack Williams, Jr. Chris E. Williams David H. Williams J. Gaston Williamson Michael K. Wilson Russell B. Winburn Teresa M. Wineland Carolyn B. Witherspoon Tom D. Womack Marsha Choate Woodruff Henry Woods Robert R. Wright, III Paul B. Young Damon Young Robert E. Young Cary E. Young

Philip K. Lyon D. Price Marshall, Jr. WilJiam A. Marrin Michael H. Mashburn David R. Matthews Srephen A. Matthews Gail Matthews Joann c. Maxey Ronald A. May S. Huben Mayes, Jr. Herben H. McAdams, II Bobby McDaniel James H. McKenzie James A. Melany, III Sidney S. McMath Jack A. McNulty Russ Meeks Michael W Mitchell H. Maurice Mitchell Gary J. Mitchusson Thomas Ark Monroe James M. Moody Richard . Moore. Jr. Harry Truman Moore Kenneth R. Mounon RosaJind M. Mouser Will. Kirby Mouser Ralph C. Murray Timothy J. Myers E. Sheffield e1son Walter R. Niblock George H. Niblock R. Gary uner Bobby Lee Odom Conrad T. Odom Ranko Shiraki Oliver Joe D. Olson David L. Osmon Hugh R. Overhoh Charles C. Owen Charles R. Padgham ichoJas H. Patton B. Jeffery Pence Edward M. Penick Donna C. Pettus E. Lamar Penus John V. Phelps Norwood Phillips D:lVid A. Pierce John B. Plcgge David M. Powell William I. Prewen Donald C. Pullen Janet L Pulliam John I. Purtle Richard L. Ramsay Louis L. Ramsay, Jr. Brian H. Ratcliff J. Thomas Ray Elton A. Rieves, III Charles B. Roscopr Charles D. Roscopf

III. II XI. j

S,ril~

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.11Idiriill .\d,路isol'r Opinions The Judicial Advisory Opinions are written ollli provided by the Arkansas Judicial Ethics Adl'isory Commillee

MAYOR BOB MATHIS Hot Springs ational Park February 9. 1999 In your request for an opinIOn dated January 27. 1999. you incorporated by reference a lencr wrinen to us by David H. White. Hor Springs City Anomey, dated December 10. 1998. Those letters advised us mat Mr. Whire is Cirv Anomey for the City of Hoc Springs; that the assistant city anomey under Mr. White's supervision, who does not share offices with Mr. White, prosecures the city's traffic and city code cases in the Municipal Coun of Hot Springs. You also state that Ralph Ohm was elected and rook office on January I, 1999 as the parr-time Municipal Court Judge of Hot Springs. Mt. White pays Mr. Ohm a momhly fee for helping him with his private practice in represeming other public entities, coumies, cities and their subdivisions. In addition, these tWO men share office space, personnel and equipment. You asked if it would be appropriate for Judge Ohm co hear cases presented by Mr. White's assistant. The Canons provide that a judge shall avoid impropriety and the appearance of impropriety and that a judge shall not engage in financial and business deaJings that involve the judge in continuing business relationships with those lawyers likely ro come before the court. The clear answer is that co hear such cases would be a violation of Canon 3E even if Mr. White discontinued paying the monthly retainer fee to Mr. Ohm for helping him with his private practice, but cominued the office sharing relarionships. See also our opinions 97-03 and 97-05. Reminal of disqualification is covered in Canon 3F. HON. JERRY KELLY Lonoke Municipal Court Judge Match 15. 1999 You have asked the Judicial Ethics Advisory Committee for an advisory opinion relative to your representation of Mr. Chad Long. Your leaer srares rhar you afe Municipal Judge of Lonoke; that Mr. Chad Long and Mrs. Kelly Long divorced in Seprember of 1998, by decree ordering joint cuStody of their children. On Decembet

lS TIe Arkillil LI~!lr

101. 11,10. tlSprio! 1199

1997. Mr. Long charged Mrs. Long with harassing communications in a criminal case in Lonoke Municipal Court. You issued the mrrant. On ovember II, 1998. the parties appeared before you with their respective counsel and announced that they had agreed, with the concurrence of the prosecuting attorney. that the case would be held in abeyance for rwelve (12) momhs and then dismissed, barring huther problems. Though you have no recollection of doing so, you made a docket entry to thar effect. On January 15, lasr, you were retained as a practicing attorney by Mr. Long in connection with a motion for a change of cuscody in rhe divorce proceeding. At a hearing on February 8, Mrs. Long asserted thar you had a conAicr of inreresr and filed a motion for your disqualification as counsel for Mr. Long. The motion is pending before the chancellor, who is, you state, awaiting an opinion from this Committee. We must decline co tender an advisory opinion as requested. Your represenration of Mr. Long is a past evell(, having occurred on January 15. 1999. The procedural rules governing rhis Committee provide thar advisory opinions "shall relate to prospective conduct only" and "shall address only whether an intended, future course of conduct violates the Arkansas Code of Judicial Conduct. n Beyond that, a motion for disqualification is pending in the Lonoke Chancery COUrt, and it would be inappropriate for this Committee co render an advisory opinion in that context. HO ORABLE RALPH C. OHM Municiapl Judge fot Garland/Hot Spring Counties, Division II March 25. 1999 You have asked thar after we issued our opinion #98-07. you and David H. White. city atcorney for the City of Hot Springs, rerminated your financial relationship and your office sharing arrangement. You stated that Mr. White will employ the secretary thar you have shared, and that you would like to contract with this individual ro perform typing services as an independent contracror paid directly by you. YOLI scated thar this individuaJ might perform these services at her home or at Mr.

