Arkansas Civil PretrialProcedure Practice Guideby Han, David B, Bogard, Elizabeth Murray and John R, Elrod

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The trodemorks shown above ore used under license.

GO TO TRIAL Chapter 13. Pretrial Procedures,WITH CONFIDENCE. Molions and

Chapter 1. Introduction to Arkansas ConsiderationsCivil Practice Chapter 14. Settlement, ADR and

Chapter 2. Inilial Interview and Related Molters•Assessment of Case

IChapter 3. Venue To order, please callChapler 4. Parties

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@ 1998 We~1 Group 9·9454.9/6-98 18659571 1-588-203-4

VOLUME 33, NUMBER 3

PUBLISHERArkDnsas Bar Association

Phone: (501) 375-4606Fax: (501) 375-4901

Homcpage: www.arkbar.comE·Mail arkbar@ipa,net

II(KA:-<SAS BAI( ASSOC IATlO:-<

-100 \\ \lad"ham little ({(lck, \rkan ..a.. 72201 on en s

In Every Issue

Features

II

10

18

32

40

234

824

38404243

5152

26

Robert M. Cearley, Jr.:A Study inProfessionalismby Adrielllle Brietl1<e

Going Home To Practiceby Al Schay

Finding Your Niche in Private Practiceby uumia Davis Stadter

Show Me The Money...Not! (So Fast)A Primer for Defending Attorneys Fee Petitionsby Patricia 1. Hays

Barbarians at the Gate: Image, Ethics andThe Unauthorized Practice of Lawby Brad Hendricks

Advisory Ethics 0 inion

On the Cover: AssociationPresident Robert M. Cearley, Jr.at his home in Little Rock.Photograph by Dixie KnightPhotography.

Editor's Note: Vol. 33, Number2, Spring 1998 of The ArkansasLawyer featured on the coverfour law students lrom the UALRSchool ot Law. They are, fromleft to right: Bryan Achorn,Jenniter Owens, Knsty R.Bnetzke and Derek Smith.

PRESIDENT'S REPORT, by Robe" M. Cearley, 11:ASSOCIATION NEWS

EXECUTIVE DIRECTOR'S REPORT, by 0011 HollillgslVorth

LAW OFFICE TECHNOLOGY, by SWilley R. Rallis alld Frederick R. SpellcerCLE CALENDAR

YOUNG LAWYERS SECTION REPORT, by GlVelldalyll D. HodgeLAWYER ADVISORV OPINIONS

JUDICIAL ADVISORY OPINIONS

LAWYER DISCIPLINARY ACTIONS

IN MEMORIAM

CLASSIFIED ADVERTISING/INDEX TO ADVERTISERS

EDITORAdriel/lie H. Brietzke

EXECUTIVE COUNCILJ. Ray Baxter

Robert M. Cearley, Jr.William M. Clark, Jr.H. Murray Claycomb

F. Thomas CurryThomas A. Daily

Thomas F. Donaldson, Jr.Lynn M. Flynn

Ron D. HarrisonDave Wisdom HarrodGwendolyn D. Hodge

Alire L. HolcombDon Hollingsworth

Louis B. Jones, Jr.Philip E. KaplanKnox B. Kinney

Thomas o. LedbetterJack A. McNulty

Michael W. MitchellHarry Truman Moore

Charles C. OwenBrian H. RatcliffSteven T. ShultsJames D. Sprott

Carolyn B. Witherspoon

TlU! Arl'unsas lJI1llY" (USPS 546-(40) is published quarterlyby the Arkansas Bar Association. l'enodiClls postage paid alLIttle Rock, Arkansas. POSTMASTER: send addresschanges to TJU! Arkansas Lnwyrr, 400 West Markham, littleRock, Arkansas 72201. Subscription price to non-membersof the Arkansas Bar Association $25.00 per year. Anyopin­ion expressed herein is that of the author, lind not nec:essari­ly that of the Arkansas Bar Association or l1r~ ArkallsaSUlWyn. Contributions to Th~ Arkmuas LQwyn are wt'l­come and should be sent in two copies to EDITOR, Th~

ArkllllSDS Ul~, 400 West Markham. lillie Rock, Arkano;as72201 All inquiries regardma advertising~Id be senl toEditor, Tht Arkansas Lnwyo at the above address.Copyright 1998, Arkaffiils 8.:lr Association. All righlSreserved.

OFFICERSPresident

Robert M. Cearley, Jr.President-Elect

Louis B. Jones, Jr.Immediate Past President

Jack A. McNullySecretary -Treasurer

H. Murray ClaycombExecutive Council Chair

Philip E. KaplanYoung lawyers' Section Chair

Gwendolyn D. HodgeExecutive DirectorDon Hollingsworth

Assistant Executive DirectorJudith Gray

EDITORIAL BOARDDavid H. Williams, Chair

Wiley A. Branton

Thomas M. CarpenterMorton GitelmanJames c. Graves

Thomas H. McGowanAI Schay

Jacqueline S. Wright

ASSOCIATE EDITORSara lAndis

1ll'I'sidt'nt's Rl'plll't

Promote and Adhere to the Highest Standardsof Professionalismby Robert M. Cearley, Jr.

practlc1l1g lawyers we should have moreexposure co students in the law schools--­they should be cold first hand what isexpected of them when they join the bar.

Fifth is commitment to improve the jus­tice system and advance the rule of law.Trust and confidence in our courtS is thevery foundation of a civilized society. \Y/eneed to dedicate oursdves to improvementofour court system--and there are improve­mentS we can make. Litigation is tOO slowand too cosdy. Greater resources need to be:allocaced to <he judicial braneh for scaffingand facilities. Ahernare dispute resolutionmuSt be encouraged. \Y/e are, for the mostpart, trying cases the same way we did in thehorse and buggy days. We should be open

to new ideas and embrace moderntechnology. An impressive coalitionof eight national legal organizations,including the American BarAssociation. the American Board ofTrial Advocates, the Association ofDefense Trial Acrorneys, the DefenseResearch Institute, InternationalAcademy of Trial Lawyers, and [heAssociation of Trial Lawyers ofAmerica recently concluded a fouryear study making recommendationsfor changes in our civil justice sys­tem. Among these recommendationsare: limiting jury service to one day

or one trialj instructing juries before any tes­timony is taken, as well as at the close of theevidence; allowing juror questionnaires; andallowing jurors to take notes. Our civil jus­tice system is the envy of the world. Bur theworld is changing and we must accommo­dare change.

The independence of <he judiciacy isunder political arrack. We members of thebench and bar are in the best position tocounter baseless and ill-informed attacks onthe courrs and on our judges. We shouldjoin together and do so.

Sixth is pro bono service. The only thingless popular than a poor person these days isa poor person with a lawyer. The poor haveno con5[ituency. Lawyers hold the keys to

See Page 5

What makes the lawyer professional ishis insistence that in the legal realmhe setS the parameters of what he willand will not do---and he tells theclient what he believes is in the client'sbest interest.

Third is civility. Civility is an integralpart of professionalism. We need to remem­ber that, "what goes around comes around."The Golden Rule fits into the practice oflaw JUSt as it does in our daily lives. We areofficers of the court and the court should beaccessible co us for early intervention in dis­putes. Judges need to recognize that firmand consistent enforcement of the rules andinsistence on civility not only promote theadministration of justice. bur enhance thepublic's perception of the process. The lawencourages what ir pennies.

Fourth is legal education. ontinuinglegal education is not just a requirement, itis a way of life for a true professional. fu

These efTorrs should be applauded. In [hisarea, our reach should always exceed ourgrasp.

Second is competence and dedication.Clients wall[ and deserve comperence anddedication. But clients also want anddeserve independent judgment from theirlawyers. Sometimes that means saying,"no." Ambassador Sol Linowin pur it thisway:

As lawyers we arein many ways a

privileged group.We are well edu­

cated, our work is intellectually challengingand financially rewarding, and we have theopporruniry (0 help people solve seriousproblems. onerheless there is growing evi­dence that many of us are unhappy, unful­filled, and dissa[isfied wi<h [he qualicy ofourprofessional lives and that the public has lostrespect for our profession. Whar can we do?

I believe the best answer we can give to

our critics is ro be the very best lawyers that

we can be and ro promoce and adhere (0 thehighest standards of professionalism.L.1wyers are nor just legal service providers.The practice of law is not a business.The ride, "Anomey and Counselor AtLaw" should remind us of OUf role.We muSt remember that the practiceof law is not a popularity COntest. Wewill never be popular, bur we canregain the respect that we have lost, ifwe: earn it. 'When we practice as uueprofessionals we advance not only ourclientS' goals but those of the profes­sion as well.

When we mUSter our very bestefforts on behalf of our clients, whenwe use all of the knowledge and skillthat we possess and we do it diligent-ly and with a civility that we expect fromothers, we will begin ro regain the respectthat we have lost. When we innill in ourstudents of the law the highest values of pro­fessionalism and teach by our own example,we will begin to regain what we have lost.Every client is entitled to competent andethical representation. But professionalismembraces much more.

First is dedication to ethics and integrity.Ethical rules should not be: a constraint buta commitment that guides our every anionin the practice of law. Some courtS and legalorganizations have developed aspirationalcodes of conduct encompassing not onlywhat a lawyer must or must nor do but whara lawyer should do and how it should be done.

t Til Irtulil La~Jlr Ill.ll II.l/S•••lr 19l5

\ssol'ialion \rlls

Winning Essay in the Arkansas Bar AssociationLaw Day Essay Contest

What Is A Lawyer?by Heatb Himstedt

A lawyer is by definition a person quali­

fied to offer legal advice to diems and corepresclH them in court. Of course that def­inition is the very basic definition and

explanation of what a lawyer is. Lawyersspend their lives fighting for the well beingof their clients and the overall well being oftheir country. Some will argue that an attor­ney and a lawyer are different and requiredifferent amoums of education. This isactually the furthest thing from rhe truth. In

reality an attorney and a lawyer arc [Wonames for the exact same thing. fn this essayI will explain some details of what a lawyerdoes, qualifications and training required,the need to have a lawyer, and the differentservices they provide.

Qualifications/TrainingThe training and qualifications of lawyers

is rcguJated by each state. Usually, the firststep is the completion of high school and atleast mree years of college. After college,they take an examination in general scholar­ship to get into law school. Next, a study ata school of law and sometimes an appren­ticeship, or clerkship, for one to two years,in the office of a practicing lawyer. Lastly, tobecome a lawyer you muSt pass an examina­tion in law before being admitted {Q the bar.

Duties of a LawyerIt is the duty of a lawyer to inform his

clients as to which laws apply to them andtheir families, and to make known what canand can not be done under the law. Lawyersmust also be effective, clear communicators,able to communicate with individualc1iems, large Ot small companies, cities,towns, or other lawyers. in all cases, lawyerswam their clients to be treated fairly.Lawyers need to know where to find factsand how to put them together at a latertime. They must also be good readers, writ­ers, and quick thinkers. Lawyers often haveto change people's ideas in order to win thecase for their cliems, so they must ask theright questions.

When a Lawyer is NeededAccording to the Bill of Rights, a pan of

the Constitution of the United States,everyone accused of a crime has the right toa fair trial. Lawyers help people maimain afair trial. First, lawyers meet with c1iems inhomes, offices, or jails. They talk about thelaw and their c1iems' rights. Together thelawyers and their clients decide what to do.Then, lawyers look up laws in law libraries.They find other cases that are similar to

their client's case. They put these factstogether in a way that best helps their client.Sometimes lawyers raJk to the lawyers onthe other side. They may nOt want theirclient to go to court. So they try to settle thecase before this happens. However, when acase goes to court, each lawyer speaks fortheir client. Each lawyer wants ro win thecase for his client.

When two (or more) people do not agreeabout what is right, lawyers help them purtOgether a fair agreement. Lawyers writeeverything about this agreement in a con­tract. The contract becomes a law for these(wo (or more) people to folJow. Sometimestwo people still can not agree abom what isright under the law. So, they go to court. Incourt a judge or jury of many people isasked to decide. One lawyer talks for eachside. The judge or jury heatS all the factSfrom the lawyers. Then rhey make a deci­sion. The people must follow what the courtdecides.

DifferentTypes of LawyersAfter lawyers learn about many different

laws, they may specialize in one area of par­ticular interest. These lawyers work at onlyone kind of law such as tax law, environ­menrallaw, civil law, construction claims, orcriminal law. Lawyers who have specializedpractices may work for themselves, large lawfirms, private businesses, or Federal, state,and local government. Many lawyers do norspecialize. They need to know all types oflaw. They practice general law and usuallywork independently or for a law firm.

SummaryLawyers tOrally commit themselves to a

belief in the judicial system-right or wrong!Therefore. a lawyer can passionately defenda diem that he knows is guilty. They wamthe laws to work for you. Lawyers do manythings for many people.•:.

Heath Himstedt is a student at SouthwestMiddle School in Searcy. He received {/ $500savings bond for his essay which was selectedfrom over 120 entries.

MEDICALRECORDSREVIEW

M.D., J.D. with experiencein PI and medicalmalpractice. Will

evaluate cases, locateexperts,

and providelitigation support.

Call 501-960-7122

lIt'l'l ing \111 in's

EXECUTIVECOUNCIL

August 21 & 22Li ttle Rock, Arkansas

fol. nNo. I/Solmer 1998 fhe Arkaosas La"Jer I

EWl'utiH' 1IiI'I'I'tol"s RI'pOl't

by Don Hollingsworth

Endings and Beginnings

LAST

ANNUALMEETING OF

FIRST 100 YEARS

SETS RECORD

Anendance records were shancred at the

100th Annual Meeting of the Arkansas BarAssociation. 1,108 lawyers and judges(26% of the membership of the Association)were registered participams. To put this inperspective, the annual meeting of anothersouthern stare bar association, held thissummer, achieved a record when 3% of itsmembers attended. (In recent years, ancn­dance at the Annual Meeting in Hot Springshas averaged 20% of the Association's mem­bership, which is the highest or one of thehighest attendance percentages in the U.S.)

The reasons so many lawyers and judgesannually ancnd this meeting are as diverseas the membership itself. Meeting plannersrecognize and cater [0 the needs of theAssociation's eclectic make-up. CLE, net­working opponunities, omstanding pro­grams, [Op-flight speakers, relaxation andfamily time, qualiry emeruinment and ofcourse tradition, are all considerations thargo into designing the program.

The Arkansas Bar Association is especial­ly pleased that the Arkansas Judicial Councilheld irs Annual Meeting in conjunctionwith our Annual Meeting, which theCouncil has been doing on alrernate years.As has been true for many years, theArkansas Bar Foundation held its AnnualMeering and Annual Fellows Dinner in con­junction with our Annual Meeting. We arealso grarified that other law-related groups

and boards hold meetings during ourAnnual Meering.

A feather in the cap of the Associationwas the recognition of the quality of theprogram by C-Span. The June 12th panelfeamring three former lawyer governors ofArkansas and the address by AssociateJustice Clarence Thomas were aired nation­ally.

I wish every artorney in Arkansas couldhave been present for the June 12th morn­ing session. In addition to the above werethe presentation by Judge Richard Arnold

TlIr ,lrk;1l1S;ll J,;III.II'r I'olll !o.l/SllllllOl'r 1998

and the investiture of and remarks byincoming President Roben Cearley, Jr. Itwas an uplifting and challenging morningfor the over 750 at[Orneys in the room,beginning with the outstanding openingremarks of Governor Sid McMath and end­

ing with the call co professionalism byPresidem Cearley.

Hats off to Fred Ursery who was programchair of this Cemennial Annual Meeting!He cenainly put cogether an outstanding 4day program.

If you missed this meeting, mark yourcalendar for June 9-12, 1999. There is nobetter way to start the next 100 years of theArkansas Bar Association.

New Member Benefit from LEXlS-N.EX.ISYour Association has elHered recently

into a Membership Group Agreemem withLEX1S-N EX1S which will provide ourmembers online legaJ research at reducedrates. Specific information on this benefirwill be coming ro all members through themail and Associarion publications. Specialrhanks go to rhe members of our Task Forceon Legal Research, Publications andTechnology, which is analyzing such bene­fits for our members. Your Associarion srillhas rhe agreemem wirh LOIS for the pro­duction of our Systems and Handbooks onCD-ROM.

New Dues StructureThe inirial evidence is chat most attor­

neys in our stare like the new membershipdues strucrure. The 1997-98 bar year hasended with a record Association member­

ship or over 4,200 attorneys, which includesformer members rejoining our Association.

M,any members are renewing rheir 98-99dues ar the $150 level even though theycould have lowered rhe amount through thenew income range option. This financialsupport is important for maintaining thevarious projects of our Association. Anorherexample of this supporr are rhose memberswho renewed at a lower rate through theincome range option and included an addi­tional amount as a contribution or became asustaining member for the firsr rime.

AJice Holcomb, New LobbyistWhjle we regret losing Stacey DeWitt ro

Atlanta, Ga., we are fortunare to haveretained Alice Holcomb as our new lobbyist.Alice is no stranger to this Association, Stategovernment or the Arkansas Legislature. Shehas been an active member of ourAssociation since graduation from theUALR School of Law in 1984. Alice hasserved as a Commissioner of the Workers'Compensation Commission, Legal Counselfor Governor Tucker, and the PulaskiCounty Chancery and Probate Clerk.Among her Associadon work is current ser­vice on the Jurisprudence and Law ReformCommittee and rhe Task Force on LegalServices.

Stacey DeWitt was not only our lobby­ist. She had been our media person and hadbeen an outstanding volunteer on manyAssociarion commirtees. We wish Staceyand her family well in their new endeavors.

JudiciaJ Artjde VoteIn what is hopefully the beginning of the

end, our membership approved the pro­posed judicial article by a vote of 1389 to

254. Our Association along wirh theArkansas JudiciaJ Council and others willrequest the Arkansas Legislature to place thejudicial arricle on the general election baHotfor November 2000.

The media response on the judicial arti­cle has been favorable so far. Please remem­ber thar your Senator and Representativemay want information on the specifics ofrhe judicial article. Anyone may contact thisoffice ro obtain such information as well as

a copy of the article.

Membership SurveyThis fall 1,500 members will receive a 4

page survey asking member opinions on avariety of subjects such as technology andmember benefits. This is the first member­ship survey in over 10 years. The 1,500members will be randomly selected.

Your Association intends this to be thebeginning of a reguJar program of surveyingmembers on relevant issues facing our pro­

See Page 5

WHAT LAWYERS COME TO YOUR MIND?

HELP US WITH YOUR

CENTENNIAL CELEBRATION!

100 YEARS•••

LAWYERS OF THE PAST

WHEN YOU THINK OF

THE GREAT ARKANSAS

. :"11entennla:.0~

"<tig."~e~ 1898-1998~v, oor

Now's the time to tell us who or what you

know. Jot down your stories or names of

those you think deserve recognition and send

them to us for possible inclusion in our 1998

Centennial Celebration.

The Centennial Issue will be published in November.

r------------------------------,IYour suggestions:

fession and the Arkansas Bar Association.Due to staffing and budget constraints,most of the surveying will be more infor­mal than the more comprehensive surveythis fall. For example, we learned usefulinformation/opinions on 5 issues fromabout 200 members at the AnnualMeeting.

If you are one of the 1,500 who receivesthe survey this fall, please complere it assoon as possible! Only with your coopera­tion can we gather such information andthereby improve rhe services of yourAssociation.

President's ReportContinued from Page 2

the courthouse and it should be open to

everyone, rich or poor. We need to expandour pro bono service. One-half million peo­ple in our own stare qualify for legal ser­vices---we must do everything in our powerto serve rhe legal needs of the poor, from ourown pro bono work to demanding that theCongress continue to provide adequatefunding for legal services.

These are all things that we can do everyday as professionals to better serve ourclients, the public, and the profession. As anassociation there is more that we can do.Several task forces will be appointed for thecoming year, including a Task Force OnLawyer Admission and Discipline (to assessthe ways we admir and discipline lawyersand recommend any needed improve­ments), a Task Force On The UnaurhorizedPracrice of Law (to look ar unlawful prac­rices, as well as the impact of rhe Imernetand changes in the marker place on the prac­tice of law), and a Task Force on Law OfficeManagemcm Assisrance (ro explore rhe fea­sibiliry of providing law office managementconsulring services to our members).

I am a rriallawyer and a solo practition­er, and I am proud ofwhar I do. I hope thatyou will join with me in making this a yearof professionalism.•:.

Executive Director's ReportCominued from Page 2

A Personal NoteI was blessed, in my first full bar year as

Executive Director, to work with JackMcNulcy, the IOOth President of ourAssociation. Both Jack and Montine havemade the first half of our Cemennial Year aresounding success. I will always value theiradvice and friendship.•:.

Please send YOllr sllggestions: names to be recogl/ized, stories, al/ecdotes, and al/Yinteresting facts from the lasl100 years to Adrienne Brietzke,

The Arkansas Lawyer, 400 West Markham, Little Rock, AR 72201or FAX 501-375-4901 for possible inclllsion in Ollr cenlennial celebration.L ~

\'01. II 10. l/Sommrr 1995 The ,Irkansal Lal\!rr ~

••••••••••

ER OF YOUR MEMBERSHIP

For more information about member benefits or programs callBarbara Tarkington (501) 375-4606 or 1-800-609-5668.

ueED COST LEGI

Call Rebsarnen at 501-664-8791 for professionalliability (5% discount for members) and mem­ber group rates for accident, disability and termlife.

You are well-represented on legislative issuesaffecting the profession and legal system. TheAssociation's lobbyist represents its members'interests in the Legislature.

NTS

CAR

AVIS - for discounts call 800-331-1212 and givethem this number, B-314500.

The cornerstone of an attorney's professional­ism is up-to-date information. The ArkansasBar Association provides the most comprehen­sive statewide CLE program, and memberspay reduced tuition! Over 20 CLE Seminars areproduced annually.

IN THE ARKANSAS BAR ASSOCIATION/.

-e~MEMBERS RECEIVE A

SPECIAL D1SCOU T

Ten practice handbooks on CD-ROM fromLOIS and in print and disk from thisAssociation. The 1998 version of the ArkansasForm Book is now available. To order, call theAssociation at 501-375-4606 for print or diskversions or call LOIS at 1-800-364-2512 for CO­RaM.

• The NewsBulletin • Tile Arkansas Lnwyer• Legislative Summary From the Hill• Guide to Arkansas Statute of Limitations• Annual Membership Directory• The Arkansas Lnw Review• Tile UALR Lnw JournalBrochures on Law-Related Topics are availablefor members to share with clients or civicgroups.

L SYSTEM

Call 501-661-5853 or 680-5029 for discounts onservices and equipment.

The Arkansas Bar Association has historicallyworked to secure adequate funding of the courtsystem, to revise ou tda ted laws, and to provideneeded legal information to the public.Association members do this through the leg­islative program, Sections and Committees, theAssociation's Mock Trial Program, YoungLawyers Section's projects, and special studies.

The MBNA Platinum Plus MasterCardincludes a card with the Arkansas BarAssociation logo, no annual fee, miles plusoption, a low APR, and travel services. Call800-847-7378.

UPS gives Arkansas Bar Association mem­bers discounts and quick response time. Call800-325-7000 and identify yourself as a memberof the Arkansas Bar Association, or use account#50000700360.

This Association has endorsed the AmericanBar Association's program. It offers options,stability, and comprehensive services.Call 800-826-8901 or visit the website athttp://abra.ris.ssga.com

NEW! LEX

In coming weeks members of the ArkansasBar Association will be eeing informationabout the Lexis-Nexis online legal research ben­efits, which will be provided to Associationmembers at a discount.

Lilli IInin' Tl't'llllnlng)

Have Technological Advances Solved(or Created) Problems?by Stanley R. Rauls

Jtthough one might question

whether technological advances haveolved more problems than they

have created, twO things seem ccnain -- rhe

practice of law has been significantly affcc£­ed by changes in technology. and rhe fullimpact of change is yct {O be seen. Though

any lawyer or firm may have benefitted tovarying degrees from the increased resourcesmade available through technology, smallerfirms and sole pracririoners seem {O have

been rhe major beneficiaries.In the nor roo disram past, access ro a

respectable law library was a privilege grant­ed by virtue of firm or court affiliation, geo­graphic location or personal wealth. Today,electronic publishers and ilHcrner providershave reduced (and in some cases eliminated)

the need ro make exorbitanr expendituresfor printed material. An added benefit is the

speed with which legal information is dis­seminated -- it is almost incomprehensible

to those of us trained in a precompurer era.For anyone willing to endure rudimenta­

ry training or self-instruction in the use of

computer software and Boolean logic (an

oxymoron), statutes, regulations, opinionsand a wide variety of useful information isinstantly available from aJmost every juris­diction. Information may now be obtained

by Frederick R. "Rick" Spencer

p;;ecision regarding which legal soft­

ware to use on a daily basis can be

rusrrating and time-consuming.This is a summary of the software that weuse in this firm, but it is just "one lone voice

in the wilderness" and not the final authori­

ty for your particular needs, unless your

goaJs are the same as ours. Our ultimate

goal in this large volume practice was and isto have a totally electronic office file for

every diem with only a "backup" hard copyof my documents if necessary. \Vle have not

reached that goal yer.

