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VOLUME 29, UMBER 4

PUBLISHERArkal1sas Bar Association

ARKANSAS BAR ASSOCIATION400 \VI. Markham linle Rock, Arkansas 71201

Letter From The Editor

The Commercial That SellsBy Stacey DeWiTt

"The initial impact is clear.We can regulate ourselves or

operate under imposedrestrictions"

Commercializing our profession. Some despise it.

Othe" bank on it. Whatever your view, the UnitedState\ Supreme Court has put some teeth into thelawyer adveni\ing debate.

In June, the Court upheld the Florida Bar's 30 day ban onattorney solicitation of accident victims. The ruling shouldencourage professional introspection.

This issue of The Arkallsas Lawyer offers some thoughtfulperspectives on lawyer advertising. Tom Carpenter tracksthe history. Gal) Eubanks and Wendell Griffen debate therisks versus benefits and John Tull evaluates free speechimplications. Take some time for study. The Bar needsyour input.

Henry Hodges is chairing a special committee onlawyer advertising. The committee is charged with examining self-regulation and the impact of the Supreme Courtruling on lawyer advertising in our state. The initial impactis clear. We can regulate ourselves or operate under imposedrestrictions.

Lavvyer-Iegislators have promised to push a tough bill regulating commercial speech if the profession doesn"t proposeits ovvn regulations. The bill was introduced by the SenateJudiciary Commiuee during the last legislative ,ession thenput on hold at the urging of past president Bob Jones, 11\who promised Hodge"s committee and others would domore lhan jusl talk.

Self-regulation may be our savior. It should appeal tothose on both sides of the issue because it enhancesOUf public image and that benefits those who doadvertise and those who don·t. Internally imposed

\tandard\ give lawyers sub~tance and credibility. Externalwatchdogs substantiate the suspicion that lawyers can"t betrusted. Which product would you buy'

Policing ourselves helps us all. Self-regulation is a commercial that always sells.

EDITORStacey DeWitt

ASSOCIATE EDITOR,LAYOUT & DESIG

Sara Landis

EXECUTIVE COU CIlTeresa M. Wineland

A. Glenn VasserR. Scott Morgan

Don Hollinw;:worthCharles L. Carpenter, Jr.

Stanley D. RaulsCharles L. Harwell

Robert R. EstesLouis B. Jones, Jr.Donald P. Raney

Mike EverettMIchael E. IrwinDavid K. Harp

Mark CambianoLynn Williams

OFFICERSPresident

Carolyn WitherspoonPresident-Elect

Harry Truman MooreImmediate Past President

Robert L. Jones IIISecretary -Treasurer

Frank B. SewallExecutive Council Chair

Sandra CherryYoung Lawyers' Section Chair

Stuart MillerExecutive DirectorWilliam A. Martin

Assistant Executive DirectorJudith Gray

Thr Arkansas LaWVt'f' (L'SPS 546-{).W) ~ publi~hed quarter1\" by the Aritans.b Bar Association Second eWe; postagepaid at Little Roclr... Ark.uls<b POSTMASTER: sendaddress changes ttl l1u Ar,l:l;Ir,sas Lawyrr. -tOO \"'-e;1Markham. Little Rl"lCk. Arkansas 72201, Subscnption priceto nO.Nnembers of tIw Arkansas Bar Associahon $15.00 peryear and to member.. 10.00 peT ,ear included in annualdues. Any opmlOn ell;pressed hen'''' is thai of the author.and not necessanly that of the Arkan.s.as Bar Association orn,t! Arkansas Lawyer. Contributions to n'l! Arkf.lllsasLawyer are welcome and should be sent in two copies toEDITOR, The Arkansas LArllY", 400 \\'e:.1 \1arkham. LittleRock, Arkansas 72201 All inquiries ~ardinK advertisin~

<Jlou1d be sent b."t Thl' .4..rkalls4b LAwyn .1t the aboH'addreo:;..~ .

Special thallks to Tom Carpenter for his coullsel all this issue.

CORRECTION

In the Summer 1995 issue of The Arkallsas Lawyer, we stated that CarolynWitherspoon graduated from the University of Arkansas School of Law. We

would like to correct that as follows: Carolyn Witherspoon graduated fromthe University of Arkansas at Little Rock School of Law.

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On the Cover: 'Television Reaching ToMan", Artist, Una Chesak/SIS

FeaturesA 0 TUNE ON LAWYER ADVERTISING AND

SOUCITATIOLittle Rock City Attorney Tom Carpenter tracks thedevelopment of lawyer advertising and court imposedregulation.

PAGE7

PRO

CON

THE UNIFORM PROBATE CODELeonard Scott, Chair of the Probate Commjttee of theArkansas Bar from 1972-74, gives his readers a "BirdsEye View" of the Proposed Uniform Probate Code.

PRO/CON - A DEBATEGary Eubanks and Wendell Griffen present opposingviews on the risks and benefits of lawyer advertising.

LAWYER ADVERTISING AND FREEDOM OF THE FIRST

John Tull presents a first amendment perspective oncommercializing the profession.

12

24

32

In Every IssueLEITER FROM THE EDITOR, by Stacey DeWitt

PRESIDENT'S REPORT, by Carolyn Witherspoon

EXECUTIVE DIRECTOR'S REPORT, by William A. Martin

YOUNG LAWYERS SECTION REpORT, by Stuart Miller

LAW, LITERATURE AND LAUGHTER, by Vic Fleming

CLE DIRECTOR'S REpORT, by Charlotte Morrison

LAW OFFICE TECHNOLOGIES, by Maggie Newton

DISCIPLINARY ACTIONS/ADVISORY OPINIONS

IN MEMORIAM

1

4

6

11

19

20

2343

48

President's Report

Enhancing the Image ofLawyersby Carolyn Witherspoon

The law often permits what honor forbids.Bernard Joseph Saurill, French tragic write,;

SpartaclIs, 1760

ThiS issue of The Arkansas Lawyer isdevoted to the hotly debated topic oflawyer advenising. Atlverti~illg illld ourprofession's image are completely illlertwined now. Jumping into that arena

will require bold new ideas. I am immensely grateful to Henry Hodges, the Chair of the Bar's LawyerAdvertising Committee, and to his outstanding committee for all of the work that they are doing for theBar and for each of us on this controversial topic.Please be sure to thank each of them when you havethat opportunity.

It is difficult to balance the First Amendmentrights of the members of our honored professionwith the legitimate intercsts in upholding thc imageof our profession and thc interest of educating thepublic about the availability of legal services. Manylawyers, myself included. strongly believe thatextreme lawyer advertising has been the direct causeof the poor image in the eyes of the public, thai ithas reduced our profession 10 its lowest levcl, andthat it has caused the public to perceive the legalsystem as nothing more than a lottery with thelawyers as the only real money winners.

As. you know from the last edition of TheArkansas unvye,.. the Arkansas Bar had filed a petition with the Arkansas Supreme Court to amcnd certain of its Rules of Professional Conduct. In light ofthc U.S. Suprcme Court decision in Florida Bar v.Went For It, Inc.. (the case name alonc was bound toattract some attcntion) we must address the issuespresented in our petition somewhat differcntly.Thus, the House of Dclegates this month willaddress this issue and the steps necessary 10 balancethe interest in protecting the public and the profession. To properly study thc issue and then proposerules that will withstand any legal challenge willtake rime and money. To movc tOO swiftly is not inthe best interests of anyone.

"The law will never move as. mpidly as a bullet.nor will its dispositions ever be as demolishing as abomb. Justice should be reasoned, and reasoningtakcs a certain Icngth of time." Edward L. Wright.Arkansas Lawyer; presidcnt. American BarAssociation, Plainview (Texas) Daily Herald, July13,1971.

In the mcantime, there are a number of things Lhateach of us can do to enhance the image of our profession and ourselves. You have heard them all

before I am sure. First lreal your clients well.How many of yOll have your calls screened first?Try answering your own phone without the screening of all calls. All clients want a lawyer who iscompetent and thus busy, blll not too busy to gi vetheir mauer. and them, the attention it and theyu~~t:rv~. The next logical step is to return calls. Ifyou are tied up in a conference or in court. havesomeone else return the call in an expeditious manner.

Second. each of us can provide individualencouragement of lawyers who do advertise to doso within certain bounds. The more senior lawyerscan assist those new lawyers with some specificson propriety. Individual mentoring of new lawyersstarting out in practice is critical and can berewarding For each of you more than you realize.In that way. you can have a direct impact on Iheway that new lawyer is perceived by his or herclients in a positive way.

Third. gel involved! Involvement bylawyers in the community in nonlegalboards and commissions in a positiveway is critical. I strongly believe thatsince each of us has had the good for

tune 10 be able LO obtain an education to allow us toparticipate in the judicial process. we must understand that we have a moral obligation to give something of ourselves bnck fO 0111' community. What R.Sargent Shriver. Jr. said of our obligation to providefor legal services for the poor can be applied to ouroverall obligation to our community: ..... 1, as alawyer, believe that some significant part of mymoney, time. thought, and energy belongs - I don'tgive it, it belongs - to others, not just to me."Washington Post. June 6, 1982. The public and ourcommunities musl once again begin to perceive thatlawyers are important to the community for theleadership roles that they provide. Lawyers shouldbe encouraged by each of us to run for local andstale office and then. once they are there. supportedpositively and emotionally in those positions.

We all must accept the challenges before us inthe advertising area. Hopefully, in the l11onlh~

ahead we will find the answers to those challenges.

"Justice shouLd bereasoned, and

reasoning takes acertain length

of time."Edward L, Wright,Arkansas Lawyer;

president,American Bar

Association,Plainview (Texas)

Daily Herald,July 13, 1971.

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Executive Director's Report

"Cyberspace" and The Law

C' yberspace" seems to be the latest

"buzzword" being used to describeinformation technology. The August1995 American Bar Association meeting contained numerous programs on

the ways computers, animation and the informationsuperhighway are changing the ways law is practiced, courtrooms look and operate and the servicesbar associations need to provide.

"Speed" probably is the best single word todescribe what is occurring- speed of locatinginformation and speed of changing technology areincreasing at an accelerating rate.

One presenter commented that, "Vt:ry lillie of alawyer's time is spent applying legal judgment." Headded much of what we do involves the black holeof litigation expense-filing, retrieving, copying.refiling and related efforts. Computers are better atsOrling, filing and retrieving then humans andlawyers must make computers work for them sothey can spend more time applying legal judgment.Their opponents are going to use technology-theymust use it also.

Electronic legal research is becoming faster, easier and more affordable.. Expensive on line researchservices are being supplemented and to some extentsupplanted by fixed cost (and often lower cost) CDROM (Compact Disk-Read Only Memory) librariesof legal information. There is less need for shelvesof books. For example the whole Arkansas Code,the case reports and our Arkansas Bar Associationbooks fit on one disk which are available throughLOIS (Law Office Information Systems, Inc.).which has what I believe to be the fastest and easiest to use research engine in PITA. Our Associationhas rln agreement with LOIS to make our booksavailable electronically.

Vast amounts of information, including legalinformation, are available on the Internet. To get onit lawyers (and everyone else) need software. amodem, and an agreement with a company whichfor a fee provides Internet access. Our ElectronicData Network Committee is seeking an accessprovider who will provide a discount for our members. Law firms and bar associations are starting todevelop "Home Pages'> on the World Wide Web(which essentially is a collection of millions ofcomputers hooked together by the Internet.) HomePages can contain information an organization (oran individual) wants 1O make available to the publicand some firms lIo;;e them for marketing. A HomePage consists of an opening contents page with theability for a computer operator using a mouse to

LThe Arkansas Lawyer Fall t995

by William A. Martin

click on a variety of subjects and immediately see apage giving information on that particular subject.

Use of E Mail. by which documents canbe transmitted between law offices and betweenlawyers and clients much faster than by FAX, israpidly growing and is usually a feature providedby companies which provide Internet access. Theability to transmit documents electronically getsthem to a receiver's computer in a form in whichthey can be edited on the receiver's computer andprinted in what is often a clearer form than receivcdon a FAX machine. The day when business clientsexpect their lawyer to have EMail capability israpidly approaching if not already here.

Arkansas has lagged behind may states in makinggovernmcnt information (such as corporation data)available to the public electronically, but based onaClions of our last Legislature the day should becoming when a lawyer will be able to pull up Stichinformation on a computer screen without having tosend a letter or a person to the Secretary of State'soffice to get a document. Some state bar associations such as New Mexico, West Virginia, Ohio.and Kansas have set up services so lawyers. andothers, for a fee can gain computer access to theserecords when the state puts them on line.

Anyone who watches TV news hasseen the computer monitors used inthe Simpson trial in California. Althe 8th Circuit Judicial Conference.President Carolyn Witherspoon saw a

demonstralion of how computers were used in theExxon Valdeze litigation where both sides agreedon using computers and then spent vast amounts ofmoney on preparation. In complex litigation computers may be the only way to keep track oftremendous numbers of documents, e.g. depositionsthat can be instantly put on screen and witnessescross examined on previous testimony. Accidentreconstruction experts can use computer generatedanimation to explain their opinions and make themmore understandable to ajury.

All this technology is not without problems.While much of lh~ cumpulcr hardware and software are very expensive. competition and advancesin creating new ways of using technology graduallybrings prices down. Much can be done with existing software. I saw some impressive presentationsof words, numbers and charts done with PowerPoint which is a part of Microsoft Office--{)ff theshelf software. A lawyer using a computer in acourt room must have mastered the computer and

See Page 42

.1~rJ' ..".

"Speed" probably is thebest single word to

describe what isoccurring· speed oflocating illformation

alld speed ofchallgillgtechnology are

in.creasing at anaccelerating rate.

ou?":erLo

by Thomas M. Carpenter

:Advertising and Solicitation

"Have I Got A

It was 1978. The U.S. Supreme Court had

recently decided Bate . SWle Bar ofAri~olla I. The Ar n u~me Court hadamended its ban on I "yer advertising. 2Local telephone com anie \\ ere preparingcopy for the next phone book. 'During a loeabar association meeting in eastern Ark-ansas,the president rose to addtess the que<lionof yellow pages advertisement b cause atelephone company official had appr cbedhim about ideas to assure "dignifie ads.

The president expressed great interest inthe views of his colleagues and it appearedthat a meaningful debate was about to occur.One older lawyer joked that since the statesupreme court had recently rejected a prisoner's claim that he had been ineffective in acriminal case, and would say that he was theonly lawyer in town to have been declaredeffeclive by the Arkansas Supreme Court.Everyone laughed, but before other comments were permitted one lawyer said adver

tising was not an issue in that area since noworthwhile attorney would stoop so low.The meeting adjourned. However, shortlyafterwards one young attorney quickly cancelled his yellow pages advertisement for thenext year.

This meeting illUSlrates the broad range ofviews on lawyer advertising that continueseven after the absolute ban was lifted. Todaymany lawyers. and countless nonlawyers.believe that it is beneath the dignity of theprofession to engage in shameless commercialism. In Arkansas, just a few years ago

two former Association presidents convincedthe House of Delegates to adopt a resolutionto ban lawyer ad'vertising despite a clearawareness that such an act was unconstitu-

tlonal. Recently,' 1'10'da Bar v. Wen or

It. Inc.3, !be U. . u erne Coun, for thefir t tin mce Bales, held that some retei lion n commercial lawyer advertlj:'"'"g:.'ID'appropriate. 3

Arkansas lawyers "max. advertise servicesthrough public media, such as a telephonedirector}', legal directory, newspaper or otherperiodical, outdoor advertising. radio or television. or through written or recorded communications. ,4 However, there are limita

tions. Advertisements cannot bemisleading5, cannot create an unjustifiedexpectation about the results a lawyer canachieve6. and cannot compare one lawyer'sservices to those of another7, Further, in-person or live telephone solicitation with per

sons with whom the lawyer lacks a personalor prior professional relationship are forbidden8 Now in light of Well1 for It IIlC., it ispossible, if not likely. that some time limitations on wrinen solicitations will be added.9

Before rushing to judgment about the wisdom of any particular rule. it would be wiseto review some of the history of lawyeradvertising in America. Has it always beenbanned? When did it start? Why did it stan?Or, for that maneI'. why was it ever banned?

Lawyers, trained in the English couns.came to America long before it was a unitedcountry. An educated lot, lawyers were seenas men that should do great good and, menthat should shun mere riches. IO Opposed to

the wise and learned men, there were otherpractitioners known as knaves. spellbinders,or penifoggers who were known for stirringup litigation merely for the fees. tl Although25 of 56 of the men that signed theDeclaration of Independence were lawyers.

and 3 Lof 55 tb , ne the Constitution,after the R vol\Jlionary War, lawyers were

en blood suckers or smooth-tonguedrogues. 12

Lacking any formal disciplinary process,there were no rules to prohibit lawyer advertising and many good lawyers used newspapers to inform the public their offices wereopen. Even future President AbrahamLincoln took out such an ad in 1838. 13

The traditional American ban on lawyeradvertising evidently started in 1908 withthe adoption of the American BarAssociation's Canons of ProfessionalResponsibility. 14 From the early to latetwentieth century, the goal of various legalassociations has been to exalt the practice oflaw as a profession. Because the professionis dedicated to public service, commercialadvertisement is deemed to be totally incon

sistent with the goal of profe sionalism.Indeed, advertising was seen as the road ofgood intentions leading to the hell of fraudulent claims. 15 Yet, since all lawyers are aJso

regulated by the state. total bans on the commercial speech of advertising implicates theFirst Amendment 10 the U.S. Constitution. In1977, the U.S. Supreme Court said that thistotal ban violated the First Amendment.

John R. Bates and Van O'Steen wereadmitted to the Arizona Bar in 1972 andworked for the Maricopa County Legal AidSociety. 16 Two years later they opened theirown law office with the goal of providingquality legal services to persons with modestmeans who could not afford other lawyersbut, who did not qualify for legal aid. 17

When two years of effort failed to provideSee

7 The Arkansas Lawyer Fall 1995

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that a broad prohibition on solicitation violated First Amendment principles of association. 33 Two impollant aspecls of this rulingwere the COUll'S view that this type ofmailed solicitation "involved no appreciableinvasion of privacy: nor did it afford anysignificant opportunity for overreaching orcoercion."34 In addition. the written communication. because it could be reviewed.made it substantially easier for a state toreview and regulate Improper activities. 35

In two years the .S. Supreme COUllforced states to reconsider rules that prohibited advertising and solicitation which hadbeen in effect for three quaners of a century.States adopted new rules that allowed nonpecuniary solicitations and appropriate legaladvertising. But. as the COUll noted. theseamendments were not the equivalent of noregulation.

When two young Arkansas lawyersincluded a mail-out advertisement for theirlaw firm. the Committee on ProfessionalConduct took action. 36 Relying upon therequiremelll that legal advertising assist inthe informed selection of legal counsel. theCommittee felt this ad was misleading sinceit listed a $10 consultation fee. but then listed a wide variety of legal issues without anyadditional indication of charges. Both thecontenl of the ad. and the fact it was included with a packet of coupons for french fries,discount meals. automobile tune-ups and aone month membership at a health spa, wasmore than the COUll could accept. The U.S.Supreme COUll refused to consider theissue. 37

Mailed advertisements, even to unknownpersons. are not per se improper. FirstAmendment protections attend such actionunless the state can show the advertisementsare false or misleading. In re R.M.J.. 38 Thequestion in R.M.}. was whether an attorneywas properly disciplined when a mailedannouncement of his new office address wasinadvellently sent to people he did not know.The Coun refused to permit such sanctions.

By the time of the R.M.J. decision. thebasic framework used to analyze constitutional issues raised by lawyer advertising. orsolicitation, were well established. First,adverti ing was a question of commercialspeech. While commercial speech is entitledto protection, this protection is less extensivethan that afforded noncommercial speech.

