~--1111•••111:

FOR THE PRACTICING ATTORNEY~--1111•••1111

Arkansas EminentDomain DigestArkansas Supreme Court cases on eminent domain com­piled in digest form. Table of Cases; word index.2M PAOli, MA"O.CUND, ,... "2.50"

Workbook for ArkansasEstate Plannersby MitchefJ D. Moore and Wilfiam H. Bowen

Everything lor the estate planner. Checklists, forms, ideas,techniques in convenient looseleaf binder.11 CHAPTERS, 1M7 135.00'

Arkansas Statutes Annotated25 volumes (1947) with 1975 Supplements and 1976Noncumulative Supplement

1225.00· In the St.te of Ark.n•••

'Plua ahlpplng. handling and sales tu where applicable.

Probate laws of ArkansasProbate Code of Arkansas and other laws of the ArkansasStatutes pertaining to probate practice in one convenientvolume.465 PAGES, HARDBOUND. lie1 with Suppl.ment 130.00'

187&-HI77 Supplement onl, $13.50"

Arkansas Banking LawsA comprehensive one-volume survey including provisionsof the Arkansas Statutes relating to banking.44e PAGES, HARDBOUND, lMe 125.00"

Contact your Arkansas representative,Mr. Joshua E. McHughes

Tel. (501)376-9131

law Publishers Since 1855

The Michie CompanyBohhs-Merrilllaw PuhlishingPost Office Box 7587Charlottesville, Virginia 22906

ATIORNEY'S PROFESSIONAL PRACTICE LIBRARYby

MATIHEW BENDER COMPANY

550.00 $375.00 20.00(includes

2 yearsservice)

517.50 414.00 20.00

300AY NON·INTERESTLIST "SPECIAL" MONTHLY

PRICE PRICE PAYMENT

$795.00 $595.00 $30.00

543.50 495.00 30.00

312.50 262.50 20.00

FORMS

PERSONALINJURY

PROCEDURE

TAX

CRIMINAL

TITLE

"Current legal Forms"by Rabkin & JohnsolT"

"Allorney's Textbook of Medicine"

"Products Liability"

"Moore's Federal Library"Moore's Federal PracticeBender's Federal FormsWeinstein's Rules of Evidence

"Bender's Forms 01 Discovery"Vol. 1-10 - Depositions &Interrogatories

Vol. 11-16 Discovery Procedure andForms

"Federal Income, Gift and EstateTaxation" by Rabkin and Johnson

"Criminal Defense Techniqueslibrary"

THE NEEO

To Implement 75% of yournon-litigation office business.

To understand and evaluate theinjuries in damage claims. andprove or disprove Iheirexislence.Table 01 cases on 750 items.

To build inlo any case - state orfederal - the procedural guidanceand interpretation 0' the acceptedauthority.PrOVides full and proper guidancein state and federal court with courttested forms.

The best safe guard againstmistakes in lax planning andsolving tax problems.

The latest and most successfuldefense strategies. Completedefenses for special areas.

600.00 500.00 30.00

William Margrave#43 Lake Side Drive

Little Rock, Arkansas 72204(501) 568·1841 (Call Collect)(N. E., S.E. & S.W. Arkansas)

I:>-.MATTHEWBENOER

Fred Stacy10162 South Marion

TUlsa, Oklahoma 74136(918) 663·3553 (Call Collect)

(N.W. Arkansas)

Addenda,continued from page 55award to Wright states: "Hisgreatest monument was the leader­ship he provided in the painstakingwork of drafting and in the sensitivetask of securing adoption of ourCode of Professional Respon­sibility." This revised code to governlawyers' professional conduct wasadopted at the ABA's 1969 annualmeeting and nearly all states haveused it as a guideline in draftingtheir official codes. The revision, ac­complished while Wright was chair­man of an ABA Special Committeeon Evaluation of Ethical Standards,replaced the original ABA Codeadopted in 1908.

In addition to his ABA offices,Wright has served as president ofthe Arkansas and Pulaski CountyBar Associations and the AmericanCollege of Trial Lawyers. He alsoserved as chairman of the ABA'spolicy-making House of Delegatesin 1962-63 and was a member of theHouse for 36 years, 21 as chairmanof the Arkansas delegation. WhenWright became ABA President in1970, he was the second Arkansanto head the organization. The firstwas the late U. M. Rose, also of lit­tle Rock, in 1901-02.

A native of Little Rock, Wrightreceived an A.B. degree from LittleRock College in 1923 and an LL.B.degree from Georgetown Universityin 1928. Georgetown also awardedhim an honorary Doctor of Lawsdegree in 1968. Wright was chair­man of the Arkansas Board of LawExaminers from 1938 to 1941 andhelped draft the Arkansas ProbateCode in 1948. He served as the Ar­kansas representative on the Na­tional Conference of Com­missioners on Uniform State Lawsfrom 1945 to 1957 and as a memberof the Second Hoover CommissionLegal Task Force in 1954 and 1955.

In 1963 he was appointed alter­nate delegate to the first World Con­ference on World Peace ThroughLaw, held in Athens, Greece. Hewas a Fellow of the American BarFoundation, American College ofProbate Lawyers and AmericanCollege of Trial Lawyers.

Among his many awards wereOutstanding Lawyer Award of Ar­kansas Bar Foundation, 1963; Hat­ton W. Sumners Award of South-

se/A",an.a. Lawyer/January 1978

western Legal Foundation, 1965;and National Conference of Chris­tian and Jews Brotherhood and Hu­manitarian Award, Arkansas Chap­ter, 1969.

LEGAL AID PROGRAMApproximately $700,00.00 in

federal funding will be available nextSpring to support the establishmentof new legal aid programs in Ar­kansas or the expansion of existingprograms into adjoining counties,according to an estimate given theLegal Aid Committee by theRegional Director of the Legal Ser­vices Corporation. The Corporationissued grants in excess of $560,000for legal aid expansion in Arkansasthis year. As a result indigents inseventeen counties now have ac­cess to a legal aid program.

To assist in the planning of theuse of the expansion funds, theexisting legal aid programs fundedby the Corporation have created aLegal Services of Arkansas Pro­grams Office. Ms. Mary Johnstonhas been hired as Planner for thePrograms Office. The Office is fund­ed by a six-month grant by the Cor­poration to the Central and North­east Arkansas Legal Aid Bureaus.An application to the Corporationfor permanent funding of this posi­tion is pending.

Ms. Johnston is writing and travel­ing in Arkansas to gather informa­tion from attorneys, social servicespersonnel, community action agen­cies and other community groups(1) to assess local needs anddesires for a legal aid program, and(2) to determine the feasibility ofstate-wide administration of legalaid programs in Arkansas. ThePrograms Office is presently govern­ed by a committee which includesWayne Boyce, President-Elect of theArkansas Bar Association, VincentFoster, Jr., Chairman of the LegalAid Committee, Griffin Stockley,Director of the Legal Aid Bureau ofCentral Arkansas, Robert Lamb,Director of Legal Services of North­east Arkansas, Inc., and DouglasWilson, Director of NorthwestArkansas Legal services.

Ms. Johnston graduated fromMichigan State University, and thenwas a Vista volunteer at Jonesboro.She recently graduated from the

University of Arkansas School ofLaw at Fayettevilie.

The Legal Aid Committee urgesthe cooperation of lawyers and localbar associations with Ms. Johnston.If you have an interest in a legal aidprogram in your community, orwould like additional information,you may contact either the LegalAid Committee or Ms. Mary John­ston, Suite 36 Hall Building Annex,209 West Capitol Avenue, LittleRock, Arkansas 72201.

HUMANITIES SEMINARSThe National Endowment for the

Humanities, a Federal agency, willcontinue its program of humanitiesseminars for lawyers and judges in1978. The seminars - which meetduring the summer at selectedcolleges and universities - willbring lawyers together for a monthof full-time study under the directionof distinguished philosophers,historians, and others. The seminarsare designed to give participants theopportunity to stand back from theirwork and explore the humanistic di­mensions of their profession bystudying such topics as the legalprofession and social justice, the re­lationship between lawyers' per­sonal and institutional roles, and therelationship between crime andpunishment in a democratic society.A second series of seminars open tothe members of various professions,including lawyers, will deal with theethical dimension in contemporarylife, value confli~t in our society, thecultural foundations of U.S.-Asianforeign relations, individualism inAmerican society, and con­temporary religious movements.

From 12 to 15 persons will attendeach seminar tUition-free, receivinga stipend of up to $1,200 to cover ex­penses, plus reimbursement fortravel. Lawyers in all sectors of legalemployment, except those with full­time academic appointments, mayapply. The application deadline istentatively set for April 17, 1978. Fur­ther information about the seminars,application forms, and selectioncriteria may be obtained from:Professions Program, Division ofFellowships, National Endowmentfor the Humanities, Washington,

D.C. 20506. "

MEMBERSHIPSURVEY RESULTS

The following items on The Ar­kan... Lawyer were listed in therecent Membership Survey:

"I read The Arkan... Lawyer:__Cover-to-cover each issue.__Occasionally.__Never.

"The Arkan... Lawyer should:--Contain less news (RegularFeatures) and more professionalessay articles (Special Features).__Should not change.__Kindly give your overall evalua­tion of our Bar Journal:"

We included these items in theMember.hlp Survey with sometrepidation. The Arkan... Lawyer isgenerally recognized around theother State Bar Associations as oneof the finest law journals; 'manyassociations have now adopted thismagazine type for their publications.

On September 27, 1977, wereviewed all of the Memberahlp Sur­veya received. Conceming the firstitem - 109 indicated that theygenerally read The Arkan... Law­yer "cover-to-cover"; 104, "oc­casionally"; and 3, "never".

Thus there were 213 qualified togo onto the second item. 44 favored"less news and more professionalarticles"; 137 were satisfied with thecurrent content; and the balance didnot show any preference.

Re overall evaluation of The Ar­kan... Lawyer, 24 gave an "ex­cellent-very good" rating;· 52,"good"; and 11 "average", The re­maining gave no rating. Some madeconstructive suggestions.

We are most appreciative of thevaried constructive suggestions.The trend is towards more pro­fessional articles - this is sup­ported by the 44 who favored "lessnews". The so-called professional

ADDENDAby C. E. Ransick

Editor

articles include "how to" articles,topics of interest, input from practic­ing lawyers, "practical" articles,"continuing education" coverage,"areas of specialization" features,Arkansas statutory and case law,"pro and con" controversial topics,current developments in law, andcriminal law matters.

Based upon the Memberahlp Sur­vey,

(1) We will continue the RegularFeaturea (President's Report, JurisDictum, Legal Economics, LawSchool News, Oyez-Oyez, InMemoriam, Executive CouncilNotes, Context, Ethics, AICLENews, Aegis and Addenda) to keepthe membership advised as to thecurrent "goings-on" of the Benchand Bar in Arkansas.

(2) We will make an especial effortto publish more articles on the"practical areas of the Law", as onesurvey put it.

(3) Except in especial cases,issues will no longer be dedicated toany individual. This January 1978issue on Mr. Harry Meeks is the typeof especial case considered ap­propriate for continued bar journalcoverage.

Finally, we invite the member­ship's future comments for the bet­terment of The Arkan... Lawyerand, moat Importantly, your ownlegal articles for consideration forpublication. Who better than the Ar­kansas lawyer to write a "how to,""practical" article on current d&­velopments in Arkansas law for the"continuing education" of his fellowlawyers! I Your cooperation and as­sistance are much appreciated.

HONOREDThe International Academy of

Trial Lawyers honored senior JudgeJohn E. Miller of the Western Districtof Arkansas U.S. District Court with

a banquet and ceremony on August7, 1977 at Jacques and Suzanne'sRestaurant, Little Rock.

President of the Academy SidMcMath stated that the Academy'sBoard of Directors had voted in aNew York meeting in Februaryto honor Judge Miller, describinghim as "one of the great trial judgesin the United States". Judge Miller,now 88, has been a federal judgesince 1941, when he resigned fromthe U.S. Senate to accept appoint­ment to the Bench. He has been on"senior judge" status for years, butstill presides over a few cases.

U.S. Senator Dale Bumpers, ChiefJustice Carelton Harris of the Arkan­sas Supreme Court, Federal JudgeOren Harris, and Arkansas BarAssociation President Walter R.Niblock were among those presentpaying tribute to Judge Miller. Over100 lawyers - many visiting fromother States in the Academy's Cen­tral United States Region - at­tended the ceremony. The Academypresented Judge Miller with aplaque for the occasion.

AMENThe American Bar Association

has posthumously presented itshighest award - the ABA Medal ­to Edward L. Wright. A past ABApresident and described as a giantin the organized bar, Wright died af­ter being stricken by a heart attackin his office on February 2, 1977.Justin A. Stanley, then ABA presi­dent, presented the medal toWright's son, Edward L. Wright, Jr.,during an ABA Assembly session onAugust 8, 1977.

The controlling criterion for earn­ing the ABA Medal is "Conaplcuou.MrVk:e to the cau. 01 Amertcanjurlaprudence."

The citation accompanying thecontinued on page 56

January 1978/Arkansas Lawyer/55

bills to clients whose names begin withA through F the first week in everymonth, G through M the second week, Nthrough S the third week, and the lettersT through Z in the fourth week. In thisway you will prepare billing a little at atime all Ihrough the month therebyavoiding the slowdown in preparation ofclient documents which occurs withyour present monthly system.

In addition to being the lawyer'ssource of income, the lawyer's bill canbe and often is the source of poorlawyer-client relationships. Well con­structed, carefully itemized billsproduces by simple timekeepingmethods can do much to improve thatrelationship. '"

MEMORIAL GIFTS

only to find your client horrified at theamount. An unexpectected bonus of amonthly billing cycle is this - you willidentify the client who can't or won't payyour bill before you have buill a largefee. If you are not going to get paid foryour services, you will know after amonth or two rather than at the conclu­sion of a lengthy, complex legal matter,and you will have an opportunity todiscuss the situation with your clientwhile he still needs your services.

If you already have a monthly cyclebut find that the total production of thefirm for several days at the end of themonth revolves around the preparationof bills, consider modifying your billingcycle to a cyclical one. That is, send

"It is more blessed to give than to receive."However, a member profits both ways with a memorial

gift 10 the Arkansas Bar Foundation. One's gift is a beauti­ful way ofhonoring a former colleague and friend. The giftis noted in the Foundation's Memorial Book and, ofcourse, is tax deductible. The family of the deceased is mostappreciative of such remembrance.

One may record the Memorial Gift in two ways, viz.:(I) The new Memorial Cards have just been furnished

each member for direct mailing in one's own business en­velope to the family of the deceased. Thus, the family willbe immediately notified of the thoughtfulness of the donor.The check is sent to the Foundation at the same time fornotation in the Memorial Book. Additional MemorialCards are available upon request. It is emphasized thatthese are new-type cards - never before available.

(2) Memorial gifts may be sent directly 10 the ArkansasBar Foundation, with request that the Foundation send amemorial acknowledgement to the family of the deceased,naming the contributor but not specifying the amountgiven. The memorial cards are formal and promptlydelivered upon receipt of the memorial gift.

Either way is most appropriate. One's thoughtfullness inmaking a memorial gift to the Arkansas Bar Foundationwill not only meet with the complete approbation of themembers of the family of the deceased, but will at the sametime provide the Foundation with funds to carryon thenoble purposes for which it has been dedicated.

Lege. Economicscontinued from paga 53client. If you send a bill for $300 and thebill shows three short entries, the clientwill automatically assume that you'recharging him $100 per entry. Hisresponse is often, "Why, he charged me$100 for that phone call, and we onlytalked ten minutes!" If instead you ex­pand the description at services or typethem in a narrative form. using widermargins on a smaller sheet of stationeryso that more lines are needed and lesswhite space is visible, you can avoid thisresponse from the clienl. Instead, the ef­fect is this: "He did so much for me ithardly fits on one page!" That's theresponse you want when the clientreceives your bill.

Don't send a bill for several thousanddollars with only a one or two-linedescription of services rendered. Yourclient will have no idea of your effort onhis behalf (and perhaps the efforts ofseveral others in the firm) and will reactwith outrage, possibly refusing to paythe fee. Bills of this type are the result of(1) no billing system or (2) no billingsystem plus the lawyer's reluctance totake the time to review the file in order toitemize the bill. Any billing system is animprovement over this type of bill.

Nothing makes a client unhappierthan to have a bill sent to a wrong ad­dress, his home instead of his office (orvice versa), or to him personally ratherthan his company. To avoid these mis­understandings, include billing instruc­lions on the index pages in the note­books or on the index cards in cardtrays. Indicate thereon whether the bill isfor an individual or a corporate entity ad­dressed in care of an individual in thecompany. Indicate also the billing ad­dress particularly if it differs from theusual mailing address for correspond­ence to the client.

When you review the draft of the bill,indicate whether you want the bill mailedas is or whether you want it returned toyou so that you can enclose a cover let­ter with it. A well~rafted cover letter cancushion the blow that a lawyer's bill of­ten deals to the client and can inform theclient of unusual or unforeseen cir­cumstances which resulted in a higherfee or, happily for the clien~ a reducedfee.

Offer to send monthly bills to yourclient - you will be surprised at thepositive response you will receive fromyour clients to say nothing of your im­proved cash flow. Most of us today aregeared to monthly payments - alawyer's services need be no exception.It Is much easier for you to prepare andfor your client to pay a monthly bill thanit is to stagger through the preparation ofa bill covering many months' services,

54/Ar1<ansas Lawyer/January 1978

DATE INITIALS CLIENT MATTER CODE TIME

s

MONEY

AOOITIONAL COMMENTS: _

!'"Olf"" SAM·2&4M (&.70)Fig. 1

the previous systems, the notebookpages become a first draft of the bill;however, the automatic typewriter pro­vides two important bonuses; (1) no reotyping is necessary to create the finalbill - the final bill -the secretary sim­ply edits the media instead; (2) no time­consuming filing of cards and slips andno waiting for cards to be pulled, sortedand typed. Billing entries are instead "fil­ed" on the media.

A billing notebook provides anotherbonus - an instant review of billablecharges at any time. Should a client askfor an estimate of your fee to date, youcan provide it quickly and accurately byreviewing the notebook entries for thatclient.

More sophisticated billing methodsare available and are rapidly becomingaffordable for smaller firms. Thesesystems require small computers orelectronic word-processing equipmentutilizing minicomputers. Depending onthe equipment used, such reports asautomatic aging of accounts, paymentrecords, and profitability reports areavailable as a byproduct of the billing in­formation typed into the system.

Equipment is available which com­bines word processing (automatic orpower typewriting) and data processing(--billing systems for lawyers---) on onemachine an important consideration forsmall firms.

Keep billing materials in your brief­case, regardless of the system you use.Keep extra time cards or slips and a sec­ond calendar at home to record themany requests for services or advicewhich every lawyer receives at home.

Here are a few important tips regard­ing the appearance of the final bill andthe effect that appearance has on the

continued on page 54

I I

I I CL.U:NT CJI>SC I;DATE TOTAL

TIME0 T C 0 C R L :I E N P T E I

II

:II

:;I

:I :

I. . I

Fig. 2

.1 hr. = 6 minutes

.2 hr. = 12 minutes

.3 hr. = 18 minutes

.4 hr. = 24 minutes

.5 hr. = 30 minutes

.6 hr. = 36 minutes

.7 hr. = 42 minutes

.8 hr. = 48 minutes

.9 hr. = 54 minutes

1.0 hr. = 60 minutes

Fig. 3

January 1978/Arkansas Lawyer153

LEGAL ECONOMICSby Fran Shellenberger

How To Send A Bill Your Client Is Willing To Pay.Nearly every lawyer with whom I have

talked in the past several months hasasked for my help in creating billingsystems. Their complaints vary from "nosystem whatsoever" to systems whichtake a week to complete fiNery month.Lawyers with no billing system afespending time on behalf of clients forwhich they do not get paid because theycannot or do not send a bill. At best theyguess at a fee. send an unitemized billfor services and hope the client doesn'tcontest the fee. At worst, the delay be­tween the time services are performeduntil the time the bill is sent is so greatthat most lawyers either send no bill atall or greally reduce the fee.

The object of any billing system is topresent a bill showing the lawyer's ef­forts on behalf of the ctient for which thelawyer is entitled to a fee and to itemizethe out-of-pocket expenses incurred onbehalf of the client for which the lawyersmay be reimbursed.

Simple or complex - every billingsystem requires some means of record­ing the client malters handled daily. Thisrecord includes the date, client or filename, a description of the services, thelawyer's initials and a method of deter­mining the billing rate, whether hourly orotherwise, on which a fee may be based.

Timekeeping methods, such as billingcards and timeslips, have been dis­cussed in an earlier column. (see THEARKANSAS LAWYER, Legal Eco­nomics. "Keep Time - Your Time andHour Time," October, 1975). To reviewbriefly, timeslips and cards are printed insuch a way that the lawyer has only tocheck a box or circle an initialled refer­ence to describe services. using an abo­breviation code which appears on everyslip for easy reference. There's a blankfor the file name or number, the lawyer'sinitials and a place for entering a two­digit number or fraction to indicate thetime involved. These cards are a greattimesaver themselves because they takemost of the time out of timekeepinglThey are available commercially (seeFig. 1) or you can design one that fits theneeds of your firm and have it printed 10-

52/Arkansas Lawyer/January 1978

cally (see Fig. 2). Figure 3 shows a chartyou can use for figuring time charges indecimals. I have found decimals to bemuch more convenient than fractions incomputing time charges.

In use, the lawyer will work with apage or sheet or timeslips or pertoratedtimecards, making notes on the slips asthe day's activities progress. For in­stance, if a notation has been made inthe morning regarding a telephone con­ference with Carl Client and another callis made on that client's behalf later inthe day, it is not necessary to writeanother card; simply make a second en­try on that same card.

Regularly, preferably daily, the slipsshould be gathered by a secretary orbookkeeper for "processing," which cantake several forms. If cards are used,generally they are filed in card trays con­taining index cards for each client orclient matter. (If you prefer, they may beplaced in a pocket or envelope in thefile). At billing time, the cards are pulled,arranged in chronological order (or inchronological order by attorney ifseveral attorneys are handling the mat­ter) and a draft statement is preparedfrom the information on the cards. Then,either the secretary or the bookkeeperadds the out-of-pocket expenses, totalsthe billable hours and presents the draftto the attorney for review. If enough in­formation has been provided on thetimecards or slips, no review of the file isnecessary to complete the bill. All thelawyer has to do is edit the draft copy,set the fee for services, and return thebill to the secretary for final typing. Oncein final form, extra copies are made foroffice records (and for the client's file ifyou wish) and the bill is ready to mail,with or without a cover letter as circum­stances dictate.

If you dislike handling time cards andslips, (or if you can't get other firm mem­bers to use them), it is possible to adaptyour appointment calendar for billingpurposes. The trick is to use a calendarallowing enough epace per entry to ac­curately describe the services. (If youdon't make a detailed entry, the informa-

tion will be unusable for billing pur­poses, and you'll end up not chargingthe client for the work or reducing thefee because you can't justify it.) If youuse your appointment calendar forbilling purposes, ask your secretary topost the information thereon onto billingpages kept in a 3-ring notebook at herdesk. When it is time to send a bill, hernotebook pages will serve as the firstdraft of the bill. From that information, itis fairly simple to prepare a final bill. Thecalendar method is not the best billingmethod available, but many lawyers whorefuse to adopt more sophisticated bill­ing systems will use it.

If none of the above methods appealto you or if the "systems" approach is of­fensive to others in the firm, try this sim­ple dictation method. At the end of eachitem dictated, include billing instructionsfor that item at the conclusion of that dic­tation. Simply say, "charge .5 hr for thisletter, etc." Your secretary alreadyknows which client or file to charge, (ifshe doesn't, she will ask you) she knowsyour initials and today's data. Havingtranscribed the letter or instrument her­self, she can accurately describe theservices being billed. She then typesthese billing entries onto billing pageskept in a 3-ring notebook at her desk.When you're ready to bill the client, sim­ply review the billing pages, treatingthem as a first draft of the bill. In thisway, your secretary can actually main­tain billing records for you as a by-prod­uct of her daily dictation. I have used thismethod successfully for a lawyer inanother state where no billing systemexisted in the firm.

All of these billing methods may bestreamlined somewhat if you use anautomatic typewriter. Instead of filingtime cards and slips or manually typingbilling entries onto notebook pages,have the entries typed daily onto themedia used by the automatic typewriter- either a disk, tape, card, memory orbuffer system. Have the secretary keep aprintout or copy of the billing entries in anotebook, with alphabetized or num­bered tabs for client identification. As in

(3) The generaJ scope of the Investigation lncludinla description of the offense and, if permitted bylaw, the Identity of the vl(dm.

(4) A request for usb-lance in apprebendina a sus­put or assistance In other matten and the [0..formation necessary therein.

(5) A warnlna 10 the public of any danaers.(B) A lawyer or law firm associated with the prosecu­

tion or defense of a crimllUll matter shall not, fromthe time of the fiUn. of a complaint, information, orludictmeot, the bisuaDce of an arnsl warraat, orarrest until the commencement of the trial or dis­position ,,-ilhoul lrial, make or participate in mak.Ing .an extrajudicial statemtnl thai a reasonableperson would exp«1 to be disseminated by mearuof public communication and tbal relath' to:(1) The characler, reputation, or prior criminal

record (including arrests. indictments, or olbercbarges of crime) of the accused.

(2) The possibility of a plea of guilty to tbe offensecharged or 10 a lesser offense.

(3) Tbe exislence or rontents of any confess-Jon, ad­mission, or sLattment gh en by the accused orhis refusal or failure 10 make a stalemenL

(4) The performance or results of any examinationsor tests or the refusal or (aUure of the a«usedto submit 10 naminations or tests.

(5) The IdentilY, lestimony, or credibUlly of a pros-­pectin witness.

(6) Any opJnion lUi to the gulll or innocence of tbeaccused, the e"id~oce, or Ihe merits of the case.

(C) DR 7-107 (B) does not preclude a lawyer durin,such period from allJlOuncing:(I) The ".arne, age, residence, occupatioo, and fam­

ily status of the accused.(2) U the accused has not been apprehended, any

Information necessary to aid In bi.!i al)prehenslonor to warn the pubUc of aoy dangers be maypresent.

(3) A request for assistance In obtainlnl e,·lduct.(4) The identity of the ylctim of the crime.(5) The fael, time, and place of arTf:st, reslslaue,

pursull, and use of weapons.(6) The Identity of investigating and arresting of­

ficers or agenck! and the length of l..be lonsti­galion.

(7) At the time of senure, a description of the p"y"ieal e"idence selled, olber than a confession,admission, or statement.

(8) The nature, substance, or text of Ihe cbarge.(9) Quotations from or references to public records

of the court In the case.(10) The scbeduUnl or result of any step in lbe ju­

dicial proc~jop.

(II) Tbal Ihe accused denies the cbaraes madeagaInst biOI.

(D) During the sel«tion of a jury or the trial of a crim­inal maUer, a lawyer or law firm associated withthe prosecution or defense of a criminal matter shallDol make or participate in making an extra-judicialstatement thai a reasonable person ¥t'ould expectto be disseminated bl means of public communi­cation and thai relates to the trial, partiu, or issuesIn the trial or otber mallt:rs that art: reasonablylikely to Interfere wllh a fair trial, ex«pl lhat bemay quole from or refer without comment to pu~

Iic records of lbt: court In the case.(E) After the complt:tion of a trla.I or disposition wllb­

out trial of a criminal mailer and prior to tbt im­position of stnteoce, a lawyer or law 6rm assodatedwith (he prosecuUon or defense shall nol make orparticlpale In making an eXlrajudicial slatementthai a re.asonable person would expect to be dis­Rminated by public communication and that isreasonably likely to afl"t:ct the imposition of sen­tence.

(F) The foregoing proYislOlU of DR 7-107 also apply toprofessional disciplinary procudings and juveniledisciplinary proceedings wben pertineot and COD·sisteDt with other law applicable to such procettJ.Inll'-

(G) A lawyer or law firm assoclaled wllb a c:IyU actionshall oot during Its InYestigatlon or litigation makeor participate In making an ntrajudJclal statement,olber than a quotatioo from or reference 10 publicrecords, that a reasouble person would expecl 10be disseminated by means of pubUc communicationaDd that relales 10:(1) Evidence regardlnl the occurrence or traosac·

tion inyoh·ed.(2) The character, cndibml1, or aimlnal record of

a party•.witness, or PT05Pective wllness..(3) Tbe performance or results of any examinations

or tests or tbe refusal or fallure of a pari)' 10submil to such.

(4) His opinion as to Ihe merits of the claims or de-­fensu of a party, eKcepl as required by law oradmiolstratln rule.

(5) Any olber matter reasonably Ukely to intmere",ith a fair trial of the action..

(II) Durine the peodt:ncy of an admlnl.stradn procud­ina, a lawyer or law firm associated therewith shannol make or participate In making a statement,other than a quotation (rom or reference 10 publicrecords, Ibat a reasonable person would expect tobe dissemlnaled by means of public communicationif It is made oufsJde lbe official coune or the pro­cudine and relala: to:(1) EvlMnce reprdloe the oceurren« or transac­

tion In,·ohtd.(2) The character, credibilll)', or criminal record of

a parly, witness, or prosp«tive wilness.(3) Physical evidence or the performance or results

of any examlnatlod!l or lests or the refusal orfaiJure of a party to submit to such.

(4) His opinioa as 10 the merits of the claims, •fenses, or positions of an Int~rested person.

(5) Any olber mailer reasonably likely to loterferewilh a fair hearing.

(I) The foregoing provlsions of DR 7-107 do not pre.dude a lawyer (rom replying to cbarees of miscon­duel publicly made against blm or from participal.inc In Ibe proceedlnp of legislative, administnltin,or olher Inyesligatin bodies.

(J) A lawyer shall exercise reasonable care to preventhis employees and aS50Ciates from making an extra.judicial statemenl Ibat he would be prohibited frommaking under DR 7-107.

DR 7-108 Communication with or Invesdption ofJurors.

(A) Before the trial of a case a lawyer conn«ted the~with pall not communicale wltb or cause aoolberto communicate ¥tllh anyone he knows to be amember of Ibe yenlre from whicb the jur')' wW beselected for the trial of the clUie.

(8) During Ihe trial of a case:(I) A lawyer tonnected therewith shall not com­

municate with or cause anotber 10 communicate,,"Ith aoy membe.r of the jury.-

(2) A lawyer ",bo is not conn«led therewith shallnol communlcale with or cause another 10 com­municate "'lib a juror concerning Ibe cast.

(C) DR 7·108 (A) and (8) do nol prohibit a la"yerfrom commuakatinc with vertirtme.n or juron inthe course of oftklaJ proceedlocs-

(D) Afler discharp of Ibe jury (rom further conside......tion of a case with which the lawyer was conn«ted.the lawyer shall not ask qUtitlolU of or make com·ments to a member of Ibnt jury that are calculatedmerely 10 harass or embanass tbe juror or 10 In­fluence his actions in future jury suvice.-

(E) A la", yer sba.U nol conduel or cause, by financb.)support or olberwlse, another to conduel a vexa·tious or harassing Investipdoo of eitbtr a yen.ire-­man or a juror.

(F) AU r~trictioos imposed by DR 7-108 Upoll a lawyeralso apply to communications with or invullgationsof members of a family of a "enireman or a juror.

(C) A lawyer ball reveal promptly to the court Jm­proper conduel by a venireman or • juror, or by aD­othu toward a Ye.o.ireman or • juror or • memberof bls famlJy, of whicb the lawyer has knowledee.

DR 7-109 Contact with Wltoesses.(A) A lawye.r sball 001 .uppnss any evidenct: that be or

bis ciieot has • lept obligation to reveal or pro­du«.,-

(B) A lawyer shall 001 advise or cause a person to se.cnle himse.1l or 10 leave the jurisdiction of a trJ..bunal for tbe purpose of maldoe him unavailableas a wllDess {bueln.'"

(C) A lawyer sball DOt pay, olJer to pay, or acquiesce Inthe paymenl of compensation to • witness contin­gent upon the coale.nl of his testimony or the oul­come of Iht C'&M!.tD But a lawyer rnal adYance, par.antee, or acquiesce In the payment of:(I) Expenses reasonably Incurred by • "Jtness in

auending or teslifyin&o(2) Reasonable compensation to a wllness for his

loss of time In allendJng or testifying.(3) A reasonable fet for Lbe professional services

of an expert wlloess.DR 7·110 Contact with OfIidals.n(A) A lawyer dlaU DOl lin or lend any thin. of ....lue

to a judae, official, or employee or a tribunal.(8) In an adversaJ'}' proceeding. a lawyer shall not com­

municale, or cause anolbt:r 10 communicate, as 10the merits of the cause with a judge or an officialbefore ¥thorn the proceediog is pending, except:(1) In the coune of official proc:eedinas In the cause..(2) In writing II be promptly delivers a ropy of the

¥t'riting to opposing counselor 10 the adverseparty If be is nol represented by a lawyer.

