P ST TRA MAiflCDISABILITY STA ES:PSYCHIATRIC NO

~~~PSYCHOLOG ~t~~~CONTRIBUTI S

-Max Alden Baker, M.D.

42/Arkansas Lawyer/April 1976

INTRODUCTIONMost cases of on-tha-job industrial in­

juries are transient phenomena with ra­pid recovery and return to the premorbidfunctional states. A minority of casestakes a much different course withprogressive deterioration into a totallynon-functional pathological statedespite on-going, and often intensive,medical care. When this refractorycourse ensues, such injuries areassociated with major personal sufferingand income loss for the injured personand his family. These, injuries causemajor costs to management in terms ofdiminished productivity, personnel turn­over, and medical and legal care.

The purpose of this paper is to explorethe role of the patient's emotionalmakeup and psychiatric status in thecausation or complication 01 thesepathological post-traumatic disabilitystates.

CLASSIFICATION OF PATIENTS

The current official psychiatric nomen­clature does not provide a precisemethod of classification of patients withpost-traumatic disabilities. In ouropinion, such patients may be dividedinto four major groups:

GROUP I: Those who have a demon­strable organic structural lesion (e.g.,the presence of a herniated disc onmyelography associated withevidence of nerve involvement onphysical examination and/or elec­tromyography) and In whom there isno evidence of psychiatric disease or"functional overlay" (a term reflectingthe examining physician's opinion thatthe patient's reaction to the injury ordefect Is inappropriate or excessive.)

GROUP II: Those who have a demon­strable organic lesion but who alsohave evidence of psychiatric illness orpsychological factors which may becontributing to or complicating thecondition (e.g., a coexisting severedepression, alcohol or drug abuse,psychosis, or pre-existing personalitydisorder).

GROUP III: Those who are without ademonstrable organic structuraldefect and whose pathological deficitis caused by underlying uncoMClouspsychological factors ("conversionreactions"). The deficit could be eithera physical symptom or pain.

GROUP IV: Those who are without ademonstrable organic structuraldefect and whose pathological deficitis caused by cORaclouI psychologicalfactors ("overt malingering"). Thedeficit could be either a physicalsymptom or pain.

It is of practical importance thatalthough Groups I and II representclinically distinct categories, Groups IIIand IV may overlap in clinical practiceILe., may primarily be conversion reac­tions (Group III) but also have somecomponent of conscious desire for com­pensation (Group IV).1

FACTORS INCREASING THE RISKOF PSYCHIATRICCOMPLICATIONS

In our experience, psychiatric com­plications most commonly occur insituations in which the patient isangered or threatened by problems inobtaining Workman's Compensationbenefits or by difficulties in patient­employer, Client-attorney, or patient­physician relationships. The centraltheme of these complications is usuallyone of distrust and fear that they are notbeing treated fairly or with respect. Forexample, the patient may suspect thatthe physician, since he is paid by the in­surance carrier, will produce an opinionfavorable to the company's interests sothat the company will send him otherpatients in the future. Frecuently, thesepatients distrust their attorney, feelingthat he is disinterested in their case orthat his expected share of the award Isexcessive. Another recurrent theme Isthat the particular company has a badrecord with co-workers who werepreviously Injured in that the employeewas treated unfairly. Claims that thp par­ticular company fires persons as soon asthey return to work, doesn't try to workwith the doctor's instructions regardingspecific work limitations, allows super­visors to take advantage of employees,etc., are recurrent verbalizations ex­pressed by these patients.

GROUP II PATIENTS:THE ROLE OF PSYCHIATRIC

ILLNESS AS ACOMPLICATING FACTOR

II it is assumed that the incidence ofpsychiatric illness in a population ofworkers is similar to that present in thegeneral population, between 20-30% ofworkers, including those who have on­the-job injuries, will have a majorpsychiatric illness sometime in theirlifetime (Lemkau and Crocetli, 1967). ifthe employee has a psychiatric distur­bance in progress at the time hesustains the injury, the psychiatricillness may significantly interfere withthe patient's reaction to his injury, hisrecovery, and his response to con­ventional therapeutic measures, Thesecomplicating illnesses must be iden­tified and treated in order to obtainmaximal rehabilitation.

• Case example: B.Y., a 48 year old,white, female school nurse, had ahistory of psychiatric illness datingback to her college days when shehad a severe nervous breakdownrequiring her to drop out of nursingschool for a year. She soughtpsychiatric care and fully recovered,finished school, and was married.Following the birth of her second childat age 30, she had another period ofpsychiatric illness characterized byelation, grandiosity, inappropriatebehavior, and paranoid delusions. Shewas hospitalized and treated withchemotherapy, again with fullrecovery. She was discharged frompsychiatric care after a year of out­patient therapy. She was without anyfurther trouble until startingmenopause, when she became mildlydepressed, was very irritable, hadtrouble sleeping, lost her sex drive,and reduced her social life. The familyattributed her moodiness to thechange of life and attempted to besupportive. She was able to continueworking, which was necessary to helpsupport her son's college expenses.The injury occurred while she was at­tempting to calm a frightened childwho had become agitated after aplayground accident. The child grab­bed hoid of her arm causing aseparation of her shoulder girdle.There was soft tissue injury but noevidence of a fracture. She wastreated conservatively by an or­thopaedic surgeon. Despite his ex­pectations that her recovery would beuncomplicated, she had persistingpain and limitation of movement of hershoulder. These disabilities persisteddespite intensified treatment with in­tra-articular corticosteroid, physiother­apy, muscle relaxants, and reassur­ance. She grew increasi n9 ly de­pressed and pessimistic about herchances of ever recovering. Her at­tending physician recommended psy­chiatric care after screening psycholo­gical testing (with a Minnesota Multi­phasic Personality Inventory) demon­strated the presence of significantemotional adjustment diffiCUltycharacterized by depression with irri­tability. suspiciousness, and mUltiplesomatic complaints. The patient re­fused to see a psychiatrist, stating thatshe "had plenty of reason to be de­pressed because of her injUry". Herfamily initially supported her resis­tance to treatment; however, as her

continued on page 44

•Case histories presented In this paperare composite summaries with minorchanges and combinations to preventpatient identification. MMPI profiles inAppendiX I.

April 1976/Arkansas Lawyer/43

POlt Traumatic,continued from page 43

mental condition steadily worsened.they finally urged her to see a psychia­trist. The diagnosis of depressedphase of manicdepressive diseasewas made by the psychiatrist. Psy­chological testing performed earlierwas compatible with this diagnosis.The patient was treated with antide­pressant medication and supportivepsychotherapy with progressive im­provement over the next severalweeks. Concurrent with her lesseneddepression, her physical conditiongradually improved, and she returnedto work.

The above case is an example fromGroup II. Additional examples of patientsin this classification include patientswith neuroses, psychoses, addictions,and certain personality and characterdisorders.

GROUP III PATIENTS:THE ROLE Of UNCONSCIOUS

CONVERSION REACTIONSAS ETlOL091C FACTORS

Guze (1975), a leading authority onconversion symptoms, defines them asunexplained symptoms suggestive ofneurologic disease. This definition ispurely descriptive and carries noetiologic or pathogenetic implications.Guze feels that pain symptoms, such asbackache, should be excluded.

The literature on post-traumaticpsychiatric disability states also usespsychoanolytic theory (Yochelson,1966). Allhough it must be kept in mindthat the psychoanalytic framework isonly theoretical and not factual, Its com­ponents do offer mechanisms forevaluating, understanding, and treatingthese conditions.

In psychoanaiytic theory, the processof conversion is felt to be an un­conecioul defense mechanism in whichphysical symptoms are experiencedwhen persons with a vulnerable per­sonality makeup are confronted with

44/Arkansas Lawyer/April 1976

stressful anxieties. These symptomswere originally considered to be defen­ses against wishes which werepsychoiogically threatening or unac­ceptable to the individual (Engel, 1970).The symptom itself may serve to resolvean underlying psychological contiict. Tothe degree that this succeeds. thepatient's anxiety will in turn be reduced.This reduced anxiety level, an in­trapsychic process, is called "primarygain".

In addition to reducing anxiety, con­version symptoms may also have a"secondary gain" (e.g., weakness of theleg may prevent the patient from havingto go to work and face a supervisor whohas been putting pressure on him). Asthe process of secondary gain is also anunconscious mechanism, the reaction ofthe patient will usually show noawareness that such could be the case.In fact, they usually complain bitterlyabout their symptoms (the "disability").Nonetheless, these symptoms serve un­conscious needs and remove the patientfrom situations which are potentiallythreatening or conflictual. It is of notethat in the industrially-injured patient, thesecondary gain may be financial reward.The injured patient, particularly ifbasically insecure and self-concerned,is immediately stressed with anxietythrough the fear of prolonged disabilityand the gloomy prospect of unem­ployment (particularly if the patient ispoorly educated and must depend uponhis physical strength and intactness toearn a living). The persistence of thesymptom diminishes both the need toface these possibilities and justifies theneed to receive compensation.

The patient's unconecioul need forand dependence upon the symptom maybe accentuated by the reaction of others.In an attempt to nurse the wage-earnerback to heaith, the family may cater tothe patient's needs more attentively thanthey have ever done when he was well.This attention unconsciously serves toreinforce symptoms as psychologicaldependency needs are being met. Thefamily may also have an unconsciousneed to have the patient dependent uponthem. Such conditions perpetuate avicious cycle of increasing dependencyupon the existence and perpetuation ofthe symptom.

The professionals involved in thepatient's care may also unconsciouslycontribute to the perpetuation of thesymptom. The current system of reim­bursement for medical care by the Work­man's Compensation insurance carrieroften necessitates that the patient"remain sick enough to obtain care".It is possible that unconsciousmechanisms on the part of the physiciancould operate to justify the need forrecommending further care. Likewise.

the attorney may reap financial benefitsonly if their client is sick enough toreceive a disability award. This may un·conecloualy lead to promoting negativeaspects of the case. The insurance ad­juster or employer may also negativelycomplicate the recovery by suggestingthat the patient Is not disabled. Such ac­cusations lead to increased resentment,tension, and suspiciousness; emotionalstates which serve only to perpetuateand intensify the unconeclou., anxiety­driven defense mechanisms with in­creased symRtom formation anddisability.

In general, a conversion phenomenonhas the following characteristics(DeJong, 1965):

1. There is absence of objectiveevidence (physical examination, X-rayfindings, diagnostic tests, etc.) to sub­stantiate the patient's subjectivesymptoms.

2. Presence of personality features ofpsychiatric illnesses which predis­poses to the development of conver­sion symptoms.

3. Evidence that the patient's com­plaints had begun in association withstressful conditions.

Conversion symptoms are most likelyto occur In patients with conversionneurosis (hysteria) and antisocial per­sonality; however, they may occur in avariety of other psychiatric conditions,(Guze, Woodruff, Clayton, 1971).

Case Example: A.A., a 28 year oldblack female, mother of six children,was admitted to the hospital afterdeveloping loss of vision after havingaccidental exposure to an aerosolspray used as a plastic sealant. Whenthe nozzle on the container becamefrozen in the open position, shepanicked, hyperventilated, and faint­ed. She was revived by the plant nursebut claimed that she was unable tosee. Examination by an opthalmolo­gist and neurologist failed to identifyevidence of organic pathology. Hersight gradually improved but neversubjectively returned to its premorbidlevel.

The patient had a past history ofchronic, complicated medical com­plaints involving virtually every organsystem. Prominent among these com­plaints had been gynecologicproblems, headaches, "blackoutspells", and gastro-intestinal dif­ficulties. She had had repeated briefhospitalizations to evaluate her com­plaints, but no organic pathology hadever been Identified. She had had alongstanding stormy marriage and her

relationship with her in-laws was oftenopenly hostile.

The patient had a less thanadequate war!< history. She often waslaid off because of absenteesim. Shecomplained frequently of her poorhealth; griped because her husband, apatrolman, did not make enoughmoney to support their large family;and, continually felt unable to keep upwith her household chores when shedid war!<.

Shortly before her accident, A.A.'sthirteen year old son was arrested forstealing a bicycle. His defense led to aburden on their already strained finan­ces as well as created an emotionalstrain. The trial situation was suf­ficiently stressful that, although herson was eventually found not guilty,she developed intense vomiting spellsand had to be admitted to the hospitalfor two days. She recovered and reluc­tantly decided to return to war!< afterthe trial was over to help out withfinances.

The injury occurred several weekslater. After no organic cause for herdecreased vision was found, she wasgiven a Minnesota Multiphasic Per·sonality Inventory which showedevidence for moderate emotional ad·justment difficu Ity characterized byreliance on repression and denial asmajor psychological defenses alongwith mUltiple somatic complaints com·patible with a conversion/psycho­physiologic reaction. Psychiatric con­sultation was then obtained. Adiagnosis of conversion neurosis withhysterical blindness was made. Thepatient was seen in regular psycho­therapy with elucidation of stressfullife factors. Increasing evidences offamily conflicts were identified anddealt with in therapy with resultant im­provement in her visual abilities. Shewas subsequently able to resume em­ploymenl As soon as their financialproblems were reduced 10 tolerablelevels, she and her husband made ajoint decision that she could quitworking. They continued to be seen ininfrequent outpatient counsellingsessions to deal with interpersonalconflicts. She continues to havenumerous somatic complaints fromtime to time, but has had no furtherevidence of visual problems.

GROUP IV PATIENTS:THE ROLE OF

CONSCIOUS MALINGERINGIt is crucial to distinguish malingering,

which is the willful, purposeful, anddeliberate effort to simulate disease orinjury, from the uncounscious process ofconversion (Ber!<ow, 1964), Although theincidence of this action is unknown, it isthought to occur much less frequently

than conversion phenomena (Berkow.1970).

There is no special routine for thephysical, neurologic or mental exam­ination which can definitely diagnosemalingering. It is essential that regularcomplete evaluations be carried out incareful fashion (Keschner, 1949). If or­ganic illness is excluded and the symp­tom is felt to be functional, then the de­cision must be made as to whether ornot the symptom is caused by un­counlCloua processes (conversion) or isconocloully feigned (malingering).

C... ...mple: B.V., a 27 year old,white, male furniture worker was in­jured when a stack of partially milleddesk top panels slid off a dolly andallegedly knocked him to the floor, Hetold his supervisor about the incidentand was sent to the company nurse.He complained of severe back painradiating down the right leg. He wasreferred to the emergency room wherehe was examined by the companyphysician who took X-rays andreferred him to the orthopaedicsurgeon on call. The patient was com­plaining of intense pain. He was un­cooperative with examination proce­dures, alleging that any movement in­tensified the pain. X-rays were normal.It was initially recommended to thepatient that he go home; however, hisfamily emphatically and hostilelystated that they felt that he was hurtingtoo much to be released. In responseto the turmoil, the patient was ad­mitted for observation and additionalstudies. He was managed conser­vatively with traction, analgesics,muscle relaxants, and physiotherapy.The patient was a difficult nursingcare problem, complaining abou't thelevel of care, slowness of respondingto requests for service, and repeatedlydemanded pain medication. Similardemands were made to the doctor,with persisting requests that furthertests be made to "find out exactly whatis wrong", Although this was not doneduring the first hospitalization, thecomplaints persisted and the patientwas readmitted and an exhaustiveevaluation was carried out withnegative organic findings, A Min­nesota Multiphasic Personality In­ventory suggested attempts to presentmultiple somatic complaints alongwith a tendency toward antisocialbehavior.

The psychiatrist was called in forconsultation, The patient reacted quitenegatively stating: "I don't need you.It's the doctor who's crazy!" Theclimate of the referral situation wassuch that the likelihood of any positivetherapeutic interaction was minimal.

Psychiatric interview revealed anearly history of moderate antisocialbehaviors. No current psychodynamicissues were identified. A sodiumamobarbital diagnostic interview wasrecommended for additional historygathering, This was refused by thepatient. The diagnosis of overtmalingering was suspected.

Further suspicion of the patient'smotives was raised after anotherpatient, who had shared a hospitalroom with the patient earlier, told thedoctor that the patient had spokenwith him and other patients inquiring ifthey had had successful Wor!<man'sCompensation awards and about whatsymptoms they had had. Onretrospect, one of the men in the four­bed unit during the patient'shospitalization had had a subduralhematoma develop after an on-the-jObhead injury and had had disablingneurological sequelae occur. Despitethere having been no history of headinjury in the patient. he had sub­sequently began to complain ofheadaches, dizziness. and memoryloss. Neurodiagnostic studies hadbeen perlormed because of these per­sisting complaints and were all nor­mal. At this point, additionalpsychological testing was perlormed,

Psychological evaluation demon­strated average intellectual func·tioning with no discrepancy betweenverbal and non-verbal skills norevidence for language disturbance orvisual perceptual deficit. Along withsignificantly slowed but bilaterallysymmetrical. gross, and fine motorcoordination skills, no evidence forcerebral dysfunction was found.

Unfortunately, the diagnosis ofmalingering could not be proven, but acase for this was made before theWorkman's Compensation Com­mission by the carrier's attorney. Arather minimal award was granted.

It must be stated that there is nodefinite way to make a diagnosis ofmafingering with certainty unless thepatient admits to this behavior. The casefor malingering is, 81 best, based on cir­cumstantial evidence represented by in­consistencies in the patient's illness.Malingering should not be suspected asa primary diagnosis in a patient whoeither has evidence of organic diseaseor who meets the criteria for thediagnosis of a conversion symptom.However, in patients who have an unex­plained symptom but who do not havethe other criteria noted above,malingering could be considered. Itshould be kept in mind in so doing that(1) malingering is considered to occur

continued on page 46

April 1976/Ar!<ansas Lawyer/45

Poat Traumatic,continued from page 45very Infrequently and (2) that patientswith unexplained symptoms veryfrequently have an as yet undiagnosedmedical condition, the nature of whichwill become clear in time (Gatfield andGuze, 1962),

Although cenaln physical diagnostictests have been suggested to identifymalingers (Seaman and Reder, 1963;Berkow, 1970), there is no data to provetheir effectiveness and these should notbe relied upon, In the final analysis,malingering can only be suspected andnot proven unless the patient admits tohis conscious behavior.

PSYCHOLOGICAL TESTINGAS AN AID IN

THE EVALUATION OF THEPOST·TRAUMATIC SYNDROMEUntil recently, little objective evidence

concerning the psychological status ofthese patients has been reported, In thepast ten years, however, a number ofresearch studies have demonstratedpositive findings that allow professionalsto derive a psychological profile for thepatients who have the potential toprolong their recovery after a physicalinjury. Three methods 01 investigationhave been used in these studies: (1)studies of patient groups with andwithout objective physical evidences ofdisability have been compared; (2) com­parisions have been made betweengroups of patients with acute (sixmonths or less duration) injuries versuschronic (greater than six monthsduration) injuries; (3) evaluation ofsurgical candidates with psychologicaltests prior to surgery has been done withthe comparison of psychological testprofiles ot good as opposed to poorsurgical outcomes.

A variety of psychological tests havebeen used in these studies. These testshave in common the ability to attachdiscrete numerical values to personalityand ability characteristics. Mostfrequently, the Minnesota MuitiphasicPersonality Inventory (MMPI) has been

46/Arkansas Lawyer/April 1976

studied, The Minnesota MUltiphasic Per­sonality Inventory (MMPi) is a paper andpencil true-false questionnaire thatrequires approximately one to two hoursto complete. Once test responses areobtained from the patient, four validityscales, ten clinical scales, and a numberof special scales appropriate to theclinical situation presented are derived.The ten clinical scales includeHypochondriasis (Hs), Depression (D),Hysteria (Hy), Psychopathic Deviate(Pd), Masculinity-Feminity (Mf), Paranoia(Pa), Psychasthenia (PI), Schizophrenia(Sc), Hypomania (Ma), and Social In­troversion (Si), The profile pattern ofresponses on these scales is used toprovide a personality description of thepatient.

Research using the MinnesotaMultiphasic Personality Inventory(MMPI) on patients with post­traumatic/psychosomatic injury syn~

dromes consistently has shownclinically significant elevations on threeMMPI scales: HYPochondriasis' (Hsl,Depression (0), and Hysteria (Hs)(Phillips, 1964; Timmermans and Stern­bach 1974; K<l8fl, Wing, and Thompson,1974; and Wiltse, 1975), More im­portantly, one study (Wiltse andRocchio, 1975) has shown that this find­ing held up regardless of the number ofpre-existing objective deficits found onpre-operative medical examinations. Inthat study, the combined scores onHypochondriasis (Hy) and Hysteria (Hs)scales provided the most effective singlepredictor of the symptomatic response tomedical or surgical treatment. Theprobability of a positive response totreatment decreases as combined scaleelevations rise. Therefore, the MinnesotaMultiphasic Personality Inventory is avaluable laboratory adjunct to thephysician's pre-operative clinicalopinion regarding the psychologicalcomponents of the patient's symptoms.

The Minnesota Multiphasic Per­sonality Inventory does have inherentlimitations, however, that restrict itsfunctional utility. The patient must havefifth grade or above reading proficiency.and dull normal or above intellectualfunctioning. It has select clinicalweaknesses as well. For example. it can­not say if psychiatric components aresolely responsible for presentingphysical complaints. The test cannotprecisely identify specific psychogenicfactors that may be responsible for orcomplicate a particular case. To answerthese questions, more detailed per­sonality evaluation with traditional in­dividual psychological tests is required·.