See Page 10

community:' 26 But not all efforts were

appropriate. While the indirect solicitation oflegal business through advellisement mighthave some constitutional protection. directsolicitation still presented major problems.The U.S. Supreme COUll first addressedthese problems in 1978. Ohralik \'. OhioState Bar Ass'1J27; In re Primus. 28

In Ohralik the COUll determined if disciplinary action for a direct personal solicitation of traffic accident victims violated theconstitution or the decision in Bales.

The facts were fairly straightforward.Albell Ohralik. while at the post office.leamed of a traffic accident which involveda casual acquaintance. In response, he contacted one victim's parents, visited the vic-

I

r e'eeting th bel'•

that advertising was per seunprofe slOnal, t Court ~

indicated that the banmay be one reason for

the rofession's failure to"reaoh out and serve the

~

tim in the hospital. and then secretly recordcd conversations with the victim's parents.29

He also visited another minor involved inthe accident and obtained assent to representher against the first victim. When the secondvictim's parents objected. he stated that hehad a binding contract. 30 A complaint to theOhio State Bar resulted in an indefinite suspension31

The COUll concluded that states have astrong interest in regulating. or prohibiting,direct client solicitation or. the offer of legaladvice given with the hope of pecuniarygain. The conduct involved in solicitation isthe basis for greater state regulation sinceovertures under adverse conditions "maydistress the individual because of their obtrusiveness and the invasion of the individual'sprivacy 32

Yet, when the solicitation is not for apecuniary motive. a state's regulatoryauthority is diminished. Dealing with a mailsolicitation from the ACLU. the COUll found

Continued from Paee 7any financial security. they decided to takeout an ad in the Arizona Republic thatoffered "Iegal services at very reasonablefees. 18

The Arizona Bar. pUT\Uant to its version ofthe Code of Professional Responsibilit).brought a disciplinary action against Batesand O·Steen. Initially suspended from thepractice of law for ~ix months. after appealthe two lawyers were given a censure by theArizona Supreme COUll 19 But. the ArizonaSupreme COUll rejected both an antitrustclaim and the First Amendment claim. TheU.S. Supreme Court noted probable jurisdiction and agreed to hear the case.

The COUll rejected the argument thatantitrust law prohibited an advertising ban.20

But. the COUll agreed that a total advellisingban violated the First Amendment.

Cognizant of a state's strong interest inmaintaining professionalism among lawyers.the COUll also recognized that a total baninhibited "the free flow of commercial informmion and ...keplt] the public inignorance.'·21 In doing so. the COUllanswered several arguments offered againstadvertising. For example, to the claim thatthere would be an adverse effect on the professionalism of attorneys. the COUll said thatwas questionable since both bankers andengineers advertised "and yet these professions are not regarded as undignified:'22

A three-pan claim that lawyer advellisingwas misleading was also rejected. The Counconcluded that the individualized nature oflegal services was not a concern as long asthe attorney does the necessary work at theadvenised price. 23 Further. the Coun gavelittle shrift to the claim that all ads were misleading since the client did not know exactlywhat services were necessary. 24 Finally. the

COUll totally rejected the claim that advertising would highlight irrelevant factors so.even relevant information should be deniedthe public. 25

The ban was lifted. Legal advellising wasseen as a means to provide commercialinformation to the consumer. While therewas still room for lawyer regulation, thequestion was no longer whether an attorneycould advertise, but what kind of advertisement was permissible.

Rejecting the belief that advellising wasper se unprofessional, the COUll indicatedthat the ban may be one reason for the profession's failure to "reach out and serve the


nondeceptive information and advice regarding Ihe legal rights of potential clients45

While the Court upheld discipline for thecriminal contingent fee ad. and the failure tomention litigation cosls in the Dalkon Shieldad. it otherwise rejectcd Ohio's attempts tocurb written advcrtisements. ~6

The analytical framework was now set forShapero \'. Kefllllcky Bar Association, 47

This decision rejected a state's right to categorically prohibit lawyers from direct mail

solicitations, for pecuniary gain. if the leiter!)were truthful and nondcceptivc. Grounded inthe belief that commercial speech permitsthe free flow of information to consumers.

thc Court rejected an argument that directmail writtcn solicitation by a lawyer to apotentia] client was no differcnt that in-per

SOn solicitation rejected in Ohlarik.

Essentially, Ihe Court noted that two majorexceptions to written communications madethe Ohlarik ban inapplicable. First. the written communication avoided the potential

overreaching and invasion of privacy concerns raised by personal solicitation. Further,written communications were clearly sus

ccptible to a scrutiny lost with nonrecordedoral communications, 48 The rc!)ult of thecase is that l'Iwyt:r~ began sending letters to

all kinds of clienls. particularly, it seems,traffic accidcnt victims.

When Bllles first allowed advertising, thecourthouse gossip each year sccmed to focuson which law firm did what kind of ad in the

yellow pages. Then. the jingles of radio andtelcvision spots becamc the focus uf discussion. After Shopero, Ihough. the concernsexpressed were about lawyers buying acci

dent reports and sending letters to anyoneinvolved in a traffic accident to let themknow Ihey had legal rights. 49

Had the profession come full circle? Hadthe ban on advertising from a sensc of personal pride now become an acceptance ofadvcrtising as a commcrcial necessity?Would the U.S. Supreme Court ever sayenough was enough?

It appeared thaI calegorical bans could nOI

withstand constitutional scrutiny. While evcnBllles had reservations about ads touting thequalily of legal services, the .S. SupremeCourt issued two opinions that permittcdprofessionals to declare national certifications. Ibanez v. Florida Dept, of Business ;50

Peel v. Al10nley Registration & Discipliruu:vCamm 'n oj Illinois, 51 The Court permitted

See Page 39

ordered by the Ohio Supreme COLIrt. Indoing so. the Ohio court held there was noFirst Amendmcnt problem with slate disci

plinary rules on advertising or solicitation.The U.S. Supreme Court reversed in large

part. The Court held that stale rules thaI prohibiled self·recommendation of a lawyerwere too broad to withstand constitutional

.. .1awy:er egan sendingletters to all

kinds of clients,particularly,

it seems,traffic accident

victims.

scrutiny. 44 "An attorney may not be disciplined for soliciling legal bUSiness Ihroughprinted advertising containing truthful and

No\\ im.:tgineyour-

d rom Pa 9

I,nagLn.e

The governmcnt is frce to prevent the dissemination of commercial speech that isfalse. deceplive. misleading. or Ihal proposesan illegal transaction. 39 till. government

action must be "in service of a substantialgovernmental interest. and only throughmeans that directly advance that intt::rest:040

The Court used Zllllderer I'. Office oj

qsciplinary COLlnsel 41 to discuss the scopeof statc power in advancing these interests.In Zauderer, an anorney ran sevcral advertiscments in local newspapers. The initial ad

offered 10 defend persons arrested for driving while intoxicated with the additionalassurance that no fec was duc if the personswcre convicted. After a complaint from the

Ohio Disciplinary Counsel. this ad wasstopped. 42

A second ad publicized a willingness to

represent women that had suffered injuriesfrom use of the Dalkon Shield contraceptivedevice. It provided information aboul the

shield and ended with Ihe comment that anunsucccssful case meant no legal fee was

due. However, several disciplinary violationswere found including Ihe fact Ihere was nocomment about costs and expenscs. 43 Apublic reprimand, originally suggesled to bean indcfinite suspension. was eventually

Imagine a dealership Ihal

understands Ihal time is yOUI' most

valuable commodity, that service Isn I Just a word - II S a

commitment, and Ihal when you buy a car.

you expect all of your car problems to

disappcar. You'vc JUSI imag-ined SchillinK

Lincoln l\\el'cury.

self in the driver's seat of Ihis all

new 1996 Sable, You're JUSt a

short drive from reality, Schilling

Lincoln ,\\ercur.,', where l'tIIl'l't" Iht"

Co/lo' /1/ £I't"r.Vlhtll.l} 11"t" /)/1.

f>o'lool\O 11100 :'1>:./66110 Ir.HR"if\H JO \T SUI11I l'NI\I:.R"ill' Llrllt ROCK


Young Lawyers Section Report

Attorney for Hireby Swart Miller

hat do a billboard. a bumpersticker, a license plate. and a busSlOp bench have in common? Allare avenues used by Arkansaslawyers to advertise their avail

ability for hire. The debate over lawyer advertisinghas taken on a new fervor as the legal communitystruggles 10 rebuild its reputation from the ominousslide in its public image.

Earlier this year, The American Bar AssociationCommission on Advertising nOled in its executivesummary, "While opinions on the role of advertising in the public's image of the legal profession arenot unanimous, it is clear that advertising is a majorfactor in the delivery of legal services, especially tothe poor." The summary went on to state,

"Nationally, more than one in every five lowincome households who have used the services of alawyer found that lawyer through some form ofadvertising."

The legal profession's internal conflict overadvertising is renecled in lhe results of a GallupPoll conducted in late 1993. The random poll produced these somewhat conflicting findings:

-of the 400 ABA members responding to the random telephone poll. 61 percent said theirfinns engage in some form of advertising.

-Lawyers who advertise primarily employYellow Pages telephone directories andbrochures, while !.he two most notoriousforms of advertising-television and directmail-are used by only 2 percenl and 12percent. re,pectively of the respondents whoadveni\c.

-Of the respondent> whose firms advertise, 87percent said they expected to advertise asmuch or more in the fmure as they do now.

A whopping 87 percent of the respondents saidthey believe advertising has a negative effecton the image of the legal profession, compared to 3 percent who said it has a positiveeffect.

- A third of the respondents said advertising hasa positive effccl on efforts to inform thepublic aboullegal services (42 percent saidit has a negalive effecl), and 43 percent saidit has a positive effect on the public's abilityto hire lawyers (24 percent said the effectwas negative).

Advocates of lawyer advertising contend it hasgenerally been the case that complaints aboutlawyer advertising come nO( from consumers or the

general public bUI rather from other lawyers. Onthe nip side. proponents in favor of restrictinglawyer advertising argue that lawyer advertising isthe single worst thing thaI has happened to the legalprofession.

One need only look al the phone book to obtain asense of what lhe public's perception must be ofArkansas lawyers. Thirty-nine pages of the YellowPages in the Lillie Rock/North Lillie Rock phonebook are devoted to advertisements by members ofour time honored profession. Nine of the thirty-ninepages are full-page ads related to counsel for personal injury. Eleven finns or individuals have halfpage advertisements. Most interesting is the"Consumer Tips" offered by the Yellow Pages.Using a telephone, a consumer may access generalinformation on attorneys related to (I) areas ofspecialization; (2) selecting an auorney; (3) whendo you need an allorney?; and (4) understandingcontingency fees. All categories are sponsored by alaw firm with their stated expertise noted immediately following the free information.

It is evident that the legaJ profession mustaccept responsibility for protecting the publicfrom those lawyers that might not practicethe highest ethical standards. It has fallen onthe organized bar to identify the problems

related to lawyer advertising and to take correctiveaction to ensure that the public is protected.

As a practical matter, it must be conceded thatenforcement of advertising and mail solicitation isextremely difficult. If Arkansas lawyers hope toregulate those few lawyers who might use unethicalmeans to garner clients, a process must be implemented. It does not make sense to have everyphone book or periodical reviewed by a committeeor the bar staff to ensure compliance with rules.Likewise, it would be impossible 10 have thosesame people watch every television advertisementor listen to every radio spot to mandate compliancewith ethical standards.

What is the solution? Possibly, a system thatwould require the filing of certain advertisementsand written solicitation with the state bar for reviewand enforcement. Such a system would require thatcertain basic standards be followed. In my view,nothing short of mandatory standards will surtice.Advocates for education, self-policing, and minimalstandards are misguided. /l should be presumed thatthe lawyers who need to be reined in want no partof education, self-police, or standards of any kindrelated to their advertisements.

"Nationally, more thanone in every five

low income householdswho have used the services ofa

lawyer found thatlawyer through

someform ofadvertising,"


U IFORMPROBATECODE

..... _.~. .", ,.' ... '

'... ; .: ~_.

'.~>::::';......

.'

A Bird's Eye View of theProposed Uniform Probate Code

by Leonard 1. Scott

A special committee of the Arkansas BarAssociation, headed by Randall Ishmael ofJonesboro, is currently studying the adoptionof the Uniform Probate Code by Arkan as.

The bill that was proposed in 1995 to ourlegislature with reference to the nifonnProbate Code was 209 pages long. It wasdeferred for funher study and, as indicated. aspecial committee has been appointed forthat purpose. It is my understanding that atthe initial committee meeting the chair allocated cenain ponions of the U.P.c. to themembers who were to repon back andexchange the inforrn3tion with one another.Ultimately. their conclusions will be submitted to the Executive Council who will, nodoubt. in due course, make its own recommendations.

If the Uniform Probate Code is adopted inits entirety, or substantially so, it will affectthe entire bar, not just those practitionerswho deal primarily in {rusts and estates.

Nevenheless, most lawyers will simply


not have the lime, and possibly not the interest, to acquaint themselves in any greatdetail with this imponant proposal.

Hence, this panicular anicle. to give you abird's eye view of what is involved. Thepurpose of offering such a view is to helpyou determine if you are fundamentallyopposed or fundamentally in favor uf tht:panicular provision or the U.P.c. as a whole.Thus, if the discussion sets off a definitereaction, you need go no funher (thoughthere's no law against it).

This bird's eye view was primarilyobtained by a cursory, not a detailed, study.Because the investigation made was Lhussuperficial and cursory, you cannQl rely on itas containing a complete statement. You canrely on it as indicative of. generally. whatprovisions of the Arkansas Code or theU.P.c. are involved, and some of the generalsolutions made, and you can then decidewhether you want ro go funher. For example, currclHly. a spouse and/ur minor children are entitled to S2.000 (SI,OOO as against

credirors), 10 furniture and furnishings necessary to occupy the dwelling, and to anallowance of S500 per month for twomonths. A.C.A. §28-39101(a). (b) and (c).Funher. the spouse may "tarry in the mansion" for two monLhs without paying rent (oruntil dower is assigned). A.C.A. §28-39-702.The U.P.c. has an exemption of $10.000 forthe spouse or children (2-403); and a reasonable family allowance during administration.not ro exceed one year if the estate is insolvent (2-404). Let me ay. generally. that ifyou feel the existing provisions are too antiquated. whatever the .P.c. offers in itsplace has to be an improvement. (It is.) Ofcourse, some areas are more complex.

I. BACKGRO DThe author of this anicle was chair of the

Probate Committee of the Arkansas Bar forits years 1972-1973 and 1973-1974. one ofthe major purposes of which was to studythe U.P.C. Among its membership werefour Probate Judges, all of whom had served

with distinction in such capacity for years.

Those judges were: Judge WarrenKimbrough. Judge Alex Sanderson. JudgeThomas BUll. and Judge RoyceWeisenberger.I

The opinion was unanimous against anyadoption of the Uniform Probate Code in1010, or substantially in toto. To quote thereport. it was felt that by and large the existing Arkansas Probate Code provided "aquick and workable system of distributing adecedent's assets while balancing the needsof his distributees and those of his credilars:'

There were several rea~ons for this determination. First. OUf Code was rela-tively new. having been enacted in1949. Secondly. 14 different provi-sions of the niform Probate Codewere recommended for adoptionand were in fact actually enacted.Also. there were several provisionsof the Uniform Probate Codewhich were basically already inOUf law. although not necessarily inthai fann or wording. Incidentally,the Arkansas Probate Code of 1949embodied many of the provisionsof the Model Probate Code (theforerunner of the Uniform ProbateCode) approved by the AmericanBar Association.

One of the major concerns of thethen committee was that the U.P.e.consisted of eight separate articlescovering some 278 pages and thatits adoption would. in tum. repealor at least change an almost unbelievably large amount of existingstatutory law, most of it alreadyjudicially construed.

Ay, there's the rub2

However, the lastlinc of thereport was: ..... that Arkansas willnot forever tum her back on it (theU.P.e.) ... if further study orexperiences of other states demon-strates its desirability." And, in fact. it hasalready enacted several components of theU.P.e. ill\olving these niform Acts: theSimultaneous Death Act; the TeMamentaryAdditions to Trust Act: the Disclaimer ofProperty Interests Act; the Durable Power ofAttorney Act; and the TOO SecurityRegistration Act.

II. THE BIRD'S EYE VIEWI have previously intimated that the prima

ry purpose of this writing is to give you aresume of a resume, so to speak, to give you(barely) enough information to enable you tomake a quick but not completely unreasonable determination for yourself. Obviously,if time permits and/or your curio!'tity is

aroused. you can (and should) go further.(See the Uniform Probate Code. or the 800page official text with comments by WestPublishing Company, or the 48-page articleauthored by Prof. Lawrence H. Averill, Jr.and Ellen B. Brantley. Chancellor. 5thDivision, Pulaski County. Arkansas. or the95-page updated version of the earlier articleby those two authors, being published thisfall in the UALR Law Journal (which I havebeen privileged to see in advance), or finally,the excellent text by Prof. Averill. "TheUniform Probate Code in a Nutshell"(1993), consisting of 553 pages plus index

If the UniformProbate Code isadopted in its

entirety, orsubstantially so, it

will affect the entirebar, not just thosepractitioners whodeal primarily intrusts and estates.

(some nutshell!).Articles 1II and IV of the U.P.e. are basi

cally procedural. i.e. the administration ofestates. Article II of the .P.C] deals morewith substantive maHers.4 As Prof. AverillMated in a recent leHer to Steve Bauman,who is the current Chair of the ArkansasProbate and Trust Section, that, althoughthere are numerous issues in Article II, resolution of those issues really is a maHer ofopinion. As an example. should we inArkansas adhere to the old rules of dowerand curtesy or are spouses entitled to morethan dower and curtesy? You could argueforever on the minutiae of what "more"ought to consist of, but at this point in time I

think your response could be: "Yes, I thinkthey are entitled to more." or "No. they arenot." And if they are entitled to more, I amfor the .P.e. (on that issue). [If you wantmore enlightenment. read (a) the proposedlegislation. or (b) the articles referred to, or(c) all. There also is an 18-page article byProf. Averill (Administering Decedents'Estates Under the Uniform Probate Code,1993). (Call him for reprints.)]

What about family exemptionallowances previously referred to? Do youthink they are enough? If not, let's go for theU.P.e.

What about execution of wills?It is an area like that which tends

to make one desirous of "choppingup:' i.e. removing some of the sections, and leaving others in.

Frankly. I hate to change our wi IIrequirements because I am"scared." I think I know what thecorrect requirements are but I don '{know how the new requirementswill be construed, or whether theywill be construed like our existingdecisions.