No marrer what your particular goals in

your office, before you purchase any soft­ware, you must ask yourself three questions.

s nr ,Irkans~s 1,~II!rr 101. ~:lllo. ~/Sollllllrl' 1998

faster, less expensively and. in many

instances. more reliably because of today'stechnology.

Legal research is not the only facet of alawyer's daily routine that has been affected

by changes in technology as well as in pub­

lic attitudes. Nor long ago. any lawyer whoallowed an answering machine to field tele­phone calls was likely to miss a cliem or hear

obscene messages. Either the attitudes of

the general public have changed or theyhave resigned themselves ro calking ro com­puters. At any rate, the number of recorded

wisecracks and hang-ups seem to havedecreased. and voice mail can be an effective

way to reduce workload or personnelreq Ul remen ts.

For the lawyer on the go, a cellular or dig­ital telephone and laprop computer with the

proper software and peripheral devices canturn any car or motel room inro an office.When files have been smred electronically,

entire case and documem files may easily be

transported ro any location without drag­ging along cardboard boxes and dollies. If

the laprop has a CD drive, the firm library

may be taken on the road as well.E-mail can be an effective method m

communicate with others at far away loca­tions. and electronic files may be transport-

First, is the software you are using adequate?As the old adage states, "if it ain't broke.don't fix it!" There is very inexpensive soft­

ware that the attorney can purchase which isnOt trilly a "verticaJ package" [i.e. created

just for attorneys] that seems to be more

than adequate for some attorneys. Secondly,

you must decide whether you and your staffhave the time to sweat through the "learning

curve" and learn how to actually use the

software. Finally. you must ask if the soft­ware you want to purchase is widely used in

law offices. Once you have answered thesequestions to your satisfaction, you are ready

to go ahead and "bite the bullet" and pur­chase the software for your needs.

In our firm, we had used Terolaw since

ed across rown or the world much faster

than by mail or express carrier.Communicating bye-mail rather than fac­

simile gives attorneys and clients an advan­tage when documents received need correc­

tion or sllpplemenration. However. securitymeasures or encryptjon should be used for

sensitive material sent bye-mail.Once roo unrdiable or cumbersome to

use effectively, scanners and rdated soft\vare

have made great strides in the past few years.Today, the scanner can save an attorney or

support personnel time when responding todiscovery requests. using printed forms or

amending lengthy documents. Withrecordable CD drives now avajlable, docu­ments or files may be scanned ontO compact

d.isks to reduce storage space needed at thelaw office as well as decrease time necessary

ro retrieve or review dosed files.

Needless to say, there is no point in out­lining all of the ways that technology canbenefit lawyers III today's world.

Considering its rapid and constant advance­

mem, such a list would likely be obsolete

when completed. anyway. Suffice it to say,the use of technology is essential to anylawyer's survival in today's information pro­liferation.•:.

the 1980's. But when the soft\vare's data­

base in our office gOt so large that it rook itsfinal gasping breath in 1994, we found our

mat the company was swallowed up by the

competition and there were no updates ro

fix the problems. They recommended the

software packages that I ultimately pur­chased - Amicus Attorney Pro can reduce

your risk of errors and omissions in cases

and client matters. It increases your effi­ciency as well as billable time because of the

comprehensive calendaring and "to-do"functions. It has a number of features which

3re essemial to the reduction of law office

insurance claims. It can help reduce yourrisk of facing liability claims by:

• organizing your practice better

• reducing the likelihood of limitationperiods being missedwarning you of deadlines as theyapproachreminding you to keep files currentkeeping an accurate record of what hasbeen done, when, and by whom, in theevent of a dispute arisingkeeping an accurate record of telephonecalls, in the event of a dispute arisingalening you when it's time to report to

your clientsreminding you to keep in touch withpeople

• helping you to spot potential conflicts ofInterest.What we wanted was a "one-write" pack­

age for everything - time and billing,accounring, check writing, statistical anaJy­sis, phone call journals, conflicts and truStaccounts. In other words, we wanred tohave virtually electronic files rather than justhard copies of everything. Although almostall of my fees are contingency in nature andI am the only lawyer in the firm, I wanted toknow how I am doing on each type of case­social security, workers' compensation, per­sonal injury, etc. Amicus Attorney Proallowed us to do this. But if it is a billablecase, you naturally capture more billabletime from existing work. This translatesinto more bottom-line revenue. Am.icusAttorney Pro organizes and streamlines yourpractice to the extent that some malpracticeinsurers even reduce the premiums. So let'stake a quick look at some of the features ofAmicus Attorney Pro.1I1.

Its calendar is fully custOmized. Itincludes support for deadlines, notificationof how many days are remaining until eachdeadline, and "Bring Forward" items to bebrought [Q your anention. Of course, limi­tation-period reminders are built in. Thecalendar is integrated with the case manage­ment tools in the Files module. Every itemin the calendar can be cross-referenced to acontact and to a file. You can review lists ofevents and schedules in either of those mod­ules. In this way, you can set up a scheduleof tasks on a particular transaction. Anyitems you list will be included in the calen­dar automatically. And any changes youmake in one location will be reflected in theother instantaneously.

Amicus AttOrney Pro's Daily Reponbrings together the many differenct aspectsofyour practice at the stan ofyour day. Keymatters are brought to your attention.Reminders help you stay on top of things.

Any loose ends from yesterday are flagged.Double-click anything to be taken instantlyto the place where you can deal with it. TheDaily Report is linked with the "To-Do" listso that your list of reminders is updatedconstantly as each deadline draws near.Once an item is on the "To Do" list, it isautomatically carried forward from day today until you mark it "Done." The lengthof time each item has been carried forwardis shown on the list, so that you can see theitems that are getting stale. If any items aregetting stale, you are given a warning on theDaily Report. There is a "Do Someday" listfor items that have no fixed date. However,you won't forget these items, because the"Daily Report" will remind you if it hasbeen more than two weeks since you lastconsulted your "Do Someday" lisr.

With Amicus Attorney Pro, you can savetransactional checklists as "Precedents."Since you have recorded the appropriateschedule for any type of transaction, you canapply it in each subsequent case to ensurethat a necessary step will never be forgotten.The "Precedents" feature is enhanced by theability to "link" any twO or more itemstogether according to their legal reJation­ship. For exan1ple, you can set the deadlinefor filing court documents to be twO daysbefore the hearing date, with a reminder to

start preparing those documents a weekbefore and a reminder to report to the clientthe day after the hearing. If the hearing isrescheduled, all of those dates will berescheduled with it autOmatically. Thisensures that all relevant reminders are inplace, and that they will be rescheduled asrequired. While this is a simple example, itis JUSt as easy for you to establish chains oflinked events in a much more sophisticatedway, modeling the requirements of anygiven statute or the Rules of Procedure forany given court. These need only be set uponce, saved as a precedent, and then appliedany number of times. In this way, all of thenecessary legal reminders for given types oftransactions or cases can be set up and arereadily accessible. You can set up precedentsof this kind as reminders to report to yourclient after every step in a transaction,addressing another major cause of liabilityclaims - failure to report. The abil ity to cre­ate linked event precedents is somethingwhich could be taken further by someoneassisting your practice with risk manage­ment. Amicus Attorney Pro includes sever­al sample precedents which are helpful to

get you started.

In the "Basics" view of each file there is acheck box which can be used as a reminderif yOll do not work on any given file withina specified time. If such a file does gobeyond that period withour a time entry, a"To Do" item will be placed on your "ToDo" list. Automatically, you are remindedto check the sta tus of the file, and a noteabout this is placed on your Daily Report. Asimilar facility is available in Contacts forkeeping track of people to help ensure thatyou keep in proper touch with your clients.Amicus Attorney Pro helps you keep trackof the people with whom you work. Itrecords a list of your contacts which you caneasily track, limiting the risk of porentialconflicts of interest. Each person in yourpractice can be related ro the various fileswith which they are associated. When youopen a new file, you can simply search yourContacts to find out whether you have dealtwith that person before. If so, a quickreview of the files list on their Contact cardwill show you what files they were on. Youcan then open the files and readily deter­mine whether a conflicr exists in dealingwith that person on the new file.

With Amicus Team, the information forevery attotney in your office can be com­bined in a common database, providingshared information on files and people. Itfeatures linked check-lists between attorneyson the same file and the ability to see wharOthers have or have nOt done, group sched­uling and much more.

Amicus Attorney III has full internet e­mail integration, world wide web integra­tion, and will synchronize with the popularpalm pilot so that you can have all the "todo" and calendaring features in your coatpacker. Of course, your friends will wonderabout you when a very British voice comesout of your coat pocket with "Sorry to inter­rupt, but you have an appointment soon."It can be run on not only Windows 95, butalso Windows NT, and a tutorial mode ishelpful to get starred.

In document assembly problems, whenyou're generating a document with Word orCorel WordPerfect, a dialog box appears,letting you save the document and attach itto the documents brand of the relevant file.We have Hot Docs 4 which links to yourinformation in Amicus so that the fields inthe template files are automatically "filled"once you tell the compurer to send one ofyour standard template letters [that yourclients still think were personally dictated by

See Page 38

foI.lHt.l/Su.ler 1998 The lrkml! Ll"W 9

Want to cur your overhead? Feelthe need to spend more timewith your children? How about

taking advantage of the space you acquiredwhen your kids grew up and left you with an"empry nest"? Or JUSt wam ro make things

more simple? These are among thereasons given by some Arkansasattorneys who gave up "downtowndigs" and decided to 5[ay at home

ro practice law.Martha Miller Harriman decid­

ed on the home office rOute "ro

make my life as simple as possible."After she and state Senator MorrilHarriman were married in June of1992, Van Buren became her homeand plans for her office were incor~

porated into the couple's blueprintsfor a new home, which was com­pleted in December of 1992.Harriman is also an attorney, andhe maimains a traditional practicewith a traditional office on VanBuren's Main Street.

Ms. Harriman's specialty is gov­

crnmemal relations, a/kJa lobby­ing. This means that when theArkansas General Assembly is insession, her work is in dle statecapital (as is her husband's) and sheworks out of the corner of anapartment the couple maintains in

Litrle Rock.For about a year after she was

married, Ms. Harriman main­tained an office in Lirde Rock.Lowering overhead was on her list,bur nor at the top. "1 couldn't have

asked for secretarial suPPOrt from him.Like ochers who practice at home, Ms.

Harriman finds her computer indispensable.

Through the computer, she is in daily con­tact with diems in several states.

She does pro bono work for the Arkansas

their case over a cup of coffee," she said.She said none of her clients care that she

works our of her home. "For me it's great. It

fits my needs and life style just grear," she

said.

Joel Taylor practiced III

downtown Little Rock for 12years, about half of that in part­

nerships and half solo. Oneimpetus for moving his practicero his brick and stone two-storyhome in the Oak Forresr sec­

tion of Litde Rock in Januaryof 1996 was the "['ylor childrengrowing up and moving Ollt,leaving Taylor and his wife with

a large home.Other factors in the

move were {O get away fromhigh overhead, driving to workand for the convenience of hisc1iems. Clients had trouble

finding parking places down­rown. "If I had a 2 p.m.

appointll1eIH1 I could almostcount on the diem gerringthere at 2:30, and being exas­perated," Taylor said. Hisclients are more comfortable

now, he said. His overhead in1997 was ten per cent of his

groSSj downtown ir was

between 25 and 30 per cent.Taylor, who has a general

civil practice, remodeled thedownstairs of his home and

Tony Slone Images

Going Home to Practiceseveral places I needed ro be, so I shut it romake my life more simple," she said.

Ms. Harriman has a part-time secretary

ar Van Buren. In a crunch she can ger helpthrough her husband's law office, bur canrecall only [Wo or rhree times when she has

10 Thr \rk;lnsall.a\\~n lol.lllo.llSODllIlI'r IllS

Volunteer L"vyers for the Elderly (AVLE)and a legal services program, the RiverValley Volunteer Attorneys Project. Ms.Harriman ofren sees rhe pro bono c1iems ar

their homes, "or I can go down the street to

Hardy's and find a quite corner to discuss

by AI Schay

dedicated all of it except rhe kirchen to hislaw practice. His wife, Nancy, has served ashis secretary for a dozen years.

"If yOll can maintain a Chinese Wall

between your business and personal life, youcan make it at home," he said. "We make a

reaJ effort to segregate these functions, andwhen we go up5[airs at night we are out of

the office." His after-hours caBs are taken byan answering service, and he and his wife

often spend weekends at their Petit JeanMountain hideaway.

The advent of fax machines and comput­erized legal research make practicing athome possible, Taylor said.

The only downsides (0 home practice

Taylor mentioned were that his wife ofItaJian descent can't use garlic when shecooks because the smell would permeate thelaw office. Also, the occasional unan­

nounced drop-in client is disconcertingwhen Taylor's attire is less lawyer-like thanhe would prefer.

Finding YourNiche in Private

Practiceby Taunia Davis Stadterl(ye Mcleod struggled for a long

time with her decision to move herdoption-based practice to her home

in the Hillcrest section of Litrle Rock."There was my ego, for one thing, thinkingI had to be a downtown lawyer," she sajd.

She aJso worried abom how "professionaJ" itwouJd appear to practice at home. She madethe move in June of 1996, and said it was"absolutely, a good move."

American Bar Association articles about

home practice played a big role for Mcleodin making her decision. "They zeroed in onlawyers with a small, speciaJized, and solopractice, for people who were compmer lit­erate, and that fit me perfectly," she said.

Mcleod utilizes much of her home forwork. Her primary office is a sitting room

that can be closed off from the rest of the

house by French doors. She shares the officewim a parr-time secretary. Most of her con­tact with clients occurs away from her office,but if a client needs an office appointment inLittle Rock, she sets this up for a conferenceroom of a court reporting firm.

Her work schedule involves days, nights,weekends and holidays. "Babies are born

whenever they want to be," she explained.

Besides adoption and related work, such asguardianships, and some family law for for­mer clients, McLeod maintains an active role

in VOCALS-volunteer work with Legal

Services clients.Financial considerations were important

in her move. Mcleod said she has cut about

25 per cent of her overhead compared to

See Page 12

By the time I made the decision to go to

law school, I was a nursing school dropout,

had completed my bachelor's degree at nightschool, was inro my sec­ond marriage and hadbeen working in health­care administration forseveral years. I decided

that a law degree wouldcomplement my ambi­dons to move up the lad­der in healthcare adminis­tration and I never hadany ilUelHion to actuallypractice law. I also hadfour young children whokepr me. very busy when Iwas at home and a won­

derful husband who was

my cornerstone. Before Ibegan my final year of law school, I decided

I needed to be exposed to the actual practiceof Jaw before I graduated and had the good

forrune of being hired by Justice DavidNewbern as his secretary for a year. BecauseI was a law studenr, I was also able to work

as a law clerk at the same rime. That year

was pivotal in terms of my future career.During the fall of 1995, I was surround­

ed by SOme of the greatest legal minds in thestate at the ArkansasSupreme Court and oneof my courses at schoolwas Legal Clinic. I believethat I learned more aboutthe law and the practice of

law during mat year than Ihad in the previous threeyears of law school. It wasduring that period that Idecided I wanted to opena solo practice after gradu­ating and passing the barexamination. My hus­band, a heaJthcare execu­tive in Lirtle Rock, was, as

always, very supportive of

this decision. My true inspiration to open aprivate practice, however, came from my

father.

My dad had always encouraged me to gointo business for myself He was a chemistand executive in a chemical manufacturing

See Page 12

Oftentimes questions arose (and still do)that I thought were too dumb to ask any­one. But I could always call the people atthe Legal Clinic and get help without beingmade to fed foolish Ot stupid. If they did­n't know the answer, they would either hdpme figure out where to find it or direct meto someone who would know. That sup­POrt and encouragement gOt me through alot of low points that came during the firstyear of my practice.

Despite this, only three months afterhanging out my shingle I was ready to caBit quits. Not because I didn't think I couldmake it, but rather because I was frustratedwith the day-to-day pressures of the job andthe profound effect it was having on my lifeat home. I had started a general legal prac­tice and registered with the Arkansas BarAssociation's Lawyer Referral Service. Thenumber of calls I got every day was incredi­ble, and it got to me point that every timethe phone would ring I would cringe. Iknow that having a ringing phone is usual­ly the sign of a flourishing practice andthat's what everyone wants, right? But thestress was tremendous.

The questions that I got ranged from spe­cific questions regarding family law mattersto probate matters, criminal matters andquestions about starting a non-profit orga­nization. People wanted to know how toget patents and whether their employershad the right to engage in cerrain activities.There were questions relating to loca.I1.On­ing ordinances and juvenile law, general vio­lations of civil rights and one question wasabout whether someone had a case becausehe was "harassedn by local authorities about

Cominued From Page 11

plant in Tucson, Arizona, and by December1995. he was counting down the days to hisretirement so mat he would finally be freeto set his own pace and do the things mathe really enjoyed doing. He believed that ifI were to open my own legal practice mat Iwould have these opportunities early on,without having to wait until I was older to

enjoy them.During my final semester of law school,

5. my father passed away. I missed quite a bit~ of school and work during that time.j However, with encouragement from my! husband, family, and friends, and because I

didn't want to disappoint my father, nOtonly did I gtaduate, but I took and passedthe bar exam in July. I then opened a pri­vate legal practice in September of 1996.

I began my pracrice sharing office spacewith an esrablished attorney in an executivesuite in Little Rock. This was very helpfulbecause I had the support and legal exper­tise readily available to help me get on my(CCt. 1 learned very quickly after hangingout my shingle that even though I had a lawdegree and a license, I really knew very littleabout the practice of law. What I did know,I learned from my experience in LegalClinic. I can't imagine going into practice,particularly on my own, without havinghad that base. I learned how to deal withclients, where to find th~ anS\vcrs to myquestions and the process for workinglhrough situations mat arise. So fairly earlyin my practice. I was way ahead of where Iwould have been without my Legal Clinicexperience. And I continued to receive sup­port from there after I opened my practice.

Alvin Scha) is in privau practiu In LittleRock. He has sn-ved as executive director ofapprlum public drftlid" agrllcirs and dratiJpmalty resouru unUN in Arkansas andOklahoma. He was an assistant arrornry gen­eral in /978/80. Biforr becoming an arronuyin /975, he worked as a newsman in Lirrl~

Rock, N~w York City, Memphis andChattanooga.

Cominued From Page 11downtown; bur another big factor was thatmoving home allowed her to spend moretime with her daughter, Ali, now 6, whogoes to school in me same neighborhood.

Mcleod said many of her dients are onthe Internet, and it is far easier to commu­nicate with them using E-mail as opposed to

playing telephone tag. "Plus I have a copy ofall my E-mail, which goes into each client'sfile," she said. "I check my E-mail before mymorning shower."-:·

Ii Thr \r~aUliIJ Lalljer 101. 1110. 1/Sommrr IllS

his barking dog. It really was overwhelmingand I believed that if! didn't feel competentto handle a matter myself at least I knewenough about the particular area of law inquestion CO make an appropriate referral.The pressure that I put on myself was enor­mous. I was gening wough every day onlyby operaring under the philosophy of "fakeit 'til you make it. n

I finally reached a point where I didn'twant to go into the office not only because Ididn't want to hear the telephone ring, bur Iwanted a career change. I would have beenhappy to go back co any of the jobs that Ihad worked at before - a waitress, a sacker ata grocery StOre, a lifeguard, or anything thardidn't require having to think abour the law.I felt guilty because of the sacrifices my fam­ily had made and I was extremely frustratedwith many of the experienced attorneys withwhom I had been dealing.

Then I was invi ted to speak to one of theLegal Clinic classes about opening a privatepractice. Luclcily for the class, anotherattorney was there who kept a positive spinon the topic. I think I was very down oneverything about solo practice and didn'toffer much encouragement ro those stu­dents. At this point, I realized that I had tomake some kind of change and it had to

happen quickly.I men re-visited a word that had some­

how been eliminated from my vocabulary.The word is "NO."

When I staned my practice I was surethat I could be all chings to all people.Learning to say "no" again was one of thehighlighLS of my career so far. I suddenlyfelt free, like a huge weight had been lifted

from my shoulders. And remarkably, theworld didn't stop turning when 1said no. Infact, my world began to turn a little easier.

I then made an important decision withthe new year; I decided that I would beginto limit my practice to what I knew and feltcomfonable wim and to begin educatingmyself as much as possible in the area ofhealthcare law. I had found my niche and 1was going to do everything I could to estab­lish myself.

1 had many contacts in the area aJld Iknew that I couJd use that to my advantage.I began targeting my marketing effons withmese contacts. I aho began furthering myeducation in the health care field itself. Ijoined professional organizations for health­care lawyers and arrended CLE meetingsdirected at healthcare attorneys.

And I made another imponanr decision ­I decided to move my practice home. I setup an office in my house, eliminating muchof the overhead associated with rentingoffice space. And because I was limiting myclients to corporations and hea\chcare pro­fessionals, I knew that not having a publicoffice wouldn't be a problem. I could havemeetings with my clients at their offices, orI could meet them at a "neutral site." I'mself-sufficient with clerical matters so I did­n't need a secretary or receptionist. And Ididn't need lots of fancy office technology. Ihad a lap-top computer, a separate phoneline and answering machine for my busi­ness, and a fax machine that would alsomake copies. I knew that if I needed extraclerical suppOrt or had a large copying job, itwas readily available through 10caJ business­es. I was set. With this move home, I great­ly simplified my life.

My endeavor to limit my practice beganas a slow and easygoing process. In otherwords, I didn't have any healthcare clientsyet and needed to bujld chat base before tim~

iting myself. But I also found that the moreeducated I became in healthcare law and themore focused I became on individual areaswithin this field, the more comfortable I fcltin presenting myself as a healthcare attorney.Within a few months, I signed a contractwith a mid-size, non-profit heahhcare orga­nization and I felt like I had fmally broken abarrier. My comfort-level and job satisfac­tion increased significantly. I was asked to

give presentations to small groups on vari­ous healthcare law topics and it was gratify­ing to know that all of the work and sacri­fices that my family and I had made werefinally beginning to payoff.

] have cominued to refine my educationand expertise in healthcare law. With all ofthe government initiatives in the area, keep­ing up with developments requires dailystudy. I subscribe to journals and periodi­cals that help me with this and I've beenattending at least one healthcare law confer­ence approximately every four months.This has been time-consuming and at timesexpensive and there have been times thatI've wondered if establishing this niche wasreaUy worth it. But upon reflection, I knowthat the time, expense, and effon has beenan investment in my future and are wellworth it.

I am now, less than t\vo years into my lawpractice, successfully limiting my practice tohealthcare law. The field encompasses a

variety of topics including fraud and abuse,antitrust, tax-exempt corporations, employ­ment issues, managed care and COntractissues. I can say now that I truly am happywith the work I do in my private practiceand I have much more confidence that I amtruly a skilled practitioner. Ofcourse, I haveto continue to study and fine-tune my skills,but that's pan of the fun and the challenge.To me, heaIrhcare law is never boring andalways changing. These are the aspects thatdrew me to love and appreciate the practiceof law in the first place.

I truJy respect those individuals who canopen and maintain a general law practice. Iknow how much effort and patience it takes.Bur I think that attorneys who focus theirpractice are also vital to our industry. I seemany similarities between the ever-expand­ing praccice of law and development of legalniches to the specialization in the practice ofmedicine.

The law is vast, covering every aspect ofour society, and I believe it is imperative thatmore lawyers become "specialists" in themany differenr areas of the law to betterserve our clients. I never really thoughtabout it in law school, although I d.id realizethere are some recognil.ed legal specialties,such as tax and oil and gas. But 1 neverthought that a solo practitioner couId realis­tically limit a practice in other areas. Ialways believed that solo practitioners need­ed to be generalists. It was only after I gotinto practice myself that I discovered that aperson doesn't have to join a large firm to

limit his or her practice.I have found that the real key to being

successful in the practice oflaw is to practicewhat you know andlor what you enjoy. TheAavor of a law practice is determined by theindividual practitioner's interests, mixedwith continuing education and is oftemimesfolded in with the practitioner's previolls lifeand work experiences. The result can be apractice that is appealing and satisfying to

the practitioner and one that he or she willfeel good about promoting and marketing.

