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PUBLISHERArkansas Bar AssociationPhone: (501) 375-4606

Fax: (SOl) 375-4901Homepage: www.arkbar.com

E-Mail: pjones@arkbar.com

EDITORPat lones

GRAPHIC DESIGNSara Lnndis

EDITORIAL BOARDStuart P. Miller, Chair

Wiley A. BrantonMorton GitelmanJames c. GravesJ. Leon Holmes

Jacqueline Johnston/CravensLucinda McDanielDavid H. Williams

Jacqueline S. Wright

OFFICERSPresident

Sandra Cherry

President-ElectMurray Claycomb

Immediate Past PresidentRon D. Harrison

Secretary -TreasurerWilliam A. Martin

Board of Governors ChairDavid Vandergriff

Young Lawyers Section ChairTim Cullen

Executive DirectorDon Hollingsworth

Associate Executive DirectorJudith Gray

BOARD OF GOVERNORSF. Thomas CurryThomas A. Daily

Elizabeth DanielsonKay West ForrestLance B. Gamer

Dave Wisdom HarrodRobert "Skip" HenryGwendolyn Hodge

Jill ]acowayPhilip E. Kaplan

Edwin N. McClureLance R. Miller

Marie-Bernarde MillerJames M. Simpson, Jr.

James D. SprottDanny lhrailkiUTeresa WinelandRobert E. Young

LIAISON MEMBERSH. William Allen

Tom OverbeyJudge James H. Gunter, Jr.

Carolyn B. WitherspoonWilliam Wright

Th~ Arkalls/ls Lilwyer (USPS 546-040) is published quarterlyby theArkansas Bar Association. Periodicals postage paid atWille Rock, Arkansas. I'OSTMASTER: send addresschanges to Tht Arkllllsas Lawyer, 400 West Markham, UttleRock, Arkansas 72201. Subscription priC\" to non-member.;of the Arkansas Bar Association $25.00 per year. Any opinionexpressed herein is thai of the author, and nol necessarilythat of the Arkansas BaT Association or The ArkansasLawyer. Contributions to 'fht Arkansas Lawy~r arewelrome and should be sent in two copies to EDITOR, TIltArkansas Lilwyer, 400 West Markham. Wttle Rock. Arkansas72201. All inquiries regarding advertising should be sent toEditor, The Arkansas Lawytr at the above address.Copyright 2001, Arkansas Bar Association. All rights

~"'.

on en sVOLUME 36, NUMBER 3

FeaturesFocus ON NURSING HOMES

12Nursing Home Fraud and Abuse:

Making a Federal Case of Itby Sandra Wilson Cherry

13Pre-Suit Considerations in Nursing Home Litigarion

by Susan N. Childers

13Defense Perspective Litigating Nursing Home Cases

by Patricia Sinlm Harris

J8Absent a Confidentiality Agreement, Secrets of the Poultry Trade

Become Scrambled Eggs:The Supreme Court's Analysis in ConAgra, Inc. v. Tjson, Inc.

by Mark Murphey Henry

A NEW PRESIDENT FOR 2001-2002

28Sandra Wilson Cherryby PatJones

Contents Continued on Page 2

ContentsVOLUME 36, UMllER 3

3 In This Issue 26President's Report, by Sandra Wilson Cherry

5Executive Director's Report, by Don Hollingsworth

10Justice for All

17Book Review, by Richard C. Downing

22Mock Trial

22West Wing Addition to Justice Building Dedicated

24YLS Section Report, by Tim Cullen

Askansas Supreme Court Historical Sociery, Inc.

34Annual Meeting Award Recipients

36State Courts on the Road to Change

37CLE Calendar

39Judicial Advisory Opinions

40Lawyer Disciplinary Actions

54In Memoriam

56 Classified Advertising/Index to Advertisers

ARKANSAS BAR ASSOCIATION400 W. Markham Litile Rock, Arkansas 72201

HOUSE OF DELEGATES

Delegate District I-SE: Ray Allen Goodwin Delegate District 2-5E: Mark R. Johnson, Katharine C. Wilson

Delegate District ]-SE: Mich.ad E. MulJa1Jy. Paul D. Waddell, [Xnnis Zoplcr Delegate District 4-SE: Bill E. Br2c~. Jr.

Delegate District S-SE: James Bradlq Delegate District 6-SE: Chris Morledge Delepte District 7-SEt Donald E. KeeDelegate District 8-5E: Howard L Manin Delegate District 9-SE: James Par Rowers

Delegate District 10-5E: William Kirby Mo~r. David Sims Delegate District 11-5E: Paul W. Keith Deiepte District 12-5E: James HamiltonDelegate District 13-SE: St~C' R. Crane, Brian H. Ratcliff, Robin Carroll Delegate District I4-SE: FrmkA. Polt, ChrisdeAdanu

Delegate District 15-5E: Barry D. Barber, Todd M. Turner Delegate District I6-SE: Ronald D. Kt:lsay. John T. Vines

Delegate District 17-SEt James Jackson

Delegate District: l-NW: Edwin N. McClure, Glenn E. Kelley, Hardy W Croxton, Jr., George R. S~nce

Delegate District 2·NW: Ernest B. Cate, Boyce R Davis, April M. Rye, Shannon L. Fant, Raymond L. Niblock, Steven S. lega, lim Snively, Matt Durrett, Chris ReedDelegate District )·NW: Niki Cung. Claude S. Hawkins, Jr., Wyman R Wade, Jr., Eddie H. Walker, Jr., Shannon 1. Blatt, limothy C. Sharum, Jason Martinez.

Delegate District 4-NW: Daniel B. Thrailkill Delegate District 5-NW: Gordon Webb

Delegate District 6-NW: John T. Tatum, David L. Eddy

Delegate District 7-NW: Danny M. Rasmussen, Rhonda Wood Delegate District a.NW: Ted Sanders

Delegate District I-e: Brad Hendricks, Gwendolyn D. Hodge, Ron A. Hope, Philip E. Kaplan, Harry A. Light, Stark Ligon, Charles C. Owen,

Harold Evans, Charles L. Schlumberger, Don K. Barnes, Elizabeth A. Thomas, Marshall S. Ney, Melva J. Harmon. John C. Wade, Jeff Broadwater,

Marcella J. Taylor, Reed R. Edwards. M. Stephen Bingham, John Wyvill, Causley Edwards, David Sterling, Parrick Harris,

Brenda Srallings, Mark Allison, David Raupp, Rick R:unsey. Patrick D. Wilson

Law Student Representatives: Valerie Glover, University of Arkansas School of Law; Jason Lee, UALR William H. Bowen School of Law

l T~I ,lrkllSlS 1,IWjlr M'WW.lrk~lr.l:I.

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

Uniting Behind a Clear Vision

Sandra Wilson Cherry

Last year the members of ourAssociation proved mar mey couldplay cogether magnificently toachieve a common goal. one whichis of benefit co all OUf citizens and

to me justice system. Under the leadershipof Ron Harrison, President of theAssociation, and Jim Julian, Chair of theAmendmenr Three Committee,Association members throughout Arkansascommined their time, energy, and, insome cases, their fortune to achieve passageofa new judicial anicle. It was exhilaratingco realize the power of OUf Association to

effectuate change when its members unitesolidly behind an effort to carry Arkansasforward.

While we are still stimulated by ourvictory at the ballor box we must unitebehind a clear vision of where theprofession must go in this new century. Ata time when the practice of law isthreatened by change so swift andsweeping it is difficult to fully comprehendits impact, we must first insure that ourprofession is firmly rooted in a tradition ofservice- to our dients, to the justicesystem, and to our communities, worthyof preservation.

We must then determine how we canbest preserve the traditional practice oflawand yet still move beyond me status quo to

meet me challenges of change. In mecoming Bar year we will strive toaccomplish mese goals by beginning newinitiatives and continuing successful efforrsnow in place.

As lawyers we must work to maintainour leadership role in society throughcontinued emphasis on ethical and civilconduct worthy of our profession. Incoming years. the public will judge, notonly our profession. but the entire justicesystem in large parr by the way lawyerspursue meir livelihood. Through rhe

organization of mentoring programs,through professionalism initiatives in thelaw schools; and through renewed effortsto instill in new lawyers the obligation toserve not only the profession bur thecommunity we will insure ourprofessionallongeviry in an increasinglyforeign world of multi-disciplinarypractice. multi-jurisdictional practice, andmind boggling technological advances.

We must continue our efforts to bringmore people of color into the mainstreamof the Association and thepractice of law in Arkansas. Nolonger is this just the right thing todo. or even the smarr thing to do. It isthe only thing to do if we are rosuccessfully maintain our relevancy whenfaced with the ever changing demographicsof the state and nation. Entering its secondyear, the Arkansas Bar Diversity

Commission, chaired by Judge HenryJones and Past President Ron Harrison, isdeveloping plans to bring law firms, majorcorporations, law school counselors, andwell qualified minority lawyers togetherco address the hiring and retention of theminority lawyer.

Finally, we must work diligently toeducate our youth on the law and practiceof law. By continuing our successfulprograms, such as the Mock Trialcompetition, and initiating new ones suchas a web site for youth education on thelaw, we can make a difference, albeitdifficult to quantify, in maintaining aninformed public, a public in possession ofa clear understanding of the justice system.

Like so many of you, I love thisprofession and am devoted to theAssociation. As your new President, I willdo whatever is within my ability roadvance the cause of both in the comingyear..

It's easy to get good

players.

Dettin' 'em to play

together, that's the

hard part.

• Casey Stengel

I'll. 16 10. I/Summer 200 I. Tie lrkalSlJ LaM)er I

Old Dog

Articles of Incorporation

The lIldefsl~ 9Cbng as II'lCorpofalOfS ole corporaCloo lJ'lder theArkaoSas BusIness COIl)Ol'ooon Act (Act 958 of 1987). adopt thefoIowIng Articles of incorporation of suctl Corporation:

Wwt coal.-tiM..."C~•• °lDcOlporIlled". oe-,.y".•......d·. 0I1be~ "Ccwp'. 0t-,0, "Co.' • 0U4.' 01 __Of 1Ibbr'""""'-' ot1ib ..,art.IDOIbef~.

New Trick

Now, there is a faster, easier way to filecorporation documents in Arkansas.The Online Filing System for Corpor tations, or OFS, was developed by

the Secretary of State's office to pr omote electr onic gover nment in

Arkansas. OFS is available 24 hours a day, 7 days a week, making

the task of filing corporations documents convenient and maybe

even fun!Here is a just a sample of what is available:

• Articles of Incorporation for Domestic, For eign, LLC, and Non-Pr ofit Entities

• Registration of a Rctious Name for Domestic, Par tnership, and LLC Entities

• Registration of a Corporate Name for Domestic and For eign Corporations

• Domestic Corporation Franchise T ax Registration

www.sosweb.state.ar.usjofsj© 2001,Information Network of Arkansas. http://www.accessAr1<ansas.org

[Wfut ill' IIi"l'ft III''s IIl'pm'l

New Opportunities, Professionalism, CLEDon Hollingsworth

E-mail: dhollingswonh@arkbar.com

Earlier this year the Supreme Courtof Arkansas amended the CLERules to allow professionalismcourses [0 coum for me I hourethics requirement each year.

OUf Associarjon had supported this rulechange, which was proposed originally byour Continuing Legal EducationCommircee under the leadership of PastChair Charles Owen.

Rule 3(A) of the Arkansas Rules forMinimum Continuing Legal Educationnow reads as folJows:

"Ethics may include professionalismcourses addressing the principles ofcompetency. declicacion to the serviceof clients, civility, improvement ofjustice. advancemenr of the rule oflaw, and service ro the communicy.

Professionalism courses may includea lawyer's responsibility as an officer ofrhe Coun; responsibility to treatfellow lawyers, members of the bench,

and clients with respect and dignity;responsibility co procect the image ofthe profession; responsibility generallyto public service; the duey to beinformed about methods of disputeresolution and to counsel clientsaccordingly; and misuse and abuse ofdiscovery and litigation."

ClE planners are encouraged to includeprofessionalism components in future ClE

programs.Arkansas is now part of a growing trend

nationally CO emphasize professionalism inseminars for lawyers. Additionally, severalcommittees of our Associatjon are workingon other initiatives to improveprofessionalism among all lawyers inArkansas.

New Computer Training for MembersWhether you are a novice or expert with

computers, we have a new member benefitwhich you may want to try. The ArkansasBar Association has arranged for membersand their employees ro receive a 15%discount on computer training classesthrough New Horizons. Some membersare already familiar with the New HoriwnsComputer Learning Center in Sherwood,Arkansas through attendance at our "BasicComputer Skills" training. (This basicskills training will continue ro be offered,and the training dates are listed in the ClEcalendar.)

With this new member benefit,members and their employees may selectfrom a wide range of computer trainingclasses offered at New Horiwns. For moreinformation, see the member benefitssummary in this issue at page 6. We arepleased that this new benefit is alsoavailable to the employees of Associationmembers.

Leave a LegacyA new program in Arkansas to

encourage charitable giving has beenimplemented by a group of civic mindedindividuals, including a number of ourmembers. You are encouraged to becomefamiliar with this new program, Leave aLegacy. A description of Leave a Legacy byJohn Wade is in this issue of The ArkansaslAwyer. John is the Chair of our Probateand Trust Section.

Our Board of Governors and House ofDelegates have endorsed Leave a Legacy,and leaders from our Probate and TrustSection, Tax Section, and Young LawyersSection have been instrumental in gettingthe program started. The involvement ofattorneys is important to its success.

New Association SectionsThanks to the good efFons of numerous

members and our governing bodies, our

Association now has t\venry-four Sections.The newest Sections arc Civil litigation,Debtor/Creditor, Disability law,Intellectual Property, International Law,Juvenile Justice & Child Welfare, SecuritiesLaw, Small Firm & Practice Management,and Torr Law. The new sections resultedfrom a reorganization of the Association'scommittee structure, which included theelimination of substantive law committeesin favor of sections being the primaryvehicle for members to network withinsubstantive law areas.

For a complete list of the t\venty-fourSections and their annual dues, one mayvisit www.arkbar.com and click on"Committees and Sections." During Julymany of the 24 Sections should have theirown web pages operational on our website.Included will be a section listserv andcomplete contact information for eachsection member.

LobbyistAlice Holcomb has retired as the

lobbyist for the Arkansas Bar Association.Alice performed outstanding legislativeadvocacy for our membership during thepast three years, and she will be sorelymissed. Your Association will be hiring anew lobbyist in me near future.•

INTElLECfUAL PROPERlY ARTIClESREPRINTED

The following articles onintellectual property from the Winter2000 issue of The Arkamas Lawyerhave been reprinted as part of thenew Business Law Manual publishedby the Iowa Bar Association: "A BriefTour of Hot Topics" by Ray F. Cox,Jr.; "Unfair Competition inArkansas" by Tim A. Cheatham;"Everything You Ever Wanted to

Know About CopyrightS (Almost)But Never Bothered to Ask" byDennis B. Haase; and "Of PatentLaw on Everyday Practice" by Joe D.Calhoun.

fol.l610.llSommer 2001 Tbe ,\rk~OS3ll.~W!er 5

The POWER of

Have it Ytmr Way! Customize YOttr Library ofAssociationHandbooks to Suit YtJUr Personal Style

Select from among prim offerings including the ArkansasForm Book, Domestic Relations, Debtor/Creditor, ProbateLaw, Handling Appeals or Real Estate Tide Standards inArkansas.

ORChoose the Arkansas Form Book, Dehror/Credirof orProbate law Handbooks in word processing format.

OROpt for the simplicity of a CD ROM containing anyone orany combination of me following: Arkansas Form Book,Debwr/Creditor, Probate Law, Handling Appeals in Arkansasor Real Estate Tide Standards in Arkansas.

Watch for details on the latest technology offering when anew Arkansas Bar Association member benefit wiU make thePractice Handbooks available on the Internet through LexisPublishing.

To order call 501-375-4606 or 800-609·5668 or emaildgerald@arkbar.com. Or visit our website at

www.arkbarcom for further information.

New Computer Training

Association members and their employees will receive a 15%

discoum on computer classes offered by New Horizons in

Sherwood, Arkansas. Contact Todd Armstrong at New

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

The computer classes available include beginning, inrermediate

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

weB as more than 30 other courses which may be relevant to

attorneys and their employees, such as Outlook, Excel, Access and

Windows.

This new computer trallllllg benefit for Association members

supplements the "Basic Computer Skills for Lawyers" classes

which are still being offered by New Horizons and the Arkansas

Bar Association. The basic computer skills offering is a group class

for approximately 20 attorneys. It is only for novices. Check the

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

Association office.

our Membership®arkansasfindalawyer

An on·line attorney directoryfor Association members only.Review the directory by going

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• Provides Association members a

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The cornerstone of an

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CLE program, and members

pay reduced tuition!

ProfessionalNetworking

The Arkansas Bar Associadonis the best opportunity in

Arkansas for attorneyinteraction through the

Association's public service

projects. sections, andcomrnircees. The Annual

Meeting of me Associationeach June is attended by

1,000 Arkansas 3norneys andhundreds of family

members.

Insurance Discounts

Call Rebsamen Insurance at501-664-8791 or 888-272­

6656 for Associationdiscounts on:

• Group Term Life Insurance• Professional Liabilicy

• Accident• Hospiral Indemnity• Overhead Expense• Disahilicy Income• Long Term Care• Critical Illness

Call UPS ar 800-325-7000and identify yourself as amember of the Arkansas BarAssociation or use account#CP290001685.

ABA Members Retirement

Program. Call 800-826­8901 or visit the website at

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Association members canutilize the conference room atthe Arkansas Bar Center forclient meetings, depositions

and similar matters.Comact the Association

office ar 501-375-4606 or800-609-5668. The room

has seating for 12 tQ 14persons. The Bar Center is

located across the street fromthe Pulaski County

Courthouse.

Advisory EthicsOpinions

It's not always black and white.In the practice of law, there's alot of gray. Your Association's

Professional Ethics andGrievance Comminee can

help. Within specificguidelines, the Committee will

issue an opinion on themember's proposed conduct.

There is an administrativecharge of $50.

On-line legal research

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The Arkansas Bar Associationhas historically worked to

secure adequate funding ofthe court system, to revise

outdated laws, and tQ provideneeded legal information to

the public.Association members do this throughthe legislative program, sections andcommitrees, the Association's Mock

Trial Program, the Young LawyersSection's projectS. and special studies.

Booklets & Guides

Consumer Law Handbook

Senior Citizens/Caregivers

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• Small Claims Bookler

Arkansas Veterans'

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CaJl50l-375-4606 ro order

or download from

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JUSTICE FOR ALLBumpers Honored atFirst AnnualAccess to JusticeSymposium

Former Senator Bumpers was

honoredfOr his work as a member

of the Senate Appropriations

Committee, where he fOught fOr

continued and increased funding

fOr the legal services programs in

the mid-to-late eighties and early

nineties.

10 np \r~lRllll,a\l!pr \I\I\I.lr~hlr.rGI

M ore than J J5 lawyers. judges. lawschool leaders and, communiry

leaders assembled in Lirde Rock March23 ro consider how (0 champion justicefor all Arkansas residclHs. The firstannual Access CO Justice Symposium.cosponsored by the Arkansas BarAssociation and the Arkansas LegalServices Program focused on sixchallenges - or needs that the Arkansasjustice communiry faces:I. Effective delivery of advice and brief

serviCes;

2. Increased pro bono involvemenr;3. Increased resource development;4. Development of statewide leadership;5. More effective collabonnion; and6. Alleviating ingrained parrerns of legal

need facing the poorest cidzens.Repons were prepared by working

groups which focused on each [Opic andare available from Central Arkanss LegalServices. The plan is to formcollaborative work groups [0 conrinuethe state planning process.

John McKay. President of LegalServices Corporatjon, which distributesfederaJ funding [0 legal services programsin the states, was on hand to kick off thesymposium. Another highlight was thepresenmcion of the first annual Access toJustice Award to former U.S. SenatorDale Bumpers.

Former Senator Bumpers was honoredfor his work as a member of the SenateAppropriations Commirree, where hefought for continued and increasedfunding for the legaJ services programs inthe mid-to-Iate eighties and earlynineties. Four Arkansas legal servicesdirectors pointed our that Arkansas is oneof only 1I States that does not providesome kind of state funding.

Olan W. "Butch" Reeves. Chief LegalCounsel for the Governor, was amongthe presenters at the symposium alongwith Ron Harrison, President of the

Arkansas Bar Association; Judge WHo"Dub" Arnold. Chief Justice of theArkansas upreme Court; and JudgeJames Moody. U.S. District Judge for theEastern District of Arkansas. The fourdiscussed how groups could worktogether toward full and meaningfulaccess to the justice system.

Don Hollingsworth. ExecutiveDirector of the Arkansas Bar Association,facilirated a stakeholder panel featuring awide-ranging group of instirutionalproviders and advocates discussing thelegal needs faced by variousconstituencies and how best tocollaborate and allocate resources to meetthose needs. On that panel were BillBrown, Director of the Office of HumanConcern - Community Groups; SCOttHolladay, Director of Advocacy Services,CareLink - Elder Community Groups;David Manley, Chief Administrative LawJudge. SSA - Administrative Law Judges;Judge Oily Neal. Arkansas Court ofAppeals - Judiciary; Susie Poimer,Executive Director, Arkansas IOLTAFoundation, Inc. - Foundations; CarlSachs, Secretary-Treasurer of the boardfor Western Arkansas Legal Services ­Clients; Vicki Supine, NortheastArkansas Council on Family Violence­Domestic ViolenceVictims; Tim Tarvin,University of Arkansas School of Law ­Law Schools; Darrin L. Williams. Chiefof Staff, Arkansas Attorney General'sOffice - tate Agencies; and Judge JoyceWilliams \Xlarren, Circuit & ChanceryCourt, Sixth Judicial District - Judiciary.

