july 1980

Whenyou need abank thatoffers professionalism to professionals, call

-We've known for a long time that attorneysselect a trust department for two very simplereasons. First, they want to be known andappreciated. And second, they want, in factthey expect, a maximum of service for aminimum of inconvenience. This is why wehave always been concerned with offering ourclients good service and good treatment. Butwe think being good is not enough. Therefore,we have made a commitment, not just tobecome better, but to be the best.And that's what we mean when we say we areThe Trust Bank. It is our continuing effortto be simply, The Best.

Commercial National Of Little Rock

July 1980Vol. 14, No.3

THE OFFICIAL PUBLICATIONOF THE

ARKANSAS BAR ASSOCiATION

OFFICERSPhillip Carroll, PresidentJames Cypert, President-Elect

EXECUTIVE COUNCILDennis ShacklefordClint HueyWebster L HubbellGus B. Walton, Jr.David R. MaloneThomas D. LedbetterRobert G. SerioLeRoy Froman

EX-OFFICIOPhillip CarrollJames CypertE. Harley Cox, Jr.Don M. SchnipperHerschel H. FridayLouis B. Jones

EDITORC. E. Ransick

EDITORIAL COMMITIEERobert T. DawsonE. Alvin SchayCyril Hollingsworth

(§Ie

ArkansasLawyer

SPECIAL FEATURESCover:

NINE VERY HUMAN MEN 167A Timetable for an Office

Relocation.... .Mary Ann Altman 140Questions and Answers About the

Performance of Music Under theNew Copyright Law John C. Goldstein 148

Canons of American Citizenship . . . . . . . . . . . . . . . . . .. 154Control Your Files to Prevent

Malpractice Claims , Laurie H. Hutzler 132Federal Income Tax Treatment

of Certain Transfers Underthe New Arkansas PropertyDivision Law Charles C. Owen 128

Annual Meeting 146

REGULAR FEATURESPresident's Report Phillip Carroll 126Juris Dictum 144Legal Economics. . . . . . . . . . . . . .. .. .. • .. .. . . . . . . . . . . . . . . .. 140Law School News ..........•.•.•.•...................... 158Oyez-Oyez B. Tarkington 156In Memoriam 142Executive Council Notes ..........•.•......James A. Butlry 164Service Directory IBCLawyer's Mart ........•.•.•.............................. 131Addenda.. . . C. E. Ransick 167Context W. Christopher Barrier 136AICLE News Claibourne W. Pally, Jr. 160The Arkansas Bar Foundation Boyce Love 162Tax Tips .......................•.........Paul D. Williams 168

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas BarAssociation, 400 West Markham, Little Rock, Arkansas 72201. Second classpostage paid at Little Rock, Arkansas. Subscription price to non-members of theArkansas Bar Association $6.00 per year and 10 members $3.00 per year includedin annual dues. Any opinion expressed herein is that of the author, and notnecessarily that of the Arkansas Bar Association. The Arkansas Lawyer, or theEditorial Committee. Contributions to The Arkansas Lawyer are welcome andshould be sent in two copies to the Arkansas Bar Center, 400 West Markham, LitlleRock, Arkansas 72201.

All InqUIries regarding advertlsing should be sent 10 The Arkansas Lawyer,above address.

July 1980{Arkansas Lawyer/125

PRESIDENT'S REPORT

by PHILLIP CARROLL

"PLANNING AHEAD IS THE HARDEST WORK THERE IS."-Ben Franklin

1980/sIn mid-April, 1980, approximately forty members of the

House of Delegates and other leaders of the Associationmet for the purpose of deciding upon the projects, both longand short range, which should be given priority attention bythe Arkansas Bar Association. A report on the suggestionsmade by the three teams of lawyers, judges, and legaleducators affords an opportunity to chart the Association'scourse in the months and years ahead:

TEAM 1. DEAN DAVID EPSTEIN, REPORTER.

a. Mandatory continuing legal education. Increasethe use of videotape for regional meetings. IsA.I.C.L.E. (the joint venture of the two law schools andthe Arkansas Bar Association) structured properly tocarry out its responsibility?

b. A bar sponsored bar examination preparatorycourse. Candidates now spend upwards of $300 toattend courses conducted by private groups. Can theAssociation do the job better and at lower cost?

c. Interest more lawyers in taking part in bar activities. Create and promote more bar activities at thelocal level. Organize small groups where none exist.

126/Arkansas Lawyer/July 1980

d. Increase professionalism. How do we get the ideaacross that the practice of law is a profession and not abusiness? Advisory opinions on legal ethics problemsshould be issued. Improve the outreach of the educational programs. Make the public aware of law practiceas a profession. The Association should be a clearinghouse to increase the community involvement oflawyers. Take steps to decrease the cost of providinglegal services. See to it that clients understand the costearly in the litigation process. Help younger lawyers indealing with clients, and encourage settlements beforecosts get out of hand.

TEAM 2. DEAN ROBERT WALSH, REPORTER.

a. Law reform. Draft legislation to replace outmodedlaws. Promote the bar legislative package aggressively--<:onduct regional meetings to explain the package to legislators and local bar associations. Delegate watchdog responsibility during the legislativesession to a small group of responsible bar leaderswho can act quickly to fight bad legislation. (Set upweekly conference calls at a designated time to assurethat the interests of lawyers are properly protectedduring the session.) Provide legislators with short andsuccinct summaries of the Bar's position on billsunder consideration. Encourage good lawyers to actively participate in the legislative process.

b. Cost of legal services. Urge judges to rule quickly toreduce duplications, interrogatories and unnecessarydiscovery. Encourage the use of modern law officetechniques, cheaper delivery of legal services, and theinformal resolution of disputes. Form arbitration panelsstaffed by lawyers and perhaps even by senior lawstudents. Work to increase the jurisdiction of smallclaims and municipal courts.

c. Improve the judicial system. The system will neversubstantially improve until salaries are high enough toattract the very best lawyers. All judges should havesecretarial assistance. Telephone conference callsshould replace docket calls and gatherings heldmerely to select trial dates.

d. Law student support. The proposal for a bar exampreparatory course sponsored by the Association metwith a mixed reaction. Liaison should be established,however, between the bar examiners and the facultiesof the two law schools. Following each exam, questions and the examiner's model answers should beSUbmitted to faculty representatives who will be givenan opportunity to suggest revisions to the modelanswers as well as additional points that may be expected to be found in student responses to the questions. This liaison will tend to promote fairer gradingpractices and better bar exam questions; and it mayenable the law schools to better anticipate the needs ofstudents.

e. Public Information. Communicate and highlight thepositive aspects of the profession.

f. The high cost of litigation. A special study committeeshould make recommendations and possibly draftlegislation to expand the types of cases in which reasonable attorney fees are awarded to the victor.

TEAM 3. CHRISTOPHER BARRIER, REPORTER.

a. Education of lawyers in and after law school. Urgemore clinical training, improve lawyer client communications, and formalize relationships by engagementand employment letters. The study of professionalethics should be mandatory in law school and as a partof CLE training.

b. Access to lawyers and meeting the need for legalservices. Specialists should be certified. Continuinglegal education should be mandatory, utilizing regionalseminars. Initiate prepaid legal services and othermethods to serve middle income clients. Continue public education programs to educate the public aboutlawyers and what they do. Approach the elimination ofunauthorized practice of law positively-attack substandard practices which are harmful to the public.

c. Economic delivery of quality service. Continue topublish "Systems" to help lawyers. A task force shouldlook for more methods to provide tools to enable thesmall town practitioner to continue to exist as an institution. Look for inexpensive ways to resolve minor disputes.

d. Professional relationships. Continue with an activepublic relations program. Fight government regulations of the legal profession. Stay alert to the problem.Improve relationships with the press--<:onduct jointmeetings-train lawyers to deal with reporters. Workwith the jUdiciary-streamline procedures-urge theelimination of expensively printed appellate briefs.Look for new methods of getting cases tried moreefficiently. Grease the machinery for assignment ofjudges between judicial districts. Cause judicial candidates to commit themselves to accept the assignmentof cases from other districts.

There ought to be several items in these suggestions thatappeal to each member of the Association. Contact yourrepresentative in the House of Delegates and make sureyour favorite project is made known. I'd like to hear from youtoo. Making the next year a memorable one for lawyers is thegoal of your officers, but we can't do it alone. Pitch in andhelp! No advice will be ignored, and fair criticism of ourefforts will cause corrections to be brought about promptly.

f--July 1980/Arkansas Lawyer/127

FEDERAL INCOME TAX TREATMENT

OF CERTAIN TRANSFERS UNDER

THE NEW ARKANSAS PROPERTY

DIVISION LAW

BY CHARLES C. OWEN

The purpose of this article is to review the federal income tax consequences of certain transfers of appreciated property pursuant to a property settlement or divorce decree underthe provisions of the new Arkansasproperty division law, as contained inSection 1 of Act 705 of 1979 (the"Act"), which amended Section 341214, Ark. Stat. Ann. (1962 Repl.). Thefirst general rule in the Act provides thatupon the entry of a divorce decree themarital property (as defined in the Act)shall be distributed one-half to eachspouse "unless the Court finds such adivision to be inequitable." If an equaldivision would be inequitable, an"equitable" division shall be made giving due consideration to eight enumerated factors. The second general rulein the Act provides that the separateproperty of each spouse shall be returned to the spouse "who owned itprior to marriage unless the Court shallmake some other division that theCourt deems equitable taking into consideration" the same eight factors. Thisarticle will discuss the federal incometax treatment of a transfer to a spouseof appreciated marital property by thespouse who holds title thereto for thepurpose of an equal property divisionpursuant to the first general rule in theAct.


In the landmark decision of U.S. v.Davis, 370 U.S. 65 (1962), the UnitedStates Supreme Court held that atransfer of separate property by a husband to his wife in satisfaction of herinchoate marital rights resulted in taxable gain to the husband measured bythe difference between the fair marketvalue at the time of the transfer and thecost basis of the property. Prior to theAct (and under the Act in the case of adiscretionary division by the Court ofmarital property or separate property),it was clear that such a transfer underArkansas law resulted in a taxable gainto the husband. In considering whetherthe Davis doctrine will be applicable toa transfer to achieve an equal divisionunder the Act, it is helpful to analyze thestate law involved in Davis.

Davis involved a transfer by thetaxpayer-husband of shares of appreciated stock to this wife in exchangefor a release of her inchoate maritalrights under Delaware law. The taxpayer-husband contended that thetransfer was comparable to a nontaxable division of property betweentwo co-owners. In rejecting this argument, the Court note that under Delaware law the wife had no interesteither passive or active-in the management or disposition of the husband's personal property, that the

Author Charles C. Owen is amember of the Rose Law Firm, Little Rock; Co-editor of this series ofarticles by the Arkansas BarAssociation's Taxation, Trust andEstate Planning Section; memberof ABA's Sections of Taxation, andReal Property, Probate and TrustLaw and is Vice-Chairman of theRPPT Committee on SignificantCurrent Legislation, Probate andTrust Division as well as an activemember of Committees on ExemptOrganizations, Special Problemsof Farmers and Ranchers andFormation, Administration andDistribution ofTrusts; and memberof various CPA and Bar organizations.

wife's rights were not descendibie, thatshe must survive the husband to sharein his intestate estate, and that upondissolution of the marriage she wouldshare in the property only to the extentthat a Delaware court deemed"reasonable." In determini ng what

would be reasonable, the Court notedthat Delaware law would require consideration of such factors as "the wife'sfinancial condition, her needs in relation to her accustomed station in life,her age and health, the number of children and their ages, and the earningcapacity of the husband." The Courtstated that the inchoate rights granteda wife under Delaware law in her husband's personal property did "not evenremotely reach the dignity of coownership," but rather constituted aburden on his property.

Notwithstanding the Davis case,there are certain transfers in commonlaw jurisdictions which are treated asdivisions of co-owned property and,therefore, are not taxable to the transferor. These transfers involve either (1)certain divisions of jointly-held propertyor (2) divisions of property pursuant tostate property law which is similar tocommunity property laws. See Rev.Rul. 74-347, 1974-2 C.B. 26. With respect to the latter type of state propertylaw, taxpayers have been successful inOklahoma and Colorado in convincingfederal courts that property held by thehusband was acquired by the joint efforts of the spouses during their marriage and its division was a transfer ofco-owned property.

In Collins v. Commissioner, 412 F.2d 211 (10th Cir. 1969), the courtadopted an opinion of the SupremeCourt of Oklahoma involving the taxpayer and his wife which held that theproperty transferred was acquired bythe joint efforts of the parties duringtheir marriage and in which the wifehad obtained a vested ownership interest. Thus, the division of the property was held to be nontaxable. In Imelv. U.S., 375 F. Supp. 1102 (D. Colo.1974), the court certified to the Colorado Supreme Court the questionwhether a transfer to the wife of 50% ofthe property acquired through joint efforts but owned by the husband wasthe partition of property in which thewife had an ownership interest. Following the receipt of an affirmative answer,the court held that the transfer was nontaxable.

It is important to note, however, thatin planning for a transfer under Arkansas law, Collins and Imel cannot berelied on as precedents for federal income tax purposes. In Commissionerv. Estate of Bosch, 387 U.S. 456(1967), the Court held that the InternalRevenue Service and federal courts

are not bound by characterizations ofrights and interests created under statelaw unless such characterizations arecontained in an opinion by that state'ssupreme court. Bosch further held thatfederal courts are free to disregard intermediate court decisions if they are"convinced by other persuasive datathat the highest court of the state woulddecide otherwise." For exampleswhere taxpayers were unsuccessful inapplying, by analogy, Collins, seeRichard E. Wiles, 60 T.e. 56 (1973)and Wallacev. U.S., 439 F. 2d 757 (8thCir.1971).

Therefore, in order to argue successfully that the Davis doctrine does notapply to a transfer under the Act, it isnecessary that the Act be interpretedas creating equal property interests ineach spouse in marital property regardless of how title is held. In addition,such property interests should vest atthe time of acquisition, thereby creatingan interest which is descendible atdeath. Interpreted in this manner, theAct would, in effect, be a communityproperty-type system. However, thisdoes not appear to be the intent of theLegislature in enacting the Act. See the"1978-79 Annual Report, ChairmanFamily Law Section," Arkansas BarAssociation, pages 9 through 17.

At first blush, it does appear that theAct creates a form of community property law. However, under communityproperty laws a spouse's communityinterest is generally vested and is descendible at the death of that spouseregardless of how title is held. Arkansas law does not appear to afford similar treatment, notwithstanding the Act.Such a conclusion is reasonable in lightof the fact that only the property division laws relating to divorce were affected by the Act. Statutes affordingdower and curtesy interests were notaffected. Accordingly, a spouse whodoes not have title to marital propertyhas only a dower or curtesy interest inthat property in the event the otherspouse dies. Furthermore, those interests, being personal, lapse with thedeath of the holder.

Absent an Arkansas Supreme Courtdecision that the Act creates a vestedinterest in each spouse in the maritalproperty, it appears that, at best, aspouse who does not have title to marital property has a contingent interest inthat property subject to becoming vested or divested, as the case may be,upon the dissolution of the marriage,

and extinguished upon the death ofeither spouse prior to the commencement of a divorce action. Although marital misconduct is no longer statutoryfactor in the division of property, it appears that the interest of a spouse whodoes not have title in marital property ismore of a dower-like interest burdeningthe property rather than an ownershipinterest. Thus, the Davis doctrinewould apply to a transfer under the Actand treat such a transfer as a taxableevent to the transferor.

However, considering the legislativehistory of Act 705 of 1979 as set forth inthe Annual Report noted above, thequestion of taxability of a transfer maybecome moot in the future as it appearsthat Arkansas may be headed towardthe adoption of a community propertysystem. The genesis of Act 705 of 1979was House Bill 88 which was drafted indirect response to the dissenting opinion of Justice Darrell Hickman inMcNew v. McNew, 262 Ark. 567, 559S.w. 2d 155 (1977), 573-74, whichquestioned the constitutionality of theproperty division law in effect prior toAct 705. In his dissent, JusticeHickman stated the following at page573:

The Arkansas law regardingproperty was enacted before theturn of the century and can nolonger be defended historically orlegally with any confidence. ltclearly violates the Equal Protection Clauses of the Arkansas andthe United States Constitutions.

Although stated in the context of a divorce action, the above quote may wellhave significance and application tothe Arkansas provisions for dowerwhich are clearly gender-based andmay be constitutionally suspect. SeeOrr v. Orr, 99 S. Ct. 1102 (1979). Thus,if those provisions are successfullychallenged, the groundwork will havebeen laid for the adoption of a community property system, in light of theenactment of Act 705 of 1979 and thefollowing from Justice Hickman's dissent in McNew at page 574:

Parties marry, share their love,lives, fortunes and misfortunes.In divorce they should shareequally the property they haveaccumulated during their marriage. Anything less is obviouslyunfair.

It is submitted that anything less atdeath is equally unfair. ""-

July 1980/Arkansas Lawyer/129

Your sales representative in Arkansas isWilliam C. Jones phone: 327-6526 (Conway)P.O. Box 1306 375--4322(little Rock)Conway, Arkansas, 72032

Arkansas Statutes (Annotated), 19472S Volumes with 1979 CumulativeSupplements $325.001979 Cumulative Supplements 95.00

Probate Laws of Arkansas. 1961Compiled by Publisher's Editorial "itaff465 pages with 1979-80 Supplement S,35.00Supplement Separately 17.50

Workbook for Arkansas Estate Planners,1967By Mitchell D. Moore and WilliamH. Bowen

11 Chapters, Index, looseleaf withhardcover binder $35,00New edition forthcoming

Prices subject to shipping, handling and taxwhere applicable.

Arkansas Banking laws, 1966Compiled by Arkansas Banking As·sodation and Publisher's Editorial Staff

446 pages, hardbound $25.00

Arkansas Eminent Domain Digest, 1964Compiled by University of ArkansasSchool of Law, Robert R. Wright,Project Director

266 pages; hardbound $12.50

Arkansas Model Criminal Jury Instructions, 1979Drafted by the Arkansas SupremeCourt Committee on Criminal lury Instructions

389 pages, looseleaf with hard-cover binder $65.00

American Conflicts Law, Third Edition, 1977By R. A Leflar

688 pages, hardbound $35.00

MICHIE~BOBBS-MERRJLL

.--------The Complete Library for the Arkansas Lawyer --,

Word Data, Inc.CPT Word Processing Systems

- SALES & SERVICE -

OFFICES: LITTLE ROCK - FAYETTEVILLE - FORT SMITH1105 Boyle Bldg., Little Rock - (501) 372-2355 - Call Ron Blasingame316 Dickson, Fayetteville - (501) 521-3088 - Call Wayne Easton

Court Plaza Ste. 104A, Fort Smith - (501) 521-3088 - Call Wayne Easton

CPT SYSTEMS PROVIDE:-Westlaw Access, Filing, Billing, Complete LawVersatility in Use Across the Country

Options Available Include:-Mag Card Converter, Communications, MultipleConsole, Qume or Diablo Printers, Sheet Feed I

- REFERENCES AVAILABLE UPON REQUEST -


Lawyers' Marl20c per word

$5 minimum WANTED TO BUY

Arkansas Reports (Published by the State of Arkansas).Shepard's Arkansas Citations.

BOOKS FOR SALEArkansas Statutes 1947 Annotated (The Bobbs Merrill CompanyIncorporated).Arkansas Digest (West Publishing Company).Consideration would also be given to the purchase of:

Rabkin and Johnson. Current legal Forms, not current (last update 1. Southwestern Reporter.

No. 41). New set lists for $800.00 will sacrifice for $350.00. Epley, 2. Southwestern Reporter 2d Series.

Epley & Castleberry LTD. P.O. Drawer 470 Eureka Springs, Ar· 3. Shepard's Southwestern Reporter Citations.

kansas 72632 253-8732. 4. Southwestern Digest.Abraham ResisaSenior Associate 90unsel (213) 902-3292

One year old set of Cavitch, Business Organizations (10 vols.)SAFECO TITLE INSURANCE COMPANY, 13640 ROSCOE

up to date. Covers every type of Business structure. Lists atBOULEVARD, PANORAMA CITY, CALIFORNIA 91402

$700.00. Will sell for $400.00 or best offer. Bob Jones 1-501-227-5346. Complete set of Arkansas Digest, AMI, S.W. Reporter (Ark.

Cases). Conrad C. Krauft, P.O. Box 1261, Fayetteville, Arkansas72201. Phone (501) 443-4500.

Ark. Reports Vols. 1 to 171 inclusive (except 3 volumes that aremissing in the 70's); and a complete set of Ruling Case Law Central Arkansas Legal Services needs a used set of S.W. 1st,including supplements and index.

Dean R. Lindsey, Lawyer (retired)S.C. Rep., and U.S.C.A. Contact Don Hollingsworth, 209 West

366 E. College AvenueCapitol, Suite 36, Linle Rock, AR 72201 (378-3423).

P.O. Box 2997Phone No.: 793-3158Batesville, AR 72501 EQUIPMENT FOR SALE

Law Library for sale-Arkansas Reports and Southwestern Reper- We are upgrading our equipment and will have for sale early this

ter First and Second Series (Arkansas cases only); Jones, Arkan- summer one IBM memory 50 typewriter which is currently under

sas Titles; Bengal's Arkansas Legal Forms; AMI Civil2d; Arkansas factory service contract and is complete with all instruction books.Law Review and many other miscellaneous volumes. Contact Mr. Also two Norelco dictation units and two Norelco transcriber units.

Raymond Thompson, Executor of the Estate of Verlin E. Upton, Donald Goodner, P.O. Box 567, Waldron, Arkansas 72958. 637-Deceased, 221 East Third Street, Rector, Arkansas 72461. 3286.