You've heard the saying, "If you build it,they will come." I believe that the same istrue of a law practice which is limited inscope. The client who is purchasing yourlegal services will not necessarily want orneed that particular service all of the time,but as long as you've built it, maintain it andcontinue to improve it, there will be some­one who does come and who tells others to

See Page 14

1'01. II 10. l/Summer IllS The ,Irkansas La~]er II

Continued From Page 13

corne as well.Of course, there is a down side to the

"Main Sereet" law office of a solo practition­er that focuses in olle particular area, and

that's having to compere with the "shopping

center" legal practicesthat sell a little bit ofeverything. Ir's toughcompcring against rhe

big guys at rimes. espe­cially since rhey offer

one-stop shopping. ButI know frolll experience

that perseverance, high­qualiry service and per­sonal 3ncnrion ro myclients will keep me inbusiness. I believe that

the most imporranr

aspen of that succes isthat my practice can

offer the personaJ [Quchthat isn't always available

or feasible at the "mall."

Recendy, on a long flight ro Disneyworld

with my family, I was thinking about what a

great decision I had made during my last

year of law school when I chose my future

boss. My boss can be very tough and

demanding, but she keeps the «red tape"

minimal in decisions - such as when I can

rake my vacation and how long I can be

gone, how many hours I spend at work on

any given day, the dress code, whether I have

time to take my children

to their denral appoint­

ments or can volunteer to

go on their school fieldtrips. There is also a great

deal more flexibility in

how many billable hours

I have ro have for me

firm, who I can accept asa client and how ro man­

age and prioritize my

cases. My father was

right. I'm free to set my

own pace and to do the

things I really enjoy

doing. And while I do

nor live ro work, I enjoy

the work that I do. And

more importantly, I work

to enjoy those things that matter most in

life. Finding my niche in the practice oflaw

and going home to practice have given me

that opportunity.+

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IAWYERSMAKE IT HAPPEN...

Lawyers are 100 often the unsung helVes in l1umy of the communities ill Arkansas. As part of our Ce1l1ellllialCelebration, the Arkansas Bar Association has implememed a project, "JOO Hours for 100 Years," 10 give the public amore realistic image of ollr legal cOf1ll1ltwity and their consistellt vo/unteerisnl. BUI we need your help. By participatingin the "100 Hours for 100 Years" project this yew; all of us can rake parI in recognition of our profession's contribu·I;OIlS to our C0I111nllll;ties Gnd Ollf Slate. We want to show thalllot Dilly can lawyers make it happen - but they've beenmaking it happen for years.

THE TRADITION CONTINUES

Jim F. AkinsBrian W. AlbrightH. William Allen

Blair ArnoldE. LeRoy Autrey

Joyce Bradley BabinJames A. BadamiAnthony Bartels

Paul B. Benham, ILlMark Binns

Anthony W. BlackJanet L. BledsoeC. Tad Bohannon

Clifton BondDan R. BowersRobert Branch

William C. BridgforthRobin Brown

Thomas E. BrownWilliam Jackson BUll, II

Craig A. CampbellThomas M. Carpenter

Phillip CarrollH. Murray ClaycombPat Jackson Compton

Vicki S. CookBarry E. CoplinM. Gayle Corley

James O. CoxJames E. CrouchJames D. CypertBoyce R. Davis

Michael 1. DennisTerri A. DeSio

Jeffrey H. DixonMelissa R. Dorn

Annamary DoughertyRichard C. Downing

John C. EcholsW. W. Elrod, IIAlan D. Epley

Lewis E. Epley, Jr.Audrey R. Evans

Janie M. Evins

Ann P. FaitzRoger H. Fitzgibbon, Jr.

Victor A. FlemingKay West Forrest

Andrew FulkersonC. Alan GauldinLisa G. George

Diane A. GibsonMelinda R. Gilbert

John P. GillGerard F. GlynnRay A. GoodwinTodd A. Greer

Charlotte L. GreerWendell L. GriffenDennis B. Haase

Rita R. HaleDon F. HamiltonDavid K. Harp

James E. HarrisCharles L. HarwellAlice L. HolcombJohn T. Holleman

Don HollingsworthP.A. Hollingsworth

Eugene HuntBlaine A. Jackson

William O. James, Jr.Mark R. Johnson

Louis B. Jones, Jr.Robert L. Jones, J r.

Jim L. JulianPhilip E. Kaplan

Charles M. KesterDeborah A. Knox

Stanley R. LangleyHugh R. Laws

Ike Allen Laws, Jr.Ike Allen Laws, III

Robert B. LeflarHarry A. LightMartin E. Lilly

Mark LindsayHugh E. Longino, Jr.James M. LuffmanDiane S. MackeyJeffrey G. MaimBarbara A. MaimHoward L. Martin

Stephen A. MatthewsDavid R. Matthews

Michael L. McCauleyMary S. McGowan

Thomas H. McGowanD. Malcolm McNair, Jr.

Jack A. McNultyBrandy M. McShaneHenry N. Means, [IT

Russ MeeksHarry Truman Moore

R. Scott Morgan

Tim W. MurdochCharles R. Nestrud

Wyck Nisbet, Jr.R. Gary utter

Bobby Lee OdomRichard P. Osborne

Laura E. PartlowWilliam L. Patton, Jr.

Donna C. PettusE. Lamar Pettus

Randy F. PhilhoursDavid J. Potter

Kimberly S. PulleyLouis L. Ramsay, Jr.

Brian H. RatcliffKen Reeves

Bill D. ReynoldsLee RichardsonChet A. Roberts

Kathryn W. Roberts

Mark RobertsJudith Rogers

Brian M. RosenthalApril M. Rye

Isaac A. Scott, Jr.Jay F. Shell

Scott M. SimmonsWilliam R. Simpson, Jr.

Susan M. SkinnerHoward L. SlinkardGregory G. SmithRodney K. SmithJ. Timothy Smith

H. Vann SmithCarla G. Spainhour

Jim D. SpearsJanis C. Speed

J. William Spivey, IUJames D. Sprott

Paula J. StoreygardJoseph A. Strode

Judge John F. Stroud, Jr.William H. Sutton

Gregory D. TaylorC. Tab TurnerFred S. Ursery

A. Glenn VasserLarry D. Vaught

Joe VolpeGuy Alton Wade

Wyman R. Wade, Jr.Douglas Wallace

Henry G. Watkins, IIIJohn D. Watson

Ann WestCharles N. WilliamsW. Jack Williams, Jr.Wade Allan Williams

Misty J. WilsonRussell B. Winburn

Carolyn WitherspoonKeith N. Wood

Ronald G. Woodruff

Marsha Choate WoodruffRobert R. Wright, III

W. Kelvin Wyrick(as of 711 4/98)

~

~~·9~e~ 1898-1998~lVd oar

100 HOURSFOR

100 YEARSComplete this form and retuMl it to the A,·kallSas Bar Association when youhave completed 100 hom·s ofcommunity se,·vice during the past 12 months.

This project is part ofour Centennial Celebrationandyou will ,·eceive ,·ecognition.

Arkansas Bar Association· 400 West Markham· Little Rock, AR 72201 ·501-375-4606 or 800-609-5668

HoursI. Church, Synagogue or Mosque Work

(other than reguJar attendance)

2. Service on national, state, or localgovernment board, commission, committeeor task force(no compensation was paid)

3. Civic Projects, indudjng nonprofit boardsand comminees(other than attendance at service club meetings)

4. Free Legal Assistance(through organized pro bono programs or

individually with up from pro bono commitment)

5. State or Local Bar Association Outreach EffortsDisaster Relief. Lawyers for Literacy, Mock Trial,Law Day Activities, etc.

6. Other (specify) _

TOTAL HOURS SERVEDDURING PAST 12 MONTHS

NUMBER OF THESE HOURSBENEFITTING CHILDREN

Narne City _

(Please Print)

Signature Date _

Please Describe Three Primary Activities from Above:' _

(for additional comments, plcuc lI# back of form)

I certify that I have perfonned 100 hours ofcommunity service for which no C011lpelLSation was received.

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Show Me The Money.(So Fast)

• • Not!

A primer for defending attorneys fee petitions

by Patricia J. Hays

Losing a trial is bad enough, bur it addsinsult ro injury when rhe loss occurs in 3.

case with a fee-shifting statute. Beforeyou can even unpack your briefcase,

opposing counsel serves you with a feepetition weighing several pounds, whichhe has thoughtfully hand-delivered to

your office. Keep in mind, this is thesame opposing counsel who throughoutthe litigation never once timely respond­ed ro a motion or a discovery request.Yct, the exhilaration of winning has

inspired her ro stay lip all night preparing

her fee petition which she now expectsyour client {Q pay without question.Before you call your client and (ell him towrite a check, grab your caJculaw( and a

bottle of aspirin and head for the lawlibrary. You're in for a lor of work, but itwill be worth it if you want to save your

client some money.Remember that the purpose of fee­

shifting statutes is to ensure effectiveaccess to the judicial process, not to serveas full employment or continuing educa­tion programs for lawyers and paralegals. I

\Vith this thought firmly in mind, youare ready to begin your artack on theexcessive fee petition. It is imperative,however, thar you make it easy for the

judge ro reduce the fee award. Don'texpect the court ro meticulously dissect

the fee petition and exrract the offendingportions. In fact, most courts will rou­

tinely approve fee petitions if no seriouschallenge is mounted. After all, it's not

the court's money at stake. It is yourresponsibility to carefully examine the feepetition and demonstrate to the court

why the fee should be reduced. A well­organized, thorough, and legally-support­ed analysis will be effective in persuading

the courr to substantially reduce rhe fee

award.

IS Thp .Ir\ansas l,allfPr 1'01. nXn.l/Summpr 1995

THE LODESTARThe starring point for determining a rea­

sonable attorneys' fee is the calculation ofthe "lodestar" which is done by multiply­ing a reasonable hourly rate by the number

of hours reasonably expended on the litiga­tion. 2 However, the prevailing party is nornecessarily entitled to this amount. Theparty seeking a fee award is responsible forsubmitting evidence supporting the hoursworked and rates claimed. Where the doc­

umentation is inadequate, the court mayreduce the award accordingly.3 Typically,the court computes the lodestar by ascer­

taining the time counsel actually spent onthe case and then subtracting from that fig­ure hours which were duplicative, unpro­ductive, excessive, or otherwise unneces­sary.4 In making the final lodestar determi­

nacion, CourtS generally apply twelve fac­tors5 to determine whether to adjust thelodestar upward or downward to arrive atthe appropriate fee. These f.tctors are as fol­lows:(1) time and labor required;(2) novelty and difficulty of the questions;

(3) skill requisite to perform the legal ser·vice properly;

(4) preclusion of other employment, due

to acceptance of case;

(5) the customary fee;(6) whether the fee is fLXed or contingent;(7) time limitations imposed by the client

or the circumstances;(8) the amount involved and the results

obtained;(9) the experience, reputation, and ability

of the attorneys;(10) the undesirability of the case;(11) the nature and length of the profession­

al relationship with the client; and(12) awards in similar cases.

Of these twelve factors, the United Stares

Supreme Court identified the results

obtained as the mOSt important one andsaid that it was particularly crucial where aplaintiff is deemed prevailing even though

he succeeded on only some of his claims forrelief.6 The Supreme Court noted thatmany of the other twelve factors are sub­sumed within the initial calculation of hours

reasonably expended at a reasonable hourlyratc.7

REASONABLE HOURLY RATEThe easiest parr of the lodestar equation

to analYLe is the "reasonable hourly rate."

The court is not bound by the hourly raterequested by the victor's counsel; rather thecourt may establish a rate that it considersreasonable based upon counsel's skill and

experience and prevailing marker rates.s Astarting point for this determination is theattorney's ordinary billing rate. However,

this rate is nOt conclusively reasonable burshould be compared to the usual and cus­tomary fee for similar work in the commu­ni£y.9

The Eighth Circuit defines the relevantcommuni£y as the one in which the case wastried. everrheless, if a plaintiff can showthat he was unable to retain qualified localcounsel despite a diligent, good faith effort,other rares may apply.l0 However, there are

relatively few situations in which the use ofour-of-state counsel is justified. Plaintiffs

certainly have the right to choose our-of­

state counsel to represent them, but thedefendant should nor have ro bear this extra

expense, especially when competent, quali­fied local counsel exists. Therefore, if theprevailing counsel is a member of another

state's bar, the reasonable hourly rate, forpurposes of the lodestar, will generally be

that of the particular Arkansas communitywhere the case was tried.

Prevailing counsel bears the burden ofproducing satisfactory evidence, in addition

to the anorney's own affidavit, that therequested rates are in line with those prevail­

ing in the communiry for similar services by

lawyers of reasonably comparable skill, expe­rience, and reputation. I I At a minimum,

counsel should inform the court of his or

her qualifications, experience (especially inthe subject maner of the litigation), andordinary billing rate. Affidavics from other

local anorneys who practice in the samefield should be submitted as further supporrof the requested billing rate.

If the prevailing counsel fails to submit

any proof of his skill, experience, and quali­fications to support the reasonableness of hisrequested rate, there are a few things youshould do. First, provide me court withsome information concerning the prevailinganorney's background yourself This infor­

mation may be limited to only a Martindn/~­

Hubb~" listing, but it will at least reflect thenumber of years of practice and the generalscope of the attorney's practice. Even thisminimal information can be instrumental inreducing the hourly rate, especially if it indi­cates that a lawyer was recently licensed or

that his or her normal practice is in a totallyunrelated field.

AnOther generally fruitful exercise is to

review fee petitions and affidavits that the

prevailing anomey has submitted in othercases. The anorney may have attached aresume or included a statement in a fee affi­davit arresting (0 a lower hourly rate than

that currently requested. Additionally, theanorney may have ubmined affidavits fromother anorneys to suppon the lower hourlyrate. The defending counsel can use dIOse

affidavits to establish the reasonableness ofthe fee requested. Most importantly,remember to review orders from other cases

in which the prevailing counsel was awardedattorneys' fees. It can be very persuasive toshow the court that another judge awardedthis same attorney a lower hourly rate in asimilar case. Remember that even a $25reduction in the hourly rate can mean a sig­nificant savings for your c1iem.

REASONABLE NUMBER OF HOURSEXPENDED

Once a reasonable hourly rate is estab­

lished, the really inceresring pan of defend­ing the fee petition begins. Fee petitions areeasiest to defend when the requested feebears no rational relationship to the results

achieved such as when the judgment is

$ I5,000 and the prevailing counsel seeks a

There are several valid reasons for

asking the court to reduce the

number of hours claimed by pre­

vail.ing counsel. These reasons

include lack of specificity in

billing, block billing, over­

Slaffing, performance of unneces­

sary and duplicative work, and

biUing inconsistencies.

fee award of $ I50,000. The prevailing parry

would hardly be pleased if his lawyer pre­sented him with a bill for ten times theamount of the recovery. Similarly, yourclient should be less than emhused aboutpaying such a bill. Remember that "[a] rea­sonable attorney's fee is one that is adequate

to attract competent counsel, but... [thatdoes] nOt produce windfalls to attorneys."ll

ow it's time to use that caJculator. First,simply add the number of hours requested

to see if the tOtal is correct. It is amazinghow often the addition is incorrect. ext,try breaking the bill (or bills if multiplefitms participated) into broad general cate­gories such as pleadings, corres­pondence/conferences, research, discovery,

trial preparation and trial. Put everythingthat does not easily fit imo one of these cat­

egories into a miscellaneous group.Alternatively, you may find it easier to cate­

gorize the bills by phases of the litigation,

i.~., investigation and complaint, discovery,motions, trial preparation and trial, andmiscellaneous. Amounts that may initiallyappear reasonable when reviewing a bill can

rake on a rather sinister appearance when

viewed in this manner, particularly if there

are two or more attorneys billing on rhe

case. If there are multiple attorneysinvolved, analyze the bills as a whole, rather

than individually because abusive billingpractices will become much more obviousthis way.

At this initial stage of the review process,be aware of patterns that begin to developsuch as several attorneys all performing the

same task, ~.g., abstracting depositions. It isnot necessary for all of the prevailing parry'sattorneys to absHaCt the same depositions,even if the attorneys are located in differemcities or states. Furthermore, a paraJegalbilling at a much lower rate can perform thiswork more efficiently. Also, watch for mul­tiple attorneys billing for attendance at

depositions or conferences. Finally, be sus­picious if a prevailing attorney who claimsexpertise in a particular area of law has alarge number of hours billed for research,particularly imo serried areas of law.

REDUCING THE NUMBER OFHOURS

There arc several valid reasons for askingthe court to reduce the number of hoursclaimed by prevailing counsel. These rea­sons include lack of specificity in billing,

block billing, overstaffing, performance ofunnecessary and duplicative work, andbilling inconsistencies. The Eighth Circuithas instructed trial judges to weigh thehours claimed against his [or her] ownknowledge, experience, and expertise of thetime required to complete similar activi­ties. 13

LACK OF SPECIFICITYAt a minimum, the documentation

offered by an attorney seeking a fee award

ushould identify u,e general subject matterof his time expenditures. "14 Chief Justice

Burger took this requirement a step further,stating that when a lawyer seeks to have hisadversary pay his fees, the lawyer muSt pro­vide derailed records of the time and servicesfor which fees are sought. IS Detailed

records are necessary, according to JusticeBurger, because a court should nOt authorize

the payment of attorneys fees unless the

prevailing attorney has established by clearand convincing evidence the time and effortclaimed and shown that the time expendedwas necessary to achieve the results

obtained. IG

The fee applicant bears the bu.rden of

See Page 20

1'01, II No. I/So.mer 1Y9S 1'he ,Irkmas LaWler 19

Comillued From Page 19establishing emidemem to an award by

properly documenring the appropriate hoursexpended and hourly rates. Inadequate doc­umentuion may warrant a reduced fee. ll

Incomplete or imprecise billing records pre­

clude the court from making any meaningfulreview of the fee application for excessive,redundant, or otherwise unnecessary hoursand may make it impossible for the Court to

ascertain a particular anomey's time expend­ed on a specific issue or claim. IS

Casual after-the-fact estimates of time

spem on a case are insufficiem to support anaWard of anorneys' fees. Anorneys who

anricipate making a fee application mustmaintain contemporaneous, complete andstandardized time records which accuratelyreflect the work done by each arrorney.19

Some courts have substanrially reduced oreven disallowed fees ahogether in the absenceofcomemporaneous time records to substan­tiate fee requests. 20

Lack of specificity in billing is easy to

idenrify. Check the billing statemenrs for

time entries described in the following rerms:

meet with diems," "conference withcliems," "meet with witnesses," "meet withco-counsel," "review file,'" "'egal research,"

and "triaJ preparation." Such descriptions

fail ro provide any clues regarding the type ofwork which was actuaJly done or its purpose.\'(Iith so little information, it is impossiblefor the court ro determine if the time spenr

was reasonable and necessary in the prosecu­tion of the case. Therefore, these are some ofthe easiest time entries for the coun to elim­inate from the fee award.

If you find several of these vague time

Mitchell Williams welcomes ournew attorneys.

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entries, itemize them right in the text ofyour

brief. Don't expeCt the cOlin to go diggingthrough the fee starement to find them. Set

forth the date, vague description, and

amount of rime billed. Particularlyempha­size time entries of severa] hours duration

that have no satisfactory explanation regard­ing how the time was spent. Courts are gen­erally willing to reduce fee awards where the

time entries are so vague that they cannotdetermine with certainty whether the timewas even relared to the instant litigarion.2 \

-[U]ncertainries should be resolved againstthe plainriff if arising because of imprecise

recordkeeping without adequate justifica­tion,"22

BLOCK BILLINGBlock billing is another improper billing

practice that is relatively simple ro arrack.Block billing occurs when a number of dif­ferent activities are grouped rogether wirhone single claim for time. For example, asingle time entry consisting of six hours maybe described as: "research ADA: substantiallimitation on major life activity of working;

draft section of response brief on this issue;revise brief; telephone conference with clientre: affidavit for brief." This practice makesit impossible ro determine how much timewas allocated to each activiry, leaving the

court no way ro separate the proper portionsof the claim from the improper portions.23

Again, take the time in your brief ro high­light some of the more egregious blockbilling enrries for the court. It is not neces­sary, or even practical, ro include an exhaus­

tive list of all of these enrries in your brief.However, isolate those examples that empha­

size the point. Keep in mind that vague,nonspecific descriptions often abound with­in block billed enuies so there are usuallyrwo possible avenues for reducing these fees.

OVERSTAFFING AND UNNECESSARYOR EXCESSIVE WORK

Overstaffing occurs mOSt often when sev­

eral attorneys represent the same client.When this situation arises. determine

whether the client/anorney ratio makes it

appear that practically every plaintiff had hisor her own lawyer. [fso, by emphasizing this

faa, you can often convince the court thatthe case was overstaffed, especially if youdefended the case by yourself.

The United States Supreme Court recog­nized that cases may be overstaffed anddireCted trial judges to scrutinize fee requests

for excessive, redundant or otherwise unnec­essary hours which law firms would exclude

from bills to their own clients.24 Billing

judgment is an important component in feesetting. "Hours rhat are not properly billed

to one's client also are not properly billed roone's ndv~rsnry pursuant to statutory author­iry."25

Remember those panerns of excessive

billing you initially idenrified such as severalla'\vyers abstracting the same depositions?Bring them to the court s attention now bygrouping rogether, by ropic, some of the

more blatant examples. Identify specific pro­jects performed by more than one anorneysuch as drafring or responding to dispositivemotions, preparation of jury instructions, orwitness preparation. Then make a chartshowing the attorney, date, description, andamOunt of billable time charged co the par­ticular activity. Where multiple attorneys

represent the prevailing parry, you will oftenfind that the total number of hou rs expend­ed on a given project is excessive.

Overstaffing is also apparent when rwo ormore attorneys charge for time spent atdepositions or trial, especially when only one

of the attorneys actually participated, Somecourts have held that absent an explanation,a fee request for several attorneys in atten­dance at hearings where only a single atror­ney's presence was arguably necessary isexcessive.26

Finally, a bill reflecting an unusually largenumber of hours biUed in one day is a red

flag that you should wave. For example, ifanattorney bills over rwelve hours in a singleday, you may convince a court ro be skeptical

of such a claim. Certainly, as the numberincreases to fifteen or more hours per day, itbecomes easier and easier to convince theCOLLrt that the time charge is unrealjstic. Inone case, a court found that the accuracy ofthe time records was called into question bya lawyer's claim that he logged 18.9 hours inone day. The court said that "[tlo accom­plish this, he would have had to have been

in his office from 5:06 in the morning untilmidnight, without taking any time for meals,to relieve himself or to do anything else. n

Therefore, billing 18.9 hours in one day is"almost ipso facto excessive."27 Any such Out­

rageous examples should be brought to thecourt's attention.

LIMITED SUCCESSThe number of hours claimed will be

reduced significantly if you can successfully

persuade the court to subtract fees attribut­

able to block billing, vague time entries, andexcessive work precipitated by overstaffing.

You may also want to attack the praCtices ofcharging the full hourly rare for travel time orfor work used in another case, such as form

interrogatories. Be prepared to produceproof that the work prodUCt was "recycled"for use in your case. After both the hourlyrate and the number of hours expended arereduced to more reasonable levels, ask thecourt to further reduce the lodestar due to

the prevailing parry's limited success. Ofcourse, this tactic works only in those situa­tions where the prevailing parry actuallyenjoyed only limited success on his claims or

damages.For instance, if the plaintiff asked the jury

to award $1 million in damages, but receivedonly $50,000, this result could fairly be char­acterized as limited success. Additionally, ifthe plainriffhad several different and distinctclaims, but prevailed on only one of them,most courtS would likewise consider thisresult to be limited. Always put into per­spective for the court the fee requested versusthe results obtajned. For example, if a parry

recovers $15,000, bur his attorney requests a$150,000 fee, the fee is ten times greater thanthe amount recovered. When viewed inthose terms, mOSt courtS would agree that thefee is excessive.28

Remember that the trial court has discre­

tion in determining the amounr of the feeaward and that the most critical factor in

making this determination is the degree ofsuccess obtained. Therefore, if the plaintifffailed to prevail on all of his claims, list the

claims for the court and emphasize the oneswhich he failed to establish. If all of theclaims are interrelated or relied upon intro­duction of the same evidence, it may be moredifficult ro convince the court to reduce theaward on this basis. However, appeal ro thejudge's discretion. Even where the successfuland unsuccessful daims are related and thehours are nOt easily allocable to a particularclaim, a court can still reduce the fee in rela­

tion to the results. 29 If the prevailing attor­neys obtajned results far below their expecta­

tions and performed unnecessary work on a

case that was relatively straightforward withno novel issues, the court should reduce the

fee award accordingly.