In a discussion of state planningefforts, directors from four of the state'ssix legal services programs mentionedrwo planned mergers. East ArkansasLegal Services. Ozark Legal Services. andLegal Services of Northeast Arkansas willmerge and Western Arkansas LegalServices will join the Center for ArkansasLegal Services by the end of the year.•

L_ji:' Nn" COlilur,Chnir ofth_Legal Services Committee,served as modalltorfor flu symposium.

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

Where would our country be without lawyers?

[I]PRIMERUS

Be proud.

Focus ON NURSING HOMES

NUNmgHomeFmudAndAbm~

Making A Federal Case OfIt

by Sandra Wilson Cherry

Early on an August morning in 1995.Augusta Gray was found on a gravelroad outside the Arkansas nursing

home where she lived. Curled in a fetalposition, Mrs. Gray had a deep wound onher forehead, and various cuts and bruises.The nursing home's Director of Nursing,along with an aide, brought Ms. Gray insideto her room where they changed herc10rhing and placed her in her bed.

An ambulance then rransporced Ms.Gray to a nearby hospital, along wirh anincident report prepared by the Director ofNursing. The report falsely reflecred Ms.Gray had fallen in her room and Struck herforehead on a night stand. Hospitalpersonnel bandaged her wound andreturned her to the nursing home without x­rays or a physical examination having beenperformed. Less than 24 hours larer, Ms.Gray was found dead.

Thus began a four year conspiracyberween the Director of Nursing and thenursing home's Administrator to conceal thecircumstances surrounding Ms. Gray's deathfrom inspectors from me Arkansas LongTerm Care Office which investigatescomplainrs on behalf of rhe U.S. HealthCare Finance Administration (HCFA), theagency which cercifies nursing homes for thereceipr of Medicare and Medicaid funds.

Sandra Cherry is anAssistant U.S.Anorney andPresident of theArkansas BarAssociation. Sheis a graduate of theUniversity ofArkansasSchool of Law.

In addition to me false incidem report,the rwo prepared other fraudulentdocuments which were submitted to

regulators, including a chart which falselyreflected Ms. Gray had been monitoredthroughout me night prior to her death.The pair were interviewed twice by agents ofme FBI and a state police detective. Duringboth interviews they maintained the falsestory rhey had created [0 explain theirpatient's death.

The Administrator and Director ofNursing were charged with and convicted ofconspiring to defraud HCFA. Both weresentenced to 18 months imprisonment.The objects of the conspiracy includedgiving f.llse statements to HCFA and theFederal Bureau of Investigation in violationof 18 U.s.c. 1001, and impeding andobstructing a health care investigation, aviolation of 18 U.S.c. 1518. This is one oftwo cases of its kind brought by federalprosecutors in Arkansas to date. In a similarmatter, a nurse was recently convicted forcausing a nurse under her direction to falsify

certification for machines which test forblood sugar levels.

In 1996, Congress substantially increasedthe arsenal of criminal statutes available tofederal prosecurors in addressing healrh carefraud. Nevertheless, starutory means bywhich wrongdoing in nursing homes can beprosecuted, either civilly or criminally,remain limited. No federal means isavailable [0 address directly even rhe mostflagrant physical abuse, even deam, io anursing home. Only when fraud occurs,either in reporting to regulators, as in thecase described ahove, or in filing false claimsfor services provided to residents, can suchwrongdoing in nursing homes be addressed.

The most substantial weapon providedby Congress ro rhe Department ofJustice inits pursuit of nursing home fraud and abuse

is rhe healrh care fraud starure, 18 U.S.c.1347. Section 1347 provides rhar whoeverexecutes or attempts to execute a scheme todefraud a healrh care benefic; program facesupon conviction a sentence ofimprisonment up [0 tcn years, and. in a casewhere bodily injury or dearh resulr from thefraud, a sentence of up [0 20 years to life.

The False Claims Act, 31 U.S.c. 3729, etseq., provides civil sanctions, includingtreble damages, for fraudulent claims filedwirh federal agencies. Thus, nursing homesfiling false claims with Medicare andMedicaid for care provided to elderlyresidents can be substantially punished.

When filing such claims. nursing homesare certifying that adequate cacc wasprovided to the patient recipient. If Ms.Gray's nursing home had filed a claim forher care during rhe 24 hour period fromwhen she was found on rhe road until shedied, rhe claim could come wirhin rhepurview of rhe Act.

The False Claims Act would mostfrequently apply, however, to cases in whichsubstandard, indeed, grossly inadequate careis provided to a nursing home resident overa period of time.

The Department of Justice and theFederal Bureau of Investigation, working inconcert wirh the Inspector General for meu.s. Department of Healm and HumanServices, have substantially increased theirresources in recent years to buttress theirinvestigation of fraud and abuse occurringin connection with nursing home care forour elderly. In Arkansas, me United StaresArtorneys have joined wim rhe ArkansasAttorney General to investigate nursinghome wrongdoing and to prosecute suchcriminal activity hom civilly and criminallyin federal courts, when warranted.

Focus ON NURSING HOMES

PLAINTIFFS PERSPECTIVE:

Pre-Suit Considerations inNursing Home Litigation

by Susan N. Childers

I n many respects, nursing home litigationis easy. It is easy to feel compassion forthe growing numbers of neglected

elderly in our society. It is easy to beappalled hearing the heart-wrenching storiesof the F.l.mily membe" and loved ones ofthose who have been abused by a systemthat is failing those it purports [Q protect. Itis easy, and in faCt almost impossible, nor tobecome emotionally involved in the anguishof those harmed and their loved ones. It isbecause of the aJmost certain feelings ofcompassion that each of those stories evokesthat the pre-suit stage of nursing homelitigation is possibly the most imporcant,and most difficult, phase in the process.

While the concerns and complaints of thefamily members of a loved one who hassuffered injury or even death while residingin a long-term care facility are certainly realand valid, they do nor always indicateneglect that forms the basis for a successfullawsuit against the facility. The nursinghome industry will contend that almost allof the injuries suffered by a nursing homeresident are anributable (Q pre-existingmedical conditions and the natural agingprocess. It is (he plaintiff's anorney'sresponsibility to identify injuries andincidents that are the result of chronicinstitutional neglect. ursing homes thatadmit residents with a known m«licalcondition, such as Alzheimer's disease ordiabetes, have a duty 10 undertake effortS to

treat or minimize those medical outcomes.By mere vinue of admission, nursing homeresidents do not "assume the risk" of beingneglected or abused.

Because most lawye" are sorely lacking inthe area of geriatric medicine. using medicalexpertS to review the n""ing home chanand other medical records is crucial todetermining whether the facility hascommitted any acts or omissions that willwarrant the filing of a lawsuit. Somepotential clients have ....ided in the facility

for many years, often with numerousintermittent hospital visits. Obtaining aU ofthe relevant and often voluminous recordscan be expensive and time consuming. It israre that an initial interview with a familymember will provide an adequate picture ofwhat has really occurred from a medicalstandpoint. Therefore, the importance ofanappropriate review cannot be overlooked.

Another important part of the pre-suitprocess is to evaluate the facility itself. TheArkansas Office of Long Term Careregularly surveys nursing facilities usingstandard guidelines. This review results in asurvey document that cites the facility forany substandard conduct, thus the Office ofLong Term Care is an invaluable resource todetermining whether the facility or itsmanagement has exhibited a past pattern ofproviding inadequate care. Obtaining thisinformation is fairly simple because thesedocuments are a matter of public record andare required to be posted in rhe nursinghome itself.

Unfortunately, most family members areunaware of these inspections and never evenlearn of their existence uncil after litigationhas commenced. Ot surprisingly, mostnursing homes do not tout their su.rveyperformances to prospective familymembers seeking to place their loved ones ina nursing home.

When a resident is unable to speak forhim or herself, it is also important toconsider the family members involved.Unforrunatdy. during contentious litigationagainst a nursing home the resident's lovedones will mosr likely find themselves underarrack by defense counsel who seek to placeblame on the family for failing to complainmore often to facility management or forfailing to move the ....ident to anotherfacility. To an emotional family memberwho viewed the placement of the ....ident ina nursing home as a last resort or who wasunaware of the extent of the neglect beingsuffered by their loved one until it was too

late. this can be a shocking and difficultaccusation to bear; nonethdess. this fact ofnursing home litigation must be consideredby both the F.lmily and the attorney beforegoing forward with litigation.

In most cases filed against nursing homes,the defendants are nor me actual caregivershired by the facility, but rather thecorporations who have failed to providenecessary and available resources in order to

prevent injuries to the residents of thenursing homes they own. Many timesdiscovery will reveal a complicated web ofcorporate entities that comprisemanagement companies. parent companies.the licensee of the F.lcility, the real propertyowner and other related entities.Determining which of these corporationsactually made decisions that resulted in yourresident's injuries can be difficult. Inaddition, defense counsel will mOSt likelyrefuse to provide discovery from thesecorporations absent an order compellingthem to do so by the court. It may be onlyafter taking the depositions of variouscorporate representatives and facilityadminiStrators that sufficient proof of thevarious corporations' relationships exists towarrant a motion to compel. However, it iscrucial at an early stage of the litigation toeducate both the coun and defense counselregarding the claims against the corporation.Attorneys for defendants will attempt toshift blame from the corporation byclaiming that the case is really against thecaregive" of the facility. It is important toremember though that it is the corporatedecision mili" who set the budget and

About the Author

Susan Childe" is an anomey with W~kes& McHugh, P.A. in Little Rock.. She is a1995 graduate of the Unive"ity ofArkansas at Little Rock..

Focus ON NURSING HOMES

force nursing homes [0 operate withinadequate staff and supplies.

The determination of what parties areactually responsible for the damages is alsoimportant in deciding what causes ofaction to allege in your complaint.Arkansas courts have held tha< acts andomissions occurring in a nursing home arenot auromaticaJly medical malpractice.Therefore, certain portions of your cliem'sclaims may fall under the definition ofordinary negligence while others may fallunder the Medical Malpractice Act. Forexample, the failure to adequately staff afacility would logically be a claim forordinary negligence rather man medicalmalpractice. Other potencial causes ofaction include outrage, wrongful death,breach of contract (based on the AdmissionAgreement signed by the resiclem uponentty into the facility) and a claim forpunitive damages. In 1999, the ArkansasLegislature passed the Resident's Rights Actcodified at Ark. Code Ann. § 20-10-20 I, etseq. The purpose of the Act is to providebasic srandards and enforcement for health,care and treatment of persons in long termcare facilities and applies to causes ofactionaccruing afier July 31,1999.

The sad reality is that these lawsuits arenecessary in order to protect the lives o~

nursing home residents. The suits are oneof the few ways residents and their familieshave to hold the nursing home industryaccounrable. The pre-suit phase of anursing home case can be challenging andfrustrating for the plaintiff's lawyer.However, a positive result for the plaintiwill certainly make the process worthwhile.

See Baiky v. Ro" Carr; 307 Ark. 14, 817S.W. 2d 412 (1991); Brown v. St. Paul; 292Ark. 558, 732 S.W: 2d 130 (1987); "7attv. St. Paul; 315 Ark 547, 868 S.W:2d 505(1994); Howard v. Ozark Guidance Cmrn-;326 Ark. 224, 930 S.W.2d 341 (1996);McQ!iay v. Gunrhorp; 334 Ark. 534, 986S.W:2d 850 (1999).•

A great way to find theright lawyer for you!

Log onto me Internet and go dB www.arkbar.com. Then,you're just a dick away from arkansasfindalawyer.com

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

Arkansas Bar Association400 W Markham· Lirtle Rock, Arkansas 72201

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

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Focus ON NURSING HOMES

Defense PerspectiveLitigating Nursing Home Cases

by Patricia Sievers Harris

Plaintiff attorneys have traditionallyrejected potential claims of nursinghome malpractice because of the

mistaken belief that their clients' agecombined with their pre-existing medicalproblems would result in limitedoppormniry for damages sufficient to justifybringing a claim. In addition, nursinghome cases are for the most parr no lessexpensive than the traditional medicalnegligence claim. ExpertS, depositions andtime are substantial in both types of cases.However, in the past three years, nursinghome malpractice suitS have become thenew focus of many personal injury lawyersn.,ionally and in Arkansas.

In a recent edition of the Wall StreetJournal, ir was reported that me averageaward in nursing home negligence casesnearly doubled be<ween 1987 and 1994from $238,285.00 EO $525,853.00. Inaddition, approximately twenty percent ofall cases against nursing homes result inpunitive damages, compared with fivepercent in omer <ypes of personal injurycases. Nursing homes have been the subjectof a gre., deal of publici<y, bom nationallyand in Arkansas. It is not uncommon [Q seetelevision advertising, investigative shows,and other media productions focusing onme alleged abuse and neglecr in nursinghomes. Understandably, all mis attentionand focus has heightened the public'sawareness of what many people havedescribed as a systemic problem withnursing home care.

As a «suIt of mese and omer factors,attorneys who <ypically defend medicalnegligence cases have found mat defense ofnursing home negligence cases has becomemuch more challenging. What makes anursing home case different from a <ypicalmedical malpractice claim? Several expertssuggest that it is the wide expanse ofstatutory law that has been enacted; othersbelieve mat meories of elder abuse, greedycorporate behavior, and fraud and abuse

make nursing home cases different andpotentially capable of high verdicts.

Historically, a common law negligencecause of action against the long term carepEOvider was the primary claim made by aplaintiff. In that regard, long term caE<

liabili<y was evaluated in me same light asmedical negligence. Now, in addition tomaking a claim for medical negligence,plaintiff's counsel will allege violations ofstatutory laws, patterns of prolonged neglectand intentional actS as a basis for the injuryor deam of me «sidem.

Because nursing homes are dependentupon Medicare and Medicaid financially,me nursing home industry is regulated byfederal law and regulations. Theseregulations are typically referred to as"OBRA" which a« regulations set form inthe Omnibus Budget Reconciliation Act of1987. 42 C.ER. § 483. Many plaintiff'slawyers contend in meir civil case on behalfof a resident mat mese OBRA «gulation.SCt out the minimum standards of care,which the nursing home must provide in itsnursing care of residents. In addition to thesubstantial federal regulations, state lawshave been passed which in many casesmirror me federal regulations. The SEatestatutes range from requirements forlicensing, staffing and resident's rightS to

specifics concerning the physical structureof the nursing home. All of me «gulationsand statutes become relevant in defending anursing home malpractice case.

It is very likely mat when a lawsuit is filedagainst a nursing home, plaintiff's counselhas already conducted an extensiveinvestigation. If you «present me facill<y,you should assume mat plaintiff's counselhas already obtained and reviewed Office ofLong Term Care surveys on me defendantfacili<y, and will be familiar wim deficienciescited in those surveys. Plaintiff's counselwilI alteady have obtained the medicalrecords from this facili<y on me patient.Plaintiff's counsel probably will have already

employed an investigacor CO identify andcontact any former employees that can belocated. In fact, by ,he ,ime defense counselis hired co begin an investigation, plaintiff'scounsel may already have in handvideotaped statements from formerdisgruncled employees who will 'estify ma,me defendam facili<y is short SEalfed, ,ha'mey were ove<worked, ma, ,hey did no'have appropria« supplies, and ma, ,herewas not enough staffing co turn patientsevery two hours and co keep them clean anddEy. The goal of plaimiff's counsel would beto offer the testimony of these formeremployees, some of whom may have neverprovided care or treatment to the patient inissue, to establish a "course of conduct"wimin ,he facili<y ma, ul'ima<ely resulted indamage EO the pa'iem. Plaimiff's goal willbe '0 'ry me facili<y by pUEting on evidenceof poor survey tesuhs, including mose no'related in any regard to the patient in issue,and jUXEapose bom survey findings and meformer employee testimony with a theory ofcorpora<e profirs over people.

It is impossible in this shorr space toidemify each and eve<y facEOr ma, a defenselawyer should consider in representingnursing home facilities in these matters.However, severaJ such factors can be brieflyhighligh'ed. Firsr, defense counsel shouldidentify, locate, and interview current andformer personnel from me facili<y whoprovided hands on treatment to the

Patricia Sievers Harrisan anorney

practicing withWright, Lindsey &Jennings LLP in LimeRock. Her practicefocuses on medical

malpractice defense. She is a 1989graduate of UALR School of Law.

Focus ON NURSING HOMES

resident. Jurors would much ramer hearfrom the acrual carc givers with regard to thetype of treatment the residcm received, asopposedco an expert who has simply reviewed therecords and formulated opinions. Second.defense counsel should consider if Office ofLong Term Care survey findings can be usedin the defense of the facility. The defenselawyer should always request underlyingdocumemation supporting each and everyOffice of Long Term Care survey in whichthe care of the resident in issue may havebeen evaluated. Those underlyingdocuments may comain interviews with theresident in issue and a review of theresident's records mar may have very helpful

information indicating thar the residenr ishappy, and indicating that the investigatorfound appropriate care and treatment of theresident in various areas of inquiry.

Third, particular care should be given to

the "medicine" in the case. Defense counselshould identify particular medical specialtiesthat might be of assistance in understandingthe underlying medical conditions whichcontribute to and/or cause many of theresident's ongoing difficulties, includingvascular specialises. endocrinologists,geriatric speciaJists, orthopedic surgeons.and plastic surgeons. Such specialists, whenappropriate, can explain to a jury, forexample, why the resident's underlyingdiabetes and peripheral vascular diseasecaused stasis ulcers to develop on theresident's extremities. through no negligenceon the parr of the nursing home.

CONCLUSIONAttorneys who become involved in

defending nursing home litigation shouldbear in mind that such litigation is anentirely different animal than any other cypeof malpractice litigation. Thus, counselshould make every effort to acquaintthemselves with aU applicable Statutory andregulatory provisions, and to devote a greatdeal of time, energy, and resources indefending such cases.•

Prof. Michael Tigar"Telling the Story of Your Case"plus Tort Law Section Seminar

Little RockProfessor Michael Tigar, one of the nation's big time Iitigators and advocates, will

speak in the morning session on "Telling the Story of Your Case." Mike Tigar is

known for his magnetic podium presence and has been compared to Edward

Bennett Williams or Irving Younger.

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

tables of such notable clients as Angela Davis, the Chicago Seven, former Texas

Governor John Connally and accused Nazi war criminal John Demjanjuk. More

recently, he represents convicted Oklahoma bombing conspirator Terry Nichols.

The cases he has tried, and their verdicts, have had a profound impact upon the

modern body of American law.

In the afternoon session, the Tort Law Section will present other noted speakers

on related topics.

Contact Virginia Hardgrave at

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

www.arkbar.com

An Attack Onthe AbrahamLincoln AlmanacTrial LegendMoonlight: Abraham Lincoln AndThe Almanac Trial (2000)By John Evangelist WaJsh

A BOOK REvIEW BY RICHARD C.DOWNING

Our country has two or perhaps threenonreligious patron saints-GeorgeWashington. Abraham Lincoln and,

to a slightly lesser degree. ThomasJefferson. For each, their legend is basedupon fact sometimes decorated with myth.

We trial lawyers are particularly proudof Lincoln for he was one of us. Heliterally rode, on the back of his horse. to

various courthouses within the IllinoisEighth Judicial Circuir. As a self taughtmember of the Illinois bar, his trial lawyerskills were widely recognized.

Prior to reading this book, I had theopinion I knew the Story of Lincoln'sfamous Almanac murder trial. (Anopll1lOn probably shared by many

Americans.) Afrer reading Moonlight. Idiscovered my opinion was incorrect.John Walsh's book Moonlighr is perhapsthe first scholarly study of this trial-a faCt

which surprised him and. though I did nOt

verify Walsh's Statement, me roo. TheSCOfY of the Almanac Trial itself has beencold and retold. !cs depiction was a majorporcion ofJohn Ford's classic 1939 movie,Young Mr. Lincoln, starring Henry Fondaas Lincoln.

The Almanac Trial involved [he killing

of a man named Press Menger. The twopersons charged with the crime were JamesNorris and a rweney-four year old mannamed William "Duff" Armstrong.Armstrong became Lincoln's link [Q mecase and his client.

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

Book Review

lincoln worked as a general score clerk.Within New Salem, wrestling was a formof male enrertainmem and spoce. Lincoln'swrestling barde with a certain resident,Jack Armstrong. has become pan of theLincoln legend. A friendship developedbetween Armstrong and Lincoln.Armstrong's wife was Hannah and hisyoung child, at the time, was Duff.

After New Salem, Lincoln became alawyer, moved co Springfield, Illinois,successfully ran and was elected co the U.S.Congress. returned to Illinois anddeveloped a reputation as a fine civil triallawyer. [n 1857, the year of the Mengerdeath, Lincoln was involved in hissuccessful Springfield, Illinois law practice.In rhe fall of 1857, Norris and Duff wereindicted for the murder of Menger. JackArmstrong, on his death bed. requested hiswife concacr Lincoln to help his son Duff.Jack died and Hannah Armstrong wrote

Lincoln a lener requesting Lincoln's help.Without hesitation and compensation,Li ncoln agreed.

Using available records, me authorbrings together the elements of the trial.The focus of the story turns [Q the otherdefendant, Norris. who, due (Q asuccessful motion for change of venuerequested and granted to Duff's first set oflawyers, was tried first. The trial begins inHavana, Illinois only a few days after theindictment. The events precedingMetzger's death are described whichincluded excessive use of alcohol andanger. Without giving away roo much ofthe story - Norris is convicted ofmanslaughter. This is the first portion ofthe story of which I was not aware.

Lincoln's involvemenr comes, aspreviously noted, from HannahArmstrong's request for help. Duff's case istransferred to Beardstown, Illinois.(Today, this courthouse is the onlyremaining and still in use "Lincoln

courthouse.") After the granting of theconrinuance, the trial, rather than

occurring in November, 1857, commencesin May, 1858. (This is twO momhs priorro [he famous Lincoln/Douglas debates.)The change of venue and subsequent trialdelay proved to be very beneficial forLincoln's trial preparation. Without thecontinuance, Lincoln would have had only

a few days to prepare Duff's defense. Thecontinuance allowed Lincoln time to

confer with Norris' attorney and have thebenefit of his trial notes.

