january 1972

Our deep appreciation for excellent legal counsel

OVER

FORTY

YEARS

And our sincere congratulations . . ..... .

JOE C. BARRETT

\ )

E. C. BARTON &: COMPANY OWN ERS AND OPERATORS Of"

'Building ,\fale ria ! Stores JONESBORO , ARKANSAS

JANUARY, 1972 VO l. 6 NO. 1

THE OFFICIAL PUBLICATION OF THE

ARKANSAS BAR ASSOCIATION

OFFICERS

Paul B. Young, President Henry Woods, Vice·President Robert D. Ross, Secretary·Treasurer

EXECUTIVE DIRECTOR

C. E. Ransick

EXECUTIVE COMMITTEE

James West, Chairman Phillip Carroll James B. Sharp Lynn Wade Dale Price John Mann

Ex·Officio

Paul B. Young Henry Woods Robert D. Ross John Lile J. C. Deacon James B. Blair Stephen Matthews Louis l. Ramsay, Jr.

EDITORIAL COMMITTEE

Robert D. Ross Philip E. Dixon C. E. Ransick

llfe

Arkansas Lawyer SPECIAL FEATURES

Mid-year Meeting & Standards Workshop III .......... ... 26 The World and The Law ........ ..... . Charles S. Rhyne 28

Canon 8 and A Rising Aspiration ....... .. . John P. Frank 6

Practitioners' Stake in I nternational Law ... . .. . ............... Joe C. Barrett 13

No-Fault Insurance .... ..... ......... Richard M. Marcus 17

Democratization ..................... Winslow Drummond 4

REGULAR FEATURES President's Report .....•.•.•.•............ Paul B. Young 3 Juris Dictum . ...... .... .. ... .. .............. C. R. Hule 15

Law School News ......•.....•.•.... Robert Brockmann 35

Oyez-Oyez . . .................... ... . . .. . .... B. Ghormley 2 In Memoriam . ....... .... .. . . ..•. ..• ......... . ....... . .. 36 Executive Committee Notes ....•.• .• . . . . Robert D. Ross 14

Published bl-monthly by the ArKansas Bar Association, 408 Donaghey Bldg., Littl e Rock, Arkansas 72201. Second class postage paid at Little Rock, Arkansas. Subscription price to non-members of the Arkansas Bar Association $6.00 per year and to members $2.00 per year Included In annual dues. Any opinion e)(pressed herein Is that of the author, and not necessarily that of the Arkansas Bar Assoclatlo"", Th e Arkansas Lawyer, or the Editorial Committee. Contributions to the Arkansas Lawyer are welcome and should be sent In two copies to the Arkansas Bar Center, 408 Donaghey Bldg., Little kUCk, Arkansas 72201.

All Inquiries regarding advertising should be sent to AdvertiSing Department, Ark· ansas Lawyer, Post Office BO)l( 4117, North Little Rock, Arkilnsas 72116.

By B. Ghormley

Jim Spears

Verlin E. Upton

James Van Dover, Marianna, is the new President of the Marianna Chamber o f Commerce. Robert E. Garner, formerly of Warren. has been appointed by Prosecuti ng Attorney Frank Wynne to serve as his Deputy for Bradley County. Herby Branscum, Jr., little Rock. wi ll open an off ice in Perryville at the Old Cafe Building on Mondays only starting November 22. 1971 . Two Pine Bluff lawyers, John Harris Jones and C. Wayne Mat thews , have entered into a partnership with offices in the National Building . Dick Jarboe an d Leroy Blanken ship , Walnut Ridge, have opened an o ffi ce in the American Legion Bu ilding in Imboden, Arkansas to be open for service on Monday, Wednesday and Saturday. Independence County held a special Memorial service for the late Judge Chartes F. Cole in Chance llor Robert Dudley' s cou rt with Keith Rutledge as master of ceremonies. Jim Spears. Fayetteville . as new ly elected second vice-president 01 the Un iversity of Arkansas Sludent Bar Association. will be the liaison with the Association . Verlin E. Upton. President of the Greene-Clay County Bar Association has in formed us that they hold meetings on the second Wednesday of every month in the Dining Room of the Motel at Rector. All are invited to meet with them . Municipal Judge J . G . Ragsdate, EI Dorado, has been elected president of the Municipa l Judges Assoc iation and Judge William R. Butler, Little Rock. is the new vice-president. Lynn Wade, Fayetteville. spoke to members of the Young Democ rats C lub at the Arkansas Student Union on prison reform. The law firm of Barrett, Wheatley. Smith and Deacon have announced that Tom W. Cardin , formerly of Batesville. has joined them as an associate. The law firm of Harkey and Walmsley. Batesville. are located in a new office building at 415 A llen Street. William Nash and J. Gaston Williamson , members of the law firm Rose, Barron , Nash , Williamson, Carroll & C lay, are members of the 1971 commi ttee of selection for recipients of Rhodes Scho larships in Arkansas. Mr. Nash will serve this committee as its secretary. Ray S. Smith, Jr. , Hot Springs. has been e lected chai rman of Judge J. G. Ragsdale

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the Board o f Governors of the Counc il of State Government an d is the first Arkansan to hold this posi t ion . Win slow Drummond. little Rock. discussed no-fault insurance at a meeting of the North Pulaski County Bar Association meeting . Bob Stroud. fo rmerly o f Desha. is now serving as attorney for the Arkansas Beverage Con trol Board. Allyn Tatum. Batesville. is the new president o f the Independence County Bar Assoc iation wi th Bill Walmsley. also of Batesville. serving as vice-president. Mitchell D. Moore. Osceo la, was elected new president o f the Nor theast Arkansas Bar Associ ation at its December meeting with Edward L. Maddox, Osceola. as Secretary-Treasu rer. It has been announced that James A. Mc Larty. Newport. has become a partner in the law firm of Pickens & Boyce.

BAR ACTIVITIES A prog ram on docket con tro l and

lawyers' fees was presen ted at the December 10th meeti ng of the Nor th east Arkansas Bar Assoc iation by Chairman Mitchell Moore o f th e Economics o f Law Pract ice Committee o f the Arkansas Bar Assoc iation . Fo rt y-seven lawye rs at ten ded the session . At the October 13th Meeting o f th e Ouachita Coun ty Bar Assoc iation . di scussions were held re minimum fee schedu les an d conce rning ways fo r the Associat ion to be more active and better serve the in

terests of Ouachita Coun ty citizens and allorneys. Some 15 allorneys attended. Congressman David Pryor and Circu it Judge Melvin Mayfield of EI Dorado were honored guests at the Bar Bar-B-Q for members and their wives. The Washington Coun ty Bar ASSOCiation IS sponso ring two Boy Scou t Explo rer Posts. These Posts limit their ac tiVities to law re lated subjec ts. as ou r prison system. the drug problem . pre-law curriculums. etc. AssoC iation members su pervi se the programs and provide material s. Girls are permitted to belong to these Boy Scout Explo rer Posts. The WaShing ton County Bar Association is also engaged in working wi th Pro fessor Charles Carnes o f the Law School In thiS connection . The Pulaski County Bar ASSOCiation has had a number o f luncheon meetings this Fall. with guest speakers Inc ludin g Corrections CommiSSIOner Terre l Don Hutto . A special committee has been working for the proposed new Pulaski County Community Correctional facility. A week ly breakfast. with somewhere between 10-20 faithful participants. is he ld to discuss the current advance sheets of the Arkansas Reports. A public defender office is being sought for Pulaski County.

PIISIIIIT~S BIPOIT By Paul B. Young

The action of the Arkansas Supreme Court in raising the annual license fee to make possible a full time disciplinary office I S a step every practic ing lawyer in Arkansas should support. If we are honest with ourselves. we have to admit that the legal pro fession has not been shouldering its public responsibility in this area. That was the conclusion reached by the committee on the Evaluation of Disciplinary Procedures which the American Bar Association established in January of 1970 with the former Supreme Court Justice Tom C. Clark as its Chairman.

AI our annua l meeting in June. 1970. Mr. Justice Clark told the Arkansas Bar Association that " the enforcement of disc ipli ne in the United States is practically nil. practica lly nil. n-I.1." Mr . Justice Clark did pay Arkansas a compliment on It s procedura l rule regulating professiona l con duct of attorneys as being "one o f the finest structures in disciplinary enforcement of any state:' But he criti cized the legal professIOn In Arkansas for providing too little money to enforce "your excellent structure. the equal of which I do not know exists In any o ther state." In praising the procedure. Justice Clark was talking about the fact that In Arkansas. the Committee on Pro fessional Conduct is also under control of the Supreme Court. Since the committee must answer to the court there is not the conflict of interest that might eXist If lawyers were judging other lawyers without the authortty o f the court behind them . Also the Supreme Court commi ttee has the power to hold private hearings and if It fi nds that a co mplaint is justified it may reprimand the offending lawyer without any publicity or it may go ahead with the complaint in circuit o r chancery court. While the Arkansas Bar Association has Its own grtevance com mittee. the on ly sanction it can give is expulsion from membership and as a prac tical matter, it can only act in a very limited way.

The Arkansas Bench and Bar accepted the challenge. Wh i le the Arkansas Bar Association cannot take c redit for the ac llon of the Supreme Court, we can properly say that the o fficers and Grievance Committee gave their active encouragement and cooperation . As a result of Jack Deacon 's efforts. the Arkansas Bar Foundation obtained a $10.000 grant from the Leon Falk Family Trust of Pittsburg " for the purpose o f aSSisting in the implementation of the recommended procedures for disciplinary enfo rcement of the members o f the bar in the State of Arkansas." This money will be made available to the Supreme Court Committee on Professional Conduct and will probably be used for capita l expenditures necessary in setting up a full time office. The Falk Trust has been very interested in the legal profession

3

over a space of many years. They provided the lunds needed by the American Law Institute to carry out its restatement of the law practice.

Without any doubt the number of lawyers involved in disciplinary problems is very small. (One of the great benefits of a full time of fi ce to the profession will be the prompt disposition of unfounded complaints.) However, those few instances where discip linary action ought to be taken attrac t a dispropo rtionate amount o f public attention. If we say that it is in the public interest that the members of the legal profession in the bench an d bar have exclusive contro l of discipline . then it fo llows that the public has a right to ho ld us accountable to handle it in a satisfactory way . The prime purpose o f a full time disc ipli nary office is, o f cou rse. to bring Into play more prompt and effective di scipline in Instances where it is appropriate . But it is bound to improve the stature of the profession both in fact and In the pubhc view.

Probab ly you read accounts in the press concerning organi zat ion of a nonprofit corporation ca lled A rkansas Private Legal Services, Inc. as a vehicle to set up a pilot Judicare Program in Arkansas. Under Judicare. a lower income person who needed legal services would choose a private attorney of his own. Depending on the client's finan cia l status. all o r part of his attorney's fee would be paid by the agency administering the Judicare Program - in thi s case Arkansas Private Legal Services, Inc . There are severa l proposa ls now under consideration before the Congress concern ing free legal services but the Judicare concept is preferred by those who wish to preserve the c lient's right to c hoose his own attorney .

Of cou rse. the implementation o f this program is dependent upon the necessary funding bei ng secured . Oscar Fendler o f Blytheville. a member o f our Legal Aid Committee who has been a very active and enthusiastic advocate of Judicare (as on ly Oscar can be) , met recen tly with attorney John Mitchell at Washington in an effort to obtain federal funds for the new Arkansas Corporation . We are hopeful the money will be obtained and that a p i lot projec t proposed for Northwest Arkansas will demonstrate Judicare is an appropriate 'and a preferred way of providing free legal services. You will be kept advised and in fact when Judicare beco mes a realit~ you will be asked to cooperate by taking a part in the program. In order to preserve for the profession as we know it a substan t ial part 01 the future prac tice o f the law every member of the practicing bar, no matter how busy or how successful, is going to have to become informed and personally involved on this su bjec t o f legal aid .

Arkansas Bar Association 408 Donaghey Building Little Rock, Arkansas 7220 I

For additional information, contact: Winslow Drummond, Chairman Constitution and By-Laws Committee

NEWS RELEASE

Democratization

As of January 1 the floor is open for nominations to the House of Delegates which will carryon the business o f the Arkansas Bar Association . The first meeting of the House will take place in Hot Springs in June 1972.

In order to insure transi tion to a truly representative Association , a full comp lement o f Delegates must be du ly nominated and e lected prior to May 8.

The new constitut ion of the Association permits nomination for the o ff ice of delegate upon petition of on ly three Association members in the district from which a particular delegate is to be elected . The form o f the petition is not prescribed as such . The constitution merely provides :

"The membership of the House of Delegates shall consist of voting members of the Association resid ing within a particular Delegate District and elected by members of the Association residing within that District. Three (3) members of the Association residing within a Delegate District may nominate an Association member within that District for the office of Delegate by filing a petition in writing with the Secretary-Treasurer at the office of the Association at least sixty (60) days prior to the first day of the annual meeting of the Association ."

The House will consist of fifty-four elected delegates. six ex-officio members, and two law student section delegates. The fifty-four elected delegates will serve staggered terms of three years . eighteen to be elected annually. In 1972. however. a full membersllip will be elected and the terms of office determined by lot.

A map outlining .the twenty-nine De legate Districts within the state. and the number of delegates to be e lected from each district. will be published in the next issue o f The Arkansas Lawyer.

By ear ly March each Association member wi ll receive a notice from the Secretary-Treasurer relative to any office open to nomination upon petition . the date of c losing of nominations, and the number of signatu res required to effect nomination . However. the elective provisions of the new constitution are already operative. and nominating petitions may be filed at any time. Actual balloting for the office of Delegate is required only if the number o f nominees exceeds the number of delegates to be elected from a particular district, so those persons interested in serving in the House would be well advised to file early and perhaps avoid the necessity for a contest by ballot.

A truly democratic Arkansas Bar Association can come into being only if the members of the Association manifest their support of this principle by electing their governing representatives. The time for action is now!

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The Barretts of Washington Street.

Mr. and M rs , Joe C. Barrett. The Barrel t's dauqhter Dorine is shown with her husband. Mr . J. C. Deacon.

Proceedings of The Forty Sixth Annual Meeting

JOE C. BARRETT Pres ident 1943-44

Arkansas Bar Association

FOREWORD To the Bar Association of Arkansas :

The stirring era in which we live challenges the intelligence and ingenuity of every thinking man and woman . The problems of a government of , by and for the governed have ever received thoughtfu l and earnest consideration by the organized bar . Now with democracy threatened by enemies from without and by conflicting views from within. we must be vigilant and thoughtful to a degree not heretofore required in this generation.

II is imperative that statesmanship prevail over personal desire. local interest and selfish purpose . if we are to demonstrate to ourselves and to the world that people can govern themselves. To attain this end our responsibility is limited only by our individual capacity. intellect and opportunity.

Patriotism of lawyers in time of national peril has ever been manifested by courage zeal and devotion in combat. but to those of us left in civilian life there is a more prosaic but none the less important duty to foster and maintain those basic principles forming the pattern of the way of life we now defend with arms.

To the accomplishment of this purpose with all that it implies. we dedicate our fortunes and our lives.

JOE C. BARRETT. President

September 1. 1943

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R ead with pride R ead with concern .

Canon 8 and a Rising Aspiration by John P Frank

Th e more ellicient causes of progress include a high standard of excellence, inculcated by t il e ab lest and best men, embodied in the laws . c ustoms and traditions of the nation, and enforced by public opinion . (C harles Darwin . The Descent of M an)

I. Introduc t ion The mid-twentieth cen tury has no Jeremy Ben tham o r

David Dudley Field . but it does have Albert Jenner o f Chicago and Joe Barrett of Jonesbo ro. Arkansas. We may begin with them . because they represent what the Code of Professiona l Responsibility's new Canon 81 is really all abouLZ

Joe Barrett Albert Jenner is remarkab le; since he comes from a great

firm in a great city. this is not inherent ly unlikely. But Joe Barrett comes from as country a countryside as there is. and somehow this makes his public service in international law a ll the more astonishing. Jonesbo ro. Ark ansas (popu lation 26.580). with a ll deference to that community. is no world center . Joe Barrett, now 72 years o ld, was graduated from the George Washington University Law School in 1924 and has prac ticed in Jonesboro ever since. The senior partner of a seven-man firm . he works in rea l estate. probate, trust, and taxation .

As his publi c service activi t ies for the improvement of the law, Mr. Barrett has been Chairman of the Section of International and Comparative Law of the American Bar Association . He worked on the Human Rights Conventions, the Convention on the Law of Outer Space, the Legal System for Governing and Exploitation of the Deep Seas. the question of Sovereign Immunity in the Courts of the Un ited States, the prob lem of service abroad and taking evidence in intern ationa l litigation. Other inte rnational law duties have made him a delegate to the Hague Conference on Private International Law and a Senior Adviso r o f the State Department on all matters in that field . In short. from his o ffice in Jonesboro, Arkansas. Mr. Barrett has reached to the bottom of the seas and to the outermost reaches o f space. But his activities have not always been so far from home: he has also helped to promo te a constitut iona l con vention fo r his ow n state .

And then we come to what is perhaps Mr. Barrett's most important work . He has been an active member of the Nationa l Con ference of Commissioners on Uniform State Laws. Undoubtedty, he is one of the litt le handful of prac· titioners most deeply involved in all Unifo rm Commercial Code problems: as a member of the Code's permanent editorial board . he has had a particu larly heavy duty in revising its troublesome Artic le 9 .