(3) Orally upon adequate nollce 10 opposJne coun·se-I or to the adyUH: party If be is DOt repre-Knled by • lawyer. •

(4) As olberw_ autborlud by law.-~

January 1978/Ar1<ansas Lawyer/51

CODE Of

PROfESSIONAL RESPONSIBILITYCANON 7

A LAWYER SHOULD REPRESENT A CLIENT ZEALOUSLY WITHIN THE BOUNDSOF THE LAW

DISCIPLINARY RULESDR 7·101 Representing a Client Zealously.(A) A lawyer shall 1I0t Intentionally:"

(1) Fail to seek the lawful objectives of bioi clientthrough reasonably lU'alJable meansf' permUtedby law and the Dlsclplina.-y Rules, except asprovided by DR 7·101 (8). A lawyer does DOtviolate this Disciplinary Rule, however, by ac·ceding 10 reasonable requests of Ol)posing coun·sel which do not prejudice the rights of hisclient, by being pundual in fulfilling all profes­sional commitments, by avoiding offensive tac­tics, or by treating with roul'"lesy and considera­tion all persons involved In the legal process.

(2) Fail to carry oul a cOlllracl of employment en­tered inlo with a client for pl"ofessional services,but he may withdraw as permitled under DR2·110, DR 5-102, and DR 5-105.

(3) Prejudice or damage his client during the courseof the professional relationship," ncept as re­quired under DR 1·102 (8).

(B) In his representation of a client, a lawyer may:(1) Where permissible, exercise his professional

judgment to waive or fail to assert a right orposition of his client.

(2) Refuse to aid or participate in conduct that hebelieves to be unlawful, even thou~h there Issome support for an argument that the couduelIs legal.

DR 1·102 Representing a Client Within tbe Bounds ofthe Law.

(A) In his representation of a client, a lawyer shall not:(I) File a suit, assert a position, conduct a defense,

delay a trial, or take other action on behalf orhis client when he knows or when It is obviousthat such action would sene merely to harassor maliciously Injure another."

(2) Knowingly advance II claim or defense that Isunwarranted under existing law, except thathe may advance such claim or defense if It canbe supported by good faith argument for an u·tension, modification, or ret'ersal of nisfing law.

(3) Conceal or knowingly fail to disclose tbat wbicbhe Is required by law to reveal.

(4) Knowingly use perjun:d testimony or false evi­dence.TO

(5) Knowingly make a false statement of law orfact.

(6) Participate in the creation or preservallon orevldenu when he knows or It is obvious tbatthe evidence Is false.

(1) Counselor assist hlJ client In conduct that thelawyer kno,,'S to be illegal or fraudulent.

(8) Knowingly engage In other illegal conduct orconduct contrary to a DlJcipllnary Rule.

(8) A lawyer wbo receives Information clearly estab­lishing that:(1) His client has, In the course of the representa­

tion, perpetrated a fmud upon a person or trib­unal shaH promptly call upon bis client to rec·Ilfy the same, and If his client refuses or Isunable 10 do so, he shall reveal the fraud to theaffected person or tribunal."

(2) A person other than his client has perpetrateda fraud upon a tribunal shall promptly revealthe fraud to the tribunal."

DR '·103 Performing the Duty of Public Prosecutoror Other Government Lawyer."

(A) A public prosecutor or other government lawyershall not Institute or cause to be instituted criminalcharges when he knows or II Is obvious that thecharJ!,es are not supported by probable cause.

(8) A public prosecutor or other government lawyer Incriminal litigation shall make timely disclosure tocounsel (or the defendant, or to the defendant ifbe bas DO counsel, of the emlenct: ot evldenc;e,

5O/Arkansas Lawyer/January 1978

known to the prosec;utor or other loveroment law.yer, that tends to negate tbe guilt of the accused,mitigate the de&tee of the otrense, or reduce thepunlsbment.

DR 7-104 Communicatina With ODe of Adverse In·leresL'·

(A) During the course of his representation of a clienta lawyer sball not:(1) Communicate or cause another to communicate

on the subject of the representation with aparty he knows to be represented by a lawyer10 that maller unless he bas the prior consent ofthe lawyer representing such other part)"'& or isautborlzed by law to do so.

(2) Give advice to a person wbo is not representedby a lawyer, other than the advice to securecounsel.7t if the interests of such person are orhave a reasonable possibility of being in cOn­flict wltb the Interests of his c1lenL'"

DR 7-105 Tbreatenlng Criminal Prosecution.(A) A lawyer shall not present, participate In presentinl,

or threalen to present criminal charaes solely toobtaln an advantage In a civil matter.

DR 7-106 Trial Conduct.(A) A lawyer sball not disregard or advLw: blJ client to

disregard a standing rule of a tribunal or a rulinlof a tribunal made In the course of a proceedlna,but he may take approprlate steps In aood faith totest the validity of such rule or ruUna.

(8) In pre.senllna a matter to a tribunal, a lawyer sballdisclose:'"(1) Legal authority In the controlling jurisdiction

known to him to be directly adverse to the p0­sition of blJ client and which Is Dot dIsclosedby opposing counsel.'"

(2) Unless privileged or irrelevant, the Identilles ofthe clients he represents and of the persons whoemployed him.»

(C) In appearing In bls professional capacity before atribunal, a lawyer shall not:(1) State or allude to any matter that he bas no

reasonable basis to believe Is relevant to thecase or that will not be supported by admissibleevidence.1l

(2) Ask any question that he bas 00 reasonablebaslJ to believe is revelant to the case and thatIs intended to dearade a witness or other per·son."

(3) Assert his personal knowledge of the facts toIssue, except wben testifying as a witness.

(4) Assert bls personal opinion as to the justnessof a cause, as to the credibility of a witness, asto the culpability of a civil litigant, or as tothe guilt or Innocence of an accused;" but bemay araue, on blJ analysis of the evidence, foran)' position or conclusion with respect to thematters stated bereln.

(5) Fail to comply with known local customs orconrtesy or practice of tbe bar or a particulartribunal witbout alvina to opposlna counseltimely notice of his intent Dot to compl,.."

(6) Enaale in undignified or discourteous conductwblcb is dearadlnl to a tribunal.

(1) Intentionally or babitually violate any atabollibed rule of procedure or of evidence.

DR 1-107 Trial Publlclty.-(A) A lawyer particlpatinl In or associated with the I...

vestiption of a criminal mailer shan not make orparticipate In mak.lna aD edraJudlcla1 statementthat a reasonable person would uped to be dis­Iemlnated by means of public commuoic.ation andthat does more than date without elaboration:(1) Informadon contained in a pubUc I"ttord.(2) That the InYesdptlon II In proar6$.

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT LITTLE ROCKNew Faculty Members

Three new faculty members havejoined the University of Arkansas at LittleRock School of Law, increasing the full­time teaching faculty to 15.

Fenton Adams, formerly AssistantDean in charge of the law school when itwas the Little Rock Division of the Uni­versity of Arkansas School of Law atFayetteville, has rejoined the faculty as aProfessor of Law after seven years onthe faCUlty of the University ofMississippi Law School. A native ofReading, Pennsylvania, Adams hasbeen a law teacher for 27 years. Hebegan his career at the DickinsonCollege School of Law at Carlisle, Penn­sylvania, where he received his lawdegree. He was on the faculty of the lit­tle Rock Division from 1965 to 1970, thelast four years as Assistant Dean, beforegoing to the University of Mississippi. Hehas written several articles on the Uni­form Commercial Code for law journals.During the 1976-77 academic year hewas a Visiting Professor of Law at Stet·son University College of Law in St.Petersburg, Florida. Adams' wife, Eloise,works for the University of ArkansasDivision of Continuing Education as aprogram specialist.

L. Lynn Hogue, a 1974 graduate of theDuke University School of Law atDurham, N.C., has been named an As­sistant Professor of Law. From 1974 to1976, Hogue taught public law andgovernment at the University of NorthCarolina at Chapel Hill and counseledand conducted seminars for localgovernment attorneys as part of the UNCInstitute of Government. He was aVisiting Professor of Law at the Univer­sity of Detroit last spring. A native of lit­tle Rock, Hogue was reared at KansasCity. He has a doctorate in English from

the University of Tennessee. He has writ­ten many legal articles, including twoaccepted for publication in the 1977-78academic year by the Case-WesternReserve Law Review and Wake ForestLaw Review. His wife, Carol, is fromKansas City.

Jacqueline S. Wright, a 1973 graduateof the University of Oklahoma LawSchool, has been named Instructor inLaw and is teaching the freshman legalresearch, writing, and advocacy course.She has been in the general practice oflaw at Norman, Oklahoma, and in 1976­77 was law clerk to Associate JusticeJohn A. Fogleman of the Supreme Courtof Arkansas. Mrs. Wright is the formerJacqueline Stucker of Helena and is thewife of Dr. Robert Ross Wright.Donaghey Distinguished Professor ofLaw at the UALR Law School. She has abachelor's degree in journalism from theUA at Fayetteville. The Wrights havethree children.

New. Brtef.Dean Walsh was the speaker for the

Pulaski County Bar Luncheon meetingof October 14. His discussion focusedon the expanded law school program,which now includes a full-time day divi­sion. He also showed color slides of theOld Federal Building, the renovation ofwhich is nearing completion. The Deanis availabte to speak to any local bar in­terested in learning about the develop­ment of legal education at UALR.

From September 27 to October 1,Dean Walsh was part of a four-personteam which inspected the University ofSouth Dakota School of Law on behalf ofthe Accreditation Committee and Coun­cil on Legat Education of the AmericanBar Association. The inspection waspart of the normal reaccreditationprocess, and other members of the teamwere Dean Robert Sullivan of the Uni­versity of Montana School of Law, Pro­fessor Donald Garbrecht. Law Librarianat the University of Maine School of Law,and Robert Dahl, a member of the ABAHouse of Delegates from North Dakota.

A placement panel consisting of IreneBarnes, Elizabeth Brooks, Harley Cox,Louis Epley, Sam Perroni, WoodsonWalker and Steve Watson, presented aprogram on September 26 to inform law

students about their various legalcareers. The program was a great sue·cess and the law school is grateful to allpanelists.

The Law School Committee of theArkansas Bar Association will visit thelaw school on Friday, November 4, andwill be the special guests at a receptionand dinner on the UALR campus thatevening. The committee will visit lawschool classes, and will meet with thefaculty, administration, and members ofthe student body. The membership of thecommittee consists of the eight imme­diate past presidents of the ArkansasBar: Paul B. Young, Henry Woods,James B. Sharp, Robert L. Jones, Jr.,Herschel Friday, Jack Deacon, Robert C.Compton, and James E. West.

The University of Arkansas Law Jour­nal, Volume I, No.1, is scheduled forpUbtication in February, 1978. This firstissue will include the first annual surveyof Arkansas law, which is an overview ofdevelopments in various fields of law inthe state. The student editorial board isas follows: Steve Jones, Editor·in-Ghief;Diane Mackey, Executive Editor; CynthiaDodge, Casenotes Editor; Andree Roaf,Articles Editor; Will Feland, SurveyEditor; Victra Fewell, Research Editor.

Faculty Not.Professor Robert R. Wri9ht has been

elected Chairman of the Governor'sCommission on the Uniform ProbateCode. On October 6 Professor Wrightlectured on "Wills: Execution and Rulesof Construction" at the Southern Con­ference on the Uniform Probate Code,held at Vanderbilt Law School. He alsolectured at the Fall Le9allnstitute held inSeptember on "Probatin9 of Blackacre".

Professor Frederic K. Spies will teachduring the spring semester a course inLaw and Psychiatry to be offered to resi­dents in psychiatry at the University ofArkansas Medical Center and to seniorlaw students at UALR.

The 1977 Cumulative Supplement toProfessor Fred W. Peel's CoMoIId.tedlex Retu,.. is now available. ProfessorPeel spoke on July 15 at the AmericanGas Association-Edison Electric InstituteTax Seminar in Chicago. On July 29 inSt. Louis he participated with Secretaryof Treasury Michael Blumenthal andother Treasury officials in a roundtablediscussion on tax revision proposals.

Professor Robert H. Marquis has re­turned to the School of Law after a one­year leave of absence, during which heserved as a consultant to TVA.

Professor James W. Murphy will be onleave from Spring, 1978 until Summer,1979. He will teach at a law school inCalifornia.~

January 1978IArkansas Lawyer/48

lAW SCHOOL NEWS

Assistant Dean James K. MillerAssociate Dean Susan Webber

•

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE

NEW FACULTY MEMBERS. UNIVERSITY OF ARKANSAS, SCHOOL OF LAW, FAVETTEVIUE19n-78 _ng - (....ft to Right) - Tom RobIr-., Molt Horon, _.p_, .10.. Chip­m.., Bob F._ka. _eel-(....ft to Right) - Bob SterlIng, K...-.Linde 8_8iIR_.

A Careers Seminar, sponsored by theYoung Lawyer's Section of the Ar1<ansasBar, the Student JUdicial SeminarSeries, and Phi Alpha Delta Law Frater­nity, was held at Law School on October14. The objective of the program was toprovide law students with career in­formation from young lawyers who havebeen involved in various aspects of thepractice of law. Speakers were JamesM. Dunn of Fort Smith, Susan McCainand Tom Overbey of Little Rock andWilliam Reed of England. Harry TrumanMoore of Paragou Id was programcoordinator for the YLS, and Lee Hinson,Chairman of the Student Judicial Semi­nar Series. served as moderator.

Dean Wylie Davis addressed theSebastian County Bar Association onOctober 3. On October 6-8, he chaired ameeting of the Multistate Bar ExamCommittee on Contracts, held at St.Louis. In July and August, 1977, DeanDavis taught Admiralty at the Universityof Georgia School of Law.

Dr. Robert A. Leflar addressed an Ap­pellate Court Administration seminarheld at San Francisco on October 24.The seminar was presented by the In­stitute for Court Management.

On October 20, Phi Alpha Delta LawFraternity's Professional Activities Com­mittee sponsored a program concerningthe Federal Bureau of Investigation.Guest speaker was Henry Tuck, specialagent and legal advisor to the Ar1<ansasRegional Office of the FBI.

Professor Morton Gitelman was aspeaker at an October 20 program spon­sored by the University of Ar1<ansasChapter of the American Association ofUniversity Professors. The subject of theprogram was "The Potential LegalLiability of Professors."

Professor Howard Brill participated ina conference sponsored by the Centerfor Law and Religious Freedom and theChristian Legal Society September 8-11in Colorado Springs. Conference topicsincluded the First Amendment andCurrent Problems in Church-StateRelations.

48/Ar1<ansas Lawyer/January 1978

L

Black American Law Student Associa­tion officers for 1977-78 are Wendell Grif­fin of Delight, President; Ar1<ie Byrd ofLittle Rock, Vice President; GladysMarie Wilson of Jonesboro, Secretaryand Wardell Henley of Fort Smith,Treasurer.

New faCUlty members for 1977-78 in­clude Linda B. Brown, Matthew Horan,and William J. Rands, legal writing lec­turers, and Karen Stitsworth, assistantlibrarian.

Ms. Brown received her B.A. degreefrom Tulsa University; an M.A. degreefrom the University of Nebraska; her J.D.degree from the University of Tulsa LawSchool, and an LL.M. from ColumbiaUniversity. To receive her LL.M., shecompleted a major research project onthe role and function of the U.S.Supreme Court in constitutional cases.

Mr. Horan received his B.A. degreefrom the University of Ar1<ansas at Fayet­teville in 1973. He received his J.D.

degree from Harvard University in 1976.While an undergraduate, he edited theGrapevine, a weekly off-campusnewspaper, and Preview, a literarymagazine. He was recently named an"Outstanding Young Man of America."He has been admitted to the Ar1<ansasBar.

Ms. Stitsworth received her B.S.E.degree from the University of Ar1<ansasat Fayetteville, where she was an honorsgraduate and a member of Kappa DeltaPi, honorary educational fraternity. Shereceived her J.D. degree from the UAFSchool of Law in 1977. She was recentlyadmitted to the Ar1<ansas Bar.

Mr. Rands received his B.A. degreefrom Centenary College, and receivedhis J.D. degree from Tulane UniversitySchool of Law in 1973. At Tulane, he wasAssistant Editor of the Law Review andwas a member of the Order of the Coif.He was most recently associated withthe New Orleans law firm of Hurley,McNulty and Stakelum.

case be placed on the argument calen­dar.

Cases are screened no-argument if:(1) the appeal is frivolous;(2) the appeal is clearly meritorious;(3) the dispositive issue or set 0; issueshas recently been authoritativelydecided; or(4) the facts are simple, and the determi­nation of the appeal rests on the applica­tion of settled ru les of law.

A few stati51ics may help you under­stand the impact of this no-argumentprocedure on our ability to keep currentEach active judge now sits from 32 to 35days per year, spends 7 to 10 weeks pre­paring oral arguments, serves as leadjUdge on an administrative panel for 6weeks. and sits occasionally as a Dis­trict Judge. This leaves him with at most25 weeks a year to prepare 70 to eo writ­ten opinions and to concur or dissent in150 to 160 additional opinions. If each ofthe 276 no-argument appeals wereargued, each judge would either have tosit an additional 4 weeks a year, leavinghim only 21 weeks to prepare opinions,or in the alternative, parties would befaced with an additional 5 month delayfrom the time their case is fully briefeduntil it is finally submitted. In ouropinion, neither alternative is viable.

We are convinced that there is no in­justice in disposing of certain caseswithout oral argument. I might add thatwe liberally grant motions to permit oralargument where either parry objects tothe no-argument disposition.

The second step we have taken tomore effectively manage our case loadis 10 adopt various procedures to expe­dite the submission of appeals. Thesteps taken include:

(1) The appointment of Wayne Buck­ner as Appeals Expediter. His job is tofollow (Nary appeal from the time it isfiled to the time it is submitted for dis­position by a hearing panel. He is in­structed to contact attorneys in all crimi­nal cases, and most civil cases, imme­diately after filing of notice of appeal andto arrange a briefing schedule withthem. He is also instructed to work withthe court reporters and clerks of the Dis­trict Courts to insure that transcripts andappendices are prepared promplly.

(2) In addition, we have adopted a planfor eXpediting appeals of criminal casestaking three days or less to try - a planthat is unique to this Circuit. Over 75% ofthe criminal cases tried at the DistrictCourt level fall into this category. Underthis plan, the clerk of the District Courtmust order a transcript within 24 hoursafter the notice of appeal is filed. Thistranscript must be filed with our Courtwithin 20 days of that date. Appellant'sbrief is due 28 days after the date therecord is filed with this Court. Appellee'sbrief is due 21 days later. Extensions

from this schedule are granted only un­der the most unusual circumstances.These criminal cases are screened ini­tially by our senior Staff Law Clerk, inaccordance with the procedures outlin­ed above.

(3) We affirm certain cases by order.This is done to save the time it wou Idotherwise take to write an opinion. How­ever, we affirm by order only in a limitednumber of cases. If we determine thatone or more of the following circum­stances exists and is dispositive of thecase, and that an opinion would have noprecedential value, we enter an orderpursuant to our Local Rule 14. Amongthe circumstances justifying an affirm­ance by order are: (a) the judgment ofthe District Court is based on findings offacl which are not clearly erroneous; (b)the evidence in support of the jury ver­dict is not insufficient: (c) the order of anadministrative agency is supported bysubstantial evidence on the record as awhole; and (d) no error of law appears.

(4) Finally, we realize that a delayeddecision on appeal may seriously affectcertain litigants. For this reason, we doexpedite the argument and disposition ofcertain appeals at the parties' requestupon good cause shown.

These are the steps we have taken inrecent years to cope with our growingcaseload. Even with these procedureswe are concerned about our ability to re­main current in the near future. The Judi­cial Council at its last meetingauthorized a program of preargumentsettlement conferences. I am sure all ofyou are aware that this procedure isused frequently in federal and statecourts throughout the Nation. Indeed,

continued from page 36yers, was guest speaker at the KansasCity Bar Association's installation of offi­cers. Beryl Anthonr, EI Dorado, wasspeaker at a meeting of the South Arkan­sas Development Council. Will.... Brl­zll, Conway, attended a personal injurycourse held at Hastings in which instruc­tors included SId McMlllh, E'-lJ_ T,!lor, H....ry Wood', and WIno_ Drum­mOllel. At a recent Lions Club meeting,Johll Belew, Batesville, was guestspeaker. PhJtll. JohllOOll, Mountain

many of you may have participated insuch conferences.

Senior Judge Charies Matthes hasagreed to undertake the program for theEighth Circuit. He will begin with diver­sity cases where a money judgment hasbeen granted. We anticipate that the ap­pellant's attorney will be required to filewith the notice of appeal, or shortlythereafter, a docketing statement, whichwill include a statement of issues. Theappellee's attorney will then file aresponse to appellant's statement.Before briefs are filed, attorneys for allparties, and in some cases the partiesthemselves, will be asked to attend aconference conducted by Judge Mat­thes. At that conference, the parties willdiscuss the possibility of settlement. Ifsettlement is not possible, the attorneyswill be asked to attempt to narrow theissues, and to eliminate portions of therecord which need not be considered bythe Court on appeal. All discussions willbe completely confidential; participation,at least initially, will be voluntary; andthe Senior Circuit Judge will notcommunicate any of his knOWledge ofthe case to the hearing panel, should hissettlement attempts fail. We welcomeany suggestions which you might haveon the format of this program.

In closing, I want to assure you that,while we have made a firm commitmentto keep current with our caseload, wehave a much deeper commitment todecide cases fairly, and with the fullamount of attention necessary to do so.We seek your cooperation in helping usfulfill both commitments.~

Home, spoI<e to a youth group at theFirst United Methodi51 Church at a func­tion called the "Fifth Quarter" which fol­lowed a local football game. CrawfordCounty Bar Assn. has elected new offi­cers: Cart K. Creekmore, Jr., President;Robert Marquette, Vice-President; andSteven G. Peer, Sec.-Treasurer. JohnPittman, West Helena, received a certifi­cate of appreciation from the ArkansasJudicial Council for his work in arrang­ing its conference in October. Goyte K.Ford, Mount Ida, was honored by theOuachita Regional Counseling andMental Health Center. Judge Ted P.eo...y, Berryville; Judge Wlllllm H, En­flekf, Bentonville: and Gary Kennan,Bentonville, were panelists at a programsponsored by the Berryville Businessand Professional Womens Club.~

January 1978/Arkansas Lawyer/47

~

1111 JURIS DICTUMby C. R. Huie

Executive Secretary, Judicial Department

Recently Judge Gerald W. Heeney of the U.S. Court of Appeals for the Eighth Circuit /Idd,...eed the EighthCircuit Judicia' Conference on the subject of appeals proce•• and certain timely datldlc. effecting ap­peals In thl. Jurl8dlctlon. Knowing the readers' Interest In such matters, we are publl.hlng Judge Heaney'sremarlc. In this Juris Dictum.

U.S. COURT OF APPEALS FOR THE EIGHTH CIRCUITby: The Honorable Gerald W. Heaney

U.S. Circuit Juclge

When I came on the bench ten yearsago, this Court had eight active judges.In that year 405 appeals were docketed,85 of those were criminal cases, 320were civil. Although we have the samenumber of judges today, 1,125 appealswere docketed this year. Of these, 255were criminal cases. Even with this al­most three-fold increase in the numberof appeals, we remain current. We willend this year with less than 500 pendingcases, a figure that is lower by percent­age and by number of pending cases perjudge than any other Circuit. We areamong the lowest Circuits in terms ofcases pending 90 days after argumentand submission. In fiscal 1976, only 12cases were stili pending 90 days aftersubmission and of these only one casewas more than a year old. Finally, ouroral argument calendar is current; bythat I mean cases that are fully briefedare promptly scheduled for oral argu­ment. We fully expect the upward trendin filings to continue, and estimate that1,200 cases will be docketed next year,and approximately 1,500 by 1980.

The Senate has passed a bill creating148 new judgeships. Nine of these aredistrict judgeships within the Eighth Cir·cuit: 2 for the Eastern Di51rict of Arkan­sas; 1 for the Southern Di51rict of Iowa; 1for the Eastern District of Missouri; 2 forthe Western District of Missouri; 1 for theDistrict of South Dakota; and 1 perma­nent and 1 temporary judgeship for theDistrict of Minnesota. The bill approvedby a subcommitee of the House Judi­ciary Committee would add 1 judge inthe Eastern District of Arkansas, 1 in theWestern District of Missouri, and 1permanent judge in the District ofMinnesota. It would add no judges in theSouthern District of Iowa. Hopefully, newjudges will be appointed to fill these pos·

48/Arkansas Lawyer/January 1978

itions before January 1, 1978. Oncethese positions are filled, our caseload islikely to increase still further as appealsfrom decisions of these new judgesreach our Court. While the bill passed bythe Senate creates one new judgeshipfor the Eighth Circuit. the House billdoes not. Even if the Senate bill passes,and another judge is added to our Cir·cuit, that alone will not enable us to keepup with our increasing caseload. There­fore, we must continue to experimentwith new methods for expeditiously andefficiently disposing of appeals withoutsacrificing the quality of our decisionmaking.

I would like, now, to outline several51eps we have adopted for handling ap­peals, -and other measures we are con­sidering for the future. The first and mo51important of those is our screening pr<rcedure.

In 1976, we disposed of 1001 appeals.We could not have done 90 without ourprocedure for screening certain casesfor disposition without oral argument.We decided 276 or 28% of the casesfiled without oral argument 66 of thesewere direct criminal appeals, 116 werepost-conviction appeals, 21 were civilappeals where the United States was aparty, 9 were civil appeals where an ad­mini51rative agency was a party, 46 wereprivate civil appeals, and 18 were origi­nal actions. Of the 276 appeals disposedof without oral argument 25 were re­versed. We first implemented a formalscreening procedure in 1970, creatingthree classifications of cases: those al­lowed 3) minutes oral argument perside, those allowed 15 minutes, andthose allowed no oral argument. Before1976, all screening was done by thejudges. In an effort to free judicial timefor case work, we adopted a new screen·

ing procedure in 1976. A judge now par·ticipates in the screening process onlyafter an initial decision is made that thecase be screened for no argument. Oncethis initial no argument decision ismade, three judges must then agree thatthe case is suitable for disposition with­out oral argument, before argument is fi­nally denied.

But this is only an overvi8'wY of our cur­rent screening procedures. Let me ex­plain them in greater detail. Our Clerk ofCourt, Bob Tucker, an able and experi­enced lawyer and administrator, per­forms the initial screening of all civilcases and of criminal cases where trialtook more than 3 days to complete. TheSenior Staff Law Clerk, a career lawclerk, permanently based at theCourt's headquarters in St. Louis, per­forms the initial screening of criminalcases where the trial took 3 days or less.A case may be screened for 20 or 3lminutes argument per side, or for di~

position without oral argument. If a caseis screened for argument, it is placed onthe earliest possible calendar. A hearingpanel of judges may remove a case fromthe argument calendar by unanimousaction.

If a case is initially screened for no­argument disposition, it is forwardedimmediately to one of the judges for hisapproval of the no-argument designa­tion. If he does not concur, he informsthe Clerk, who places the case on theearliest possible calendar. If he concurs,he informs the Clerk, who in turn informsthe parties of the no-argument classifi­cation. The Judge who concurs with theno-argument classification is then re­sponsible for preparing an opinion andforwarding it to the two other judges onthe screening panel for their concur·rence. Either judge may ask that the

The First Annual Arkansas Bar Foundation Legal Essay Competition willbegin November 15, 19n, and awards for the winning essays will be presentedby the Arkansas Bar Foundation at the annual Bar Foundation meeting in Juneof 1978.

All entries must be in the hands of the Bar Foundation at the Law Center inLittle Rock no later than April 15, 1978.

The competition is open to all persons who submit an essay in proper form.The essay should be in proper form for publication either in The Arkansas Law­yer or the Arkansas Law Review. There is no maximum or minimum number ofwords or pages. The styfe and form shall be lett to the individual authors.

The topic for the essay for the year 19n-78 shall be "Should Ark.... HawSep.rate Clreu" and ChancelY Court.". A cash award of $150, plus a certifi­cate of merit will be awarded to the best paper written for the pro side of thequestion, as well as the best paper written for the opposite or con side.

All entries must be mailed to the Arkansas Law Center, 400 West MarkhamStreet, Little Rock, Arkansas 72201, so that they are in the hands of the BarFoundation no later than April 15, 1978. Each entry should be accompanied bya cover letter giving the name, address, telephone number and occupation ofthe entrant. All papers submitted shall become the property of the ArkansasBar Foundation and manuscripts will not be returned. The winners will be noti­lied in writing by the Foundation and will receive their awards at Hot Springs atthe annual Bar Foundation Convention.

Persons from all walks of life are urged to enter the competition and submitessays on this most topical question concerning our entire system of justice inArkansas. Whether you are a lawyer, teacher, law student, newspaper writer,housewife or businessman, please submit your entries so that we can have abroad scope of opinions from across the state.

Dan M. BurgeMaurice CatheyJames T. DykeHerschel H. FridayCharles R. GarnerJohn P. GillOren HarrisBill R. HollowayJack Holt, Jr.Gaines N. HoustonClint HueyRandall W. IshmaelBoyce R. LovePat MehaffyN. Dale PriceLouis RosenE. L. SchiefflerJ. L. ShaverDouglas O. Smith, Jr.Berl S. SmithWilliam J. SmithNeva B. TalleyC. R. Warner, Jr.Richard A. Williams

Edwerd L. WrightSCholerehip Fund

The law firm of McMath, Leather­man & Woods, P.A. has started ascholarship fund in honor of the lateEdward L. Wright with a contributionof $250 to the Arkansas Bar Founda­tion. William R. Wilson has added acontribution of $143. All contribu­tions of the Foundation in Mr.Wright's memory are being coveredinto this scholarship fund. The goalis $5000. This will set up perpetualscholarships in the Foundation'sscholarship program for the LawSchool at Fayetteville and LittleRock. Contributions to the EdwardL. Wright Scholarship Fund shouldbe made to the Arkansas BarFoundation, 400 West Markham, lit­tle Rock, Arkansas 72201.

Additional contributors are:William S. ArnoldMaurice CatheyDavidson, Plastiras & Horne, Ltd.Oscar FendlerJohn A. FoglemanRuth LindseyDonald W. McKayDick Moore, Jr.Louis L. Ramsay, Jr.U. M. RoseLouis RosenJames B. SharpJ. L. ShaverJohn Mac SmithDavid Solomon

N_ Fellow.section 3, Article II of the Founda­tion's By-Laws provides:

"The Board of Directors of the Ar­kansas Bar Foundation maydesignate as a Fellow of theFoundation any person who hascontributed outstanding service tothe Arkansas Bar Foundation andany Fellow so designated shall haveall the rights and privileges of mem­bership."

One required service is the contri­bution of $1000 to the Foundation.Fellows are recognized by a parch­ment certificate, by membership inthe Foundation, and by their pic­tures in the Hall of Fellows at theArkansas Bar Center. In the October1977 issue of The Artlen... Lewyer,we published a list of the Fellows.Since then, the following have beenso designated:Julius C. AcchioneEdgar E. BethellDouglas Bradley

W. Dane ClayOliver M. CleggJohn N. HarkeyWilliam H. HodgeKaneaster Hodges, Jr.F. J. Howell, Jr.Edwin B. KeithHarold L. KingFrank LadyFred LivingstonArthur R. MacomRichard L. MartinJames W. MooreFred MacDonaldJames A. McLarty, IIIRichard A. ReidAlex G. SandersonDon M. SchnipperGriffin SmithCecil A. Tedder, Jr.Walls TrimbleWilliam R. Wilson

"ARKANSAS BAR

FOUNDATIONLEGAL ESSAY

CONTEST

January 1978/Arkansas Lawyer/45

ARKANSASBAR fOUNDATION

by John P. GillChairman

WHAT HAS THE ARKANSAS BAR FOUNDATIONDONE FOR YOU LATELY?

In pursuit of the Foundation'sgoals of improving jurisprudence,many Foundation programs are un­derway.

Legal Writing"Old" lawyers will fondly remem­

ber Fayetteville in the Fall with foot­ball games and legal seminars.Take heart - it's coming backagain. Don't miss the:

SCRIVENERS' SYMPOSIUMWATERMAN HALL

November 18, 1977, 1:00 p.m.

