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March 1992 Volume53. Number2 bor-"'Y-1 t,y The_.,,.... s,,,,,, eo,.., --·-·-,Po . Bo••1se, Momgome,y. Alaboma36101-- ONTHE COVER: Dogwoodsin bloomin MontgomeryCounty signal that spring will P1>ooo(205) 209-1515. FAX (205) 269-1501. soonarrive. Photoby Butch Guier,Nontgomerg ROOIN1"-· Huttlke< .,,.,,_...... - ...... - ...Ed.tor Susan Stwock DoPaot.a...... Associate Editor M1rga101M u,phy...... ·-·-··"·--·- ·····.ManagingEditor
INSIDE THIS ISSUE: Botrd ol Edilort CtalOCl Cornw.C.Mol'IIOOfl't'Y • Forrn t S l.im:a, Mobllf • A1'drtw P C.ml)Otll ~ham • W Seea;rs8arn,n., .- ., Legal Services Corporntion or AlabamaContinues its Effor1slo ProvideQualit y Alttat'l(le, Clf)' • M~ A M.. . Bfmi,!ghlm • Md\ael L LegalServices to Needy Persons C"'1-- ·W•lamC Poll. Mo1,oo,:141'J• WillllfflJ unc.wooo.TUSQJfflbiil • Jef. By Penng 100 --·J Weaver...... UOl"*'G... L l-A. Mal'lclnl. -lo·. ~ Alo>L • Allrt-··" T. Aoge,I..· - Bic;.Wi9MA ·• J. £ ...... J, - · ..... LitigatingM inority ShareholderRights and the NewTort orOppressi .on H~W~Motc r•JDMW~IBin'l'I,,0.T-.-· By AndTl!lllP. Campbell...... 108 --e.i,,, .,,,.••• ""'0 sr.ny- ~....., ,,- _Flcw...:ie .- • La,raJ."""' Pd...... ".,.,.A.~ ...... •Hot\.~ Smar1 MO\'u lo Beat the Recession: HowYour Legal Suppor1S taff A.Coilall..T~•s...nE ~ Can Makea Difference ...... eo...... , .. .. UrlNn ~A.~ Jr Simw,o.'am By Mory Jo Dennis...... - .. 120 The Rule on Exclusion or Witnesses-Beyondthe Courb'OOm By). lister Hubbard...... 126 80.rd ol ComrnlHlontn 111OifWll. l!Ciw.,d pt r~ . Ji, CMIIOffl• 2nd On:ull. Jcihn A, l&llol• I.UY.,,_ • :lfd OlrCIIII,Lynn Robertson Ja,e;.aon, Clay1on • 4th Qcuft. Joh" W l<•l!r, Ill, Selma • 5th C..ailt.. JOIWIF. Oillo,\ rv. AM1allClt1Oily • 61h Clrwh, Pf.teeNo ,. President's Page...... 92 CLE Opporlunilies...... 124 w...,P Crownovtf . Tutt.111100ta• 6lTt CW:llif.. Plac:. Ho Z Jo"" II..0.-...... fuaclloota • ?lh e«cu11.,Anhiw F Ale, 111, ExecutiveOirec.tor·s Report ...... 94 VolunteerLawyers Program ...... 129 Nw!IIUO"• ttn Circuit.AJ Colitrnan.Oecall!r • 9ltl Corcu!I. WNffl O So\lCIQII.Jt. '°"P1)'1"11 • 100'!On:uit. Plec'ANo 1, Ridingthe Circuits ...... 95 DisciplinaryReport ...... 131 s.mi.llf H ,~ ~ • llllh Circuit.ptce No t. JarMt W 0.- I~• 10ll CltM, Pllloe No. :I. Bar Briers...... - .... - ....96 Opinionsof the Ceneral Counsel ..... 132 J411!14'1• • Uo,,t 81,r,,..,. • 10lh CMam, Place hO '· s.i..-A. """"' · .a ~ . lOtl Ota.&. pi.,. No. YoungLawyers' Section ...... 99 RecentDecisions ...... 134 S.1- L --·100,,- ..... Nof. 0.. L. ... i . .. HWIQI.... • 10.. C::-0.. f"llc:9 Ni:,, 1, J. Legislati~\Vrap-Up ...... 102 Consultant'sComu ...... 140 .,._. °""'- ••• ..... • IOfl.(:jifr(:uC,PlllCe Ho. I. D'aytOn H ...... _.,. ... ,.1,-,a.a...""'°'Ho.9.C...,,S. BuildingAlabama's Courthouses ...... 104 Major Legislationof Interest...... 142 ...... ,, ••• ·- 0.0...... ();11.()a: GeOt;e 19001• 11...... 11th C.WC.11ober\M. .. ,It AboutMembers , AmongFirms ...... J16 Memorials...... 156 Anno,• 129 QIQ,c, W Kae W'llllutla.Tro, • l3llt ClroA, Plrc9,. I. VcaH. L-.Jt ...._. tlllCft:ul.Pw»No BuildingFund HonorRoll ...... 129 ClassifiedNotices ...... 159 %,.&ro. Q ...,._ ~ • 1311 Oro.Ill.,,._Ho. 3, Lany U Sima.~ • t,U, Circuit, Pt.ot No • Benjamen T l\cltlir9.Mc:iOllt • ''"' (llr(ult. Jeny IC.SehiM . Jl$;lel' • 15th AIAIIAMASTATE BAR HIW>Q UARTERSSTAFF ~ PIIICeNo 1, RICNtd H 0-. MOt'lgOtl'ltry • 151ha, . 415Dmdtr A1'<1'U C.Montgomery. AL 36104 (205) 269 ,1515 CUC, Pl,ot No 2. Wlf'IOI Q DtYefNut. ~ • 15CII ~It. PIACtN o S.J.,,.. A. SNle, Momgorriery • 151h Ct'· t:x«u1l\'I!Dlr « tor .. - --·····- Rti,1inaldT . Hi'mnt:r. CA& PiNn~~I Secrtlary ...... -- ..·-·· ·----·· ·- ·Cal, SklnN!r CUI, Pl4loe"° , ,ME NI._Jf • 16111C.a,11, GtorQt P Food, Oln:Cllor o(Prognmu...... ,...... Keith6. Norm.an UIW)"t'rKrfett11I Stc,11u,y ...... Ktl hcnnt C. c,,amcr o.dlctl" • 1711\O,OUb , RGulld S, Mt1"1er, Df,mopol15• 18ltl C,;rouil, Conr11dM Fowle,. Jt., Columbliilf'\4• 191hCitc!Ail, J f.llt
90 I M arch I 992 THE ALABAMALAWYER
PRESIDENT'S PAGE
here is the justice system going in Alabama? avalancheo f criminal cases? Is it acceptableto you to have a When our unified court system was established civil system so backlogged that civil litigants must wait sever in the mid-l 970s, it becamea national model for al years beforetheir cases can be heard? m the modem, efficientadministration of justice. I I submit the answer to both questions is ''no". If the court am told that the Alabamamode l has been copied in whole or system in Alabama cannot continue to operate in an efficient, in part by many of our sister stales. The Alabamaunified judi effective manner. I fear that we will have, on the criminal cial system has been something in which we lawyers, as offi side, increasedlawlessne.ss, and on the civil side, ~')lnicism and cers of the court, have taken great pride. contempt for the jud icial process and all of us who are The past two years have been times of great monetary and involvedin the process. budgetaryc rises in our state. We have experienceds ignificant Judicial funding currently comprises only about I percent proration in most areas of state government, including the of the total tax revenues receivedby our state and about 12 judicial system. In fiscalyear 1991, after its budget had been percent or the revenues receivedby the general fund. approvedby the Legislature, our judicial Alabama's judicia l system annually system was required to accept about a 2.6 involvesa huge segment of our popula percent cut in funding because of prora· tion. Last year, over 77,000 Alabamians lion. served on jury duty. Our circuit courts This year, Alabama Supreme Court disposed of 162,000 cases during 1991. Chief Justice Sonny Hornsby, as head of Last year, 93 percent or the total monies our system, has been advised that an expended in the operation of the judicial additiona l 5 percent reduct ion in the system went for personne l costs and appropriation for fiscal year 1993 will be juror costs. Our system simply does not forthcoming for our court system. I sub have a whole lot of fat to trim. I believe mit to you that we. as lawyers, cannot that continued cuts will necessarily have silently stand by and allowAlabama's sys an effecto n the administration of justice. tem or justice to fall victim to the politi I submit that a reasonable approach to cian's knife. funding the three branches of our gov The Constitution of Alabama clearly ernment would be as follows:(I) fund the mandates that this branch of government legislative branch so that it might effec shall be one of three separate and co tively and efficiently carry out its consti equal branches of government. Unfortu Phillip E. Adams , Jr. tutional functions; (2) fund the judidal nately, I am afraid that the justice system branch so that the needs of the system of in our state is misperceivedby the execu· justice in our state would be met; and (3) tive branch and by many within the leg- appropriate all remaining monies to the islativebranch as another "agency"of state government.I( we. executive branch to use in funding its different departments as lawyers,a llow this misperceptionto continue I fear that the and agencies. If this approachwas followed,in 1992 the exec third critical branch of government will not be able to operate utive branch would receive about 86 percent of the general effectively, thus causing the entire governmentalsystem to be fund revenue for its purposes. I believethat lawyersmust take out of balanceand at risk of grinding to a halt. the lead in convincing the public and our policy-makers that Chief Justice Hornsby recently told a gathering of circuit this type of funding is a politicallysignificant issue. and district judges that projected cuts will involve laying off My function. as I see it, is to alert you to this crisis and tell between200-300 peop le in the 74 county courthouses in our you that only through a concerted effort by all lawyersin our state. Chief Justice Hornsby, I think, appropriately pointed state are we likelyto achieve any significantresults . out that the Constitution of Alabama requires that justice be 1urge each of you to take whateveract ion you deem appro administered without delayand accurately observedthat this priate to help influence the decision-makers in our state to constitutional requirement was bigger than any individual. act responsibly. This might include writing or calling your ChiefJustice Hornsbystated that all Alabamiansmust work to senator or representativeand explaining why Alabamashou ld insure that the justice system receiveadequate and reasonable not reverse the positive direction of our judicial branch of funding from the legislature. government by reducing the already small porlion or state Ask yourself these questions: Is it acceptableto you as an revenues it receives. officer of the court that Alabama's version of democracy We all took an oath to support the Constitution of our state. might require district attorneys to have to furlough employ That document mandates adequate funding for the judicial ees or have to make a "deal'' in all but the most extreme cir branch of government cumstances in order to stay ahead of the ever-present Pleaseact now. • 92 I March 1992 THE ALABAMALAWYER What's most important to you ...
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his column quite possibly will strike you as char· reach a respectable participation level. I never expected 100 acteristicallyunlike most that I have written for percent participation.but I never dreamed,a ,ear into the pro The Alabama lawyer. I write it in a mood that I ject. "" would have less than 20 percent of the bar member do not usuallyallow mysel( to fall int~namely, ship pledgeand contribute lo this effort. DJ If pessimismand bewilderment.. lhis associationdid not sel'\oeits members daily in meeting l'or several years, I have read and heard discussed the lheir personaland professionalneeds or if the membershipsur declineo f legal professionalism,the laments of lawyersdecl)' veys had not indicated98 percent-plussatisfaction with our bar ing a downward spiral in the quality of services. I could understand the low par their lifestyle due to professional 11res ticipation. I kno w our state's nnd nation's sures, and overt criticism of the juslice economiesare in a recession but nol to the system of whichwe are all a part. extent that 80 percent of our members One means by which some bar associa. cannot contribute to this professional Lionshave sought lo address these issues effort. is through the adoption of a Codeof Prac· Maybe Zona l-losteUer. cha Ir of the lice (for lack of a better descriptlooJ.The AmericanBar Association'sSpecial Coor common denominatorof all such efforts is dinating Committee on Professionalism, a return to courtesy, civility, caring and identified our problem in the January just plain good manners. "Commitment" 1992A8.4 Journal. In her perceptivepiece, Is another suggested trait sorely needed. she noted . "Bar organizations arc no I have served th is association long longer Lhe center of professional life." 1 enough to have witnessed firsthand the commend her entire comment lo your changes in attitude in the AlabamaState reading. I( you do nol receive the ABA Bar. Only recently did I diSCO\'frmy pre· Journal, write me and I will send you a decessor, John Scott, wrote in an early copy of her essay. It is headed "Too Many Alabama Slate Bar FoundationBulletin Regina ld T . Hamner Lawyers?"with the subtitle "Restoring about the profession's loss of collegiality Our Sense of Community". and expressed his concerns al that time You may not view the Alabama State almost 30 years ago. I-lewas noting that in an earlier lime Bar as the center of your professionalli fe and, lherefore. feel when a lawyer died, the whole l)ench and bar in the circuit no obligation to financiallys u11port its undertakings. forlu · would attend the funeral. But. even then, as he wrote in lhe nately for you, those who preceded you shared a differentview. mid-60s. such was a declining practice. Today, you practice In one of the nation's finest constituted I discoveredJudge 's comments while reviewinghis earlier court systemswith more opportunitiesfor professionalgrowth efforts to encourage the members of the bar to assist in the ini and fulfillment than those whose visions made these thin~ tial rundraising effort that led to our first bar headquarters possiblecould have everdreamed. Let us hopethose laW) 94 / March 1992 THE ALABAMALAWYER RIDING THE CIRCUITS Mobile Bar Association BAR The following are the 1992 officers of the Mobile Bar Association: President: ...... Jerry A.McDowell DIRECTORIES President-elect ...... Thomas E. Bryant,Jr. Vice-president:...... 0. RichardBounds Bar directories came out Secretary:...... Frank Woodson, Jr. last month . Treasurer:...... M. KathleenMiller Extra cop ies are $15 each. Send checks or money orders to: The following are /he new officers of the MBA Young Lawyers· Seelion for 1992: Alabama Bar Directory President:...... Mark C. Wolfe P.O. Box 4156 Vice-president:...... Judson W.We lls Montgomery, Al 36101 Secretary/treasurer:...... Jeffrey L. Luther The AlabamaS tate Bar • Endorsed InsuranceProgram s • FAMILY Lu'E L"SURANcEfcatUICS benefits for both eligible members, spouses, children and employees. lSl Available through NonJ1westemNational Life InsuranceCompa ny. • MAJORMeo,cAL INSURANCE provides benefits for both cl igiblc members,spouses. children and employ ees to $2,000,000. Availablethrough ComincntalCasua lly Company. • HosPrrALlr,.'Ol!Ml •ffrY pays daily benefitsup to 500 days with a maxunumof $300 per day. AcccpUUlceGuaranteed to eligible membersunder age 60 who are either workingor auending school full-lime. Available r.hroughCommercia l Life Insurance Company. • ACCIDENTALDEATII ANDDISM£Mlll!RM:£NT INSURANCEprovides coverage for accidental loss of life. sight, speech, hearingor dismemberment. Benefitamounts 10 $250,000 available. This is available through CommercialLife InsuranceCompany. • D1SAB1LITVINCOME features "Your Own Specialty" dcfinilionof disability as well as coverage for panial disabiliLies. Benefits available 10 80% of your income in most cases. Availablethrough CommercialLife and its parent company UNUM. • OmcE OVERl{llAJ)EXPEi/SE reimbursesyou r eligible businessexpenses . Available 10 eligible membersunder age 60 who arc engaged in full-time practice and not on full-Lime duty with any of the armed forces through Commercial Life and its parcm companyUNUM. ~or additional infonnarion~o-;;-t:C-t;------ALAB~t,"';:S ~Ai"EBA;- - - - -i J William K. Bass, Jr. Please send mo informationabout tho AssociationGroup Plan clleel THE AI.ABAMALAWYER March 1992/ 95 BAR BRIEFS Noojln installed as president and the American Judicature Society. Tobieto assist attorneysin ~ighing tht of Birmingham Bar and he was chairperson of the Task Impactor future caseson their practice Association Force on LegalServices to the Poor. and preparing them for possible out Ray0. Noojin.Jr. Since 1980, Noojinhas servedon the comes. was installed re· Executive Committee or the Jefferson West's Supreme Court Reporter ad cently as president County Chapter o( the University of vancesheets also provideattorneys with or the Birmingham AlabamaAlumni Association.where he the text, case synopsesa nd KeyNumber Bar Association. was president in 1986. He has also hcadnotes to recently released U.S. Noojin,a partner in served on numerous other commillees Supreme Court decisions. the firm of Hare, and boardsin Birmingham. Wynn. Newell & Insurancematenal added to WEST Newton. graduated Announcements from LAW from the Universityor Alabamain 1967. West Publishing A new database, llnndbookon lnsur- He e.,rned his law degree from the Uni 1mceCoverage D isputes, will be added versity'sSchool of Lawin 1970. West provides complete U.S. soon to WESTLAW.the comp uter Noojin has served on the Executive SupremeCourl Coverage assisted legal research service from Committee,the NomlnalingCommittee \Vest's Supreme Court Reporter West.The databaseis providedthrough anti the GrievanceCommittee. advancesheets. publishedby WestPub an agreement betweenWest Publishing lie has se"'-edon the board of gO\·er lishing Company, now record cases Company and Prentice Hall Law & nors of the AlabamaTrial LawyersAsso which the U.S. Supreme Court has Business,Inc. ciillion since 1979 and is a member of agreed to review. Thesecases are includ The handbook will be found in the the AmericanTrial LawyersAssociation ed in the Cumulative Cases Affected ICDdatabase and contain the full text of EXPERT MEDICAL TESTIMONY • AttdlC1ionMecll clr.e •FamilyP..- • N~11ropathology • Ped~,,..,Cntleal C.re • AIHOMedicin e • Fott!MiCDISOfltOIOQY • Nturopsychology • Pediatric O~rm111oloay " . . ' • Allergy • Gasuoemerotogy • Nturo • !JysmOIJ)hOI09)' • Ma1ttnal•ftlalMed lcllM , Palnol09)' • PenoclonUcs I II • ' '. • Ele 96 / March 1992 THEALABAMA LAWYER the treatise, second edil ion, by Barry R. lege Concerning Improperly Obtained Ostrager and Thomas R. Newman. ll Evidence", has been substantia lly includes all treatise secUons, the pref. revised to focus on the exclusionary ace/acknowledgement and the main remedy of what constitutes illegality in NOTICE table of contents. obtaining evidence. For more information, call 1-800· Residual hearsay exceptionscoverage 937-8529. has been substantially expanded and 1991-92 new sections havebeen addedon the use Text and periodicals research capa o( excited utterances and other hearsay Occupational bilities expanded on WESTLAW exceptions in sexual abuse cases and West recently expanded capabilities impeachmentof a hearsaydeclarant Licenseor Special on WESTJ..AW. The databases cover a For more information. call 1-800- range of law reviews and pcriodic.,lsin 328-9352. MembershipDues the followingsubject areas: businesslaw Stutts se lected pre sident of WereDue civil rights law ADLA corp0rate law The Alabama De October1, 1991 entertainment and sports law fense LawyersAsso· environmentallaw and land use ciation announced foodand drug law recently that Birrn Thisis a reminder 1ha1all I '191,92 franchiselaw i ngham allorney Alabama attorney 's o,cupatlonal international and comparativelaw Eugene P. Stutt s license and specla l member,h,ps lawand feminism was chosen to serve EXPIREDSeptember 30, 199 1 lawand health as president during Sectoons 40 · 12-49, 34-)- 17 and law and medicine the term 1991-92. 