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THE ARKANSAS

January 1988

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REGULAR FEATURES2 The President's Report

5 Point of ViewlLetters

SPECIAL FEATURES

LaARKANSAS

John F. Stroud. Jf.. PresidentPhilip E. Dixon. President-ElectSandra Wilson Cherry. Sec.-TreasurerVincent W. Foster. Jr.. Council Chair

Wm. A. Martin, Executive DirectorJudith Gray. Assistant Executive

Director

OFFICERS

January 1988Vol. 22, No. 1

EXECUTIVE COUNCIL 8 Law. Literature & Laughter

26

Has the Color BarrierFallen.? by Phyllis 11

Harden Carter

Phase I: Automatingthe Law Office. by 15

Charles A. Morgan

Madison P. Aydelott. 1IIH. Murray ClaycombJohn D. Eldridge. 1IIDonald K. HarpRonald D. HarrisonRobert L. Jones. 1IIR. Gary NutterRobert G. SerioBobby E. ShepherdJames M. Simpson. Jf.Carolyn B. WitherspoonRobert R. Wright. 1II

EX-OFFICIO

John F. Stroud. Jf.Philip E. DixonRichard F. HatfieldSandra Wilson CherryVincent W. Foster. Jr.Michael H. Crawford

Up Against the WaIL 23by Chris Barrier

3032

The Developing Law:Sales of a RemainderInterest. by George N.Plastiras and Philip Miron

Disciplinary Actions

In MemoriamEDITOR

Ruth M. Williams, Director ofCommunications

The Arkansas Lawyer (USPS 546-040) ispublished quarterly by the ArkansasBar Association, 400 West Markham,Little Rock. Arkansas 72201. Secondclass postage paid at Little Rock. Ar­kansas. In all counts. POSTMASTER:send address changes to Arkansas BarAssociation. 400 West Markham. LittleRock. Arkansas 72201. Subscriptionprice to non-members of the ArkansasBar Association $15.00 per year and tomembers $10.00 per year included inannual dues. Any opinion expressedherein is that of the author, and notnecessarily that of the Arkansas BarAssociation or The Arkansas Lawyer.Contributions to The Arkansas Lawyerare welcome and should be sent in twocopies to the Arkansas Bar Center. 400West Markham, Little Rock, Arkansas72201.

All inqUiries regarding advertisingshould be sent to The Arkansas Lawyerat the above address.

3436383941

Arkansas IOLTA Program

Judicial Department Report

Executive Director's Page

Young Lawyers' Update

In-House News

ON THE COVER:Okay, close your eyes. Now, tell us what

you've got on the walls in your law office.If you're lucky, maybe a couple of theprints that go with the duck stamps, andsome drawings by your kids. In "UpAgainst the Wall," Chris Barrier. of LittleRock. a member of the Mitchell, Williams,Selig and Tucker law firm, explains thaI itdoesn't have to be that way. There is a wayfor you to see what is available from morethan 300 artists living and working here inArkansas. You can get some advicethrown in for the price of the art and alsofind out something about the artist simplyby registering with the Arkansas ArtistsRegistry.

January 19S5/Arkansas Lawyerll

THE PRESIDENT'S REPORT

Mandatory CLEAReality

Contract LegalServices

Brief WritingLegal Research

1700 First Commercial BUildingLittle Rock, AR (SOl) 372-0884

WILLIAM ADOLPH OWINGS

Attorney at Law

LONG-RANGE PLANNINGAlthough we had a planning

retreat in the spring of 1987 to dis­cuss professionalism in Arkansas,the Association has not had a gener­aL long-range planning retreat innearly four years. These retreatshad been held annually at the RedApple Inn. Retreats every year areprobably too frequent. but certainlyafter four years we are due to pur­sue long-range planning with fullvigor. Robert L. Jones, III, is thechair of an excellent committee thathas planned a retreat at DeGrayLodge on April 22, 1988, where wecan develop a five-year plan for theArkansas Bar Association. Most ofthe major programs undertaken bythe Association in recent years.such as mandatory CLE, IOLTA. theClient Security fund and legalspecialization, have gained fruitionat similar retreats. I am confidentthat new, meaningful objectiveswill emerge from this meeting. Iurge you to attend if you are one ofthe persons invited to participate inthe retreat. 0

cessful. it will be continued everyyear and expanded to include a sim­ilar consortium on the fayettevillecampus.

ships, legal services for the indigentor other worthy objectives to be de­termined by the Arkansas IOLTAfoundation's Board of Directors. Iurge any of you who have not signedup to come aboard SO that interestfrom your trust accowIt can be usedfor law-related public efforts in Ar­kansas which improve our legalsystem.

INTERVIEWING CONSORTIUMThe Law School Liaison Commit­

tee, co-chaired by Joe B. Reed and J.Bruce Cross, has planned an Inter­viewing Consortium to bring lawstudents and attorneys together inLittle Rock during the Mid-YearMeeting of AICLE and the Associa­tion on Thursday, January 21. at theExcelsior Hotel. Twenty-one lawfirms have expressed an interest ininterviewing on that date forsummer law clerks. Hopefully therewill be strong participation fromlaw students at both the Little Rockand fayetteville campuses. Thiswill be a wonderful opportunity forboth students and attorneys to con­solidate their interviews to a singleday and save time and travel for allconcerned. If the program is suc-

By John f. Stroud, Jr.

Thanks to the Arkansas SupremeCourt, mandatory continuing legaleducation has finally become a re­ality in Arkansas. We join 28 otherstates, including all the states con­tiguous to Arkansas, that have todate adopted similar programs. TheArkansas Bar Association first initi­ated a study of the subject in May1983. This study culminated in ap­proval by the Executive Council onApril 27, 1985, of a petition to theSupreme Court for adoption ofproposed "Rules for MandatoryContinuing Legal Education:' Myspecial thanks to W. Russell Meeks,ill, who, as chair of the special Man­datory Continuing Legal EducationCommittee, dralted the original pe­tition in 1986 and our supplementalpetition in 1987. The Per Curiam or­der of the Arkansas Supreme Courtdated November 23, 1987, approvedmandatory CLE without elaborationbut as soon as the court administra­tor has been employed, we shouldsee a supplemental order with morespecifics. With the advent of man­datory CLE, you will soon see moreprograms covering a diverse rangeof topics presented by the ArkansasInstitute for Continuing Legal Edu­cation and the Arkansas Bar Associ­ation and I predict it will not be longuntil the general level of competen­cy of all practicing attorneys in Ar­kansas will he noticeably im­proved.

IOLTAThe Interest on Lawyers' Trust Ac­

counts program (I0LTA) is alive andwell thanks to the efforts of its exec­utive director, Susanne K. Roberts,and the many attorneys throughoutthe state who have assisted with herrecruitment efforts. Due to sufficientnew additions of participating at­torneys and financial institutions.approximately $120,000 will beavailable during 1988 for scholar-21Arkansas LawyerlJanuary 1988

January 1988/Arkansas Lawyer/3

If/ILL/AM E. BROWN. PrmdnJI- H01Jortl') MnJlher nj the Natio1/(t/ Auol"iatif/n oj uga/ Set"retarifJ -

Order as many copies as you need today!Please send __ copies of the 1987-88 ARKANSAS LEGAL DIRECTORY.

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SPECIAL FEATURE$-

• A handy guide to county. state andfederal offices including departments ofthe U.S. and Arkansas state government.

• A complete digest of courts containingterms, rules and juriSdiction of federal,state and local courts with names.addresses and telephone numbers of courtpersonnel.

• A complete roster of attorneys and lawfirms in Arkansas with addresses andtelephone numbers.

• Professional associations includingofficers, committees and sections of theArkansas Bar Association.

• Professional and biographical data ofsome of the law firms and individualpractitioners in Arkansas.

ARKANSAS CODEOF 1987 ANNillATED

Official Edition

A t midnight. December 31. 1987.the Arkansas Code of 1987 Anno­

tated becomes the official code oflaws for Arkansas. replacing theArkansas Statutes of 1947. f...- In1984 The Arkansas General Assem­bly. through its Code Revision Com­mission. contracted with The MichieCompany for a recodification of thegeneral and permanent law of Ar­kansas. Working in coop­eration with the Commis­sion. The Michie Companydevoted its editorial andtechnological resources tothis project. f...-

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41Arkansas LawyerlJanuary 1988

By Vincent W. Foster, Jr. POINT OF VIEWILETTERS

PROPOSED CODE OF ETHICS

NO PROFESSIONALSIN GOVERNMENT?

On June 9, 1987, Governor BillClinton appointed a 19-memberCode of Ethics Commission to de­velop a comprehensive code ofethics for public officials and em­ployees. By the meeting of theHouse of Delegates in Fayettevilleon October 24, 1987, the Commis­sion was only in the early draftingstages of a proposed ethics code.The House adopted a generalpolicy concerning ethics legisla­tion and acknowledged it wouldbe necessary for the Association'sLegislative Oversight Committeeto deal with this matter as it devel­oped since the House would notmeet again until January.

On October 26, the Committeemet to consider drafts by sub­committees of the Commission.On October 28, AssociationPresident John F. Stroud, Jr.,President Elect Philip E. Dixon andVincent W. Foster, Jr., chair of theLegislative Oversight Committee,appeared at a public hearing ofthe Commission to present thegeneral policy statement of theHouse which was adopted fourdays earlier. In addition,President Stroud identified twospecific areas of concern: I) pro­posed restrictions on the practiceof legislatorllawyers and membersof their firms before governmentagencies and, 2) provisions whichwould require legislator/lawyersand public officials to make dis­closures which might violate theRules of Professional Conduct re­lated to confidentiality.

On November 13, the Commis­sion issued a draft of the proposedEthics Code and on November 21.the Committee met and developedcomments on specific proposals.President Stroud, President ElectDixon and Foster appeared at apublic hearing of the Commissionon November 23, accomponied bystate Senator Wayne Dowd ofTexarkana, and presented thesecomments. Dowd, an attorney, tes­tified concerning his personalview of the practical effect of someof the proposed prohibitions.

COMMENTS BY ARKANSAS BARASSOCIATION ON DRAFT CODE

OF ETHICS BILL"The Arkansas Bar Association

supports the concept of legislation

which more broadly addressesethics in state government thanprevious legislative enactments,and commends the Governor'sCode of Ethics Commission for thetime and effort they have devotedto this project. The Association haspreviously supplied the Commis­sion with a general statement ofpolicy on the proposed code. Webelieve the state has a legitimateneed to attract qualified profes­sionals for service in governmentas well as to maintain high ethicalstandards, and we are concernedthat the proposed code unneces­sarily discourages professionalsfrom participating in government.The Association requests the Com­mission to consider the followingfour specific concerns about theproposals in the draft code whichwere released by the Commissionto the public on November 13, 1987:

"I. Chapter V, section HI), in ef­fect prohibits lawyers who arestate legislators and all other at­torneys in a firm with a legislator/lawyer from 'appearing' beforeany state agency for compensa­tion, except judicial proceedingsand the Arkansas Workers' Com­pensation Commission. The provi­sion has a corresponding prohibi­tion against attorneys in a firmwith a lawyer who serves on thequorum court appearing beforecounty agencies and a prohibitionagainst attorneys in a firm with alawyer who serves on the citycouncil or board appearing beforemunicipal agencies.

"Because our state and localgovernments rely upon part-timelegislators who receive modest orno compensation, their abilities to

earn a living from their primary vo­cation should not be unnecessarilyrestricted. We believe that thecitizens of Arkansas are wellserved by having appropriate rep­resentation of attorneys among themembers of the law-makingbranches of state and local govern­ment. In the 76th General Assem­bly, there are 14 senators and 17representatives whose primary vo­cation is the practice of law.Twenty-five of these legislator!lawyers practice in firms withother attorneys. The proposalwould prevent not only these legis­lators but also any attorney in alaw firm with them from represent­ing any client with a dispute underthe jurisdiction of any state agen­cy. This prohibition is not limitedto adjudicatory proceedings andcould include representation in­volving, for example, a tax refundclaim before the Revenue Divisionof the Department of Finance andAdministration;' a license appli­cation with the Department ofHealth; a corporate filing with thesecretary of state; an industryseeking approval of industrial rev­enue bonds before the ArkansasIndustrial Development Depart­ment; a claimant before the Em­ployment Security Division; and aconsumer complainant before theInsurance Department or the Secu­rities Department or the Consumer

State Sen. Wayne Dowd of Texarkana told the Code of Ethics Commission inNovember that the restrictions on lawyerllegislators in the proposed ethicscode would "chW lawyers from wanting to be legislators." Sen. Dowd, alawyer for nearly 23 years, appeared before the Commission with ArkansasBar Association President John F. Stroud, Jr., of Texarkana, and PresidentElect Philip E. Dixon and Vincent W. Foster, Jr., chair of the LegislativeOversight Committee, both of Little Rock.

Protection Division of the Office ofAttorney General. We are con­cerned that the partners and asso­ciate attorneys of legislator/lawyers and of potential candi­dates for the legislature shall de­termine that this broad restrictionupon their practice is simply toogreat a price to pay for associationwith a legislator, in addition to thetime and financial sacrifice thatmany legislators must alreadymake to fulfill their legislativeduties.

"It has been suggested at apublic hearing of the Commissionthat this proposed absolute prohi­bition is necessary not only toeliminate attempts by legislatorsto improperly influence publicservants, but also to eliminateeven the appearance of improprie­ty. The Arkansas Model Rules ofProfessional Conduct. adopted bythe Arkansas Supreme Court togovern lawyers in Arkansas, pro­vide expressly that it is profession­al misconduct for a lawyer to stateor imply an ability to influence im­properly a government agency orofficial. (Rule 8,4(e),) Violations ofthis and other professionalstandards by attorneys are cur­rently punishable upon complaintto the Arkansas Supreme Court

6/Arkansas LawyerlJanuary 1988

Committee on Professional Con­duct. Under other provisions of thedraft ethics code, a legislator whoattempts to use his official posi­tion to secure anything of materialvalue that would not ordinarily ac­crue to him in the performance ofhis official duties is guilty of a vio­lation - a class A misdemeanor.(Section l(j) of Chapter V,) In lieu ofan absolute ban upon representa­tion before governmental agen­cies, we suggest this proposedprohibition be expanded to en­compass attorneys associatedwith a legislator/lawyer who at­tempt to use the official position ofthe legislator/lawyer to influencethe conduct of a public servant.This specific prohibition would ap­pear to be a reasonable and ade­quate protection against theabuse which is the concern of theCommission when balancedagainst the likely side effect of anabsolute ban - the eliminationfrom public service 0\ those well­qualified attorneys who wouldnever attempt to abuse their posi­tion as a legislator.

"2. Chapter V, section 1(h), re­quires a public servant. other thana state legislator, who is requiredto take any action or make any de­cision in the discharge of his offi-

cial duties that may cause finan­cial benefit to him or 'a businesswith which he is associated: toprepare and file a written state­ment describing the matter 'andthe nature of the potential conflict.'Section 1(i) places a similar re­quirement upon a state legislator.Our concern arises from thevagueness of: (1) what is meant bythe 'business with which he is as­sociated: and (2) the term 'the na­ture of the potential conflict.'

"Does this 'business' include aprofessional association? Does'benefit to a business with whichhe is associated' include a benefitto a client of the public servant'slaw firm? Does this benefit includepotential sharing of fees which an­other attorney in the firm may earnfrom prospective business with anexisting client as a result of the en­actment?