(Editor's Note: This IS the text o f Mr. John P. Fr i:J.nk 's '1ddress at the American Bar Association Code o f Professiona l Responsibility Symposium in 1969. We on ly ask that you read the lirst two sentences- you will never be able to stop there . Read. with pride. about Lawyer Joe Barrett of Jonesboro, Arkansas. Read, with concern. a lawyer's responsibilities under Canon 8 of the Code o f Pro fessional Responsibility. which has been adopted by the Arkansas Supreme Court. We are indebted to Fred B. Ro thman & Co . for permission to reprint this article from the January 1970 issue o f the Texas Law Review.)

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National Conference of Commissioners on Uniform State Laws session with Dean Robert R. Wright , joe C. Barrett and Jack C. Deacon. Mr. Barrett has been a Commissioner from Arkansas for 30 years, having received appointments from five governors , and is now a Ufe Member. Mr. Barrett served two years (1954-56) as President of the Nationa l Conference, and is the on ly Arkansan to be so honored. Mr. Barrett has served for 25 years as the Chairman of the Arkansas Commission on Uniform Laws.

Albert Jenner has been prac tic ing law for 39 years and is senior partner o f a firm of 66 lawyers in Chicago . There can be no meaningfu I desi gnation of anyone as the fo remost li tigation man in America- there is a sma ll upper perch on which more than one man can roost. But certain Iy any enumeration of the majo r litigati on lawyers in the United States wou ld inc lude Mr. Jenner. Yet he finds time to do other thing s. too. As a former President o f the American Col lege of Trial Lawyers, he has p arti cipated in preparing its man uals on preparati on and trial of crimina l cases and its materials for teaching advocacy in the sc hools. He was sen ior counse l fo r the Warren Commission: he is a member of the contemporary Com mi ssion on the Causes and Prevention of Vio lence: and. as his most time-consuming activit y. he was C hairman o f the American Bar Committee on the se lection of the federal judges from 1965 to 1969. A member o f the Committee on the Federal Rules of Civi l Procedure, whic h is deeply invo lved in a ll rules revisions of this decade, he has also been Chairman si nce 1965 o f the spec ial committee preparing Uniform Federal Rules o f

(John P. Fran k is a man of many accomp lishments- member o f the Lewis & Roca law firm . Phoen ix: author and edito r ("Cases and Materials on Consti tutional Law," Callaghan & Co.: "C ases on the Constitution." McGraw-Hili ; '·Mr. Justice Black." Alfred A. Knopp, Inc.: "Marble Pa lace, Th e Supreme Court in American Life," Alfred A. Knopf, . Inc.: " Lincoln as a Lawyer," University of Illino is Press: " Justice Daniel Dissenting ." Harvard University Press: " The Warren Oourt." The MacMillan Co.; " American Law." 'The Case of Radica l Reform.' The MacMillan Co.) : Associate Professor of Law (1946-54) at Indiana and Yale: director, American Judicature Society: active in ABA : B.A .. M .A .. LL.B., J.S.D.: member of Wisconsin, Arizona and D.C. Bars.)

Evidence. which have recen tly been distributed to the bar. A speaking duty goes with the evidence work: he has led discussions of the proposed rules at eight of the judicial circuit con ferences.

But this is by no means all of his public work. Since 1949. Mr. Jenner has been Chairman of the illinois Unifo rm State Laws Commission. and for the past two years he has been Chairman of the Executive Committee of the National Conference 01 Co mmissioners on Unifo rm State Laws. He has been involved In the Uniform Probate Code. the Uniform Antitrust Act. the Uniform Landlord and Tenant Act. and many others. He is a past-president of the American Judica ture Society. ac tive in the American Law Institute . active in the effor ts for constitutiona l reform in I ll inois. active in so many projects that the list for this purpose need be no longer. We may lei the description go with the adjective "ac tive ."

The lives and services of these men . and a good many others whose activities will be considered here. make a pathway to the new Canon 8. Mr. Barrett gives somethi ng like one-third of his professional time to legal public service. Mr. Jenner gives almost half of his time to his extracurricular activities. New Canon 8. boiled down a little. says '

1. The lawyer should propose and support legislation and programs to maintain and improve our lega l system. He should encourage Simplification of laws. repeal or amendment of ou tmoded laws. and revisions of substan ti ve or procedural law to promote Justice.

2. The lawyer should promote the ava ilab ility of co mpetent lawyers and not fence the bar to keep needed men out.

3. The lawyer inevitably wears two hats. sometimes representing a c lient and sometimes representing his own best ludgment. He may advance the view of a c lient whether he agrees with it or not. but when he espouses the public Interest. he must be loyal exclusively to II.

4. The lawyer has a duty. un less barred by con fidence. not merely to aVOid misdeeds himself but to reveal fraudulent. deceptive. or otherwise illegal conduct by a partiCipant In a proceeding .

5. The lawyer has duties to aid in the selection of competent Judges. to sustain them as they do their work . and to aVOid carping c riticism .

6. The lawyel should aid in establishing and enforcing standards of professional conduct adequate to protect the public .

7. The lawyer. if he ho ld s a public off ice. shou ld avo id conf licts of interest. a concept broadly considered .

8. The lawye r shou ld encourage and aid in making needed changes and improvements in our legal system.3

These apparently diverse ethical considerations are linked together by the title. " A lawyer shou ld assist in improving the legal system." and it is this ethical spirit. the heart o f Canon 8 . on which 1 concentrate these paragraphs. A po rtion o f the new Canon is either traditional or c lose to traditional- the general duties concerning qualification of Judges. honorable conduct. and so on. happily. have a long history. But the Canon breaks new ground when i t establishes as an actual ethical duty the responsibility to propose and support legislation and other programs both to improve the legal system as a who le and to improve legal procedures in particular. The draftsmen are so convinced o f the impor tance of this breakthrou gh to a new plateau of professional responsibility that they say it twice-the fir st paragraph opens the topic with the duty of the lawyer to improve the system. and the last paragraph c loses on the same note.

The new Canon does not spring fu ll-blown and fresh from the heads of the Committee that sponsored it. and it. of

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course. ref lects recognized and admired high ideals. But it is a1\ the more innovat ive because its su pport in the literature is thi n: Professor Robert E. Mathews in his pathbreaking ethics instructional work describes the difficulty in giving problems on public work where. "nary a committee. nor a court. nor even a canon. has ever trod ."4 Arthur T. Vanderbilt has discussed the lawyer's rela tionship o f service to c lients an d the pub li c.~ and Professo r Elliott Cheatham has written a little on the lawyer's role in the development of the law.1i There are materials on whether the lawyer can serve the cause o f law improvement at the same time that he serves the c lient.1

That is abou t all there is in the notes to the Canon itself . Professor John Su tton. the draftsman and reporter fo r the committee. has shared with me other sources on the same theme: but except fo r a little ta lk on the subject in Countryman and Ftnman 's Th e Lawyer in Modern Society.8 there is not much in the literature on the actual nature of a duty for law improvement.

Canon 8 . at least in the portion under discussion here. is thus a genuine breakthrough in the law. For the Canons are law. They will actua lly be adopted in many states. and they become part of the legal system of America . They range from prohi b ition of obvious c rimes, such as Canon 6 with its broad ethical considerations and its practical Rule 6-104(A) that "a lawye r sha ll not misappropriate the property of a c lient." to legal fence-mending . such as Canon 3 on the unauthorized practice of law. But in Canon 8 , we leave the world of rules against conduct malum in se, such as the prohi bition on stea ling, or malum prohibitum, such as the rules on w"o may perform a given service. Canon 8 postu lates as an ethical idea l a mand ate to the bar to use our skil ls in the socia l service of mankind by the everlasting improvemen t of the system wi th whiCh we work .

II. A Survey: Legal Improvement Ideals in Prac tice In this essay. I would like to explore the practica lities of

the duty that Canon 8 imposes. Assume that a scrupu lous and conscientious lawyer is planning his next month or his next year. Assume that he is the kind o f good human being as well as good lawyer who wants to meet hi s ethical ob ligations all the way. Precisely what is he to do? What is expected of him? He will nol need to spend much time on the admon itions against stealing or adver ti Sing . If he is my hypothetical good man. his moral fiber rejects the former . and his conditioning rejects the latter. But he will need to give thought to th is new duty. What does his pro fession really expect of him?

Since the underlying literature is thin , there is no way of knowing with prec ision what the Committee had in mind . But we are speaking o f a high ideal. and we may usefully consider what those lawyers actua lly do who clear ly are heavily mot ivated by it. Of cou rse there are lawyers who, for want of interest or for want of oppor tu ni ty, do not in fact contribute to the improvement of the lega l system at all: alas. there are doubtless those whose dead weight of inertia or even whose posi tive conduc t goes against improvement of the system, not for it.

But there are also those who tru ly serve. Fo r the purpose therefore of exploring not the bottom nor even an average . but of di scovering what the meaning o f this self-imposed duty is to those who have imposed it heavily upon themselves. 1 have sent to some of them a questionnaire on what they are doing . The composite of t~ir answers will se rve as a benc h mark measuring the highest ideal of the du ty to improve the system as reflected among the prac ticing bar at the moment that Canon 8 becomes officia l.

The sample is small for purposes of con venience. and un· dou btedly many good lawyers were omitted . Some lilty

Contin ued on p.ge 8

Continued fro m page 7

requests were sen t to a list put together from the roster o f the Counc il o f the Ameri can Law Ins tit ute, from suggestion s by the Insti tute of Judicial Administration and by correspondents around the coun try, from the federal committees on practice and procedure , and other sources. Thirty of my co rrespondents respo nded in full. The answers were given on the assurance of conf identiality concerning individual detai ls. but I may append the list of names o f those who responded .9

This was an inqui ry into law improvement defined as covering a ll forms of statute-sponsoring and ru lemaking o r su bstantive or procedural or legal systems improvement. It covers work with the American Law Institute : Un iform Law Commissioners: other law revision commissions: the tnstitute of Judi c ial Administration : the American Judicature Society. or anyth ing of the like It inc ludes publishing to advocate what the participant conceives to be legal improvements and case-handling in which substantial law improvement is a dominant goa l. as apart fr om mere ly ach ieving a particular resu lt in a particular case. It includes w o rk in the select ion o f judges. whic h is squ arely w ith in the scope o f the Canon. but excludes Bar Assoc iation work not directly connected to substantive or procedural improvemen t- the committee on the new mining code is in . but the co mmittee on the annual conven t ion or on professiona l economics is ou t. ABA Section work o f a substan tive sor t is in. but adult legal education is out. Each o f the parti ci pants was invited to make his own ground rules if these did not fit his part icular case .

A. Th e ParticIpants The method o f se lection o f the parti c ipan ts depended on

a high visibility: the d i ligent and most wort hwhile loca l figure probably wou ld not have been reached by this

OUR CONGRATULATIONS

to

doe e. ':Barrett

We are delighted and proud . to join in this SALUTE ..

to one 0/ lonesboro sown

BANK OF NETTLETON JONESBORO, ARKANSAS

8

inqui ry. and high visibi l ity in the fi e ld of public service is like ly to mean that the man has been at it for some time. This is c learl y true o f the thirty participants responding in thi s inqu iry. The average years o f pract ice were thirty-three. with ten years as the minimum and fifty -seven as the maximum. Eleven had degrees from Harvard . two each from George Washington . Columbia. and Yale. and other schoo ls had one graduate apiece Joe Barrell is not quite a un ique exception in terms of the size o f town represented . Fou r of the group are from Washington . 0 C .. three from Los Angeles and New Yo rk . two from Chicago . and one each from ot her c ities. of wh ic h Wewoka. Oklahoma (populat ion 5.954) . and Fayetteville. Arkansas ipopufation 29.724) are two of the sma llest.

Of our thirty. twe nty-seven are in private practice . One law professor. an assistant United States Attorney. and a lawyer in governmen t se rvi ce are In the ne t. The firms o f the private practitioners average forty-one members in size. ran ging from three to one hundred fifty members. Probab ly because so many were c hosen from rules committees. there is a preponderance of litigati on lawye rs in the group. Twen ty-two o f them spe nd as muc h as one-fourth o f their time in litigation : twelve give as much to corpo rate and commercia l law : and eight g ive a sim ilar amount of thei r time to p robate . The rest are scattered throughout the practice among government rela tions. copyright. public uti l ities law. insurance and banking. labor law . cr iminal law. maritime law . taxa tion. banking. and other activities.

In sho rt. the lawyers who responded to thi s inquiry and whose activ ities set a high no rm as exemplars of Canon 8 are private practitioners. in big to large cities. in big to very large law firm s. They are pri ncipalty in liti gation and corporate law. But there is a thorough-going smattering o f the o ther activ ities. o f the smaller cities. and of the sma ller firms. While the sc hoo l o f graduation in this sampling is

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B. The Canon 8 Man's Selection of Public Service Canon 8 represents a kind of pub lic and community ser

vice Ihrough law . It is a kind of service that those who drafted the Canon obvious ly applaud . but equa lly obviously. it is not the on ly kind of public service. and a reasonable and conscientious lawyer-citizen might perfectly we ll choose to put his primary energy somewhere else. Many do. The Canon and this inquiry do not even encompass all types of very genuine legal service. For example. as was noted above. bar activities and professional services apart from law improvement are excluded .

What then do these particular men do with their public service time? The inquiry investigates six categories of interests other than law improvement activities. Their interest in public service organ izations of a nonlegal sort such as museum boards. symphony associations, and sociafwelfare organizations were listed for inquiry. The extent of their activities in charities. in politica l parties. in legal organizations apart from the ir law improvement activities. in churches. in social and sporting clubs were all part of the inquiry. The participants were asked to classify themselves as very active. moderately active. or inactive in each of these fields.

The responses are classified in the table following : the " x" is put next to the labe l that most c learly describes a substantia l majority of the group. When the group is fairly equally divided. an "x " w ill be put in more than one category.

As measured in this sample. a lawyer who is active in law improvement is also active in other forms of community betterment and of social activity. Almost everyone is " very active" in at least some other activity. and everyone is at least

9

Distribution of Pa rticipating lawyers In Activities Apart From law Improvement

Public Service Organizati o ns Chariti es Legal Organizati on$, Local,

Regio na l, Nat io nal Po litica l Pa rti es Church Social and Sport ing Cl ubs

V"'Y Active

x

X

X

Moderately Active

x X

X X X X

Inactive

X X X

"moderate ly act ive" in two o r more of the ot her areas. In other words. a Canon 8 lawyer is not a man pursu ing on ly law improvement interests: he is. as wou ld be expected. pu lled by his interest. or his enthusiasm. or his sense of community duty into other di rections as well . The Canon 8 lawyer is likely to be a multipurpose fe llow .

C. The Law Improvement Activities We have here thirty men who have been active in law im

provement. What have they done? A profile is difficult to sketch because of the d iverse activities of these leaders in law improvement. But the work of the group can be defined by ;4reaS and thus suggest the work of individuals. Those respo l Iding. on the average , participated in at least three of these areas.

Uniform state laws have been a consuming interest of the lawyer active in law improvement. As President of the Un iform State Laws Commission, member of the Nat ional Conference of Commissioners or members on its Editorial Board. or as a member of the Executive Comm ittee of the Board of Di rectors of the Nationa l Conference of Commissioners. the leader in law improvement has drafted many uniform codes. Whether a member of the Editorial Board of

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the Uniform Commerc ial Code. the Review Committee for Art icle 9 of the UCC. o r a draftsman of the Uniform Consumer Credit Code. Uniform Community Property Act. or Unifo rm Eminent Domain Ac t. the typica l member of the group has played a decisive role in the growth of uniform state laws.

This group has a lso been deeply involved in procedural reform. By work ing on the deve lopment of Federa l Ru les of Appe llate Procedure: revis ions of local rules of a United States district court: discovery provisions of the Federa l Rules of Civi l Procedu re: revis ion. genera lly. of state and federal procedure: by sitting on the Advisory Committee on C ivi l Procedure o f the Judic ial Conference of the United States. or as Chai rman of an Advisory Committee on Civil Ru les of a sta te supreme cou rt. o r the ABA Special Comm ittee on the Federal Ru les of Civil Procedure or the Committee on Evidence. these lawyers have affected procedura l reform at many leve ls. They are also interested in substance. particularly as it re lates to procedure: one in part icu lar has been especial ly active in matters relat ing to auto accident law reform.

Perhaps as a result of his heavy professiona l invo lvemen t with litigation. the responding lawyer has been deep ly invo lved in improving the process of judicial se lection and administration. He has worked generally to relieve court congest ion. to improve judicia l selection . tenure. and compensation, and he has sponsored a federa l court cert if ication statu te for judicia l selection. More specifically he has been a member of the Judicia l Selection Committee of the ABA. the Standing Committee on the Federal Judiciary. and the ABA Council o f the Sect ion of Judicial Adm inistration. Director of a Seminar lor Appellate Judges. and Chairman of the ABA Committee on Federal Judicial Reform or Chairman of the ABA Judicial Se lection Committee.