34-3-16, Code of 11/nbamn, I 975, n, law and technology The associat ion is made up of trial ame nded. set for lh the s1J 1u101y legal ethics h1wyerswho are engaged in civil Ii tiga requirements fo, licensing and mem, military law tion, primarily on the side of the defen bership fn the Alabama Stnll' B~r. public policy dant, represenling corporations. busi Licenses or special membe rship dues Backgroundinforma tion on each new nessesand insurancecompa nies. are payab le between October I ,,nd database is included in the ntlached Slulb is a graduate of the University Oc tober 31, wflhnut 1>ennlfy. These summary. For more information,ca ll 1- o( Alabamaan d has practiced in Birm dues include a !. IS an nual subscrip . 800-937-8529. ingham since 1969. He is a partner in tion to The A!.,bamn lawy,1r. the firm or Spain, Cillon. Crooms, Blan The occupational liceose ( for Addition of statutes completes & Nettles,and is a member of the Amer those engaged on the ao,ve practice WESTLAWcoverage of all SOstates ican Bar Association, AlabamaState Bar oi law and not exempt from licens Statutes for all 50 states, plus four and the BirminghamBar Association. ong by v1r1ue of a posi1lon h~ld, i.e., United Stales territories, are now avail President-elect of the association is Judgeships. auornevs general , U.S. able on WESTLAWwith the recent addi Davis Carr of Mobile. and Richard S. attorneys , dlsirlcl a11orney; , ~tc .) tion of the Montana and North Dakota Manleyof Demopolisis the new secre should be purchaw,d from the J>rO· statutes. The four territories include the tary-treasurer. bate judge or revenue comm,sslooer District of Columbia. Guam. Puerto in the city or town in which the Ricoand the VirginIslands. Thagard admitted t o ACTL lawyer has his or h;,r prorl('lpal office For more information, call 1-800- TholllilSW . Thagard. Jr• • a partner in The cost of 1his license is S 1 SO plus 937-8529. the Montgomeryoffice oi Balch & Bing the nommal county 1ssu.1rl('efees . ham, has become a Fellowof the Ameri Special membership dues (for McCormick on Eviden ce, 4th can College of Trial Lawyers.The col those no1 engaged in lhl' .ictive prac• now available lege is a national association of 4,500 1;cc of la\'\• but d~irrng 10 mdlnt.)in West announces the release of Fellowsin the United States and Cana an act,ve membe THEALABAMA LAWYER March1992 / 97 Orga nization set up to serve (i.e., government , private law firms, Anymember of the bar or community deaf and hearing -impaired corporations or law students, etc.) are may contribute to the fund in memory The passage of the Americans with wanted. Hearing attorneys with the of deceasedjudges . Additionally, upon DisabilitiesAct , (ADA)P .L. 101-336, has ability to communicate with deaf or the death of a circuit judge, the Associa opened new legal avenues for deaf and hearing-impaired persons and those tion of Alabama Circuit Judges will con hearing-i mpaired people throughout attorneys whose officesare accessibleto tribute Sl,000 to the fund in memory of the country. A group of attorneys , deaf and hearing-impaired clients are the deceasedjudge. including deaf, hearing-impaired and also strongly encouragedto join. The recipient of the scholarship ,viii hearing attorneys wishing to serve the A national meeting is tentatively be selected by the scholarship board of deaf and hearing-impaired population, being planned for late June 1992 in trustees who are appointed by the presi is setting up a new national legal non Denver. Por more information contact dent of the Alabama Association of Cir profit organization. Leonard Hall at (913) 782-2600vrroo. cuit Judges. Students who are Alabama Some of the initial goals of this new The organization's mailing address is residents will be awarded the scholar organization include, but are not limit P.O. Box 106, Olathe. Kansas 66061• ship based upon academic ability and ed to: 0106. need. At least one scholarship will be 1. Providing information relating to awarded beginning with the 1992-93 deaf issues of ADAand related fields for Scholarship fund established academicyear. attorneys and judges wishing to know by circuit judges Por more information, contact Judge more about these areas. The Alabama Association of Circuit Inge Johnson at P.O. Box 191, Tus 2. Providinga national referral list of Judges recently established a scholar· cumbia. Alabama35674. atto rneys able to serve the deaf and ship fund lo promote the education of hearing-impairedpopulace. Any organ i deservingst udents and honor the mem December 1991 admittees zatio n serving the deaf or hearing ory of deceasedAlabama ci rcuit judges. Francis Gilbert Davis, Jr. impaired community may use this The fund was created initially by a Dallas, Texas referral I ist for its members. g ift from the Alabama Association of RussellLee Irby, Ill 3. Meeting at least annually to learn Circuit Judges, and all interest and Eufaula,Alabama how to better serve the deaf and hear income earned by the fund will be used Elliott Britton Monroe ing-impaired community. to award scholarships to students pur Los Angeles, California Deaf and hearing-impaired attorneys suing law school studies. James Lynn Perry Pascagoula,Mississ ippi Jean Marguerite Powers Atlanta, Georgia The MeathPitzgerald Trousda le Prepare simple or comple.t ll'ills in Florence.Alabama Alabama 111inutes\Vith A 110111eys'Con1pu1er Nt•l• work software. 77,e .mue-specific October 1991 admittee omitted Wi1¥Lu,rary progmms ask 11111/riple-choice a11dfi// i11-rhe-b/011kquestions, rlle11compose tailored documems u4,ichcan be edit• Expe~stems e,I with your f8M -compatible word To~mble pro,·essi11gsoftware. Userfriendl y. 110 DocQ.1J1ents co111111011d.r to learn. '' ·,;,·, w' j . The WUls Librnrytswide \'a riety of provision't ~./! includes: ,, • Separated1:.posil ions or • Gran1ingand exer cise or • ~1nrital dcduc-11ontru sls. ' personal effects andrealty poy.·crsof appoin1ment wilh QTJJ> pf'O\•isions • Cashbeq uests • Credite:quivalc nc.yl ru$l$ • Purchit'-Cofn. nnuitics • Othertypc:s <>fdL ,;pos_itions. The programsol'iO prepare: John AndrewCaddell (1933), John Bell • Uving willdcc larmions • Family treenffidnv its • Execution eht"t'klists Caddell( 1991)andThomasA Caddell • Pow-ersof .auorney • A~set surnmarics • Clienti nterviewques tionnaires (1960)(grandfather, admilleeand uncle) The WillsLtbmry i.s on ly oneo r Ci51:11:c-specifi c libr.tries byN:.N. including: lnttr Vh-os1 ·nL'it.s; Houst. Condo liilndCo tn1 Rtal E.\U1tcSalc.~Con1rac:ts;Omccand Store I.AaseRid ers: Ne1 1..caM"S;Linlit cd Partnerships: Com'I~ ·lor1gngts/Dttd s or1·rust:BusiJi o:s Sales; St paru Oops! llon Agree.men1s; Shareholdrr A,:trttmcnts; and n.1orr. ln the January 1992Alabama lawyer , Onl y $200 eac h , with fre e updat es for th e fir st year . KellieNabors Mulherin was accidentally left off the list of new admittees to the Call Bem,ce William~ m 800-221-2972. Specify S \4• or 3 !h" disk. bar. The editors regret any inconve E;ccelslor-LegQI,Inc~ · 62 WhileS t .. New ,ork, NY 10013 nience or embarrassment this may have (WO) 221•2972F,\X (2 12) 431-5111 caused. • 98 / March 1992 THE ALABAMALAWYE R YOUNGLAWYERS' SECTION By /(EITII 8. NORMAN,president Committee Focus - Disaster Response Alabamacoordinator; YLSExecutive Com mittee member Trip An important committee o( the Young Lawyers'Section is Walton of Opelika is lhe east Alabama coordinator; and com· the Disaster ResponseCommittee chaired by Judson Wells o( mittee chair Judson Wellsor Mobile serves as the south Alaba Mobile. While it is the committee which we hope is never ma coordinator. called to action. the purpose or the Disaster Response Com· Our slate's efforts coincide with the efforts of lhe Young mittee is to assist victims or natural disasters. including LawyersDivision or lhe AmericanBar Association.The YLO's Ooods,hurricanes or tomados. The rurrent YLScommittee is Disaster Legal AssistanceCommittee has been working with an integral part of the AlabamaState Bar's Disaster Response stale affiliatesthroughout the nation and lhe F'ederalt:mer - Pinn which was designed by the bar's Task gency ManagementAgency lo provide a F'orce on Disaster Response and recom· national network of legal assistance in mended lo the board of bar commission· the event of a disaster. Presently, we are ers for implementation.The plan that was one of 11 state young lawyer afrillates recommended by the bar's task force was which have a disaster response commit· approvedlast Octoberby the board. tee and plan in place. or all the estab lished state plans, I beliew the Alabama Multi -faceted approach network to provide legal assistance to TheAlabama State Bar's Task ~·orceon disaster victims to be the model and best Disaster Response,cha .ired by Richard F. plan or them all. This is something of Allen of Montgomery, developed a com which we can be truly proud. prehensive plan lo respond in the event or As previously mentioned, the Disaster a disaster. The plan incorporates thr ee Response Committee is one committee plans which are: (I) a network lo provide lhnt we hope never has to function. Yet. legal assistance to victims; (2) a parachute we all know thnt a disaster can strike nl lawyer plan: and (3) reconstitutlonal or any moment, so we must be prepared local bar and local judiciary.The Y1..Spar Keith 8 . Norman when it does. The ability or lhis commit ticipation in\'olves the first prong or this tee to successfullycarry out its mission plan - the network to provide legal assis• depends on the willingnessof YLSmem • tance to victims. bers, when called on, to volunteer and The plan that is conceivedby lhe slate bar's task force antic participate. Iryou would like to have )'Our name included on a ipates lhat the bar will be notified by the AlabamaEmergency list or lawyerswho will volunteer to providelegal assistance to Management Agency (AEMA)imm ediately upon the occur disaster victims, contact me or the YLScoordinator for your rence or a disaster. The AEMAcontacts the officeof the attor area. Youmay also volunteer for service in this regard by hnv· ney general and the Alabama National Cuard, which have ing your name included through the AlabamaStale Bar Vol· been de5ignated for on-site damage assessment in coordina unteer Lawyers Program. To be included through the Vl,P, tion with assistance. On appropriate determination. volunteer contact the program's director, Melinda Waters. al lhe state lawyerswill maintain a desk at the disaster assistance center bar headquarters. in the locale affected. Volunteer lawyers will be provided In Remember that disaster can strike al any time. We need cooperationwilh the YLS, in addition to those who volunteer your help. so \!Olunteerlo be a part or the network to provide for service. For Lhe purpose of this plan, the stale has been legal assistanceto disaster victims. • divided Into Four geographic regions. and a YLS volunteer coordinator has been assigned (or each region. ILis conceived under the plan that the coordinator identifieslawyers who are S1J'.'dll!W!lgIn ExpertTeslimony willing to participateand puts them in touch with the person In al the dis.'15terlocation who schedules the services for volun lndwlrial & Corulru By PENNYWEAVER he LegalServ ices Corporation of Alabamais a pri to the systemof justice in our Nation for individuals who seek vate, non-profit organization funded by Congress redress of grievances."To accomplishthis most basic promise lo provide free legal assistance to poor people in of our free society-equal justice under law-Congress went on civil matters. Through 17 officesl ocated in seven to commit itself to providing a basic level of free legal services regions- Dothan, Florence, Gadsden, Mobile, Montgomery, for the poor in everycounty in America. But. with the inaugura Selma.a nd Tuscaloosa-i t servesclients in 60 of Alabama's 67 tion of the ReaganAdmi nistration in 1982. the original noble counties. 1\~o other federall)•fu nded programs, LegalServices goal or LSCbecame a day-to-dayb attle to merelysurvive. of Metro Birmingham and Legal Services of North Central LSCA's new director faces many challenges, with the need Alaban1a, based in Huntsville, serve the remaining seven coun for increasing funding sourcesat the top or the list. The Jackof ties. A fourth program, the Alabama Consortium of Legal Ser adequatelegal servicesto poor peoplein Alabamawas well doc vices Programs, provides training and other support for the umented in the state bar's 1989 legal needs survey, a study three field programs. LegalServices lawyers handle only civil jointly fundedby LSCAand the AlabamaLaw Poundation. (See casesand are prohibited from representing clients in fee-gener the three-part series in The Alabama lawyer , Volume 51. ating cases. LSCAwill receive $5,385,693this year from U1e numbers 2, 3 and 6, "Assessingthe Legal Needs of the Poor: Legal ServicesCorporation. Buildingan Agenda for the 1990s".)T he LSCg rantees in the In writing the Legal Services Corporation Act in 1974. state have not begun to be able to keep pace with this need. Congress declared that "there is a need to provideequal access These programs employ one lawyerfo r every 11,000 poor per- TEI.E~IIONE FACSIMILE (205) llll-9111 (20SJ126-2316 Penny Weaver PonnyW eaveris commun.catiooscoocdl ANNA LEE GlATIINA oa10,ror tho AJabama Consonlum o! Logal ServicesPrograms . Shehas p,e\liously ATTORNE1' • Mf.\lJJEROF ALABAMABAR sr,,'CE19$1 s&Nedas a r,eelancepnoaog,apher and writor,a, 1 he dlroctorof infcxmal)On10, the Anna U:CGin uini. P.C. Sou1hernPoveny Law Center . as 1ho The Ptw Building At M:agnOli3 Offtee Park ass:istanldU'ec tor of lhe Alabama Commu· Suite2 18 • 2112 Elcvc.nthA\'tfiUC South nltyAo1a1lons Ptogram °' the Southeasuun Birmingham,Alabama 3S20S PubUcEcrucailon Program . Ameucan FtiendsService Commlnee . andas a fttsli\ROl • Bltll:JW•m.'11&• \\1:nl.A W • ASSIS'tM"(EIS CASE PRD'AILA TIOS reporterand photog:aphE!fIn M:issl$S!ppf. ,..,~ ...... ,.. ., ..... ~ ...... _~..- JOOI March 1992 THEALA BAMALAWYER sons in the state, while the overall ratio of Alabamalawyers to projects are located in LSCA'sFlorence , Tuscaloosa, Mont its general populationi s one to 400. The American BarAssocia gomery,Selma , and Mobile regions. tion estimatesthat each year one poor person in four will need The IOLTAgrants enabledLSCA to provide an additional ser legal help in a civil matter. vice to its low-incomeclients , but because the money is ear Incorporated in 1976, LSCAwas founded by lawyers from marked for these projects, JOLTAfunding has not helpedLegal across the state who saw the unmet legal needs or poor Services staff in their struggle to meet the day-to-day legal Alabamians.It receivedan operatinggrant from the LegalSer needs of poor Alabamians. An increase in general funding will vices Corporation and began service to clients in 1978. The be necessaryto do this. program rapidlyexpanded i n 1979 and 1980 to reach clients in Lookingtoward expandingrevenue sources, the three LSC its 60-county servicearea. In 1982, a 25 percent cut in program funded programs in Alabamahave jointly undertaken a devel funding,coupled with a new requirementto spend 12.5percen t opment project. Directing this effort is Hilary Luks Chiz, a or its grant money for the involvementof private attorneys in Birmingham native \~ith a background in raising funds on servicede livery, forcedLSCA to drasticallyreduce its legal staff. behalf of legal issues. One focus of Legal Services' fundraising Although there have been small increases in LSC appropria will be an effort to receivea greater portion of IOLTAfunding. tions in the last decade, the program has never been able to The AlabamaLaw Founda tion currently awards37.8 percent of regain the number of staff membersit had in its early days. The its IOLTAmoney to the "LegalAid to the Poor" category. In program's 1991 funding from LSC was some $300,000 less other states, that amount averages75 percent. than its funding ten years ago in 1981. In 1981, LSCA LSCAis governed by a IS-member board of directors. The employed 92 lawyers; in 1991, it employed 52 with its LSC Alabama State Bar appoints eight of these, the Alabama runding. La1vyersAssociation appo ints one, and the rest are client-eligi LSCAclosed 20,406 cases in 1991.The vast majorityof these ble appointeesof various communityorgan izations. The board cases involved accessto public benefits, consumer issues, hous members are Inez J. Baskin, Montgomery; Celia J, Collins, ing problems and domestic relations. Mobile;Earnest Doyle,Se lma; Scott Hedeen, Dothan; Lucille In 1991, LSCAwas able to establish specialdomestic vio lence Jenkins, Montgomery; Walter E. McGowan.Tuskegee; Lizz ie projects in fiveof its regionsw ith a $200,000IOLTA grant from Pullom, Tuscaloosa; R.L. Raney, Florence; Robert 0. Segall. the AlabamaLaw Foundation. Each of these projects funds a Montgomery; Kathleen Thomas, Chunchula; Bryant A. Whit lawyerwho providesdirect service to clients as well as general mire, Birmingham; Al L. Vreeland, Tuscaloosa; Mccowin advocacyand educationaround domesticv iolence issues. These Williamson,Greenville; and F'redWood, Hamilton . Ludgoodnamed director of LSCA Mobile lawyerMerceria Ludgood has assumedthe leadershipof Alabama'slargest Legal Services program, the Legal Services Corporation of Alabama. Ludgood, an Alabama LawyersAssociation-appointee to the LSCAboard of directors since 1982,was selectedas the program's new director at a special board meeting. The board, acting on the recom mendation of its selection committee, voted unanimouslyto offer Ludgoodthe position. The selection committeeinterviewed 11 applicantsfor the directorship. Ludgood, a native of Mobile,earned both her B.A.and .M.A.degrees in education from the Universityof Alabama.In 1978, she entered AntiochSchoo l of Law in Washington, D.C. Ludgoodpart icipated in a special program offeredby Antioch at that time. It was geared toward older students with activist backgrounds.Under this program, a law stu dent began actuallyserving c lients in the second semester of their first year. While in law school, Ludgoodworked for Neighborhood LegalServ ices in Washington, and also clerked for Senator HowellHeflin on the Senate Judiciary Committee's Sub- MercerioLudgood committeeon Jurisprudenceand Governmental Relations. In 1981, she finished law school and returned to Mobileto enter private practice with VernonCrawford, Michael Figures and Sam Irby. She remainedwith that firm until 1988 when she went out on her own as a sole practitioner. Ludgoodis currently on the MobileBar Association'sE:xecutive Committee and in the past has served on its Continu ing Legal Education Committee and its Pro Bono Project Committee.She has been a participatingla1vyer in the Mobile Pro Bono Project since its inception. Since 1985, she has been an assistant county attorney for Mobile County,and since 1990,ass istant attorney for the MobileCounty Personnel Board.Recently. she was appointed a special district judge and probatej udge in MobileCounty. • THI',;ALABAMA LAWYER March1992 1101 LEGISLATIVEWRAP-UP By ROBERTl. McCURLEY,JR. UCC Article 4A - "Funds Although there is no comprehensive ma