'We have no quarrel with a re­quirement that a legislator who isa member of a profession disclosethat he or his firm has a client orclients with an interest in the pas­sage, defeat or amendment of aparticular bill if the legislator,through the professional associa­tion, may receive a financial bene­fit. We are concerned, however,that a requirement of a more spe­cific disclosure of 'the nature of thepotential conflict' may cause thelegislator/lawyer to violate Rule1.6 of the Rules of ProfessionalConduct governing the conduct ofall attorneys who practice law inthe state of Arkansas. This ruleprovides that with certain excep­tions not applicable to this issue, a'lawyer shall not reveal informa­tion relating to representation of aclient unless the client consents af­ter consultation, except for dis­closures that are impliedly author­ized in order to carry out the repre­sentation.' The Code of Profession­al Conduct of the American Insti­tute of Certified Public Account­ants similarly provides that withcertain exceptions not applicableto this issue, a 'member shall notdisclose any confidential informa­tion obtained in the course of aprofessional engagement exceptwith the consent of a client.' (Rule301.)

"We recommend that section1(h)(1) and 1(i)(1) be amended toclarify that these requirementsshall not obligate the public ser­vant and the state legislator to vio-

late a code of ethics or profession­al responsibility with which hemust comply in the practice of hisprofession.

"It has been suggested at ameeting of the Ethics Commissionthat a violation of this professionalstandard can be avoided by ad­vance consent by the client to adisclosure. First, this presupposesthat at the lime of the engagementor before substantial serviceshave been performed by a legisla­tor/lawyer or by attorneys in thesome firm, they know in advanceof all legislation which may beproposed. An attorney in a firmwith a legislatornawyer could besubstantially involved in a repre­sentation of a client on a matter re­quiring confidentiality well in ad­vance of a legislative session orbefore a bill has been introducedwhich would be beneficial or detri­mental to the interest of that clientand thus to the compensation ofthe attorney, Secondly. if onlylegislatornawyers and attorneysin their firms are required to ob­tain waivers of confidentialitybefore their engagement onmatters which possibly could bethe subject of legislation, they willbe prejudiced in the marketplaceand thereby be further discour­aged from public service.

"Finally. if the client will not con­sent to the disclosure. the legisla­tornawyer is in the untenable posi­tion of the firm withdrawing mid­stream from representation of theclient, violating the Rules of Pro­fessional Conduct, resigning fromthe legislature or facing criminalsanctions under this proposedcode.

"3. Chapter V, section l(I), prohi­bits a public servant other than alegislator from seeking employ­ment with a business which is reg­ulated or subject to control by agovernmental body which heserves. This would require thepublic servant to resign beforemaking any job application. Sec­tion l(c) prohibits not only a formerpublic servant but also his employ­er from providing assistance orappearing in connection with aspecific matter in which the formerpublic servant personally andsubstantially participated duringthe public employment. Thisprohibition applies for a period ofone year following the terminationof public service of the public ser-

van!.'We concur with the comments of

James Hamilton who testifiedbefore the Commission on October28, 1987, that these restrictions aretoo onerous and 'could greatly hin­der the ability of a public servantto find private employment, partic­ularly one who has had wide-rang­ing government experience andhas been responsible for manymatters.' We are convinced thatthese restrictions would causewell-qualified professionals ­lawyers. accountants, engineers- to avoid public service.

"Rule 1.11 of the Rules of Profes­sional Conduct restricts the repre­sentation by a former governmentemployee concerning a matter inwhich he participated personallyand substantially and the prohibi­tion is not limited to one year. ThisRule does not apply to other law­yers in a firm with the former gov­ernment employee, however, if thedisqualified lawyer is screenedfrom participation and written no­tice is given to the appropriategovernment agency. We believethe codification in the proposedethics code of Rule 1.11 will amplyprotect the public interest inpreventing a lawyer or other pro­fessional from exploiting publicoffice for the advantage of a pri­vate client without unnecessarilyhindering his ability to obtainprivate employment after publicservice. H

The Commission subsequentlyvoted:

• to adopt the Association's recom­mendations concerning successivegovernment and private employment;

• to delete the requirement thatlegislatorllawyers disclose the"nature" of a conflict by attorneys intheir firms; and

• to eliminate the prohibition uponan appearance before governmentagencies by attorneys in a firm withlegislatornawyers and only to restrictthe practice of legislatorllawyers toappearances in adversarial proceed·ings w here there will be a record of theproceedings. 0

FOOTNOTE

IEmployees of accounting firms with a legisla·lor/accountant would similarly be borred fromrepresenting a client before the Revenue Divi­sion or the Sales and Use Tax Section 01 theDepartment.

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LAW. LITERATURE& LAUGHTER

Words, it seems, are often createdin unforeseeable ways, This is soeven in the world of law and poli­tics. For instance, law enforcementpersonnel the world over know whatit means to "do Miranda" or be"Mirandized." Lawyers and lawstudents speak ever so casuallyabout "Brandeis briefs."

Last fall. in conjunction with theSenate hearings on Reagan'sSupreme Court nominee, a senatorsuggested that "Bork" become aword, meaning to defame by innu­endo. CBS newsman Charles Oz­good had some fun with this con­cept.

These source allusions are inten­ded to keep me from being "Bid­ened" (excoriated for casualplagiarism), for I have run across adecision that cries out to have partof its style become a legitimateword.

In Fuddruckers. Inc. v. Doc's B.R.Others. Inc.. 826 F. 2d Adv. Sh. 837(9th Cir. Aug. 24, 1987), the Court rec­ognized that decor of premises andmethod of business may constituteprotectable "trade dress" under theLanham Act. Traveled readers willrecognize Fuddruckers as a chain oftrendy hamburger places en­trenched in southwestern Yuppie­dom. Based on what Doc's was al­leged to have done, I hereby pro­pose for the English language theverb "to Fuddrucker," meaning tocopy an establishment's trade dresswith intent to profit.

This proposal will undoubtedlyevoke many useful derivations ­gerunds, participles, adjectives,etc. Given the legal origin, this lineof words will crop up first and mostfrequently in court documents and,of course, the news media.

Plaintiffs' attorneys will pleadgenerally that their clients were

a/Arkansas Lawyer/January 1988

By Vic Fleming

Fuddruckered, that a defendantcommitted the offense (unknown atcommon law) of Fuddruckering. Inresponse to interrogatories, theywill particularize the details of thealleged Fuddruckerization. Theywill seek cease and desist orders tocompel an offending party to deFud­druckerate all premises in ques­tion.

A repeat offender will be called aFuddruck kind of guy. Newspaperswill report that he reFuddruckered.

An organized movement to stopoffenders will be called anti-Fud­druckers. Folks who feel Fud­druckering should be legalized willunite as counter-Fuddruckers.

As society comes to embrace theconcept, offenders will flee publicscrutiny. There will be UndergroundFuddruckerdom, full of clandestineFuddruckerites. Mothers AgainstFuddruckers will hold periodicnews conferences to denounce of­fenders. Those vowing to go straightwill join Fuddruckers Anonymous.

Medical science will get in­volved, announcing various dis­orders and treatments: Fuddrucker­ism - the irresistible urge to makemoney by copying another's tradedress; bi-polar Fuddruck syndrome- tendency to copy others' tradedress without realizing it; andFuddruckaphobia - irrational fearof being Fuddruckered.

Fuddrucker therapy fads will bethe rage of the nation in the '90s.Many will make millions frompaperbacks, such as "How to StopFuddruckering without Really Try­ing," "Three Easy Steps to aFuddruck-free Family Life," "TheAnti-Fuddrucker's Guide to WeightLoss During Menopause" and "RealFuddruckers Don't Eat Steak­burgers."

Sometime in the early 2000s, prob­ably under a Republican president,a special Fuddrucker Commissionwill be appointed to study theproblems associated with inter­planetary Fuddruckery. This Com­mission will firmly entrenchFuddruckering in the annals of thebureaucracy, rising to become acabinet level department by the endof the 22nd Century.

Then again, maybe not. 0

Copyright © 1987 by Vic Fleming

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January 1988/Arkansas Lawyer/ll

T•

"There is not going to be in

this firm a permanent

underclass of minority

attorneys who are perpetual

associates. I just don't see

that as a realistic

progression or experience

that this firm is going to

have, There is no sense in a

dead end where you just

park and stay:'

Allan Gates

Mitchell Law Firm

o be on the cutting edge ofchanging the racialmakeup of major lawfirms in Arkansas is nosmall task, but WendellGriffen, Cynthia Davisand Jerry Malone are upto the challenge. They are

among the first black attorneys to behired by three of the largest andmost prestigious firms in Arkansasand they are young, bright and ea­ger to prove their professionalworth.

• Wendell L. Griffen, a native ofDelight. graduated from the Univer­sity of Arkansas School of Law, Fay­etteville in 1979. Before attendinglaw school he served as an officer inthe United States Army. A formerchair of the state Workers' Compen­sation Commission, he's now apartner in the firm of Wright,Lindsey and Jennings in Little Rock.

• Cynthia J. Davis calls HotSprings home. She received her lawdegree from the University of Arkan­sas at Little Rock School of Law in1985, where she was a RockefellerScholar. Davis was the first black toclerk for the Mitchell Law Firm in Lit-

Wendell Griffen"I've got to balance• two things - my

abilities as alawyer and mypersonhood as ablack person."

l2lArkansas Lawyer/January 1988

tle Rock and was offered an associ­ate's position there before gradua­tion. She now works in the firm'sgeneral litigation division.

• Jerry L. Malone, the son of asharecropper and a native of Earle,is a 1985 graduate of the UALRSchool of Law, where he ranked fifthin his class. He was also a Rockefel­ler Scholar and was managing edi­tor of the UALR Law Journal duringhis third year. Malone was the firstblack to clerk for the Friday, El­dredge and Clark law firm in LittleRock, where he is now an associatemember.

These individuals are proof thatArkansas law firms are lowering thecolor barrier, despite a waning civilrights' movement and dying publicsupport for affirmative action goalsor quotas.

Malone describes the Fridayfirm's philosophy this way: "If a per­son can be profitable, I think thecolor of his skin should not make adifference when giving that personan opportunity as long as that per­son can do what the others do. TheFriday firm has the idea that itwants to be full service. To do thatyou have to have people who arediversified in their views. To havepeople who are all alike - of onepersuasion - is going to limit youin your outlook and in your perspec­tive on things. Bringing in peoplewith different backgrounds willhelp the firm to be full service."

Griffen, Davis and Malone battlea small and narrow view held bysome in the black community that ablack attorney working in a predom­inantly white firm is a turncoat.

"At one time, I took that kind of re­action very painfully and personal­ly. I've come to conclude that thosefolks live with a disability that I can­not cure," Griffen said. On thereverse side, he finds a lot of accep­tance and pride. "A lot of blacklawyers are just proud that one of usis showing the whole legal worldthat we are as good as anybodyelse:' he said.

Davis and Malone share similarexperiences and try to avoid wear­ing two hats. "I try to make the per­son that I am fit into both worlds. Iam not ashamed that I am black andI don't try to tum into a grey personor a white person," Davis said. InMalone's words: ''You don't have togive up your blackness."

Griffen adds: "I have to be honest.

intellectually and socially, with my­self. I am a partner in one of the big­gest law firms in the state. The ma­jority of my partners have culturalbackgrounds that are functionallyand fundamentally different frommine. They may be tolerant of. re­ceptive to and sensitive about thesocial and cullural issues that I re­late to as a black person, but theydon't have to be. I live with it. Theyare not options for me to contemplateAnd I live with those issues as amember of this law firm, recogniz­ing that those issues cannot dictatemy life. I've got to balance those twothings - my abilities as a lawyerand my personhood as a black per-son."

Allan Gates, of Little Rock, awhite attorney and a senior partnerin the Mitchell Law Firm, believesGriffen, Davis and Malone repre­sent a trend in hiring in Arkansaslaw firms which will grow.

'1 think there is no doubt that youwill see more minority attorneys inUttle Rock firms. I think ultimatelyyou will see them everywhere." hesaid. He explained that it's mainly afunction of numbers - a firm in Lit­tle Rock with 50 attorneys is going tohire more people faster than firms inother cities and towns with 15 attor­neys on staff. "Qualified black lawgraduates are going to be attractedto the larger cities for larger sala­ries and for what they perceive is agreater opportunity at acceptanceand advancement." he said.

Gates also sees partnerships byblacks in white law firms as a grow­ing reality.

"There is not going to be in thisfirm a permanent underclass of mi­nority attorneys who are perpetualassociates. I just don't see that as arealistic progression or experiencethat this firm is going to have. Thereis no sense in a dead end where youjust park and stay," Gates said.

William Clark, of Little Rock, awhite attorney and senior partner inthe Friday firm, agrees. 'We haven'thad too many experiences wherewe failed to make an associate apartner." he said.

According to Bruce Cross, of LittleRock, a white partner in the House,Wallace and Jewell law firm, part­nerships are also a reality for blackassociates in the House firm. "Iknow a few years ago, the samequestion was being asked of usabout female attorneys. Partner-

...,.,,""""~

Cynthia Davis"I try to make the• person that I am

fit into bothworlds."

/

/Jerry Malone

"Bringing in• people with

differentbackgroundswill help thefirtJl ~ fllilservice:'

lanuary 19881Arkansas Lawyerll3

by some of the same folks who havebeen holding it up:' Griffen said. Hebelieves that aggressive recruit­ment of black lawyers and lawstudents will aid in the removal ofthe color barrier.

"My complaint about black law­yers and white lawyers in Arkansasis that we basically orbit eachother," he said. Griffen said that at­tendance by black lawyers at the Ar­kansas Bar Association's annualmeeting is minimal at best and thatmost of the local bar associations donot aggressively recruit blackmembers. Griffen adds that remov­ing the color barrier will take a co­operative effort. "U Wright. Lindseyand Jennings had not wanted to in­tegrate this law firm, I would not sithere. On the other hand, if I had notpersevered and applied myself, Iwould not sit here. So, there has tobe a combined effort on the part ofblack law graduates and the whitefirms if there is to be a change. With­out it, there will not be a change. It'sjust that simple:' he said.

With competent attorneys likeGriffen, Davis and Malone in thelegal marketplace, the major lawfirms in the state will have manychances to employ black attorneys.By doing so, the law firms will profitand the nation will see thatArkansas' law firms are aggres­sively lowering the color barrier tomake the state "a land of opportu­nity" for all its lawyers. 0

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ships for black attorneys and forwomen are a reality as far as I amconcerned and as far as everyshareholder I know is concerned:'Cross, who heads the firm's Recruit­ment Committee, said.

Being a trendsetter requires a re­alistic approach, said Griffen. Hewas made a partner in the Wright.Lindsey and Jennings firm in De­cember 1983, four and one-halfyears after he joined the firm. "Firstof all, you must realize that you aregoing to be a part of some socialpioneering and when you're pio­neering, you're going to have toclear some underbrush," Griffensaid.

Clark points to an event which oc­curred about six months ago. One ofthe Friday firm's clients took Maloneand another of the firm's young at­torneys to lunch. The client's topmanagement was there and compli­mented Malone and the other attor­ney very highly and presented themwith a gift. it was extremely gratify­ing to see that sort of thing," Clarksaid. "Personally, I have never hadany misgivings about the feelingsof a client with respect to a blacklawyer. Perhaps there are some butnone have come to my attention. Idon't believe it makes any differ­ence whether you're white or blackbecause the ordinary person inseeking counsel is looking for thebest person they can find under thecircumstances. U Jerry Malone hasbuilt that reputation and they'resent to him, they won't care whetherhe's black or white," he said.