White's offices during her lunch break. So long as the termination of your financial relationship with Mr. White is genuine and you no longer share common offices, we find nothing in the Code of Judieial Conduct that would prohibit your independently securing the services of Mr. White's secretary. Your second inquiry related to a continuing relationship with a former client. You stated that ptiot to January I, 1999 (the date you took office) Mr. White had a contract with the Arkansas Public Entities Risk Managemenr Association (APERMA) in which this organization paid Mr. White a retainer for legal services. You stared that Mr. White had rhen paid you a part of this retainer for your assistance in this representarion. but that relationship has now been terminated. You stared that APERMA has proposed to place both you and Mr. White on separate retainers, and you asked for our opinion as to rhe ethical propriety of this arrangement. If you are a "continuing part-time judge" as defined in the Code of Judicial Conduct. you may engage in the practice of law so long as: your judicial duties take precedence over all your other activities (Canon 3 A); your practice does not cause reasonable doubt on your capacity to act impartially as a judge. demean the judicial office you hold. interfere with the proper performance of your judicial duries (Canon 4A); you avoid impropriety and (he appearance of impropriety (Canon 2), and otherwise do not violate the Code. In the faCts as presented, we are not tOld the nature of the work to be performed for APERMA. For instance. will you and Mr. White be doing office work independently for this organization or will you be working together on the projects? Will you be appearing together in courts or other public forums representing APERMA? If you and Mr. White will each be performing office work for APERMA. both independently of each other, we see no violation of the Code of Judicial Conduct so long as such wotk does not otherwise violate the Code. However, we cannot pre-approve every aspect of this telationship. and you should approach this endeavor with prudence and discretion.

Lil\\JPI'

Uisl'iplillill} .\rtiolls

The Lawyer Disciplinary Actions are writren and provided by the Supreme COllri ojArkansas' Committee on Professional Condl/c/.

NOTICE OF LICENSE REVOCATIONS

Mr. Richard Neil Belcher Belleville, AR February I I, 1999 Richard Neil Belcher was granted the privilege of practicing law in the State of Arkansas by this Cou" on August 24, 1983. Subsequently, Mr. Belcher was admitted to the Oregon State Bar where he actively engaged in the practice of law until September, 1994. In October, 1998, the Arkansas Supreme Court Committee on Professional Conduct learned that the Oregon State Bar previously had caused severe lawyer disciplinary sancdons [0 be imposed on Mr. Belcher. In 1993, the Oregon State Bar suspended Mr. Belcher from the pracdce of law for forryfive days for violation of that jurisdiction's rules governing professional conduct of lawyers. He was found to have engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; conduct prejudicial [Q the administration of justice; and wiUful deceit or misconduct in the profession. On September 28, 1994, the Oregon Supreme Court accepted Mr. Belcher's resignatjon from the Oregon State Bar and ordered his name to be stricken from rol1 of arromeys authorized to practice in that State. Mr. Belcher's verified petition tendering his voluntary resignation acknowledged the pendency of the Oregon State Bar's formal complaint alleging his unprofessional conduct and the investigation of other charges against him. According to Mr. Belcher's resignation petition, the complaint against him alleged, in pertinent pan, that he represemed a client in a matter which arose Out of and was connected to a legal matter in which he formerly represemed the adverse party; that he caused a falsified and deceptive quitclaim deed to be delivered for recording; and, that he placed his own funds in his lawyer trUSt accounr and converted to his own use client funds deposited therein. All of the cited conduct was in violation of Oregon's Disciplinary RuJes. The resignation petition expressed Mr. Belcher's desire nor ro contest or defend against the a1lega-

tions of misconduct and, further, stated his knowledge and understanding that, upon acceptance of his resignation, any future application by him ro reinstatemem as a member of the Oregon State Bar would be treated as an application by one who had been disbarred for misconduct. His petition also acknowledged his prior entry of a guilty plea to the criminal offense of forgery arising our of one of the abovementioned allegations. On December I, 1998, pursuant to the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attomeys at Law, Section 7M, DISBARMENT RECIPROCAL, the Committee on Professional Conduct filed with the Court its petition seeking reciprocal disbarment of Mr. Belcher in this jurisdiction. Mr. Belcher was duJy served with the Petition and notice of the time in which he could submit a response to the Court. On the last date permitted for filing of a response, cl1e anomey filed a document entering his appearance as attorney of record in the action but offered no comment or response [Q the substance of the petition pending against him. In subsequem correspondence berween the Commirree's Executive Director and the attorney, Mr. Belcher sem a letter explaining that his filing an entry of appearance as attorney of record was intended to reflect his intent nor to oppose reciprocal disbarment and voluntarily surrender his Arkansas law license. From the record before it, the Court finds that Me. Belcher's voluntary resignation from State Bar of Oregon while disciplinary charges were pending against him is that State's equivalent of this jurisdiction's voluntary surrender of law license in lieu of disbarmem, and that his resignation in Oregon is properly a disbarment for purposes of reciprocal disbarment in Arkansas. Further, the respondenc attorney was duly served with the Committee's petition containing the pertinem, certified copies of the Oregon disciplinary proceedings reflecting the serious misconduct found ro have been commined in that State, and he elected nOt ro comest the Committee's petition for reciprocal disbarment. The petition of the Comminee on

Professional Conduct is granred. Richard Neil Belcher's license co practice law in the State of Arkansas is hereby revoked. Mr. Belcher's name shaH be removed from the registry of licensed a[[orneys and he is permanently barred from engaging in the unlicensed practice oflaw in this state. h is so ordered.

