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The Arkansas
E-M:l.il: ahubb.1.n:I@:I.rklnr.com EDITOR
Anna Hubbard
awer
EXECUTI VE DlREC r O R Doll HolfillgflvtmiJ
ASSOCIATE EXECUTIVE DIREc r OR Kart" K. Huuhills
EDITORIAL BOARD Philip E. Kaplan, Chair Judge Wilry A. Br.mton, Jr. Michdle H. uulcoy Milton Fine, II Willi:l.ffi D. I'bug/It Muy Beth Manhews Stuart I~ Miller Gon:lon S. Rather, Jr. Christopher Tr..vis David H. Williams
'Ii::rcsa M. Wineland OFFICERS President
Jama D. Sprott I:\ru.rd of r:ovc:mnr~ Ch:l.ir
J..... cu.dy 'Thytt
Vol. 42. No. 2
features 10 The Value of Difference: Practicing in a Diverse World The University of Arkansas School of Law, Fayetteville Judith Kilpa trick
President· El«:t
Richard L Ramllay Immediate Pa5t Prc:sidCIil A. GI£Il.D YUKI'
XcTrury-TmlSurcr Wdliam. A. M.niD
P:l.rli:l.ITlenlari:l.o
14 An "Indivisible" Commitment: The Bowen School of Law's Efforts to Create a Diverse Community
J. Leon Joau..Young uW}'ers Section Chair Mimdle R Cauley
BOARD OF GOVERNORS Thoma$ M. urpcmer NikiT Cung
Aaron N. Taylor and Andy M. Taylor
Jim Pat Flowers
David M. Fuqua Charld L H:uwdl Anthony A. Hilliard Colene D. Honor..ble Willi:I.ITI O. James Jim LJuJjan
Sean T ~i th Harry A. Light Chalk S. Mi tchell John R. Peel Donna C. Petrus
20 A Date with History: Wiley A. Branton and the Path to Cooper v. Aaron Judge Wiley Branton, Jr
Danny M. Rasmussen
Brian H. Ratcliff Fr..nk B. So:wall Todd M. Turner John T. Vines Eddie H. Walker, Jr. Tom D. Womack
LIAISON MEMBERS Judge John Finley Don Hollingsworth Phyllis M. McKenue &Indolph C. Jackson Jack McNulty Judge Ria: Van Ausdall Carolyn B. Witherspoon
28 New Rules in Dependency-Neglect Appeals Anthony L. McMullen
30 Arkansas Supreme Court Historical Society Noteworthy Arkansas Jurists: From the Trial Bench to the Governor's Office Logan Scott Stafford
71NAdttJ/,IIU u",?" (USPS )46-040) upubfuhed quvlcr!y by tht Arb_ 8M At.loci:l.lion. Prriodic:al. pcnUfF p>od " Llllk Rock, Arlanw. POSTMASTER: ~ :oddras cmnga 10 1Jr. Arh_ IA..,..,., 2224 Cotloncbl~ I..an(:, Liuk Rodr:, Atbnw 722(l2. Subwiption pria: '0 non-~Ix:n or ,he Arkalllas lID Auocia,ion $35.00 pcr)'Ol'. Any opinion apn:sscd herein is thaI of ,he all'ho., :I.nd not r>eCaJUily tha, Qr th~ Arkansas Bar Alsocialion or T7N ArhIU4U /.6"'}'". Contributions '0 n,.. A"u/UJU 1A'9'" are ....:1. COrM and .should be- 5mt 10 :ahubtwd@arkbv.com, n", Arh_ IA",,", 2224 COt:lond:ak I..an(:, Lillk Rock, Arbnw 72202. All inqwrie:I o:prdin& ad..."rtising mdd Ix scm ro EdnCH'. TJ.. Arh_lA~ al th~ n..:-. ~ Copyngh, 2007, Arh.rws 8M ~uon. AU righu rescrwd.
34 Practice Tips: Wild Instruments, Surveyors Gone Bad, Confused Courthouses and Strip Clubs: Four Reasons to Use Caution When Drafting Deeds J. Cliff McKinney Contents Continued on Page 2
The Arkansas
awer Vol. 42. No.2
in this issue 2006-07 Arkansas Bar Association Sustaining Members
18
Lawyer Community Legacy Awards
35
Lawyer Disciplinary Actions
36
CLE Calendar
47
In Memoriam
48
Arkansas Bar Foundation Memorials and Honoraria
50
Classified Advertising
52
columns 5
President's Report James D. Sprott
Young Lawyers Section Report
9
Michelle H. Cauley
T
Arkansas Bar Association
2224 Cottondale Lane Little Rock, Arkansas 72202
HOUSE OF DELEGATES Delegate Distnct I-SE: Robert F. Thompson, 111
Delegate District 2-SE: Jerrie C. Higginbottom
Delegate Dlstnct 3-SE: Dennis Zopler. Barbara A. Halsey, Mark Mayfield Delegate District 4-SE: Kathie A. Kimbrell Delegate District 5-SE: Kent J. Rubens Delegate District 6-SE: Marshall Wrighl Delegate District 7-SE: Buck Gibson Delegate Olstnct 8-SE: Tim A. Blair Delegate District 9-SE: Brian Miller Delegate District IO-SE: C adlcrinc Lewis, Amhony A. Hilliard Delegate DIStrict II-SE: Phillip C. G r~n Delegate District 12-SE: James A. H amilton Delegate DIstrict 13-SE: Marrhew Shepherd. James McMcnis Delegate DIstrict 14-51:: Matthew Kimmel , Amy ~rttdman Delegate District 15·SE: Bryan T. McKinney, Tom Curry
Delegate Distnct 16-SE: John
1: Vines, Jon:l1han
D. Jones
Delegate Dlstnct 17-SE: James Ralph Jackson Delegate District I-Nl/l/: Heather Lipke, Lisa L. Kelley. Jason B. Kelley, Stephen Geigle Delegate District 2-N'vV: Brock Showalter. Buddy C hadick. Matthew R. Ourren . C hris R. Reed , David J. Whitaker, C harles H arwell. Tim Tarvin . Jason B. Duffy, Elizabeth Duffy. Paul D . Reynolds Delegate Distnct 3-NW: Farrah L. Fidder, Stephen Smith , James O . Cox, Amy Click-I-Ioroda. Kimberly Frasier, Rita Howard Delegate District 4·NW: P:mick McDaniel Delegate District 5·NW: 5 lCVt" B. Davis Delegate DIstnct. 6·NW: Roy Beth Kdley, John C. Riedel Delegate District 7·NW: Larry Spradlin , Stephan Hawks Delegate District 8-NW : Jerry P:m erson Delegate District I ·C: Causley Edwards, David W. Srerling, Brenda N. Stallings, Mark 1-1. All ison , Patrick D. Wi lson, Valerie Kelly. Gregory L. Crow, L.1CY Ken nedy. C. Tad Bohannon, Jerry Larkowski. GWl'n Rucker, Brian Vandiver, Mark McCarty. Jay Taylor, Berh Deere, Leon Johnson. Rebecca Denison, Michelle Cauley, David Fuqua, David G lover. Jay Shue, Eii7.abelh Smith. Brad L. Hendricks, Joel M. DiPippa, Randall S. Bueter, Gill A. Rogers. Mark Hodge. Brcrr Watson, Patrick Spivey, Danyel le Walker
law Student RepresentatIVes: Dan Obcrsre. University of Arkansas School of Law; Allison Rantisi and Kim O verstrttr. UALR William H . Bowen School of Law
2 The Arkansas l m'Ycr
W\-V\rV.arkbar.com
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President's Report
Landings
Every pilot knows his passengers wi ll grade his prowess as a pilot on the smoothness of th e landin g, regardless how challengin g the remainder of the Aighr may have been and how successfully he may have accomplished everything involved up to the moment of touch down. After a long first
flight rogerher in which we overcame strong surface winds on takeoff, howling headwinds during cruise, all manipulated smomhly. arriving safely and on tim e at the intended destination, but after a bumpy landin g, I was once asked by my passenger "Do you crash like that every time you land ?" No nmice is given to the successes of the flight. juSt the "greas in g" of me iandjng. or lack thereof. Such are the anomalies attendant [0 aviation. But o nce again , life is often no differenr. The meas ure of this year for our Association may be judged by the smoothness of my landin g at its conclusion in June. To wh ich I say: Bring on yo ur judgmclH! We are going to have a wonderful landing at the Annual Meeting in Hot Springs in June. Brian Rosc lHh al, Annual Meeti ng C hair, has taken a few ideas and created a stunning co mmemoration of an event fifty years ago that seemed dest ined to tarnish Arkansas histOry forever. Using original recordin gs of the oral argumelHs in the case of Cooper v. Aaron accentuated by live performances direcred by Judge Tim Fox. rh e Li rrle Rock school crisis of 1957 will come alive in rhe context of its lega l and social importance to our nation. Visits by so me of the Little Rock Nine and the Brown sisters from Brown v. Board of Education will punctuate and give personality to record ed words and faded photographs. It is an event I eagerly anticipate.
Bue Brian is on ly one of many volunteer leaders that wi ll make our landing smooth at the conclusion of this year. Professor John Watkins has led the completion of the wo rk of rhe Attorn ey-Cli ent Privilege Task Force. prepared a wrinen report. most of wh ich was approved by our H ouse of Delega tes, and filed a petition before the Supreme Court seeking modifi cation of seve ral rules of civil procedure. Past-Presidenc Bob Cearley has concluded his work as C hair of rhe Task Force on Jud icial Disc ipline Co mmiss ion Procedures, presented a written report adopted by our House of Delegates. and likewise filed a petition before our Supreme Cou rt to ah er the manner in which complaints against our judges are handled by th e Co mmi ss ion. Jack Lass iter has diligenrl y led a Jury Improvement Task Force to present proposed changes to th e jury system and has successfully guided the Legislature to adopt many worthwhile changes. And the list of leaders JUSt keeps growing. Jeffrey Ellis and her workaholic Membership Comminee have pushed us over their goal of 5,050 members of our Association. It is imposs ible to describe th e awe in which o ther associations in our surrounding states ho ld our Association and its ability w grow so large as a voluntary bar. We have succeeded in this because we co ntinue to focus o n our mem bers and th e benefits we can provide for them. In the words Jerry McQuire would no doubt have used had he been an Arkansas lawyer, "It's rhe members, stupid." C lose r to home, Judith Gray would always remind us to co nsider just how this decisio n or thar would affect ou r members. Thanks. Judith and Jeffrey! Great volunteer leaders must be held
It is impossible to describe the awe in which other associations in our surrounding states hold our Association and its ability to grow so large as a voluntary bar. We have succeeded in this because we continue to focus on our members and the benefits we can provide for them. together and supported by a dedi cated and determined staff. We are certainly blessed with eleve n of the most self-less. tire- less workers eve r to work with a bar association. Ours is o ne of the smallest staffs in all the South. bur without peer in th eir productivity. Th ey have d eftly handled a most difficult move to the new Bar Cenrer with very few interruptions of the acti vities of our Association, and all with a smile and resolve that all would eve nruaHy be well. And so it is, all well at the new Bar Cemer. Ir is my earnest hope rhat 311 of our members will take the rime to visit and to use this beautiful new home of ours. And our landing this year will be made smoo th. too. by the employment of Karen Hutchins as our new Executive Director. She brings a calm yet forceful reso lve to her wo rk that will assure ou r conti nued success for years to come. To yo u, then, my fellow member of the Arkansas Bar Association, 1 say "tailwinds and smoot h landings." It has been a great flighr together! â&#x20AC;˘
Vol. 42 No. 21Spring 2007
n,e Arkansas La",yer
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Young lawyers Section Report
by Michelle Cauley
Year in Review This past year has bee n one of many firsts for rhe Young Lawyers Section. This was the first ye.u we succeeded in funding multiple delegates to the American Bar Association Young Lawye rs' Division Meetings across the coumcy, rhe first year we succeeded in gcrcin g o ur Annu al Meeting our of th e much-too-small Mercury Tower Room in the Arlington. the first year we were able to secure o ur own elE speaker at the Annual Mee ting. and the first year th e YLS will sponsor its own H ospitality Suite at me Annual Meeting. Whew! That's a lor of firsts.
Although I would like to, I
Call11O{
take
the sole credit for al l thesc accomplishments. A w ise older lawyer o nce wid me that while victory has many fat hers. fa ilure is an orphan. I'm nor sure about the laner, but the success of the YLS this year has certain ly proved the former to be true. I have so many people to thank for the YLS' success this year, I hardly know where CO start. r firS[ and foremost wam to thank my Executive Council: Chair-Elect: Amy Freedman Immediate Past C hair: Patrick D. Wilson Secretary/Treasurer: Courmey Cro uch Central Srate Bar District: Amy Johnson 2007 H . Wayne Youn g 2008 To ny Junea u 2009 So uth & East State District: J . Edward Doman 2007 Amy Freedman 2008 Paul Bennet 2009 No rthwesr State Bar District: T.R. Brixey 2007 Wi lliam G. "Bill" H orton 2008 Farrah Fielder 2009 At Large Rcpresematives: Ka Tina H odge Gwen Rucker Elai ne Kn eebone Newslener Edicor: Tasha Sossamon Taylor
These folks are the cream of the crop. Each and eve ryo ne of th em have dedi ca ted significant ho urs CO arte nd our meetin gs. tadde community servi ce projects, travel across the cou nt ry to represent o ur YLS on a national level, and have worked hard to make our Sectio n what it is tOday - which is well-respected and admired. I also wall( to thank seve ral others from our Section who have conti nu ously answered my calls (o kay, and sometimes pleas) for vol unteers. These folks are the o nes that when as ked co judge a round or twO at the Mock Trial Competition have eagerly offered to help. These are the fo lks who signed o n, without co mplaim. to do so me of the less glamo rous wo rk of the YLS like review ing and shepa rd izing sectio ns of the Stature of Limitations H andbook. And. these are the folks who have called or emailed me Out of the blue without ever having met me before and asked. "what can I do to help?" T hese are the folks I want everyone reading this arti cle to know make our YLS great and make it the best and most active Section of our Bar Association: Cou rrn ey Crouch, Way ne Young. Tony Junea u, Farahh Fielder, Ben Cox, C liff McKinn ey, Gwen Rucker. KaTina Hodge, Jeff Spillya rds, Jacy Daughercy, Paul Bennen, C ri stina San Ro man, Ben Cox, Kynda Hernalldez.. Taura McDaniel, Amy Freedman , Jamie Jones, Serena G ree n, Eddy Doman, Kevin Lemley, Deidra Hall, Vicki Vasser-Murray, Bonnie Johnso n. Robin Allmendinger. Dawn Bicker. Sa rah G ree nwood , Chri s Corbitt, Kara Mikles, Shannon Smith . Amanda Horman, and Cade Cox. r know without a doubt that within fifteen minutes of this column being scm to the primers I will remember a half dozen or more people whose names I did not lise. To those of yo u that fall imo that half dozen , I sincerely thank you for all you do for o ur Section, and please forgive my oversight in fa iling co list you by name.
My year as C hair of the You ng Lawyers Sectio n has been somewhat different than I expected. and in many ways it has been much easier than I expected. I have no delusions as (0 the reaso ns for these pleasant surprises. It is due excl usively to the hard work and dedi ca tio n of all the people I' ve mentioned in this column coupled with the exceptionally skilled staff of the Arkansas Bar Association. Our Section could not have accomplish ed as much as it has without these wonderfUlly dedicated people. Th is June when I turn over the gavel. I have no doubr that our Section wi ll be in good and secure hands. T he up and coming leaders of our Section provide even more promise for the future than I cou ld have imagined just a few years earli er. If you haven' t been active in our Sectio n in th e past, jt is not too late. There will be several opportunities to sign up for projects and commiuccs and visit with one anm her at th e Annual Meeting in Jun e. So. please make an effo rt ro join us ar the Arlington-and don't forget co look for the signs po inting the way to the YLS Hospitality Suite! See you all in Hot Sp rings! _
Join the YLS for Champagne and Chocolate Covered Strawberries and elect the 2007 -08 Officers Thursday, June 7 3 :30-4:30 p.m. Magnolia Room Arlington Hotel Hot Springs
Vol. 42 No. 21Spring 2007
TIle Arkansas La"ycr
9
In sp ring 2006, rhe f.1culry of [he School of Law selecred [heir colleague Professor Cynthia E. Nance to beco me Dean of the school. This was an histo ric occasio n and received much 3n cnri o n in rhe media. Professor Nance became rh e first woman and th e first person of color [Q be nam ed Dea n. In 2005 and 2006, rh e Un iversity of Arkansas School of Law, Fayetteville. was named as one of rh e mos t diverse law schoo ls in rhe country by U.S. News and World Report magazine. The Law 5wdenr Division of rh e American Bar Associatio n recognized this achievement as well, bes{Qwi ng its 2005 Henry Ramsey, Jr., Di ve rsiry Award on Associate Dean for Students, James K. Miller. In 2006, rhis school had me fifth highesr percenrage of African America n stud ents of all law schools rated by U.S. Ne;:w~ allli Wo rld Repon. We arc proud of these facts. We also arc proud of th e fact ch ar th ese acco mplishmems were made in rhe same period we increased the average LSAT scores and GrAs of o ur elllerin g classes. In add irio n ro o ur srudem popularion, rhe law schoo l has a hi gh perce ntage of faculty members from underrepresenred groups. O ne Hispan ic professor has bee n a member of rhe faculty for forty yea rs. Two Afri can American professors have been at th e school for mo re than ÂŁ\vcmy yea rs, while Dean Nance is co mpletin g her 13 th yea r with the school. A Native American female professo r has been named Assoc iate Dea n and a female African professor ea rn ed tenure two years ago. In all, professo rs from underrepresented groups make up over 15% of the Faculty. Gender diversity also is a hallmark of the sc hool's f."lculty, with wom en co nstituting almosr 44%. This is nor the first rime that the law school has been laud ed for il.S diversiry dforcs. Fifry- ninc yca rs ago, in January 1948, under Dean Robert A. Leflar, rhe school admined its first African American law stud enr, Silas H . Hunt. That ad miss ion made the University of Arkansas the first publicly-supporced school in the South to admit Afri ca n Ameri cans witho ut a co urt o rder. The event made headlin es across the country and , while life at the schoo l was not easy for Hum and the five o th er Afric.'lll Am erica n men who followed him in rh e nex t few yea rs, the Schoo l of Law had made a powerful sta temenr.
