A publrcatlOn of the ) Arklll/\(l\ Har ,\\wC/lIIiol1 •• II

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Phone: (501) 375-1606 Fu: (501) 375-1901 Ilomepage: www.arkbar.com

I. ... Mail: ahubb.lrd@larkbar.com

EDITOR Anllil Hubbard

EXECUTIVE D IRECTOR KII"II K. HlluhlflJ

ASSOClATE EXECUTIVE D IRECTOR us'- R. Hnu/tTJ(J1I

EDITORIAL BOARO

Philip 1:.. Kaplan, Chair

Judge Wiley A. Bnnlon, Jr.

Michelle Il . Cauley

Millon Fine. 11

William O. I laught

Jim L Juli:.m

Mary Ik lh M:mhews

Gordon S. R:nher, Jr.

ChrislOpher Tnvis

David H. Williams

Teresa M. Winebnd

OFFICERS Prcsldent

Ricba rd L. Ramsay

~rd of Governors Chair

D avid B. Vande:.-gtiff

I'resident-Elect

Rosali nd M . M owe:r

Immreliue PUI Prt'Sident

J amd D. Sproll Sccrelary-T TCUUm"

Wilti lUII A. M lmin

l'artiamenlari.;c,1l

J. Lwn Johnson Young Lawyers Section C hair

Amy Frttdntan

BOARD OF GOVERNORS

'''omu M. Carpenter Niki T. Cung

Richard C Downing

Causley Edw;lrds

David M. Fuqua Ch.;c,rld L H.;c,rwdt

Amhony A. Hilliard Cokllc O. Hononblc

Jim LJuli.iln

Scan T. Kcith

Roy Bc:lh Kdley

Hmy A. Light

Chalk S. Mitchell

Dollll.il C. Pelt us

Charles D. Roscopf, Jr. Todd M. Turner

John T. Vines

Eddie Ii. Walker

Dennis Zolpcr

UAlSON MEMBERS

Kam1 K. Hutchins Slc:vm W. Qu.;c,ltkNum

Jack McNulty Zane A. Chrisman

J~Jobn Dan Kemp Carolyn B. Witherspoon

Judge Michael Robinson

TIN .tn./lUU u .yrr (USPS S46.(40) IS publUhfd quutrrly by the Arbn~ ~ Af4oaatoon. r~lC"b posug<' pard al Lillo: Rock, A.ka~ 1>QSTM.AS'fER; KJId ~rCSI dungc:s 10 77H A'*-_ u~, 222-4 CoIlorwbk u .... , Luk Rock, i\rbnw; 722Q2. Suhknptoon pr>CI: to non ·n~f>lbm or the- i\rbru;u Ibr Auocu.liOf1 $.35.00 pn yeu_ Ally opinion e>:pl'QJftll>emn is llul or lhe aUlhor, and ~ nco:uanly tlul of (he Al-i<uu:u ~ ~1I0n or TIN A"10.",,,.., ~"'Y"' CAnrnbuuonl 10 7l.r .... ...... IUU u -;yn an: wdromc and IMuid be ~'n 10 Anna Ilubban!, FAi .... , ahub­I>:..rd(hrkba •• oom. AU inquI/i(s rtprd""lIdvenislnll should be toll 10 EdItOf. n.. A ..... _ ~IIIJ'", a l (he ~ :odo:irQt.. Copyripll 2007, A,ufWIo Ba. Astociauon. All r.g.IJ~.

The Arkansas

awer features 10 Tort Reform Cases in the Arkansas Supreme Court Jess Askew 11/

14

vol. 42. NO. 4

A Plaintiffs' Attorney's Perspective on Act 649 of 2003: What is it Really? Brian Brooks

20 The Charitable Immunity Doctrine Where are We Now? Michelle H. Cauley

18 Practice Tips It Isn't Just in Federal Cases, Anymore Todd L. Newton

24

,

Arkansas Supreme Court Historical Society Noteworthy Arkansas Jurists: Three Men Named Holt Jacqueline S. Wright Walker

28 Book Review- Lost Kingdoms by Phillip McMath Vic Fleming

Contents Continued on Page 2

/

The Arkansas

awer Vol. 42. No. 4

in this • Issue CLE Calendar 25

Arkansas Bar Center Memorial Border 26

Lawyer Community Legacy Awards

Judicial Advisory Opinions

29

30 On the Cover

Lawyer Disciplinary Actions 31 Photography by Andy Taylor and Tasha Sossamon Taylor

In Memoriam 50

Arkansas Bar Foundation Memorials and Honoraria

51 columns President's Report Richard L. Ramsay Classified Advertising 52

Young Lawyers Section Report Amy Freedman

CO!D • Arkansas Bar Assoc:latlOrl

lll~ Cottondale lane UtIle Rock, ArkafTh<l::' 72102

HOUSE OF DElIGATES

Delegate Db.trict loSE: Robert F. Thompson, III Delegate Olstric12-SE: lerric Grady

Delegate District 3-$£:: Barbara A Halsey. Mark Mayfield. Brant Perkins Delegate District 4-SE: Kathie A Kimbrell Delegate DIStrict 5-5£: Delegate District b·SE.: Marshall Wright Delegate OislricI7-SE.: Buck Gibson

Delegate District 8-SE: TIm A. Bbir Delegate District 9-5E: Brian Miller

Delegate District IO-SE: Anthony A Hilliard. Brandon Robinson OdcgJLc Oislrlcill-SE: Phillip C. Green Delegate District 12-SE: TImotl!Y leonard

Delegate 015Irlcll3-5E: Mattht.'w Shepherd. lames McMcnis Delegate District I4-SE: Matthew Kimmel. Amy Freedman

Delegate District 15-$E: Bryan T. McKinney. Tom Curry Dcleg~lIe District 16-SE: lon:lthan D. Jones. Jacob Hargraves

Delegate District 17-SE: Sam Gibson

Delegate District I-MV: Usa L Kelley. Jason 6. Kelley. Stephen Geigle. Vicki Vasser

Delegate District 2-NW: IJrock Showalter. Buddy Ch:ldick. David ,. Whitaker. Charles Harwell.

Tim Tarvin. Jason B. DUffy. Debby Thetford Nyc. Paul D. Reynolds. W. Marshall Prcl~yman. Bob Estes

Delegate District J-MV: Stephen Smith. lames O. Cox. An!y Click-Harada. Kimberly frasier. Rita Howard. Farrah Reider

Dclc!rtc OI<;lri("1 4-NW: Patrick McD:mici Delegate District 5-NW; Steve B. Davis

Delegate District 6-NW· Roy Beth Kelley. John c. Riedel

Delegate DistricI7-NW. Stephan Ilawks. Charles E. Clawson. III Delegate District 8-NW: lerry Patterson

Delegate District 1-(: V~lIerie Kelly. Gregory L Crow. Gwen Rucker. Randy Bueter. Mitch Berry. Sieve Bingham.

lacy Kenn<.:dy. C. Tad Bohannon. lerry larkov\,ski, Brian Vandiver. Mark McCarty. lay Taylor. ludge Beth Deere. leon Johnson. Rebecca Denison.

Michelle Cauley. David Glover. lay Shue. Elizabeth Smith. Brad L Hendricks. loci M DiPippa. i(h3)Y"Jnl Edding!>. Christian HarriS. Ka TIna I-lodge:

lefT Wood, Gill A Rogers. Mark Hodge, Brett Watson. Patrick Spivey. Danyelle Walker

I..aw Student Representatives: lacey larue. University of Arkan~a~ School of law: Allison RantisJ. UAlR William H. Bowen School of law

2 The Arkansas lm'1'er www.JrkbJr.conl

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President's Report by Richard L Ramsay

Horizon Lines, Scouting and Safe Eddies

As I write rhis article, I am sitting in the

President's Office of our new and spectacu­lar Bar Center, my temporary home away

from home. Two of the waUs of this office are glass and my view today is of an early sunrise reflecting on me downrown build­ings as rhe river rolls past our headquaners

toward dowlHown Lirtlc Rock and on into

Arkansas' Delta. It is a unique and inspi­

rationa l view. The inspiration for me is (0

continue the analogy likening this bar year (Q a river trip.

Ho ri.z.on Li nes

When a whitewater boater sees a horizon

line, he or she knows something different

and , usually. difficult is abom to happen. A

horizon line is the view you get when you

see the river JUSt disappear. meaning a steep

drop is in your immediate future. The prob­

lem that is created by a horizon line is that

you have no idea what is JUSt over the lip of

the waterfall , making it impossible to know

which direction to go.

Until now, our long range planning con­

sisted of a snuJl mecring of key people at

john Stroud's cabin on Lake Greeson. It

is a wonderful retreat and Judge Stroud's

hosp ita lity is unequaled. We are ab le ro plan

our cou rse of action for the coming year at

this meeting. The best idea from this year's

meeting was Immediate Past Presidem jim

Sprotf's suggestion that we increase our

efforts at long range planning; to be more

focused and more «'ong range." I have,

through lhe Southern Conference of Bar

PresidelHs, become fri ends with j anct Ward

Black, me current Pres ident of the Nor<h

Carol ina Bar Association. Through this con­

nection, we had Ms. Black make a presen­

{arion at ou r recelH Board of Governors

meering which was held at The Lodge on

Mount Magazine. Shortly afrer her impres-

sive presemadon, our Board of Governors

authorized me to form a long range planning

committee consiscing of Governors from the

three bar districts, as wel l as representatives

from the House of Delegates and other bar leaders. Just as a river changes. the world and

the practice of law is changing rapidly (pun

intended). I have asked Jim Julian of Little

Rock to lead this important commirree.

Under his leadership , I am confident that

the Association wi ll choose the righ t course

as it navigates its future .

Scouting Additionally. In order to travel me dif­

fi cult and unknown sections of a Stream

successfully, a river runner often StOpS, gets

out of his/her boat, and scours a panicularly

challenging rapid . This is a safety precaution

that allows the paddler to evaluate the risk,

determine the options on how to run the

rapid and assign rescuer positions to ensure

safe passage.

Once again. rhe river analogy fits. Every

few years, me Association conducts a survey

of iu membcrs to evaluate whar we are doing

wel l and where we need improvement. Since

the last survey. mken in 1998, the legal

profess ion has changed greatly. For that

reason, [he time has again come to do some

scoming. John Vines of Hot Springs. serving

as the Chairman of our Member Benefits

Committee, will head up a new survey

planned for this year.

Speaking of changes, this survey will be torally online and probably in a series offoUT

separate inscallmenrs. Please be on me look­

Out for this survey and respond promptly.

Our Association is member driven. It can

only be whal you make it. This means of

"scouting" will go a long way lOward improv­

ing the future of dlC Association. My goal is

ro make this great o rganization even better.

Safe Eddies In the paddling community. there is an

educational process used to equip our pad­

dlers with the knowledge abom how to lise

the river's obstacles to their advamage. One of these rools is rhe safe eddy. Paddlers are

taught how to use techniques that allow

them to find a spor of calm water when the

river is raging around them. It is a comforr­

able feeling to have this knowledge and use

it. I n short, educa tion prevcnts problems.

Again, rhe analogy fits. Youth in our

society today are faced with problems and

temptations far beyond what most of us

realiz.ed and encounrered in our young lives.

As the world grows smaller, and more and

more complex, young people are exposed

to the potential for persona] problems on

a regular basis. Former President G lenn

Vasser first approached the idea of ramping

up rhe Association's involvement with law

related education. Immediate Past President

Jim Sprott helped organize this effort and,

during this yea r, we hope to get it off and

running. Mark Hodge of Little Rock is

chairing this effort.

This program 's goal will be to expose

young people to the principles of freedom

- hopefully making (hem more informed

and bener citizens - to help them find the

"safe eddy" as they pick and choose their

way (hrough (hese difficult years. It wi ll be

taught by local lawyers to students in their

communities. Programs like Law Related

Education make me proud of ou r profession

and proud ro be an Arkansas L1WYCr.

Recognizing horizon lines. learning to

scour and finding safe eddies. Knowledge

helps young people ro successfully navigate life's difficulties, and helps us to deal with

the changes, and challenges, of our hono r­

ab le profess ion. •

Vol. 42 No. 4/ Fall 2007 The Arkansas Lav,y cr 5

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The Arkansas Bar Association staff is here to assist you.

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Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer 7

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Young Lawyers Section Report by Amy Freedman

Arkansas Young Lawyers-Serving the Community with Enthusiasm

Ralph Waldo Emerson once said thac " nothing great was ever achieved without

enthusiasm." I think this quote aptly fi ts the

Arkansas YLS. From literacy projects [ 0 our

new divers ity youth project, we volunreer

O Uf time wi th passion. sinceri ty and grea t

enth usiasm [0 help our communi ty.

The Ark.1J1sas YLS Execurive Council

began the bar year with a ban g at our annu­

al fall retreat held on September 7. The

Cou ncil is blessed this year with "veteran"

members who arc extremely experienced

in rhe YLS-Gwcn Rucker, Counney

C rouch, H . Wayne Young. Paul Benllen , Eddy Domall , Farrah Fielder, Bill Horron,

KaTina Hodge and Tony Juneau. These

seasoned members of O Uf Council offer

grea t leadership and experience. Likewise,

we are equally fortunate m have our new­

est Counci l members, Tasha Sossamon

Taylor, Wi ll C rowder, John Houseal, Vicki

Vasser and Brendan Monaghan. Each new

Council member brings fresh ideas and

energy m the Council , which will take us

into the future.

At the afternoon long retrea t, we dis­

cussed a fu ll year of communi ty se rvice

projects, ideas for future projects and ways

m make our scction better serve the needs

of its mcmbers while working hard to meet

the goals of the Arkansas Bar Association .

After the long day, we had a fa bu lous recep­

tion with good food and beverages followed

by an excellent dinner at T he Brave New

Restaurant. It was a tjme for our Council

to break bread mgether and have a time of

fe llowship and fun mgcrher after working

hard on Council busi ness.

In last mo nth's column, I unvei led to you

the newest Arkansas YL5 project, "Choose

L,w: Diversity Outreach," which is being

funded with a grant from the American

Bar Association. This project is extremely

timely in light of the 50th anniversary of

the Centra] High experience and the mov­

ing tribute to the Little Rock Ni ne. W ith

the YLS Diversity Outreach project, we

will be reaching our to minori ty high school

and coUege students in an effort to show

them that law is a profess ion fo r al l people.

Plans are under way to bring this project to

the four corners of Arkansas at local high

schools. We wi ll a1so have programm ing at

the University of Arkansas at Pine Bluff. If

you are in terested in volunreering for this

worthwhi le project, please contact KaTina

Hodge, Divers ity Project C hai r at KaTina.

Hodge@arkansasag.gov. This is such an

impon anr project, and we want to get you involved.

Looking ahead, the YL5 bar year is

ex tremely active. In September, we began

our fifth year with the Arkansas literacy

project in Texarkana, Arkansas. T his proj­

ect origi nally began duri ng the year that

Mark Hodge was the Chair of Lawyers

for Literacy. The project involves young

lawyers "adopting" an entire fourth grade

class at Fairview Elementary School. This

year, the students are chal lenged to read the

book, "Charlone's Web" over the course of

the school year and pass a proficiency tCSt.

In the spring, the students wi ll be rewarded

with a pizza party and a viewing of thc

movie. h is a project that the young lawyers

look forward to every year since it insti ll s a

lifelong love of reading in the chi ldren.

T he Arkansas YLS hel ped host the

Southern Confe rence of Bar Presidents on

October 11 ,2007. Brendan Monaghan and

Will Crowder arc the Co-Chairs for the

YL5 Host Com mittee and actively recrui ted

volunteers. The young lawyer volunteers

picked up the incoming bar pres idents and

their spouses or guests at the airport and

transported them to the Capi ta l Hotel.

We were pleased to play such a vital role

in hosting these folks. The YLS rolled out the Arkansas '" Razorback Red" carper and

showed our gues ts the fi nest in hospitali ty.

O n November 2-3, 2007, the Arkansas YLS will hold the an nual "Bridging the

Gap" C LE course at the UALR Bowen

School of Law. This C LE course is the

mOSt important training for new attorneys

in Arkansas. It is designed to help the new

lawyer learn what to expect in the real world

of practicing law. T he program also estab­

lishes a standard of un ifo rm excellence in

the practice of law fo r Arkansas attorneys.

In this way, all new attorneys know what

is expected of them as they enter new legal

jobs. Th is year, Eddy Doman and H . Wayne

Young have worked hard , along with Bar

staff, to put together a dynamic curriculum

with two tracks of programmi ng. "Bridging

the Gap" follows the Arkansas Professional

Practicum held on November I , 2007,

and is an extremely worthwhile course. I

encourage you to attend. I n short , the YLS is a ball of energy and

enthusiasm. Through our many projects, we

will impact the lives of childrcn and the less

fortunate in a positive way. We also hope

to do tremendous service [Q the Bar. T he

YLS is your "home" after law school, during

those early years of practice where you will

undoubtedly make lifelong fr iends. Don' t

wait; get involved now! We are ready to get

to know you and get you involved! •

Vol. 42 No. 4/ Fa ll 2007 The Arkansas Lawyer 9

Although the adoption of [Orr reform legislarion in Act 649 of 2003 created a StOrm of passionate and far-reaching arguments among lawyers and legal commenrators,l the subsequenc course of litigation in the Arkansas Supreme Court has been marked by restrai nr and careful selection of cases and issues. Several Act 649 cases have reached the Court, bur only one, Summerville v. ThrolJ)er,l has been decided on the merits of an Act 649 issue. This arricle will repon on the cases that have reached the Supreme Court because this is where the law of Arkansas wi ll be made; federal courtS have ruled on Act 649 issues and will continue to do SO,3 but those deci­sions will only be educated predictions about what the Arkansas Supreme Coun may ul timately decide on those questions. of

The Supreme Court's Selectivity in Tort Reform Cases A week before handing down its opinio n in Summerville v. Thrower,

the Supreme Court d ismissed an appeaJ in McKinlley v. Bishop,' a case that anempted [0 ra ise the same issue presented in Summerville as well as seeking a declaratory judgment that additional sections of Act 649 were "unconstitu tional or otherwise invalid." The plainriff had named ten "John Doe" defendants and had fa iled to obtain a fi nal order on the claims against those anonymous defendanrs. Even though no parry raised this issue, the Supreme Court addressed the lack of a final judgment as a barrier to its own jurisdiction, and it

10 The Arkansas Lawyer WW'IN.arkbar.com

dismissed the appeal withour prej udice. At that time, Summerville v. Thrower had already been argued and was under submiss ion.

Similarly, in Shipp v. Frtlnklin,6 the Coun dismissed the plaintiffs challenges to Act 649 as moO[. T his rul ing requ ired careful analys is of (he posm re and histo ry of the case. T he plaintiff had sued twO

alleged joint ro rtfeasors, Franklin and Sanders, and argued that the limitations on joint and severall iabili ry in ARK. CODE ANN. § 16-55-20 ) were unconstitutional. The plaintiff also argued that her med i­cal bills were $44,497. 19, buc chac ARI<- CODE ANN. § 16-55-2 12(b) limi ted her evidence of medical bills to $ 16,478.64 as the amount paid by her or on her behalf, or which were unpaid and remained the liabili ty of the plai ntiff or a third parry. Before trial, the plai ntiff had serried with Sanders, and Franklin retained third-party claims agai nst Sanders. At trial. the jury found Sanders co be 100% at fault.