Me. Eugene Fitzhugh Little Rock, AR Febracy 25, 1999 Attorney Eugene Fitzhugh, 6112 Myerson Drive, Little Rock. Arkansas, Bar 1.0. #55010, has been disbarred from the practice of law within the jurisdiction of this State pursuant ro the Findings and Order of the Pulaski County Circuit Court in the matter of the disbarmenc of Mr. Fitzhugh. The Arkansas Supreme Court granred the Petition seeking entry of an Order of Disbarment filed by the Committee on Professional Conduct and revoked the Arkansas law license of Eugene Fitzhugh on February 25, 1999. The Committce's Petition seeking an Order of disbarment of Mr. Firthugh was based on his III isconduct which led to the disbarment proceeding had in Pulaski County Circuit Court. The Petition and attached exhibits on file with the Clerk of the Arkansas Supreme Court, reAect that Mr. Firlhugh entered a plea of guilty in the United Scates District Coun, Eastern District of Arkansas, Western Division, to a one count superseding Information of Bribery of a SmaJl Investmcnr Company Official, a violation of 18 U.s.c. ยง 215, a class A misdemeanor which reflects adverselyon Mr. Fitzhugh's honesty, trustworthiness and fitness as a lawyer and is in violation of Rule 8.4(b) of the Model Rules of Professional Conduct. If you have any questions in this regard or you have information evincing the atrorney's continued practice contrary to the sratus of his license, please contact this office.

l'ol.l'l,lo. 2/Spring 1m The !rkansasl.awfer 19

La\\ )'1 1' llisl'iplillill} .\l'tiolls 1

NOTICE OF LICENSE SURRENDERS M.r. Andrew Hunter Beavers Little Rock, AR Attorney Andrew Humer Beavers, 1401 South Garfield Streer, Little Rock, Arkansas, Arkansas Bar ID #89063 has been permanently barred from engaging in the unlicensed practice of law in this State for violation of the Arkansas Model Rules of Professional Conduct. On the recommendation of the Arkansas Supreme Court ommittee on Professional Conduct. the Arkansas Supreme Court accepted the surrender of the law license of Andrew Hunter Beav", on January 21,1999. The surrender is effective immediatdy. Attorney Beaver's Petition to Surrender was based upon violation of Model Rule 8.4(b) of the Arkansas Model Rules of Professional Conduct. The Petition and attached exhibits on file with the Clerk of the Arkansas Supreme Count reAect that the anorney was convicted of conspiracy to possess, with intent to distribute, less than five (5) kilograms of cocaine, a felony in violation oflide 21 United States Code Sections 846, 841(a)(I) and 841 (b)(I)(B). If you have any questions in this regard or you have information evincing the anorncy's continued practice contrary to the status of his license, please comact this office.

Mr. WtlJiam C. Bethea Conway, AR Anorney William C. Bethea. formerly of Conway, Faulkner County, Arkansas, with Arkansas Bar ID #81016 has been permanently barred from engaging in the unlicensed practice of law in this State for violation of the Arkansas Model Rules of Professional Conduct. On the recommendation of the Arkansas Supreme Coun Committee on Professional Conduct. the Arkansas Supreme Court accepted the surrender of the law license of William C. Bethea on February 4, 1999. Attorney Bethea's Petition co Surrender was based upon violation of Model Rule 8.4(b) of the Arkansas Model Rules of Professional Conduct. The Petition and

He \r~lIllJ Law!!r

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attached exhibits on file with the Clerk of tht Arkansas Supreme Court, reflect that the attorney was convicted in the United States District Court, Northern District of Florida. Pensacola Division. of violating litle 18. United States Code Section 666(a)(2), Bribery of a Local Official, a felony. If you have any questions in this regard or you have information evincing the attorney's continued practice contrary to the status of his license, please contact this office.

Mr. Mark Wayne McBeth Forr Worth, TX Attorney Mark Wayne McBeth, 660 I Kingswood Drive. Fon Wonh, Texas, Arkansas Bar ID #94052, has been petmanently barred from engaging in the unlicensed practice of law in this State for violation of the Arkansas Model Rules of Professional Conduct. On the recommendation of the Arkansas Supreme Court Committee on Professional Conduct, the Arkansas Supreme Courr accepted the surrender of the law license of Mark Wayne McBeth on February 4, 1999. Attorney McBeth's Petition to Surrender was based upon violations of Model Rules 1.1, 1.2(a), 1.3, 1.4(a), 1.4(b), 1.5(0), 1.7(a), 1.7(b) , 1.16(a), 8.4(b), 8.4(c) and 8.4(d) of the Arkansas Model Rules of Professional Conduct. The Petition and attached exhibits on file with the Clerk of the Arkansas Supreme Court. reflect that the anorney did not provide competent representation to his clients, did not pursue the objectives of representation for his clients, did diligently pursue cerrain of his clients' legal matters. did not reasonably communicatt with the clients, failed to adequately explajn matters to his clients, failed to place contingent fee agreements entered into with his clients in wriring, became involved in legal marters wherein he had a conflict of inttrest in doing so. undertook representation of clients in legal maners although doing so violated the Arkansas Model Rules of Professional Conduct, Failed to promptly rerum papers and property to c1iems when his representation of those c1iems was terminated. committed criminal acts reflecting adversely on his fitness as a lawyer. engaged

in conduct involving dishonest. deceit. fraud and misrepresentation and engaged in conduct that was prejudicial co the administration of justice. If you have any questions in this regard or you have information evincing the attorney's continued practice contrary co me status of his license. please conract this office.

NOTICE OF LICENSE SUSPENSIONS

Mr. Timothy D. Williams Conway, AR The formal charges of misconduct arose from information provided by Griffin ]. StockJey. an anorney practicing in Little Rock, Arkansas. Mt. Stockley represented a former cliem of limothy D. Williams, an attorney practjcing in Conway, in a lawsuit against Mr. Williams. The lawsuit was filed in an attempt to recover uneamed fees from Mr. Williams. Bertha Henry is the former c1iem of Me. Williams for whom Mr. StockJey filed the lawsuit. Ms. Henry hired Mr. Williams to pursue guarc:lianship of a relative of hers. During the initial consultation. in December of 1996, Mt. Williams was paid 5750 for his fee. Less than one month later, Ms. Henry advised Mr. Williams that there was no longer a need for the guardianship. Since no petition had been filed and no hearing scheduled, Ms. Henry requested a refund of the unea.rned ponion of the fee. Mr. Williams refused to return any portion of the fee and also refused to provide Ms. Henry with an accounting. Mr. Stockley became involved during June of 1997 when he sued Mr. Williams on Ms. Henry's behalf. Mr. Williams was served with the lawsuit on June 30, 1997. He filed a Motion to Dismiss on July 17, 1997. During the pendency of the lawsuit, Mr. WillianlS was served with a Motion to Produce and Interrogatories. Mr. Williams fajled to respond even after an Order to Compel was entered. Mr. Williams never communicated with the Court nor with Mr. StockJey. opposing counsel. about the lawsuit. Because of Mr. Williams' failure to respond after his Morion to Dismiss was denied. a judgment by default was entered