The Almanac TriaJ begins in May, 1858.The two big defense issues are the cause ofdeath and Duff Armstrong's involvementin the crime. There is no dispute regardingDuff Armstrong's presence at the time ofthe alleged crime. However, Lincoln'scross examination of the doctor's medicalopinion regarding the cause of deathdemonstrates Lincoln's skill as a triallawyer. It is also a particuJarly inrerestingpan of the book.

I still have not menrioned the almanacand Lincoln's use of it. Its use relates to thecross examination of an eye witness ­Charles Allen. Though there is no writtentranscript of the trial, the author piecestogether evidence supporting his thesis.WaJsh's thesis is Lincoln was disingenuous

in his defense of Armstrong and defended,according to Walsh. a person Lincolnknew to be guilty. Part of the evidencesupporting Walsh's thesis, is a letter froman AJmanac Trial juror - John T. Brady. Inhis letter, Mr. Brady, years after the trial,describes the importance of Lincoln's useof the almanac ro discredit Charles Allen'saccount of the crime and DuffArmstrong'spa.rricipation. Therein, lies one of thesecrets of the book which I will nOtdisclose. I will say, contrary to popularbelief, there was no dispute regardingwhether or not there was a moon (thelegend claims Lincoln used the almanac to

prove there was no moon) the night of thecrime. Rather, the issue is Allen'stestimony regarding the position of themoon at the time of the crime. Lincoln'suse of the almanac becomes thecenterpiece of Walsh's attack upon theAlmanac Trial legend and Lincolnpersonally.

As a boy, my earliest readingexperiences involved my reading of aLincoln biography. I can recaJl how irdescribed Lincoln's birthplace, [he dearhof his mother and his self-taughteducation. A few years ago, I was able to

visit Lincoln's Elizabethtown, Kentuckybirthplace.

See Book ReviewContinued on Page 56

I"ol.l! .\a.l/Sommrr iOOI Thr ,Irlmas !,alller 17

Intellectual Property

Absent aconfidentiality

agreement, secrets ofthe poultry trade

becomescrambled eggs:The Supreme Court's

Analysis in

ConAgra, Inc. v. Tyson, Inc.

By Mark Murphey Henry

IS Thp ,Irkanm I,all}pr 1I'\lw.arkharJ'nm

As anybody can attest. a secret is difficult co keep, especiallyonc mat concerns money or confers a business advantage.If in your legal pracdce you come across issues of tradesecret pcmcction. you should be aware of cwo rdacively

recem cases that seemingly impact the application of the ArkansasTrade Secret law codified ar Ark. Code Ann. 4-75-601 (RepL1996). Before analyzing the cases, ir will prove helpful rounderstand me definition of a "trade secret."

A "trade secret" means information, including a formula,panern, compilation, program, device. method. technique. orprocess, thar: [A] Derives independent economic value. actual orpotential, from not being generally known, and not being readilyascertainable by proper means to orner persons who can obtaineconomic value from irs disclosure or use; and [Bl is the subject ofefforrs that are reasonable under the circumstances to maintain its

secrecy.To give some perspective to trade secret law, it is important to

recognize that the federal patent laws serve to protect an inventorfor a limited amount of time, such that, in exchange for thecomplete disclosure of the invention, an invemor is granted theexclusive right to exclude others for a set period of time. Someinvemors complain that the patent process is complicated andburdensome.

Whereas disclosure is the hallmark in patent law, trade secretlaw stands in complete contrast in that a trade secret derivesindependent economic value purely as a function of the level ofsecrecy or confidentiality surrounding the process or compilation.Much like the complajnts surrounding the patent process, thebusiness that wishes to protect trade secrets should recognize thereis a fair amoum of difficulty and complexity in protecting tradesecrets.

Perhaps the most familiar example of a trade secret is theformula for Coca-Cola. Had the founders of Coea-Cola appliedfor a patem, the formulation would be free for all to use becausethe term of the patent would have long since expired. In order to

assure a long and lasting protection of the formulation, the wisefounders Opted to keep the formula a secret.

The Arkansas Supreme Court recently reversed a chancellor'sapplication of the trade secret laws in ConAgm. Inc. v. Tyson Foods.Inc., 30 S.W3d 725 (2000). Under the faCtS of the ConAgra case,three tOp-level executives were "raided" from Tyson by ConAgta.The chancellor opined that sensitive pricing information wouldbe inevitably disclosed contrary to the Trade Secret laws.

The following factOrs are to be considered in determiningwhether company information qualifies as a trade secret: (1) theextent to which the information is known outside the business; (2)the extem to which the information is known by employees andothers involved in the business; (3) the extent of measures takenby the company to guard the secrecy of the information; (4) thevalue of the information to the company and to its competitors;(5) the amount of effort or money expended by the appellee indeveloping the information; and (6) the ease or difficulty withwhich the information could be properly acquired or duplicatedby others. After reviewing the above factors. the chancellorenjoined ConAgra from misappropriating any of Tyson's trade

secrets for a period of one year.Justice Brown based the Arkansas

Supreme Court's reversal on £\\1'0 grounds:(l) The information was not a "tradesecret" because there was no restricdon onthe customers from further revealing thesensitive pricing information. and (2) thethree executives had not signed any writtmconfidtntiality agrumem. The Court statedthat "Tyson had in place no protectionagainst post employment revelation ofconfidential information." The Courtplaced no importance on a company-wide"Code of Conduct" thatexpressly prohibieedemployees fcom divulgingTyson's confidentialinformation. and the Coundid nor address whether theexecutives had a fiduciary duty to

Tyson.The issue of trade secrets and POSt

employment contracts was next addressedby me Couce of Appeals on March 7,200 I, in City Slick", v. Douglns, 73 Ark.App. 64 (200 I). In Douglns, an employeesigned a combined "Confidentiality andNondisclosure Agreemem" that stated, inpart, that me employee would come imocontact with confidential and proprietaryinformation, and the employee could notreveal the confidential information for aperiod of five years following terminationof the employment. The Agreementbroadly defined "confidemial information"as "all information [the employee would]see, hear, come in cOlHacr with orotherwise gain knowledge of, III

connection with [his] employmem."The appellate court affirmed the

chancellor's finding that the Agreementserved as an unreasonable restraim oftrade, and that it was an overly broadcovenant not to compete "masquerading"as a confidentiality agreement. The authorpresumes that the appellate courtinvalidated the Agreement because of theoverbroad definition of "confidentialinformation" rather than the five-yearlimitation. (Generally, a five-yearlimitation on a standard post-employmemnoncompete contract would fail becausesuch noncompete agreements must have areasonable time restriction.)

The Issue of rime limits on

confidentiality agreemenrs is mentioned inAllm v. Johar, Inc., 823 S. W.2d 824(1992), wherein Juscice Brown, me aumorof the ConAgra opinion, joined in thedisseming opinion and stated that "in noevent should the information [cusromerlist] be protected as a trade secret inperpetuity because that would violate thesame public policy against restraint oftrade we have declared to control

noncompetition agreements."It is importam to draw

a clear distinction betweenthose agreemenrs that serveto protect trade secrers and

those intending to restraincompetition. The proreaion oftrade secrers must not be tOOclosely tied ro a time period asis the requirement of non­

compete contracts, for if rheconfidentiality agreement conrains a

definite period, the end of the periodwould signal the potential end of the tradesecret on similar grounds ro [he rationalediscussing "consumers" presented by the

onAgra decision. However, ConAgraseemingly also scands for the propositionthat, without signed confidentialityagreements, trade secret protection isdifficult, if nor impossible to capture.

In view of [he foregoing cases, it shouldbe clear that confidentiality agreements area necessary tool ro protect trade secrets.Moreover, a well-drafted confidemialityagreement will identify the nature of theconfidential information and should belimited only to information that isreasonably necessary to protect thebusiness trade secret and should nor be sobroad as to include material freely availablein the public domain. The contract shouldfollow the logic that information that is inthe public domain at the time of disclosureis non-confidential.

The duration of the confidentialityagreement should nor relate to a date;instead, the duration should relate to theoccurrence of a future event. It shouldpoint ro a time when the confidemialinformation becomes pan of the publicdomain by publication or otherwise,except by breach of the Agreement by theemployee.•

"Under the facts ofthe

ConAgra case, three

top-level executives were

"raided"from 1Json by

ConAgra. The chancellor

opined that sensitive

pricing information would

be inevitably disclosed

contrary to the Trade

Secret laws. "

Mark Henry is aparmer with Henry& Cullen, LLP inLiede Rock andspecializes 111

patents.trademarks,copyrighcs and

issues related ro unfair competition. Heis a 1997 graduate of the University ofArkansas School of Law at Fayetteville.

1"01. n No. ~/Slmler tOO I Til ,Irkusos I,owjlr 19

LEAVE ALEGACY™arkansas

by John Cogan Wade, Chair, Probate and Trust Section and Member, LAL Steeting Committee

market and administer charitable plannedgifts, In 1995, a small group of Arkansans(including several attorneys) was grantedauthority by the National Chapter ofNCPG to form an Arkansas Chapter, Theconcept met with great enthusiasm and hasgrown rapidly, with over 80 members fromacross our State. During this same time, awell-established NCPG Chap,er inColumbus, Ohio was receiving greatacclaim for its "Leave A Legacy" campaign,which was so successful that NCPGsanctioned Leave A Legacy as a priorityproject and trademarked the name. In1999, the Arkansas Chapter of NCPGdecided to join over 70 other chapters ininitiating our own statewide campaign ­Leave a Legacy Arkansas.

In support of Leave a Legacy Arkansas,the Arkansas Bar Association passed aResolur.ion in January, 2000 whereby theAssociation agreed to be a working partnerwith Arkansas NCPG to disseminateinformation to Association members. to

inform them of the benefits of charitablegiving. and to promote the Leave a Legacyprogram co the membership. OurAssociation was the first organization tojoin NCPG Arkansas in supporting Leave aLegacy Arkansas,

Leave A Legacy

Arkansas

is a "win-win"for all

Arkansans and presents

an ideal opportunity for

attorneys to get

involved and elevate the

respect ofour profession.

to The ,Irkmas LIWW www,arkbar,rom

Have you ever made a "decision byomission"? Were you somehow unaware ofa meaningful opportunity that is no longeran opdon?

Unfortunately. "decisions by omission"occur 1110rc frequently man mOSt of us careco admic. Some drive in congested traffic,unaware of a safer and quicker route.Others suffer from sickness, unaware of asimple remedy. Many more have a willprepared, unaware of the opponuniry [Q

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

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

marketing effort, Leave A Legacy (LAL)seeks ro increase the awareness of bequestsand other planned giving alternatives,particularly among individuals whootherwise may not be aware of suchopportunities. A collaboration between theArkansas Chapter of the NationalCommittee on Planned Giving (NCPG),nonprofits. professional advisors, andbusinesses. LAL promotes philanuuopy ingeneral and is not a fund raising event forany charity in particular.

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

of NCPG, which is a professionalassociation of 20,000 members from theUnited Scates and Canada who develop,

Why is LAL important?Wealthy individuals

underscand the imponancegenerally

of estate

planning and can afford sophisticatedadvice, which on-en includes considerationof charitable planned gifts using trUSts andfoundations. But what abom individualswho never seek such advice - either becausethey don't take the time or erroneouslybelieve that they are not ofsufficienr means?Are such individuals making a "decision byomission"? Many worthwhile charities inour communities desperately need financialSUppOT[ from bequests, whether large orsmall in amount.

Researchers predict that during me next50 years, the wealth transferred betweengenerations will exceed $41 trillion, andmay well reach double or triple thatamount. While an estimated 77% ofAmericans donate to nonprofitorganizations during a lifetime, less man 3%include a charitable bequest in their estateplans. Imagine the impact if 10% ofArkansans left a charitable bequest.

How is LAL being promoted in Arkansas?A Steering Committee for Leave A

Legacy Arkansas was formed and began a4-Tier fundraising campaign in March,2000. In Tiet I, members of ArkansasNCPG Board and the Leave a LegacyArkansas Steering Committee madepersonal contributions (Q the program.

In Tier 2, these individuals solicitedcharitable organizations, foundations andbusinesses with whom they had personalclose ties, seeking seed money contributionsof $1,000 ro $5,000. In setting anoutstanding example at an early stage, theArkansas Chapter of NCPG and [he

Arkansas Bar Association each contributed$5,000. The resulting momentum wasinstrumental in the raising of over $50,000from an impressive group of charities,businesses and individuals from throughoutthe State.

The final twO tiers will begin in thecoming months. In Tier 3, over 2,000charitable organizations in Arkansas will beasked ro become LAL members for a $100annual fee. Tier 4 will consist of grantapplications to foundations and businessesfor major gifts.

The collective goal for all four tiers is$750,000, which is the projected budget forthe enrire three-year effort.

LAL has engaged the public relationsfirm of Stone & Ward to mastermind thispublic awareness campaign to encouragepeople from all walks of life ro "leave alegacy" to their communities throughcharitable bequests. Every individual canmake a real difference, irrespective of thesize of the bequest. Beginning in early2002, electronic and print media, specialevents and word of mouth will deliver thissimple yet meaningful message throughoutArkansas. No specific charities will befavored. The campaign will benefit allcharities, be they small rural programs orlarge urban institutions, as suggested by theslogan "a rising tide lifts all boats.".

How can attorneys help?As the draftsmen for wills, attorneys arcindispensable to the success of thiscampaign. Leave A Legacy Arkansas willsucceed only with the enthusiastic suppOrtof our entire Bar. Imagine the fate of the

campaign if a prospective donor asks anattorney about LAL, only to hear a reply of"Never heard of it"? Consequently, beforethe media campaign begins in 2002,Arkansas lawyers will be the focus of aninformation campaign for the balance of2001. Starring with the Annual BarMeeting in Hot Springs, all Arkansasattorneys will have the opportunity in 2001to learn about LAL through presentations,exhibits, brochures and a website (whichshould be operational [his Fall).

For LAL to accomplish its mission, allArkansas attorneys must be aware of thecampaign and prepared to provide informedcounsel ro clients about charitable bequests.Attorneys who seek to counsel clients onsuch issues can register onarkansasfindalawyer.com and include"probate and estate planning" in theirpractice area. Leave A Legacy Arkansasplans to offer a website link toarkansasfindalawyer.com as a service toprospective donors who seek legal advice.Attorneys who prefer not to counsel clientson charitable bequests can neverthelesspromote the campaign by sharing [hemessage and being prepared to referprospective donors to qualified attorneys.

Leave A Legacy Arkansas is a "win-win"for all Arkansans and presents an idealopponuniry for atrorneys to get involvedand elevate the respect of our profession.Please help to make this campaign our"legacy" to those whom we leave behind.

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

the kids. "

"A/1S a group,

support and

This addition to theState Capitol complex

was described byarchitect Randy G.

Murphy as a structurewhich "imparts a

distinct sense ofpermanence, strength

and security. "

The two-story building of

limestone and granite has an

entrance distinguished by a

projecting porrico and a

pediment supported by six

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

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

addition to the State Capitol complex was described by architect

Randy G. Murphy as a structure which "imparts a distinct sense

of permanence, strength and security."

Hundreds of justices, lawyers and friends gathered on a sunny

afternoon in late April for the dedication ceremony on the Main

Entrance lawn. Joining the justices on the patriotically draped

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

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

Association; and other program participants. Among hundreds in

the audience were members of the dedication committee chaired

Justice BuildingContinued on Page 23

The Arkansas Supreme Court Justices and personal staff, the

Office of Professional Programs, the Office of Professional

Conduct, and the Clerk of the

CourtS have permanently

relocated to the Justice

Building's West Wing

Addition, which was recently

completed after two years of

construction.

WEST WING ADDITION TO

JUSTICE BUILDING

DEDICATED

funding from the Arkansas

IOLTA Foundarion.

memorable trip for

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

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

Nebraska May 10-13. With great suppOrt from the team's

attorney coach, Chris Morledge, the Bar's staff consultant, Becky

Gravely, parents and many others our team put forth a valiant

effort. However, it was Iowa,

New Jersey and Washington that

tOok the top three national awards

we cannot thank the ,his year.Attorney Chris Morledge,

Bar Association and eoach for ,he Forrcsr. City «am,

said the students appreciated the

opportunity to represent Arkansas

in the national competition. "As

a group, we cannor thank the Bar

Association and Foundation

enough for all of their support

and aSSistance to make a

memorable trip for the kids," he

said. "Ir was ,he highlighr of our

seniors' year and a wonderful

experience for the entire team."

The program is made possible by

Bar Foundation and the Arkansas

assistance to make a

Foundation enough

MORE THAN 300 ARKANSAS

STUDENTS PARTICIPATE IN

2001 MOCK TRIAL

COMPETITION

Team members proudly display the winning trophy for thestate contest.

Mock TrialContinued on Page 23

for all oftheir

Photo by Bill Martin

it Thr ,Irklnsls LllI)rr 1I1111.ukhmom

Mock TrialContinued From Page 22

Forrest City team plots strategy duringthe Arkansas Finals in Little Rock.

ELECTRICAL ACCIDENTS

Paul D. Mixon, PhD., FE.Engineering Consultant

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

dial-up modems, then

through the Internet, and

now using new wireless

hand-held devices.And new tools for

government affairs

professionals are in the

works for next session. At

the moment, that seems

distant but we can hardly wait

[0 show you. We'll get back ro you.

Meanwhile, thanks again to our many

subscribers - we look forward [0 serving you

agam.

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

It's not like we're thenew guys on the block. ..

The 200 I legislative

session marked the 61st

year of coverage of me

Arkansas GeneralAssembly by Legislacive

Digest - mat's 31

consecutive sessions the

Daily Ugislativ~ Digmhas been delivered each

morning to our

subscribers.

Technology? Yeah, we do that too. Since

1991, Digm subscribers have had computer­

based access to our service - first through

Photo by Bill Martin

Justice BuildingContinued From Page 22

This year 24 teams of junior high and

high school students from around the state

signed up (0 panicipare in the Arkansas Bar

Association Youth Mock Trial. Over 75

lawyers and judges volunteered ro work

with the teams as coaches, served as judges

or helped the teams in ocher ways.

Anorney Sandra Moll was the chairperson

of the 2000 Arkansas Bar Association

Youth Education Committee.•

For more itt/ormation. on how to

participate in 2002, contact Becky

Gravely at bgravely@arkbar.com, 1-800­

609-5668 or 501-375-4606.

by Audrey R. Evan,.

Judge Arnold·, keynote address was fuji

of witty anecdotes many of which put in

perspective me weighty responsibilities of

the judiciary. Governor Huckabee and Ron

Harrison spoke with humor and eloquence

to the significance of the occasion in the

legal communiry and to the people of

Arkansas.•

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

lOlllw I.illl ~I'I'\ St'rl ion III'plll'(

Who Knows Where It May Take You?Tim Cullen

One of the tangible benefits ofinvolvement in your barassociation is the opporruniry (0

travel to exocic places that yourcolleagues choose for their meetings. Inmy shofr few years of volunteering withthe Young Lawyers Section, I've had theopporcuniry [0 travel to such culturalhot spots as Caddo Gap, Arkansas, andLula, Mississippi, in addition to theannual pilgrimages to Memphis and HocSprings. This year, however, thenational Young Lawyers Division oucdidthemselves. The spring conference wasrecendy held in Anchorage, Alaska.

Alaska puts even Texas to shame whenit comes to measuring in vastness.Alaska is home to the tallest mountain inNorth America (McKinley or Denali,depending on ,he age ofyour map). The

hugach Mountains surroundingAnchorage make the Colorado Rockieslook small. Bald eagles, a rare sight onsome Arkansas lakes, are as common asblue jays. Driving down the highwaydall sheep are impossibly perched onsheer precipices juse watching themocorists. Every summer first me smelrand then the salmon make meir longjourney from rhe ocean up the Cook Inlet,and (0 the tiny streams where mey wereborn. Roadside signs warn tourists nor [Q

harass the Beluga whales spouring in thesound. Sea otters Aoating on meir backsseem as amused by us tourists as we are bythem. The rour guide says a sea otter willalways use ,he same rock to crack shellfish.If he drops ,he rock, he will dive ro theborrom and somehow manage among methousands of rocks on the floor of the bayto pick out his same rock for cracking.

Alaska is four time zones and eighthours of Aying time away. As if me timechange wasn't enough co shock one'ssystem, arriving in Anchorage at abom 10p.m. local time looks to me like 7 or 8 p.m.As it turns oue, Anchorage's Arctic latitudeand some phenomenon of the earth's

rotation and the sun's position mat I failedto learn in junior high gives mOSt ofAlaskaabou, twenty hours of daylighr in thesummer. The downside is me average fourhours of daylight in the winter.

Alaska has been in the news lately aboutthe prospect of drilling for oil in ,he Arctic

ational Wildlife Refuge in thenortheastern-most corner of the state.From my own detailed and highlyscientific sampling of a random and broadcross-section of Alaskans (exacdy two cabdrivers), Alaskans are in favor of drilling.Even after the Exxon Valdez tragedy.Alaska's economy is wholly dependent onoil. While no one would give me a Straightanswer on the details. it seems mat manyAlaskans receive periodic checks orvouchers of some kind from the oilcompanies, which may have some bearingon how they feel about continued oilexploration and development.

Many of the people in Alaska seemed abit odd. Friendly, but odd. Maybe fourhours of daylight in the wimer has thateffect on everyone.

Among its many other distinctions,Alaska is ,he only s"'te to be occupied bya foreign country. In June of 1942,Japan occupied Anu and Kiska, twosmall oudying islands in me Aleutians.This occupation, and Alaska'svulnerability co furmer attack,prompted a massive military buildup inAlaska ,hat is still evident today. Thegovernment expedited public worksprojects from harbors to highways torailroads. The military carved a "secret"harbor Out of sheer wildernesssurrounded by impassable glaciers.

building the twO largest buildings inAlaska a, the time. They still stand asdesolate reminders of another age, andthe little {Own around them hasmiraculously survived as a harbor forfishing and recreational boating. Justlast year, me rown, called Whittier, wasopened to motor vehicle access for me

first time by way of a one lane runnel threemiles long that cars, trucks, and trainsshare on an alternating schedule.