Traditional psychological evaluationincludes assessment of psychometric in­telligence, projective personality testsand on occasion the use of tests sen­sitive to cerebral dysfunction. The

classic example of the use ofpsychological tests to assist in iden~

tifying underlying psychongenic factorscomplicating the course of recoveryfrom injury was reported in a casehistory (Bernstein, 1966), In this in­stance, a patient presented with sever in­capacitating depression. His past historyincluded surgical intervention for a lum­bar spine injury suffered years earlierwhile he was employed as a truck driver.Four months prior to presentation fortreatment, the patient sustained a minoraggravation of his old injury in a secondaccident. The patient subsequentlymissed several work days. Finally, in or­der to accomodate the employee, thecompany transferred him to a desk jobthat required major increases in respon­sibility, Psychological testing revealedthat, in addition to a basic obsessive­compulsive personality structure, thepatient scored in the borderline mentallyretarded range on tests of psychometricintelligence. The testing also demon­strated the severe depression. Thepatient was treated with electroshocktherapy for his depression and sub­sequently was returned to work with therecommendation that he be returned tohis former position as a driver. At follow­up, the patient was working effectivelywith no recurrence of symptoms.

Malingering presents a particular dif­ficulty on psychological, as well aspSYChiatric, evaluation. As mentionedabove, the diagnosis of this conditiondepends highly on "good detectivework" (Berkow, 1970), Inconsistencies inpsychological test performance that gobeyond the bounds of explainablephysical deficits are thought to be help­ful in this regard. Personality charac­teristics and validity scale profiles areclinically also feit to be of someassistance in providing clues that pointto a diagnosis of malingering. As themalingering patient often exhibits otherantisocial traits, we feel that the patientwho is malingering with physical com­plaints will probably have an abnormalelevation on the Psychopathic Deviate(Pd) scale of the Minnesota MultiphasicPersonality Inventory along with a clearattempt to fake psychoiogical well-being(elevated K and L scales), Unfortunately,no published studies support these con­tentions.

We also, in a few clinical instances,have adapted the use of the Haisted­Reitan Neuropsychological test batteryfor purposes of the evaluation of patientswho were suspected of exhibitingmalingering behavior. This batteryappears to have potential use in thisarea by virtue of the fact that during a sixto eight hour examination, ap­proximately one hundred and twenty dif­ferent measures of cognitive. in­tellectual. motor, and sensory function

are obtained in addition to the StandardMinnesota Multiphasic Personality In­ventory. This test battery therefore givesa wide variety of test situations whichare complex and the purpose of whichcannot be identified by evensophisticated patients, and, as suchshould maximize the pattern of test in­consistencies. Furthermore, various sub­tests that superficially appear to be com­pletely distinct sample similar skills.This enhances the pattern of disparateresults expected in a malingeringpatient.

A clinical example of the potential, butlimited, usefulness of this battery indetecting malingering follows:

"CaM example: D.O., a 29 year oldfemale, was referred for completeneuropsychological evaluation aftersustaining an on-the-job head injurythat involved a brief period of un~

consciousness. She had beenevaluated previously with completeneurodiagnostic procedures inclUdingskull X-rays, brain scan, elec~

troencephalogram (EEG), andcerebral arteriograms as she haddeveloped periods of confusion,weakness of the arms and hands, andbizarre epileptiform seizures a fewdays subsequent to the injury.Psychometric intelligence testingplaced her in the dull normal range ofintellectual functioning. There was noevidence of cerebral dysfunction ontests in the Halsted-Reitan battery, buta confusing, inconsistent pattern ofmotor test performance was obtained.In addition, the Minnesota MultiphasicPersonality Inventory showed apredisposition to somatic complaints(elevated Hy scale) and an antisocialpersonality orientation (elevated Pdscale). The differential diagnosis wasbetween malingering or a conversionreaction. Based on the abnormal, in­consistent psychological test results,it was decided to try to evoke

malingering behavior. The next day,the patient was scheduled for a repeatelectroencephalogram. Prior to theexam, the patient was deliberatelyallowed to overhear the chiefneurology resident inform a youngmedical student that the patient's"seizures" could be triggered by sud­den sharp noise. As the elec­troencephalogram was being per­formed, the resident purposelydropped a large book to the floor. Im­mediately, the patient went intoseizure-like activity with no correlatedelectroencephalographic changes.The patient was confronted with herbehavior, the seizures subsequentlyceased, and compensation claimswere dropped.

In summary, the use of psychologicaltesting as an integral part of the totalwOrk-up of the patient with a post­traumatic disability syndrome includesfive basic functions: (1) screening iden­tification of emotional adjustment dif­ficulty and the potential for the develop­ment of non-organically based physicalsymptoms; (2) evaluation of the level ofintellectual function and potential; (3)evaluation of potential psychodynamicissues that may be contributing to orproducing symptoms; (4) documentationof behavioral deficits that have beenshown consistently to be associated withneurological deficit; and, (5) in clinicallyindicated instances, to provide a com­prehensive series of behavioral ob­servations to document inconsistent per­formances which would be compatiblewith, but not diagnostic of, overtlyfeigned symptoms.

OVERALLEVALUATION PROCEDURE

The Ideal psychiatric and psycholo­gical evaluation of a patient with post­traumatic disability states should in­clude:

A.Psychlatrlc diagnostic Interview:Careful attention should be paid toevaluating (1) the premorbid psychia­tric status; (2) reaction to stressful pastevents; (3) details of and reaction toaccidental injury; (4) elucidation ofstresses and conflicts in life before, atthe time of, and after the accident; (5)attitudes towards professionals andemployer; and (6) psychiatric statussince the accident with careful atten­tion being paid to exclude the overuseof pain medications or alcohol.

B.Soclal hillory: This evaluation shouldinclude (1) the family members' reac­tions to the injury; (2) patterns of inter­action between patient and his familybefore and after the injury; (3) familymembers' estimates of his level ofdisability and symptoms; (4) recordingof the level of function around thehome since off work; (5) family mem­bers' history of the patient's medica­tion usage; and, (6) past occupationalhistory.

C. Poychologlcaltestlng: This examina­tion should include (1) detailedevaluation of psychometric intellectualfunction with individually administeredintelligence tests; (2) evaluation of thepersonality structure of the patientwith both objective and projectivetests; (3) meticulous attempts to un­cover underlying psychodynamic rea­sons for presenting symptoms as re­flected in test responses; and, (4) inpatients with suspected cerebral dam­age. detailed evaluation of not only in­telligence, but also cognitive problem­solving skills, language function. andmotor and sensory performance levelsmust be included. A list of tests whichwould provide this complete evalua­tion would include the Wechsler AdultIntelligence Scale; Bender-GestaltTest; Minnesota Multiphasic Per-

continued on page 50

'" * This case was seen while one of theauthors (REH) was In a postdoctoralfellowship training program.

Dr. Max Alden Bakar, M.D., was Resident In Psychiatry, Barnes Hospltel andWashington School of Medicine, St. LDuls during 1957-70. He Is licensed In MissourI,Maryland and Arkansas. In 1972, he recalvad his Diplomate In PsychIatry from theAmarlcan Board of Psychiatry and Nauro/ogy. Since 1974, he has served as theChief, Psychiatric Section, St. Edward Marcy Hospital, Fort SmIth. Ha has numerouspublication credits, and Is a membar of many professional organizatIons.

Cooperating with Dr. Baker In the article were Doctor Joe H. Dorzab, DoctorDonald S. Chambers and Doctor Ronald E. Hulsman - all associates at the FortSmith Psychlatar/c Clinic.

April 1976/Arkansas Lawyer/47

? l F • H. o

APPENDIX

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48/Arkansas Lawyer/April 1976

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PATIENT B.V.: GROUP IVMalingering Profile

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April 1976/Ar1<ansas Lawyer/49

Raglalratlona will be accepled al door

April 9-10, 1976

call 617-868-6900 lorreservations or further Information

a 2-day Seminar-Workshopin current trial procedure

Keschner, M.: Simulation (Malingering)In Relation to Injuries of the Skull,Brain, and Spinal Cord. Injurle. of theSkUll, Brain, and Spln.' Cord, 3rd Ed.S. Brock (ed.), Baltimore, Williamsand Wilkins, 1949.

Kokan, P. J., Wing, P. C., Thompson,W. J.: Factors associated with failureof lumbar spine fusion. The CanadianJournal 01 Surgery, 17:294, 1974.

Lemakau, P. V., Croce ttl, G. M.:Epidemiology. Comprehensive Teal­book of Paychl.lry. Freedman, A M.and Kaplan, H. I. (eds.), Banlmore,Williams and Wilkins, 1967.

Phillips, E. L.: Some psychologicalcharacteristics associated with ortho­paedic complalnls. Current PracllceIn Orthopaedic Surgery, 2:165, 1964.

Tlmmermans, G., Sternbach, R. A: Fac­tors of human chronic pain: An analy­sis of personality and pain reactionvariables. Science, 184:806, 1974.

Wlnse, L. L.: Psychological testing Inpredicting the success of low backsurgery. Orthopaedic Clinic. of NorthAmerica, 6:317, 1975.

Wlnse, L. L., Rocchio, P. D.: Pre-<Jpera­tlve psychological tests as predictorsof chemonucleolysls In the treatmentof the low-back syndrome. The Jour­nal of Bone and JoIni Surgery,57A:478, 1975.

Yochelson, L.: Psychiatric aspects ofbackache. Currenl Pracllce In Ortho­paedic Surgery. 3:253, 1966. ./.

"

Holiday Inn • Lake HamiltonHot Springs, Arkansas

ASSOCIATION OF TRIAL LAWYERS OF AMERICAAND

THE ARKANSAS TRIAL LAWYERS ASSOCIATIONannounce

"PRESENTING YOUR CASE IN COURr'

BIBLIOGRAPHY

Barkow, R.: Difficult dat/nltlon ofmallngarlng. New England Journal ofMedicine, 263:710, 1970.

Berkow, R.: Psychological Aspects ofBack Pain. Orthopaedic Surgery.Mercer, W. and Duthie, R. B. (eds.),/.Dndon, Edward Arnold Ud., 1964.

Bernstein, J. C. The value of psycholo­gical and psychiatric evaluation In aback Injury. American Journal 01 Or­thopaedics, 8:72, 1966.

DeJong, R.: Case Taking and theNeurologic Examination. ClinicalNeurology, 2nd Ed. A B. Baker (ed.),New York, Hoebar-Harper, 1966.

Engel, G. L: Conversion Symptoms.Signs and Symptoms: AppliedPhysiology and ClInical Inlerprela­lion. MacBryde, C. M. and Backlow,R. S. (eds.), Philadelphia, J. B. Up­pencott Co., 1970.

Gattleld, P. D., Guze, S. B.: Prognosisand differential diagnosis of conver­sion reactions (a followup study).Diseases of lhe Nervous System,23:1, 1962.

Guze, S. B.: The validity and signifi­cance of the clinical symptoms of hys­teria (Brlquel's Syndrome). AmericanJournal of Psychl.try, 132:136, 1975.

Guze, S. B., Woodruff, R. A, Clayton,P. J.: A study of conversion symptomsIn outpatients. American Journal ofP.ychlalry, 128:643, 1971.

sonalily Inventory; Rorschach Test;Thematic Apperception Test; and,where indicated for cerebral dysfunc­tion or malingering, the Halsted-Rei­tan Neuropsychological Test Battery.

This paper outlines a practical a!'proach to the evaluation and treatmentof post-traumatic disability states andpresents composite case histories whichillustrate the positive effects of psychia­tric and psychological intervention. Un­fortunately, all too often the evaluationprocedure does not lead to such goodclinical resulls but only adds to the over­all costs of these conditions.

There are no studies which adequatelyanswer four important questions aboutthese states: (1) What percentage of pa­tients are helped by psychiatric care? (2)How can the individual patient who canbe helped be identified? (3) What is thebest way to evaluate and treat the in­dividual patient? (4) When should an in­dividual case be termed a treatmentfailure?

It is our clinical impression that theclassification presented in this paper isof considerable practical usefulness indealing with these patients. Group II pa­tients have, in our opinion, a highchance of obtaining substantial, and of­ten curative. benefit from psychiatriccare and often are totally refractory cas­es without such intervention. Group IIIpatients seem to respond less consis­tently to psychiatric therapy; yet, in in­dividual cases, the results of such carevary from the total lack of change todramatic recoveries. Our personal ex­perience with proven Group IV patientsis minimal. In those patients we suspect­ed of malingering behaviors. our per­sonal experiences have been almosttotally negative so far as helping the pa­tient is concerned.

We believe that the Minnesota Mulli­phasic Personalily Inventory, despite theaforementioned limitations, is an ex­tremely valuable screening diagnosticaid, and believe it should be given to allpatients who have a post-traumatic disa­bility state which is either refractory toconventional therapies or is complicatedby suspected emotional factors. If the re­sults of this test suggest that emotionalor psychiatric factors are operant, psy­chiatric consultation should be obtained.If indicated, additional evaluation shouldthen be performed as outlined above.

SO/Arkansas Lawyer/April 1976

POlt Traumatic,continued from paga 47

THERAPEUTIC EFFICIENCYOF PSYCHIATRIC AND

PSYCHOLOGICAL INTERVENTION

PRESIDENT'S REPORTby Robert C. Compton

Our Mid-Year Meeting was a real success. Almost 400lawyers participated in a close study of our new CriminalCode and Rules of Criminal Procedure. Many thanks tothe panelists and all who made such an exceptionallyfine meeting possible.

Margaret and I journeyed to Philadelphia February 12­15 for the Mid-Year Meeting of the American BarAssociation. I also attended a meeting of the Coordinat­ing Committee of State Bar Presidents and then at­tended the National Conference of State Bar Presidents.

The principal discussion is whether to permit any re­laxation of our canon prohibiting advertising. Our Arkan­sas Bar Association's House of Delegates votedunanimously to oppose any such change. During theConference of Bar Presidents I made known to all listen­ing the position of the Arkansas lawyers in opposition tolawyer advertising because it would not be in the best in­terest of the public, would degrade a great profession by

tending to make it just another trade or business andwould move us closer toward federal regulation.

During the conference, our own Ed Bethune did a finejob as a member of the panel discussing the ABAstandards for the administration of criminal justice.Since we have already met and exceeded these stan­dards, Arkansas was again out in front of most of oursister states.

Truly, when lawyers from all over the U.S. gather to­gether it is a matter of great pride to be an Arkansaslawyer.

Before leaving Philadelphia we, of course, went to In­dependence Hall. Every lawyer must get some specialinspiration while in the presence of the spirit of thosegreat men who in that very place wrote both theDeclaration of Independence and the Constitution of theUnited States of America. ..,,,

April 1976/Arkansas Lawyer/51

ReclamationAnd

Bankruptcy

-ALLEN W. BIRD, II

With the tremendous increase in bank.ruptcies of all types in recent years, mostall attorneys are coming into more con­tact with the bankruptcy court than everhave in the past. A most commonsituation requiring the attention of an at­torney is one where the client is either asecured creditor or an owner of propertyin the possession of the bankrupt at thetime of his adjudication. The most corn­man desire of the client is to have im­mediate possession of property in thejurisdiction of the bankruptcy court.

By the time a debtor reachessuch a financial condition thatbankruptcy is necessary, much ofhis properly is usually the subjectof security interests which leave noequity for the bankruptcy estate.

In this case the creditor, already awarehe may not be made whole, is mostanxious to take possession of the pro­perty, to proceed to liquidation, andprevent deterioration of the value of theproperty. The owner of property in thepossession of the debtor, simply wantshis property. The approach in the pastfor the attorney representing the owneror secured creditor has been a reclama­tion petition; however. a petition in thiscase is no longer appropriate under thenew Rules of Bankruptcy Procedure.SUbmitting a claim to the bankruptcycourt is also usually not the most ad­vantageous route for the attorney totake. A claim is deemed to be consentby the claimant to the liquidation of theproperty by the bankruptcy court, and anagreement by the claimant that all ex­penses and fees may be deducted fromthe funds realized from the sale of theproperty. Although filing a claim is notalways to the detriment of the secured

52/Arkansas Lawyer/April 1976

creditor, a claim should be made onlywith full knowledge of its effect. Manytimes a trustee can liquidate the propertyfor a better price and more quickly thana secured creditor. The creditor mayrealize more after the expenses arededucted than he could have obtainedotherwise. Also, as will be discussedlater, if the creditor is successful in ob­taining the property, the trustee onlyabandons his interest in the property andleaves the creditor to his rights under hissecurity agreement.

The first approach the attorney for thesecured creditor or the owner of propertyshould take is to contact the receiver ortrustee on an informal basis and requestthat the receiver or trustee petition thecourt for abandonment of the property.The term "receiver" is used to describethe position of the one appointed by thebankrupt prior to the first meeting ofcreditors. The receiver has no authorityto abandon any property since he takesno title to the property under the Bank­ruptcy Act. The receiver is almostalways appointed trustee after the firstmeeting of creditors, and therefore initialcontact with the receiver is not wastedmotion. However, the formal aban­donment by the court must wait until af­ter the first meeting of creditors.

During the first thirty to sixty days afteran adjudication in bankruptcy, thereceiver or trustee is most concernedwith ensuring that he has takenpossession of all property in thepossession of the bankrupt at the time ofadjudication, arranging for insurance.watchmen, caretakers, obtaining bonds,and other administrative requirements.Therefore the informal request of the at­torney representing an owner or securedcreditor will not normally receive im­mediate attention unless the attorney forthe owner or secured creditor provides

the information necessary to convincethe trustee of the client's position.

The secured creditor or owner ofproperty must deal with the trusteeIn order to pursue the property.

The jurisdiction of the bankruptcycourt to deal with the property in thepossession of the debtor at the time ofadjudication is based on merepossession by the bankrupt, andtherefore a state replevin action or otherlitigation outside of the bankruptcy courtis not proper.

In the case of a client who claims tobe the owner of property in thepossession of the trustee. the attorneyshould be prepared to prove to thetrustee the true ownersh ip of theproperty. The attorney must be preparedto produce a clear, legible and certifiedtrue copy of any documentation relatingto the title. Documents such as bills ofsale, deeds. certificates of title andassignments showing title must be ob­tained if applicable. Proof of considera­tion must also be shown, especially ifthe owner claims to have purchasedproperty from the bankrupt. The trusteeIs armed with all of the rights andpowers of a judgment creditor with ajudgment returned unsatisfied. andtherefore the burden is on the owner toshow that the purchase from thebankrupt of the property was valid andwas for fair consideration.

If the property in the possession of thetrustee belongs to the bankrupt but is theSUbject of a security interest, then the at­torney should informaily approach thetrustee with all documentation showinga valid security interest. This would in­clude clear, legible, certified true copiesof the security agreement. if written, and

the financing statement showing thefiling mar1<s of the Secretary of State andappropriate county clerk. Proof of validconsideration must also be shown in theform of canceled checks or receipts, orother documentation showing fair con­sideration for the security interests gran­ted.

It the property in the hands of thetrustee can be sold for more thanenough to payoff the debt to the securedcreditor after the cost of the sale, thenthe trustee will not abandon the propertyto the secured creditor, but will normallyseek permission to sell the property,either subject to or free from the liencreated by the security agreement.Therefore, the value of the property inthe hands of the trustee is anotherquestion which must be considered bythe attorney for the secured creditor. Thesecured creditor is most often in the bestposition to obtain qualified expert ap­praisals of the property in the hands ofthe trustee. The trustee usually is an at­torney and can quickly form an opinionas to the legal status of the securedcreditor; however, it is often difficult toobtain an appraisal of the property im­mediately to determine its value. There­fore, the appraisal of the property shouidbe obtained by the secured creditor andprovided to the trustee, so that he canmake an intelligent decision concerningthe equity in the property for the estate.The appraisal should be obtained fromone qualified to do so, and if possiblefrom one not associated with thecreditor. The trustee should be remindedthat for assets of a value of up to$50,000.00, expenses of at least five per­cent plus auctioneer's fees and other ex­penses of storage, insurance. andprotection should be considered indetermining whether there is any equityin the property for the bankruptcy estate.If the property is sold for an amount in­sufficient to pay the secured creditor andall of the other fees and expenses basedon the safes price, then the bankruptcyestate wiil be depleted by the amount

necessary to pay all of the expenses andfees connected with the sale. The aim ofthe Bankruptcy Act is to achieve speedof liquidation and to realize the most forthe property in the possesson of thebankrupt for the payment of unsecuredclaims. Therefore neither the trustee northe bankruptcy court has any desire toretain possession of property when suchpossession only causes expenses andwill not realize any increase for theestate.

II the trustee does not agree withthe position 01 the attorney 01 thesecured creditor or the owner 01 theproperty, then a lormal procedurein the bankruptcy court must bepursued.

The reclamation petition is no longerappropriate under the Rules ofBankruptcy Procedure. The appropriatemethod of obtaining property from thetrustee is now called an adversaryproceeding under Part VII of the Rules ofBankruptcy Procedure. Part Vii of theRules of Bankruptcy Procedure consistsof Rules 701-782, and the last two digitscorrelate with the numbering of theFederal Rules of Civil Procedure. Ail ofthe rules concerning adversaryproceedings are detailed and specificand must be foilowed closely. Thetrustee, although usually an attorney, isin a vulnerable position as a fiduciary.and an attorney should not automaticallyexpect that a failure to comply with theRules of Bankruptcy Procedure will beforgiven by the trustee as an act ofprofessional courtesy. An adversaryproceeding is necessary and an exparte application by the creditor orowner of property to the bankruptcycourt will not be entertained by the court.

Rule 701 provides in part that Part VIIgoverns any proceeding instituted by aparty before a bankruptcy judge to re­cover property. An adversary proceeding

is commenced by filing a complaint withthe bankruptcy court, not the districtcourt, to be served upon the nameddefendants. Rule 704 provides for theservice of the complaint and a notice oftrial, if applicable. The defendant in theadversary action is the trustee. Thebankrupt has no control over nonexemptassets, and is therefore not a necessaryparty to the proceeding.