The color barrier hasn't com­pletely fallen in Arkansas law firms.However, the recognition by the barthat it should be removed and anhonest attempt on the part of somelaw firms to do just that are makinggreat strides toward its elimination.

"The barrier will not fall of its ownweight. It will have to be removed

G.A. Tomlinson P.E.

Phase I

Automating the Law OfficeResponses to a recent survey of Arkansas Bar Asso­

ciation members reflect a desire for articles in The Ar­kansas Lawyer related to automating the law oUice.This article. in keeping with that desire. is a shortprimer on ways to increase the productivity of the law­yer: what is out there. what can be done and why itneeds to be done. While this article concerns onlycomputers and software. a second article...Automat­ing the Law Office: Phase 2:' will review other areas oftechnology.

'--..... ; •...

I n these tough times. thoselawyers who can provide

a client with a better workproduct and who can pro­vide it quicker and withless out-of-pocket cost thanothers are going to be thesurvivors. Numerous sturl­ies by the American Bar As­sociation and various statebar associations with re­gard to the size and produc­tivity of the "average law­yer" indicate that mostlawyers in the UnitedStates today practice in small firms.with 70 percent practicing in firms offive or fewer lawyers. Until recently.word processing was considered rela­tively expensive and a cost they simplycould not afford or justify. With techno·logical advances and the reduced costof obtaining such equipment. lawyersare beginning to understand thetremendous potential of "computeri­zation,"

BUYING THE EQUIPMENTWord processing

Five years ago, the cost of a singlededicated word processing systemranged from $12,000 to $20.000. Todaythat same function can be performedby a $2,000 micro-computer. Word

".

-..'-~.. ;"f ;,

processing programs are usually theeasiest to learn and the first mostlawyers purchase in order to increasetheir productivity. Word processingcan create a document quickly, correctmistakes, replace old phrases withnew and delete. copy and move blocksof text. It can also oUer many advan­tages over typing, including:

• Higher quality: The time spent onre-typing can be devoted to think­ing and clarification. The result isa better final product for the client.

• Faster revision: Because only thenew material is typed and thecomputer and printer reproducethe rest. the entire revised docu­ment can be printed faster thanmost people can type a few pages.

• Better looking final cop­ies: Because the printerdoes the re-typing, mar­gins can be changed,ti ties can be addedhere and there andlayouts can be fixedwhile retaining a fresh.well·formatted andprofessional lookingdocument.Forms and clauses which

are commonly used by law­yers can be saved on com­puter disks where minorrevisions to names, dates,etc., are easily made.Also. phrases and clausescan be pulled out and in­serted into individual docu­ments without needing tobe re-typed.

Word processing pro­grams are available toquickly check the spelling,grammar and punctuationof a document. Some pro­grams even prompt an at­torney with questions oroptions which expedite theproduction of documents

and pleadings. Word processing alsomakes work more interesting and thepeople using it more productive, espe­cially secretaries and administrativeassistants who are relieved of a lot of"grunt" typing.

Accounting/time and billing softwareStudies by the American Bar Associ­

ation's Economics of Law Practice Sec­tion indicate that after word pro­cessing, the next most frequently usedsoftware program is a "time and bill­ing package."

Increasingly. sophisticated clientswant more information when billed forservices. including which lawyerperformed the service. how much timewas involved and what the billing

By Charles A. Morgan

.:', ., '. ',' :',' ~ :.~~~ ".,

' ..

CommunicationsThere are a number of

commercially availabledatabases which offer awealth 01 information bymerely dialing a tele­phone number and reach­ing some remote comput­er. The cost of using theseexternal databases canbe as high as $150 perhour or as little as $6 per

hour. depending on the type 01 inlor­mation sought. To tap into thesedatabases you need a computer, acommunications software programand a modem,

A modem is nothing more than apiece of equipment that connects onecomputer via telephone with anothercomputer. converting the signals to a

Integrated softwareA recent study indicates that the av­

erage computer user can successfullyuse and master three different comput­er programs. The computer user whoseknowledge is above average or ad­vanced and who is willing to devote asubstantial amount of time to learningcan master five programs successful­ly. Software developers. appreciativeof these limitations. are developingprograms that have multifunctions ­combined database. spreadsheet,word processing and communicationsprograms - to permit the user to moveinformation from one application tothe other without having to re-key or

re-type it.One alternative to pur-

chasing integra1ed (multi­function) software is topurchase a program thatallows the user to importand export data in a num­ber of standard formats,By having programs thatinput or print out data inone of these formats. theinformation from a data­base program or a spread­sheet program can beused in a totally unrelatedword processing programwithout needing to re-keythe data.

• Faster access: The informationneeded. can quickly be found with­out looking through every record.

• Easier to update: Current informa­tion can be added. old informationdeleted and mistakes correctedwithout having to shuJfle records.

• Offers quicker sorting: A databasecan be arranged in any manner, Itcan be alphabetized by last nameor sorted numerically. i.e.. forfinding adverse parties listed al­phabetically between November23. 1986. and January 17. 1987.

• Flexibility: The information can bedisplayed in any format.

A database lets the user easily pick

and choose information on each recordand allows that information to beprinted quickly and easily. Databasescan be used by attorneys for docketcontrol. library and resource files,mailing lists. mailing labels. client listmaintenance. work product retrieval.litigation support and for hundreds ofother uses.

Database programsA database program or application

is one that helps organize. update andreport on whatever information mightordinarily be kept in lists or on filecards. Compared to a shoe box lull ofindex cards or to slips of paper. a data­base program offers these advan­tages:

rates were for the lawyers. associatesor paralegals furnishing the service.The time and billing software pro­grams offer not only the ability to gen­erate statements. but. just as import­antly. the ability to review on a month­ly. quarterly or annual basis a greatdeal of management information. Forexample. the information that is"typed" for billing purposes can be in­tegrated into a general ledger pro­gram. without the need for re-keyingthe information. and used to preparemonthly profit and loss statements.Reports can also be generated whichwill indicate the most productiveareas of practice. This type of manage­ment information is im-portant and will becomeincreasingly more impor­tant for those lawyers whointend to practice profit­ably.

To assist lawyers inevaluating the varioussoftware programs avail­able. the Economics ofLaw Practice Section hasestablished the Lawyer'sTechnical Advisory Com­mittee (LTAC). The eval­uations of various soft­ware products can beobtained from LTAC for anominal charge. savingattorneys thousands ofdollars in time and inproducts which don'tdeliver as promised. LTACusers are cautioned toconfirm that the version ofthe software they are con­sidering purchasing is thesame version which wastested and approved byLTAC.

Lawyers who can provide a client with a better workproduct and who can provide it quicker and with lessout-ol-pocket cost than others are going to be thesurvivors.

I6IArkansas Lawyer/january 1986

form that can be received and trans­mitted by a telephone line. The indus­try standard is the modem manufac­tured by Hayes. Any modem purchasedshould be Hayes compatible andshould operate at a minimum of 1200baud - bits - per second. Newermodems coming on the market cantransfer data at twice thatrate but they cost about SOpercent more. Also. manyremote databases will notyet accept this speed.

J. Harris Morgan. a solopractitioner in Greenville.Texas. has been very activein encouraging lawyers topractice economically.Harris has often stated thatthe modem has given himthe ability to research andcompete with the largestlaw firms anywhere in thecountry. The ability to dothis research requires acertain expertise that canonly be obtained throughactual. "hands-on" experi­ence.

When buying a communications pro­gram. make sure it can be adjusted tothe communications speed and theprotocols - format - in which the datawill be sent. Different computers usedillerent formats or protocols to sendand receive data. A communicationsprogram can adjust the speed or theway in which the da1a is transferred.

Spreadsheet programsThe next type of software to be con­

sidered is a spreadsheet program.Think of a spreadsheet as a large elec­tronic worksheet that can have asmany as 250 columns and as many as10.0CJ0 rows of facts. numbers, names,fractions or any label or value to besorted. computed or identified.Spreadsheets permit the user to workwith extremely complex numbers orfractions and will automatically calcu­late the totals in the columns and/orrows specified. Here are a few of theadvantages of the electronic version ofa spreadsheet:

• Easy correction and update: Thereis no need to use up V2 mile of cal-

culator tape to get the wrong an­swer. Changing or addingnumbers and fonnulas is simply amatter of re-keying the changes oradditions and letting the programtake care of the rest.

• Try the "what if" approach: Be­cause the spreadsheet can do in a

\

matter of seconds what would nor­mally take hours to do by hand.people have begun to come upwith "what if" figures. Experiment­ing with formulas and numberscan result in a whole new range ofpossibilities.

Electronic spreadsheets can be usedfor budgeting. forecasting. amortiza­tion schedules, present value analysisand hundreds of other applicationswhere calculations must be quick andaccurate. Spreadsheets are especiallyhelpful for the preparation of amortiza­tions that aren't "in the book." Thespreadsheet for an amortizationschedule can be changed so that thepayment amount and the interest ratecan be altered periodically throughoutthe schedule.

Utility programsAfter using a computer long enough

to understand its potential and itslimitations. the user will develop aneed for some companion programsthat are called utilities. The utility pro­grams enable the user to transfer files

and disks and make duplicate andback-up copies. II something happensto the primary source of informationand a back-up copy has been made.the information itself has not been lost.Utilities can also be used to restorefiles from disks that have been dam­aged so that the files can be used

again.Utility programs allow

the user to change the for­mat from one operating sys­tem to another - IBM toMacintosh. Macintosh toApple. Apple DOS toProDos. CPM to Pascal. Toavoid going through themechanics of convertingforms or data. there arecommercial services thatwill convert this data for afee. This cost can be expen­sive. but it is still generallycheaper than the expenseof re-typing the data. Re­member. labor is the largestsingle cost of operating youroffice.

WHAT'S OUT THERE?Electronic mail

Electronic mail is the ability to trans­fer electronic messages. documents.letters, international cables. etc., fromone office to another anywhere in theworld by telephone. Transfer by elec­tronic mail is analogous to a FAX ma­chine except that it bas the ability tocapture the informa1ion in a form thatcan be used instantly by a wordprocessing program without needingto be re-typed.

One electronic mail service is ABA­Net. which is operated and sponsoredby the American Bar Association. Inaddition to combining electronic mailtransfer between lawyers and theirclients, ABANet also provides airlineschedules, news. wires, securities'market information, Lawmart (on-linelegal forms), commercial newsletters.court reporting services. etc.

Legal research servicesThere are three legal research

services available - Westlaw, Lexisand Verilex - whereby case law and in

Five years ago. the cost of a single dedicated wordprocessing system ranged from $12.000 to $20.000. To­day that same function can be performed by a $2.000micro·computer.

January 1988/Arkansas Lawyerl17

some cases statutes can actually beresearched in any jurisdiction locatedwithin the U.S. There are hundreds 01other commercial databases that arealso available to subscribers.

Other prognm...There are programs on the market

that will take care 01 graphics presen­tations. plating. printing. drawing andpreparing exhibits lor trial. Althoughall offices may not require these capa­bilities. if needed. these programs canexpand the ability to produce stun­ningly professional exhibits andgraphics presentations.

THE FUTURE TECHNOLOGYWhere are we headed in the next five

years? It is especially important thatthe solo practitioner or the small lawoffice keep an eye on personal comput­er trends. It is the small firm or solopractitioner that derives - or shouldbe deriving - a greater proportionatebenefit from micro-computerization.

Look for storage capacity to continueincreasing at reduced costs. The S.24"floppy disk will gradually be phasedout in lavor 01 the new 3.S" disk. The

present 3.S" disks have 300 to 500 per­cent more storage capacity than theS.25" disks that were standard in the in­dustry just two years ago. And. newtechnology will permit the 3.S" disk tostore almost S.ooo.ooo bits (five mega­bytes) 01 information by 1990. In addi­tion. hard disk drives that held livemegabytes of information and cost$1500 three years ago are being re­placed by drives that hold 20 mega­bytes and cost less than $800. Withinthree years. 50 megabytes 01 storagewill be available for less than $1000.

The newest storage device of the fu­ture is the Optical disk (CD-ROM disk).By the year 2000. a law lirm's entire li­brary will be able to be contained on 10to IS CD-ROM disks. "Pocket parts" willbe a thing of the past. Book dealers willjust mail an entirely new set of bookson a Single disle.

WHY COMPUTERIZE?There are many reasons to comput­

erize a law office and most of them areeconomic. Some of the more commonreasons to consider computerizing var­ious functions include:

• Increased productivity

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• Increased profitability• Improved accuracy in document

production• More responsive client service• Improved client relations• Less expensive services to clients• Increased ability to deal with com-

petition• Provision of peak load services• Better control of overtime costs• Better decision-makingA lot of reasons are often given as to

why an office should not automate.Lawyers as a group are the most likelyto offer the following "untruths" re­garding computerization:

• The equipment is too complicated. [won't be able to understand it. Thismay have been true a few yearsago. but most equipment and soft­ware have been simplified.. evento the point that a lawyer can useit.

• We are doing okay now. so whychange? Increased competitionwill demand that we are able toproduce more work with the sameor fewer people or that we produceit at lower cost.

• The equipment is too expensive

It is especially importantthalthe solo practitioner orthe small law office keep an eye on personal comput­er trends. It is the small firm or solo practitioner thatderives - or should be deriving - a greater propor­tionate benefit from micro-computerization.

I8IArkansas Lawyer/January 1988

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Our law books and our computer research service are made to mesh with eachother and your needs. Let your LCP representative show you what's possibleand affordable in legal research.

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We must begin today if we are going toremain competent. competitive andproductive.

As J. Harris Morgan repeatedly says,"Begin - and the rest is easy! 0

Editor's Note:Charles A. Morgan, of Texarkana, is

chair of the Arkansas Bar Association'sEconomics of Law Practice Section andis a member of the Smith, Stroud,McClerkin, Dunn & Nutter law firm. Anative of Evansville, Indiana, Morganreceived his undergraduate and J.D.degrees from Baylor University. His con­centrated areas of practice include oiland gas, real estate, commercial andcorporate law. Our thanks to BeverlyBrock, the Smith and Stroud firm's officemanager, for her assistance in prepar­ing this article.

and we can't afford it. Salaries, notequipment. are an office's largestsingle expense. The truth is thatwe cannot afford not to automateour offices.

• We are too small to use that equip­ment. It is in the smaller officesthat we realize the greatest poten­tial for cost savings. The small lawfirm or solo practitioner does nothave the benefit of sharing orspreading many overhead costsover several professionals. Ac­cordingly, they must be able tomaximize their time and theirproductivity.

In June 19B6, the American BarAssociation's Economics of Law Prac­tice Section, in conjunction with theState Bca of Texas, hosted the secondannual INDEX: LEGAL, AUTOMATINGTHE LAW PRACTICE seminar inDallas, Texas, at lnfomart. (The thirdannual seminar will be held there inJanuary 1988. For more information,contact the ABA's Economics of LawPractice Section or the State Bar of Tex­as.) The concluding speaker was J.Harris Morgan. He reminded all parti­cipants that:

Technology is not a goal. Technologyis a tool to be used to reach a goal.

Studies by the American Bar Associ­ation reflect that in the last 20 years at­torneys have experienced a 200 per­cent increase in costs and expenses inrunning their offices, but have onlybeen able to achieve a 50 percent in­crease in profitability/productivity. Ifwe are going to continue to stay com­petitive, we must be productive. To beproductive, we must work faster andmore accurately while not pricing our­selves out of the market. We can nolonger wait to implement this technol·ogy.