are covered under Regulation J, Trensfe r" law governingr.ommerclal funds trans many transactions occur with no r.om The Alabama Law Institute has fers. Regulation J (federal law) covers prehensive rules and no readily ascer approvedand presented lo the Legisla I he interbank part of any commercial tainable establishedl aw governingt hose ture a new article to lhe UniformCo m funds transfer by the Federal Reserve transactions,hence , the need ror a com mercial Code. Allorney Larry Vincent prehensiveset or rules lo govern these chaired the commilleewith the follow transactions. ing lawyersse_rving on the committee: Article 4A is designed to establish John Andrews. professor Don Baker, rules cO\coeringthe rights and obligations Burton Barnes. Hamp Boles, Richard connected with funds transfers. The Carmody,Robert Couch, Bill Hairston, article balances the interest of banks. Ill, Palmer Hamilton. Ronald L. Sims. commercial users of this payment JudgeJames S ledge,and Joe Stewart. method and the public concerningsuch ProposedArticle 4A or the UCCwas problemsas authorizedpayment or ders, developedto fill a void in the law relat improper execution of payment orders, ing to a type orpayment made through fraud and insolvency or participating the banking system called a "funds banks. The article specifies who lakes transfer".Generally. a funds t.ransferis a the risk or loss, who will be liable and large, rapid money transfer between whal damages may be assessed. commercial entities. l'or example, the Uniformity with Regulation J, and average transfer involves $5,000,000. with 32 states who have enacted 4A, is Consumer transactions such as credit important to maintain a speedy and cards, debit cards, automated teller network.Article 4A and RegulationJ are Inexpensivesy5tem to transfer fund$as machine transfers and checks are gov compatible. embodyingthe same con Alabama expands mto other national erned by the ElectronicFunds Transfer cepts. Thus, even though a majorityof and internationalmarkets. A lackof uni Act,not by this article. the funds transfers occurring In Alaba, formitycould result in an inexperienced business person or entity inadvertently incurring excessive liability. Part 1 - Subject Maner and Definitions In addition to providing definitions. BAR- this part establisheswhich transfers of funds are covered by this article and which are excluded.Consumer transac DIRECTORIES llons are governed by federal law and, therefore, are excluded (§ 108).The time Bar directories came out last month . of receipt of a payment order is gov erned by Section 106. Extra copies are $15 each. Send checks or money orders to: Robert L. Mccurley , Jr. RabonL Mc:Cur1eyJ< Alabama Bar Directory IOlhl dlrec!Qr cUne .....,.,,,.lawlnl:Ju:e P.O. Box 4156 ...... ~..,., ~ Hl! fe0il!!'Y9CI hllundo!g<- Montgomer y, AL 36101 """ degrees fromltle UfllVOt'III)' 102 / March1992 THEALABAMA LAWYER Part 2 - Issue and Acceptance of Steve Windom from Mobile;H ouse bill ment is to §§232,233, 234, and 237 of Payment Order 97 sponsored by Representative Mary the Consti!ution of Alabama of 1901, This part covers the security proce Zoghby. relating to corporations to authorize dure (§201) established between the the Legislature to define activities that customer and receivingbank and autho UCC Article 2A- · Leases" do or do not constitut e the doing of rizations of payment orders (§202). It Senate bill ll3 sponsoredby Senator business in Alabamaor foreigncorpora also addresses problems and liabilities Jack Floyd, Gadsden; House bill 135 tions. It also permits domestic corpora under such situations as erroneous pay sponsored by Representative Mike Box, tions to engage in certain business not ment orders (§205), misdescription of Mobile. See Alabama lawyer , May expresslyauthor ized by its charter and beneficiaries (§207) or banks (§208), 1991. removes certa in restrictions on the and unacceptedpayment orders (§212). issuanceor stock and bonds by domes tic corporations. The amendment will Part 3 - Execution of Sender's Pay Constitutional amendments also permit domestic corporations to ment Order by Receiving Bank to the Business Corporation issue preferred stock as authorized by Part 3 establishes the execution date Act state statutes. (§301)and the obligation of the receiv Senate bill 119 sponsored by Senator For further information, contact Bob ing bank in execution of the payment Pat Lindsey, Butler; House bill 108 McCurley.Alabama Law Institute, P.O. order (§302). The effect of erroneous sponsoredby RepresentativeJim Camp Box 1425, Tuscaloosa, Alabama 35486 execution of a paymentorder (§302)and bell, Anniston. This proposed amend- or phone (205)348-7411. the liability for a late or improperexecu tion or failure lo execute the payment order (§305) is also covered. The responsibilitiesof lhe sender to report HEALTH CARE AUDI TORS, IN C. an erroneouslyexecuted paymentorder are set out in Section304. Part 4 - Payment This part establishes the paymentda te (§401)as well as the obligations or the sender (§402) and beneficiary bank & (§404) to make payment. Payment by MEDICAL DENTALMAIPRACTICE EXPERTS the sender (§403), by the beneficiary's * GRATISMEDICAL TEAM PREVIEW OF YOURCASE bank (§405) and by the originator(§406) * GRATISconsultation by clinical rep INYOUR OFFICE are covered. Dischargeof the underlying obligation(§406) is included. * GRATIScourt room assistance by our clinical reps Part 5 - Miscellaneous Provisions 11th HOURNOTARIZED AFFIDAVITS: SUPER RUSH Generally, the parties may alter their Signed written oplnlom from $295 rights and obligations (§501). Creditor process and setoffs (§502), injunctions • We are NOT slinply a referral service. We work and restraining orders (§503) and rate closely with you to BUILDYOUR CASE of interest (§506)are covered.The order * All medical experts are actively practicing · in which payment orde rs may be BOARDCERTIFIED - NO RETIREDEXPERTS charged to an account (§504) is includ ed among the miscellaneousp rovisions. * H your case has no merit we will document such Pinally, Section 505 essentially estab for y:ourfirm GRATIS! lishesa one-year rule or repose. * Financial plans tailored to your exact needs Institute bills before the HCAI MEDICALUOGATIO N SUPPORTTEAM Legislature P.O. Box22007 St Petersburg.Florida 33742 813-579-8054 UCC Article 4A -"Funds Transfers· for StatService: FAX (813) 573-1333 Senate bill 66 sponsored by Senator THE ALABAMALAWYER March 1992I 103 BUILDING ALABAMA'S COURTHOUSES LAMAR COUNTY COURTHOUSE By SAMIIELA.RI/MORE, JR. The following continues a history of Alabama's county courthouses /heir origins ond some of the people who contributedto their growth. The Al•b•m• £• w11e.r plans lo run one COlJnlysslOfJI in each issueof the mag. azure.If you have any photographsof early or present courthouses, please foro:ardthem lo: Samuel A. Rumore, Jr., MigllonictJ& Rumore, 1230 Braum Marx Tower, Birmingham. Alabama 35203. Lamar County am.u County,in northwest Alabama, has two in teresting distinctions.It is one of only three counties in Alabama.the other two befagColbert and Etowah,to havebeen created,abol Lam11r Coun ty Courthouse ished and then re-established.And it is the only county in Alabamato have had States Senator from Alabama.H e was led his proposal.This ti me, however, the three different names-Jones. Sanford lhe last Confederalcveteran to serve in word "Stonewall" was deleted. In its and Lamar. the UnitedStates Sena te. pl,,ce he substitutedthe name "Jones". rr any one person could be called the On January 21, 1867, t he young and 1,lliot P. Jones of FayetteCo unty was a ··rather or Lamar County" it must be ambitious representative proposed the pro mj nent and inOuential member of John Hollis Bankhead, the patriarch or creationof a new county.The northern the Legislature3l the time whose sup· the family which produced such emi part of the county wouldbe taken from port Bankheadneeded. Bankhead was a nent Alabamians as Senator John H. Ba.nkhead'sown Marion County, and the master politicianeven from his earliest Bankhead. Jr .• Speaker of the House southern part would be carved from days. and he knew how to maneuw.rin WilliamB. Bankheadand actressTallu Fayette County. He proposed that the order to obtain his goals.If the name he lah Bankhead. Bankhead's forebears new county be named "Stonewall" in chose the first lime hurt his efforts, were earlyAlabama pioneers who settled honor or the Confederatehero. Stone then the name he chosethe secondtime in the area near present-daySulligent wall Jackson. All went well until the would ensure his success.On February around 1816. He served as a captain in third reading of the bill. Many "c.arpel 4. 1867 Jones County, Alabama was the Confederate Army and began his bag· and •scalawag• members of this estab I ished . long career or public servicein 1865 by Reconstruction-eraLegislature found By March 1867.Congress had passed winning a se.,t in the AlabamaLeg isla the name Stonewallto be unacceptable. the Reconstruction Act which ended ture from MarionC-Oun ty. Mispo litic.al and so Bankhead'sb ill failedlo receive Presidenlial Reconstructionand began career continued until his death in 1920 the requiredtwo -U,irds majority vote. the Congressional version. The civilian when Bankhead was servinga5 a United A few days later. Bankhead resubmit- governmentof Alabamawas nowsubject 104/ March 1992 Tl IE ALABAMALAWYER to Congressional Reconstruction poli itary governor of Alabama from July on January 10, 1861, the day before cies. The actions of the newly created 1867to July 1868, and as commander of Alabamaa dopted its Ordinanceof Seces Jones County had to be approved by the the AlabamaFreedmen 's Bureau until sion. However, an exception was made Freedmen's Bureau and the military January 1869.He retired as a major gen to the policy of returning to the pre-war authorities, similar to Justice Depart eral and returned to the practice of law. boundaries. Counties which had pur ment pre-clearance of political changes He died in New York December 18, chased property for the construction of in Alabamatoday under the 1965Voting 1902. public build ings and had already RightsAct By Septembe r 1867 the town of assumed a contractual public indebted On April 29, 1867 Jones County Swayne was surveyed, the future loca ness were exempt. Jones Countyd id not receiveda pprovalfrom WagerSwayne , a tion of a permanent courthouse was fit into the exemption. commissioner of the Freedmen's chosen, and the construction of a tem On November J3, 1867, Ordinance Bureau, to conduct an election to deter poraryco urthouse was authorized. Fifty No. I of the ConstitutionalConvent ion mine the site of a county seat. Major lots were sold to individualsat a public of 1867 abolished Jones County and General Swayne instructed the county auction to raise funds. And, on October returned its terri tory to Marion and that no person should be denied the 3, 1867, the first county tax was levied Fayette counties. General Swayne did right to vote in this election becauseo f for courthouseand jail construction. not favorably view this action of the rad race or color. Despite the progress Jones County ica I Const itut ional Convention. On The site chosen for the county seat had made, a movement arose in north December II, 1867 he sent a letter to was a 30-acre tract of land cent rally Alabamato undo the action which creat the probate judge of Jones County located within the county. The govern ed the county. On November5, 1867, a informing the jud ge tha t he· had ment of the county began its business Constitutional Convention convened. At attempted to use his influence to save on August 26, 1867. One of the first the convention, a delegate from Winston Jones County, but was unsuccessful. He orders of businesswas the selection of a County introduced an ordinance to stated that he would try to get the coun name for the county seat town. The abolishthe county of Jones.The propos ty re-established when the Legislature name chosen was Swayne in honor of al was referred to a committeeon coun met again, and suggestedthat the coun Wager Swayne, who by July 1867 had ties and municipal organizations. The ty should continue its business as if it been appointed the military governorof committeedecided to return all political had neverbee n abolished. the State of Alabama. boundaries of Alabamat o those existing The year 1868 was an interesting time General Swaynewas an educated man from a prominent Ohio family and a dis tinguished member of the United States Army. He graduated from Yale in 1856 and the Cincinnati LawSc hool in 1859, The Video Advantage and practiced law with his father in Columbus, Ohio prior to the outbreak of war. His father, Noah H. Swayne,served Professional video and photography gives on the United States Supreme Court you the edge in presenting your case. from 1862 to 1881. The younger Swayne entered the Army on August31 , 1861with the rank • Video depositions of major. He suffered the loss of a leg • Evidence videos during the war and was awarded the • Train ing videos Medal of Honor for bravery. Swayne • The accident scene completed his militaryca reer as the mil- • "Day In The Life" presentation s • Corporate presentations I Image • Still photogr aphy services Samue l A. Rumore, Jr. • State-At-Large Notary Publi c SamuelA . Au.mote.Jr is a graduateof the University of Noire Dame and the Full service location and studio University ot Alabama Schoolol Law. He production, editing, and photography. served as founding chairper500 of the AtabamaSia:& Bar'.s Familyl aw Section and COMPLETE VIDEO & PHOTOGRAPHY Is 11'1p,acbC9 In S(rmingham with the firm ot M lg!ionlco & Rvmo THEALABAMA LAWYER March1 9921 105 in the life of the then non-existent Jones commissioners agreed and the town County. In May of that year, the state todayremains Vernon. super intendent of registration sent The first courts in the county con BAR instructions to the sheriff on how to vened in a log house belonging to draw jurors in the county. In July, U1e Daniel J. Molloy until a te mporary probate judge remitted to the state the structure was built. The county paid DIRECTORIEScounty taxes he had collected. In L.H. Jackson and Thomas W. Finch August, the tax collector of the non $300 for the temp0rary courthouse. The existent county received instructions first permanent courthouse was Bar directories from the state auditor on conducting his designed to be located on the public job. And, dur ing the year, the county square at Vernon. Daniel J. Molloyand came out last month. government let contracts for a court Jesse Little Taylor established a brick Extra copies are house and jail. yard at Vernon for making the court To further complicate matters, after house construction materials. The $15 each. the first Jones County was abolished in courthouse and jail were completed by north Alabama, a second Jones County 1870, and the total cost was approxi- Send checks or was created by the AlabamaLegis lature mately $14,000. money orders to : in south Alabama. On August 6, 1868, The Reconstruction Era ended with the name of CovingtonCounty was offi the election of President Rutherford B. ciaUychanged to Jones County in honor Hayes in 1876.John Hollis Bankhead of Josiah Jones, a local political leader was not in the Alabama Legislature at Alabama Bar Directory and former legislator. Jones, however, that time, but he was a person of did not want the county named for him. tremendo us political influence. P.O. Box 4156 Therefore, in 1868A labama had a non Bankhead never quite forgot the com existent Jones County in north Alabama promise he had to make concerning U1e Montgomery, Al 361 01 which was functioning and seeking to be name of the county he helped to create. recreated. and an existing Jones County In 1877. he decided to exert his influ in south Alabama that its namesake ence to let the world know his personal wished to disavow. To end the confu sentiments as well as the sentiments of sion. Jones County in north Alabama his country concerning the Confederacy was re-established on October 8, 1868, and the post-,oar period. With his urg but was renamed Sanford County, while ing and support. on f'ebruary 8, 1877 on October 10, 1868, Jones County in the Alabama Legislature changed the south Alabamaagain became Covington name of Sanford County to Lamar County. The Reconstruction Era was County. This action was to honor Lucius certainly an unsettling time in Alabama Quintus Cincinnatus Lamar of Missis historyI sippi. Designed specificallylor law firms The new Sanford County was named Lamar was a native of Georgia 1oho for Henry C. Sanford. He was a native of moved to Mississippi to seek greater • Commt.':J'Cial& Rtt.i il Collections the Greenville District in South Caroli 106 / March J 992 THE ALABAMALA \.VYER again. By choosing his name, Bankhead lo April 1894 bids were sought for a Vernon opposed an election. Millport and the Alabama Legislaturesy mbolical courth ouse renovation project. D.S. residents sided with Vernon to keep the ly indicated that a period of political bit McClanahan of Columbus, Mississippi courthouse from being moved to Sulli terness was drawing to a close. submitted the low bid of approximately gent. The result was that more quali The illustrious career of Lamar con $2,300. He added four rooms, remod fied electors opposed an election than tinued after the county on the western eled the older part of the building, and reque sted one, and so the issue of border of Alabamawas named for him. then was authorized to make ot her courthouse removal was closed. He became a United States Senator in improve ments . The cost overr uns In 1909, a new courthouse was built 1877, secretary of the interior under required the county to issue bonds to in Vernon.Th is courthouse was of Clas President Clevelandi n 1885, and served complete the project. sical design with four large columns, a on the U.S. Supreme Court from 1888 By the ear ly 1900s, Sulligent in pedimented portico and an impressive until his death in 1893. Lamar was north Lamar and Millport in south dome. The architect for this structure indeed a worthy recipient of the honor Lamar vied to become the county seat was Chamberlain and Company of suggested for him by Joh n Hollis and take the courthouse from Vernon. Birmingham and the builder was B.C. Bankhead. However, Sulligent soon became the Bynum Construction Company, also of The 1870courthouse in Sanford(la ter only rival in a petition for a courthouse Birmingham. Lamar) County did not serve the county election that was circu lated in the In 1948,this courthouse was modern well. Almost from its completion com county. A counterpetition opposing an ized. The classic dome and columns plaints were made that it was too small. election was also circulated. Both peti were removed and a th ird floor was For over 20 years dissatisfaction sim tions were submitted to Governor 8.8. added to the structure. The architect for mered. Several towns in the county Comer who appointed the state exam this project was William I. Rosamond, called for the removal of the court · iner of public accounts to cert ify the and Daniel Construction Company was house. By 1894, the problem became signat ures of the qualified electors. the contractor. The renovated J 909 even more acute because the structure Those who supported Sulligent wanted courthouse serves Lamar County to this had developedleaks and cracks. an election and those who supported day. • NOTICE OF ELECTION Notice is given herewith pursuant to the Alab ama State Bar Rules Governing Election of President elect and Commissioner. PRESIDENT-ELECT The Alabama S1a1e Barwill elect a presidentin 1992 10 also must submit with the nominating petitiona black and assume the presidencyo f the bar in July 1993. Any"candi while photograph and biographical data to be publishedin date must be a member in good standing on March 1, the MayAlabama l awyer. 