The summons of the time in which thecomplaint must be answered. Normally atrial date will be set at the time the sum­mons is issued, unless the plaintiffnotifies the clerk that some discovery orother proceedings must be completedbefore trial may be heid. It the defendantdesires discovery, he may petition thecourt to have the trial date postponed.For the sake of speed, a copy of thecomplaint and all of its attachments maybe forwarded to the trustee at the time itis forwarded to the court to give thetrustee an additional opportunity to con­sider the validity of the position of theplaintiff. Copies of all the documentationwithin the control of the plaintiff shouldbe submitted as attachments to the com­plaint.

The court may, for good cause shown.order that a period of time in which to doan act be shortened under Rule 906 (c).Thus if the plaintiff feels that the twenty­five days allowed under Rule 712 shouldbe shortened for some reason, such asthe deterioration of the value of certainproperty, he may move the court experte to reduce the time in which thedefendant may answer the complaint.Rule 712 further controls the procedurefor replies to counterclaims by thetrustee. The summons issued by thebankruptcy clerk will require thaI the an­swer of the defendant be served uponthe plaintiff's attorney, and all otherpleadings after the original complaintwill <>e served on the opposing party,Rule 705 requires that all papers after theoriginal complaint be filed with thebankruptcy court not later than the

conNnued on page 54

April 1976/Ar1<ansas Lawyer/53

Allen W. Bird, II Is a native of Southern Arkensas. Hereceived his BA from Florida Stete University at Tellehassee,and his JD degree from the University of Arkansas Law Schoolat FayeNevllfe, He earned an LLM at New York University. Hewas on active duty with fhe U,S. Navy from 1968 to 1974, Hemoved to LlNte Rock In 1974 and was a sale practlNoner unfitbecoming an associate with Rose, Nash, Wllflamson, Carroll,Clay & Giroir in sepfember, 1975.

Getting readyfor the next200 years

73,050 days of liberty and law!Think' of 11. Celebrate il. 8U1 resist thetemptation 10 fall back into that specialkind of stupor induced by smugness.There is a high - more dangerous thandrugs or alcohol - that comes fromfantasies of superiority.

73,050 days! We began our journey asa nation," ith a masterpiece - theAmerican CU[I.~tiIUljOI1- to guide us.

We fought nine major wars in chartingour destiny, a destiny lilled with triumphand tragedy. We lOasted freedom but letoursehes be trapped into slavery, Ourtechnology conquered a conlinent. butthe pollUlion it created threatens ourtomorrow.

Now is the lime to be gelting ready forthe next 200 years. To be free is to bealive to what needs to be done. To be freeis 10 be aware that the past has a vote inour lives. not avelO.

73,050 days of liberty and law!LeI us celebrate in wisdom - a strongpeople gelling ready for tomorrow.

54/Arkansas Lawyer/April 1976

Bankruptcy.continued from page 53second business day following serviceon the opposing party. For this reason itis advisabie to send ail pleadings to theopposing party by certified mail, returnreceipt requested. showing date ofreceipt. Rule 906 (e), however, providesthat service or notice by mail is com­plete upon mailing.

If a secured party prevails in hiscomplaint for reclamation, the or­der of the court will provide for anabandonment by the trustee of allinterest in the property.

This act merely returns title of theproperty to the bankrupt and puts thesecured creditor back into the positionhe occupied prior to the bankruptcy. Thesecured creditor must then proceed un­der the Uniform Commerical Code, orthe appropriate foreclosure proceeding,to liquidate the property. In fact thetrustee should insist on returning per­sonal property to the actual possessionof the bankrupt to avoid being chargedwith conversion for returning theproperty to a secured creditor, who mayor may not have first claim on theproperty. Any defense which thebankrupt may have to the rights of thesecu red party may be raised by thetrustee, and the reclamation action in­volving the trustee will not settle thesematters. It is assumed the trustee willhave already considered these mattersand will have either conceded them orthe court will have ruled against him.

The procedure in an adversaryproceeding in Chapter XIII Is thesame as in straight bankruptcy.

Rule 13-701 refers to Part VII of thebankruptcy rules for adversaryproceedings in Chapter XIII. However. ina Chapter XIII proceeding, the questionbefore the court on an adversary com­plaint for reclamation is not whetherthere is any equity in the property to beliquidated, but whether the Chapter XIIIplan provides for full monthly payment tothe secured creditor. or full payment ofthat portion of the monthly rate which isdeemed to be secured by the bankruptcycourt. For an excellent discussion of theprocedure and ramafications of theevaluation of secured property in Chap­ter XIII, see WAGE EARNER REHABILI­TATION, The Arkansas Lawyer, April,1974, p. 75. If the debtor does notpropose to pay to the secured creditorthe full contract rate or the rate to whichthe secured portion of the contract isreduced by the bankruptcy court, thenthe secured creditor will normally prevailand will receive this property. It is not

uncommon for the bankruptcy court todelay a decision on the reclamationpetition until the debtor has an op­portunity to modify his plan, if possible,to provide for the secured contract rate.The court itself may also modify the planto increase payments to a partlcu larcreditor under Rule 13-214, and thereforea payment to a secured creditor may beincreased to provide for what the courthas determined is adequate payment.

A discussion of Rule 13-302 is also ad­visable at this point. It provides thatunless a secured claimant files his claimon or before the first date set for the firstmeeting of creditors, he shall be treatedas unsecured for purposes of voting anddistribution. This is applicable whetheror not the claimant Is listed in thepetition. Thus if no claim is filed by thesecured creditor by the time set by thecourt, the reclaimalion complaint will bedenied since the plaintiff will be con­sidered unsecured.

Following this article, a samplereclamation complaint is repro­duced.

The changes and modificationsnecessary to fit one's particular situationshould be obvious, but the general in­formation provided in the sample is re­presentative of what the attorney for thesecured creditor or owner of propertyshould expect to plead and be able toprove at the hearing on the adversaryproceeding. The more information anddocuments provided in the complaint,the greater the chance that the trusteewill voluntarily agree with the position ofthe plaintiff and will petition the court exparte for the relief prayed for in the com­plaint without trial.

In summary, if all attorneys who findthemselves representing clients inbankruptcy court will make an effort tofamiliarize themselves with the newRules of Bankruptcy Procedure and willbe prepared to provide the necessary in­formation to the trustee, or prove essen·tial facts at a hearing, the proceduresoutlined will work efficiently andsmoothly. The purpose of theBankruptcy Act is speedy, efficient, andinexpensive liquidation of property. Iftrustees are required to dig for in­formation and litigate every pointbecause of an inability to gain essentialenformation, the aim of the Act will befrustrated. As with all other aspects ofthe practice of law, familiarity breeds ef­ficiency. ~

-'-

*(Editor's note: Sample reclamationcomplaint is published on page 55.)

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

IN RE I. M. BROKE, Bankrupt; LR 75-1234B

BIG SALES OF ARKANSAS, INC.. Plaintiff

v.

U. R. ARBITRARY, DEFENDANT

COMPLAINT FOR RECLAMATION

Comes now the plaintiff Big Sales ofArkansas, Inc. by its attorneys Rose,Nash, Williamson, Carroll, Clay andGiroir, and for its complaint forreclamation states:

1. That the plaintiff is a corporationorganized and existing under the laws ofthe State of Arkansas with its principaloffice at Little Rock, Arkansas.

2. That the defendant, U.R. Arbitrary, isthe duly appointed, qualified, and actingTrustee of the estate of the above namebankrupt.

3. That on or about March 21, 1975,I. M. Broke, bankrupt herein, purchasedcertain machinery and equipment fromthe plaintiff for a total purchase price of$20,000.00 of which the bankrupt paidthe planliff $5,000.00, leaving an in­debtedness of $15,000.00. Said machin­ery and equipment is more fully andspecifically described in the securityagreement hereinafter alleged.

4. That a security for the payment ofthe said sum of $15,000.00, the bankrupt.on or about March 21, 1975, made,executed and delivered to the defendanta security agreement and financingstatement, copies of which are attachedhereto and marked Exhibits "A" and "B"respectively.

5. That said security agreement andfinancing statement were filed with thesecretary of State of the State of Arkan­sas on March 22, 1975, and said securityagreement and financing statementwere filed with the Circuit Clerk and Ex­Officio Recorder of Pulaski County,Arkansas, on March 23, 1975. Upon filingwith the Secretary of the State of Arkan­sas, said security agreement and finan­cing statement were assigned the filingnumber 654321, and upon filing the saidsecurity agreement and financingstatement with the Circuit Clerk and Ex­Officio Recorder of Pulaski County,Arkansas, the documents were assignedfiling number 1234.

6. That there is a balance due from thebankrupt on account of the abovedescribed transaction in the amount of$9,246.22 including interest at the rate of9 1/2 percent per annum, said interestaccruing at this time at the daily rate of$2.40.

7. That the machinery and equipmentmore fully and specifically described inthe security agreement attached heretohas a fair market value of $8,000.00 in itspresent condition in the opinion ofRichard Rowe, a person familiar with themachinery and equipment described inthe security agreement and well­qualified to give an opinion as to thevalue of the machinery and equipment.The opinion of Richard Rowe as to thevalue of the machinery and eqipment iscontained in his affidavit attached heretoas Exhibit "C".

B. That the plaintiff is entitled to thepossession of all of the machinery andequipment described in the securityagreement attached hereto as Exhibit"A", which machinery and equipmentare now in the possession of the defen­dant herein.

WHEREFORE, the plaintiff prays thatthis Court will direct the defendantherein to deliver to the plaintiff themachinery and equipment described inthe security agreement and will directthe defendant herein to abandon anyright, title or interest in the machineryand equipment, and enter an order to beconclusive proof of such abandonment,and for such other and further relief asmay be jUst.

Allen W. Bird IIRose, Nash, Williamson, Carroll andClay, P.A.720 W. 3rd St.Little Rock, Arkansas 72201Attorneys for Big Sales ofArkansas, Inc.

lWOHUNDRED

YEARSOF

L1BERlYANDLAW

April 1976/Arkansas Lawyer/55

. . . Norwood Phillips

Workmen's Compensation

The SignificanceOf A

Joint Petition

• • •

The exclusive method of finally con­cluding a workmen's compensationclaim by compromise settlement is pro­vided for in Section 19 (1) of the Work­men's Compensation Act Brooks va. Ar·kansss Best Freight System, Inc.,247Ark 61, 444 SW 2d 246 (1964). Ter­mination of a claim by compromise set­tlement requires not only compliancewith Section 19 (1), but also with Rule 19of the Rules of the Workmen's Compen­sation Commission, as last amended onAugust 1, 1975. The procedure of such a~ttlement is commonly referred to as ajoint petition proceeding.

A joint petition is a valuable tool in theworkshop of a workmen's compensationpractitioner. Like all tools, however, itshould be properly suited for the pur­pose sought. If it is not so suited, its useshould be rejected in favor of a devicemore adapted to the particular situation.

LEGISLATIVE HISTORYAmendment 26 to the Constitution of

the State of Arkansas, giving the Gen­eral Assembly the power to enact work­men's compensation laws, was sub­mitted to the people by initiative petition.It was adopted at the General Electionheld November 8. 1938.

The General Assembly then adopted aworkmen's compensation law by Act 319of the Acts of 1939. Our present law, withcertain amendments, is Initiated Act 4 ofthe Acts of 1949, which replaced the ori­ginal workmen's compensation law.Since the original law, Section 19 (1)providing for final settlements, has"'beenessentially unchanged. Section 19 (1)provides as follows:

"Joint Petition: Upon petition filed bythe employer or carrier and the injuredemployee, requesting that a final settle­ment be had between the parties. theCommission shall hear the petition andtake such testimony and make such in­vestigations as may be necessary todetermine whether a final settlement

56/Arkansas Lawyer/April 1976

should be had. If the Commission de­cides that it is for the best interests forthe claimant that a final award be made,it may order such an award that shall befinal as to the rights of all the parties tosaid petition, and thereafter the Com­mission shall not have jurisdiction overany claim for the same injury or anyresults arising from same. If the Com­mission shall deny the petition, suchdenial shall be without prejUdice to ei­ther party. No appeal shall lie from an or­der or award allowing or denying a jointpetition."

SETTLEMENT CONSIDERATIONSAt the onset it should be recognized

that the usual criteria considered by an'3Idvocate when settling a claim basedupon a common law cause of action isnot totally relevant when consideringsettlement of a workmen's compensa·tion claim. It is submitted that the con­trolling question as to whether a claimbased upon a common law cause of ac­tion should be settled is: Is the settle­ment to my client's best interest? Re­garding settlement of a workmen's com­pensation claim pursuant to Section 19(1), the Commission is charged with theduty of determining that the settlement isfor the best interests of the claimant.Whether a settlement is to the best in­terests of a respondent is totally irrele­vant. Therefore, when an attorney repre­sents a respondent, consideration mustnot only be given to a proposition thatthe settlement is to the respondent'sbest interests, but it also must be es­tablished that the settlement is to theclaimant's best interests. In other words,when representing a respondent an at­torney must be sure that the settlementis completely fair to both parties. ratherthan simply looking to the interest of hisclient alone. Likewise, a claimant's attor­ney encounters certain pitfalls in nego­tiating a joint petition settlement. Whatmay appear to him to be a very benefi-

cial settlement to his client. may not ap­pear to be such to the AdministrativeLaw Judge. This being the situation, aclaimant's attorney must view settlementnegotiations from the posture of not onlysatisfying himself and his client as to thefairness of the settlement. but also as tosatisfying the hearing officer.

COMMISSION'S RULE 19Rule 19 of the Rules of the Com­

mission, last modified on August 1, 1975,provides as follows:

"The Commission discourages theuse of the Joint Petition as a means ofsettling cases except in unusual circum­stances. No Joint Petition will be ap­proved unless such petition sets forththe nature of the unusual circumstancesand unless unusual circumstances areapproved at a hearing. Such Joint Peti­tion must set forth in detail the reasonsits approval will be in the claimant's bestinterest as required by Section 19 (1) ofthe Workmen's Compensation Act.

Joint Petition settlements under Sec­tion 19 (1) of the Workmen's Compensa­tion Act will be heard by an Administra­tive Law JUdge in the county in whichthe accident occurred or at a locationconvenient to the parties. involved.

No Joint Petition will be heard by anAdministrative Law Judge until (5) daysafter the petition or a copy of the petitionhas been filed with the Commission.

It shall be necessary for the claimantto appear and testify at a joint petitionhearing. Petitions shall be signed by allparties, including the claimant. and mustbe verified. Under certain circumstanc­es. the Commission may designate ordirec\ the parties to take claimant's testi­mony by deposition or interrogatories.

In all Joint Petitions where the claim­ant is represented by an attorney, theamount of agreed attorney's fee shall beset out in the petition. No attorney's feeshall be approved if it exceeds the limite-

lions provided for in Section 32 of theAct."

Section 43 (9) empowers the Com­mission to prescribe rules and regula­tions. Pursuant to this rule makingpower, through the years, the Com­mission has promulgated some 23 rules.No rule was in effect regarding JointPetitions from the inception of the work­men's compensation law until 1962when Rule 19 was passed. There are twosignificant differences between Rule 19as it was in 1962 and Rule 19 as it is in1975. In 1962, there was no language inRule 19 discouraging the use of JointPetitions. In addition, in 1962 Rule 19provided that the Full Commissionwould pass on Joint Petitions althoughauthority was given the Commission todesignate a referee to hear the JointPetition. In 1963 Rule 19 was amended toinclude the language that the Com­mission strongly discourages the use ofJoint Petitions. In 1975 the rule wasagain amended by deleting the word"strongly" which had modified the word"discourages". Also, the 1975 amend­ment provided for a hearing on the JointPetition by an Administrative Law Judgerather than the Full Commission. Ano­ther important aspect of the 1975 amend­ment is the requirement that the writtenJoint Petition be filed with the Com­mission at least 5 days before the hear­ing.

Throughout the years it has been thepolicy of the Commission to grant aJoint Petition when it appears that theterms are to a claimant's best interests.Why then, does Rule 19 state that theCommission discourages the use ofJoint Petitions? It is submitted that theCommission does not, in fact, discour­age the use of those Joint Petitionswhich are properly submitted in the pos­ture which the law regarding a final set­tlement contemplates. The only JointPetitions discouraged are those whichare not to a claimant's best interests.This is best emphasized by a look at theJoint Petitions granted by the Com­mission from 1970 to date. In 1970, 905joint petition settlements were approved.In 1971, there were 886 approved whiiein 1972, 921 joint petition settlementswere granted. In 1973, 1,049 were ap­proved and in 1974 an all time high of1,159 joint petition settlements wereallowed by the Commission. ThroughAugust of 1975, 944 joint petition settle­ments had been approved. No statisticsare kept on the number of Joint Petitionsdenied. However, from personal experi­ence, both as a referee and a practition­er, it can safely be stated that at least90% of the Joint Petitions submitted areapproved. This enviable statistic shouldproperly be attributed to the competencyof the workmen's compensation benchand bar. It is, therefore, apparent that the

Commission recognizes and approvesthe proper settlement of a claim. This iscompatible with the common law rulewhich is recognized by the SupremeCourt that the law favors compromisesettlements.

Section 11 of the Act provides for thepayment of unlimited expenses to an in­jured claimant. When finally settling aclaim by Joint Petition of necessity fu­ture medical benefits are thereby ter­minated. Likewise, benefits for addition­al disability benefits, either permanent ortemporary, are terminated, even if theclaimant were subsequently to sustain aremission of his condition. Therefore,careful consideration should be given tothe settlement of the claim before reach­ing an agreement to settle by Joint Peti­tion. Few cases have reached the Arkan­sas Supreme Court in which the finalityof a joint petition settlement was chal­lenged. However, all of the cases are inaccord that once the Commission ap­proves the Joint Petition, after a properhearing and Order of Approval, then theclaim is forever barred.

NECESSARY REQUISITESTO A JOINT PETITION

The essential parts of a completed set­tlement pursuant to Section 19 (1) are asfollows:

1. The drafting and filing of a writteninstrument, designated a Joint Petition,which sets forth the terms of the settle­ment and the unusual circumstanceswhich prompt the settlement;

2. Verification of same by the claim­ant;

3. A hearing on the Joint Petition be­fore an Administrative Law Judge;

4. The Order of the Administrative LawJudge finding that the joint petition set­tlement is to the claimant's best interestand approving and allowing the same.

In framing the Joint Petition, thedraftsman should set forth the nature ofthe injury, with particular emphasis onwhether it is an acknowledged compen­sable injury or whether it is an injurywhich has been disputed or controvertedby the employer. If the injury itself is dis­puted, then obviously there are unusualcircumstances which form the basis fora compromise or settlement. On theother hand, if the injury itself is acknow­ledged or admitted, then the unusual cir­cumstances justifying a joint petitionsettlement is generally based upon adisagreement regarding the extent of theinjured worker's disability. Again, it isstressed that the Commission is chargedby law with finding that the settlement isto the injured claimant's best interestsand consequently the claimant must re­ceive a greater amount of money than hewould receive based solely on the ratingof impairment by his physician. This isessential in cases where the injury is

acknowledged for the reason that if theclaimant were to receive only a sumequal to or less than what he would beentitled to receive anyway, then the set­tlement obviously would not be to hisbest interests.

Regarding the requirement of verifica­tion, it is not necessary that the petitionbe subscribed to and sworn before a no­tary public. As the claimant is going toappear and testify at the joint petitionhearing, it is only necessary that he beasked to identify his signature whiletestifying under oath and to acknow­ledge that he signed the Joint Petitionafter reading same. At the hearing, em­phasis should be given to the fact thatthe unusual circumstances exist andthat the settlement is a compromise of abonafide dispute between the claimantand the respondents. Additionally, theclaimant should aver that he feels thatthe Joint Petition settlement is to his bestinterest and he should request that theAdministrative Law JUdge approve andallow the same.

SUPREME COURT DECISIONSNothing short of the criteria just

enumerated will suffice for the approvalof a Joint Petition and the divesting ofthe Commission of jurisdiction. In thecase of Georgia-Pacific Corporation vs.Norsworthy. 244 Ark 399, 425 SW2d 320(1968), the Commission entered an Or­der based upon a settlement negotiatedbetween the claimant's attorneys andthe respondents' attorneys by way of a

continued on paga 58

Partnar In tha firm of Shackla­ford, Shackleford and Phillips, EIDorado, Arkansas, 1954; JD, Unl­varsity of Arkansas, 1957. Raferee,Arkansas Workmen's Compensa­tion Commission, 1965-1968.Membar, Union County, 13th Judi­cial Circuit, Arkansas and Ameri­can Bar Associations. Chairman,Workmen's Compensation Com­mittee, Arkansas Bar Association,1975

April 1976/Arkansas Lawyer/57

Compenaation,continued from paga 57

series of letters. No formal written docu­ment was presented and no hearing washeld. The Supreme Court affirmed theholdings of the Commission and theAshley Circuit Court that such a settle­ment was not a "final settlement" withinthe meaning of Section 19 (1). Particularemphasis should be given, after agree­ment is made between the parties, toconsummate the settlement pursuant tothe basic requirements of the Section 19(1) and Ruie 19, as just stated.