T he Court decided that reviewing the const itutional questions would have no practical effect on the case. Sanders was the only party at faul r, and rhe mod ifi cation of joint and several liabili ry in §

16-55-201 did nor man er because twO or more people must be liable in [Orr for the plain tifPs injuries for the change to come into play. On the issue of proof of medical bills. the plaintiffs settlement with Sanders and the jury's exoneration of Franklin ended any chance of a retrial where rhe question could come up.

These decisions reAect that the Court is exercis ing great care and

deliberation in review­ing issues under Act 649' In view of me constitutional tensions between the Supreme Courr and the General Assembly thar surfaced in Summ~rvi"~, this is a wise course.

Substance v. Procedure in Summerville

Summerville raised a question concerning the consticutionaliry of the reasonable-cause affidavit requirement of ARK. CODE ANN.

§ 16-55-209(b)(3). Section 209 in gen­eral is concerned with

establ ishing reasonable cause in any action for Illedjcal injury. If experr testimony is required in the case, [hen § 209(b)(i) scares that reasonable cause may be es tablished only by an affidavit of an expert in the same type of medical care as the defendant, and § 209 (b)(2) requires

the affidavit to scate with particularity the experr's qualifications and familiarity with the applicable standard of care, how the standard of care has been breached. and how the breach resuIred in injury or deadl.

Section 209(b)(3). the provision at issue in Summervill~. requires that the affidavit estab lishing reasonable cause be filed widlin 30 days after the complaint is filed. Failure (0 fil e the affidavit within 30 days after the complainr is filed subjects the party or lawyer who signs the complaint to sanctions under § 209(a) and requires dis­missal of [he complain[ under § 209(b)(3)(B).

Tomosa Summervi lle's complaint alleged daims for medical injury against an obstetrician and a licensed nurse practitioner. She fa iled to file a reasonable-cause affidavit within 30 days after her complaint was filed. In response to a morion to dismiss, her lawyer submitted an affidavit asserting that the lawyer had researched the medical issues and was convinced that the plaintiff had a valid cause of action. Her

lawyer also stated that the plaintiffs obstetrical expert witness had agreed to testify but had been [00 busy to prepare a reasonable-cause affidavir. The trial Court upheld the 30-day filing requirement of §209(b)(3)(A) and dismissed [he action under § 209(b)(3)(B).

Arkansas lawyers will recognize in the dismissal requiremenr an echo of a rule from the Medical Malpractice Act that the Supreme

Court struck down in Weidrick v. Arnold.s Weidrick addressed the sta(U(ory requiremem that a plaintiff provide 60 days' advance notice to a medical malpractice defendant before filing suit. The Court rejected this StatU(ory requirelllem as in direct conAic( with Rule 3 of the Rules of C ivil Procedure, which governs the commencemcnt of a civil action. Tomosa Summerville argued that Weidrick required the same result in her case.

The Supreme Coun made short work of the 30-day filing requirement, reject ing it as a violation of the separation of powers doctrine of the Arkansas Constitution. All seven justices found the filing requirement unconstitutional. Justice Brown, joined by Chief Justice Hannall and Justices Corbin. Gunter and Danielson, held the 30-day filing requirement unconstitutional for conAicdng with Rule 3 on the commencement of a civil action, applying the reasoning used in Weidrick. JUSt as Weidrick rejected the 60-day-advance-no­tice requiremem as "an added encumbrance for filing a complaint," these five justices concluded that the 30-day post-commencement filing requirement was a "legislative encumbrance to commencing a cause of action that is not found in Rule 3."10

Justice Imber, joined by Justice Glaze, concurred in the result because they found the requiremem of mandatory dismissal incon­sistent with the provisions of Rule 1 1. They reasoned that the

reasonable-cause affidavit of§ 209 in general mirrors [he reasonable­inquiry requirements of Rule II without con fli cting with it, bur that the mandarory dismissal required by § 209(b)(3)(B) is a panicular sanction thar conAicts with the discretionary range of sanctions avai lable to a trial court under Rule 11 , and that the statute provides no opportunity to withdraw or cure the pleading defect, in conflict with the cure opporrunity provided by Rule J I.

Both opinions starr from the same premise. If a procedural matter is governed by one of the Rules of Civil Procedure, (hen the General Assembly has no power to pass a statute that conAjcts with the Rule. From a constitutional standpoint, this reasoning is unassailable in light of the adopdon of Amendmenr 80. Section 3 of Amcndmenr 80 gives the Supreme Court exclusive power [Q estab lish rules of pleading, practice and procedure in the sta te courts.1I The exdusive power of the Supreme Court in this area is more firmly established under Amendment 80 than ie was when Weidrick was decided in 1992.

The d.ifficul ty is not in stating this principle of the separation of powers, but in applying it. Justice Imber's concurrence neatly found twO direct conAicts between the Statutory filing require­ment and Rule I I of the Rules of Civil Procedure. The conAic[s are stark: the seature compels a specific sanction of d.ismissal

Jess Askew III isn member o/Williams a-A"deNon PLC ,uhere he speciaLizes ill business Litiga­tion. employ­mellt law and medinlaw.

Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer II

"Whether an unconsti­

tutional conflict requires

actual inconsistency or a

simple legislative trespass

may be an issue of con­

stitutional doctrine that

the Court will develop in

future cases."

inconsistency bct\vecn the statutory requiremenr and

[he judicial rule of procedure. so that it is necessary to determine which of the twO inconsistent rules is supreme. Justice Brown's nOlion of"conAicr" seems ro turn on whether the General Assembly is legislating in

an area that is reserved (0 the COlin under Amendment 80. Whether an uncol1sri[Udonal connil.l requi res actual inconsistency or a simple legislative trespass may

be 3n issue of constitutional doctrine that the Coun will develop in future cases.

where rhe Rule provides broad discretion ro dlC [rial court, and

the stature provides no opportunity to cure where rhe Rule does.

Because of these direct conflicts. rhe supremacy principle embedded in Amendment 80 favors Rule 11 and overrides the statuce.

The conflicr with Ru le 3 is nor so direct. The s[acute does nOt

es tablish any additional condition to the commencement of a law­suit under Rule 3; Ms. Summerville was able to and did file (and

merefore commence) her lawsuit under Rule 3 without a reason­

able-calise affidavit. The statute did not add a filing requirement that was inconsistent with the rules for commencing a lawsuit under

Rlile 3, and the defendants in Summerville argued this as a reason to

distinguish Weidrick and uphold the post-commencement affidavit

req.uiremem. The issue under the statute arose 30 days after the

action was commenced. justice Brown's opinion addressed this argument forthrightly:

"There is linle, if any, practical difference in this court'S mind

between :1 mandarory legislative requirement before commencing a

cause of action like we had in Weidrick and a mandatory require­

ment within thirty days immediately after filing a complaint such as we have here. Both procedures add a legislative encumbrance to

commencing a (;;.tu:,c or action that is nOt found in Rule 3 of our civil rules."1 2 The Court made dear that its concern was with the

«gotcha" effect of the statuce; a properly commenced lawsuit would

have to be dismissed if the reasonable-cause affidavit were not filed wichin 30 days. "The conscitucional infirmity in § 16-114-209(b) is me provision for dismissal if the affidavit does nOt accompany a complaint within thirty days. "13

Is the post-commencement filing requirement of the statute reaJly in conRict wim the commencemenc requirements of Rule 3? Not

for the first 30 days after commencement, but on the 31 st day me starutory requiremenr functions like a condition subsequent, or a

poison pill , that requires dismissal and therefore defeats the proper commencement of the action. The majority concluded that me

sratucory requirement mUSt fal l to Rule 3 bec.1use the statute adds an "encumbrance" to filing a lawsuit that "is nor found in Rule 3."1.

This notion of conflice is slighrly different from me one inherent

in Jusrice Imber's opinion. A statute can add to the requirements of court ru les without comradicting them, as justice Imber observed in her concurrence with respect [0 those portions of § 209 mat

are consistent wim Rule 11. Bm justice Brown's opinion rejected the staUltory requirement as an encumbrance rhat is not found in

Rule 3. justice Imber's notion of "conRict" seems to involve actual

12 The Arkansas Lawyer www.arkbar.com

Lessons? It is toO soon to try to draw lessons from the Court's

treatment of Act 649. Certainly the Supreme Court

has been careful in examining the cases that attempt to

raise ques tions about Act 649, and it is appropriate ror the Court

to review its jurisdiction closely before it accepts 3n issue where a

party wanes it to annul an Act of the General Assembly, especiaJly

when the challenge involves dle rule-making power of the Supreme Court itself. The Court should be cautious when it has an interest as both rule-maker and ultimate arbirer of:1 dispute involving one

of i[5 rules.

The constitutional doctrine involving Amendment 80 bears more

development. Is legislaeion unconstiwtional simply bec.1 11se it tres­

passes on terrirory reserved exclusively to the Supreme Court for rule-making, or will the Court look for actual inconsistency between

the legislative and the judicial rules , so that it is necessary to deter­

mine which is supreme? Finally, the narrow decision in Surnmervili~ sheds no light on the

numerous orner constitutional challenges being made on the provi­sions of Act 649 in the trial courts by its opponents. Even on the

isolated question of whether a provision of Act 649 conflicts with

me Amendment 80 power of the Supreme Court to regulate state­

court practice and procedure, Summerville leaves many qucstions unanswered. For example, the much-maligned punitive-damages bifurca tion requirement of ARK. CODE A NN. § 16-55-2 1 I is often

assumed to be Ullconstiwtional as in conflict WiUl ARK. R. eiV. P. 42(b), which provides discretion to order separate trials. Bur Rule

42(b) deals with separate trials, while § 21 1 addresses the order in

which the finder of fact shal l determine issues concerning punitive damages. These are different matters. Even if they were the sam e

matter, it is likely that many trial courts will exercise discretion to

order a separate trial on punitive damages under Rule 42(b) in order to minimize the prejudice of punitive-damage evidence. Justice

Glaze has suggested such a bifurcation may be mandatOry, nor jusr discretionary: "Upon remand, should me court conclude that the

prior convictions are admissible pursuanr to ARK. R. EVID. 403, it

would be necessary to bifurcare the punitive-damages phase of me trial pursuant ro ARK. R. elV. P. 42(b)."I $

If Rule 42(b) requires biFurcation of punitive damages in a case, men there could be no conflict with the statutory bifurcation provi­

sion. It is for reasons like these that it is not poss ible ro read rhe tea

leaves from Summerville.

Endnotes 1. A brief bibliography of the articles is included here for the

Endnotes continued on page 46

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A Plaintiffs' Attorney's Perspective on Act 649 of 2003: What is it Really?

By Brian Brooks

s ecrion 26 of Act 649 of2003 in essence claims that some degree of "tort reform" is necessary lO Stop medical­

malpractice liab ili ty carriers from leaving Arkansas. While

the va lidiry of rhar claim is suspect, what is more trou­

bling is thar Acr 649's provisions seem lO have Ertle or nothing lO

do with medical-malpractice rares and coverage. The entire practice

of personal-injury law was transformed by the enactment of this

single piece of legislation. "The Civil justice Reform Act," which is

anything but, is unlike other legislative reform measures that came

berore ir in that in rouches every personal-injury case filed in any

coun in this state. What that has to do with medical-malpractice

rares is a mystery yet to be explained.

14 The Arbnsos low)'er www.arkbar.com

Ie seems appropriate, therefore, ro examine [his so-called "ton

reform " measure and set ferch what it actually is and does. At the

outset, however, biases must be revealed. I am almoS[ exclusively a

lawyer for injured plainciffs. While I was in law school, 1 clerked for

a man who eventual ly became Chief Justice of the Arkansas Supreme

Court. In one of his fatherly lectures to me (and I mean that in [he

very most complimentary \'V3y) he expounded on the differences

between lawyers for plaintiffs and lawyers for defendants. The short

version of the story is that [he two categories of lawyers do, indeed,

thi nk differemly, and their viewpoints and 3nirudes about the law

reAect those differences. The words that follow come from an admit­

ted and unabashed attitude as a lawyer for injured plaintiffs.

ACf 649 OF 2003: What it Does

Act 649 of 2003, emirled "An Act to Provide Comprehensive and U niform Civil Justice Reform; and fo r O ther Purposes," and sub­

tided. "The Civil Justice Reform Act of 2003" was enacted by the Arkansas General Assembly and was signed into law by the Governor

on March 25, 2003. In summary fOfm , here is what the Act does:

•

•

Effectively abolishes joint and severalliabili ry; rea tcs a new system of dividing fault among severally li able

defendants, diminishing recoveries by plaintiffs; C reates "non-parry" fault (creating an "empty chair" defense);

Limits punitive damages recoverable; Raises rhe burden of proof needed ro eS[ablish cmirlemcm [Q

punitive damages;

D ic(3cCS evidenriary standards in proving puni tive damages;

Requires courts to bifurcate proceedings in punitive damages claims;

C hanges venue rules in unfai r ways;

C hanges burden of proof and limits admissibili ty of certain evidence favorable co plainti ffs;

Requires morc lISC of experts and dictates evidentiary stan­

dards regarding experts; and

Requires expert affidavits as a precondition of filing medical malpractrice actions.

When one thinks of "refo rm ," notions of a balanced critique of the

law and alteration of outmoded rules causing illogical and unwar­ranted results come ro mind. " Reform s" in that sense affect all sides

of an issue equally and appropriarely. Acr 649 manifestly is nor

"reform " ofrh ar type. Whar should stand Out about rhis summary is

rhat every provision in Act 649 works against rhe injured victim and in favo r of the corrfeasor. T hus, Legislative euphemisms are pervasive

in Act 649. The tide is "The C ivil Jusrice Reform Act" when it is

nothing of the SOrt. A ben er title would have been "The Impediment ro T ort Recovery Act" o r "The Impediment to Public Safety Ac(. "

The pervasiveness of Act 649 should aJso stand out. Much of whar

is set fo rth above has no thing at all co do wi th the sta ted purpose of

Act 649 contained in Section 26. These measures touch every type of personal-injury suit, from car wrecks co toxic spills.

This reality sets Act 649 apart . Arkansas has endured previous

rorr-reform measures, blH none so all-encompassing as Act 649. The

medical -malpractice act is torr reform in that it ahers the pracrice of

personal-injury law in actions for "medical injury." The Workers'

Compensa tion Act and changes ro it pushed through the legislature in the 1990s are "tort refo rm" in thar they altered the previous

methods fo r assessi ng and compensating for workplace injuries. " Reforms" such as the medical-malpractice act and the workers com­

pensation act, however, "reformed ," o r erected obstacles fo r injured

people, only in discreet areas of the law. Act 649 reaches beyond these previous "rorr reform " measures.

The pervasiveness of Act 649 can be seen from a closer exam ina­tion of some of its provisions. Section I of Act 649 el iminates jo int

and severalliabili ry fo r all practical purposes. While Sections 3 and

5 ostensibly restore jo int li ability in certain situations, they are of

no real effect. Section 3 allows less than full re-allocat ion of liabili ty when the share of liabil ity of one of mulriple dcfcndal1 cs is no r "rea-

sonably collecti ble." Section 5 maimains joi nr-a nd-several liabili ty in the classic, but unusual, situation where persons enter into a

conscious agreement ro pursue a common plan or des ign to comm it an in tentional ro rr.

Secrion 2 requi res courrs [0 adjudicare rhe fa ult of persons who

have nor been made, o r who could nOt have been made, parries to

the action. Section 2 thus requ ires the courts of Arkansas ro adju­

dicate the responsibilities of phantoms. It requires the courts (Q

find facts without benefit of adve rsary presentations from the nOI1 -

parries. Section 2 acknowledges the way it weakens the adve rsariaJ

system by precluding those faaual determ inations from being given any evidentiary value in other proceedings.

The heading for Section 1 refers to it as a "modification" of joinr­and-several liabili ty. That's nonsense. To refer to sectio n 1 and the

sections immediately fo llowing as a "modifica tion" of joint and

severalliabiJi ty is like saying Mark Martin 's srock car is a "modifica­tion" of the Ford he drives around Batesville. Act 649 eliminates

joint and several liabili ty; it doesn' t "modi fy" it. And it eliminates it

in every personal-injury and property-damage case in the state.

Section 15 of the Act is another example. It reads as fo llows in its emirery:

SECfION 15. Compensa to ry damages.

(a) This act does not limit compensatory damages.

(b) Any evidence of damages fo r the costs of any nec­essary medical care, treatment, or se rvices received shall

include only those COStS actually paid by, o r on behalf of,

rhe plaintiff or which remain unpaid and for which the

plain tiff or any third parey shall be legally responsible.

Section 19 of Act 649 contains a second aheration of the collat­eral-source rule for medical-malpractice cases. That section reads as

follows:

SEcrlON 19. Arkansas Code § 16- 11 4-208(a), con­

cerning damage awards in actions fo r medical injury, is

amended to read as follows:

(a)(J)(A) The damages awarded may include compensa­

rion fo r actual economic losses recognized by law suffered

by the injured person by reason of medical injury includ­ing, bur nor limited to, the COSt of reasonable and necessary

medical services, rehabilitation services, custodiaJ care, loss

of services, and loss of earnings o r earning capacity;

(B) Any evidence of damages for the cost of any neces­sary medical care, treatment, or services received shaJJ

Brian G. Brooks is a solo practitioner wbo fOClISt!S Oil npJHl­late practice atuJ complex legal researcb, writi1lg alU/advocacy fortbe plaintiffs bar.

Vol. 42 No. 4/ Fall 2007 The Arkansas lawyer 15

include on ly those costs actually

paid by o r on behalf of the plaintiff or which remain unpaid and for

which the plaimiff or any third

parry shall be legally responsible.

(2) T he damages awarded may include compensation for pain and

suffe ring and orner noneconomic loss recogn ized by law.

8m h section 15 and section 19 commit

the same wrong. T hey va riously purport nO( t'O "limit compens3t'Ory damages" and allow

the recovery of "the cost of reasonable and necessary medical services." Each section

then removes what it bes[Qws by prevelHing

any recovery for the full value of chose ser­vices by limiting the "evidence" of their cost

to the amOUlH "actually paid by or on behalf

of the plai lHifT or which remain unpaid and for which the plai lHifT or any third party

shall be legally responsible." Under this stat­utory scheme. a plai nti ff may nOt recover for

rhe COS( of medical care when his insurance

company negmiares a reduced rate with a provider. when Medicare or Medicaid nego­

tiates a reduced rate wi th a provider. when the plaintiff is unable to pay the full cost and a medical-care provider writes a portion of it

off or is simply unable to collect it, o r where

16 The Arkansas Lawyer www.arkbar.com

the ca re is provided as a gift o r by charity. This reali ty is a significant change in me law

of evidence and the law of damages because,

prior to the passage of Act 649. the precise

opposite result would obtain. M ontgomery

Ward 6- Co. v. And",oll, 334 Ark. 561, 976 S.W.2d 382 (1998).

Of course, these provisions have been successfully challenged on constitutional grounds in many cases around the state.