While Hot Springs and Memphis can'tcompete with the wild beauty andstrangeness of Alaska. I did discover on mytrip that for a state ofour size and with ourlimited bar resources, Arkansas younglawyers are jus< as involved and dedicatedto meir communities as any young lawyersin me country. Why don't you join withyour colleagues and help our? Who knowswhere it will take you. .. •

Tim Cullen is an attorney at Henry 6­Cullen in Littk Rock. H. is Chair oftheYoung Lawyerl Section of the ArkanslUBar Association.

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THE ARKANSAS SUPREME COURTHISTORICAL SOCIETY, INC.

~~

The first Arkansas Supreme Court recordbook and records from an appeal in 1838.

The Arkansas

Supreme Court Historical

Society, Inc., is a nonprofit

corporation dedicated to

promoting

Arkansas' legal heritage.

A rkansas has a rich and colorful history.Unfortunately, the role played by the

courtS in that history has frequently been

neglected. The tendency to overlook thecourtS when preselHing rhe stare's hiscocy isunderstandable. Lawyers can analyze

16 The ,Irkansas I.awl'f wW",.arkbmom

imponam lega] opinions. but they ottenlack the historical background to placethose decisions in their social, economic,and political context. Historians are familiarwith the backdrop of important opinions,but mer sometimes fail to appreciate theconsnaincs imposed on the courts byprocedural rules and the doctrine of stare

decisis.Now an organization exists that bridges

the gap between lawyers and historians. TheArkansas Supreme Court Historical Society,Inc., is a nonprofit corporation dedicated topromoting Arkansas' legal heritage. Itsinitial board of directors includesrepresentatives from the disciplines of bothlaw and histOry:

Tom W. Dillard, CuratOr, The ButlerCenter for Arkansas Studies, Central

Arkansas Library System

Dr. John Ferguson, State Historian,Arkansas History Commission

John P. Gill, Anorney and formerPresident of the Arkansas Bar Association

J.D. Gingerich, Executor Director,Administrative Office of the Courts

Mon Gitelman,Distinguished Professor of Law,

University of Arkansas School of Law

William B. Jones. Jr., Reporter ofDecisions, Arkansas Supreme Coun

Frances M. Ross,Assistant Professor of History,

University of Arkansas at Little Rock

Mrs. George Rose Smith,member of Historic AIkansas

Museum Commission

SCOtt Stafford, Professor of Law,University of

Arkansas at Little Rock School of Law

Mary F. Worthen, former President ofPulaski Couney Historical Society, Inc.

The board held its organizational meetingin the summer of 2000 and elected SCOttStafford as president, Mon Gitelman asvice-president. and J.D. Gingerich assecretary-treasurer. On April 30. 200 I, meInternal Revenue Service approved theSociety's application for recognition as a taxexempt entity.

The Society's first major project was mepreparation of exhibitS for the April 27,200 I, dedication of the new West Wing ofme Justice Building. The Society arrangedfor the display of the Constitution of 1836,which established the state's first supremecourt, along with a portrait of DanielRingo, the state's first chief justice, and thecoun's original record book from November1836. The Society also prepated fordistribution at the dedication ceremony abrochure which included a brief history ofthe Arkansas appellate courts, a roster ofjustices and officers of the Arkansasappellate courtS, and a description of thelocations of the AIkansas appellate courts.

Future projects include publication of anewsletter with shon biographical sketchesof early Arkansas jurists, presentation ofeducational programs related to Arkansaslegal history, preservation of court records,and sponsorship of scholarly articles with afocus on Arkansas legal history.

Membership in the Sociery is open toanyone with an interest in Arkansas legalhistory. Individual annual dues are $25.Law firm annual dues are $500, whichentitles the firm to name up to tenindividual members. Special rates areavailable for students, educationalinstitutions, and nonprofit organizations.

Dues should be mailed to:

Arkansas Supreme CourtHistorical Society, Inc.

625 Marshal StreetLittle Rock, Arkansas 7220 I

For more iJifoNuation about the Society<o"tact Scott Stafford at 501-324-9951(emaillsstafJord@Ualr.edu) or a"y othermember ofthe Society's board ofdirectors.

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ndrail onrry

She's a formidable opponent in the courtroom.

She's a community leader who has given much time to some very good

causes. She has a good marriage, and has been an involved and

hands-on mother. She is a wonderful example of a woman who has it all.

If these semimems from her longtime friend. businesswoman

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

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

president of me Arkansas Bar Association will surely blush as

she reads this, laugh and say something like, ") paid her to say that. n

Sandra Cherry is the quintessentially genteel Southern lady ­

perfecdy groomed and demure. Think steel magnolia. We talked

for hours over lunch at a trendy Little Rock restaurant and at the

U.S. Attorney's Office where she works, rnosrly about the Bar

Association she loves and to which she has given so much of her

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

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

lives.

UJ nominated her for and she won a national ",uardfor her

lQork (proseCllting) "ealt" care fraud cases. " - PaulA Casey

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

Award for superior performance by an Assisr31H United States

Anomey, Cherry has handled cases that have become models for

prosecutions across the country. For example, though federal

jurisdiction is limited over nursing home neglect and abuse, she

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

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

28 The ,Irkanla! I,alfjrr Ifll'w.arkhar,l'nm

for the Eastern District of Arkansas, prosecutors have (0 be very

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

boxes and boxes of (evidence) [0 find what you need," Casey says.

" Agents like to work with her because they know their work will

come ro fruition if Sandra's handling it. (Sandra's) very thorough.

She doesn't ler go." Deceptively gentle in cross examining people,

most (witnesses) don'r realize they've been had unril it's aJl over. She

did a closing argumenr once mat became a legend in medicaid

fraud. The agenrs who worked on the case commissioned a

painring to commemorare ir. ''I'm not F. Lee Bailey," Cherry says.

"but I've been fairly successful."

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

Healrh Care Fraud Task Force for the Eastern and Wesrern Districts

of Arkansas. The Task Force is made up of differenr agencies such

as the Federal Bureau of Investigarion. the Inrernal Revenue

Service, the HHS Inspector General and the Depanmenr of

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

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

much fraud occurring in mese federal health care programs you feel

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

message."

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

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

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

The trail of her

well-turned heel

leads all over the

Association.

She served as

secretary-treasurer,

is a tenured member of

the House of Delegates,

co-chaired the

Committee on

Opportunities for

Women and Minorities

in the Legal Profession,

and sat on at least four

other committees.

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

medicaid fraud prosecutions.

that became a legend among

She did a closing argument once

--... job she did for me." Witherspoon

says. Cherry won me Arkansas Bar

Association's Golden Gavel Award

for Exemplary Service to the Legal

Profession in 1992. In add.irion [0

her State Bar work, she is a fellow

of the American and Arkansas Bar

Foundations, past president of the

Pulaski County Bar Association

and former president of the UALR

School of Law Alumni Association.

"I think many of us are active in the

Bar because it takes you inca

another area of involvement,

another group of friends you

develop that you would nor meet in

your work," Cherry says. "I

suppose some people do volunreer

work as an interest much like

others pursue a hobby."

Few take their hobby as

seriously as Cherry takes her

community work. "One year (the

U.S. Anorney's Office) donated

Christmas baskets to the elderly

and Sandra decided that it was roo

sad to give anybody a basket

without a ham or turkey in it, so

she bought a ham or rurkey for

every basket." "I think lawyers are

community leaders and they have an obligation to serve the

community." Cherry says. "Professionalism is about serving your

community in whatever way you can. Not just in your Bar but in

your profession."

She's not jusr whistling Dixie. She lives her philosophy of

professionalism and service. She is Immediate Past Chair of the

Arkansas Community Foundation, a founder and director on the

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

Board of the Governor's Mansion Association, and past chair of the

Gains House Board of Directors. Witherspoon says compassion

and balance will distinguish Cherry's term as president.

Her professional life, home life and community work seem to

flow together seamlessly, one complimenting the other. One way

in which home and career come toget.her is she and her husband of

24 years, John S. "Jack" Cherry, share the same profession. "Jack

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

Sbe truly loves to work toimprove tbe overall practice of

law a"d tbe Association itself

These are words from the first

woman president of the Arkansas

Bar Association, Carolyn

Witherspoon, whom Cherry credits

for helping to make her presidency

possible.

"There was a time when Carolyn

and I were rather unique in the Bar,"

Cherry says. "Often we were most

of the women in the room; that is,

twO of the three. For many women,

there is still a glass ceiling to be

overcome, but i£'s been made easier

because of the efforts of women who

precede you. Since I left law school

I have never held a position that a

woman has held before me and you

carry a burden being first. Because

of Carolyn, it is different for me

becoming Bar President."

Witherspoon says she hopes Cherry's term as the second woman

president of the Arkansas Bar wi.!l inspire more women and more

governmenr attorneys ro do committee work and accept leadership

roles. Already, Cherry is making her mark in that regard. "I was

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

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

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

1991 the Women Law Students Association at the University of

Arkansas presented its Gayle Pettus Pontz Award ro her for

outstanding excellence and achievemenr in the legal profession.

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

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

of Delegates, co-chaired the Committee on Opportunities for

Women and Minorities in the Legal Profession, and sat on at least

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

layout your faces to jurors so they'll

remember them and agree with your

views on the outcome.

Schoolteachers and rriallavvyers have

a Jot of 'ham' in them. Trial practice

is stressful at times, but when you

are successful it is very rewarding."

30 The Jlrkm3sl,311,!er IIWII'.3rkbar.rom

1

of ways, he's encouraged me and I've

learned a lot from him about everything

from jury selection to trial strategy. It's

wonderful for twO lawyers to be married

ro each other because you understand !ate

night trial preparation. You understand

the pressure of the trial so you can be

understanding when the other person isstressed...

Each of these lawyers grew up as an

only child, and they have one child, a

beloved daughter named Jane. She is a

sophomore at Wake Forest University and

she recently set her sights on going to law

school.

After the Cherrys posed for

photographs with their pugs, Muffie and

Spuds. at the family's home in Little Rock,

Jack Cherry rook time ro talk abom going

ro his first Bar meeting with his longtime

friend Gordon Rather in the 60's.

Reminiscing, he fondly recalled another

time in the 70's when he asked the lawyer

who became his wife our on a date to one

of those Bar Association Annual Meeting

parties at the Arlington Hotel. Lately, he

says, "Sandra's been doing (Association

work) for both of us." Asked what role he

expects to play in the coming year, he

chuckled, "My role will be to stay our of

the way...She's lucky to have me around."

So, what does the power couple do ro

relax? "We spend weekends at the lake.

We've traveled a lot with the Bar and we

like that." According to Rather. former

president of the American Board of Trial

Advocates, the Cherrys are great

ambassadors. "I pur a premIUm on

representing Arkansas and the Arkansas

Bar well when you're in a leadership

position like this," Rather says. "1 think

Sandra and Jack will do a great job. Jack

Cherry is one of the most genuinely clever

people I know. Hayden and I spent a

good amount of time with Sandra and

Jack at an ABOTA convention in

Florence, Italy and I can tell you they're

just as gracious when they are away from

Arkansas as they are here at home." They

are also known to entertain at their home

to benefit the community organizations

they suppOrt. Seamless, right?

fol.l6 No. MSommor 2001 Tho ,lrkaosas I,l"yer II

"Her professional life, home life and community work seem to

flow together seamlessly, one complimenting the other. One way

in which home and career come together is she and her husband

of 24 years, John S. "Jack" Cherry, share the same profession.

11 The Arkanlll LaM}er MMlwkhlr.cnm

"Professionalism is about Free report shows how to get clients

serving your community in

whatever way you can. Not

just in your Bar but in your

profession."

Calif.-Why do some lawyersget rich while others struggle topay their bills?

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The well-balanced life Cherry has

today follows a couple of early transitions

which she made with patience and

perseverence. She was a senior in high

school just when schools were closed

following rhe Ceneral High Crisis. "One

friend went [0 St. Louis and one went to

Dallas. My parents couldn't believe what

was happening so I didn't do anything ar

first," she recalls. «I took a

correspondence course and attended high

school football games which were played

even though there were no classes. Myhigh school group of friends, known as

the lose Class of 59, became extremely

close and many of us are still very close

today. Finally, I wene co Hendrix College

as a freshman in the Spring semester." She

excelled, as did II ocher seniors from

Ceneral and Hall High. Wichin chree

years. she had transferred to the University

of Arkansas ar Fayerreville and graduared

with a degree in history. Unable (0 find

work, she decided against law school,

returned to college and got a teaching

certificate. She enjoyed reaching junior

high history and civics and then women

began going ro law school in grearer

numbers. Recognizing an opporruniry ro

reclaim her dream deferred. she emered

law school ten years after finishing her

undergraduare degree.

"Jr was suddenly a feeling rhar this

really is my place, char rh.is is whar I

should be doing," Cherry says of her law

school experience. The sparkle in her

eyes as she talks abour whar rhe Arkansas

Bar Association is and what it can become

may be a clue rhar rhis is deja vu.•

rll. II II. l/SI••,r llO I. TIe ArkllSi! Ll~)er II

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

Judge W. H. "SONNY"DILLAHUNfY

Outstanding LawyerThe Outstanding lAwyer Award is

givm in recognition oftxulknu in thepractice oflaw and outstandingcontributions to the profession.

These are a few of the phrasesnominators used used to describe TheHonorable W H. "Sonny" Dillahunty,Chancellor in the 6th Division ChanceryCourt: He IS compcrcnt, honest.extremely hard-working and relentless inalways doing what is righti He is a triallawyer par excellence; He practiced law toprovide his diencs with the very best legalrepresenracion he could give mem...healways put his clients' inreresrs first, aheadof his own.

Sonny Dil1ahumy graduated from theUniversity of Arkansas in 1950 and was asolo practitioner in West Memphis beforebecoming City Attorney in 1957. aposition to which he was reelected fivetimes. In 1968 he was appointed UnitedStates Attorney for the Eastern District ofArkansas, and he served for fourteenyears under the leadership of fourdifferent presidential administrations. Hewas appointed a special justice on theSupreme Court of Arkansas.

He was the originatOr and founder ofthe William OvertOn Inn of Coun inPulaski County. He is a member of ,hePulaski County, Arkansas and AmericanBar Associacions. He and his wife. Emma,have been married for more than SO yearsand ,hey have a daugh,er, Sharon KayeDillahunty.

II Tie ,lrkllSl! Lallfer IIl1w.arkblf.f11

JIM LJULIANOutstanding Lawyer-Citizen

Tht Outstanding Lowytr-Citiun Award is

givm in recognition ofoutstandingparticipation in, and act/lent ptrformanct

oj civic rtspomibilitits andfordemonstraring high standards ofproftssional

competenct and conduct.Jim Julian's contributions to the bar and

the community as a whole have beennumerous. However, this year'sOurstanding Lawyer-Citizen was given inrecognition of his dedication and tirelesseffortS as Chai, of ,he Amendment 3

Campaign Committee, which played a keyrole in the successful passage of the newjudicial article of the ArkansasConstitution. Julian demonscratedleadership, commitment and skill inworking with others on the Amendment 3campaign.

Aside from his work in the Amendment3 campaign, julian has been Chair of theArkansas Bar Association's LegislationCommittee for the past five years. He isalso a Fellow of the Arkansas BarFoundation. Active at the national level ofthe Bar Association, Julian is a member ofthe American Bar Association's LirigacionSection, the Environmenr, Energy andResources Section, the Defense ResearchInstitute and the International Associationof Defense Counsel's Toxic Ton LitigacionComminee. He maintains membership in

the Pulaski County Bar Association and theArkansas Association of Defense Counsel.julian has served on the North Litde RockYMCA Board of Direcrors and was Chairfor three years. He has also been a direcroron the Boards of the YMCA and remains

MICHAEL H.CRAWFORDc.E. Ransick Award of ExceUenceThis award is givm in recognition of

atraordinary urviu to tht legal proftssion.

The C.E. Ransick Award is given foroutstanding service to the Associacion in amanner that brings credit not only to theAssociation, but also to the profession.Mike Crawford is, and has been for hisentire career, the epitome of such a lawyer.As stated by one of his nominarors,Crawford has consistently "put serviceabove self."

As President of the Young Lawyers'Section, member of the House ofDelegates. the Executive Council, andnumerous Association committees. he hasprovided leadership and guidance in evetyaspect of Association work from CLEprogramming, ro membership. to AnnualMeeting planning. His assistance andcreativity with the children's program at,he Annual Mee[ing has helped make thisan important annual event for the lawyer'sentire family once again. In recognition ofhis dedicated service, he has received theGolden Gavel and the Frank Elcan Awardsas well as the Presidential Award ofExcellence. Crawford is bo,h a Fellow anda Sustaining Fellow of ,he Arkansas BarFoundation and has been very active in theArkansas Trial Lawyers' Association.

Crawford also volunteers his time to thework of [he Jaycees, which recognized himas one of the nacion's outstanding youngmen; to the YMCA IndianPrincess/Guide program; and the BoyScours of America. He served as a leaderduring ,he Boy Scou,s' XlX,h Worldjamboree in Santiago, Chile.

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

JUDGE ANDREE ROAFSpecial Presiden..' Award

judge Andree Roaf has always been willing and able to servethe legal profession. During the bar year 2000-0 I, judge Roarsleadership was especially imporranc in the passage ofAmendment 80 and in the promotion of diversity within thelegal profession. She served on both the Amendment 3campaign committee and the Supreme Court's Amendmem 3Implementation Committee, and is a member of the newArkansas Bar Commission on Diversity. In her capacity asPresident of the W. Harold Flower's Law Society, judge Roafassisted the Association in the production of the Civil Righrsprogram at the 2001 Mid Year meeting.

Aucr HOLCOMB

Presidential Award of ExeellenceAJice Holcomb has provided outstanding service ro the

Arkansas Bar Association and its members as our lobbyist forthe past three: years. Her leadership and coordination of theAssociation's legislative program have: included more thandirect lobbying effortS at the State Capitol. Holcomb hasserved as a Delegate to the Association's House of Delegares,has been a liaison member of the Board of Governors, and hasserved as both a member and ex-officio member of theJurisprudence and Law Reform Committee:.Additionally, she played a leading role in the judicial Articleeampaign (Amendment 80) in 1999-2000.

Jim L. JulianContinued From Page 34

on the Board of the orth Little Rock Boys'and Girls' Club.

Julian was recendy selected for inclusionin the civil litigation section of the 200 Iedition of'The Best Lawyers in America."He is a partner in the Chisenhall, escrud& Julian law firm, author of the Arkansassection of the State OSHA Special Repanpublished by Government Institutes and afrequent lecturer. He and his wife of 20years, Patricia, have a daughter namedKathryn.

That folks art smiling btcaust they tbrtW a partytlf tht 2001 Arka11JnJ Bar Association Annual

Muting and EVERYBODY sbowtd lip!Thursday lUluh: Miteht/l, Williams St/ig.Gam and Woodyard, P.LLCand McMath.

lIthik. Drummond and Harrison. P.A.Thursday lIight rl!crptiOIl: Friday. Eldrtdgt d­

Clt"kFriday night rt!ceptio", UALR William H.

BoUltn School ofLow and tbt Univmity ofArkamas Sllwo' oflAw

1.1. n,\•. l/S.ller 2081 n! lrkmll LI~W Ii

State Courts on theRoad to Change

by Pat Jones, Editor

Amendment 80 of the ArkansasConstitution is steering me state courts

beyond me status quo in important ways.As ofJuly 1,2001, it made judicial electionsnonpartisan and made all state judges circuitjudges with authority in cases of law andequity. Supreme Coun AdministrativeOrder 14 set a course for judicial circuits tofollow. It required that each of the state's 24circuirs formulate an administrative plan forredistriburing its caseloads and submit it tothe Court for approval. The Order allowsseveral months of preparation before fullimplementation of approved plans onJanuary 1,2002. In most circuits, the signsare that 'the devil's in the details.'

In its per curiam order issued June 28,200 I, the Supreme Court of Arkansasstated,

Among the 28 judicial circuits. mereare single-judge circuirs; multi-judge,one coumy, one courthouse circuits;multi-judge, one county, twOcourthouse circuits; multi-judge, twOcounty circuits; and multi-judge,multi-county. muhi-counhousecircuits.It goes withom saying that there arecritical staffing issues attendant to anyshifting of cases from one coun to

another. Even if all the theoreticalquestions were answered, we could notimmediately implement the necessarychanges because of time and financialconstraints. We must allow time forincumbent and newly elected circuirjudges to participate in judicialeducation programs to train them inareas of the law with which they arenor as familiar since all such judgesmust become available to try any eypeof case...Thus, we believe that a realistic targetdate for completing implementation

,\

t' ~\ I\ ,

of the new unified coun system shouldbe July I, 2003. On that date, weexpect aU circuit judges to be availableto try all "justiciable matters."

SHIfTING GEARSThe Judicial Education Committee of the

Arkansas Judicial Council, chaired by JudgeJohn Plegge (6th Judicial Circuit) is meetingthis summer ro develop a program to helpjudges bridge the gap between the type ofcaseload they heard prior to Amendment 80and what is becoming a more variedcaseload in the future. HaIf of the 110 trialjudges are already 'combination judges.'"For some judges, irs' going ro be easy andfor ochers it won't be as easy to become ajudge who wears multiple hats," saidSupreme Coun Justice Robert Brown. "Thetraining will have to be available."

