The Arkansas Lawyer magazine Summer 2001 by Arkansas Bar Association

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PUBLISHER

Arkansas Bar Association Phone: (501) 375-4606 Fax: (SOl) 375-4901 Homepage: www.arkbar.com E-Mail: pjones@arkbar.com EDITOR

Pat lones GRAPHIC DESIGN

Sara Lnndis EDITORIAL BOARD Stuart P. Miller, Chair Wiley A. Branton Morton Gitelman James c. Graves J. Leon Holmes Jacqueline Johnston/Cravens Lucinda McDaniel David H. Williams Jacqueline S. Wright OFFICERS President Sandra Cherry President-Elect Murray Claycomb Immediate Past President Ron D. Harrison

on en s VOLUME 36, NUMBER 3

Features Focus ON

NURSING HOMES

12 Nursing Home Fraud and Abuse: Making a Federal Case of It

by Sandra Wilson Cherry

Secretary -Treasurer William A. Martin Board of Governors Chair David Vandergriff Young Lawyers Section Chair Tim Cullen Executive Director Don Hollingsworth

13 Pre-Suit Considerations in Nursing Home Litigarion

by Susan N. Childers

Associate Executive Director Judith Gray

BOARD OF GOVERNORS F. Thomas Curry Thomas A. Daily Elizabeth Danielson Kay West Forrest Lance B. Gamer Dave Wisdom Harrod Robert "Skip" Henry Gwendolyn Hodge Jill ]acoway Philip E. Kaplan Edwin N. McClure Lance R. Miller Marie-Bernarde Miller James M. Simpson, Jr. James D. Sprott Danny lhrailkiU Teresa Wineland Robert E. Young

13 Defense Perspective Litigating Nursing Home Cases

by Patricia Sinlm Harris

J8 Absent a Confidentiality Agreement, Secrets of the Poultry Trade Become Scrambled Eggs: The Supreme Court's Analysis in ConAgra, Inc. v. Tjson, Inc. by Mark Murphey Henry

A NEW PRESIDENT FOR 2001-2002

LIAISON MEMBERS H. William Allen Tom Overbey Judge James H. Gunter, Jr. Carolyn B. Witherspoon William Wright

Th~ Arkalls/ls

Lilwyer (USPS 546-040) is published quarterly by theArkansas Bar Association. Periodicals postage paid at Wille Rock, Arkansas. I'OSTMASTER: send address changes to Tht Arkllllsas Lawyer, 400 West Markham, Uttle Rock, Arkansas 72201. Subscription priC\" to non-member.; of the Arkansas Bar Association $25.00 per year. Any opinion expressed herein is thai of the author, and nol necessarily that of the Arkansas BaT Association or The Arkansas Lawyer. Contributions to 'fht Arkansas Lawy~r are welrome and should be sent in two copies to EDITOR, TIlt Arkansas Lilwyer, 400 West Markham. Wttle Rock. Arkansas 72201. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawytr at the above address. Copyright 2001, Arkansas Bar Association. All rights

~"'.

28 Sandra Wilson Cherry by Pat Jones

Contents Continued on Page 2

Contents VOLUME 36,

UMllER 3

In This Issue

President's Report, by Sandra Wilson Cherry

Askansas Supreme Court Historical Sociery, Inc.

Executive Director's Report, by Don Hollingsworth

Annual Meeting Award Recipients

36 State Courts on the Road to Change

Justice for All

17 Book Review, by Richard C. Downing

CLE Calendar

Judicial Advisory Opinions

Mock Trial

Lawyer Disciplinary Actions

West Wing Addition to Justice Building Dedicated

In Memoriam

YLS Section Report, by Tim Cullen

56 Classified Advertising/Index to Advertisers

ARKANSAS BAR ASSOCIATION 400 W. Markham Litile Rock, Arkansas 72201 HOUSE OF DELEGATES Delegate District I-SE: Ray Allen Goodwin Delegate District 2-5E: Mark R. Johnson, Katharine C. Wilson Delegate District ]-SE: Mich.ad E. MulJa1Jy. Paul D. Waddell, [Xnnis Zoplcr Delegate District 4-SE: Bill E. Br2c~. Jr. Delegate District S-SE: James Bradlq Delegate District 6-SE: Chris Morledge Delepte District 7-SEt Donald E. Kee Delegate District 8-5E: Howard L Manin Delegate District 9-SE: James Par Rowers Delegate District 10-5E: William Kirby Mo~r. David Sims Delegate District 11-5E: Paul W. Keith Deiepte District 12-5E: James Hamilton Delegate District 13-SE: St~C' R. Crane, Brian H. Ratcliff, Robin Carroll Delegate District I4-SE: FrmkA. Polt, ChrisdeAdanu Delegate District 15-5E: Barry D. Barber, Todd M. Turner Delegate District I6-SE: Ronald D. Kt:lsay. John T. Vines Delegate District 17-SEt James Jackson Delegate District: l-NW: Edwin N. McClure, Glenn E. Kelley, Hardy W Croxton, Jr., George R. S~nce Delegate District 2路NW: Ernest B. Cate, Boyce R Davis, April M. Rye, Shannon L. Fant, Raymond L. Niblock, Steven S. lega, lim Snively, Matt Durrett, Chris Reed Delegate District )路NW: Niki Cung. Claude S. Hawkins, Jr., Wyman R Wade, Jr., Eddie H. Walker, Jr., Shannon 1. Blatt, limothy C. Sharum, Jason Martinez. Delegate District 4-NW: Daniel B. Thrailkill Delegate District 5-NW: Gordon Webb Delegate District 6-NW: John T. Tatum, David L. Eddy Delegate District 7-NW: Danny M. Rasmussen, Rhonda Wood Delegate District a.NW: Ted Sanders Delegate District I-e: Brad Hendricks, Gwendolyn D. Hodge, Ron A. Hope, Philip E. Kaplan, Harry A. Light, Stark Ligon, Charles C. Owen, Harold Evans, Charles L. Schlumberger, Don K. Barnes, Elizabeth A. Thomas, Marshall S. Ney, Melva J. Harmon. John C. Wade, Jeff Broadwater, Marcella J. Taylor, Reed R. Edwards. M. Stephen Bingham, John Wyvill, Causley Edwards, David Sterling, Parrick Harris, Brenda Srallings, Mark Allison, David Raupp, Rick R:unsey. Patrick D. Wilson Law Student Representatives: Valerie Glover, University of Arkansas School of Law; Jason Lee, UALR William H. Bowen School of Law

T~I

,lrkllSlS 1,IWjlr

M'WW.lrk~lr.l:I.

1ll'I'sidl'nl's IIl'plll't

Uniting Behind a Clear Vision Sandra Wilson Cherry ast year the members of our Association proved mar mey could play cogether magnificently to achieve a common goal. one which is of benefit co all OUf citizens and to me justice system. Under the leadership of Ron Harrison, President of the Association, and Jim Julian, Chair of the Amendmenr Three Committee, Association members throughout Arkansas commined their time, energy, and, in some cases, their fortune to achieve passage ofa new judicial anicle. It was exhilarating co realize the power of OUf Association to effectuate change when its members unite solidly behind an effort to carry Arkansas forward. While we are still stimulated by our victory at the ballor box we must unite behind a clear vision of where the profession must go in this new century. At a time when the practice of law is threatened by change so swift and sweeping it is difficult to fully comprehend its impact, we must first insure that our profession is firmly rooted in a tradition of service- to our dients, to the justice system, and to our communities, worthy of preservation. We must then determine how we can best preserve the traditional practice oflaw and yet still move beyond me status quo to meet me challenges of change. In me coming Bar year we will strive to accomplish mese goals by beginning new initiatives and continuing successful efforrs now in place. As lawyers we must work to maintain our leadership role in society through continued emphasis on ethical and civil conduct worthy of our profession. In coming years. the public will judge, not only our profession. but the entire justice system in large parr by the way lawyers pursue meir livelihood. Through rhe

organization of mentoring programs, through professionalism initiatives in the law schools; and through renewed efforts to instill in new lawyers the obligation to serve not only the profession bur the community we will insure our professionallongeviry in an increasingly foreign world of multi-disciplinary practice. multi-jurisdictional practice, and mind boggling technological advances. We must continue our efforts to bring more people of color into the mainstream of the Association and the practice of law in Arkansas. No longer is this just the right thing to do. or even the smarr thing to do. It is the only thing to do if we are ro successfully maintain our relevancy when faced with the ever changing demographics of the state and nation. Entering its second year, the Arkansas Bar Diversity Commission, chaired by Judge Henry Jones and Past President Ron Harrison, is developing plans to bring law firms, major corporations, law school counselors, and well qualified minority lawyers together co address the hiring and retention of the minority lawyer. Finally, we must work diligently to educate our youth on the law and practice of law. By continuing our successful programs, such as the Mock Trial competition, and initiating new ones such as a web site for youth education on the law, we can make a difference, albeit difficult to quantify, in maintaining an informed public, a public in possession of a clear understanding of the justice system. Like so many of you, I love this profession and am devoted to the Association. As your new President, I will do whatever is within my ability ro advance the cause of both in the coming year..

It's easy to get good players. Dettin' 'em to play together, that's the hard part. â&#x20AC;˘ Casey Stengel

I'll. 16 10. I/Summer 200 I.

Tie lrkalSlJ LaM)er I

Old Dog

Articles of Incorporation The lIldefsl~

9Cbng as II'lCorpofalOfS ole corporaCloo lJ'lder the ArkaoSas BusIness COIl)Ol'ooon Act (Act 958 of 1987). adopt the foIowIng Articles of incorporation of suctl Corporation:

Wwt coal.-tiM . . . " C ~•• °lDcOlporIlled". oe-,.y". •......d·. 0I1be ~ "Ccwp'. 0t-,0, "Co.' • 0U4.' 01 _ _ Of

1Ibbr'""""'-' ot1ib ..,art.IDOIbef~.

New Trick Now, there is a faster, easier way to file corporation documents in Arkansas. The Online Filing System for Corpor tations, or OFS, was developed by the Secretary of State's office to pr omote electr onic gover nment in Arkansas. OFS is available 24 hours a day, 7 days a week, making the task of filing corporations documents convenient and maybe even fun!

Here is a just a sample of what is available: • Articles of Incorporation for Domestic, For eign, LLC, and Non-Pr ofit Entities • Registration of a Rctious Name for Domestic, Par tnership, and LLC Entities • Registration of a Corporate Name for Domestic and For eign Corporations • Domestic Corporation Franchise T ax Registration

[Wfut ill'

IIi "l'ft III' 's IIl'pm'l

New Opportunities, Professionalism, CLE Don Hollingsworth E-mail: dhollingswonh@arkbar.com

arlier this year the Supreme Court of Arkansas amended the CLE Rules to allow professionalism courses [0 coum for I hour ethics requirement each year. OUf Associarjon had supported this rule change, which was proposed originally by our Continuing Legal Education Commircee under the leadership of Past Chair Charles Owen. Rule 3(A) of the Arkansas Rules for Minimum Continuing Legal Education now reads as folJows:

"Ethics may include professionalism courses addressing the principles of competency. declicacion to the service of clients, civility, improvement of justice. advancemenr of the rule of law, and service ro the communicy. Professionalism courses may include a lawyer's responsibility as an officer of rhe Coun; responsibility to treat fellow lawyers, members of the bench, and clients with respect and dignity; responsibility co procect the image of the profession; responsibility generally to public service; the duey to be informed about methods of dispute resolution and to counsel clients accordingly; and misuse and abuse of discovery and litigation." ClE planners are encouraged to include professionalism components in future ClE programs. Arkansas is now part of a growing trend nationally CO emphasize professionalism in seminars for lawyers. Additionally, several committees of our Associatjon are working on other initiatives to improve professionalism among all lawyers in Arkansas.

New Computer Training for Members Whether you are a novice or expert with computers, we have a new member benefit which you may want to try. The Arkansas Bar Association has arranged for members and their employees ro receive a 15% discount on computer training classes through New Horizons. Some members are already familiar with the New Horiwns Computer Learning Center in Sherwood, Arkansas through attendance at our "Basic Computer Skills" training. (This basic skills training will continue ro be offered, and the training dates are listed in the ClE calendar.) With this new member benefit, members and their employees may select from a wide range of computer training classes offered at New Horiwns. For more information, see the member benefits summary in this issue at page 6. We are pleased that this new benefit is also available to the employees of Association members.

Leave a Legacy A new program in Arkansas to encourage charitable giving has been implemented by a group of civic minded individuals, including a number of our members. You are encouraged to become familiar with this new program, Leave a Legacy. A description of Leave a Legacy by John Wade is in this issue of The Arkansas lAwyer. John is the Chair of our Probate and Trust Section. Our Board of Governors and House of Delegates have endorsed Leave a Legacy, and leaders from our Probate and Trust Section, Tax Section, and Young Lawyers Section have been instrumental in getting the program started. The involvement of attorneys is important to its success.

New Association Sections Thanks to the good efFons of numerous members and our governing bodies, our

Association now has t\venry-four Sections. The newest Sections arc Civil litigation, Debtor/Creditor, Disability law, Intellectual Property, International Law, Juvenile Justice & Child Welfare, Securities Law, Small Firm & Practice Management, and Torr Law. The new sections resulted from a reorganization of the Association's committee structure, which included the elimination of substantive law committees in favor of sections being the primary vehicle for members to network within substantive law areas. For a complete list of the t\venty-four Sections and their annual dues, one may visit www.arkbar.com and click on "Committees and Sections." During July many of the 24 Sections should have their own web pages operational on our website. Included will be a section listserv and complete contact information for each section member.

Lobbyist Alice Holcomb has retired as the lobbyist for the Arkansas Bar Association. Alice performed outstanding legislative advocacy for our membership during the past three years, and she will be sorely missed. Your Association will be hiring a new lobbyist in me near future.â&#x20AC;˘ INTElLECfUAL PROPERlY ARTIClES REPRINTED

The following articles on intellectual property from the Winter 2000 issue of The Arkamas Lawyer have been reprinted as part of the new Business Law Manual published by the Iowa Bar Association: "A Brief Tour of Hot Topics" by Ray F. Cox, Jr.; "Unfair Competition in Arkansas" by Tim A. Cheatham; "Everything You Ever Wanted to Know About CopyrightS (Almost) But Never Bothered to Ask" by Dennis B. Haase; and "Of Patent Law on Everyday Practice" by Joe D. Calhoun.

fol.l610.llSommer 2001

Tbe ,\rk~OS3ll.~W!er

The POWER of

New Computer Training Have it Ytmr Way! Customize YOttr Library ofAssociation

Association members and their employees will receive a 15%

Handbooks to Suit YtJUr Personal Style

discoum on computer classes offered by New Horizons in

Select from among prim offerings including the Arkansas Form Book, Domestic Relations, Debtor/Creditor, Probate Law, Handling Appeals or Real Estate Tide Standards in Arkansas.

Sherwood, Arkansas.

Contact Todd Armstrong at New

Horizons: (501) 833-3900, ext. 209 or tarmstrong@nhlr.com.

The computer classes available include beginning, inrermediate

Choose the Arkansas Form Book, Dehror/Credirof or Probate law Handbooks in word processing format.

and advanced levels. Both Word Perfect and Word are taught, as

OR Opt for the simplicity of a CD ROM containing anyone or any combination of following: Arkansas Form Book, Debwr/Creditor, Probate Law, Handling Appeals in Arkansas or Real Estate Tide Standards in Arkansas.

Watch for details on the latest technology offering when a new Arkansas Bar Association member benefit wiU make the Practice Handbooks available on the Internet through Lexis Publishing.

weB as more than 30 other courses which may be relevant to attorneys and their employees, such as Outlook, Excel, Access and Windows. This new computer trallllllg benefit for Association members supplements the "Basic Computer Skills for Lawyers" classes which are still being offered by New Horizons and the Arkansas Bar Association. The basic computer skills offering is a group class for approximately 20 attorneys. It is only for novices. Check the

To order call 501-375-4606 or 800-609路5668 or email dgerald@arkbar.com. Or visit our website at www.arkbarcom for further information.

Association's CLE calendar for the next available class or call the Association office.

our Membership ®

arkansasfindalawyer An on·line attorney directory for Association members only. Review the directory by going ro www.arkansas6.ndala~r.com

• Provides Association members a cost-effective. new source of

diems with an accurate up·to· date listing - in over 50 areas of practice. • frcc Link [Q firm's website.

The cornerstone of an attorney's professionalism is

up-ro-date information and

Insurance Discounts

Call Rebsamen Insurance at 501-664-8791 or 888-2726656 for Association discounts on: • Group Term Life Insurance • Professional Liabilicy • Accident • Hospiral Indemnity • Overhead Expense • Disahilicy Income • Long Term Care • Critical Illness

Call UPS ar 800-325-7000 and identify yourself as a member of the Arkansas Bar Association or use account #CP290001685.

skills. The Arkansas Bar Association provides

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comprehensive s£3cewide CLE program, and members pay reduced tuition!

ABA Members Retirement Program. Call 800-826-

8901 or visit the website at http://abra.ris.ssga.cQm.

Professional Networking The Arkansas Bar Associadon is the best opportunity in Arkansas for attorney

interaction through the Association's public service projects. sections, and comrnircees. The Annual Meeting of me Association each June is attended by 1,000 Arkansas 3norneys and hundreds of family members.

Credit Card Program The MBNA Platinum Plus MasterCard includes a card with the Arkansas Bar AssQciation logo, no annual fee. miles plus optiQn, a low APR and travel services. Call 800-847-7378 fQr an application.

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Association members can utilize the conference room at the Arkansas Bar Center for client meetings, depositions and similar matters. Comact the Association office ar 501-375-4606 or 800-609-5668. The room has seating for 12 tQ 14 persons. The Bar Center is located across the street from the Pulaski County Courthouse.

The Arkansas Bar Association has historically worked to secure adequate funding of the court system, to revise outdated laws, and tQ provide needed legal information to the public.

Th~

Advisory Ethics Opinions 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 Comminee can help. Within specific guidelines, the Committee will issue an opinion on the member's proposed conduct. There is an administrative charge of $50.

Association members do this through the legislative program, sections and commitrees, the Association's Mock Trial Program, the Young Lawyers Section's projectS. and special studies.

Booklets & Guides Consumer Law Handbook Senior Citizens/Caregivers Guide • Small Claims Bookler Arkansas Veterans' Handbook CaJl50l-375-4606 ro order or download from www.arkbar.com

YOU PUT A LOT OF YOURSELF INTO YOUR WORK.

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I Al3597 I

JUSTICE

FOR ALL M

Bumpers Honored at First Annual Access to Justice Symposium

ore than J J 5 lawyers. judges. law school leaders and, communiry leaders assembled in Lirde Rock March 23 ro consider how (0 champion justice for all Arkansas residclHs. The first annual Access CO Justice Symposium.

cosponsored

the

Arkansas

Bar

Association and the Arkansas Legal Services Program focused on six challenges - or needs that the Arkansas justice communiry faces: I. Effective delivery of advice and brief serviCes;

2. Increased pro bono involvemenr; 3. Increased resource development;

4. Development of statewide leadership;

Former Senator Bumpers was honoredfOr his work as a member of the Senate Appropriations Committee, where he fOught fOr

5. More effective collabonnion; and 6. Alleviating ingrained parrerns of legal need facing the poorest cidzens. Repons were prepared by working groups which focused on each [Opic and are available from Central Arkanss Legal Services. The plan is to form collaborative work groups [0 conrinue the state planning process. John McKay. President of Legal Services Corporatjon, which distributes federaJ funding [0 legal services programs in the states, was on hand to kick off the symposium. Another highlight was the presenmcion of the first annual Access to Justice Award to former U.S. Senator Dale Bumpers. Former Senator Bumpers was honored for his work as a member of the Senate Appropriations Commirree, where he fought for continued and increased funding for the legaJ services programs in the mid-to-Iate eighties and early nineties. Four Arkansas legal services directors pointed our that Arkansas is one of only 1I States that does not provide some kind of state funding. Olan W. "Butch" Reeves. Chief Legal Counsel for the Governor, was among the presenters at the symposium along with Ron Harrison, President of the

Arkansas Bar Association; Judge WHo "Dub" Arnold. Chief Justice of the Arkansas upreme Court; and Judge James Moody. U.S. District Judge for the Eastern District of Arkansas. The four discussed how groups could work together toward full and meaningful access to the justice system. Don Hollingsworth. Executive Director of the Arkansas Bar Association, facilirated a stakeholder panel featuring a wide-ranging group of instirutional providers and advocates discussing the legal needs faced by various constituencies and how best to collaborate and allocate resources to meet those needs. On that panel were Bill Brown, Director of the Office of Human Concern - Community Groups; SCOtt Holladay, Director of Advocacy Services, CareLink - Elder Community Groups; David Manley, Chief Administrative Law Judge. SSA - Administrative Law Judges; Judge Oily Neal. Arkansas Court of Appeals - Judiciary; Susie Poimer, Executive Director, Arkansas IOLTA Foundation, Inc. - Foundations; Carl Sachs, Secretary-Treasurer of the board for Western Arkansas Legal Services Clients; Vicki Supine, Northeast Arkansas Council on Family ViolenceDomestic ViolenceVictims; Tim Tarvin, University of Arkansas School of Law Law Schools; Darrin L. Williams. Chief of Staff, Arkansas Attorney General's Office - tate Agencies; and Judge Joyce Williams \Xlarren, Circuit & Chancery Court, Sixth Judicial District - Judiciary. In a discussion of state planning efforts, directors from four of the state's six legal services programs mentioned East Arkansas rwo planned mergers. Legal Services. Ozark Legal Services. and Legal Services of Northeast Arkansas will merge and Western Arkansas Legal Services will join the Center for Arkansas Legal Services by the end of the year.â&#x20AC;˘

continued and increased funding fOr the legal services programs in the mid-to-late eighties and early nineties.

np \r~lRllll,a\l!pr

\I\I\I.lr~hlr.rGI

L_ji:' Nn" COlilur, Chnir ofth_ Legal Services Committee, served as modalltor for flu symposium.

