Welcomingback the

best.One of the finest representatives in legal

publishing has returned to Arkansas. Joinus in welcoming back Bill Margrave. It'sgreat to have someone like Bill working for

us when dealing with such an importantpart of our practice.

Bill, it's great to have you back inArkansas!

Bill MargrdvcMATTHEW BENDER & CO.3102 SeminolcNorth Lilllc Rod., AR 72116Business 374-8463.Residencc 834·8556

January 1987Vol. 21, No.1

OFFICERSLCI

ARKANSAS

rRichard F. Hatfield. PresidentJohn F. Stroud. Jr.. President-ElectSandra Wilson Cherry, Sec.-TreasurerRandall W. Ishmael. Council Chair

Wm. A. Martin. Executive DirectorJudith Gray, Assistant Executive

Director

EXECUTIVE COUNCIL

H. Murray ClaycombJohn D. Eldridge. IIIRobert S. HargravesDonald K. HarpRonald D. HarrisonJack A. McNultyW. Russell Meeks. IIIStephen M. ReasonerRobert G. SerioBobby E. ShepherdJames M. Simpson. Ir.Robert R. Wright. 1II

EX-OFFICIO

Richmd F. HatfieldJohn F. Stroud. Jr.Don M. SchnipperSandra Wilson CherryJ. Thomas RayRandall W. Ishmael

EDITOR

Ruth M. Williams. Director ofCommunications andPublic Relations

SPECIAL FEATURES REGULAR FEATURES

2 The President's Report

4 Law. Literature & Laughter

Labor and Employment Law:A Review of Principal Cases.

by Walter A. Paulson and6Michael S. Moore

A Glimpse at InsuranceLegislation with Robert

M. Eubanks III. State11Insurance Commissioner

14 Disciplinary Actions

George Rose Smith.17by Robert L. Brown

26 In Memoriam

29 Judicial Department Report

30 Executive Director's Page

31 Young Lawyers' Update

33 In-House NewsThe Arkansas Lawyer (USPS 546-040) ispublished quarterly by the ArkansasBar Association. 400 West Markham.Little Rock. Arkansas 72201. Secondclass postage paid at LillIe Rock. Ar­kansas. Subscription price to non­members of the Arkansas Bar Associa­tion $15.00 per year and to membersSID. 00 per year included in annualdues. Any opinion expressed herein isthat of the author, and not necessarilythat of the Arkansas Bar Association. orThe Arkansas Lawyer. Contributions toThe Arkansas Lawyer are welcome andshould be sent in two copies to the Ar­kansas Bar Center. 400 West Markham.Little Rock. Arkansas 72201.

All inquiries regarding advertisingshould be sent to The Arkansas Lawyerat the above address.

ON THE COVER:Justice George Rose Smith

knowledgeable. emphatic. to thepoint and somewhat intimidating- is profiled by Robert L. Brown asthe longest tenure in the history ofthe Arkansas Supreme Courtcomes to an end. On January I.1987. Juslice Smith retires from theCourt after 38 years of continuousservice. He leaves a legacy. Brownsays. which cannot be measuredin mere numbers.

January 1987/Arkansas Lawyer/l

THE PRESIDENT'S REPORT

TimeTo Take a Stand

By Richard F. Hatfield

The people of Arkansas havea problem, and those of us in thelegal profession have beenaccused by some to be a contribut­ing factor. The problem is thatmany Arkansans cannot buy lia­bility insurance for affordablepremiums and adequate cover­ages. Is this the lawyers' fault asmany in the insurance industryclaim? Some would blame lawyersfor encouraging lawsuits by dis­tasteful advertising, filing friv­olous lawsuits and keeping asystem with rules to prevent"justice." Some of these so-called"rules" are:

1. Joint and several liability - Adefendant who was found only ooe­percent negligent by the jury must payall damages awarded the claim­ing parties;

2. Collateral source rule - Whyshouldn't the jury know about hos­pitalization insurance or workmens'compensation payments received. byan injured. claiming party?;

3. Contingent fees - Encourageslawyers to file lawsuits regardless oftheir merit;

4. Punitive damages - TheseQwards are causing such highpremiums and lower limits of coverage;

5. Non-economy (pain and suffer­ing) damages - The awards are farout of proportion to merit.

Your Association is working onthese questions. A select commit­tee of attorneys who traditionallyrepresent both plaintiffs anddefendants have analyzed theissues and made recommenda­tions to your House of Delegatesand Legislative OversightCommittee.

Your lobbyist. Martha Miller,committee chair lim Moody and Ihave appeared before legislativecommittees, worked with other in­terested parties to determine the

21Arkansas LawyerIJanuary 1987

real cause of the problems andhave represented your Associa­tion's position.

ACTION TAKEN. Your House ofDelegates has taken the follow­ing action:

l. Supported Insurance Commis·sioner Robert Eubanks' proposals toobtain necessary information from in­surance companies to determine theextent of and reasons for the presentsituation regarding insurance cover­age and premium rates;

2. Supported a mandatory seat·belt law;

3. Proposed that the state adopt apolicy that punitive damages not beinsurance;

4. Dealt with frivolous lawsuits byinforming the legislature that Rule 11to the Arkansas Rules of Civil Pro·cedure (effective September 15, 1986)solves this problem by granting to thetrial judge very broad authority to im­pose sanctions, including legal fees,against a party taking a written posi·tion determined. to be without merit infact or law.

OPPOSED CHANGES IN CIVILJUSTICE SYSTEM. Several pro­posed changes in our civil justice

system have been opposed by theHouse of Delegates for the reasonthat no evidence from the insur­ance companies has shown thatthese changes will solve theproblems of reasonable, afford­able premiums and reasonablecoverages. Furthermore. somedeal with procedural matters re­served to the Supreme Court.These opposed changes include;

1. Joint and several liability rules;2. Collateral source rule;3. Dividing trials to decide liability

and damages separately;4. Limit on non·economic damages;5. Regulation of contingent fee

agreements.Each of us has a duty to "improve

the administration of justice." Wemust carry this out and can do so inthe following ways;

I. If you know of any changes of theAssociation's position which will im·prove our system, notify me;

2. CONTACT YOUR SENATOR ANDREPRESENTATIVE AND THE GOVER­NOR to let them know your feelingsAND WHYI;

3. Talk with your clients and friendsabout the problems and solutions tounderstand their views and help themunderstand the bar's position. Thismay be the most effective step!;

4. Notify the Association to let usknow of the situation in your area, sothat we can effectively represent you;

5. Keep up with the developmentsnow and during this legislativesession and continue with the aboveactions;

6. Support your Association's effortby your effort and LAWPAC contribu­tion.

These issues have resulted inmore media attention and attorneyinvolvement than any in recentmemory. Each of us has a duty.Spend at least one hour of yourtime and $50 of your money on thisvital problem. We must be pre­pared to step forward and takea stand. 0

"

©1986 \~St Publishing Co. 9338·819·86

1-800-328-0109(MN. AK 612/228-2450)p.o. Box 64526St. Paul. MN 55164-0526

rovena~.

more:'call or write today for more information WFSTT J\ l AT~or to arrange for a free WESTLAW I 1 LnVVdemonstration in your office.

ROO P. DURKEE9 Johnnycake Lanelittle Rock, AR 72211Phone: (res) 501/225--3652Little Rock 501/378-4676

irs

LAW, LITERATURE& LAUGHTER

ALMA-ATA, KAZAKH SOVIETSOCIALIST REPUBLIC - Theseries of columns on OUI Constitu­tion's Bicentennial is briefly inter­rupted for a report from behind theIron Curtain. Last year an Ar­kansas lawyer went to Moscow tonegotiate a protocol by which sev­eral political exchanges wouldoccur between "young leaders" ofthe U.S. and U.S.S.R. or, as onewriter put it, Yuppies and Ruppies.

The first exchange was in Ar­kansas last July. The Soviet dele­gation also visited Portland,Washington and New York. Thesecond exchange was in this, thecapital of Kazakhstan. We Ameri­cans also visited Moscow and willvisit Leningrad.

As Arkansas was the unknownU.S. heartland to the Soviets, sowas Kazakhstan to the Americans.One of the U.S.S.R.'s 15 republics,the Kazakh S.S.R. is in the center ofthe Eurasian continent. Its popula­tion of 15.5 million consists of 43%Russians, 30% Kazakhs and asmattering of Ukranians, Tatarsand Uzbeks.

As Little Rock was a small townto the Soviets, so was Alma-Ata tothe Americans. With a 1.1 millionpopulation, this city is nestled inthe foothills of the snow-cappedZailiysky Alatau mountains.Alma-Ata means "Father ofApples," and the abundance oforchards in the area confirms theaccuracy of the translation.

Here the Soviet and Americandelegations (15 people per country)met. The immediate cry soundedever so familiar: "Lawyers,lawyers everywhere!" On theAmerican side were five J.D.s. TheSoviets had two.

My first order of business was tomake friends with my Communistcolleagues. I made them promiseto assist me in time of legal diffi­culty, should such occur. Butwhere were they when I neededthem?

These Muscovites had rarelybeen to Kazakhstan, Alma-Atabeing three time zones from41Arkansas Lawyerllanuary 1987

,

By Vic Fleming

Moscow. Thus, they were illequipped to help me with localrituals. Especially"at mealtimes,when the crises occurred.

In the Soviet Union it is consid­ered rude not to follow the lead ofone's host. In contrast, hosts con­sider it their polite duty to intro­duce foreigners to local customs.I did not want to be rude, butthere were times when enoughwas enough.

There was the occasional dishthat I was obliged to eat beforeknowing the identity thereof. Isurvived valiantly when told half­way into one course that it con­tained the internal (and semi­external) organs of a lamb, ALLof them!

There were repeated toasts witha drink that, in local legend, stim­ulates the sexual hormones -

fermented mare's milk. That'smare, as in female horse. An inter­preter from Moscow was rightwhen, refusing to taste it. she de­clared, "The very thought of itmakes me ill." The first person inhistory to drink the stuff was thebravest ever - far surpassingwhoever ate the first egg.

We were served what, owing toa shortage of other meats, mostKazakhs eat a lot of in winter. Towit: horse. One never really knewwhen to expect the horsemeat - itappeared in hors d'oeuvres, maindishes and soups.

Finally, there was a riteadministered in the one householdinto which I was invited for dinner.The main dish of lamb wasbrought to the table succulentlycooked with onions, peppers andpotatoes. Everyone had a plate ex­cept me.

I realized something else wascooking. In walked the host with alarge platter. He announced that.according to Kazakh custom, thehonored guest received the specialdish. He then set before me thelamb's head! That's head. as inface, ears, nose, mouth and chin.

I did not want to create an in­ternational incident. but it wastime for me to speak. "Many thingsthat once were customs in mycountry," I said, "are now illegal.Or at least inequitable. May I havea moment to call my lawyer todetermine whether I will bebreaching any law by consumingthis dish?"

I'm not satisfied the translatorconveyed the message accurately,but the request was not honored.So I ate face of lamb, trying not tothink about Bo Peep, Mary and thelittle boy who cried "Wolf."

On my return to America whenasked by friends about Sovietpeople, I will say, "They are justlike you and me. They eat horse­meat. They drink old, sour mare'smilk to improve their love life. Andwhen you try to consult a lawyerabout your rights, they force you toeat the head of a lamb." 0

For information regarding bequests, please contact tile Arkansas Children's Hospital Foundation,800 Marshall Street, Little Rock, AR 72202 (501) 370-1470.

January 1987/Arkansas LawyerlS

ARKANSAS

CHILDREN'SHOSPITALYour children are our children.

appreciated. They can even be designatedto help a specific medical program offeredby the hospital.

Please join us in planning for the futurefor Arkansas' children. Because your chil­dren are our children.

Where there's awill, there's awa~How does Arkansas Children's Hospital

maintain its position as one of the finest and20 largest pediatric hospitals in America?

One important way is through the sup­port of the Arkansas legal community­especially in the form of gifts provided inwills.

If you are asked by your clients for sug­gestions on charitable bequests, we hopeyou will consider recommending ArkansasChildren's Hospital-because no moreworthwhile beneficiary can be found thanArkansas' children.

Gifts of all types, including cash, securitiesand property are appropriate and deeply

LABORAND EMPLOYMENT LAW

A REVIEW OF PRINCIPAL CASES

This has not been an easy timeto practice employment law.

The courts have not been pre­dictable, as many had thought.The nation's highest court hasbeen in disagreement on keyissues, with decisions, whengiven, resembling "card-houses"aligned and capable of tumblingwith the slightest breeze. TheEighth Circuit, though professingin some cases to try, has beenmore successful at establishingconsistency. faring badly in theattempt if only because, unlike theSupreme Court. it must actthrough panels.

LABOR LAW

PreemptionThe U.S. Supreme Court heard

and decided three cases dealing6/Arkansas LawyerlJanuary 1987

with NLRA preemption in whatwas otherwise an unremarkableterm as far as "pure" labor casesare concerned.

In International Longshore­men's Association, AFt-CIO v,Davis, __ U.S. __,122 LRRM2369 (May 27, 1986), the SupremeCourt held that a union had failedin its proof to establish that con­duct-union organizing activity bya supervisor-was "arguably pro­tected or prohibited" by the Na­tional Labor Relations Act and,therefore, preempted from statecourt interference. The supervisorhad sued the union for misrepre­sentation when, after his dis­charge, the union failed to get himreinstated with backpay as it hadpromised during the organiza-

By Walter A. Paulsonand Michael S. Moore

tional campaign. To prevail on thepreemption question, the unionwas required to show that thesupervisor was a statutory"employee" and entitled to theact's protection. No evidence hadbeen offered on that issue and theCourt held that the union's mereassertion was insufficient to sup­port a judicial finding of arguablyprotected conduct under theGarmon doctrine.