1992. Petitions nominating a candidaten 1ust bear the sig Ballotswill be mailed between May 15 and June 1 and nature of 25 members in good standing of the Alabama must be received at state bar headquarters by 5 p.m. on Stale Barand be receivedby the secretaryof the stale bar July 14, 1992. on or beforeMarch 1, 1992.Any candidatef or this office COMMISSIONERS Barcommissioners wlll be elected by those lawyerswith Nominationsmay be made by petition bearing the signa their principal officesin the followingcirc uits: 1st, 3rd, 5th, tures of fivemembers in goods1ai1d ing withprinc ipal offices 6th, place no. 1; 7th; I 0th, placesn o. 3 and 6; 13th, place in the circuit In which the electionwill be held or by the no. 3 and 4 ; 14th; 15th, places no. 1, 3 and 4; 25th; 26th; candidate's \vrittendeclaration of candidacy. Either mustbe 28th; 32nd; and 37th. Additionalcommissio ners will be receivedby the secretaryn o later than 5 p.m.on the last Fri elected in these circuits for each 300 membersof the state day in April(Ap ril 24, 1992). bar wi1hpr incipal officest herein. The new commissioner Ballotswill be preparedand mailedt o members between positions will be determinedby a census on March 1, 1992 May 15 and June 1, 1992. Ballots must be voted and and vacancies certifiedby the secretaryo n March1 5, 1992. returned by 5 p.m. on ~,e second Tuesdayin June Oune9 , The termsof any incumbentcommissioners ar e retained. 1992) to state bar headquarters. Allsubseq uent termswill be for threeyears. THE ALABAMALAWYER March 1992 / 107 tlTIGATINC MINORIH ----. SUAREHDLD.ER RtCHTS AND l'HE NEW TO.RI\ OE 0P~RESS1DN By ANDREWP. CAl'i1PBEll THE HISTORICAL And no Bill of Rights protected the minority from majority TRADITION domination. The majority was free to utterly deprive and Savorers of political fare recall with glee the tale of two squeen out the minority of the tv.'O,oestiges of stock Ol\!Oer brothers; one who went off to sea.the other who becamevice · ship: (I) the tangible right to a present return on its capital in president o( the United States, and neither was ever heard of the form of salary, bonusesand dividends;and 12)the intangi again. If there had been a third siblingof this dubiousduo who ble privilege to participate in operating the companyand set sulTeredthe same rate, it could only be becausehe was a minor· ling its managementcourse . ity shareholder in a closely held Alabamacorporation. Trad!· This separalion of ownershipof capital from corporate con· lionally. minorityshareholders in this state were consignedto Lrolinevitab ly impaired the value of the minority's shares in a peculiar oblivionoffering few rights and fewer remedies to the marketplace. Simplyput. no buyer in his right mind would control their destiny and no right to receivea present return pay cash for paper stock carrying no rights. including the on their investment. right to income thereon. Left to the whims of a majority The history o( control or close corporations has been democ shareholder, who could starve him out by firing him and cut racy with a vengeance.Under the principle or majorityco ntrol ting him off from a livelihood, the minority shareholder had as entrenched further by the Business Judgment Rule (dis twocho ices: (1) hold his stock in perpetuitywhile receiving no cussed hereafter). the majority, aslong as it acted lawfully and earnings thereon, or (2) sell oul at an unreasonablylow price consistent with the Articlesor Incorporationand By-Laws.had to the majorityshareholder. the unbridled privilegeto manage the corporationas It saw lit. In many cases, the majority saw no reason to purchase the As the AlabamaSupreme Court held in the cue of Phinizvu. minority's shares when it had the free use of the minority's Annis/on Citv land C.o.,195Ala. 656 , 71 So. 469, 471 (1916): capital for its own purposes. One commentator made this salient point succinctly: Those who embark in a corporate enterprise as stock holders do so under an impliedagreement that the busi All the majority can gain by purchasing the minority's ness shall be controlledand directed by a majorityof the interest is that portion of the earnings attributable to stockholders.... the minority's investment that the majority is unable to When the question is one of mere discretion in the man capture by legally permissible mnnlpulation of its con agement of the business or of doubtful event in the trol position, plus whatever value the majority attaches undertaking in which the concern has embarked,a rem· to freedom from potential harassment or inconvenience edy cannot be sought in a court of equity. due to the opposition or mere presence of the minority 108 / March 1992 THEALABAMA LAWYER interest. Indeed, the majority has substantial discentives In lhe past, some courts have permitted majority share to purchase the minority's investment because it func holders to exercise,without any restriction other than tions as a long term. low (and flexible) interest loan good faith, whatever powers they had as conlrolling without a maturity date. The majority is thus able to use shareholders under the statutes and the corporation's the minority's capital to leverage its own investment charter and bylaws;and further, they have treated the without incurring the risks associated with a loan. It will fiduciaryduties of the directors as running only in favor be willing to purchase only at a price that is less than of the corporation, not to the minority shareholders. the cost of obtaining capital elsewhere. This view that the contro lling shareholders and the directors do not owe fiduciary duties to minority share Hetherton and Dooley,flliquidit.11 and Exp/oilalion:A Pro holders appears outmoded, at least as applied to . .. posedStatulof!/ So lulion to the RemainingC lose Corporation attempts to eliminate minori ty shareholders or to Problem,63 Va. L. Rev. l, 5-6 (1977). deprive them of their proportionate rights and powers without a just equivalent. Wheresevera l ownersca rr.11 This state of affairs was utterly at odds with the notion that on an en/erpriset ogether (as they usually do in a close the majority should act fairly and attempt to fulfill the reason corporation),their relationshipsho uld be considered a able expectations of all shareholders. Por one owns stock in a fiduciar.11one similar to the relationshipamong part close corporation not simply to hold paper, but to achieve (1) ners. The fact that the enterprise is incorporatedshould capitalapprec iation, (2) income on that capital in the form of not substantially change the picture. Whenbusinessmen a proportionatesha re of the profits, (3) some role in manage organize a corporation, they enter into their relationship ment of corporate affairs, and in many cases. (4) a secure against a backgroundo f corporation statutes and com livelihood through employment and its benefits. mon law doctrine which vest in the directors the power Unfetteredmajority autocracy undermined these goals and to manage the corporation's affairs and in the directors placedthe minority in a position of solelya n unwilling lender and certain percentages of the shareholders' power to of capital. And then the law changed.. affect fundamental changes in the corporation.... But this does not mean that the directors or the majority shareholders should be permitted to exercise their pow r~' TORT OF OPPRESSION: ers arbitrarily or without regard to the legitimateexpec I CREATION OF THE RIGHT tations of the minority shareholders; and many of the older decisions and practically all of the recent ones The first significant movement toward recognition of a tort of oppressionof minority shareholders in Alabama came indicate that controlling shareholders, in some circum stances at least, owe fiduciaryduties to minority share in Burt u. Burl Boiler Works,In c., 360 So.2d 327 (Ala. 1978). Speaking for the court, Justice Janie Shores stated that major holders, and that the courts will require them (whether ity stockholders owed a duty to "act fairly to minority inter the.11act in their capacit.11as shareholdersor through directors or officers whom /hey control); lo observe ests" and that "the majority cannot avoid that duty merely because the action taken is legally authorized."ld. at 331. ln accepted standards of business ethics in transactions affectingrights of minorityshareholde rs. so holding. the court summarily rejectedthe traditional Alaba ma dogma that the majority "may alwaysregulate and control Id. at 331-32 (quot ing O'Neal. Close Corpora/ions the lawfulexercises of corporatepowers. " ld. Substituted in its § 8.07)(emphasis added). place was a principle that if the majority acted unfairly in a monetary sense it was guilty of breach of a fiduciary duty owed The court affirmedt he trial court's ruling that the majority had acquired cont rol withou t the use of any oppression to the minority even though its conduct was otherwise lawful. against the minority's interests. Id. at 331-32. The opinion Id. added, arguably in dicta, words that indicated that the minori The court did not Oesh out lhis new right to corporate fun damental fairness,but it did quote with approval the following ty's rights to fairness would encompassan economic right to equitable participationin corporatep rofits: section from Professor O'Neal's Close Corporations, § 8.07 which seemingly redefinedthe relationship between majority and minorityas akin to that of partners: The majority now controls the corporate management. Shou Id they, acting through the board and corporate officers,which they control, deprivethe minority stock holders of their jus t share of corporate gains, such Andr ew P. Cam pbell would, of course,be actionable.A mong the techniques Md r&H P. Campbell, a panner in the Birmingham described by O'Neal and Derwin (E:xpulsion or Oppres firmol Lctiman, S.CgaJ,Pa yne& campbel,PC ,, Isa sion of Business Associates:"Squeeze Outs" in Small gracf\Jale o1 Birmingham Sovlhern College. <;vm Jau THE ALABAMALAW YER March 1992/ 109 While nol fully realized al the time by the bench and bar, carded and the close corporation is viewedin this context as a the court, for the first time, extended the majority fiduciary partnership of individualswho share Lhe functions or owner duty owedby the majority to the minority to require equity in ship and management. Each having made a capital contribu· distributions of earnings from the corporation. Most impor tion lo the business. rough justice requires that each receivea tantly, this novtl holding sanctioned judicial intrusion into a just share of income therefrom based on his ownership per realm of corporate management previouslycommitted to the centage. In blunt terminology, the court, in Galbreath, cate independentdiscretion of the majorityshareholder. gorized the majority's denial of this right to such gains of the Spoken of in Burt, this new right of the minority lO fairness close corporation as a •squeeze-out." and lo its "jusl share of corporate gains" was again embraced In addition to giving teelh to the minority's rights. Ca/ in Ca/breath11 . Scott, 433 So.2d 454 (Ala. 1983).Again, how breath is significant because the court indicated that the tort ever. the court did not set parameters on the tort. of oppression presents a Jury question. The court held that In Galbreath, the plaintiff brought an individual action for whether the majority had acted in good faith to "further the corporate ,oasle of assets by controlling stockholders. Id. at legitimate interests of (the corporation(" or engaged in self 454-55.The issue was one of standing: whether conversion or dealing was for the jury to decide.Id . at 457; see also Finance waste o( corporate assets by the majority was primarily an lnueslment & RediscounlCo. 11. Wells.409 So.2d 1341 (Ala. injury to the corporation, limiting standing to derivative 1982) (the right to a jury tr,al exists on derivativeclaims seek stockholderssuing on behalf of the corporation, or whether it ing damages.) was primarily an injury to individualstockholders . Id. at 456. The court found that for such corporate misconduct.the right , was solely derivativt. belonginglo the corporation and not to EX PARTE BROWN: individualshareholders. Id. at 456-57.( See discussionbelow. ) THE TORT'S COMING OF AGE In its discussion, the Ca/breath Court cited the Burt deci The embryonic right against oppression and to a share of sion as creating a new cause of action for tortious oppression. just gains was brought to fruition in Ex Parle Brown. 562 So.2d 485 (Ala. 1990). In this, the second ·creentrack" case, [MJajority stockholders owe a duty to at least act fairly to the minority faceda unique defense:a substantial increase in the minority interests... 360 So.2d at 331. We recog the value of the stock or the excluded minorit)• shareholder. nized n cause or action where majority shareholders, The issue presented was how can a stockholder claim that he "acting Lhrought he board and corporate officers,which is oppressed when the value o( his stock has increased ten-fold they control, depr,ve the minority stockholders of their or 20-fold throug h the majority's successful management just share of corporate gains ... • 360 So.2d al 332. efforts? Underlyingthe decision in Ex Parle Broomwe re the philo Id. at457 (quoting Burl, 360 So.2dat 331,332). sophical issues of what reasonable basic expectations of a stockholder accruing from ownership should be enforcedand In rea((irming the court's adoption of a tort of oppression, to what extent should the judiciary interfere with manage the Ca/breathcourt again cited O'Nealfor the premise that a ment policies that meet some expectationsbut not others. Are closely held corporation takes on the fiduciaryattributes of a the legitimate expectations of outside/passive stockholders partnership with overlapping directors, shareholders and simply capital appreciation with no right lo present income emplorees,as opposed to the classic publicly-held corporation therron as the defendantsargued. or do they extend to partici with its divisionbetween capital ownershipand management. pation in profits as they were produced or to liquidity ia Id. at 457 (citing I O'Neal,Close Corporations, §§ 1.07, I.IO. investment? In other words. as In the partnership analysis and 1.12 (2d ed. 1971)).I n a partnership, the minority cannot used in Ca/breath, do the rights of passi~e minority investors be deprived of its share or partnership distributions paid out include a right against majority discriminationin the distribu· through draws. Rather, there is a fundamental right to equali· tion of profits and participation in a proportional share of the ty of treatment busedon proportionate ownership. profits therein paid to lhe majority insiders through director's This right to fairness and "just share of corporate gains" fees,salaries, bonuses, and corporate "perks?'' takes on real meaning only when the corporate form is dis- In Ex Parle Brown.the court held that a dramatic increase in value of his stock wasnot all that Lheminority was entitled n,1,phono:!JOSI no. ossJ lo and would not serve as a defenseagainst otherwise oppres sive conduct. TOXICOLOGYCONSULTANTS The fact. however. that the (minority 's( stock has increased in value is no answu to the charge of system AlroJJ.,/ • Cat1Jrol/td Sub,tant ll! SN.R.'2 10Trrr1C't This decision wascorrect. Capitalappreciatio n is of no bene Ml,ml. norlcl• .l.1179 JAYM. PCJUPKO, Ph.D. fit to a minority if the majority can borrow and use that capital for free for its own purposes.Again, a shareholder's legitimate 110 I March 1992 TH£ ALABAMALAWYER expectations in a closecorporatio n include some proportion of large salaries to the majority was prima focie evidenceof ate share of earnings (assumingthere are earnings) from his oppression.Id. In other words, such evidencewould get the capital. This is particularlytrue since there is no secondary caseby summaryjudgment to the fact-finderfor decision.The market for sale of the stock. court then remandedth e case to the trial court (as fact finder) Takinga step beYQndBurt and Calbreolh,the court defined for a determinationof whether the majority·has acted in the specificelemen ts of the tort of oppression.Quoting O'Neal, best interest of all the stockholders."or whether its decisions lhe court cited "SQueeze-oultechniques• that would prove were made for the purpose of squeezingout the minority.as oppression-even in the faceof large increasesin the valueof the bare facts seem to suggest."I d. at 494. lhe minority'sstock. The court addedthat: § 3.02s, ,ue1w1tech niques in general. . . IH lo I ders of a If the trial judge determinesthat the rights and interests majority of the voting shares in a corporation, through or mlnority stockholders have been prejudiced by the their ability to elect and control a majorityo f the direc actions of the majoritys hareholders, he shall determine tors nnd to determine the outcome of shareholders' and fixan amount necessaryto compensate the minority votes on other matters, have tremendouspower to use a for this breachof duty owedthem by the majority." great varietyof deviceso r modesof operation to benefit themselvesat the expenseof minorityshareholders. Id. at 494 (citing F.H. O'Nealand R. Thompson,Close Corp<> rolions. § 9:30 (3Tded.). Here are a fewillustrations. The squeezersmay refuse to declare dividends;they may drain off the corporation's lnlerestingly.the original.unpublished opinion by the court earnings by exorbitant salaries and bonuses to the required the trial court to determine if "squeeze-outwas the majoritysharehold~r-officers and perhaps to their rela objective of the majority." UnpublishedSlip Opinion at 14. tives,by high rental agreementsfor property the corpo· After the minority filed a petition for rehearing, the court ration leases from majority shareholders. or by unrea replacedthat languagewith the above-quoteddirective requir sonable paymentsunder contracts betweenthe corpora ing a determination of prejudiceto the rights of th e minority. tion and majority shareholders; they may deprive The clear emphasis on prejudice to the minority and a minority shareholders of corporate offices and or requirement of utilitarian fairness lo all shareholders seem employment by the company;t hey may causeth e corpo ingly removes as the determinative factor the issue of the ration to sell its assets at an inadequate price to the majority's subjective intent. Rat!ier, the standard for the trier majority shareholders or to companies in which the majorityare interested;they mayorga nize a newcompa· ny in which the minoritywi ll have no interest, transfer the corporation's assets or business to it. and perhaps then dissolve the old corporation; or they may bring DEFENDINGTHE about the merger or consolidationof the corporation under a plan unfair to the minority. As indicated, the DRINKINGDRIVER techniques listed here merely illustrate the techniques which resourcefulsqueezers may utilize. IN ALABAMA Id. al 492 (quoting F.H. O'Nealand R. Thompson,O'Neol's Znd Edition Oppmssionof Minoril!I Shareholders.