10 The Arkansas LlII'Yer
www.ao1<bar.com
The world has changed since 1948. and so has the state of Arkansas. While African America ns hisrorica lly have been the dominanr minority gro up in Arkan sas, constitutin g 27% of the population between 1890 and 1920, that percenrage has dro pped stead ily since. In the 2000 Census. Afri ca n Ameri ca ns compri sed 15.7% of the popu lation. In 2004 , the percentage was 15.6. O ther minority groups are add ing to Arkansas' population. Between 1990 and 2000, th e Hispanic and Asian populations in Arkansas increased significa ndy. Hispanic residents tmaled JUSt under 20,000, or 0.85%, in 1990. In 2000, rhe Hispanic roral was 86,866, or 3.25% of [he srare's popu.lation , an increase of 337%.' Between 2000 and 2005, the Hispanic popu lation grew by another 40.066 (46%).2 Arkansas's Asian popu lari o n, while mudl smalle;:r than th e other tWO mino ri ty groups, also grew substantially bct\'Veen 1990 and 2000. In ten years. As ian residems of Arkansas moved from 0.5% of irs popularion , 12, 125, ro 0.75%, or 20,220.3 Five years later, this population comprised 0.9% (25,249) of the state's res idcnts. 4 We ca n ex pect the numbers will co ntinue ro grow. This shift in the populatio n makeup is mirro red in the country as a who le. In 2000, CNN repon ed that the "fasresr-growing minori ty pop ul at ions" were Asians and Hispanics. 5 In 2006. U.S. Census repo n s indicate th at min o rity gro ups co nstitute one-third of rhe nation's popuJation.6 Apart from rhe growth of minority groups in th e population, rhe internet and other means of com mun ication have shrunk the world in which we live. Few co mmunities ca n ignore the rest of the world these days. Recognizing th ese facts, John White, C hancellor of the Unive rsiry of Arkan sas, Fayerreville, is determined that the University wi ll train grad uates ro participate in this large r and morc diverse world. He has charged his administrati o n and dea ns to crcare a community that mirrors rhe state in populatio n diversity. and ro develop a curri culum [hat ed uca tes students about working and liv ing amidst differe nt cultures and ways of life. T he School of L'lW is a majo r parr of the Univers ity's vision of rhe furure. Two actio ns by the C hancellor to promme his vision of djver-
"In the future, Arkansas will need lawyers who understand the legal needs and desires of clients from diverse ethnic and cultural backgrounds and who can communicate those needs in the courts, before agencies, and wherever advocacy is needed. The State also will require more lawyers who are themselves ethnically diverse. "
siry have involved th e School of Law. The life o f the schoo l's first Africa n Am erican studcnr has been ho no red by the creation of the Silas Hum Legacy Awa rds in 2006. T he awa rds are given [Q Afri can American graduates of the University who have made a signi fica nt cofl[ ribution ro th e Un ive rsiry. the state, the nario n, and rhe world. Two of th e ten in augural recip iems were grad uates of the School of Law: Ro d ney Slater (UA Law '80), form er Secretary fo r T ranspo rcario n and cu rrently a member of the Pan o n Boggs. LLP. firm in Was hington , D .C., and George W. B. H aley (UA Law '52), o ne o f the schoo l's Six Pio neers and fo rmer Ambassador [ 0 The Gam bia under fo rm er Pres idem C linro n. Th e Unive rsity also spo nsored the making of a documclHary o n Silas H unt's life, which was prese nted to the Uni versiry communi ty in mid-November 2006 and is being shown thro ughom the srate. T he documentary was a cont ribut in g facror in acquaintin g Governor Mike Beebe wirh Hun r's hisco ry and his declaring February 2 (the dare o n whi ch Hunt was admined ro rhe School of Law) to be "Silas Hum Day" in Arkan sas. Two of the law schoo l's faculty we re inrerviewed abo ut the cvenrs of 1948 and appear in the film : Professo r Robert B. LeAar and this author. Leaders of the legal profess io n. in Arkansas and natio naJ ly, also have no ted the p rofession's lack of d iversity and rhe need fo r im prove ment. Th e Arka nsas Bar Associatio n d evelo ped rh e Co mmiss io n o n Di ve rsity in 2 000, whose purpose is to educare m embers o f th e bar co ncerning the value of d iversity, and to pro mote ethnic di ve rsity in rhe Bar, the Cou n s, and the Arkansas Bar Associatio n. T he C ommiss io n has sponso red programs at rhe Associatio n's annu al mcc tings and at rh e mid -yea r m eerin gs, orga nized a seminar conce rnin g dive rsity in the legal pro fess ion, and hosred a job fair to p romote diverse employment. Th e American Bar Associati o n has crea ted the Pres identi al Ad viso ry C oun cil on D iversity in rhe Profess io n, wh ich offers p rograms and services to improve di ve rsity in th e "pipel ine" [0 the lega l profession. in an effo rt to increase the number of people of color o n the rrack ro becom ing lawyers. Virtually, every specialty group in the ABA has its own di ve rsity initiatives? Other lega l associations also see the need for d iversity in th e profession. O ne example is the Associat io n of Corpo rate Counsel, whose members are corpo rate law d eparrmenr and law fi rm leaders. T hese lawyers, and their co rpo rate c1 ienrs, real ized that rh e poo l of job ap plicants is shifti ng and hiring sta ndards based o n a single culture and backgro und limits the thi nking and creativity o f legal se rvices. The organiza rion has creared a " Pipel ine Kit" that aids co rpo rate co unsel to increase "the pool of
ca nd idates o f colo r who will constiture to mo rrow's p ro fessio n."8 I n the future, Arka nsas will need lawyers who und erstand the legal needs and desires of clients from dive rse echnic and cultural backgrounds and who ca n communicate those needs in the co urtS, befo re agencies, and wh erever advocacy is needed . T he Srare also will requ ire more lawye rs who arc themselves ethn ically diverse. Law graduates. even th ose who intend to practice in their ho me co mm unities, cannot ass ume th ey need only a basic traditio nal leg::t1 educatio n. An y lawyer will be expected to servi ce hi s o r her cl ients whereve r their legal needs requi re. including the settli ng of property cl aims in a fo reign country o r rhe negoriaring of a co ntract wirh legal cou nsel trai ned in the civil law system. The School o f Law is respondi ng to the changes in Arkansas, th e nario n, and th e wo rld. by adj usting co anticipated d emands. In addition to an already broad sea rch fo r new students that includes all underrepresented gro ups, the School of Law wi ll be m aking a special effo n to enco urage en rollmenr by Hispani c coll ege gradu ates. Th is foc lls is sugges ted by th e growth in rhe Hispanic po pulatio n in No rthwest Arkansas, and allows th e school co create a number o f new "partnerships" in its effo rr co acq uaint high schoo l and college srudents wirh the field of law and lega] train ing ar the University of Arkansas, Fayetteville. The Dean's recent visit to the Marian na Islands, a Unired Stares Protecto rate. has raised imerest in arrending this law school among so me Paci fic Islanders. So me o f our graduates are helping to diversify the workplaces they enter. Fo r example. third-yea r srudenr Camero n M cCree wil1 be cl erki ng for Eighth C ircuit Jud ge Lavi nsky Smith fo llowi ng his grad路 uati o n. Tam la J . Lewis (UA '0 5) practi ces with the Mitchell, Williams. Selig, G ates & Woodyard fi rm in Roge rs. M auricio H errera (UA '02) is an associate with rhe Rogers fi rm of Matthews Ca mpbell Rhoads McClure Th ompson & Fryauf. Nikki C ung (UA '96) recendy was named a partner in rhe Kurak Rock firm's Fayetteville offi ce. Sonya Jin Dodson (VA '03), currendy employed by Wal-Mart Inc., bega n her legal career with the Mashburn & T..1ylo r fir m (now Taylo r Law Firm) in Fayen ev ille. T he school also is b ringing diverse lawyers in co co n tact with srudents o n a regular bas is. No rthwest Arkansas, particularly. has see n a growth in natio nal and international co mmerce created by the ho me o ffices o f Wal-M art and Tyson Foods. A progra m awarding an annual scho larship fu nd ed by Wal-M art Inc. fo r a m ino rity srudenr provides an o ppo rtuni ty for an o rneys within the Wal-Mart legal department to meet and m ingle with students. Th is spring, the program will include a panel d iscussion on th e value of di ve rsity in co rporate p ractice and will hera ld the start o f a men ror in g program berwee n Wa.l-Mart lawyers and students.
Juditb Kilpatrick is currently Professor of Law and Associate Dean for Diversity, Planning, alld Special p,.ojects, at tbe Unive,.isty of Arkallsas Sc"ool of Law.
Pho to by Charles W. Pepper
Vol. 42 No. 21Spring 2007
TIle Arkansas La"y er
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Through its Pro Bono Program, the school will provide currem studems with opporrunities ro work with nonprofit and cOll1muni ry groups thar serve underreprese nred groups. The school also plans ro invite high school studelHs to attend existin g law school act ivities, e.g., internal and ex ternal co mpetitions, thus exposing them to the kinds of activities in wh ich lawyers participate. Faculry and students will speak with hi gh school and community groups about the law. creatin g a "prese nce" in the coml11uni ry. The School of Law is exploring new cou rses and seeks to expand traditional ones so that students will be provided with information that will help their unders[3nding of the differential im pact laws may have on diverse cultures and co mmunities. For exa mple, the school hopes ro benefit from Wa l-Mart's highly-p ubli cized decision to em phas ize diversiry in its hiring of attorneys by bringing so me of those lawyers ro the school ro teach various courses in which their cross-cultural kn owledge and ex perience can provide information rhat will benefit our stud enrs' legal ed uca ti on. Wal-Mart's legal department is headed by Tom Mars (UA '85). Many of the School of Law's cu rrent students already are awa re of the changes in sro re for Arkansas, and energeticall y work co expand rheir horiwns and those of their classmates. Seventeen student o rgani7..arionl' exil'r ro provide fellowl'hip and foc ul'ed discussion on va ri ous aspects of the law and life. In addition to the more traditional groups, such as a chapter of the American Trial Lawyers Association (AT LA) and the Arkansas Law Review, the school supports chapters of the Asian Pacific America n Law Student Association, Black Law Student Associatio n. Ch ristian Legal Sociery, Employment and Labor L'lW Society, Environmenral Law Sociery, Equal Justi ce Works, The Federalist Sociery, H .L.A. Hart Society. Intern ational Law Sociery. Media Entertainment and Sports Law Association, Parents Attending Law chool, and the \'(fomen Law Students Association, ro name a few. They will be joined th is year by a chapter of the Hispanic National Bar Association. The student groups also work together ro provide informati on ro the law school communiry as a whole. For example, seve ral student organizations produced programs of note in the fall 200G semester. Three groups. rhe \Vnme:n 1..1W Smde:nrs Assnci:uinn . rhe Rb ck 1.1w Srudenr Association , and H .L.A. Hart Sociery, joined together to spo nso r the visit of Ms. Sharon Bernard, the first African American woman graduate of the school. Ms. Bernard had practiced for severa] years in eastern Arkansas. then moved to rhe S[3te of Michi gan where she became a high-ranking bank officer. She made presentations to (he fac ulty and stude nts during the course of her visit. The new Asian Pacific American Law Student Associati on spo n-
Need labels? Your Association maintains the largest and most accurate database of Arkansas attorneys.
sored a visit to t.he school by Caley Vo, an associate with the firm of Wright, Lindsey & Jennings in its Rogers' office. The ATLA and Env ironmemal Law Society groups sponso red a party that benefited Fayetteville's Seven Hills Homeless Shelter. The Black Law Students Association sponsored the showing of a documentary about the Innocence Project, in which law students work with pracnclllg lawye rs to re-i nvestigate co nvicti ons that may have been erroneous and, where errors are found , make efforts to co rreCt them . The Environmental Law Society spo nsored a screening of "The Invisible Children: a documentary about the abduction of nearly 30,000 chi ldren in Nonhern Uganda. All our students bring their diverse "stories" - their li fe experiences, viewpoints, and ideas - ro th e study of law. Their interactio ns and exchanges benefit rhe entire school. The students, and faculry, lea rn from each other about how difference affects the law and how mey ca n affect the law in different ways. This school has been, and co ntinues to be, a leader in diversity. We are proud of this traditi on and we accept the challenge of living up ro the legacy by educa nn g our students to practice law in a chan ging global com muni ty. Endnotes I . David Rasmussen. "The Hispanic Population in Arkansas: A the Hispanic Co untS fro m 1990 and 2000 Compa ri son Censuses," 1 Ark. Demographic Research Brief, No.3 (Nove mber 200 I), www: demograp hy.ualr.edu. 2. Arkansas - Fact Sheer - American FactFinder, 2005 American Communiry Survey Data Profile Highlights, htrp: llfacrfinder.census.gov/servlet/ACSSAFFFacts a nd select "Arkansas" (v isired
or
2/1/2007).
3. The 2000 Arkansas Census - Popularion Growth By Race, h rrp:1 lIirtierock.abouLcom/library/weekly/aa03200 I e.html (visited 2/ 112007). 4. Arkansas - Fact Sheet - American FactFinder, 2005 American Co mmunity Survey Data Profile Hi ghlights, http: //factfi nder.census.gov/servlcr/ACSSAFFFacts and select "Arkansas" (visited 2/1/2007) . 5. "\.e"",:II.';; fi gllfc'1O I'hnw dramari c growth in Asian. Hispanic populations," CNN.co m, 8/30,2 000 ,
hrrp:llarchinves,cn n.com/2000/US/08/30/m ino ri ry.pop ulationI. G. "Nation's Population One-Third Minority," U.S. Census Bureau News, 5/1 0/2006, hrrp:l!www.census.gov/PressRelease/www/releases/archives/population/OOGSOS .html. 7. See http://www.abanet.organdsearch for "d iversity." S. See hrtp:llacc.co m/diversiry/pipeline/. _
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n,e Arkansas Lawyer
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AN "INDIVISIBLE" COMMITMENT: THE BOWEN SCHOOL OF LAW'S EFFORTS TO CREATE A DIVERSE COMMUNITY H,- Aaron N _Tn- lor and And,- M_-L,,-Ior -
Access to legal education (and thttS the legal profession) mttSt be inclttSive of talented and qualified individuals of every race and ethnicity, so that aU members of our heterogeneottS society may participate in the educational instittttions that provide the training and education necessary to succeed in America. Supreme Court JttStice Sandra Day O'Connor Majority Opinion, Grtttter v. Bollinger
As Justice O 'Connor proclaims above, diversity within legal ed ucation is of profound importance to all of us. Law schools are the training grounds for [hose who will uphold the co ncepts on whi ch [his cou ntry and our system of laws arc based. The law touches eve ryone, irres pective of race, gender, o r class; rhus, it is imporram mar rh e legal profess io n reAects the diversity of ou r society. The UALR Wi lliam H . Bowen School of Law has lo ng been co mmitred [a training asp iring lawyers and leaders CO work for the betterment of sociery. The diversiry of our emire co mmunity refl ccts that co mmirmem . O ur students. facul !:}'. administration and staff co me from an array of ethnic, academi c, socioeco nomi c, and geographic backgro unds. They bring uniqu e experiences and insights to Bowen and , in the process, enhance th e academic and social disco urse within OUt institution. At Bowen, we attempt [Q weave co ncepts of inclusio n in to everything we do. We understand that diverse student bodies are nOt possible without diverse "pipelines." We recognize that in order to effecti vely prepare ou r srudents for today's legal profess ion, our faculcy's academi c interesrs and our curriculum must encompass diverse subject areas. Las tly, we acknowledge that for Bowe n to truly fulfill its role as a "training ground" for Arkansas's futu re leaders, we mUSt foster lasting partnerships with the co mmuniry. Pipeline The centerpiece of Bowen's efforts to fill the law school pipeline with diverse prospects is the Pre-Law Undergrad uate Scholars (PLUS) Program_ The program , funded in large part by a grant fro m the L1.W School Admiss io n Council (LSAC) , is mrgeted at persons belonging [Q groups traditio nally underreprese nted in law school. The grou ps as defi ned by the grant include ethni c minorities as weU as those who have endu red significa nt econo mic and ed ucational disadva ntages. Participants in th e PLUS Program spend about four weeks on our 14
l1le Arkansas Li"ycr
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campus undertaking vario us activities whi ch seek to expose th em to th e ri gors of law school and the legal profess io n. while also preparing them for the LSAT and the admissio ns process. Parti cipants come from all ove r the co untry and are provided room , board , and a stipend. Bowen is o ne of o nly eighr law schools selecred by LSAC to host a PLUS Program, and this summer wi ll be our fifth year. Over 100 prospective students have participated in th e program, with many of them go ing on to gai n admission to law school, incl uding Bowen. The gram for the PLUS Program is set to end this year, but Dean Chuck Goldne r has pledged to do whatever it takes [Q co ntinue th e program beyo nd the end of rhe gram. Our recruirment strategies are informed by a desire to cast a wide net in encouraging appl icatio ns for adm iss io n. Bowen rep resentati ves artend rec ruitment events an d host admiss io ns seminars th roughout the yea r. We frequently visit histo ri call y black colleges and universities. as well as other instituti ons with large numbers of minority students. As a result , the diversity of our appl ica nr pool has increased, alon g with the ove rall number of app licati o ns. Both of th ese trends are contrary to those o n the natio nal level. Each Februa ry, as parr of Narional Min ori ty Recfuitm em Month , Bowen sponso rs the Minoriry Pre-L1.w Day where prospective Stu dents are invited to o ur ca mpus for events aimed at exhibiting Bowen's diversiry and the importa nce of diversity in the profession . The program is very effecti ve at ex posing pros pecti ve studem s to legal practitioners-many of th em Bowen grads- who can serve as role models and objects of positive emulation. Our goal is to nor only inform, bur also inspire. Bowen also seeks to increase diversity through its scholars hip progra m. When former D ean W ill iam H . Bowen, for whom the school is named, established the Bowen Scholarship Program, one of his goa ls was to make legal educa rio n mo re fin ancially accessible. Si nce its inception, the scholarship program has provided hundreds of thousands of doll ars in aid to hundreds of stud ents. Many of these
as well as gro ups mrgeted ro students who are interested in specific areas oflaw, such as intellectual pro perty.
students wou ld not have otherwise been able to affo rd a legal educatio n.
Student body a Uf studem body is a wo nderfu1ly diverse grou p. Bowen ranks in the top q uarrile of law schools in ethnic dive rsity, and our goal is to increase diversity by bene r reAecti ng that of the naoon. In recognitio n of our age dive rsity, Princeto n Review rece ntly named Bowe n o ne of the To p 10 law schools "Most Welco ming of O lder Srud ems." Geographically, Bowen students hail from all pan s of Arkan sas, and in te rest amo ng no n- resident applica ms increases every yea r. Socioecono mic diversity abo unds as well. Many of our students are first-generatio n college grads. wh il e others co me from long lin es of lawyers and other professio nals. A vibrant co mmuni ty where students embrace their collective d iversity whil e appreciating their commo n goals results from th is richness oflife experience. O ur Admiss io ns Commi ttee plays a significant role in fostering student di ve rsity through iu "holistic" approach to selecting students. The co mmittee eschews ove r-reliance o n specific factors, such as the LSAT, and endeavo rs to assess th e "whole perso n." Perso nal sta temems arc hi ghly val ued co mponents of the application because they al low applicants to tell tiJt!ir stories. AJo ng with other importa nt criteri a, personal statements aid our Adm iss io ns Co mmittee in its comp rehensive review of each applicant. It is no wonder that entering classes at Bowen become stro nge r and more diverse each yea r. Various ad min istra tive offices at Bowen help ensure that all srudents, irres pective of background , have access to academic support, caree r/ networking assistance, counseling se rvices, and bar preparatio n. T he goal, once again. is to create a comm un ity where all types of peo ple can succeed, whether o r nor th ey fi t the tradi tional profil e of a law stude nt. Stude nt life at Bowen is o ne of in volvemem and act ivity. The list of studenr groups reAects the di versity of rhe students themselves. We have active affi ni ty gro ups stich as the Black Law Students Association (BLSA) and the Hispanic Law Students Association (H LSA). Politicall y, we have left-leaning and right-leaning groups, incl ud ing Young Democrats and You ng Republicans. We have a Part-t ime Students Associatio n fo r people enrolled in th at divisio n,
Faculty and Curriculum Bowe n recognizes that a di ve rse stude nt body by iuelf is not eno ugh ro create rh e type of co mmuni ty we arc seeking. The faculry and course selection must also reflect th e ideals of inclusio n that inform other critical aspects of our ex istence. As such, the Bowen facul ty is a dive rse group of scholars. practi tio ners. and teachers. Both our reaching and li brary fucuhi es rank high amo ng law schools in ethni c and gend er baJa nce. Facul ty members co me fro m many d ifferent profess ional backgro unds in the pu blic and priva te sectors in Arkansas and o ther st3[es. T he Bowen fac ul ty also possesses di verse academi c interests all owing the school to offer wide-ranging dectives. In this day and age, it is critical fo r law students to be exposed to broad subject areas. Two co urses th at exempli fy Bowen's app roach to well-rounded academic train ing are C ritical Race T heory and Law & Human Sex ual ity. C ritical Race T heory, ta ught by Professor Adjoa A. Aiyetoro, provides a fo rum fo r students to discuss iss ues of race and the role it plays in o ur justice system and society. T he course does not advocate a particular view; rather. it seeks to spur academic discussion and chall enge students to think abo ut releva nt issues. In Professo r Zachary Kramer's Law and Sexuali ty course, students ex plore how societal co nn fUCtS affect the rights of sexual mino rities. Legal issues rel ating to same-sex marriage. sexual harass ment. polygam y, and other related subject areas are studied in detai l. Professo r Kramer sees his co urse as askin g "foundatio nal questi o ns aboU[ how we o rder society." The intellectual openness requ ired by these courses is encouraged across o ur curriculum. \Y/e are attempti ng to trai n lawyers who will be effective in coday's society, and no matter where o ne stands o n a pa ni cular issue, he o r she sho uld first be kn owledgeable of it. Community Partnerships Co mmuni ty partnerships are criticaJ co Bowen's institutional di versity as wel l as its attempts to tra in lawyers co represe nt diverse interes ts. AJ I aspects of the Bowen co mmuni ty are involved in building lasting relatio nships in the greater co mmuni ty. For students, co mmuni ty service is both a curricular and extracurricul ar activiry. O n th e curricular side, o ur legal cli nics allow stud ents co practice law, under the supervision of a faculty member. T hrough the clinics, stud ents gai n practi cal experience in a wide array of rel evant legal areas, while at rh e sa me time help ing fi ll unmet legal needs of the com muni ty. Students in rhe Litigatio n C linic represe nt cl ients in th e areas of juvenile delinq uency and fa mi ly law. C linic students lea rn substantive law. wh il e enhancing skills in cond ucti ng client inter-
Am'on N. Taylor is the assistant dean for admissiolls at the William H. BOWell School of Law.