On a second issue, the Courtreversed the Alabama court's de­termination that the preemptionissue, raised after the jury award,was untimely and/or waived. TheCourt held that preemption wasgoverned by federal law and couldbe raised at any time as a non­waivable foreclosure of the statecourt's jurisdiction. 1

In another Garmon doctrine

preemption case, Bakerv, GeneralMotors Corp.. __ U.S. __, 106S.Ct. 3129 (I986), the Court heldthat the NLRA does not preempt astate's statutory denial ofunemployment benefits to laid-offworkers who are alleged to becausing their own unemploymentby "financing" the labor dispute.The Court first found that the statehad identified a "meaningfulconnection" between the paymentof emergency dues for strike sup­port, the strike itself and the ensu­ing layoffs. The Court then lookedto the legislative history of the So­cial Security Act. finding congres­sional intent to leave the statesfree to administer unemploymentprograms and to distinguish be­tween voluntary and involuntaryunemployment. fn light of that actand Congress' intent, it could notbe said that the NLRA was in-

tended to prohibit by preemptionthe ability of states to make suchpolicy decisions.'

On the other hand, however, theCourt found preemption underGarmon in Wisconsin Dept. of In­dustry v. Gould, __ U.S. __,106 S.Ct. 1057 (1986). In Gould, statelaw forbidding state purchasesfrom repeated NLRA violators wasfound to be preempted by theNLRA. The Court refused to allow astate to escape the Garmon pro­hibition of separate regulation orremedies on the ground that it wasexercising its spending powersrather than its police powers. Norwas the state's participation as amere consumer in the market con­trolling, since there is anestablished distinction betweenstate and private interferenceunder the act.

Finally, in Golden Gate Transit

Corp. v, Los Angeles, __ U.S.__, 106 S.C!. 1395 (I986). theCourt would not allow a city to con­dition the renewal of a taxi fran­chise upon the resolution of a labordispute between the taxi companyand its employees. This condi­tional approach interfered withthe balance of power Congressintended to create between em­ployers and workers, and wastherefore preempted by the NLRAunder the Machinists doctrine.That doctrine, as distinguishedfrom Garmon. recognizes preemp-

Editor's Note:Walter A. Paulson, of Little Rock,

is chair of the Arkansas Bar Associ­ation's Labor Law Section and is apartner in the Friday, Eldredgeand Clark law firm. Michael S.Moore is an associate in the firm.

January 1987/Arkansas Lawyern

tion when a state (or politicalsubdivision), even though exercis­ing a traditional governmentalfunction, intrudes impermissiblyupon the collective bargainingprocess, denying to one party inthe process a weapon Congressintended to be left to the free playof economic forces.AMOCO IV Rejected

In a case described as a raredeparture" from the Court's spe­cial deference to the NLRB in repre­sentation cases, the SupremeCourt in NLRB v. Financial Inslilu­tion Employees Local 1182. __U,S. __. 106 S.Ct. 1007 (1986).overturned the Board's rule allow­ing non-union employees to vote ina certified union's decisionwhether to affiliate with anotherunion. The Court viewed this as aninternal union matter and viewedthe Board's rule as contrary to thegoal of labor peace and inconsis­tent with the NLRA. Under this newformulation, only if the affiliationsomehow raised a question ofrepresentation would the actauthorize the Board to conductan election.

EMPLOYMENT LAW

Affirmative ActionSince its decision in Firefighters

Local Union No. 1784 v. Stotts.__ U.S. __. 104 S.C!. 2576(1984), the Court has taken severalcases raising affirmative actionissues, apparently in hopes of lay·ing the subject to rest. Instead, cpolarization seems to have devel­oped on the Court and opinions areforming from pluralities, collectedconcurrences and partial dissents.It remains to be seen whether theappointment of Justice Scalia willaffect this tenuous balance.

In Local 28. Sheet MetalWorkers' International Ass'n v.EEOC. __ U.S. __. 106 S.Ct.3019 (1986). the Court consideredwhether court-established "goals"violated either Title VII or theEqual Protection/Due Processclauses. A key issue in this casewas whether it is permissibleunder §706(g) of the 1964 CivilRights Act to provide race­conscious relief which benefitspersons who are not actual victimsof discrimination ("non-victims").A four-justice group held that§706(g) did not bar such relief ­8/Arkansas Lawyer/January 1987

here a "goal." but Court-orderedand subject to stiff contempt finesif not met by a certain date. Thesejustices were joined by one whoconcurred only if the relief did notrequire the laying-off of non­minorities; another justice dis­sented because the order wasviewed as a quota, not a goal. butwould support relief for non­victims if limited to goals; finally,two justices would disapprove anyracial preference for non-victims.

In Local 93, Firefighters v.Cleveland. 106 S.Ct. 3063 (1986).the Court reviewed race-consciousrelief in the context of a consentdecree. Here the vote was 6-3 ap­proving such relief. Whatever thelimits placed upon courts under§706(g), a consent decree-avoluntary settlement-may underWeber include reasonable race­conscious relief that includes non­victims. even if that relief isbroader than the court might haveawarded at trial. The Court basedits reasoning in part on the conceptthat, since §706(g) was written inpart to preserve managerial dis­cretion, it did not make sense toapply it as a strict limitation in avoluntary setting. By contrast,Stotts was an attempt by a court tomodify a consent decree in a man­ner inconsistent with the statute.

In Wygant v. Jackson Board ofEducation. __ U.S. __. 106S.Ct. 1842 (1986), the Court in yetanother 5-4 decision consideredthe legality of race-conscious lay­off clauses in a collective bargain­ing agreement. The clause in ef­fect required the layoff of tenurednon-minority teachers while lesssenior probationary minorityteachers were retained. The ma­jority in this opinion was obtainedby a concurrence which would dis­approve any layoff decisionsmade solely on the basis of race,with no more justification than thisrecord provided. as violative of theEqual Protection Clause. At leastthree justices expressly dis­approved of the "role model"theory (minority children requireminority teachers as role-models)advanced by the defendant Boardas a reason for its lay-off policy.The Court applied "strict scrutiny"analysis and found that the meansused were not narrowly tailored toachieve a compelling state in­terest; the clause was thereforeunlawful.

Sexual HarassmentThe Supreme Court Meri tor

Savings Bank v. Vinson. __ U.S.__, 106 S.Ct. 2339 (1986), con­sidered a court of appeals decisionwhich would have applied abso­lute liability, without employernotice of the offending conduct, forsexual harassment. The court ofappeals had remanded becausethe district court failed to considerthe facts under the "hostile en­vironment" theory - that is, unlikequid pro quo harassment whichwithholds or promises a benefit.this harassment is not conditionedper se upon a benefit. but ratherlooks to the intolerable, offensiveor abusive nature of the environ­ment created in the work place bysuch harassment.

The Supreme Court. as ex­pected, recognized the "hostileenvironment" cause of action,3 butdeclined the invitation to state adefinitive rule on employer lia­bility (absolute or otherwise). In­stead, the Court invited the courtsto look to traditional agencyprinciples to determine whetherliability should apply in a particu­lar case. Employers under thoseprinciples are not "automatically"liable for the acts of supervisors,but by the same token cannot"automatically" defend becausethey have an anti-sexual harass­ment policy or because they hadno actual notice of the harass­ment. The Court cited theRestatement (2d) of Agency §228,which provides that the conduct ofa servant is within the scope of em­ployment only if it is the kind he isemployed to perform and is actu­ated at least in part by a purpose toserve the master. For future protec­tion, then, every employer shouldconsider adopting a strong anti­sexual harassment policy whichincludes a grievance procedureand, where applicable. providesthat a grievant may circumvent orbypass the harasser and complainto higher management if he or shewishes.

Attorneys' FeesThe Court decided several in­

teresting issues concerningattorneys' fees in civil rights (orother statutory fees) cases. Lastyear, the Court had determinedthat attorneys' fees could be in­cluded in the lump sum offer ofjudgment (Rule 68. Fed. R. Civ. P.l,

and that if a subsequentlyobtained judgment is less than theoffer, the defendant would not beliable for attorneys' fees incurredafter it was made. Marek v,Chesney, 473 __ U.S. __,(1985). It next looked at whether§1988 requires federal courts todisapprove proposed settlementsof civil rights class actions whenthe relief offered equals or exceedsthe probable outcome at triaL butis expressly conditioned uponwaiver of statutory eligibility forattorneys' fees.

In Evans v. Jeff D., __ U.S.__, 106 S.Ct. 1531 (1986), theCourt decided that 42 U.S.C. §1988does not require federal districtcourts to disapprove suchsettlements. The Court referred toits earlier opinion in Marek, whichhad noted the importance of reso­lution of fees issues to defendantsin such cases, and ruled that any"dilemma" created by theattorney's apparent conflict wasnot an ethical one. The Court wasconcerned that any general pre­scription against a negotiatedwaiver of fees might impede vindi­cation of civil rights in some cases.

Next the Court consideredwhether a plaintiff could recover afee for work performed in adminis­trative proceedings, and whethersuch an award can be adjusted up­ward for "high quality" or the con­tingent nature of the compensa­tion. In Pennsylvania v. DelawareValley Citizen's Council for CleanAir, __ U.S. __, 106 S.C!. 3088(1986), the Court held that aplaintiff could recover fees for timespent by an attorney in adminis­trative proceedings to enforce aconsent decree under the CleanAir Act (or, by implication, §1988).The Court also held that a"lodestar" fee should not be ad­justed upward for superior per­formance, since the lawyer's abil­ity should already have been ac­counted for in the lodestar. Whilethe Court declined to decidewhether upward adjustments forcontingencies are appropriate,there were strong hints in theopinion that they would unlikelybe approved.

In City of Riverside v. Rivera,__ U.S. __, 106 S.Ct. 2686(1986), the Court determined thatthe amoun t of fees available toprevailing parties in civil rights

cases was not limited by theamount of damages recovered. A5-4 Court refused to apply aproportionality rule. Again, onlythe concurrence of one justice whojoined the result but not thereasoning-Justice Powell feltconstrained to uphold the explicitand careful findings of the trialcourt under Rule 52-kept the casefrom going the other way.

MiscellaneousThe Supreme Court in Bazemore

v. Friday, __ U.S. __, 106S.Ct. 3000 (l986), held that theCourt of Appeals had erred in re­fusing to accept a multiple regres­sion analysis offered by plaintiffson the ground that it did notcontain certain relevant factorswhich were measurable and werethought to have an effect uponsalary. The Court agreed that fail­ure to include such variables mayreduce probative value, but heldthat "normally failure to includevariables will affect the analysis'probativeness, not its admissi­bility." The Court also upheld thedistrict court's refusal to certify astatewide class because this ap­peared to be an attack upondecisions which were madeindependently county-by-countyand there was no evidence of astandardized practice.

On perhaps the key issue in thiscase, in apparent affirmation ofthe adage "good cases make badlaw," the Court held that wherethere were separate black andwhite employee-salary structuresprior to the Civil Rights Act, andthese separate pay systems weremerged in 1964 without curing theexisting disparities, anydisparities that remained in effectafter 1972 (the year the law was ap­plied to local governments) werepart of a pattern and practice ofTitle VII violations. According tothe Court, each week's paycheckwas a new violation and was ac­tionable regardless of the fact thatthe practice was implementedprior to the effective date of TitleVII. The Court distinguishedEvans v. United Airlines becausein Evans the employer was nolonger engaged in discrimination.The current plan, by contrast, wasa mere continuation of the pre-1965discriminatory pay structure.

In its most recent statement con-

cerning claim preclusion in civilrights cases, the Court in Univer­sity of Tennessee v. Elliott, __U.S. __, 106 S.C!. __ (1986),held that the decision of a state ad­ministrative agency acting in a ju­dicial capacity will have pre­cl usi ve effect in cases underReconstruction Era civil rightsstatutes, but not under Title VII. Inthe former, if disputed issues prop­erly before the agency are re­solved, and the parties had ade­quate opportunity to litigate, thedecisions are to be given the samepreclusive effect to which theywould be entitled in the state'scourts. Such administrativeproceedings do not have pre­clusive effect under Title VII. how­ever, because Congress did not in­tend thai result. according to theCourt's review of the statute andrelevant legislative history.

While not all that important as aFair Labor Standards Act case,Icicle Seafoods. Inc. v. Worth­ington, __ U.S. __, 106 S.Ct.__ (1986) is a helpful post­Anderson v. Bessemer City caseclarifying the Supreme Court's in­terpretation of Rule 52(a), Fed. R.Civ. P. In Icicle Seafoods, the NinthCircuit had employed "de novo"review of a trial court's determina­tion that certain employees wereexcluded from overtime benefitsbecause they were "seamen." Theappeals court had reversed,reviewing the application of thelaw-in this case the FLSA exem p­tion-de novo, but applying theclearly erroneous standard to thelower court's fact findings.

The Supreme Court held that thecourt of appeals had insteadmerely determined that the districtcourt applied the wrong legalstandard, then applied the correctstandard to its own review of thefacts. This it could not do. A properapplication of Rule 52(a) requiresthat a court of appeals may not en­gage in fact-finding. If the appel­late court determines that the trialcourt has applied an incorrectlegal standard, and has not madefact findings necessary to a properresolution, the case should beremanded for proper findings andan application of the correctstandard. In no case should anappeals court simply make factualfindings on its own.

January 1987/Arkansas Lawyer/9

EIGHTH CIRCUIT DECISIONS

In Nolting v. Yellow Freight Sys­tem __ F.2d __,41 FEP cases1069 (8th Cir. 1986). a panel con­sidered a challenged jury instruc­tion in an ADEA ("Age Act") case.The instruction given at trialwould establish a "businessnecessity" defense to disparateimpact allegations made againstan employer, if the employer couldshow that a business purpose was"significantly served" by the chal­lenged neutral practice. The ap­pellant had urged that the em­ployer was required to show a"compelling need" for the practice,relying upon Leftwich v. Harris­Stowe State College, 702 F.2d 686(8th Cil. 1983). The Court ofAppeals, after reviewing theconflicting cases, adopted the"significantly served" language.Nolting is important because itarguably applies more broadlythan Age Act cases. The Court ofAppeals relied upon eight cases,only one of which was an Agecase, and the court applied NewYork City Transit Authority v.Beazer. 440 U.S. 568 (I 979). Beazerestablishes the proposition that anemployer is not required to show a"compelling need" in order topresent a business necessity de­fense. Instead, as the court held inNolting. supra. the test is whetherthe employer's legitimate employ­ment goals of safety and efficiencyare "significantly served by­even if they do not require" the ruleor practice in question. ld.. citingBeazer. supra. There is now a verydecisive split among panels in thisCircuit on the test to be applied.'