ALR(2d) Volumes 1 thru 29 and Volume 56. Southwestern Repor·1-IBM Executary Dictator·Model #271 $150.001-IBM Executary Dictator Model #211 $125.00

ter, Ark. Cases-Volume 180 thru 270. Mitchell Moore, P.O. Box 2-IBM Executary Transcribers·Model #211 $125.00 each.567, Osceola, Ark. 72370 (583-5252) 1-"Name CaUer" Auto Telephone Dialer-25 numbers $35.00

Mitchell Moore, P.O. Box 567, Osceola, Ark. 72370 (563-5252)

USCA (current); American Jurisprudence Proof of Facts (current);American Jurisprudence Pleading & Practice Forms (current); POSITIONS AVAILABLEAmerican Jurisprudence 2d (current); Rabkin and Johnson Cur·rent Legal Forms (current); Bender's Federal Practice Forms (cur·rent); United States Supreme Court Reports with Index (current);

Hot Springs law firm seeks lawyer with 1-2 years trial background.and IBM Mag Card Typewriter under Service Agreement, contactYOUNG & FINLEY, Attorneys at Law, 306 South Arkansas Ave- Salary per experience. CONTACT: Clark & Miller LTD., Box 1440,

nue, P.O. Box 761, Russellville, AR 72801, or phone (501) 968- Hot Springs, AR, 321-1993.

2538.

WANTED LAWYER-AGENTS: Find out, as other Arkansas

Larson's Workman's Compensation Law; Volumes 1 thru 3 with Lawyers have, how you can provide a service toyour clients, gain aindex and tables; 1976 Supplement. Contact The Arkansas new source of income and broaden your practice. WRITE: Insured

Lawyer, c/o Arkansas Bar Association, 400 West Markham, Little Titles, Inc., 200 North Main, Wichita, Kansas 67202. CALL: OurRock, Arkansas 72201. toU-free number, 1-800-835-2764.

ALR 2d, LATER CASE SERVICE. 22 Vol.; ALR 3d, 97 Vol., bothWASHINGTON, D.C. AFFILIATION

current. 50% original cost at date of sale. 501-425-2126.Engeler, Johnson & Sanders, 701 S. South SI., Mountain Home, AR Washington, D.C. law firm specializing in federal agency practice72653, 501 -425-2126. with emphasis on agriculture, energy, transportation, patent, intel·

lectual property, customs and foreign trade desires to affiliate withan Arkansas firm thai would be interested in having a Washingtonoffice and which currently has the type of practice that could makeactive use of such an affiliation. Contact Philip C. Jones, 420International Square, 1875 Eye Street, N.W., Washington, D.C.20006.


CONTROL YOUR FILES

TO PREVENT

MALPRACTICE CLAIMS

By Laurie H. Hutzler, Esq.© 1980, Legal Management Services, Inc.

If your secretary quit tomorrow morning, could you be absolutely certain offinding the file for the case you are trying in court next month? Is that file currently located on your window sill,under your desk, or on the floor in thecorner of your office?

The following statements describecommon trouble signs in a law officefiling system. If a number of thesestatements accurately describe yourcurrent filing procedures, then your firmmay be headed toward serious malpractice consequences.

• Our files are not kept in a centralfiling area or file room. They are located allover the office.

• Every so often we have to turn theoffice upside down to find a document or file which seems to havedisappeared. (Actually, this happens more often than any of uswould like to admit.)

• We just can't ever seem to get ridof the large backlog of material thatneeds to be filed. It just piles up andpiles up.

• Our file room is jammed with files. Idon't know what's all in there. Someof the stuff hasn't been examined forfive or ten years.

• We have an old safe for wills andother essential documents in the office. I'm not sure if it's fireproof. Noone has ever checked.

• All our files are stored alphabetically.

• Filing is considered the least important administrative position in ourfirm.

• Basically, our firm's record retention plan is to ignore the situationand hope it will go away.

I

'"THE HEARING WASYESTERDAY.

THE JUDGE DISMISSEDYOUR CASE''"

'"TELL THE CLIENT TO WAITI WAS SUPPOSED TO FILE

HIS LIEN LAST WEEK-..<. - NOW I CAN'T FIND IT '"v

"WHAT DO YOU MEANTHIS IS THE

MOST RECENTCORRESPONDENCE FILE'"

,"'"OHNO'

THE WHOLE FILEHAS DISAPPEARED''"

'"WHA TDO YOU MEANOUR FIRM IS

RESPRESENTING~MR. HAROLD'

WE'RE ALREADY ••COMMITTED TO .'.

REPRESENT MRS. HAROLDIN THIS DIVORCE''"

132/Arkansas -Lawyer/July 1980

Basic Filing ProceduresThere are two fundamental file reten

tion principles which apply to all lawfirms regardless of size, degree ofspecialization, or nature of practice.Any firm which systemizes its filingprocedures in consideration of theseprinciples will operate at optimum efficiency and, as the firm grows, its filingsystem will expand with a minimum ofdifficulty.

• The law firm must recognize thevital nature of the firm's files andthe importance of the filing function.A file is the firm's record of the prog

ress of each matter handled for a client.Each instrument in regard to the matterhas been forged with care and precision. These documents should, therefore, be organized, preserved, and retrieved with the same degree of careand precision. Filing personnel shouldbe carefUlly trained to perform this veryimportant task for the firm and itsclients.

• Real control over the contentsof the firm's files can only beachieved through a centralizedfiling system.In such a system, all the client's files

are stored in, checked out of, and returned regularly to a central filing areaor file room. One person should be assigned primary responsibility for filingmaintenance and control. If the files arenot kept in one centra/location with oneperson primarily responsible for keeping them in good working order,the firmwill pay a penalty in lost files and misplaced documents. Such a situationcan create serious malpractice consequences.

In addition to the professional liabilitypotential, inadequate filing procedures

create logistical problems which costthe firm time and money. If a firm doesnot have a reliable central filing system,attorneys will keep their clients' files instacks on their desks (window sill,floor). When a secretary has difficultyfinding files in the attorney's office, thefiling of new material accumulates.One day, the attorney looks for adocument or file that "was just thereyesterday," and which now has "disappeared." Both the attorney and thesecretary spend a good part of the afternoon sorting through the office.They both become file clerks for awhile-an extremely expensivesideline for a busy professional. Whenfiles, used by more than one attorney,are not returned regularly to a centralfile room, the question of "who's got thefile" is a constant source of aggravation, wasted time, and unnecessary effort.

Organizing Your Filing System• A client file should be openedimmediately after the initial interview.The attorneys in the firm should

complete a new business memo eachtime a new client is interviewed andwhenever a continuing client retainsthe firm for a new matter. This newbusiness memo helps to remind theattorney to get all the information aboutevery case. It triggers important keyquestions about impending deadlinesand possible conflicts of interest. Mostimportant, it provides a written recordof what was discussed and agreedupon when the firm was first retained. Acopy of the memo should be sent to theclient to confirm the details of the representation. Another copy should beused to open the client's file. Thememo should be the first document inevery new file. The new business

memo is the first step in establishingclear, concise documentation of andfiles for each matter the firm handles.

• Every new client and every newmatter for an existing clientshould have a permanent identification number.Identifying the client by number

avoids the confusion and misfiling thatresults when the firm has clients withthe same or similar names. It is mucheasier to get client James Smith confused with client Jack Smith than it is toget client 119 confused with client 834.Indentifying each matter handled for aclient by number makes the folders andsubfolders for all matters easier tolabel, retrieve, and store.

• Each file should be subdividedas soon as it is opened.Each matter within the client file

should have an individual expandingfolder containing single manila foldersrelating to the different aspects of thecase. These subfolders should be prepared as soon as the file is opened.

Only the attorney involved in the matter can determine how a client's fileshould be structured. The firm can,however, have a standard policy as tohow certain common types of filesshould be subdivided. This arrangement can be pre-set in the types ofcases that the firm handles frequently.

If the firm does a lot of personal injurylitigation, it might decide that each newclient file should contain the followingindividual manila folders: a) Correspondence, b) Memos and Briefs, c)Pleadings, d) Statements, e) Photosand Exhibits, and f) Special Damages.When this type of case is accepted bythe firm, these standard manila folderscan be arranged immediately to be

Laurie H. Hutzler is lawyer, lecturer, author, consultant, video producer and activemember of various professional and business groups. She is author of the Attorneys' Malpractice Preventation Manual, and a frequent lecturer on the topic of lawoffice management and professional liability loss control. As president of LegalManagement Services, Inc., Ms. Hutzler specializes in providing programs, pUblications and videotapes to corporations, government agencies and trade associationson law related topics.

Ms. Hutzler's background combines commercial script writing experience with a J.D.degree from New York Law School and administrative experience in corporate lawdepartments. She is a delegate to the White House conference on Small Business,Chainnan of the Videotape Committee of the Economics of Law Practice Section ofthe American Bar Association, Government Relations Liason for the InformationFilm Producers of America New York Chapter, a member of the Steering Committeeof the Communication Industry Council of the New York Chamber of Commerce, amember of the International Council on Small Business and the National Federationof Small Business.

July 1980/Arkansas Lawyer/l33

ready to receive material as it accumulates.

• Each file should be organizedso that documents are easy tofind.A client's file is the complete record

of the progress of a matter. It shouldcontain one copy of all correspondence, notes briefs, memos, drafts,and other material prepared for or received on the client's behalf.

The contents of the file should bearranged in descending chronologicalorder (letter dated 4/4/77, letter dated3/3/75, letter dated 7/1/74, etc.), withthe most recent material filed on top.

If duplicates are to be kept in the file,they should be placed in a separatefolder labeled "Duplicates," otherwise,extra copies should always be discarded. The firm should use carbon orNCR sets which include distinctivelycolored pre-punched paper for the filecopy (this makes duplicates easier toidentify and discard). Unnecessaryextra copies only clutter a file and makeit more difficult to locate important documents. If an extra copy is needed inthe future, it can always be photocopied at that time.

Drafts should also be kept in a separate folder marked "Drafts." Each draftshould be numbered and dated so thatonly one sample of each step in thedrafting series is retained.

If duplicates, extra drafts, paperclips, and legal pads are kept out of thefirm's files, their bulk can be reducedfrom thirty to fifty percent!

• Alt client files should be crossreferenced.A cross reference system is a card

file which indexes each matter that thefirm has handled by client name andadverse party name. It is a permanentrecord of all the firm's cases. It shouldprovide the only reference to the location of a file by client name. All othercontrols should be organized by number.

If only the client's name is known, it ispossible to check the client cross reference card to determine the client'snumber, the name of the adverse party,where the file is located, and how it iscataloged. The reverse can be obtained if only the adverse party isknown and the client's name is needed.

• Active and inactive files shouldbe stored separately.The failure to distinguish between

active, inactive, and dead files is one of134/Arkansas Lawyer/July 1980

the main causes of filing control problems, crowded files, and filing errors.Active files concern ongoing, presentmatters. Inactive files are those in suspended animation oron hold (i.e.,litigation files awaiting the appeal period tolapse). Dead files are those of settled,completed or aborted matters.

Many law firms keep, within their active files, ones which have received noattention for the last five or ten years.There is no reason to keep these filesas costly, useless tenants in regularlyused office space.

During the first twelve months after acase or matter is closed, the file shouldbe located in a separate area within oroutside the file room which is reservedfor inactive files. The file is still accessible, but it is out of the way of currentfiles which must be used regularly. Thisseparation of files involves less chancefor misfiling.

When all the work on a file for annon-continuing client is completed, thefrequency of its being requested deminishes until at the end of twelvemonths there is a less than one percentchance that it will ever be neededagain. After the tweive month periodhas elapsed, the file can leave the holding area and can safely be transferredto a storage area either within the officeor in a warehouse.

Microfilming is another possiblemethod of dealing with closed files. Inthe past few years, the cost of microfilming has decreased to the pointwhere many firms consider it to be aviable alternative to warehousing.

• Most retention problems can besolved by a file retentionschedule.A file retention schedule outlines the

types of files and documents within thefirm's various areas of practice, andhow these files should be stripped,stored, and destroyed.

The schedule lists: a) all the types ofgeneral cases that the firm handles, b)what will activate the closing of files, c)what papers may be returned to theclient, d) what papers may safely bedestroyed, e) how long the file shouldbe retained in the holding area and inthe storage area, f) what materialshould be retained indefinitely, g) whatmaterial, if any, is a matter of publicrecord.

It should be formulated in accordance with: the specific requirementsof the firm and the nature of its practice,statutory requirements, regulations oflocal, state, and federal governmentagencies, the availability of copies in

the public record, and the nature andfrequency of storage reference.

• Every time a file is taken fromthe file room, a file removal formshould be prepared.Even if the file is only removed "for a

few minutes" there should still be aform on its removal. "A few minutes"have a way of becoming a few days,and by that time, someone else needsthe file and it cannot be located. Thisform lists the file title, file number, thename of the person using the file, thedate of its removal, and the date of itsreturn.

• Whenever an item is removedfrom a file any reason, a document removal memo must becompleted.Even if you intend to replace the item

tomorrow, someone else may need thefile today and you may not be around toindicate that an important document ismissing. Consequently, a decisionmight be made that was based on inadequate information-a situation thatmay invite disaster.

SummaryIn summary, the law firm must

recognize the vital nature of the firm'sfiles and the importance of having acentralized filing system.

One person should be assignedprimary responsibility for maintainingthe file system, but every person in thefirm should be well-acquainted with thesystem and be able to retrieve materials when necessary.

Client files should be organized by asystem of assigned numbers to avoidconfusing clients with similar names.These assigned numbers must becross referenced by client and adverseparty. This cross reference systemserves the function of locating clientfiles and providing a double-check onpossible conflicts of interest.

Overall, the most important step increating an efficient filing system is tostandardize procedures so that staffpersonnel can automatically set upnew case files and strip and move inactive files to a holding area withoutconstant supervision by the attorneysin the firm. The new business memothe cross reference cards, file removalform, and the document removalmemo will ensure that you have standardized information handling and processing for every client. f......

Our company representative WIll be happy to VISit with you In person

COURTS 0LAWYERS 0

TRUST OFFICERS 0ADMINISTRATORS 0

EXECUTORS 0

NO CHARGE TO THE ESTATEWORLDWIDE SERVICE FOR:

- Have youaccounted for

all the heirs?MISSING and UNKNOWN HEIRS LOCATED.

research services international,inc.world-wide probale r....rch

SUITE 1410 BROADWAY TOWER BUILDING. ENID. OKLA. 7370'

P.O. BOX 3851

CALL TOLL FREE 1-800-654-0356OKLA. (CALL COLLECT) 405-233-1320

~~.~51


MEMBERS OF THE CLUBThere is a fraternal quality to the

practice of law that you begin to senseeven in law school. Members of thebrotherhood of the bar share commoninterests and experiences, even whentheir practices vary immensely. Consequently, there is almost always an airof congeniality and easy familiarityamong lawyers when they get together, whether its slapping backs atthe Annual Meeting in Hot Springs orswapping yarns on docket day inYellville.

This shared altitude also influencesthe way law is practiced. With the exception of some towns where the bar isfactionalized (usually along family, social and/or political lines), the practicein Arkansas appears to be characterized by camaraderie and cooperation. Depositions are set by agreement,not notice, and extensions of time toplead are granted by a handshake,without a court order.

This clubby atmosphere has, in thepast, been further reinforced by twoother common characteristics: theoverwhelming majority of Arkansaslawyers have been (and still are) maleand white. While the bar is somewhatmore integrated, by race and gender,than medicine and dentistry, it is ofsome significance that the ExecutiveCouncil of the Arkansas Bar Association remains all-white, all-male. (Lestwe feel too self-conscious, the American Bar Association, regarded asperhaps more progressive than the barat large, is in the same situation.)

NOTHING NEW. ..Of course, there have been female

lawyers and black lawyers for overthirty years. However, they have remained largely outside the club, forseveral reasons. Black lawyers havehad an almost exclusively black clientele, which has resulted in largely personal practices, as opposed to business, insurance, tax or regulatory136/Arkansas Lawyer/July 1980

CONTEXTBy W. Christopher Barrier

work. Female lawyers have handled adisproportionate share of domestic relations cases and other family-relatedwork. As a result, the contacts of bothwith other lawyers have been limited,and their membership in the fraternityhas been on a different level than thatof their white, male counterparts.

Trends of the last twenty yearsseemed to reinforce these divisions.Female law school attendance actuallydropped nation-wide in the 50's andearly 60's. (One national law schoolgraduated a class exclusively whiteand exclusively male as late as 1967.In 1970, only 2.8% of Americanlawyers were women.) And JohnWalker's integrated law firm broke upseveral years ago.

STATISTICS AND IMPRESSIONS...However, the statistics seem to indi

cate otherwise (as do my own subjective observations). Female enrollmentat UALR's law school has, in some recent classes, exceeded 50%, and nationally, it's at 30%. Virtually all of theolder, larger firms in Pulaski Countyhave female associates, as do firms inalmost all the state's larger cities.

(The higher incidence of hiring offemales in Little Rock is probably dueless to what the Gazette occasionallyrefers to as "the civilizing influence ofcentral Arkansas" than to more prosaicfactors: The Little Rock firms have thechance to hire females as law clerks,one of the better roads to a permanentjob. And many of the female studentsalready live in the area-they apply toLittle Rock firms first. In fact, my recollection is that an established firm in atleast one other Arkansas town, probably Batesville, beat Little Rock's firms inthis respect.)

WHO HAS CHANGED? ..Subjectively, my impression is that

female lawyers themselves havechanged considerably in the last

twenty years. Female lawyers in Arkansas in the 60's were likely to be solopractitioners, unmarried, with heavydomestic relations practices (usuallyrepresenting wives), with offices notlocated in larger, newer office buildings. They also tended to be somewhatcombative-plainly they couldn't bemembers of the club, so they didn'teven try.

Female lawyers in 1980, on the otherhand, tend to share characteristics withtheir male counterparts. They've goneto the same schools. Like the males, ahigher percentage of them have lawyerfathers. And although it is undeniablystill harder for females to get jobs (theydo have to have better grades, etc., toget the same jobs), law firms are beginning to look for the same things infemale and male applicants: intelligence. a strong academic record,poise, attractiveness, personality,good connections, and/or experience.

In Arkansas, female law graduatestend to be a little older than their malecounterparts, largely because UALRenrolls a higher number of women whoare going back to law school-afterraising children, putting husbandsthrough school, getting divorced, etc.(The age factor and perhaps strongermotivation may account for the fact thatthese women also make bettergrades.)

PLEASE! NO DIVORCE WORK! . ..These new female graduates appear

to be avoiding domestic relations workand the shriller, tougher image of theirpredecessors. They seem to be handling the full range of practice, from taxto titles, although insurance defensework is apparently still a male domain.If few have become partners in majorfirms, few have been out of school longenough to do so. Time will tell whetherelevation will be slower, (although several New York firms have faced EEOC

"Colonel, you do remember telling us to hire this year's toplaw graduate as an associate to work with you, don't you? .. "


charges in this regard). I would guessnot.

The changes In the image and substance of female lawyers-frommaverick to middle-of-the-road-havebeen due to internal and external influences. Thirty years ago it took tough,strong-willed women to compete withmen, in law school and in practice,knowing club membership was notopen. Hence, the women who went tolaw school then were different fromtheir contemporaries training to benurses, teachers or stewardesses.

INTO THE MAINSTREAM...Now, women are more career

minded generally, and there is greaterpublic acceptance of two careerfamilies. (Fortune magazine projects asharp escalation of the trend In the80's.) Hence, female law students tendto be more representative and mainstream. And there are simply morewomen lawyers-10% in 1979.

Furthermore, at least partially as aresult of the woman's movement andthe higher Incidence of male lawyerswhose wives work, male attitudes havechanged. According to one lawyer at amajor firm. their first female associatewas hired after a discussion of the list ofdesirable characteristics notedabove--and no mention of gender or ofclient reaction. Their next female associate was hired from a field of threesummer law clerks-two male--afterthe same discussion, and no mentionof "too many female lawyers".

WHAT'S IT REALLY LIKE? ..But, what's it like to be a female lawyerin 1980 in Arkansas? There are stilloffice jokes to grin and bear, and occasional gaffes. For example, severalyears ago, Hillary Rodham (lawyer,teacher, wife and mother) addressedthe House of Delegates of the Arkansas Bar Association, seeking funds forthe Legal Clinic at the FayetteVille lawschool. An opponent began his remarks by saying he would be for theproposal "if its merits matched thecharm and beauty of its advocate". Toher credit, Ms. Rodham smiled andwent on answering questions. To theircredit, the delegates groaned audiblyat the inappropriateness of the remark.

Then, too, at a bankruptcy hearing inLittle Rock several weeks ago, a malelawyer for a creditor persisted in referring to debtor's counsel as "the ladylawyer", rather than by name. And, afemale graduate who recently went intopractice with her father in a smallnortheast Arkansas town was shocked

by his candid revelation that, if she hadnot been his own daughter, he wouldnot have even thought about hiring afemaie.

EXCEPTIONS, NOT THE RULE...However, an informal poll of recent

female graduates indicates that theselapses represent the exceptions ratherthan the rule. When calling anotherlawyer who doesn't know you, saysone, be prepared to identify yourself as"a lawyer with the Fidget firm" to avoidthe assumption you are a secretary calling for a lawyer. Apparently, olderjudges tend to be a little patronizing.Otherwise, lawyers and judges seemto have taken the growing number offemale lawyers in stride.

When job-hunting, says another, beprepared for discreet questions aboutthe likelihood of husband being transferred and plans for children. The samelawyer has also concluded that maleand female applicants with equal qualIfications do compete equally in dealing with established firms-if bothhave strong records. The crunchcomes with the average student. Malelawyers simply seem more inclined to

take a chance on the average malestudent with otherwise appealing qualities while females have to be strong inall areas to get hired.