As one interested in adjusting the lega l system to c hanging social rea lities, the leader in law improvement is active in deve lopi ng a means for br ing ing lega l services to the poor. He may be a member of the Special Committee of the ABA on Avai lability o f Legal Services. promote lawyer referra ls and group lega l services. work for the provision of legal services for the indigent in criminal and civi l matters. re form laws govern ing landlord-tenant relations. assure equa l oppo rtunity in housing, education. and emp loyment. act as President of !tIe National Legal Aid and Defender Association. or participate on the National Advisory Committee of the OEO Lega l Services Program.

At the state level. the practitioner is actively engaged in revising the state consti tu tion. aiding the Committee on Corporate Law of the State Bar Section of Corporate Bank and Business Law. pet it ioning the state court to adopt Canon 35. o r sponsoring the local Uniform Arbi tration Act and Uni form Limited Partnership Ac t.

These activities o f a typ ica l leade r in law improvement ref lect the high standards by which he abides. He also partic ipates in formally setti ng ethical standards fo r his en t ire profeSSion. As C hai rman of the AB A Professional Ethics Comm ittee. he undoubted ly influenced a ll the Canons, inc lud ing Canon 8 that states the stand ard o f wh ich he is a prime examp le. He mi ght have partici pated in the Special Committee o f the ABA on Eva luation o f Ethica l Standards. improving Congressiona l ethics, setting AB A standards for d iscip lin ing lawyers' mi sconduct. or as Chairman of the Committee that produced the Code of Professional Responslb tl lty.

Legal improvement is not only a national matter. Mr. Barrett's role In developing in ternational law has been mentioned Others have helped fo rmu late the radical new development o f recen t years in admiralty.

10

This leader in law improvement has been deeply Involved in wo rk with the American Law Inst itute. He may have served on the Committee on Conflict of Laws or Foreign Relations Law. or worked on the division of ju r isdiction between state and federal courts and public contracts reform. His ro le in this work has been decisive as PreSident. member of the Counc i l. or member of an advisory committee of the American Law Institute.

These have been areas of major concern for the practitioner unusually active in taw Improvement. However. the man whose professional behavior Canon 8 encourages has also been active in other areas. Whether on the Advisory Committee of the Amer ican Law Institute on PreArraignment Procedure. ABA Special Committee fo r Minimum Standards for the Administration o f Criminal Justice. ABA Sect ion on Criminal Law, or the National Commission on the Reform of Federal Criminal Laws, crim inal law improvement has been an act ive concern of this leader. Some of the group have written for law reviews and other publications: one he lped inspire the crea t ion of the Federa l Register,

Others have given time to issues on the front iers of the law such as Electoral College reform. legis lative reapportionment. the Civil Rights Commission. the revision of Bankruptcy Ru les. or a new patent code.

The list is obviously not all of the pub lic service lawyers of America. nor even a large part of them, bu t it is. at a minimum. a distinguished samp le.

D. What Difference Do They Make? Canon 8 ca lls on lawyers to help improve the legal

system. This clear ty contem ptates both (a) he tping. and (b) improving . That is to say, something more is expected than noble effort- if Canon 8 is significant, then there ought to be results. What happens as a consequence of all the activities just described?

The answer is that. while there are an infinite number of mountains left to be moved. concrete results are flowing from what these men do. The last decade has seen extensive ru le revisions in many fie lds, both national ly and in the states. These men have he lped make those revisions. Restatements are moving out with their developing body of the law. The Uniform Law Comm issioners have made repeated and substantia l proposa ls. The Commercial Code has become the law o f the Il'tnd There has been a revision of the standards of legal ethics. There is an infinitely broader distribution of legal services than ever before. Prog ress is being made in protection of consumers. tenants' righ ts. and equal opportuni ty generally. The standards of cr imina l justice have been ra ised. Progress is being made on judicial selection. tenure. and com pensation. More can reasonab ly be expected in a new criminal code. state constitutiona l revisions. congressional ethics reforms. and an international convent ion on recogn ition of divorce decrees.

These men are gelling results.

E. How Much Time Do These Men Give? Here we hit the rea lly important question: here is the

place in which. if Canon 8 is to have meaning. we begin to get a real measu re of that meaning. If the law is to be improved. i t is going to be improved by p lain hard work. work in creating. work in study. work in drafting, work in advocacy. work in overcoming the resistance to change . This. inescapab ly. means time. Canon 8 is essentia lly a call from the profession to g ive ti me, and un less the lawyer who in carrying out his Canon 8 du ties is willing to give of his time. he may as weI! not start.

How much time? Lawyers can commonly give to their professional activities. act ivities for gain and for public ser-

vice together. something between 1.500 and 2.000 hours a year . Every lawyer knows exceptions. but if a lawyer works fifty weeks at forty hours he will total 2.000 hours. and this is a normal top. The average for this group is about 1.750 hours a year. The draftsmen of the Canon have specIfied no particu lar amount of time to meet their demands: this is an assignment that each man will have to make to himself. But in making that self-assignment. each lawyer may be curious about what Ihe leaders do. The average number of hours given to law improvement for the past five years among the thirty is 350. The average percentage of total working time. rounded off. is twenty per cent.

The same thing can be calculated in do llar terms. Substantially all of the persons responding could sell as much of their time as they have to sell. If we assume. absolutely arbitrarily because no inquiry was made on this point. that the average charge per hour for the time of these persons is fifty dol lars. then the average dollar contribution in time of each IS 17.500 do llars. F. The Involvement of the Assoc iates

Canon 8 is not simply a vote of confidence in the public service leadership. It IS. instead. a mandate to all lawyers. Not everyone will be the chairman of a committee. the principal advocate before a legislature. the sponsor- there will also be the members of the committees. the students of particular narrow subjec ts. the draftsmen. the large number who partIcipate as best they can according to their abilities and time. Clearly if Canon 8 is to be meaningful. the law reform ac tivities are not merely for the distinguished : they are for every lawyer.

Hence. the persons responding were asked the extent to which they had observed law firms that used their associates to do substantial basic work in law reform projects. It is here that Canon 8 has its biggest job to do . Many of the responding leaders are functioning on their own . Many of them do not even know of offices in which associates are engaged In supporting work : for some . a desire to avoid interference with their own associates keeps them from asking for help in law improvement duties.

But while there is a sizeable minority of these isolated workers in the vineyard of law improvement . many others are working With their associates. or have observed such actIvities in other offices. Many firms encourage their younger members to serve on bar committees which deal with law Improvement : it must be so if Canon 8 is in fact to be a genec:al rule of conduct among the bar. Concrete illustrations were reported of firms using associates extensively. for such projects as housing law reforms or legislative reapportionment.

On balance. this is the precise point at which there is the greatest opportunity to give Canon 8 meaningful general application . Pretty clearly. the leaders in law improvement actiVities have frequently tended to shy away from sharing much of the activity with their associates. probably because 01 a desIre to aVOid unreasonable drains on firm time and energies. But if that service is to spread. it can most easily spread where it is already started . Under the impetus of the Canon . those already active in law improvement projec ts may be expec ted more deeply to involve those with whom they are practicing . One firm reports that its office has been heavily involved in defense of prisoners. indigent work in courts of review . local poverty programs. and law reform work across the board . This large firm . which keeps close statistics. has. apart from the reporting member. two other partners who are actively engaged in similar types of committee work . I t reports. on the basis of c lose ly-kept statistics. over 5.000 hours a year in defense of prisoners. and in both bar-oriented and other law reform prOJects. The do llar measure of such a contribution to public service is simply staggering .

11

G. What Should a Lawyer Do? By their efforts. those who responded to this inquiry have

earned the right to lell the rest of us what they think about the lawyer's duty to law reform . Each was asked to give his own thoughts on the new Canon. his own estimate of what the busy prac titioner should call upon himself to do in law improvement. how the duties shou Id be shared in a firm. how much time should be given . Here are some extracts from sample answers:

1. " I like (Canon 8). as I helped write II. All practitioners should devote some time to law improvement- some more than others. bul dependIng on ability. opportunity and experience and inclinat ion . Natura lly o lder lawyers can devote more time un less younger ones are encouraged and given opportunities."

2. " I think every prac ticing lawyer has a duty to make a gratuituous contribution of a fair portion of his time in the public interest. I do not limit this activity sole ly to improvement of the administration of Justice. I inc lude in it specific charitable. religious activities and the like designed to aid the economy and social prob lems o f a local community. All lawyers In my office from top to bottom are encouraged to do this. but they are permitted to se lect the activities that appeal to each of them . I encourage them to spend at least 10 per cent of their time in this kind of public service and have no objection to it running as high as 20 per cent. I find that age and experience is quite usefu I in activities dealing with improving the administration of justice simply because the younger men have not yet had opportunity to understand those prob lems and obtain a full grasp of them."

3. " In a large firm. where the interests of partners vary greatly. it is too much to expect each partner to devote a substantial amount of his time to law reform. It is. however . necessary for some of the partners to do so:'

4. "Improving the lega l system is a primary obligation of our profession . I think the new Code expresses our duty and our opportunity very well. Lawyers should start '1oung- when they have all that energy! Criticising proposed state and federal legislation for a Bar Association Committee is a good place to start. The good work is done by lawyers who are interested enough to give unsparingly of their leisure time- a sense of duty is not enough . If a lawyer really gets started down this road he will usually continue until he drops."

5. "The new Canon is an improvement in the sense that it is a statement of what a lawyer should do. rather than only what he should not do. Moreover. I think it states the right attitude- the lawyer shou Id interest himse lf in improving the legal system. It is not always easy 10 know how to do this. particu larly for younger lawyers. but they should at least be alert to take advantage of opportunities. And certainly it should be a responsibility of every lawyer. not just of some in a firm. or in a city.

" 1 would lind it hard. however. to say how much time one should spend this way. It doesn't come in even amounts per day. or per week . It may require much time for six months. and then very little. Probably it should depend on his temperament. his other outside (nonlegal) activi t ies. the kind of practice he has. and what he can afford in terms of income lost . In that sense. the lawyer should probably do more during his later years at the bar than at the outset."

6. " It does appear to me that a firm should be able to pool its effort in this regard. because the contribut ion generally means a deduction from chargeable working time and if the members of the firm wish to have some of them devote more time in compensation of the tack o f time devoted by another member. that seems entI re ly ap· propriate to me . It seems to me it is most d i fl icul t to fi x any

Continued o n page 12

Continued from page 11

kind of reasonable proportion of the lawyer's time. but I shou ld think an hour a week or so would be a minimum.

" 1 doubt that the quantity of duties should vary with age and experience. although as a practica l matter the ability to con tribute is certainly going to vary with age and experience. I feel the obligation is a fairly uniform one throughout the lawyer's active practice."

7. " When a particular lawyer- by taste . aptitude. and experience-is more particularly suited to active participation in given law improvement projects his partners shou ld back his efforts with understanding . consultation. associate assistance. and secretaria l- library resources. Act ive participation by the novice. the inept. or the self-aggrandizers does more harm than good and is to be discouraged."

8 . "A ll lawyers. busy or otherwise (but especially the busy ones). should respond to every opportunity that is presented . They should not limit themselves to mere invitations or accept membership on committees without working hard at the comm ittees' subject mailer. Lawyers shou ld be at pains to engage in public activities. Here I include legislat ive service. other than office holding and the like. but I have more in mind political. civic, charitab le. etc. activities that do not involve the holding of public office.

" The lawyer who engages in law reform and in various activities that tend to bring about law reform shou Id do so since rely. that is. not with the view in mind of expanding his law business or bringing about other personal gain or emolument. but with the single. all-consuming thought of contribu ting to the improvement of his profession and of the society we all think we are serving .

"I leel that this duty is clear ly to be expected of all lawyers in a firm . It is not enough if on ly some of the members and associates 01 a firm give their time and leave the major work or activity to one or two partners or one or two associates. In fact. I strongly be lieve that a firm must be at pains to see that all members and associates are aware of the ob ligations of the profession and individual lawyers in this connect ion . and that a record be kept of the extent to which firm members discharge their duties in this area . One o f the difficulties o f firm work in these areas is th at if one or two partners are highly motivated and devote a good deal of time to law reform there is a tendency on the part .of other partners and some associates to gOld-briCk and to rest on their oars."

(This lawyer believes that 10 pel c(:!n l should be the minimum time which a lawyer should give to this kind of activity. that the highly motivated lawyer may give as much as 35 to 40 per cent of his time. and that "the average lawyer who is consc ious of his privileges and ob ligations might devote somewhere in the neighborhood o f 20 per cent of his time.")

9 . I c lose by breaking my rule of anonymity. This statement of William Gossett. retiring President of the American Bar Association. will serve as a valedictory to the subject:

"Assuming that this question is limited to law improvement activities. the new Canon is admirable. I think. as a statement of ideals of the profeSSion and of individual lawyers. As a practical matter. however. most lawyers will contribute materially toward the law improvement objectives described in Canon 8 only by organizing or becoming associated with a group having common aims. The activities of most individu al lawyers in the area of law improvement will be motivated and governed by the interests o f some client. The busy practitioner should call upon himse lf to become engaged in some law improvemen t activity. either as a member of a group or individually. His responsibility cou ld be fulfilled through his firm. by financing the act ivit ies of some of his partners or associates in law im-

12

provement efforts. A reasonab le proportion of a lawyer's time to be devoted to correcting deficiencies in the legal system would. I think. be difficult to fix , alghough if I were required to state a figure it would be 5 per cent to 10 per cenl. as a minimum. The quanti ty of duties should vary with age and experience. and I should think that the older. more experienced lawyers would be more likely to become involved and better ab le to achieve resu Its that the younger members of the bar. excepting of course the underlying legal work, tha.t is. research, drafting of statutes, etc. As a general proposition . lawyers have responsibi lity for the decency of the law and to bring about its continuous reform . The vast majority of lawyers have not accepted and probably will not accept any such responsibility . either individually or as members of a group. unless the responsibility is deemed to be fulfilled by the payment of bar organization dues. Indeed. most lawyers acting individually could not be effective in bringing abou t law reform . They should. however, seek involvement through groups. The prinCipal need these days is in the criminal fie ld. where emphasis should be placed upon rehabilitation of offenders and speedy release of the innocent."

III. Conc lu s ion One of those reporting says. " There is nothing new in the

new Canon for me. I have fOllowed such princip les all of my professional life . If a lawyer does not follow such principles as a matter of cou rse without regard to such guidance. then the Canons will not have much effect upon him- except as a deterrent to engaging in improper conduc t. It is in the breach rather than the observance of Canons of Ethics that such Canons have had real importance."

Let me conclude by saying respectfully that I think this on ly partly so . Clearly those who responded to this inquiry . those who are now giving so liberally o f their time to the improvement of the law for the American people . did not need Canon 8 to put them on the job . The Canon is not a goad to them. but is rather modeled from them: and in this sense any of them cou ld respond that "there is noth ing new in the new Canon for me."

But what is new is that what has been regarded as exemplary now becomes. at least in a kind of a way. part of the positive or at least the written law. There will obv ious ly be no sanctions: there are no concomitan t disciplinary rules. But there is an expression of an ideal which may inspire others to greater effurt.

The new Canon does. in the spirit of Oarwin 's observation with which this article began. inculcate a standard of excellence into the laws. customs. and t raditions of the nation. as exemp lified by able and good men: and that , hopefully. the Canon will encourage greater efforts by codifying an ideal as a part of profeSSional opinion.

FOOTNOTES , ABA Code 01 ProfeSSional ResponSibility. Canon 8 1 ThiS art'cle IS limited almost enhrely to law .mprovement ac tlv.t.es 0 1 pract,clng

lawyers Clearty one reason why we have no F.eld among the pract'honers .s thaI loday most leadership and service. particu larly In po,nt 01 I,me. come from the law SChools My academiC colleagues In procedural work do lar more than I The meaning 01 Canon 8 lor the law schools WOuld require a separate art,cle

J Some dlSClpimary rules follOW after these ethical conSiderations They are prelly much lormer Canons I and 2 and do not warrant speCial comment They are. in eHec!. that a lawyer as a public oHlcer shO\J1d not Ime hiS pockets and that a lawyer m relahon to ludges should speak no laisehoodS See ABA Canons 01 Proiessionai EthiCS. Nos 1.2

I R Mathews. Problems lIluStralive 01 the Responslbilihes 01 Members 01 the Legal ProiesSlon 200 (rev ed t966)

~ Vanderblfl Report 0 / the Conference on Pro /esslonal ResponSIbIlity . '" Selected Read.ngs on ProieSSlonal ResponSibility 409 (t962); Vanderblfl . The FIve FunctIons o /l/1e Lawyer ServIce 10 Cllenls and Ihe PubliC. 40 A B A J 3t (t954)

• Cheatham. 1ne Lawyer's Role and Surroundings. 25 Rocky Mt L Rev 405 (1953) (s tresses the umque opportunity and obllgatoon 01 the lawyer to Improve law ad. mlnlSlratoon and e~erCIse mrruence on the e~ecutlve and legislative centers o( lawmaking powed See A A L S . Selected Readings on the Legal Profession 407-22 (1962) ThiS chapler contams a senes 01 short statements and articles authored by Arthur T VanderbIlt Woodrow Wilson. Elihu Rool. George Wickersham. Stanley Reed. Will,am 0 Douglas. Muroay Seasongood. and Harlan F Stone Each statement deals WIth the lawyer's respan.

Continued on page 36

Because relatively few individuals have met them or having met them failed to recognize the impact , few Lawyers and hardly any laymen relate International Law prob lems to Arkansas jurisprudence. Hopeful ly thi s writing will po int up some aspects and stimu late some interest.