It appears practically impossibie tohave a judicial determination settingaside an Order approving and allowing aJoint Petition once it has been enteredafter a proper proceeding. In the case ofCook va. Brown, 246 Ark 10, 436 SW2d482, (1969) the claimant, after a joint peti­tion settlement had been approved, fileda petition seeking to void the order of theReferee approving and allowing the jointpetition settlement. The claimant testi­fied that he was "incapable of under­standing the legal ramifications" rele­vant to the Joint Petition and that hethought his claim would remain open.This allegation was made notwithstand­ing contrary statements in the joint peti­tion itself and testimony of the claimantgiven at the hearing. The Commissionheld, and the Pulaski Circuit Court andthe Supreme Court affirmed, that theCommission was without jurisdiction tore-open the claim without an allegationof fraud or insanity.

Shortly thereafter, in 1970, obviouslycognizant of the holding in the case ofCook VI. Brown, supra, a claimant fileda suit in Pulaski Chancery Court alleg­ing fraud in the procurement of a jointpetition order. Johnson VI. Lumber­man'l Reciprocal Insurance Exchangeat ai, 249 Ark 550, 460 SW2d 53 (1970).Specifically, the claimant's allegationsof fraud were that the insurer's claimsadjuster and its examining physicianfalsely and fraudulently represented theclaimant's gack condition to be less ser­ious than it actually was and that the in­surer thereby obtained claimant's con­sent to an inadequate settlement. How­ever, the Supreme Court clarified its dic­tum in the Cook VI. Brown case, supra,and held that the allegations of fraudmade by the claimant were allegationsof "intrinsic" fraud and were insufficientto vest a Chancery Court with jurisdic­tion to set aside the order of the Com­mission approving the Joint Petition. TheSupreme Court reaffirmed its distinctionbetween "extrinsic" fraud and "intrin­sic" fraud. See Alexander YB. Alex­ander, 217 Ark 230, 229 SW2d 234 (1950).Extrinsic fraud occurs when a party iskept away from the trial by his adver­sary's deception or when a party is

58/Arkansas Lawyer/April 1976

corruptly betrayed by his own attorney.On the other hand, intrinsic fraud found­ed on a fraudulent instrument, perjuredtestimony, or any matter actually pre­sented and considered in the judgmentassailed is insufficient to be the basis forsetting aside the jUdgment.

It, therefore, appears that the only mat­ters which could possibly influence aCourt of equity to properly set aside thefinal order of the Commission approvingand allowing the joint petition settlementwould be: 1. Insanity of the claimant;and 2. intrinsic fraud. There seem to beonly two incidences which intrinsic fraudcould occur, i.e., when a party is keptaway from the trial by his adversary's de­ception or when a party is corruptly be­trayed by his own attorney. Obviously,the former criteria would not apply inworkmen's compensation hearings be­cause the claimant must be present totestify at the joint petition hearing beforethe joint petition can be granted. There­fore, the only fraud which would justifythe setting aside of the joint pention or­der would seem to be when a party is be­trayed by his own attorney. Whether anOrder Approving a Joint Petition Settle­ment could be set aside by proof of in­sanity of the claimant or intrinsic fraudpracticed upon him by his own attorneyappear to be the only questions not yetresolved by the Supreme Court.

COLLATERAL RIGHTSAlthough Section 19 (1) provides that

the Workmen's Compensation Com­mission loses all jurisdiction of a claimafter the approval of the joint petition,there are questions involving the rightsof persons not parties to the joint petitionsettlement to pursue additional claimsarising out of the same accidental injury.

The most troublesome area involves awife. For example, if a claimant were tosustain a heart allack while on the job,and a joint petition settlement is nego­tiated as a result of the heart attack,what would happen if the claimant sub­sequently died as a result of the heart at­tack? Does the widow have a claim forbenefits independent of the claim of herhusband? This particular issue has notadjudged by the Supreme Court of Ar­kansas. However, Professor Larsonstates the majority rule of the UnitedStates to be that a widow's claim is notbarred, notwithstanding the fact that herclaimant husband settled his claim priorto his death. The reason is, the depen­dent's right to death benefits is createddirectly by a statute and is not derivativefrom the rights of the deceased em­pioyee. Larson, Workmen'" Compan"a­tlon Law, Section 64.10, Page 11-113.Professor Larson goes on to state thatthe wife herself cannot join in a settle­ment which disposes of her prospectiveright to dependency benefits, since

those rights do not come into full exis­tence until the employee's death. He,however, recognizes that there is author­ity to the contrary. What, then, can thedraftsman do to protect the rights of anemployer when settling by joint petition?Since the Arkansas Supreme Court issilent on this particular issue, one canonly speculate. However, if the wife joinsin the joint petition as a party, is paid asum of money in consideration of waiv­ing any prospective rights which mayaccrue to her as a widow, and testifiesthat she believes such settlement is toher best interests, then it is submittedthat serious consideration by the Su­preme Court woald have to be given tothe proposition that any prospectiveclaim that she may have is extinguished.

In death cases, the parties to a jointpetition are often under a disability ofminority. In such case, to effectively ter­minate their rights, a guardianshipshould be established and authority ofthe Probate Court to enter into the jointpetition settlement obtained. As a claim­ant under a disability cannot effectivelysettle a claim, such a claimant cannotsettle a workmen's compensation claim.Care should be taken to have the guar­dian present at the joint petition hearingto testify as to the particular circum­stances and the beneficial aspects of thejoint petition to his ward.

CONFLICT OF LAWSAnother troublesome area in some

joint petition settlements is the fact thatthe claimant may have a claim in morethan one jurisdiction. For example, I re­cently had occasion to draft a joint peti­tion which involved jurisdictions otherthan in Arkansas. The decedent was aresident of Broken Bow, Oklahoma. Hewas hired by a corporation whose prin­cipal place of business was in Shreve­port, Louisiana, and the contract of hirewas made in Shreveport. He worked outof the truck terminal in DeQueen, Arkan­sas. He sustained an accidental injuryarising out of and in the course of hisemployment which caused his death inTexas. It is readily apparent that therewere at least three states which couldhave assumed jurisdiction of Jhewidow's claim for dependency benefits,and probably four. The widow elected topursue her claim in Arkansas, and a jointpetition settlement was negotiated. Thejoint petition was drafted, employing thelanguage that the widow was aware thatshe had an election of forums, but thatshe chose Arkansas, and by enteringinto the joint petition she stated affir­matively that she waived any workmen'scompensation claim that she might haveunder the laws of the States of Okla­homa, Louisiana, or Texas. In addition, aclause was inserted in the joint petitionwhich provided that were the widow to

pursue a claim in either Oklahoma,Louisiana, or Texas, and were she to re­ceive an award in any of those States,lhen she agreed to indemnify and holdharmless the respondents from anyaward she may receive at any of thoseStates. The Joint Petition Order also re­flected this indemnity agreement.

CONCLUSIONIn 1970, there were 447 hearings on

controverted claims, while at the sametime there were 905 hearings on jointpetitions. Likewise, in 1971, there were886 joint pelitions approved while only

538 cases were heard by AdministrativeLaw Judges. In 1972, the ratio was 921 to567; in 1973, there were 1,049 joint peti­tions compared to 619 controverted cas­es; in 1974, there were 1,159 joint peti­tions approved while only 741 claimswere liligated; through August, 1975,944joint petilions had been approved whileonly 560 claims had gone to a hearing. Itnecessarily follows that under the pre­sent complement of the Workmen'sCompensation Commission it would beimpossible to operate without a proce·dure for disposing of claims by com­promise. The ratio of joint petition settle-

ments as opposed to controvertedclaims is approximately two to one. Inother words, if the procedure for settlingclaims were to be done away with, thenthe loaf of the Administrative Law Judg­es would increase threefold.

A joint petition could properly be re­ferred to as a dilemma to a linguist. It isa noun, "I am filing a joint petition", It isa verb. "I joint petitioned the claim", It isan adjective. "I am going to a joint peti­tion hearing". Above all, however, it isan efficient, integral and necessary partof our workmen's compensation law,

,J-~~

LAW DAY

MAY 1, 1976

U.S.A.

L

It is not difficult during thesetimes to understand the Bicenten­nial Year observance. Our Country'sheritage is freedom. We can relateto 1776 and the events during thelast quarter of that century.

Can we likewise relate to Law DayUSA? What is Law Day U.S.A.? Howdid it come into being? How is it ob­served? Has it been successful inachieving its purposes?

Law Day is set aside on May firsteach year by joint resolution of Con­gress and Presidential proclamationas "a special day of celebration bythe American people in appreciationof their liberties" and as an oc­casion for "rededication to theideals of equality and justice underlaw,"

The annual nationwide event isnot a "lawyers' day", but rather anoccasion for honoring the place oflaw in our lives, for learning how thelaw and our legal system operates,and for examining how the law canbetter serve our people and nation.Law Day was conceived in 1957 byCharles S. Rhyne, a Washington,D.C. lawyer and then president ofthe American Bar Association.

On the occasion of the first obser­vance of Law Day in 1958, PresidentDwight D. Eisenhower stated:

"It is fitting that the Americanpeople should remember with prideand vigilantly guard the great heri­tage of liberty, justice and equalityunder law ... It is our moral and'civic obligation as free men and asAmericans to preserve andstrengthen that great heritage".

Rhyne said: "Today, after 350years, the greatest strength ofAmerica lies in this concept of in­dividual liberty under law. Othersystems of government have pro­duced great scientists, greatmusicians and other outstandingachievements. But no system hasproduced the individual freedomwhich exists in America..."

Our Nation, through its citizens,pauses once each year to reflect onour legal heritage and the role oflaw in an ever changing society. Thetheme selected in recognition ofLaw Day 1976 is: "200 Years OfLiberty and Law".

Law Day 1976, therefore, is a timefor reminding all citizens of theUnited States of the rights they holdunder the U.S. Constitution and Billof Rights which are protected by lawand the courts: free speech, freepress, free assembly, freedom of re­ligion, the right to legal counsel and

a trial by one's peers if accused ofcrime.

It is a day, too, when all thepeople are asked to consider theirindividual duties as responsiblecitizens. Such as: 1) To be informedon issues of government and com­munity affairs, 2) To support and en­courage efforts to update andmodernize our Courts, 3) To vote inelections, 4) To obey, respect anduphold the law, 5) To support thoseinstitutions and persons chargedwith law enforcement, 6) To respectthe rights of others, 7) To practiceand teach the principles of goodcitizenship in their homes, and 8) Toserve on juries and as a court wit­ness if called.

Lawyers, particularly, need to re­late to Law Day. Lawyers need to beinvolved in the observance of LawDay in their communities. They needto sponsor programs in theirschools, churches, and counties.Lawyers are the best qualified tolead the way in the observance ofour Nation's Bicentennial Year andLaw Day U.S.A. 1976. Certainlythese occasions deserve to beAmerica's most widely recognizedand celebrated events of the year.,,- ....

April 1976/Arkansas Lawyer/59

by Barbara Tarkington

Membership Secretary

OYEZ • OYEZ ,,• •

Georgia-Pacific has announced theappointment of L. Philip McClendon asresident counsel for the Crossett Divi­sion. Ray Thornton has been ap­pointed to an ad hoc committee on taxreform that will study the impact of pro­posed tax reforms on farmers. Chief JUl·tice Carleton Harrl. is the chairman ofthe state Board of JUdiciai Apportion­ment and Robert L. Jonel III of Ft. Smithis the newly elected-ai-large member.John R. Cleyton, formerly of Dumas,Jemel M. Mey III, and Kennelh J. Grollhave become associated with a NLR lawfirm and the name changed to Wallace,Hilburn, Ciayton, Wilson and Hankins,Ltd. Kent Foster, formerly GeneralCounsel for the Arkansas Public ServiceCommission, has joined the law firm ofSpilzberg, Mitchell and Hays. The PSChas designated three of its attorneys ashearing examiners: Larry Chisenhall,Michaal O'Mallay and Slephen CuH­man. Kennelh E. Buckner has joined thePine Bluff law firm of Bairn, Bairn &Mullis. Jerry Post and Robert Stroud arepartners with the Murphy and Blair lawfirm of Batesville. Jack A. McNufty hasbeen named a partner with Bridges,Young, Matthews & Davis of Pine Bluff.John F. Forster, Jr., former AssistantU.S. Attorney, has joined the law firm ofBailey, Trimble & Hoit of Little Rock withhis office to be located at EvergreenPlace on N. UnIversIty. The firm opened

6O/Arkansas Lawyer/April 1976

this second office in February and JackHolt, Jr. will divide his time betweeneach office. John M. Belew has joined aBatesville law firm and the namechanged to Harkey, Walmsley andBelew. Van Thomas Younes is now inpractice with the law firm of Adams andCovington of Harrison. Van A. Gearhart,formerly of Fayetteville, has j<>ined thelaw firm of Poynter and Osmon of Moun­tain Home. Mark Grobmyer has becomeassociated with the law firm of Moses,McClellan, Arnold, Owen & McDermott.Richard B. Berry, a 1975 graduate, hasopened a law office at 104 N. Cherry,Beebe. H. Clay Moore and William C.Rea have formed the law firm of Moore &Rea and have associated with them Mar­lin J, Nevrla. Charles A. Hadden has be­come Vice President & Trust Officer ofThe First National Bank in Little Rock.William S. Orr III has been named aTrust Officer of The First National Bankin Littie Rock. Since Joe Barrell (Barry)Deacon passed the bar exam in 1975, wenow have three generations of attorneysin the law firm of Barrett, Wheatley.Smith & Deacon. Frad Embry Pickell,Ashdown, has been selected Admini­strative Law Judge by the Bureau ofHearings and Appeals for the Sociaisecurity Administration to be located inShreveport. Slark Ligon, Jr., Little Rock,has been appointed YLS MembershipChairman for Arkansas. Ed McCorklahas been installed as President of theArkadelphia Chamber of Commerce. Eu­gene Coffelt, Bentonville, has receivedthe Boss of the Year Award from theBenton County Legal Secretary Associa­tion. Allyn C. Talum, Batesville, hasbeen elected as a member of the Boardof Directors of Region VI of the NationalCouncil of Community Mentai HealthCenters. Robert A. Letlar has receivedthe annual Best Book Award made byScribes at its August 1975 meeting inMontreal. Ralph Brodie, Little Rock, hasbeen named Executive Director of thenew state tax revision commission withHugh L. Brown and John H. Peleroon,Little Rock, as assistant directors. Ben F.Arnold, Little Rock, has been eiected tothe Board of Directors of Union National

Bank. B. Richard Allan, Newport, hasbeen appointed Deputy Prosecuting At­torney for Jackson County and hasmoved his office to the Erwin Bldg., 110Main Street. The law partnership of SamBoyce and Mex Bowie of Newport wasdissolved January 1. Sem Boyce willcontinue his law practice at the same lo­cation, 110 Main Street. Max Bowla hasformed a law partnership with Gereld W.Caryle and Harold S. Erwin located at110 Hazel Street, Newport. Roy Thomalhas been selected to replace John Pur­lla, who resigned as City Attorney atBatesville. Bill Cllnlon, Fayetteville, ad­dressed the St. Francis County BarAssociation during its February meeting.The American College of Probate Coun­sel has announced 17 Arkansas lawyersinto its membership: H. W. McMillan,John Mac Smith, William S. Mllchell,Thomas E. Sparks, Jamea B. Sharp,Emon A. Mahony, Owen C. Pearce,D. L. McRee, Leonard L. ScOIl, JamesL. Shever, Jr., WIlliam Ball, Richard L.Martin, David Solomon, John D. Eld­ridge, John F. Siroud, Jr.. J. GaslonWllliemoon and Nabora Shew. L. GrayDellinger, Melbourne, was an instructorfor adult classes sponsored by the Agri­culture and Home Ec Department ofEvening Shade. Appointed Secretary ofState George Jernigan was a speaker atthe Greene-Clay Counties Bar Associa­tion November meeting. Ooug Rlchnowpresented a program to the TexarkanaBar Association about Texas Legal Pro­tection Plan, Inc. Charlas A. Bankl,Blytheville, was a speaker at a meetingof the Osceola Lions Club held in De­cember. Sam H. Boyce, James A. Mc­Larty, David Hodges, and Marvin Thax­Ion conducted one of two panels at the42nd annual meeting of the White RiverProduction Credit Association held dur­ing January at the Newport High School.WIlliam Brldgforth, Pine Bluff. par­ticipated at a forum on the "New RuralSociety" held in December and co-spon­sored by the U of A Dept. of History andPolitical Science in Pine Bluff and theArkansas Humanities program. A Frank­lin County Bar Association has been or-

contlnu&d on page 61

unE.IEAR

April t976/Arkansas Lawyer/51

by circulation of questionnaires tothe members of the bar. The com­mittee will study various means ofaccomplishing the poll and makespecific suggestions to the House ofDelegates.

The House of Delegates met atthe Camelot in Little Rock on Janu­ary 22,1976, as part of the midwintermeeting.

The House heard the annualSecretary-Treasurer's report whichreflected an increase in members'equity of $8,761.33 with total mem­bers' equity of $77,349.15. TheAssociation is in excellent financialcondition thanks in large part to theefforts and abilities of Col. Ransickin managing our fiscal affairs. Thecurrent reports from the bookkeeperindicate the association will operatethis fiscal year within its income.The Association membership re­mains at a record high of 2,037 as ofDecember 1, 1975, compared with1,895 on December 1, 1974. :J-_

tion elected new officers: John C.Gregg, Pres., H. Da.ld Blair, V.-Pres.,and Bernice McSpadden, Sec.-Treas.William Green is the new President ofthe Garland County Bar Association withRichard MUM, V.-Pres.; and Don Pullen,Sec.-Treas. Robert JOMph Brown, for­merly Executive Vice President of BlockMortgage Company. has opened his lawoffice at 807 West Third St., Little Rock.Jay Dickey, Jr., Pine Bluff, was a guestspeaker at the Batesville First BaptistChurch observing Baptist Men's Dayheld in January. The law firm of Maz­zanti, Schmidt and Jenkins have movedtheir office to No. One Spring Bidg., lit­tle Rock. !J-....

tising in the media with certainlimitations. The Council authorizedPresident Compton to make astatement of general opposition tothe concept of advertising forlawyers.

Col. Ransick reported on thestatus of prepaid legal services. TheArkansas Supreme Court has adopt­ed the "Chicago Amendments" tothe Code of Professional Responsi­bility which was the first require­ment for participation in a plan. Asuit has been filed in PulaskiChancery Court by the State In­surance Commissioner against cer­tain organizations seeking an in­junction against offering the plan.This suit is still pending. No legisla­tion was passed in the currentlegislature session which affects thestatus of the plan.

Winslow Drummond was appoint­ed Chairman of a committee whosepurpose is to suggest a program forevaluation of judicial performance

by James M. Moody

Secretary-Treasu rer

EXECUTIVE COUNCIL NOTES

The Executive Council held aregular scheduled meeting in LittleRock on December 13, 1975, to dis­cuss a variety of subjects.

Jim Harper of Rather, Beyer &Harper, insurance agents, reportedto the Council that Commercial In­surance Company was replacingCNA as the major medical in­su ranee carrier for the Association.Only two changes were made in thepolicy, including a limit on thesurgery schedule and payment formental disorder only for treatment ina hospital.

The Rather, Beyer & HarperAgency was gratefully recognizedfor its $1,000 donation to the Arkan­sas Bar Foundation.

President Compton reported tothe Council on his attendance at ameeting of state bar presidents inChicago concerning the status ofadvertising for lawyers. A discussiondraft was presented at the meetingwhich proposed permitting adver-

Oyez-oyezllcontinued from page 60

ganized and officers elected: Gregory P.McKen.zJe, Pres.; Joe Ramos, V.-Pres.;Orville C. CUlt, sec.-Treas.; and Ste.eWhite, Librarian. Greg McKenzle,Ozark, has bought the Franklin CountyJail constructed in 1916 for his office.The Southwest Arkansas Bar Associa­tion elected new officers at its Decembermeeting: James H. McKenzie, Pres.; G.William Lavender, V.-Pres., and TalbotFeild, Jr., re-elected Sec.-Treas. VincentFOlter, Jr., Little Rock, was the guestspeaker at the February meeting of theSouthwest Ark. Bar Association meet­ing. Independence County Bar Associa-

Great partnership: Rodgers &Hammersteln••.another great partnership:ARKAnSAS BAR ASSOCIATion &

RATHER BEVER & HARPERNow working together with CNA/ insurance toprovide you with the two most vital forms offundamental protection for every practicingattorney:

• Professional Liability

• Business LiabilityFiduciary coverageSettlement only with consentLegal defense provided

PROfESSionAL LlABILlTV PROGRAm$100,000 per claim/$300,OOO Aggregate

Want more details? Call or writeArkansas Bar Association AdministratorRather, Beyer & HarperThree Hundred Spring BuildingLittle Rock, Arkansas 72201(501) 372-4117

62/Arkansas Lawyer/April 1976

SAFEGUARDING YOURPROFESSIONAL FUTURE

Editor's Comment: AEGISis a feature of the Arkan­sas Bar Association'seducational programconcerning docket con­trol and other areas ofhigh risk experience Inprofessional liability cas­as.

He that nothing questioneth,nothing learneth!

the problem

the result

advice

A man was involved in an automobile accident with a vehicleowned and operated by a city police department. He was killedinstantly in the accident and his family retained an attorney tohandie his estate as well as represent them in their claim againstthe city.

The handling of the estate was somewhat complex and tookconsiderable time. When the attorney got around to filing suitagainst the city, the Statute ot Limitations for Wrongful DeathActions had expired. Although the Statute of Limitations for Per­sonal Injury Claims is five years, in that particular state, theStatute of Limitations for Wrongful Death Actions IS only twoyears. The clients initiated a malpractice claim against theattorney.

Compromise settlement was made. Although the liability on thesuit against the city was questionable, the attorney's malpractocewas clear because of his failure to file the SUit before the Statuteexpired.