Lawyers must understand that therewill always be something newer, fas­ter, cheaper or better in the market. butwaiting for the technology to evolveonly places us farther and fartherbehind. We cannot worry about thenewest state of the art device when wehaven't even begun to understand orimplement the technology that hasbeen available for the last five years.

Salaries. not equipment. are an office's largestsingle expense, The truth is that we cannot afford notto automate our offices,

January 19BB/Arkansas Lawyerll9

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20/Arkansas Lawyer/January 1988

THE ELECTRIC COOPERATIVES OF ARKANSAS

AMAJOR SOURCE OF ENERGYIN ARKANSAS' DEVELOPMENT.

Carl S. WhillockPresident, ArkansasElectric CooperativeCorporation

"Just as you are committed to buildingyour community through professionalleadership, we support your local effortsthrough an active economic developmentdepartment.

"By working together we pledge to makethe next 50 years the greatest in our history.We know the power of cooperation. Becausea cooperative is what we are."

Arkansas Electric Cooperative CorporationP.O. Box 9469/ Little Rock. Arkansas 72219

Developing Arkansas' Resources

aecc

"For a half-centuryyour electric cooperativeshave played a major rolein the development ofArkansas.

"That role has neverbeen more active orimportant than today.With significant powercapacity in coal andhydro generating plants,the cooperatives offer

tremendous incentives to new or expandingbusiness and industry.

"Arkansas' work ethic, natural beauty,Mid-America location and excellent waterand highway transportation make our statemore attractive than ever.

"Today the 62% of the Arkansas landarea served by the electric cooperativescan attract major industry due to long-termpower supply rates. Rural electric powercreates jobs and keeps families together.Now and in the future.

January 1988/Arkansas Lawyer/21

I

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Owen Hunt. "o.r:·221Arkansas Lawyernanuary 1988

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,

Compliments 01 Arkansas ArtislS Registry

"UP AGAINST THE WALL"

George Chambers.Mamoushka & Perot #2

ComplimenlS of A,tolLlO. Arlisls Registry

By Chris Barrier

Okay, close your eyes, Now,tell us what you've got on thewalls in your law office (be­

sides your license and the calendarfrom the abstract company), If you'relucky, maybe a couple of the printsthat go with the duck stamps, andsome mawings by your kids.

If you're unlucky and have a deco­rator (or fumiture store) for a client,maybe some pictures of guys in redcoats on horseback talking aboutfoxes.

If you're real unlucky, and thosekids have become teenagers, may­be you had to frame that BeastieBoys poster they gave you lastChristmas.

Chic ain't cheap ...Or maybe your decorator client

(the one who picked those uncom­fortable chairs) also spent a lot ofyour money and bought some origi­nal art, stuff you don't understand oreven like, but which goes with thecarpet.

It doesn't have to be that way.(Those kids are another issue en­tirely.)

Specifically, there is a way foryou to see what is available frommore than 300 artists living andworking here in Arkansas. You canget some advice thrown in for theprice of the art (which is generally

lanuary 19S5/Arkansas Lawyer/23

pretty reasonable) and also find outsomething about the artist.

In the process, you will also getsome good feelings about the levelof competence and sophisticationachieved by our own Arkansasartists, from highly realistic land­scapes to cutting edge con­structions.

Get yourself registered, , ,The three-year-old Arkansas

Artists Registry is housed in theFine Arts Building at the Universityof Arkansas at Little Rock and hastwo bosic functions: l) to maintainan archival record of the work of Ar­kansas artists; and 2) to promote thesale of the work of those artists.

The Registry is funded by grants;commissions on art sold through theRegistry; fees for specialized ser­vices (such as advice on choosingand hanging art); in-kind donationsof materials and services; and Cor­porate Collectors Circle dues. Thislast category means that, for an an­nual fee, CCC members get a dis­count on art purchased through theRegislIy and other special services.Two law firms belong to the CCC.

Although native crafts certainlyhave their place, that is not theRegistry's focus. Its member artistshave studied all over the countryand abroad, and a number are actu­ally better known (and sold) in majormetropolitan markets than in Ar­kansas.

From Sheridanto Madison Avenue, ..

For example, Metropolitan LifeInsurance Company exhibited acollection of works by Arkansasartists in its Madison Avenue head­quarters last summer. The show,which was put together at Met Life'srequest by Townsend Wolfe, execu­tive director of the Arkansas ArtsCenter, was well-received, not asquaint folk art. but as serious,sophisticated contemporary works.

As Wolfe aptly observed on the oc­casion of that exhibit, "regional art"does not necessarily mean art withan identifiable geographic cast orlook, but merely art produced byartists working in a particular

241Arkansas Lawyernanuary 1988

region. They live and work in Arkan­sas because they want to. The Reg­istry regards them as a natural re­source, to be valued and promotedwithin our own borders.

Likewise, there are not water­colors of daisies and pencil draw­ings of old farms. It isn't possible todescribe what the works of 300 art­ists actually are, but an example isuseful:

A major Little Rock financial insti­tution hired a big name national ar­chitectural firm to design its head­quarters. But. the monumental art­work they commissioned for theirlobby was by an Arkansas artist. awork fully as sophisticated as thebuilding.

The Registry sponsors art showsstatewide. The Small Works onPaper Exhibit will tour the state be­ginning in January at ArkansasState University in Jonesboro. Otherlocations include Batesville, Rus­sellville, Fayetteville, Pine Bluff,Conway and Little Rock. Watch yournewspaper for your local times andlocation.

Central Arkansas had The AARtShow on November 9-30 at WorthenBank. If you missed that, the 12pieces selected as Best of Show willbe on display at the Little Rock Air­port in January.

The regislIy is exploring coopera­tive arrangements with art galleriesin the state, so that slides of worksby Registry artists can be obtainedthrough local galleries and theworks discussed with the galleryowner.

What art galleries, you say? Arethere any, outside Little Rock andmaybe Eureka Springs? Of course,there are. Just last fall, a gallery inSheridan (population less than4,OCXl) put on a show with works byseveral dozen of the state's mostprominent artists, most of whomwere RegislIy artists (and several ofwhom were also in the Met Life ex­hibit).

Slide into art , , ,Anyone interested in working

through the Registry to buy originalArkansas art can drop by its officeand look through its slides, with the

help of a staff person.Given some advance notice as to

what sorts of art you are interestedin, the staff can focus your slide­viewing time on just those sorts ­such as landscapes, watercolors,abstract works, etchings orceramics - or even on artists jnyour area.

(By the way, the artists aren't all inLittle Rock or Eureka Springs either.The art departments of virtually allof our colleges have importantartists on their faculties.)

The staff also will help witharrangements for you to see theworks themselves, possibly even inyour own office. But. you are neverobligated or pressured to buy any­thing. And you know the askingprice of each piece at the time yousee the slides. lf there is enough in­terest, the Registry plans to bringslides and some works to the Arkan­sas Bar Association's Annual Meet­ing in June.

Next time you're scheduled to bein Little Rock and have a little extratime, plan on dropping by the Regis­try, on the north end of UALR's cam­pus. Call Jayme Tull or Judy Hayesat the RegislIy (569-3288) ahead oftime and they will send you a bro­chure on the Registry and havesome slides ready for you. (Theyalso usually have some originalworks on hand as well.)

And if you're interested in havingthe same opportunity at the AnnualMeeting, give them a call, or dropthem a line at:

The Arkansas Artists RegistryUALR College of Fine Arts2801 S. University AvenueLittle Rock, AR 72204

You might even want to bring thatdecorator along with you . . . 0

Editor's Note:Chris Barrier, of Little Rock, is a

member of the Mitchell, Williams,Selig and Tucker law firm. He serveson the Executive Committee of theArkansas Bar Association's FinancialInstitutions Law Section and is a fre­quent contributor of both art and fea­tures to The Arkansas Lawyer.

1

u.s. Pon.1 Se,..,.lc:.

STATEMENT OF OWNERSHIIJMANAGEMENT AND CIRCULATIONR~qlJi,r by 39 U.S.C. 168j)

IA. TITLE OF PUBLICATION 18. PUBLICATION NO. 2. DATE OF FILING

The Arkansas Lawyer514161-101410 9-24-87

3. FREQUENCY OF ISSUE 3A. NO. OF ISSUES PUBLISHED 38. ANNUAL SUBSCRIPTIONANNUALl.Y PRICE

Quarterly4 $15.00.. COMPLETE MAl LING ADDRESS OF KNOWN OFFice OF PUBLICATION (S"~rt. City, COUtu)'. StlH~ "ltd ZIP Codt} (Nor prilltt")

400 w. Markham St.Little Rock, Ar 72201 Pulaski County

s. COMPLETE MAILING ADDRESS OF THE HEAOQUARTERS OF GENERAL BUSINESS OFFICES OF THE PUBLISHER (Not pri"m)

Same as above

6. FULL NAMES AND COMPLETE MAILING ADDRESS OF PUBLISHER, EDITOA, AND MANAGING EDITOR (ThiJ ittm MUST NOTbt blank)

PUBLISHER (Namt and Comp/tlt MailiflK Address)

Arkansas Bar Association400 w. Markham St. , Little Rock, Ar 72201

EDITOR (Nllm~ lind Compf~t~Mllilinl Add,~ss)

Ruth Williams400 w. Markham St. , Little Rock, Ar 72201

MANAGING EOITOR (Nllmt lind Compl~t~ /tflliUftI Add'~u)

Ruth Williams400 w. Markham St. , Little Rock, Ar 72201

7. OWNER (1Io_~d by _ cOrpO","Ofl, its fllI,"t _ltd IIdd,qs mllst M s,.r~d lind _tso Immtd;'ttfy rhuallld~rrht RlJm.... _nd add'.....,.... olll«tholdtrso_{nl or holdi"l J pttr:~n' or mort 01 totlll_m","" 01"«". lIn", o_~d by _ corporaf'ion. 'h~ RlJmn _nd add,ess..., of'h~ Individllal Olom~rs mllnb~ rfltt"- II owned ,'y _ pllttn"rship 0' orht, IIninco",,,,,,Ud firm, its n.m~ lind Mld,us, u ""dIu that 01 ~tN'~ indlvidllil' mllst bt rf"tn. If th" pllblica·tion is pllbllsh~d b, • nonprofit 0"llln;III(IOII, i,s nllm~ lind ildd,,," mllst b~ stll'ed.) (1,,,1'11 1'1111.1' be comp/ettd.)

FULL NAME COMPLETE MAILING ADDRESS

~L~Q"QQQ t>ar '-LV.. dnn W M.r.h.m ".r.iHl .. Rn"k Ar 72201

'VVLU"CQL~ VL~Q"'"

•• KNOWN BONDHOLDERS. MORTGAGEES, AND OTHER SECURITY HOLDERS OWNING OR HOLDING 1 PERCENT OR MORE OF TOTALAMOUNT OF BONOS, MORTGAGES OR OTHER SECURITIES (JI th,,'" a,e none. so ItIlU)

FULL NAME COMPLETE MAILING ADDRESS

.""''''

•• FOR COMPLETION BY NONPROFIT ORGANIZATIONS AUTHORIZED Ttl MAIL AT SPECIAL RATES ($«,"'n 421.12 DHHonly)The purpou, function,.nd nonp,ofit stalus of thIS or~n,ution.nd th' exempt Itltus for Fed.".1 inOOlTMlt.x purposes (Otte" Otl~)

111 1216UI HAS NOT CHANGED DURING o HAS CHANGED DURING (1Ie~ns~d, pllbllshu mlUt submlr ~xplllnlltion01PRECEDING 12 MONTHS PRECEDING 12 MONTHS chll"l~ with tills srIlUm~n',)

'0. AVERAGE NO. COPIES EACH ACTUAL NO. COPIES OF SINGLEEXTENT AND NATURE OF CIACULATION ISSUE DURING PRECEOING ISSUE PUBLISHED NEAREST TO

12 MONTHS FILING DATE

A. TOTAL NO. COPIES (Ntt Prtl1 Rlln) 3750 3900

•• PAID CIRCULATION1. Sel" through dlallrs ,nd carriers. streel vendors 'tid counler ...Ies -0- -0-

2. Mail Subscripliotl3528 3710

C. TOTAL PAlO CIACULATION (Slim of lOBI lind IOB1) 3528 3710D. FREE DISTRIBUTION BY MAIL. CARRIER OR OTHER MEANS

SAMPLES, COMPLIMENTARY, AND OTHER FREE COPIES 6 6

E. TOTAL DISTRIBUTION (Slim olCll1td O)3534 3714

F, COPIES NOT DISTRIBUTED1. Office ule,left over, unKCOUnteG. spoiled .her Pfinting 216 186

2. Return from News Agenls-0- -0-

G. TOTAL (Slim of E. Flllnd 1-should "qllll/ nn P'''SS"1n ,ho","," in A)3750 3900

11.I certify that the statements made by i) SI~UREAND TITLE OF EDITOR, PUBLISHER. BUSINESS MANAGER, OR OWNER

me above are correct and complete jrH.,0~ ~~

January 19881Arkansas Lawyer125

mE DEVELOPING LAW

Sales of a Remainder InterestSplit the fee, help a friend and save

a client

By George N. Plastirasand Philip Miron

The minute Bob hung upthe phone, he knew some­thing wasn't quite right.

It wasn't like Frank to in­vite him to dinner, makingit clear that it was Frankwho would pick up the tab.Frank hadn't offered to dothat since Bob tutored himthrough income tax in lawschool.

When Bob saw him at thetable, he definitely knewsomething was botheringhim.

Bob: "Is the practice oflaw getting to you?"

Frank: "Yeah, you mightsay that. In fact, you don'tknow how close to the truthyou cae."

Bob: "Maybe I could takea few clients off yourhands?"

Frank: "I wish I had themto spare, you know ..."

Bob: "Please, Frank. What's theproblem?"

Frank: "It's a long story,"Bob: 'Tve got all night and the

meter stopped at 5:00 this evening."Frank: "Bob, do you remember the

Jones estate?"Bob: "Isn't that the one in which I

advised you to set up the credit shel­ter trust and transfer jointly heldproperty into Mrs, Jones' name only?Didn't Mr, Jones pass away a fewyears ago? And, didn't he have acouple of children who were givingyou a rough time?"

26/Arkansas Lawyer/January 1988

Frank: "Yeah, that's the one."

Bob: "Why? What's the matter?With the unified credit and maritaldeduction, Mr, Jones' estate shouldhave paid no estate tax and passed$600,000 tax-free to the children,"

Frank: ..It's not Mr. Jones that's theproblem. We've already filed the es­tate return and closed the estate, It'sMrs. Jones and her children who aregiving me the headache, In fact, thewhole family seems pretty dissatis­fied. Oh, we saved taxes on Mr.

Jones' estate, but on Mrs.Jones' death, her estatewill pay Uncle Sam hisshare,"

Bob: "Remember the uni­fied credit? You shouldsave another $600,000, To­gether you've sheltered$1.200,000. What is theproblem?"

Frank: "That's not muchconsolation on a $5,000,000estate. [ figure if we'relucky we might pay$2,000,000 in estate tax andthat's with no asset appre­ciation! I can't even makegifts fast enough to keepthe estate from doubling in12 years! The family is con­sidering changing law­yers. After all I've done!Can you imagine?"

Bob: 'What kind of prop"erty is in the estate?"

Frank: "Bonds and realestate, mostly."

Bob: "Income producing or un­productive land?"

