Whenyou need abank thatoffers professionalism to professionals, call

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

&.Commercial National Of Little Rock

January 1981Vol. 15, NO.1

THE OFFICiAl PUBLICATIONOF THE

ARKANSAS BAR ASSOCIATION

OFFICERSPhillip Carroll, PresidentJames Cypert, President-Elect

EXECUTIVE COUNCilDennis ShacklefordClint HueyWebster l. HubbellGus B. Walton, Jr.David R. MaloneThomas D. LedbetterRobert G. SerioLeRoy FromanFloyd Thomas, Jr.Charles CarpenterD. Mac GloverTommy Womack

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

EDITORC. E. Ransick

EDITORIAL COMMITTEERobert T. DawsonE. Alvin SchayCyril Hollingsworth

~e

ArkansasLawyer

SPECIAL FEATURESCover

On the Courthouse Square in Arkansas 44Second Injury Fund Norwood Phillips 4Lobbying The Lawmakers ....•..............Robert L. Brown 8Client Representation

Before IRS Rupert A. Stuart 15Tax Duties Of Personal Representatives

And Attorneys. . . . . . . . . . . Paul J. Nicholson 26Law Schooi Libraries ...............•........Ruth Brunson

George E. Skinner 38

REGULAR FEATURES

Presdienl's Report Phillip Carroll 2Juris Dictum 36Legal Economics . . . . . . . . . . • . • . • . • . • . . . . . . . . . . . . . . . . . . . . .. 30Law Schooi News 12Oyez-Oyez Carol Utley 18In Memoriam. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20Executive Council Notes ...........•...........W. C. Barrier 41Service Directory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. IBCAddenda C. E. Ransick 43Context W. Christopher Barrier 24AICLE News Claibourne W. Patty, Jr. 32The Arkansas Bar Foundation. . . . . . .Sidney H. McCullum 3Advising Innovators Robert R. Keegan 6Ethics 34AEGiS 22Lawyer's Mart 40

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

All Inquiries regarding advertising should be sent to The Arkansas Lawyer.above address.

January 1981 /Arkansas Lawyer/1

PRESIDENT'S REPORT

by PHILLIP CARROLL

THE CONSTITUTION OF 1980With considerable pride, I report that the House of Dele­

gates, authorized to speak for the Arkansas Bar Associa­tion, overwhelmingly endorsed the proposed Constitution of1980. Who sez lawyers are reactionary, unadventuresome,and afraid to accept change? Dr. Robert A. Leflar refers tothe document as a ticket into the 20th Century coming justabout as the 21 st Century arrives. Who can speak with moreauthority? Now the job remains for individual lawyers to urgetheir friends to vote for the new Constitution. The ArkansasBar Association has furnished each one of its members acopy annotated to show the significant changes from exist­ing law. Obviously, any conscientious lawyer can find sev­eral things about the document with which he or she woulddisagree, but lawyers are trained to weigh legal theories andto find where the balance lies. We have a clear duty to readthe proposed Constitution and express an opinion to all whowill listen. No greater challenge has faced the lawyers of thisState in any era.

THE ALTERNATIVE PROPOSALSFOR SELECTION OF

SUPREME COURT JUSTICESAND COURT OF

APPEALS JUDGES

Voters have a choice on the issue of how to select judgesat the appellate court level. One is the "Missouri Plan" whichincorporates these three concepts:

(1) A permanent, non-partisan committee of laymen,lawyers and a Supreme Court Justice which in­dependently generates, screens, and s'ubmits a list ofthree nominees;

(2) Appointment of one of the nominees by the Governorfor a probationary period;

(3) The Judge then runs for election unopposed on anon-partisan ballot.

The other choice is non-partisan election of judges.Clearly, either one of these choices is superior to the existingsystem which subjects candidates to the rigors and heavyexpenses of party primaries and a general election. While Ifavor merit selection, honesty compels me to acknowledgethat good arguments can be made in favor of both pians. Ihave searched the Index of Legal Periodicals since 19732/Arkansas Lawyer/January 1981

and have found 27 articles in the law reviews and bar jour­nals expressing one view or the other. There seems to be atotal absence of "hard data" proving that one system isbetter than another. Some empirically-based research hascome from Missouri and Texas. "Twenty Years of the Mis­souri Non-Partisan Court Plan," Mo. B. J. 32:370-6 (1976);"The Selection of Judges in Texas," 5 Houston L. Rev. 430(1968); "The Promise and the Performance of the MissouriPlan: Judicial Selection in the Fifty States," 32 U. of Miami L.Rev. 509 (1978). For what it is worth, one writer has statedthat six of eight lawyers in the two major cities of Missouriprefer the Missouri Plan. The key to success appears to be atrue nominating commission. The American Judicature Soc­iety (1974) pp 60-68; Judicial Selection in New Jersey, 5Seton Hall L. Rev. 765 (1975).

On September 20, the House of Delegates approvedmerit selection by a vote of 25 to 20. Improving the selectionprocess is only a partial solution. Until judicial salaries arehigh enough to attract good lawyers to the bench, we willhave to rely on self-sacrificing individuals who are willing togive of themselves and their families. In most instances, thishas brought us good judges, but it does not leave one feelingvery secure about the future.

JUDICIAL POLLS

Regardless of what happens in November with regard tojudicial selection, it is clear to me that lawyers must be moreassertive when judicial candidates run for office, whetherthere be partisan election, non-partisan elections, or merelythe issue of whether a judge should be retained in office foranother term. Bill Wilson of Little Rock chairs a committeethat is studying the problem. There is solid evidence avail­able that voters considered as a group know very little aboutjudicial candidates, and that the outcome of a judicial raceprobably hinges more on the number of yard signs a candi­date erects than on his professionalism. In 1976, a poll wastaken in Texas of779 voters chosen at random. 84.6% couldnot name the judicial candidate for whom they were about tovote or for whom they had just voted. The candidacy ofDonald Yarbrough for the Supreme Court evoked a wide­spread controversy, and he was opposed by the State Bar of

continued on page 19

ARKANSASBAR fOUNDA TION

In my report to you in the Octoberissue of the Arkansas Lawyer, I statedthat one of the goals or programs ofwork for the Bar Foundation during thisyear, was to try to raise the level ofprofessionalism among the membersof the Bar. We want to impress uponeach practicing attorney that he is in­deed practicing a profession and notsimply managing a business for funand profit.

The Free Symposium, which wassponsored by the Bar Foundation andmade available to all the lawyers of thestate in late Septernber discussed theavoidance of malpractice. This is only apart of what we are getting at in trying to"develop professionalism." The princi­ples and problems which were discus­sed in the symposium merely definethe perimeters of the problem. Theydraw the bottom line below which nolawyer dare perform or function. Ofcourse the professionalism we seekrequires much higher standards thanthe bottom line of malpractice.

By the way, I'd like to thank JimCypert, of Springdale, Marjorie Nib­lock, of Fayetteville, Jim West, of FortSmith, David Malone and Dean Ep­stein, of Fayetteville Law School, andof course Col. C. E. Ransick for theexcellent job they did with the Sym­posium. The Symposium was welldone, well received, and well attended.We did not have all the lawyers wewould have liked to have had attend theSymposium, and certainly not all thosewho shoUld have been there werethere, but we did have about twice asmany as "those who know aboutthese things" predicted we wouldhave. I think this is an indication of theinterest the lawyers of the state have inresolving these problems and becom­ing better professionals.

A recent discussion among varioussections of the American Bar Associa­tion concerning the code of profes­sional responsibility and whether or notto simply scrap it and start over with anew code or amend the existing code,

By: Sidney H. McCollumChairman

also points to the interest of our fellowlawyers in the problem at hand. How­ever, simply changing the code ordrawing up a new code is doing nothingmore than drawing the bottom line, orbottom limit, beyond which behaviorwill be condemned. Again this is notreally the problem we are trying to de­fine. Jacques Barzun, ProfessorEmeritus, at Columbia University inNew York, in his article "The Profes­sions Under Seige", after pointing outthat codes were just minimum limits,did state that they gave professionals away to police themselves and a way ofscreening and disciplining those whofall below our expectations. He went onto point out that that's not the true prob­lem. He said it this way:

"Policing, being negative, isnot enough. It will not effect moralregeneration, which can comeabout only when the members ofa group feel once more confidentthat ethical behavior is widelypracticed, approved, and ad­mired."

It is this type feeling that the Founda­tion is trying to instill in the members ofthe Bar of Arkansas.

The Public Education Committee ofthe Arkansas Bar Foundation has al­ready taken some giant steps in thisdirection. Over the past few yearsunder the able leadership of Chris Bar­rier of Little Rock, the Committee inconjunction with the Arkansas BarAssociation Public Education Commit­tee, has undertaken many projectswhich are directly beneficial to a lawyerin his relationships with his clients andthe public in general. Much has beenwritten about the "Image" of the lawyerand many projects have been under­taken to improve that image. TheFoundation's Education Committeehas printed several pamphlets to assistlawyers in their relationships with theirclients in explaining Wills, explaininglegal fees, telling laymen what it is liketo be a witness and what is expected of

them in deposition and many 0lhersimilar projects. (This years committeeis presently examining some otherareas in which pamphlets may beappropriate, such as the laymen'srights in traffic court and what can hap­pen when you buy on time or in install­ment notes.) In the past the committeehas sponsored and taken around theState an exhibit called The Guardians,depicting the role of local law enforce­ment officers in guarding citizensagainst crime and other danger. AlsoChris Barrier's column in the ArkansasLawyer known as Context has been aninvaluable source of assistance in help­ing the lawyer relate to his public, to hisclient, and to provide day to day sug­gestions on how to better practice lawand run his office so that he can bemore professional. Many of the proj­ects done by the public EducationCommittee have been directed towardthe public image of the lawyer or im­proving his PR or public relations, thisagain is only part of the problem ofbecoming more professional.

This year the Public EducationCommittee is chaired by Robert L.Brown of Little Rock. Bob and hiscommittee will be working in the weeksahead on projects and programs tobring the idea of professionalism notonly to the pUblic but to the lawyersthemselves. PR stands not only forpublic relations but also for profes­sional responsibility. There are many ofus who feel that if the professional re­sponsibility standards are met then theother PR will fall right in line. Maybe ifwe clean up our own act and developthe desire to do better than minimumrequirements and more than minimumeffort in civic pro-bono and bar Asso­ciation work the image will not needspecial attention.

There are many ways in which theseideas may be brought to the attention ofthe attorneys throughout the state andthe lay people. There may be pUblicinformation forums, panel discussions,

continued on page 28January 1981/Arkansas Lawyer/3

APPORTIONMENT AND

THE SECOND INJURY FUND

by Norwood Phillips

The law regarding the Second InjuryFund and apportionment is much likethat of the entire Workers' Compensa­tion Act: "If you don't like it, stick aroundand it will probably change in the nextfew days."

The statutory law relative to the Sec­ond Injury Fund and apportionment isall found in Section 13(f) and sub­sections thereto. There are sweepingchanges which will go into effect onJanuary 1, 1981. The full impact ofthese changes cannot be appreciated,however, until the appellate courtshave interpreted them. I would cer­tainly not be so presumptious as toguess what interpretation will beplaced on Section 13(1) after it is ef­fective in its amended form. I am ad­vised that the Workers' CompensationCommission is of the firm opinion thatthe 1981 amendment is substantiveand not procedural and that therefore itwill only apply to injuries occurring onor after January 1, 1981. While I agreewith this interpretation, I hasten to sug­gest that O1Jr appellate courts may not.This is merely one of the areas relativeto the new law that undoubtedly will bequestioned before the Workers' Com­pensation Commission and in thecourts.

In its present state, the Second InjuryFund is almost impregnable and canonly be reached in unique situations.The Second Injury Fund is funded bypayment of carriers and self-insuredsinto the fund, of which the State Trea­surer is custodian, of the su'm of$500.00 in every case of injury causingdeath in which there are no personsentitled to compensation. In its presentform, it applies only to employees whohave previously lost a hand, arm, foot,leg or eye and subsequently throughthe total loss of another member be­come permanently, totally disabled. Insuch a situation, the last employer isresponsible for only that degree of dis-

4/Arkansas Lawyer/January 1981

ability which would have existed hadthe prior disability not existed, with theSecond Injury Fund being responsiblefor the payment of the balance due.

However, effective January 1, 1981,the Second Injury Fund takes on abroad new perspective. As the law willbe, it is not necessary that the priorinjury to be a scheduled member nor isit necessary that the subsequent injurylikewise be to a scheduled member,but simply that the second injury, com­bined with the first injury, cause a de­gree of permanent disability. Bear inmind that Section 13(f), as it will beamended, does not require that theemployed be permanently, totally dis­abled, as it does now. In such a case,after the compensation liability for theemployer for the last injury, consideredalone, has been determined by eitherthe ALJ or the Commission, then thedegree or percentage of theemployee's disability that is attribu­table to all injuries shall then be de­termined and the Second Injury Fundshall be responsible for the difference.As you can see, this gives a muchlarger base to cases which will involvethe Second Injury Fund. It is indeedsurprising that the General Assemblyhas passed legislation which is favor­able to the employer or his carrier. Weall know that the insurance lobby isabout as strong as a $2.00 suitcaseand such legislation comes as a pleas­ant shock.

It appears to me that the Act, asamended effective January 1, 1981,relative to Second Injury Fund is notactuarially sound and will probably re­sult in bankruptcy of the Second InjuryFund within the foreseeable future. Ifthis is true, then legislation providingfor new sources of income to the Sec­ond Injury Fund must be passed. If not,then in the event of an insolvent Sec­ond Injury Fund, a permanently dis­abled employee will be without a re­medy after he has been paid benefits

(Editor's Note: At the Fourth AnnualWorkers' Compensation Institute,March 21, 1980, Norwood Phillips dis­cussed "Apportionment and the Sec­ond Injury Fund". Many attendees re­quested that he publish his discussionpaper, especially for the benefit of in­terested practitioners on Workers'Compensation who were unable to at­tend the Institute. Mr. Phillips is cur­rently the Chairman of the Workers'Compensation Section of the Arkan­sas Bar Association. He also is theco-author of the Association's Work­ers' Compensation System and its1980 update.)

calculated solely upon his last disabil­ity.

Before we look at the law regardingapportionment, we must be apprised ofthe applicable law regarding succes­sive injuries. If the second occurrenceis merely a recurrence of the originalinjury, then the employer and/or its car­rier at the time of the original injury isliable for the payment of additionalbenefits. On the other hand, if subse­quent occurrence is an aggravation ofthe prior injury, then the subsequentemployer and/or his carrier is respon­sible for the payment of additionalbenefits. It appears that the key wordrelative to whether an occurrence is arecurrence or an aggravation is"symptomatic." If the employee re­mains symptomatic following his initialinjury, then the subsequent event willprobably be interpreted to be a recur­rence of the original injury and willplace responsibility on the originalemployer. Moss Y_ EI Dorado DrillingCompany, 237 Ark. 80, 371 SW.2d528. On the other hand, if the claimantis asymptomatic following the initial in­jury and the subsequent occurrencecauses him to become symptomatic,then the subsequent employer willprobably be responsible for the pay-

ment of additional benefits. Burks,lnc.vs. Blanchard, 259 Ark. 76, 531,S.w.2d 465. The situation often ariseswhere the employer remains the same,but the carrier changes between theprior and subsequent injuries. In such acase the rule remains consistent. If theclaimant continues to be symptomaticfollowing the initial injury, then the priorcarrier remains responsible for thesubsequent occurrence, notwithstand­ing that it has gone off the risk. If, how­ever, the claimant becomes asympto­matic following the initial injury andsubsequently an occurrence comesabout which causes him to be againsymptomatic, then the subsequent car­rier probably becomes liable for thepayment of additional benefits.

I point out that many cases arisewhere an injured employee is deprivedof benefits for a prolonged period oftime, not because the authenticity ofhis disability is questioned, but simplybecause two carriers are unable toagree as to whether he has sustainedan aggravation or simply suffered arecurrence. Often such an issue can beresolved only after hearings at theCommission level and a determinationby the courts. Each carrier is usuallyreluctant to accept responsibility for thepayment of benefits for fear that suchan act would be construed to be anadmission of liability. It is submittedthat such a perplexing problem couldbe solved by a simple amendment tothe Workers' Compensation Act. Theamendment should give the Workers'Compensation Commission the powerto enter an ex parte order directing oneor the other carrier to pay benefits whilethe claim is pending without prejudiceto it and with the right to recover theamount of its payments from the othercarrier, with appropriate interest,should it finally be determined that theresponsibility for payment properlyrested upon the nonpaying carrier.There should be a safeguard in theamended law which makes it applic­able only where the injury and disabilityare admitted by both carriers with theonly issue being which carrier is re­sponsible for benefits.

In examining the law as it now isrelative to apportionment, we shouldfirst look to Larson as we all know thatinsofar as workers' compensation lawgoes Larson is the prophet and hisbook the Bible. Larson, Workmen'sCompensation Law, §59.31, Page10-285 states that to be apportionable,an impairment must have beenindependently producing some degree

of disability before the accident andmust be continuing to operate as asource of disability after the accident.As could be expected, Arkansas hasfollowed this rule, the Supreme Courtholding that the entire disability precipi­tated by an industrial injury of a claim­ant suffering from a latent disability iscompensable, and no attempt shouldbe made to weigh relative contributionof industrial injury and latent defect.McDaniel vs. Hilyard Drilling Com­pany, 233 Ark. 142,343 S.w.2d 416;C. Finkbeiner, Inc. vs. Flowers, 251Ark. 241, 471 S.w.2d 722. In both ofthese cases, the preexisting disabilitywas latent.

On the other hand, a review of13(f) (2) (ii) states: "If an employee hasa prior permanent disability not occas­ioned by an injury resulting while in theemploy of the same employer in whoseemploy he received a subsequentpermanent disability, the amount ofcompensation for the subsequent in­jury shall be as follows: if the sub­sequent injury is one that is notscheduled under Section 13(c), the in­jured employee shall be paid compen­sation for the healing period and for thedegree of disability that would have re­sulted from the subsequent injury if theprevious disability had not existed." Incases that fit this definition, the Arkan­sas Supreme Court has interpreted thesection literally. The landmark case isDavis vs. Stearns-Rogers Con­struction Co" 248 Ark. 344, 451S. W.2d 469. The Supreme Courtstated: "Our understanding of Ark.Stat. Anno. §81-1313(f) (2) (ii), is that ifDavis' prior disabilities are contributingfactors to his present, total disability,then Stearns-Rogers ConstructionCompany, as a subsequent employer,is not liable for 100% of the permanent,total disability but only for that degreethat would have existed had the priordisability not existed."

The Supreme Court, in the Daviscase, supra, recognized the wellreasoned rationale from Larson onworkers' compensation (Vol. 2,§59.31): "While at first glance it mightappear that the apportionment rulefavors the employer and nonappor­tionment the employee, in practice thenonapportionment rule provided theworst of the two evils from thestandpoint of the handicapped person.As soon as it became clear that a parti­cular state had adopted a rule requiringan employer to bear the full cost of totaldisability for the loss of the crippledworker's remaining arm or leg,

employers had a strong financial incen­tive to discharge all handicappedworkers who might bring upon themthis kind of aggravated liability. Whilethe loss of a single eye might mean acompensation liability of $5,000.00 fora man with two good eyes but$26,000.00 to a man with only one, thecompensation insurance premium onthe latter would naturally be markedlygreater. It has been said, for example,that within 30 days following the an­nouncement of the nonapportionmentrule in Oklahoma, between 7,000 and8,000 one-eyed, one-legged, one­handed men were displaced in Okla­homa."

A very recent Court of Appeals caseheld that where the preexisting dis­ability is not the result of a work-relatedinjury then the provisions of Section13(f) (2) (ii) do not apply. Marshall vs.Ouachita Hospital, CA 80-144 (Opin­ion delivered July 9,1980). The ration­ale of the holding of the Court of Ap­peals was that since Section13(f) (2) (ii) uses the words "previousdisability" that the definition of disabilitycontained in the Act at Section 2(e)must apply. Section 2(e) defines dis­ability to be "incapacity because of ac­cidental injury arising out of and in thecourse of employment. ..." The Courtof Appeals therefore concluded thatthe previous disability must have beenthe result of a compensable injury inorder to apply Section 13 (f) (2) (ii).However, the Court of Appeals recog­nized that Section 13(f) (2) (ii) as it willbe on January 1, 1980, is as follows:

"81-1313. Compensation for dis­ability.

(i) Second Injury.(1) Commencing January 1,

1981, all cases of perma­nent disability where therehas been previous disabilityor impairment shall becompensated as herein pro­vided. Compensation shallbe computed on the basis ofthe average earnings at thetime of the last injury. If anyemployee who has a per­manent partial disability orimpairment, whether fromcompensable injury orotherwise, receives asubsequent compensableinjUry resulting in additionalpermanent partial disabilityso that the degree orpercentage of disabilitycaused by the combined

continued on page 28January 1981/Arkansas Lawyer/5

ADVISING INNOVATORS

Who Needs A Company PatentPolicy?

Company Patent Policy should becoordinated with policy respectingtrademarks and copyrights, but onlypatents and inventions are discussedin this article. Two aspects are of in­terest to a small company, the first toestablish a profit from innovation, andthe second to avoid losses associatedwith possible infringement of the rightsof others to their innovations. The firstaspect will occupy this article; the sec­ond aspect will have to await later con­sideration.

In most cases, the best possiblereward from an innovation is theprofit generated by manufacturingand marketing products of the innova­tion. There is also a possibility of profitfrom licensing use of the innovation byothers. A good patent policy shouidcommence before any innovation hasbeen made.

Employees of the company whohave even a modest possibility of mak­ing inventions of value should be re­quired to sign Employee InventionAgreements. The Employee InventionAgreement provides that, in considera­tion of the employee's salary, the em­ployee will assign his inventions to thecompany. Normally the companywould take assignments only of thoseinventions which were related to orhelpful in the company business. Em­pioyees should also agree to maintainthe secrecy of any trade secrets or con­fidential business information in theirpossession so that the interests of thecompany will not be injured by disclo­sure to outside parties. One must takecognizance of similar obligations ofnew employees to previous employers;assurances should be obtained fromnew employees that any such obliga­tions have been revealed. The com­6/Arkansas Lawyer/January 1981

by Robert R. Keegan

COPyri9ht 198()Robert R. Keegan

pany should, of course, take care toavoid being a party to breach of knownobligations to a previous employer.