Andy M. Taylol' is the assistant dem. fOl' academic support at the William H. BOWell School ofLaw. Vol. 42 No. 2/Spring 2007
111e Arkansas l m'Yer
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views, drafting pleadings, negoriating, and prepari ng for trials. In the Mediation Cli nic, srudenrs gain val uab le experience in the rapidly expandin g area of Altern ati ve Dispute Resolu tion. After ex tensive training, clinic studenrs act as mediato rs in dispu tes relaring to child abuse and neglect, juvenil e delinquency, custody and visitation, special educa tion, and small claims. SrudelHs in th e Low Inco me Taxpayer C linic represent cl ients involved in dis putes with me IRS. C linic students gain litiga tion and nego tiation ex peri ence, wh ile acqui ri ng signifi cant knowledge of tax law. T he Pu blic Service Externship is ano ther curricular means for students to gain practical ex perience while servi ng the co mmuni ty. Ex ternship students work in serrings of wide-ra nging relevance, such as judges' chambers, legislative offices, and agencies li ke the Federal Public Defender and Arkansas Advocates for Children and Famili es. Extracurri cular endeavo rs are both legal and non-legal in nature. For example, H LSA members served as poll moni tors during me last election and hosted a political fo rum discussing the effects of Hurrica ne Katrina on minori ty communities. Last year, H LSA also donated over 450 pou nds of food ro the Arka nsas Food Bank and "adopted" a needy fa mily ove r the holidays. BLSA recently sponso red :l 13w Ca mp fo r area hi gh school and college stud ents. Members also mento r area youth duough the Street13w Program. O ur professo rs lend their expe rtise to th e co mmuni ry in va ri ous ways. Professor Sarah H . Jenlci ns hosts lectu res and provides pro bono legal services to small African American churches. This work has inspired her to publish three scholarl y papers proposi ng changes to areas of co mmercial law that have bee n pa rticula rly deleterious to peo ple she has counseled while vo lunteering. Professo r Aiyetoro is
spea rheadin g Bowen's effOrtS ro plan the fi ftieth anniversary co mme morat ion of the desegregation of Central H igh School. T he overall plannin g is being led by the Central High Integration 50th Ann iversary Co mmission. With rhe co mmission, Bowen hopes to provide a forum for the co mmuni ty to reAecr on this historic evem and how ir affected the interpl ay between race and educa tion in this country. Protessors Jenk ins and Aiyeroro are just twO examples of faculty members who serve the co mmuniry in an array of ways. At Bowen, we see our ro le as legal educators in both academic and social co ntexts. The al l-enco mpassing sco pe of the law co nfers upon LIS a duty ro our students and society as a whole. T hus, we must make every effort to foster di versity in th e peo ple who make lip Ollr co mmuni ty, as well as the courses and ex peri ences th at make up our curriculum . We must be acr iveJ y invo lved in the grea ter com muni ty. so as to nurture lasting rel ationships that benefi t society and, in the process, our srudenrs. We agree with Jusri ce O 'Conn or in her bel ief that "[eJffective participation by membe rs of all racial an d ethni c groups in the civic life of our Na tion is essential if the dream of one Narion, indivisible, is to be realized ." And at Bowen we apply this co ncept to al l fo rms of di versity in attempting to crea te an "indivis ible" communi ty akin to Just ice O'Conn or's ide;:al. _
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Vol. 42 No. 21Spring 2007
TIle Arkansas Lal'Ycr
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Vol. 42 No. 2/Spring 2007
TIle Arkansas umye,
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Cooper v. Aaron by Judge Wuey Branton, Jr.
Attorneys (I to r) William T. Coleman, Jr., Thurgood Marshall and Wiley A. Branton arrive at the Supreme Court to present t h e NAACP's arguments in Cooper v. A aron.
The events surrounding th e Lirrle Rock Central High School crisis of) 957, which led [0 rhe U.S. Supreme Co urt d ecision in Cooper II. Aaron, 358 U.S. I (1958), was th e most imporranr co nstitutional crisis ar thar rim e sin ce rh e C ivil War, when rhe souch crn srares acrcmpted co secede from rhe Union. Now 50 yea rs larer as the sto ry co ntinues CO be rold . the significa nt role of Wiley A. Branto n, as the lead anorney for the black plaimiffs in th e case known as Cooper v. Aaron, has often been igno red , understated , o r simply nor widely kn ow n. The U.S. District C Olirt liriga rion (Aaron v. Cooper) which led to Cooper v. Aaron beca me the vehicl e through wh ich rh e Lirde Rock N ine were ab le to integrate CemraJ Hi gh School. W ith out rhar litiga tio n in place. the 20 TIle Arbn'"' J;",y er
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cri sis and res ultin g integration at Central Hi gh would nor have taken pl ace at chat time. This article 3ncmprs [Q explain how and why Wi ley Braman beca me invo lved in thi s landmark litigation. As the 1950s began. the United States co uld hardly be called the land of the free, nor were irs citi zens treated equally. While the Sourh stands our in hisrory with its legally recognized segregation and "Jim Crow" laws. mere was virtua ll y no pan of rhe United Srates whe re black peop le did nor face so me form of racism or discrimination based so lely upon their Sta tuS of being black, colored, o r Negro. A number of things came rogcrhe r in rhe 19505. which caused rh e America n civil rights movcm cnc CO rapidly accelera te and achi eve significant ga ins with res pecr ro the legal stams and oppo rmn ities for
Americans co uld no longer ignore the rac ial inj ustice in America. Fourth, a growing number of black Americans had an increased ex pectancy fo r th eir opportun ities in America. Having fou ght for the freedom of others in both World War II and the Korean War, black war veterans now had an ex pectation of being free at home. And fifth, th ere were a number of leade rs who were simply right for the time. Dr. Manin Luther King, J r., stands out, but there were many Other people as well who rose to the occasion and played a significant role in th e civil rights movement. It was imo this background that Wiley A. Braman arrived on the scene. General Background Wiley Branton was born in the segregated So uth, Pine Bluff, Arkansas, in 1923. One of his unique characteristics was that he ca me from a fam ily that had [he ability [Q stand up to white people in a way in which mOSt black people were not able. His famil y valued education. While his fath er had less than a high schoo l edu cation, his mother was a graduate of Tuskegee Institu te, an d [here were a number of college educa ted people on his mother's side. His family owned their own business, a cab company. so they were nOt rel iant upon white people for jobs and income. Education, some mod es t measure of finan cial independence, and a sense of self-worth and co nfidence gave W iley A. Bramon some of the too ls that he would need la(er in life (Q make his comriburion (Q the civi l rights movemene Wiley Branton was a civil rights fighter long before he was an attorney. In 1948, afrer he returned home from the Pacific theater in World War II , he was an active member of the NAACP. As part of a vOter education effort, he prepared a sample ballot to teach people how to mark a ballot. It was marked "sample balloe " When ce rtain white officials learn ed of his efforts, he was prosecuted fo r and co nvicted of vOter fraud. He may have been the only perso n ever prosecuted under that statute. His co nviction was affirmed on appeal to th e Arkansas Supreme Court, but C hi ef Justice G ri ffin Smith wrote a dissenting opinion in which he stated tha t even a cas ual revi ew of the record indicated that Wiley Bramon was merely engaged in voter educa tion and nOt vo ting fraud as contemp lated in th e sta tute, and he wo uld have reversed the co nvict ion. See Branton y. State, 2 14 Ark. 861 (1949) . This negative ex perience with the legal system was one of th e many experiences which later c.1 used Wiley Branton to go to law school.
black Am ericans. First, in 1954, [he United States Supreme Court issued its two land mark decisions in Brown Y. Board of Education, 347 U.S. 483 (Brown I) and 349 U.S. 294 (Brown fl), which reversed and st ruck down [he so called "separa te but eq ual" doctrin e previously announced in PlesS] v. Fergmon, 163 U.S. 537 (1896) . Moreove r, Brown potentially had significant implica tions for the everyday lives of black children beca use the Supreme Co urt exp ressly held that "in the field of public education th e doctrine of 'sepa rate but equaJ' has no place" and that "separate educa tional facil ities arc inherently unequal." Second, th e National Association for the Advancemenr of Colored People (NAAC P) and the NAACP Legal Defense And Educa ti onal Fund (LD EF) had been pu rsu ing a careful legal strategy to advance the ri ghts of black people. Third, the spread of relevisio n through rh e homes of America was extremel y important. As th e man y violem and hateful images of racial oppression began to be aired before a natio nal and world audience, man y
Obtaining a Legal Ed ucation Pine Bluff attorney W. Harold Flowers accompanied Wi ley Branton and Silas Hunt to Fayetteville in 1948. The plan was for Silas Hunt to enro ll in the law schoo l. Wiley Branton attempted to enroll in the undergraduate school to complete his undergraduate
Wiley A. Brattton, Jr. is a Circuit Court Judge for Pulaski and Perry Counties
Vol. 42 No. 2/Spring 2007
The Arkansas Lawyer
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studi es, whi cll bega n ea rlier at segregated AM & N (now University of at th e triaJ court level co ntending that the co nfession was coerced . Arkansas, Pine Bluff), but had been inrerrupted by the war. He also challenged the systematic excl usion of black people fro m the An orney Flowers acco mpanied the pair in case there was any trou- jury pool. He lost all the way th rough state co urt, Set Pllyne v. Stllte, ble. Silas Hum was accepted into me law school and became the first 226 AIk. 9 10 (1956), and took an appeal to the U.S. Supreme black perso n admined. W iley Bramon was denied admission to the Co urt. In Payn,v. Arka/IJfJ.f, 356 U.S. 560 (1958), the U.S. Supreme undergraduate school. He returned to Pine Bluff and re-enrolled in Co urr agreed mat rhe confession was coerced and reversed the state co urt co nvicri on. Payne go t a new triaJ . was again co nvicted , but was AM &N co complete his undergraduate studi es. Upon graduation from AM &N, \Viley Branton applied for given a life sentence and spared the death penalty. adm ission ro me law school at FayettevilJ e and was accepted. In In another early c.1se represem ing a black cl ient involving a la nd 1949, he was in his mid-twenties. was married, had three child ren, dispute pending in Star C ity, W iley Bramon had received word that and was sti ll running the famil y's if he showed up in Star C ity, he could taxicab business in Pine Bl uff. ~ai ex pect to meer wit h violence. H is Because me uni ve rsity did not proresponse was to strap on his military iss ued Colr 45 se mi-autO, which was vide housing for its handfu l of black legal to wear at th e time as lo ng as it students, he was forced to buy a 1m was nor co ncealed, and of the type and build a house in Fayen eville so that he could have his fam ily with issued by the mi litary. He wem to him. co urt, too k ca re of h is c1ienc's business, I was born in Fayen eville in 195 1, and had no problem. In th is early period, he had at leas t at the Washington Coun ty Hospital, whil e my fa ther was attending law twO other cases that he successfull y school. Beca use of the light com plexhandl ed befo re the Arkansas Supreme ion of my parems, hospital staff Court. S" \'(1zbbas,ka Sc"ool District thought they wefe whitei and co nseNllmb" 7 v. j o/mson, 225 AIk 982 (1956), a teaeher fair dismissal case; qu endy, my mother was placed in a se mi-private or priva te room . Somehow the hospital discove red that and Brooks v. Burgess, 228 Ark. 150 (1957), a usury case. These early cases demonstrate that Wiley Bra ntOll was will ing to my parenrs were black, and my mmher was moved to the "colored ward" or a less desirable room. As the Story goes, upon my fa ther's take on controversial and diffi culr cases. He showed great comperetu rn to the hospital, and not fi nd ing my mother in the room in tence and d iligence in the legal marrers em ru S[cd ro his care. Lega l which he had previously left her, he becam e aJarmed th at something fees were a secondary considerati on. He often worked for litcie or no terrible had happened. The hospital informed my fa ther that his wife fee. And he appeared fea rless. had been moved to another room beca use she was "colored" and perhaps nO( even a residell[ of the coun ty. My father reportedly The Little Rock respo nd ed th at he and his wi fe were residenrs of Washington Co un ty Central High School C risis As ide from being an active member of the NAAC p, W iley by virtu e of him having built a house and hav ing paid taxes there. He threa tened that if my mother was not placed back into the ni cer Bramo n aJso becam e a "cooperating" attO rney wi m the AACPruu m, he would fil e a lawsuit and have "little black boys" swim ming LD EF. The NAAC P-LD EF had a wo rking arrangement with various in their S\vimming pool. My mother was returned to the nice r roo m. lawye rs across th e United States who were will ing to take on civil \'Viley A. Bran to n himself was repea tedly the target of both rac ism ri ghts cases. T he level of involvement of the NAAC P-LDEF with a and racial discrimin ation, although I am hesitant to call him a vic- case involving a cooperating attorn ey va ried and depended upon the tim . To th e extem under his control, he simply refused to be a vic- significance of a parti cular case. In 1955, and in res ponse to the Brown decision, the Little Rock rim; and he had the abili ry and [he will to fight back. W iley Branton graduated fro m law school in 1952. To his sur- School District (hereinafter "school di strict") had ann ounced a gradprise, he even passed the bar exam before he graduated . Apparentl y ual plan of integration. T he school district plan called for integraby mistake, he was perm in ed to joi n the Arkansas Bar Associatio n. tio n at the senior high school level first, followed by integration at This m istake was co nfirmed when he attempted to pay his du es the the junior high school level , and then the elementary school leve l. seco nd year. His check was return ed to him, uncashed. He did get Hi gh school integration was ro start in the 1957- 1958 school yea r. co nfirmation thac his race was the reason his membership dues were No target dates were set for further imegra tio n. Moreover, the plan rejected . did not call for full integrati on, but only allowed fo r a limi ted number of black students to anend some white schools. Early Legal Career When leaders of both the state and local chapters of the AACr Shor tly after openin g his Jaw practi ce 111 Pine Bluff. he was were unable to ger the schoo l d istrict to undertake a more aggressive appoi nted as a special depu ty prosecuror in Ashley Coun ty to assist integra tion plan. these leaders co ntemplated rh e filing of a lawsui t. in the prosecution of a white truck driver who had been accused of Wi ley Bramon was invited to mee t with Reve rend J. C . C renshaw, sex ual ly abusing a 16-year-old black femaJ e. It was unusual to pros- president of th e Li ttl e Rock Branch, NAA Pj Mrs. Daisy Bates, ecute whi te peo ple for such offenses commi tted against a black vic- presidenr of the State Co nference of Branches, NAAC Pi and other tim . T he man was co nvicted . See \~tt v. Stille, 222 Ark. 483 (1953). local NAAC P officials and black parents to discllss rhe iss ue of filin g In the mid 1950s, W iley Branton represented a 19-year-old black a lawsu_it. Wiley Bramon agreed to accept rhe representarion. defendant, convicted of the mu rder of his whi te employe r and se nIn Janu ary 1956, Wi ley Branton fil e(t a lawsui t in me U.S. tenced to death by electrocution. Mr. Branton fi led a timely mO(ion District Court for the Eas tern District of Arkansas on behaJf o f the
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parents of 33 black children. The case was styled Aaron v. Coop~r. The laws uit sought (0 have cl1e srate's segregation laws declared After the crisis at Central High School, unco nstitutional, and it also sought more immediate integration. Wiley Branton immediately coordi nated his efforts with both th e national NAACP and th e NAACP-LDEF. While mere were a numWiley Branton went on to have a very ber of atto rneys who panicipated in the represemarion of th e plaintiffs at various stages of the litigatio n, it would ap pear th at W iley distinguished legal career. He made Bramon, Thu rgood Marshall, Robert L. Can er, and U. Simpso n Tate handled most of the wo rkJ oad . significant contributions in civil rights, The rrial was scheduled for August 15, 1956, befo re U.S. District Judge John E. MilJer. The defendant school di stri ct essemially conceded that the state's segrega tion laws were unconstitutional. The voter registration, legal education, and school district argued that its proposed plan of inregration was a reasona ble pla n and should be accepted. O n Augus t 27, 1956, Judge service to the legal profession. Miller issued a decision in which he denied the plaintiffs' claim for relief and accepted the school district's integration plan as a reasonable one. See Aaron v. Cooper, 143 F. Supp. 855 (1956) . Followi ng the denial of cl1ei r claim for relief, W il ey Bramon conferred with Thurgood Marshall, Robert Carter, and omers. They the Arkansas National Guard to Central Hi gh for the ex press purdecided to appeal Judge Mi ller's decision to th e Eighth C ircuit Court pose of preveming th e Little Rock N ine from emerin g school. On of Appeals. Bocl1 Wiley Branton and Robert Ca rter presented the the nex t day, and in res ponse ro the actions of the govern or, th e appellants' argument before the Eighrh Ci rcuir. The Eighth C ircuit school board filed a petition in Aaron v. Coop~r to postpone impleaffi rm ed the District Court's ruling that the school distri ct was act- mentation of the integrati on plan. On th e very sam e day, U.S. ing in the utmost good fa ith and that th e plan was reasonable. The District Court Judge Ronald Davies denied the school district's Eighth C ircuit did reiterate the District Court's rulin g th at the request for a delay of the plan and ordered it to go forward. O n September 4, 1957, whi ch is another day in American hisroDistrict Co urt wou ld retain jurisdiction of the case "to ensu re a fuU ry that should "live in infamy" foreve r, the Little Rock Nine were opportunity for further showi ng in the event compliance at the eardenied emrance to CentraJ High School by the Arkansas National liest practical date ceases to be the objecti ve." T his retention of jurisdi cti on was shortl y to beco me very important as this case becam e the Guard on orders of Governo r Faubus. At the request of U.S. Distri ct Judge Davies, the attorn ey general vehicle through which all further litiga tion invo lving integration at Cenrral High was channeled. See Aaron v. Coop", 243 F.2d 36 1 of the United States entered into Aaron v. Coop~r, as amicus curiae, to enjoin the actions of Governor Fa ubus and cl1e Arkansas National (1957). Since the time for implementation of th e school di strict's plan was G uard. The plaintiffs also filed an amended petition seeking to add rapidly approaching, and not wanting to risk obtaini ng a bad deci - Governor Faubus an d cl1e com manders of the Arkansas National sion from the U.S. Supreme Court which might establish the Little Guard as defendants and ro enjoi n their actions preventing the inteRock plan as a model plan, the plaintiffs decided nOt (0 pursue any grat ion of Central High Schoo l. On September 7, 1957, Judge Davies "found that the school further appeals. Instead , they attempted ro work with the school dis~ trict to identify cl1e black students who would enter Ce ntral Hi gh at board 's plan had been obstructed by the Governor throu gh lise of National G uard troops," and he enjoined the Governo r and th e the start of the 1957- 1958 school yea r. Guard from "'preventing the attendance of Negro children at Central Initiall y. there were about 200 black students who we re eligible to High School. " Aaron v. Cooper, 156 F. Supp. 220 (1957). The nex t mend Central High. As fal l 1957 approached, the school diStr ict day, Governor Faubus withdrew the NationaJ G uard. By that tim e, had reduced/screened the number of eligible black students dow n to opposition to th e integration plan had become so explosive, due in abo ut 25 students. None of the original black plaintiffs in Aaron v. large measure to [he acrions of the governor, th at it became apparenr Cooper we re included among cl1e app roximately 25 black students that the safery of the Little Rock N ine was in serious jeopardy. Also sciencd by the school di stri cL Our ot this reduced group, on ly nine in jeo pardy was [he rule of law and the Supremacy Clause of the black studenrs, with th e co nse nr of their parenrs, were willing co U.S. Co nstitution. undergo wha t was rap idly becoming a significant perso nal challenge O n September 25, 1957, President Eisen hower dispatched federto imegrate Central. Those nine co urageous ch ild ren have now al troops to Little Rock Central High School to restore order and to become known to both history and rh e world as the "Little Rock enforce compl iance with the court app roved integration plan. The Ni ne." federal troops remained cl1rough th e end of th e school year and made As th e srart of school drew nea r, increasing "press ure" was being it possible for the Little Rock Nine to arre nd Central High Schoo l. placed on both dle school disrrict and rhe f.unil ies of th e black stuIn the spring of 1958, the school district filed another petition dents planning to attend Central nor to go forward with the plan. see king a couple of yea rs delay in the further implemenrarion of the The families of the Little Rock Nin e were threatened, harassed, and plan for inregration due to all the events that had transpired in the subj ected to economic reprisal s. 1957-1958 school yea r. On Jun e 20, 1957, U.S. District Judge The Gove rnor of Arka nsas, O rval Faubus, and the Arkansas State Lemley granted th e school di strict's request for a delay. T he plainLegislature were doing everything in thei r powe r to thwart th e tiffs appealed to the Eight C ircuit which reversed the District Court. Brown decisio n in general, an d to preve nt the integrat ion of Central The school distri ct then appealed to the Supreme Court. T his case High School in particular. See Cooper v. Aaron, 358 U.S. 1,8 (1958). proceeded with li ghtening speed from the Distri ct Court decision on On September 2, 1957, Governor Faubus dispatched members of 24 TIle Arkansas L(I\'Ycr
W'NW.arkbar.com
June 20, 1958, umil a ruling by the Supreme Court on Se ptember 12, 1958. Wiley Braman played a significant role in moving the case through the appellate process. Thurgood Marshall presented the oral argum em before the upreme Courr. The significance of Cooper v. Aaron is captured in rhe first paragraph of the full decision when the unanimous Supreme Co urt states "as this case reaches us it raises questions of the hi ghest imponance ro the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials ro obey federal co un mders res ting on this Coun's co nsidered interpretation of the United States Co nstitution. " The Su preme Co un wem on [0 rei terate that the U.S. Constitution was the suprem e law of the land; that the Supreme Coun's imerpretation of the U.S. Constitution was absolutely co ntroHin g and binding on state officials; and in general, that the orders of federal COUrtS should not yield [0 mob rule or sta te officials who disagreed with th e federal co urt's interpretation of the U.S. Co nstitutio n. Cooper v. Aaron, 358 U.S. I, 17- 18 (I958). Wiley Branton's in volvem ent in this litigation placed both him and his family in personal dange r. By September of 1957, Wiley
Branton and his wife Lucille had six children ranging in age from newbo rn to II -yea rs-old living at their hom e in Pine Bluff. O ur family received hate mail and threatening and harassing phone calls. While the child ren were shielded from the hate mail , it was nor unusual in our home for the children ro answer the telephone. We received vi le messages that our father would be killed, or that he better leave town, and numerous ocher threats. There was frequent use of the "N" word. On one occasion, the Ku Klux Klan or some oth er such group decided to place flaming crosses in our front yard and on our family cemetery plor. My f..1ther kept a phoro of one of the crosses on his des k for th e rest of his life. Our home became an armed encam pment. Our white neighbors organized a neighborhood parrol to help protect us. At one point, th e ch ildren were sem ro stay in Memphis with our grandparenrs. It was not until mu ch later in life that I had an appreciatio n for the danger that we had been in. O ur sense of security and comfo rt came from Wiley Branton, who appeared camious and practical, bur never fearful. I wou ld submit that if one studies the full record of the events surrounding the Central High School crisis, Wiley A. Branton would have to be co nsidered as significant a figure as any of the other parti cipancs who figured prominently in those events. Part of the reason that his role may nor be more widely known is that he never so ught rh e limeliglu. He was co ntent to just get th e job done and to move on to the next task. That is how he li ved his life. Sources for this article included personal and family recollections; review of an article written by W iley Branton titled " Little Rock Revisited: Desegregation To Resegregation," which appeared in T HE JOURNAL OF NEGRO EDUCATION, Volume 52, Number 3, Summer 1983; and review of the cases cited. After the crisis at Central High School, Wi ley Branton went on ro have a very distinguished legal career. He made significant contributions in civil rights, vote r registration, legal education, and se rvice to the legal profession. Wiley A. Branton died at his home in Washington, D.C., in 1988. For anyone who may be interested in more details on rhe life of Wiley Braman, Professor Judi th Kilpatrick of [he University of Arkansas School of Law at Fayetteville has written a boo k detailing the life of W iley Branton which should be published during 2007 . â&#x20AC;˘
Don't miss the multi-media presentation of the landmark case Cooper v. Aaron at the Arkansas Bar Association's Annual Meeting on Thursday. June 7th.