Frank: "Both."Bob: 'Tve got an idea. Let's split

the fee!"Frank: "Bob, I don't think you un­

derstand, There will be no fee if Ican't come up with a plan,"

Bob: "What? No, no, Frank. I'mtalking about dividing the propertyinto two bundles of interest; a lileestate and a remainder interest.You remember those concepts fromthe property course, don't you? Mrs.

Jones could sell the remainder inter­est to the children or to a trust fortheir benefit."

Frank: "Sounds like future inter­ests to me. Bob, don't you remember Ialmost had to repeat our propertycourse because of future interests?"

Bob: "Don't worry. Except for a fewpotential tax problems, it's simple.I'm going to help you."

Frank: 'Tm listening."Bob: "You see, Section 2036 of the

Internal Revenue Code providesthat transfers with retained life es­tates are not included in the grossestate where there is a bona fidesale for full and adequate consider­ation received for the property inter­est transferred. This means thatMrs. Jones could sell a remainder in­terest in either the bonds or real es­tate to her children while keepingthe right to income for her life. Sinceher life interest is extinguished ather death, it will not be included inher estate. The result is that Mrs.Jones has eliminated the value ofher life estate from her taxable es­tate.

How do you value a life estate?

First. you must get an appraisal ofthe property. Then, there are actuar­ial tables in the Treasury Regula­tions. Section 20.2031-10. whichshow the value of a life estate andremainder interest based on the ageof the transferor-seller. Use the fac­tor outlined in the IRS table andmultiply it times the fair market val­ue of the property. This should giveyou the selling price of the remain­der interest.

Is this legal?

U you mean does the IRS recog­nize this valuation concept, the an­swer is apparently "yes." The IRShas issued several private letterrulings on this very issue approvingthe valuation method. (PLR 7806001;PLR 7837003; PLR 8041098; PLR8145012).

What if Mrs. Jones is not expected tolive for the entire average life expec­tancy?

Currently, the IRS tables arebased on the life expectancy of theaverage person, with a return on in­vestment of approximately 10 per­cen t. It would not seem fair toequate the remainder interest of aperson with terminal cancer with ahealthy person of the same age; nor

"The remaindersale has manyadvantages,among them

possible reductionof estate taxes , , "

possible incometax write-offs, ..

and the transfer ofproperty outside of

probate."would it appear to be proper to com­pare income producing propertywith non-income producing assets.The federal courts are sometimesreluctant to make these distinc­tions, but these factors certainlyshould be considered in valuing theremainder interest.

Unless Mrs. Jones' death is clearlyimminent. I would suggest usingthe IRS actuarial tables (Rev. Rul.80-80. 1980-1 C.B. 194). Also, in valu­ing non-income producing property,I would make it clear in the pur­chase agreement that the life tenanthas the right to sell the property andreinvest the proceeds in incomeproducing assets.

You can see the beauty of sellinga remainder interest in unproduc­tive real estate because there is noincome during the life of the seller.Since there is no estate build up,there is no need to worry about ap­preciation.

Before selling the remainder in­terest of any asset [ would recom­mend that we project the annual in­come to the life tenant less antici­pated expenditures and gifts. It maybe that Mrs. Jones would not be bet­ter off in selling the remainder inter­est. It simply depends on the assetand the amount of income neces­sary for her to live comfortably andnot feel beholding to her children forher support. Keep in mind, though,that if Mrs. Jones dies before her lifeexpectancy, you have probably

saved estate taxes in any event.

You said that the life tenant andremainderman could agree to cer­tain terms?

That's right. There are severalways the terms could be structured.First. Mrs. Jones could sell a legalremainder interest without anyagreement. which means that shewould be subject to the common lawdecisions concerning the rights ofthe parties. For example, in Arkan­sas a life tenant has a duty to paytaxes on the property (Henderson v.Ellis, 10 Ark. App. 276. 665 S.W. 2nd289 (1984); Magness v. Harris. 80 Ark.583. 98 S,W. 362 (1906)).

Where money or its equivalent isbequeathed for life, only interest orincome can be consumed by the lifetenant unless there are contrarywords of authorization in the will(Chambers v. Williams, 199 Ark. 40.132 S.W. 2nd 654 (1939)), Also, anowner of a life estate in personaltythat cannot be worn au t or con­sumed by use such as money, notesand accounts may not convert thefunds to their own use but mustpreserve the personalty for theremainderman (Dillen v. Fancher,193 Ark. 715. 102 S.W. 2nd 87 (1937)).Depreciation will be allowed to thelife tenant if he is a legal-life tenant.If a trust is used, the allocationspecified in the trust agreement willgovern, or if the agreement is silent.all of the depreciation will be al·lowed to the income beneficiary(lRC § 167(h)),

I would recommend that the rightsof the parties be spelled out at thetime of purchase. You could negoti­ate such things as allocations of de­preciation, the right of the life ten­ant to sell the property and reinvestthe proceeds or who will pay formaintenance and other expenses ofthe property. The terms are limitedonly by your imagination. But re­member, if you are too creative, youmay be promoting val uationproblems.

Another alternate way to struc­ture the sale would be to transfer theproperty in trust whereby a trusteemakes all of the management de­cisions. This would be a good idea ifthe life tenant is incompetent or un­willing to handle such matters. Avariation of this technique would beto transfer the property to a revo­cable trust which could be revokedby either the life tenant or re-

January 19881Arkansas Lawyer/27

mainderman. In the event of revoca­tion. the property would simply be­come a legal interest.

With respect to valuing the re­mainder interest. I must warn youthat there is some movement in thefederal courts toward requiring thepurchaser of a remainder interest topay the full fair market value of theproperty without discounting it forthe seller's life estate (Gradow. 87-1USTC § 13. 711. 1987 P-H 148. 511 (CIsCt. 1987)). You should be aware ofthis problem and closely monitor allfuture cases.

What if the purchaser can't afford theremainder interest? I'm not sure thatMrs. Jones' children could producethe amount of money necessary toimplement this plan.

That is one of the major draw­backs to a remainder sale. If thechildren have their own independ­ent wealth. there is no problem. but99 percent of the time this is not thecase.

There are several ways of financ­ing a purchase. First. you could ex­change a promissory note for the re­mainder interest. The note musthave an adequate stated interestand. as with all sales. must be bonafide. Don't even think aOOut mon­keying around with the interest orpayment or you'll destroy the wholedeal. You may even consider aOOlloon note after a term of yearswith interest payable during theterm. Another way would be to sellthe remainder interest in exchangefor a private annuity. However. thisis not considered a good option be­cause the remainder interest trans­ferred is not income producing. Ifyou really want to be aggressive. trya seIf-cancelling note. That is wherethe note cancels itself at the death ofthe seller and is not includible in theseller's estate. It's very tricky. how­ever.

Does that mean any other type ofpromissory note could be includiblein the life tenant's estate?

Yes. but remember that unless itis a balloon note. the principal bal­ance will be decreasing and. hope­fully. as payments of principal aremade the life tenant may be makingadditional annual gifts or takingtrips around the world to prevent as­set accumulation.

28/Arkansas Lawyerl)anuary 1988

"One negativepoint to the

remainder sale isthat the

remaindermandoes not receive astepped up basisin the property onthe death of the

life tenant./I

Mrs. Jones' children would be furiousover a plan which recommendsspending after the annual gifts.

An estate tax rate of 55 percent is agreat incentive to spend.

What about gifting the money to thechildren to purchase the remainderinterest?

There is a danger is tying gifts toremainder interest purchases. Everhear of the step-transaction doc­trine? The IRS can collapse a seriesof gifts and the purchase into onetransaction: a sale without ade­quate consideration is the same asa gift. i.e.. you have just jeopar­dized your remainder interest salesince it is not a bona fide sale for fulland adequate consideration inmoney or money's worth.

If there is no other way to financethe purchase of the remainder inter­est. I would recommend that yourclient make a gift and wait at leastone year before allowing the chil­dren to purchase the remainder in­terest. It is called the "old and coldmoney rule."

If you really want to get fancy. gift$600.000 to Mrs. Jones' children. thenwait at least a year wld make a jointpurchase of property. i.e .. Mrs.Jones purchases the life estate andher children purchase the remain­der interest.

What's the benefit of this?

The benefit is an additional in­come tax benefit to Mrs. Jones who

will be able to amortize the cost ofher life estate. even if the property isnondepreciable. In other words. shecould purchase any investment typeasset. such as stocks or buildings.and amortize the cost.

There apparently is a distinctionbetween carving out a life estatefrom an existing asset and purchas­ing a life estate (Manufacturer'sHanover Trust vs. Commissioner ofInternal Revenue. 431 F.2d 664(1970)).

Speaking of income tax. what are theincome tax consequences of a re­mainder interest sale?

In general. the seller of a remain­der interest recognizes gain or lossby subtracting the proceeds of salefrom his or her OOsis. Under the in­come tax regulations. the seller'sbasis must be allocated betweenthe remainder interest and the lifeestate. Presumably the sameTreasury tables which are used tovalue the interest may be used to al­locate OOsis.

If the property is sold subsequentto the sale of the remainder interest.the life tenant and the remainder­man will recognize gain to the ex­tent of the difference between theirrespective sales price according tothe Treasury tables mentionedaOOve and their adjusted basis.

Where the life tenant has thepawer of sale over OOth interests(the remainder and life estate) andthe proceeds must be accounted forand preserved for the remainder­man. the gain on the remainder­man's interest will be taxed as if itwere held in trust (Rev. Rul. 61-102.1961-1 C.B. 245).

Under other circumstances. theincome tax consequence to theremainderman can also get verycomplicated.

What about the income tax con­sequences on the death of the lifetenant?

The law appears to be unsettledin this regard. An argument can bemade that upan the death of the lifetenant the receipt of the property bythe remainderman results in therecognition of taxable income(Guthrie v. Cornmr. 42 BTA 696 (1940):Jones v. Commr. 40 TC 249 (1963)remanded for further proceedings.330 F.2d 302 (3rd Cir.. 1964) on re­mand. T.C.M. 1966-136).

One negative point to the remain-

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der sale is that the remaindermandoes not receive a stepped up basisin the property on the death 01 thelife tenant. This potential incometax cost should be estimated in de­termining the total potential sav­ings in the use of a remainder sale.

Consider particularly bands. Thechildren could pay a substantial in­come tax when they mature. Sincethey have purchased only a remain­der interest, the children's basis willbe very low.

In summary. let's just agree thatthe remainder sale has manyadvantages. among them possiblereduction of estate taxes by elimi­nating all or part 01 the transleror'sestate. thereby freezing apprecia­tion 01 the translerred asset; possi­ble income tax write-offs to the liletenant for amortization/deprecia­tion; and the transfer of the propertyoutside of probate. There are still.however, unsettled issues and po­tential risks.

Waiter. two 01 the biggeststeaks in the house. please! And, sethim up a tab since "we split thefee. helped a friend and saved aclient." 0

"There are,however, unsettled

issues andpotential risks inremainder sales."

Editor's Note:George N. Plastiras and Philip

Miron are members of the PlastirasLaw Firm in Little Rock. Plastiras isthe immediate past-chair of the Ar­kansas Bar Association's Economicsof Law Practice Section. He is a boardcertified tax specialist. a fellow inthe American College of ProbateCounsel and a former president ofthe Central Arkansas Estate Council.Miron is a certified public accountantand holds membership in the Ameri­can Institute of Certified Public Ac­countants and the Arkansas StateSociety of Certified Public Accoun­tants.

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January 1988lArkansas Lawyerl29

DISCIPLINARY ACTIONSSeptember to October

The Arkansas Supreme CourtCommittee on Professional Con­duct from September to October1987. issued three letters of repri­mand and six letters of caution. Itsuspended for one year the law li­cense of Bob Scott of North LittleRock and accepted the surrenders oflicense from former federal JudgeHarry E. Claiborne of Las Vegas. anative of McRae. who was im­peached and removed from office inOctober 1986 after being convictedof income tax evasion. and JepthaA. Evans of Booneville. The Com­mittee took no action of a discipli­nary nature on 80 informal com­plaints against attorneys and voted"no action warranted" on six formalcomplaints. In other business, SamSexton. of Fort Smith, in Septemberappealed to the Arkansas SupremeCourt the suspension of his law li­cense by the Committee on August29, 1987. The action of the Commit­tee was stayed pending the appeal.The stay will terminate at the end of30 days if an appeal is not perfected.

BOB SCOTTSuspension of License

Bob Scott. of North Little Rock. hadhis license suspended for one yearon September 2, 1987. by the Com­mittee on Professional Conduct forviolation of Rule 8.4 of the ModelRules of Professional Conduct in­volving misconduct. Scott was hiredto handle post-conviction relief forthe complainant. He received a $500partial retainer on September 10.1984. to represent the complainantand an additional $2.(xx) on Septem­ber 21. 1984. and $2.500 on June 5.1985. The complainant said Scott didno work on his behaU and acceptedan additional $2.500 six months af­ter the statute of limitations hadrun.

HARRY E. CLAIBORNESurrender of License

Former federal Judge Harry E.

3D/Arkansas Lawyernanuary 1988

Claiborne of Las Vegas. formerly ofMcRae. voluntarily surrendered hislicense to the Committee on Profes­sional Conduct in October. JudgeClaiborne was impeached and re­moved from office in October 1986after being convicted of income taxevasion. The conviction on incometax evasion constitutes a violationof Rule 8.4 of the Model Rules of Pro­fessional Conduct involving mis­conduct. The state AttorneyGeneral's Office. on behalf of theCommittee. filed a lawsuit in circuitcourt on December 31. 1986. to dis­bca Judge Claiborne.

JEPTHA A. EVANSSurrender of License

Jeptha A. Evans. of Booneville,voluntarily surrendered his licenseto the Committee on ProfessionalConduct in October. Evans stated inhis petition for surrender that due tohis advancing age and relatedhealth problems, he could not ade­quately continue in the practice oflaw. Evans received a letter of repri­mand from the Committee last yearfor violation of Rule 1.8 of the ModelRules of Professional Conduct con­cerning conflict of interest.

GERALD W. CARLYLELetter of Reprimand

Gerald W. Carlyle, of Newport.was issued a letter of reprimand bythe Committee on Professional Con­duct in September for violation ofRules 1.3. 1.4 and 8.4 of the ModelRules of Professional Conduct in­volving diligence. communicationand misconduct. Carlyle was hiredin September 1984 and paid $I(XX) topursue a judgment against a corpo­ration and stockholder and to dis­solve the corporation. Part of his feewas to hire co-counsel in PulaskiCounty. The complainants said co­counsel was never obtained. butCarlyle filed suit on their behalf inPulaski County Chancery Court inOctober 1984. After much delay. the

matter was non-suited and refiledin Pulaski County Circuit Courtin February 1986. By that time, thecorporation was closed and allassets had been auctioned off. Aftera hearing date was set, the com­plainants went to the Pulaski Coun­ty Courthouse to meet Carlyle andfinalize and file the settlementdocuments. but Carlyle did not ap­pear. He said he would handle thematter at a later time. In March 1987.the complainants picked up theirfile and hired another attorney.They learned that in November 1986.a judge had signed an "agreedorder" which dismissed the individ­ual defendant from the suit andawarded a $15,000 judgmentagainst the corporation. The com­plainants said this violated expressinstructions to Carlyle.

RONALD D. HEUERTwo Letters of Reprimand

Ronald D. Heller. of Little Rock.was issued a letter of reprimand bythe Committee on Professional Con­duct in September and October forviolations of Rules 1.3 and 3.2 of theModel Rules of Professional Con­duct involving diligence and expe­diting litigation.