Kay Palmer, Judicial EducationCoordinator, says a rr3111111g sessionappropriately called "Changing Hats" is setfor OClOber 16 and 17 in Fort Smith. Acomprehensive training program on juvenilelaw is also being planned, according 10 J.D.Gingrich, with others on chancery andcircuit Court issues to follow. "We'll have anadditional three days of basic training fortrial judges added on to the JudicialCollege," Gingrich says. The administrativeand managemenr issues will be dealt with by

January 1 with cross-disciplinary trainingconducted on a regional basis.PIT Srors

In the June 28th per curiam order(complete text available online atcou nS.state.ar. uslopi nionslopinions. html),The Supreme Coun providedadministrative plans for three judicialcircuits which were unable to reachagreement on a single plan and appoimedthree judges to administer them. They are:

6th Judicial Circuit Judge David Bogard,administrative judge

10th Judicial Circuit Judge Don Glover,administrative judge

II th Judicial Circuit Judge Leon Jamison,administrative judge

Four judicial circuits were directed to

resubmit their plans by August 15, 200 1after revisiting problems with thedistribution of their equity caseload: 1stJudicial Circuit, 15th Judicial Circuit, 19thW Judicial Circuit and nnd JudicialCirCUit. The 13th Judicial Circuit wasdirected (0 resubmit a plan which insuresrandom selection of judges in civil cases.

Approved with reservations aboutcaseload division were plans submitted bythese judicial circuits: 2nd, 3rd, 4th, 5th,7th, 12th, 14th, 16th, 17th, 18th E and20th. Plans from the 21 st and 23rd Circuitswere approved on the condition that issuesaround their allocation of cases are clarifiedby August 15, 200 I, and from the 8th NJudicial Circuit due to unique conflict ofIOterest ISSUes.

Only two plans received the SupremeCourt's unequivocal approval: 8th Sand9th W Judicial ircuits.

In the coming momhs, circuits will betuning up the engine, checking the tires andmaking sure the gas rank is full. By January1, 2002, Arkansas' new court system will beoff and running,_

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

I Arkansas Bar AssociationCLE Calendar

CoMMIJfER CoMPIJfERl)October 12. 2001

ew HorilOnsSherwood

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November 9, 2001ew HorizonsSherwood

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Judicial Advisory OpinionsThe Judicial Advisory Opinions are writtenand provided by the Judicial Discipline and

DislIbi/ity Commission_

Honorable Rice VanausdallHonorable Howard TempletonHonorable Vic FlemingApril 5, 2001RE: Advisory Opinion # 2001-02

Dear Judges Vanausdall, Templeron andFleming:

You have asked about the propriety ofbeing a "Judicial Fellow" of me Associationof Trial Lawyers of America. ATLA's letterro you, which you provided us, asks you to

"accept recognition by ATLA as a JudicialFellow." ATLA offers you a complimenrarysubscription to Trial magazine andcomplimenrary registration for ATLAconventions.

This Committee has previously dealtwith this issue in Advisory Opinions 99-04and 99-07. We conclude that a full-timejudge could not be a member of ATLA orany other organization that outwardly favorsone side or consisrently rakes one side inlegal issues. To do so would violare theprohibition against the "appearance ofimpropriety" contained in Canon 2 andmight raise doubt on the judge's ability to

decide impartiality as required by Canon 4.The prohibition applies regardless ofwhemer membership dues are required.

ATLA's letter recognizes our concerns. Its

closing paragraph states that "severalsupreme courts have ruled it unethical forjudges to join organizations that represent asingle side in legal disputes." However, wesee no difference in being a member ofATLA, a "Judicial Fellow of ATLA", or anyother appellation that ATLA may conceive.Such an ourward association does nOtencourage the integrity and independence ofthe judiciary.

We emphasize again tha, any judge mayreceive free publications from ATLA, mayaccept complimentary registration at ATLAconventions, and may speak at ATLAprograms. But public and ongoingidentification as a member, fellow, orsupporter, no matter what phrase is used, isinappropriate.

on being namedChairperson of the Board of Governors

of the Arkansas Bar Association

Cross, Gunter, Witherspoon & Galchus, P.C.

500 PRESIDENT CLINTON AVENUE, SUITE 200LITTLE ROCK, AR 72201 • (501) 371-9999

5401 ROGERS AVENUE, SUITE 200FORT SMITH, AR 72903 • (501) 783-8200

http://www.cgwg.com

Check it out!www.arkbar.com

1'01. ~6 In.l/Sommer iUUI Thr '\rkansasl,aIlW 19

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

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Attorney Kelli S. Cashion, an attorney

practicing primarily in North Little Rock,Arkansas, Bar ID #96006, has been suspended

from the practice of law within the jurisdictionof this State pursuant to Sections 7E(3)(c) and

8B(I)(c) of the Procedures of the Arkansas

Supreme Court Regulating ProfessionalConduct of Attorneys at Law (Procedures).

The Committee on Professional Conduct hasdirected that Ms. Cashion be placed on

interim suspension following it's review of a

Verified Petition presented by Stark Ligon,Executive Director of the Office of

Professional Conduct. The verified Petition

!<ELL! S. CASHIONNorth Little Rock

March 8, 200 I

has received an affirmative vote by a majority

of the Comminee. If and at such time as the

Committee may reinstate the attorney, youwill be provided notice of the reinstatementand the effective date thereof.

If you have any questions in this regard oryou have information evincing the attorney's

continued practice contrary to the status of his

license, please contact this office.

$1,695.00•Also Available:On Site TrainingDeeds & MortgagesCommitments & Policies

Attorney James Odell Clawson, an attorney

practicing law primarily in Little Rock, PulaskiCounty, Arkansas, Bar ID #90219, has been

suspended from the practice of law within thejurisdiction of this State pursuant to Sections7E(3)(a) and (b), and 8B(I)(a) and (b) of the

Procedures of the Arkansas Supreme Court

Regulating Professional Conduct of Attorneys

at Law. The Comminee on ProfessionalConduct has directed that disbarment action

will be instituted pursuant to the mandate ofSection 68(1), Procedures, based upon Mr.

Clawson's conviction of the criminal felony

offenses of Unering a Forged Instrument, Two(2) counts.

Please be advised that a suspended anorneyshall not be reinstated (Q the practice of law in

this State until the Arkansas Supreme Court

NOTICE OF SUSPENSION OFATTORNEY'S PRIVILEGE TO PRACTICELAW

JAMES ODELL CLAWSON, JR.Little Rock

April 16, 200 I

NOTICE OF ORDER OF DISBARMENT

TIMOTHY WAYNE TILLMAN

SherwoodApril 19,2001

Attorney Timothy Wayne Tillman,formerly of Sherwood, Pulaski County.

Arkansas, with Arkansas Bar ID #99052 hasbeen barred from engaging in the practice oflaw in this State for violation of the Arkansas

Model Rules of Professional Conduce. On

the recommendation of the Arkansas SupremeCourt Committee on Professional Conduct,

me Arkansas Supreme Coun entered an Order

of Disbarment of Timothy Wayne Tillmann

on April 19,2001.The Committee's Petition for an Order of

Disbarment was based upon violation ofModel Rules 8.4(b), 8.4(c) and 8.4(d) of the

Arkansas Model Rules of Professional

Conduct. The Petition and anached exhibitson file with the Clerk of the Arkansas Supreme

Court, reflect that during April 2001, the

Circuit Court of Pulaski County, Arkansas,

entered a judgment of disbarment against Mr.

Tillman, based upon his felony convictions of

three countS of Knowingly and WilfullyExposing Another to HIV, a violation of Ark.

Code Ann. 5-14-123, a Class A felony; sevencounts of Terroristic Threatening in the First

Degree, a violation of Ark. Code Ann. 5-13­301, a Class D felony; one count ofAbsconding, a violation of Ark. Code Ann. 5­54-131, a Class D felony, one count of Theftof Property, a violation of Ark. Code Ann. 5­36-103, a Class D felony; and one count ofFailure to Appear, a violation of Ark. CodeAnn. 5-54-120, a Class C felony.

If you have any questions in this regard oryou have information evincing the anorney's

continued practice contrary (Q the status of his

license, please contact this office.

·10 Tbe ,Irkansas LallIer II II \r.arkbar.l'om

demonstrated thar Ms. Cashion has engaged

in or is engaging in misconduct involving (1)

misappropriation of funds or property; and (2)

a substantial threat of serious harm to the

public or her diems.

Please be advised mat a suspended anorney

shaJI not be reinstated to the practice of law in

this Srare until the Arkansas Supreme Courr

has received an affirmative vote by a majoriey

of the Committee. If, and at such time as the

Commirree may reinstate the arrorney, you

will be provided notice of me reinstatement

and the effective date thereof.

If you have any questions in this regard or

you have information evincing the attorney's

continued practice contrary to the Status of his

license, please contact this office.

KEN ETH GERALD BRECKE RIDGEHot Springs

April 2, 2001

The formaJ complaint of misconduct arose

from the complaint of Kim Robinson. Ms.

Robinson employed Mr. Breckenridge, an

anorney practicing law primarily in Hor

Springs, Arkansas, to represent her and her

husband in a maHer rdaring to the purchase

and installation of a mobile home. In January

1999, Ms. Robinson met with Mr.

Breckenridge and discussed the maner. M r.

Breckenridge advised Ms. Robinson that she

had a good case and [hat a lawsuit for breach

of contract needed to be filed. Mr.

Breckenridge stared that his fee would be$3,500.00. Ms. Robinson paid $200 andagreed to pay the remainder over a period of

orne. Ms. Robinson made paymenr of

$900.00 on February 20. 1999. Mr.Breckenridge appeared ar Ms. Robinson's

home on March 12, 1999 and Ms. Robinsonpaid the remaining 52400.00 baJance.

During discussion with Mr. Breckenridge

on March 12. 1999, Ms. Robinson askedwhen rhe lawsuir would be filed. Mr.

Breckenridge assured Ms. Robinson that he

believed the lawsuit had aJready been filed bur

mat he would have to check with his secretary.

As Ms. Robinson had nor received any

documentation regarding the lawsuit by July

21, 1999. she went to me Garland CountyCourrhouse to see when the case had been

filed. Ms. Robinson discovered that rhere was

no record of a case having been filed on her

til\\}rI' IIisl'ipliDill'~' .\d ions

and her husband's behaJf. Ms. Robinson went

ro Mr. Breckenridge's office and was assured by

him that the lawsuit had indeed been filed not

in Garland County but in Faulkner County.

Ms. Robinson left Mr. Breckenridge's office

and drove to Conway, Arkansas to obtain a

copy of the lawsuir. After arriving at the

Faulkner Couney Courthouse, Ms. Robinson

discovered thar there was no record ofa lawsuit

filed on her behalf by Mr. Breckenridge. Ms.Robinson called Mr. Breckenridge from

Conway and spoke to him over the telephone.

During the telephone conversation, Mr.

Breckenridge stared thar the lawsuir had been

mailed to the clerk in Conway but it must not

have made it there yet. Ms. Robinson Stated

thar when she rerurned to Mr. Breckenridge's

office in Hot Springs, she expected a refund of

the fees paid or a copy of the lawsuit. Ms.

Robinson arrived at Mr. Breckenridge's office

and was provided with a lener from Mr.

Breckenridge. In the lerter, Mr. Breckenridge

stared that he had been working on the case

and that the file was ar his Mount Ida,

Arkansas, office. Mr. Breckenridge further

scated thar he would bring a copy of

everything to her ar her home the next day by

8:15 a.m.On July 22, 1999, Mr. Breckenridge failed

ro appear at Ms. Robinson's home at rhe

designated time. Ms. Robinson went ro Mr.

Breckenridge's office and was informed that he

was not in the office. Ms. Robinson returned

to the office at 9:30 a.m. and Mr.

Breckenridge was present. Mr. Breckenridge

advised Mr. Robinson that he had a meetingwith representatives from the mobile home

company at 2 p.m. thar afternoon. Ms.

Robinson was informed by Mr. Breckenridge

thar she must have misunderstood him earlier

as he did not tell her that a lawsui[ had actually

been filed and that he did not mink she would

actually drive there. A meeting was held on

July 22, 1999 with agents of the mobile home

company.

Ms. Robinson and her husband planned to

move to California. Prior to [he move, Ms.

Robinson went to Mr. Breckenridge's office to

copy items for her files. Ms. Robinson found

in the file an originaJ completed Arkansas

Manufactured Housing Commision

complaim form rhat she had provided Mr.

Breckenridge some rime earlier. Ms. Robinson

took me form and called the Commission.

According CO Ms. Robinson, the Commission

had nOt received the complaim form. Ms.

Robinson mailed the form (O the commission.

In her next conversation with Mr.

Breckenridge she asked him why the

complainr form had nor been mailed ro the

Commission. Mr. Breckenridge responded

that ir had been mailed and mat he personaJlydropped off a copy of the complainr to the

Commission office. Ms. Robinson terminated

Mr. Breckenridge's represenration of her and

her husband in me maner on August 6, 1999.

and demanded a refund of the fees pajd and

the rerum of aU documents and items in his

possessIOn.Following relocation to California, Ms.

Robinson employed a CaJjfornia arrorney ro

assisc wim the problems she and her husbandwere having with Mr. Breckenridge. Mr.

Breckenridge assured me California anorney

mat he would refund $1500 of the fees. No

response from Mr. Breckenridge was received

by the Robinsons or the CaJifornia attorney

assisring the Robinsons. Due to the inaction

of Mr. Breckenridge, the Robinsons have been

unable to sell me mobile home in Arkansas

due to irs current condition.

Mr. Breckenridge was served wim the

formaJ complaint, pursuanr to Section 5E,

Procedures of the Arkansas Supreme Coun

Regulating Professional Conduct of Anorneys

at Law (Procedures), on ovember 21, 2000.

Mr. Breckenridge failed to timely respond to

me formal complaint. His failure to respond

timely to the formal complainr constirures

admission of me faCtuaJ aJlegations contained

therein pursuanr to Section 51(4) of rhe

Procedures.

Upon consideration of the formal

complaint and the Arkansas Model Rules of

Professional Conduct, the Comminee on

ProfessionaJ Conduct finds:

I. That Mr. Breckenridge's conduct violated

Model Rule 1.3 when he failed to complete

negotiations with the mobile home company

for repair ro begin on his clients' home, and

when he failed to file suit against the mobile

home company as he stated would be done.

Model Rule 1.3 requires mat a lawyer act with

reasonable diligence and promptness in

representing a client.

2. Thar M r. Breckenridge's conduct violated

Model Rule 1.4(a) when he fuiled to keep hisclient, Kim Robinson, informed of the status

1'.1. lIl•. l/S•••er tUO I nl .\rkUlll LaWllr II

of her legal marter despite her requests andwhen he provided his client with falseinformation as to the status of her matter.Model Rule 1.4(a) requires that a lawyet keepa c1iem informed about the status of a matterand promptly comply with reasonablerequests for information.

3. That Mr. Breckenridge's conductviolated Model Rule 1.I6(d) when he failedto refund to his clients at least $1500 inunearned advanced payment of fees. ModelRule 1.16(d) requires that upon terminationof representation, a lawyer take steps co theextent reasonably practicable to protect theclient's interests, such as refunding anyadvanced paymenr of fee mat has not beenearned.

4. That Mr. Breckenridge's conducrviolated Model Rule 8.4(c) when he falselyadvised Mr. Robinson and a represenrative onher behalf that he would refund the unearnedadvanced fee paid to her and when he falselyadvised Ms. Robinson that he had filed alawsuit on her behalf. Model Rule 8.4(c)

requires that a lawyer not engage in conduct

involving dishonesty, fraud. deceit ormisrepresentation.

WHEREFORE, it is the decision andorder of the Arkansas Supreme CourtCommittee on Professional Conducr (hatKENNETH GERALD BRECKENRJDGE.Arkansas Bar ID o. 84015, be. and herebyis. SUSPENDED for THREE (3) MONTHSfor his conduct in (his matter. Thesuspension shall become effective as of thedate of the filing of this Order with the Clerkof the Arkansas Supreme Court. In addition,for his failure to timely respond to the formalcomplainr, Mr. Breckenridge is fined the sumof $500.00. pursuant to Section 51(1) and8A(2) of the Procedures of the ArkansasSupreme Court Regulating ProfessionalConduct of Artorneys at Law. Said fine to bepaid within thirty (30) days of the filing ofthis Order with the Arkansas Supreme CourtCletk.

MICHAEL EVEREn" TODDParagouldApril 6, 200 1

MI HAEL EVEREIT TODD. ArkansasBar 10 #78153, an attorney previouslypracticing law primarily in Paragould, Greene

41 n, ,lrkmllIJw),r wMlwk~ml.

La\\}PI' Disriplillill} .\l't ions

County, Arkansas, was convicted in rheUnited States District Court for the EasternDistrict of Arkansas in a case numbered4:99CR00061-04 GH. of the offenses ofAiding and Abetting in Mail Fraud, a Class DFelony, a violation of 18 U.s.c. 1341 and 2.and Aiding and Abetting in MoneyLaundering, a Class D Felony, a violation of18 U.S.c. 1957 and 2. On March 27. 2001.a Judgmenr and Commitment Order wasfiled. of record in the aforesaid criminalmatter, a me marked copy of which isappended hereto.

Pursuant to the mandate of Section 6B(I)of the Procedures of the Arkansas SupremeCourt Regulating Professional conduct ofAttorneys at Law (Procedures), a disbarmenraction shall be initiated against Mr. Todd as aresult of his felony conviction. Additionally,an interim suspension of Mr. Todd's privilegeto practice law under the authority of thisArkansas law license shall be imposedpursuant to Secrions 7E(3)(a) and (b), and8B(I)(a) and (b) of the Procedures.

It IS therefore ORDERED that

MICHAEL EVEREIT TODD be. and hehereby is, suspended for the practice of lawwithin this jurisdiction immediately upon thefiling of this Order wirh the Clerk of theArkansas Supreme Court.

Carl Frederick MoyerGreen ForestFebruary 28, 2001

The formal charges of misconduct uponwhich this Order is based arose from thecomplainr of Mary Harrell. Carl FrederickMoyer, an artorney primarily practicing inGreen Forest, Carroll County, Arkansas,assisted. Ms. Harrell in the preparation of abankruptcy petition.

On Seprember 9. 1999. Ms. Harrell soughtlegal counsel from Mr. Moyer regarding thefiling of a Chapter 7 bankruptcy petition. Onthat date, Ms. Harrell paid Mr. Moyer$575.00 by check for his full rerainer and allthe filing fees associated with the filing of lhebankruptcy petition. However, the check wasendorsed by Mr. Moyer and made payable to

Sabrina Hall, Mr. Moyer's assistant. Ms. Hall(hen cashed Ms. Harrell's check.Subsequently, Ms. Harrell completed theforms provided by Mr. Moyer and returned

them to him. Subsequently, no bankruptcy~cicion was ever flIed by Mr. Moyer in Ms.Harrell's behalf despite numerous telephonecalls co his office in which he and his Staffadvised that everything was okay.

Me. Moyer accepted service of thecomplaint by certified mail on October 30,2000. He failed to file any response.

Upon consideration of the formalcomplaint, response herein, and the ArkansasModel Rules of Professional Conducr. theCommirt~ on Professional Conduct finds:

I. That Mr. Moyer's conduct violated Rule1.3 of the Model Rules of when he agreed toaccept a $575.00 retainer and informationfrom Ms. Harrell in September, 1999 to fileher Chapter 7 Bankruptcy Petition and thenfailed to file her petition as of the date of thecomplaint. Augusr I, 2000. Model Rule 1.3requires that a lawyer act with reasonablediligence and promptness in representing aclient.

2. That Mr. Moyer's conduct violated Rule1.I5(a)(l) of rhe Model Rules when heaccepted a $575.00 retainer from Ms. Harrdlwhich represented all the arrorney's fees andassociated filing fees of the Chapter 7bankruptcy petition. He then endorsed thecheck (0 Sabrina Hall, his assistant, whopersonally cashed it, instead of placing theclient funds and me filing fees, in his clienttruS( account. Model Rule 1.15(a)(l)requires, in pertinent part, that all lawyershold property, with fUnds ofa client depositedand maintained in one or more identifiabletrust accounts in the state where the lawyer'soffice is situated.

3. That Mr. Moyer's conduct violated Rule1.16(d) of rhe Model Rules when he failed to

return to Ms. Harrell any of Ms. Harrell's$575.00 retainer which included anyunearned porcion of the arrorney's f~ or anyfiling fees when he failed to file her Chapter 7bankruptcy petirion. Model Rule 1.16(d)requires that upon termination ofrepresentation, an attorney shall take sreps to

the extenr reasonably practicable to protectme client's interests. such as giving reasonablenotice to the client, allowing time for

employmem of other counsel, surrenderingpapers and property (0 which the client isentitled and refunding any advanced paymentof fee that has not been earned.

WHEREFORE, it is the decision and

order of the Arkansas Supreme CourtCommirree on Professional Conduct that

CARL FREDERICK MOYER, Arkansas Bar#90067, be and hereby is SUSPENDED

FOR THREE MONTHS for his conducr inthis matter. This suspension shall be effective

as of the date of the fLIing of this Order withthe Clerk of the Arkansas Supreme Court.

JAMES R. NOBLINWynne

February 1, 2001

The formal charges of misconduct upon

which this Order is based arose from the

Complaint of Ruthie Moore. James R.Noblin is an anorney who practices primarilyin Wynne, Cross County, Arkansas. Ms.

Moore and her husband employed Mr.Noblin in April 1993 to help her in

difficulties Ms. Moore was having with CarlBaldwin who was installing kitchen cabinets

for Ms. Moore. Ms. Moore met with Mr.

Noblin and Mr. Noblin thereafter came toMs. Moore's home to see the status of the

work. On that day, May 5, 1993, Ms. Moore

paid Mr. Noblin $469.75, $400.00 in feesand $69.75 in filing fees, to represent her in

obtaining a refund from Mr. Baldwin. Ms.Moore believed that Mr. Noblin was working

on her case and, from time to time, wouldvisit with him at his office. Mr. Noblin would

inform Ms. Moore that he could not get time

in the Wynne court because of other coun

matters and would provide dates by which the

matter could be concluded. According to Ms.Moore, it was one excuse mer the other. Inlate 1999, Mr. Noblin srated that he washaving to deal directly with Mr. Baldwin asMr. Baldwin's attorney was no longer

representing him. Ms. Moore stated that shehas learned Mr. Noblin has left the Wynnearea and has relocated to Texas. Ms. Moore's

legal matter has not been concluded.

