awerLouis B. Jones, Jr.A New President

for1999-2000

lA

nsase3(, .3

•ounc:.a..a.~3powe new

Ke ite features:Statute citator with Vlkst annotations andexclusive Pending Legislation featureCoverage for aliSO states, USCA' and CFR, complete with Notes of Decisionsprepared by West attorney-editors. View pending bills that may affect your USCAsection' FREE usage through September 15,1999 for all new and existing customers.'

Ke~ite Alert offers you up-to-the-minutetracking ofcases, statutes and moreKeyCite Alert aULomatically informs you of important developments affecting the

cases and statutes that matter to you.FREE monitoring through September 15,1999 for all new and existing customers.'

NLRB: Full coverage of the official versionOnly KeyCite' and Westlaw' give you all citing references to the official version ofNational Labor Relations Board decisions and the ability to display those referencesin full text

You'll fmd them onlyonWestlaw

INFORMATION ON YOUR TERMS.

For more information on accessing these new features, call 1-800-937-8529.

• Does not Include document retrieyol.

n.• lIoc1.motl. o.hc>wn ...,"',n 018 uMd und.< k .....elm ........ G<oup 2998J.l/I..99I99J2561

Boncroh.Whitney • Clork 6oordmon Callaghanlawyers CoopCIrOlive Publishing. West\ow·. Wesl Publishing

...•WESTGROUP

VOLUME 34, NUMBER 3

PUBLISHERArkansas Bar Association

Phone: (SOl) 375-4606F.,e (501) 375-4901

Homepage: www.arkbar.comE-Mail: cunderwood@arkbar.com

ARKANSAS BAR ASSOCIAnON

400 W. \larkham lJltle Rock, Arkansas 72201 on en s

Laying the Gtoundwork forChange

"Too Plain to Be Misunderstood:" Sovereign Immuniry in Arkansasby JeffBroadwater

EDITORCAlhy Undmuood

ASSOClATE EDITOR,GRAPtUC DESIGN

Sara umdis

EDITORIAL BOARDDavid H. Williams, Chair

Wiley A. BrantonThomas M. Carpenter

Morton GitelmanJames C. Graves

Jacqueline J. JohnstonLucinda McDaniel

Thomas H. McCowanJacqueline S. Wright

OFFICERSPresident

Louis B. mucky) Jones, Jr.President-Elect

Ron D. HarrisonImmediate Past President

Robert M. Cearley, Jr.Secretary -Treasurer

H. Murray ClaycombExecutive Council Chair

Christopher BarrierParliamentarian

Marie-Bernard... MillerYoung Lawyers Section Chair

Baxter SharpExecutive DirectorDon Hollingsworth

Associate Executive DirectorJudith Cray

EXECUTIVE COU CilWilliam M. Clark, Jr.

F. Thomas CurryThomas A. DailyKay West ForrestLance B. GamerRon D. Harrison

Dave Wisdom HarrodKnox B. Kinney

Edwin N. McClureLance R. Miller

Michael W. MitchellCharles C. OwenBrian H. RatcliffJames D. SprottDanny ThrailkillR. Scott Zuerker

EXECUTIVE COUNCIL LIAISON MEMBERSAlice Holcomb

Bradley D. JessonHarry Truman MooreJudge Bentley F. Story

Carolyn B. Witherspoon

The Arbnsas Lawya (USPS 546-0W) is published quarterlyby the Arkansas Bar Association. Periodicals postage paid atUttle Rock. Arkansas. POSTMASTER: send addresschanges to The ArblllSQS LiIwytr, 400 West Markham-lillieRock, Arkansas 72201. Subscription price 10 non-membersof the Arkansas Bar Association $25.00 pet" yNr. Anyopin­ion expressed herein is that of the author, and not necessari­ly thai of lhc Ark.,nsas Bar Association or The ArkansasLawyl'1'. Contributions to The ArkllllSQ$ lAwyer are wel­come and should be sent in two copies 10 EDITOR,. TheArlrJlllS4U Lawyer, 400 West Markham, UttJe Rock. Arkansas72201. All inquirit5 regarding advertising should be sent toEditor, The Arka/lS,lIs tllwyer at the above address.Copyright 1999, Arkan<>as Bar Association. All rights

"""""'.

On Ihe Cover: The caricature ofBucky was designed by LittleRock cartoonist George Fisher.Can you find 'Snooky"?

GOVERNMENT PRACTICE

From the Government Practice Section Chair

byJeffBroadwa"r

Why Bother Wi,h Bonds?by M. Jall< Dickey

Supreme Court Approves New L.1.wyer Advertising Rules

Receor Developmencs in SexuaJ Harassmenr Law"How <he Rules of the Game Have Changed"by Shawn D. Twing

In This IssuePRESIDENT'S REPORT, by LOllis B. "DlIcky" Jones, JI:

EXECUTIVE DIRECtOR'S REPORT, by Don Hollingsworth

ASSOCIATION ACTIVITIES

MEMBER BENEFITS

LAW OFFICE TECHNOLOGY

CLE CALENDAR

YOUNG LAWYERS SECTION REPORT

JUDICIAL ADVISORY OPINIONS

LAWYER DISCIPLINARY ACTIONS

IN MEMORIAM

CLASSIFIED ADVERTISING/INDEX TO ADVERTISERS

"HopefUlly we willmodernize, streamlineand depoliticize ourjudicial system. "Loltis B. "Bltcky"jones, jr.

by Sara Landis 24

10

12

16

20

30

234

6

814

2938

394748

l'I'I'sidl'nt's IIl'plll't

The 4 P'sby Louis B. "Bucky" Jones, Jr.

'This past year's effortswere focused sharply on

improving and enhancingour professional compete1lcies,

ethics, integrity,and the justice system.

Dur;,'g the comingyearwe will continue

the fine work oftheTask Forces on Lawyer

Admission and Disciplineand Unauthorized

Practice ofLawably chaired byBill Bridgforth

and Brad He1ldricks. "

fbe ,Irkma.! La~!1r fol. Hlo. I/Solmer 1919

As we move toward the end of this cen­rury and the beginning of a new millenni­um. you have entrusted to me the honorand privilege of leading our Association atthis critical and historic time. In reflectingon my career(s) in private practice, legal ser­vices and higher education that havebrought me to this point. I realized the"common thread" throughout my profes­sional life has been my membership andparticipation In the Arkansas BarAssociation.

I am proud of the history and tradition ofthis organization. During our centenniaJyear we recognized and celebrated onc hun­dred years of professionalism. This past

year's efforts were focuscd sharply onimproving and enhancing our professionalcompetencies. ethics, integrity. and the jus­tice system. During the coming year we willcontinue the fine work of the Task Forces onLawyer Admission and Discipline andUnauthorized Practice of Law ably chairedby Bill Bridgforth and Brad Hendricks. Wewill also begin the important work of edu­cating and motivating our membership aswell as the public concerning the details ofthe proposed Judicial Article amendment to

our state constitution. Legislative approvaland referral of the Judicial Article wasachieved during the recent legislative sessionunder the able and dedicated leadership ofJudge John Stroud. We can all take pride inthis achievement as well as the developmentof the most effective network of BarAssociation members and staff. legislatorsand judges in many years. The task in the

coming year will be to lay the groundworkfor voter approval of the Judicial Article inthe general election of November 2000 byinvolving every member in this effon.

We will also be discussing and voting ona proposal to reorganize and redistrict ourassociation to make it efficient, responsive.and representative of our membership. Thiseffon is capably chaired by the inimitableHarry Truman Moore, the past presidentnamed for a past President. We will also belooking at how we appoint, organize. andassign committees, task forces, etc. in aneffon to "prune the bush" of our organiza­tion and make it more responsive.

An applicable quote at this time in histo­ry is "the only conStant is change." Thechanges we have all experienced in our per­sonal and professional lives are sometimesdifficult to comprehend. much less accept.

As we move into the new century and mil­lennium, my hope and goal is to honor thepast while embracing the future. My"theme" will be Pride, Professionalism,Persistence, and Preparation-the 4 P's! Toassist and "counsel" me during the year Ihave asked and thank in advance ChrisBarrier. who has graciously agreed to serveas Executive Council Chair. Thanks also to

my lovely wife of twenty-nine (29!) years,Anita, and our sons, Cliff and Carrer, and

my colleagues at Webster University foryour encouragement and suppon.

Last bur most important I ask for yourpersonal involvement and support, This isyour Arkansas Bar Association and I lookforward to meeting the challenges of theyear ahead as your servant-leader. 9

E\I'l'lItiw lIil'I'l'tlll'\ Hf'plll'l

How Our Association HandlesEndorsements

by Don Hollingsworthe-mail: dhollingsworth@arkbar.com

The Arkansas Bar Association hasendorsed a number of produces and servicesfor its members. ranging from legal researchco insurance. Currently there arc potencialnew endorsements pending as well as thepotential renewal ofseveral. Since memberswil1 sometimes ask how and why theseendorsements are made by the Association,this column will attempt to summarize thebasics of Association endorsements.

The ultimate authoricy for endorsementsis me House of Delegares, which has dele­gated at times final action on endorsementsto the Executive Councilor a specificAssociation commince. A proposedendorsement will have been studied by acommittee which makes a recommendation[0 the House of Delegates. Three commit­tees which have been active in the endorse­ment area recently are rhe Croup InsuranceCommittee, Member Benefits Committeeand rhe Task Force on Legal Research,Publications and Technology.

The primary criteria for any endorse­ment is the benefit to Association members.bom as ro rhe qualiry of me producr or ser­vice and ies COSt. The availability of a dis­counted price for members is always a con­sideration. Most of our endorsements gen­erate little or no income to the Associationthrough royalties or otherwise.

When the Association does deriveincome from any endorsement agreemenes.it wil1 usually be paymem for Associationassistance in marketing the products andservices. Any income from endorsemenes isimportant as a means of keeping our annu­al membership dues at a lower level.

A relevant issue in regard to mostendorsement decisions is whether or not theendorsement is exclusive. Some companieswill only entertain Association endorsemenr

agreements if they are exclusive. Othercompanies may consider non-exclusiveendorsements, but the terms are less favor­able to our members and our Association.

The longest and most expansive endorse­menr arrangement of our Association iswith Rebsamen Insurance Company. Thisrelationship spans over 50 years, and ir wasrecently formalized in a new endorsementagreement approved by the House ofDelegates and Executive Council. There areeighr insurance produces now endorsed bythe Arkansas Bar Association, each of whichcomes with a 5% discount for Associationmembers. (Other premium discounes to

members are given by Rebsamen and C Afor professional liabiliry insurance basedupon attendance at the C A loss controlseminars.)

There are times when a new or renewedendorsement is the subject of intense scruti­ny by the Arkansas Bar Association. Forexample, me CNA professional liabiliryinsurance product was the subject of alengthy review by our Group insuranceCommittee and House of Delegates severalyears ago, including an independent reviewby an impartial expert. The bottom lineconclusion was that CNA and Rebsamencontinued to give our members the bestquality producr and service, including con­tinuing availability of professional liabilityinsurance coverage regardless of market con­ditions. Unlike some insurance companies.there is no cherry picking among Arkansasattorneys.

Another recent example of intense scruti­ny concerns legal research productS for ourmembers. We currencly have member ben­ehrs provided by LOIS and Lexis-Nexis.These benefits will be reviewed again larerthis year based upon the responses to

request for proposals which are being sem to

these twO companies as well as others.It is always important to have me opin­

ions of members about various producesand services. The resulrs of rhe 1998Membership Survey have been helpful inthis regard. The survey rcsules are publishedin rhe Wimer 1999 issue of The ArkamllSLawyer.

There are some products and serviceswhich are definitely desi.red by our membersbut which are nor feasible. Due to markerconditions, our Association does not cur­rencly have an endorsement of a grouphealth insurance plan or a long-distancetelephone service. But the relevantAssociation committees are always willingto review marker conditions, and this isespecially true of the Group InsuranceCommirree in regard to health insurance.

At the time this column was written inMay, our Association was beginning anexamination of a proposed endorsemenrwhich would give members steep discouneson the purchase of office supplies, equip­mem and a variety of other produces, bothjob and leisure related. Such a new endorse­ment will be communicated to all members,and it will be immediately posted on theAssociation's Website: www.arkbar.com.

The list of our current member benefits,inclucling endorsemenrs, can be found atwww.arkbarcom. We welcome your com­menes on these products and services as wellas suggestions for new ones.

The 1999-2000 chairs of rhe three abovecomminees are: Larry Burks, GroupInsurance omminee; Lamar Perrus.Membership Benefits Committee; andSrark Ligon, Task Force on Legal Research,Publicarions & Technology.~

I'll ~j II. ~/SI•• /r Ill! ne ,\rkilID l.i~W ~

CELEBRATE OUR FREEDOM: 1999 LAw DAY ACTMTIES

Shown abovt a~ Sara Luppm and A"d~w Ytmcq. fromIht winning Cmtral High School /tam.

ARKANSAS MOCK TRJALCOM PETITO

The Arkansas Bar Association annuallysponsors a statewide Mock Trial Programfor Arkansas students. What is a MockTrial Competition? It is much like a realcoun trial. Team members, "anorneys" and"wirnesses," prepare a case for trial before ajudge. All competing teams prepare thesame case. Local Teams in a district com­pete and advance to the regional competi­tion. Those winners then vic for the statechampionship. and the state championthen has the option of competing national­ly. For the past four years the Arkansas win­ning team has competed at the nationallevel.

With the help of anorney and teachercoaches, teams prepare for competitionaccording to established rules governingtrial procedures, which are modified fromthose of formal trials. Team members learnthe trial rules, rehearse their own roles in atrial, prepare strategy, and must be able tothink quickly during competition. Teamsare judged on their ability to follow proce­dures and present a plausible case.

This pasr year 52 reams of junior highand high school students from around thestate signed up to participate. Over 75lawyers and judges volunteered to workwith the teams as coaches, or served asjudges or in other capacities to help theteams.

The stare champions for rhe 1999 MockTrial were from Central High School.

Arkal/sas yout", grtUks 9-12 or ag" 14-19.an ~ligibk to comp~u. Em:b Uom mustbove n teacher spOllSor ond should hove Oil

attorl1t!J coach. N~xt year when yOIl areasked to participate ill the Mock TrialComp~tition. be pr~pared to sign 011 andsupport this program.

The Young Lawyers Section of theArkansas Bar Association joined forces withthe Arkansas Association of Legal Assistantsand the Associarion for Arkansas LegalSupport Professionals for the 1999 Law DayPoster COntest and Essay Comesr.

For the Poster Contest, the YLS and theArkansas Association of Legal Assistants(AALA) sent information packets to all pub­lic schools and all 5rh grade studenrs andencouraged them to submit an entry onhis/her interpretation of the Law Weektheme, .. e1ebrate Our Freedom." Over600 posters were received by county barassociations. Local attorneys judged theposters and chose the top three posters fromeach county.

Overall judging was held April 29rh arthe Arkansas Bar Center. The judges werefrom every level of rhe legal sysrem. Theyincluded a third year law student, a UnitedStates District Court Judge, legislarors, legalassistants, and attorneys.

After the winners were chosen, a ceremo­ny was held May 5th ar the Srate Capitol.All the winners, their families, teachers, andprincipals attended the ceremony. The win­ners received a roral of $1,100.00 in U.S.Savings Bonds, certificates or ribbons, andhad their picture made with Arkansas' FirstLady Janet Huckabee. The posters were ondisplay at the Capitol during the entire weekof May 3-7, 1999.

Special thanks to the law firms whichdonated funding for this massive project;CiJism"ali. Nesrrud & julian, PA.; CroIS.Cunur, Witlmspoon & Cau"us, Pc.; Friday.Eldrtdg< & Clark, PA.; and Mite".LI,Williams, S.lig, Caus & Woodyard, PL.L.c.

Special thanks to (he attorneys across thestate. mainly from one-or-rwo-attorneyfirms, who went to the schools, picked uprhe posters, judged rhem and rhen gor rhemto Little Rock. Special thanks. also, to theJudges: jl/dg< William R. Wilson, j" Mauri«Mitd"ll, Esq.; Mark McCarty. Esq.; jim julian,Esq.; R. Marga'" Dobson; Paula AI/tinson.ClAS; RrpmmtatilN! St"" Nap!'"; and DavidSurling, Esq.

This is the third yeas thar rhe YLS andthe Associarion for Arkansas Legal SupportProfessionals (AALS) have sponsored anessay contest for 7th graders enrolled in anaccredited statewide school system. Theessays, which were to be no less than 500

and no more than 1,000 words, were judgedon clarity of writing, reasoning and under­standing of subject matter. The essay topic:Why do we have laws?

The top ten essays were selected by mem­ber> of the MLS and the Young LawersSection, and were then reviewed by the jus­tices of the Arkansas Supreme Court to

select the winning essay.The winner, M. E. Keisha Brusstar of

Ramsay Junior High School in Fayeneville.Arkansas, was presented with a $500 savingsbond which was pardy funded by rheArkansas Bar Association. and was honoredbefore the Arkansas Supreme Coun onThursday, May 6, 1999...

Both tlu Arkansas Association of LegalAssistaltts. Iltc. (AALA), altd AALS tI"Association for Arkansas L~gal SupportProfessionals (form~rly the ArkallsasAssociation of Legal &cretari~s) are 110n­profit. stauwid~ associatiollS for legal sup­port professionals. Both groups supportth~ir mnllbers ill cOluinuing th~ir kglll edu­cation through stminllrs lind n~wskturs.

voluntary nlltiollal certification programslind local study groups. and n~tworking

opportuniti~s. For additional illfonnationrtgardiug AALA. pleas~ coutact PaulaA"dersol/. ClAS (50t) 975-3000. Foradditional infonllation regarding AALS.puns< cOl/tact Kim Cooksty. PIS (870)935-2220.

For the full text of the winning essay,visit the Arkansas Bar Associationwebsite at www.arkbar.com.

Abov~. from kfi 10 rig/H. a~ Dr. L. urry Brussl4r,M.E. Ktishn BrusSl4r, ClJiifJustict WH. "Dub"Arnold, D~annn W Siria. Kayla ShtlJon, andDavid SI"ling.

Retirement Programs

The ABA Members Retirement Programwas designed by lawyers, for lawyers.That' why it provides the options thattOOay's law firms need.

The Program features a wide selectionof investment offerings and plan options,including the new SIMPLE 401 (k) plan,plus comprehensive services lhat caneliminate administrative headaches andfree up valuable, billable time. These arejust a few of the reasons why we currentlyservice over 5,000 plans in the ABAMembers Retirement Program.

The Program offers comprehensive servicesand features including:

• Core Funds

• Structured Ponfolios'Self-Managed Brokerage Accounts• Plan Sponsor Services And Assistance• Participant Services

If you're interested in a retirement programdesigned around your firm's requirements,call: 1-800-826-8901.

OFFICIALLYENDORSED BYTHE ARKANSASBAR ASSOCIATION

AB~

,IIIEMBER'..RETIREM::iNT

PHOC;".AM

.Iu ohtllin a Prosl:leCtus ahout the Progro1l1. learn nhoul ChllrgC$ llnd eXp('nIW!l or s-I>cuk willJ II Plil/l Con!>ultllllt. ('/111 ]-800-826-8901.Bead the prospeCIIl!l ('urefully lX'fore you forwaru or in\t':>t funds. The AHA Members l(etirel11cnt I>rognllll is offered through Slate Slrt't>t Hllnk lind Tnl:,l Cump/IIlY·

AHA MelllUers Herirernclll Progrum • PO !lo.: 2236 • Hoston. MA 02107

Visil our web site at htlp:lluhm.ris.ssgu.com or ('l1Iuil us Ht ul,raprognull@stutcslreet.('om

"II.lI SI. ~ISI••rr 1111 TIe ,lrkul1l Ll~]rr i

I Ullrlulll Li"Jlr l'el.llll.lISelllr 1m

Ill'udllll \1'11 S

LEXIS®-NEXIS® Member Benefit ProgramProvides S% Discount to

Arkansas Bar Association Members

Discount applies to allY size law finn.Discount does not apply if tbe finn has mb­scribed to tIN LEXlS-N£XJS services witbinthe last 6 mOllths. Frre IUCt!SS applies only whellsearcb is peif'onned from witbin tbe subscrip­tioll.

LEXlS a,uJ NEXIS art! regist""d trade­marks alld Xcbange is a tratkmark of RudEun;ier Properties bu., used ullder lunue.Mattbew Bender is n registered tradmlork ofMattbew Bemler & Co. SHEPARD'S is 0 reg­isured trademark ofSHEPARD'S Company.

search engine of the LEXIS-NEXIS ser­vices to a citations productIntegration of parallel citations into asingle search, as well as improved sys­tem navlgauonSHEPARD'S will be exclusive on

LEXIS-NEXIS beginning on July 2, 1999.In addition to SHEPARD'S, subscribers toLEXIS-NEXIS receive:

Free, unlimited training, and the expertadvice of the attorneys, paralegals and

other experiencedrep resen tati ves.Customer servicere prese n ta tI vesarc available toprovide assistance24 hours a day,seven days aweek.

New featuresthat make theLEXIS- EXISservices easier to

use than ever.including LEXIS Case Law Signal, CoreTerms, Selected Text and LegislativeLinking.

• The choice of the LEXIS- EXIS ser­vices using proprietary software, and/orvia the web through the LEXIS-NEXISXchangel'M service at www.1exis.com.To learn more abour the LEXIS-NEXIS

Member Benefit Program, call 800-356­6548 and mention the Arkansas BarAssociation.

Members of the Arkansas BarAssociation are eligible for a five percentdiscount off monthly Rat-ratc subscriptioncharges when they begin a new subscrip­tion ('0 the LEXI5- EXJS services.

Through the LEXIS-NEXIS program,bar association members receive a five per­cent discount ro any subscription servicesthat indude Matthew Bender«' online,SHEPARD'S", public records, EXISbusiness. financial and legislative informa­tion. as well asjurisdictional andspecialty libraries.

.. We feel strong­ly that LEXlS­NEXlS offersmany advantagesto memhers of thelegal profession.and consequendyare offering a dis­count when theybegin a subscrip­tion to our ser­vices," said Renee Circra, Midwesternregion sales director for LEXIS- EXIS.

LEXIS-NEXIS subscribers pay a fixedmonthly rare for JUSt the part of theLEXIS-NEXIS services they need. OnlyLEXIS-NEXIS provides researchers freeaccess [Q virrually any case, law review,article and code omside their LEXlS­NEXl fixed rate subscription when theyknow the cite or statute.

One of the principal advantages of sub­scribing to the LEXJS services is access tothe new SHEPARD'S Citations Service,which provides researche.rs with the fol­

lowing advantages:• Incorporation of the Auto-Citee service

and LEXClTE~ feature into SHEP­ARD'S, vastly increasing access to pub­

lished and unpublished decisions andmaking available the full LEXIS casdawdatabase for citations researchAn innovative FO US1loI feature, which

for the first time applies the powerful

fll. 1I !O. I/Slller 1III TIe lrkmlll,awler 7

tilll Offirr Trrhnolog)

A Lawyer's Use of E-mailby Stan Rauls

"Although the opinionspecifically notes that

usage ofe-mail is consistentwith a lawyer's ditty

u"der Model Rule J. 6to use reasonable means to

maintain the confidmtialityofclient il1fonnatiollJ

the committeediluted the opinion with the

following concludingremarks... "

T he American Bar Association recentlyissued Formal Opinion No. 99-413

regarding the use of unencrypted e-mail.The opinion states that a la\vyer may sendclient informacion by unencrypted e-mailover the Internet without violating theModel Rules of Professional Conducr(1998) because e-mail affords a reasonableexpectation of privacy both from a techno­logical and a legal standpoint. The SrandingCommittee on Ethics and ProfessionalResponsibility relied heavily upon a per­ceived similarity in privacy accorded mail,land-line telephones and facsimiles as com­pared with sratutes applicable to communi­carion through the internet.

Alrhough the opinion specifically noresthat usage of e-mail is consistent with alawyer's duty under Model Rule 1.6 ro usereasonable means to maintain the confiden­tiality of client information, the committeediluted the opinion with the following con­cluding remarks:

Even so, when the lawyer reasonablybelieves that confidential client infor­mation being rransmitted is so highly

s r~ Irlllwl.aM!" Ill. Ill•. MS.lllr 1111

senSl(lVC that extraordinary measures[0 protect the transmission are war­ranted, the lawyer should consult thediem as ro whether anomer mode oftransmission, such as special messen­ger delivery. is warranted.

To rhe exrenr that any meaningful sig­nificance of the opinion survives its con­cluding caveat, the opinion may comfort ananomer hoping ro escape blame for anunauthorilCd disclosure. However, lawyersseeking (0 prevem rather than justifyimproper disclosures are best advised [Q

implement security measures when commu­nicating through rhe imerner.

Criminal sr3CU[es (though intended [Q

have a dererrenr eff"ecc) do nor justify anexpectation that the offending condua willnot occur. AJthough crime is not containedby geographical boundaries, those who wishto test their faith in the deterrent effect ofcriminal statutes need only walk alone atnight in an undesirable neighborhood.

Criminal sratutes are likely to have amaximum deterrent effea upon people nototherwise likely to commit a ctime. For theremainder of the population, such lawsserve merely to punish those criminals actu­ally caughr and processed through the judi­cial system. Reliance upon criminal laws topunish officious intermeddlers on the"information superhighway" overlooks thestatistical improbability that wrongful inter­ception of electronic communication willeven be detected. At any rate, the disclosedinformation cannot be retrieved regardlessof whether punishment is imposed.

The opinion notes that there are risksinherent in any form of communication­mail can be stolen or misdirected, for exam­ple, and relephones can be rapped. Tharanalogy, however, is Aawed. Both the theftof mail and the tapping of telephones carrya stigma in our society which usually derersall but those who are criminally inclined,

incurably stupid or soon to be divorced.Computers. on the other hand, havespawned what seems to be a sizeable subcul­ture that considers theft ofelectronic data tobe a form of entertainment or test of tech­nological skill popularly dubbed "hacking."

More importandy, mail and telephonecommunication are typically point-to-pointtransmissions, but internet communicationtravels through 3 multitude of computers,some of which are the elearonic equivalentof thar undesirable neighborhood and all ofwhich are monitored or maintained by"techies"-the very segment of society where"hackers" happen to be concentrated. (Itmight be fair to note that nor all "techies"are "hackers," but it would seem accurate toassert that all "hackers" are~ to some degree,"techies.") It is not only a technical subcul­tUTe that places electronic data at risk.People, in general. view electronic informa­tion differendy from its printed or spokencounterparts.

As the committee noted, mail can be mis­routed. Bur mail typically enjoys the addedsecurity of an envelope while e-mail is theelectronic equivalent of a postcard whichmay be viewed, copied or altered with littleopportunity for detection. And althoughthe rechnicaJ expertise of computer userscontinues to increase, the margin for elec­tronic error is still far greater than with con­ventional mail. Mail and telephone com­munications are routed through large orga­nizarions with internal safeguards farbeyond those attempted through criminalstatutcs. The internet, on the other hand, isa largely unregulated network of computers,each of which relics upon "the kindness ofstrangers." AJthough internet users mayhave a reasonable expectation of efficiencywhen communicating through rhat medi­um, an expecration of privacy is misplaced .•

The Intem~ent New HireSave Money on Expensive Individual Firm Announcements.

Place Your Announcement in The Arkansas Lawyer.

Once upon a time. there waS a very

busy low office. "Deary me. we are so

Fortunately for the weary. overworked

laW office. the most intelligent new hire knew

overworked," cried the weary associates. "If

only we hod more associates to

assist us in our tasks!"

AlaS. their cries were heard. "I know,"

just what to do! A Firm Announcement in_--.L.~

The Arkansas LmIC)'er would cer-

tainly be the most cost effective

way to reach the majority of the

But how to get the word out to in The Arkansas Lawyer informing the legal

already have!" And so it waS done. given the task to purchase on announcement

snappy-dressing. efficient assistant WaS

And that is how it came to be that a

legal community (much less expensive than

mailing individual announcements)!

weary. overworked associates we

thought the ever-on-top-of-

things manager type. "I'll hire a

new associate to assist the

their peers about this most intelligent new community of the weary. overworked

which course of action to making the majority of the legal community

meetings to discuss just acquisition of the intelligent new hire. thus

led to many high-powered business acumen which resulted in the

hire left the law office in quite a quandary and law office's very forward thinking

follow. green with envy!