HOMECOMINGARKANSAS v. SMU

The program for this seminar isabsolutely outstanding. Mr. JusticeGeorge Rose Smith, Arkansas' fore­most authority on brief-writing, willbe the first speaker. He will bejoined by one of the most accom­plished masters of the English lan­guage, Chancellor Tom F. Butt ofFayetteville, and three distinguishedmembers of the Fayetteville lawfaculty: W. David Newbern, MiltonCopeland and Richard B. Atkinson.

Other than oral advocacy, the law­yer's traditional expertise is legalwriting. One purpose of the Arkan­sas Bar Foundation is to encouragelegal writing and cause the publica­tion of literary works on legal su t>­jects. Since good legal writing is a"bread and butter" subject for Ar­kansas lawyers, no lawyer shouldmiss this legal writing seminarwhich is designed to encouragelawyers to write better briefs and Ie-

oW/Arkansas Lawyer/January 1978

gal documents, as well as articlesfor publication.

And all of this is free. It is pre­sented as a token of appreciation toArkansas lawyers who have contrit>­uted so generously to the work ofthe Arkansas Bar Foundation.

Courtroom Standard.A very capable committee of at­

torneys and judges who have hadactual experience in remodelingcourtrooms will be led by SandyHendrick in developing one of themost important projects for Arkan­sas jurisprudence ever undertaken,namely the development of mini­mum courtroom standards. In thenear future, this committee willmake its report on minimum stan­dards for Arkansas courtroomswhich will cover everylhing fromchalk availability to decent juryrooms. Once these standards havebeen developed, every local bar as­sociation in the state, and indeedevery local lawyer, will be able toevaluate local courtroom facilitiesand more importantly have a stan­dard by which local governmentscan make improvements to the jus­tice system.

$150 Writing Award.The Foundation's first awards for

writing about the law will be pre­sented at the close of this Bar year.A significant feature of this award isthat it is open to all persons, lawyersand laymen alike, in an effort tostimulate interest in the law and en-

courage the publication of good arti­cles about the law.

Public Awareness of the LawElsewhere in this issue is a handy

idea: "Slick" copies of articles pre­pared by the Foundation's Public In­formation Committee that may becut out for publication in local news­papers. All the lawyer has to do iscut out and deliver to the paper. TheFoundation and your local news­paper do the rest.

What Have You Done LatelyFor The

Arkan... Bar FoundationEach Arkansas lawyer will re­

ceive, shortly, a memorial card toplace in his desk. At Christmas, oron the death of a lawyer, or anyother time you feel like making a giftto a lawyer or to his memory, pUllout the memorial card, attach acheck and mail it to the Foundation.This is only one of a dozen ways inwhich you may provide money tothe Foundation to continue its workfor jurisprudence and the legal pro­fession.

New Sustaining MembersSection 4, Article II, Foundation's

By-Laws states that "Foundationmembers are eligible for SustainingMembership upon contribution of atleast $50 per year." Each is recog­nized by a certificate and a card. Inthe October 1977 issue of The Ar­kan... Lawyer, we published a listof Sustaining Members. Since then,the following have joined this distin­guished group: -

Clay. the new Arkansas Wills &Trusts System is going to be a greatpublication! The Colonel concurs.

ARKANSAS

WILLs &

TRUSTS

SYSTEM

CtiVAS

Richard, the Midyear Meeting will bethe perfect forum for discussing thenew System! The Arkansas BarAssociation has another winner!!!

MIDYEAR MEETING

JANUARY 19-20, 1978

CAMELOT INN, LITTLE ROCK

ESTATE PLANNING INSTITUTE

ARKANSAS WILLS & TRUSTS SYSTEM

(Third in a series of System-Orientated presentations following theCorporation System and the Probate System.)

January 1978/Arkansas Lawyer/43

Copyright Update. , .,continued from page 41

original creations, and the creator 01 thewor1< will retain the copyright unlessthere is an express transfer of thecopyright interest.' This has the ad­vantage of making it more difficult lor ar­tists to selt possibly valuable rights lor apittance, but also presents potentialproblems in ascertaining the authorshipof a discovered wor1< of art in order thatthe copyright ownership can be deter­mined.

Also in the way of protection for crea­tors of wor1<s of art is the modification ofthe "made for hire" provisions 01 thecopyright law. The basic principle thatan employer is regarded as the author 01a wor1< and will have ownership of thecopyright is retained. However, there arerestrictions in the new law as to whenthe "made lor hire" principle wilt apply.The act provides a wor1< is "made lorhire" when the wor1< is "prepared by anemployee within the scope of his or heremployment" or "specificalty ordered orcommissioned", '0 The law obviously in­tends that publishers may not acquirecopyright Interests on the "made forhire" principle simply by stating in acontract with a writer that the contract Isan employment contract and that allwor1<s he creates wilt be "made for hire".It remains to be seen if these provisionswill represent an insurmountable obsta­cle for the publishing companies' in­genious attorneys.

If these attempts at protecting thecreative artist against his usual lack ofsharp business judgement are suc­cessful, they will be a substantial con­tribution to greater equity and justice inthe copyright field,

renn 01 eop"lghlBy now the reader has probably

thought to question whether the old term01 copyr:ght lor 28 years with another 28years renewal has been changed by thenew law. Would that he hadn't. The at>­surd complication of the new law 85

respects the term of copyright seemsgrossly unnecessary. It must suffice ,tosay that there are different terms forworks created on or after January 1,1978, and those created before; also fordeceased authors, unpublished wor1<sand for pseudonymous and "for hire"

. wor1<s. It really is a mess.Briefly, and somewhat oversimply, for

wor1<s first created alter 1977 the term ofcopyright will be the life of the authorplus 50 years, owners 01 existing statu­tory copyrights will get an extra 19 years,and the worst case for existing commonlaw copyright, assuming it later ispublished by the author, would be an ex­piration of December 31, 2027.Conclualon

Perhaps this would be a thought toclose on. If there is an area 01 the law inwhich you feel that you are somewhat ofa specialist, Heaven forbid that Con­gress should take it upon itself to"relorm" the law, or if they do, may they

take forever to do it. More seriously, thenew copyright act gives promise 01being one of the better concoctions ourlawmakers have bestowed on us. Morethan a little credit is due our esteemedSenator McClellan lor plowing a straight(and long) furrow in this endeavor.

1. "Some Intelligence on IntelleclUai Property", AIbnMI~, July 1974,~ 120.

2. CopyrIght Act of 1918;1102. IubIect INtW 011 copyrtghI: In ...,..

(8) Copyright protection IU~ in IICCOl'dance w1tt1ItlIs btllt, In original wortul oI.uthonltlip fbIed WI."~bill medium of expreaslon. rw:NI known 0( .... dlMttopId.from which !hey can ba pl!lroIiYed, reprocIuoecI. or CJChw­WI" communicaled. ..!her direclty or Wilt! m. eid 01 emeet.. Of dlMc:e. WOl1ts 01 eutl'lorttlip lndude ..IoIlowino~

(1) '"--Y WOIb:(2) muMcaJ 'M)rka, including any axompenylng worda;(3) dreme,ic works. Including eny eccompeny

music;(4) pentommes end choreographic work.:(5) p1c1orial. graphic:. lind aculptutal work.:..,) motlon pictu~ lind othIIr~'M)rk~ enden IOlJnd teCCIrdingI.(b) In no c::-. does~ proteetion tor WI ongmal

work 01 eultuship ..~ 10 any ~ proc:eduN.~ aysum. IMltlod 01 opemion, concIIJIt. princlpIe.Of dieco¥wy.~ 01 the Iorm In \IlltIich it iiidescribed,~ -'-led., Of embodied in IUCh......

3. 17 U.s.C. "074. 17 USC. lUllS. 11 US.C. 11106. 17 U.s.C. 11111, 115. 116, 1187. 17 U.s.C. "'05. 406It 17 USC WOlS(lI)9. 11 U.s.C 120'2

10. 11 USC 1101

Wor1<ers' Compensation InstituteCamelot Inn, Little Rock

March 24-25, 1978

Labor Law seminarCamelot Inn, Little Rock

March 16-17, 1978

The typewriter of the Ar1<ansas Bar Foundation is readylor the "scrap heap". It has been suggested that an Ar­kansas lawyer or law firm, having switched to a newerword-processing system, may have an IBM Selectrictypewriter in good condition to give the foundation. Weuse various letter ball-heads for the IBM lIeIeclrlc. Such agilt would be tax-Iree, etc. Kindly contact the Ar1<ansasBar Foundation, 400 West Mar1<ham, Little Rock, Ar1<an­sas 72201. Tel. No. 37~.