Employees should be encour­aged to make a written disclosure ofany idea for improving the company'sproducts or procedures. Forms shouldbe available which will assist the em­ployee in supplying the pertinent infor­mation, and there should be proce­dures for promptly reviewing such dis­closures and advising the employee ofdecisions respecting them. A system ofawards for invention disclosures whichare beneficial to the company is mostdesirable. Inventions which are suffi­ciently important for a patent applica­tion should result in an award to theinventor; other inventions may bemade which are beneficial but on whichthe company determines that it is not inits interest to file a patent application.These may also merit an award.

One person in company man­agement should have the responsibilityfor monitoring the company operationsto identify, record, and develop worth­while inventions and innovations madeby company personnel. The processneeds to be highly selective, since onlyfrom about one percent to ten percentwill be found to be susceptible of suc­cessful development by the company.

Depending upon the size and the or­ganization of the company, the se­lection of inventions for patentingmay be done by a single individualor by a small committee. Preferably,the selection process should not bedominated by an individual with a largepersonal role in generating innova­tions, although technological expertisemay be essential in the selection pro­cess.

A primary consideration in select­ing inventions for patent protection

is the prospect for commercializa­tion of the invention from a practicaland business point of view. Securing apatent in no way contributes to profit inand of itself and, in fact, is a SUbstantialitem of expense. On the other hand, apatent may significantly enhance theprofit from a product or manufacturingprocess which is effectively commer­cialized.

Probable patentability is a factorwhich may be evaluated with the aid oftechnical and legal expertise (a pre­liminary patentability search may be inorder). The estimated probability ofpatentability which should be requiredbefore going forward with patent pro­tection is strongly dependent upon twofactors; degree of commercializationplanned and the advantages of theidea over competitive products or pro­cesses. Some attention should begiven to the possibility of maintainingthe innovation as a trade secret, eitherin lieu of or in addition to filing a patentapplication.

Assuming that a patent application isfiled, it is important that the contactwith the inventor and others in­volved with the development of theinvention not be lost. In particular,patent counsel should be made awareof any improvements or changes in theproduct or process. Considerationshould be given to a further inventor'saward upon grant of a patent. A well­publicized award to the inventor of apatented invention is very effective inmaking employees invention con­scious.

While substantial profits can bemade from a successful program forlicensing patents or inventions, suc­cess does not come easy in an in­vention licensing program. Licensesalmost invariably must be sold, and the

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skills involved in selling inventionlicenses are no less than those in pro­duct or service marketing programs.Furthermore, the average company isless familiar with and less well or­ganized to market invention licensesthan it is to market its own product orservice. Licensing also involves grea­ter likelihood of litigation to enforceone's patent rights against any users ofthe invention who refuse a license orwho later repudiate it. Litigation is anexpensive procedure involving activi­ties which are generally not much to theliking of company management. How­ever, litigation may be necessary topreserve a profitable situation whichhas been obtained by good inventionmanagement, even in absence oflicensing.

Use proper patent marking on prod­ucts, and other steps, to advisewould-be infringers of the company'sdetermination to protect its patentrights. It serves to lessen the likelihoodthat expensive litigation will ultimatelyhave to be undertaken.

Avoiding problems with inventions orpatents of others is the subject foranother article; however, one pointneeds to be made here. The ability toobtain a patent on an invention doesnot mean that the product of the inven­tion can be made without infringing aprevious patent. Conversely one maybe unable to obtain a patent and yet beable to market the product without lia­bility to any prior patentee (any priorrelevant patents may be expired). Takenote therefore that only half the storyhas been told here, and other evalua­tions and analyses are required toavoid problems with patents or inven­tions of others.

With a well formulated and well exe­cuted policy in respect to inventionsarising in the course of the company'soperations, these matters may be dealtwith smoothly and maximum advan­tage will accrue from innovations of of­ficers or employees of the company.

#..,

January 1981/Arkansas Lawyer/7

by Robert L. Brown

SOME PRACTICAL TIPS

trophe if his advice is not followed."You'll lose all of Desha County if youdon't support this bill," the typical pleagoes. That's the unpardonable sin. Ihave watched a curtain literally fall overthe member's eyes and his lip curl indisdain when that technique was in­voked. A fact that some lobbyists losesight of is that the lawmakers are thepoliticians, and they don't need some­one on the make telling them what is intheir best political interests.

The second highly questionabletechnique is the Vanguard Missile ap­proach where the lobbyist comes inwith a beautifully packaged pitch thatsomehow fails to get off the ground. Iremember in 1976 Congress was in thethroes of deciding whether to fund aless expensive navy fighter plane dub­bed the F-18 Fighter ("Tomcat") whichdoes everything but juggle donuts. Alobbyist who represented a companywhich was interested in manufacturingthe F-18 came into the Senator's officewith a one hundred page brochure, re­plete with impressive glossy prints andengineering designs of the proposedplane and left it with the Senator's re­ceptionist. That brochure alone musthave paid the overhead that year forthe P.R. firm that prepared it. Anyonewho thinks that that information will getto a senator or much less that amember of congress will read some­thing that voluminous when it gets tohim is more than an optimist; he's de­luded.

bill got a mere five votes in Committee.The legislators even refused to studymy proposal in anticipation of the nextgeneral session, a ploy which usuallyallows the sponsor and lobbyist to exitgracefully with their dignity in tact. Iwaslucky to get out of there with the bill stillin one piece. Hence, I can only con­clude that good lobbying techniquemay be a lot easier to talk about than toput into practice.

But like Mr. Justice Stewart saidabout smut, I know bad lobbying when Isee it. And during my tenure in Wash­ington, I saw a lot of it, both by profes­sionals on location and by Arkansasconstituents, including lawyers. Eithererroneous information was conveyedor the information was transmitted in afashion not reasonably calculated topenetrate the overworked mental pro­cesses of our lawmakers. Or, worst ofall, the communication simply grousedabout a problem (some deficiencywithin the Occupational Safety andHealth Administration, for example)without offering a practical solution orreasonable course of action for thecongressman to follow.

Two oft-repeated lobbying techni­ques were so counter-productive withthe lawmakers I observed that theyqualify for special mention here. Thefirst is what I call the Deloss Walkerapproach; that is, the lobbyist who triesto give the senator or congressmanpolitical advice and threatens catas-

LOBBYING THE LAWMAKERS:

Many practicing attorneys have oc­casion sooner or later to contact theircongressmen or senators to ask forhelp. It may simply be a request forcopy of newly enacted legislation, likethe Bankruptcy Code which becameeffective last year. Or a recent Su­preme Court decision, hot off the pres­ses. Or some esoteric FDA regulationto help in a products liability case. Suchdocument requests are handledroutinely by congressional staffs asthey should be.

Oftentimes, though, lawyers willwrite, call, or visit their congressmenwith persuasion in mind. A break for anagricultural interest in a tax bill pendingbefore the Ways and Means Commit­tee, for example. Or assistance in re­viving a grant proposal for a rural waterproject which lies comatose in someabyss of the bureaucracy. It is this lattercategory of activity whether it be plead­ing, cajoling, or arguing a case beforethe lawmaker that I call "lobbying".

Here I must issue a caveat. While Ispent two and one-half years in theGovernor's office (1972-1974) andmore than three years in Washington(1975-1978) observing various de­grees of lobbying activity, my first sallyinto the field met with dismal failure.Last year I sought to chart a bill thatcould only be described as for thecommon good through the Scylla andCharybdis of the Arkansas GeneralAssembly. Despite my best efforts, my8/Arkansas Lawyer/January 1981

Editor's Note: If anyone should have a "feef" forlobbying-well, Bob Brown is such a lawyer. Brown wasUS. Representative Jim Guy Tucker's Administrative As­sistant during 1977-78. He served as Legislative Assistantto Senator Dale Bumpers during 1975-76 and LegalAide to then Governor Bumpers from June 1972 toJanuary 1975, He is now in private practice in Uttle Rock.He holds a B.A. (Magna Cum Laude) from the Universityof the South; a M.A. from Columbia University; and hisLL. B. from the University of Virginia Law School. Hisacademic awards include Phi Beta Kappa, Woodrow Wil­son Fellowship, Rhodes Scholar Finalist and Law Schoolscholarship. He is a member of numerous professional,civic and religious organizations.

Which leads me to a digression onthe professional lobbyist, who unlikethe typical allorney representing aclient in Washington on a one shotdeal, lobbies for a living all day everyday. I remember when I first arrived inWashington in January, 1975 to workfor Senator Dale Bumpers. I was driv­ing to work with another of the Sena­tor's uninitiated aides who will gonameless because of his recently ac­quired eminence. And we decided thatfor the first six months of 1975 wewould circulate the rumor among theprofessional lobbyists that the best wayto get to Senator Bumpers was tosatisfy all of Bob Brown's base wantsand desires and for the next six monthswe would circulate the same rumor foraide X. It was an ingenious idea. Prob­ably the best idea I had in my three andone-half years in Washington. Unhap­pily, the plan was never implemented.(Or at least not successfully.) But thetruth of the maller is some lobbyistswould have believed the rumor andtried to do exactly that.

For professional lobbyists are notintroverts. The rawest example oflobbying I observed was the lobbyistwho stands at the main door of theHouse of Representatives shouting tomembers as they rush into vote on aspecial interest issue: "This is an ayevote, Joe." Or "this is a no vote, Bill." Isaw that happen quite frequently, es­pecially on the House side of Con­gress. I don't know how effective thattechnique is. I'd like to think not veryeffective, because the appearance ofit, if nothing else, is so wrong. But I'mafraid it does have an impact-as areminder to the incredibly busy con­gressmen, if nothing else.

Some lobbyists who work the Arkan­sas General Assembly are no better. Irecall driving to work last January andhearing a radio newscast about a staterepresentative who had introduced aresolution to stop lobbyists at the Ar­kansas State House from actually par­ticipating in voice votes. I suspect thatthose lobbyists guilty of the infractionwere simply living out their suppresseddesires,

But one of the most frustrating thingsI experienced in Washington were theprofessional lobbyists, who were paidto be "up to speed" on issues but whowere woefully out of touch. Either theywere not conversant with a bill's terms;or, out of date on what had happened tothe bill in Committee by amendment orotherwise; or not familiar with their em­ployer's position on a proposedchange.

These are the people who are sup­posed to be sharp, intelligent informa­tion centers for the Congress, Andwhen they fail to be, particularly at akey time, when things are breakingquickly, as they often are in Wash­ington, it couldn't be more harmful foreveryone or more aggravating.

Now for my tips to the lawyer/embry­onic lobbyist. There are only six,

THE FIRST IS DON'T TRY TO CONA CON. I can't tell you how many timesI heard people come into a representa­tives or senator's office on what wasobviously a pocket book issue forthem-something like federal moneyto establish an irrigation project abut­ting their land-and conclude theirpitch to the member with, "And Con­gressman, this will mean more jobs forArkansas," or "And Senator, this will bebetter for Arkansas consumers."

Those people may have thought thatthey were telling the lawmaker what hewanted to hear, but generally, that sortof calculated appeal does nothingmore than breed contempt. My point isthat our congressional delegationknows all the tricks, and it shows acertain lack of respect for them if youdon't acknowledge that fact.

MY SECOND TIP IS AVOIDSWAMP FEVER. Or at least avoid cer­tain kinds of it. And by swamp fever Imean the mass mailings which I thinkare overrated in effectiveness, es­pecially form lellers and preprintedpostcards, For one thing, most formletters will get a form response back.Not only law firms have word proces­sing equipment these days. Also, Con­gress is fully aware that it's not thatdifficult to get signatures to simulate agroundswell of popular opinion, Often,it's a maller of walking around theworkshop or the general store.

Moreover, certain issues always geta knee jerk response from special in­terest groups and everyone knows it.Abortion, the Panama Canal, labor lawreform, national health insurance, SaltII. On labor law reform, in particular, Irecall boxes of mail-postcards andform letters----<:oming in on both sidesof the issue, That kind of war of themimeograph machines not only loseseffectiveness, but it begins to have anegative effect after a point.

Now don't misunderstand me, A let­ter campaign can be effective. Indivi­dualized, well thought out commentson issues do have an impact and themember usually reads them, Thatshould be the approach of attorneys inparticular.

continued on page 10

January 1981/Arkansas Lawyer/9

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Those of you who have watched thevoting process from the senate orhouse galleries have seen these con-versations. .

That's another reason why lobbyingcommittee members for the legislationinvolved is so important. They in­fluence the votes of other members.Hence, the best way to impact on aparticular member of Congress maywell be to work with a member of thelegislative committee he is close topersonally and philosophically andthen watch the rippling effect. .

There have not been many articleson communication techniques. Maybethis is because the job of congreSSionalpressure has been tarred with such adubious brush that approaches tolobbying are more often whispered ~nback rooms. But if that is the case, It swrong. No longer is the typical law­maker's ear limited to major campaigncontributors. And goodness knowS, weall have an overriding interest in a wellbriefed and informed Congress.

Most of this advice, admittedly, hasbeen just good common horse sense.In Washington, though, detailed ,n­formation goes hand in hand with ef­fective representation. The lawmakersknow that and they are hungry for datathat will help them win their cases. Ifyou provide them with just that ,n aneffective manner, avoiding some of thepitfalls noted above, you will be threebases to home.I.....

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A good lobbyist strives to help themember find a middle ground. I canassure you that those who do are muchmore vital to the legislative process andmuch more appreciated.

TIP NUMBER SIX IS AVOID THED.C. LAW FIRM ORNAMENT. D.C.law firms like COVington & Burling andArnold & Porter may know how to cut itbetter with the U.S. Supreme Court andsome regulatory commissions (I evendoubt this), but they are not half aseffective as good old Lawyer Allworthyfrom the congressman's home districton an issue of importance to that dis­trict. In that situation, a kind of xeno­phobia is likely to consume themember when a hotshot D.C. attorneyfor hire insinuates himseif into anArkansas problem. (This tip in particu­lar should be welcomed news.)

My final point is not a tip but falls intothe best-kept secret category. It's inanswer to the question: who has themost influence on a member's vote: Hiswife? Top aide? Friends back home?Or pressure groups? I'd have to say attimes, any and all of the above. Butmost consistently it's the member'sown peers; that is, the other senatorsand representatives who influence himthe most. Time and again a senator willwalk onto the floor and ask anothermember who is knowledgeable on theissue (usually someone on the legisla­tive committee through which the billpassed whose political philosophy iscompatible with his own) how to vote.

Lobbying... Tips,continued from page 9

TIP NUMBER THREE. LOVE ANAIDE, BUT ONLY THE RIGHT ONE.Learn who actually advises the con­gressman on the issue of interest toyou-who does he have confidence in.Then, bird-dog that person and makesure that he or she is well briefed on acontinuing basis. Here, the maxim ofthe wheel that squeeks the loudestgets the grease is very appropriate.

Some aides have tremendous powerand influence. Judge Richard Arnoldwas a good example. Ark Monroe(Senator Bumpers) and Bruce Lindsey(Senator Pryor) are others. Ferret outthose who do; sometimes the aides infavor change with office politics beingwhat they are. But concentrate on thatperson. In Congress, aides are exten­sions of the member himself. They cando as much for you and sometimesmore than the member can. Andthey're much more accessible. They'reonly a long distance telephone callaway and the good aides always returntheir calls.

TIP NUMBER FOUR. BELIEVE ME,BREVITY IS THE SOUL OF WIT. Bebrief and informative. Make a couple ofkey points, especially if you are talkingwith or writing directly to the senator orrepresentative himself. Otherwise yourmessage will have the staying power ofcoins thrown up against the wall.

Include legitimate Arkansas sta­tistics. Not to can, but to inform. Whatwill the effect be on the representa­tive's district or on the state as awhole-<ln per capita income and re­venues. Those are questions that willcome to his mind if you don't coverthem.

TIP NUMBER FIVE. AVOID THEPURE PARTY LINE IN LETTERS ORTESTIMONY OR A VISIT. I rememberin the House Ways and Means Com­mittee hearing a representative beratea national special interest lobbyist forwasting his and the Committee's timeby spewing forth an uncompromising,stereotypal position for his client thatwas of no help to the Committee intrying to reach a compromise position.

"I could have written that statementin my sleep," the member shouted.

The lobbyist was chagrined and si­lent, of course.

Maybe lobbying, whether profes­sional or individual, should just be theadvocation of one position, leaving thejudging to the legislators. But I don'tthink so and more importantly the law­makers I've known don't think so either.10/Arkansas Lawyer/January 1981

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January 1981/Arkansas Lawyer/11

LAW SCHOOL NEWS

Dean David G. EpsteinAssistant Dean Ellen Brantley

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE

(Editor's Note: With this issue, we wel­come Dean David G. Epstein as theregular columnist for the Law SchoolNews from the School of Law, Univer­sity of Arkansas, Fayetteville.)

Since I have been in Arkansas, bothlaw schools have used this column to"boast" about the books and law re­view articles by faculty members, thespeeches by deans, and the lectures atthe law school by prominent legal fig­ures. I could use this space to name thetwelve facuity members working onarticles or the five faculty membersworking on books or to list the bar as­sociations and Rotary Clubs that I havevisited. And, with a fall continuing legaleducation calendar that includes DanDobbs, Bill Young, and Irving Younger,we have at least our share of "name"lecturers to tout.

This month, however, I am going todo something a little different. Insteadof bragging on myself or the faculty, Iwould like to focus on our students andour educational program for our stu­dents.

Class of 1983On August 21, 1980, 197 men and

women were welcomed to the study oflaw by Attorney General Steve Clark,President-Elect of the Arkansas BarAssociation Jim Cypert, and the faCUltyof the University of Arkansas School ofLaw.

The University of Arkansas School ofLaw decided to reduce its enteringclass from around 225 to around 190.This is making it possible to offer eachfirst year student one of his or her basicfirst year courses in a "small section" ofno more than 25. This year, for exam­12/Arkansas Lawyer/January 1981

pie, each first year student is takingeither contracts or torts in a small sec­tion. With only 25 students, a professorcan call on each student regularly,monitor each student's progress, re­quire written assignments throughoutthe semester, and teach lawyeringskills.

Each first year student is also takinga two hour course on Legal Method thatis designed to develop the two mostbasic lawyering skills: (1) the ability toanalyze a legal problem and (2) theability to communicate that analysis toothers. The course surveys the threeforms of legal materials that lawyerscommonly work with~ases, statutes,and administrative agency regulationsand rulings.

Skills TrainingThird year students again have the

opportunity to develop more technicallawyering skills through classroom in­struction in Trial Advocacy and OfficePractice and by working in the Univer­sity of Arkansas School of Law's clini­cal programs.

Professor Carlton Bailey, the direc­tor of the Law School's clinical pro­gram, is rapidly establishing himself asone of the national leaders in clinicallegal education. This summer, Profes­sor Bailey was one of approximately 50professors who attended a nationalseminar on clinical legal educationsponsored by the Association ofAmerican Law Schools in Montana.Professor Bailey was one of 13 clinicallaw teachers from around the countrywho met in Washington, D.C. on Sep­tember 22, 1980, to plan for future fed­eral support of clinical legal education.And in October Professor Bailey will betravelling to South Carolina to present

a demonstration on clinical teaching ata regional conference for law teachersin the Southeastern United States.

Joe Reed has joined the law schoolclinic as supervising attorney. Joe hashad significant practice experience,and the students are enjoying andbenefitting from working with him.

The University of Arkansas School ofLaw recently received a major grantfrom the United States Department ofEducation for its clinical program.

Student ActivitiesAs always, law school learning is not

limited to the classroom. University ofArkansas law students are again in­volved in a wide variety of extracurri­cular activities that add to their legalexperience and knowledge. Theeditors of the Arkansas Law Revieware working on a Uniform CommercialCode symposium issue honoring JoeBarrett of Jonesboro, one of the lead­ing figures in the development and his­tory of the UCC. Officers of the Reviewinclude: Ann Faford, Kankakee, Illinois;Buck Farrow, Fayetteville, Arkansas;James Goldie, SI. Joe, Arkansas;Randall Lamb, Delight, Arkansas;Jacqueline Morgan, Clay, Louisiana;Randall Sandiffer, Arkadelphia, Arkan­sas; Michael Smith, Melbourne, Ar­kansas; Beverly Stites, Sallisaw, Ok­lahoma; Robert Topping, Bull Shoals,Arkansas; Stephen Wood, Fayette­vi lie, Arkansas.

Students at the University of Arkan­sas School of Law are again competingin the National Moot Court Competitionsponsored by the Bar of the City of NewYork. Doug Carson of Fayetteville, Ar­kansas; Charles Harwell of Wayne,Michigan; and Robert Topping of BullShoals, Arkansas, are now writing their

I

"

brief on this year's problem which in­volves federal regulation of commodi­ties fraud. After completing their briefand engaging in numerous practice­oral arguments, the team will competein the regional competition in Okla­homa City in November. This year'smoot court team is being coached byProfessor Don Garner, who adminis­tered a very successful moot court pro­gram at Southern Illinois University be­fore joining our faculty.

A Student Research Group chairedby Kent Jolliff of Little Rock, Arkansas,is providing legal research assistancefrom the Arkansas Bar. Law studentsare again assisting lawyers with bothtraditional legal research and compu­ter-assisted iegal research. GaryHartman, a new Assistant Law librar­ian, will be supervising all computerassisted legal research. Before joining

our library staff, Gary was the librarianfor a major Washington, D.C. law firm,Cadwalader, Wickersham & Taft; hehas extensive experience in compu­ter-assisted legal research.

Students are also active in local,state, and national bar activities. MarkRobens, a third-year student fromPhoenix, Arizona, is Governor of the10th Circuit of the American Bar Asso­ciation Law Student Division; Kent Jol­liff is Lt. Governor.

ConstructionStudents and faculty are not the only

ones working at the law school.Waterman Hall is being remodelledand the building is, at times, full of car­penters, electricians, and masons. Anoffice is being built in the library for thenew assistant law librarian; a room is

being added to the library so thatLEXIS, WESTLAW, and EDUCOM canbe relocated in a more convenientarea. A locker area is being convertedto offices for student organizations anda new student lounge. The space for­merly used for a student lounge andstudent organizations is being dividedinto interviewing rooms for law firms, aroom to house our new word proces­sing equipment, and office space.Additional office space is needed forthe Law and Agricultural program andother new law school programs. Fi­nally, the courtroom is being remodel­led to facilitate videotaping of litigationskills courses. The contractors promisethat they will finish all of this work wellbefore Christmas. When the remodel­ling is finished, Waterman Hall will bemuch more functional, much more at­tractive. In the meantime,...

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT LITTLE ROCK

SBA Wins National AwardThe 1980 Law Day events spon­

sored by the Student Bar Associationwere recognized by the Law StudentAmerican Bar Association which se­lected UALR's SBA as a co-winner ofthe Association's Law Day Competi­tion.