T he reason why is simple. Sections 15 and

19 very clea rly limi t damages fo r injuries in violation of Article V, section 32 of the

Arkansas Constitution. But that discuss ion is for another day and another article.

The point. for present purposes, is that

section 15(b) rears its head in virtually every personal-injury case. "Personal injury" usu­

ally results in "necessary medical care, treat­ment, o r services'" for the injured victim.

Mosr ofren the value of those services is discounted because of an agreement with an insurance company, an agreement with the

government. chari ty. o r rhe victim's simple inabili ty to pay the full charges. Under Act

649. the amount' paid. not the damage done. is admiss ible. This difference can be

signi ficant . I n any event, the rwo points of this exami­

nation should now be apparent . First. Act

649 reaches well beyo nd actions that would have any bearing on medical-malpractice

liab il ity insurance. It re.1ches all (on cases in

the state. Second. ir has nothi ng to do with "reform" in a [rue sense. It is directed solely

at the plai nti ff's case.

ACf 649 OF 2003: What it Is So, what is this rhing euphemistically

referred to as "rorr reform"? Cen ainly, it is

much more man an attempt to curb mal­

practice insurance rates because it appl ies to things that don ' t have any relationship

to medical malpractice. Likewise, it isn' t "reform " in the sense that it attempts ro

correct illogical and irra(ionai results in

antiquated laws. It is focused directly on the

plaimifF's casco "T orr reform " in th is sense is a really nice

way to descri be legislation mat makes it harder fo r injured people to recover for the wrongs done them and easier for [hose who

hurt them to escape responsibili ty for their harmful actions. "T ort reform" is really an

effort to erect obstacles [Q recovery for tor­

tious actions, and often those obstacles are artificial , having nothing at all to do with

proving an injury and who is responsible

for it.

Plaintiff Attorney continued on page 48

AMERICAN COLLEGE O F TRI AL LAWYERS

The Arkansas Fellows of the American College of Trial Lawyers are proud to anllounce that the 0110 wing Arkansas triallalVyers have been illducted inlO the Fellowship:

Bill W. Bristow - J onesboro David M . Donovan - Little Rock M ark A . M oll- Fort Smith William A . Waddell, Jr. - Little Rock

J . Michael Cogbill - Fort Smith Mariam T. H opkins - Little Rock J ohn E. M oore - Little Rock W. H. Taylor - Fayetteville

The American College of Trial Lawyers,jounded in 1950, is composed of the best of the trial barfrom the Ullited States and Canada. Fellowship ill the College is extended by invitation only, after careful investigation, to those experienced triallalVyers who have mastered the art of advocacy and whose professional careers have beell marked by the highest standards of ethical conduct, professionalism, civility alld collegiality. Lawyers lIlust have a minimum of fifteen years trial experience before they can be considered for Fellowship. Member· ship in the College cannot exceed J percellt of the total lawyer population of any state or province. Fellows are carefully selectedfrom among those who represent plaintiffs and those who represent defendants in civil cases; those who prosecute and those who defend persons accused of crime. The College is thus able to speak with a balanced voice on important issu.es affecting the administration of justice. The College strives to improve the standards of trial practice, the admin.istratioll of justice, and ethics of the trial profession.

The Arkansas Fellows of the College cOllgratulate the new members and welcome them 10 the Fellowship.

A rkallsas Fellows of the A mericall College of Trial Lawyers

Overton S. Anderson, 1/ . LillIe Rock · Donald H. Bacon, Little Rock · Woody Bassell, Fayetteville · R. T. Beard, III, LillIe Rock • David 1-1. Blai,; Balesville • James B. Blair. Springdale · Eugene Bramblell, Camdell • Phillip Carroll, LillIe Rock

• Rober, M. Cearley. Jr., Litlle Rock · Eddie N. Christian, FOri Smith· Catlzi Compton, Uttle Rock · Walter Bany Cox. Fayelleville • Sidney P. Davis, Jr .. Fayetteville · 10/111 C. Deacon, Jonesboro · B. Michael Easley, Forrest City · Jolm R. Elrod. Fayetteville

• Johll C. Everell, Fayelleville • Spellce G. Fricke. Lillie Rock · Johll P. Gill. Lillie Rock · Johll Robert Graves, Lillie Rock • William M. Griffill, III, Lillie Rock · WaYlle Harris, Fort Smith · Robert (Skip) L. Hellry. III, Lillie Rock · Jack W. Holt. Jr. . Lillie

Rock · Michael D. Huckabay, Sr., LillIe Rock · HOIi. Bradley D. Jessol/ , Fort Smith · Robert L. Jones, III. Fa)'elleville • Philip E. Kaplall , Lillie Rock · Judsoll Kidd. Little Rock · Charles R. Ledbeller, Fort SlItith • Johll G. Lile, Lillie Rock

• Ed LolVther, Lillie Rock · Stephell A. MatthelVs, Pille Blulf · Hubert S. Mayes, Jr .. Lillie Rock · Austill McCaskill, Sr .. Lillie Rock • Bobby McDaniel, Jonesboro · James Bruce McMmh, Lillie Rock · Toney D. McMillall , Arkadelphia · Palll McNeill. Jonesboro

• Han. James M. Moody. Lillie Rock · Nicholas H. Patton, Texarkal/a • John V. Phelps, Jonesboro · Odell Pollard, Searcy • Gordon S. Rather. Jr .. Little Rock · Ellol/ A. Rieves, III. Wesl Memphis · KeJ1l J . Rubel/s, Wesl Memphis · DOl/aM S. Ryan, Little Rock · Dellllis L. Shackleford, EI Dorado · James M. Simpsotl, Lillie Rock · Douglas O. SlItith , Jr., Fort SlItith • David Sololltoll.

Helella · William H. SUIIOII, Lillie Rock · Rex M. Terry, ForI Smilh • Floyd M. Thomas. Jf:, £1 Dorado · Frederick S. Ursery, Lil1le Rock · Eddie H. Walker. Jr., Fort SlItith • Richard N. Watts, Lillie Rock · /-1011. Williallt R. WilSall. Jr., Little Rock · Alall G. Wootell ,

Fort SlItith • 7ildell (Chip) P. Wright, III , Fayetteville · Charles R. Zierke, Not Sprillgs Village

Vol. 42 No. 4/ Fall 2007 The Arkansas Lm'Yer 17

Practice

It Isn't Just In Federal Cases, Anymore

By Todd L. Newton

Several yea rs ago, there was a televi­sion commercial advcnising Florida o range juice. As it played up the great msre and health benefits of drinking orange juice. rhe commercial ended with the saying, " Florida orange juice: it isn 't juSt for breakfast any­more." In rhe near future, I suspect we'll all be saying something simi lar about rhe rules governing electronic discovery. Let me see if I can explain.

In December 2006, amendments [0 the Federal Rules of C ivil Procedure went into effect covering how electronic evidence is to be dealt with in federal cases. Since char time, we've all been gcning versed in the nuances of "electronica lly scored informa­tion," "clawback agreements," "safe har­bors," and more. For those less enthusiastic ahom rhe amendments, I've often heard the following: "Those rules only apply in federal cases," and "We don ' r have ro worry abour any of mar stuff in srare court." As comforting as those rhoughrs may be for some, rhe reali ry is that electronically srored information isn't going anywhere. In f.'lct, the sta tistics all point out that elec­tronic evidence will conrinue ro increase. Consequently, states are gearing up to deal with it, and Arkansas is no exception.

On May 27, 2007, [he Arkansas Supreme Coun published proposed amendments to Rule 26(b) of [he Arkansas Rules of Civil Procedure and Rule 502 of the Arkansas Rules of Evidence. These companion amendmentS are designed ro prorect par­ties who inadvenendy disclose marer iai protected by either privilege or rhe work producr doctrine. These amendments gen­erally mirror their federal counterparts and are designed to provide some rel ief when an inadvertem disclosure of information takes place - particularly when dealing with volumes of elecrronic evidence. As the Reponer's Notes sra te, "Lawyers do their best to avoid mistakes, bur they sometimes happen. Discovery has always posed the risk of the inadvertent production of privi­leged o r protected material. The advent of elecrronic discovery has only increased the risk of inadvertent disclosures. This amend­ment addresses th is risk by creating a pro-

18 The Arkansas Lawyer www.arkbar.com

" ... the reality is that electronically

stored information isn't going any­

where. In fact, the statistics all

point out that electron ic evidence

will continue to increase."

cedure to evaluate and address inadvertent disclosures, including disputed ones."

The amendment to Rule 26(b) adds a new paragraph ('5) that specificaUy crea tes a mechanism for asserting a claim of privilege o r artorney work product after the mate­rial in question has already been produced. Proposed Rule 502(e) provides that the disclosure of information covered by either the attorney-cliem privi lege or the work­product doctrine does nor waive the privi­lege as long as rhe disclosing party follows the procedure se t out in Rule 26(b)(5) and the Court makes the requisite findings.

So, under these rules, how do you ensure that your claim of privilege is not waived because you inadvertently disclosed privi­leged or prorected info rmat ion? First, within fOllrreen (bys of discovering the inadvertem disclosure, you mUSt nori fy the opposing party by specifically identifying the material or information disclosed and asserting the privilege or doctrine protect­ing rhat mate ri al or informat ion. Second, you must amend any responses to written discovery accordingly. The receiving party then has fourteen days afre r receipt of the norificarion to rerum , seques ter, o r des troy thc materials, including copies. However, the receiving party may also challenge the claim of privilege o r protection, including the (imeliness of the notice or other circum­stances demonstrating a valid waiver.

In determining whether a waiver has occurred , the cou rt must consider four fac­tors: (1) the reasonableness of the precau­tions that the disclosing parry rook to pre­vent inadvertem djsclosure; (2) the scope of discovery; (3) rhe exrenr of disclosure; and (4) the interests of justice. It is worth not­ing that the first factor makes its clear that a wholesale release of information wirhout

reasonable review to prevent an inadvertent disclosure will certainly weigh aga inst a disclosing party's subsequent attempts to claim a privilege. In chis regard, the rule speci fically provides that an artorney can testjfy abom rhe disclosure and the steps taken to prevent an inadvertent disclosure without having to rerminare represenrarion in the case.

At this time, these proposed amendments have not been adopted by the Arkansas Supreme Court. The deadline for com­ments was August I , so we will have to wait CO see how the court responds to any of the feedback concerning these amendmems. However, while we wait for that decision, it makes sense to start raking sreps now to

ensure that should an inadvertent disclo­sure occur at some point, we're ready to

promprly respond. First, we should be learning now about

the types of information our clients are reraining and what their record retention policies are so rhat we can be prepared to respond to a discovery request seeking electronically stOred info rmation. Second, we should work with our clients to qu ickly determine what electronically stored infor­marion may be privileged or subject to protection , including segregaring that infor­mation in advance if possible co ensure that it doesn' t get disclosed in the heat of the discovery process. Third, once the discov­ery process commences, we should keep track of the steps taken during the review of materiaJs prior co disclosure to ensure thar an inadvertem disclosure does not happen so thar we can es tablish for the court later, if necessary, that the re was no intentional waIver.

By bei ng proactive, we can take advan­rage of these amendments and ensure that we don 't waive any privileges. That's a good safety ner to have beneath the tight rope of electronic discovery; assuming the Arkansas Supreme COlirt adoprs these pro­posed amendments, this safety nct won't be just for federal cases anymore .•

Todd L. Newton is counsel for Mitchell Williams i ll Little Rock.

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Vol. 42 No. 4/ Fall 2007 The Arkansas I.<Jwycr 19

The Charitable Immunity Doctrine /'

ere Are We No By Michelle H. Cauley

In the Beginning

Fo r over 100 years Arkansas has recogniz.ed the doctrine

o f charitable immunity. Su, Fordyce I). Women s Christiall

NII/ional Libraryksn, 79 Ark. 550,96 S.W. 155 (1906). T hat is nor ro say that the doctrine has remained the same

since 1906. In fact, during rhe last fi ve years alone [he donTine has gone through several inrerprerations [hat o ne could arguably say

have turned the doctrine on its head only [Q have it set back upright in rhe last couplc of years.

To understand these twists and turns, o ne sho uld fi rst have a bas ic

understanding of the doctrine of charitable immuniry. The bas ic principle of the doctri ne is that [he property o f a charity cannot be

sold under executio n issued o n a judgment rendered fo r rhe no nfea­

sance, misfeasance, or malfeasance o f its agems or trustees. Fordyu v. VVomens Christiall Nntiollfll Library Ass'n, supm. The theory

behind rhe rule is rhar rhe assets of a charitable trust may no r be sold

20 The Arkansas l..a"-'Ycr www.arkbar.com

by execution since do ing so wo uld defear (he purposes of the trust

and thus the donor's charitable intenr.

AJrho ugh the charitable immuni ry doctrine has been chall enged

o n several occas io ns, the protection afforded by the doctrine has

been affirm ed rime and agai n over the last 100 years. Su Hot Springs School Dist. v. Siste" of M<rcy, 84 Ark. 497, 106 S.W. 954 (1 907); Cttbbinm v. City of North Lin!< Rock, 228 Ark. 356, 307 S.W.2d 529 (1957); HalOn II. Sistm oIM<rcy oISt. jos<pbs Ho,p., 234 Ark. 76,35 1 S.W.2d 129 (196 1); Marioll Ho,p. AsslI v. wllpbi<r, 15 Ark. App. 14,688 S.W.2d 322 (1985); Mastersoll v, Stambllck, 32 1 Ark. 39 1, 902 S.W.2d 803 (1995); Georg< v. j<ffirson Ho,p. Assn, 337 Ark. 206, 987 S.W.2d 7 10 (1 999); Low v. !m llrallu Company ofNortb Am<rica, 364 Ark. 427. 220 S.W.3d 670 (2005); Sowders v. St. j osephs M <rcy Healtb Crr., 368 Ark . 466 (2007). In doing so, rhe Arkansas Supreme Court recognized early on thar rhe doctrine

works in favor of charities, bur explained that il also benefits the genera l public:

It may be said that under this ruling hard cases must occur. . .. On lhe odler hand, still harder cases would occur under rhe opposite ru le, by which the wi ll of charitable donors would be defeated, and the public imerest would be thwarted. Very many of the greatest charities of the presem day have grown from very obscure and feeble beginnings. If rhey had been sold out in their infancy for some trivial sum on accOllnt of the C~\felessness of an agelH or the mistake of a trustee, th us preventing the constantly accumulati ng benefits of centurics, it could nOt truthfully be said that the public good was pro­motcd by the sacrifice.

FordJu 11. \\7omt'l1J Christian National Libmry Ass 'II, 79 Ark. 550, 569, 96 . W. 155, 162-63 (1906).

Applying the Doctrine

The charitable immunity doctrine is capable of being applied to several different types of organi1..ations and businesses. In fact, rhe doctrine has been app lied to a wide range of charitable entities such as rhe North Litde Rock Boys C lub, a library associarioll, and, na[U­

rally, churches. Su, e.g., Lt'may v. Trinity LUI/UrdU Church, 248 Ark. 119, 450 S.W.2d 297 (1970) (church); Cabbinm v. City of Nort/' Little Rock, 228 Ark. 356, 307 S.W.2d 529 (1957) (boys club); fordyct'l1. \-tromen s Cbristiall National Library Ass 'II, 79 Ark. 550, 96 S.W. 155 ( 1906) (library).

Charitable immunity has aJso been applied to hospitals. Su, t'.g.,

Georgt v. Jeffirson Hospital Ass'n, 337 Ask. 206, 987 S.W.2d 7 10 (1999); Marion Hospiflll Ass'n v. Lanphier, 15 Ark. App. 14,688 S.W.2d 322 (1985); Williams v. Jeffirson Hospital Ass!I, 246 Ark. 123 1, 442 S.W.2d 243 (1969); Htlton v. Sistm of Macy of Sr.

Josep", Hospital, 234 Ark. 76, 351 S.W.2d 129 (1961 ). It is in this cOlHext that most of the more recent li tigation has ari sen.

In 1995, the Arkansas Supreme Coun adopred a number of (.1C­

rors designed (Q address whether an emity is created and maintained exclusively for charity. These factors, which were first announced in Mastersoll v. Stambllck, 32 1 Ark. 39 1, 902 S.W.2d 803 (1995), are co be used to determine whether an emity is cnrided to rhe doctrine of charitable immunity. These factors are illustrative, not exhaus­tive, and no single facto r is dispositive of charitable 5[ams. George

v. Jeffirsoll Hospital Ass'II, 337 Ark. 206, 212, 987 S. W.2d 71 0, 7 13 (1999):

(l )Whether the organization 's charter limits it to charitable or eleemosynary purposes

(2)Whether the organization's charter contains a unot-for­profit" Ijmitation

A non-profir corporation 's anides of incorporation will likely address rhe flrst (wo facrors. It is interesting to notc, however. that wh ile the enriry as a whole must he non-profit, ils sub-emiries may

be "for profit." For example, in G,org' v. J,ffirsoll Hospital Ass'n, 337 Ark. 206, 987 S.W.2d 7 10 (1999), the hospital owned and ran a number of for-profit clinics and a collection agency. The emire hos­pital association was non-profit and whatever profits were rea lized from the for-profit ent ities went back ilHO rhe institution to he used for its benevolent purposes. The doctrine of charirable immunity

was held to apply. 337 Ark. at 2 17, 987 S.W.2d at 7 15. (3)Wllether the organization'S goal is to break even A charity's goal may not be to break even but co have some sur­

pillS at [he end of the year lO rerum (0 lhe charity. This has been considered by rhe courts [0 be good stewardship of charitable funds and docs not defeat a claim of charitable immunity. For example, in G~org~ v. J~ffirson Hospital Ass'n, the coun stated that "{mJodern hospirals are complex and expensive, rechnological, economic and medical enterprises [hat can ill afford to come shorr of even in their finan cial integriry." 337 Ark. at 213, 987 S.W.2d at 7 13.

(4)Whether the organi7..ation earned a profit A surplus should nOt be confused with a profiL If an individual or

an oU[side entity (such as a city or the sralc) earns a profit, [his fac­ror will nor be meL Su, OUllcbitfl Wilderness Institute v. Mergen, 329

Ark. 405, 947 S.W.2d 780 (1997); Mastmon v. Stambllck, 32 1 Ark. 391,902 S.W.2d 803 (1995).

(5)Whether any profit or surplus must he used for charitable or eleemosynary purposes

An imporrant factor appears to be how any surplus is app lied. Where all excess revenue goes back inco the organization for opera­tions, sa1aries. and capital purchases to maintain and improve the charitable entity, rhe doctrine app lies. Su, G~orgt' 11. }t'ffirson Hospi!lll

Ass'n, 337 Ask. 206, 987 S.W.2d 7 10 (1999). (6)Whethe,r the organization depends on contributions and

donations for its existence This f..1.cro r has nO( been given great weight. In George 11. jeffirsofl

Hospital Ass 'n, 337 Ark. 206, 987 S. W.2d 7 10 (1999), on ly 6% of the hospitaJ association's enrire revenue was from donations. The court nored [hat with a modern hospital , it would be impossible ro be wholly or predominantly run on donations.