ARKANSASBAR

ASSOCIATION

Midyear MeetingCamelot Inn, Little Rock

January 19-20, 1978

Annual MeetingArlington Hotel, Hot Springs

June 7.13, 1978

Fall Legal InstituteCamelot Inn, Little RockSeptember 14·15, 1978

~~~~~~~~N~:a:tural Resources Law Institute(formerly Oil & Gas Institute)Artington Hotel, Hot Springs

February 23-25, 1978

(

~o

~

G/Ar1<ensas Lawyer/January 1978

instate his right as to such pertormancesby written objection.), (5) backgroundmusic in a public place taken from asingle radio receiver, (6) pertormance ofmusical wor1<s at non-profit agriculturalfairs, (7) perlormances in connectionwith promoting sales of sheet music orphonorecords, (8) certain transmissionof pertormances for handicapped per­sons.S

There are other detailed modificationsin respect to cable television, licensesfor production of phonorecords, royaltyfor jukeboxes, and public broadcasting.In general, a compulsory licensing ap­proach on either a statutory fee or ar­bitrated fee basis is prescribed for theseareas.6Procedu...

Under the previous law, tM lingle_ Import..t matter In obtainingcopyright protection waa to place anapproprlata copyright notlce on tMwork indicating an intent to claim copy·right. This has not changed under thenew law. The old law together with itsjudicial interpretation contained some ofthe most hypertechnical requirementsand awesome pitfalls that one would ex­pect to find in any area of the law. Im­proper placement of the copyright noticein a book or on a map or an error in thenotice itself might result in total loss ofall copyright protection. Furthermore,the publication or distribution of wor1<swithout any copyright notice was almostsurely fatal even though the number ofwor1<s SO distributed was relatively small.

The new law seeks substantially toreduce the hazards to the author orpublisher where there is slight impr....cision in carrying out the notice reqUire­ments of the law. The location of thenotice will be deemed acceptable if it iscalculated to give reasonable notice.Even the omission of notice from a sub­stantial number of copies can becorrected in most cases under the newlaw.7 The new law, however, requires thedate in the notice for all types of wor1<s,

whereas certain types of wor1<s did notrequire a date under the 1909 act.

Regardless of the more lenient at­titude of the new law, .uthera Iilouldatlll be lIlIvlaad to mark tM copyrightnotice on thalr work .a tM moat Impor­tant atap In tM copyright protllCtlonprocedure. There is no assurance thatthe administration of the new law will beas lenient as it appears that it should be,and in any case the new law does notexcuse an intentional omission of copy­right notice.

In regard to filing an application forregistration of copyright, the changes ofthe new law are relatively minor. Themost important change is the fact thatregistration is permitted, and in fact willbe reqUired, for protection of rights inunpublished works which were previous­ly protected under common law copy­right. see the discussion below underCommon Law Copyright.RamlIlIIea

The remedies under the Copyright Acthave always been relatively effective,compared for example with remediesunder the patent statutes. While thereare small and important changes in theremedies available to the copyrightowner, his favorable position is largelypreserved.

The new law does make registrationwithin 3 months of publication arequisite to preserve certain supplemen­tal remedies such as statutory damagesand attorneys' fees.eornn- Law Copyright

0 ... of tM _Important changes Inthe new law la tM _tanaIon ofatatutory copyright to coyar un­pub..- worka 01 all aorta. Previously,unpublished wor1<s covered by commonlaw copyright were only copyrightable ina limited area, chiefly musical composi­tions.

Henceforth, even if a work is notpublished by the author, he will not beable to proceed against an infringer in astate court action for infringement of

common law copyright Instead he mustprotect his rights by filing an applicationfor registration of his unpublished wor1<."The area of federal preemption is thusgreatly expanded. This federal registra­tion need not be obtained prior to an in­fringement, but if it is not obtained priorto an infringement. the author loses hissupplemental remedies of statutorydamages and attorneys' fees.

While it cannot be determined in ad­vance how this substantial changebringing unpublished wor1<s under statu­tory copyright will wor1< out in practice, itwould seem to have promise of im­proved justice and efficiency. Certainly,advising clients will be much simplerwhen you do not have to explain to themthat there is no way that they can protecttheir book or poem under the copyrightlaw without first publishing it. Clientssimply could not understand that an un­published wor1< was not copyrightable.Perhaps they knew what the law shouldbe all along, and it was only theCongress, the Bar, and the Courts thatwere slow in working it outRights 01 Attl8la

In several aspects the new lawenlarges the rights of the actual creatorof artistic works. One such enlargementrepresents a radical change in theexisting law. (This change was perhapsforeshadowed by a similar provision inthe law of California respecting commonlaw copyrights.) Traditionally, when thecreator of an artistic work, especially apainting, sculpture or similar work, soldthe original creation and there was noexpress provision regarding the owner­ship of the copyright, the ownership ofthe copyright lollowed the ownership ofthe actual creation.

As might be expected, artists not infre­quently found that they had transferredfor a small sum a copyright Interestwhich turned out to be quite valuable.The new law diametrically reverses thepresumption with respect to transfer of

continued on page 42

Robert R. Keegan attended Oklahoma State University and OklahomaUniversity Law School before moving to New York City where he graduatedfrom New York University Law School in 1957. For the next sixteen years hepracticed law in the patent and trademark specialties with a long establish­ed patent law finm in New York City. In 1973 he resigned as a partner of thatfinm to establish a practice in Fayetteville and was admitted to the ArkansasBar in November 1973. He is a member of the State and Federal Bars ofArkansas and New York, the First, Second, Eighth and Tenth CircuitsCourts of Appeal, the Court of Customs and Patent Appeals, the U.S. PatentOffice, the Court of Claims and the U.S. Supreme Court. He taught a coursein Patents and Copyrights at the University of Arkansas School of Law(Fayetteville) in the Fall of 1974 and presented a program on that subject tothe Fall Legal Institute at Fayetteville in 1975.

January 1978/Ar1<ansas Lawyer/41

COPYRIGHT UPDATEby Robert R. Keegan·

It Your Copyright Knowledge Is Minimal,Don't Worry, It Is Probably Superceded

We will have a new and substantiallydifferent copyright law on January 1,1978. Affempts at general revision of thecopyright law or the patent law charac­teristically meet with great difficulty dueto the complexity of the subject mafferand the many diverse interests affected.

While affempts at general revision ofthe patent law have bogged down overthe last dozen years or SO, the copyrightlaw revision has forged, or at least plod­ded, ahead. It became an accomplishedfact in 1976 and for the most part willbecome .lMct... January 1, 1978. Thelaw being replaced is of vintage 1909.The big song hit copyrighted in 1909 was"Put on Your Old Gray Bonnet (With the

Blue Ribbons On It)". Surely everyoneremembers that one.

It was thought that some highlights ofthe changes in the copyright law wouldbe of interest to Arkansas lawyers. Nodoubt the Arkansas general practitionerdoes not need or want to know all aboutthe copyright law, but hopefully he hassome basic concepts of what copyrightis about and would be interested inknowing if these basic concepts are stillvalid.

Perhaps some readers will even havegained information about copyright froma previous article in these pages by thiswriter'. Since only some basic preceptsof copyright were mentioned there, itwould be a good starting place to know

•Copyright C 19n Robert R. Keegan

4O/Arkansas Lawyer/January 1978

how the changes in the law will affectthose precepts.Subject. 01 Copyright Prolection

First of all, let us consider thosethings, "works", which may be the sub­ject of copyright protection. The term"communication media" taken in itsbroadest sense might be a fair descrip­tion of the primary thrust of copyrightprotection. Put in another way, whatevermight be construed to be a "writing" un­der the U.S. Constitution, Article 1, para­graph 8 is a potential subject for copy­right. Not only is the written word pro­tectable by copyright but also pictorialand graphic maffer of just about anydescription. In addition to hand-drawnpictorial maffer, photographs are alsoprotectable. As an extension of that.moving pictures and video tapes Bre pro­tectable as are sound recordings.

SCUlptures are also protectable undercopyright. An observant reader mayhave noted that in many cases protec­tion is granted where the artistic merit isquestionable. The above is by no meansa complete list of the nature of thingscopyrightable, and in truth the scope ofcopyright protection is so broad that acomplete detailed list would be difficultto compile. The Copyright Act of 1976generally defines the subject of copy­right in 11022.

The new Copyright Act doea not......",. any typ. 01 work from the .cope01 copyright protection. In fact, thescope of works protectable is slightly en­larged in that choreographic works (andpantomimes) are fully protectable even ifthere is no "story" which is associatedwith the work.

It also is clear that the intent of the lawis to make computer programs and databases protectable. Substantial uncer­tainty as to computer programs existedunder the old law.The Aulhof. Exelualve Right.

Traditionally the authofs exclusiverights include not only the right toprevent another from making somethingbut also a right to prevent him from do­ing something. Thus the composer of asymphony has rights respecting thereproduction of the score and also in theperformance of the symphony by an or­chestra. The Ilmltatlona on the authof.••el...... right. boIh .. to milking or

cIolng eomethlng ..Iatlng to hi. wort<a.. much m<He ••tenal..1y t..aled Inthe new eet than in the old.

A principal limitation of the rights ofauthors was the doctrine of "fair use" asit was developed by the courts. The newact seeks to codify the doctrine of fairuse by mentioning certain factors to beconsidered, namely (1) the characterand purpose of use, (2) the type of copy­righted work, (3) the significance of theportion used in relation to the wholework, (4) the economic effect of the useon the author's work or the market for it.

Perhaps more significantly, certainpractices are specifically mentioned asfalling within the doctrine of fair use.Some examples are copies forclassroom use inclUding multiplecopies, literary criticism, comment,news reporting, scholarship andresearch. 3

Not quite squarely within the fair usedoctrine but related to it is the libraryphotocopying situation. Without goinginto detail, the new act makes it reason­ably possible for a library to avoid copy­right infringement liability but at thesame time serve the needs of users withlegitimate study or research objectives.The library is obliged to display a copy­right warning, and of course libraries arenot permiffed to systematically evade thecopyright law any more than any otherorganization would be."

In the field of performance rights, theold act gave the author rights respecting"performance for profit". The interpreta­lion of "for profit" has had a long andcloudy history, and its removal from thecopyright act will occasion liffle mourn­ing. In place of the "for profit" provisionspecific types of public performanceactivities are exempt from the author'sexclusionary rights in the '76 act. Someof these areas are (1) face-to-face teach­ing activities in non-profit institutions, (2)slightly more circumscribed teachingactivities involving other than face-t~

face teaching, (3) performance of certaintypes of works in the course of religiousservices, (4) performances of certainworks without commercial advantageand without payment. or if payment ischarged, where the proceeds are foreducational, religious or charitable pur­poses (The copyright owner may re-

Record Number of Registrant. AU_Fan Leg.1 II18IUuta And Prectice Skill.eou....

Paid registration was 319 at the FALLLEGAL INSTITUTE and was 66 at theANNUAL PRACTICE SKILLS COURSE.In addition to the paid registrants at eachoccasion were also registered the vari­ous speakers and Program Chair­persons, Judges, Law School Facultyand Law Students who are also BarAssociation members.

Of Ihe evaluation forms distributed aleach event. approximately 10% of thoseregistered al the FALL LEGAL IN­STITUTE and approximalely JJ% ofthose registered at the PRACTICESKILLS COURSE responded. Thesewere excellent responses in each case,and they established the strong andweak points of each seminar. At theFALL LEGAL iNSTITUTE. the "star" ofthe proceedings was the ARKANSASPROBATE SYSTEM itsell. Also, favor­ably mentioned were the format of theprogram, the subject matter and thelocation. Less favorably mentionedwere: the length of the program (twodays could have been condensed into aday and a halO; lack of specific instruc­tion as to the use and implementation ofthe SYSTEM; and the late starts, too longcoffee breaks and a crowded meetingroom. Generally, the Speakers were wellreceived with approximately one-half ofthem voted outstanding on differentevaluation forms, Hopefully. the lessfavorable elements will be eliminated bythe arrangement of the MID-YEARMEETING program.

The evaluation of the PRACTICESKILLS COURSE was more generous.Most of the Speakers. especially thosewho had participated in past years. wererated outstanding; and the format of us­ing a "team-dialogue" approach in pre­sentation of subjects with differentpoints of view was rated far superior tohaving a single lecturer stand up !or ,aprolonged period of time (and thiS ISeasier on the Speakers. too!), The newSUbject of LAW OFFICE MAN­AGEMENT, presented by Richard A.Williams, and the resurrected subjects ofWORKMAN'S COMPENSATION andETHICS AND FEES were very well re-

AleLE NEWSby Claibourne W. Patty, Jr.

Executive DirectorArkansas Institute of

Continuing Legal Education

ceived and will be retained as a futurepart of the course program, The evalua­tions suggested that the ccurse could beimproved by lengthening certain sub­jects which had run over their allotedtimes of one hour and by providing morehandout material.

Long.hereman'. Act Compansationseml".r.

The MARITIME LAW COMMITTEE ofthe ARKANSAS BAR ASSOCIATIONand AICLE will co-sponsor a one dayseminar on the LONGSHOREMEN'SAND HARBOR WORKERS' COM­PENSATION ACT (LHWCA) at the Wor­then Bank Building auditorium. LittleRock, Arkansas, on December 9, 1977.Gordan S. Rather, Jr., Chairman of theMARITIME LAW COMMITTEE and Pro­gram Chairman, emphasizes in theprogram and registration brochure thatthe purpose of the seminar is to familar­ize Arkansas Attomeys and their clientswith the basic provisions of the LHWCA,in order to eliminate confusion betweenthe applicability of the Federal law andARKANSAS WORKMEN'S COM­PENSATION taw. From the Claimanfspoint of view, the LHWCA provides moregenerous compensation ,b~nefits toworkers for disability due to Injury or em­ployment-related occupational diseaseoccuring on the navigable waters of theUnited States. such as the Mississippi,Arkansas and White Rivers, or in ad­joining land areas used in loading andunloading vessels such as barges, Fromthe Employers' point of view, the LH­WCA imposes the responsibility ofreporting accidents to the properauthority and for the payment of com­pensation and medical benefits occunngthereunder; and if the injury is not repor­ted by the employer, no Iimifation periodruns and the employer and compensa­tion insurance carrier can be exposed torather severe penalties,

The Speakers are Marilyn Thompson,Assistant Deputy Commissioner in theSeventh Compensation District (La./Ark.)and Douglass M. Moragas, ClaimsExaminer in the Seventh CompensationDistrict.

MId-Yaar M..tingThe Mid-year Meeting to be held at the

Camelot Inn, Little Rock. Arkansas,January 19-20, 1978, will be structuredaround the ARKANSAS WILLS ANDTRUSTS SYSTEM, authored by Robert P.Wilkins of Soulh Carolina and revised byRichard A, Williams for use by ArkansasLawyers.

Registration and committee meetingswill lake place during Thursday morn­ing, January 19th, and lhe INSTITUTEpart of the program will commence at1:30 p,m. The Thursday. afterno~n

program, chaired by Byron Eiseman, Willcover basic law and recent develop­ments in the Estate Planning subjects ofINTER-VIVOS GIFTS, MARITALDEDUCTION PLANNING, DISPOSITIONOF CLOSELY-HELD BUSINESSES andLIFE INSURANCE PLANNING. TheFriday program, chaired by DickWilliams, will be structured around apanel including Bob Wilkins. The panelwill cover ARKANSAS WILLS ANDTRUSTS SYSTEM chapter and versefrom 9:00 a.m. to 2:45 p.m. From 3:00p.m. to 4:JJ p.m, the registrants willbreak up into four workshops which ~III

cover a hypothetical Estate Planningproblem. The workshop leaders willcorrelate the problem with the use of theSYSTEM, and questions can be moreeasily raised and answered in this sort ofenvironment. It is anticipated that theformat of the MID-YEAR MEETING In­stitute will correct the deficiencies of theFALL LEGAL INSTITUTE, that is: theprogram is condensed, the SYSTEM willbe examined in detail, and the workshopwill replace the atmosphere of a large"audience" with that of a true "semi­nar",Program. In Prog....

AICLE is working with the LABORLAW COMMITTEE of the ARKANSASBAR ASSOCIATION to present a LABORLAW, DISCRIMINATION LAW andOSHA SEMINAR in Little Rock on March16-17, 1978, More details will be avail­able in the next issue of the ARKANSASLAWYER,

Also in preparation is a general andcomprehensive survey to be ~ailed t?the Bar membership which Will permitconsiderabie feed-back as to the type ofCLE programs preferred by the Barmembership. f...-.

January 1978/Arkansas Lawyer!31

ing as its director. 88m HIgh8mIth,Batesville, is on the Executive Council ofthe American Bar Association YLD re­presenling Arkansas & Oklahoma........ Smith is regional attorney for Ar­kansas Social Services in MagnoliaDon S. Smith has been appointed byPresident Carter to the new FederalEnergy RegUlatory Commission. C. R.W......., Jr., Ft. Smith, has been electedtreasurer of the American Land Develop­ment Association and Is president ofFairfield Communities, Inc. Justice EI8l-j T. Roy, Little Rock, Judge JolIn L.And n, Helena, and Cu.... A.Brown, Little Rock have been selectedas outstanding appellate judge, trialjUdge and trial lawyer, respectively, byATLA for 1976-n. Ruth Bru.....n, LittleRock, attended the American Associa­tion of Law Librarians Convention heldin Canada Judith Rogers, N. LittleRock, has been appointed juvenile courtreferee for Pulaski County succeedingB8lty C..,... CMry\ J. T...I, formerlywith Legal Aid, has become an asso­ciate with Judith Rogers. Capt. And....ZI.r, formerly of Pine Bluff, has openeda law office in Fayetteville. L.ny H.rtl­1iI1d, Newport. has opened his own lawoffice at 412 Third Street. SIoIn R.ln­weter. Jr., Walnut Ridge, has an­nounced the association of M.rt< W.Webb. P.trlcl. A. L.ngllon, a 19n gra­duate, has joined the law firm of Shaw &Shaw of Mena. RlIY"'ond W....., LittleRock, has opened his law office on the17th floor of the First National Bldg.GI'IlI B. Brown, formerly of Little Rock,has moved to Benton with offices at 501N. Marl<et Street. Robert L. WII8On, for­merty of Newport. has moved to LittleRock. Meredith C.t.... has joined theFriday, Eldridge & Clarl< law firm. S.Gr..... C...... has opened his lawpraclice with H. B. Stubbllfilld in theWorthen Bank Bldg. """-bI/1e Clintonis with the Wright. Lindsey & Jenningslaw firm. Rick A. a-p, formerly of Fay­etteville, has moved his law office toWest Fori<. JICk K......" a 19n gra­duate, has joined his brother, ",,-, forthe practice of law in Magnolia. J• ..­Cox has joined the law firm of Walters &Davis and will be worl<ing in the Green-

wood office. The 99 year old law firm 01Reed & Reed, Heber Springs, has movedtheir offices to the Kelley Bldg. Lq J.Kennedy, III, a 19n graduate, hasopened a law office in Forrest City lo­cated in the Ash Bldg. The law firm 01Roe & Hunt has been formed in Rogerswith RIII'IIOIIII Roe and GIClIQI HunLJI..- D. Slc*.. and a new associateBob K. K.tlf, Mena, have opened abranch office at Cove, ArI<. edwin T.Pow... has become associated withD.vId O_on for the practice of law inMountain Home. Keith V.ugun hasjoined the Jacksonville law firm of Rice& Batton. Monic. Dllllum is clerl<ing forJustice John Foglem.n. Mill. Mill.. hasjoined the Searcy law firm of Boyett &Morgan, P.A. ROIIIIId G. H..rll, a 19ngraduate, has opened his law office inthe White Bldg. in Clarl<sville. SpilZberg,Mitchell & Hays has announced the as­sociation of J_ E. McC"In, Jr. andWilli..... L. Owen to their firm. Rick SI!­.... has joined the law firm of Bailey,Trimble & Pence. A new partnership hasbeen formed in Searcy by Ed Blthu...and Robert Edw.rdl; Bethune & Ed­wards. Rlcurd C....." formerly of lit­tle Rock, has joined the N. Little Rocklaw firm of Wallace, Hilburn, Clay1on,Wilson & Hankins, Ltd. A Fayettevillelaw firm has changed its name to Put­man, Davis, Bassett, Cox & Wright andannounces that Wood80n W. Se_ttIII has become an associate. TerryKlrkp.trlck, formerly with the AttorneyGeneral's office, is in Fayetteville withthe Legal Services of Northwest Ar­kansas. Mike _, Pocahontas, hasjoined the law firm of Wilson & Grider........ R. Cromwell is with the Legal AidBureau of Central ArI<ansas located inPine Bluff. oem.... A. H.... a 19n gra­duate, is practicing with the Fayettevillelaw firm of Pearson & Woodruff. PhIllipA. R.Iey, a 19n graduate, is practicingin Pine Bluff with Coleman, Gantt, Ram­say & Cox. J.... Dick., and GeorgeGIeI80n have become associated withThe Rose law firm. Willi.... B. Rowe iswith Murphy Oil Corp, Legal Depart­ment. SId..., S. _.th, President ofthe International Academy of Trial Law-

continued on page 47

II• •OYEZ•

by Barbara Tarkington

Membership Secretary

OYEZ

M.rg~t. AnnCh8pm.... has beennamed ArI<ansas'Outstanding YoungWoman of the Yearfor 1977. D..ldMy.ra, SiloamSprings, has beenappointed juvenilecourt referee tosucceed Dougl..WIl80n who now di­

rects the Legal Services of Northwest Ar­kansas in Fayetteville. SUMn McC.In,Little Rock, has been named administra­tion officer in the trust department of theFirst National Bank."'" K. Brldgforthhas been named assistant residentcounsel for Georgia-Pacific Corp atCrossett, Hoyt Thorn.., Heber Springs,attended the Sixth Annual Estate Plan­ning in Depth Seminar at the Universityof Wisconsin. M.rjorle K.I, England,has been appointed deputy prosecutingattorney for the 17th judicial district. WII­.... R. WII8On, Little Rock, will serve onthe 19n-78 Board of Governors of theAssociation of Trial Lawyers of America.Thorn•• B. Burt<. has been elected tothe Board of Governors of the Fayette­ville Savings & Loan Association. Ed­w.rd J. CUlllllngum, Mountain Home,is the Chairman of the Savings & LoanSection of the ArI<ansas Bar Associationand J• ..- W. L.nce, Little Rock, isVice Chairman and Secretary. ROIIIIIdBurton, Conway, has been appointedjuvenile referee of Faulkner' County.Thorn.. Sptlrt<.. Fordyce; JolIn Elrod,Rison; ROIIIIId L. Boyer, Rogers; andJ8..- S....... Jonesboro have beennamed to a new 7-mernber Rural As­sessment Study Commission. WIIIIIII'II R.StrlngNllow, Little Rock, has beensworn in as director of the state Com­merce Department. AI.... T..""" Bates­ville. has been sworn in as chairman ofthe Worl<men's Compensation Commis­sion. Fr.nk B. Whitbeck, Little Rock,has been elected president of the Ameri­can Foundation Life Insurance Com­pany. W, P. R.I..." West Memphis, willassume duties as a second attorney forthe Crittenden County Child Support En­forcement unit: A. Jan Thorn•• is serv-

a/ArI<ansas Lawyer/January 1978

EXECUTIVE COUNCIL NOTESNovember 12, 19n - Regular Meeting - Little Rock

Pet"1on To Ark...... SUpreme CourtReg.Idlng L.wyer AdVWllling. JeffStarling and Russ Meeks of the Spe­cialization and Advertising Committeereported that the Petition has been filedwith the Supreme Court in accordancewith the action of the House of Dele­gates. The AFL-CIO, Ar1<ansas Con­sumer Research, and ACORN have filedpetitions substantially asserting thatlawyers should be allowed to advertisewithout limitation as long as it is notfraudulent or deceptive. Other interestedparties may be petitioning or involved inthe public hearing in January. TheCouncil requested Jeff Starling, RussMeeks and anyone else their Committeefeels appropriate to represent the Asso­ciation on brief and at the hearing andauthorized them to incur any reasonablecosts. Jeff Starling pointed out that aspecific plan of specialization was notsubmitted with the Petition to theSupreme Court, but that the Committeeis working on such a plan for presenta­tion through the Executive Council andHouse of Delegates of the Association.

U.. 01 M.jor Credit C.Id•. Bill Brazilpresented a request and led adiscussion concerning clarification onthe payment of legal fees through creditcards. Following discussion, a motionwas dUly carried stating the position ofthe Executive Council that it does notrecognize any restrictions on forms ofcredit a lawyer shall use as to client ser­vices.

Speclel R.te For Auocl.tlon Mem­ber.. Following discussion of theprograms of continuing legal educationand particularly the systems created andsold by the Association, a motion wasduly carried that a $20.00 differential beapplied with respect to systems sold atthe mid-winter legal institute so thatAssociation members will receive a$20.00 discount on any systems pur­chased as compared with the price tonon-members. The Council also con·curred that the same differential wouldapply to any systems sold by direct ap­plication to the Association.

The Council also authorized the saleof systems in connection with regionalseminars by the Ar1<ansas Institute forContinuing Legal Education at the sameprice for which such systems could havebeen obtained by attending the FallLegal Institute.

Loce' Control 01 Leg.1 58_ Pro­g....... The Council discussed the

present status of legal servicesprograms in the state and possible legalservices programs. The Council adopteda resolution that it supports local controlof legal services programs. This resolu­tion is to be communicated to the legalservices committee of the Associationwith recommendation thai it be com­municated to the Regional Office of theLegal services Corporation.

Anll-Tru.t And Trllde RegulellonCommlUee. President Niblock presentedthe interest of several lawyers in such anAssociation committee and the Councilapproved the formation of the Com­mittee,

Budget M.negemenl Program.President Niblock reported on the workof an ad hoc committee which is con­sidering a program of long-range budgetplanning over a five-year period for thebenefit of the Association and to help theofficers in budget analysis and planningas transitions are made from year to yearin officers of the Association.

Judlcl.1 Poll. Colonel Ransick report­ed for Chairperson Winslow Drummondthat there had been 609 responses frommembers of the Bar and that this wasconsidered a substantial response. Itwas pointed out that the results of thepoll are confidential and are releasedonly to individual jUdges and to three of­ficers of the Association.

Syetem. Report. Colonel Ransickreported that the Probate System and theCorporation System had returned sub­stantial profits. He also reported that aFamily Law System is being planned SOthat it can be presented at the 1979 Mid­year Meeting. A Wills and Trusts Systemis being prepared for presentation at themid-year meeting this January, 1978. Inaddition, the form book for Ar1<ansaslawyers is well on the way under theeditorial leadership of Bob Wright.

Norwood Phillips and Bud Whetstonereported on the Workers CompensationSystem which will be introduced in aWorkers Compensation Seminar thisSpring. They noted that the system is inthe nature of a desk book and is beingreviewed carefully with the full Wor1<ersCompensation Commission prior to

completion.'"

NEW ABAPOLL SHOWSADVERTISING

NO.1CONCERN

OF LAWYERSLawyers consider advertising the

single most important issue facingthe legal profession, according toLawPoll, a new feature of the Ameri­can Bar Association Journal thatmakes its appearance in the No­vember issue.

LawPolI, conducted for the Jour­nal by Quayle, Plesser, and Com­pany, Inc., found that advertisingand other aspects of lawyers' rela­tionships with the public are ofmuch more concern to the legalprofession (71 per cent) than thepractice of law (33 per cent), condi­tions of the bar (30 per cent) and thesystem of justice (21 per cent).

Based on a random telephonesurvey of 602 ABA members inAugust, LawPoll found that 42 percent of the respondenls listed ad­vertising as their top individual con­cern.

Lawyers' image before the publicranked second followed by ethics,legal services for the middle class,legal services for the poor and spe­cialization, Unequal justice rankedas the least element of concern.

Sixty-eight percent of those inter­viewed said they disagree with thepremise that lawyer advertising willlead to more competitive pricing,reSUlting in a general fee decrease.The majority of those responding,66 per cent also disagreed. how­ever. with a suggestion that lawyerswouid pass along their advertisingcosts to the consumer in the form ofhigher fees.

LawPolI showed that most at­torneys fear advertising will ulti­mately lead to promoting the qualityof services "and the slick kind ofadvertising that we associate withconsumer products,"

January 1978/Ar1<ansas LawyerI'ST

EXECUTIVE COUNCIL NOTESby Cyril Hollingsworth

Secretary-Treasurer

HOUSE OF DELEGATES HIGHLIGHTS5eptember 17, 19n - Called Meeting - Little Rock

New Executl"" Council Member.Leroy Froman was elected by a caucusof the Northeast District delegates to fillthe unexpired term of John Mac Smith,who died recently. The House ofDelegates passed a Resolution to besent to the family of John Mac Smithciting his long and active service to theprofession. In addition, Herschel Fridaywas elected to the Board of AICLE to fiilthe unexpired term of John Mac Smith.

Committee on Lelll.laUve Rep­_tat..... The House of Delegatesadopted the report of the LegislativeRepresentative Committee in principle.This report considers the formation of aseparate, non-profit, tax-exempt cor·poration for the purpose of educatingand informing the public, including themembers of the Ar1<ansas Legislature,about legislative measures especiailypertaining to the practice of law, thecourts and the administration of justice.Such a corporation would be completelyseparate and distinct from the ArkansasBar Association.

WI" MIl Probate S¥etem. Foilowinga report by Col. Ransiel<, the House ofDelegates approved the underwriting ofa wiils and probate system for Ar1<ansaswhich wiil be the South Carolina systemdeveloped by Bob Wilkins, with an up­date for Ar1<ansas lawyers. The Mid­Winter Legal Institute wiil feature thissystem as part of its consideration ofwills, trusts and estate planning.

P..,..1d Leg.1 Se..1ceI. Truman Yan­cey presented a report from this Com­mittee with particular attention toproposed legislation In Congress whichwould treat contributions to a prepaidlegal services plan differently than theother favorable tax treatment of otherplans, such as those for medical treat­ment. The House duly adopted a motion

3lI/Ar1<ansas Lawyer/January 1978

that the Committee be authorized tocommunicate to the President of theUnited States and the Ar1<ansas Con­gressional Delegation that the Associa­tion favors contributions for prepaidlegal service plans being treated In thesame manner for tax purposes as con­tributions to plans covering medical ex­penses and the like.

Raeolullon for POIlponement 01 tllaEflact.... Date lor C.rryo""r Bul. Pro­vi........ Ralph Brodie, Chairperson ofthe Taxation, Trust and Estate PlanningSection presented a Resolution in favorof postponement of the effective date forcarryover basis provisions under the In­ternal Revenue Code 11023 of the 1976Tax Reform Act. Mr. Brodie explainedthe serious difficulties faced by lawyersand others until appropriate guidelinesare established regarding such pro­visions and the fact that the attorneys at­tending the Fall Legal Institute regardingprobate wof'1( overwhelmingly favoredthis Resolution. The Resolution wasadopted by the House.

Unauthorl_ Practice 01 L_ Com­m_. The House took action to revokethe present Committee on theunauthorized practice of law due topresent legal questions over theseparate involvement of bar associa­tions In that area. The House further re­solved that a petition should be present­ed to the Supreme Court of Ar1<ansas toappoint a committee as part of its func­tion to wor1< In the area of the un­authorized practice of law. President Ni­block appointed Charles Brown, CharlesCarpenter and Otis Turner to draw apetition and present the same to theSupreme Court In behalf of the Associa­tion.

UALR L.w SChool Sympcllium. TheHouse approved a contrlbu1ion of $500

to the University of Ar1<ansas at LittleRock Law School for its program of legalsymposiums for the students featuringAr1<ansas lawyers and judges. The sameappropriation previously was made forthe University of Ar1<ansas Law School.

Appellat. Court. for Ark.n....Following a presentation by JusticeJohn Fogleman regarding the need forcreation of an additional Appellate Courtfor Ar1<ansas and the constitutionalamendment proposed by the Ar1<ansasLegislature, the House approved amotion whereby the Association en­dorses and supports the proposed con­stitutional amendment allO'tYing an addi­tional Appellate Court.

Lawyer Advarliling. The House ap­proved the report and recommendationsinitiated by the Specialization and Ad­vertising Committee and approved withslight modifications by the ExecutiveCouneil for presentation by petition tothe Supreme Court as proposed amend­ments to the Code of Professional Con­duct. The proposal adopted is based onone of those approved by the Board ofGovernors of the American Bar Asso­ciation. The proposal contains a provi­sion that advertisements in the printmedia could include the description ofthe practice. for example one or morefields of law in which the lawyer or lawfirm concentrates; and/or a statementthat the lawyer or law firm specializes ina particular field of law practice but onlyif authorized by the appropriate entityapproved by the Supreme Court ofAr1<ansas for regulation in this area. JeffStarling, Chairperson of the Special­ization and Advertising Committee, ad­vised the House that wor1< of the Com­mittee would continue In the area of spe­cialization and a recommendation wouldbe forthcoming.

Fines, the new Arkansas ProbateSystem was the highlight of the Fall Le­gal Institute - a truly great seminar!

Arkangag

©

Probata

Every practicing lawyer should have acopy. Need to get my order in now forthe Arkansas Probate System.

The Arkansas Probate System is a 4OO-page loose-leaf legal-size volume, with 28 separate tab sections ­contained in a special easel type binder for ease of use by lawyers and their secretaries. It is a "must" legalreference for all Arkansas lawyers.

-----------------------------------------------------ORDER FORM

o Send me a copy of the Arkansas Probate System.

o My check/money order for $77 (includes $2 mailing cost) is enclosed.

NAME _

Send order with check to:Arkansas Bar Association400 West MarkhamLittle Rock, Arkansas 72201

ADDRESS: _

January 1978/Arkansas Lawyer!35

Prepaid Legal servicescontinued from page 33commissioners.&3 This "preemption" isless than crystal-clear, however. Anotherwriter feels certain that

Congress did not purport to invalidateall state rules affecting the lorm andcontent of legal service plans(and)...cannot have intended to pre­empt in an area which it has not at­tempted to regulate."

This issue remains undecided in Arkan­sas and "8 number of other states," ac­cording to Frank Sewall, staff attorneyfor the Ar!<ansas Insurance Depart­ment.es

The _lIy _eel ArlI...... Insur­ance Actll ••u.... jurisdiction by theArk...... lnaur.nce Commlul_r 01.11 tranaactlona ImIolvlng 1eg.1 lnaur·ance. Under a limited exception, "Legalservices provided by unions or em­ployee assoclalions to their members Inm.1Ien rwlatlng to employment oroccupation" are not considered in­surance'" and therefore not regulated bythe act. Impliedly, _ legal servicesprovided by unions or employee asso­ciations .,. subject to its control andthereby perhaps in conflict with theERISA preemption. Any organizationrelying on this preemption and not con­forming with the provisions 01 the Ar!<an­sas Legal Insurance Act will be "takento court" by the Insurance Department.according to Sewall."

Additional Burden on tIw JudIcI.1 Sya­....It is accepted lact that many courts are

already overl>urdened and additionalcases are piling up daily. The effect 01 avastly increased docket resulting fromincreased availability and use 01 prepaidlegal services raises the issue ofwhether our current system can handlethe projected burden."

In addilion, there's the question ofwhether the nalion's almost 400,000 at­torneys could begin to handle the de­mand that prepaid legal services mightcreate. This outlook is more optimisticthan the increasing docket load, though,since the "lawyer population" shouldreach about 500,000 by the year 198500

or, according to another estimate,double In number by 19l16.01

34/Ar!<ansas Lawyer/January 1978

Lack of D.t.Even though some prepaid legal ser­

vice plans have been In existence lorover six years and have yielded valuableInformation, there is still a lack of mean­ingful actuarial data upon which to basethe cost of group legal insurance andthe generally most desirable type 01plan. The data currently available israther fragmentary and less than a goodbasis lor rate estimation. Fortunately thisis presumably a short term problem, butuntil it is solved, it will be a substantialimpediment to implementation 01 legalinsurance programs.t2

III. CONCLUSIONMany excellent articles have been

written in the past lew years dealing withprepaid legal services, but "(t)o date, the

. publicity has greatly exceeded the per­formance. "13 The foregoing discussionis by no means an all-inclusive explana·tion 01 the concept. but merely an at­tempt to summarily familiarize thereader with the subject, its possibilities,and problems. The interested reader isencouraged to pursue further detail inthe footnoled references.