Law Day events included a speechand question and answer session withGovernor Clinton, a similar programwith Jim Guy Tucker, Chairman of theWhite House Conference on the Fam­ily, and an Awards Banquet at whichJudge Henry Woods was the speaker.Nancy Echols was chairperson of theLaw Day CommiMe.

Title XI GrantThe Clinical program of the School of

Law has received a grant from the U.S.Department of Education for the thirdyear. The grant is awarded to help fi­nance innovative legal education, andis used to hire attorneys to assist fa­culty members in supervising studentsenrolled in the clinic.

New ScholarshipsThe Rose Law Firm of Little Rock

has established through the ArkansasBar Foundation two scholarships at theSchool of Law. A $10,000 scholarshipfund has been established in the firm'sname, and a $5,000 fund has beenestablished in the name of Judge U. M.Rose, a former partner in the firm whoserved as President of the AmericanBar Association. The income fromthese funds will be used to providescholarships for students selected bythe School of Law Scholarship Com­mittee.

The UALR Association has estab­lished a full tuition scholarship whichwill be awarded each semester. In ad­dition, the Association has establisheda scholarship in memory of Dean Car­michael of the Arkansas Law School.This scholarship was donated by grad­uates of the Arkansas Law School.

The law clerks of U.S. District JudgeOren Harris have estabiished a schol­arship fund in Judge Harris's honor atthe UALR School of Law. The fund is acontinuing one to which the law clerks,and other friends of Judge Harris, will

continue to contribute. Anyone inter­ested in contributing to this new JudgeOren Harris Scholarship Fund shouldsend their check to the fund in care ofUALR School of Law.

A Frederick Spies Memorial Fundhas been established in honor of Pro­fessor Spies who died in August. Amemorial to Professor Spies appearsin the In Memoriam Section of this is­sue. Contributions to the MemorialFund may be sent in care of the UALRSchool of Law.

Professor Morris Arnold to Teach atSchool of Law

Professor Morris ("Buzz") Arnold willbe a visiting Professor of Law at theUALR School of Law in the spring se­mester. Professor Arnold, a native ofTexarkana, is currently vice-presidentand Director of the Office of the Presi­dent at the University of Pennsylvania.

Professor Arnold has a bachelor'sdegree in electrical engineering and alaw degree from the University of Ar­kansas at Fayetteville. He served as

continued on page 14January 1981!Arkansas Lawyer!13

Law School News,continued from page 13editor-in-chief of the Arkansas LawReview. He also holds the LL.M. andS.J.D. degrees from Harvard Univer­sity.

He served on the law school facultyof Indiana University from 1971 to 1976when he joined the faculty of the Uni­versity of Pennsylvania Law School. In1978-79 he was Associate Dean of theLaw School and became director of theOffice of the President in August, 1979.He was named vice-president inJanuary, 1980.

Professor Arnold is the author of anumber of books and journal articles onlegal history. He will teach courses inlegal history and property at UALR.

Faculty NewsDonaghey Distinguished Professor

Robert R. Wright has been electedVice-Chairman of the Little Rock Plan­ning Commission. On October 14, headdressed the Greater Little RockLegal Secretaries Association on "TheLaw of Property."

Professor Susan Webber served onan American Bar Association inspect­ion team which visited the University ofBaltimore School of Law on October6-8.

Professor L. Lynn Hogue spoke onthe Local Government and GeneralProvision Article of the proposed Ar­kansas Constitution at a News MediaSeminar held September 25. OnSeptember 24, Professor Hogue ap-

peared before the Involuntary Com­mitment Subcommittee of the Joint In­terim Committee on Judiciary of the Ar­kansas Bar Association's Committeeon the Mentally Disabied, which hasproposed legislation revising theinvoluntary commitment procedure.

The 1980 supplement to ProfessorFred Peel's Consolidated Tax Re­turns has been published by Calla­ghan & Co. Professor Peel was one ofa panel of speakers on Mining IndustryTaxation at the 1980 Convention ofThe American Mining Congress in SanFrancisco on Monday, September 22.

On September 4, Dean RobertWalsh spoke to the Union County BarAssociation. On September 9, he ad­dressed the North Little Rock RotaryClub and on September 11, the SearcyKiwanis Club. He discussed thedevelopment of the School of Law andthe future of the legal profession in Ar­kansas. Dean Walsh was reappointedto the Pulaski County Bar AssociationExecutive Committee for the 1980-81year.

Professor Fred Harris attended the1980 Conference of the Southwest As­sociation of Pre-Law Advisors in NewOrieans on October 2-3. He has beenelected Treasurer of the Labor LawSection of the Arkansas Bar Associa­tion, and appointed to the Section'sNewsletter Committee.

The work of Assistant Dean ClayPatty with the Arkansas Institute forContinuing Legal Education is discus­sed in his separate article in this issue.

Law School Holds DevelopmentalDisabilities Conference

The UALR School of Law sponsoreda Conference on DevelopmentalDisabilities and the Law, funded by theGovernor's Planning Council onDevelopmental Disabilities. ProfessorL. Lynn Hogue of the School of Lawwas the director of the Conference,which was cosponsored by the Arkan­sas Bar Association Committee on theMentally Disabled, of which ProfessorHogue is Chairman, and the ArkansasInstitute for Continuing Legal Educa­tion.

The Conference was held on Octo­ber 10-11 at the Camelot Inn and theSchool of Law. Because of the grant,the conference was free to participantsOver 100 lawyers and others interest­ed in the legal problems of thedevelopmentally disabled attended.

Fall Altheimer LectureProfessor Norval Morris of the Uni­

versity of Chicago Law School deli­vered the Fall 1980 Altheimer lectureon Friday, September 19. He spoke on"Mental Illness and the Criminal Law,"which is the subject of a book he iscurrently writing. A portion of ProfessorMorris's book will be published first inthe UALR Law Journal.

The lecture was followed by a recep­tion at the Law Center, at which Arkan­sas Bar Association's members attend­ing the Fall Legal Institute were specialguests.~

"CHrISTIanLawyershave uniqueresponsibilitiesand opportunities

CHRISTIAN LEGAL SOCIETYP.O. Box 2069Oak Park, Illinois 60303(312) 848-6335State Chairman: Jay Dickey, Jr., P.O. Box 6038. 208 EastFifth Street, Pine Btuff, Arkansas 71601, 501/534-6302

14/Arkansas Lawyer/January 1981

•

by Rupert A. Stuart

SUGGESTED TACTICS IN CLIENT

REPRESENTATION BEFOREINTERNAL REVENUE SERVICE

•

Since I left the Internal RevenueService, having been a revenue agent,I have had some 30 years of exper­ience in representing taxpayers in deal­ings with this agency of the federalgovernment. And, incidentally, withsome exceptions I have found the per­sonnel of Internal Revenue Serviceexcellent. However, it must be remem­bered that these people are employeesof the federal government and neces­sarily their position is not impartial. Ifwe consider the situation like a tennismatch with both sides out to win, andthe decorum at most times good; then, Ithink we have the picture.

Let us assume that a federal indi­vidual income tax return has been filedand now the revenue agent is conduct­ing a field audit or examination of suchreturn. We are to represent the tax­payer to his best interest, but we arenot to use unfair tactics or participate toany extent in fraud. Following I shalloutline several possible situations andrecommended handling:

At the outset it is usually recom­mended by all competent tax advisorsthat in routine examinations, whenfraud is not at issue, we should becourteous and cooperative with theagent. Yes, I agree. But, we should notoverdo this. To appear too agreeableand friendly may very well cause therevenue agent to become suspiciousnot only of the taxpayer but of hisrepresentative. It is better to observethe conventional niceties but yet ap­pear confident and wide open and toarrange conferences, etc., to the con­venience of all concerned-not just forthe convenience of the government.

And, during the course of the rev­enue agent's examination, supply himwith records requested but don't standover him while he works. Allow himleeway and leave him alone. Answerproper questions but don't volunteer in­formation.

Usually after the revenue agent hascompleted his examination he will wantto discuss the case. In most instances itis best for the discussion to be betweenthe revenue agent and the taxpayer's

representative without the taxpayerbeing present. Listen at this point anddetermine just what the revenue agenthas in mind.

FIRST SITUATIONThe revenue agent has found sev­

eral items that are obviously in favor ofthe government and he wants agree­ment on same. It would be utterly im­possible to win these issues at anysubsequent review or conference.What to do? Agree, of course. Therewould be nothing to gain by attemptingto bargain or do otherwise. It is cer­tainly not in order to cause the govern­ment unnecessary expense and in­convenience or to charge a client anadditional fee for fighting a "deadhorse" case. Moreover, it is not goodfor a tax advisor to acquire the reputa­tion of fighting all proposals and con­stantly taking worthless cases up tohigher authority. If we don't agree atthis point-when the revenue agent isright, yet ready to settle and close thecase-he is antagonized, and quitenaturally so. He may very well continuethe audit and of importance to note isthat possibly he may raise other issuesto the detriment of the taxpayer. Sincehe is not to have an agreed case, whyshouldn't he build up a bigger case forhis record?

SECOND SITUATIONSecondly, let us consider the situa­

tion when two controversial issues areraised by the revenue agent, for exam­ple: (a) disallowance of loss on showhorse operation, the revenue agent tak­ing the position that it was a hobby lossand hence not deductible; and (b) disal­lowance of family partnership-the re­venue agent claiming that it was not avalid partnership for federal income taxpurposes. During the discussion therevenue agent indicates that he is moredetermined to disallow (a) than (b). Itdevelops that on the basis of an agreedcase he will only disallow (a) and willrecognize the family partnership asbeing valid. (Let us assume that thetaxpayer can at this time conveniently

Rupert A. Stuart is a member of theLouisiana and Arkansas Bars. He re­ceived his B.B.A. at the University ofTexas, and his L.L.B. at Loyola Univer­sity, New Orleans. He practiced inNew Orleans prior to returning toArkansas, his native State, about eightyears ago. As indicated in his article,he was an IRS revenue agent and nowpractices in Fayetteville, Arkansas.

pay the deficiency and interest.) Thetaxpayer's representative firmly be­lieves that neither (a) nor (b) should bedisallowed by the revenue agent.However, it is not certain that the tax­payer would win either or both issues ina federal court. The choices?

(a) Sign agreement form with the re­venue agent and pay the deficiencyand interest resulting from disallow­ance of the "hobby" loss. The right tofile claim for refund would be preservedsince the agreement form signed withthe revenue agent would permit thisprocedure.

(b) Do not sign agreement form andin all probability be prepared to fightboth issues, that is, issues (a) and (b)and possibly other issues. The defi­ciency and interest would not have tobe paid at this time and the taxpayerwould have the opportunity to presenthis arguments to higher authority; if un­successful in administrative hearingshe could take his case to the UnitedStates Tax Court.

While decisions of this nature are dif­ficult to make-there being various fac­tors involved and pros and cons of thisprocedure or that-I would, under thehypotheticar example presentedabove, decide to "agree" with the re­venue agent and accordingly signagreement form.

My reasoning is as follows: by sign­ing agreement form with the revenue

continued on page 16

January 1981/Arkansas Lawyer/15

Internal Revenue Service,continued from page 15

agent, and assuming the settlement issubsequently approved by the InternalRevenue Service, we would have wonone issue and temporarily lost theother. The type of agreement formsubmitted by the revenue agent doesnot preclude the right to file a claim forrefund (with reference to deficiencyand interest pertaining to the disallow­ance of the"hobby" loss). This shouldnot be done too soon; it would be betterto wait until just before the income taxreturn involved prescribes by law. Theprescriptive period is three years fromdale of filing. For example, if a 1979return is involved, and if such returnwas filed on or before April 15, 1980,we would have until April 15, 1983, tofile the claim for refund. This could bedone a few days before April 15, 1983,and the taxpayer's claim would be pro­tected. Moreover, the chances are thatthe Internal Revenue Service wouldnot audit the claim until after April 15,1983, that is, after the prescriptiveperiod had run. The advantage to tax­payer: Internal Revenue Service can­not do more than reject the claim oroffset same but cannot set up addi­tional tax except in case of fraud orsubstantial understatement of grossincome. Incidentally in filing claims forrefund with the Internal Revenue Ser­vice a safe procedure to follow (sincethere are instances when claims arelost in the mails or inadvertently mis­placed) is to type a letter (in duplicate)enclosing the claim and identifyingsame and requesting Internal RevenueService to receipt one copy of the letter.This the Internal Revenue Service willdo and the claim (with letter, in dupli­cate, attached) should be mailed.

After the claim is properly filed at alater date the Internal Revenue Servicewill investigate same and will eitherallow or disallow same. Under the cir­cumstances presented here the claimwill probably be disallowed. The file willthen be sent to the appellate divisionfor consideration. In the appellate divi­sion will be found well trained and mostcapable men who have more leewayand authority to settle cases than therevenue agent or his group supervisor.(Of course, many of the appellate divi­sion men were formerly revenueagents who were promoted after yearsof experience.) After the file is receivedby the appellate division the taxpayerand/or his representative will have anopportunity for a hearing with a con­feree of the appellate division.l6/Arkansas Lawyer/January 1981

Also a written protest (and the care­ful preparation of same, as discussedbelow, is very important) shall be filedbefore the conference. In the protest allpertinent facts, citation of rulings, juris­prudence, etc., and taxpayer's argu­ments should be presented. All dataincorporated in the protest should be inverified form. If success is had with theappellate division, then the matter isended. If not successful there, the tax­payer's next step would be the filing ofsuit at the proper time in the UnitedStates District Court or Court of Claimsfor refund of deficiency and interest.Someone might contend that it wouldhave been better to have followed theother procedure, discussed above, indealing with the revenue agent. Ifagreement form had not been signedwith the revenue agent the case wouldhave been referred eventually to theappellate division for consideration.The proposed deficiency and interestwould not have had to be paid until finaldisposition of the case. Assume thisother procedure was followed and thatin the appellate division the taxpayer isfighting both issues, namely, "hobby"loss and family partnership. (Also,remember that the appellate divisionmay raise other issues not previouslyraised.) Of course, if success isachieved on all issues at the appellatedivision everything would be fine. But,what if the taxpayer is only partiallysuccessful? Can he sign agreementform on that basis and take the otherissue(s) to court? (The United StatesTax Court is the court of jurisdictionbefore the deficiency and/or interest ispaid.) No, he cannot, since the usualagreement form signed with the appel­late division precludes the right of sub­sequent filing of claim for refund. Theagreement form signed with the re­venue agent, on the other hand, pre­serves this right of filing claim for re­fund. Therefore, under the circum­stances, and for the reasons expres­sed above, I recommend reachingagreement with the revenue agent.

THIRD SITUATIONLet us now assume another hypo­

thetical situation. The revenue agenthas completed his examination anddiscussion is in order. It develops thatthere are some minor adjustmentsagainst the taxpayer which shouldproperly be made. One other issue,that of entertainment and travel ex­penses, he also proposes to disallow.These expenses are fairly high. Thetaxpayer's representative strongly be-

Iieves that the taxpayer should be enti­tled to the deduction.

Recommended procedure: tenta­tively agree to the minor adjustmentswhich are in order and try to persuadethe revenue agent to allow the enter­tainment and travel expenses. (How­ever, on items like entertainment andtravel expenses, the revenue agent, Ifhe has any doubt at all will probably notbe persuaded.) Advise the revenueagent of your contentions with refer­ence to this deduction and that In faIr­ness to your client you cannot agree tohis (the revenue agent's) proposal todisallow the deduction. If the revenueagent is still adamant, then request himto send in his report. Upon receipt ofthe 30 day letter I'd made written re­quest for a conference at the AppealsOffice or Appellate Division. And, Iwould not recommend partial agree­ment (to save interest). At the Appeaisoffice there will be more to "give andtake" with all issues open.

The procedure at the hearing is in­formal although the protest (which issubmitted before) is more formal. Theimportance of careful and thoroughpreparation of the written protest can­not be over emphasized. Here is thekey to the whole thing. If the taxpayerhas a good case it must be properlypresented. This is the opportunity toclearly and accurately set forth thefacts.(Often revenue agents' reportsare sketchy and poorly prepared, andthis is to the taxpayers' advantage.)

In presenting the facts I have foundthe question and answer method use­ful, for example, in a situation likereasonableness of an executive's sal­ary. To get the facts over, askquestions-think of the most embar­rassing questions, even questions ap­parently against interest, questions thetoughest examiner could ask-andthen answer such questions clearly,concisely and definitely to the point.

To enhance the effectiveness of thequestion and answer technique, I placea vertical line in the center of the page.On the left side are the questions; onthe right side, directly opposite, are therelated answers. This type of presenta­tion is impressive and presents the fac­tual situation in a vivid. convincing andsuccinct manner.

Some illustrative questions in thereasonable salary case could be:

Q. How much time did you spendeach week at the Country Clubplaying golf?

A. I usually played on Saturday orSunday afternoons.

•

by Marvin L. Kieffer

PRO'S AND CON'SQ. At your office about how manyhours each working day weredevoted by you to responsiblework?

A. About 8, sometimes 10 or 12hours each day, five days eachweek.

In the protest, other presentations,such as photographs, (e.g., to dramati­cally portray the condition of stormdamaged property), graphs to illustrate(e.g. net earnings of a business over aperiod of years) and charts in other fac­tual presentations, may be used.

If properly handled these techniquescan be very effective. Moreover, itmakes easier and more stimulatingmaterial for the appellate division toread.

Substantiate the facts when possibleby attachment of pertinent affidavits,documents, etc. Most appellate divi­sion conferees are reasonable and ifthe taxpayer is right and proves he isright there is excellent opportunity forsuccess.

In addition to establishing the facts,the protest should reflect pertinentregulations, rulings, court cases, andfinally the taxpayer's arguments. Don'tbe verbose; instead the statementsshould be concise and entirely rele­vant. Of course, after all this carefulpreparation the taxpayer may lose or,at best, secure a compromise settle­ment with the appellate division. In anyevent, if satisfactory settlement is notreached, the taxpayer has the choice ofpaying the deficiency and interest ortaking his case to the United States TaxCourt. To do the latter would of coursenecessitate the filing of a petition withthe Tax Court. However, after filing ofthe petition, settlement and/or com­promise is still possible before actuallygoing to court. A joint conference maybe arranged with a representative fromthe appellate division and with a repre­sentative from the regional counsel'soffice, who would try the case in theTax Court. On occasion, the represen­tative from the regional counsel's of­fice, after reviewing the file and readingthe taxpayer's well prepared protestwill decide that the taxpayer may beright. After further discussion, betweenthe representative from the appellatedivision and the representative fromthe regional counsel's office, perhapsin private, the taxpayer may find thatthe case is to be settled to his advan­tage without going to court. 1.....

I have reviewed the manuscript of"Suggested Tactics In Client Repre­sentation Before Internal RevenueService", submitted by Attorney RupertA. Stuart of Fayetteville, for publicationin The Arkansas lawyer. I, like Mr.Stuart, am a former Internal RevenueAgent, and have some twenty yearsexperience in representing taxpayers. Ithink the article raises some good prac­tical problems and suggested solutionsin dealing with the Internal RevenueService. I am not sure I can agree withMr. Stewart's conclusion, that "withsome exceptions I have found the per­sonnel of Internal Revenue Serviceexcellent."

My experience is that the InternalRevenue Service does have somegood and well-trained agents. It alsohas a good number of ambitious andintelligent agents, who are not well­trained; and who, for the most part,cause the taxpayers distress and ex­pense in raising issues for bargainingpurposes; such as, Mr. Stuart indicatesin situations two and three in his manu­script. From my experience, althoughthere may be some difference in de­gree, the lack of training is not peculiarto anyone Internal Revenue District orRegion.

However, maybe, we involved in thetax practice of law should not beemphasiZing this observation, be­cause it is this group of not so well­trained agents who are responsible forand generate a good portion of our taxpractice.

Mr. Stuart pcints out in his first situa­tion that, in the event you do not agreewith an agent who has raised real is­sues, he might, as a result of beingantagonized, continue his audit andpcssibly raise other issues. This is apossibility; but, I think by the time thispoint is reached, the taxpayer's repre­sentative should have familiarizedhimsell with his client's situation wellenough to know his exposure to addi­tional tax and be enough in control ofthe situation to prevent the agent fromcontinuing his audit as a matter ofintimidation, because of his antag­onism.

I agree, as Mr. Stuart suggests, itwould be better to agree in his first situ-

ation. I realize Mr. Stuart, in his situa­tion Two, is presenting possible solu­tions. While I cannot disagree, Ipersonally would, as he suggestssome might, follow a different pro­cedure for the following reasons:

I would follow his rec­ommendation of AdministrativeProcedure for his third solutionthrough the Appellate Confer­ence. Then if the matters werenot resolved, perhaps follow hissuggested procedure of recom­mending that my client pay thetax and later file a claim for re­fund, rather than taking the mat­ter to Tax Court.

The procedure is one ofstrategy in handling such a situa­tion. If I were only going to do itone time, maybe I would followhis suggested procedure.

It has been my observationthat, generally, when you startagreeing with agents on pro­posed adjustments, which youfirmly believe should not bemade, you are paving the way forsimilar proposals in connectionwith future audits, and making ittoo easy for the Internal Revenueagent and the District Office.

The Appellate Conferees havemore freedom in resolving is­sues. It has been my experiencethat the chances are pretty goodof their not sustaining the examin­ing agent on questionable issues.

Further, it was my feeling sometime ago the examining agentshad flooded the Appellate Con­ferees in some regions with somany non-agreed cases, as Mr.Stuart points out in his secondsituation, that they had such aback log of non-agreed auditcases, they were looking for reliefthrough the District Office AuditDivision.

I am one to help load them up ifthat is what it takes to help correctthe situation. 1.....

January 1981!Arkansas Lawyer!l?

By: Carol UtleyPublications Assistant

OYEZ · OYEZ ,,••

BENTLEY STORY president and STEVE ROUTON secre­tary-treasurer.

NICHOLAS PATTON was recently inducted into Fellow­ship in the American College of Trial Lawyers. Patton is withthe firm of Young, Patton & Folsom in Texarkana. Alsoinducted were PHILLIP CARROLL, President of the Arkan­sas Bar Association and DAVID SOLOMON of Helena. Allthree were inducted at a ceremony during the Fellows an­nual banquet held during the American Bar Association'sannual meeting in Honolulu, Hawaii, this summer.

JAMES M. GARY, 1980 graduate of the University ofArkansas School of Law at Fayetteville, has joined the firmof Eilbott, Smith, Eilbott, & Humphries in Pine Bluff.

TERRY R. KIRKPATRICK, of Fayetteville, announcesthe opening of her law office at 28 South College for thegeneral practice of law.