Oversimplified , I nternational Law may be divided into two categories:

1. Public International Law dealing with the rules of condu ct governing the rela ti onship between one sovereign state and another, and

2. Private Internationa l Law dealing with rules governing the re lationship between c itizens o f one sove reign state with the citizen s of another.

While it is the second c lassificat ion that more frequently arises. both can have impact upon a mid-continent practitioner and businessman .

In addition , the first c lassificat ion presen ts opportunit ies for public service in aid ing the President and the United States Senate to se lect sound principles for our national pOSition which may affec t the foreign policy of the United States. Two pending examples may be noted .

1. Protection o f Cultural Property. There is already in draft form a multilateral c onvention on this subject which mayor may not be submitted to the Un ited States Senate for ratif ication at the request of the Department of State. This draft is now under study by the legal fraternity for its views on whether the President shou Id submit the draft to the Senate and if so, whether the Senate should ratify it. While two United States lawyers participated in preparation of the draft . the organized bar saw it only after the draft was comp leted and hence, too late to have any impact upon the language. It is the writer's view that the draft is vague and uncertain and that under one provision as many as three nations cou ld contend that the same item is a part of their cultural heritage. Further, if ratified the draft wou Id impose moral, if not legal. ob ligations upon the United States to set up administrative procedures with adequate fundi ng to fulfill our national ob ligations.

Shou ld this draft be submitted for ratification . the Senate would have only three options :

A . Accept as is, B. Reject in toto . OR C. Ratify with reservations.

If called upon to act , the Senate wi ll welcome the views of the organized bar.

2. Legal Regime for a'dministration of the Resources of the Sea Bed beyond the limits of national jurisdiction .

Practitioners' Stake in

International Law by Joe C Barrett

(Ed itor's Comment : As Chairman of the Arkansas Bar Association 's International Law Committee, Mr. Barrett will submit his Committee's Report to the Assoc iation's Executive Committee for action before the A.B.A . Meeting in New Orleans. February 1972. The report concerns the two international proposals referred to in this article, viz .. the UNESCO " Convention on the Means of Prohibiting and Preventing the Illi c it Import, Export and Transfer of Ownership of Cultural Property" and the draft " United Nations' Convention on the Internationa l Seabed Area." The A.B.A. House of Delegates is scheduled to consider these proposals, In the article. " Canon 8 and a Rising Aspiration ," published elsewhere in this issue. Mr. John P. Frank makes reference to Mr. Barrett 's contribut ions in the International Law field.)

Here the United States has tabled a working paper in the form of a draft multilateral convention. but on ly after the policy questions had been under stUdy for some five to six years. In the study process ou tstanding judges, legal scho lars and practitioners participated . Here the draft has not been frozen and the consensus of the o rganized bar can have great impact upon what may become the final draft.

Estab lishment of a workable legal regime can have profound effect upon United States foreign po licy and it is of sign if ican t importance to the petroleum industry, the hard mining industry. the fishing industry. the national defense, commercial navigation, marine communicati ons, protec tion of marine life and to ecology, The organized bar has a marvelous opportunity to partic ipate in giving of its collective ta lents to the preparation o f position papers to guide those who wi ll ultimately be spokesmen for this country at a diplomatic con ference where the problems will be d iscussed and hopefully reso lved . The lead time for doing this is rapidly approaching zero. but this is not the proper place or time for the writer to go into details. The real opportunity arises by reason

13

of the fact that statement of ou r national policy is not yet a " fait accompli ."

The Pr ivate Internationat Law area is of pract ica l importance to all lawyers. Practitioners may face problems having international aspects at any time and in any law office. In 1970 according to Chase Manhatten Bank , 70 billion United States dollars were in direct foreign investments. I have no figures on foreign securities he ld by United States cit izens, Foreign sa les by United States affiliates were estimated to be 70 to 75 billion dollars. The number of fo reign United States affi l iates were estimated to be 25,000 and the number owned and controlled by United States parent companies was 3.500 .

Last avai lable figures indicated some four and one-half million United States ci tizens live abroad more or less permanently. Some two million travel abroad annually. There are some three million registered aliens in the United States. Ail take their law problems with them , but not necessarily their law.

A substantial portion of the cotton , rice, soybeans and poultry produced in Arkansas goes to foreign markets. Inventories of Arkansas retailers contain large quantities of imported goods. Navigat ion on the Arkansas River provides water transportation to ocean seaports.

A few illustrations of Private International Law problems reaching state and federal cou rts follow :

1. An Oklahoma cou rt had jurisdict ion of a tort act ion brought there against an Oklahoma corporation even though the injury occurred in a Middle East country. Neither lit igant offered proof of the law of the situs, hence the case was decided under Oklahoma law. If law of the situs had been more favorable to one o f the liti gants than the law of the forum , professional liability of counse l might have been a nightmare.

2, Adoption of foreign born persons may present United States counsel with problems of seeing that nationality ties with. the country of birth are effec tively severed . Recently a naturalized United States c it izen who was subject to our Selective Service Act and served in Vietnam received notice to report for service in the French army, apparently because he was still a national o f France under its law.

3. The c lash between domicile of origin and domicile of c hoice was decided by the Supreme Court of Iowa (192 Iowa 78) . That court also dec ided a knotty prob lem of succession to pro-


The Executive Committee at its meeting of December 11, 1971 , adopted a resolution supporting the Arkansas Supreme Court's action in establishing a fu II time office of executive secretary to its Committee on Professional Conduct. The resolution in part states:

" That the Arkansas Bar Association fully supports the Arkansas Supreme Court in its determination concerning the establishment of a fu II-time office and staff to assist its Commi ttee on Professional Conduct and to increase the Supreme Court l icense fees to finance this highly desirable protection for the Bar and the public ."

Upon request of Prosecuting Attorney Jim Guy Tu cker, the Committee endorsed the concept of a Public Defender system for the Sixth Judicial Circuit (Perry & Pulaski Counties) . Endorsement by the Association is


perty and the effect thereon of the 1954 Treaty of Friendship with Greece (126 SW2d 342).

4. The courts of Pennsylvania, New Jersey and Florida had to face whether a Cuban policy ho lder was entitled to payment in United States dollars or Cuban pesos (203 At2d 505 and 232 At2d 863) .

5. The Federal Tort Claims Act was held applicab le to injuries suffered in the American Embassy at Bangkok (330 F2d 9) .

6 . A varie ty of unusual questions of Internationa l Law faced a New York cou rt. including : (1) Statutes of Limitations of New York and Belgium, (2) Abandonment of a painting by its owner, (3) Requisition in time of war,

EXECUTIVE COMMITTEE NOTES

by Robert D, Ross. Secretary-Treasurer

necessary before the Law Enforcement Assistance Agency will consider requests for funding a pilot Public Defender program.

The appointment by President Paul B. Young of Robert A . Leflar, Richard McCu lloch of Forrest City and Steven Reasoner of Jonesboro to three year terms on the Arkansas Law Review Board was confirmed by the Executive Committee. Dr. Leflar's appointment is a reappointment.

Chancellor J . H. Evans of Booneville was appointed by Pres ident Young to f i ll a vacancy on the Constitution and By-Laws Committee. This is the committee whose duty it is to see that the new Constitution and ByLaws of the Association are fu lIy implemented .

Forms for petiti on for use by candidates for the House of Delegates of the Arkansas Bar Association will be available at the offi ce of the Association .

The Committee directed that the petition requesting the Arkansas Supreme Court to adopt additional rules

(4) The Act o f State Doctrine. and (5) Treaty Obligations (267 NYS' 804).

7. Section 47 of the New York Deceden ts Estate Law was held not in con fli c t with a treaty between the United States and Switzer land even though the decedent was a Swiss domiciliary (267 NYS' 138).

8. A California court denied Soviet heirs rights to property of a Ca lifornia decedent for lack of a reciprocal right in property situated in the Soviet Union (44 Cal. Rep . 731).

9. A Canadian was convicted in Texas fo r conspiring in Canada to violate United States Law (375 F' 882) .

10. Recognition of a Mexican " quickie" divorce has been before New York courts and a Michigan court faced enforcement of a support order entered in Ontario.

14

of criminal procedure pertaining to the fair trial-free press be filed with the Court by the Association. The proposed new rules would not apply directly to news media people but would apply to the sources of news in particular, judges, lawyers, clerks, other court personnel and law enforcement people. These proposed rules are designed to meet Constitution requirements and to maintain a balance between First and Sixth Amendments.

The Association Membership has topped the 1500 mark which is a new all-time high. That figure represents an increase of 62 over the cou nt for the same date last year.

The Annual Audit Report of E. L. Cullum & Co. for the fiscal year 1970-71 was received and approved by the Committee. The audit showed an excess of receipts over disbursements of $6,489.06. After allowance for depreciation o f furniture and equipment and for 1969-70 expenses paid in the 1970-71 fiscal year, the increase in membership equity was $4 ,505 .02.

11. An Arkansas woman married to a Dutchman was denied a United States passport for voting in a Dutch election . A private bill in Congress corrected her prob lem. but several years later the involved provision of our Nationality Act was declared unconstitutional (387 U.S. 253) .

12. The will of an Arkansas domic iliary execu ted in Ca lifornia but affecting property in New South Wales was admitted to probate there on ly af· ter expert testimony that the will was admissab le to probate in Arkansas.

Much is taking place looking toward better International Judicial Cooperation and resolution of Conflicts of Laws problems. A summary of these activities would require separate treatment too long to incorporate here.

r

On June 15. 1969 lhe Supreme Cou rt of Arkansas adopted new ru les regulating the professional conduct of attorneys (published in full in the March 1970 issue of "The Arkansas Lawyer"). Later, former United States Supreme Court Justice, Tom C. Clark, in an address to the Arkansas Bar Association stated that Arkansas "has one of the finest structures in disciplinary enforcement of any state." and praised the stale for being one of "only three o r four states that have any effective administration of disciplinary procedures," but he criticized the legal profession fo r providing too little money to enforce "your excellent structure. the equal of which I do not know exists in any other state."

Following Justice Clark 's address, members of the Supreme Court and leaders of the Bar gave much thought to the matter of providing the committee with sufficient funds to effectively carry out its objectives. The committee's work was supported entirely by a $2.00 annua l license fee paid by all lawyers to the Clerk of the Su preme Court. Mr. Justice Clark offered to be of assistance in this undertaking and it is particularly fitting that we here acknow ledge the related public leg al service of an Arkansan by birth . To better understand the circumstan ces we now give you a thumbnail biographical of our benefactor~Mr. George A. Stinson, President of the National Steel Corporation . He was born in Camden , Arkansas where members of his family still live and left there to attend Northwestern University and Columbia University Law School, graduating in 1939.

After a period in the USAF, he practiced law as a partner in the New York law f irm of C leary, Gottlieb, Friendly and Hamilton un til 1961 . He took a year's leave in 1947-48 to work for Mr. Justice Tom C . C lark who was then Attorney General. He was ~cting

JURIS DICTUM by C.R , Hu ie

Executive Secretary. J udicial Department

Assistant Attormeney General for part of this period . He has been in the stee l industry since 1961 and has been president of National Stee l since 1963. He just co mpleted a term as Chairman of the American Iron and Steel Institute.

Mr. Stinson was interested by Mr. Justice Clark in the disciplinary en forcement project of the Arkansas Supreme Court. In turn , Mr. Stinson involved the Leon Falk Family Trust in the project. The Falk Trust has been very interested in the legal profession for many years and has previously made substantial grants to the American Law Institute. Mr. Leon Falk. Jr. is the family representative and Mr. Lewis A. Devin . Jr. serves as secretary

George A. Stinson

to Ihe Leon Falk Family Trust. Through the good offices of these

concerned individuals, the tru stees of the Leon Falk fam ily approved Mr. Stinson 's request for funds on behalf of the Arkansas Bar Foundation and granled $10,000.00 " seed money" for the purpose of assisting in the implementation of the recommended procedures for disciplinary enforcement in the Arkansas Bar. Mr. Stinson has stated that he con t inues to be deeply interested in the legal profession and will fo llow the progress o f the Arkansas project with great inlerest.

The Arkansas Ben ch and Bar are highly appreciative of the interest and efforts of these men-Mr. Justice Tom

15

C . Clark, Mr. Leon Falk , Jr. Mr. Lewis A. Devin , Jr., and Mr. George A . Stinson.

On November 15. 1971 by Per Currian order license fees for attorneys were increased from $2.00 to $17.00 per ca lendar year for the purpose of providing funds to support the establishment o f a full time office of Executive Secretary to the Committee on Professional Conduct and the rules of the Supreme Court regulating professiona l conduct of attorneys were amended as fo llows :

" PER CURtAM Sections I and III of the rules of the

Supreme Court committee on Professional Conduct are hereby amended 10 read as fo llows:

I Canons of ethics adopted . - Vio

lation disciplined. ~ The Court adopts the Code of Professional Rsponsibility of the American Bar Asoc iation as the standard of professional conduct of attorneys at law, and an attorney who violates any of such canons or who shall be guilty of any felony or infamous cri me, or improperly retaining his client's money, or of any deceit or misdemeanor in his professional capacity. o r shall be a habitual drunkard shall be dealt with as provided herein .

III Executive Secretary Authorized

-Salary' a nd Qu alifications. The committee shall have. and is hereby granted author ity to employ, an Executive Secretary who sha ll not be a member o f the Committee . Such Executive Secretary may be paid such reasonab le salary and expenses as may be deemed necessary and appropriate by the Committee payab le from funds co llec ted fo r use of thE! Committee under rules of the Court , and avai lab le for that purpose as herein provided . The salary and expense arrangement made by the Committee , I and subsequen t changes therein , shall t2,e su bject to the approval of the ~ourt.

The Executive Secretary sha ll not be a member o f, o r otherwise connected with the Committee, and shall have no vote on any matter presented


Joe Barrett comes from as country a countryside as there is, and somehow this makes his public service in inter-national law all the more astonishing.

-John P. Frank

JONESBORO,

ARKANSAS

is proud of

JOE BARRETT

ABSTRACTERS OF TlTLE

JONESBORO • LAKE CITY ARKANSAS


to the Committee for decision . The Executive Secretary shall be subject to replacement at the will of a majority of the Committee. Prior to employment as Executive Secretary, such a person must agree to devote his full time and effort to promptly and efficiently receive , investigate and process comp laints and carry out other duties assigned by the Committee,"

It is antici pated that the Supreme Court Committee on Professiona l Conduct, formerly known as the Bar Rules Committee. wi ll shortly after the first of the year emp loy a full time Executive Secretary wi th sufficient

staff and offi ce space to implement the enforcement of its disciplinary rules.

The lega l profession has been criti cized by many as being neg ligent in providing a system for self discipline. The estab li shment of the full time office with adequate staffing will. it is hoped, lay those criticisms to rest permanently.

Members of the committee charged with the enforcement of the disciplinary rules are: James Hale, West Memphis, Chairman; David Solomon, He lena : William M . Moorehead, Stuttgart: Mark Woolsey . Ozark : Don Smith . Pine Bluff ; James A. Ross, Monticello : and E. l. McHaney, Little Rock . •

BUSINESS DISTRICT

Money doesn't care where it's made. Or moved. Stephens, Incorporated. Little Rock Investment Bankers.

16

'1

NO-F AUL T INSU RANC E Richard M. Markus

(Mr. Markus, President o f the American Trial Lawyers Association.' ~as a featured speaker at th e 73rd Annual Meeting of the Arkansas Bar Assoclallon, June 2-5, 1971. The following ;s the transcript of his address.)

O ne might wonder whether the topic 10 which I address myself today, au tomobile insurance and particularly no -raul! insurance, is appropriate for an after-dinner presentation . I think in Ihal conl exl I should lell yo u Ihal my wife is nol present. She is at the ladies meeting because from her viewpoint this has become al our ho me an afterdinner, a during-din ner and a prior-IOdinner discussion subject. She is, therefore, quite content 10 be al the ladies meeting elsewhere. I think il is mosl appropriate that this subject is being considered by the Women's Bar Association here. II has been , in my iudgment , thE" Wompn 's Bar Ac;sociat ions w ho have usually been more attent ive to the progress of new lega l changes than the men's bar associations. Maybe we men have something to learn and to catch up with .

I would like to suggest thai an answer 10 Ihe question that I was asked in the hallway as I came downstairs earl ier today - do I favor or oppose no-fault insurance - is most difficult until I find Qut what the words mean . You see there are al present more than one hundred differenl proposals Ihal have been given the label " no-fault in surance." I t is a convenient Madison Avenue phrase that sell s but generall y co nfuses, and so when people ask me do I favor no-fault insuran ce, I am in a q uandry beca use I don', know quit e w hat it is t hey are ask ing me if I favor o r oppose.

I was most impressed wit h the recent Gallup poll in which they asked co unt ryw ide: Do yo u first know what no-fault insurance is? Second, if yo u think you know what it is, do yo u think you understand what it repre sents? Eighty-two per cent of the population said they did not know

Ed it or's Com ment : Associaion Presiden t Paul B.

Young has appo inted t he new Automobile Insurance Commillee to study and report on " no-fault " in surance and related measures as th ey app ly in Arkan sas . The Commillee is chaired by Mr. Bruce T. Bullion of lillie Rock.

wha t it was; they had never hea rd of it or did n01 understand what il was. Only eighteen per cent o f t he population even thought to themselves thai they had any rea l understandi ng of the sub ject .

