A publrcatlOn of the ) Arklll/\(l\ Har ,\\wC/lIIiol1 •• II lli' online at \NWW ark bar com ..
Mar 27, 2016
A publrcatlOn of the ) Arklll/\(l\ Har ,\\wC/lIIiol1 •• II
lli' online at \NWW ark bar com
..
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PU BUSI-I ER AdrllnJII/ Bar AU«'iation
Phone: (501) 375-1606 Fu: (501) 375-1901 Ilomepage: www.arkbar.com
I. ... Mail: [email protected]
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
5
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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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Free access to this complete online Go Next Created by Association members legal research library. Available (0 members, des igned to assisc me
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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.
[email protected]. 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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be brought in by 3111endmem (A) has received sllch notice of rhe insti tution of the action that the parry will not be prejudiced in maintaining a defense on the merits, and (8) knew or should have
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Charitible Immunity continued on page 49
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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 [email protected].
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
Patron Wall at the new Arkansas Bar Center
Book
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 [email protected] 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
[email protected] [email protected]
• 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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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
Maty M. White Schneider
Kristin L Pawlik
J. Chrisropher Harris
Andrew H. Hadield
G. Nicholas Arnold
R. Austin O yler Hadley M . Hindmarsh
224 SOUTH 2ND STREET, ROGERS, AR 72756 479-621 -0006 (Phone) · 479-631 -6890 (Fox)
wwwark;urornQ'S com
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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Vol. 42 No. 4/ F,,1I 2007 The Arbnsas I.'mycr 4S
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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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 . •
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or
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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
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to make a memorial gift honoring a fa mily member, a colleague
or a friend of the profession. Acknowledgments are sent by the
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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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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
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Keith. M,I.,r. Butler & Webb. PLLC 39
Legal Directories Publishing 4
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