ROBERT SHULTS and THOMAS RAY formerly practic­ing law under the name LESTER AND SHULTS, announcethe firm name has been changed to SHULTS AND RAY andH. BAKER KURRUS has joined the firm.

G. ROSS SMITH announces the opening of his law officeat Ste. 1215, Tower Building in Little Rock.

DAVIDSON, PLASTIRAS, HORNE, HOLLINGSWORTH& ARNOLD announce that THOMAS S. STONE, MICHAELO. PARKER and MARK W. GROBMYER have becomeprincipals in the firm and also that JUDY P. McNEIL hasbecome associated with the firm. Their office is located inthe National Investors Life building in Little Rock.

PHIL KAPLAN, Little Rock attorney, was guest speakerat a meeting of the Jacksonville Kiwanis Club on July 15th.Mr. Kaplan spoke to the group about Jewish tradition andceremony.

CATHEY, GOODWIN, HAMILTON & MOORE in Para­gould, announce that JOHN L. ALLEN has become asso­ciated with the firm. Allen is a graduate of the University ofArkansas School of Law in Little Rock.

JAMES L. MOORE, III has become associated with thefirm of BRIDGES, YOUNG, MATTHEWS, HOLMES &DRAKE in Pine Bluff.

JOHN ACHOR, former public defender for Pulaski andPerry counties, has joined the Little Rock law firm of Haskinsand Wilson.

CHRISTOPHER B. T. (KIT) WILLIAMS of FayetteVille,has joined the law firm of Bumpass and Brandt.

WILLIAM S. MEEKS, has joined the law firm of Arnold,Hamilton, and Streetman of Hamburg and Crossett. Mr.Meeks received his law degree in May from the University ofArkansas School of Law.

Dean ROBERT K. WALSH of the University of ArkansasSchool of Law in Little Rock, announces that DR. MORRISSHEPPARD (BUZZ) ARNOLD, a native of Texarkana, willbe a visiting professor of law for the spring semester at Little

Attorney JOHN PATTERSON of Searcy, took first placehonors in the 1980 State Match Play Championship lastAugust. The tournament, held at Maumelle, is Arkansas'most prestigious golfing competition. Patterson was an AII­AIC golfer for three years before his graduation from HendrixCollege in 1975.

FRED M. PICKENS, JR. of the law firm of Pickens, Boyce,McLarty & Watson, Newport, has been elected recently tothe American College of Probate Counsel. The College is aninternational association of lawyers organized for purposesof modernizing and improving probate practices throughoutthe United States.

F. WILSON BYNUM, JR. has announced the opening of alaw office at 402 East Fifth Avenue, Ste. 102, Pine Bluff. Heis a graduate of the University of Arkansas School of Law inFayetteville. Formerly, he was house counsel and salesmanager for Standard Brake Shoe and Foundry.

The law firm of Clark & Miller, LTD., has recently beenpurchased by Mount Ida attorney BILL McKIMM. McKimmjoined the law firm in September of 1979 and has been theirrepresentative in Mount Ida.

WILSON P. DOUGHERTY has left the firm of Wilson,Dougherty & McNee and is now General Counsel for SaversFederal Savings & Loan Association in Little Rock. KEITHVAUGHAN has joined the firm that is now known as Wilson,McNee & Vaughan, P.A..

DEAN DAVID EPSTEIN of the University of ArkansasSchool of Law addressed a meeting of the Union County BarAssociation on July 10th. The purpose of Dean Epstein'svisit was to familiarize the practitioner with the school's effortto combine academics with experience in practice. DAY·TON G. WILEY, of Wiley, Garwood, Hornbuckle, Higdon &Johnson announces the relocation of his office to 201 High­point Executive Plaza, 1603 Babcock Road, San Antonio,Texas.

JAMES H. McKENZIE of Prescott, has been elected to atwo year term on the State Committee of the Association ofTrial Lawyers of America. He joins TROY L. HENRY ofJonesboro as one of two Arkansas attorneys representingthe state association on the ATLA State Committee. Theorganization has more than 40,000 members and is thelargest in the nation.

CHARLES DARWIN DAVIDSON announces thatMICHAEL R. RAINWATER and JAMES M. HOLLIS havejoined the firm in Little Rock.

CHINULA AND WALKER, P.A., announces that the firmname has been changed to WOODSON WALKER ASSO­CIATES, P.A., and the association of two new lawyers.ARTHUR J. KERNS, 1980 graduate of the UALR School ofLaw, and MORRIS W. THOMPSON, 1980 graduate ofCreighton University in Omaha.

The Saint Francis County Bar Association has electedl8/Arkansas Lawyer/January 1981

r

Rock. Dr. Arnold will teach courses in property and legalhistory. He is the brother of federal Judge RICHARD S.ARNOLD of the United States Eighth Circuit Court of Appe­als.

.ROBERT GUISE BRIDEWELL recently became licensedwith the state Supreme Court. He is a 1980 graduate of the Uof A School of Law in Fayetteville. Bridewell is presentlyassociated with the firm of Hollaway and Haddock in LakeVillage.

MICHAEL MEDLOCK announces the opening of his lawoffice at 110 1/2 South Third Street in Ozark. Medlock is agraduate of the U of A School of Law.

MACOM, MOORHEAD & GREEN announce that DAVIDG. HENRY has recently become a partner in the firm to beknown as MACOM, MOORHEAD, GREEN, AND HENRY inStuttgart.

Little Rock Mayor and lawyer WEBB HUBBELL has an­nounced the resignation of his partnership in the Rose,Nash, Wllhamson, Clay and Giroir law firm. Mayor Hubbell isstili. associated with the firm in an "at counsel" position. Heattributes his time-consuming duties as mayor as the reasonfor his resignation.

L. ASHLEY HIGGINS, formerly of Little Rock, has be­come associated with the law firm of Charles B. Roscopf inHelena. Prior to attending law school, Higgins was a news­man With The Associated Press in New York and Chicago.He has also worked for the Arkansas Democrat and Arkan­sas Gazette.

The law firm of LIGHTLE, BEEBE, RANEY, and BELL inSearcy, held an open house to acquaint guests with theirnew office facilities.

DANNY K. SCHIEFFLER has joined the law firm ofSchieffler and Yates in West Helena. He is a 1980 honorgraduate of the Uof A Law School in Fayetteville. During lawschool, Schleffler served as Associate Editor for The Arkan­sas Law Review and also worked as a legal intern for theWashington County Prosecuting Attorney.

The Clark County Bar Association met in July and electedHERMAN HANKINS, JR. president and DONALD P.CHANEY, JR., secretary. A library committee, includingDONALD CHANEY, WILLIAM G. WRIGHT and STEVEDEMOTT, will supervise and maintain operations of thelibrary.

MARK CAMBIANO has returned to his home town ofMorrilton to practice law with BILL CREE and JOE CAM­BIANO. Cambiano is a graduate of the U of A Law School inLittle Rock. He became licensed in February 1980. While inlaw school, Cambiano worked in the office of John Walker aLittle Rock attorney. '

JOHN THOMAS is in private law practice at 114 WestMain Street in Gurdon. Thomas was admitted to the Bar onSeptember 8th.

Also admitted in September was PAUL DEWITT GOR­DON of Little. Rock. He is chief law clerk for Judge ErnieWright, chief Justice of the Court of Appeals in Arkansas.

Danville native, JUDGE ROBERT HAYS WILLIAMS willbe inducted into the school's Hall of Distinction prior t~ theHomecoming game at Arkansas Tech in October. JUdgeWilhams IS a graduate of George Washington University inWashington. He is a former prosecuting attorney and statesenator.

JOE MORPHEW, formerly of Little Rock, and PHILLIP G.SMITH of Corning, have established the law firm of Smithand Morphew at 308 South Washington in Corning.

continued on page 28

Presidents Reportcontinued from page 2Texas. Only 25.3% of the voters stated that they had heardof the controversy: and only 14.2"/0 could name Yarbroughas the candidate Involved. 8.9% could identity the TexasSupreme Court as the judicial office he was running for. TheReport tells me that the electorate often lacks sufficientinformation to make an elective judicial selection systemfunction properly. The Bar must share the blame. I favor apoll that will enable lawyers to express themselves meaning­fUlly If they have had an opportunity to form a reliable opinionconcerning the qualifications of a judicial candidate whoappears on any form of ballot. This would be a publishedpoll. The existing poll (the results of which are not madepublic by the Bar) which is designed to help judges assessthe Impressions they are making on lawyers in various areasof activity should continue.

LAWYER ADVERTISINGAs I write this column, the yellow pages of the telephone

book are about to go to press. What eye-catching gimmicksWill the lawyers use this time to assure that they will bepicked when disaster strikes? Will lawyers be pictured asknights on white horses using law books as shields andhurling words of wisdom at cringing oppressors? Little gui­dance as to what is ethical is available in the Arkansasversion of the Code of Professional Responsibility, 33 Ark. L.Rev. 605 (1980). Neither is there much guidance in theSupreme Court's opinion of November 26, 1979 rejectingthe Arkansas Bar Association's specialization designationplan. The court said that the Code "permits lawyers to pub­lish information about the areas in which they practice, with acorresponding implication of expertise." Specifically, DR2­101 (B) (2) says that a lawyer may publish "one or morefields of law in which the lawyer or law firm practices or astatement that the lawyer or law firm specializes in a particu­lar field of law practice, to the extent authorized under DR2­105." (Emphasis added) The emphasized "or" creates aninteresting ambiguity. Do the words, "to the extent auth­orized under DR2-1 05" modify both clauses on either side ofthe 'or'? Probably it was intended that the right to publish oneor more fields of law in which the lawyer or law firm practicesis not limited by DR2-105. But, DR2-105 clearly says that alawyer "shall not hold himself out publically as a specialist oras limiting his practice." There is an exception that is limitedto patent lawyers, at least for the present, since the SupremeCourt has not promulgated a rule for the certification of otherspecialists. One could logically conclude then that it is pro­per to hst In the yellow pages several fields in which a lawyerpractices, but he must not proclaim publically that he limitshis practice to those fields. Query: If a lawyer advertises onlyone field (which he IS expressly authorized to do by DR2­101 (B) (2), is he implying that he is a specialist or that helimits his practice to that field? What's wrong with a lawyerstating that he hmlts hiS practice to one or more fields if thathappens to be the truth? Why shouldn't a lawyer be allowedto advertise in the yellow pages that he practices only laborlaw, or domestic relations, or personal injury cases, or all ofthe above? Surely, the First Amendment ought to havesome applicability here. Some lawyers might like to adver­tise the kinds of cases they don't take! Anyway, a thoughtfuland undaunted committee of your Bar Association is work­ing on a solution to the problem. Until then, consult theyellow pages of your phonebook. '"

January 1981/Arkansas Lawyer/19

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

11"Jlemortam

They that deal truly are His delight.Proverbs 12:22

LOUIS TARLOWSKILouis Tarlowski, 79, of Quapaw Tower, a prominent Ar­

kansas attorney, died Sunday, July 20, 1980.Mr. Tarlowski drafted the first sales tax law in Arkansas,

and at one time, served as a judge in the 6th Judicial District.He was named president of the National Motor CarrierLawyers Association in 1957. The organization was com­posed of 300 lawyers from 40 states. The associationspecialized in representing motor carriers before the Inter­state Commerce Commission. He was also a member of theState Board of Law Examiners for 20 years and was amember and chairman of the Little Rock Zoning Commis­sion.

He was a member of the B'nai Brith Temple and a 32nddegree Mason. He was a member of the American BarAssociation, Arkansas Bar Association, Pulaski County BarAssociation, International Association of Insurance Coun­sel, and the Interstate Commerce Commission PractitionersAssociation.

FREDERIC KESSLER SPIESFrederic Kessler Spies, 54, professor at the University of

Arkansas School of Law and the U of A Medical SciencesCampus, died Monday, August 4, 1980.

A native of Pennsylvania, Mr. Spies had been associatedwith the two schools since 1976. He was a specialist onissues affecting law and medicine and was the first Arkan­san to be named a fellow in the 2,500-member Academy ofForensic Sciences. He also served a two year term on theAcademy's Executive Committee.

Mr. Spies was formerly a professor of law althe U of A LawSchool in Fayetteville from 1959-1976. He was an assistantprofessor of law and law librarian at the Dickinson School ofLaw at Carlisle, Pa., where he received his law degree in1952, for four years before moving to Arkansas. He earnedhis master's of law degree from the New York UniversitySchool of Law in 1956.

Mr. Spies was associated with the private law firm ofSpeicher and Austin at Reading, Pa., from 1952 to 1956,and as counsel with the Putnam and Bassett firm at Fayet­teville from 1961 to 1976. During this time, Mr. Spies re­ceived many honors, including the Arkansas Bar Associa­tion Special Award for Meritorious Service and the U of AAlumni Association Distinguished Achievement Award forTeaching and Research.

He was a member of the Association of American LawSchools, the Association of American Medical Colleges, theArkansas Bar Association and had served on the ArkansasSupreme Court Committee on Model Jury Instructions, theAmerican Association of University Professors and theAmerican College of Legal Medicine. He was also secretaryand chairman of the Jurisprudence Section of the AmericanAcademy of Forensic Sciences.20/Arkansas Lawyer/January 1981

Survivors are his wife, Mrs. Patricia McCoy Spies; twosons, Dr. Frederic Spies, Jr. and Stephen C. Spies of LittleRock, and a daughter, Mrs. Lisa Marie Swinford of Jackson,Missouri.

JAMES VICTOR SPENCER, JR.James Victor Spencer, Jr., 50, of 1200 West Seventh

Street, EI Dorado, died Monday, August 18, 1980, after abrief illness.

He was born February 27, 1920, in Strong, and was alife-long resident of Union County and a member of an earlypioneer family. Mr. Spencer graduated from EI Dorado HighSchool in 1937, received a bachelor of arts degree from theUniversity of Arkansas in 1941 and a Juris Doctorate degreein 1946. He served in the U.S. Navy from 1941-46 as alieutenant in the Pacific theatre and joined his father's lawfirm in 1946 where he was currently president of Spencer,Spencer and Spencer, P.A.

Mr. Spencer served as deputy prosecuting attorney ofUnion County from 1946-48 and as EI Dorado City Attorneyfrom 1959-70. He was past president of the Junior Chamberof Commerce, EI Dorado Lions Club, and the Union CountyBar Association. He served as director of the SalvationArmy, EI Dorado Teen Age Club, and the EI DoradoCampfire Girls Board and the EI Dorado Chamber of Com­merce. He was a member of the Exchange Bank Board ofDirectors and the Exchange Petroleum Company board. Hewas a member of the Union County, Arkansas, and Ameri­can Bar Associations.

Survivors include his wife, Mrs. Mary Strawn Spencer ofEI Dorado; two sons, James Victor Spencer III of EI Doradoand Frederick Strawn Spencer of Mountain Home; twodaughters, Mrs. Robert L. Deeper, Jr., of Fayetteville andMiss Margaret Spencer of EI Dorado; two sisters, Mrs. EarlA. Riley, Jr. and Mrs. Annie Laurie Spencer, both of EIDorado.

JOHN R. THOMPSONJohn R. Thompson, 77, former member of the state Public

Service Commission and former state welfare commis­sioner, died Saturday, July 19, 1980.

He had been assistant attorney general at Little Rock from1937-1939. In 1939, he served as welfare commissioner.From 1940 through 1949, he resumed his private law prac­tice until his appointment to the Public Service Commissionin 1952. He became general counsel for the ArkansasHighway Department in 1966 and served in that capacity forone year.

He founded the law firm ofThompson, O'Bryan and Martinat Cabot and practiced law in all state and federal courts inArkansas. Mr. Thompson was a member of the Board ofTrustees of the Baptist Medical Center and was a formermember of the Board of First Baptist Church at Little Rock.He was a member of the Baugh Chapel Baptist Church atAustin, Arkansas, where he was a lay speaker and a deaconin the church. Mr. Thompson was a Mason and a Shriner.

Survivors are his wife, Mrs. Marie Beasley Thompson ofCabot; a son, Edgar Ross Thompson of Austin; twobrothers, Sam Thompson of Austin and Cecil Thompson ofLonoke, and three grandchildren.

CLYDE BROWNClyde Brown, 70, retired lawyer and former Garland

County Circuit Judge, died Monday, August 11, 1980, in aHot Springs hospital.

He was born July 22,1910, in Hawes, Ark., and in 1935 hereceived his law degree from the University of ArkansasSchool of Law. He was also graduated from the Commandand General Staff School at Fort Leavenworth, Kansas. In

addition to his practice of law, Judge Brown served as CircuitJudge in Arkansas from 1946 to 1950.

Mr. Brown was a member of Sigma Alpha Epsilon,Masonic Order, Tri-Eta, Scabbard and Blade, Benevolentand Protective Order of Elks, and also held a membership inthe Pershing Rifles, Eagles, Lions, National Rifle Associa­tion, Reserve Officers Association, the Garland County, Ar­kansas, and American Bar Associations.

Mr. Brown is survived by a nephew, Mark Palmer of HotSprings.

JOHN STATESMunicipal Judge John States, 77, of 1510 South Main,

Jonesboro, died August 26, 1980. He was a native of Morril­ton and has served as municipal jUdge since January of1971.

He was a graduate of Jonesboro High School and at­tended Hendrix College and the University of Arkansas be­fore obtaining his law degree from Cumberland College ofTennessee at Lebanon.

Mr. States taught school and coached basketball at Big­gers, and served as principal at Brookland High School. Hebegan his law practice at Jonesboro in 1933. He rep­resented Craighead County for 10 years in the state legisla­ture and served as deputy prosecutor under the late BruceIvy for four years.

He served as state grand commander of the KnightsTemplar of Arkansas in 1955 and was district deputy grandmaster of the Grand Lodge of Arkansas in 1940 and 1941.Mr. States was on the Board of Directors of the Cottage ofHope in the organization's early years and was a member ofthe County Board of Education for 15 years. He was amember of SI. Mark's Episcopal Church.

Survivors include his wife, Hazel States of the home; onedaughter, Mrs. Susan Streeper of Santa Fe, N.M.; one sis­ter, Mrs. Mary Thielman of Jonesboro; and three grandchil­dren.

ROBERT CHEATHAM DOWNIERobert Cheatham Downie, 63, of Little Rock, died Mon­

day, September 22, 1980. He served on the state PublicService Commission under four govemors and twice aschairman of the Commission.

Mr. Downie was a member of a prominent Little Rockfamily of lawyers, including his father, the late Edward B.Downie, and his late brothers, Edward Blake Downie, Jr.and Thomas B. Downie, a former Pulaski County prosecut­ing attorney.

He attended the Little Rock public schools, ColumbiaMilitary Academy, Davidson College at Davidson, N.C., andthe University of Arkansas Law SChool at Fayetteville wherehe received his Juris Doctorate. He served five years in theArmy Air Corps dUring World War II with two of those spentas a pilot with the 168th Fighter Bomber Group in NorthAfrica.

Mr. Downie was president of the Pulaski County Chapterof the Arkansas Association for the Crippled in 1966. Twoyears later he became president of the Easter Seals Societyfor Crippled Children and Adults of Arkansas. He was amember of the Westover Hills Presby1erian Church.

Survivors include a son, Robert C. Downie, Jr., and adaughter, Margaret Downie, both of Little Rock; three sis­ters, Mrs. James Carvell of Little Rock, Mrs. George Talbotof Pine Bluff, and Mrs. James E. Brown of Mobile, Ala.

Memorial services were held September 23rd by the Rev.Richard Hardie at the Roselawn cemetary.

WILLIAM H. PATTERSON, JR.William H. Patterson, Jr., aged 41, of Maumelle, a deputy

public defender in the Pulaski County public defender'soffice, died Saturday, June 28, 1980.

A native of Searcy, Mr. Patterson graduated from LittleRock Central High School. He received his bachelors de­gree from Ouachita Baptist University at Arkadelphia andthe University of Mississippi. He was a graduate of theUniversity of Arkansas School of Law at Little Rock and wasa member of Pi Kappa Alpha.

He formerly had served as captain of Army intelligenceand had been chief of public relations and advertising for theArkansas Industrial Development Commission. He was amember of the Arkansas Bar Association, Pulaski CountyBar Association, the National Association of Criminal De­fense Lawyers and the Grace Presby1erian Church.

Mr. Patterson is survived by his parents, Mr. and Mrs.W. H. Patterson, Sr. of Little Rock, and a grandmother, Mrs.Nellie Lyle of Pine Bluff.

JOHN F. GIBSON, SR.State Senator John F. (Mutt) Gibson, Sr., aged 64, died

Thursday, April 17, 1980, at Dermott-Chicot Memorial Hos­pital after a lengthy illness.

Senator Gibson was a well-known trial and defense attor­ney who represented the 35th Senatorial District for the past14 years. He was born January 3, 1916 at Boydell, Arkansasto Charles Clifford Gibson and Maggie Bynum Gibson, andgraduated in the early 1930's from Dermott High School. Heattended Arkansas State Teachers College in Conway andthe University of Michigan at Ann Arbor. He graduated fromCumberland University in Lebanon, Tennessee.

Senator Gibson was admitted to practice in 1939 and waslater licensed to practice in the Federal District Courts in1946. Shortly after he was licensed, he became Dermott cityattorney and held the position until his death. He was electedProsecuting Attorney for the 10th Judicial District in 1947and re-elected in 1949 for a second term. In 1945 duringWorld War II, Senator Gibson was the assistant Judge Ad­vocate for the Eighth Service Command at Dallas, Texas.He was also Post Judge Advocate for Camp Robinson atLittle Rock in 1946.

Senator Gibson was first elected to the state Senate in1967. While in the Senate, he was a member of the Legisla­tive Council, vice-chairman of the Senate Standing Commit­tee on State Agencies, and was the ranking member of theSenate Judicial Committee. He ended his service in thelegislature as vice chairman of the Senate Judiciary Com­mittee and as a member of the Governmental Affairs Com­mittee.

Senator Gibson was a member of the First Baptist Churchof Dermott.

He is survived by his wife, Juanita Watkins Gibson; twosons, John Frank Gibson, Jr. and Charles Sidney Gibsonboth of Dermott; two brothers, Charles Clifford Gibson ofJerome and Robert Bynum Gibson of Dermott; and sevengrandchildren. I-...

CORRECTIONIn Memoriam, The Arkansas Lawyer, October

1980, carried an incorrect middle name in the obitu­ary of John Martin Lofton, Jr. The error, picked upfrom a related notice in a local newspaper, is regret­ted.