I am afraid that is typical. The general population has almost no un derstanding of this subject and are being to ld, in large part by specia l interest groups through va rio us so urces, what il is and whether it is good for them o r bad for them . This is one o f the most unusual purported social improvements , in that it is nOI coming from Ihe bOllom, it is coming from the top. I am afraid Ihat if the ph rase " nofa ult " means what I think it means, then I have to say thai I am opposed to it. I have to say that it is a fraud . It is a hoax thai is being played upon some ralher unfortunate people who do not rea lly know what it is they are being asked to accept.

I hope in o ur brief opportunit y to be together today I will have a chan ce 10 review wit h you what it really is, as I understand it and what it is nOI , as I understand it , and perhaps we can then separat e reform from retreat, because all change is not necessarily progress, as we all know .

l et me start by saying what it is not , because it is not whal most peop le seem to think il is when they are, I regret to say, badly misinformed. First, it is not a method for lowering automobile insuran ce premiums . The honest proponent s o f these proposals do nol suggest that they are intended in any way 10 reduce insurance premiums . Indeed many o f them w ill can didly confess t hat I hey will probably increase th e premium . Jeff O'Connell, o ne of the oUlstanding spokesmen for t his, has variously suggested that i t would produce preCisely 23.7 per cent - o r is it 46 .2 per cent or is i t 37.9 per cent reduct io n - and on olher occasions has acknow ledged that il will probably produce an increase in premiums.

l et me suggest 10 yo u why il is not a program that is intended 10, or ha s anything to do , with premium levels at all. II is a proposal which would say that everyone will be compensated to

17

some exten t for certain losses that they have, and that people who are now compensated will not be fully compensated as they are now but will instead have some reduction of com pensation .

That is a lot of words, but it mea ns simply this : The drunk who run s into a tree will be entitled to some compen sation that he is nol now entit led to. In o rder to decide what effect that will have on the premiums, we have to know how many drunks there are thai run into trees . Believe it o r no t, we haven' t the slightest idea. Believe it or not , nobody knows how man y people are injured in automobile accidenls today. There are again very authoritative sta t isti cs released by the Federal Government and by o th er authorita tive so urces that say t here are exact ly 2.2 billion - or is il 3.7 million or is il 4.4 million , or variou s intermediary numbers?

Since we don't kn ow how man y people there are who are injured, it makes il very difficult for us 10 say how much il will COSI to pay those people. We do know how man y people are now tori victims - that is, who are injured and have a legal c laim which is asserted again st an insu ror. We have some reasonably good idea abo ut that because we have some historical data. There is no historical dala at all upon which 10 base the vario us proposals which say we will pay everybody somet hing.

As a result , tho ugh I co uld give yo u an excellent demonstration o f the fact that premiums will go up precisely fifth-five per cent - and I'm not kid ding; I ca n make thai suund very accurat e and very auth oritative - I must honestly say 10 yo u that I haven 't Ihe slight est idea what would happen wit h these various proposals, the more than one hundred proposal s, as far as premium s are concerned.

I kno w that the only effo rt thai has

Continued on p.ge 20

Theodore Roosevelt said: "Every man owes part of his time and money to the (profession) in which he is engaged."

0 DELTA, INC. D OF ARKANSAS

Manufacturers of • Casters. Utility Tool Boxes . Skids • Platform Trucks. Wheels . Dollies

103 N. Nesbitt Telephone p.o . Box 39 Area Code 501 Jonesboro. Ark . 72401

Like Mr. Barrett. We Serve ..

HOUSE AND GARDEN SOUTHGATE PLAZA

935·3711

Mrs. -Caleb Watson Jonesboro

Compliments of

ROBERT'S RICE MILLS, INC.

Weiner, Arkansas

Mr. Barrett gives something like one-third of

his professional time to public legal seroice.

-John P. Frank

We, his neighbors, are l proud to join in this

tribute to one who has given so much - - -

Joe C. Barrett

COOPER <$> CONSTRUCTION CO.

A.M. HERINGER JR. Lone Star Co. Inc. Jonesboro Petroleum Products Arkansas

Compliments of

CITIZENS FEDERAL SAVINGS

AND LOAN ASSOCIA nON

501 W. Washington

PAUL JOHNSON

GROVER FREEMAN

PHIL JONES

Jonesboro

" 1

1 1 19 F ails Jonesboro

Franchise Stran Steel Dealers

SINGER FURNITURE

MAIN STREET • TRUMANN. ARKANSAS 72472

Compliments Of

PARDEW REAL ESTATE Guy A . Pardew, Jr.

322 W. Monroe Jonesboro

Joe C. Barrett

Compliments of

Indian OIds-Cadillac Co .

116 E. Washington Jonesboro

We pay our respects to a very satisfactory friend

JOE C. BARRETT Shap H. Pryor -- T.H. Buck Pryor

GREA T SOUTHERN COACHES, INC.

Mr. Charles Seipel

900 Burke Jonesboro


give n us an y info rmatio n at all - the Massac hu se ll s e)( per iment - is one o f th e most mi sleading and confusing I have ever seen. I kno w , fo r e)(a mple, tha t the average mo to ri st in Massa4 chu sell s is now paying abo ut twentY4 five per cent more fo r au to mo bile in 4 surance than he did in the preceding year. I don 't blam e thi s o n the fac t that they have introduced a partial n04fault p ro posal but I recognize it as a fact tha t makes it more difficult 10 evaluat e the meaning o f th e data .

I am so rry to say th at the data that ha s been released by the perso nn el in charge o f in surance o peratio n in the Stale o f M assachu sell s is no t reliable. Thi s is all being kept very c lo sely guar4 ded fo r po lit ical reaso ns, I suspect, and so we have immense diffic ult y in evaluat ing the mean ing o f an y o f thi s. The raw data is being very c losely guarded , and we are not able to tell anyo ne in te lligenlly w hat i t mean s.

I repo rt again that it is no t the pur4 pose o r fu nctio n o f any o f these p roposa ls 10 reduce p remium s. That is no t what they are int ended fo r, and it may well be that is no t w hat the effect w ill be. Th ere is a co mm on mi sunder4 st anding th ai I think the people in th is roo m can immediate ly di spel - th e

amount that peo pl e pay to lawye rs will b e dec rease d an d, th e re fo re , prem ium s will be dec reased . BUI every lawyer in this room kn ows very well that the amoun t the injured vict im pa ys to his lawyer has no affect what 4 ever o n Ihe premium. If he gave all th e money to his law yer, il w o uld no t make the premium h igher o r lower; i f he gave none o f the money 10 hi s law ye r, it wo uld no t m ake th e premium higher o r lower.

The premium is determ ined by the amo unt of money the in suror must pay to th e vict im , no t how mu ch ~ f that th e victim c hooses 10 pay 10 h iS lawye r, o r the butc her o r the baker o r the candlest ick4maker. Those have no impact w hatever on prem ium levels. So I suggest, first , that " no faul t" is not a method of lowering prem iums.

Second, i t is generally no t a meth od fo r paying fo r auto mobile dam age. Thi s is to me the greates t misunder4 standing of all . I have ha d man y people come 10 me and say " How ca n yo u oppose n0 4faul t proposa ls? I had a case myself. I had my car sill ing o n the street and a fe llow w as speeding do wn th e road and he ran int o my car and damaged my ca r, and il took me a long tim e 10 get paid fo r the damage to my ca r, and I didn 't get full payment fo r the damage to my car."

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WEST PUBLISHING COMPANY Archie C. McLaren, Jr., 749 Snowden Circle, Memphis, T ennessee 38104,

Phone : 901/ 276- 0172

20

The thing he did not understan d is that almost all of Ihe s0 4ca lled no- fault proposal s make no c hange w hatever in the manner in w h ich p rope rty damage colli sio n c laim s will b e han 4 died . They do n' t cove r th e subject; they don 't d ea l w ith i t ; they ca re full y avo id it. They dea l o nly with perso nal injury claim s, no t propert y damage claim s.

To the e)( tenl that Ihey d o deal w ith proper ty damage claims, t hey would make a much w orse problem fo r thaI man than he has already. The very few of th ese proposal s that do in c lude pro p ert y damage c laim s wo uld produce the fo llow ing res ul ts . Thi s fellow had co lli sio n in suran ce, he w as enlil led 10 all bUI $100.00 deduclible fro m his own in suro r. Hi s o wn in suro r ho rsed h im aro un d a lo ng, long lime and fi nally gave him all bU I $100.00. He th en tried to reco ve r the remaining $100.00 from the in suro r fo r th e man who w as at fault. Eventuall y he got half o f Ihal.

U nder a no-fa ult approac h to au to mo bile damage, he w o uld st ill have his colli sio n cove rage, beca use that is what yo ur co llision coverage is. Co lli sio n coverage is no - fault coverage. II is payment wit ho u t regard to fault. And he w ould STili st rugg le with his own Insuro r fo r mo nth s trYing to get payment fo r th aI car, less the $100.00 deduclible. An d w hen he had fin ally gOllen that, Ihat w o uld be th e end o f the co nversatio n becau se he would have no righ t to recover th e $100.00 from th e fello w w ho ran int o him o r fro m t hat fe llow's in suror. That would be a no ·faull approach .

W het her yo u like it o r nOl , w het her it is good o r bad , there is a terribl e misunderstanding by th e public wh o thinks il wi ll be a w ay in whic h th ey ca n get their cars fi )(ed rapidl y o r more co mpletely o r o btain m ore complete paymen t fo r thei r ca rs.

Third , it is no t a meth od fo r ending arbitrary in surance po li cy ca ncel4 lat io ns. Many people w it h good reaso n are angry with in suro rs th at have can celled their policies fo r no se nsi ble reaso n al all , with no acc id ent e)(perence, wi th no hi story o f problem s, but perh ap s becau se that in suro r no longe r w ant s to w rit e in that li ll ie segment o f the town, o r becau se the agent fo r that in suro r has been di sco n 4 ti nued o r fo r reaso ns th at are to tall y une)(plainable by anybod y.

Th ose are real problem s, but th ey have abso lu te ly no th ing to do with the no · faull lec hnique. The no· faull sc heme is meaningless to them. Yo u co uld have remedies that would ha ve so met hing to do with th ose pro bl em s; yO U co u ld have them w ith the no- fau lt

proposal s or wit ho ut t he no- fault pro posal s.

I t is iust like saying we o ugh t to have strict er enfo rcement o f traff ic laws. Yo u ca n do that with no- fault proposal s o r without no-fault proposal s. They have nothing to do with each o ther. In the same way, th ere are complaint s abo ut the meth ods in w hi ch companies do their underwritin g: That they are unfair, that they don't char6e rat es that relat e to the indi vidual , that they have poor o r peculiar ra ting class ificati ons. So metim es those are very fair and very realistic compla int s.

I kn ow that there are various cat ego ries o f people who are considered bad ri sks by so me in suro rs. It might surprise yo u to kn ow t ha t law yers are co nsidered , by so me in suro rs, as bad ri sks. I suspect that , at least as o f thi s time, I am con sidered probabl y o ne o f the wo rst ri sks avai labl e. Again , that ha s abso lu te ly not hing to do wi th th e no-faul t concept. Yo u ca n have rules o r regulation s o r law s that wo uld improve that si tuati on with o r with out the no- faul t proposa ls.

Sn if we nnl permit ou:sclves to be deceived about w hat it is not, let's talk abo ut what it is. What is a no -fault proposal? I wo uld say that though there is tha t tremendous range o f different proposal s, there are usuall y two common features that w e find in alm ost all o f th em . Th ose two co mmon features are: first , compul so ry h ea l t h and acci d en t i n sura nce; second, reduced benefi ts to th e innocent. l et's talk abo ut those two separately. We can the n reac h an independent judgmen t abo ut wh ether these are good o r bad goal s, good o r bad proced ures.

Right now everyone in thi s room has no -faul t in surance. I do ubt there is a so ul here wh o doesn 't ha ve i t . Anybod y here have co lli sio n insurance on yo ur ca r? Th at is no- faul t in su rance. Anybody here have life insurance? That is no- fault in surance. Anybod y here have Blu e-Cro'i'i- Blu e Shield , M ed ical Mu tual. Mutual o f O maha? That is all no- fault insuran ce. Th is is no thing new o r c lever o f di ffe rent tha t some body brilliantl y dreamed up last wee k. Eve rybody here ha s such coverage . Eight - fi ve p e r ce nt of th e American mo to ri ng populat ion now has no- faul t prolect io n of so me fo rm fo r medica l expense o r wage losses that they eit her have as fringe benefit s from their employment o r from som e other so urces.

The first half o f these pro posal s sim ply say, " It is co mpul sory, yo u must buy thi s health and accident in surance wh eth er yo u already ha ve it or not and wh eth er yo u want it o r no !. Th is is an add itional health and acc ident po licy

that you must buy." Yo u can se t th e levels of suc h a health and acc id ent po licy an y wa y o ne c hooses. We kn ow becau se we deal with hea lth and acc ident policies, as lawyers, tha t yo u can wril e a po li cy that ha s ve ry high limits o r very low limit s, has man y exc lu sions o r very few exclusion s. Thi s is the reaso n - al least one o f t he reasonswhy th ere are so man y no- fault proposals; becau se yo u can change thi s health and acc id ent po li cy and package i t in all so rt s o f differen t forms. You Sl i ll have a healt h and acc ident policy. It is co mpul so ry.

W hat does thai mean ? If you are a fac tory w orker and yo u have fringe benefit s that have been hard -fough t, negotiat ed benefit s in place o f wage increases and they p rov ide that they w ill pa y yo ur medical bi ll s and a wage co ntinuati on fo r several month s if yo u are ill or injured , yo u would now be requ ired 10 buy add itional insu rance t hat pays fo r precisely t he sam e protec tion yo u alread y have.

I have so me doubt as to w het her thi s is a d esirable approac h, but I at least recogn ize tha t it is no t tot ally un pleasan t. It may no t be th e most im portan t o r appropria te meth od o f s(Jlving our soc ial probl em s, but at least it doesn 't hurt an ybod y except the fellow who has to pay th e premium.

l et's then turn to w hat 10 me is the more dras t Ie part o f these pro posal s, th e second half o f th e no- fault proposal s. Recogni zing that th e fi rst ha l f mea ns t hat more poeple are going to have to pay m ore fo r mo re coverage, something ha s to be done to reduce cos ts. One axiom in all o f

GREERS FERRY LAKE 5 Mile Shore Ii ne SPECTACULAR WATERFALLS

135'x175' Wooded Lots Underground Wiring

Recreation Areas Horseback Riding

Air Strip

th ose proposal s fo r in surance refo rm is that they dare no t substantiall y in crease premiums. That is a po litical axiom. No legislatio n whic h call s fo r a subst antial in crease in premiums is po liti cally acceptable. Th erefore, th e re has 10 be so me met ho d o f cull ing cos ts when yo u are now compelling people to bu y in surance that th ey did no t perhaps want o r need .

Wh at is I he mel hod of d o ing that ? Thi s, in virtuall y all of the pro posals, is the same. The fellow wh o n o w is en titled to payment , th e innocent vi c tim , will gel less . In so me proposai s, he will ge t substantially less. In so m e proposa ls, he will get som ething less. Bu t al way'i he w ill get less.

l et 's talk abo ut so me o f the stan dard plan s and you wil l see what im pa ct t hey w ould have. One of th e prominent proposal s is the on e that is prese ntl y b eing made b y Sen ato r Hart from the Stat e o f Mic higan in Co n gress . Hi s bill prov ides that th ere w i ll be no ca mpen sat ion beyond th e health and acc ident po licy that he requ ires unless the indiv idual h as sevent y per cent permanent parti al di sabili ty .

Those of yo u w ho are no t in th e workm en's co mpensation fi e ld may no t kn o w w hat that number mean s. l eI me give yo u so me examples, and I lake these b y referen ce to th e Am eri can M edical Associati on publi cati o n , A Guide To The Evaluatio n Of Perman ent Impairment Of The Extremities And The Bac k; and al so I take th em from th e bullet in o f th e Unit ed St ates

Continued on page 2 2

CHALETS FOR RENT

4 to 12 peop le 3 nights $65 to $90

Completely Furnished

HIGHWAY 92 BETWEEN DRASCO & THE NARROWS P. O. Box 107, Heber Springs, 372-3075

21


Burea u o f Labor Statistics desc ribing th e experience and agreemenrs of rhe Associallon of Indusl rial Accidenr_ Boards and Commissions.

Th e following Ihings are no r seventy per cent permanenr parrial di sabilir y: loss o f the arm al Ihe shoulder; loss o(

Ihe leg at rhe hip; loss of an eye; loral dedflle~~, (ur d yuung Inall , lu~s of bOlh hands. Th ese are no r sevenly per cent p ermanent partial di sabi lity.

People who suffer those co nditions o r anything less Ihan those co ndition s, under the Hart -Magnuso n Bill would be entitled 10 recover o nly from the insurance that Ihey have paid for, You kn ow, no thing co mes (or nothing. They pay I he premium and t hey will be enlitled to recove r bac k for Ihal premium their medICal expen se, pari of I heir wage loss, (not all of I heir wage loss ) and only pari of Ihelr wage loss for two and a half yea rs, nOI forever - period .