To register go to www.arkbar.com for program information. From Marbury v. Madison to Cooper v. Aaron Vol. 42 No. 2/Spring 2007 TIle Arkansas la>rycc
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justice by fonding programs that target the civil legal needs oflow-income Arkansans and by encouraging projects that improve the administration ofjustice. Grant priorititS are: For legal aid to the poor o¥" For student loans and scholarships o¥" Other programs for special projects that improve the administration ofjllStice
promote the general Welfare, and secure the Blessings of Liberty ordain and establish this Constitution for the United States of CONSTITlITION
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eSltab'lis,h Justice, insure domestic Tranquility, Provide for the Welfare, and secure the Blessings of Liberty to ourselves and this Constitution for the United States ofAmerica. ·PREAMBLE the People of the United States, in order to form a more perfect domestic Tranquility, Provide for the common defense, and secure the Blessings of Liberty to ourselves and our
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2006 Annual Report
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INTEREST ON LAWYERS' TRUST ACCOUNTS
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~~~~~~~~~~Unite'd States of America. ·PREAMBLE TO THE U.S, CONSTITUTION
2006-2007 BOARD OF DIRECTORS
2006 lFIT
LETTER FROM THE PRESIDE T
INCOME 10lTA Accounts Interest earned on operating account Interest earned on unemployment account Interest earned on money market account Interest earned on C.D.'s Total Revenue for Period
OFFICERS Larry E. Kircher PRESIDENT Bald Knob Nate Coulter VICE PRESIDENT Little Roc k Anna Via SECRETARY Dardanelle James D. Gingerich TREASURER Conway Frank B. Sewall 1M. PAST PRESIDENT Little Roc k DIRECTORS Richard C. Downing Little Roc k Jim Jansen Pocahontas Louis B. (Bucky) Jones. Jr. Fayetteville Tamla J . Lewis Rogers Freeman McKindra, Sr. Little Rock James A. Ross, Jr. Monticello Margaret M. Staub Helena
AND EXECUTIVE DIRECTOR Dear Colleagues, The Arkansas IOLTA program traces its existence to 1984 when it was created by a Per Curiam Order of the Arkansas Supreme Court. Under Rule 1.15 of Arkansas' Rules of Professional Conduct, lawyers certify their compliance with proper trust account practices. This rule, which provides the guidelines for safekeeping the property of others, requires all Arkansas lawyers who hold client trust funds that are short-term or nominal in natu.re to place these funds in pooled multi-client 10LTA accounts. The interest from 10LTA trust accounts is paid to the Foundation. The Foundation then awards grants from these funds to programs that provide civillegaJ representation to poor Arkansans and for projects that aid in the administration of justice. The Foundation distributed $416,341 to grantees during 2006. On November 30, 2006 the Arkansas Supreme Court issued a Per Curiam Order concerning changes to Rule 1.15. Effective February 1st of the following year, and subject to certain conditions, attorney [aLTA accounts may be checking accow1ts or money market accounts and may include a sweep product for high-balance accounts. The revised Rule may be found on the Court's website at h ttp://courts.state.ar.us. Hopefully attorneys and bankers will make use of this wider range of bank products.
$96,551 416,341 $512,892
GRANT DITSTRITBUTITO
HITSTORY
" $900,000
We hope you will take a few minutes to review this report-especially the case vignettes that exemplify the good work done by Arkansas lawyers. We appreciate the positive response and leadership of the legal community in Arkansas. With the efforts of each of you, reaJ people w ith real legal problems are able to access justice even though they are too poor to pay for civil legaJ services. The interest from your [aLTA account does make a difference daily in the lives of people who need legal help.
$550.000
. PAJ
• LEGAL ED
$800,000 $700,000 $650,000 $800,000
$500,000 $450,000 $400,000 $350,000 $300,000
Don Hollingsworth Executive Director Arkansas Bar Association
$250.000
Susie Pointer Executive Director
4,813 11,1 83 $729, 160
·Aud.t of the FoundatlOl1's books WIll be completed by the end of July. FiMI audrted figures WIll be available from the FoundatlOl1's office after July 15. 2007. If you woufd fike a COPY. please cal the Foundatoon offICe at (501) 682·9421. The unaudrted .nformatoon presented above IS based on the Treasurer's Report for January 1 to December 31,2006.
Interest rates rose gradually on attorney 10LTA accounts during 2006 producing increased revenue for the Foundation and its mission. Over 160 Arkansas banks offer [aLTA accounts and most do so without charging fees. This enables the Foundation to maximize the amount of funds that are available for grants for law-related commW1ity activities. The Foundation sin· cerely appreciates this support from the Arkansas banking community.
Susie Pointer Executive Director
8
EXPENSES
• LEGAL AID
Larry E. Kircher President, 2006-2007
$710,770 2,386
Administrative expenses Grant disbursements Total Expenses for Period
EX OFFICIO
STAFF
NCIT LIT lFORM TITON*
$200,000 $150,000 $100,000 $50,000 $0 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006
2006 ARKANSAS IOLTA GRANT RECIPIENTS LEGAL AID TO THE POOR, 2006 HliGHLliGHTS CENTER FOR ARKANSAS LEGAL SERVICES (Center) $233,182 Providing quality legal representation to low-income Arkansans in Arkansas, Ashley, Bradley, Calhoun, Chicot, Clark, Cleveland, Columbia, Conway, Crawford, Dallas, Desha, Drew, Faulkner, Franklin, Garland, Grant, Hempstead, Hot Spring, Howard, Jefferson, Johnson, LaFayette, Lincoln, Little River, Logan, Lonoke, M iller, Montgomery, Nevada, Ouachita, Perry, Pike, Polk, Pope, Prairie, Pulaski, Saline, Scott, Sebastian, Sevier, Union, Wh ite and Yell counties.
-The Center's staff and attorneys continued to offer outreach activities to low-income Arkansans in its service area. Outreach activities included talks to community fai rs, senior citizens, Headstart Centers, relative caregivers, health c li nics, domestic violence victims, veterans, and schools. Presentations were made in Arkansas, Clark, Crawford, Drew, Garland , Hot Springs, Jefferson, Johnson, Ouachita, Pope, Pulaski, Sebastian, Union and White counties. -In conjunction with the Arkansas Legal Services Partnership (ALSP) , the Center's attorneys worked on that group's statewide website's Onli ne Legal Library project. Over 166 Legal Fact Sheet s may be accessed on-line; there were over 808,648 page views in 2006. Special sections were developed for staff and pro bono attorneys, including The Pro Bono Case Alerts E-Newsletter, Medicare Part D, and new nonEnglish materials and resources. -The Center utilized an 8-minute in-house produced "on-hold advice" message for callers on the statewide hotline. The advice covers six legal topics. -Public Service Announcements (PSA's) on three legal topics were aired on over 50 radio st ations throughout the state. -The Center expanded its collaboration to include 56 public libraries that offer Virtual Law Offices, includ ing displays and client user manuals to assist patrons with t he self-help Onl ine Legal Library. -Special outreach efforts in 2006 included evacuees of Hurricane Katrina. More than 1,065 people visited the Hurricane Katrina Re lief and Resources Section where they received updated information on FEMA and housing benefits. -The Center worked with Legal Aid of Arkansas, the Arkansas Access to Justi ce Commission, and t he Arkansas Bar Association to host five Town Hall meetings in 2006 concerning access to civil legal justice in Arkansas. Four of the meetings were in each of the state's congressional districts, with co ngressional representatives and the publ ic discussing the civ il legal needs of low-income Arkansans. The fifth meeting was held at the joint annual meeting of the Arkansas Jud icial Cou ncil and the Arkansas Bar Association. Ms. Jean Turner Carter is Executive Director of the Center.
LEGAL AID of ARKANSAS (LAA)
$156,609
Providing quality legal representation to low-income Arkansans in Baxter, Benton, Boone, Carroll, Clay, Cleburne, Craighead, Crittenden, Cross, Fulton, Greene, Independence, Izard, Jackson, Lawrenc e, Lee, Madison, Marion, M ississippi, Monroe, Newton, Phillips, Poinsett, Randolph, St. Francis, Searcy, Sharp, Stone, Van Buren, Washington, and Woodruff counties.
-Beth Carnett is a Paralegal in the Jonesboro office and has worked with LAA fo r nearly 20 years, begin ni ng as a legal secretary. Her primary
responsibility is working on the Helpline and providing support for th e program's Domestic Violence Unit. Ms. Carnett closed 370 cases during the first half of the year, including 45 that involved domestic violence. -Demetria Edwards, who previously worked in LAA's Helena office in 2003-2004, rejoined t he office in December of 2005. She moved from the Jonesboro office to the West Memphis office in February 2006. She is certified by the Administrative Office of the Courts (AOC) to hand le dependency/neglect cases and serves as an attorney ad litem in Crittenden County. - William Everette served as Director of Delta Operations begi nning in January 2006, having previously worked for LAA as Manag ing Attorney in the Helena office. He has a long career in public service including the U.S. Navy and the Social Securit y Administration. -Teresa Franklin, a 2005 graduate of the U of A School of Law joined LAA's Jonesboro office in January of 2006. She had previously worked for the Benton County Attorney/Benton County Prosecutor's Office. She closed 158 cases during the first half of the year. -Barbara Griffin is the Managing Attorney for the Newport office since May 2002, which serves Independence, Jackson, Lawrence, Randolph, Sharp and Woodruff counties. She was previously in privat e pract ice and began working fo r LAA in June of 2001. Ms. Griffin focuses primarily on housing issues including federally subsidized housing authorities. -Margaret Reger has managed the Harrison office fo r 20 years and has over 30 years' experience in Legal Services work. She is certified by the AOC to handle dependency/ neglect cases in juvenile court. Ms. Reger also handles a variety of cases for low-income peop le in Baxter, Boone, Marion and Newton counties. -Lee Richardson is Executive Director of LAA, having worked as a Legal Services attorney since January 1991 . In addition to supervising the program's legal work, compliance, and Managing Attorneys, Mr. Richardson also maintains an active caseload. -Sherri Stewart is the Managing Attorney of the Mountain View office of LAA, serving in that capacity for over 15 years. Her office serves Cleburne, Fulton, Izard, Stone, Searcy and Van Buren cou nties. She is also certified by the AOC to handle dependency/neglect cases in juven ile court and serves as attorney ad litem in Stone Coun ty through a contract with the 16th Jud icial District. -Ebony-Azizi Sylla was employed as a staff attorney in the West Memphis office throug h February of 2006. She closed 28 cases prior to joining the JAG Corps. -Andrea Walker graduated from the Washburn University School of Law in May 2005 with high honors. She joined UIA's Jonesboro office in August 2005 as a Staff Attorney. She primarily represents victims of domestic violence. She also provides brief advice for other types of civil cases. -Jeanette Whatley is the Managing Attorney in the West Memphis office, which serves Crittenden and Cross counties and the Osceola District of Mississippi county. She also serves as Director of LAA's Housing Unit there. She provides housing counseling to first-t ime home buyers. Ms. Whatley is an experienced litigator with past work in private practice and for several Legal Services programs. -Legal Aid of Arkansas worked with the Center for Arkansas Legal Services, the Arkansas Access to Justice Commission, and the Arkansas Bar Association to host five Town Hall meetings in 2006 concerning access to c ivil legal justice in Arkansas. Four of t he meetings were in each of the state's congressional districts, with congressional representatives and t he public discussing t he civil legal needs of lowincorne Arkansans. The fifth meeting was held at the joint annual meeti ng of the Arkansas Judicial Counci l and the Arkansas Bar Association. Mr. Lee Richardson is Executive Director of Legal Aid of Arkansas.
Volunteer Attorneys Assist Clients HFor The Good"
AVLE is a jOint venture of the Arkansas Bar Association, the states' two Legal Services programs, and the Department of Human Services, Division of Aging and Adult Services. AVLE staff works closely with the Legal Services programs and the Area Agencies on Aging to insure older Arkansans get the legal representation they need.
-Fourteen new attorneys joined AVLE duri ng 2006. -Mr. Carl Hopkins of Ft. Smit h was selected as t he AVLE Volunteer Attorney of th e Year. He donated 58 hours to the AVLE program for the year. -Nineteen (19) attorneys who donated 20 hours or more to the program were considered for the Vo lunteer Att orney of t he Year Award received by Mr. Hopkins. -AVLE sponsored t he annual dessert after hours recept ion at the Arkansas Bar Association meeti ng in Hot Springs. The dessert and coffee recepti on honors all active AVLE attorneys. -Ten (10) private attorney volunteers assisted the AVLE Director, Ms. Cathy Edwards, in presenting information , answering common legal questions, and distributing publications to senior citizen groups. -The AVLE staff attended five (5) senior citizen information/health fa irs throughout the st ate distri butin g information and publications. The AVLE staff also exhibited at the annual Ag ing Conference in Hot Springs. Ms. Catherine Edwards is Director of AVLE.
EQUAL ACCESS TO JUSTICE PRO BONO PANEL (EAJP/LAA) $6,786 -Vo lunteers on the EAJP panel handled cases involving adoption, deceptive trade practices, protect ive orders, debt collection and contract issues, guardianships, divorces, Med icaid and nursing home issues, property matters, Social Security, and wills. -Presentations were made to community gro ups by EAJP staff and volunteers on Adult Guardianships, Domestic Violence and Family Law, End-of-Life Issues, Homebuying Basics, the Outreach Project, Powers of Attorneys and Wills, and the services provided by Legal Aid of Arkansas. -Accord ing to a statement by Mr. Lee Richardson, Executive Director of Legal Aid of Arkansas: " LAA has partn ered with Fayetteville's Peace at Home Shelter and the Washington County Bar Association to sponsor the Freedom Project, which is focused on providing services to shelter cli ents who have protection , divorce and custody issues . The project fu lfills the Equal Access to Justi ce Panel's goal of having a barsponsored panel of attorneys foc used on handli ng contest ed domestic violence cases and allows participatin g attorneys to represent clients referred to them t hrough a streamlined process. There are currently eight volunteer attorneys who will accept cases on a rotat in g basis, and four of those were recruited at a continuing legal education sem inar on domestic violence and fami ly law sponsored by the project partners and the Washington County Prosecutor's Office . The seminar was made possible by an anonymous donor to Peace at Home Shelter, and police, prosecutors and volunteer attorneys were able to attend free of charge. Th e project and the seminar made the front pages of the J une 24, 2006 editions of the Morn ing News of Northwest Arkansas and the Northwest Arkansas Times and received natio nal attention in the July 13, 2006 edition of the Legal Services Corporati on's newsletter." Ms. Susan Purtle served as Pro Bono Coordinator of the EAJP.
VOLUNTEERS' ORGANIZATION, CENTER FOR ARKANSAS LEGAL SERVICES (VOCALS)
$10,478
VOCALS won th e prestigious Harrison Tweed Award* in 1985. The program was started in 1982 by the Pulaski County Bar Association in an effort to help the Center for Arkansas Legal Services meet the legal needs of poor people in Pulaski County. Through a cooperative venture between eight central Arkansas bar associations, individual attorneys and the Center, over 840 volunteer lawyers now provide free legal assistance to poor people in the Center's 44-county service area.
"The Cent er continues to partner with the UALR Bowen School of Law to recru it law students to help with pro bono work. Seven (7) law students have volunteered to work on the Helplin e on a reg ular basis, answering calls and interviewing clients. They have also worked on client legal education materials in order to create "Fact Sheet s" on common legal problems. The cases are primarily family law cases, including custody. While assisting clients, the student s' skills are honed on arguing the merit s of the cases. -The Arkansas Pro Bono Partnership-consisting of VOCALS, AVLE, VAP, and the EAJP-staffed a recru itment booth d uring the annual meeting of the Arkansas Bar Association. They provided demonstrations to pro bono attorneys of the On line Legal Library. -The Pulaski County VOCALS campaign ended on May 31, 2006 with 103 new attorneys recrui ted and over $200 ,000 raised in contributions. -Mr. H. William Allen was named VOCALS Attorney of the Year. He was honored at the annual meeting of th e Pulaski County Bar Association. Mr. Allen has been both a pro bono attorney and a contri butor to VOCALS for t he past twenty years. The program's administrators were Ms. Angie Moore, Pro Bono Coordinator, Little Rock and Ms. Janet B. Dyer, Managing Attorney/ VAP Pro Bono Coordinator.
PROJECTS TO IMPROVE THE ADMINISTRATIO N OF JUSTICE
ARKANSAS BAR ASSOCIATION, YOUTH EDUCATION, MOCK TRIAL COMPETITION
$500
Mock Tria l competiti on provides high school students with a greater understanding of and appreciation for the law. Students must b e in grades 9- 12 and each team of six must have a teacher sponsor and an attorney coach. Twenty-nine hig h schools com pet ed in the stat ewide competit ion with Parkview High School of Little Rock win ni ng the 2006 state championship. A host of judges, attorneys, and volunteers participated as pres id ing judges, scoring judges, attorney coordinators and coaches, and bailiffs. Attorney Michelle H. Cauley chaired the 2006 Mock Trial Committee and Mr. Rando Hicks of the Arkansas Bar Association coordinated the Competition.
Attorneys for the Legal Services programs in Arilansas handled the following cases in 2006. While the cases are l'eal, the "'names ate fictitious to protect client identity.
~
"*Mr. Keiser, a 25-year-old Greene County man, contacted Legal Aid ofArleansas (LAA) when the mother of his son, *jacob, moved to Florida with the child despite a court order prohibiting her from leal)ing the county. The child's mothe~' indicated that she planned to move to Puerto Rico with her new husband, who was abusive to Jacob, and the client flared he would never see his son again. The volunteer attorney for the Equal Access to Iustice Pro Bono Panel (EAIP) succeeded in getting Mr. Keiser full custody of his son and in stopping the child support payments he had been required to make while jacob was living with · " hzm.