In Schneider v. Jax Shack. Inc..__ F.2d __,41 FEP Cases 266(8th Cir. 1986), a panel with onejudge dissenting reversed the dis­trict court dismissal of a suit alleg­ing sex discrimination in a dis­charge from employment. Thecomplaining employee, upon noti­fying her employer she was preg­nant, was told that she would haveto give up her current bartenderduties on a specific date becauseof the risks to her condition andthat she might instead work part­time as a cocktail waitress. Al­though she was later told shecould work full-time as a waitressduring January, she resigned say­ing she had found another job.Relying upon Johnson v. BunnylO/Arkansas Lawyer/January 1987

Bread Co.. 646 F.2d 1250 (8th Cir.1981). the trial court found thatthose facts did not constitute a"constructive discharge," sincethere was apparently no intent toforce her to resign when the actionwas taken. The Court of Appealsovercame this precedent by find­ing that this was an "actual" ratherthan a constructive discharge, be­cause the future prospects of con­tinued work were so nebulous.While not all reassignments in­volving a reduction in hoursshould be viewed as discharges,in the proper case. after consider­ing the realities of the situation, acourt may determine whether adischarge "has in essence oc­curred." Johnson. supra at 1256,defines constructive discharge as"when an employer deliberatelyrenders the employee's workingconditions intolerable and thenforces him/her to quit his/her job."Apparently, a decision reversingthrough application of Johnsonwould have required a "clearlyerroneous" finding by the Court ofAppeals; this resolution did not.Instead, we now have at leastthree forms of discharge in thiscircuit: "actual actual" (in whichthe employee is not discharged),"in essence actual" (in which theemployee is not discharged, butseems to be) and "constructive" (inwhich the employee is also notdischarged, but the employer actswith the intent to force him/herto quit).

In Hervey v. City of Little Rock.__ F.2d __,40 FEP 928 (8th Cir.1986), after reviewing and approv­ing post-trial class decertificationin reliance upon Falcon and Roby.supra. the Court of Appeals turnedits attention to consideration of theremaining individual cases. In sodoing, the court decided two is­sues which have broad applica­tion: First. the court held directlythat a female claimant could notenforce her time-barred Title VIIsex discrimination claim through42 U.S.C. §1983. The court also con­sidered the proof requirements in"mixed motive" cases involvingalleged violations of 14th Amend­ment equal protection rights. Thecity's burden was described as one"of establishing that the same de­cision would have been made ab­sent the discriminatory motive

." In such cases. there is no

violation because "sufficientcausation (does) not exist betweenthe sexually discriminatory factorconsidered and the resulting pro­motion decision. .." The courtdistinguished this mixed motivetest from that applied in Title VIIcases, wherein liability is found ifthe routine is at all discriminatory.but any remedy, such as an awardof promotion, backpay or the like,may be avoided by a "same deci­sion" showing by the employer.Bibbs v. Block. 778 F.2d 1318,1323-24 (8th Cir. 1985).

In case anyone thought thatBaker and Golden State Transit(reviewed supra) gave all theanswers, the Eighth Circuit hasalready distinguished them inUnited Steelworkers of AmericaAFL-CIO-CLC v. Johnson. 799 F.2d402 (8th Cir. 1986). There the Courtreviewed a South Dakota statutewhich paid unemployment bene­fits to locked-out non-unionmembers. but not to unionmembers. who were determined tobe out-of-work because of the orig­inal strike which had precipitatedthe lockout, and who were there­fore ineligible for benefits. TheCourt of Appeals, finding that thisdistinction substantially alteredthe balance of power intended tobe created by Congress under theNLRA, found the statute to bepreempted under Garmon andBrown v. Hotel and Restaurant Em­ployees. 468 U.S. 491 (1984). D

FOOTNOTESI Compare Belknap. Inc. v. Hale. 463 U.S.

491 (1983).2 The Court had spoken 10 the "flip-side" 01

this coin in New York Telephone Co. v.New York Dept. 01 Labor. 440 U.S. 519(979). There the Court held that the NLRAdid not preempt a state's power to payunemployment benefits to strikers.

J The Court carved out a somewhat vaguesemantical distinction betweenvoluntarism and "unwelcome" sexualadvances. The issue. said the Court. is notwhether the acquiescence or acts of theplaintiff were voluntary but ratherwhether the advances were··unwelcome."

~ The Nolting court pointed out that someEighth Circuit decisions describe the de­fense as requiring that the employer"must show a manifest relationship to beemployment . .. and that there is a com­pelling need . . .," quoting Leftwich v.Harris-Stowe State College. Supra:Hawkins v. Anheuser-Busch. Inc.. 697 F.2dBID. BlS (Bth CiT. 19B3); and Kirby v. ColonyFurniture Co.. 613 F.2d 696. 705 N. 6 (BthCiT. 19BO); or. in the alternative. as requir­ing a showing that the "practice is 'neces­sary to safe and efficient job perform­ance· ... ld.. citing McCosh v. City of GrandForks. 62B F.2d IOSB (Bth CiT. 1980), andRoby v. St. Louis Southern Railway Co..775 F.2d 959. 963 (8th CiL 19851.

AGLIMPSE

ATINSURANCE

LEGISLATIONState Insurance Commissioner

With Robert M. Eubanks III

In the last two years. much has been said anddone concerning tort reform and insurance reform.Forty states have enacted measures that addressour system of civil justice. A like number of stateshave expanded their regulation o( insurance and

established voluntary or mandatory marketassistance programs to find or provide liabili­ty insurance of one form or another.

Their actions follow no patterns. Asurprising number have abolished joint

and several liability altogether. whileothers have made significant mod­

ifications. Eight states haveaddressed fees. nine states havemodified the collateral source ruleand 18 states have capped dam­

ages in some fashion. It is clear asignificant portion o( our popula­tion has taken the position that

civil justice can and mustbe improved.

When Arkansas' 76thGeneral Assembly con­venes on Monday. January12. 1987. it will (ace manycritical issues. not the leastof which will be insurance.The Arkansas InsuranceDepartment began submit­ting proposed legislationto the Joint Interim Com­mittee on Insurance andCommerce in April of lastyear. Although the corner­stone of our legisla­tive package addresses the

______ .~ most urgent matter of~ dramatic increases in

property and casualty in­surance premiums. we feel

January 1987/Arkansas Lawyer/tl

"We feel ameaningfulcompetitiverating lawand improvedrural fireprotectionmerit themost concern,"

a meaningfulcompetitiverating law andimproved ruralfire protectionmerit the mostconcern.

The presentlaw on compet­itive rating re­quires that for arate to be ex­cessive. it mustbe determinedthat the pre-mium is toohigh for the

coverage provided and that areasonable degree of competitiondoes not exist in that area. Noguidance is provided to makethese determinations. We needclear definitions of these and otherterms to provide the methodsnecessary for establishing therates to be used in Arkansas.

Our proposal revamps the com­petitive rating law to prohibit ratesfrom being excessive, inadequateor unfairly discriminatory; toprohibit price-fixing and otheranticompetitive behavior; to pro­mote competition; to provide reg­ulatory controls in the absence ofcompetition; and to require the in­surance industry to provide priceand other relevant information topurchasers of both personal andcommercial lines of insurance.

Rates will be determined by giv­ing consideration to past andprospective loss and expense datawhich is within and outside Ar­kansas, by the catastrophichazards which may occur, byevents or trends and by all otherrelevant factors including judg­ment. All submissions for ratechanges will include Arkansasand national experience for thepast five years. The credibilityassigned to Arkansas must befully explained.

Noncompetitive markets are rec­ognized and defined under theproposal and specific require­ments are set out for rate filings inthese areas. If rates do not followthe statutory guidelines for thesenoncompetitive areas, the insur­ance commissioner shall order therates discontinued and may reim­pose the previous rate in effect incertain situations.

A provision in Section 7 of theproposal requires 60 days written121Arkansas Lawyernanuary 1987

notice to the insured if a renewalpremium will increase by 25 per­cent or more as a result of a filedrate revision.

Section 8 of the proposal pro­vides that where a reasonable de­gree of competition may not exist.the insurance commissioner, priorto a hearing, may order the sus­pension prospectively of a ratefiled and reimpose the previousrate if. among other con­siderations, the hardship insuredswill suller without the suspen­sion outweighs any hardship tothe insurer.

The proposal also containsreporting provisions, guidelinesfor voluntary residual market ac­tivities. consumer information sys­tems to disseminate price andother relevant information for com­mercial and personal lines of busi­ness and penalties of up to $10,000for each wililul violation of the law.

The revamped law will in manyways help ensure proper rates,but it might prove to be a two­edged sword.

In 1984, Arkansas had thesecond worst loss ratio forfarmowners, the worst for alliedlines and was second only to NewYork in general liability lossratios. According to the NationalAssociation of Insurance Commis­sioners' 1985 profitability resultsfor Arkansas, underwriting losseswere experienced in private pas­senger auto liability, privatepassenger auto physical damage,commercial auto liability, home­owners' liability, farmowners' lia­bility, commercial multiperil,medical malpractice, other lia­bility and workers' compensation.Alter investment gain and taxeswere applied, only three of theselines of insurance showed posi­tive results.

Clearly, much must be done toimprove the overall prospects foraffordable and stable insur­ance rates.

While liability rates merit muchattention, the plight of our ruralhomeowners and farmowners is tomany individuals deserving of themost relief. There's no reason todoubt the property companies' es­timate that more than 30 percent ofArkansas fire losses are sus­picious in nature. The responsetime in many rural areas is woe­fully inadequate, due in part to alack of communications and, ulti-

mately, a lack of funding.To improve rural fire protection,

the Insurance Department is con­templating legislation that wouldseek a one time, one eighth of onepercent increase in property andcasualty premium taxes. The$500,000 generated by the increasecould be granted to a non-profitcorporation for distribution to ruralfire departments to upgrade or es­tablish communications systems.The corporation could also providerewards for arson information.While not a total solution to theproblem, such legislation pro­vides a good start toward decreas­ing rural fire losses and places re­sponsibility for success on the firedepartments and the privatesector instead of on a govern­ment agency.

It should be noted that the state'sfire chiefs want to add a perma­nent one quarter of one percentpremium tax increase to fund theinvestigation of suspicious fires.Clearly, only so much may beadded to the present premiumtaxes which are ultimately paid byArkansas citizens.

The bulk of insurance legisla­tion concerns property and casu­alty matters. The measures arenumerous and mostly minor in na­ture. The Insurance Department'slegislative package will address:

'Availability. Addressed in twoseparate fashions, the legislationrelies on the insurance industry topropose a property and casualtymarket plan for coverages notreadily available in the voluntarymarket. The plan must be submit­ted to and approved by the insur­ance commissioner. If the plan isrejected by the commissioner orlater found to be inadequate, a risk­sharing plan developed by thecommissioner may be created torequire the mandatory participa­tion of all insurers licensed or au­thorized to do business in Ar­kansas. Although committed to theconcept of a free, competitivemarket. the Insurance Departmentwill not hesitate to compel a man­datory program if the voluntarymarket cannot respond to a criticalarea of need. It should be notedthat a mandatory risk-sharingplan, like a guaranty fund assess­ment. could have an adverse im­pact on state revenues in the formof credits for premium taxes owed.Arkansas consumers will support

,

this bilL as well as some agentsand brokers. Licensed propertyand casualty insurers will not sup­port it and may oppose its passage.

"Guidelines for cancellation ofcommercial insurance coverages.If an insurer has been on a risk 60days, it may not cancel the policyexcept for nonpayment of premium(in which case 10 days notice is re­quired prior to cancellations);fraud or a material misrepresenta­tion of a risk that would havecaused the insurer to decline cov­erage; a material change in the ex­posure or hazard of an insured;and failure to meet the require­ments of applicable health andsafety codes. Twenty days noticeof cancellation would be requiredwith the exception of nonpaymentof premium.

-Minimum standards for com­mercial property and casualtypolicies. One proposal allows theinsurance commissioner, after ahearing, to promulgate rules andregulations. The other proposalsets out in statutory form the mini­mums required. The insurance in­dustry will certainly object tostatutory minimums, citing in­creased costs, lack of flexibilityand insured flight to the surplusmarket. Both forms have appealand a combination of the two willmost likely be enacted.

·Specific criminal provision formaterial misrepresentations in thesale or replacement of medicaresupplement policies. The level ofcontroL as well as enhanced re­medial measures, will be soughtfor bail bondsmen and insur­ance agents.

"Self-insurance programs for thestate automobile fleet. stateproperties and fidelity bonds re­quired of state, municipal andcounty officials. The Insurance De­partment has been instructed bymembers of the Arkansas Legisla­ture to establish such programs.The department is confident thatthe state fleet and the fidelity bondprograms can be underwritten at asubstantial savings to Arkansastaxpayers. The state property pro­gram would be a mammoth projectthat might need several years to beestablished.

·Sale of insurance agencies. un­authorized insurers. amusementrides. confidentiality of certaindata and reports generated by theNational Association of Insurance

Commissioners and immunity forproviding information on fraudu­lent insurance acts. Some form ofimmunity for volunteer firefighterswill most likely be proposed, aswell as protection for directors andollicers of non-profit corporations.

"Life and Health Guaranty Fund.A Life and Health Guaranty Fundwill be proposed again this ses­sion. Similar to the Property andCasualty Guaranty Fund whichhas paid out almost $9 million in 18months, a Life and Health Fundwould provide a safety net to Ar­kansas citizens.

·Premium tax on domestic lifeand health companies. Such a taxwill likely be enacted but. as yet,the form of the legislation has nottaken shape.