A more specific exam ple ~ a young man is In an aul a accident. He loses hi s right arm al I he sho ulder. He is a second year medICal 51 udenl . He plans 10 be a surgeo n. HIS medica l expense is $1,000.00. It I S nol r 00 expe n ~ i ve

the se days to amputate an arm. Regret lably, he doesn 'l gel Ihal $1,000.00

because hiS father had a heallh and accident po licy already, a Blue Cross po licy, Ihat had paid his medical ex pense - hi s doclo r btll and hiS hospital bill. So he gels no thing for medical expense beca use the Han Magnuson Bill says you gel it only if it's not already being paid from so me olher source. He gels nOlhing for tha t.

Wage loss? He doesn't have any wage loss . H e is d ~t UlJe n l. He won ' t have any wages in that two and a half yea r period t hat 's ahead , becau se during that two and a half year period he would still be a slUdent. So he gels nOlhing for wage loss. And he gels no thing fo r di smem berm ent, di sfigurement, di sability, loss o f future income beyond Ihal Iwo and a half years, loss of ea rning ca pacity, loss of ability 10 en Joy life, loss of ability 10 ca rryon hi s profession . He is totally uncompensated from any so urce whatsoever, nor -withstanding rhe fac t that all o f his I roubles came when a drunken driver gOIng eighty miles an ho ur struck him going d owntown, HOI Springs, Arkansas, c rashing a red ligh t.

To me, Ihal isn 'l rUSllce, and that is rhe wrong way In pay Ihe fellow w ho crashed the red light . He also, by the way, had had a broken leg III this acci dent. He had $750.00 medical bill s, and he will now gel those medical

22

bills paid because he was 100 cheap to buy an y Blue Cross coverage befo re. He didn 't ha ve any wage proteClion plan beca use he InSisted on gelli ng a wage increase IIlslead of a wage con l inuarion plan for disability. So he will gel paid . I do n'I obJec l 10 hi s gelling paid , bur r object to tha t innocen l viclim paying him. To me, that is w rong. Tha t IS Ihe Harl -Magnuson Bill.

There are less exlreme forms of Ih ls type o f remedy. There is the Massachusell s bill. Thi s is a proposal Ihal says "we recognize il is ieally unju st 10 take away the right s to paymenl for human losses so we will o nly take Ihose right s away from so me people. We will have a lillie injusrice instead of lOlal injustice." Under rhe Massach use ll s b i ll you are enlilled to recover general damages - that is, 10 any o f yo u who are not law ye rs here, paym ent for di sabi l ity, inability to ca rryon your no rmal activities, the pleasure of life, all o f the th ings Iha t are no! o UI -o f-pockel , !hal are not Ihe mere cosl of running th e human machine.

You are enlilled 10 recover Ihose if yo u have mel one of several condirions, Ihe mosl comm onl y desc ribed of which is the $500.00 medi ca l thresho ld . I f you have spenl $500.00 for a doclo r, then you are en!itled 10 rhose

payments . That means if you go to a doclor who c;ay5, " I don ' t IIk f' Ihe way you look following the aCCident. You'd beller go in the ho e;pi lal for four daye;." or "ix daye; or whatever the number of day .. necee;e;ary 10 get a $500.00 doc tor bill in your community, then you are entit led to general damages . But if you have a doclor who .. ays , " You " tay home for three monlhe; and don 't go 10 Ihe hospital," you are not entitled to genera l damage.:; .

The co ncept t hat I he payment of damages will depend upon the whim of I he physician in t he c hoice of medical treatment - and he may well have good rea son for eit her choiceseems to me to be a sill y method of deciding whether or not people have gone thro ugh substantial problems.

An attempt has obviously been made to decide w h ICh are .,erious and which are not serious cac;es; and I c redit the effort but not the resull. Beca use the res ult IS thaI there are a number of se riou s cases where there is no opportunit y 10 obta in full compensation and there are some rather triv ial cases in which there ie; an opportunity 10 obtain full compensation.

Really, Ihe ultimate question is Ihis: do you want 10 take money from some innucent victim ... - I\\a s~achu sell:. has

decided not 10 ,ake it from all, just lake it from some innocent viciun .. -in order 10 pay the guillY? I have to say thai philosophically Ihis bother~ me. I Don 'l think it 1<; right .

If I am saying that the no·fau1t approach doesn't really make good sense, then what sho uld be done, if anything? Should we jusl sit back and say everYl hing is dreamy? Ce rtainly, my associat ion has never I aken I hal position Indeed , for a good IwenlY years, we have been pressing for some insurance reforms that we thi nk are esse nt ial. And do you know who has oppoe;ed them? The insurance co m panies . The sa me in su ran ce co m paniee; who are now saying they see profil bonanza in the no-fault plan . Don'l kid yo ursel f; that'~ where the $10 million public relations campa ign is commg from, principall y the old lin e stock comran ies who have been unable to compete with Ihe direct underwriters and who see that t hey ca n make a much bigger profit by se ll ing health and accident in suran ce than they can b y se lling casually in suran ce. II is just that simple, and they are right . They wi ll make a muc h bigger profit. I have no que .. lion about it.

W ha t can be done? First, let's realistically do something about reducing costs. I am going to suggest something

that isn 't very clever, but it is probably the most obvious method of reducing costs. You reduce costs by red uc ing losses. That is I he most obvious, I he most human e, the mosl reasonable mel hod of reducing cost s.

How do you rec uce losses? First , yo u reduce the frequency o f accidents . Your slate can and mu st have se n sible regulations thai will keep drunken drivers off the roadway. There has been so m e movement in a number of states toward improving Ihls sit uallon . There musl b e reaso nabl e regulat ions of drivers' lic en ses so I hal they are not simply a li cense to kiJl, but a recognition of Some ability to operate a motor ve hic le . So if yo u reJucl::' the frequency of accidents yo u have done a great deal.

Second, we can reduce t he damage Ihal occurs in Ihe accident. This raises perhaps o ne of 1 he most st art ling quest ions of all. If 1 were 10 ask you ' what part of the automobile insurance premium do you think ha s to do with persona l injury in view of these staggering big judgments that you read about occasionally in newspapers? What part of the total premium ha s to do with that ? What part ha3 10 do with automobile .. ?

Conttnued on page 24

THE CRAIGHEAD COUNTY BAR ASSOCIATION

is proud to join with the

ARKANSAS BAR ASSOCIATION

to honor one of its members-the internationally-known

"country" lawyer

HON. JOE C. BARRETT

Jonesboro, Arkansas

23

Continued fr o m page 23

The an sw er nationall y is tha t two third s of th e premium goes for shee t metal and gla ss, and one -third o f the premium goe s fo r fl es h and bloo d . On e might say that if w e wan t to reduce premium s, the sen sible w ay to start would be b y attac king the bigger piec e of th e pie in stead of the littler piece of t he pic. At prese nt the average 1971 automobile in a five mile an ho ur impact - [hal is the speed I walk - again sl a so lid barrier, sustain s $320.00 damage. If the vehicle c o uld be manufac t ured so it co uld sustain a five mil e an hour impact , w e would save m o re than a billio n dollars a year. Vehicles can and should be manufactured so they c an sustain v irtually no damage whatever in a len mile an hour impa c t , if nol more.

legislation is necessary to compel the manufa c turers nol to make t infoil autom o biles . Unlil they d o, your in suran ce premium s are going to be staggering, becau se that is where mo st o f I he m o ney is going. I can ass ure you - and at least one o f the major in surors assures you - that if you require motor vehi c les to su stain a fi ve mile an ho ur impa c t , yo u will see at least a twenl y per cent reduct io n in yo ur premium s immediately. That is where your money is going.

I might say that thi s approac h to reducing premium s is no t clever, no t new, n o t pro fo und , but i t is working. About a week ago la st Friday th e Wall Street Jo urnal reported what has been fairly clear to th ose o f us wh o ha ve been watching thi s more c losely.

liability in surance companies are making m o ney. lot s of money. last year was th e largest pro fit year in the hi story o f State Farm . N ow man y in surors are redUCing th e ir premium s voluntarily. Seven per cent is the es ti mat e nationally fo r personal injury lia bility, five per cent for pro perty damage, becau se the se approac hes thai wp are talking about are working even though they are being und ertaken very slowly. Even th o ugh w e are not making any truly conseientiou s effort to reduce th e frequ ency and severity of losses, w e are d o ing so ; some of the regulation s of the Depart ment of Tran sp o rtation over vehicle design some of the in c reased al1enti o n at stat e level s to operation of vehicles have been slo wly beginning 10 fee l their impac t.

What e lse should we do? W e should , in my judgment , do something to reduce th e delay that occ ur s in the settlem ent of cases. I mu st [ell yo u that there is not the kind o f de lay that tho~f' proponent s would like to claim . Almo~1 ilily per cent of all p ersonal in -

jury Clalnl S arising ou t of aut o mo bil e acc id en ts are s€ lli ed in I h irty da ys, stati sti call y. Sure, the more se ri o us cases take a lot lo nger , and they should take a lot lo nge r.

If a c lien t com es to me hav ing su ffe red a ve ry se ri o us injury and says, " I w ant to se tt le today," I tell him , "You are foo li sh . Yo u can se ttl e today if yo u want to , but you do n 't eve n kn ow what I he impac t o n yo ur life is go ing to be until several mo nth s have gone by."

Th ere ha s been d ela y. So me o f that dela y is necessary and desirable; som e o f it is no t. Th ere are met hod s which can reduce that dela y and I suggest we con sider thi s legi slat ive ly. I suggest thaI int e rest should run on the spec ial damage part o f the loss, the liabi lit y c laim , from th e tim e tha t it is in curred . Thi s will encourage advan ce payment s for special damages, which should be en co uraged , bec au se then the econo mi c loss will be c overed prompt ly.

I suggest al so tha t t here should be greater equities. One o f th e com plaint s of th e no- fault ers is that th ere are innocent vic t im s who are not now recei v ing compensat io n ; and I am ashamed [0 say th ey are ri gh l. There are innoce nt v ic t im s wh o are not rece ivin g paymen t, and I hey o ugh t to rece ive paym en t: Peo ple wh o are barred by soverign immunit y (the theo ry tha t th e governm ent o w es no resrw!l sibilit y to it s own c itizens) o r b y int erfamilial immunit y (the theory that a famil y o wes no respo nsibili ty to it s own loved o nps) o r th e gu es t st atutes whi ch say that th e driver of an aut o mobile owes no res po nsibili ty to the people that he likes b es t (hi s o wn guests, hi s friend s, hi s famil y ). Th ese, to m e, are sill y rules, and they are preventing so me innoce nt v ict im s fro m o b taining compen satio n . Th ey sho uld go .

Finally, I suggest that th e pro blem s o f cance lla t io n and und erwr i ting can be legislati vel y handled and are be ing leg isla t ive ly handlprl . My statp, Ohio , ha s passed law s affecting th e ab i li ty to cancel. Iowa ha s pa ssed a law affec t +

ing the abilit y to can cel arbitrarily. These things are d es irabl e but have no thing to do with no -faull. I mu st say that in approa ching thi s question , w e as lawyers have a particularly diffic ult pr o blem . There is an aut o ma t ic respon se eve ry tim e w e speak . It is not an unint end ed response; it ha !! been planl ed .

The prin c ipal pr o p o nent s, th e Americ an In suran ce Assoc iation , who represent the old lin e stoc k co m panies, have put in every single press relea se (and they have fl oo ded the newspape r s with t he se re leases ) : " D o n 't li sten to th e lawyers, they are

24

o nl y speaking in the ir ow n 'ielfin terest. It is o nl y the ir poc ket boo ks tha t they are te lling yo u abo u t."

lhey kn o w ve ry w e ll th at the la wyers are the o nl y reall y in formed group w ho can po int o u t wha t is reall y fraud i n some o f these pro posal s. Th ey have, I am afraid , poiso ned th e mind s o f man y, and our v iew!! will not be easil y heard. That d oesn ' t mean they sho uldn 't be spo ken. I feel Ihal I do ha ve a severe bia s. I ha ve a bia s becau se m y life has bee n spen t in represe nting innocent v ic tim s to be so ld do wn the river - th e past vic t im s or the fUlUre v ic tim s. Fran k ly, I do n ' t care wh el her it he lps my pro fe ss io n o r hur ls my pr o fessio n ; I do care tha t the innocen t v ictim s no t be malign ed .

It is so mel hing like a new spaper man who te ll s people tha t they sho uld ass ist him in hi s go al to preserve fr eed o m o f th e press. Peo ple mighl say, "We ll , wait a minu te, you have a spec ial int e res t in fr eed o m of th e press. W e are no t go ing to li slen to yo u te ll u s abo ut freedom o f th e press . W e o nl y want to li sten to adverti sers te ll u s abou t fr eed o m of I he press."

It seem s to me that th e same inco n grui ty exists here. Certainl y newspapers have a financ ial in teres t in freedo m of the press; and certainl y at least some law ye rs have a finan cial in teres t in the mann er in w hic h litigation is hand led , o r th e manner in whi ch c laim s are paid , o r the mann er in whi ch o ur entire legal system fun ctio n s. That d oesn 't make I he new spapermen right or w rong. That does n ' t make th e law yers right o r wro ng. Th ese iss ues ha ve to be dec ided squarely o n their meri ts, and it is so m etim es hard fo r us to address our se lves to merit s wh en label s are so mu ch mo re appealing.

So I suggest 10 you that if yo u agree wi th an y of th e se ntim ent s that I have expressed , yo u will be suppo rt ing an extremely unpo pular cau se, that o f perso nal respo n sibilit y. That is an un po pular cau se now , let 's recognize i l. Yo u w i ll be suppo rting an extrem ely unpopular c lient , th e innocen t perso n. He is n o t a po pular perso n now . N o o ne seem s to care abou t him any more at all. So if yo u are willing 10 acl , as I wa s to ld in law sc hoo l thai I was supposed to do , to advocat e unpopu lar cau ses and represe nt unpo pular c li en ts, then I suggest yo u should be speaking o ut fo r th e innocent vi c tim and perso nal respo nsibili ly. I suggest t ha t you ec ho and re -ec ho the th esis - d o n 't gi ve your right up to full payment so le ly to enrich so m e in suror that is unabl e to compete adequat e ly under th e prese nt sys tem .•

The highest reward that can come to a lawyer is the esteem of his professional brethern. That esteem is won in unique conditions and proceeds from an impartial judgement of professional rivals. It cannot be purchased. It cannot be artificially c reated. It cannot be gained by artifice or contrivances to attract public attention. It is not measured by pecuniary gains. It is an esteem commanded solely by integrity of character and by brains and skill in the honorable performance of professional duty.

- Charles Evans Hughes

Joe C. Barrett

Esteemed MemlJer- Arironsos Bor Associo/ion

25

HEADLINERS • • • • • • • •

19TH MIDYEAR MEETING AND JAN. 20,21 1972 - ARLINGTON

CHIEF JUSTICE JACK G . DAY-Courl of Appeals (8th Distr ict) 01 Ohio . Pro fessor. Trial Lawyer. Labor Arbitrator. Author . Judge. et ai - a li in one man . Vice.Chalrman and Member of Council . ABA Section of Crlmmal Law : Chairman. Constitutional Rights Committee of ABA Sec tion of Crlmmal Law . President. National Association of Defense Lawyers cn Criminal Cases. 1966-68 (Secretary. 1961-65 : President-Elect. 1965). Forme r Chairman. Ohio Advisory Committee to US Civil Rights Commission. Served under Presidential apPointment as Vice Chairman . National Wage Stabilization Board in 1946. Associate Professor of Political SCience. Western Reserve University. 1946-49: Lecturer. Case Western Reserve Law School. 1967·70. Co--edltor: Labor Relat ions and the Law ; Author of many law review articles. to include- Mental Suffering as an Element of Damages i n Defamation Cases; Som e Historica l Aspect s and Rece nt Deve lopm ent s in the Exclusionary Rule of M app v. Ohio ; and Prob lems of Trial Prac tice in l oyalty and Security Cases. Judge Day was prevented by an eye injury from appeanng as the Dinner Speaker for Standards Workshop II. HIs Interest In the Arkansas program red to his current commiltment as the Speaker lor the Friday JOint lun c heon seSSIOn 01 the 191h Mid-Year Meeting and Standards Workshop 111. Judge Day and his 10p1 C. " The Ethics of Criminal Justice ."' sound most in· tngulng- h ls address should prove of Interest to all attendees.

GOVERNOR DALE BUMPERS will address the 10lnt Dinner Session on Thursday evening. January 20th HIs topic will concern " The New Look In Arkansas Justice ," The Arkansas Workshops on the Standards for the Administration of Cnmlnal Justice have been sponsored by the Arkansas Supreme Court with Ihe Arkansas JudiCial Council: Arkansas Prosecuting Attorneys ' Association : Amencan Bar Associa tion : Arkansas CommisSion on Crime and Law Enforcement: and Arkansas Bar Association . It IS a flltlng c limax to these Workshops for Arkansas' Chlel Executive to review the work accomplished and to help point the way for further programs in thiS vital area o f the Law Accordingly . the ad· dress 01 Governor Bumpers will concern all attendees at Standards Workshop III and the 19th Mld·Year Meeting .