He was reprimanded by the Com­mittee in September as the result ofa Per Curiam order of the ArkansasSupreme Court granting a "motionfor rule" on the Supreme Court clerk.Heller said it was his fault that therecord was not timely tendered forthe appellant. The matter was sub­mitted to the Committee by theSupreme Court and processed as aformal complaint. The complaintwas received by Heller on July 2.1987. and. despite assurances fromhim that a response would be sub­mitted. no response was received.

He was reprimanded in Octoberas the result of another Per Curiamorder from the Supreme Court. TheCourt said Heller had representedan appellant to appeal his criminalconvictions. Heller tendered the rec­ord to the clerk for filing more than

LEGAL BRIEf PRINTINGPARAGON Printing & Stationery Company has beenprinting briefs for over 35 years. Can we be of serviceto you?311 East Capitol Little Rock 375-1281

seven months alter the expirationdate and the clerk refused to file therecord. Several months later, Hellerfiled a Rule 37 petition in trial courtalleging ineffective assistance oftrial counsel. On October 21. 1985, ina hearing before the trial court, Hel­ler said he liled a "motion for rule onthe clerk." On the basis of that repre­sentation, the trial court set an ap­peal bond and the appellant was re­leased pending appeal. Nearlyeight months later, the state movedfor revocation of the appeal bond al­leging that no "motion for rule" hadbeen filed. At a hearing, Heller con­ceded he had never filed the motion.The bond was revoked and Hellerwas found in contempt of court. Thecomplaint was sent to Heller on May12, 1987, and he did not respond.

PHIL BARTONTwo Letters of Caution

Phil Barton, of DeQueen, wasissued two lellers of caution by theCommittee on Professional Con­duct in September for violations ofRules 1.3 and 3.2 of the Model Rulesof Professional Conduct involvingdiligence and expediting litigation.

In a Per Curiam order dated July29, 1987, the Arkansas Court ofAppeals denied Barton's "motion tofile a belated brief" in two cases. Inone case, the Court of Appeals saidBarton had failed to lile an appel­lant's brief which was due on May 2,1987. In a letter to the ArkansasSupreme Court clerk on June 8, 1987,Barton said he would tender thebrief in this case no later than June15, 1987. The brief was tendered onJune 16, 1987, and was found to beout of compliance with Rule 9(d) ofthe Rules of the Arkansas SupremeCourt and Court of Appeals. His mo­tion to file the belated brief was de­nied.

In another case, the Court ofAppeals said that an appellant'sbrief was filed on December 26,1986, but was later determined notto be in compliance with Rule 9(d) ofthe Supreme Court and Court of Ap­peals. Barton was directed to lile asubstituted appellant's brief in com­pliance with Rule 9(d) by April 3,1987, but failed to do so. He told theCourt in a letter dated June 8, 1987,that he would tender the brief no lat­er than June 15, 1987. The brief wastendered on June 16, 1987, alongwith a "motion to file a belated

brief." An inspection of the briefrevealed that it was not in compli­ance with Rule 9(d) and his motionwas denied.

STEPHEN CHOATELetter of Caution

Stephen Choate, of HeberSprings, was issued a letter of cau­tion by the Committee on Profes­sional Conduct in September for vi­olation of Rule 1.12 of the ModelRules of Professional Conduct in­volving the requirements of formerjudges. The complainant stated thatshe was the plaintiff in a lawsuitfiled against Greers Ferry andheard by Choate in his capacity ascircuit judge. The defendant, thecity of Greers Ferry, was represent­ed by City Attorney Darrell Graves.The complainant said that whenChoate left the bench, he resumedpractice in the same law firm inwhich Graves practiced. She saidthat at city council meetings,Choate made reference to work be­ing done for the city by "his firm."She said further that Choate suc­ceeded Graves as city attorney. Thecomplainant said that she hadobtained financial records whichshow that the legal fee for thepreparation of the Greers Ferry briefin the case she filed was paid toChoate with an indication "forO'Brien (the complainant) proce­dure case." She said that while sit­ting as judge, Choate participatedin the case, assisted in the prepara­tion of the Greers Ferry brief andshared in the fee.

LINDSEY J• FAIRLEYLetter of Caution

Lindsey J. Fairley, of WestMemphis, a part-time federal mag­istrate, was issued a leller of cau­tion by the Committee on Profes­sional Conduct in September for vi­olation of Rules 1.7 and 1.9 of theModel Rules of ProfessiOnal Con­duct involving conflict of interest. Atitle insurance company said thatunder an agency cantract with

them, Fairley searched real estatetitle records and issued commit­ments for title insurance and title in­surance policies. In this capacity,Fairley issued three owners' poli­cies of title insurance. The policiesinsured against a mortgage held bythe Equitable Assurance Society.He later liled suit to foreclose andnamed the insureds as defendants.

DANIEL J. KROHALetter of Caution

Daniel J. Kroha, of Little Rock,was issued a letter of caution by theCommittee on Professional Con­duct in September for violation ofRules 1.3 and 1.4 of the Model Rulesof Professional Conduct involvingdiligence and communication.Kroha represented the complainantin a divorce. He gave the complain­ant numerous excuses over a 16­month period as to why the case hadnot come to trial. The complainantsaid she attempted to contact Krohanumerous times, leaving messageson his answering machine, but thecalls were not returned. Kroha alsofailed to appear at a scheduledcourt .hearing.

GENE O'DANIELLetter of Caution

Gene ODaniel. of Little Rock, wasissued a letter of caution by theCommittee on Professional Con­duct in September for violation ofRules 1.3 and 1.4 of the Model Rulesof Professional Conduct involvingdiligence and communication.O'Daniel was paid $60.20 to file andservice a lawsuit for the complain­ant. The check was endorsed andcashed by O'Daniel. The complain­ant did not hear from O'Daniel forseveral months and contacted himnear the end of March 1987. She saidO'Daniel told her he'd been unableto file suit for her because of ahealth problem, but assured her thestatute had not run. The complain­ant had no further contact withO'Daniel. 0

January ISB8/Arkansas Lawyer/31

IN MEMORIAM

Timothy D. Brewer

Timothy D. Brewer, aged 30, of Lit­tle Rock, died Tuesday, November10, 1987.

Brewer had been a partner in theHouse, Wallace and Jewell law firmsince September and was a memberof the firm's corporate law section.He joined the firm in 1985 after work­ing three years as in-house counselfor Southwestern Bell TelephoneCompany.

Brewer received his juris doctor­ate in 1982 from the University of AI­kansas at Little Rock School of Law,was survey editor of the UALRLaw Journal and a member of theJournal's Review Committee. He re­ceived a bachelor's degree in artsfrom the University of Central Ar­kansas at Conway in 1979 and wasnamed outstanding general busi­ness administration graduate.

He was treasurer of the Board ofDirectors of the Pulaski CountyChapter of the American Red Crossand chair of the Red Cross BloodServices Committee. He had alsodone volunteer work for the UnitedWay of Pulaski County and the AI­kansas Arthritis Foundation, head­ing and organizing several of the

321Arkansas Lawyer/January 1988

Foundation's benefits.Brewer was an "outstanding

member" of the Phi Delta Phi lawfraternity and a member of the eth­ics committee of the University ofAIkansas for Medical Sciences.

Brewer was born at Lebanon,Tenn., the son of Elwyn and MadeneSowell Brewer, who now reside inEnola (Faulkner County). He was agraduate of Enola High School.

He was a member of the AIkansasBar Association since 1981 and hadserved on its AIkansas Statute Revi­sion, Anti-Trust and Trade Regula­tions, State and Federal Securitiesand Public Information Com­mittees.

Brewer was a member of TrinityUnited Methodist Church. He was amember of the Church's financecommittee and president of theGood News Sunday School class.

Survivors are his wife, Stacy SellsBrewer of Little Rock; a daughter,Allyson Elizabeth Brewer of LittleRock; his parents, Elwyn andMadene Sowell Brewer of Enola;two brothers, Gary Brewer of Enolaand Doyne Brewer of Greenbrier;and a grandmother, Ethel Brewer ofConway.

A scholarship fund has been es­tablished for his infant daughter,Allyson Elizabeth. Contributions tothe scholarship fund should be di­rected to the trust department ofFirst Commercial Bank. Checksshould be made payable to the Ally­son Elizabeth Brewer ScholarshipFund. For more information con­cerning the fund, contact the House,Wallace and Jewell firm, 3800 Capi­tol Towers, Little Rock. AR 72201, orphone 375-9151.

Jack Daily

Jack Daily, age 75, of Fort Smith,died Sunday, October 18, 1987.

Daily was a graduate of the Uni­versity of Arkansas and attendedStanford University and the Univer­sity of Michigan.

He was a 33-year member of the

Arkansas Bar Association and amember of the Sebastian CountyBar Association and the AmericanBar Association.

Daily was a past president of theNoon Civic Club and a member ofKappa Sigma Fraternity.

He was a member of S1. Bartho­lomew's Episcopal Church.

Survivors are his wife, IsabelleDaily of Fort Smith; two sons,Thomas A. Daily of Fort Smith andHarry Pete Daily of Englewood,Colo.; a sister, Jane Tennant of FortSmith; and seven grandchildren.

William H. Drew. Sr.

William H. Drew, Sr., age 67, ofLake Village, died Sunday, No­vember 8, 1987.

Drew, a retired AImy Reserve ma­jor, was a Mason and a World War IINavy veteran.

He was a 35-year member of theAIkansas Bar Association and wasa former member of its ContinuingLegal Education and ProfessionalEthics and Grievances Committees.Drew was also a member of theAmerican Bar Association and theAmerican Legion.

Drew was an Episcopalian.Survivors are his wife, Mary

Kosearas Drew of Lake Village; twosons, William Howard Drew, Jr.,and George Stuart Drew of Lake Vil­lage; a daughter, Katharyn Chris­tine Drew of Pine Bluff; a brother,Stuart Drew of Jackson, Miss.; a sis­ter, Katharyn Lott of Hot Springs;and five grandchildren.

Thomas D. Wynne. Jr.

Thomas D. Wynne, Jr., age 71, ofFordyce, died Tuesday, September29, 1987.

Wynne was the senior partner inthe Wynne, Wynne and Wynne lawfirm.

He had been a practicing attorneyin Fordyce since 1953. He was a for-

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mer mayor of Fordyce and a formermunicipal judge and deputy prose­cuting attorney.

Born December 30. 1915. he wasthe son of the late Thomas DuncanWynne. Sr.. and Agnes Gill Wynne.

Wynne was a graduate of the Uni­versity of Arkansas. where he re­ceived his law and undergraduatedegrees. He was also a graduate ofFordyce High School.

Wynne was a veteran of WorldWar II and was awarded the U.S. AirForce Silver Star. two DistinguishedFlying Crosses. six Air Medals anda Purple Heart.

He was past president of the For­dyce Chamber of Commerce. pastvice president of the ArkansasMunicipal League. former state li­aison officer from Arkansas to theU.S. Air Force Academy and a for­mer member of the Fordyce RotaryClub.

He was a 34-year member of theArkansas Bar Association.

Wynne was a past member of theboard of directors of the ArkansasState Golf Association and wasamong the top golfers in the state inhis youth. He was a longtime foot­ball official and was a lifetimemember of the Arkansas FootballOfficials Association.

He was a member of the First Unit­ed Methodist Church. past chair ofits Board of Trustees and a memberof its Administrative Board.

Survivors are his wife. MargaretWest Wynne of Fordyce; three sons.Tom Duncan Wynne III and RobinFrench Wynne of Fordyce and TenyFrank Wynne of Pine Bluff; onedaughter. Mary West Wynne Roarkof Fordyce; four brothers. Hal GillWynne of Arlington. Va .. RobertDouglas Wynne of New Orleans.La.. and Dr. George French Wynneof Warren; two sisters. AnnetteWynne Shipman of Scottsdale. As..and Agnes Wynne Phillips of LittleRock; and eight grandchildren. 0

January 1988/Arkansas Lawyer/33

Arkansas IOLTA Program

Funds Increasing"Geometrically"

'mnwitiottFor more than 50 years, the attorneys of Arkansas and neighboring stateshave relied on Trevathan for excellence in the printing of briefs.

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state. Second, to ease many law­yers' minds, the degree of difficultyin joining IOLTA is minimal. All youbave to do is sign the form, send it tothe Foundation's office and post inyour office the required notice toclients about your participation inthe program. We recruit the bonksand they convert the accounts andsend in the interest. Third, there isstill some confusion over the re­quired method to notify clients. Yousimply post a notice which we pro­vide.

Lawyers occasionally ask ques­tions concerning whicb fundsshould be deposited in the clienttrust account and whicb fundsshould be invested for a particularclient. Three factors should be con-

By Susanne Roberts

The Arkansas IOLTA Foundation,Inc., continues its enrollment of at­torneys and financial institutions inthe Interest on Lawyers' Trust Ac­counts (I0LTA) program. I want tothank you for your cordial receptionduring my visits to law officesthroughout the state. It's truly beena pleasure to visit with those of youon the "front lines."

Some issues concerning IOLTAare repeatedly raised. First. manyof you, though well intentioned,have been putting off signing ourenrollment form and sending it in. Ifyou've received the form but baven'tyet signed up, please do so. It's dilli­cult to call on every lawyer in the

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34/Arkansas Lawyer/January 1988

IOLTA

ATTORNEY HONOR ROLL

To lam TTlOr1' ~hout tlx ConniWl.ion writr: Coro· mnnitlltion. 'vY.uhi"!jl.Ol'l. D.C. !o;>Sqq. The Commil' l ~

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& HaleKathryn P. EisenkramerLaser, Sharp & MayesMadden. Huddle & JohnsonRobert McHenry

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Guly 16. 1987 to October 15. 1987)

Bill D. EtterMartha P. GilpatrickMichael R. GottHugh W. HarrisonHoward & HowardMcDaniel & WellsRees Law FirmSeay & Bristow

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ARKADELPHIASteve DeMottWright. Chaney & Berry

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JUDICIAL DEPARTMENTREPORT

Judicial ProductivityIs Improving

Suite 501, Continental Building100 Main St., Little Rock, Ark.

1-501-375-1439

A composite picture of perfor­mance within the judicial branchcan be obtained by reviewing threeother indicators. The quantity of liti­gation can be shown from the num­ber of filings. The ability of the judi­cial system to adjudicate those fil­ings may be measured by the num­ber of terminations. Finally. the"backlog" can be shown by the num­ber of active cases pending at theend of a given fiscal year.

Tbe line chart which appears onthis page provides the opportunityto observe our recent experience ineach of these areas.

Not surprisingly. filings have con­tinued to increase. yet that rate ofincrease has been somewhat sup­pressed in recent years. Termina­tions over the period have also in­creased. However. the rate of in­crease has not quite been sufficientto absorb the increased rate of fil­ings. yet the gap is closing. Conse-

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every 100 cases filed, 97 cases werebrought to a conclusion.

By R. Christopher Thomas

In recent years, this departmenthas encouraged the acquisition anduse of computers to aid our circuit,chancery and probate judges in themanagement of their dockets. In ad­dition, many judges have obtainedthe support of case coordinators,and other court related personnel.such as law clerks. Further. thereappears to be an increased interestin the subject of docket manage­ment among the various jurisdic­tions. Therefore. it seems appropri­ate to investigate whether thesedevelopments have had any meas­urable impact upon the processingof cases.