It's easy to place your Firm Announcement (a 501-375-4606 or 800-609-5668. and Cathy

new associate. a new portner. a chan~e of

address. etc,) in The Arkansas Lawyer. Call

or Sara will send you all you need to makeUoo'!:-;:;:...{

your collea~ues ~reen with envy!

fll. II XI. I/SlllIIr I. III TIl lrtmn LI~Ilr

OPENNESS, ETHICS &PROFESSIONAliSM IN

GOVERNMENTPRACfICE

A Seminar sponsored by theNEW

Government Practice Sectionof the Atkansas Bar

Association

Government Practice Section

6. 75 CLE Hours' Oc,ob.,. /5, /999UALR Scbool ofLawLitlle Rock, Arkallsas

• The FOI, The Arrorney-CliencPrivilege, and me Work ProductDoctrine in the Public Secror:Federn1 and State Perspectives

The Government Law Office:Roles & Responsibilities

Ethical Issues for GovernmemLawyers

• Professional Problems In

Governmenr Practice: A Viewfrom me Bench

Public Meetings and me FOI

• Lawyers. Judges and Reponers:Handling me High-Profile Case

JOIN! JOIN! JOIN!

FaD KickoffFun for theGovernment Practice Section

following the seminar

II He ,'rkmlll.l~]er I'll. II NI. I/S.ller Ill!

"lAwyers in govenl1lltllt practice

constituu a large and important

segme1Jt oftbe legal profession.

and the new sectioll is intended to belp

tlJe Association serve them

more effictive/y. we are currently

planning a continuing

legal education program for

October /5 ,bar will

focus uclu.sively Oil issues

ofCOllurll to lawy~

representing public agencies. .,

T his issue of Th~ ArkomaJ Lawyn- isdedicated co governmem practice,

and especially to those lawyers who workfor federal, State and local governments. Itis a joim vemure of the edimrial board andStaff of n, Arkansas Lawy" and theArkansas Bar Association's newGovernmem Practice Section. The succes­sor to the Associuion's Public SectOr LawCommittee, the new section represems arenewed commitmem by the Associationro meet the needs of lawyers in the publicsector and CO encourage their membershipand active participation in the Association.

The new section was approved by theHouse of Delegates in October 1998 andheld its first organizational meeting duringthis year's annual Association meeting inHot Springs. The section has about fiftymembers already, twice the size of the oldPublic Sector Law Committee, bur wewant more.

Lawyers in governmem practice consti­tute a large and important segmem of thelegal profession, and the new section isimended to help the Association servethem more effectively. We are currentlyplanning a cominuing legal education pro­gram for October 15 that will focus exclu­sively on issues of concern to lawyers rep­resenting public agencies. This issue ofTh~ Arkansas LAwyrr has rwo articlesaimed at lawyers who represent or practicebefore government bodies. Jane Dickeydiscusses the selection of counsel for apublic bond issue. My article surveys thelaw of sovereign immunity in Arkansas.

Finally, the work of mose who madethe Government Practice Section and thisissue possible-Jack McNulty, Bob Ceatley,Bucky Jones, Sandra Cherry, DonHollingsworth, David Williams, JudithGray, Camy Underwood, Larry Jegley andmany others should be acknowledged.Their work shows that this Associationdoes care abollt the public lawyer.9

Jeff Broadwater

Drafted by the Arkansas Supreme Court Committee on Criminal Jury Instructions

The required standard by pn C\lriam order of the Supreme Court, Arkansas ModelJury Instructions-Criminal. Second Edition brings to the criminal defense lawyer.prosecuror, or judge an official set ofinsuuctions that COYers issues arising most frequendyin criminal cases. otes on Use and Commeno; accompany each instruction. Stay upto date on:

• Introductory instructions covering such matters as the duties of thejudge and jury. the credibility of witnesses. burden of proof, presumptionof innocence. and reasonable doubt

• Evidentiary instructions

• Accomplices

• Criminal attempts, solicitations, and conspiracies

• Defenses and justification

$1402 oolumes, looseleaf, with current supplementi,em# 60190-/1 ©/994Cost of most recent supplement is $50.

Published in a convenient looseleaf binder format, Arkansas Model Jury Instructions - Criminal, Second Edition allows you co simply remove theinstructions you need, make a copy, and rake it to COUrt. For even greater ease, instruction numbers are consistent with the chapter numbering systemin the Criminal Code.

LEXIS L,w Publishing's

ArkansasYour Only Soun:efar ...........OIIeDI

In OM ooorot, all rh< ..... Insyou ......m ""'" oftm,

' .......C.....n.7, I I ,

'Ar' NI, e-t0177'1..1M3

, llrlIAr~;::e-t..,...~~;' ...a-ot1l57'

' ....... 0'" ., ................1l57'

.•.and more!

Always up-tlHlate

Comprehensive and fully annotated

Superior index, convenient softbound fonnat

Get the most comprehensive rules volume available inArkansas-the 1998 edition of Arkansas Court RulesAnnotated. Thi annouted rules volume containsfederal and stare rules chanl.>e5 and annotations to

C3 through February I, 1998.

Its durable. softbound format allows the volume ro berevised and replaced economically each year.Semiannual supplements in the Advance CodeService ensure the most timc:ly reference to ruleschanges and court holdings.

$37.50·1557 pages, softbound, replaced annlUlllyitem #40777·15, ©/998, The State of Arkan.!O.lApproximnte 1996 and 1997 annlUll upkeep was $37.50.

101. II SI. I/S,•• /r Ill! TIe lrkmll Llwjrf II

WHY BOTHER

WITH BONDS?By M. Jane Dickey

YOII donI. have to bt " dty nttOnlty to

nud to know something abou.t municipalbonds.

What do these clients have in common?A cicy that needs a new fire truck orwater system improvementsA developer who needs to constructstreets and sidewalks in a subdivisionor (Q build or acquire an apartmentcomplexA hospital mat needs a new cr scan­nerA college that needs a new dormito­ryAn industry that needs to expand

Answer: They may all be candidares formunicipal bond financing.

WHY USE BONDS?While it is true that using municipal

bonds ro finance capital Improvements ISmorc complicated and involves higherfrom-end COSts than conventional financingwith a bank or ocher insriruejonal lender,there are several reasons your client shouldconsider bonds. If the diem is the State or alocal government, the reason is clear-it isthe only way it can legally borrow money forlonger than a year. A cicy cannot JUSt go to

the bank and get a 36-monrh loan to buy afire truck. l

If the c1iem is a for-profit company or anon-profit organization, it might utilizebond financing for one of these reasons:

Low Interest Rates. If they are issued on atax-exempt basis, rhe imerest rate onmunicipal bonds can be lower than anyother type of financing available becausethe imeresr is excluded from the grossincome of the bondholders for federalincome tax purposes. Even if the intereston the bonds is nor exempt from federalincome taxation, it is exempt fromArkansas income taxes.Access to Capital. A company with limit­ed capiral or a short operating history cangain access to capital marketS otherwiseclosed to it if the bonds are guaranreed bythe Arkansas Development FinanceAuthoriry ("ADFA") or Department of

It Ur "r~lIlll L1MW 111.11 X,.IIS,••rr 1m

Economic Developmenr ("OED").secured by a bank lener of credir, orinsured by a bond insurance company.Ad Valorem Tax Abatemem. A companythat uses a cicy or councy to issue bondsto finance its new industrial facilities hasthe opporruniry to ask mar issuer for awaiver of some or all of the ad valoremproperty taxes on rhe facilities. The agree­ment between the city or county and thecompany is referred to as a PI LOT, forPaymem in Lieu ofTaxes.2

A company or organization will workthrough a state agency, city or county, orlocal facilities board for the issuance ofbonds. The bonds are repaid solely by theprivate beneficiary and not from theresources of the issuer. The issuer serves as aconduit for the private beneficiary, which isthe ultimate obligor on the honds.

LEGAL CONSIDERATIONSThe use of municipal bonds as a means of

raising capiraJ requires investigation imothtee major areas of law:• State Law. The Arkansas Constitution

and statutes must authorize (and musrnor prohibit) the bonds for the imendedpurpose.

• Federal Tax Law. If the imerest on thebonds is to be excluded from the grossincome of the bondholders, the InternalRevenue Code and the I. R.S. regulationsmust be complied with.Securities Laws. Municipal bonds aresecuriries. When publicly offered. federaland scate securities laws as they rdate tolhe municipal securities market must beconsulted. These include antifraud provi­sions, available exemptions from registra­lion, and ocher regulacory provisionswhich have me effect of requiring ade­quate disclosure when the bonds are orig­inally issued and continuing disclosure ofcerrain information and events through­our rhe life of the bonds.In large measure, these cluee areas of the

law must be analyzed separardy. Bonds maybe authorized under Arkansas law for whichno federal tax exemption is available; con­versely, the Internal Revenue Code mayallow tax-exemption for a rype of bonds thatare nOt authorized under Arkansas law.Recently announced increased enforcementactivities of the Internal Revenue Service

and the Securities and ExchangeCommission in the municipal finance areaserve to emphasize the imporunce of com­petent bond counsel.

STATE LAWBonds may be amhorized by legislative

action when they are to be repaid by rentS,user fees, charges, or other revenues.Examples of revenue sources a city mighthave include itS municipally-owned water,sewer, and electric utilities. parking metersand garages, itS airport. and utility franchisefees. Cities and counties must obtain vorerapproval to issue bonds secured by ad val­orem taxes. sales and use raxes. or hotel andrescauranr raxes. and me State is likewiseconscrained in pledging tax receipts.

Amendmem 65 to the ArkansasConstitution amhorizes the issuance of rev­enue bonds for capital improvementS of apublic nature, facilities for the securing anddeveloping of industry or agriculture, andother public purposes aurhorized by theGeneral Assembly. If a private business useris involved, however, these purposes are pro­hibited: shopping centers or other establish­mentS engaged in the sale of food or goodsat retail; and these purposes are prohibitedunless the issuance of the bonds has beenapproved at an election: hotels or motels,remal or professional office buildings, orfacilities for recreation or entertainment.

There are over 100 different statutorymemods for issuing bonds in Arkansas, butonly a few of these are of interest to privatecompanies and charitable organizationsseeking conduit bond financing:

Revenue or special assessment bondsunder the Property Owners'Improvemem District Law3 or theMunicipal Properry Owners'Improvement Disuict Law4 for real estatedeveiopmem facilities such as water­works, sewer systems, Street improve­ments, recreational facilities, sidewalks,gas pipelines. relephone lines. and ruralfire departmentS;

• Revenue bonds under the Public

Facilities Boards Act5 for a variery of cap­ital improvement facilities. includingthose for health care, residential housing,

off-street parking. recreation and thetouriSt industry, waterworks, sewers.energy, education, emergency medicalhealth care, and hydroelectric power;Industrial development revenue bondsunder the Municipalities and CountiesIndustrial Development Revenue BondLaw (also known as "An 9")6 or the

Economic and Industrial DevelopmentRevenue Bond Law of 19857 for securingand developing industry;

• Revenue bonds for tourism projecrs8 (bur

nOte the restrictions in Amendment 65)9;Revenue bonds for the elimination ofurban blight and decay and provision ofmodernization and general improvementof properties within a central businessimprovement disrrict lO (but note therestrictjons in Amendment 65); and

• Revenue bonds under the ArkansasDevelopment Finance Authority Act ll

for a variety of purposes including agri­cultural businesses, capital improve­ments. health care. and industrial enter­prises.A common thread in almost all of the

Arkansas statutes authorizing the issuance ofconduit bonds is that they authorize theissuance of bonds for the purpose of financ­ing capital improvements. but not workingcapitaJ.I2

Cities and coumies must obtain voterapproval before they can pledge ad valoremtaxes, sales and use taxes, or horel andrestaurant taxes to the repayment of bonds,but in most cases only local legislative actionis required if the bonds arc to be repaid withrevenues.

WHAT DOES BOND COUNSEL DO?The primary role of bond counsel in a

transaction is to render an expert and objec­tive legal opinion that the bonds are validand enforceable and (usually) that the inter­est on the bonds is excluded from grossincome for federal income tax purposes.Although bond counsel's opinion is deliv­ered at the close of a completed transaction,it is of the utmost importance to involvebond counsel in the planning stages of thefinancing in order to forestall costly, time­consuming, and even "fatal" errors.

Bond counsel's client is usually-but notalways-the issuer of the bonds. It is helpfulto have a written engagement letter to forma clear understanding of which party bondcounsel represents. who pays bond counsel'sfees, and bond counsel's role in the transac­tion.

Bond counsel typically acts as the directorand prime mover of a municipal bond trans­action, starring with the identification ofrelevant legal issues, preparation of most ofthe documentation, negotiation of the termsof the transaction. and supervision of anorderly closing. Bond counsel also can pre­pare election proceedings, assist in obtainingnecessary governmental approvals andexemptions. supervise publication of noticesand ordinances, consult with the clientabout the stfUcrure of the bond issue. pre-

pare portions of the public offering docu­ment (called an "official statement"), assistin presentations to rating agencies and bondinsurance companies. review the bond pur­chase agreemenr. and occasionally draft leg­islation. Other lawyers are often involved inthe financing, representing other parries.such as special tax counsel, underwriter'scounsel, issuer's counsel, disclosure counsel,trustee's counsel. and counsel to the conduitbeneficiary.

ARKANSAS PROFESSIONAL SERV­ICES PROCUREMENT STATUTES

The State of Arkansas and its politicalsubdivisions are prohibited from using com­petitive bidding for the procuremenr oflegaland other professional services. Instead, theissuer "may encourage firms ... to submita.nnual statements of qualifications and per­formance data . . . or may request suchinformation as needed for a particular pub­lic project."13 Firms are evaluated accordingto mandated criteria and negotiations arethen undertaken with the best-qualifiedfirm. 14

The key elements set out in the statuteare experience and technical competence.service delivery capabilities, past record ofperformance. and proximity to and familiar­ity with the area in which the project islocated. These criteria are equally appropri­ate when bond counsel is selected by a con­duit beneficiary rather than the state or localgovernment. tn either case, more subjectivemeasures of a firm's abilities and quality ofwork should also be considered, such asthoroughness. creativity. integrity, motiva­tion, service, timeliness. ability to work withOthers, response to pressure, and otherintangibles.

A special commirree of NationalAssociation of Bond Lawyers has preparedThe Selection and Evaluation of BondCounsel to provide guidance to issuers in theselection of bond counsel and evaluation oftheir services. This publication includesexamples of questions to include in a requestfor qualifications. Copies of the 1998 edi­tion may be obtained from NABL at a costof $20 for nonmembers (J 761 SouthNaperville Road, Whearon, IL 60187, tele­phone (630) 690-1135, fax (630) 690­1685, email nabl@ntsource.com).

Endnotes1. A proposed amendment to the Arkansas

Constirurion ro permit shorr· term borrow.

ing by cities and counties on a more busi-

nesslike basis will be on the November 2000

general election ballot. 1999 H.J.R. 1012.2. S(t Pulaski County II. jacuzzi Bros. Div., 332

Ark. 91, 964 S.W.2d 788 (1998).

3. § 14-93-124 " "q.4. § 14-94-123 ""q.5. § 14-137-115 ""q.6. § 14-164-206" "q.

7. § 14-164-507 ""q.8. § 14-170-206" "q.9. Butsu Purvis II. Lit& Rock, 669 S.W2d 900

(1984).10. § 14-184-205 tI "q.II. §15-5-301et"q.12. ADFA may issue bonds ro finance working

capital for hospita.ls. Ark. Code Ann. § 15·

5-103(1 I)(B) (Rep!. 1998).13. Ark. Code Ann. § 19-11-802(a) (Rep!.

1998).14. Ark. Code Ann. § 19-11-803, -804 (Rep!.

1998).M. Jane Dickey practiceswith the Rose Law Finn inLittle Rock and focusesher practice on MunicipalFinance. She is a pastpresident of the NationalAssociation of BondLawyers.

MEDICAL EXPERTS

Timely Response

Professional Matching

All professional speciaiities­OB/GY ,ORTHO,

NEURO, PEDS,SURG,ONeOL,

NUR HOME, RADIOL.

YOur success is our goal.

Let our 16-year experienceprovide you credible,

board-certified,practicing physicians

who we will match your case.

We don't just provide a name,we work for a match!

1-888-336-5127

\'01.11 !o.l/Summer 1999 The lrkansas Lall}1r II

11.1 1If. 11.1. 11.1. 11.1 11.I. 11.1. 111 IU. 11.1: Iu: 11.1. 11.1. IU. 11.1. 11.1 IU. 11.1: IU. IU. 11.1. 11.1. 11.1 IIJ. 11.1. 11.1 1If. III. 11.1 11.1. 11.1: IU.

Arkansas Bar Association CLE CalendarAugusr 6. 1999

CoMMlITER CoMPlITER SCHOOL\Vinrock Inrernarional

Morrilton, Arkansas2.5 Hrs. CLE

Seprember 24. 1999RECEm" DEVELOPMENTS fOR THE

GENERAl PRACTITIONERJonesboro. Arkansas

Co-sponsored with the University ofArkansas School of Law and the

UALR School of Law6.0 Hrs. CLE"

Ocrober 15. 1999OPENNESS, ETlilCS AND PROFESSIONAUSM

IN GOVERNMEm" PRACTICELittle Rock, Arkansas

6.75 Hrs. CLE'

Ocrober 29. 1999ALTERNATIVE D'SPlITE REsOLUTION

Linle Rock. Arkansas6.0 Hrs. CLE'

November 18, 1999CNA: Loss CoNTROLLinle Rock. Arkansas

3.0 Hrs. CLE (2 hrs ethics)

ovember 12. 1999

FALL LEGAL INSTITUTESpringdale, Arkansas

Co-sponsored by the University ofArkansas School of Law

•MONEY & GooD~LENDlNG,

SElU G, CollECTING:DEVELOPMENTS IN THE VCC AND

BANKRUPTCY6.0 Hrs. CLE'

TRIAl AND ApPELLUE

SKI~THE MAGIC AND THESCIENCE

6.0 Hrs. CLE'

Mark Your Calendar.> Now!

Annual Meeting 2000June 14-1-.2000

Best of CLE 2000June 26-jO. 2000

November 18-20. 1999BRIDGING THE GAP

Lirtle Rock, Arkansas15.0 Hrs. CLE (2 hrs ethics)

December 3. 1999HEALTH LAw

Linle Rock. Arkansas6.0 Hrs. CLE "

December 3, 1999CREATIVE EsTATE PlANNING:

BEYOND THE BASICSFayetteville. Arkansas

3.0 Hrs. CLE

December 9-10. 1999FEDERAL TAX INSTlTlITE

Fayeneville, ArkansasCo-sponsored with the

Arkansas Society of CPAs13.5 Hrs. CLE"

*' includes one bour of elh.icsAs II 1m/unlit'} aJJtKiIJr;on, wt tbprnd on you, our mnnbm,to JUppo" our eLEprogramJ. YourfimznciA/ JUpport bmt­fits rvny ArkllnstlS &r Ass«i4tion mnnbtr with f1Jhanudmtmbmhip brnrfits and diKounu as wtU as tht highnt'JUlIN" CLEPtrIflllml in ,Ix JUIl.

See our Website for more program list­ings at www.arkbar.com

.. RcgiSl(~rt..'d ProfessionaJ Engineer in 3 states.

.. 9 rears of experience :lS President of large distribulOr specializing in alltrpes of safety equipment, major emphasis on metal forming and stamping,

.. I I YClrs of experience as President of company involved in repair :lnd rewinding of electricmotors :lnd m:muf.lc(ure. sales, installation and sen'icing of electriC".I1 control panels for industry.

.. 14 re:lrs of experience with General Electric Co. in engineeringand industrial sales.

Earned BS - Electric:11 Engineering in 1947,

Complete curriculum vitae :lnd references on request.

H fbI Irkalml,IW!er 1'01. l·j No. l/S•••er 1999

*

TrOd;/;:; arkansasfindalawyer",Q

A New Online Legal DirectoryTo Assist the Public in Selecting

A Lawyer

For Members of the Arkansas Bar Association

Coming in August to the Association'sWebsite at www.arkbar.com

/ ....l\••• Listings available in over 50 areas of

~~-..".,~ - •~/ practice

Introductory Registration Fee of $25*

$--••••

for the first 17 months (Aug. 99 - Dec.2000)

~.:. Links to law firm Websites at $25**/-_......_""_ ....._1_....-.

••• Can be searched by name, area of...._-_.--_._-~ •-- ~.- practice, city, county, and state

The $25 fee includes five (5) area listings. Each additional area is $10.

** The link to the attorney's law firm Website is $25 per attorney or $100 for

all firm members who register for arkansasfindalawyer

Registration forms are available from the Arkansas Bar Association

400 West Markham

Little Rock, AR 72201

501-375-4606 or 800-609-5668

1'.LlI S'.lfS•••/f Ill! Tl/ ,lr~lIID Li~)/I" Ii

"Too PLAIN To BE MISUNDERSTOOD:"

SOVEREIGN IMMUNITY IN ARKANSAS

"The framers ofthe constitution certainly knew that instances ofhardship would result from the prohibitionofsuits against the State, but they nevertheless elected to write that immunity into the constitution.

The language is too plain to be misunderstood, and it is our duty to give effict to it. "George Rose Smith in Bryant v. Arkansns State Highway Commission, 233 Ark. 41, 44, 342 S.W.2d 415, 417 (I 961).

By Jeff Broadwater

T he doctrine of sovereign immunicy wasa staple of the common law, but

Arkansas is onc of only a few states that hasincluded it in its constitution. Article 5.§ 20 of the Arkansas Constitution providesthat "[t]he State of Arkansas shall never bemade a defendant in any of her courts."The words may be coo plain to be misun­derstood, but they have been at issue indozens of reponed cases, and the ArkansasSupreme Court is caBed upon to interpretthem at virtually every tcrm of courr. Thelanguage of the constirurion is as broad as itis plain, and the language of some of thecases is almost as sweeping. I Sometimes theCourt has gone so far as to say "all suitsagainst the state were expressly forbidden"by the constitution, and to claim that "[tJheonly exception to tOtal and complete sover­eign immunity from claims which has beenrecognized by this court occurs when thestate is the moving parey seeking specificrelief."2 Injured parties whose claims aresubject to sovereign immuniey may seekredress before the State ClaimsCommission}

The doctrine of sovereign immunity hasbeen widely criticized throughour the twen­tieth century as the growth of governmenthas increased the occasions on which scateanion may injure individuals. The moderntrend, at least in those states in whichimmunity is a creature of statute or com~

mon law, as opposed to the state constitu­tion, has been to relax or abolish it:l:

Despite the emphatic language of the con­stitution and some of the cases, the ArkansasSupreme Court has recognized numerousexceptions to sovereign immunity, andrecent decisions suggest that the court hasno particular interest in expanding me doc­trine. Nevertheless, the court, while it has

refused to invoke sovereign immunity in ahandful of intriguing recent cases, has

16 Thr Jlrkans;lll,!II!rr fol.ll,lo.lISumollir 1999

retained ilie core of the immunity defense asit has evolved in this century.

Sovereign immunity originated in thecommon law maxim iliat the king could dono wrong. Bur more modern argumentshave been made in its defense, especiallywhen it is extended to public employees andofficials who might otherwise be held indi­vidually liable for their conduct. JudgeLearned Hand and the treatise writerWilliam L. Prosser believed it allowed pub­lic employees to discharge their duties freefrom the fear of retaliation for unpopulardecisions. Others have argued it helps gov­ernment to attract skilled employees becausetheir potential liability would not otherwisebe commensurate with their relatively lowcompens3tion.5 Under Ark. Code Ann.§ 21-9-203(a), however, the Stare willindemnifY state employees for actual dam­ages assessed against them for injuriescaused while they were acting in good faithwilhin the scope of their employmenr.Although ilie Arkansas Supreme Court hasrarely offered an extensive rationale for theprinciple of sovereign immunity, it is thepossible impact on public finances, or "tap­ping the State's treasury" that may be themOSt important consideration underlyingthe scate's immunity from suit.6 Perhaps themOSt compelling justification for the doc­trine of sovereign immunity today is theargument that public funds, to the extentpracticable, should be appropriated by thelegislature through the political process, notby the courts.

Article 5, § 20 immunity should not beconfused with other types of immunitysometimes available to public agencies and

employees. States enjoy immunity underthe Eleventh Amendment to the UnitedStares Constitution to suits in federalcourt.7 Federal law recognizes a "qualifiedimmunity" for public officials sued under

42 USC § 1983: state officials are protect­ed from personal liability if their actions,though unlawful, are nevertheless objective­ly teasonable in light of the clearly estab­lished law at ilie time of the events in ques­tion.8 The Arkansas General Assembly hasby statute conferred immunity on politicalsubdivisions of the state.9 Officers andemployees of the state are immune fromcivil liability for non-malicious conductoccurring wiiliin the scope of their employ­ment, except to the extent they may carryliability insurance. to

Many of the applications of the sovereignimmunity doctrine are predictable: it mostclearly bars a suit for money damagesagainst the state. J J Moreover, underArkansas case law, where a suit is broughtagainst a state officer or agency over a mat­ter in which the defendant effectively repre­sents the state, the state will be treated as thereal party in imerest if 3 judgment for ilieplaintiff will operate to control the action ofthe state or subject it to liabiliry.12

Other applications of the doctrine mayseem more problematic. Sovereign immu­nity has been held to prevent enforcementof an indemnity clause against the state in alease agreement with a private lessee. It maylimit the amount of a defendant's counter­claim in a suit brought by a smte agency to

the amount sought by the state. A garnisheemay nor seek to recover, in a suit against astate agency, wages garnished for child sup­port paymenrs that were wrongfully collect­ed and expended by the state on behalf ofthe dependent child. A state agency maynot be subject to a fine or restitution to avictim for the actions of a delinquent juve­nile in its custody, although a private citizenacting as custodian would be. A state courtgenerally will not hold a state agency liablefor court costs or attorney's fees. Alandowner may not try to obtain damages

FOR LASEROR

MATRIXPRINTERS

101. HNo. I/Summer Im The Arkaosas I,au)er 11

(800) 937-2938http:www.landtechdata.com

IPAUL D. MIXON, Ph.D, P.E. I I

$1,695.00•Also Available:On Site TrainingDeeds & MortgagesCommitments & Policies

Contact:Dr. Paul MixonP.O. Box 3338Stale University, AR 72467(870)-972-2088E-mail: pmixon@navajo.astale.edu

PAUL D. MIXON, Ph.D., P.E.o Doctorate in Engineeringo Over 13 Years Engineering Experienceo Experienced Expert Witness

LANDTECH DA TA CORPORATION1402 Royal Palm Beach Blvd., Building 200

Royal Palm Beach, FL 33411

ELECTRICAL ACCIDENT INVESTIGATION• Reconstruction and Analysis• Property and Equipment Damage• Personal Injury or Death

r/ HUD 1 Automatic Calculationsr/ Checks & Escrow Accountingr/ Word Processor - Spell Checkr/ Data Base Reportingr/1099S Reportingr/ Regulation Z APR'sr/ Aggregate Escrow

REAL ESTATE SETTLEMENT SYSTEM"The Nation's Most Widely Used"

Now Available For Windows and DOS

ELECTRICAL ENGINEERING CONSULTANT

for properry raken by rhe HighwayCommission by seeking an injunction or awrit of mandamus compelling theCommission [0 initiate a condemnationproceeding. 13

Exceptions co sovereign immunity arevirtually as numerous as the cases in whichit has been applied. If a suit for moneydamages against the state is the classic casefor the invocation of the defense, the case inwhich the state is the moving parry is theclassic exception. The Highway Comm­ission may be enjoined from raJcing proper­ty until an amount of money sufficient to

cover the landowner's damages has beendeposited in court, and when the state seeksan injunction to compel compliance with acostly regulation. the landowner may seekcompensation for the loss in the same pro­ceeding. 14 In fact, sovereign immunity hasbeen held inapplicable to suits to enjoinultra vires, arbitrary or unconstitutionalactions by state officials,15 or to actions fordeclaratory relief. 16 Arkansas courts haverecognized the power to punish criminalcontempt as an inherent judicial power andhave recognized, at least in dicta, criminalcontempt as an exception to the sovereignimmunity doctrine. 17

Despite language in older cases to thecontrary, the legislature can waive the state'sArricle 5, § 20 immuniry and authorize bystatute suits against the state in specific

cases. For example, Ark. Code Ann. § 26­18-507(e)(3) permirs a raxpayer ro sue rhestate after a claim for a refund has been filedand denied or not acted upon. Immunity isnor necessarily available to the defendantwho. although retained by the state. is nor astate official or employee. An independemcontractor may be held liable for negligenceor i.ntentional [OrlS even when acting underthe direction of a state agency that is itselfimmune from SUic. 18

In several recent decisions of varyingdegrees of difficulry, the Supreme Courr hasseemed reluctant to expand the doctrine ofsovereign immunity.19 In Newton v. Etoch. 20

the plaintiff sued a state police officer and adeputy prosecuting attorney for false impris­onment in violation of Section 1983 andstate law. The couer ruled that the plaintiff'sallegations of malice-that, inter alia. thedefendanrs knew probable cause did norexist for the plaintiff's arrest-were sufficientto deprive the defendants of the protectionof the state employee immunity sm[Ute.The court also rejected the argument thatthe defendants were constitutionally

For more information or scheduling,call any of our offices.