Yet, because I am thus frightened, I will check into the matter alittle more. On page 19 of theAverill-Brantley article you will seethe excellent comparison of theArkansas law with the U.P.c.. Fromthis it appears that. although someinstruments possibly not valid underArkansas law would be valid underU.P.C.. making a quick judgment, itappears that there are no situationswhere a will which complies withArkansas law does not comply withU.P.C..The lapse or anti-lapse provisionsexemplify what the authors meantwhen Lhey said that some situationsrequire a complex solution, becausethese complex situations do exist. I

don't try to shorten your interest into thisexcept to say it is very worth while lookinginto. One of its outstanding provisions is thatthe anti-lapse provisions apply not only towills but also to non-will substitutes, i.e.insurance policies, POD accounts. profitsharing. retirement and other benefit plans.This seems a statutory provision well worthyof attention. It is proof of my theory thatonce you are satisfied we need to make achange, you will find the U.P.e. change iswell considered and reasoned. In this particular field, the question is, do you think ouranti-lapse provisions are broad enough? Ifyou do not, then go with the U.P.e. anddon't concern yourself with the actual provi-


them don't take. The U.P.c. never allows aperson of more remote degree to inheritmore than a person of close degree.Interested? Read the Averill-Brantleyremarks. (p. 5)

Arkansas and U.P.C. have the same lawwith reference to half-bloods and the provisions are similar on descendants of decedentconceived before decedenl'~ death but bornafterwards. But only decedent's posthumousdescendants are covered (28-9-210) whereasthe U.P.C. covers parents. their descendantsor grandparents' descendants. but the afterborn person must survive by 120 hours. InArkansas proof of survival. if there can besuch, by 10 minutes is enough. whereas.under the V.P.C. the survivorship must existby 120 hours. (2-108)

The .P.c. relating to adoption is particularly interesting and well conceived. InArkansas the adopted child does not inheritunder or through the non-custodial parent.but will under the .P.c.. a well-reasoneddi>tinction. (2-114)

Arkansas absolutely protects children orissue of deceased children who are pretermitted. Under the U.P.c. only children areprotected. It further limits its protection topretermitted children born or adopted afterthe execution of the will disinheriting thechild; the intent to disinherit must appear onthe face of the will and. finally, if the omitted child has been provided for by transfersoutside the will intended to be in lieu thereof. he is not pretermitted. (2-302)

The homestead rights in Arkansas arerather limited. e.g. in Arkansas, such rightsin city property are limited to 1/4 acre without regard to value. (The homestead in country property i 80 acres without regard tovalue.) (It's hardly worthwhile mentioningthat country homestead could be 160 acres ifnot exceeding in value 52.500.) The U.P.c.simply allows 515.000 (which probably willbe raised in due course). (2-402) But wemust not forget our homestead provisionsare contained in the Arkansas Constitution(Article 9. §4, 5. 6 and 10). The U.P.c. credits that to the allowance (2-402A).

I have already referred to the 5 I0.000exemption provided by the .P.c. in lieu ofthe smaller Arkansas figure. (2-403)

As noted. the family allowance inArkansas is limited to $500. payable for twomonths after death. The U.P.c. allows a"reasonable monetary allowance" for thebenefit of the surviving spouse and minordependents. which allowance cannot continue for more than one year from death if theestate is insolvent. but apparently can continue longer if the estate is solvent. (2-404)

The provisions for execution of a will

There are potentially moreescheats under the U.P.c. InArkansas there is an escheatonly if there is no spouse.descendants. grandparents. greatgrandparents nor their descendants. Under the U.P.c. there isan escheat simply if there is nospouse, no descendants, nograndparents nor their descendants. (2-103) Gre31-grandpareots and collateral relatives from

sions lhat (hey make. In thatvein. there is this telling comment by the author: "A properlydrafted instrument will never beinterpreted under Ihis provision'"

Following the above I have, attempted to make summaries

comparing most of the othermore signiticant provisions inArticle II of the Uniform ProbateCode with Arkansas' current law

, - again. merely to give you ashort-cut roUfe to a decision oftentative approval or disapproval, or a determination to gofurther.

I have indicated that theinquiry (on spousal rights) couldsimply be. do you think theshare of the surviving spouse istoo small and/or too antiquated?(If you are uncquivocally committed to dower and curtesy(they're abolished. 2-113). SlOpright now. But that's a little arbitrary ... ) Going - brieny - a little further, the U.P.c. has anaccrual type of benefit for theelective share of the survivingspouse. Such spouse has a risingpercentage scale based on years

of the marriage, from a low of3% of the "augmented estate"after the first year of marriage.to a high of 50% after 15 yearsof marriage - with a minimum of550.000. The augmented estateincludes some inter·vh'os transfers. There's more detail youmay desire to examine. (2-201.et seq.)

Procedurally, the U.P.c. ineffect gives the pretermittedspouse the share she would havereceived on intestacy withexceptions not here noted.Arkansas merely permits the sur·viving spouse to lake against the

..'•••• will.

"But one thing is certain.If you do any probate

work at all - and mostlawyers do some - if the

U.P.C. is passed, you(and all

probate judges) facehours and hours of study

before feelingcomfortable in dealing

with any substantialitem involving its

subjectmatter. Hopefully, in

time, such necessity willease, but it will not be

there initially - andinitially you cannot

afford to be onlypartially familiar. You

cannot afford to onlyhave a little knowledge

about it."

14 The Arkansas Lawyer Fall t995

The

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have been previously alluded to. They aredifferent and more liberal than the Arkansasprovisions. but the important thing, it seemsto me. as previously stated, is that any willexecuted under the Arkansas formalities willcomply with the U.P.c. (For specific comparisons, see p. 135 of the Nutshell.)

A holographic will is more easily sustained under the U.P.c., i.e. may be provenon the basis of a statement or affidavit ofone witness. or even a sworn petition if thereis no contest. The u.p.e. does nor requirethe holographic wi II be dated or that it mustbe signed at the end.

The U.P.c. also has a "dispensing power"provision that, for example, peffilits theestablishment of a will by clear and convincing evidence that the testator intended thedocument to constitute his will. It does notspecify which formalities may be dispensedwith. (!).

As to proof of will, the U.P.c. andArkansas law are similar except that theU.P.c. says a self-proved5 will may beadmitted even in a contest without testimonyof any witness, though still subject to contestfor incompetency, undue influence. revocation, etc. ll3-406(b)]

A will executed outside of Arkansas seemsto be valid under both the U.P.c. andArkansas law except possibly a will executed in Arkansas according to the law of thetestator's domkile but not valid in Arkansasmay not be valid.

As to the troublesome question of revocation by a subsequent instrument which doesnot expressly revoke a prior will but isinconsistent in whole or in part with it: doesa revocation of a later will revoke the earlierwill also, or only the laner? The U.P.c.addresses those questions. (2-507) TheU.P.e. provides that. if there is no evidence.the testator is presumed to have intendedrevocation rather than supplementation ofthe previous will, if the subsequent willmakes a complete disposition of testator'sestate, If it does not make such a completedisposition. the subsequent will would bedeemed merely supplemental. But either presumption may be rebutted.

In Arkansas a will, once revoked, cannotbe revived except by re-execution or by execution of another will incorporating it by reference. The U.P.C. appears to make itdepend on evidence. Does the subsequentwill wholly revoke the previous will, ormerely partially revoke it?

In Arkansas divorce revokes the provisionof the will in favor of the divorced spouseand the Arkansas law provides that thespouse shall not be "endowed" if convictedof ftrst or second degree murder of the

spouse. Under the .P.c.. on divorce. allprovisions for the ex-spouse and the exspouses family are revoked. All personsguilLy of felonies and homicide are precluded from benefitting from a victim's will orother interests (2-803, 804).

The rules of construction with reference toboth testamentary and donative transfersappear to be the same under Arkansas rulesand the U.P.c.. although the U.P.c. has aspecific provision so stating (see 2-60 I and2-70 I) and Arkansas apparently does not.

The Arkansas Anti-Lapse Statute is limited to (predeceased) children or descendants,and residuary bequests to two or more persons (A.C.A. §28-26-104). U.P.c. is muchbroader (2-203).

Ademption involves the question of whathappens to specifically devised property notin existence at the death of the lestator, e g.testator devises his home at Black Street, butsells same and has a home at White Street:or the home bums and there are insuranceproceeds available, etc. The Arkansas law isnot clear (A.c.A. 28-24-101 and 102). TheU.P.c. certainly has the benefit of clarity andeven provides thai if Ihe property is not inthe estare, Ihe devisee is presumptively entitled to a general pecuniary devise equal tothe value of the property (2-606). It alsocovers the situation where the change ismade by a conservator or agent under a

\.

durable power of attorney.Both Arkansas and the U.P.c. pennit

unexecuted documents or instruments to beincorporated in a valid executed will, andboth Arkansas and the U.P.c. have adoptedthe Uniform Testamentary Additions to TrustAct permitting a testator to add a "pourover" of assets in an existing trust to a revocable trust or a life insurance trust or a trustnot established when the will was executed.

Events of "independent significance" arenot touched on here, but both Arkansas andthe U.P.C. permil separate writings to dispose of certain tangible personal property.Both limit them to disposition of tangiblepersonal property and not money.

You should be aware that Article II alsoincludes the Uniform Statutory Rule AgainstPerpetuities. As I understand it, it does notchange the exisling rule bUI does not let atransfer be contested for 90 years, i.e. "waitand see" until then, and then permits reformation. but only after it proves invalid. Thisis technical and you should decide for yourself, but I doubt whether it would upset current titles, as I think some have claimed.

Article III is at the same time both easierand more difficult to explain. Its generalconcepts are reasonably easy to explain.Enumerating its specific requirements wouldmake this explanation too lengthy. at leastby my self-imposed parameters.

(501) 376-2843


I pretermit discussjulI~ for small estatesmerely in the interest of conserving space.and go straightway to the more importantprovisions of the Article III procedures.First, there is the concept of universal succession, whereby basically the applicantsaccept responsibility for the estate andassume persona/liability for the decedent(and the decedent's estate's). taxes, debts,claims and distributions. The registrar, hereafter referred to, has little discretion but togrant the application. The application is usually filed by all the heirs, or by all the residuary devisees under the will (or all heirs ifthere is no residue). If a will is involved,then "informal probate,'· hereafter n:.rerredto, must be complied with. Asnoted by Prof. Averill, universalsuccession should not be soughtby heirs or a devisee unless theyare positive that claims and debtsagainst the estate will not exceedthe value of the estate assets.

Informal probate is begunmerely by filing an application tothe "registrar" who basically ismerely required to see that theapplication satisfies statutoryrequirements, and is generally satisfactory (see 3-201, et seq.).Incidentally, there can be noappeal from a denial of informalprobate, but anyone disappointedor objecting can and must gothrough the more formal probateproceeding.

Ordinarily, on intestacy arequest for informal appointmentof a personal representative willbe made. When a person dies testate. informal appointment mayand ordinarily will be instituted incombination with informal probate proceedings. In either case,once approved, there would be nofurther proceedings unless a creditor or dissatisfied devisee or heirrequires it. (3-704) Notice toheirs and devisees and to creditorsis still required (3-708 and 3-801).An inventory must be prepared but needonly be furnished interested persons (3-706).A personal representative may. in duecourse, obtain complete discharge by eitherfiling a sworn statement that the estate hasbeen fully administered (3-1003) or obtaining a coun order (3-100 I and 1002).

The contents for application for an informal appointment are not here listed. Theyare very similar to the Arkansas requirements for appointment of an administrator orexecutor.


Actually. the registrar can deny informalappointment for almost any reason, whichpower is not subject to review. It is used as aprotection for unnotified interested partieswhen the registrar has knowledge or suspects that the application is inappropriate.Formal appointment, which is a step abovethe informal appointment, is necessary anytime there is a question of priority or qualification of an applicant for appointment, orwhen the registrar refuses to approve aninfonnal application, or formal testacy issought.

Formal testacy (3-401, et seq.) is really aprocedure involving litigation. It is initiatedonly with a petition filed by an interested

person, requiring pre-hearing notice and terminating final order by the court. Such proceeding can be used to obtain an order probating a will or to set aside an infonnal probate or prevent a pending application fromobtaining informal probate, or even an orderthat the decedent died intestate. What isrequired is an order of court, after notice andhearing. It can cover just about any aspectwith respect to intestacy, testacy administration or cJosing. The laner wuuld be ordinarily sought.

A formal testacy order is very hrnad nnd i~

final with respect to all issues that the counactually considered or might have considered. It is subject to appeal and vacation fora limited period of time.

Bond is not required of personal representatives unless a special administrator isappointed or the will requires it. or interested persons obtain an order for it on petition.This is true of informal proceedings or formal proceedings. (3-603)

Finally, there is supervised administration.which is a formal proceeding. (3-50 I)Although the power of the court ends basically with the entry of an order in formalproceedings, the power of the court to super-

vise extends from the granting ofa petition for supervised administration to the entry of a final distribution termination order. verymuch like the proceedings wenow have in Arkansas.6

At page 379, Prof. Averill 7

summarizes the differencebetween the personal represemative under the U.P.c. and nonU.P.c. states. Generally. he pointsout, in non-U.P.C. states, the personal representative requires anorder by the court in initiatingaction or obtaining approval.Second, the personal representative lacks a degree of broad powers in administering the estate~

and, finally, the law places a burden of severe potential liabilityon the personal representative ifone attempts to act on one's ownwithout court order. To quoteProf. Averill:

"The consequence of these characteristics is that the prudent. cautious personal representative isforced to obtain court approvalfor every action tuken. therebysubstantially increasing the timeand cost involved in administration of the estate. Significantly,the provisions limiting court

involvement. broadening the personal representative's powers and exculpating the personal representative from certain liabilitiestypically constitute a substantial and significant portion of a well-drafted will in thesestates...

However, the U.P.c. subjects a personalrepresentative to the same standard of careimposed on any trustee and makes him liablefor any damage or loss that results frombreach of fiduciary duty. The line drawndoes not seem to me to be far different from

that drawn for non-U.P.C. adminblraroTs orexecutors. Under the U.P.c.. if a persondeals with a person representing in goodfaith, that person is protected. This is probably not so in the non-U.P.C. states. or nOI tothat extenl.

One question that occurs to me with thevarious methods of administration, i.e. informalar formal. Sections 3-701. 3-711. 3-714and 3-910 permit a personal representative

to give marketable title on sales or distribution without a court order. The question is,what protection is afforded the representative who in good faith makes 5.uch a sale ordistribution? One answer is that a distributeeremains liable to relUrn improper distributions for the latcr of six months after distribution or three years from death. Arkansaslifted this thought from its study of theUniform Probate Code over 20 years ago(A.C.A. §28-53-11 0).

The standard of compensation of the personal representative is rather simple. Thepersonal represemative is entitled to reasonable compensation and is entitled to personally determine that amount. (3-719) He canalso set the compensation for all agents,including attorneys employed by the representati ve [3-715( 18)(21 )]. Interested personsmay bring special proceedings solely for thepurpose of reviewing the reasonableness ofthe fees. As Prof. Averill points out at p.392.the courts are beginning to develop defini-

tions for reasonable compensation. but theydo not really differ from definitions alreadyin existence with reference to broader areas.i.e. such factors as one's time and labor orthe likelihood that other employment may beprecluded: the fee customarily charged in thelocality; the amount involved and the resultsobtained; time limitations and the experience. reputation, and ability of the worker.

I would say this particular area is the oneof the IllOSt. if not the mosl. important areato be considered in a U.Pc. or non-U.P.Ccompari'on.

It is my speculation that, currently. 80%(or more) of all probate matters. whetherconcerning testacy or intestacy. are handledby waiver of notice. waiver of accounting,and consent to discharge of the personal representative. This may be the real crux of thefight between U.P.c. and non-U.P.c.. I callattention to A.C.A. §28-41-108(f). whichol'er 20 years ago was lifted from theUniform Probate Code. Il provides that anyfees orcompensation may be challenged by anyinterested person and that "any person whohas received excessive compensation may beordered to make appropriate refund,' whichspecifically adopts or incorporates theUniform Probate Code provision. (3-721) Itdoes not do away with the arbitrary schedulewhich is, of course, not legally binding anyway, but many attorneys and particularly

professional personal representatives havefollowed those ;chedules rather rigidly. Ifthe attorneys. fiduciaries and the courtswould cooperate in not following those hidebound schedules and merely going by thestandard of reasonableness. I think a majorconflict between U.P.C. and non-U.P.c. provisions would be solved.

I am not sure that the adoption of ArticleIII of the U.P.c. with reference to proceedings will lessen the time involved in theordinary non-contested proceeding. Perhapsthe courts may currently sign a few moreorders than they would under the U.P.c. provisions, but for the most pan. the judgesrely. as well they should. on the initialedapproval of the attorneys involved, and theirtrusted clerks. The fee provisions are morethe heart of the matter. I am not sure thatadherence to the fee schedules. even if deleted, would be substantially discontinued. butif we don't adopt Article III. at least weshould delete the fee schedules. and seewhat happens.

Special attention should be given to this:the proposed bill (and the U.P.c.) provides(or may provide) that jury trials may bedemanded in will contests (see 1-306)' This.of course, would be a decided departurefrom our current procedures. However. thewording of 1-306 is that aparty is entitled to

SEE UPC, PAGE 41

Professional MediationArbitration Service

• An Arkansas private dispute resolution company providing mediation and arbitration services throughout theState of Arkansas

• Serving the legal profession, business community and insurance industry• Mediations are scheduled to occur within 30-40 days• A referral to mediation or arbitration is at no cost to the parties if the session does not take place• Statewide Arbitration Panel of Retired Judges

For further information, a brochure or to refer a dispute to mediation contact:

Professional Mediation - Arbitration ServiceProspect Building. 1501 No. University Ave. • Suite 268 • Little Rock, Arkansas 72207

Telephone: (501) 666-2121 Fax: (501) 664-5532

Frank S. HamlinDirector, Attorney-Mediator

Oyer 20 Years Tort and Commercial Litigation ExperienceOyer 100 Mediation and Arbitration conducted

Graduate, The Attorney-Mediators Institute ..

~tanoaros for 1:1xamination of J1{£aI ~stah~

Wit1£s in J\rkansas":1FJublisll ...}\lIb [l1llrrlll 3\'ot;

:1FJlIblisll o-'\lIb J5'rt Jforll] _'\

~tl1l1bl1rb!"

Wllo wOllld ltave tllollght tllat tllere was atitlelawyer amollg tile Old Testamwt Proplrets! Bllt,tile effort to pllblisll stalldards for examiltatioll ofreal estate titles ill Arkallsas goes back almosttllat for, to 1962 alld earlier.

III 1993, tile Arkallsas Bar Associatioll'sNatllral Resollrces Law Sectioll decided to dosome/llillg abollt tile lack of stalldards, appoilltillg acommittee to start draftillg. Tiley were laterjoilled by members of tile Real Estate LawCommiltee. By Febrllary 1994 afirst draft, distillillg years of experiellce, was ill circlliatioll tolawyers, title professiollals alld milleral rightslalldmell.

Artic1£s were writ/en ooUmg atlentim to tile pro·ject, alld tile stalldards were disCllssed at meet·illgs, semillars alld fllrther draftillg sessiollsthrollgh 1994 alld 1995. Tiley were approved forpllblicatioll over tire Associatioll's Ilame by tileExeclltive COllllcil ill April 1995 alld tile

Arkallsas Bar FOlllldatioll awarded agrallt to fillldillitial expellses. Tile stalldards will be availableNovember 1st. TIley 0011 ocorden>f by selldillg !flllrclleek to TITLE STANDARDS, Arkallsas BarAssociatioll. 400 West Markllam. Little Rock. AR72201.

Members of either promiligatillg sectioll callobtaill tire p"blicatioll for $10; ABA members payollly $lS; alld Iloll-Arkallsas Bar Associatiollmembers am receive it for 525.

How do liD/I joil1 either Sectioll? Simple!Wlrell yOIl order tile Stalldards witll tire formbelow, yOIl call also serrd ill YOllr dlles alld joillaile or botll Sectiolls. Order YOllr copy 1l0W.

Enclosed please find my check for5 . for __copies of theStarrdards for Examillatioll of Real Estate Titlesill Arkansas.

lam:o a member of one of the Sections;o an Arkansas Bar member, but not a

Section member;o neither of the above.

Enroll me in 0 Natural Resources LawSection ($15 a year),o Real Estate Law Section ($15 a year).Dues are also included in my check.

NAME _

STREET _

CITY/STATE/ZIP: _

If yOIl IIave hm'e allY qllestiolls regardillg tireTitle Stalldards, please feel free to call tact tileRabert Avery, 501-265·3861, Presidellt of tile oftile Real Estate Title Stalldards Commiltee

NOMINATIONS FOR PRESIDENT-ELECT

Article III, OFFICERS of the Arkansas Bar Association's Constitutiun, provides in pertinent part that:"Section 2. ELECTION OF PRESIDENT-ELECT. The President-Elect shall be elected by a ballot of the entiremembership of the Association. Nominations shall be made by petition signed by at least twenty-fiveAssociation members residing in the nominee's State Bar District as hereinafter defined. ominating petition shall be filed with the Secretary-Treasurer at the Association office at least 60 days prior to the first dayof the Mid-Year Meeting."