§ 3:02 (2d ed. 1985)). Applying these principles, the court held that the minority • All thelaw on the topics had proven substantial evidenceof a systematics< 1ueeze-out by olferlnginto evidence the followingfacts: • All possibledefenses discussed (I) foilureto pay adequatedivid ends; (2) paymentor largesa laries for controllingshareholders; • Complete with JuryCharges (3) removal of minority shareholders from positionsas officers and directors: A Trial Manual (4) eliminationof preemptiverights; for Defense Attorneys (5) eliminationof cumulativevoting; (6) misappropriation of corporate opportunities including Cost $65 .00 pre-paid MaconCoun ty dog track;and (7) preclusion of minority'suse of corporaterecreational facil - From - ities. JOHN E. MAYS Id. at 493-94. P.O. Box 655 Decatur, Alabama 35602 The exPorte Bro/1/n court held that the continued failureto pay dividendst o the minority and the corresponding payment THEALABAMA LAWYER March 1992/ 111 of fact is an objedive one, based on overall fairness; that is, oppression.Id. at 6503. ALthe same time, Justice Maddoxcon whether the acts of lhe majority's were in the best interests of ceded that "the action taken by the majority does not rise to all shareholders as opposed to the majority. Again,under Gal· the magnitude of that taken in Ex Parle Brown". Id. at 6506. breath, this is a jury question. This test affords a jury great Justice Houston disagreed, arguing that termination of an nexibil ity in resolving the fairness or unfairness of the majori at-wi ll employee alone does not make out a stockholder ty's conduct of the corporation. oppression claim. Id. al 6508-09. With some justification. Jus This test also shifts a tremendous burden of proof to the tice Houston pointed out that the court had adopted, over his majority. If the minority proves a failure to pay proportionate dissent in Ex Parle Brown, Professor O'Neal's squeeze-out profits to the minority, the majority must show somehow this techniques as indicia of oppression. Id. al 6508. Now U1e court discriminatory treatment benefitted all shareholders of the was disregarding these collectiverequ irements in favor of sim corporation. This will be impossible in the extreme situation ply one, termination of employment,a step which the majority where the majority is taking out large amounts of money from indisputablyha d the legal right to take. the corporation in salary and bonuses while the minority is How far is the court willing to take this oppression claim? receiving comparably little or no income. The tougher case From Michaud, it is evident the court will find a prima facie will be when a minority shareholder is receiving economic case if a minority shareholder is cut off from (1) income from benefits from the company but less than his proportionate or (2) employment from the corporation. Under Michaud, if a value of his stock. The wise majority shareholder will attempt minority shareholder is fired, the employment at-will doctrine to defeat an oppression claim by paying the minority some will no longer protect an employer/majority shareho lder thing more than a token compensation (compared to the unless the minority shareholder is receiving an income on his majority's income) in dividends,sa lary or perhaps director or investment somewhat commensurate with his expectati·ons consulting fees. and investment. As noted above, it is absolutely critical for the majority to lreat lhe minority fairlywith respect to payment of benefits to the minority. Otherwise. upon occurrence of a dis MICHAUD V. MORRIS: pute, an oppression claim will surely follow. FLOWERING OF THE TORT The potent reach of an oppression claim suggested in Ex Parle Brown was established in the recent decision of Michaud ~ AILABLE REMEDIES FOR OPPRESSION v. Morris, 25 ABR32 at 6495. In an odd approach to appellate I "As: : e you bring suit for the minority for oppression. judging consisting of ruling without reasoning, the Court What relief is available? Under Ex Parle Brown, Michaud and affirmed summarily without opinion jury verdicts on oppres other cases, the minority shareholder has a breach of fiduciary sion and derivative claims. Reactinglo this curious disposalof claim against the majority shareho lders for a judgment to a close case by cold fiat, Justice Maddoxwrote an excellent recover his proportionate share of distributions paid to them analysis of the facts and the law. What was clear from his opin during the period of oppression. ion and Justice Houston's dissent was that the majority had This claim has great leverage: il is directed against the found that termination of a minority shareholder's employ majority shareholders individuallyand not the corporation. At ment aloneestablished an oppression claim. trial, the minority shareholder would compute all income (in In Michaud,plaintiff Morris was a 25 percent shareholder in whatever form) received by the majority from the corporation a corporation that operated a restaurant in Huntsville. Morris during the period of the squeeze-out and request a verdict operated the restaurant as general manager until February based on his percentage of ownership in the corporation. For 1988, when the majority terminated him as general manager example, if an 80 percent shareholder has received a million of the restauranL Id. at 6496-97.Morr is brought both an indi dollars in distribution during the period of oppression and a vidual oppression claim and a derivative claim for damages to 20 percent shareholder has received nothing, the minority the corporation. Id. at 6496-97. But, unlike the typical deriva shareholder seeming ly would be entitled to a verdict of tive claim, he sought damages to be awarded to himself, not to $200,000. What must be determined by the court in future the corporation under the majority's contro l. Id. The jury decisions is whether the majority is entitled to a credit or dis awardedMorris compensatorydamages on the derivativeclai m proportionate share of earnings for operating the corporation for injury to the corporation in an amount of $150,000.00 and on a day-to-day basis while the minority may not be so bolh compensatory and punitive damages on the oppression employedand may have devoted his energies to other endeav claim. Id. ors. Since the majority may have prevented the minority from In his well-reasoned opinion, Justice Maddox concurred in employment and has engaged in oppression, does he forfeit the summary affirmance of the oppression claim, but dissent any credit under the Faithless Servant Doctrine? Determining ed on the derivative verdict (see discussion below) on grounds oppression and fairness in this "gray" case will be substantially that no breach of fiduciaryduty to the corporation was shown more difficult than the "black and while" setting of a total in light of the business judgment rule and that this claim for deprivationof benefits to the minority. damages duplicated the oppression claim. Id. at 6498-507.Cit A second potent remedy is the right, under Ala. Code § L0- ing Ex Parle Brown, Justice Maddoxindicated that the firing 2A-195(a)(l)(b), to dissolution of the corporation if the major of Morris as opposed to the pursuit of "alternatives that ,,•ould ity's actions are "illegal, oppressiveor fraudulent~. See,Belch have allowed him, as an experiencedmanager. to remain as an er v. BTNB. 348F'. Supp. 61 (N.D.A la. 1968). Simply put, if the employee of the restaurant". made out a primo facie claim of majority oppressed the minority, the minority shareholder is 112 I March1992 THE ALABAMALAWYER entitled under this provision to have the corporate assets liq 1980), the Supreme Court of Alaskaheld that the remedy of uidated, and his share of the net assets paid to him. forced buyout was available to a minority shareholder in a The AlabamaSupreme Court. in Abel u. Forres/ Rea/lg. 484 close corporation. Alaska Plastics. Inc. consisted of three So.2d 1069. 1072 (Ala. 1986), held that dissolution Is an shareholders, all of whom were active in the corp0ration. extreme remedy to be granted only upon a clear showing of Upon Lhe divorce of one of the shareholders, one-half of his entitlemenL At the same tlme. the court. in Altoona Ware stock was awarded 10 his ex-wife.The ex-wife,who was not house Co. o. Bgnum, 242 Ala. 40, 7 So.2d 497 (1942) recog active in the business and did not receive a salary, received nized that corporate dissolution is appropriate where the several offers from the majority lo purchase her stock. all of majority has failed to manage the corporation in accordance which she felt were inadequate. Finally,she brought an action \~ith the interests or all shareholders. There is an increasing claiming stockholder abuse and squeeze-out. Alaska Plastics, trend throughout the United States to enforce this dissolution Inc., 621 P.2d at 272-73.Th e trial court ordered the majority remedy in some form where oppressionis proven. to purchase her shares, but the Supreme Court of Alaska For example, in Maller of Kemp & Bea/leg, Inc., 64 N.Y. 2d reversed and remanded for a determi11ation of whether a more 63, 484 N.Y.S.2d 799. 473 N.E.2d1173 (1984), lhe New York appropriate remedy was avilllable./d. al 272. The court specifi Court or Appeals, upon a finding of oppression. held that disso cally held that Alaskastat utes, like Alabama.a llowed dissolu lution 1"1aSthe only appropriate remedy.subject to an opportu tion as an extreme remedy to a minority where the acts of the nity for the majority to purchase the minority's shares. Like majority were "illegal, oppressiveor fraudulent". Further, the the Alabama Supreme Court, the court of appeals defined court held that upon such a showing by the ex-wife, on appression as the elimination of the minority's •rea50nable remand, the trial court's order lo purchase the sharescould be expectations· including a job in the corporation,a share of its juslified"as an equitable remedy ll'SSdrastic than liquidation: eamin~. and n role in managemenLNa/fer of Kemp & Beat Id. at Z75. ley. 484 N.Y.S.2d at 805. Defeatingthese expectationscreates It is this author's view that if the oppression is intentional. a claim for oppression and the remedy of dissolution. Id. at systematic and continues over a sustained period of time. as 805-06. opposed to a brief period. the AlabamaSupreme Court should Accordingly,a minority's claim for its just share should be and will recognizea required bu)IOulof the minority as a legit joined wilh a claim for dissolution. As dissolution is an equi· imate alternative remedy lo a dissolution. This is particularly table claim, in a jury trial this remedy can be imposed by lhe true since a minority shareholder often will receive more for court if the Jury decides the factual issues of oppression in his shares in a buyout than from a forced liquidation, which favoror the plaintiff. will disrupt the lives of employees, lower the value of the cor Because of the draconian impact of a dissolution, and possi poration's assets and may create grave tax liability. Another ble extreme tax consequences thereof, a trial judge will be possibleremedy is appointment of a receiver lo sell the corpo reluctant to order dissolution. Thus. a litigator should plead ration to a third party at the highest p0ssiblevalue. Another alternativesencompa5sed within this equity jurisdiction. less intrusive remedywould be keepingthe corporation intact, As a chancery court, the court's equitable powersin this sit but appointing a receiverto detennine appropriate compensa uation are enormous. The supreme court has recognized the tion for shareholders. This remedy would be more appropriate power of equity courts in Alabama to fashion appropriate where the oppressionhas been short tenn, and less extensive remedies: adjustments can be made to return the parties to equity. Ob,•iously, the remedies chosen should fairly meet the When a court of equity acquires jurisdiction of a cause length, nature and degree of the oppressionin order that the for any purpose, it will retain ii and do complete justice court achieve the legitimate expectationsor the minority and between the parties, enforcing, if necessary,l egal rights preserve the majority's rights of management and continua and applyinglega l remediest o accomplish that end .•.. tion of the corporation's life. In most cases, the best approach will be to fashion remedies, as in /Jelcher, toward the majori Billingsley u. Billingsley, 285 Ala. 239,242 , 231 So.2d 111 ty's buyout. al fair market value. of the minority so that the ( 1970). company may conlinue. The important case orBelcher v. BTNB, 348 F. Supp. 6 l (N.D. Ala. 1968), Illustrates the importance of a nexlble approach to remedies for oppression. In Belcher. Judge Croomsheld that defendantshad breached their fiduciaryduty TELEPHONE EQUIPMENT thereby creating a right to dissolution under the statute. Id. at Buy • So l - Install • Ropalr 152. The court. IIOl\·e\'er,declined to use dissolutionbecause it would cause the loss of 300jobs and would result in extreme AT&T, BELL, ITT, EXECUTONE, etc. tax consequences. Id. Instead, the court directed Lhat the • 5 Button Mer1ln• $150 ' majority redeem the minority through a like kind exchangeof One Year warren Tl corporate assets equal Lo the value of their shares. Other courts have required the majority, upon pain of dissolution, to 1-800-239-5655 purchase the minority's shares. Balvik v. Sg/ues/er, 411 WARREN TELECOM , INC. N.W.2d 383( N.D. 1987). fl"\ Hwy. 280 E. Cnlldersburg in Alaska Plastics,In c. u. Coppock, 621 P.2d 270 (Alaska \U THE ALABAMALAWYER March 1992/ 113 corporation's. Hardy u. Hardy, 507 So.2d 409 (/\la. 1987): INTERPLAY OF INDIVIDUAL Shelton v. Thompson,544 So.2d845 (Ala.1 989).A consequen OPPRESSION AND DERIVATIV E CLAIMS tial decrease in the value of Lheshareho lder's shares does nol Galbreathis an excellentexample of what can happenwhen vest in him an individual claim. Greenv. Bradley Construe· counsel does nol understandthe differencebetween derivative lion, inc., 431 So.2d 1226 (Ala. 1983):Steuens v. l,OUJdl!T,643 claims for injuries lo the corporation and the tort of oppres F.2d 1078 (5th Cir. 1981). But if the wrong is committed sion committed against shareholders. Derh•ativec:laims are directly against the shareholder and his interests, such as g011emedby AlabamaRules of Civil Procedure 23.1 and are oppressionor fraud, so that his injury ls unique, he will have based on the majority's breach of his fiduciaryduly owed to standing to assert individual claims. McDonald11 . U.S. Dit the corporation. This duty was succincUydefined in Holcomb Casting & De11.Co. , 451 So.2d 1064 (Ala. 1989). As the v. Forsyth, 216 Ala.486. 490. I 13 So. 516 (1927): supreme court noted in Ex Porte Braum.misappropriation of corporate opportunities and other misconductgiving ri.se to "Whiledirectors of a corporationmay not be in the strict derivam.-eclaims may also be a~dence of a pattern of oppres sensetrustees. it is well establishedthat the)· occupy a sion against the minority. The bottom line of this confusing quasi fiduciaryrelation to the corporation and its share. overlapis. when in doubt, a litigator should allege the c:lnims holders ... Theyare required to act in the utmost good both dl!rWOlivelyand indi11idually. faith and in accepting the office.they impliedlyunder· It is important to note that derivative claims offer two take to give the enterprise the benefit of their best care ad,•antagesover individualclaims. First, the derivati~ plaintiff and judgment, and to exercisethe powerconferred sole conveys a benefit on the corporation, thereby entitling the ly in the interest of the corporation. . . Equity lwill hold) plaintiff lo recover attorney fees. Absenl fraud, attorney fees lhem liableas trustees." will not be availableon individualclaims ror oppression.In Ex ParleB ro1un,562 So.2dat 496, the supreme court endor:1tda Holcombv. Forsyth, 216 Ala.a l 490 (quoting 7 R.C.L.456 § fee basedon a percentageof moniesrec011ered ror the corpora• 441 (other citationsomitted)). lion. The court chose this "commonfund" approachover the lodestardoctrine (hours devotedp lus a multiplier)commonly This duty or good faith Is now codlneda t Ala.Code § 10-2/\· applied by federal courts. in doing so, the court approved n 20 74. This statute requires the director to act "in goodfai th, in a percent fee.Id. manner he reasonably believes lo be in lhe best interests of The second advantage is that limited defenses based on the corporationand with such care as an ordinarily prudent plaintifrsc ulpabilityare availableIn a derivativeaclio n. Bslop person in a like position would use under similar circum· pel, waiverand contributoryneg ligence may bar an Individual stances." claim. particularly if plaintiff benefitledor p.irticipatedi n the This breach of fiduciary duly owedlo the corporation should illegal acts. Goldman v. Jameson,290 Ala. J60, 275 So.2d 108 be distinguishedfrom the tort of oppressionwhich is an lndi (1973):Hardy v. Hardy, 501 So.2d at 409. But they will no1 vidua.1 claim for the majority'sbreach or fiduciaryduty owed bar derivative claims brought by lhe corporation unless Lhe directly to the individual minority shareholders.As shown in individualsparticipated in Lhemisconduct. They may, howev• Michaud,derivative c laims may also be availablelo the corpo er, disqualifythe tainted minority shareholderas an adequate ral.ionin an action of oppression.TI1e most common example derivativeplaintiff under Rule23.1 . is theft of corporate opportunity. Under the fiduciary duty WhileAlabama courts have traditionallyheld that damages owed the corporation, lhe majority shareholders may nol recoveredon behalfof the corporationin a derivali\-eac tion go "divert lo their own favor, or for the bend ll of competitive lo the corporation, the court recently in Michaud, supra, corporations, business which should properly belong to the affirmeda judgment for damageson a derivati,•e claim to the company which they represent, . . . • Banks u. Bryant. 