""'Mr. Brannan, a 64-year-old Crittenden County man, was denied Social Secul'ity retirement benefits because he did not have a birth certificate. He was born at horne with a midwife, and his birth was not timely registered. The client was unable to obtain the necessarJIprimary documents to get a birth certificate without a court order: An attorney for Legal Aid ofArleansas (LM) filed a Petition for Issuance ofa Delayed Birth Record. After the available evidence was examined, the judge issued an order verifying Mr. Brannan's date of birth and the client is now receiving tile benefits to which he is entitLed })
""'Ms. McKenzie, a Hurricane Katrina evacuee living in Arleadeiphia, was notified by FEMA that her rental assistance payments would end in May. The client sought assistance to appeal FEMA's decision. Eleven jurisdictions in the United States had made requests to FEMA to extend the rental assistance, and it was not clear whether Ari?ansas had made such a request. A paralegal for the Cente1"for Arkansas Legal Services (CALS) contacted state officials and FEMA to determine the appeal procedures for Ms. McKenzie. The Center mailed her a Declaration of Need for Rental Assistance, and instructed her to get a letter from her former landlord explaining that the house she was renting in Texas was no longer available to her. The paralegal provided information and forms on the FEMA appeal procedures to other evacuees in the Arkadelphia area. "
~
"*Mrs. Lind, a 51-year-old mother of three, needed assistance getting a divorce from her abusive husband. When the client contacted the Center for Arkansas Legal Services (CALS), it was the first time she had ever experienced physical violence from her husband, though she was emotionally and verbally battered throughout their marriage. The husband left her with the children in the marital home, while they were going through foreclosure. Mrs. Lind was r'eflrred to a private attorney for Volunteers Organization, Center for Arkansas LegaL Services (VOCALS) and the divorce complaint was filed, which the husband initially contested. At the final hearing, it was believed that the husband had flown out of the country, and the j udge issued a default judgment ofabsoLute divorce and fuLL custody and ordered the father to pay child support. Once the foreclosure began, the attorney was able to remove our client's name from the mortgage. The attorney also was able to secure funds for Mrs. Lind and the children through the husband's pension plans and the client was awarded an initial $9,000, with more funds to be distributed."
"*Mrs. Lynch, a 63-year-old disabled Randolph County woman, purchased a car for $2,400 from a used car dealer. The client made a $600 down payment at the time ofpurchase, which was never recorded. The seller refused to release the lien and sign the title to the car over' to her after she paid i.t off because he said she still owed the $600 plus late fees. An attorney for Legal Aid ofArkansas was able to document that Mrs. Lynch had made all the required payments and negotiated with the seller for the release of the lien and title to the car. "
~ "*)l.1s. May, a 49-year-old Crittenden County woman, had been caring for her mentally handicapped sister, *jane, for more than three years and was unable to obtain necessary medical care for her sister because she did not have guardianship. The sista; who suffered from a lacle of oxygen to the brain prior to birth, has the mind ofa 4-year-old and marks an 'X" for her signature because she is unable to sign her name. As a result, the only physician wiLling to provide her with medical care was the family doctor she had seen for much ofher life. The EAjP volunteer attorney helped Ms. May obtain guardianship ofjane, and the sister is now able to get the medical care she needs from a specialist. "
~ "One of our clients, *Mrs. Bowman, initially came to the Center for assistance with a fraudulent bank charge. Mrs. Bowman had met and married a man in Texas, and he hold her that he owned several "franchise teams." When they moved back to Arleansas, he secured a mortgage to an extremely expensive home in both of their names, with a check that was no good. The client at the time was unaware of what her husband had done and was enduring a great deal ofphysical and emotional abuse. Mrs. Bowman was referred to one of our VOCALS attomeys, who was able to get the client's marriage annulled. The pro bono attorney was also able to get Mrs. Bowman cleared of the charges from the banle fraud. "
INTERIST ON LAWYERS' TRUST ACCOUNTS
$6,786
Legal Services Help People Who Need Help
The following legal matte1'S were handled for free by attorneys in private practice who volunteered their legal services to pro bono (meaning "for the good") programs in their communities. While the cases are real, the *names are fictitious to protect client identity.
IOLTA
ARKANSAS VOLUNTEER LAWYERS FOR THE ELDERLY (AVLE)
"*Mrs. Gillett carne to the Center for help in finding assistance with her prescriptions. The client is 80-years-old and paying offa really high credjt card bill that carries mostly herpresaiption drug costs. Mrs. Gillett receives retirement from Safeway and has a pharmacy card that pays 10% ofher drug costs and she pays 30%. The client is on several medications and cannot pay it other than placing it on her credit card. Mrs. Gillett had missed the deadline for registering with Medicare Part D (the prescription dmg benefit plan). A staffattorney not only explained to Mrs. Gillett that there is a second enrollment period in November but also provided her UJith information from the statewide website which contained a phone number to help elderly people with their qu.estions. The staffattorney worlud with repl'esentatives at other agencies, including the local Area Agency on Aging and the Charitable Christian Clinic, the Latter of which has a specific discounted presaiption drug plan. "
ARKANSAS IOLTA FOUNDATION, INC_ I:\TEREST 0:\ LA\v'YERS' TRLST ACCOUt\TS
Justice Building, Ste. 0100 • 625 Marshall St. • Little Rock, AR 72201 • Office: (501) 682-9421 • Fax: (501) 682-9415 • E-mail: pointersusie@yahoo.com
IOLTA INTEREST ON LAWYERS' 1l\UST ACCOUNTS
2006 IOlLTA SAl. K HOl TOR ROLL The Arkansas IOLTA Foundation gives special recognition and special thanks to the following financia l institutions for paying an average interest rate o( 1.5% or higher AND waiving service charges on aNorney IOLTA accounts: _ _ _ _ _ _ _ _ _ _ _ _ _ __
Arbnsas Superior Federal Credit lJnion, Warren Bank of Salem Delta Trus~ Hamburg Delta Trust & Bank, little Rock
Diamond State Bank, Hope Diamond State Bank, Nashville Farmers & Merchants, StuHgart fint National Bank, AshdoWn First National Bank, DeQueen
First National Bank, Dierks Fint National Bank, Waldron Fint National Bank of lawrence Coonty, Walnut Ridge fint State Bank, Warren
Fint State Bank of DeQueen Focus Bank, Paragoold Peoples Bank, Magnolia USllank, Cincinnati, OH
The Foundation appreciates and gives special thanks to the fo llowing financial institutions (or paying interest of 10/0" 1.5% AND waiving ser~ vice charges on aNorney IOLTA accounts: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Arkansas Diamond Bank, Glenwood Bank of ~usta Bank of DeTigh~ Nevada Coonty Bank of lake Village Bank of Rogers Eudora Bank Farmers Bank, Greenwood fint Conwnunity Bank, lonesboro
Fint National Bank, CrosseH fint National Bank, Hope fint National Bank, Hot Springs fint National Bank, McGehee fint National Bank, StuHgart first National Bank, Wynne fint National Bank of Izard County, Calico Rock
Fint Service Bank, Clinton Fint State Bank, CrosseH Fint State Bank, lonoke Forrest City Bank Heber Springs State Bank Helena National Bank legacy National Bank, Springdale McGehee Bank
Merchants & Farmen, Dumas Merchants & Planten, Clarendon Signature Bank of Arkansas, Fa)'eHeville Smackover State Bank SoothBank, Manila
A special thank you to the following financial institutions for paying interest AND waiving service charges on attorney IOLTA accounts: -
A & B Financial, Bentonville Allied Bank, Mansfield American State Bank, Paragoold Arkansas Coonty Bank, DeWiH Arvest Bank, FayeHevilie BancorpSooth, Camden BancorpSooth, EI Dorado BancorpSooth, Ft. Smith BancorpSooth, Hope BancorpSooth, liHIe Rock BancorpSooth, Magnolia BancorpSooth, Melbourne BancorpSooth, Osceola BancorpSooth, Stuttgart BancorpSooth Bank, lonesboro Bank of Arkansas, Tuisa, OK Bank of England Bank of Eureka Springs Bank of FayeHevJ11e Bank of liHIe Rock Bank of Moontain View Bank of PrescoH Bank of Rison Bank of Star City Bank of the Ozarks Bank ofTrumann Centennial Bank, liHIe Rock Century Bank, Texarkana Chambers Bank of North Arkansas, FayeHevilie Chart Bank, Perryville Citizens Bank, Batesville Citizens Bank & Trust, Van Buren
Citizens State Bank, Bald Knob Commercial Bank & Trust, Monticello Commercial National Bank, Texarkana Community Bank of Cabot Community fint Bank, Harrison Elk Hom Bank & Trust, Arkadelphia Farmen Bank, Hamburg Farmers Bank & Trust, Blytheville Farmers Bank & Trust, Magnolia Fidelity National Bank, West
Fi~ Bank & Trust,
Jacksonville fint Bank of Sooth Arkansas, Camden
first Bank of the Delta, Helena first Conwnunity Bank, Batesville fint Community Bank, Pocahontas Fint Community Bank of Crawford Coonty, Van Buren Fint Community Bank of Eastern Arbnsas, Marion Fint Federal Bank of Arkansas, Harrison fint financial Bank, EI Dorado fint National Bank, Berryville fint National Bank, Blytheville first National Bank, Ft. Smith Fint National Bank, Marianna First National Bank, Mena Fint National Bank, Mt. tda
Fint National Bank, Min. Horne Fint National Bank, Paragoold First National Bank of Eastern Arkansas, Forrest City First National Bank of Green Forrest, Kingston First National Bank of lewisville Fint National Banking Company, Ash Flat First Security Bank, Conway Fint Security Bank, Searcy First Service Bank, Conway Fint Southern Bank, Batesville First State Bank, Conway First Western Bank, Boonville first Western Bank, Rogers Heritage Bank, )onesbOfo libertY Bank of Arkansas, lonesboro liberty Bank of Arkansas, Russellville Malvern National Bank Merchants & Pianten, Newport M~::,litan National Banli, liHle
River Town Bank, Dardanelle Simmons Bank, Hot Springs Simmons Fint Bank, Oumas Simmons Fint Bank, lake Village Simmons Fint Bank, lincoln Simmons Fint Bank, lonesboro Simmons Fint Bank, Searcy Simmons First Bank of EI Dorado Simmons Fint Bank of Northwest Arkansas, Sprinlllale Simmons Fint Bank of Russellville Simmons First National Bank, Pine Bluff Southern Bank of Commerce, Paragoold Southern State Bank, Malvern Sunvnit Bank, Malvern The Capital Bank, little Rock Twin CIty Bank, North liHIe Rock Union Bank & Trust, Monticello Union Bank of Benton Union Bank of Mena United Bank, Springdale Warren Bank & Trust
National Bank of Arkansas, North liHle Rock OneBank, little Rock Partcway Bank, Monticello Petit lean State Bank PiggoH State Bank Pine Bluff National Bank Pulaski Bank & Trust, liHle Rock Regions Bank, Birmingham, Al
Thank you to these other participating IOLTA banks (or paying interest on attorney IOLTA accounts in 2006: _ _ _ _ _ _ _ __
Bank of America, St. loois, MO Bank of McCrory Capital One, New Orleans, LA
Chambers Bank, Danville Coming Savings & loan Cross County Bank, Wynne
Fint National Bank of Paris Fint Security Bank of Min. Horne SunTrust, Atlanta, GA
This /isling is based on interest rates on aclive attorney IOLTA accounts as reported to the Foundation by individual banks in 2006.
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Vol. 42 No.21Spring 2007 TI,e Arkansas lawyer
27
New Rules in Dependency-Neglect Appeals By Anthony L. McMullen '
For a number of yea rs,
COUfts
have been
allt: lIlpl ilt~
Lu prOleCl lhe: clue-process rights of parems while protecting the rights of children l'O live in a permanenc, safe environmeIH. A criticism of the process in dependency- neglect cases is the length of time berween rhe term ination of a parent's rights and the di sposition of rh e subsequent appeal, which averaged to be 443 days. ' With the goal of limidng rhe record in dependency-neglect cases, cunailing extensions, and expediting appellate process, the Arkansas Supreme Coun adopted Rules 6-9 and 6-10 of the Arkansas Supreme Co urt and C ourt of Appeals. which went into effect on July 1.2006.3 This article pro-
me
vides a quick review of the new rules. Rule 6-9(a} addresses the orders from which an appeal may be taken in dependency-neglect proceedings. A5 before the adoption of the new ruJe, the adjudication and termination orders are appealable, as are dispositi o n, review, and perman ency-planning orders that co mply with the dictates of Ark. R. Civ. P. 54(b}.4 However, the denial of the right ro appo inted counsel is now expressly provided an appealable order under the new rules.' Rule 6-9(a} also obligates circuir co urts ro enter orders in dependency-neglect proceedings no later than thirty days after dl e heari ng.6 Beca use the rule places such a burden, those courtS that o rder th e prevailin g atrorn ey ro prepare the o rders sho uld ensure that those orders are prepared and app roved as to form in a timely manner. Rules 6-9(b} and (c) simplifY the record in dependency-neglect cases. Before the new rules, an appeal from a termination order mi ght require a multi-volume record that cou ld exceed one thousand pages. This comes at a substantial cost to whoever is paying for the transcript. The new rules purport ro reduce this cost. First, rather than filing a normal Notice of Appeal and Designation of Record, the Supreme Cou rt has created forms that must be completed, fil ed. and served o n the court reporter and all partie.s J The Notice of Appeal and Designation of Record must be signed by both counsel and appel lant, if the appellanr is an adult. 8 By requiring the parent ro sign the notice of appeal, this provision will hopefully encourage appell ants to maintain contact with
28 TIle Arkansas la\\ycr
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counsel throughour the appellate process. Second, me appel late reco rd in dependen cy-neglect cases is now limited ro the tran script of the hearing from which the order on appeal arose plus those petitions, pleadings, o rders, and exhibits relevanr to said hearing. 9 Whi le this substa ntiall y reduces the appell ate record (s urely to be a relief to co urt repo rters and record abstracro rs), attorneys in dependency-neglect cases must be more mindful of appellate pracdce at the trial level. The circuit court is still required under the Arkansas Code ro rely upo n the reco rd in the entire dependency-neglect case in making a decision to terminate parental rights, IO but appel late courtS will be unable tu review lhe history of a case unless that hi story is developed at the termination hearing or the hearing from which the appealed ruling results. Therefore. while the new rules may reduce the cost of preparing a record in dependency- neglect cases, ir puts a burden on trial attorneys to ensure thar the record is fu lly developed at each stage of th e proceed IIl gs. Rule 6-9 has its biggest impact on the speed of the appellare process. The time for filing [he No<ice of Appeal has been reduced [Q fourteen days, down from thirty days under the Rules of Appellate Procedure. I I The record on appeal must be completed and ccnifi cu Williill :.ixly days of filing [he noti ce of appeal, and th e record mUSt be filed with the clerk of the Supreme Court within seventy days of filing the notice of appeal. 12 Once the record is lodged, the appellant must file his or her brief with.in rwenty days. 13 The appellee(s} will have twenty days to respo nd , and the appellant will have ten days to reply to the response. 14 These time limits are less than th e forty days to file the brief, thirty days to respond , and fifteen days to reply under the o ld rules." The argu ment section is now limited to twemy pages in dependency-neglect appea1s. 16 Extensions are now limited to one per parry (a lit.! uut: for rhe completion of the record) , and such extensio ns are limited to seven days.1 7 Once a dependency-neglect case is ready for su bmission, it is immedi ately sub mitted to th e rev iewi ng co urt. 18 Finally, petitions for rehearing and for review are to be filed within fi ve days of the
appell ate mandate, reduced from eighteen days under the original rules. Rule 6- 10 delineates counsel's responsibilities in dependency-neglect appeals. Under the new rule, trial co unsel is requi red to represent his or her client until permitted to withdraw by the appropriate coun.20 Once th e mandate is iss ued by the reviewing court, an attorney has thirty days to submit his o r her motion for fees. 21 While nor parr of the new rules. anorneys who represent clients in termination cases shou ld become familiar with the procedure for no-merit appeals under Ark. Sup. Ct. R. 4-3(j), which was inco rporated into termination appea ls by the Suprem e Cou rt in Linker-Flores v. Arknmas Department of Human Servias 22 in 2004. T he new rules have been in effect for on ly a brief period of time; therefore, it is toO early to tell if they will indeed reduce me costs and length of dependency-neglect appeals. Of course, nothi ng is a substitute for reading the actual rules; those invo lved in depend ency- neglect cases--even if rhey arc not invo lved in ap pellate practice-arc encouraged to become fam il iar with the new rules and, if necessary. incorporate them into their practice to ensure that they are competently representing their clients. Endnotes: I. Anthony L. McM ull en, J.D. (U ni versity of Arkansas, 2004) is a law clerk for Judge Wendell Griffen of [he Arkansas Court of Appeals. Any opinions expressed herein are solely those of the author and do not reAect the o pini o ns of Judge Griffen o r any employee of the Arkansas Cou rt of Appeals.
2. Su In rt:: Proposed Rilles for Appeals III Depmdmcy-Negkcl eases, 365 Ark. Appx. _, _ (2006) (hereinafter "Pro posed Rules"). In Menzies v. Ark. Dep't of Hllm. Servs., CA 03- 1237 (Dec. 14, 2005), 982 days passed from the entry of the terminatio n ord er and the appellate decision. Id 3. See Proposed Rilles, 365 Ark. Appx. at _ ; In re: Adoption of Rules 6-9 and 6-10 of the Rules of tlu Supreme Court and Court of Appeals, _ Ark. Appx. _ (May 18, 2006).
Endnotes continued on page 45
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Noteworthy Arkansas Jurists: From the Trial Bench to the Governor's Office By Logan Scott Stafford
An arcicle in the last issue of The Arkansas Lawyer discussed three trial judges-Elisha Baxter, James H . Berry, and John Sebastian Little-who were elected gove rnor. Berween 1913 and 1952 four of rhe twelve persons who served as the state's chief executive came from the trial bench . Geo rge Washingcoll H ays grew up in Ouachita County and attended Washington and Lee Un iversity. He rerurnc.:cllu Camden and read law with a local firm before opening his own law practice. In 1906 Hays was appo inted judge of the 13rh Judi cial District (Calhoun, Columbia, Ouachi<a, and Union Co unties), and he was reelected [0 a full six yea r [Cflll in 1910. His electio n as governor was nor witho ut cOlHrove rsy. W hen United States Senator Jeff Davis died in January 1913, rhe General Assembly chose Joseph lariat Robinson , the state's newly e1ecred gove rn or, to fill the vacant senate seat. The legislature then scheduled a special election to rep lace Robinson as govern o r. Hays and former United Stares Co ngress man Srephen Brundidge sought the Democratic gubt:rnato rial nominatio n. The Democratic Central Committee declared Hays the winner by 8 16 votes, based largely on late returns from Phillips County. Brundidge filed suit in Pulaski Counry C hancery Co un to enjoin rhe sec retary of state fro m certi fYing Hays as the Democratic no min ee, and the chancellor granted tile injunction. O n appeal the Supreme Cou n ru led that the chancery coun lacked jurisdiction to try an election comes£. Su Walls v. Bnmdidge, 109 Ark. 250, 160S.W.230( 191 3). Hays wenr on to defeat his Republi can opponem in the July 23, 1913, special election. After se rving the remainder of RuLim.uu's (erm and one fuJI term as governor, H ays returned to rh e prac· tice of law in Little Rock and Camden. The chancello r who gramed the injunction in Walls v. Bnmdidg~ was John E. Martineau. who in 1926 became the next trial co urt judge to be elected governor. Martineau grew up in Lonoke Co unry and rece ived his legal educat ion at the Universiry 30 ll1C Ark,msas l::J\\ycr
WNW.arkbar.com
of Arkansas Schoo l of Law. He was ad mit· ted to the bar in 1899 and represe nted Pulask i Counry in rhe 1903 and 1905 Arkansas General Assemblies. In 1907, Martineau replaced Jesse C. Hart as chancello r of the First C hance ry District (Lo noke, Prairie, Pulaski, and W hite Co umies) after Hart was appointed to a vacam seat on the Supreme Coun. Martineau first sought the Democratic gubcrnarorial nomination in 1924, when he ran third in a field of six. Two years later he defeated the incumbent governor. Thomas J. Terral. in an extremely As governor close primary electio n. M arti neau is chi efly remembered as th e archi tect of an ambitious. multimill io n dollar hi ghway co nstru ction program. Du ring Martineau's second year in office President Calvin Coolidge appo inted him to the Uni ted States district court bench, and Martineau served as a federal judge until hi s d eath in 1937. In 1932 another tria l cou rt judge was elected gove rnor. Junius M. Futrell grew up in Greene: Co un ey and was ad mitted co the bar in 191 3. H e held a number of po Ii rica I offices including state rep resentative from Gree ne Co un ty. circuit clerk of G reene Counry, and state senato r from the First Distri ct. He was appoimed judge of the 2 nd Judicial C ircu it (C lay, C ross. G ree ne, C rai ghea d. Miss issi ppi . Po insett, and C rittenden Coumi es) in 1921 and elected chancell or of the 12th Chancery District (C lay, G reene, Craighead, Mississippi, Poinsen, and Crinenden Counties) in 1924 and 1930. H e was elected governor in 1932. at the heigh t of the Depression. and reelected in 1934. His legacy to the state included cwo constimtional amendmentS d es igned to The 19th restrict public spend in g. Amendm ent requires that tax increases be approved either by the voters in a ge neral election or by three-fourths of the General Assembly. The 20th Amendment requ ires vote r approval before the state's credi t can be pledged to pay bonds. Afrer leavin g the governor's office, Futrell became the attorney
for a federally sponsored agriculrural project at Dyess in Miss iss ippi o unty. T he final trial coun judge to be elected governor was Francis A. Cherry. C herry moved to Fayeneville in 1932 to arrend the Uni versiry of Arkansas School of Law. After rece ivi ng his law degree in 1936, he initially practiced in Li ttl e Rock but soo n moved to Jonesboro. In 1942 he was elected judge of the 12th C hancery Districr (Clay. Greene. Craighead, Mississippi, Poinsett, and Crittenden Counties). In 1952 Cherry was one of several candidates who challenged incumbent Governor Sid McMath's attempt to win a third term. To overco me his lack of name recogniti on. C herry appea red o n radio stati o ns all over the state where he fielded questions cal led in by listeners. The tactic captured the attention of voters, and C herry managed to force the incumbent into a runoff. wh ich Che rry won hand ily. After a sin gle term. C herry was defeated by Orval Faubus. C herry thereafter hel d a minor federa l pos t until his d eath in 1963.