Where would our country be without lawyers?

[I]

We would lack the legacies ofJohn Adams, Thomas Jefferson and Patrick Henry. Wc'd live by rules of men and whjms, rather than rules of law. Help protect the ideals our forct:1thers fought for. Join our mission to restore the noble ideals of our profession. PRIMERUS CaLI 1-800-968-2211 or visit Primerus.com. For yourself. And for your country. Be proud. Underwritten by BosweLl Law Firm, Primerus Lawyers, Bryant, AR.; Memphis, TN.

Focus

ON NURSING HOMES

NUNmgHomeFmudAndAbm~

Making A Federal Case OfIt by Sandra Wilson Cherry arly on an August morning in 1995. Augusta Gray was found on a gravel road outside the Arkansas nursing

home where she lived.

Curled in a fetal

In addition to me false incidem report, the rwo prepared other fraudulent documents which were submitted to regulators, including a chart which falsely

reflected

Ms. Gray had been monitored

position, Mrs. Gray had a deep wound on her forehead, and various cuts and bruises. The nursing home's Director of Nursing, along with an aide, brought Ms. Gray inside to her room where they changed her

throughout me night prior to her death. The pair were interviewed twice by agents of me FBI and a state police detective. During both interviews they maintained the false

c10rhing and placed her in her bed.

story rhey had created

is rhe healrh care fraud starure, 18 U.S.c. 1347. Section 1347 provides rhar whoever executes or attempts to execute a scheme to

defraud a healrh care benefic; program faces upon conviction a sentence of imprisonment up [0 tcn years, and. in a case

where bodily injury or dearh resulr from the fraud, a sentence of up

20 years to life.

sentenced to 18 months imprisonment. The objects of the conspiracy included

The False Claims Act, 31 U.S.c. 3729, et seq., provides civil sanctions, including treble damages, for fraudulent claims filed wirh federal agencies. Thus, nursing homes filing false claims with Medicare and Medicaid for care provided to elderly residents can be substantially punished. When filing such claims. nursing homes

and

giving f.llse statements to HCFA and the

are certifying that adequate cacc was

returned her to the nursing home without xrays or a physical examination having been

Federal Bureau of Investigation in violation

prosecutors in Arkansas to date. In a similar matter, a nurse was recently convicted for causing a nurse under her direction to falsify certification for machines which test for

provided to the patient recipient. If Ms. Gray's nursing home had filed a claim for her care during rhe 24 hour period from when she was found on rhe road until she died, rhe claim could come wirhin rhe purview of rhe Act. The False Claims Act would most frequently apply, however, to cases in which substandard, indeed, grossly inadequate care

blood sugar levels. In 1996, Congress substantially increased

is provided to a nursing home resident over a period of time.

the arsenal of criminal statutes available to

The Department of Justice and the Federal Bureau of Investigation, working in concert wirh the Inspector General for me u.s. Department of Healm and Human Services, have substantially increased their

An ambulance then rransporced Ms.

Gray to a nearby hospital, along wirh an incident report prepared by the Director of

Nursing. The report falsely reflecred Ms. Gray had fallen in her room and Struck her forehead

personnel

a night stand.

bandaged

her

Hospital

wound

performed. Less than 24 hours larer, Ms. Gray was found dead. Thus began a four year conspiracy berween the Director of Nursing and the nursing home's Administrator to conceal the circumstances surrounding Ms. Gray's death from inspectors from me Arkansas Long Term Care Office which investigates

complainrs on behalf of rhe U.S. Health Care Finance Administration (HCFA), the agency which cercifies nursing homes for the

receipr of Medicare and Medicaid funds.

Sandra Cherry is an Assistant U.S. Anorney and

President of the Arkansas Bar Association. She is a graduate of the

University of Arkansas School of Law.

explain their

patient's death. The Administrator and Director of Nursing were charged with and convicted of

conspiring to defraud HCFA.

Both were

of 18 U.s.c. 1001, and impeding and obstructing a health care investigation, a

violation of 18 U.S.c. 1518. This is one of two cases of its kind brought by federal

federal prosecurors in addressing healrh care fraud. Nevertheless, starutory means by which wrongdoing in nursing homes can be prosecuted, either civilly or criminally, No federal means is remain limited.

available [0 address directly even rhe most flagrant physical abuse, even deam, io a nursing home. Only when fraud occurs, either in reporting to regulators, as in the

case described ahove, or in filing false claims for services provided to residents, can such

wrongdoing in nursing homes be addressed. The most substantial weapon provided by Congress ro rhe Department ofJustice in its pursuit of nursing home fraud and abuse

resources in recent years to buttress their investigation of fraud and abuse occurring in connection with nursing home care for

our elderly. In Arkansas, me United Stares Artorneys have joined wim rhe Arkansas Attorney General to investigate nursing home wrongdoing and to prosecute such criminal activity hom civilly and criminally in federal courts, when warranted.

Focus

ON NURSING HOMES

PLAINTIFFS PERSPECTIVE:

Pre-Suit Considerations in Nursing Home Litigation by Susan N. Childers n many respects, nursing home litigation is easy. It is easy to feel compassion for the growing numbers of neglected elderly in our society. It is easy to be appalled hearing the heart-wrenching stories of the F.l.mily membe" and loved ones of those who have been abused by a system that is failing those it purports [Q protect. It is easy, and in faCt almost impossible, nor to become emotionally involved in the anguish of those harmed and their loved ones. It is because of the aJmost certain feelings of compassion that each of those stories evokes that the pre-suit stage of nursing home litigation is possibly the most imporcant, and most difficult, phase in the process. While the concerns and complaints of the family members of a loved one who has suffered injury or even death while residing in a long-term care facility are certainly real and valid, they do nor always indicate neglect that forms the basis for a successful lawsuit against the facility. The nursing home industry will contend that almost all of the injuries suffered by a nursing home resident are anributable (Q pre-existing medical conditions and the natural aging process. It is (he plaintiff's anorney's responsibility to identify injuries and incidents that are the result of chronic institutional neglect. ursing homes that admit residents with a known mÂŤlical condition, such as Alzheimer's disease or diabetes, have a duty 10 undertake effortS to treat or minimize those medical outcomes. By mere vinue of admission, nursing home residents do not "assume the risk" of being neglected or abused. Because most lawye" are sorely lacking in the area of geriatric medicine. using medical expertS to review the n""ing home chan and other medical records is crucial to determining whether the facility has committed any acts or omissions that will warrant the filing of a lawsuit. Some potential clients have ....ided in the facility

for many years, often with numerous intermittent hospital visits. Obtaining aU of the relevant and often voluminous records can be expensive and time consuming. It is rare that an initial interview with a family member will provide an adequate picture of what has really occurred from a medical standpoint. Therefore, the importance ofan appropriate review cannot be overlooked. Another important part of the pre-suit process is to evaluate the facility itself. The Arkansas Office of Long Term Care regularly surveys nursing facilities using standard guidelines. This review results in a survey document that cites the facility for any substandard conduct, thus the Office of Long Term Care is an invaluable resource to determining whether the facility or its management has exhibited a past pattern of providing inadequate care. Obtaining this information is fairly simple because these documents are a matter of public record and are required to be posted in rhe nursing home itself. Unfortunately, most family members are unaware of these inspections and never even learn of their existence uncil after litigation has commenced. Ot surprisingly, most nursing homes do not tout their su.rvey performances to prospective family members seeking to place their loved ones in a nursing home. When a resident is unable to speak for him or herself, it is also important to consider the family members involved. Unforrunatdy. during contentious litigation against a nursing home the resident's loved ones will mosr likely find themselves under arrack by defense counsel who seek to place blame on the family for failing to complain more often to facility management or for failing to move the ....ident to another facility. To an emotional family member who viewed the placement of the ....ident in a nursing home as a last resort or who was unaware of the extent of the neglect being suffered by their loved one until it was too

late. this can be a shocking and difficult accusation to bear; nonethdess. this fact of nursing home litigation must be considered by both the F.lmily and the attorney before going forward with litigation. In most cases filed against nursing homes, the defendants are nor me actual caregivers hired by the facility, but rather the corporations who have failed to provide necessary and available resources in order to prevent injuries to the residents of the nursing homes they own. Many times discovery will reveal a complicated web of corporate entities that comprise management companies. parent companies. the licensee of the F.lcility, the real property owner and other related entities. Determining which of these corporations actually made decisions that resulted in your resident's injuries can be difficult. In addition, defense counsel will mOSt likely refuse to provide discovery from these corporations absent an order compelling them to do so by the court. It may be only after taking the depositions of various corporate representatives and facility adminiStrators that sufficient proof of the various corporations' relationships exists to warrant a motion to compel. However, it is crucial at an early stage of the litigation to educate both the coun and defense counsel regarding the claims against the corporation. Attorneys for defendants will attempt to shift blame from the corporation by claiming that the case is really against the caregive" of the facility. It is important to remember though that it is the corporate decision mili" who set the budget and

About the Author Susan Childe" is an anomey with W~kes & McHugh, P.A. in Little Rock.. She is a 1995 graduate of the Unive"ity of Arkansas at Little Rock..

Focus ON NURSING HOMES force nursing homes

operate with

inadequate staff and supplies.

A great way to find the right lawyer for you!

The determination of what parties are

actually responsible for the damages is also important in deciding what causes of action to allege in your complaint.

Log onto me Internet and go

dB www.arkbar.com. Then,

you're just a dick away from arkansasfindalawyer.com

Arkansas courts have held tha< acts and omissions occurring in a nursing home are not auromaticaJly medical malpractice. Therefore, certain portions of your cliem's claims may fall under the definition of ordinary negligence while others may fall under the Medical Malpractice Act. For example, the failure to adequately staff a facility would logically be a claim for ordinary negligence rather man medical malpractice. Other potencial causes of action include outrage, wrongful death, breach of contract (based on the Admission Agreement signed by the resiclem upon entty into the facility) and a claim for punitive damages. In 1999, the Arkansas Legislature passed the Resident's Rights Act codified at Ark. Code Ann. § 20-10-20 I, et seq. The purpose of the Act is to provide basic srandards and enforcement for health, care and treatment of persons in long term care facilities and applies to causes of action accruing afier July 31,1999.

A direcrory of participating attorneys. free and available online, anytime. counesy of the Arkansas Bar Association

400 W Markham· Lirtle Rock, Arkansas 72201

Phone 501-375-4606·1-800-609-5668· Fax 501-375-4901

The sad reality is that these lawsuits are necessary in order to protect the lives o~ nursing home residents. The suits are one

of the few ways residents and their families have to hold the nursing home industry accounrable. The pre-suit phase of a nursing home case can be challenging and frustrating for the plaintiff's lawyer. However, a positive result for the plainti will certainly make the process worthwhile. See Baiky v. Ro" Carr; 307 Ark. 14, 817 S.W. 2d 412 (1991); Brown v. St. Paul; 292

Ark. 558, 732 S.W: 2d 130 (1987); "7att v. St. Paul; 315 Ark 547, 868 S.W:2d 505

(1994); Howard v. Ozark Guidance Cmrn-; 326 Ark. 224, 930 S.W.2d 341 (1996); McQ!iay v. Gunrhorp; 334 Ark. 534, 986 S.W:2d 850 (1999).•

1·800·275·8903 www.amfs.com medlca/experts@amfs.com

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Focus ON NURSING HOMES

Defense Perspective Litigating Nursing Home Cases by Patricia Sievers Harris laintiff attorneys have traditionally rejected potential claims of nursing home malpractice because of the mistaken belief that their clients' age combined with their pre-existing medical problems would result in limited oppormniry for damages sufficient to justify bringing a claim. In addition, nursing home cases are for the most parr no less expensive than the traditional medical negligence claim. ExpertS, depositions and time are substantial in both types of cases. However, in the past three years, nursing home malpractice suitS have become the new focus of many personal injury lawyers n.,ionally and in Arkansas. In a recent edition of the Wall Street Journal, ir was reported that me average award in nursing home negligence cases nearly doubled be<ween 1987 and 1994 from $238,285.00 EO $525,853.00. In addition, approximately twenty percent of all cases against nursing homes result in punitive damages, compared with five percent in omer <ypes of personal injury cases. Nursing homes have been the subject of a gre., deal of publici<y, bom nationally and in Arkansas. It is not uncommon [Q see television advertising, investigative shows, and other media productions focusing on me alleged abuse and neglecr in nursing homes. Understandably, all mis attention and focus has heightened the public's awareness of what many people have described as a systemic problem with nursing home care. As a «suIt of mese and omer factors, attorneys who <ypically defend medical negligence cases have found mat defense of nursing home negligence cases has become much more challenging. What makes a nursing home case different from a <ypical medical malpractice claim? Several experts suggest that it is the wide expanse of statutory law that has been enacted; others believe mat meories of elder abuse, greedy corporate behavior, and fraud and abuse

make nursing home cases different and potentially capable of high verdicts. Historically, a common law negligence cause of action against the long term care pEOvider was the primary claim made by a plaintiff. In that regard, long term caE< liabili<y was evaluated in me same light as medical negligence. Now, in addition to making a claim for medical negligence, plaintiff's counsel will allege violations of statutory laws, patterns of prolonged neglect and intentional actS as a basis for the injury or deam of me «sidem. Because nursing homes are dependent upon Medicare and Medicaid financially, me nursing home industry is regulated by federal law and regulations. These regulations are typically referred to as "OBRA" which a« regulations set form in the Omnibus Budget Reconciliation Act of 1987. 42 C.ER. § 483. Many plaintiff's lawyers contend in meir civil case on behalf of a resident mat mese OBRA «gulation. SCt out the minimum standards of care, which the nursing home must provide in its nursing care of residents. In addition to the substantial federal regulations, state laws have been passed which in many cases mirror me federal regulations. The SEate statutes range from requirements for licensing, staffing and resident's rightS to specifics concerning the physical structure of the nursing home. All of me «gulations and statutes become relevant in defending a nursing home malpractice case. It is very likely mat when a lawsuit is filed against a nursing home, plaintiff's counsel has already conducted an extensive investigation. If you «present me facill<y, you should assume mat plaintiff's counsel has already obtained and reviewed Office of Long Term Care surveys on me defendant facili<y, and will be familiar wim deficiencies cited in those surveys. Plaintiff's counsel wilI alteady have obtained the medical records from this facili<y on me patient. Plaintiff's counsel probably will have already

employed an investigacor CO identify and contact any former employees that can be located. In fact, by ,he ,ime defense counsel is hired co begin an investigation, plaintiff's counsel may already have in hand videotaped statements from former disgruncled employees who will 'estify ma, me defendam facili<y is short SEalfed, ,ha' mey were ove<worked, ma, ,hey did no' have appropria« supplies, and ma, ,here was not enough staffing co turn patients every two hours and co keep them clean and dEy. The goal of plaimiff's counsel would be to offer the testimony of these former employees, some of whom may have never provided care or treatment to the patient in issue, to establish a "course of conduct" wimin ,he facili<y ma, ul'ima<ely resulted in damage EO the pa'iem. Plaimiff's goal will be 'ry me facili<y by pUEting on evidence of poor survey tesuhs, including mose no' related in any regard to the patient in issue, and jUXEapose bom survey findings and me former employee testimony with a theory of corpora<e profirs over people. It is impossible in this shorr space to idemify each and eve<y facEOr ma, a defense lawyer should consider in representing nursing home facilities in these matters. However, severaJ such factors can be briefly highligh'ed. Firsr, defense counsel should identify, locate, and interview current and former personnel from me facili<y who provided hands on treatment to the

Patricia Sievers Harris an anorney practicing with Wright, Lindsey & Jennings LLP in Lime Rock. Her practice focuses on medical malpractice defense. She is a 1989 graduate of UALR School of Law.

Focus ON NURSING HOMES resident. Jurors would much ramer hear from the acrual carc givers with regard to the type of treatment the residcm received, as opposed co an expert who has simply reviewed the records and formulated opinions. Second. defense counsel should consider if Office of Long Term Care survey findings can be used in the defense of the facility. The defense lawyer should always request underlying documemation supporting each and every Office of Long Term Care survey in which the care of the resident in issue may have been evaluated. Those underlying documents may comain interviews with the resident in issue and a review of the resident's records mar may have very helpful information indicating thar the residenr is happy, and indicating that the investigator found appropriate care and treatment of the resident in various areas of inquiry. Third, particular care should be given to the "medicine" in the case. Defense counsel should identify particular medical specialties that might be of assistance in understanding the underlying medical conditions which contribute to and/or cause many of the resident's ongoing difficulties, including vascular specialises. endocrinologists, geriatric speciaJists, orthopedic surgeons. and plastic surgeons. Such specialists, when appropriate, can explain to a jury, for example, why the resident's underlying diabetes and peripheral vascular disease caused stasis ulcers to develop on the resident's extremities. through no negligence on the parr of the nursing home.

Prof. Michael Tigar "Telling the Story of Your Case" plus Tort Law Section Seminar Little Rock Professor Michael Tigar, one of the nation's big time Iitigators and advocates, will speak in the morning session on "Telling the Story of Your Case." Mike Tigar is known for his magnetic podium presence and has been compared to Edward Bennett Williams or Irving Younger.

CONCLUSION Attorneys who become involved in defending nursing home litigation should bear in mind that such litigation is an entirely different animal than any other cype of malpractice litigation. Thus, counsel should make every effort to acquaint themselves with aU applicable Statutory and regulatory provisions, and to devote a great deal of time, energy, and resources in defending such cases.â&#x20AC;˘

Mike Tigar's uncompromising passion for justice has led him to the counsel

tables of such notable clients as Angela Davis, the Chicago Seven, former Texas Governor John Connally and accused Nazi war criminal John Demjanjuk. More recently, he represents convicted Oklahoma bombing conspirator Terry Nichols. The cases he has tried, and their verdicts, have had a profound impact upon the modern body of American law. In the afternoon session, the Tort Law Section will present other noted speakers on related topics.

Contact Virginia Hardgrave at

800-609-5668. SO 1-375-3957, vhardgrave@arkbar.com, or check out the CLE page at:

www.arkbar.com

Book Review

An Attack On the Abraham Lincoln Almanac Trial Legend Moonlight: Abraham Lincoln And The Almanac Trial (2000) By John Evangelist WaJsh A BOOK REvIEW BY RICHARD

DOWNING

ur country has two or perhaps three

nonreligious patron saints-George

Washington. Abraham Lincoln and, to a slightly lesser degree. Thomas Jefferson. For each, their legend is based upon fact sometimes decorated with myth. We trial lawyers are particularly proud of Lincoln for he was one of us. He literally rode, on the back of his horse. to various courthouses within the Illinois Eighth Judicial Circuir. As a self taught member of the Illinois bar, his trial lawyer skills were widely recognized. Prior to reading this book, I had the opinion I knew the Story of Lincoln's famous Almanac murder trial. (An opll1lOn probably shared by many Americans.) Afrer reading Moonlight. I discovered my opinion was incorrect. John Walsh's book Moonlighr is perhaps the first scholarly study of this trial-a faCt which surprised him and. though I did nOt verify Walsh's Statement, me roo. The SCOfY of the Almanac Trial itself has been cold and retold. !cs depiction was a major porcion of John Ford's classic 1939 movie, Young Mr. Lincoln, starring Henry Fonda as Lincoln. The Almanac Trial involved [he killing of a man named Press Menger. The two persons charged with the crime were James Norris and a rweney-four year old man named William "Duff" Armstrong. Armstrong became Lincoln's link [Q case and his client.