Although the fundamental pur­pose of our data acquisition effort isto provide case management infor­mation for individual judges, otherbenefits accrue from this rathersubstantial collection of data. Onesuch benefit is the compilation ofstatewide information on the statusof the court system in general. Forexample, statistics provided by thisdepartment are utilized by the Judi­cial Reapportionment Board in theiranalysis of requests for additionaljudges. On a more general note. ourdata can, from time to time, tell usabout the overall health of our judi­cial system.

One basic measure of activitywithin the judicial branch is the dis­position rate, which is a compari­son of the number of cases terminat­ed to the number of cases filed. Thisindicator tells whether existing ju­dicial resources are coping withcases as they are filed. Three yearsago, in fiscal year 1983-84. the dispo­sition rate was 92"10. In our most re­cent fiscal year. 1986-87, this dispo­sition rate had improved markedlyto 97%. Thus. last fiscal year, for

36/Arkansas Lawyer/January 1988

..'

_-••••---••PENDING END

60000

SOOOO

4CXXXl<-=:-:-~::;-~::---=::;83184 84!85 85186 8&87

FISCAL YEAR

January 1988/Arkansas Lawyer/37

ooסס14

130000

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COURTS OF GENERAL JURISDICTION(Circuit, Chancery. and Probate)

CASELOAD SUMMARYFY 1983/84 - FY 1986/87

able to assume that the recent ten­dency of general jurisdiction judgesto make use of case coordinatorsand computerization will continue.Third, at least insofar as circuitcourt is concerned, the transfer ofsome civil litigation to municipalcourts will have a beneficial effect.Fourth, interest remains high inobtaining adequate support re­sources for our general jurisdictionjudges and state funding for thatsupport will continue to be sought.

For the present, the court systemisn't losing any appreciable groundin the never. ending battle with in­creased filings, yet it isn't gainingany ground either. Perhaps the re­cent developments outlined abovewill favorably affect that stale­mate.

©Est. in 1967

the addition to the "backlog" hasbeen proportionately less each ofthe last two years. The result is acontinuing, almost imperceptible,upward movement in the number ofcases which our courts are unableto handle each year.

There are a number of factors thatmay serve to arrest the creeping in­crease in "backlog" and perhapsreverse the trend. First, five addi·tional judges will take the bench inthe near future. Second, it is reason-

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quently, the number of cases pend­ing has continued to increase, yet ata slightly lower rate of increase.

Two modest conclusions may bedrawn from the analysis. First, ourgeneral jurisdiction courts, for thepresent. are almost managing theinventory of new cases with whichthey are burdened each year. Sec­ond, while the disposition rateremains high, each year sees asmall number of cases added to the"pending end" measure. However,

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EXECUTIVE DIRECTOR'S PAGE

Meetings...Meetings. II

By William A. Martin

"To maintain the requisite knowl­edge and slrill, a lawyer should en­gage in continuing study and educa­tion."Comment, Rule 1.1.Model Rules of Professional Conduct

"Another bar association meet­ing!" Does that announcement cre­ate happy images and eager antici­pation or do you think, 'Tm not inter­ested and won't go?" I believe thoseof you not attending bar associationmeetings are missing somethinggood - something both education­al and fun.

In our serious moments, we knowlaw grows and changes so fast that,at best. we can only keep up with asmall part. We need to know notonly what the law is, but what it islikely to be the next time an ap­pellate court rules on an issue. Con­tinuing legal education programsprovide additional sources of inlor­mation to draw from in our effort tomeet ethical requirements. Andwith the coming of mandatory CLE,we have a specific, measurable ob­ligation to attend educational pro­grams.

to encourage cordialrelations among lawyers:'Article I. Arkansas BarAssociation Constitution

Lawyers represent clients withzeal and are opposed by otherlawyers representing their clients'interests with equal zeal. To limitconflicts to the courtroom and thenegotiating table, lawyers need theneutral ground provided by organ­ized social functions and bar asso­ciation meetings.

38/Arkonsas LawyerlJanuary 1988

The burden of handling otherpeoples' problems and the timerestraints that go with the practiceof law create stress that cries out forrelief. Bar association meetings,with their non-adversarial settings,provide a welcome change of pace- a mini vacation - while makingproductive use of the lawyer's time.

Whether it's a local bar associa­tion luncheon, dinner or social houror the American Bar Association'sannual meeting, lawyers benefittremendously from attending meet·ings with other lawyers. Our Arkan·sas Bar Association and ArkansasInstitute for Continuing Legal Edu­cation (AICLE) meetings and pro­grams provide wonderful opportu­nities for learning and renewingand reinforcing friendships withother lawyers and their families.Some of our upcoming attractionsinclude:

• The Mid-Year Meeting on January 22and 23, 1988, featuring "Racehorse"Haynes and presentations on Arkansas

court decisions, family. criminal andreal estate law. taxation. ethics. thenew Corporation System and the new Ar­kansas Code. In addition, the tradition­al reception 01 the Arkansas Law Cen­ter, the Arkansas Bar Founda1ion dinnerand meetings of Association commit­tees and the House of Delega1es providebusiness and social activities for every­one.

• The Natural Resources Law Instituteon February 2S to 27, 1988, brings lawyersand landmen together in Hot Springs forprograms on oil and gas and a day atOaklown Park.

• The dynamic Irving Younger. na­tionally recognized for his speeches onlitigation tactics, will speak March 11.1988, on jury selection and discovery at aseminar sponsored by AlCLE.

• The always important Federal Prac­tice Inslilute on March 10. 1988, will lea­ture the insights 01 federal judges andlawyers on successlully handling feder­al cases.

• The Workers' Compensation Law In­stitute on April IS. 1988, a1tracts many in­surance and labor representatives withwhom lawyers work in handling casesfor injured workers and their employers.

• The popular Tax Awareness Semi­nar on May 6. 1988. helps keep the lawyerwho is not a tax expert up-to-date on howtax changes oifecl the practice of low.

• The Arkansas Bar Associa1ion's An­nual Meeting on June 8-11. 1988, in HotSprings, will be held in conjunction withthe Arkansas Judicial Council. Your Ic>­cal courts should be closed and theirjudges present at this joint meeting.Highlights include the introduction ofthe newly revised Arkansas Form Book.the ever popular Gridiron presentationby the Pulaski County Bar Associa1ion. adinner/dance with lillie Joe and the BK'sand receptions, sports events. lawschool alumni luncheons and numerousmeetings 01 our committees and affili·ated organizations.

Take a look at these meetings andCLE offerings. If you haven't beenattending, give us a try. You'll likewhat you discover! D

YOUNG LAWYERS' UPDATE

"Leadership"

By Michael H. Crawford

Webster's Dictionary defines"lead" in part as: "I. To guide; 2. Tobe ahead; 3. To make the beginningplay; 4. The winning position; 5. Amargin of advantage." All too oftenwe confuse the word "leadership"with such words as "president:'"chairman" or "boss." These wordsrefer to people who. though oftenleaders, seldom provide the truestrength of leadership. It is themembers of the organization whoprovide "the winning position" or "amargin of advantage."

The Young Lawyers' Section, de­spite its numerous successful pro­jects. has failed miserably at lead­ership. Although one in threereaders of this article (more than1.500 lawyers) are members of theYLS. most are simply unaware of thebenefits of membership. We shame­fully boast only a handful (approxi­mately two dozen, at best) ofmembers who participate in theSection. Our leadership is lacking.

The first step in taking the lead isto recognize the path. The path tothe "winning position" necessarilyincludes contributions to the profes­sion of law. The true leaders arethose who recognize the value ofteam play. When the few join themany, suddenly they find unlimitedopportunities, like the opportunityto help the poor and disadvantagedthrough pro bono representationand the chance to meet other experi­enced attorneys. Increasing job sat­isfaction and sharing good timeswith fellow attorneys through theYLS are but a few of the membershipbenefits.

As young lawyers. we are the fu­ture leaders of the law profession.Find out what the YLS can offer youby calling or writing me concerning

those committees and projectswhich need your help. Be informed!Be a leader!

The YLS is pleased to take thelead by providing:

• The Trial Practice Seminar onMarch 25 and 26, 1988. at the HotSprings Sheraton. The seminaroffers sessions on Friday and Satur­day and afternoon excitement atOaklawn Park. A bulfet lunch in theArkansas Room at Oaklawn Parkwill be held Friday. Seating in theterrace, which offers a great view ofthe finish line, is reserved. Call theArkansas Bar Association at375-4605 or 800-482-9406 to register.Space is limited.

• The Statute of Limitations Hand­book is currently being updated bythe YLS to premiere at the Associa­tion's annual meeting in June. Con­tact Joseph Calhoun at 376-3800 tooffer your assistance.

• The HighSchool Mock Trial

Competition co-sponsored by theYLS will begin in April. This year'stopic is AIDS discrimination in theworkplace. Coaches, judges and or­ganizers are needed. Call SusanneRoberts at 37&-180I to offer your as­sistance or call your local highschool to encourage their participa­tion in the competition.

• The Young Lawyers' Newsletteris being organized by EdwardBoyce. Your assistance is needed tocontribute helpful articles and hu­morous stories. Send your ideas tohim at P.O. Box 948, Newport. AR72112 or call 523-5242.

• The Practice Skills Course willprovide bosic nuts and bolts infor­mation about law practice. GregJones, in collaboration with the Ar­kansas Institute for ContinuingLegal Education (AlCLE), is plan­ning a training course which will beprovided free to all speakers. Ifyou'd like to volunteer to organizethe program or speak at the semi­nar, call Greg at 371-0808.

• District representatives of YLSwill undertake this year to locateand activate young lawyersthroughout Arkansas as part of aLeadership Outreach effort. If you'reready to become involved or justwant to meet some successfulyoung lawyers, give your districtrepresentative a call. The represen­tatives are:

Northwest - Robert Ridgeway. Jr..321-1931

Northeast - Chris Paul. 932-6694Central - Greg Jones. 371-0808Southern - Michael Dennis. 534-5532Won't you become involved in the

YLS and become a leader? A wiseman once said, "There go the peo­ple. I must hurry and catch up withthem for I am their leader:' It is timefor you to catch up with the YoungLawyers' Section. 0

January 198a/Arkansas Lawyer/39

AFTER THE DECLARATIONOF INDEPENDENCE

OUR FOUNDING FATHERSWROTE SOMETHING

EVEN MORE IMPORTANl:Ten years after the signing ofthe Declaration of Independence

our founding fathers created what historians have called the greatest singledocument struck off by the hand and mind ofman.

Our founding fathers created the Constitution ofthe United States.For the first time in history. power was granted by the people to the

govemment. and not by the government to the people.The freedom unleashed by the Constitution allowed Americans

to develop their talents and abilities to the fullest. And attain what is nowknown the world over as the American Dream.

As we commemorate the Bicentennial of the Constitution, there isno better way for you as an American to reaffirm the principles for whichour country stands than to learn more about the Constitution.

The words we live by.

THE CONSTITUTIONThe words we live by

To learn more about the Constitution write: Constitution, Washington. D.C. 20599. The Commission on the Bicentennial ofThe: U.S. Constitution.~40/Arkansas Lawyer/January 1988 .

IN-HOUSE NEWSLAW SCHOOLS, A.I. C.L.E. AND HOUSE OF DELEGATES

UNIVERSITYOFARKANSASSCHOOLOF LAW,FAYETTEVILLE

By J. w. Looney

Lonnie Beard has anarticle in the Agricultur­al Law Update entitled"Consequences of Elect­ing to Make the UniformCapitalization Rules In­applicable to CattleHeld for Breeding andDairy Purposes.

Janet Flaccus article"Taxes, Farmers andBankruptcy and the 1986Tax Changes: Much hasChanged, But Much Re­mains the Same" ap­peared in the NebraskaLaw Review. Flaccusserved as co-chair forthe "Fundamentals ofBankruptcy" seminarssponsored by AICLE inFayetteville and LittleRock; spoke at the pro­gram on "Special BankProblems: Setoffs, Post­Petition Credit andLender Liability" andspoke at the 1987 Heart­land Labor and Employ­ment Law Institute on"Recent EmploymentLaw Developments inArkansas and Okla­homa."

Rob Leflar's article"Compensation for WorkRelated Illness inArkansas" has been ac­cepted for publication in

the Arkansas LawReview.

Wylie Davis chairedthe Multistate Bar ExamCommittee on Contractsat its fall meeting inNiagara Falls. N.Y. Hewas a special lecturerfor the University of Ar­kansas Museum Series.His lecture "Birth andGrowth of the UnitedStates" was in obser­vance of the Bicentenni­al of the U.S. Constitu­tion.

Robert A. Lenar con­tinues a full teachingload with the law schoolin torts and conflicts.

Bob Laurence's article"Abuse of Discretion inthe Denial of Sua SponteMotions to DismissUnder II U.S.C. § 707(b):In re Love, Poetic Justiceand the Other Black­bird" appears in the An­nual Survey of Bankrupt­cyLaw.

Mary Beth Matthewsserved as co-chair of theFall Legal Institute Pro­gram on "Organizingand Advising ArkansasBusinesses.

Lou Lindsey was oneof 3S law librariansselected to participatein a research conferencesponsored by Mead Da­ta Central on "EffectiveTeaching of Legal Re­search in an Online En­vironment."

Charles Carnes andWarren E. Banks had anarticle entitled "ShareValuation - A Chancefor Financial Literacy"published in the Califor­nia Western Law Re­view. The article hasbeen selected for re-

printing in the Corpo­rate Practice Commenta­tor which is edited byProfessor F. HodgeO'Neal. a leading schol­ar on corporate law.

Rod Smolla's "A LittleSouth of the Law" ap­pears in the October1987 Southern Magazine.Smolla chaired a paneldiscussion on the consti­tutional aspects of thecrises at Central High ata symposium in Fay­etteville.

Ray Guzman has beenappointed to the Gov­ernor's Commission onProbation, Parole andSentencing.

John Watkins spoke tothe City Attorneys Asso­ciation in Hot Springs onrecent developments inFreedom of Information;to the Arkansas Munici­pal League annualmeeting in Fort Smith on1987 FOIA amendments;to the Sixth District TrialPractice Seminar in Lit­tle Rock on recentchanges in Arkansasrules of civil procedure;and to the Media LawSeminar in Little Rockon confidential sources.

Jake Looney spoke atthe National Institute onCooperative Educationin St. Louis on coopera­tive director liability;served as educationleader for a legal studytour of the Soviet Union;spoke at the annualmeeting of the Ameri­can Embryo Transfer As­sociation in Orlando;and spoke to the Arkan­sas Horticultural Asso­ciation annual meetingin Fort Smith on the new

immigration law's effecton agriculture.

NEW LIBRARIAN HIREDMarcia Baker, former­

ly of the University ofTexas Law Library, hasjoined the staff of theYoung Law Library asassistant librarian incharge of circulation!reference.

STUDENT ACTMTIESJere Diersing, who

graduated last May,won second prize in theNathan Burkan Memori­al Competition for anessay entitled "The Useof the Defense of 'Un­clean Hands' to Copy­right Infringement Ac­tion."

Karen Callahan wasawarded special recog­nition for her entry in theEighth Circuit essaycompetition on papersrelated to the Bicenten­nial of the U.S. Constitu­tion.

Lucy A. Wiggins, whocompleted the LL.M. de­gree last May, has an ar­ticle in the Journal of Ag­ricultural Cooperativeon "Cooperatives, Secu­rities Violations, andAdvisor Liabilities; ACase Study."

ABA-LSD membershipat the U of A School ofLaw, Fayetteville leadsthe circuit with member­ship in excess of 94 per­cent.