The President-Elect for 1996-97 will be nominated from the Southern District comprising the counties of:Ashley, Bradley, Calhoun, Chicot, Clark, Cleveland, Columbia, Dallas, Desha, Drew, Grant, Hempstead, HotSpring, Howard, Jefferson, Lafayette, Lincoln, Little River, Miller, Montgomery, Nevada, Ouchita, Pike, Polk,Saline, Sevier and Union.

Petitions must be filed by Monday, November 27, 1995 with the Secretary-Treasurer at 400 West Markham,Little [{ock, Arkansas 72201

18 The Arkansas Lawyer Fall 1995 ______J

Law Laughter & Literature

In Wake of State v. 0.1.,Let Us Return to the High Road

CopyrighT /995 by Vic Fleming G

hatever we Ihink of Ihe lighlspeed verdicI in People ofCalifornia \'. Orell1hal JamesSimpson. a stigma has beenetched onto the image of a pro-

fession. And it may take decades to repair. Indeed.il may be irreparable.

With press conferences and public displays ofEgo. the Dream Team exuded an arrogance thatslicks like Velcro. Even 10 lawyers who don't holdpress conferences and publicly air their animosities.

The invidious. insidious (and somewhat hideous)Prosecution, with combative and high-minded selfrighteousness. added to the shell from which aver

age attorneys must emerge to talk with other elements of society. So jaded are so many against "A"word professionals. that even in ca~ual cOllversa·lion, attorneys often cannot escape chastisementand insult among non-legal friends.

A New York Times editorial called the verdict"understandable given the relentlessly exposedbungling of the Los Angeles Police Department[whose] investigators made so many errors that themountain of evidence against Mr. Simpson began10 look like an eroding sandpile." A back-handedrebuke of the prosecuting attorneys. who ultimatelysupervise (and woodshed) their key witnesses.pol ice officers.

In a Times op-ed piece lawyer SCOll Turow,author of Presumed Innocent. opined that the caseagainst Mr. Simpson was "3 low road enterprisethat began with the kind of ugly lactics Ihat havearoused suspicions about the criminal justice system among members of racial minorities in LosAngeles and elsewhere." He said blind acceplanceof "most unlikely slories from police officers" precluded the D.A."s recognizing in Detective MarkFuhrman a genuine evil.

Columnist Maureen Dowd wrote. "Any finaleexcept instanl acquinal capped by a clenched-fistsalute from a juror who was once a Black Panther.anything other than the white van going down thefreeway while motorists cheered and waved wouldnot have been artistically fining for Ihis Babylontragedy-turned-farce thaI crystallizes everylhingwarped about our society at century's end."

Columnist Thomas Sowell called for overhaulingthe criminal justice sy!\tem by creating ProfessionalJurors. trained in law. anonymous. and immunefrom "being taken in by lawyers' Iricks." TheSimpson case, he said, "was a painful demonstration of what is wrong with Ihe American legal system:'

Make no mistake about it. The pundils citedabove have reference to the legal profession. Tolawyers! Ironic, isn't ii, thatlhe media critics lakedown Ihe legal profession before, during, and anerthe nOlorious coverage. via TV. that they thel11-...elves demand! More ironic. really. thai somelawyers insist on playing to cameras as "analysts"and, thus. contribute to the diminished image.

In my opinion. even High Profile allorneys oughlnot sell their services as legal commentators. especially if the motivation is business development."Legal analysis' (by lawyers-via-the-media) ofevery gesture. comment. and grunt of the trial participants is not. in my opinion. on the High Road.LeI Ihe Law Professors do the analysis. Why?Because to the extelll thai it is appropriate, it is sofor teaching. not client development or extraincome!

Ihope lawyers will. with a renewed sense offocus. demonstrate that they are, first andforemost. problem solvers. connict resolutionists, dispute managers. and business advisors. In my opinion. the entire legal profes

sion is on Ihe brink of unprecedented revampingbecause of an image - foslered by Ihe OJ. Ifial andits legalistic commentators - that all lawsuitsinvolve trickery, deceit. and manipulation and that.therefore. ethics and lawyers don'l mix.

I predict that in the end, State \'. Simpson will beremembered as a trial in which the prosecution wa~

its own worst enemy_ And in which Ihe defensewas so highly-paid Ihal il had 10 deliver in courtwhere it counted. The Smarts of the defense casewas to let the prosecution slowly self-destruct incolleclive blindness. Would that the stralegy couldhave played itself out wilhout off-court coverage ofpersonalities!

I hope Mr. Simpson did not commit the crime~ ofwhich he's been found not guiliy. Would Ihat somany were not so convinced (from media coveragethat the jury did nOI receive) of his guilt.

Moreover, I hope he does not return to acting. getmillions for after-the-faCl unsworn testimony, or gethis own talk show. Let him go inro seclusion forawhile <as did the Irue heroes of myth) and. if freeof guill, make good on the promise to search for themurderers.

If he commined the crimes, I hope he pays everyday for the rest of his life. And I strongly suspectthaI he will.

I hope lawyers will, witha renewed sense of

focus, demonstrate thatthey are, first and

foremost, problemsolvers, conflict resolu

tionists, disputemanagers, and

business advisors.


CLE Director's Report

,

It is time we lawyersstop apologizing for

being members ofour profession, which

just happens to beone of the oldest,

most honorableprofessions the

world hasknown.

by Char/oTle Morrison

Legal Services agencies provide representation forthe indigent who might otherwise go unrepresented.These agencies cover every county in Arkansas.Central Arkansas attorneys alone provided 5,552hours in 1994 for VOCALS (VoluntcerOrganization for Cenlfal Arkansas Legal Services) .Lawyers also do pro bono work for the elderly. In1994. Arkansas lawyers provided 4,077 hours toAVLE (Arkansas Volunteer Lawyers for theElderly).

Both law schools devote thousands ofhours to community service. Forexample, UALR School of Law has apartnership in education withRockefeller Elementary School in

Little Rock. Law students devote their time week.lyto help elementary students with their school workso they will not fall behind their classmates.Fayetteville Law School has a law related education program where law students talk 10 elementary,junior high, and high school students about the Billof Rights. the legal system. and the problems of atrisk youth. Both schools have been involved inHabitat for Humanity. food drives that benefit theirlocal areas. and projects to help their local batteredwomen's shelters.

This year the Arkansas Bar Foundation hasgiven the Arkansas Bm' Association an endowmentto subsidize the registration fee of newly licensedlawyers who are atLending the "Bridging the Gap·'seminar. More experienced lawyers give back toour profession by teaching at this seminar. Not onlydo they cover substantive areas of law, but theyalso lake the time to teach the younger lawyers theimportance of being professional and ethical intheir practice. This is not the only seminar in whichlawyers give generously of their time and talents. Ithappens all year long at CLE seminars; lawyersacross the state volunteer their time to teach boththe new and the experienced attorneys.

e agonize over the public's perceptions of us, and we havegood reason to do so.Perceptions tell us some members of the public think we are

dishonest. difficult to deal with. drag out casesincrease fees, represent bad people, and thai . ..THERE ARE TOO MANY OF US. In light ofthese perceptions. we have established our own disCiplinary rules and havc made our disciplinary system more understandable and accessible to the pub-

Evidence ofa Few Bad ApplesDoesn't Mean We're all Rotten

On our first day of law school, professor after professor told us that ourminds were mush and thm after diligent study we would be able to thinklike lawyers. Implied in this stale·

ment, we thought, was a guarantee that if we spentmuch lime and money to earn our degree and passthe bar, people would now into our office pleadingand paying us to do their work.

Once in practice. it didn't take long to realizethat things don't quite work that way. It's verycompetitive, and it is imperative to market your talents - either overtly or covertly. But this can creale

major inconsistency. Not only did our law schoolsnot offer marketing courses: they instilled thestrong attitude that soliciting business or advertising was offensive at best. Unfortunately, a lot of theadvertising is insulting - not only to the public. butto the entire profession.

But before the whole barrel is thrown away, weneed to remind the public that evidence of a fewbad apples does not mean we're all rotten. It is timewe lawyers stop apologizing for being members ofour profession, which just happens to be one of theoldest, most honorable professions the world hasknown. The reasons why the public views lawyersin less than a positive light is no mystery. (Justwatch some of the commercials lawyers run ontelevision, or read the mail one receives after having a car wreck.) Instead, let's focus on some of themore positive aspects of being a member of thelegal profession.

Historically, lawyers have made imponant contributions to our country's developmenl. ThomasJefferson is largely credited with drafting theDeclaration of Independence, and 25 of the 52 signers were lawyers. Two lawyers, AlexanderHamilLol1 and John Jay. worked with JamesMadison on the drafting and ratifying of the U.S.Constitution. Lawyers have helped in the development and protection of the basic freedoms guaranteed to all citizens by the Bill of Rights. Efforts todilute the power of the U.S. Constitution often havebeen defeated because of lawyers who stood finn inits defense.

Lawyers provide much of the leadership in ourcommunities as well. We are called "ambulancechasers" and "crooks:' but the problem is that mostpeople do not know the good things we do.Lawyers devote thousands of hours each year totheir community and their profession. Various


and

Goodwin, Moore, Colbert & BroadawayAttorneys at Law

are proud to announce

Retired from EEOC with20 years experience

EEOCDiscrimination

ConsultantCharles Bucher(501) 224-0877

the association ofAngela Bowden Gray

andMichael Scott Phillips

(September 1, 1995),

the relocation of our offices to1201 West Court StreetParagould, Arkansas,

the election ofHarry Truman Moore

asPresident Elect of the

Arkansas Bar Associationfor a term as President

to begin June, 1996.

lic. We have also established the ClientSecurity Fund to compensate clients who aredefrauded by their attorneys.

What else can we do? Place betterclient-lawyer relationships at the top of yourlist. You mu~t do your part. Your client see,you as our profession. When your client issilting across from you in your office,remember you represent all of us. You willeither be what is right or what i51 wrongabout our profession. The key to improvingthe public's perception of us mu't begin onelawyer and one client at a time.

\Ve can all,o support stronger regulationof anomey advertising and tougher griC\ance penalties. You and I must be enforcersof our rules. We must pursue those attorney,who deliberately disregard our rules andthose who are repeat offenders. In the past 3years, there have been 188 disciplinaryactions. Last year alone. there were 77 disciplinary actions. including 5 disbarments/surrenders. At the present rate. it appears wewill match or exceed those numbers in 1995,but we don't have to. Take the time to getinvolved by offering your input to the chairsof the Lawyer Advertising Committee. theProfessional Ethics & GrievancesCommittee, or one of the other committeesthat work to improve our community andour profession.

Above all, be an advocate for the goodthings that lawyers and the legal 'ystemsiand for in our society. We have taken steps(0 improve in (he areas in which we havebeen criticiled. and we need (0 continue inthe future. These are excellent Meps towardan improved public image. but more is needed. We are each responsible for making it

happen. We need not apologize for beinglawyers. Instead. we should strive to be better at what we do.

MARK YOUR CALE DAR

forJune 12 -15, 1996

Plan to attend the

Arkansas Bar AssociationArkansas Judicial Council

Joint Annual MeetingArlington HotelHot Springs, AR

Career Opportunity

DuTY STATION: United States District Court, Western District of TennesseePOSITION OVERVIEW: The incumbent provides legal advice and assistance to thecourt in connection with pro se litigation, and prisoner petitions and complaints.Pursuant to action of the United States Judicial Conference at its September 1994meeting, pro se law clerks are appointed and supervised by the chief districtjudge, under the authority of 28 U.s.c. § 752. The chief district judge may delegate this authority to another judicial officer or the clerk, as deemed appropriate.CLOSING DATE FOR ApPLICATIONS: October 31, 1995SUBMIT ApPLICATIONS To: Clerk's Office, U.s, District Court, 242 FederalBuilding, Memphis, TN 38108JOB LINE #: (901) 544-4537


Law Office Technology

Random Notes on the Passing Cyber Scene(In Ascending COlllfilexitr.frolll Ne\l'bie TO Geek)

b,' Maggie Nell'lOn

hat are they saying? Here is ahandy fold-up dictionary 10

keep in your pocketbook. untilyou become a certified geckowhereupon. you may keep it in

your pocket protector.-BAUD\ unit of mea\ure which signific51 hO\\fast data tfaycls to and from your computer: thehigher the baud nne. the faster you can send andreceive infooBBS Bulletin Board Syslem. \\ hich iswhere one can post a message for others to readand. hopefully. respond-BRO\\SER soflwan: which aHo\\ '" you to "SurfIhe Nel" (see Internet. below): Mosaic andNClscape are two popular browser~-E-;\IAIL electronic mail (see e-mail tips.below): opposile of snail mailoFAQ Frequently Asked Questions·FLi\~lING a Netiquettc no-no. i.e.. sending reallymean messages to ignorant or irritating peopleoFTI' File Transfer Protocol. which allowsyou to send documents and program~

-GOI)IIER method by which one tunneb fromone part of Ihe Net to anotheroHTML Hypertexl Markup Language. whichallows a suffer to click on high-lighted term to aconnected Net ..,ite-iNTERNET 3 network of nt:twulk..,. on an international scale. alkla the el: de\eloped originally asARPA ET (Ad\anced Research Projects Agenc}network)olRC Internet Relay Chat. a Iype of real-time e-mail-USTSER\ electronic mailing list (see list of list-"erv". below)-SSAIL MAIL mail sent via the .S. Postal Service:opposite of e-mail-SPA~I~IISG another Netiquette no-no. i.e.. mass emailings. usually advenising. to unrelated places-SYSOI) system operator who administer.., anetwork. BBS or forum: you complain to themaboutspammingoTCPflC Transmission ControlProtocolllntcrnet PrOlocol. which allows access toIhe Web if youdon't use an on-line service. such as a BBS. or oneof many commercial services: to implementTCP/IC. your Internet provider will use either theSUP (Serial Link InternelProlocol) or PPP (Poinl-IO-Point Protocol) method-URL Universal Rc..,ource Locator, the stan-

22 The Arbn'\311 Lawyer Fall 1995

dard system of \\fiting an Internet documentaddress..,0 that} our browser can locate ito SENET analogous 10 a colleclion of BBS,divided into topics, called newsgroups or forums.whichare then ..,ub-dh ided into hit:rarchies (i.e..

group.lopic.,ubtopie)oWAIS Wide Area Information Servef'. adatabase manager. used to allow searches of vastinfo Iibrarie\ stored on the et: other se;trch toolsinclude Archie. Veronica and JugheadoWWW World Wide Web. or the Web. i, a\uhcalegory of the ct consisting of multi-mediasites. arranged by topics. which contain dO\vn-loadable text. images nnd sounds.

Location, Location, LocationConfu'ed by Ihe jumble of leiters u,ed for e-mail

uddresse'\ and Web sites? Think back to your firstyear of law ..,chao!. Did you understand citationsright away? Of course not. But now yuu know thata cite tells you where to find a case. just like e-mailaddresse' and Imernet URLs lell your computer 10

find those places. The Lrick is knowing the key.E-mail follows Ihi' formal: someone(@<ome

place.domain (said ....,omeone al someplace dOldomain"). Generally. info aboul Ihe person isbefore the "(-" :md where they are located is afterthe ..(- ". For example. my e-mail addres< ismmne\\ ton(@cei.net.. My 10 is ··mmne"'ton"which dhtinguishes me from other people using 111}

network. "Someplace" is CEI. which is my Internetprovider. and "net" indicates that CEI i, a majorsuppon center of networks. Other domain suffixesinclude .com (commercial organizations)..edu(educational Institutions)..gov (governmcl1tal ill'aitutions). .int (international organizations)..mil (military groups) and .org (miscellaneous orgnnizations).

Here are a couple of e-mail addressc..,.one from the len and one from Iheright: U.S. Vice Presidenl AI Gore(\'lcepresldent(@whltehOlI\c.gov)and Rush Limbaugh (70277.2502

@compuo;,crve.com).URL< follow this format: hltp://address.documenl

name. URL locations commonly follow the emailformat foraddresses. Web addresses usually have "www'" as aprefix. Generally, Ihis address will take yOll to a"homc page" which i'\ analogous to the lobby of abuilding. From thal lobby. you can acces.., all Ihc

Here in ollr homeState, people are

gettillg wired all overthe place! The

Workers' CompensatiollCommission

has christened theirEDl program,

and carriers arelinillg lip to

send their infoelectronically.

BTW - by the way :-) smile

BL- bottom line :-( frown

TTYL- talk Lo you later :-D laugh

LOL- laugh out loud ;-) wink

ROFL- rolling on floor laughing :-0 surprise

<g> - gnn :-\ frustrated or puzzled

YMHO - in my humble opinion :-# exasperated

offices in that building, or jump to otherbuildings. If you don't know the URL of acompany or organization's Web page, youcan often guess the URL of their "frontdoor" by trying ··htrp://www.companyname.com (or other domain suffixes)".

Time is mone)'Especially when you arc paying by the

minute. As a result. regular e-mail users useu!)ual and unusual methods to get across apoint - abbreviations and smileys. whichconvey nonverbal cues. such as voice loneand inflection and facial expressions.Smileys are especially helpful when you areattempting to convey irony.

ABBREVIATIONS

Research Rules the DayA brief is due tomorrow. so you '1\ be up

all night working on it. But by the time youget to the law library, it will be closed. Areyou SOL (and we don't mean stalUte of limitations)? Nope! Just logon to the Internet.and, oh, the places you'll go!

Be sure to visit the following sites:Library of Congress (http://Icweb.loc.gov);Federal agencies (http://www.fedworld.gov);U.S. Congress (http://thomas.loc.gov); U.S.Supreme Court (hllp://www.law.comell.edu/supct!supct. table.html):cases from the Third(http://www.law.vill.edulFed-Ct!ca03.ht 011).Fourth, Sixth and Eleventh Circuit(http://www.law.emory.edu) Courts ofAppeal: SEC EDGAR filings(http://www.town.hall.org); U.S.c. text(http://www.pls.com: 8001Ihis/usc.htm); andC.ER. text(hllp://www.pls.com:800llhis/cfrexpl.htm).Several law schools and organizations

around the country have created vast repositories of legal info. or at least point you inthe right direction. Check out: Guide toLegal Resources. Chicago-Kent College ofLaw(hllp://www.kentlaw.edu/lawnetAawlinks.htrnl); Legal Information InstilUte. CornellUniversity Law School (http://www.law.cornell.edu/): Villanova Center for InformationLaw and Policy. Villanova University Schoolof Law (http://www.law.vill.edu); VillanovaFederal Web Locator (http://www.law.vill.edu/ FedAgency/fedwebloc.html); Virtual LawLibrary, Indiana University School of Law(hllp://www.law.indiana.eduAawAawindex.htOll); ARIA WEB. The American Risk &

SMILEYS

Insurance Association (ARIA) Web Server(http://13 I .-6.-4.5/ARIA.HI'M); LawLinks by Lexis Counsel Connect. law materials by topical index(http://www.counsei.com/topical.htm); TheLegal List (http:// www.lcp con-IThe-LegalListlTLL-chapter4.2.html); and P-LAWLegal Resource Locator(http/www.dorsai.org/p-Iaw).

What a Wicked Web We WeaveNavigating the Web and Internet are easy

with search engines like the Webcrawler(http://webcrawler.com) or lists, lists andmore lists. like Yahoo(http://www.yahoo.com). or handy-dandyhome pages. like The Universal Home Page(http://iglou.com/infobroker/tonys.html#Netsurfing, The Info Highway) or The InternetGuide(http://www.rpi.edu/lnternet!Guides/decemj/text.html). If you have a hankering to paysomeone to find your info. try InfoSeek(http://www.infoseek.com).