Lincoln lived his young adult years in a small village of New Salem, Illinois.

lincoln worked as a general score clerk. Within New Salem, wrestling was a form of male enrertainmem and spoce. Lincoln's wrestling barde with a certain resident, Jack Armstrong. has become pan of the Lincoln legend. A friendship developed between Armstrong and Lincoln. Armstrong's wife was Hannah and his young child, at the time, was Duff. After New Salem, Lincoln became a lawyer, moved co Springfield, Illinois, successfully ran and was elected co the U.S. Congress. returned to Illinois and developed a reputation as a fine civil trial lawyer. [n 1857, the year of the Menger death, Lincoln was involved in his successful Springfield, Illinois law practice. In rhe fall of 1857, Norris and Duff were indicted for the murder of Menger. Jack Armstrong, on his death bed. requested his wife concacr Lincoln to help his son Duff. Jack died and Hannah Armstrong wrote Lincoln a lener requesting Lincoln's help. Without hesitation and compensation,

Li ncoln agreed. Using available records,

author brings together the elements of the trial. The focus of the story turns [Q the other defendant, Norris. who, due (Q a successful motion for change of venue requested and granted to Duff's first set of lawyers, was tried first. The trial begins in Havana, Illinois only a few days after the indictment. The events preceding Metzger's death are described which included excessive use of alcohol and anger. Without giving away roo much of the story - Norris is convicted of manslaughter. This is the first portion of the story of which I was not aware. Lincoln's involvemenr comes, as previously noted, from Hannah Armstrong's request for help. Duff's case is transferred to Beardstown, Illinois. (Today, this courthouse is the only remaining and still in use "Lincoln courthouse.") After the granting of the conrinuance, the trial, rather than occurring in November, 1857, commences in May, 1858. (This is twO momhs prior ro [he famous Lincoln/Douglas debates.) The change of venue and subsequent trial delay proved to be very beneficial for Lincoln's trial preparation. Without the continuance, Lincoln would have had only

a few days to prepare Duff's defense. The continuance allowed Lincoln time to confer with Norris' attorney and have the benefit of his trial notes. The Almanac TriaJ begins in May, 1858. The two big defense issues are the cause of death and Duff Armstrong's involvement in the crime. There is no dispute regarding Duff Armstrong's presence at the time of the alleged crime. However, Lincoln's cross examination of the doctor's medical opinion regarding the cause of death demonstrates Lincoln's skill as a trial lawyer. It is also a particuJarly inreresting pan of the book. I still have not menrioned the almanac and Lincoln's use of it. Its use relates to the cross examination of an eye witness Charles Allen. Though there is no written transcript of the trial, the author pieces together evidence supporting his thesis. WaJsh's thesis is Lincoln was disingenuous in his defense of Armstrong and defended, according to Walsh. a person Lincoln knew to be guilty. Part of the evidence supporting Walsh's thesis, is a letter from an AJmanac Trial juror - John T. Brady. In his letter, Mr. Brady, years after the trial, describes the importance of Lincoln's use of the almanac ro discredit Charles Allen's account of the crime and DuffArmstrong's pa.rricipation. Therein, lies one of the secrets of the book which I will nOt disclose. I will say, contrary to popular belief, there was no dispute regarding whether or not there was a moon (the legend claims Lincoln used the almanac to prove there was no moon) the night of the crime. Rather, the issue is Allen's testimony regarding the position of the moon at the time of the crime. Lincoln's use of the almanac becomes the centerpiece of Walsh's attack upon the Almanac Trial legend and Lincoln personally. As a boy, my earliest reading experiences involved my reading of a Lincoln biography. I can recaJl how ir described Lincoln's birthplace, [he dearh of his mother and his self-taught education. A few years ago, I was able to visit Lincoln's Elizabethtown, Kentucky birthplace. See Book Review Continued on Page 56

I"ol.l! .\a.l/Sommrr iOOI

Thr ,Irlmas !,alller

Intellectual Property s anybody can attest. a secret is difficult co keep, especially onc mat concerns money or confers a business advantage. If in your legal pracdce you come across issues of trade secret pcmcction. you should be aware of cwo rdacively recem cases that seemingly impact the application of the Arkansas

Trade Secret law codified ar Ark. Code Ann. 4-75-601 (RepL 1996). Before analyzing the cases, ir will prove helpful ro understand me definition of a "trade secret." A "trade secret" means information, including a formula, panern, compilation, program, device. method. technique. or process, thar: [A] Derives independent economic value. actual or

potential, from not being generally known, and not being readily

Absent a confidentiality agreement, secrets of the poultry trade become scrambled eggs: The Supreme Court's

Analysis in

ConAgra, Inc. v. Tyson, Inc. By Mark Murphey Henry

Thp ,Irkanm I,all}pr

1I'\lw.arkharJ'nm

ascertainable by proper means to orner persons who can obtain economic value from irs disclosure or use; and [Bl is the subject of efforrs that are reasonable under the circumstances to maintain its secrecy. To give some perspective to trade secret law, it is important to recognize that the federal patent laws serve to protect an inventor for a limited amount of time, such that, in exchange for the complete disclosure of the invention, an invemor is granted the exclusive right to exclude others for a set period of time. Some invemors complain that the patent process is complicated and burdensome. Whereas disclosure is the hallmark in patent law, trade secret law stands in complete contrast in that a trade secret derives independent economic value purely as a function of the level of secrecy or confidentiality surrounding the process or compilation. Much like the complajnts surrounding the patent process, the business that wishes to protect trade secrets should recognize there is a fair amoum of difficulty and complexity in protecting trade secrets. Perhaps the most familiar example of a trade secret is the

formula for Coca-Cola. Had the founders of Coea-Cola applied for a patem, the formulation would be free for all to use because the term of the patent would have long since expired. In order to assure a long and lasting protection of the formulation, the wise founders Opted to keep the formula a secret. The Arkansas Supreme Court recently reversed a chancellor's application of the trade secret laws in ConAgm. Inc. v. Tyson Foods.

Inc., 30 S.W3d 725 (2000). Under the faCtS of the ConAgra case, three tOp-level executives were "raided" from Tyson by ConAgta. The chancellor opined that sensitive pricing information would be inevitably disclosed contrary to the Trade Secret laws. The following factOrs are to be considered in determining whether company information qualifies as a trade secret: (1) the extent to which the information is known outside the business; (2) the extem to which the information is known by employees and others involved in the business; (3) the extent of measures taken by the company to guard the secrecy of the information; (4) the value of the information to the company and to its competitors;

(5) the amount of effort or money expended by the appellee in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. After reviewing the above factors. the chancellor enjoined ConAgra from misappropriating any of Tyson's trade

secrets for a period of one year. Justice Brown based the Arkansas Supreme Court's reversal on ÂŁ\\1'0 grounds: (l) The information was not a "trade secret" because there was no restricdon on the customers from further revealing the sensitive pricing information. and (2) the three executives had not signed any writtm confidtntiality agrumem. The Court stated that "Tyson had in place no protection against post employment revelation of confidential information." The Court placed no importance on a company-wide "Code of Conduct" that expressly prohibieed employees fcom divulging Tyson's confidential information. and the Coun did nor address whether the executives had a fiduciary duty to Tyson. The issue of trade secrets and POSt employment contracts was next addressed by me Couce of Appeals on March 7, 200 I, in City Slick", v. Douglns, 73 Ark. App. 64 (200 I). In Douglns, an employee signed a combined "Confidentiality and Nondisclosure Agreemem" that stated, in part, that me employee would come imo contact with confidential and proprietary information, and the employee could not reveal the confidential information for a period of five years following termination of the employment. The Agreement broadly defined "confidemial information" as "all information [the employee would] see, hear, come in cOlHacr with or otherwise gain knowledge of, III connection with [his] employmem." The appellate court affirmed the chancellor's finding that the Agreement served as an unreasonable restraim of trade, and that it was an overly broad covenant not to compete "masquerading" as a confidentiality agreement. The author presumes that the appellate court invalidated the Agreement because of the overbroad definition of "confidential information" rather than the five-year limitation. (Generally, a five-year limitation on a standard post-employmem noncompete contract would fail because such noncompete agreements must have a reasonable time restriction.) The Issue of rime limits on

confidentiality agreemenrs is mentioned in

Allm v. Johar, Inc., 823 S. W.2d 824 (1992), wherein Juscice Brown, me aumor of the ConAgra opinion, joined in the disseming opinion and stated that "in no event should the information [cusromer list] be protected as a trade secret in perpetuity because that would violate the same public policy against restraint of trade we have declared to control noncompetition agreements." It is importam to draw a clear distinction between those agreemenrs that serve to protect trade secrers and those intending to restrain competition. The proreaion of trade secrers must not be tOO closely tied ro a time period as is the requirement of noncompete contracts, for if rhe confidentiality agreement conrains a definite period, the end of the period would signal the potential end of the trade secret on similar grounds ro [he rationale discussing "consumers" presented by the onAgra decision. However, ConAgra seemingly also scands for the proposition that, without signed confidentiality agreements, trade secret protection is difficult, if nor impossible to capture. In view of [he foregoing cases, it should be clear that confidentiality agreements are a necessary tool ro protect trade secrets. Moreover, a well-drafted confidemiality agreement will identify the nature of the confidential information and should be limited only to information that is reasonably necessary to protect the business trade secret and should nor be so broad as to include material freely available in the public domain. The contract should follow the logic that information that is in the public domain at the time of disclosure is non-confidential. The duration of the confidentiality agreement should nor relate to a date; instead, the duration should relate to the occurrence of a future event. It should point ro a time when the confidemial information becomes pan of the public domain by publication or otherwise, except by breach of the Agreement by the employee.â&#x20AC;˘

"Under the facts ofthe ConAgra case, three top-level executives were "raided"from 1Json by ConAgra. The chancellor opined that sensitive pricing information would be inevitably disclosed contrary to the Trade Secret laws. "

Mark Henry is a parmer with Henry & Cullen, LLP in Liede Rock and specializes 111 patents. trademarks, copyrighcs and issues related ro unfair competition. He is a 1997 graduate of the University of Arkansas School of Law at Fayetteville.

1"01. n No. ~/Slmler tOO I Til ,Irkusos I,owjlr

LEAVE A

LEGACYâ&#x201E;˘ arkansas

by John Cogan Wade, Chair, Probate and Trust Section and Member, LAL Steeting Committee Have you ever made a "decision by omission"? Were you somehow unaware of a meaningful opportunity that is no longer an opdon? Unfortunately. "decisions by omission"

Leave A Legacy Arkansas is a "win-win"for all Arkansans and presents

occur 1110rc frequently man

mOSt

of us care

co admic. Some drive in congested traffic, unaware of a safer and quicker route. Others suffer from sickness, unaware of a simple remedy. Many more have a will prepared, unaware of the opponuniry [Q

"leave a legacy" ro their community through a bequest to a favorite charity.

What is Leave a Legacy? cost-effective, community-wide A

marketing effort, Leave A Legacy

an ideal opportunity for attorneys to get involved and elevate the respect ofour profession.

The ,Irkmas LIWW www,arkbar,rom

(LAL)

seeks ro increase the awareness of bequests and other planned giving alternatives, particularly among individuals who otherwise may not be aware of such opportunities. A collaboration between the Arkansas Chapter of the National

Committee on Planned Giving (NCPG), nonprofits. professional advisors, and businesses. LAL promotes philanuuopy in general and is not a fund raising event for any charity in particular.

market and administer charitable planned

gifts,

In 1995, a small group of Arkansans

(including several attorneys) was granted

authority by the National Chapter of NCPG to form an Arkansas Chapter, The concept met with great enthusiasm and has grown rapidly, with over 80 members from across our State. During this same time, a

well-established

NCPG

Chap,er

Columbus, Ohio was receiving great acclaim for its "Leave A Legacy" campaign, which was so successful that NCPG sanctioned Leave A Legacy as a priority project and trademarked the name. In

1999, the Arkansas Chapter of NCPG decided to join over 70 other chapters in initiating our own statewide campaign Leave a Legacy Arkansas.

In support of Leave a Legacy Arkansas, the Arkansas Bar Association passed a

Resolur.ion in January, 2000 whereby the Association agreed to be a working partner with Arkansas NCPG to disseminate information to Association members. to inform them of the benefits of charitable giving. and to promote the Leave a Legacy Our program co the membership. Association was the first organization to join NCPG Arkansas in supporting Leave a

Where Did LAL Originate? LAL is a project of the National Chapter

Legacy Arkansas,

of NCPG, which is a professional association of 20,000 members from the United Scates and Canada who develop,

Why is LAL important? Wealthy underscand

the

individuals imponance

generally of estate

planning and can afford sophisticated advice, which on-en includes consideration of charitable planned gifts using trUSts and foundations. But what abom individuals who never seek such advice - either because they don't take the time or erroneously believe that they are not ofsufficienr means? Are such individuals making a "decision by omission"? Many worthwhile charities in our communities desperately need financial SUppOT[ from bequests, whether large or small in amount. Researchers predict that during me next 50 years, the wealth transferred between generations will exceed $41 trillion, and may well reach double or triple that amount. While an estimated 77% of Americans donate to nonprofit organizations during a lifetime, less man 3% include a charitable bequest in their estate plans. Imagine the impact if 10% of Arkansans left a charitable bequest.

How is LAL being promoted in Arkansas? A Steering Committee for Leave A Legacy Arkansas was formed and began a 4- Tier fundraising campaign in March, 2000. In Tiet I, members of Arkansas NCPG Board and the Leave a Legacy Arkansas Steering Committee made personal contributions (Q the program. In Tier 2, these individuals solicited charitable organizations, foundations and businesses with whom they had personal close ties, seeking seed money contributions of $1,000 ro $5,000. In setting an outstanding example at an early stage, the Arkansas Chapter of NCPG and [he

Arkansas Bar Association each contributed $5,000. The resulting momentum was instrumental in the raising of over $50,000 from an impressive group of charities, businesses and individuals from throughout the State. The final twO tiers will begin in the coming months. In Tier 3, over 2,000 charitable organizations in Arkansas will be asked ro become LAL members for a $100 annual fee. Tier 4 will consist of grant applications to foundations and businesses for major gifts. The collective goal for all four tiers is $750,000, which is the projected budget for the enrire three-year effort. LAL has engaged the public relations firm of Stone & Ward to mastermind this public awareness campaign to encourage people from all walks of life ro "leave a legacy" to their communities through charitable bequests. Every individual can make a real difference, irrespective of the size of the bequest. Beginning in early 2002, electronic and print media, special events and word of mouth will deliver this simple yet meaningful message throughout Arkansas. No specific charities will be favored. The campaign will benefit all charities, be they small rural programs or large urban institutions, as suggested by the slogan "a rising tide lifts all boats.". How can attorneys help? As the draftsmen for wills, attorneys arc indispensable to the success of this campaign. Leave A Legacy Arkansas will succeed only with the enthusiastic suppOrt of our entire Bar. Imagine the fate of the

路

campaign if a prospective donor asks an attorney about LAL, only to hear a reply of "Never heard of it"? Consequently, before the media campaign begins in 2002, Arkansas lawyers will be the focus of an information campaign for the balance of 2001. Starring with the Annual Bar Meeting in Hot Springs, all Arkansas attorneys will have the opportunity in 2001 to learn about LAL through presentations, exhibits, brochures and a website (which should be operational [his Fall). For LAL to accomplish its mission, all Arkansas attorneys must be aware of the campaign and prepared to provide informed counsel ro clients about charitable bequests. Attorneys who seek to counsel clients on such issues can register on arkansasfindalawyer.com and include "probate and estate planning" in their practice area. Leave A Legacy Arkansas plans to offer a website link to arkansasfindalawyer.com as a service to prospective donors who seek legal advice. Attorneys who prefer not to counsel clients on charitable bequests can nevertheless promote the campaign by sharing [he message and being prepared to refer prospective donors to qualified attorneys. Leave A Legacy Arkansas is a "win-win" for all Arkansans and presents an ideal opponuniry for atrorneys to get involved and elevate the respect of our profession. Please help to make this campaign our "legacy" to those whom we leave behind.

lster,

Sumlllll1J' of Actldemic & Professiollal Experience ...

Regblcrcd Professional Engineer in 3 ~(;lle~.

..... 9 rears of c..'\':pcrience as President of I:lrgc distributor specializing in lilt types of s:ucty equipment, major cmphasi:t on metal forming and stamping. ....

II rear.!J of experience as President of compan)' im'olved in repair and rewinding of electric m:lOufuclUre. sales, installation and llCrvicing of electrical control panels for jndl\Slry.

motor~ and

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14 rear.!! of experience with General Electric Co. in engineering and industrial sales.

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Complete curriculum vitae and reference.!! all request.

John E. McAllister路 3 Palisandro Drive路 Hot Springs Village, AR 71909-4613 Phone: (501)922-1709 Fax: (501)922-4177

101. l6 \0. l/Summrr 100 I Til Irkmasl.aw!rr

WEST WING ADDITION TO JUSTICE BUILDING DEDICATED The Arkansas Supreme Court Justices and personal staff, the Office of Professional Programs, the Office of Professional Conduct, and the Clerk of the CourtS relocated

have to

Building's

Team members proudly display the winning trophy for the state contest.

permanently the West

Justice Wing

Addition, which was recently completed after two years of

MORE THAN

300 ARKANSAS

construction. The two-story building of

STUDENTS PARTICIPATE IN

limestone and granite has an entrance distinguished by a

2001 MOCK TRIAL

projecting

porrico

and

This addition to the State Capitol complex was described by architect Randy G. Murphy as a structure which "imparts a distinct sense of permanence, strength and security. "

pediment supported by six

COMPETITION

Doric columns. A double line of 19 soffited windows appear on

Arkansas' Mock Trial State winner, Forrest City High School,

,he mcade which is Ranked by high arched windows. This

competed with 44 other S[ate winners in the nationals in Omaha,

addition to the State Capitol complex was described by architect

Nebraska May 10-13.

With great suppOrt from the team's

attorney coach, Chris Morledge, the Bar's staff consultant, Becky Gravely, parents and many others our team put forth a valiant

/1S

a group,

Hundreds of justices, lawyers and friends gathered on a sunny

However, it was Iowa,

afternoon in late April for the dedication ceremony on the Main

New Jersey and Washington that

Entrance lawn. Joining the justices on the patriotically draped

tOok the top three national awards

dais were U.S. District Judge Richard Arnold; Governor Mike

effort. "A

Randy G. Murphy as a structure which "imparts a distinct sense of permanence, strength and security."

Huckabee; Ron Harrison, then-president of the Arkansas Bar

we cannot thank the

,his year. Attorney Chris Morledge,

Association; and other program participants. Among hundreds in

Bar Association and

eoach for ,he Forrcsr. City ÂŤam,

the audience were members of the dedication committee chaired

Foundation enough

said the students appreciated the

Justice Building

opportunity to represent Arkansas

Continued on Page 23

in the national competition. "As

for all oftheir

a group, we cannor thank the Bar

support and

Association

assistance to make a

and

Foundation

enough for all of their support aSSistance

make

memorable trip for the kids," he

memorable trip for the kids. "

said. "Ir was ,he highlighr of our seniors' year and a wonderful experience for the entire team." The program is made possible by

funding from the Arkansas Bar Foundation and the Arkansas IOLTA Foundarion.

Mock Trial Continued on Page 23 Photo by Bill Martin

Thr ,Irklnsls LllI)rr

1I1111.ukhmom

Mock Trial Continued From Page 22

ELECTRICAL ACCIDENTS Paul D. Mixon, PhD., FE.

Forrest City team plots strategy during the Arkansas Finals in Little Rock.

Engineering Consultant P.O. Box 3338 State University, AR 7467 (870) 972-2088 (870) 972-3948 FAX pmixon@navajo.astate.edu

This year 24 teams of junior high and high school students from around the state signed up

panicipare in the Arkansas Bar

Association Youth Mock Trial. Over 75 lawyers and judges volunteered ro work with the teams as coaches, served as judges or helped the teams in ocher ways.

Electrical Accident Investigation and Analysis, Contact Cases and Electrocutions, Electrical Injuries, Property and Equipment Damage, Electrical Fires, Safety Codes (NEC, NESC, UL), Expert Witnessing for Plaintiff and Defense Related Cases.

Anorney Sandra Moll was the chairperson of the 2000 Arkansas Bar Association Youth Education Committee.•

For more itt/ormation. on how to participate in 2002, contact Becky Gravely at bgravely@arkbar.com, 1-800609-5668 or 501-375-4606.

Justice Building Continued From Page 22

It's not like we're the new guys on the block. .. The 200 I legislative session marked the 61st year of coverage of me Arkansas General Assembly by Legislacive Digest - mat's 31 consecutive sessions the

Daily Ugislativ~ Digm

Photo by Bill Martin

by Audrey R. Evan,. Judge Arnold·, keynote address was fuji

has been delivered each morning to our subscribers. Technology? Yeah, we do that too. Since 1991, Digm subscribers have had computerbased access to our service - first through

dial-up modems, then through the Internet, and now using new wireless hand-held devices. And new tools for government affairs professionals are in the works for next session. At the moment, that seems distant but we can hardly wait [0 show you. We'll get back ro you. Meanwhile, thanks again to our many subscribers - we look forward [0 serving you agam.

of witty anecdotes many of which put in perspective

weighty responsibilities of

the judiciary. Governor Huckabee and Ron Harrison spoke with humor and eloquence to

Arkansas legisladve Digest, Inc.· 411 South Victory Street, #20] Little Rock, Arkansas 72201 • (501) 376-284] • FAX (501) 374·9256· e-mail: roger@ardigest.com

the significance of the occasion in the

legal communiry and to the people of Arkansas.•

III. II Ii. ~/Su ••rr 100I Tbp ,Irkusas I.awler 1l

lOlllw I.illl ~I'I'\ St'rl ion

III'plll'(

Who Knows Where It May Take You? Tim Cullen ne of the tangible benefits of

Many of the people in Alaska seemed a bit odd. Friendly, but odd. Maybe four

involvement in your bar association is the opporruniry (0 travel to exocic places that your colleagues choose for their meetings. In my shofr few years of volunteering with

hours of daylight in the wimer has that effect on everyone. Among its many other distinctions,

Alaska is ,he only s"'te to be occupied by a foreign country. In June of 1942, Japan occupied Anu and Kiska, two

the Young Lawyers Section, I've had the opporcuniry [0 travel to such cultural hot spots as Caddo Gap, Arkansas, and Lula, Mississippi, in addition to the annual pilgrimages to Memphis and Hoc however, the

small oudying islands in me Aleutians. This occupation, and Alaska's co furmer attack, vulnerability prompted a massive military buildup in

national Young Lawyers Division oucdid

Alaska ,hat is still evident today. The

themselves. The spring conference was

government expedited public works projects from harbors to highways to railroads. The military carved a "secret" harbor Out of sheer wilderness surrounded by impassable glaciers.