Sources have estimated that apprOXi­mately 35,000,000 families," or over120,000,000 American citizens95 are notadequately served by the legal proles­sian. This vast, as yet primarily untappedmar!<et represents untold hours of legalwar!< lor present and future attorneysand billions of dollars in potential reve­nue. In early 1976, an estimated 5,000plans across the country96 were provid­ing prepaid legal services to between 1.5and 2 million persons.iT

Although much has been done in thefield of prepaid legal services, manyproblems need to be resolved and muchremains to be done. These difficulties,however, may be viewed as temporaryhurdles rather than enduring obstaclesto realization 01 the unsatislied need andpotential. The practicing bar, lawschools. regulatory agencies, and insur­ance interests must all wori< together inthe public's best interests to achieve thisresolution. One thing is certain: Onceprepaid legal services plans have fullydeveloped, the legal profession willnever be the same.

BIBLIOGRAPHY

1. PERIODICALS~ PrepMd~~ - Son» New Dtw.Iel~

1NfQ. 25 ~n Ina. Couneel Q. 'JZ1 (1i15).Connally. Eth/c.J Co,./It1fQt/oM 01~ '--fIaI s.tva..

11 FonIm 201 (19TS).De8agglo, ~al ln$UrMX:e. Saturday Rev., september 23.

1972, a14S.EMlunds Mel KNlIe• ..Pret»kJ ~aJ sernc.: II. Dtw-'op­

men' wtd Futln." 12 "1...11 B.J. 3 (1976).Eklol and KaylOn, A Turning Point lor PrIIt»Id Legal IMur·

Me.? BNf. Rev.: Prop.1lJllbillty 1M. Ed.. OclOber. 1976.at 14.

Fisher, Prepaid tAga/5ervlc. - QwI 'I. CIoHd PMell. 58M_. LQ. 24J (le73).

Greene. ,. t..w c.,. He"" PrfI*d t..paI $Mot:.. CuI1Wlt.Februaty. 1973, al 18.

Gtoup Legal 5eN"1C8I. From Houston 10 ChICagO. 79 Diclc­Inson L Riw. 821 (1m)

Hanebefg. Gtoup l...epM~ - The Frinf1e 01 theFutIJfe? 112 Tr and fit 2fl6 (1913)

Hayes. DelNetY S¥atemt lor t..g.1 Setvic.- - PrepIIid tAg-'.semc- wtd Prepeld~ InaurwJCe, 4O.hI Counsel J414 (1973).

....,.. Prepeid ~aI .semc- - The "'anang. NtNtJ. 41Ins CounHI J 3Il5 (1V74)

Jones,~Co~ The MiUIng L.i'Ik. TrlItI.March/April li15, as 28.

KalpIan. PNpMJ~ s.mc. W".,. In W.? 13 GIl. sr_B.J a (1m)~ PNpekJ~ s.rwc.; W'* It .. W".,. It ia,

s.r. Rew .. Prop.JUeiflty Ina Ed.. oec.nber. t9n, at 22.L.- 1Munnce,~. June 10. 1V74•• 48-l.egIIl s.v.e:. W,Itwt Reech 01 1M~ Amencan A~

_ of the Turney He.,..,., 21 Barb'L Rev SJ3 (1915).l.egIIl Servce Pt.. - Coming ol Age. 48 sr JaM'. L RlW

137 11V74)MItlkIl'\, PrepekJ~ s.mc- - W".,. ~ W. Need To

Oo? 13 aa sr. 8..1. l' (1976)Mutphy. Buy How, ffet:fIM LIIer, AV'" oIlhe FtAtxe. Trial,

March/AprIl 1915. at 12.Murphy. Cumm 51.,... at Pr.,.;d~ 5eMcw, 10 FonIm

42S (11'7')Murphy. The PNpMJ lJgaJ same.. Picttn, S2 AB.A.J. 15811

(1976)Murphy. Prepeid Tall"'" RoOf Tn.I, June, 1976. at 1••New Frlttge 1JeMI*: PrepeJd UgM s.rwc., Sus. W... Janu­

lIfy 12, 1974, &I 34How Gtoup /MlJ(MCe p.-,. /he Lawyw: Prepeid ~., P1«Ja,

Bu•. W... July 10. 1971, al 58.The Oro-nlzecl Bar and PrepMt Legal 5eNoces - IvI lvlti­

trual 1vIa/yM. 1i75 WutI. U.LQ 1011P*migstOl1, u.gal Elf".,... InaurMCe, 23 Am. J. Comp. L

451 (1975)PillS. Currenl {)awtlopment. In PrtpeJd lJgal 5en'Icer, 11

Fotvm 18 (1975)PrepMd ~al - How to En'" 1M Field, H.,-, Underwriter:

Prop. and C..ua«y 1M. Ed., November 1. 197', at 29.St. IvIloIne, Growth P.n«mln Lllgel Servfc_. AFL.(;IO Am.

Federatlonlat, Febfuaty, 1976, at 19sandler, Negot/aled Prepaid ~el5enrlcN Plana: PMI,~

Hnf. and FUlln, 17 Lab. W. 301 (1976)sen•• Panel 0mI1. P~menI ~ PrepekI ~eI From Income,~(/ Uno.rwrlf.,· Prop. and Caaue«y Ina. Ed.• June 18.1976, at 18.

The StweYepor1 Mel Columbva Plana of Prepeid Legal Sew·vion - !VI lvIalysll ol Plans Presently In OperatlOl\ 17IUyIor L Rev 485 (191S1.

Soremen. Group Lllgal Plena - The sr•• oI/he Art, N.rlUr'ld«wrh..~ Prop e/IJCI euua" lnI. Ed.• July 19. 1974, at38

1rie1, March/April 1915, al 12-Wilcoll and Schneider. PrepekJ~ 5ervIe.- wtd lhe Code

at ProMalonal R-.ponaI/:IIIty, 38 «:»tiel 51 W. 761 (1i751

2. CASESAlL c...... & otera Y Unitld Stales. 2l!l6 U.s. 4Zl 11932').8hd. ol R. R. T.-.uwnen y, Va.. 'J17 U.s. 1 (1964).FecI. OutJ Y Nat'! lMgult, 25l1li U.s. 200 1t922).FTC y RMadaon eo.. 2183 Us. &13 1t931).GoldfartJ y Va.~ Bar, 121 Us. m (1915).NAACP y Button. 311 Us. '15 (1l.NW y .. Stat. Bar 'n, 3l!l8 Us. 11 (1967).United &-_ y Na/'I ·n of RuI Estate Bds.. 339 U.S. 4115

t18l5O)•Un'tid TfWIIP. Union y SlatlI s.r 01 M.ch.. 101 U.s. 57Ii

(1971).

3. MISCELLANEOUS SOURCESMJA Code of ProfeMIoNI] ~Ilty, 19B1, Disciplinary

Au_ 2·101ABA Comm. on ProleMlonal Ethlca, OpInions. No. 333.AB.... Reviaed HerwIfX>ok on PrepeId Lllgal ServicM, 2, om).Ark. Acts 1977, No. 388.26 Stat. a. as arMnOed 1S US.C. 11Conlerence Repcll'1 on Amendmflnt olLMRA of 1947, Con­

greMlonal Record. July 17, 1973, and comments of SenatOfJill/lIS, JHS 13147.

/Agel InaUfMJe. Prepeld Pktna Contlnuel Spfead, Arlc.Damor;ral. NovernOer 1, 197f!. al lOB. col. 10.

Telephone interview wrilh Frank sewall Staff Attorney w1m!he Mansaslnaurance OepanmenL In Uttle Rock~. 25,

19m.~

three types of organizations promotingthe plans: Bar associations, laborunions, and insurance companies.55IntemIlI R_ Code Provl.......

The development of prepaid legal ser­vice plans received tremendous impetuswith the passage of the Tax Reform Actof 1976. This act added Section 120 tothe Internal Revenue Code and excludesfrom gross income:

(A)mounts contributed by an employeror on behalf of an employee, hisspouse, or his dependents under aqualified group legal services plan(and) the value of legal services pro­vided, or amounts paid for legal ser~

vices, under a qualified group legalservices plan...to, or with respect to,an employee, his spouse, or his de­pendents.56

With this clarification of the tax status ofthese benefits comes the prediction byPhilip J. Murphy" that the number of le­gal insurance plans should double in19n as a resull. 56 This change couldcost the Treasury as much as$400,000,000 a year, according to SenateFinance Committee staff estimates.59

AntItNII ConeIder8t1onaAntitrust problems that have arisen

during the development of prepaid legalservice plans pose one of the most ser­ious threats to their proliferation.5O TheAntitrust Division of the Department ofJustice has expressed the opinion thatthere are two potential areas in whichprepaid legal service plans may raiseantitrust questions: (1) Price fixing, and(2) restrictions on competition betweenopen and closed panel plans."

Section 1 of the Sherman Act declaresfNery combination of conspiracy re­straining trede among several states tobe IIlegal.ll2 Even though lawyers in mostsenses of the word are not tradesmen,the Antitrust Division believes that theyare governed by the trade law insofar asthe economics of their professionalpractice.53 In a seeming departure fromearlier dictum,64 a unanimous SupremeCourt uphetd this view in a 1975 case inwhich it was said that exempting anor­neys from the provisions of the ShermanAct would be at odds with the Congres­sional intenl." The Court further heldthat mandatory adherence to minimumfee schedules is in restraint of trade andtherefore within reach of the ShermanAct.66 Lawyers agreeing on amounts

they will accept for the services they of­fer and then presentation of such plansto the public probably constitutes a pricefixing agreement.67

As to the second problem area, any at­tempts by State Bar Associations to dis­criminate in favor of open plans couldwell constitute a restriction on competi­tion as well.

To the extent that the new pension re­form law (discussed infra) serves to pre­empt the bar from regulating the formand content of prepaid legal serviceplans, whether open or closed panel, un­der the guise of disciplinary rules, (how­ever,) (this) area of antitrust concern ismoot-58

"A number of bar association plannershave turned to insurance company un­derwriting of open panel plans to avoidthe antitrust problem. "M

Ba, Elhk:.The passage of several amendments

to the Code of Professional Responsibil­ity at the ABA's February 1975 mid­winter convention in Chicago mani­fested a dramatic change in anitudewhich began the year before at a similarmeeting in Houston. These so-called"Chicago Amendments" removed manyof the ethical obstacles hindering thematuration of prepaid legal servicesplans. While the prior stipulations of theCode had prohibited virtually all adver­tising of legal servlces70 and severely re~

stricted the permissible scope of grouplegal services!' the Chicago Amend­ments change these provisions, as wellas others. These new rules eliminate thedifferent treatment of open and closedpanel plansn and provide that:

1. Qualified legal assistance organiza­tions may engage In dignified com­mercial publicity about their services,but information about individual law­yers may be communicated onty topanel members or beneficiaries. (DR2-101 (B) (6).2. Legal assistance plans may not in-­terfere with the independent profes­sional judgment of the lawyer onbehalf of his clients - nor may suchplans in any way subject the conductof lawyers to the regulation of non­lawyers (DR 2-103 (D) (4)).3. An organization set up to provide le­gal services may be for profit but maynot profit from rendering legal ser­vices (DR 2-103 (D) (4)).4. Such profit-making organizationsmay not provide legal servicesthrough lawyers employed by them,but can recommend attorneys as longas they are not supervised or directedby the organization (except when suchan organization bears the ultimate lia­bility of its members or beneficiaries)(DR 2-103 (D) (4)).5. No legal assistance organizationmay operate to procure legal wor1< for

any lawyer as a private practitioneroutside the program of the organiza­tion (DR 2-103 (D) (4»).6. Attorneys may not operate or pr<rmote group practice organizations forthe purpose of self-benefit (DR 2-103(D) (4)).7. The plan must provide appropriaterelief for a plan member who wishes toselect counsel other than that fur­nished, selected or approved by theplan in cases where representation byplan counsel would be inadequate, in­appropriate, or unethical (DR 2-103 (D)(4)),73

"The Chicago amendments represent asignificant advance for groups legal ser­vices,"74 and have been categorized as"in most respects...satisfactory."7s~ amendmenta .en edop*l byI/Ie Art<_. Sup...... Court In a percuriam opinion d_ Dec....ber 15,1975."

The view of many participants in theFifth National Conference on PrepaidLegal Services at New Orleans was thatthe major obstacle to the development ofprepaid legal service plans 15 the lack ofpublic interest or "consumer aware­ness. "77 The Chicago Amendmentsmentioned aupr. are a step forward, butfurther modification of the Code of Pro­fessional Responsibility may be neces­sary to overcome this obstacle. Onewriter notes the difficulty of informing60% of the population "of their need foranomey services without the use ofmass advertising techniques."78 Anequitable balance must be struck be­tween "the desire to avoid the evils ofadvertising" and "the profession's re­sponsibility to afford legal services to allAmericans.'·7QDlapute 0 .., Conlrol

Another problem of substantial conse­quence is who will control group legalservices. Bar Associations feel quitestrongly that legal ethics demand con­trol by the organized bar, while past ex­perience suggests that other interestedparties, particularty unions, "are notabout to have programs dictated to themby those whose services will beutilized. "SO While this jurisdictionalproblem has not yet assumed majorproportions, it is an additional roadblockwhich involves "jealous perogatives andprotective boundaries of the variousgroups involved. "81

According to one source, a regUlatoryaspect of this dispute "appears" to havebeen senled by the passage of the Em­ployee Retirement Security Act of 1974(ERISA)." This legislation apR'ies toplans funded through collective bargain­ing agreements or from union dues andclearly makes these plans subject to fed­eral regulation only and exempt fromregulation by the various state insurance

continued on page 34

January 1978/Ar1<ansas Lawyer133

Prepaid Legal servicescontinued from page 31

stand In the face of these prior decl­sions.27

Bar Con8IdaratIonIn 1965, the American Bar Association

adopted a milestone resolution In whichIt declared Its strong support for in­creased availability of legal services.28

While the resolution was adopted pri­marily out of concern for expansion oflegal services to the poor, It also In­cluded language that indicated theABA's " ...urgent duty to...developmore effective means of assuring that le­gal services are in fact available at rea­sonable costs for all who need them.""

Following that resolution, that theA.B.A. formed several committees thatbegan to study and explore the problemof availability of legal services; In 1970,the A.B.A. Special Committee on Pre­paid Legal Cost Insurance was formed.Two years later, the A.BA formallyurged state and local bar associations tostudy and experiment with prepaidplans, especially those which allowedfree choice of attorney by the Indlvidu­81.30

In February of 1974, the American BarAssociation reaffirmed its commitmentto providing legal service for all Ameri­cans and stated that it:

...(E)ncourages the development ofnew prepaid legal service plans de­signed to make legal service moretruly available to individuals if it pro­vides assurance of quality services atreasonable costs and is consonantwith the highest professional stan­dards and the best interests of thepubtlc.3l

Detannlnatlon 01 lila NacoIt has been estimated that two-thirds of

the people in the United States are with­out adequate legal services." Indeed,the American Bar Association's RevisedHandbook on Prepaid Legal Servicesacknowledges long-standing awarenessthat"...the middle 79% of our popula­tion is not being reached or served ade­quately by the legal profession."33 Theseindividuals may be said to be "legallyindigent" because while their incomedisqualifies them from participation Infree or subsidized legal service pro­grams. it is nevertheless insufficient toafford most legal serviees.34

321Ar1<ansas Lawyer/January 1978

In an effort to determine why thesemiddle Americans don't properly utilizethe services of an attorney and whetherthey would take advantage of such helpif it were available through a legal ser­vices plan, many surveys were con­ducted.

One such survey run by Uni­mark/Caldwell of Dallas determined that

approximately 70% of Americans do notseek proper legal help when they need itbecause of the cost."" Danny Jones,chairman of the American Trail LawyersCommittee on Group Representation.has estimated that over 3:1,000 legal mat­ters per day go unattended by attorneysbecause middle-income people cannotor will not pay minimum lees.36

Fireman's Fund American Companiesconducted an extensive survey in 1972

. seeking the answers to four questions:What legal services were needed, howoften they were required, what they cost,and how much variation there was in useaccording to demographic factors.37 AYale professor conducted the survey onsome 2,CXX> lower-middle income fami­lies in Akron, Atlanta, Nashville, Oak­land, Rochester and Seattle and deter­mined that while 36% of the families hadlegal problems and 23% could recog­nize the need for legal services, only15% had contacted an attorney." Pro­bably one 01 the more meaningful resultsof the survey was the finding that fre­quency of usage of legal services di­rectly correlated with level of income:Only 17% of those persons surveyedwith incomes under $5,000 utilized theservices of an attorney, while 36% ofthose with incomes over $25,000 didso."" At lirst glance, the most importantlinding of this survey appears dismay­ing: 75% 01 the sample population werenot willing to pay any amount for prepaidlegal services. Only 21% were willing topay for an insurance program of thistype, and 4% didn't answer.'" Fromanother perspective, thou9h, the resultwas encouraging: Nearly one-fourthwere willing to buy, and that indicates asizeable need.

Syracuse University, in a very similarsurvey, found virtually identical results:36% of the families had legal problems,23% recogniZed the need for legal assis­tance, but only 15% had contacted an at­torney.";

Columbia University's School ofSocial Wor1< surveyed approximately3,000 members of a New York union andlound the following: 01 those polled thatresponded, almost half stated a need forlegal services but had not contacted anattorney; "The survey clearly indicatedthat the overwhelming majority of 89%would be positively disposed to utilizingan attorney if such an attorney wereavailable through their union."42

The American Bar Foundation and theABA Special Committee to Survey LegalNeeds conducted a survey in 1973 and1974 which lound that the public fears aI­torneys as being expensive and unwill­ing to help with minor everyday prob­lems.'" Over 18% of those polled saidthey feared the prospective cost; over60% felt that lawyers charge more lortheir services than they're worth; nearly25% felt it was undesirable to use an at­torney or the legal system to resolve dis­putes; over 3:1% said they handled theirproblems in other ways; and over 40%felt that a person would not call a lawyeruntil he has exhausted every other wayof solving his problem."

Various polls of attorneys by a numberof state bar associations have acknow­ledged the need and endorsed the con­cept of prepaid legal services."Seventy-one percent (71 %) of 20,000 at­torneys in California stated they wouldsupport a plan sponsored by the StateBar;" the response by lawyers in an Ari­zona survey was similarty encourag­ing.'u

The results of these surveys all indi­cate at least one thing: "From the point01 view of classical economics, 8 markethas been discovered. The discovery Isthe U.S. middle-class mar1<et for legaladvice."" One projection 01 the annualvolume of this mar1<et is roughly$5,000,000,000." One writer sums it upby saying, "(t)hat prepaid legal servicesare a necessity of life has been exhaus­tively demonstrated."'"

II, Probleml Involved In Development 01Preplld Lege. Servlcal Pleno

Many types of problems have impededthe development and proliferation 01 pre­paid legal service plans. While somehave been resolved, others have beenuncovered and demand a solution if pre­paid legal services are to become widelyavailable to the middle-income Ameri­can.Amendment 01 tt. Taft-Hartlay Act

In August of 1973 one of the biggeststumbling blocks In the creation of pre­paid legal service plans was removedwith the amendment of section 302(c) ofthe Labor Management Relations Act of1947 (Taft-Hartley)." This amendmentprovides that joint labor-managementtrusts may be established to defray thecosts of legal services for employees,their families, and dependents.52 In addi­tion, employees may now select a"counselor a plan 01 their choice."" Asa result of this amendment "the provid­Ing of legal services as a benefit is nowa mandatory SUbject of collective bar­gaining"54 and unions may now nego-­tlate for this "fringe benefit." Responsi­bility for bringing about this change wasdue largely to a cooperative affort by the

more universal method of practicing lawhave received considerable attentionand tremendous impetus within the lastfew years, it is hardly a brand-new con­cept - "Institutions performing thesame social function as prepaid legalprotection can be detected in the Romanrelationsllip of patron and client and inthe lord's dUty to defend his man, bothphysically and in courts of law."'0 Theconcepts disappeared with the advent ofguilds and was not rediscovered untilthe mid-nineteenth century in France, at­which time ..... several compa­nies...offered contracts under whichthey agreed, for a fixed periodic con­sideration, to conduct lawsuits for theircustomers...";; By the turn of the cen­tury, prepaid legal insurance plans ofvarious types were being experimentedwith in several countries in WesternEurope.i2

In the United States, "(I)egal expenseinsurance was written as early as 1899by the Physician's Defense Company ofFort Wayne, Indiana."i3 In existencesince the early 1900's were other limitedbenefit plans prepaid by unions andassociational funds. Some of these earlyplans included the Policemen's Benevo­lent Association in New Yorl< and theBrotherhood of Railroad Trainmen.Policemen in the former organizationwere legally represented before the CivilService and Police Review Boards, whilethe latter group established a referralnetwork of lawyers who specialized incases concerning the Federal Employ­ers Liability Act. Under this plan, themember attorneys charged a somewhatless contingent fee.'<4 Some automobile

clubs offered their members automobile­related legal services beginning in thelate 1920's," and the American Automo­bile Association has long provided legalservices for its members involved inminor accidents.

Some modern legal insurance plansvery little from the early historical prece­dents. According to one source, manyplans " ...provided to their membershipby unions cover little more than legalrepresentation for a member before aworkmen's compensation board,"i7 Thislimited benefit appears atypical, how­ever.Judlcle' CoMlcI.,etlon

The interest in and growth of prepaidlegal service plans during the past fewyears has been due "in no small part" toa series of Supreme Court decisionsbeginning in 1963 with NAACP v. Bu!·ton. '8 In this case the Court held that theFirst and Fourteenth Amendments to theConstitution protected the right of theNAACP and its defense fund " ...to fi­nance litigation handled by its staff at­torneys, including defraying expensesand paying the attorneys up to $60 perday, and to refer people to the staff law­yers to handle cases.";9 The Court con­cluded that the State of Virginia couldnot forbid such activity under the guiseof a statute prohibiting the solicitation oflegal business.20

In 1964, the Supreme Court againconsidered a Virginia statute prohibit­ing the solicitation of legal businessand the unauthorized practice of law inBhd of R, R. T'elnmen v. Ve.". The con­duct under dispute here was the union'sreferral of injured members and the fami­lies of men killed in the course of theiremployment to chosen attorneys. TheCourt followed Button and said this con­duct was protected under the First andFourteenth Amendments.22

Three years later, the Court handeddown a similar decision in UMW v. III.Stat. B.r Au'n.23 Here the Bar Associa­tion had brought suit to enjoin the UnitedMine Workers from hiring staff attorneysto represent union members in Work­men's Compensation disputes before

the Illinois Industrial Commission. In itsdecision, the Court specifically statedthat it was following Bullon and T,eln·men and held "that the rights to freedomof speech, assembly and petition underthe First and Fourteenth Amendmentsgave the union the right to hire attorneyson salary to represent members in theassertion of their legal rights."2<4

The most recent decision of the Sup­reme Court in this area was UntiedTrenep. Union v. Stili. Be' of Mich." Inthis 1971 decision, the "Burger Court"followed Button, T,.lnmen and UnitedMine Work.... and held that such activi­ties as furnishing legal advice to unionmembers or their families, furnishing toattorneys the names of injured work­men, and transporting injured membersto legal counsel's office are protected bythe First and Fourteenth Amendments."Mr. Justice Black, speaking for the ma­jority of five, emphasized that the opin­ion is not to be construed narrowly whenhe stated:

In the context of this case we deal witha cooperative union of workers seek­ing to assist its members in effectivelyasserting claims under the FELA. Butthe principle here involved cannot be .limited to the facts of this case. Atissue is the basic right to group legalaction, a right first asserted in thisCourt by an association of Negroesseeking the protection of freedomsguaranteed by the Constitution. Thecommon thread running through ourdecisions in NAACP v. Button, TreIn­men, and United Mine Work.... is thatcollective activity undertaken to obtainmeaningful access to the courts is afundamental right within the protectionof the First Amendment. However, thatright would be a hollO'N promise ifcourts could deny associations orworkers or others the means of enabl­ing their members to meet the costs oflegal representation. That was theholding in United Mine Work....,Tr.lnmen, and NAACP v. Button. Theinjunction in the present case cannot

continued on page 32

Williams G. Crowe is Deputy Prosecuting Atlorney of the Sixth JudicialDistrict of Arkansas (Utile Rock). He became interested in the concept ofprepaid legal services after his first year of law school and while doing a re­search project for business school. This article is the outgrowth of this in­terest and is an abbreviated version of his Law Review Comment. Mr.Crowe received a J.D. from the University of Arkansas at Utile Rock Schoolof Law in 1977, an M.B.A. from Southwest Missouri State University in 1976,and a B.S. from Southwest Missouri State University in 1972.

January 1978/ArI<ansas Lawyer/31

Prepaid Legal services Plana:A Familiarization

With The Concept

by Williams G. Crowe

(Editor's Note: The references in this article to related Ar­kansas law and Rules of the Arkansas Supreme Courtare of particular interest to Arkansas lawyers. The sub­ject, itself, is of great moment in the practice of law. Dueto space limitations, the footnotes to this article have notbeen printed. However, the footnotes are available at theBar Center upon request. The BIBUOGRAPHY has baenprinted at the article's end.)

L IHTRODUCOOH

DefinitionPrepaid legal seNices may be defined

as " ...a system in which the cost ofpossible legal seNices needed in the fu·ture is prepaid in advance by, or on ba­half of, the client who receives such ser­vices.", Group prepaid legal seNices"involves the same principle, except thatthe plan of prepaid legal seNices is soldto an organized group such as a laborunion. '" The prepayment may be madeby payroll deduction from the indivi­dual's wages, by an authorization to de­duct money from his credit union ac­count, or directly from the individualhimself. Structuring these plans asgroup offerings has several advantages:An easy collection mechanism of smallmonthly prepayments Is established, andthe cost to the individual Is kept low byspreading the "risk of use.'" In short,"prepaid legal seNices are to the lawwhat Blue Cross and Blue Shield are tomedicine."04

Basically, group legal seNices seNethree primary needs: (1) The costs of le­gal seNices are significantly reduced;(2) serious legal difficulties may be th­warted by periodical consultation;' and(3) group legal seNices provide accessto the legal system for those who wouldnot otherwise participate.

For the most part, prepaid legal ser·vices are being sponsored and pro­moted by three different types of organi­zations: Bar associations, labor unions.and Insurance companies. While differ·ing In some details, many similaritiesexist between the plans as noted Inf,..:IO/Al1<ansas LawyerlJanuary 1978

D1l1r1butlon 01 semce" "CIoMd PanelY. "Open Panel"

The distribution of seNlces of prepaidlegal seNices plans is provided either bya "closed panel" of lawyers, an "openpanel" of lawyers, or some combinationthereof. The American Bar Associationdefines "closed panel plans" as:

...(A)ny prepaid legal seNice planunder which (1) the attorney is the onlylawyer whose seNices are fumishedor paid for or (2) the attorney is one ofa selected panel of lawyers whose ser­vices are paid 10r.8

This "closed panel" may be composedof (1) a group of lawyers designated bythe sponsoring organization, (2) a lawfirm selected by, but independent from,the sponsoring organization, or (3) sala­ried lawyers employed by the organiza­tlon. 7

Open panel plans are those where therecipient has a free choice of tawyers.SaNices under any open panel planmay be provided by: (1) any lawyer, (2)any lawyer within a limited geographicarea. or (3) any lawyer from a panel onwhich all lawyers may enroll.•

ea....... 01 Ben.lltaAlthough variable in benefits, legal

seNice plans will generally fall into thecategories which follow; it is significantto note that costs as well as legal feesare covered in many programs.

1. Basic Benefit: Affords protection forfees, costs, and expenses Incurred bythe member or his family arising fromconsultation and advice, negotiation,conference. letter writing, documentdrafting and wills. There is is usually no

limitation as to the type of advice soughtand received.

2. Litigation Benefit: Covers fee thatarise from hearings, trials, motions, orcourt appearances before trial courts,administrative boards, or arbitrationpanels. There are maximum paymentsfor certain tasks involved in the litiga­tion.

3. Major Expense Benefit: Supple­ments the litigation benefit and coverssuch things as trial expenses, i.e., filingfees, witness fees, and discovery costs.

4. Domestic Relations Benefit: Affordsprotection for costs and fees arisingfrom marital problems such as divorce,separation, child support, and childcustody. No coverage for this categoryis provided by any other benefit Typi.cally excluded from coverage are suchthings as business ownership or opera·tion dispute, professional activities,cases in which insured is a plaintiff anda contingent fee is customarlty charged,title examination, probate or guardian­ship of assets over $5,000, unreasonableor unnecessary seNices, physically fil~

ing OUt completing, and filing tax re­turns, class actions or interventions,claims whose cost is otherwise providedfor (I.e., motor club coverage), a case ordispute against an employer, laborunion, or trustees or officers thereof, andany case or dispute against the com·pany. Generally a plan will be mal1<etedto a group as a comprehensive package.Variations will occur in the benefitamounts payable in the above mention·ed categorles.-Hillorical Beckllround

Although prepaid legal seNices as a

There maybe an angryclient onyour trail!

------ - ------...-- .

You never know when a client will threatenyou with a lawsuit ... and be hot on your trail tocollect. In view of the growing number ofclaimsand the dollar amounts paid in settlement, thetime may come when the only practicing attor­ney will be a well-protected attorney. 0 lawyer,working alone or as part ofa team, is immunefrom a lawsuit.

CNA and the Arkansas Bar Association haveworked together to come up with a comprehen­sive program ofprofessional liability insurancefor its members that helps protect both yourfinancial and professional future. First, it helpsto minimize the causes ofliability suits throughJoss prevention programs. Then, it providesfinancial protection to help guard you againstprofessional and business liability with amaximum of $100,000 per claim ($300,000 annu­ally) after a deductible.

Think you need more? Supplementalprotection of$l,ooo,Ooo for business and profes­sional coverage and $1,000,000 for personalliability is also available. Your professional survi­val may depend on adequate insurance protec­tion. Find out more about your Arkansas Bar

Association sponsored Comprehensive LawyersProfessional and Business Liability Plan, includ­ing the exclusions, any reductions or limitationsand the terms under which the policy may becontinued in force. Just send the coupon belowto the administrator: Rather, Beyer &, Harper;Three Hundred Spring Building; Little Rock,72201. Or call (501) 372-4117.

,---------------------,Please send me information for the Arkansas Bar Associa- Ilion sponsored Lawyers Professional and Business LiabilityInsunance. Send to:

Arkansas Bar Associal'ion AdministratorRather, Beyer & Harper

Three Hundred Spring BuildingLittle Rock, Arkansas 72201

Name _

Firm _

Address' _

Oty span.......~by (~~~ I

State lip IW" IL ~

January 1978/Arkansas Lawyerl2l

EXLIBRIS 1

A Complete Corporate Outfitwith the Touch of Elegance

From Excelsior-Legal

Ex Libris offers the functionalappearance of all Excelsioroutfits plus 8 contemporarylook all its own. Check theseexclusive features: luxuriouspadded cover, leather grainedvinyl in mahogany brown,corporate name embossed in24K gold, plus a unique dustproof design (see illustration).

Impressively self contained,Ex Libris gives you a totallycomplete outfit providingeverything you need for anincorporation right at yourfingertips. Exclusively fromExcelsior - the Legal SupplyInnovators.

$28.25 and $29.95

• CustomIzed Seal: Zipperpouch for quick, easyremoval.

• Slock C.rtiticaf••: (20)lithographed, imprinted andnumberec;i. Bound-in sepa­rate section with full pagestubs.

• Stock Transler Ledgers:Permanently bound-inseparate section.

• Tab Indexes: Mylar rein­forcec. Alphabetized forquick reference.

• (50) Blank M/nut. FIII.rPages: Rag content.

• Pre-Printed Minutes andBy-Laws: (OPTIONAL) Saveshours of typing time whilemaking an excellent impres­sion on your client.Includes IRS §1244, Sub­chapter S, Medical/Dentalplan, appendix of forms and20 blank pages. Blank stateset based upon Model Bus.Corp. Act. Separate editionsfor DL, FL, NJ, NY, PA, TX.

• Large o-Shaped Ring.: Leipages lie table flat and offerup 10 50% more capacity.

• Exclusl~e Corporat. RecordT/ckl.r

Excelsior's New 2-WayOrdering and Delivery . ..Extra Fast and Easy.

1. Use your American ExpressCard. Shipment arrangedwithin 24 hours from timeof order. Simply phone(212) 431-7000

2. For only $1.00 shippingcharge we will ship by UPSBlue Label (Air) or AirParcel Post, anywhere Inthe United States.

SYNDICATEDNa. 90 $38.25DNa. 95 $39.95

EXCELSIOR-LEGAL, 62 While SI., NYC 10013BLACK BEAUTY EX L1BRIS

plain filler 0 No.70 $25.25 0 No. 10 $28.25pld min & by-laws 0 No. 80 $27.00 0 No. 20 $29.95

State of ................................•.................. Year.

..........................................................................................corporate name exactly as on certificate of Incorporation

.................... 0 NPV, or 0 PV $ Capilalizelion $ ..authorized _hare. each

Certificates signed by President & . . . . . . . . . . . . . . . . . . . 0 Ship via AIR, $1.00 e>dra.o IRC §1244 55 page set, plan, inslr., etc., $3.95 extra. 0 Ship COD, include costs.

Chargeo American .............................•...........••..•...........................•...

Express number expires .ignature

Ship 10: .

24 HOUR

SHIPMENT

SHIPMENT

FREE ONPREPAID ORDERS

_Innovative Legal Supplies and Services Since 1899 _

a/Ar1<ansas LawyerlJanuary 1978

Year-End Tax PlanningFor

Capital Gains And Losses

by James E. McClain, Jr.Associate, Spltzberg,

Mitchell & Hays

IntroductionThe Tax Reform Act of 1976 ("TRA

'76") made some changes in the tax lawthat may affect traditional thinking inregard to planning for capital gains andlosses. Maxims of tax planning havebeen 1) to cause losses to be short termand gains long term, and 2) plan forshort term gains to occur in the sameyear as long term losses. These basicconcepts have not changed, but timingand limitations on the use of losses tooffset ordinary income have changed.

Longer Holding PeriodPrior to 19n, the holding period

required for long term capital gain andloss treatment was more than sixmonths. For tax years beginning in 1977,the period is extended to more than ninemonths, and for tax years beginning in1978 and later, the period is extended tomore than one year. 11222. 1

These differences in holding periodshave created some interesting planningopportunities. Consider the situation ofan individual calendar year taxpayerwho purchases property for investmenton Febnuary 15, 1977. If the property in­creases in value he can sell it for a longterm capital gain after November 15,1977. However, if the taxpayer waits andsells the property after December 31,1977 and before Febnuary 16, 1978, thegain will be characterized as short termbecause of the longer hoiding period ineffect for 1978. This is obviously contraryto the traditional notions concerningholding property for a longer period oftime in order to receive long term capitalgain treatment.

For the purpose of planning for losses,consider the same individual calendaryear taxpayer who purchases investmentproperty on February 15, 1977, and thevalue of the property subsequentlydecreases. Since it is more desirable fora loss on the sale to be characterized asshort term, the taxpayer should sell theproperty either prior to November 16,1977, or after December 31, 1977, andbefore Febnuary 16, 1977. Thus, a tax­payer holding loss property in late 1977may find It advantageous from a taxstandpoint to wait and well the propertyin early 1978.

Incl'8eHd Limit onCapltel Lo.. Deductions

TRA '76 did not alter the part of11211(b) (1) which allows individual tax­payers to deduct capital losses to the ex­tent of capital gains. There was also nochange in 11211 (b) (1) (c) (ii) which onlyallows 50% of the excess of net longterm capital losses eNer net short termcapital gains to be deducted from ordi­nary income. What was changed is themaximum limit for the deduction oflosses in excess of gains, For tax yearsbeginning in 1977, the limit is increasedfrom $1,000 to $2,000, and for 1978 andafter, the limit is $3,000. f1211(b) (2). Inthe case of married persons filingseparate returns, each of the aboveamounts is halved. 11211(b) (2).

InatellrMnt S81eaThe change in holding periods could

cause a bit of confusion about install·

ment sales. A reading of relevant codesections does not provide assistance inregard to certain situations. For exam­ple, a calendar year taxpayer sells an ap­preciated capital asset in November of1977 after holding it for ten months. Thetransaction qualified as an installmentsale under 1453. Clearly the amount re­ceived in 19n qualifies for long termcapital gain treatment, but what aboutthat received in 1978 when the holdingperiod is twelve months?

Although this point is not covered inthe amendments to the code, TaxReform Act section 1402(c) and thelegislative history are very clear and veryspecific.

It is provided that if the gain wouldhave been long term in the year of sale itwill remain long term, although pay­ments are received at a time that wouldotherwise cause the gain to be shortterm. 2

SummaryThe holding period changes generally

work to the detriment of one selling ap­preciated property and to the benefit ofone selling loss property. The increasein the capital loss limitation will bebeneficial to the taxpayer selling lossproperty. Each of the changes are im­portant in planning year-end transac­tions.

'section references are to the Internal Revenue Code 011954as amended unless othefWise stated.

2TM Relorm Act 01 1976 5eetiClll 1402(c): Stat! of the JointCommittee ClIl Taxation. 94th Gong" 2d 5ess., Geoeral Ex­planation 01 the Tax Reform Act of 1976 (19761, p.•27.

'-January 1978/Arkansas LawyerI'ZT

Vital Arkansas Law Books

Federal, National Publications

Phone901/744-8420

Federal SupplementFederal Rules DeciOOnsSupreme Coun Reponer

Blashfield on Automobile LawAppleman on Insurance LawBogert on Trusts and TrusteesFederal Practice Manual 2dFederal Jury Practice and Instruc-

tions 3d-Civil and CriminalBankruptcy Law and PracticeModern Legal FormsUniform Laws Annotated

South Western Reporter 2dArkansas Model Jury lnstructions­

Civil 2d

United States Code AnnotatedThe complete. dependable source