All Work and No Play ...For a little diversion. while you're ~urfing

the ·Net. check out these fun places. or discover your own. Try Cool Site of the Day(and Year) - a perennially cool and groovyplace (http://www.infi.net! cool.htrnl),Calvin and Hobbes Jumpstation - if the dailycomics are not enough of a fix for you(hllp://www.csd.uu.se/-d94her/calvinljumpstation.hlml). Kingswood Kranium HomePage - the weird and wild on the Web(http://www.kingswood.com) and Ari'sToday-Page - someone in Finland has alot oftime on their hands (http://www.uta.filbl arku/today.ht ml).

Gelling WiredHere in our home State. people are getting

wired all over the place! The Workers'Compensation Commission has christenedtheir EDI (Electronic I:)ata Interchange) program, and carriers are lining up to send theirinfo electronically. Meanwhile. up in theN. W. corner. the Washington County Courtsystem is getting networked. courtesy of theArkansas Supreme Court Committee onAutomation and the National Center of StateCourts.

News Junkies Unite!Newsgroups and listservs are two fav waysto go for an extra shot of news in the cyberworld. Check out USENET FAQs(http://www.cis.ohio-state.edu/hypertextlfaq/usenet IFAQ- Li st.html) before you jump into InlernetNewsgroups (http://www.w3.orglhyptertextlDataSourcesINews/Groups/Overview.html). If you love lists, legal andotherwise, take a look athttp://scww-.v,usc.indiana.eduJ mlarchiveand http ;lIwww. kentlaw. eduAawlists/listservs. htm!.

If that's not enough for you, you canalways subscribe to some on-line mini-Il"lags,like the Pathfinder Compass, by TimeWarner (subscribe to compassrequest(@pathfinder.com), the clnet DigitalDispatch (subscribe at their home page:http://www.cnet.com). the Dell ComputerCorp. NetGuide Now' (subscribe to netguidenow(@cmp.com), or The ComputerLaw Report, by attorney William S. Galkin(subscribe to [email protected]}.Fini,

The sites listed above are not meant to bedefinitive. If you know of some places I didn'( mention, or have thoughts or comments.let me know bye-mail ([email protected])or snail mail, Matthews, Sanders & Sayes,325 W. Third, Little Rock, 7220 I. I'd beglad to share any additional info withArkansawyer lawyers on the ArkansasLawyers Listserv. Happy surfi ng'

23 The Arkansas Lawyer Fall t995

" A good name is rather

to be chosen than great riches. ~ ~

- the Bible•

•

I _~_The Arkansas Lawyer FaJl) 995 _

"Whether you are a lawyer or not, if you have been

injured in an accident recently, you probably received

anywhere from two to fifteen solicitation letters."

Gary Eubanks

Last June. proponents of restrictions on lawyer advertising won

a narrow VICtory at the United

States Supreme Court. InFlorida Bar \". \\elll For Ir.

II/c. t• The Court allowed Rorida 10 place a

limited time restriction on targeted directmail solicitations to pep,ons injured in acci

denls. Now Florida attorneys must wait until

thirty days after the accident to send direct

mail solicitations.The victory was-indeed-narrow for Lhe

regulators. Florida met Its burden of proof

by supporting its ban with evidence. TheFlorida State Bar had to show a substantial

state interest. The court recognized prOlcction of potential clients' privacy as a sub

~lantial state interest. The Florida Bar reliedon stati~tical and anecdotal evidence that

Floridian, overwhelmingl) found direct mail

advertising to accident victims an invasion

of privacy. The Supreme Court found that

ev idence sufficient. The Supreme Court further noted that Lhe restriction wa~ narrowlytailored to its stated objectives. The Court

diqinguished Shapero \'. Kemllcky Bar

Auodlllion2 b) noting that in Shapero the\late did not use privacy a.\ a basis for its

regulation. The ban in Shapero was also too

broad. dealing with all direct mail solicitations "whatever the lime frame and whoeverthe recipient.·· The State in Shapero did not

have an} evidence to bad. up its assertion of

harm caused by direct mail.

Some Bar Associallons have apparentl)seen Went For It as a green light for other

restrictions on advertising. I think a carefulreading of the ca'e doc, not justify that con

clu:-.ion. It is true that the Supreme Courl

con"lidered harm to the profession a~ one ofthe faclors that ju~tified the regulation. But

throughout the decision" the Court makes it

clear that it was the element of invasion ofprivacy that justified the regulation.

One of Weill For lI's arguments wa~ that

the Florida Rule may prevent injured per

son, from learning about their legal rights at

a time that insurance compan} adjustor" andattorneys are pennitted to contact them. The

Supreme Court relied on the many otherways for injured people 10 find out about the

a\-ailability of legal sen ices in rejecting thatargument. 3

Because the Supreme Court is requiring atleast some kind of empirical evidence to jm,

tify restrictions such as (he one in Weill ForIt, it is not at all clear that another state-say

Arkansas- could enactthe same ban without at

leasl some type ofexpensive empirical

study.

Those ofyou who

have ~e~n

my"mall

order

lawyer" advertisement know that I am not

using the direct mail method of soliciting

business. What you may nOl know is that the"mail order lawyer" phenomenon only

scratches the surface of a much more serious

problem. I have come across cases in which

lawyers. or their "runners:" \kip advertisingentirely and show up at Injured peoples'

doorsteps shortly after accidents. A number

of my clients have called me because some

one showed up. unmvited. at their doors.Although this activity i, highly unethical

and is grounds for disbarment. nothing is

effectively being done to stop it. This i, in,pite of the faci that my firm. and other

firms that spend money 011 advertising. have

reported the instances that we have beenable to document. I know of no competent


Lawyer PRO Advertising

lawyer who engages in direct in-person,olicitation. I hu\"e run an advertisementabout this misconduct. My ad was lilliemore than a public service announcement.do not believe it got me much business. Iwas getting as many or more calls from outraged victims of door knockers before I everran the ad.

Whether you are a lawyer or not. if youhave been injured in an accident recently.you probably received anywhere from two tofifteen solicitation letters. One localAdministrative Law Judge's wife got six\\-hen ~he had an accident a few months ago.One of the lawyers in my finn got a coupleof letters after his car was hit. But unlessyou are a lawyer. there's no way to tellwhich-if any- of these lawyers is reallyprepared to handle your case competently. Afew of the mail order lawyers I "-no\\ ofyou know who you are---<:an at leas,t per·form in the courtroom. Others are simply notreally Iitigators. Many of them offer "cutrates." You get what you pay for. The best Ican say about some of these lawyers is thatthey know how to find their way to thepolice station to request an accident report.The Yellow Page, are a little better. but thereis still no way to determine whether thelawyers listed are really prepared to carryyour case through to trial.

Attorney certification has beenunder consideration inArkansas for more than 25year,. So far. we have boardcertification in a few fields.

but not in the field ofcivil trialadvocacy,

where it is moM needed. Arkansans with taxproblems can consult a Board RecognizedSpeciali't in Tax Law. but people with taxproblems usually have money. Money usually means connections with people who knowlawyers and law firms to recommend.People do not choose their tax lawyers fromadyertisements. They get their lax lawyers at

the country club. Many of the people whoneed civil trial lawyers most. on the otherhand. have little or no connection with Ihelegal community.

Arkansans desperatel) need some wa) toknow whether the lawyer they are thinkingof hiring has the necessary experience and!>kill to handle their case to a successful conclusion. I wrote an article in August of 1988for Arkansas Business in which I said thatcertification is imperative to protect the public and that the public could not afford anyunnecessary delay. We have had unnecessarydelay. Unnecessary delay has resulted inmail-order lawyers. door-knockers. andlawyers wjlh more dollars than sense holding themselves out as trial lawyers whenthey are not.

Because of the vacuum created by the failure of bar associations to recognize certification. groups such as the National Board ofTrial Advocacy have formed. The NationalBoard of Trial Advocacy is a voluntary association open to qualified trial lawyers. TheUnited States Supreme Court has recognizedthat the standards of NBTA are "objectiveand demanding."4 The Task Force onLawyer Competence described NBTA certification as a "highly-structured" and arduousprocess that employs a wide range of assess

ment methods"·S.-----~_ ..~~..........,...,~., ~

I was the second lawyer in Arkansas to be

certified by the NBTA. It was my intentionat that time to advertise my NBTA certification. The NBTA asked me not to adverti,emy certification at Ihat time. I was willingbut not happy-to comply.

An IIlinoi, attorney included his BTAcertification on his letterhead. The IIlinoi~

disciplinary commission charged the attorney with an ethical violation. The UnitedStales Supreme Court decided that "thequelitioll to be decided is whether a lawyerhas a constitutional right. under the standard, applicable 10 commercial ,peech. toadvertise his or her certification as a trialspecialist by NBTA ..·6 The Court answeredthat question in the affirmative. The NBTAnow permits all certified attorneys to advertise their certification. It it., my intent to doso.

But I do nOI believe Ihat certification byNBTA is enough. We need state certificationas well for the benefit of the public. It willnot be enough for trial lawyers to call forcertification. If the public does not help us inour efforts. specialty certification inArkansas will remain on (he drawing board.and the consumer will have no way ofknowing whether the lawyer who sent theletter, appeared on the billboard, and showedup in the Yellow Pages. radio and tele\'isionhas the skill necessary to provide adequaterepresentation.

Before Bares v. State Bar ofA ri:,olla. 7. noadvertising was permitted and lawyers wereprotected at the expense of the public. ow,with ad\'ertising without state cenification.nobody is protected. Although we can market our services just as used car salesmendo, the publi has no lemon law for lawyers.

Lawyer PRO Advertising

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

Wendell Griffen

The Supreme Court ofthe United Slates has

upheld the right of

attorneys 10 advertise.

finding that legal

advertising comes within the mean

ing of "commercial speech" forFir~t Amendment analysis. BaTes \~

Ari~olla Slale Bar, 433 U.S. 350.

97 S.C!. 2691 (1977). Since that

decision. the Supreme Court has

struck down a state bar rule which

prohibited direct mail solicitation

by lawyers. Shapero \'. KetlIlIckyBar Associatioll. 486 U.S. 466. 108

S.C!. 1916 (1988). However. the

Court has only in its most recent

term upheld a state imposed 30-day

waiting period for lawyers who

solicit accident victims by direct

mail. Florida Bar v. WellT For IT,Illc.. U.S., 115 S.C!. 2371 (1995).

Throughout these decisions. one

can detect what might be termed

the discomfort of ti,e legal profes

sion with advertising by lawyers

and its relationship to professional

ism. To put it succinctly. advertising by lawyers is constitutional. but

there is widespread concern that it

is also damaging to the professional

reputation of lawyers as a whole and to the

public's regard for law as something more

than a trade that one pursues with personal

gain as a primary objective.Thus. the true question is not whether it is

legal for lawyers to advertise; rather weshould ponder whether lawyers have a dutyto something beyond personal libel1y insofaras advertising is concerned. This is a question of professional ethics. of morality. andmay very well approach the spiritual dimension of law. lawyers. and the public that lawprotects and whom lawyers are sworn toserve.

THE NEED FOR PRUDENCE CONCERNING THE LAWYER'S RIGHT TO ADVER

TISE

7. 433 U.S. 3508. The term "Blue Book" refers to a refercnce book giving the fair market value ofused cars. The book is not blue.

suggesting that Floridians have little difriculty finding lawyers when they need one. See.e. g., Summary of Record, App. C(4), p. 7:id .. App. C(5). p. 8. Finding no basis to

que~tiull the common sense conclusion thatthe many alternative channels for communicating necessary information about attorneysare sufficient. we see no defect in Florida'sregulation.4. Peel". Attorney RegisTrtuio" andDisciplinw)' COII/llliuiofl oj IIlillois, 496U.S. 91. 95 (1990).5.ld.6. Id.. at 99- f00.

the ample evidence. testimony. and commentary submitted by those favoring (as well asopposing) lInre~lricted direct-mail solicitation. respondents have not pointed to--andwe have not independently found--a singleexample of an individual case in whichimmediate solicitation helped to avoid, orfailure to solicit within 30 days broughtabOlIl, the harms that concern the dissent,scc post. at 9. In fact. the record containsconsiderable empirical survey information

JI •••the Jlmail order lawyer"

phenomenon only

scratches the surface of a

much more serious

problem"

There is no '"Bluc Book"8 for comparingprices of lawyers. I repeal what I said in1988 and before. We need certificationguidelines. The public cannot afford anyunnecessary delay.

END NOTES

I. 63 U.S.L.w. 46442.486 U.S. 466 (I Y88). This is the case inwhich the United States Supreme Court heldthat the State could not categoricallyprohibit lawyers from soliciting legalbusiness by sending truthful letters to

potential clients. This case authorizeddirect mail solicitation.3. Respondents' ~ecumJ point wouldhave force if the Bar's rule were nol

limited to a brief period and if therewere not many other ways for injuredFloridians to learn about the availability of legal representation duringthat time. OUf lawyer advertisingcases have afforded lawyers a great

deal of leeway to devise innovativeways to attract new business. Floridapermits lawyers to advertise onprime-time television and radio aswell as in newspapers and othermedia. They may rent space on billboard~. They lTI:ly "end untargctcd(cuefs to the general population. or todiscrete segments thereof. There arc.of course, pages upon pages devotedto lawyers in the Yellow Pages ofFlorida telephone directories. Theselistings are organized alphabeticallyand by area of specialty. See general-ly Rule 4-7.2(a), Rules RegulalingThe Florida Bar (-[A] lawyer mayadvertise services through publicmedia. such as a telephone directory. legaldirectory. newspaper or other periodical,billboards and other signs. radio. television,and recorded messages the pllblic mayaccess by dialing a telephone number. orthrough written communication not involving solicitation as defined in rule 4-7.4-);The Florida Bar: Petition to Amend theRules Regulating The Florida BarAdvcrtising Issues. 571 So. 2d. at461.These ample alternative channels for receiptof information about the availability of legalrepresentation during the 30-day period following accidents may explain why, despite

28 The Arkansa~ Lawyer Fall 1995

Lawyer CON Advertising

"It is true that it is permissible to advertise, but does

that mean that the public is well-served by the exercise

of that freedom as we have observed it?"

My response to the assignment given me

in this article. therefore. does not oppose

advertising by lawyers on legal grounds. The

question is whether there is a higher good

beyond legality which should be considered.

It is true that it is permissible (0 advertise.

but does that mean that the public is well

served by the exercise of thaL freedom as we

have observed it'? Is the trust lhat society

needs to have in the legal profession as a

calling of people dedicated to truth and jus

tice likely to be damaged or advanced by the

speckle of 13\\ yers writing solicitation letters

to grief-stricken family members. or hawk-

ing our services

through the use of

overly-dramatic televi

sion re-enactments?

Can we truly ignore

this dimension to our

profession in our dis

cussion of advertising

by attorneys, particular-

ly in the face of public

opinion polling which shows us that the

public perception of lawyers is falling, cou

pled with survey data from a poll of lawyers

which indicates that advertising has a nega

tive effect on the image of the profession? Is

this merely a private issue to be confronted

by each lawyer individually, or does the

legal profession owe itself, the public it

serves. and the institution of justice to which

it is called. some obligation beyond the

quest for personal enrichment?

I do not pretend to have the answers to

these questions. and yet I raise them from

the conviction that the legal profession will

not answer them unless the) are confronted.

Personal freedom to ad'"ertise notwithstand

ing. it is time that we consider what it means

to be a profession. Unless we are to adoptthe idea that consumerism is to define the

ethical parameters of permissible conduct by

lawyers. there must be some sense within

our profession and each lawyer that we owe

the public something more than the right to

know that we are lawyers and where we can

be found. We owe a duty 10 uphold thePubUc confidence and trust ill the imegrityofour legal system. If that sense of confi

dence and trust is lacking, the public will

come to view law as a system by which peo-

pie and property are manipulated for gain,and not an effort, albeit imperfect, by which

humans seek to justly resolve their differ

ences and conduct their Lransactions.

So rather than argue that lawyers should

not advertise. or denounce the court deci

sions on lawyer advertising, we should be

talking with one another about what it means

to be a profession. If being a professional

means being a person of trust concerning a

discrete subject maner on which the general

public lacks knowledge and is dependent.

then we should be a~king ourselves whether

the public is likely to trust a "profession"

whose members resort to commercial

manipulation in order to foster demand for

our services. Lf we are free to advertise. we

are free to temper the way thm we advertise

so that the confidence and trust that the pub

lic needs and upon which our justice system

depends will not be undermined.

Those who support the de-regulation of lawyer advertising

assert that the public needs to

know its right to legal services.

and where to find the people


Labor/M;::magement arbitration, Employee benefits, EEOC/discrimination, Sales commission disputes,Broker-dealer-manufacturer-representative disputes. Architect-engineer-contractor-deve!oper dis

putes,Trustee liability, Contract interpretation, Seniority, Employee pension and disability entitlements.Overtime, Working hours, Testing procedures, Discipline and diSCipline procedures. Suspension.

Workplace conditions, Lay-offs, Reduction in force, Call-back, Assignment of work, Contract and warranty disputes, Malpractice of accountants, attorneys, physicians, hospitals and nursing homes

Private arbitrator and mediator appointments acceptedAll proceedings held in strict confidence

RONALD E. BUMPASS, J.D.ARBITRATION

we advertise) in ways that inspire

trust rather than cynicism. Onewould hope that our efforts to

inform the public about the availability of our services would be

consistent with the nobility of theprofession that we have been

blessed to enter. One would hopc.in shon. that we would raise our

standards above what b minimally

acceptable in the marketplacebecause we are a profession. not a

market. or bazaar. or shopping mall.

The freedom to advertise carries with it the

freedom not to adver

tise or to use one's

best and highest effortsto advertise in ways that promote

public confidence and trust in the

system of justice that allows LIS tobe lawyer; in the first place. Weshould stop arguing about whether

. "servIces...

"Those who support the

de-regulation of lawyer

advertising assert that the

public needs to know its

right to legal

who have been trained to assertlhose

rights. This is true, and is one of the

reasons that the Supreme Court has

invalidared efforts to suppress entire

areas of lawyer advertising. But sure

Iy there must be a beller way ofinforming the public than some of

{he devices that have appeared on

television screens and through direct

mailings around the country. One

would hope that the quality of thelawyering offered by those ads andappeals is higher than the tastefulnessof the messages that are communicat

ed. But this is more than a discussion

of etiquette, more than a debate about

manners and social prou)Col. This is

a discussion about professionalism.

There are certain behaviors that,

while cenainly legal. are beneath thedignity of our profession. One wouldhope that the strenuous academic

preparation and discipline demandedof us to become lawyers would

inspire us to advertise our services (if

PROFESSIO AL ASSOCIATIO 5

Arbitration Panel of the U.S. Department of Labor's Federal Mediation and Conciliation ServiceLabor Panel and Commercial Panel of the American Arbitration Association

National Health Lawyers Association's Alternative Dispute Resolution Service PanelUnited States Postal Service/American Postal Workers Union, AFL-CIO,

Panel for the Southern and Southeastern RegionsCPR Institute for Dispute Resolution, .Y., N.Y.

LAW OFFICES OF RONALD E. BUMPASS

2241 North Green Acres Road, Fayetteville, AR 72703(SOl) 521-3172 or 1-800-400-3172 • FAX (501) 521-5928

For Information Only - Not A Solicitation



we have the right 10 advertise. or evenwhether we ought (0 advenise. The SupremeCOUft has answered (he first question, and

each lawyer must answer the second one all

a personal basis. Since we have the freedom

to advertise. we should focus our attentionon doing so in ways that enhance andslrengLhen the public trust in the rule of 13\'v.

the integrity of Lhose who have been blessedto become lawyers. and sense of well-beingthai is so vital if our legal system is to survive. For if Shakespeare was correct whenhe stated through one of his characters that

in order for tyranny to prevail. one must firstkill the lawyers. then there is something elseto be considered. Before one can kill thesystem of law which lawyers are sworn lO

serve. one must kill the confidence and trustthat Lhe public has in lawyers and the legalsystem. h is one Lhing for a despot or tyrantto try to do this. It is something altogetherdifferent, and more troubling, when lawyersdo this LO ourselves in the name of personalliberty.