When you are not positive that a particular situation is governedby a general Statute of Limitations, be sure you check it. Somespecial Statutes are much shorter than the general Statute.

April 1976/ArI<ansas Lawyer/63

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April 1976/Arl<ansas Lawyer/85

LEGAL ECONOMICSby Fran Shellenberger

A REVIEWHOW TO CREATE-A-SYSTEM FOR THE LAW OFFICE

How would you like to be able toopen a file in your office and findright on top a record of the tasksdone in that file, when the task wasdone and by whom, and know whatthe next step is, who's going to do itand when? How would you like tobe able to see twice the number ofclients you're presently seeing?Wou Id you like to be able to preparea complicated Will in 24 hours?

A new book, How to Create-A­System for the Law Office, pub­Ii$hed by the American Bar Associa­tion Section of Economics of LawPractice, teaches the lawyer how toorganize his practice so that he cando just that.

Editor-in-Chief Roberta Ramo, aNew Mexico solo practitioner, and ateam of six lawyers, all experts inthe field of law office economics, in­troduce systems analysis as an ap­proach to organizing the substan­tive part of your law practice. This isnot another law office managementbook, it's a law practice manage­ment book. Nor is it a book to beread; it is a book to be used, a work­book to use while organizing thesubstance of your work, that whichyou do for your client, your boss oryour company and for which yousend a bill or receive a salary.

"Create-A-5ystem" is written inthree parts. Part One introduces sys­tems analysis as an approach to or­ganizing the substantive areas ofyour practice. Part two is the work­book; it contains a mini-system anda maxi-system packet which you willuse to prepare your systems for youroffice. Part three deals with the useof automatic typewriters in the sys­tems approach.

I know you're wondering whatsystems analysis has to do with the

66/Arkansas Lawyer/April 1976

practice of law. Systems analysisdoes for the lawyer what it does forthe astronaut - systems tell youwhat to do, when to do it, who is go­ing to do it, what tools (equipment,forms. information) you need to doit, where it goes when it's done, re­cords the fact that it's done, tellsyou what to do next, and records thetime it took you to do it. Just as thespace program utilizes all those rec­ords and data to justify their budget,the lawyer's systems allow him tosend a bill so completely itemizedthat his client hurries to pay it. Assystems keep the spaceship in orbitwhile the astronaut sleeps, your sys­tems keep humming while you're onvacation with your family. Systemsgive you control over your practiceand make it manageable.

You already have mini and maxisystems in your office - they'rethere in all of the ways you and yourstaff get the job done now for yourclients. The forms, filing instruc­tions, revenue stamps, and letters tothe clerk and to your client that youuse now in the preparation of deedsare an example of one of your mini­systems. Those comprehensiveareas of your practice, probate andincorporation for instance, areexamples of maxi-systems. The miniand maxi packets allow you to com­bine your forms and your splendidlanguage to achieve a system whichis going to work in your office andwith which you ana your staff will befamiliar. That same system will bethere when one of the three M's(moving, marriage, and maternity)strikes your secretary. You won'thave to tell your new secretary to"do it the same way Susie did" be­cause Susie's methods will be rightthere in your system for your new

secretary to follow.If you decide that there are sever­

al areas of your practice that itwou Id be profitable for you r to or­ganize, you can order more of thesepackets separately from the Ameri­can Bar Association. If I were an at­torney in a general practice, I'd wantseveral of the mini-systems to or­ganize the collections that I handlefor my clients. Every item and trans­action from the time you r clientturns the collection over to you tothe time you remit the dollars youcollected for him, all the letters,forms, pleadings and instructionsfor handling monies received on be­half of your client would be workedinto the mini-systems and I'd createa midi-system for handling collec­tions in my office for my clients.

Don't think that the systems haveto be prepared (I ought to say "pro­grammed", but I don't want to fright­en you) by you alone. Much of it canand will be done by your secretaryand staff. It's a matter of document­ing what they already do for you sothat others can do it in their ab­sence.

You will discover, if you have notalready, that the proper use ofautomatic typewriters along withyour systems is invaluable in boost­ing the productivity of your staff andyour paperwork. If you are alreadyusing automatic typewriters, sectionthree will show you how to auto­mate the production of the paper­work in your office. If you've been"on the fence" about the use ofautomatic typewriters, "Create-A­System" will show you how to usethem in your practice.

Recently, Audrey, (secretary toAnthony Advocate, both of whom

continued on pag9 71

•

In The

SERVICEOf The

REPUBLIC

-Edward H. Levi

It is a privilege to address this group ofleaders of our republic. There is nodoubt that you are that, although youand I may be biased in favor 01 the bar.The shafts directed at our professionthroughout the history of our society ofadvocates and scriveners can be treatedeither as a recognition of leadership or awarning of bias.

Edmund Burke. in describing thereasons for troubles with the colonies,gave some emphasis to the large num­ber of lawyers -"acute, inquisitive, dex­trous, prompt in attack, ready in defense,and full of resource." Later Burke wasless complimentary in describing therole of lawyers in the French revolution,but needless to say he found them noless trouplesome. An anonymousessayist, opposing the adoption of theAmerican Constitution and wickedlysigning himself "A Federalist" when hewas the opposite, complained that"lawyers in particular keep up an in­cessant declamation for its adoption;like greedy grudgeons they long tosatiate their voracious stomachs with the

golden bait." I assume one day aresearch project for your Foundation willlist ali these delightful sayings. It wilimake a big book.

I was surprised when I found in yourprogram that the title of my talk tonightwas "In the Service of the Republic." Ido not recali, although il is possible thatit happened in the rush of doing, that thetitle came from me. Somehow it has apretentiousness to be properly reservedfor law school deans or universitypresidents. I accept the title, since, Ihope it is not presumptuous for me tosay, this is the way you shou Id. seeyourselves, and I am certain you do. Theidea of our republic is that we are all inits service. As members of ourprofession we are all public citizens. Weall take part in the effort to have therepublic service and represent thecitizenry and the common good. Theresponsibility and opportunity are not thesole possession of lawyers. ThePericlean ideal of citizenship-no matterhow impossible for us and for Pericles toachieve-is central to our society. Surely

it is central to our profession. Theresponsibility and opportunity are cer­tainly not reserved for those who happento be in government where under somepopular notions. which I trust are wrong,there may be even some loss of freedomand honor, which are after all essentialingredients for a serving leadership.

The lawyer's service Is frequentlyregarded as in the adversarymodel.

I have been cautioned on several oc­casions during the last year that the of­fice I now hold is supposed to be an ad­versary one. I was told this by somewhen the Department of Justice took theadmittedly unusual step of not only filinga brief in the Supreme Court in defenseof the Federal Elections Commission. formost, although not ali of the provisionsof the Act. but also filing an impartialamicus brief as well. I was told this alsowhen I gave an Attorney General'sopinion. as I am bound by statute to do.

continued on paga 68

April 1976/Arkansas Lawyer/57

Editor's Note: The theme tor LAW DAY U.S.A. 1976 'is "200Years of Leberty & Law". We have considered a number of ad­dresses tor publication in this connection in this issue of TheArkansas Lawyer. This address was given by the HonorableEdward H, Levi, ANorney General of the United States, betorethe American Bar Foundation Fellows on February 14, 1976 atPhiladelphia. Mr, LevI's Insight into role of lawyers in the historyof our Country shouid be of Interest.

Republic,continued from page 67

to the Secretary of Commerce. Theopinion, it was said, need not be takenseriously because. coming from theExecutive Branch, it was necessarilyspecial pleading. The conceptions of thelawyer as agent or representative of theclient or as servant of the rule and pro·casses of the law are, as we well know,not simple. The characterizations do notquite fit because the roles of the lawyerare many. The prosecutor, we are told,may strike hard blows but not foui ones,but this hardly adequately describeseven the prosecutive function. Be that asit may, our entire legal system is some­times described as an adversary one.The paradigm is the trial in which thearguments, the facts, and the methods ofpresentation which will help win are ad­vanced, and those which might help loseare subdued, or subdued to some extent,by both sides. The process is one which,when it works, has the merit of definingthe issues and reaching a decision.

In spite of frequent criticisms, In­cluding those by judges of lawyers saidto be ill-prepared for the task, and otherswho find the process wasteful or not thebest for truth finding, this kind ofproceeding is, I think, much admired inour society. indeed the modern form of apublic debate on policy issues some­times assumes the style ofa moot trial,which apparently is thought to enforcemore discipline, perhaps drama, thanthe exchange of discourses of an olderday. The decline of rhetoric andeloquence somehow has made ttiestructure of a trial more appealingduring the very period when science andits methods of research for its own pur­poses are claimed to go in the oppositedirection. On entering my office, I amgreeted every day by the slightly am­biguous inscription-ambiguous in partsince the words are in a small rotunda,and one can begin the sentence at dif­ferent places-"The United States winsits point whenever justice is done itscitizens in the courts." I am also forcedto take note of the fact that when one

68/Arkansas Lawyer/April 1976

enters the Attorney General's office, onefaces a rather large mural showing"Justice Liberated," but as one leavesone sees a large mural showing "JusticeEnslaved." I wish it were otherwise. Itake it both the mural and the inscriptionare admonitions to give care, quality,and direction to the adversary process.

It is not strange, I suppose, thatthe modern view of our society isthat it is, after all, composed ofconflicting groups and their pro­tagonists.

Our form of government, with itschecks and balances, was created in re­cognition of this and to curtail the powerof factionalism. Roscoe Pound built aview of jurisprudence on the basis of in­terests pressing for recognition. The for­mation of our Constitution and itsdevelopment have recognized not onlythis kind of interest, but the particulardesire for power which govelnmentalroles themselves induce. Nevertheless,our Constitution, with all the wariness itreflects concerning man's nature, camefrom the age of enlightenment with itshope-perhaps faith-in reason. But inour special kind of scientific period,which has tended to avoid the nor­mative-and this creates a specialproblem for law, which, after all, is atleast in part normative-there has beenan inclination (I think this is changing) todescribe everything that goes on,viewing the structure of aHairs in action,in terms of power relationships or auto·matic reactions. It is, of course, possibleto do this since it is one way, although,depending on what power means, an in·complete way, of looking at the world.The position diminishes reason, dis­parages the ideal of the common orpublic good, adds legitimacy to thenotion that law is only one more instru·ment among many to be manipulated.Then, too, the products of our scientificage and their uses add greatly to themeans for effective propaganda and toother techniques for gaining advantage.I suppose it is not strange that our view

of the struggle of self·interests, real orInduced, is somewhat self fUlfilling. Itbuilds easily upon the pragmatic strainamong us with its inherent cynicism,even though the events of the last thirty­five years indicate that one should notcount on cynicism to combat passion.John Austin in his Province ofJurisprudence Determined remarkedthat, "It was never contended or can·ceited by a sound orthodox utilitariaf!,that the lover should kiss his mistresswith an eye to the common wea!." I sup­pose it is one of the tenets of the operat­ors of our manipulative society that thisresult would not be and never has beenbeyond reach.

The events of the last twenty-fiveyears-perhaps longer-culminating inthe governmental crisis of a few yearsago, greatly enhanced the view that nomatter how things may appear, thestruggle for power is what is truly andonly genuine. The fact that there was acrisis might suggest an effective limita­tion upon that struggle as the sole stan·dard and motivation for conduct. It is inany event an oversimplification, but thepoint is that it came to be believed.Today one has to argue that the appear­ance of conflict is not necessarily thewhole story, or even that the absence ofthe appearance does not mean some­thing is being concealed. One exampleis that almost every issue today at theFederal government level is describedas a conflict between the executive andthe legislature. It mayor it may not be.Another example is that the public press,clothed as it properly Is in the mantle ofthe First Amendment, now so frequentlysees itself totally committed to this ad­versary view of life. Since no institutionis as sensitive to criticism as is thepress, I state this example with some tre­pidation, or perhaps assurance that I willbe misunderstood. I do so only because,as I will say later, the responsibilities andpowers of the press and other forms ofcommunication are important and awe­some. The point is not the role of thepress as investigative reporter oressayist, or the constitutional mandate

against its abridgement. It is rather thechoice of the role as adversary ratherthan as critic, because recent history isthought to have made this choicenecessary. Samuel Johnson, as onemight expect. in his dictionary, saidsome unpleasant things about critics. Hedefined a critic as a "snaner or carper"but he also recognized a critic as an"examiner," or as "a judge," or even as"a man apt to find fault:' The adversary,on the other hand, in his dictionary, was"an opponent. an antagonist, an enemy,generally applied to those that have ver­bal or judicial quarrels." "It may some­times imply an open profession of en­mity," he wrote, using as an example thesentence, "A secret enemy is worse thanan open adversary." This conception ofthe role of the press is, I think, a sign ofthese days, although I believe it ischanging.

The laws of the United States, as theyare in action, for reasons well under­stood, have furthered this sense of ad­versariness. A law against discrimina­tion hovers on the edge of becoming alaw for discrimination, not to correct pastwrongs but because society is seen, notas composed of individuals with talentsand rights, but as a series of groupsvying for power. And this has come to beregarded as one of the uses of law, inlitigation and otherwise, without, how­ever, a legislative or constitutional con­frontation of the values which are in­volved. In the Interstices of the law arefound the weapons to fight these battlesof public policy, not just as to dis­crimination but also as to the allocationof resources and the determination ofthe forums for decision. Political theorysometimes argues for the formal re­presentation of interest groups, chosenfor them and exclusively by them' inparliamentary assemblies. We haverejected this Idea of corporate syn­dicalism for legislatures but recreated itfor the law at large and particularly forthe courts. The history of law can bewritten this way, but in the cycle ofhistory, the trend is accentuated in ourtime.

Popular governments are proneto cycles. It Is one of their strengthsas well as their weaknesses.

In the confused days between the endof the Revolutionary War and the Consti­tutional Convention George Washingtonwrote, "We are apt to run from one ex­treme to another." The Constitution wasintended to form a government which re­cognized, moderated, but did not en­tirely do away with this tendency. We arein such a period of cyclical reactiontoday, justifying what we do now as akind of getting even with the events ofprior years. This in itself is another form

of the game of victims and losers. Weare adversaries not only with ourselves,but also with the past.

This seems some distance away fromthe spirit of the Founders of theRepublic, who did not overestimate thenature of man, or minimize the difficul­ties in which they found themselves,who had many disagreements but werethoughtful about their attempts at re­solution. "We have probably had toogood an opinion of human nature informing our confederation," GeorgeWashington wrote. In the midst of theConstitutional Convention, BenjaminFranklin was moved to say, "We indeedseem to feel our own want of politicalwisdom. since we have been runningaround in search of it. We have goneback to ancient history ... ; we haveviewed modern States ... but find noneof their constitutions suitable to our cir­cumstances. Groping as it were in thedark ..." But from this assemblagewhich knew it had a serious task to per­form, and which could write about theproblems with explicitness andeloquence, there came, as CharlesBeard wrote, more than a bundle of com­promises. It was "a mosaic of secondchoices accepted in the interest of unionand the substantial benefits to flow fromunion." It was a convention in whichnecessity and discussion made a dif­ference.

At the time of the Convention and formany years thereafter, as has beennoted, there was a special quality toAmerican law. Because of the method oftraining, or, we might say, non-trainingof lawyers, there was an emphasis ongeneral principles, both of law and ofgovernment, and on the practicalnecessities and the customs which hadbeen developed and were changing.There was the guidance also of a senseof history and a feeling of destiny. I havetaken advantage - and beg your in­dulgence on this point - of this bicen­tennial year to give some impression,quite unnecessary in this group of thethought and words of that period. In acountry which for some reason not clearto me knows SO little history as we do, arecollection of that period represents anopportunity, but we may end up withechoes from that time and the im­pressions of the present, without muchconception of what happened in be­tween, even ten, twenty, or thirty yearsago. We are the captives of, and are onlylearning to master, forms of com­munication which impose upon us akind of existentialism, an immediacywhich does not have the reality of dis­cussion or the wider historical sense.That this should happen in a countrywhich has more formal education widelydistributed than has ever been the caseis not as odd as it sounds. Education

never ends or it dies; it is not easy toachieve, and half education. like halftruths, represents at least the samechallenge today and probably more so,as did the necessity for an educatedcitizenry in the much smaller country offour million people two hundred yearsago.

History, like law and economics, is noteverything. But one may pause to con­sider the oddity of the one-dimensionalcharacter of much present discussion.The abuses of investigatory agenciesover at least the last two decades, whilereal and cause for alarm. are viewed asif they existed outside of time or as ifthey had all occurred today. thusremoving from critical scrutiny the mostimportant factor: namely, the en­vironment in which they took place - anenvironment which, it must be said, hasa habit of reappearing at various in­tervals in the life of the Republic, star­ting, perhaps, with the Alien andSedition Laws of 1789, but really before.One only has to think of Madison's letterto Jefferson in March, 1786, secretlyplanning the constitutional conventionand expressing his concern: "I sawduring the late assembly of the influenceof the desperate circumstances of in­dividuals on their public conduct to ad­monish me of the possibility of finding inthe council of some one of the states fitinstruments of foreign machinations. to

Or think of the problem of secrecy.The Congress of the Articles of Con­federation met in private. It was called a"dark and secret conclave." So did theConstitutional Convention, which re­quired a pledge of confidentiality as toits proceedings. and which, in order toprevent leaks, watched Franklin withparticular care. Jefferson, who was notpresent, complained in a letter toAdam.: '" am sorry they began their de­liberations by so abominable aprecedent as that of tying up the tonguesof their members. Nothing can justifythis example but the innocence of theirintentions, and ignorance of the value ofpublic discussion." But there is at leastsome reason to believe, sunshine lawsto the contrary, that the new Constitutioncould not have been created under anyother circumstances. There are manyother examples of footnotes on subjectsnow current, inclUding the covert actionby France, which perhaps made thisRepublic possible, and the refusal ofWaShington, noted in his diary. to con­sult with the Senate on the "places towhich it would be necessary to send per­sons In the Diplomatic line" because"they have no constitutional right to in­terfere" and "it might be impolitic todraw it into a precedent, to or the better­known example of refusing to providethe House with the backgrou nd papers

continued on paga 70

April 1976/Arkansas Lawyer/69

Republic,continued from page 6IJ

on Jay's treaty with Britain. This is not tosay that history should repeat itsell butrather that it might save us from the sur­prise which dulls reflection. There is nohidden agenda in this discourse.

Rather I seek to emphasize oneattribute 01 the kind 01 govemment,republic, and society it was hopedwe could be.

It was to be a government and societywhich moved by reason. TheRevolutionary War, it was thought, haditself spread among the Americans agreater knowledge of the science ofgovernment. We should not relegate toextinct Fourth of July adresses the brashaffirmation of Joel Barlow. Americanpoet and statesman who later settled nottoo gloriously the matter of payments fortrade on the Barbary Coast, when heproclaimed in 1787 "the present is anage of philosophy and America the em­pire of reason." The Federalist Papersreflect the view that there was a newscience of government. The belief cameat a fortunate time so that it could belater reaffirmed by other examples 01 theprogress made through the miracle ofevolution and the discovery of new prin­ciples. The ability, the willingness, thefrqadom to exchange ideas and todisCuss were extremely important. SoMill wrote in On Liberty: 'When there isa tacit convention that principles are notto be disputed; where the discussion ofthe greatest questions which can oc­cupy humanity is considered to beclosed, we cannol hope to find thatgenerally high scale of mental activitywhich had made some periods 01 historyso remarkable." So Bagehot, the Englisheconomist, applying Darwin's theory ofevoultion. wrote that it was governmentby discussion" which would break thebonds of ages. I don't think we need bereminded of the American dream in thisarea. but rather to take heed of what itrequires.

There is a sense, of course, in which itcannot be fulfilled. Frank Knight, thegreat American ecomomist and, I wouldsay, philosopher, took grim pleasure inpointing out how few real discussionsever took place. The understanding andexchange of ideas, to learn and tochange what one knows - all this is ex­tremely difficult. In a pureist sense ithardly ever happens. Yet the measure ofthe excellence which is reached is ofconcern to all of us, and particularly tothe nation's laws, which are bound to bein considerable part a reflection of thenation's thought and confusion. "Rep­resentative bodies," John Jay wroteWashington. "will ever be faithful copIes

70/Arkansas Lawyer/April 1976

of their originals, and generally exhibit acheckered assemblage of virtue andvice. of abilities and weakness." He waswrong, of course. in his despondent pre­diction. The Constitutional Conventiondid better than that. But over time aworking society, with a broadened elec­torate and a representative government.cannot help but be elevated or de­pressed by the general level ofknowledge and spirit of candor toinquire and to learn and to think and re­think possessed by the many.

The great experiment which theFederalist Papers proclaimed was not SOmuch representative government orchecks and balances within the generalor central government. The Papers re­congized these were borrowed ideas.Even the creation of the Executive,which was the greatest necessity towhich the Constitution responded, wasnot the distinctive contribution. Even Jef­ferson, who was often doubtful about theneed for a strong executive until he be­came president, was urging the im­portance of separating the executrve andlegislative powers. Again Washingtonrecords in his diary the closing interviewbetween the new President and theFrench Minister. The French Minister,according to Washington, said that,"Hitherto he observed that the Govern­ment of this Country had been of so fluc­tuating a nature. no dependence couldbe placed on its proceedings; whichcauses foreign nations to be cautions ofentering into Treaties. etc. with theUnited States. But under the presentGovernment there is a head to look up to_. and power being put into the hands ofits officers, stability will be derived fromits doing." The originality which theFederalist Papers claimed was in the ap­plication of the principle of re­presentation through federalism to makepossible an extended republic of greatterritorial size with a national authorityand many subordinate - that was theword used - governments with theirown legislatures and councils and "theirdue authority and activity."