. Minor modifications to theProperty and Casualty GuarantyFund Act. These should not causeany controversy since they are"housecleaning" measures. How­ever, a separate amendment hasbeen drafted to exclude surety andfinancial guarantee coveragesfrom the fund. While it is not ex­pected this proposal will be en­acted, attention should be drawnto the fact that these types of"insurance" are unique and havehad an adverse impact on theguaranty fund and the state's gen­eral revenues. The potential forfurther losses is enormous.

"A bill which prohibits the inclu­sion of punitive damages withinpolicy limits. It is wrong to allow adefendant to avoid the quasi crimi­nal punishment that punitive dam­ages envision, although one mustrespect the concern of the insur­ance industry and defense bar thatimportant leverage may be givento a plaintiff's negotiation posture.

One recent development on lhefederal level is of great importanceto Arkansas. On October 27, 1986,President Reagan signed into lawan amendment to the Product lia­bility Risk Retention Act of 1981which broadened the act's scope toinclude all liability, with the ex­ception of personal liability andworkers' compensation.

Now, a liability carrier will needonly to be licensed in one state toprovide group liability coverage topersons nationwide. The "group"is restricted to members whosebusiness or activities are similarin respect to the liability exposurethey share in common which may

be "any related, similar, orcommon business. trade. product.services. premises. or operations."

These new "insurance com­panies" will be required to notify astate of their intentions to conductbusiness in that state and file ayearly financial statement. Giventhe lessons that insurance regula­tors have learned in the not too dis­tant past about the consequencesof inadequate pricing, poor man­agement and lack of regulation, itis not hard to imagine that thisamendment could provide morethan enough rope to hang an arrayof "groups. "One other fact must benoted and that is the lack of a stateguarantee fund to make good thepromise of indemnity if arisk retention group becomesinsolvent.

All things considered, the pro­posals of the Arkansas InsuranceDepartment will have positiveramifications for the state's insur­ance consumer. Notice and ac­countability to the consumer, aswell as to the Insurance Depart­ment, are reasonable and wellthought through. While the workrequired of the Insurance Depart­ment will greatly increase, marketconditions, an increased budgetand automation should helpaccomplish our stated goal ofstable and allordable insurancerates for our citizens. D

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Current and complete set of Am JUT

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Office space for rent in Landmarkcommunity of Pulaski County. Bethe first lawyer in a community of3400 households! Contacl Dr. LorryFincher, 888-6230.

Entire law practice, includinglibrary, equipment and building forsale; sole practitioner in NW Ar­kansas. Wonderful location. Sendor phone inquiries to Lawyer,Arkansas Bar Association. 400W. Markham, L. R., AR 7220 I.

January 1987/Arkansas Lawyer/13

DISCIPLINARY ACTIONSAugust to October

The Arkansas Supreme CourtCommittee on Professional Con­duct from August to October 1986,issued seven letters of reprimandand three letters of warning. TheCommittee voted "no actionwarranted" on 14 formalcomplain ts and 88 informalcomplaints. It accepted threesurrenders of license. The Com­mittee voted on September 13 toask the state Attorney General'sOffice to notify Harry E. Claiborne,the impeached federal judge andArkansas native. to surrender hislicense in 30 days or face a disbar­ment suit in Pulaski Circuit Court.Claiborne did not reply to the re­quest by the deadline.

TERRY LYNN FOREMANSurrender of License

Terry Lynn Foreman, of WestFork, Arkansas, and Tallahassee.Florida, voluntarily surrenderedhis license to the Committee due toviolation of Rule 8.4(b) of the ModelRules of Professional Conduct con­cerning performance of a criminalact. Foreman was found guilty onAugust 5, 1983, of possession withintent to distribute marijuana andconspiracy to distribute marijuanaby the United States District Courtfor the District of New Mexico. Hisconviction was upheld on August26, 1985, by the U.S. Court ofAppeals for the Tenth Circuit. Thecommittee accepted his surrenderof license on September 22, 1986.

DAVID S. HERDLINGERSurrender of License

David S. Herdlinger, of Spring­dale, voluntarily surrendered hislicense to the Committee due toviolation of Rule 8.4 concerningmisconduct. Herdlinger pleadedguilty in August to a charge of mailfraud after admitting to a three­year scheme in which he, asSpringdale city attorney, solicitedan estimated $10,000 in bribes fromDWI defendants in SpringdaleMunicipal Court. Herdlinger was14/Arkansas Lawyernanuary 1987

sentenced to three years in prison.The committee accepted hissurrender of license on Septem­ber 22, 1986.

JOHN MATTHEWSSurrender of License

John Matthews, of Little Rock,voluntarily surrendered hislicense to the Committee due toviolation of Rules 1.1, 1.2, 1.4, 1.5,1. 15 and 8.4 of the Model Rules ofProfessional Conduct concerningcompetence, scope of representa­tion. communication. fees, safe­keeping of property and miscon­duct. Matthews surrendered hislicense rather than contest severalallegations that he didn't properlycomplete work he was engaged toperform. One allegation was thathe received nearly $100,000 inchecks for distribution to creditorsin the Fagan Co. bankruptcy, butthat he exchanged the checks forcashier's checks and cashed them.The committee accepted hissurrender of license on Septem­ber 22, 1986.

JOSEPH BUFFALOLetter of Reprimand

Joseph Buffalo, of Little Rock,was issued a letter of reprimand inOctober for violation of Rules 1.1,1.3, 1.4 and 8.4 of the Model Rulesof Professional Conduct concern­ing competence, diligence, feesand misconduct. Buffalo had beenhired to represent two clients in afederal lawsuit but did not keepthem advised of the status of theircase. The clients learned from anarticle in a statewide newspaperthat the lawsuit was dismissedand alleged that without theirknowledge Buffalo failed torespond to court-ordered inter­rogatories. Buffalo assessed costs,fees and sanctions for failing tocomply with court orders onthe clients.

JEPTHA EVANSLetter of Reprimand

Jeptha Evans, of Booneville, wasissued a letter of reprimand in Sep­tember for violations of Rule 1.8 ofthe Model Rules of ProfessionalConduct concerning conflict ofinterest. Evans lent $6,000 to a cli­ent while handling the client'slawsuit over a traffic accident.

EUGENE FITZHUGHLetter of Reprimand

Eugene Fitzhugh, of Little Rock.was issued a letter of reprimand inOctober for violation of Rules 1.4and 8.4 of the Model Rules of Pro­fessional Conduct concerningcommunication and misconduct.Fitzhugh told a client his lawsuithad been filed. The clien t laterlearned from the court clerk thatthe lawsuit had not been filedand wrote Fitzhugh asking for hiscase files. The client received noresponse.

CHARLES HONEYLetter of Reprimand

Charles Honey, of Prescott, wasissued a letter of reprimand inSeptember for violation of Rules3.3 and 8.4 of the Model Rules ofProfessional Conduct concerningcandor toward the tribunal andmisconduct. Judge Robert Fussell.U.S. bankrupcy judge for the East­ern and Western Districts ofArkansas, alleged that inrepresenting debtors in a bank­ruptcy, Honey had received legalfees and costs that were notauthorized by the court. JudgeFussell said Honey had maderepeated misrepresentations tothe court when asked aboutthe fees.

BRIAN MUELLERLetter of Reprimand

Brian Mueller, of Booneville,was issued a letter of reprimand inSeptember for violation of Rule 8.4of the Model Rules of Professional

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Conduct concerning misconduct.Ronald Naramore, a Hot Springsattorney, had obtained ajudgmentagainst Mueller's client. In theprocess of executing on some prop­erty belonging to the client. Muel­ler told Naramore that he'd filed abankruptcy petition on the client'sbehalf. Naramore stopped the exe­cution and later learned that bank­ruptcy had not been filed.

WILLIAM A, MURPHYLetter of Reprimand

William A. Murphy, of Sheridan,was issued a letter of reprimand inOctober for violation of Rules 1.4and 8.4 of the Model Rules of Pro­fessional Conduct concerningcommunication and misconduct.Murphy borrowed $1000 from theestate of his clients' parents. Whenconfronted about repayment.Murphy told the clients that heconsidered the loan to be a legalfee. The clients maintained that hehad not done any legal work forthem or the estate.

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MICHAEL SALAMOLetter of Reprimand

Michael Salamo, of Fayetteville,was issued a letter of reprimand inOctober due to a Per Curiam Orderon January 29, 1986, by the Ar­kansas Supreme Court. The Courtstated in the order that a brief wasoriginally due to be filed on behalfof Salamo's client on July 13, 1985.At Salamo's request, the Court ex­tended the time for filing toOctober 10, 1985. The SupremeCourt clerk was advised bySalamo on October 25, 1985, thatthe brief had been completed andwould be immediately filed. TheCourt had not received the brief bythe date of the order. D

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lo.:"Nobody can fill his role on the Court. I have the highest respect for his integrity. He makes every decision with

complete intellectual honesty," says Justice Robert Dudley.

I~

GEORGE ROSE SMITHKnowledgeable, emphatic, to the point and

somewhat intimidating

By Robert L. Brown

Earty last October whenthe weather was un­seasonably warm, JudgeGeorge Rose Smith led avisitor down a winding

concrete walkway to an iron spiralstaircase in the woods behind hishouse at No, 2 Cantrell Road inLillIe Rock. Acorns rolled andcracked beneath their feet,making negotiation on both thewalkway and staircase somewhathazardous. The two men ascendedthe staircase as Judge Smith ex­plained that he had acquired thestructure from the state where ithad served for years as theprimary access to the upper stacksof the old Supreme Court Library inthe State Capitol. "They weregoing to throw it away," the judgeobserved incredulously.

At the top of the staircase was awood platform with railings andseating and a light, all of whichthe judge had built. "[ use thissometimes to read briefs," he saidin his taciturn manner. He addedthat the elevated perch was quietand cool. It was also isolated andelevated - almost like a pulpit.Asked about animal life in hiswoods like possum, raccoon andfox, he admitted to having possumand raccoon in abundance, but notfox. "We haven't seen fox inawhile. They like to live nearwater, you know."

The reply was pure George RoseSmith - knowledgeable, em­phatic, to the point and somewhatintimidating. His certainty con­vinces you that he has studied thesubject and knows more about thewildlife habitat of fox than you.

And he probably does.On January 1. 1987, Judge Smith

will retire from the ArkansasSupreme Court after 38 years ofcontinuous service. His term hasbeen the longest of any judge inthe history of the Court. In 1949when he first assumed his seat,volume 214 of the ArkansasReports was published. We arenow in volume 290. That meansSmith has participated in morethan a quarter of the opinions

written during the SupremeCourt's ISO-year history. None ofthe other judges who serve on theCourt today had graduated fromlaw school when Smith won hisfirst election.

The legacy of this man cannot bemeasured in mere numbers. how­ever. It is not an overstatement, forexample, to say Smith has beenthe architect, chief implementorand overseer of the system bywhich the Supreme Court assigns

January 1987/Arkansas Lawyerll7

"T he years have pol­ished and enhancedthe gift of scholarshiphe had the day he ar­rived. No one haspulled us out of thebriar patch more thanGeorge Rose Smith."

Justice Steele Hays

and decides its cases. His influ­ence in that regard reachesbeyond the state. He is recognizednationally as an authority on theappellate decision process andhas written law review articles onthe subject and lectured for yearsat the American Academy ofJudicial Education in Boulder,Colorado.

When describing the SupremeCourt's system and Smith's influ­ence, Court Clerk Dona Williamssays: "All that's him." But it is thejudge's role as a problem solverthat has been equally important toWilliams. "He has a tremendousmechanical mind," she goes on."He can see a problem and work ona solution and then come up with,as far as I can tell, the best solutionand the simplest way." Williamscould be referencing the variouschecks Smith has put into place toassure punctual, clear and concisejudicial opinions. Or she could bealluding to the judge's zeal in tack­ling even the smallest problem.On one occasion he personallydrilled holes in the judicial con­ference table under each judge'splace to hold their pens andpencils.IS/Arkansas Lawyer/January 1987

But the mark George Rose Smithleaves on the Court this Januarywill be more intangible and ofgreater significance than the me­chanics of an appellate system, asimportant as that is. For whenJudge Smith's name is mentioned,invariably it is associated with hisdevotion to the dignity and integ­rity of the Supreme Court as an in­stitution and to its traditions. Hiscolleague, Judge Darrell Hickman,says Smith has led in promotingthe image of a Supreme Court thatis above reproach. Good friendand former Pulaski County Chan­cery Judge Bruce Bullion puts itthis way: "George Rose Smith ishighly moral and ethical in everyinch of his body and his faithful­ness and loyalty to the office heholds are total." Smith's exampleruns in other areas too. For yearshe has been regarded by his peersas the hardest worker on the Court.He writes more opinions (staUsti·cian that he is, at the end of eachyear he compiles information onthe number of opinions each judgehas written and the average pagelength of each judge's opinions),and is credited with studying allcases before the Court with the

same intensity whether they areassigned to him or not. The helpand incentive he has given to theother judges on their cases hasbeen immeasurable. "We rely onhim," says Judge Steele Hays. "It'skind of scary thinking of him notbeing here."

Though he has clearly evolvedas a legend in Arkansas' legal andjudicial circles, his early profes­sionallife did not presage a careerof appellate significance. JudgeSmith was born in Little Rock in1911 and was one of five children.His father was Hay Watson Smithfrom North Carolina, a stern, intel­lectual and sometimes contro­versial minister (he was oncecharged with heresy for support­ing Darwinism) at Second Presby­terian Church. His mother wasJessie Rose Smith, the daughter ofU. M. Rose, who was a legend inArkansas in his own right andamong other things founded theRose Law Firm. From the begin­ning. two career choices wereopen to him. His father and grand­father were clergymen and theSmith family boasted educators aswell. His uncle, Henry LouisSmith, served as president at both

- ------------------------------,

Davidson College and Washing­ton & Lee University. The Rosefamily on the other hand hadspawned a number of attorneys.Smith's penchant almost from thebeginning was toward problemsolving and a discipline that sug­gested the law.