Arkansas Bar FoundationSpecial Projects Grants

Arkansas Bar Foundation Special Projects Committee Chair Richard A. Williamsinvites the submission of grant applications for legally related special projects.

DEADLINE FOR SUBMISSION: 4:00 P.M., Tuesday, November 28, 1995.

The applications will be circulated to the Special Projects Committee immediately and the committee will meet for its first review in December.

Arkansas Bar Association and Foundation committees and sections and otherentities and individuals having worthy, legally related projects may submitgrant applications.

No grant money will be approved finally or be available until after the TrustCommittee meets in January, 1996 before the winter Foundation dinner.

To request an application, or to ask questions, write the Arkansas BarFoundation, 400 West Markham, Little Rock, AR 72201 or call Ann Dixon Pyleat the Arkansas Bar Foundation by dialing 3754606 or 800-609-5668.

Arkansas Bar Association • Calendar of Events

HOUSE OF DELEGATES MEETINGDale: October 21,1995Location: Inn of the Ozarks, Eureka Springs

PUBLIC SECTOR LAWDate: October 27, 1995Location: UALR Law School, Little Rock

BRIDGI G·THE·GAP SEMINARDate: November 2-4, 1995Location: UALR Law School, Little Rock& Ark. Law Center

CLE CRUISEDate: O\'ember 4-11, 1995Location: Caribbean

ENVIRO MENTAL LAWDate: ovember 17, 1995Location: U of A Law School, Fayetteville

EXECUTIVE COUNCILDate: December 2, 1995Location: Arkansas Law Center, Little Rock

FEDERAL TAX INSTITUTEDate: December 7-8, 1995Location: Excelsior Hotel, Little Rock

MID-YEAR MEETI GDate: January 25-26,1996Location: Peabody Hotel, MemphisHouse of Delegates Meeting, January 27,1996

5TH DISTRICT TRIAL PRACTICE

Date: February 2, 1996

Location: SAU, Magnolia

FAMILY LAWDate: February 9, 1996Location: TBA, Little Rock

ATURAL RESOURCES LAW INSTITUTEDate: February 20-24, 1996Location: Arlington Hotel, Hot Springs

To get more illformatioll 011 these or otller eLf semi/lars, COIl tact tileeLf office of Ihe Arkallsas Bar Associalioll 01 501 -375-3957.

31 The Arkan,as Lawyer Fall t995

andby

Freedoitbe

HistiIIW

tr ofcommercialspeech.

Until recently, the United States Supreme Court took

the position that the First Amendment does not protect

commercial speech. See, Valentin.e v. Chresten.sen, 316

U.S. 52, 62 S. Ct. 920, 86 L.Ed.2d 1262 (1942). That

position was repudiated in Virginia Board of Pharmacy

v. Virginia Citizens Consumer Council, Inc., 425 U.S.

748,96 S. Ct. 1817,48 L.Ed.2d 346 (1976). In striking down a ban on price

advertising of prescription drugs, the Court stated:

It is precisely this kind of choice, between the dangers of suppressing

information, and the dangers of its misuse if it is freely available, that the


First Amendment makes for us.

In Central Hudson Gas & Electric CO/Po v. Public Sen,ice Commission

of New York, 447 U.S. 557 (1980), the court set forth the four-part test that

governs commercial speech:

In commercial speech cases, then, a four-part analysis has developed. At

the outset, we must determine whether the expression is protected by the

First Amendment. For commercial free speech to come within that provi-

sion, it at least must concern lawful activity and not be misleading. Next we

ask whether the asserted government interest is substantial.

If both inquiries yield positive answers, we must determine whether the

regulation directly advances the government interest asserted, and whether

it is more extensive than necessary to serve that interest. 447 U.S. 557 at

556. The last prong of the Central Hudson test was modified in Board of

Trustees of State Univ. ofNell' York v. Fox, 492 U.S. 469 (1989). The court

indicated that the "least restrictive means" test was itself too restrictive, and

the test has become one of a "rea onable fit." The modified Central Hudson

test was applied recently in City of Cincinnati v. Discovery Network, Inc.,

113 S. Ct. 1505, 123 L.Ed.2d 99 (1993). In striking down the City of

Cincinnati's categorical ban on the distribution of commercial handbills

through the use of freestanding news racks located on public property, the

Court determined that the City did not establish a "reasonable fit" between

the government regulation and the government's professed goal in public

safety and esthetics. Important to the Court's decision was that other forms

of speech such as newspapers were not subject to the ban. Justice Stevens,

writing for the majority in Discovery Network, noted that:

In later opinions we have stated that speech proposing a commercial transaction isentitled to lesser protection than other constitutionally guaranteed expression. We havealso suggested that such lesser protection was appropriate for a somewhat larger cate-


303 Guaranty Building. 120 South Olive Avenue. West Palm Beach, FL 33401

il." Konigsberg v. State Bar oj Califomia. 366 U.S.(1961) (dissenting).

First Amendment protection of truthful andnondeceptive commercial speech was extended to

lawyers in Bates v. State Bar ojAri~ona. 433 U.S. 350(1977) where the court held that it was unconstitution

al for states to prophylaclically ban truthful and nondeceptive communications. There, the court rebuttedthe sixpoinL analysis presented by the stale bar to justify limited rights of its lawyers and focused on thepublic's need for information, concluding that advertising was not inherently misleading and could play animportant role in the determination of whether an indi

vidual had a need for legal services and. if so. themethod of finding a lawyer to help meet that problem.

The constitutionality of in-person solicitalion was

unclear after Bates, but that issue was decided thenext year by the companion cases of In re Prill/liS, -136

.S. 412 (1978) and Ohrulik Ie Ohio S,a,e Bar Assn.,

436 .S. 447 (1978). In upholding the state's ban onin-person lawyer solicitalion. the Supreme Court concluded that in-person solicitation for pecuniary gainwas subject to regulation as an important stale interestand that the potential for overreaching was significantly greater when a lawyer. profes ionally trained in theart of persuasion, personally solicits an unsophisticated. injured or distressed person." 436 U.S. 447 al 465.

Since Bares, the U.S. Supreme Courthas supported limitalion on the communication of legal services only fourtimes. As noted. in Ohralik. supra, thecourt upheld the state's ban on inper on

solicitalion

and inlaudereI' v.Office ojDisciplin((lyCOl/nsel. 471U.S. 426

ited (1985).although the

p as court found

erc·al that the pub-comm I I" f(cation 0 an

speech. ad with anillustration ofa Dalcon

Shield IUD was constitutionally permissible, the court upheld the state's right torequire a disclosure informing con-sumers thal they may bc rcsponsible for

costs in comingency fee ease where ads

• '-4iiI=

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gory of commercial speech thaL is, expressionrelated solely to the economic interests of thespeaker and its audience. We did not. however, use that definition in either Bolger I'.

Youngs Dfllg Prodllcts. 463 U.S. 60. 103 S.Cl. 2875, 77 L.Ed.2d 469 (1983) or in BoardoJTfllstees ojState University ojNell' York I'.

Fox,492 .S.469, 109 S. Cl. 3028,106L.Ed.2d 388 (1989).

Discol'e,y Network, 113 S. Cl. 1505 at 1513 (citationsomitted). In olher words, commercial speech receives

less protection from the First Amendment because ofits economic nature: however, the Court, by its own

admission, has been inconsistent in its application ofthat protection. The commercial free speech test in its

current form allows commercial speech to be regulated. even if thal speech is truthful and nondeceptive,but the state substantiates a significant interest whenthe proposed regulations directly advance that statedinterest and those regulations are a reasonable fit thalarc narrowly tailored to achieve the de ired objective.The Cell/ral Hlldsan leSI is inexact at best and, at itsworst, may leave commercial speech struggling to

predict its future course before the Supreme Court.Justice Hugo L. Black warned "Ihal the creations of'tests' by which speech is left unprotected under certain circumstances is a standing invitation to abridge

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mail. the court stated that the First Amendment "doesnot permit a ban on certain speech merely because itis more efficient; the state may not constitutionallyban a particular letter on the theory that to mail it only10 those whom it would most interest is somehowinherently objectionable." Id. In Shapero, the Courtcontrasted targeted mail 10 in-person solicitation andindicated that face-to-face solicitation was rife with

possibilities for overreaching, invasion of privacy,

the exercise of undue influ-ence, and outright fraud."Id. at 472. The Court foundthe direct mail to havemuch less risk of overreaching or undue influence than in-person solicitation and more like printadvertising where thepotential client may disregard the information bymerely averting his or hereyes. The Court found that

targeted letters do not invade a person's privacy anymore than general letters, and to the extent there is aninvasion, it is the lawyer's discovery of the recipient'slegal need, not the lawyer's confrontation of the recip-

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indicate there is no fee unless there is a recovery. Thethird limit on communication of legal services was thecourt's refusal in 1985 to grant certiorari to the second appeal of Commiltee 011 Professiollal Ethics alld

COlldllCt of the 10IVa State Bar Association v.

Humphrey, where the Iowa Supreme Court had uphelda reprimand of a lawyer whose television advertisements violated the state's restrictions. Iowa ethicalrules provided "the same information in words andnumbers only articulated by a single, nondramaticvoice. not that of the lawyer, with no other background sound maybe communicated on television. Inthe case of television, no visual display shall beallowed except that allowed in print as articulated bythe announcer ...." 355 N.W.2d 565 at 569. TheCourt vacated the Iowa Supreme Court's opinionupholding the regulations and remanded the case toreconsider in light of the Zauderer decision. However.the Iowa Supreme Court distinguished Zalldererbecause it involved print ads and not television commercials. Humphrey again appealed the decision tothe United States Supreme Court which then refusedto grant certiorari, citing the lack of federal question.The fourth limit by the court was in Florida Bar v.

Weill for It, IIIC., sllpra.

[n Florida Bar v. Weill For It, the SupremeCourt voted 5-4 to uphold a rule adopt-ed by the Florida Bar that prohibitslawyers from using direct mail to solicitpersonal injury or wrongful death clientswithin 30 days of an accident.Prior to the Wellt For It decision, theU.S. Supreme Court rejected attempts tolimit lawyer advertising and marketingthrough the application of the commercial free speech doctrine. For instance,in Shapero v. Kelllllcky Bar AsslI.. 486

U.S. 466 (1988). the Court upheld theright of a lawyer to send direct mail thatwas truthfully nondeceptive to thoseknown to be in need of legal services,overturning regulations forbidding directtargeted mail. The Court ruled on aKentucky ethical provision prohibiting

the "mailing or delivery of writtenadvertisements precipitated by a specificevent or occurrence involving or relat

ing to the addressee and or addresseesas distinct from the general public." 486U.S. 466 at 467. Speaking to the differ-ence between the permissible generalmail and the impermissible targeted

35 The Arkaasas Law er Fall 1995

ient, by mail, with that discovery. Id. at 473. See also,Peel v. At/orney Registratioll Disciplinary Commission

0/lllinois,496 .S. 91 (1990).In Weill For II, fllc.. Florida Bar rules prohibited

personal injury lawyers from sending targeted directmail solicitations to victims and their relatives for 30days following an accident or disaster. JusticeO'Conner. writing for the majority. noted that lawyeradvertising is well established as commercial speech,

and "as such, is accorded a measure of FirstAmendment protection. Such First Amendment protection of course, is not absolute." 115 S. Ct. 2371 at2374. After reaffirming the Cenlral Hudsoll test. theCoun had little trouble crediting the bar's interest to

be a "substantial state interest". so as to meet the firstprong of the Hudsoll test in "protecting the naggingreputations of Florida lawyers by preventing themfrom engaging in conduct that .. is universally regarded as deplorable and beneath common decency." Id. at2375. This finding is a substantial depanure fromprecedent. To so find. the Court had to distinguishEdenfield v. Fana, 113 S. Ct. 1792 (1993) by notingthat the record in that case failed to provide any stud

ies in suppon of the proposition that personal solicitation of prospective business clients by CPA's creates adanger of fraud. The Court noted that the Florida Barhad submitted a 106-page summary of its two-yearstudy of lawyer advenising and solicitation. and thatthe "antidotal record mustered by the bar is notewor-

thy for its breadth and detaiL" 115 S. Ct. 2371 at2376. The Coun struggled even more to distinguishShapero v. Kelllucky Bar ASSII., 486 U.S. 466 (1988).which the Coun of Appeals had held was controllingprecedent.

Justice O'Conner, writing for the majority, determined that targeted solicitation within days of accidents will have a much greater impact on recipientsthan would the more generalized solicitation at issuein Shapero. That distinction is questionable since theKentucky lawyer in Shapero proposed to send solicitation letters specifically to parties who had foreclosure suits filed against them.

In dissent. Justice Anthony M. Kennedy. joined byJustices Stevens. Souter and Ginsburg warned againstdepriving accident victims of immediate. and necessary. representation:

... when an accident results in death or injury,

it is often urgent at once to investigate theoccurrence, identify witnesses and preserve evidence .... Meanwhile, represented and better

informed panies. or panies who have beensolicited in ways more sophisticated and indirect, may be at work. Indeed, these parties,either themselves or by their attorneys. investigators, and adjustors, are free to cnntact theunrepresented persons to gather evidence oroffer settlement.

115 S. Ct. 2371 at 2381. Noting that lawyer solicita-

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lion is "an essential pan of the publicdisclosure that the First Amendmelllsecures," Justice Kennedy concludesthat the Florida Bar rule that suppressedspeech that informs the public how thelegal system works is "censorship, pureand simple". Id. at 2383.

Interestingly, in Rubin v. CoorsBrewing Co., 115 S. Ct 1585, 131 L.Ed2d 532 (1995), a unanimous coun invalidated a federal statute that barred brewers from displaying alcohol contents oftheir beers on beer labels. In a footnotein his opinion, Justice Thomas rejectedthe government's contention "that legislatures have broader latitude to regulatespeech that promotes socially harmfulactivities such as alcohol consumption,than they have to regulate other types ofspeech." 115 S. Ct. 1585 at 1589-1590.

However, perhaps the clearest statement of the current state of the commercial free speech doctrine was set forthby Justice Steven in his concurringopinion in Rubin. Arguing that thestatute in question had little to do withcommercial speech, Justice Stevenswrote a separate concurrence stating that

the reason broader regulation of commercial speech is tolerable is because ofcommercial speech's potential to mislead.ld. at 1595.

[T]he consequences of false com-mercial speech can be particularlysevere: investors may lose their sav-ings, consumers may purchase prod-ucts that are more dangerous thanthey believe or that do not work asadvertised. Finally, because commercialspeech often occurs in the place of sale, consumers may respond LO the falsehood beforethere is lime for more speech and consideredreflection to minimize the risks of being misled.

Id. at 1596.Thus, it is the fear of false, overly persuasive mate

rials affecting consumers that triggers the need to protect les commercial speech as opposed to other mainstream types of speech, and in effect, the Court hassuperimposed the fear onto the Cenlral Hudson test.This rationale appears to be the one that was

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The Court's opinion reflects a new-found andillegitimate confidence that it, along with theSupreme Court of Florida, knows what is bestfor the bar and its clients. Self-assurance hasalways been the hallmark of a censor. That iswhy under the First Amendmelll, the public,not the state, has the right and the power todecide what ideas and information are deserv-


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the listing of certifications. subject to anyappropriate disclaimers required by thestates, as long as the listing was nOI mislead

ing.

However, Peel was decided by only a 5-4

vote. Justice White objected that the listingof certification was potentially misleading,so stales should be allowed to regulate such

activity.52 Justices O'Connor. Scalia and

Chief Justice Rhenquist dissented on

grounds that the listing was simply mislead

ing since no one could ascertain the basisfor certification.53 Perhaps more significantis the faci that three justices in the majority- Brennan, Marshall. Blackmun - have

since retired from the Court.This past term in another 5-4 decision, me

Court held mal certain restrictions on directmail solicitation did nOl violate FirstAmendment commercial speech protections. Florida Btlr v. Went For II l"c. 54

The Court decided that requiring a 3D-daywaiting period before direct mail solicitations to traffic accident victims was a reasonable state regulation. "The Bar has substantial interest both in protecting injuredFloridians from invasive conduct by lawyersand in preventing the erosion of confidencein the profession that such repeated invasions have engendered."55

Things have changed dramatically since

the local bar association meeting referred to

above. For lawyers, ads and direct mail

solicitation are not only permitted, they are

utilized on a major scale. If an ominous note

has been sounded, it is in this last holding

by the U.S. Supreme Court. When Bates

was decided. the Court rejected arguments

thaI the profession would be demeaned if

print advertisements were permitted. Now,

to justify some regulation. the Court has

relied upon the demeaning and invasive

impact of a written solicitation.

It seems ironic that a profession which

survives on written and oral communication

now has its highest court holding thm such

communication is unduly invasive and

unnecessarily demeaning. How, and through

which medium, does the profession answer

that concern?

ENDNOTES

I. 433 U.S. 350 (1977).2. '" re Petition oj Ihe ArklUlsas Bar Associatioll.263 Ark. 948 (1978): /11 re Amendments to theCode oj Profenional Re~po"sibilityalUl CanOlI.\'ofJudicial Elhics. 276 Ark. 600. 637 S.W.2d 589(1982).3. 115 S.Ct. 2371 (1995)4. Rule 7.2 (a). Ark. Mod.R. Prof. Conduct.

5. Rule 7.1 (a). Ark. Mod. R. Prof. Conduct.6. Rule 7.1 (b). Ark. Mod. R. Prof. Conduct.7. Rule 7.1 (c), Ark. Mod. R. Prof. Conduct.8. Rule 7.3 (a). Ark. Mod. R. Pror. Conduct.9. L.McDaniel. Florida Bar V. We1l1 For It. Inc..29 Ark. Lawyer 30. 32 (Summer. 1995). (.....aspecial committee on lawyer advenising... willimmediately set about to evuluatc the [Weill ForII, Inc. I decision...and detenninc how itsrule...should impacL.lawyer ad\'cnising inArkansas.... ··).10. A. Chroust. The Rise of the Legal Professionill America x-xi (1965). ("A lawyer must shun allthose indirect ways of making haste to be rich. inwhich a man cannot be innocent:')II. J![. al 6.12. C. Warren. A History of the Americall Bar216(1966).13. M.Victor, "The Signs Are Very Ominous anda Chill Wind Blows:" Recent Del'elopments i1lLegal Advertising. 44 Ark.L.Rev. 123. 133(1991).14. Id.15. Note. Ambulance Chasing. 30 N. Y.U.L.Rev.182 (1955): Settlement of Persollal "yury Claimsin the Chicago Area. 47 NW.U.L.Rev. 895-899(1953).16. Bmes v. Stllle Bar ofArizona. 433 U.S. at354.17. /d.18./d.19. /d. at 358-59.20. /d. at 362-363.21. /d. at 365 (explanation added).22. /d. al 370-371.23. Id. at 372-73.24. Id. at 374-75.25. /d. at 375.26. /d. at 370.27. 436 U.S. 447 (1978).28. 436 U.S. 412 (1978).

29. Ohralik, 436 U.S. at 450-51.30. /d. at 451-52.31. /d. at 454.32. /d. at 465.33. 111 re Primus. 436 U.S. at 434.34. 436 U.S. at 435-436.35. 436 U.S. at 436.36. Eaton \'. Supreme Court ofArkansas. 270Ark. 573. 607 S. W. 2d 55 (1981).37. Eato" \~ Supreme Court ofArkansas. 450U.S. 966(1981).38. 455 U.S. 191 (1982).39. Zallderer v. Office of Disciplinary Counsel.471 U.S. 626. 238 (1985); Friedman \'. Rogers,440 U.S. I (1979); Pillsburgh Press Co. 1'.