Bibliograph y: THE GOVERNORS OF ARKANSAS EsSAYS IN POLITICAL BI OGRAPHY. Second Edition. Edited by limothy P. Donovan , W ill iam B. Gatewood Jr.• and Jea nni e M. W haley. U of A Press. Fayetteville, 1995.
Thh nrtir/e is provided by the Arkansas Supreme Court Historical Society, Illc. For more infonnatioll 011 tbe Society COII tact Rod Miller, Arkallsas Supreme Court Historical Society, Justice Buildillg, Suite 1500, 625 Marsball Street, Littk Rock, AR 72201; Email: rod.mt.ller@llrkallsas.gov; Pbolle: 501-682-6879.
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n,e Arkdnsas lawyer
33
ractice Wild Instruments, Surveyors Gone Bad, Confused Courthouses and Strip Clubs: Four Reasons to Use Caution When Drafting Deeds
By J. Cliff McKinney Unfortunately, tOO many lawyers cede th e res ponsibility of drafting deeds to non lawyers, such as secretaries, paralegals or tide agents, who use form deeds. Th is has cwo pore nrially fata l fl aws: 1. the deeds are often wrong; an d 2. this leads to lawye r co mplace ncy. Lawyers shou ld nor rel y on can ned deeds prepared by non -lawyers. In stead , lawyers should draft deeds with extreme caution. Following are four particularly important points to consider, all based on mistakes I've seen in non-lawyer prepa red deeds: Names Docs the deed li st the co rrect panics? This so unds elementary, yet is a frequent mi stake. Cons ider these twO questions: 1. Docs the seller's name match the last record owner's name ? Consider this scenario: "C huck's Mearhouse, Inc. " takes title to a restaurant in 1995. In 1998, Chuck beco mes a vegetarian and changes rh e business name ro "Chuck's Veggiehouse, In c." C huck records the change with the Secretary of State but nor in the real estate records. In 2007. C huck sells his busin ess. and the deed reads. "Chuck's Veggiehouse, Inc. to Sue's Fishhouse, In c." H owever, the record owner of the property is Stm Chuck's M cathouse, Inc. This deed is a wil d instrument failing to adequately convey tirie and giving Sue no protec tion from third parries. 2. If the seUer is an individual (i.e., nor a co rporate entity), will the seller's spouse sign the deed? Arkansas has dower and curtesy, mea ning the spouse mUSt sign eve n iF not lisred on the tide. If the sell er is unmarried, eliminate futu re questions by saying so in rhe d eed.
Legal D escription Is the legal description co rrect? T here are two types of legal d escription s: 1) metes and bounds, and 2) platted. A metes and bou nds
34 TIle Arkansas la\\ycr
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description defines properry boundaries through measurements and referen ces to fixed points. A platted description references a recorded survey that fully describes rhe properry boun daries {ex .â&#x20AC;˘ Lot 1. Block 2. Kingwood Su bdi visio n}. Both types of d escriprions are vulne rab le to error. For planed desc riptions, be absolucely certain to refe rence the co rrect lot and block. For metes and bounds, be sure the description actually "closes" (forms a co mp lete box without gaps). Special computer sofcware can check metes and bounds desc ri pt io ns. However. it doesn't hurt to make the surveyor write a letter swea ring on pain of d ea th that the legal is correct. Also, many surveyors like to include th e following phrase at the end of the legal d escription: "Subject to all matters of record or fact." When incl uded in the deed, this language creates ambiguity abour the warramies or [ide. Delete rhis lan guage from the deed.
Place of Recording Before recording a deed , always ask. "Is this deed being record ed in the right place?" Again , so unds like a stupid question. but m istakes happe n, especial ly for the ten counties with TWO county sca ts. Th is dual county sea t system creates an unfo rtunate guessing game that must be carefully navigated to be certain rhe deed is filed in the right courthouse. The tell counties are: Arkan sas. Carroll. Clay. Cra ighead. Franklin , Logan, Mississi ppi, Pra irie, Seh~l.~tian and Yell. Restrictive Covenants Back in co llege, I was with a group of friends at a restaurant when one friend beca me too affectionate with his girlfriend. Disgusted by the behavior, another friend exclaimed. "This is a family estab lishment, not a place to establish a family!" I think of this every
rime I prepare a deed because it reminds me consider how the land will be used after the transaction is complete. If a new business is planned, will it be family-friend ly, or,
[Q
well , nO[ so fami ly-fr iendly? AIe there oth er thi ngs rhe parties sho ul d cons ider about the pro perry's future lise? If the seller retains adjoining properry. he has a legitimate interest in the furure use of the land (and vice-ve rsa for rhe buyer). For instance, if my diem sells land CO a restauram developer. that's all well and good until rhe restaura m fails and becomes a strip club. Less dramati ca lly, if my d iem owns an eleccronics srore and sells excess land to a restau rant developer, what happens if the restaurant closes and TechnoShack moves in ? Don't forget, land can be resuicred ro comrol fuwre uses. Be sure [0 ask whether the deed should have use restrictions. If so, what types of restrictions would help your cl iem. and what restri ctions would the other side accept? Truch be rold, this issue shou ld be co nsidered long before you are ready [0 prepare me deed. Regardless, it is importam [0 consid er whether [0 include restrictive cove nanrs. Ce rta in ly, there are many more things [0 consider when preparing a deed than th e issues noted in this article. The main point is that deeds are extremely important and not ro be treated flippamly. When a lawyer relies on a non -lawyer [0 draft the deed (a nd doesn't at least ca refu lly review me result) . the lawyer abdicates his responsibility and exposes hi s client (and himself) [0 co nsiderable risk.
J. CliffM cKilllley practices real estate la w witll Quattlebaum, Grooms, Tull e!r Burrow PLLC ;', Little Rock. H e is tile present Cllair",all of tile A ssociation 's Real Estate Sectioll.
The Arkansas Bar Association is proud to recogni/c (\\10 ncw rec ipients of the LAWYER CoMM UNITY L H ;/\cY AWARD. Two awards arc pre~ sented bi-annually by thc Association to attorneys and judges who haVe." perfo rmed vo lunteer public <;t.:rv ir.:cs out of a sense of duty. professionalism. Jnd a genuine desire to give back to rhe communiry. Re<.:ipienb were seiecrcd by rhe Publi\.: Information Commi ttee after considering rhe nominations rcn~ived by the deadline.
D OUG N ORWOOD
RANDY PHllliOURS
A\ a staum:h protector of <':Ivil rights. Doug Norwood of Norwood
Randy Philhoms lows his cOllllnuniry. and it "hows. H is dedication
& Norwood I~A. in Rogers ;lnd Springdale has committed much
and commlrmem to his commun ity or Paragould a.'i wel l as to Ihe
of his legal career to defending rhe righes of clients in ohcn diffi-
legal profession covers a broad spectrum of volunteer public servicl'S.
culr. unpopula r cases. l ie was nominJ(ed for rhis award "ror rhe
Philhours, of Branch. Thomp)ion. Ph i lhou ~ and Warmath, ha."i been
work he has done over rhe years in prorecting the citizens of
auivciy involved in numerous econom ic developmem efforts, lilera-
Benton County," according to his nominaror. Ht.." has lundlcd many of (he cases pm bono or withom gre-dt expeu.uioll of receiv路
cy projecrs, and pro bono It'gal st:rvin's ro local civic groups in hi.!, community. Philhours servcs on the Board of Din:c(or.. for the
ing much of a fcc. Norwood currently serves as presidcnt of rhe
Economic Development Corporation of Greene C..oun~路, wherc he;:
Arkansa"i Associarion of Criminal Defense Lawycrs (AACDL) and
h.ts twice served as chair. He;: ha... \ef\'cd a.'i chair of the Paragould
life member of the National A~ciarion of Criminal Dt:fcnse
Rt"gion.u Chamber of Commt:fce, the Community Dt"\lclopmenr
is
;t
me Champion of JU<tKC Award
Program, the Group Exchangc Program and the \X'orship
from ,he AACDL in 200.,. Norwood has helped advance [he prac-
Commirree of the Firsr Un ircd Method ist Church. Philhours has
[,"ryers (NACDL). f ie reCClved
tice of criminal law rh rough several sigll ifk~lJ1[ cases in the
also served on the Communiry DC\lclopmem Three Commirrce and
Arkallsas Supreme COLIn involving rights to jury trials. ~pccd)' tri-
on rhe Board of Directors of -BeGlllSe School Matters," He was
als and closing arguments. He is married to C"Hhy Norwood who
awarded rhe Arkansas Economic Dev.:ioper or rhe Year Award. As a
runs the NOf\\lood & Norwood P.A. offices in Springdale. By pre-
membt"r of [he Paragould Rotary Club he has d ist in guished himself
senting the La\\}'cr Community Legacy Award ro Norwood, his
as a Paul Harris Fellow. A.5 an organiler and presidcnr of [he Greene
peers arc applauding rhe cfforts Norwood has madc in aiding rhe
County CAurrholisc Prest:rv<1tion Socicry, Inc.. he helped raise
adminisrrarion of justice.
enough money to save rhe histori( courthouse [h.:I( was sla(ed ror demolition. In the words of his nominator. Phi lhours' "excitement is infecrious and his deep drive and commitmt"nt to his communiry is wonhy or emularion."
Any p ersoll may tlomillate a lawy er 01' judge by completing the NOlllilllltiOIl Fonll and turuing the Form into the Arkansas Bar Association office 011 or before the nom;lIl1t;oll deadline. Nomination dendlines lire jllnuary 3 1st lind July 3 1st of ellch year. Nomimltion f0171lS IlIltl guidelines for tlJe IIwm路d are {wai/able at luwllJ,llrkbfll~Com or by contacting the Association. Vol 42 No.
2,
\pling 2007
Ihe Arbn,", w\\}er
3S
Law]
Disciplinary Actions
Final fICtionsftrnn jmlllnry J, 2007, to March
15,2007, by the OnmlliftJ!e 011 Professional Collduct. Stnll/llones p,<epared by the q[fo:e oj ProJessimuJ Collduct. Full text <WaD/lima m~
under the Court's Procedures, warranting disba rmcnr as th e sanction. SUSPENS ION:
available Otl4ill£ aJ
hnp:llcourts.stnte.m:us!cVln-Wcpc./'hIlL {Note: "Mockl" RItks rtfo> CO the RItks of ProfosS;QluJ Collduct lIS tlN!J existed ;n AJiulllsas prWr CO May 1, 2fXJ5. 'JtrkmISdS" RIdes '..firs CO tI,. RIdes lIS tlN!J exist ;11 AJluulSdS from May 1, 2005.] DISBARMENT: DARRELL F. BROWN , SR., Bar No. 72012, of Lircle Rock, Arkansas, was di s·
barred and his name removed from rhe registry of attorneys li censed by th e Stare of Arkansas by Arkansas Supreme Court Per Curiam Order issued M arch 8. 2007, in No. 05-592. The Per C uriam recites that, in rhe disbarment proceeding, Special Judge John Co le made a repon to the Co urt with his findin gs of fact and a recommendation for th e sanctio n of di sharmcnr. Mr. Brown did no t file a brief chal lenging th e report, which was accepted by the Co urt and 3 final o rder of disbarmem was granted. In part. Judge Cole found numerous instances of "serious misco nduct" includ ing ma((ers where Mr. Brown conve rted or misa ppro priated funds frol11 several cl ients. His acts have resulted in several awards to date from th e Supreme Court C liem Secu ri ty Fund to those form er clients. SURRENDER OF LI CENSE: C HARLI E LEE RUDD, Bar No. 89087, formerly of Hot Springs. Arkansas, had the surrend er of his Arkansas law li cense accepted by rhe Arkansas Supreme Court in a Per C uriam Order issued February 22, 2007, in li eu of Mr. Rudd going forwa rd in disbarmem proceedings arisin g from Co mmittee Case No. crc 2006-153, based o n Mr. Rudd 's guilty plea on October 3 1, 2006, to a C lass C felon y cri minal co mro ll ed-subsra nce charge in Garland ounry Circuit No. C R-2005·555-4. A fel o ny co nviction is a basis for a vio larion of Rul e 8.4(b) and is a "serio us crime" and "serious mi sco nduct" 36 The Arkansas la'Ayer
\oV'IIoIW.arkbar.com
LARRY C. DUNKLI , Bar No. 81051, of Lirtle Rock, Arkansas, had his privilege to practice law suspended for three (3) years by the Opin ion of the Arkansas Supreme Coun in No. 04·66 1 filed January 18,2007, in a disbarment proceedi ng filed for the Comminee on June 9, 2004, on a complaint filed by First M agnu s Fina ncial Corpo rati o n of Arizona, in Comminee Case o. PC 2005- 140, for violation of Model Rules 1.1 5(a), 3.4(c) and 8.4(c). In June 1999, Mr. DunkJin agreed to act as closing agent for a real estate transaction fo r property loca ted in Tulsa, OkJahoma. The parries to the loa n were Mark Kimbrough and First Magnus Financial Co rporatio n. The mo rtgage and promissory note were signed o n Jun e 17, 1999, and Dunklin in fo rmed Firsr Magn us that the documents had been execured. First Magnus th en fund ed the loan by wi ring $80,001.51 to Dunklin's 10LTA accounr. A d eed transferring the Tulsa property ro Mark Kimbrough was filed wirh the Tulsa County C lerk o n Seprember I , 1999. The Kimbrough mortgage was nor filcd with the C lerk unti l February 18, 2000. Dllfing the inte rvening period. twO other mortgages and pro mi ssory notes were filed with the C lerk involving the same property. First Magnus discove red th at their mortgage and promissory nore had not been timely filed and that it had lost p ri ority to the other loans. Kimbrough defaulrcd on the note. First Magnus fi led suir against Dunklin in Pulaski County ircuit Co urt for breach of fiduciary duties. Dunklin failed to respond [Q the lawsuit and a defauJr judgmenr was entered against him for $96,727.09, plus cosrs, posr-judgmenr inrcrest, and attorneys' fees. The Arkansas Coun of Appeals affirmed rhe defaulr juu~ m em in October 2002. Firs( Magnus deposed Dunklin ro discover assets. During the deposition, DunkJin was asked whether he knew or had previously represented Kimbro ugh. DunkJin ad mitted that he knew Kimbrough bur denied represc nt-
ing him. Dunklin did rep rese nt Kimbrough in a 1992 crim in al case. The openi ng balance for Dunklin's trust acco unr o n June I , 1999, was ·$23.28. Foll owi ng th e receipr of th e 10;111 proceeds from First Magnus. Dunklin wrOte checks from his truSt account for "overhead," "cash," and for paymcm o n a perso nal car loan. The closi ng ba lan ce for Du nkJ in's trust acco unt on Jul y 3 1, 1999, was -$168.54. HORACE A. WALKER, Bar No. 82 169, of Little Rock, Arkansas, had his privilege ro practi ce law suspended for three (3) months by Co mmittee Findings & O rder filed January 10, 2007, o n a complainr fi led by Ga ry Co ulter of Mincral Spri ngs, Arkansas, in Case No. C PC 2006- 10 I , for vio larion o f Model Rules 1.1 , 1. 2(a), 1.3, 1.4 (a), 1.4 (b), and 8.4(d). Mr. Co ulrer suffered a subsrantial back inju ry in a collision with a moto r home o n September 26, 200 1, an evem in which he was not ar fa ul r. By O ctober 200 I . he had hi red Horace Walker to rep resenr hi m, and on thar dare, Mr. Wa lker notified State Farm Insurance of his representatio n. Mr. Walker gathered medical records and was in frequent co rrespo ndence with Stare Farm inro mid-2003. In Augusr 2003, Srare Farm wrote Mr. Walker witll a $20,000 settlement offe r. Thercafter, Mr. Walker fai led to settle th e claim o r to timel y fi le suit to protecr his cl ient. Mr. Coul ter had difficu lty contacting Mr. Walker after mid -2003 and obtaining information about his claim. In Seprember 2005, Mr. Walke r se nr Mr. Coulrer a copy of his file. O n Seprember 26, 2005, M r. Coulter filed a pro se Co mplain r in Mill er Co un ty C ircuir Court (No. C V2005·353-2) againsr State Farm and rhe o ther dri ve r, trying to salvage his claim. H e failed , as the court granted a motion to di smiss his suit with prejudice in December 2005. Mr. Walke r's failure ro act in a timely and proper manner for his c1 iem COSt Mr. C uuller any chance of sctr\cmcnt o r recovery for injuries which were serious enough to cause his empl oyer to recire him o n disab ili ty in mid-2003. WOODSON D. WALKER, Bar No. 76 135, of Lirrle Rock, Arkansas, had his
L.l\...Ycr Disciplinary Actions pri vil ege
[0
practice law suspended for three
(3) years on January 4, 2007, when [he Arkansas Su preme Co urr, in No. 06-6 19, affirmed [he Co mmi ttee Findings & O rder fil ed December 16, 2005, after a public heari ng co nducted on December 9. 2005. o n a compla int filed by Rees hema Britt of Litde Rock in Case No. C PC 2005-083, for violation of Model Rules 1.4(a), 1.4(b), 5.5(a), 8.4(c), and 8.4(d). Reeshema Britt of Little Rock was injured in a maror vehicl e collision in February 2001 in which the ocher driver was at fa ult. She became Mr. Walker's cl ient for this matter in August 2002. Mr. Walker's Arka nsas law li cense was suspended in another matte r effective April 2 1, 2003, for o ne yea r, and hi s license has J
never been rein stated. By June 11 . 2003. Mr. Walker had received a serdemenr offe r of $5,500, whi ch was declined by Ms. Britt, as shown by M f . Walker's lertcr ro her of that date o n th e letterh ead of La rry Dunklin , his form er parmer o r associate attorn ey in the firm of Walker & DunkJin . Ms. Brirr th ereafter had su bstanti al difficuJry obtaini ng inform ati o n fro m Mr. \Valker or M r. Dunklin about her marrero in April 2004, after the expiration of the statU(e of limitation fo r her claim, she lea rned no lawsui t had been filed in her claim. She consuhed with ano rney Luther Sutter. She then was abl e to meet with Mr. Walker o n May 3, 2004. He [Old her he would try [0 get the $5,500 offer reinstated and her medical bills taken care of in some fas hion, with him to receive a one-third fee of any recovery. She d ecl ined and hired M r. Sutter to pursue relief. In August 2004, Mr. Surrer filed suit for legal malpractice against Mr. Dunklin and Mr. Walker in th e Brirr m atter. On Ap ril 14, 2005 , judgment for $75,000 was awa rded aga inst Mr. Dunklin and Mr. Walker in favor of M s. Brin on her legal malpractice cla im.
REPRIMAND:
No. cpe 2006-09 1, for violat ion of Model Rules 1.2(a), 1.3, and 8.4(d). Ms. Co n.,.l,
la[ions of Rules 1.1 , 1.8(h)( I), 1.8(h)(2) and 8.4(d). Mr. Depper was also fined $500 and
who speaks very little English, hired Bennett in Nove mber of 2004 to appeal an adve rse decision of th e Arkansas Workers' C ompensati o n Commiss ion. Her daughter,
o rdered to pay restitution to Ms. Lee in the amo unt of $8500 wim credit for most o f that the amo unt he had already paid vo lun tarily to her. Ms. Lee hired Mr. Depper dur-
Na m aly, occas io nal ly accompan ied her to vis its with Bennen and served as a transla-
ingJanuary 2003 to pursue a civil matter o n her behalf in connecrion with a perso nal
tor. M s. Co n ez obtained rh e fil e from her
injury maner. M s. Lee had been involved in
prev ious attorney for Benn ett's review. When he rece ived the fi le, Bennen realized
a ca r accident in Jan uary 2003. M r. Deppe r acted diligently for the first year he had [he
char m ere was limired rim e in whi ch to file
matter.
the noti ce of appeal. Although he drafted rhe notice of appeal, Bennett pl aced it into
cause of acrio n was nor fil ed prior £0 the running of the statute of limitation, whi ch
his Correz. office file, bue he did not file it.
caused Ms. Lee's claim to be barred. Mr.
Mistakenly believing tha[ he had filed [he
Depper was not thorough enough in his rep-
not ice of appeal, Benn ett informed Namaly
resenta ti on of Ms. Lee to either settle rhe matter or file a lawsuit prior to [h e expira-
tha[ he had fil ed [he appeal.