His boyhood included ahome at Fourth andGaines Streets in down­town Little Rock and aworld of ice wagons,

carnivals. street cars andsummers at Mt. Nebo in YellCounty, His Little Rock educationbegan at Peabody GrammarSchool and ended at Little RockHigh School, where he graduatedfirst in his class. From there heattended college and one year oflaw school at Washington & LeeUniversity which he found to be"very formal" and snobbish. Hetransferred to Fayetteville whichwas more to his liking and finishedlaw school at the University of Ar­kansas in 1933 as the honor gradu­ate. He had clerked at the RoseLaw Firm for two summers duringlaw school and joined the firm asan associate upon graduation

where he would remain off and onfor 15 years.

At that time his uncle, George B,Rose, was the senior partner of thefirm, Smith gravitated toward anappellate practice and legal re­search. "I never really enjoyed try­ing lawsuits," he says today, "Itmade me nervous. I never got akick out of it." Nonetheless, hesoon became one of the bestresearchers at the firm, findingcases no one else could find. Hewas "highly efficient," accordingto those who worked with him, andquickly became "absolutely indis­pensable" to the partners in thefirm. During this period he taughtconstitutional law and conflicts atthe night law school. In 1938 hemarried Peg Newton of Little Rockand a daughter, Laurie Hemp­stead, was born to the couple someyears later. World War II inter­rupted a rather comfortable lifeand he served for three and one­half years as second lieutenantand major in the Army fightinghard, as he puts it, in Georgia andFlorida.

Alter the war he returned to theRose Firm and set about writing alaw review article which. un-

beknownst to him, would deter­mine his destiny. The article, en­titled "The Current Opinions of theSupreme Court of Arkansas - AStudy in Craftsmanship, "\ waslittle more than a discussion of sixstandards of judicial writing es­poused by John H. Wigmore in histreatise on evidence. But it alsotook the Supreme Court membersto task for their lapses in legal re­search and opinion wri ting andwas "a big hit with lawyers," hesays. That article more than any­thing else made his name recog­nizable among members of the barthroughout the state and whenSupreme Court Judge Edgar L.McHaney died in 1948 two ofSmith's close friends, Frank

Editor's Note:

Robert L. Brown is a member ofthe law firm of Robert L. Brown,P.A. He is a former administra­tive assistant to Congressman JimGuy Tucker, former legislativeassistant to Senator Dale Bumpersand former legal aide to Bumperswhen he was governor. Brown is aformer deputy prosecuting attor­ney in the 6th Judicial District.

Ianuary 1987/Arkansas Lawyerll9

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Tributes FromThe CourtAnd Clerk

"He is always trying to searchout what's right, just and fairunder the law regardless of theparties involved or the nature ofthe litigation. He admits whensomething is not within his graspand likes to hear other people'sopinions."

"He has a conception of politicalpower and where it should rest.He never loses sight of the fact thatthe law needs consistency andsense. He is not afraid to changethe law when it's wrong."

"He has been a tremendousasset to the Court. His knowledgeis useful to the other members. Hewill be greatly missed leaving arelatively young and inexperi·enced crew here."

"His assets are his thorough­ness, knowledge. curiosity, crea­tive spirit and dedication to getto the bottom of things. We lovethe guy because he saves us fromourselves. We will continue inhis image."

"He is one of the most sensiblepeople I've ever known. There issuch a thing as knowledge frombook learning. Then there is wis·dom and horse sense. Judge Smithhas all three. 1don't know anyoneI respect more."

Almost from the beginning hebegan his crusade to reform thedecision system. When he first as­sumed his seat, each judge wouldread his opinions out loud at con­ference with the other judges hear­ing and reacting to those opinionsfor the first time, Smith began thepractice of distributing copies ofhis opinions to his colleagues priorto conference, By the end of hisfirst year, the other members of theCourt, without saying a wordabout it, were following suit.

his soon led to Smith'sfamous editorial practiceof circling his colleagues'misspelled words andpointing out their gram­

matical errors. Not surprisingly,this did not sit well with somejudges like former journalist andChief Justice Griffin Smith.Others, however, welcomed hiscorrections and the practice stillcontinues. (The story even goesthat Smith on occasion would notprovide this service to judgeswith whom he felt no affinity likelim Johnson.)

Other reforms followed. Heworked to perfect the SupremeCourt Rules which were amendedin 1954. Of particular note is the re­duction in time for oral argumentwhich has been shortened fromone hour to 30 minutes and now to20 minutes per side. Long consid­ered an opponent of oral argu­ments, Smith now says with atwinkle in his eye that he reallydoes not mind them. In the nextbreath he suggests that they areoften a waste of time and some­times young attorneys requestthem purely for the experience.

Over the years, Smith has writ­ten several law review articles buttwo are of particular note and havebecome required reading for ap­pellate judges in every state. Thefirst is "A Primer of Opinion Writ­ing, For Four New Judges,'" whereSmith discusses the influences onhis own opinion writing andpasses a few pearls of experienceon to his newly elected peers, Hisinfluences are all there, includingKarl N, Llewellyn, Cardozo, JudgeFrank Smith of the ArkansasSupreme Court, Webster's New In­ternational Dictionary (the 2ndedition, not the 3rd) and the Uni­form System of Citations.

Newell and Baucum Fulkerson,implored him to stand for election.Smith now says: "The many peoplewho urged me to run amountedto two,"

Whatever the case, he ranagainst Arthur Adams, a Jones­boro attorney who was secretary ofthe Democratic Central Commit­tee, andJ. Fred Jones of Mt.lda andLittle Rock. Running on the sloganof "Ask Your Lawyer," he bought aChevrolet and with his wife, Peg("the real politician in the family").visited every county in the state.

It was a time of tent rallies, piesuppers and door prizes. At hisfirst political rally in Pine Bluff, thejudge forgot to take off his Panamahat when he approached themicrophone to make his speech. Avoice bellowed from the crowd:"Take your hat off." A shy man, thejudge made it through the speechand maintains that he subse­quently evolved into an accom­plished public speaker.

But Smith says he never likedcampaigning. "There are thingsI'd rather be doing," he addstersely. And you believe him.Fortunately for him he only had torun twice in his career. The secondtime was in 1962 against a formi­dable opponent, former State At­torney General Tom Gentry. Gen­try waged a hard-hitting cam­paign and at one point was aheadof Smith in the polls. Smith wenton the attack and ran newspaperads accusing Gentry of being con­trolled by organized labor. For aman who eschewed politics assomewhat distasteful. Smithproved sufficiently adept. For asecond time the lawyers aroundthe state were an invaluableasset. Judge Edwin Dunaway (whoserved with Smith on the Court for14 months in 1949 and 1950) says in1962 Smith ran the largest endorse­ment ad by lawyers ever. He wonconvincingly and never wassaddled with political opposi­tion again.

Not surprisingly, after thatSmith became an outspoken sup­porter of the Missouri plan for theselection of appellate judges.

Since he had been an accom­plished researcher and brief writerwith a distinct literary style duringhis days in law practice, Smithhad little difficulty adjusting towork on the Supreme Court in 1949,

January 1987/Arkansas Lawyer/21

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Of even more significance. na­tionally at least, has been "TheAppellate Decisional Confer­ence. "3 [n preparation for this arti­cle, Smith polled the appellatecourts of the 50 states on theirprocedures for the judicial confer­ence and assignment of cases. [ndoing so, he held Arkansas'methods up for comparison andfound that the system he had insti­tuted compared very favorably in­deed. Smith's system stresses ex­pedition and weekly assignmentswith each judge having primaryresponsibility for one case. A criti­cism of the system has been its po­tential for single judge opinions.Smith's rebuttal to such a charge iseasy to anticipate. 11 the judges dotheir work and read all the casesincluding their own, the dangeris prevented.

Judge Smith's celebrated re­serve has been the subject of muchcomment and a few satirical jabsover the years. Close friends admitSmith often does not participateaggressively in conversation andis not the most exuberant ofpeople. Having said that, theystaunchly maintain he has an ex­cellent sense of humor, which iswry and borders on the ridiculous.A case in point was the judge's an­nual hike with a group of friendsfrom Mt. Nebo to Spring Mountainfor the purpose of placing onesequentially lettered beer can on aIwo by four board. After theplacement, the board was hiddenand marked by an aluminummarker which could be seen fromMt. Nebobut which was almost im­possible to find on SpringMountain. Smith was the creator,organizer and leader of the trekand always took his Webster's un­abridged dictionary to Mt. Nebo(but not on the hike) to resolve dis­putes. Over 26 years Smith and histeam of Nebo people completedthe alphabet and the fey ritual hasnow been discontinued.

There is also the judge's tamingof raccoons in the woods behindhis house lured to submission byColonial Bakery thrift sbop bread.Photographs of these raccoonsadorn his Christmas cards whichare eagerly awaited each year.They can be seen performing avariety of tasks like trimming theChristmas tree or tying Christmaspresents or posing in the middle of

PS , ..... 3526. Jul~ 198<1 ISu IIIII",C"II)II un '~rJr)

221Arkansas Lawyer/January 1987

a Christmas wreath. And there arehis crossword puzzles which hehas published in the New YorkTimes and his riddles, influencedno doubt by his love for LewisCarroll. His golf ball collection,which he gathered in the dayswhen he jogged numbers well over300, rests in racks which he madeand which hang on his living roomwall, He has other collections, likethe license plates for his 1948Chevrolet dubbed "Old 97" whichhe drove for 2S years,

An insatiable curiosity has ledhim into other interests, likeastronomy, In the '70's he was oneof the few people in the area whoknew how to set a sundial and wascalled upon to do it for the Arkan­sas School for the Blind. He isequally proficient with his hands.An accomplished brick mason,carpenter and electrician, he hasbuilt parts of his own home, in­cluding a brick wall and walkway,and has built rooms for friends likeJudge Bullion. Other hobbies in­clude baking bread, spin fishingand raising tomatoes. His home in­cludes a well supplied basementworkshop, a rain gauge apparatusfrom his roof to his bathroom andan old locomotive bell in thewoods which can be activatedelectrically from inside the home.While not yet compared to daVinci, he has often been describedas a Renaissance man.

There is a boyish aspect to all ofthis that is well nigh irresistibleand certainly is at odds with anysuggestion of a dreary personality.

To be sure, the judge can be in­tolerant of people who have lessmental acumen. And he has a tem­per. On one occasion he is said tohave finished an argument withJudge Hickman in conference bytaking a case the judge had citedand stating: "Here's what I think ofyour case," as he simultaneouslydeposited it in a wastepaperbasket. Undoubtedly, his tersecomment: "That's just commonsense," has brought many argu­ments to a conclusion. But by andlarge his colleagues give him highmarks for open-mindedness andfor his ability to admit when heis wrong.

There is also the celebrated inci­dent when he sued a woman for $4because she had run out of gas andused his gasoline can but had not

returned it. He settled the case outof court for the $4 plus costs andsaid at the time: "I just got mad ather and sued her and that's allthere is to it."

The most emotional case thatJudge Smith has encountered dur­ing his tenure is State v. Epperson'which called into questionArkansas' anti·evolution statute.The Court in a per curiam decisionsustained the statute and held itconstitutional. Ultimately. theUnited States Supreme Courtreversed the Court and struckdown the statute as violative of theFirst Amendment. The two sen­tence per curiam opinion clearlyevades the constitutional issue.but Smith defends the opinion,which he joined in, and says theCourt was bitterly divided over theissue and the compromise effort"saved the Court as an institu­tion." For Smith survival andintegrity of the institution havealways been the paramountconsideration.

eated across from thejudge at the chess tablewhere he writes hisopinions on Mondayafternoons and nights,

the question was asked what heconsidered to be his majoropinions over the years. He beginshis answer in the slow punctuatedvoice which is his trademark andwhich at times trails into a whine.He describes how in the past yearhe has reviewed about 2,000opinions he has written in his 38years of service and isolated 40 as"more or less outstanding. It worksout to about one a year," he adds.Of those 40 he has whittled the listdown to six which fall more appro­priately in the landmark category.Surprisingly, a usury decision isnot among them.

Leaning on the table and slump­ing his shoulders, the judgebegins his description of thosecases while his pale blue eyesstare steadily at the visitor. Fromtime to time he pats the table withthe flat of his hand for emphasis.At other times he rests his handson the table as he talks. Thefingers are tapered and almostmanicured, belying the manuallabor of the years. At the end helooks out the picture windowwhere the cardinals are feeding at

The Wit and WisdomOf George Rose Smith

'On helping Chief Justice WebbHubbell don his robe at hisswearing in:

"The robe may not he a good lit be·cause Little Rock Tent and Awningwas not able to make a lObe in such ashort time."

'To a verbose Judge DarrellHickman:

"You have a right to remain silent,"

·When an opinion was submittedlate by a colleague on the Court:

"Better never than late."

'To Justice John Purtle:"Are you going to commit another

dissent?"

*In answer to a clerk who began ajoke with the question: "Do youknow the difference between awoman lawyer and a watercloset?"

"Why, yes. Don't you?"

·Upon reading an advertisementfor cordless screwdrivers:

"All of my screwdrivers arecordless. "

'On how he amassed his golf ballcollection:

"When they slop rolling, I Iigurethey're lost."

'To a photographer about to takehis photograph:

"You going to toke the back 01 myhead? That's my best view."

'On a newly published treatiseabout the Civil War:

"It's an unbiased history of theCivil War from the southern pointof view."

'On his Rose heritage:"No one knows with certainty why

Little Rock was named the Cityof Roses."

'To a newly elected Judge on theCourt:

"New judges dissent."

'Proposed methods of settling ju­dicial disputes at conference inascending order of desirability:

"(a) dueling, (b) listiculls, (c)flouncing from the room, (d) pro­fanity, (e) standing oration (shoutingoptional). (I) calm and detachedreasoning."