Service of the formal complaint by certified

mail, restricted delivery, to Mr. Noblin's

address on record with the Arkansas Supreme

Coun Clerk was attempted by the Office ofthe Executive Director. The mailing was

returned "unclaimed". Pursuant to Section

5E, Procedures of the Arkansas Supreme

Coun Regulating Professional Conduct ofAttorneys at Law (Procedures), a Warning

Order was publ ished in the newspaper of

La\\}et' Disl'iplillill'y ldiolls

general circulation within the locale of Mr.Noblin's address of record, the Forrest City

Times Herald. Mr. Noblin failed to respondto the Warning Order. His failure to respond

timely to the formal complaint constitutesadmission of the faCtual allegations contained

therein pursuant to Section 51(4) of theProcedures.

Upon consideration of the formalcomplaint and the Arkansas Model Rules ofProfessional Conduct, the Comminee on

Professional Conduct finds:

1. That Mr. Noblin violated Model Rule1.3 when, from May 1993 to the present, he

failed to take action on behalf of his clients to

actively pursue their legal matter. Model Rule1.3 requires that a lawyer act with reasonable

diligence and promptness in representing aclient.

2. That Mr. Noblin violated Model Rule

BA(d) by his failure to pursue civil remedieson behalf of his clients, who are now barred

from having their matter heard in court.

Model Rule BA(d) requires that a lawyer notengage in conduct that is prejudicial to the

administration of justice.WHEREFORE, it is the decision and

order of the Arkansas Supreme CourtCommittee on Professional Conduct that

JAMES R. NOBLIN, Arkansas Bar lD#88144, be, and hereby is, SUSPENDED

from the practice of law for three (3) months

for his conduct in this matter. The suspensionshall become effective upon the filing of this

Order.

GEORGE ROBIN WADLEY, JR.JonesboroFebruary 22, 200 I

The formal charges of misconduct uponwhich this Order is premised arose from the

Complaint of Donnie Wayne Ault. Mr. Ault

hired George Robin Wadley, Jr., an attorney

practicing primarily in Jonesboro, to cause a

contempt petition to be filed against Mr.Ault's ex-wife in connection with Me. Ault's

inability to have visitation with his minor son.

Mr. Wadley guored a fee of $600 ro Mr. AtJr.

During their initial meeting, Mr. Ault paidthe fee in full. Mter being paid, Mr. Wadley

assured Mr. Ault that he would begin work on

the legal maner. For the following six (6)weeks, Mr. Aulr attempted on numerous

occasions to contact Mr. WadJey, but wasunsuccessful. On August 10, 1999, before

Mr. Wadley filed any pleadings on Mr. Ault'sbehalf, Mr. Ault received a Motion forContempt from his ex-wife's attorney, Lena

Horn McCasdain. After being served with

this Motion, Mr. Ault delivered a copy of theMotion to Me. Wadley. Mr. Ault was assuredby Mr. Wadley that the matter would be taken

care of and addressed. At no time during thismeeting did Mr. Wadley request additional

fees to handJe a response to the Motion. Infact, he did not even mention fees, according

to Me. Auk In September, Mr. Aultcontacted Mr. Wadley to obtain information

about whether a reply had been received to

the response he assumed Mr. Wadley hadfiled. Again, Mr. Wadley assured Mr. Aultthat he was working on his legal matter for

him. Mr. Awt received no communicationfrom Mr. Wadley after this conversation. In

October 1999, Me. Ault went to Beebe to pickhis son up for visitation. When he arrived to

pick up his son, Mr. Aulr learned that a

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Default Judgment had been entered in favor ofhis ex-wife and he was unable to obtain hisson. During the following week, Mr. Aultattempted on numerous occasions to speakwith Mr. Wadley. He was unsuccessful untilthe end of the week. During theirconversadon, Mr. Wadley advised Mr. Aultthat he had filed a response and that a defaultwas not appropriate. Further, Mr. Wadleyadvised Mr. Ault that he would contact Ms.McCastiain to straighten everything our.Because of the siruation, Mr. Ault was unableto see or speak with his son on his son's fifthbirthday. On October 22, 1999, Mr. Ault wasadvised by Mr. Wadley that a court date hadbeen set for ovember 4, 1999. On

ovember 3, 1999, Mr. Aul, believed that hehad an appoimment with Mr. Wadley to

discuss the matter. Because of his pastexperience with Mr. Wadley cancelingappointments, Mr. Ault called to confirm theappointment prior to going to Mr. Wadley'soffice. Mr. Wadley's secretary advised Mr. Aultthat the meeting was canceled because Mr.Wadley had been called our of tOwn. Inaddition, she advised Mr. Ault that the courtdate had to be rescheduled. Throughout themonth of ovember, Mr. Ault explained toMr. Wadley on numerous occasions that hereally wanted to have a visitation schedule setwith his son because he had not been allowedto see his son since ptember 25, 1999. Mr.Wadley undertook no action in that regard onbehalf of Mr. Auk On December 6, 1999,Mr. Ault terminated Mr. Wadley's services.The following day, Mr. Wadley contacted Mr.Ault and advised that a court date had beenscheduled for December 16, 1999. to addressthe issues concerning visitation with Mr. Ault'sson. After that conversation, Mr. Wadley didnot contact Mr. Ault. Mr. Ault left severalmessages for Mr. Wadley bur ,hey all went

unreturned. Finally, on December 13, 1999.Mr. Ault and his sister contacted the LonokeCounty Courthouse and spoke with anemployee in Judge Whiteaker's office. Duringthe conversation, Mr. Ault learned thar noCOUft date had ever been set in the matter atMr. Wadley's request. When the conversationwas concluded, Mr. Ault again terminated Mr.Wadley's services. Mr. Wadley, through hisoffice manager. returned the $600 to Mr. AukIn addition, Mr. Ault received what waspurporred to be Mr. Wadley's file in Mr. Ault's

-II nr .lrkllID LaKjrr KKW.ark~ar.ll.

til\\}CI' Disriplinan' ,\l'tions

marter. Mr. Ault hired another attorney.Barbara Elmore, to pursue his matter for himand to investigate what action. if any. Mr.Wadley had raken on Mr. Ault's behalf Ms.Elmore filed a Motion to Set Aside DefaulrJudgment on Mr. Ault's behalf. However,because the COlift and the opposing counsel,Ms. McCasdain, never received an Answer tothe Motion from Mr. Wadley on behaJf of Mr.Ault, the Coun denied the Motion.

Mr. Wadley was served with the formaJcomplaint. pursuant to Section 5E, Proceduresof the Arkansas Supreme Court RegulatingProfessional Conduct of Attorneys at Law(Procedures), on March 29, 2000. Mr.\Xladley failed ro respond to the formalcomplaint. His failure to respond timely to

the formal complaint constitutes admission ofthe faccual allegations contained thereinpursuant to Section 51(4) of the Procedures.

Upon consideration of the formalcomplaint and the Arkansas Model Rules ofProfessional Conduct. the Committee onProfessional Conduct finds:

1. That Mr. Wadley's conducr violatedModel Rule 1.1 when he failed '0 file anypleadings on Mr. Ault's behaJf in connectionwith his visitation with Mr. Aulr's minor sonand when he failed to file a Response to theMotion for Contempt and Motion to ModifyDecree filed by Mr. Ault's ex-wife, even thoughMr. Ault delivered the Motion to Mr. Wadleythe day after he was served. Model Rule 1.1re<Juires. in pertinent part, that a lawyerprovide competent represemation to a client,including the thoroughness and preparationreasonably necessary for the representation.

2. That Mr. Wadley's conduct violatedModel Rule 1.2(a) when failed to file acontempt petition against Mr. Ault's ex-wife inconnection with Mr. Ault's inabiliry to havevisitation with his son and when he failed to

respond to the Motion for Contempt filedagainst his client, Mr. Ault. Model Rule 1.2(a)requires, in pertinent parr, that 3 lawyer abideby a client's decisions concerning theobjectives of representation and consulr withthe dient as to the means by which they are tobe pursued.

3. That Mr. Wadley's conduct violatedModel Rule 1.3 when he failed to file aresponse to the Motion for Contempt whichwas served on his dient. Mr. Auk Model Rule1.3 requires that a lawyer act with reasonable

diligence and prompmess In represennng adiem.

4. That Mr. Wadley's conduct violatedModd Rule l.4(a) when he failed (0 rerum thenumerous messages left for him by Mr. Aultrequesting information about Mr. Aule's legalmaner and when he never advised Mr. Aultthat he had failed to respond to the MOtion forComempt and had failed to comact Mr. Ault'sex-wi fe's counsel about the legal maner.Model Rule 1.4(a) requires that a lawyer keepa diem reasonably informed about the srnrusof a maner and promptly comply withreasonable requests for information.

5. That Mr. \Vadley's conduct violatedModel Rule 8.4(c) when, on more than oneoccasion. he falsely advised Mr. Ault that courthearings were scheduled in the legal manerinvolving Mr. Ault's ex-wife and when hef.l1sely advised Mr. Aulr ,hat he had respondedto the Motion for Contempt on Mr. Ault'sbehalf. Model Rule 8.4(c) requires. inpertinem parr, that a lawyer not engage inconduct involving dishonesty ormisrepresenrntlon.

6. That Mr. Wadley's conduct violatedModel Rule 8.4(d) since his failure ro file aresponse to the MOtion for Contempt resultedin a Default Judgment being emered againsthis diem, Mr. Ault, required that Mr. Aultinitiate attempts to have the Default Judgmemset aside and caused a lengthy delay in Mr.Ault's atte.mpts to establish a regular visitenionschedule with his son. Model Rule 8.4(d)requires that a lawyer not engage in conductthat is prejudiciaJ to the administradon ofjustice.

WHEREFORE, it is the decision and orderof the Arkansas Supreme Court Committee onProfessional Conduct ,hat GEORGE ROBIWADLEY, JR., Arkansas Bar ID #87180, be,

and hereby is, SUSPENDED from thepractice of law for a period of 0 E (I) YEARfor his conduct in this maner. The suspensionshaJl become effective as of the date of thefiling of this Order.

GEORGE ROB! WADLEY, JR.

JonesboroFebruary 22, 200 I

The formaJ charges of misconduct uponwhich this Order is premised arose from theComplaint of Christopher Thomas. Director

of the Office of Professional Programs of meSupreme Court of Arkansas. Mr. Thomas alsoserves as the Secretary CO the Continuing LegalEducation Board (CLE Board). Mr. Thomasreported that on ovember 20. 1999. meCLE Board suspended the license to practicelaw in Arkansas of various attorney because of

the failure co meer the continuing legaleducation requirements. One of me attorneys

suspended was George Robin \Vadley, Jr., anattorney practicing primarily in Jonesboro.Mr. Wadley comacred Mr. Thomas' office

sometime after his license was suspended to

inquire aoom being reinstated. On January10. 2000. a Petition for Reinstatemenc wassent to Mr. Wadley. As of March 18, 2000,Mr. Wadley had not rewrned the completedPecirion. As a result, Mr. WadJey's license to

practice law remained suspended. In the

course of his employment, Mr. Thomasreceived correspondence from Carol V.Bohannan, Hearing Judge, Arkansas POSt

Prison Transfer Board. In the correspondence,Ms. Bohannan advised that on February 7,

2000, Mr. Wadley appeared at a revocationhearing on behalf of a parolee. Prior to the

start of the hearing, Ms. Bohannan inquired ofMr. Wadley's licensure status. Mr. Wadley

advised Ms. Bohannan that he had taken care

of the situation with his ClE deficiency and

that his license was in good standing. Ms.Bohannan subsequently learned that Mr.Wadley's license was still suspended because he

lacked 10.75 hours to meet the required

amount of ClE hours, had nor paid the S200

deficiency fee and had not filed a petition forreinstatement. Upon receipr of theinformarion from Ms. Bohannan, Mr.Thomas conferred with Phil Hout, Chair of

the CLE Board, who joined with Mr. Thomasin reponing the information to the

Committee.Mr. Wadley was served with the formal

complaint, pursuam to Section 5E, Procedures

of the Arkansas Supreme Coun Regulating

Professional Conduct of Attorneys at Law

(Procedures), on March 29, 2000. Mr.Wadley failed to respond to the formal

complaint. His failure to respond timely CO

the formal complaint constitU[es admission of

rhe facrual allegations contained therein

pursuanr ro Secrion 51(4) of the Procedures.

Upon considerarion of the formal

complaim and the Arkansas Model Rules of

til\\Jrl' IJisl'iplinill} .\(,(ions

Professional Conduct, the Committee on

Professional Conduct finds:I. That Mr. Wadley's conduct violated

Model Rule 5.5(a) when he appeared beforethe Arkansas Post Prison Transfer Board and

represemed a diem in a revocation hearing ata time when his license to practice law in

Arkansas was suspended. Model Rule 5.5(a)requires that a lawyer not practice law in a

jurisdicrion where doing so violates the

regulation of the legal profession in thatjurisdiction.

2. That Mr. Wadley's conduct violatedModel Rule 8.4(c) when he advised CarolBohannan on February 7, 2000 tha, he hadraken care of the siruation with the CLEBoard's suspension and when he told Ms.

Bohannan, prior to a hearing before the paroleboard that his law license was in good

standing. Model RuJe 8.4(c) requires, in

pertinent parr, thar a lawyer not engage inconduct involving dishonesty or

misrepresentation.3. That Mr. Wadley's conduct violated Rule

3 of the Arkansas Rules for MinimumContinuing legal Education, incorporated

into the Arkansas Model Rules pursuant to

Section 1£(6) of the Procedures, when hefajled to complete the minimum twelve (12)

hours for continuing legal education for the

reporting period July I, 1998, through June30, 1999. without being excepted from doing

so. Rule 3 of the Arkansas Supreme CourtRules for Minimum Cominuing Legal

Education requires, in pertinem pan, thatevery member of the Bar ofArkansas, except asmay be otherwise provided by these rules, and,

excepting those attorneys granred voluntaryinactive starus by the Arkansas Supreme CourtCommittee on Professional Conduct,

complete rwe!ve (12) hours of approvedcontinuing legal education during each

reponing period.\XlHEREFORE, it is the decision and order

of the Arkansas Supreme Coun Committee on

Professional Conduct that GEORGE ROBINWADLEY, JR., Arkansas Bar ID #87180, be,and hereby is, SUSPENDED from thepractice of law for a period of ONE (I) YEARfor his conduct in this marter. The suspensionshall become effective as of the date of the

filing of this Order.

GEORGE ROBI WADLEY, JR.JonesboroFebruary 22, 200 I

The formal charges of miscondua upon

which this Order is premised arose from theComplaint of Donald E. Barber. In December

1997, Mr. Barber hired George Robin Wadley,Jr.. an attorney practicing primarily inJonesboro, to represent him in a divorce

proceeding and to seek custody of hisdaughter. Mr. Barber paid Mr. Wadley the

agreed upon fee of SI500 on December 29,1997. Mr. Wadley did nOt take any action onMr. Barber's behalf after the fee payment was

made. Mr. Wadley relocated his office burgave Mr. Barber no notice of this fact. Mr.

Barber learned of the relocation by way of asign on the front door of Mr. Wadley's old

office. In addition, Mr. Barber was unable to

reach Mr. Wadley by telephone because Mr.Wadley's relephone had been disconnected.

Because of his inability ro talk with Mr.Wadley, Mr. Barber sent him a lerrer dated

February 19, 1998, terminating Mr. Wadley'sservices and requesting return of the $1500.

Further, Mr. Barber requesred the return of thedocumentation that he had provided to Mr.

Wadley during their only meeting. Mr. Wadleydid nor rerum the funds nor did he return the

conrenrs of the file. In fact, Mr. Wadley neverconracted Mr. Barber at all. Mr. Barber hired

other counsel and a divorce was granred to

him on May II, 1998. Mr. Barber's new

counsel also sued Mr. Wadley for the $1500

paymem. Mr. Wadley was served burdefaulted in the lawsuit. Mr. Barber has aS1500 judgment against Mr. Wadley whichMr. Wadley has made no efforr to satisfy.

Mr. Wadley was served with the formalcomplaint, pursuant to Section 5E. Procedures

of the Arkansas Supreme Coun RegulatingProfessional Conduct of Attorneys at Law(Procedures), on March 29, 2000. Mr.Wadley failed [0 respond ro the formal

complaint. His failure to respond timely to

the formal complaint constitures admission of

the factual allegations contained therein

pursuant to Secrion 51(4) of the Procedures.

Upon consideration of the formalcomplainr and the Arkansas Model Rules of

Professional Conduct, the Committee on

Professional Conducr finds:I. Thar Mr. Wadley's condun violated

\'ol.l6 No.l/Sommer tOOl The ,Irkausas LaWler 15

tim}III' IIisriplillill'f .\l'tiOIlS

Model Rule 1.1 when he failed to exhibit anyof the thoroughness or preparation required inorder to pursue a divorce action on Mr.Barber's behalf. Model Rule 1.1 requires, inpertinent pan, that a lawyer providecompetent representation to a client,

including the thoroughness and preparation

reasonably necessary for the representation.2. That Mr. Wadley's conduct violated

Model Rule 1.2(a) when he F.1iled ro putSue adivorce and seck custody of Mr. Barber'sdaughter, although those were the objectives of

his represenration of Mr. Barber. Model Rule

1.2(03) requires, in peninem parr, that a lawyerabide by a dienr's decisions concerning theobjectives of representation.

3. That Mr. Wadley's conduct violatedModel Rule 1.3 when he F.1iled ro file acomplainr for divolU on Mr. Barber's behalffrom the time he was paid until his serviceswere terminated twO (2) months later. ModelRule t.3 requires that a lawyer act withreasonable diligence and promptness inrepresenring a client.

4. That Mr. Wadley's conduct violatedModel Rule 1.16(d) when he F.1iled ro rerumthe unearned portion of the advance paymentof fee after Mr. Barber terminated his servicesand when he failed to return the contents ofMr. Barber's file to him after his services wereterminated. Model Rule t .16(d) requires, inpertinent pan, upon termination ofrepresentation, that a lawyer cake steps to theextent reasonably practicable to protect acliem's interests, such as surrendering papersand property to which the client is enrirled andrefunding any advance payment of fee that hasnot been earned.

5. That Mr. Wadley's conduct violatedModel Rule 8A(d) b<cau.s< he F.1iled to timelysatisfy the Judgment that Mr. Barber obtainedagainst him on Novembet 20, 1999. ModelRule 8.4(d) requires that a lawyer not engagein conduct that is prejudicial to theadministration of justice.

WHEREFORE, it is the decision and orderof the Arkansas Supreme Court Commirree onProfessional Conduct thar GEORGE ROBIWADLEY, JR., Arkansas Bar ID '87180, be,and hereby is, SUSPENDED from theptactice of law for a period of 0 E (I) YEARfor his conduct in this marrero The suspensionshall become effective as of the date of thefiling of this Order.

Frank

Hamlin

Bob

Hornberger

SidMcCollum

JackDavis

INCMuseum Center. Suite 10. 500 East Markham Street

Little Rock. AR 7220 I501-376-2121

I 104 South Walton Blvd.. Suite 20, Bentonville, AR 72712SOI-Z7I-ZZ37

NOTICE OF REPRIMAND

CHARLIE LEE RUDDHot SpringsApril 20, 200 I

423 Rogers Avenue, Suite 101, Fort Smith, AR 72902501-783-1776

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

II Tie lrkulll LaWler WM1Wk~ar.cI.

practJcJng law primarily in Hot Springs.

Arkansas. for the purpose of representing herin recovery of damages from a dog bite. InSeptember 1998, Ms. On met with Mr. Ruddand discussed the mance at length. As themaner did not involve a large amount ofdamages. Ms. On questioned Mr. Ruddwhether she should sue the owner of me dog.

Kelly Mitchell, in small claims court herself.Mr. Rudd stated m Ms. Ott that he would

represem her on a contingency fee basis.

There was nor a written fee agreement.Following the meeting, Mr. Rudd prepared

a lener and mailed it co Ms. Mitchell. The

lener dated September 24, 1998, requestedthat Ms. MircheJl comacr Mr. Rudd anddiscuss settlement within two days of receiptof the (cuef or action to protect Ms. On's legal

remedies would be undertaken. Ms. Mitchell

did respond to the lerrer but no agreemenr

could be reached. Upon being informed of thediscussion with Ms. Mitchell, Ms. Orr

informed Mr. Rudd that legal proceedings

should begin in a speedy manner.Following the last conversation with Mr.

Rudd, Ms. Orr placed telephone calls to his

office (Q discuss the status of her case. Ms. Ott

was informed on different occasions that Mr.Rudd was out of the office due to illness, out

for the day, or that he had gone to Texas for

three weeks. Ms. Ott did make an

appointmenr to meet with Mr. Rudd on

January 27, 1999.Ms. Orr met with Mr. Rudd and again

suggested that she should file suit herself

against Ms. Mitchell in small claims court.Mr. Rudd affirmed to Ms. Orr mat he wasgoing to represent her in the matter. Ms. Ottwrore Mr. Rudd a check in the amount of

575.00 for filing fees.Following the January 1999 meeting, Ms.

Orr placed telephone calls to Mr. Rudd and,on one occasion, spoke with him. During the

discussion, Mr. Rudd stated thar he had nor

obtained a couer date and had been really busy

with other cases.

In July 1999, Ms. Orr placed a telephonecaB to Mr. Rudd's office and spoke to his

secretary. Mr. Rudd was not in his office

during the telephone call but Ms. Ottinformed Mr. Rudd's secretary that shebelieved he was roo busy to represent her and

requested that M r. Rudd return to her the

$75.00 filing fee. Ms. Orr has not received the

Lil\\JI'I' ltisl'ipliDill'r .tl'tions

575.00 filing fee.As ofJune 7, 2000, the recotds of the Hot

Springs Municipal Coun Clerk and theGarland County Circuit Coun CJerk did notreflect any marrer having been filed on Ms.