MEMORIAL TOJOHN A. BUNCH

During the remodel­ing and expansion pro­ject. the Law School hada grill built in the court-

January 19BB/Arkansas Lawyer/41

yard. The grill may beused by student groups.The Christian LegalSociety will shortlyplace a plaque on thegrill, dedicating it to thememory of John A.Bunch, Class of 1985.

Before graduatingfrom Elkins High SchooLBunch set a nationalhigh school record,which still stands, forrushing 608 yards in asingle game. He playedfootball at Dartmouthbefore transferring toand graduating from Ar­kansas. It was whileworking in banking thatcancer was first diag­nosed. He entered lawschool in September1982. Despite his illness,which had resulted inthe amputation of ahand, he was an activemember of the cookoutcrew, when the Chris­tian Legal Society initi­ated its cookouts thatsemester. Despite sev­eral operations, he per­severed and completedhis degree require­ments. On his death inNovember 1984, he wassurvived by his wife,Aleta, and his six monthold son, Joel.

Grant Hall of theNorthwest ArkansasTimes wrote: "He was arecord-setting athlete,but he will be remem­bered more for the in­spiring way he lived hislife in the face of a pro­longed series of physi­cal setbacks. He foughtto the end." Wally Hall ofthe Arkansas Democratwrote: "He left this earthwithout a complaint,only a prayer to God forhis blessings." His cour­age, his commitmentand his compassion pro­vided an example and amodel to the Law Schoolcommunity. 0

UNIVERSITYOFARKANSASAT UITLEROCKSCHOOL OFLAW

By Paula Casey

Lawrence M. Fried­man, the Marion RiceKirkwood Professor ofLaw at Stanford Univer­sity, delivered a lecture,"The American Consti­tution: A Double Life,"on October L 1987. Thelecture was the sixteen­th in a series sponsoredby the Ben J. AltheimerFoundation.

The Law School host­ed a lecture by ThomasF. Eagleton on October30. Eagleton, the Demo­cratic nominee for vicepresident in 1972, dis­cussed the United StatesConstitution in the finallecture of a series called"The Future of the Amer­ican Constitution."

Dean Lawrence H.Averill attended a meet­ing in Philadelphia as amember of the Consul­tive Group of the Re­statement on the LawGoverning Lawyers.

Professor EugeneMullins gave a presen­tation to the Conferenceof State Prosecutors onthe 1987 Arkansas Codeon October 22 in NorthLittle Rock.

Visiting ProfessorGriffin J. Stockley dis­cussed small claims pro­cedures with the Cen­tral Arkansas MunicipalClerks Association at ameeting on October 30in Little Rock.

On October 2, Profes­sors Philip Oliver andJohn DiPippa debated

the nomination of JudgeRobert Bark to the U.S.Supreme Court. The de­bate, sponsored by theAgora Forum, was heldat the University of Cen­tral Arkansas.

Professor Oliver's ar­ticle "Time to Retire LifeTenure" was publishedin the Wall Street Journalon September 18.

Professor Robert R.Wright was a delegateto the United States/China Joint Session onTrade, Investment andEconomic Law at Beij­ing, People's Republicof China, in August1987. American lawyersmet jointly with theirChinese counterparts todiscuss changes in thelaw which would pro­mote trade between thetwo countries. AttorneyGeneral Edwin Meesechaired the UnitedStates delegation andthe Chinese Minister ofJustice chaired theChinese delegation.Professor Wright alsoattended the Fall Coun­cil and Officers Meetingof the Section of GeneralPractice of the AmericanBar Association in PalmSprings, California, inOctober. He is chair ofthe Arkansas Form BookEditorial Board.

Associate Dean ScottStafford attended a SiteEvaluation OrientationWorkshop sponsored bythe American Bar Asso­ciation at the IndianaUniversity-Purdue Uni­versity at the Indianapo­lis Conference Center inSeptember.

Associate Dean PaulaCasey participated in aworkshop for the devel­opment of professionalskills courses sponsoredby the American Bar As­sociation at the Univer­si ty of New MexicoSchool of Law in Albu­querque in October.Jean Probasco, director

of Admissions, andCasey attended the an­nual meeting of theSouthwest Associationof Prelaw Advisors inNew Orleans, Louisi­ana, in September.

Professor Frances Fen­dler was co-chair of theArkansas Institute forContinuing Legal Edu­cation's (AICLE) FallLegal Institute in FortSmith in October. Pro­fessor Glenn Pasvogelwas co-chair and speak­er for "Fundamentals ofBankruptcy" seminarssponsored by AICLE andheld in Little Rock andFayetteville in Sep­tember.

Professor John Pagangave a talk to the LittleRock Civitan Club aboutthe role of the quorumcourt in county govern­ment.

STUDENT NEWSWilliam Cash, Jon

Taylor, Tricia Eablesand Jana Brown attend­ed a joint meeting of theEighth and Tenth Cir­cuits of the AmericanBar Association/LawStudent Division in Kan­sas City in September.Patti Leuken, governorof the Tenth Circuit for1987-88, also attended.Eables received an ABA!LSD Certificate of Merit.

Cash and Taylor at­tended the AmericanBar Association's Annu­al Meeting in San Fran­cisco in August as vot­ing delegates for theLaw School. A resolu­tion sponsored by LawSchool students dealingwith alternative testingdates for law studentswas approved by theABAILSD assembly.

Mariam Miller Hop­kins and Frank Areycompeted in a regionalmoot court competitionat the University ofTulsa. 0

421Arkansas Lawyerl/anuary 1988

A.I.e.L.E.NEWS

By Rae Jean McCall

During the past year,the Arkansas Institutefor Continuing Legal Ed­ucation offered morethan 30 seminars andteleconferences for Ar­kansas attorneys, Theactive involvement ofboard members, pro­gram committee mem­bers and faculty in pro­viding input on futureprogramming is invalu­able, However, the "un­sung" heroes are thoseattorneys who calLwrite or personally men­tion to AlCLE staff theirrequests for future pro­grams and their sugges­tions for improving ourCLE efforts.

This is definitely ayear 01 growth forAlCLE. With mandatoryCLE and increased legalspecialization on the ho­rizon, AlCLE is expand­ing the type and kind ofCLE offerings to benefita broader cross-sectionof the bar. The first stepwas the development ofa framework for plan­ning. A comprehensivecurriculum approach toprogram planning wasinitiated during the pastyear. This plan estab­lishes a network of prac­tice area advisorycommittees to identifypotential seminarsbased upon types oflegal tasks customarilyperformed and the lev­els of competence re­quired to carry them out.The goal is to providecourses enabling thepractitioner to "acquire"new skills, techniquesand knowledge and tomake it possible for alawyer to maintain andimprove existing skills,techniques and knowl­edge.

Next, five practicearea advisory commit­tees were appointed toplan program selectionand content, identifyand recruit faculty,monitor course qualityand plan the cycle ofcourses in the practicearea. The initial adviso­ry committees and theirrespective chairs are:

Family LawlDomesticRelations - N. DalePrice, Little Rock

Estate Planning/Probate - William D.Haught. Little Rock

Commercial Law/Bankruptcy - Richard L.Ramsay, Pine Bluff

Taxation - ByronEiseman, Little Rock

Litigation - David H.Blair, Batesville

Comments and sug­gestions about potentialCLE programs in theseareas may be directed tothe respective chair or tothe AlCLE staff.

In addition to practicearea advisory commit­tees, the AlCLE Board ofDirectors annuallyelects a program com­mittee with the primaryresponsibility of plan­ning a master calendarof CLE program offer­ings. This year's com­mittee, chaired byDavid M. "Mac" Gloverof Malvern, consists ofAssistant Dean DavidMalone of the Universityof Arkansas School ofLaw, Fayetteville;Professor D. FentonAdams of the UALRSchool of Law; J. ThomasRay of Little Rock; andDavid R. Matthews ofLowell.

Kudos for PreviousPrograms

Special thanks aredue the program chairsfor their efforts in plan­ning and organizing1987 CLE programs.Rosalind R. McCla­nahan of Pine Bluff and

Gregory T. Jones of LittleRock did an outstandingjob in planning the"Bridging-the-Gap" 1987Practice Skills Course.Professors Glenn Pas­vogel of the UALRSchool of Law and JanetFlaccus of U of A Schoolof Law, Fayetteville or­ganized the Fundament­als of Bankruptcy Pro­gram. Attended by morethan 180 persons, thisprogram was a tremen­dous success. The FallLegal Institute, "Organ­izing and Advising Ar­kansas Businesses.was chaired by MaryBeth Matthews, assis­tant professor at the U ofA School of Law, Fay­etteville, and FrancesFendler, assistantprofessor at the UALRSchool of Law. This pro­gram was well-receivedby those in attendance.

Preview of UpcomingPrograms

• Hosted by AICLE,the 1988 Mid·Year Meet·ing of the Arkansas BarAssociation will feature"Recent Developmentsin the Law." The fea·tured speaker will beRichard L. "Racehorse"Haynes, a noted triallawyer from Houston,Texas. In addition to anin·depth analysis of re­cen t decisions in sub­stantive areas, therewill be a overview of thenew Arkansas Corpora.tion System and the 1987Arkansas Code. Themeeting will be held inthe Ballroom of the Ex­celsior Hotel on January22, 1988. Make plansnow to attend!

• March II is the dateto save for a CLE experi·ence like no other. Irv·ing Younger will present"Jury Selection" and"Discovery" in two half­day seminars at the Lit·tIe Rock Holiday InnWest. Irving Younger is

the most dynamic andentertaining CLE lectur·er in the country. Hisunique perspective as aformer prosecutor.judge, law professorand active litigator ­coupled with his excep·tional talent as aspeaker - insures thatthis program will be in­formative and valuableto your practice. D

ARKANSASBARASSOCIATIONHOUSE OFDELEGATESMEETINGOctober 24, 1987

The Arkansas BarAssociation's House ofDelegates met on Octo­ber 24, 1987, at the Fay·etteville Hilton. Presi·dent John F. Stroud, Jr..presided.

Sandra Wilson Cher·ry, the Association'ssecretary-treasurer. cer­tified Bryan J. Reis asthe new delegate fromDistrict 23. He fills theterm of Michael H.Crawford who waselected chair of theYoung Lawyers' Section.

The House approvedthe minutes of its June13, 1987, meeting aspresented and an un·audited financialstatement dated Sep·tember 30, 1987.

MEMBERSHIPREPORT

Philip E. Dixon, chairof the Membership Com­mittee, reported that theAssociation's member­ship has increased by 78members. The Houseapproved the new memobers and applicationsfor reinstatements and

January 1988/Arkansas Lawyer/43

retired status. Dixonurged each delegate tocontact at least six de­linquent members.

LEGISLATION

Martha Miller, theAssociation's lobbyist,outlined the efforts ofthe Code of Ethics Com­mission to create a codeof ethics and moved thatthe House adopt a legis­lative policy on ethicsreform. The motion wasseconded and passed.

Vincent W. Foster, Jr.,chair of both the Execu­tive Council and theLegislative OversightCommittee, addressedthe provisions of a pro­posed bylaws changeconcerning the Legisla­tion Committee and theLegislative OversightCommittee and movedfor its adoption. The mo­tion was seconded andpassed.

JUDICIALCOMPENSATION

AMENDMENT

President Stroud re­ported on behalf ofDennis L. Shackleford,chair of the JudicialCompensation and Dis­ability Committee. Peti­tions are to be circu­lated in each Bar Districtto obtain signatures inorder to place the Ju­dicial CompensationAmendment on the No­vember 1988 ballot as aninitiated act. Copies ofthe petition are avail­able at the Arkansas BarCenter.

OTHERBUSINESS

W. Russell Meeks, m.chair of the MandatoryCLE Committee, report­ed that the Arkansas Su­preme Court has beenrepetitioned on manda­tory CLE. A decision is

44/Arkansas Lawyer/january 1988

expected by Thanks­giving.

Dr. Rae Jean McCall.executive director of theArkansas Institute forContinuing Legal Edu­cation (AICLE), present­ed AICLE·s annual re­port for 1986-87.

Susanne Roberts, ex­ecutive director of theArkansas IOLTA Foun­dation, Inc., reported onthe continuing growth ofIOLTA and the recruit­ment of attorneys forparticipation in the pro­gram.

President Stroud re­ported on behalf of theCorporation System Edi­torial Board that the Ar­kansas Corporation Sys­tem is expected by theMid-Year Meeting inJanuary. He also report­ed that the Debtor/Creditor System is ex­pected by April.

Robert L. Jones. III.chair of the Long-RangePlanning Committee.reported that the Long­Range Planning Confer­ence will be held onApril 22, 1988, at DeGrayLodge.

Samuel A. Perroni, re­porting for the Resolu­tions Committee,moved for the passageof Resolution 87-2 call­ing for at least a 24­month delay in the effec­tive date of the FederalSentencing Guidelineswhich are scheduled togo into effect onNovember I, 1987. Themotion was secondedand passed.

John Gill. chair of theBicentennial Commit­tee, reviewed the manyevents which were or­ganized in Arkansas bythe Committee to cele­brate the Bicentennialof the U.S. Constitution.including the signing ofa replica of the Consti­tution by Vice-PresidentGeorge Bush at thePulaski County Court­house. President Stroud

praised the work of Gilland his committee.

Executive DirectorWilliam A. Martin re­ported on behalf of theCommittee on Incorpo­ration. He presented thefollowing resolution:

The Association. itsofficers, committeesand staff, shallproceed with plans toincorporate the Asso­ciation effective JulyI. 1988. The presidentis authorized to ex­pand the committeestudying incorpora­tion to add expertiseas he deems appro­priate. The commit­tee shall report to theHouse of Delegates atits January 1988 meet­ing so that the Housecan make a final de­termination whetherto go forward with in­corporation.

It was moved that theresolution be adopted.The motion was passed.

President Stroud re­ported on behalf ofHerschel H. Friday,chair of the Model Rulesof Professional ConductCommittee, and pre­sented a "Petition forAmendment of the Mod­el Rules." Charles L.Carpenter, Jr., movedthat the House approvethe petition. The motionwas seconded andpassed.

Ralph M. Cloar, Jr.,chair of the Group insur­ance Committee, movedthat the Associationcontinue to sponsor theCNA professional liabil­ity policy offeredthrough Rather. Beyerand Harper. The motionwas seconded andpassed.

Martin presented thefollowing resolution:

The executive direc­tor and a committeeto be appointed bythe president are au­thorized to exploreproviding LEXIS

Group MembershipServices to membersof the Arkansas BarAssociation. If thecommittee and theexecutive director de­termine the terms ofthe proposed agree­ment are fair and rea­sonable and the offer­ing of LEXIS is benefi­cial to Associationmembers. the execu­tive director is au­thorized to enter intoa LEXIS MembershipGroup Agreementwith Mead Data Cen­tral.

The resolution was sec­onded and passed.

HOUSETO MEET

JANUARY 23

President Stroud re­ported that the nextmeeting of the Housewill be January 23. 1988.He requested approvalof committees appoint­ed since June I. 1987, in­cluding the Form BookEditorial Board. Long­Range Planning Com­mittee. Model Rules ofProfessional ConductCommittee and StatuteRevision Committee. Itwas moved and second­ed that these commit­tees be ratified. The mo­tion passed.

President Stroud alsoannounced that JudgeWilliam Webster, direc­tor of the Central intelli­gence Agency, will bethe featured speaker atthe annual meeting inJune.

There being no otherbusiness. the meetingwas adjourned. 0

Respectfully submitted,

Sandra Wilson CherrySecretary-Treasurer

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