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VVEST w 105588/6-02
PUBUSHER A.rkansas Bar AssorciIIhon
The Arkansas
Phone,(501)37"~
Fax: (501)375-4901 Homepage: www.arkbar.com E-Mail: aconaway@arkbar.com GUEST EDITOR
O. Millo" Fille 11 EDITOR AIIllt
COllaway
EDITORIAL BOARD Stuart P. Miller, Chair Judge Wiley A. Branton. Jr. O. Millon Fine IJ Morton Gitelman J. Leon Holmes Christopher Travis Brian Anthony Vandiver David H. Williams Jacqueline S. Wright
awer Vol. 37,
o. 4
features Attorney Ad Litem: A Different Kind of Practice Jacqueline S. Wright
OFFICERS President H. Murray Oaycomb
8
Bo..ud of Governors Chair James D. Sprott President-Elect Thomas A. Daily
Jurisdiction Counts in Custody Matters
Immediate Past President S.. ndr.. Wilson Cherry Secretary-Treasurer William A. Martin
14
Marcia McIvor
Parliamentarian Jeannette Denham Young Lawyers Section Chair Cindy Thyer Executive Director Don Hollingsworth Associate Executive Director Judith Gray
BOA.RD OF GOVERNORS M. Stephen Bingham Anthony W. Black Judge Wiley A. Branton. Jr. F. Thomas Curry Elizabeth Danielson Boyce R. Davis Lance B. Carner Dave Wisdom Harrod Robert "Skip" Henry Gwendolyn D. Hodge Jim LJulian Philip E. Kaplan Sean T. Keith Marie-Bernarde Miller Chalk S. Mitchell w. Frank Morledge Donna C. Pettus Terry M. Poynter James M. Simpson, Jr. Eddie H. Walker, Jr. Robert E. Young
Parental Alienation Syndrome and Alienated Children: Getting it Wrong in Child Custody Cases Carol S. Bruch
general It's Time to Make Jury Instructions Understandable Bettina E. Brownstein
LIAISON MEMBERS Judge David Burnett Steve T. Shults Teresa M. Wmeland Carolyn B. Witherspoon 11It ArbllMf lAwyl'r (USPS 5%-(40) IS published quarterly by tnt Atbnsas 8.lr AssocUollon. Periodicals po&tIge p;lid al lillie Rock. Arbnsu. POSTMASTER. send addf'ell5 dwlga to lJIt AtbJlSaS lA"¥", 400 West Mal"ktwn. lillie Rock, Arkansas 72201. Subscription prx"e to non-members or the Arkansas 6;lr AssodOltion 525.00 per year. Any opinion expressed herein is thllt of the author. and notl1l"CeSNrily that of the Arbns<ls Bar Assodatioo or nIt Arb"silI! uuvyrr. Contributions to nIt Ark'lIrsa.s ulTvytr are welcolTlC and should be sent in two copies to EDITOR. TItt Arka"S4l5 !.,Qwytr, 400 West Markham, Little
Rock. Arkar$s 72201. All inquiries regarding ad\·ertising should besenllo Editor. ThtArUM<U uwyrr, attntabo\-e addrt'S&. Copynght 2002. Arbnsas 8.lr Association. All nghlS n'servect
19
•... [Jury] instructions end up being written on a difficulty level equal to the Harvard Business Review-when they should be on a par with Sports Illustrated. "
- Bettina E. Brownstein Contents Continued on Page 2
24
The Arkansas
awer Vol. 37, No.4
in this issue Significant Decisions of the Supreme Court of Arkansas
28
Arkansas Lawyer Receives Award
31
Judicial Advisory Opinions
32
CLE Calendar
33
columns
Lawyer Disciplinary Actions
34
Murray Claycomb
In Memoriam
40
Don Hollingsworth
Classified Advertising/Ad Index
44
President's Report Executive Director's Report YLS Section Report
3
5 13
Cindy Thyer
Ciiii J Arkansas Bar Association
400 IV. Markham Lillie Rock, Arkansas 72201
HOUSE OF DELEGATES Delegate District 1·5E: Ray AlI~n Goodwin Delegate District 2-5E: Katharine C. Wilson Delegate District )-SE: Paul D. Waddell, ~nnis Zolper.JdTPut}ftr Delegate District 4-5E: Bill E. Bracq,Jr. Delegate District 5-5E: Kent J. Rubens Delegate District 6-5E: Christopher M. Morl«tge Delegate District 7-5E: Buck Gibson Delegate District B-SE: Howard L Marrin Delegate District 9-SE: Jim P:u A()W(:rs Delegate District 10-5E: D.vid L Sims, Anthony A.Hilliard Delegate District II-SE: Richard L Roper Delegate District 12-5E: James A. Hamilton Delegate District 13-SE: Brian H. Ratcliff, Robin J. Carroll Delegate District 14-5E: ChriSlie Adams. M:mhew Kimmd Delegate District IS-Sf: Todd M. Turner, Bl'}':ln T. McKinney Delegate District 16·SE: John T. Vines, Ja.nie M. Evirn Delegate District 17-SE: James Ralph Jackson
Delegate District I·NW: Hardy W. Croxton, Jr., George R. Spence, Edwin N. McClure, Lisa L. Kelley Delegate District 2·NW: Shannon L Fant, Raymond L iblock, STeven S. Zeg2, Tim Snivdy, M:mhew R. Ourren, Chris R. Reed. April M. Rre, Crisci 8e:lumom, D:avid J. Whinker, Mich:ad J. Hodson Delegate District J-NW: Shannon L 8lan, limQ[hy C. Sharum, Niki T. Cung, Jason A. Maninez, James O. Cox, Ikn H. Shipley Delegate District 4-NW: Danid B. Thrailkill Delegate District 5-NW: Sc:C'\'e B. Davis Delegate District 6-NW: David L Eddy, John T. T:num II Delegate District 7·NW: Danny M. Rasmusse.n. Rhonda K. Wood Delegate District 8-NW: Ted Sanders Delegate District I-e: harles L Schlumberger. Don K. Barnes, EJiubeth A. Thomas SmiTh, Harry A. Light. Mdva J. Harmon, John C. Wade, Jdf Broadw:,uer, Mara:lla J. Taylor, Reed R. Edwards, M. Stephen Bingham, John C. Wyvill, Causley Edwards, Br.l;d Hendricks, David W. Srerling, Parrick Harris, Brenda N. S[allings, M:ark H. Allison. David Raupp, Rick Rams:ay, Patrick D. Wilson, Valerie Kelly, Gregory L Crow, \'<lilliam C. Mann. Lacy Kennedy, H:arold J. EY:lns, Colene D. Honol'2ble, C. Tad Bohannon, Jerry Larkowski, Amy Lee. Stewart, Danrelle J. Walker Law Student Representatives: Mart Lindsey, University of Arkansas School of Law; Joel G. Hargis, UALR William H. Bo.....en School of Law
2 The Arkansas Lawyer
www.arkbar.com
President's Report
Wait! Read This, First -
When you are considering a legal research service! by Murray Claycomb The Arkansas Bar Association will soon provide you free legal research on the Internee. Imagine having access to legal research on the Internet that you can reach by logging on from anywhere-at no cost to you. Is mat appealing? It's about to happen. In abom four months, members of the Arkansas Bar Association will have that advantage through Arkansas Versus Law. For over a year OUf Association has been exploring the options for providing electronic legaJ research to members, free of charge. Lasr fall a Task Force was appointed by then Presidenr Cherry ro pursue the matter in depth. The Task Force invited
Lexis-Nexis. Thomson-Wen,
LOlSlaw,
Casemaker and VcrsusLaw to make presentations about their services and co make proposals about furnishing their services to the Arkansas Bar Association. (Casemaker is an electronic legal research service organized by the Ohio Bar Association.) With the exception of one company which chose not co participate, these providers furnished passwords to members of rhe Task Force ro rry our and srudy each service for 30 days. On tWO separate days, presentations were made by the four They also answered many providers. questions. At a later meeting, the Task Force heard the reports of those members who had made more in-depth studies and comparisons. One provider could nor offer the producr desired by the Association. Another provider's proposal was too expensive. Casemaker and VersusLaw were both in the range rhe Task Force considered feasible. After considerable discussion, the Task Force concluded for several reasons that VersusLaw was the best overall value for Arkansas lawyers. For example, VersusLaw had court decisions from all state and federal appellate courts and was willing to
include new research components for Arkansas lawyers. Unlike the other providers, Versus Law did not require that the Arkansas Bar Association use it exclusively. The Association has the opportunity to contract with other service companies to provide add-on enhancements that could supplement VersusLaw for those members who have the need for broader services. The supplemental service could be acquired without the expense of the basic service. (Our Association has a current member benefit with Lexis-NeJcis, and members will receive more information on enhancemems in the near future.) A subcomminee of the Task Force was then appointed to negotiate and be involved in drafting an acceptable Letter of Intent with VetsusLaw. Their efforts were soon successful. A contract was then negotiated and agreed upon subject to approval by rhe Board of Governors of rhe Association and the officials of Versus Law. The conrracr draft was accepred by both parries and executed on July 24, 2002. What Arkansas VersusLaw will provide is a fully searchable, online law library including: (a) Court decisions from the appellate COUrtS in all 50 states; (b) Decisions from all federal appellate courtS; (c) Decisions from various federal district courts (including Arkansas Federal District Court decisions); (d) The srarures from all 50 srares; (e) Any other producr which is subsequently added to VersusLaw's basic fulI-text legal research service. Versus Law will improve its product by: • increasing its coverage of Arkansas appellate courts decisions back co the year 1900; • including me official legal citarions and official pagination of the individual cases; and
• including Arkansas Couer Rules. VersusLaw plam to have added all rhe required coverage to irs database within six months. When available, Arkansas Versus Law will be on the Arkansas Bar Association website and will be reached by a link to Versus Link by Arkansas Bar Association members only. Members will authelHicare their membership by using their Association user name and password. (Members will secure their password on the Association's redesigned website at www.arkbar.coll1. The new website is now operational or will be shordy.) In addition VersusLaw has commirted to provide quality cuStomer service supporr for quesrions ranging from technical issues to substanrive legal research questions five days a week from 7:00 AM umil 5:00 PM (PST) on regular business days. Also, VersusLaw will provide some reference material. Its personnel will be available to arrend the annual meeting of the Association and one other evenr of the Association each year to conduct training sessions. VersusLawagreed to furnish its service in Arkansas ro the Arkansas Bar Association exclusive of any other Arkansas-based organization. The term of the conrract is four years with five one-year renewal options exercisable by the Association. There are other certain Arkansas practice enhancemenrs thar VersusLaw has agreed to provide if either VersusLaw or the Association is able to satisfy copyright issues. If those materials can be included, they will be very valuable add.itions for Arkansas Bar Association members. This service will obviously be a significant money saving advantage for our members. It should also help to improve the quality of legaj research in places where such a resource is nm now available.
Vol. 37 No. 4/Fall 2002
President's Report Continued on page 44 TI,e Arkansas La".yer
3
Executive Director's Report
New Legal Career Center by Don Hollingsworth email: dhollingsworth@arkbar.com Presidenr Murray Claycomb imfoduces in his column Arkansas VersusLaw. This outstanding member benefit will be available on www.arkbar.col11 in early 2003. See Murray's column for the details on this free, on-line legal research for Association members. There are ocher new features coming to www.arkbar.com as our website IS redesigned. including a Member Direccocy, rhe new Legislative Advocacy Network, ethics resources, and increased basic information for attorneys and the general public. A new resource already on the website is the Legal Career Cenrer. Over [\\'o years ago the Website Oversire Commirree of our Association identified new produces and member services which are needed for me website. One desired service was the ability to POSt legally related job announcements on the website. After considering available options, the Website Oversite Commjrree and the Board of Governors decided to partner with Legalstaff.com to provide this service. I encourage employers and recruiters, and legal professionals desiring a job change, to take a look at the new Legal Career Center on www.arkbar.com. Quite simply, we believe this provides our members with the most powerful and effective legal career center available. One may search by position, years of experience, areas of law, location and more. In summary, the Legal Career Center is a centralized location where employers, lawyers, paralegals and suppOrt staff meet. The national network of the Legal Career Center includes more than 60 bar associations and web portal sites. Thus, job postings on the Center arc visible in Arkansas and throughout the national network. Legal professionals can submit a
"confidential" resume online and remain completely anonymous to prospective employers. The individual chooses when to release her or his full resume, giving total control to the job seeker. The Legal Career Center also gives legal professionals the tools to market skills and abilities to prospective employers. For employers and recruiters, there are no placement fees, no contracts, no gimmicks. At a much lower cost than an ad in the local paper, law firms and other legal departmems can POSt their jobs online for a nominal fee. As indicated above, these job annoul1cemenrs are visible in Arkansas and throughout the nationwide nerwork. Employers may also put their company profile on the Legal Career Center network. This basic membership is free with the company profile staying active until the employer removes it. Excluding job postings, all employer services are free and there is no further obligarion after becoming a member. One concern of our Board of Governors was the existence of effective privacy and non-discrimination policies. These policies are in place and can be found on the Legal Career Ccnrer website. We believe it is a positive benefi[ for our members that [his parmership involves so many orhcr bar associa[ions around the cOllnrry, including Mississippi, Louisiana, Illinois, District of Columbia, North Carolina, Pennsylvania, Maryland, Nebraska, South Carolina, Oregon, Georgia and Texas. Every week morc bar associations join the network. Participa[ing legal organizations also include several paralegal organizations, the American Corporate Counsel Association and various municipal and speciaJiry bar associariolls. The network also includes 24 legal portals. We hope yOll will give the Legal Career Center a cry. _
Employers may also put their company profile on the Legal Career Center network. This basic membership is free with the company profile staying active until the employer removes it. Excluding job postings, all employer services are free and there is no further obligation after becoming a member.
MEETING NOTICES Board of Governors Decem ber 6-7, 2002
House of Delegates January 25, 2003
House of Delegates June 14,2003
Vol. 37 No. 4/Fall 2002
TI,e Arkansas lawyer
5
The POWER of ~
Practice Handbooks Ha~ it
Ytmr \Vay! CusTomize YOllr Library ofAssociation Handbooks to Suit Vimr Ptrsollal Sryk
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Law, Handling Appeals or Real Esrare Tide Standards in Arkansas. OR Choose the Arkansas Form Book, Oebme/Creditor or Probate Law Handbooks in word processing formaL
Legal Career Center The Arkansas Bar Association is proud to ofter the area's largest online legal career center - the centralized location where employers, la\vyers and suppOrt smff meet. Search by position, years of experience, areas of law, location and more!
Go to www.arkbar.com and click on the
LegaJ Career Center.
OR Opr for the simpliciry of a CD ROM containing anyone or any combination of the following: Arkansas Form Book,
Legal professionals desiring a job change can submit their resume
Debror/Crediror. Probate Law, Handling Appeals in Arkansas or Real Estate lide Standards in Arkansas. The handbooks are now also available when one subscribes to (he Arkansas Secondary Law Menu from LexisNexisâ&#x201E;˘ at www.lexis.com. To order call 501-375-4606 or 800-609-5668 or em';] rhicks@arkbar.com. Or visit our website at www.arkbarcom for further information.
online, on a confidemial basis if desired.
Employers can recruit top legal professionals at a much lower cOSt than an ad in the local paper.
~ou r Membersh I p •
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Ih~
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Visit www.Iexis.com or call
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Attorney Ad Litem: A Different
What does a real attorney ad litem do? I attended court with an ad litem ... and will share with you what I learned.
I<ind of Practice
T does.
he
popular
TV
show,
by Jacqueline S. Wright
The
Guardtan, peaked my curiosity about what a real anorney ad litem
I attended coun with an ad litem,
talked with other lawyers and judges involved in the Arkansas program and did a linle research.
In this article I will share
with you what I learned. There are twO separate bur related programs for ad lirems. One is more visible because it involves custody of children in
dispured domestic rclations cases, which are handled in open courr. The mher involves ad (items for dependenr and neglected children, and also ad lircms for indigent parents in dependency-neglect cases. These arc nor so visible because the hearings are in
closed counrooms and the records are sealed. They are essenrially secret, so as to protect the privacy of the child. These two
Above: Treeca Dyer shares information with the mother of her client.
rypes of cases are closely relared bur have
explored as the article develops.
different characterisdcs.
These will be
About the Author Jacqueline S. Wright was the Librarian ar the Arkansas Supreme Court Library from 1979 to 1998. She has served on
The ArkansfIS Lawyer Edirorial Board since its mcepnon m 1997. Since she retired she writes articles for legal publications and other publications and occasionally works on appeals {Q the Arkansas Supreme Court and Court of Appeals.
something she wanted to do because "I feel
On a hot July day, I went ro Treeca Dyer's
that I can really make a difference
{Q
these
office to go with her to court where she was
children." Ms. Dyer is attorney ad litem for
scheduled to represent several of her
30 families that make up 45 to 50 children
juvenile c1iems. On rhe way to court, Dyer
who are in the juvenile court system.
raid me that she has been inrerested in
When we arrived at the courthouse, Ms.
children and their welfare since she was a
Dyer rook me ro Circuit Judge Lance
teenager. When she was in high school, she
Hanshaw's office. He has responsibiliry for
spent two weeks of each summer as a
the juvenile docket in Lonoke Counry. She
volunteer at a camp for underprivileged
introduced me and explained
children.
was
She fell in love with the kids.
wrltlng
this
article
{Q
him that I
and
asked
They were so needy and "camp was such a
permission for me to observe the hearings in
big deal to them, they just soaked it up."
the courtroom. She told him that I am a
After that she was a volunreer leader for
member of the bar and understand the
Young Life and taught Sunday school.
necessity of confidentiality for these hearings.
"Kids are something I have always been
Judge Hanshaw graciously welcomed me and
interested in." When the ad litem program
gave me permission to attend the hearings
was
announced,
she
knew
that was
and take notes and pictures.
After we entered the spacious courtroom, Dyer
inrroduced
me
ro
Ronald
appropriate time, her attorney ad litem, Ms.
"Your troubles go with you wherever you
Dyer, stood and told the court that she
gO."l
Mclaughlin, attorney for the Office of
agreed with the current disposition of the
Chief Counsel at rhe Arkansas Departmenr
case, and that she believed thar in the best
of Human Services. He was accompanied
interest of her client, she should remain wirh the assigned foster home. However,
by D.H.S. social workers.
I was also
ADVOCACY [S [N THE BEST INTEREST OF THE CH[LD This drama illustrates a critical differcnce
introduced to Ms. Melissa Greene, a CASA
because the client had some things she
between representation of a minor as
volunteer who would later testify in one of
wanted to share wirh rhe court, she was
the cases. The CASA volunteets are an impottam
calling her co testify. The courtroom was
attorney ad litem, and that of arrorneyclient. The ad litem's function is ro
cleared of everyone except the lawyers and
advocate what is in dle bcst inrcrest of the
facet of the juvenile justice system. They are not appointed in all of the cases, but when
other professionals. Family and foster family were ushered our at Ms. Dyer's
child. Because the best inrerest of rhe child is nor always what the child wishes, there
they are they play an important role. They get to know the child and the child's
requesr. Under
questions
allowing the court to know whar the
circumstances, the parents and foster
proffeted by Ms. Dyer, the teenager explained that she is an arhlete and wishes
difference is, as Ms. Dyer did so skillfully in
parents, and are encouraged to interview and assess anyone who has an impact on the well-being of the child. They are the eyes
She explai ned furrher that there were
lawyer to represent the child in a traditional
Five cases were heard the day I attended
problcms with her foster family. She was made to perform chores that others were
anorney-c1iem relationship. This conflicr has been the subject of numerous law
In only two was there a lawyer co
nor, and she was generally unhappy there.
journal articles. 2 The Arkansas Supreme
represent anyone other than D.H.S. or the child. One case involved an attractive, well-
She felr she was made to pay for time at the
Court by Adminisrrative Order Number IS
batting cage that the state should pay for. All of her babysitting money went for
simplified the conflicr by providing that "... if the child's wishes differ from the ad litem's
long, curly auburn hair and peaches and
athletic equipment and practice.
This
determinarion of the child's best inrcresr,
cream complexion. The child was a ward of
would not be so, she said, if she were
the ad litem shall communicatc thc child's wishes to the court."
and ears of the court. court.
dressed teenaged gitl.