COSTS AND EXPENSESCosts and expenses can add considerably

See Page 22

fol. II Nt. l/Soller IItS Tbe ,Irkma! LaWler j I

Ms. Hays is n /989 bonorgraduauoftlu UALR

School ofLaw wheu slu was Managing Editor of

tlu UALR Law Journal Silt is cttnrntly employd

as in-house litigation counsel flr Southwestern Bell

ulephone Company in Little Rock. Prior to her

employment at Southwestern Bell, Ms. Hays defend­

ed an attonllY fie application for the City ofLiukRock in which the plaintiffs' Ilttorneys petitioned the

courtfor over $/94,000 in fus and costs. The court

IlItJIlrded the plaintiffs only $35.000. The IlwIlrd

was "cemly affirmed by the Eighth Circuit Court of

Appenu.

POSTAGE AND PHOTOCOPYl GPostage and overnight mail fees are not

COStS within me meaning of 28 U.S.C.§ 1920. Instead, these items are consideredmerely overhead or general our-of-pocketexpenses which are not recoverable.3s

Expenses for printing and photocopyingare generally recoverable as costs. Prevailingcounsel needs to indicate the number ofcopies made, state the price per copy. anddescribe what was copied. Absent anyreceipts or documentation regarding copy­ing costs, they will normaJly be disaJlowed.

See Page 39

EndnOtesI. Lipmr I'. Bumco, 975 F. 2d 934, 938 (1st Cir.

1992).

A FEW FINAL THOUGHTSAs a finaJe to your brief, attach a copy of

the prevailing attorney's fee statement. Onit, next to appropriate time entries, write areason why the fee for that particular serviceshould be disallowed. For example, indicate"block billing," "vague," or "overstaffing."Then, subtract these time entries to arrive ata total reduced fee. in lieu of this practice,at least give the COUrt an amount which yOllbelieve is reasonable for the work performedand results obtained. When you've com­pleted this task, it's time to take thoseaspirin and head for home.

WITNESS/PROCESS SERVER FEESFees associated with lay witnesses such as

statutory witness fees and process server feesare recoverable as COSts. However, me pre­vailing parry needs to list the names of thewitnesses on whose behalf he seeks (Q recov­er and provide documentation ro supportthe process server fees. Remember thatsome fee shifting statutes expressly authorizethe payment of expenses associated withexpert witnesses. while others do not.

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COURT REPORTER EJ(J'ENSESFees of the coun reponer for any pan of

the transcript obtained for use at triaJ arerecoverable as a cost pursuant {Q 28 U.S.C.§ 1920. Some couns have held that the costsof taking and transcribing depositions alsofit within the meaning of this statute. Othercouns have held that for the depositionexpenses to be recoverable, the depositionsmust have been reasonably necessary to thelitigation and used at triaL33 Still othercouns have held that absent a speciaJ show­ing, COStS should not be taxed for deposi­tions nOt used at trial.34

bursed.31 Other courts have taken a "lessliberaJ view toward aJlowing our-of-stateatlorneys such items as travel, lodging, park~ing, and long distance telephone calls so asto refrigerate undue enthusiasm for engag­ing our-of-state counsel."32

Aunique combination of expert wi/nesstestimony and state-of-the-art animation:

• Licensed ProfessionalMechanical Engineer

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TRAVEL EXPENSESUsually the single largest expense Item

will be for travel~related charges such as air­fare, hotels, and meals. Many of the chargesarise due {O the hiring of out~of-state attor­neys. Other expenses arise from traveling totake depositions or attend triaJ. Regardlessof me source of the expense, travel~related

expenses are simply not recoverable as"costs." Some courtS have stated that sincethere is no need {Q employ out-of~state

counsel, travel expenses should not be reim-

Continued From Page 21{O me {OtaJ award requesred. Some fee~

shifting statU[es indicate certain expenseswhich are recoverable as COSts.30 If a starutedoes nor define "coStS," then it is lIsuallysafe {Q rely on those costs enumerated in 28

U.s.c. § 1920. This statute is very speci"cregarding which costs are recoverable.

tt fbr Irkml! LlII")rr \'01. 1110. l/Sommrr 1998

1998 ANNUAL AWARD RECIPIENTS

Arkansas Bar AssociationArkansas Bar Foundation

James H. McKenzieOutstanding Lawytr

TIN Outrlllndinluwyn AWIlnJ is givtn inrrcognition of txttllntct in tIN prama oflaw and oumanding contributions to ,INpro/mion.

For the past thirty years JimMcKenzie has proven himself ro bea credit to rhe bar, his communiryand his state. He is widely recog~

nized throughout this stare as oneof (he rop-notch trial lawyers inArkansas. In addirion, and moreimponandy, Jim is an absolurelyhonorable and professional atror­ney. "In aU his years of trial prac­dee, Jim has never Cut a corner, hisword has always been gold, and hisinregriry has always been beyondreproach. Jim is one of the lasr ofwhar...may be a va.nishing breed ­of trial lawye.rs, whose excellence incoun is exceeded only by their per­sonal honor and dignity." Thesenatemenrs, made in nominatingJim, caprure many of his qualitiesand virtues.

Jim was schooled in the profes­sion by one of the truly great ge.n­demen of the law, his fuher,Horace McKenzie., and he has car­ried on the tradition instilled inhim of civiliry, honor and integriry.Jim has served his profession in var­ious leadership roles includingPresident of the Arkansas BarAssociation, Chair of the ExecutiveCouncil, and on numerous com­mittees. As a Fellow of theArkansas Bar Foundation, he hasserved on the Board of Directorsand as a member of the TrusrCommittee.

Charles B. RoscopfOutstanding

Lawyer-CitizenTht OutsCilnJint uWJ"-Citiun Award isgium in rrrognirion ofoll-manaing partici­pation in and(Xcrlkm pnformanct ofcivicmponsibilirif1. lindfor Jnnonsmuing highstandards of pro{roio1tJl1 comptttnct andconduct.

Charles B. Roscopf has will­ingly and fairhfully served hisprofession and his communiryand has made significant contri­butions to bOlh for more thanforty years. He has led many ofhis professional organizacions,serving as President of theArkansas Bar Association,President of the Arkansas BarFoundation and President of thePhillips Counry Bar Association.He is a Fellow of the ArkansasBar Foundation and theAmerican Bar Foundation. Hewas a member of the ArkansasState Board of Law Examinersfor a number of years, also serv­ing the Board as Chair.

In addition to his many barleadership roles. Charles' accom­plishmenrs in his community arenumerous. Charlie was active innate politics as a member of theArkansas House of Rep­resencatives for three rerms. Hehas served as a member of theBoard of Directors for theHelena Chamber of Commerce,Helena United Way and EastArkansas Council Boy ScoutS ofAmerica. He is a Past Presidentof the Hdena-West HelenaIndustrial Development Corp­oration and rhe Helena-WeSfHelena Rotary Club. Chairman.

John P. GillCE. Romick Award of

ExcelltllceThiJ aUlard if tivm in rtCOf"irion oftxtra·

ordirtllTJ snv;ct to fix kga/ profroion.

John Gill's record ofservice lO

the legal profession began yearsago while he was a law studellland has continued since thattime. His goals and determina­tion throughout the years lO

advance the interest of and toimprove the legal profession areevidenced through an unparal­leled sense of responsibility andcommitment.

John is a dedicated member ofthe Arkansas Bar Association anda Fellow of the Arkansas BarFoundation, having served bothorganizations as President. Hehas also been a member of theAssociation's Ex~tive Counciland House of Delegates, in addi­tion to serving on a mulrirude ofcommitrees. He served as Chairof the Building Comminee forthe Arkansas Bar ~nter and hasbeen a faculty member for theArkansas College of TrialAdvocacy. John is a Pasr·President of the Pulaski CouneyBar Association and is very acrivein his community.

John's dedication to the legalprofession is embodied in 0" th~

Courthous~Squau in Arkansas, apicrorial book he co-authoredwith his wife Marjem.

Bud B. WhetsloneOutJIanding Lawyer-

HumanitarianTht Oumandi,,!. lAwyrr-HumanitarilmAward is givm to rrrogniu oumondinghumanitarian smJict.

According to Bud Whetstone,"What you're worth is what yougive away." Bud has given muchto his community, both in timeand financial support. He hasbeen generous with his time, lec­turing on the subjects of torts andworkers compensation. He alsoserved as Chair of the Workers'Compensation Section of theArkansas Bar Association and co·authored the Workers'Compensation System Hand­book published by lheAssociation. He has been hon·ored by the Arkansas TrialLawyers Association, receiving[he Outstanding Trial LawyersAward.

He has been generous to thecommunity in his financial sup­pon for many years. Accordingto a r«em Arkansas limes arti­cle, he •...s[arted giving hismoney away almost from themoment he starred earning it.First it was [0 his college, then to

his law school. Then, gifts to var·ious causes." Bud recendy con­tributed $ J million ro the GreaterLittle Rock Boys Club, honoringa promise he made [0 his late son,Dal[on.

III. II SI. lllllllr illS Til lrkmil LIW)lr 1l

IUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIU lUlU lUlU lUlU IU III III III IU

Ark....,.~ I"~tion• •• •• •• "." ............r-_fJ·• ••. ~.,..,...

• •• •. ~~~~~~~~ ..••• - .• dlIiII JW9~

If you don 'I see the seal - it's 1Iot all Arkansas Bar Association eLf Program. As a vo[wuary association, we depend ml you, our members, to suppon oureLf programs. Your financial support benefits every Arkansas Bar Association member with enhanced membership bellefits lind discolllus as \Veil as rilehighesl qllality eLf programs ill the slale.

December 4, 1998EsTATE PLANNING

TBA6 hrs. CLE

January 15-16, 1999MID-YEAR MEETING

Peabody Hotel, Memphis9 hrs. CLE

February 5, 19995TH DISTRICT TRIAL PRACTICE

£1 Dorado, Arkansas

6 hrs. CLE

December 10-11,1998

FEDERAL TAX

I STITUTE

(CPA SOCIETY)

DoubleTree Hotel,Little Rock

December 4, 1998LEGISLATIVE

ADVOCACY

TBA

6 hrs. CLE

November 19-21, 1998BRIDGING THE GAP

UALR School of Law, Little Rock15 hrs. CLE

ovember 19, 1998CNA Loss r;:::::=====:::;lCONTROL

Hilton, Fayetteville3 Hrs. CLE

(including 2 hrs.ethics)

ARKANSAS TRIAL PRACfICE

I STITUTE

Date & Location-TBA6 Hrs. CLE

September 18, 1998FEDERAL

PRACTICE Glour! ~«oTb.

INSTITUTE:

A DAY WITH

THE COURT

UALR School ofLaw, Little Rock

6 Hrs. CLE(including 1.0

hrs. ethics)

t I Tlr ArillSIl LIIITrr \'01. II Ne.l/Summrr 1915

C,,111·800 325 7000 tocllIoll toci.W

UPS and your Association now have an

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The success of your business depends on seizing the right opportunity at the

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crunch time, every time: Simply call to enroll in this new program, and you'll

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1'01. llilo. l/Sommer 1~9S The ,lrkalSal Lattjer 2i

1998-99PRESIDENTIAL FEATURE

If I z«Tr in high school and my uacb~r told m~

to wriu an asa) on Mr. Rob~rl M. uar/9 Jr.,I would entitle it "My thoughts on Bob." And

Ihm I would probably sit and star~ at a blnnk pag~.

For a long while. Buause what do yolt say about aman in his fifties who wears starched whitt shirtsand gray pants and thinks history is inumting? SoIhm I would probably writt something dup like,

Bob iJ lik< hiJ o/fic<. o.K.ftrgiv< m< ifl wax po<t­ic or ovado a metaphor. but Bob is like his offia.And it's II gnat offiu. The walls flrt' slott gray, tJufloors a polished hardwood, and then is off-whiuaou.m molding ali around. Vt'')' comervt1tive, veryclassy, vay dignified .. on the Imfnu. But thm youSlart pokingJour nose around and you think, Man!

Pictured at the righl are Bar Association PresidentRobert M. "Bob" Cearley with his daughters Ginger(left) and Erin (right).

ARTICLE BY

Sara Landis & Adrienne Brietzke

!, U, .IrtllllJ IJwlfr III. ~~ ),. ~ S'lltr IllS

This piaee is cooL There art funky silver stat­ues tucked into comers, very co/erftl art on thewails. magazine articks ofcases he is proud of.framed on the fualis and travel magazinesinterspersed with law joumals on the tables.So ytab... Bob is likt his Offict.

IfI had to 'pOIll out a qltick, on-tht-,urjirct,SIlmmary ofBob Iii ,ay "H,!ik" staftod. dri­ves a BMW, has no pets because hes not homeenough to properly care for them. enjoys BarAssociation work and loves the law. ..

But, dig a lirsk alld b, nosy, andyolt thinkMan! This gllY is rtally cooL H,11 probablynever reveal it to you himself because, believemt, }" tin",,'t likt talking about },imulj but

1S ne MkuSIJ Ll~yer 1',1. II Ii. l/Su••er 119!

Arizona. He has bun rafting through Arizonafor nint days wlltre you bathe in the frigidwnUrs oftlu river and cook 011 the short. Andapparmt/y at an AnnuaL Muting ofthe TrialLAwyers in Eureka Springs. pmefiud a ''mid­dle-aged v(nio" of slam-dnncing, " according/0 David H. \f/il/inms, and nearly brokeDavid, bmw bont (tht ,amt night David did"the Monkey Danet" in the window).

He has two dnugluUJ of whom he is ~ry

proud. When IJt talks about them, his ryes get

bright and crinkks fonn around tilt cornnJ ofthem becau.se his smik buom~ so big, quickand easy. Erin, 26, has a Masurr Degru inMarketing and she works for a mortgage bro­ktmgt finn in Atlnma, Gtorgia. Gingtr, 24,graduaud fom tilt University of Colorado,Bouuur with a dwu in economics and nowworks for tilt \Vhiu House MillenniumProjul. He tries /0 gtl /ognhtr with his girls

as ofim as possjbl~. This yMr tluy are going toCanada tog~tl)(r to do SOl1U biking and hikingandgenaal "looking around" Both girls gr~wup I)(rt in Arkansas, Bob himstlf moved herent I}lt ag' of12from Ttxas. BOlh ofBob, par­ents live in ArkamllS too. His fatl)(r, RobertM. Cearley, Sr. who was in ProductionManagement for a corrugated box company.mird 15 yw', ago and bt and hi, wift Joymoved to Hot Springs where they built It houseon th, Inkt.

Bob apprtciaus art. His house is a contem­porary style with the most inttrestingfront doorI have ever sun. When you stt it, you wonekrwhy the Home & Garden channel hasn'tapproached him to do a fiatu"". "TOnight'sfiaN/re... Cool Front Doors in America. .. it is aheavy wooden revolving door that the archiuct

i who built tht holtSt ftTTtttd from tht Pulnski1County Courthouse during a past renovation.JAt one time the part of the Courthouse that-! faces the Arkansas Bar Cenur used to "'be at13 !Last double. maybe even trip!L "volving doors.

he is a very in/erYsting and extTnTUiy colorftl At some point they put in what they'vegot th~person. now." The architect got the doors and some

He enjoys travel. He does some ronning, light fixtures. It's inspiring. I am now on mybut biking is his particular /eve. A friend. own quest to have such a great conversationMike Mitchell. got him interested in biking pi~u. He even has a couple ofpieces ofart ateight yeaTS ago. Now he takes several biking his house by the same woman who designed thetrips a year in Colorado whert you bike ail day Vietnam WOmen's Mnnorialtbrougb tht moumains during th, tiny and H, is quick to Inugh and has a V"j plnyfUlthen stop at a really great place to spend the spirit. Surprisingly enough, he even inquired asevening enjoying good food and wine. In to when South Park. a controversial cartoonSeptember ofevery year, for the last six or seven airing on Comedy Central, comes on at nightyears. a group that hIlS tumed out to be pri- so he can check it out.marily Inwytr!, goes ',om,whm" to bih They So thmyOIt go. My Tholtghrs On Bob' Ht,

hav, bun 10 Utah, Bryct Cauyoll in Las jqgas jusl...w,II... cool.and this September they'll be going to Sedona, .:. .:. .:.

1'01. llll'O. liSulmer 1995 ne IrkuSl! La"ler ~9

wirh a BB gun rhar rhe children playingthought to be empey. The accident renderedthe boy a quadriplegic. The gun, seeminglyempty after being shaken and "dry fired"even multiple rimes, can suddenly shakeloose a BB lodged in the rough interior andshom a BB with enough force to piercehuman tissue and bone. A tandem caseCearley rook on involved an 11 year-old boyin Michigan who suffered severe brain dam­age after being similarly shot in the headwith a BB from another Daisy BB gun.Borh cases eventually settled, one for $5million and the other for an undisclosedamount and caught the attemion of theABC Network, which ajred a segment aboutthe cases on their "20/20" newsmagazineshow, featuring an interview with Cearley.

Bob with his Office Administrator, Kathy Wooley.

The Lawyer, I rhoughr ir would be easy to

write something about a hen friend," relatesMike. "I first started writing down adjec­tives such as perfectionist, honest, private,

but it sounded so hokey... .! just don'c knowwhat to say..... [without betraying confi­dences or getting too personal.]

Judge David Bogard wrires: "RobenLouis Stevenson once said "...3 friend is agift you give yourself." My gifr to myself isBob Cearley. ...what impresses me mostabout Bob is his steadiness. He has the abil­icy to focus and maintain a calmness in theface of calamiry. ...1 COLInt myself fortunateto have him as a friend."

The side of Bob Cearley with whom we'reall familiar is the quitely imaginative lawyerwho went up against the state's "CreationScience Law.» That law required theBiblical account of creation be taught inArkansas public schools on an equal fooringwith the theory of evolution.

The court held that "creation science"met none of the tests of science. And thenthere were the Daisy BB gun cases thatgained Cearley national attention. He suedthe Daisy Manufacturing Company ofRogers, Arkansas on behalf of a 10 year oldboy who was accidentally shot in the heart

The Cearley family pursues their passion forbiking near Inn at the Mill in Johnson, Arkansas.

ests are both broad and eclectic, but whosestyle is easy and exudes calm. Cearley isincredibly easy to talk to, and in conversingwith him, you sense a depth of knowledgeand a thirst for learning. He shows a quietpassion when he talks about the law and hislove for his chosen profession.

Born in Galesberg, Illinois, Cearleymoved with his family to Arkansas at the ageof twelve, when his father, who worked forthe Champion Container Corporation,transferred here. He earned his J.D. fromthe University of Arkansas School of Law atFayetteville in 1969 and began his legalcareer with a firm in Little Rock. He thenserved briefly as a deputy prosecutor inPulaski County, after which Cearley joinedwith schoolmate Dent Gitchell in openingtheir own law firm. "We were twO young,idealistic, somewhat naive buddies from lawschool," recalls (now) Professor DentGitchelL "It was juSt Bob and me and a sec­retary, taking on the cause of just about anyclient who wandered into our office....shar­ing our hopes and dreams, splitting every feewe earned down the middle. When one ofus went hungry, both of us went hungry."

The firm grew to include other oldschoolmares Mike Mirchell and (now) JudgeDavid Bogard. "I thought ir would be easyto write something about Bob Cearley for

----------

~at you first notice when you

step off the elevator into BobCearley's offices is that you're

immediatley pUt at ease. You realize that theoffice is, in many ways, a projection of Bobhimself, an impeccable dresser whose imer-

Left: Bob with David H. Williams al theiroffices.

don't have dinnertogether at least everyother week, if not week­ly. Judge Reasoner saidthat. ore of the reasonshe so enjoys these din­ners is that he loves tohear what Cearley has tosay about different legalpoints and the debatethar sometimes ensueswhen they may notagree on a particularpoint. He describesCearley as "...aRenaissance man. Hehas a wide range ofinterests and can talkabout them knowl­edgably. Of course,Bob's on my recusaJ list,so I've never seen him incourt as a lawyer but inconversations with him,I can teU he's very versa­tile about some cases,

and innovative in his theories of recoveryand establishing evidence."

Another close friend, Bob Trammell, cap­tures the "quintissential Cearley," - the totalprofessional, the consummate gentlemanand the man who doesn't just go throughlife, but devours it in large chunks. "Bob isincredibly stimulating in so many of the dif­ferenr points of the practice of law. HeaJways has something inreresting to shareand does it with such charm and frolic. He'severything that's good about the practice oflaw and he's concerned about it's future."·:·

Below Left: Judge Robert F. Fussell ofFayetleville, Bob, Beverty Witlenberg, andJudge Richard S. Arnold at his retirementreception.

dedication not only as Chair of theAssociation Membership Committeethat year, but as Chair of the AnnualMeeting Committee. Cearley has beenvolunteering his time and serving oncommittees since he first joined theAssociation in 1969, including Chairof the Young Lawyers Section, Chair of

the Family Law Section, co-edicor of theAssociation's Domestic Relations Handbook(l996 Ed.) and membership on numerouscommittees. He's also served as Chair ofthe Executive Council and is a current andtenured member of the House of Delegates.

Cearley's passion for the law, his dedica­tion, ingenuity, honestyand integrity haveearned him a universaJrespect among his col­leagues and all whoknow him. JudgeStephen Reasoner,Chief of [he EasrernDistrict Coun ofArkansas is an old law­school mare and friendof Cearley's. He [a1kedabout the close friend­ship [hey've sharedthrough the years, com­mentlllg that it's rare[ha[ he and Cearley

The respect and admiration of Cearley'scolleagues throughout Arkansas was demon~strated when he was named "1997Outstanding Trial La\"'Yer of the Year" bythe Arkansas TriaJ Lawyers Associarion, anaward of which he's particularly proud. Inwriting about his friend and office parmer,David H. Williams said, "Anyone whoknows Bob respects and appreciates hisintelligence, his thoroughness and his drivefor perfection....Bob is willing to put it allon [he line and roll [he big dice. Fear of fail­ure is no obstacle. ... Bob's tenacity anddetermination to "hang in there" resulted insuccess... " in the Daisy BB gun case. "As aresult of his work in exposing this dangerousproduct, Bob succeeded in providing a mea~

sure of financiaJ support for the childreninjured by it. JUSt as importantly, he suc~

ceeded in lifting rhe burden of guil[ fromrhe hearts and minds of [hose young boyswho thought they were responsible for a dis­abling injury." Cearley was aJso honored in1997 wi[h a Golden Gavel award from [heArkansas Bar Association for his work and

10 The lrkaum LIII!er 1"01. nSo.l/Summer 1998

•••••••••••••••••••••••• One third of the membership of the•• Arkansas Bar Association will receive a

: • • • • • • • • • • • • • • this fall. It will askquestions about technology, memberbenefits, etc. Your cooperation in com­pleting the Survey is crucial to yourAssociation knowing the opinions andneeds of members. (Members receivingthe survey will be randomly selected.)

Barbarians at the Gate:Image, Ethics and TheUnauthorized Practice

of Lawby Brad Hendricks

The currem controversy surroundingthe unauthorized practice of law inArkansas creates a unique opportu­

nity for anorneys in this state co unify andimprove our public image. Though weworry incess31ldy over our plummetingpublic image. we are our own worst enemyon that subject because we greatly con­tribute to the very public perceptions whichwe decry. Some plaimiffs' 3CtOrneys arequick to cast defense anorneys as sinistershysters whose sole purpose is to avoid therruch. Conversely, some defense attorneyscaSt plaintiffs' attorneys as greedy hustlerswho will do or say anything to make a buck.Corporate and tax anorneys are sometimesreferred CO as leaches on society. takingmuch and contributing lircle. These areremarks often heard from anorneys abomother anorneys. The public needs linle helpin drawing thcse conclusions about us, as wecreate thcse images for ourselves when wedescribe one another with such derogacorylanguage. We don't talk anymore about howa courageous sole-practitioner risked bank­ruptcy CO cause a dangerous product mar­keted to children to be removed from theshelves. We don't talk about how a deter­mined defense anorney marshaled the forcesof a large firm to save a person from finan­

cial ruin who has been falsely accused ofnegligence. We don't talk about the benefitto society when corporate and tax arcorneysskillfully negotiate the maze of issues, tOOcomplex for most of us to understand, sothat a new museum. library or arena is trans­formed from the drawing board to reality.We don't talk about these things because wehave become myopic in our individuaJ per­spectives. We want the negative image of

attorneys to have been caused by someoneelse. We seek easy scapegoats. We are far

11 ne ,Irklllil LIW!er f,tll 1"I/S.ller illS

wo quick co cast one anomer as some typeofculprit. In order to effectively combat theunauthorized practice of law. it is imperativethat we rid ourselves of these faIse and pettynotions and unite as a profession. By recog­niz.ing that we must stand wgether to pro­tect the public and ourselves from the unau­thorized practice of law. we have the oppor­tunity to have an impact on the image ofanomeys, while reining in a serious andgrowing threat w the public and our profes­Sion.