HI/mall Relmiofls Comm'n, 413 U.S. 376 (1973).40. Zauderer. 471 U.S. at 638. ciling CentralHuds011 Gas & Electric Corp. \~ Public Sen'iceSomm·" of Nell' York. 447 U.S. 557. 566 (1980).41. 471 U.S. 626 (1985).42. /d. at 630.43. Id. al 632-33.44. /d. al 646.45. /d. at 647.46. Id. al 656.47. Shapero I'. KetltLlcky Bar Ass·n. 486 U.S. 466( 1988).48. /d. at 475.49. Having recently been in all automobile accident. the author can personally allest to these letters. To add insult to injury. the senders did noteven bother to address me by my first name eventhough 1had known many of them for almost 20years.50. 114 S.Ct. 2084 (1994).51. 496 U.S. 91 (1990).52. Id. at 119.53. /d. at 123.54. 115 S.Ct. 2371.55. 115 S.Ct. at 2381.


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Anicle IV deal; with foreign personal represenlati\'e~ and ancillaI) adminiSlration.Foreign reprclicntatives can prosecute ordefend a claim (or be sued as such) in theancillary juri,diction (3-715). may collectdebh H-l0!). Local interested panies areprotected. ,ee 4-207. He basically ,ubmits topersonal jurisdiction in certain situations.See 3-601 and 4--301.

Point V governs persons under disability. Icannot hope to outline its provisions and stillhope to contain the length of this anicle.Specifically. a parent can appoint a guardianof the person for a minor: a parent or spousecan do so for an "incapacitated person" ( 530 I). Failing appointment above indicated.the guardian must bc appointed by the court.See 5-303(a). 5-304.

The provi,ions for the per,onal ,upervision of the per\on arc separate rrom provisions for property and asset managementthrough a conservator. This can only be doneby formal proceedings before a coun. 5-40 I(a) The provisions with respect to conservmon,hip are cXlenflive and detailed.Again_ I cannot hope to cover thi,. TheU.P.C. provisions are exten~ive. but so areours (A.c.A. §2 -65-101 through 18-65503) If not in fact lifted in whole or in panfrom the .P.c. (and I believe it i, not). itcertainly seems to cover the \ame aspectsand problem,. I do note that a conservatorunder the U.P.c. takes title to the propeny ofthe incapacitated person. (5-419)

It also has a provision for foreignguardian,hip (A.C.A. §28-65-601 and 2-601and 603). as does the U.P.C Arkansas. likeU.P.C. has strict court ,upervision. It would,eem generally that we would look to theU.P.C only for ,ome minor change, ratherthan a complete substitution.

Our own prO\isions. A.CA. §28-67-101.et "ieq.. permit the appointment of a "conservator" in"itead of a guardian. but those provi\ions are cumulative to the guardianship pro~

visions.Pan 5 of Article V deals with durable

powers of auomey. which we already have(A.CA. §28-68-101 through 203). (I under'tand a full important part wa, deleted.)

Article VI deals with non-probate transfer"i. i.e. multiple person accounts. and theright' with re'pect thereto during life and at

death. a~ well a.... the Important protection offinancial institutions (6·221 through 6-227).In view of the latter. the financial institutionsmay well agree to the U.P.c. provisions.although the current provision .... purpon to

,olve the troubled ,ea of litigation sparkedby prior provir.,ionr.,.

Pan 3 <6-30 I through 5-311) incorporate,the Unifoml TOD Security Registration Act.which \\eJu't enacted In 1993 (A.CA. §1814--101. et ,eq.).

Anlcle VII deal, with TrustAdmimstratlon. It doe, not trouble me. butthe probate court is given exclusive jurisdicuon over tru ,,(1-101).

Finally. VIII comain, imponant effectived::ne and repealer c1ause~.

CONCLUSIOThis article mayor may not give you a

bird's eye \ iew. You will certainly get betterand more accurate information from therepom of the members of the SpecialCommittee (who have been assigned separate sections by the Chair). You will likewiselearn from the ultimate repon of theExecutive Council of the Arkan"ias Bar. Youmay. of course. get excellent informationfrom the articles I have referred to. Fromthese ...ources you can decide whether tooppose or back the adoption of the U.P.CDepending on the extent of .... uch relianceyou will expend a liule or a great deal oftime.

But one thing i, cenain. If you do anyprobate work at all - and most lawyers do,ome - if the .P.C i, passed. you (and allprobate judge,) face hours and hours ofstudy before feeling comfonable in dealingwith an) substantial item involving its subject matter. Hopefully. in time. such necessity will ease. but it will not be there initiall)- and initially you cannot afford to be onlypanially familiar. You cannot afford to onlyhave a liule kno\\ ledge about it.

The word, of Pope (not the one whoauthored Pope's Digest) will. initially. certainly fit:

"A Iiule learning i, a dangerou\ thing;Drink deep. or ta.... te not the Pierian spring:'

I. None of whom could be described asbashful.

1. Or. to complete the allu,ion. do we "bearthe ills we have or ny to others we know notr.oo .

3. The U.P.C consist' of eight articleswhich are divided into parts and. in tum, aredivided into sections. References in theU.P.c. itself are hy article and section butapparently are ,imply cited without u,e of

the word ··....eclion:· viz., "7-203:' not ",ection 7-103:'

4. Ba,ically. I touch fir't on Anicle II. thenIII and IV. and then the rest.

5. A ,elf-proved will i, one proven by anaffidavit .... imilar to our present procedure.

6. If it appears that there is. or might be. adeadlock. could we let the Probate clerk. ora judge, law clerk. or both. act in effect a, aregi,trar. and then lel matter,; proceed pur"iuam or .... imilar 10 informal proceedings.with the right of any interested part)' to petition that our exi .... ting procedures (not too different from supef\ised proceedings) go intoeffect?

7. From \1, ho....e works much of thi~ articlehas ,hamelessly evolved.

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JOHN L. JOH1~SON, JR.

Upon the recommendation of theCommillee the Supreme Court accepted thesurrender of Arkansas Law License of JohnL. John,on. Jr.. of Ru>selleville. Arkansas.

JAMES M. BRYANT II

A letter of caution was issued to James M.

Bryant II. for violation of Model Rule 5.5(a) upon the complaint of Mark . Waller.

In his affidavit of complaint. Mr. Wallerattached a leller dated September 22. 1994.he received from Bryant relative to Bryantsrepresentation of Restaurants of Arkansas.Inc.. and Jim Manning. Mr. Waller was sur·prised to receive the letter of representation,ince he had been informed by the Clerk ofthe Supreme Court of Arkansas that Bryantwas automatically suspended from the practice of law for failure to pay his license fees.Mr. Waller\ affidavit also contained a state·ment from the Clerk which evidencedBryants failure to pay bar dues for the years1990. 1991. 1992. 1993. and 1994.

Bryant's response contained an explanation concerning the tennination of his fulltime law practice in 1990 because of healthrelated mailers. Bryant stated that he did nothave a formal office but that. unknown to

him. the Supreme Court Clark's office continued to send his statements for bar dues tohis former address. Bryant asserted that henever received a bar dues notice so apparent·ly no effort was made to forward Olle to him.

In concluding his response. he asserted thathe checked with the Clerk. on a rare visit tothe Justice Building. and learned that hisdues were nOt current so he paid the deficiency in full. Further. he apologized for theoversight and Slated that he correcled it aspromptly as possible when discovered.

GREGORY W. WEAVER

Upon the complaint of ChrisMarcinkowski, Gregory W. Weaver was sus

pended for a period of one year for violation of Model Rules I. I. 1.3 and 8.4(d). The

disciplinary actions

leller of suspension was filed with the Clerkon July 7. 1995.

Mr. Marcinkowski stated in his affidavit

thut he is a claims adjuster doing business asMarcinkowski Claims Service. a sole propri

etorship. A competitor of his is AffirmativeRisk Management (ARM). Both companieshad adjusted claims for the EconomyCompanies in the past. These service agreements were entered into on a claim by claimbasis; neither company had a continuingcontract with Economy. On or about July21. 1993. complainant receIved. by fax. aclaim from the Economy Companies. but ithad ARM's addre" on it. Mr.Marcinkowski telephoned the EconomyCompanies and ",as told that he could handle the claim. In the meantime, however.ARM received the same claim fromEconomy by regular mail. ARM sued Mr.Marcinkowski in Municipal Court allegingthat he interfered with their business

expectancy and also filed a complaint withthe Arkansas Insurance Department. Mr.Marcinkowski then hired Weaver to repre·sent him and provided Weaver with a copy

of the Complaint. Interrogatories andRequest For Production of Documents.Answers to the Interrogatories were mailedto Wea\eron September 21. 1993 and\Veaver informed complainant of an October12 court date. Complainant told Weaver thathe would nOl be in court on that date and,aid that Weaver told him that he should geta ruling from the court in the near future.Apparently. however. Weaver did not attendthe hearing. lIIe a timely answer. nor fileanswers to the interrogatories because laterWeaver informed Mr. Marcinkowski that he

stumbled upon a default judgment in hiscase. but he ,hould not worry becauseWeaver would request a damages hearing. Ahearlllg date of January 13. 1994. was ,cheduled.

At about the same lime. ARM wasattempting to sati fy a Writ of Execution andWeaver infonned complainant that. becausethere was a lien on his vehicle, it could notbe seized. Subsequently. when the tow tfllckarrived to seize the vehicle complainant wasable to borrow money to satisfy the judgment.

Prior to the damage, hearing. Weaver told

complainant that his continuing legal education hour~ were deficient and that he mayneed another attorney. Mr. Marcinkowskithen told Weaver that hi~ services were no

longer needed.The complaint wa, sent by certified.

restricted delivery ntail on April 26. 1994. to

Weaver's address as it appears on the registry of allorneys kepI by the Clerk of theArkan,as Supreme Court. The complaintwas returned by the postal authorities withthe noration. ··Unclaimed'·. Following

attempts at two other addresses to serve\Veaver with the complaint in the mannerdescribed above. both of which werereturned "Unclaimed". Weaver was person

ally served on June 29. 1994. with the complaint and Lransmittal letter. Weaver failedto respond to the complaint and pursuant tothe Procedures of the Arkansas SupremeCourt Regulating Professional Conduct ofAllorneys at Law. Section 5D (I). the formalcomplaint was submitted to the Commiuee

for adjudication.

GREGORY W. WEAVER

Upon the complaint of oemi Stair.Gregory W. Weaver was .uspended for aperiod of one year for violation of ModelRule> 1.3. 1.4(a) and 8.4(d). The leller of.uspension was filed with the Clerk on July7. 1995.

In August 1992. complainant hired Weaverto represent her in a legal maller. Weaverwas provided requested documents andreceived a filing fce. Ms. Stair was unableto contact Weaver until April 1993. whenshe went to Wea\crs office. Weaver lold

her that he was sorry. but he was having~ome personal problems. Weaver promisedto look the documents over and return themalong with the filing fee if he decided not tolake lhe casco When Weaver did not contactM,. Stair in two (2) days. as promised. shecontacted him and learned that he was working on the case. She has not heard from himsince that time although ",he went to hisoffice which was closed. M,. Stair has beenunable to locate Weaver since then.

The complaint was ,ent by certified.re'tncted delivery mail on April 26. 1994. to

43 The Arkansas Lawyer Fall 1995---------------''''-~~'-'''=-''''''~----'-''''--'-'~----'

Weaver's address as it ~lppear\ on the registr) of attorneys kept by the C1er~ of theArkansal\ Supreme Coun. The complaint

was returned by the postal authorities withthe notation. ··Unclaimed··. Following

attempts at two other addresses to serve

Weaver with the complaint in the manner

described above. both of which werereturned "Unclaimed". Weaver was personally served on June 29. 1994. wi.h the complaint and transmiual letter. Weaver failed

to respond to the complaint and pursuant tothe Procedures of the Arkansas SupremeCourt Regulating Professional Conduct ofAttorneys at Law. Section 50 (I). the fomlalcomplaint was submitted to the Committeefor adjudication.

JON R. SANFORD

A letter of caution wa~ is~ucd to Jon R.Sanford for violation of Model Rules IA(b).1.5(a), 1.5(c), 1.15(c) and 1.16(d) upon the

complaint of Carroll and adine Jackson.The letter of caution was filed wi.h the Clerkon August I . 1995.

The Committee had presented '0 it forconsideration Lhe affidavit of Carroll and

adine Jackson. Mr. and M". Jacksonasserted many matter~ in their affidavit relative to Sanford·s representation of lhem in a

personal injury matter and a lender liabilitylawsuit. Mr. and Mrs. Jackson were originally represented by Evelyn Moorehead but

elected to have Sanford solely representthem during March 1991. In theiraffidavil.Mr. and Mrs. Jackson stated that Sanfordadvised them of one settlement offer butfailed to advise of structured settlementoffers. Sanford advised Mr. and Mrs.

Jackson not to accept the one offer of whichhe did tell them. Their reliance on hisadvice was to their detriment. It was alsohis decision to have a bench trial withoutexplaining this to Mr. and Mrs. Jackson.After the bench trial. Mr. and Mr>. Jacksonrequested that Sanford appeal the decision ofthe trial judge but he refused. After receiv~

ing the insurance draft, Sanford brought suitagainst Mr. and Mrs. Jackson b:'l<;;ed n theirfailure to endorse the insurance draft.Sanford lOok a Default Judgment in this

~ The Arkansas La" er Fall 1995


matter prior to the time allowed to file ananswer. When the matter was joiml} dismissed and the default judgment set aside.

anford continued to assert a right to the3.000 attorneis fee he was awarded in the

default judgment. Despite there being a dispute over which lien holder~ were emitled tothe funds. Sanford did not voluntarily

implead any of the funds into a courl ofcompetent jurisdiction but was forced to do\0 in a subsequent lawsuit. Sanford neverprovided explanation. Sanford did makepay-outs and provided explana.ion '0 theInternal Revenue Service. The explanationdemonstrated that he took a fee on anamount not detennined as protected and a$1.000 fee on an action which was dismi"ed. Sanford also paid himself 606.69for litigation costs to which no documenta~

tion was provided to establish. In addition,Sanford paid himself a large fee for reducingano.her allorney"s lien. Because of all theproblems wiLh the insurance draft and pro~

ceed,,>. Mr. and Mrs. Jackson chose to hireanother lawyer to represent them in theirlender liability lawsuit but were unable (0

obtain release of their files from Sanford.This was despite having others also requesttheir files from him. Finally, Mr. and Mrs.Jackson al~o included information relating toSanford's entry of a Consent Judgment ontheir behalf without ad\i,ing them.

When responding to the affidavit of Mr.and Mrs. Jackson. Sanford requested that theCommittee consider the aflidavit in the con~

teXl of clients who were billerly disappoint

ed wi.h the results of their trial. Sanford~tated that he put n great deal of effort intoMr. and Mrs. Jackson's lawsuit. Sanfordalso set out thai both he and a certified

financial planner explained the structuredsettlement offers to the Jacksons and encour~

aged lhem to consider the offers but theyrefused. Sanford stated lhat they wereadamam in rejecting any structured settlement. Sanford also asserted tha. he was not

asked any advice on whether to accept anyoffer. Sanford denied elec.ing a bench trialwithout consulting with Mr. and Mrs.Jackson. Sanford set Ollt that he discussedthe option with them in detail and that theylavored having a bend! trial. Sanford staledthat in a subsequent depo~ition. Mr~.

Jackson testified that she just ··assumed·· he

had alread) waived a jur) trial when he discussed the options with them. Sanfordacknowledged his rdu5.al to prosecute an

appeal for the Jacksons. As to the $3.000fee. Sanford stated that he had relinquishedany claim to it and had voluntarily deposited

it into the registry of the Court. I-Ie asselledthat he did have a right to the fee he chargedin reducing a previous attorney's lienbecause of the amount he saved lht:1Il on the

lien first asserted by the previous allomey.As to the release of 1r. and Mrs. Jacksons

files. Sanford stated that he offered toaccommodate them but he could not simpl)turn over the file since to do so would jeopardize hi, defense of any legal malpracticeclaim that had been threatened again"il him.

A. WAYNE DAVIS

A letter of caution was i~sued to A.Wayne Davis for \iolation of Model Rule1.5 (cj upon the complaint of Ka.hrynGarrison. The letter of caution was filed"ith the Clerk on Augu<t 18. 1995.

In her affidavit. Ms. Garrison stated thaiDa\'is agreed to represent her in a personalinjury matter and that he would not charge afee fur this representation. Ms. Garrison.

who was one of Davis employees. insistedthat he take a five percent contingent fee andmade many requests that a written fee agreement be prepared. She <ta.ed that Davisbecame hostile and refused saying thai thercwas no need for a wriuen agreement. Whenthe matter was ~etlled. Ms. Garrison requested the entire amOUIH be given to her so thatshe could make disbursements to the medical providers. She averred thaI this requestwa~ made because. during the course of heremployment. Ms. Garrison became uncomfortable with the leng.h of time it took Davisto payout funds of any kinu. Instead. Da\isprovided Ms. Garrison with a S7.500cashier's check which represented her portion of the settlement. When she requested asculement statement. Davis told her that herbills were paid and that there were still fundsowed her. When she received those fundsand the statement of disbur~cments. ~everal

discrepancies were noted including failure to

pay all of her medical providers.For his re<.,pono;;e. Davis "tated that he

never "insi"ted" that he would not charge afee. but would represent her for a reducednlle depending on the time, efron. energyand complexity involved. Davis stated thaiMs. Garrison never asked for a writtenagreement and that if she had. there werenumerous fee contracts in their orrice thatwould have been appropriate. Furthermore,David added. she would have prepared thefee contract for your review prior to its execution. which she never did. Davi\ alsodenied that she requested the entire $12.000seulement adding that that would have been"Iudicrous and totally unreasonable:' Davi\stated that the 7.500 was provided to Ms.Garrison at her request so she could meetcertain personal financial obligations. Davisdenied having advised Ms. Garrison that herbills had been paid. In fact. Davi, 'tatedthat she understood that she was to seulewith the medical providers. Davis concluded by ,aying that he will never represent afriend. family member or employee in a personal injury claim without a written feeagreement.

GERALD W. CARLYLE

A letter of caution was issued to GeraldW. Carlyle for violation of Model Rules 1.3and 1.4(a) upon the complaint of JimmyCarl Green. The leuer of caution was filedwith the Clerk on August 18. 1995.

The information before the Committeewa, based on the affidavit of Jimmy Carl

Green. Mr. Green hired Carlyle duringDecember 1993 to represent him in anauempt to stop an unlawful garnishment ofhi<., paycheck and to recover sums previousl}taken. Mr. Green·s paycheck continued tobe garnished even after he hired Carlyle.Mr. Green tried to contact Carlyle about thi,but Carlyle did not return his calls. Late in

December 1993. Carlyle told Mr. Green thatthe garnishment would SlOp as soon as thelawsuu was filed. From January 199~ untilDecember 1994, Mr. Green had very liulee.plained 10 him by Carlyle. He was.in"itead. offered excuses and found that communication with Carlyle became more and


more difficult. Mr. Green terminatedCarlyle"; ,ervices on December 6. 199~ andthen received a refund of what he had previously paid Carlyle.

Carlyle admiued in his re'ponse to havingbeen retained by Mr. Green on December 2.1993. It was Carlyle"; assertion that Mr.Green wa~ primarily concerned with therccovery of money instead of stopping thegarnishment. Carlyle al,o admitted that itwa~ po,,<.,ible that he did not return some ofMr. Green·s phone call but he did not think

~o. It \Val., also Carlyle\ a"senion that Mr.Green rejected what Carlyle told him couldpoSSIbly ,ettle the mauer. Then he admitshaving told his secretary to advise Mr. Greenthat he would file a lawsuit which he did not

do.