She was tall, with
to
can be a conAicr. carefully
crafted
this case. In some situations this may require the court to appoinr an additional
be able to live with het softball coach.
the state because her mother was involved
allowed
with controlled substances. At sixteen the
anomey for D.H.S. stated that there was
plan was for her to be supported by the
money to pay for her softball expenses, but
1'0
live with her coach.
The
This is resolved by
AD LITEM-CH[LD RELATIONSH[P
juvenile system until she reaches her
that she was required to perform the
Another way the practice of the ad litem
majority. She was living with a therapeutic fostCt family that had several othet children.
assigned chores at her foster home before it could be paid. Judge Hanshaw ordered
is different from representation of an adulr
The hearing went smoothly. It began as a
D.H.S. to make an evaluation of the coach's
Gay said that when she was ad lirem for a
homc and set the case for a hearing on the
child in a domesric relarions custody
martel'. He also admonished the teenager,
dispute, she mighr rake the child to
periodic check-up, for the judge to be sure everything was as it should be. At an
client is the personal relationship. Donna
, Summary of Academic & Pl'Ofessio"af Experie"ce Registered Professional Engineer in 3 states.
9 )'car.i of experience as President of large dislribUlOr specializing in all l)-pe5
...
of safety ~uipment, major emphasis on metal (orming and stamping.
II )'cars of experience as President of company Invoh"ed in rep:l.lr and rewinding of c1ecuic
moton. :md manuf-aeturc. sales, installation and servicing of e1earical control panels (or Indl'-'ilry. ...
14 rears of experience with General Electric Co. in engineering and industrial $Ik~. Earnt.'d BS路 Electrical Engineering In 1947. Compleu:: curriculum vitae :md refcrc.ncc.."S on request.
Vol. 37 No. 4/Fall 2002
TI,e Arkansas la\'Yer
9
McDonald's co have an imerview in a relaxed atmosphere. DeeNita Moak had an especially challenging cliem recently in a domestic relations cusrody case. She well( co the child's home co imerview her client. The father was there, bur the child wouJd nOt come out of her bedroom. Ms. Moak
welH in the bedroom to encourage her ro make friends. It took 40 minutes and a lor of game playing before the child would come our from under the covers.
CONFIDENTIALITY It takes a lot of work to gain the
confidence of these clients, yet the relationship is not 'lconfidenriaJ."3 This can sometimes be tricky. The ad litem must explain CO the client that confidences cannOt aJways be kept secret. Sometimes they must be shared with the court, because the court needs this informatjon co make decisions that are in the best interest of the child. Treeca Dyer always rells her kids that if she needs co share a secret with the judge, she will let them know when she will do this, and she will tell them why she believes it must be done.
QUALIFICATIONS OF AD LITEMS These are just some of the ways that representation of a child differs from representation of an adult. The training for these attorneys, therefore, must aJso be specialized. The Administrative Office of the Courts, which handles all of the administrative details, aJso provides this speciaJized training. 4 It requires ten hours of training to qualify as an attorney ad litem, then four hours a year after that to remain qualified. 5 The subjects of this training include not only the expected substantive and procedural law and ethics, bur aJso include child development, the dynamics of abuse and neglect, and family dynamics. The family dynamics category may include subsrance abuse, domestic
Jack Davis
Sid McCollum
Bob Hornberger
Frank Hamlin
INC 500 President Clinton Avenue, Museum Center, River Level Little Rock, AR 7220 I 501-376-2121 1104 South Walton Blvd., Suite 8, Bentonville, AR 72712 479-271-2237 423 Rogers Avenue, Suite 101, Fort Smith, AR 72902 479-783-1776
10 TI1C Arkansas lawycr WM'V.ar1<barcom
violence and mental health Issues. Additional training may include such copies as grief and atrachmem, and resources and services. The same type of trajning is required of attorneys ad litem in domestic relations cases and guardianship cases where cusrody is in dispute. 6 A recent training arrended by Ms. Dyer included family dynamics, child development, the dynamics of sex abuse, and menta] heaJth issues. In addjtion, they addressed problems of attention deficit disorder and the medications used for ADD and oppositional defiant problems. Another subject explained was ID.E.A., the InruviduaJs with Disability Educarion Acr. Dyer explained that "this lUnd of training is good as ir makes one more sensitive ro issues of rhe lUds involved." Ad litem work for dependent and
neglected children requires more man client conferences, the usual investigarion, and
ad litems are under contract for a definite number of cases. Treeca Dyer's comract is
ro this child or children.' Anmher benefir is the ad lirem can suggest counseling."
appearance in court. 7 The responsibilities these attorneys have is forecast in the clinical qualifications. To qualifY as an atÂŁOrney ad litem for a child or a parent in dependency-neglect cases, the anorney must second chair in five types of hearings: Emergency, Adj ud ica rionl Disposition, Review, Permanency Planning, and Terminarion of Parental Rights. In addition there are period ic staffings and working sessions wirh other child and family services The child not only needs agencies. someone to speak for her but needs someone to speak for her who knows me system and what support services are out there that may be made available ÂŁ0 the child and the child's f.unily, and when chere is a dispure as to whether these services should be made available, ro be able ro bring the issue to the attention of the juvenile judge at an appropriate hearing. There are \54 lawyers qualified ro be ad litems in domestic relarions custody cases and 134 for dependency-neglect cases in juvenile court. Of rhose 134, only 92 are acrive. A rotal of 49 (out of 115) judges in Arkansas appoil1[ed anorney ad litems to represent children in domestic relations custody cases. That represents 22 out of 28 judicial circuirs.
for 30 cases, and for char she is paid $2,000 a month. That averages our to $800.00 a year for each case. This is che standard
In domestic relations custody cases, the trial judge must constamly try to figure OUt what is in the best interest of the child, yet the judge does nor have the power to invesrigate or to discover facts that would hdp make this decision. The judge is therefore lefr with only the information provided by each of the batding parties and for many reasons rhat may not be complere. In Pierce v. Pierce l3 rhe Court of Appeals remanded a custody case with instructions to the trial judge to appoint an attorney ad litem so that a complete picture of the child's situation could be considered.
FEES FOR AD L1TEMS Fees for the domesric relations cusrody ad litems may be paid by the Administrative Office of the CourtS, alchough the judge may require the parties to pay all or a part of the expenses of anorneys ad litem, according ro their ability ro pay.s The fees are paid at a maximum rate of $90 an hour. The rotal fee is capped ar $\ ,250 per case. Out-of-pocket expenses may be reimbursed, bur are included in the cap.9 Because of mis limitation some lawyers have suffered financially in lengchy cases. The ad lirem is appointed for the duration of the case and musr follow ir ro the end. Judge Mary McGowan said that even with the assistance of exceptional lawyers who are willing to serve, "rhere are some cases that won't go away, and some ad lirems have been badly burned." Most of the dependency-neglect
amount paid for these cases. HOW USEFUL IS THE AD LITEM? With all of this special training and funding, just what good is it to have one more la.. .vyer in the courtroom? The answer is easy in dependency and neglecr cases. The attorney ad litem plays an essential role. [n those cases. the parem obviously can nor advocate for the child, and this leaves the child at the mercy of a not always sympathetic or supportive Department of Human Services. 1O For domestic relations cusrody cases, especially in high-conflict cases. dispures have been seen as a form of child abuse and maltreatment. II Judges who have used the services of attorneys ad litem say thar ir does a lor of good. Judge Chester T. Harhur, of the Court of Common Pleas in Scranton, Pa., who sits as a Family Court judge, stated: "Without relevant facts. court orders may unwittingly compound children's problems. Thus, a judge often needs more than the standard litigation process to be confidenr thar the COUCt order protects children and provides for their best interest. "12
CONCLUSIO It is unfortunate when children have to become involved in the courr system, either as dependent-neglected or as objects of domestic relations custOdy batrles. It is imporrant rhat every efforr be made to give each and every child the best chance possible for a good life. Our attorneys ad litem are dedicated to making that possible. They are ro be commended. _ ENDNOTES I This srory. although essentially true. has been fictionalized to proteer the identity of rhe child. 2 ote, Assisting Minors Suking Abortions
11/
judicial
Bypass
Some of rhe Arkansas judges use ad litems
Proceedings: A Guardimll1d Litem Is No
on a regular basis. Circuit Judge Mary McGowan said that this is because it "gives the judge peace of mind that the child's interests are represented." She conrinued to explain thar me additionallawyer does not make a custody case more heated and difficult. On the contrary. it makes the parents realize that the child's needs must be considered. The presence of the ad litem
SubJtitllf' for an Attomt]. 55 Vand. L. Rev. 581 (2002); Rebecca H. Heam, GUl1rdimlS Ad Litem in Child AbllJe alld N<gkct Proudings: CMrifjing rh, Roles to Improve EffictiveneH, 27
makes the parents realize that it is nor just ahour "me and him." Judge McGowan said that she "cannor think of a case in which they were nor a tremendous help." Donna Gay explained char "A lor of domesric relarions lawyers tell clients on the front end that they should nOt do anything to hurt the children. The ad lirem can say 'you need ro srop and look ar whar you are doing
Lium uam, 71 N. Dak. L. Rev. 988
Vol. 37
Family L. Q., 327 (1993); Tara Lea Muhlhauser and Douglas D. Knowlron, Tlu"Best Imerest 'Ham" Exploring til' Conupr ofa Gllardian Ad
(1995). 3 Administrative Order umber 15 Atrorney Qualifications and Standards. Sec. 2. j. "Anorney-diem or any other privilege shall nor prevent the ad lirem from sharing all information
Ad Litem Continued on page 44 o. 4/Fall 2002
n,e Arkansas La"yer
II
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" -r~'
..........', J ' ,â&#x20AC;˘ .
Looking forward to a new year!!
\<.
't by Cindy Thyer I am very honored and privileged to Our goals through these projects continue to include service to the community have the opponuniry ro serve as the Chair through educational handbooks (e.g., consumer law and caregivers' handbooks), of me Young Lawyers Section this year. Especially exciting for me are the plans we disaster relief assistance, Law Day activities and the YLS Literacy Project. are making to increase me involvement of admittees, which include brochures and We are also looking forward ro some all Young Lawyers Section members in information pieces highlighting the positive changes in Law Day activities. order co better educate our members and benefits of involvement in YLS and in the Last year's Law Day was a huge success. our communities and to expand on our Arkansas Bar Association. These packets On May I, 2002, lawyers and legal existing public service projects. will be distributed to young lawyers at each support professionals traveled ro schools At the YLS Executive Council Retreat, swearing-in ceremony, and literature will across the state and spoke about various which was held in Little Rock August 23- also be made available at the law schools topics relating to our freedom as 24, 2002, executive council members, and the annual Bridging the Gap eLK Americans. ext year, in light of increasing committee chairs and Judith Gray, our One of the main purposes for joining voter apathy, we are hoping to focus on Arkansas Bar Association liaison, YLS is to participate in one of our many voters' rights and, under the guidance of brainscormed with Jay Ray, an ABA worthwhile service projects. Our goals Arkansas Bar Association President Murray Affiliate Assistance Team member who through these projects continue to include Claycomb, we hope to participate in the agreed to assist in the creation of long- and service to rhe communiry through Dialogue on Freedom. The idea for the shorr-term goals for YLS fot the purpose of educational handbooks (e.g., consumer Dialogue on Freedom came from United sustaining the Section through annual law and caregivers' handbooks), disaster States Supreme Court Justice Anthony administration changes. The Council relief assistance, Law Day activities and the Kennedy in response to the events of agreed ro shift some immediate emphasis YLS Literacy Project. Our most recent September 11. Jusrice Kennedy, to recruiting more active members by revision of the Statute of Limitations Massachusetts Senator Edward Kennedy demonstrating how young lawyers can handbook is due to be published soon, and and Boston Bar Association members directly benefit from involvement in YlS we are hoping to begin a criminal arranged a program with area srudents (e.g.â&#x20AC;˘ participation and/or use of YLS sentencing handbook at the first of next during Law Week 2002 to discuss materials such as Statute of Limitations year. American politics, values and freedoms. and criminal senrencing handbooks) and I am really excited about the YLS The American Bar Association is now offering opportunities for young lawyers to Literacy Project. This project was a encouraging state and local bar associations become actively involved in their brainchild of Mark Hodge, and he began to implement these programs and ideas communities through participation in YLS the project by recruiting legal professionals through their respective Law Week service projects. activities. to read to students at Mitchell Elementary We recognize that to recruit these School. ot only were the students' These projeccs serve as JUSt a taste of members, we have co better educate law reading skills enhanced as a result of the what we are hoping ro accomplish in the students regarding YLS prior CO the time interaction, but their self-esteem improved coming year. I hope that all of you will they actually embark upon a law practice. because of the regular interaction between encourage any young lawyers you know to We plan to conrinue making presentations them and the volunteers they saw on a become actively involved in YLS, not only to first-year law students regarding YLS. regular basis. This project is now being for their personal enrichment, but also to In addition, several of our members are implemented in Jonesboro, Fore Smith and contribute ro their respective communities already preparing packets for new bar Texarkana. through these worthwhile projects. _
Vol. 37 No. 4/Fall 2002
n,e Arkansas Lawyer
13
In th is, the 21st centu ry, an attorney bringing or
Jurisdiction Counts
defending a case involving child custody needs a
•
Custody Matters
working knowledge of applicable state and federal law just to get into court. by Marcia McIvor
T
jurisdicrion
here may have been
a
twO
nrne
differenr srares;
one
when a lawyer
by
stare
could
claim jurisdiction as
raking a custody case
could charge into court
rhe home state, while
waving
a second state could
a
banner
claim
inscribed "do it in rhe
jurisdiction
under
best interest of the child"
significant
connections.
and little else. If there ever
To
e1iminare rhat problem
was such a time, that time
the
has gone, shrouded in the mists.
UCCjEA
prioritizes
home srare jurisdiction.
In this, the 21sr cemury, an anomey bringing or defending a case involving child
The
PKPA, adopted by Congress in 1980, requires states ro give full faith and credir ro
custody needs a working knowledge of
applicable sure and federal law juSt to get into court. A case involving child custody
child custody determinations ha5 subject matcer jurisdiction, which is
by
governed by two inceracting state and
compliance with the standards of the act.
About the Author
federal sr3rutes: rhe Uniform Child Custody
In cases where a conflicr arises under srate
Jurisdiction Enforcement Act, (UCCjEA) codified at AJ-k. Code Ann. §§ 9-19-10 I ro
law, the federal law preempts.
Marcia McIvor is retired from the
9-19-401 (Rep!. 2002), and the Parental Kidnapping Prevention Act, (PKPA), 28
1. To wbat kinds of cam do tbe UCCjEA and the PKPA apply?
has as a threshold issue whether the court
faculty of the University of Arkansas School of Law, where she was Direcro[
of Clinical Legal Education. She has been an activist in the area of children and the law, and served twO terms as a member of the Joint Inrerim legis-
lative Commirree on Children and Youth, which revised juvenile law in Arkansas.
14 TI,e Arkans"s L"wyer
www.arl<bar.com
other
states
that
were
made
in
U.S.c. § 1738 A. Both statutes intend ro reducing child
Child custody and visitation matters
snatching and mulriple conflicting custody
which arise in proceedings for divorce,
orders, while esrablishing criteria for and
separation,
provide a sysrem
requiring
full
for
faith
and
credit
for
appropriare court orders.
The UCCj EA, promulgated in 1998 and
violence,
prorecrion neglect,
from
abuse,
domesric
dependency,
guardianship, parerniry and rcnnination of parental rights are included. Grandparenral visirarion rights may also be included.! The
adopted by AJ-kansas in 1999, replaces the UCCjA. The main problem with the
acts
UCCJA was that it allowed concurrent
delinquency, or emancipation to encer
are
nor
applicable
to
juvenile
contracts, adoptions, proceedings to authorize emergency care of a child or orders rdaring to child support or orner monetary obligarions. (ACA § 9-19-102 (3) & (4), § 9-19-103) Child custody dererminations governed by the Indian Child Welfate Acr and those made by foreign countries are ro be recognized and enforced if made under circumsrances substanrially conforming to UCCJ EA standards. (ACA §§ 9-19-104 and 105)
2. What are the requiremellts for a court to assume jurisdictiON ofa custody case?
The jurisdicrional srandards of rhe UCCJEA apply ro four types of siruarions: inirial child-cusrody determinarions, continuing jurisdicrion, jurisdiction ro modify a pnor dererminarion, and remporary emergency jurisdicrion. It's essential to ger complete information about each child and any other possible court actions in order ro analyze what type of jurisdiction applies and which state's court can exercise jurisdiction and render a child custody determination. Initial child custody determinations. An initial child custody determination means the first proceeding in which legal or physical custody or visitation is ar issue concerning a particular child. (ACA §§ 919-102 (3) and (8)) The main question in deciding if a court has jurisdiction to make an initial custody determination is the home stare of the child, which means the State where rhe child lived with a parem or a person acting as a parent for at least six consecutive months immediately before commencement of the proceeding. If the child is less than six months old, the home state is the state in which the child lived from birth. (ACA § 9-19-102(7)) The definition of "home state" is the same under rhe PKPA. (28 U.S.c. 1738A(a)(4)) Ir is significant that the changes from the repealed UCCJA ro the UCCJ EA prioririze the home state in stare law as does the federal law. Under the state law now, a court has jurisdiction ro make an initial child custOdy determination ifthar scate is
rhe home state of the child on the dare the proceeding is commenced, or if the child no longer lives there bur ir was the home state of the child within six months before the proceeding commenced and a parent or person acting as a parent cominues to live in the state. (ACA § 9-19 202(a)(I))2 A temporary absence does not change the home state. If a child has been snarched, the home state may retain jurisdicrion beyond six months. Other bases of jurisdiction are secondary to the home stare. If there is no home state, or the home stare court declines to exercise jurisdiction, a court of a state other rhan the home state may assume jurisdicrion if ir qualifies under "signiflcanr connections." {ACA § 9-19201 (a)(2)) Exclusive continuing jurisdiction. Once a court makes an initial custody determination consistenr with the Act, that court has exclusive conrinuing jurisdiction over the marter until it finds that neither the child nor at least one parem or person acting as a parent have a significant connection with the state and that substantial evidence is no longer available concerning rhe child. Alternately, rhe originaJ court or the court of another state could find that none of the parties (the child, neither parenr nor any person acring as a parem) reside in the original state. If the court which made the child custody determination no longer has exclusive, conrinuing jurisdicrion, it may modifY that determination only if it has jurisdiction to make an initial cusrody determination. (ACA § 9-19-202) However, if a leftbehind parenr continues to reside in the State of [he initial custody determination, that state's exclusive jurisdiction continues, no marter how long the child and the other parem have been gone) Jurisdiction to modify a custody determination. Except for emergency situations, if a child custody derermination has been made by the court of another state exercISIng jurisdiction In substantial confotmiry wirh the UCCJEA, Arkansas courts have a duty ro recognize and enforce (har determination, bur not to modifY it.
(ACA § 9-19-303) A court orher than the IssUIng court may modify such a determination only if the issuing court determines that it no longer has exclusive continuing jurisdiction, or finds that the Court of some other state would be a more convenient forum as defined, or if the issuing court or another Court finds that all of the parties (the child, the parems or any person acting as a parent) no longer reside in the issuing state. To modify another court's determination, the modifying COUf[ must meet the jurisdictional standards for an initial dererminarion. (ACA § 9-19-203) Temporary emergency jurisdiction. If a child is present in the state and has been abandoned or is in need of protection because that child or a sibling or parenr of the child is subjected to or threatened with mistreatment or abuse, a court may make an emergency custody determination. If there is a prior child custody determination enrirled ro be enforced under the Acr or a child cuStody proceeding has been commenced in a court having initial, continuing or modification jurisdiction under the Act, the order issued under emergency jurisdiction muSt specify a period ro allow obtaining an order from the other state. If a court is asked to make an emergency order thar finds that a proceeding has been commenced in or a child cllstody determination made in a state which has jurisdiction under the act, it must communicate immediately with that other courr. (ACA § 9-19-204)
3. CIIN a court havillgjurisdictiofl ofone of tbe four types decline to exercise jurisdiction?
Staying exercise of jurisdiction-the prerequisite of notice and opportunity to Before a child cuStody be heard. determination is made all custody claimants and anyone having physical cllstody of the child muSt have reasonable notice and opportunity to be heard. (ACA § 9-19106) Service of process should be in accord with the law of the state where the person is served, but may be by publication. (ACA § 9-19-108) Only those who have been given
VoL 37 No. 4/Fall 2002
The Arkansas Lawyer
15
notice and opportuniry to be heard are bound by a custody determination. A cusrody determination made withom first giving notice and an opportunity to be heard to all those enrided is not enforceable under the UCCJEA (ACA ยง 9-19-205) or entitled to full faith and credit under rhe PKPA. (28 USC ยง 1738 A(e))
Declining to exercise ju.risdictioninconvenient forum. The coun that has jurisdiction may decline ro exercise jurisdiction on the basis of inconveniem forum, but before concluding it should
dlH a petitioner has engaged in unjustifiable conduct in order to obtain the court'S jurisdiction. 4 A court finding unjustifiable conduct should decline to exercise jurisdiction unless the parents and all persons acting as parents acquiesce in the jurisdiction, or the court of the state which does have jurisdiction determines that this is the more appropriate forum, or no other state would have jurisdiction. If it declines
jurisdiction on the basis of conduct, the court shaJi assess the parry who committed
decline jurisdiction, the court must aJlow the panies to submit information and must
unjustifiable conduct reasonable fees, expenses, travel costs, and also fashion a
consider factors listed in the act. (ACA ยง 919-207) The liSt has been expanded under the UCCJEA. The declining court muSt
remedy to ensure the safety of the child and prevent repetition of the unjustifiable conduct. (ACA ยง 9-19-208)
sray its proceedings on condition that an aC(Jon is promptly commenced and designate the state that is a more convenient forum. Other conditions may be imposed.
seeking 11 child custody determil1lltio1l?