MoS[ attorneys understandably do notwish to soil their hands by grappling withthe tawdry details of unlicensed individualssoliciting personal injury cases. In JohnGrisham's Th~ Rainmak~r, such activi[)' wasenough to drive the bright, young protago­nist from the practice of law. Investigatingand dealing with this issue is unpleasant,time-consuming and expensive. A3 attor­neys, we are often unaware of these activi­ties until one of our clients or family isapproached in person or by telephone by anon-lawyer seeking legal business. Defenseand corporate attorneys oftentimes don'rthink or don't know that these activitiesaffect them. It is tOO easy to scoff at mematter as if it is somehow beneath us, or isthe problem of someone else. Nothingcould be further from the truth. If you arean anorney, it is your problem.

The most salient point, frequentlymissed by attorneys, is mat every unautho­rized practitioner of law taints the legal pro­fession directly. The public perceives theseunlicensed individuals as lawyers, or as hav­ing some role in the legal profession. Evenin those cases where a vicrim knows that theperpetrator is nat an attorney. the legal pro­fession still gets the blame. The perpetratoris perceived, at the very least, as being a

fringe member of the legal profession.Consequemly, we get the worst of bothworlds. The unlicensed person is responsi­ble for causing a bad experience for the vic­tim. and all attorneys are blamed for themishandling of the matter.

Concern over the unauthorized practiceoflaw has reached new levels now that unli­censed individuaJs are making inroads intovirtually every segment of our profession.Accouming firms are buying law firms andengaging in the practice of law. There arestrong arguments that collection agencieshave long been practicing law without alicense. I Non-lawyers with a toll free num­ber offer estate planning as if one need onlypaint by numbers in order to properly pro­[ect and distribute one's assets after death.Living trusts are sold by unlicensed individ­

uals with no thought given to the anguishsuffered by a family when they learn that iris unenforceable and useless. on-lawyersoffer to do divorce work. Defense attorneysseldom litigate without imerference from anadjuster. lnsurance companies reportedlyare now so bold as to issue written rules todefense firms governing wh..ich functionswithin me firms must be performed by para­legals instead of attorneys. This placesdefense firms in an untenable ethical dilem­ma as they attempt to exercise their inde­pendent professional judgment and exacer­bates the potential conflict between repre­senting the insurer and the insured in thesame action. Ethics opinions from aroundthe country reveal mat there are intrusionsinto every area of practice. The harm to thepublic and to our profession is substantial.However, instead of aggressively attackingthe problem, we wring our hands over beingperceived as protecting our own and do lit­tle or nothing. We. have an obligation (0

COllrl-Appoillled • Reglliar Caliri Appearallces

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

The salient point most often missed by attorneys is that every

unauthorized practitioner of law taints the legal profession directly.

The public perceives these unlicensed individuals as lawyers,

or as having some role in the legal profession.

Continued on Page 34

11510 Fairview Road, Suite 100Little Rock, AR 72212-2445

Phone: (501) 221-9900Fax: (501) 221-9292

email: schwartz@busvalu.com

Evidence is nor preserved. Witnesses are norinterviewed. First part)' coverage is notproperly utilized so that the victim is pro­tecred from bill collecwrs. Letters of pro­tection are unavailable to the non-lawyer.Broad insurance company authorizations forthe release of medical records get signedwhich permit adjusters to converse with avicrim's doctor without an anomey present.Insurance companies are allowed ro gathermedical records which have no bearingwhatsoever on the case, but which can beused to embarrass or inrimidate the victim.Non-lawyers know nothing about venuechoices, or why they can be important.Complex cases are not properly funded anddeveloped [Q ensure a proper recovery.Overcharging by medicaJ providers is lefrunchallenged. To the contrary, it is encour­aged by individuals engaging in the unau­thorized practice oflaw. Since the unautho-

riz.ed practitioner is nor governed by rules ofethics, he may encourage the victim to bedishonest with rhe insurance adjuster. Somemay even go so far as to manufacture wit­nesses, if the porenrial reward seems to our­weigh rhe risk of gerring arrested for insur­ance fraud. There are as many risks of harmas there are issues and tasks in a personalinjury case and the viccims who are harmedare left without even recourse ro a legal mal­practice carrier.

Richard l. Schwartz

Certified Public AccountantCertified Business AppraiserCertified Fraud Examiner

ey appe3.rs ro have lapsed jusr prior to theaccident, the non-lawyer usually does norknow that the coverage may have scill beenin force. Under such circumstances, the vic­tim may be incorrectly advised that there isno coverage, so there is no source of recov·ery. A non-lawyer often does nor under­stand the importance of protecting subroga­tion interests of automobile insurance carri­ers or workers' compensarion carriers.When the victim gets sued by the workers'compensation carrier after he or she hasspent the funds recovered from the rhirdparey it is the legal profession that he willblame for his troubles. A non-lawyer isuninformed regarding the legal significanceof medicaid liens and ERISA plans. Anunlicensed person cannot protect a victimfrom improper, irrelevant or leading ques­tions during a taped ilHerview by theadjuster, and does nor know how ro ensure

the recording is inadmissable if the m3nerproceeds to rrial. The non-lawyer isunaware of developing case law which maydirectly affect the victim he represents.

The non-lawyer has no ethical obligationwhatsoever with respect ro the victim. Hehas no reason to be concerned about thelong-term consequences of his actions orinactions with respect to whatever compen­sation might be obtained for the victim.Since trial muSt always be avoided, cases aresertled for far less than their objective value.

protect ourselves and to protect the publicfrom these intrusions. The fact that thesewrongs are being commined within andaround our profession imensifies our needto work together to eliminate the unautho­rized practice of law wherever we find it.

In the area of tort law, we have beencompiling information concerning who isengaging in the unauthorized practice of lawand how they are doing 50. Individuals ofvarious employment backgrounds, certainindependem paralegaJ services, and a varietyof common street hustlers who seek to prof­it from tort cases by performing functionsreserved by law for licensed attorneys arebeing idemified. Some medical providersare also allegedly parr of rhis problem,although this has yet to be proven.

The typicaJ scenario involves unlicensedindividuals accessing public records or mon­itoring police scanners for information con­cerning victims of tOrtious conduct. Theunlicensed person or group then engages indirect, in-person or telephone solicitation.Attorneys have long been prohibited fromengaging in such solicitation techniques, asit is believed that direct solicitation of thisnature constitutes overreaching. Currentlyit is common for new personal injury diemsro complain about individuals appearing attheir home or hospital room, or callingthem on the telephone. This conduct con­tributes significantly ro the negative imageof attorneys and we absolutely must put aStOP ro It.

Unfortunately, the unlicensed personwho engages in direct soliciration sometimesdoes so on behalf of an unscrupulous attor­ney. We need to identify each attorney whois a part of this problem and ensure that theyare appropriarely disciplined. Some unli­censed persons hold rhemselves our to thepublic as being brokers for atrorneys, oroffering a service of finding the righrattorney. This means simply rhar the dient r-----------------------------------...,will be referred to someone with whom [he Ace 0 U 11 tan t / Econ 0 m i cAn a Iy sis

broker has some form of prior arrangement. ,.-------...,

Some allegedly attempt to handle the case asif they are attorneys themselves. Those whohold rhemselves our as helping only ro findthe righr attorney will oftentimes issue self­serving statements that rhey do nor givelegal advice. Bur despite their disclaimers,under the ex.isting statures and under thecraditional concepts of rhe practice of law,they are giving legal advice.

The lisr of ways that a personal injurycase can be mishandled by a non-lawyer isexrensive. If the tortfeasor's insurance poli-

I"ol.ll XO.l/SUlllllllr 1m Tbl.lrkaosal LlII,tr II

Cominued from Page 33

The taerics being employed to practicetort law without a license vary. dependingon who is involved. One of the cactics usedby unlicensed persons who are not brokersfor attorneys is to tell victims that they don'tneed an anorney. Ami-lawyer rhetoric isused, as well as inflated promises of financialgain and Other exaggerations and misstate­ments. Nothing is out of bounds. Brokersfor attorneys will extoU the virtues of theattorneys involved, and speak ill of anyother attorney. Since there are no ethicalrules to govern them these people may sayanything which might help persuade thepOtential client to sign a contract, withoutregard to what is or is nOt the truth.

Attorneys who practice in collections,tax, domestic relations, probate and otherareas of practice where unlicensed individu­als are making inroads into our professionare all too familiar with the harm ro thepublic when non-lawyers practice in thoseareas. Presumably, the harms that can befallthe public and me profession are equallyextensive in those areas of practice as well.

TOXICOLOGIST/FORENSIC SCIENCE

ROBERT W. FLOURNOYPh.D., R.E.P., D.A.F.B.E.

• Diplomate, American Board of ForensicExaminers

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Aggressive enforcement of the prohibi­tion against in-person solicitation must beapplied on both sides of the Bar. The tacticsof plaintiffs' and defense counsel should bereviewed to ensure compliance with theModel Rules of Professional Conduct.Defense firms allegedly use direct, in-personand telephone solicitation to seek out insur­ance companies as the source of personalinjury business. One customary approachreportedly involves calling an insurance exec­utive known to be in need of legal services,and issuing a social invitation or arranging abusiness meeting. The attorney thenengages in direct solicitation of that business.

The only difference between this behav­ior and that of the plaintiffs' attOrneys whoapproach pOtential clients in person is that itsometimes takes place in a semi-social settingamong more affluem individuals. There isno legitimate ethical distinction. If we arecom mined to prohibiting in-person solicita­tion, we are obligated to enforce theprohibition in all instances. Selectiveenforcement of the prohibition against thistype of solicitation fails to accomplish thepurpose of the rule.

The abuses in the area of tort law are notlimited to tactics by people seeking to rep­resent potential litigants. One insurancecompany. claiming to be concerned for thewell-being of its potential adversaries. dra­matically overstepped rhe boundaries. Thiscompany initiated a practice of sending let·ters and other documents to people injuredby policyholders which were designed ropersuade potential claimants that theyshould nor seek legal counsel. New York,West Virginia, and Connecticut have takendifferent actions against this practice, declar­ing it to be the unauthorized practice of law.Pennsylvania, Virginia. New Mexico,Illinois, Texas and New Jersey currently haveaction under consideration. West Virginiaended the practice by enjoining the compa­ny from sending these documents andPennsylvania has endorsed the positiontaken by West Virginia. A class action law­suit has been filed in Illinois alleging fraudand the unauthorized practice of law. Aconsumer fraud action is pending in ewMexico. ew Jersey is proceeding along thesame lines as West Virginia and inConnecticut. the legislature has passed anew law prohibiting any insurer from advis­ing a potential claimant, either orally or inwriting. that they do not need an attorney.The penalties include fines and forfeiture ofinsurance licenses.2 Surely if a major insur-

ance company can be held accountable forthe unauthorized practice of law in so manydifferent jurisdictions, we can put a StOp to

the activities of a group of individuals inArkansas who are going well beyond any­thing this insurance company tried to do.

The larger, more disturbing issue withrespect to insurance companies is the extentto which they seek to control and manipu­late the legal profession. just as they havesucceeded in doing in the medical profes­sion. There we have seen comrol seized overdecision-making. wherein the judgement ofbean counters has been substituted for {heprofessional. medical judgement of treatingphysicians. Having been successful in trans­forming tort reform (an oxymoron alsoknown as tOrt deform) into a commonpolitical phrase. insurance companies nowseek to practice law on both sides of the Bar.Having witnessed the once-unimaginableconstraints that are now exercised over med­ical professionals and the subsequently neg­ative impact on their patients. we wiU haveno one to blame but ourselves if we do notcome together as a profession and confrontthe fact that the same sights which wereeffectively trained on the medical professionare now trained on us as law practitioners.

The unauthorized practice of law haslong been prohibited.3 bur there was a lackof clarity in terms of specifically what doesand does not constitute the practice of law.Acr 1301 of 1997, now codified as A.CA.§16-22-501, defines me unauthorized prac­tice of law in personal injury cases and setSpenalries for such conduct.' Drafted by IheArkansas Trial Lawyers Association'sLegislation Committee and closely moni­tored by the Tort Law Committee of theArkansas Bar Association, the statute classi­fies a first offense as a Class A misdemeanorand a second offense as a Class D felony. Ifa non-lawyer contracts a personal injury casewith intent to obtain a direct economic ben­efit, the statute has been violated. Legaladvice and direct solicitation. in person orby telephone, are prohibited under thestatute if there is intent to obtain a directeconomic benefit.5

While protection of me public is our pri­mary concern. we are also obligated to pro·tect ourselves and our colleagues from intru­sions in the legal profession and our legalbusinesses. Again. we can be our own worStenemy on this subject when we are embar­rassed to admit that our businesses and theincome they generate is important to us,along with the myriad of other issues engen-

dered by the unauthori7...ed practice of law.We are hampered in our efforts to protect

ourselves when we succumb to antiquatedperspectives on the practice oflaw which areno longer applicable in the modern age.The idea that there is some conAict betweenthe profession of law and the business of lawis outdated and incorrect. Denying theimportance of the business oflaw along withthe profession of law is tantamount to bury­ing our collective heads in the sand. Tryrelling your associates or staff members thatsalaries and benefirs are not important. Trytelling the government thar regulation ofbusiness should not apply to us. The fact is,we are engaged in business and there is noreason to be apologetic.

The notion thar there is some inherentethical conAict between law as a businessand law as a profession is simply nor true.That perspective is a holdover from the J8thcentury English legal syscem where barristerswere trained at the Inns of Court and hadlittle financial need to work. They wereoften rimes disdainful of approaching law asa source of income, and remnants of thatphilosophical ourlook are srill wirh us. Burtoday our society is vastly different, as is theprofession of law. We are nOt among theprivileged aristocracy. We need heaIrhinsurance like everyone else. We want tosend our children to good schools. We wantour families to grow and we want life insur­ance to protect them when we are gone. Wewant to be able ro retire without burdeningour children. We accomplish rhese things byengaging in both the business and the pro­fession of law.

\Xle hear much abom rhere being roomany arrorneys. This popular idea ignores

the fact that the dury falls upon us to resolvevirtually every dispute in our society, fromthe smallest matter solved by a quick letteror short meeting. to matters of life anddeath. Withom attorneys. the parameters ofour civilized society would disinregrare. Ir isessemial that we maimain our voice in thehalls of Congress so that our judicial institu­tions and access to them are protected forour clients and for our profession. This canonly be accomplished by ensuring the con­tinued vibrance of our legal businesses byreigning in the proliferation of the unautho­rized pracdce of law.

As practicing arrorneys. if we are obser­vant of the Model Rules of ProfessionalConduCl. as we muSt be. there can be noconAict between the business of law and theprofession of law. They are one and thesame. If. as a practitioner, one has morelegal business than can be handJed compe­tently. there are only n....o choices: expandthe business or reduce the case load. Doingso keeps us within the ethical boundarieswhich govern us. In the legal profession, weare confronted each day with thorny newproblems. As we address each new issue, rherules of ethics prevent us from placing theinterests of our business ahead of the imer­estS of our clients. The great beauty of ourprofession is that in placing our diems'interests and our ethical obligations ahead ofall other considerations, the end result is thecontinued growth and success of our busi­nesses. When a c1iem seeks to have us do orsay something which is not within the con­srraints of rhe ethical rules. we have co drawthe line. Jusr as plaimifTs' attorneys mustrefuse a c1iem who wishes to make falseclaims. defense attorneys must refuse to bow

co the demands of insurance companies whoinsist on compromising the attorney's inde­pendent professional judgmem. Any poren­tial conAict between our business and ourprofession is easily resolved through com­mitmem to the rules which govern us.

Maintaining our clients' and our ownlegislative voice is extremely important if weare to survive the anti-lawyer sentimentwhich pervades the current social climate.To voluntarily relinquish any aspect of ourprofession to those who are unauthorizedlaw pracritioners is the height of timidityand foolishness. We cannor allow erosion ofour profession. It is ohen said that busi­nesses which are not busy growing are busydying and thus. the legal profession findsitself at a crossroads. Do we want atrorneysto be able ro work in the legal profession orro be forced from i(~ Do we want jobs forparalegals and other support staff'? We aregoing to have to act rogether when we seeintrusions inco our profession by those whowould harm our diems and our businessesby performing legal functions that only alicensed attorney should perform.

In a world where too many people wantsomething for nmhing it should surprise noone that the practice of law would be encic­ing to someone who wants the benefitswithout paying rhe dues and completing thelengthy training. If we believe that the prac­tice of law is a worthy endeavor whichshould only be practiced by those who areproperly licensed, we must all be part of thecontinuing struggle co eliminate these dan­gerous and destructive imrusions inco ourprofession.

The problem of the unauthorized prac­

Cominued on Page 37

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Registered Professional Engineer in 3 Sl.ales.9 years of experience as President of large distributor specializing in alltypes of safery equipment, major emphasis on metal forming and stamping.II years of e.xperience as President of company involved in repair and rewinding of electricmOlOrs and manufacmre, sales, installation and servicing of electrical conlJ"ol p:l1tels for industry.14 rears of e.xperience with General Electric Co. in engineeringand industrial sales.

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rice aflaw can be solved by anaclung on sev­eral fronts:

1. we should begin by moving away fromexpressions of cynicism and sarcasm rowardour fellow members of the Bar, in favor ofmurual respect, unicy and cooperation;2. we need to gather credible evidence ofvio­

lations of the law and present ir ro our localprosecutors;3. we need to properly fund the SupremeCourt Committee on the UnauthorizedPractice of Law and actively pursue com­

plaints against those who we believe haveviolated the rules;4. we can develop recommended guidelinesfor the disciplining of attorneys;5. we can utilize the resources of our stateand local bar associations to fully investigateand expose inappropriate practices in theareas of in-person solicitation and the unau­thorized practice of law;6, we need to seek cooperation not onlyfrom attorneys on both sides of the Bar, butalso from the insurance industry, whichmust cease efforrs to exercise control over thelegal profession. The problem of unlicensedindividuals negotiating claims on behalf ofinjured victims will end if insurance compa­nies refuse to negotiate with non-lawyers. (Ithas been suggested that doing so constitutesaiding and abetting the commission of acrime as set forrh in §16-22-501.) Some of

the more reputable insurance companieshave already begun to refuse to talk withnon-lawyer representatives.7. And finally, it has been suggested rhat (he

Arkansas Insurance Commission promulgateand enforce a regulation mandating that tOrrclaims be negotiated only with the claimant,

a c1aimanr's family member, or an attorney.If we follow through with these suggestions,we will substantially resolve the problem of

the unauthorized practice of law as it relatesto tOrr law. The simarion demands a con­centrated effort by every attOrney to eradi­cate the inappropriate activities of non­lawyers in all areas of law. By comingtOgether and fighting for and with oneanother as colleagues, we can drive a stakethtough rhe hearr of this problem.·:·

EndNotes:

I. Maggio, Michael A. and Maggio, Stephen J.,CriminaJ and Civil Liability Under Recem

AmendmentS lO the Fair Debt Collections

Practices Act, The Arkansas Code and

R.LC.O., THE ARKA SAS HEALTH­

CARE FI ANClAL MANAGEMENT

ASSOCIATION, August 14, 1997.2. Wend. Annette, More States Act Against

AJlstate, ATLA Advocate, Vol. 24, No.3, 1-2

(April, 1998).

3. SeeA.C.A. §16-22-208.4. See A.C.A. § 16-22-50 1. Prohibited Activities.

(a) A person commirs an offense if, with

intent ro obrain a direct economic benefit for

himself or herself, the person:

(I) Comracrs with any person to represent

that person with regard to personaJ causes

of action for property damages or personal

injury;

(2) Advises any person as to the person's

rights and the advisability of making

claims for personaJ injuries or properry

damages;

(3) Advises any person as to whether or nor

to accept an offered sum of money in set­

tlement of daims for personaJ injuries or

properry damages;

(4) Enters into any contract wirh another

person to represent thar p~rso'n in person;1

.injury or properry damage matters on a

contingent fee basis with an attempred

assignment of a portion of the person's

cause of acrion;

(5) Emers imo any contract, except a con­

traer of insurance, with a third person

which purportS to grant rhe exclusive right

to select and retain legal counsel ro repre­

sem the individual in any legal proceeding;

or

(6) Contacts any person by telephone or

in person for the purpose ofsoliciting busi­

ness which is legal in narure, as set forth

above.

(b) This secrion does nor apply to a person

currently licensed to practice law in rhis srare,

another srare, or a foreign country and in

good standing with the Srare Bar of Arkansas

and the state bar or licensing authority of any

and aJl other stares and foreign countries

where licensed.

(c) Excepr as provided by subsection (d) of

this section, an offense under subsection (a) of

this secrion is a Class A misdemeanor.

(d) An offense under subsection (a) of this

section is a Class D felony if ir is shown on the

rrial of the offense that the defendant has pre­

viously been convicred under subsection (a) of

this section.

(e) This section shall nor apply to a person

who is licensed as an adjuster or employed as

an adjuster by an insurer as authorized by

§23-64- I0 I.

5. Id. at §16-22-50J.

Brad Hmdricks is th~ OWll~r of Th~ Law OJfic~ ofBrad Hnuin"cks, which fotusa primarily 011 plainnfFP"JOnal injury cam. His trial work is in th~ arra ofobstmlC malpmetic~ wlm-r h~ has obtain~d nummJUsmulti-million dollnr vmiim muismkmmrs.

RICHARD H. MAYS, Esquireftrmrrly

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andftrmrrlyDepartment Attorney Arkansas Department of Pollution Control & Ecology

andftrmerly member ofThe Environmental Practice Group ofthe law firm ofVenable, Baetjer, Howard & Civiletti, LLp, Washington, D.C.,

announces tilt opening ofhis law office.

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lOllllg Lilli ~ I'I'S SI'l't iOIl U"pOl't

Comments on Recently Undertaken YLS Projectsby Gwendolyn Hodge, Chair, Young Lawyers Seclion

The Arkansas Freedom of Information Act

Third Edition

Professor John Watkins

A new and updated edition of this important book, published June 1, 1998.More than 470 pages of essential information on access to records, openmeetings, enforcement issues, and use of the FOIA as a discovery device. Anessential reference for attorneys and public officials, PRICE: $24,00 + $3.00shipping/handling, Orders may be faxed to M & M Press at (501) 582-4265or mail to M & M Press, P.O. Box 338, Fayetteville, AR 72702. If you wishto use VISA or Mastercard, mail or FAX credit card information,

As the incoming chair of rhe YoungLawyers Section of rhe Arkansas BarAssociation, I am looking forward ro thisBar year with great exciremcm and anticipa­[1011. In looking back at rhe accomplish­

ments of past Chairs of this Section, I havelarge shoes to fill. I accept this challenge.However, in doing so, I ask for your help.

As I know rhe past Chairs would say. it can­not be done alone! I encourage and wouldhope that each of yOli gets involved in theYoung L1wyers Section and Arkansas BarAssociation activities.

During the next year, it is my goal ro

encourage and fostcr greater participation in

the Young Lawyers Section. You will notethat I did llor say "membership," for each

Arkansas Bar Association member who haspracticed law for five years or less or who is35 years of age or less, whichever comes last,is auromatically a member of the YoungLawyers Section. There are no section duesro pay.

Projects of the Young Lawyers Sectioninclude the following:

I. Bridging the Gap Seminar. TheBridging the Gap Seminar is a nuts andbolts approach [Q the practice of law. Thisseminar teaches you what yOll probably djdnot learn in law school and will need toknow [Q practice law. It also serves as arefresher for seasoned lawyers.

2. Law \Veek Essay Comest. In con-junction with Law \Veek, the Arkansas Legal

Secretaries Association and the YoungLawyers Section sponsor an essay contest for7th graders across the state. Each year thetopic relates to the judicial system.