JOE T. LYNCH

A letter of reprimand was issued to Joe 1'.Lynch for violation of Model Rules 1.5(c)and 1.15 (b) upon the complaim of Robertand June Perina. The letter of reprimandwas filed with the Clerk on August 18. 1995.

Robert M. and June Perina submitted anaffidav it of complaint relating to Lynch·,representation of them in a debt collectionmauer. In their affidavit. Mr. and Mrs.

Perina said they first contacted Lynch bytelephone during September 1993. Heagreed to represent them 011 a 25% contingency fee but he never reduced the agreement to writing. Lynch filed a lawsuit forthe Perinas in OClober 1993. The cause continued on until December 22. 1994. when asettlement agreement was reached. Anagreement was entered into between Lynchand Lhe Perinas whereby he would receiveeach payment and then send 75'k of it to thePerinas while retaining hi 25'k fee. The

first payment was received by him duringJanuary 1995. Despite varlOU, assurance,by Lynch. Mr. and Mrs. Perina had receivednothing from him.

In re,ponding 10 the affidavit. Lynchacknowledged representation of the Perinas.Lynch asserted that he did send a Contractand Agrcement For Legal Representation tothe Perinas but it was not returned and henever thought of it again. He al,o explained

that Mr. Perina was mad at him. and theJudicial system, from the stan because thedefendant could not be placed in jail for failure to pay the debt. Lynch·, response also

lIleluded a summary for failure to pay thedebt. His response ah.o included a summaryof the pleadings and court actions taken inthe lawsuit from the time of filing until thetime of the settlement agreement. Lynchreceived the first $500 payment duringDecember 199~ and then discussed it withMr. Perina. It was Lynch's assertion thatMrs. Perina wanted him to keep the payment

at that time and he did not know they wereupset until receiving the affidavit of complaint.

SAM L. ANDERSON, SR.

A letter of reprimand was issued to SamL. Anderson. Sr. for violation of ModelRules 1.3 and 8.4 (d) upon the complaint ofChristopher Cooper. The letter of repri mandwas filed with the Clerk on Augusl 18, 1995.

Mr. Cooper stated that in 1991 his wifedied following a brief period of hospitalization. He believed that the physician cau,edand/or contributed to her death by prescribing a certain drug for her when she was discharged. In December 1992. Mr. Cooperhired attorney Tim Womack to file a medical

malpractice action against the doctor.Subsequently. Mr. Womack associatedAnderson a~ lead counsel and a complaintwa, filed in February. 1993. The defendantsfiled a Motion For Summary Judgment inAugust. 1994. On September 19, 1994, Mr.

Womack advised Mr. Cooper that thecomplaint had been di,missed for failure toobtain an expen witness. However. Mr.Cooper later learned that Anderson had filed

no response to the Motion for ummaryJudgment. On November I. 1994, Andersonwrote Mr. Cooper advi,ing him of the dismissal and that on October 3 I. 1994, he hadfiled a Notice of Appeal on his behalf.However. the atice was not timely filedand Mr. Cooper lost his right to appeal.

For Anderson's response, he stated that hebelieved all client contacts to be through Mr.Womack and that Mr. Cooper was the clientof Mr. Womack. Anderson averred that the

45 The Ar~ansas Lawyer Fall 1995

disciplinary actions/advisory opinions

complaint was filed and that it proceeded asone would expect with the taking of depositions. requests for interrogatories. responsesand a search for a qualified medical expert.

In October. 1993. the defendant requestedinformation about the expen and indicatedthat a Motion For Summary Judgment was

anticipated if an expert had not been located.Anderson stated that he did not file aresponse to the Motion since he believed il

to be without merit. Once the judge directedentry of a precedent Anderson faxed thisinformation to Mr. Womack who notified

Mr. Cooper that the complaint was dis

missed. The leller. dated September 19.1994, added that Mr. Cooper should contacteither Anderson or Mr. \Vomack if he wished

to "discuss these procedures." Andersonstated that his next communication was onOctober 28. 1994, when Mr. Womack's

office relayed Mr. Cooper's desire to appeal.Anderson averred that Mr. Womack wasadvised that the time to appeal had passed,

but prepared a Notice of Appeal and had itfiled.

In conclusion. Anderson stated that he didnot have access to Mr. Cooper on any regular basis because he was Mr. Womack's

client. Anderson added that Mr. Womackwas to have notified Mr. Cooper of the dismissal and advise him of his options.Finally, Anderson stated that had he been

communicating directly with Mr. Cooper,Mr. Cooper would have heard what he toldMr. Womack: that perhaps the case should

have been dismissed and given back to theclient.

ANDREW L. CLARK

A letter of reprimand was issued toAndrew L. Clark for violation of ModelRules 1.2(a). 1.3, 1.4(a) and 8.4(d) upon thecomplaint of Linda D. Rjggin.

In her affidavit. Ms. Riggin stated that on

June 30. 1993. she was assaulted andinjured. She hired Clark on July 7. 1993. to

represent her in connection with the personalinjury claim. She stated that this was theonly time that she met with him and he was

provided copies of the police report and herstatement as well as her medical records and

-16 The Arkansas Lawyer Fall 1995

health insurance claim forms. Ms. RigginSlated that Clark did send a letter to her

assailant and received a letter in responsefrom his attorney. However, this matter wasnever concluded despite Clark's assenionsthat he would take care of the lawsuit. A

lawsuit was never filed and the statute oflimitations has run.

For ClaJ"k's response. he admitted that hisconduct was probably dilatory and that hefailed to keep Ms. Riggin informed. By wayof mitigation. he averred that there were no

witnesses to the altercation and that herinjuries were difficult to substantiate becauseof pre-existing medical conditions. Shedeclined his suggestion to see a medical doctor. Although she sought relief from theprosecuting attorney. they opted not to filecharges against the assailant. Finally. Clark

stated that. in his opinion. the matter wouldnot generate sufficient fees to justify its pursuit on a contingent basis and he advisedMs. Riggin of his findings and belief by

telephone. but not in writing. As a result,she believed that Clark was pursuing thematter when, in fact. he was not.

JON ALAN WILLIAMS

A letter of reprimand was issued to JonAlan Williams for violation of Model Rules1.1, 1.3. 1.4(a), 1.4(b), 1.5(c), 3.2 and 8.4(d)

upon the complaint of Robert P. Cooper.The letter of reprimand was filed with the

Clerk on August 22, 1995.In his affidavit of complaint, Mr. Roben

PreSIOn Cooper set out various matterswhich occurred in relation to Williams' representation of him in a lawsuit against A.J.D.Temporary Services. Williams was hired by

Mr. Cooper during 1988. Mr. Cooperbelieved there was a written fee agreementbut when he asked Williams for a copyWilliams told him that the agreement wasverbal not written. Various pleading werefiled in the lawsuit Williams filed on behalf

of Mr. Cooper during the year 1990. Mr.Cooper also set out that Williams was difficult to communicate with at this time. Thelast correspondence Mr. looper receivedfrom Williams was during 1991. Williams

never told Mr. Cooper that there was a prob-

lem with his case. Every time Mr. Cooper

contacted Williams. Williams provided someexcuse as 10 why the case had not gone totrial. Mr. Cooper finally obtained his filefrom Williams during ovember 1994. At

this time, Mr. Cooper also went to theCircuit Clerk's office and learned his casehad been dismissed in 1992. Williams never

advised Mr. Cooper of this fact. When confronted with this. by Mr. Cooper, Williamsagain told him everything was okay and still

in effect.Williams response acknowledged that he

believed Mr. Cooper's affidavit set out substantially what had occurred in this maller.

ADVISORY OPINIO 95-04

I. Canon 5(C)(2) states that a [Judicial]

candidate shall not personally solicit oraccept campaign contributions or personallysolicit publicly slateu ~uppurt. Accordingly,

a candidate may not personally ask a supporter for a contribution. (The canon alsostates that if funds are personally received.as for example in a contribution by maB tothe candidate's residence. the candidate shall

promptly turn it over to the campaign committee).

Similarly. the candidate may not ask asupporter for permission to put the supporter's name in a newspaper or other form of

media advertisement, and may not ask alandowner for permission to place a sign onthe property. Such endorsements ally thesupporter or landowner with the candidate

and potential judge. In order 10 avoid theappearance of impropriety and to assure theintegrity and independence of the judiciary,see Canons I & 2. the candidate is not topersonally solicit publicly stated support of

such a type.A candidale may write a letter. either by

bulk mail or individually addressed. 10 allthe attorneys in the stale or a district or toother members of the electorate. The lettermay be mailed at any time. Such a lettermay include information about the candidate's background, the reasons for seekingthe office, and the candidate's plans for judi

cial office, consistent with Canon 5(A)(3).

The candidate may ask for suggestions,advice, the encouragement. the vote and the

support of the recipient. Such a letter seekssupport in a generaJ sense, but does not seek"publicly stated support." Similar requestscan also be made by the candidate to potential supporters by telephone or in person.

2. Financial support and "publicly statedsupport" are to be obtained by the campaigncommittee. Obviously the only method for acandidate, or potential candidate, La puttogether such a campaign committee is to

contact personally potential supporters andask them to serve on such a committee. The

formation of the committee can take place at

any time. The candidate has an obligation toensure that the committee understands therestrictions in judicial campaigns that are nolpresent in other political races.

The purpose of the committee is to isolate

the candidate from involvement in fund-rajsing and public statements of support. Theintegrity of the courts is nol served by the

suggestion or the appearance that donors orsupporters have special influence with thecandidate and potential judge. Ideally a candidate's only knowledge of supporters anddonors would come from public advertisements and media coverage of campaignfinance reports.

It is the committee that solicits funds fromattorneys and members of the public. Asmentioned above, with one minor exceptjon,

the candidate cannot even personaJly acceptcontributions. Likewise, it is the committeethat obtains pernlission for names of supporters to go into media advertisements,requests landowners to allow signs to beplaced, and seeks olher forms of "publiclystated support." However, the Code doesnot prohibit a candidate from accepting (asopposed to soliciting) such "publicly statedsupport." This distinction is crucial, for ithinges upon whether the candidate is takingthe initiative and seeking such support ormerely responding to the supporter's offer.

The former is prohibited; the latter is not.For example. assume a candidate gives a

well received speech and an individual

comes forward to "learn what I can do tohelp," The candidate may ethically do anyor all of the following: tell the supporter tocontact the campaign committee; obtain the

advisory opinions

name of the supporter and give it to thecommittee; ask the supporter if he wouldlike a bumper sticker for the car and givehim the sticker; ask if she would be willingto have her name appear in an advertisementand give the information to the committee;ask the supporter to call her friends and putin a good word for the candidate; ask if hewould be willing to have a yard sign andphysically deliver and erect it. The candidate, on the other hand, can never personallyask for a contribution.

The committee can prepare a list ofimportant individuals in the district that thecandidate may wish to contact personally.The candidate may then ask for their privatesupport, but cannot solicit publicly statedsupport. For example, the candidate can askindividuals to send post cards to friends

encouraging support of the candidate, Thecommittee may also contacl those individuals on behalf of the candidate and ask forpublicly stated support. The committeesolicits names for the newspaper advertisement, volunteers to make phone calls to thecommunity, and signatures on widely distributed post cards.

The committee can seek publicly statesupport from an organization. a local barassociation, or a well known individual or

public figure. The candidate cannQl personally solicit such support.

3. The committee can solicit funds andpublicly staled support no earlier than 180days before a primary election. All committee solicitations must cease no later than 45days after the last contested election in

which the candidate appears.Funds received prior to the 180 day period

or after the 45 day period are to be returnedto the contributor. A candidate shall not use

or permit the use of campaign contributionsfor the private benefit of the candidate orothers, Canon 5 (C) (2). Any campaignfund surplus shall be returned to the contributors or turned over to the state treasurer,and may not be retained for future campaigns, See Advisory Opinions 93-04 andand 93-07.

4. Apart from the campaign commjttee,individuals may seek to assist the judicialcampaign by writing letters to friends or byplacing advertisements in local media.

Canon 5(A) (3) (c) states that a candidateshall not authorize or knowingly permit anyother person to do for the candidate what thecandidate is prohibited from doing.Accordingly, a candidate could not stand byand do nothing if such an independent supporter were placing a misleading advertise

ment, see Canon 5 (A) (3) (c) (iii). Apartfrom this limitation, independent supportersmay take whatever actions they deem appropriate, and whenever they wish, to aid thecampaign of the candidate.

VALUATIONS/FAIRNESSOPINIONS

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studies (personal/business).Expenence with hundreds of cases andmany industnes. Court Testimony by

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MERCER CAPITAL5860 Ridgeway Cenler Parkway,SUIte 410. Memphis. TN 38120.

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MID-YEAR

MEETING

January 25-261996

Peabody Hotel,Memphis, TN


In Memorium

REP. L.L. "Doc" BRYAN

Rep. L.L. "Doc" Bryan died in July at theage of 75.

He is survived by his wife, Evelyn Bryan;two daughters and sons-ill-law: a sister; and

seven grandchildren.

bel' of both the Phillips County and Ark(ln"asBar Associations, the American Legion andSl. John's Episcopal Church.

JOHN L. ANDERSON

Phillips County Circuit Judge John L.Anderson died in July of hean failure at theage of 80.

Anderson served as judge of one of themost talked-aboul murders in Arkansas' history. The case involved Dr. Porter RodgersSr., a Searcy physician who was convicted inthe September 1974 murder of his estrangedwife of 50 years.

Anderson served as circuit judge in thestate's First Judicial Districl from 1973101983.

He retired from the circuit judgeship in1983 and was appointed juvenile judge referee. a position he served until 1989.

lie also served on the Phillips CountyDemocratic Central Committee, the HelenaWest Helena School Board. and was a mem

Runl HUSKEY BRUNSONRuth Huskey Brunson, of Little Rock,

died in September at the age of 79. She·~W'~fl'"was a retired Professor of Law and director.,."'."of the UALR-Pulaski County Law Library.

'~"III'"Mrs. Brunson accepted the job as law Iibrar-, ian in 1965, and began as one of the

library's first three employees. She hadgraduated from law school 24 years earlier,

~1I!1~1M;I receiving her L.L.B. from Arkansas LawSchool in Lillie Rock in 1941. Her professional background also included serving aslaw clerk to Arkansas Supreme CourtJustice Paul Ward and private practice oflaw, Brunson & Brunson, in her hometownof Prescott, Arkansas.

Mrs. Brunson was one of four womenin her entering class at the Arkansas LawSchool. She was admiued to [he Arkansas

Bar in 1941. Mrs. Brunson was a member of the Arkansas Association of Women Lawyers,the Pulaski County Bar Association, and the Arkansas Bar Association. She was a memberof the American Associalion of Law Libraries, which she served as chairperson of theMemorial Committee. Mrs. Brunson received the Arkansas Bar Association and Arkansas BarFoundation Outstanding Lawyer Service Award in June, 1982.

In honor of her late husband, John H. Brunson. Mrs. Brunson set up a scholarship fundthrough the Arkansas Bar Foundation in his memory. The John H. Brunson MemorialScholarship fund, whose purpose is to further legal education in Little Rock by awardingscholarships and awards to selected student members of the UALR Law Journal, is thelargest endowed scholarship of the Arkansas Bar Foundation. The scholarship is beingrenamed Lhe RULh Huskey and John H. Brunson Scholarship. Memorials may be made to LheArkansas Bar Foundation, 400 West Markham, Little Rock. Arkansas 7220 I.

Ruth Huskey Brunson dedicated over two decades of exemplary service to the law libraryand she saw a dream fulfilled. William H. Bowen, Dean of the UALR School of Law,expressed these thoughts: "Ruth Brunson was persistent, continuing presence for excellencein the Arkansas Bar Association for half a century and particularly so in law library science.She will be sorely missed:'

Carolyn Witherspoon, president of the Arkansas Bar Association, had this 10 say aboutMrs. Brunson. "She was a true professional. a friend to all of us and one of my mentors:'

WILLIAM S. (BILL) ARNOLD

...--------......., William S.(Bill) Arnold.age 74. ofCrossett. diedSaturday,October 14.1995 atDartmouthHitchcockMedicalCenter inHanover,NewHampshire.He was a

native and life-long resident of AshleyCounty.

Mr. Arnold served in the United StatesAir Force from 1942 until 1945. and washonorably discharged to active reserve asSecond Lieutenant having previously heldall ranks from Private to Master Sergeant.He received a SA and JD Degree from theUniversily of Arkansas and a Master ofLaw degree from Columbia University.New York City, NY. He began his lawpractice in Hamburg, Arkansas in July1948. He was presently Senior Partner ofArnold, Hamilton and Streetman, a fiveman law firm, with offices in Crossett andHamburg. He was presently serving asChair of the Arkansas Code RevisionCommission and as a Uniform LawCommissioner from Arkansas; Member ofthe Arkansas and American BarAssociations and American College of Trustand Estate Counsel and member ofAmerican Trial Lawyers.

His past legal activities include: PaslPresident and former Chair of the ExecutiveCouncil of the Arkansas Bar Association;and a founding member of the SouthernConference of Board Presidents of theAmerican Bar Association; Life MemberFellows of the American Bar Foundation:Chair Arkansas Fellows, American BarAssociation. He became a life member ofthe Uniform Law Conference in 1989,where he chaired numerous drafting committees including most receI1lly Committeeon Multi-Party Accounts and TOOSecurities Registration and Chair ofCommittee 011 Review of Conference Acts.

He is survived by his wife. SylviaArnold: his SOil and daughler-in-Iaw.Richard and Cindy Arnold; his daughterand son-in-law, Patricia and Henry King;his sister and brother-in-law; 9 grandchildren: 3 great-grandchildren; his nephew;two nieces and two stepsons.

PresidcI1l of the Arkansas BarAssociation, Carolyn Witherspoon. said"Bill was a true gentleman and a leader inhis community and in the bar:'

-l8 The Arkansas Lawyer Fall 1995

60685

~Rl'bsilmen 1n.<tUrann"POBox 3.."t~

15110 RJ\erfronl Dmer r Wille Ruck.Mansa' 7l2U:I.:tI9X, -.- SOI..ffiI..Ki91

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•A

C'NAForAll the Commllment8 You Make-

THE ARKANSAS LEGAL DIRECTORY"YOUR BLUE BOOK OF ATTORNEYS SINCE 1935"

PLEASE CALL OR WRITE FOR ADVERTISING OR BIOGRAPHICAL CARD RATE INFORMATION

Order as many copies as you need today!$38.00' plus $3.92 for postage and handling. $2.09 for sales tax, totaling $44.01.

Check must Accompany order.'Pnce subject to change without notice.

SPECIAL FEATURES

• A complete digest of courtscontaining terms, rules andjurisdiction of federal, state andlocal courts with names,addresses and telephonenumbers of court personnel.

• Professional and biographicaldata of some of the law firmsand indil'idual practitioners inArkansas.

• Professional associationsincluding officers, committeesand sections of the ArkansasBar Association.

• Acomplete roster of attorneysand law firms in Arkansas withaddresses and telephonenumbers listed by count)'/cit)'and alphabetically statewide.

• Ahandy guide to county, stateand federal offices includingdepartments of .5. andArkansas state government.

G CaMPA Y. I C.Dallas, Texas 75218-9000

Telephone (214) 521-52,8

Arkansas Bar

Association

Official Directory

of the

LEGAL DIRECTORIES PUBLISHI9\ 1 I Garland Road • P.O. Box 189000 •Facsimile (214) 324-9414 Toll Free (800) 447-5375

VOL.29_NO.4_FALL 1995

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Transcript of VOL.29_NO.4_FALL 1995