MEDIATIONARBITRATION MINI-TRIALS

SUMMARY TRIALS EVALUATIONS

same procedures.Perhaps more significant was Carson lJ.

Weiss,22 which reaffirmed a 1983 decision 23

mat Atticle 16. § 13 of the ArkansasConstitution, authorizing citizens' suits forillegal exactions, controlled the more gener­al sovereign immunity provision. But thecourt in Carson went on to hold that a tax­payer who had not complied with therequirement under Ark. Code Ann. § 26­18-507 that a taxpayer seeking a refund firstfile an amended return with theDepartment of Finance and Administrationcould nevermeless represent a class of simi­larly situated taxpayers. The chancellor haddenied class certification under State lJ.

Staton,24 in which the court had held thateach taxpayer seeking a refund had to com­ply with me statutory requirements beforesovereign immunity would be waived. TheSupreme Court brushed Staton aside byholding simply that Section 26-18-507 didnot apply to illegal exaction suits challeng­ing a tax as unconstitutional on its face,nored that the illegal exaction provision wasself-execllting,25 and remanded the case to

chancery court.Most interesting of the recent cases is

Jacoby v. Arkamas Department ofEdllcation,26 which reversed a circuir courrjudgment mat the state could not be subjectto a claim in state court under the federalFair Labor Standards Act ("FLSA"). TheSupreme Court recognized that under theU.S. Supreme Court's decision in SeminoltTribt lJ. Florida, supra, the EleventhAmendmem would prevent enforcemem ofFLSA claims against a state in federal coun.The Arkansas court, however, quored thatsection of the FLSA which provides thatactions "may be maimained against anyemployer (including a public agency) in anyFederal or State court of competent jurisdic­tion[.J"27 Despite a number of appellatedecisions from other states to the contrary,the Arkansas coun concluded that HiLton v.South Carolina Public Railways Comm­ission,28 holding that a state agency could besued in state court on a Federal Employers'Liability Act claim, and Howlett lJ. RoSt,29holding that a local school board could notrajse state sovereign immunity as a defenseto a Section 1983 claim, supported reversalof the circuit court. Justice Robert L.Brown, in a thoughtful opinion for a unan­imous court, reasoned that similar casesdecided before HiLton, supra, and HowLett,rupra, retained little utility and heJd that thestate could not, consistenr wirh the

Fort Smith501-783-1776

Frank Hamlin

breach of a lease agreement. AJthough mecooperative was organized pursuant to statelaw and funded by the state, the court con­cluded that it was "more closely analogous"ro a school district than ro a state agencyand refused ro allow it to claim immunity.The court nared the cooperatives were orga­nized by school districts, and their employ­ees were hired and terminated using the

Bob Hornberger

Bentonville501-271-2237

Jack Davis

Sid McCollum

Little Rock501-376-2121

INCALTERNATIVE DISPUTE REsOLUTION

immune from suit because they were actingwithin the scope of their duties as state offi­cers. The state law was not a valid defenseto a Section 1983 claim for deprivation ofcivil rights by a person operating undercolor of state law.

Ozarks UnLimited Resources Cooperative,Inc. v. DanieLr21 involved a landlord's suitagainst an educational cooperative for

IS Tbe .lrkanlal Lall}pr l'ol.ll,lo.l/Snmmpr 1919

supremacy clause [0 the federa.lConstitution, refuse to subject itself to theFLSA in its own courts.

The Maine Supreme Judicial CoUrt

reached the opposite conclusion in a similarcase. and in a 5-<0-4 decision handed downthis summer, the U.S. Supreme Courtupheld its ruling that a state could not besued in state coun under the FLSA. Thehigh coun's opinion seems to have effective­ly overruled}acolry. While ir is impossible <0

prediCt the future course of any coun, theFLSA cases clearly suggest that the ArkansasSupreme Coun today is less sympathetic tothe idea of sovereign immunity than is theU.S. Supreme Coun.30 The constitutionaJprovision roo plain to be misunderstoodseems likely [0 generate litigation for yearsto come.O

Endnotes

I. SU gmually, Stau Offic~ of Child Support

Enftrummr v. MireluU, 330 Ark. 338. 345­

46.954 S.W2d 907. 911 (1997).2. Fi"mans fnsurnnct Co. II, Arkansas Stau

Claims Commission, 301 Ark. 451, 455, 784

S.W2d 771. 773-74 (1990).

3. On the Claims Commission, su, Ark. Code

Ann. § 19-10-201 "rcq. The ClaimsCommission as an alternative to a judicial

remedy has survived due process and equal

protecrion challenges. Su, Austin v.

Arkan.sas Stau Highway Commission, 320

Ark. 292. 895 S.W2d 941 (1995). The

appellants in AUftin, who were challenging

the Highway Commission's construction of

a guard rail that blocked access to their

property, raisal on appeal a separ.ation of

powers challenge to the Claims

Commission's authority that the court did

not decide. Su also, James A. Ross, Jr.,

"State Immunity llnd the Arkansas ClaimsCommission," 21 Ark. L &v. 180.

4. SmoJla, "Politics and Due Process Don't

Mix: Should the State Claims Commission

Be Abolished~," 1986 Ark. L Nom 43;

Ross, "State Immunity and me Arkansas

Claims Commission," fUpra, at 180-81;

Waterman, "One Hundred Years ofa State's

Immunity From Suit," 2 Ark. L Rrv. 353;

Eckert, "Another Decade ofState Immunity

to Sui" 1937-1947," 2 Ark. L Rrv.375.Congress waived the United States

Government's immunity from suit in 1946

with the Federal Tofts Claim Act. &~, 28

U.S.c. § 921.

5. Su. &aulieu v. Cmy, 288 Ark. 395. 705S.W2d 880 (1986).

6. NeWlon v. Eloch, 332 Ark. 325. 332. 965

S.W.2d 96 (1995); sec also. Stare v. Swon,

325 Ark. 341, 942 S.W.2d 804 (1996). For

more on the historical and philosophical

basis of sovereign immunity, su, Smolla,

"Politics and Due Process," fUpra at 44--46.

7. Semino" Tribe of Florida v. Florida. 517U.S. 44 (1996).

8. Rogen v. Uterer, 133 F.3d 1114 (8th Cic.

1998). States and stare officers sued in their

official capacity are not persons for purpos­

es of Section 1983. Norfleet v. Arkansas

D~partmmt o/Human S~rvices, 796 F. Supp.

1194 (ED. Ack. 1992), ajf'd 989 F.2d 289(8th Cic. 1993).

9. Ark. Code Ann. § 21-9-30 I.

10. Ack. Code Ann. § 19- 10-305.II. 5«, Cron v. Arkansas LilJatoek a"d Poultry

UtmmisIion. 328 Ark. 255. 943 S.W2d 230(1997).

12. Page v. McKitdq. 196 Ark. 331. 118S.W.2d 235 (1938). Thus. the effect of

Section 21-9-203, requiring the state to

indemnify a state employee for damages

causal by good faith, employment related

conduct, makes the state the real party in

inrerest in a suit against the employee and

can invoke sovereign immunity. B~aufi~tI v.

Gmy, supra.

13. £quikas~ Corporation v. U"iud Staus

Fidelity and Cuacanty Ut.• 262 Ark. 689.

565 S.W2d 125 (1978) (indemnificationdenioi whe...e state sought no recovery

agajnst claimant); Arkamas D~partmmt of

Utrm:rivm v. Day". 254 Ark. 102. 491S.W.2d 602 (1973) (counrerclaim couldnot exceed amount sought by state); Stau

Office of Child Support Enforcemmt v.

Miteh~/l, supra (suit to collect wrongfully

garnished child support payments barroi);

Arkamas D~partmmt of Huma" Snvices II.

Srare. 312 Ark. 481. 850 S.W2d 847(I993) (StaTe could not be made to pay fine

and make restiTution); Rob~rts v. Pri~st, 335

Ark. 137.979 S.W.2d 453 (1998) (se«craryof state nOT liable for special master's fees);

Arkansas 5lau Highway Commission v.

Floke. 254 Ark. 624, 495 S.W.2d 855(1973) (complaint seeking to enjoin state to

commena- condemnation suit "deficient");

Bryam v. Arkansas Stau Highway

CommisIion. 233 Ark. 41. 342 S.W.2d 415

(1961) (Highway Commission not subject

to writ of mandamus).

14. Fosta v. Arkansas StllU Highway

UtmmisIion, 258 Ark. 176,527 S.W2d 601(I 975); Flak~ v. Arkansas 5rau Highway

Commission. 251 Ark. 1084.476 S.W.2d

801 (J 972); Arkamas Stau Highway

Commission v. Parrain, 192 Ark. 127, 90

S.W2d 968 (1936).

15. Arkamas Gam~ and Fish Commission II.

Lindsty. 292 Ark. 314. 730 S.w:2d 474(1987); Utrnmack v. Chalnt",. 284 Ark.

161,680 S.W2d 689 (1984).

16. Commission on Judicial Disciplin~ &Disability v. Digby. 303 Ack. 24. 792S.W.2d 594 (1990).

17. Arkansas D~parrmmt of Human 5uvicn v.

Stau, supra at 488.18. Tri-B Adv~rlising COmp""} I"c. v. Arkamas

Srau Highway Commission, 260 Ark. 227,

539 S.W.2d 430 (1976).19. To be sure. the court invoked sovereign

immunity in Brown v. Arkamas Stau

Hrating. Vmrilation, Air Conditi01ling and

Rqrig~ratioll Licmsing Board, 336 Ark. 34,

_ S.W2d _ (1999), which involved a

suit under the Arkansas Civil Rights Act,

Ark. Code Ann. § 16-123-101, er "q..against the state board that had imposal a

fine on the plaintiffand revoked his license.

But mis was not a close case. The civil

rights suit was dearly one against me state,

which triggered sovereign immunity and

which was also impermissible under civil

rights jurisprudence generally. Moreover,

the plaintiff appeared ro have an adequate

remedy by way of appeal of the board's

order.

20. Supm.

21. 333 Ark. 214.969 S.W.2d 169 (1998).

22. 333 Ark. 561, 972 S.W2d 933 (1998).23. Smighr v. Raglond. 280 Ack. 206, 655

S.W2d 459 (1983).24. 325 Ark. 341. 942 S.W.2d 804 (1996).

25. s.e. City of Lirele Rock v. Cash, 277 Ark.

494.644 S.w:2d 229 (1982).26. 331 Ark. 508, 962 S.W2d 773 (1998).

27. 29 USC § 216(b).

28. 502 U.S. 197 (1991).29. 496 U.S. 356 (1990).30. See, Aldm v. Main,. U.S. Sup. Cr. No. 98­

436, June 23. 1999.

Jeff Broadwater IS

Senior Counsel forEnrergy Services, Inc.In Lirrle Rock,Arkansas, where heworks primarily in pub­lic urility regularion.He received his J.D.

from the University ofArkansas and also has a Ph.D. from

Vanderbilt University.

SUPREME COURT

ApPROVES

NEW LAWYER

ADVERTISING RULES

The Supreme Courr of Arkansas

has approved, with modifications,

changes in the lawyer adverrisingrules recommended by the Arkansas

Bar Association. Because of theimportance of these changes, the

new rules are printed below in their

entirery.

The new advenising rules wereissued by the Supreme Courr on

May 6th in a per curiam order. On

the same date, the Court approved,

with modifications, the petition of

the Arkansas Bar Association in

regard to the sale of a law practice.There are three per curiam orders

involved with the sale of a law prac­tice since (he coun amended Rule

5.4 and Rule 5.6 of the Arkansas

Model Rules of Professional

Conduct, and added new Rule 1.17.

The amendments to lawyer

adverrising are to rules 7.1,7.2 and

7.3 of the Arkansas Model Rules ofProfessional Conduct. The changesin lawyer advertising and the new

rules on the sale of a law practice can

be found on the Arkansas JudiciaryWebsite:

h [(p:l/cOuTts.sta te.ar. uslo pi n=

ionsI19990506.htm.

RULE 7.1 COMMUNICATIONSCONCERNING A LAWYER'SSERVICES

A lawyer shall nor make a false or mis­leading communication about the lawyer orthe lawyer's services. A communication isfalse or misleading if it:

(a) contains a material misrepresentationof fact or law, or omits a fact necessary to

make the sratement considered as a wholenot materially misleading;

tl nl .lr~lI111 Ll~}lr III. II SI.lfSllllr Ill!

(b) is likely to create an unjustifiedexpectation abour the results the lawyer canachieve, or states or implies that the lawyercan achieve results by means that violate therules of professional conduct or other law;

(c) compares the lawyer's services withother lawyers' services, unless the compari­son can be faccually substantiated; or

(d) comains a testimonial or endorse­memo

Comment:This Rule governs all communications

about a lawyer's services, including advertis­ing permitted by Rule 7.2. Whatever meansare used to make known a lawyer's services,statements about them should be trmhfuLThe prohibirion in paragraph (b) of state­ments that may create "unjustified expecta­tions" would ordinarily preclude advertise­ments about the results obtained on behalfof a c1iem, such as the amount of a damageaward or the lawyer's record in obtainingfavorable verdicts, and advertisements con­taining client endorsements. Such informa­tion may create the unjustified expectationthat similar results can be obtained for oth­ers without reference to the specific factualand legal circumstances.

RULE 7.2 ADVERTISING(a) Subject to the requirements of Rules

7.1 and 7.3, a lawyer may advertise servicesthrough public media, such as a telephonedirectory, legal directory, newspaper or otherperiodical, outdoor advertising, radio ortelevision, or through written communica­tion.

(b) A copy or recording of an advertise­ment or communication shall be kept forfive years after its last dissemination alongwith a record of when and where it wasused,

(c) A lawyer shall nor give anything ofvalue to a person for recommending thelawyer's services, except that a lawyer maypay the reasonable cost of advertisements orcommunications permitted by this rule and

may pay the usual charges for not-for-profirlawyer referral service or other legal serviceorgani1..arion; and may pay for a law practicein accordance with Rule 1.17.

(d) Any communication made pursuantto this Rule shall include the name ofat leastone lawyer who is licensed in Arkansas andwho is responsible for its content, and shall

disclose the geographic location of the officeor offices of the attorney or the firm inwhich the lawyer or lawyers who actuallyperform the services advertised principally

practice law.(e) Adverrisements may include pho­

tographs, voices or images of the lawyerswho are members of the firm who will actu­ally perform the services. If advertisementsutilize actors or other individuals, those per­sons shall be clearly and conspicuously iden­tified by name and relationship to the adver­tising lawyer or law firm and shall not mis­lead or create an unreasonable expectationabout the results the lawyer may be able roobtain. Clients or former c1iems shall not beused in any manner whatsoever in advertise­ments. Dramatization in any advertisementis prohibited.

Comment:To assist the public in obtaining legal ser­

vices, lawyers should be allowed to makeknown their services not only through repu­tation but also through organized informa­tion campaigns in the form of advertising.Advertising involves an active quest forclientS, contrary to the tradition that alawyer should not seek clientele. However,the public's need to know about legal ser­vices can be fulfilled in part through adver­tising. This need is particularly acute in thecase of persons of moderate means who havenor made extensive use of legal services. Theinterest in expanding public informationabout legal services ought to prevail overconsiderarions of tradition. evertheless,advertising by lawyers entails the risk ofpraaices that are misleading, overreaching,or unduly intrusive.

This Rule permitS public disseminationof information concerning a lawyer's nameor firm name, address and [e1ephone num­bers; the kinds of services the lawyer willundertake; the basis on which the lawyer'sfees are determined, including prices forspecific services and payment and creditarrangements; a lawyer's foreign languageability; names of references and, with theirconsent, names of clients regularly repre­sented; and other information that mightinvite the attention of those seeking legal

aSSIstance.Questions of effectiveness and taste in

advertising are matters of speculation andsubjective judgment. Some jurisdictionshave had extensive prohibitions against tele­vision advertising, against advertising goingbeyond specified facts about a lawyer, oragainst "undignified" advertising. Televisionis now one of the mOSt powerful media forgetting information to the public, particu­larly persons of low and moderate income;prohibiting television advertising, therefore,

MORGANTHAU, 0 TOOLE & CO. INC.Valuation Specialties

• ESOPs• Family Limited Partnerships• Limited Liability Companies• Merger & Acquisitions• Buy/Sell Agreements

would impede the flow of informacionabout legal services to many sectors of thepublic. Limiting the information that maybe advertised has a similar effect andassumes that the bar can accurately forecastthe kind of information that the publicwould regard as relevanr.

Neither this Rule nor Rule 7.3 prohibitscommunications authorized by law, such asnotice to members of a class in class actionlitigation.

Record of AdverrisingParagraph (b) requires mar a record of ,he

coment and use of advertising be kept inorder to facilitate enforcement of this Rule.It does not require that advertising be sub­ject to review prior to dissemination. Such arequirement would be burdensome andexpensive relative to its possible benefits,and may be of doubtful constitutionality.

Paying Others to Recommend a LavvyerA lavvyer is allowed to pay for advertising

permitted by this Rule, and for the purchaseof a law practice in accorda.nce with Rule1.17, but otherwise is not permitted to payanother person for channeling professionalwork. This restriction does not prevenr anorganization or person other than me lawyerfrom advertising or recommending thelawyer's services. Thus, a legal aid agency orprepaid legal services plan may pay ro adver­tise legal services provided under its aus­pices. Likewise, a lawyer may participate innot-far-profit lawyer referral programs andpay the usual fees charged by such programs.Paragraph (c) does no' prohibi, paying reg­uJar compensation to an assistanr, such as asecretary, to prepare communications per­mined by ,his Rule.

Paragraph (e) of this Rule is designed toensure that the advertising is nOt misleadingand does not create unreasonable or unreal­istic expectations about the results thelawyer may be able to obtain in any particu­lar case, and to encourage a focus on pro­viding useful information to the publicabour legal righrs and needs and me avail­abiliry and ,erms of legal services. Thus, ,heRule allows all lawyer advertisements inwhich the lawyer personally appears to

explain a legal right, the services the lavvyeris available to perform, and the lawyer'sbackground and experience. Regardless ofmedium, a lawyer's advertisement shouJdprovide only useful, factual information pre­senred in a nonsensational manner.

RULE 7.3 DIRECT CONTACT WITHPROSPECTIVE CLIENTS

(a) A lawyer shalJ no' solici" by any formof direct contact, in-person or otherwise,professional employment from a prospectivediem with whom the lawyer has no familyor prior professional relationship when a sig­nifica.nt motive for the lawyer's doing so isthe lavvyer's pecuniary gain.

(b) No,wi,hsranding ,he prohibi,ionsdescribed in Paragraph (a), a lawyer maysolicit professional employment from aprospective client known to be in need oflegal services in a particular matter by writ­ten communication. Such written commu­nication shall:

(1) include on the bottom left hand cor­ner of the face of me envelope the word"Advertisement" in red ink, with type twiceas large as that used for the nanle of theaddressee;

(2) only be sen< by regular mail;(3) no, have ,he appearance of legal

pleadings or omer official documents;(4) plainly sra'e in capi,al leners

"ADVERTISEMENT" on each page of ,hewritten communication;

(5) begin wim ,he sra,emen< ,hat "If youhave already retained a lawyer, please disre­gard this letter";

(6) include the following statement incapi,al lerrers: "ANY COMPLAJNTSABOUT THIS LETTER OR THE REP­RESENTATION OF ANY LAWYER MAYBE DIRECTED TO THE SUPREMECOURT COMMITTEE ON PROFES­SIONAL CONDUCT, C/O CLERK,ARKANSAS SUPREME COURT, 625MARSHALL STREET, LITTLE ROCK,ARKANSAS 7220 I"; and,

(7) shall comply wim all applicable rulesgoverning lawyer advertising.

(c) In death claims, me written commu-

VICTOR E. PAULOS

Certified Business AppraiserBusiness Consultant

nica,ion permitted by paragraph (b) shallnot be sent until 30 days after the accident.

(d) Any written communication prompt­ed by a specific occurrence involving oraffecting me intended recipient of the com­munication or a family member shall dis­close how me lawyer obtained the informa­tion prompting the communication.

(e) Even when otherwise permitted bythis rule, a lawyer shall not solicit profes­sional employment from a prospective clientby written or recorded communication orby in-person or telephone contact if:

(1) the prospective client has madeknown to the lawyer a desire not to besolicited by the lawyer;

(2) the solicitation involves coercion,duress, harassment, fraud, overreaching,intimidation, or undue inAuence; or

(3) the prospective client is known to

me lawyer to be represenred in connectionwith the matter concerning the solicitationby counsel, except where the prospectivec1ienr has initiated me contaCt with thelawyer.

(f) Notwithstanding the prohibitions inparagraph (a), a lawyer may participate witha prepaid group legal service plan operatedby an organization not owned or directed bythe lawyer which uses in-person or tele­phone contact to solicit memberships orsubscriptions for the plan from persons whoare not known to need legal services in a par­ticular matter covered by the plan.

Comment:

There is a potential for abuse inherent indirect in-person or live telephone contact bya lawyer with a prospective c1iem known to

need legal services. These forms of contactbetween a lawyer and a prospective clientsubject the layperson to the private impor­tuning of the trained advocate in a directinterpersonal encounrer. The prospective

12 Gaza LaneHot Springs Village, AR 71909Phone: 501-922-5405Fax: 501-922-5405

fol.lllll.I/S'.lIpr 1m n! ,Irklllll LI~W 21

(;1:1" \0I1{ 1)\ \ sun ICE I{IGIIT lIun: I \\I{I\ \ \S \S

NEED ASSISTANCE WITH APPEALS?

This porendal for abuse inherent in direct

in-person or live telephone solicitation ofprospective clients justifies its prohibition.particularly since lawyer advertising andwritten communication permitted under

Rule 7.2 offer alternative means of convey­ing necessary information [Q those who maybe in need of legal services. Advenising andwritten communications which may bemaiJed make it possible for a prospectiveclient co be informed about the need forlegal services, and abom the qualifications ofavailable lawyers and law firms, withomsubjecting the prospective cliem ro direct in­person or telephone persuasion thar mayoverwhelm the client's judgment.

The use of general advertising and writ­ten communications to uansmit informa­tion from lawyer to prospective client, ratherthan direct in-person or live telephone con­tact, will help to assure that the informationflows cleanly as well as freely. The comenrsof advertisements and communications per­mitted under Rule 7.2 are permanenclyrecorded so that they cannot be disputedand may be shared with orners who knowthe lawyer. This potential for informalreview is itself li.kely to help guard againststatements and claims that might constitutefalse and misleading communications, inviolation of Rule 7.1. The contents of directin-person or live telephone conversationsbenyeen a lawyer to a prospective client canbe disputed and are nor subjecr ro third­party scrutiny. Consequencly, they are muchmore likely ro approach (and occasionallycross) the dividing line between accuraterepresentations and those that are false andmisleading.

There is fur less likelihood that a lawyerwould engage in abusive practices against anindividual with whom the lawyer has a priorpersonal or professional relationship orwhere the lawyer is motivated by considera­tions other than the lawyer's pecuniary gain.Consequently, the general prohibition inRule 7.3(a) and rhe requirements of Rule7.3(b) are not applicable in those situations.

But even permitted forms of solicitationcan be abused. Thus, any solicitation whichcomains information which is false or mis­leading within the meaning of Rule 7.1,which involves coercion, duress, harass­ment, fraud, overreaching, intimidation, orundue influence within the meaning of Rule7.3{e)(2), or which involves contact wirh aprospective client who has made known to

Advertising RulesContinued. on Page 48

est in the face of the lawyer's presence andinsistence upon being retained immediately.The simarian is fraught with the possibilicyof undue inAuence, intimidation, and over­reaching.

Apollo DNA Services Labor.ltory. Slot 516·4301 \1It:st MarkhamLittle Rock,AR 72205 • www.apoLlodna.com

The surest way to establish assured of timely results and expert,paternity is through analysis of a personal service - right here indelicate chain of DNA. And UAMS Arkmsas. No referral is necessary, andMedical Center is the only place there is no age limit on thein Arkansas that has an on-site III child. Expert witness available.paternity testing laboratory that Call for an appointment:uses DNA analysis. I 686-7668 or 1-888-233-0317.

When you call us, you can belRriiam Olre

.:. State and Federal Appeals

.:. Former Arkansas Supreme Coun Law Clerk

.:. Writing ample and References Available

PATERNITY C:ASE?

CAROUNE L. WINNINGHAM

Brazil, Adlong & Osment, PLC

913 Oak Street

Conway, AR 72032(501) 327-4457

• Custom Software Applications• etwork Planning and Integrations

• Printing Cost Recovery Software Solutions• Amicus® Attorney ill Reseller

(SOO) 541-9430. (501) 663-7736.2314 Durwood Road. Little Rock. AR 7n07

www.redpointsystems.com

dient, who may already feel overwhelmedby (he circumstances giving risc to the needfor legal services. may find ir difliculr fullyto evaluate all available alternatives with rea­

soned judgmem and appropriate self-inter-

:!! T~ Arknw LBJrr III. It Sd/S.le II!!

www.legaldirectories.com

The Official Directory Of TheArkansas Bar Association

Arkansas Legal DirectoryP.O.Box 189000Dallas TX 75218(800) 447-5375

Copies are just $38.00plus P&H and state sales tax.

Place your order todayt/ office managert/ receptionistt/ paralegalt/ secretaryt/ librarian

Order extra copies for your:

Nearly 500 pages of information not readily availableanywhere else. Contains all the information to make it the

number one reference tool for the Arkansas legal profession.

r,lll,ll.lfS'II/r 1m 1lt jr~mll Li~w ~l

i I nr ,Irklllll L1KJrf III. 1I II. liSIller Ill!

Laying the Groundwork for ChangeLouis B. "Bucky"Jones, Jr., took office as President ofthe Arkansas Bar Association June 12, 1999.

Now he plans to continue the work others have begun, as well as lay the groundwork for some changes.

• by Sara Landis •

'/Is the membership

ofthe

Arkansas Bar Association

grows and diversifies,

we should

focus like a

laser beam on

ethics and

professionalism. "

For five months, Sucky Jones has been

helping srudems and working adults inbusiness and professional fields achieve theirgoal of anaining a Masters Degree cluough aprogram which enables the student {O attendclasses at night. and fulfill mher obligationsduring the daytime hours. Jones is theDirector of the Fayetteville RegionalCampus of Webster University, a schoolwhose home campus is in St. Louis, but

which has a network of more than 70 cam­

puses throughout the United Stares,

Bermuda, Europe, China and Thailand.Webster is onc of the most respectedUniversirjes offering M.B.A.s and M.A.s inbusiness studies on extension campuses.

We were curio liS about this self-described"legitimate baby boomer," so on a recent

stormy Tuesday my editor, my photographer

and myself laughed in rhe face of animpend.ing tornado and traveled the new

scenic Highway 540 to Fayetteville in order

to spend an afternoon with the man [ have

repeatedly heard described as "caring.""All my life, I've enjoyed helping people.