Client attitudes are more complex.Corporate clients, especially banks,are used to quotas, etc., and acceptfemale lawyers. Some clients don't, butsome actually prefer women lawyers.In any event, says one female in general practice, humor, self-assuranceand candor are the best ways to relieveclient uneasiness. The trick is to reconcile flexibility and dignity, and it's notalways easy.

BLACK IS DIFFERENT...As they have already noticed, being

a black lawyer is different, also forvared reasons. In terms of getting intoand out of law school and into a job,blacks start out with several strikesagainst them. Most lawyers start frommiddle class backgrounds. There issimply a much smaller black middleciass. And blacks now graduating havea significantly reduced chance of having a lawyer parent.

o

THE LAWYERS CO-OPERATIVE PUBLISHING co.Aqueduct BUildingRochester. New York 14694

The Total Client·ServiceUbrary® System. More than justlawbooks: A Complete LegalResearch System.

"war stories" with black lawyersaround the courthouse (maybe morethan they do with white femalelawyers). There is even some status inhaVing female associates and vigorouscompetition for the best ones. Thisphenomenon has made the tough,divorce-handling loner among womenlawyers an anachronism. However, it ismy perception that a number of themore experienced "lady lawyers" welcome the new attitudes wholeheartedly and the resultant chance tolet down their own guards a little.

The broadening of membership hascertainly not reduced the club's conviviality or sense of cooperation.Lawyers are even discovering thatfemale associates can laugh at lockerroom jokes and hardly ever blush. Atany1hing.

However, perhaps we should notconsider ourselves truly open untilthere are more black lawyers active inthe Arkansas Bar Association than inthe black lawyers association, and theArkansas Association of WomenLawyers has trouble remembering whyit was founded in the first place.~,

The TCSl System was developed by LawyersCo-op to fit the way toaay's Arkansas attorneyspractice low. No matter how or where you beginyour case research. special TCSL features automatically bring all other facets of the particularlegal problem to your attention.

For information on "The TCSL System"for Arkansas, contact your nearestLCP Representative:Northeast ArkansasJim Tector (501) 378-7038-5eNice

(501) 753-9123Southwest ArkansasCharles R. (8ob) lloyd (318) 222-3651CriHenden " Mississippi CountiesLorry Dacus (901) 794-5253

OLD CLUB, NEW RULES...Membership in the club is opening

up though. White male lawyers trade

THE BOTTOM LINE...The bottom line for black graduates

is still the same as for white femalesyou must be strong in every respect toeven be considered. And, even then,being black is much tougher, judgingfrom the numbers. Presumably, withthe first black having been hired bywhat Bucky Ellis refers to as an "oldline, legal reserve law firm", others willfollow suit. However, judging from lawschool grades and bar exam results,blacks are still not as well-prepared forlaw school as whites. (If legal education and testing have a bias, it ismiddle-class, not racial, but the result issimilar.) Hence, for sociological andeconomic reasons far too vast to beconsidered here, we should not expectto see a massive influx of black associates into white firms.

determine whether it stems from raceor age. And plainly, the personaldynamics vary considerably with thesize and location of the community.

And those lawyer parents will usuallypractice in one or both of two areaspersonal and civil rights. Little generalbusiness practice. Hence, even a blacklawyer with some experience has littlechance of making a lateral move intoan established firm (and not just in Arkansas).

FACTS OF LIFE...As a fact of life, law schools in Arkan

sas have more white female studentsthan blacks of either sex, and a much,much higher proportion of the whitefemales get jobs in private practice withestablished firms.

Government (state as well as federal) has helped break some ground inhiring, both of blacks and females.Federal judges, notably G. ThomasEisele, have been willing to hire blacksand females as clerks, giving themmarketable experience beyond formaleducation.

INTEGRATED FIRMS...There are now several integrated

civil rights law firms and one small integrated firm with a general, personalclientele (largely black, however). And,one major Little Rock firm has a blackassociate who is expected to follow anormal course of training, eventuallyspecializing in insurance defense,labor, business or similar area of thefirm's practice. Black secretaries arescarce, but increasingly common.

But, getting such a job is still tough,especially with the growing number oflaw graduates. Several major firms inLittle Rock and most over the state report that they have never had a singleblack applicant-apparently, the assumption is rejection. And, unlike thegiant New York firms, Arkansas firmsare still small enough that forcing yourway in with an EEOC charge isunattractive-you would have to practice with the people you sued.

GROWING ACCEPTANCE•..However, once in practice-even

solo or civil rights-there seems to be agrowing acceptance of the black practitioner. Overt slights have subsided onthe part of lawyers and judges. (To putthe matter in perspective, barely twentyyears ago a Pulaski County chancellorannounced from the bench that hewas disregarding a man's testimonybecause he was "just a nigger".)

Some patronizing by older lawyersand judges lingers, but it is difficult to138/Arkansas lawyer/July 1980

'.


LEGAL ECONOMICSBy: Mary Ann Altman

@1980 Altman & Weil, Inc.Ardmore, Pennsylvania

A TIMETABLE FOR AN OFFICE RELOCATIONMost of the pressures before, and

regrets following, any law office relocation are caused by the failure to planwithin a proper timetable. A relocationtimetable should provide a law firm withsufficient time for careful analysis ofsystems, growth patterns, and futureequipment decisions, to allow thoughtful planning and attention to details.Without these elements, furniture maynot be in place on the day of the move,accounting facilities may not be provided with the necessary wiring orventilation for computerized equipment, or the telephone equipment maynot fit in the room provided for it. Mostserious of all, growth requirementsmay not have received proper consideration, and this inadequate planning may cause continuing construction or additional renovations afterthe initial move to new space.

A suggested timetable for the majordecisions which should be made by amedium-sized law firm, which is moving to existing office space in anotherbuilding follows. The checklist mayvary for those firms trying to renovatespace which they occupy or for thosewhich are preparing to build their ownbuilding. Larger firms will find that moretime will have to be allocated betweenthe first and second steps, and smallerfirms may be able to speed up the entire process somewhat. If at all possible, however, one full year should beallowed for the planning process, evenin the four or five lawyer firm.

STEP ONE-12 MONTHS PRIOR TOMOVING DATE

1. The firm must first determinehow much space it will requireduring the initial occupancyterm and during any future option terms. To do this, pastgrowth and current growthtrends must be evaluated andintelligent projections must be


made. Only with the most accurate growth projections can afirm be reasonably assured thatit will not be faced with additional construction, or that it willnot be out of expansion spaceimmediately after it moves in.

2. In addition to projecting existingkinds of personnel growth, possible future use of word processing/computer equipment,file expansion, library growth,expansion in new kinds of support personnel (paralegals, office managers, etc.) must beconsidered and included in thefinal growth projections.

3. Using the growth projection, thefirm should attempt to locateadequate space in a desirableoffice building at an affordablerental rate. An initial generalcommitment should be secured. The firm should receive athorough explanation of the wayin which the proposed landlordcomputes the amount of "usable" space he is offering to thelaw firm.

4. The firm should consideremploying a space expert orconsultant to assist in planning,unless one of the lawyers is experienced in this specializedarea and has the time to sparefrom his/her practice over thenext twelve months.

5. The costs of renovation shouldthen be estimated. These costsmay range from that required fora new coat of paint and newcarpet, to complete gutting ofthe space and construction ofnew partitions, ceilings, and theredecoration of the offices.

Costs for office renovationsmay range from $20 to $55 persquare foot, mainly dependingon the amount of heating, ventilating, and air conditioningwork required.

6. Negotiations with the landlordmust include how much of thecosts of construction will beborne by him. Actually, the tenant will be paying for all renovation costs over the term of thelease, but having the landlordpick up the payments initiallyand amortize them in the rentalfigure will ease the initial financial burden on the firm.

7. A complete, accurate copy of allpermanent partitions, pipes,water sources, columns, andthe like must be secured. If thelandlord cannot furnish such adrawing, hire an engineer or anarchitect to prepare one.

8. A maximum, reasonable budgetfor the moving project must beadopted, and available financing methods investigated.

STEP TWQ-11 MONTHS PRIORTO MOVING DATE

1. If it is anticipated that the planned expansion space will needto be occupied by subtenants,begin a search for subtenants.

2. Analyze individual office sizerequirements, clerical spaceneeds, and special room requirements, i.e., lunch rooms,file storage areas, conferencerooms, etc.

3. Determine the style which theoffices shOUld project to visitors,i.e., "first class," or a reasona-

bly attractive functional officescheme.

4. Review all current office systems for handling: (a) files, (b)word processing and office typing, (c) accounting, (d) timekeeping and billing, and (e)telephone, to determinewhether future changes in theseareas will be required andshould be considered in theplanning of the space. It isimportant that space not beplanned to house old closedfiles and that other office systems be reviewed and updatedso that the layout which is designated meets work flowrequirements of the practice.

5. Finalize a program for development, including all features the firm would like to havein the final layout, realizing thatsome of these features mayhave to be changed or cut because of budget or space limitations.

STEP THREE-9 MONTHSPRIOR TO MOVE

1. Begin to develop, or have anoutside specialist develop,schematic layout drawings forthe space. These layoutsshould take into considerationall major portions of the program developed in Steps Oneand Two.

2. By this time arrangements withthe landlord should be finalizedand final lease agreementssigned, including all tenantspecifications and allocations ofconstruction costs between thetenant and the landlord.

3. Review in more detail the projected costs for the total renovation package and begin to cutout items as needed to meet thebudget.

4. Between Step Three and Four,refinements in the schematiclayouts will take place.

STEP FOUR~ MONTHS PRIORTO MOVE

1. Agree on final layouts for spaceand plans for: (a) heating, ventilating, and air conditioning, (b)electrical outlets, (c) telephoneoutlets, (d) furniture locations,(e) ceiling lighting locations, and

(I) specific details in such areasas library, kitchen facilities, etc.

2. Begin sending initial furnitureorders to vendors to assure delivery in time for the move. Arrange for storage locally for anyfurniture received prior to themoving date. (Note: some vendors require even more advance notice.)

3. Notify the phone company ofthe planned move and get costestimates for movement of telephone equipment and instruments.

4. If necessary, have engineeringdrawings done, architecturalconstruction drawings prepared, and construction specifications developed by an architect. In some cases a trustedcontractor can do these himself,but it is wise to provide a systemof checks and balances throughthe use of an independent architect.

5. Send final sets of plans to contractors for construction bids orestimates.

STEP FIVE-S MONTHS PRIORTO MOVE

1. Receive bids and negotiate withcontractor.

2. Review the budget again.

3. Finalize carpet orders and besure that orders for specialbuilding materials or finishes,which may take a long time, aresent.

4. Order window coverings ordrapes.

5. Be sure that all furniture ordershave been placed and acknowledged with expected deliverydates.

STEP SIX-3 MONTHS PRIORTO MOVE

1. Begin to clean out office itemswhich should not be moved.

2. Select, hire and schedule moving company; get estimate ofcost for moving.

3. Check and revise budget again.4. Arrange for disposal of furniture

and equipment not beingmoved. Some can be sold ortraded in, some may be given tocharities and some will have tobe junked..

5. Begin preparation of change ofaddress announcements.

STEP SEVEN-1 MONTH PRIORTO MOVE

1. Plan for moving "teams" ofemployees. This will limit thenumber of persons on the floorat the time of the move. Nonteam members should arriveonly after the movers have left.

2. Recheck with moving companyon packing requirements, timesfor moving, crews to be assigned, methods for markingfurniture to be relocated, etc.

3. Schedule bUilding elevators toassure speedy service duringthe move. Also, be sure all itemsto be moved in will fit in or on thefreight elevators.

4. Recheck with phone companyon moving commitment to assure prompt moving of phoneequipment and non-interruptionof service. See whether concurrent service in your new andold locations can be set up onmoving day.

5. Engage cleaning crew to remove packing and clean updamage after the move, ifneeded.

6. Engage security guards towatch furniture and equipmentwhile it is sitting outside the newbuilding waiting to be moved in,if necessary.

7. Arrange for excess moving insurance, if needed.

8. Order change of addressnotices from a printer.

STEP EIGHT-1 WEEK PRIOR TOMOVING DAY

1. Mail change of address noticesto insurance companies, banks,regular vendors of supplies,books and magazines; send outclient announcements.

2. Review all plans with movingteams and moving companyrepresentatives.

If these general guideline dates andsteps are followed, a law firm's movingday should be relatively routine. Fridayevening is a favorite time to begin amove, since it gives a firm two days formoving and clean-up, enabling a firm toopen for business on Monday morningwith the least interruption of services.

Good luck........


In memoriamHe that keepeth the law, happy is he.

Proverbs 29:18

Henry B. MeansFormer Circuit Judge Henry B. Means, Jr. aged 50, of

Malvern, died Tuesday, January 15, 1980.He retired January 1, 1979, after serving 20 years as

circuit judge, a position once held by his father. After servingas prosecuting attomey for four years, Mr. Means won hisfirst judicial term in 1959, and never drew an opponent afterthat race.

Mr. Means was born at Malvem and practiced law there.He was a World War II veteran, a trustee of First Presby1e·rian Church, a member of the Board of Directors of FirstFederal SaVings and Loan of Hot Springs County, a Masonand a member of the Arkansas Bar Association.

Survivors include his wife, Mrs. Mary D. Brady Means, ason, a daughter two brothers, two sisters and live grandchildren.

Frank H. Cox, Sr.Little Rock lawyer Frank Holmes Cox, Sr., aged 64, died

January 29, 1980.He had been in private law practice since 1951 and was a

former chairman of the Uttle Rock Planning Commission.He also was attomey for the Little Rock Sewer Committee.

Mr. Cox was the son of James Frank and Mary AlicePerkins Cox. He graduated from Uttte Rock Junior Collegeand received a law degree in 1937 from the Arkansas LawSchool. He was assistant librarian of the Arkansas SupremeCourt from 1937 to 1940 and was deputy court clerk from1940 to 1942. He served in the Army infantry from 1942 to1946, and was discharged as a captain. From 1946 to 1951he was an assistant city attomey at Little Rock.

He taught municipal law at the Arkansas Law School from1950 to 1960. Mr. Cox served on the Little Rock PlanningCommission from 1960 to 1969 and was chairman from1964 to 1966.

He was a member of the Arkansas Bar Association, theAmerican Bar Association and the Country Club of UttleRock, and was a 32d-degree Mason and a member of theScimitar Shrine Temple. Mr. Cox was a charter member of

142iArkansas LawyeriJuly 1980

the St. Mark's Episcopal Church and was a sunday schoolteacher, clerk of the vestry, lay reader, president of theMarkmen men's group and a delegate to the Diocesan convention.

Survivors are his wife, Mrs. Virginia Bethell Cox, a sonFrank H. Cox, Jr. of Little Rock; a daughter Mrs. Mary KeattsCox McKinney of Little Rock; a sister Mrs. A. T. McMillin ofHot Springs, and two grandchildren.

Wayne W. OwenWayne Wray Owen, aged 71, of Uttte Rock, died January

20,1980.Mr. Owen had practiced law 43 years before his retire

ment. He was recognized as an ou1standing trial lawyer,specializing in personal injury, wage and hour, and landcondemnation cases. Bom in Conway, Mr. Owen was theson of the late William Blackstone and OJie Ellen WrayOwen. He attended Arkansas State Teachers Collegewhere he was quarterback of the football team, and theUniversity of Missouri School of Law, and was admitted topractice law in both Arkansas and Missouri.

During his career, Mr. Owen helped train many younglawyers, including state Senator Max Howell, Dale Price,Judge Dean Morley, Jack Young, Jim Rhodes and federalBankruptcy Referee Charles Baker.

Mr. Owen was a member of the Pulaski County andAmerican Bar Associations and was a Fellow in the Arkansas Bar Foundation. He was also a member of the AccaciaFratemity, Newark Masonic Lodge 248, Cathedral MasonicLodge 757, the Arkansas Consistory and the ScimitarShrine Temple. He received a 50 year Masonic membershippen in December 1979. He was a pilot instructor duringWorld War II and was a member of the Quiet Birdmen, anassociation of pilots.

He is survived by two sons, William Leonard Owen andPaul Erwin Owen of Uttle Rock; a sister, Mrs. Dorothy MaeAoyd of Conway; three brothers, Hugh Owen of Malvernand G. Edd Owen and W. B. Owen Jr. of Conway, and agranddaughter.

David W. PeelDavid W. Peel, a longtime Bentonville resident, died De

cember 29, at the age 01 88.Mr. Peel was an attorney, politician and civic leader. He

served four terms as mayor 01 Bentonville.Mr. Peel spent lour years in Little Rock where he or

ganized and started the State Worker's CompensationCommission. He served on the wellare board lor manyyears, and is credited with the lounding 01 the AmericanLegion Club in Bentonville in 1919 and the Rotary Club.

Russell C. RobertsFormer Circuit Judge Russell C. Roberts, aged 69, 01

Conway, died January 17, 1980.Judge Roberts, who was born in a log cabin near Enola (in

Faulkner County) on April 5, 1910, was known statewideduring his 12 years as circuit judge 01 the old Filth JudicialDistrict for being a quite colorful personality. Judge Robertsopened a law practice in Conway in 1934, and later waselected to the State House 01 Representatives. In 1966, hewas appointed to the second judgeship in the Filth District byGovernor Orval E. Faubus. Two years later, when the interim appointment was up, Judge Roberts ran and waselected. He served continuously until he retired in 1978,when his health began to decline.

He is survived by his wife, Violet lee Trotten Rogers, ason, two daughters, and eight grandchildren.

Verlln Edward UptonFormer Rector City Attorney Verlin Edward Upton, 85,

died Tuesday, March 11, at Community Methodist Hospitalin ParagoUld.

He was a native 01 Philippi, West Virginia, and came toArkansas in 1924. Mr. Upton practiced law lor one year inParagould belore coming to Rector in 1925. He was thedeputy prosecuting attorney Irom 1939 to 1942 and servedas city attorney 01 Rector from 1926 to 1971. He also actedas local counsel lor the Cotton Belt Railroad, ARK-MoPower Company, The Bank 01 Rector and Central ClayDrainage District.

Mr. Upton was a member 01 the Methodist Church 01Rector. He was also a member 01 the American legion,Chamber of Commerce, Veterans 01 World War I, AmericanTrial lawyers Association, American Bar Association, Arkansas Bar Association, Northeast Arkansas Bar and theGreene and Clay County Bar Associations.

He is surviVed by a son, Verlin Upton, Jr. 01 Staten Island,N.Y.; a stepdaughter, Mrs. Neita Watson 01 Kerrville, Texas;a stepson, Jerry Stewart 01 Pensacola, Fla; 11 grandchildren, and 17 great-grandchildren.

James Roy CalhounJames Roy Calhoun, aged 80, 01 little Rock, died Sun

day, January 27, 1980.He was a retired lawyer who had worked lor the FBI and

the state Worker's Compensation Commission. He was amember 01 the Association 01 Retired FBI Agents and hadbeen a Mason lor 50 years. He was a member olthe PulaskiHeights United Methodist Church.

Survivors are his wile, Mrs. Alberta Young Calhoun andtwo sons, John Calhoun 01 Galesburg, III., and James Calhoun, Jr. 01 Norfork, Va.

Eugene Rolfe WarrenEugene Rolfe Warren, a prominent little Rock lawyer,

died at the age 01 69 on March 16, 1980.Mr. Warren was a lounder 01 Pulaski Bank and Trust

Company, and general counsel lor the Arkansas MedicalSociety and the Arkansas Education Association. He was anative 01 Forrest City, and an active participant in many ofthe state's most important legal battles during the last 25years. He drew national attention in the mid-1960's when hehelped the Education Association and a lormer Central HighSchool teacher challenge the constitutionality 01 the 1928state law which lorbid the teaching 01 the theory 01 evolutionin public schools.

Mr. Warren was born September 29, 1910 and was educated in Forrest City public SChools. In 1933, he graduatedwith a law degree Irom the University 01 Arkansas at FayetteVille. He practiced private law with the Robinson, Houseand Warren firm at little Rock belore entering the UnitedStates Navy in 1944 as a gunnery ollicer in World War II.

In 1946, Mr. Warren lormed a partnership with Carl E.Bailey, a lormer Arkansas governor, and in 1950 joined withBruce T. Bullion until he was elected a Pulaski CountyChancellor in 19n. He then became senior counsel with theCearley, Gitchel, Bogard, Mitchell and Bryant firm, a positionhe held at the time 01 his death. He was also attorney lor thestate Medical and Pharmacy Boards.

Mr. Warren was a member 01 the Arkansas Bar Association, American Bar Association and the American law Institute, the American Medical Association, Arkansas Education Association, the National Health lawyers Association,the American Society 01 law and Medicine, the NationalAssociation 01 Teacher Attorneys and the National Association on legal Problems 01 Education. He was first president01 the Arkansas Junior Bar Association and he served on theBoard 01 Directors at the Pulaski Bank and Trust Company.

Mr. Warren, a member 01 St. Mark's Episcopal Church,served during 1957 and 1958 as president 01 the EpiscopalChurchmen 01 Arkansas. His hobby was cultivating camellias, and he was past president 01 the Central ArkansasCamellia Society.

Mr. Warren is survived by his wile, Mrs. Betty Selph Warren; one daughter, a stepdaughter, and lour grandchildren.

"July 1980/Arkansas Lawyer/l43

~-----IIII

JURIS DICTUMBy: Jean Langford

Research Coordinator, Arkansas Judicial Department

The retirements of Chief JusticeCarleton Harris and Associate JusticeConley Byrd of the Arkansas SupremeCourt and C. R. Huie, Executive Secretary of the Arkansas Judicial Department, signal the passing of an erain the Arkansas Court system.