MR . JUSTICE TOM C . CLARK . II IS not possible here to recount the honors and experiences of thiS great American . He was named Attorney General of the Unlled States by President Truman in June 1945: he was nominated Associate Justice 01 the Supreme Court of the United States by PreSident Truman on August 2.1949: and he served on the Supreme Court until hiS retirement on June 12. 1967 01 particular Interest- he chaired the ABA Specia l Committee on Evaluation of Disciplinary Enforcement. which published In June 1970 the soca lled C lark Report on Problems and Recommendations in Disciplinary Enforcement; he is Chairman of the ABA Committee to Implement the Standards for the Administration of Criminal Justice. Mr. Justice Clark's address. " Disciplinary En- j forcementj-a comp liment and a Challenge." delivered at the 72d Annual Meeting • of the Arkansas Bar Association , is published in the September 1970 issue of The I Arkansas Lawyer (pages 84-87) and is a " must" on the Best Reading List for the I

Bench and the Bar. In view of the important deve lopmenls in Arkansas in the field of Disciplinary Enforcement and in the revision study of the Arkansas Criminal Code and Procedures-areas of tremendous in terest to a ll members o f the Arkansas Bar- Mr. Justice Clark is the perfect keynoter to address the opening joint lun cheon o f the 19th Mid-Year Meeting and S tandards Workshop III .

26

ST ANDARDS WORKSHOP III HOTEL-HOT SPRINGS - ARK.

27

(Edilor's nole: II is parlicularly fitting that we publish Mr. Rhyne's address in this issue of The Arkansas Lawyer, honoring Chairman Joe C. Barrett of our International Law Committee. Mr. Rhyne is a Past President of the American Bar Association and Faun· der of Law Day, U.S.A. More than 4,000 leading lawyers and judges from 114 nations worked intensively at the Belgrade Wor ld Conference on World Peace Through Law at Belgrade. Yugoslavia, July 20-25, 1971, discussing major current law needs domestic and international - of the wor ld . Mr. Rhyne addressed the Inaugural Session of the Belgrade Conference. The Arkansas Lawyer published in the March 1970 issue Mr . Rhyne's address to the Fourth World Confterence on World Peace Through Lawai Bangkok, Thailand on September 8, 1969, His theme was " The World Peace Through Law Plan ." By reading both articles, one can appreciate the progress of the last two years in this field .J

The status and function of law in the world is a matter that affects every human being . This is true whether one considers domestic or international law. In our day the l ives 01 all of us are so inextricab ly intertwined that events anywhere affect everyone everywhere. A major breakdown in the rule of law. or a major strengthening of the rule of law, can have a widespread impact.

We who are gathered here are the largest internationa l assemb ly of law leaders in the history of the world .

Co llective ly we therefore have the greatest responsibility of any international group ever to meet-for the status and function of law in the world .

At the outset . I predice that the era we are now entering w ill be known as the " golden era of humankind ." This prediction is based upon the enormous turn to the law which I now report to you and to the peoples of the world .

The Law Reform Tide The greatest discernib le tide which

exists in human affairs today is a turn to the law. Law to reform ancient legislation or law to cover new needs of humankind .

When one examines the current and proposed law of the wor ld- domestic or internationa l- this law tide stands out loud and c lear.

Nation after nation is strengthening and updating its laws : nation after nation is reforming its judiciary in response to the ever stronger desire of the people for better and more equal justice. Daniel Webster's famous comment that " justice is the greatest interest of man on earth" is a true reflection of the mood of the people worldwide .

From the great issues of war and peace to other burgeoning international matters. to social and economic problems that exist in each nation it is being proposed that the agreements o r solutions of each be embodied in laws. statutes. treaties and conventions to give them effect and permanence.

The Parliament. the Congress. o r the legislature of nearly every nation has a vast law reform program on its agenda.

More international law has come into existence in the past 25 years than in all the history of man . While the UN is not a legislative body. and there is no world legislature. there are some 200 UN and regional international agencies whose rules or actions can result in law. UN-approved treaties and conventions become law only when accepted by nations. The world is becoming a vast cooperative society. Due to ever accelerat ing trade by multi-nation enterprises, ever increasing travel. and ever increasing contracts between individuals and nations. transnational law is of necessity growing in acceptance, in coverage and thus in importance and effectiveness.

Evidence of the TUrn To International Law

recently comp leted a book in which I set forth the existing international law. I also described both private and public agencies which are working to expand that law. This is a thrilling picture because it proves

28

ove rwhelmingly the rap id growth of law, the turn to the law o f which I speak.

When the governments of the World. prodded by the fears of their peop le. agreed to prohibit weapons of war in outer space they embodied their understandings in a law convention . A treaty dedicates Antarctica to peacefu l uses thereby making the agreement of participating nations to bar military uses into permanent international law. The agreement upon a no-war weapon use of the Seabed, likewise is given permanence and effectiveness by being cast in the form of an international law Convention . Having thus by giant steps completely outlawed mi litary use of space , Antarct ica and the seabed , the nations of the world are moving painfully, and slowly, and with seemingly minute baby steps to outlaw military uses of the Earth 's surface. Witness the Stra· tegic Arms Limitation Talks (SALT) where Atomic Test Ban and nonproliferation of Atomic arms agreements were written into law Conventions but these have been followed by slow progress in other areas. Areas however where it can be expected that agreements will be encased in law treaties to give them power, effectiveness and permanence.

My point is that it is to the law that nations turn- are expected by the world's peoples to turn- to give effectiveness and permanence to great agreements. And illustrations of this turn to the law in the world community are not confined to arms limitations. In the vast commercial field, the social, trade and economic areas, li terally hundreds of treaties are being updated. or written to cover new areas. as the world reorganizes itself out of sheer necessity, to accommodate to the realities of today. Realities which inc lu de a growing common life style throughout the wor ld which generates common wants and a desire for common solutions.

Evidence of a TUrn to The Law for Domestic Reform

The World Peace Through Law Cen ter wi ll publish before this year's end a survey entit led THE LAWS OF NATIONS. It will cover Ihe laws of 130 nations. This volume will update our previous publication on laws of na-

Hons and courts of nations. The material on each nation 's judiciary will be published separately in a volume entitled COURTS OF NATIONS.

Our latest survey of the laws of nations is irrefutable evidence of the worldwide turn to the law to so lve man 's social. economic and other problems. This survey also proves that throughout the world nations are modernizing their court system~ .

While each nation surveyed has its own . sometimes unique problems. my chief conclusion is that the major thrust of this world-wide law reform movement is to increase the status. the well being. and the freedoms of the individual human being . These recent legislative measures provide more human liberty. more social. and more economic progress. They inc lude provisions to abolish racial, sex and other discriminations. They cover measures to eliminate want and disease. They also provide a whole rash of environment anti-pollution laws to improve liveability of communities, nations and the World ,

Noteworthy are measures in the criminal law field . I have just visited England where there were many references to that Nation's first major reform of her criminal law in 600 years. I was given 44 Law Commission reports. 17 Law Reform Committee reports , and 10 Criminal Law Revision Committee reports . Most of the recommendations of these reports have been enac ted into law by England 's Parliament. Th is is the greatest reform of England's law in all history. There are many such examples of tremendous law reform programs in other nations. Italy's new divorce law is merely the most publicized part of recent law reform there . India's nationa lization of insurance is just an example of many far reaching Isgislative changes in that great Nation , There is a vast Agrarian law reform in Brazil and in other Latin American Nations. Laws to encou rage social and economic development and to improve government are being enacted throughout Africa. Japan's far reaching anti-pollution laws covering air and water are mode ls for other Nations. Law increasing the rights of women . a new environmental law. and rather sweeping judiCial reform and reorganization , highlight the recent law updating program of France . Germany's recent court reform is given impetus by law reform measures in both the criminal law and civil law fields, I understand Yugoslavia has enacted constitutional amendments providing your six Federal States greater autonomy and that many changes in criminal and civil law have

been made or are under consideration here. Even the Canon Law of the staid old Catholic Church is undergoing tremendous revisions, as Pope John once predicted to many of this group when he granted us an audience some years ago.

I could go on and on with examples proving that modernization of law is sweeping the wor ld by such recitations of new law developments and uses in many nations. But the examples cited prove my thesis of a vast turn to the law in the domestic area. They prove my claim that the people are demanding and getting more and more law to protect their freedoms and to provide better justice . They prove the ever growing reliance upon and respect for law by use of its concepts to provide newly recognized needs such as pollution-free air and water.

Adaptation of the taws of nations to the growing internationalization of life is an essential part of our task of building a world law system for a peaceful world order with justice. Respected domestic law is an essential foundation for our international law program. A people which does not respect and rely upon law domesti cally will hardly turn to and adopt and respect law internationally. In u Itimate thrust the basic principles are the same .

law Principles Underlying National and

International Law To be acceptable to the peoples of

today's world the basic princip les of international law must embody the same principles of fairness and reasonableness which underlie all respected domestic law . To be acceptab le internationa l law must be based on right reason . Some ancient international law fails to meet this test as it was formu lated to meet archaic situations which no longer exist. That ancient law can no longer be effective as it is no longer acceptable. Gaps which exist in international law must be filled with provisions so logical and so reasonab le they will be acceptable. The ru le of reason must be appl ied to and be embodied in all law, domestic and international , for which one can fairly expect universal acceptance.

The Center 's Task We in the Center must focus public

attention on the importance of the law making processes nationally and internationally, We must also focus pub lic attention upon the pri nCip les which should be embodied in updated law or in new law. We must mobilize law information and law manpower on

29

a world basis to serve man's thirst for an improved rule of law. We must service man's desire for improved justice in our courts. national and international. This is a task the legal profession has not ye t adequate ly per formed. We in the Center have done outstanding jobs on a few subjects in the international area. but we must gear up to do this law update and law expansion task on an ever-expanding sca le to fue l the entire law reform movement proper ly. The turn to the law is a most wonderful deve lopment and we must not let the law fai l ever growing pub lic expectations, re liance and respect.

Ours is a task of marshalling and dissemination of ideas, experience and information on both the laws of nations and international law. No one except the Center is perform ing this essentia l task of a central information source on the law of the wor ld, and we are not doing as good a job as we shou ld do and will do.

The Center's Program The Basic three components of the

Center's law program for the world community embodies : (1) internationa l law ru les to govern and guide transnational re lations among men and nations: (2) international law institutions such as Courts and quasi-judicial agencies to reso lve or decide peacefu lly dispu tes among men and nations: (3) enforcement of peaceful order with justice. Enforcement can be via proper international action including a police force or by en forcement of judgments of internationa l tribunals in national Courts.

The Center's program recognizes that each of these components is weak today. Its work program is in fact deSigned to strengthen each to the point that a law system for the Wor ld can rep lace the current force or arms system in providing security, in providing wor ld order with justice. The evidence overwhe lmingly proves that such a prog ram works within nations and wi ll work in the world community when universally accepted.

That international law ru les work when universally accepted is proved by such law ru les as those on diplomatic immunity, sea use. and air travel. The Postal Convention is unive rsa lly accepted law which wo rks so we ll one can send a letter in to and receive letter!! from every nation on Earth . Self interest of nat ions and the necessi ty of operating in ou r in ternationalized world is constantly expanding this list of universally accepted



and respected law rules. Especially is this true in areas like trade and travel.

That law institutions, courts and quasi-judicial administrative agencies work when universally accepted and respected is proved by the fact that all except one of the World Court's judgments (Eng land's recovery against A lbania for the latter 's mining of the Ocean) have been vo luntarily complied with. There has been similar compliance with the more than 1,QOO

judgments of the European Court of Justice on Common Market disputes. The International Civil Aviation Organization's decisions on disputes between airlines illustrate the workabi lity of such quasi-judicial institutions internationally.

UN police forces in the Congo, Cyprus and the Middle East have worked well. thus proving the effectiveness of an international police force to enforce peace. The tragic results of withdrawal of the latter c learly evidences this. That there is no

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international police force ready to enforce the peace when law break s down from time to time within or among nations merely proves its need . That no one has conceived of a police force capable of containing the World 's super-powers again merely proves the need for concentraled effort to develop an arms con trol program.

In today's world man can achieve any program he can envision . We can envision an effective arms control program and in time we will have it in being .

The Rome Convention agreement of European common market nations provides that their national courts will enforce judgments of the European Court of Justice. This is an enforcement idea which could well be emulated by Nations which belong to the World Courfs Statute and other international judicial bodies.

The World Peace Through Law Center 's program encompasses vast plans and proposa ls to strengthen the whole of the law of the world. The Center's work is the most ambitious program ever mounted to focus worldwide attention on law inlernationally. More than 150 specific international law subjects receive special attention of Center Committees. The UN's law development activities receive constant study and encouragement. The General Principles of Law Adhered to by Civilized Nations have been stated and adopted by the Washington World Conference in 1965. I have referred to the surveys of the laws of nations which have been or will be published. The treaties and conventions adhered to by nations have li kewise been assembled . A special publication which the then Chief Justice of the United States. Earl Warren. presented to the Geneva World Conference in 1967 surveys the treaty law of the World .

A plan to put the law of the World on a computer in Geneva. to computerize both the law of nations and treaty law, has been developed and awaits proper financing .

World Law Day Through sponsorship of WORLD

LAW DAY the Center seeks to focus attention by laymen as well as judges and lawyers on the promise and the effectiveness of the rule of law. Today is WORLD LAW DAY. In more Ihan half of the nations of the world there wi ll be a function or a Proclamation or a statement of their head of state directing attention to law and its potential for wor ld peace. President Nixon has issued such a WORLD LAW DAY Proclamation .

Researc h Repo rt s of Center Committ ees

The able research reports of Center ':;ommittees have produced solid foundations which forward law progress . Distinguished judges and lawyers have devoted themse Ives to producing we ll researched reports which are in fact landmarks along the law road which .the world is following. We realize that until experience and information is compiled. and careful study performed, mankind will not be willing to take large steps forward in accepting law so lutions to world problems. The Center's Committee reports perform this educational purpose . Their carefully researched proposals prod political leaders into act ion .

Illust rations of Cu rren t Center Crea t ive

Accomplishment s On Aircraft Hijacking , Leonard Sus

sholz and Bruce Piggot were given the task by the Bangkok Conference of energizing a vast reform of the Tokyo Convention and domestic laws of Nations to make Aircraft Hijacking law adequate to control that suddenly burgeoning problem. Within 30 days they- with expert help from airline, pilot and government officials-did a draft of a proposed convent ion and a

proposed model law for nations. Thousands of copies were sent in 3 languages throughout the world. At a Montreal Conference of representatives of governments on this critically important subject Chairman Sussholz spent days debating law needs and supplying information his Committee has compiled from throughout the world . For example, the Committee accumulated and published basic data on the punishment meted out by nations to some 350 Hijackers in the past 30 years. These punishments, ranged from 7 days to death . On the basis of the Montreal Conference and the Committee's research a redraft was then . done of the Center's Convention and its model law. Again world-wide circu lation was made. Again at the Hague Conference the ideas thus developed helped in drafting a new Convention. A Convention which is before all nations as of this moment for their consideration.

In the early 1960's Aaron Oanzig started talking and writing about recovering the riches of the seabed for the benefit of all mankind. At the Washington Conference in 1965 he stirred up enough interest to be asked to do a draft Convention. A resolution was adopted on this subject by the Geneva Conference in 1967. Since

then world-wide interest in this subject has flourished and the Center's reports, reso lutions and ever improving drafts of its Convention have attracted much highly deserved attention as they were circulated throughout the world . On this very day in Geneva the preparatory meeting on the proposed new Con ference on the Law of the Sea has these before it as part o f its foundation material. This was further vital pioneering work by the Center.

An enormous advantage of the Center lies in its capacity to search the world and select the best informed leaders on any law subject and harness their knowledge and capacity for the benefit of humankind. This has been true of the newest and most rapidly growing field of law, i.e., ecology or environment.

When the Bangkok Conference resolved that the Center make the Environment a major subject of concern , the Center persuaded the World 's greatest expert, Professor Carl A. Fleischer of Norway, to head up this Center effort. He drafted a Convention on Environment Control justly hailed by other experts throughout the world as the best possible starting point for

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a vast world-wide effort in this all important field . This Convention will receive major considerat ion at this Conference. but already it is part of the basic materials being considered by those preparing the UN's World Conference on the Environment now scheduled for Stockholm in 1972.

Everyone recognizes that clean air and water are an international problem o f vast magnitude. We are all fellow voyagers on space sh ip Earth and dependent on the same life support system. There is no such thing as local pollution . Air polluted New York, Moscow, London. or Tokyo can move poison into the air over Belgrade. Buenos Aires or Lagos. There is a growing realization that the threat to mankind of extinction comes not just from Atomic bombs but from deadly pollutants of air and water. Elimination of a poisoned, polluted environment is everybody's business. It is a global problem which demands a g lobal solution . Here a vast combined domestic and in ternation effort is required. This global effort can on ly be done through the law. International and domestic laws must be developed which provide the essential regulation at both levels of human pollutant activity. Here again the Center's Convention-the first ever drafted-is pioneering in providing a vital law service to humankind .

Weather contro l is one of man's most ancient dreams. In my Country we have tried to make it rain by using everything from Indian prayer dances to the rain gods to airplane seed ing of c louds . Scientists confi rm that weather control is indeed possible and international control is essential

to avoid disaster through individual act ions of nations. New York City once paid out enormous sums in damages when it hired a cloud seeder via airplane whose activities caused extraordinary c loudbursts which destroyed crops of many farmers.