Corpus Juris secundumBased on all the law

West's Federal Practice Digest 2dSupreme Court DigestFederal Practice and ProcedureWest's Federal FormsWords and Phrases

For fast access to case lawFederal Reporters

Federal Reporter 2d

Arkansas CasesThe local case law you must have

West's Arkansas DigestHandy Index to all Arkansas caselaw

Many more specialized aids for you, too ~.!EGIVe your West Representative a call ~.."

Helping You Build A MoreEffective, Profitable Library

Elmer P Roberts11823 Telan Forest Drivelittle Rock, AA 72212

matters, particu larty legal malprac­tice suits.

For a short lime, lawyers will beable to take advantage of a specialdiscount if they wish to order beforepublication. More information canbe obtained on Mallen and Levit's"Legal Malpractice" by writing toWest Publishing Company, P.O. Box

3526, St. Paul, MN 55165. "

West AnnouncesNew Reference OnLegal Malpractice

West PUblishing Company hasannounced it will publish a new 650­page reference for lawyers titled"Legal Malpractice." It is authoredby Ronald E. Mallen and Victor B.Levit and is schedu led for publica­tion this Fall.

According to West, it will be thefirst major work on the subject oflegal malpractice. Every aspect oflegal malpractice will be discussedwith emphasis on liability, preven­tion, litigation and insurance.

The new publication should be ofinterest to all lawyers. Malpracticeinsu rers say that clients are now su­ing their attomeys twice as often asin 1972. As a consequence, mal­practice insurance rates for thelawyer have soared - to as muchas $1,000 per year.

The comprehensive volume givesa history of legal malpractice in thiscountry, explains why litigation hasincreased, discusses the basiccauses, and tells what the lawyercan do to preverTl malpracticeclaims. It also discloses the de­fenses available to the lawyer who isfaced with a malpractice claim. Onechapter gives valuable informationabout malpractice insurance.

The work is national in scope andreflects the reported decisions onlegal malpractice from nearly alljurisdictions. The authors have triedto cover all types of legal mal­practice, from failure to file legalpapers on time and mistakes insecurities transactions, to errors inthe legal description of property,failure to research and know thelaw, and more. The authors, RonaldE. Mallen and Victor B. Levit, havehad extensive experience in legalmalpractice matters. Levit is amanaging partner in the San Fran­cisco and Los Angeles firm of Long& Levit. He is a specialist in legalmalpractice problems and consul­tant to malpractice insurers. Mallenis a partner in the firm of Long &Levit and concentrates on litigation

2II/Arkansas Lawyer/January 1978

survived the 1972 Amendments has re­sponded in the affirmative, including theFifth Circuit in Smith v. MN CAPTAINFRED;". The Court held:

"An employee may sue his employerqua vessel if he was injured as a resultof the vessel's negligence."80

The Court accurately noted that "thebasic problem envisioned in YAKA isstill present" despite arguments that theYAKA rule was interrelated with the sea·worthiness action predominant at thetime of its inception and that since the1972 Amendments had abolished thataction they disposed likewise of therule.8~ The Court was bolstered in its ac­tion by similar decisions in two other Cir­cuits, the Third and Second, Griffith v.Wheeling Pit/sburgh Siell Corp.," andNapoli v. Hellenic Unes, Ud.,83 respec­tively, which it noted. The Griffithopinion, which Napoli followed unques­tioningly, contains a most extensive dis­cussion of the Congressional intentreflected in the Committee Reports. TheCAPTAIN FRED opinion likewise notedthe most pertinent provisions in theHouse Report which "demonstrated thatCongress intended the YAKA rule to sur­vive.";84

"The Committee has also recognizedthe need for special provisions to dealwith a case where a longshore­man... is employed directly by thevessel. ..notwithstanding the fact thatthe vessel is the employer theSupreme Court in Reed v. S.S.YAKA. ..held that the unseaworthi­ness remedy is available to the injuredemployee. The Committee betievesthat the rights of an injured longshore­man...should not depend on whetherhe was employed directly by thevessel or by an independent con­tractor,' '85

VIII. CONCLUSIONThe most prominent development in

the post-amendment tide is the almostexclusive dominance of land-based lawin the longshoreman's negligence ac­tion against the vessel, presenting adangerous coastal reef which promisesto scuttle many plaintiff's claims. Indeed, only a handfull of the many ac­tions brought under these laws havebrought, or shown promise of bringing,successful recovery. However, in view ofthe developing trend toward the liberalopen and obvious rule with respect tolandowner's liability, the application ofland-based law may not be as strict as itcould be. Most courts agree that theshipowner nevertheless retains someduty to provide a safe place to work,although the Fifth Circuit's view of thisduty is the most restrictive one yetespoused.

That the YAKA employer who is also avessel owner remains liable as a third

party despite the coverage of the Actnow seems a clearly charted course.

The Courts have begun to achieve afair degree of uniformity, as intended bythe Act, despite the nearly wholesale re­jection of maritime principles.

FOOTNOTES'Act d OCtober 27, 1972, Pub. L No. 92-576, sections 1 el

seq.. 86 Slal. 1263. emending 33 U.s.C. sections 901 el seq.(1970).

233 U.s.C. 5ections 901 et seq. (1970).'!d.033 U.s..C. 905.$J3 U.s.C. 933.il328 U.S. 85, 66 S.Ct. 812, 90 LEd.2d 1099 (1946).1Unse8WOrthlnesa Is a tradltiooal maritime cause 01 action.

"Tne unseaworthiness Indemnity remedy was looked on asan American Inl'lOYatlon, which had perhaps been stimulatedby tne English Merchants Shipping Act d 1876. which allow­ed such • f8C0Yefy. the Contioef1tal Codes restricted the sea­man to his maintenance and CUI1l alone." Gilmore and Black,The law oj Admiralty. second Edition, page 276. ThIswarranty was specillcally recognIzed In 7he Orcaoll, 189U.S. 158. 23 S.Cl. 483. 487 (1903). SM. generally, GeoI'ge.Ship's lJabillty to Longshoremen Buecl Upon Uneeaworthi­ness - Sier"adll through Usner". Vol. 1. Joumal 01 MaritimeLaw and Commerce 45. OCIober. 1971: and George. "Shlp'sLIability to Longshoremen Based Upon Unseaworthiness ­Sleracllllhrough Usner", Yol. 19, Louisiana Bar Journal 111.1971.

1350 U.S. 124. 76 S.CI. 232. 195e A.M.C. 9. (195e)'See, e.g.• NIemI v. Der NorIIW AIrllr.a-Og., 332 F.2d 651,

(2nd Clr. 1964).'OMOIt signillcanUy: 33 U.s.C. sections 902. 903 and 905

(Supp. 1912).1133 U.s.C. 905(bJ (Supp,. 1972).ll$tdth v. MN CAPTAJN FRED, S46 F.2d 119 (5th e1r. 1977):

a.y v. OC.." Trampart & 7r«1lrlg, Inc.• S46 F.2d 1233 (5thClr. 1977); Brown v. MIr.ubWII Shlnlaku Olnlr.o, 550 F.2d 331(5th Clr. 1977).

1:lQ. Gilmore and C. Blacll, The Law 01 klmlralty. 452-55(2d Ed. 1975).

'"Benedict on Admiralty, 5ec:ions 111-118, 1'9. 6-128. (7thEd. Jhlrad).

as.Rep. No. 92·1125, 92d Congress. 2d 5esslon (1912)(hereinafter cited as S.Rep.): H.R. Rep. No. 92·1141. 92dCongress, 2d 5eulon, 3 US Code Cong. & AdmIn. News p.4703 (hereinafter cited as HR. Rep. - US.C.CA.N.). TheHouse and Senate Commlnee ReportS are SlJbstantlailly iden­tical. Ylck8fY. Some Impacts of the 19n Amendments to theLongshoremen and Harbof Worf(eB' Compensation Act. 41Ins. C.J. 63. 64 n. 4, (1974) (hereinafter cited as Yiclotery).

ltH.R. Rep. _ U.s.C.CA.N. 'upra note 15 at 4703."Id. at 4705.liid. at 4704.ltld. at 4702.:!Old. al 4703.Vld. 81 4705.22385 F. Supp. 844 al 651. (N.D. cal. 1974).~ErM R. Co. v. Tot7IpkJra. 58 S.CL817. 304 U.S. 64, 82 LEd.

1188. (1938).2-0386 F. Supp. 1105 (0. of Or.. 1974).~ S.C!. 341, 381 U.S. 314, 4 LEd.2d 305(1960).2flMOf~ne v. St... Marine l..JtMe, Inc" 905 S.CI. 1m, 398

U.S. 375. 28 L.Ed~ 339(1970).27119 U.s. 199, 7 S.CI. 140 (1886).aSoufhtm P«:1ffc Co. v. .IenIen, 2<44 U.s. 205. 37 S.C!. 524

(19m.2f38O F.Supp.222 (E.D. Tel(, 1974).:IOld. at 226."545 F.2d 854 (3rd Cir. 1976).»10. at 863.:D'J58 US. 625, 79 S.CL 406, 3 LEd.2d 550 (1959).:Da 554 F~ 1237 (3m Or. 19n).S3b 554 F.2d 1237 at 1246.""c 554 F.2d 1237 at 1246-S3d 554 F.2d 1237 al 1247."'546 F.2d 1233 15th Clr. 19m.3G1d. a, 1238.:lIQ/«:one v. c.prlcom ShIpping, 394 F.Supp. 1189 (S.D.

Tex. 1975).V54SF.2d 854, at 881,Q.al(ennar.c v. eomp.gm. G.,..el Tramallant/que, 358

U.s. 625, 70 S.CL G, 3 L-€d.2d 560 (1956).ald. at 830-32. 409.OGH.R. Rep. - U.S.C.CA.N., IUpt'e note 15. at 4699, 4702-~

"380 F.Supp. 222 at 226. see also text at note 29.~ F.Supp. 4. (E.D.La. 1974).~ F.$upp. 844 (N.D. caL 1974).""see Fllzp.,aJd V. CompattIa Navlere ~ MoHnwe, 394,

F.Supp. 413 at 415 (E.D. La. 1975), wh8fe Judge Rubin aaldthat "Congress hal manllested Its intention that a IIndlng 01

negligence requires. ahowlng of the kind of negligence thathas been millonal In land elMS rather than the very liberalcriteria lor Jones Act negligence."

~1 F.Supp. 1143 (0. MD. 1975).*394 F.$upp. 1092 (O.Md. 1975).01:)Jl F.Supp. 1143. 1146."391 F.5upp. 1143. 1148."'Peculiar rlsk doctrine places a duty upon s pEHSOn who

employes an Independent contlW:tOl'. to take special precau­tions. due 10 tne lact that the work performed by the inde­pendenl contractor is likely to create. during Its progress. apeculiar unre8500able risk 01 physical harm to ot!'lefs.

-'0391 F.Supp. 1143, 1149-60.51391 F.Supp,. 1143, 1145.uRobertlOn, Negligence Actions by Longshoremen

Against Shlpo.yners Under !he 1912 Amendments to theLongshoremen and Harbor Workers' Compensation Act, 7J. Mar.L&C. 447 (1976). see. also. Roberlson. "JurisdictionShipowner Negligence and Sl8llectore Immunities under the1972 Amendmenls to the Longshoremen's Acl", Mercer LawAeYiew, Yol. 28, Winter 19n, Number 2.

53391 F.Supp. 1143 (D. Md. 1975).~ F.2d 757 (4th Clr. 1976).~ F.2d 505 (2nd Cir. 1978).)tid. at 508.51/d.~ 546 F2d 1233 (5th Cir. 1977).~Id. al 1238.1IOH.A.Rep. _ U.S.C.CAN. 4705.11545 F.2d 854 (3rd Cir. 1976).1JiI1d. at 863-64, n. 10.128 Hess II. L/ppef Mississippi Towing Corp. /lb. 75-4353

(5th Cl,. sept. 23, 1977).

"" !d.Uo !d.IJiId /d.6JH.R.Rep. _ US.C.C.A.C., supt, oote 15, at 4699."&own V. Mhsubl&h/ ShltllMu Glnlr.o. 550 F.2d 331, (5th

Gir. 1977).I6Marant V. Farrell Unes, Inc.. 550 F.2d 142 (3rt! Clr. 1977).-379 F.SUpp. 759 (E.O. Penn. 1974).111d. at 7l1J.w.385 F. Sopp. 844 at 653 (N.D. cal. 1974).I14n F.2!l 211 (5th Gir. 197:1).7fJ1d. at 213.1'382 F. Sopp. 4 (E.D. La. 1974).nld. at 6.13546 F.2d 1233 (5th Clr. 1977).told. al 1239.~R. Rep. _ U.s.C.C.A.N. 8t 4705."Brown V. Mhsublsh/ ShltllMu Glnlr.o, 550 F.2d 331, (5th

Cir. 1977).11, Hess V. Upper Mississippi Towing Corp. No.75-4353 (5th

Cir. Sept. 23, 19m.

"" !d.T7Maram v. Fmefl Unes, Inc .. 550 F.2d 142. (3rd Gir. 1977).na Hurst V. 7rlM1 Shlppirlg Co. 554 F.2d 1237 (3rt! Clr. 1977)

81 page 1248.l1b 554 F.2d 1237 (3rd Clr. 19n).l1C /d. at 1250.11d Munoz V. FloflJ MfHCharte GrancoJombfMla. 553 F.2d

837 (2nd Clr. 19m.ne /d. 81841.nl/d.11373 U.S. 410 (1963).1t546 F.2d 119 (5th Clr. 1977).IOld. at 123.Illd. at 121.~1 F.2d 31 (3rd Cir. 1975), cert. denied. 423 U.S. 1054.96

S.C!. 785, 46 L.Ed.2d 643 (1976).13536 F.2d 505 (2nd Cir. 1976)."546 F.2d 119. 123-I&H.R. Rep. - US.C.CAM. 8t 4698, llootnotes omItted).

(Editor's NOTE: - Coincidenlly, afterthis article was selected for publication,Chairman Gordon S. Rather, Jr. of theArkansas Bar Association's MaritimeLaw Committee proposed a related LH­WCA seminar. The seminar has beenscheduled for Friday, December 9, 1977at Ihe Worthen Bank Building, UtileRock. Interesled lawyers should plan 10

aNend.)~

January 1978/Arkansas Lawyer/25

Longshoremen. ..continued from page 23gress decided "that the primary duty toprovide a safe place to work is on thestevedore...Courts should recognizethat this duty falls primarily on thestevedore and not on the vesselowner",57 The rationale for the im­position of such a primary obligationwas discussed by the court in Ramirez v.Toko Kalun K.K.:

"The primary responsibility for thesafety of the longshoremen lies withthe stevedoring company. It is in theposition best to provide for the safeunloading of the cargo. The steve­doring company is hired for its exper­tise in handling cargo safely and itspersonnel make all of the decisions asto how best to conduct the un­loading.....This shift of the duty is a change from

the pre-1972 state of the law under whichthe vessel had a non-<lelegable duty toprovide a safe place to work. As the caselaw now indicates, that duty has beenshifted primarily to the stevedore, thevessel being held to the duty only ofturning over the ship in a conditionreasonably safe for use by the steve­doring company. In Brock v. CorsIDrilling, Inc.,'. the Court of Appeal forthe Fifth Circuit stated that such achange "prevents a shipowner frombeing liable for injuries which are reallythe fault of the stevedore.70 The mostcommon statement of the consequenceof breaches of duties owed by the steve­dore as they affect the owner is con­tained in Crowshaw:71

"The shipowner is not liable fordangerous conditions created by thestevedore's negligence while thestevedore has exclusive control overthe manner and area of work."72

This language was confirmed in Gsyv. Ocesn Trsnsport & Trading, Ud.73

Gay argued that the vessel was liablesince a federal safety regUlation hadbeen violated. The Court consideredsuch a position tantamount to imposinga non-<lelegable dUty of providing a safeplace to work and rejected it because..this (was) exactly the type of liabilitywithout fault concept from whichCongress sought to free vessels by thepassage of the 1972 Amendments.""The Coun held that any violation of thesafety regulations involved was sotely onthe part of the stevedoring contractorand a holding for the shipowner resulted.

Nevenheless, some cases correctlyrecognize that the vessel owner is stillobligated to some extent to provide asafe place to work. In this respect theCommittee Repons dictate:

"Permitting actions against the vesselbased on negligence will meet the ob­jective of encouraging safety becausethe vessel wilt still be required to exer­cise the same care as a land based

:M/Art<ansas Lawyer/January 1978

person In providing a sefe place towork." (Emphasis added)."Confusion exists chiefly in regard to

the extent of the remaining duty inproviding a safe place to work. As thisduty has been associated traditionallywith the dUty to provide a seawonhyship, some couns have concluded flatlythat no such duty exists. Others havestated it exists on a reduced scale. Twocases have flatly stated that a duty toprovide a safe place to work does notexist. These cases, Crawshaw andRamirez, are wrong in SO holding as theyhave obviously confused the dUty in gen­eral and equated it with the doctrine ofunseaworthiness.

Brown v. Mitsubishl Shintsku Ginkol'is the latest expression of the Fifth Cir­cuit on this question and, it is submitted,an unfortunate one, as well. The Courtthere held "there could be no dUty owedby the ship to (plaintiff) as a matter oflaw, even If the ship's crfNI was aware ofthe danger' ...., where a showing couldbe made by the shipowner that:

"(1) the hazard was solely the productof the stevedore's work on the shipand"(2) the ship's personnel were far lesscapable of correcting the situationthan the stevedore's own employees,who knew about the danger and re­fused to rectify it - ".Had Congress intended this resul~ it is

inconceivable that it would have placedsuch substantial emphasis upon the dutyof the vessel "to exercise the same careas a land-based person in providing asafe place to work."

The Third Circuit has recently handeddown a similar decision in Marant v.Fsrrell Unes, Inc."

Had Congress intended this result it isinconceivable that it would have placedsuch SUbstantial emphasis upon the dutyof the vessel "to exercise the same careas a land-based person in providing asafe place to work." This has apparentlynow been recognized by the Fifth Circuitin its latest decision, Hess v. UpperMississippi Towing Corp.I'a in whichthe coun held that the vessel is still un­der a land-based law duty to provide itsinvitees with a safe place to wone TheCourt observed, in correctly distinguish.ing the maritime strict liability concept ofunseawonhiness from the land-basedduty to provide a safe place to work:

"To the extent that doctrine (the dutyto provide invitees with a safe place towork) encompasses liability withoutfault. a maritime concept. it no longerapplies under 905(b). The doctrinedoes however have land-based cou n­terpart based on negligence." 76bThe Third Circuit has recently handed

down two similar decisions. In Marant v.Ferrell Unes. Inc." The Third Circuitheld that "the primary responsibility forlongshoremen's safety was on the steve-

dore" and that it was error for the districtcoun to have charged the jury that theresponsibility rested "jointly" with thestevedore and the shipowner. Consis­tently with its decision in Marant, theThird Circuit has refused to apply Sec­tion 318 of the Restatement (Second) ofTons which would "impose upon theshipowner a duty constantly to overseethe stevedore's method of operation inorder to prevent any dangerous condi·tions created by the stevedore fromthreatening the stevedore's own em­ployees or others.""a In Hurst v. TriadShipping CoJ7b the Court rejected ap­plication of Section 318 and adopted in­stead the general rule of Section 409,that "the employer of an independentcontractor is not liable for physical harmcaused to another by an act or omissionof the contractor or his servants." In theThird Circuit's view, a shipowner "can­not be held liable for the stevedore's un­safe method of operation, ""c under thegeneral rule of Section 409 of the Re­statement (Section) of Torts.

The Second Circuit has also rendereda recent decision in this area in confor­mity with the views expressed by theThird and Fifth Circuits. In Munoz v.Flota Merchsnte Grancolombisna"d theSecond Circuit held that "a shipownercannot be liable in damages when herelinquishes control of the hold, then in areasonably safe condition. to an experi·enced stevedore...and the s1evedore'snegligence creates a latent dangerouscondition unknown to the owner, uponwhich a longshoreman is injured.77e TheCourt refused to impose a dUty on thevessel owner to discover and correct"hidden defects" because to do sowould "ri5l«s) return to the concept ofliability without fault. ..which CongressSO emphatically and recently rejec­ted."f

VII. THE EMPLOYER ASSHIPOWNER OR OWNER PROHOC VICE AND VICE VERSA

As it did before the 1972 Amendments,the Act provides that the liability of anemployer "shall be exclusive and inplace of all other liability of any em­ployer to an employee." The exceptionto that promise of exclusivity. which ap­plied to impose liability In ton against anemployer who was also the owner of thevessel, derived from and is commonlyknown as the rule of Read v. The SISYAKA!' The YAKA rule was developedduring the Sieracki-Ryan period to treatequally those employees injured uponvessels regardless of whether they wereemployed through a stevedore or direct­ly by the vessel. Under the rule, a long­shoreman could sue a vessel owner whowas also his Compensation Act employ·er in every case where the same vesselcould be liable if not his employer. Everyappellate cou rt which has consideredthe question of whether the YAKA rule

The Napoli Court was persuaded thatobviousness of danger alone should notrelieve a defendant of responsibility forunreasonable risks where it was theshipowner and not the invitee who was"the person able to anticipate andprevent harm from the obvious danger orpremises under his control." The Courtfelt that the strict rule, which was "reallya commingling of the doctnnes of negli­gence, contributory negligence. andassumption of risk" was particularly in­appropriate in this context, which by theclear language of Congress should begOllerned by comparative negligenceand not allow assumption of risk as a da­fense. The Court then quoted and ap­prOlled of the newer section 343(A) ofthe Restatement of Torts, Second, em­phasizing its proviso. which it felt was"illustrative of the 'more modern trend ofopinion'... The fact that "there wasevidence from which a jury might con­clude that the ship should reasonablyhave anticipated that Napoli would notbe able to avoid the danger despite itsobviousness" and that "if this was theonly place for Napoli to ...carry out hisjob, the vessel might reasonably an­ticipate that he (Napoli) would use itdespite its obvious danger" seems alsoto have mOIled the Napoli Court.

The Napoli case significantlyliberalizes the longshoreman's right ofrecovery and broadens the shipowner'sduty and the logic of the Court's opinion,similar to that which moved the Ameri­can Law Institute to revise Section 340 ofthe First Restatement into the fonmula ofsection 343 and 343(A), is persuasive.The admiralty comparative negligenceconcept, as the court reasonablyrecognized, brings additional force tothe argument for the liberal rule.

The Fifth Circuit followed theAnusz8Wskl and Napoli decisions in Gayv. Ocaan Transporl & Trading, Ud." TheCourt was mOIled "in the interest offulfilling the Congressional desire of uni­fonmity" and adopted the Restatementapproach oullined in section 343(A)." In50 doing, the court seems to have over­ruled sub silentio many lower court deci­sions in the circuit which had begun toestablish a trend in the other direction.Unlike the second and Fourth Circuits,the Fifth Circuit had not been aided by alower court decision previously adoptingthe liberal approach. The Court in Gayexpressly confirmed the Napoli reason­ing that the strict open and obvious rulebore too great a resemblance to the de­fenses of assumption of risk and con­tributory negligence which Congresshad indicated were inappropriate in thisarea.5O

V, THE SHIPOWNER ASEMPLOYER OF AN INDEPEN­

D£NT CONTRACTOR ANDLIABILITY FOR PECULIAR

RISKS

The Third Circuit in Brown v. fvaransRaderl, AIS," rejected Section 416 ofthe Restatement as inapplicable againstthe vessel owners as third parties underthe Longshoremen and Harbor Workers'Compensation Act because that Sectionappears to be based on a concept ofvicarious liability, without fault, in situa­tions involving a "non-delegable"duty.52. section 416 is the Restatementexpression of the "peculiar risk doc­trine," applied as one of many excep­tions to the "general" rule that an em­ployer of an independent contractor isnot liable for injuries resulting from theactivity or negligence of the contractor'semployees. This doctrine had earlierbeen rejected by the Anusz8Wskl Courton two grounds. The Court observed thatstevedoring, in the ordinary sense,should not be seen to involve "peculiarrisks" as that term is used in the Re­statement provision. Secondly, the Courtfound, assuming that the unloading ofships is per sa a peculiar risk, long­shoremen Involved in that activity shouldnot be regarded as "others" whom theprOllision is designed to protect by im­posing liability.

In its very recent decision in Hess v.Upper Mississippi Towing Corp.52a theFifth Circuit rejected the application ofland-based rules of law which would im­pose liability on the employer of an inde­pendent contractor, for the latter's neg li­gence, in situations in which the workundertaken involves an "ultrahazard­ous" or dangerous activity. The plaintiffin Hess, who was the employee of an in­dependent contractor, (the stevedore),sought to rely upon sections 411, 413,416, 423, and 427 of lhe Restatement ofTorts (second), all of which, like section416, are exceptions to the "general" rulethat an employer is not responsible forthe negligence of an independent con­tractor. The Court held that the plaintilfcould not base his action on these sec­tions of the Restatement because they"only impose liability with respect tothird parties."62b Using the same ration­ale as that used by the Anusz8WsklCourt, the Fifth Circuit was of the viewthat the employees of an independentcontractor were not "third parties" towhom the cited sections were intendedto afford protection. The Court stated:

"The purpose of imposing a duty ofcare on the employer of an inde­pendent contraclor is to insure that hisenterprise will bear the cost it createsand will not escape liability formishandling of inherently dangerouswork by delegating It to an inde­pendent contractor...the employer's

liability should not encompass injuriesto the employees of the independentcontractor because, under workmen'scompensation laws, the contractor isalready strictly liable for their C051....2C

Thus the employees of an independentcontractor are already protected by aworkmen's compensation law, in thiscase, the Longshoremen's and HarborWorkers' Compensation Act, and had noneed for the further protection offered bythe Restatement exceptions to the gen­eral rule. As the Tentative Draft of theRestatement (second) of Torts submits,as quoted by the Fifth Circuit:

"It is to be expected that the cost ofthe workmen's compensation insur­ance will be included by the con­tractor in his contract price for thework, and so will in any case ul­timately be borne by the defendantwho hires him."82d

VI. PROVIDING A SAFEPLACE TO WORK - RESPON­SIBILITY OF SHIPOWNER OR

STEVEDORE?The Committee Reports rather clearly

delineated the safety objectives behindthe passage of the 1972 Amendments:

"(A)dequate workmen's compensationbenefits, - •• by assuring that the em­ployer bears the cost of unsafe condi­tions, serve to strengthen the em­ployer's incentive to prOlllde the fullestmeasure of on-the-jOb safety." ...It is the Committee's view thatevery appropriate means be appliedtoward improving the tragic and in­tolerable conditions which take such aheavy toll upon workers' lives andbodies in this industry and suchmeans clearly include vigorous en­forcement of the Maritime SafetyAmendments of 1958 and the Occupa­tional Safety and Health Act of 1970,as well as a workmen's compensationsystem which maximizes the in­dustry's motrvation to bring aboutsuch an improvement"63Several cases have passed upon the

nature of the duty imposed uponstevedores under the amendments.Such a dUty is very important in deter­mining exactly what duty, if any, thevessel has breached in a given accidentIf the negligence which causes the in­jury was a breach 01 a duty owed only bythe stevedore, obviously the vessel willnot be chargeable with actionablenegligence under 905(b). Recent deci­sions of the Fifth Circuit&' and the ThirdCircuit65 make it clear that the duty toprovide a safe place to work is almostexclusively the stevedore's, a result, it issubmitted, never intended by Congressin enacting the 1972 amendments to theAct.

It has been held in Lucas v."Brlnknes" Schlffharls Gas." that Con­

continued on paga 24

January 1978/Arkansas Lawyerl23

Longahoremen, , .continued from page 21

mittee Report, upon which the Circuitcourts have relied so heavily, should beinterpreted narrowly since they reflectedonly the concern of Congress to do awaywith the peculiarly maritime seaworthi­ness duty and did not require the whole­sale incorporation of land law.36 Thisargument has not been persuasive. TheGay, Napoli and Anuszawskl courts didnot even meet it. Brown v. IvaTans, theonly decision applying maritime law,does so without explanation. The Browncourt was careful to reject the applica­tion of state law in interstitial areas be­cause of the Committee emphasis, aswell as that of the general maritime law,upon uniformity. Perhaps a similar sub­conscious reasoning prompted itsrefusal to consider land law. it Is not im­possible, however, to apply generalprinciples, such as those embodied inthe Restatement, to effect a harmonyamong the circuits as the concurrenceof the second, Fourth and Fifth Circuitsdemonstrates. Restatement of Torts,second, section 343 and section 343A,now applies in all of those circuits andthis standard compares favorably withthe less precise Kermarec36 standard of"reasonable care under the circum­stances"" in its capacity to promoteeven results.

The problem has centered, however,on Just how far a shipowner may beimmune from liability for dangers whichare "open or obvious", as landownerseffectively are, in view of the intendedpurpose of the Act to maintain the ship­owner's incentive to promote safety.40

IV. THE SHIPOWNER'SLIABILITY FOR OPEN AND

OBVIOUS DANGERSIn the Hlle case, the coUrt attempted to

divine a consensus of the law of the vari­ous maritime states in connection withthe body of Federal law developed inthird-party litigation involving vesselowners prior to Sieracki. The Court for­mulated its rule in these terms:

"The owner of a premises who corr­tracts with an Independent contractor(business Invitee) to perform servicesfor the owner upon the owner's prem­ises owes a duty to the independentcontractor and his employees to exer·cise reasonable care to have thepremises in a reasonably safe condi­tion for use by the independent con­tractor and to give said contractorwarning of any concealed or latentdefects that are known by the ownerand not by the independent contractor.The owner of a premise is under nodUty to wern the independent contrac­tor or his employees of dangers oropen end obvious defects which areknown to the Independent contractoror his employees or which could be

22/ArI<ansas Lawyer/January 1978

readily observed by said employees inthe exercise of ordinary care. "41

Similar results have been reached innumerous post-Amendment cases, in­cluding Fedlson v. The Vessel Wlslicr2

and Ramirez v. Toko Kalun K.K.43 Underthe Fedlson Court's view of the "openand obvious" land-based rule, a holdingfor the shipowner results, without furtherinquiry, when the danger is shown to beopen and obvious or known to the vic­tim....

Thus, many of the early new Act casesin the District Courts viewed section 343of the Restatement of Torts narrowly andheld for the shipowner without furtherinquiry when the danger was shown tobe open and obvious or known to theplaintiff.

An increasing number of decisions,however, would impose liability upon theshipowner if It should have realized thatdespite such knowledge or obviousnessthe longshoreman would not be protect­ed or would not protect himself. This lineof thought is typified by Anuszewskl v.Dynamic Mariners Corp. PanamlJ'5 andFresca v. Prudentlel Grace Unes, Inc."

In Anuszawskl, the Court found for theshipowner, holding that it was not fore­seeable to the shipowner that the long­shoremen would not protect themselvesagainst the open and obvious conditioninvolved. But, in so holding, the Courtapplied section 343(A) of the Restate­ment41

A possesor of land is not liable to hisInvitees for physical harm caused tothem by any activity or condition onthe land whose danger is known or ob­vious, unless the possessor shouldantlclpale Ihe harm desplle suchknowledge or obviousness." (Em­phasis added)The Court made it clear that the ex­

ception to the strict open and obviousrule would not protect the longshoremanon the Anuszewskl facts as "thepresence of the unfastened beam was amost evident and continuing conditionwhich may have been largely Ignored bythe longshoremen but hardly entirely for­gotten."". Also distinguished was the"pecUliar risk" doctrine," the Courtnoting that If there was a "pecUliar risk"in this factual context, it was posed notby the nature of the unloading duties, butby the beam itsell - the offendingcondition.

In Fresce, one of the better-reasonedopinions among the new Act cases, theCourt observed that the restrictive viewof the landowner's duty contained insection 343 of the Restatement of Torts,second, "has eroded In many states withthe passage of time." It further observedthat the so-called" 'modern view' of theowner's duty Is that the obviousness orknowledge of the danger by the plaintiffdoes not necessarily relieve the owner of

its obligation to take further precautionsto remedy a danger; a mere warningmay not suffice. "50

The Frasca opinion sets out the follow­ing distillation of the land-based rules,adopting the modern view:

"In summary, under the modem view,the landowner will be liable to his in­vitees, for his failure to exercisereasonable care to protect themagainst a dangerous condition of theland if:"(1) The owner knows of the conditionor should know of it in the exercise ofreasonable care; and"(2) The owner should realize that thecondition involves an unreasonab~

risk of harm to invitees; and"(3) The owner (a) should expect thatan invitee will not discover or realizethe danger, or (b) if the danger isknown or obvious to the invitees,should expect that they will not protectthemselves against It or should othar­wise anliclpale the harm desplle suchknowledge or obviousness."Restatement (second) of Torts, secs.343, 343(A) (1965)." (Emphasis add­ed)"Indeed, the liberalized modem rule

seems more compelling even on strictlylogical grounds. In his excellent articleon this subject, Professor Robertson ofthe University of Texas Law Schoolpoints up the conflict between earlier de­cisions adopting a narrow constructionof the rule and the Committee Reports'express direction that the defense of"assumption of risk" will not be avail­able to the shipowner in new Act cases.In his view, the "modem view" is moreappealing and eliminates some of thedirect conflict which arises between ap­plication of the strict "open and ob­vious" rule and the Committee Reports'direction that the defense of assumptionof risk will not be available.52

A shift to the more liberal modem ruleis clearty discernible in the first wave ofappellate court decisions. The Anuszew·skf53 decision has been affirmed in a percuriam opinion by the Fourth CircuitCourt of Appeals." The second Circuitin Nepoll v. (Trenspaclflc Carriers, etc.)Hellenic Unes," overturned a DistrictCourt decision in which the jury hadbeen instructed to apply the "traditionalrule of land-based negligence...thatthere is no obligation to warn an inviteeof dangers which are known to him orwhich are so obvious that he mayreasonably be expected to discoverthem himself."" The second Circuitpanel stated:

"(W)e do not think that instructionswhich flatly negate the dUty to protectagainst obvious danger properly por­tray the present-day obligations owedby a landowner to one whom he in­vites upon his premises."57

(citations omitted)...""The vessel will not be chargeablewith the negligence of the stevedoreor employees 01 the stevedore. "20The negligence action under con-

sideration does, however. envision theapplication of certain principles of mari­time law:

"In that connection, the Committee in­tends that the admiralty concept ofcomparative negligence, rather thanthe common law rule as to contribu­tory negligence, shall apply in caseswhere the injured employee's ownnegligence may have contributed tocausing the injury. Also, the Com­mittee intends that the admiralty rulewhich precludes the defense 01assumption 01 risk...shall also be ap­plicable.""

II. THE SOURCE ANDSUBSTANCE OF THE

NEGLIGENCE STANDARD EM­BODIED IN AMENDED

SECnON 5The question of sources from which

tile so-called land-based standard is tobe derived was initially a most trouble­some one in the cases. It is rather clearthat, as stated in Ramirez v. Toko KalunK.K.,'12 a "court must not be bound bythe law of any particular state". This istrue, notwithstanding the Erie23 doctrine,in view of the congressional mandatethat the negligence standard 01 Section905(b) be determined as a matter ofFederal Law. An attempt was made to in­voke state law standards in Birrer v.Flota Mereante Grancolomblana" ontile theory that the nalional standard im­posed by Section 905(b) was merely aminimum one which left courts free toapply S1ricter S1andards 01 state law. Theplaintiff sought to use the very strict dutyimposed on employers by the OregonEmployers' Liability Act which had beenapplied in Hess v. United States." The

court correctly distinguished Hess as acase 01 the pre-Moragne>< era whichsaw Federal Courts adopt state remediesfor wrongful death in order to circumventthe awkward rule 01 The Harrisburg."barring such actions under admiraltycommon law. It instead emphasized thewell settled Jensen principle which man­dates uniformity in maritime law.28

In one 01 the early cases passing uponthe subject, Hlte v. Maritime OverseasCorporation," the district court decidedthat the body 01 Federal law developedin pre-amendment cases involving thirc~

party actions combined with a "con­sensus of the law of the various maritimestates" constituted the proper source.The district court stated "that Congressclearly intended third-party suits to begoverned by uniform land-based negli­gence concepts" with certain maritimelaw exception.30

The initial tide of appellate court de­cisions confirms for the most part thelower court trend which accumulated inlavor of the application ot land-basedlaw. Only one 01 the four circuits whichhave considered the problem hasreferred to maritime sources of negli­gence law rather than land-based law. InBrown v. Ivarans Rederl AJSlI the ThirdCircuit refused to liken the shipowner toan employer 01 a subcontractor govern­ed by Section 416 01 the Restatement ofTorts, Second. Its view was that theproper source 01 authority lor tile 905(b)negligence action were those principles"adopted in the admiralty lield"32 andexemplified by Kermarec v. CompagnieGeneral Transar/ant/que.33

However, in its most recent decision,Hurst v. Triad Shipping CO.,33a theThird Circuit has agreed that "Congressintended land-based principles to ap­ply"33b to the 905(b) negligence action.The plaintiff in Hurst had urged the Court"to apply the standard (of negligence)

embodied in maritime negligencecases...decided before the 1972amendment of Section 905(b), whichanalyzed the tort on the basis of theshipowner's 'non-delegable dUty' toprovide a sale workplace lor longshore­men..."33C This the Third Circuit de­clined to do, observing, without ex­pressly overruling Brown, that it was

" ...obvious, ... , that the traditional,expansive maritime tort liability isnot. ..to be judicially imported intoSection 905(b) under the guise of 'non­delegable dUty' or 33d any othersynonym lor liability without lault."The Restatement has fared better in

the other circuits. The Fifth Circuit inGay v. Ocean Transport & Trading,Inc.34 summarized the situation (with norelerence to Brown) thusly:

"(T)he Second and Fourth Circuitshave already faced the problem beforeus and have agreed that land basedprinciples are to guide.. .Anuszewsklv. Dynamic Mariners Corp., 540 F.2d757 (4th Cir. 1976); Napoli v. HellenicUnes, Ud., 536 F.2d 505 (2nd Cir.1976). Moreover, those circuits haveboth relied upon the Restatement(Second) 01 Torts...we, too, adopt theRestatement formulation. "35

There seems to be little doubt that theapplication of land-based law, as dic­tated by Gay, Napoli and Anusz_sklwill continue to dominate the Section905(b) negligence action. The courtshave analogized tile shipowner to theowner of land and looked to the Restate­ment provisions which set out the land­owner's duty to an invitee in order todescribe the shipowner's obligations toa longshoreman. This seems a generallyreasonable. if sometimes difficult andeven tortuous, approach to the problem.It was early suggested that the refer­ences to land-based law in the Com-