I like people. I enjoyed helping people whenI was in law practice, whether it was a civilmatter, or a criminal matter. And what bet­ter way to help people than to help themadvance their education?"

We began our interview in Jones' office,

which is tucked in the corner of the spank­

ing clean, newly renovated space thatWebster occupies. fu the skies grew increas­

ingly darker, Jones kept up his easy bamerand freely shared humorous anecdOtes abom

family and friends.

Jones was born in Memphis, Tennessee,

on August 12, 1946. He grew up in ForrestCity, Arkansas, where his father, a farmer,

grew everything from cotton and soybeans

to strawberries. That farm, though reflected

I'ol.ll No.l/Somm~f 1999 The ,Irkaosas I,all}!'f 25

uft: Blleky and his wift, Anita, and theirtwo 'om, Carter (kft) 21, and Cliff(/itr

right) 24, arc pielllrcd here in jones' office.hue/: Bucky and Anita at tlu Barristers'

Ball held in November 1998.

SIDE BAR

In a moment of quiet contempla­

tion, a certain irony scruck me.

Upon reading an article wrirten in

1995 abou, Jones, 1discovered cha'

in 1972, the year that Jones

received his law degree and entered

the private practice of law, laws

wefe being broken by Pr~ident

Richard Nixon. "Watergate shook

a 10' of people's faich in govem­

mem, bur it proved that everyone is

accountable, mat this is a nation of

Jaws, not of men," said Jones. How

odd cha' he should, 27 years la,er,

be entering his presidency of the

Arkansas Bar Association at a time

when yet another United States

President has lied to the nation.

How does Jones feel abo", cha,?

"The syscem wo,ked in boch cases!

We may agree or disagree with the

outcome, but the procedures in

place: to resolve these: types of situ­

ations worked."

11 '!if. jr~lI!ll Li~W I'll. 1I SI. I/S.lllr 19l!

upen fondly, played a big pan inJones' decision to become a lawyer."I worked enough on that farm toknow that I didn't want to farm for aliving: he laughed.

At a young age, he became inter­ested in public affairs, which madehim a "weird kid." Going to lawschool seemed to be a logical exten­sion of that interest. So, after gradu­ating from Hendrix College wherehe had scudied hiscory and poli'icalscience, Jones enrolled at theUniversity of Arkansas at Fayettevilleto srudy law. He received his jurisdono' degree in 1972.

Jones was a private practicinganomey fcom 1972 co 1987 inForrest City. He spent five years atthe smaJl firm of Buder, Hicky andJones, and then another ten years ingeneral private practice as Louis B.Jones, Jr., Attorney at Law. From1987 uncil 1990, Jones worked as ,he SeniorStaff Atrorney for East Arkansas LegalServices. It was during this time that heserved as President of the Sr. Francis CountyBar Association, an Association that, underhis leadership, in 1990 was given ,heOutstanding Local Bar Association Awardby the Arkansas Bar Association. TheBenton County Bar Association was alsogiven that distinction when he ~rved asP,esidem in 1995.

Perhaps now is the time to glance atJones' resume and highligh' o,her achieve­menrs of his legal career. In 1985 he servedas a Special Associate Justice on the ArkansasSupreme Coure. He was appointed by theGovernor and served on the Arkansas Crime

Lab Board fcom 1978-1987 and fcom 1993­1995 served another appointment by theGovernor on che Commission for ArkansasFuture. He served the Arkansas BarAssociacion as a member of its ExecutiveCouncil from 1995-1998 while serving as amembe, of ,he House of Delega'es.

The "caring" word came up again whenJones' wife, Anita, was asked to sum up herhusband. "'Caring. interested in communi­ty ... his family and particularly in highereducation," she said. "He also has a greatsense of humor."

It was while serving as board attorney atEast Arkansas Community College inForrest City that this caring man saw first­hand what a college meant co an economi­cally depressed community. "It's like a bea-

Left: At the Ribbon Cutting Ceremony fOrthe opening ofthe webster UniversityCampus. Pictured in the crowd next toBucky are Marcella Dill, Vice-President fOrExtended Campus Administration atwebster University in St. Louis, andJerryPeters, Director ofthe LittLe RockMetropolitan Campus ofWebster University.

~L....•••-""," ~-':"'-=-- ---.J

con on a hill. It allows people to bringthemselves up by their boot straps," Jonessaid. "If a community colJege meant thatmuch in a depressed area, how much moremeaning and value could a community col­lege have in an area that is growing?"

And so in 1990, Jones left East ArkansasLegal Services to take a job as Assistant tothe President of the newly establishedNorthwest Arkansas Community College.He moved to Rogers with his wife of nearly30 years, who serves as DivisionChairperson for Communications and ArtSat Northwest Arkansas CommunityCollege, and his two sons, Cliff, 24, who isworking on his Masters in PublicAdministration at the University of

.-.

Arkansas and Caner, 21, also at theUniversity majoring in Transportation andLogistics. He refers to his family as his«greatest accomplishment." What advicewould he impart to his sons? "To let theirheads and their hearts lead them to do whatthey really want to do," Jones said. "Doingsomething you enjoy is the key to beinghappy," he said. And what advice did hisfather, who passed away in Jan uary, impartto him? "He had twO favorites." Jones said,his eyes lit up with sentiment. "One wasLou Holtz's famous 'Do Right' tule, and theother was Micah 6:8, the Bible verse thatsays 'He hath showed thee, a man, what isgood; and what doth the LORiO tequire ofthee, but to do justly, and to love mercy, and

to walk humbly with thyGod?'"

We were abruptlybrought from the past to thepresent by an urgi ng from theNational Weather Service to

take shelter immediately. SinceOklahoma City had been vio­lently hit by a tornado only theday before, no one quibbled aswe were led [Q the women'srestroom of Webster University,Jones' current employer. I'mpleased to say we lived to tellyou about this current phase inJones' educational career as wellas his new role as President ofthe Arkansas Bar Association.

Left: Bucky is piceured with hisstaff. Kim Richardson (left),Department Associate, andSigrid Long (right),Community RelationsCoordinator.

Photo by Dixie Knight Photography

This picture, hanging in Jones'

office. is an original watercolor by

artist Kathi Spencer. and was taken

from coloc photOgtaphs of a "pick

your own" strawberry patch located

on the Graham Farm near Madison

(St. Francis County) Arkansas.

Several of the scenes feature Jones'

late father, Louis B. Jones. People

came from allover East Arkansas

and the Mid South to enjoy the

"fruit of fellowship" of the straw­

berry patch. The farm and the

strawberry patch were sold in the

mid 1980's.

fol. II NI. I/SuII1er 19!9 Tbe Irkml! Llwyer l1

"Bucky has always

had his hands in a lot

ofdifferent things

and has held a lot of

positions ofleadership.

He is always

willing to give of

his time for

the benefit ofothers. "

- Harry Tn/man Moore

Above are the treasured political cartoons adorning one wall in Jones' office. Amongothers, he has four cartoons signed by President Bill Clinton during various points inhis political career and several drawn by George Fisher, a famous Arkansas political car­toonist. Fisher provided the artwork for the cover of this issue of The Arkansas Lawyer.

As Direccor of Webster, Jones is responsi­ble for the overall operation of the campus,from hiring facuhy, scheduling classes, andmanagement of the campus to making pre­sentations to various groups. Accepting theposition with Webster offered Jones anopportunity to take his experience in law,education and life to a higher level; it gavehim an opportunity to advance in his cho­sen field.

"Ir's an opporrunity to create, on thegraduate level, a program that is as success­ful as the program r had been involved withon the undergraduate level," Jones said."And it's another higher education optionfor people in Northwest Arkansas."

r wondered how Webster felt about theirnewly acquired Director undcnaking thehuge responsibilities that go along withbeing President of the Arkansas BarAssociation at the same time he is startingup a new school for them. "My Staff heremakes it possible for me to do this [bePresident] along with the folks in Sr. Louis.They are very supportive." The excellentstaff ro whom Jones refers are KimRichardson, Department Associate. andSigrid Long, Community RelationsCoordinator.

One of Jones' goals for his year asPresident includes continuing initiativesalready begun by Roberr M. Cearley, Jr. "1

would like to continue Bob's initiatives onethics and professionalism," Jones said. "rwant to promote professionalism and highethical standards for all lawyers, whetherthey are engaged in business, private prac­tice, government service, education-what­ever. As the membership of the ArkansasBar Association grows and diversifies, weshould focus like a laser beam on ethics andprofessionalism."

Another goal has to do with the proposedJudicial Article which was recently passed inthe 1999 Legislative Session. In referring toit, Jones said, "I would like CO lay chegroundwork for approval by the voters in2000. Rarely do you have a chance co makesuch a far-reaching positive change. Weneed to prepare the membership of the Barand the public for that change. Hopefullywe will modern.ize, streanlline and depoliti­cize our judicial system," Jones said. "Iwant to lay the groundwork for mac."

Jones is humbled and honored by theconfidence the membership has placed inhim, and hopes he will be able ro add ro theproud tradition that is the Arkansas BarAssociation. In typical Bucky fashion heshrugs his shoulders and laughs as he says,"Hey, I don't expect to change the world chisyear-but I hope co make it a little better."I'm sure he will. +

18 Ue ,lrkllSiJ I,l~]er 101. II II. liSIller 1!99

by Baxter Sharp

,

go F.;lvoriles Help

@J f:;j~ Slop RelTesh Home

w.arkbar.com/publicjnfo.html

August. In particular, I would like to see a teamof approximately 20 lawyers working with thejuveniles at the Alexander DYS facility. I foreseemenroring and mock trials as part of our servicethere. I have discussed this project this past year,but have not received sufficient volunreers to

implement the project.I would like to encourage all of the members

of our section [Q find out about the good worksthat we do, the fun that we have, and getinvolved. 0)

1 would like to start om by manking Gwen

for her year of service, and by congratulating heralso for the Golden Gavel Award received byTim and Paul. Certainly the Chair deservessome recognition for pursuing the project, and

appointing the right people for the task.I expect to continue many of the same pro­

jects that our Section has successfully done in thepast, such as Disaster Relief, OUI newslencr,

Bridging the Gap, the swearing in ceremony, etc.Talso hope to add some new projects which willbe discussed at our Executive Council Retreat in

Thanksby Gwendolyn Hodge

\onn~ tilll )I'I'S Slid ion 1I,'pol't

Get Involved

Thanks. Baxter. for sharing your column and

giving me an opportunity to say thank you. Tosay thank you to everyone who made this year

the success that it was. To say thank you to theExecutive Council of the YLS: Tim Cullen,Thomas Smith, Charles Kester, Eric Hughes,David Sterling, Scott Zuerker, Paul Dumas,Chris Thyer, Cindy Thyer, Robert Thompson,III, Todd Greer, Jeff Harrelson and Baxter. Tosay thank you to the committee chairs/co-chairs:Paul Dumas and Baxter Sharp, Disaster Relief;Cindy Thyer and Jason Hendren, YlSNewsletter; Ed Slaughter and ColetteHonorable, Membership; David Sterling, LawWeek; Tim Cullen and Paul Dumas,Caregivers/Senior Citizens Handbook; JohnMeyers and Todd Wooten, Btidging the GapSeminar; Ainsley Lang and Betsy Meacham,Annual Meeting Tennis Tournament; Thomas

Smith and Robert Thompson, Annual MeetingSocial Event; Eric Hughes and Rodney Moore,Swearing In Ceremony; and their committeemembers. Thanks for the opportunity to saycongratulations on winning (he Golden GavelAward to Tim Cullen and Paul Dumas, co-chairsof our showcase project, the CareGivers/SeniorCitizens Handbook.

Thank you! It has been great fun workingwith each of you this year. Congratulations to

Tim and Paul on winning the Golden GavelAward for the Caregivers/Senior CitizensHandbook. A job well done. For those of youwho do not have a copy, be sure and get a copy.

Baxter, I look forward to working with youthis year. I know that your year as Chair of theYoung Lawyers Section will be productive andfun.

Again, a sincere thank you to each of you. 0)

Visit the Arkansas BarAssociation at

www.arkbar.comand get the NEW Senior

Citizens/Caregivers Guide

ALSO:

The latest in CLE•

The Table of Contents forHandbooks and Systems

•Pamphlets available to the

public•

What's New and Noteworthyin your Association

•Member Benefits

and coming in August

arkansasfindalawyer

101. H!o.l/Sommer 1999 The ,Irkansas LaWler 29

RECENT

DEVELOPMENTS IN

SEXUAL HARASSMENT

LAw"How THE RULES OF

THE GAME HAVE

CHANGED'"by Shawn D. Twing'

"In Faragl"r and Eller/h, lh, Supmn'Court ~mphllJiud thnr th~ primary objutiv~

of7itk VII is to prtvmt discrimination fromoccumOng and that Ih~ stntul'e is tksign~d to~ncourllg~ the CTfotioll of I1nti-hnrllJIment

policia and t/fietiVl grironnu mechanisms. ..

Justice Benavides of the Fifth Circuit Courtof Appeals, quoted from Williamson v. lh,City0fHouslon, 148 F.3d 462, 466 (5th Cir.1998).

I. IntroductionThe year 1998 will, without a doubt, be

recognized as one of the most significantyears for sexual harassment law since suchclaims were first recognized by the UnitedStates Supreme Court in 1986.2 It is inter­esting co nore that, while district and appel­late court decisions deciding various legalissues governing sexuaJ harassment cases fillvolumes of federal and state reporters. meSupreme Coun has issued relatively fewdecisions defining with any specificiry- exaC[­Iy what sexual harassment is and what thelegal rules ofliabiliry are.' In fujrness ro meCoUrt, the absence of "hard and lilSt" rulesexiS[ in the law, at least in part, by virtue ofthe nature of sexual harassment for whichthere has never been a nacional consensus.

onetheless, the Coun has hiS[orically

issued opinions mat established broad legalprinciples that left the "details" of what sex­ual harassment is and when it is actionableto lower courrs. However, in 1993 theCourt issued its opinion in Harris v. ForkliftSysums. Inc.,4 in which it set out specific fac­tors to be used in determining whether con­

duel rising to the level of actionable dis­

crimination had occurred.5 This past year,the Court went fi.Jrther and issued threeopinions that specifically address andresolve, in some detail. issues concerningboth the scope of sexual harassment claimsand when liabiliry will attach. Taken

~o fbe ,Irlmlll.a"lrr lotll !o.l/Sommer 1999

together, these and other opinions have sub­stantially changed not only the "rules of megame: but they also clarified who the "play­ers"are.

In order to fully appreciate the impact ofthe Court'S recent decisions, one must viewthem in the context of the "big picture" ofsexual harassment law which has developed,much like a chain nove.!, over the past twodecades. As will be illustrated below, someprinciples have been radically altered whileothers remain unchanged. The purpose ofthis Article is see these new decisions in con­text of me "big picrure" so that employerswho will be impacted by them can betterassess how the changes in this area of the lawaffecrs them and what steps they should taketo limit their legalliabiliry.

II. The PlayersA. E1IIployers- Who May be Sued forSexual Harassment!

Title VII of the ivil Rights Act of 1964("1itle VII") was enacted to eradicate cer­tain forms of discrimination with respect toboth employment related decisions affeC[ingemployees, as well as the conduct thataffects the work environment of employees.To this end, section 2000e-2(a)(I) of TitleVII provides that:

(a) Employment PracticesIt shall be an unlawful employmentpractice for an ~mploy~r-

(1) to fail or refuse to hire or to dis­charge any individual, or otherwisediscriminate against any individualwith respect to his compensation,terms, conditions, or privileges ofemployment, because of such individ­ual's race. color, religion, sex or nation­al origin ...

(emphasis added). Given the plain languageof me Act and its acknowledged purpose,one would expect that the prohibitions andremedies applicable in these cases wouldapply solely to "employers," i.~. persons oremities mat engage another person to per­form services pursuam ro a comract of hirein exchange for the payment of wages.6

However, secrion 2000e(b) defines "employ­er" to mean:

a person engaged in an industry affect­

ing commerce who has fifteen (t 5) ormore employees for each working dayin each of twenty or more calendarweeks in the current or preced.ing yearand any agent of such person ...

The phrase "any agenr of such person[meaning 'employer']" has caused a split

among federal courtS as to whether individ­ual managers and supervisors and otherdecision makers who, by their acrs and/oromissions violate Tide VII, can be held per­sonally liable. The Supreme Court has notdirectly addressed this issue; however, memajority view is that Tide VII dO~J notimpose individual liability upon supervisorsor managers who violate the Act by rneiraction or inaction} For example, the FifthCircuit Court of Appeals has held mat theterm "employer" does not include supervi­sory or management personnel; rather, theterm only applies to those "who possess tra­ditional righrs of employers such as hiringand firing." &~ Gram v. Lon~ Slar Co.,supra, and Garcia v. Elf A'och'm N.Am~rica.8 Consequendy, unless the individ­ual manager herself or himself employs fif­teen (J 5) or more employees and possessesme aurnoriry to hire and fire the plaintiff.s/he will not meet the starutory definition ofemployer; hence, no lide VlI liabiliry willattach to them individually.

The Eighth Circuit Court of Appeals hasnot completely followed the majoriry rulerespecting individual liability. In Hall v.Gus Construction Co. ,9 the court held that aforeman was personally liable because heknew of the harassing incidents but failed to

investigate or otherwise take remedialaction. The courr's holding in Hall repre­senes a broader more liberal construction ofthe definition of employer. According to

me court in Bak~r v. Suwarr BroadcastingCo. ,10 a liberal construction to the termshould be given in order to effectuate thepolicies of lide Vll. Whether me EighthCircuit will continue to impose or broadenindividual liabiliry- remains to be seen.However, the weight of authority in othercircuits is clearly going the orner direction,which could cause the court to reconsider irsprevious holdings.

Of course, conduct which constitutes aviolation of Tide VII, especially sexualharassmem, will violate other laws such as

state anti-discrimination statutes and statecommon law prohibiting assault, banery,invasion of privacy, imenrional infliction ofemotional distress and defamation forwhich a manager or supervisor can be held

individually liable. Moreover, a manager orsupervisor may also be liable in some statesfor their negligence in hiring or retaininganother employee who violates the Act andcauses the plaintiff/employee harm.

Assuming that the purporred employer is"engaged in an industry affecting com-

mere<," ir will nor be liable under Tide VIIunless ir employed fifteen (15) or moreemployees for the requisite number ofweeks. 11 The issue then becomes how do

courts count me number of employees forderermining whether Tide VII applies co aparticular employer. This issue was resolvedby the Supreme Court in Walurs v.MtlTopolitan Educational Emtrprisa. Inc. 12

In Waltn>, the Coure adopted rhe "pay­roll method" of calculating the number ofemployees an employer has during any spe­cific work week. In using the payrollmethod. a coure merely asks whether anemployment relationship existed betweenthe employer and employee during the spe­cific work day in question. 13 As opposed come "campe-osacioo" method to calculatingan employer's number of employees, whenusing the payroU method it dots not maneewhether the employee actually performedany work or received compensation in refer­ence co the particular workday. Rather, acourt will simply look to see if che individ­ual was listed on the employer's "payroll"records, which were accepted by the Courtas a readily available means of determiningwhether an employment relationshipberween the person and che company exist­

ed. 14

As a practical matter. the WaLters opinionwill have limited application as to whecheran employer will be covered by Tide VII.However, small employers should keep aclose eye on their payrolls, especially thoseemployers who are engaged in seasonal busi­ness, to avoid being inadvertently broughtwithin the Act's reach. The long rangeimplication of the WaLttrs opinion for mostemployers involves the Civil Rights Act of1964. 15 This Act allows plaintiffs who sueunder Title VII to recover compensacory.and in some cases, punitive damages inaddition to back pay and other traditionalelements of recovery. However, the Act lim­its the total amounr of compensatory andpunitive damages that may be awarded byvirtue of Statutory "caps" on those elementsof recovery. The caps are progressive in chatthe amount of the cap is determined by the

number ofemployees che employer has in itsemploy.16 The caps increase in incrementsof $50,000 and $100,000. The SupremeCourt will undoubtedly adopt the Waltn>payroll method of calculating an employer'snumber of employees for determining notonly Tide VII coverage, but also to deter­mine the applicable staturory cap.Consequently, employers who maintain

"stale" payroll records could unwittinglyincrease their exposure to liability shouldsuit be filed against chern.B. Employ...- Ino is Entitkd to Sue forSeXUllI Harasnnent!

In order to bring a TItle Vll action forsexual harassment, the complainant must bean employee of the defendant. Thoughextremely unhelpful in irs description, TideVlI defines the term "employee" to mean,"an individual employed by an employer[except certain elected and nominated pub­lic officials]."17 On its face. the statutorylanguage does not include third parties suchas vendors, customers and other members ofthe public. Not surprisingly, the SupremeCourt has adopted an approach to Title VI Ithat extends its protection only to personswho have either sought, possessed or cur­rently possess an employment relationshipwith the employer. Su '.g., Robimon v. Sh.1IOil Co., 117 S. Cr. at pp. 846-47. However,an employer's relationship with so-called"independent contractors" is a liability pit­fall because the faCtual circumstances sur­rounding the engagement and performanceof a contractor relationship with a thirdparry may result in a finding by either theEEOC or a trial court that an employmentrelationship exists with that parry for pur­poses oflitle VII coverage and liability. Toassist employers in determining whether aperson working for them is an "employee,"the EEOC has adopted a list ofsixteen non­inconclusive or conclusive factors ro consid­er. 18

The EEOC's guidance on this issuestresses the faCt mat determinations ofwhether an "employment" relationshipexists will be made on a case-by-case basisand that none of the preceding factors iscontrolling. Consequently, simply having aperson who provides services co the employ­er sign a COntracc as an independent con­tractor will not be conclusive or prevent fur­ther analysis. Moreover, the EEOC has alsocaken me position thac, even though theemploymenr relacjonship is reviewed on acase-by-case basis, a firm who hires contractworkers "typically qualifies as an employer

of the remporary employee during the jobassignment, along with the placementageney."19

Finally, the most recent development insexual harassment law in reference to whomay bring a Title VII claim againsc anemployer was the Supreme Coun's adoptionof so-called "same sex" sexual harassmenrclaims. In Onca/t v. Sundowfur Offihort

Snvica, Inc.,20 me Court addressed the issue

ofwhether an employee who is allegedly sex­ually harassed by a manager of the same gen­der can bring a claim againsc the employerunder Tide VII. Before Oncale, same-sexcases created a variery of conflicting deci­sions within the lower federal circuits. Forexample, the Fifth Circuit, where theOncale case had originared, had held thatsame sex cases were not actionable underTide VII. Garcia v. ELF Atodmn N. Am. 21

Other circuits had held that such cases wereactionable only if the plaintiff could provethe purported harasser was homosexuaJ. Sf!(McWilliams v. Fairfax County Board ofSuptrvisOrr,22 compart with, Wrightson v.Pizzo Hut ofAJ1I"ica.2J Conversely, othercircuits held thac same sex cases were action­able like any other sexual harassment case:brought under Tide VII. Do. v. &lleville. 24

However, in deciding che issue. che CoUrtobserved that:

If our precedents leave any doubt onthe question, we hold today that noth­ing in Title VII necessarily bars a claimof discrimination [i.e. unlawful harass­ment] "because of . . . sex" merelybecause the plaintiff and defendant (orthe person charged with acting onbehalf of the defendant) are of thesame sex.2S

Interestingly, in reaching its decision, theSupreme Court expressly adopted anapproach to the interpretation of litle VlIwhich expands the scope of the Act signifi­cantly beyond Congressional intent in pass­ing the statute. Specifically, the Coureobserved:

We see no justification in the statutorylanguage or our precedents for a cace­gorical rule excluding same-sex harass­ment claims from the coverage ofTideVI I. As some courts have observed,male-on-maJe sexuaJ harassment in theworkplace was assuredly nOt the prin­ciple evil Congress was concerned withwhen it enacted TItle VII. But statu­cory prohibitions often go beyond theprinciple evil to cover reasonablycomparable evils, and it is ultimately

the provisions of our laws rather thanthe principal concerns of our legisla­tors by which we are governed.26

To some, this language may be viewed asnothing more than an esoteric exercise inthe jurisprudencial method used by theCourt to interpret Statutes when it decidescases, which presumptively is of little con­cern to non-lawyers. However, this passage

liL II b.l/S'111t 1m Ue IrlmlJ Liwjlr II

is a key elemem in understanding the futureof Tide VII litigation. Having shirked thelimitations, if any, of Congressional iment,the Court has freed itself to expand thescope of Title VII to virtually any noxiousconduct in the workplace, so long as theconduct in question is a "reasonably compa­rable evil." As a result, harassmenr on thebasis of characteristics such as sexual orien­tation may eventually state claims under theAct. See e.g., Price Waterhouse v. Hopkins27

and Doe by Doe v. City of Belleville, !II. 28

(discrimination and harassment based uponthe employee's expression of femininity andmasculinity).C. Purported Harassers- U7ho Can Get anEmployer Sued?

Courts have unanimously held thatemployers have a duty to protect theiremployees from unlawful harassmentwhether the purported harasser is a co­employee or non-employee. See e.g., Jarmanv. City ofNorth Laki1.9 (the environment inwhich an employee works can be renderedoffensive in an equal degree by the acts ofsupervisors, co~workers or even strangers tothe work place). Stated simply, non-employ­ees can subject an employer to Title VII lia-

Law Officesof

Gary Greenannounces

the associationof

Vicki Fewell

andScott Scholl

l1 The ,Irkansas Lawler fn!. l·I,Yn. l/Snmmer 1999

biliry for sexual harassment the same astheir employees. This is referred to as"third-party" sexual harassment. Third­party sexual harassment occurs when a thirdparty non-employee is the alleged harasser.Such persons include customers, clients,independent contractors, vendors, or othermembers of the public. On this issue, theEEOC has taken the position that:

An employer may also be responsiblefor the acts of non-employees withrespect to sexual harassment ofemployees in the work place, wherethe employer (or its agents or supervi­sor employees) knows or should haveknown of the conduct and fails to takeimmediate and appropriate correctiveaction.29 C.ER. § 1604.11(a). Examples of

third-party harassment include:l. Harassing conduct precipitated bya residenr of a home for individuals withdevelopmental disabilities. Crist v. FocusHomes, [nc., 122 E3d 1107 (8th Cir.1997) (the resident harassed employees ofhome by pulling their clothing, lookingdown female employee's shirts, grabbingthe private body parts of both male and

Ms. Fewell, formerly with the

Arkansas Attorney General's office,

will handle administrative proceedings,

nursing home, family law, medical

negligence and personal injury

litigation.

Mr. Scholl earned his J.D. at the

University of Nebraska in Lincoln,

and served on the Board of Directors

for the Nebraska Chapter of the

ACLU. He will handle personal

injury and medical negligence

litigation, and family law.

female employees and committing otherphysical assaults on them). In Crist, theemployees complained of the resident'sbehavior but management rook no actionon meir behalf.2. A female employee who washarassed by customers and other mem­bers of the public when required to weara revealing "bi-centennial uniform" whileworking in me lobby of the employer'soffice building. While wearing the uni­form, plaintiff was subjected to repeatedpropositions and endured lewd com­ments and gestures. EEOC v. Sage RealtyCorp., 507 E Supp. 599 (S.D.N.¥. 1981).3. A female black-jack dealer subject­ed to incidents of verbal abuse and lewdcomments by male patrons at casino.Employee complained of the incidents,but employer took no remedjal actionupon her behalf. Powell v. Las VegasHilton Corp., 841 E Supp. 1024 (D. Nev.1992).4. Employee of City subjected ro sex­ual harassment by City Alderman.Jarman v. City ofNorth Lake, supra. Citydelayed five months before responding tothe employee's complaints. Court ruledthe employer took toO long to respond soas to avoid Tide VII liability.

Finally, an employer may be held liablefor gender discrimination when an employ­ee is denied a job opportunity or benefit asa result of preferential treatment given by amanager or supervisor to another employeewho submits to the sexual advances of theemployer and/or its agent. On this point,the EEOC guidelines say that:

Where employment opportunities orbenefits are granted because of an indi­vidual's submission to the employer'ssexual advances or requests for sexualfavors, the employer may be held liablefor unlawful sex discrimination againstother persons who were qualified forbut denied that employment opportu­nity or benefit.