On Weather Control the Center persuaded the world renowned Canadian Professor, J . W. Samuels, to draft an international convention on this subject. He did so in the form of a Protocol amend ing the ex ist in g World Meteorological Convent ion . This proposed new international law will regulate increases or decreases in preCipitation, the suppression of hail or lightning , the dissipation of fog and the suppression or diversion of storm systems. This facinating subject will receive major consideration here. The Bangkok Conference adopted a resolution requiring this Center effort after receiving a report that:

" Weather Control can be a more dangerous weapon than an atom bomb. It can be a means of torturing nations and continents into submission . This can be done by depriving them of their source of water, or drenching them with downpours."

Our program at this Conference on UN Charter Reform is based on two years of tremendous work by Dr. Max Habicht. The ideas which he and his committee of some 100 experts from throughout the world have developed will be debated at this Conference. That the suggestions finatly agreed upon will have a profound effect upon the future of the UN is certain . They will be sent to all Heads of State, foreign ministers, to UN Ambassadors of a ll nations, and to other influential people throughout the wor ld .

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The Center's more man 100 Committees provide a real window on the law world . They study every UN law action and every European Common Market or other international development. These studies are published in bi-annual reports which receive wor ldwide distribution .

Laws of Nation s The Center 's role with respect to

the laws of nations is to supply information on those laws to those who require such material and to draft model laws on those subjects, like airplane hijacking and envi ronment control, which lend themselves to such an approach .

Model laws to accompany treaties and conventions such as our airplane hijacking model is a new activity for the Center. Our environment. weather control. and seabed conventions must be accompanied by appropriate model nationa l laws. Here is a vast undone task to which the Center is addressing itself as the growing common life style and internationalization of life create more and more demands for similar laws in many nations.

Our Geneva office can supply the text of the laws of near ly all nations. We will develop a model law serv ice for Nations as the need is obvious and growing.

At this Conference we have an exhibit of Law Codes of Nations along with some national Constitutions, city codes, and other cu rrently effective law of nations. The Center's Wor ld Law Library in Geneva wi ll house these after this Conference. We have invited every nation to provide its current law for the Wor ld Law Library and have urged them to keep these up to date so the Center can supply the cur-

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32

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rent law of every nation to all who wish to use that information.

Progress of Center's Prog ram

The Center's law building program is practical and its accompl ishments impressive and encou raging . We have over the past eight years of the Center's existence gradually gathered strength in manpower, in knowledge of the law of the world, and in knowledge of how to work together to strengthen that law into an effective peace process. No group or association has done more. World-wide the law is on the march due in no small degree to Center initiatives. The Center has grown tremendous ly in scope and function . I am proud of our record .

Judges You Judges who have come here

from allover the World can do much to cause this law reform , this law re liance, and law respect, movement to grow for the great benefit of humanity. You can by exchanging experience in your Conference learn from each other of ways to improve and speed up court processes, of ways to make court processes more available to the poor, of ways to enable courts to provide an even greater protection for individual rights. You are the ultimate arbiters of justice as between men and men, man and government. There is no more important function than that of serving as judge. We honor and applaud you and wish you tremendous success in your efforts to develop methods to improve justice.

Work for Peace While recognizing that any success

ful world law system must be created on a solid law foundation which encompasses the whole of the law, we also recognize that our great goal is to deve lop a World law system capable of achieving and maintaining peace,

We meet to work together on programs to create world peace with order and justice. Billions for weapons and millions of deaths in wars have not brought peace. We must go to some other means. I sincerely believe that means is law. And just as I have emphasized the world-wide turn of the peop les to the law, let me underscore the turn of the peoples away from war. The "expectations" of the people of the world are important and the world's peoples today want and expect an end to war.

Belgrade, celebrated cross-roads of East and West, is a wonderful site for our work for peace, for peace under law. If we do our work well , we can hurry the day when law replaces force as the controlling factor in the fate of humanity. We here in Belgrade can create ' the dawn of a new day for peace. The peace process is a law process. The Age of Peace can only arrive when that law process is strong enough to provide peace .

To succeed in our program. man 's ancient tendency to depend upon war and violence to achieve his goals must be ended.

The mood of the world is for change, vast change in the way we

unite to achieve and to preserve peace .

At various times man has grown in mind to the pOint o f condemning brutality by man upon man which was previous ly considered moral ly correct.

For examp le, in years gone by, a convicted th ief's hand was amputated as punishment. Man no longer tolerates such bruta lity.

A few years ago it was lawfu I for men to due l to the death with swords or guns to settle even minor disputes. Such brutality is no longer tolerated .

Whi le war was once looked upon as a proper method for deciding international disputes and its brutality accepted as not immoral, recent wars have so revolted mankind that the brutality of war is no longer tolerated by most of humanity.

I believe that we are close to the day when use of the war method will end forever, just as cutling off hands of thieves and due ls to the death have ended. I am going to work and work and work to make that day of the demise of war a reality . I ask each of you to join this crusade. In the Center's program we have the capacity, the plan , and the program to carry the idea to fruition .

The people of our day overwhelmingly consider war an outmoded institution for the decision of disputes between nations. Everyone agrees that the price of war is not worth the cost in lives, in wasted substance. in disruption. and in human misery.

Many say eliminate the war method Cont inued on page 34

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of deciding disputes between nations, But few face up to the ingredients 01 how it is to be done. The only way to eliminate the war method is to replace it with a better method. That better method is the law process where in disputes go to cou rthouses rather than battlefie fds.

Who Are We Who Compose This Conference

• We are the law leaders of the world .

• We come from the whole of the world.

• We are the largest international law gathering entity in all history.

• We are the first world conference of law leaders in a Socialist Nation.

• We speak all languages. • We adhere to all religions. • We live under all forms of

government. • We share the common ideals of

the rule of law which transcend our diversities.

• We share a common belief in and respect for the rule of law.

• We are men of peace. having dedicated our lives to peaceful resolution of disputes between men and between nations.

• We in our talents exceed those of any body of men and women ever gathered in one Conference to work on law for peace.

What Can We Do? Due to man's overriding desire for a

peaceful world order with justice, our known capacities. WORLD LAW DAY. and world-wide publicity. the eyes of the world are today focused upon this

Belgrade Conference . We must achieve mightily to meet our responsibilities to the peoples ot the world . Their expectations are great. Great must be our efforts.

With this tide of law reform sweeping the wor ld it is our duty as men of the law to provide positive organized leadership for that reform . To bring about worthwhile changes requires that we use our knowledge of existing law as well as our capacity to write new law to aid in accomp li shing the law reforms which the peoples of the wor ld are demanding . Here in Belgrade we must review and expand the Center's Work program to provide the information, manpower and brainpower which are essential to cause this law reform movement to grow ever faster.

We should be proud of this turn to the law by the peop les of the world . As law grows in strength , as reliance upon law grows. respect for the law grows. As the law grows in usefulness it grows in importance to , and acceptance by, all humankind .

We here at Belgrade are not dealing with abstracti ons.

We are no t dealing with hoary precedents from musty law books nor indulging in the theoretical, the speculative. the Chimerical. the arcane, the fanc iful. the will-o·-the-wisp. We are not ru led here by the dead hand of the past.

We are dealing with clear and present dangers and the demands they make upon the law.

We are dealing with emerging problems of international law. We are preparing for the problems that we can see will be emerging in the future.

We are seeking new so lutions to old problems.

We are seeking new solutions lor new problems.

This is a Conferen ce o f creativity. Our job is to create new laws. new legal in stitution s. c rea te improvements for old laws and existing institutions.

The rusty, antiquated . obso lete . defective machinery o f internatio nal law must be upgraded and updated to the mechanical effic iency o f the space ship age.

Thi s opportunity to promote the peace of the world by readying the tools of international law is the greatest cha llenge that the lawyers of the world have confronting them .

Let no man of the law in any nation fail to vo lunteer his talents. his expertise, his prestige for the cause of world peace through the rule of law.

The pages of history prove that every perceptible turn to the law has created a golden era for humankind . Such is the lesson of Hammurabi 's Code . Justinian ' s Roman C ode, England 's Magna Carta. France 's Declaration of the Rights of Man and of the Citizen. Napoleon 's Code Civile. and the Un ited States Dec laration o f Independence and Const itu tion .

Man 's ceaseless search for ac hievement has brought forth a new technologica lly-advanced world . That ceaseless searc h must no w be focused on the creation of a Peacefu I World through intern ational law if an atomic ho locaust is to be avoided . From the beginning of histo ry until today. mankind 's greatest dream has been a warless world . a peaceful o rder with justice internationally. But never befo re has the achievement of this dream been so urgent.

There is a convic tion . based on an

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On October 1, a "New Developments in the Law " panel was presented at the Law School. The panelists were Oscar Fendler of Bytheviffe who spoke on " Judicare," Ed Bethune of Searcy who spoke on " Progress of Criminal Standards Committee" and John Lineberger of Fayetteville who spoke on the " Public Defender Program." Moderator and organizer of the program was Don Schnipper of

World Law Continued from page 34

understanding of the sum of history, that mankind can enjoy safe and or· derly progress only under the Rule of Law. While the pages of history are in large part a chronicle of wars and warrior and the weapons they used to kill, destroy and enslave , no one can dispute that the brightest chapters of history are those which record advan· ces in utilization of law. The golden eras of man 's past have always been those where the Rule of Law has prevailed, providing order, growth and progress. In every city, state, province or nation. civilization has blossomed and advanced as law has replaced force . Every new advance in civiliza· tion's progress has been accom· panied by a new crest in the use of the rule of law. The regressive eras of man's past have always been those where the Rule of Law has broken down bringing chronicles of fear, horror and death.

This understanding of the relalion· ship between law, order and progress is in the public mind universally. This is true regard less of race. religion , language or form of government. It applies to internationa l re lations as well as to local or national relations. This understanding explains why humankind has so strongly turned with such great expectation to the law.

This understanding exp lains the cu rrent law reform movement. The current law reform movement presents to us judges, lawyers and teachers of law a great challenge, a great oppor·

Hot Springs who has been responsible for presenting several programs for the students at the Fayetteville Division of the Law School over the' past several years.

Ruth Brunson of the Little Rock Division recently appeared on the program of the Conference For Legal Secretaries which was held at the Coachmen's Inn in Little Rock . Ruth also was appointed to the Special

tunity. Let us here and now resolve to live up to that challenge . let us seize and live up to our opportunity.

I propose that WP. here in Belgrade recognize the law reform movement which is sweeping the world and that we take action here and at home to lend impetus and to provide positive organized leadership to that movement.

let us march proudly forward toge· ther under the banner of the law with full knowledge that every strength· ening of the rule of law will meet with overwhelming approval of all men of peace in every nation on Earth .

Life in the 1970's must be based upon eternal preparation for peace, not eternal preparation for war. This means and can only mean vast revi· sian of law and law processes to pro· vide peace.

The world·wide turn to the law gives to the law an ever growing importance . This means that the role of our profession is also growing in impor. tance . It is growing in numbers. in capacity, and in influence. let us use all of these to help create a peace edifice out of law which ' will translate humanity's most ancient dream into reality . let us use all of our capacities to create a law system Which can pro· vide a Warless World in which a peaceful o rder and equal justice wi ll exist for all men and for all nations.

We of the law know wel l that whenever and wherever the ru le of law prevails any man, woman, or ch i ld can walk anywhere on the face of the Earth or trave l into the vistas of end· less space in freedom, dignity and peace .•

35

Committee on Law library Service to Prisoners of the American Association of Law Librarians by Mrs. Vio la Bird, president of that organization .

Assistant Professor David Hendrick of the Little Rock Division spent some six weeks in Washington this past summer as Consultant to the Program of Advanced Policy Studies of George Washington University law School. The project involved a Type B Operation Breakthrough contract with the Housing and Urban Development Department. David is also coordinator of the Wiretap Project Subcommittee of the Committee on Civil Rights and Civil Liberties of the Young lawyers Section of the American Bar Associa· tion .

Several new additions to faculty have been made this year. Milton Copelanq who is a native of Hope came on as Associate Professor. Milt holds a bache lor and masters degree from Abilene Christian college and received his J .D . from George Washington University. He was most recently in the private practice of law in the los Angeles area. Gary Nelms came to the Fayettevi lle campus as an Assistant Professor this fall. Gary re· ceived his lL.B. from Duke University and was in pr ivate practice in St. louis, Missouri . Glenn E. Pasvogel joined the Little Rock Division as Assistant Professor this Fall. He was most recently a Graduate Teaching Assistant at the University of Il l inois School of law. G lenn received his un· dergraduate degree from Elmhurst College and his J.D. from DePaul University.

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EXCELSIOR· LEGAl STATIONERY CO. INt. 62 Whit. Str .. t, Ne. Yortr,. N. Y. 10013

In Memoriam John W. Barron (1904-1971)

John W. Barron, senior member of the law firm of Rose. Barron, Nash. Williamson . Carroll. and Clay. died in Houston. Texas in November. 1971. after an illness of several weeks.

Mr. Barron was born in St. Louis, Mo., and was educated at Webster Military Academy in Alton . Illinois. and also at Washington University in St. Louis, from which Institution he received his law degree. He has been a resident of Arkansas and a member of the Arkansas Bar Association since 1921; and is sur~ vived by his wife. Mrs. Lorna Barron , a son John W. Barron II. a daughter Mrs. Lorna Sharp. and a step-son Alston Cameron. Mr. Barron was one of the most experienced trial lawyers in Arkansas.

John E. Bull (1942-1971) John E. Butt died in a camping

accident in October, 1971 . He was born on Feb. 17. 1942 in Fayetteville. Arkansas, the son of Dr. and Mrs. W. J. Butt. and Ihe grandson of Han. F. O. Butt of Eureka Springs. slill one of the geat lawyers of Arkansas.

John E. Butt graduated from the law school of the University of

Arkansas in 1966. and was a first lieutenant in the army reserve. and also a member of the Arkansas Bar Association. At the time of his death he was deputy prosecuting attorney of Pulaski County. He is survived by his wife. Mrs. Ouida White Butt. his parents and grand father . and also by his uncle. Chancellor Thomas F. Butt .

Bruce Ivy (1893-1971) Mr. Bruce Ivy died in a nursing

home in Hattiesburg. Miss. after a lengthy illness.

He was born on a farm near Henderson , Tenn . in 1893; and received his education at Freed-Hardeman College in Tenn . and also Cumberland University in Lebanon. Tenn .. from which institution he received his law degree. In 1921 , he came to Arkansas to visit a kinsman, and fell in love with the State and its people, and moved to Osceola. Arkansas where he lived and engaged in the law practice tor nearly fifty years. He was a member of the First Christian Church. the Rotary Club and also the Arkansas Bar Associat ion .

Until his health failed . he was one of the most active and successful lawyers in eastern Arkansas.

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Canon 8 Footnotes Continued from page 12

sibility 10 do oulslde work and 10 S8fVe Ihe public as a whole. See also M. Pirsig . Cases on ProfeSSional Respon. sibility 332 (1965) Uhe editor deyotes si ~ pages to yariOUS short statements urging the lawyer's role in law reform and public professional responslbilily) : Slone. The PuOlic In l luence 01 the Bar. 48 HafV. L. Rey I (1934) (this is a printed lecture on Ihe lawyer and public professional responsibility. In which the lale Justice caul Ions against the trend 01 lawyers in becoming 100 cllent-orlented. He UrOIJ5 the bar aod indl ... idual lawyers to follow tne lead 01 a lew professionals by joining With law SChools in law retorm activilies).

, Stayton. Cum Honore OffiCium. 19 Tex. B.J. 765 (1956). Paul. The La wyef as a la~ Adviser. 25 Rocky MI. l. Re .... 41 2 (1953). concedes thai through a lawyer should not lei his priyate notions olliscal policy intrude Into work lor his c lients. he should nOI hesitate to make eHorts toward im· proying tax law when he is nol work ing lor clients. See Generally Gibson. ABA Code Canon 5-Pro/esslonal JUdgment. 48 Texas l. Rev. 351 (1970) .

• V. Counlryman & T. Finman. The Lawyer in Modern Society (1966).

e list includes Joe C Barren. Jonesboro. Arkansas. Robert A. Lellar. Fayene ... llie. Arkansas: and Edward L Wright. linle Rock . Arkansas . •

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MERCANTILE BAN K· JONESBORO, ARKANSAS 72401. ..

RESOLUTION

Joe C. Barrett has retired after 18 years of service as a Director of Mercantile Bank. There are no standards by which his contribution can be measured. Nevertheless, we

who have worked with him know that it was substantial. His reputation reflected maturity, sound judgement, high ethical standards, foresight - all those qualities which every Bank tries to project as its image.

Contribution to the image of the Bank would have been enough for some busy, successful men, but not for Mr. Barrett. He was a working director. He constantly probed for weaknesses in bank policy or procedures. He suggested new approaches to old problems, and explored alternative solutions to new problems.

Now, therefore, Be it Resolved by the Board of Directors of Mercantile Bank, that Joe C. Barrett, by this means, be made aware of the sincere appreciation of his fellow directors, and through them, of all stockholders and employees, for his service to the Bank.

Adopted this 17th day of August , 1971.

Attest :

L. l(l~ Chairman of the Board

;

january 1972

Documents

arkansas bar assoclatlo

arkansas bar center

th e arkansas lawyer

editorial committee

vicepresident robert

robert brockmann

young henry woods robert

ross john lile