Lim}(lI' againsr him. Mr. \ViIliams failed [0 take any action (0 satisfy the Judgment. Mr. Williams failed (Q sign for the certified mailing of this Complaint sent to his address of record on file with the Clerk of Arkansas Supreme Court. Pursuant to Section 5E(2)(b) of the Procedures of me Arkansas Supreme Coun Regulating

Professional Conduct of Anorneys at Law (Procedures), as revised January 15, 1998, a private process server was hired to serve Mr. Williams. On September 8, 1998, personal service was accomplished in accordance with the Arkansas Rules of Civil Procedure. His response to the aJlegarions of misconduct was due on or before September 29, 1998. Mr. Williams did nor respond. His failure co respond timely CO the complain[ constitutes admission of the factual allegations contained in the complainr pursuanr to Section 51(4) of the Procedures. Upon consideration of the formal complaint herein, the Committee on Professional Conduct finds: J. That Mr. Williams' conduct violated Model Rule J.16(d), Arkansas Model Rules of Professional Conduct, by failing to rerum the unearned porrion of the advanced payment of fee to Ms. Henry after his services were terminated, after a lawsuit was filed against him, and, after Judgment was forwarded to him. Model Rule 1.16(d) requires. in pertinent pan, that upon termination of representation, an attorney shaH take steps to the extent reasonably practicable to prorect the client's interests, such as refunding any advanced payment of fee that has nO[ been earned. 2. That Mr. Williams' conduct violated Model Rule 3.4(d), Arkansas Model Rules of Professional Conduct, in that after being served with a Motion to Produce pursuant to the Arkansas Rules of Civil Procedure, he failed to respond in any manner to the production requests; he failed to respond to the Interrogatories served upon him; and. despite the Judge's Order compelling him to respond to the discovery requests, he failed to respond. Model Rule 3.4(d) requres, in peninent pan, that a lawyer shall not, in pretrial procedure, fail to make reasonably diligent effoTt to comply with a legally proper discovery request by an opposing parry. 3. That Mr. Williams' conduct violated

IIisl'iplinill')' ,\dions

Model Rule 8.4(d), Arkansas Model Rules of Professional Conduct, ro wit: (i) He failed to refund to his former client, Ms. Henry, the unearned portion of the advance payment of fee, thereby resulting in Ms. Henry's having to file suit to obtain the refund; (ii) His failure to provide an accounting to Ms. Henry related to the $750 advance payment of fees also gave cause for the necessity of coun intervention in this marter; (iii) His failure to respond to the Motion to Produce and the Interrogatories. both propounded to him pursuant to the Arkansas Rules of Civil Procedure, created the need for the Judge to review and act upon a Motion to Compel in the matter; (iv) Writs of Garnishment were necessitated by his failure to communicate with Mr. StockJey or to attempt to satisfy the Judgment; and, (v) His failure to take any acrion afrer filing a Response to Motion and Brief for Default Judgment in the lawfuir resulted in delay of the coun proceedings and in rhe need for the Judge to expend addirional time which otherwise would not have been necessary. Model Rule 8.4(d) requires thar a lawyer shall not engage in conduct that is pejudicial to the administation of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that TIMOTHY D. WILLIAMS, Arkansas Bar 10 #75140, be, and hereby is, SUSPE OED for his conduct in this matter, said sanction was enhanced pursuant to the aforementioned failure to respond. Mr. Williams' suspension shall be for a period of six (6) months and shall become effective as of the dare of the filing of mis Order. Further, pursuant to Section 8A(2) and 8A(3) of the Procedures, it is the decision and order of the Comminee that Mr. Williams be, and hereby is, fined in the amount of $250, and that he be, and hereby is, ordered to make restitution to Bertha Henry in the amount of $750. Said fine, made payable to the Committee on Professional Conduct, and restitution, made payable to Bertha Henry, to be remined to the Executive Director within twenty (20) days of the date of filing of this Order with rhe Clerk of rhe Arkansas Supreme Court.

Mr. Timomy D. Williams Conway, AR The formal charges of misconduct arose from the Com plaim of Charles Doan. Timomy D. Williams, Conway, Arkansas, was employed to represent Mr. Doan in a paternity action during 1995. Mr. Doan had received notice from the Scare of Arizona that it was seeking to establish paternity for a child who resided in the State of Arizona. During his discussion with Mr. Williams, Mr. Doan explained that he would be willing to submit to the D A tesr suggested in the nOtice. Mr. Williams advised Mr. Doan that a DNA test could be taken when the Stare of Arizona proceeded through the proper courts in the State of Arkansas and, if he agreed to take the rcst which Arizona was offering, that he would be subjecting himself to the jurisdiction of the Courts of the Stare of Arizona. In November 1995, Mr. Doan was served with a Summons and Complaint for Paternity. Mr. Doan took these documents to Mr. Williams who advised thar Arizona did nor have jurisdiction. In January 1996, Mr. Doan received an Affidavit and Application for Defau', Judgment. Mr. Doan took the Affidavir and Application to Mr. Williams. Again, Mr. Williams assured Mr. Doan that Arizona did not have jurisdiction and that the matter would still have to proceed through the courts of Arkansas. Thereafter, Mr. Doan received a copy of an Order of Wage Assignment which was taken to Mr. \Villiams who again advised that Arizona did nor have jurisdiction and that rhe marter would have ro be filed in Arkansas before the matter could become final. Mr. Doan terminared Mr. Williams' representation when his wages were garnished by the State of Arizona pursuant to the Order of Assignmenr. Mr. Williams was served with a copy of the Affidavit and Complaint by process server on September 8, 1998. Pursuant ro Section 5F(I) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (Procedures), as revised January 15, 1998, Mr. Williams was notified that he had twenty (20) days in which to file a written response to the Executive Direcror. His