(7}Whether the organization provides its services free of charge to those unable to pay

A hospiral that is "free to all who arc not pecuniarily able, and supported in parr by priva te comributions and pardy by fees from patients, [andJ producing no profit, is a purely public charity." \Villiallls v. Jeffirson Hospital Ass'n, 246 Ark. 1231, 442 S.W.2d 243 ( 1969), quoting Hot Springs Sc/'ool Dist. v. Simrs of M"cy, 84 Ark. 497,106 S.W. 954 (1907).

(8)Whether the directors and officers receive compensation Salary. bonuses, and normal pay for working employees do not

preclude a claim of charitable immunity. Ir is not necessary for {he charity to have an enrirely volunteer slafT or managemenr. See,

George v. Jeffirsoll Hospital Ass'n, 337 Ark. 206, 2 14, 987 S.W.2d 7 10,7 14 (1999).

Michelk Cauley is a member of MitclJt!11, Williams, Selig, Gates 0-Woodyard, P.LL C. where she specializes ill defellding hospitals and medical

p,.ovitle,.s (",d is a membe,. of the /;"m 's new 111/0" ",atio1l Mmlflgemetlt alld Secu,.ity pmctice gro up.

Vol. 42 No. 4/ Foll 2007 The Arbnsos LO"Yer 21

Tbe Clayborn and Scamardo Years Beginning in 2002 the Arkansas Supreme Court addressed the

question of whether charitable immunity actually prohibits suits

against a charitable organization or simply prohibits the execut ion on a judgment. Prior (0 this inquiry, once an organization was deemed charitable, a plaintiff was prohibited from bringing suit against it, The first case ro quesrion this fundamental priIH ... iplt: and ra ise a

possible distinction in the charitable immuniry doctrine between " immunity from suit" and "immunity from liab ili ty" was Clnyborn v. Bank", Standard In.r. Co., 348 Ark. 557, 75 S.W.3d 174 (2002) . The Clayborn case was fo llowed a couple of years later by Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 31 1 (2004).

In C layborn, it was pronounced that charitable organizat ions are only immune from execution against their property. In so holding, the Supreme ourt stated that they "have never sa id that chari tab le organ iza tions are alcogether immune from suit." Clayborn, 348 Ark. 557,566,75 S.W.3d 174, 179. The COUrt in Ci4ybom clarified the charitable immunity doctrine by stating "[ol ur analysis indicates that a charirable organi7..3tion may have suit brought against it and may have a judgment emered against it, bur such judgment may not be executed against the property of rhe chariry." Clayborn. 348 Ark. 557,566,75 S.W.3d 174, 179- 180.

In Scamllrtio, the Appel lant asked the Arkansas Supreme Court [Q overrule its decision in Clnybonl. The Court declined to do so

and strongly supported its holding in Clayborn that a charitable organiz.·uion may be sued even though thei r assets are immune from execurion. SCfllflardo, 356 Ark. 236, 247, 149 S.W.3d 311, 317. A5 a resu lt, fo llowing Clayborn and Sramardo. rhe prevailing imerpre­ration of the charirable immunity doctrine was [hat the charitable

emiry was required [Q be a named party throughout the lirigalion even rhough rhe plaintiff may not recover damages from the charity if rhe doctrine is held ro apply.

Prior to these decisions, mosr plaintiffs would institure a lawsuir against a known charirable emiry by suing Ihe emiry's insurance carr ier under rhe direct action statute. Su ARK. CODE ANN. § 23-79-210(3) . After Clayborn and Scamnrdo, however, there were seriolls dispures among litigants as [Q whether or not suits insritured solely against (he charity's insurance carrier were subject to dismissals with prejudice if rhe actual charitable entity wasn ' r named as a parry prior to the expiration of the statute of limitations.

Back to the Beginning One such case caught in [his crossfire was heard by the Arkansas

Supreme Court in 2005, and brought to light the severe break that Clayborn and Scnmllrdo had taken from a very longstanding doctrine in Arkansas law. In Low I). / llSlIrfll1U Compa"y of North Amn-icn, 364 Ark. 427, 220 S.W.3d 670 (2005), the Appellants originally filed suit against both a charitable emiry (the Boy Scouts) and irs insur· ance carrier. The claims against rhe Boy SCOutS were first dismissed prior to Claybom and Scamardo based on the circuit court's under­standing of the charitable immunity doctrine which had long been interpreted to mean that charities were not subject to suit. Then, after the decision in Clayborn and SCllmnrdo, the circuit court also dismissed Appellams' direct action claims against the Boy Scoms' liability insurance carriers on the basis that the Boy ScoutS were the only properly named entity. As a result, the Appellams argued that the decisions in Clayborn and Scamardo left them with no remedy at all through no fault of theirs or of their counsel.

The Low decision ultimately reversed Clayborn and Scamardo and held that these decisions had been based on an erroneous interpreta­tion of the history of the ch:uirable immun iry docrrine. In particu­lar, the Coun held that the distinction berween "immuniry from liability" and "immunity from suit" in [he COntext of the acquired­immunity doctrine was mistakenly applied to the charitable immu­nity doctrine. As a result, Clayborn and Scarmado represented a sharp break from Arkansas's well-serried inrerprerarion of rhe charitable immunity doctrine and direct action statute.

The Arkansas Supreme Coun has re-affirmed its holding in Low even more recently in Sowders t). 51. Joseph's Mercy Health Ctr., 368 Ark. 466 (2007). Accordingly, under Low and Sowders charitable entities are immune from suit and may nO[ be named as defendants in a lort action. The real question now becomes whether cases mat have been filed before or during the Clayborn and Scannardo period may be amended in light of the Low decision. In cases where there is no nature of limitations concerns, this question is easy to answer. In the majority of those cases, however, the plaintiffs are left with a si tuation where they are anempring (0 amend their pleadings afu::r the statute of limitations has long since passed.

These attempts are generally made pursuant to ARK. R. CIV. P. 15(c) which allows an amendment of a pleading to relate back (0 the

date of the original pleading when:

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Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer 23

Arkansas Suprcmc Court HistoriGlI Socic~y ,

Three Men Named Holt

By Jacqueline S. Wright Walker

Three men named Holt have served at vari­ous times on the Arkansas Supreme Court. Jamcs Seaborne Holt was the first, He was followed by his first cousin , Joseph Franklin Holt; then Frank's ncphC\v, Jack Wi lson Holl, Jr., served. All were originally from Boone Counry. Bur the yen for statewide office was felt first by Frank's older brother, Jack Wilson Holt, Sr. A1though Jack Holt , Sr., never sought office on rhe state Supreme Coun, he was the political trailblazer for the others; therefore his Story also will be told.

E..1.c h of these four men received his under­graduate ed ucation at the University of Ark.1nsas in Fayetteville. Three received their law degrees there. Seaborne took his J.D. at the University of Virginia. They each prac­riced law in Arkansas. Seaborne practiced in Ft. Smith, and the others ended up in Little Rock. Jack Wilson Holt was born in Harrison,

Arkansas, in 1903. In 1928, the year after he was admitted to the bar, he was eieC[ed prosccuring anorney of (he 14th judicia1 disrricr and served in that office until 1935. During rhat time there was a feud in Searcy Counry berween ('wo families. A member of olle family bushwhacked a member of the other family and ki lled him. The murder case was [0 be tried before C ircuit Judge J. F. Koone at the Searcy County Courthouse in Marshall. O n the day of trial the defendant's family rode in with their horse pistols and dismissed rhe jury. They saw 110 need for a trial. Judge Koone could not get cooperation frol11 local law enforcement; therefore the trial ended. Prosecuting Anorney Jack Holt did see a

need for a trial in this case and announced that he would run for circuit judge (a res rore law and order ro Searcy County. After he was elected in 1934 , he called on the gov­ernor for help frol11 the Narional Guard. The Harrison guard unit did nOt have any aml11unition, so rhe governor mobilized the C larksville Guard, wh ich came to Marshall by (rain. The defendant was convicted with

24 The ArbnsJs L;l\\ycr www.arkbar.com

Judge Jack I-Io lt presiding. In the next general election Jack Holt ran

for Anomey General. A popular candidate. he served forsix yea rs from 1937 until 1943. Although he never won another statewide office, his ea rl y popularity with the vorers set [he smge for the other members of his family. The nexr Holt to seek statewide office was

Jack Holt's first cousin, James Seaborn Holt', who ran for the Arkansas Supreme Court and was elected in 1938, the year after Jack took office as Attorney General. Little known outs ide northwest Arkansas, Seaborn tOok with him rhe unanimous endorsement' of rhe Fr. Sm ith bar. Nineteen years Jack's senior, Cousin Scab had a distingu ished career in FI. Sm ith . He served as Assistant U.S. Artorney of [he Western District of Arkansas for three years, 19 I 7 to 1920, and was given a temporary appointment' as U.S. Anorney for 1920 ro 1921 . I-Ie campaigned hard for the state high court, visiting all bur ('\\,10 counties. But he also had the Holt name. Listed on rhe ballOt, nOt as James Seaborn, bur as J.S. Holt , he won a narrow victory over his opponenr, Justice W. R. Donham , who was serving on the Supreme Court by appoinunent to fill an unexpired term. The liming of Scab's appearance on the political scene may have been precipitated by his cousi n's success, but his decision to

seck jud icial office was 11m a new idea. As a college student he was befriended by OIlC of his professors , Charles Hillman Brough, an economist, who remained his friend rhroughoul their lifetimes. Brough , who entered politics and served as governor from 1917 to 1921, presented him with a book in 1930, with the inscription, "To James Seaborn Holt, a furure Arkansas Judge. From his friend , Charles Hillman Brough. " Seaborn was a studious, intellectual man of

slight build . He was quiet but outgoing and generolls. He and his wife had no children of their own, but they menrored many young men. Five of them at variolls rimes lived

III the couple's home whi le attending high school and co llege. Seaborn also gave office space and legal coaching to a number of young lawyers juSt starring out in [he legal profession. j. Seaborn Holt retired from the Arkansas

Supreme Court in 1961. after serving as Associate Justice for 23 years. An Arkll11Jm Gn.utu editorial pr;,i <;cd his inrelligenc con­

servatism. He died in an automobile acci­dent in 1963.

[The legal careers or Joseph Franklin I-Iolt and Jack W ilson Holt, Jr. , will be covcred in the next issuc. J

Sources: Arko11SfI,s Gnu/u, Wednesday, May IS, 1963, p. 6A.

Berry, E.ul. Piollur Liftond Pionur Famili~s oftl" OZflrks, C hapter VII, "Pioneer Boone County Fami lies." Cassvi lle, MO: Eml Berry, 1980.

Wi lliams, Fay. Arkansans of the Years. Linle Rock, AR: c.c. Allard & Associates, 1952.

Wright, Jacqueline S., IlHerview with for­mer C hief Justice Jack Wilson I-Iolt, J r., July 8,2007.

jacqueline S. Wrigbt Walker is II gradu­ate of Ibe Ulliversity of Oklnboma 5cbooL of Law in Nonnall, Okln.iJoma. Sbe retired as Director of tbe Supreme Cou.rt Library ill 1998.

This article is provided by the Arkansas Supreme COlin Historical Society, Inc. For more informat ion on the Society contaCt The Arkansas Supreme Court Historical Society. Justice Building, Suite 1500, 625 Marshall Srreet, Lirrle Rock, Arkansas 7220 I; Emai l: rod.miller@a rkansas.gov; Phone: 50 1-682-6879.

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Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer 2S

Arkansas Bar Center Memorial Border

For over three decades, the home of the Arkansas Bar Center was located at 400 West Markham Street, on the south side of the Arkansas River in downtown Little Rock. We recognize the generosity of the many attorneys, families and other individuals who made the dream of the bar center Markham property a reality.

As you may recall at the 400 West Markham property, at the entrance of the glass stairwell was a Memorial Border, marble completing the perimeter of the entrance, and a marble cube, listing the Patrons. These marble pieces were re-Iocated to our new bar center home.

In honor of our heritage as we moved to our present location, the marble Memorial Border is now prominently displayed along with the Donor Wall and Memorial Wall in the lobby of the new Arkansas Bar Center. These names represent attorneys who were memorialized by their families and friends. A list of the attorneys recognized in the Memorial Border is included in the donor book. You will find these same names along the perimeter of these two pages.

Also found on the opposite page is a list of the Patrons whose contribution of $2,500 each made the Markham bar center a reality. These individuals, whose names are engraved in marble, are now displayed on a special Patron's Wall located on the first floor across from the Visiting Attorney's office.

It is with great pride that we display these important pieces and honor those who made the previous and this current bar cen­ter a reality. We invite you to come see these beautiful pieces in our new facility located at 2224 Cottondale Lane, Little Rock, Arkansas 72202. If you have any questions, please feel free to contact Ann Dixon Pyle, Executive Director of the Arkansas Bar Foundation, at (501) 375-4606 or email atapyle@arkbar.com.

new Arkansas Bar Center

Patrons E. J. Ball W. A. Eldredge, Jr. W. Horace Jewell N. Dale Price Joe. C. Barrett John D. Eldridge Sam Laser Heartsill Ragon William H. Bowen Oscar Fendler Edward Lester Louis L. Ramsay, Jr. Brooks Bradley John A. Fogleman Robert S. Lindsey Bruce H. Shaw Richard C. Butler Herschel H. Friday, Jr. J. Hugh Lookadoo, Jr. Robert Shults Leon B. Catlett James W. Gallman Herbert H. McAdams William J. Smith Billy S. Clark N J. Gantt, Jr. E. L. McHaney, Jr. David Solomon Howard H. Cockrill Edward Gordon, Jr. Sidney S. McMath Henry E. Spitzberg John A. Cooper Nathan Gordon H. Maurice Mitchell C. Randolph Warner, Jr. Courtney C. Crouch James T. Gooch William S. Mitchell, Jr. John T. Williams Edward L. Cullum, Sr. P. H. Hardin William Nash J. Gaston Williamson John S. Daily Marion Steele Hays Walter R. Niblock Henry Woods John C. Deacon Willis H. Holmes Wayne W. Owen Edward L. Wright Thomas E. Downie Max Howell Gerland P. Patten Elizabeth G. Young E. Charles Eichenbaum Alston Jennings Fred M. Pickens, Jr. Paul B. Young

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Little Sins Less Burdensome Than Great Virtues Review of Lost Kingdoms by Phillip McMath (Fayettevi lle, Ark.: Phoenix International, Inc, 2007), 517 pages.

by Vic Fleming

In Lost Kingdoms, by Little Rock's Phillip McMath , we have a rich mpesrry. woven in the finest of literary trad itions. Through it and throughout it, the author deftly bal­ances the tension of opposites: heroism and cowardice, righe and wrong. comedy and tragedy.

Grieving the Joss of her and husband Conrad's on ly son, in circa 1976. Elizabeth Shaw goes, as orten she does, to the Ephesus Cemetery (in fictional Warccnsaw County), where "Christopher was backhoed ima me earth, in his oblong little eell." Once there, "standing among her dead at last, . .. alone and lost in this dark wood mixed with light," she reminisces:

Strange how it all worked, she thought. Linle dramas swirling everywhere, close by and we don 't even know. Blind we are and blind we remain-bljnd [Q those closest to us, blind to the truth. others, and ourselves; we live as the blind in a half-blind world. The depths and shadows always stand nearby, in and out of the lives and souls of others, and we never know or see them.

McMath. the omniscient narra[Qr, then seizes control and takes us on an enjoyable ride, full of lists, twiSts. hot times, internal rhymes, alliteration, al lusion, and alleluias. as he gives the English language a heart­pounding workout. It is. primarily, an 1860s tale of fitmi ly, politics, war, and religion, no one of which is ever fu lly divorced from the others. Elizabeth 's biological family, led by great-grandmother, Medora McDade Pilgrim, and husband, Confederate Army Colonel T itus Pilgrim, are the focus. Bur an adopted family member-Dagmar Pilgrim, a one-armed Confederate soldier-srea1s the show and also readers' hearts.

At times, McMath seamlessly ships us

back ro the 1500s, so that Hernando DeSOto's exploits may be appreciated cen­turies later. Did you know that, but for DeSOto, Arkansas might nOt have had such a population of razorback hogs as to merit the naming its university's athletes for them?

28 The Arkansas Lav.ycr www.arkbar.com

For, in his travels, DeSotO was "bu rdened with a following of fri ghtened slaves and a swarm of ever-copulating swine ....... Swamps and stumps, gnarls of cypress roots kneed Out of the mud to trip and impede al l

but rhe ever-fecundate, agile pigs . .. . The number of pigs increased, even while the number of horses. dogs, and men declined .

Provi ng the omnipresence of levity. even in times of deepest struggle and moral dilemma, McMath crafti ly employs humor devices. For example, he repeatedly engages in personification in his treatment of the Pilgrim fami ly mule, Ulysses, aka "Useless:

O ne can be sure that deep in the recesses of his mule mind was a growing real ization that something important" had happened, but unlike Calvin, who was Reb to the bone, Ulysses was totally apolitical; and with a wisdom unique to his race, he would worry about it in a half-comic, half-serious way, then lay it al l aside as one more insignificant piece in the great puzzlement of human folly. Surely the essence of mule wisdom is acceptance.

In the winter of 1863, Medora and Useless travel from the family plantation, Arcadia, to Little Rock, in search of medical assis­tance for 12 year-old Homer Joe. A Union

semry gree ts them at the edge of the city:

"Hair! Who goes there?" came something sounding like a shout.

T his was a quest ion for which Medora had no ready answer.

Useless, however, even though the Germanic soundi ng word "halt,n spoken in a strange lo\.\'a cornfield dialect, was alien to his long "Boot­H eel M issouri" cars, guessed its meaning. He stopped. Swingi ng his head round, he stared at Medora for reassurance, . ...

Medora leaned forward, set the brake for no obvious reason, and dipped a little snuff-her one per­missible vice. She was, afte r all a Presbyterian.

Medora's miss ion is complicated by their arrivi ng one day after the arrest of teen­ager David O. Dodd as a Confederate spy. Dodd's story thus becomes the first of many to play itself out in these pages with precise detail. Larer, other events, especially battles. will be recounted with poignancy and sprin­kled through with educ:trion::. 1 nuggeu not likely to be taught in school.

Of particular nOte is a passage JUS t past the midpoint of the book. The year is 1865. Emperor Maximilian 1 of Mexico is involved in a civi l war against insurgents led by Benito Juarez. Colonel Pierre Jean Joseph Jenningros, an "absinthe-addicted" henchm ::. n of the em peror is sought our

by Confederate officers who have Aed [Q Monterrey rather than accept the Union vic[Qry. Among these is Major General Orville Joseph helby, who sends his rider, Corporal Dagmar Pilgrim, to deliver a message to Jenningros. The colonel asks if other C..onfederate soldiers are like Dagmar. who rep lies, ''I'm the only one-armed still a-fighti n' that I know of, si r."

The miss ive from Shelby reads:

Preferring exile to surrender, I have left my own country to seek service

Book Review continued on page 49

I

Lawyer Community Legacy Award The Arkansas Bar Association is proud to recognize lWO new recipiems of the LAWYER COMMUNITY L EGACY A WARD, Two awards are

presented hi-annually by rhe Association to 3norneys and judges who have performed volumeer public services ou[ of 3 sense of dury, professionalism, and a genuine desire co give back La the community. Recipients were selected by the Public Information Comm ittee

after considering the nominations received by the deadline.