January 1987/Arkansas Lawyer/23

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his amply supplied bird feeder.Wags in the legal profession

might consider adding two moredecisions to the judge's list. Bothare April Fool jokes. Poisson v.d'Avril' gives full force and effectto an Omnibus Repealer of the Ar­kansas General Assembly whichpurported to repeal "all laws andparts of laws." The decision heldthough that the repealer only ap­plied to statutory law and not tocommon law which was left"unmonkeyed with." A more recentbit of whimsey is Catt v. State'which upholds inconsistent juryverdicts for the conviction of twinbrothers for fraud and cocaine.The opinion winds through a fac­tual maze and is replete withreferences to literature andchildren's stories. (West Publish­ing Co. did not get the joke andpublished the decision as valid.)Both decisions attest to a well­honed, sophisticated sense ofhumor more identified with priorcenturies perhaps than withour own.

So what is left to say? GeorgeRose Smith has given tirelesslyand selflessly of himself for 38

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FOOTNOTES

Six LandmarkDecisions

Reasor-Hill Corp. v. Harrison.' Decided before the enact­ment of Arkansas' Long-Arm Act. a Missouri landowner was al­lowed to file an action in Arkansas for damage to his landcaused by an Arkansas manufacturer. "If Barton (thelandowner) has been wronged he should have a remedy; to de­ny it is to encourage skepticism as to the ability of the courts todo their duty."

Alford v. State.' Testimony of a previous attempted rape bythe defendant against the victim was excluded as prejudicialand the case was remanded for a new trial. "Thus our casesvery plainly support the common sense conclusion that proof ofother offenses is competent when it actually sheds light on thedefendant's intent; otherwise it must be excluded ... The issuegoes to the very heart of fairness and justice in criminal trials;we cannot conscientiously sustain a verdict that may havebeen influenced by such prejudicial testimony."

Moose v. Gregory.' Supreme Court Rule 29 does not pro­vide an automatic basis for Supreme Court review of decisionsrendered by the Court of Appeals. "Finally, we should state. asclearly and as unmistakably as we can. that the mere possibil­ity that the Court of Appeals may have been wrong in a givencase is not a basis for review by this Court."

Rector v. Slale.' Death-qualification of the jury in capitalcases is a constitutional procedure. "Human nature is not un­constitutional. From the earliest days of the common law,which ultimately created the jury system now embedded in ourconstitutions, the human urge to redress manifest wrongsplayed its part in the development of the criminal law.... Oursecond reason for disagreeement with the Grigsby conclusionis a practical one: a jury system that has served its purpose ad­mirably throughout the nation's history ought not to be twistedout of shape for the benefit of those persons least entitled tospecial favors."

Day v. Day.' Vested pensions and annuities are maritalproperty and subject to equal division upon divorce of the par­ties. "We now realize that we have inadvertently failed to rec­ognize the new concept of 'marital property.' created by Act 705of 1979. as amended. That statute defines marital property asall property acquired by either spouse subsequent to the mar­riage, with exceptions not important here."

Hal Springs v. Creviston. 6 Invalidated a bond issue sup­ported by the City of Hot Springs and secured by a pledge ofrevenues from a hotel and restaurant gross receipts tax for lackof an election. "We believe that the only proper and permanentcourse is for us simply to give effect to the plain language of theConstitution. It states that no city or county shall ever issue in­terest-bearing evidences of indebtedness without the consentof the electors. That mandate is binding."

• 280 Ark. 385. 659 S. W.2d 168119831, 281 Ark. 261. 663 S. W.2d 719(984)• 288 Ark. 286. __ S.W.2d __. (1986)

, 220 Ark. 521. 249 S.W.2d 994 119521, 223 Ark. 330. 266 S.W.2d 804 119541, 267 Ark. 86. 590 S. W.2d 662 (1979)

years. While not a judicial activist,he has worked diligently to pre­vent abuses of power. whetherpolitical or otherwise, where hesaw them and to protect the sanc­tity and consistency of the lawwhere possible. He has never beenone to take off on flights of fantasyand leave practicality behind.Rather. he has solved disputes in adispassionate, rational mannerusing God-given talents whichover the years have inspired moreand more respect.

In 171t. the English poet.Alexander Pope, asked the follow­ing questions in his "Essay onCriticism:"

"But where's the man, who counselcan bestow.

Still pleased to teach. and yet nolproud to know?

Unbiased. or by favour, or by spite;Not dully prepossessed. nor blindlyright;

Though learned, well-bred; andthough well-bred. sincere;

Modestly bold. and humanly severe:Who to a friend his faults can freelyshow,

And gladly praise the merit of a foe?Blest with a taste exact. yet un·confined;

A knowledge both of books andhuman kind;

Generous converse; a soul exemptfrom pride;

And love to praise. with reason onhis side?"'

For the Arkansas bar the answercould well be George Rose Smith. 0

FOOTNOTES, I Ark. L. Rev. 89 It947), 21 Ark. L. Rev. 197119671, 28 Ark. L. Rev. 425 119751• 242 Ark. 922, 416 S.W.2d 322 (1967)~ Re·printed in 22 Ark. L. Rev. 741 (1971)• 285 Ark. 334. 691 S. W.2d 120 (1985)

January 1987/Arkansas Lawyer/2S

IN MEMORIAM

Marvin 1. Kieffer

Marvin 1. Kieffer, aged 63, ofJonesboro, died Tuesday, October28, 1986.

Kieffer was elected on October 2,1986, as secretary-treasurer of theArkansas Institute for ContinuingLegal Education board of di­rectors. He had served as amember of the board since 1977.

He was a native of Weiner. agraduate of the University of Ar­kansas School of Law, Fayettevilleand a veteran of World War II. Kief­fer served as examining agent forthe fnternal Revenue Office fromthe time he was admitted to the Ar­kansas bar in 1951 until 1957, whenhe entered private practice.

Kieffer was a 35-year member ofthe Arkansas Bar Association, wasa member and past president ofthe Craighead County Bar Associ­ation and was a fellow in the Ar­kansas Bar Foundation. He served11 years on the Arkansas BarAssociation's Auditing Committeeand served on its Agricultural Lawand fnterest on Lawyers' Trust Ac­counts Committees and the Execu­tive Council. He was a formerchair of the Foundation.

Kieffer was a member and past26/Arkansas Lawyer/January 1987

president of the Jonesboro KiwanisClub and had served as lieutenantgovernor of the Mo-Ark KiwanisDistrict. He was a member ofJonesboro Elks Lodge No. 498, Car­dinal Masonic Lodge No. 677 atWeiner and the Jonesboro YMCA.He was a former member of theYMCA board of directors.

He was a member of the WalnutStreet Baptist Church.

Survivors are his wife, Julia Kief­fer, of Jonesboro; his mother, Ma­tilda Kieffer, of Weiner; and twobrothers, Seth Kieffer, of Weiner,and Melvin Kieffer, of Waldenburg.

William M, Clark

William M. Clark, aged 56, ofConway, died Wednesday, Oc­tober 1, 1986.

A Conway native, Clark wasborn November 15, 1929, a SOnof the late Mr. and Mrs. WilliamJ. Clark.

Clark received a bachelor of sci­ence degree in business in 1950from the University of Central Ar­kansas and graduated in 1958 fromTulane University law school.

Clark returned to Conway afterreceiving his law degree andjoined his father and uncle in thelaw firm of Clark. Clark and Clark.The firm was founded by hisgrandfather, J. C. Clark. He mostrecently practiced with the Clarkand Adkisson law firm.

In 1983, Clark was appointed byGovernor Bill Clinton as one ofseven special judges to preside inan Arkansas Supreme Court casewhich the state's seven SupremeCourt justices had disqualifiedthemselves from hearing. Thecase concerned state income taxexemptions on public retirementbenefits.

He was a 28-year member of theArkansas Bar Association, amember of the Faulkner CountyBar Association and Conway De­velopment Corporation and a pastpresident of the Conway Kiwanis

Club. He was elected in 1982 to theFirst State Bank and Trust board of

directors.Clark was an avid supporter of

athletic programs at the Universityof Arkansas, Fayetteville and theUniversity of Central Arkansas. Hewas a member of the UCA PurpleCircle.

Survivors are his wife. MarisaClark, of Conway; three sons,John J. Clark, James Clark andDavid Clark, all of Conway; anda daughter, Carmen Clark, ofFayetteville.

Ruby E. Hurley

Ruby E. Hurley, aged 53, of NorthLittle Rock, died Friday, Septem­ber 26, 1986.

Hurley had been active in Demo­cratic Party activities and twiceran unsuccessfully for a chancerycourt judgeship.

In 1966, she was a candidate forthe then-new Third Division Chan­cery Court judgeship in the FirstChancery District and narrowlylost the race. In 1978, she ran forthe Third Division chancellor's po­sition as the front-runner, but lostin the runoff.

Hurley served as special chan­cellor in the Sixth Circuit in the ab­sence of Pulaski County JudgeJudith Rogers and, in the early1960's, as temporary master-in­chancery, trying uncontesteddivorce cases.

Although she primarily handleddomestic litigation, SherwoodMunicipal Judge Milas Hale ap­pointed her in 1979 as Sherwood'sfirst public defender, a part-timeposition she held for four years.

Hurley was active in the YoungDemocrats of Arkansas in the1960's. She was the YoungDemocrats' national committee­person for eight years and in the1970's became a member of thePulaski County Democratic Com­mittee. She also had served as sec­retary to the Arkansas DemocraticConvention.

For a number of years, Hurleywas a law partner of the late

Tommy Russell, a former aide toGovernor Orval E. Faubus in the1950's. After that she became apartner of Jack Files and GaryEubanks and recently was the se­nior partner in the Hurley andWhitwell law firm.

The daughter of John E. andRuby Siegler Hurley of Little Rock,Hurley was a graduate of MountSt. Mary Academy and attendedLittle Rock Junior College, now theUniversity of Arkansas at LittleRock. She received her law degreefrom the University of Arkansas,Fayetteville.

Hurley was a 34-year member ofthe Arkansas Bar Association andwas a member of the PulaskiCounty Bar Association and theWoman's City Club.

She was a member of the Immac­ulate Conception CatholicChurch.

Survivors are her mother, RubySiegler Hurley, of North LittleRock; a brother, James E. Hurley, ofOklahoma City, Okla.; and twosisters, Patricia H. James, of May­flower, and Mrs. John Ripley, ofPhiladelphia, Pa.

Joseph C. Kemp

Joseph C. Kemp, aged 66, of Lit­tle Rock, died Thursday, October23, 1986, on his 66th birthday.

Kemp was Little Rock city attor­ney for 21 years, beginning in 1957,shortly after the city manager formof government was installed at Lit­tle Rock to replace the mayor­council form. He held the city attor­ney position and maintained a pri­vate law practice until 1978, whenthe city Board of Directors decidedit wanted a full-time city attorneywithout an outside practice.

He continued his work in localgovernment by serving, until re­cently, as attorney for the LittleRock Advertising and PromotionCommission and the MetroplanTransi t Policy Board.

"He was widely known for hisshock of white hair, which hadgrayed during his high schooldays at Dierks, where he was bornin 1920, a son of Fraudie Joe andLeila Rose Howard Kemp," the Ar-

kansas Gazette reported. Kempmoved with his family to LittleRock in the late 1930's and wen t towork for Arkansas Power and LightCompany.

In 1941, he was drafted into theAir Force and spent most of his mil­itary career at Atlanta as an air­craft dispatcher.

Kemp attended Little Rock JuniorCollege, which became the Uni­versity of Arkansas at Little Rock,and received a law degree in 1951from the University of Arkansas,Fayetteville. Before becoming cityattorney, he was a law clerk for Ar­kansas Supreme Court AssociateJustice George Rose Smith, wasdeputy city attorney for Little Rockand was attorney for the state La­bor Department. He began hisprivate law practice in 1953.

Kemp's position as city attorneykept him in the center of the dis­cussion of most major issues fac­ing the city. He argued a civilrights case brought against thecity before the United StatesSupreme Court, with ThurgoodMarshall, now on the Court, as theopposing attorney; he gave adviceto the Civil Service Commissionwhen questions arose about howto hire a police chief; he repre­sented the Airport Commission fora time and worked on develop­ment of the airport terminal build­ing; and he directed negotiationsfora bank loan that Central Arkan­sas Transit needed to continue op­erations.

Kemp served as acting city man­ager in 1968 and 1973.

He was a 35-year member of theArkansas Bar Association, amember of the Pulaski County andAmerican Bar Associations, a 32d­degree Mason and a member of theLittle Rock Consistory and theShriners.

He was a member of St. JamesUnited Methodist Church.

Survivors are his wife, JewellKnuckles (Judy) Kemp, of LittleRock; a son, Hal Joseph Kemp, ofLittle Rock; two daughters, JananE. Kemp and Kristin Beth Hurst.both of Little Rock; a sister, JanelleWills, of Little Rock; a brother,Russell Kemp, of Memphis; andthree grandchildren.

John Mann

John Mann, aged 65, of ForrestCity, died Wednesday, October15, 1986.

Mann was instrumental in es­tablishing the Eastern ArkansasCommunity College at ForrestCity and was a World War II Navyveteran and real estate developer.

He was a graduate of HendrixCollege at Conway and the Uni­versity of Arkansas School of Law,Fayetteville.

A nalive of Marianna, Mannmoved to Forrest City in 1947. Hewas a past president of the St,Francis County Bar Association,the Forrest City Rotary Club andthe Forrest City Chamber ofCommerce.

He was a 38-year member of theArkansas Bar Association and amember of the Forrest City FirstUnited Methodist Church.

Survivors are his wife, MarthaJane McCollum Mann, of ForrestCity; two daughters, Cile Brooks,of Memphis, Tenn., and Jane Mannof New York City; his mother,Louise Mann. of Marianna; abrother, Lon Mann, of Marianna;and two grandchildren.

Frank O. Sloan

Frank O. Sloan, aged 71, ofJonesboro, died Tuesday, October14, 1986.

Sloan was a World War II Navyveteran, a past member of theJonesboro School Board, past pres­ident of the Jonesboro Rotary Cluband a member of the First Presby­terian Church.

A native of Jonesboro, he wasthe son of the late Mr. and Mrs.Horace Sloan.

Sloan was a 46-year member ofthe Arkansas Bar Association anda member of the Craighead Coun­ty and American Bar Associations.