January 1981/Arkansas Lawyer/21

•SAFEGUARDING YOURPROFESSIONAL FUTURE

Editor's Comment:AEGIS is a feature 0; theArkansas Bar Associa­tion's educational pro­gram concerning dock­et control and otherareas of high risk exper­ience in professionalliability cases.

Depend on the rabbit's foot, if you will,but remember,

it didn't help the rabbit!

the problem An insured attorney, a specialist in property law, accepted acase involving a negligence suit against a hospital. Realizinghis limited experience in this field, he immediately engaged afirm of negligence attorneys as trial counsel.

The trial counsel repeatedly attempted to secure records fromthe hospital to determine if there had been professional medicalmalpractice. Due to an internal delay at the hospital, these rec­ords were not secured within the time limit in which a Notice ofClaim must be filed. Thus, any action which the claimants hadagainst the hospital was forever barred.

The claimants then retained a new counsel. Subsequent reviewof the hospital records by a medical expert retained by the newcounsel revealed that the hospital personnel had been negligent.

the result The case was settled with the major portion of settlement con­tributed by the trial counsel, whose negligence actually resultedin the claim. Additional contribution was also made by theinsurance company on behalf of the insured attorney. As thereferring attorney, he owed some responsibility to his clients tosee that their case was properly handled.

advice When cases are referred to a trial counsel, make certain thatyour cases receive proper attention. Keep yourself advised atall times of the status of your cases. Set up your own docketcontrol system for cases you refer to triel counsel.

22/Arkansas Lawyer/January 1981

ARKANSAS DOMESTICRELATIONS SYSTEM

A type-set 400 page system dealing with absolute divorce, divorce from bed and board, separate maintenance,and ancillary domestic relations actions, annulment, enforcement but also all of the areas of Congressionalimpingement on state law. This includes tax considerations, military divorces, bankruptcy, social security,federal enforcement procedures and Title IV-D procedures.

ORDER FORMARKANSAS DOMESTICRELATIONS SYSTEMMAILING CHARGE

• Non members of the Arkansas Bar Association add another $50.

NAME

ADDRESS

• $75.002.00

$77.00

SEND ORDER FORM AND CHECK TO ARKANSAS BAR ASSOCIATION400 WEST MARKHAM STREET, LITTLE ROCK, ARKANSAS 72201

ARKANSAS LAWYERS FOR YEARS HAVE BEEN "LOOKING" FOR A NEW PUBLICATION ONARKANSAS LEGAL FORMS. AS ONE OF THE MAJOR PROJECTS IN THE ARKANSAS BARASSOCIATION'S PROGRAM TO DEVELOP PRACTICE SYSTEMS FOR ITS MEMBERS, PRO­FESSOR ROBERT R. WRIGHT AGREED TO PREPARE THE ARKANSAS FORM BOOK. YOURSEARCH IS OVER-ORDER YOUR COPY NOW.

THE ARKANSASFORM BOOK

ORDER FORMTHE ARKANSAS FORM BOOKMAILING CHARGE

• Non members of the Arkansas Bar AssociaUon add another S5O.

'$75.002.00

$77.00

NAME _

ADDRESS

SEND ORDER FORM AND CHECK TO ARKANSAS BAR ASSOCIATION400 WEST MARKHAM STREET, LnrTLE ROCK, ARKANSAS 72201

January 1981/Arkansas Lawyer/23

CONTEXTBy W. Christopher Barrier

THE LANGUAGE OF THE TONG

In the 1980 edition of the Gridiron Show, an Arab sheikthreatens to cut off the left hands of all lawyers. Why? Tokeep them from constantly saying "But on the otherhand... '"

Lawyers do most of their relating to each other, theirclients, and to the world generally through the spoken andwritten word. Yet, they are continually criticized and carica­tured for abuse and misuse of the language, particularly inwriting.

In an attempt to determine if the caricatures were accu­rate, I polled experts in the classroom, on the bench and inpractice, and also a professional writing consultant. My in­quiries focused on six general areas:

1. Are lawyers poor writers?According to Chief Justice John A. Fogleman of the Ar­

kansas Supreme Court, "too many lawyers are poor writ­ers," but most "are average writers and some are excellent."Assistant Dean Ellen Bass Brantley of the UALR Law School(who had a good opportunity to observe lawyers as writersas a law clerk to U.S. District Judge Tom Eisele) thinkslawyers generally write much better than the population as awhole, primarily due to their superior education and theirexperience in using the written word.

However, according to Dean Brantley, they would not rateso well by any objective standard, simply because they arenot really taught how to write and write well. She is alsoinclined to believe the quality of legal writing has declinedsomewhat, perhaps because lawyers increasingly are usingthe telephone and other equipment in place of the writtenword.

Lee Clark Johns is a college English teacher who alsooperates a firm in Tulsa, Oklahoma, called CompendiumWriting Consultants. The consulting firm conducts seminarsfor business and other organizations to teach effective writ­ten communication. Ms. Johns notes that "lawyers arenotorious for their obfuscation", citing a tendency towardoveruse of jargon and the language generally. However,aside from these two major faults, she does not find thewriting of lawyers any worse than that of the public generally.

2. Are lawyers actually taught to write poorly? Accord­ing to Dean Brantley, a lawyer's experience may teach somepoor habits, especially overuse of forms, which frequently24/Arkansas Lawyer/January 1981

may not say just what the lawyer wants them to say. How­ever, the root of the problem, she believes, is that writingsimply is not taught to the degree necessary in law school,college, high school, or anywhere else. Judge Foglemanagrees.

3. Does dictation equipment encourage wordinessand sloppy organization? Bankruptcy Judge Charles W.Baker writes his opinions in longhand on a legal pad whilestanding at a lectern. He says the combination forces him tokeep his opinions brief and to the point. Similarly, I know ofone successful attorney who was occasionally withoutsteady secretarial help while a solo practitioner. A compe­tent typist, he produced much of his correspondence andpleadings by his own efforts. The pleadings especially weremodels of clarity and directness!

Judge Fogleman points out that proper use of dictatingequipment takes discipline and restraint, which may be nomore prevalent in lawyers than it is in the population as awhole. Dean Brantley agrees that it is not the use of theequipment itself which contributes to the problem, but themisuse of it. For example, she receives correspondencefrom lawyers which they obviously have not proofread and inwhich the punctuation and spelling were obviously not dic­tated at all.

4. Can secretaries help? Dean Brantley has little hope inthis regard, unless the secretary happens to have at least asgood a background in English as the lawyer, which JudgeFogleman points out is seldom the case. The Judge alsonotes that secretaries are seldom encouraged to participatein drafting in this way, and Ms. Johns doubts that manysecretaries can fight their way through the jargon muchbetter than clients and other readers.

Secretaries can help, but frequently the impulse is in theopposite direction-a secretary who moans when a docu­ment is submitted to her for revision is indirectly encouragingthe lawyer not to try to polish his writing, but to essentiallysend his rough drafts.

5. Are lawyers jargon-prone in their writing? To illus­trate the problem, Lee Johns relates an incident wherein sheasked a lawyer friend to recommend her as an editor of thenew Instructions to Civil Juries (the equivalent of our AMI) in

Oklahoma. The lawyer answered in mock horror, "TheTong, the Tong-don't let them know the language of theTong I" His reference was to a Chinese secret society with itsown ceremonies, customs and private language.

Whether part of a private language or not, many legalterms are simply the "language of the profession" accordingto Judge Fogleman, and are symbols for specific ideas,having precise meanings. As a review of the so-called "sim­ple English" documents produced by a number of lendinginstitutions will amply demonstrate, the result of refrainingfrom using specialized language is often a marked increasein the number of words required to express an idea.

However, Ms. Johns' point is that, when addressed to anon-legal audience, the terminology becomes "mystifyingand confusing." In other words, the lawyer simply fails tocommunicate. She also believes that, beyond jargon,lawyers simply use too many words, both out of habit andcustom. For example, there are repeated redundancies in anumber of legal documents, such as conveyances-"doeshereby bargain, sell, assign, set over", etc. Unless eachword has a different meaning, choosing one of them wouldprobably get the point across.

6. Are these problems which are simply common to allprofessionals and, for that matter, to everyone whomust use the written word on a daily basis? Probably so,says Judge Fogleman. Ms. Clark points out that she findsmany of the same problems with anyone who dictates,especially if they dictate to a central pool and never see thefinished product.

However, others believe lawyers have special problems.As chairman of the Arkansas Bar Foundation, John Gill ofLittle Rock sponsored a Scrivener's Symposium, to encour­age the improvement of legal writing. According to Gill, alarge problem is the way lawyers are taught to think. Theyare taught to thoroughly analyze problems according to theirown particular facts. Few legal statements are true in allinstances, hence, most of them must be qualified. It is thesequalifications which seem to drive non-lawyers (such as thesheik) to distraction.

For example, a lawyer's brief may be direct, forceful andclear, despite the use of legal terminology, when he is argu­ing a particular position. However, this sort of writing is readby judges and other lawyers, not the non-lawyers who arethe source of the majority of the criticism of legal writing.

Opinions from lawyers, however, are addressed to non­lawyers. The lawyer must cover his subject thoroughly, andbe precise. He must use legal terms with specific meanings.Saying "what he means" may mean saying great deal morethat the non-lawyer deems necessary and saying it in tech­nicallanguage. According to Gill, the problem then becomesinevitable for the lawyer, as opposed to the sales manager,bureaucrat, or house painter. The lawyer may generalize tosome degree, but if there are qualifications or expectations,he must make note of them (with or without his left hand).

Light at the end of the paragraph.Despite the problems, Lee Johns sees the legal profes·

sion as one of the few trying to do something about itsproblems. "The trend in law schools and in journals... istoward new clarity in legal writing... as evidenced by thewide-spread revision of jury instructions and changes instandard legal documents. . .. If the law schools do notperpetuate the language of 'the Tong', perhaps the habits ofolder attorneys and ultimately custom will change as well."

As John Gill has noted, there are no simple, overall solu­tions which are directly available to lawyers. We can or·ganize before dictating. We can proofread (or at least makesure a secretary who knows how to do it does so). We canreject the recommendations of some of the purveyors ofdictation equipment that we use it to dictate randomthoughts, which may later be shaped by lawyer and secret­ary into working documents-too often, the final documentlooks too much like the original jumble of random thoughts.

We cannot directly force colleges and high schools toemphasize further the proper use of the English language,but perhaps they can get the message from the law schools.

We can encourage our secretaries to think of the docu­ments we produce as joint projects, as to which each bears acertain responsibility. Additionally, we can use our sec­retaries to test our clarity of expression-if a secretary, whois used to legal terminology, cannot understand a particularopinion, the lawyer should review his drafting with a criticaleye, as it is probable the client will have the same problem.

Clear writing, clear thinking.Most of all we can recognize that unclear expression,

whether written or spoken, is frequently a symptom of un­clear thinking. Organizing your writing and tightening upyour expression may well improve the quality of your thoughtprocesses.

However, you still must continue to think like a lawyer,which will continue to set apart your writing and expressionfrom that of the public generally. One of my most vividmemories from law school is of walking into the studentlounge and inquiring of a classmate as to whether a certainclass had been cancelled. He started to speak, hesitated,and then gave an answer which only a lawyer can fullyappreciate: "Well, there is a note on the bulletin board whichsays that the class has been cancelled... ". f.......

"The Language Of The Tong"January 1981/Arkansas Lawyer/25

by Paul J. Nicholson

A REVIEW OF THE TAX DUTIES OF

PERSONAL REPRESENTATIVES ANDATTORNEYS IN THE PROBATE

AND ADMINISTRATION OFA DECEDENT'S ESTATE

In the probate and administration ofa decedent's estate, the personal rep­resentative must perform several Fed­eral and State tax duties. The purposeof this article is to give to the prac­titioner a general review of basic taxduties encountered by a personalrepresentative and his attorney inadministering a decedent's estate. Itdoes not attempt an exhausive treat­ment of the subject matter and does notattempt to explain the details involvedin actually performing these duties, orthe requirements of the law prior to the1976 Tax Reform Act. The ArkansasProbate System, published by the Ar­kansas Bar Association, contains anexcellent check list and sample formsin reference to a personal representa­tive's tax duties.'.

INITIAL CONSIDERATIONSAt the outset the personal repre­

sentative should prepare a basic bal­ance sheet for the estate and deter­mine the amount of the "gross estate",as defined in the (nternal RevenueCode, and the amount of probable in­come for the estate during the period ofadministration. From this the personalrepresentative should be able todetermine if it will be necessary to fileany tax returns on behalf of the dece­dent's estate. If it is determined that thepersonal representative will be filing re­turns on behalf of the estate, then thepersonal representative should obtaina tax identification number for the es­tate and should notify the taxing author­ities of his fiduciary relationship. Thetax identification number Is obtained byfiling a Form SS-4 with the appropriateregional IRS Service Center. It shouldbe filed in plenty of time for the taxidentification number to be issued andused upon the estate's returns. TheNotice of Fiduciary Relationship, Form56, should also be filed with the appro­priate regional IRS Service Center andwith the Department of Finance and

26/Arkansas LawyerlJanuary 1981

Administration. It should be filed withthe I.R.S. within thirty (30) days of theappointment of the personal represen­tative.' It should also be filed with theDepartment of Finance and Admin­istration within two months of theappointment.' The filing of the Form 56protects the estate from the assertionof a deficiency or penalty without noticeto the personal representative. If anotice is not filed, then a notice of adeficiency against the decedent or hisestate is effective if mailed to the lastknown address of the decedent.'

DECEDENT'S FINALINCOME TAX RETURN

It is the duty of the personal repre­sentative to see that the decedent'sfinal individual income tax return isprepared and filed for the taxable yearin which the decedent died.' The dece­dent's final Form 1040 is due April 15thof the year following the close of theyear in which the decedent died. TheForm AR-1 ODD, the Arkansas return, isdue May 15th of the year following theclose of the year in which the decedentdied.' The personal representativeshould always consider the feasibilityof filing a joint return with the dece­dent's surviving spouse if there is one.The Arkansas Probate Code specifi­cally grants him authority to executejoint returns with the surviving spouse'

SUBCHAPTER SELECTION·If the decedent owned stock in a

Subchapter S corporation at the date ofdeath, the personal representativeshould determine whether it is desir­able for the corporation to continue tobe taxed as a small business corpora­tion. If it is determined that the Sub­chapter S election should be termi­nated, then the personal representa­tive must take affirmative action inorder to do so.' The affirmative actionrequired is the filing by the personalrepresentative of a Statement of

)Paul Nicholson received his B.A.

degree from Hendrix College in 1971,his J. D. from the University ofArkansasin 1974. He is a member of the Arkan­sas Bar Association Section on Taxa­tion, Trust and Estate Planning, and ispresently a sole practitioner in UttleRock, Arkansas.

This article is another in the currentseries furnished by the Section onTaxation, Trust and Estate Planning.

Termination with the appropriate IRSregional service center within a periodof sixty (60) days measured from theday upon which the estate became ashareholder in the corporation.' A simi­lar statement should also be filed withthe Arkansas Department of Financeand Administration. 10

WITHHOLDING REPORTSIf the decedent was a taxpayer who

paid wages to employees, the personalrepresentative is responsible for con­tinuing to file his Employer's QuarterlyReturn of Tax Withheld, Form 941."The return must be filed quarterly andthe tax withheld should be paid on orbefore the last day of the month follow­ing the end of the quarter." Anemployer, such as a decedent, whogoes out of business or otherwiseceases to pay wages, must file a finalreturn marked "Final Return" whichmust be accompanied by informationindicating where the applicable recordsof the business will be kept, along withthe name and address of the newowner, if any." It is the personal repre­sentative's duty to file this final return."

GIFT TAX RETURNSThe personal representative will also

be responsible for the filing of a federal

gift tax return, Form 709, on behalf ofthe decedent where prior to his death,the decedent made gifts of a presentinterest to anyone person of a value inexcess of the $3,000.00 annual ex­clusion." And, if prior to death the de­cedent made a gift of a future interest,then a gift tax return is required regard­less of the value of the property in­volved." The due date for the filing ofthe return is determined on a quarterlybasis. Thus, if taxable gifts (those overthe annual exclusion) in a calendarquarter exceed $25,000.00, then thereturn is due to be filed after the end ofthat particular quarter. If, however, thetaxable gifts in a calendar quarter are$25,000.00 or less, the return for thequarter isn't due until the first subse­quent quarter in which taxable gifts forthe year exceed $25,000.00. And, if thetaxable gifts for the year don't exceed$25,000.00 the return is due after theend of the year. " The due date for thecalendar quarters of the year are asfollows: The first quarter-May 15th,the second quarter-August 15th, thethird quarter-November 15th, and thefourth quarter-April 15th of the follow­ing year."

ESTATE TAX RETURNSOne of the most important tax duties

of the personal representative is thedetermination as to whether the estateis required to prepare and to file a Fed­eral and State Estate tax return, IRSForm 706, Arkansas Form AY-321.Under current law, the filing of a Fed­eral Estate tax return is mandatedwhere the decedent's "gross estate"(as defined for tax purposes) exceedsspecified amounts set out in IRC Sec.6018(a). The gross estate of a dece­dent dying in 1980 would have to ex­ceed $161,000.00 before a Form 706would be required to be filed. For adecedent dying in 1981, the "gross es­tate" would have to exceed the sum of$175,000.00 in order for a Federal Es­tate tax return to be mandated. Beforeapplying these amounts to the grossestate, the code requires that they bereduced (1) by the amount of taxablegifts (those over the annual exclusion)made by the decedent after 1976 whichhave not been included as part of thedecedent's "gross estate" and (2)further reduced by the amount of thespecific $30,000.00 gift tax exemptionallowed to the decedent for lifetimegifts made after September 8, 1976and before January 1, 1977. The effectof these reductions is to increase thedecedent's "gross estate" by the

amounts of previously made taxablegifts.

The federal estate tax return is duenine months after the date of the dece­dent's death. " An extension of time forfiling the return can be granted for up tosix months by the Internal RevenueService. The personal representativecan apply for this extension by pre­paring and filing Form 4768 prior to thedue date of the return. Also, an ex1en­sion of time to pay the tax can be ob­tained upon a showing of "reasonablecause" '0 Special ex1ensions of time topay the tax are available where the es­tate includes a reversion or remainderinterest," or where the estate consistslargely of a closely held business."Again, the personal representativeshould prepare and file Form 4768prior to the due date of the return inorder to apply for an extension of timeto pay the estate tax.

In addition to properly preparing andfiling the estate tax return, the regula­tions require the personal represen­tative to submit certain documents andinformation in addition to the return it­self, such as inventories of assets,certified copies of the decedent's Will,and other documents."

The Arkansas estate tax return is re­quired to be filed only when a Form 706is required, unless a request is madefor a release of real estate. The Arkan­sas return is due to be filed at the sametime that the Form 706 is filed with theInternal Revenue Service."

ESTATE INCOMETAX RETURNS

Since the estate of a decedent is aseparate taxpayer, it must report in­come just as any other taxpayer does.The personal representative must filean income tax return, federal and state,for the estate during its administration.This is done on Form 1041 for the fed­eral retum and on Form AR-1002 forthe Arkansas return. The federal returnmust be filed where the gross incomeof the estate is $600.00 or more duringits taxable year, or if any beneficiary ofthe estate is a non-resident alien."Upon the distribution to a beneficiary orupon the closing and final distributionof the estate, a separate Schedule K-1must be prepared and attached to thereturn. This schedule shows theamount of the estate's income which isincludable in the beneficiary's gross in­come. It also shows the beneficiary'sshare of certain credits and deductionsin excess of the estate's taxable in­come which are passed through for use

by the beneficiary. This points up oneof the most interesting features of theincome taxation of an estate. The es­tate is treated as a conduit of incomeand in its final taxable year, being theyear of closing and final distribution,the estate may pass through the ex­cess deductions to the beneficiaries foruse upon their individual returns. Thus,the personal representative shouldcarefully consider the feasibility of filingand preparing the Form 1041 evenwhere the gross income of the estate isnot expected to exceed $600.00.

It should be pointed out that there arecertain estate expenses which may betaken both as estate tax deductions onForm 706 and income tax deductionson Form 1041 .The items deductible forestate tax purposes will not be allowedas income tax deductions however, un­less the personal representative files"in duplicate" a statement that no es­tate tax deduction for the item has beenallowed and that the estate waives anyright to take the estate tax deduction forthe items. Also, ancillary personal rep­resentatives must file a return called"an ancillary return" showing the nameand address of the domiciliary rep­resentative, the gross income receivedby the ancillary representative, the de­ductions to be claimed against said in­come, and the amount of any propertydistributed to the beneficiaries."

The Arkansas fiduciary return, FormAR-1002 should be filed where the es­tate's gross income exceeds$1,500.00, or one of the beneficiaries isa resident of another state. The returnis due to be filed under the same filingrequirements for the AR-1000 exceptas regards a fiscal year estate. In thatcase, the return is due five and one-halfmonths after the close of the taxableyear. 27

GENERATION-SKIPPING RETURNSWith the institution of the gen­

eration-skipping transfer tax by the1976 Tax Reform Act, additional dutieshave been imposed upon the personalrepresentatives of decedent's estates.The trustee of a generation skippingtrust must file both a generation­skipping tax return, Form 706-B, and ageneration-skipping information re­turn, Form 706-B(1). The due date andfiling requirements for these returnsare set out in the new temporaryregulations recently published."

DUTIES UPON CLOSINGUpon the completion of administra-

continued on page 28January 1981jArkansas Lawyerj27

A Review...ADecedent's Estate

continued from page 27

tion, the personal representativeshould file a "Notice of Termination ofFiduciary Relationship" with the sameIRS Regional Service Center withwhich he filed the notice of "FiduciaryRelationship". And, he should also filethe notice with the Department of Fi­nance and Administration. Upon the fil­ing of this notice, any tax liability willthereafter be asserted not against thepersonal representative, but againstthe person to whom the assets havebeen distributed. This notice should beaccompanied by satisfactory evidenceof the closing of the estate and termina­tion of the fiduciary's duties (such ascertified copy of the Final Order of

Apportionment And... Injury Fund

continued from page 5

disabilities or impairments isgreater than that whichwould have resulted fromthe last injury, consideredalone and of itself, and if theemployee is entitled to re­ceive compensation on thebasis of combined disabili­ties, the employer at the timeof the last injury shall be li­able only for the degree orpercentage of disabilitywhich would have re­sulted from the last injuryhad there been no pre­existing disability orimpairment."

The Court of Appeals reasoned that theamendment wouid not have beennecessary if Section 13(f) (2) (ii) as itnow stands applied to preexisting dis­abilities not occasioned by a work-re­lated injury. It seems safe to presume

Oyez, Oyez...,continued from page 19

In August, DIANE MACKEY, of LittleRock, was sworn in by U.S. DistrictJudge G. Thomas Eisele as a new as­sistant U.S. attorney for the EasternDistrict of Arkansas. She has recentlycompleted a two-year position as lawclerk for Judge Eisele.