Chief Justice Carleton Harris, whoretired effective January 2, 1980, dueto ill health, had the longest tenure of achief justice in Arkansas history. Harris, who assumed the duties of ChiefJustice on January 1, 1957, servedtwenty-three years and, at the time ofhis retirement, was the senior chief justice in years of service among the 51chief justices on the courts of last resortthroughout the United States.

Chief Justice Harris, a native of PineBluff, received his law degree fromCumberland University at Lebanon,Tennessee, and was licensed to practice law in Arkansas in 1932. Harrisserved three terms as a State Representative from Jefferson County, oneterm as Prosecuting Attorney of the11 th Judicial Circuit, and eight years asChancery Judge of the 4th ChanceryCircuit, before his elevation to the Arkansas Supreme Court. A distinguished jurist, Chief Justice Harris hasbeen the recipient of numerous awardsand honors, but two of these deservespecial mention. In 1966, Harris waselected National Chairman of the Conference of Chief Justices, which iscomposed of the Chief Justices of the50 states and Puerto Rico. He hasbeen the only Justice from Arkansas toserve in that position. Chief JusticeHarris is the only judge to receive the"Outstanding Lawyer Award," givenhim by the Arkansas Bar Associationand Arkansas Bar Foundation in1973-1974.144/Arkansas Lawyer/July 1980

During Harris' tenure and under hisleadership as Chief Justice of the Arkansas Supreme Court, sweepingchanges have effected the ArkansasCourt system. In 1965, a partial unification of the Arkansas Court system occurred with the passage of Act 496 of1965. That Act designated the ChiefJustice as administrative head of theentire court system and the administrative director of the Arkansas JudicialDepartment, thereby increasing Harris'duties as Chief Justice. The work of theSupreme Court's Committee on JuryInstructions resulted in the publicationof AMI that year as well. In 1969, theSupreme Court created the Committeeon Professional Conduct to investigatealleged misconduct complaints againstArkansas attorneys.

The Supreme Court in its continuingconcern over assuring legalrepresentation of indigents promulgated Model Student Practice rules in1970 to allow supervised senior lawstudents to represent indigents (for nocompensation) in criminal and civilcases. 1971 saw the creation of theArkansas Criminal Code RevisionCommission. Criminal procedure rulesI and II for all courts in the state werepromulgated by the court to give precedence to criminal felony cases overother matters. The office of CriminalJustice Coordinator was establishedby the Supreme Court in 1973 to provide administrative and research reliefto the Supreme Court for all criminalpost-conviction relief proceedings before the court for consideration.

America's Bicentennial Year, 1976,was celebrated in Arkansas with thededication of the new Supreme Courtroom, providing the court with its first

"permanent" courtroom since 1957.Arkansas' new Criminal Code andRules of Criminal Procedure becameeffective on January 1 of that year as aresult of the efforts of the CriminalCode Revision Commission. As onemethod to deal with its growing workload, the Supreme Court began sittingin divisions in September of 1976. InDecember the Supreme Court established the Judicial Planning Committeeto engage in both long and short rangeplanning for improving the ArkansasJudicial system, marking the first attempt at formalized planning for the entire court system.

In 1978, Arkansas voters passedConstitutional Amendment 58 to provide for the establishment of the Courtof Appeals. Chief Justice Harris andthe Supreme Court, as well as others,were instrumental in notitying Arkansas' voters of the pressing need for thenew court to relieve the burgeoningcaseload of the Supreme Court. TheJudicial Ethics Committee and the Judicial Qualifications Commission wereestablished to investigate allegedmisconduct charges against ArkansasjUdges. In 1978 the Judicial PlanningCommittee established the Judicial Article Task Force to study the presentcourt system and prepare a proposedjudicial article for presentation to theState's Constitutional Convention.

In the final full year of Harris' service,1979, the Court of Appeals becameoperational. The Supreme Courtpromulgated RUle 29 outlining therespective jurisdictions of the SupremeCourt and Court of Appeals. Arkansas'new Rules of Civil Procedure withRules of Procedure for Appellate andInferior Courts were promulgated by

,

the Court. Arkansas Model Criminal Instructions were also published by theCourt's AMCI Committee to augmentthe 1976 Criminal Code. EffectiveJanuary 1 was the realignment of Arkansas' Judicial Circuits. For the firsttime in the history of the court system,Chancery Court Circuits are nowcoterminous with Judicial Court Circuits. The Supreme Court establishedthe Unauthorized Practice of LawCommittee this past year as well.

These significant accomplishmentsmay be attributed to the dedicatedcommitment of Chief Justice Harrisand his fellow members on the Supreme Court to the administration ofjustice in Arkansas. Harris' contributions to the people of Arkansasthroughout his career in public servicehave been outstanding and will notfade through the passage of time. Nofiner tribute can be paid to Chief JusticeHarris than that stated by his feliowjurist, Associate Justice Frank Holt,who called Harris' retirement after 23years "a distinct loss to the judiciaryand the people of Arkansas."

Associate Justice Conley Byrdserved thirteen years on the ArkansasSupreme Court before his retirementon January 2, 1980, due to ill health.Justice Byrd was born in Poughkeepsie, Arkansas, on January 14, 1925. In1943, Justice Byrd graduated fromPoughkeepsie High School as the Valedictorian of his class. Byrd served inthe U.S. Navy from 1943-1945, and attended Arkansas State College inJonesboro and Arkansas StateTeachers College in Conway followinghis military service. In 1950, he received his L.L.B. from the University ofArkansas School of Law, and was subsequently admitted to the practice oflaw in Arkansas. After practicing lawin Evening Shade for a year, Byrdmoved to Washington, D.C., and assumed a position in the Labor Department, followed by sometime with thecompany of Babcock and Wilcox.

In 1952 Byrd served as Assistant Attorney for the Revenue Departmentunder Governor Sid McMath and thenset up practice in Pine Bluff. From 1954to 1960, he served as Reporter for theArkansas Supreme Court. Byrd thenresumed his law practice and in 1963accepted the position of Law Clerk tothe late Gordon Young, Federai DistrictCourt JUdge. FollOWing his clerkingservice, he set up practice in Little Rock

with partners William R. Butler andOmar Greene. In 1966, Byrd ran for aposition on the Arkansas SupremeCourt, was elected, and began servingon January 1, 1967. Associate JusticeByrd served on the State-Federal Judicial Council in 1975 and 1976.

Justice Byrd is a member of theAmerican, Arkansas, and PulaskiCounty Bar Associations and has beenan active member of the Church ofChrist in Little Rock and Redfield. Heand his wife, the former Frances Hardinof Redfield, have four children. JusticeByrd's immediate plans on his retirement are to recuperate from the disabilities he suffers resulting from trafficaccident injuries which forced him totake disability retirement.

As Associate Justice John I. Purtlestated in his tribute to Justice Byrd,"Most people do not realize that he dissents more than any member of thecourt. Whether he dissents, concurs, orwrites the majority opinion, he does sobased solely upon his conviction andhis understanding of the law . . . Herepeatedly proved that he knew whathe was talking about when he enteredupon the discussion of a case ... Wewill indeed miss the service of an outstanding Justice."

Tributes were paid to Justices Harrisand Byrd and Executive SecretaryHuie at a special ceremony of the Arkansas Supreme Court on January 3,1980. The Supreme Court Justiceseach commented on the accomplishments and abilities of the three retirants. The January 3rd ceremony wasthe occasion of the swearing-in of Justice John A. Fogleman as Chief Justiceand Richard L. Mays and John F.Stroud, Jr., as Associate Justices.

Chief Justice Fogleman had previousiy served on the court for thirteenyears as Associate Justice. A native ofMarion, Arkansas, Chief JusticeFogieman is a graduate of the University of Arkansas and the University ofMemphis Law School (now MemphisState University). He has served asDeputy Circuit Court Clerk and DeputyProsecuting Attorney for CrittendenCounty and as a member of the StateBoard of Law Examiners, ArkansasJudiciary Commission, the ArkansasConstitutional Revision Study Commission (1968), and the ArkansasCriminal Code Revision Commission.

In addition, Chief Justice Foglemanhas served on the Executive Committee of the State Judicial Council and onthe State-Federal Judicial Council. Hehas also served as President of theArkansas Bar Association and as a fellow in the American College of TrialLawyers. Chief Justice Fogleman willserve in his appointed term until December 31, 1980.

Richard L. Mays was appointed tothe position on the court created by theretirement of Associate Justice ConleyByrd. A graduate of Howard Universityat Washington and the University ofArkansas Law School, Mays hasserved as a Deputy Prosecuting Attorney and two terms in the early 1970'sas a state representative. Justice Mayshas engaged in a private practice inLittle Rock, has worked as an Earl Warren Fellow with the NAACP Legal Defense Fund at New York and in the oldcivil rights firm of Walker, Kaplan andMays at Little Rock and once served asa special circuit judge. Justice Mays'contributions to community affairs include service with the Urban League ofGreater Little Rock, the Legal AidBureau of Central Arkansas, and theArkansas Council on Human Relations. Justice Mays, a lawyer with adeep commitment to the constitutionalissues of civil rights and equity, willmake an outstanding addition to theArkansas Supreme Court. JusticeMays will serve on the high court untilDecember 31, 1980.

The elevation of Associate JusticeJohn A. Fogleman to the position ofChief Justice left a second vacancy onthe Supreme Court. Appointed to servein ihat position until December 31,1980, is Texarkana attorney John F.Stroud, Jr. Justice Stroud, who grew upin Little Rock, received his bachelor'sand law degrees from the University ofArkansas at Fayetteville. Stroud is aformer City Attorney at Texarkana andspent 18 months on the staff of the lateUnited States Senator John L. McClellan. Engaged in private practice inTexarkana, Stroud has served asChairman of the Executive Council ofthe Arkansas Bar Association. He ispast president of the TexarkanaChamber of Commerce and RotaryClub and has engaged in numerouscivic activities. Justice Stroud has beencharacterized as a conservative, andwill be a stellar addition to the highestcourt in the state. f......


ARKANSAS BAR ASSOCIATION

82D ANNUAL MEETING

"LAW OFFICE ECONOMICSAND MANAGEMENT"

JUNE 4-7, 1980ARLINGTON HOTEL

HOT SPRINGS, ARKANSAS

PROGRAMCONCURRENT "ECONOMICS OF LAW PRACTICE" SEMINARS

SOME PROPOSED DISCUSSION TOPICS

1. EQUIPMENTAutomatic typewritersComputersCombining the aboveDictation

2. PERSONNELLegal assistantsWord processorsSecretariesTeam ConceptTraining

3. TIMEKEEPING AND BILLINGProcedures.Hourly rates v. fixed feeBilling for nonlawyersStatementsExpenses

4. FINANCIAL CONTROLSBudgetDistribution

5. SHARING PROFITSFormulasSubjective approach

6. WORK FLOW AND SYSTEMS

7. ASSOCIATESRecruitingTrainingCompensating

8. PARTNERSHIP OR P.A.

9. PLANNING FOR THE FUTUREGrowthRetirement

10. CALENDAR AND DOCKET

11. LIBRARY

12. ADVERTISING

13. INSURANCE

14. PHYSICAL PLANTOwn or leaseWork area v. office

15. QUALITY OF LIFE

DISCUSSION GROUP I(for solo practitioner, and members of smaller law firms-3 lawyers or fewer)

GROUP LEADER: JAMES E. BRILL-Editor, Texas Probate Systems; ABA Economics of Law Practice Section officer; twice recipient of Award of Merit from State Bar of Texas.

MODERATOR: SAMUEL S. SMITH-Chairman, ABA Economics of Law Practice Section; Managing Officer, Miami Beach law firm; Past Chairman, Florida Bar's Economics of LawPractice Committee

PANELISTS: WILLIAM I. PREWETIJAMES D. CYPERT ArkansasWILLIAM S. ARNOLD Practitioners

GROUP LEADER:

MODERATOR:

PANELISTS:

DISCUSSION GROUP II(for members of larger law firms- 4 lawyers or more)

ALBERT L. MOSES-Noted legal author and lecturer on management practicesand office equipment; Chairman, Committee on Word Processing, ABA Economicsof Law Practice Section.RICHARD A. WILLIAMS-First Chairman, ABA Economics of Law Practice Section; Editor of Legal Economics; frequent lecturer at tax institutes.JOHN G. L1LE, IIIPHILIP K. LYON ArkansasJAMES E. WEST Practitioners

IMPORTANT: Attend the Discussion Group of your interest. Come to find solutions to the problems "nagging" you at the office.Be prepared to ask "the experts" related questions.

ALSO

"ARKANSAS LAW OFFICE MANUAL" by Author Fran Shellenberger, regular Legal Economics columnist for TheArkansas Lawyer and other legal publications.This fine handbook-published in April, 1980 as a part of the continuingsystems effort of the Arkansas Bar Association-will be made available to registrants for $15 (cost). Otherwise, the price will be$30. The author will discuss the use of the manual.

Little Rock lawyer George Plastiras will discuss "Professional Incorporation, Retirement Plans, and Trends TowardsPartnership of Professional Corporations".

Author Ralph G. Brodie of "The Uitimate Law Office TM" series that adapts MIL systems to display word processingequipment, will talk on "Into the Computer Age with the 'Total System' for Document Production-MIL Word Processing."

Dean Emeritus Robert A. Leflar will review the "New Arkansas Constitution."July 1980/Arkansas Lawyer/147

QUESTIONS AND ANSWERS

ABOUT THE PERFORMANCE OF MUSIC

UNDER THE NEW COPYRIGHT LAW

by Jack C. Goldstein

INTRODUCTION

After more than twenty years ofstudy, public hearings, and debate,' anew federal copyright law was enactedin 1976' and became effective on January 1, 1978.' The 1976 Act was thefirst general revision of the UnitedStates copyright law since the Copyright Act of 1909.' Long before it wassuperseded, the 1909 Act had becomeoutmoded as a result of numeroustechnological advances which had hada profound impact upon various classes of copyrighted works, includingmusical compositions.

Many developments and refinements-such as those in therecording, jukebox, radio, and television industries-had spawned vastnew enterprises which not only thrivedon the use of copyrighted music butalso shifted the songwriter's economicinterests. Even before 1976, royaltiesbased upon the public performanceof music had become the majorsource of income for the songwriter;' royalties on recordings hadremained limited because of statutorycompulsory licensing at 2 cents perrecording;' and royalties on the sale ofsheet music had dwindled with the decline of the sheet music industry.'

The nondramatic performing rightsin essentially all copyrighted musichave been in the past, and are today,licensed in the United States throughthree organizations, each of which offers a different collection of music. Theoldest of these licensing organizations,the American Society of Composers,Authors & Publishers, known by theacronym "ASCAP," was formed in1914. Broadcast Music, Inc., known byits initials, "BMI," was not formed until1939-40 but is today the largest of thethree licensing organizations, at leastinsofar as the popularity of its repertoire is concerned. BMI and ASCAPare nonprofit organizations in that all ofthe license fees which they receive,less operating expenses and reserve,148/Arkansas Lawyer/July 1980

are distributed to affiliated songwritersand music publishers. The thirdorganization, SESAC, Inc., formerlythe Society of European Stage Authors& Composers, licenses a smaller, morespecialized collection of music compared with the collections licensed byeither BMI or ASCAP. The copyrightstatute expressly recognizes ASCAP,BMI, and SESAC as organizationswhich license the nondramatic pUblicperformance of musical works.'

Since BMI's and ASCAP's vastrepertoires include inter alia around65% and 35%, respectively, of the top100 songs in recent years according tothe musical trade pUblications such asBill board, most establishments mustbe licensed by both BMI and ASCAP toavoid wholesale copyright infringement. BMI and ASCAP grant nondiscriminatory licenses at modest feeswhich depend on such things as thelicensee's annual entertainment costs,the room capacity, the number of days(or nights) per week that the establishment is open, and whether there is acover charge. The typical BMI orASCAP license provides that, upon thepayment of an annual fee, the licenseeis given permission to make an unlimited number of nondramatic performances of all of the licensingorganization's music, without the licensee's having to keep any records as tothe actual music used. Thus, BMI andASCAP serve as conduits between themasses of songwriters and musicusers for the exchange of performingrights and license fees. The licensingorganizations are clearinghouseswhich make it feasible not only for thetypical music user to obtain permissionto perform all of the copyrighted musiche or she actually uses but also for thetypical songwriter to deal with the multitude of places where his or her musicis being used.

If a music user refuses to take alicense from either BMI or ASCAP, themusic user will be "logged," or monitored, to garner reliable, accessible,

and admissible evidence that infringingperformances are occurring. An infringing musi6 user may be sued in federalcourt' and subjected to substantial liability in the form of statutory damages," which may be far greater thanthe license fees would have been."BMI's and ASCAP's vigorous copyrightpolicing and enforcement proceduresprovide an additional, compelling incentive for music users to becomelicensed instead of permitting unlicensed, infringing performances tocontinue.

It is by this system that the typicalsongwriter makes the major portion ofhis or her living from performanceroyalties-and has done so for manyyears. Cognizant of this practice, Congress passed the 1976 Act, which expanded the copyright owner's publicperformance right with respect to copyrighted music in the following threeways:

(1) by expressly defining "perform"and "perform publicly" morebroadly than those terms hadpreviously been construed bythe courts,"

(2) by eliminating the limitation thatan infringing pUblic performance must be "for profit,""and

(3) by eliminating the so-called"jukebox exemption.""

In addition, the duration of copyrightprotection was enlarged from (a) a 28year initial term plus a 28-year renewalterm to (b) life of the author plus 50years as a general rule."

Particularly in view of the new copyright law, the follOWing questions andanswers may be helpful to music usersand to attorneys who represent musicusers. In some instances, the questions and answers relate to unchangedaspects of the old copyright law ofwhich such persons may not be fUllyaware.

.J

IN WHAT KINDS OF PLACESDOES THE PERFORMANCE OFCOPYRIGHTED MUSIC, WITHOUTTHE COPYRIGHT OWNER'SPERMISSION, CONSTITUTE ANINFRINGEMENT?

Under the 1909 Act, the owner of thecopyright in a musical composition wasgranted the exclusive right to performthe musical composition "publicly forprofit."" In other words, under the oldlaw, the public performance for profit ofcopyrighted music-if done without alicense (that is, without the copyrightowner's permission)---{;onstituted aninfringement. However, since the 1909Act did not expressly define "for profit,"the courts frequentiy had to construethat limitation in deciding what was,and what was not, a copyrightinfringement under the old law.

In 1917, two cases involving the unlicensed performance of copyrightedmusic were simultaneously decided ina single opinion by the SupremeCourt." Live musical performances inthose cases took place in a restaurantand in a hotel dining room. The proprietors of the restaurant and hotel argued that the performances were not"for profit" because there had been nocharge for admission to hearthe music.The Supreme Court rejected thatargument, noting that the music waspart of a total price which the pUblicpaid through increased prices of thefood, and that the proprietors' purposein employing the music was profit.

SUbsequent to the restaurant andhotel dining room cases, copyright infringement suits were successfUllymaintained on the basis of musical performances at theaters," dance pavilions," dance halls,'· roller skating

rinks," night clubs," cabarets," andraceways." Eventually, it became wellestablished, even under the old law,that the unlicensed performance ofcopyrighted music at virtually any kindof place of business constituted an infringement.

Because Congress was aware thatthe line between commercial and nonprofit organizations was becoming increasingly difficult to draw and thatmany nonprofit organizations werebeing highly subsidized and were capable of paying royalties," the 1976 Acteliminated the "for profit" limitation infavor of a limited list of exempt performances." Thus, under the newlaw, any public performance ofcopyrighted music, except one thathas been either specifically exempted by the statute or licensed, constitutes an infringement; and, as willbe explained below, "public" reallymeans "semipublic."

ARE "PRIVATE" CLUBS ANDOTHER PLACES WHICH ARE NOTOr>EN TO THE PUBLIC AT LARGEEXEMPT FROM THE COPYRIGHTLAW?

No, semipublic places are notexempt from the copyright law. To thecontrary, the new law is perfectly clearthat performances at clubs, lodges,factories, summer camps, schools,and the like are clearly subject tocopyright control.

As previously mentioned, the 1909Act granted the exciusive right to perform copyrighted music "publicly for

profit."" Since the term "publicly," like"for profit," was not expressly definedin the 1909 Act, the courts also had toconstrue that term in the context ofcopyright infringement cases.

With respect to so-called "private"clubs, the courts uniformly held thatmusicai performances in a club mightbe "public" performances insofar asthe federal copyright law was concerned even though the club was considered "private" for other purposes,such as state liquor laws. Thus, evenunder the 1909 Act, "public" performances of copyrighted music were heldto have occurred in so-called "private"clubs in Massachusetts," Texas,"Minnesota,'· and Oklahoma."

A significantly broader scope of protection exists under the 1976 Actwhich grants to the copyright owner theexclusive right to perform copyrightedmusic publicly"--because an expressdefinition in the statute makes it clearthat a performance is considered to be"public" for purposes of the copyrightlaw if the performance occurs "at aplace open to the public or at any placewhere a substantial number of persons outside of a normal circle of afamily and its social acquaintancesis gathered."" Moreover, the relevantlegislative history of the 1976 Act isexpressed in both the Senate andHouse reports as follows: "One of theprincipal purposes of the definition wasto make [it] clear that. .. performancesin 'semipublic' places, such as clubs,lodges, factories, summer camps andschools, are 'public performances' subject to copyright controL"" Thus, the1976 Act extends to musical performances at some places whichmay have been outside the 1909ACt.35

(Editor's Note: We normally will not publish legal articles of the length of "Questionsand Answers About the Performance of Music under the New Copyright Law" byAuthor Jack C. Goldstein. However, in view of the article's excellence and novelty,readers should find it most interesting. If a case of its nature comes into one's office,the article will provide a law review type of research and reference. Aiso, our RegularFeature contributor Robert Keegan is moving his office and was unable to furnish thecopy of his "Advising Innovators" column for this issue.)