Orr's behalf by Mt. Rudd.Mr. Rudd was served with me formal

complaint, pursuant ro Section 5£, Procedures

of the Arkansas Supreme Court RegulatingProfessional Conduct of Attorneys at Law

(Procedures), on November 14. 2000 and aresponse from Mr. Rudd was due on or before

December 6, 2000. No timely response wasreceived within the twenty day period for

which to file a response. Mr. Rudd didprovide an untimely response to the formal

complaint.Upon consideration of the formal

complaint, the untimely response, and the

Arkansas Model Rules of ProfessionalConduct. the Committee on Professional

Conduct finds:1. That Mr. Rudd's conduct violated Model

Rule 1.3 when, from September 1998 through

June 2000. he failed to iniriate legalproceedings on behalf of his client, Sue Ellen

Orr. Model Rule 1.3 requires that a lawyer act

with reasonable diligence and promptness inrepresenting a client.

2. That Mr. Rudd's conduct violated ModelRule 1.4(a) when, despite Ms. Ott'S numerous

telephone calls, Mr. Rudd failed to return anytelephone calls. Model Rule I.4(a) requires

[hat a lawyer keep a client reasonably informed

abom the starus of a matter and promptly

comply with reasonable requests forinformation.

3. That Mr. Rudd's conduct violated Model

Rule 1.5(c) when he failed to place acontingent fee agreement in writing. ModelRule 1.5(c) requires that a contingent fee

agreement be in writing and state the methodby which the fee is to be determined, includingthe percentage or percemages that shall accrue

to the lawyer in [he evem ofsenlement, trial or

appeal. litigation and other expenses to bededucted from the recovery, and whemer such

expenses are to be deducted before or after the

contingent fee is calculated.4. That Mr. Rudd's conduct violated Model

Rule I.16(d) when, after being informed thar

he was too busy to represent her and requested

to teturn the filing fees to her, he failed to

forward the unused filing fee to her. Model

Rule 1.16(d) requires [hat upon termination

of representation. a lawyer take steps to theextent reasonably practicable to proteer mec1ieor's interests, such as refunding any

advanced payment of fee that has nor been

earned.WHEREFORE, it is the decision and order

of the Arkansas Supreme Coun Committee onProfessional Conduct thar CHARLIE LEERUDD, Arkansas Bat ID #89087, be, andhereby is, REPRlMA DED for his conduct

in mis marrero For his failure to timely

respond to the formal complaint, Mr. Rudd isfined the sum of $250.00, pursuant to Section51(1) and 8A(2) of the Procedutes of rheArkansas Supreme Court Regulating

Professional Conduct of Attorneys at Law.Said fine to be paid within thirty (30) days of

the filing of this Order with the ArkansasSupreme Court Clerk.

FRED HART, JR.Little Rock

March 15,2001

The formal charges of misconducr upon

which this Order is premised arose out of the

records of the United Stales District Court forthe Eastern District of Arkansas. The Court's

records reflected that on ovember 2. 1998,

Fred Hart, Jr., an attorney practicing primarilyin Little Rock, was convicted by a jury on two

counts of violations of 18 U.S.c. 248, theFreedom of Access to Clinic Entrances Act

("FACE Act"). The Judgmenr of Convictionwas entered February 11. 1999. and affirmedby the United States COUrt of Appeals, EighlhCircuit, on May I, 2000.

Mr. Hart was and remains, a self-declared

aori·abortion activist, who has regularlyengaged in peaceful protests outside abortionclinics. On Seplember 24, 1997, Mr. Hartrented two Ryder trucks. Mr. Hart parked the

trucks in the driveways of two Little Rock

abortion clinics, the Women's Community

Health Center and the Little Rock Family

Planning Services ("the clinics"). The

placement of the trucks coincided with a visirfrom Presidenr Clinton to Little Rock. Each

truck was unattended and carried no

indication as to irs purpose for being there.

On the morning ofSeprember 25,1997,employees of the clinics arrived at their places

of employmem and were alarmed by the

l'ul.l6 Il'o.l/Summrr tOOl 1'hr Ilrkmasl,all)rr Ii

presence of the trucks. They were reminded of

the 1994 bombing of the Murrah FederalBuilding in Oklahoma City. Oklahoma. whichinvolved a Ryder truck. Fearing the trucks

contained bombs, the employees left the

clinics and notified the police. The areas

surrounding the clinics were evacuated,

including neighboring establishmems. The

bomb squad was called to investigate. It was

determined that the trucks contained no

explosive materials. Based upon mese facts,

Mr. Hart was indicted on [WO counts of

violating the FACE act and was subsequently

convicted by a jury on bOth counts. After the

jury verdict, the Honorable John F. Forester,

United States Magistrate for the Eastern

District of Arkansas, sentenced Mr. Hart to

four years probation, the first twelve months

of which was to be served in home detemion;

200 hours of community service; and a special

assessmenr of $50.00.

Upon consideration of the formal

complaint, the response thereto, and the

Arkansas Model Rules of Professional

Conduct, the Committee on Professional

Conduct finds:

1. That Mr. Han's conduct violated Model

Rule BA(b) when a Judgment of Conviction

was entered of record finding Mr. Hart guilty

of [wo federal criminal violations of the

Freedom of Access to Clinics Act, 18 United

States Code, Section 248, a Class A

Misdemea.nor, based. upon his placement of aRyder truck at me entrances of the \'(Iomen's

Community Health Cenrer and the Little

Rock Family Planning Services, both of Little

Rock, to intenrionally intimidate and interfere

with persons seeking the services of the twO

organizations and with persons providing the

organizations' services. Model Rule 8A(b)

requires, in pertinent part, that a lawyer not

commit a criminal act that reflects adversely

on the lawyer's fitness as a lawyer.

WHEREFORE, it is the decision and order

of me Arkansas Supreme CoUf( Commirree on

Professional Conduct thar FRED HART. JR.•Arkansas Bar ID #75055. be. and hereby is.REPRJMANDED, for his conduct in thismarrero

48 ne lrkulil Llwyer WMlI'.lfklm'l

til\\JPI' Uisriplinal} .\ft ions

CARL FREDERJCK MOYERGreen Forest

February 7. 2001

The formal charges of misconduct upon

which this Order is based arose from the

complaint of Michael and Judy Mayfield. Carl

Frederick Moyer, an attorney primarily

practicing at the time of the conduct alleged

herein in Green Forest, Carroll County,

Arkansas, now practicing in MonticeUo, Drew

County, Arkansas, was employed by Mr. andMrs. Mayfield on February 12.2000. to file a

hapter 7 bankruptcy petition on their behalf.

On February 12. 2000. Mr. and Mrs.M,yfield paid Mr. Moyer a $700.00 rerainerrepresenring a $500.00 anorney's fee and

$200.00 in costs. Mr. Moyer acknowledged

receipt of the retainer. Thereafter, the

M,yfields promptly completed the paperworkrequired by Mr. Moyer and left ir at his office.

However, as ofAugusr 4,2000, no bankruptcy

pelition had been filed by M r. Moyer for tbe

Mayfields. Mr. Moyer attribured the delay in

filing the petition m the fact that he did nor

have one of the required forms m file the

perition, but subsequently secured the form

from a Harrison law firm. Then, on March I,

2000, Mr. Moyer was employed as a deputy

prosecuting arrorney for the 10th Judicial

DiStrict and relocated ro Monticello, Arkansas.

Despite numerous requests, Mr. Moyer has

refused to refund the retainer paid by Mr. and

Mrs. Mayfield. Mr. Moyer admitted that he

had a dury to refund the unearned portion of

the legal fees to the Mayfields since he was no

longer able to represent them in pursuit of

bankruptcy relief. However, he explained that

since the Mayfields filed suit against him in

the BerryvilJe Municipal Coun, be elecred to

allow the Court m determine the portion of

the fees to be refunded. He stated that sine(:

he received me formal complainr herein, he

had decided ro refund all of the legal fees andfiling fees paid by the Mayfields. forthwith.regardless of the pending Court action.

However, Mr. Moyer did not supply the

Commirree wim proof mat he had done so.

Upon consideration of the formal

complainr. response herein, and the Arkansas

Model RuJes of Professional Conduct, the

Committee on Professional Conduct finds:

I. That Mr. Moyer's conduct violated

Model Rule 1.3 when he failed to file a

Chapter 7 Bankruprcy Peririon on behalf ofMichael and Judy Mayfield despite being hiredto do so on February 12. 2000. Model Rule1.3 requires mar a lawyer ace with reasonable

diligence and promptness in representing a

client.

2. Thar Mr. Moyer's conduct violated

Model Rule 1.16(d) when he failed ro refundany unearned anomer's fees and filing fees to

his clients. Michael and Judy Mayfield, afr:erthey requested (he refund following his failure

to timely file their Chapter 7 bankruprcypetition. Model Rule 1.16(d) requires, in

pertinent part. upon termination of

repr~nra[ion that an anomq rake steps to

the extent reasonably practicable to pcorecr me

client's interests. such as refunding anyadvanced paymenr of fee that has not been

earned.

WHEREFORE, it is the decision and orderof the Arkansas Supreme Coun Commi(rce on

Professional Conduct that CARL

FREDERJCK MOYER, Arkansas Bar#90067. be and hereby is REPRJMANDEDfor his conduct in this marrero In addition,

Mr. Moyer is ordered to pay Michael and Judy

Mayfield Seven Hundred Dollars ($700.00) inrestitution pursuant to Section 8A(3) of me

Procedures. The restitution shall be paid no

later rhan thirty (30) days from the filing ofmis Order wim me Arkansas Supreme CoUrt

Clerk.

JEROME M. REPHAHot Springs

February 8, 2001

The formaJ charges of misconduct upon

which this Order is premised arose from the

Complaint of Eleanor R. Crisml, President of

DonaJd F. Rubin, Inc., a Florida corporation.

The corporation owned and held certain

judgments against a Mr. and Mrs. James

Smith. The judgments were recorded in me

public records of Garland County, Arkansas.

On February 3. 1999. Ms. Crisrol wasconraaed by Jerome M. Rephan, an arromey

practicing law in Hor Springs, Arkansas. Mr.

Rephan informed Ms. Cristol that he was

representing Mr. and Mrs. Smith and was

calling to determine whar amount the

corporation would accept from the: Smims in

order to satisfy me judgmencs.

During the discussion, Ms. Crisrol agreed

to serde rhe judgments for $17.542.31. rheoriginal face value. Ms. Cristol agreed towa.ive: the several years of accumulated interest,

conditioned on me funds being held in escrow

by Hot Springs Tide Company on thecorporation's behalf. In addirion, me funds

were to be provided to Ms. Cristol byovernight delivery on February 5. 1999. Mr.Rephan confirmed this agreement in writingon February 4, 1999. The written agree-mem

sene by Mr. Rephan is not dar on who was

responsible for sending the funds ro Ms.

Cristol by overnight delivery. Based upon theconditions and Mr. Rephan's confirmation of

the same, Ms. Criscol signed the agreement corelease liens which had been prepared by Mr.

Rephan. Following his receipt of the signed

agreemenr, Mr. Rephan advised the tidecompany but cannot confirm that me ride

company was advised that me funds were to besent to Ms. Cristol by overnight delivery.

According to Mr. Rephan, both in his writtenresponse and his testimony before the

Committee on Friday, January 19, 200 I, his

secretary accepted me check from the title

company made payable to Ms. Cristol on

February 4th or 5th. Mr. Rephan advised mat

he did not request delivery of the check to hisoffice and was surprised when he realized it

was there. Once he received the check, Mr.

Rephan sent Ms. CristoI a letter and advisedher that he was holding the funds in his file.He also demanded a fee for his "legal services"

in collecting and transmitting the funds to her.

According to Mr. Rephan, he never requested,

authorized or anticipated receipt of thosefunds. Mr. Reph:ln asserred mat he did notknow why the funds were sent directly to him.

His letter to Ms. Cristol acknowledged that hehad never discussed his representation withMs. Cristol nor had she ever mentioned

retaining him. It was Mr. Rephan's asKrtionmat he wrote the letter to Ms. Cristol because

he did nor wanr to underrake any personal

transfer responsibiliries without the

corporation's approval and direction. Mr.

Rephan also stared that Ms. Cristol was free to

decline his employment. Since she declined touse his services, he did not charge her a fee. It

was his explanation th~t he required

employment prior to underraking duties

regarding the transfer of funds. Mr. Rephanacknowledged that he ultimately returned the

funds to the title company and that they were

LilWrrl' Ilisriplimll} .\ft inns

then forwarded to Ms. Cristo!. Mr. Rephanhad no explanation to the Committee why he

did not rerum the check to the tirle companywhen he first received it other than he did not

want to be personaJly responsible for the fundsif they did not reach Ms. Cristo!.

Mr. Rephan still maintained that his actions

were appropriate. He believed thar if he hadsent her the check, he would have been actingwithout authoriey. Mr. Rephan also asserted

mat it was his duey to inform Ms. Cristol of

his receipt of the funds.Upon consideration of the formal

complaint, the response thereto, the testimony

of Mr. Rephan at the hearing before the

Committee and the Arkansas Model Rules ofProfessionaJ Conduct, the Committee on

ProfessionaJ Conduct unanimowly finds:1. That Mr. Rephan's conduct violated

Model Rule 8.4(d). to wit: (i) He attempted roobtain an attorney's fee from Ms. Cristol who

was not his client but a parey adverse to hisclients; (ii) His conduct caused Ms. Cristol to

have to contact another attorney because shefelt her rights were being breached; and, (iii)

His attempt to obtain a fee from Ms. Cristolcaused a delay for the corporation in obtaining

irs agreed reduced judgment amount. ModelRule 8A(d) requires mar a lawyer not engage

in conducr that is prejudicial TO the

administration of justice.WHEREFORE, ir is the unanimow

d«ision and order of the Arkansas SupremeCouer Committee on ProfessionaJ Conduct

rhatJEROME M. REPHAN. Arkansas Bar ID#79240 be. and hereby is. REPRlMANDEDfor his conduct in this matter. In addition,pursuant TO Section 8A(2) of the Procedures

of the Arkansas Supreme Court ReguJatingProfessionaJ Conduct of At(orneys at Law, theCommittee imposed a fine in the amount of$250.00. The fine is due and payable in rheOffice of ProfessionaJ Conduct no later (han

rhirty (30) days from the filing of this Order.

RlCHARD JARBOEWalnur RidgeApril 16.2001

The formaJ charges of misconduct uponwhich mis Order came (0 me attention of the

Committee due to tesrimony given in U.S. v.George Nicholas "Nick"Wilson, er aJ, Case

o. LR-CR-99-61. Richard Jarboe is an

attorney practicing in WaJnut Ridge. Lawrence

County. Arkansas.On March 9. 2000. Mr. Jarboe tesrified in

Federal Coun in rhe above styled case fullycooperating with the authorities without any

plea agreement, immuniry or pretrialdiversion. He restified that in the summer of

1995, Murrey Grider approached him (0 dochild support work for him in Randolph and

Lawrence Counties. Mr. Grider compensatedMr. Jarboe for Mr. Jarboe's work with a flar

monthly fee of $1.250.00. Later. the liarmonthly fee was increased (0 $1,500.00.

Subsequently, then Srate Senator Nick Wilsonmet with Mr. Jarboe. Mr. Wilson informed

Mr. Jarboe that he would be receiving a checkfor his work and a bill from Senator Wilson for

"compliance." Mr. Jarboe then received

monthly checks from the Arkansas Office ofChild uppon Enforcement (OSCE) forbetween $5.000.00 to $6,000.00. Mr. Jarboewould deposit the checks inco his client trust

account, pay himself his monthly flat fee andforward the remainder to Mr. Wilson. In

March, 1997, Mr. Jarboe received an

additional monrhly cheek for March ftomOSCE for $2,740.00. Mr. Wilson instrucredMr. Jarboe to pass the money on to himwithout a deduction by Mr. Jarboe. Mr.

Jarboe complied wirh Mr. Wilson's

instructions.Mr. Jarboe affirmatively stated in his

response (hat he had been approached by Mr.

Grider to assist Mr. Grider in his child supportwork. Mr. Jarboe had declined (0 do so for

several reasons. However, in the late Fall of1994, Murrey Grider suffered a serious stroke.At the time, he and Mr. Grider had been thebest of friends for 15 years. Mr. Jarboeadmitted that in the summer of 1995, Mr.

Grider again approached him regarding thechild support work. It was anticipated thatMr. Grider's son, Joe would graduate law

school in May, 1996 and that Mr. Jarboe with

help Mr. Grider until men. Mr. Jarboe

admitted he was paid initially, a flat monthlyfee of $1,250.00 which was later increased (0

$1.500.00. He was responsible for childsuppOrt services in Randolph and Sharp

Counties when other attorneys had conAicrs.

Mr. Jarboe stated that after this agreement,Mr. Grider informed him that Mr. Wilson

would be coming by to taJk to him. At thatmeeting. then Senator Wilson informed Mr.

111. iUd/SIller tnl Ue Ar~ulll LIM)er 41

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•MOORE STEPHENS FROST"More than an accounting fum"

Grider and believed at the time the

transactions were proper. Mr. Jarboe seated

that in hindsight. he was wrong for not

making a derailed inquiry and believed heshould have contacted the Office of ChildSuppor( Enforcement to insure that the

arrangement with Mr. Wilson was

appropriate.Following Mr. Jarboe's receipt of the formal

complaint, the respondent anorney offered (0

enter into a discipline by consent pursuant to

Section 8e of the Procedures of the ArkansasSupreme Court Regulating Professional

Conduct of Attorneys (Procedures). TheActing United States Anorney for the Eastern

District of Arkansas, who personally tried the"Nick Wilson" cases, has concurred in the

discipline by consent. Upon consideration of

the formal complaint, the respondentattorney's response, the terms of me proposed

consenr (0 discipline hereinafter stated, theAJternate Committee on Professional Conduct

approval thereof, and the Arkansas Model

RuJes of Professional Condua, the Commineeon Professional Condua finds:

1. That Mr. Jarboe's conduct violated

Model Rule 1.5(e) when from the summer of

1995 to June 1997, he split fees earned fromhis client, OSCE, with Mr. George"Nick"Wilson, when Mr. Wilson did no work

on the account nor was mere any written

agreement between the dient and Mr. Wlisondid not acknowledge (hat he was

accepting responsibility for the work. ModdRuJe 1.5(e) requires mat a division of feebetween lawyers who are not in the same firm

may be made only if: (I) the division is inproportion (0 the services performed by eachlawyer or, by written agreement with the

diem, each lawyer assumes joint responsibility

for the represemarion; (2) me c1ie.nt is advised

of and doe.s nO[ object (0 the participation ofall the lawyers involved; and (3) the tOraI fee is

reasonable.

WHEREFORE, in accordance with the

consent to discipline presented by Mr. Jarboeand the Executive Director, Stark Ligon, it isthe decision and order of the Arkansas

Supreme Coon Comminee on Professional

Conduct that Richard Jarbo<, Arkansas Bar10# 69038, be, and hereby IS,

REPRlMANDED for his conduct in this

bill from that account. At the time, Mr. Jarboedid not question the arrangement as he was

wdl aware mat Mr. Grider and Mr. Wilson

had the child support contract in the area. Mr.Jarboe affirmatively stated that he trusted Mr.

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Jarboe that Mr. Jarboe would be receiving a

check and that Mr. Jarboe would receive a billfor Mr. Wilson's services. Mr. Jarboe seated

that when he received the check he depositedit into his client trust and paid Mr. Wilson's

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RON L. GOODMANLittle Rock

March 27, 2001

The formal charges of misconduct uponwhich this Order is premised arose from theComplaint of Tamara Lee (Hughes) Brown.During 1995, Ms. Brown was involved in two(2) automobile accidents. She hired Ron L.Goodman, an attorney practicing in LittleRock, to represent her in pursuit of all claimsansmg from inJunes suffered 111 theautomobile accidents. Mr. Goodmanadmitted that he represented Ms. Brown inthese personal injury matters and also advisedthat he represented Ms. Brown in other legalmatters including a divorce proceeding.

Ms. Brown had no complaints with Mr.Goodman's representation of her precedingsettlement of her claims. Ms. Brown'scomplaint arose as a result of notification thatmedical bills which Mr. Goodman had beenresponsible for paying had not been paid. Ms.Brown was contacted by Mr. Goodman in a

LanIel' Disciplinal'y Mtions

lerrer dated September 16, 1996, concerningher outstanding medical bills. In thecorrespondence, Mr. Goodman informed Ms.Brown that he had paid $530 to NorthArkansas Radiology. In March 1999, Ms.Brown received a copy of her credit repon.On that report there is an entry demonstratingan outstanding balance to AssociatedRadiologists in Jonesboro. Although thenames are nor exactly the same, Ms. Brownbelieves that this is the account that Mr.Goodman was to have paid in October 1996,since she only had one radiology bill from her

first accident. Mr. Goodman denied that heever saw a bill owed to Associated Radiologists.