3. Disaster Relief. The YoungLawyers Section has developed a DisasterRelief plan through which lawyers providepro bono legal assistance to disaster victims.

Last year, Chair SCOtt Morgan expressedan interest in developing a HospiceProgram. The Hospice program would pro­vide basic legal services to the terminally ill.SCott and Jonann Roosevelt have beenworking throughout the year on this projectand I look forward to our continuing workon this project.

This year, the Young Lawyers Section will

form a Speakers Bureau [Q address the pro­posed Constitutional Amendment onretired judges being used as special judges.Particip~tnts in the Bureau will speak at civicorganizations and other organizations edu­cating the public abom the proposedamendment that will be on the Novemberbailor.

Volunteers are needed for the SpeakersBureau and all other projects. I encourageyou and ask you to volunteer. How do youvolunteer? It is as easy as contacting yourdistrict representative, the Arkansas BarAssociation, or me. And, if you have ideas,comments, or suggestions, I encourage youto do the same.

Bar panicipation is a great way to become

reacquainted with classmates who are nearand far, to make new acquaintances, as wellas a way to serve both the profession and thecommunity.

Again, I encourage and ask you to join mein making this a successful Bar year.•:.

Law Office TechnologyCominued from Page 9

you). There are new document assemblyfields that list the lawyers associated witheach file, contaCt, event or time entry.

Finding someone on your comact list iseasy. Each column on your contact list(name, company, phone, etc.) has a headerbutton that makes it easy to sort the listedCOntaCts. To help prevent the creation ofduplicate contacts, Amicus Team now has apreference to prompt for a Team contactssearch whenever yOli add new contacts.Statistics are carried forward from one yearto the next and the statistics setup interfacelets you specify how much rime you haveaccumulated from the start of the fiscal yearup to the time you started using AmicusAnorney. The software also has an electron­ic 'stickies notc' feature to send messagesbetween attorneys and paralegals if youroffice is networked.

PcLaw "links" with Amicus so that aU ofyour time automatically translares imo abilling to your diems if you prefer. It alsowrites checks, and again this "one-write"

system automatically plugs in the numbersin the right places for proper accounting ofyour expenses and truSt monies held.

My biggest frustration with .111 of thesesoftware packages is the technical supportyou obtain. Because of their popularity, youcan depend on holding for any suppOrt atleast (en minutes. Since PcLaw and Amicushave only been around for jusr a few yearsand they conrinue to grow so fast, hopeful­ly my frustrations with the technical sup­pon represents only "growing pains."Obviously, they will also be replaced unlessthis is improved no maner how great theirsoftware for lawyers.•:.

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30. For e'Xample, in Title VII cases. e'Xpc:n fe:es an~

recoverable as cOSts. See 42 U.S.C.S. §2000e-5(k)(Cum. Supp. 1997). This is nor necessarily true inall ftt-shifting Sl"JrUles.

31. IWmOf u umm, 713 E2d 546 (10th ir. 1983).32. Entmainmfflt Conrrpn /fl, 1m". v. Mllri9~.Jri, 514

F. S,pp. 1378. 1382 (N.D. III. 1981).33. Cok« Williarm, 624 E Supp. 712. 720 (WD. Ark.

1985). ajf'd798 E2d 280 (8,h C;,. 1986).34. Et.'tltufJ. F",IIP, 94 ER-D. 311.313-14 (W.O. Ark.

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25. Id. quoting Co~lAnd If. Marshall, 641 F.2d 880,891 (1980) (en bane) (emphasis in original).

26. Grrrubli lRn u IAnin, 749 F.2d 945. 953 (1st Cir.1984).

27. Mrrro Data SYltrms, Inc. v. Durnngo SylUmJ, bu.,597 F. Supp. 244. 246 (D. Ariz. 1984).

28. For example, in Davis v. SEPTA, 735 F. Supp. 158(E.D. ~,. 1990) ajf'd924 F.2d 51 (3d Ci,. 1991).tht pbintiff sought approxim:uely S6OO.oo0 inw.m:llgd in an employment discrimination casc:.The jury awardc:d her 10,000 in damages and herattorney asked the coun for a ftt award ofSI18,5oo. The court said: "There is somerhingwrong with spc:nding $118.500 to receive:ll rccov·ery of 10,000. This amount simply is not re:150n·able in relation to the results obtained." 735 ESupp. at 161.

29. Wintl'T If. urro Gordo Co. ComlTl!lllion &I., 925

Continued From Page 222. HrnJky If. &Jrm1ltrl, 461 U.S. 424. 433 (1983).3. 1"-4. G""tblJ Dro, I'll'. If. urki". 749 F.2d 945. 950

(lSI Cir. 1984).5. TheM: twelve guidelines were first M:l fonh in

jolJ1lw" v. Grorgia Highwny ExpmJ, IIIC., 488 F.2d71 (Sth Cir. 1974). The Eighth Circuit aplUSlyadopted these- guidelines in Win Crnur,Nrbnukll, Inr. j.t Tho"" 645 F.2d 645 (8th Cir.1981).

6. Hrnsky« &Jrahart, 461 U.S. 424, 434 (1983).7. Id. at n. 9.8. P/"rosomphonr v. Alliw" &rd Group, I"c., 984 F.2d

4 (lSI Cir. 1993).9. MrDonald v. Armomrour. 860 F.2d 1456. 1459

(8rh Cir. 1988).10. At-'ll/on CinmuJ Corp. v. Thompson. 689 E2d 137.

140 (8th Cir. 1982).11. BI",m If. StntJiJn, 465 U.S. 895-96 n. 11 (1984).12. Itl al 897.13. Gilbmv. CilJofLmkRork, 867 F.2d 1063, 1066

(8th Cir. 1989) rm. dn/ird, 493 U.S. 812 (1989).14. HnuUy If. l:..Clurhart, 461 U.S. 424. 437 n. 12

(1983).15. It/. at 440 (concurring opinion).16. It/. at 441.17. H.j. Inc. If. FlJg1 Co'!'., 925 F.2d 257. 260 (8th Cir.

1991) quoting Hrmky. 461 U.S. al 437.18. hi.19. Nlluo",,1 Au;' ofConrnn«l Vnm:l'nJ /.!. S«mllry tlf

1Jif"mn. 675 E2d 1319. 1327 (D.C. C;,. 1982).20. Scc: r.g., G"ndrli Dm, htr., v. urltin. 749 F.2d

945.952 (lsI Cir. 1984); Ramos v. I..m"m, 713 F.2d546. 553 (10th Cir. 1983); and Nrw }'/:l,k StairAJS'" fOr &tartkd Childrnl, Inr. u. Carry. 711 F.2d1136. 1148 (2d Cir. 1983). Additionally, in one ofthe morr egregious cases of billing abuses, K«nl'T u.lRpnrrmmt ofArmy. 55 FEP Cas. 200 (M.D. Tenn.1991). the court disallowed all anorney's fees andimposed Rule' II sanctions on the anorney for hisbilling practicc:s.

21. 5« r.g., National Asin of Conurnrd Vnrmns u.&rrrtllry of Drftnu, 675 F.2d 1319, 1327 (D.C.Cir. 1982) (insufficient ro provide the disrrict courtwith ve:ry broad summaries of work done andhouTS logged thai do nOl offe:r any actual descrip­tion of th~ nature or purpose of the: activity);Paxron u Union Natl Bank, 806 F.2d 785 (8th Cir.1986) (allowing reduction of ftt award for allhouTS nOl propc=rly documented); and H.j. Inc. j.t

FIJt! 0>'1'.. 925 F.2d 257. 260 (8,h C;,. 1991)(billing records induded numerous time entriessuch as Alegal rese-arch" or "trial prrpar:nion- or"met w/cliem" that werc~ so vague that district COUrtcould not dC=lc=rmine with cerraimy whether theywert: rrlatro to Ihis litigation).

22. H.j.lnc. v. Flygt Corp., 925 F.2d 257, 261 (8th Cir.1991).

23. Some block billing c:a.se:s includ~ Drokr v. Pmin,593 F. Supp. 1176, 1178 (E.D. Pa. 1984) (COUrtheld that block billing made it impossible: to sepa­Tate: the propc=r claim from the: impropc=r and con·seque:nuy dc=cided that :1.Il unanalyz.ed allocation ofhouTS was not pc=rmissible in arriving at the lodesurand disallowro all block billro hours); Mmo DataSpumJ, Inc. v. Durango SJIwm, Inr.• 597 E Supp.244 (D. AriL 1984) (combined time for differentactivities does not give court any guichnu as tohow much time: was dn'oted to each activity): andSo," u G. 6- U. Inr.• 801 F. Supp. 1056 (S.D.N.Y.1992) (coun disallowed all block billed entriesbecause the commingling of activities within onelime c:mry impedes rhe coun's c:frOrt 10 ('V:dU31C: Ihereasonableness of any of the' listed activiriC'S).

24. H,,"I'1 v. Erkmw,.461 U.5. 424. 433-34 (983).

I'll. II II. llSllltr IllS nt .Irlillil Liw!Jr 11

Advisory Ethics Opinion Issued onOwnership of Land Title Company

Advisory Ethics Opinions may be issued tomembers of the Arkansas Bar Association incertain situations. Members interested insecuring such an opinion should contact DonHollingsworth, Arkansas Bar AssociationExecutive Director, for the requirements whichmust be met. There is a 550 administrativecharge for each opinion.

ADVISORY OPI 10 98-01Date: June 8, 1998Subject: Ownership of Land Title Company

FACTS: everal arrorneys in different firms

and one non-lawyer propose (Q set up andown a Title Insurance Plant, Escrow andClosing Company. Pursuant ro a wrirtenagreement, the owners will have an interestin the fixed assets and will be compens:uedbased on rhe business referred to the com­

pany. The proposed company will maintaina compmer base of properry records. com­pile tide his[Qries and provide loan closing

services. In addition, as an agem of anational title insurance company, the pro­

posed company will issue title insurancepolicies. The proposed company will norissue tirle opinions or ririe certificates (Q

lenders or other interesred parries. Theissues presented to this committee are:

I. \'(Ihether a lawyer in private practice mayown a land title research and escrow com­

pany;2. Whether lawyers in different firms may

jointly own such a company;

3. Whether the presence of a non-lawyer asa parr owner bars or restricts the partici­

pation of attorneys;4. What restrictions, if any, are placed on

the anorneys.

THE RULES: The applicable rules ate:Rule 1.7(b) of the Arkansas Rules ofProfessional Conduct:

"(b) A lawyer shall nOt represent a clientif the representation of that client may be

10 Thr \r~illil LiWW IQl.ll Sl.l/Su••rr 1991

materially limited by the lawyer's responsi­bilities to another c1iem or to a third person,or by the lawyer's own interests, unless:

(I) The lawyer reasonably believes therepresentation will not be adversely afftect­ed; and

(2) rhe client consents after consulta­tion. When representation of multipleclients in a single matter is undertaken, the

consultation shall include explanation of theimplications of the common representationand the advantages and risks involved."

Also relevant is Comment 6:"The lawyer's own interests should not

be permirred to have adverse effect on rep­resentation of a c1iem. For example, alawyer's need for income should nor lead the

lawyer to undertake matters that cannot behandJed competently and at a reasonablefee. See Rules 1.1 and 1.5. If the probity ofa lawyer's own conduct in a transaction is inserious question, it may be difficult or

impossible for the lawyer to give a diemdetached advice. A lawyer may not allowrelated business inrerests to affect represen~

tarion, for example, by referring clients to anenterprise in which the lawyer has an undis­closed interest."

Rule 1.8(a) governs business relationsbetween attorneys and c1iems:

"(a) A lawyer shall not enter into a busi­

ness transaction with a client or knowinglyacquire an ownership, possessory. securiry orother pecuniary interest adverse to a clientunless:

(I) rhe transaction and rerms on which

the lawyer acquires rhe inrerest are fairand reasonable [Q the diem and are fully

disclosed and transmitted in writing tothe client in a matter which can be rea­sonably understood by the client;(2) the client is given a reasonable oppor­

tuniry to seck the advice of independentcounsel in the transaction; and

(3) the client consems in writing there­to."

Comment I provides:"As a general principle, all transactions

between c1iem and lawyer should be fair andreasonable [Q the client. In such tramac­tions a review by independent counsel onbehalf of the c1iem is often advisable.

Furthermore, a lawyer may not exploitinformation relating [Q the representation [Qthe client's disadvantage. For example, alawyer who has learned that the c1iem is

investing in specific real estare may nor,without the client's consent, seek [Q acquirenearby properry where doing so wouldadversely affect the diem's plan for invest­

memo Paragraph (a) does nor, however,apply to standard commercial transactionsbetween the lawyer and the c1iem for prod­

UCt or services that the client generally mar­kets [Q others, for example, banking or bro­kerage services, medical services, productsmanufactured or distribuced by the client,and utilities services. In such transactions,

the lawyer has no advantage in dealing withthe dient, and the restrictions in paragraph(a) are unnecessary and impracticable."

D1SCUSSIO : I) The protection of aclient's title to land has historically been the

practice of law and has been accomplishedthrough a title opinion. American BarAssociation Formal Opinion 331 (1972).However, the development and growth oftitle insurance companies and similar enti­ties have raised questions as to the attorney'sparticipation in them.

A minority of jurisdictions have con­cluded that the conflict between an attOrney

representing a client and simultaneouslyhaving a financial interest in a parricipating

title insurance company is so great rhat theconflict cannot be waived. (In rt Opinion682 ofth. Advisory Committu Olt ProftssiOltolEthics, 687 A. 2d 1000 (New Jersey 1997))("The purchaser of title insurance seeks the

maximum possible protection, while the

tide company strives to limit liability in the

event of a claim under the policy. \'(!hereexceptions are negotiable, consent, no mat­rer how well informed, will not remedy theconfliCt of interest.")

However. the consensus has been thar an

anorney. while nill protecting the imerestsof a c1iem. may be an agem for a tide com­pany and be compensated in connectionwith the insurance [issuance] of a policy.The opinions are clear that an anorney maynot receive a fee or commission (delayed ornot) for recommending or selling title insur­ance without fully disclosing to the c1iemthe anorney's financial interest in the trans­action. American Bar Association FormaJOpinion 331 (December 15, 1972);American Bar Association Formal Opinion304 (February 16, 1962). The potentialconflier of interest arising from the 3[[or­ney's financiaJ interest and the resultingeffect on the independent professional judg­ment of the attorney mandates disclosure rooand consenr from the client. Ark. R. Prof.Conduct 1.7(b).

2) 0 rule of professionaJ conduct barsanorneys in differem firms from owningand operating a separate business. \'({hetherit be a restaurant or a title insurance compa­ny. these attorneys are permitted to jointlyenter into such an enterprise.

3) Attorney and non-lawyers are per­mitted ro engage in commercial enrerprises,provided the business does not engage in thepractice of law. Ark. R. Prof. Conduct5.4(b). A corporation cannot practice law,cannot furnish legal services or advice, andcannot render legaJ services or any kind.Ark. Code Ann. § 16-22-211 (a). But sub­section (d) does permit a corporation toengage in the "examination and insuring of

titles to real property."The issuance of title opinions by non­

lawyers has long been held to be the unau­thorized practice of law. Beach Abstract &Guamn", Co. v. Ark. Bor As",., 230 Ark.494,326 S.W: 2d 900, (1959). 0 adviso­ry opinions from the Supreme CounCommittee on the Unauthorized Practice ofLaw have varied from the rule in BeachAbstract. Unlike a title opinion. which is aJlinclusive and gives an opinion as to the sta­nis of the land going back to the originalpatenr, the tirle certificate covers the land,bur does nor certify title [Q the severableaspects of the land (minernl, timber, oil andgas rights) and the cenihca<e only goes backa prescribed number of years. This compa­ny does nor intend to issue either title opin­ions or tirle certificates.

4) (A) Disclosure by AttorneyRule 1.8(a) governs business transaccions

with clients. A client has a special trust in,and is frequently dependent upon, the inde-

pendent judgment of the lawyer, which is to

be: exercised in the diem's best interest. Thepossibility of referral of legal clients (0

another business of the lawyer introduces anexuaneous and potentially confliC[ingmotive, which can threaten or imerfere withthe lawyer's independence of judgmenr.

The dual relationship of an attorney rep­reseming a c1iem and also having an imerestin the title insurance company that will issuetitle insurance is a closer relationship and arelationship with more risks to the c1iemthan the nandard commerical transactionenvisioned by the Comment to Rule 1.8.See generaJly, Howard \Y/. Brill, "BusinessTransacrions with Clients: Ethical or 111­Advised?", Arkallsas Lawyer (Wincer 1995)28. It is difficult, if nOt impossible, for ananorney to maintain the degree of indepen­dence and objectivity necessary co serve anindividual client, when the attorney is aJsoan owner and perhaps an employee of a landritle company that is involved in the trans­action for the individual client.

The client is entitled to know thar thelawyer has an ownership interest in a titlecompany, and that the title company will bemaking a charge for the services provided.Therefore, the committee concludes that anattorney may refer a client to a tide insur­ance company owned in parr by the attor­ney. only if the atcorney has disclosed inwriting that the atcorney has an ownershipinterest in the business, and that the sameservices may he obtained from otherproviders, and only after the client hasacknowledged the same in writing. See Nell)Jersey Supreme Court Advisory Committee onProftssional Ethics, Opinion 657-

Lf the attorney who is providing servicesfor a client also provides services for thecompany in regard co the same rransaction,the potemiaJ conflict must be analyzed bythe arrorney in light of Ark. R. Prof. Cond.1.7(b). Only after successfully navigatingthe requirements of thar rule can the anor­ney represent both the client and the com­pany.

(B) Disclosure by CompanyRule 5.7 of the Model Rules of

Professional Conduct, as adopted by theAmerican Bar Association in February 1994,covers "the responsibilities regarding lawrelated services." The proposed land titleresearch and escrow company falls withinthe definicion of such services. Although

the rule has not been adopted in Arkansas, itis consistent with the exisring rules and

interpretations. If the lawyer individuaJJy orwich others has control of the operations ofa law-related emity, the Rule requires thelawyer co take "reasonable measures toassure that a person obtaining the law-relat­ed services knows that the services providedby the separate entity are nor legal setvicesand that the Rules of Professional Conductthat relate to the c1iem-lawyer relationshipdo not apply." This committee adopts tharmandate. The burden is on the attorney,through the company. to communicate thatinformation to the recipient of the law-relat­ed services prior to an agreement for suchservices. The information should be com­municated in a reasonable way, in light ofthe services and in light of the nature of theclient.

(C) LitigationOf further concern are situations where

the attorneys which have an ownershipinrerest in the tirle company oppose eachother on behaJfof c1ienrs. At least three pri­mary scenarios presem themselves. First thelitigation is related to the land and ro theservices provided by the company, as forexample. in a dispure over warranties oftide. Second, the litigation involves theland, but not any services provided by thecompany, as for example, in a dispute overtrespass upon the tract. Third, the litigationis unrelated to the land, as in a personalIIlJury case.

In all three situations, because the possi­bility of conflicr exists. the anorney mustevaluate the situations by the three party tCStof Rule 1.7(b): whether a reasonable attor­ney would undertake the representation,whether the client has received completedisclosure of the role of both attorneys inthe company, and whether the client hasknowingly consemed. In the first rwo situ­ations, it is difficulr to see an attorney, pur­suanr to the reasonableness standard of Rule1.7(b), concluding that such representationwould be permissible.

In the third situation, the possibility of aconflict exists between the opposing a([or­neys, not with the land or with the clients.Although unlikely, it is conceivable that theattorney may nor be as zealous because hisbusiness partner is the opposing attorney.Therefore Rule 1.7(b) requires that, afterhaving concluded thar representation is per­missible by the standards or a reasonableattOrney, the attorney must make a full dis­closure of the corporate involvemcl1t with

See Page 51

1.1.11 I•. l/S•••rr 119S nr .'r~m.ll LIW!rr II

!IPAUL D. MrXON, Ph.D, P.E. ~ELECTRICAL ENGINEERING CONSULTANT

ELECTRICAL ACCIDENT INVESTIGATION• Reconstruction and Analysis. Property or Equipment Damage

• Personal Injury or Death. Stray Voltage

REGULATORY CONSULTING• Power Line Siting. EMF Expert. CogenerationiSelf-generation

• Electric Utility Deregulation. Regulatory Compliance

PAUL D MIXON Ph 0 PE<> Doctorate in Engineering<> Over 12 Years Engineering Experience<> Experienced Regulatory Engineer<> Experienced Expert Witness<> Electric Utility Industry Specialist

Contact:

fDr. Paul MixonP.O. Box 3338 ra:State University, AR 72467(501)-972-2088E-mail: pmixon@navajo.astate.edu

Tlu Judicial Advisory Opilliom ar~ writtmalld provided by tlu Arkansas Judicial EthicsAdvisory Committu.

MILAS "BUTCH" HALE, IIIherwood. Arkansas

The Arkansas Judicial E,hics AdvisoryCommirree recently issued an advisoryopinion to Milas "Butch" Hale, III, amunicipal court judge in Sherwood,Arkansas. Judge Hale asked whether a parr­time municipal court judge in PulaskiCounry should terminate his current repre­semation of clients with criminal casespending in the Pulaski Coumy CircuitCourts.

The Judicial hhics Advisory Commineeconsidered this question to he a follow-up oftheir recent Advisory Opinion, 98-02, inwhich they concluded that a municipaljudge, as a continuing part-time judge,should nor accept representation of criminaldefendants in the circuir in which rhe pros­ecuting .morney, who appears before the

Ii Thr Irlanlll /'11l)I'r 101.1< 10.llSomlrr 1991

.Iudil'iill .\(h·isol·~· Opinions

judge, has jurisdiction. Ar the time of rheissuance of that opinion, Judge Hale, in hiscapaciry as a private attorney, was involvedin the represemarion of such a criminaldefendant. Secrion D of the ApplicationProvisions of rhe Code of Judicial Conducrrecognizes thar a judge can and should com­ply wirh some provisions "as soon as reason­ably possible." Ir was the Commirree's opin­ion thar the representation resrrictionshould apply prospecrively. Accordingly,Arrorney Hale could continue his represen­tation in pending maners.

JAY C. MIL ER, ESQ.Eureka Springs, AR

The Arkansas Judicial Ethics AdvisoryCommirree recently issued an advisoryopinion to Jay C. Milner, Esq. Mr. Milneris a candidare for judicial office from EurekaSprings, Arkansas. Mr. Milner asked rheCommirtee if he would be in violation ofthe Code of Judicial Conducr by makingpledges and specific campaign promises

wim respecr to changing or improving courtadministration should he be elected.

The Judicial Ethics Advisory Commineewas of the opinion thar Mr. Miner may stategeneral changes or improvements in COUff

administration. However, he should notstate specific terms.

PAUL R. BOSSOEighreenth Judicial Districr

The Arkansas Judicial Ethics AdvisoryComminee recemly issued an advisoryopinion ro Paul R. Bosson, ProsecutingArromey Eighteenth Judicial District. Mr.Bosson asked whether it is proper for amunicipal judge with jurisdiction over caseswherein the rare (as represemed by theprosecuring arrorney) regularly appears to

represenr defendanrs in other municipal orcircuit courts where the same prosecutinganomeyalso represents the State? The opin­ion found rhar ir would be improper for amunicipal judge to represem criminaldefendants in other municipal or circuitcourtS where rhe same prosecuring atrarneyalso represents the Stare.

The Judicial Ethics Advisory Commirteewas of the opinion chat an individual whoaccepts the posirion of a cominuing parr­time judge places the judicial office first inservice and priority, and certain restrictionsmust follow. It is, rhey believe, self evidentrhat a municipal judge who is engaged in anadversarial role opposing a prosecutingarrarney in a criminal case brought by theState and who presides over proceedingsinvolving thar same prosecuting anomey isin an untenable position. however princi­pled that individual may be. Acting as bothjudge and jury, the municipal judge has sig­nificant discrecion in dealing with the pros­ecuting arrorney. To oppose that same attor­ney in another matter creates an appearanceof impropriety which is prohibited by theCode of Judicial Conduct. The opinionconcludes thar under such circumstancesand in the perception of reasonable minds,the abiliry of municipal judges ro carry outtheir responsibiliries with inregriry, compe­rence and impartialiry could he impaired. Itfollows that the inirial responsibility rests onthe municipal judge ro decline the personalrepresentation ofa criminal defendant in thecircuit within which rhe prosecuring anoe­ncy has jurisdiction .•:.

til\\JeI' Ilisl'iplinilll .\ctillns

Bridges. The letter of caution was filed wirh theClerk April 29, 1998. These Rules slate that alawyer shall act with reasonable diligence andpromptness in representing a client and a lawyershall keep a client reasonably informed about thestatus of a matter and promptly comply wirh rea­sonable requests for information.