Writing about the American republicat the turn of the century, Barrett Wen­dell of Harvard described in this ex­tendec republic. "It is a happy legalnotion," he wrote, "honestly believed bymost Americans from the beginning tothis day, that no question can arisewhich the law does not cover," Then hewent on to portray the unprecedentedcomplexity of legislation, each state withits constitution, its legislature, almostevery town subject to a legislative body."This state of affairs has combined withthe somewhat superstitious confidenceof Americans in legal forms to cover theface of the continent with an intricatenetwork of often conflicting statute law,varying in force from Acts of Congress

to resolutions of aldermanic boards." Hethought a hasty glance at the incredibleconfusion of American legislation mightmislead a stranger into a belief "that acountry thus fettered must be virtuallyparalyzed." But the solution, he said, isin the system that. as with the constitu­tions, confides in the courts have beenanimated "by a conviction that their dutyis to keep the machinery of society inworking order. In brief, what has savedAmerica from the benumbing result ofexcessive legis!ation has ... been theswift and luxuriant growth of unwrittenlaw." "If the wording of carelesslydrawn. preposterous or conflictingstatutes can be stretched into practicalconsistency, the Courts may usually bytrusted to stretch it. If statutes prove ut­terly unpracticable. the Courts will com­monly make this fact so clear as toinduce repeal or amendment." The leastdangerous branch was fulfilling the roleof linchpin, bu~ more than that. in thegovernment of the United States.

Considerable progress has beenmade In the last century to clarifythe network 01 law.

Codes, uniform laws and therestatements have helped greatly.Studies coming from the American BarFoundation and from other associationshave provided important backgroundmaterial and recommendations. Thecourse of legislation in some areas hasbeen helped. The growth of administra­tive law and procedures has added tothe intricate pattern. But in matters of im­portant social policy. legislation is mostapt to be incomplete, hortatory, evasiveand irresponsible. The role of the courtshas not diminished. It has beenmagnified. The federal constitution hasbeen treated in part as legislative enact­ment. or in lieu of legislation, and thefederal courts have become themechanism for the federal presence instate and local governments. Theopening up of the courts throughchanges in rules of standing and classactions have enabled the courts to playamuch more active role in the conflictbetween interest groups. That whichcannot be decided in the legislaturemoves to the courts under the rubric ofconstitutional doctrine where the ad­versary proceeding will be fought out,followed, perhaps, by a period of courtmanagement of local institutions. Thesystem no doubt responds to importantneeds and no doubt is a spur toprogress. but it also works a delay aselected officials can wait for the timewhen the blame for action can be placedupon the intruder. When the council ofrevision, which would have included thejudges, was debated in the Con­stitutional Convention, it was argued that

putting the courts in this position wouldlose them the confidence of the people.But the present situation frequentlyplaces a burden much heavier upon thecourts, sometimes acting on the basis oflegislation. sometimes without it.navigating most difficult areas where asociety which must husband its resour­ces and which in fact wants to find a newcharter for human rights has difficultdecisions to make.

The point which must be made, I think,is that behind the courts and behind the

Legsl Economics,continued from page 66

are regular visitors to this column,)used the systems analysis approachto organize the care of the severalplants in Anthony's office. Theplants were the pride of the officeand clients often mentioned how at­tractive they were. Audrey spentabout an hour each week tending tothem, however, and she felt that asystem would allow the firm's after­school clerk to take over their care.

Her analysis showed that therewere five plants in the system, soshe numbered them as follows:

1, Ficus benjamina (weeping laur-el)

2, Totem pole philodendron,3, Boston fern,4, SChefflera (umbrella plant)5, Kentia palm

legislatures are the influential mechan­isms of society which set or distort thedebate. which enlighten. or bya delight in induced or assumed an­tagonism. cheapen every discussion sothat the immediate reaction is nevertroubled by later thought. These areharsh words, too harsh perhaps, but thefreedom our society has given doesplace a responsibility upon the pressand upon the professions. particularlyour profession. to clarify the issues. notin a spirit of antagonists or adversaries- there are forums for that - but so that

She then numbered the varioussteps in their care, as follows:

A, use Sav-a-Plant probe to deter­mine the amount of moisture in theplant

B, water with 32 oz. of waterC, water with 16 oz. of waterD, mist the plant with clear water

sprayE, fertilize the plant with 1/4 cup

acid fertilizer per foot of plantgrowth.

She then included a paragraphoutlining the care for each plant asfollows:

Monday of each week:1 - ABD2 - ACD3 - ACD4 - ACD5 - ABDWednesdays of each week:1 - D2 - D3 - ACD4 - D5 - DTuesday, Thursday and Friday of

each week:3 - DJanuary 15th, April 15th, July 15th,

October 15th1 through 5 - E

Then Audrey allached labels toeach plant, giving its name, numberand system code for plant care. Thesystem is kept in a notebook alongwith the firm's other systems. Week­ly tickler cares are maintained for all

an enlightened public will understandnot the catch words. not the chosen dis­agreements. but the basic issues whichare involved. If one believes in a govern­ment by reason or discussion, the victorycomes when there is understanding. Theproblems we have are not easily solved.but the beginning is made when they areunderstood. This is of course much toask. But it has a great deal to do with therole of our country if it is to continue tobe the best hope in government formankind. :J.

the necessary steps in the system.Audrey has already had to updateher system due to the dem ise of theKentia palm and the fact that 1/4cup fertilizer proved to be too muchfor the totem pole philodendron.

If you have ever said to yourself oryour secretary, "Someday we gollaget organized!" or "There's golla bea beller way to do this!" then youneed this book in your office. IfAudrey can organize the care of theoffice plants, you can organize thesubstantive part of your practice.Systems put a man on the moon andsystems can help lawyers increasetheir productivity and at the sametime enable lawyers to deliverquality legal services to an ever-in­creasing client workload.

How To Create-A-System for theLaw Office will be sold at the Junemeeting of the Arkansas Bar Asso­ciation in Hot Springs, according toFines Batchelor, Jr., Chairman ofthe Legal Economics Commillee ofthe Arkansas Bar Association. If youcan't wait until then, it is availablefrom the American Bar Association,Section of Economics of Law Prac­tice, 1155 East 60th St., Chicago, IL60637, at $19.95, including acasselle with instructions on how touse the mini- and maxi-systems.Without the casselle it's $14.95;however, in my opinion, the casselleis worth as much as the book aloneand I'd highly recommend including

it. :J..~

April 1976/Arkansas Lawyer/71

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n/Arkansas LawyerlApril 1976

ARE YOU READY TOGO TO THE OFFICE?

This is ETHICS QUIZ NUMBER 4 in our current series. We are indebt­ed to the New York State Bar Association for permission to reprint fourEthics Quizzes, recently published to remind members of their pro­fessional responsibilities.

This quiz deals with questions many lawyers confront during their daily practice. Ifyou cannot get a perlect score (100%) on this one. you beMr start reading the Gode ofProfessional Responsibility tonight! Answers are on page 75.

,

1. The morning newspaper contains a news item reporting the indictment of a lon9­hunted fugitive for the murder of a police oHicer. The District Attorney is quoted as iden­tifying the defendant as a well-known member of the Mafia with a record of three cor>­victions for assault. Should you do anything?

2. That evening. there is a TV news item of the District Attorney announcing that thedefendant has been arrested in another city and has given a confession to the arrestingofficers. Does this additional statement change your answer to question 1?

3. The morning newspaper also contains an article reporting a speech by a newjudge criticizing a State law which requires mandatory life imprisonment for possessionof substantial quantities of narcotics. The judge, who is currently sitting in CriminalPart, describes the law as "unconscionable" and urges its repeal. Did the judge act im­properly?

4. In the morning mail is a letter from Judge Johnson asking you to purchase two $50tickets for a fund-raising dinner for the Murray Hill Settlement House, a worthy charity ofwhich he is a trustee. Shou Id you tear the letter up and throw it away?

5. You are asked by a long-time client to draft a will involving complicated future in­terest provisions. You have had little experience in the area, and are fearful that youmay not be able to do the job correctly, but the client is insistent. May you ask your cli­ent to sign an agreement that you will not be held liable if the will fails?

6. May you take on the matter at all?

7. Another client previousty asked you to handle a piece of complicated tax litigationwhich you had immediately turned over to a tax specialist to handle. The specialist hascompleted the job satisfactorily and has been paid. He sends you a nice letter of thanksand encloses a check for 25% of the payment as a forwarding fee. May you deposit it?

8. A corporate executive who runs a medium size computer servicing firm has com­plained to you about the predatory practice of one of the giants in the industry who hasrecently pleaded nolo contendere to a criminal antitrust indictment. You have just re­ceived an announcement of the return to private practice of a lawyer who served in theAntitrust Division of the Department of Justice and who was associated with the investi­gation leading up to the indictment Can you suggest to your client the retainer of thislawyer as co-counsel to help in drawing up a Ireble damage complaint against the of­fending violator?

9. You are about to go to trial in a commercial case in which expert testimony wouldbe extremely helpful. The problem is that the expert's lee is substantial and your clienthas suffered financial reverses and has little cash available. May you offer the expert anominal fee for testifying, with the understanding that if your client recovers he will re­ceive an additional payment out of the recovery?

10. You are a member of the Board of Directors of the local Legal Aid Society. Mayyou and your fellow Directors give a staff attorney directions on the manner in which heshould conduct the defense of a controversial black militant in a highly publicized "in­citement to riot" case?

Y.s NoDon'tKnow

April 1976/Arkansas Lawyerl73

............I111 JURIS DICTUM

by C. R. Huie

Executive Secretary, Judicial Department

AN OBJECTIVE VIEW OF THE ARKANSAS COURTSAND THE LEGAL PROFESSION

Ed McConnell, long recognized esone of the nation's outstanding CourtAdmlnlstretors and until fairly recentlyAdministrative Director of the New Jer­sey Courts, was drafted by the Directorsof the National Center for State Courts tobe Its Director. He accepted an invitationto addrass the Arkansas State JudlcielCouncil at its Seminar and Annual Meet­Ing on October 10, 1975. His remarkswefe so well received that several mem­bers of the Council requested copies ofthe address. Feeling that the members ofthe Bar end those judges who were un­able to 8Hand the Annual Meeting wouldalso enjoy his humorous and perceptiveremarks, I decided to devote this Issue's"Juris Dictum" section to a reprint oftheentire address. Mr. McConnell servedhis apprenticeship under Chief JusticeArthur Vanderbilt of the New Jersey Su­preme Court, recognized as one of thenation's strongest leaders In the move­ment for court Improvement and reform.

Mr. McConnelfs address follows:

SOME NATIONAL TRENDSAND PERSPECTIVES

RE JUDICIAL ADMINISTRATIONI read the agenda of your meeting

here today with a good deal of interest.Seminars such as this offer a valuableopportunity not just for you to becomemore familiar with the topics under dis­cussion. but an exchange of views by allmembers of your judiciary should provemost helpful in coming to grips withsome of the basic problems confrontingthe courts and the legal profession. Andthe value of such free discussion in thesolving of problems is well recognized.

The interest of judges and lawyersalike in improving both the courts andthe legal profession is at high tide.Whether it is the result of continued pub­lic prodding or the self-awakening of anew sense of responsibility, the fact re­mains that there is a nationwide ground­swell of interest in court reform, or courtimprovement as some prefer to call it.The specifics vary from state to state, but

74/Arkansas Lawyer/April 1976

the current focus is on the following gen­eral areas:

1. There is a growing professionalismin the courts. This is reflected in re­newed interest in merit selection of jUdg­es, in the insistence on procedures forthe discipline or removal of judges whenappropriate. and in the development ofmeaningful in-service judicial trainingprograms at both the national and statelevel - a SUbject you discussed this af­ternoon. Attention is also being given toimproving the caliber of court supportpersonnel - a painful process that re­quires taking court staffs out of the poli­tical patronage arena and making themdirectly responsive and responsible tothe judges and courts they serve.

2. The courts are rapidly becomingmanagement conscious, with the hiringand training of qualified court managersand the utilization of the skills and tech­nology of modern business manage­ment. And I should interject here that itis not just the large urban courts thatneed to improve their operations andcan benefit by the application of soundbusiness principles - in fact it is thesmall and medium sized courts, I think,that stand to gain the most. becausetheir problems are manageable, where­as in some of our large urban centerslike New York City and Chicago it isquestionabie whether anything is goingto pull them out of their present deplor­able state.

3. There is a continued trend towardcentralized state court administration,notwithstanding some of the theories be­ing voiced that this is conceptually inap­propriate. Courts, like any other organi­zation, need strong leadership if they areto work well and continue to meet theneeds of the times, and leadership canonly come from the top. It is beingrecognized, however, that centralizedadministrative authority over state courtsis best exercised by actively involving allaffected troups in the decision-makingprocess and by decentralizing policyexecution. This trend towards centraliza-

tion of court systems is also seen in therenewed interest in Roscoe Pound's sim­plistic "one-court" concept and in themovement towards state financing of allcourts, which prompts me to inquirewhether it is really necessary for Arkan­sas to have two courts of general juris­diction and seven courts of inferior juris­diction? In asking the question I do notintend to suggest the answer. In myopinion there are only two tests for acourt system: Does it work; and do thepeople of the state like it. If so. it mattersnot that it is different from that of anyother state or anybody's standard.

4. One of the most recent. and in myopinion most significant developmentsis the belated realization that if courtsare to run well, like any other well-run or­ganization or operation, they must planfor the future. Impetus is being given thismovement by a new nation-wide projectwe at the National Center are undertak­ing aimed at developing the internalplanning capabilities of state court sys­tems. In retrospect it is somewhat amaz­ing that court systems have improved atall, since few states have had any idea orplan as to where they wanted to go or asto how they were going to get there. AndI might add that having a plan is only thefirst step - there must also be the com­mitment and determination on the part ofall concerned to carry it out.

Now that I've mentioned some of thethings that are being done. I shouid liketo briefly enumerate what I perceive tobe seven major areas of public dissatis­faction with courts and with lawyers:

1. Case dispositions are too long de­iayed. I am fUlly familiar with all the rea­sons - and many of them are very goodreasons - why this is so; but there canbe no question that court delay is one, ifnot the major cause of public disillusion­ment with the judicial process. Accord­ing to the last annual report of your Judi­cial Department. in the iast 10 years thevolume of filings in your circuit andchancery courts has doubled, and over8% of all criminal cases, almost 15% of

J

civil law cases and over 31 % of all chan­cery cases pending on your docketswere over two years old. In comparisonwith some other jurisdictions this maylook current - but it does not look thatway to the ordinary litigant. Courts justmust be given the resources in terms ofjudges, staffs and facilities to processexpeditiously the business coming be­fore them. The only alternative, if thepublic or the politicians are unwilling orunable to finance adequately our presentsystem, is to explore drastically differentprocedures for the trial of cases. Forexample, an arbitrary time limit might beplaced on the length of time a trial cantake, thereby forcing the parties to makethe best showing they can in the timeallowed. This is generally done today onappeals, with limits on the length ofbriefs and the time for argument. Ob­viously any such procedural changewould be of revolutionary proportionsand would require scrapping or totallyrevamping the rules of evidence and themanner in which testimony is elicited byexamination and cross-examination. Butwhether this is done or not, one thing issure: a given number of judges cannotkeep doubling the number of cases orappeals they dispose of. In most jurisdic­tions the point of diminishing returnsfrom improved techniques has been orsoon will be reached. If disputes are tobe resolved expeditiously, we ultimatelyeither need to add judges or change theprocess.

2. Courts must make greater efforts tosuit the convenience of the public, interms of both when and where they sitand the manner in which lawyers and

court staffs treat litigants, witnesses andjurors. The courts must become moreconsumer oriented. In this regard, I thinkwe might profit by taking a look at thetransformation that has taken place overthe past decade in the banking busi­ness.

3. Some of the mystery must be re­moved from the judicial process - itmust be made more understandable tothe average person. This might be done,I think, in three ways - by increasing layparticipation at all levels; by the televis­ing of court proceedings (a good placeto start being with the Supreme Court);and by bringing judges more into themainstream of community life (many ofthe codes and canons appear to the lay­man as being mere professional excus­es to avoid civic responsibility - a judgedoes not have to be isolated and aloof inorder to be regarded as fair and impar­tial).

4. The cost of legal services and of ac­cess to the courts must be brought with­in the means of the ordinary person hav­ing need of them. The fact of the matteris that today it is only the very rich or thevery poor who can afford to go to court.The person of average or above averageincome just cannot afford to be eitherplaintiff or defendant unless there is aninsurance company around to pay thebill or unless a lawyer takes his case ona contingent fee basis, which in turn isnot without some problems.

5. The legal profession must takesteps to insure the public of the con­tinued qualifications of its members,both judges and lawyers. Some form ofcontinuing education and legal speciali-

zaUon seem to offer the best solution.And we should not minimize the value ofeducation - business has found it an in­dispensable means of keeping up withthe times and of up-grading staff perfor­mance.

6. The political process and not thejudicial process should be used to re­solve basic issues of controversial poli­tical and social policy. There are manycases today that it seems to me just donot belong in court - they are for thelegislatures and not the courts to wrestlewith. But jf courts are to continue to dealwith such issues as school integrationand the right of public employees tostrike, then they must develop proce­dures more reasonably calculated to in­form them as to the facts and the conse­quences than do present trial and appell­ate procedures. One possible technique,for example, might be for the court tohold public hearings at which those con­cerned and affected, but not parties,might make their views known.

7. Finally, the handling of criminalcases, and particUlarly sentencing, mustbe placed on a more rational basis. To­day, the public criticism - and it is notjust police criticism - of the courts' per­formance in this area places our wholesystem of law and justice in jeopardy.The courts just must be prepared to trydefendants for the offenses with whichthey are charged -with a guilty plea be­ing considered only as an alternative totrial - and must obtain from the behav­ioral scientists better criteria for deter­mining what sentence to impose onwhom. iJ-_

What is Your Ethics Rating? 600/0, 800/0, 400/0?

L

Answers to Ethics Quiz No. 4Conffnued ~om page

(Don'l look unlll you have marked allof you, an.wer. on tha quiz.)

1. Ve••2. No. Both the newspaper article and

a report of the TV news item shou Id beforwarded by you to the Grievance Com­mittee. Disclosure of a confession, evi­dence, prior criminal record, or otherprejudicial background information tothe media by the lawyer for the prosecu­tion is a direct violation of DisciplinaryRule DR7-107-(b). Every member of thebar has a personal responsibility to re­port such unprofessional conduct to theproper agency. DR1-103(a). Unfortunate­ly, few lawyers have read the new Codeand fewer still comply with it, so theseabuses continue to occur with alarmingfrequency.

3. No. Since the judge has an excep­tional opportunity to assess the work­ability of the narcotics law he can andshould express his opinions on how it

can best be improved, if, in doing so, hedoes not cast doubt on his capacity todecide impartially any issue that maycome before him.

4. No. Vou should send the letter to thenewly-created State Commission onJudicial Conduct. A judge is prohibitedfrom soliciting funds for charity byCanon 5(b) (2) of the Code of JudicialConduct. A lawyer's obligation to reportimrpoper conduct extends to judges aswell as lawyers. DR1-103; ECl-4; EC8-o.

5. No. Attempting to limit liability formalpractice is expressly forbidden byDR6-102(a).

6. Ve•• Although ordinarily an attorneywho does not feel competent to handle amatter should not accept it at all, it ispermissable to do so if. with the know­ledge and consent of his client, he asso­ciates with an attorney who is capable ofdoing an adequate job. EC2-22; DR2­107(a); EC4-2; EC6-6; DR6-101 (a)(l).see NVSBA Opinion 339.

7. No. A fee can never be divided with­out a client's knowledge and consent.DR2-107. NYSBA Opinion 134. Even ifsuch consent is given, however. .. . ..the division is to be made in proportionto the services performed and responsi­bility assumed by each". NYSBAOpinion 317. Here no split is justified.

8. No. "A lawyer shall not accept pri­vate employment in a matter in which hehas substantial responsibility while hewas a public employee." DR9-101(b).See also ABA Informal Decision 1182.

9. No. Any contigent payment to anexpert witness which amounts to abonus if the client prevails is explicitlyprohibited by DR7-109 (c).

10. No. Such a board should limit itselfto formulating broad policy. leaving theconducting of individual cases to at~

torneys assigned to them. See OR2­103(d). For an extended discussion ofthis question, see ABA Opinions 324 and334. J--~

April 1976/Arkansas Lawyer175

For I have learned, in whatsoever state I am, therewith to becontent.

3Jn JMtmortam

CHAS. H. TOMPKINS1889-1975

Chas. H. Tompkins, the seniormember of the law firm of Tompkins,McKenzie, McRae & Vasser, died inPrescott on September 20, 1975.

GEORGE EDWARD THIEL, JR.1924-1975

Former MuniCipal Judge GeorgeEdward Thiel. Jr.. 51, of Paragould,died November 11, 1975, of injuriesreceived In a traffic accident onHighway 1 Bypass

Thiel was an attorney and a life­time resident of Paragould. Hegraduated from the University of Ar­kansas School of Law in 1947. Hewas a former president of theGreene and Clay Counties BarAssociation. and served as mUni­cipal judge in the 195O·s.

Thiel was a member of the Chris­tian Church and a 32nd Degree andScottish Rite Mason. He is survivedby his mother, Eva Blanche Thieland a son. Michael E. Thiel. both ofParagould

Chairman of the Little Rock CivicCommittee. He served many yearson the Board of the Liltle Rock BoysClub and as ils president. and as adirector of the Boys Clubs of Ameri­ca.