Declining to exercise jurisdictionunjustifiable conduct. A court may find
4. What are tbe obligations ofthe attorueys aud litigants to notify the COllrt ofo/ber court actions or interested parties when
In the first pleading or an attached affidavit) each parry must give information if reasonably ascertainable: the child's present address, places the child has lived for the last five years, names and addresses of persons with whom the child lived in that period; a statement of whether the parry participated in any other custody or visitation regarding the child, and if so, the court, case number and date of any child custody determination proceeding; whether the parry knows of any proceeding that could affect the current one; whether the parry knows of any person nor a parry who claims rights of legal or physical custody or has physical custody, and the names and addresses of such persons. Note that the information may differ as to each child if more than one child is involved. Parties have a conrinuing dury to inform the court
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order or
of any other proceeding that could affect the currenr accion. (ACA § 9-19-209)
5. Is a court obligated to detemu·ne if a court in another state has entered an order or may assume jurisdiction to make a child custody determination regarding the same child?
The UCCJEA places a significanr burden on judges co ascertain that they are exercising jurisdiction appropriately. The judge must examine the information that the parties are required to provide under ACA § 9-19-209 and may examine the parties under oath to discover matters pertinenr to the court's jurisdiction. If the judge finds that a proceeding concerning cusrody of the child has been commenced in another state, and that the other court is exercising jurisdiction 111 substantial conformiry with the UCCJEA, rhe Court must stay its proceeding and communicate with the other court. Unless the other proceeding has been terminated or is stayed, or the other court determines that the coun
here is a more appropriate forum, this court may not exercise jurisdiction. The section on simultaneous proceedings emphasizes the obligation of communication between courts and that it is rhe court which has jurisdiction in accordance with the act which is to proceed. It is no longer "first in rime". (ACA §§ 9-19-206, 209)
6. What is involved in coml111mication between courts? Do the parties !Jave any rights to participate? COUrtS are required to communicate if a child custody determination, including a temporary emergency order, is sought and the court has information that shows a court of another scate exercising jurisdiction in conformiry wirh the UCCJEA has commenced a child custody proceeding or made a child custody determination. (ACA §§ 9-19-204, 206) The courr may allow the parties to participate in the communication, or muSt give them an opportunity to present f.1CtS and legaJ arguments before a decision on jurisd.iction is made. Except for matters
of schedules and calendars, etc., a record must be made of the communication. (ACA § 9-19-110 (d)) The parries musr be promptly informed of the communication, have access to the record and have a chance for inpur before a decision. (ACA § 9-19110) Courts may also communicate to request cooperation, such as holding an evidentiary hearing, ordering an evaluation, or ordering a parry or any person having physical custody of rhe child ro appear with or withour rhe child. (ACA § 9-19-112)
7. Does presence or absence of the c!Jild affect tbe courts jurisdiction in a predecree abductioll situation? Except for temporary emergency orders, jurisdiction does not turn on rhe presence of the child. If the court has jurisdiction, a lefr-behind parenr should promptly file for custody to preserve home state jurisdiction. That parent can then move to dismiss any
Jurisdiction Continued on page 30
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It S Withill Your Reach.
Parental Alienation Syndrome and Alienated Children
About the Author Carol S. Bruch is Professor Emerim and Research Professor of Law at the Universiry of California, Davis and a former chair of the campus' doctoral program in human development. A 1972 Boalt Hall
graduate. she clerked ar the US Supteme Court before joining the UC Davis law fitcwry, whete she caught until 2001. Prof Bruch received a Distinguished Public Service Award from her campus in 1990 and an honorary donoral degree from the University of Basel (Swirzerland) for het scholarship on behalf of children in 2000.
A
American courts and legislatures continue their enthusiastic ventures 'nro family law reform, they make frequem use of theories and research from the social sciences. This essay focuses on developments III child cusmdy law sremrnlllg from "Parenral Alienation Syndrome" (PAS), a theory propounded in 1985 that became widely lIsed despite its lack of scientific foundations. The discussion highlights theoretical and practical problems with PAS, provides a similar discussion of more recent proposals concerning "A1ienared Children" (AC) and concludes with recommendations for lawyers and judges who must evaluate these and similar developments. Child psychiatrist Richard Gardner coined the term Parental Alienation Syndrome in 1985 to describe his clinical
Getting It Wrong In Child Custody Cases* by Carol s. Bruch**
Impressions of cases he believed involved fitlse aHegations of child sexual abtlse. The essence of PAS. in his view, is a child's campaign of denigration against a parent that results from "programming (,brainwashing') of the child by one parem to denigrate me Olher parent [andl selfcreated contributions by the child in support of the alienating parent's campaign ...." Dr. Gardner first stated that PAS was presem in approximately 90 percent of the children whose families were involved in custody litigation but provided no research findings to substantiate his assertions about the syndrome, its frequency or its setting. In fact, his initial estimates appear to have been dramatically overstated, particularly as to the frequency of false sexual abuse allegations, and his revised estimates have been far more circumspect.
Vol. 37 No. 4/F.1I 2002
TI,e Arbnsas LmV)'er
19
In recent years, use of the term PAS has been extended dramatically to include cases of all rypes in which a child refuses to visit the non-custodial parent, whether or not the child's objections entail abuse allegations. Although Dr. Gardner sometimes states that his analysis does not apply to cases of acrua! abuse, the focus of his anemion is directed at discerning whether the beloved parem and child are lying, not whether the target parent is untrmhful or has behaved in a way that might explain the child's aversion. His recommended treatment for serious cases is ro transfer custody of the child from the beloved custodial parent to the rejected parem for deprogramming. This may email institutional care for a transitional period, and all conract, even telephone calls, with the primary caregiver must be terminated for "at least a few weeks." Only after reverse-brainwashing may the child slowly be reimroduced to the earlier custodian through supervised visitation. High conflict families are disproporrionately represemed, of course, among the population of those conresting custody and visitation. These cases commonly involve domestic violence, child abuse and substance abuse. Many parents are angry, and a broad range of visitation problems occur. Dr. Gardner's description of PAS may well remind parents, therapists, lawyers, mediarors and judges of these frequently encountered emotions, and this may help to explain why his audience has often accepted PAS without question. The overwhelming absence ofcareful analysis and attention to scientific rigor these professionals demonstrate, however, is deeply troubling. The carelessness has permitted what is popularly termed junk science (pseudo science) to influence custody cases in ways that are likely to harm children.
The deficiencies in PAS theory are multiple. First, Gardner confounds a child's developmentally related reaction to divorce and high parental conAict (including violence) with psychosis. In doing so, he fails to recognize parents' and children's angry, often inappropriate, and totally predictable behavior following separation. This error leads him ro claim that PAS constitutes a frequem example of foli~ a deux or folie a trois, shared psychotic disorders that the American Psychiatric Association and scholarly scudies report occur only rarely. His assertion that these disorders occur primarily in young children is also contrary ro the literature, probably also due to a misreading of rypical developmental responses to divorce on the parr of young children. Second, Gardner vastly overStates the frequency of cases in which children and custodial parents manufacture false allegations or collude to destroy the paremchild relationship. Taken together, these assertions have the practical effect of impugning all abuse allegations, allegations which Gardner asserts are usually false in the divorce conrext. Here, roo, Gardner cites no evidence in support of his personal view, and the relevant literature reports the contrary-that such allegations are usually well founded. Third, PAS shifts attention away from the perhaps dangerous behavior of the parent seeking custody ro that of the cuStodial parent. This person, who may be attempting to protect the child, is instead presumed to be lying and poisoning the child. Indeed, for Gardner, the concerned custodial parent's steps to obtain professional assistance 111 diagnosing, treacing and protecting the child constitute evidence of false allegations. \Vorse yet, if therapists agree that danger exists, Gardner
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asserts that they are almost always manhating women who have emered imo a ftiit a trois with the complaining child and concerned parent. Indeed, he warns judges not to take abuse allegations seriously in the divorce court setting in high conflict cases (severe PA cases). Neither Gardner nor those who accept his views acknowledge the logical difficulties when Gardner asserts that abuse allegations which are believed by therapists constitute evidence of parenta.l alienation by the protective parem. Fourth, Gardner believes that, particularly in serious cases, the relationship of an alienated child with the rejected parem will be irreparably damaged, probably ending for all time, unless immediate, drastic measures (custody transfer, isolation from the loved parent, and deprogramming) are taken. Here, tOO, his theory is exaggerated, with all bur unusual cases (for example, those appearing in violent families) resolving themselves as the children mature. Fifth, Gardner's proposed remedy for extreme cases is unsupported and endangers children. In his admitted decision to err on the side of under-identifying abusers, Gardner appears to have overlooked the policy differences between criminal law and child custody law and aho to have misunderstood the distinction between the burdens of proof in criminal and civil cases in the United tates. To the extent that PAS results in placing children with a parent who is, in fact, abusive, the youngsters will be bereft of contact with the parent who might help them. Parent groups and investigative reponing describe, for example, numerous cases in which trial courts have transferred children's custody co known or likely abusers and custodial parents have been denied contact with the children they have been trying to protect. In less extreme cases, tOO, children are likely to suffer from such a sudden dislocation in their home life and relationship with the parent they truSt. Even therapists who accept PAS theory have advised against custody transfers to no avail in some reponed cases in which it seems judges have implemented Gardner's views on their own initiative. In sum, children's reluctance or refusal ro visit noncustodial parents can probably be better explained without resorting to Gardner's theory. Studies that follow families over several years, for example, report that visits may cease or be resisted
when a variety of reasons causes custodial parents and children to be angry or uncomfortable with the other parent. Often the noncustodial parent's behavior and rhe child's developmental stage play decisive roles. Alignments or alliances that are somewhat reminiscent of Gardner's construct are much less frequent than he suggests, and even in extreme cases, these scholars agree that PAS theory calls for inappropriate and harmful responses that imensify the problem. How, then, did such a seriously misconceived, overstated and harmful view gain widespread acceptance? What would inspire judges to order custOdy transfers against the uniform advice of expert First, Gardner is witnesses in a case? broadly (bur mistakenly) believed ro be a full professor at a prestigious university. Because this aura of expertise accompanies his work, few suspect that it is mostly selfpublished, that it lacks scientific rigor, and that his books on PAS are not even held by most university and research libraries. Next, Gardner promotes his writing and services as an experr through his own website, receives referrals from the websites of fathers' organizations, and provides packaged continuing education courses for professionals. Finally, he often inaccurately represents or suggests that PAS is consistent with or endorsed by the accepted work of others. In any event, over the years since Gardner first announced his theory, the term PAS has entered into public usage. The media, parems, therapists, lawyers, mediators and judges now often refer to PAS, many apparently assuming that it is a scientifically established and useful mental health diagnosis. Accordingly, in practice. whenever child sexual abuse allegations or disrupted visitation matters arise in the United States, one must now be prepared to confront a claim asserting that PAS is at work, not abuse or other difficulties. An electronic search for all reported U.S. cases between 1985 and February 2001 employing the term "parental alienation syndrome" revealed numerous mental health professionals in addition to Gardner who have testified that PAS was presenr, although far fewer were willing to recommend that custody be transferred and contact with the primary custOdian be terminated. The search produced 48 cases from 20 states, including the highest courts
states. The degree to which PAS has been invoked by expert witnesses, auorneys or judges in these cases and the almost rotal absence of inquiries into its scientific validity are profoundly disturbing. In only a handful of cases did the trial or appellate court specifically consider whether the supposed syndrome was admissible under the accepted precedents that teS[ either 111 SIX
acceptance in me scientific community or acceptable scientific methodology, and in several of these, the court determined that ir did nor need to reach the admissibility question, often because no alienation had been shown. On more than one occasion, however, appellate courtS nevertheless rook the occasion to alert trial courts to the fact thar Gardner's work is seriously disputed.!
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In the few reponed cases in which Gardner's proffered testimony was challenged or the validity of PAS was otherwise questioned, courts usually exclude his testimony and reliance on PAS. These cases reveal two areas of concern. First, courtS are consistent in refusing CO permit Gardner to testifY on the truth or falsity of witnesses, noting that this question is reserved to rhe trier of fact. Second, most U.S. CourtS considering the question agree that PAS has nOt been generally accepted by professionals and does not meet the applicable test for scientific reliability.2 These conclusions are echoed by Other prominent professionals. Dr. Paul J. Fink, a past president of the American Psychiatric Association and president of the Leadership Council on Mental Health, Justice, and the Medja, for example, has stated quite bluntly, "PAS as a scienrific theory has been excoriated by legitimate researchers across the nation. Judged solely on his merits, Dr. Gardner should be a rather pathetic footnote or an example of poor scientific standards."3
Despite the good work of most of the courts that have considered the scientific probity of PAS, there is little to celebrate. The vast majority of the cases mentioning PAS reveal that one or more of the experts evaluated the case in light of PAS, and there is nothing to suggest that anyone-experr, attorney or judge-thought to question whether the theory is well founded or leads to sound recommendations or orders. A similar lack of rigor is now also seen in foreign sources. In practice, PAS has provided litigational advantages to noncustodial parents with sufficient resources to hire attorneys and expens. 4 It is possible that many attorneys and mental health professionals have simply seized on a new revenue source-a way to "do something for the father when he hires me," as one practitioner putS it. For those who focus on children's well-being, it hardly matters whether PAS is one more example of a "street myth" that has been roo willingly embraced by the media and those involved in child custody litigation, or whether
attorneys and mental health professionals truly do not know how to evaluate new psychological theories. Children whose parenrs do not agree or cooperate concerning their care are placed in the middle of loyalty conflicts that can only stress and sometimes break them. We do not yet know enough about how children develop loyalties and antipathies or resolve them as they mature, whether in intact or divided households. Until we do, caution should guide therapists and courts. A growing body of research documents the harsh and sometimes violenr world that a large percentage of children in high-conflict custody disputes seeks to escape. PAS as developed and purveyed by Richard Gardner has neimer a logical nor a scientific basis. It is rejected by responsible social scienrists and lacks solid grounding in psychological theory or research. AC, alrhough more refined in its understanding of child-parent difficulties, entails intrusive, coercive, unsubstantiated remedies of its own, as detailed in the article from which
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Table of Contents A Message From The President 3
Profile of the Arkansas Bar Foundation 4
Foundation Funding 5
Commitment to Education 5
Scholarships 6
Fellows of the Arkansas Bar Foundation 7, 8
Special Project Grants 9
History of the Bar Project 9
Recognizing Excellence 10
Donors 11
Board of Directors 12
Arkansas Bar Foundation 400 West Markham Little Rock, Arkansas 72201 501-375-4606
2
A Message from the President of the Foundation Dear Fellows and Friends of the Arkansas Bar Foundation: I am pleased to present to you the Annual Report for the Arkansas Bar Foundation for the 2001-2002 year. It has been a busy year for the Foundation. Over the course of the past fourteen years, the Arkansas Bar Foundation has awarded approximately $500,000 in endowed and merit scholarships to almost 600 recipients from the two Arkansas law schools. The Arkansas Bar Foundation awards six Foundation Merit Scholarships annually, three to each law school. The Foundation currently administers thirty-nine scholarship endowments and as of March 31, 2002, the Foundation's scholarship endowment totaled $653,050. This year we awarded 26 scholarships to law students at the University of Arkansas School of Law in Fayetteville and 28 scholarships to students at the UALR William H. Bowen School of Law. These scholarship awards are an essential part of the operation of the Foundation and give real results to our efforts in building scholarship funds. We were pleased to have many of the scholarship recipients present with us at our Mid-Year Dinner on February 8th in Little Rock. There are currently 533 Fellows of the Foundation. In addition, we now have 185 Sustaining Members. The contributions from the Sustaining Fellows are very important to the financial health of the Foundation and we hope this support increases in the future. In the 2001-2002 year, a new endowed scholarship was established. The Wilson & Associates Law Firm in Little Rock established a generous scholarship endowment to be awarded annually at each Arkansas law school to a student with the top Ethics paper. This endowment fund, entitled the Wilson & Associates Ethics Scholar, has almost doubled in size during the course of this bar year thanks to monthly contributions from the firm designated to this scholarship. In addition, we are honored to recognize an outstanding professor at each law school who receives the designation of Arkansas Bar Foundation Professor of Law. The recipients are selected on the basis of excellence in teaching, excellence in scholarship in Arkansas law, and significant contributions to the bench and bar of Arkansas. Professor Robert Leflar of the University of Arkansas School of Law and Professor Dent Gitchel of the UALR William H. Bowen School of Law hold this designation for 2001-2002. The Foundation, through its officers, directors and Building Committee, continues to work with the Arkansas Bar Association to continue the use of the Arkansas Bar Center by the Association for many years to come. There is much work to be done on the building project and I am sure that each Fellow will have an opportunity to be involved in the project. I wish to express my personal thanks to the efforts of all the Board Members and each member of the committees of the Foundation. Their hard work is essential to our success. I would also like to thank my fellow officers, Teresa Wineland, Vice-President (and President-Elect) and Tim Tarvin, Secretary-Treasurer. Finally, I wish to express a very warm thanks to Ann Dixon Pyle, our Executive Director, and her assistant Joyce Bobbitt. Their continuing efforts on behalf of the Foundation are most appreciated by all of us. I appreciate the opportunity to have served as your President during this year. Cordially yours,
/j~L.O~ Thomas L. Overbey, President Arkansas Bar Foundation
3
Profile of the Arkansas Bar Foundation Association, UALR and other offices. The Bar Center has a formal conference room which is frequently used by lawyers from around the state for depositions and meetings. The open lobby area is a perfect site for receptions and larger meetings.
THE ARKANSAS BAR FOUNDATION was established in 1958 to support efforts at improving the administration of justice. The Arkansas Bar Foundation, which is classified as a tax exempt organization under Section 501 (c) (3) of the Internal Revenue Code, is a charitable organization with a mission to promote educational, literary, scientific and charitable purposes which are more specifically described as follows: 1)
To improve and facilitate the administration of justice.
2)
To promote legal study and research, diffusion of knowledge of the law and continuing education of lawyers.
3)
To publish and distribute addresses, reports, treatises and other literary works on legal subjects and to acquire, preserve and exhibit rare books and documents, objects of art and items of historical interest having legal significance or bearing on administration of justice.
The Arkansas Bar Foundation is governed by an eighteen member Board of Directors. The Board is composed of Fellows elected by the Foundation membership from each of the state bar districts plus the Arkansas Bar Association President, the Immediate Past President of the Foundation and the Chair of the Trust Committee. The Officers of the Foundation are the President, Vice President, and Secretary-Treasurer, who are elected by the Board for one-year terms. Members of the Board are elected at the annual Foundation membership meeting. The seventeen-member Trust Committee is composed of experienced lawyers who serve six-year terms. Two are appointed by each President and confirmed by the Board. Other members are the Foundation Officers and the Deans of the two Arkansas law schools. The Trust Committee manages the Trust Fund to generate income for the good works of the Foundation. Only interest earned on the Trust Account is used. A separate operating account pays the cost of running the Foundation.