In his complaint, Mr. Bridges SIated that heemployed Long in Septcmber 1990 to represent himin a dispute with Ross Ford-Mercury. Suit was filedby Long on Mr. Bridges' behalf in October 1990and answered timely by the defendant. [n February1991, a cross-complaint was filed and an answer wastimely filed by Long. Since February 1991, Mr.Bridges has made attempts ro meet wirh Long anddiscuss the case, but Long would be unavailable tospeak with him.

Mr. Bridges provided a copy of the docket sheetwhich reflected that [he case was continued everyquarter for six years. Three cntries on the docketsheet showed that the case was dismissed. OnMarch 5, 1995, an entry was made on the docketsheet reading "D.W.O.P.L.P." which was believed to

stand for Dismissal Without Prejudice for Lack ofProsecution. An entry made June 28, 1996, stated"Per Pit dismissed wlo prejudice." A third entry tothe docket sheer was made 011 September 25, 1996,which stated that action in the case was required onor before October 7, 1996. The docket emryreflec[ed [hat a copy for that notice was mailed to

Long's office on the same date. On November I,1996, an Order of Dismissal was entcred which stat­ed "By agreement of rhe Plaintiff and rheDefendant, this case is dismissed without preju­dice." Mr. Bridges did nor consent to the case beingdismissed and was not informed of his action.

For his response, Long asserted [hal he was sym­pathetic to Mr. Bridges' plight and agreed to repre­sent him even though he could not pay a retainer.Mr. Bridges had a habit of dropping by the officeunannounced to talk with him and he [ried to seehim. Long admitted that there may have been occa­sions when he could not meel with him.

Following the filing of the counter-claim by RossFord-Mercury, Long asserted that M r. Bridges wasadvised that he would continue to pursue the mat­ter blll that he believed that the counter-claimplaced him in a defensive position rather than anoffensive position. A1> a result, Long continued to

See Page 44

A letter of caution was issued to Mr. FletCherLong, Jr., for the violation of Model Rules 1.3 andl.4(a) based upon the complaint of Charles Thomas

MR. FLETCH ER LONG. JR.Forresr City. AR

JOHN T. BATES, P.E. 1-800-299-5950Have recollstructed over 3,000 accidents in 20 states in25 years on highways, streets, railroads, highwayconstruction zones involving trucks, cars, pedestrians.Computer animations and drawings prepared forexhibits. "ACTAR" certified. Over 40 yearsengll1eerll1g expenence.TRAFFIC ACCIDENT RECONSTRUCTION

AND

EVALUATION OF HIGHWAY DESIGN

cd Ms. Crowder and thar when she came to hisoffice her car was about to be repossessed. Eventhough he knew that Ms. Crowder did not live inTennessee, he believed that she was permiTted rorelief file in any other bankruptcy district if theother bankruptcy district were more convenient.He asserted that he did not violate Model Rule1.2(d) as he did not counsel Ms. Crowder to do any­thing criminal: Ms. Crowder's Arkansas address waslisted on rhe Pctition; the case proceeded in thesame manner as if rhe case were filed in Arkansas; nocreditor was misled as to Ms. Crowder's address;and, no rights or defenses were asserted thai wouldnot have been available in Arkansas.

In regard to Model Rule 3.3(a){I), Loftin assert­ed that there were three places on the bankruptcypetition for an attorney to sign. The first requires ananorney to state whar he was to be paid. Lofrin stat­ed that he provided that information. The secondsignature requires an affirmance by an anorney thata debtor is eligible for relief under the BankruptcyCode. Loftin then stated thar Ms. Crowder was eli­gible for such relief and that she did request reliefunder the code. The third signamre, he asserted,requires the attorney to state that he advised thedebtor of dle different forms of relief available. Hestated that he did so. Because he signed in theappropriate places on the bankruptcy petition forthe stated limired purpose, be averred that he didnot make a false statement to any tribunal.

In regard to Model Rule 8.4(d), be asserted rhatthe filing of the bankruptcy petition in the inappro­priate forum was not prejudicial ro the administra­tion of justice. He stated that had the BankruptcyCOUrt transferred the case to the appropriate venue,Ms. Crowder could have pursued her claim in theEastern District of Arkansas. He added that eventhough the Bankruptcy Court for the WesternDistrict of Tennessee was inconvenienced, Ms.Crowder did file a Bankruptcy Petition in Arkansasand the administration of justice was accomplishedalthough it took a little while longer.

A lener of Tc:primand was issued to Mr. DavisHenry Loftin for the violation of Model RulesJ.2(d), 3.3(a)(l) and 8.4(d) based upon theComplaim Before the Committee. The lener ofreprimand was filed with the Clerk March 13, 1998.These Rules stare, in parr, that :t lawyer sh;lll notcounsel a c1iem to engage, or assist a client, in con­duct that the lawyer knows is criminal or fraudulent;that a lay,fyeT shaJl not knowingly make a false starc­mem of material faCT or law ro a tribunal; and, alawyer shall not engage in condun that is prejudicialto rhe administration of justice.

On December 16, 1996, the Honorable WilliamHouston Brown, United Srates Bankruptcy Judgefor the Western District of Tennessee, filed a com­plaim against Loftin regarding his actions in the rep­resentation of debtor Laurarener Crowder, UnitedStales Bankruptcy COLIrt Case No. 96-35720.Judge Brown's complaint explained that in Ms.Crowder's b::lnkruprcy petition, Lofrin asserted thatMs. Crowder had been domiciled or had a residencein the Western District of Tennessee for 180 daysimmediately preceding the date of the filing of rhepetition. The bankruptcy petition showed Ms.Crowder's address to have been 223 Lee Street,Earle, Arkansas. Loftin signed the bankruptcy peti­tion on November 20, 1996, and caused the peti­tion to be filed on November 22, 1996.

Shortly after the commencement of the bank­ruptcy action bur prior to December 3, 1996, acreditor of Ms. Crowder's repossessed her vehicle.Loftin then filed a Complaint to Compel Turnoverof Certain Property from Defendam and forSanctions. A hearing on the Motion was rhen heldbefore Judge Brown on December 5, 1996.Following prescntation of the cvidence. JudgeBrown dismissed both the Complaint and theBankruptcy action because Ms. Crowder confirmedin her testimony that she was a resident ofArkansas.Ms. Crowder's testimony failed to presem a basis forvenue in the U.S. Bankruptcy Court for the\'(festern District ofTennessee. [n Loftin's explana­tion to the Court, he stated that he and his cliemwere concerned about the likelihood that his client'svehicle would be repossessed. Because it was quick­er to drive across the Mississippi River and file thePetition with the U.S. Bankruptcy Court for theWestern District of Tennessee in Memphis rather[han driving to Little Rock, he allowed Ms.

Crowder to sign the Bankruptcy Petition, underpenalty of perjury, and stated that rhe informationcontained therein was true and correct. In his Orderwhich denied his complaint and dismissed Ms.Crowder's Bankruptcy case, Judge Brown foundLofrin's actions to have been improper and an abuse

of the bankruptcy system.For his response, Loftin sr::ued thai he represenr-

The Lllwyer disciplinary actiolls are wrirtell

(lIId provided by 'he Supreme COllrl ofA rkallsas , Commillee 0/1 Professiol/alConduet.

MR. DAVIS HENRY LOFT1NWest Memphis, AR

\01. JJ So. JISIIIIIJlII'r 1998 fllr ,\rkaom 1,;II\)rr ,Il

Continued From Page 43

make appearances in Circuit Court on Mr. Bridges'behalf [0 prevent Judgment from being rakenagainst him. He stated that he evenrually reachedan agreement with rhe anorney for Ross Ford­Mercury whereby both the Complaint and theCounterclaim would he dismissed. This was thenexplained to Mr. Bridges by Long. Long thenbelieved the matter to then be concluded.

MR. DAVID MARK GUNTERHope, AR

A letter of reprimand was issued to Mr. DavidMark Gunter for the violation of Model Rules 1.3and 8.4(d) based upon the Per Curiam complainton appellant Wilbert Muldrew. The letter of repri­mand was filed with the Clerk April 29, 1998.These Rules state, in pan, that a lawyer shall actwith reasonable diligence and promptness in repre­senting a client; and, a lawyer shall nOt engage inconduct that is prejudicial to the administration ofjustice.

Following Gunter's client's conviction on January28, 1997, Gunter timely filed a Notice of Appeal.Subsequently, he failed to timely file a brief despitehaving received twO extensions of time within whichto do so. The Clerk directed written inquiry to

Gunter aboU[ the sta[Us of the case. On Gaober

13, 1997, Gunter called the Clerk and respondedthat he would file a Morion for Belated Brief withinten days. When he failed to do so, on November13,1997, the Court issued an Order to Appear andShow Cause why he should not be held in con­tempt. At the hearing held on December 4, 1997,he pled guilty and was fined $250. Ultimately hedid file a brief.

The Per Curiam complaint was sent to Gumerby certified mail, restricted delivery, on January 2,1998. Gumer signed for the formal complaint onJanuary 8, 1998. He failed to provide theCommittee with a response to the allegations with­in the 20 days provided by Section 5 of theProcedures of the Arkansas Supreme CourtRegulating Professional Conduct of Attorneys atLaw in effect at that time.

MR. ROBERT B. LESLIELittle Rock, AR

A lener of reprimand was issued co Mr. Roben B.Leslie for the violation of Model Rules 1.13, 1.4(b)and 8.4(d) based upon the complaint of Joseph WBrown. The lener of reprimand was filed with theClerk on April 28, 1998. These Rules state that alawyer shall act wirh reasonable diligence andpromptness in representing a cliem; a lawyer shallexplain a maner to the extent reasonably necessaryro permir the client to make informed decisionsregarding the representation; and, a lawyer shall notengage in conduct thar is prejudicial to the admin­istration of justice.

H l'he lrkansasl,alllfr I'nLIJ ,I'n. J/Summer 19l5

Law~'el' I)jsl'iplinal'~' .\l'tions

Mr. Brown hired Leslie during June of 1995 to

represent him in a bankruptcy proceeding. At thetime he filed bankruptcy on Mr. Brown's behalf, hewas the defendant in twO pending lawsuits. Duringthe course of the bankruptcy proceeding, a motionwas filed by the special counsel for the bankruptcyestate wherein it was requested that the specialcounsel be allowed to compromise and settle one ofrhe pending lawsuirs. Mr. Brown had an objectionto the proposed compromise settlement and headvised Leslie of his objeaion. Leslie, then, tookthe appropriate steps to file Mr. Brown's objectionand give the other parties notice of the same.Thereafter, a hearing was set on the motion andobjection with nmice of the hearing being sent roLeslie and the other four attorneys involved in themauer. Nmice was not sent to Mr. Brown by Leslienor by court personnel. Leslie did not auend thehearing on Mr. Brown's behalf. As a result of thefailure to auend, Mr. Brown's objection was dis­missed for failure to prosecute and the CompromiseSettlement was approved causing Mr. Brown a pur­ported loss of $28,000. Ir was several months afterthe Order dismissing the objection was emeredbefore Leslie contacted Mr. Brown to advise him ofhis "oversight." Mr. Brown's recollection is thatLeslie admiued to him that he "screwed up" andoffered free legal services because of his inaction.Because ofwhat Mr. Brown calls his irresponsibility,he had no mecllOd available to him by which hecould recoup his purported loss or challenge theCompromise Settlement.

In his affidavit of response, Leslie acknowledgedrhat he represented Mr. Brown and also thar he filedan objection to the proposed compromise settle­ment on his behalf. According to him, he heardvery liule from Mr. Brown <:fter he filed the objec­tion. He asserted that when he finally spoke withhim, Mr. Brown told him that he was talking direcr­ly with the trustee; that he had a new telephonenumber; and, that he had no permanent place to

stay. He averred that he did not receive notice of thehearing and that was the rcason neither he nor Mr.Brown were present. According to his response,when he received a copy of the Order Approving rneCompromise Settlemem, he prompdy sem the sameto Mr. Brown. He asserted that Mr. Brown did notcomaet him within the time allowed to file aMotion explaining that he had nor received noticeof the hearing. Because he did not hear from Mr.Brown, he assumed that he did nOt wish to prose­cute the objection. He provided a copy of the Orderto Mr. Brown. In his transmittal memo scm withthe Order he advised Mr. Brown to contact him, butnowhere in the memo did he advise Mr. Brown thatrhere was a chance of overturning the Order basedupon lack of notice. When he did speak with Mr.Brown, Leslie said he advised him that he did wantto prosecute his objecrion. Leslie asserted that hechecked with the bankruptcy trustee who said hewould stand by the expired time because he had noinrcresr in revisiting the serrlemenr. When Leslieexplained this fact to Mr. Brown, he told him thathe felr very badly but he did not accept responsibil­ity.

MR. ROBERT DAVID LEWISLittle Rock, AR

A letter of caution was issued to Mr. RabenDavid Lewis for the violation of Model Rules I. I,4.2 and 8.4(d) based upon the complainr of LarryVia. The letter of caution was filed with the Clerkon April 28, 1998. These Rules state, in part, thata lawyer shall provide competent represemation to aclient, to include the legal knowledge, skill, thor­oughness and preparation reasonably necessary forthe represenration; in representing a client, a lawyershall nor communicate about the subject of the rep­resentation with a party the lawyer knows to be rep­resemed by another lawyer in the matter, unless thelawyer has the consent of the other lawyer or isauthorized by law to do so; and, a lawyer shall notengage in conducr that is prejudicial to the admin­istration of justice.

In his affidavit of complaint, Mr. Via explainedthat in October of 1996, he received a letter fromLewis concerning his ffimher, Bonnie Bishop. Mr.Via is his mother's guardian. He was appointed assuch after she had been declared incompetent in1990. Subsequent to 1990 and prior to Lewis'involvemem, Mr. Via's mother's incompetency wasreviewed on three occasions. The purpose of Lewis'lerter was to obtain Mr. Via's signature on a medicalauthorization which would have enabled Lewis to

acquire his mother's medical records. After Mr. Viareceived his letter, he learned that he had been to theBenton Services Center ro see his mother and hadalso received funds from her. Mr. Via responded to

his letter on October 28, 1996. In his response, Mr.Via refused to sign the medical authorization pro­vided by Lewis and explained to him the basis forhis refusal. In addition, Mr. Via directed Lewis norto contact his mother again. He also provided Lewiswith the names of the other attorneys who had pre­viously represented his mother. Subsequent to hisletter to Lewis, Mr. Via learned that Lewis hadreceived additional funds from his mother and hadalso conracted her again despite his directions to thecontrary. M r. Via wrote Lewis after he learned thefaCts. In response to this letter, Lewis wrote Mr. Viaand explained that he was going ro proceed on theassumption that his mother was not incompetent.Lewis also had communication with Gail Laster,who advised him thar she had been appointed asattorney for Mr. Via's mother. Following all of theabovementioned communication, Lewis filed aMotion in probate court on behalf of Mr. Via'smorner. He requested the Court order Mr. Via to

execute a Medical Release from his mother as well asordering Mr. Via to prepare an accounting for theentire time since he was appointed his mother'sguardian. Based upon his pursuit of this Motion,Mr. Via was forced to hire an attorney and travelfrom Moline, Illinois, to attend a hearing in Little

Rock. At the conclusion of the hearing, the Judgefound Lewis' actions were improper. From his resti~

mony at the hearing, it appears that Lewis did not

adequately review the file in the previous probatematters. Lewis contacred Mr. Via's mother and dis­cussed the legal mauer with her despite being aware

that she had a courr-appoinred attorney. He did not

hav~ the con m of the coun-appoinred anorney tohave discussions with Mr. Via's mother. Further, ifhe had made an appropriate inquiry into the previ­ous Court proceedings, it might have proven unnec­essary for the Coun [Q have a hearing and for Mr.Via [0 rctaln the servicC$ of a lawyer yet again.

For his response lewis began by explaining thathe did nOt violate any of the Model Rules as alleged.With regard to Model Rule 1. I, he ~ned that hedid provide com~[em n:prc:sem.uion to a diemand coOlinued by explaining that Mr. Via was nothis client. According l'O Lewis, he did not violateModd Rule 4.2 because this particular situation isnor the ry~ ofsituation Model Rule 4.2 is designedto preveOi. Further, in his opinion Model Rule8.4(d) was nOt violated because his conduct was inthe furtherance of the administration of justice.Factually he explained he was contacted by Mr. Via'smother who wamed his help in gaining her rel~from the Iknton &rvices Centet. He tOld her thatif she would .send him S3OO, he would visit her faceto face. She.sent the funds and he went ro .see her.When he visited with Mr. Via's mother, he assertedthat he asked her various quesrions in order ro checkout her mental n:uus. According to him, Mr. Via'smother answered all his questions correctly.Thereafter, Mr. Via's mother told him that her sonhad put her in the Benton Services Unit eventhough she had never been committed. He provid­ed Mr. Via's mother with a medical release formwhich she executed. The hospiral where he.sent themedical release would not honor the release be:causeMr. Via is his mother's guardian. Lewis acknowl­edged writing Mr. Via and also receiving hisresponse. He also acknowledged that he spokl: withGail Laster, the court-appointed attorney for Mr.Via's mother. After speaking with Ms. Laster, hedetermined that she would not assist in attemptinga release for Mr. Via's mother. He assc=rted that hedid read the probate file and that he did copy largeportions of the same. He explained that in the filehe discovert.-d motions and notices of hearing relat·ing to the assets of Mr. Via's mother. According tohis: response, Mr. Via's mother was n~"t.r .servednotice of the hearing about the sale of her homc=. Inaddirion Lewis explained that the:: cenificates ofdeposit be:longing to Mr. Via's mOl her were paidinto the COUrt and subsequently Gail Laster was paidout of those funds. It was his conclusion after hisreview of the file that Mr. Via's mOlher would "Staya prisoner forever" unless he uied 10 help hc=r.According to him, he spoke with the law clerk forthe First Division Probate Court in Pulaski Countyand she agr«d with his conclusion Ihat he shouldbegin a proceeding on be:half of Mr. Via's mother.\'<'hen he spoke with Mr. Via's mother again, he toldher he would file a Motion on her behalf if she senthim an additonal 5300. She sent the funds and heflied the Motion. The people who attended thehc=aring and who testified against the rt:lief her~uesled were people he be:lic=ves may have a "directfinancial interest in keeping Lhe guardianship open"and in keeping Mr. Via's mother in the mental insli­tution. Lewis averred that when he explained theourcome of the hearing to Mr. Via's mother, she

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began 10 cry and hung up the phone. He c1oS«l hisresponse by stating that he will nor help Mr. Via'smother again and presumes she will die where she iseven though she may be sane and also able to rakecare of herselr.

MR. PATRICK D. STAUBERPlano. TX

A lertc=r of caution was issued to Mr. Parrick D.Stauber for the violation of Model Rules 1.3 and1.4(30) based upon the complaint of CassandraVarnell. The letter of caution was filed with theClerk on April 29. 1998. These Rules stare. in pall,lh:u a lawyer shall act with reasonable diligence andpromptness in representing a client; and, a lawyershall k«p a c1ic=m reasonably informed about thestatus of a matter and promptly comply with rc=a­senable requestS for informarion.

In her complaint, Ms. Varndl stared that shec=mplored Sraube:r to assisr her in the adoprion ofher daughter by her new husband. On Nove::mber13, 1995, Sraube:r was paid with twO checks; onerepreseming attorney's fees and one representing fiI·ing fees. In December 1995, Stauber ~11l theVarnells tWO documents enritled "Consent to

Adoption" and "Petition for Adoption." Ms.Varnell stated that the documel1ls were signed, nota­rized, and returned to him. Ms. Varnell madenumetous Ollis to his office .seeking information onthe status of the adoption but was never able to dis·cuss me matter with him. In Decembe:r 1996, Ms.Varndl requested from the White Count)' ProbateClerk a copy of all pleadings filed in he.r daughter'sadoption case. Ms. Varnell was informed thar therewas no adoption involving her daughter.

For his response, Stauber admitted that hereceived attorney's fees and filing fees, and thal heprepared a Consent and a Petition for Adoption.He stated that the documents were not returned tohim by the Varnells. He asselled that he made sev­eral calls to the Varnells to check on the status of themanc=r but was not successful in speaking withthe:m. He denied re«iving r~uC$lS from theVarnells about the maner. Thereafter, he movedfrom SeaTC)', Arkansas, to Texas bur had a POSt office::box in Searcy where his mail was forwarded. Hestated that the mail was regularly checked but thathe djd not receive either of the documc=nts from theVarnells. He denied violating any of the ModelRules of Professional Conduct.

MR. RAY EUGENE HARTEN TElLillie Rock, AR

A lener of reprimand was issued to Mr. RayEugene Hanensrc=in for the violation of ModelRules 1.1. 1.3. 1.4(.) and 8.4(d) bas<d upon lh,complaint of Loretta Armstrong. The letter wasfiled with the lerk on May 5, 1998. These Rulessrate, in pall. that a lawyer shall provide competentrepresentation to a client, including the skiJl, thor·oughness and preparation reasonably necessary for

the representation; a lawyer shall aCI with reasonablediligence and promptness in representing a client; alawyer shall keep a client reasonably informed aboutthe status of a maner and promptly comply withreasonable requests for information; and, a lawyershall not engage in conduct that is prejudicial to theadministration of justice.

According to thc= informarion provided in Ms.Armstrong's affidavit of complaint, Hartenstein wasconracted during Octobe:r of 1996 b}' her. Ms.Armstrong wanted him to assist her in certain crim­inal proceedings pending in Faulkner County, oneinvolving a felony drug charge and the other involv.ing a probation revocation. Ms. Armstrong's con­tact wilh Hartenstein came following the failure ofher trial counsel. Frank Shaw, to apprise her of aplea offer made by the prosecutor in one of hercriminal matters. Hartenstein \\l3S unable to repre­.sent Ms. Armstrong at het trial on drug chargesbecause the Judge would not grant a continuance sohe could ad~uatdy prepare. Following the jurytrial, he agreed to repr~nt Ms. Armstrong in herpostconviction proceedings and in her probationrC\'0C3tion maHer. Subsequently, Ms. Armstrongattempted to contact him numerous times, both byIc=rrer and by tdephone. Ms. Armstrong was unableto conract Hartenstein. On January 17, 1997, heSCnt Ms. Armstrong a letter wherein he advised herthat a pelition had been filed on her be:half He alsotold Ms. Armstrong that the law was definitely inher favor. He told Ms. Armstrong thaI he filed thepetition on the Monday be:fore January 17, 1997,which would have been January 13, 1997. In factthe petition y.'a$ not filed until January 16. 1997. Inaddition, he filed the Rule 37 Petition in Ms.Armsrrong's probation revocation instead of theproceeding wherein Ms. Armstrong had a jury trialon the drug charge. In thc= response 10 the petition.the prosecuting attorney assc-rted that the petition\\l3S tOO late w be considered by Ihe COUrt. Heexplained in a subsequenr lettcr to Ms. Armstrongthat he needed a documenr from Frank Shaw's officein order to address the issue raised by the pro.sccut·ing attorney. He:: did not advise Ms. Armstrongwhat document he needc=d. Since the judgment wasentered on Octobe:r 11, 1996, the Petition wasr~uired to be: filed on or be:fore January 9, 1997.Even though he be:lieved that the law was definitelyon his side, it did not maHer because he failed ro filerhe Petition in a timely manner. He also failed 1'0

take any action in the probation rC\'ocation matteron Ms. Armstrong's behalf.