continued on page 22

James A. George Is a member of the Baton Rouge, Louisiana firm of Georgeand George, Ltd., and the Jennings, Louisiana firm of Arnette and George.He is a member of the Baton Rouge, Jefferson Davis Parish, Louisiana andAmerican Bar Associations, and is also a member of the Southeastern Ad­miralty Law Institute and the Maritime Law Institute of the United States. HeselVes as Chairman, Committee on Continuing Legal Education, LouisianaState Bar Association. The author gratefully acknowledges the excellent as­sistance of Mr. Vince DeSalvo for his Invaluable assistance in preparing thisArticle.

January 1978/Arkansas Lawyer/21

THE CONTENT OF THE NEGLIGENCE ACTION BYLONGSHOREMEN AGAINST SHIPOWNERS UNDER THE

1972 AMENDMENTS TO THE LONGSHOREMEN

AND HARBOR WORKERS' COMPENSATION ACTBy James A. George

Admiralty lawyers, like ship's cap­tains, do well to watch closely the tidalchanges in their respective seas sincethe sea of admiralty law shifts and swellsno less than its geographical counter­part. Recent cases under the 1972Amendments' to the Longshoremensand Harbor Workers' CompensationAct,' like a swiftly falling gUlf tide, haveexposed new areas of "land law" uponwhich the unwary may founder and haverevealed currents of which the watchfulmay take advantage. This article at­tempts to chart the judicial reefs andcurrents created by the 1972 Amend­ments affecting the negligence action bya longshoreman against a vessel.

I. HISTORICAL BACKGROUNDSection 5 of the original compensation

Act' provided that an employer's liabilityfor compensation was to be "exclusiveand in place of all other liability" to anInjured longshoreman. The Act alsoprovided that an employee could recoverfrom a third person if his negligence wasthe cause of the employee's injuries,'and that the employer paying the com­pensation had a lienS on the recoveryobtained by the employee in such an ac­tion for the amount of compensation hehad paid. Seas Shipping Company v.S/erack/6 added a new twist by allowinga longshoreman to recover from a ship­owner under the then newly revived doc­trine 01 unseaworthlness.7 Ten yearslater, the Supreme Court held In RyanStevedoring Co. Inc. e. Pen-AtlanticSteamship Corporation,. that a ship­owner could recover for any amount hewas forced to pay on a Sieracki claimbecause of an implied warranty of work­manlike service running from the steve­dore-employer to the ship-owner.• Thethird party action- indemnity circlecreated by Sieracki and Ryan effectivelyeliminated the exclusivity provisionwhich was the quid pro quo initiallygiven to the stevedores in the passage ofthe Act.

The stevedoring industry sought legis­lative relief and was successful, when in1972 Congress passed the Amendmentsunder discussion in this article. Victoryfor the stevedores was embodied in anew provision prohibiting Indemnityfrom stevedore to shipowner for lossesfrom longshoreman Injury on the ship.Shipowners consented because the

2ll/Arkansas Lawyer/January 1978

amendments relieved them from theheavy warranty of seaworihiness withrespect to longshoremen and longshore­men agreed to these legislative con­cessions in return for a much higherscale of compensation benefits.

This article will address only one ofthe several significant changes wroughtby the 1972 Amendments'. - the con­tent of the negligence action against theship under Section 905(b) with whichlongshoremen are left after the abolitionof the seaworthiness action previouslyexisting in their favor '1 - by examiningthe first wave of cases under the new

(EDITOR'S NOTE: James A.George Is a noted author of arll­cles on maritime law. This ar­ticle first appeared In theLouisiana Bar Journal (June,1977). We appreciate the per­mission of the Louisiana StateBar Association and Mr. Georgeto reprint the article here. Mr.George has updated his arllcleto Include the latest 1977 cases.)

Section 905(b), including several recentdecisions of the United States Court ofAppeals for the Fifth Circuit which bearsignificantly upon this area.~2

II. THE COMMITTEE REPORTS- EMPHASIS UPON LAND·

aAIED PRINCIPLES OF LAWDespite early arguments favoring the

application of Jones Act principles13 orGeneral Maritime Law'" the judicial con­sensus has settled upon principles ofland-based law as the mainstay of thelongshoreman's remedy against ship­owners. This result was foreshadowedby the many references to such principlein the senate and House CommitteeReports" upon which recent decisionshave relied heavity. Accordingly, it is inorder to examine those Reports in somedetail before proceeding to a discussionof the post- amendment decisions.

The ostensible purpose of the Amend­ments was "to place an employee in­jured aboard a vessel In the same posi­tion he would be If he were Injured Innon-maritime employment ashore. inso·tar as bringing a third-party damage ac­tion is concerned and not to endow him

with any special maritime theory ofliability or cause of action under what­ever judicial nomenclature iI may becalled, such as 'unseaworthiness', 'non­delegable duty', or the like."'.

The negfigence standard under theNew Act is to be uniform and determinedas a matter of federal law:

" ...(Dhe Committee does not intendthat the negligence remedy authorizedin the bill shall be applied differently indifferent ports depending on the law ofthe State in which the port may belocated. The Committee intends thatlegal questions which may arise in ac­tions brought under these provisionsof the law shall be determined as amatter of Federal Law."17

The standard is to be derived fromland-based standards of negligence,and is designed to establish the rights ofboth the longshoreman and the ship­owner as the same set of rights andobligations obtaining in a similar landcontext:

" ...The Committee intends that onthe one hand an employee injured onboard a vessel shall be in no lessfavorable position vis-a-vis his rightsagainst the vessel as a third party thanIs an employee who is InjUred on land,and on the other hand, that the vesselshall not be liable as a third partyunless it is proven to have acted or tohave failed to act in a negligent man­ner such as would render a land­based third party in non-maritime pur­suits liable under similar circum­stances,"'8There Is to be no recovery under

"liability without fault":"The Committee elso rejected thethesis that a vessel should be liablewithout regard to Its fault for injuriessustained by employees covered un­der this Act whife working on boardthe vessel."'.The vessel will not be liable for the

acts or omissions of the stevedore whilehe has control of the areas in which he Isperforming his services:

"Thus a vessel shall not be liable Indamages for acts or omissions ofstevedores or employees of steve­dores subject to this Act. (citationsomllted); or for the manner or methodin which stevedores or employeessubject to this Act perform their work,

In J¥lemortamThey that be wise shall shine as the brightest of the firmament.

Daniel 12:3

AMIS A. GUTHRIDGEAmis R. Guthridge, native or Hot

Springs, died at Little Rock on Sep­tember 17, 19n at the age of 68.

He was graduated from the Universityor Arkansas and the Washington LawSChool at SI. Louis. He then began hislaw practice in 1951 at Little Rock.

He was affiliated with Capitol CitizensCouncil and White America, Inc. Heserved as attorney for White America un­til it merged with the Council In 1956.

Mr. Guthridge was a member or thePulaski and Arkansas Bar Associations;Arkansas and American Trial LawyersAssociations; and a member or theHighland Heights Presbyterian Church.

Survivors include his wife, EllenParker Guthridge; two sons. LawrenceA. Guthridge, Little Rock, and Bob Guth­ridge. Pine Blull; a daughter, Jane New.Russellville; two sisters. Mary Ruth Ar­nold. Fort Smith, and Mrs. Roy Gardiner,Califomia; and six grandchildren.

JUDGE LAWRENCE NELL REEDL. Neill Read, an earty pioneer 01 Cle­

bume County. died OCtober 1, 19n atage 84.

Judge Read graduated from theUniversity 01 Arkansas and attended Ar­kansas Law SChool belora entering WWIto serve as a naval aviator. Alter WWI,he graduated from Cumberland Univer­sity School or Law and began his lawpractice in Heber Springs.

He heel served as district deputyprosecuting attorney In Heber Springsbefore moving to Blytheville where heserved as Mayor. deputy prosecuting at­tomey and Justice or the Peace. Uponreturning to Heber Springs. he served ascity attorney lor eight years and in 1970was appointed as municipal judge.

Neill Reed was a fifty-year Mason anda former Major in the Arkansas National

Guard. He served as the first com­mander 01 the saxton Willis Post No. 64in Heber Springs; was state depanmentcommander of The American Legionand president 01 the Legion Auxiliary in1941-<12.

He was a director of Veterans Employ­ment in 1~7 and chairman or theCleburne County Equalization Board. Hewas a senior law partner in the firm ofRead & Reed and a member of the FirstUnited Methodist Church where he ser­ved on the Board of Stewards.

He is survived by three sons, PhilipNeill Read, South Carolina; Ancil MasonReed, Heber Springs; Geerge W. Read.Little Rock; a daughter, Ruth ReadWhitaker. Fort Smith; and a sister, EllaRobertson, Louisiana.

JOHN MAC SMITHJohn Mac Smith 01 West Memphis,

senior vice president and general coun­sel of Cooper Communities, Inc., diedSeptember 6, 19n at age 66.

He was a 1934 graduate of the Univer­sity of Arkansas Law SChool and mem­ber or Blue Key and Sigma Alphe Ep­silon.

He served as a Colonel In the ArmyJUdge Advocate Corps during WWII andwas a member 01 the American Legion.

Mr. Smith was one of the founders ofthe First National Bank 01 West Memphisand a member or the Board 01 Directors.He was a director 01 the AmericanProbate Council and was servi ng as adirector 01 the American Land Develop­ment Association. He was a member 01the American Judicature Society; Ameri­can and Arkansas Bar Associations; anda Fellow of the American and ArkansasBar Foundations. He had been a mem­ber 01 the Arkansas Bar Association'sHouse 01 Delegates and served as mem­ber of its Executive Council from 1976.

Mr. Smith was a trustee of CrittendenCounty Memorial Hospital and cheirmanor the hospital board in 1976. He servedas director of the Arkansas MethodistFoundation and was a member of theFirst United Methodist Church.

He Is survived by his wife, GladysNance Smith; a stepson, Woods Wright.Jr" Texarkana; a stepdaughter, Mrs.Jimmie Wright Donnan, Texas; and fourgrandchildren.

HENRY W. SMITHJudge Henry W. Smith of Pine Bluff, a

former state representative, circuit judgeand prosecuting attorney, died Novem­ber 1, 19n at 88.

He received his law degree from theUniversity of Michigan Law School andhad attended Arkansas A & M, Universityof Arkansas at Fayetteville. and the Uni­versity of Aberystwyth in Wales.

Upon his return Irom WWI, serving inFrance, Judge Smith first opened his lawoffice in Star City in 1921. He represent­ed Jefferson and Lincoln counties 10 theHouse 01 Representatives belore beingelected prosecuting attorney in 1935.Then in 1952, he was elected circuitjUdge for Jellerscn, Lincoln and Deshacounties, serving until 1970. Whileprosecuting attorney, one of his deputieswas Chief Justice Carleton Harris of theArkansas Supreme Court.

He was a Mason, a Shriner, and amember of the American Legion, theLast Man's Club, the Arkansas Bar Asso­ciation and the Lakeside United Metho­dist Church.

Survivors include his wife. Cora M.Woolf Smith, three sons, Edward T.Smith, Pine Blull, Henry K. Smith, Dallasand Lloyd R. Smith. Dumas: a brother,John I. Smith, Fayetteville; six grandchil­dren and three great-grandchildren.

"January 1978/Arkansas Lawyerl1l

Lawyers' Marl

BOOKS FOR SALEBENGALS ARKANSAS FORMS

now available in reprint$35.00

Fred Stacy, 10162 South Marion,Tulsa, Oklahoma 74136

(918) 663-3553

Re: Jobs for new lawyers in June of 1978

TO: Members, Arkansas Bar Association

00.00" ._ ....he ..c.••• ......T~"' ."' O .0 0 _eL.M • .......... AU' •

"00",0 0_e oo u 0"0, ......T. Co ..CU ,D ' ,.. 0 c ' ...0 .... •. ".D"~C.. u _ .....o;l ............. , ooon.

cOW""ro ~."'.''''''.0 ' .,,'.0""A c · .• 0 .. · ....... c. 0, .'o_u.,OOOl C- .w, ..n_ 0 0 .. 0...... .. ·.LO .

.... '., ... _ 0' 0 ..'_".0 '0 .. " ....'.....c .. ,..,On.........................0 ........ c... "OOD'.0.'.' O. " .. OIl0 ..... "'...'0.......

ATTOIIIN£YS AT LAW

1100 WO~T... t:P<I ....... " .UI\.O,,.O

LITTLE: ROCK, AIIIIK"N."'. 72Z01

WRIGHT, LINDSEY & ,JENNINGS

October 13, 1977

$S minimum20c per word

Gentlemen:

West's U.S. Code Annotated.Current, with 1977 pocket parts.Like new. William Reed, P.O.Box 327, England, Arkansas72046 (501) 842-2316.

LAW PRACTICE NOT PROFIT­ABLE. $14.95 could remedy this.Order: "How To Make MoneyPracticing Law" Sixth Ed. directfrom Ivar Pu blications, Box1855, Los Angeles, CA 90028.

Your continuing response to the placement of young lawyers ismost gratifying. The faculty at both law schools and the officersof your Association thank you again for your help and concern.

We have found that there is better utilization of our new lawyersif they can secure a commitment by January in the last year oftheir schooling. If you know of anyone who might need a newlawyer next summer, we need to talk with you at this time.

Please call or write the undersigned or Ms. Susan Weber, LittleRock at telephone 371-1072 or Mr. Jim Miller in Fayetteville at575-3102.

Sa;;~~~~~ S'

Professional Utilization CommitteeJDS:ms

CJS SETA. Jan Thomas, Jr.P.O. Box 1368West Memphis, AR 72301(501) 735-7700

cc: Mr. Walter R. NiblockMr. James D. CypertMs. Susan WeberM.r. Jim Miller

Reid'. BrlInson instruction. toJuries, Third Edition, 7 volumeswith 1976 Supplement. . .$125.00. Hobbs and Longinotti,500 Ouachita Ave., Hot Springs,Arkansas 71901. Phone No. 623­6666.

Arkansas ReportsVol. 1-255

Richard MaysCall 664-3134.

WANTED TO BUYGlass front legal bookcases ­Globe Warneke or Luscomb ­need 20 sections with tops andbottoms for each five sections.Hobbs and Longinotti, 500Ouachita Avenue. Hot Springs,Arkansas 71901. Phone No. 623­6666.

POSITION AVAILABLE

Tulane University seeks director to organize and administerdeveloping paralegal program. Must be graduate of arecognized paralegal training program. Experience as aworking paralegal required. Some previous administrativeexperience preferred. Salary commensurate with qualifica­tions. Desired availability, as of January 1, 1978. Those in­terested should contact Dean Robert C. Whittemore, Tu­lane University, New Orleans, La. 70118. Phone: 865-4461.An Equal Opportunity Employer.

111Arl<ansas Lawyer/January 1978

HEAR YEtThe Arkansas Bar Foundation

a..-lIon:On his way home from school one day, Tommy, age

eight, stops to play in the tree house in the big oak tree inthe back yard of his friend Freddy. While crawling out theside of the tree house, Tommy slips and falls to theground, spraining his ankle and breaking his sling-shot.Freddy's back yard is not fenced and his parents knowthat the neighborhood children are inclined to play in thetree house. but do nothing to discourage it. Are theyliable for Tommy's injuries?

_er:Probably not. Although the doctrine of "attractive

nuisance" varies from state to state, almost all, includingArkansas, require that the dangerous condition which in­jures the child (1) be hidden from him and (2) be suchthat he could not appreciate it at his age. By age eight,Tommy is probably not a "child of tender years" in thathe understands that if he fails from a great height, he wiilbe injured. Additionaily, unless the fail were caused bysomething about the tree house he wouldn't know about(a loose board, a hidden trap door, etc.) the mere fact thatthe tree house attracted him up into the tree is not suf­ficienl to give the home owner responsibility.

This feature presents general legal principles 8fld problemsWId should not be taken as a legal opinion or advice, which e8IJonly be given by a lawyer alter considering all relevant facts andclrcumst8llces. Additional general information on a number oflegal sub}sets Is, howavar, ..aHabia In pamphlat form wfthoutcharge. Inquiries in this regard should be addressed to: TheArkansas Bar Association, 4()() West Markham, unl. Rock,Arkansas 72201.

HEAR YEtThe Arkansas Bar Foundation

YOU'LL HEAR FROMMY LAWYER

ABOUT THISI

a..-lIon:Old Spot was never known to hurt anybody, but spent

most of his time sleeping under the front porch of hismaster. However, one day Ned Nabor walked by, mindinghis own business. Spot dashed from under the porch andgave Ned a fierce bite on the right foot, requiring medicalattention. Is Spot's owner liable to Ned?_.r:

Probably not. The owner's liability would stem from hisleaving at large an animal which he know. to havedangerous tendencies. Unless Spot's owner knew orshould have known that he was inclined to bite folks, hewould not have to keep him penned up. However, if theirtown had a leash law, one of the express purposes ofwhich was to prevent accidents such as that which befellNed, the situation might well be different. Finally, Spot'sowner would very likely be liable for any future bites if hetook no steps to prevent them. "Every dog gets one bite"- but only one,

This feature presents general legal principles and problemsand should 001 be taken as 8 Jegal opinion or advice, which eWlonly be given by 8 lawyer after considering all relevant !ltCts andcircumstances. AddltJonal general information on 8 number oflegal subjects Is, however, available in pamphlet form whhoutcharge. Inquiries In this regard should be addressed to: The Ar­kansas Bar Assoc/Mlon. 400 West Markham. Utt/e Rock, Arkan­sas 72201.

January 1978/Arkansas Lawyer/17

•SAFEGUARDING YOURPROFESSIONAL FUTURE

Editor's Commant:AEGIS Is a feature ofthaArkansas Bar Associa­tion's educational pro­gram concamlng dock­aI control and otherareas of high risk ex­parfence In professionalliability cases.

Lost time is like a run in a stocking...it always gets worse!

the problem An insured attorney represented a husband and wife who hadbeen injured in an automobile accident. The insurance carrierfor the other motorist involved volunteered to take care of themedical expense but refused to pay for other losses or inconve­nience because of the questionable liability in the accident.

The attorney submitted specials to the insurance company. Asettlement offer was made but was refused by the attorney'sclients. There was no further activity on the case.

Three years later the attorney conducted a review of his pend­ing files and discovered the statute of limitation had run. It seemsthat a new employee in the attorney's office was not made tamiliarwith his office procedures or diary control system and so the casehad not been brought to his attention.

the result The clients brought suit against the attorney for his failure to actin timely matter. Although there was questionable liability in theunderlying case, the attorney was clearly liable tor his failure toact before the statute ran. A compromise settlement was madewith the clients through the attorney's professional liability insur­ance carr:ier.

advice When a change over in personnel involving any member of yourstaff takes place, do not assume that they are completely familiarwith statutory requirements or your general office procedures oryour diary control system. A thorough briefing of this new em­ployee could have eliminated this problem.

111/Arkansas Lawyer/January t978

HEAR YEIThe Arkansas Bar Foundation

c"••L•..

Question:Betty Battered regularly sports black eyes, bruises, etc, oompH­

moots of her husband Bert, who beats her when he feels like it.She doesn't want a divorce, but friends tell her that's her onlyremedy. Are they right?

An.wer:No. It is illegal to beat. up -.yoM, including wives (or

husbands). Betty can have Bert arrested and charged with bat­tery, and hope a misdemeanor conviction will bring Bert to hissenses. Battered wives can get help in this regard by calling 664­8834 or may contact their local prosecutor or JX)lice directly.

This feature presents general legal principles and problemsand should not be taken as a legal opinion or advice, which CWI

only be given by a lawyer atrer considering all relevant !acts andcircumstances. Additional general information on a number oflegal subjects Is, however, available In pamphlet form withoutcharge. Inquiries in this regard should be addressed to: TheArkansas Ba; Association, 400 West Markham, Vttle Rock,Arkansas 72201.

HEAR YEIThe Arkansas Bar Foundation

IF EL£CTED,I PROMlSf...

Que.tlon:Carl Candidate, running against the incumbent Senator,

characterizes the Senator in a press release as a "lazy. shiftlessdandy who's never done a darn thing for this state." He also ac­cuses the Senator of taking bribes from a certain Korean busi­ness man, which Carl Candidate knows is not true. The Senatorsues for libel. Can he recover?

An.wer:Despite the strong language, Candidate's unflattering charac­

terization of the Senator is not actionable, being "falr comment"about a public figure and hence. free speech protected by theFirst Amendment. However, "falr comment" does not protectdeliberate lies, and Carl Candidate CM be compelled to answerin court for his remarks about the non-existent bribe.

This femure presents general legal principles and problemsand should not be taken as a legal opinion or advice, which canonly be given by a lawyer after considering all relevant facts andcircumstances. Additional general information on a number oflegal subjects Is, however, available in pamphlet form withoutcharge. Inquiries in this regard should be addressed to: TheArkansas Bar Association, 400 West Markham, Uttle Rock,Arkansas 72201.

(EDITOR'S NOTE: "Hear Ye!" represents a great opportunity for individual lawyers and local bar associa­tions to contribute to the pUblic relations and public education efforts of the Bar. The Arkansas Bar Founda­tion, through the efforts of Chairman W. Christopher Barrier of its Public Education Committee, is makingthese "slicks" avaifable to local newspapers. In CONTEXT, at page 14, Chairman Barrier encourages otherArkansas newspapers to use the "Hear Ye!" column on a regular weekly basis. Someone needs to make thelocal contacts - why not the local lawyer and the local bar association?)

January 1978/ArI<ansas Lawyer/15

CONTEXTBy W. Christopher Barrier

Chairman, Public Education CommitteeArkansas Bar Foundation

THE GUARDIANS

GLORY AND GRIT...The Arkansas Bar Foundation has commissioned a

series of photographs depicting various aspects of lawenforcement in Arkansas - city police, sheriffs, StatePolice, trials. The photographs will be assembled into atraveling exhibition, which will tour the state during themonths of February, March, April and May, 1978, with aspecial Law Day showing at the Capitol.

The exhibition, entitled "The Guardians", will beshown primarily in schools, where it is intended to giveyoung people a realistic view of the law enforcement

14/Ar1<ansas Lawyer/January 1978

process, without glamour or rhetoric, and provide a focalpoint for panels and general dialogue on the function oflaw enforcement in our society. The exhibition will alsobe shown in public places, such as bank lobbies andcourt houses, to provide a meeting ground for law of­ficers and the public they serve.

SCHOLARSHIP FUND PLANNED...If sufficient interest is stimUlated, the photographs will

be assembled in a coffee table-type book, proceeds fromthe sale of which will go into an Arkansas Bar Founda­tion fund to provide scholarships for the children of Ar­kansas law enforcement officers killed in the line of duty.

The project will be funded largely by an ArkansasCrime Commission grant, and staffed by Arkansas StatePolice interns. However, support by local lawyers isessential to the realization of the project's purposes.

YOU CAN HELP...The present plan is for the exhibit to travel a con­

gressional district each month for four months - Febru­ary, First District; March, Third District; April, FourthDistrict; May, Second District. It is also a possibility thatthe truck may carry two sets of the photographs, so thatan exhibition could be shown simultaneously, at aschool and, for example, a court house in the sametown, for the widest possible public involvement.

Lawyers who are interested in having the exhibit intheir town are encouraged to talk to their local schoolofficials, county officials and interested businesses toarrive at several dates (two days each) which can acco­modate the exhibits. They should then communicate thechoices as soon as possible to P.ul B8ntwn I" FhtN.tlon.' B.nk Building, LItt.. Rock, Ark.,... 72201.We'll do our best to accomodate all the requests.

HEAR YEI: On pages 15 and 17 of this issue appearcopies of the Foundation's illustrated column "HearYe''', now appearing in the Sunday Ark• .,... Democr.tbusiness section. We would like to encourage otherpapers to use the column.

Please take these pages by your local paper for theiruse, on a trial basis. If they decide they would like to usethe column regularly, have them write to He.r Yel. c/oArk.n... B.r Found.tlon. 400 Weat M.rkh.m. LItt..Rock. Ark• .,..•• 72201. We anticipate being able toprovide the column, at little or no cost to the papers, of­ten enough for weekly publication. "

January 1978/Ar1<ansas Lawye,/13

PROBLEM RESOLUTION PROGRAM

TAX FORMS DISTRIBUTION PROGRAM

contact point The Program is forthe purpose of relieving thosesituations which have not received,in your opinion, proper IRS aMentionor "run-around" type situations.

The PRP Specialist's telephonenumber is 378-6260. Mail direcfed tothis parson should be addressed toP.O. Box 3071, Little Rock. Arl<an­sas 72203. This person is directlyunder my supervision. but is locatedin the Taxpayer Service Ama, Room1434, Federal BUilding.

This system is not unique to Ar­kansas. II was successfully testedelsewhare in the Country last yearand is now operational in all IRSdistrict offices. The feedbackreceived from Arl<ansas taxpayershas been very favorable. I am happythe Servica can offer this additionalassistance to you.

carefully read the instructions sincea number of changes have beenmade. One change is the need toorder Package X, which previouslyhad been mailed aut()(Oatically tothose who were on the PractitionerMailing List. The DimctO( of theAustin Service Center assured methat the following dates. which arelisted on the front of Publication1045. will be used fO( filling of f()(msorders:Form Z333E

.......Mid-N(N. thru early Dec.Form 2333 .... Late N(N. thru Dec.Forms 2333R

2333A 00 • Late Dec. thru mi~an.

Form 2333T .Beglnning in JanuaryI urge you to order your forms early,because orders will be filled on afirst-come. first-served basis, in ac·cordance with the ab(Ne time table.Direct your requests for forms toForms, P.O. Box 2923. Austin. Texas

78769. ~

by Psul D. WilliamsDI_lor. Lillie Rock Dtslrlcl

Internal R_nue Serrice

TAX TIPS

The primary function of the PRPSpecialist is to assist and advisetaxpayers who have contacted 0(

been referred to the PRP office afterhaving unsuccessfully attempted tomooNe their tax mlated inquiriesthrough normal or routine channels.The assistance is technical,procedural and administrative, andcovers lull range 01 individual in­come, excise. and employmenttaxes. as well as certain elements ofother kinds of taxes. inclUding cor­poration, fiduciary, and partnership.Assistance is pr(Nided in terms ofindividual taxpayer needs in con­sideration 01 each taxpayer's situa­tion.

Having just said what theProgram is, let me emphasize that itis not a substitute for handling nor­mal Collection, Audit and Intelli­gence matters. It is not a first time

I have just returned from a visit tothe Centralized Forms DistributionCenter in Austin, Texas. I was quiteimpressed with the potenlial ef­ficiency and effectiveness of the1978 forms distribution system.Since last year, systemic changeshave been made. Controls havebeen established to record the dateorders are received and the datefilled. This inf()(mation will be C()(O­

puterized and subject to instantrecall. This will provide me with in­formation with which to trace yourorder should a problem occur. I amconvinced that with the change focomputerization and mechaniza­tion. personnet at the DistributionCenter will be in a much better posi.tion to fill your forms orders thisyear than last.

By now you should have receivedPublication 1045 (Information forPreparers of Federal Income TaxReturns) I encourage you to

Legal Malpracticecontinued from page 11c(Nery of the negligent ac~ the require­ment of disc(Nery of actual damagebeing suffered, and in some cases byapplying the continuous treatment doc­trine to toll the statute of limitation untilthe attomey's representation is com­pleted.'·

lawyers have been most ingenuous inthe development of legal theories andthey should not be surprised that thosesame ingenuous legal theories am usedagainst them in legal malpractice ae·tions.

From

HAPPY HOLIDAYS

FOOTNOTESI~~. Page " ..... l.MdM'. OCkltler, lW16;ABA Report. IpecW c:o-NtIM Oft~. Pi' r ...

~. FetlnMy, 1m.!Smith YL Lewis. II' cal Rp.-. 821, s:J) PIC. 2d 5118 11m).:llFJc:ken YL Superior Court, 558 Pac. 2d _ (.Ariz. Cl oe App..

UI78).'MeA'" ..... Edwatda, 340 So. 2d 1187 (FIa Ct. of App...1978).

"8oecher YL Borth, 51 App.. OIv. 2d 598. 3n NYS 2d 78111978)........... June '4. 1918, • ~ 27.'Tool R-.rch & EnglnMring Corp. \IS. HeniQMln. ~ cal.App. ~ m. 120 Cal Aptr. 281 11m).

'Torma ..... YOI'IT*tt, NpOnIdIn Lege! MafprEb AIport­• , AprIl, 1976 (let« r8YerIId on IIPPNO.

'47 Cal. App. 3td 802, 121 cal. Apt!'. 1904 (1975).1CIMarine Midland T. Co. va. Pent»nhy, DIiorio. & ~Il. 80

MiK. 2d 1" 301 NYS 2d 221 t1_1.~

OFFICERS AND STAFFSARKANSAS BAR ASSOCIATIONARKANSAS BAR FOUNDATION

12/Arl<ansas Lawyer/January 1978

seeability of harm to him, the degree ofcertainty that plaintiff suffered injury, thecloseness of the connection between thedefendant's conduct and the injuries suf­fered, the moral blame attached to thedefendant's conduct, and the policy ofpreventing future harm.

The Court reiterated tha~ as in thecase of an intended testamentary bene­ficiary, public policy requires that an at­torney exercise his position of trust andsuperior knowledge responsibly, so asnot to adversely affect persons whoserights and interests are certain and fore­seeable.3

A Florida Appellate Court has agreedthat the beneficiary of a partiallyfrustrated bequest may sue the attorneyfor failing to use due care in effectingthe full testamentary distribution soughtby the decedent.'

On her instructions, the attorneydrafted and the decedent executed a willleaving everything to the decedent'sdaughter. When decedent later remar­ried, she asked the attorney to revise herwill in any way necessary to retain herdaughter as sole beneficiary. The attor­ney advised decedent that no changeswere necessary.

After her death, decedent's secondhusband claimed his interest in theestate as a pretermitted spouse. Thedaughter settled the claim for S27,OOOand then sued the attorney for malprac­tice. In response to plaintiff's amendedcomplaint seeking to recover for negli­gence, and as third-party beneficiary ofthe attorney-<:lient contract, the TrialCourt granted summary judgment for theattorney.

On appeal by the daughter, the DistrictCourt of Appeal canvassed the dividedauthorities and chose to rely on the Cali­fornia nule stated in Heyer v•. Flaig, 70Cal. 2d 223, 449 Pac. 2d 161, 74 Cal.Rptr. 225 (1969). This case held that anattorney owes a dUty of care not onty tohis client. but to the beneficiaries of aclient whose rights and interests are cer­tain and foreseeable. Holding that the

daughte~s interest was of that class, theCourt reversed the judgment and return­ed the matter for trial.

Current decisions tend to indicate agrowing trend toward permitting a con­tractual warranty-type basis for recovery,thereby rendering the contractual statuteof limitations applicable rather than thenegligence limitations period. In 1965 aclient asked his New YOI1< attorney toexamine the title to property being pur­chased. Prior to closing the attorney ad­vised his client that the title was free andclear of encumbrances and the transac­tion was closed. In 1970 when the clientchose to sell the property, he discoveredthat the property was encumbered. Theclient brought suit in 1971 and it wasdismissed on the ground that the three­year statute of limitation had nun. On ap­peal, the New Yorl< Appellate Court re­versed and in doing so applied a six­year statute of limitation holding:

There was an express promise by de­fendant to achieve the specific resultof establishing mar1<etability sinceanything less would defeat the pur­pose of the retainer agreement.s

The dissent in this case pointed out lhatthere was no written contract or retaineragreement between the client and the at­torney.

A recent Illinois case has made itabundantly clear that an attorney mustnot file a lawsuit without a reasonable in­vestigation of the facts having beenmade. In the Illinois case, a woman suedher doctor for S2SO,OOO alleging medicalmalpractice. The doctor counterclaimedagainst the woman and also sued the at­torney for negligence and misconduct inbringing a spurious suit Testifying as anexpert witness on behalf of the docto~s

counterclaim, a Chicago attorney saidthat prior investigation was normal, legalpractice and that a lawyer "has a dutynot to proceed if the suit will have the ef­fect of harassment.... It took only 15minutes for the jury to award judgmentagainst the client and the attorney.

Similarly, in a recent California case,7involving an action for maliciousprosecution against an attorney, theCourt described the attorney's duties, asfollows:

An attorney has probable cause torepresent a client in litigation when,after a reasonable investigation andindustrious research of legal authority,he has an honest belief that hisclient's claim is tenable in the forum inwhich it is to be tried.... The test istwo-fold. The attorney must entertain asubjective belief in that the claimmerits litigation and that belief mustsatisfy an objective standard.An attorney's duty to investigate may

also include a reasonable investigationif he refers busi ness to another attorney.In a 1976 New Yorl< decision,' a plaintiffobtained a jUdgment against a lawyer forS1SO,OOO for carelessly referring one ofhis clients to a Nfffl Jersey personal in­jury lawyer who later absconded with thesettlement money.

In 1975, a California court, in WrightVI. Adem..- expressly recogniZed ahigher duty of care for the legal special­ist. In Wright, plaintiff had consulted anattorney regarding the purchase of anocean-going vessel. The attorneyreferred the client to Williams, a speciai­ist in maritime law. Plaintiff later suedthe maritime lawyer for failing to ade­quately check the title to the vessel. TheCalifornia court held that a lawyer whoholds himself out to the public and to theprofession as specializing in an area ofthe law must exercise a skill, prudence,and diligence exercised by other spe­cialists of ordinary skill and capacityspecializing in the same field.

Most jurisdictions have in the pastheld that an action for legal malpracticeaccrued for purposes of the statute oflimitation when the negligent act oc­curred. There have been recent signi­ficant changes in this area, such asholding that the statute of limitationcommences to run from the date of dis-

continued on page 12

Odell Pollard is Chairman, Claims Review Committee of the Ar1<ansas Bar Associa­tion - the Committee charged with the responsibility for revifffling professional lia­bility insurance for the membership. He has served on this Committee since 1972. Hehas been a member of the Interprofessional Liability Insurance Study Committee andof the Insurance Law Committee. He is a partner in the Pollard & Cavaneau Law Firmof Searcy. He served as the Republican Party State Chairman from 1966 to 1970 andNational Committeeman from 1972-1976. Pollard's comment about his article is en­lightening, "I hope that it doesn't scare the britches 0" some of our brother lawyers.Hopefully, it will make all of them more claims conscious and thereby lessen thenumber of malpractice claims that are made against Ar1<ansas lawyers."

Chairman Pollard will publish a sequel to this article in the next issue of The Ar­ken... Lewyer - designed to be of assistance to the ArI<ansas lawyer in decidingwhether securities' coverage is needed in one's malpractice insurance policy. Thearticle will be on Arkansas securities matters - to provide guidance to the lawyerwho may not even be aware of being involved.

January 197e/ArI<ansas Lawyer/11

~--------------_.~

RECENT DEVELOPMENTS INLEGAL MALPRACTICE

- Odell Pollard

o 0

,.."

10/Ar1<ansas Lawyer/January 1978

In the past few years legal malpracticeclaims have Increased dramatically.' Ofeven more concern than the frequencyof such claims are the numerous newtheories upon which these claims arebased.

Some of the newly·found ways for alawyer to get Into trouble are:

(1) By 'elling to ..aq_1y ....rch......UI8d .... 01 tJw Int .nd '.llIng10 m.....n Informed cl8c11lon .. to tJwcou.. 01 conduct which his cl t"-Id t.k. In auch ....UI8d ;

(2) By '.1I1ng to dl8cover tNt • cl twho 18 • g...rdl8ll 01 .n MI.t. I. 1I1eg.1·Iy ualng tM w.rd'. 1IlClMJ;

(3) By '.IMng 10 draft • will In auch •way ao •• to c.rry out 1M t..tator'••n·nounced willhaa (In auch • ell...llon, Mm.y .Iao be IIl1ble to tJw Intandad bene·llel.,,);

(4) By having • client to _ him Incontract r.thar than In tort and therabyIIffordlng 1M client • longar parlod 0'time within which to _ hi. IlIwyer;

(5) By '''ling to ..aq...taly Inveatl·gat•• claim prlor to tM nMng 01 • ault;

(6) By -"ng • client to 8Il In­compeI...t attorney or to .n .ttorneywho lIbacond. with tJw client'. 1IlClMJ;and

(7) By holding ....... _II out ......ng• .-cIaMat In • p.rtlcular 'leld 01 tMInt and Ihan '.11Ing to .nrclae tJw"'II~ pl\ldance, and dillgance nonn.11yexercl_ by olhar .-cleMat. In thatfteld.

In 1967. Rosemary Smith retained anattorney to represent her in a divorce ac­tion against her husband, a reijred Gen­eral in the California Naijonal Guard.The attorney advised her that theGeneral's state and federal pensionbenefits were not community propertyand he did not seek an epportionment ofthose benefits In the divorce. The finaldecree was entered February 27, 1968.The law in California was unsettled atthat time concerning future pensionbenefits. Writers hed Indicated there wasa right to the state benefits; however, noreported California case prior to 1967had held that a court was empowered toaward future benefits to a spouse in adivorce action. Also, In 1967, there wassubstantial doubt whether federal mili­tary pensions constituted community