29 C.ER. §1604.II(g)(l998). Further,giving preferential treatment to those whosubmit to their sexual advances creates ahostile work environment that adverselyaffects the motivation and work perfor­mance of other employees who find the con­duct offensive. However, in 1990 theEEOC issued a policy statement which out­lines a general rule which states that prefer­ential treatment based upon a consensual

Unlimited AccessTo Law Libraries.

RESTRAINTSIt's the freedom of information. With Law

Office Information Systems, Inc., you

can do all the research you want for one

flat rate. You get unlimited access to the

most current cases, statutes, regulations

and more through the Internet or on

CD-ROM. And only LOIS gives it to you at

a price every practitioner can aHord. So

don't wait. Call today at 1-800-364-2512

ext. 152 and find out how much

money you can save by using

LOIS law libraries. With our

3O-day money-back guarantee,

there's nothing to lose.

L a I S

1·800·364·2512(ext. 152)

www.loislaw.com

Fasl, ACCllralt, Affordablt Ltglll RtsttlrrJ, ".

romamic relationship is not prohibited byTitle VII. 5.. also, Taken v. OklahomaCorporation Commission30 (a supervisor'spromotion of his paramour solely because oftheir romantic relationship does not violateTitle VII because with respect to this indi­vidual plaintiffs/he was in the same positionas omer men and women due to their lack ofa special relationship with the supervisor).

Ill. Tbe RulesA. Basu: Definition ofSexual HarassmentRemains the Same

The basic definition ofsexual harassment,as articulated by the EEOC, and universallyadopted by federal and state courts, has notchanged. According to the EEOC,

[u]nwelcome sexual advances, requestsfor sexual favors, and omer verbal orphysical conduct of a sexual natureconstitutes sexual harassment when:(I) submission to such conduct ismade either explicitly or implicitly aterm or condition of an individual'semployment,(2) submission to or rejection ofsuch conduct by an individual is usedas me basis for employment decisionsaffecting such individual, or(3) such conduct has the purpose oreffect of unreasonably interfering withan individual's work performance orcreating an imimidating, hostile oroffensive working environment.

29 C.ER. § 1604.1 1(a)(1996). The basicelement involved in any sexual harassmemclaim is that the conduct complained of is"unwelcome." However, the faCt that sex­related conduct was voluntary in the sensemat me complainant was not forced to par­ticipate against his/her will is not necessarilya defense ro a sexual harassment suit. "Th~

co~ct il1quiry is wluthu th~ complnil1ant byhu conduct indicaltd that th~ alkg~d somaladvanca ~r~ un~kom~, not whuh" h"participation in saual [activity} was volun­tary. .. M~ritor Sav. Bank, FSB v. Vinson) I In

determining whether sexual harassment isunwelcome, courts consider whether theemployee solicited or incited the conductand whethet the employee regarded the con­ducr as undesirable or offensive. For exam­ple, in Gross v. Burgra./f Construction Co.,32the plaintiff contended that she was subjea­ed to sexual harassment by her male supervi­sors who used vulgar language and madedemeaning remarks about her at work.Upon reviewing the evidence, which includ­ed proof of her active participation in such

II Ue ,Irkmll Li~]rr 111.11 NI.l/S.II/r 1199

conduct, the court found that the plaintiffdid not view the supervisors' conduct as

unwelcome.33

B. Sexual Harassment Can Be Labekd AsBeing One Of Two Forms

From the forgoing definition of sexualharassment, one may discern the two basictypes of actionable sexual harassment whichhave been applied by courts, namely the so­called quid pro quo harassment' claim andhostile work environment harassment claim.Su Jonn v. Climoll.34

Quid pro quo is a Larin phrase whichtranslates "what for what." The phrasedenotes mutual consideration of a bargainsuch as something given in exchange forsomething else. As the name implies, quidpro quo sexual harassment occurs when:

[slubmission to or rejection of... [sex­ual] conduct by an individual is used asa basis for employm~nt decisionsaffecting such individuals.

29 C.ER. § 1604.11 (a)(2). Basically, theconduct sought to be prohibited is anemployee with discretionary authority mak­ing acquiescence to his/her sexual advances aterm and condition of employment, or mak­ing an individual's refusal to acquiesce abasis for an employment decision.

The elements to a quidpro quo claim are:I. The employee was 3 member of aprotected class;2. The employee was subj<cted 10

unwelcome sexual harassment in theform of sexual advances or requests forsexual favors; and3. Either the employee's submissionro the unwelcome advances was an

express or implied condition of receivingjob benefits or the employee's refusal cosubmit to a supervisor's sexual demandsresulted in a tangible job detriment.In the typical qllid pro qllo sexual harass­

ment case, supervisors rdy upon their appar­ent or ac£ual authority to extort sexual con­sideration from the employee. Ewald v.\~rn.k Family Food Corp., 878 S.W.2d 653(Tex. App. - Corpus Christi 1994). Theobjectionable character of quid pro quo sex­ual harassment is the abuse of authority onthe pan of the employer and/or itS supervi­sors. On this point, the court in Ewaldobserved that:

In [quid pro quo] cases, supervisors usethe means available to them to accom­plish the prohibitive purpose-theiractual or apparent authority to hire,fire, discipline, or promote. Becausesupervisors act within ar least the

apparent scope of authority entrustedto them by the employer when theymake employment decisions, theirconduct can fairly be imputed to thesource of that authority, the company.For this reason. in such cases, the employ-

er may be held strictly liable for the conductof supervisory employees having actual orapparent authority over hiring, advance­ment, dismissal and discipline under thetheory of respondear superior. Id.; JU also,Burlington IndllSrrits, Inc. v. Elkrrh, infra.

"Hostile environmenr" sexual harassmenrinvolves no tangible job benefit or detri­ment. In this instance, sexual harassmentoccurs when an employer subjects anemployee to sexual innuendos, remarksand/or physical acts which are unwelcomeand so offensive as to "alter the conditions ofthe employee's employment and create anabusive work environment." This form ofsexual harassment was first recognized as sexdiscrimination actionable under lide VII ina case involving a bank. Mmtor Sav. Bank,FSB v. Vinson, supra. In M~rjtor, the

Supreme Court concluded that:Sexual misconduct constitutes [pro­hibited] "sexual harassment" whetheror not it is directly linked to the grantor denial of any economic quid proquo, where such cOl1duct has tlJe purpouor 4fict ofunrMsol1abiy inurfiring with0.11 individua/i work pnfonnanct or crt­

tiling an intimidaril1g, hostik or offin­siv~ worldl1g tnvironmtnt.Sexual harassment based upon the exis­

rence of a hostile work environmentincludes five elements:

I. Plaintiff belongs to a protectedclass;2. The Plaintiff was subjected tounwelcome sexual harassment;3. The harassment complained ofwasbased upon sex;4. The harassment complained ofaffected a term, condition or privilege ofemployment; and5. The existence of respondeat superi-or liability.

Su Crist v. Focus Homes, Inc.35 0 area ofsexual harassment law has created more con­fusion than the issue of what constitutes ahostile work environment. This confusionis compounded by the fuCI that neithercourts nor the governing agencies havedeveloped a dear-cur definition of wharkind of behavior creates a hostile work envi­ronment and what degree of severity is nec­essary to make the work cnvironmenr

unlawful.In Harris v. Forklift SystffllS, Inc., supra,

the Supreme Court observed that a hostilework environmem is nm created by mereunerances ofepithets which engender offen­sive feelings in an employee. On the otherhand, the work environmenr does not haveto he so abusive or hostile so as [0 "seriouslyaffect the plaintiff's psychological well-beingor leave him/her to suffer injury" before lia­bility will arise. Therefore, the line betweenliability and non-liability lays somewhere inthe middle.

In Harris, the Court established a [Wo­step process for evaJuating a claim of sexuaJharassmenr on the basis of hostile workenvironment. First, the complainingemployee must su.bj~ctivdJpN'Uiv~ the workenvironment as being abusive or hostile.Second, the conduct must he severe or per­suasive enough so as (0 create an obj~ctjv~1y

hostile or abusive work environment, whichis co sayan environmem that a reasonableperson would find hostile or abusive.Factors in making this determinationinclude:

1. The frequency of discriminatoryconduct;2. Its severity;3. Whether ir is physically threaren­ing or humiliating;4. Whether it unreasonably imerfereswith the employee's work performance.36

While the effecr on the employee's psy­chological welJ-being is relevant, a find­ing thar an employee's psychological well­being did not sustain any injury will nOtpreclude the finding of a hostile workenvironmem.The conduct complained of in Harris

involved the behavior of the company's pres­idem and is instructive as to what conductrises to the level of actionable sexual harass­memo According ro the Court's opinion,the president engaged in the followingbehavior:

I. Told the plaintiff (who was awoman) on several occasions in the pres­ence of other employees "you are awoman, what do you know" and "weneed a man as the ren tal manager" and atleast on one occasion called her a "dumbass woman."2. On one occasion, the presidentsuggested in from of other employeesthat he and the plaintiff "go to theHoliday Inn and negotiate [her] raise."3. The president occasionally askedthe women employees to remove coins

from his front pocket and threw items onthe floor and directed the womenemployees to pick them up.4. The president often engaged incomments containing sexual innuendosand made comments concerning hisfemale employees' clothing.5. The "final straw" occurred whenthe president, who was commencing onthe plaintiff's success in arranging a dealwith a cuStomer, stared in from of orneremployees "what did you do, promise theguy ... some [sex] Saturday night?"37In a hostile environmenr case, the con­

duct at issue is evaluated as a whole in thecontext of all relevant circumstances.However, the conduct does not have to beexplicitly sexual in nature if it is sufficientlyabusive so as to place members ofone sex ata disadvantage in the workplace.38 As aresult, in a hostile environment claim, aplaintiff may be required to show that a"pattan or practiu" of harassment existed.Set t.g.. Winsor v. Hinckky Dodgt, Inc.,3' inwhich plaintiff was constantly harassed byco-workers who subjected her to physicalassaults, lewd nicknames, vulgarnotes/drawings and the spreading ofrumors, which were true, that she had anaffair with the sales manager of the srore.The absence of tangible job detrimentrequires a commensurately higher showingthat the sexually harassing conduct was pa­vasive and destructive to the working envi­ronmem. Two types of cases fail to meetthis standard. The first class involves the so­called single incident case.40 An example ofthis type of claim is illustrated in Jones v.Clinton, supra. In jonts, the plaintiff, whowas a state employee, alleged that thenGovernor of Arkansas Bill Clinton invitedher to a hotel room whereupon he allegedlyopened his pants and invited her to engagein oral sex. She refused and later sued whenher name appeared in an expose of Mr.Clinton describing the hotel incident. Inrejecting her claim, the district court ruledthat, even though such conduct is boorishand offensive. this single incident was not sosevere and pervasive as to alter the terms andconditions of her employment, nor was itone of those "exceptional cases" in which asingle incidem of sexual harassment, such asan assault, is deemed sufficient. See e.g.,Crisonino v. New York City Homing Auth. 41

(plaintiff's supervisor called her a "dumbbitch" and shoved her to the floor causingher to sustain physical injuries); Creamer v.Laidlaw Transit, Inc. 42 (plaintiff was physi-

cally grabbed by the wrist and forciblypinned to a pool table by a co-worker);Tompka v. S,akr Corp.43 (plaintiff was sub­jected to a rape in addition to vulgar andabusive language and offensive remarks con­cerning her body); Campbt" v. Kansas StoltUlliversiry44 (plaintiff was struck on the but­tocks with a hoard by supervisor who alsotold her sexually explicit jokes).

Except for those extreme cases involvingphysical assaults, employees who have expe­rienced nothing more than sporadic boorishor offensive behavior will not be entitled to

pursue a sexual harassment claim pursuantto Tide V1I because such conduct cannotreasonably be expected to alter the terms orconditions of the employee's employment.On this point, the Supreme Couer has stat­ed specifically that the "conduct must beextreme to amount to a change in the termsor conditions of employment." Faragher v.City of Boca Raton, supra. Given this highlegal standard. some lower courts have raisedthe amount of proof necessary to state a sex­ual harassment claim. The following casesprovide an example of this trend:

1. Plaintiff's sexual harassment claimbased upon five separate incidents over a16 month period was rejected eventhough the conduct included requests byher co-worker for plaintiff to undo hertOP blouse button, his looking down hershirt and making comments about "thattime of the momh." The Court foundthat the conduct was boorish bur notactionable. Sprague v. Thorn Amaicas,Inc., 129 F.3d 1355 (10th Cir. 1997).2. Plaintiff's proof of 8 to 10 sexuallyexplicit drawings coupled with jokes of asexual nature and conversations at workconcerning a strip club was held to beinsufficient to rise ro the level of action­able sexual harassment. Skouby v.Prudmtiallns. Co. ofAm"ica, 75 EE.P.748 (7th Cir. 1997).3. Female plaintiff who was given aBible "booklet" titled "Spirit of Jezeble"by her supervisor after she went aroundhim and reported a problem to her super­visor's superior was found not to havestated a sexual harassment claim eventhough she may have been offended bythe publication. Wtlkr v. Citation Oil 6­Gas Corp., 84 F.3d 191 (5th Cir. 1996).4. A supervisor's comments thatfemale customers were "bitchy" and"dumb," as well as his gawking at femaleco-workers was deemed inappropriatebur not severe and pervasive enough to

fol. II SI. 1/81mler 1199 He ,Irkusll LIWW 15

rise [0 the level of sexual harassment.G'~ason II. Mesirow Financial Ins., 118

F.3d J 134 (7th Cir. 1997).

IV. Required Adjustments to the NewGameA. The Two Theories of SexualHarassment Have Merged

It is in the application and interactionbet\veen these twO legal theories of recoverythat the most signiflcam changes in sexualharassment law were forged by the SupremeCourt in Faragher v. City o/Boca Raton45 andBurlington Industries, Inc. v. Ellerth.46 Inthose cases, the Court expressly defined forthe first time the legal rules governingemployer liability for unlawful harassmentcommitted by a manageriaJ or supervisoryemployee.

The Court in Ellmh held that anemployee subjected [0 quid pro quo sexualharassment in the form of threats [0 denyher job benefitS for refusing her supervisor'sadvances couJd pursue a Title VII claim eventhough she did not suffer any job detrimenr.In reaching its decision, the Court did notdiscard the "quid pro quo-hostile work envi­ronmenr" distinction; rather it adoptedthese labels as legal guideposts in determin­ing threshold issues raised in any particuJarcase involving allegations of sexual harass­menr discrimination. "We do not suggestthat the terms ... are irrelevant to Title VIIlitigation. To the extenr that they iUusuatethe distinction bem'een cases involving athreat that is carried out and offensive con­duct in general, the terms are relevant whenthere is a threshold Iquestion ofliability]."47However, the terms are not controlling fordetermining liability for supervisory harass­ment. According to the Court, if a supervi­sor engages in quid pro quo harassment andthe employee suffers job detriment, strictliability will apply. Id. at 14. However, if nojob detriment is suffered, the plaintiff canstill recover if the supervisor's conduct creat­ed a hostile work environment.

In Faragher. the plaintiff was a life guardfor the city of Boca Raton who was subject­ed to continuous harassment from her malesupervisors. She described her working con­ditions as a "sexually hostile work environ­ment" which included physical touching,lewd commentS and requests for sex andthreats from her supervisors. In this case,the Court determined that employers arevicariously liable for the sexual harassmentcommitted by supervisory employees.Specifically, the Court held that. "an

16 Tbr ,Irkansas L1IITrr lol.llllo.l/Sommer 1999

employer is subject to vicarious liability to avictimized employee for an actionable hos­tile environment created by a supervisorwith immediate (or successively higher)authority over the employee."

The Court also adopted an affirmativedefense for employers. This defense is dis­cussed more fully below; however. the cen­tral feature of the defense is a requirementthat employers take steps to prevent, as wellas remedy, unlawful harassmenr.48 At mini­mum, this requires employers to implementanriharassmenr policies and design effectivereporting procedures.49 Failure to take theseminimum steps will result in liability with­out the benefit of any defense. For example,in Faragher, me city had implemented ananti-harassment policy and reporting proce­dure; however, the proof revealed that thelife guard employees were nOt informed ofor given a copy of the policy. Moreover, theCourt observed that in addition ro its failureto disseminate itS policy, the city also failedto monitor itS supervisors and itS reportingprocedure did not include any assurancethat the harassing supervisors could be by­passed. Consequently, the Court found as amatter of law that the city did not act rea­sonably in taking steps to prevent sexualharassment; hence it could not take advan­tage of the affirmative defense. soB. Levels ofLiability

In light of the Supreme Court's opinionsin Faragher and El'~rth there are four "levels"of employer liability. The distinctions arebased upon: (1) the type of hatassment atissue and (2) the status of the purportedharasser. The following chart summarizesthe new liability rules governing sexualharassment cases:

I.Quid Pro Quo Harassment

.. Supervisor/Management Participation... Adverse AqioD !lnd/or s\lb!J)is~iQn by employee= Strict Liability

2.Quid Pro Quo Harassmem(Which rises to rhe level of a hostile work envi­ronmem)... Supervisor/Management Participation... NQ advnK agio" and/or submiMioo

.. Vicarious Liability

3. Hoslile Work Environment+ SUlX'rvjsorlManagemeOl Pmicjp:ujon

.. Vicarious Liabiliry4. Hostile Work Environment

+ Co.Employtts and/or Thjrd Pauics

.. Prompt Remedial Action

Unlike cases involving managerial sexualharassment, cases involving harassmentcommitted by co-workers and presumablythird parry non-employees are still governedby the previous "knew or should haveknown standard." Williamson v. City of

HOltSlOn. 51 In Williamson, the employee wasbeing harassed by a co-worker; however, amanagement employee knew of the harass­ment and did noming to StOP or repon it.The coun held mat the manager's knowl­edge of the harassment was imputed to theCiry even though the manager had no directsupervisory control over the plaintiff or thepurported harasser. However, because theharassing conduct was committed by a co­worker, vicarious liability did noc apply.C. New Defense to Vicarious Liability

The Supreme Court's opinions III

Faragher and Ellerth not only establishedvicarious liability for sexual harassmentcommitted by supervisory employees, burthey also provided a limited defense to

employers in such cases. To take advantageof this defense. employers must plead andprove the following t\yo elementS:

I. The employer exercises reasonablecare to prevent and promptly correct anysexually harassing behavior; and2. The employee unreasonably wlsto take advantage of any preventive orcorrective opportunities provided by theemployer or to avoid harm otherwise.There are two parts of this defense: (l)

the steps to prevent and (2) the steps to

"cure." These partS can be broken down asfollows:Reasollablelless ofthe employer's conduct.

I. To prevent harassing conduct in thework place.

I. Adopt policy prohibiting workplace harassment

II. Implement a reporting proce­dure

iii. Communicate both to allemployees (training, notices,etc.)

IV. Manager's conduct in the work­place

v. Attitude of managementtowards policy and reponingprocedures

vi. Track record of policy enforce­ment

vii. Record Keeping2. To "cure" incidents of harassmenr.

i. Prompt actionii. Investigationiii. Compliance with policy and

procedureiv. Effective remedial actionv. Reasonable follow-upvi. Proper documentationvii. Respect confidentialiry

Reasonableness oftbe employee's conduct.i. Compliance with company pol­

'CY11. Compliance with reporting pro-

cedureiii. Cooperation with employeriv. Assistance in investigationv. Compliance with remedial mea­

suresvi. Personal conduct at workvii. Mitigate harm/damages

In light of the new defense granted roemployers by the Supreme Court, an inter­esting line of cases is developing at the dis­trict COUft level. See e.g., {ndest v. FreemanDecorating, Inc., 164 F.3d 25 (5th Cir.1999) (employer who promptly and effec­tively responds to sexual harassment com­plaint not liable vicariously). In response to

the Faragher and El/"th decisions, some dis­trict courtS have placed what can be viewedas a higher burden upon employees ro usetheir employers' anti-harassment policyenforcement and reporting proceduresbefore pursuing a Title VII lawsuit.Specifically, employees who know of theemployer's anti-discrimination policy andreporting procedure, bur fail ro avail them­selves of their benefits, may be barred frompursuing a Title VlI claim as a matter oflaw.See e.g., Sconce v. Tandy Corp., 9 F. Supp. 2d773 (WD. Ky. 1998) (plaintiff's case dis­missed where the proof showed that sheknew the reporting procedure bur failed rouse it and did not provide any proof that theprocedure was inadequate). Moreover, theseCOUftS have held that generalized fear ofretaliation or threats, without more, will notexcuse the employee from Failing to reportthe harassing conduct. {d.; Fierro v. SaksFifth Avenue, 13 F. Supp. 2d 48\ (S.D.N.¥.1998); see also, Jones v. USA Petroleum Corp.,20 F. Supp. 2d (S.D. Ga. 1998); but see,Wow v. Kroger Co., 1999 WL 147382(March 17, 1999); Greene v. Dalton, 164F.3d 671 (D.C. Cir. 1999).D. Prompt Remedial Action

After an investigation into a complaint ofsexual harassment. the employer will have to

make a decision as to what, if any, actionwill be taken on a complaint. Under mostcircumstances. whether or not an employeris liable for sexual harassment committed bythe complaining party's co-workers and/orthird panies is determined by its response to

unlawfuJ behavior once it receives notice ofit.

Ifconduct constituting sexual harassmentis discovered, the law requires that an

employer must take "prompt and effectiveremedial action." To avoid liability for validsexual harassment claims for harassmentcommitted by co-employees or third-par­ties, the employer must be able to offer evi­dence that it undertook prompt rem~dial

action 011 behalf of th. complailling partywhich was r~asol1ably caicu/aud to end theharassing conduct, upon learning or otherwiser~ctiving notice of the conduct. SuDomheck~r v. Malibu Grand Prix Corp.52

Though relevant to the inquiry, the reme­dial action requested or demanded by thecharging party need not be taken by theemployer in order to avoid liability so longas the remedial action taken meets the legalstandard. However. if the charging partymakes a reasonable demand, heavy weightshould be placed on that demand if it willavoid a charge being brought with theEEOC and/or a subsequent lawsuit.Termination of the alleged harasser mayconstitute prompt remedial action. but ter­mination is not always required.

I. In EEOC v. Gurney IIlCorp., 914F.2d 1195 (7th Cir. 1990), the courtfound that the employer's termination ofa harasser was not sufficient to avoid lia­biliry in an instance where the employerhad prior knowledge of the harassingconduct but failed to take action unril theemployee filed a charge of discriminationwith the EEOC.2. In Barrett v. Omaha NationalBank, 726 F.2d 424, 427 (8th Cir. 1984),the Eighth Circuit found that disciplinewas appropriate where one harasser wasreprimanded a.nd placed on probationand the other was warned that futureoccurrences would result in discharge.The employer's remedial action was suffi­cient even though neither harasser wasterminated.Other actions which may be parr of an

employer's response to a verified complajntof sexual harassment include:

1. Oral reprimands;2. Written reprimands;3. Written apology to the complainingparty;4. Transfer of the employee (0 a differentdepartment (extreme caution must betaken if reorganization is part of theprompt remedial action so that the com­plaining party does not view action takenwith respect to his/her job as being retal­iation or action taken with respect to thepurported harasser to be a promotion);S. Suspension;

6. Sensitivity training.Once action has been taken on behalf of

the complaining party, the employer has theresponsibiliry offollowing up (0 ensure thatthe remedial action has been effective. If itis determined that a problem still exists,ad.ditional action will be required.E. BriefNote 011 Retaliation

Title VlI prorects employees from retalia­tion for engaging in activities protected bythe Act. See e.g., Doll;' v. Reuben.53 Suchactivities include filing a charge, malcing acomplaint, participating in an investigationor participating in an administrative or judi­cial proceeding. S" 42 U.S.c. § 2000e-3(a)(West 1998).

In Robi",oll v. Shell Oil Co.,54 theSupreme Court expanded the Title VlI pro­tection against retaJiation ro include finneras well as current employees. In Robinson,the plainriff alleged that he was dischargedbecause of his race. After being d.ischarged,he filed a Charge with the EEOC. Whilehis Charge was pending, he applied for a jobwith another company and received a nega­tive reference from Shell Oil. He amendedhis Charge to include a claim for retaliationclaiming that his negative reference wasgiven in retaliation for his filing a charge ofrace discrimination. On appeal. theemployer argued that Title VlI only appliesto "employees" and that this term was nec­essarily limited to persons with whom theemployer currently has an employment rela­tionship. The Court rejected this argumentand found that the term "employees"included former employees who engaged inconduct prOtected by Title VlI. In supportof its decision. the Court accepted the plain­tiff's argument that to bar former employeesfrom bringing retaliation claims wouldeffectively vitiate much of the protectionafforded by Title Vll. Further, the Courtaccepted the EEOC's position that the anti­retaliation provisions of Title VlI would bevirtually destroyed if former employees can­nOt bring such claims because an employerwouJd be able to retaliate with impuniryagainst an entire class of persons exercisingtheir rights under Title VlI, ~.g.• complaintsregarding discriminatory termination orfailure ro hire.55

The practical effect of the Robinson opin­ion is that, now more than ever, post-sepa­ration conduce respecting a former employ­ee couJd form the basis of a retaliationclaim. Many employers have already insti-

Sexual HarrassmentContinued on Page 45

fol. II NI. I/Sulmer 1999 TIe ,Irkams Lawrer Ii

.Iudil'ial .\d\·isOl·~· OpinionsThe Judicial Advisory Opinions are wyllie" and provided by the Arkansas Judicial Ethics Advisory Committee

Hono,able Ralph C. OhmHot Springs, AR

Advisory Opinion 99-02Ap,;] 9, 1999

Your letter informs the comminee that for sixyears you have served as the civil anorney forGarland Couney. In chis capacity, you handle allciviJ marters in which Garland County needs rep­

resemalion or advi~. In particular. you defendall civil litigation in which Garland County isnamed as a parry, you provide advice and opin­ions to County employees and e1ecred officials,and you anend all Quorum CoUrt meetings to

answer questions by various members of theQuorum Court. Lastly, you assist in draftingsome of the ordinances and/or reviewing ordi­nances on behalf of members of the QuorumCourt.

In addition to that on·going position, youhave recently been elected (Q serve as a municipaljudge. Nk. Code Ann. §16-17-108(ww) permitsthe Quorum Court of Garland Counry and theBoard of Directors of the Ciry of Hot Springs tocreate two judgeships for the Hot SpringsMunicipal Court. You ask whether the Code ofJudicial Conduct permits you to serve as theMunicipal Judge (Division II) and, in yourcapacity as a private anorney, as the civiJ attorneyfor Garland County.

You have also stated that you have enteredinto an agreement, that you will preside over citycases, and that the other judge (Division I) willhandle all cases involving county ordinance,county officials, the Garland County sheriff'sdepartment, and the Arkansas state police. (Weare unable to comment on whether this is a fairor equitable distribution for the workload.)

However, despite your arrangement, theCommittee remains troubled by this situation.Canon 1 requires judges to uphold the indepen­dence of the judiciary. Threats to your judicialindependence are nOt merely theoretical. Forexample, the Statute sers forth 2 salary range forthe municipal judge, with the governing bodiesof the city and council seuing the salary. In the­ory you might be advising the quorum court onthe salary to set for yourself. Conversdy, a leg­islative body upset with your judicial rulingsmight tue action 2ga.inSt you in your role ascounty anomey. Canon 2 requires judges to

avoid even the appearance of impropriety. Inlight of the close relationship necessary berween acounty anomey and county officials, the Starus ofa judge who is compensated by the county andsimultaneously is employed by the county as aprivate anorney can certainly appear improper inthe eye of the public.

We cannOt locate any controUing or evenhelpful authorities. Arkansas Anorney GeneralOpinion 87·469 found no conflict in an

lS Tie ,Irkllsas LI"11r 101. II !I. l/Slller 1999

Attorney serving as a city attorney and a munici­pal judge at the same time, but that opinioninvolved an anorney who was a city anorney inone county and a municipal judge in anothercounty. One treatise emphasizes the danger of aparHime judge maintaining a concurrent lawpractice; "Keeping the functions of a judge disas·sociated from those of an attorney requires anabundance of caution." Shaman, Lubet andAJfini,j"dicial Cond"" and £,hi" (2nd ed. 1995)Section 4.16.