Springs.

This year,

recendy held in Anchorage, Alaska. Alaska puts even Texas to shame when it comes to measuring in vastness. Alaska is home to the tallest mountain in North America (McKinley or Denali, depending on ,he age of your map). The hugach

Mountains

building the twO largest buildings in Alaska a, the time. They still stand as

surrounding

Anchorage make the Colorado Rockies look small. Bald eagles, a rare sight on some Arkansas lakes, are as common as

blue jays. Driving down the highway dall sheep are impossibly perched on sheer precipices juse watching the mocorists. Every summer first me smelr and then the salmon make meir long journey from rhe ocean up the Cook Inlet, and (0 the tiny streams where mey were born. Roadside signs warn tourists nor [Q

rotation and the sun's position mat I failed to learn in junior high gives mOSt of Alaska

abou, twenty hours of daylighr in the summer. The downside is me average four hours of daylight in the winter. Alaska has been in the news lately about

desolate reminders of another age, and the little {Own around them has miraculously survived as a harbor for fishing and recreational boating. Just last year, me rown, called Whittier, was opened to motor vehicle access for me first time by way of a one lane runnel three miles long that cars, trucks, and trains share on an alternating schedule.

While Hot Springs and Memphis can't

sound. Sea otters Aoating on meir backs seem as amused by us tourists as we are by them. The rour guide says a sea otter will

the prospect of drilling for oil in ,he Arctic ational Wildlife Refuge in the

compete with the wild beauty and strangeness of Alaska. I did discover on my trip that for a state of our size and with our limited bar resources, Arkansas young

northeastern-most corner of the state.

lawyers are jus< as involved and dedicated

From

always use ,he same rock to crack shellfish. If he drops ,he rock, he will dive ro the

scientific sampling of a random and broad cross-section of Alaskans (exacdy two cab

borrom and somehow manage among me

drivers), Alaskans are in favor of drilling.

to meir communities as any young lawyers in me country. Why don't you join with your colleagues and help our? Who knows where it will take you. .. â&#x20AC;˘

thousands of rocks on the floor of the bay

Even after the Exxon Valdez tragedy. Alaska's economy is wholly dependent on oil. While no one would give me a Straight answer on the details. it seems mat many Alaskans receive periodic checks or vouchers of some kind from the oil companies, which may have some bearing

harass the Beluga whales spouring in the

pick out his same rock for cracking. Alaska is four time zones and eight hours of Aying time away. As if me time change wasn't enough co shock one's system, arriving in Anchorage at abom 10 to

p.m. local time looks to me like 7 or 8 p.m. As it turns oue, Anchorage's Arctic latitude and some phenomenon of the earth's

my own detailed and

highly

on how they feel about continued oil exploration and development.

Tim Cullen is an attorney at Henry 6Cullen in Littk Rock. H. is Chair ofthe Young Lawyerl Section of the ArkanslU Bar Association.

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THE ARKANSAS SUPREME COURT HISTORICAL SOCIETY, INC. imponam lega] opinions. but they otten lack the historical background to place those decisions in their social, economic, and political context. Historians are familiar with the backdrop of important opinions, but mer sometimes fail to appreciate the consnaincs imposed on the courts by procedural rules and the doctrine of stare decisis. Now an organization exists that bridges the gap between lawyers and historians. The Arkansas Supreme Court Historical Society, Inc., is a nonprofit corporation dedicated to promoting Arkansas' legal heritage. Its initial board of directors includes representatives from the disciplines of both law and histOry: Tom W. Dillard, CuratOr, The Butler Center for Arkansas Studies, Central Arkansas Library System

~ The first Arkansas Supreme Court record book and records from an appeal in 1838.

The Arkansas Supreme Court Historical Society, Inc., is a nonprofit corporation dedicated to promoting Arkansas' legal heritage.

rkansas has a rich and colorful history. Unfortunately, the role played by the courtS in that history has frequently been neglected. The tendency to overlook the courtS when preselHing rhe stare's hiscocy is understandable. Lawyers can analyze

The ,Irkansas I.awl'f

wW",.arkbmom

Dr. John Ferguson, State Historian, Arkansas History Commission John P. Gill, Anorney and former President of the Arkansas Bar Association J.D. Gingerich, Executor Director, Administrative Office of the Courts Mon Gitelman, Distinguished Professor of Law, University of Arkansas School of Law William B. Jones. Jr., Reporter of Decisions, Arkansas Supreme Coun Frances M. Ross, Assistant Professor of History, University of Arkansas at Little Rock Mrs. George Rose Smith, member of Historic AIkansas Museum Commission SCOtt Stafford, Professor of Law, University of Arkansas at Little Rock School of Law Mary F. Worthen, former President of Pulaski Couney Historical Society, Inc.

The board held its organizational meeting in the summer of 2000 and elected SCOtt Stafford as president, Mon Gitelman as vice-president. and J.D. Gingerich as secretary-treasurer. On April 30. 200 I, me Internal Revenue Service approved the Society's application for recognition as a tax exempt entity. The Society's first major project was me preparation of exhibitS for the April 27, 200 I, dedication of the new West Wing of me Justice Building. The Society arranged for the display of the Constitution of 1836, which established the state's first supreme court, along with a portrait of Daniel Ringo, the state's first chief justice, and the coun's original record book from November 1836. The Society also prepated for distribution at the dedication ceremony a brochure which included a brief history of the Arkansas appellate courts, a roster of justices and officers of the Arkansas appellate courtS, and a description of the locations of the AIkansas appellate courts. Future projects include publication of a newsletter with shon biographical sketches of early Arkansas jurists, presentation of educational programs related to Arkansas legal history, preservation of court records, and sponsorship of scholarly articles with a focus on Arkansas legal history. Membership in the Sociery is open to anyone with an interest in Arkansas legal history. Individual annual dues are $25. Law firm annual dues are $500, which entitles the firm to name up to ten individual members. Special rates are available for students, educational institutions, and nonprofit organizations. Dues should be mailed to: Arkansas Supreme Court Historical Society, Inc. 625 Marshal Street Little Rock, Arkansas 7220 I

For more iJifoNuation about the Society

<o"tact Scott Stafford at 501-324-9951 (emaillsstafJord@Ualr.edu) or a"y other member ofthe Society's board ofdirectors.

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ndra il on rry She's a formidable opponent in the courtroom. She's a community leader who has given much time to some very good causes. She has a good marriage, and has been an involved and hands-on mother. She is a wonderful example of a woman who has it all. f these semimems from her longtime friend. businesswoman

for the Eastern District of Arkansas, prosecutors have

Janet Jones, sound like a description of the lead character in a

involved in the details. "You have to be willing to plow through

new television drama, it's only because an imitates life. The new

president of Arkansas Bar Association will surely blush as n she reads this, laugh and say something like, ") paid her to say that. Sandra Cherry is the quintessentially genteel Southern lady perfecdy groomed and demure. Think steel magnolia. We talked for hours over lunch at a trendy Little Rock restaurant and at the

U.S. Attorney's Office where she works, rnosrly about the Bar Association she loves and to which she has given so much of her

boxes and boxes of (evidence)

be very

find what you need," Casey says.

" Agents like to work with her because they know their work will come ro fruition if Sandra's handling it. (Sandra's) very thorough. She doesn't ler go." Deceptively gentle in cross examining people, most (witnesses) don'r realize they've been had unril it's aJl over. She did a closing argumenr once mat became a legend in medicaid fraud. The agenrs who worked on the case commissioned a

"I'm devoted to the Associarion," she says with a soft

painring to commemorare ir. ''I'm not F. Lee Bailey," Cherry says. "but I've been fairly successful."

Southern drawl. "Ie has enriched my life." And whae a full life she

In recenr years, she has served as Coordinator of the Federal

time.

lives.

Healrh Care Fraud Task Force for the Eastern and Wesrern Districts

UJ nominated her for and she won a national ",uardfor her lQork (proseCllting) "ealt" care fraud cases. " - PaulA Casey

of Arkansas. The Task Force is made up of differenr agencies such as the Federal Bureau of Investigarion. the Inrernal Revenue Service, the HHS Inspector General and the Depanmenr of

Winner of the U.S. Department of Justice's 1999 Direcrors

Defense who work togerher on cases. Cherry says "We've had some

Award for superior performance by an Assisr31H United States

success in Medicare fraud cases that's satisfying because with so

Anomey, Cherry has handled cases that have become models for

much fraud occurring in mese federal health care programs you feel

prosecutions across the country. For example, though federal jurisdiction is limited over nursing home neglect and abuse, she

like you've saved the raxpayers' money and sent a strong deterrenr message."

developed a eheory of federal prosecucion based upon fraud. To be

A former junior high history reacher, Cherry revealed, "There's

successful at this, according to Paula Casey. former U.S. Anomer

a lor about trying a jury trial that's like reaching. You're rrying ro

The ,Irkanla! I,alfjrr

Ifll'w.arkhar,l'nm

The Cherry Family with COllernor Mike Huckabu and Chair ofthe Board ofCowrnoN, David Vandngriff

The trail of her well-turned heel leads all over the Association. She served as secretary-treasurer, is a tenured member of the House of Delegates, co-chaired the Committee on Opportunities for Women and Minorities in the Legal Profession, and sat on at least four other committees.

"I'm not F. Lee Bailey," Cherry says, "but I've been fairly successful." layout your faces to jurors so they'll remember them and agree with your views

the

- -... job she did for me." Witherspoon says. Cherry won me Arkansas Bar Association's Golden Gavel Award

outcome.

for Exemplary Service to the Legal

Schoolteachers and rriallavvyers have a Jot of 'ham' in them. Trial practice

Profession in 1992. In add.irion [0 her State Bar work, she is a fellow

is stressful at times, but when you are successful it is very rewarding."

of the American and Arkansas Bar Foundations, past president of the

Sbe truly loves to work to improve tbe overall practice of law a"d tbe Association itself

Pulaski County Bar Association and former president of the UALR School of Law Alumni Association.

These are words from the first

"I think many of us are active in the

woman president of the Arkansas Bar Association, Carolyn

Bar because it takes you inca another

Witherspoon, whom Cherry credits

another group of friends you

for helping to make her presidency

develop that you would nor meet in "I your work," Cherry says.

area

involvement,

possible. "There was a time when Carolyn and I were rather unique in the Bar,"

suppose some people do volunreer work as an interest much like

Cherry says.

others pursue a hobby."

"Often we were most

of the women in the room; that is, twO

of the three. For many women,

there is still a glass ceiling to be overcome, but iÂŁ's been made easier because of the efforts of women who

She did a closing argument once that became a legend among

U.S. Anorney's Office) donated Christmas baskets to the elderly and Sandra decided that it was roo

precede you. Since I left law school I have never held a position that a woman has held before me and you carry a burden being first. Because of Carolyn, it is different for me becoming Bar President."

Few take their hobby as seriously as Cherry takes her community work. "One year (the

medicaid fraud prosecutions.

Witherspoon says she hopes Cherry's term as the second woman president of the Arkansas Bar wi.!l inspire more women and more governmenr attorneys ro do committee work and accept leadership roles. Already, Cherry is making her mark in that regard. "I was

sad to give anybody a basket without a ham or turkey in it, so she bought a ham or rurkey for every basket." "I think lawyers are

community leaders and they have an obligation to serve the community." Cherry says. "Professionalism is about serving your community in whatever way you can. Not just in your Bar but in your profession." She's not jusr whistling Dixie.

She lives her philosophy of

very impressed with Sandra's efforts to stan a Government Practice

professionalism and service. She is Immediate Past Chair of the

Section," Paula Casey said. "That was largely Sandra's doing, and

Arkansas Community Foundation, a founder and director on the

my husband joined the Arkansas Bar, in part, because of it." In

Board of the Women's Foundation of Arkansas, director on the

1991 the Women Law Students Association at the University of Arkansas presented its Gayle Pettus Pontz Award ro her for outstanding excellence and achievemenr in the legal profession.

Board of the Governor's Mansion Association, and past chair of the Gains House Board of Directors. Witherspoon says compassion and balance will distinguish Cherry's term as president.

The trail of her well-turned heel leads aU over the Association.

Her professional life, home life and community work seem to

She served as secretary-treasurer, is a tenured member of the House

flow together seamlessly, one complimenting the other. One way

of Delegates, co-chaired the Committee on Opportunities for Women and Minorities in the Legal Profession, and sat on at least

in which home and career come toget.her is she and her husband of 24 years, John S. "Jack" Cherry, share the same profession. "Jack

four other committees. "Chairing the executive council was a huge

is definitely the best lawyer in the family," Cherry smiles. "In lors

The Jlrkm3sl,311,!er

IIWII'.3rkbar.rom

of ways, he's encouraged me and I've learned a lot from him about everything from jury selection to trial strategy. It's wonderful for twO lawyers to be married ro each other because you understand !ate night trial preparation. You understand the pressure of the trial so you can be understanding when the other person is stressed...

Each of these lawyers grew up as an only child, and they have one child, a beloved daughter named Jane. She is a sophomore at Wake Forest University and she recently set her sights on going to law school. After the Cherrys posed for photographs with their pugs, Muffie and Spuds. at the family's home in Little Rock, Jack Cherry rook time ro talk abom going ro his first Bar meeting with his longtime friend Gordon Rather in the 60's. Reminiscing, he fondly recalled another time in the 70's when he asked the lawyer who became his wife our on a date to one of those Bar Association Annual Meeting parties at the Arlington Hotel. Lately, he says, "Sandra's been doing (Association work) for both of us." Asked what role he expects to play in the coming year, he chuckled, "My role will be to stay our of the way...She's lucky to have me around." So, what does the power couple do ro relax? "We spend weekends at the lake. We've traveled a lot with the Bar and we like that." According to Rather. former president of the American Board of Trial Advocates, the Cherrys are great ambassadors. "I pur a premIUm on representing Arkansas and the Arkansas Bar well when you're in a leadership position like this," Rather says. "1 think Sandra and Jack will do a great job. Jack Cherry is one of the most genuinely clever people I know. Hayden and I spent a good amount of time with Sandra and Jack at an ABOTA convention in Florence, Italy and I can tell you they're just as gracious when they are away from Arkansas as they are here at home." They are also known to entertain at their home to benefit the community organizations they suppOrt. Seamless, right?

fol.l6 No. MSommor 2001

Tho ,lrkaosas I,l"yer

"Her professional life, home life and community work seem to flow together seamlessly, one complimenting the other. One way in which home and career come together is she and her husband of 24 years, John S. "Jack" Cherry, share the same profession.

The Arkanlll LaM}er

MMlwkhlr.cnm

"Professionalism is about serving your community in whatever way you can. Not just in your Bar but in your profession."

Free report shows how to get clients Calif.-Why do some lawyers get rich while others struggle to pay their bills? "That's simple," says California anomey David M. Ward. "Successful lawyers know how to market their services." Once a struggling sale practitioner, Ward credits his turnaround to a referral marketing system he developed six years ago. "I went from dead broke and

drowning in debt to earning S300,000 a year, practically overnight," he says. Most lawyers depend on referrals, he notes, but not one in 100 uses a referral system. "Without a system, refemls are unpredictable, and so is your income," he says. Ward has taught his refeml system to more than 2,500 lawyers worldwide, and has wrinen a new repon, "How to

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Accountant/Economic Analysis The well-balanced life Cherry has today follows a couple of early transitions

• Business Valuations • Personal Injury Damage Analysis • Divorce (Property & Child Support Issues)

which she made with patience and perseverence. She was a senior in high school just when schools were closed following rhe Ceneral High Crisis. "One

friend went [0 St. Louis and one went to Dallas. My parents couldn't believe what was happening so I didn't do anything ar first," she recalls. «I took a correspondence course and attended high school football games which were played

Court-Appointed. Regular Court Appearances Richard L. Schwartz Certified Public Accountant Certified Business Appraiser Certified Fraud Examiner

11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445 Phone: (501) 221-9900 Fax: (501) 221-9292

email: schwartz@busvalu.com

even though there were no classes. My high school group of friends, known as the lose Class of 59, became extremely

SHUFFIELD APPRAISAL SERVICES

close and many of us are still very close today. Finally, I wene co Hendrix College

REAL

as a freshman in the Spring semester." She

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ESTATE APPRAISALS FOR ESTATES, GIFTS AND TRUSTS. COMMERCIAL

excelled, as did II ocher seniors from Ceneral and Hall High.

Wichin chree

years. she had transferred to the University of Arkansas ar Fayerreville and graduared with a degree in history. Unable (0 find work, she decided against law school,

CONTACT - ELVIN SHUFFIELD

11518 Fairview Lirrle Rock, AR 72212 501-225-5371 Email: appraise@arkansas.ner

returned to college and got a teaching certificate. She enjoyed reaching junior high history and civics and then women

began going ro law school in grearer numbers. Recognizing an opporruniry ro reclaim her dream deferred. she emered law school ten years after finishing her undergraduare degree.

"Jr was suddenly a feeling rhar this really is my place, char rh.is is whar I should be doing," Cherry says of her law school experience.

The sparkle in her

eyes as she talks abour whar rhe Arkansas Bar Association is and what it can become may be a clue rhar rhis is deja vu.•

rll. II II. l/SI••,r llO I.

TIe ArkllSi! Ll~)er

2001 AWARD RECIPIENTS The following members received awards at the 99th Annual Meeting ofthe Arkansas Bar Association.

Judge W. H. "SONNY" DILLAHUNfY Outstanding Lawyer

The Outstanding lAwyer Award is givm in recognition oftxulknu in the practice oflaw and outstanding

contributions to the profession. These are a few of the phrases nominators used used to describe The Honorable W H. "Sonny" Dillahunty, Chancellor in the 6th Division Chancery Court: He IS compcrcnt, honest. extremely hard-working and relentless in always doing what is righti He is a trial lawyer par excellence; He practiced law to provide his diencs with the very best legal represenracion he could give mem...he always put his clients' inreresrs first, ahead of his own. Sonny Dil1ahumy graduated from the University of Arkansas in 1950 and was a solo practitioner in West Memphis before becoming City Attorney in 1957. a position to which he was reelected five times. In 1968 he was appointed United States Attorney for the Eastern District of Arkansas, and he served for fourteen years under the leadership of four different presidential administrations. He was appointed a special justice on the Supreme Court of Arkansas. He was the originatOr and founder of the William OvertOn Inn of Coun in Pulaski County. He is a member of ,he Pulaski County, Arkansas and American Bar Associacions. He and his wife. Emma, have been married for more than SO years and ,hey have a daugh,er, Sharon Kaye Dillahunty.

Tie ,lrkllSl! Lallfer

IIl1w.arkblf.f11

JIM LJULIAN

MICHAEL H.CRAWFORD

Outstanding Lawyer-Citizen Tht Outstanding Lowytr-Citiun Award is givm in recognition ofoutstanding participation in, and act/lent ptrformanct oj civic rtspomibilitits andfor

c.E. Ransick Award of ExceUence

demonstraring high standards ofproftssional competenct and conduct. Jim Julian's contributions to the bar and the community as a whole have been numerous. However, this year's Ourstanding Lawyer-Citizen was given in recognition of his dedication and tireless effortS as Chai, of ,he Amendment 3 Campaign Committee, which played a key role in the successful passage of the new judicial article of the Arkansas Constitution. Julian demonscrated leadership, commitment and skill in working with others on the Amendment 3 campaign. Aside from his work in the Amendment 3 campaign, julian has been Chair of the Arkansas Bar Association's Legislation Committee for the past five years. He is also a Fellow of the Arkansas Bar Foundation. Active at the national level of the Bar Association, Julian is a member of the American Bar Association's Lirigacion Section, the Environmenr, Energy and Resources Section, the Defense Research Institute and the International Association of Defense Counsel's Toxic Ton Litigacion Comminee. He maintains membership in the Pulaski County Bar Association and the Arkansas Association of Defense Counsel. julian has served on the North Litde Rock YMCA Board of Direcrors and was Chair for three years. He has also been a direcror on the Boards of the YMCA and remains

This award is givm in recognition of atraordinary urviu to tht legal proftssion. The C.E. Ransick Award is given for outstanding service to the Associacion in a manner that brings credit not only to the Association, but also to the profession. Mike Crawford is, and has been for his entire career, the epitome of such a lawyer. As stated by one of his nominarors, Crawford has consistently "put service above self." As President of the Young Lawyers' Section, member of the House of Delegates. the Executive Council, and numerous Association committees. he has provided leadership and guidance in evety aspect of Association work from CLE programming, ro membership. to Annual Meeting planning. His assistance and creativity with the children's program at ,he Annual Mee[ing has helped make this an important annual event for the lawyer's entire family once again. In recognition of his dedicated service, he has received the Golden Gavel and the Frank Elcan Awards as well as the Presidential Award of Excellence. Crawford is bo,h a Fellow and a Sustaining Fellow of ,he Arkansas Bar Foundation and has been very active in the Arkansas Trial Lawyers' Association. Crawford also volunteers his time to the work of [he Jaycees, which recognized him as one of the nacion's outstanding young men; to the YMCA Indian Princess/Guide program; and the Boy Scours of America. He served as a leader during ,he Boy Scou,s' XlX,h World jamboree in Santiago, Chile.