Judge Richard L. Proctor

Judge Richard L. Proccof has spent the past four decades serving rhe legal profession and his commun ity. He has dedicated countless hours of public service (Q me communiry of Wynne with special at­(cntion to lhe future leaders of me community-the youlh. He has practiced law in Wynne since his grad uat ion from me Un iversity of Arkansas School of Law in 1968, beginning his career practic­ing with his father, Everen Proctor. Since 1976, Judge Proctor has served Cross Cou nry as District J udge,and he also cominues a solo law practice where he devotes many hours to pro bono work. He currently serves on rhe Board of Directors of Pip/Chedroc, dba the Boys and G irls C lubs of Cross County, Arkansas, an organization [ha[ he helped es<ablish along wi,h o,her community leaders. Judge Procror also serves on [he Board of the Cross County Economic Development Comminee. For over twenty years. with [he help of his wife Irene. he provided a Criminal Law Education Projecr for [he 5[h grade children of Wynne I",ermedia,e School. He has [augh, Sunday school a' ,he Wynne Bap,i" Church since 1969 and worked with [he church's youth program in various capacities including traveling on several mission trips and serving as a deacon. Judge ProclOr served ren years as a trustee of Midwestern Baptist Theological Seminary in Kansas City and currenrly serves on the Board ofTrusrees of Mid America Baptist Theological Seminary in Memphis, TN, He has served as president of rhe Cross County Bar Associadon and has served on the Association's House of Delegates. He was past president of the previously named Arkansas Municipal Judges Council, after serving as district board member, treasurer, secretary and vice-president. In addition, Judge Procmr served on [he Cross County Hospital Board of Trustees and is past president of me Wynne Ro,ary Club. He has been married 36 years '0 ,he former Irene Nix, also of Wynne. Humbled by the honor of this award, the F.lther of three said, "I am a part of a community [hat believes in its youth, believes faith and service are a part of daily life, and is committed to building a strong and wholesome environment for its citizens. There are so many people in Cross County that deserve recognition Illore than me."

Frederick S. " Rick" Spencer

Frederick S. "Rick" Spencer, like his ra,her and grandfa[her before him, has consistently devoted his rime, money and efforts serv-ing his community and the legal profession. As an active member of his community and his church. Spencer not only sought seeks {Q discover the needs of people, he fi nds solutions. He is actively involved in the Mountain Ilol11e Bible Church as elder and an ac­tive supporter and member in the Gidcons International. Spencer has taught Su nday school fo r 40 years and heads the Jr.Varsityl Varsity AWANA Program for approximately 2S teenagers in Baxter County. He has assisted his church financially by recently providing twO school buses. one of which is handicap-accessible, a new grand piano. Schulmerich hand bells as well as numerous other audio-vi­sual devices. He has served as an active member in the 4-H Club in Baxter County and also as a parr-rime area director in North Cen­,raI Arkansas for [he Boy Scours having been a recipiem of Eagle Scour and God and Coumry Awards as a yourh. The Baxter County Courthouse is decorated each year by a life-size nativity scene, 20-foo, ligh,ed [fee and life-size Sama Claus dona,ed by Spencer. Also Rick and his wife, Brenda, 3re responsib le for the annual Christmas tree lighting ceremony that kicks ofT the Christmas parade every year in Moumain Home, Additionally, he donated eight new Dell computers co Baxter County Library. In addition to his own law practice, the Spencer Firm donates many hours to help ing indi-genr and elderly clients, and Spencer was recently asked to serve on the Board of the Arkansas Volunreer L.1wyers for the Elderly. Spencer ruso volunteers his time as coullselor and lawyer to many area churches as well as KCMH Christian Radio Station, which he helped found . He has also served on the Bar Association's House of Delegates and is a past president of the National Organization of Social Security Claimant's Representatives. Spencer has also been a governor and board member of ATLA for the past 20 years and a recepient of the Roxanne Wilson Advocacy Award. When asked for his response to this award, Spencer said, "Probably most of the lawyers in [his Scate do as much if not more than myself. Yet I am very grateful for this and will do my best to live up ro this honor."

Any persoll may "omil1ate a lawyer orju.dge by completing the Nomillatioll Fonll and turning the Fon", illto the A rkallsas Bar Associatiol1 office on or before the 110mi1latio1l deadline. Nomil1ation deadlilles are jallu.ary 31st and Jllly 31st of each year.

Nominatioll Jonlls and gu.idelines for the aWIII'd are available at lUwlu.arkbar.com or by contllctillg the Association.

Vol. 42 No. 4/ Fall 2007 The Arbnsas l.a.,),er 29

Judicial Ad\'i~oly Opinion~

Judicial Advisory Opinions are written and provided by the Judicial Discipline and Disability Commission. Full text is available online at www.state.ar.usljeac.index.html

Advisory Opinion 2007-01 April 2, 2007

The Arkansas J udida! Ethics Advisory Committee issued an advi­sory opinion [0 C ircuit Judge James A. Cox afFort Smith. Arkansas. Judge Cox requested an opinion as to whether it would be permis­sible to serve on the University of Arkansas at Fort Smith Board of Visitors commince. He S[ated that the committee is an advisory body that exiscs [ 0 support the University and that members of the committee are not concerned with issues of fact or policy. He stated that the committee serves to communicate the perceived needs of the communi ty co the office of the school's chancellor. The Judicial Ethics Advisory Committee stated that Canon 4(C) (2) of the Arkansas Code of Judicial Conduct says that a judge "shall not accept appointments to a governmental commince or other governmental position that is concerned with issues of fact or policy," with the exception of matte rs of law or the judicial system. However, the committee notes that Canon 4(C)(3) permi ts a judge to serve as a trustee or advisor of an educational organization not conducted for profit. The Committee concluded that the role of a member of the Board

of Visitors is "more educational than governmental " and for reasons set forth in J EAC Advisory Opinions 95-03 and 2001-0 I. the com­mittee believes that Canon 4(C)(3) is the controlling provision. I t is the opinion of the Committee that Judge Cox may serve on the

Board of Visitors of the Universiry of Arkansas at Fon Sm ith.

Advisory Opinion 2007-02 April 17,2007

T he Arkansas Judicial Ethics Advisory Committee issued an advi­sory opinion to Judicial Candidate Cathleen Compton of Little Rock, Arkansas. Ms. Compton requested an opinion as to whether it would be permissible to send a campaign contribution to the Campaign of Senator Mark Pryor. Ms. Compton had agreed prior to announcing her candidacy to be a co-host of the Senator Mark Pryor campaign. Co-hosts were asked to contribute $ 1000.00. The Judicial Ethics Advisory Committee stared that Canon 5 of

the Arkansas Code of Judicial Conduct states that a judge Ot judicial candidate shall refrain from inappropriate political activity. Section 5A(I)(b) states all judges and candidates for election or appointment for judicial officc shall nOt publicly endorse or publicly oppose a can­didate for any public office. Finally. Section 5A(I)(e) states a judge or judicial candidate should not solicit funds for, pay an assessmem to or make a contribution to a political party or candidate. The Committee concluded that based upon restrictions in the

Code of Judicial Conduct, Attorney Compcon may not honor the campaign promise made prior to announcing her candidacy for a judicial position.

Arkansas Lawyers Assistance Program ArLAP

Helping Lawyers and Judges Find Personal Solutions ... Now

Fall Support Groups Group l -Women's Group

Group 2-Men's Group

Would you benefit from participating in a Support Group?

oAre you a lawyer. judge. or a family member/significant other of a lawyer or judge? oAre you repeatedly challenged by certain situations? 000 you have a vision of how you would like those situations to be in the future? oAre you tired of struggling alone with these situations? oAre you willing to explore new directions to achieve your vision?

oAre you willing to participate in a confidential supportive group to learn how to accomplislfh~y~o~u~r v .. i .. si~0~n7~. -~~~~~~""'iI

ArLAP Provides a Safe and Confidential Atmosphere to

Discuss Your Challenges and Concerns Receive Peer Support

Break Away from the Isolation of Practice Experience Laughter and Camaraderie

30 The Arkansas Lawyer www .• rkbar.com

Contact Sarah Cearley. PhD. LCSW Director of Cl ient Services

SOl -907-2529-Confidential sarah@arlap.ora-Email www.arlap.ora-Website

2 Van Circle, 5te. 7 Little Rock. Arkansas 72207

La\\)'cr Disciplinary Actions

Filial actions from July 1, 2007, through September 30, 2007, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct.

Full text docm1U!1lts are available on·line at http://courts.state.ar.u.slcourtslcpc.html. [Note: "Model" Rules refers to the Rilles of Professional Conduct as they existed in ArkatlSaS prior to May 1, 2005.

"Arkansas" Rules refers to the Rules as they exist in Arkansas from May 1, 2005.J

SUSPENSION:

W ILLIAM SCOlT DAVIDSON, Bar No.

8 1044, ofJonesboro,Arbnsas, wassuspclldcd for one ( I) month, effective November 1,

2007, by Committee Consenr Findings &

Order filed August 20, 2007, in Case o.

2006-155, on a complaint filed by Ms. Jessie

King (formerly Vinson). for violation of Rules 1.2(a), 1.3, and 1.4(b). This macrer

was originally brought [Q the ancmion of

the Office of Profess ional Conduct (O PC)

on January 9, 2006, when Ms. King filed a grievance against Mr. Davidson for failing

(0 rake act ion in her behalf on her pending

joint Chapter 13 bankruptcy case, 0.01-bk-32360, with her former husband Terry Vinson. ope had multiple contacts with

Ms. King and Mr. Davidson and monitored

the matter until a complaint was received

from Judge Evans. Using anomer a.trorney, Mr. and Mrs.

Vinson filed a joint C hapter 13 petition on ovember 29, 200 I, as No. 01-bk-32360.

Their plan was confi rmed and payments

were made on it for several years. After they

divorced, Ms. Vinson moved ro M iss iss ippi and remarried. Mr. Vinson remained in

Arkansas and cominued to make their plan

paymems. The Vinson's original anorney

was permitted to withdraw from their case

on October 19,2005. After her divorce, Ms. King desired to

convert her C hapter 13 case to a C hapter 7

liquidat ion casc. She employed Mr. Davidson

for that purpose and paid him his requested fee of $350.00 on September 29, 2005, but

he rook no anion for her. On January 24,

2006, OPC wrote Mr. Davidson, copying

Ms. King, informing him of the filing of

Ms. King's grievance against him. He took no action in her maner that she knows of

from September 29, 2005, until January 30,

2006, when he filed a Notice to Convert to

Chapter 7 for her in the origi nal case, No.

o l -bk-32360.

Major changes in the bankruptcy laws became effect ive on October 17, 2005 ,

complicating and restrict ing the ability of

debtors to make such conversions, accord ing

to Judge Evans's commems in the August 30, 2006, hearing. Unable to obtain satisfactory

action rrom him , and after he asked her

for another $ 1 SO ro converr her case from Chapter 13 (0 Chapter 7, on March 5,2006,

Ms. King wrOte Mr. Davidson and asked

him (0 refund her $350 if he did not want 1'0 be her anorney, and asked ror a reply

within ten days. On May 16, 2006, Ms.

King e·mailed Mr. Davidson and directed

him ro discominuc any actions that might currently be in process. Eight days later, and

aga inst her specific instructions, on May

24, 2006, Mr. Davidson filed a Motion

to Deconsolidate Chapcer 13 case for Ms.

King in No. ° l -bk-32360. The Motion was granted May 25,2006, and Ms. King's now­

separated Chapter 13 case continued under

a new number, 06-bk- 12088. Mr. Davidson failed to file a corrected mailing address for

Ms. King, so all court documems were being

sem co her old Jonesboro address, burdening her ability to receive these documents and

track activity in her fil e.

By lener dated August 15, 2006, to Mr. Davidson, the C hapter 13 trustee informed

him thar Terry Vinson's C hapter 13 Plan,

in No. 01-bk-32360, had a major problem,

in that his plan would not pay our in the

allowable sixty months. H is plan had (0 be modified by September 14, 2006, to meet ,he

"sixty momh" requirememofbankruptcy law

or be dismissed. Mr. Vinson chen obcained

new cou nsel, Joe Barren, in ea rl y September

2006, to represem him in the needed Plan

modifica tion. On September 12, 2006, Mr. Barrett filed a Notice of Conversion

ro Chapter 7 for Mr. Vinson and filed an

amendment to add creditors on October 9,

2006. Mr. Vinson 's meeting with creditors

was conducted on October 27, 2006, and he

received his Chapter 7 discharge on January

5,2007. I n her new separate case, o. 06-bk-

12088, an Order Regarding Deconsolidation

Deficiencies was emered May 26, 2006, directing Mr. Davidson (Q take the actions

noted thereon, including filing Ms. King's

schedules and statement of financial affairs, or her new case wou ld be dismissed. The

Cenifica te of Service fo r the Order shows Ms. Vinson's old Jonesboro address Still listed as her add ress of record with the court. A clerk 's docker sheet for the period

May 26 - June 26, 2006, made available for

this case, notes contacts be [Ween members of the clerk's office and Mr. Davidson that

add detail and insight inco what was being

communicated at the time. Ms. King's case was dismissed byOrder fi led

June 26, 2006, for fuilure to timely file her

schedules and staremenr of financial affairs.

On August 10,2006, Ms. King filed her pro se Motion ro Set Aside Order Dismissing

Case, with six exh ibits attached. Her Motion outlines and documents her efforts co deal

with Mr. Davidson on this maner since she

paid him ,he $350 in September 2005. An earlier version of this Motion had been filed

on July 27, 2006. At ,he AuguSt 30, 2006,

hearing, a( which both Ms. King and Mr. Davidson testified, the Court granted her

motion and reinstated her separa te Chapter

13 case, No. 06·bk- 12088, to active status,

fi li ng its Order to that effect on September 15, 2006. Thereafter, Mr. Davidson again

failed to file (he required schedules and

statement of affairs for Ms. King. and the

case was dismissed again on October 10, 2006, the StatuS in which it remains. Mr.

Davidson entered imo a thirry (30) day

license suspension from another Committee

case on November 1,2006, so hc was unable

ro perform any legal services for Ms. King after (hat date and until he was reinstated

ro good standing by (he Committee on

December 7, 2006. Mr. Vinson has received a Chapter 7

discharge. Ms. King is left our of that case

and her new, separate case is now twice· dismissed due to Mr. Davidson 's fai lure (0

perform for her. Mr. Davidson made a $350

refund to Ms. King at ,he AuguSt 30, 2006,

hearing.

BARBARA A. KETRlNG-BEUCH,

Bar No. 97074, of Norrh Little Rock,

Vol. 42 No. 4/ Fall 2007 The Arbnsas lalVyer 31

La....Yer DisciplinalY Actions

Arkansas, was slispended for six (6) momhs

by Comminee Findings & Order filed

August 1.2007. in Case No. 2006- 170. on informac ion provided to [he Committee by C ircuit Judge AJice Gray, tor vio lation or Rules 1.1 . 1.3. 3.4 (c). 4.4(a). and 8.4(d). Ms.

Kcrring- Bclich represented Jakcera Young in a divorce proceeding, Pulaski Circuit No.

DR-2005-3584. sryled Jakeeta L. Young v. David C. Young. before J udge Alice G ray.

Mr. Young was represented by James W.

Stanley. At a fina l heari ng on May I 1.2006. which Ms. Ketring-Bcuch attended with

her cl ient. Judge G ray granted a divorce to

DefendalH/Counrer-Plaimiff David Young

and made certain rulings regarding properry

issues. Mr. Stanley promptly prepared a

proposed Decree of Divorce and mailed it ro Ms. Ketring-Beuch on May I I . 2006. for her approval, along with an enclosed

Q uitclaim Deed for her d iem ro execute and

his trust check #42 I 3 for $ I 1.395.33 from

Mr. Young. payable (0 Jakecr3 Young and Ms. Kerring-Beuch, for Ms. You ng's share of

the equiry in the Young home. Ms. Ketring­

Beuch f..1. iled [Q approve and rerum the

Decree of Divorce and the properly executed Quitclaim Deed. The check was endorsed by

Ms. Young, Ms. Ketring-Beuch, and Leonard

Boyle, Ms. Young's brother, and was given

by Ms. Ketring-Beuch to Ms. Young to be negotiated. which she did , receiving all rhe funds represented by rhe check. On June 6, 2006, Ms. Ketring-Beuch acknowledgt:d lilt:

signature of Ms. Young on the Quitclaim Deed and then stuck rhe deed in her office

fil e, where it remained lIntil December 7. 2006, when she discovered rhe deed and delivered it [Q Stark Ligon at the Office of

Profess ional Conduct, afrer he contacted Ms. Kerring-Beudl abom the Young matte r.

Mr. Ligon then fo rwarded the o riginal deed

to Mr. Stanley for his client's use. On May 30. 2006. Mr. Stanley sent the proposed

Decree of Divorce [Q Judge G ray, with copy co Ms. Kerring-Beuch, under the "five days

to object" rule. O n August 29. 2006. Mr. Sran ley wrote Ms. Kerring-Beuch requesting approval and reUirn of the Decree and Deed immediately, after a hearing on rhe non­

entry of the Decree. Faced with no response

from Ms. Ketring- Beuch. with the approval of Ms. You ng. on October 10. 2006. Judge

G ray appointed arrorney Carro l Ann Hicks to rep resent Jakeeca Young for (he purpose of

getti ng a decree approved and emered. Ms.

32 The Ark:ms(js lmrycr www.arkbar.com

Hicks conferred with Ms. Young. approved

the proposed Decree earlier prepared by Mr.

Stanley, and submir-ted the Decree to Judge Gray by letter dated October 26. 2006.

Judge G ray approved the Decree of Divorce on November 20, 2006, and caused ir [Q be filed that same day. O n November 22. 2006.

Judge G ray referred the matte r and Ms.

Ketring-Bellch ro the Com mittee for action,

based on her failure to represent her client co

the com pier-ion of the divorce matter.

DAVID F. MOREH EAD. BarNo. 89 143.of

Pine Bluff, Arkansas, was suspended for rwo

(2) momhs. fined $ 1.500.00. and ordered

(Q pay $4 10.00 restitution by Commirree

Findings & Order filed September 28. 2007. in Case No. 2007-046, on a complaint from John Franks. III . for violation of Rules I. I . 1.3. 1.4(a)(3). 1.4(a)(4), I. 16(d). 3.4(c).

5.5(a) . 8.4(c). and 8.4(d). Mr. Franks

employed Mr. Morehead to file a C hapter 7 bankruptcy. and paid $2 I 0.00 for the

filing fee and $200.00 for the artorney's

fee on Augllsr I and September 12, 2005,

respectively. The Petition was filed, as No.

05-bk-24533. on October 6. 2005. and an

O rder was sought and obrai ned allowing

Franks to pay his filing fee in installments.

even though Morehead already had received the filing fee funds. In filings with the

courr. Morehead also certified thar he had received "$0.00" fu nds from his client as

of thar dare, a false starement. The first

meeting of creditors ("34 1 meeting") was

set for November 17.2005. Morehead fai led

to l'imely pay a filin g fee for Franks. On November 25, 2005. an o rder was entered dismiss ing Franks's case, the file was closed,

and rhere has been no action on his behalfin

bankruptcy courr since then. H is filing fee

was never paid. He contacted Morehead 's

office several times thereafter, unsuccessfully anempring to obtain information abol!{ the

stams of his case. Failing to obtain rel ief and protection from bankruprcy. GMAC auctioned off his truck and is now pursuing

him for a deficiency judgment of$ I 6.265.00. Morehead has not refund ed Franks's

unexpended $2 I 0 filing fee Morehead has

held since November 2005. or any unearned

porrion of the anorney fee he was paid to

handle th is matter to complerion.