In light of the lack of clear guidance, the pro­liferation of continuing parHime judges inArkansas, and your obvious attempts to avoidpossible conflicts, we cannot prohibit your hold­ing both positions, However, we conclude thatholding such dual roles in the same county isbom unwise and imprudent. Our advice wouldbe mat you step down as the county anorney,Should you decide (0 continue in that position,you should be parricularly alert (0 potential con­Aicts, with the resulting need to recuse as a judgeor to refrain from acting as the county attorney inparticular maners,

Honorable Rice Van AusdallHarrisburg, AR

Advisory Opinion #99·04Apdl 20, 1999

You have asked the Committee whether, asCircuit/Chancery judge, it is permissible for youto maintain membership in me American TrialLawyers Association and in the Arkansas TrialLawyers Association, both of which were extend­ed to you on a complimentary basis, that is, wim~out the yearly membership fee of $1 00,

Canon 2A provides in part:A. A judge shall respea and comply wimthe law and shall act at all times in a man­ner that promotes public confidence in theintegrity and impartiality of the judiciary,Canon 4A provides:AjUDGE SHALL SO CONDUCfTHEJUDGE'S EXTRA-JUDICIAL ACIlVI­TIES AS TO MINIMIZE THE RISK OFCONFLiCf WlTH JUDICIAL OBLiG­ATIO SA, Extra-judicial Activities in General. Ajudge shall conduct all of the judge's extra­judicial activities so that they do not:(I) cast reasonable doubt on the judge'scapacity to act impartially as a judge;(2) demean the judicial office; or(3) interfere with the proper performanceof judicial duties.In the opinion of the Committee, member­

ship in professional organizations which are ded­icated to promoting the interests of either theplaintiffs' bar or the defendants' bar and its clien­tele gives an appearance of impropriety by calling

into question the judge's ability to preside in cer­tain cases with unquestion2ble impartiality. Wenote that in other jurisdictions (Arizona,Georgia, Florida, and Louisiana) judicial adviso­ry committees have reached me same conclu­sions.

For reasons stated, the Committee believes itwould be inappropriate for you to maintainmemberships in these associations during yourjudicial tenure.

Honorable Steven G. PeerVan Buren, AR

Advisory Opinion # 99-05May 7,1999

Your letter of April 13, 1999 states that 111

your position as Van Buren Municipal Judge, youare authorized ro appoint me Municipal CourtClerk. A candidate for the position is the wife ofyour first cousin.

Canon 3(C)(4) of the Arkansas Code ofJudicial Conduct provides: "A judge shall nOtmake unnecessary appointmems, A judge shouldexercise his power of appointment only on thebasis of merit, avoiding nepotism and favoritism,No judge shall employ a spouse or other relativeunless it has been affirm2tivdy demonstrated tome Arkansas Judicial Discipline and DisabilityCommission that it is impossible for the judge to

hire any other qualified person to fill the position, ," The commentary to that Canon states:

", , , Nepotism is the appointing of relatives with­in the third degree of relationship by affinity orconsanguinity. , ." The terminology section ofthe Code defines "third degree of relationship" as"The following persons are relatives within themird degree of relationship: great.grandparem,grandparent, uncle, aunt, brother, sister, child,grandchild, great-grandchild, nephew or niece."We nOte that this definition does not include firstcousins.

In addicion, while the Code 3(E)(J)(d) seaionon disqualification expressly covers spouses, the3(C)(4) provision on nepotism does not.

In COntrast, Ark. Code Ann. §28-9·212counrs first cousins as falling wimin the seconddegree of relationship, See Monon v. BmtonP"bliJhing Company, Inc., 291 Nk. 620, 727S.W.2d 824 (1987) (disqualification was man­adatory where one of the parties involved was thehusband of the judge's first cousin despite lack ofcomact or closeness). In addition, the Arkansasstatutes disqualify the judge if a relative withinthe fourth degree of cons2nguiniry or affinity is apany. See Ark. Code Ann. §§16-13-214, 16-13­312, 16-14-103, 16-15-111, and 16-19-206.Our advisory opinion 98-04 notes the differencebetween the Code method of determining re!a-

Judicial Advisory OpinionsContinued on Page 45

Lim}l'I' IIiSripIiDiIl} .\I't ions

rhe Lawyer Disciplinary Actions are wriuen alld provided by the Supreme Court ofArkansas' Commiuee on Professional Conducl.

OTICE OF SUSPENSION OF LICENSE

Neil V. Pennick

HOI Springs, ARMarch 18, 1999

The formal charges of miscondua arose from meComplaint of Anhur and Vida Singleton. Mr. andMrs. Singleton were involved in a motor vehicle acci­dent in 1995 whettin [he responsible party for me acci­dent was killm. As membc:n of the Unitm AutoWorkers Union (UAW), me Singletons conuaed theUAW legal &rvices Plan to obrnn me names ofcoop­ct:lting :mornqs in tht:ir ara. The UAW l.Lg:lI&rvices Plan provided the inglC'rons with the name of

dl V. Pennick, Anorney :u Law, HOI Springs,Arkansas. Mr. Pennick was men employed by theSingletons in D«:tm~r 1995 to rep~nt them in aUclaims arising out of the malOr vchicle accidenr. TheSingletOns specifically requested al the tim~ Mr.

P~nnick was employed mat he f1I~ a claim againsl m~Es(lU~ of Roy Erikson, th~ responsible paJt)'. FromD~c~mb~r 1995 to August 1996, the Singletonsammpled to discuss the St:uus of [h~ir matter with Mr.Pennick bUI were unable ro do so exc~pt for one occa·sion in F~bruary 1996. As th~ Singl~tOns had not h~ardfrom Mr. Pennick at any oth~r tim~, they contacted meCli~nt Services Depanmenl for th~ UAW ~gal

$crvices Plan. A Client Services representativ~ mailed aletter to Mr. P~nnick dated April 17, 1996, advisinghim mat the Singlerons wished to learn of me Status ofmdr c:asc:. Th~~ was no resporue ITom Mr. Pennick tothis mjuest. The next contact the Singletons had wimMr. Ptnnick was in August 1996 when he telephonedth~ Singl~lons and informed them that he had receivedsen..l~menl checks from Mr. Erikson's insurance com·pany and mat h~ would mail me checks to th~m fortheir endorsement as he was rndy to dOK the tikFrom August 1996 to March 1997, the Singletons hadno funh~r contact with Mr. Pennick. On March 12,1997, Mr. Pennick Id~phoned the Singl...tons andinformed them that the sen..lem~nt checks had ~nsem to them for their endorsc=:menl. The SingletonsStated thaI the checks ....~~ nevu received by mml.Th~ Singletons th~n called Mr. Erikson's insurance car·ri~r and were lold thaI the checks had bttn mailed to

Mr. P~nnick in May 1996. The Singletons informedth~ Cli~nt Services Department of th~ UAW l...egalServices Plan of the 5CllUS of their maner. A OientServices representative wrol~ Mr. Ptnnick and mjuest·ed mat he provid~ an accounting of all fees and costsmen due bim. The Cli...m Services Represenrativ~ thencalled the insurance carrier and mjuested that theyissu~ two (2) seJnrale checks-on~ for the Singletonsand one for Mr. P~nnick. The Singl~{Qns mereaftt:remployed new counsel ro r~prcsem them in concludingrhis maner. It was shorLly thereafter thai the SingletOnsdiscovered that Mr. Pennick had not tiled a claimagainsl the Erikson estate, that the estate was closed,and that Ihdr claims against the esral~ w~~ nowbarred.

Mr. Pennick personally sign~d for th~ formal com­plaint on Nov~mber 16, 1998. Mr. P~nnick fail~d torespond. His failure to r~spond timely to Ih~

Compl:lint constitutes admission of th~ £:tCtual allega-

tions contained in the Complaint pursuant to Section51(4), Procedures of the Ark.ans2s Suprem~ CourtRegulating Professional Conduct of Anomeys .11 Law(Procedures), as m>ised J:lnu:lry 15, 1998.

Upon coMider;nion ofm~ formal complaim henin,the Commincc on Professional Conduct finds:

I. Th:lt Mr. Ptnnick's conduo in this man~r

violated Modd Rule 1.2(a), Arkansas Modd Rules ofProfessional Conduo, whe:n h~ f.t.iled to file a claim onbehalf of the Single:tons against th~ Estat~ of RoyErickson and wht'n he f.t.iled to pursue recovery againstIhe Singl~lons' underinsur~d motorist cov~rage,

although both daims ~u to be includ«l as part ofhis~prcsentation of th~ Singl~tons. Model Rule 1.2(a)requires, in pertin~nt part, that a l:lwy~r shall :lbide bya diem's decisions concerning the obj«:tives of ~pr~·sentation and shall COIUUIt with the client as to memeans by which they are to be pursuro.

2. That Mr. Pe:nnick's conduo in this manerviolated Modd Rul~ 1.3, Arkansas Model Rules ofProfessional Conduct, when h~ £:tiled 10 aCI wilh rea·sonabl~ dilig~nce and promprness in representing theSingl~(Qns in concluding th~ir case from May 1996when h~ received Ihe insuranct' procttds for the bene·fit of Arthur ..nd Vida Singleton [0 June 1997 when h~

waived any interest in thos~ proceeds. Model Rul~ 1.3requires that a lawyer sh..11 aCI with reasonable dilig~nc~

:lnd promptness in representing a c1i~nt.

3. That Mr. Pennick's conduct in this matterviolated Model Rule 1.4(a), Ark:lnsas Model Rules ofProfessional Conducr, wh~n h~ £:tilro to keep th~

Singl~lons informed ..boUl th~ starns of their ma[t~r

following mdr r..-queslS for inform:llion; wh~n h~ failed10 respond to the first It'tt~r from me UAW UgaIServices Plan-Cli~nt Sc:rvices Department on behalf ofthe SingletOns; and, when he failed to rc:spond to th~

subs..-quem le[(~r from rhe UAW Legal ServicesPlan-Client Services Department on behalf of theSingletons. Modd Rule 1.4(a) requires m:lt :l lawyershall keep :l di~nr reasonably informed abour me StatUSof a matt~r and promptly comply with reasonabl~

requests for information.4. That Mr. P~nnick's conduct in mis m:ln~r

violated Modd Rule 8.4(d), Arkansas Model Rules ofProfessional Conduct. wh~n h~ £:tilro to tak~ steps10ward concluding Ih~ m:ll1~r fOI the Singl~tons; whenh~ £:tiled to file a claim on behalf of th~ SingletoMapinst the Estate of Ray Erikson which resulted in anypor~ntial claim being fom>~r barred; and, wh~n h~

failed to til~ a claim on behalf of the: SingJ~ons againsttheir own underinsured mOlorut coverage for anyinjuries which exceeded th~ :lmount of Erikson's insur·ance policy. Model Rul~ 8.4(d) requires that a laW)'t'rshall not ~ngage in conduct thaI is p~;udicial to th~

administT:uion ofjustic~.

WHEREFORE, it is th~ decision and ord~r of th~

Arkansas Supreme Court Commincc on ProfessionalConduct rhal NEIL V. PENNICK, Arkansas Bar ID182124, be, and hereby is, SUSPENDED ITom th~

practice of law for his conducl in this maner. Mr.Pennick's suspension shall be for a period of six (6)months and shall becom~ dfective as of the date of thefiling of this Order.

NOTICE OF REPRIMANDS

Bobby Kr.noe:th ScouRogers, ARMarch 4. 1999

Th~ formal charges of misconduo arost' ITom meAffitbvit of Donna M. Rozwalb. Bobby K~nn~th

ScOtt, an attorney praoicing in Rogers, Arkansas, was

retained to represenr Ms. Rozwalka on all claims arisingout of injuries sh~ suff~red as :l result of an accid~nt atth~ Rogen Bowling AJley. Ms. Rozwalb's recoU«tionis that Mr. Scon agrttd to represent h~r on :l contin­gem fcc basis, a £:to disputed by Mr. Scon. Accordingro Mr. Scon, he never intended to charge h~r for me~presenration becaUM she was a disabled widow onMedicare.

MVt' (5) months after Mr. Scon had und~rtak~n torepresent Ms. Rozwalka, she learned from her doctorthar th~ insurance company for the bowling alley was

nor going to mak~ any mor~ medical paymt'nts on herbehalf. Afte:r learning this, Ms. Rozwalka W~nt ro Mr.Scon's office 10 discuss her options. During their con·versation, th~ pursuit of a lawsuit was discU$S(:d. Ms.ROl.walka believed Mr. Scon would file a lawsuit on herbehalf. Two (2) months after Iheir consultation, Ms.Rol.w:llka cot1l:lctecl Mr. Scott b~c:luse she had heardnothing from him. Wh~n she rea.ched Mr. Scon, shewas informed that no lawsuit had been fi1~d on h~r

behalf. As they discussed h~r 1~ga1 man~r, Mr. Scottadvised her to hir... oth~r counsc:l. Ms. Rol.walka agreedto do so. In connection therewith, she requested a copyofh~r fil~ so she could presenl it to oth~r anorneys wirhwhom sh~ spok~. Mr. Scott ~fus.ed to provid~ h~r th~

cont~nts of th~ fi1~ to which sh~ was ~ntided, ~~n aft~r

receiving a len~r from m~ Commincc's ExecutiveDirector advising him that Ms. Rozwalka wantedcopies of information and docum~nt:ltion. Since theanomeys with whom Ms. Rozwalka spoke W:lJltro tosee h~r file contents befo~ making a determinacionabout ~presenting h~r, sh~ has bttn unabl~ to retainth~ services ofanother attorney to assist h~r in h~r Itgalmatter.

Upon coMidetation of m~ formal complaint andresponse h~rdn, the Commiutt on ProfessionalConduo finds:

1. That Mr. Scou's failu~ to take any actionon behalfof Ms. Rol.waIka for a period of twO monthsfrom Sept~mber 1997 to Nov~mber 1997 viol:ltedModd Rul~ 1.3, Arbnsas Model Rules of ProfessionalConduo. Model Rule 1.3 mjuires that a lawye.r shall:lct with reasonable dilig~nce and promptness in repre­sc:nting a client.

2. That Mr. Scon's conduct violated ModelRul~ 1.5(c), Arkansas Model Rules of ProfessionalConduct, when h~ did nOl place rh~ fcc agreem~nt inwrint'n form a1rhough h~ ..greed to ~presem Ms.ROl.wa1k:l for:l fet: thaI was conting~nt on th~ outcomeof th~ m:ltl~r for which h~ was hired to r~presenr h~r.

Model Rule: 1.5(c) r..-quires, in penin~nt part, m:lt :lcontingenl fee agreement shall be in writing.

3. That Mr. Scon's conduct violaled ModelRule 1.16(d), Arkansas Model Rules of ProfessionalConduct, by f:ailing 10 lak~ :lny SI~pS on beh:llf of hisform~r c1icnt to assist her in proteet:ing her int~rests inth~ legal mattt'r involving Ih~ bowling :lUcy although

1'.1. 1·1 II. I/SuII/r I9!I The Jlrkma La~y/r 19

Ms. Rozwalka has ~qucS[ed he:: do so on numerousoccasions, and, by failing to surrender Ms. Rozwalka's

file to her so thai she may obtain other counsel to assisther in her legal malter. Model Rule 1.16(d) requires.in peninem part, that upon termination of rcprescma­tion, a lawyer shall take steps to me eXII~OI reasonablypracticable [0 protect a diem's interests, such as sur·rendering papers and property to which the client isentitled.

4. That Mr. Scon's conduct violated ModdRule 8.4{d), Ark:msas Model Rules of ProfessionalConduct, [0 wit: He has failed to cooperate with Ms.Rozwalka in her attempts 10 obtain information fromher file so that she may seck other counsel, apprisethem of the efforts taken on her behalf, and pursue heravailable legal remedies. Model Rule 8.4(d) requiresthat a lawyer shall not engage in conduci lhat is preju·diciallO the administration of justice.

WHEREFORE, it is the decision and order of lheArkansas Supreme Coun Comminee on ProfessionalConduct that BOBBY KEN ETH SCOlT, ArhnsasBar ID 858027, be, and herdly is, REPRIMANDEDfor his condua in this matter.

Alvin L SimesWen Helena, ARMarch 4, 1999

The formal charges of misconducl arose from theComplaim of William L. Wharton, an anorney for theArkansas Slate Highway and TransponalionDepamnenl. Alvin L. Simes, Anorney al Law, WeslHelena, Arkansas, represemed Larry CrumplOn in acivil case in the United States DiSlrict Court for the

Eastern Districl of Arkansas against an ArkansasHighway Police Officer for damages alleged to haveoccurred following Mr. CrumplOn's arrest.

Following initiarion of the lawsuil, Mr. CrumplOnwas deposed on December 29, 1993. Presem duringthe deposition were Mr. Crumpton, his anorney AlvinSimes, and defense counsel. In the deposition, Mr.Crumpton was asked the '1ueslion, "Have you everbttn convicted of any crimes?~ Mr. Crumpton'sresponse 10 the question was ~ 0." Mr. Crumplon wasthen asked, ~You have no criminal hislory at all?" Mr.

Crumpton responded to the question by stating "No,sir." The record d()(:S nor reflect any other statementfrom Mr. Crumplon or Mr. Simes regarding Mr.Crumpton's criminal history.

Trial in the civil case was held in Augusr 1997.During the course of the trial, Mr. Crumpton wascalled ro testify by Mr. Simes. During cross-examina­tion, Mr. Crumpton was asked the question, "Have youever bttn convicled of scrond degree murder?" Mr.Crumpton answered, "Yes, sir." Mr. Crumpton was

then asked about the answers he ~ve in his 1993 depo­sidon ro the questions of whether he h.ad bttn convict­ed of any crimes and whether he h.ad a criminal histo­ry. Mr. Crumpton staled, ~I was rold, I had a confer­

ence with my lawyer. He had kind of influenced oradvised me thai anything over ten YOts roily didn'tmaner. So I must have gOt tripped up on that deposi­(ion. 1wu thinking along (he terms that by it being sofar back ..." Mr. Crumpton was then asked, ~You wereunder oach when Ihis deposition was taken, were younot?" "I was under oath," replied Mr. Crumplon. Mr.Crumpton then was asked about convictions of first·

,10 111 ,Irkulil LiW!rr fa!.ll ~,.I/S'••lr 1m

Lil\\}PI' DisripliRill} .\ft ions

degree assault, third-degree battery, disorderly conduct,second degree forgery, resisting arrest, second degree:assault and third degree battery. Mr. Crumpmn admit·u:d thai each of the convictions had occurred and thatone of the convictions, third degree banery, hadoccurred within len (10) years prior to his deposition.The '1uestions abom Ih~ convictions were IXrmissibleon cross-o:amination because Mr. Simes allowed hisclient 10 be untruthful during his deposition aboulwhether he had prior convictions.

Mr. Simes responded (Q the Complaint and slaledIhat he never advised Mr. Crumpton that a criminalconviction which was more than ten (10) years old didnOl maner. Mr. Crumpton was under a duty to testifylruthfully and, therefore, according 10 Mr. Simes, hedid not violate Model Rule 1.1. Mr. Simes averred thathe was unaware of the criminal hisrory of Mr.Crumpton. According to him, Mr. Crumpton did not[ell him of his criminal history. Mr. Simes stated that

he instructed Mr. Crumpton to testify [ruthfully dur·ing his deposition and, without Mr. Simes's knowledge,Mr. Crumpton either testified falsely or failed 10 under·stand rhe questions asked of him .11 his deposition. AsMr. Crumpton was under a duty to restify rruthfullyand Mr. Simes did nOt know of the prior convictions,Mr. Simes assened that he could not have aided or

assisted Mr. Crumpron in testifying falsely. Mr. Simestherefore denied violaling Model Rules 1.2(d),3.3(,)(2), 3A(b) ,nd SA(d).

According to records from the Phillips CountyCircui[ Court provided by Mr. Wharton in rebuttal 10

Mr. Simes's response, Mr. CrumplOn had bttn foundguilty of Resisting Arres[ and Disorderly Condua inHelena Municipal Coun and had appe.aled the convic­tions to the Phillips County Circuil Coun. A Noticeof Appeal, in both cases, was signed by Mr. Simes andwas filed with the Circuit Court Clerk on February 3,1993. The appeals in each case were dismissed by theCircuit Court on December 6, 1993, rwenty-three (23)da)'s before Mr. Crumpton's deposition occurred.

Upon consideral'ion of the formal complaint, theresponse herein and the rebuttal information, theComminee on Professional Conduci finds:

1. That Mr. Simes's conduct violated ModelRule 1.1, Arkansas Model Rules of ProfessionalConduct, by his failure to take any action when Mr.Crumpton umru[hfully testified in his Dectmber 29,1993 deposition; by his failure to advise counsel fol·lowing the deposition that Mr. Crumpton had bttnconvic[ed ofcrimes, including Second Degree Murder;and by his failure 10 ProlXrly advise his client concern·ing issues of prior convictions, thereby allowing Mr.Crumpton's prior convictions to become subject to

crms examination and an issue ro be presented to thejury. Model Rule 1.1 requires that a lawyer shall pro­vide compelem representation to a c1iem. ComlXtemrepresentation requires the legal knowledge, skill, thor­oughness and preparalion reasonably necessary for therepresentation.

2. That Mr. Simes's conduct violated ModelRule 1.2(d), Arkansas Model Rules of ProfessionalConduct, by his failure [0 advise Mr. Crumpton to tes­dfy truthfully regarding his prior convictions at the1993 deposition; by his advice mat any prior criminalconviction which occurred more than ten (10) yearsprior did nor really matter which gave Me. CrumptonIhe impression that it was okay to deny any prior crim­inal conviction; and by his failure to counsel Mr.

Crumpton about any remedial measures when he testi­fied untruthfully in his sworn deposition. Model Rule1.2(d) re'luites that a lawyer shall nOt counsel a c1iem10 engage, or assisl a c1iem, in conduct that the lawyerknows is criminal or frnudulem, but a lawyer may djs·cuss the legal consequences of any proposed course ofconduc[ with a client and may counse.1 or assist a clientto make a good faith effort to determine the validity,scolX, meaning or application of the law.

3. That Mr. Simes's conduct violated ModelRule 3.3(.1)(2), Arkansas Model Rules of ProfessionalCondua, by his failure [0 disclose 10 the Court a[ orncar the time of the deposition that his c1iem, Mr.Crumpton, had been unlruthful in his deposition; and,by his failure to advise the Court of his client's untruth­ful sratement despite having knowledge of his client'scriminal history. Model Rule 3.3(a)(2) requires that .alawyer shall not fail to disclose a material fact to a tri­bunal when disclosure is necessary 10 avoid assisting a

criminal or fraudulent act by the client.4. That Mr. Simes's conduct violated Model

Rule 3.4(b), Arkansas Model Rules of ProfessionalConduct, by his failure to take action to prevent hisclient, Mr. Crumpton. from lestifying untruthfully; byhis counseling Mr. Crumpton that any prior criminalconviaion which was more than ten (10) years old did

nm matter; and, by his failure to take any remedialmeasure to correct the untruthful statement made byhis client. Model Rule 3.4(b) requires, in peninentpan, that a lawyer shall nOI counsel or assist a wirnessto [estify falsely.

S. That Mr. Simes's conduct violaled ModelRule 8.4(d), Arkansas Model Rules of ProfessionalConduc[, by his ac[ of remaining silen[ 2t Mr.

Crumpron's deposition in 1993 when he testifieduntruthfully about his criminal history while underoath. Model Rule 8.4(d) requires that a lawyer shallnOI engage in conduct that is prejudicial 10 the admin­istration of justice.

WHEREFORE, it is the decision and order of theArkansas Supreme Coun Committee on ProfessionalConduct that ALVIN L. SIMES, Arkansas Bar 10#89188, be, and hereby is, REPRJMANDED for hiscondua in this maner.

Shuon Ddana Ru.ssellNonh Linle Rock, ARMarch 4, 1999

The formal charges of misconduct arose from theArkansas Supreme Coun case of Ci/bl'rto RAmos v. StaU

of ArkllmflJ, CR 98-730. Sharon Delana Russell, ananomey prncticing law in Arkansas, was held in can·tempt of the Supreme Coun of Arkansas, for her con·duct in the abovementioned matter. The ContemplOrder was based upon Ms. Russell's conduct in failing10 perfect Mr. Ramos' appeal.

On August 22, 1997. Ms. Russell filed a timelyNotice of Appeal on behalf of her client. Ms. Russellhad bttn retained by Mr. Ramos to represe.nt him a[the trial court level and was thereafter never relieved ascounsel. After filing Ihe Notice of Appeal, Ms. Russelltook no other action to perfect Mr. Ramos' appeal. On

June 16, 1998, Mr. Ramos filed a Pro Se Motion forBelated Appeal in an effort ro proceed wilh his appeal.Ms. Russell acknowledges that she filed the Notice ofAppeal bur explains she did so only to allow Mr. Ramos

and his f2mily additional riml" [Q locate an attorney tohandle the .appeal, btta~ she had advised them thatshe would nOi ~ interested in handling me appealMs. Russdl also explains m.:n she orderro me tr:lJ1SCriprafter Mr. Ramos' family brought her $1,000 to do so.AlTer their aw~mpts to hire anomer anomer wen=:unsuccessfUl. Ms. RUSSC'IJ advises that she inform«l. Mr.Ramos' family that she would procero with the appealafter they brought her an additional S 1,000. Since shedid nOl hear anything e:I~ from Mr. Ramos or his fam­ily. she assumed they had abandoned pursuing meappeal or that they had hired anomer attorney.

In itS Per Curiam, thl:' Coun found mat Ms. Russellhad abandoned her client on appal, and the' Coun alsonoted that sinct 1996 she h:l.d not paid the' profession­al dues which anorneys al'(: required to rt'mil to theClerk annually. As a resulr of this F.tilurt', Ms. Russellhad represenced Mr. Ramos in the trial coun: proettd­ings at a time when she was nor in good standing as ar~ult of the unpaid professional fee. Ms. Russell aversthat she sent her 1997 bar du~ and lale fee to the Clerkprior to her representation of Mr. Ramos in CircuitCoun. However, she offered no documentation to ver~

ify this averment.Upon consideration of the formal complaint and

response herein, the Committee on ProfessionalConduct finds:

I. That Ms. Russell's F.tilure to exhibit anythoroughness or preparation in perfocting her client'sappeal subsequent to filing a Notice of Appeal onAuguSt 22, 1997, violated Model Rulc 1.1, ArkansasModel Rules of Professional Conduct. Modd Rule 1.1requir~, in pertinent part, that a lawyer shall providecompetent representation ro a client, including thethoroughness and preparation reasonably necessary forthe TC'presentation.

2. That Ms. Russell's conduct violated ModelRule 1.3, Arkansas Model Rules of Professional

Conduct, by &i1ing to rake any action on behalf ofCilbert Ramos, Jr., in pursuit of his appellate rights

from August 22, 1997, through June 25, 1998. ModelRule 1.3 requir~ that a lawyer shall act with reasonablediligence and promptness in representing a client.

3. That Ms. Russell's conduct violated ModelRule 8A(d), Arlunsas Model Rules of ProfessionalConduct, to wit: (i) Her f-ailuTC' to take any action topreserve Mr. Ramos' rights to an appeal, following fil­ing the Notice ofAppeal, caused an atreme delay in hisappellate proceedings; (ii) Her f.t.ilure to take any actionon Mr. Ramos' behalf, as well as her TC'presenta.tion ofMr. Ramos while her privilege to practice law was sus-­pended, caused the Arkansas Supreme Coun: to have to

schedule and conduct a show cause hearing; (iii) Theorderly and timely administr:uion and resolution ofappellate proceedings were delayed by her abandon­ment of her client; and, (iv) Her &.i1ure to make any

effort to have Mr. Ramos' appellale rights preservedrequired the CoUrt ro apend additional time and effortwhich would not have been necessary otherwise.

Model Rule 8.4(d) requires that a lawyer shall notengage in conduct that is prejudicial to the administra­

tion of justice.WHEREFORE, it is the decision and order of the

Arkansas Supreme Court Committee on ProfessionalConducl that SHARON DELANA RUSSELL,Arkansas Bar ID #90207, be, and hereby is, REPRI­

MANDED for her conduct in this maner.