His response to the formal complaint began byexpressing his belief that Ms. Armsrrong's case rep­resented a classic example of coun-sanctioned pros·ccutorial misconduct. He acknowledged that FrankShaw received a plea afTer relative to Ms.Armstrong's ca.se which was nOt communicated toMs. Armstrong. When Ms. Armstrong lorned ofthe plea offer. the prosccuwr explained that it Y.'a$

no longer open so the case would go to trial.According LO Hartenstein, his first action on Ms.Armstrong's behalf was to attempt to have the pleaoffer reinstated. He knew that the failure to com·

See Page 47

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municare the offer constituted ineffective assistance

of counsel and reasoned that the trial judge wouldeither have the prosecutor reinstate the plea offer orwould continue the case so he could prepare to rep­resent Ms. Armstrong instead of Mr. Shaw. Heasserted that on October I I, 1996, Judge McNeil"ignored the had faith and misconduct on the parrof the prosecutor" and caused Ms. Armstrong tohave to go to trial with Mr. Shaw as her anorney.He asserted that the prosecutor was vindictive andacted in bad faim. Further, he posited that JudgeMcNeil likewise assumed a vindictive anitude by hisfailure to perform his judicial dudes and therebysanctioned or approved of what he referred to asmisconduct by the prosecutor. He advised theCoun of his intention to file a Rule 37 Petition. Inaddition. he explained to the Coun that the petitioncould not be filed sooner than January 9, 1997,because of his involvement in another dient's mat­ter. He acknowledged that his contact with Ms.Armstrong during the subsequent time period wasminimal. Even though the file mark on the Rule 37Petition is January 16, 1997, he assened that it was"filed by mail" on January 13, 1997. He explainedthat the incorrect case number he placed on thepetition was provided to him by the Coun. His rea­soning for taking no action on the probation revo­cation maner was because it had to be delayed untilthe Rule 37 Petition was heard. The Rule 37 hear­ing was held on December 1, 1997, and he present­ed evidence demonstrating Ms. Armstrong's entitle­ment to relief. The matter was then taken underadvisement by the trial judge. Prior to the day hewas relieved from representing Ms. Armstrongbecause of the complaint filed hetein, the trial judgedenied the Rule 37 because it was untimely filed byHartenstein. According to him, the judge's rulingwas based upon a file matk which he believed wasinaccurate. He asserted that he intended to contestthe accuracy of the file mark of the judgment.However, it appeared that such a challenge would beprohibited on appeal since he did not challenge itduring the hearing on the untimely filed Rule 37Petition.

MS. TONA MARlA DEMERSNorth Little Rock, AR

A letter of caution was issued to Ms. Tona MariaDeMers for the violation of Model Rules 1.1, 8.1 (a)and 8.4(d) based upon the complaint of RaymondSanders. The lener was filed with the Clerk May 5,1998. These Rules State, in part, that a lawyer shallprovide competent reptesentation to adient.Competenr reptesemation requires the legal knowl­edge, skill, thoroughness and preparation reasonablynecessary for the representation; a lawyer shall actwith reasonable diligence and promptness in repre­senting a client; a lawyer in connection with a disci­plinary maner shall not knowingly make a falsestatement of material faCf; and a lawyer shall notengage in conduct that is prejudicial ro the admin­istration of justice.

The facts as set out below led to DeMers' clients.

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Raymond Sanders, filing a pro Ie Motion For RuleOn The Clerk. The Motion was granted.Appellant's conviction of capital felony murder inthe death of Ftederick laSalle was affirmed inOctober of 1992. Subsequently, DeMers filed aRule 37 petition for POSt conviction reliefin the trialCOUrt challenging the judgment. No action was evertaken on the petition. Four years later, on OctoberI, 1996, appellant filed a pro Ie amended petitionpursuant to Rule 37. The tecord did nOt contain anorder relieving DeMers as counsel; neither did itcontain any explanation ofwhy the original petitionremained pending for four years. On October 10,1996, the trial court dismissed the petirion asuntimely. Appellant timely filed a pro Ie notice ofappeal; however, the record was not timely filed.Appellanr, who is now represented by other counse!'filed a Motion For Rule On The Clerk to belatedlylodge the record. In granting the motion, the Counstated that DeMers was obligated to obtain a rulingon the Rule 37 petition and temain RaymondSanders' attorney until relieved.

In her Affidavit of Response she averred that sherepresented appellant in his resentencing trial andthrough his appeal to the Arkansas Supreme Court.She averred that once the case was affirmed it had togo to the United States Supreme Court. SinceDeMers is not admitted to praCtice before that counanother attorney assumed the representation andpicked up her file. Successor counsel filed a petitionfor cerfiomri which was denied. DeMers averredthar her understanding was that successor counselwas to file a Rule 37 petition alleging ineffectiveassistance of counsel on her part. She stated a.ffir~

matively that she "had never represented RaymondSanders on a Rule 37 against anyone." Rather, shefiled a direct appeal from his resentencing trial.

As a result of the statement in her Affidavit thatshe "never represented Raymond Sanders on a Rule37 against anyone" a check of the Arkansas SupremeCourt Clerk's records was made. Contained in therecord was a Rule 37 pedtion apparently signed byDeMers and filed on December 4, 1992, in theCircuit Court of Hot Spring County. The directcontradiction between her statement and the officialrecord caused a supplemental complaint allegingviolation of Model Rule 8.1 (a) to be filed againsther.

DeMers began her Supplemental Affidavit ofResponse by stating that prior to submitting her ini­tial response she spent considerable time at theClerk's office attempting to locare anything thatwould COllnect her to a Rule 37 petition forRaymond Sanders. Following her receipt of theSupplemental Complaint she contacted currentcounsel for Mr. Sandets to see it there was anythingrelating to a Rule 37 petition in the file that wasobtained from her years before. The attorney faxedher a copy of the Rule 37 petition that theCommittee would later serve on her. The HatSpring County Clerk did nm have the original peti­tion, only a copy on fax paper. She admitted thatthe signature did appear to be hers. She explained,however, that the passage of five years has pur her ata disadvantage in recalling particular actions shemay have taken. She averred that she has no mem-

ory of filing the petition; that others, includinginmates have access to her signature; or that possibly

a secretary faxed it ro the clerk by mistake.

MS. LORI A. MOSBYLittle Rock, AR

A letter of reprimand and a fine in the amount of$250.00 was issued to Ms. Lori A. Mosby for theviolation of Model Rules 1.3(a), 1.4(a) and 1.8(e)based upon rhe complaint of Cleophus Martin. Theletter was filed with the Clerk on April 14, 1998.These Rules state, in pertinent part, that a lawyershall act with reasonable diligence and promprnessin representing a client; a lavvyer shall keep a clientreasonably informed about the stams of a matterand promptly comply wirh reasonable requests forinformation; and. a Ia'vyer shall not provide finan­cial assistance to a client in connection with pend­ing or contemplated litigation.

The factual circumstances appearing from theevidence before the Committee and Mosby's admis­sion are as follow: Cleophus Martin was the driverof an automobile involved in an accident on January24, 1995. A passenger in Mr. Marrin's vehicle, aminor, was injured along with Mr. Martin. Somefew days larer, by written contract of employment,Mosby undertook legal representation of Mr.Martin and Angela Williams, the mother of theminor child. Both injured parties sought andreceived medical treatment to varying degrees. Mr.Martin complained that during the following yearhe made numerous attempts to contact Mosby toascertain the status of his legal maHer and to requestinformation. Although Mr. Martin was able to

communicate with her on a few occasions, he wasunsuccessful for the most p.m in his attempts to

speak with her by telephone and was never able fO

visit with her in person despite his efforts to do so.Mosby's file refleCted that she had sem three letters,two in February 1995 and one on May 8, 1995, to

various insurance carriers in connection with herclients' claims. The evidence also reflected that Mr.Martin was sent three letters by Mosby. A letter onMay 8, 1995, advised him of her hopes fO settle thecase without resort fO a lawsuit and the difficultypresemed by the failure of the police to cite anyparty with a traffic violation in connection with thecollision. A letter ofAugust 24, 1995. informed Mr.Martin of the insurance company's denial of liabili­ty on the part of its insured and requested $110 fora filing fee if he wished to go forward. It was unclearas to what response, if any, was generated by that let­ter. Finally, on April 11, 1996, Mosby wrote bothMr. Marrin and Ms. Williams apprising them of thedifficulties she fitced by virtue of rhe accidentinvolving three vehicles and the lack of a citationissued to any of the drivers, and advising them ofher withdrawal from representation. In addition,she advised Mr. Martin that he would nOt beresponsible for repayment of rhe loans she had madeto him. It seems that on occasion when Mr. Martinhad been in contact with Mosby that he acquaintedher with his financial plight and she caused $200 to

See Page 48

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A letter of caution was issued to Mr. PatrickStauber for the violation of Model Rules 1.3 and1.4(a) based upon lhe complaim of Cathi LynnHenry. The lener was filed with the Clerk onSeptember 23, 1997. These Rules state thal alawyer shall act with reasonable diligence andpromprness in representing a dient and that alawyer shall keep a diem reasonably informed aboutthe status of a matter and promptly comply withreasonable requests for information.

In her complaint, Ms. Henry stated that sheemployed Stauber on OClOber 21, 1996, for thepurpose of obtaining a divorce. On that date shepaid him $235.00 which represented $125.00 inattorney's fees and $110.00 in filing fees. Heaccepted the payment, provided her with a receipr,and indicated that the divorce complaint would befiled the next day. Ms. Henry made numerous tele­phone calls to his office and left messages for him to

call. No complaint for divorce had been filed byhim on behalf of Ms. Henry as of the date of her

mare responsibility for the managemem of the officewas his. Furthermore, he stated that he now picksup all of his mail and assured the Comminee thatfuture appeals will proceed in a timely fashion.

MR. PHILLIP K. KINSEYFr. Smith, AR

A letter of caurion was issued to Mr. Phillip K.Kinsey for the violation of Model Rules 1.3, 1.4(a)and 8.4(d) based upon the complaint by David Fry.The letter was filed with rhe Clerk on May 19,1998. These Rules state that a lawyer shall act withreasonable diligence and promptness in represcntinga dient; a lawyer shall keep a client reasonablyinformed about the status of a matter and promptlycomply with reasonable requests for information;and a lawyer shall not engage in conduct rhar is prej­udicial to the administration of justice.

For his complaint, Mr. Fry explained that he fileda pro se Complaint in Fan Smith Municipal Counin 1995. The opposing party answered and filed acounterclaim. At the hearing in Municipal COUrt,the Court dismissed both the complaint and thecounterclaim. Within the time for filing an appeal,Mr. Fry hired Kinsey and paid him the cost for fil­ing the appeal in Circuit COLIrt. However, with oneexception Mr. Fry was unable to discuss his casewith Kinsey. He made numerous phone calls to himand left messages bur none of his phone calls werereturned. When Mr. Fry went to the SebastianCounty Circuit Clerk's office he discovered thatthere was no appeal filed on his behalf within therime provided by law.

For his response, he admitted that the allegationsmade by Mr. Fry were true. He also explained thatfollowing receipt of the formal complaint filed byMr. Fry, he had scheduled an appointment to meetwith him ro reconcile their differenccs.

MR. PATRICK STAUBERPlano, TX

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lawyer shall act with reasonable diligence andprompmess in representing a client; and, a lav,ryershall not engage in conduct that is prejudicial to rheadministration of justice.

The Arkansas Court of Appeals forwarded thiscriminal appeal to the Committee on ProfessionalConduct for appropriate action. On April 22,1997, Meurer filed a Motion for Extension of BriefTime requesting seven (7) additional days to flIe thebrief with the Court of Appeals. He averred in hismotion thar the previous extension was granted asthe "final" extension. The instant request for addi­tional rime was necessitated by an "unexpected" per­sonal tragedy which resulred in his inability to com­plete the brief by the deadline despite the fact thathe had been "working diligently" on it. The Counnoted in its Per Curiam Opinion that through April22, 1997, Meurer received a total of 150 days briefrime. The Coun stared that his motion cited goodreasons for the additional short extension, bur thatas of May 20 he srill had not rendered a brief. TheCourt rhen granred him to June 3 to file the brief.adding that if a brief was not filed by said date ashow-cause order would be entered. Ultimately, hefiled the brief and his dient's conviction wasaffirmed.

He stared in mitigation that he formerlyemployed a secretary who was irresponsible with hismail. Once he traced the problem [Q her she wasreplaced. He, however, acknowledged that the ulti-

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A letter of reprimand and a fine for $100.00 wasissued to Mr. Robert Fuller Meurer for the violationof Model Rules 1.3 and 8.4(d) based upon the PerCuriam complaint on appellant Raben Turner, Jr.The lener was filed with the Clerk on April 14,1998. These Rules state, in pertinent part, that a

be delivered ro him on one occasion and $100 onanother. It was her stated belief that rhese loanswere personal loans made out of her concern for hiswelfare, they were nOt made "in connecdon" withthe pending legal maner and, further, were to berepaid "on demand" without regard ro the results ofthe legal maner.

In her volunteered Slatement to the Committee,she apologized for her conduct in this maner andexplained thar she now realized that she did notfully comprehend and appreciate all of the applica­rions of some of the provisions of the Model Rules.In funher recognition of her sometimes limitedaccessibility to clients in the past, she stated thar shehas now undertaken substantial remedial actions inregard to her office arrangements and telephoneprocedures so that she is bener able to maintaincommunications with her clients.

Continued From Page 47

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MR. GORDON LEE HUMPHREY, JR.Linle Rock, AR

On recommendarion of the Supreme CourtCommittee on Professional Conduct, the SupremeCoun of Arkansas accepted the surre:nder of me'License of Gordon lec: Humphn:y, Jr., of Linle'Rock, Arkansas to practice law in the State ofArkansas.

complaint.For his response, Stauber admined mar he was

emplored by Ms. Henry as her anornq. He naredthai he was com.lCrcd by Ms. Henry on rwa occa·sians. In latt'. 1995. Ms. Henry contacted him todiscuss a possible di,'O(ce. Following the rnlXcingwith him, Ms. Henry wanted (0 discuss with herhusband 3. pmc'Ofial pro~rty sc=rdemem. Ms.Henry then left Stauber's office and did not returnto his office umil the f.all of 1996.

In 19%, Ms. Henry returned and asked him tostart the divorce' process. 11 was at that time Stauberinformed Ms. Henry that he was consideringwherner [0 leave the practice of law. He told Ms.Henry that if she wanted (0 pursue the' di,'orce thataU paperwork WQuld nerd. to be approved as quick­lyas possible. He (Old her thai ifhe decided to leavethe practice of law, that he would bc rt:locating toanothcr area rather quickly. Ms. Henry thenretained him and he informed her rhat she wouldreceive a copy of the divorce complaim and proper­ty senlemen! agreemelll soon.

Stauber SI:lted thai he mailed a copy of thedivorce complaint and property sertlement agr~·

lllent 10 his diem wilh instrucrions 10 contact himupon her approval or with reqUesled changes. Hereceivcd no response from Ms. Hemy to the mailingand was not aware of any phone calls made to himby Ms. Henry. II was his belicf thar Ms. Henry hadeither reconciled with her husband or was nor ableto continue wilh her case.

As he had nor heard from Ms. Henry, he consid­ered rhe matter closed. The lotal amount of timespent on Ms. Henry's case was 3 and 3/4 hours. Ata rare of $75.00 per hour. Ms. Henry's balanceacceded that amoul1l initially paid. He stated malit was inlended that should the action not be com­pleted. all amounts paid would be applied to thebalance owed by Ms. Henry for anomey's feesearned but nOI paid.

In his response. he St:lted rhat he did not wish forclients to be disappointed with his work and rhal hewas, Iherefore, fOfW<lrding a check to Ms. Henry inthe amount ofS110.oo for the return of filing feesnOI used. Ms. Henry indianed thai she had notrrce:i\'ed a check as st.ned in his response.

MS. SARAH WILSO RICE

Upon her verified. petition for volunrary transfer to

inactive statuS, the following named anorney was

placed on voluntary inacti\'e S{atw by meCommirl« during May 1998: Sarah Wilson Rice#90114.

MR. CARROLL P. CHRISTIANJacksonville, AR

On recommedalion of the Supreme COUll

Comminee on Professional Conduct. the SupremeCourt of Arkansas accepted the surrender of thelicense of Carroll I~ Chrisrian, of Jacksonville,Arkansas to practice law in the Siale of Arkansas.

RICK PETERSON31 Pivot Rock Road • Eureka Springs, Arkansas 72632

501-253-7833

1,l.llll.l/Sumwrr 1995 Tbr \r~lulill.a\l}rr 19

J>ROFESSrONALLAW LIBRARY

Arkansas BarAssociationPublications are on the

LOIS CD-ROM!The Arkansas Bar Association and LOIS have

teamed up to produce a comprehensive law libraryfor Arkansas. This CD-ROM contains a completeArkansas primary law library PLUS publicationsfrom the Arkansas Bar Association.

Arkansas Bar Association Publicationson this CD-ROM:

Bankruptcy Handbook

Corporation SystemDebtor/Creditor RelationsDomestic Relations HandbookElder Law Desk ManualFono BookHandling Appeals in ArkansasLaw Office HandbookProbate Law SystemReal Estate Titles

Trial Notebook

Arkansas Primary Law on this CD-ROM:Supreme Court Cases from 1924Coun of Appeals from 1979Eighth Circuit CasesCodeAttorney General OpinionsActs (1993 to 1997)Regulations·Civil Jury InstructionsCourt RulesJudicial Ethics OpinionsCircuit Court Benchbook*

Juvenile Judges' Benchbook*

All Arkansas Bar Association Titles can be purchasedby Bar Association members for $590 and by non-members

• for $790. Individual titles are also available. ArkansasPrimary Law is available for only $600 per year to bothmembers and non-members.

Put the power of LOIS and the Arkansas Bar Assoc. towork for you. CaU 800-364-2512, ext. 152 to place your

• order or request a FREE trial copy.

*These databases are available for an additional charge. 1&Arkansas BarWindow, is. ,..i5l''''' tnd"norl< 0' Mi,,,,,,,ft CO'1'. • Association

III lI(lmol'jalll

JOHN T. LIVINGSTON

Long-time Association member John T.Livingston, of Dallas, Texas, formerly of

ashville, Arkansas, died recently at the ageof82. Mr. Livingsron was born in 1914 inBingen. Arkansas. and graduated from FortSmirh High School. He received his lawdegree from the University of ArkansasSchool of Law in 1937. and was also a mem­ber of the Texas and Illinois BarAssociations. He served as a Captain in theUnited States Army duting World War II,and later worked for rhe Hunt OilCompany for 27 years.

Mr. Livingsron is survived by his wife.Frances. ro whom he was married for 57years. and was a member of me Casa LindaPresbyterian Church.

HON. J. H. EVANS

Jeptha H. Evans, 74, of Ft. Smith died inApril. He graduated from the U.S. MilitaryAcademy in 1945 and served five years inthe Air Force. He received a Jaw degreefrom the University of Arkansas and servedthe Sebastian and Logan County area asProsecuting Anomey and Chancery Judgein the 14th Judicial Districe. He served onnumerous Bar Association Commiueesfrom 1954 1974 including theMembership Commiuce, Eleccion LawRevision Commiuec and the Judicial

ominacions Comminee. In later years hewas active in the oil and gas business.

He is survived by his wife, Billie SueEvans; one son, Roben Hughes Evans of Fe.Smirh; one daughter, Laura Evans Harwellof Clarksville; and four grandchildren.

ARTHUR MACOM

Anhur Macom, age 85, died in May inPine Bluff.

He was the senior partner of his firm,Macom, Moorhead, Green & Henry andserved on the Inrernational Law Commineeof the Arkansas Bar Association and theImernational Law Section of the AmericanBar Association. He also served 10 years asjustice of the peace on Arkansas County'sQuorum Coun and several terms on meStungan school board.

He is survived by his wife, Helen BrokawMacom; his daughter, Monique (Nicki)Horronj four grandchildren; three great­grandchildren; and twO nephews.

The Arka/lsas Bar Foundation acknowl­edges with grateful appreciation thereceipt of memorial gifts and scholar­ship contribuitions given in memory ofthe following individuals from March28, 1998 through June 18, 1998:

IN MEMOR\' OF SUSAN DIXON

ancy H. Bailey

IN MEMORY OF MAXINE GLOVER

Judge William R. Wilson. Jr.

IN MEMORY OF JUSTIN FRANKLIN

HATHELD

Judith R. Gray

IN MEMORY OF N. DALE PRICE

Nancy H. Bailey

I MEMORY OF ANN R. RILEY

Nancy H. Bailey

HORACE H. McKENZIE

SC.IOLARSI-IW FUND

An endowed scholarship has recent­ly been established with the ArkansasBar Foundation in memory of HoraceH. McKenzie. The Horace H. McKellzieScholarship will provide all enduringmeans of remembering an outstandingImvyer as well as provide an excel/elllway to aill deserving law stude1lls.Memorials designated to the HoraceMcKenzie Scholarship Fund may bemade to the Arkansas Bar Foundation,400 Wesr Markham, LillIe Rock,Arkansas 72201.

HORACE H. McKENZIE SCHOLARSHIP

Fu D, IN MEMORY OF HORACE H.

McKENZIE

James H. McKenzieLaw Firm of McKenzie, McRae,Vasser & Barber, PLLCWilliam A. Martin

Please send obituaries 10: Adrienne Brietzke. Editor.77,e Arkansas Lawyer, 400 West Markham, LillieRock. AR 72201 5OI1375-4!i06 or 8001609-5668 orfax correspondence 10 501-375-4901

7'l,e editors resen't! Ihe righ, 10 edit copy for lel/gth(llld comilJuit)\ Ifa /)110'0 is aI'ai/able. IJ/ease send alldilldicate w/lether it is to be refumed.

Cominued From Page 41

the opposing attorney and seek the consentof the client before proceeding with me rep­resentation. The diem is entitled to knowl­

edge of the personal ties that may pull at theloyalty of the attorney.

Such disclosure and consent is necessaryto avoid the "appearance of impropriety."

The Supreme Court has described theappearan~of impropriety concept as "a rockupon which are built the rules guidinglawyers in meir moral and ethical conduct,"

and likewise it should guide this commineein interpreting the rules of professional con­duct. BllrnUt~ v. Morgan, 303 Ark. 150,156,794 S.W. 2d 145, 148 (1990).

CONCLUSION:At least four restrictions are applicable to

the 3rrorneys entering into the proposedcompany.

1) lienrs who will be referred to thecompany or will be customers of the compa­ny muSt be informed in writing that theanorney has a financial interest in the com­pany, and their written consent ro the trans­action obtained.

2) Likewise, individuals who deal withthe company must be reasonably informedmat the company is nOt practicing law orrendering legal services, and me protections

of the profession are not applicable.3) The a((orney~ownercannot engage in

an adversarial relationship with the companyor with other owners of me company in

regard to rdated property disputes.4) The attorney-owner can engage in an

adversarial relationship with other owners onnon-property related disputes, only upon

proper notice to and consent by all affectedparries.

NOTICE''This is an opinion only of the Arkansas

Bar As ociaLion which is a voluntary asso­ciation of attorneys licensed to practice inthe State of Arkansas and reliance thereonis voluntary and relieves any Associationmember from liability for the content here­

of. This opinion is intended 10 be theAssociation's best interpretation of the

Model Rules of Professional ConducI as

promulgated by the Supreme Coun ofArkansas as that code applies 10 the written

facts presented 10 the Committee."

Arkansas IJar AssociationBy: Howard W Bri/l. Reporter for Professiollal

Et"ics aud Grievcmces Comminee

l'ol.ll,lo.llSommpr I~~S Thp ,Irkanm l.ollTPf 51

Introducing

OroYo KNow...

A column series brought (0 you by theArkansas Bar Associ.uion, in celebration ofOUf emennial Yor. It is designed to pro­vide interesting F.aC15 and anecdOle5 aboUithe many lawyers who have contributed (0

the hisrory of the law, particularly inArkansas. and will be shared weekly withnewspapers around the state. Be sure to

look in your local paper for continuation ofthe series - and if you don't see it, call yourlocal ediwr.

CHASING A RAINBOW There never was anysystem of law mar was nOl ~rter than nolaw, wrotc Uriah M. R~, the first Presidentof the Arkansas Bar Associar.ion (1899) andPresident of the America.n Bar Association,1901-1902. Born in Kentucky in 1834,Judge Rose srudied urin at the age of five.became a deputy circuit clerk as a teenagerand graduated from Transylvania LawSchool in Pennsylvania at 19. Amacted byArkanS2s' weather, he brought his bride [0

Batesville in 1853. In 1860 he was appoim.ed chancellor of the only chancery circuit inArkansas. After the Civil War, he resigned

his judgeship and practiced law in LittleRock umil his death in 1913, declining afederal judgeship and a U.S. Senate seatalong the way. Tho~ who knew him saidhis outsta.nding characteristics were hisgracefulness and his scholarship. His St':J.tuC

stands in Statuary HaJl of the U.S. Capitol.v

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• LEXIS··NEXIS· lEXIS. NEXIS ana u.fll'olDlt-tUlbell in ret;loStet!d ltadetNtk! 01 Reed £!se'vlef Pl~1llS 1rI::. usedLRleIllcense The INfOWATION ARRAY k9:t Is I tradIImart 01 Reed [Iseve I'f~es Inc" used lJlderlanse C 1998 LEXIS-NEXJS. I dlVlSlOn 01 Rlll!ll Elsevier Inc All rlgllls reserved