The Arkansas Bar Foundation funded the building of the Arkansas Bar Center, located at 400 West Markham, Little Rock, Arkansas, which has been the location of the Foundation and the Association since 1974. The building is wholly owned by the Foundation, but space is rented by the Arkansas Bar
ARKANSAS BAR FOUNDATION 400 WEST MARKHAM LITTLE ROCK, ARKANSAS 72201 (501) 375-4606 (800) 609-S668
4
Foundation Funding For fiscal year 2001-02, the Arkansas Bar Foundation approved grants, scholarships and program allotments of benefit to the profession and the public. Scholarships and projects of the Arkansas Bar Foundation are financed through investment income from the trust fund which has been built by contributions and Fellows' pledges and is used solely for the good works of the Foundation. This illustration reflects allocations for the 2001-02 year. ~"""o;;:------
Awards/Recognition
-.->,,.---- Law-Related Education Programs
2%
11%
Foundation Merit Scholarships and Foundation Professorships
22%
Special Projects Grants
28%
Endowed Scholarships
37%
*The Arkansas Bar Foundation's fiscal year begins on July 1 of each year and ends on June 30.
Commitment to Education The Arkansas Bar Foundation contributes support to the two Arkansas law schools. In addition to the many endowed named law school scholarships and the Arkansas Bar Foundation Merit Scholarships awarded to deserving students at each school, the Foundation also approved funding in the total amount of $24,350 in the 2001-02 trust budget for Bar Foundation the following: Arkansas Moot Court Professorships; Law Student Competition; and, Law Review and Law Journal writing awards. The Arkansas Bar Foundation has established an Arkansas Bar Foundation Professorship at the University of Arkansas School of Law and the UALR William H. Bowen School of Law. One outstanding faculty member from each school is selected to hold this designation of "Arkansas Bar Foundation Professor of Law" and receives a salary supplement upon this designation. The criteria for selection is excellence in teaching; excellence in scholarship in Arkansas Law; and, significant contributions to serv-
ing the Bench and Bar of Arkansas.
ARKANSAS BAR FOUNDATION PROFESSORS OF LAW Professor W. Dent Gitchel, UALR William H. Bowen School of Law Professor Robert B Leflar, University of Arkansas School of Law Other program allocations include funding appropriated for the Arkansas Bar Association and Arkansas Bar Foundation Ann ual Awards. The Arkansas Bar Foundation Trust Committee, which administers an endowment fund for the Continuing Legal Education (CLE) Department, approved funding in the amount of $8,430 to be utilized to off-set costs for three programs sponsored by the Arkansas Bar Association Continuing Legal Education (CLE) Department -- the Bridging the Gap Seminar; Strong Legal Writing; and, Law Office Management.
5
Scholarships Each year, the Arkansas Bar Foundation awards approximately 40 endowed law school scholarships to students at the University of Arkansas School of Law and the UALR William H. Bowen School of Law. In addition, the faculty of each of the two law schools are allotted three scholarships for students who show potential and who are deserving of financial award. These Arkansas Bar Foundation Merit Scholarships are funded by the Foundation in the total amount of $7,500 and have produced fine lawyers who othervvise may not have been able to afford the costs of law school without the Foundation's assistance. Scholarship recipients were honored at the Arkansas Bar Foundation Mid-Year Scholarship Dinner which was held at The Little Rock Club on February 8, 2002. University of Arkansas at Fayetteville School of Law 2001-02 Scholarships Scholarship Awarded Arkansas Bar Foundation (In honor of Sebastian County Bar, U.M. Rose, Mike Gorman & Edward L. Wright) Arkansas Association of Women Lawyers (In honor of Ruth Huskey Brunson) Guy Amsler, Jr. Joe C. Barrett Bogle-Sharp R. A. Eilbott, Jr. Vincent W. Foster, Jr. Judge John A. Fogleman Friday, Eldredge & Clark Judge J. Smith Henley Justice J. Frank Holt Edward Lester Horace H. McKenzie Judge John E. Miller Col. C. E. Ransick Rather, Beyer & Harper Smith, Stroud, McCierkin Dunn & Nutter M. Jeff Starling· C. R. Warner Harry P. Warner Bernard & Bud Whetstone Wilson & Associates Ethics Scholar· Judge Henry Woods Arkansas Bar Foundation (Merit Scholarship) Steven Lewis
Recipient
Theresa Warner Ann Mourney Dannette Mitchell Clay Fowlkes Erron Smith Raney English Caroline Curry Joseph Falasco Tiffany Armstrong Jeff Richard Jason Katz Chris Eubanks Allyson Kennett Corey McGaha Curtis Marsh
Erica Boudreaux Jessica Dupree Kimberly McMillen Darrell Brown, Jr. Maurice Rigsby Kezia Josenberger-Johnson Drew Quitschau Jessica Middleton
UALR William H. Bowen School of Law 2001-02 Scholarships Scholarship Awarded Arkansas Bar Foundation (n honor of Sebastian County Bar, U.M. Rose, Mike Gorman & Edward l. Wright) Arkansas Association of Women Lawyers (In honor of Ruth Huskey Brunson) Bogle-Sharp Robert l. Beard, Jr. John H. and Ruth H. Brunson Patti Stanley Brett Watson
Christian Harris E. Charles Eichenbaum
Amy Dunn Ken Misken Margaret Johnston
R. A. Eilbott, Jr. Friday, Eldredge & Clark James H. Lamson, Jr. Edward Lester Brian MacMillan Judge William R. Overton Col. C. E. Ransick Rather, Beyer & Harper Rose Law Firm U. M. Rose The Shackleford Scholarship Justice George Rose Smith David Solomon C. R. Warner Harry P. Warner Bernard & Bud Whetstone Roxanne Tomhave Wilson Wilson & Associates Ethics Scholar· Judge Henry Woods Justice Thomas Clark Trimble· Arkansas Bar Foundation (Merit Scholarship)
Recipient Ken Misken Whitney Moore Jeffrey Lavicka Oliver Hahn Ken Misken Jennifer Wethington Peggy Egan Leslie Ligon John Young Scott Wolf Laura O'Bryan Nathan Morris David Jones Jonathan Ross Brandon Larsen John Pennington Brian Smith Ken Misken April Minor Patrick Higle Marianne White Nathan Morris Brandon Larsen Robert Beard Trella Sparks Anne Perrigo
Emily Abbott • Will be awarded in the spring
6
Anne Perrigo Leslie Ligon
FELLOWS OF THE ARKANSAS BAR FOUNDATION
Outstanding lawyers in the State of Arkansas are invited to become Fellows of the Foundation. Upon invitation, a Fellow must contribute or pledge to contribute an amount designated by the Foundation Board. The current financial requirement to become a Fellow is a pledge of $1,500, which is payable over a three or five year period. Upon receipt of the pledge and initial payment, the attorney is designated a Fellow. After the pledged contribution has been paid in full, the Fellow's picture will be displayed in the Hall of Fellows in the Arkansas Law Center. This list represents the current 533 Fellows of the Foundation as of April 30, 2002. Those Fellows whose names are highlighted in bold are recognized as newly designated Fellows for the 2001-02 year. SUSTAINING FELLOWS
Pledge payments, scholarship contributions and other gifts are deposited into the Trust Fund. While investment income from the Trust Fund principal funds the charitable and educational purposes of the Foundation, a separate operating account pays for the day to day costs associated with administering the Foundation. In addition to rent from tenants in the Arkansas Bar Center, a primary source of operating funds is through Sustaining Fellowships. Any Fellow of the Foundation who contributes $75 annually may become a Sustaining Fellow. We appreciate the support of our 185 Sustaining Fellows. Names marked with a "*" represent Fellows who were also Sustaining Fellows as of April 30, 2002. Julius C. Acchione Richard B. Adkisson Chades Greg Alagood
• Edwin B. Alderson, Jr. · H. William Allen R. Ben Allen · Guy Amsler, Jr. E. M. Anderson Overton S. Anderson
Philip S. Anderson · R. Keith Arman Morris S. Arnold W.H. "Dub" Amold Jess L. Askew, 11\ · Virginia Atkinson E. leRoy Autrey Lawrence H. Averill, Jr. Donald H. Bacon Carlton Bailey Fmnk H. Jlajley Nancy H. Bailey Ktnneth B. Bairn Charles W. Baker James P. Baker, Jr. Roy L. Baker, Jr. E.J. B~I William K. B~l Don K. Barnes Ralph C. 'Barnhart • W. Christopher Barrier Ben T. Bany Sherry P. Bartley David F. Banon Robert Batton Samuel R. BUlef R.I. Beard, 11\ John R. Beasley Mike Beebe Joe D. Bell Paul B. Benham, 11\
·
·
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, ,
J()( Benson
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Sanford L Besbear, Jr. Edgar E. Berhell Sam N. Bird Eric W. Bishop H. David Blair James B. Blair TIm Boe Paul R. Bosson Ted Boswell William H. Bowen
Edward Boyce Wayne Boyet • Comer Boyen, Jr. Thomas M. Bramhall
·
,
Ellen B. Bmntley William C. Bridgfonh Bill W Bristow Edward W. Brockman, Jr. Charles A. Brown Gerald Brown Robert L Brown Thomas E. Brown C. Bramley Buck C. Douglas Buford, Jr. Tom A. Buford Dale L Bumpers Dan M. Burge Larry W. Burks Kevin R. Burns Richard C. Butler,) r. William Jackson Bun 11 James A. Bultry F. Wilson Bynum,) r. John R. Byrd Richard J. Byrne Roben D. Cabe John C. ~houn, Jr. Worth Camp, Jr. George E. Campbell Claude Carpenter,) r. Thomas M. Carpemer Pbillip Carroll Daniel R. Caner Jean T. Carter Paula J. Casey Roben M. Cwley, Jr. Jack S. Cherry, Jr. Sandra Wilson Cherry Lawrence E. Chisenhall, Jr. Bill S. Clark William M. Clark, Jr. W. Dane Clay H. Murray Claycomb Hillary Rodham Clinton Ralpb M. Cloar, Jr. Eldon F. Coffman Charles T. Coleman Robert C. Compton Waller K. Compton Barry E. Coplin Ben Core Nate Coulter J. Scon Covington Kenneth W Cowan James O. Cox Kevin A. Crass Michael H. Crawford Jan R. Cromwell James D. Cypen
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Thomas A. Daily Roy E. Danuser Jim Darr, Jr. John A. D"ls, 11\ Sidney P. Davis.J r. Raben T. Dawson Barry Deacon ].c. Deacon Gernld L. Delung Rebecca). Denison Roben L. Depper, Jr. Jay W. Dickey, Jr. Edward B. Dillon, Jr. W.G. Dinning.)r. Philip E. Dixon Raben E. Dodson Roben P. Dougheny Darrell D. Dover James F. Dowden Ted N. Drnke Winslow Drummond Timothy O. Dudley Phillip J. Duncan James M. Dunn Winford L. Dunn James Trester Dyke B. Michael Easley John C. Echols Charles H. Eddy Don A. Eilbon G. Thomas Eisele Byron M. Eiseman, Jr. John D. Eldridge Don R. Elliort,) r. Grorge D. Ellis Jeffrey Ellis John R. Elrod w.w. Elrod, II William H. Enfield Stephen Engstrom Lewis E. Epley, Jr. Robert R. Estes Gary L. Eubanks Audrey R. Evans Mike Everett Lindsey J. Fairley Phillip B. Farris Jackson Farrow, )r. Oscar Fendler William Lee Fergus J. Michael Finbugh Victor A. Fleming John A. Fogleman Julian B. Fogleman John F. Forster, Jr.
,
, · ·
, , ·
•
,
· ·
limothy Davis Fox Charles Frierson, 1II Roben F. Fussell W. Dale Garren M. Morrell Gathright Katherine C. Gay Pamela B. Gibson Sam E. Gibson Manin G. Gilbert Jobn P. Gill Marion S. Gill C. Joseph Giroir, Jr. W. Oem Gitchel Monon Gitelman Roger A. Glasgow David M. Glover Charles S. Goldberger Charles W. Goldner, )r. IUy A Goodwin Nathan G, Gordon Albert Graves, Jr. Albert Graves, Sr. John R. Grnves Kathlyn Graves Judith H. Gmy J. W. Green,Jr. John C. Gregg Richard E. Griffin Ronald L. Griggs Mark W Grobmyer Wayne Gruber Michael E. Hale Milas H. H~e, 11\ John T. H~ey, Jr. D. Wendell Hall, Jr. Don F. Hamilton Donis B. Hamilton Herman L Hamilton,) r. Frank S. Hamlin Stuart W. Hankins John T. Hardin David M. Hargis John N. Harkey David K. Harp Searcy W. Harrell, Jr. Eugene S. Harris James E. Harris Ron D. Harrison S. Reid Harrod, Jr. John T. Haskins Richard Hadield William D. Haught Claude S. Hawkins, Jr. M. Steele Hays Jimm L. Hendren
•
• · ·
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Donald H. Henry Robert W. Henry E. H. Herrod Sam Hilburn E. Kent Hirsch William H. Hodge David A. Hodges Henry Hodges Kaneaster Hodges, Jr. Curtis E. Hogue Alice L. Holcomb Cyril Hollingsworth Don Hollingsworth Bill R. Holloway M. Joe Holmes Jack W. Holt, Jr. Roben M. Honea Jenniffer M. Horan Matthew Horan Rohert E. Hornberger Phillip D. Hour Dorothy Y. Howard EJ. Howell, Jr. D. Michael Huckabay, Sr. Clint Huey Don R. Huffman Annabelle Climon Imber Randall W. Ishmael Hermann Ivester Don~d T. Jack, Jr. John H. Jackson Randolph C. Jackson Sherry Jackacn Leon N. Jamison A1swn Jennings, Jr. AlslOn Jennings Bradley D. Jesson John M. Jewell W. Horace Jewell Glenn W. Jones, Jr. Louis B. Jones, Jr. M. Samuel Jones, 1II Robert L. Jones, Jr. Roben L. Jones, III W. Wilson Jones Jim L. Julian Eugene Kelley William H. Kennedy, III J.L. Kidd,Jr. Judson C. Kidd John N. Killough Joseph E. Kilpatrick, Jr. Warren O. Kimbrough Mike Kinard Don~d K. King Harold L. King Knox B. Kinney John S. Kitterman Peter G. Kumpe H. BakC'T Kurrus Stanley R. Langley David N. Laser Sam I....aser John T. Lavey Ik, NI,n Laws, Jr. Leland F. Leatherman Charles R. Ledbeller Thomas D. Ledbetter Robert BLeflar Markham Le.mr Stark Ligon Gary E Liles Ruth Lindsey DanieUe Litaker W Kirby l.ockha" Floyd J. Lofton J. Hugh Lookadoo, Jr. Edwin L. Lowther, Jr. Parry W. Lu,ken James M. Luffman
Samuel A. Perroni Donna C. Petrus E. Lamar Penus Nnrwood Phillips John M. Picken Geo'J\e E. Pike, Jr. John M. Pittman Charles E. Plunken Od,1I Pollard David M. Powell Don~d E. PrevaJlet William I. Prewett David H. Pryor Thomas 8. Pryor Don~d C. Pullen Steven W. Quattlebaum John W. Raines Michael R. Rainwater Louis L. Ramsay, Jr. Richard L. Ramsay C.E. Ransick Brian H. Ratcliff Gordon S. Rather, Jr. J. Thnmas Ray Stephen M. Reasoner David Rees Richard A. Reid James R. Rhodes, III Ben E. Rice Elton A. Rieves, III Richard W Roachell Andree L. Roaf John 8. Robbins Mark Robens Susanne Robens Thomas E. RoberlSOn H. Clay Robinson Robert L. Robinson, Jr. Spencer F. Robinson Judith Rogers Chari" B. Roscopf Chari" D. Roscopf Louis Rosen Jeff M. Rosenzweig Robert D. Ross Roben R. Ross Beverly A. Rowlen Elsijane 1. Roy Kent J. Rubens Herbert C. Rule, III Don~d S. Ryan J.E. Sand,,, Daniel K. Schiemer Eugene L. Schieffier Don M. Schnipper Isaac A. Scou. Jr. Mary Davies Scon Frank B. Sewall Dennis L. Shackleford John M. Shackl,ford, Jr. John K. Shamburger • Stephen M. Sharum , J. L. Shaver, Jr. J. Michael Shaw Kenneth R. Shemin William E Sherman Scorry Shively Robert Shults Steven T. Shults Harold H. Simpson, II James Marlon Simpson, Jr. Jack Sims T,d C. Skokns Howard L. Slinkard Berl A. Smith Donald H. Smith Douglas O. Smith, Jr. Laura H. Smith Ray S. Smith, Jr. Roben D. Smith, III
Diane S. Mackey Edward S. Maddox Phil M~com Howard L. Manin Richard L. Manin William A. Manin Michael H. Mashburn Terry L. M:Hhews Charles D. Manhews David R. Manhews Stephen A. Matthews Ronald A. May S. Hubert Mayes, Jr. Richard L. Mays Robin L. Mays Eugene J. Mazzanti Hall McAdams, III A. D. McAllister, Jr. • Austin McCaskill James E. McClain, Jr. Hayes C. McClerlcin Sidney H. McCollum Ed W McCorkl, Bobby McDaniel Lucinda McDaniel Harry E. McDermon, Jr. Raben McHenry Marcia Mcivor James A. Mclarty. III James 8ruce: McMath Phillip H. McMath Sidney S. McMath Toney D. McMillan Jack A. McNulry D. L. McRae Margaret B. Meads Russ Meeks David F. Menz H. Maurice Mitchell Michael W Mitchell Roben Moberly MarkA. Moll Edward O. Moody James M. Moody Charles Mooney, Sr. Dewey Moore, Jr. Harry Truman Moore James L. Moore, IJI James W Moore: John B. Moore, Jr. Richard N. Moore, Jr. Charles A Morgan Stephen E. Morley Kenneth R. MOllnon Rosalind M. Mouser Wm. Kirby MoUS(r I..« J. Muldrow Walter A. Murray Richard S. Muse Ronald G. Naramore OllyN~
E. Sheffield Nelson Charles R. Neslrud David N~rn George H. Niblock Raymnnd L. Niblock Wyck Nisbet, Jr. R. Gary Nurter Mike A. O'Brien Bobby Lee Odnm Conrad T. Odom Richard P. Osborne Thomas L. Ombey Charles C. Owen William L. Owen Michael O. Parker Nicholas H. PallOn William L. Panon.Jr. Richard L. Ped . Edward M. Penick
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Frank Snellgrove, Jr. David Solomon James V. Spencer. III James D. Sprott Gale B. Stewart Jean D. Srockburger William M. SlOcks Thomas S. Stone O.H. Srnrey, III Thomas S. Streetman Joseph A. Snode John E Stroud, Jr. Paul Sullins William H. Sutton limmhy R. Tarvin Rex M. Terry William L. Terry I..« Thalheimer Marvin D. Thaxron Hoyt Thomas Robert F. Thompson Ray Thormon Danny Thraillcill Thomas P. Thrash John R. 1isd~e Win A. Trafford Roben D. Trammell N. Walls Trimble Edgar J. Tyler Fred S. Ullery David B. Vandergriff A. Glenn Vasser Robert C. VinilOw Eddie H. W~kcr, Jr. w.J. Walker James R. Wallace Larry C. W~lace G. Chris W~th~1 John J. Warkins Frank L WalSOn, Jr. John Dewey Warson TImothy F. Watson, Sr. James E. Wesl 8ud 8. Whetslone Frank B. Whitbeck Frank L. Whirbeck Norman Wilkinson Chris E. Williams Richard A. Williams Robert H. Williams W Jack Williams, Jr. J. Gasron Williamson Jennifer Wtlson Ralph E. Wilson Robert M. Wilson, Jr. William R. Wilson, Jr. Russell 8. Winburn Teresa M. Wineland Carolyn B. Witherspoon Tom D. Womack Joe D. Woodward Richard H. Wootton Jacqueline S. Wright Robert R. Wright, III Susan Webber Wrighr Terry E Wynne W. Kelvin Wyrick Cary E. Young Damon Young H. David Young Paul B. Young Roben E. Young
Special Projects Grants The Arkansas Bar Foundation provided special projects grants totaling $28,500 to programs during the 2001-02 year. Funding for the following legally-related projects represents the Foundation's commitment to its educational and charitable mission to improve the administration of justice.
leave a legacy Arkansas
$ 3,000
Public Awareness Campaign
$ 3,000
Arkansas Bar Association Family law Section "Mom, I Love You/Dad, I Love You" video
Arkansas Volunteer lawyers for the Elderly and Volunteers' Organization for the Center for Arkansas legal Services
$ S,OOO
The Familv Law Guide
$10,000
Arkansas Bar Association Justice, 2002 Annual Meeting program
Arkansas Supreme Court Historical Society
$ 7,500
The Legal History of African-American Arkansans Exhibit
History of the Bar Project Complete this research work was possible. This project has now come to fruition thanks to the incredible donation of time, talent and expertise by its author OLD sUDS IN THe NEW' LAND Dr. Robert R. Wright and the leadership of the Arkansas Bar Association History of the Bar Committee Chairs throughout the years -- the late Justice George Rose Smith and Justice John A. Fogleman. Books are for sale through the Arkansas Bar Foundation.