Mr. Goldstein is a member of the Arnold, White & Durkee law firm of Houston. Hespecializes in practice before the U.S. Patent and Trade Office. He is member:Advisory Board, Patent, Trademark and Copyright Journal; Board of Trustees,Copyright Society of the U.S.A.; American Patent Law Association; Houston PatentLaw Association (President-Elect, 1978-); and various bar associations.)

Juiy 1980/Arkansas Lawyer/149

CAN COPYRIGHTED MUSIC BEINFRINGED IF IT IS NOT PERFORMED LIVE? IF SO, WHAT MANNER OFPERFORMANCE WILL CONSTITUTE AN INFRINGEMENT?

The early cases did involve only liveperformances, but that was becauserecorded music was of such poor quality that it was not used commerciallyand because jukeboxes, radios, andtelevisions were not then in existence.

As various mechanical means forperforming music came into widespread commercial use, copyright ininfringement suits were successfullymaintained under the old law on thebasis of unlicensed musical performances by means of player pianos,'·phonographs," master radio sets forreceiving and retransmitting radiobroadcasts through amplifiers andmultiple loudspeakers," music services provided over telephone wires,"and jukeboxes."

The 1976 Act includes the followingall-encompassing definition: "To 'perform' a work means to recite, render,play, dance, or act it, either directly orby means of any device or process..."" Thus, the public performance of copyrighted music by virtually any means is subject to thenew copyright law."

AREN'T JUKE BOXES EXEMPTFROM THE COPYRIGHT LAW?

No. Jukeboxes were never whollyexempt from the copyright law, evenunder the old law. In any event, thelimited "jukebox exemption" of the150/Arkansas Lawyer/July 1980

1909 Act was eliminated by the 1976Act.

In 1909, there were no jukeboxes aswe know them today. However, somepenny arcades used to provide earphones through which patrons might,by inserting coins in slots, hear something that resembled music. Since thatpractice was more of a novelty than aviable commercial use of music, thecopyright owners of the 1909 era werenot concerned that the 1909 Act Included a limited exemption for therendition of music by means of "coinoperated machines."" It was not untillater, when the jukebox became asignificant factor in the music industry,that that provision became known asthe "jukebox exemption" and becamecontroversial. Even under the old law,the "jukebox exemption" was limited: itwas inapplicable if the jukebox (1) waslocated in a place where an admissionfee was charged" or (2) was wired tobe activated without the use of a coin.,.

Thus, the 1976 Copyright Act merelyrectified a historical accident by eliminating the limited "jukebox exemption." For most circumstances,however, the new law provides for aninexpensive compulsory license whichthe jukebox operator may obtainthrough the Copyright Office.'· Nevertheless, if one does not obtain either acompulsory license through the Copyright Office or licenses from the licensing organizations (or directly fromcopyright owners), the public performance of copyrighted music bymeans of a jukebox constitutes an infringement under the new law."

Some jUkebox performances mustbe licensed through the performingrights licensing organizations (orthrough the copyright owners) to avoidinfringement. Under anyone or more ofthe following circumstances, the statutory compulsory license for jukeboxesis of no avail:"

(1) the jukebox is not activated bythe insertion of coins, currency,or other monetary units,

(2) a direct or indirect admissioncharge is made,

(3) a list of the music is not affixed tothe jukebox or posted where the

list can be readily examined bythe public, or

(4) the patrons are not permitted tomake the choices as to themusic to be played.

In any event, jukeboxes are nolonger exempt from the copyrightlaw; and a public performance ofcopyrighted music by means of ajukebox, if not licensed or exempted, constitutes an infringement.

IF THE MUSICIANS ARE INDEPENDENT CONTRACTORS OVERWHOM THE PROPRIETOR HAS NOCONTROL, IS THE PROPRIETOR OFTHE PLACE OF BUSINESS NEVERTHELESS LIABLE FOR THE MUSICIANS' PERFORMANCE OF COpyRIGHTED MUSIC?

Yes. The proprietor of a place ofbusiness must bear the legal responsibility for the unlicensed performance ofcopyrighted music by musicians hiredby the proprietor, even if the musicians are independent contractorsover whom the proprietor has nocontrol." The legislative history of the1976 Act, as expressed in both theSenate and House reports, makes itclear that Congress intended that thatrule be continued under the newcopyright law:

The committee has actively considered and rejected an amendment. .. intended to exempt theproprietors of an establishment,such as a ballroom or night club,from liability for copyright infringement committed by an independentcontractor, such as an orchestraleader." [Emphasis added.)

In addition, when the proprietor of anestablishment rents the establishmentwith knOWledge that music is to beplayed, the proprietor is liable for theunlicensed performance of copyrighted music by musicians hired bythe renter-if the proprietor has afinancial interest, direct or indirect,which is related to, or contingent upon,the event at which the music is played.In one recent case, a catering hall andnight club proprietor had (1) rented itsballroom with knowledge that It was tobe used for a dinner dance and showfeaturing music and' (2) supplied thefood and liquor which was served by

the proprietor's employees." Basedupon those facts, the proprietor washeld liable for copyright infringementarising from the unlicensed performance of copyrighted music by musicians hired by the renter. In another,older case, a corporation which hadmerely rented its premises for a fixedamount was held not liable for the unlicensed performance of copyrightedmusic by the renter's musician; however, the court indicated that the situation would have been quite different ifthe corporation had received or deriveda profit from the performance."

IF THE PROPRIETOR OF A PLACEOF BUSINESS INSTRUCTS THEMUSICIANS NOT TO PLAY CERTAIN MUSIC, IS THE PROPRIETORLIABLE IF THE MUSICIANS NEVERTHELESS PLAY THE MUSIC?

Yes. The proprietor of a place of business may be held liable for copyrightinfringement even though the musicians performed the copyrighted musicagainst the proprietor's orders.53 In oneold case, the proprietor of a night clubin Louisiana had written contracts withorchestra leaders who had agreed, atthe proprietor's request, not to play certain music." Moreover, the proprietorhad prominently posted notices statingthat he objected to certain music beingplayed. In another, more recent case,suit was brought against the proprietors of a South Carolina night club; similarly, the band had been instructed notto play certain music." In both of thosecases, the proprietors were held liablefor copyright infringement when themusicians played the copyrightedsongs against the proprietors' orders.

IF THE PROPRIETOR OF THEPLACE OF BUSINESS DOES NOTPAY THE MUSICIANS, BUT RATHERMERELY ALLOWS THE MUSICIANSTO COME IN, PLAY, AND COLLECTTIPS, IS THE PROPRIETOR NEVERTHELESS LIABLE?

Yes. Several cases have held theproprietor of a place of business liablefor copyright infringement even thoughthe proprietor did not pay the musicians, but merely allowed them tocome in, play, and collect tips."

In the first reported case (which latercases followed), the proprietor of abarbecue stand in Missouri was suedfor infringement; and the proprietor'sdefense was that the musicians hadnot been employed or paid by the proprietor, although he had permitted themusicians to come to his place of business, furnished them with a place toplay, and permitted them to collect tipsfrom his customers." The court rejected the defense, concluding (1) thatthe proprietor had allowed the musicians to play with the view that theperformance would be of benefit to hisbusiness, (2) that the performance hadbeen advantageous to the proprietor,and (3) that the proprietor had paid themusicians indirectly by furnishingthem space in his place of business.

IF MUSICIANS PLAY FROMSHEET MUSIC ON WHICH A ROYALTY HAS BEEN PAID OR IF MUSICIS PERFORMED BY MEANS OF ARECORDING ON WHICH A ROYALTY HAS BEEN PAID, DOESN'TSUCH A ROYALTY PAYMENT EXHAUST THE COPYRIGHT OWNER'SRIGHT?

No. As applied to musical composition copyrights, the law grants differentkinds of protection in three separateand distinct areas, namely: (1) sheetmusic, (2) recordings, and (3) publicperformances. When one purchasessheet music or a recording, the purchaser certainly may use the sheetmusic or recording to render either aperformance which is not pUblic" or apublic performance which is specifically exempted under the new law."However, the portion of the very modest sheet music royalty or statutoryrecording royalty (i.e., now 2-3/4 centsper recording") which may ultimatelyfind its way from the purchaser to thesongwriter does not entitle the purchaser to render an otherwise infringing public performance."

WHAT SANCTIONS MAY BE IMPOSED AGAINST A COPYRIGHTINFRINGER?

A copyright infringer is subject to acivil action in federal court'" for an injunction" and the copyright owner's ac-

tual damages," the infringer's profits,"or statutory damages"-plus courtcosts" and attorney's fees."

In copyright infringement cases involving the performance of music, thecopyright owner will generally obtain ajudgment for statutory damages, ratherthan actual damages or profits. Statutory damages ordinarily will not be lessthan $250 or more than $10,000" foreach copyrighted song performed publicly without a Iicense.'o The 1976 Actdoubled the maximum statutory damages from the $5,000 upper limit of the1909 Act."

Damages for copyright infringementare not measured by the modestamount which the infringer might havepaid under a performing rightslicense." A copyright infringement suitsimply is not a suit for breach of alicense agreement which the copyrightinfringer refused to accept when it wasoffered. If the license fees were thesole measure of damages for copyrightinfringement, there would be little or nofinancial incentive for any music user totake a license since it would not costany more to infringe than to take alicense.

In addition to civil liability for copyright infringement, the copyright lawalso includes the following criminalsanctions: "Any person who infringes acopyright willfully and for purposes ofcommercial advantage or privatefinancial gain shall be fined not morethan $10,000 or imprisoned for notmore than one year, or both.. :'n

MAY AN INDIVIDUAL WHO CONTROLS THE AFFAIRS OF A CORPORATION BE HELD PERSONALLYLIABLE FOR COPYRIGHT INFRINGEMENTS OCCURRING AT APLACE OF BUSINESS OWNED ANDOPERATED BY THAT CORPORATION?

Yes, the individual may be held personally liable. There are many circumstances under which an individual willnot be shielded from personal liabilityby the existence of a corporation whichthe individual controls, manages, andoperates. For example, if an officer, di-


rector, or stockholder of a corporationparticipates in the actual infringementof a copyright, then that person is subject to liability along with the corporation." Similarly, a corporate officer andprincipal stockholder, who is the dominant influence in and who determinesthe policy of the corporation, is equallyliable with the corporation for itsinfringements."

CONCLUSIONOur forefathers regarded the en

couragement of the work of authors tobe so important that the original Constitution specifically provided for copyrights." Indeed, as stated by the Supreme Court:

The economic philosophy behindthe [constitutional] clause empowering Congress to grant patents andcopyrights is the conviction that encouragement of individual effort bypersonal gain is the best way to advance public welfare through thetalents of authors and inventors...Sacrificial days devoted to suchcreative activities deserve rewardscommensurate with the servicesrendered."

The songwriter must eat, as well asmake music. The copyright system isthe legal mechanism which enablesthe songwriter to make a living out ofhis or her creativity and genius. Musicis not "free as the air." To the contrary,music users must pay for their use ofthe songwriter's only product, music.When music is played publicly, onemust pay the songwriter, as well as thepiper.152/Arkansas Lawyer/July 1980

FOOTNOTES'See Goldstein, Outline of the legislative

History of Copyright Law Revision from 1955to 1976, 6 Am. Pat. L.A.O.J. 74 (1978).

'Act of Oct. 19, 1976, Pub. L. No. 94-553, §101,90 Stat. 2541, which amended 17 U.S.C. inits entirely. The new copyright code, which appears as an appendix immediately after the oldcopyright code in the 1976 edition of the officialUnited States Code, will be cited hereinafter as"17 U.S.C. app. § __ (1976)." The newcopyright code also appears in 17 U.S.C.A.(1977).

'Act of Oct. 19, 1976, Pub. L. No. 94-553, §102, 90 Stal. 2541, 2598-99.

'Act of Mar. 4, 1909, ch. 320, 35 Stat. 1075 (asamended, codified in 17 U.S.C., which wasenacted into positive law by Act of July 30,1947,ch. 391, § 1, 61 Stat. 652). The old copyrightcode, which appears in the 1976 edition of theofficial United Slates Code, will be cited hereinafter as "17 U.S.C. § __ (1976)." The oldcopyright code also appears as an appendix inthe pocket part of 17 U.S.C.A. (1977 & Supp.1979).~Shemel & Krasilovsky, This Business of

Music 135 (rev. ed. 1971).'17 U.S.C. § l(e) (1976). Thus, under the old

law the statutory royalties paid on a "million seiler" recording was $20,000. Of that, by custom inthe trade, half went to the publisher, who servedas a promoter. The other half often had to bedivided between or among two or more songwriters, particularly since the composers who supplythe music are often different from the authorswho supply the lyrics.

7Shemel & Krasilovsky, This Business ofMusic 124 (rev. ed. 1971).

'17 U.S.C. app. § 116(e) (3) (1976).'28 U.S.C. §§ 1338(a), 14oo(a) (1976)."Compare 17 U.S.C. § 101(b) (1976) with 17

U.S.C. app. § 504(c) (1976). See also JewellLaSalle Realty Co. v. Buck, 283 U.S. 202(1931).

llWidenski v. Shapiro, Bernstein & Co., 147F.2d 909 (1st Cir. 1945).

"17 U.S.C. app. ! 101 (1976)."Compare 17 U.S.C. § l(e) (1976) with 17

U.S.C. app. § 106(4) (1976). But see 17 U.S.C.app. § § 110, 111(a) (1976).

"17 U.S.C. § l(e) (1976)."Compare 17 U.S.C. § 24 (1976) with 17

U.S.C. app. § 302(a) (1977)."17 U.S.C. § 1(e) (1976).17Herbert v. Shanley Co., 242 U.S.C. 591

(1917)."M. Witmark & Sons v. Pastime Amuse

ment Co., 298 F. 470, 472 (ED.S.C.), aff'd, 2F.2d 1020 (4th Cir. 1924) (live musical accompaniment during silent movies).

lllirving Berlin, Inc. v. Daigle, 31 F.2d 832(5th Cir. 1929).

20Dreamland Ball Room, Inc. v. Shapiro,Bernstein & Co., 36 F.2d 354 (7th Cir. 1929).

z'Remlck Music Corp. v. Interstate HotelCo" 58 F. Supp. 523, 533 (D. Neb. 1944), aff'd,157 F.2d 744 (8th Cir. 1946), cert. denied, 329U.S. 809 (1947).

uEdwin H. Morris & Co. v. Burton, 201 F.Supp. 36 (EO. La. 1961).

UMCA, Inc. v. Wilson, 425 F. Supp. 443, 446(S.D.N.Y. 1976).

uFamous Music Corp. v. Bay State HarnessHorse Racing & Breeding Association, 554F.2d 1213 (1st Cir. 1977).

uS. Rep. No. 94-473, 94th Cong., 1st Sess. 59(1975); H.R. Rep. No. 94-1476, 94th Cong., 2dSess. 62 (1976). See Associated Music Publishers, Inc. v. Debs Memorial Radio Fund,Inc., 141 F.2d 852 (2d Cir.), cert. denied, 323

U.S. 766 (1944), in which the court practicallywrote the "for profit" limitation out of the 1909Act.

HCompare 17 U.S.C. § l(e) (1976) with 17U.S.C. app. §§ 106(4), 110, 111(a) (1976). Pursuantto 17 U.S.C. app. § 110(1976), the musicalperformances exempted by the statute are thosemade in the course of (1) face-to-face teachingactivities of a nonprofit educational institution, (2)certain systematic instructional broadcasting ortelecasting activities of a governmental body or anonprofit educational institution, (3) religiousservices, (4) certain nonprofit performances as towhich the performers, promoters and organizersare not compensated, (5) the mere public reception of a broadcast or telecast on a home-typereceiver, (6) agricultural or horticultural fairs (insofar as any governmental body or nonprofit agricultural or horticultural organization is concerned), and (7) the mere promotion of retailsales of recordings of the music. Certain secondary transmissions in hotels, apartments, or similar establishments are also exempted, pursuantto 17 U.S.C. app. § 111(a) (1976).

"17 U.S.C. § l(e) (1976).z8Lerner v. Club Wander In, Inc., 174 F.

Supp, 731 (D. Mass. 1959); M, Witmark & Sonsv. Tremont Social & Athletic Club, 188 F.Supp. 787 (D. Mass. 1960).

HPorter v. Marriott Motor Hotels. Inc., 137U.S.P.O. 473 (N.D. Tex. 1962).

)OLerner v. Schectman, 228 F. Supp. 354 (D.Minn. 1964).

"'Broadcast Music, Inc. v. Walters, 181U.S.P.O. 327 (N.D. Okla. 1973).

"17 U.S.C. app. § 106(4) (1976)."17 U.S.C. app. § 101 (1976) (emphasis ad·

ded)."·S. Rep. No. 94-473, 94th Cong., 1st Sess. 60

(1975); H.R. Rep. No. 94-1476, 94th Cong., 2dSess. 64 (1976).

)'For example, the first copyright infringementsuit against a college or university based uponthe unlicensed performance of copyrightedmusic has been filed by 8M!. Broadcast Music,Inc. v. President & Fellows of Harvard Colleged/b/al Harvard University, Civil No. 79-467~G

(D. Mass. filed Mar. 8,1979) (dismissed by stipulation filed July 25, 1979, pursuant to the parties'settlement which included Harvard's taking a8MI license).

U M. Witmark & Sons v. Calloway, 22 F.2d412 (E.D. Tenn. 1927): Buck v. Lester, 24 F.2d877 (E.D.S.C. 1928).

)7Buck v. Heretis, 24 F.2d 876 (E.D.S.C.1928).

uBuck v. Jewell-LaSalle Realty Co., 283U.S. 191 (1931). But see Fortnightly Corp. v.United Artists Television, Inc., 392 U.S. 390(1968); Teleprompter Corp. v. ColumbiaBroadcasting System, Inc., 415 U.S. 394(1974); and Twentieth Century Music Corp. v.Aiken, 422 U.S. 151 (1975). which all but over·ruled much of Buck v. Jewell-LaSalle. However, the broad definition of "perform" in the newlaw, 17 U.S.C. app. § 101 (1976), overrules theFortnightly, Teleprompter, and Aiken cases;but 17 U.S.C. app. § 110(5) (1976) exempts certain receptions "on a single receiving apparatusof a kind commonly used in private homes," and17 U.S.C. app. § 111(a) (1976) exempts certainsecondary transmissions in a hotel, apartment,or similar establishment.

3IHarms, Inc. v. Sansom House Enter~

prises, Inc" 162 F. Supp. 129 (ED. Pa. 1958),aff'd per curiam sub nom., Leo Feist, Inc. v.Lew Tendler Tavern, Inc., 267 F.2d 494 (3rdCir. 1959).

.oQuackenbush Music,·Ltd. v. Wood, 381 F.Supp. 904 (M.D. Tenn. 1974); Warner Bros.,

NEW BROCHURE DESCRIBES

CORPORATE OUTFITS

FROM EXCELSIOR-LEGAL

Inc. v. O'Keefe, 468 F. Supp. 16,20 (S.D. Iowa1978).

"17 U.S.C. app. § 101 (1976)..2There are, however, exemptions for the

mere pUblic reception of a broadcast or telecast"on a single receiving apparatus of a kind commonly used in private homes" provided that thereis no direct charge to see or hear the broadcast orlelecasl, 17 U.S.C. app. § 110(5) (1976), and forcertain secondary transmissions in hotels,apartments, or similar establishments. 17 U.S.C.app. § 111(a) (1976).

"17 U.S.C. § l(e) (1976)."17 U.S.C. § l(e) (1976); Quackenbush

Music, Ltd. v. Wood, 381 F. Supp. 904 (M.D.Tenn. 1974); Warner Bros., Inc., v. O'Keefe,468 F. Supp. 16,20 (S.D. Iowa 1978).

"Buck v. Kelly, 7 U.S.P.O. 164 (D. Mass.1930) (dictum).

"17 U.S.C. app. §§ 116(a)(2), 116(b)(1)(1976).

"17 U.S.C. app. § 116(b)(2) (1976). ASCAPand 8MI have begun to bring copyright infringement suits under the new law alleging unlicensedpUblic performances of copyrighted music bymeans of jukeboxes. Senor Music v.Paramount Automatic Machines Corp. CivilNo. 78 Civ. 3449 (S.D.N.Y. filed July 29, 1978);Broadcast Music, Inc. v. Mark IV Club, CivilNo. H-79-306 (S.D. Tex. filed Feb. 20, 1979).~17 U.S.C. app. § 116(e)(1) (1976).•DM. Witmark & Sons v. Pastime Amuse

ment Co., 298 F. 470, 475 (E.D.S.C.), aff'd, 2F.2d 1020 (41h Cir. 1924); Irving Berlin,lnc. v.Daigle, 26 F.2d 149 (E.D. La. 1928), modifiedastotheamountofdamagesonly, 31 F.2d 832(5th Cir. 1929); Dreamland Ball Room, Inc. v.Shapiro, Bernstein & Co., 36 F.2d 354 (7th Cir.1929); Remick Music Corp. v. Interstate HotelCo., 58 F. Supp. 523, 533 (D. Neb. 1944), aff'd,157 F.2d 744 (8th Cir. 1946), cert. denied, 329U.S. 809 (1947); Famous Music Corp. v. BayState Harness Horse Racing & Breeding Association, 554 F.2d 1213,1215 (1st Cir. 1977).