2001 AWARD RECIPIENTS The following members received awards at the 99th Annual Meeting ofthe Arkansas Bar Association.

JUDGE ANDREE ROAF Special Presiden..' Award judge Andree Roaf has always been willing and able to serve the legal profession. During the bar year 2000-0 I, judge Roars leadership was especially imporranc in the passage of Amendment 80 and in the promotion of diversity within the legal profession. She served on both the Amendment 3 campaign committee and the Supreme Court's Amendmem 3 Implementation Committee, and is a member of the new Arkansas Bar Commission on Diversity. In her capacity as President of the W. Harold Flower's Law Society, judge Roaf assisted the Association in the production of the Civil Righrs program at the 2001 Mid Year meeting.

Aucr HOLCOMB Presidential Award of Exeellence AJice Holcomb has provided outstanding service ro the Arkansas Bar Association and its members as our lobbyist for the past three: years. Her leadership and coordination of the Association's legislative program have: included more than direct lobbying effortS at the State Capitol. Holcomb has served as a Delegate to the Association's House of Delegares, has been a liaison member of the Board of Governors, and has served as both a member and ex-officio member of the Jurisprudence and Law Reform Committee:. Additionally, she played a leading role in the judicial Article eampaign (Amendment 80) in 1999-2000.

Jim L. Julian Continued From Page 34 on the Board of the

orth Little Rock Boys'

and Girls' Club. Julian was recendy selected for inclusion in the civil litigation section of the 200 I edition of'The Best Lawyers in America." He is a partner in the Chisenhall, escrud & Julian law firm, author of the Arkansas section of the State OSHA Special Repan published by Government Institutes and a frequent lecturer. He and his wife of 20 years, Patricia, have a daughter named Kathryn.

That folks art smiling btcaust they tbrtW a party tlf tht 2001 Arka11JnJ Bar Association Annual Muting and EVERYBODY sbowtd lip! Thursday lUluh: Miteht/l, Williams St/ig. Gam and Woodyard, P.LLCand McMath. lIthik. Drummond and Harrison. P.A. Thursday lIight rl!crptiOIl: Friday. Eldrtdgt dClt"k Friday night rt!ceptio", UALR William H. BoUltn School of Low and tbt Univmity of Arkamas Sllwo' oflAw

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State Courts on the Road to Change by Pat Jones, Editor

mendment 80 of the Arkansas Constitution is steering me state courts beyond me status quo in important ways. As ofJuly 1,2001, it made judicial elections nonpartisan and made all state judges circuit judges with authority in cases of law and equity. Supreme Coun Administrative Order 14 set a course for judicial circuits to follow. It required that each of the state's 24 circuirs formulate an administrative plan for redistriburing its caseloads and submit it to the Court for approval. The Order allows several months of preparation before full implementation of approved plans on January 1,2002. In most circuits, the signs are that 'the devil's in the details.' In its per curiam order issued June 28, 200 I, the Supreme Court of Arkansas stated, Among the 28 judicial circuits. mere are single-judge circuirs; multi-judge, one coumy, one courthouse circuits; multi-judge, one county, twO courthouse circuits; multi-judge, twO county circuits; and multi-judge, multi-county. muhi-counhouse circuits. It goes withom saying that there are critical staffing issues attendant to any shifting of cases from one coun to another. Even if all the theoretical questions were answered, we could not immediately implement the necessary changes because of time and financial constraints. We must allow time for incumbent and newly elected circuir judges to participate in judicial education programs to train them in areas of the law with which they are nor as familiar since all such judges must become available to try any eype of case... Thus, we believe that a realistic target date for completing implementation

of the new unified coun system should be July I, 2003. On that date, we expect aU circuit judges to be available to try all "justiciable matters." SHIfTING

GEARS

The Judicial Education Committee of the Arkansas Judicial Council, chaired by Judge John Plegge (6th Judicial Circuit) is meeting this summer ro develop a program to help judges bridge the gap between the type of caseload they heard prior to Amendment 80 and what is becoming a more varied caseload in the future. HaIf of the 110 trial judges are already 'combination judges.' "For some judges, irs' going ro be easy and for ochers it won't be as easy to become a judge who wears multiple hats," said Supreme Coun Justice Robert Brown. "The training will have to be available." Kay Palmer, Judicial Education Coordinator, says a rr3111111g session appropriately called "Changing Hats" is set for OClOber 16 and 17 in Fort Smith. A comprehensive training program on juvenile law is also being planned, according 10 J.D. Gingrich, with others on chancery and circuit Court issues to follow. "We'll have an additional three days of basic training for trial judges added on to the Judicial College," Gingrich says. The administrative and managemenr issues will be dealt with by

January 1 with cross-disciplinary training conducted on a regional basis.

PIT Srors In the June 28th per curiam order (complete text available online at cou nS.state.ar. usl opi n ionsl opinions. html), The Supreme Coun provided administrative plans for three judicial circuits which were unable to reach agreement on a single plan and appoimed three judges to administer them. They are: 6th Judicial Circuit Judge David Bogard, administrative judge 10th Judicial Circuit Judge Don Glover, administrative judge II th Judicial Circuit Judge Leon Jamison, administrative judge Four judicial circuits were directed to resubmit their plans by August 15, 200 1 after revisiting problems with the distribution of their equity caseload: 1st Judicial Circuit, 15th Judicial Circuit, 19th W Judicial Circuit and nnd Judicial CirCUit. The 13th Judicial Circuit was directed (0 resubmit a plan which insures random selection of judges in civil cases. Approved with reservations about caseload division were plans submitted by these judicial circuits: 2nd, 3rd, 4th, 5th, 7th, 12th, 14th, 16th, 17th, 18th E and 20th. Plans from the 21 st and 23rd Circuits were approved on the condition that issues around their allocation of cases are clarified by August 15, 200 I, and from the 8th N Judicial Circuit due to unique conflict of IOterest ISSUes. Only two plans received the Supreme Court's unequivocal approval: 8th Sand 9th W Judicial ircuits. In the coming momhs, circuits will be tuning up the engine, checking the tires and making sure the gas rank is full. By January 1, 2002, Arkansas' new court system will be off and running,_

III III III III III III III III III III III III III III III III III III III III III III III III III III III III

Arkansas Bar Association CLE Calendar CoMMIJfER C o M P I J f E R l )

October 12. 2001 ew HorilOns Sherwood

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For more information, contact Virginia Hardgrave, Arkansas Bar Association, 800路609-5668, 501-375-3957, yhardgraye@arkbar.com

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Judicial Advisory Opinions The Judicial Advisory Opinions are written and provided by the Judicial Discipline and

DislIbi/ity Commission_ Honorable Rice Vanausdall Honorable Howard Templeton Honorable Vic Fleming April 5, 2001 RE: Advisory Opinion # 2001-02 Dear Judges Vanausdall, Templeron and Fleming: You have asked about the propriety of being a "Judicial Fellow" of Association of Trial Lawyers of America. ATLA's letter ro you, which you provided us, asks you to "accept recognition by ATLA as a Judicial Fellow." ATLA offers you a complimenrary subscription to Trial magazine and complimenrary registration for ATLA conventions. This Committee has previously dealt with this issue in Advisory Opinions 99-04 and 99-07. We conclude that a full-time judge could not be a member of ATLA or any other organization that outwardly favors one side or consisrently rakes one side in legal issues. To do so would violare the prohibition against the "appearance of impropriety" contained in Canon 2 and might raise doubt on the judge's ability to decide impartiality as required by Canon 4. The prohibition applies regardless of whemer membership dues are required. ATLA's letter recognizes our concerns. Its closing paragraph states that "several supreme courts have ruled it unethical for judges to join organizations that represent a single side in legal disputes." However, we see no difference in being a member of ATLA, a "Judicial Fellow of ATLA", or any other appellation that ATLA may conceive. Such an ourward association does nOt encourage the integrity and independence of the judiciary. We emphasize again tha, any judge may receive free publications from ATLA, may accept complimentary registration at ATLA conventions, and may speak at ATLA programs. But public and ongoing identification as a member, fellow, or supporter, no matter what phrase is used, is inappropriate.

on being named Chairperson of the Board of Governors of the Arkansas Bar Association

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Lawyel' IIisdplinal'~' ,ll'tions The Lawyer Disciplinary Actions are written and provided by the Supreme Court ofArkansas' Committee on Professional Conduct.

NOTICE OF ORDER OF DISBARMENT TIMOTHY WAYNE TILLMAN Sherwood April 19,2001

NOTICE OF SUSPENSION OF ATTORNEY'S PRIVILEGE TO PRACTICE LAW

Attorney Timothy Wayne Tillman, formerly of Sherwood, Pulaski County. Arkansas, with Arkansas Bar ID #99052 has been barred from engaging in the practice of law in this State for violation of the Arkansas Model Rules of Professional Conduce. On the recommendation of the Arkansas Supreme Court Committee on Professional Conduct, me Arkansas Supreme Coun entered an Order of Disbarment of Timothy Wayne Tillmann on April 19,2001. The Committee's Petition for an Order of Disbarment was based upon violation of Model Rules 8.4(b), 8.4(c) and 8.4(d) of the Arkansas Model Rules of Professional Conduct. The Petition and anached exhibits on file with the Clerk of the Arkansas Supreme Court, reflect that during April 2001, the Circuit Court of Pulaski County, Arkansas, entered a judgment of disbarment against Mr. Tillman, based upon his felony convictions of three countS of Knowingly and Wilfully Exposing Another to HIV, a violation of Ark. Code Ann. 5-14-123, a Class A felony; seven counts of Terroristic Threatening in the First Degree, a violation of Ark. Code Ann. 5-13301, a Class D felony; one count of Absconding, a violation of Ark. Code Ann. 554-131, a Class D felony, one count of Theft of Property, a violation of Ark. Code Ann. 536-103, a Class D felony; and one count of Failure to Appear, a violation of Ark. Code Ann. 5-54-120, a Class C felony. If you have any questions in this regard or you have information evincing the anorney's continued practice contrary (Q the status of his license, please contact this office.

JAMES ODELL CLAWSON, JR. Little Rock April 16, 200 I Attorney James Odell Clawson, an attorney practicing law primarily in Little Rock, Pulaski County, Arkansas, Bar ID #90219, has been suspended from the practice of law within the jurisdiction of this State pursuant to Sections 7E(3)(a) and (b), and 8B(I)(a) and (b) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. The Comminee on Professional Conduct has directed that disbarment action will be instituted pursuant to the mandate of Section 68(1), Procedures, based upon Mr. Clawson's conviction of the criminal felony offenses of Unering a Forged Instrument, Two (2) counts. Please be advised that a suspended anorney shall not be reinstated (Q the practice of law in this State until the Arkansas Supreme Court

has received an affirmative vote by a majority of the Comminee. If and at such time as the Committee may reinstate the attorney, you will be provided notice of the reinstatement and the effective date thereof. 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. !<ELL! S. CASHION North Little Rock March 8, 200 I Attorney Kelli S. Cashion, an attorney practicing primarily in North Little Rock, Arkansas, Bar ID #96006, has been suspended from the practice of law within the jurisdiction of this State pursuant to Sections 7E(3)(c) and 8B(I)(c) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (Procedures). The Committee on Professional Conduct has directed that Ms. Cashion be placed on interim suspension following it's review of a Verified Petition presented by Stark Ligon, Executive Director of the Office of Professional Conduct. The verified Petition

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til\\}rI' IIisl'ipliDill'~' demonstrated thar Ms. Cashion has engaged in or is engaging in misconduct involving (1) misappropriation of funds or property; and (2) a substantial threat of serious harm to the public or her diems. Please be advised mat a suspended anorney shaJI not be reinstated to the practice of law in this Srare until the Arkansas Supreme Courr has received an affirmative vote by a majoriey of the Committee. If, and at such time as the Commirree may reinstate the arrorney, you will be provided notice of me reinstatement and the effective date thereof. 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.

KEN ETH GERALD BRECKE RIDGE Hot Springs April 2, 2001 The formaJ complaint of misconduct arose from the complaint of Kim Robinson. Ms. Robinson employed Mr. Breckenridge, an anorney practicing law primarily in Hor Springs, Arkansas, to represent her and her husband in a maHer rdaring to the purchase and installation of a mobile home. In January 1999, Ms. Robinson met with Mr. Breckenridge and discussed the maner. M r. Breckenridge advised Ms. Robinson that she had a good case and [hat a lawsuit for breach of contract needed to be filed. Mr. Breckenridge stared that his fee would be $3,500.00. Ms. Robinson paid $200 and agreed to pay the remainder over a period of orne. Ms. Robinson made paymenr of $900.00 on February 20. 1999. Mr. Breckenridge appeared ar Ms. Robinson's home on March 12, 1999 and Ms. Robinson paid the remaining 52400.00 baJance. During discussion with Mr. Breckenridge on March 12. 1999, Ms. Robinson asked when rhe lawsuir would be filed. Mr. Breckenridge assured Ms. Robinson that he believed the lawsuit had aJready been filed bur mat he would have to check with his secretary. As Ms. Robinson had nor received any documentation regarding the lawsuit by July 21, 1999. she went to me Garland County Courrhouse to see when the case had been filed. Ms. Robinson discovered that rhere was no record of a case having been filed on her

.\d ions

and her husband's behaJf. Ms. Robinson went ro Mr. Breckenridge's office and was assured by him that the lawsuit had indeed been filed not in Garland County but in Faulkner County. Ms. Robinson left Mr. Breckenridge's office and drove to Conway, Arkansas to obtain a copy of the lawsuir. After arriving at the Faulkner Couney Courthouse, Ms. Robinson discovered thar there was no record of a lawsuit filed on her behalf by Mr. Breckenridge. Ms. Robinson called Mr. Breckenridge from Conway and spoke to him over the telephone. During the telephone conversation, Mr. Breckenridge stared thar the lawsuir had been mailed to the clerk in Conway but it must not have made it there yet. Ms. Robinson Stated thar when she rerurned to Mr. Breckenridge's office in Hot Springs, she expected a refund of the fees paid or a copy of the lawsuit. Ms. Robinson arrived at Mr. Breckenridge's office and was provided with a lener from Mr. Breckenridge. In the lerter, Mr. Breckenridge stared that he had been working on the case and that the file was ar his Mount Ida, Arkansas, office. Mr. Breckenridge further scated thar he would bring a copy of everything to her ar her home the next day by 8:15 a.m. On July 22, 1999, Mr. Breckenridge failed ro appear at Ms. Robinson's home at rhe designated time. Ms. Robinson went ro Mr. Breckenridge's office and was informed that he was not in the office. Ms. Robinson returned to the office at 9:30 a.m. and Mr. Breckenridge was present. Mr. Breckenridge advised Mr. Robinson that he had a meeting with representatives from the mobile home company at 2 p.m. thar afternoon. Ms. Robinson was informed by Mr. Breckenridge thar she must have misunderstood him earlier as he did not tell her that a lawsui[ had actually been filed and that he did not mink she would actually drive there. A meeting was held on July 22, 1999 with agents of the mobile home company. Ms. Robinson and her husband planned to move to California. Prior to [he move, Ms. Robinson went to Mr. Breckenridge's office to copy items for her files. Ms. Robinson found in the file an originaJ completed Arkansas Manufactured Housing Commision complaim form rhat she had provided Mr. Breckenridge some rime earlier. Ms. Robinson took me form and called the Commission.

According CO Ms. Robinson, the Commission had nOt received the complaim form. Ms. Robinson mailed the form (O the commission. In her next conversation with Mr. Breckenridge she asked him why the complainr form had nor been mailed ro the Commission. Mr. Breckenridge responded that ir had been mailed and mat he personaJly dropped off a copy of the complainr to the Commission office. Ms. Robinson terminated Mr. Breckenridge's represenration of her and her husband in maner on August 6, 1999. and demanded a refund of the fees pajd and the rerum of aU documents and items in his possessIOn. Following relocation to California, Ms. Robinson employed a CaJjfornia arrorney ro assisc wim the problems she and her husband were having with Mr. Breckenridge. Mr. Breckenridge assured me California anorney mat he would refund $1500 of the fees. No response from Mr. Breckenridge was received by the Robinsons or the CaJifornia attorney assisring the Robinsons. Due to the inaction of Mr. Breckenridge, the Robinsons have been unable to sell me mobile home in Arkansas due to irs current condition. Mr. Breckenridge was served wim the formaJ complaint, pursuanr to Section 5E, Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Anorneys at Law (Procedures), on ovember 21, 2000. Mr. Breckenridge failed to timely respond to me formal complaint. His failure to respond timely to the formal complainr constirures admission of me faCtuaJ aJlegations contained therein pursuanr to Section 51(4) of rhe Procedures. Upon consideration of the formal complaint and the Arkansas Model Rules of Professional Conduct, the Comminee on ProfessionaJ Conduct finds: I. That Mr. Breckenridge's conduct violated Model Rule 1.3 when he failed to complete negotiations with the mobile home company for repair ro begin on his clients' home, and when he failed to file suit against the mobile home company as he stated would be done. Model Rule 1.3 requires mat a lawyer act with reasonable diligence and promptness in representing a client. 2. Thar M r. Breckenridge's conduct violated Model Rule 1.4(a) when he fuiled to keep his client, Kim Robinson, informed of the status

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La\\}PI' Disriplillill} .\l't ions of her legal marter despite her requests and when he provided his client with false information as to the status of her matter. Model Rule 1.4(a) requires that a lawyet keep a c1iem informed about the status of a matter and promptly comply with reasonable requests for information. 3. That Mr. Breckenridge's conduct violated Model Rule 1.I6(d) when he failed to refund to his clients at least $1500 in unearned advanced payment of fees. Model Rule 1.16(d) requires that upon termination of representation, a lawyer take steps co the extent reasonably practicable to protect the client's interests, such as refunding any advanced paymenr of fee mat has not been earned. 4. That Mr. Breckenridge's conducr violated Model Rule 8.4(c) when he falsely advised Mr. Robinson and a represenrative on her behalf that he would refund the unearned advanced fee paid to her and when he falsely advised Ms. Robinson that he had filed a lawsuit on her behalf. Model Rule 8.4(c) requires that a lawyer not engage in conduct involving dishonesty, fraud. deceit or misrepresentation. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conducr (hat KENNETH GERALD BRECKENRJDGE. Arkansas Bar ID o. 84015, be. and hereby is. SUSPENDED for THREE (3) MONTHS for his conduct in (his matter. The suspension shall become effective as of the date of the filing of this Order with the Clerk of the Arkansas Supreme Court. In addition, for his failure to timely respond to the formal complainr, Mr. Breckenridge is fined the sum of $500.00. pursuant to Section 51(1) and 8A(2) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Artorneys at Law. Said fine to be paid within thirty (30) days of the filing of this Order with the Arkansas Supreme Court Cletk. MICHAEL EVEREn" TODD Paragould April 6, 200 1 MI HAEL EVEREIT TODD. Arkansas Bar 10 #78153, an attorney previously practicing law primarily in Paragould, Greene

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County, Arkansas, was convicted in rhe United States District Court for the Eastern District of Arkansas in a case numbered 4:99CR00061-04 GH. of the offenses of Aiding and Abetting in Mail Fraud, a Class D Felony, a violation of 18 U.s.c. 1341 and 2. and Aiding and Abetting in Money Laundering, a Class D Felony, a violation of 18 U.S.c. 1957 and 2. On March 27. 2001. a Judgmenr and Commitment Order was filed. of record in the aforesaid criminal matter, a me marked copy of which is appended hereto. Pursuant to the mandate of Section 6B(I) of the Procedures of the Arkansas Supreme Court Regulating Professional conduct of Attorneys at Law (Procedures), a disbarmenr action shall be initiated against Mr. Todd as a result of his felony conviction. Additionally, an interim suspension of Mr. Todd's privilege to practice law under the authority of this Arkansas law license shall be imposed pursuant to Secrions 7E(3)(a) and (b), and 8B(I)(a) and (b) of the Procedures. It IS therefore ORDERED that MICHAEL EVEREIT TODD be. and he hereby is, suspended for the practice of law within this jurisdiction immediately upon the filing of this Order wirh the Clerk of the Arkansas Supreme Court.