The Arkansas Bar Foundation and Arkansas Bar Association are thrilled to report that the long-awaited manuscript, Old Seeds in the New Land: History and Reminiscences of the Bar of Arkansas, written by Dr. Robert R. Wright, was published during the 2001-02 bar year. This manuscript is a well-researched, carefully documented work that chronicles the development of the legal profession and analyzes and interprets the role and influence of lawyers throughout the state's existence. Attorneys have made important contributions to this state, and now there is a record of their activity. A total of sixty three (63) Arkansas attorneys and law firms contributed funds to the Arkansas Bar Foundation for this project during the 1988-89 bar year. Thanks to this generosity, along with several grants from the Arkansas Bar Foundation, funding for
9
Recognizing Excellence 2002 Annual Awards These awards are given jointly by the Arkansas Bar Foundation and Arkansas Bar Association and presented during the annual bar meeting in Hot Springs.
Bradley D. Jesson
Harry Truman Moore
Robert R. Wright 11/
vv. Christopher Barrier
James H. McKenzie
John J, Watkins
OUTSTANDING LAWYER AWARD BRADLEY D. JESSON Given in recognition of excellence in the practice of law and outstanding contributions to the profession. OUTSTANDING LAWYER-CITIZEN AWARD HARRY TRUMAN MOORE For recognition of outstanding participation in and excellent performance of civic responsibilities, and for demonstrating high standards of professional competence and conduct.
C. E. RANSICK AWARD OF EXCELLENCE
ROBERT R. WRIGHT, 11/ Given in recognition of extraordinary service to the legal profession.
OUTSTANDING LAWYER-HUMANITARIAN W CHRISTOPHER BARRIER To recognize outstanding humanitarian service. JAMES H, McKENZIE PROFESSIONALISM AWARD JAMES H. McKENZIE Recognizes sustained excellence through integrity, character and leadership to the profession and the community which garners the highest honor to the legal profession. SPECIAL AWARD OF MERIT FOR DISTINGUISHED SERVICE TO THE LEGAL PROFESSION JOHN J. WATKINS OUTSTANDING LOCAL BAR ASSOCIATIONS PULASKI COUNTY BAR ASSOCIATION SEBASTIAN COUNTY BAR ASSOCIATION WASHINGTON COUNTY BAR ASSOCIATION Recognizing outstanding activities which enhance the position and standing of the legal profession. ARKANSAS BAR FOUNDATION WRITING AWARDS LEGAL WRITING
GENERAL WRITING
Judge Victor A. Fleming "Amendment 80's District Court - Let's Make It 'Cricket' This Time, Parts I and II"
Attorney General Mark L. Pryor "Why We Need Hate-Crime Legislation in Arkansas: Stopping Bias-Motivated Violence" The Arkansas Lawyer Spring, 2001
The Arkansas Lawyer Fall, 2001
The contents of this report reflect activities of the Arkansas Bar Foundation from July 1, 2001 through Apri/30, 2002.
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Donors The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of memorial gifts, scholarship contributions, honorariums and other donations to the Foundation during the 2001-02 year. This list represents gifts, not including pledge and Sustaining Fellow payments, received from July 1, 2001 through April 30, 2002. We thank you for your support.
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r \
Bill and Kay Allen
Patti Marks
Nancy Bailey
Marshall & Owens, P.A.
W. Christopher Barrier H. David and Suzanne Blair Judith Boaz Judge Ellen Brandey
Steve and Berty Matthews
Buzz and Cissie May Carol Ann Mclamb Jim and Sally Mclarty Virginia Mitchell Judge James M. Moody Frank Morledge R. Overron Inn of Courr, Pulaski County William Deede Phelps Hoyte and Ann Pyle John, Kathy, Matt and Kelly Ransom
John and Barbara Breen
Mary Brown Phil and Diane Carroll Leon and Roxanne Caclen Judge Jerry and Sandy Cavaneau Mr. and Mrs. Murray Claycomb LaDonna Cleveland David and Lynn Coates
Rebsamen Insurance
Cathi Compton
AI and Elizabeth Robertson and Family
Judge Roberr and Ann Dawson
Charles B. Roscopf
Mr. and Mrs. Jack C. Deacon
Judge Elsijane Trimble Roy
Philip E. Dixon Mr. and Mrs. Winslow Drummond Helen L. Eichenbaum
Dennis and Jane Shackleford
Mr. and Mrs. Byron Eiseman, Jr.
Jim Shaver
George D. Ellis Oscar and Frances Fendler
Patricia Shifflett
David and Karen Samuel Sharp & Sharp, P.A.
David Solomon
Justice John and Annis Fogleman
Jackson T. Stephens
Martin and Berry Gilberr Mr. and Mrs. John Gill
Judge John and Marietta Stroud, Jr. Ray and Jan Swetenburg
Judith Gray
Diane Sydoriak
Donis B. Hamilton
Barbara Tarkington
Margaret Hatchet[ Richard F. Hatfield Don and Leslie Hollingsworth
Hilda Thomas Michael Thompson
Dr. and Mrs. Ernest Holt
Judge William R. Wilson, Jr.
Ginger Holt
Mark Wilson
Margaret, Jane and Jack Holt
Beth Wilson
Jack Wilhelm
Edwina Iacovelli
Wilson & Associates, PLLC
Justice Annabelle Clinton Imber
Warner, Smith & Harris, PLC
Perry and Kathy Johnston
Dr. Roberr R. Wright
LeCotton Thomas & Company
Judge Susan Webber Wrighr
Ledbetter, Cogbill, Arnold & Harrison, LLP
Mr. and Mrs. David Young
Mrs. Floy Plunkett Luppen
Mr. and Mrs. Paul B. Young
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2001-02 BOARD OF DIRECTORS Officers
President Vice President Secretary- Treasurer
Thomas L. Overbey Teresa M. Wineland Timothy R. Tarvin
Little Rock EI Dorado Fayetteville
John C. Gregg Lucinda McDaniel Stanley R. Langley
Batesville Jonesboro Jonesboro
Ike Allen Laws, Jr. David B. Vandergriff Michael H. Crawford
Russellville Fort Smith Hot Springs
Thomas L. Overbey Tim Boe Steven T. Shults
Little Rock Little Rock Little Rock
Ed W. McCorkle Teresa M. Wineland William Kirby Mouser
Arkadelphia EI Dorado Pine Bluff
Martin G. Gilbert Timothy R. Tarvin Katherine C. Gay
Bentonville Fayetteville Fayetteville
Eastern Bar District
2002 2003 2004 Western Bar District
2002 2003 2004 Central Bar District
2002 2003 2004 Southern Bar District
2002 2003 2004 Northern Bar District
2002 2003 2004 Ex-Officio
Donis B. Hamilton, Immediate Past President, Arkansas Bar Foundation Charles B. Roscopf, Chair, Trust Committee Sandra Wilson Cherry, President, Arkansas Bar Association
Arkansas Bar Foundation Committee Chairs Trust Charles B. Roscopf
Investment John Robert Graves
Special Projects John F. Stroud, Jr. Awards Thomas L. Overbey
Audit David M. Powell
Building Russ Meeks
Writing Awards Timothy Watson, Sr.
Foundation Staff Ann Dixon Pyle, Executive Director Joyce Bobbitt, Administrative Assistant
Redistricting Teresa M. Wineland
this piece is abstracted. Lawyers, judges and mental health professionals who deal with child custody issues should think carefully and respond judiciously when claims based on either theory are advanced. More generally, far greater interdisciplinary training and competence in sciemific methodology are needed. These should be brought to bear whenever a new assertion is made that~ if accepted, will shape the interpretation or application of family law principles (for example. the concept of a child's best imerest). Although the use of expert testimony is often useful, decision-makers need to do their homework rather than rely uncritically on expercs' views. This is particularly true in fields such as psychology and psychiatry, where even experts have a wide range of differing views and professionals. whether by accident or design, sometimes offer opinions beyond their expertise. Lawyers and judges are
trained to ask the hard questions, and that skill should be employed here. The first question is whether sciemific sufficiency has been indicated by respected professionaJ vetting, for example, inclusion in the American Psychiatric Association's DSM-IV or the World Health OrganIzation's ICD-IO. Where no such imprimatur exists, one must ask whether approval has been sought and denied or whether submission would be premature. lnsighcs that are roo new, or for which no established gold standard exists, may nonetheless be valuable, bur their probity and limitations should be clearly understood. This can be accomplished by inquiries into rhe sample (if any) on which the theory is based, the methodology and assumptions affecting the collection of data. how conclusions have been drawn from the dara, the likelihood that fair extrapolations can be drawn, the degree to which
assertions are internally consistent and compatible with established knowledge. and the balance of potenrial benefits and harms if the insight later provides unsound. The chalJenge is to bring professional skills and standards to the task: an unbiased mind, healthy skepticism, rigorous thinking and sound policy analysis. Bur JUSt as the responsibility is great, so toO is the opportunity. As the noted legal philosopher Jerome Frank put it,
Parental Alienation Continued on page 42
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IT'S TIME TO MAI<E JURY INSTRUCTIONS UNDERSTANDABLE By Bettina E. Brownstein, Wright, Lindsey & Jennings LLP ury instructions are roo difficult and are thus uninrelligible to a large portion of jurors. They are poorly worded, and their meaning is arcane. Ycr, there is no reason they easily cannot be simplified, and there is no justification for not doing so. It is my opinion that they should be rewrirren to take into account the average literacy level of the Arkansas adult population, as well as its lack of familiarity with legaJese. This should increase the possibility that a larger percentage of a jury will actually understand the law it is charged with applying. It cannOt seriously be gainsaid that jurors, in order to validly apply the law to the evidence of a case before them, need to understand the law, which is conveyed through the instructions given by the judge. No one disputes rhe importance of intelligent deliberation by jurors, but if even some jurors do nor comprehend the instructions, inrelligent deliberation by the entire jury is impossible. Lack of jury understanding raises suspicion about the fairness of trials and calls into question the whole jury system and its basic premise-that laypersons, peers of those before them, will thoughtfully and dispassionately apply the law to resolve disputes in favor of rhe deserving party. Other institutions concern themselves with the readability of documenrs meanr to be read and understood by the general public-for instance. hospitals and the military. The Centers for Disease Control (CDC) publishes information for the medical community aimed at improving the readability of materials used in conducting human subject research.! The Air Force takes pains to
J
About the Author Bettina E. Brownstein is a partner with Wright, Lindsey & Jennings LLP. Her publications include: State-by-Stale
Survey of Statutes of Limitations and R~pose, American Bar Association (1997); Stllte-ByStat< Analysis Of Legal Isslles Affecting Architects, Engineers, Contractors, and OWll~rs, Aspen Publishers (publication pending). She has been an instructor at the University of .........- Arkansas at Little Rock Bowen School of Law and a SpeciaJ Judge in the Pulaski Counry Circuir COUrt.
24 TI1C Arkansas la\\ycr
www.arkbar.com
make its technical instruction manuals understandable to airmen. 2 Many experts suggest that writings designed for public consumption be pitched ro a 1Dth-grade level; others argue that 6th grade is even better} The desired norm appears ro be an 8th- ro 1Dth-grade level. 4 Drafters of jury instructions, however, have paid scanr attenrion ro readability, being more concerned with the instructions' accuracy and comprehensiveness. Both lawyers and judges wanr ro ensure that an instruction accurately and fully explains the legal proposition it sets forth and thus avoid reversal by an appellate courr. Once an instruction has the appellate imprimatur of approval, it becomes gospel and subject to conrinued use without the slightest change, not to mention simplification. As a result, the instructions end up being written on a difficulty level equal ro the Hanmrd Bwiness Review-when they should be on a par with Sports Illustrated. No wonder they exceed the grasp of many, if not mOSt, jurors. In search of objective confirmation of my hunch that jury instructions are roo difficult, I applied several widely accepted readability formulas to Arkansas' and the Eighth Circuit's model jury instructions. These included the Fry graph, developed by Edward Fry when he was affiliated with the Rutgers University Reading Cenrer. 5 Other formulas consulted were SMOG, FOG. Flesch, Flesch-Kincaid and Linsear Write. 6 SMOG, which stands for "simple measure of gobbledygook," is used by the CDC among ocher institutions. Harold McGraw, an educator with the Baltimore County, Maryland schools, developed it. FOG is the brainchild of Robert Gunning, who conceived this index ro take the "fog" Out of writing. Linsear Write is used by the Air Force. Rudolf Flesch developed his formula in the 1940s and received a Ph.D at Columbia University for it.? The Flesch-Killc.1id test is offered by Microsoft Word as a tool for users. These formulas correlate the wriring's degree of difficulty with grade level. Mainly, they rely on ratios of words per senrence, senrences per paragraph and multi-syllabic words per senrence. Flesch claims that his was the first formula to rely on senrence and word length and is based on how the human mind works. According to him, the longer the word and the sentence, the more menral work is required of readers because longer words and sentences are more likely to be complex, to use suffixes and prefixes, and to contain more prepositional phrases and subordinate c1auses. s
After calculating the reading level of the jury instructions, I researched literacy profiles for Arkansas and the nation and compared these literacy levels with the grade level of the instructions. I found my suspicion confirmed: Jury instructions were written above the reading capability of most Arkansans. The formulas I used all show that the level for Arkansas' and the Eighth Circuit's jury instructions hovers around the 12th grade. In actuality, I believe this underestimates their difficulry because mere syllabic. word and sentence counts do not address the instructions' specialized subject manee. L1wyers study three years beyond college co master the concepts and terminology we expect ordinary citizens
assessments are unreliable: While jurors profess to comprehend instructions, further questioning reveals that rhey do nor. 12 (There probably are [VIO reasons for this: Peoplc dislike admitting that they arc not skilled in their native tongue, and they may not realize thar they are misinterpreting the meaning of the words used. In other words, they think they understand when they do not.) This conclusion was reinforced by candid comments I elicited from thc former jurors I interviewed. For instance, jurors apparendy disregard the definition of "proximate cause" and interpret it to mean "approximate cause." This should nor be surprising. Those of us who remember our early law school days would do well to
Once an instruction has the appellate imprimatur of approval, it becomes gospel and subject to continued use without the slightest change, not to mention simplification. As a result, the instructions end up being written on a difficulty level equal to the Harvard Business Review -- when they should be on a par with Sports Illustrated.
,
to grasp and apply virtually instantaneously. The unfamiliarity of the general public with legal concepts makes comprehending the ideas embodied in the instructions even more elusive. Adult literacy estimates for the United States, based on the 1990 census, show that 21 percent of the population have basic or "level one" reading and writing skills. Twenty-six percent possess "level rwo" skills. 9 These levels are prose levels. "Prose level one" requires me reader ro locare and match a single piece of information that is identical ro, or nearly identical ro, the information given in the rext. "Prose level [WO" requires me reader to locate one or more pieces of information from the text and to compare and contrast information. "Prose level three" requires readers to search the text to match information and make low-level inferences. "Prose level four/five" measures how well readers perform multiple-feature matching, use specialized knowledge, and make rexr-based inferences from more absrract rext sources. While literacy statisrics for Arkansas have nOt been compiled, census information concerning grade-level attainment by Arkansas adults indicares that literacy estimates for Arkansas aduJts would not be higher and, in Fact, may be worse than the national average. IO Approximately 14 percent of Arkansans have less than a 9th-grade eduC3rion; 19 percent have benveen a 9rh- and 12thgrade education; 33 percent have a high school diploma; and 19 percent have some college education, bur no degree. I I If more than "level two" skills are necessary to understand and apply the pattern jury instructions, then a majority of Arkansans, because they perform at "level one" or "levellwO," do not have these skills.
reflect on the time we spell( mastering legal vocabulary and the conceprs differenr words signified. To expect a layperson, even an educated one, to grasp sophisticated legal doctrine as reflected in terms like "proximate cause," "negligence" or "wil1ful and wanton" (I could go on and on), especially after only one reading of the instructions, is unrealistic. 13 I spoke with the Honorable David B. Bogard, Pulaski Counry Circuit Judge, who, as a member of the Arkansas Supreme Courr Committee on Jury lnstructions, participared in drafting the Arkansas Model Jury Insrructions, Civil, and the Honorable James M. Moody, District Judge of the Eastern District of Arkansas, and a member of the Commitree on Model Jury Insrrucrions for the Eighth Circuit. They express doubts abour juror comprehension. Both judges have many years of experience as trial lawyers and jurists. Judge Moody voices concern that a portion of the jurors do nor understand the instructions, and that because of this, those jurors who do understand playa disproportionarely dominant role in deliberations. This, he does nor believe, is a desirable outcome, since all jurors should participare equally in the process. Judge Bogard states flatly that he does not think jurors understand certain instructions, such as the Arkansas Model Instruction on comparative negligence. He acknowledges thar scanr attention is paid to juror comprehension. Committee members, who are judges and lawyers, are preoccupied solely wirh authoring correct and comprehensive statements of the law. One of the foundations of our legal system, and a cherished notion, is that of juries deciding the fate of litigants based on the
If a 12th-grade education is needed to understand and apply them, then the 33 percent who have a 12th-grade education or less do not have necessary skills. Asking jurors is nor a sufficient means by which to determine whcther they undersrand rhe instructions because the answers are apt co be misleading. Surveys of jurors reveal thar their self-
law as applied to the evidence. The specter of juries finding defendants guilty of crimes, defendants liable for sums of money under civil law, or plajntiffs denied recovery based on a faulry comprehension of the law is deeply disconcerting-as is the idea thar a portion of every jury does nor participate in deliberation because they do nor understand the instructions. Others have Vol. 37 o. 41Fall 2002
The Arkansas tal'Y"r
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While literacy statistics for Arkansas have not been compiled, census information concerning grade level attainment by Arkansas adults indicates that literacy estimates for Arkansas adults would not be higher and, in fact, may be worse than the national average. Id. Id. subject, complete with real and mock jurors. questionnaires, videos 5 K.Schock, "Kathy Schock's Guide for Educators, and plenty of analysis. These studies and writings uniformly h up:11 school.discovery.com/schockgu ide/fry/fry.htm I, 1995-2000; Fry, Edward, "Elementary Reading Instrucconclude that (1) juries' understanding leaves much ro be desired, 14 and (2) jury instructions ought to be simplified. A5 a result, in tion." N.Y. McGraw, 1977) at least some qU3ncrs, a plain language movemem has developed; 6 "Is Your Consent Form Understandable to People Who Don't Have a PhD from MIT''' hrrp:llwww.med.mun.cal however. this efron primarily focuses on criminal jury 15 insrrucrions. This movement has nor come to Arkansas. or hie/Readability.htm; Snider, supra note 2. apparently to me Eighth CircuiÂŁ. 7 R. Flesch, "How To Write Plain English," http://www.mang.Canterbury.ac.nzJcourseinfolAcadem icW A remedy to the problem in Arkansas, however, is nor fancy, riting? Flesch.htm. difficult nor our of reach. First, the Eighth Circuit and Arkansas Supreme Couns need ro consider readabiliry when drafting 8 Id. instructions. Parrern jury instructions, and indeed all instrunions ational Cenrer for Educational Statistics, U.S. Depr. of 9 given to the jury. should be rewritten to a lower grade level. Education, TIJ~ Condition ofEducation, 1997. Presently, the comminees appointed by the courts (0 develop jury 10 Adult literacy estimates for Arkansas prepared by Portland instructions are entirely comprised of lawyers and docrors. State University based on 1990 census data assign 22% at Certainly, one way ro improve readabiliry would be ro include Level I and 56% at Levels 1 or 2. Portland St. Univ. 1996. II UALR, Institute for Economic Advancement, Arkansas laypersons and reading specialists on these committees. The role of the lawyers and judges would be ro ensure that the instructions State Social Statistics, 6/04/0 I. correctly express the law. the role of the lay persons would be ro 12 American Inns of Coun, Little Rock Chapter, jury ensure that non-lawyers can understand them, and the role of the Questionnaire, 2002; B. Saxton. "How Well Do Jurors reading specialist would be to assist both groups so that the Understand jury Instructions? A Field Test Using Real instructions are accurate and comprehensive, yet readable for as jurors and Real Trials in Wyoming," Wyoming \\7nur find many jurors as possible. UJlld R-v., 1998. (This article has a Flesch-Kincaid readability grade level of 12.) â&#x20AC;˘ 13 This raises the question as ro whether simplifying the instructions is solely a maner of changing the definitions of END OTES the legal terms, or also of simplifying the terms themselves. I D. Snider, Jr. M.D., M.P.H., CDC, Associate DirectOr for For instance, should the usual terms, such as "proximate Science "Human Subjects Research," hrtp:ll\vww.cdc.govl cause" and "willful and wanton," be used with altered od/adslsmog.htm. definitions. or should these be discarded in favor of other, 2 "Readability Helps the Level," hrtp:llwww.csun.edu/more familiar ones? I favor the Iarrer approach. 14 B. SaxtOn, "'pra nOte 12; "Federal Judges SimplifY Jury Instructions," 68 A.B.A.J. 1066 (Sept. 1982); S. Burgess, "jurors Ignore, Misunderstand Calif.-Why do some lawyers drowning in debt to earning Gtl Mo~ ClitnlS 10 A MODlb Instructions," 81 A.B.A.J. 30, (May 1995); gel rich while others struggle 10 $300,000 a year, practically Thad You Now Gtl All Ytar!" J. McElhaney, "When Jurors' Eyes Glaze pay their bills'! The report shows how any lawyer overnight," he says. "That's simple," says Mosl lawyers depend on can use this markeling system 10 Over, They're Telling You Something," 81 California attorney Davkl M. referrals, he noles, but nOI one in get more clients, increase their A.B.A.J. 91, ( ovember 1995); M. Ward. "Successful lawyers know 100 uses a refeml system. income, and buikJ a successful law praCIK:e. how 10 market Iheir services." ~Without a syslem. referrals are Higgins, No, So Plain English, 84 A.B.A.J., Arkansas lawyers can get a Once a struggling sole unpredtetable. and so is your Uune 1998). FREE copy of the "'po<! by pntClitioner, Ward credits his income," he says. 15 M. Higgins, snpra note 14. turnaround 10 a referral marketing Ward has taught his referral calling 1-800-5624627 (a 24-
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Old Dog
Articles of Incorporation The undersigned acting as incorporators of a corporation under Itle Arkansas Business Corporatioo Act (Act 958 of 1987). adopt the following Articles of Incorporation of such Corporation: First:
The name "th. COlp"'lll,"
~
\AQ'ne Company MWiI tonUin 1hI ~ "COlpot"ltion", 'IncDJ1lOl"Wd", "C0lIlpmy'. "l.illUU6", orth,1Ibbrnietton "COl'p,", ·Inc.'. ·Co~· ","Ltd," orororlb: Of .bbrtvillliom oIlib iIIlporL in anolhM lln(lol&ll.