Survivors are his wife, VertisSloan, of Jonesboro; a daughter,Margaret Ann Morgan, of El Dora­do; a sister, Geraldine Miller ofYonkers, N.Y.; and three grand­children.

January 1987/Arkansas Lawyer/27

28/Arkansas Lawyernanuary 1987

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Whitlock was municipal judgeat Prairie Grove and Lincoln .

He was born August II. 1946,near Tuckerman, the son of Jackand Mildred Vaughn Whitlock.

Whitlock was a graduate of theUniversity of Arkansas Schoolof Law. Fayetteville and a part­ner in the law firm of Everett andWhitlock.

He was a 14-year member of theArkansas Bar Association, a 32ddegree Mason, a member of theOccidental Lodge 436, a Shrinerand a member of the Prairie GroveLions Club.

Whitlock was a Methodist.Survivors are his wife, Karol

Baggett Whitlock. of Prairie Grove;two sons, Robert Perrington Whit­lock and Jeff Baggett Whitlock. ofPrairie Grove; his mother, MildredVaughn Whitlock. of Tuckerman;his falher, Jack Whitlock, of Flori­da; and a sister. Janie Ellison, ofMemphis, Tenn. 0

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JUDICIAL DEPARTMENTREPORT

ComputersAnd the Courts

fact, at this time, well over one­hall of the circuit judges andchancellors in the state haveaccess to a computer system forthis purpose. In some instances,the court utilizes a system which iscentrally located in the county ordistrict. However. in most cases,the judge. or his case coordina­tor. has available a personal com­puter located in his or her ollice.Generally. the software which isbeing utilized is provided by ourdepartment.

The goal of this program is tomake available appropriate in­formation whereby a judge canmost ellectively control his docket.Among other things, the systemwill enable a judge to obtain acomplete printout of all activecases in his jurisdiction; to sched­ule cases for trial or hearing; toautomatically print notices tocounsel of hearings; to ascertainthe age of all active cases; and toautomatically schedule for dis­missal inactive cases pursuant toRule 10.

Also, the program allows for theentry of the name and address ofcounsel for each case. In thisfashion, it is hoped that attorneyscan quickly ascertain the status ofall their pending cases in a givendistrict.

There remains. however, thecontinuing question of the extentto which judge-control of docketsshould be exercised. It is im­portant to emphasize that this pro­gram does not presume to suggestthe degree of judicial interventionin case management which is ap­propriate. Rather, for those circuitjudges and chancellors whochoose to immerse themselves inthis task. this computer systemmerely provides a tool to assist.D

January 1987/Arkansas Lawyer/29

our department was fortunate toreceive a grant from the NationalInstitute of justice in the approxi­mate amount of $30,000. Withthese funds, we will acquire 13personal computers with letter­quality printers. These computers,along with the software which weare developing. will be utilized invarious circuit courts throughoutthe state, again at no cost to thejudge or county. The focus of thisparticular grant will be on de­velopment of a criminal court casemanagement system. However.the circuit judge who also handlescivil cases will benefit fromthe program.

When the program was an­nounced in late 1985, I was lessthan certain of what the responseof our judges might be. As it hasdeveloped. many of the circuitjudges and chancellors in Arkan­sas are qui Ie anxious to incorpo­rate the use of computers in theprocess of docket management. In

We have all experienced thebenefits, and the frustrations. ofthe computer age. Although the"encroachment" of computers inthe judicial process has laggedbehind other sectors. I suspectsome of these benefits, and frus­trations. will become increasinglyevident in your judicial system.

During the past year, the judi­cial Department has initiated anellort to encourage the use of com­puters in our circuit and chancerycourts. To that end, we are devel­oping software which will enablejudges to more ellectively monitorthe status of their dockets. OurSystems Branch stall has beenworking on the development ofthis software. john Stewart. chiefof our systems operation. alongwith jack Marks. systems analyst,and Pete Neathery, programmer,are writing the programs. Theyhave sought and received assist­ance from judges and clerks intheir ellort, As a result, the systembeing devised is closely attuned tothe needs of Arkansas courts.

Presently, the chancery courtprogram is in use in a number ofjurisdictions in the state. Initialresponses from those who areusing the system are favorable.We are close to completion of a cir­cuit court-criminal program,which will be followed by develop­ment of software for circuit court­civil and probate court. Signifi­cantly, our department is makingthese various programs availableto the respective courts at no cost.

A number of judges have per­suaded their local governments topurchase personal computers rely­ing, in part, on the availability ofour free software. Additionally.

By R. Christopher Thomas

EXECUTIVE DIRECTOR'S PAGE

The WarAgainst Defense Lawyers

"Fourteen percent had declined cer­tain criminal cases because of poten­tial federal harassment;

'Eighteen percent had receivedgrand jury subpoenas concerningtheir clients;

'Twenty-one percent had beenthreatened with fee forfeiture; and.

'Twenty-six percent had beensubjected to disqualificationattempts.

Closer to home, a respected, ef­fective defense lawyer told me heno longer takes drug cases be­cause of potential hassles.

Twenty-eight years of service inthe U.S. Air Force, with experienceas both a prosecutor and super­visor of prosecutors. leaves mewith a "law and order" mind setand, perhaps even more, a "dueprocess of law" mind set. Manydefendants deserve convictionand prison bu t they should befound guilty only if the govern­ment can prove its case. It's theduty of military defense counsel tomake the system work by provid­ing the best possible defenseconsistent with the facts. the lawand ethics.

To make our justice system workwe must permit. and, beyond that,encourage capable. independentdefense counsel to aggressivelyrepresent all persons accused ofcrimes, including the most con­temptible.

If our abhorrence of drug trafficand organized crime permits theprosecutor to decide whether thedefense lawyer gets paid andwhether the client can safely tellhis or her most terrible secrets,then the "disintegrating erosion ofparticular exceptions" threatensall our rights tomorrow. I can­not believe Congress intended thisresult. 0

sel of choice. The public defen.der sys­tem is adequate for those defendantswhose assets are tied up by forfeitureactions;

'Cash reporting requirements arenecessary to battle the undergroundeconomy;

'Sham payment of fees must not beallowed as a way of "laundering"money obtained through crime;

'Lawyers' offices must not be a safeplace for criminals to meet and con­spire; and..

. A few lawyers serve organizedcrime. induce a person to commitperjury and get involved in other ille­gal activity.

William J. Genego, professor oflaw at the University of SouthernCalifornia, surveyed 4,000 defenselawyers for their response toactions by the Justice Departmentin criminal and civil cases.Professor Genego found that of the1.648 responding:

'Thirty percent had changed theway they practice criminal law. in­cluding altering client interviewpractices;

By William A. Martin

"In all criminal prosecutions, theaccused shall enjoy the right to . ..have the assistance of counsel forhis defense."

Sixth Amendment.Bill of Rights,United States Constitution

"No person shall be . . ,deprived oflife, liberty or property, withoutdue process of law; , , ."

Fifth Amendment,Bill of Rights,United States Constitution

"A lawyer shall not reveal informa­tion relating to representation of aclient . .. "

Rule 1.6, Model Rules ofProfessional Conduct

At an American Bar Associa­tion program last summer, de­fense lawyers cited numerousexamples of government attackson lawyers in criminal and civilcases, including:

'Actions by the Justice Departmentto forfeit attorneys' fees paid withmoney garnered from criminal con­duct. particularly drug sales;

.Attorneys being subpoenaed to ap­pear before federal grand juries to pro­vide information. including fee infor­mation, about their representation ofcertain clients;

·U.S. attorneys seeking to disquali­fy certain defense counsel; and.

'IRS requirements for reportingcash fee payments to attorneys of$10.000 or more and considerableidentifying information about clients.

At the meeting, Justice Depart­ment representatives countered:

'No one should be able to keep theproceeds of criminal conduct nor beable to buy anything including legalservices with it;

'The Sixth Amendment to the U.S.Constitution does not guarantee coun­

30/Arkansas Lawyer/January 1987

YOUNG LAWYERS' UPDATE

YLS ProgramsUndelWayof this competition will go toWashington, D.C., in the latespring to represent Arkansas inthe national mock trial competi­tion. During the month ofNovember, the YLS ExecutiveCouncil began a recruitment cam­paign to enlist attorneys to partici­pate as coaches, judges andscorekeepers in the mock trialcompetition. Those of you whohave participated in this programin the past have indicated you en­joyed the experience and we hopethat you will agree to continueyour involvement with the mocktrial competition.

Finally, Mike Crawford, chair ofthe YLS Law Week Committee, isworking on ways to stimulate morestatewide interest among lawyersand local bar associations in no·tional Law Week activities. Formany years, certain local barassociations in the state havebeen very active in planning andcarrying out programs during LawWeek that reflect favorably on thelegal profession and help to re­store our profession's sometimestarnished public image. In view ofthe negative publicity that thelegal profession has received inrecent months, it is extremelyimportant that we use this year'sLaw Week activities to bring to thepublic's attention the many sig­nificant but often overlookedpublic and civic contributionswhich are made by members of ourprofession.

I urge each of you to see thatyour local bar association takespart in this year's Law Week activi­ties. The YLS has access to a widerange of how-to materials whichcontain ideas and instructions onimplementing meaningful pro­grams. 0

January 1987/Arkansas Lawyer/31

nize and appreciate the benefitsthClt he enjoys from living in ademocracy in which certain in­alienable rights are recognizedand protected by the Constitution.One such program that john hasdecided to implement is aspeaker's bureau composed oflawyers who are willing to speakto business and civic clubs andorganizations on the importance ofthe Constitution to our way of life.john has asked the YLS to assisthim in developing a list of attor­neys from throughout the statewho are willing to participate inthe speaker's bureau. Please con­tact me if you are interested in be­coming involved in this worth­while project.

Marcia Barnes. chair of the YLSMock Trial Committee, currently issigning up high schools to partici­pate in this year's statewide mocktrial competition. The state winner

By j. Thomas Ray

On October 15 to 17, 1986, theYoung Lawyers' Section sponsoredthe annual Practice Skills Seminarfor recent admittees to the Bar ofArkansas. This year's seminarmarks the 26th consecutive yearthat the YLS has sponsored thisprogram. As many of you knowfrom having attended the seminarin previous years, the program isdesigned to assist new lawyersand recent law school graduatesin bridging the gap between lawschool and law practice. Gregjones and Rosalind McClanahanchaired this year's seminar anddid an outstanding job of organiz­ing the program and lining upspeakers. judging from the com­ments made by the more than 50attorneys who attended, the pro­gram was a great success.

Next year is the bicentennial ofthe signing of the United StatesConstitution, an event of great im­portance to all citizens and ofspecial significance to lawyers.Because many citizens take forgranted the rights and libertieswhich are guaranteed by the Con­stitution, next year's BicentennialCelebration provides a uniqueopportunity for the legal profes­sion to educate the public on theimportance of the rights whichflow from that great document.

john P. Gill is chair of the Ar­kansas Bar Association's Bicen­tennial Committee charged withthe responsibility of developingand coordinating programs tocelebrate this historic event. Oneof the goals that john and his com­mittee hope to achieve is to formu­late and implement programs thatcause the average citizen to recog-

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321Arkansas Lawyer/January 1987

-- -----,

IN-HOUSE NEWSLAW SCHOOLS, A.I.C.L.E. AND HOUSE OF DELEGATES

UNIVERSITYOFARKANSASSCHOOLOF LAW,FAYEITEVIllE

By J. W. Looney

Robert B. Leflar's arti­cle, "Liberty and Death:Advance Health CareDirectives and the Lawof Arkansas" appearedin the Arkansas LawReview. He also wrote afeature for AgriculturalLaw Update entitled"Supreme Court Up­holds FDA ActionLevels." He was aspeaker at the AmericanPublic Health Associa­tion annual meeting inLas Vegas.

Jake Looney spoke atLonoke on "Legal Issuesof Farm Debt;" to theWashington County BarAssociation on "Ar­kansas Statute Re­vision;" at Marion on"Organizing FarmerCooperatives;" at theState Department ofHigher Education Con­ference on "Whose Eth­ics and Whose Morals inTeaching;" at the Arkan­sas Trial Lawyers Asso­ciation meeting on"Resolving Water Con­flicts - The Status ofCurrent Law and Pro­posed Future Changes;"at a regional workshopfor extension livestockspecialists on "The Ef-

feet of the 1986 Tax Acton Lives tock Prod uc­tion;" and was a panel­ist at the American Agri­cultural Law Associa­tion educational confer­ence in Ft. Worth. Hisarticle, "Legal Aspectsof Embryo Transfer"appeared in EmbryoTransfer.

Rodney Smolla'streatise Law of Defa­mation was releasedby Clark Broadmanpublishers.

Linda Malone spokeat the Euro-AmericanAgricultural LawConference in Ply­mouth, England.

Don Pedersen spokeat the American Agricul­tural Law Associationannual educational con­ference in Ft. Worth.

Bob Laurence was aspeaker at the FallLegal Institute.

Chris Kelley spoke on'Historical and PoliticalEvents Among theSouth's Pulpcutters andHaulers at a publicforum presented by theUnited Woodcutters As­sociation and SouthernWoodcutters AssistanceProject.

Bill Lancaster was apanelist at a symposiumsponsored by the Ful­bright Institute of Inter­national Relations andspoke to two groups inRogers on tax reform.

Student Activities

Holly Smith, BrentLangdon and GeorgeNowotny representedthe law school at anABA/Law Student Divi­sion workshop in Dallaswhere they received

special recognition forUA participation in theABAILSD program.

The Robinson Senateof Delta Theta Phi wasselected as the outstand­ing student senate of thefraternity in the regionwhich encompassesTexas, Oklahoma, NewMexico, Louisiana andArkansas.

Ceremonies rededi­cating the renovatedand expanded Water­man Hall were held dur­ing the Fall Legal In­stitute. The addition,primarily for libraryspace, brings the totalarea to approximately60,000 square feet whichwill provide adequatespace for library growthfor the next severalyears.

Professor WadeMcCree, Jr., formersolicitor general andpreviously a member ofthe Seventh CircuitCourt of Appeals, now ofthe University of Michi­gan Law faculty, gavethe dedication addresswhich was followed by areception/open house.