iii. lila. ~/Sprilf 1999

Thr ,Irkmll Law!rr

til\\}rI' response was due on or before September 29. 1998. No response was received. His failure co respond timely co the complaint constirures admission of the allegations contained in complaint pursuant co ScC[ion 51(4) of [he Procedures. Upon consideration of the formal complaint herein, the Commirrce on Professional Conduct finds: 1. That Mr. WiUiams was nOt licensed to practice law in the state of Arizona and failed to advise Mr. Doan (Q seek counsel licensed in the Stare of Arizona to assist him in the paterniry action; erroneously advised Mr. Doan that Arizona did not have jurisdiction after he received a Summons and Complaint for Paternity in November 1995; erroneously advised M f. Doan that Arizona did not have jurisdiction over him after he received an Affidavit and Application for Default Judgment; and, erroneously advised Mr. Doan that Ariwna did not have jurisdicition after he received a Default Judgment and Order of Assignment; all of which evidenced a lack of competent representation in violation of Model Rule 1.1, Arkansas Model Rules of Professional Conduct. Model Rule 1.1 requires that a lawyer shall provide competent representation to a client. Comperent representation requires [he legal knowledge, skill, [horoughness and preparacion reasonably neces-

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sary for the represent3tjon. 2. That M r. Williams failed to protect Mr. Doan's legal rights by not having an answer filed in the Arizona paternity action by an attorney licensed to practice law in the State of Arizona and that he failed to advise Mr. Doan of an offer by the State of Arizona following a conversation with an Ariwna Child SuPPOrt Enforcemen[ Official which would allow Mr. Doan to submit to a blood test, both of which violated Model Rule 1.3, Arkansas Model Rules of Professional Conduct. Model Rule 1.3 requires a lawyer to act with reasonable diligence and promptness in representing a client. 3. That Mr. Williams failed to notify Mr. Doan of an offer from the State of Ariwna following a conversarion with an Arizona Child Support Enforcement Official which would allow him to take a blood test and failed to inform Mr. Doan that he should seek counsel from an anomey licensed to practice law in the State of Arizona, thereby depriving Mr. Doan of the opporruniry to make an informed decision about the representation, in violation of Model Rule 1.4(b), Arkansas Model Rules of Professional Conduct. Model Rule 1.4(b) requires a lawyer shall explain a matter to the extent reasonably necessary to permit the c1ienr co make informed decisions regarding the representation. 4. That Mr. Williams' conduct violated Model Rule 8.4(d), Arkansas Model Rules of Professional Conduct, in thar, Mr. Doan relied upon his advice in determining what actions to take in regard to the matter in Arizona and, as a result, there was by default a finding of the Arizona Court thar Mr. Doan was the father of the minor child; and, additionally, that there was an Order of Assignment emered by default which directed thar a portion of Mr. Doan's wages be withheld for child support purposes. Model Rule 8.4(d) requires that a lawyer shall not engage in conducr that is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Courr Committee on ProfessionaJ Conduct that TIMOTHY D. WILLIAMS, Arkansas Bar ID #75140, be, and hereby is, SUSPENDED for his conduct in this matter. Mr. Williams' suspension shall be for a period of

six (6) months and shall become effecrive as of the dare of [he filing of [his Order.

Mr. Thomas Francis Donovan Li[de Rock, AR Thomas Francis Donovan, Arkansas Bar ID #73027, an attorney previously practicing law primarily in Little Rock, Pulaski Couney, Arkansas, now residing 111 Fayetteville, Washington County, Arkansas, was convicted in the Pulaski Counry Circuit Court in case number CR 97-1980, of the offense of Theft of Property, a Class B Felony. On February I, 1999, a Judgment and Disposition Order was filed of record in the aforesaid criminal matter. a file marked copy of which is appended hereto. Pursuant to the mandare of Section 6B(I), Procedures of the Arkansas Supreme Court Regularing Professional Conduct of Attorneys at Law (Procedures), a disbarment action shall be iniriated against Mr. Donovan as a result of his felony conviction. Additionally, an inrerim suspension of Mr. Donovan's privilege to practice law under the authority of his Arkansas law license shall be imposed pursuant to Sections 7E(3)(a) and (b), and 8B(I)(a) and (b) of the Procedures. It IS therefore ORDERED that THOMAS FRANCIS DONOVAN be, and he hereby is, SUSPENDED from [he practice of law within this jurisdiction immediately upon the filing of this Order with the Clerk of [he Arkansas Supreme Court.

NOTICE OF REPRIMANDS Mr. Thomas Dale Ledbetter Harrison, AR Mr. Thomas Dale Ledbetter was reprimanded by the Arkansas Supreme Court Committee on Professional Conduct on January 6, 1999. The formal charges of misconduct arose from [he Complaint of Jimmy D. Cotgill, Sr. Thomas D. Ledbetter, Attorney at Law, Harrison, Arkansas, was employed to act as a closing agent in the transfer of a parcel of real estate locared in Newton County,

ta\\}rl' IIisl'iplinal} .\1'1 ions Arkansas. In April 1993, Mr. Corgill purchased the subjecT properry by a Comracr for rhe Sale of Real Property. In Ocrober 1995, Mr. Corgill agreed to sell his interest in the property to Caroline Cameron. Ms. Cameron agreed ro pay $10,000 ro Mr. Cargill for his imeresr in the propercy and to assume the remaining indebtedness owed on the April 1993 Contract for the Sale of Real Properry. Mr. Ledberrer, acting as agem, $10,000 received from Boone County Abstract and American Realty, which represClHed the amounr Mr. Cargill was to receive. The subject property had at one time been a time-share resort and not all of the time-share agreements had expired. Mr. Ledbetter then informed all panies to the transaction that he could nor proceed with the transfer of the property as there was not free and cleat title. On December 21, 1995, Mr. Cargill and Ms. Cameron executed an addendum waiving the necessity of free and dear ride uncil all payments under the Contract fot Sale of Real Propetty had been made. By May 1996, rhe transfer of the property had srill not occurred. Mr. Ledbetter then rook $110.00 out of the