KNOX BAIRD KINNEY. JR., of For­rest City, has joined the law firm of Kin­ney and Easley.28/Arkansas Lawyer/January 1981

Distribution and Discharge)."This completes a general review of

the federal and state tax duties of thepersonal representative in the prtbateand administration of a decedent's es­tate. Personal representatives andtheir attorneys should become familiarwith these duties and when necessaryobtain the services of a competent taxadvisor to assist in performing them.

FOOTNOTES1 See AC400, Arkansas Probate System., IRC, Sec. 6903(0); Regs. Sec. 301.6903-

1(0).3 Ark. Stat. Ann., Sec. 63-119.• Regs., Sec. 301.6903-1 (c).• IRC, Sec. 6012(b)(1); Regs. Sec. 1.6012-

3(b)(1).• Ark. Stat. Ann., Sec. 84-2027.7 Ark. Stat. Ann., Sec. 62-2131.• I.R.C.. Sec. 1372(e)(1).

that after January 1, 1981, all prior dis­abilities, whether occasioned by awork-related injury or by a nonwork-re­lated injury, will suffice to invoke theprovisions of Section 13(f) (2) (ii).

As the key word regarding subse­quent injuries is "Symptomatic", thekey word involving apportionment is"latent." If, at the time of the subse­quent accident the prior disability waslatent, then the subsequent employeris responsible for the entire disability,including and embracing both the priorand subsequent disabilities. Con­versely, if the subsequent disabilitywas active to a degree, then the rule ofapportionment applies.

After January 1, 1981, as previouslydiscussed, the Second Injury Fund willbe responsible for the payment of thatdegree of disability which an injuredemployee has which he would not havehad had he not had a prior existingdisability. It is pointed out that the Act,as it will be amended, provides that incases here a recovery is soughtagainst the Second Injury Fund, theState Treasurer shall be named as a

RUSS MEEKS has opened his lawoffice at Suite 1151 First National Build­ing in Little Rock.

NEVA B_ TALLEY received tworecognition awards this summer at theannual meeting of the American BarAssociation. She is also the firstwoman lawyer in history to serve aschairperson of the Family Law Sectionof the American Bar Association.

~

• I.R.C., Sec. 1372(e)(1)(A).'0 Acts, 1979, No. 414." Regs., Sec. 31.6061-1." Regs., Sec. 31.6071(0)-1(0)." Regs.. Sec. 31.6011(0)-6(b)... Regs., Sec. 31.6061-1." LR.C. Sec. 6019; Regs., Sec. 25.6019-1(e)." I.R.C. Sec. 2503(b), Regs., Sec. 25.2503.2." I.R.C. Sec. 6075(b) (2) & (b) (4)." LR.C. Sec. 6075(b) (1)." LR.C. Sec. 6075(0); Regs. Sec. 20.6075.1.~o Regs. Sec. 20.6151-1.2, l.R.C. Sec. 6163." I.R.C. Sec. 6166, 6166A." Regs. Sees. 20.6018-3(0) & (c), 20.6018-4(0).24 Ark. Stat. Ann., Sec. 63·' 23." LR.C. 6012(0) (3) & (5); Regs., Sec. 1.6012­

3(0) (1).a Regs. Sec. 1.6012-3(0) (3).27 Instructions to Form AR-l002: Ark. Stat.

Ann., Sec. 84-2027." Temp. Regs. Sees. 260.2621-1(e)(1)(i);

260.2621-1 (e)(l )(ii).a Regs. Sec. 301.6903-1 (b). I..

...

party and shall be entitled to defendagainst the claim. The State Treasurermay enter into lump sum or joint peti­tion settlements and may utilize theappellate processes.

Where the amendment effective in1981 will take us is uncertain as amaiden's dream. Nonetheless, it issubmitted that if the Second InjuryFund can meet the tests from an actua­rial standpoint, then the Act, as it will beamended, will be a giant step forward inproviding an adequate remedy for aninjured employee based upon a fairconsideration for the employer and hiscarrier. It should encourage rather thandissuade employers to hire personswith an existing handicap.1-....

Bar Foundation,continued from page 3seminars, or perhaps the EducationCommittee will try to develop researchand original thought on the subject byoffering monetary prizes for writing andpublications on the subject. I'm surethere are many other good ways topromote the idea of increasing ourprofessionalism and somehow gainingthe feeling that we are "once more con­fident, that ethical behavior is desir­able, widely practiced, approved, andadmired." If you have any ideas on howthis can best be presented to the Barand to the public, we would love to hearthem, Vou can write to Bob Brown orme at the Bar Center or you can write tome at P.O. Box 447, Bentonville, Ar-

kansas 72712. '"

There may be an angryclient on your trail!

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

City _

Namc _

Firlll _

;\ddress _

Association sponsored Comprehensive LawyersProfessional and Business Liability Plan, includ­ing the exclusions, any reductions or limitationsand the terms under which the policy may becontinued in force. Just send the coupon belowto the administrator: Rather, Beyer & Harper

,---------------------,Please send me information for the Arkansas Ba,' Asso· Iciation sponsored Lawyers Professional and Business ILiability Insurance. Send to: I

Arkansas Bar Association Administrator IRather, Beyer & Harper I

Suite 362. Prospect Building, I1501 North University. Little Rock. Arkansas 72207. I

Or call (501) 664-8791. IIIIIII

Spom;ort.'CI ~~S"S Ih, ~~'K;\<" I

< ':!::'">J.I Siale Ip 1} =- '-Sl I:.1(\",,,\'1L ~

You never know when a client will threatenyou with a lawsuit ... and be hot on your trail tocollect. In view of the growing number of claimsand the dollar amounts paid in settlement, thetime may come when the only practicing attor­ney will be a well-protected attorney. No lawyer,working alone or as part of a team, is immunefrom a lawsuit.

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

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

January 1981/Arkansas Lawyer/29

LEGAL ECONOMICSBy: Thomas S. Clay

ALTMAN & WElL, INC.Management Consultants

Ardmore, PA and Orinda, CA

BUY OR LEASE? THE OFFICE SPACE PROBLEMIt costs between $4,466 and $6,016

a year to provide office space for thetypical lawyer according to The 1979Survey of Law Firm Economics.This expenditure provides space forthe lawyer and support staff and in­cludes expenditures for rent, utilities,janitorial service, real estate taxes andlike items. It is a major expense in mostlaw firms.

Occupancy costs tend to vary withlocation. The higher costs are in thefirst class buildings in large cities.Costs tend to be lower in towns andsuburbs. Experts in real estate predictlease rates as high as $40 per squarefoot in a decade. At present, law firmsgenerally pay from as little as $7.50 toalmost $20 per square foot, per year,depending on city and building.

Lawyers are generally concernedwith the cost of the space they occupy.After all, occupancy may take from fourto ten percent of gross receipts. One ofthe questions often asked by lawyers oftheir consultants is whether a law firmshould continue to lease space orpurchase (or build) a building. Theanswer is never easy to determine andrequires significant long range plan­ning and financial analysis.

There are a number of factors thatmust be considered prior to embarkingon a construction or purchasing pro­gram. Some of the economic andnon-economic factors that make officeownership attractive for the law firmare:

1. Flexibility with respect to presentand future space needs and of­fice layout if carefully planned.

2. Ability to control many of the fac­tors comprising occupancy costs.

3. A cash return on invested capitalto the building owners.

4. Favorable tax treatment of com­mercial real estate.

5. Appreciation of the real property(an infiation hedge).

3D/Arkansas Lawyer/January 1981

Problems that may arise with owner­ship if proper planning and manage­ment does not occur are:

1. Significant management time isrequired by owners, diminishingthe time available for the practiceof law.

2. There is significant financial ex­posure of the owners if unoccu­pied space is not leased or notleased at projected rates.

3. Objections by law partners not in­volved in the real estate owner­ship to iease rates paid by the firmcan occur. Often youngerpartners perceive that the real es­tate owners are not equitably set­ting rates, thus siphoning profits.

4. Younger partners may perceiveownership of the real estate as a"right" acquired with law firmpartnership. If policy with respectto admission rights and costs (if infact there are to be any) are notcommunicated, serious conse­quences may arise.

Any analysis to determine whetheror not the firm should continue to leasespace or purchase its own spaceshould include a number of steps. Mostlaw firms should enlist expert servicesin making these determinations.

GrowthLaw firms should project growth in

numbers of lawyers and support per­sonnel based on past experience, ex­pected increases in clients, entry intonew areas of law and similar factors.Such long range planning must occurin order to determine the acceptabilityof present space (and available expan­sion space) and to determine squarefootage requirements of space to bepurchased or built. Many firms areexperiencing the croWding associatedwith inadequate planning for new per­sonnel. It is generally better to haveexcess space than to have too little.

Interior LayoutToo often lawyers become overly

concerned with the aesthetics of abuilding, in particular the exterior, anddo not pay adequate attention to thefunctional aspects of the interior space.Interior needs should be defined priorto architectural design. The relativelength and width affects the utility ofinterior space. Long narrow buiidings,for example, generally are inefficient aslaw office space. Inattention to detail inthis area often leads to functionallyinefficient space.

OwnershipThe partners of a law firm will usually

form a separate partnership to hold titleto the real estate for tax and liabilityreasons. If no policies are set for exclu­sion or addition of new law partners tothe real estate partnership, problemswill occur. Generally, the partners willbuild or purchase an existing buildingand then lease space to the law firm.This arrangement works well until anew law partner is brought in. Oftennew partners expect to "automatically"obtain an interest in the building. Prob­lems arise if the building owners haveno policy with respect to new owners orfor determining terms of purchase.

In one firm whose founding partnersowned the building and would not allowyounger law partners to purchase aninterest, the younger partners felt thatolder partners were draining firm fundsand threatened to leave. In the crisiswhich resulted, an appraisal was per­formed to determine the building valueand the younger partners were allowedto buy in. Ironically, most of them de­clined as the market value of the build­ing was much greater than they hadperceived it to be. In fact, the analysisshowed that the firm was paying lessthan market rental rates.

Financial AnalysisA pro forma financial analysis must

be performed by an expert to deter­mine value. Such an analysis willdetermine the expected return to build­ing investors, based on market leaserates and expense. Depending on thepersonal financial requirements of thereal estate owners, lease rates can beadjusted downward to a break-evenpoint. However, mortgages often re­quire certain minimum levels of rentalrates, thus reducing pricing flexibilityfor owner occupants.

The real price break for the firm canoccur three to five years after purch­ase. Many smaller leases expire inthree to five years and may be renewedat a higher level. At this time the build­ing owners/law firm owners can makea decision to keep the firm's lease ratesbelow market, if desired. This is whenreal occupancy cost benefits can oc­cur.

An example of a pro forma operat­ing statement appears in theaccompanying table. Such a projectionshould be prepared whether a newbuilding is contemplated or in consid­ering purchase of existing space.

FinancingMany sources of permanent financ­

ing for small office buildings are avail­able. Traditional lenders, such as sav­ings and loan associations and com­mercial banks, should be explored.Pension funds, industrial developmentauthorities (backed by tax free bonds),and private investors are becoming asource of funds for permanent financ­ing. Great care should be taken insearching for and selecting financingas rates and terms determine whetheror not a project is economically viableand often whether the project is salablein the future.

Leasing/ManagementLeasing and management should

usually be done with the aid ofspecialists. Many law firms try to per­form these functions to save on ex­penses, sometimes utilizing law officemanagers with varying degrees of suc­cess. In most instances the four to sixpercent of gross revenues paid forthese services is cheaper in the longrun than expending law firm personneltime.

SummaryIf the proper steps are taken to de­

termine a firm's functional needs andeconomic viability of the real estate, thepurchase of space can be a soundmove. A good building can be thecornerstone to a lawyer's image in thecommunity. f.....

PRO FORMA INCOME STATEMENTLAW OFFICE BUILDING

Cost perGross Rental Income Square Foot Total Cost

Total 32,000 Square Feet $8.50 $272,000less: Vacancy allowance @ 5% 8.50 13,600

1600 Square Feet

Gross Operating Income 258,400

Less Operating ExpensesCleaning & Supplies .48 14,592Utilities 1.05 31,920Real Estate Taxes .52 15,808Insurance .08 2,432Elevator Maintenance .26 7,904General Repairs/Reserves .25 7,600Management Fee(6% of Gross) .60 18,240Miscellaneous __.1_2 3,648

Total Expense $3.36 $102,144

Net Operating Income $156,256

Less Debt Service· 137,250

Net Income $19,006

·Oebt Service Calculation$156,256 capitalized at 10% yields an approximate "value" of

$1,500,000.A 75% loan-to-vatue ratio will secure a mortgage of $1,250,000.Debt service on a 30 year loan at 10.5% = $137,250.

MID-YEAR MEETING

CAMELOT INN, LITTLE ROCK

JANUARY 15-17, 1981

DEBTOR-CREDITOR RIGHTS

featuring the new 1981ARKANSAS DEBTOR-CREDITOR

RELATIONS SYSTEM

January 1981/Arkansas Lawyer/31

AICLE NEWSby Claibourne W. Pally. Jr.

Executive DirectorArkansas Institute of

Continuing Legal Education

DOMESTIC RELATIONS THEME OF 1980FALL LEGAL INSTITUTE

It

The Fall Legal Institute, held at theCamelot Inn, lillie Rock. September18-19, 1980, allracted over 300 regis­trants. The topic of Domestic Relationsincluded both recent developments ofArkansas law including Act 705 of 1979and the new Arkansas Domestic Re­lations System published by the Fam­ily Law Section of the Arkansas BarAssociation. During the morning regis­tration period the sections and commit­tees of the Arkansas Bar Associationwere able to convene and conductbusiness for the first time since the an­nual Bar meeting in June. The Thurs­day morning session of the programincluded the following topics: An Exp­lanation of the Arkansas DomesticRelations System itself by Robert M.Cearley, Jr. of lillie Rock, Vice-Chair­man of the Family Law Section; IncomeTax with Respect to Divorce or Separa­tion in Arkansas by James E. Harris ofLillie Rock; and the Tax consequencesof Property Division by Joseph N.DuCanto of Chicago.

Phillip Carroll, President of the Ar­kansas Bar Association, spoke at theThursday luncheon on the subject of"Arkansas Bar Association's Legisla­tive Program for 1981." He also intro­duced Messrs. Joe Bell and JimRhodes of lillie Rock who will be lobby­ing and monitoring the legislature dur­ing its 1981 session on behalf of theArkansas Bar Association and its legis­lative package.

The Thursday afternoon portion ofthe program was devoted to the follow­ing topics: The Legislative and CaseLaw History of Act 705 of 1979, Con­cerning Division of Property Upon Di­vorce by Ben D. Rowland, Jr.. Chair­man of the Family Law Section; Act70S-Eight Criteria Used in PropertySettlements by Professor Henry H.Foster, Jr. of New York City; Act32/Arkansas Lawyer/January 1981

705-The Value of the Homemaker byMichael H. Minton of Chicago and theMissouri Experience with its equivalentof Act 705 by Roger Krumm of Fulton,Missouri.

The Friday morning portion of theprogram was devoted to the followingtopics: A Chancellor Looks at ChildCustody, Support and Visitation with aList of Criteria by Chancellor Robert H.Dudley of Pocahontas; ContractualAgreements by Phillip E. Dixon of LittleRock; Garnishment and Post DivorceRelief by William G. Myers of Fayelle­ville and Bankruptcy and Divorce De­crees by U.S. Bankruptcy JudgeCharles E. Baker of lillie Rock.

The main speaker at the Fridayluncheon was U.S. Senator Dale Bum­pers who devoted a large part of his talkto a congressional report of pendinglegislation which will affect lawyers andtheir clients as well as a commentaryon legislation recently passed and cur­rent international affairs affecting theUnited States.

The Friday afternoon portion of theprogram was devoted to the followingtopics: Social Security Considerationat the time of Divorce by AdministrativeLaw Judge L. D. Blair of Little Rock; theMilitary Divorce by C. Larry Carpenter,Jr. of North lillie Rock; AntenuptialAgreements by Virginia Atkinson of lit­tle Rock and the Government's ChildSupport Collection Process-PulaskiCounty by Mr. R. E. Brians, Arkansasby Scoll E. Dobbs and the IRS ChildSupport and Alimony Collection Pro­cess by Mr. Doyne L. Plummer.

This program was so enthusiasti­cally received by those attending that itwas the decision of the AICLE Board tooffer a videotape one day program ofthe Thursday portion along with appro­priate live commentary by local judgesand/or lawyers at at least four locations

in the state. These regional programswill be described more in detail later inthe article.

TWENTY-FIRST ANNUALPRACTICE SKILLS COURSE

HELD IN LITTLE ROCKThe annual Practice Skills Course,

jointly sponsored by the Young Law­yers Section of the Arkansas Bar As­sociation and AICLE, is one of thelongest running, continuous annualprograms in the history of Arkansascontinuing legal education. Its seniorityis tied with the annual Mineral Law In­stitute and exceeded only by the FallLegal Institute. The registrants weremade up mostly of recent admittees tothe Bar with some lawyers returning fora refresher course plus those only re­cently becoming active in the practiceof law and needing more than just a"refresher" course. The two daycourse, held at the lillie Rock Conven­tion Center, October 2-3, 1980, pro­vided basic and practical instruction bypracticing lawyers along with handoutmaterial including checklists and cur­rent forms used by these lawyers intheir daily practice. Typical subjectscovered in this course from a practiceoriented rather than a substantive lawmanner included: Real PropertyTransactions, Representation of Busi­ness Clients, Estate Planning and Pro­bate, Litigation, Ethics and Fees, Crim­inal Practice, Domestic Relations, LawOffice Management, and Representa­tion of Creditors and Debtors. Theindividual presentations and the hand­out material were oriented strictly to­ward gelling the new or recently activelawyer safely in and out of the court­house and otherwise assist them instarting and building their law practiceduring an initial three year period.

All of the subjects were presented

"live" by at least one and more oftenteams of two speakers, each giving adifferent point of view to the particularsubject. Some of the speakers wererecruited from the ranks of the YoungLawyers Section, whereas others weremore senior practitioners who are in­terested in sharing their experienceswith those who have recently joined ourprofessional ranks. This is an annualcontinuing legal education programwhich I expect to have a long and heal­thy existance as long as we have sub­stantial numbers of new admittees join­ing our Bar Association each year.

ARKANSAS-FEDERALTAX INSTITUTE

For the second time AICLE is goingto co-sponsor the 19th Arkansas-Fed­eral Tax Institute with the ArkansasSociety of Certified Public Account­ants. This first rate tax program will beconducted November 13-14, at theCamelot Inn, Little Rock.

The faculty, made up jointly oflawyers and CPA's of national promi­nence, will discuss the following topics:Tax Effects of Partnerships and Pro­fessional Associations: Design of De­fined Benefit Plans; Tax Planning forAgriculture; Tax Effects of Apart­ment-Condominium Conversions andRecent Developments in Tax Law. Thiscourse was well attended by lawyerslast fall who made up approximatelyone-third of the registration, and I ex­pect an equally good attendance thisfall especially from those lawyers whohave been attending the spring TaxAwareness Workshops sponsored bythe Trusts, Taxation and Estate Plan­ning Section of the Arkansas BarAssociation. Even though this particu­lar program is given at an advancedlevel, I personally encourage thoseattorneys who consider themselves atleast to be at the intermediate level toconsider attending this important taxseminar, because the quality of thespeakers is such that they can makethe most complex tax concepts under­standable to the practitioner who doesnot also happen to be a CPA. Further­more, I think the practitioner who is atthe intermediate level of taxation exper­ience should not hesitate to broadenhis or her horizons in this area andshould operate under the theory that"one's reach should exceed one'sgrasp."

REMAINDER OF FALL CLEPROGRAM MOST ACTIVE

FOR AICLEOther than the Fall Legal Institute,

the annual Practice Skills Course, and

the Arkansas-Federal Tax Institute,there will be a number of CLE pro­grams sponsored by AICLE on a var­iety of subjects. The first of such pro­grams will have already been held bythe time you receive your copy of theArkansas Lawyer which was the con­ference on Developmental Disabilitiesand the Law. This program, jointlysponsored with the UALR School ofLaw, Arkansas Bar Association Com­mittees on the Mentally Disabled andLegal Services for the Deaf and theGovernor's Developmental DisabilitiesPlanning Council, will be held at theCamelot Inn, Little Rock, on October10-11,1980. Topics to be covered willinclude unresolved issues on handi­capped citizens, individual habilitationrights plans, de-institutionalization,rights to developmental disability ser­vices, guardianship, and legal repre­sentation of deaf clients. This programis both innovative and unique, not onlyto the United States in the area of CLEprogramming but also to the state ofArkansas.

Another program which will havebeen held by the time you read thisarticle will be a Banking Law Seminarco-sponsored by AICLE and the Bank­ing Law Committee of the ArkansasBar Association at the Camelot Inn, lit­tle Rock, October 17,1980. The topicswill include a usury update, a discus­sion of current legislation, recent courtdecisions and proposed constitutionalchanges in the field of usury; consumercredit regUlation update; a regulatoryoutlook, a discussion of the regulatoryclimate, the impact of the Omnibus Billand the outlook for the banking industryin general; and financial institutionsregulatory and interest rates control actupdate, a discussion of current prob­lems and recent developments underFIRA and its impact on banking prac­tices. A concurrent mailing was madeto the members of the Arkansas Ban­kers Association who were encour­aged to bring their lawyers as well asthe lawyers being encouraged to bringtheir banker-clients.

A third program which you will havean opportunity to attend is an AppellateAdvocacy Seminar jointly sponsoredwith the Civil Procedure Committee ofthe Arkansas Bar Association to beconducted at the Camelot Inn, LittleRock, December 5, 1980. This onetime program which has been promp­ted by the recent mailing of the Appel­late Advocacy Handbook prepared byJacqueline Wright, Supreme Court li­brarian, will include the following to-

pies: courts of appeal-jurisdiction andreview; appealable orders; superse­deas and stay on appeal, processingan appeal, and preparation and cor­rection of the record.

In addition to the above programs,regional seminars will be conducted atfour locations, Fayetteville, Jonesboro,Monticello and Magnolia between thedates of October 24 and December 12,which will include color videotape re­play of the Thursday portion of the FallLegal Institute program on Arkansasdomestic relations law with the additionof one or two live commentators, suchas local practitioners and local chancel­lors for the benefit of those members ofthe Bar Association who were unableto attend the Fall Legal Institute held inLittle Rock. This type of videotape re­play will be a first for Arkansas, sincewe have had the capability of videotap­ing in the past, but we have alwaysbeen hampered by the availability offacilities suitable for videotape replayother than at the law schools in Fay­etteville or Little Rock. Now other stateuniversities have suitable facilities, inJonesboro and Magnolia, and otherprovisions have been made for theshowing in Monticello.