Carl Frederick Moyer Green Forest February 28, 2001 The formal charges of misconduct upon which this Order is based arose from the complainr of Mary Harrell. Carl Frederick Moyer, an artorney primarily practicing in Green Forest, Carroll County, Arkansas, assisted. Ms. Harrell in the preparation of a bankruptcy petition. On Seprember 9. 1999. Ms. Harrell sought legal counsel from Mr. Moyer regarding the filing of a Chapter 7 bankruptcy petition. On that date, Ms. Harrell paid Mr. Moyer $575.00 by check for his full rerainer and all the filing fees associated with the filing of lhe bankruptcy petition. However, the check was endorsed by Mr. Moyer and made payable to Sabrina Hall, Mr. Moyer's assistant. Ms. Hall (hen cashed Ms. Harrell's check. Subsequently, Ms. Harrell completed the forms provided by Mr. Moyer and returned

them

him. Subsequently, no bankruptcy

~cicion

was ever flIed by Mr. Moyer in Ms. Harrell's behalf despite numerous telephone calls co his office in which he and his Staff advised that everything was okay. Me. Moyer accepted service of the complaint by certified mail on October 30, 2000. He failed to file any response. Upon consideration of the formal complaint, response herein, and the Arkansas Model Rules of Professional Conducr. the Commirt~ on Professional Conduct finds: I. That Mr. Moyer's conduct violated Rule 1.3 of the Model Rules of when he agreed to accept a $575.00 retainer and information from Ms. Harrell in September, 1999 to file her Chapter 7 Bankruptcy Petition and then failed to file her petition as of the date of the complaint. Augusr I, 2000. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. 2. That Mr. Moyer's conduct violated Rule 1.I5(a)(l) of rhe Model Rules when he accepted a $575.00 retainer from Ms. Harrdl which represented all the arrorney's fees and associated filing fees of the Chapter 7 bankruptcy petition. He then endorsed the check (0 Sabrina Hall, his assistant, who personally cashed it, instead of placing the client funds and me filing fees, in his client truS( account. Model Rule 1.15(a)(l) requires, in pertinent part, that all lawyers hold property, with fUnds ofa client deposited and maintained in one or more identifiable trust accounts in the state where the lawyer's office is situated. 3. That Mr. Moyer's conduct violated Rule 1.16(d) of rhe Model Rules when he failed to return to Ms. Harrell any of Ms. Harrell's $575.00 retainer which included any unearned porcion of the arrorney's f~ or any filing fees when he failed to file her Chapter 7 bankruptcy petirion. Model Rule 1.16(d) requires that upon termination of representation, an attorney shall take sreps to the extenr reasonably practicable to protect me client's interests. such as giving reasonable notice to the client, allowing time for employmem of other counsel, surrendering papers and property (0 which the client is entitled and refunding any advanced payment of fee that has not been earned. WHEREFORE, it is the decision and

La\\}et' order of the Arkansas Supreme Court Commirree on Professional Conduct that CARL FREDERICK MOYER, Arkansas Bar #90067, be and hereby is SUSPENDED FOR THREE MONTHS for his conducr in this matter. This suspension shall be effective as of the date of the fLIing of this Order with the Clerk of the Arkansas Supreme Court. JAMES R. NOBLIN Wynne February 1, 2001

The formal charges of misconduct upon which this Order is based arose from the Complaint of Ruthie Moore. James R. Noblin is an anorney who practices primarily in Wynne, Cross County, Arkansas. Ms. Moore and her husband employed Mr. Noblin in April 1993 to help her in difficulties Ms. Moore was having with Carl Baldwin who was installing kitchen cabinets for Ms. Moore. Ms. Moore met with Mr. Noblin and Mr. Noblin thereafter came to Ms. Moore's home to see the status of the work. On that day, May 5, 1993, Ms. Moore paid Mr. Noblin $469.75, $400.00 in fees and $69.75 in filing fees, to represent her in obtaining a refund from Mr. Baldwin. Ms. Moore believed that Mr. Noblin was working on her case and, from time to time, would visit with him at his office. Mr. Noblin would inform Ms. Moore that he could not get time in the Wynne court because of other coun matters and would provide dates by which the matter could be concluded. According to Ms. Moore, it was one excuse mer the other. In late 1999, Mr. Noblin srated that he was having to deal directly with Mr. Baldwin as Mr. Baldwin's attorney was no longer representing him. Ms. Moore stated that she has learned Mr. Noblin has left the Wynne area and has relocated to Texas. Ms. Moore's legal matter has not been concluded. Service of the formal complaint by certified mail, restricted delivery, to Mr. Noblin's address on record with the Arkansas Supreme Coun Clerk was attempted by the Office of the Executive Director. The mailing was returned "unclaimed". Pursuant to Section 5E, Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Attorneys at Law (Procedures), a Warning Order was publ ished in the newspaper of

Disl'iplillill'y ldiolls

general circulation within the locale of Mr. Noblin's address of record, the Forrest City Times Herald. Mr. Noblin failed to respond to the Warning Order. His failure to respond timely to the formal complaint constitutes admission of the faCtual allegations contained therein pursuant to Section 51(4) of the Procedures. Upon consideration of the formal complaint and the Arkansas Model Rules of Professional Conduct, the Comminee on Professional Conduct finds: 1. That Mr. Noblin violated Model Rule 1.3 when, from May 1993 to the present, he failed to take action on behalf of his clients to actively pursue their legal matter. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. 2. That Mr. Noblin violated Model Rule BA(d) by his failure to pursue civil remedies on behalf of his clients, who are now barred from having their matter heard in court. Model Rule BA(d) requires that a lawyer not engage in conduct that is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that JAMES R. NOBLIN, Arkansas Bar lD #88144, be, and hereby is, SUSPENDED from the practice of law for three (3) months for his conduct in this matter. The suspension shall become effective upon the filing of this Order. GEORGE ROBIN WADLEY, JR. Jonesboro February 22, 200 I

The formal charges of misconduct upon which this Order is premised arose from the Complaint of Donnie Wayne Ault. Mr. Ault hired George Robin Wadley, Jr., an attorney practicing primarily in Jonesboro, to cause a contempt petition to be filed against Mr. Ault's ex-wife in connection with Me. Ault's inability to have visitation with his minor son. Mr. Wadley guored a fee of $600 ro Mr. AtJr. During their initial meeting, Mr. Ault paid the fee in full. Mter being paid, Mr. Wadley assured Mr. Ault that he would begin work on the legal maner. For the following six (6) weeks, Mr. Aulr attempted on numerous

occasions to contact Mr. WadJey, but was unsuccessful. On August 10, 1999, before Mr. Wadley filed any pleadings on Mr. Ault's behalf, Mr. Ault received a Motion for Contempt from his ex-wife's attorney, Lena Horn McCasdain. After being served with this Motion, Mr. Ault delivered a copy of the Motion to Me. Wadley. Mr. Ault was assured by Mr. Wadley that the matter would be taken care of and addressed. At no time during this meeting did Mr. Wadley request additional fees to handJe a response to the Motion. In fact, he did not even mention fees, according to Me. Auk In September, Mr. Ault contacted Mr. Wadley to obtain information about whether a reply had been received to the response he assumed Mr. Wadley had filed. Again, Mr. Wadley assured Mr. Ault that he was working on his legal matter for him. Mr. Awt received no communication from Mr. Wadley after this conversation. In October 1999, Me. Ault went to Beebe to pick his son up for visitation. When he arrived to pick up his son, Mr. Aulr learned that a

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til\\}CI' Default Judgment had been entered in favor of his ex-wife and he was unable to obtain his son. During the following week, Mr. Ault attempted on numerous occasions to speak with Mr. Wadley. He was unsuccessful until the end of the week. During their conversadon, Mr. Wadley advised Mr. Ault that he had filed a response and that a default was not appropriate. Further, Mr. Wadley advised Mr. Ault that he would contact Ms. McCastiain to straighten everything our. Because of the siruation, Mr. Ault was unable to see or speak with his son on his son's fifth birthday. On October 22, 1999, Mr. Ault was advised by Mr. Wadley that a court date had been set for ovember 4, 1999. On ovember 3, 1999, Mr. Aul, believed that he had an appoimment with Mr. Wadley to discuss the matter. Because of his past experience with Mr. Wadley canceling appointments, Mr. Ault called to confirm the appointment prior to going to Mr. Wadley's office. Mr. Wadley's secretary advised Mr. Ault that the meeting was canceled because Mr. Wadley had been called our of tOwn. In addition, she advised Mr. Ault that the court date had to be rescheduled. Throughout the month of ovember, Mr. Ault explained to Mr. Wadley on numerous occasions that he really wanted to have a visitation schedule set with his son because he had not been allowed to see his son since ptember 25, 1999. Mr. Wadley undertook no action in that regard on behalf of Mr. Auk On December 6, 1999, Mr. Ault terminated Mr. Wadley's services. The following day, Mr. Wadley contacted Mr. Ault and advised that a court date had been scheduled for December 16, 1999. to address the issues concerning visitation with Mr. Ault's son. After that conversation, Mr. Wadley did not contact Mr. Ault. Mr. Ault left several messages for Mr. Wadley bur ,hey all went unreturned. Finally, on December 13, 1999. Mr. Ault and his sister contacted the Lonoke County Courthouse and spoke with an employee in Judge Whiteaker's office. During the conversation, Mr. Ault learned thar no COUft date had ever been set in the matter at Mr. Wadley's request. When the conversation was concluded, Mr. Ault again terminated Mr. Wadley's services. Mr. Wadley, through his office manager. returned the $600 to Mr. Auk In addition, Mr. Ault received what was purporred to be Mr. Wadley's file in Mr. Ault's

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marter. Mr. Ault hired another attorney. Barbara Elmore, to pursue his matter for him and to investigate what action. if any. Mr. Wadley had raken on Mr. Ault's behalf Ms. Elmore filed a Motion to Set Aside Defaulr Judgment on Mr. Ault's behalf. However, because the COlift and the opposing counsel, Ms. McCasdain, never received an Answer to the Motion from Mr. Wadley on behaJf of Mr. Ault, the Coun denied the Motion. Mr. Wadley was served with the formaJ complaint. pursuant to Section 5E, Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (Procedures), on March 29, 2000. Mr. \Xladley failed ro respond to the formal complaint. His failure to respond timely to the formal complaint constitutes admission of the faccual allegations contained therein pursuant to Section 51(4) of the Procedures. Upon consideration of the formal complaint and the Arkansas Model Rules of Professional Conduct. the Committee on Professional Conduct finds: 1. That Mr. Wadley's conducr violated Model Rule 1.1 when he failed '0 file any pleadings on Mr. Ault's behaJf in connection with his visitation with Mr. Aulr's minor son and when he failed to file a Response to the Motion for Contempt and Motion to Modify Decree filed by Mr. Ault's ex-wife, even though Mr. Ault delivered the Motion to Mr. Wadley the day after he was served. Model Rule 1.1 re<Juires. in pertinent part, that a lawyer provide competent represemation to a client, including the thoroughness and preparation reasonably necessary for the representation. 2. That Mr. Wadley's conduct violated Model Rule 1.2(a) when failed to file a contempt petition against Mr. Ault's ex-wife in connection with Mr. Ault's inabiliry to have visitation with his son and when he failed to respond to the Motion for Contempt filed against his client, Mr. Ault. Model Rule 1.2(a) requires, in pertinent parr, that 3 lawyer abide by a client's decisions concerning the objectives of representation and consulr with the dient as to the means by which they are to be pursued. 3. That Mr. Wadley's conduct violated Model Rule 1.3 when he failed to file a response to the Motion for Contempt which was served on his dient. Mr. Auk Model Rule 1.3 requires that a lawyer act with reasonable

diligence and prompmess In represennng a diem. 4. That Mr. Wadley's conduct violated Modd Rule l.4(a) when he failed (0 rerum the numerous messages left for him by Mr. Ault requesting information about Mr. Aule's legal maner and when he never advised Mr. Ault that he had failed to respond to the MOtion for Comempt and had failed to comact Mr. Ault's ex-wi fe's counsel about the legal maner. Model Rule 1.4(a) requires that a lawyer keep a diem reasonably informed about the srnrus of a maner and promptly comply with reasonable requests for information. 5. That Mr. \Vadley's conduct violated Model Rule 8.4(c) when, on more than one occasion. he falsely advised Mr. Ault that court hearings were scheduled in the legal maner involving Mr. Ault's ex-wife and when he f.l1sely advised Mr. Aulr ,hat he had responded to the Motion for Contempt on Mr. Ault's behalf. Model Rule 8.4(c) requires. in pertinem parr, that a lawyer not engage in conduct involving dishonesty or misrepresenrntlon. 6. That Mr. Wadley's conduct violated Model Rule 8.4(d) since his failure ro file a response to the MOtion for Contempt resulted in a Default Judgment being emered against his diem, Mr. Ault, required that Mr. Ault initiate attempts to have the Default Judgmem set aside and caused a lengthy delay in Mr. Ault's atte.mpts to establish a regular visitenion schedule with his son. Model Rule 8.4(d) requires that a lawyer not engage in conduct that is prejudiciaJ to the administradon of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct ,hat GEORGE ROBI WADLEY, JR., Arkansas Bar ID #87180, be, and hereby is, SUSPENDED from the practice of law for a period of 0 E (I) YEAR for his conduct in this maner. The suspension shaJl become effective as of the date of the filing of this Order. GEORGE ROB! WADLEY, JR. Jonesboro February 22, 200 I The formaJ charges of misconduct upon which this Order is premised arose from the Complaint of Christopher Thomas. Director

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of the Office of Professional Programs of Supreme Court of Arkansas. Mr. Thomas also serves as the Secretary CO the Continuing Legal Education Board (CLE Board). Mr. Thomas reported that on ovember 20. 1999. CLE Board suspended the license to practice law in Arkansas of various attorney because of the failure co meer the continuing legal education requirements. One of attorneys suspended was George Robin \Vadley, Jr., an attorney practicing primarily in Jonesboro. Mr. Wadley comacred Mr. Thomas' office sometime after his license was suspended to inquire aoom being reinstated. On January 10. 2000. a Petition for Reinstatemenc was sent to Mr. Wadley. As of March 18, 2000, Mr. Wadley had not rewrned the completed Pecirion. As a result, Mr. WadJey's license to practice law remained suspended. In the course of his employment, Mr. Thomas received correspondence from Carol V. Bohannan, Hearing Judge, Arkansas POSt Prison Transfer Board. In the correspondence, Ms. Bohannan advised that on February 7, 2000, Mr. Wadley appeared at a revocation hearing on behalf of a parolee. Prior to the start of the hearing, Ms. Bohannan inquired of Mr. Wadley's licensure status. Mr. Wadley advised Ms. Bohannan that he had taken care of the situation with his ClE deficiency and that his license was in good standing. Ms. Bohannan subsequently learned that Mr. Wadley's license was still suspended because he lacked 10.75 hours to meet the required amount of ClE hours, had nor paid the S200 deficiency fee and had not filed a petition for reinstatement. Upon receipr of the informarion from Ms. Bohannan, Mr. Thomas conferred with Phil Hout, Chair of the CLE Board, who joined with Mr. Thomas in reponing the information to the Committee. Mr. Wadley was served with the formal complaint, pursuam to Section 5E, Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Attorneys at Law (Procedures), on March 29, 2000. Mr. Wadley failed to respond to the formal complaint. His failure to respond timely CO the formal complaint constitU[es admission of rhe facrual allegations contained therein pursuanr ro Secrion 51(4) of the Procedures. Upon considerarion of the formal complaim and the Arkansas Model Rules of

Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Wadley's conduct violated Model Rule 5.5(a) when he appeared before the Arkansas Post Prison Transfer Board and represemed a diem in a revocation hearing at a time when his license to practice law in Arkansas was suspended. Model Rule 5.5(a) requires that a lawyer not practice law in a jurisdicrion where doing so violates the regulation of the legal profession in that jurisdiction. 2. That Mr. Wadley's conduct violated Model Rule 8.4(c) when he advised Carol Bohannan on February 7, 2000 tha, he had raken care of the siruation with the CLE Board's suspension and when he told Ms. Bohannan, prior to a hearing before the parole board that his law license was in good standing. Model RuJe 8.4(c) requires, in pertinent parr, thar a lawyer not engage in conduct involving dishonesty or misrepresentation. 3. That Mr. Wadley's conduct violated Rule 3 of the Arkansas Rules for Minimum Continuing legal Education, incorporated into the Arkansas Model Rules pursuant to Section 1ÂŁ(6) of the Procedures, when he fajled to complete the minimum twelve (12) hours for continuing legal education for the reporting period July I, 1998, through June 30, 1999. without being excepted from doing so. Rule 3 of the Arkansas Supreme Court Rules for Minimum Cominuing Legal Education requires, in pertinem pan, that every member of the Bar of Arkansas, except as may be otherwise provided by these rules, and, excepting those attorneys granred voluntary inactive starus by the Arkansas Supreme Court Committee on Professional Conduct, complete rwe!ve (12) hours of approved continuing legal education during each reponing period. \XlHEREFORE, it is the decision and order of the Arkansas Supreme Coun Committee on Professional Conduct that GEORGE ROBIN WADLEY, JR., Arkansas Bar ID #87180, be, and hereby is, SUSPENDED from the practice of law for a period of ONE (I) YEAR for his conduct in this marter. The suspension shall become effective as of the date of the filing of this Order.

GEORGE ROBI WADLEY, JR. Jonesboro February 22, 200 I The formal charges of miscondua upon which this Order is premised arose from the Complaint of Donald E. Barber. In December 1997, Mr. Barber hired George Robin Wadley, Jr.. an attorney practicing primarily in Jonesboro, to represent him in a divorce proceeding and to seek custody of his daughter. Mr. Barber paid Mr. Wadley the agreed upon fee of SI500 on December 29, 1997. Mr. Wadley did nOt take any action on Mr. Barber's behalf after the fee payment was made. Mr. Wadley relocated his office bur gave Mr. Barber no notice of this fact. Mr. Barber learned of the relocation by way of a sign on the front door of Mr. Wadley's old office. In addition, Mr. Barber was unable to reach Mr. Wadley by telephone because Mr. Wadley's relephone had been disconnected. Because of his inability ro talk with Mr. Wadley, Mr. Barber sent him a lerrer dated February 19, 1998, terminating Mr. Wadley's services and requesting return of the $1500. Further, Mr. Barber requesred the return of the documentation that he had provided to Mr. Wadley during their only meeting. Mr. Wadley did nor rerum the funds nor did he return the conrenrs of the file. In fact, Mr. Wadley never conracted Mr. Barber at all. Mr. Barber hired other counsel and a divorce was gran red to him on May II, 1998. Mr. Barber's new counsel also sued Mr. Wadley for the $1500 paymem. Mr. Wadley was served bur defaulted in the lawsuit. Mr. Barber has a S 1500 judgment against Mr. Wadley which Mr. Wadley has made no efforr to satisfy. Mr. Wadley was served with the formal complaint, pursuant to Section 5E. Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Attorneys at Law (Procedures), on March 29, 2000. Mr. Wadley failed [0 respond ro the formal complaint. His failure to respond timely to the formal complaint constitures admission of the factual allegations contained therein pursuant to Secrion 51(4) of the Procedures. Upon consideration of the formal complainr and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conducr finds: I. Thar Mr. Wadley's condun violated

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The ,Irkausas LaWler

tim}III' Model Rule 1.1 when he failed to exhibit any of the thoroughness or preparation required in order to pursue a divorce action on Mr. Barber's behalf. Model Rule 1.1 requires, in pertinent pan, that a lawyer provide competent representation to a client,

Jack Davis

Sid McCollum

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including the thoroughness and preparation reasonably necessary for the representation. 2. That Mr. Wadley's conduct violated Model Rule 1.2(a) when he F.1iled ro putSue a divorce and seck custody of Mr. Barber's daughter, although those were the objectives of

Bob Hornberger

Frank Hamlin

his represenration of Mr. Barber. Model Rule 1.2(03) requires, in peninem parr, that a lawyer abide by a dienr's decisions concerning the objectives of representation. 3. That Mr. Wadley's conduct violated Model Rule 1.3 when he F.1iled ro file a complainr for divolU on Mr. Barber's behalf from the time he was paid until his services were terminated twO (2) months later. Model Rule t.3 requires that a lawyer act with reasonable diligence and promptness in represenring a client. 4. That Mr. Wadley's conduct violated Model Rule 1.16(d) when he F.1iled ro rerum the unearned portion of the advance payment of fee after Mr. Barber terminated his services and when he failed to return the contents of Mr. Barber's file to him after his services were terminated. Model Rule t .16(d) requires, in pertinent pan, upon termination of representation, that a lawyer cake steps to the extent reasonably practicable to protect a cliem's interests, such as surrendering papers and property to which the client is enrirled and refunding any advance payment of fee that has not been earned. 5. That Mr. Wadley's conduct violated Model Rule 8A(d) b<cau.s< he F.1iled to timely satisfy the Judgment that Mr. Barber obtained against him on Novembet 20, 1999. Model Rule 8.4(d) requires that a lawyer not engage in conduct that is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Commirree on Professional Conduct thar GEORGE ROBI WADLEY, JR., Arkansas Bar ID '87180, be, and hereby is, SUSPENDED from the ptactice of law for a period of 0 E (I) YEAR for his conduct in this marrero The suspension shall become effective as of the date of the filing of this Order.

INC Museum Center. Suite 10. 500 East Markham Street Little Rock. AR 7220 I 501-376-2121 I 104 South Walton Blvd .. Suite 20, Bentonville, AR 72712 SOI-Z7I-ZZ37 423 Rogers Avenue, Suite 101, Fort Smith, AR 72902 501-783-1776

Tie lrkulll LaWler

WM1Wk~ar.cI.