I. That Mr. Ledbettet's failure to obtain approval before withdrawing $110.00 to initiate litigation from any party with an interest in the $10,000 which was being held by him, and, his failure to interplead into rhe Registty of rhe Court the entire $10.000 in which there was a dispute as to ownership. violated Model Rule I. 15(c), Arkansas Model Rules of Professional Conduct. Model Rule 1.I5(c) requires mat when in me course of representation a lawyer is in possession of property

in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. 2. That Mr. Ledbetter's conduct violated Model Rule 8.4(c), Arkansas Model Rules of Professional Conduct, by falsely asserting that after inrerpleading $7.000 to the Registry of the Court, the remaining $3.000 was in his trust account since $110.00 of the $3,000 was withdtawn to pay for the filing fee of the imerpleader

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client trust account in whjch the $10,000 was placed. without obtaining approvaJ from any parry with an interest in the $10,000, and filed a Petition fot DeciaratOty Judgment requesting the court co determine the rights and responsibilities of the parties involved; to determine who was to receive funds being held by him; and to withhold fees for professional services from the funds being held by him. Mr. Corgill responded to the Petition with an Answer and Counterclaim. Mr. Ledbcncr responded with a Motion for Sanctions. In March 1997, Mr. Ledbetter deposited $7,000 of the $10,000 with the Registry of rhe Court with the remainder to be held by him and applied to his fees. Following a heating held in April 1997, the Court otdeted Mt. Ledbettet to deposit with rhe Registry of rhe Court the remainder of the $10,000; denied Mr. Ledbetter's anomey's fees; and dismissed the Petition for Declaratory ]udgmem. The cransfer of interests in the real estate was thereafter finalized. Upon consideration of the formal complaint and response herein. the Commirree on Professional Conduct finds:

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Lil\\Jel' Disl'iplimuI lctions action. Model Rule 8.4(c) requires, in pertinenr part, that a lawyer shall not engage in conduct involving dishonesty or misrepresenration. 3. That Mr. Ledbetter's failure to conclude the transfer of the real estate as the panies wished from November 1995 to April 1997 and his filing of a lawsuit against the panies to the transfer causing an unnecessary delay in the completing of the maner for which he was employed, violated Model Rule 8.4(d), Arkansas Model Rules of Professional Conduct. Model Rule 8.4(d) requires that a lawyer shall nOt engage in conduct that is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of rhe Arkansas Supreme Coun Cornmince on Professional Conduce that THOMAS DALE LEDBETTER, Arkansas Bar 1D #67032, be, and hereby is, REPRIMANDED for his conduct in this matter.

NOTICE OF CAUTIONS Mr. Kenneth George Fuchs Conway, AR Mr. Kenneclt George Fuchs was cautioned by the Arkansas Commince on Professional Conduce on January 6, 1999. The formaJ charges of misconduct arose

from the Arkansas Supreme Coun case of

Dmnis Dille Sublett v. Stllte of Arkal1sas, CR97-0049. Kenneth G. Fuchs, an attorney practicing in Conway, was held in contempt of the Supreme Court of Arkansas for his conduct in the ahovemclHioned matter. The Contempt Order was based upon Mr. Fuchs' failure ro file his c1iem's appeal brief in a timely manner. Mr. Fuchs disputes that his guilty plea (Q the cOlHempr citation was to that factual basis. Inscead, he mainrains that his guilty plea was based upon not having the corrected brief filed on or before rhe day it was scheduled fot filing. On September 20, 1996, the transcript from Mr. Sublett's criminal trial was tendered to the Clerk of the Arkansas Supreme Court. Mr. Fuchs explains that he was unaware of the tender of the transcript until he was nOtified by an employee of the Clerk's office on January 8, 1997. A week larer Mr. Fuchs filed a Motion for Belated Appeal wherein he explained that his client made no mention of an appeal following his conviction for which he received a life sentence. It appears that his client may have filed a pro se notice of appeal and designation of record and then purportedly caused the record to be tendered without Mr. Fuchs' knowledge. The Court treated the Motion as one for a Rule on the Clerk and granted it on February 3,1997. In the notification that the Motion was granted, the date the brief was due was also included. Mr.

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Fuchs explains that there were some problems faced by him in connection with obtaining a copy of the transcript with which he could work. He was finally able to obtain one when the Faulkner County Circuit Clerk loaned hers to him. On the date that the brief was initially due, Mr. Fuchs mailed to the Clerk the firsr of his six Motions for Exrension of Time to File Brief. In discussing these Motions, Mr. Fuchs offers that his c1iem was already serving a life sentence in a different matter. For his part, Mr. Fuchs explains thar during the time period when the extensions were being requested, he was a public defender with a full docket load. He also sets out thar it is not mentioned thar prosecuting attorneys do nOt have to do appellate work nor is it mentioned that the Attorney General does not have to abstract the entire record which is extremely time consuming. With all those factors in mind, Mr. Fuchs expresses his beliefs that it was not unreasonable to have asked for continuances based on his workload; that the system was at fault; and, that the continuances were not his fault. Following the Court's granting of the sixth extension requested by Mr. Fuchs, his brief became due on or before March 10, 1998. Mr. Fuchs filed the brief on March 3, 1998. The Court's Per Curiam deliveted July 16, 1998, refers to the brief as a "NoMerit" brief. Mr. Fuchs disputes (his characterization. Twenty-four (24) days after Mr. Fuchs rendered his client's brief, he signed a Joint Morion for Compliance with an Assistant AttOrney General. In the Motion, Mr. Fuchs agreed that he had not complied with Rule 4-3(hl, Atkansas Rules of Supreme Court, and, agreed thar the noncompliance required rebriefing. In his testimony during his contempt hearing and in his response to the Committee, Mr. Fuchs contends that there were no objections left out of the brief and, in faCt, it was in compliance with Rule 4-3(h). Howevet, the pagination was off and that was why there was some confusion. Regardless, the Court granted the Joint Motion and the Clerk sent notice of this fact along with notice that the corrected brief was due on or before May 26, 1998. According ro Mr. Fuchs, he awaited word about the disposition of the Motion bur never received any. Mr. Fuchs did not