S(! S. Rep. No. 94-473, 94th Cong., 1st Sess.141 (1975); H.R. Rep. No. 94-1476, 941h Cong.,2d Sess. 159 (1976).

s'ltallan Book Corp. v. Palms SheepsheadCountry Club, Inc., 186 U.S.P.O. 326 (E.D.N.Y.1975). see atso MCA, Inc. v. Wilson, 425 F.Supp. 443, 456 (S.D.N.Y. 1976); Buck v. Cre...cent Gardens Operating Co., 28 F. Supp. 576,577-78 (D. Mass. 1939).

S2Fromont v. Aeolian Co., 254 F. 592, 593,(S.D.N.Y.1918).

USee Buck v. Cecere, 45 F. Supp. 441(W.O.N.Y. 1942); Famous Music Corp. v. BayState Harness Horse Racing & Breeding Association, 554 F.2d 1213 (151 Cir. 1977); KECAMusic. Inc. v. Dingus McGee's Co., 432 F.Supp. 72 (W.O. Mo. 1977); Warner Bros., Inc. v.O'Keefe, 468 F. Supp. 16, 19-20 (S.D. Iowa

1978).s·Shapiro, Bernstein & Co. v. Veltln, 47 F.

Supp. 648 (W.o. La. 1942).s&Bourne v. Fouche, 238 F. Supp. 745

(E.D.S.C. 1965).MBuck v. Rogers, 17 U.S.P.O. 434 (E.D. Mo.

1933); Donaldson, Douglas & Gumble, Inc. v.Terris, 37 U.S.P.O. 39 (M.D. Pa. 1938); Buck v.Pettijohn, 34 F. Supp. 968 (E.D. Tenn. 1940).

uBuck v. Rogers, 17 U.S.P.O. 434 (E.D. Mo.1933).

saSee text accompanying n.32, supra.USee n.25. supra.~17 U.S.C. app. § 115(c)(2) (1976).·'Remick Music Corp. v. Interstate Hotel

Co., 58 F. Supp. 523, 534-35 (D. Neb. 1944),aff'd, 157 F.2d 744 (8thCir. 1946), cert. denied,329 U.S. 809 (1947); Irving Berlin, Inc. v.Daigle,31 F.2d 832, 834·35 (51h Cir. 1929).

"28 U.S.C. §§ 1338{a), 14oo(a) (1976)."17 U.S.C. app. § 502(a) (1976). see M. Wit

mark & Sons v. Calloway, 22 F.2d 412, 414(E.D. Tenn. 1927).

"17 U.S.C. app. § 504(b) (1976)."17 U.S.C. app. § 504(b) (1976)."17 U.S.C. app. § 504(c) (1976)."17 U.S.C. app. § 505 (1976)."17 U.S.C. app. § 505 (1976). see Alfred Bell

& Co. v. Catalda Fine Arts, Inc., 75 U.S.P.O.283 (S.O.N.Y. 1947) (awarding attorney's fees tothe prevailing plaintiff, notwithstanding the de·fendants' good-faith belief in the existence of avalid defense); Warner Bros., Inc. v. O'Keefe,468 F. Supp. 16, 21 (S.D. Iowa (1978)(awardin9attorney's fees to the prevailing plaintiffs, in anamount greater than the statutory damagesawarded).

"17 U.S.C. app. § 504(c) (1) (1976).7°Jewell-laSalle Realty Co. v. Buck, 283

U.S. 202 (1931)."17 U.S.C. § 101(b) (1976). see Douglas v.

Cunningham, 294 U.S. 207 (1935); F.W.Woolworth Co. v. Contemporary Arts, Inc.,344 U.S. 228 (1952).

A new four color brochure describingall-in-one corporate outfits and selected legal products is now availablefrom Excelsior-Legal.

Featured corporate outfits includeBlack Beauty (R), Ex-Libris (R), Jet Setand Syndicate models. Legal productsoffered include bankruptcy sets, willsupplies, legal covers, exhibit indexes,time sets and file label index sets.

For your free CDpy, contact the Excelsior-Legal branch nearest you.

72Widenskl v. Shapiro, Bernstein & Co., 147F.2d 909 (1st Cir. 1945).

"17 U.S.C. app. § 506(a) (1976).HWarner Bros.-Seven Arts, Inc. v.

Kalantzakls, 326 F. Supp. 80, 82 (S.D. Tex.1971). See also Buck v. Crescent GardensOperating Co., 28 F. Supp. 576, 577·78 (D.Mass. 1939).

7sTempo Music, Inc. v. International GoodMusic, Inc., 143 U.S.P.O. 67, 69 (W.D. Wash.1964) aff'd sub nom., K-91, Inc. v. GershwinPublishing Corp., 372 F.2d 1 (9th Cir. 1967),cert. denied, 389 U.S. 1045 (1968); WarnerBros., Inc. v. O'Keefe, 468 F. Supp. 16,20 (S.D.Iowa 1978).

7eu.s. Const. art. I, § 8. cL 8.77Mazer v. Stein, 347 U.S. 201, 219 (1954).

I.,

Climb A Mountain!Run A River!Explore The Wilderness!we offer you thechance to do it now!

Send for brochure!

OutdoorAdventures. Ine.

p.o. Box 55115Hlllcre51 Station

Little Rock. AR 72205

Eastern Office62 White Street

N.Y., N.Y. 10013(212) 431-5000

Midwest OfficeP.O. Box 4956

Chicago, IL 60680(312) 786-9528

Western OfficeP.O. Box 5683

Arlington, TX 76011(817) 461-5993

~


~anon.s of american ~itizen.ship• eveRy ameRican citizen shoulO RecoCjnlZe the Outy to:

• upholb the laws of the umteb states, anb the states AnbcommuOltles.

• befenb OUR countRY fRom inVASIOn Anb OUR GoveRnmentfRom oveRthRow 8y foRce, violence, OR sU8veRslon.

• enCOURaGe Respect fOR law Anb ORbeR AnO inSist upon solutIons of OlffeRences anO GRieVAnces 8y pRocesses of law anbneveR 8y ResoRt to vIolence OR otheR unlawful means.

• suppoRt those chaRGeo wIth the enfORcement ano aOmlnIStRatlon of OUR laws; voluntaRily ACt AS A wItness anO seRveAS a JUROR.

• hARIlOR no pReJuOlce A'fAlnst Anyone 8eCAuse o~ RAce, ReliGIon OR national ORIGin.

• maintain PRlbe In famIly, heRItaGe Anb ChURch AS well as IncommuOlty, state Anb nation.

• keep InfoRmeo on Issues anb CAnOIOAtes, AnO vote In eveRyelectIon.

• Respect the RIGhts anO opinions of otheRS.

• paRtICIpAte In RelIGIOUS, ChARlta8le. CIVIC, eOucAtlonAl OR<nheR ACtIVIties to pRomote the welfaRe o~ the community.

• acknowleOGe that 'ResponsIBilitIes' ARe AS ImpORtAnt AS'RIGhts' In the pReseRVAtion o~ ~ReeOom anO Justice.

PRESENTED BYARKANSAS BAR ASSOCIATION


J

Are Vou WillingTo Pay The Price?

It could bea bigone! It's not uncommon forattorneys to be hit with suits by clients who feelbadly served. Whether the grievance is real orimaginary, the jury may be generous ... tothe plaintiff.

In view of the grm-ving numbel' of claimsand the vast arrlOunts paid in settlement, thetime may come when the only practicing attorney will be a well-protected attorney.

CNA and the Arkansas Bar Association haveworked together to come up with a comprehensive program ofprofessional liability insurance for its members that can help protectboth your financial and professional future.First, it helps to minimize the causes ofliabilitysuits through loss prevention programs. Then,it provides financial protection to help guardyou against professional and business liabilitywith a maximum of$1oo,000 per claim($300,000 annually) after a deductible.

Think you need more? Supplemental protection of$1,000,000 for business and professional coverage is also available.

(fyou can't afford the price ofa lawsuit,it's time to learn more about your Associationsponsored Comprehensive Lawyers Professional and Business Liability Plan, including theexclusions, any J'eductions or limitations andthe terms under which the policy maybe continued in force. Just send the coupon below to theddministrator: Rather, Beyer & Harper.

,---------------------1I Please send me information fOI" the Arkansas Bar Asso· II ciation sponsored Lawyer"s Professional and Business II Liability Insurance. Send to: II Arkansas Bar Association Administrator II Rather. Beyer & Harper II Suite 362. Prospect Building. II 1501 North Little Rock. Arkansas 72207. II Or call (501) 664-8791. Ii II Name II n,m II II~~ II II City Slxmsored ~","s".r II hy: 1...q=A~~ I

« ~...»I State ip ~ ~. '&'.' I

~.",'\i.L ~


OYEZ · OYEZ IIby Barbara Tarkington

Membership Secretary

NEW LOCAL BAR OFFICERS

HARRY E. MEEK, lillie Rock, has retired as attorney for the state Bank Department. SHERRY PERKINSBARTLEY, Little Rock, is assistantU.S. Attorney. DONALD R. BENNETT, formerly of Rogers, andCHARLES R. SINGLETON are nowwith the ABC Board in Little Rock.LARRY WALLACE, N. lillie Rock, hasbeen elected 1980 chairman of theBoard of Directors of the Greater-lillieRock Chamber of Commerce. GUYAMSLER, JR., lillie Rock, is the newpresident of the Arkansas Children'sHospital Board of Trustees andJAMES T. DYKE, Little Rock, is thenew vice-president. DAN DANE, Forrest City, has been named to fill anat-large position on the 3-member St.Francis County Election Commission.DAIL STILES, Lillie Rock, has beenappointed as prosecutor co-ordinatorby the Arkansas Prosecuting Attorney's Assn. KENNETH SUGGS, N. little Rock, has received the Greaterlillie Rock Chamber of Commerce Annual William J. Smith Award for theOutstanding Jaycee of the year. REEDW. THOMPSON, previously in thePhilippines, has been named directorof the state Law Enforcement Standards Commission. MIKE GIBSON,Osceola, is Mississippi District chairman for the Boy Scouts of America.WOODSON W. WALKER, lillie Rock,has been appointed by Gov. Clinton toa 5-year term on the state CorrectionBoard. LOUIS B. JONES, JR., ForrestCity, has been appointed to a term onthe Crime Laboratory Commission.JAMES CARFAGNO, JR., formerly ofPine Bluff, is now with the Human Service Providers Assn of Arkansas, Inc.JAY ELDRIDGE, Augusta, has beennamed deputy prosecuting allorney forWoodruff County. NOYL HOUSTON,Trumann, succeeded MIKE EVERETTas deputy prosecuting attorney forPoinsell County. PAUL K. LANCASTER, Benton, succeeds DAN MOUDYas deputy prosecuting allorney for the7th Judicial District. THOMAS E.156/Arkansas Lawyer/July 1980

BROWN, Pine Bluff, is a new deputyprosecuting allorney for the 11 th Judicial District. JAMES McHANEY, JR.,lillie Rock, one of the four deputy prosecutors at the Nuremberg trials, attended the 30th anniversary held atWashington. JAMES SPROTT,Brinkley, spoke to the students at theBrinkley High School on Arkansas Lawand the court system. DR. ROBERT R.WRIGHT, lillie Rock, was a speaker ata UALR Distinguished Professor Lecture Series sponsored by UALR Div ofContinuing Education. STEVE ELLEDGE, Brinkley, was instructor for a10-week course on income tax preparation. An 8-week class on Law forWomen was taught by JANET BURTNESS of Hot Springs. SAM LASER,lillie Rock, was a speaker at the Marchmeeting of the Full Gospel BusinessMen's Fellowship International. KENNETH R. SMITH, Yellville, spoke to theN. Arkansas Community College journalism class on the FOI Act of 1967.LARRY WALLACE, N. Little Rock,spoke at the 11th annual Lonoke AreaChamber of Commerce. JOYCE WIL-

Southeast Arkansas Bar AssnPresident DON H. ROSS

Garland County Bar AssnPres. GEORGE CALLAHANV-Pres. LOUIS LONGINOTTI, IIISec.{Treas. BRUCE MacPHEE

North Pulaski County Bar AssnPres. STEVE MORLEYV-Pres. BASIL HICKSSec. MORGAN CHIP WELCHTreas. BILL ROBINSONUnion County Bar AssnPres. BILL McLEANV-Pres. DAVID F. GUTHRIESec.{Treas. BOBBY E. SHEPHERD

Lawrence-Randolph Bar AssnPresident MURREY GRIDER

L1AM WARREN, lillie Rock, spoke atthe 22nd annual Reunion Dinner of theBlue Triangle Branch YMCA. JOSEPHP. JAMES, Newport, has a branch office in Newark that is open on Wednesdays. RICHARD NELSON, formerly ofSpringdale, is now located in Mtn.Home. SAM HEUER and BILL E.BRACEY, JR. have joined Springdaleattorney CHARLES E. DAVIS andformed the law firm of Davis, Bracey &Heuer. ROBERT F. ANDREWS andSTEVE WESTERFIELD of WalnutRidge have formed a partnership. NEDA. STEWART, JR., formerly of Texarkana, AR, is now with the U.S. Magistrate's office in Fort Smith. JAMES W.RICHARDSON, formerly of Sherwood,is in Arizona. WAYNE TIMMONS, formerly of Magnolia, is now in Texas.DAVID HOPKINS, formerly of HotSprings, is in Pennsylvania. LESEVITTS, formerly of Little Rock, hasmoved to Tennessee. JOHN PETERSON, Mt. Ida, has announced the closing of his law practice and returning tolabor law. A new law firm has beenformed in Pine Bluff by BART MULLIS,

Jefferson County Bar AssnPres. TED DRAKEV-Pres. KENNETH BAlMSec.{Treas. JOHN L. RUSHSBA UofA School of LawPres. GEORGE VAUGHT1st V-Pres. TIM COX2nd V-Pres. MARK ROBENSSec. MARY ANN GUNNTreas. RON HOPE1st year

Rep MARTHA MORGAN2nd year

Rep BEN CARUTH3rd year

Rep BILL MEEKSStudent-Faculty

Rep LAURA HENSLEY

THE ANSWER 10 YOURQ.IENT'S SURPRISE QUESTION

Elmer P. RobertsP.O. Box 7659Linle Rock, AR 72217Phone: 501/224-5471

What do you do when your client throws you asurprise question-one that is more complex than usualor far afield from your normal areas of practice?

You can do what thousands of successful lawyers do.Rely on CJS for a fast and thorough answer.

The responsive CJS index guides you to the propersection and title for your subject. In seconds, you havethe prevailing rule spelled out in clear, conciselanguage. And you can answer the "surprise" questiontaster than the client expects.

CJS. The answer. Get the full story by contactingyour West Sales Representative. Or write us: WestPublishing Company, 50 Kellogg Blvd., P.O. Box 3526,St. Paul, MN 55165.

~-vRock, is with the Attorney General'soffice in the Litigation Division. WILLIAM F. LAMBRIGHT, Little Rock, hasmoved his office to the Worthen BkBldg. ROBERT R. KEEGAN, Fayetteville, is now located at #7 N. BlockStreet. JACK HOLT, JR., Little Rock,has been awarded the Meritorius Service Medal for service as a colonel,USAF Reserve, from 1972-79.1..,

FRED D. DAVIS, III and MARK B.CHADICK with offices at 402 E. 5thAve. LANE H. STROTHER has joinedOsmon & Wilber of Mtn. Home.MARSHA YOWELL, formerly withLegal Aid Bureau of Central Ark., isnow with the UALR Law School's LegalClinic. PAT HAYS, formerly of LittleRock, is now located in the TCB Bldg.,N. Little Rock. DARRYL BAKER, formerly of N. Little Rock, is now with GaryEubanks & Assoc. in Little Rock.MICHAEL O'MALLY, formerly with theAttorney General's office, is now withMitchell, Williams, Gill & Selig, LittleRock. JAMES E. DICKSON, formerlyof Jonesboro, is in Little Rock. TERRYF. WYNNE, Pine Bluff, has joinedBridges, Young, Matthews, Holmes &Drake. WILLIAM L. BUFFALO hasjoined a Little Rock law firm and itsname changed to Pope, Shamburger,Buffalo & Ross. ROBERT D. SMITH III,GEORGE O. JERNIGAN, JR. and H.VANN SMITH, Little Rock, haveformed the law firm Smith, Jernigan &Smith. FRANK 6". WHITBECK has relocated his office in the new SaversFederal Savings & Loan Bldg., LittleRock. MICHAEL H. MASHBURN hasjoined a Springdale law firm and itsname changed to Blair, Cypert, Waters& Roy. P. DOUGLAS MAYS, LittleRock, is now a member in the law firmGunter, Mays & Lamb. RONNY J,BELL has become a partner in a Magnolia law firm and its name changed toAnderson, Crumpler & Bell. STEVEBAUMAN, Little Rock, is now associated with Eichenbaum, Scott, Miller, Crockett, Darr & Hawk, PA. DAN E.MOUDY has become a partner in aBenton law firm and its name changedto Hall, Tucker, Lovell, Alsobrook &Moudy. JOHN MATTHEWS, LittleRock, has joined JAMES H. AKINSand formed the firm of Akins & Matthews. OVERTON S. ANDERSON andJOSEPH E. KILPATRICK, JR., LittleRock, has formed the partnership ofAnderson & Kilpatrick with offices at#One Spring St. The law firm of Kincaid, Horne & Trumbo of Fayettevillehave moved their offices to 207 W.Center. FRANK B. SEWALL, formerlywith the Arkansas Insurance Dept., isnow with National Old Line in the LegalDept. CARL A. CROW, JR., formerlywith the Attorney General's office, isnow associated with the Hot Springslaw firm Glover, Sanders, Parkerson &Hargraves. FLOYD CLARDY, III, formerly of Nashville, has become associated with Ted Boswell, PA ofBryant. ARBY FRIEDLANDER, Little


/1

LAW SCHOOL NEWS

Assistant Dean James K. MillerAssistant Dean Ellen Brantley

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLEDean David Epstein has been

elected to membership in the AmericanLaw Institute, has accepted an appointment as one of nine members ofthe Editorial Advisory Board of WestPublishing Company, and has beenappointed as one of nine members ofthe American Association of LawSchools Committee on Accreditation.He also served on an American BarAssociation Inspection Team that inspected Wake Forest UniversitySchool of Law.

Newly elected officers of the Arkansas Law Review are: Leo "Buck" Farrow, Editor-in-Ohief; Ann Faford,Managing Editor; Randall Lamb,Comments Editor; Jacki Morgan,Casenote Editor; Randy Sandifer,Citations Editor; Bob Topping, Business Manager; Beverly Stites andMike Smith, Articles Editors; and JimGoldie, Research Editor.

Law Librarian George Skinner, Associate Librarian Maurice Pope, andReference Librarian David Cowan recently attended the Southwest Association of Law Librarians meeting inHouston.

Dean David Epstein and ProfessorSteve Nickles have signed a contractwith West Publishing Company as coauthors of a hornbook on CreditorsRights.

Second year students MarianWagner and Vicki Elder were winnersof the Spring Moot Court Competition.JUdges for the competition were JudgeJ. Smith Henley, Attorney GeneralSteve Clark, and Dean David Epstein. Ms. Wagner and Ms. Elder thenparticipated in regional competition inDenver, Colorado where they reachedthe semifinals. Professor Steve Pepper, moot court faculty advisor, alsoattended the Denver regionals.

The University of Arkansas Board ofTrustees has approved Steve Nickles'promotion to full professor. ProfessorNickles also has received his J.S.D.from Columbia University.

Professor Phillip Norvell and Visiting Professor Frank Skillern werespeakers at the National ResourcesLaw Institute held in Hot Springs.

Professor Mort Gitelman hassigned a contract with West PublishingCompany for a new edition of his LandUse casebook.

Dean David Epstein was one of sixspeakers at the Southeastern Bankruptcy Law Institute in Atlanta on February 21-23, spoke in Dallas on March26 on Bankruptcy to the SouthwesternLegal Foundation Symposium on Developments in Banking law, was keynote speaker at the Washburn LawJournal Banquet on April 8 and deli-

vered the Foulson, Sierfkin Lecture atWashburn on April 9.

Second-year student Mark Robenshas been elected Governor, 10th Circuit, Law Student Division of theAmerican Bar Association.

Professor Tom Robinson has spoken to estate planning groups in FortSmith, Tulsa, and Joplin.

The UA client counseling tearn,composed of third-year students JohnArens and David Vanderzwaag,placed second in a field of twelvetearns that competed in the SouthwestClient Competition held in Waco,Texas.

Governor Bill Clinton spoke at thelaw school in March.

Ms. Sarah Weddington, a memberof President Carter's senior WhiteHouse staff, spoke at the law schoolApril 2. At age 25, Ms. WeddingtonsuccessfUlly argued Roe v. Wade before the U.S. Supreme Court.

A Red Cross blood drive at the lawschool netted a 1DO-pint donation fromlaw school students, faCUlty, and staff.Student Bar Association officersGeorge Vaught and Mary Ann Gunncoordinated the drive.

Dr. Hoyt Gardner, President of theAmerican Medical Association, spoketo law students on April 2. His topic was"The AMA Today and Tomorrow with aView of Malpractice".

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT LITTLE ROCKALUMNI DAY OF VISITATION

On Thursday, April 10, alumni of theUALR School of Law were on campusto visit classes, talk with faculty andstudents, tour the law school, and participate in other activities. The morningwas devoted to class visitation; in theafternoon the alumni heard a reportfrom the Dean, faCUlty presentationson the law school curriculum, continuing legal education, the Law Journal,and placement. Later in the day, alumni158/Arkansas Lawyer/July 1980

were special guests at the finals of theMoot Court Competition. Judges forthe competition were Chief JusticeJohn Fogleman of the Arkansas Supreme Court, Judge Richard Arnold ofthe U.S. Court of Appeals for the EighthCircuit, and Dean Roger Cramton ofCornell Law School. Following theMoot Court, a reception was held at theArkansas Bar Center. The day of visitation concluded with the Spring 1980

Altheimer lecture, which is describedbelow.