NOTICE OF REPRIMAND CHARLIE LEE RUDD Hot Springs April 20, 200 I

The formal complaint of misconduct arose from the complaint of Sue Ellen Ott. Ms. On: employed Charlie Lee Rudd, an attorney

Lil\\JI'I' practJcJng law primarily in Hot Springs. Arkansas. for the purpose of representing her in recovery of damages from a dog bite. In September 1998, Ms. On met with Mr. Rudd and discussed the mance at length. As the maner did not involve a large amount of damages. Ms. On questioned Mr. Rudd whether she should sue the owner of me dog. Kelly Mitchell, in small claims court herself. Mr. Rudd stated m Ms. Ott that he would represem her on a contingency fee basis. There was nor a written fee agreement. Following the meeting, Mr. Rudd prepared a lener and mailed it co Ms. Mitchell. The lener dated September 24, 1998, requested that Ms. MircheJl comacr Mr. Rudd and discuss settlement within two days of receipt of the (cuef or action to protect Ms. On's legal remedies would be undertaken. Ms. Mitchell did respond to the lerrer but no agreemenr could be reached. Upon being informed of the discussion with Ms. Mitchell, Ms. Orr informed Mr. Rudd that legal proceedings should begin in a speedy manner. Following the last conversation with Mr. Rudd, Ms. Orr placed telephone calls to his office (Q discuss the status of her case. Ms. Ott was informed on different occasions that Mr. Rudd was out of the office due to illness, out for the day, or that he had gone to Texas for three weeks. Ms. Ott did make an appointmenr to meet with Mr. Rudd on January 27, 1999. Ms. Orr met with Mr. Rudd and again suggested that she should file suit herself against Ms. Mitchell in small claims court. Mr. Rudd affirmed to Ms. Orr mat he was going to represent her in the matter. Ms. Ott wrore Mr. Rudd a check in the amount of 575.00 for filing fees. Following the January 1999 meeting, Ms. Orr placed telephone calls to Mr. Rudd and, on one occasion, spoke with him. During the discussion, Mr. Rudd stated thar he had nor obtained a couer date and had been really busy with other cases. In July 1999, Ms. Orr placed a telephone caB to Mr. Rudd's office and spoke to his secretary. Mr. Rudd was not in his office during the telephone call but Ms. Ott informed Mr. Rudd's secretary that she believed he was roo busy to represent her and requested that M r. Rudd return to her the $75.00 filing fee. Ms. Orr has not received the

ltisl'ipliDill'r .tl't ions

575.00 filing fee. As ofJune 7, 2000, the recotds of the Hot Springs Municipal Coun Clerk and the Garland County Circuit Coun CJerk did not reflect any marrer having been filed on Ms. Orr's behalf by Mt. Rudd. Mr. Rudd was served with me formal complaint, pursuant ro Section 5拢, Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (Procedures), on November 14. 2000 and a response from Mr. Rudd was due on or before December 6, 2000. No timely response was received within the twenty day period for which to file a response. Mr. Rudd did provide an untimely response to the formal complaint. Upon consideration of the formal complaint, the untimely response, and the Arkansas Model Rules of Professional Conduct. the Committee on Professional Conduct finds: 1. That Mr. Rudd's conduct violated Model Rule 1.3 when, from September 1998 through June 2000. he failed to iniriate legal proceedings on behalf of his client, Sue Ellen Orr. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. 2. That Mr. Rudd's conduct violated Model Rule 1.4(a) when, despite Ms. Ott'S numerous telephone calls, Mr. Rudd failed to return any telephone calls. Model Rule I.4(a) requires [hat a lawyer keep a client reasonably informed abom the starus of a matter and promptly comply with reasonable requests for information. 3. That Mr. Rudd's conduct violated Model Rule 1.5(c) when he failed to place a contingent fee agreement in writing. Model Rule 1.5(c) requires that a contingent fee agreement be in writing and state the method by which the fee is to be determined, including the percentage or percemages that shall accrue to the lawyer in [he evem ofsenlement, trial or appeal. litigation and other expenses to be deducted from the recovery, and whemer such expenses are to be deducted before or after the contingent fee is calculated. 4. That Mr. Rudd's conduct violated Model Rule I.16(d) when, after being informed thar he was too busy to represent her and requested to teturn the filing fees to her, he failed to forward the unused filing fee to her. Model

Rule 1.16(d) requires [hat upon termination of representation. a lawyer take steps to the extent reasonably practicable to proteer me c1ieor's interests, such as refunding any advanced payment of fee that has nor been earned. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Committee on Professional Conduct thar CHARLIE LEE RUDD, Arkansas Bat ID #89087, be, and hereby is, REPRlMA DED for his conduct For his failure to timely in mis marrero respond to the formal complaint, Mr. Rudd is fined the sum of $250.00, pursuant to Section 51(1) and 8A(2) of the Procedutes of rhe Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. Said fine to be paid within thirty (30) days of the filing of this Order with the Arkansas Supreme Court Clerk.

FRED HART, JR. Little Rock March 15,2001 The formal charges of misconducr upon which this Order is premised arose out of the records of the United Stales District Court for the Eastern District of Arkansas. The Court's records reflected that on ovember 2. 1998, Fred Hart, Jr., an attorney practicing primarily in Little Rock, was convicted by a jury on two counts of violations of 18 U.S.c. 248, the Freedom of Access to Clinic Entrances Act ("FACE Act"). The Judgmenr of Conviction was entered February 11. 1999. and affirmed by the United States COUrt of Appeals, Eighlh Circuit, on May I, 2000. Mr. Hart was and remains, a self-declared aori路abortion activist, who has regularly engaged in peaceful protests outside abortion clinics. On Seplember 24, 1997, Mr. Hart rented two Ryder trucks. Mr. Hart parked the trucks in the driveways of two Little Rock abortion clinics, the Women's Community Health Center and the Little Rock Family The Planning Services ("the clinics"). placement of the trucks coincided with a visir from Presidenr Clinton to Little Rock. Each truck was unattended and carried no indication as to irs purpose for being there. On the morning ofSeprember 25,1997, employees of the clinics arrived at their places of employmem and were alarmed by the

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til\\JPI' presence of the trucks. They were reminded of the 1994 bombing of the Murrah Federal Building in Oklahoma City. Oklahoma. which involved a Ryder truck. Fearing the trucks contained bombs, the employees left the clinics and notified the police. The areas surrounding the clinics were evacuated, including neighboring establishmems. The bomb squad was called to investigate. It was determined that the trucks contained no explosive materials. Based upon mese facts, Mr. Hart was indicted on [WO counts of violating the FACE act and was subsequently convicted by a jury on bOth counts. After the jury verdict, the Honorable John F. Forester, United States Magistrate for the Eastern District of Arkansas, sentenced Mr. Hart to four years probation, the first twelve months of which was to be served in home detemion; 200 hours of community service; and a special assessmenr of $50.00. Upon consideration of the formal complaint, the response thereto, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: 1. That Mr. Han's conduct violated Model Rule BA(b) when a Judgment of Conviction was entered of record finding Mr. Hart guilty of [wo federal criminal violations of the Freedom of Access to Clinics Act, 18 United States Code, Section 248, a Class A Misdemea.nor, based. upon his placement of a Ryder truck at me entrances of the \'(Iomen's Community Health Cenrer and the Little Rock Family Planning Services, both of Little Rock, to intenrionally intimidate and interfere with persons seeking the services of the twO organizations and with persons providing the organizations' services. Model Rule 8A(b) requires, in pertinent part, that a lawyer not commit a criminal act that reflects adversely on the lawyer's fitness as a lawyer. WHEREFORE, it is the decision and order of me Arkansas Supreme CoUf( Commirree on Professional Conduct thar FRED HART. JR.â&#x20AC;˘ Arkansas Bar ID #75055. be. and hereby is. REPRJMANDED, for his conduct in this marrero

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Uisriplinal} .\ft ions

CARL FREDERJCK MOYER Green Forest February 7. 2001 The formal charges of misconduct upon which this Order is based arose from the complaint of Michael and Judy Mayfield. Carl Frederick Moyer, an attorney primarily practicing at the time of the conduct alleged herein in Green Forest, Carroll County, Arkansas, now practicing in MonticeUo, Drew County, Arkansas, was employed by Mr. and Mrs. Mayfield on February 12.2000. to file a hapter 7 bankruptcy petition on their behalf. On February 12. 2000. Mr. and Mrs. M,yfield paid Mr. Moyer a $700.00 rerainer represenring a $500.00 anorney's fee and $200.00 in costs. Mr. Moyer acknowledged Thereafter, the receipt of the retainer. M,yfields promptly completed the paperwork required by Mr. Moyer and left ir at his office. However, as of Augusr 4,2000, no bankruptcy pelition had been filed by M r. Moyer for tbe Mayfields. Mr. Moyer attribured the delay in filing the petition m the fact that he did nor have one of the required forms m file the perition, but subsequently secured the form from a Harrison law firm. Then, on March I, 2000, Mr. Moyer was employed as a deputy prosecuting arrorney for the 10th Judicial DiStrict and relocated ro Monticello, Arkansas. Despite numerous requests, Mr. Moyer has refused to refund the retainer paid by Mr. and Mrs. Mayfield. Mr. Moyer admitted that he had a dury to refund the unearned portion of the legal fees to the Mayfields since he was no longer able to represent them in pursuit of bankruptcy relief. However, he explained that since the Mayfields filed suit against him in the BerryvilJe Municipal Coun, be elecred to allow the Court m determine the portion of the fees to be refunded. He stated that sine(: he received me formal complainr herein, he had decided ro refund all of the legal fees and filing fees paid by the Mayfields. forthwith. regardless of the pending Court action. However, Mr. Moyer did not supply the Commirree wim proof mat he had done so. Upon consideration of the formal complainr. response herein, and the Arkansas Model RuJes of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Moyer's conduct violated Model Rule 1.3 when he failed to file a

Chapter 7 Bankruprcy Peririon on behalf of Michael and Judy Mayfield despite being hired to do so on February 12. 2000. Model Rule 1.3 requires mar a lawyer ace with reasonable diligence and promptness in representing a client. 2. Thar Mr. Moyer's conduct violated Model Rule 1.16(d) when he failed ro refund any unearned anomer's fees and filing fees to

his clients. Michael and Judy Mayfield, afr:er they requested (he refund following his failure to timely file their Chapter 7 bankruprcy petition. Model Rule 1.16(d) requires, in pertinent part. upon termination of repr~nra[ion that an anomq rake steps to the extent reasonably practicable to pcorecr me client's interests. such as refunding any advanced paymenr of fee that has not been earned. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Commi(rce on Professional Conduct that CARL FREDERJCK MOYER, Arkansas Bar #90067. be and hereby is REPRJMANDED for his conduct in this marrero In addition, Mr. Moyer is ordered to pay Michael and Judy Mayfield Seven Hundred Dollars ($700.00) in restitution pursuant to Section 8A(3) of me Procedures. The restitution shall be paid no later rhan thirty (30) days from the filing of mis Order wim me Arkansas Supreme CoUrt Clerk.

JEROME M. REPHA Hot Springs February 8, 2001 The formaJ charges of misconduct upon which this Order is premised arose from the Complaint of Eleanor R. Crisml, President of DonaJd F. Rubin, Inc., a Florida corporation. The corporation owned and held certain judgments against a Mr. and Mrs. James Smith. The judgments were recorded in me public records of Garland County, Arkansas. On February 3. 1999. Ms. Crisrol was conraaed by Jerome M. Rephan, an arromey practicing law in Hor Springs, Arkansas. Mr. Rephan informed Ms. Cristol that he was representing Mr. and Mrs. Smith and was calling to determine whar amount the corporation would accept from the: Smims in order to satisfy me judgmencs. During the discussion, Ms. Crisrol agreed

LilWrrl' Ilisriplimll} .\ft inns to serde rhe judgments for $17.542.31. rhe original face value. Ms. Cristol agreed to wa.ive: the several years of accumulated interest, conditioned on funds being held in escrow by Hot Springs Tide Company on the corporation's behalf. In addirion, me funds were to be provided to Ms. Cristol by overnight delivery on February 5. 1999. Mr. Rephan confirmed this agreement in writing on February 4, 1999. The written agree-mem sene by Mr. Rephan is not dar on who was responsible for sending the funds ro Ms. Cristol by overnight delivery. Based upon the conditions and Mr. Rephan's confirmation of the same, Ms. Criscol signed the agreement co release liens which had been prepared by Mr. Rephan. Following his receipt of the signed agreemenr, Mr. Rephan advised the tide company but cannot confirm that me ride company was advised that me funds were to be sent to Ms. Cristol by overnight delivery. According to Mr. Rephan, both in his written response and his testimony before the Committee on Friday, January 19, 200 I, his secretary accepted me check from the title company made payable to Ms. Cristol on February 4th or 5th. Mr. Rephan advised mat he did not request delivery of the check to his office and was surprised when he realized it was there. Once he received the check, Mr. Rephan sent Ms. Cristo I a letter and advised her that he was holding the funds in his file. He also demanded a fee for his "legal services" in collecting and transmitting the funds to her. According to Mr. Rephan, he never requested, authorized or anticipated receipt of those funds. Mr. Reph:ln asserred mat he did not know why the funds were sent directly to him. His letter to Ms. Cristol acknowledged that he had never discussed his representation with Ms. Cristol nor had she ever mentioned retaining him. It was Mr. Rephan's asKrtion mat he wrote the letter to Ms. Cristol because he did nor wanr to underrake any personal without the transfer responsibiliries corporation's approval and direction. Mr. Rephan also stared that Ms. Cristol was free to decline his employment. Since she declined to use his services, he did not charge her a fee. It was his explanation th~t he required employment prior to underraking duties regarding the transfer of funds. Mr. Rephan acknowledged that he ultimately returned the funds to the title company and that they were

then forwarded to Ms. Cristo!. Mr. Rephan had no explanation to the Committee why he did not rerum the check to the tirle company when he first received it other than he did not want to be personaJly responsible for the funds if they did not reach Ms. Cristo!. Mr. Rephan still maintained that his actions were appropriate. He believed thar if he had sent her the check, he would have been acting without authoriey. Mr. Rephan also asserted mat it was his duey to inform Ms. Cristol of his receipt of the funds. Upon consideration of the formal complaint, the response thereto, the testimony of Mr. Rephan at the hearing before the Committee and the Arkansas Model Rules of ProfessionaJ Conduct, the Committee on ProfessionaJ Conduct unanimowly finds: 1. That Mr. Rephan's conduct violated Model Rule 8.4(d). to wit: (i) He attempted ro obtain an attorney's fee from Ms. Cristol who was not his client but a parey adverse to his clients; (ii) His conduct caused Ms. Cristol to have to contact another attorney because she felt her rights were being breached; and, (iii) His attempt to obtain a fee from Ms. Cristol caused a delay for the corporation in obtaining irs agreed reduced judgment amount. Model Rule 8A(d) requires mar a lawyer not engage in conducr that is prejudicial TO the administration of justice. WHEREFORE, ir is the unanimow dÂŤision and order of the Arkansas Supreme Couer Committee on ProfessionaJ Conduct rhatJEROME M. REPHAN. Arkansas Bar ID #79240 be. and hereby is. REPRlMANDED for his conduct in this matter. In addition, pursuant TO Section 8A(2) of the Procedures of the Arkansas Supreme Court ReguJating ProfessionaJ Conduct of At(orneys at Law, the Committee imposed a fine in the amount of $250.00. The fine is due and payable in rhe Office of ProfessionaJ Conduct no later (han rhirty (30) days from the filing of this Order.

RlCHARD JARBOE Walnur Ridge April 16.2001 The formaJ charges of misconduct upon which mis Order came (0 me attention of the Committee due to tesrimony given in U.S. v. George Nicholas "Nick"Wilson, er aJ, Case o. LR-CR-99-61. Richard Jarboe is an

attorney practicing in WaJnut Ridge. Lawrence County. Arkansas. On March 9. 2000. Mr. Jarboe tesrified in Federal Coun in rhe above styled case fully cooperating with the authorities without any plea agreement, immuniry or pretrial diversion. He restified that in the summer of 1995, Murrey Grider approached him (0 do child support work for him in Randolph and Lawrence Counties. Mr. Grider compensated Mr. Jarboe for Mr. Jarboe's work with a flar monthly fee of $1.250.00. Later. the liar monthly fee was increased (0 $1,500.00. Subsequently, then Srate Senator Nick Wilson met with Mr. Jarboe. Mr. Wilson informed Mr. Jarboe that he would be receiving a check for his work and a bill from Senator Wilson for "compliance." Mr. Jarboe then received monthly checks from the Arkansas Office of Child uppon Enforcement (OSCE) for between $5.000.00 to $6,000.00. Mr. Jarboe would deposit the checks inco his client trust account, pay himself his monthly flat fee and forward the remainder to Mr. Wilson. In March, 1997, Mr. Jarboe received an additional monrhly cheek for March ftom OSCE for $2,740.00. Mr. Wilson instrucred Mr. Jarboe to pass the money on to him without a deduction by Mr. Jarboe. Mr. Jarboe complied wirh Mr. Wilson's instructions. Mr. Jarboe affirmatively stated in his response (hat he had been approached by Mr. Grider to assist Mr. Grider in his child support work. Mr. Jarboe had declined (0 do so for several reasons. However, in the late Fall of 1994, Murrey Grider suffered a serious stroke. At the time, he and Mr. Grider had been the best of friends for 15 years. Mr. Jarboe admitted that in the summer of 1995, Mr. Grider again approached him regarding the child support work. It was anticipated that Mr. Grider's son, Joe would graduate law school in May, 1996 and that Mr. Jarboe with help Mr. Grider until men. Mr. Jarboe admitted he was paid initially, a flat monthly fee of $1,250.00 which was later increased (0 $1.500.00. He was responsible for child suppOrt services in Randolph and Sharp Counties when other attorneys had conAicrs. Mr. Jarboe stated that after this agreement, Mr. Grider informed him that Mr. Wilson would be coming by to taJk to him. At that meeting. then Senator Wilson informed Mr.

111. iUd/SIller tnl

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Lil\\Jel' Itisl'ipliDiIl} ;\l't ions Jarboe that Mr. Jarboe would be receiving a check and that Mr. Jarboe would receive a bill for Mr. Wilson's services. Mr. Jarboe seated that when he received the check he deposited it into his client trust and paid Mr. Wilson's

bill from that account. At the time, Mr. Jarboe did not question the arrangement as he was wdl aware mat Mr. Grider and Mr. Wilson had the child support contract in the area. Mr. Jarboe affirmatively stated that he trusted Mr.

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Grider and believed at the time the transactions were proper. Mr. Jarboe seated that in hindsight. he was wrong for not making a derailed inquiry and believed he should have contacted the Office of Child Suppor( Enforcement to insure that the arrangement with Mr. Wilson was appropriate. Following Mr. Jarboe's receipt of the formal complaint, the respondent anorney offered (0 enter into a discipline by consent pursuant to Section 8e of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys (Procedures). The Acting United States Anorney for the Eastern District of Arkansas, who personally tried the "Nick Wilson" cases, has concurred in the discipline by consent. Upon consideration of the formal complaint, the respondent attorney's response, the terms of me proposed consenr (0 discipline hereinafter stated, the AJternate Committee on Professional Conduct approval thereof, and the Arkansas Model RuJes of Professional Condua, the Comminee on Professional Condua finds: 1. That Mr. Jarboe's conduct violated Model Rule 1.5(e) when from the summer of 1995 to June 1997, he split fees earned from his client, OSCE, with Mr. George "Nick"Wilson, when Mr. Wilson did no work on the account nor was mere any written agreement between the dient and Mr. Wlison did not acknowledge (hat he was accepting responsibility for the work. Modd RuJe 1.5(e) requires mat a division of fee between lawyers who are not in the same firm may be made only if: (I) the division is in proportion (0 the services performed by each lawyer or, by written agreement with the diem, each lawyer assumes joint responsibility for the represemarion; (2) me c1ie.nt is advised of and doe.s nO[ object (0 the participation of all the lawyers involved; and (3) the tOraI fee is reasonable. WHEREFORE, in accordance with the consent to discipline presented by Mr. Jarboe and the Executive Director, Stark Ligon, it is the decision and order of the Arkansas Supreme Coon Comminee on Professional Conduct that Richard Jarbo<, Arkansas Bar 10# 69038, be, and hereby IS, REPRlMANDED for his conduct in this maner.

[ LanIel' Disciplinal'y Mtions RON L. GOODMAN Little Rock March 27, 2001 The formal charges of misconduct upon which this Order is premised arose from the Complaint of Tamara Lee (Hughes) Brown. During 1995, Ms. Brown was involved in two (2) automobile accidents. She hired Ron L. Goodman, an attorney practicing in Little Rock, to represent her in pursuit of all claims ansmg from inJunes suffered 111 the automobile accidents. Mr. Goodman admitted that he represented Ms. Brown in these personal injury matters and also advised that he represented Ms. Brown in other legal matters including a divorce proceeding. Ms. Brown had no complaints with Mr. Goodman's representation of her preceding settlement of her claims. Ms. Brown's complaint arose as a result of notification that medical bills which Mr. Goodman had been responsible for paying had not been paid. Ms. Brown was contacted by Mr. Goodman in a

lerrer dated September 16, 1996, concerning her outstanding medical bills. In the correspondence, Mr. Goodman informed Ms.