UNIVERSITYOFARKANSASAT UITLEROCKSCHOOL OFLAW

By Paula Casey

Professor Irving

Younger presented alecture "Ulysses inCourt," an account of theextraordinary litigationsurrounding the firstpublication of JamesJoyce's celebratednovel, in the UALR FineArts Hall on November13, 1986. The lecture wassponsored by the UALRLaw School and itsStudent Chapter of theAssociation of TrialLawyers of Arkansas.Judge Henry Woodsintroduced ProfessorYounger.

The UALR Law SchoolAlumni Associationheld its annual Dean'sParty in the home ofJohnnie Holcomb inLittle Rock on November15, 1986. The party washosted by the currentpresident of the Associ­ation, Steve Morley, thepast president, MaryDavies Scott, and thepresident-elect, W. JaneKnight. Terry Ball co­ordinated the event.

Professor EllenBrantley served as aspecial justice on the Ar­kansas Supreme Courtand was appointed byChief Judge G. ThomasEisele of the FederalDistrict Court to a statetask force to recommendany increased resourcesthe federal courts willneed to deal with deathpenalty habeas corpuscases.

Bill Haught andProfessor Brantley re­cently completed a sup­plement to their book,Arkansas Probate.

Arkansas LegislativeDigest, Inc., has just

January t987/Arkansas Lawyer/33

published ProfessorGene Mullins' book AHandbook for Legisla­tive Drafters. ProfessorMullins co-chairedAICLE's recent seminar,"Legislation and Legis­lative Advocacy.

Donaghey Distin­guished ProfessorRobert R. Wright III andProfessor Mort Gitelmanof the University of Ar­kansas School of Law.Fayetteville have com­pleted a supplement totheir casebook on landuse. It is being printedby West PublishingCompany.

Professor Wrigh trepresented the GeneralPractice Section of theAmerican Bar Associa­tion at an institute at theVermont Law School an­nouncing the inaugura­tion of a course of studyin the general practiceof law on September26-28. 1986. He was apanelist in a discussionof the concept. Thepanel also included theHonorable FredericAllen, chief justice of theVermont SupremeCourt, former VermontGovernor Philip Hoff, apracticing attorney,Peter Teachout. associ­ate dean at Vermont,and the HonorableJames Oakes. judge ofthe United States Courtof Appeals for the Sec­ond Circuit.

Professor SusanWright and ProfessorRobert Wright attendedthe ABA's annual meet­ing in New York City inAugust.

A 1986 supplement toEstate Valuation Hand­book by Dean LawrenceH. Averill, Jr. was re­cently published byWiley Law Publications.Dean Averill has alsocompleted a second edi­tion of his Probate Codein a Nutshell. which willbe published by WestPublishing Company.

Professor GlennPasvogel made apresentation concern­ing recent cases on Ar­kansas debtor/creditorlaw to the Arkansas BarAssociation's Fall LegalInstitute in Fayetteville.

The law school is for­tunate to have severallocal attorneys teachingclasses at the schoolthis fall. Byron Eisemanis teaching estate andgift tax. Tom Overbeyand Craig Westbrookare teaching deferredcompensation, ClayPrice is teaching lawand economics andAllan Gates and WalterG. Wright are teachingenvironmental law.Philip E. Kaplan, Honor­able John F. Forster, Jr.,Sherry Bartley andMichael D. Johnson areteaching trial advocacyworkshops.

Student ActivitiesPatricia Eables, ABA

Law Student Divisionrepresentative, PattyLeuken, the Student BarAssociation presidentand Kim Burnette at­tended the ABAILSD fallroundtable for the Tenthand Thirteenth Circuitsin Dallas on September26-28, 1986. Lawstudents from Arkansas,Oklahoma. Kansas,Texas and Louisianaattended.

A.I.e.L.E.NEWS

By Dr. Rae Jean McCall

Keeping current in achanging profession islike trying to keep up­right on a surfboard ...the waves make it diffi­cult; but with knowl­edge, skill and practiceit can be worth theeffort!

During the past year,more than 1,500 attor­neys in Arkansas parti-

cipated in continuinglegal education pro­grams sponsored by theArkansas Institute forCLE. Providing qualityprograms is a serious re­sponsibility; a commit­ment that is not takenlightly by the AICLEBoard of Directors.

At the October 2. 1986,Board of Directors' meet­ing the followingofficers were elected:Dennis 1. Shacklefordof EI Dorado. presi­dent, Wayne Boyce ofNewport, vice presi­dent. Marvin Kieffer ofJonesboro. secretary­treasurer and James M.Moody of Little Rock,program chair.

James A. McKenzie ofPrescott was named in­terim secretary and H.Murray Claycomb ofWarren was named in­terim treasurer follow­ing the death of Kiefferon October 28, 1986.

KUDOS forPrevious ProgramsCLE programs in Ar­

kansas are made possi­ble through the dedi­cated efforts of the manyindividuals who serveas program chairs andfaculty. They deservespecial recognition forthe countless hours ofplanning. preparingand sharing. wi thou tpay. their knowledgeand experience.

Special recognition isgiven to the follow­ing individuals whoserved as programchairs:

'Martha Miller andProf. Gene Mullins co­chaired a program en­titled Legislation andLegislative Advocacy onSeptember 26. 1986.Mary Davies Scott andMark Lester co-chairedthe Fall Legal Institute:Bankruptcy - Basic andAdvanced Sessions heldin Fayetteville onOctober 2-3, 1986.

'Although Immigra-

tion Law: IntroductoryTopics had to be can­celled due to inade­quate pre-registrations,Kathy Goss and Pro!'Arthur Murphey plannedand prepared an inform­ative program. The 1986Practice Skills Coursewas chaired by RosalindR. McClanahan andGregory T. Jones.

'Harold Simpsonchaired the Health LawUpdate on November 7,1986, and MichaelParker co-chaired theFederal Tax Institute onDecember 4-5, 1986.

AICLE thanks these in­dividuals and the facul­ties for making these CLEprograms successful.

Preview ofComing Events

The Mid-Year Meetingof the Arkansas Bar As­sociation. scheduled (orJanuary 23-24. 1987, atthe LiWe Rock ExcelsiorHotel, will feature theLatest in the Law. In­cluded will be high­lights of the 1986 Tax Re­form Act in addition tosessions on ArkansasDivorce Practice: Allo­cation of Property andState and Federal Ap­pellate Decisions.

The 1987 Federal Prac­tice Seminar. March 13at the Little Rock Excel­sior HoteL will featureArkansas federal judgeson "Improving the Qual­ity of Advocacy" plusother topics of interest topracticing attorneys.

On April la-II. aLabor Law and LaborRelations Seminar willbe conducted at theDeGray State ParkLodge and ConventionCenter in Arkadelphia.This program will covermajor areas of concernto the practitioner inI abo r- man age men trelations.

May I is the date forthe 1987 Tax AwarenessSeminar at the Little

341Arkansas Lawyer/January 1987

Rock Excelsior Hotel.This "nuts and bolts"seminar will providepractical. timely infor­mation on the 1986 TaxReform Act that every at­torney should know.

For more informationon any of these pro­grams, contact theAlCLE office.

AlCLE Has MovedThe new offices for

the staff of the ArkansasInstitute for CLE are lo­cated on the seventhfloor of the ArkansasLaw Center building.The address will remainthe same, 400 WestMarkham, Little Rock,AR 72201. However, thetelephone numberhas been changed to375-3957.

ARKANSASBARASSOCIATIONHOUSE OFDELEGATESMEETINGOCTOBER 4, 1986

The fall meeting of theArkansas Bar Associa­tion's House of Dele­gates was held duringthe Fall Legal Insti­tute at the Fayette­ville Hilton. PresidentRichard F. Hatfieldpresided.

The House approvedthe minutes of its June 7,1986, meeting. It also ap­proved an unaudited fi­nancial statement datedAugust 31. 1986, and 20applications for mem­bership.

Sandra Wilson Cher­ry. secretary-treasurer.certified live newdelegates to positions inthe House.

Philip E. Dixon, chairof the Membership Com-

mittee, reported on ef­forts to increase themembership of the As­sociation. Dixon re­ported a net gain of 134new members as of Sep­tember, 1986, includingnewly admitted attor­neys to the bar.

President Hatfield,reporting for the Manda­tory CLE Committee inthe absence of its chair,W. Russell Meeks, III,advised that theSupreme Court has in­cluded in its budget nowbefore the legislature aposition for a court ad­ministrator which, if ap­proved, will be suf­ficient to administer andcarry out the mandatoryCLE program.

William D. Haught.chair of the AgricultureLaw Committee, dis­cussed the Association'sparticipation in theFarm Family SupportProject. Plans include amailout to all attorneysrequesting volunteers torepresent farm familiesin need identifiedthrough a "hot line" es­tablished by the project.A statewide listing ofArkansas attomeys will­ing and able to con trib­ute their services willthen be developed. TheAgriculture Law Com­mittee will be responsi­ble for coordinating ourporticipotion.

James H. McKen­zie, chair of the Resolu­tions Committee, re­ported that a request tothe Resolutions Com­mittee for a resolutionon Amendment 66 didnot comply with the con­stitutional provisionsfor consideration by thecommittee and, there­fore, no such resolutionwould be presented tothe House for its consid­eration. Mr. McKenziefurther reported thatResolution 86-6 address­ing Amendment 67 wasnot timely filed, and be-

cause no motion wasmade that the rules besuspended, it was notconsidered.

The House approved aresolution urging allmembers of the legalprofession to refrainfrom paid commercialadvertising.

Tom Carpenter, chairof the Group InsuranceCommittee, reportedthat the committee rec­ommended against anyeffort in Arkansas toform a self-insurancecompany in reaction tothe rising number ofmalpractice actions.The committee didadvocate that futuresteps be taken whichwill be aimed at lossprevention.

In the absence of JackC. Deacon, Herschel H.Friday reported on theissues addressed by theABA House of Delegatesat its recent meeting. in­cluding a resolution thatany agreement betweenthe American Bar Asso­ciation and the Associa­tion of Soviet Lawyersinclude a commitmentto a dialogue on humanrights. The ABA alsoadopted a resolution infavor of proposedamendments to limit ap­plication of the RICOstatute.

Friday tendered hisresignation as ABAdelegate inasmuch ashe will hold a delegateposition by virtue of hisservice on the Board ofGovernors. PresidentHatfield then nomi­nated, and the Houseapproved, Jack C.Deacon to serve in thisposition.

Markham Lester, onbehalf of IOLTA, re­ported on its recent ef­forts to recruit lawyers'participation in theIOLTA program. Lesterintroduced the new exec­utive director of IOLTA,Suzanne Roberts, who

provided an update onlawyer participation andcooperation by Arkansasbanks.

John P. Gill. chair ofthe Bicentennial Com­mittee, outlined thecommittee's plans to ed­ucate the Arkansaspublic regarding theconstitution and itsmeaning. Plans includespeeches by members ofthe Association beforecivic and other localgroups.

Vincent W. Foster, Jr.,chair of the Associa­tion's Jurisprudence andLaw Reform Committee,recommended on behalfof the committee thatcertain proposed legis­lation be included in theAssociation's legisla­tive package for 1987including:

(I) A bill to amend thenotice to creditorsstatute, (Ark. Stat. Ann.§ 62-211 I) deleting thesix-month exception fortort claims and requir­ing that actual notice begiven to creditors whoare known to the per­sonal representative orwhose identity can beascertained with rea­sonable diligence;

(2) A bill amendingArk. Stat. Ann. §62-2505cto expand the authorityof the personal repre­sentative of an estate topay small claims up to$3,000 without filing asrequired by Ark. Stat.Ann. § 62-2603;

(3) A bill revising thegarnishment statutes(Ark. Stat. Ann. § 31-501et seq.). The Committeerecommended that theHouse should delegatethe authority to draftand approve such a billto tbe Legislative Over­sight Committee.The recommendationsof the Jurisprudence andLaw Reform Committeewere adopted.

Martha Miller, lobby­ist for the Association,

January 1987/Arkansas Lawyer/35

reviewed the procedurein place for approvaland passage of theAssociation's legisla­tive package to bepresented at the upcom­ing legislative session.Miller sought directionfrom the House on vari­ous matters relating tochanges in the civil jus­tice system likely to beconsidered by the legis­lature in the near future.

The House elected totake no action concern­ing possible legislationon joint and severallia­bility and the collateralsource rule thereby per­mitting the LegislativeOversight Committee toreact as it deems neces­sary at the appropri­ate time.

The House approved a

motion by WinslowDrummond, secondedby Robert K. Walsh, thatthe Association opposeany effort to legislate aprovision for bifurcationof trials.

The House also tookno action on legislationpertaining to the statuteof repose on products li­ability, alternate dis­pute resolution and lim­ited liability for di­rectors of non-profitcorporations, thus dele­gating action on thesematters to the Legis­lative OversightCommittee.

Winslow Drummondmoved that the Housesupport any effort by theinsurance commis­sioner to expand his au-

thority in order to put theburden of going forwardwith the insurance car­rier rather than theplaintiff. The motionwas seconded andpassed.

The House furtheradopted a motion madeby Charles Carpenterdirecting the LegislativeOversight Committee tooppose any change inthe Rules of Civil Pro­cedure by legislativeaction.

At the request of Exec­utive Director WilliamA. Martin, Dennis L.Shackleford introducedthe new director ofAICLE, Dr. Rae JeanMcCall. Shacklefordthanked Mary DaviesScott and MarkhamLester for the outstand-

ing program at the FallLegal Institute.

President Hatfieldreparted that the Associ­ation is progressing wellon its goals regardingtort reform. increasedmembership, the Bicen­tennial of the UnitedStates Constitution andspecialization. PresidentHatfield also announcedthat the Associationwould host the SouthernConference of BarPresidents at Little Rockon October 23-25, 1986.

There being no furtherbusiness, the meetingwas adjourned at11:00 a.m. 0

Respectfully submitted,

Sandra Wilson CherrySecretary-Treasurer

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