497 minority shareholder. As noted above, the majority opinion So.2d460 , 463 (Ala. 1986)(quoting 19 C.J.S.Corporations , § offtred no reasoning for this holding. but Juslice MaddoJt, in 784 (1940));Morad u. Coupounas, 361 So.2d 6 (Ala. 1978). his concurrence, noted that courts in other states reasoned Thisrule may applyeven though the corporation will havedif that awardingdamages to the corporationwould benefit only ficulty financingthe transactionand as a result. the majority the wrongdoerswho are in control. Hence. the award should has rejected the opportunity. The remedy for the corporation be paid to the minorityshareholder . is a constructivetrust lo be imposedon its behalfover the net The dear lesson from Michaudis that derivativeclaims for profits or property resulting from the corporate opportunity. damages 10 the corporationshould be sought for the individu. Coupounas,supra at 8. At lhe same lime. the dissolutionrem al shareholder. particularly if the majority is in control. As edy is also availablein a derivativeaction under Ala. Code § shown in that case, the oppressionand individualc laims may 10-2A-195.Section 10-2A-l95(a)(l)(d) permits involuntary be basedon the sameset of facts. dissolutionwhen "the corporaleassets are being misappliedor wasted.... " .:·~ As explained in Galbreath,the primary differencebetween BUSINESS JUDGMENT RULE ~eri~ativeand individual claims is one of standing, and stand· There can be no doubt that the torl of oppression has mg 1sdetermined b y Lhe directnessor the injury. If the wrong hastened the erosion of and perhaps eventua I demise of the directly damages the corporation and its assets from waste. businessj udgment rule in its Lraditional form. Whilethe rule conversion and intentional mismanagement. the claim is the historicallyafforded insi ders free rein to manage the corpor;,. 114 / March 1992 Tl IE AI./\BAMALAWYER tion fret of constraints, other than fraudulent conduct. in its ested committee appointed to Investigate the claims. Better present fonn. it still shields management from simple negJi. yet, such a practice should be placed in the corporation's by gence, incompetenceor poor businessjudgment , but not from laws as an expre.ss policy. Speedy corporate action in this intentional misconduct or perhaps even grossly negligent fashion may "nip in the bud" pesky derivative claims or at decisions.The Supreme Court definedthe rule this in Jonesu. least delaythem for months. For plaintirrs counsel, if there is Ellis.551 So.2d 396, 400-01 {Ala.1989): any reasonable chance or showing futility {and there usually is in a close corporation), he must skip the demand and file {W/11start with the propositionthat this Courtgenerallv suit. wi/11101inter/ore with /he internal business manage ment of a corporation.liowever, we recognize that this ~ rule does not apply in cases of fraud or maladministra HTS OF DISSENT AND APPRAISAL tion that ls destructive or injurious lo a corporation No discussion or minority shnreholder rights would be (cilalions omitted). Furthermore, this Court has recog complete without passing mention or the statutory rights of nized that a director is liable for losses to the corpora· dissent and appraisal. Governed by Ala. Code § 10·2A·162, a tlon resulting from his intentional departure from duty, minority shareholder has right to dissent from a merger or fraudulent breaches of trust. gross negligence or ultra a consolidation of lhe corporation or a sale or exchange of its vires acts (citations omitted). Absent such circum assets outside the ordinary course of its business. Upona dis stances, however.a director is not liable for losses suf. sent, he has a right to a Judicial appraisalof his shares and to fered by the corporation if he has acted in good faith. be bought out at fair market value.The circuit courts may use This is referred to as the "good business judgment rule" any number or accepted methods in valuing the stock. In most (citationsomitted). cases. attorney fees and expensesmay be assessedagainst the corporation, except the court may all or a portion or Furthermore, a director is entitled lo a presumption or assus them against dissenting shareholders who arbitrarily refuse a good faith. but this presumptionwill be overcomeby the reasonable buyout offer. The critical battle in an appraisal presence or factors sufficientto influencehim lo do oth· action usually will be over "fair value", a term or art always erwise. susceptibleto different interpretations in a closely held corpo ration. However, if the merger is part or a course or oppression This presumption or good faith separates the insider Froma to squeeze out the minority, the court may grant other relief, trustee which suffers the fate or a higher standard or care including an award of a percentage of disproportionatedis tri under the prudent investor rule. While a trustee may be butions to the majority or factoring them in as corporate liable for Imprudent investments. or negligent management assets In a determinationor value. or trust assets, the majority's presumption or good faith immunizes him from imprudent management or corporate assets. absent some wrongful sdenter or fraud. Jones v. Ellis, 551 So. 2d at 402; FirstAlabama Bank of Huntsville,/II.A. u. CONCLUSION Spragins, 515 So.2d 962 (Ala. 1987). Thus, if a minority With the clash of competing policies of majority control shareholder alleges a breach of fiduciary duty based on poor and the minority's right to a just share or corporate distribu or incompetent business decisions,he or she must overcome tions, lhe tort of oppressionwill freQuentlybe litigated over the presumption or good faith imposed by the rule. Absent the next several years. Refinement of this area of the law is proof or irllentional misconduct or gross negligence, this dependent upon a proper understAndingor the distinct, but burden will be too great. overlapping, nature or these claims with the derivativerights The business Judgment rule retains a special vitality with or the corporation. The courts should and will continue to respect to derivativeclaims. Rule 23.1 of the Alabama Rules or fashionsha reholder rights and remediesbased on the reason Civil Procedure requires that prior to suit U,e plaintiff make able expectations of the minority shareholder to ownershipof demand on the board or directors for relief unless the corpora capital with meaningful value and liquidity, some voice in tion is under the wrongdoer's cont rol thus making lhe management, and in many cases, employment. At the same demand futile. Goldmanv. Jaml!Son,290 Ala. 160. 275 So.2d time, the bench and bar must develop meaningfulparameters 108 (1973). The demand requirement can be a trap. Indeed, a so that the majority·srights lo set policyand reasonablyman plaintiffwho makes demand first may ne-.-trget his derivative age the corporation will be protected from unjustified inter· action off the ground. The reason is the business judgment ference. rule. UnderRoberts v. AlabamaPower Co., 404 So.2d 629 (Ala. An amorphous tort with no bright lines or dear rules (e.g. 1981). the majority,upon receipt of a demand. may refer it to interference with business relations) benefits no one as it a committeeof "disinterested"directors. If the directors decide yields no prediction as lo what will be found lo be proper or that the litigation is not in the corporation's best interest and improper business conducL In developingthe tort or oppres this decision is clothed with goodfaith, the businessj udgment sion, there are, in the words of Robert Frost, miles to go rule applies,barring the litigation and judicial reversal or this before we sleep. While achieving clarity will be difficult, par decision.Roberts, 404 So.2dat 632. ticularly in the many "gray" areas or intrncorporate relation· The capable allorney fortunate to receive such a demand ships, shareholders, jurors and trial judges deserve nothing prior to suit should immediately respond by having a disinter- less. • THE ALABAMALAWVER March1992 / 115 ABOUTMEMBERS, AMONG FIRMS the linn as an associate.Offices are loc.at ed at 51 Monroe Street, Suite 1500, Rockville,Maryland 20850. Phone (301) C. Jackaon Perldna announces the Paden & Paden announces that 424-8673. opening of his officeat 2001 Park Place, Hugh 8. Harri,, Jr. has joined the Robleon & Belier announces that Suite 465, Park Place Tower, Binning. firm as a pnrtner and A. Scott Roebuck Cha rle, B. Pater aon and Robert F. ham, Alabamn35203. Phone (205) 328- has joined the firm as an associate.The Northcutt have joined the firm as 7375. firm name will be Paden , Pad en & members and Scotl R. Talking to n , Walter M. Northcutt announces the Harri s. Officesare located at 1722 2nd formerly .issociated with the firm, has opening or his officeat Northcutt Build Avenue.North, Bessemer,Alabama, and becomea member. Officesare locatedat ing, 248 S. Cay Street. P.O. Box 889. the mailing address is P.O. Box 605. 210 Commerce Street, Montgomery. Auburn. Alabama 36831-0889. Phone Bessemer35021. Phone (205) 4~090. Alabama36104. and the.mailing address (205)826-0944. Altman , Krltur & Le\!ick an is P.O. Orawtr 1470, Montgomery Tb.e Law ornce of Tom F. Yoong, nounces that Elizabeth Rolland 36102.Phone (2051834-7000. Jr . announces a change or address to Rutchlna hasbecome an associate.with Burr & Forman announces that H. 2001 Park Place, North, Suite JOJO, offices located at 6400 Powers Perry Graham Beene, Deborah P. Fisher , Birmingham. Alabama 35203. Phone Road,NW, PowersFerry Landing,Suite Richard A. Ftteae , Cail Ll\!ingstoo 1205)252-9463. 224,Atlania, Ccorgia 30339. Phone (404) Milla , and John C. Morr ow have Patrick B. Collin• announces the 955-3555. become partners in the firm . and opening or his ornce at 2033 Airport Bell , Richardson & Spark man Chrl 1topher W. Weller, E. Britton Boulevard, Mobile, Alabama. The mail announces the change or its name to Monroe, J ohn M. Rolfe, Jr., Warren ing address is P.O. Box66753, Mobile Bell Rlchardgon, P.A., effectiveJu ly I. C. Matthew•, Peter H. Burke, Brian 36660.Phone (205)476 -2015. 1991, and that M. Bruce Pitts has M. Clar k, Gerald P. Glllespy , G. John H. Nathan announces the becomeassociated with the firm Offices Bartley Loftin, Ill , Timothy M. opening or his office in The Massey are localedat 116South JeffersonStreet, Lupinacci, and Edwin O. Rogers Building. 290 North 21st Street, Suite Huntsville, Alabama and the mailing have become associated with the firm. 200. Birmingham. Alabama35203. The address is P.O. Box 2008, Huntsville The firm hasoffices in Birminghamand mailingaddress is P.O.BOK 1715, Binn 35804.Phone (205) 533-1421. Huntsville,Alabama. ingh.un 3520I. Phone (205)323-5400. Sprigg, & B0lllng1wortb an· Beasley, Wlboo , Allen, Mendel, L Scott J ohnson , Jr. hasrelocated nounces that John D. Bond , m has aohn , Jemlgon & Jamu announces his praclict to Montgomery where he become a member or the firm, with that Jamu Allen Main and Michael will be of counselto Perry O. Hooper, offices located at 1350 I Street, NW. J. Crow have become mem!Kn.or the Sr., 456 South Court Street, P.O. Box Ninth l'loor. Washington, DC 20005- firm. Officesare located at 207 Mont· 1547, Montgomery36104. Phone (205) 3305.Phone (202)898-5800. gomery Street, 10th Floor. Bell Build· 834-3200. Albritton• , Gl\!han & Clifton ing, Montgomery.Alabama. The mailing Bob Wllllam1 announces that he has announces that William Bruce Alver• address is P.O. Box 4160. Montgomery been appointed public defenderfor Shel 100 , Jr , hns become a member of the 36103-4160.Phone (205)269-2343. by County,Alabama with officesl ocated firm and the finn name has beenchanged Pittman & Pittman announces the at the Shelby County Courthouse. The to Albritton , , Givhan , CUft on & relocation or Its Mobile office to 1111 mailfng addrus is P.O. Box 1652, Alverson.. Officesare locateda l 109 Opp DauphinStreet, Mobile,Alabama 36604 Columbiana, Alabama 35051. Phone Awnue,Andalusia, Alabama 36920. and the association or Richard (205)669-3806. Lyons , Plpu & Cook announces Fuquay with the firm. The mailing Ronald A. Davldgon announces the that Jo hn C. Bell and Richard D. address Is P.O. Box 40278. Mobile relocation or his office to 2230 Third Moniaon haveb,ecome associated with 36640-0278. Phone (205)433-8383. Asenut. North, Birmingham, Alabama the flnn. Officesare located at 2 North Balch & Bingham announces that 35203.Phone (205)251-0285. Royal Street, Mobile, Alabama 36602. Karl R. Moor has relocated from the Edward A. Hyndman , Jr . an Phone (205)432-4481. Binningham office to Washington,OC. nounces the opening or his officeat 150 The Law Flrm of Janlce M. Bel· His office 10111be located at 1667 K Government Street, Suite 3001-B, lu ccl announces that O. Kevi n Street, NW,Washington 20006. Phone LaClede Building , Mobile, Alabama Vincent , formerly of Cabannis, John (202)296-0387. 36602. The malling address is P.O. Box ston. Gardner,Oumas & O'Neal and for Slrot e & Permu tt announces that 295, Mobile 36601-0295. Phone (205) merly or the office or general counsel. Shery ll D. Caahln , Albert L. Vree· 433-9696. Departmentor the Air Poree, has joined land and Jam ea Sa rven Williams 116 / M.i.rchl992 THE ALABAMALAWYER have become associates in the firm·s Vance, Jr. and Rlchard J. Brockman Jonathan L. Tindle announcethe open Birmingham office, that Fnd L. Cof have become partners in the firm. The ing of their office. effective January 6. fey, Jr. and J . Jeffery Rich have officeis locat.ed al 1100Park PlaceTO\\v. 1992. Offices are located at 1724 3rd become associates in the Huntsville Birmingham, Alabama 35203. Phone Avenue, North. Bessemer. Alabama office.and lhal M. Frederick Simpler (205)322-0616. 35020.Phone (205) 424-1188, 1186. has become associated with the Mont Rosen, Cook, Sledge, Davis, Car Cearhlser , Pden & Borton or Chat gomeryoffice. roU, Jones & Adcoxannounces that M. tanooga, Tennessee announces that Davia & Nnl announces that Linda Bradley Almond, formerly of Eyster. Michael A. Anderwon, formerlyof Skin C. Smith , former law clerk to U.S. Cir Key, Tubb, Weaver& Roth. has become ner & Anderson in Birmingham, has cuit Judge Joel F. Dubina and Alabama associaled"~th the firm,effective January become a partner in the firm. The firm's Supreme Court Justice Kenneth F. 13, 1992.The mailingaddress is P.O.Box address Is 320 McCallieAvenue, Chat Ingram, has become associatedwith the 2727,Tuscaloosa. Alabama 35403. Phone tanooga37402. Phone (615)756-5 171. rirm. The Montgomeryoffice is locatedat (205)345-5440. S. Wayne Fuller and Dan J. W!U 4144 Carmichael Road, Montgomery, R11J1mondDoual as Bums, Jr. and lngham announcethe formation of their and the mailingaddress is P.O.Box 4008 , Montgomery36103-4008. Phone (205) 244-2097.The firm also announces the relocation or its Opelika office to 2210 Hamilton Road. Suite C, P.O. Drawer 711, Opelika, Alabama 36803-0711. Phone(205) 745-2779. J . Pletcher Jones announces that Charles A. Short . former law clerk to Alabama Court or Criminal Appeals Judge John M. Palterson, and John Fletcher Jonea, Jr. , former staff attor ney to AlabamaS upreme Court justices Hugh Maddox, Richard L. Jones and l THEALABAMA LAWYER March1992 I 111 new partnership to be knownas Fuller changed to Rosen , Cook , Sledge, Suzanne Alldrtdtle, Debra A. Carter , & Wllllnllbam , 413 Isl Avenue,SW. Davia, Carroll, Jonu & Adcox, P.A. Gregor y C. Cook, Marcel L. Cullman. Alabama35055 . Phone (205) Officesare locatedat 1020 LurleenWal Debrulle, David L. Demon, LYie D. 734-2023.9411 . lace Boulevard, North, Tuscaloosa , Larson, Colin Luke, and Phillip A. Mantlpt, & Auoclatu announces Alabama. The mailing address is P-0- Nicbol. have become associated with that Lynn C. JIIIUtt, formervice-presi Box 2727, Tuscaloosa 35403. Phone the firm's Birmingham office, and dent and general counsel for Samco (205) 345-5440. Leslie M. All en and James E. lm,w:ments.Inc., and A. E\laru Crowe. Thorin llton & Gre1&oryannounces Bridges , m have become associated former staff attorney to H. Mark that Pam ela L. Mabl e. former law with lhe Montgomeryoffice. Kennedy and law clerk to J. Gorman clerk to Chief Justice Sonny Hornsby. Ritchie & Rediker announces that Houston, Jr., have become associated Jr., has becomeassociated wi th the fini,. Steve P. Gret1oryhas joined the firm as with the firm. The malling address is Officesare located al 504 South Perry an associate.The mailingaddress is P.O. P.O. Box 898. Mobile, Alabama 36601. Street, Montgomery,A labama.The mail Box I 1683, Birmingham, Alabama Phone (205)433 ,3544. ing address is P.O. Drawer J748, Mont 35202-1683. Phone (205)251-1288. E\lane , Jon es & Reynolds gomery36102. Phone (205)834-6222. As of November11. 1991,Robiso n & announcl!$the relocationof its officesto Quinn , Arndt & Manning an Llvin1&1ton hasbeen dissolved.Robert 1810 Dominion Tower. 