New Trick Now, there is a faster, easier way to file corporation documents in Arkansas. The Online Filing System for Corporations, or OFS, was developed by the Secretary of State's office to promote electronic government 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's available: • Articles of Incorporation for Domestic, Foreign, LLC, and Non-Profit Entities • Registration of a Fictious Name for Domestic, Partnership, and LLC Entities • Registration of a Corporate Name for Domestic and Foreign Corporations • Domestic Corporation Franchise Tax Registration
www.sosweb.state.ar.us © 2001, Information Network of Arkansas.
www.accessArkansas.org
Si~nifil~lI1t Dccisions 01 thc Suprcmc Court 01 Arkansas SponsoT(!d by til' ArknllslLf SUpT(!l1I< Court Histoncal Soci~ty, Inc.
Cobb v. Parnell March 9, 1931 By Mort Citelman In modern times everyone is quite used to the idea of using public money to encourage economic development by private enterprise. State and local governments invest tax monies to build industrial parks, subsidize job-producing industries, build stadiums to lure sports franchises, create enterprise and empowerment zones, and issue bonds [Q enable expansion of private business activities. This practice did nor always prevail. In the period after the Civil War, states erected a "wall of separation" between the public and private sectors of the economy, and many state constitutions enacted or amended in the 1870's and thereafter prohibited public investment in the private sector. The Arkansas Constitution of 1874 is typical of the strict separation of the public and private sectors. In Article 16, Section I, our Constitution provides: "Neither the State nor any city, county, rown or other municipality in this State: shall ever loan irs credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness. ..." Our of mis provision grew the bedrock constitutional principle rhar public money could nor be used for private purposes, but only for public purposes. What influenced this principle was the experience in many states of me questionable practices of many railroad companies seeking public investment in the extension of their lines. Almough public subsidies to railroads were common in antebellum decades, during me rapid expansion of local rail lines after rhe Civil War, many companies sent out advance men to sell railroad srock and bonds to cities and towns in exchange for promises to run the lines through those places. Often the railroads would either build elsewhere or go into
28 n,e Arkansas Lawyer
www.arkbar.com
receivership, and the public would be stuck with worthless bonds or stock. Municipal bankruptcies were common and many states saw their treasuries looted by the rapacious rajlroads. In most states, inclucling Arkansas, the principle that public money could only be used for public purposes was strictly applied. In 1931, however, the Arlcmsas Supreme Coun essentiaJly abandoned me principle. The case was Cobb v. Pnnt"~ 183 Ark. 429, 36 S. W.2d 388. This case represents a sharp turning point and was decided by a 4路3 vore. What was Cobb about? The onset of the Creat Depression dealt Arkansas and the Midwest a double blow. In 1930 nearly twO dozen states in the central United States suffered the mOSt severe drought seen in many decades. Virtually all the crops failed, and the corron crop-a crop usually resistant to droughtwas less than 50 percent of the normal yield. Due to the drought and to the great stock market crash of 1929, more than 100 banks in Arkansas, including the state's largest, failed, and closed their doors during a threemonth period in 1930. Farmers throughout Arkansas, and many other persons were literally ar the edge of starvarion. The nnly relief available was the Red Cross, and a large number of citizens were entirely reliant on the Red Cross for subsistence. In one county 20,000 our of a population of 22,000 were on relief. Although widespread starvation was avoided, undernourishment and malnutrition prevailed mroughout the state. When the General Assembly convened on Jan. 12, 1931, rhe problem of the F.u-m distress was high on the agenda. Very quickly the legislature passed, and Governor Parnell signed, Acts 10 and 34, the acts challenged in the Cobb case. Acr 10 was approved on Feb. I I, and Act 34 on Feb. 18. The statutes created a state agricultural credit board, empowered to issue $1.5 miUion in bonds secured by rhe full faith and credit of the state, for the purpose of making loans to farmers and stocknlen. The acts also levied a general one-half mill tax to retire the bonds, and, in order to have immediate funds pending sale of [he bonds, authorized the transfer of $1.5 million from
the highway [[us< fund to the credir of rhe new board (upon sale of the bonds rhe proceeds would be rerurned to the accoum of rhe highway department). These aas were immediately challenged on constitutional grounds. The courts acted quickly. Chancellor Dodge in the Pulaski Chancery Court upheld the staJUtes; the case was appealed, and the Supreme Court opinions
were issued on March 9. 1931, less than a month after the enactments. The majority opinion. written by Justice Buder, acknowledged the principle rhat public money could not be used for private purposes; he also discussed rhe leading cases from ocher jurisdictions char upheld the principle in factually similar circumstances. The leading case "on all fours" was from Kansas, 5tau v. Osmvk~~ 7Ow1lship, 14 Kan. 418, 19 Am.Rep. 99. The Supreme Court of Kansas held that a statute appropriating money (0 be loaned (Q farmers after a drought year to enable the purchase of seed to planr a new crop was nor for a public purpose. Another seed grain case from Minnesota also held the same way. Justice Butler, however, found cases from Alabama, South Carolina and North Dakota holding mat me rdief ofcalamities following natural disasters was a public purpose. He was obviously impressed with the North Dakora case, where mat state's supreme court wrote that "legislation in aid of dcS[irute farmers will serve to illustrate the well-known fact that legislation under the pressure of a public sentiment, born of stern necessity, will adapt itself to new exigencies, even if in doing so a sanction is given to a broader application of elementary principles of government than have before been recognized and applied by the courts in adjudicated cases." Burler posed the issue: "The question presented for our consideration is this: Is the purpose and effect of the act now before us a loan by the State of irs credit to foster individual enterprises, or is it one which has for irs end the accomplishment of a purpose which will secure the State from a general threatened evil and promote the welfare of its cidzens?" He concluded: "We mink me
Historical Society Continued on page 31
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Jurisdiction Continued from page 17 cusrody action by the abductor-parent In Careful compliance with Ilocice requirements is important so mat the child custOdy determination will be entitled to registration and enforcement under UCCjEA and PKPA.
another S[3rc.
me
8. How should a d~cision to give Full Faitb and Credit to an order of custody from anoth" staU be nuuk a"d by whom?
or visitation through the order. Norice is to be served on those persons named to allow
9. Must an out-ofstate order be a final order to be recogniud?
them an opportunity ro conresr registration of rhe foreign order.
The notice must
No.
A «child custody determination
inform them that to contest the validity of
means a judgment, decree, or other order of
the foreign order they must request a
a court providing for me legal custody,
hearing wimin 20 days after service of me
physical cusrody, or visitation wim respect
notice. and that failure ro contest the
ro a child. The term includes a permanent,
registration will preclude humer COntest of
temporary. initial, and modification order."
the out-of-state determination.
(ACA § 9-19-102(3))
To contest
the registration, a person would have to
Enforcement of foreign child custody
establish one of the following: I) that the
determinations is not a self-help process. The first step for recognition of an our-ofstate child custody determination is to make a request co register a certified copy with rhe appropriate circuit court, along with a statemem under penalty of perjury that ro the best knowledge and belief of the person
issuing court did nor have jurisdiction under
seeking registration the order has not been modified. Unless excepted because of the
the UCCj EA. or 2) that the determination
10. 01lce a" out-ofstate order is regi.steret4 wbat else call a court do beside giving it Full Faith alld Credit?
sought to be registered has been modified, vacated or stayed by a Court having
When an oue-of-state order has been
jurisdiction to do so under the Act, or 3)
registered, the court may grant any relief
that the person contesting registration was
normally available under state law to enforce
entitled ro notice under the Act, but that
the order. The UCCj EA also provides an
notice meeting the requirements of ACA §
expedited enforcement procedure, which
9-19-108 was not given in the proceedings
provides for a judicial hearing the next court
safety of the child or a party, the request for registration must also include the names and
which resulted in the order.
day after service, and relief including
request for a hearing is made, registration of
immediate physical custody of the child,
addresses of the declaranr and of any parenr
the order is confirmed as a matter of law,
attorney's
or person acting as a parem who has cusrody
and all persons served must be so notified.
enforcement. (ACA § 9-19-308)
If no timely
fees
and
help
from
law Other
relief may include issuing a warrant co take physical custody of the child based on a verified petition and testimony that the child is likely to suffer immediate physical
ELECTRICAL ACCIDENTS
harm or ro be removed from the state. The warrant is directed co law enforcement officials, who must serve the petition, warrant and order on the respondent
Paul D. Mixon, Ph.D., P.E.
immediately after taking the child into
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custody. The petition must be heard on the next judicial day after execution of the warrant.
(ACA §
9-19-311)
In
an
enforcement action, the prevailing parry is entitled
to
reasonable
attorney
and
investigative fees, COSts. travel and child care expenses and COsts. (ACA § 9-19-312)
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.
This overview of the statutory scheme should pur every lawyer on notice that custody decrees in every case must be crafted with a view toward future disputes that might involve courtS of other states. ENDNOTES I Bruner v. Tadlock, 991 S.W.2d 600 (1999). Decided under the definition in
30 l1le Arkansas La~'er
www.arkbar.com
Jurisdiction Continued from page 30 rhe repealed UCqA, bur the relevant wording is rhe same in rhe UCqEA. 2 Arkansas Dept. of Human Services v. Cox, 349 Ark 205 (2002). 3 Furstenburg v. Fursrcnburg. 591 N.W.2d 798 (S.D. 1999). 4 The language in this section djffers from the comparable section of the repealed UCqA. The Arkansas Supreme CoUll rejected a claim of unjustifiable conduct in Arkansas Depr. of Human Services v. Cox, 349 Ark 205 (2002).
WR.IGHT R.E ElVES HO OR. AT AR.KA SAS BAR. ASSOCIATION
A
UAL MEETI G
Historical Society Continued from page 28 need is grear, and the means for its relief bur a use of the credit of the srate for its own protection. as, protecting irs citizens from famine and disease. it protects irself, and the aid extended is for 3 public purpose. The pcorccrion of irs citizens from danger of whatever kind is the dury of the srate, and in this case the measure is bur a valid exercise of police power, and the means employed find ample jusrificarion in the maxim, 'The safery of rhe people is the highest law.' â&#x20AC;˘ hief Justice Hart began his dissenting opinion with the statement: "It seems ro Judge Smith, Judge MehafIY, and me rhar this is a case which calls for the application of the old and often quoted maxim that hard cases make shipwreck of the symmetry of the law." The dissenters acknowledged iliat under the constitution the: legislature "might make an appropriation of the public money for those who may now be properly classed as poor persons," bur they believed that the challenged acts did not fall into the category of poor relief. Rather, it was a loan of credit to privare individuals to "prevent them from becoming a charge on rhe public." Since the Cobb case in 1931, OllT notions of whar is a public purpose have undergone a sea change. Today, we discuss whether the State of Arkansas can come up with enough financial incentives to lure an automobile assembly plant to locare in the state. AJI over the counrry
me
ROBERT R. WRIGHT, III C. E. RANSICK AWARD OF EXCELLENCE
Givm in ncogl1ilion ojtxtrllordinary In-viu to Dr. Robert Wrighr teceived rhe C.E. Ransick Award of Excellence In recognirion of his extraordinary service to the legal profession at the recent Annual Meeting of the Arkansas Bar Association. Dr. \'(fright has distinguished himself in service to the practice of law at every level. After starting as a private practitioner in Forrest City, his legal career turned to academia where he became one of the national experts on land use law. He served as a Professor of Law and Dean at the University of Oklahoma. Dr. Wright also served as a Professor of Law and ultimately held the chair as the Donaghey Distinguished Professor of Law at the UALR Bowen School of Law. His love for the Arkansas Bar Association and the Arkansas Bar Foundation ultimately manifesting itself by his painstaking and carefully written history of the Arkansas Bar in his most recent authored work, Old &~ds in Ib~
Nnu Land¡ A History and Rnninijulluj oj th~ Bar ojArkamns. Among his other
th~
kga/ proJmion.
rhe 1998 Arkansas Bat Association Form Book for practitioners. Dr. Wright served both rhe Arkansas Bar Association and American Bar Association in a number of capacities over the years. He was Chair of the General Practice, Solo and Small Practitioners Section and a former member of the House of De1egares of the American Bar Association. He served his state bar as a member of the House of Delegates and Executive Council. Dr. \'(Iright is a Fellow of the Arkansas Bar Foundation, a Fellow of the American Law Institute and a former Academic Fellow of rhe American College of Trust and Estate Counsel. Whether as an academic, a figure in n3[ional bar politics, the author of a widely used rexrhook, the Dean of a prestigious law school or a member of a city planning commission, his emire career has been dediclted to [hose who practice law and represent the legal interests of people.
significant writing endeavors was editing
Historical Society Continued on page 44 Vol. 37
o. 4/Fall 2002
TI,e Arkansas 1A\\)'er
3\
ludici:J1 Advisory Opinions ADVISORY OPINION 2002-06 UUNE 27, 2002)
The Arkansas Judicial Ethics Advisory Commirtee issued an advisory opinion to Circuit Judge David Goodson of Paragould. Arkansas. He requested an opinion as to whether his wife may work either as a paid employee or volunteer in the political campaign of a candidate seeking election ro a statewide office. The opinion states that the Code of Judicial Conduct places clear restrictions on a judge. A judge may not publicly endorse or publicly oppose a candidate seeking election to office. Canon 5 (A) (1). A judge may not identify himself as a member of a political party. Canon 5 (F). In addition, the judge must encourage members of the candidate's family to adhere to the same standards of political conduct. Canon 5 (A) (3). The context of that language suggests that in the course of judicial campaigns, the candidate must encourage his relatives ro behave in the same fashion. The Committee further stated that the issue here is whether the Code bars a spouse from participating in a non-judicial political
32 TI1C Arkansas La~"Ycr
WVv'IN.arkbar.com
campaign. We note that the Commentary to the Code states that family members are free to panicipate in other political activiry. Further it is questionable whether authority exists to bar relatives, who do not serve as public servants, from political life. The Committee concludes that the spouse of a judge is free to participate in other political campaigns. The participation may be on a paid or on a voluntary basis. However, the spouse should make all efforts to avoid any suggestion or hint mat the judge is supponive of a candidate. ADVISORY OPINION 2002-07 (SEPTEMBER 4, 2002)
The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion [0 Judge John R. Scott of Bentonville. Arkansas. He requested an opinion whether ethical improprieties might arise from a proposed reassignment of cases in Divisions IV and V of the 19th Judicial Circuit West of Benton County, Arkansas. Judge Scoer specifically asked if he and Judge Xollie Duncan, who joined him in requesting the opinion, could ethically direct the circuit
clerk to effectuate the transfer of cases once he and Judge Duncan exchange positions on January I. 2003. The opinion States that the proposal seems compatible with Administrative Order o. 14 of the Arkansas Supreme Court. which reads in part: The creation of divisions shall in no way limit the powers and duties of the judges as circuit judges. Judges shall not be assigned exclusively [0 a particular division so as to preclude them from hearing other cases which may come before them. The Committee stated that they saw nOthing in the proposed reassignment of cases which, in the opinion of the committee, would impinge on the Code of Judicial Conduct. However, the issue is,the committee believes, essentially a matter of judicial administration rather than judicial ethics and would, therefore, exceed the purview of the committee.
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include Natural Resources, Labor & Employment, Law Day Ethics, Environmental Law, Workers' Compensation, Bankruptcy, 5th District Trial Practice, Tax Awareness, Intellectual Property,
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For more information, contact Virginia Hardgrave, Arkansas Bar Association, 800-609-5668,
501-375-3957, yhardgrave@arkbar.com OR CHECK OUT THE CLE PAGE at www.arkbac.com
Vol. 37 No. 4/FaIl 2002
The Arbnsas La,')'er
33
Lawyer Disciplinary Actions Final actions from June 1 through September 16, 2002, by the Commince on Professional Conduce. Summaries prepared by the Office of Professional Conduct. Full text documents available on-line at h trp://courtS.state.ar. us!couns!cpc.hunl. SUSPENSION: CHARLES GREGORY ALAGOOD, of little Rock, Bar No. 84002, in epe No. 2002-011, on September 16, 2002, was suspended for three (3) years, on discipline by consent, on a self-referral for violations of Model Rules 1.15(a) and 8.4(c) arising out of his dealings with his client Betry Gray in 2000-200 I. Mr. Alagood received a rotal of $57,500 as an advance for legal fees and costs, did nO[ deposit these funds in a trust account, and commingled them with petsonal funds. Using a power of attorney, Mr. Alagood also withdrew $25,000 and $6,000 from Ms. Gray's personal account in October 200 I, without her knowledge or permission. All sums were restored to Ms. Gray in November 200 I. Mr. Alagood voluntarily withdrew from the practice of law as of January I, 200 I, and fully cooperated with the Office of Professional Conduct in the investigation of this mattet. RANDALL WAYNE DIXON of Dardanelle, Bar No. 83052, in epe No. 2001-132, on June 3, 2002, was suspended for one (1) year on complainrs from Circuit Judge Paul Danielson and Jeremy Boze for violations of Model Rules 1.\, 1.2(a), 1.3,
1.4(a), 3.4(c) and 8.4(d). Boze retained Dixon as counsel in a felony theft case. A jury trial resulted in a lengthy probation and an amount of restitution to be set by the court if the panies could not agree. The State made an offer of $30,000 to Dixon but the offer was never communicated to the client. The matter was set for hearing and Dixon failed to appear. The hearing resulted in an order by the court fixing restitution at $66,500. Boze thereafter contacted Dixon, who advised him nor to pay the restitution for several months, almost resulting in a revocation petition being filed by the probation office. Dixon failed to respond to the Commirtee's complainr. [Dixon's surrender of his license was accepted by the Supreme Court on May 16, 2002.] RANDALL WAYNE DIXON of Dardanelle, Bar No. 83052, in epe No. 2001-136, on June 3, 2002, was suspended for six (6) months on a referral from Circuit Judge Paul Danielson for violations of Model Rules 1.\, 1.3, 3.4(c) and 8.4(d). Dixon represented Mr. Curtis in Scon County Circuit Court on a criminal charge that was set for pre-trial on July 30, 200 I.Dixon failed to appear without being excused Ot an excuse, although his client was present. A contempt hearing was set for November 5, 200 I, at which Dixon appeared, was found to be in contempt, and was fined $50.00. RODNEY P. OWENS of Bentonville, Bar
Business Valuations Comprehensive TechnicaJ Expertise in Business VaJuations, Forensic Accounting, and Consultations fot Trial Testimony Certified Public Accountant (CPA), Master Certified Business Appraiser (MCBA), Accredited Senior Appraiser (ASA), Accredited in Business Valuations (ABV), Certified Fraud Expert Witness Testimony. Court.Appointed
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34 The Arkansas La\\ycr
Schwartz & Associates, CPAs 11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445 (501) 221-9900, (501) 221-9292 fax email: schwartz@busvalu.com
www.arkbar.com
No. 86138, in epe No. 2002-107, on September , 2002, was placed on ilHcrim suspension by the Committee by an order
filed September 9, 2002, pursuant to Sections 15.e, and 16.A(1) and (2) of the Arkansas Supreme Court Procedures Regulating Professional Conduct of Anorneys at Law, as a result of his being convicted 011 August 2, 2002, of a Class 0 felony violation of Arkansas Code Section 26-18-202, failure ro pay tax.