Morehead fa iled to pay his 2006 Arkansas

ELECTRICAL ACCIDENTS

Paul D. Mixon, Ph.D., P.E. Engineering Consultant

P.O. Box 3338

State Univers ity. All. 72467

(870) 972-2088 (870) 972-3948 FAX

pmixon@astate.edu paul_mixon@Yahoo.com

• Accident Invest igatio n and Analysis

• Con tact Cases and Electrocutions

• Electrical Injuries

• Property and Equipment Damage

• Electrical Fires

• Safety Code Co mplia nce

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Experr Witness

Disputes Settled

I

Supreme COllrt anomey's li cense fee, due by March 1,2006, until June 6, 2006. He failed

(0 pay his 2007 Arkansas Supreme Court an omey's license fee, due by March 1,2007. As a resuh of these act ions, his Arkansas law

license was in auromatic suspension status

from March 2 - June 6, 2006. and since March 2007. He practiced law in bankruptcy

court during these periods. [M r. Morehead has a mo do n fo r reconsideration o n his

three cases pending before r.he Committee at publication rime.]

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LaV\)'cr DisciplinafY Actions

DAVID F. MOREHEAD, Bar No. 89143, of Pine Bluff. Arkansas. was suspended for [wo (2) months, fined $ 1,500.0, and o rdered

to pay $209.00 restitution by Comm irrce Find ings & Order fi led September 28,2007,

in Case No. 2007-048, on a complai n{ from Jillian Parker for vio lation of Rules 1. 1.

1.3, 1.4(a)(3), 1.4(a)(4), 1. 16(d), 3.4(c), 5.5(a), 8.4(c), and 8.4(d). Ji ll ian Parker

and her mother, C heryl Parker, wenr to

Mr. Morehead in September 2005. seeking represenrarion for m eir fin ancial situation.

He advised both to file ror C hapter 7

bankruptcy protection and seek a discharge order. He £o ld them thac he requi red a $208

or $209 filing fee from each of them and

would only charge $250 for legal services to each, for a tota] fee of $500. C heryl Parker

paid $209 cash then for Jillian's case filing

fee. Ar another meering a shorr time later,

C heryl paid $208 for her fil ing fee.

O n October IS, 2005, Morehead fi led for

Ji ll ian as No. 05-bk-28354 . On October 16,2005, he filed for C heryl as No. 05-bk-

28486. C heryl later paid the $250 for her

legal fee. C heryl's case proceeded without incident. Morehead paid C heryl's $209

filing fee to the clerk on January 12, 2006. She received her discharge order on january

24.2006.

Morehead failed to pay Jillian's filing fee

and her case was dismissed by order fued November 25, 2005, for failure to pay the

fili ng fee. Thereafter there is no record in

jiJlian's case of his having taken any action £0 reopen her case or refl le for her, or having

paid any fili ng fee for Ji ll ian. Jill ian and Cheryl contacted his office several times fo r

information about the stams of jillian's case,

bur they received no report, other man it was

being worked on. Morehead was contacted

by lerrer dated December 20, 2006, by the Office of Professional Conduct about

jillian's case, and others. In early January

2007, he contacted jillian and £old her he

was working on her case, would get it refi led,

and she would owe him no more money

for the matter. There has been no activity

in her ban kruptcy fi le since December 6,

2005. By nOt taking any action in jillian's

case since December 6, 2005, he abandoned

her as his cliem and effectively term inated

the anomey-clien t relationship. He fa iled to

refund any unused part of the $209 fi ling fee

he received, hur did nor pay to the clerk, for

Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer 33

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Jillian.s case.

Morehead failed ro pay his 2006 Arkansas Supreme Coun atto rney's license fee. due by March 1,2006, umi l June 6,2006. He fai led co pay his 2007 Ark.1nsas Supreme Court artorney's license fee. due by March 1,2007. As a resuh of these actions, his Arkansas law license was in automatic suspension S[atuS

from March 2 - June 6, 2006, and from ar least March 2 - Apri l 9, 2007. He pract iced law in coun during these periods.

DAVlD F. MOREHEAD, BarNo. 89 143, of Pine Bluff, Arkansas, was suspended for two (2) months, fined $ 1,500.00, and ordered to pay $209.00 restitution by Comminee Findi ngs & Order fi led September 28, 2007, in Case No. 2007-058, on a complaint from Evelyn C row for violation of Rules 1. 1, 1.3, 1.4(a)(3), 1.4 (a)(4), 1.16(d), 3.3(a)(I), 3.4(c), 5.5(a), 8.4(c), and 8.4(d). Ms. C row

went to Mr. Morehead about filing a Chapter 7 bankruptcy case. She was told the filing fee would be $209.00. She paid $100.00 on October 12, 2005, and the balance of $ 109.00 on January 3, 2006. She gave him all the personal and fin ancial information he requested. On October 13, 2005, in dme to be under the old bankruptcy law wh ich was expiring on Ocrober 17, 2005, he filed her petition and sched ules as No. 05-bk-26 197. She was notified of rwo court dares for her meeting of creditors. Morehead or his offi ce to ld her to disregard the first date and co go on the second dare. When she went to court on mat date, believed co be December 15, 2005, she was told her case had been

dismissed. She well( to his office on January 13, 2006, and paid the $ 109 balance she owed on her filing fee. She underscood he was going ro refile her case.

She went to his office several times up to mid-2006 checking on her case. She was usua lly told he was worki ng on it. He re­emered her information in [he computer on the case, but she never received any lener about goi ng ro court. She calle(1 his office a number of times abom her case, bur received no return calls. She wenr to his office on February 15, 2007, but was rold he was not in and she was not provided any information abom her case. The same thing happened ro her on February 26, 2007. Ar this time, Morehead still has her papers and her $209 for the fi ling fee, which he never expended for her case, and Ms. C row has no case.

Mr. Morehead failed to pay his 2006

Arkansas Supreme Court anorner's license fee, due by March I , 2006, until June 6, 2006. He failed to pay his 2007 Arkansas Supreme Court anorney's license fee, due by March I, 2007, unti l May 16, 2007. As a result of these actions, his Arkansas law license was in automatic suspension status from March 2 - June 6, 2006, and from March 2 - May 16,2007. He pracriced law in bankruptcy court during these periods.

PETER E. MORGAN, Bar No. 87121, of Denver. Colorado, was reciprocally suspended for six (6) months by Committee Findings & Order fi led July 20, 2007, in Case No. 2007-07 1, for vio lation of Colorado Rule

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8.4(b) (engaging in criminal aces) and Rule 8.4(h) (engaging in conduct thac directly, intemionally, and wrongfully harms others and that adversely reflec ts on a lawyer's fitness to practice law). In his proceeding in Colorado, Mr. Morgan stipulated that he was admitted in CO in 1973, mat he was a recovering alcohol ic benveen 1977 and 1998,

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Vol. 42 No. 4/ Fall 2007 The Arkansas la'IYer 35

Lavrye

when he began drinking again during his divorce. and lilac he drank aJmos[ daily from 1998 [Q june 2005. when he became a1cohol­free. On June 11 .2005. he was involved in a mawr vehicle accident at a rime when he

had been drinking. On September 29. 2005. he was charged with hir-and-run injury, fa ilure (0 give notice of an accident, failure to Tepon an accident, and careless driving in this incident. On February 16. 2006. he pled guil ty to careless driving, was fin ed $177.00, and (he charges WCTe dismissed.

Also on J line 1 I, he was involved in an alterca tion with a motorist at a McDonald 's

drive- through, afrer he " rammed" his vehicle into rhe forward vehicle. Morgan rhen used very bad words (0 me female driver, and she called for 91 1 and rhe police. Morgan grabbed her hair and hit her in rhe face. A female bystander who cried co assist rhe other driver was hit and knocked to the ground. Morgan then lefr rhe scene and awoke later on a grassy median strip surrounded by officers and paramedic. Morgan was charged and (Tied. He was convicred on April 17, 2006, of assaulr and disturbing the peace and sentenced to 365 days in jail, with 305 days suspended. 50 days of electronic monitoring, fined $ 1,266, and placed on rwo years supervised probation. Ir also came our lhat Morgan had received a one year deferred judgmenr upon his conviction of misdemeanor assault and disturbing che peace: ill 2001 and that he had fa iled to report chat conviction as required by law.

REPRJMAND,

j.1'. ATKJNSON. jR .• Bar No. 76003 . of Fon Smith, Arkansas, was reprimanded and fined $750.00 by Committee Consent Findings & Order filed july 20. 2007. on a Complail1r filed by james Kelly Haynes in Case No. 2007-030. for viola tion of Rules 1.1 . 1.2(.). 1.3. 1.4(a)(3). 1.4(a)(4). and 3.4(c) . During june 2005. Mr. Atkinson was appointed by the Circuir Court ro represenr Mr. Haynes in his Rule 37 Petition proceedings. The Rule 37 Petition was denied by the C ircuit judge. Following rhe hearing on Augusr 11 , 2005, Mr. Haynes asked Mr. Atkinson if he was goi ng ro appeal for him. Mr. Arkinson advised thar he would nor do so. However, on August 25. 2005. the C ircuit judge appointed Mr. Atkinson ro pursue the appeal ro the Arkansas

36 The Arkansa~ La"ycr www.arkbar.com

Supreme Court. Mr. Haynes heard nothing about the appeal for several weeks after chat appoimmenr. On October 18. 2005. Mr. Atkinson wrote Mr. Haynes and provided him rhe office address. That was the lasr coml1lunicarion Mr. Haynes had with Mr. Atkinson. The Court Reporter requcsred an Extension of Time to prepare the rranscripr

in December 2005. The Court gramed the request. A Second Order was entered on December 20. 2005.

On j anuary II. 2006. Mr. Haynes wrore a leuer ro Sue Newbery, Criminal justice Coordinaror, co ncerning Mr. Atkinson and his failure to respond ro rhe leuers Mr. Hayncs had sem . The following day, Mr.

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Colin M. Johnson University of Arkansas School of Law - 2007

have joined the firm as associates

Sidney P. Davis, J r. Constance G. Clark Wm. Jackson Butt 11 Kelly Carithers Don A. Taylor John G. Trice Mark W. Dossett

Tameron C. Bishop Casey D. Lawson J.R. Carroll Tisha M. H arrison Chad Gowens Jeff Fletcher Joshua D. McFadden Colin M . Johnson

Tilden P. Wright III o/counsel

P.O. Box 1688 19 East Mountain Street Fayetteville, AR 72702

(479) 521-7600 www.daviswrightlaw.com

Haynes wrote a lener CO the Ci rcuir Judge in Forr Smith and requested new counsel.

Judge Marschewski denied the request. Mr. Haynes sent M r. Atkinson an Inmate

Phone Call system sheet for Mr. Atkinson to complete, bur he never sent it back. On

February 7, 2006, Mr. Haynes wrote Mr. Atkinson agai n but he did not respond to rhe

Icner. Ms. Newbery wrote Mr. Haynes on May 5, 2006, and advised that no transcript

had been lodged penaining to the denial of the Rule 37 Petitio n. Mr. Haynes wrote Mr. Atkinson again on September 8, 2006, bur

he did not respond ro that lencr either. Ms. Newbery sent other leners to Mr. Haynes

on Ocmber 26, 2006, and on November

®

H

HE N R Y LA W FIR M

Actions

17, 2006, confirming that there was no

appeal pending on the denial of the Rule 37 Petition.

On February 2, 2007, the Sebastian County Ci rcuit Clerk sent a letter to Mr.

Haynes advising that a transcript had been fiJed and that the maner was now before the

Arkansas Supreme Court. After rece ipt of the iencr Mr. Haynes again wrote Ms. Newbery.

In her letter of response, she advised that there was no record of the trial courr record

being tendered ro the Clerk of the Arkansas

Supreme Coun. After rhe Court Reponer filed the transcript with the Circuir Clerk's

office. Mr. Atkinson rook no action to

perfect the appeal even though he had been

appo inted to do so. until he filed a motion for belared appeal on April 20, 2007.

Mr. Atkinson admitted the conduct as set fonh in (he form al disciplinary complaint.

He also admitted that he had experienced

previous problems in handl ing pOSt­conviction proceed ings such as this one

involving Mr. Haynes. There was aJso an adm iss ion by Mr. Atkinson that he did not

keep Mr. Haynes informed of the status of

the matter nor did he inform him that no

app«.J had been pursued. Following rhe filing of the formaJ disciplinary complainr.

Mr. Atkinson's Motion for Belated Appeal in (he Haynes' maner was granted by the

Arkansas Supreme COUT[o As a result, Mr.

Haynes is aJlowed the appellate review he

requested.

W ILLIAM SCOTT DAVIDSON, Bar No. 81044 , of Jonesboro, Arkansas, was reprimanded and fined $500.00 by Committee Findings & Order filed August

17, 2007, in Case No. 2006-157, on a complaint fil ed by Unired Srares Chief Bankruptcy Judge Audrey Evans, for viol arion of Rule 8.4 (d). Mr. Davidson

represented Larry Gene Hawkins in a Chapter

7 bankruptcy case filed Ocrober 16,2005, as No. 05-28385. One of Hawkins' creditors, Daedong-USA. lnc., represented by attorney

John Peel , filed an adversary proceeding (rhe "AP") on January II , 2006, as No. 06-ap-

01025. The cases were assigned ro Judge Evans. On February 22, 2006, the AI' case was set for triaJ before Judge Evans on May

3 1, 2006. O n May 12,2006, Judge Evans enrered her Order conrinuing the trial of the AI' case ro November 8, 2006. On O crober 3 1, 2006. M r. Davidson filed a motion for

Vol. 42 No. 4/ Fall 2007 The Arkansas lawyer 37

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· . conUlluance, staring as

Arkansas law license was ro be slispended fo r

a momh begi nning the nex t day, November I, 2006, as a resul t of a sanction against him

in Commi ttee Case No. crc 2005-085. Mr. Peel fi led a response. The Court granted rhe

Illotio n by Order enrcred November 9, 2006. and referred the mafrer ro rhe Committee.

C PC 2005-085 was a complailH by G lenda Tippitt aga inst M r. Davidson. At a public

hearing conducted on August 18, 2006, the Panel announced that it would impose

a one 111 0 nth suspensio n of license on M r.

Davidson, to only become effective almost cwo and one half months lacer, on November

I , 2006, as a courtesy to him and his dients , [0 give him rime ( 0 get his practice affairs in

o rder and (0 protect rhe inreres rs of his clients who had matters that miglH have hea rings

or trials in the few months after August 18,

2006. Mr. Davidson apparently failed ro

noti ty either Mr. Peel o r the Court prior ro Ocrober 3 1,2006, that his law license was to

go inro suspended srarus the next day.

T IMOTH Y MARK HALL, Bar No. 96043,

of Huntsville, Arkansas, was reprimanded and fi ned $1 ,000.00 by Commirree Findings

& Order fil ed September 10,2007, in Case

No. 2007-04 1, on a complaint by Kenneth Braswell , fo r violarion of Rules 1.1 , 1. 2(. ),

1.3, 1.4(a)(3), 1.4(a)(4), 1.5(b), 8.4 (c),

and 8.4(d). Mr. Braswell hired Mr. Hall ro

help him wi th a matter involving his fo rmer employer, who had not paid Mr, Braswell

the funds he believed were due him. Me

HaJl met with Mr. Braswell and discussed

the maner and then advised Braswell that

he owed no funds fo r the meeting and that he should try to handle the matter on his

own. Mr. Braswell set up a meeting with his fo rmer employer. M r, Hall advised that

he would go as a fri end. Me Braswell 's former employer refused to meet with Mr.

Hall in the room, so Hall left the meeting. M r. Braswell then contacted M r. Hall after

the meeting to let him know that he would need representation, Mr. Hall agreed to

send a letter to the fo rmer employer and (Q handle all other matters involved up

ro the poinr of filing a lawsuit fo r a fee of

$750, There was no written fee agreement presenred to Me Bra5\vell , and there was no

explanation of rhe rate or basis of the fee (Q

be charged. Mr. Hall did no t send the lerrer

ro the fo rmer employer as agreed upon with Mr. Braswell. He did no t return telephone

calls or messages left for him. After he was terminated, he [Old Mr. Braswell thac he

had a lor of cime in me matter and thar he

charged $ 125 per hour for his work. He

also sea ted that he had prepared the letter, but he did not give Mr. Braswell a copy of

it. M r. Hall fa iled to file a response to the Complaint.

ROY C. "BILL" LEWELLEN , Bar

No. 82093, of Marianna, Arkansas,

was reprimanded and fin ed $5,000 by

Committee Findings & O rder fi led September 24, 2007, in Case No. 2007-056,

on a complaint filed by Marsha Warren,

for vio lation of Arkansas Model Rules 1.1, 1.3, 1.4(a), 1.5(c), 1.1 6(d), and 8.4(d). In

September 2002, Ms. Warren of Norm Lirde

Rock employed Mr. Lewellen ro represent

her in her claim fo r injuries received when

bitten by a dog owned by Matthew Holder on Auguse I , 2002, in south Texas. She did

not recall ever signing a contract or agreement

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Actions

Keith, Miller, Butler Webb,PLLC

Keith, Mille r, Butle r & W ebb, PLLC

is pleased to a nnounce tha t

Hadley M. Hindmarsh h as jo ined the Firm as an Assoc iate

Sean T Ke ith

Andrew R. Mil ler

Stephen W. Buder

Billy Bob Webb

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J. Chrisropher Harris

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R. Austin O yler Hadley M . Hindmarsh

224 SOUTH 2ND STREET, ROGERS, AR 72756 479-621 -0006 (Phone) · 479-631 -6890 (Fox)

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for legal services and has no copy of one, bue

recalled that Mr. Lewellen rold her his fee

would be 25% of any recovery. Thereafter she had coneacts from time-to- time on her

matter with Mr, Lewellen and with G ary

Austin, an atrorney who worked with him.

She had increasing difficulty contacting Mr. LeweJlen about her matter and obtaining

information about its status. Her avai lable

long distance telephone records fcom

November 2002 - Augusr 2004 reflect at least 12 1 calls to Mr. Lewellen 's numbers in

Marianna. Most of these were very short calls in which she left a cal l back. In frustration,

Ms. Warren sene Mr. Lewellen a lener on

May II , 2004, terminaring his services as

her attorney and requesting me rerum of al l

her documents. The letter was sem certified mail and returned undelivered .

On September 23, 2004, Mr. Lewellen and

Mr. Austin fi led suit for her in the United

Scates District Court in Helena, as No. 04-

CV- 173, againsr Mm hew Holder, descri bed

as a res ident of Texas. Service by mail was obtained on M r. Holder. O n October

29, 2004, Mr. Holder's m orneys fi led a

Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer 39

La\l'ijer

Motion (0 Dismiss and Brief, alleging lack

of jurisdiction over him in Arkansas. On

ovember 22.2004 , Ms. Warren's attorneys

filed a Response (Q rhe Motion CO Dismiss. She h:td always li ved in North I.irde Rock. and did not live in any place that cou ld be

considered as in [he Helena Division of the

Eastern District of Arkansas, which is where Mr. Lewellen filed her lawsuit.