L3\\}PI' Disl'iplin31')' .tetions file his brief in compliance uneil thirty (30)

on behalf of Mr. Sublett, along with his larer

Mr. Loui. Anmony Eroch

days after the date it was due. This filing occurred only after he received notice from the Assistant Attorney General char he had

failure to timely file a brief in compliance

Monroe Councy. AR

missed the deadline. Five (5) days after he rendered me brief, Mr. Fuchs filed a Motion fot Belated Appeal. When the Court granted the Motion, Mr. Fuchs was also ordered to appear and show cause why he should nor

be held in coneempt. When Mr. Fuchs appeated and eneered his plea of guilty, the

with Rule 4-3(h), caused the Arkansas Supreme Coun to have to schedule a show cause hearing; (iii) The orderly and timely administration and resolution of appellate proceedings were delayed by his failure (0 timely act on behalf of his client, Dennis Sublett; and, (iv) His failure to timely act on

behalf of his client in his appellate proceeding required me Coun to expend additional time and effort which would not have been

Court rook the matter under advisement,

necessary otherwise. Model Rule 8.4(d)

Mr. Fuchs men received a fine of $250

requires that a lawyer shall not engage in condua that is prejudicial to the administration of justice.

which he does nOt think was fair in light of the circumstances. Upon consideration of the formal complaint and response herein. the Committee on Professional Conduct finds: I. Thar Mr. Fuchs' fujlure ro exhibir the required thoroughness and preparation necessary for representation of Mr. Sublerr

client, including the thoroughness and preparation reasonably necessary for me represemauon. 2. That Mr. Fuchs' conduct violated

Model Rule 1.3, Arkansas Model Rules of Professional Conduct, by fuiling to file a brief on behalf of his diem, Dennis Sublett, from April 29, 1997, through March 2, 1998. Model Rule 1.3 requires mat a lawyer

Case

o. CR 96-3. Mr. Eroch represented

Defendant Kimberly Whitaker. Mr. Carrmh referred matters to the Commirree mat occurred in the trial of

Kimberly Whitaker which was held on February 12, 1997. Prior to the commence-

WHEREFORE, it is me decision and

ment of me trial, me State, through Mr.

order of the Arkansas Supreme Coun Committee on Professional Conduct mat

Carruth, requested a Motion In Limine to prevem reference to the finding of drugs on the deceased individual. The Court granted the request. However, during cross-examination of one of the detectives in the trial proceedings, Mr. Etoeh made reference to a sign seen in a crime scene photograph. The

KE NETH GEORGE FUCHS, Arkansas Bar JD #81063, be, and hereby is, CAUT10NED for his conduct in this marrero

in his appellate proceeding from April 29, 1997, through March 3, 1998, violated Model Rule 1.\, Arkansas Model Rules of Professional Conduct. Model Rule 1.\ requires. in pertinent parr, that a lawyer shall provide compercm representation to a

The formal charges of misconduct arose from the complaint of Thomas David Carrum, Attorney at Law. Mr. Carruth was the Deputy Prosecuting Attorney for Monroe County, Arkansas and represemed the State of Arkansas in a murder case. State v. Whjtak~r, Monroe County Circuit Coun

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shall act with reasonable diligence and promptness in represeming a client. 3. That Mr. Fuchs' conduct violated

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wit: (i) His fail-

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caused an extreme delay in his appellate proceedings; (ii) His initial failure (0 file a brief

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La\\Jrl' Disriplinal} .\l'tions sign stated that liquor or drugs could not be brought inro the cafe where the murder occurred. Mr. Eroch men asked me detective. "You know Mr. Williams (the deceased) could nO[ enter the cafe... because Ned does not allow anyone in his cafe who had drugs on them and Jamison had 1.7 grams of crack cocaine on him when he died, didn't he?" The Ttial Cou« found Mt. Eroch ro have deliberately disregarded its prior ruling on the State's Motion in Limine and found him in contempt of court. Later in the «ial, Ralphyell Cauley testified. Cauley. a former diem of Mr. Eroch, was asked by Mt. Etoch abom the status of his suspended imposition ofsemence. The State objected and requested a sidebar. During sidebar, Mr. Etoch spoke loudly enough that the jury could hear him make reference to a pending Petition for Revocation of Mr.

tains that he vigorously, zealously. and competently represented his client in a murder trial, but admits that he was found in contempt by the trial court, that his conduct was in violation of the trial court's ruling on the State's Motion in Limine, and that the contempt findings were affirmed on appea1. Upon consideration of the formal complaint. response herein. and proposed conscm to discipline, the Comminee on Professional Conduct finds: 1. That Mr. Etoch's conduct violated Model Rule 3.4(c), Arkansas Model Rules of Professional Conduct, when he made references to the finding of drugs on the deceased when cross-examining a witness despite the trial court's prior ruling that a statement referring to the finding of drugs could not be made. Model Rule 3.4(c) requires, in pertinent part, that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal. 2. That Mr. Etoch was found ro be in contempt of the Court's orders; and, that the cumulative effect of Mr. Etoch's conduct caused the trial court to declare a mistrial since the jury was tainted. all in violation of Model Rule 8.4(d), Arkansas Model Rules