ALTHEIMER LECTUREDean Roger Cramton of the Cornell

Law School delivered the Spring 1980Altheimer lecture on Thursday evening, April 10. His topic was LawyerCompetency and Legal Education.

Dean Cramton was chairman of theTask Force on LawyerCompetency ofthe American Bar Association Section

Charles Eichenbaum (third from left), senior partner of the Little Rock law firm ofEichenbaum, Scott, Miller, Crockett, Darr and Hawk, presents $300 checks toThomas DeMarco (second from left) and Steve Nilsson (fourth from left), the firsttwo recipients from a $15,000 scholarship fund established with the Arkansas BarFoundation by the law firm for students at the UALR School. Members of the firmraised the money to honor Eichenbaum for his 50th year of practice in 1979.Others present for the ceremony included Robert K. Walsh (left), Dean of the LawSchool, and William Miller (second from right) and Leonard Scott of the law firm.


on Legal Education and Admission tothe Bar. The report issued by the taskforce, "Lawyer Competency: The Roleof the Law School," (more frequentlyreferred to as the "Cramton Report")was published iast August and hasbeen widely discussed in the bar andamong legal educators.

WESTLAW TRAINING BEGINSThe WESTLAW Computer Terminal

has been installed in the library, andseveral training programs have beenbegun. Students in the Research, Writing, and Advocacy course receiveWESTLAW instruction as part of thecourse. Other students may join facultyand members of the bar in twice weeklytraining sessions. These sessions areled by UALR staff members who havereceived extensive training inWESTLAW use. Any attorney whowishes to be trained may sign up for thetraining sessions, which are free, andwhich are held each Tuesday andThursday afternoon from 3:30 until5:00 by calling reference librarianKaren Stitsworth. The WESTLAWcomputer is available to attorneys for$37.50 for up to V2 hour, and $1.25 perminute thereafter. Members of the Research Pool will do research on theWESTLAWterminal at the same rate inaddition to their normal research fee.

HOUSE, HOLMES AND JEWELLSCHOLARSHIPS

The Little Rock law firm of House,Holmes, and Jewell has donated a$500 scholarship to the School of Law.The scholarship was awarded for thefirst time for the Spring 1980 semester.The scholarship is for second yearstudents and is awarded each semester. The firm will select the recipientsfrom nominees submitted by theSchool of Law.

FACULTV NOTESDean Robert K. Walsh continued his

appearances before bar and civic organizations throughout the state. OnJanuary 24, he addressed the Texarkana Bar, on February 15 he spoke tothe North Pulaski Bar Association atNorth Little Rock, and on March 28, hespoke at the Newport Rotary Club.

Articles by Dean Walsh and Professor L. Lynn Hogue recently appeared inthe Gazette as parts of a series on theproposed constitution. Dean Walshwrote on the judicial article; Professor

Hogue, on provisions relating to localgovernment. Professor Hogue servedas a panel member in a workshop on"Physicians Extenders: Their Ability toPrescribe" held during the NationalConference on Rural Health Care heldin Little Rock, March 3-5. ProfessorHogue was elected SecretaryTreasurer of the Section on Legal History of the Association of AmericanLaw Schools at the Association's Annual Meeting in Phoenix, January 3-8.

Professor O. Fred Harris wascochairperson of the Third AnnualLabor Law Institute of the Arkansas BarAssociation held February 29 andMarch 1. He presided at one of theInstitute's sessions. Professor Harrisspoke at Little Rock Central HighSchool in conjunction with the PulaskiCounty Bar Association's YouthAwareness of Law Program, and atHall High School as part of the Vocation Seminar Series sponsored by theVolunteers in Public Schools. On February 3, 1980, Professor Harris spokeon "Service to Humanity: A Bridge to aBetter World in the 1980's" at theFounders Day Program at the LittleRock chapter of Phi Beta Sigma.

Professor Frederic K. Spies waspresented with the Certificate of Award

of Merit by the American Academy ofForensic Sciences at its 32nd AnnualMeeting in New Orleans. He receivedthe award for his service as Secretaryand Chairman of the JurisprudenceSection, and as a member of theExecutive Committee of the Academyfor 1979-80.

An article by Professor Fred W. Peel,"Definition of a Partnership: NewSuggestions on an Old Issue," was recently published in the Wisconsin LawReview.

Assistant Dean Ellen Brantley spoketo the Women's Caucus of the Arkansas Education Association on Saturday, February 16. Her topic was "ERA:What It Will (And Won't) Do." Shespoke on the same topic to a meeting ofEqual Rights Arkansas on Saturday,March 22.

Professor L. Lynn Hogue has submitted the manuscript of his forthcoming book PUBLIC HEALTH AND THELAW: ISSUES AND TRENDS whichwill be published in the summer of 1980by Aspen Systems Corporation.

The work of Assistant DeanClaibourne Patty with the Arkansas institute for Continuing Legal Educationis discussed in his separate article in

this issue. '"

MIDYEAR MEETING FIRST FORCONCURRENT PROGRAMMING

The Midyear Meeting of the Arkansas Bar Association held at theCamelot Inn, Little Rock, Arkansas,January 17-18, 1980, was a "first" inthat a program of two rather diversesubjects was run concurrently Friday,January 18, following a general session of recent federal and Arkansasdevelopments in criminal law and procedure presented by ProfessorsRaphael Guzman and Steven H.Goldberg and William B. Howard, Esq.on Thursday the 17th. Specifically onFriday morning a panel consisting ofProfessor Raphael Guzman, JudgeWilliam H. Enfield, Prosecuting Attorney Wayne Matthews and attorneyJohn Calhoon presented the ModelCriminal Jury Instructions adopted forArkansas. in a separate session,Messrs. Richard A. Williams, Byron M.Eiseman, Ted N. Drake, and F.H. Martin presented an estate planning update using typical examples of thebusinessman, the professional person,and the farm family. On Friday afternoon there was a general session devoted to revisions in the Arkansas Probate System presented by William D.Haught along with practical aspects ofadministration of decedents' estatespresented by Maurice Cathey andpostmortem estate and income taxproblems presented by Robert H.Holmes. In addition the Friday proceedings on the Model Criminal Jury Instructions and the Probate Law updatewere videotaped in color, and the cassettes of this videotaping are availablefor use by law firms and local bar associations at no charge.

With the exception of some minor160/Arkansas Lawyer/July 1980

AICLE NEWSby Claibourne W. Patly, Jr.

Executive DirectorArkansas Institute of

Continuing Legal Education

crowding in the area designated for theestate planning update, the 262 registrants were in favor of presenting two ormore diverse subjects at one largemeeting when the subjects are of current interest, and it would not be practical to have separate meetings for eachsubject.

THIRD ANNUAL LABOR LAW INSTITUTE ATTENDANCE INCREASED 25%

The Third Annual Labor Law Institute, jointly sponsored with the LaborLaw Section of the Arkansas Bar Association, was conducted February 29and March 1, 1980, at DeGray Lodge.This year's institute was conducted ona workshop format which proved to beso successful at the Second AnnualLabor Law institute held last year. Thepaid registration consisting of labor lawattorneys, paralegals and personnelmanagers totaled 56, which was agood turnout considering the highlyspecialized nature of the subject matter.

The program concentrated in suchdiverse topics as class actions andTitle VII cases presented by the Honorable Richard S. Arnold, U.S. DistrictJudge to arbitration of employmentdiscrimination complaints by PeteGregan, coordinator of labor educationprogram, U of A Industrial Researchand Extension Center. Within thisrange of topics various representativesof federal governmental agencies presented the following topics: new EEOCguidelines and procedures, arnendments to the National Labor RelationsAct with emphasis on section 8gHealth Care, Freedorn of InformationAct problems in the area of EEO and

proposed changes in the office of Federal Contract Compliance ProgramRegulations, Freedom of InformationAct in the NLRB and finding an "affected class". A final topic which provided lively discussion was that of public sector bargaining presented jointlyby Jeanie Lambie, President of the Association of State, County and Municipal Employees; and Ron Lloyd, Director of Personnel, City of Little Rock.

Ianticipate in future years the reputation of this fine presentation on currentdevelopments in the vast area of laborlaw will attract more general practitioners whose clients find themselves involved in the multitude of cases arisingin this area as well as business agentsand presidents of local labor unionswhose attendance has been thin in recent years. The overall purpose of thisprogram as presented by the LaborLaw Section is to present both sides (orin some cases three sides) of eachissue and not to present a "promanagement," "pro-union" or "proclaimant" bias.

SECOND ANNUAL TAX AWARENESS INSTITUTE

A Tax Awareness Institute jointlysponsored by AICLE and the Taxation,Trusts and Estate Planning Section ofthe Arkansas Bar Association will already have been presented in LittleRock, on April 25-26, by the time theArkansas Lawyer reaches the membership. Randall W. Ishmael presidedas chairman of the program which wasbilled as a "nuts and bolts workshop"concerned with the use of trusts in estate planning for non-tax-orientedlawyers. The subjects discussed under

Qualified and Experienced Expert Witness.HIVe elmer. end Mlcro.cope· Will TreYel.

Forensic Document ExaminerROBERT G. FOLEY, M. S., M. A.

P. o. BOX 4506MONROE, LOUISIANA 71203

OFFICE: 318-323-5815

Scientific Examination of Handwriting, Typewriting, Ink and Paper Analysis.Dating, Copies and other Related Document Problems.Oi~omate: Amelican Board of Forenstc Document Examiners. IncMember: American Society of Questioned Document Examiners

American Academy of Forensic Sciences.

this general topic were selected in theareas in which most practitioners areinvolved at some time such as: maritaldeduction trusts, generation-skippingtrusts, life insurance trusts-revocableand irrevocable, trusts for minors, Clifford trust arrangements, propertylease-back trusts, revocable trusts ingeneral as well as a panel discussion ofthe statutory power of fiduciaries, practical aspects of trust administration,selection of trustees and income taxation of trusts.

It is the purpose of these nuts andbolts workshops for non-tax-orientedlawyers to provide "awareness" of thetax aspects of various areas in whichmost attorneys practice which are affected by the tax law in some way. Theobjective is to give the participants inthis program an idea of the tax aspectsinvolved, some of the general theorybehind the tax law applicable andpoints to consider in representing theirclients without trying to make taxspecialists out of them. So far theseprograms have been well received andit is felt that they have been a materialfactor in the increased lawyer attendance at the Annual Federal Tax Institute conducted jointly with the CPA's.

SECOND ARKANSAS COLLEGEOF TRIAL ADVOCACY

The Second Annual Arkansas College of Trial Advocacy, jointly sponsored by AICLE, the UALR School ofLaw, and the Arkansas Trial LawyersAssociation will be conducted in LittleRock at the Old Federal Building forfive days beginning May 11 and endingMay 15.

Once again this program will be limited to thirty-six registrants, and it isdesigned primarily for practicing attorneys with zero to five years of trial practice experience. This trial advocacyprogram will stress techniques and information designed to enhance thepractical knowledge and to sharpen thecourtroom skills of those attorneys whoattend. Lectures, demonstrations andworkshops will be conducted by highlyqualified teams of experienced trialpractitioners and law professors. Thetopics covered will include, but not belimited to, direct and cross examinationof witnesses (expert and lay), adverseexamination, opening statement andclosing argument, use of demonstrative evidence and foundationsimpeachment.

There will be three concurrent workshops, each consisting of a leader and

workshop faculty of two seasonedpractilioners (one plaintiff oriented, onedefendant oriented) with twelve participants. By the use of lectures, demonstrations, and videotaping of theperformance by the participants, theworkshops will focus on improvementof the participants' trial skills.

The workshop leaders will beThomas J. McNamara, Esq., GrandRapids, Michigan; Professor Steven H.Goldberg, UALR School of Law; andJames A. George, Esq., Baton Rouge,Louisiana. A partial list of workshopand demonstration faCUlty includes:Scott Baldwin, Esq., Marshall, Texas;Phillip Carroll, Esq., Little Rock, Arkansas; Robert C. Compton, Esq., EIDorado, Arkansas; Winslow Drummond, Esq., Little Rock, Arkansas;Stephen Engstrom, Esq., Little Rock,Arkansas; Professor James Jeans,University of Missouri at Kansas CitySchool of Law; Phillip E. Kaplan, Esq.,Little Rock, Arkansas; Boyce R. Love,Esq., Little Rock, Arkansas; Sidney S.McMath, Esq., Little Rock, Arkansas;Walter R. Niblock, Esq., Fayetteville,Arkansas; Samuel A. Perroni, Esq., little Rock, Arkansas; George Procter,Esq., U.S. District Attorney; HillaryRodham, Esq., Little Rock, Arkansas;William R. Wilson, Esq., Little Rock,Arkansas; and Honorable HenryWoods, U.S. District Judge.

By the time this issue of The Arkansas Lawyer has been published thegeneral bar membership will have already received an initial flyer along witha more complete follow-up brochureannouncing the details of the ArkansasCollege of Trial Advocacy program for1980.

ANTITRUST-A FIRST FOR ARKANSAS

A program entitled "Antitrust: AnOverview for the General Practitioner"

jointly sponsored by AICLE and theCommittee on Antitrust and TradeRegulation of the Arkansas Bar Association will be presented at theCamelot Inn in Little Rock on Friday,May 23. James M. Simpson, Jr. is theprogram chairman and the program willinclude such topics as an introductionand scope of the program; a videotapeentitled "The Name of the Game is P &L", the statutory scheme, agreementsbetween competitors and monopolization, antitrust problems in the distribution of goods and services, pricingunder Robinson-Patman, and concluding with a panel discussion of a varietyof nuts and bolts type subjects. Theprogram chairman states in the forwardthat subjects discussed within thesegeneral topics will be those which thegeneral practitioner will encounterwhile representing business clients aswell as an individual who might be interested in filing a class action.

PROGRAMS IN PROGRESSPlease mark your calendars for the

following annual programs: the FallLegal Institute in Little Rock on September 18-19, devoted to the introduction of the new family law system,jointly sponsored by the Family LawSection of the Arkansas Bar Association; the Twenty-first Annual PracticeSkills course in Little Rock, on October2, 3 and 4, jointly sponsored by theYoung Lawyers Section of the Arkansas Bar Association; the ArkansasFederal Tax Institute in Little Rock onNovember 13-14, jointly sponsoredwith the Arkansas Society of CPA'sand the Midyear Meeling, January.15-16, 1981, devoted to the introduction of the creditors and debtors lawsystem and jointly sponsored by theCreditors Rights Committee of the Arkansas Bar Association. f.....

july 1980/Arkansas Lawyer/161

ARKANSASBAR fOUNDA TION

by Boyce LoveChairman

This is the last report of the Foundation year, and I want to tell you a littleabout what has been accomplishedduring the year and what the future appears to hold for the Arkansas BarFoundation.

The strength of the Foundationcomes from our Fellows program. It allbegan back in 1959 when the firstpledges were made toward acquiringproperty and constructing a building.Much work was done over a longperiod of years as solicitations weremade around the state by many volunteers. It got into high gear, however, inthe late '60s and early '70s leading upto the construction of the building in1973. There has been no membershipdrive since, but new Fellows have continued to trickle in. We felt, however,that since the completion of the building and the gradual cessation of effortsto enlist new Fellows, a number of lawyers had reached the stage in theirlives and practice that they should beFellows. Further, we felt that many ofthese lawyers would have alreadyjoined the Fellows' rolls if they hadbeen given the opportunity. Therefore,a committee was appointed, under theleadership of Bill Eldredge, to scan theBar directory and approach thosepeople who seemed to fit in that category. This is presently being done, andour predictions have turned out to betrue. A number of new Fellows havealready been enlisted, many paid infull, and others have the matter underserious consideration.

Our Oral History Committee hasbeen active. There will come a timewhen the tapes of these interviews withthe "elders" of our profession will beregularly sought out and listened to bystudents, researchers and the historyconscious.162/Arkansas Lawyer/July 1980

In the fall, the Foundation sponsoreda seminar at the University of ArkansasSchool of Law in Fayetteville, whichwas devoted to a critique of the lawyersby judges. A crowd of about 100 lawyers heard Chancellor Tom Butt, Circuit Judge Tom Digby, Justice JohnFogleman and U.S. District Judge TomEisele discuss the everyday errorsseen in court from the other side of the"bench."

The Foundation Trust Funds havecontinued to grow, making more income available for law scholarships,public education programs, law schoolawards, law review subsidies andnumerous other worthwhile efforts. Inaddition to the funds provided by newFellows and payments on Fellowpledges, the Foundation has receivedseveral gifts and contributions to designated Scholarship funds. The RoseLaw Firm has recently put $15,000.00in trust with the proceeds to be used forFoundation scholarships. Friday, Eldredge & Clark has established ascholarship fund in the name of ~s deceased members. Additions have beenmade to the Charles Eichenbaumscholarship fund, making it the largestfund honoring one individual. Rather,Beyer & Harper has added another$1,000.00 to its scholarship fund making a total of $6,000.00 it has donatedfor this purpose. A number of otherdonations and contributions have beenmade, including several to honor deceased members by placing theirnames on the Memorial Border at theLaw Center.

Our Foundation has been recognized as the leading Foundation in theUnited States. Other states are seeking to duplicate what has been donehere. It has all been accomplished bythe lawyers of Arkansas, but credit

must be given to Col. C. E. Ransickwho has been a strong and innovativeDirector, never tiring and always having our Foundation and Association asthe number one priority in his life.

Sid McCollum of Bentonville will become Chairman of the Foundation inJune by virtue of the automatic elevation provision of our by-laws. He is currently Vice-Chairman. Sid has been aloyal and ever energetic leader of theBar for a number of years. He hasmany good ideas for the Foundation'scoming year and will make an excellentChairman.

I have enjoyed serving as Chairmanduring the past year. Thank you for theopportunity.

Boyce Love, Chairman

ADDENDUM

In line with Foundation ChairmanBoyce Love's comments above, the following lawyers should be added to theFellows' list and to the SustainingMembers' list, published in The Arkansas Lawyer, April 1980:

FELLOWJudge J. Frank Holt, whose name

was inadvertently left off the pUblishedFellows' list.

NEW FELLOWSRobert Batton Jacksonville, ARJames H. McKenzie Prescott, ARA. Glenn Vasser Prescott, ARSearcy W. Harrell, Jr. Camden, AR

NEW SUSTAININGMEMBERSHIP

J. L. Shaver, Jr. Wynne, AR

f.....

CODE Of

PROfESSIONAL RESPONSIBILITY

COMMINGLING FUNDSMany complaints involving the manner in which lawyers

have handled funds for their clients are caused by poor lawoffice management rather than by misappropriation or misuse of clients' funds, Often, the lawyer knows that the fundsor property of the client have been properly preserved, but,due to poor office management, he is unable to demonstratethis fact or make prompt disposition of funds or property.Further, regardless of good intentions, if in fact the client'sfunds or other property have been commingled with those ofthe lawyer, there would be a violation of the Code of Professional Responsibility.

The handling of funds by a lawyer is governed by Disciplinary rule 9-102(A) as follows:

"All funds of clients paid to a lawyer or law firm, otherthan advances for costs and expenses, shall be depo-

sited in one or more identifiable bank accounts... andno funds belonging to the lawyer or law firm shall bedeposited therein except as follows: (1) Fundsreasonably sufficient to pay bank charges may bedeposited therein... [and] (2) Funds belonging in partto a client and in part presently or potentially to thelawyer or law firm must be deposited therein, but theportion belonging to the lawyer or law firm may bewithdrawn when due unless the right of the lawyer orlaw firm to receive it is disputed by the client, in whichevent the disputed portion shall not be withdrawn untilthe dispute is finally resolved."

Every lawyer and law firm should establish office management procedures designed to insure clear accountabilityfor all funds and other property of each client.

Refusing To BeDischarged By A Client

A related complaint is that the lawyer, who has beeninformed of his client's desire to retain other counsel, refuses to withdraw from the representation when requestedto do so by the client. This refusal is often predicated on theerroneous assumption that it is justified by an existinglawyer's lien for his fee. There is no authority for such aposition under the Code of Professional Responsibility. Disciplinary Rule 2-11 O(S) states:

"A lawyer representing a client before a tribunal, ...and a lawyer representing a client in other mattersshall withdraw from employment, if:... (4) He is discharged by his client."

Withdrawal from representation is mandatory upon discharge by a client.

Disciplinary Rule 2-11 0(A)(2) further sets forth the dutiesof a lawyer upon withdrawal from employment, and Disciplinary Rule 2-11 0(A)(3) provides:

"A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that hasnot been earned."

A lawyer can avoid this type of complaint by promptlytaking the necessary steps to withdraw from employment assoon as a client has indicated to him that his services are nolonger desired. If the lawyer wishes to assert a statutory orcommon law lien or recover any unpaid portion of his fee, hemust rely on the civil procedures available for assertion ofsuch rights. f-...


EXECUTIVE COUNCIL NOTESby James A. Buttry

Secretary-Treasurer

At its meeting of December 15, 1979,the Executive Council acted on anumber of matters which have been ofinterest to the Association for sometime and many of which presaged action by the House of Delegates at itsJanuary meeting.

The Judicial Poll surfaced again.Judge Dean Morley reported for theJudicial Poll Committee. Judge Morleyreported that the Judicial Council wasgenerally in favor of the Poll andseemed to find it helpful. On motion byPresident Cox the recommendations ofthe Committee regarding procedureand format for the Poll were unanimously approved. (As you know, theHouse did not take action and the Pollhas been mailed to the membership,and the results are being tabulated.) Adiscussion ensued regarding whetherthere existed a "gag rule." PresidentCox stated that the Association oughtto oppose a gag rule and, if it continues,should develop some method wherebyinformation developed by the Pollcould be made available to the public.Robert Serio moved that it be recordedas the sense of the Council that thepurpose of the Poll be regarded primarily as educational, as opposed topolitical (as set forth in the Smith letter).The motion passed unanimously. WebHubbell moved that it be recommended to the House of Delegates thatthe Judicial Poll Committee prepare,for exposure and review, a poll of thetype that should be made, with its results, available to the public. The motion passed unanimously.