property. Later, when Rosemary Smithsued her attorney for felling to obtain adivision of the General's retirementbenefits in the 1976 divorce action, theCalifornia Supreme Court affirmed a5100,000 judgment against the attorney.'The California Court said:

If the law on a particular subject isdoubtful or debatable, an attorney wilinot be held responsible for falling toanticipate the manner in which the un­certainty wili be resolved.

However, the California Court did notstop there. The Court said:

But, even with respect to an unsettledarea of the law, we believe an attorneyassumes an obligation to his client toundertake reasonable research in aneffort to ascertain relevant legal prin­ciples and to make an informeddecision as to a course of conductbased upon an inteliigent assessmentof the problem.The Arizona Court of Appeals has

held, despite lack of privity, that a legalmalpractice action can be maintained bythe conservator of an Incompetenfsestate against the guardian's attorneywho allegedly failed to discover that theguardian was misappropriating and im­properly investing guardianship estatefunds.

In response to an action filed by theconservator, defendant·attorneys movedfor summary judgmenL relying on thegeneral rule thaL in the absence of fraudor collusion, an attorney cannot be liableto one other than his client in an actionarising out of his professional duties.The Trial Court denied that motion onthe ground that the defendants failed toestablish the absence of a legal relation­ship and concomitant duty to the ward.

On appeal, the Appellate Cou rt af­firmed, holding that representation of theguardian by the attorneys created a dutyto the ward. The issue of whether the at­torneys knew or shou Id have known thatthe guardian was acting adversely to theward's interest was held to precludesummary judgment. The Court em·phaslzed that the determination ofwhether an attorney is to be held liableto a third party is a matter of policy andinvolves balancing various factors; thatis, the extent to which the transaction isintended to affect the plaintiff, the fore-

MEEK

Fledgling Lawyer

EaINm8d Anome)'

Pl8lident'a Reportcontinued /rom page 7

In the last session of our Arkansas Bar House of Dele­gates, LAWPAC was authorized. It is hoped that theLAWPAC to be formed will be a separate, non-profit cor­poration (hopefully, with tax-exempt status), supportedby a small monthly contribution paid by bank draft. Fivehundred (500) contributions of $5.00 a month each wouldget the plan launched. We hope to have the plan inreadiness by the Mid-Winter meeting. When called uponfor a contribution, I urge you to respond affirmatively, asthis cou Id well be the most important money you willever spend. In this instance, the "good cause" is really"your cause." If we fail to accept that challenge ofeducating our profession and the pUblic, the job will sim­ply not get done and in such event, we all will be thelosers.

Regarding No-Fault, let me report to you that yourassociation has participated in underwriting the expenseof a detailed analysis of the Department of Transporta­tion report which the Carter Administration is using as a

Cover Storycontinued /rom page 5

"When I see 300 automobile loads of youngAmericans coming down our Little Rock Main Street,with every voice shrieking defiance to Pine Bluff to anaccompaniment of honking horns, clanking cowbellsand superinduced backfires; or when, during fraternityinitiation time, I see some mother's pride and joy walkingdown Fifth Street wearing his new fall suit - all exceptthe pants; or when I see an entire grandstand fu II of stu­dents shouting "Siss-Boom-Bah", and making otherstrange sounds under the direction of cheer leaders whoachieve unusual anatomical positions - at such timesas these, I say to myself: 'I am glad I live in a civilizationthat supresses animal instincts and puts culture first ofall!' ..

Space considerations will not permit the copying ofhis Review of "Little Red Riding Hood" given to the LittleRock Book Club, his tribute to his last tire during WorldWar II, which he described as "a rotating, vulcanizedGunga Din", or his analysis of the song, "What MakesYou Do Me Like You Do, Do, Do,", in a speech entitled,"Deep Thoughts for Deep Thinkers" delivered to the lit­tle Rock Chamber of Commerce. His last address to theArkansas Bar Association, "Idem Sonans" is pUblishedin 12 Ark. Law Rev. 290 (1958).

Mr. Meek always wrung a final laugh from hisaudience before he sat down. This is something hecou Id never resist. So it is that when he has been"gathered unto his ancestors" and is in a "state of Elysi­an bliss", he will draw a final chuckle from the Judge ofthe probate court. Mr. Meek has already prepared an or­der for presentation to the court which provides that hiswill is entitled to be admitted to probate. At the bottom,in the lower left-hand corner of the typewritten order, hehas written in script, "Approved as to form, Harry E.Meek.,,~

rallying point to promote national no-fault. The critiquereflected in the analysis clearly shows the purposefUllybuilt-in bias in the Department of Transportation's report.We trust that our collective efforts will be successfulonce again in defeating this repeated assault upon theright of the people to seek redress for their loss by a jurytrial. I once again remind each of you to do your best toprotect and enhance the jury system. Although we verywell need to seek means of improving the delivery of jus­tice, juetlce in this great land of ours need. 110110 be ra­lioned. Write your senators and representatives and letthem know how you feel about no-fault, products lia­bility, national health insurance, and national workers'compensation.

MIDYEAR MEETINGAs a final note, start planning now to attend the Mid­

Winter meeting. A new system will be introduced onWilla and Truet. under the leadership of Dick Williams.

#.....January 1978/Art<ansas Lawyerll

•. l':"'OW" 1l0NOHOLOEIlS. MO,.'O ..OfIS. ....0 OT"E" SICVIlIT>' HOLO!!RS OWNINO all HOLOINO 1 '£ACE"'T OR MOAI 01"O""L ..."'OV"''' 01 BONOS "'OIllTO"'OES OR O"HER SECUllll IES ", II......... ~Oft......,.,.,

HARRY E.I

--1

N...... ES AND CO"'''LlTf _ODRE$8U OF "V8.. 'S"£", EDITOR, "ND MANAGINCi IOIlOR

STAl EMENT OF OWNERSHIP, MANAGEMENT AND CIRCULATIONfRtq~1I't'd II) J9 us C J68SJ

VOL

~.I"'''I

1.00'1"'1'" I" ~.rd _ 'io~. I" Mol ~ ~ ••• ,"" .Ilol I"' '-t.'.. ,,,- ~d•• , "'" MoI ••_. 01,'0"_~old o'""on, 0' "ololl~. 1 "..""'~, 0' "'0'" 01 "'... • "",.M o( ..oclt If ~o' O"'~H h , ~, "'" _"',. _ Md _ ( 1.... ft ~., _~ .,,",~ "_~...,, _ ",,~'rMI'" 0' 0 ft ..,., ,..." ,"""'" II 0001 Mol Q .. , , o( " ••II,'MI.oI "' •• ,

..u ........, .. (1'I.m••~d Add...../

Arkansas Bar 1.88."w"dlltinn. 400 WeILt....Harkham l,hUe Rock., 1.0''1'0'' {NO__d ,4,,,......./

r , 0, .'e. '~e.s.t.J<arkhaD>o-Ut~~ArkanaU-2220l.-_..........G'NG 101'1'0" rN.m••~d Juld.../

C. E. Ranaick 400 West Markham Li .... l ... D ......lI' '7?'Ml

1.......OuC..C'" DO' ,n",,, r NO 0" ISS"''' ..."'... ' .....01 .......U .. L lJunc.....TlO..

ouarterly . ...... u .......y.. I $"J:o.O membe.ra I

i LOC:AT'ON 01' ....OW.. 0 .... '(:1 01' ",V.LOCATION IS'...", ell). CO~MY.Sl.'• • ~d 1./1' Cod.) r"'a' priM.,.., $6.00 non-members400 West Markham. Little Rock. Pulaski. Little Rock. Arkan8a.~~__~

•. LOCAT,O" 0" '1'''1. oou 0 .. 0 '." "' '" O" .. ,c:•• 0" , INor prloo'."1 I'00 w. , " o~k " •• , o~. ",n,•.

1904

ift "c"'''.''''. wlt~ ,~. p,o lo." 0' ,~I.....u,•• , ... ,.... ,__"'........ to "'.1 ..........,Ie.,'- ,,_ '" II.... 1 ., t".""_ 00.._,............" .. _,'-1< ~ V. 5 C.;Ml7B

1918

"'ClV... L ..O COPIES OF 51"'OL£'SSU£ I'UIL1SH£0 "I£""U5T TO

FILlloIG O... T£

flf <...",.d 10..... ",,.., ......" U .......IIO.. o( .....~,.",II" I~1o _~I I

...VI ......Of. ...O CO'IES E"'C"ISSUE OU"""'G ' ... £CEO.NG

U,",O... T..IElllENT "'NO N... l...,RE OF CII'CVL"'''O'''•

~:"'~~~~.TU""A ..~OW·"~~Il:O.. Il:O, ...O ........L'·.. ·':'·.... ·C'"....•. 0--

01,It I ~nify Ihlllh~ S1.I~m~nls mad~ by m~ ~~" /_ .....

Iboyc Ire COI'Tt'CI Ind compltle. Ut1V8 D1rec- or

'Z. FOil CO,",PLETION lIY I'VlIL'SHi!I'lS M... IL''''G AT lHi! IIEGULAIIII ... TES rS•• ,Io~ 132 IRI. Po.,..rs..."", 1lI.ft_1

•. '0 COIII'LETIO,,", B" ",ON''''OlIT OI'lO"''''IZ... TIONS ...,T"OIll':/:IO"O "'''''L''''' SPEC''''L 1'l ..... £S /S••'lo~ ,n ,It. /'SMIT '._'OOft. __"Po'" 01 11 0 __ ''-0' ".,.> 101 ~_I" i""o"'. '00 0 'C ~ 0 1

3i V. 5 C. )628 ovld.. l~ "1 p.... • 0 ,"'~ w wei.'" ~ ,ltl'" '0 It "' '0 _'OOft .35i 0' tM. tot".,.tt 11 c.. ......, t , __ '''1> __,Ioft ...._ 'lltH It. wi... ,~.I' $onr~ • ...,1._ ,~..... '0' _",I_ft'0 11 "' >UdI ro, .

TO" ...L"O co',n 1""""",0 IN., 1'..... Il ...!

"'---''''0 C"'CUL"""O"2..~.B.7 -2.5.5.0_ --

,. 'A\... ' ......DUG.. O....L.........OC...... ,"' .., • ., ........

-"-""..00'" .... 0 CO.... "T,," ....L... ..,,0-

l. "AIL '''''UC''''T'O''"' , ", , .n,TOT ... \. 1'... '0 C'''CULA''''O'' /s.", of /0111 _ lOll)!

, "3 ' .•-'0.10 , .... "' O.....".UT'O... " """L. c ....... ,.... 0" OT ...... ......H. _n_'''''''L'''. cO....L' .. II ................. 00........ '''11 .. co"I, -0-

"O"''''L 0'.1' .........,.'0.. IS.... ofC _ 012,313 ~_'-O.1

Co"". HOT O'."'''''UT'OI. O'FlC" ........ L"'T 0"..... UH ... CCOU...."O. "0'\."0

11'................ 'HT.HG,.,

Z. It",TUltH' '''0'' H"W. "G''''''. _n_ _n_o TOT"'L /S .... ofB. FI_ r--.o...""""""' ..., p .........~ oil.......

--.~ltl , .., 2 5<n

Learned Coun18llor

8/Arl<ansas Lawyer/January 1978

PRESIDENT'S REPORTby Walter R. Niblock

Serving as your president has brought me, through at­tendance at various meetings, in contact with officers ofother bar associations. The most recent meeting wasthat of the Southem Conference of Bar Presidents. As Ihave visited with the officers of other associations, heardspeeches, and shared thoughts and concems with them,I have become more and more convinced that we, as abar association specifically, and the legal profession inArkansas generally, although we have many problemsalways confronting us that have to be dealt with, have somuch to be thankful for and proud of. We are far aheadof so many others in unity and accomplishments that Ifelt I shou Id in some way convey this to you.

For example, we have a vohmtery association as op­posed to a un"1ed bar. The unified bars are not inde­pendent; we are independent. The unified bars are sub­servient either to the state legislature or the statesupreme court; we are not. The unified bars are limitedin their efforts to effectively represent the legal pro­fession in a vigorous manner because they are not inde­pendent. Some of the states that have a unified bar alsohave a voluntary bar which means that in many in­stances efforts are split and in other instances duplicat­ed. Neither can be as effective as the combined, unifiedefforts of lawyers. Our state bar association is compara­tively small, yet our work has been great. As an example,I refer to our "systems" approach on CLE. And, contraryto other states where lawyers practicing in the differentareas, such as plaintiff representation, insurancedefense, corporate, what have you, are in constant con­flict, I have found and am proud to say that among Ar­kansas lawyers there is generally a good feeling. Onlythrough cooperative efforts could our work have beenachieved on such small budgets as we have worked un­der.

LAWYER ADVERTISINGMany state associations are still wonrying with adver­

tising. Through the dedicated efforts of our Specializa­tion and Advertising committee and under the leadershipof Jeff Starling, we have met the advertising matter head­on, have done our homework, filed our petition in theSupreme Court, and are now waiting on the Court tofinalize the matter.

MALPRACTICEINSlJRANCEWe are in the forefront on our malpractice insurance

plan. While at the Southern Conference of Bar Presi­dents, I found that we were the only state among the six-

teen present that has an OCCUrNflC8 plan. A great deal ofthe discussion at the conference centered around themalpractice woes. We must continue to work towardssolving the problem of availability of coverage, and ourcommittee under the able leadership of Odell Pollard isdoing just that.

FOUNDATIONOther bar groups acknowledge and confirm that our

Arkansas Ber Foundetlon I. wfthout peer. It .. the envyof associations throughout the country and in fact isused as a model of what can be done by lawyers if theywill band together and work together for a commoncause.

BUDGET PROGRAMMany bar associations with far greater memberships

and far larger budgets to work with have greater fiscalproblems than we have. We are tru Iy squeezing everyounce of worth from your bar dues paid in. But, althoughit is nice to feel a sense of pride in a job well-done, wecannot rest on our laurels. With spiralling costs and ex­penses and needs to be met, it is apparent that an in­crease in the current bar dues is inevitable, and we haveno choice but to give consideration to such an increase.In this connection, we are planning to come up with amUlti-year budget program so that we will have continu­ity of programs from one year to the next and so that wecan more effectively plan our courses of action severalyears hence and continue, through good planning andbudgeting, to get the most mileage possible from yourassociation dues.

LAWPACThroughout the meetings with other state bar officers,

there have been discussions of the need of lawyers tocommit themselves and to commit financial resources toa successful legislative education effort and successfullobbying efforts. As I have mentioned previously, thelegal profession in Arkansas no longer has the influencewith the Legislature assemblies that we formerly exer­cised; we are in the minority, and if we want to be heardeffectively, we must be willing to invest our dollars in aprogram to gain the needed support that we must haveto carry on our programs. Occasionally, I receive lettersfrom members that are derogatory about some of ourprograms. However, I had much rather receive that thana no-comment attitude. It is more important to be heardthan to remain silent. continued on page 9

January 1978/Arkansas l>1:Nyern

HOUSE CONCURRENT RESOLUTIONPROVIDING FOR THE PRESENTATION OF ACERTIFICATE OF COMMENDATION TO MR.HARRY E. MEEK FOR HIS LIFETIME OF INVALUA­BLE SERVICE TO THE STATE.

By: Representative linder H.C.R.

WHEREAS, Harry E. Meek, a native of Arkansas, and now in his eighty-sixth year has devoted much of his life to the enrichmentand well being of Arkansas, and

WHEREAS, he has been a distinguished member of the Arkansas Bar for over sixty years and the Arkansas Supreme Court reportsare filled with important cases that he has briefed, and

WHEREAS, because of his rare gift of discriminating draftsmanship and thorough knowledge of the law, he has been called uponon numerous occasions to help in the drafting and/or editing of bills for submission to the General Assembly of the State of Arkan­sas, and

WHEREAS, our statute books abound with the imprint of his good work among which are such significant pieces of legislation asthe Corporation Code of 1931, Business Corporation Act of 1965, Arkansas Inheritance Code of 1969, and a substantial part of ourbanking laws, and

WHEREAS, as Regional Counsel of the ReconstnJctlon Finance Corporation during "The Great Depression" he personally han­dled the application of many Arkansas Banks to the ReconstnJction Finance Corporation for the sale of preferred stock to the Re­construction Finance Corporation, and

WHEREAS, during this critical period in our state's history, Arkansas was the first State in the nation to have a bank re-open underthe preferred stock plan, and

WHEREAS, before the banking situation in Arkansas had stabilized, approximately one hundred twenty-five banks in Arkansas,through the help of Mr. Meek and the ReconstnJction Finance Corporation had been reorganized during which time Mr. Meekworked long and hard and many times well into the night in helping Arkansas to get back on the road to economic recovery, and

WHEREAS, because of his excellent reputation as a"attorney and his keen and penetrating sense of humor he has been invited tospeak throughout our State as well as in other states all of which have helped to enhance the good name of Arkansas, and

WHEREAS, he has always been interested in exercise and athletics having played left tackle on the Camden High School footballteam when he weighed only 141 pounds, and

WHEREAS, he has had a deep and abiding interest in things other than his law books and legal problems and he takes greatdelight in such diverse pursuits as the study of astronomy, rocks, trees and flowers and he can give you the Latin or Greek name forthe trees and flowers seen in daily life, and

WHEREAS, his feeding of birds, raccoons and an occasional possum from nearby Alsop Pat1< is an evening ritual at his home, andWHEREAS, he has shown great love and concern for birds by publicly pleading with our citizens to feed them during bad weather,

andWHEREAS, as President of the Pulaski County Humane Society and for sometime thereafter, his care for animals and his

response to their needs at all hours of the day or night have become legendary, andWHEREAS, because he has utilized his gifts and his talents so unselfishly, so well and so long for the ever-lasting benefit of our

State, it is altogether proper and fitting that we recognize this remarkable man.NOW, THEREFORE,BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE SEVENTY-FIRST GENERAL ASSEMBLY OF THE STATE OFARKANSAS, THE SENATE CONCURRING THEREIN:

SECTION 1. That Governor David Pryor is hereby requested to designate within the near future a day as "HARRY MEEK DAY INARKANSAS."

SECTION 2. That the Speaker of the House, President of the Senate, and the Governor are hereby requested to prepare a Cer­tificate of Commendation to be presented to Mr. Meek for his invaluable services to our State by the Governor at a Joint Session ofthis House and Senate.

SECTION 3. That the Governor shall notify Mr. Meek of the passage of this Resolution and invite him to appear in the House forpresentation of the Certificate to him.

SECTION 4. That an article on the contributions of Mr. Meek to Arkansas shall be filed in the permanent records of this State as asplendid example of duty, responsibility and good citizenship for all of our youths to follow. f......e/Arkansas Lawyer/January 1978

He obviously loved to jostle the JUdiciary. Whenspeaking to the Arkansas Bar Association, he intoned:

"Judges have fearful responsibilities. For instance, in107 Federal, Page 15, the Circuit Court of Appeals sittingin New York was called upon to decide whether a corsetwhich was exhibited to the court constituted "wearingapparel made in whole or in part of lace", within themeaning of a customs duty statute. The lower court, con­cealing its modest blushes behind an unreportedopinion, adopted the view (which is sound, from theseamstress' standpoint) that since the lace was sewedon the edges and not in the middle, it represented mere­ly a superfluous decorative trimming, rather than an in­sertion constituting an essential unit in the make-up ofthe garment - so that. viewed in such light, the corsetdid not constitute wearing apparel made in whole or inpart of lace. The case was appealed; and we can wellvisualize the appellate court judges struggling for dayswith the profound problem which was thus brought upfor their consideration; making the experimental applica­tion of established principals of logic, inductive anddeductive; searching for ancient precedents; and con­sulting such works as Blackstone, Pothier, Grotius, Puf­fendorf and the Delineator. After completing its research,the appellate court reversed the lower court and took thebroad judicial position that lace sewed on a corset is per• a part of the garment and should be so regardedwhether sewed on the edge, middle, forward, back­wards, or sideways! You can well imagine, in a case ofthis kind, the sense of crushing responsibility that wouldbe felt by a conscientious judge when he realized thathis error judgment might serve as a precedent to mis­lead 120 million people as to when a corset constituteswearing apparel made in whole or in part of lace."

In "Things" delivered to the Arkansas Bar Associationin 1950, Mr. Meek revealed his poetic skills. He analyzedSpencer's "Prothalamion" and then put the rule of Hors­ley v. Hllbum to rhyme:

"I always thought "My Feet Are Killing Me" wouldmake a nice poetic sentiment. But the title to this poem Ihave written for tonight is, "Fee Tails Is No Good; IWants a Fee Simple". I am going to read you this gem ofpoesy:

1.Come here and gather round me children,While I tell you the rule of Horsley v. Hllbum,Reported in 44 Ark., at Page 458,It's a leading decision in this state,

Tra la; tra la; merrily sing tra la.2.

In 1651 Marietta Hilburn's papa drank a toddy,Then conveyed some land to Marietta and the heirs of

her body.What estate did Marietta get?Some folks are wondering about that yet.

Tra la; tra la; merrily sing tra la.3.

Said Marietta, with her smiling dimple,'Fee tails is no good; I wants a fee simple'.So she sold her doubtful title for which she couldn't be

blamed,And through her deed the apellant Horsley claimed.

Tra la; tra la; merrily sing tra la.

4.Horsley contended Marietta had a fee conditional estate,Which became absolute when she had issue on a cer­

tain date;That anyone who ever read Blackstone would have sawThat this was the rule of the common law.

Tra la; tra la; merrily sing tra la.5.

The Court said, 'Yes, that argument would settle this en­snarlment,

If the statute de doni. conditionalibul hadn't beenpassed by Parliament';

And held that under our fee tail statute (which contem­plates the common law in 1607 as amended byParliament)

Marietta got a life estate in these lands and tenements;With a contingent remainder to her lineal descenda­

ments,Tra la; tra la; merrily sing tra la.

6.Thus, the Court settled this litigious brawl;And Marietta's surviving issue seem to have got it all.Horsley said, 'I'd sure like to put in the calabooseThose Englishmen, who passed that old statute de doni.

condltlonalibus.'Tra la; tra la; merrily sing tra laoOccasionally he would become serious and reveal

something of his inner being."All things in the law are not bad. There's one thing

that does much to redeem it; and I refer to these good,courteous, conscientious fellows who try to make good,courteous, conscientious lawyers; and these goodjudges who accept their office as a grave responsibilityand not as a decoration. I mean these lawyers who don'tmake a personal feud out of a technical issue; and whobelieve both their clients and themselves should givesome regard to the Golden Rule; and not these -I can'tsay it in the presence of ladies - who will move todismiss your appeal if you happen to file a brief one daylate. And my plaudits go to these judges who really diginto our cases and who can buck a crowd, and who canoverru Ie a lawyer's contention without being sarcastic. Ihave had judges rule against me, and do it so cour­teously (and yet so firmly and with such logic), that ICOUldn't help but realize that they were right and I waswrong; and the ability to convince a lawyer of his error,to do it courteoUSly, in my opinion, is the earmark of areally good jUdge."

But he would always revert to the ridiculous:"I want to offer a prize to the first judge who will put a

decree that an act is merely 'null' - and suppress hiscircumlocutional impulse to say 'null and void and ofno effect'. Then we have our inevitable courtroomdramatics; it looks like a lawyer can't even take a defaultjudgment without putting on a balcony scene. And last,but not least, there's that immortal yardstick of the law:what a reasonably prudent man would have done underthe same circumstances. You know folks are alwayserecting statues. I think the American Bar ought to erecta statue of the reasonably prudent man and show himsitting up there under the same circumstances!"

In 1956, Mr. Meek spoke to a Parents-Teachers Asso­ciation in Hot Springs. He told them:

continued on page 8

January 1978/Arkansas Lawyer/S

Cover SIorycontinued from page 3

treed a coon named Cornwallis, whereupon the peoplecalled Washington the 'Father of Our Country', and puthis profile on a two-bit coin. My experience while atYorktown was more analogous to that of Cornwallis thanWashington. As I recall, I ate some bad clams; andwhereas Washington took Cornwallis, I took paregoric."

He often joked about rationing and wartime Federalregulations. For example:

"I want you to understand that this is going to be nolight, jestful speech, delivered in a humorous vein; butwhat you are about to hear is a solemn, unvarnishedrevelation about fierce warriors and about war. The regu­lations say we men can't wear cuffs on our trousers andforbids the sale of more than one pair of pants with a suitof men's clothes. In other words, not content withregulating our interstate commerce, our wages andhours, and our farm security, the government now wantsto regulate our pants!

Gentlemen, this business won't do! The constitutionnot only assures our right of freedom of speech and thelawful pursuit of weallh and riches, but it also guaran­tees the integrity of our breeches. And in the morningwhen I get out of bed and slide into the comfortablesecurity of my faithful hand-m&-downs, I want to feel thatI am doing this by virtue of my inalienable vested right­and not under the authority of Federal Permit No. 6842.Moreover, when I am wending my way through the martsof trade, I don't want to be threatened with the possibilityof having some Federal officer accost me, and dispantme, on the ground that my license has expired!

Our pants are our most faithful servitors. They affordsanctuary to our goo5&-flesh; and they conceal the ec­centricities of our shins and knees. They intervene bet­ween us and cold benches. They furnish asylum for ourshirt-tails; and provide pockets for our keys, and ourhandkerchiefs, and our money - if any. Nor does theirutility readily succumb to age; but our pants gain lustreand personality with maturity. And even when their pris­tine glamour has departed, and we have written off 25%depreciation in the seat, we still wear them with confi­dence and assurance. And when at last their steward­ship is ended and we lay them aside as faithful coadju­tors who served us well, - even then their utility is notexhausted; but as a unit in our wife's hooked rug or asan accession to our hired man's habiliments they enterinto a new useful sphere."

Mr. Meek could find something funny in familiar ob­jects. In a speech entitled, "General Topics" delivered tothe Arkansas Bar Association, he said:

"Take the great Seal of the United States, for instance.The most striking symbol on our national seal is the un­comfortable eagle. You know the figure of an eagle isshown upon the seal of a great many of our govern­ments; but on no seal examined by me does the eagleappear to be sitting on a limb, relaxed and comfortable.On the other hand, the eagles shown on our public sealsall appear to be suffering with high blood pressure; andinvariably, they are shown in some posture which mustbe very distressing to an eagle. The eagle on the UnitedStates Seal has his legs spread far apart in an anatomi­cal gesture that the children call "doing the splits"; but

4/Ar1<ansas Lawyer/January 1978

the most remarkable thing about the eagle on the Ameri­can Seal is his tail! This tail certainly has no counterpartin natural history; and, in my opinion, it owes much moreto the milliner's art than it does to ornithology. But, atany rate, let our Secretary of State at Washington placemerely his signature on a document, and the instrumenthas no legal status - it is not official - it is nothing inthe eye of the law. But if he will add to his signature theimprint of a uncomfortable fOWl, doing the splits, with asynthetic tail, then the paper is highly regarded as apublic document expressing the will of 120 millionpeople, and it has a special legal status and is admissi­ble in evidence.

The eagle on the Arkansas State Seal has managed toachieve a sitting position in much the same fashion ashumans do, but in doing so, he or she has narrowly es­caped sitting on the sharp points of four arrows. On ourState Seal also appears a sword (which is a symbolicalwarning to the foreign corporations) and likewise theword "Mercy", which is probably addressed to our credi­tors."

Another one of Mr. Meek's favorite tricks was toanalyze the legal language in an insurance policy or acommon legal instrument. Speaking to ArkansasBankers, he discussed his promissory note:

"But my complaint was that Bill had surreptiously in­serted in the note a provision whereunder the makersand endorsers agreed not only to waive presentment forpayment and notice of nonpayment but also agreed towaive protest. I told Bill it was all right to put in there thatI waived presentment for payment and notice of nonpay­ment (in fact, I was willing to go the whole hog andwaive payment); but that the right to protelt at the buffet­ings of fate was a privilege I had always cherished mosthighly - (in fact, that I had sort of specialized in pro­testing) - and that this was one right I certainly wouldnot waive. I assured Mr. McDonald that I was willing toobligate myself for value received, and without defalca­tion or discount, and to pay penalty interest on my noteand even storage charges, if required; moreover, that itwas O.K. by me, in the event of nonpayment of saidsums at maturity or any installment of interest thereon,for the holder to be invested with power to sell at publicand/or private sale all my securities and collaterals. But Iexplained to Mr. McDonald that the maker's right toprotest at having to pay is an ancient prerogative as oldas the law merchant, and if he really expected me to paythat thing when it fell due I certainly wouldn't waiveprotest."

In 1938, Mr. Meek spoke to the Medical Association.He facetiously described his experience with doctors.

"The diagnostic results achieved in different quartersoften present a divergence of views that is bewildering.For instance, the chiropractic will tell me that I am suffer­ing from nerve interference due to a displacement of thefourth lumbar vertebra, but the osteopath may suggestthat I have adhesions. The nose specialist illuminates mysinuses and gives me a bottle of nose drops; while thebacteriologist finds that I am extremely allergic to or­chids. The surgeon speaks gravely of my appendix anddemands a blood count; but the general practitioner­that grand old bulwark of the entire medical profession- he just pokes me in the liver and looks at my tongueand says, 'It must have been something you et. "

"As a matter of fact, it's a wonder I didn't become amusician, for when I was a small boy my youthful friendsoften assured me that some day I would become a finesinger. This prophecy was not based on any vocaldemonstration, but, as I recall, they said they put it onthe ground that I had mockingbird legs."

To the Lion's Club in 1939, he said:"So far as athletic contests are concerned, I have not

had any particular qualifications - having been, duringmy youth, a rather indifferent football and baseball play­er; while the only water sport in which I have ever attain­ed much proficiency is gargling."

To the Arkansas Bar Association in "Things" in 1952(6 Ark. Law Rev. 337), he confessed:

"At the age of fifteen, I had a sobering experience, theimpact of which probably affected me in my adult years;I got kicked in the face by a horse."

Mr. Meek was a favorite of the Little Rock Rotary Club.On one occasion, he told Rotarians of his politicalcareer:

"I remember when, as a young man, I ran for City At­torney at Stuttgart. I really didn't want the office; but I letmy constituents sort of over-persuade me. They almosttwisted my arm to make me agree to run. But, after an­nouncing, I didn't shilly shally around. Without hedging,I came out with a pointed and constructive platfonm. Itold the people, first, that I stood for just laws; and sec­ond, for a greater and better Stuttgart. When approachedby the ministerial alliance, I told them pointblank that Iwas against sin, and likewise against all fonms of evil.But the last was going too far. It cost me the votes of atleast 200 sinners and of all the Republicans in the com­munity."

When speaking to the American Bar Association inChicago, he discussed his brief experience on thebench:

"Nor do I have occasion to blush at my service on thebench because, while I entered only one order beforeyielding the enmine, nevertheless the lawyers of SouthArkansas even to this day speak of that order as havingrepresented the wisest and best considered decisionever handed down from the bench of the OuachitaChancery Court. But whether or not such extravagantpraise be merited, I know that in making this I ruled fear­lessly and according to the dictates of my conscienceand better judgment; and my order (which received suchuniversal acclaim) was that the court should stand ad­journed until the return of the regular judge."

He would sometimes kid his audience, but alwaysgently. At the Attorney Generals' banquet he said:

"It's conceivable that I won't always be a lawyer. Ihave made the mistake, in my legal education, of con­centrating upon the statutes, rather than the court deci­sions; and so it is possible that some day the legislaturemay repeal the law I know. When this happens, I guess Iwill just have to give up the legal profession and be ajudge or an attorney general or something like that."

His closing remarks to the Arkansas Bankers in 1947is another example:

"But time marches onl And some day the trumpet willsound and Harry Meek will be gathered unto his ances­tors. And while creditors are proving claims against myestate, I'll be dwelling in the everlasting joy and in a stateof Elysian bliss. But however joyful I may be, when I walk

the golden streets one thing will be lacking and will marmy happiness; I know I'll be lonesome for the bankers!"

Some of funniest remarks are found in the speecheshe made during the dark days of World War II. Again, heused self-ridicule as his text:

"I will not attempt to review my military exploits otherthan to say that I was always imbued with a warlike andmartial spirit; and I rendered service beyond the call ofduty as the member of a very distinguished unit of kit­chen police. We considered ourselves a sort of a suicidesquad and resolved that if it came to the worst, we'd alldie peeling potatoes. But there came a day when of allthe men in our regiment I was singled out for specialconsideration. In fact, they prepared to call a court mar­tial in my honor; and they showed me a fonmidable writwhich read that on the__day of May, 1918, I didbacksass a second lieutenant, contrary to the Articles ofWar. When I saw this document I noticed it was headed,'The United States of America vs. Private Harry E. Meek';and I couldn't help but think what a omrsided contestthat wasl On one side there was the United States ofAmerica, with its teeming millions, and its territorial andinsular possessions, backed up by the world's greatestindustrial system and a gigantic Anmy and Navy; whileon the other side - there was just mel And what showdid I have in a contest like that? And the thought keptrecurring in my mind: If the United States wanted to haveanother scrap, why didn't she take on Russia or Japan orsomebody her size? Why did she have to pick on me?

And so for a while my prospects were most melan­choly. It was finally decided, however, that my offensecould be condoned without prejudice to the peace anddignity of shavetails; so I was released to resume mygrim duties as a fighting man in the Allied Cause. Andthereafter I led my squad through some very fierce mop­ping up operations - without losing a single mop; andon another occasion I led a detail of fearless warriorsover certain strategic terrain - picking up papers andcigarette butts."

In another address entitled "Washington, Napoleon,Wellington And Me", he again told of his own military ex­ploits during World War I:

"Another thing that impressed me deeply during Armydays was our bayonet practice. Our Lieutenant told usthat when we found ourselves fighting with bayonets wemust stick the Genmans in their stomachs. And he toldus that when we lunged at the enemy's stomach, wemust yell (which I thought would be easy enough forme); and he showed us the most approved methods ofsticking the Genman soldiers in their respective abdo­mens. I confess I didn't enter so enthusiastically uponthis program of evisceration. It occurred to me that Imight meet some big Genman who didn't want hisstomach stuck. And, anyway, how about my stomach?And when they told me the Genman bayonets were muchlonger than ours, I thought that maybe we ought to findsome way to compromise this war."

In this same speech, he made the followingoutrageous comparison:

"Now take the case 01 Washington: Washingtoncrossed the Delaware (and to that extent his careerrather closely paralleled mine, for I, too, have crossedthe Delaware); and down at Yorktown, Washington

continued on page 4

January 1978/Arkansas Lawyer/3

449 WASHINGTON BUILDING

WORLD·WIDE SERViCE FOR

PUOCEWI rtHt' Tt Mliltli.ti._ ,,,lulio..1 Stn­anls - lIor.lI, I~ £tlli·call, - For TM Good OfOur Stlto, Ollt eou.try lidOur (Iilllts.

NO EXPENSE TO THE ESTATE

MISSING

AND UNKNOWN HEIRS LOtATED

Fred Myers CompanyMyers Investigation Agency

• '-nml Inft,tll.ti," Strtiu • [.,1.,.. rIM" 'nutll.tiN• Mluill POlrHftl In,utll.tiN • (."Itltloll S.mu

••"'rtlUl "1'''.4

WASHINGTON. D. C.

Fred Myers, Owner and Manager14 Years Private Investigation ExperienceFormer Police OfficerMember, World Association of DetectivesFormer President, Arkansas Private

Investigators Association

PROFESSIONAL INVESTIGATORS

COURTS - LAWYERS - TRUST OFFICERSADMINISTRATORS - EXECUTORS

-.A-merican -.A-,.chiveJ -.A-JJocialionINTERNATIONAL PROBATE RESEARCH

Call •..DAY OR NIGHT

372·1809TOWER BUILDINGILITTLE ROCK

Service Directory

SERVING THE LEGAL PROFESSION WITH EXPERTISE INTHE FOLLOWING A~EAS:

Workmen's Compensation (Lump-Sum settlement Calcula­tions)

Evaluation of Lost Earnings Capacity from Partial or TotalPermanent Disability or Wrongful Death

Economic Valuation of Pecuniary Damages in Business Tort.Contract and Ant...Trust Cases

Chapter 10 & 11 Bankruptcy Reorganization PlansValuation of Minority Stock Holdings in Estate settlementsValuation of Future Earnings Capacity for Stock IssuanceEconomic Analysis for Charters or Branch Applications for

Financial Institutions

QUAUFIED AS EXPERT WITNESS INARKANSAS AND ALL

OTHER JURISDICTIONS1209 Rebsamen Park RoadLittle Rock, Arkansas 72202

(501) 661-D161

BEACH ABSTRACT' GUARANTY COMPANYREPRESENTING:

COMMERCIAL STANDARD TITLE INS. CO.ABSTRACTS---CSCROWS-TITLE INSURANCE

213 w. 2nd Sl - Little Rock, All<. - FA 6-3301

"A Division of Education andRasaarch Assoclatas, Inc."

ATTORNEY'S ECONOMICCONSULTANTS

PARAGONPrinting & Stationery Company

has been printing BRIEFS for over 35 years.May we be of service to you?

311 East Capitol 375-1281Little Rock