Further, he denied that he ever received any

funds owing to Associated Radiologists. Heasserts that there was one owed ro RadiologyAssociates wh.ich he paid. According [Q Mr.Goodman, he explained aU of this to both Ms.Brown and to her mother on numerousoccasions. In addition, Mr. Goodman advisesmat he returned all of Ms. Brown's telephonecalls during his representation of her. Also in

the September 16, 1996, letter, Mr. Goodmantransmitted an insurance check in the amountof $1685.80 to Ms. Brown for her to sign andreturn to him. Ms. Brown did so. The letterspecifically sets out that the insurance check isfor payment of Ms. Brown's medical bills fromher second accident which occurred in Florida.Included with Mr. Goodman's letter was abreak-down of the medical bills covered by thecheck. One of those bills was in the amountof $610 owed to Barnett Chiropractic Clinic.The bill was to be paid in October 1996.However, Ms. Barnett learned that the bill wasnot paid until August 1998, almost two (2)years after Mr. Goodman received the fundsfor payment of the outstanding account. Mr.Goodman's explanation is that he paid $910 toBarnett Chiropractic Clinic, but found Out

later that the amount was only for Ms. Brown'sex-husband and did not include the amount to

be paid on Ms. Brown's behalf. Mr. Goodmanexplained that as soon as he was notified thatthere was an amount due on Ms. Brown'saccount, he sent payment. Mr. Goodman

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therein. At the close of the evidentiaryhearing, Mr. Goodman was directed by meCommirree to provide additionaldocumentation to the Committee. Mr.Goodman was unable to provide theadditional information, which included (1)

the wrinen fee contracts; (2) the settlememstatements prepared in each of Ms_ Brown'slegal marters; and. (3) a copy of each checkdrawn on Mr. Goodman's bank accoum foreach of Ms. Brown's legal matters.

Upon consideration of the formalcomplaint, the response thereto, the testimonyprovided by Mr. Goodman during theevidentiary hearing, and the Arkansas ModelRules of Professional Conduct, the Commineeon Professional Conduct finds:

1. That Mr. Goodman's conduct violatedModel Rule 1.4(a) when he failed to respondto Ms. Brown's repeated requests forinformation about the medical bills he was topay on her behalf and when he failed to

provide Ms. Brown information on the statusof the account owed to the ambulancecompany in Florida. Model Rule 1.4(a)requires that a lawyer keep a c1iem reasonablyinformed about the Status of a maner andpromptly comply with reasonable requests forinformation.

2. That Mr. Goodman's conduct violatedModel Rule 1.l5(b) when he fa;led (0

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wilhour charging a fee. He offered his apologyto his former client for the adverse informationon her credit report and stated that he did notdo anything intentionally to hurt her or herex-husband.

Following the Committee's initial review ofthis maner, the Committee requested Mr.Goodman appear before them for anevidentiary hearing pursuant to Section 5H(4)of the Procedures of the Arkansas SupremeCourt Regulating Professional Conduct ofAnorneys ar Law (Procedures). ~The

Committee directed that Mr. Goodmanprovide certain information prior ro thescheduled hearing. The information wasrequested by subpoena dated May 31, 2000.Mr. Goodman was nor able ro provide all theinformation requested by the Comminee. Hedid provide the checks which were paid ro himfor anorney's fees in the personal injurymatters. However, he was unable to providehis written fee COntracts. In addition, he wasunable to provide the settlement statementsfor each personal injury matter. AJthough hewas able to provide some of the checks writtenfor payment of bills from Ms. Brown's personalinjury claims, he was not able ro provide all ofthem. Mr. Goodman appeared before theCommittee on Friday, July 14, 2000, to

respond to inquiries about this formalcomplaint and the allegations contained

offered no explanation as to how he mighthave misunderstood which amounts were duein light of the faa that the break-down he sentMs. Brown in the September 16, 1996, leuerclearly demonstrated that 5610 was owed onMs. Brown's account.

Another outstanding accoum on Ms.Brown's credit report was the one withKissimee/Osceola Ambulance in the amountof $41 O. This accoum was still open as of thedate of the execution of formal disciplinarycomplaint according to Ms. Brown. Foralmost six (6) months after Ms. Brownreceived her credit report, she anempted [0

contact Mr. Goodman [0 learn whether themedical bill had been paid. She left severalmessages which were not returned. As of thedate of her affidavit to the Comminee, Ms.Brown had not been provided any of theinformation she requested about thisparticular medical bill. Another bill that Mr.Goodman was [0 have paid from the check hemailed to Ms. Brown for endorsemem was anaccount with Florida Hospital Radiologists inthe amount of $91.80. Ms. Brown's creditreport demonstrates that as of August 1998,this accounr had still not been paid. Ms.Brown requested information from Mr.Goodman about this unpaid bill as well bur hedid nOt respond to the requests forinformation. Even though the amounts areseparated on the break-down of medical billssent to Ms. Brown in September 1996, Mr.Goodman asserted that he believed the $410bill and the $91.80 bill were included in theamount of 5574.00 owed to the hospital inFlorida.

Mr. Goodman denied that he ever misledMs. Brown at any time during the course ofhis representation of her. He also explained[hat he d;d pay the only radiology bill that hehad in his file on Ms. Brown's matters andtherefore was not dishonest with her aOOur anyof the unpaid bills. Further, Mr. Goodmaninformed the Comminee that had he knownthe ambulance bill and the Florida hospital billhad not been paid, he would have paid themimmediately. Upon receipt of the formalcomplaint, Mr. Goodman forwarded Ms.Brown a check in the amoum of$501.08. Mr.Goodman also advised the Committee thatduring his representation of Ms. Brown, hereduced his fee in the personal injury mattersand represented her in the divorce proceeding

51 Tke ,lrkmas LaWler KKw.arkbar.lol

promprly deliver payment [0 AssociarcdRadiologists on Ms. Brown's account; when he

failed to pay Bamen Chiropracric Clinic their

account baJance of $610 until aJmost [Wo (2)

years af((:r he received the funds to pay them;

when he failed [0 pay the hill owed to

Kissimee/Oscrola Ambulance during Oao~r

1996 when he received the funds, therebyallowing the bill to be rurned over (0 collection

in November 1996; and, when he f.tiled to pay

Ms. Brown's account with Florida Hospiral

Radiologists in 1996 when he received the

funds to do so. Model Rule 1.l5(b) requires,

in pertinent pan, upon receiving funds in

which a third person has an interest, mar a

lawyer promptly notify the third person, and,

except as stated in mis Rule or O[herwisc

permitted by law or by agreement with the

client, that a lawyer prompcly deliver to [he

person any funds that the third person isentitled (O receive.

3. That Mr. Goodman's conduct violated

Model Rule 8.4(c) when he advised Ms.

Brown during 1996 that the medical bills,related to her accident which occurred in

Florida, had been paid, and, when he provided

information to Ms. Brown concerning

payment of the radiology bill related to the

Arkansas accident which was not truthful.

Model Rule 8.4(c) requires, in peninent part,

that a lawyer not engage in conduct involving

dishonesry and misrepresentation.

4. That Mr. Goodman's conduct violated

Model Rule 8.4(d) since his failure [0 pay Ms.

Brown's medical bills has caused her to have

negative information on her credir report.

Model Rule 8.4(d) requires that a lawyer not

engage in conduct that is prejudicial ro the

administration of justice.

WHEREFORE, it is the decision and order

of the Arkansas Supreme CoUrt Committee on

Professional Conduct thar RON L.GOODMAN, Arkansas Bar ID #86070, be,

and hereby is, REPRIMANDED for his

conduct in this maner.

Lil\\}el' IJisdpliUill')' .trt ions

NOTICE OF CAUTION

WILLIAM D. GOLDMANHot Springs, AR

February 28, 200 I

The formal charges of misconduct upon

which this Order is based arose from the

complaint of Mary Denham. William D.

Goldman an anomey primarily practicing in

Hot Springs, Garland Counry, Arkansas was

employed by Ms. Denham ro represent her in

a post divorce proceeding. Ms. Denham met

with Mr. Goldman on March 12, 1999. Mr.Goldman was to reopen Ms. Denham's

djvor~ case to review the child support. Mr.

Goldman qUoted Ms. Denham a flat fee of

$350.00. Ms. Denham paid $200.00 at thismeeting and the remaining $150.00 on March

18. 1999. During the next ten months, Ms.

Denham attempted to contact Mr. Goldman

by telephone and mail regarding the StatuS of

her case without success. On January 18,

2000, Mr. Goldman filed Ms. Denham's

petition reopening her case. Ms. Denham

attempted to contact Mr. Goldman regarding

the status of her case without success. As of

July 19,2000, Mr. Goldman had not taken anyfurther action. On that date, Ms. Denham

employed new counsel. Additionally, she

contacted Mr. Goldman's office to obrain a

refund of her retainer without success. She

was told by Mr. Goldman's receptionist thar

Ms. Denham had a court date on August 22,

2000 at 11 :00 a.m. in Judge Cook'scourtroom. Ms. Denham appared and was

told that the case was not on the docket. She

contacted Mr. Goldman and informed him of

this fact. Mr. Goldman responded that he had

attempted to contact her to tell her of the

change of courtS, to Judge Swiner. Ms.

Denham denies that Mr. Goldman ever

anempted to contact her.

Mr. Goldman responded that the requested

retainer was $500.00 nOt $350.00. He admits

no action was filed until January. 2000. Mr.

Goldman States that the clerk made a mistake

as to which judge was assigned the case, which

lead to the confusion of the COUrt date of

August 22, 2000. Mr. Goldman stated thaI he

obtained a new court dare for Ms. Denham of

November 21, 2000.

Upon consideration of tile formal

complaint, response herein, and the Arkansas

Model Rules of Professional Conduct, the

Committee on Professional Conduct finds:

I. That Mr. Goldman's conduct violated

Rule 1.3 of the Arkansas Model Rules of

Professional Conduct when he agreed to file

Ms. Denham's petition to review her child

support order in March, 1999 and did not file

the petition until January, 18. 2000.

Additionally, after Mr. Goldman filed the

January 18, 2000 petition, he F..iled to take

any further action in the case. Model Rule 1.3

requires that a lawyer act with reasonable

diligence and promptness in representing a

client.

2. That Mr. Goldman's conduct violated

Rule 1.4(a) of the Arkansas Model Rules of

Professional Conduct when he failed to

communicate with his client despite the

numerous attempcs made by his client to do

so. Model Rule 1.4(a) requires that a lawyer

keep a client reasonably informed about the

status of a matter and promptly comply with

reasonable requests for information.

WHEREFORE, it is the decision and order

of the Arkansas Supreme Court Committee on

Professional Conduct that William D.

Goldman, Arkansas Bar #81074, be and

hereby is CAUTIO ED for his conduct in

this matter.

A NOTICE OF REINSTATEME T OF

ATIORNEY'S PRlV1LEGE TOPRACTICE LAW

STEPHEN E. MORLEYMarch 2, 200 I

The Arkansas Supreme Court Committee

on Professional Conduct has carefully

considered Stephen E. Morley's petition for

reinstatement to the practice of law following

his suspension imposed on January I, 200 I. It

is the decision of the Committee to grant Mr.

Morley's petition.

Therefore, the swpension of Mr. Morley's

Arkansas law license imposed by the

Committee is hereby terminated and he is

entitled to engage in the practice oflaw within

the State of Arkansas effective March 2, 200 I.

1'.1. II 11'.lfS.llrr tOOl Tie ,Irkaml Law)u il

Micbael Fanner Mahony

Michael Farmet Mahony, 56, died Ftiday,March 23 at Medical Center of SouthArkansas in EI Dorado. He was firS[ in hisgraduating class at the University ofArkansas Law School in 1968. He practicedlaw in EI Dorado at Mahony and Yocumwith his father, Emon Mahony, Sr. and hisbcmher. Jady. He was the anomer forUnion Memorial Hospital and First

adona! Bank. He was a member of meArkansas Bar Association and a pastpresident of the Union County BarAssociation.

Active in the community, Mahony servedon the Board of Directors of First UnitedBancshares, Bancorp South, BH and MCorp. and the EI Dorado Boys Club. Hewas a member of the EI Dorado Chamber ofCommerce, me Arkansas Game and FishCommission, former president of the UnionCounty Wildlife Association and a formerdirector of the Medical Center of SouthArkansas.

He was active as a deacon, trustee anddder at Fim Presbyterian Church in EIDorado.

In addition to his father and brother withwhom he practiced law, he is survived byanother brother. Emon Mahony Jr.; his wife,Nice Williams Mahony; thtee daughrers,Mary Michelle and Martha Anne Mahony,and Shelley Rahaim; twO sons, Joshua andMichael Meadows; and one grandson.

Leonard L Scott

Leonard L. SCOtt of Little Rock, 86, diedon March 25. He received his J.D. degreefrom Harvard University in 1937 andpracticed law for 60 years. He was a

i I ne IrwSll LIM}!r MMW.lrk~lr.[I.

In UI'RlOI'iillll

member of the Arkansas and American BarAssociations. chairing several committeesincluding the American Bar AssociationSenior Lavvyers Division Committee onWills, Probare and Trusts (I 990-92), theArkansas Bar Association's Tax, Trusts andEstate Planning Comminee and the ProbateLaw Committee. He was a member of theHouse of Ddegates of the Arkansas BarAssociation in the 70's. He was a memberof the Arkansas Bar Association for 32 years,an Arkansas Bar Foundation FeUow andSustaining Member. He was a member ofthe American Judicature Society for morethan 30 years and a fellow of the AmericanCollege of Trust and Estate Counsd fOtmore than 20 years.

He was a member, Paul Harris Fellow andone-time president of the Downtown LittleRock Rocary International. He was co­founder and fim president of the CentralArkansas Rose Society. He was a member ofTemple B'nai Israd, Little Rock, where heserved twice on me Board of Trustees. Hewas also a Scottish Rite Mason.

He is survived by his wife, Mary SimcoeSCOrt; a son, Leonard SCOrt, Jr. (Mary);daughter. Scottie Tripcony; a sister, KarolynGrundfest Oack); four grandchildren; andthree grear-grandchildren.

Charles L "Chuck" Honey

Charles L. "Chuck" Honey of Prescort , 62,passed away on September 28. He artendedlaw school at George Washington Universityin Washington. D.C. was admitted to theArkansas bar in 1965 and practiced law insouthwest Arkansas for 35 years.

"He was one of the best defense anorneysin this area and believed everyone is entitledto the best legal defense possible, said Rev.Mike Harmon, Honey's friend fot 30 years.Judge Jim Gunter of the Eighth JudicialDistrict orth Circuit said Honey providedvaluable services to defendants and hdpedthe poor on many occasions.

Honey was also close to politics accotdiogto an article in the Nevada CounryPicayune. His brother-in-law, JimmyHignight, said Honey waged anunsuccessful campaign for Congress in

1966, worked for U.S. Senaror J. WilliamFulbright and for U.S. Rep. Orrin Harris.Honey served 10 years in the ArkansasHouse of Representatives.

He was an avid counrry music fan whoowned a recording company in Nashville,Tennessee and represented many countryand western musicians over the yearsaccording to an article in. the Hm SpringsSentinel Record. Honey was also a Masonand a member of the Prescott Lodge. Hewas a devoted member of Central BaptistChurch in Prescott.

Honey is survived by his wife, Betty ofPrescon; (wo sons, Marc Oudith) andChtis; twO grandchildren and a specialCOUSin.

Johnnie Holcomb

Johnnie Holcomb, 53, who had herome aspokespetson for Arkansas women's healthand breast cancer survivors, died Aprij 26 inLirtle Rock. She earned a J.D. from theUniversity of Arkansas at Little Rock andspent 20 years in investment banking. Shejoined Stephens Inc. in 1976 while she wasa law student and was later named a vicepresident. Her work included exploringpotential investment banking opportunitiesand assisting in development of solutionsand customized financing for clients,creating investment banking products,negotiating offerings and completingunderwritings in the debt markets.

She was an active member of theArkansas Bar Association serving on theMock Ttial, Investment, State and FederalSecurities and In House Corporate CounselCommirt<cs in the early 1990's.

In MemoriamContinued on Page 56

The Arkansas Bar Foundation acknowledges withgrateftl appreciation the receipt ofmemorial giftsand scholarship contributions given in memory ofthe following individuals from March 21, 2001through June 15, 2001:

IN MEMORY OF Bo ADAIR

Judge William R. Wilson, Mark Wilsonand Cathi Compton

IN MEMoRY OF MAR1AN EpPERSON

Judge John M. Pittman

IN MEMORY OF W. Po HAMILTON

Doyle and Dana Mayton

IN MEMORY OF JOHNNiE HOLCOMB

Judith GrayJudge John and Carolyn Pittman

IN MEMORY OF JAMES M. MURPHY

Nancy H. Bailey

IN MEMORY OF STEVEN RISHER

Hyden, Miron & Foster, PLLe

IN MEMORY OF LEONARD ScorrJudge Ellen BrandeyOscar FendlerJustice John A. FoglemanHyden, Miron & Foster, PLLeEdward and Evelyn Penick

IN MEMORY OF JAMES B. SHARPArkansas Bar Association Young LawyersSectionW Christopher Barrier"'Joyce Bobbitr*Justice John and Annis FoglemanJudith Gray'"Donis B. Hamilton"'Henry & Cullen, LLP'Don HollingsworthWilliam A. Martin"'Marjorie NiblockEdward and Evelyn PenickJudge John M. PittmanAnn Pyle"Dennis and Jane Shackleford"'David SolomonJudge John and Marietta Stroud"'Barbara Tarkington"Judge Henry WoodsDr. Robert and Judge Susan WrightPaul and Marcella Young• Indicates memorial contribution was

designated to the Bogle-Sharp Scholarshipendowment, administered by the Arkansas BarFoundation.

IN MEMORY OF BERDICE WARDJudge William R Wilson and CathiCompton

IN MEMoRY OF BERNARD WHJITSTONE

Justice John A. FoglemanJudith Gray

IN MEMORY OF DAVID WILLIAMS, M.D.Judirh Gray

In lll'mol'iilm

JAMES BAXTER SHARPJames Baxter "Deacon" Sharp. age 80.

died at his home in Brinkley on May 29.200 I. He was the son of the late WilliamWilson Sharp and the late Carrie RusherSharp. He was the senior partner in the lawfirm of Sharp & Sharp in Brinkley. Heserved as President of the Arkansas BarAssociation in 1971-1972.

U. S. District Judge Henry Woods.delivering the eulogy at Sharp's funeral heldat the First Baptist Church in Brinkley, saidthat the life of this Arkansas lawyer had fartoo many honors and accomplishments to

list and that he had probably done more forthe Universiry of Arkansas at Fayerrevillethan any other graduate. While studying atthe University he was a member of theSigma Chi social fraterniry and the DelraTheta Phi legal fraterniry. He graduatedfrom the Law School in 1948. Sharp was aCharter member of the NationalDevelopment Council of the Universityand a Founding member of the UniversityofArkansas Foundation, Inc., serving on itsBoard for twenty-two years and as itsChairman for six years. He was a long timetrustee and chairman of the Jewel MinnisTrust of which the Foundation was theprimary beneficiary.

During World War II, he served in theArmy Air Corps. patrolling off rhe coast ofSouth America in search of Germansubmarines. He was recalled to active dutyduring the Korean conflict as an officer inthe Judge Advocate General 's Corps. Upondischarge with the rank of Captain, hereturned ro his beloved Brinkley. Ir wasthere rhar Sharp devoted much of his rimeand effort to the practice of law and the

administration of justice. He was municipaljudge of Brinkley from 1956 to 1974, andserved as secretary, vice president, andpresident of the Arkansas Municipal JudgesCouncil. He was a Fellow in the AmericanCollege of Trust and Estate Council and ofthe Arkansas and American BarFoundations. In 1984 he was given theLawyer-Citizen Award of tbe Arkansas BarAssociation.

He was a director of the Bank of Brinkleyfor over 25 years and was chair of the Boardof Directors of the Merchants & PlantersBank in C 1arenclon for 20 years. He wasPresident of the Brinkley IndustrialDevelopment Co. for 25 years and served aschair of the Brinkley Chamber ofCommerce Industrial Committee. Underhis leadership several major corporationsdeveloped manufacturing plants inBrinkley. He was a licensed realtor andinsurance agent. He served on the Board ofTrustees and was teacher of the men'sSunday School Class at the First BaptistChurch in Brinkley for over 50 years. In1998. rhe Brinkley Chamber of Commerceselected him as its Citizen of the Year.

In 1948 he married Ann McShaneLuckinbill ofFon Smith whom he had merat the University. They have three children:William Wilson Sharp of Albuquerque.New Mexico; James Baxter Sharp III ofBrinkley; and Madeleine Sharp-Smith ofBaltimore, Maryland. Sharp is also survivedby his sister. Jenny V. Moore of Clarendonand several grandchildren and greatgrandchildren.

"Deacon" Sharp remained an interestedand involved member of the Arkansas BarAssociation until he became incapacitatedby his final illness. He will be rememberedas a lawyer with firm opinions who wouldfighr hard for those causes he believed in.Contemporaries who had differingopinions remained his best friends. He wasthe true advocate - one who was faithful tohis own philosophy and beliefs. bur onewho could admit defeat with a smile andaccept victory with humiliry. He enjoyedorder and decorum. His family and hiscommunity came first, but he was generousto many others who were less fortunate. Hewas one of the best of those whose age andexperiences place them in "the greatestgeneration. "

101. 16 NI.I/S.ller 2091 The .lrku!lJ La~}er ii

www.arkbar.com

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A Susan G. Komen Foundation boardmember since the mid-1990's, Holcombbecame a spokesperson for Arkansaswomen's health and breast cancersurvivors. She Jed the Governor's BreastCancer Control Advisory Board from1998- 2001, and was awarded the JosenaWilkins Breast Cancer Award. In a 1999edicorial for a statewide businesspublication. Holcomb wrote, "I am afighter and a breast cancer survivor. Muchof the ammunition I've used to combatcancer these past few years came from mySouthern upbringing and the lessons I'velearned in the investment business."

Holcomb was recognized as one of [heTop 100 Women in Arkansas in 1995 and1996 and became a judge in that awardsprogram. She was a founding or chartermember of the Imernarional Women'sForum - Arkansas Chapter, the Universityof Arkansas Medical System CommunityAdvisory Council and the Worthen BankProfessional Women's Advisory Board. Sheserved on four committees for theUniversity of Arkansas ar Litde Rock andwas a former president of the erwork forExecutive Women. She also served on theboards of the Centers for Youth andFamilies, the Stephens YWCA, theArkansas Community Foundation,Nonprofit Resources and the Old StateHouse.

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