REPRIMAND: GAil LANETTE ANDERSON of little Rock, Bar No. 95224, in epe No. 2002033, on July 23, 2002 was reprimanded on a judicial complaint from Circuit Judge David Bogard for violating Model Rules 1.3, 1.4(a), 3.2, 3.4(c) and 8.4(d).While representing a criminal defendant, Anderson failed to appear for several scheduled court proceedings, could nOt be contacted by the prosecuting attorney's office or the court for communication of a plea offer, and failed to appear for her client's sentencing hearing, among other allegations. Anderson answered that she had been occupied with her own medical problems and those of her mother during this period, and that she had not listened to her telephone messages or contacted her answenng service. GERALD CARLYLE of Newport, Bar No. 72019, in epe No. 2001-129, on July 24, 2002, was reprimanded on a complaint by Carny St. John for violating Model Rules 1.3, 3.2, 3.4(c), and 8.4(d). Carlyle represented Ms. Sr. John's ex-husband and, after a hearing, failed to timely prepare and submit an amendmenr to a divorce decree, as direcced by the ttial judge, thereby causing problems for the exercise of child visitation between the parries. Carlyle answered that personal problems had affected his abiliry to practice. GERALD CARLYLE of Newport, Bar No. 72019, in epe No. 2001-117, on July 24, 2002, was reprimanded on a complaint by Glenn Miller for violating Model Rules
LaV\ycr DisCiplinary Actions 1.2(a), 1.3, 1.4(a), 8.4(c), and 8.4(d). Carlyle failed to file a suit fot his client Miller, failed (0 respond to diem requests for information and status reports, caused his secretary [0 falsely advise the client of a court date in the non-existem suit, and failed to pay an agreed settlement in a small claims action against him by Miller [0 recover Miller's $650 fee. Carlyle answered that personal problems had affected his ability to practice. RALPH A. DO S. J1J, of Little Rock. Bar No. 94023. in CPC o. 2002~35. on September 3. 2002, was reprimanded and ordered to pay $500 restitmion on a complaint by Matthew Hemphill for violaring Model Rules 1.2(a), 1.4(a), 1.5(b), and J.J 6(d). Hemphill hited Downs in January 2000 [0 represent him in pursuing a change of custody situation for his child who lived wim Hemphill in California. Downs was slow to take any action, failed to get service on the ex-wife after he did file
a petition, and could not be reached by his client for seven months. In March 2002, Hemphill asked for the return of his file and a refund of his retainer, which Downs failed to do. KENNETH G. FUCHS, of Conway, Bar o. 81063, in CPC o. 2002-031, on September 3, 2002, was reprimanded and fined $500 on a referral by the Arkansas Supreme Court for violating Model Rules J .3, 3.4(c) and 8.4(d) in his representation of Warren Looney in CR 2001-1308. Fuchs failed to perfect an appeal he filed fot Looney, and he did not get relieved as Looney's attorney. Fuchs' motion for belated appeal was gtanted. Fuchs f";led to
respond
to
McFall for violating Model Rules 3.1, 3.3(a)(I), 8.4(c) and 8.4(d). Mr. Kimble is married [0 Mr. McFall's ex-wife. Kimble was charged with felonies in case No. CR2000- t 20 I. A "no contact" order was entered in domeseic violence court requiring Kimble to suy away from McFall
and McFall's minor child. Fuchs filed a motion to intervene in a separate civil case
styled Paul McFall v. Keith Kimbell, but placed it under docket No. CR-2000-1 20 I. The motion
intervene stated that
CO
custody of the child had been changed to McFall's ex-wife. Kimble had undergone drug treatment, and he no longer posed a danger co anyone. Fuchs never served McFaJl with the motion [Q intervene. He
[he Commirtec's complaint, so
presenred the motion and an order
[0
the
the allegations were deemed admitted.
judge who approved it. McFall had to hire
KE NETH G. FUCHS, of Conway, Bar o. 81063, in CPC No. 2002-009, on September 3, 2002, was reprimanded and fined $1,000 on a compl";nt by Paul Wayne
an anomey to rescind the order, which the coun canceled upon learning of the circumstances. Fuchs failed to respond co the cornplaim. so the allegations therein wefe deemed admitted.
Barry J. Jewell Attorney at Law Announces The Formation of JEWELL LAW FIRM, P.A.
Scott D. Fletcher Attorney at Law
1008 West 2nd Street Little Rock, Arkansas 72201 (50l) 907-6800
Announces The Formation of
FLETCHER LAW FIRM, P.A. 1008 West Second Street Little Rock, Arkansas 72201 (501) 907-7600 Practice dedicated to Tax, Pension, Estate and Asset Protection Planning Vol. 37
o. 4/Fall 2002
The Arkansas !.alryer
35
L.lv'ycr Disciplinary Actions RICHARD LANE HUGHES, of Little Rock, Bar No. 82081, in CPC 2002-048, on july 31, 2002, was reprimanded and fined S 1,000.00 on a complaint by Helen Melbourne of Australia for violating Model Rules 1.3, 1.4(a), 1.4(b), 1.5(a), 8.4(a), and 8.4(d), and was fined an additional 51,500.00 for failure to file a timely response. Hughes was hired by Melbourne in a criminal case in Federal court and quoted and was paid a 550,000.00 fee, the last 520,000.00 of the fee was to cover his services through trial. Melbourne's husband was also chatged but had separate counsel. In july 200 I the United Scates Attorney's Office reported it was unable ro CQlUacr Hughes to offer and discuss a misdemeanor plea bargain for Mrs. Melbourne. A new offer was made in Ocrober 200 I, and
Hughes briefly surfaced and then became unavailable again. In November 2001 the court finally 3mhorized another anomey to
emer an appearance on behalf of Mrs. Melbourne ro complete the case. The final plea agreemem required her ro plead ro a felony immigration offense. Hughes' 550,000 fee was held unreasonable, as he did not even assist his client through the plea stage, much less through any trial.
JEFFREY H. KEARNEY, of Pine Bluff, Bar '0. 91249, in CPC o. 2001-105, on july 25, 2002, was teprimanded on a complaint by Parricia Ann Davis for violating Model Rules 1.1, 1.3, 1.4(a), 1.4(b), 1.5(c) and 8.4(d). In 1996 Mr. Kearney took over from another attorney, now his former law parmer, 3n employment suit filed in Federal
court, and which was partially based on a comingency fee arrangemem with the client. There was no wrirren comingency fee agreement. A voluntary non-suit was granted in june 1997, on condition that if suit on the same claims was refiled, defendants were to be awarded their COStS and attorneys fees for any duplicated work. In june 1998 Mr. Kearney refiled the same claim in state court. At that time the statute of limitations had already run to file the claim in state court. Problems arose in the suit which were not communicated to the client, and morions were nor responded to. The state case was dismissed with prejudice in March 1999. The motion for sanctions was nor ruled on by the srare court.
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36
n,C Arkansas L;"'Ycr
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L.lwycr DisciplinJry Actions JOHN L. KEARNEY, of Pine Bluff, Bar No. 74090, in CPC No. 2001-112, on August 28, 2002, was reprimanded. placed on probation with specific conditions for twelve (12) months after his probation in CPC No. 2000-138, through January 3, 2004, and ordered to pay restitution of $1,500.00 and costs of $138.94 on a complaint by Patricia Ann Davis for violating Model Rules 1.1, 1.3, 1.4(a), 1.5(c) and 8.4(d). The essential facts in this case are as reported in the mancr of Jeff Kearney (above). John Kearney assigned the Davis case to Jeff Kearney.
ROBERT B. LESLIE of Little Rock, Bar No. 69044, in CPC No. 2001-135, on August 26, 2002. consented to a reprimand,
payment of Commince
COStS
of $200.00
and resrirurion to his cliem's mother of $10,000.00 of the fee she paid him to represcm her son in an executive clemency marrer, for violating Model Rules 1.4(a) and 1.15(a)( I). Jennifer Kerrisk of New Zealand paid Leslie the fee funds in August 1997 to represent her son James Middlebrook in a petition for execueive clemency that was to be filed in the near future. Leslie did not place the funds in a trust account. He failed to respond to requests for information and status reports abour the matter. Leslie answered that the petition was not to be filed until the client had served 5-6 years of his prison sentence, which started in mid1997. that the client and his mother understood this, and that he stood ready to continue rhe representation, if the client so desired. REGINALD SHELTON McCULLOUGH of Litrle Rock, Bat No. 85102, in CPC No. 200 I I I I, on August 22, 2002, consented to a reprimand and a $500.00 fine on a complaint by Vandora Demery for violating Model Rules 1.3, 1.4(a), 1.4(b), 1.I6(d), 3.4(c), and 8.4(d). McCullough was employed 111 1999 to represent an unemployed Demery in an employment termination grievance hearing at the Department of Community Punishmem. After an adverse administrative decision he
filed suit for her in Federal court. Problems arose regarding responding to discovery and her delinquent account with McCullough. Contact problems existed for about a year. Demery checked at the courthouse in early 2001 and learned her suit had been dismissed, withour her knowledge, for violations of the scheduling order relating to discovery. McCullough answered rhar Demery stopped cooperating with him afrer he filed rhe Federal suit. MICHAEL A. PRICE of Sherwood, Bar No. 81133, in CPC No. 2001-145, on August 28, 2002, was reprimanded and fined $750.00 on a complaint by Cleodis Garson for violating Model Rules 1.3, 1.4(a), and 1.4(b). Garson hi ted Price in March 200 I and paid him $500.00 to provide Gatson wirh a detailed written legal memorandum about several issues, including intellectual property maners, concerning the Daisy Gatson Bates Estate, for which Mr. Gatson is the personal representative. No memorandum was ever produced. Mr. Gatson had difficulty getting information and status repofts from Price, and in gening informatjon Gatson needed to make informed decisions about estate matters. Mr. Price answered that he gave Mr. Gatson sufficient verbal reports on the matter. ALVIN L. SIMES of Forrest Ciry and Wesr Helena, Bar No. 89188, on July 8, 2002, was reprimanded on a complain t by Bobbie )0 Virgies for violating Model Rules 1.1, 1.3, and 1.4(a). Simes represented Virgies in a racial discrimination action flled in 1993 in Federal Court against an apartment complex and its owners. A jury trial in 1997 resulted in, inter alia, verdiC(s for $23,000 against the apartment complex. This part of the judgment was set aside on post-trial motion when it was determined Simes had failed (Q obtain proper service on the complex by either personal service on its agent or by warning order. Simes had the complex owner's fifteen year old son served, but the court found this service ineffective. There was no appeal. The client did not learn this part of the total judgment of
$27,000 had been ser aside unril after she had filed her disciplinary grievance. KENNETH E. SUGGS, of North Litde Rock, Bar No. 71104, in CPC No. 2002037, on Seprember 3, 2002, was reprimanded 011 a complainr by Dorothy George for violations of Mode! Rules] .2(a), 1.3, 1.4(a) and 1.8(e). George hired Suggs to represelH her in a personal injury matter. After some time, she began to receive excuses for the lack of action in her matter. He never filed suit for her. He agreed to handle matters involving her medical providers from the incidenr but failed to do so and she was sued by at least one. Suggs filed an answer for her in that suit. When she contacred the insurance company and found Suggs had not been contacting them for some time, she terminated Suggs in bOth matters and got anOther attorney. Upon receiving her file from Suggs, she learned that for almost three years Suggs had agreed to make personal $100 monthly payments to one of her medical providers pending settlement of her claim, but he had failed to make the payments. Suggs responded that George was a friend and his housekeeper, and he only agreed to make the medical payments because she was a friend, not his client. Such payments would constitute improper financial assistance to a client in connection with litigation of a personal injury claim. J. F. VALLEY of He1ena, Bar No. 96052, in CPC No. 2001-096, on July 6,2002, was reprimanded on a referral by the Arkansas Supreme Court for violating Model Rules 1.3, 3.2, and 8.4(d) in the appeal of Etherly and Simes v. Eddy. Valley requested and received Supreme Court approval for an expedited appeal of this 2000 election contest action. Thereafter Valley was given nine (9) extensions to flle appellams' brief bur failed to timely file it. His motion to file a belated brief was denied and appellee's marion to dismiss was granted. SAM WHITFIELD, JR. of He1ena, Bar No. 82056, III CPC No. 200 I-I 00, on September 10, 2002, was reprimanded and
Vol. 37 No. 4/Fall 2002
TI,e Arkansas Lawyer
37
La\\ycr Di'>ciplinary Action,> ordered co pay $351 restitution and COSts of $25 on a complaim by Ramona Wren for violating Modd Rules 1.3, 1.4(a), 1.l6(d), and 8.4(c). Whirfidd accepted a fee of $1.000 in February 2001 from Mrs. Wren
represem her husband in an effon ro seek a reduction in his sentence from the Jackson to
County Circuir Court. Whirfidd did no work on the matter. never filed any pleadings, never contacted Mr. Wren in prison, and did nO[ maimain comact with Ms. Wren, who hired him. He was terminated by Mrs. Wren, who requested a refund. Whitfield made a partial ner fee refund totaling $649 after being served with the complaint.
Donovan, on behalf if irs c1iem Faber, [0 enforce an out of state child suppOrt order in favor of Faber. An Arkansas coun larer derermined thar the conrract between Donovan and CSB was a contingency fee contract. Gross payments were to go first to Donovan, and then CSB was to get ics net share from her. Donovan did nOt place funds ulrimarely belonging ro CSB in any trust account; she did not act with reasonable diligence; she Failed to keep her client informed of the status of the matter; she did nor promptly deliver funds belonging to her clienr; and she was practicing law at a time when her license was suspended for failure to pay her annual license fee for the year 2000.
CAUTIO: KEN ETH G. FUCHS, of Conway, Bar ANN C. DO OVAN of Fayetteville, Bar No. 81063, in CPC o. 2002-005, on o. 78043, in CPC o. 2001-032, on September 3, 2002, was cautioned and August 27. 2002. on a complaint by Jim ordered to pay $500 restitution on a Harrelsron for ,he Child SuppOrt Bureau of complaint by Susan Summers for violating Texas, LLC, ("CSB") consenred ro a caution Model Rules 3.3(a)(I), 8.4(c) and 8.4(d). for admitted violations of Model Rules 1.3, Without any prior notice or service of any 1.4(a), I. I 5(a)(I), 1.15(b), I.l5(c), and petition on her. Ms. Summers received from 5.5(a). In early 2000, CSB rerained Mr. Fuchs an order terminating child support she had been receiving. She had to hire an atrorney to get the order set aside. Fuchs responded that a summer intern in his office must have dropped off ar rhe judge's office, along with the petition Fuchs prepared, a "skeletal" A 1Ih.... '" wu.- .. A~, P.L.l.C order Fuchs was in the habit of preparing in Year ...... 10. . . . for: such cases as a "go by" • IlHiMtIliIlI " C_rriaI CIoIi.1I for his secretary to use .~lo.u_nlS • nil. 1.......« in preparing the final 1031 Tu Drfenoroll Eu"_ order after the hearing.
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Supreme Courr for his handling of me appeal in CR-2001-1327, Charles Lewis v. Smte, for violations of Model Rules 1.3 and 8.4(d). Gibson responded mar he senr the appeal transcripr to the Clerk by UPS in
rime for it to be timely delivered, and it was nor ddivered on the last day. Gibson ealled me derk and learned ddivery had nor been made. He drove anomer copy to Little Rock bur arrived after the close of business on the
lase day. His motion for belated appeal was gramed after he accepted responsibility for the late filing.
ALVIN SCHAY of Little Rock, Bar No. 75176, in CPC No. 2002-019, on July 22, 2002, was cautioned on a referral from the Arkansas Supreme Court for violating Model Rules 1.3 and 8.4(d) in failing ro timely file the appeal transcript for his client in Wooren v. Srare, CR-2001-986 and thereby causing delay in the administration of justice.
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38 The Arkansas la"Yer
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JOHNFRANKGIBSO , JR, of Monricello, Bar o. 66021, in CPC No. 2002-034, on September 3, 2002, was cautioned and fined $1,000 on a referral from the Arkansas
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Vol. 37 No. 41Fall 2002
TI,C Arkansas I.aI\ycr
39
In Memoriam JAMES GASTON WILLIAMSON By Phillip Carroll
James
Gaswn
Williamson died in Li[t1e Rock on June 30,2002 ar age 88. He s,"died a< Monticello A. M. College and then the Universiry
of Arkansas at Faycncville, receiving his BA Degree and Phi Beta Kappa key in 1934. During his second year in
law school he was selected as a Rhodes Scholar. He earned [\'10 degrees in Jurisprudence at Oxford Universiry and returned co Monticello to practice with his fadler, Lamar, and his uncle, Adrian, in the firm founded by his grandfather. Convinced that war was inevitable, Gaston joined the National Guard. He married Wrencn3
Wonhen in 1940 and soon thereafter he was inducted inco federal service. After the arrack on Pearl Harbor his Coast Artillery Banery was scm to Durch Harbor in rhe Aleutian Islands. The Aleutians were attacked by the Japanese in the spring of 1942. Gasron served there with his unit for rwo years without leave, before being assigned to the Army Command and Staff School. Upon graduation there, he joined rhe I" Inf.mcry Division (The Big Red One) in Europe as a replacement. Gaston fought with this famous unit in the breakour at 'ormandy, in the Ardennes, and he was one of the fi rst to cross the Rhine River when the Remagen Bridge was found intact. His division fought in the Ruhr pocket, in the Harrz. Mountains, and it drove into Czechoslovakia. In December 1944, one month after \Xlrelletta gave birth to their first son, Gaston learned he was a f.lrher. Shordy before VE Day, [he Division was pulled OUt of the line co begin its journey co Okinawa for its anticipated role in leading the way in the invasion of Japan. VJ Day occurred before the journey began. Gaston was discharged a Lieutenant Colonel.
40 TI,e Arkansas La"yer
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He practiced law for two years with a \Xlall Street firm in New York, and then returned to Little Rock where he joined the Rose Law Firm, specializing in tax law until his retirement in 1989. His connibutions {O his profession, ro his community, and to his church are legion. He served as P[esidenr of borh [he Arkansas Bar Foundation and the Bar Association (To learn more about the character of this oms tanding lawyer, read his address to the Association in J 969 in which he expressed his views on the responsibility ofla\'''yers to restore and maimain respect for the law. 23 Ark. Law Review 517). He was rhe recipient of the Outstanding Lawyer Award in 1980. He served as chair orOne Hundred Men for Little Rock during the 1957 school crisis, and later as chair of the Arkansas Advisory Committee to the U.S. Commission on Civil R.ights. He occupied many roles as a lay leader in the Presbyterian Church. He is survived by three children: James Gaston \Villiamson, Jr., Dr. G. ordon Williamson, and Edith W. Farrell; a brother, Lamar Williamson; four grandchildren; and four greatgrandchildren. Gascon Williamson set an example of excellence in his private, professional, and public life. He conquered that ancienr enemy of humankind---sreed. He died, quietly, the day after returning home from a two-week ocean-from vacation, which he hosted, w;[h his children, grandchildren, and great-grandchildren. He will be remembered as one of the greatest of the greatest generation.