150 Fourth nounces that Franldln Crad.YShuler , Robl1on'1 mailing address will contin Avenue, North, Nashville, Tennessee Jr ., formerly a partner with Cooper. ue to be P.O. Box 86, Newton,Alabama 37219.Phone (615)259-4685. Mitch. Crawford,Kuykendall & Whatley 36352.and Anthony Llvlntlaton's new Roan , Harwood, Cook & S.ledge, in Birmingham.has joined the firm_The mailing addreu is P.O. Box 445. P .A. announces the withdrawal of mailing address is P.O. Box 73, Daleville.Alabama 36322. Robert B. Harwood, Jr. from the firm. Columbia,South carolina29202. Phone Lange , Simpson , Robinson & effective October 9, 1991 upon his (803)n9-6365- Somerville announcesthat Kathryn s. appointment as circuit judge o( Fo, ter 6t Curenton announces lhe Carver has become a member of the Tuscaloosa Count)•. The firm also associationo( Ja .mu M. Orr, Jr. The ftnn al its Birminghamoffice, located at announces that Ronald L. Da\lia finn has officesin Montrose,f'oley and 1700 First Alabama Bank Building, becamea membero( the firmNovember BayMinette. Alabama. Birmingham, Alabama 35203. Phone ), 1991a nd thal the firm name has been Balcb & Blnt1bam announces that (205)250 -5000. Smith, Spirea & Pedd,Ya nnounces that Teresa Tanner Pulllam and Jamu L, Stlrll nll, Jr. have become associates. Offices are located at 650 FinancialCenter, 505 North20th Smet, Don't Risk A Valuation Birmingham. Alabama 35203-2662. Pbone (205)251-5885. Penalty. Introduce Webb , Crumpton , McGregor , Daris & Alley announcesthat CTa.ig s. Dillard and Dal')II L. Masters have Your Clients to Business becomemembers and E. Wray Smith, Bart Hannon , Mary E. Pile.her and Valuation Services. Roy Wylie Granger, m have become John H. DnvisIll, PhD, MAI, SRPA. ASA, prcsidemo(Business associates. Offices are located in the Valuation ServicesI nc., is the only designated ASA BusinessVa l Colonial Pinancial Center, One Com uation appr~iser in Alabama. BusinessValuation Serv ices provides merce Street. Suite 700. Montgomery, consultation by the hour;appraisa l reports and expert testimony Alabama36 101-0238.Phone (205) 834- incaseso(: 3176. Potta & Vounll announces that D Esroreplanning D Bankruptcy proceedings Debn Hendry Coble, former lawclerk D Estatesettlement D Mergersor acquisitions to James Duke Cameron of the Arizona D Man ail d1SSOlutions D Buy-sell agreements Supreme Court, has become associated D Rec:apirol1za1ion~ D Dissident snx:kholder suits with the tinn. Officesare locatedat 107 D EmplO')'CCstock ownership East Colle11eStreet, Florence. Alabama plans 35631.Phone (205) 764-7142. N. John Rudd, Jr. and Ridt Grif Contact John H. Davis Ill. PhD. MAI. SRPA. ASA fin announce the opening of their 4 Office Park Circle • Suire 305 • Birmingham, Alabama 35223 offices, located at Brown Marx Tower, P.O. Box 530733 • Birmingham, Alabama 35253 2000 l&t Avenue, North, Suite 725, (205) 870-1026 Birmingham, Alabama 35203. Phone (205)328 -2606. 8 118 / ~larch 1992 Tm; ALABAMALAWYER BetweenDecember 14, 1991 and January31, 1992lhe followingattorneys made pledges to the AlabamaState Bar BuildingFund. Theirnames will be induded on a wall in the portion of the buildinglisting all contributors.Their pledges a re acknowledgedwith gratefulappreciation. (Fora list of those making pledgesprior to November 2, pleasesee previousissues of TheAlabama Lawyer .) JamesThomas Baxter , m l'rancis M. James. Ill RobertWayne Ruth Robert A. Beckerle WilliamL. Lee,Ill Gene M. Sellers Ollie L. Blan, Jr. Loyd H. Little, Jr. CliftonEddie Slaten DeloresR. Boyd VictorH. Lott,Jr. Stuart EdwinSmith Joseph BarrisBrogden DawnIlene McDonald James C. Speake Ronald~e Da,.;s Peter AllenMclnish James B. Sprayberry Joseph L. Dean,Jr. CrawfordS. Melton Jerrilee P. Sutherlin JefferyC. Duffey Thomas S. Melton Thad Yancey,Jr. Edgar M. Elliott, Ill 1.isaGessow Michelson lle/11J('(ft1 Oiicember./4, 1991 Cherie DianePeenker LouisPoe Moore andJanuarv 3 1. 1992lhe followingfirms madep/edg Curtis Mclarty Holder Thomas ReedRobinson Bradley,Arant. Rose& White MichaelWayne Jackson WilliamStanley Rodgers Owens.Benton & Simpson THE ALABAMALo\WYER March 1992I 119 etween July 1990 and June 1991, 1.8 million SMARTMOVES people lost Lheir jobs. Consumers are compar ing Lhe 1990s with the 1930s and the TO BEATTHE Great Depression, There may not be people standing on the corners selling apples, but the signs of hard times - people standing at intersections wilh RECESSION signs saying they will work for food are growing.The drive to squeeze costs and improveprofits is resulting in cost cutting, job freezes. layoffs,consolida tions, and takeovers.Bankruptcies con HowYouR LEGAL tinue to skyrocket. Consumer con fi. dence in the economy has fallen beneath the lowest level recorded dur SUPPORTSTAFF ing the 1982 recession.Even though the federal governmentcut interest rates to the lowestin 24 years, many businesses CANMAKE and consumers have "maxed out" on debt. In simple language: job growth in the '90s will probably be the slowest since the 1950s. A DIFFERENCE The downsizingthat occurred in the manufacturingsec tor has hit the service By MARYJO DENNIS sector in full force.Law firms are affect ed both internally and externally.They now face the same problems that busi nesses have been facing for the last five years (or ten, depending upon geo graphical propensities).Clients have less work to offer, increasing competition among law firms. Yet the clients still expectexcellence. not just quality. They still expect commitment and dedication to the ir cause by all involved. They expect us to have access to the latest information and to get to it quickly. Most still expect law fim1sto provide a host of extras - business counseling, legislative updates, even executive forums and referrals to the la1"firm 's other clients. The.y want more cost-effective legal service. They want specific prices, and they want deals. Expecting more does not mean increased fees. Market pres sures have driven down prices of some legal work by as much as 20 percent Some corporations, such as General Motors,are even tracking legal costs by using computers to compare costs of one legal firm againstanother. "There's a major difference in the lawyer/client relationshiptoday that col ors the entire processof deliveringlegal advice; said Sandra Yost, PLS, presi- 120 I March 1992 THEALABAMA LAWYER dent of the NationalAssociation of Legal Secretaries."Clients ha\lt becomemore sophisticated. They've seen how law n endangered n-house firms work on ltlevision,and however species training skewed lhal Image may be, it ha.scer tlinly changedthe public'sperception or Findinga goodlegal secretaryiC you In-house training is loo often a lhe legalprofession." do nol already have one can be a prob neglected parl or a firm's administra· Lawfirms are beginningto use a hosl lem. They are gelling lo be an endan lion. Bmployeesare often submitted 10 or waysor getting the businessand ser gered species.The demandhas not kepi baptism by Ore In the busy law firm. vicing the client. They are growing up with lhe supply,and the growth or On-the-job lrainlng can be intensive, more usedto such lncllcsas volume dis law firms into lhe next century will intimidating and overwhelming. Most counts, flat rees and pre-established exacerbate the current shortage. There lawyers lack the patience (and often prices, competitive bidding, blended are plenty or reasons.A 1991 surveyby time) lo bu II d an effectiveteam. They rates. modifiedconlingency fees, and the NallonalA5sociation or LegalSecre often expect immediateresults from a hourly rate discounts. They are also taries showedthat youngerpeople mov new secretaryon her firsl day.Although growingmore comfortable wilh market ing into the fieldha\lt less formaltrain this is not realistic.it may well be the ing and expanding marketing efforts. ing than they did five years ago. The norm. knowing full well that clients will be "babyboom· haspassed and there are In-house training for legal support more difficult10 reach. They are begin fewer candidates. Also, many young staff is a developing lrend. The trend ning to think moreglobally. Solo prac peoplebelieve they can earn more and hasalready blossomedin lhe business tices are popping up everywhere as do less work in other professions.The world. where such movementsusually more people become entrepreneurs legal secretarial position is ofien not surface before lhey do in law firms. whenthey can find no other Options. thought of asa profession,just a dead About 58 percent or the Fortune 500 Inside the firm, technology has end job with neither psychologicalnor companiesimplemented such training changed the way the work is handled. monetaryrewards. a goodjob for some, two or three yearsago, according to a Layoffshave cut down the labor over one Incapable or higher intellectual survey commissioned by Work ing head. There are now fewer people but pursuits. Salaries often reflect these Woman magazine. More than 90 per not necessarily less work. Manyfirms misconceptions. (Salaries across lhe cent or Fortune 500 companies will are downto the painl wherethey can no nation vary substantiallyby geography, offersuch training within a year or two. longerlay off without endangeringtheir but Alabamais typicallyon the low end The NALSMember Survey showe d thal abilitylo producethe work.This means or the salaryscale.) l I percent of the membersworked for that everyonein the firm must be dedi· But ii need not be any of those firms that orfered formal in-house cated lo prOYtdingthe best possibleser things. A skilled legal secretary can training. The NALSTop 500 Law Firm vicesand 10 enhancingthe lawyer-client make the law oCCiceoperate more Survey showed that 25 percent of the relationship.All individualsin the firm smoothlyand efficiently.Expanding her rupondenls offered formal in-house must work smarter. And there is a way. role can be an effective element in a training. By expandingthe traditionalrole or lhe firm's cost-culling equation. She can "Attorneys are beginning lo under legal secretary and the legal support become a para-professionalwho han stand the importance or continuing staff.the lawfirm can maximizeproduc dles computerized litigation.billing, legaleducatio n for their staff,"said Cale tivityand minimizecosL~. document assemblyand computerized Round, president or Cale Round& Asso on-lineresearch. She can free an attor ciates, Phoenix.Round was a legal sec ney up lo practke more law, streamline retary for 25 years before she began a the administrative process,and provide companyth.it providesin-ho use train Mary Jo Denn is ~~ty Jo Dennist'las. direction to receptionists, secretaries ing in lawfirms. ""°a legal secrewy and other officeworkers. And some or Round feels that training for staff is b 22 yea.rsand C!lM'· those tasks canturn into billabletime. imperalhx:." It's difficultfor lawyersto ,eoUy ,et\,1t$ 8S pre. _,o1meA1a1>ama Mostlegal secretaries choose the field service c.lienlSaway from the office if becausethey are interestedor intrigued the staff members don'l know what --Secretar-Sbewascl Legal by the lawbut lack the lime, dollarsor they're doing. ICthe staff can run the ....,,od....p TMEALABAMA LAWYER March1992 / 121 lated "investing" in their staff since taries will be beating down the door. or skills that need to be taught. The les they believedturnover to be high. But Whenother support staffsee the knowl son plan is customized for each law that is a misconception.The NALSsur edge others have gained, the trust that firm," said Round. Her services cover a vey ind.icatedthat 52 percent have been is placed in them, and the teamwork wide variety of topics, such as testing in the professionmore than ten years. that develops,they will want to work for for new employees, as well as training and another 24 percent have been in that firm. New law associates will also in specificareas on basic, intermediate the fieldsix-ten years. recognize an atmosphere where people or advancedcurriculum levels, Includ Some lawyers believe that legal sup· care whether they succeedor fail. ing word processing training. Round's port staff are not particularly interested Effectivetraining is an investment in instructors must have at least fiveyears in education. However, the NALSsur human resources with both immediate of legal experiencei n their specificarea vey showed that 32 percent of those and long-range returns, such as: of instruction. who work for law firms have two-year Job satisfactionis improved; community /junior college degrees. • Confidenceis increased; Another 22 percent have bus iness Better morale is evident; school training. Nine percent have A teamworkconcept is established; rofessional bachelor's degreesand another six per Productivityand quality of legal ser ___, associations cent havepost-graduate degrees. vices offeredby the firm is improved; Leadership develops among staff as Another option is education and well as attorneys; training through professional associa eys to successful Managerslearn more through teach tions, such as the National Associa ing and improveteaching skills; tion of Legal Secretaries. Th"e NALS training program • Loyaltyis instilled; and mission statement clearly shows its Setting up a training program is not Coals are solidified; strengths and commitment to the lega l support easy. Scheduling is often difficult for weaknessesare identified. industry , to the "delivery of quality lawyersas well as support staff. Persis legal services through continuing tence is important and the program education and increased professional must be continuous. ism, promoting a standard for mem Implementing such a program in ontinuing Legal bers and recognition in the legal pro volvesthree keyelements: ' Education fession through the certification pro ~~~~ • Orientation - to acquaint new gram." employeeswith practices and proce For those who lack time or. want The tri-level association promotes dures of the firm; more than their own expertise to tra.in continuing legal education on the Concentration in a substantive law support staff, they can turn to experts local, state and national levels. At a area - to sharpen the skills of cur such as Cale Round. "Lawyersmay have recent annual meeting in Chicago, for rent employeesin an area of specialty the expertise to teach the courses, but example. over l 00 hours of education and to introduce new employees to few of them have the time," she said. were offered, including such topics as certain areasof practice;and "It's hard to justify pulling themselves media vs. privacy; trial presentation; Enrichment- to makeemployees feel away from what earns them dollars to automobile personal injury; Chapter important, knowledgeable and neces- conduct courses that might result in 11 bankruptcy; marketing the law sary to effectiveoperation of the firm. increased productivityand , thus, more firm; rethinking RICO;products liabil dollars." ity; support staff contribution lo busi The 1991 NALS member survey ness development; art vs. obscenity; showed Lhat a third of the 3,449 who children in the courts; and environ ositive side responded worked for firms that offer mental impact issues, as well as basic effects educational leave, such as paid profes skills and technology courses. The sional leave or continuing legal educa Alabama Association of Legal Secre In-house training for staff by man tion for their support staff, while 4 7 taries is sponsoring five seminars this agers and lawyers can reduce turnover percent of the firms offer paid contlnu· year, and each of the 12 local chapters and save the firm money, according to ing legal educational opportunities. A offers education at their monthly the NewJersey /.,aw Jou ma/. Depending companion survey by NALSof the top meetings plus periodic seminars. In on the firm's location, turnover costs 500 law firms showedthat 38 percent of addition, NALSprovides curriculum for legal secretaries can run between the respondentsoffered paid continuing for legal training courses for both $10,000 and $25,000. Keeping good legal opportunities.Another 16 percent beginning and advanced legal secre support staff should be every firm's offered additional educational leave, taries, as well as in-house and individ goal, particularly when turnover costs such as paid professional leave. ual study courses and several educa are high and replacementd ifficult. "A law firm tells me what they need, tiona l texts. NALS has authored a Firms that have in-house training and we develop a plan based on those number of manuals for administrative programs find that recruitment needs, determined by the number of purposes as well, including a policy becomes easier. Qualified legal secre- peopleto be trained and the areas of law and procedures manua l, applicant 122 / March 1992 THE ALABAMALAWYER skills tests, and guidelines for con Attaining this goal demonstrates Just as lawyerscontinue their edu ducting performanceappraisals . dedication to the profession . Even cation through special course.s and "Dollarfor dollar.NALS is one o( the those who do not passthe examination seminars, you can help your support best in\'estmentsyou can make in your find they have expandedtheir knowl staff de\'elop through continuing legal legal servicesdelivery team." said Don edgein studyingfor the exam. education. "Lawyers who encourage Akins,president of Hildebrandt, Inc., a This year, NALSi s introducing lhe their staff members to increase their law office consulting firm. By taking Accredited Legal Secretary (ALS)for knowledgeare ultimately the benefac part In meetings and seminars, mem entry-level secretaries. It can be laken tor of their Improvedsk ill." said San bers learn more about the lawand legal by those who have at least one year of dra Yost. "Firms that do not provide procedures.They become more knowl legal experience or have successfully professionaldevelopment in some way edge.ible employees. willing to work completed an accredited secretarial should take another look at their pro harder to make a contribution to the course or the NALSLeg .al Training duct ivity levels. " The effectively firm and the legal profession. They Course. The ALS designation will trained staff member is going lo make develop pride in their careers, which expire five years after the certification your firm happier and more produc instills in them the desire to meet the date unless it is extendedand is gener tive - and increased productivity is higheststandards p055ible . ally seen as a steppingstone to the PLS going to be the key to financial suc Membershipi n such associationpro certification. cess in the 1990s. moles group cohesiveness.It makes the members better team players in the office.They show more loyaltyto their employers.They maintain a high regard forJU$tice and the administrationof the law.They learn life skills through lead ership development. Their increased professionalismenhan~ their employ ers' law practice. They become their employers'greatest assets. ertification The highestranking for the legalsup port staff professional is certification. The CertifiedProfessional Legal Secre tary (PLS) is offered by NALS.To be eli gible, a legal secretary must have worked under the direct supervisionof an attorney or judge for at least three 1•ears.Individuals must passa two-day comprehensivee.,cam made up o( seven paru. Those who pass clearly identify an executive assistantwho: Possessesa mastery or omce skills and peopleskills; • Demonstratesthe ability to Interact on a profossional level wilh attor neys, clients, other support staff, legal assistants, office administra tors. judges, and other court offi cials; • Has a working knowledgeof proce dural lawand the lawlibrary: and Is capable of drafting correspon dence, legal documents and court documents with minimal supervi sion. 