Lil\\}PI' IIisl'iplinal} .\('fions

Ricky A..hlockConway, ARMarch 10, 1999

The formal charges of misconduct arose from the

Complaint of Ray Gorcyca. Ricky Ashlock, Attorneyat Law, Conway, Arlunsas, was TC'uined to TC'presentMr. Corcyca's company, Sunbeh Business Brokers(Sunbelt), in an ill(~rplead~r action in which Sunbehclaimed an inter~t in money hdd by Faulkner CountyTitle Company. Mr. Ashlock received $1,000 on

OCtober 2, 1997, wilh an additional $500 to be paid inov~mber, to represent Sunbeh. If there was an appeal,

Mr. Ashlock would receive 25% ofany funds collected.The only writing evid~ncing th~ agr~mem was foundon the back of Mr. Ashlock's business card. When nopleading had been filed by Mr. Ashlock by October 31,1997, Mr. Corcyca terminated the TC'presenution andrequ~ted th~ return of the TC'tainer. After Mr. Ashlock'semployment was t~rminated and another anorney wasemployed, a timdy answer was filed. Mr. Ashlockassened that he had researched the issue bur his repre­sentation ofSunbeh ended prior to the deadline for fil­ing an answer. Mr. Ashlock admitted that he had nOITC'turned any of the fees paid by Mr. Corcya and thatMr. Corcya had obtained judgment against him in theSmall Claims Coun of Pulaski County for the amountoffees paid.

Upon consideration of the formal complaint andresponse herein, the Commitlee on ProfessionalConduct finds:

I. That Mr. Ashlock &iled to put his entire contin­gent fet agreem~nc in writing thereby fulling to setforth the method by which the fee was to be deter~

mined; the perc~ntage accruing to him in the event ofseruement, trial or appeal; and whether openses wereto be deducted. Said &ilure was a violation of ModelRule l.s(c), Arkansas Model Rul~ of ProfessionalConduct. Model Rule I.S(c) requir~, in pertinentpari, that a contingent fee agreement shall be in writingand shall sute th~ method by which the fa is to bedetermined, including the percentage or percentagesthat shall accru~ to the lawyer in the n-ent of settle­ment, trial or appal, litigation and other openses to bededucted from the recovery, and whether such expens-­~ are to be deducted before or after the contingent feeis calculat'ed.

2. That Mr. Ashlock &.i1ed to return any portion ofthe rewner paid which violated Modd Rule 1.16(d),Arkansas Model Rules of Professional Conduct. ModelRule 1.16(d) requires, in pertinent parr, that upon ter­mination of representation, a la~r shall take Sleps to

the atent reasonably practicable to protect the client'sinterests, such as refunding any advanced payment offee that has nOt betn earned.

3. That Mr. Ashlock's conduct violated Model Rull'8.4(d), Arkansas Modd Rules of Professional Conduct,

in thai, his &.ilurl' to honor his agreement with Mr.Corcyca and file a response to the intl'rpleader necessi­tated the hiring of another artornl'Y to represent Mr.Corcyca's legal interests, and, the filing of a lawsuitagainst Mr. Ashlock for the recovery of funds paid.Modd Rull' 8.4(d) requires that a lawyer shall notengagl' in conduct that is prejudicial to the adminiStra­

tion of justice.WHEREFORE, it is the decision and order of the

Arkansas Supreme Court Committee 011 ProfessionalConduct that RICKY ASHLOCK, Arkansas Bar 1D

694124, be, and hereby is, REPRIMANDED for hisconduct in this man~r.

Ricky A..hlockConway, ARMarch 10, 1999

The formal charges of misconduct aro~ from theComplaint of Frances Walker. Ricky Ashlock, Anornerat Law, Conway, Arkansas, was employed to representMs. Walker in a sland~r suit. Mr. Ashlock filed suit onbehalf of Ms. Walker in December 1995 and aTemporary Restraining Order was obtained. Bur for aMotion for Panial Summary Judgment filed on July 23,1996, no furth~r action has been taken by Mr. Ashlocksince an Answer was filed by the opposing party. Ms.Walker made numerous calls to Mt. Ashlock's lastknown telephone number and wrote leners to seekinformation about her case. There was no responsefrom Mr. Ashlock to Ms. Walker's telephone calls or let­ters. As of the date the formal complaint was sent toMr. Ashlock, th~ case was still pending on the docket oflhe Faulkner County Chancery Court. Mr. Ashlockadmits that he did not keep in contact with Ms. Walkerbut asserts he never stopped representing Ms. Walker.

Upon consideration of the formal complaint andresponse h~rein, the Committce on ProfessionalConduct finds:

I. That Mr. Ashlock's conduct violated Model Rule1.3, Arkansas Model Rules of Professional Conduct, byfailing to rake any action from January II, 1996, whenthe lawsuit was filed, to July 23, 1996, when a Motion

for Partial Summary Judgment was filed and by failingto tak~ any action on Ms. Walker's behalf after the July23, 1996, Motion for Summary Judgment was filed.Model Rul~ 1.3 requires that a lawyer shall act with rca­senable diligence and promptness in rl'presenting aclient.

2. That Mr. Ashlock's conduct violated Model Rule

1.4(a), Arkansas Model Rules of Professional Conduct,in that, although Ms. Walker has made anempts to dis­cuss her case with him by writing ll"ners, he has failedto respond; and, despite Ms. Walker's repeated tele­phone calls made to him in an effort to requesl infor­mation, he &.i1ed to TC'turn her telephone calls abom themaner. Model Rule 1.4(a) requires a lawyer to keep aclient reasonably informed about the status of a manerand promptly comply with reasonable requ~ts forinformation.

3. That Mr. Ashlock's conduct violated Model Rule8A(d), Arkansas Model Rules of Professional Conduct,10 wit: His fiailure to take any timely action on behalfofMs. Walker has caused delay in the orderly and time­ly administration and resolution of Ms. Walker's caseby the Faulkner County Chanc~ryCoun, since her casehas been on the docket since December 1995 with no

action having betn taken by him on behalf of Ms.Walker since July 1996; and, has prejudiced Ms.Walker from having her matter heard in a timely man­ner. Modd Rule 8.4(d) requires that a lawyer shall norengage in conduct that is prl'judicial to the administra­tion of justice.

WHEREFORE, it is the decision and order of theArkansas Supreme Coun Committee on ProfessionalConduct lhal RICKY ASHLOCK, Arkansas Bar ID#94124, be, and hereby is, REPRIMANDED for his

conduct in this maHer.

1'01. 11,10, I/Sumlrr 1999 fhe ,Irkmll Ll"yer H

Charles Richard Lippard

Boon,ville, ARMarch 10, 1999

The formal charges of misconduC[ arose from theArkansas Supreme Court case of Gary Sly v. Srau ofArkansas, CR 98~595. Charles Richard Lippard, ananorney practicing in Booneville, was held in contemptof the Supreme Court of Arkansas, for his conduct inthe abovementioned maner. The Contempt Order wasbased upon Mr. Lippard's failure [0 protect Mr. Bly'sappeal and for representing Me. Bly while not in goodstanding.

On May 23, 1997. Mr. Lippard represented GaryBly at his jury trial wherein he was found guilty of bur­glary. The Amended Judgment reflecting Mr. Bly'sconviction and his sentence of 120 months imprison­ment was emered of record on AUgUSI 22, 1997.Following his appointment [Q represent Mr. Bly at thetrial coun level, Mr. Lippard was never relieved ascounsel. Mr. Lippard did not file a Notice ofAppeal onMr. Bly's behalf following entry of the Amendedjudgment. According to Mr. Lippard, Mr. Bly nevernotified him of his desire to pursue an appeal from thejudgment.

Nine (9) months after entry of the Amendedjudgment, Mr. Bly filed a Pro Se Motion for BelatedAppeal with the Supreme Court of Arkansas. AlthoughMr. Lippard was sent requests to submit a responsiveaffidavit on three (3) occasions, such an affidavit wasnOt received. The Pro Se Motion was submined for theCoun's action without a responsive affidavit from theanorney. At the Show Cause hearing, Mr. Lippardexplained that he had prepared a responsive affidavitand forwarded it to the Supreme CourL He admittedthat his office had received the subsequent requestsputting him on notice that the Court Clerk had nO!received a responsive affidavit. However, he was nO!

VALUATIONSCLOSE CORPORATIONSUNIQUELY QUALIFIED

CONSULTANTS

Analysis & Appraisal

Expert Witness

Valuation Arbitration

Ownership Transition Planning& Implementation

Estate Planning Assistance

SCHULTZE, MAECHLING &ASSOCIATES

319 N. Fourth, Suite 909St. Louis, MO 63102

(314) 621-8211REQUEST OUR BROCHURE

·Il The '\rkooll! LowW 1'01. 1·/ 11'0. I/SaMmer 1999

La\\JPI' Disl'ipliDill} .\dions

aware of them at the time his office staff received them,

because they were placed in the dosed file. He onlylearned of the additional requests subsequent to theShow Cause Order delivered by the Supreme Coun onSeptember 17, 1998. In the Show Cause Order, rheSupreme Court also took judicial notice that Mr.Lippard had nm paid his professional dues for the years1997 and 1998 until june 4, 1998. Based upon thisfaCt, Mr. Lippard was not in good standing when herepresented Mr. Bly in 1997. Mr. Lippard explainedthat his fa..ilure to pay his professional dues in a timelymanner was simply an error on his part. The explana­tions offered in response to the Complaint Before theCommittee were also offered as mitigation to theSupreme Court at the Show Cause hearing wherein Mr.Lippard entered a plea of guilty to the contempt cita­tion. After consideration of all the facts, the SupremeCOUrt issued a Comempt Order and fined Mr. Lippard$250 for his conduC[.

Upon consideration of the formal complaim andresponse herein, the Committee on ProfessionalConduct finds:

I. That Mr. Lippard's conduct violated ModelRule 1.3, Arkansas Model Rules of ProfessionalConduct, by failing to file a Notice ofAppeal on behalfof his dient, Mr. Bly; and, by failing to respond to thetwo follow-up requests concerning the requestedAffidavit addressing his client's Pro Se Motion for

Belated Appeal, thereby delaying consideration of theMorion. Model Rule 1.3 requires that a lawyer shall actwith reasonable diligence and prompmess in represent­ing a diem.

2. That Mr. Lippard's appearance and repre-sentation of Mr. Bly at the trial at a time when hislicense to practice law was suspended based upon hisfailure to pay his annual license fee violated Model Rule5.5(a), Arkansas Model Rules of Professional Conduct.Model Rule 5.5(a) requires that a lawyer shall not prac­tice law in a jurisdiction where doing so violates theregulation of the legal professional in that jurisdiction.

3. That Mr. Lippard's conduct violated ModelRule 8.4(d), Arkansas Model Rules of ProfessionalConduct, to wit: 0) His failure to file a Notice ofAppeal on behalf of his dient along with his failure to

file a responsive affidavit addressing the Pro Se Motionfor Belated Appeal and his representation of Mr. Blywhile not in good standing caused the ArkansasSupreme Court to have to schedule a show cause hear­ing; (ii) The orderly and timely administration and res­olution ofappellate proceeding were delayed by his fail­ure to file a Notice of Appeal on behalf of his client,Gary Bly; and, (iii) His fa..ilure to file a Notice of Appeal

on behalf of his client required the Coun to expendadditional time and effort which would not have beennecessary otherwise. Model Rule 8.4(d) requires that alawyer shall not engage in conduct that is prejudicial tothe administration of justice.

WHEREFORE, it is the decision and order of theArkansas Supreme Coun Commirtee on ProfessionalConduct that CHARLES RICHARD LIPPARD,Arkansas Bar 10 #70041, be, and hereby is, REPRI­MANDED for his conduct in this matter.

John Wdliam Patton, IVLewisville, ARMarch 26, 1999

The formal charges of misconduct arose from thecomplaint of Howard W. Huckabee and DorothyHuckabee Havard. both residents of Louisiana. Mr.Huckabee and Ms. Havard had inherited an undivided10/ 13ths ofcertain real property located in HempsteadCounty, Arkansas, comprising approximately 72 acresof unimproved land. The remaining 3/13ths of theproperty was held by nine relatives of the complainants.Mr. Huckabee and Ms. Havard desired to divest them­selves of ownership in the property.

Upon referral by an attorney in Louisiana, the com~

plainants comacted john W Panon, IV, an attorneypracticing law in Lewisville, Lafayette County.Arkansas. Following an earlier telephone conversationwith Mr. Patton, the complainants met with him at his

office in late Mayor early june, 1992. According to thecomplainants, they informed Mr. Patton of their desireto sell their interest in the realty, that timber had notbeen cut on the property for 30 or more years, and theirbelief that coal existed on the premises. Partition of therealty was not discussed and Mr. Patton advised that itwould be in the complainant's best interest to attemptto sell their undivided interest in the property and thathe would undertake solicitation of bids for the sale ofthis interest. To that end, it appears the attorney con­tacted three or four local individuals who he knew to bein the business of occasionally purchasing undividedinterests in timber and/or real propeny. Mr. Pattonalso undertook to obtain and review the abstract of theHempstead County property.

The latter part of June 1992, Mr. Huckabee andMs. Havard received correspondence from Mr. Panoninforming them that he had received three bids andrequesting that the clients contact him to discuss thebids. Shortly thereafter, they consulted with Mr.Patton in his office. The lawyer advised that he hadreceived three bids for the purchase of the 10/ 13thsinterest and that the highest bid was submitted by anindividual named jerry Owens. Mr. Owens was in thebusiness of buying and selling timber and pulp wood.At that meeting, the diems again inquired about thepotential value of the mineral rights associated with theproperty. Mr. Patton told the complainants that therewere not enough minerals to merit attention. As Mr.Owens' bid was the highest bid obtained by their attor­

ney, Mr. Huckabee and Ms. Havard decided to acceptit. Thereafter, on August 12, 1992, the panies met inMr. Patton's office at which time the complainants exe­cuted a warranty deed in favor of Mr. Owens, receivedthe agreed purchase price. and paid the attorney $1 ,000for his services.

At some point closely contemporaneous with theproperty transfer of August 12, 1992, jerry Owens hadundettaken negotiations with one of the owners of theremaining 3/13ths interest who resided in the generallocality. The purpose of the discussions was a contem­plated transaction by which the party would attempt toacquire the out'S[anding ownership interests of his rela­tives and, upon acquisition of all of the outstandinginterests in the property, Mr. Owens would convey histitle to the party in exchange for a timber deed to thewhole of the property.

On September 9, 1992, by a written fee agreement,Mr. Patton had been engaged by Mr. Owens to provide

amin I~ 2rvices and other assisr:rnce in Mr. Ov.'t:ns'quest 10 acquire rhe ourscmding property interests inthe 72 acres., (Q include ptqY.lf':nion of Itgal documentsand institution ofsuit. ifn~ry. Mr. Pauon. by dll~

terms of the fee agrument pn=pamf by him, was [0

r~ive for his ~rvices a contingC'nr fee of one~third ofthe nel proceeds received by Mr. Owens for any subse·quem sale of his interest in the tract of land. Furth('f,Mr. Owens was to convq the mineral imeresu in theland to Mr. Panon prior 10 any future conveyance byMr. Owens. Therafter, by the filing ofconvey2nces onOC(Q~r 23 and 25. 1992. a relative of the com·plainanu was vested wirh title to the entire tr.lCt subj~

(Q a timlxr dttd in bvor of Mr. Owens and thC' ~r·anee and convqance of minem tighes to Mr. Panon.In Novemlxr 1992. Mr. Owens sold his tide to thestanding timlxr to a third party for a value significant­ly higher than the purch~ pri« hC' had paid.

Following 21l cvidC'ntiary hearing at which Mr.

Pattonap~ bd"orC'" thC' CommittC'C'", and in KCOgOi­lion of and considC'r.J.tion of thC' markedly contr.J.dicta.ry and convolUlC'd nalUrC' of mC' evidC'ncC' bC'.forc meCommittC'C'". thC' respondC'OI attornC')' and mC' ExecutiveDirector undC'rtook discussions which haVe' resu.lrC'd inMr. Patton's agf"C'C'mC'nt to disciplinC' by consent pur·

suant to Section 8C. ProcC'dures of the ArkansasSupre'mC' Court Regulating Professional Conduct ofAttornC'ys at Law. Upon considC'ration of the formalcomplaint, thC' anorney's response, thC' mattC'rs present­C'd in thC' evidC'miary hC'aring. and the tC'rms of the pro­posed consem to disciplinC' hC'rcinanC'r St:uC'd. theCommittC'C' on Professional Conduct finds:

1. On occasion, prior to and on August 12,1992, Mr. Panon advised his thC'n cliC'nts mat mC'rc wasno apprC'Ciable valuC' in thC' minC'n.! rights of«min rca!property for which Mr. Patton had undC'rtakC'"rt to effecta we for the benefit of his clients. His clients' intC'restin the rca!ty was convC'")'td on August 12, 1992, with nopanicular part of me purch~ pritt anributC'd to memineral rights. On September 9. 1992. approxim:udyone month mC'r the sale of the clients' property imer·ests. the attomC')' C'ntetC'd into a ftt agtC'C'ment with thC'purchaser to provide legal services in connection withthe property and for which a portion of thC' attornC')"sfC'C'" was to be a conveyance of thC' minC'ral rights in thC'property to the attornC')'. The conscience and deliber­ate acquisition by Mr. Patton of his former c1icnts' priormineral interests in such close proximity to the time ofthC'ir diVC'Stiture of that inletC'st beliC's thC' lawyer's state·mC'nts and rcpresenrations to thC'm that the mineralrights did not merit anention. II must appear obviousthat thC' laW)'C'r placed somC' indC'pendC'nt value on mC'potential of the miner:.tl rights or else he would nO[ havegonc through me drom for the SC'VC'rance and acquisi­non of those rights.

2. Mr. Panon's conduct as descrilKd above violates

Model RulC' 8A(c). Arbnsas Model Rules ofProfessional Conduct. Rulc 8.4(c) States. in pertinent

part, that it is professional misconduct for a lawyC'r toengagco in conduct involving dC'CC'it or mistC'presenta­tion.

WHEREFORE, in accordance with the consent todisciplinC' presentC'd by Mr. Patton and the ExecutivC'DirC'Ctor, it is the decision and order of the ArlunsasSupreme Court Committe'e on Professional Conductthai JOHN WILLIAM PATrON, IV, Arkansas Bar 10#84119, be, and hereby is, REPRIMANDED for his

conduct in mis matter.

tit\\ "rl' IIisriplillill} .\d ions

NOTICE OF CAlJfJONS

Willard Proctor, Jr.LirdC' Rock, AR

March 19. 1999

The formal charges of misconduct aro~ from theComplaint of Dcxter Roscby. Willard Proctor, Jr.•AnotnC')' at Law, LittlC' Rock, Arbnsas, was employC'din January 1996 to represent Mr. Roscby in a criminalprocC'C'ding. Mr. Roscby was charged with capital mur­der in the shooting death of Ltt Byrd, a crime forwhich he was later convictC'd. Mr. Proctor acknowl­

C'dges that he was initially conDetcod by members ofMr.Roseby's family about the criminal charge and thetC'­after was rcwnC'd to dC'fC'nd Mr. Roscby. During one oftheir initial men.iogs, Mr. Roseby provided Mr. Proctorwim the names of witnesses who cou.ld offer testimonyas to his whereabouts on the day me deceased was shot.In addition. Mr. RosC'by providC'd Mr. Proctor with thelocarion of rwo gas stations whetC' he had bC'C'n on theday the victim was shot. It was Mr, Roseby's belief thatme gas Stations might have him recorded on the tapesfrom the security cameras. ThefC' 'wetC' also twO co­dC'fendants chargC'd with Mr. RoSC'by in the capitalmurder. Both of the co-defendants gave statementswhen arrested implicadng Mr. Roseby. Although Mr.Procror had this information available to him. he didnot contact the potential witnesses nor did he contactthe gas stations to tC'ViC'W the tapes from the SC"Curitycamera. Further, despite: being served wim a Motionfor Discovery by the prosecution, Mr. PrOctor neverprovided the names ofany possible defeltS(: wimcsses inrespoRSC' thereto. Mt. Proctor admits his understand·ing that Mr. Rosd>y might want to call alibi witnessesbut Mr. Proctor had hopC'd to bC' able to show that meScatC' EUIC'd to meet its burden without 21ly testimonyfrom the defense being nC'CC'SSary. In addition. ane'rin,·c;nigation. Mr. Proctor determinC'd mat any alibiwimesses would only have pUt his client in a place otherthan me crime scenC' ",-coU bC'fotC' or aftC'r the murdC'r but

nOt at mC' timC' the shooting occurred. HC' also madethe samC' decision about what the' security came'r.J. tapeswould be ablC' ro demonstrate.

At the dose of the State's evide'nce in Mr. RoSC'by'sjury trial. Mr. Proctor made a Motion for DirectedVerdict, The Motion was nOt made with the necessarythoroughness and specificity. Ai> a result of his fililureto be thorough and specific, on appC':l.l the ArkansasSupreme Court rulC'd that thC')' wetC' prevenrC'd fromtC'"ViC'Wing the sufficiency of the evidencC' presenrC'd bythC' State in Mr. Roseby's capital murder trial.

Upon considef:uion of the formal complaint andresponse herC'in, the Committee on Professional

Conduct finds:I. That Mr. Proctor's conduct violatC'd Model

Rule I. I. Arkansas Model Rules of ProfessionalConduct, when he f.t.i1C'd (Q contxt any of me variousaI ibi witnesses, during his preparation for trial; when hefa.ilC'd to contact the service stations to review me secu­rity camera tapes made the day of the shooting; when

he f.t.i1C'd to provide the names of possible defense wit·nt'SSeS to the State in response to me Motion forDiscovery; when he failed 10 subpoena any witnesses onhis client's behalf even though he was facing the chargeof capital murder; and, when he failed to be thoroughand specific in his motion for dirC'Cted verdict at thedose of the Stare's evidence thereby prcve'ming the

Arkansas Supreme Court from reviC'Wing the sufficien­cy of the cvidC'"rttt presented by the State in Mr.Roseby's capital murdC'r trial. Model Rule 1.1 rcquires.in pertinent part. that a laW)'C'r shall provide competentrepresentation [Q a client. including the thoroughm:ssand preparation reasonably necessary for the represen­tation.

2. That, from January 1996 through October1996. when Mr. Proctor failed to COnt'3ct any of thepotential alibi witnC$SCS and did not atte'mpt ro conractanyone to obtain copies of thC' tapes made with thesecurity video cameras. and. when he failed. from May1996 through October 1996. to advise the proSttUtingattorneys of the names and addresses of possible defC'f1SC':witnesses. he violated Model Rule 1.3, Arkansas ModelRulc:s of Professional Conduct. Model Rule 1.3rcquires that a lawyc'r shall act with tC'a5OnablC' diligC'nceand promptness in tCptC':SC'nting a client.

WHEREFORE, it is the dC'Cision and order of mC'Arbnsas SuptC'me CoUrt ComminC'C' on ProfessionalConduct that Willard Proctor. Jr., Arlunsas Bar 10187136, be. and here-by is. CAUTIONED for his con·duct in this manC'f.

WUJard Proctor, Jr.Little Rock. ARMarch 19, 1999

The formal chargc:s of misconduct arose from anadvertisement placed on the internet by WillardProctor, Jr., Attorney at Law, Litde Rock. Arkansas.The advertisemenr containC'd the following: ~WLllard

Proctor, Jr. & Associate'S. Specializ..ing in PersonalInjury, Criminal. and Bankruptcy. ~ The ArkansasSuprcme Court has not rC'Cognited a plan ofspecializa-

LITIGATION SUPPORTSERVICESFOR THE

BANKING INDUSTRY

Documencarion ReviewAnd Analysis

Process Evalu3[ion

Expert Witness

JUNE H. THOMASCONSULTANT(501) 868-4802

hjthomas@aristode.net

Over 15 Years Of BankingAnd Bank Regulatory Experience

1'01.1I NI. J/Sluer 1919 Tie lrkaml LiwW IJ

NEED ASSISTANCE WITH A MARITIME CASE?+ Access To OUf Fully Staffed Offices In Baton Rouge and New Orleans

+ Competitive Referral Arrangements

+ Available For Louisiana Referrals Or For Assistance In Your Area

+ AV Itlted By Martindale-Hubbell

+ Members of Arkansas Trial Lawyers Association

+ The Resources and Experience ecessary For All Trials

+ Maritime. Automobile. Employment And All Injury Cases

JAMES A. GEORGEGEORGE & GEORGE, LTD.

of counsel toKOEDERITZ & BOHRER, APLC

1-800-375-7193e-mail: jimg@georgeandgeorge.com

website: http://www.georgeandgeorge.comNew Orleans + Baton Rouge

tion for any of thl:' :tros ml:'ntioned. Mr. Proemradmits the condun but St:l.les th:tt he did not intend to

mislead the public imo believing thai he was a special­ist in the areas ofbankruprcy. criminal law. or pcorsonalinjury cases. By using the words ~specializ.ing~ and"specializes," Mr. Procmr imended only ro givc porcn­rial diems a benet idea of the rypes ofcases thai he han­dl<d.

Upon considerarion of the formal complaint andresponsc herein, the Committee on ProfessionalConduct finds:

I. That Mr. Proctor's conduct in this manerviolated Modd Rule 7.4(c), Arkansas Model Rules ofProfessional Conduct, whcn he placed an advertiSC'~

mcm on the imcrnet which contained the words "spc'~

ciaJizing" and "specializes" in pc'rsonal injury, criminal,and b:mkruprcy maners even though me ArbnsasSupre:ffic Court has not recognittd a plan ofspeeializ.a·tion in any of the atelS listed in his advertisement.Model Rule 7.4(c) requires, in pertinent part, that alawyer s.hall not state or imply thai the lawyer is a spe­cialist except when he or she has betn m:ognized as aspeeialisl under the Arkansas Plan of Speeializ.alionapproved by the Arkansas Supreme Coun.

WHEREFORE, it is the decision and order of the

Arkansas Supreme CoUrt Commin~ on ProfessionalConduct thai Willard Proctor, Jr., Arkansas Bar 10#87136, be, and hereby is, CAUTIONED for his con·duct in this maner.

Gregory E. BryantLitlle Rock, ARMarch 26, 1999

The formal charges of misconduct arose from theArkansas Supreme Coun case ofAltridAIMuhammad v.SrAU ofArkA1U4S. CR97·t048, and, from informationprovided by Aloicia Muhammad. Ms. Muhammad

hired Gregory Bryant, an attorney practicing in LittleRock, to represent her after she was charged withPossession ofa Conuolled Substance, Crack Cocaine, a

til\\}PI' Disriplillill')' .\l't ions

Class C Felony. Mr. Bryam represented Ms.Muhammad through the jury (rial wherein she was

found guilty. Mr. Bryant admits repr~ming Ms.Muhammad but explains that she was previously repre­sented by other counsel with whom she was upsetb«:ause of that counsel's failure to prepare a bona fidedefense to her charges.

There is no dispme that following the jury verdictan appeal bond of $25,000 was set, which Ms.Muhammad posted. Ms. Muhammad averred that thedar following the jury verdicl, Mr. Bryant informedhere that he would not pay the cost of the transcripth«2use she did not pay Ihe $2,000 balance of his fee.MI. Bryanl has no recollection of this. Statement, but hedoes admit that it is his praCtice to tell clients that it isthe client's obligation to pay the COSts of all trial tran­scripts. Assuming that Ms. Muhammad could andwould pay the transcript costs, Mr. Bryant filed a time·Iy orice of Appeal and ordered the transcript.

Although Ms. Muhammad advised that she informed.Mr. Bryant on severaJ occasions that she was trying to

come up with the money to pay for the transcript, Mr.BI)':l.nt explains that Ms. Muhammad made no effort topa)' for the transcript.

A Hule over rwo (2) months from the filing of theNotice of Appeal, Mr. Bryant filed with the trial courta Motion for Declaration of Indigency or in theAlternative Motion [0 Be Relieved as Counsel. Bothrequests for relief were denied the day after the Motionwas filed. Mr. Bryam admits that he tOld Ms.Muhammad that her appeal was over because the Judgehad denied the request for indigent stams. Mr. Bryantexplains that this was not an intentional misrepresenta­tion but was caused by his f.lilure to adequately reviewthe appellate rules. Ms. Muhammad was also advisedto !Urn herself in, which she did.