JUDGE WARREN O. KJMBROUGH Judge Warren O. Kimbrough, a 78-yearold Fort Smith resident, passed away September 2. He graduated from Hendrix College and received his law degree from Vanderbil[ Universiry in 1953. He pracriced law in Fon Smith, where he served as assistanr arrorney and as deputy prosecucing attorney for Sebastian County. Later he practiced in the firm Garner, Shaw and Kimbrough. He was a Chancery Judge in the 12th Judicial Circuit for 30 years and served as presidem of the Arkansas Judicial Council. An advocate for ahernative dispute resolution, Judge Kimbrough was a member of the National Association of r3re Trial Judges AJcernative Dispuce Resolmion Committee and served as state chairman of the Arkansas Alternative Dispute Resolucion Committee. He was a member of rhe American Bar Association, a sustaining fellow of rhe Arkansas Bar Foundation and a sustaining member of the Arkansas Bar Association where he was rhe 1989 Golden Gavd Award recipiem for his outstanding work as chair of the Family Law Committee. Acrive in church and civic activities, Judge Kimbrough also was a World War II veteran, and he remained active in the Naval Reserve, reciring with the rank of Captain. He is survived by his wife, Rebecca; six children, Karen Elizabeth Sritsworrh of West Laf.lyerte, Ind., Beverly Claire Berger of Fayetteville, \Varren Carter, James Bryan. Kevin Alexander and Sarah Jane Kimbrough, all of For< Smi[h; and nine grandchildren. JAMES I~ BAKER, JR. James P. (Doc) Baker, Jr., 89, died August 1 in Little Rock. He graduated from the University of Arkansas and received his law degree from Washingron and Lee University He practiced law for in Lexington, Va. more than 50 years in Helena and \Vest Helena, where he was active in civic and church activities and in local government. He was a veteran of World War II and held rhe rank of major when he was discharged from [he U. S. Army in 1946.
In Memoriam He served in the scate Senate from 1946 to ] 957 and was co-author of legislation creating the Arkansas Industrial Development Commission. Baker was a longstanding member of the Arkansas Bar Association and served on a number of its committees, including the Election Law Revision Commince, the Crime Prevention and Comrol Com mince and the Agriculcural Law Commince. He was also a sustaining fellow of the Arkansas Bar Foundation. He is survived by his children, Judge James Mixon and his wife, Robbie, of Little Rock and Gail Everharr and Sara Lee McPhillips. both of HOUSCOIl, Texas; one granddaughter, (wo grear.grandchildren; five step-grandchildren and four step-greatgrandchildren.
Graves was very active In CIVIC and church activities, served twice as mayor of Hope and served on the Hope Water & Light Commission and the Hope School Board. He was the recipient of the HopeHempstead County Citizen of the Year Award in 1978. As a member of First United Methodist Church, Graves served his congregation in myriad ways-including his tenure as Chairman of the Board, Chairman of the Trustees, and as teacher of the Century Bible Class for over 50 years. He is survived by his wife, Marilyn Ward Robison Graves; three children, Albert Graves, Jr., and john Roben Graves, bOth of Hope and Ginanne Graves Long of Little Rock; seven grandchildren and 16 greatgrandchildren.
ALBERT GRAVES Albert Graves of Hope died June 13. He was 92. Afrer graduating from Hendrix ColJege and Harvard Law School, he joined his father's law practice in Hope in1933. He was a member of the Southwest Arkansas, Arkansas and American Bar Associations, a fellow of the American College of Trial Lawyers, the American College of Probate Counsel and the American and Arkansas Bar Foundations. A longtime Arkansas Bar Association sustaining member, Graves served on numerous Association commiuees, including the Professional Ethics and Grievances Comminee and the Crime Prevention and Control Commirtee. He also served as chairman of the Judicial Nominations Comminee from 1978 to 1982.
JOHN T. PURTLE John T. Purde, 66, of Baresville died May 26, 2001. He was a lawyer in private practice in Batesville. He was Batesville City Attorney for nine years, a City Alderman for three terms and served on the Independence County Election Commission for 11 years. Punle, who wrote a weekly column for Arkansas Weekly called "A Second Opinion." also hosted a regular radio program on KAAB-AM in Batesville. According ro an article written in Arkansas Weekly by Gary Bridgman, Purrle was an eccentric man-a Christian, a writer, a phorographer, a jogger, a biker, and a person intrigued by politics and government. He was well read in many subjects and enjoyed discussing religion, He "rook pleasure in Bridgman said. getting a reaction from people on different subjects. He enjoyed pitch ing those thoughts Out there for folks to talk about." A sustaining member of the Arkansas Bar Association, Purtle served on several Association committees, such as the PreLaw Advisors Committee and the AutO Insurance Committee. He is survived by a son, john Stephen Purtle of West Fork; a daughter. Susan Purtle of Fayerreville; four grandchildren; and his former wife, jane Purtle of Bullard, Texas.
THOMAS CLINTON HUEY Thomas ClintOn ("Clint") Huey of Warren died July 24 ar Sr. Joseph HospiraJ in Hot Springs. He was 73. "Clint is an outstanding trial lawyer and parent and has served the small ÂŁown of Warren in many civic and professional ways," wrote Robert R. Wright in his popular book, Old Seeds in the New Land: History and Reminiscences of the Bar of Arkansas. A commissioned officer in the U.S. Air Force Reserve, Huey served in the U.S. Navy from 1946 ÂŁ0 1948 and accompanied the much-celebrated Antarctic explorer. Admiral Byrd. on his final trek to the South Pole. Huey graduated from the University of Arkansas School of Law at Fayetteville in 1953 and moved to Warren in 1955 to practjce law. There he served as Bradley County's deputy prosecuting attorney and as Warren's city attorney. He was the city's first elected municipaJ judge, served on its City Council and helped establish rhe IOrh judicial Circuit's public defender program. The highly regarded Huey served as special chancery, circuit and juvenile court judge for the 10th Judicial District in addition to serving as special judge on the Arkansas Supreme Court, where he was a member of the Committee on Professional Conduct. He was also active in a number of organizations, serving as President of the Southeast Arkansas Legal Institute; President of the Arkansas chapter of the American Board of Trial Advocates the year Arkansas was named the nation's
Continued on page 42 Vol. 37 No. 4/Fall 2002
TI,e Arkansas Lawyer
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Parental Alienation from page 23
In Memori3m Continued from page 41 omsranding chapter; and President of the Arkansas Bar Foundation, where he was also a sustaining fellow. A dynamic and longtime sustaining member of the Arkansas Bar Association, he served on its Executive Council and its House of Delegates in addition to serving on numerous Association committees. "He was a great trial lawyer, a great friend and will be sorely missed by the public and the bar association," said retired Judge Sonny Dillahunty, who Huey worked for as assistant U.S attorney of the Eastern District of Arkansas from 1968 ro 1970. Huey is survived by his wife, Martha McKnight Huey; six children, Thorn Huey of Little Rock, Bill Huey of Dallas, Mary Catherine McBee of Warren, Martha Ann Sloan of Sama Fe, N.M., Ftances Allen of Statesboro, Ga. and Liz Brazee1 of Aurora, Colo.; a half-brother, Lynn Bennett of Hot Springs; 10 grandchildren and one greatgrandchild. HOWARD B. EISENBERG Howard B. Eisenberg, professor and dean of Marque((e Universiry's Law School, died June 4 at $(. Luke's Hospital in Milwaukee. He was 55. A former dean and professor of law at the University of Arkansas at Litde Rock, Eisenberg recendy led a comminee investigating alleged sexual abuses by Catholic priests in the Milwaukee archdiocese. The Chicago native received his bachelor's degree from Northwestern University and earned his law degree from the University of Wisconsin. He served as chief Public Defender in Wisconsin, was named executive director of the National Aid and Defender Association In Washington, D.C., and served as director of clinical education at the Southern Illinois University School of Law in Carbondale, Ill. before joining UALR's faculty and administration. He is survived by his wife, Phyllis; his three children, Leah, Nathan and Adam; and his parents.
Some wishes, of course, no ma((er how hard we work on them, never come true. But it is always open to us to substitute for neucmic "wishful thinking" what Neurath happily called "thinkful wishing." Let us thus use the wish that the administration of justice may be improved. If we do, we will. ... admit that [trial courts'] factfinding frequently results in grave injustices. We will then seek to discover in what ways that job can be done better. I surmise that, although such efforts will fall far short of perfection, they will, by no means, go wholly unrewarded. ENDNOTES *ŠCarol S. Bruch ** Professor Emerita and Research Professor of Law, University of California, Davis. The author expresses her gratitude to Leon Holmes, Esq., of Little Rock for the skill with which he abridged this article from the complete manuscript, which appears under the title Parental Alienation Syndrome and Parental Alienation: Getting it Wrong in Child Cusrody Cam at 35 FAMILY LAW QUARTERLY 527 (2001). 1 See, e.g., In the Interest ofT.M.W., 553 So. 2d 260, 261 n.3 (Fla. Dist. Ct. App. 1989); Hanson v. Spolnik, 685 N.E.2d 71, 84 n.IO (Ind. Ct. App. 1997). A powerful concurrence and dissent in Hanson by Judge Chezem details the deficiencies of PAS as a theory and as implemented in this case. See also Pearson v. Pearson, 5 P3d 239, 243 (Alaska 2000), where the state supreme court volunteered that PAS (which both parties' experts accepted) is "nor universally accepted." 2 See, e.g., People v. Forrin, 706 N.Y.S.2d 611 (N.Y. Crim. Cr. 2000); Husband Is Entitled to Divorce Based on Cruel and Inhuman Treatment: Oliver V v. Kelly 224 N.Y.L.J., Nov. 27, 2000, at 25 (noting that no testimony was offered to validate PAS and therefore declining to make such a finding). See also Wiederholt v. Fischer, 485 N.W2d 442 (Wis. Cr. App. 1992). But see Kilgore v. Boyd, Case no. 947573 (13th Jud. Cir., Fla. Nov. 22, 2000) (transcript of hearing permitting Gardner's PAS testimony), ar http://www.tgardner. com/pagesl kg.excerpt.html. 3 Gina Keating, Critics Say Family Court
v.,
Spum Often Amounrs to Jusrice for Sale, 42 The Arkansas La\r\Yer
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PASADENA STAR-NEWS, April 24, 2000. A similarly outspoken assessment by a well-regarded scholar appears in the American Bar Association's Journal; referring to Gardner's withdrawn Sex Abuse Legitimacy Scale (SALS, the basis for Gardner's PAS theory), Professor Jon R. Conte of the University of Washington Social Welfare Doctoral Faculty remarked, SALS is "[p]robably the most unscientific piece of garbage I've seen in the field in all my time. To base social policy on something as flimsy as this is exceedingly dangerous." Debra Cassens Moss, Abuse Scale, 74 A.B.A. J., Dec. 1, 1998, at 26. Gardner's views on pedophilia and what he calls a wave of hysteria concerning child abuse allegations have been received with equally harsh appraisals elsewhere. See, e.g., Jerome H. Poliacoff & Cynthia L. Greene, Parental Alienation Syndrome: Frye v. Gardner In the Family Courts, at http://www.gate.net/-lizlliz/poliacoff.htm (a revised version of an article by the same name that originally appears in the FAMILY LAW SECTlON, FLORIDA BAR ASSOCIATION, COMMENTATOR, vol. 25, no.4, June 1999). 4 As a general matter, custodial households are at a financial disadvantage in the United States, and custodial parents are less likely than noncustodial parents to be represented in custody litigation. John E. B. Myers, A Mother's Nightmare-Incest: A Practical Legal Guide for Parents and Proftssionals 8 (1997), vividly describes the COStS to the custodial parent and the tactical advantages to the noncustodial parent of pretrial discovery to "keep... [the protective parent and counsel] off balance and distract them from the important work of getting ready for court."
In MClllort..l1ll The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during [he period ofJune 18, 2002 <hrough Sep[ember I, 2002: IN MEMORY OF JAMES P. BAKER, JR. John A. Fogleman John M Pinman Roscopf & Roscopf, PA. I
MEMORY OF JACK BARRIER George Ellis
IN MEMORY OF ISABELLE DAILY Judi[h Gray IN MEMORY OF JlMASON DAGGETT John M. Pinman IN MEMORY OF DEAN HOWARD EISENBERG Don Hollingsworth Robe" R. Wrigh[ IN MEMORY OF ZED GANT Hyden, Miron & Foscer, PLLC 1
Hyden, Miron & Foscer, PLLC John and Marie[ta Scroud William R. Wilson, Jr. and Ca[hi Compton .. Designated to the Rose Law Firm Scholarship Fund.
I
MEMORY OF ERNEST LAWRE CE Christopher Barrier Steve Bauman" Beaver Water Dirsricr" Leah Caradine' Maurice MitcheU" James Mixon' . Designated to the Ernest Lawrence Scholarship Fund, adminiscered by <he Arkansas Bar Foundation. IN MEMORY OF JAMES MCKENZIE Bobby Fussell' Hyden, Miron & Foscer, PLLC Bill Manin" ·Desginated to the Horace and James McKenzie Scholarship Fund.
MEMORY OF ALBERT GRAVES Winslow Drummond
John and Marietta Stroud I
Judi<h Gray Annabelle Climon Imber Bill Manin William R. Wilson, Jr. Rober< R. Wrigh[
MEMORY OF ROBERT HARGRAVES Christopher Barrier Randy Coleman Hyden, Miron & Fosrer, PLLC Don and Rose Pullen
IN MEMORY OF CLINT HUEY Christopher Barrier John and Annis Fogleman
I
MEMORY OF JUDGE HENRY WOODS Bobby Fussell' Hyden, Miron & Foster, PUC Bill Marcin' Walls Trimble •Designared to me Judge Henry Woods Scholarship Fund.
SCHOLARSHIPS JOE C. BARRETT SCHOLARSHIP FUND Jack and Dorine Deacon W1LSO & ASSOCIATES ETHICS SCHOLARSHIP FUND WILSON & ASSOCIATES, PLLC
MEMORY OF JOH MCCLANAHAN Judi[h Gray
IN MEMORY OF DUNCAN MCRAE, JR. McKenzie, McRae, Vasser & Barber, PLLC IN MEMORY OF GASTON WILLIAMSON Winslow and Katherine Drummond John Fogleman Judi[h Grar
I
The Arkansas Bar Founda[ion is pleased to announce the establishment of a new scholarship fund entitled the Ernest Lawrence Scholarship Fund. In memory of Ernest Lawrence.
BIRTHDAY, AN IVERSARY OR RETIREMENT CELEBRATION? REMEMBER, THE ARKANSAS BAR FOUNDATIO ... The Arkansas Bar Foundation receives comribmions in honor of individuals on a regular basis. To make a donation, me donor makes [he check payable [0 <he Arkansas Bar Founda[ion and notes on <he memo line or cover lener <he derails of [he honorarium ("in honor of .. along with the address for the honoree). In cum, the Foundation will acknowledge receipc. A letter will be sem co the honoree advising him or her of the contribution and who gave the donation in his or her honor. These contributions to Arkansas Bar Foundation are tax deductible.
me
CONTRIBUTIONS MAY BE MAILED TO: ARKANSAS BAR FOUNDATION, 400 WEST MARKHAM LITTLE ROCK, ARKANSAS 72201
Vol. 37 No. 4/Fall 2002
n,e Arkansas l:J''Yer
43
President's Report from page 3
Ad Litem from page I I relevam to the best interest of the child with the COUf[." lin dependency. deglea cases];Sec. 5. g. "An attorney ad litem shall nor be prevented by any
It was and is the purpose and intent of the Association leadership to provide this service as a very valuable benefit for our members. Thank you to the Task Force members for their mOSt important contribution of time, effort and wisdom ro this project and also to the Board of Governors for their foresight, supporr and approval of this major undertaking. The
privilege, including the Lawyer-dienr privilege, from sharing \Vim me coun all information relevant to the best interest of me child" [in domestic relations
Task Force was composed of Price Marshall, chair, Karen Halbert, Melva Harmon, Rick Holiman, Philip Kaplan, Jack McNulry, Charles Morgan, Chris
custody cases]; The Arkansas Supreme Court, with me advice of circuit judges. is authorized to adopt standards of practice and qualifications for service for
Travis. Danyelle Walker, and ex officio members. Tom Daily, Mike Crawford, Tim Holtoff, Tim Tarvin. Bill Wright and Lynn Foster.•
attorneys who seek to be appointed to provide legal represenmtion for children in cusrody cases. Ark. Code Ann. Sec. 9-
Historical Society from page 3 I public money is used to subsidize private emerprise in the name of economic developmem and job creation. The "wall of separation" between public and private purposes has crumbled inro nothingness. Cobb lJ. Parn~il represents the beginning of that process in Arkansas.
(AU /alUY~rs au ~llcourng~d to buome members of tlu Society to mpport our ~ffirts to promou underst{l1Iding tbe bistory ofcourts ill ArkansllS. M~mbersbip is $25.00 p~r y~ar Ilnd cbuks may be sellt to tlu ArkansllS SlIpume Court Historical Society, IlIc., 625 Marsball St., Little Rock, AR 72201.)
13-101 (d)(2)(Rep!. 2002) 4 Ark. Code Ann. Sees. 9-24-401; 9-13-
lOG.
Classilicd AdvCI"tising DEVELOPMENTAL DISABILITIESI MENTAL RETARDATION/SPECIAL EDUCATION/MENTAL HEALTHI NURSING HOME & HOSPITAL STANDARD OF CARE-
5 Administrative Order 15, Sec. l.a.(3); Sec.4.b.(I). 6 Administrative Order 15, Sec. I. b; Sec. 3. k.; Sec. 4. b. 7 Administrative Order 15. Sec. I. c. (1) lists the types of hearings that a lawyer must attend to qualify as an anomey ad litem: Emergency, Adjudication! Disposition. Review Permanency
Expert witness services provided rdated to
Index to Advertisers PAGE
!'SA RetJrement
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ADR.lnc.
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I'lr Olarter Express
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MAl'
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EO
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Standard of Care issues in health and
Planning, and Termination of Paremal
human service agencies.
Rights. Ark. Code Ann. Sec. 9-13-10 I (d)(5)(A) (Rep!' 2002) Ark. Code Ann. Sec. 9-13 101 (d)(5)(B) (Rep!' 2002). James M. Luffman, "The Expanding Role of the Guardian Ad Litem under the Arkansas Juvenile Code: 12 Ark. UzUlJ" II, Spring 1994. H. Pauiek Stern, M.D., Batm'ed Cbild
JeweU Law firrn,fletcher Law firm
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INA
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landtech Data
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Legal Directones Publishing
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Paul M~on
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Syndrom<: Is it a Pamdigm fOr a Cbild of Embattld Divort:e, 22 U. ARK. Lrrn.£ ROCK L. REv. 335 (2000); Kathleen Coulborn Faller, Ph.D., Child
Moore. Stephens, Frost
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William A.
Lybarger, Ph.D. 620-221-6415 t1ybarge§£yahoo.coml
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BARRETT & DEACON, a professional association located in Jonesboro. seeks an experienced lawyer [0 join the firm's litigation section. The successful applicant will have between twelve and thirty-six months of practice experience. have graduated in the top one-third of his or her law school class, and have demonstrated
professional excellence on a law review or a moor court ream or in a judicial clerkship. The firm will pay a salary that matches
experience and will provide full bencfies. Please send your confidential inquiry to Price Marshall, BARRETT & DEACON,
A Professional Association, P.O. Box 1700, Jonesboro, Arkansas 72403. With your inquiry, please summarize your professional experience, and include
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Richard L. Schwartz
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Omt""" of Divort:e, 22 U. ARK. LrrnE ROCK L. REvA29 (2000). 12 Judge Chesrer T Harhut, All Expanrkd Rok fOr tbe Guardian ad Liran, 2000 JUV. AND FAM. Cr. J. 31 (Summer,
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2000) 13 Pil!tCl! v. Pierre, 73 Ark. App. 339, 43 S.W.3d 192 (2001).
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