President Cox reported that he hadadvised the Arkansas Supreme Courtof the recommendations of the Association, as approved by the House,regarding changes in the proceduresand responsibilities of the Court and164/Arkansas Lawyer/July 1980

the Court's Committee on ProfessionalConduct regarding professional ethicsand discipline matters. The recommendations approved by the Housespecifically deal with publication of actions taken by the Committee on Professional Conduct, the adoption of procedures for the handling of client matters for lawyers who die, becomeincapacitated or become disabled, therendering of advisory opinions, the restructuring of the Committee onProfessional Conduct and the issuance of guidelines regarding thehandling of client trust funds. (TheCourt recently announced changes inits policy regarding publication of proceedings.)

President Cox introduced Mr. DonHollingsworth who described the goalof the Legal Services Corporation withregard to Arkansas, the goal being toprovide legal services to poor personsin every county in Arkansas by the endof 1981.

Tom Overbey appeared before theCouncil and reported on the SupremeCourt's rejection of the Association'sspecialization plan. He reported thatthe rejection of the Court appeared tobe on two grounds: (1) The type of plan.The Court indicated that it would prefera certification plan over a designationplan. (2) Timing. The Court indicatedthat the Arkansas Bar was not yetready for specialization. President Coxrecommended that the Court be madeaware of the problems and the need forsome kind of specialization plan.Wayne Boyce pointed out that the Association's Committee had workedlong and well to produce the plan andthe petition which was presented to theCourt, and a spirited ovation was givenTom Overbey and the Committee. It isbecoming more and more apparent

that specialization has becomeanother issue that will not go away untilit is resolved in some way.

Don Schnipper reported on activity inthe federal district courts in Arkansaswith regard to the recommendations ofthe American Bar Association DevittCommittee. He referred to the proposalaccepted by the judges for the EasternDistrict of Arkansas. There was somediscussion of whether there would bean attempt to implement a rule that aninexperienced lawyer could not try acase in federal district court unless hewas assisted by a more experiencedlawyer. The question was raisedwhether this was intended by thejudges and whether the federal courtshad the power to implement this typerule. On motion by Bill Bridgforth, it wasunanimously agreed that the "judicialcritique" portion of the recommendations would be recommended to theHouse of Delegates for approval.President Cox moved that the LegalEducation Committee speak out andask 100 lawyers in the State to assistas assistants in the program. That motion passed unanimously. (The Houseapproved the recommendations intheir entirety at its January meeting.)

John Gill reported on Lawpac. Lawpac is an independent organizationwhich: (1) supports candidates for office and (2) sponsors and supportslegislation of interest to practicing lawyers. Gill stated that there is no federalincome tax reason for having anorganization like Lawpac unless theorganization is involved in the supportof candidates for office and that thesupport of candidates for office is a badidea. He recommended, therefore, thatLawpac be permanently tabled. BillWilson pointed out that the Associationdid not have the influence in the Legis-

lature that it ought to have and that iflawyers are to have a full time lobbyistLawpac, or something like Lawpac,would probably be necessary. Pres,dent Cox stated that he agreed with BillWilson. A motion by Gus Walton wasaccepted to the effect that the PoliticalAction Commillee make specificrecommendations to the House ofDelegates at its next meeting with regard to the retention of a lobbyist andhow that effort might best be funded.That motion passed unanimously.(And the House, at its January meeting, approved the idea of monthly contributions to a special fund for the support of a lobbyist.)

Tom Ledbetter reported on Bar related title insurance. He described theconcept: that the lawyer should be involved in every aspect of a real estatetransaction. He stated that the trendwas away from title opinions and in thedirection of title insurance. He pro-'posed: (1) that a title insurance company be formed. (2) that the title insurance company be a separate corporation, (3) that membership in the company be limited to members of the Association, and (4) that there be assessed a membership fee of $50, with thepurchase of subordinated debenturesfor $200 each, with a ten-year payouton the debentures. He stated that premiums for Bar related title insurancewould be less than premiums for acommercial company and that Bar related title insurance is different fromcommercial title insurance in that withBar related title insurance title opinionsare prepared and are prepared by lawyers. He stated that it was appropriatethat the Executive Council give its approval to go forward. Tom Ledbettermoved that upon approval by theHouse of Delegates (which approvalwas given in January) a committee beauthorized to prepare articles of incorporation for a Bar related title insurancecompany and that it be authorized tosolicit membership from among themembers of the Association. His motion passed unanimously.

Don Schnipper reported that thematter of mandatory CLE may be temporarally moot due to the decision ofthe Arkansas Supreme Court to rejectthe specialization rules. There areserious reservations about attemptingto carry out mandatory CLE withoutspecialization. President Cox referredto his remark in the last addition of theArkansas Lawyer. He stated that he

has done a "180 degree turn" and nowbelieves that the Association shouldbegin to develop some kind of mandatory CLE program. Wayne Boycepointed out that the approach must bemade through the Arkansas SupremeCourt and moved that it be recommended to the House of Delegates thatthe Legal Education Committee pursuethe matter of mandatory CLE with theArkansas Supreme Court. The motionpassed unanimously. (This recommendation was also approved by theHouse at its January meeting.)

Regarding the most highly publicized maller to come before theCouncil in some time, President Coxpointed out that, particularly in view ofthe resolution presented for consideration by the House of Delegates regarding the recent events in Federal DistrictCourt for the Eastem District of Arkansas, regarding charges of racism andJUdge Elsijane Roy's disqualification,he had invited Mr. John Walker and Mr.Eugene Hunt to appear before theExecutive Council. The resolution involved was referred to as ResolutionNo. 80-1. A transcript or partial transcript of the proceedings in JudgeRoy's court was presented. Mr. Walkeroffered to read the transcript and didso, discussing the ci rcumstances preceding and surrounding the hearingand the colloquy which took place. BillWilson suggested that a resolution beadopted generally in support of JudgeRoy and without reference to JohnWalker or to a particular case. RobertSerio moved that Resolution No. 80-1receive from the Executive Council a"do not" pass, and that motion passedunanimously. Wayne Boyce movedthat the Council express its confidencein Judge Roy as a jurist qualified andwithout bias or the appearance of bias.Sid McCollum, a member of the Resolutions Committee in attendance, suggested the Council ought perhaps toallow further facts to develop. A general discussion took place and ultimately the Council adopted unanimously a motion by President-ElectPhil Carroll which stated:

It is the considered judgment of theHouse of Delegates of the ArkansasBar Association that the federal judiciary in the Eastem District of Arkansas, including Judge Elsijane T. Roy,are fully dedicated to the principles ofequal justice under law for all citizenswithout regard to race, color, sex orcreed; and it is the judgment of theHouse that statements made against

Judge Roy and the federal courts inArkansas were whOlly unjustified; andthe House of Delegates commends thejudiciary of the Eastern District of Arkansas for its unswerving dedication tothe principles of the United StatesConstitution and statutes enacted pursuantthereto designed to protect equaljustice under law, and that it deploresintemperate and ill-advised conduct onthe part of any attorney which wouldundermine the public trust in the fairness and impartiality of the federal judicial system in Arkansas.

As is well known, the House tabledthe matter at its January meeting.

Sign OffThis is my last column as Secre

tary-Treasurer of the Association, and Isign off with deep regret. It has been astimulating and rewarding experienceand an opportunity for which I shall always be grateful. The Associationdeals continually with matters that areof great importance to the Bar and thepublic-of greater importance, onesuspects, than is realized by manymembers of the Bar. Decisions involving advertizing, specialization, theavailability of legal representation,ethics and continuing legal education,for example, will have great impact onthe Bar and the public, perhaps for alltime, and it is essential that the organized Bar be involved in those decisions. In my opinion, the active, andsometimes aggressive, involvement ofthe Bar in these and other decisions isnecessary if the practice of law is tocontinue to develop in ways that are inthe interest of lawyers and the pUblic.And an informed and well-led Association is the only effective means whereby the Bar can be represented. Onecannot but conclude that having an informed and growing membership andcontinually growing support of the lawschools in the State provide the key tothe Association's power to act in leading the Bar through the 1980's. Theaspect of my tenure that Iwill recall withthe strongest feelings is that of association with those lawyers who haveworked hard and effectively to servethe Association. The memories ofcommon effort with two outstandingPresidents, two outstanding Chairmenof the Executive Council and an outstanding Director will always be warmand rich. We have been blessed byleadership beyond any1hing that wecould have claimed by right.~


------------ - - -- ---

HORST FISCHER WELCOMES

THE LAWYERS OF ARKANSAS

TO

ARKANSAS BAR ASSOCIATION'S

82nd ANNUAL MEETING

JUNE 4-7, 1980

ARLINGTON HOTEL, HOT SPRINGS

NEW GENERAL MANAGER AT THE ARLINGTON HOTEL

Horst H. Fischer, previous general manager of the WaterTower Hyatt House in Chicago, is the new general managerof the Arlington Hotel, according to Houston Burford, general manager of Southwest Hotels.

Fischer succeeded Edgar A. May who retired as generalmanager after 27 years of continuous service. May willremain at the Arlington as a consultant through Dec. 31,1979.

His successor, Fischer, has been affiliated in managerialpositions with the Hyatt Hotel organization for the past fouryears in Dearborn, Mich., and Chicago.

Prior to that affiliation, Fischer served as food and beverage director of the Chase-Park Plaza Hotel in SI. Louis, andl66/Arkansas Lawyer/July 1980

as general manager, food and beverage director of thefamous Sea Pines Plantation Club Resort at Hilton HeadIsland, S.C.

Born in Berlin, Germany, in 1939, Fischer received hisfood and beverage managerial training in leading hotelsthroughout Switzerland in Geneva, Burgenstock, Locarno,Flims and Vulpera.

When asked what brought him to the Arlington Hotel,Fischer replied, "My family and I have fallen in love with thebeautiful mountains, lakes, and forests of Arkansas.

"We want to do all we can to share with guests of theArlington the many special food and beverage services wehave presented around the world."

ADDENDAby C. E. Ransick

Editor

Cover Story .

July 4thWe have tried to come up with a cover for the July issue of

the Arkansas Lawyer-a cover which remembers the heritage of the United States.

Few remember that Thomas Jefferson died at Monticelloon July 4, 1826--the 50th anniversary of the adoption of theDeclaration of Independence-murmuring "This is theFourth". With his last breath, he remembered.

With this painting, "Nine Very Human Men", artist Dan F.Howard of Lincoln, Nebraska, fittingly shows the Americanflag in the background. With the theme of Country and Court,we remember the Fourth of JUly.

This painting is another from West '79/The Law, thenational art competition and exhibition of contemporary artreflecting aspects of the Law, sponsored by the West Publishing Company in cooperation with the MinnesotaMuseum of Art. We are privileged to have the permission ofthe West Publishing Company to highlight the artworks fromWest '79/The Law.

YOUNG LAWYERS SECTIONThe Young Lawyers Section of the Arkansas Bar Associa

tion has received from the American Bar Association'sYoung Lawyers Division $2500 to undertake a public information project on the proposed Arkansas Constitution. TheYLD's Affiliate Outreach Public Service Grant Program is anational competition. Our YLS is to be congratulated.

Basis for the award is a planned YLS Speakers Bureau,which will provide speakers on the Constitution upon request. Presentations will be non-partisan and informationalin nature. The speakers will be given an advance orientation.

A mailout to all members of the Arkansas Bar Associationwill solicit volunteers for the Speakers Bureau.

As stated in the award announcement, the project "promises to provide a great service to the people of Arkansas".The project will also provide our members a great opportunity for pUblic service.

CAVEATThe Association's House of Delegates, at its September

15, 1979 meeting, voted unanimously to have AssociationPresident E. Harley Cox, Jr. request the Arkansas SupremeCourt to issue guidelines for lawyers' trust accounts. See

Code of Responsibility, this issue of The ArkansasLawyer, for a related decision on "Commingling Funds"under Disciplinary Rule 9-102(A).

In an informal decision, the Court indicated "The Courtdoes not think it appropriate to issue guidelines to lawyersregarding the handling of client's trust funds. The law governing that aspect of a fiduciary's duties does not seem toneed clarification".

However, as pointed out in Mr. Cox's letter of Novemb,;,r19, 1979 to the Court, the Executive Secretary of the Court sCommittee on Professional Conduct and a member of theCommittee have indicated that the mishandling of clients'funds is "probably the largest single basis for complaintsmade against lawyers of a serious nature". In fact, theCourt's client Security Fund Committee paid out at leastseven (7) claims for misappropriation of clients' funds bylawyers in 1978; and four (4) members of the Arkansas Bargave up their licenses to practice law as a result.

The Court has requested that the "difficulties andsuggested corrective measures be sUbmitt.ed to the Court".The Association's Committee on ProfeSSional EthiCS andGrievances is working on the matter.

Arkansas is not alone with this problem. In the Illinois BarJournal (September 1979), General Counsel of the IllinoisState Bar Association Howard H. Braverman published anarticle, "On A Frequently Misunderstood Ethic". He wrote,"One Disciplinary Rule' of the Illinois Code of ProfeSSionalResponsibility which is being overlooked with alarming frequency, or is misunderstood by an alarming number oflawyers, reads in pertinent part:

"DR 9-102 Preserving Identity of Funds and Property of aClient. (A) All funds of clients paid to a lawyer or law firmshall be deposited in one or more identifiable bank accounts maintained in the state in which the law office issituated and no funds belonging to the lawyer or law firmshall be deposited therein...."Two exceptions are usually appended to the rules, I.e.

provisions that a lawyer may deposit funds of his own tomaintain or open a special account, and provisions that alawyer may withdraw funds held in a trust which are due tohim.

What the Rule really says is that lawyers should segregate, and not commingle, client funds with their personalfunds, and that the clients' account should be Identifiable asa fiduciary account, for that is truly the relationship. of theattorney to his client when he is holding funds to which theclient has a right. .

We live in a society where words have meaning and suchterms as "client account" or "trust account" clearly indicateto a third party that the funds therein are trusteed funds andnot the personal funds of the individual lawyer. However, all


too frequently funds from those accounts are used to paypersonal debts or expenses of a lawyer or law firm. Suchaction courts the charge by a third person-it could be aclient, a bank, a realtor or someone else-that the lawyer,did in fact, commingle funds. Of course, in addition to professional embarrassment and Internal Revenue problemswhich may arise, the unauthorized use of someone else'smoney can incur criminal sanctions.

The prevalance of this mislabeling of accounts promptedthe Professional Ethics Committee of the ISBA to issueOpinion 534 (March 9, 1976) wherein it said:

"The distinction between a general deposit and a specialdeposit is well recognized ... (A) trust account impliesthat the deposit is a special deposit, requiring the bank tokeep the deposit separate from its general deposits (Citing 10 Am Jur 2d, Banks, Sec. 363, et seq.)."

Continuing, the opinion says, the use of the term "TrustAccount" by the lawyer, " implies that the funds thereinare solely those of a client DR 2-102(A) expressly pro-hibits commingling of the lawyer's funds with the funds of hisclients."

The Supreme Court of California dealt succinctly with theissue in a 1962 decision' when it stated,

"(C)ommingling is committed when a client's money isinterminglec with that of his attorney and its separateidentity lost so that is may be used for the attorney'spersonal expenses or subjected to claims of his creditors... (T)he rule against commingling was adopted toprovide against the probability in some cases, the possibility in many cases and the danger in all cases that suchcommingling will result in the loss of client's money."(Citing Clark v. State Bar, 39 Cal. 2d 161,246 p. 211)

That someone will rightfully or wrongfully assume thatdebts and personal expenses paid out of a "trust account" or"client account" is commingling should be avoided at allcosts and those members of the Bar of Illinois who mistakenly utilize such titles for personal or firm accounts shouldtake heed and make prompt changes. Certainly the needexists for a iawyer to have a personal account and an officeaccount but they should be properly labeled so that there isno room for misinterpretation by anyone.

"Separation of the funds of a client from those of hislawyer not only serves to protect the client but also avoidseven the appearance of impropriety." (E.C.9-5, ISBA andABA Codes of Professional Responsibility)

The unfortunate aspect of this problem is that, whilemembers of the Arkansas Bar Association have beenoriented about DR 9-1 02(A), other members of the Arkansas Bar have not been so fortunate.

While the subject of Ethics is not a bread-winner forlawyers and is not well received as a subject, a series of localinstitutes around Arkansas is being planned for coverage ofEthics and Malpractice. All lawyers will be encouraged toattend these seminars.~

1. The same or language of similar ifDport appears in DR 9-1 02(A) of theABA Code of Professional Responsibility and DR 9-1 02(A) of the Committee on Professional Responsibility Illinois Supreme Court, December, 1978(Stanley Report).

2. Black v. State Bar, 57 Cal. 2d 219, 368 P.2d 118 (1962).


TAX TIPSby Paul D. Williams

Director, Little Rock DistrictInternal Revenue Service

Collection Policies And PracticesI am sure that my concern regarding the collection of

tax is shared by you and your clients, especially in viewof the availability of funds in the State of Arkansas. Inorder to get a handle on the economic conditions, theavailability of funds, and the lending procedures ofinstitutions throughout the State, I engaged the services of a financial expert from the University of Arkansas at Fayetteville to make a study of these concerns.By and large, the study was very favorable and predicted a strong economic posture in the State. However, as you probably have concluded, it showed thelack of availability of funds in some sections of theState.

You and I realize that quite often when someone ishaving difficully in paying his/her Federal incometaxes, as well as withholding and social security taxes,they are also experiencing financial diffiCUlty in otherfacets of their business operations and personal life. Iwould like to share with you some cautions, as well asprovisions for assisting your clients in satisfying theirtax liabilities.

There are specific policies and practices for collection of delinquent taxes on different types of delinquencies. Small dollar income tax delinquencies on ataxpayer who has not been delinquent before and iscurrent on withholding or estimated tax payments cannormally be granted an installment agreement. However, once a taxpayer repeats his delinquencies morestringent enforcement action must be taken.

I have had several inquiries and requests not to filetax liens when taxpayers owed Federal Taxes. I canappreciate your client not wanting a tax lien filed but itis necessary to protect the priority of the Governmentposition. The alternatives are to file a lien, be furnisheda letter of credit from an approved institution, a suretybond, or the pledge of assets approved for at least oneand one-half times the amount of tax owed. Now as aword of caution-there sometimes is a tendency onthe part of taxpayers who are experiencing financialdifficulties, to "stretch" their ability to pay to the extentthat they pay net salaries to their employers and do notpay the social security or withholding tax to the FederalGovernment. The failure to withhold and pay over trustfund tax is a misdemeanor under Section 7215 of theInternal Revenue Code.

We will work with you and your clients in any waylegally possible to prevent this type of action. II is myresponsibility to ensure that, to the extent possible,taxes owing to the Federal Government will be timelypaid or other appropriate arrangements made. Enforced collection action is a costly process. Be assuredthat my Collection Division people will work with youand your clients to avoid this type of situation whereever possible.

Paul D. WilliamsDistrict Director

f.....

ATTORNEY'S ECONOMICCONSULTANTS

"A Division of Education andResearch Associates, Inc."

SERVING THE LEGAL PROFESSION WITH EXPERTISE INTHE FOLLOWING AREAS:Workmen's Compensation (Lump-Sum Settlement Calcula

tions)Evaluation of Lost Earnings Capacity from Partial or Total

Permanent Disability or Wrongful DeathEconomic Valuation of PecUniary Damages in BusIness Tort.

Contract and Anti-Trust CasesChapter 10 & 11 Bankruptcy Reorganization PlansValuation of Minority Stock Holdings in Estate SettlementsValuation of Future Earnings Capacity lor Stock IssuanceEconomic Analysis for Charters or Branch Applications for

Financial Institutions

QUALIFIED AS EXPERT WITNESS INARKANSAS AND

OTHER JURISDICTIONS1209 Rebsamen Park RoadLittle Rock, Arkansas 72202

(501) 661-0161

MISSING

AND UNKNOWN HEIRS LOCATED

NO EXPENSE TO THE ESTATE

WORLD-WIDE SERVICE FOR

COURTS - LAWYERS - TRUST OFFICERSADMINISTRATORS - EXECUTORS

American Archiue:J A:J:JocialionINTERNATIONAL PROBATE RESEARCH

449 WASHINGTON BUILDING

WASHINGTON, D. C.

Service Directory

PARAGONPrinting & Stationery Company

has been printing BRIEFS for over 35 years.May we be of service to you?

311 East Capitol 375-1281Little Rock

*****

BEACH ABSTRACT & GUARANTY COMPANYREPRESENTING:

PIONEER NATIONAL TITLE INS. CO.ABSTRACT&-ESCROW&-TITLE INSURANCE

100 Center SI. - Little Rock. Ark. - FR 6-3301

* * * * *VIDEOTAPE SERVICE

Videotape expert witnesses, scene of the event, orday in the life for increased jury expectancy. Forinformation & rates contact: Bob Ketchum at CedarCrest Studio (501) 425-9377.

_-o""~O

ANNUAL MEETINGArlington Hotel, Hot Springs

June 4-7

FALL LEGAL INSTITUTECamelot Inn, Little Rock

September 1B-20

MIDYEAR MEETINGCamelot Inn, Little Rock

January 15-17

NATURAL RESOURCES LAW INSTITUTEArlington Hotel, Hot Springs

February 19-21

july 1980

Documents

arkansas barassociation

arkansas bar center

arkansas lawyer usps

west markham

law school news

maximum of service

good treatment

annual meeting