After much research about what remedies wereavailable to her, Ms. Muhammad filed a Pro Se Motion

for Rule on the Clerk to Procttd with Belated Appeal.The Arkansas Supreme Coun gramed the Motion in aPer Curiam Opinion wherein the Court also directedMr. Bryant to appear before them to show cause why he

should nOt be held in contempt for his f.lilure ro perfectMs. Muhammad's appeal. Mr. Bryam appeared andentered a guilty plea to contempt for failing to perfectthe 2PpeaJ. Mr. Bryant was fined $250 as a result of hiscontempt.

Upon considerarion of the formal complaint andresponse herein, the Committee on ProfessionalConduct finds:

1. ThaI Mr. Bryant's conduct violated. Model Rule1.1, Arkansas Model Rules of Professional Conduct, inthat, his. failure to file the ~Motion For Declaration ofIndigency Or In The Alternative, Motion To BeRelieved As Counsel" in the coun of proper jurisdic­tion. i.e. the appellate court, demonstrated a lack ofthoroughness in h21ldling Ms. Muhammad's appeal.Model Rule 1.1 requires, in pertinent part, thaI alawyer shall provide competent represcnt:llion to aclient, including the thoroughness reasonably necessaryfor the representation.

2. That Mr. Bryant's conduct violated Model Rule

1.3, Arkansas Model Rules of Professional ConduCt, byfiailing to timely file any motions and/or pleadings in acourt of proper jurisdiction necessary to perfect Ms.Muh2mmad's criminal appeal. Model Rule 1.3requires that a lawyer shall act with reasonable diligenceand promptness in representing a cHen!.

3. That Mr. Bryant's conduct violated Model Rule3.4(c), Arkansas Model Rules. of Professional Conduct,because he fuiled to perfect a criminal appeal for Ms.Muhammad despite the requirement of Rule 16 of theRules. of Appellate Procedur~riminal [hat trial coun­sel, whelher retained or COUrt appointed, shall continueto represent a conviCted defendant throughout anyappeal to the Arkansas Supreme Coun, unless permit­ted by the Arkansas Supreme Coun to withdraw afterfiling of notice of appeal. Model Rule 3.4(c) requires,in pertinent part, that a lawyer shall not disobey anobligation of a tribunal.

4. Thai Mr. Bryant's conduCt violated Model Rule8.4(d), Arkansas Model Rules. of Professional Conduct,to wit: (i) The orderly and rimely administrarion andresolution of appellate proceedings were delayed by hisfiling of the "Motion for Declaration of Indigency OrIn The Alternative, Motion To Be Relic:ved AsCounsel" in the improper court; by his fuilure to per­fect an appeal on his clic:nt"s behalf; by his assertion to

his cliem ,hat her appeal was over causing her to beginPro Se reprc:sentation; and, by the necessity of an order

10 appear and show cause and subsequent comcmptfinding following his appearance and admission of fullresponsibility to the Court; and, (ii) The Court wasrequired to expend additional time in conducting ashow cause hearing which would not have otherwise

been necessary, exCC'pt for his F.i.ilure to comply withappellate rules. Model Rule 8.4(d) requires that alawyer shall not engagt: in conduct lhat is prejudicial tothe administration of justice.

WHEREFORE, it is the decision and order of theArkansas Supreme Coun Commiuet: on ProfessionalConduct that GREGORY E. BRYANT, Arkansas Bar

10 #82024, be, and hereby is, CAUTIO ED for hisconduct in this matter.'O

41 He ,\rkllSl.l LI~W 101. II Sl. 1/811ier i999

Court-Appointed. Regular Court Appearances

11510 Fairview Road, Suite 100Little Rock, AR 72212-2445

Phone: (SOl) 221-9900Fax: (501) 221-9292

email;schwartz@busvalu.com

term as any other. To playa game, onemust first know who the players are andsecond, know the rules by which it isplayed. Once the game is afOOt, partici­pants mUSt be prepared to adjust to rulechanges and unfolding factual circum­stances and 10 develop and re-define strate­gies that will, hopefully, carry them to asuccessful conclusion. Of cou~, in law,panicipanrs define "success" in a myriad ofways beyond simply obtaining a jury ver­dict. This faa weighs heavily upon a par­ricipam's strategy and expectations fromspecific legal proceedjngs, as well as fromthe legal system in general.

2. Stt Mtritor Sav. Bank, FSB l.'. Vinson, 477U,S, 57 (1986), In Mmtor, [he SupremeCoun recogniud. for the first time a causeofaction under TItle VII of the Civil RighlSAct of 1964 ("To de VlI") for "sexual h...ss­ment'" as a form of gender discrimination.

3. Su Muitor Sal.'. Bank, FSB, supra; Harris v.Forklift ,!,mns, Int" 510 U,S, 17 (1993);Landgraf v. USI Film Products. - U.S. -,114 S, Cr. 1483 (1994); antal, v,Sundow!Jtr Offihort Strvicrs, Inc., 523 U.S.-,118 S, Cl. 998 (1998); Famgh" v. Cityof Boca fIR/Oil, - U,S, -, 118 S, C" 2275(1998); Burlington Jndustri~s Inc. l.'. Elkrth,- U,S, -, 118 S, C" 2257 (1998); ,u also,Gtbstr l.'. Lngo Vista hukp. School Disl.• ­U,S, -, 118 S, C" 1989 (1998) (addressingthe issue of sexual hal1l.ssmenr as a violationof TItle IX of the Civil Rights Act whichprohibits sex discrimination in public edu­carion); JOllt.r v. eHmon, - E Supp -. 1998WL 148370 (April I, 1998, E,D, Ark,)(imeresting discussion of lower coun opin­ions which have inferred from SupremeCourt decisions that sexual harassmemcommitted under color of state law violatesthe Federal Constitution's 14thAmendmenl Equal Proreaion Clause).

4, 510 U,S, 17,5. Stt discussion infra.6. For a discwsion of the general legislative

and cultural c1imare, as well as the C"'enlS

SauaJ HarrassmentContinued on Page 46

• Business Valuations• Personal Injury Damage Analysis• Divorce (Property & Child Support Issues)

Richard L. Schwartz

Certified Public AccountantCertified Business AppraiserCertified Fraud Examiner

EndnotesI. Some may question my charaaerization of

any lega.l process as being a "ga.me."Though I am alwayso~ to any alternativelabel, "game" is as an accurately descriptive

V ConclusionThe area of sexual harassmenr law is an

ever changing body of law, The SupremeCourt'S opinions in Faragh" and Elkrthmark a substantial step in clarifying the

rules of the sexual harassment game so thatall of the players will stand on a more levelfield. With this in mind, practitioners and

their clients mwt make adjustments in their

operations to avoid future liability. A work­ing knowledge of the changes discussedabove will substantially assist them in suchan endeavor.~

AccountantlEconomic Analysis

Sexual HarrassmentContinued From Page 37

tuted procedures for curtailing the amoum

and type of information given to inquiring

firms respecting former employees for fear

of state tort claims such as defamation.However, conduct which could lead to a

retaliation claim is broader than those state

claims. For example, an employer whomerely communicates the faCt thar a former

employee has filed a charge of discrimina­tion may be forced to answer a retaliation

claim even though the statement is true.Consequently, employers need to contin­

ue their efforts to limit the amount of infor­

marion provided to prospective employers.Of course, other forms of overt harassment

should also be avoided, e,g" (I) unreason­ably withholding the employee's final pay­check, (2) making explicit or implicitthrears, (3) communicating false or confi­

dential information ro third parties who donot have a privilege for receiving rhe infor­

mation and (4) placing the employee on aso-called "black list:

Honorable Donald L CorbinLittle Rock, AR

Ad';sory Opinioo , 99-06May 11, 1999

Referring (0 OlLr advisory opinion number99-04 (membership in the Association of TrialLawyers of America and Arkansas Trial LawyersAssociation), you have asked the commirteewhether you may participate in the RoscoePound Foundation Forum.

In the opinion of the committee, attendance31 a forum or symposium of a professional asso­ciation is not the equivalent of membership and,accordingly, we do nOI bdieve it would be inap­propriate for you to parricipate in the fotum.

Custom Web Site DevelopmelltDatabase ProgrammillgElectrollic Commerce

~\00-­

d"'O~, 0 ..9.,\~C

Bringing your ideasto the world's desktop,

"Specializing in LawFirms and Financial Web

Sites"

Judicial Advisory OpinionsContinued From Pa.ge 38

tionship and the Statutory method. But thatopinion involved judicial disqualification inchancery court.

Most imponanuy, the statutes do not covernepotism. The Code ofJudicial Conduct is thebasis for the restriction on nepotism, and it doesnot incorporate the natutory method of deter­mining rd2.tionship, but conta.ins irs own defin­ition.

In light of the specific language and defini­tion in the Code of Judicial Conduct, we con­clude that you may consider the spouse of yourfim cousin for appointment without the need toseek the approval of the Judkial Discipline andDisability Commission.

WebbSite Incorporated™530 N, College Ave, Bldg, A

Fayetteville, AR 72701(501) 521-2262(888) 366-9322

www.webbsite.com

1'11.1111, l/Sa••lf 1m Up ,Irklllil LI"Jlf Ii

Forensic Document Examiners Linda Taylor and Howard "Bear" Chandler are retiredfrom the Arkansas State Crime Laboratory with over 70 years of combined experience inhandwriting identification, inks, paper and other aspects of document examination.

Sexual HarrassmentContinued Fwm Page 45

leading to the passage of the 1964 CivilRighLS Aa, sugma-a/ly, H.D. Graham, Th~

Civil Rights Era (Oxford University Press1990) pp. 125-254.

7. Su Miller v. Maxwdl's 1m'l, Inc., 991 F.2d583, 588 (9th Ci" 1993), em. dmicd, 117S. Ct. 1109 (individuaJs cannot be heldliable for damages under lide VII); Grant v.Londta, Co., 21 F.3d 649 (5th Ci,. 1994),cert. dmi~d, 513 U.S. 1015; HaJ~s v.WiUiams, 88 F.3d 898 (10th Ci" 1996); sualso, Wathm v. Gma-al Ekcrric Co., 115 F.3d400, 405 (6th Cit. 1997) (individualemployee/supervisor who is not otherwisean "employer" is not liable under TItle VlI);Williams v. Banning, 72 F.3d 552, 555 (7thCir. 1995) (no individual liability underTitle VII); Bonomolo-Hagm v. CIn} Cmtral­Eva-Iy Community School Dist., 121 F.3d446, 447 (8th Ci,. 1997) (supeevisms can­not be held individuaJly liable under TitleVlI); Gary v. Long, 59 F.3d 1391, 1399(D.C. Ci,.), em. tknicd, 116 S. Ct. 569(I995) (individuaJ supervisors are not indi­vidually liable under Title VII).

8. 28 F.3d 446, 451 n2 (5th Cit. 1994), over-ruled on oth~r grounds.

9. 842 F.2d 1010 (8th Ci,. 1988).10. 560 F.2d 389, 391 (8th Ci,. 1977).11. Section 2000e(b) provides that: "the term

'employer' means a person engaged in anindustry affecting commerce who has 15 ormore employees for each working day ineach of twenty or more calendar weeks inthe current or preceding calendar yeas."

12. 519 U.S. 202,117 S. Ct. 660 (1997).13. Su discussion infra.14. 519 U.S. -, 117 S. Ct. at pp. 664-65.15. 42 U.S.c. § 1981a (West 1998).16. 42 U.S.c. § 198Ia(b) (West 1998).

Subsection (b)(3) of the Act provides thefollowing statutory limitations:(A) Employers with 15 ro 100 employteS - S5O,000

(B) Employers with 101 to 200 employ=l' 5100,000(0 Employers with 201 10500 employca - $200,000(D) Employen with SOl Of more employ=l- 5300,000

17. 42 U.S.c. § 2000e(f) (West 1998).

10220 W. Markham, Suite 20lC

Li ttle Rock, AR 72205

18. These factors are as follows:(I) Whether and the atent the employer has the "right

of con[JOl~ over the person, ~.t. when, where and howthe work is perfonncd;(2) Whether or nOt the work performed by the personrequires high IcvdJ of $kiIl;(3) Whether the employer fumisheli Ihe rools, materiaband equipment necessary to perform the person's job;(4) Whether the job i$ performed on the employer'$premisc:s;(5) Whether there i$ a continuing relationship betwttnthe person and the employer,(6) Whether the employer ha.s the right 10 assign addi­tional projccu 10 the worker;(7) Whether the employer KU the hours of work andme duration of the job;(8) Intent of the employer and pc:.rson providing $C'r­vica;(9) Whether the work performed by the person i$ panof the employer's regular bwiness;(0) Whether the person ha5' any role in me hiring, fir­ing and/or paying of assistants;(I I) Whether the person is a business entiry, r.g. part­nc:rship, limited liability company, etc;(2) When is pel'$On paid;(13) How is the pel'$On paid;(14) Whelher the person is en~ged in his or her owndistinct occupation or bwiness;(5) Whether the employer is a distinct business; and(16) Whether the employer ha5' the right to fire the per­son perfonning the job and/or WI person'$ assisunu.

19. 767 F.3d 745 (4,h Cir. 1996).20. - U.S. -, 118 S. Ct. 998 (1998).21. 28 F.3d 446 (5th Cir. 1994).22. 72 F.3d 1191 (4,h Cir. 1996).23. 99 F.3d 138 (4th Ci" 1996), cited in

Gnaci<, 118 S. Ct. at p. 100 I.24. 119 F.3d 563 (7th Cit. 1997).25. - U.S. -, 118 S. Ct. at pp. 1001-2.26. It!. at p. 1002.27. 490 U.S. 228, 109 S. Cr. 1775 (1989).

Female employtt, who was told she neededto act and dress more feminine, amongother things, was denied a promotion topartnership status and sued for sex discrim~

ination. In its decision, the Supreme Courtmade it dear that Title VII does not permitan employee to be treated adversely becausehe/she does not fit a particular genderstereotype.

28. 119 F.3d 563 (7th Cit. 1997) (COUrt ruledthat a man harassed because of his highvoice, earring, long hair and other charac~

teristics that did not mttt his co~workers'

ideal for masculinity stated a claim under

Phone/fax: 501-225-8985

e-mail: tayloreci@aristotJe.net

Tide VII).29. 950 F. Supp. 1375 (N.D. III. 1997).30. 125 F.3d 1366 (lOth Cir. 1997).31. 477 U.S. 57 (1986).32. 53 F.3d 1531 (10th Cit. 1995).33. Id.34. 1998 WL 148370 (Aptil I, 1998, ED.

Ark.).35. 122 F.3d 1107 (8th Cit. 1997).36. Hathaway v. Runyon, 132 F.3d. 1214 (8th

Cit. 1997).37. Compare the facrs of HarriJ with the allega­

tions in Kimuy v. Wal-Mart Slam, Inc.• 107F.3d 568 (8th Ci,. 1997). In Kimuy, theplaintiff aJleged that her supervisor andmanager engaged in abusive and offensiveconduct such as kicking her legs, referringto her and orner workers as "mother-f-ers,""lazy sons of a bitches" and referring tofemale employees' "tight~ass jeans" whenthey wauld bend aver. !d. at pp. 571-72.

38. Gil/ming v. Simmons /ndwtrin, 91 F.3d1168 (8th Cit. 1996), citing, Kopp v.Samaritan Health Sys. Inc., 13 F.3d 264, 269(8th Cir. 1993).

39. 79 F.3d 996 (10th Cir. 1996).40. Hathaway v. Runyon, 132 F.3d 1214 (8th

Cir. 1997) (a single offensive utterance orexposure to distastefUl conduct does not riseto the level of a litle VII violation).

41. 985 F. Supp. 385 (S.D.N.Y. 1997).42. 86 F.3d 167 (10th Ci" 1996).43. 66 F.3d 1295 (2d Cit. 1995).44. 780 F. Supp. 755 (D. Kan. 1991).45. - U.S. -,118 S. Ct. 2275 (1998).46. - U.S. -,118 S. Ct. 2257 (1998).47. Elkrth, 1998 WL 336326 at p. 8.48. S~~ ~.g.. Williamson v. City O/Howlon. supra.49. Id.50. Id. at pp. 20-21.51. 148 F.3d 462 (5th Cit. 1998).52. 828 F.2d 307, 309 (5th Ci,. 1987).53. 77 F.3d 777 (5th Cir. 1995).54. 519 U.S. 337,117 S. Ct. 843 (1997).55. Robinson, 117 S. Ct. at p. 848-49.

Shawn Twing graduated with honors fromthe Universiry of Arkansas Law School in1993. He practices in the area of labor andemployment law with an emphasis on civillitigation and is associated with theAmarillo, Texas, law fitm af Sprouse, Smith& Rowley, l~C.

,II Tie IrkllSll Llw!lr fll. II !1.l/Sllllr 1m

III \1l'llllH'iilIlI

ARKANSAS BAR FOUNDATION

MEMORIAL GIFTSThe Arkansas Bar Foundation hopes

attorneys think of it when they wish romake a memorial gift honoring a familymember, a colleague or a friend who was alawyer, a judge or a friend of the profession.Memorial gifts are recorded in rheFoundation's Memorial Book and provide alasting tribute. Memorial cards are sent bythe Foundation to the family of thedeceased advising them of the contribution.

Memorial gifts to the Foundation aredeductible for income tax purposes andsupport the Foundation's work in m:Ucingscholarship funds available for law Students,financing research and other projects whichsupport the sysrem of justice, aiding in edu­cation of the public about legal matters,and funding other legally related charitableefforts.

Memorial gifts may be sent directly tothe Foundation. Contributions or requestsfor more information may be sem £0:

Arkansas Bar Foundation, 400 W.Markham, Litue Rock, AR 7220 I, or call(501) 375-4606 or 800-609-5668.

Just call us. We're the packaging and

shipping experts. No matter how large or

how valuable the bequest, well pick

it up, custom package it and make~ sure it

gets there safely, guaranteed. So there are

no further losses to deal with. For your free

Estate Distribution Kit,M~

call 1-888-900-9038. ~••• 6GnJB.The Packaging and Shipping Experts,.

How to ensure all thebeneficiaries getwhats

coming to them.

IN MEMORY OF MARGARET MURPHY

Bill and Mary Lou MartinCharles B. RoscopfPaul and Marcella Young

The Arkansas Bar Foundation acknowl­edges with grateful appreciation thereceipt of memorial gifts and scholar­ship contributions given in memory ofthe following individuals from March26, 1999 through June 10, 1999.

IN MEMORY OF WALTER .BLOCK

W. W. Bassett, Jr.Partnership of Bridewell &

BridewellCyril and Betsy HollingsworthAnnabelle Clinton ImberHenry Woods

[N MEMORY OF TOM B. SM.TIl

W. Christopher BarrierDonald Raney

January 20-22, 2000

Mid-Year MeetingPeabody Hotel

Memphis, Tennessee

Mark Your Calendars

Jon Coleman, 52, of Jonesboro, diedrecently at his home.

Born in Hattiesburg. Mississippi, helived in Jackson, Mississippi. before moving[Q Jonesboro in 1954. He was a partner inBradley-Coleman Law Firm in Jonesboro,served 7 1/2 years in the Arkansas NationalGuard and was a member of SouthwestChurch of Chrisr.

He was a graduate of Jonesboro HighSchool and attended Freed-HardemanUniversio/ in Henderson, Tennessee. beforeuansferring to Harding University, wherehe received an undergraduate degree. Heearned a law degree from the University ofArkansas and a master's degree from meUniversity of Memphis.

A member of the Board of Directors ofArkansas Glass Container Corporation ofJonesboro. he was a member of theArkansas Bar Association, the CraigheadBar Association. and the NortheastArkansas Bar Association.

He was preceded in death by his parents,former Fire Chief Ruff Coleman and DeeColeman Cooper.

Survivors include his wife, M.rs. JanWarren Coleman, and two sons, JonWarren Coleman and Kyle ThomasColeman ofJonesboro.

Honorary pallbearers included membersof the Craighead Counry Bar Association,Jonesboro Coumy Bar Association,Jonesboro Kiwanis Club, the SecondJudicial DiStrict circuit, chancery and juve­nile judges, members of the MetropolitanArea Planning Commisssion and officersand directors of Arkansas Glass ContainerCorp.

Jon ColemanJonesboro. Arkansas

E-Mail usat:mtdfritz@mtnhome.com

flllJ SI.l/SWN II!! ne IrulYl La~J!I'li

1\S1 R \ \(1 ))f H \Sf

For Advertising Information Call:501·37s.4806 or 800-&19·5668

compliance with Rules 7.1, 7.2 and 7.3(e).See 8.4(a).0

PAGE5

18464414172311

Back Cover33131721

Inside Bad< Cover45424722432245

Inside Front Cover2248

•

ABA Retirement ProgramADR,loc.Examination ConsultantsGeo<ge &GeofgeJoM McAlisterLandted1 DataLegal Directories PublishingLe~, Law PublishingLexis·Nexis On·lineLOIS,loc.Medical Experts Refe"aI SefVicePaul MixonMorganthau, O'Toole &Co., loc.Rebsamen InsuranceRichard L SchwartzSchuitze MaectllingT1le Pacl<aging StoreRedPoint SystemsJune 1OOmas, CoosultantUAMS Paternity TestingWebbsite, Inc.West GroopCaroline L WMinghamC1assffied Advertising

Growing Texarkana firm seeks associate or con·tract anorney with 2-5 years of insurance defenseexperience. Send resume, writing sample andsalary rcquirc:mcms to:

Crisp, JOtdan & Boyd, LLP.Artn: R.W. Jordan

P.O. Box 6297,lharkana, TX 75505-6297.

(ndp\ to .\dwl't iSPI's

f1assil'it'd .\dwl't isinff'-'

This Rule is not intended to prohibit alawyer from contacting representatives oforganizations or groups that may be inter­ested in establishing a group or prepaid legalplan for their members, insureds, beneficia­ries or other third parties for the purpose ofinforming such entities of the availability ofand details concerning the plan or arrange­ment which the lawyer or lawyer's firm iswilling to offer. This form of communica­tion is not directed to a prospective client.Rather, it is usually addressed to an individ­ual acting in a fiduciary capacity seeking asupplier of legal services for others who may,if they choose, become prospective clients ofthe lawyer. Under these circumstances, theactivity which the lawyer undertakes incommunicating with such representativesand the type of information transmitted to

the individual are functionally similar to andserve the same purpose as advertising per­mitted under Rule 7.2.

The requitement in Rule 7.3(b) that cer­tain communications be marked"Advertisement" does not apply to commu­nications sent in response to requests ofpotential clients or their spokespersons orsponsors. General announcements bylawyers, including changes in personnel oroffice location, do not constitme communi­cations soliciting professional employmentfrom a client known to be in need of legalservices within the meaning of this Rule.

Paragraph (f) of thi, Rule would permi'an attorney to participate with an organiza­tion which uses personal contact to solicitmembers for its group or prepaid legal ser­via: plan, provided mat the personal contactis not undertaken by any la"vyer who wouldbe a provider of legal services through theplan. The organization referred to in para­graph (f) must not be owned by or direc'ed(whether as manager or otherwise) by anylawyer or law firm that participates in theplan. For example, paragraph (f) would notpermit a lawyer to create an organizationcontrolled ditectly or indirectly by thela....)'er and use the organization for the in­person or telephone solicitation of legalemployment of the lawyer through member­ships in the plan or otherwise. The commu­nication permitted by these organizationsalso must not be directed to a person knownto need legal services in a particular matrer,bUI is to be designed to inform potentialplan members generally of another means ofaffordable legal services. Lawyers who par­ticipate in a legal service plan must reasOll­ably assure that the plan sponsors are in

Advertising RulesContinued From Page 22

the lawyer a desire not to be solicited by thelawyer within the meaning of Rule 7.3(e)( I)is prohibited. Moreover, if afrer sending aletter or other communication to a client aspermitted by Rule 7.2 the lawyer receives noresponse, any further effort to communicatewith the prospective client may violate theprovisions of Rule 7.3(e).

Letters of solicitation and their envelopesshould be clearly marked "Advertisement."This will avoid the recipient perceiving thathe or she needs to open the envelopebecause it is from a lawyer or law firm, onlyto find he or she is being solicited for legalservices. With the envelope and lettermarked "Advertisement," the recipient canchoose to read the solicitation, or nOt to readit, without fear oflegal repercussions.

Paragraph (c) allows targeted mail solici­tation of potential plaintiffs or claimants inwrongful death causes of action, bur only ifmailed at least thirty days after the incident.This restriction is reasonably required by thesensitiz.ed state of the potential clients whomay be grieving the loss of a family member,and the abuses which experience has shownexist in this type of solicitation.

In addition, the lawyer or law firm shouldreveal the source of information used to

determine that the recipient has a potenciallegal problem. Disclosure of the informationsource will help the recipient ro understandthe extent of knowledge the lawyer or lawfirm has regarding his or her particular situ­ation and will avoid misleading the recipientinco believing that the lawyer has particular­ized knowledge about the recipient's manerif the lawyer does nOt.

Lawyers who use direct mail to solicitemployment from accident victims or theirsurvivors normally find the names of thesepersons, whom they believe may need legaJservices, in accident reports, newspaperreports, television or radio news, or otherpublicly available information. Some acci­dent victims later die from their injuriesafter the preparation of reports and newsdissemination. In the event of such a death,an attorney, who relies in good faith upon allthe reasonably and publicly available infor­mation which creates the appearance thevictim is stiU alive at the time the lawyersends a lerrer soliciting employment, is notin violation of the prohibition against send­ing written communications within thirtydays in cases which may be the basis ofwrongful death claims.

I! T~ IrUM Li~W III. Ilk 1/!.11If 1111

I·

Facing a legal malpractice claim is some­tiling every lawyer must consider. You

need the right insurance coverage and expertlegal defense at hand. For more than 35 yearsthat s what the partnership between theArkansas Bar Association, the RebsamenInsurance Agency and CNA has provided.Our superlative combination of coverage anddefense has made us the most popular sourcefor lawyers liabiliry insurance in Arkansas.

Law firms throughout Arkansas form ournetwork of specialists in legal malpractice,prepared to defend you if a claim arises.Your defense costs are covered in addition toyour linuts of liabiliry. And you can choose tohave no deductible, meaning you pay no legalfees at all should you need defense counsel.

The fmancial strength and stabiliry of CNA,one of ti,e country s largest insurers, standsbehind you. And the Rebsamen agency, inaffiliation with the Arkansas Bar Association,has stood for dedication to the Arkansas legalprofession for decades.

More than insurance.

Your best defense':'

400 W. MarkhamLiltle Rock, AR 72201

Professional Association Croup Division501·664-8791

1'0 Box 3398Litd, Rock, AR 72203·3398

W''V'o'V.rcbsamcn.com

Thrs fXO(Ifam is Ift1erM/tten by one Of more of the CNA(XJt7l{JaIlIes. CNA is aregis/ered S8fWC8 mar/( aoo trade name0100 fflanda/Capoorm

C'NApRO

It's All About Choices

Every small law firm has its own set of unique research needs.

That's why LEXIS'"-NEXIS'" MVP for small law firms has so many choices. The choice to work at

home, at the office, or on the road (we're conveniently accessible on the Web at lexis.com).

Your choice of custom packages- at your choice of prices (all at fixed monthly rates). Plus, you

have a huge choice of value-added products and services (SHEPARD'S'", Matthew Bende

Martindale-Hubbell'" and more). Sweet.

A MEMBER SERVICE OF

IChoices you can afford., .800.356.6548 mention offer 1262

www.lexis.com

LEXlSlf'C NEXIS are Jeg<Sltllltl t1Ielemar~ 01 Reed Etsmer f'loperUes In::. use<llITlder licenseThe INFORMATION ARPJ,Y logo ~ atrademart oIlleecl EisevlefPr~ n: _used lIldllr lianSeC 1999 t:x!S-NEXlS,' dlVT$lOl'l 0I!Wld EI!ieVleIIrc All f9n reserl'll(!

fjLEXIS··NEXIS·MVP for Small Law Firms