O n November 27, 2004, she wrote Mr.

Lewellen again, informing him she was

terminating his services and [Q send her rhe

file. The "green card" for ccnified mail was

signed for on November 29. 2004. In spire of

being terminated by her earlier, on December

7. 2004. her attorneys filed a Motion to Transfer her case to the United States District

Coun in tile Southern District of T exas.

Galveston Division . She was not consulted about this before they filed ir. On December 2 1, 2004, her anorneys flied a Morion to

Voluntarily Non-Suit her Arkansas case. She

was nor consul red abour this move before

they fi led ir. That Motion was gramed by the

Court's Order fi led December 29,2004. Ms.

Warren only learned abom this O rder some rime larer.

After she learned of the "non-suit ," and that

it meanr she had one year from December 29, 2004, within which to refil e her case

somewhere, and that it did not appear Mr. Lewellen was going to refl le ir in Arkansas

or Texas, she sought a new anorney. No anorney she consulted would lake her case withour a lener from Mr. Lewellen that he

was 11 0 longer involved in it and that he would not' claim a fee from her claim if a

recovery was obtajned. Ms. Warren requested Mr. Lewellen rerum her file. To date she has

not received the file or a copy. She requesred that Mr. Lewellen wr ite a letter fo r her use

that he no longer represented her and would claim no fce trom her case, so she cOll ld rry TO

engage anQ[her lawyer to handle this matter.

To date she has received no such letter.

In lare Occober 2005, she fi led a complainr

aga inst Mr. Lewel len with the Com mittee

on Profess ional Conduct. On November IS,

2005, the Office of Professional Conduct wrote Mr. Lewellen about her complaint and

situation. Mr. Lewellen did nOt respond to

the lener. In late 2005. Ms. Warren tried

ro contact the insurance carrier for the dog

owner about settlement of her claim. By [hen rhey would nor talk with her, probably

because they knew her case was "dead," nOt having been refil ed within one year afler lhe

non-sulr.

Mr. Lewellen responded that the Warren

file was handled by his associate, Gary Aust in, who supposedly misled lewel len

inro thinking the Warren maner was being

properly handled. Lewel len claims he was nor aware of the suit fi led for Ms. Warren and

did nor sign same. In rebuttal , Mr. Austin

vigorously disagrees with Mr. Lewellen 's

vemon of what happened in the Warren

maner.

JIM ROSE, III , Bar No. 79247, of F3yeneville. Arka ns.,~. was reprimanded

by Committee Findings & Order filed

August 17, 2007, in Case o. 2007-049. on a compla int filed by Pamela E. Fischer,

for violation of Rules 1.1. 1.3, and 8.4(d).

On April 3, 2002, Mr. and Mrs. Fischer

hired Jim Rose, III , an attorney practicing

primarily in Fayenevi lle, to represent them

concerning an investigarion being pursued by the Internal Revenue Service and :my

appeals arising out of any criminal charges

which might be fi led. Mr. Rose and anmher

anorney. Rick E. Woods ofFaye[tevilie. were

paid a tOtal of $30 ,000. The check cleared the Fischers's bank the day a.fter it was

wrinen. The Fischers were refe rred to Mr.

Rose and Mr. Woods by Harry McDermott,

another anorney pract icing in Fayettev ille.

When Mr. and Mrs. Fischer flrsr mer

with Mr. Rose and Mr. Wood to discuss

their situation. [he artorneys comacred the IRS . The Fischers were informed that the

$30.000 covered investigation. [rial and appeab. T here was one meering with rhe

IRS and both Mr. Rose and Mr. Woods

an ended . During O<.--ce mber 2003, Mr. Fischer was charged with income £ax fraud.

Mrs. Fischer was never charged.

In early May 2004, Mrs. Fischer's husband

was advised to take a plea deal because rhe

case was so huge and blatam that, if he did nor take the deal, the government would fi le

the charge of obstruction of justice against

Mrs. Fischer. C harges were not filed against

Mrs. Fischer. The sentence imposed after

entry of the plea was harsher and nor whar had been explained to Mr. and Mrs. Fischer,

and they were ext remely upset. As such, Mr. Fischer wanted an appeal of the sentence ro

be pursued by Mr. Rose. Mr. Fischer filed a post-convIctIon

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proceeding after being sentenced (0 a much grea ter amount of time than he was informed

by his anorneys, Mr. Rose and Mr. Woods. The hearing on [he post-convict ion pleading

was held on November 15, 2005. Following the filing of rhe post-hearing briefs by bmh sides, Magistrate Judge Beverl y Stites

Jones scm a request thar bmh sides submit briefs on dlC issue of a requested appeal. Magistrate Judge Stites denied the Section 2255 I11mion filed by Mr. Fischer. Judge Jimm Larry Hendren filed his Order in rhe matrer 0 11 Ocrober 1 I, 2006. Judge Hendren specifically found that Mr. Fischer clearly conveyed his des ire [Q appeal and that his anorneys (Rose and Woods) did nor fil e a timely Nor ice of Appeal. Based upon this,

the Coun found that Mr. Fischer received ineffective ass istance of counsel. Based upon his findi ngs, Judge Hendren set a re­sentencing. Following me re-sentencing, Mr. Fischer's rime of incarceradon was reduced from 46 momhs to 35 momhs. The fin e and the restitution remained me same.

In responding to the formal disciplinary complaint, Mr. Rose denied that he fai led to file a timely Not ice of Appeal and explained that his diem , Mr. Fischer, never clearly conveyed his desire to appeal. According to Mr. Rose, the only time me word "appeal " was used was when his client asked immediately foHowing senrencing "can we appeal this." Mr. Rose replied that "yes ," Mr. Fischer cowd, bur thar then was nOt rhe time [0 discuss it. Mr. Rose offered that he explained the fmiliry of an appeal to Mr. Fischer and then suggested that he come to his office to discuss it further. Mr. Rose advised the Committee thar Mr. Fischer never came to his office or called him [Q discuss an appeal after they left the sentencing. Mr. Rose averred thar he would have filed a Notice of Appeal if Mr. Fischer had ever requested him to do so.

Mr. Rose dispured the infonnal"ion provided thar Mr. Fischer comacred his office three times following the sentencing. M r. Rose said that, if that had occurred, he would have returned the telephone cal l. Mr. Rose also explained that he did nOt remember

making the statemenr that Mr. Fischer "no doubt wanted to appeal" during an interview with the Federal Public Defender and their invest iga tor, as testified to by Mr. Woods and the inves tigamr during the evidemiary hearing in November 2006. Mr. Rose stared

[hat if he did make the statement, he was only [Q say it was evidenr two (2) years after that sentencing hearing that M r. Fischer had

wanred to appeal. I n concluding his response, Mr. Rose offered

that Mr. Fischer is actually betrer off than he would have been if an appeal had been fli ed. There is no doubt in Mr. Rose's mind thar had Judge Hendren 's decision nor to accept

Lw\ycr DisCiplillJI)' Actions

the plea bargain and {Q go with the new higher loss been appealed, it wou ld have been affirmed because {here was norhing faulty in the reasoning or decision. However, because Mr. Fischer filed [he pleading he filed and was able to ge t back before Judge Hendren, he was gran red a new sentencing hearing and Judge Hendren reduced Mr. Fischer's rime of incarceration. Wh ile remaining respecrful

Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer 41

of Judge Hendren's decision, Mr. Rose did nor agree with it, and cominued to maimain mat Mr. Fischer did nor convey his des ire

to appeal.

ROY EDWARD THOMAS. Bar No. 73 122. of Batesville. Arkansas. was reprimanded and ordered to pay $ 1.200.00 in restitution by Committee Findings &

O rder fi led August 24. 2007. in Case No. 2007-025. on a complaint fi led by Fred Jones. for violation of Rules 1.2(a). 1.3. 1.4(a). 1.16(d). 3.4 (c). and 5.5(a). Mr.Jones of Batesville, who was rhe Pres ident of The Electric Company, incorporated, consulted with Mr. T homas in March 2004 about

fil ing a business bankruptcy. Mr. Jones paid Mr. T homas his requested fee of $ 1.200.00 for the bankruptcy service on May 13,

2004. Thereafter. Mr. Jones did not hear from Mr. Thomas directly about the status of this matter, although he did anempt [0

obtain information from Mr. Thomas and his office. A search of bankruptcy records fo r rhe Eastern District of Arkansas via PACER reveals no bankruptcy case filed for either Fred D. Jones or The Electric Company. Incorporated, by Mr. Thomas or anyone else. Mr. Thomas did nOt communicate with Mr. Jones afte r May 2004 that Thomas wou ld not represent Jones in this matter, nor has Thomas refunded [0 Jones the unearned fee. In mid-2004 . Sanders Plumbing Supply. Inc. a major credi[Or of the company, filed suit against Mr. Jones and The Electric Company, Inc., on a business debt that Mr. Jones intended to have discharged in the

bankruptcy that Mr. T homas was employed

to fi le. O n August 13. 2004. the creditOr obtained a default judgment against Mr. Jones and the corporation fo r over $65,000, wh ich Mr. Jones was unable [0 satisfy.

CAUTION:

Q. BYRUM HURST. JR .• Bar No. 74082. of Hot Springs, Arkansas , was cautioned, fined $500.00, and ordered to pay restitution of $2.2 12.36 by Commi ttee Find ings &

O rder fi led September 24 . 2007. in Case No. 2007-070. on a complai nt fi led by Lee Jablonski. for violation of Arkansas Model Rule 1.l 6(d). Mr. Jablonski was a parry in a divorce in Jablonski v. Jablonski. Faulkner County C ircu it Case No. E-97-73. which became final in Ju ly 1998. His appeal to

me Arkansas Court of Appeals, as No. CA-

99-1089. was affirmed as modified and reversed in part on September 6, 2000. Since September 2000, there have been numerous Petitions for Comempr filed against him and Citations for Comempt entered against him. In July 2003. he employed Mr. Hurst to sue his ex-wife for the harassmenr of the numerous Petitions for Contempt. Jablonslci and Hurst entered intO an agreemenr fo r representation on Ju ly 22. 2003. for a rerainer of $ 1 0.000. againsr which Hurst would bill at the rate of $200 per hour. The engagement le(ter a1 so stared dlt: $ 10,000 f(:rain(:f was "nonrefundable."

Jablonski paid H urst the $10.000. Afrer July 2003. Mr. Jablonski wai ted for

Mr. Hurst ro fi le sujr for him. On August

Business Valuation Forensic Accounting

Economic Loss

31. 2005. Jablonski signed a Complaint prepared by Mr. Hurst. No suit was fi led. Mr. Jablonski made telephone calls to Mr. Hursr at his office to fi nd out about the status of his case, bue he received no real substantive communicat ion from Mr. H urst.

By July 2006. Mr. Jablonski . despairing of M r. Hurst's inaction, contacted Hoc Springs atrorney Byron C. Rhodes about raking the maner. Mr. Jablonski signed a Fee Agreemenr with Mr. Rhodes on Ju ly 10. 2006. and paid Mr. Rhodes a $10.000 retainer. On August 16.2006. M r. Jablonski mailed a grievance against Mr. Hurst [Q the Office of Professiona1 ConclucL

Letters and documents were exchanged between the Office and Mr. Hurst from November 28. 2006. th rough April 2007. In February 2007. M r. Hurst provided a copy of his Jablonski file to Mr. RhuJc;~ ror his use in representing Mr. Jablonski. On April 24.2007. Mr. Hursr provided M r. Jablonski his first accounring for the $ 10,000, which showed $2.2 12.36 to be unearned. Mr. Jablonski has received no refund from Mr. Hurst. Mr. Hurst claimed Mr. Jablonski clearly agreed ro a $10,000 "nonrefundable" retainer for me representation. The written agreement berween them is unclear on its face, and under the c ircumstances present, upon Mr. Jablonski's term ination of Mr. Hurst's services, a refund of the unearned fee paid is requi red pursuant to Model Rule 1.\6(d).

C HARLES DWAJN OLIVER. Bar No. 200 1009, of Hampwn, Arkansas, was

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Lavryer Disciplin:'lIy Actions

cautioned and fined $1,000 by Commitree

Findings & Order filed September 19,2007,

in Case No. 2007-027, on a com plaint filed by Wi lson McCrackin, Jr., for violation of Rules 1.2(a), 1.3, 1.4(a)(3), 1 .~(a)(4), 3.4(c),

and 8.4(d). In December 2006, Mr. Oliver

was appoimcd [Q represent Mr. McCrackin

in his appeal [Q the Arkansas Coun of

Appeals. Mr. McCrackin's first appellate

attorney fil ed a Motion ro Withdraw and

for Substitution of Counsel in November 2006, specifically requesting that O liver be

appoimed. and Mr. O liver was mailed a copy

of the MOlion. W hen the Court of Appeals

granted the Motion, the Per C uriam Order

was mailed to Mr. Oliver and it included

the January 15, 2007, due date for Mr. McCrackin's brief Oliver did not file a brief hy that date. nor did he request an extension of time ro file a brief. He rook no action.

Mr. McCrackin wrote to the Supreme

Court'S Crim inal Justice Coordinator and

asked abo llt the brief. In her response explaining that no brief had been filed, she

copied O liver so that he would comact his

cliene He did nor do so. Mr. McCrackin's

prison records demonstrate that he was allowed to call Oliver and leave a message.

Mr. O li ver did nor rerum the message. The

Smte filed a Motion to Dismiss the appeaL

Mr. O liver did nor respond despite being

served. McCrackin filed a response and let the Cou rr of Appeals know that Oliver had nor been in touch with him. The Coun

of AppeaJs denied the Motion to Dismiss, removed Mr. Oliver as counsel of record and

appointed other counsel for Mr. McCrackin.

THOMAS A. YOUNG, Bar No. 92236, of

Marion. Arkansas. was cautioned and fined

$300.00 by Commi"ee Findings & Order filed September 28, 2007, in Case No. 2007-

066, on a complaint filed by Terry J. Nichols. for violation of Rules 1.1 , 1.2(a), 1.3, 1.4(a) ( I), 1.4 (a)(3) , 1.4(a)(4), 3.2, and 8.4(d). In

July2003, Mr. Nichols contacted Mr. Young

to represent him in claims for injuries fro m an auto accident in which he was rear-ended .

Young agreed to represent Nichols on a contingent fee basis. The accident occurred

on July 18,2003. The litigation to be fil ed

Involved a case of obvious liab ili ty because

Nichols was rear-ended by another vehicle

whose driver and passenger were illegally

attempting ro repossess iellols' vehicle. Nichols' vehicle was totaled and he susmi ned mjuries as a result of the accident. Young filed Nichols' Complaint on

ovember 28. 2005, aga inst Defendants

Chrisry Miller, Jerry Caner d/b/a J&C

Repo. AM Cash Fast, and Tennessee Title Loans. According to Young, he tried

numerous searches as well as other resources

to locate the defendants to serve them with

the Complaint.

After being served with the Complaint. Practical Venrures, LLC, d/b/a AAA Cash

Fast filed an Answer on December 27.

2005, denying that proper service had been

accomplished. However. its Answer also conrai lled an admission t11at it had remi ned J&C Repo O&C arc the initials of the

first named defendants) which appeared to effectively adm it that the driver was an agem

of that company. Young explained that he

was on vacation when the Answer was filed

by Practical Venrures LLC and one of his

secretaries filed it without showing it to

him .

On Jan uary 25, 2006, Young obtained an Order of Volunrary Dismissal withom

Prejudice of Defendant AAA Cash Fast.

He never took any act ion to amend the

com plaint to name Practical Ventures.

LLC as a defendam after dismiss ing AM Cash Fast. Young never discussed the non­

suit with Nichols. nor what effect it might

have on recovery for his claims for injuries.

Tennessee Title Loans had apparently

previously made a loan on the vehicle and

been paid in fu ll and was inappropriately

named as a defendant in the lawsuit. Young allowed the statute of limitation to expire as to one of [he proper parties. leaving Nichols with no legal recuurse agaj nst a parry who

could be held accountable and liab le for his

injuries and property damage.

On March 8, 2006, Young filed a Motion

for Extension of Time to Obtain Service on

C hristy M iller and Jerry Can er. Young stated that Nichols fired him on March 13, 2006.

There was no Motion or other pleading in

the fi le demonstrating. that based on his belief that he had been fired, Young took any

action to be rel ieved from representation . He

remained as cou nsel of record for Nichols on

the matter lhroughout the entire time the

maner was pending. On Morch 14,2006, Tennessee Tide Loans filed irs Answer to the Complaint. Young filed no other pleadings in the case file nor

sought any discovery. On July 24, 2006,

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Young filed anorher Motion for Extension

of Time to serve Chrisry Mi ller and Jerry Curer. Young asked for and received umil November 23, 2006, to perfect service on

Ch risty Miller and Jerry Carter. Young presumably was unable to locate the driver and her business parmer. Carter is a convicted child rapise Attached ro

the formal disciplinary complainr was

the primout from two differclH web sites li sting information from the Tennessee

Sexual Offender Registry with information

including an address for Mr. Can er. Some law enfo rccmcnc agency or the information

conrained in these on-line registries could

have ass isted Young in locaring Can er, had Young followed through with reques ting

information.

Young rook no action to fi le a Warning

Order in o rder to perfect service after he

was unable to obtain service through mail

or personal service. The time for obtaining

service expired before Young rook any other

action. On January J 9. 2007. witham discllssing the marrer with Nichols. Young

fil ed a Mmion to Nonsuit the cause of action. The O rder was enrered that dare as

well. Nichols learned aLi of this by going to the C rincnden County Ci rcuit C lerk's

office and reviewing the file.

During the period of time after Young filed

the Complainr and he finally dismissed the maner. Nicholsdid nm have communication

with him. Young did not rcturn telephone

call s. On (wo occasions when Nichols vis ited the office he was unable [0 speak with

Young. O n March 8, 2006, N icho ls wrote

Young and delivered the letter [0 him. asking

Young [0 release the fi le ro him. Young did

nm do so. nor did he COntaCt N ichols afte r receiving the lener.

N ichols again wrote Young in January

2007, requesting that Young release the file,

witham lien. N ichols offered [Q pay Young $500 to cover his out of pocket expenses. Nichols included his cell phone number

along with his address so Young would

be able fa reach him . It was after Young received me Icner that he flied the Malion

co Nonsu it and obtained the Order graming the same. Nichols was grea tly concerned that

Young's actions and inaction have caused him to lose any opportu ni ty he may have

had to recover for his injuries.