A report on the success of the aboveprograms will be made in a later issueof the Arkansas Lawyer.

CREDITORS-DEBTORS LAWSYSTEM TO BE PRESENTED

AT MIDYEAR MEETINGThe Arkansas Creditors-Debtors

Law System, authored by ProfessorGlenn Pasvogel of UALR School ofLaw, and edited by the Creditors RightsCommittee of the Arkansas BarAssociation, chaired by Allen Byrd ofLittle Rock, will be available for the firsttime to registrants at the annualMidyear Meeting at the Camelot Inn onJanuary 15-16, 1981. This program,cochaired by Allen Bird of Little Rockand Dean David Epstein of the Univer­sity of Arkansas School of Law in Fay­etteville, will include the following to­pics: sales and secured transactionsunder the UCC; prosecution and de­fense of claims under the UCC; collec­tion of judgments and enforcement ofliens and applicability of the new fed­eral bankruptcy law.

Along with prominent Arkansasattorneys and law professors who haveworked on the system itself, the pro­gram will feature well-known out-of­state speakers on debtors and credi­tors rights and the Uniform CommercialCode f-

January 1981/Arkansas Lawyer/33

CODE Of

PROfESSIONAL RESPONSIBILITY

(Editor's Note: The American Bar Association's Com­mission on Evaluation of Professional Standards-so­called "Kutak Committee"-has prepared proposedMODEL RULES OF PROFESSIONAL CONDUCT tosupplant the current CODE OF PROFESSIONAL RE­SPONSIBILITY, which was developed by the "WrightCommittee". The late Edward L. Wright of Arkansas wasthe Committee Chairman. The "Kutak" Report has hadrough sailing not only in ABA circles, but also with mostother professional organizations. The Arkansas Bar As­sociation's Board of Governors on September 20, 1980adopted a resolution against the "Kutak" Report, but forany needed changes in the current Code of ProfessionalResponsibility. The National Organization of Bar Coun­sel's related Report provides a good background studyand evaluation of the "Kutak" Report. Accordingly, partsof the NOBC Report are reproduced here-withpermission-for study by all members of the ArkansasBar.)

BACKGROUNDThe present Model Code of Professional Responsibility

was the result of a six-year exhaustive study begun in Au­gust, 1964 by an ABA Special Committee on Evaluation ofEthical Standards which was charged to examine the formerCanons of Professional Ethics and to make recommenda­tions for changes.

That Special Committee concluded that the Canonsneeded revision in four principal particulars:

(1) There were important areas involving the conduct oflawyers that were only partially covered by or totallyomitted from the Canons;

(2) Most Canons that were sound in substance needededitorial revision;

(3) Most of the Canons did not lend themselves to practi­cal sanctions for violations; and

(4) Changed and changing conditions in our legal systemand urbanized society required new statements ofprofessional principles.

As the result of their activities a new Code of ProfessionalResponsibility was initially adopted by the ABA House ofDelegates on August 12, 1969 with later amendmentsadopted on February 24, 1970. The Code contains nineCanons, 130 Ethical Considerations and 39 DisciplinaryRules replacing the previous 32 Canons of ProfessionalEthics.

Paralleling the activities of the ABA Special Committee onEvaluation of Ethical Standards were those of an ABA Spe­cial Committee on Evaluation of Disciplinary Enforcementcreated in February 1967, a bit later than the Ethical Stan­dards Committee. This Special Committee which became34/Arkansas Lawyer/January 1981

known as the "Clark Committee" developed recommenda­tions for improvement in disciplinary enforcement of ethicalstandards which were approved for distribution by the ABAHouse of Delegates in August, 1970.

As the result of the work of these two special committeesthe vital groundwork was laid for a reform movement inlawyer discipline which has swept the nation. The new Codeprovided meaningful Disciplinary Rules susceptible to appli­cation of disciplinary sanctions for their violation;-the im­proved disciplinary enforcement agencies provided the re­sources necessary to pursue the sanctions.

Three additional developments must be mentioned:-(1)in 1965 an organization of counsel to state bar associationsthroughout the United States was formed as the NationalOrganization of Bar Counsel (NOBC). In 1977 the Organiza­tion was incorporated and declared its membership openedto attorneys active in matters involving lawyer discipline orrelated to the unauthorized practice of law; (2) in 1972 anABA Standing Committee on Professional Discipline wascreated which has served in leading the reform movement inthe country improving lawyer discipline; and (3) in 1973 anABA Center for Professional Discipline was establishedunder the general supervision of the ABA Standing Commit­tee on Professional Discipline to serve as a focal point fordevelopments in attorney discipline (this office was re­named National Center for Professional Responsibility inAugust 1978).

STATEMENT OF OBJECTION TO PROPOSED CHANGEIN FORMAT OF THE MODEL CODE

SUbsequent to the developments set forth above, a sig­nificant national body of law has developed in lawyer disci­pline which is directly derived from or related to the presentABA Model Code of Professional Responsibility. TheCode's disciplinary rules are continually cited in thousandsof court cases, advisory opinions, law review articles andother legal references. Recently (1979) the American BarFoundation has published a 478 page ANNOTATED CODEOF PROFESSIONAL RESPONSIBILITY replete with ex­tensive case citations which describes and analyzes thedevelopment of the changing Code through the years sincefirst adoption by the ABA House of Delegates. Hundreds ofattorneys involved with lawyer discipline have become inti­mately familiar with the disciplinary rules as presented in theCode and the bar in general has increasing familiarity withtheir existence. One need only pick up at random a recentadvance report under the National Reporter System of WestPublishing Company and examine the cases keyed under"Attorney and Client" to prove to himself these points.

In the 3rd paragraph of the Preface to the DiscussionDraft, the Kutak Commission notes that it " ... soon realized

that more than a series of amendments or a general re­statement of the Model Code of Professional Responsibilitywas in order. The Commission determined that a com­prehensive reformation was required..." With no furtherexplanation, the Commission proceeded to propose a com­pletely changed format in the Model Code.

The National Organization of Bar Counsel (NOBC) is notaware of any reason, or of any suggestions from othersources of any reason, which suggest, let alone require, adeparture from the format and structure of the present Code.The NOBC believes that such a departure, if adopted, wouldseriously impair the acceptability and effectiveness of aModel Code, and substantially undermine the giant strideswhich have been achieved since the adoption of the formatand construction of the present Code of Professional Re­sponsibility.

The NOBC recognizes the substantial time, effort andexpertise which has been expended in developing the pro­posed Model Rules of Professional Conduct and we expressour strong objections to the format and construction of theproposed Model Rules only after extensive review and seri­ous debate. The compelling reasons for our position are asfollows:

1. Nearly one-half of all practicing attorneys havestudied the present Code while in law school (post1970 graduates) and the remaining one-half havepracticed under the present Code for ten years.

2. The absence of any other significant effort to changethe format and construction evidences a workingsatisfaction with the present arrangement, particularlywith regard to the Disciplinary Rules.

3. A wealth of case law related to the present Codesections has been developed since adoption of theCode and nearly all sections have been subjected tojUdicial scrutiny and interpretation.

4. Indexing of case reporting systems and legal scholar­ships has been geared to the present Code sectionsLe., conflicts, confidentiality, etc. The proposedchange in format would necessitate a new selection ofindexing topics, Le., Advocate, Advisor, Negotiator,etc., with overlapping traditional subtopics. For thosejurisdictions having computer or other record keepingsystems based on the present Code numbering sys­tem there will be a significant cost associated withchanges to a completely different system.

5. The proposed indexing of topic areas creates a falseillusion that different ethical standards apply to diffe­rent areas of practice. The need to specifically ad­dress problem areas which relate to specific areas ofpractice can be accomplished without disruptions tothe present format.

6. The Model Draft does not lend itself to ready identifi­cation of recognized ethical topic areas; e.g., whereasissues dealing with conflicts of interest were previ­ously found in Canon 5, the proposed Model Rulescover similar issues in sections 1.5, 1.6, 1.8, 1.9, 1.16,2.1, 3.9, 3.11, 5.1, 5.2, 7.5 and 8.2. The economicaspect of added costs as mentioned in subparagraph4 above applies here also.

7. Although the present Code has been adopted withsome variations in nearly every jurisdiction, the ab­sence of voiced need for change in format along withhistorical reluctance to depart from acceptable provenform suggests that many jurisdictions would be reluc­tant to adopt the Model Draft in its present format.

8. There is a strong desirability to seek uniformity in theapproach to lawyer discipline for unethical conduct fora number of good reasons many of which supportdevelopment of uniform state laws in general. Failureto adopt a Model Code which will gain ready accep­tance in all jurisdictions will impair national uniformity.

The Commission in its pamphlet Dilemmas in LegalEthics: A Celebration and Critique of the Code of Pro­fessional Responsibility states "Largely in that spirit, theCommission has foregone the approach to continuedpiecemeal amendment of the Code and has begun draftingwhat it hopes is a coherent, comprehensive, and constitu­tionai statement of professional responsibility." "Thatspirit" justifying the Commission's general departure fromthe style, form and much of the substance of the proposedCode apparently grew from the following seeds listed in theCommission's pamphlet:

(a) A number of amendments to the Code have beenrequired "simply to keep the Code abreast of deci­sions of the Supreme Court of the United States."

(b) The profile of the "Typical lawyer" is changing;-thereare more government lawyers and in-house corporatecounsel.

(c) There are significant changes in what clients, thepublic and government regulators expect of lawyers.

(d) A statement in 1934 by Mr. Justice Harlan Fiske Stonethat "Our canons of ethics for the most part aregeneralizations designed for an earlier era".

The NOBC submits that all of the above reasons aresubject to challenge as adequate justification for the radicaldeparture in form and style represented by the Commis­sion's proposal.

Regarding reason (a) above, of course amendments tothe Code have been required but they have been relativelyfew in number and it is believed that only in the case of theadvertising rules and those dealing with group legal serviceswere amendments made "simply to keep abreast of deci­sions of the Supreme Court of the United States.

As to reason (b) while statistically there may be "moregovernment lawyers and in-house corporate counsel" thereis still a high percentage of sale practitioners or those prac­ticing in small firms. Even accepting as provable for the sakeof argument the statement that "the profile of the 'typicallawyer' is changing", such development would not by itselfwarrant discarding a Code acceptable to near majority oflawyers simply to deal with the problems of a few. It is farbetter to provide for new problems arising from new profes­sional relationships or duties by revisions of or amendmentsto the present Code.

While reason (c) may be true, again, it provides no goodbasis for rejecting the present Code in toto. "Consumerprotection" for the legal profession means protection of theclients' as well as the general public's interests. The presentCode manifests a serious concern to provide such protec­tion throughout its page whether it be in its canons, ethicalconsiderations or disciplinary rules.

Certainly reason (d) cannot be accepted as any validbasis now for rejecting out of hand the present Code whosedevelopment it actually served to inspire! The presentCode has served the profession in admirable manner for thepast memorable ten years and with careful revision willcontinue to so serve in the future. It's form and style areexemplary. Its substance can and should be revised tocomport to changing conditions in the practice of the law andin jurisprudence and society in general. 1--

January 1981/Arkansas Lawyer/35

............------1111

JURIS DICTUMby Jim Petty

Executive Secretary, Judicial Department

JUDICIAL INFORMATION SYSTEMby Angela Jegley

Chief, Analytical Services Division

The Arkansas Judicial Departmentbegan development of a StatewideJudicial Information System (SJIS)project in October of 1977. The pur­pose of this article is to provide a broadoverview of the history and status of theproject, and to acquaint the legal pro­fession with the benefits and servicesavailable to the courts as a resultthereof.

The Judicial Department is chargedby statute with administration of thenonjudicial business of the state courtsystem. The office is directed to adviseand assist the Chief Justice of the Su­preme Court in order to better attend tothe business of all state courts.

One of the most visible statutoryfunctions of the Judicial Department isto prepare statistical data and reportsrelating to court activity. However, theDepartment has other statutory func­tions as well:

-Examine the administrativemethods of the courts and makerecommendations to the ChiefJustice for their improvement.

-Examine the state of the docketsof the courts; secure informationas to their needs for assistance, ifany; prepare statistical data andreports on the business of thecourts; and advise the Chief Jus­tice to the end that proper actionmay be taken where appropriate.

-Examine the statistical systems ofthe courts and make recommen­dations to the Chief Justice for auniform system of judicial statis­tics.

-Examine the estimates of thecourts of the state concerning ap­propriations, and develop re­

36/Arkansas Lawyer/January 1981

commendations for the Chief Jus­tice.

In order to more efficiently performthe aforementioned statutory duties,the department initiated the develop­ment of the SJIS Mini-Computer Proj­ect. The overall goals of the project is todevelop and establish a state-wide jud­icial information system for the purposeof achieving the following list of morespecific objectives:

1. To provide data regarding crimi­nal, civil, chancery, and probatecases.

2. To provide management-oriented statistical reports.

3. To develop the most feasiblemethods of supplying manage­ment-oriented statistical reportsto rural, non-automated circuit,chancery, and probate courts.

4. To improve both the amount andthe quality of judicial informationavailable to the Chief Justice andthe Executive Secretary of theJudicial Department.

5. To create a standardized report­ing system that allows caseloadsto be analyzed in a uniform man­ner.

SJIS SURVEYDuring the planning phase of the

SJIS Project. a thorough study of theexisting manual case-reporting systemwas made by the Systems Divisionstaff. Results of the survey were usedto establish user needs, procedures,and data requirements necessary toimplement an automated system ofdata collection. During the planningphase of the project, procedures for theflow of information were established;

data collection forms were designed; auser manual was completed; and initialprogramming tasks were completed.

Another task completed by the Judi­cial Department during the project wasthe acquisition of a Harris 1660 mini­computer along with operatingsoftware. The mini-computer is housedin Judicial Department offices, andsteps have been taken which insurethe security of the equipment. Backupmeasures have also been taken to in­sure that data will be retrievable in theevent of system failure. Additionalequipment acquired includes three re­mote terminals and printers that havebeen made available to counties thatagreed to bear maintenance and linecosts.

AUTOMATED SYSTEMDESCRIPTION

Collection of case statistics is ac­complished by the use of forms de­signed specifically for civil, criminalchancery, and probate case types. Thelocal clerks fills out forms on a case­by-case basis, reporting both filing anddisposition information. The clerk thenmails the forms to the Systems Divisionon a regular schedule as determinedby local need. This system is known asa batch reporting system and will bereferred to as such hereafter.

When a packet of the forms is re­ceived by the Systems Division, the in­formation is entered in the computer bya records clerk through Cathode RayTube (CRT) terminals. Checks aremade during data entry to insure thatthere are no duplicate or missing doc­ket numbers and that there are no otherobvious data errors.

THE LAWYERS CO-OPERATIVE PUBLISHING co.AqucduCI BUlld,ngRochester New York 14694

tomated reporting system produces amore specific breakdown of the typesof cases being filed. Chancerycase load is better defined becausere-opened cases can be accounted forin a timely and accurate manner as aresult of the automated system.

OVERVIEWIn summary, the Judicial Depart­

ment, in cooperation with judges andclerks, has designed and installed ajudicial information system that is cap­able of generating timely, accuratestatistical reports, and casemanagement-related information. Theinformation system has the advantageof being standardized, but the systemis flexible as well: this flexibility allowsthe system to expand to provide in­novative services to those judges whowish to avail themselves of such ser­vices. In keeping with the accomplish­ment of its statutory administrativeduties and the goals of the SJIS Mini­Computer Project, the Judicial De­partment is proceeding toward estab­lishment of a modern-day manage­ment tool which will be available for thebenefit of judges and support person­nel.I-

The Total Client-ServiceUbrary® System. More than justlawbooks: A Complete LegalResearch System.The TCSL System was developed by LawyersCo-op to fit the way today's Arkansas attorneyspractice law. No matter how or where you beginyour case research, special TCSL features auto­matically bring all other facets of the particularlegal problem to your attention.

For information on "The TCSL System"for Arkansas, contact your neorestLCP Representative:Northeast ArkansasJim Teator (501) 378-7038-Service

(501) 753-9123Southwest ArkansasCharles R. (80b) Lloyd (318) 222-3651Crittenden & Mississippi CountiesGeorge C. 81slg (502) 245-7223

and which require action by the court orby the parties: the judge can therebyform a more accurate picture of thecondition of his docket. Further, sum­mary reports are available by request,so the judge has at his disposal infor­mation that is more timely than thatcontained in quarterly or annual re­ports.

The Systems Division can also printcase control cards for the benefit ofthose judges who have case coor­dinators; case control cards allow thecoordinator to keep a record of thestatus of all cases, pending or termi­nated. Another of the data elementsthat appears on some of the printouts isthat of the attorney of record: theavailability of this information may be afactor in estimating the amount of timenecessary to hear a particular case.

Due to standardization of reportingprocedures, the automated systemproduces a more accurate reflection ofactual caseload, both for Circuit andChancery judges. For instance, thecriminal report form requires that multi­ple defendants be listed separately, theresult being that each defendant repre­sents a separate case for statisticalpurposes. The civil caseload is betterdelineated due to the fact that the au-

IMPLEMENTATIONThe automated system using batch

reports is currently being implementedon an incremental basis as a replace­ment to the manual case reporting sys­tem. Systems Division personnel areresponsible for implementing the au­tomated system. Each impiementationentails an in-depth review of the coun­ty's active cases, entry of the neces­sary data eiements related to eachcase onto the standard forms, andbatch input of the data on these formsinto the system. Staff personnel trainthe local court personnel in the use ofthe standardized forms.

Implementation of the project wasbegun in February, 1979 and at pre­sent 7 counties are participating: Polk,White, Prairie, Lonoke, Independence,Clehurne, and Stone. Implementationis ongoing in Pulaski County, and theproject schedule requires that four ad­ditional counties participate in the pro­gram. It is interesting to note that theoriginal goal called for implementationof the automated system in 6 countiesby the end of June, 1980; however, thatgoal has been surpassed and the proj­ect period will end with a total of 12counties participating. The long rangegoal is to implement the automatedsystem in all seventy-five counties inthe state.

PRINTOUTSThe system produces two types of

outputs: various summary and detailedlistings of case data and statistical datafor inclusion in the quarterly and annualreports.

Summary and detailed listings areproduced when requested, but userscan have standing requests for specificlistings on a periodic basis. The maincategories of printout are as follows:

-By case type-By circuit-By county-By age of case-By month and year-By litigants

Certain of the printouts have beendesigned at the request of the courtsand are disseminated for the benefit oflocal judges and other local court per­sonnel. These specialized printoutsare case management-oriented andhave been effectively used for man­agement purposes by court personnelin counties participating in the auto­mated system. For example, the activecase printout allows the local judge toidentify particular cases that may havebeen pending longer than necessary

January 1981/Arkansas Lawyer/37

ARKANSAS LAW SCHOOL

LIBRARIES

Because the law is in fact ever changing and because the rules ofpractice do evolve, those dealing with the law mustconstantly be made aware of changes as they occur. One must find those changes within the walls of the law library.For Arkansas attorneys there are two growing law libraries located on the campuses of the state's two law schools, theROBERT A. AND VIVIAN YOUNG LAW LIBRARY, Fayetteville, and UALR·PULASKI COUNTY LAW LIBRARY at Little Rock.This article will provide specific information concerning the two libraries.

SaturdaySunday

ROBERT A. & VIVIAN YOUNGLAW LIBRARY

UNIVERSITY OF ARKANSASSCHOOL OF LAW

Waterman HallFayetteville, Arkansas 72701

PHONE: (501) 575-5604

STAFF:The staff includes:George E. Skinner, Law Librarian

and Professor of LawRuby W. Biddle, Acquisitions and

PeriodicalsSusie Carlton, Cataloging AssistantDavid G. Cowan, Assistant Librarian

(Circulation, Reference and Audio Vis­ual Materials)

Gary R. Hartman, Assistant Libra­rian (Government Documents, Refer­ence and LEXIS Training)

Kathleen Luplow, SecretaryTerry McKinstry, Circulation Assis­

tantMaurice A. Pope, Associate Law lib­

rarian (Cataloging and Classification)

HOURS:Fall/Spring/Summer SemestersMonday - Thursday 8:00 a.m.

- 12:00 midnight• Friday 8:00 a.m.

- 11 :00 p.m.Saturday 9:00 a.m. - 5:00 p.m.Sunday 1:00 p.m. - 11 :00 p.m.38/Arkansas Lawyer/January 1981

Interims (Between Semesters)Monday - Friday 8:00 a,m.

- 4:30 p.m.CLOSEDCLOSED

During final examination periods, theLaw Library will extend its hours tomeet the needs of the law students.The Law Library is closed on UniversityHolidays.

'Summer - 5 p.m.

COLLECTION:As of June 30, 1980, the collection

size was reported to be 146,515 vol­umes. Comprising this collection are1,622 volumes of government docu­ments, approximately 8,000 volumesof microforms, 18,400 volumes of lawreviews and journals, and also numer­ous treatises, reporters, digests, sta­tutes and other needed research ma­terials.

State LegalResearch Materials

For ease of research in this area thecollection includes statutes, court rulesand Shepard's citators for all 50 states.The session laws for all states areavailable on microform for the years1970 to date. In addition, session lawsfor most states cover miscellaneousyears before 1970.

The library contains all early statereports prior to their inclusion in West'sNational Reporter System. In addition,more comprehensive holdings aremaintained for the states of New York,Ohio and Pennsylvania (including allPennsylvania Side Reports in hardcopy).

Research can be enhanced throughreference to more specific materialssuch as administrative rules and regu­lations, jury instructions, state and re-

gional digests and encyclopedias forseveral states.

PhotocopyingThe library photocopies cases, law

review articles, statutes or otherneeded materials. Requests may bemade by letter or by telephone. Thecharge for this service is .10 per pageplus postage. Any requests for exten­sive copying and research should bedirected to the Student ResearchBureau at the law school. The fee fortheir services is $6.00 per hour. Thelibrary staff is not permitted to do re­search work for attorneys.

Book LoansTextbooks and treatises not on re­

serve may be borrowed for a two-weekperiod.