Bentonville. Arkansas, was reprimanded by Co mmittee Findings & Order fi led January
It was later
determin ed that Benn en had nOt filed the
tion of the stature of limitation.
appeal.
learning of the error, Mr. Depper contacted
Upon
ROBERT L. DEPPER,JR., Bar No. 81046,
Ms. Lee and negotiated with Ms. Lee for payment of mo ney which they believed she
of EI Dorado, Arkansas. was reprimanded
wo uld have netted fro m a se ttlement of her
by Committee Consent Findings & Order
personal injury claims. Ms. Lee accepted the offer and was paid what she would have
filed March 16,2007, on a Complai nt filed by Ruby Lee in Case No. 2006-110, for vio-
netted in m e settlement proceeds. However,
ELECTRICAL ACCIDENTS Paul D. Mixon, Ph.D., P.E. Engineering Co nsultant
P.O . Box 3338 State University, AR 72467 (870) 972-2088 (870) 972-3948 FAX pmixo n @astate.edu
pauLmixo n@yahoo.com
•
Accident Investigation and Analysis
•
Co ntact Cases a nd E lectrocutio n s
• Electrical Inj uries • Property and Eq uipm ent Damage •
BRUCE J. BENNETT, Bar No. 92140, of
H owever, me complaint in rhe
Electrical Fires
• Safety Code Compliance • Experr Witness • Disputes Settl ed
17,2007, on a co mplaint fil ed by Ms. Rosa Elena Cortez of Rogers, Arkansas, in Case Vol. 42 No. 21Spring 2007
n,C Arkansas Lawycr
37
Lavryer Disciplin:'lIy Actions M r. Depper did not comply with Rule 1. 8(b)( l ) and Rule 1. 8(h)(2) of tbe Ru les of Profess ional Conduct, which require that
writing of the right and advisabiliry of co nsulting with independent counsel before settli ng the claim. The Rel ease whi ch Mr.
before setding a claim for personal liability to a c1i em, a lawyer is (0 inform the c1iem in
Depper prepared releasing him from any liability with regard to the handling of M,.
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BACK ROW
Mary Schneider • john Stroud , jr jack Bell jack Davis • Frank Hamlin
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38 TIle Ark,msas La\\)'cr
www.arkbar.com
independent co unsel. WILLIAM GLEN HOGGARD, Bar No. 2000064, of North Little Rock, Arkansas, was reprimanded by Co mmittee Findings & Order filed February 16, 2007, on a com· plailH developed from information in the appeal fi le in CA05·1056, Rex Black vs. Arkansas Department of Hum an Services, in Case No. C PC 2006· 085 , fo r violation of Arkan sas Rules 1. 2(a), 1.3, 3.4(c) and 8.4(d) . Mr. Black wished to pursue an appeal of the lower couce's decision in Pope Coun ty C ircui t Court, and Mr. Hoggard entered his ap pearance in November 2005 specifically for thar purpose. After obtain ing multiple ex tensions of time co fLie a brief o n Mr. Black's behalf, Mr. H oggard did no r tender a brief unci.! afte r the appeal had been dismissed. Mr. Hoggard failed ro respond co the Appellee's Second Motion co Dismiss, which was gramed, endin g th e appeal.
,
FRONT ROW
Bob Hornberger • Sid McCollum
Lee's perso nal injury claim was signed by Ms. Lee when she was nor represented by
JOHN E. JOPLIN , Bar No 86098, of Fort Smith, Arkansas, was reprimand ed by CO lTImirree Findings & Order filed M arch 7. 2007, o n a Co mplaint filed by William M . Blacker of Fort Smith in Case No. C PC 2006·139, for viola tions of Model Rul es 1.1. 1.3, 1.1 (3), 1.4 (b), 3.3 (3)( 1), 8.4(c), and 8.4(d). Mr. Blacker was represented by Mr. Joplin , the pub lic defe nder, in a crimi nal marter. Mr. Jo plin entered into a plea agreemenc on behalf of Mr. Blacker. Mr. Blacker was nor clear o n (he terms of rhe plea agreemenc and was noc presem when the plea was acruaIly entered on his behalf. Mr. joplin did not provide Mr. Blacker with a copy of th e plea agreement, and Mr. Blacker did not know when to start makin g restitution payments. Mr. jopl in acknowled ged that he did not se nd the judgment or Amended judgment to Mr. Blacker. Mr. Joplin asse rted that the plea agreement present in the Jud gment and Am ended Judgment was nO[ the actual agree menr, beca use Mr. Blacker was not required CO make resti tuti o n in the am ount of $30,000, but on ly a much smaller amount. There was no docu mentation to establish thi s and
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Lawyer Disciplinary Actions therefore M f. Blacker wou ld be subject
[0
conrempt of cou rt if he failed to make resti-
tution in the
of $30,000.
amOlllH
Mr.
Joplin was not thorough enough in his representatio n of Mr. Blacker to he aware mat a
plea of "nolo contendere" which he entered on behalf of Mr. Blacker is "required to be received only from the defendant himself in open court." Mr. Jopl in misrepresenred the tru e facts to Jud ge Wilkinso n when he signed off on a Judgment and an Amended Judgment which set out tha t his client, Mr. Blacker, was required to pay a tmal of $30,000 in restitution. The actual agreement, acco rding (0 Mr. j opli n, was for Mr. Blacker [Q pay only $3,600 as res titution. joplin also misrepresenred th e truc facts to his client, Mr. Blacker, when he allowed Mr. Blac ker to believe that he was emering into a judgment in hjs cri minal marrer which would require Blacker ro pay $3.600 in restirutio n and then be eligible [Q have his reco rd expunged. MORRI S W. THOMPSON. Bar No. 80 145. of Li[tie Rock. Arkansas. was reprimanded by me Opinion of [he Arkansas Sup reme Co u" in No. 06- 1069. Morris W. Thompson vs. Supreme Co urt Co mmittee on Professio nal Conduct, delivered March 8,2007) affirm ing the Co mmittee Findjngs & O rd er filed March 7, 2007, on a complaint fi led by Leon Gooden of jonesboro in Case No. crc 2005-067. which assessed a reprimand, a $4,000 fine, and $378 costs
agai nst Mr. Thompson for violation of Model Rules 3. 1 and 4.4. The fum of [he case were reported in The Arkansas Lawyer in Vol. 4 1. No. 3 (ar page 38). Summer 2006. On March 7. 2003. Thompson filed a breach-of-co ntract lawsuit on behalf of a commc[Qr aga inst Mr. Gooden, seeking a money judgmem for work perform ed on Gooden's properry locared ar 2 13 N. Allis in Jonesboro. On May 30. 2003. Thompson filed a lis pendens nmice on eleven of Gooden's se parate properties. Gooden wanted to sell a property he owned at 216 N. Fisher but was unab le [Q do so beca use of the lis pendens notice. Gooden comacted twO local attorneys about the situation. The first ano rn ey spoke to Thompson in December 2003. T he second arrorney wrore T hompson in Janu ary 2004. Bo[h requested that Thompson promptly remove the lis pendens as ro any properties except the O IlC on wh ich the work was actual ly performed. On February II . 2004. Thompso n filed a release on nine of the eleven properties listed in the lis pendens notice. Arkansas law is wel l settled that a lis pendens nmice callnm be filed in a civil action seeking a money judgment. After being notified, T hompson rook ['\vo months before makin g any attempt to correct his error.
CAUTION: STEPHEN FISH ER. Bar No. 9 1073. of Little Rock, Arkansas, was cautioned by Co mmittee Findings and Order filed March 9. 2007. on a complain< by C hris and janetta Porrer of Litcle Rock, Arkansas, in Case No. cr 2006-143. for violarion of Arkansas Ru les 1.1 . 1.3. 3.2. 3.4(c). and 5.5(a). M r. Fisher agreed to represenc Chris and janctta Porter in a federal lawsuit, wh ere they all eged discrimination by their former employer. Mr. Fisher met with the Porte rs and accepted money for fees fro m them during a time wh en his license to practice law was suspended for fa ilure to pay his annual li cense fee. M r. Fisher fai led ro act dilige ntly and promptly in his representation of the Poners. He did nm serve rhe defendant in a prompt mann er and so ught ['\\10 extensions of time in which to do so. During the course of his represe ncation of the Porters, Mr. Fisher did not timely respond co the discovery served on him. He did nor respond to th e Motion for Summary Ju dgment fi led by the opposing co ullsel. H e was not thorough enough in his representatio n of C hris and j anetta Porter ro be ce rtai n that he sued all appropriate defendants in the matter. In addition , Mr. Fisher did not send the d.i scovery requests co his c1iems until twO weeks after the discovery requests were served on him by opposing co unsel. Instead of ex peditin g the litigation for the Poners, he requested extensions of time ro serve the
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40
nlC
Arkansas lm\ycr
www.arkbar.com
L.l\\)'cr Disciplin:'lIy Actions 200 I, an order was entered dismiss ing Ms.
defendam, failed ro timely respond to dis-
Mixon , Bankruptcy Judge. in an O ctober
covery, and reques ted extensio ns of time in
2004 hearin g. stared on the record in his
Murray's lawsuit without prej udice for fail -
order co res po nd
Motion fo r Summary
Co urt that Ms. Wise should seek a lawyer to
ure to comply with the pre-tri al o rder. In
Judgment filed by the oppos ing counsel in
sue Ms. Fisk for malpractice because she
November 2004, Mr. Hon eycutt informed
(0
the marter but [hen fil ed no response.
"gummed the case up. " He also found that
his c1i em the case had been dismissed . He
Although Mr. Fisher had been a lawyer for fourteen years in 2005. he failed to comply with Rule VlI of the Rul es Governing
Ms. Wise had a valid defense to the Motion
advised he r th ar it was his reaso nabl e belief
for Relief from Stay. had Ms. Fisk appea red
that the lawsuir had little, if any, "value"
to present it.
Judge M ixo n sa id o n th e
based upon the ci rcumstances o f the aJleged
Admissio n ro th e Bar whe n he failed ro pay
record that he was going to pursue an Ord er
liability and [h e eventuaJ inso lvency o f th e
Show Ca use on Ms. Fi sk, but there is no
tOrtfeaso r. After di scussing the matter with
record that o ne was pursued. Ms. Fisk was
th e Murrays and a friend o f theirs, Mr.
his 200 5 annual license fee
2005 and failed
to
by
March I.
pay his 2006 annual
license fee by March I, 2006. Pursuam
to
[0
not tho rough enough in her represe ntation
Honeycutt prepared a $4 ,000 pro misso ry
Section 22 of the Procedures of the Arkansas
of Ms. Wise to determine that she was eligi-
note fro m him
Supreme COLIn Regulating the Professional
ble fo r bankruptcy relie f pursuant
Conduct o f Attorneys at Law, he was nor
Chapter 13 of the Bankruptcy
(0
th e Murrays, with a pay-
be in an offi ce where [he practice of law is
would have benefitted her much mo re than
ment of $550.00 to be paid immedi ately and the balance to be paid in full by June I. 2005. He only made three paymen tS. Ms.
conducted during any period of suspensio n.
the Chapter 7 filed on her behalf. Ms. Fisk
Murray filed suit against Mr. Ho neycutt in
(0
to
ode. which
His law license was suspended fro m March
did not advise Ms. Wise; uf Lilt: Order grant-
August 200 5. Mr. Honeycutt self-reported
2. 2005 through June 10. 2005 . and from March 2. 2006 through July 13. 2006.
ing the relief from stay related to her home
th e
after the same was entered of record in
Professio nal Conduct and a formaJ com-
During bo th periods of license suspension ,
February 2004.
PAMELA FISK. Bar No. 20011 79. of Committee Findings & O rder filed January
to
plaint was filed.
he was practic ing law in his o ffice.
Texarkan a, Arkan sas, was ca mio ned by
matter
the
Commirree
on
Ms. Murray and Mr.
Honeycutt settled the maner o ut-of-court.
LAWRENCE C. HON EYC UTT. Bar No. 78074. of Hot Springs. Arkansas. was cauti oned by Committee Findin gs & Otd er filed February 12. 2007. on a self-referral
N. DONALD JENKINS. JR.â&#x20AC;˘ Bar No. 94231 . of Alma. Arkansas. was cautioned by Committee Findings & Order fil ed February 28. 2007. on a complaint by
12. 2007. on a complaint filed by Sherry A. Wise. in Case No. CPC 2006- 138. for violation of Model Rules 1.1 . 1.3. 1.4(a). and 8.4(d). In April 2003. Ms. Wise hired Ms.
arising out of his representation of Nicki e
Murray of Hot Springs in 2000-2004. in Case No. CPC 2005-1 58. for violation of Model Rules 1.3. 1.4(a) and 3.4(c). Mr.
Je ffre y and Lori Sex ton of Jonesboro,
Fisk ro represent her in a bankruptcy pro-
Ho neycutt was employed by Vickie Murray
and Lori Sex to n hired Mr. Jenkins to seek
ceeding.
At the tim e, Ms. \'V'ise was
to represe nt Nickie Murray, a minor, in rela-
immediate removal of a tax lien garnishment
involved in a c ivil lawsuit concerning her
tio n to injuries sustained wh en a vehicl e
from Lori's paycheck. Mr. and Mrs. Sexton
ho me and damages ro it ca used by defective
stru ck a corn er of the Murray's home caus-
met with N . Donald Jenkins. Sr., the attor-
She needed ro save her
ing Nickie ro fall and suffer injuries. Mr.
ney's father, in an office in Jonesbo ro. Mr.
ho me from foreclosure while the lawsuit was
Ho neycutt filed suit in Garland County
Jenlcins Sr. requested a $900 fee which he
pending. Ms. Fisk advised Ms. Wise that she was not eligible for Chapter 13 relief and had to file pu rsuant to Chapter 7 of the bankruptcy code. Ms. Wise ended up losing her home after Ms. Fisk did no t appear at a
Circuit Court o n Ms. Murray's behalf o n
apparently agreed to allow to be paid out
C ircuit Court issued a pre-trial order requir-
situation .
ing each parry to file a pre-trial brief. Mr.
action o n behalf o f the Complainants. Since
Honeycutt admitted that the o rder was
Mr. and Mrs. Sexton hired the Jenlcins Law
hearin g on the Mo tion for Relief from Stay
entered. Mr. Hon eycutt did no t fil e a
Firm to assist them with the tax lien gar-
roofing materials.
March 24. 2000.
The Garland County
Arkansas. in Case No. CPC 2006-074. for violation of Arkansas Rule I.4 (a)(4). Jeffrey
over time because of rhe Sexton's financial Mr. Jenkins Jr. did not take
by th e mortgage company. The Committee
response to the pre-uial order. On June I,
nishment in May 2005. Mr. Jenkins Jr.
fo und that Ms. Fisk did no t noti fy Ms. Wise
200 I, th e co urt's case coo rdin ator se nt a let-
failed to keep them inform ed of the effo rts,
of the Order, no r did she send Ms. \Vise a
ter to Mr. Ho neycutt advising him that no
if any. he had undertaken on their behalf.
copy of the O rder granting relie f from stay
respo nse ro the pre-trial o rder had been
He aJso failed to rerum me messages from
w hen the same was e ntered fi ve days after
received and that, if no res ponse were
the Sextons seeking informati on about the
the hearin g at which Ms. Fisk failed to
received by June 29. 200 I. the Complaint
legaJ matter entrusted to him .
appear.
would be dismissed for fa ilure to comply
Ms. Wise lost he r ho me and aJso
w ith
damages which she could have bee n seeking
Ho neycutt did not file a response to the let-
Little Rock, Ark.1.nsas, was cautioned by
ter from the case coordinaror. O n August 2,
C ommittee
in her c ivil litigation .
Ho norable Jam es
rh e co urt'S
pre-eri al o rd e r.
Mr.
JACK R. KEARN EY. Bar No. 77 194. of
los t a dlance at a substanti al amo unt o f
Findings &
Vo l. 42 No. 2/Spring 2007
Orde r filed
n,e Arkansas lawyer
41
Lawyer Disciplin:'IIY Actions Mr. Kearn ey represented Leon
holding that he had no jurisdiction
grant
February 27, 2007, on a r er Curiam Order
8.4(d).
referra] from th e Arkansas Supreme Court
in [he appeaJ of Leon Harden v. State, No.
Hard en, Ill , at trial. Following th e convicti o n, Mr. Kea rney filed the No ti ce of
C R06-966, in Case No. c r
2006-13 1, for
Appeal, and sought to be relieved by the trial
had already been filed. Concerned about the appeal being pursued, th e trial judge filed a
violati on of Arkansas Rul ~ 1.1 , 1.3, and
court. Th e triaJ judge denied the motion,
parcial record fo r Mr. Harden in ord er fo r
[0
the request because th e Noti ce of Appeal
the Appellate Court to hear Harden's Motion [ 0 Be Appoimed a New Attorney. After rece iving the record , rhe C lerk's offi ce pu t Mr. Kearney on noti ce
that he had to fll e a Motion for Rul e on rh e C lerk because of an uncimely Order
extending rhe time for filing rhe record on appeal. Mr. Kearn ey fil ed th e Mo tio n but did not address the Order. stating that the Mo tio n fo r Extension of Time was timel y. The Arkansas Supreme Court granted th e Motion fo r Rule on the Clerk and referred the matter to the Comm inee.
WALT ER C IW G LAMBERT, Bar o. 87 100, of Little Rock, Arkansas, was caution ed
by Comminee
Consent
Findings & Order filed January 17, 2007. o n a co mpl ai nt based on informatio n developed from the court file in No. C R04-6 15, Ge rman Marroqu i vs. State
of Arkansas, in Case o. C PC 2006160, fo r violation of Model Rule 1.3. Mr. Lambert represe nted Germ an Marroquin o n appeal from a denial of a Rule 37 Peti tio n by th e Bento n Coun ty C ircuit Court. A timely Norice of
Appeal was filed. Pu rsuant to Rule 5 of th e Rules of Appellate Procedure-Civil, the reco rd shall be filed with the clerk of th e Arkansas Supreme Court within ninety days of th e filing o f the first notice of appeal. As th e Notice o f
Appeal was filed on February 13, 2004, the reco rd was due ro be filed on May 13, 2004. T he record was nor tendered
until May 21, 2004. On May 27,2004, Mr. Lambert fil ed a Motion for Rule o n the Clerk. T he Supreme; Coun granted th e Motio n fo r Rule o n the Clerk and referred the maner to (he Committee.
D EN NI S R. MOLOC K, Bar No. 792 11 , o f Stuttga rt, Arkan sas, was ca u-
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Lawyer Disciplinary Actions [ioned by Co mmittee Findings & Order filed january 3 1, 2007, o n a Per C uriam Order referral from the Arkansas Supreme Court in th e appeal of Steve Hill v. State, No. C R·06·686, in Ca.c Nu. CPC 2006· I I 16, for violation of Arkansas Rules 1. 1, 1.3, and 8.4(d). Mr. Molock filed a timely Notice of Appeal for his client to both the ori gi nal Judgmem and COl11l11iunenr Order and to rh e Am end ed Judgment and
Commitment Order.
Thereafter, Mr.
Mol ock fiJ ed a Motion for Extension of Time to File the Record o n Appeal. The Motio n was filed within ninety (90) days of the second Notke of Appeal bur no t the first as it should have been. As a result the Order granting the Motio n was also untimely. The lerk would nOt fil e th e reco rd o n appeal, o nly tendered it. Mr. Mo lock then filed a Motion for Rule on the C lerk, accepting responsibility for the late filing. The Per C uri am granted th e Mocion for Rul e on the C lerk and refe rred him to the Co mmitree. EUGENE C. SAYRE, Bar No. 75 111 , of Little Rock, Arkansas. was ca utioned by Committee Consent Findings & Order filed March 16, 2007, on a complaint filed by Richard Brown in Case No. C PC 2006· 154, fo r violation of Model Rules 1.3, 1.4(a), and 8.4(d) . Mr. Brown hired Mr. Sayre during March 2003 to rcprcscnr him in a lawsu it aga inst a private individual and the Arkansas Hi ghway Transporratio n Department (AHTD), related to a portio n of State Hi ghway whi ch had been abandoned and th en des troyed by the private individual. T he AHTD was nOt claiming any responsibili ty to the road. Mr. Brown had no access ro his property and wanted the Highway Department to rebuild me road. Mr. Sayre filed a lawsu.it on Mr. Brown's behalf. T he Defendants fil ed a Motio n ro Dismiss. Mr. Sayre did not respond ro the Motion. An Order dismiss ing the AHTD. its Director and its Co mmi ss io ners was entered in Octobe r 2004. Mr. Sayre did no, notifY Mr. Brown of th e dismissal. Mr. Brown learned of the dism issal from another atto rney. In his consent to discipline proposal. Mr. Sayre ad mitted that he vio lated Ru les 1.3, 1.4(a) and 8.4(d ) of the M odel Rul es of 44 111C Arkansas la"'Ycr
www.arkbar.com
Profess ional Conduct as set forth in th e disciplinary co mpl ai nt. Mr. Sayre explained that over the course of the time period from 2000 through 2005, he and Mr. Brown devc:.lopcd not on ly a profess ional artorneyclient rel atio nship but also a personal friendship. Mr. Sayre had many orner events which took place in his pro fessio nal and perso nal li fe in September and OctObe r of 2003, the month s which fo ll owed the filing of the Mo tions to Dismiss. He was involved in very co ntentious li tigation in Pulaski County. Then in October 2003, Mr. Sayre had ro have fou r-way bypass surgery and was unable ro return to no rmal working ho urs for app roxi mately mree months thereafte r. By the tim e he returned to his regul ar practice, the time within which to respo nd timely to rhe Motion to Dismiss had long since passed. Mr. Sayre candidly admi ts that he d id not ask for an opportunity to file a belat· ed response. Mr. Sayre also ex plained that during 2004 and 2005, he was generally in contact with Mr. Brown . JOHN SKYlAR TAPp, Bar No. 76 123, of Hot Springs. Arkansas. was cautioned and fin ed $2,000 by Committee Findings & Order filed March 7, 2007, o n a Per C uriam O rder referral by the Arkansas Supreme Co urt in the appellate case of State of Arkansas v. Alan D. Wi lJiams, No. C R-03252, in Case No. C PC 2006·102, for viola· tion of Model Rules 1.3 and 8.4(d). The sanction was enhanced by the Panel's consideration of Mr. Tapp's prior disciplinary reco rd. M r. Tapp represenred Al an Will iams from October 28, 2004, until May II , 2005. Wi lliams ente red a co nditional plea of guilty. on a vehicle search issue. in Miller Co unty C ircuit Court, pursuant to Rule 24.3 of the Arkansas Rules of C riminal Procedure. After a hearing on November I, 2004 . the trial court den ied the Motion to Suppress. The order denying the motion was signed on November I. 2004, but not filed of reco rd with the Miller Co unty C ircuit C lerk until November 29, 2004. Mr. Tapp filed a notice of appeal from the Order o n Condi tio nal Plea on December 2, 2004. The actual judgment in the case was not entered until Decem ber 17,2004 . Mr.