Young denied that he was responsible for any prejud ice to N ichols because he djd not

believe he had any obligation co N ichols afte r March 13, 2006. H e placed the blame

for the maner being barred with Nichols for

nor picki ng up his flle in a timely manner in March 2006 . •

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Endnotes continued from page 12

reader's conveniem reference, and some observations are jnduded to dem­OIlSITatc the passion mat the debate has engendered. Note, Arkansas's Civil j ustice R<form Act of 2003: Who; Cheating Who? 57 A RK. L. REv. 65 1 (2004) (generally predicting doom for (Of( reform , and arguing that "Act 649 is certain to much every civil law­suit in Arkansas in some way," id at 695, which is a vast overstatement); Robert B. Leflar, How the Civil justice Reform Act Chongf!5 Arka!lSilS Ton Law, 38 Aruc LAw 26 (2003) (conduding that Act 649'5 provisions create "sig­nificam changes but n Ot a revolution in Arkansas tort law." Id at 28); Janet A. Flaccus, joint and Several Liability and Pannmhip Law, 2003 ARI" L. NOTES 79; Recent Developmems, Civil }ustiu Reform Act of 2003, 56 Aru" L. REv. 703 (2003); Note, To Truly Reform W. Must 8. Inform.d· Davis v. Parham, the SeparatioTl of Powers Doctrine, and th. Constitutionality of Ton Reform In Arka!lSilS, 59 ARK. L. REv. 78 1 (2006) (attempting (Q predict how the Court will approach Act 649 issues based on ics decision in Davis v. Parham, 362 Ark. 352 (2005»; Robert B. LeAar, Th. Civil justi« Reform Act and the Empty Chair, 2003 ARK. L. NOTES 67; Survey of Legiskltion, 26 U. ARK. Lrrn.E ROCK L. J. 44 1 (2004); Joseph A. Falasco,

46 The Arkansas Lawyer www.arkbar.com

Sizing Up a Multi-Party TonftfIJor Sui' in Arkansas: A Tille ofT wo Laws - How Fau/t Is, and Shouft{ 8., Distributed, 26 U. ARK. LnTLE ROCK L. J. 25 1 (2004) (an exceUem review and analysis of the history and doctrine of liabili ty tn multi-party cases in Arkansas); ste also Ark. O p. Atty. Gen. No. 2005-014 (April 2 1, 2005) (answering the ques­tions presemed, which dealt wi th the limitations on joint and several liabili ty. and then speculatin~ on how "equi table considerations might conceivably bear on the determination of liabi lity" in a footnote).

2. Summerville v. Thrower, __ Ark ~ No. 06-50 1 (Ark. S. Ct. March 15,2007).

3. T hrough August I , 2007, the report­ed federal cases are: Dalrymple v. Th. Ha"is Waste Managanmt Group, Inc., 2005 WL 2456239 (E.D. Ark., Oct. 4, 2005) (case accrued before effective date of Act 649; held that "the legislature left no doubt that the statute does nOt apply rerro~ctively") ; P"')' v. Ethicon, 2006 WL 3445250 (E.D. Ark., Nov. 28, 2006) (refusing to consider constitutional challenges because Arkansas Attorney General did not receive sufficient notice); Moss v. American Altunative Ins. Corp., 2006 WL 3 147438 (E.D. Ark., Nov. I , 2006) (applying Act 649's standard for award of punitive damages without discussion); Whuler v. Cor/ton, 2007

WL 30261 (E.D. Ark. , Jan. 4, 2007) (same).

4. Sr<, e.g., Soillt! Regina Colkg. v. Russell, 499 U.S. 225 (1 99 1), discussing the business of federal-court decis ions on issues of state law under the Erie Doctrine.

5. McKinney v. Bishop, 2007 W L 700956 (Ark. March 8, 2007).

6. Shipp v. Franklin, 2007 WL 17 1327 1 (Ark. June 14, 2007).

7. In one other case, Yeakley v. Doss, 2007 WL 1560550 (Ark. May 3 1, 2007), the Supreme Coun cited and applied Act 649's defini tion of the standard required for an award of punitive dam­ages in deciding an issue on the admis­sion of evidence.

8. 3 10 Ark. 138, 835 S.W.2d 843 (1 992).

9. Summerville, slip op. at 8. 10. Id. at 10- 11. I I . ARlc CoNST. amend. 80, § 3 provides

cllat the "Supreme Coun shall pre­scri be the ruJes ofJleading. practice and procedure fo r courts; provided these rules shall not abridge. enlarge or modi fY any substantive right and shall preserve the right of trial by jury as declared in this Constitution."

12. Summervi!k, s~p op. at 10-1 I. 13. Summervi!k, slip op. at I I. 14. Summerville, slip op. at II. 15. Y.akley v. Doss, supra n. 7, s~p op. at

10 (Glaze, J ., concurring) (emphas is added) . •

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A must~read for the practicing attorney

--====,....-/ ..---An interesting read

for all laymen

LAWRENCE E. DAWSON was born

in 1923 in Shreveport and grew up in

south Arkansas. He attended Magnolia

A&M College (now Southern Arkansas

University) and continued his prelaw

studies at the University of Arkansas

before entering its School of Law in

1945.

After receiving his law degree in

1948. Dawson set up a law practice in

Pine Bluff. During his private practice.

Dawson served as a U.S. Commissioner

and state representative for Jefferson

County. In 1954 he won the seat of

municipal judge and since then has

served on the bench in various capacities.

In 1958. he was elected chancety judge, a

position he held continuously until his

retirement December 31, 1998.

Even in "retirement," Dawson

continues to serve as judge-at-Iarge,

hearing cases across the state. Thus he

brings to this book a unique depth and

breadth of legal knowledge, which he

shares here for the benefit of all

practicing attorneys.

In addition, Dawson's recollections

impart a slice of local history and depict

a formative time and place that produced

an impressive number of Arkansas's civic

leaders, of which Dawson is an

outstanding example.

Vol. 42 No. 4/ Fall 2007 The Arkansas Lawyer 47

Plaint iff Attorney continued f rom page 16

The most notable example spri nging from

these previous " tort-reform" measures is the

inclusio n of the " locaJ iry ru le" in the medi ­

cal-malpracri ce act. It's a mindless obstacle

with no legitimate purpose that simply gives

med ical rortfeasors a way to avo id liabi lity if

the hurdle is not overcome. This hurd le is

a ll the more difficult to overcome in light of

the implicit (and someti mes explici t) agree­

ment between doctors nOt to testify against

other docrors in their home state.

Act 649 took this ru le a step further in a

provision that does actually focus on medj ­

cal malpracrice bur is nonsensical. It is the

same-specialty requirement in Section 18.

T his alteration of the expert requirement

in medical-malpractice cases deems that

o nly an expert " in the same specialry" as the

defendant is qualified to give an opinion.

Thus, if a dermatologist moonlighting in

an emergency room bOtches an emergency

delivery of a baby and is sued , only ano th­

er dermato logist may testify against him .

T hat's senseless. If o ne intends to build

ho uses, he should first become competent

to build ho uses. If one imends to delivery

babies, he should firsr become competent

to delive r babies. What his "specialty" is

should be beside the point. Juries need to

hear fro m experts who know how to build

houses and delive r babies irrespecti ve of their des ignated "specialties."

A less obvious result of this provisio n is

thar it erects a financial bar to many plain­

tifFs cases. Under this provision , multiple

experts may be required where one expert

would do. W henever defendants of differing

specia lties are parties to the case, an expert

fo r each specialty mUSt be retained whether

rhe practice of that specialty has anything ro

do with the case. Whether this fin ancial bar

was intended or nor, it is real.

Is this focus on the plaimiffs case appro­

priate? O ne of the purposes of the tort

system is to shift the burden of an inju ry

fro m the person injured to the person caus­

ing the injury. The elimination of joint­

and-several liabili ty discussed above under­

curs that goal significantl y. The who le idea

behind mis type of li abili ty is tha t multiple

wrongs come together to create an indivis­

ible injury. If any "allocation" of the degree

of harm a particular defendant is liable for is

done, it sho uld be between the wrongdoers

48 The Arkansas l awyer www.arkbar.com

nor (he victim.

Act 649 ends this process. Of course,

defendants wiJI cla im that it is unfair to

them to sho ulder a greater harm than what

they "caused." This logic ignores two reali­

ties: both defendants "caused" all the harm

and it is more fair than requiring the plain­

tiff who has lost a leg, an eye or his life from

sho uldering that harm. This reduction in

damage is at the core of the plaintiffs prob­

lem with Act 649.

Concluding Thoughts A Tennessee trial judge once commented

while ruli ng on a Illotion that how one looks

at th ings in cases often depends on how one

feels about tort law. In h is view, o ne rcason

we have tort law is to make society safer. To

protect people.

Regardless of the perspective one has,

all sho uld agree that Act 649 do~ .. just the

opposite. I t undermines the tort sys tem

previously in place and shifts costs to the

injured parry. It creates barriers co recovery

that are artificial , having nothing to do with

the merits o f the case. It docs far morc than

make cases hard to try. It makes o ur society

a less safe place to be . •

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Watch your email in the

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for an online member survey.

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Or go to www.arkbar.com

Book Review continued from page 28

in thar held by his Imperial Majes ry, dIe Emperor Maximilian. ShaH it be peace or war between us~ If the former, with your permission, I shall enrer your lines at once, claiming at your hands the courtesy due from one sold ie r to another. If the latter, I propose to attack you immedia tely.

Jenningros allows Shelby's forces to join him . O ver dinner a day later, as war stories are being shared, Dagmar asks Jenningros poim-blank his assessment of Maximilian. Jenningros describes the emperor as a poet and scholar and wine connoisseur who "can­not kill as we Frenchmen do" and who

"knows nothing of diplomacy. In

a nation of th ieves and cutthroatS he goes devoutly to mass, endows hospi­tals, says his prayers .... "

. .. "Still , Maximilian is. indeed. a man of virtue?" said Smith ponder­ously.

"O h. yes, General," Jenningros par­ried, "he is that ... but I find that little si ns arc sometimes less burden­some than grea t virtues."

Dupin chuckled, Smi th frowned , Shelby smiled. but Dagmar. ever undiverted •... quickly thrust imo the space trai ling (his witticism, saying. "So. Juarez will win?"

Now it was Jcnningros's turn to be taken aback. He stopped laughing, ... then in a subdued but sincere voice sa id , "Yes. of course."

"And so me good em peror wi ll lose

his lcingdom?" ... ... "M y dear corporal .. . all king­

doms are lost," he rejoi ned ."

T his is a fine piece ofliterarure. a commen­tary on history in general and the history of the Somh in panicular. As to ld, it is a tragic tale of a place in time and space thar has died. BlIt, in myths and dreams, and even, I think, in reali ry, death is nOt imrinsica1 ly bad , only necessary. Necessary to make way for something new and, in that vein, I fi nd comfort in the last word of the novel. "resur­

rected." •

Vic Fleming is a district judge for tbe City of Little Rock. He also teacbes Law lIud Literature lit fbe Willillm H. Bowe" Sebool of Law.

Charitible Immunity continued from page 22

known that, but for a mistake con­

cerning the identi ry of the proper

parry. the action would have been

brought aga inst the parry.

Ark. R. C iv. P. 15(e)

In Low. the Court allowed the amendment

to relare back to the dare of the o riginal

complai nt, bur in doing so seemed to rely heavily on the fact that the defendant had

not compl ied with the direct action stature's

requirement that charitable organizat ions

inform the plaimi fT aboU[ their li abili ry cov­

erage. See ARK. CoDE ANN. § 23-79-2 10(b) ("Any of the organiza tions or enti ties not

subject to sui t fo r [Ort ••• upon the request

of any person so injured or damaged shall

disclose the existence of any liabili ty insur-

anee ... ." (emphas is added)). Therefore, ir

is unclear how the appellate collns would rule on a situation where a charitable emi ry

had properly identified its insurance carrier

and the amendment was attempted after the sm(lI[C of limitations.

Followi ng the decis ions in L OlU and Sowders, rhe doctrine of charitable immu­

ni ty is back to where it starred. In short, if

after an analys is of the eight (8) facto rs illus­trated by George v. j effirsoll Hospital Ass'n, mpra, an organization is deemed charitable,

a plaintiff cannot bring suit against it. If the chari rable organi7..ation carries insur­

ance. however. a (imely action may be filed

aga inst the insurance carrier pursuant to

the direct action statu re, ARK. CODE ANN.

§ 23-79-2 10. While plaintiffs have challenged the

charitable immuni ty doctrine on innumer­able grounds for many years, me Arkansas

Supreme Court has stOod firm in uphold­

ing the doctrine, findin g that "[wJ hatever privileges or exceptions may be gran ted [Q

such chariti es by the state are not gratuities; for without schools, hospicals, churches and

libraries we should soon relapse inca a srate

of semi-barbarism, which would nO[ be for [he public good." Fordyu v. \\7omens Christian Nlltiolllli Library Ass 'no 79 Ark.

550,56 1,96 S.W. 155, 159 ( 1906) . •

'Special tlJlmks to Micbelle Ator of Fridoy, Eldredge & Clnrk for "Umvillg me to utilize her extremely well-written mnterinls 011 tiJl! history of tlJl! dmntnble ;,mmtnity doctri"e wbicb she origi1Ullly pre pored for the Arkallsas Ass0cU,tiOIl of Deft",se Collllse! itt 2004.

Vol. 42 No. 4/ Fall 2007 The Arkansas lawyer 49

In Memoriam

Ben Core

Ben Core of Forr Smith died August 15,

2007, at the age of 82. He served in the

U.S. Army Air Corps du ri ng World War II

as a radio operato r and side gunner in B- 17

Bombers, Aying 24 combat missions. H is

plane was shor down over Germany, and he

was wounded during rhe ju mp while exiting

the burning plane. He was men captured

on the ground and held as prisoner of war

fo r over six months. His medals include

the Purple Heart, the Ai r Medal with Oak

Leaf C luster, rhe European African-Middle

Eastern Theater Ribbon with Bronze Battle

Star and the Prisoner of War Medal. He

graduated from the University of Arkansas at Fayc[(cville and earned his juris doctor­

are degree from rhe University of Arkansas

School of Law. He entered law practice

in De Q ueen where he was elected as

prosecuting atto rney. serving two terms,

before moving co Fort Smith in 1964 ro

become a partner in the law firm of Daily

and Woods, later changed [0 Dail y, West,

Core, Coffman, and Canfield, where he

was managing partner fo r a number of

years. He had a d istinguished career in law

fo r 52 years, retiring at the age of 78. He

was named a disdnguished alumnus of rhe

U niversicy of Arkansas School of Law where

a scholarship was es tablished in his honor.

He was the founder of the Arkansas Defense

Research Counsel. He was a member of the

Arkansas Bar Association where he served as

chair of the Ethics Commin ee and served

on rhe Lawyers Ass isting Military Personnel

Commi[(ee. He was a Sustaining Fellow

of the Arkansas Bar Foundation and me

Arkansas Bar Association. He is survived by

his wife, Polly Anna Core; and his chi ldren,

M ichelle Core, Dr. G rady B. Core, and

Patrick K. Core.

Charles uChuck" Ray Roberts C harles "Chuck" Ray Roberts o f

Fayetteville died Ju ne 26, 2007, at ehe age of 48. He graduated from T exas C hristian U nive rsicy and earned his juris doc[Orate degree from me Universicy of Arkansas. He was an Air Force Veteran. He was a mem­ber of me Arkansas Bar Association where he served on the Fam ily Law Section. He operated Roberts Law Firm in Fayetteville.

SO The Arkansas Lawyer www.arkbar.com

He is survived by his pareIHs Billie G. and Mary H. Tiede Robercs; and a brother BiJlie "Robbie" Robercs Jr.

Howard Templeton Howard Templeton of Jonesboro died

September 3, 2007, at the age of 69. He

recevied his bachelor's degree from Arkansas

State Univers icy in 1963 and earned his

ju ri s doctora te degree from me Universicy

of Arkansas School of Law. He was in the

private practice of law from 1966 until his

election as chancellor and probate judge

in 1976. He was a past-pres ident and pas t

member of me board of direccors of the

Arkansas Judicial Council. He was a mem­

her of me Arkansas Bar Association and he

served in the U.S. Army Securi ty Agency for

three years. He is survived by his wife, Carol

T empleton; and daughte rs, Karen Buder,

Sharon McDaniel, and Elizabeth Vonen e

T empleton.

James F. Sloan III James F. Sloan III of Walnu t Ridge died

AuguSt 7, 2007, at the age of81. He served

in me U.S. Army Air Corps from March

1944 un til May 1946. He remained in the

U.S. Army Reserve as a commiss ioned offi-

cer until 1960. when he resigned wi th the

rank of capta in . He graduated with a bach­

elor of science degree from Arkansas State

College in 1949 and from the University

of Arkansas School of Law with an LL.B

degree in 195 1. He began practicing law in

Walnut Ridge in 1952 ae the offi ce of Judge

Percy C.unningham and conti nmed to prac­

tice law until 1995. He was a city atCO rney

fo r Hoxie, a depucy prosecuti ng atto rney

fo r Lawrence Councy and fo rmer juvenile

court judge fo r Lawrence Coun ty. He was

a member of me Arkansas Bar Associa tion,

the American Bar Association and was a past

president of the Randolph/Lawrence Coun ty

Bar Association. He is survived by his wife.

Elzine O. Sloan; and two sons, Robert Dan e

Sloan and David C lay Sloan . •

For information about

advertising in

The Arkansas Lawyer,

please contact Anna Hubbard at

(501) 375-4606, (800) 609-5668

or

ahubbard@arkbar.com

ArbnsJs BJr FoundJtion McmoriJls Jnd HonorJriJ

The Arkansas Bar Foundation acknowledges with grateful appreciatiml the

receipt of the flllowillg memoria/, h01101'arium alld scholo.rship c01ltributions

1'eceived durillg the p eriod june 21, 2007, through September 30, 2007.

IN MEMORY OF BEN CORE Judge John and Marietta Stroud Rex M. Terry

IN MEMORY OF P.A. "LES" HOLLINGSWORTH, SR. Robert L. Jones, III

IN MEMORY OF DANIEL SPROTI Judge Lawrence E. Dawson

IN MEMORY OF J UDGE HOWARD TEMPLETON J. c. "Jack" Deacon Hamilton & Colbert, LLP

SCHOLARSHIP CONTRIBUTIONS

WILSON & ASSOCIATES ETHICS SCHOLARSHIP FUND Wilson & Associates, P.L.L.C.

MEMORIAL GIFTS

Please remember the Arkansas Bar Foundation when you choose

to make a memorial gift honoring a fa mily member, a colleague

or a friend of the profession. Acknowledgments are sent by the

Foundation to the fam ily advising them of the contribution. T he

Arkansas Bar Foundation also receives and acknowledges gifts

ho noring ind ividuals for a special event in [heir lives.

Arkansas Bar Foundation · 2224 Cottondale L,ne

Little Rock • Arkansas 72202

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PAGE

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Affiliated Real Estate Appr.lJsers 51

Amencan College of Trial Lawyers 17

Arkansas Capital Corporotion 23 Ari<ansas Community Founcation 13

Ari<ansas.gov (INA) 34

Ari<ansas Investigations 39

MAP 30

Cul.,n & Company 35

Davis, Wright. Oark. Butt & Carithers. PLC 36

Dawson, Judge Lawrence E. 47

Deininger & Wingfield. P A. 35 Dickerson Law Fimn 41

Delta Trust 46

Francis Moms Finley 22 Go Next 38

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Keith. M,I.,r. Butler & Webb. PLLC 39

Legal Directories Publishing 4

Lexs~NexlS Inside Back Cover

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