Mr Penick served as a vestrymanand senior warden of the parish ofTrinity Episcopal Cathedral and hadbeen chairman of the StandingCommittee of the Episcopal Dioceseof Arkansas and a member of theDiocesan Board of Trustees.

He was a Mason. a member ofSCimitar Shrine Temple, a pastgrand commander of the KnightsTemplar and a former secretary ofthe Arkansas Division of the KnightsTemplar Educational Foundation.

Mr. Penick was a founder and thefirst Protestant co-chairman of theArkansas Region of the NationalConference of Christians and Jews,and the recipient of its 1973 Brother­hood Award.

Mr. Penick is survived by hiS wife,Virginia Ivey Penick; three sons. Ed­ward M. Penick, James H Penick,Jr., and James Carroll Penick; andtwo daughters, Mrs. W. N. Brandon.Jr. and Virginia Ivey Penick; two sis­ters, eight grandchildren and fourgreat-g randch iIdren.

Philippians 4:11

Springs, and then to Little Rack in1904. Educated In the city's publicschools, he attended Washingtonand Lee University at Lexington, Vir­ginia, interrupting his college edu­cation to join the Army in World WarI. He returned to the Army in WorldWar II and spent much of his sec­ond tour at Rome as Chief of theAllied Financial Agency. helping torebuild the banking system of Africaand Italy. Italy awarded him the Or­der of the Crown of Italy for his ser­vices. He also received the Legionof Merit from the U.S. Army and leftthe Army as a Lieutenant Colonel.

Mr. Penick lolned the staff of whatthen was called the W. B. WorthenCo.. Bankers. On February 15. 1919.He rose through the ranks to teller.cashier, executive Vice president,president and board chairman. retir­ing from active bank managementin the mid-196O·s. but retaining hisseat on the bank's Board.

Mr. Penick earned a law degreefrom the Arkansas Law School andan honorary doctor of laws degreewas awarded him by the Universityof Arkansas. He was admitted to theArkansas Bar in 1919.

Mr. Penick served In many capa­cities in various banking organiza­tions, local. state and national. Innonbanking fields, Mr. Penick ser­ved as President of the CommunityChest. the predecessor of the Unit­ed Way. of Pulaski County; as presi­dent of the Little Rock Chamber ofCommerce and of the PulaskiCounty Citizens Council (latercalled Ihe Committee of 100); and as

JAMES H. PENICK1897-1975

James H. Penick, aged 78, SeniorBoard Chairman of Worthen Bankand Trust Company, died December4, 1975, in Littie Rock.

Mr. Penick was born at WestPlains, Missouri, July 14, 1897, butmoved with his family to Hot

78/Arkansas Lawyer/April 1976

ROBERT S. McGREGORMunicipal Judge Robert S.

McGregor, aged 67, died November27. 1975, at Brinkley.

Born at Brinkley, he had been asteamship captain with the LykesBrothers Steamship Line and was amember of the Merchant Marineduring World War Ii, and the Koreanand Vietnam wars. He returned toBrinkley after his retirement from theMerchant Marine. and becameMunicipal Judge in 1973.

He was a graduate of Cotton PlantHigh School and the University ofArkansas He was a member ofSigma Alpha Epsilon Fraternity. theArkansas and American Bar Asso­ciations, the Brinkley Rotary Cluband the Elks Lodge. He was aPresby1erian.

Survivors include his wife, Mrs.Wilma Spears McGregor; twodaughters, Mrs. Barbara Denton ofHot Springs and Mrs. Romeo E.Short of Brinkley. a brother. threesisters. eight grandchildren and fivegreat-grandchildren.

Memorials may be made to Brink­ley Presbyterian Church and R. C.Wels Living Memorial Fund at St.Joseph Nursing Home at Brinkley.

He was born In Prescott on Sep­tember 1, 1889, and made his homein Prescott all of his life.

Mr. Tompkins was graduated fromthe University of Arkansas and laterattended Washington & Lee Univer­sity in Lexington. Virginia. where heobtained his law degree in 1914. Hewas an outstanding pitcher on thebaseball team of each school andlater played professional baseballwith Toronto. Canada. for the Inter­national League and the CincinnatiReds of the National League.

Mr. Tompkins was admitted to theArkansas Bar in 1914 and shortlythereafter commenced the practiceof law in Prescott with the firm ofMcRae & Tompkins. He was en­gaged in the active practice of lawin Prescott until his death, a periodof more than 60 years.

He was an Elder of First Presby­terian Church of Prescott for morethan 50 years, taught the Men'sBible Class, and was a member ofthe choir of that church for manyyears. For all of his life he was an ar­dent hunter and fisherman.

Mr. Tompkins IS survived by twochildren, Martha Tompkins Felder ofSan Antonio. Texas, and Chas. H.Tompkins, Jr., of Carthage,Missouri. and four grandchildren.

REUEL WALTER TUCKER1895·1975

Reuel Walter Tucker, 80, ofRuston, Louisiana, died March 3,1975.

Mr. Tucker was a native of Arkan­sas and a member of Trinity Metho­dist Church of Ruston, LouisianaHe was a veteran of World War I,and had been an attorney in Bates­ville and EI Dorado, Arkansas. untilhis retirement 20 years ago. Mr.Tucker was a member of the Arkan­sas Bar ASSOCiation and the Ameri­can Bar Association.

Mr. Tucker had recently complet­ed a book entitled "Memoirs andHistory of the Peyton Tucker Fam­ily," which book was received fromthe publisher the afternoon of hisfuneral

Survivors Include his wife, RoseLaurence Tucker, and a number ofnieces and nephews ~.

MEMORIAL GIFTS

"It is more blessed to giv~ than to receiven-However, a member profitsboth way. with a memorial gift to the Arkansas Bar Foundation. One'. gift isa beautiful way of honoring a former colleague. The family must be mostal'Preciative of such remembrance. The gift is n"ted in the Foundation'.Memorial Book and, of course, is tax deductible. Memorial gifts may be sent10 the Arkansas Bar Center. The memorial cards (below) of the Arkansa.Bar Foundation are formal and are promptly delivered upon receipt of thememorial gift.

WE ACKNOWLEDGE WITH GRATEFUL APPRECIATION

THE RECEIPT OF A GENEROUS MEMORIAL GIFT

FROM

OF

IN MEMORY OF THE LATE

~ dda....da6 @"", .%~.LITTLE ROCK, ARKANSAS

DATE

WE ACKNOWLEDGE YOUR GENEROUS MEMORIAL

GIFT IN THE AMOUNT OF _

IN MEMORY OF THE LATE

THE FAMILY Is BEING NOTIFIED

LITTLE ROCK, ARKANSAS

April 1976/Arkansas Lawyerm

LAW SCHOOL NEWS

by Asst. Dean J. Steven ClarkDean David R. Hendrick

TO THE MEMBERS OF THE BAR:

Most of you have just received yourLaw Graduates Brochure for 1976. Asmentioned by both Dean Davis andDean Hendrick. we are quite proud ofthese graduates and believe they will bea credit to our profession and associa­tion.

Due to the decrease of available jobopportunities, students are taking place­ment and their preparation to becomeskilled lawyers more seriously. A largenumber of students each year are in­volved in intern programs throughout the~tate. These students work with prosecu­tors, pUblic defenders, circuit judges.prison officials. the United States 8"or­ney. and the attorney general, just toname a few of our colleagues who havebeen involved in the development ofsuch students' legal education.

Additional students acquire practicalskills and experience clerking with in­

numerable firms in Fayetteville, LittleRock, and other communities. Moreover,both schools operate clinical programs.At the Fayetteville campus the clinic

operates five days and two evenings aweek. This practice skills law officeoperates with over seventy-five studentassociates. It is directed by three attor­neys and litigates in the juvenile, muni­cipal, and chancery courts with theassistance of supervising attorneys fromthe community. The culmination of allthis effort is a student who is wellgrounded in the fundamentals of lawwith an awareness of the practical sk illsneeded to be successful in practice.This student can be a benefit to any firmeither as a summer clerk or an asso·ciate.

Just as our education programs havebeen expanded to include practicalskills, so have our placement servicesgrown. A conscientious effort is made toaccommodate every individual. firm,government agency, or corporation de­siring to interview our graduates. ThePlacement Offices can inform studentsand recent graduates of positions avail­able; collect resume data from interest­ed applicants; arrange scheduling and

interview facilities, and assist in bringingtogether employers with qualified appli­cants. Of course, these services are free.

The development of an expandingpractice and effective delivery of clientservice directly correlates to the de­velopment of a sound recruitment pro­gram. It is our sincere hope that the law­yers of our stale will permit its lawschools to assist them in the develop­ment of their efforts for extra part-time in­terns and associates. Do not hesitate tocall upon our placement services when­ever we can be of assistance. Contact:

J. Steven Clark. Assistant DeanSchool of LawUniversity of ArkansasFayetteville. Arkansas 72701

David "Sandy" Hendrick, Acting DeanSchool of LawUniversity of Arkansas400 West MarkhamLittle Rock, Arkansas 72201

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLEDean Wylie Davis attended a Dean's

Workshop February 12, 13 and 14 at themid-year meeting of the American BarAssociation in Philadelphia.

Saturday, January 30th. Mssrs. FinesBatchelor, Jr., Tom Ledbetter and LewisEpley. Jr.. presented a legal economicsseminar at the School of Law. Thesem inar was extremely well receivedand attended by the students. The facul­ty and students at the Fayetteville cam­pus appreciate this service rendered bythe bar and these lawyers.

Professor Morton Gitelman was thekeynote speaker at the January meet­ings of the Arkansas Press Women In

78/Arkansas Lawyer/April 1976

Fayetteville and the Arkansas Federationof Water and Air Users, Inc., in HotSprings.

Assistant Dean J. Steven Clark tookleave of absence from the School of Lawduring the month of January to serve asa legislative liaison to Governor DavidPryor for the extended legislativesession.

Professor Hillary Rodham was the key­note speaker at a national conference inchildren's rights held at Brigham YoungUniversity, Provo. Utah, February 19th.

Dean Wylie Davis addressed theSebastian County Bar TueSday, Febru­ary 17th.

Mssrs. Robert Henry and Ernest Law­rence, Jr., Chairman and member, re­spectively, of the Board of Bar Examin­ers, presented a program for thosegraduating students preparing for theBar Friday, March 6th. The program wascoordinated by the Bar Association'sLaw School Liaison Committee throughA. D. McAllister and Rudy Moore. Jr. Theprogram was very well attended andquite informative.

It is with deep sorrow that the Schoolof Law records the death of Mrs. NormaGitelman, wife of Professor Morton Gitel­man. We will all miss her friendship andsupport of law school programs.

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT UTILE ROCKA Committee chaired by Dr. Winston

Beard. Associate Vice-Chancellor of theUniversity of Arkansas at Little Rock. issearching for a permanent Dean of theUALR School of Law. Four members ofthe law faculty, two law students, a pastpresident of the Arkansas Bar Associa­tion, and a member of the UALR under­graduate faculty constitute the Com­mittee. They are: Professors Ruth Brun­son, Robert H. Marquis, and James Wm.Spears; Assistant Professor Kenneth S.Gould; Mrs. Nancy Hofmann and Mrs.Marjorie Kesl; the Honorable GastonWilliamson and Professor Pat McGraw.UALR Chancellor G. Robert Ross willannqunce the appointment after receiv­ing recommendations from the Com­mittee and the law faculty. No date hasbeen set for the appointment. AssociateProfessor David R. Hendrick, Jr. is serv­ing as Acting Dean during the interim.

Professor Robert H. Marquis recentlyattended an Environmental law Sym­posium at Nashville. Tennessee. Mr.Marquis served as a panelist discussingthe topic. "The Environment and theT.V.A.... The conference, held onJanuary 21, 1976, was co-sponsored bythe Tennessee Environmental Council,the University of Tennessee at Nashville.and the Junior League of Nashville. Pro­fessor Marquis was also a featuredspeaker at the annual Oil and Gas In­stitute held in Hot Springs on Thursday,February 26, 1976. Mr. Marquis spoke on"The Arkansas Administrative Proce­dure Act and the Conservation Act ­Some Federal Precedents."

Professor Arthur G. Murphey ad­dressed the Pulaski County Bar Associa­tion at its regular monthly meeting onMarch 5, 1976. Mr. Murphey reviewed

Service Directory

"Recent Developments in ConsumerCredit Law,"

Sixteen students at the UALR Schoolof Law have been named apprentices onthe staff of the Arkan.a. Law Review.Those named were: Rolf Anderson.Katherine Anderson, Paula Casey.Wayne Elrod, George Jegley, SteveJones. Wayne Lee. Paul Means, AnneOwings. John Peace, William Tyler, andKathy Woodward all of Little Rock;James Carroll of North Little Rock, Mrs.Sherry Mathis of Arkadelphia, RandyRice of Benton and Mrs. Judy Stracenerof Jacksonville.

The Law Review is published quarter­ly under the auspices of the ArkansasBar Association and the Fayetteville andLittle Rock Law Schools. The principaleditorial offices are on the Fayettevillecampus. "

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SW-2d Reporter. ArkansasCases, Vols. 1 through 315.total 62 books, $2.50 each. 462Grand Avenue. Hot Springs.Arkansas Telephone 321-1136.

20c per word - $5 minimum

Law library of the late WilliamKendall Lemley and FederalJudge Harry J. Lemley. For in­formation regarding thiscollection contact:

Mrs. Fred O. ElliS404 North McRaeHope, Arkansas 71601

April 1976/Arkansas Lawyerl79

Major legislation of Interest to lawye rs

94th Congress, Second Session

Bill Description House Status Senate Statlls ABA Position

No.Fault. (5 354: HR 9650) Ellotbllsh lede,.l nO"olult ,}UIO h,surance Commerce subcommIttee CumrnCI<;e Committee OpPole5sta"CI.lrds. reported 10/29/75 regorted 7/15/15

Adm!nllt,.tlve ProCldur. A" Amendmenh. IS 796-800: HR Judiciary subcommill•• Pending In Judlcluy SlIPPOrts

10194·10199) Pl"OPOioIll to Improve admlnlllr.lIl1e procedu'f15. be~n hearings lubcommltlee12/4/75

Additiona' JuCl,...ttlps.. (5 2861 Crute 7 more appellite judgeshiP" JUdlCl40ry subcomm~lIee PUHCl 5 286 lO/2{75; SuppOrts

IS 287) 45 more district jud9ll5hlpl: (HR 4421) 52 more d151,lct ~nhur;n91 Judlc..ry reported ildCllllona'Judgeships: IHR 4422) 13 more nK)ell~.luCl....Shlpl. 11/12f15 S2879f24{15 Judgahlol

Judie.. ' Cln:ult1.. IS 729) Reo'9<'nl."e 5th .no 9th c:lreults ano ere-te NO bit" Judlcl.,y Committee Supports

addltloniill judgeShips In thOse clrcults: (S 2752) Reorpnlze only Sth Introdueed reponed 5 2752 12~: r.clr~nl.EUlon

clfCult lind creiilte iil<tditloniililudgeshlps_ Judiciary subcommittee In principlerepofted S 729 9/23/75

Niiltloniill Court of Appeals. (S 2762: HR 11218) Estiilbllsh 7·member Pending In Judleliilry Pending In Judlcliilry SUPPOrlS onlycourt to consider uses referred by the Supreme Court or translerred subcommittee SUbcommittee lelerence JurlS-from the U.S. Court ot Appeiills. dlcllon

Thre.Judge court .. (S 537: HR 61501 Eliminate th,ee-judge courts Judiciary suocommlltee Pused 6/20/75 SUPPortsexcept In certain uses. iilPproved HR 6150

am.nded 9/25(15

Judlc~1 Tenure. CS 1110: HR 1275) Establbh procedure for rellre· Pending In JUOKiiilry JudiciAry subcommlltee SUPPOrtsment, ,emoviill of diSAbled or untlt judges. SUbCommittee began heilrlnlll In o.lnc!o"

2/18/16

0 ... Co..ernmenl. IS S, HR 116561 Require open meellngs of Cov't Ope,..tlons Pused S Res. 9 Suppo,tsgove,nment iilgencies: IS Res 91 Open senate meetln9S. Committee begiiln llts/75 iilr'Kl S 5 In princiPle

miilrkup 2/26/16 11/6/75

Gun ContrOl. (Unnumbe,ed Sen.. te 0111: HR 11193) Limit or prohlOU Judlc10lry Committee Judlcliilry subcommittee Suppo,ts

Hill, ownership, possession, t, .. nsoortiiltlon Or receipt of hiilndguns. bltgiiln miilrkuo reponed 12/1/75 strengthening2/3/76 gun control iilet

F.CI.r.1 Crimln.. 1 Code Revision. IS I: HR 333, 3907,108501 Revise Pending In Judlcliilry Judleliilry SUbCommittee Supoorts S 118 usc: Codify, " ..1", .nd emend f.oen,l crimina' 'ews. subcommittee reported 10/21/75 iilS buis for

'eg,st..uon

AWiil,d ot AUo,ney Fees. IS 2278 et al; HR 7825 et iilO Authol\ze JUdle10lry wbeommlttee Judlc10lry subcommIttee NO pOl,tlonawa,d of reuonabie legiill' fe.s .nd costs ,n DUbilc Interest and Other completed l'Iurings completed l'Ie.-rongs on1It1901Uon. )2/3/75 S 2715 2/6/16 iiIInd

app,oved S 2278 2/19/76

Conwmer Pfotectlon. CS 2001 Estiilbllsh lr'Klfloendent, nonregulatory Pnsecl 11/6/75 Pnsed 5/15/15 SuPPOrtsAgency 10' Consumer AdvOCiilCy '0 "P,eMnt consumer Interests wltl'l ..menOments /n principlebefo,e feeler .. 1 .genc,es.

Wo,ke..' Compensation. IS 2018; HR 9431 ) ESlabllsl'l minimum EOuc;ltlon·L.bo, L.. bo,·Public Well.,e Opposes federiillfeder.. 1Stillndards fO' state wO,kers' compen ... tion orog,..ms. subcommittee oeg.. n SUbcommittee begins stlnOards

hf:ijl,lngs 1/22/76 hUflngs 3/2/76

Voter Registration. IS 1177; HR 115521 Allow voters to ,egluer for RUles committee Post Office and Civil SuoporUledera' elections by m ..lIlng postca,d 10 10UI election oltlelafs. postponed 1/29/76 service comoleted

l'Iurinos 5/9/75

Medlc.. 1 M.. lpriilCtlce In"",.. nce. IS 188 et al: HR 6)00) Propowls to Commelce wbcommittee Labo,-Public Welfare ABA commlss.onusure ..v.. llabillty 01 msur.. nce, InCluding federal relnw,..nce, lim,ts bfI9iiIn regional SUbcommittee hflld to Sludy ISsueon conllngency fees, strlcte, st.. ndards fo' medlUI personnel. nea,lngs 6/16/15 iiIIdditional neiil,lng

12/3/75

C,lmlniill Justk:1 In'orm ..Uon P'I....ey. CS 2008; HR 8227j Provide fo, Judiciary wbcommlttM JudiCiary subcommittee SuppOrts

security. iiIIecuriilcy and conlldentl.. tity of crjmln... Justlee information; completed heiillrlngs completed he..rlngs In principle

orotect prlv..cy of ind/vldu..1 to wnom informulon rel.ltes. 9/5/75 7/16/75

LEAA. IS 2212; HR 9236) Extend life of LEAA 5 years: eXPiilnd Judlcl.. ry subcommittee JudlCI,ry sUDcommlttee Supoorts iiIIde·,urlsd,ct,on of Its rese.. ,e" Inltltute 10 clvlt m ..llefl: empl'laslu courl bflgiiln l'Iurlngs began hearings QU.. tfl eOUf!orog, ..m funding: (HR 8967; S 3043j Anures Judiciary LEAA funding 2/19/76 10/2/75 funding

Bankrvptcy L..w Refo,m. CS 235. 236: HR 31, 32) Rev,se iiIInd relOlm Judlcl .. ry subcommittee Judleliilry SubCommittee Supports reform11 USC, leoe'iill biillnkruotcy t..... s. hu,lng1 underwey begins markup

in M..reh

Antitrust L..... s. IS 1284j ElIlOiilnd federal p.emerger notlllUlllon JUd,cl .. ry SUDeommlttee Judiciary subCommlUee Opposespower and use Of c"mlniilll .ntltrust nolo pien In civil easel; Increase COmPleted l'Ieiillings to begin m.rkupCfllliill,n hnes, Autho,ize /HIfrns p~r'lilf1: S"engtl'len elv,1 discovery on HR 39 7/25/75 3/4/76C.. ISO HR 39)

Antlt,ust Puenl PU,I,ul. (5 1284, Tltte IV: HR 85321 Authorize Sl.. te Rules Committee Judlcl"y wocommlttee Opposesattorney§ gener,1 to sue on oeh,H of state Citizens to reCOver antitrust granled open to begin m .. rkuoaiilm..ges. rule 2/10/76 3/4/76

BO/ArI<an.a. Lawyer/April 1976

VERBALIZING

Relating to the public

Is there an organized group, or apublic person, anywhere in ourcountry who doesn't complain about"having a bad image" or "getting abad press"? I have yet to find one,including, ironically, public relationspractitioners and news people, thebuilders and conveyors of"images."

Lawyers, it seems, are constantlyreading, and taking seriously, sur­vey results that rank them in publicesteem at a level with morticiansand just below butchers and abovehairdressers. There appear to bethree sacrosanct rules followed byevery speaker or writer on the sub­ject of lawyer pUblic relations:

1) Quote deTocqueville, whowrote many complimentary thingsabout lawyers.