Brown that he had paid $530 to North Arkansas Radiology. In March 1999, Ms. Brown received a copy of her credit repon. On that report there is an entry demonstrating an outstanding balance to Associated Radiologists in Jonesboro. Although the names are nor exactly the same, Ms. Brown believes that this is the account that Mr. Goodman was to have paid in October 1996, since she only had one radiology bill from her first accident. Mr. Goodman denied that he ever saw a bill owed to Associated Radiologists. Further, he denied that he ever received any funds owing to Associated Radiologists. He asserts that there was one owed ro Radiology Associates wh.ich he paid. According [Q Mr. Goodman, he explained aU of this to both Ms. Brown and to her mother on numerous occasions. In addition, Mr. Goodman advises mat he returned all of Ms. Brown's telephone calls during his representation of her. Also in

the September 16, 1996, letter, Mr. Goodman transmitted an insurance check in the amount of $1685.80 to Ms. Brown for her to sign and return to him. Ms. Brown did so. The letter specifically sets out that the insurance check is for payment of Ms. Brown's medical bills from her second accident which occurred in Florida. Included with Mr. Goodman's letter was a break-down of the medical bills covered by the check. One of those bills was in the amount of $610 owed to Barnett Chiropractic Clinic. The bill was to be paid in October 1996. However, Ms. Barnett learned that the bill was not paid until August 1998, almost two (2) years after Mr. Goodman received the funds for payment of the outstanding account. Mr. Goodman's explanation is that he paid $910 to Barnett Chiropractic Clinic, but found Out later that the amount was only for Ms. Brown's ex-husband and did not include the amount to be paid on Ms. Brown's behalf. Mr. Goodman explained that as soon as he was notified that there was an amount due on Ms. Brown's account, he sent payment. Mr. Goodman

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101. ~6 NO.I/Sommer 2001

The Arkaosas I.allyer

Lil\\}CI' offered no explanation as to how he might have misunderstood which amounts were due in light of the faa that the break-down he sent Ms. Brown in the September 16, 1996, leuer clearly demonstrated that 5610 was owed on Ms. Brown's account. Another outstanding accoum on Ms. Brown's credit report was the one with Kissimee/Osceola Ambulance in the amount of $41 O. This accoum was still open as of the date of the execution of formal disciplinary complaint according to Ms. Brown. For almost six (6) months after Ms. Brown received her credit report, she anempted [0 contact Mr. Goodman [0 learn whether the medical bill had been paid. She left several messages which were not returned. As of the date of her affidavit to the Comminee, Ms. Brown had not been provided any of the information she requested about this particular medical bill. Another bill that Mr. Goodman was [0 have paid from the check he mailed to Ms. Brown for endorsemem was an account with Florida Hospital Radiologists in the amount of $91.80. Ms. Brown's credit report demonstrates that as of August 1998, this accounr had still not been paid. Ms. Brown requested information from Mr. Goodman about this unpaid bill as well bur he did nOt respond to the requests for information. Even though the amounts are separated on the break-down of medical bills sent to Ms. Brown in September 1996, Mr. Goodman asserted that he believed the $410 bill and the $91.80 bill were included in the amount of 5574.00 owed to the hospital in Florida. Mr. Goodman denied that he ever misled Ms. Brown at any time during the course of his representation of her. He also explained [hat he d;d pay the only radiology bill that he had in his file on Ms. Brown's matters and therefore was not dishonest with her aOOur any of the unpaid bills. Further, Mr. Goodman informed the Comminee that had he known the ambulance bill and the Florida hospital bill had not been paid, he would have paid them immediately. Upon receipt of the formal complaint, Mr. Goodman forwarded Ms. Brown a check in the amoum of$501.08. Mr. Goodman also advised the Committee that during his representation of Ms. Brown, he reduced his fee in the personal injury matters and represented her in the divorce proceeding

51 Tke ,lrkmas LaWler

KKw.arkbar.lol

lIisriplinal} ,trtions

wilhour charging a fee. He offered his apology to his former client for the adverse information on her credit report and stated that he did not do anything intentionally to hurt her or her ex-husband. Following the Committee's initial review of this maner, the Committee requested Mr. Goodman appear before them for an evidentiary hearing pursuant to Section 5H(4) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Anorneys ar Law (Procedures). ~The Committee directed that Mr. Goodman provide certain information prior ro the scheduled hearing. The information was requested by subpoena dated May 31, 2000. Mr. Goodman was nor able ro provide all the information requested by the Comminee. He did provide the checks which were paid ro him for anorney's fees in the personal injury matters. However, he was unable to provide his written fee COntracts. In addition, he was unable to provide the settlement statements for each personal injury matter. AJthough he was able to provide some of the checks written for payment of bills from Ms. Brown's personal injury claims, he was not able ro provide all of them. Mr. Goodman appeared before the Committee on Friday, July 14, 2000, to respond to inquiries about this formal complaint and the allegations contained

therein. At the close of the evidentiary hearing, Mr. Goodman was directed by me Commirree to provide additional documentation to the Committee. Mr. Goodman was unable to provide the additional information, which included (1) the wrinen fee contracts; (2) the settlemem statements prepared in each of Ms_ Brown's legal marters; and. (3) a copy of each check drawn on Mr. Goodman's bank accoum for each of Ms. Brown's legal matters. Upon consideration of the formal complaint, the response thereto, the testimony provided by Mr. Goodman during the evidentiary hearing, and the Arkansas Model Rules of Professional Conduct, the Comminee on Professional Conduct finds: 1. That Mr. Goodman's conduct violated Model Rule 1.4(a) when he failed to respond to Ms. Brown's repeated requests for information about the medical bills he was to pay on her behalf and when he failed to provide Ms. Brown information on the status of the account owed to the ambulance company in Florida. Model Rule 1.4(a) requires that a lawyer keep a c1iem reasonably informed about the Status of a maner and promptly comply with reasonable requests for information. 2. That Mr. Goodman's conduct violated Model Rule 1.l5(b) when he fa;led (0

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Lil\\}el' promprly deliver payment [0 Associarcd Radiologists on Ms. Brown's account; when he failed to pay Bamen Chiropracric Clinic their account baJance of $610 until aJmost [Wo (2) years af((:r he received the funds to pay them; when he failed [0 pay the hill owed to Kissimee/Oscrola Ambulance during Oao~r 1996 when he received the funds, thereby allowing the bill to be rurned over (0 collection in November 1996; and, when he f.tiled to pay Ms. Brown's account with Florida Hospiral Radiologists in 1996 when he received the funds to do so. Model Rule 1.l5(b) requires, in pertinent pan, upon receiving funds in which a third person has an interest, mar a lawyer promptly notify the third person, and, except as stated in mis Rule or O[herwisc permitted by law or by agreement with the client, that a lawyer prompcly deliver to [he person any funds that the third person is entitled (O receive. 3. That Mr. Goodman's conduct violated Model Rule 8.4(c) when he advised Ms. Brown during 1996 that the medical bills, related to her accident which occurred in Florida, had been paid, and, when he provided information to Ms. Brown concerning payment of the radiology bill related to the Arkansas accident which was not truthful. Model Rule 8.4(c) requires, in peninent part, that a lawyer not engage in conduct involving dishonesry and misrepresentation. 4. That Mr. Goodman's conduct violated Model Rule 8.4(d) since his failure [0 pay Ms. Brown's medical bills has caused her to have negative information on her credir report. Model Rule 8.4(d) requires that a lawyer not engage in conduct that is prejudicial ro the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme CoUrt Committee on Professional Conduct thar RON L. GOODMAN, Arkansas Bar ID #86070, be, and hereby is, REPRIMANDED for his conduct in this maner.

IJisdpliUill')' .trt ions

NOTICE OF CAUTION WILLIAM D. GOLDMAN Hot Springs, AR February 28, 200 I The formal charges of misconduct upon which this Order is based arose from the complaint of Mary Denham. William D. Goldman an anomey primarily practicing in Hot Springs, Garland Counry, Arkansas was employed by Ms. Denham ro represent her in a post divorce proceeding. Ms. Denham met with Mr. Goldman on March 12, 1999. Mr. Goldman was to reopen Ms. Denham's djvor~ case to review the child support. Mr. Goldman qUoted Ms. Denham a flat fee of $350.00. Ms. Denham paid $200.00 at this meeting and the remaining $150.00 on March 18. 1999. During the next ten months, Ms. Denham attempted to contact Mr. Goldman by telephone and mail regarding the StatuS of her case without success. On January 18, 2000, Mr. Goldman filed Ms. Denham's petition reopening her case. Ms. Denham attempted to contact Mr. Goldman regarding the status of her case without success. As of July 19,2000, Mr. Goldman had not taken any further action. On that date, Ms. Denham employed new counsel. Additionally, she contacted Mr. Goldman's office to obrain a refund of her retainer without success. She was told by Mr. Goldman's receptionist thar Ms. Denham had a court date on August 22, 2000 at 11 :00 a.m. in Judge Cook's courtroom. Ms. Denham appared and was told that the case was not on the docket. She contacted Mr. Goldman and informed him of this fact. Mr. Goldman responded that he had attempted to contact her to tell her of the Ms. change of courtS, to Judge Swiner. Denham denies that Mr. Goldman ever anempted to contact her. Mr. Goldman responded that the requested retainer was $500.00 nOt $350.00. He admits no action was filed until January. 2000. Mr. Goldman States that the clerk made a mistake as to which judge was assigned the case, which lead to the confusion of the COUrt date of August 22, 2000. Mr. Goldman stated thaI he obtained a new court dare for Ms. Denham of November 21, 2000. Upon consideration of tile formal complaint, response herein, and the Arkansas

Model Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Goldman's conduct violated Rule 1.3 of the Arkansas Model Rules of Professional Conduct when he agreed to file Ms. Denham's petition to review her child support order in March, 1999 and did not file the petition until January, 18. 2000. Additionally, after Mr. Goldman filed the January 18, 2000 petition, he F..iled to take any further action in the case. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. 2. That Mr. Goldman's conduct violated Rule 1.4(a) of the Arkansas Model Rules of Professional Conduct when he failed to communicate with his client despite the numerous attempcs made by his client to do so. Model Rule 1.4(a) requires that a lawyer keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that William D. Goldman, Arkansas Bar #81074, be and hereby is CAUTIO ED for his conduct in this matter.

A NOTICE OF REINSTATEME T OF ATIORNEY'S PRlV1LEGE TO PRACTICE LAW STEPHEN E. MORLEY March 2, 200 I The Arkansas Supreme Court Committee on Professional Conduct has carefully considered Stephen E. Morley's petition for reinstatement to the practice of law following his suspension imposed on January I, 200 I. It is the decision of the Committee to grant Mr. Morley's petition. Therefore, the swpension of Mr. Morley's Arkansas law license imposed by the Committee is hereby terminated and he is entitled to engage in the practice oflaw within the State of Arkansas effective March 2, 200 I.

1'.1. II 11'.lfS.llrr tOOl

Tie ,Irkaml Law)u il

In UI'RlOI'iillll Micbael Fanner Mahony

member of the Arkansas and American Bar

Michael Farmet Mahony, 56, died Ftiday, March 23 at Medical Center of South Arkansas in EI Dorado. He was firS[ in his graduating class at the University of

Arkansas Law School in 1968. He practiced law in EI Dorado at Mahony and Yocum

with his father, Emon Mahony, Sr. and his bcmher. Jady. He was the anomer for Union Memorial Hospital and First

adona! Bank. He was a member of Arkansas Bar Association and a past president of the Union County Bar Association.

Active in the community, Mahony served on the Board of Directors of First United

Bancshares, Bancorp South, BH and M Corp. and the EI Dorado Boys Club. He was a member of the EI Dorado Chamber of Commerce, me Arkansas Game and Fish Commission, former president of the Union County Wildlife Association and a former

director of the Medical Center of South

Associations. chairing several committees including the American Bar Association Senior Lavvyers Division Committee on Wills, Probare and Trusts (I 990-92), the Arkansas Bar Association's Tax, Trusts and Estate Planning Comminee and the Probate Law Committee. He was a member of the

of the Arkansas Bar Association for 32 years,

and a member of the Prescott Lodge. He

an Arkansas Bar Foundation FeUow and Sustaining Member. He was a member of the American Judicature Society for more

was a devoted member of Central Baptist Church in Prescott.

than 30 years and a fellow of the American College of Trust and Estate Counsd fOt more than 20 years. He was a member, Paul Harris Fellow and one-time president of the Downtown Little Rock Rocary International. He was co-

Grundfest Oack); four grandchildren; and three grear-grandchildren.

COUSin.

Johnnie Holcomb Johnnie Holcomb, 53, who had herome a spokespetson for Arkansas women's health

Charles L "Chuck" Honey

and breast cancer survivors, died Aprij 26 in

Charles L. "Chuck" Honey of Prescort , 62, passed away on September 28. He artended

University of Arkansas at Little Rock and spent 20 years in investment banking. She

law school at George Washington University in Washington. D.C. was admitted to the Arkansas bar in 1965 and practiced law in

joined Stephens Inc. in 1976 while she was

Lirtle Rock.

"He was one of the best defense anorneys in this area and believed everyone is entitled

to the best legal defense possible, said Rev. Mike Harmon, Honey's friend fot 30 years. Judge Jim Gunter of the Eighth Judicial District

orth Circuit said Honey provided

valuable services to defendants and hdped the poor on many occasions.

Honey was also close to politics accotdiog Leonard L. SCOtt of Little Rock, 86, died on March 25. He received his J.D. degree

to an article in the Nevada Counry Picayune. His brother-in-law, Jimmy

from Harvard University in 1937 and practiced law for 60 years. He was a

Hignight,

MMW.lrk~lr.[I.

Honey is survived by his wife, Betty of Prescon; (wo sons, Marc Oudith) and Chtis; twO grandchildren and a special

Temple B'nai Israd, Little Rock, where he

southwest Arkansas for 35 years.

ne IrwSll LIM}!r

an article in. the Hm Springs

founder and fim president of the Central

daughter. Scottie Tripcony; a sister, Karolyn

Arkansas Rose Society. He was a member of

SCOrt; a son, Leonard SCOrt, Jr. (Mary);

Leonard L Scott

Tennessee and represented many country and western musicians over the years

according

Dorado.

Michael Meadows; and one grandson.

owned a recording company in Nashville,

Sentinel Record. Honey was also a Mason

dder at Fim Presbyterian Church in EI

Nice Williams Mahony; thtee daughrers, Mary Michelle and Martha Anne Mahony, and Shelley Rahaim; twO sons, Joshua and

He was an avid counrry music fan who

House of Ddegates of the Arkansas Bar

Arkansas. He was active as a deacon, trustee and

whom he practiced law, he is survived by another brother. Emon Mahony Jr.; his wife,

Honey served 10 years in the Arkansas

House of Representatives.

Association in the 70's. He was a member

served twice on me Board of Trustees. He was also a Scottish Rite Mason. He is survived by his wife, Mary Simcoe

In addition to his father and brother with

1966, worked for U.S. Senaror J. William Fulbright and for U.S. Rep. Orrin Harris.

She earned a J.D. from the

a law student and was later named a vice president. Her work included exploring potential investment banking opportunities and assisting in development of solutions and customized financing for clients, creating investment banking products, negotiating offerings and completing underwritings in the debt markets. She was an active member of the Arkansas Bar Association serving on the

Mock Ttial, Investment, State and Federal Securities and In House Corporate Counsel Commirt<cs in the early 1990's.

In Memoriam

unsuccessful campaign for Congress in

Continued on Page 56

said

Honey

waged

In lll'mol'iilm The Arkansas Bar Foundation acknowledges with grateftl appreciation the receipt ofmemorial gifts and scholarship contributions given in memory of the following individuals from March 21, 2001 through June 15, 2001: IN MEMORY OF Bo ADAIR

Judge William R. Wilson, Mark Wilson

and Cathi Compton IN MEMoRY OF MAR1AN EpPERSON

Judge John M. Pittman IN MEMORY OF W.

HAMILTON

Doyle and Dana Mayton IN MEMORY OF JOHNNiE HOLCOMB

Judith Gray Judge John and Carolyn Pittman IN MEMORY OF JAMES M. MURPHY

Nancy H. Bailey IN MEMORY OF STEVEN RISHER

Hyden, Miron & Foster, PLLe IN MEMORY OF LEONARD Scorr

Judge Ellen Brandey Oscar Fendler

Justice John A. Fogleman Hyden, Miron & Foster, PLLe Edward and Evelyn Penick IN MEMORY OF JAMES B. SHARP

Arkansas Bar Association Young Lawyers Section W Christopher Barrier"' Joyce Bobbitr*

Justice John and Annis Fogleman Judith Gray'" Donis B. Hamilton"' Henry & Cullen, LLP' Don Hollingsworth William A. Martin"' Marjorie Niblock Edward and Evelyn Penick Judge John M. Pittman Ann Pyle" Dennis and Jane Shackleford"' David Solomon Judge John and Marietta Stroud"' Barbara Tarkington" Judge Henry Woods Dr. Robert and Judge Susan Wright Paul and Marcella Young â&#x20AC;˘ Indicates memorial contribution was designated to the Bogle-Sharp Scholarship endowment, administered by the Arkansas Bar Foundation. IN MEMORY OF BERDICE WARD

Judge William R Wilson and Cathi Compton IN MEMoRY OF BERNARD WHJITSTONE

Justice John A. Fogleman Judith Gray IN MEMORY OF DAVID WILLIAMS, M.D.

Judirh Gray

JAMES BAXTER SHARP James Baxter "Deacon" Sharp. age 80. died at his home in Brinkley on May 29. 200 I. He was the son of the late William Wilson Sharp and the late Carrie Rusher Sharp. He was the senior partner in the law firm of Sharp & Sharp in Brinkley. He served as President of the Arkansas Bar Association in 1971-1972. U. S. District Judge Henry Woods. delivering the eulogy at Sharp's funeral held at the First Baptist Church in Brinkley, said that the life of this Arkansas lawyer had far too many honors and accomplishments to list and that he had probably done more for the Universiry of Arkansas at Fayerreville than any other graduate. While studying at the University he was a member of the Sigma Chi social fraterniry and the Delra Theta Phi legal fraterniry. He graduated from the Law School in 1948. Sharp was a Charter member of the National Development Council of the University and a Founding member of the University of Arkansas Foundation, Inc., serving on its Board for twenty-two years and as its Chairman for six years. He was a long time trustee and chairman of the Jewel Minnis Trust of which the Foundation was the primary beneficiary. During World War II, he served in the Army Air Corps. patrolling off rhe coast of South America in search of German submarines. He was recalled to active duty during the Korean conflict as an officer in the Judge Advocate General 's Corps. Upon discharge with the rank of Captain, he returned ro his beloved Brinkley. Ir was there rhar Sharp devoted much of his rime and effort to the practice of law and the

administration of justice. He was municipal judge of Brinkley from 1956 to 1974, and served as secretary, vice president, and president of the Arkansas Municipal Judges Council. He was a Fellow in the American College of Trust and Estate Council and of the Arkansas and American Bar Foundations. In 1984 he was given the Lawyer-Citizen Award of tbe Arkansas Bar Association. He was a director of the Bank of Brinkley for over 25 years and was chair of the Board of Directors of the Merchants & Planters Bank in C 1arenclon for 20 years. He was President of the Brinkley Industrial Development Co. for 25 years and served as chair of the Brinkley Chamber of Commerce Industrial Committee. Under his leadership several major corporations developed manufacturing plants in Brinkley. He was a licensed realtor and insurance agent. He served on the Board of Trustees and was teacher of the men's Sunday School Class at the First Baptist Church in Brinkley for over 50 years. In 1998. rhe Brinkley Chamber of Commerce selected him as its Citizen of the Year. In 1948 he married Ann McShane Luckinbill ofFon Smith whom he had mer at the University. They have three children: William Wilson Sharp of Albuquerque. New Mexico; James Baxter Sharp III of Brinkley; and Madeleine Sharp-Smith of Baltimore, Maryland. Sharp is also survived by his sister. Jenny V. Moore of Clarendon and several grandchildren and great grandchildren. "Deacon" Sharp remained an interested and involved member of the Arkansas Bar Association until he became incapacitated by his final illness. He will be remembered as a lawyer with firm opinions who would fighr hard for those causes he believed in. Contemporaries who had differing opinions remained his best friends. He was the true advocate - one who was faithful to his own philosophy and beliefs. bur one who could admit defeat with a smile and accept victory with humiliry. He enjoyed order and decorum. His family and his community came first, but he was generous to many others who were less fortunate. He was one of the best of those whose age and experiences place them in "the greatest generation. "

101. 16 NI.I/S.ller 2091

The .lrku!lJ La~}er

In Memoriam

Book Review

Cominued From Page 54

Continued From Page 17

A Susan G. Komen Foundation board member since the mid-1990's, Holcomb became a spokesperson for Arkansas women's health and breast cancer survivors. She Jed the Governor's Breast Cancer Control Advisory Board from 1998- 2001, and was awarded the Josena Wilkins Breast Cancer Award. In a 1999 edicorial for a statewide business publication. Holcomb wrote, "I am a fighter and a breast cancer survivor. Much of the ammunition I've used to combat cancer these past few years came from my Southern upbringing and the lessons I've learned in the investment business." Holcomb was recognized as one of [he Top 100 Women in Arkansas in 1995 and 1996 and became a judge in that awards program. She was a founding or charter member of the Imernarional Women's Forum - Arkansas Chapter, the University of Arkansas Medical System Community Advisory Council and the Worthen Bank Professional Women's Advisory Board. She served on four committees for the University of Arkansas ar Litde Rock and was a former president of the erwork for Executive Women. She also served on the boards of the Centers for Youth and Families, the Stephens YWCA, the Arkansas Community Foundation, Nonprofit Resources and the Old State House.

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