Government DocumentsThe library is congressionally desig­

nated as a selective federal depositorylibrary and thus receives a selection ofU.S. government publications basedon a continuing order with the Govern­ment Printing Office. This collectionparticularly focuses on the publicationsof the Agriculture Department and theDepartment of Justice. Complete setsof bills and reports from both Houses ofCongress, as well as hearings fromselected committees, are received onmicrofiche. Some of the other impor­tant research materials available onmicrofiche are:

United States Code (1925 to Date)Code of Federal Regulations (1938 to

Date)Federal Register (1936 to Date)

Session Laws for all 50 States (1970 toDate)

U.S. Supreme Court Records andBriefs (1938 to Date)

Computerized ResearchThe library has access to LEXIS and

WESTLAW, automated legal researchsystems. LEXIS is available only to fa­culty and students for educational pur­poses and cannot be used for profit­producing research. WESTLAW isavailable for research under the aus­pices of the Student Bar at a cost of $80per hour, including student researchfees. For further information contactKENT JOLLIFF of the Student Bar orGARY HARTMAN of the library staff.

Phone (501) 371-1071

UNIVERSITY OF ARKANSAS

AT L1TILE ROCK

SCHOOL OF LAW LIBRARYPULASKI COUNTY LAW LIBRARY

400 West MarkhamLittle Rock, Arkansas 72201

STAFF:The staff includes:Ruth Brunson, Professor of Law and

Director of Law LibraryLambert DeCora, Associate Profes­

sor of Law and Assistant Director ofLaw Library

Sylvia Dresser, Assistantlibrarian-Acquisitions and Govern­ment Documents

Pauline Ghidotti, Assistant to theDirector-Acquisitions

Melanie Nelson, AssistantLibrarian-Catalog

Karen Stitsworth, AssistantLibrarian-Reference

Miriam Watkins, Assistant CatalogLibrarian

Gail Laster, Secretary

Due to the unique combined owner­ship of this library the collection in­cludes a large number of practice-or­iented materials not commonly found inUniversity Law Libraries. For example:Form Books, Arkansas Bar Associa­tion-Continuing Legal Education Sys­tems, a comprehensive collection ofPracticing Law Institute titles, tax titlesincluding looseleaf services and legis­lative histories, and a large collection ofcassette tapes covering nationwidelegal seminars and lectures on sub­jects of current interest. Cassette tapesmay be checked out for one weekperiods.

State Legal Research MaterialsThis collection includes codes or

statutes, court rules and current ses­sion laws for the 50 states. Additionalstate law finding aids such as lawlocators and Shepard's citators areconveniently located for ease of ac­cess.

The state court collection not onlyincludes West's National Reporter Sys­tem, but also the official state court de­cisions from all states prior to the dateof publication of that system. Currentholdings of the official reports beingmaintained include Arkansas Reports,Ohio State Reports, Pennsylvania Dis­trict and County Reports and Ok­lahoma Reports (Oklahoma Bar Jour­nal).

continued on page 40January 1981/Arkansas Lawyer/39

COLLECTION:As of September 30, 1980, the col­

lection size was reported to be 117,647volumes 83,111 volumes, UALR;34,536 volumes, Pulaski) includinggovernment documents, microforms,law review and journal titles as well asnumerous treatises, reporters, state,regional and federal digests, state andfederal statutes and other materialsneeded in daily research.

The library will be closed only onmajor holidays. Hours may vary duringschool vacations and the summerterms.

7:00 a.m.- 11 :00 p.m.

8:00 a.m. - 5:00 p.m.1:00 p.m.

- 11 :00 p.m.

HOURS:Monday - Friday

SaturdaySunday

Lawyers' Mart

· .. Law School Libraries,continued from page 39

Supplementing the West system areall in-print regional reporter digests.state digests for adjoining states andfor states not included in regional di­gests. In addition, the state law collec­tion includes such specific researchaids as administrative rules and regula­tions and jury instructions.

LIBRARY SERVICESTO THE ARKANSAS BAR

PhotocopyingCases, articles, statutes and other

materials will be photocopied upon re­quest. Both letter and telephone re­quests are accepted. Cost for this ser­vice is 1O¢ per page plus postage. Forattorneys' convenience, charge ac­counts billed on a monthly basis areavailable.

Request for extensive copies andresearch must be addressed to PatJames or Jackie Gillean. Student Re­search Pool, at the Law School. Thecharge for student research service is$6.00 an hour. Time and limited staff donot permit library personnel to engagein research work for attorneys.

Use of the CollectionSince the Law Library is currently

being operated as a research library,books and materials in the collectionmust be available for ready referenceand use at all times and may not bechecked out or removed from the li­brary.

Materials not available locally maybe ordered from cooperating librariesthrough the Inter-Library Loan system.Requests should be directed to the Re­ference Librarian.

Government Documents andMicroforms Collections

The UALR-Pulaski County Law Lib­rary receives federal government pub­lications under the Depository LibraryProgram. In addition to continuing pre­viously held sets of agency decisionsand reports. the program has ex­panded the scope of the collectionconsiderably. New items being re­ceived include court and crime statis­tics from the Department of Justice,40/Arkansas Lawyer/January 1981

LEAA materials, Census publications.import-export information from theDepartment of Commerce, and CivilRights Commission publications. Con­gressional· committee hearings are re­ceived as well as the reports preparedfor use in consideration of specificlegislation. and bills and resolutions.Reports and decision from severalagencies and courts are included in thecollection, such as ICC Reports, Courtof Claims Decisions. and FTC Reports.

The major federal research tools(current volumes of the Code of Fed­eral Regulations, current issues of theFederal Register, the CongressionalRecord, the U.S. Code. and the Stat­utes at Large) are housed in the mainlibrary. The balance of the collection ishoused in the basement of the OldFederal Building, or on microfiche inthe microforms collection. Access togovernment documents other thanspecific cases and decisions is ob­tained primarily through the MonthlyCatalog, which indexes publicationsfrom all parts of the federal governmentand the CIS Index which covers allcongressional publications from 1970to date. Both of these indexes are lo­cated in the government documents of­fice. which is in the Library Annex at theOld Federal Building. across from themicroforms room.

The microforms collection is com­prised of both microfilm and microfiche(4" x 6" sheets of film). Major collec­tions are the Records and Briefs of theU.S. Supreme Court. Session Laws forall states and territories, the FederalRegister from its beginning in 1938 to

BOOKS FOR SALE

S. W. Reporter (Arkansascases) 1st & 2nd Series. currentto date. Used only 9 months.NEW set over $2800.00. Willsell for $2000.00 cash or$400.00 and take over pay­ments. P.O. Box 406. Rison. Ar­kansas 71665, (501) 325-7510or 357-8174.

BOOKKEEPING

10 yrs. expo with attorneys­hourly or monthly rates.P. Bramlett-758-4859.

the present. To complement the con­gressional pUblications that are nowbeing received, a collection of pUblica­tions used by the congressional com­mittees in considering legislation since1970 has also been purchased.thereby greatly expanding legislativehistory research capabilities. Machinesto read and make paper copies of themicrofilm and microfiche are housed inthe same room. Copies are 10¢ perpage. and may be charged to an ac­count in the same manner as photo­copies.

Computerized Legal ResearchThe WESTLAW computer terminal.

conveniently located in an alcove nearthe fourth-floor entrance to the Law li­brary. is available for attorney. faculty.and student use. Free training ses­sions are offered on Tuesday andThursday afternoons from 3:30 - 5:00p.m. for attorneys and students on asign up basis by calling the law library.After training. a regular fee of $37.50up to 1{2 hour and $1.25 per minutethereafter is charged for on-line searchtime. West Publishing Company billsdirect to the customer at the end ofeach month. As an additional service,members of the Student ResearchPool do computer searches for attor­neys at the regular WESTLAW rateplus their charge of $6.00 per hour.WESTLAW is presently operationalfrom 8:00 a.m. to 10:00 p.m. Mondaythrough Friday and from 8:00 a.m. to2:00 p.m. on Saturday. " ....

20c per word

$5 minimum

POSITION AVAILABLE

Expanding law firm seekslawyers with one to three yearsexperience In corporate. tax,security, and construction lawareas. Advanced degrees willcount toward experience. Re­plies will be held in strictestconfidence. Salary commensu­rate with experience. Send res­ume to Post Office Box 5606.North Little Rock. Arkansas,72119.

Need an employee, a law book, or to sellbooks, elc.; use the Lawyers' Mart.

EXECUTIVE COUNCIL NOTESby W. Christopher Barrier

Secretary-Treasurer

MINUTES OF MEETINGEXECUTIVE COUNCIL

AUGUST 23,1980

The Executive Council met onSaturday, August 23, 1980, primarily tocomplete review of the Association'slegislative package. However, moretime was spent on other items, rangingfrom juvenile justice to retired lawyers,from the lofty to the practical. Therewere a number of contrasts and ironiesin the deliberations.

F.T.C., A.B.A. and C.L.E...The members were brought up to

date on the latest efforts of the FederalTrade Commission to extend its regula­tion of the learned professions. TheCouncil also grappled with the Ameri­can Bar Association's "Kutac" Report,dealing with how the profession wouldgovern itself, trying to determine how togive thoughtful consideration to theserious issues raised by the Report inthe short time remaining for commentto the ABA. On a lighter note, it wasalso announced that there would be acontinuing legal education program onethics and malpractice in conjunctionwith a forthcoming Caribbean cruise.

Constitutional Issues...Georgia Elrod of Siloam Springs

gave a thorough review of the pro­pesed Constitution of 1980, concen­trating on items of particular interest tolawyers. There seemed to be little out­right opposition to the proposed Con­stitution among the Council members,but some uncertainty as to whether theAssociation should in fact endorse it ortake a position at all. In any event, theYoung Lawyers Section, under BuckyJones of Forrest City, will try to educate

the public on the issues through aspeakers bureau.

Nuts and Bolts...The Council also considered a

number of other issues, including theplacing of systems on magnetic media;the "second chair" program for inex­perienced trial lawyers; long-rangeplanning; local Bar activities; federalpractice in Arkansas; a proposal withreference to the award of attorneys'fees; a possible "political" judicial pell;pending litigation involving alleged andunauthorized practice of law; the newFederal Criminal Code; and socialsecurity matters.

Legislation...Getting to its main business, the

Executive Council considered a widerange of legislation, little of which couldreally be considered as narrow"lawyers' bills" and some of whichwould actually reduce use of lawyers insome instances. The Council also con­sidered strategic questions on howbest to get the package across.

In this regard, although the Associa­tion's total membership is up, the con­tributions to Lawpac have been disap­pointing, giving lobbyist Jim Rhodesand legislative committee chairmanJoe Bell a big fire and a small bucket.

MINUTES OF MEETINGEXECUTIVE COUNCILSEPTEMBER 13, 1980

A special meeting of the ExecutiveCouncil and interested members of theHouse of Delegates and the Associa­tion generally was held on September13, 1980. The purpose of the meeting

was to do some last-minute work on thelegislative package in preparation forthe September 20 House of Delegatesmeeting. However, the major businessbefore the Council was considerationof the proposed "Kutak" revisions ofthe Code of Professionai Respensibil­ity, a comprehensive re-draft of theexisting Code. The draft met with littleenthusiasm among the members, for anumber of reasons.

The draft tends to make mandatorycertain activities which are simply ad­visable as a matter of business practiceor of professional responsibility. Speci­fically, the draft would mandate writtenfee contracts and a certain minimumlevel of pro bono work.

The draft would also make majorchanges in client-lawyer relations,without any expressed need for thechanges. The most important of thesedeal with disclosure of client confi­dences, which appear to have the po­tential for building in tensions betweenlawyers and their clients. The draft alsodeletes, without explanation, severalimportant provisions of the Code ofProfessional Responsibility.

The Council considered line by linefive of the ten sections of the proposeddraft, in the time it had available to it.

However, at this peint, it appearshighly unlikely that the draft (in anyform) will actually be adopted by theHouse of Delegates of the AmericanBar Association. What appears morelikely (and more to the liking of theExecutive Council) is that work will bedone to propose specific amendmentsrather than a wholesale revision.

In this regard, the Executive Counciladopted most of the recommendations

continued on page 42January 1981/Arkansas Lawyer/41

STATEMENT OF OWNERSHIP. MANAGEMENT AND CIRCULATION/Rrqllvnl by.J1J U.S.c. JUS}

... Council Notes,continued from page 41

of Frank Mackey, Jr.'s ProfessionalEthics and Grievances committee,which had labored long and hard inreviewing and analyzing the draft.

We may expect, however, to see theCode of Professional Responsibility asa major focus of attention in Bar ac­tivities for the next few years, much as itwas during the late 1960's when Ar­kansas' Ed Wright oversaw a majorupdating of the Code.

By a substantial margin, the Housevoted to endorse repeal of the "gueststatute", but delayed consideration ofthe Uniform Comparative Fault Act.

The Title Protection Act was en­dorsed and the Marketable RecordTitle Act will be back in the legislativepackage.

Without seeing the final draft, theHouse voted to endorse the proposedLandlord{Tenant Act, which had re-

ceived the attention of the Real EstateLaw Committee and the ConsumerLaw Committee. These two commit­tees apparently had arrived at a work­able compromise, one which wouldvery likely parallel the efforts of the At­torney General's Office as well.

Replevin legislation was on theagenda again, still another revisionbeing recommended, although pre­sumably not the last one. f-...

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ASSOCIATION OF ARKANSAS L WYERS

1. OWNUI (ffo'''ltU bJ" tOlJlOlfl/IOtl. III ""mt.1II/ .<hJrtU "'uJ' M I/.uJ.III/.1Jo 'm_dll/rly 11o..',ulll/", '10" ...",,,ulll/ lJurrun of."xk.ftoIdr" 0 ..."1,,, 0I1tu1iJ.", I ptrU'" or /nOI" of /01111 ........'" of"OCt. IfllOl o....'d bJ" rtNl'O'.IIO". 110, ",,,,,,,,,.1 .dJrtlJ,. of 110, 'II<1"·.<J....10""'" mUll"" ,'wn. If o...."u bJ" p;z1l"UIJup (), 0'10,., u",,,rotpontl,d fI,m. ill ...mt ."Ii rtJdrtll." ,.,,,1111110., of uell l"d,,,dllli m"m MI'~''''' If '11.. ""bl":-I",,, II publuJo<,d b,,, "O<Ip'ofil "',.."Wlliolt. "'1I<I"'t ."d ..JJrrJl m"., b" II."IL/

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THE ARKANSAS LAWYER IJ I Y Ib I -10 IY 10 I I 9/30/80

....N.. CO'N .. 'OlfO" (N._ _ Add"'''J

C. E. Ransick 400 West Markham, Little Rock, AR 72201

1:0"0 .. (N..... _ Add",..)

Co E. Ransick 400 West Markham, Little Rock, AR 72201

400 West Markham, Little Rock, Arkansas 72201

J o c 0 .. , ••uo: r"o 0'" , ••u~ 01 u ~ ."--.c T.O..

Quarterly ............1.10 .. 4 ' 'U$3.00 membe s•• LOCATIO.. 0 ......0 ...... O"...c. 0 ............CAT,o" (S"'-'. cu,.. c......"..•""u _ Zl,. Cod.' (No, JI..... ,...)

4nn WP~~ Markham Little Rock Pulaski Arkansas 72201 membe 5s. I.oc"'",o" 0 .. T" DO 0" O ,lI u O".. 'c•• 0" T'''' ," IlLtll /1'101 pNo,,,,}

,.U.LI...... (1~__ "'''''''_JArkansas Bar Association, 400 West Markham, Little Rock, AR 72201

The House of Delegates met in aspecial session on Saturday, Sep­tember 20, 1980, primarily to considerdevelopments with regard to the"Kutak" revisions for the Code of Pro-

MINUTES OF SPECIAL MEETINGHOUSE OF DELEGATES

SEPTEMBER 20, 1980

fessional Responsibility and to reviewthe legislative package. Additionally,the House also considered the pro­posed Constitution of 1980 and theprovisions which would provide thevoters with a choice of judicial selectionbetween merit selection and non­partisan election.

On the Code question, the Houseadopted a resolution previously pro­posed by the Executive Council, whichcalled for a longer period for review;rejected the revision approach as op­posed to selective amendment; andmade recommendations for amend­ments on five of the ten articles of therevised Code, as appropriate.

The proposed Constitution of 1980was endorsed by an almost unanimousvote. However, the proposed judicialselection article aroused a substantialamount of controversy. In the final vote,the merit selection system was en­dorsed by a vote of 25 for and 20against, non-partisan elections havingbeen defeated by a vote of 23 againstand 21 for.

II. FOR CO....lEr 'ON 'V O'UILI5..ERS MAII.ING ... T rHE REGUL ... 11 ......TEII (S'~llOft I U 121, 1'0.,aJ ...."'/c• .w.ftwall

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c. E. ll.1n:JI,;::c£%ecut!VU DLrecto~

(Set Instructions on rlnrsr)

~:".N"fU"".... 0 ... ITL.e 0" "'alTO .....u.L.I...~. 'U.'N"'••

.....~~?~ /.-'I. I ceuify th.l the statemtnr, made by meabo.'t lie correcl and compltlt.

~:":;;. 3526 (PllIt I)

Le9islation was recommended deal­ing with alimony, child support, prop­erly divisions and small claims, plus anumber of other similar housekeepingmeasures to simplify and clarify exist­ing law.

Several bills dealt with juvenile jus­tice, underlining the need for revision,both substantively and procedurally.

42/Arkansas Lawyer/January 1981

ADDENDAby C. E. Ransick

Editor

ARKANSAS LAWYERS HONORED

PATRICK H. HAYSElected Clerk of the

Assembly of the ABA'sYoung Lawyers Division

JOHN C. DEACONElected to ABA's

Board of Governors,representing 11th District

NEVA B. TALLEYReceived two ABAAwards for FamilyLaw Contributions

ALSTON JENNINGSSelected President-Elect

of the American College ofTrial Lawyers

ROBERT L. JONES, JR.Re-elected to Board ofDirectors of American

Judicature Society

E. CHARLES EICHENBAUMReappointed to chair

ABA Standing Committeeon Retirement of LawyersJanuary 1981jArkansas Lawyerj43

MYSTERY OF RISING CLAIMS AGAINST LAWYERS

ATTRACTS BAR STUDYParallel to the medical malpractice

and product liability crises, concernhas arisen recently about the upwardtrend in lawyers' professional liability.Thus far the problem has attracted littleattention outside the legal profession,whose members have had to pay morefor insurance protection and havesometimes had difficulty finding an in­surer. The public's interest, however, isaiso at stake, since more claimsagainst lawyers are bound to furthererode that confidence in the legal pro­fession that is an essential part of oursystem of administration of justice. Anew article by American Bar Founda­tion Research Attorney Werner Pfen­nigstorf, "Types and Causes of Law­yers' Professional Liability Claims: TheSearch for Facts," published in ABFResearch Journal, Vol. 1980, No.2,examines this development and dis­cusses the ways in which increasedknowledge of the nature and causes ofclaims can help reverse the trend.

There are indications that the rise inclaims is not caused by carelessnessor lack of competence on the part oflawyers, but rather by the increasingcomplexity of our economy and law,

TWO GREAT OPPORTUNITIES

The Comprehensive SequentialChecklist for the Lawyer Opening anOffice for the First Time is availableupon request, without cost, as long asthe supply lasts. This list was preparedby well-known lawyer Jay C. Foonberg,now Chairman, New Lawyers in Prac­tice Committee, Economics of LawPractice Section, American Bar Asso­ciation. Requests for copies of thechecklist should be directed to:

Stuart F. Cooper Co.Engravers-Printers­

LithographersLos Angeles, California

(1-800-421-8703)

The above is the best address avail­able.44/Arkansas Lawyer/January 1981

and the general trend toward more vig­orous assertion of individual rights andinterests. No one knows for sure, how­ever, and both lawyers and the publicare laboring under a number ofmisconceptions. A better under­standing of the claims that are madeagainst lawyers is indispensable forany meaningful effort to control the risk.

While the liability insurers wouldseem to be best equipped to collect theneeded information, the competitivesituation in the insurance market andthe relatively limited importance of thisline of business have so far discour­aged any effort to develop a nationwidesystem for collecting and reportingclaims data on the basis of a uniformclassification code. Thus, in 1978, theAmerican Bar Association's SpecialCommittee on Lawyers' ProfessionalResponsibility undertook the task ofdesigning such a system. In coopera­tion with leading insurers, the Commit­tee has developed a questionnaire(appended to Pfennigstorf's article)that is structured to provide a three­dimensional image of each claim: (1)the subject matter or field of law out ofwhich the claim arose; (2) the type of

National Car Rental has increasedthe over-the-counter discount for Ar­kansas Bar Association members from25% to 35% on its current regular timeand mileage rates in the United States,effective October 1, 1980.

E;lsewhere throughout the world, atEuropcar and National Internationallocations, a 10% discount off the thencurrent regular time and mileage ratesis available. In Canada, the affiliate Til­den Rent-a-car offers a $2.00 per daydiscount on the then current regularrates at most locations.

These discounts are available forbusiness or personal travel. If anymember does not have a National CarRental ID card, and wants one, call theMembership Secretary, Lisa Lewis atthe Association's offices.

activity or service the lawyer performedwhen committing the act or neglectcausing the claim, and (3) the type ofmistake, error, or misconduct on whichthe claim is based. Questionnaires arecompleted by the insurers for eachclaim, and the accumulated data willthen be tabulated and presented in anumber of ways and combinationsshowing interrelationships betweenany of the elements included in thequestionnaire.

The Committee hopes that as a re­sult of more meaningful and accurateinformation individual lawyers will de­velop not only a basic awareness of therisks of liability but also a more activeinterest in loss prevention programs.Pfennigstorf cautions, however, that"the collection and dissemination ofdata is only the first step and can havean effect only if followed by well­designed and aggressively promotededucational and motivating programs,"and reiterates the value of the programas a source of information for thoseconcerned with the delivery of legalservices and the administration of jus­tice.

COVER STORY

The cover photograph is the shot forthe paper cover of "On the CourthouseSquare" by John and Marjem Gill-abook about 107 Arkansas court­houses, complete with photographsand historical data. In The ArkansasLawyer, October 1980, at page 209,Robert S. McCord's book review of "Onthe Courthouse Square" is published.Arkansas needs historical books of thisnature. Other States literally aboundwith writings about them, e.g., in In­diana, one library holds some 40,000historical books on Indiana and itspeople. The Gills are to be congratu­lated for their related efforts-and for"On the Courthouse Square." ,.,

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MIDYEAR MEETINGCamelot Inn, Little Rock

January 15-17, 1981

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February 19-21, 1981

WORKERS' COMPENSATION SEMINARCamelot Inn, Little Rock

March 27, 1981

ANNUAL MEETINGArlington Hotel, Hot Springs

June 3-6, 1981