2) Immediately contrast some­thing by deTocquevilie with Sand­burg's "hearse horse" poem, or,even better, with Shakespeare's lineabout "killing the lawyers."

3) Cite one of those surveys­even if it was conducted among sixpeople on a street corner in Keokuk- that demonstrates that people"think lawyers are thieves."

(Incidentally, it always bothers meto see that Shakespeare quote used,since it is virtually always quotedout of context. The quote comes in ascene in which Jack Cade, "arebel," discusses his plan to be­come king. Cade says, "There shallbe no money; and all shall eat anddrink on my score; and I wilt apparelthem all in one livery, that they mayagree like brothers and worship metheir lord." Cade's accomplice, Dickthe Butcher, then suggests that the

rebels begin by killing all thelawyers. Obviously, this suggestionis made not because Dick believesthat lawyers are bad people but outof the knowledge that, by killing thelawyers, Cade and his people wou Idremove the strongest opposition tohis plan to take over the country.)

Lawyers, like everyone else thesedays, are paranoid about what thepress says about them and what thepublic thinks about them. Too manyof us, including some high-levelrepresentatives of the organized bar,think that "the press is out to getus" and "the consumers are out toget us" and "the Antitrust Division isout. .." and so on, ad nauseum.

This attitude is negative and self­defeating, and one often finds thatthose who complain most loudly arethose who try the least and achievethe least to remedy the situation.Public relations is one of the sub­jects about which the bar talks verymuch and does very Iittl&-andwhen I say "pUblic" relations, Imean all of our publics: the com­munity, the judiciary, the press, ourclients, etc.

I suggest that the first thing we dois get rid of the word, "image," as itrelates to public relations. The dic­tionary defines "image, in this con­text, as "a mental picture ofsomething not actually present."The bar, and any group or individualwanting to create a favorable im­pression in the pUblic mind, mustpresent a picture of what It Is, notwhat It wants people to think It Is.This is the difference betweenshadow and su bstanc&-between acosmetic approach and a realistic

one. Let's show the warts and themoles and the pimples; let's admitthat they are imperfections andpoint out that we're taking medicineto cure them.

I further suggest that we stopthinking about the bar as "thesecond profession." Lawyers too of­ten compare themselves to doctors,in a sel-deprecatory way. ManyChicagoans refer to Chicago as"the second city," comparing it un­favorably to New York City. Just asliving in Chicago has taught me thatit's not inferior to any city, workingwith lawyers has demonstrated thatthe bar need not feel less importantor valuable than any otherprofession.

And let's maintain a free and openworking relationship with the pressand work to strengthen and improvethat rapport wherever it exists. Weshould avoid that hideous phrase,"no comment," and attempt to avoid"misspeaking" to the press (a wordthat my dictionary doesn't define,but that I think is synonymous with"lying."

Finally, lawyers and bar associa­tions should do positive things--notdance around them, not just talkabout them: Become part of thecommunity; eliminate pompositydisguised as dignity; deal withpeople as though they're equals,even if they aren't lawyers.

Public relations has been definedas, "doing good things and lettingpeople know about them." Whatmore do we need? How much sim­pler can a job be?

-Alan E. Kurland

/1- ....

(Editor's Note: One of the main topics presentad at the National Association of Bar Executives' 1976 Midyear Meetingwas "Public Relations: Angel or Ogre". The above article by Alan E. Kurland, Staff Director of Bar Services of theAmerican Bar Association, received much favorable comment at the meeting. The article first appeared In the January1976 Issue of BAR LEADER, an ABA publication for state and local bar association officials.)

April 1976/Ar1<ansas Lawyer181

OUTSTANDINGLAWYER-CITIZEN

ANNUAL AWARDS

OUTSTANDINGLOCAL

BAR ASSOCIATION

"How to Start andBuild a Law Practice"

Jay G. FoonbergBeverly HIlls, California

OUTSTANDING LAWYER

the "hit" speaker atcurrent Legal Economics

Seminars

CB's

ANNUAL BANQUET& DANCE

SPORTS TOURNEYS

PRESIDENT-ELECT'SRECEPTION

PRESIDENT'S RECEPTION

ASSOCIATION &FOUNDATION LUNCHEONS

82/Arkansas Lawyer/April 1976

ENTERTAINMENT

The New Juvenile Codein Review"

with TOM CONNALLYof Houston, Texas

The Common Good

"Juvenile Justicein Arkansas:

"The Spirit of '76"starring

Penny Ricewith

Glo Atkinson

Two Popular Subjects& Popular Speakers:

with

Juvenile RefereesBob Mayes and

Jimmy Joyce

YOUNG LAWYERS SECTION

ANNUAL MEETING

with JOHN H. CAMPBELLof Kansas City, Missouri

"Ethical Considerations ofPrepaid Legal Services"

Young Peoples' Program

"A Look at the Present Crisisin the Delivery of

Legal Services"

Delegates' Caucuses

Law Review Breakfast

Association Committeeand Section Meetings

BAR GROUP MEETINGS

Annual Membership Meetingof Arkansas Bar Foundation

Arkansas Law Review Board

THE ISSUESOF TODAY

IN THE LAW

"How to Double theProductivity of Your

Law Office"

with

and

HOUSE OF DELEGATES'ANNUAL MEETING

OPEN TO THEGENERAL MEMBERSHIP

ROBERT P. WILKINS, EditorLegal Economics

A very specialladies' program,too!

RICHARD WILLIAMS, ChairmanABA economics of

Law Practice section

April 1976/Arkansas Lawyer/83

hunt-and-peck system works very satis­factorily.

Another advantage of "WESTLAW" isthat the user can correspond with and in­struct the central computer in everydaylanguage. He is not restricted to use ofBoolean logic, which is the case withmany systems. The system, however,does respond equally well to queriesframed in Boolean logic. West has an­nounced that "WESTLAW" is now avail­able to the legal profession. 1 __

Annotallonsare as mucha part 01 Ihelaw as Ihelaw lise II...

USCA

Elmer P. RobertsP.O. Box 17161M~mphis. TN 38117Phone: 901 744-8420

A Hawaiian costume party was on top of Greta's summer socialcalendar. A hula skirt was Just what she needed. She foundone in a little costume shop at a good price. But at the partya careless cigar ignited the skirt ... and much more thanGrela's pride was injured. If this were your case, how wouldthe Flammable Fabrics Act affect this civil tort action? Youwould not find a case In point under the Act-UNLESS youlooked in USCA (Title 15 § 1191). You see, USCA gives you allthe law, including all the court constructions . ThaI's whyso many lawyers have relied on it for so many years. Jointhem. Get details from your West Publishing Company repre­sentative.

You know you would find it in USCA.

to "WESTLAW" will be linked to thecentral computer data base through aterminal unit with a typewriter-like key­board and a cathode ray tube for docu­ment display. Another element in thesystem is an IBM printer which enablesthe user to get instantaneous hard copyprintouts of documents displayed bymerely touching a button. No specialskills afe needed to "talk" to the com­puter through the keyboard. The userneed not be a skilled typist; in fact, the

WEST ANNOUNCES"WESTLAW"ELECTRONIC

RETRIEVAL SYSTEM

More Ihan 2,000,000 lawyer-preparedcase summaries are stored in the centralIBM-370 computer dala base of a newelectronic retrieval system for legal re­search just announced by West Publish­inl1 Company, SI. Paul. Called "WEST­LAW," the system culminates ten yearsof research and development by West inthe field of computerized retrieval. Be­fore its market introduction, the systemwas also field-tested at a large law firm.a state supreme court. a governmentjudicial center and a federal agency. Theperformance Is rated as excellent by theusers who hail the system's simplicity ofoperation and the speed and thorough­ness with which it retrieves relevantcase summaries for instantaneous cath­ode ray tube display and for hard copyreproduction.

"WESTLAW" offers to the legal pro­fession the most extensive case law database available in the legal field. It in­cludes lawyer-prepared case summar·ies classifying points of law from all Na­tional Reporter System opinions of thetederal courts from 1961, and of the ap­pellate courts from all of Ihe stales from1967.

The West approach to computer­assisted legal research, an approachwhich cuts across Key Number classifi­cations of points of law and case sum­maries prepared by lawyer-editors, wasdeveloped after exhaustive studies ofalternative approaches. The editors dis­covered that the edited data base ap­proach enabled them to find many morerelevant cases than they did when usingthe full lexI data base.

Law offices and libraries SUbscribing

84/ArI<ansas Lawyer/April 1976

Delegate's Reportby Herschel H. Friday

Delegate To A.B.A.

-

I am reporting to you as the repre­sentative of the Arkansas Bar Associa­tion in the House of Delegates of theAmerican Bar Association. For your gen­eral information. the House of Delegatesof the American Bar Association has 340members. The House membership ismade up of the officers and Board ofGovernors. State delegates (one fromeach State elected by the members ofthe American Bar Association in thatState), State and local Bar Associationdelegates, Section delegates (there are25 Sections), Assembly delegates (5 areelecfed for 3-year terms at each AnnualMeeting), delegates of affiliated organi­zations (such as the National Confer­ance Commissioners on Uniform StateLaws and the Conference of Chief Jus­tices), and others (such as the AttorneyGeneral of the United States and PastPresidents).

The House of Delegates meets twice ayear, once at the Annual Meeting inAugust and once at a Mid-Year Meetingin February.

The business before the House comesfrom many sources, including officers,Board of Governors, Section reports,Standing Committee reports, SpecialCommittee reports, State and Local BarAssociations and others. At the lastmeeting of the House in Philadelphia(February 16-17, 1976), there were some52 items that required action, many ofthem involving extended debate.

I will not try to cover all of these Itemsbut do want to mention a few specificsthat should be of interest to you.

The dues structure was amended, of·fective with the fiscal year beginningJuly 1, 1976, as follows:

510 - if admitted to the bar less thantwo years,

S20 - if adm itted to the bar two yearsbut less than five years,

$40 - if admitted to the bar five yearsbut less than ten years,

sao - if admitted to the bar ten yearsbut less than fifteen years,

5100 - if admitted to the bar fifteenyears or more.

This proposition was given serious, consideration because of the possibility

that Increased dues will drive certain

members of the profession out of theAssociation and keep certain potentialmembers from joining. On the otherhand, it was pointed out that the Asso­ciation (which is voluntary and now hasin excess of 2OO,0Cl0 members) is widelyengaged in endeavors essential to theprofession and the public. These includeundertakings to improve the following:

1. Administration of Justice (such asproblems of the courts, judicialselection, Code of Judicial Con­duct, fair trial and free press,criminal justice, juvenile justicestandards, corrections-reform pro­jects).

2. Delivery of Legal Services (such assurvey of legai needs, lawyer re­ferral, prepaid legal services plans,legal clinics, legal assistants, lawoffice management and techniques,continuing professional education,specialization, appellate advocacy,litigation).

3. self-Regulation of the Bar (such asantitrust and first amendment litiga­tion, changes in the Code of Pra­fessional Responsibility, Center forProfessional Discipline).

4. services to the Profession (such aslawyers' liability insurance, Juris­can, clients' security, legislation in·volving attorneys' interests in realestate, automobile reparations sys­tem, limitations on lawyers' fees).

5. The Bar and Society (such as lawand the economy, InterdisciplinaryCommission on Medical Pro­fessional Liability, Commission onMentally Disabled, conference be­tween lawyers and CPAs on law­yers' replies to auditors' requests,conference of lawyers and scien­tists, elimination of Improper influ­ences on federal law~nforcement

agencies, election reform, modelprocurement code, Housing and Ur­ban Development Law).

The above broad summary was takenfrom the President's report to the House.The final vote approving increases re­flected a recognition of the necessity foradditional funds as being a more desir­able alternative than curtailing the workof the Association.

The most publicized matter involvesthe changes in the Code of ProfessionalResponsibility pertaining to the makingavailable of additional information con­cerning lawyers and their services. Thishas been characterized as the "advertis­ing issue." However, the debate beforethe House made it clear that advertisingby individual lawyers was not involvedand nothing done was intended to permitthat. Further the clear sentiment of themembers of the House is that in the fore­seeable future nothing is contemplatedwhich will permit advertising by indivi­dual lawyers. What has been done is toauthorize the dissemination, subject tothe control of applicable State authority,of certain information "uniformly applic­abla to all lawyers" through existingmedia (approved law lists and telephonedirectories) which will be useful to po­tantial clients in obtaining legal ser­vices. I, or the office of the Arkansas BarAssociation, will make available uponrequest to any of you the precise chang­es In the Code that were voted by theHouse. For present purposes, I advisethat the sources authorized are reput­able law lists, legal directores, direc­tories published by State, County orLocal Bar Associations and the classi­fied section of the telephone companydirectories. The information that may beset forth is expressly limited but includesspecialization to the extent permitted byState authority, whether credit cards orother credit arrangements are accepted,hours of availability, and a statement oflegal fees for initial consultation or avail­ability upon request of a schedule offees or an estimate of a particular fee:"provided, all such published data shallbe disseminated only to the extent and insuch format and language uniformly ap­plicable to all lawyers, as prescribed bythe authority having jurisdiction by statelaw over the subject."

There is shaping up a contest for theoffice of President-Elect at the August,1976, Annual Meeting. I mention this be­cause of the unique nature of the con­test. The present Constitution and By­laws of the American Bar Associationprovide for a nominating committee

continued on page 86

April 1976/Ar1<ansas Lawyer/85

Delegate'. Report,continued from page 85

made up of the State delegates (onefrom each State, and in Arkansas theState delegate is Jack C. Deacon ofJonesboro). Historically, campaignshave been conducted with the end inview of achieving nomination by theState delegates since that nominationhas been tantamount to election. Thissystem weighs heavily in favor of thesmaller states, such as Arkansas, and ithas been subjected to a«ack on severaloccasions. These attacks have generallypointed out that Arkansas, for example,

with 2,500 to 3,000 lawyers, should nothave the same voice in selecting the of­ficers of the Association as California orNew York, each of which has in excessof 45,000 lawyers. The attacks have beenunsuccessful because on balance theHouse has decided that the system hasproven itself to be realistic and effectivein bringing good leadership to the Asso­ciation. In Philadelphia this year, theState delegates nominated Wm. B.Spann, Jr. of Atlanta, Georgia. The ac­tual election will take place in the Houseof Delegates in August. The Constitutionand Bylaws of the Association permitnomination by petition but, to my know­ledge, has never heretofore occurred.

This year, however, we are advised thata petition will be filed nominating LeroyJeffers of Houston, Texas. It appears,therefore, that the House in August, rath­er than routinely electing the nomineesof the State delegates, will have an ac­tive contest to resolve. I know both ofthese men well, and I believe thai theAssociation and its members will be wellserved if either is elected. They are bothhighly qualified from an Individual andprofessional standpoint.

If any of you would like more in­formation, or copies of specific reportsor other documents pertaining to anyitem of business, please contact me.

J--..

SEMI-LEGAL CROSSWORD PUZZLEACROSS

1. Neglect6. E><--.

11. Sick.12. Cont.13. Long time15. Man's nickname17. Takes an oath.19. Two contract scholars.22. Lupino.23. A letter.24. Sun (Sp.).

86/Arkansas Lawyer/April 1976

25. __ fidem.27. Wide sl.28. Wish, in Ireland.29. What Myerson is.31. Roman numeral.33. Mitigate.34. Claims to property.36. Prior to.37. Defects.39. _ Rptr.42. Long Island __.

43. Between 2d & 3d.45. Paddle.46. Escapee.49. Ear, comb.51. Author, treatise (with SO D)54. Fundamental right.55. Ending for in.56. Uncle, friend.57. Article (Sp.)58. Passed out cards.60. Whiskey and __.61. Dangers.

DOWN1. Caesar, for one.2. Ark. legal scholar.3. A G.!. inspection.4. "I demand an attorney!"5. Sen.'s partner.7. Being.8. Dealer in legal journals.9. "1100."

10. Parts of shoes.14. Ship's lowest deck.15. Hitting the perfect serve.16. Zero.18. Common digraph.20. In __.21. Related to 27A.26. Discourage.27. Other name.29. Fortas.30. Pro __.32. L1ab. __.34._M.35. Per choice.38. Small field.40. Rebound.41. WrongfUl conversion.44. Louis.46. Old S. Ct. rplr.47. Mel.46. N.E. state.SO. See 51A.52. Thus.53. Slippery.56.09 __.59. Three-toed sloth.

ADDENDAby C. E. Ransick

Editor

STANDARDS FOR ADMINISTRATIONOF CRIMINAL JUSTICE

The circle was completed at the Midyear Meeting ofthe National Conference of Bar Presidents, February 12­15, 1976 at Philadelphia. Edwin R. Bethune of Searcywas the featured speaker for the afternoon session onFebruary 13th on "Improving the Criminal JusticeSystem Through the ABA Standards for the Administra­tion of Criminal Justice". As pointed out by AssociationPresident Robert C. Compton in his President's Report inthis issue of The Arltansas Lawyer, Mr. Bethune did anoutstanding job in reporting on the new ArkansasCriminal Code and Rules of Criminal Procedure, effec­tive January 1, 1976.

At the National Conference ofBar Presidents' meeting in Tex­as in 1969, then AssociationPresident Robert L. Jones, Jr.and Executive Director C. E.Ransick were introduced to theABA Standards. With thenNCBP President ChesterfieldSmith presiding, the Texas pro­gram placed great emphasis onthe importance of the ABAStandards. The rest is history,the Arkansas Bar Association made the Standards one

DEAN WRIGHTDean Robert R. Wright has announced his resignation

as Dean of the College of Law and Director of the LawCenter at the University of Oklahoma, effective August31, 1976. Dean Wright is planning to return to full-timeteaching at the College of Law there.

OU President Paul F. Sharp, commenting on Wright'sservice, said, "The last six years have been extremelyimportant to our College of Law. We have moved from alimited legal education program to a broadly based LawCenter complex which not only educates young lawyers,but also provides the state with a continuous educa­tional process for all those in the legal profession as wellas a focus point to legal juridical research."

Dean Wright served on the facu Ity of the Law School,University of Arkansas from 1963 to 1970, when he joinedthe OU faculty. He has contributed two articles to recentissues of The Arltansas Lawyer, and is the author ofseveral books and other legal articles. Dean Wright is amember of the Arkansas Bar Association and is aregular attendee at Association meetings.

of its main programs, and is now generally recognizedas the leader in the improvement of State criminal justicesystems of law.

In the January 1971 issue of The Arltansas Lawyer,Mr. Bethune published his article, "It's Assizetime in Ar­kansas". He will pUblish an update article in the July1976 issue.

ATTORNEYS REQUIRED TO REGISTER IN OHIOThe Supreme Court of Ohio has instituted a

registration rule for all attorneys admitted to practicebefore that Court, effective January 1, 1976. Registrationis $25 per year, payable biennially. Attorneys who wantto retain their right to practice before the Court mustregister regardless of whether they plan "active" or"inactive" status. Registration forms and further detailsmay be obtained from Clerk, Supreme Court of Ohio, 30East Broad Street, Columbus, Ohio 43215 (Telephone614-466-393) ).

RESPAIn the January 1976 issue of The Arltansas Lawyer, we

published an article on the Real Estate Settlement Pro­cedures Act of 1974 (P.L. 93-533; U.S.C. 2601 et seq.). Inour Editor's Note, we pointed out that "RESPA" was un­der fire in the Congress. On January 2, 1976, PresidentFord signed'into law P.O. 94-205, the Real Estate Settle-

continued on page 88

April 1976/Arkansas Lawyer/87

Addende,continued from page 87

ment Act Amendments of 1975. The new law repeals: therequirement of disclosure of the previous selling price ofproperty; the requirement for 12-day advance disclosureof real estate closing costs; and the Truth-in-Lending Actrequirement of a full statement of closing costs related toconsumer and home mortgage loans prior to settlement.(Other sections in the Truth-in-Lending Act continue ap­plicable to real estate transactions).

HUD has published new "RESPA" regulations in theFederal Register, dated January 9, 1976 - to be effective

as of January 2, 1976. HUD also intends to publish addi­tional proposed regulations for comment under sus­pended "RESPA" sections 4(b) and 5.

HUMANITIES SEMINARS FOR LAWYERSApplications from lawyers are being received by the

National Endowment for the Humanities for fourseminars in the summer of 1976. The seminars will betuition free with $1,500 to cover expenses. The programswill be held in Chicago, Illinois, June 7-July 1; Williams­town, Mass., June 28-July 23; Claremont, California, July12-August 6; and Tucson, Arizona, July 5-30. Applicationdeadline is April 15th.

ROBING CEREMONY

The Sebastian County Bar As­sociation presented robes to Ar­kansas Chancellor Warren O.Kimbrough, Chancellor BerniceL. Kizer and Circuit Judge JohnG. Holland at the impressive In­vestiture of Judicial Robes onOctober 29, 1975. Arkansas Su­preme Court Justice John A.Fogleman presided. AssociationPresident Robert L. Jones, III,welcomed the attendees. Mem­bers of the Bar of the TenthChancery Circuit and the Judg­es of the various local, state andfederal courts then joined to­gether for the taking of a grouppicture.

UNIFORM RULES OF EVIDENCE

The new Uniform Rules of Evi­dence were signed into law byGovernor David Pryor as Act 1143 of1976. The ceremonial signing wasattended by Senator Max Howelland State Uniform Laws Com­missioners Phillip Carroll andWilliam S. Arnold. ;'.,....~

88/Arl<ansas Lawyer/April 1976

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