Tapp did not file a notice of appeal from thar judgment. Mr. Tapp stated that he was employed by Mr. Wi lli ams in O ctober 2004. and was never paid. Mr. Tapp stated that following the hearin g o n the Motio n to Suppress, he repeatedly ealled Mr. Williams aski ng whether Mr. Williams wanted him to represe nt him in an appeal and whether Mr. Wi ll iams was goi ng to pay as he had agreed to do. Mr. Tapp stated that he went ahead and fi led a Notice of Appeal from the Order of Co nditi o nal Plea o n December 2, 2004, despite not receiving payment. As he did no t teceive a respo nse from Mr. Williams. Mr. l app filed a Motio n to Be Relieved as Co un sel w ith th e Arkan sas Co urt of Appeals. O n May II , 2005, the Co urt of Appeals granted Mr. Tapp's motion. Mr. Tapp sta ted th at he believed he had no fur· ther ob ligatio ns o n this legal matter. Mr. Williams filed a pro se Motion for Belated Appeal. In irs Per C uri am Order of june IS, 2006, the Arkansas Supreme Court stated [hat prior case law made it dear thar an appeal mus t be taken from the judgment and not from an order denying a motion to suppress. As no notice of appeal was entered following the judgment entered o n December 17,2004 , there was good reason for granting Mr. Williams' Motion fo r Belated Appeal. ERNEST WAYNE W ITT, Bar No. 76 142, of Ozatk, Arkansas. was caution ed by Co mmittee Co nsent Findings & Order fil ed january 8, 2007, o n a co mpl ai nt filed by William L. "Bud" Snow in Case No. C PC 2006· 142, for violation of Arkansas Rule 1.1. Mr. Snow employed Mr. Witt to represent him in Logan County Distri ct Co urt in a civil matter against Joel Bankster. After me lawsuit was filed in District Court, there was an altercation between Mr. Bankster and Mr. Snow in D ecember 1999 in which Mr. Snow fell and hit his head on a rock. A hearing was held in the first legal maller. The co urt found in Mr. Snow's favor and against Mr. Bankster in the amoum of $500.00, CostS of $40.95, and attorney fecs of $50.00. The judgment was filed o n july 3, 2000, and Mr. Bankster thereafter filed a Notice of Appea l to the Logan Co un ty
Lav\).cr DiSCipli/lal)' A ctions Circuit Co urt. Mr. Wi tt then filed 3 n Am ended Complaim in the appeal before the Logan Counry C ircuit Cou rt, addi ng a seco nd count of civi l battery for [he inju ri es that occurred o n December 2, 1999. T his Count II was nor part of the case in district court. Mr. Banksrcr and hi s atto rney fi led a MO(i on to Dismiss o r Strike Count II , stating [he circui t court did nO[ have subject mancr jurisdiction as ro the battery ccum as it had not been hea rd in distri ct courr. Mr. Witt fi led a response an d scared that the appeal from Distri ct COlin ro Circuit Court creared a de novo trial and the pleadings co uld be amended by ei ther parry at that rime. Mr. Banksrcr fil ed a Motion for Summary Judgment reassening char the circuit court lacked subject ma[[er jurisdi ction. Mr. W itt responded to the Motion fo r Summary JudgmelH with the same argumenu. The circuit co urt dismissed Count II of the Amended Com pla int for lack of subject matter jurisdictio n. The matter was remanded to district court. Despite assurances to Mr. Snow that his matter would be re-fil ed in district co urt, the matter was not re-filed and the stature of lim itat ions on the batte ry exp ired . •
Endnotes continued from page 2B
4. See Ark. Sup. Ct. R. 6-9(a)(I); Ark. R. App. P.-Civ. 2(c)(3). 5. Ark. Su p. Cr. R. 6-9(3)( I )(D). 6. Ark. Sup. Cr. R. 6-9(a)(2). 7. Ark. Sup. r. R. 6-9(c)(2) . The forms ca n be found at the Supreme CO lirt'S webs ite: h np:! /www.co llfts.s tate.ar.us. B. Ark. Sup. C r. R. 6-9(b)(2)(D). 9. Ark. Sup. Cr. R. 6-9(c)( I). 10. See Ark. Code Ann. § 9-27-341 (3)(4)( B) ( upp. 2005). II. See Ark. Sup. Cr. R. 6-9(b)(2); Ark. R. App. P.-Civ. 4(3). Nso nore rhar rhe rime for filing a cross-appeal is reduced from ten days ro five days fro m receipt of the notice of appeal. See Ark. Sup. Cr. R. 6-9(b)(2)(E); Ark. R. App. P.-Civ. 4(a). 12. Ark. Sup. C r. R. 6-9(c)(4), (d). This is less than the nin ety days provided for most appeals under the rules. See Ark. R. App. P.-Civ. 5(a).
13. Ark. Sup. C r. R. 6-9(e). 14. Ark. Sup. C r. R. 6-9(f). 15. Ark. Sup. Cr. R. 4-4. 16. Ark. Sup. C r. R. 6-9(e), (f). Briefs in other cases ate limi ted to twenty-five pages un less pe rmiss io n to exceed that limit is ob£a ined by rhe appeJlate court. Ark. Sup. Cr. R. 4- 1(b). 17. Ark. Sup. C r. R. 6-9(g). l B. Ark. Sup. Cr. R. 6-9(i). 19. Ark. Sup. Cr. R. 2-3(a), 2-4(3), 69(i)(2) . 20. Ark. Sup. C t. R. 6- 10(3). 2 1. Ark. Sup. C r. R. 6-1 O(c). 22.359 Ark. 13 1, 194 S.W.3d 739 (2004) .•
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The Arkansas Lawyer
47
In Memoriam
Marshall Norfleet Carlisle Mars hall No rAeer C arlisle o f Fayerreville Ji cu December to, 2006, at til t:: age of 79. H e graduated fro m the Uni versity of Arkansas at Fayettevill e and earned his juris d ocrorate degree fro m th e Uni versiry of Arkansas School of Law in 1951. He clerked fo r Arkansas Supreme C ourt Jud ge Paul Ward and then practiced law in Hoc Springs and Lird e Rock befo re movin g [Q Faycn cvi ll c. H e join ed the law firm of Murphy and Burch, which later became Murphy and Carlisle. His 55m year of practice was celebrated las t September, and he was ho no red as rhe oldest practi cing arrorney in Was hingto n Co un ry. He was a mem ber of [he Arkansas and Washingto n Co un ry Bar Associations. Was hingro n Co un ty Ci rcuir Judge W illiam Sro rey said of Ca rlisle in an arricJ e in the Fayetteville Morning News, "MarshaJl was a fin e lawyer. He was a gcnclem an in all respects." He is survived by his wife, Joy Bizzell arlisle; a sister, M anha Esme Woody; three daugluers, Kim RadifF, Sandy AMern and Leslie Benson; two stepsons, Erhan Fri ar and Eri k Friar; 10 grand child ren; and three grear-gra ndchild ren.
Compro n & Prewett (what is now o mp ro n, Prewerr , Th omas & Hi ckey) where he wo rked until his retiremenc in 2003. He st!rvt!d as gcllt:ral counsel [Q the Na tio nal Bank o f Commerce. He was a lo ngtim e m ember of the Arkansas Bar Association, where he se rved on severa] COI11 minces and sectio ns, includi ng servi ng as chair of the Youn g Lawyers Section in 19 59. H e was a fell ow of th e Arkansas Bar Fo und ario n. H e was a member of the Am eri ca n and Uni o n C ounry Bar Associatio ns and a fellow o f the America n Tri aJ Lawyers Association. He was an arbirrator fo r the Fed eral Medi atio n and Conciliatio n Service from 1962 to 197 1. He was a member of the Arkansas Board o f Law Examiners fro l11 1980 to 1986 and was appoi m ed to rhe Arkansas O il & Gas Commissio n from 1985 to 199 1. In add itio n to his impressive legal ca reer, Prewen was kn own for hi s role in heaJth care in somh Arkansas, serving on numerous health ca re boa rds. He is survived by his wife of 54 years, Evon I'rcwerr; tWO so ns, Philip and Tab; three gra ndchildren and two stepgralldd lildren.
1997. Befo re raki ng his sea r o n rhe Appeals Court, C rab tree was a ci rcuit-chancery judge in Bento n Co un ty fo r six years. Pri o r to th at, he had se rved as a public d efender and city attorn ey, and maintained a priva te law practice. He was decorated for his service in th e Vietnam War and wo unded whil e serving as a Los Angel es po li ce officer. He was a mem ber o f rh e Arkansas Bar Association and a fel low o f the Arkansas Bar Fo undatio n. H e had recently chan ged his last name to ho nor his late grand fa th er, James Paul Sho n . In an anicl e in the Arka nsas Democrar Gazette, atto rney Sean Keith said Judge Crabrree was co mm itted to the bench and "he had the perspecti ve of a po lice o ffice r and a public defender. H e had a real balance that mos t judges d o n't have." Atto rney Robin G reen said of Judge C rabt ree in a.n article in the Bem on County Daily Record, "H e was a model judge. W hil e practi cing in his court, I kn ew that the law and fai rness wo uld dictate his decisio ns." H e is su rvived by h is moth er; his wife of 25 yea rs, Diane C rouse C rabtree; a dau gh te r, Michelle Hacker; (wo sons, Jarred and Ben C rabtree; and four grandchildren.
Judge Terry Lee Short-Crabtree
Nancy Hall Bailey
Judge Te rry Lee Sho rr-Crab"ee of Bento nvi lle died January 6, 2007 , at th e age of 55. He ea rn ed his undergrad ua te degree from th e Un iversity of Arkansas at Fayetteville, and hi s juris doctorate degree fro m the Uni ve rsity of Arkansas School o f L1W. He wo uld have stan ed hi s seco nd term as an e1ecred judge on the Arkansas Court of Appeals. He died o ne day sho rr o f m e 10,h anni ve rsary o f his first swea rin g- in ceremo ny as an Appea ls Coun Judge on January 7.
Na ncy Hall Bail ey of Lirrle Rock died January 9,2007 , ar rhe age of 77. She graduared from the University of Arkansas in Fayetteville in 1952 with a Bachelor of Arts d egree. Acco rd ing to an obituary in the Arkamll1 Democrat Gazette. her proudest educm io nal ac hievement was the co mpletio n o f a law d egree and the attai n ment of her law lice nse at the age o f 6 0. She also p roudl y comillued th e "C ri p H all Awa rd" at Fayettevi lle, whi ch was originated by her
William I. Prewett
W illiam I. Prewerr of EI Do rado di ed Jan uary 3 , 2007, ar [he age of79. H e earn ed hi s juris doctO rate degree fro m the Un iversity of Arka nsas School of Law in 1952. He bega n his career in EI Do rado in p ri vate pracrice u ntil 1957 when he was elected as 13th District Prosecut ing Ano rn ey, a pos itio n he hel d u ntil 1963. He then jo in ed Wa lter Brown and Rob en Co mp ro n ro form th e law firm o f Brown, 48 TIle Arkansas L~.I\\'ycr
www.arkbar.com
In
fuher. CC. "Crip" Hall. in 1950. She was a lo ngtim e member of the Arkansas Bar Association where she served on numerous committees and was a fellow of rhe Arkansas Bar Foundation. She was awarded with the Presidential Award in 1994 for her dedication and service ro the Association. She was a member of rhe American and Pulaski Co unry Bar Associa ti o ns and (he Dow!lcown Litde Rock Kiwanis C lub. She had a multifaceted career, includ ing work as a speech therapist. televis ion announcer and weamer girl. speech and drama teacher and debate coach ar Hall High School. and Bank Marketing Office r a nd Assistant VicePresident in rhe Trust Deparrment of Union National Bank. She is survived by her husband of 54 years. R. Roben Bailey; daughrer Dr. Anne H aJJ Bailey; and so n Ric Bailey.
1999 afrer 21 years on rhe federal bench. She
Edward Wilson "E.W." Brockman, Jr.
was a longti me member of the Arkansas Bar Association and was a fellow of the Arkansas Bar Foundation. She received the Gayle Penus Ponn Award in 1987. In an article in rhe Arkansas Dnnocrnt Gazette, anorney C harles Harriso n, Roy's former law clerk, said of Judge Roy, "It was a profession heavily dominated by men. She never let that impede her career." Her brother, Walls Trimb le, said of hi s sister, "One of her primary attributes that cont ributed ro her success was her genuine interest in people. n According to this same arricle, Judge Roy was chosen as th e Arkansas Democrat Gaulle's Woman of the Year Award in 1976 and received a plaque in her honor that she was very proud of that said, "As a law, clerk, lawyer and trial judge, Elisjane Trimble Roy established a reputation for imegrity, intelligence and independence. As the first woman on the Arkansas Supreme Courr, she has become a sym bo l of pride and insp iration for all women ."
Edward Wi lson "E,W." Brockman , Jr., of Pine Bluff died March 3. 2007. ar the age of 85. He attended Washington and Lee Uni versity and graduated from the Universiry of Arkansas at Faycrccvill e. H e earned hi s J .D. from the Uni versity of Arkansas School of Law. He served in the U.S. Army during World War II. Brockman served as a member of rhe Arkansas General Assembly from 1950 rhrough 1956. Following his legislative service, he became a parmer in the Brockman law firm in Pine Bluff. which his fu[her starred in 1905. He served from 1957 rhrough 1965 as prosecutOr for the lith Judicial District. He was a senior partner in the law firm of Brockman. orton, and Taylor before serving of counsel when he retired in J 999. He was a longtime member of the Arkansas Bar Association and a sustaini ng fellow of the Arkansas Bar Foundation. He was a member of the American an d Jefferson County Bar Associations. He was an accomplished musician-si ngi ng in the church choir, and playing the Aute and saxophone. H e is survived by his wife. Elizaberh Dearing Wesrbrook Brockman; son, Howell Dearing Westbrook; twO daughters, Betsy \Vestbrook Burrow and Ann Westbrook Raines; four grandchildren and two great-grandchildren.
Judge Jim H arber Boyd
Judge Elsijane Trimble Roy Judge Elsijane Trimble Roy of Lirrle Rock died January 23. 2007. ar the age of 90. Judge Roy helped lead rhe way for women in th e legal profession in Arkansas. After graduatin g from th e University of Arkansas School of Law in 1939, where she was the only female in her graduating class, Judge Roy began her caree r in her family's law firm in Lonoke. In 1966, she was appo inted Arkansas's first woman circuit judge. In 1975, she was appo inred Arkansas' first woma n Supreme Co urt Justice, and in 1977 she was appo imed Arkansas' first woman Federal Judge and the first woman appoi nred to the 8th C ircuir. She followed in the footsteps of her father, rhe late Thomas C. Trimb le, who was a federal judge fo r more rhan 20 years, and evenrually she presided over her f.."tche r's courtroom. She retired in
MClllori~1ll
JudgeJil11 Harber Boyd. r.â&#x20AC;˘ ofSpr ingdale died February 8. 2007. ar [he age of 64. He graduated from [he University of Mississippi in 1965 and earned his juris doctorate degree from [he Uni ve rsity of Arkansas School of Law in 1973. He was in general practice for 17 years and served as the Fayenevi11e City ProsecU(or. He became gene raJ counsel for Co ntinental Ozark Inc., wh ich later became TransMonraigne I nCo H e returned to ge neral practice in 2000 and he and his wife starred Boyd L1W Firm, PA. He worked as ge neral co un sel for Streicher Mobile Fueling, Inc. in Fo rt Lauderdale, FL, until his dea th. He was a longtime member of the Arkansas Bar Associat ion whe re he served on numerous comminees and sections. He was a member of the Washington County Bar Association and Arkansas Trial Lawyers Association. He served as judge for [he Ciry of Johnson and as district judge in West Fork and Prairie Grove. He was appoi med (Q se rve on cases in the Arkansas Court of Appeals and Arkansas Supreme Court, including an appointment as the Ch ief Justice of the Arkansas Supreme Co urt in 2004. He is su rvived by his wife of 46 yea rs, Dianne Carpe nter Boyd ; so n Jim H. Boyd. Jr.; daughrer. LeeA nn e Boyd Williams; and four gra ndchildren.
Fred E mb ry Picken Fred Embry Picker< of Texarkana died February 7. 2007. ar [he age of 78. He received his undergraduate degree from the University of Arkansas MOIHicello. his Masters Degree from the University of Arkansas ar Fayetteville. and hi s juris doctorate degree from the Univers ity of Arkansas School of Law. He was a vete ran of the U.S. Navy. He began a private law practice following law school, during which rime he served as prosecuting attorney fo r th e Nimh Judicial C ircuit. In 1976, Picken was appo inted as Administrative Law Judge by the Social Securiry Administration Bureau of H ea rin gs and Appeals. He is survived by his wife of 56 years, Lela Barrett Picken; four sons, David, Mark, John. and Joe Pickett; and 12 gra ndch ildren. _
Vol. 42 No. 21Spring 2007
n,e Arkansas Lawyer
49
The Arkansas Bar Foumlntion aclmowledges with gratefuL appreciation the receipt of the foUowi"g memorinl, honorarium and schoi4rsbip contributions receivea Juring tlJe period ]fl11Ua_ry I, 2007, through March 15. 2007.
IN MEMORY OF NANCY BAILEY Judith Ryan Gray Dennis and Jane Shackl eford Fred Ursery
SCHOLARSIDP CONTRIBUfIONS
IN MEMORY OF SANDRA WILSON CH ERRY Sharon F. Die
M. JEFF STARLING , JR. SCHOLARSHIP FUND
IN M EMORY OF ROB ERT COMPTON Griffin, Rainwater & Draper, P.L.e.
WILSON & ASSOC IATES ET HICS SCHOLARSHIP FUND Robert M. Wilson, Jr.
VINC ENT W. FOSTER, JR. SCHOLARSHIP FUND John K. Baker
Jefferso n and Summer Starling
IN MEMORY OF JUDGE PAUL JACKSON Everett Edsil Harber IN MEMORY OF PATTI ANN MOORE Judge James Mixon
MEMORIAL GIFTS Please remember (he Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Acknowledgmems are
IN MEMORY OF WILLIAM PREWETT
sem by me Foundation
Griffin , Rai nwater & Draper, P.L. C.
Norwood Phillips Dennis and Jane Shackleford Judge John and Marietta Stroud Fred Ursery
to
the fam ily advising them of the
comriburion. The Arkansas Bar Foundation also receives and acknowledges gifts honoring individuals for a special event in their lives. Gifts tax
to
the Foundation are deductible for federal income
purposes and support the Foundation's work in making
scholarship funds avail able fo r law studems, aiding in educa-
IN MEMORY OF JUDGE ELSIJANE TRJMBLE ROY Barbara Amsler Judge James Mixon B. Jeffrey Pence Richard D. Taylor Fred Ursery
tion of the pu blic about lega] matters, supporting projects that assist in improvi ng and facilitat ing the administration of justice and fu ndi ng other law-related charitable efforts. Contributions may be se m directly to the Arkansas Bar Foundation. The staff appreciates having the name of the family member to whom acknowledgments should be scm. Please feel free
IN MEMORY OF G ENEVA "JEANY" SHACKLEFORD Dennis and Jane Shackleford IN MEMORY OF DR. ROBERT R. WRIGHT, [[[ T homas and Melissa McCain Sheffield Nelson
50
n,C Arkansas La'rycr
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(501) 375-4606 or (800) 609-5668 for further info rm.tion. Arkansas Bar Foundatioll 2224 Conondale Lane Little Rock, Arka nsas 72202
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