Cauley's suspended senrence and that the Stare was stalling the revocation until Mr. Cauley testified in order to see what his testimony at trial would he. Following that incident the COUf( instructed the jury to take a break and held an in camaa hearing. The Coun found that the jury would not be able to disregard hearing maners which had been ruled inadmissible and granted a mistrial. Mr. ~; Etoch was found to be in contempt and COSts of the trial were assessed to him. The findings of contempt made by the trial court were thereafter affirmed on appeal by the Arkansas Supreme Court. Although Mr. Eroch initially asserted that he engaged in no improper, unethical, or unprofessional conduct, upon reconsideration he has agreed to consent to discipline pursuant to Section BC(!)(c) of the Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of

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Our Website www.arkbar.com

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of Professional Conduct. Model Rule 8.4(d) requires that an attorney shall not engage in conduct that is prejudicial ro the administration of justice. WHEREFORE, in accordance with the consent to discipline presented by Mr. Etoch and the Executive Director, James A. cal, it is the decision and order of the Arkansas Supreme Court Comminee on Professional Conduct that LOUIS ANTHONY ETOCH, Arkansas Bar ID #89030, be, and hereby is. CAUTIONED for his conduct in this matter. Further, pursuant to Sections 8A(I) and 8A(2) of the Procedures, it is the decision and order of the Comminee that Mr. Etoch be, and hereby is, assessed costs in this matter in the amount of $) 3.72. and that he be, and hereby is, fioed in the amount of $250.00. Said COstS and fine to be remitred to the Execucive Direcror within twenty (20) days of the filing of this Order.

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In lIPRlOl'iillll Jeff Davis Duty, Sr.

Navada Cloyteen Lyons Richardson

Jeff David Duty, Sr., 92, of Rogers, died February 26, 1999, at his home. He was born August 13, 1906, in Garfield, Arkansas, the son of John Randolph Duty and Rella Cooper Duty of Rogers. He was a graduate of Rogers High School and attended the University of Arkansas, where he was on the Razorback football

Navada C10yteen Lyons Richardson died on February 8 in Batesville at age 69. She was Stone County Municipal Judge, a member of Penricostal Church from an early age, a member of Eastern Star and was a past member of the Arkansas Bar Association. Her parenrs. Elmer Lyons and Marie Tubbs Lyons, preceded her in death. Survivors are her husband. J. D. Richardson; tWO sons and their wives, Eddie and Kathy Roberts of Coy and Jon and Betty Roberts of Stuttgart; a srepson, Max Richardson of Little Rock; a daughter and her husband, Margie and Don Kesl of Jonesboro; a step daughter, Mary Jo Keller of Vancouver, Washington; two brothers, E. G. "Bud" Lyons of Amite, Louisiana, and Joe B. Lyons of San Diego, California; twO sisters. Pauline Durden of Humnoke and Patsy Jones of Pine Bluff, thirteen grandchildren and five great grandchildren.

team. He graduated from Cumberland University School of Law in Tennessee in

1930. He married Lois White of Rogers in 1929 and in 1930 he entered law practice with his famer, John R. Duty and his uncle, Claude J. Duty, in me firm Duty & Duty in Rogers. In 1941 he was elected prosecucing attorney and served four terms in that office. In 1948 Duey was appointed as assistant attor-

ney general, in which office he served until

1951 when he joined his uncle in Rogers in the firm of Duty & Duty and continued [Q practice law in Rogers until his retirement in

July 1997. He was the recipiem of many honors

from his professional colleagues in the Bemon County Bar and the Arkansas Bar Association. He aJso served as a vestryman for Sr. Andrew's Episcopal Church and in his later years became a member of the Central United Methodist Church in Rogers. He was widely recognized as a scholar and advocate for individual Constirutional rights. In 1995 he was the subject of a television news special on the local ABC station observing his 65th year of law practice in the area. At the time of his retiremelH, he was the oldest practicing attorney in the state of Arkansas. He was interested in the study of the American frontier and the War Between the Stares. He enjoyed collecting books and artifacts concerning the life of Gen. G. A. Custer and was a supporter of the football and basketball teams of the University of Arkansas. He was preceded in death by a son, a grandson and a granddaughter. Survivors include his wife, Lois White Duty; two sons, John W. Duty of Rogers and Jeff Davis Duty, Jr., of Fort Smith, Arkansas; a daughter, Carolyn Duty Banks of Fayetteville; seven grandchildren; five great-grandchildren and numerous nieces and nephews.

ARKANSAS BAR FOUNDATION MEMORIAL GIFTS The Arkansas Bar Foundation hopes attorneys think of it when they wish to make a memorial gift honoring a family member, a colleague or a friend who was a lawyer, a judge or a friend of the profession. Memorial gifts are recorded in the Foundation's Memorial Book and provide lasting tribute. Memorial cards are sent by the Foundation to the family of the deceased advising them of the conrribution. MemoriaJ gifts to the Foundation are deductible for income tax purposes and suppOrt the Foundation's work in making scholarship funds available for law Students, financing research and other projects which support the sysrem of justice, aiding in education of the public about legal matters, and funding other legally related charitable efforts. Memorial gifts may be sem directly co the foundation. Contributions or requests for more information may be scm co: Arkansas Bar Foundation, 400 W. Markham, Little Rock, AR 72201, or call (501) 375-4606 or 800-609-5668.

The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of memorial gifts and scholarship contributions given in mem01Y of thelollowing individuals lrom Februwy 3, 1999 through March 26. 1999.

IN MEMORY OF' WALTER DAVIDSON

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IN MEMORY OF JEfT DlITY

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IN MEMORY OF MARGARET MURPIIY

Joyce Bobbitt Judge John and Annis Fogleman Jack A. McNulty Hoyte and Ann Pyle Col. Wm. & Mary Lou Martin George Purvis

IN MEMORY OF WALTER NIBLOCK

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OF WRENETTE WORfHEN

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