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Credits:6 .0 (715)835-8525 THE AUBAMA LAWYER March 1992/ 125 ost Alabamatria l lawyers for orientation purposes,th e origin and in Ex parte Faircloth, 471 So.2d 493, are familiar wilh the prac general application of the rule will be 496 (Ala.1 985), to wit: "The purpose of tice or invoking Lhe"ru le" reviewed. the witnesssequestration ru le is to pre to excludewitnesses from vent any one witness from hearing Lhe Lhecourtroom during trial so they will testimony of other witnesses and per not overhear Lhetestimony. However, haps perceiving the value of his own there appearst o bt confusion.and even testimonyto one partyor the other." In disagreement, as to whdher the rule's other words, the rule promotesthe pre restrictionsmay extend to the conduct The rule of excluding or sequestering sentationof independent.untainted tes of discussingor sharing testimonyout witnesses from the courtroom during timony with the ultimate goal of arriv side the courtroom.A close lookat the trial serves the purpose of preventing ing at the truth. The rule is a common policybehind the rule, the interpreting witnesses from "tailoring· their testi law development with English and caselaw and the wide discretionvested mony to that of earlier witnesses.See Germanicorigins , derivingfrom "(tlhe in the trial court on this matter, will Cedersv. UnitedStates, 425 U.S. 80, 47 judge's power to control the progress reveal that lawyersshould be prepared l,.Ed.2d592, 598, 96 S.Cl. 1330 (1976). and, 1"ithinthe limits of the adversary to account ror such conduct or run the One of the more recent explanationso f system,t he shape of the trial .... " 47 risk of damageto their case. But, first, the rule by our supreme court is found L.Ed.2d al 598. In fact, even to this day, 126/ March1992 THE ALABAMALAWYER there is no Alabamarule of procedure nesses stayed out of the courtroom"); I'.2d 1342, 1355( 5th Cir. 1980) (affirm or statute providingfor the rule in civil Chatman,al 353 (where defensecoun ing the trial court's refusal lo allow practice. sel "knew the witness yet failed in his these witnessesto testify and deeming It has been lhe general rule in Alaba· duly to apprise the court of her pres their conducta "direct and flagrant vio ma that lhe Invocation and enforce ence in the courtroom"); Jeter v. Stale, lationof a previously entered sequestra ment of the rule lies within the sound 376 So.2d 808 (Ala. Cr. App. 1979) tion and separation order").' Further discretionof the trial court. Chatmanu. (where both the defendant and his more, it appears that Rule 9.3 of the Stale, 380 So.2d351, 353 (Ala. Cr. App. counsel were aware that a particular AlabamaRu les of Criminal Procedure 1980):see Camble,McE/roy's Alabama witness was sitting in the courtroom (effective January I, 1991) envisions F:vidence§286.01 (4t h Ed. 1991). While and may have relevant testimony for witness conduct outside the courtroom the tria l court has the authorlly to their case); and Johnsonu. Slate. 62 So. to be within the scope of the rule. In invokethe rule on it.sown motion, it is 450,452 -53 (Ala.App. 1913) (where the addition to providing that the trial commonfor trial counsello request the defendantfailed to identifyto the court court ·may excludewitnesses from the invocationof the rule at the beginning a potenllal witness. who thereby sat courtroom", Rule 9.3 providesfurther of trial. See McElroy's§286.01. Excus through the trial). From these cases. il that the trial court may "direct them ing particular witnessesfr om the appli appears that a duty is imposedon the not to communic;itewi th each other, or cation of the rule is also left within the parties and their counsel lo see that with anyoneother than the attorneys in discretion of the trial judge. Camp u. their witnessesabide by the rule and, to the case, concerning any testimony GeneralMotors Corp.,454 So.2d 958. the extent their negligence contn'bules until all witnesseshave been releaRdby 959 (Ala. 1984). l'or instance. in addi to a rule violation.they may be penal the court.• This latter prohibition is not tion to the right of a party to be present ized by an exclusion of their witness' limited to the courtroom and, in fact, at his own trial, a party's expert witness testimony. logically comes Into playwhere witness may be excusedfrom the applicalionof The least harsh of the enforcement es can talk together freely,i.e .. outside the rule in somecases. Id. at 959-960.' mechanismsis to open cross-examina the courtroom. The exceptionfor com Whilethe enforcementof the rule by tion on the subject . The appellate municationswith attorneysis apparent the trial judge lies within his discretlon, courts have affirmed the allowanceof ly for ·one-on-one" discussionsbetween several means of enforcement have cross-examination concerning a wil· lawyer and witness that do not run been recognizedby the Alabama appel ness' violation of the rule to establish afoul of the prohibition of witnesses late courts overthe years,to wit: punish disobedienceor bias. See Binningham communicating"with each other". the violating witness under the court's Roilwav and Electric Co. 11. Ellard, 33 Despite the federal practice, Alaba contempt powers.exclude the testimo So. 276,280 (Ala. 1903); Youngu. State, ma's Rules of criminal procedure, and ny of the violating witness, or permit 416 So.2d 1109(Ala . Cr. App. 1982). Alabama's case law on the rule, there cross·e. THEALABAMA LAWYER March1992 / 127 McElroy's AlabamaEvidence appropr i ness had been discussing the case with lion lo administer the rule in such a ately interprets Vaughan when it cites other witnesses during the course of manner as to avoid these uncertainties. Vaughan for the proposition that, "lt)he the trial. The Alabama Supreme Court Ln fact, the trial judge may have a duly trial court, in its discretion, may permit held that it was proper for the trial lo explain to the witnessest heir respon a lawyer to talk to a group of witnesses court to allow cross-examination of sibilities under the rule. See Johnsonv. together". McElroy's, §286.01. p. 762. these facts since they may tend to show State, 62 So. 450, 453 (Ala. App. 1913) Implicitly, permission (or clarification the witness· bias and interest in the (referring to the "fallure of the presiding of the rule) should be obtained before case. and. furthermore, ';may have been judge to see to it that (the witness') duty speaking to a group of witnesses. To do to lay a predicate to move to exclude under the rule was brought to her atten otherwise, a lawyer runs the risk of an the witness altogether, and it was com tion"). unfavorable exercise of discretion by petent for the court to allow them Ithe When the rul e is invoke d at the the trial court in applying the rule. questions] for that purpose". 33 So. at beginning of tr ial, the tria l j udge In addition, the Alabama Supreme 280. The court also noted that. ''The should announce on the record and in Court has recently suggested that the answers had a tendency to show, that the presence of all witnesses, counsel rule does not apply to the discussion of after having been put under the rule by and parties the scope of the rule and tes timony outside the courtroom , the court , the witness violated its what effect. if any, it would have on although no definitive holding to that inst ru ct ions not to talk to any one conduct outside of the courtroom. In effect has been issued. In Christiansen abo ut the case." Id. Similarly, the doing so, the trial judge should consid v. Hall, 567 So.2d 1338 (Ala.1 990), the Alabama Court of Criminal Appeals has er whether the gathering of witnesses appellant argued lhal, after the rule had expressed its opinion that the rule outside of the courtroom to discuss the been invoked. it was violated 1\/hen applies to witness conduct outside the case, whether with or without trial opposing counsel conferred with his cour troom. See, e.g., McGilberry v. counse l. would res ult in the same client and a group of potential witness Stale, 516 So.2d 907. 912 {Ala. Cr. App. tainting of testimony that their exclu es durin g a trial recess. While com 1987) (where there was evidence that sion from the courtroom was designed menting that this argument "is a trib witnesses had been discussing the case to prevent. Moreover, the trial lawyer ute to the creativity of our state's Bar," in the court room hallways after the would be.w ise to request these clarifi the supreme court's actual analysis of rule had been invoked . the court cations or otherwise risk the penalty of the argument gave credence to the referred to such conduct as •a definite misconduct. appellant's contention that the rule was appearance of impropriety"). In fact, violated. Id. at 1340. The court's analy there are many appe llate opinions Endnot es sis considered that the trial judge has addressing the argument that commu discret ion in administer ing the rule. nications among trial witnesses outside 1 In the rederalprac:tice, these exceptions art tha t the tes timony of the witnesses the courtroo m violate the ru le, but spelledout in FederalRule of bvidence615. who allegedly violated the rule was they do not dismiss the argument for 2 ~toreo\1er, in recognitionof the criminally largely cumulative, and that their con lack of a rule violation. Rather, they accused'scoiutitulion:d righl to presentwil · duct was exposed by cross-examination. merely uphold the trial court's exercise nesse5on hi$behaJl, it ha.sbeen held th.ll the After this analysis, the court expressly of discretion in enforcing the rule. See accu.sed11Uty not be deprivedof nw itness' tt.sti• held: ;'Based on the foregoing, we hold 222 So.2d 175, 178 mony even though that witnessha$ vi ohitc:d Gautney v. State. the Rule, unless the accusedor the a.cc,used's that the trial court did not abuse its (Ala. 1969) (noting with approval that c.ounsclwas at faultfor tht violation.See Fait· discretion in allowing the testimony of the invocation of the rule by the trial cloth.supra. the particular defensew itness at issue." court included explicit instruct ions 567 So.2d at 1341.Nevertheless, imme that witnesses ushould not talk among 3 ln fedetal practict,the Rule has been promul• diately following the holding. the court themselves about the case").' gatedby Congress a.sFcdcT.l l Rult of Evidenu 615. to wit "Al the requestof a party the court delivered this dictum: "ln deed, 'the shall order witnessest.xcluded so Ll~:ttlh ty rul e' was not violate d in the first cannothear the testimonyof other witnes$6, instance." Id. No authority is cited for and it mayma ke the ordero rits own motion." this dictum. No stated rationale fol F.R.E. 615. The onl}' significant distinction betweenth is Rule and the Alabamacommon lows. The apparent rati onale is the For more effective administration of 13,...,rule: is lhal the ftdetal courtmus l Invoke courl's earlier observation in its opin trials in our Alabamacou rts, the scope the Rule when reque.,;tedby a party, whereaJ ion that the witnesses were not "in the of the rule needs to be clarifiedso that its invocationIs discrt:t ioRacyin Alnbam.'.1pr3c , courtroom during any testimony", i.e., trial counsel. U1eir clients and their wit tice. the rule does not extend beyond the nesses can conduct themselves accord 4 AccordStinson u. Slate. 341 So.2d 185. 186 courtroom. Such a rationale runs con ingly and without penalty. The current (Al•. Cr. ,\pp. 1977):Paga V. Slate. 327 So. 2d trary to Alabama precedent. effort to promulgate the Alabama Rules 76-0.762 (Ala. Cr. App. 1976); Otingeru. Stole, In Birmingham Railway and Electric of Evidence could address these matters, 299 So. 2d 333. 337 (Ala Cr. App. 1974);lewis Co. v. Ellard. 33 So. 276 (Ala. 1903), or. if the opportunity arises, the Alaba V. State. 208 So. 2d 228, 231-231 (Ala. App. 1968);Howton v. Slota. 178 So. 2d 566. 567- the trial court had invoked the rule ma Supreme Court could expound on 568 (Ala. App. 1965): BetldowV. State, 96 So. and, upon cross-examination of the the rule. In the meantime, each trial 2d 175, In (Ala.App . 1956);&dJiil V. Slate, 56 witness. it was revealed that the wit- judge already hast he power and dlscre- So. 2d 677.679 (Ala.App . 1952). 128 / March 1992 THE ALABAMA LAWYER - - - ..- - -- - ALAB.. ·. . ·:_S;TA:fE . BAR . " . -, -- -- . -- - . . '. . . VOLUN:TE:E:R, :IA ... .:.1 RS ' . ' - . ,.. . . ' '°. · ' ·. ·pRou.,, •... ·-:·., ···.. . · I r ' I ,·' ' · ~.; , , •. ' • • _:. ·',.. ,; ·.~'., ' ACCESSTO JUSTICE - Establishinga Pro Bono Project By MELINDAM. WATERS ~ ecently. an article in a than $13,359 a year to be living in I ~ Montgomery newspaper poverty.) Sadly, it is anticipated by j: 1 • focused upon the con- forecastersthat 1991~rty figures cerm of a young will be evenworse. womanwho was b;)hindin her rent, In 1989,the AlabamaState Bar who sometime$ plugged an Board of Commissioners . in extension cord into a neigh conjunction with the Alabama bor's electrical outlet to tum Law Foundation and Legal on lights in her small apart- Services Corporation of ment, and whose re· Alabama,commissioned a frigerator. on severalocca- survey to assess legal sions, had held only ice. needs of Alabama's poor. This 30-year-old mother of The survey revealed that, two young children is one by conservativeestimates, of 33.6 million Ameri over 780,000 persons in cans-13.5 percent or the our state lived, at that population -livi ng in lime. below the federally poverty, according to established poverlythres h- statist ics released by the old. i\s pOverty numbers in United States Census As poverty numbers increased creased significantly Bureau in the fall of 199L nationwide between 1989 Her children are numbered significantly nationwide between and 1990, it is likely that among the one-fifth of all 1989 and 1990, it is likely that the lhe number or poor Ala our nation's children now bamians dramatica lly classified as poor. number of poor Alabamians increas.ldas well. These recently released The legal needs in civil figures, based on Inter dramatically increased as well. mailers of these indigent views with about 60,000 Alabamiansare numnous households,reveal that the and include, among oth number or poor 1\mericans grew by 2.1 millionbetween 1 989 ers, housing mailers. consumer debt problems, domestic and 1990, lhe first such increase since 1983. (The Census Issues, income maintenance problems, and health-related Bureau considers a fami ly of four with total income of less concerns. Federally funded legal services programs in our THEALABAMA LAWYER March1992 1 129 ;\LABA.l\1ASTATE .BAI? \ 70 .LUNTEER-I.AWYERS.'.P.ROGRM11Ji - -- -~- - - -- •.-- ..._- -- ___;:~·-s: ~- ~ -"- - -.::: .. ~ ...... ;::_;,.._~ state do much to help. but budget cuts and understaffing giving financial support to organizations that provide legal have left these programs unable to provide all the assistance servicesto the poor. needed. A greater effort on the part of the private bar to help In keepingwith the spirit of Rule 6.1, the board of bar com in the deliveryof these much-needed pro bono legal services missioners unanimously passed a resolution. the full text of is now underwayin Alabama. which is reprinted below, in June 1991, encouraging each To encourage and assist local bar associations with estab· regular member of the Alabama Slate Bar lo voluntarily lishing organized pro bono projects and to determine with accepL no less than two civil case referrals, or 20 hours or some degree of accuracy lhe present levelo r pro bono activity qualifying lega.lwork, from an organized pro bono project. in Alabama, the board of bar commissionerscreated the Vol Special members are encouraged lo volunteer no less than 20 unteer LawyersProgram. This project, which is monitored by hours to a pro bono effort. Under the resolution, qualifying lhe Committee on Access to Legal Services of the Alabama pro bono work includes not only direct representation of Stale Bar. has now been organizedand providesa structured, indigent clients, but also serving on the governing or manag efficient mechanism through which attorneys may direcUy ing board of an organization assisting the poor, recruiting volunteer their services to meet the civil legal needs of our attorneys for a pro bono proJtct, instructing at a poverty law low income ciliiens. seminar, mentoring or serving as co-counsel to other volun· Of course, it has long been the case that many attorneys, teer lawyers, performing intake at a legal services office, or especiallythose in rural areas and smaller cities, give gener assisting with a legal clinic for the poor. ously of their time and expertise to fellowcitizens. Further, Information about participating in or organizing a pro Rule 6.I of the AfobamaRules of ProfessionalConduct, enti bono project for your community, bar association, law firm, tled "Pro Bono Publico Service", directs attorneys to volun or corporate legal department can be obtained by contacting tarily render public interest legal service ranging from pro me al P.O. Box 671, Montgomery36101 or by calling me at viding professionalservices at no fee. or at a reduced fee, to (205)269-1515. APPEIJI,ATE WE SAVE YOUR ~ - TlME ... Court Decisions ~ !!,, amell Now legal n:se,m:h assismnce On Compa ct Disk (CD) ,s uva,lablcwhen you need it. TheAJabomaAppelloteCounDecislonsOo CD disk will L E G A L wuhout 1hcnecess11y or revolutionize the wayyou practice law.No longerwill h adding a full-1imeassociaie or Research be necessary10 go to lhe library 10 find a decision you clerk . need. You can uselhecompu1eronyourdesk 10find 1he informnlion you need. Easy• To-Use Feaiures Include: Wi1h access LO the Staie uiw L.ibmryand Wc.stlaw. we Browse Decisions, Find a Decision,Search for Word or provide fas1and efficielllservice. For deadlinework . we Phrase and many others. can deliver infonnatlonto you v,a commoncarrier. Also Available: Federal Expre~s.or FAX. Alabam a Code On Comp uter Disk Farnell Legal Research examines the issues thoroughly throughqua1i1y rese:trch. bnef wri1ingand analysis. AlaCode, The Alabama Code On Compu1cr Disk will install on your hard drive and provide you whb the full Our rn1esare S35.00 per hour, with a 1brcchour lcxt of the statutes. Features Include: Browse T11k and minimum. s«twn, Find a Tllk, Subject Malta Index and Wordo r PhraseSearch .. For Research Assistance contact: Sarah Kathryn Farnell Legal Systems, Inc. 112 Moore Building Montgomery, AL 36104 1-800-844-2483 Call (205) 277-7937 130 I March 1992 THE ALABAMAl.AWYER DISCIPLINARYREPORT Rei.nstatement ney's fee and $2,500 for his fee in the One complaint involved collecting • Former Tuskegee lawyer Calvin D. concluded criminal case. He credited $1,327.23for a client and not forward Biggers was reinstated to the practice the $100 originallypaid and the money ing the collected funds to his client. of law by order of the Supreme Court of he was paid by the U.S.T he client con• Oster has since made restitution to this Alabama, effective December 9. 1991. lended he did not consent to this and clienL (Pel l/90-05) did not owe more since Stokes had Another complaintinYOl,-ed accepting already been paid by the U.S. for the a $350 retainer to represent a client in a Disbarmen t criminal representat ion. Stokes' con• contract dispute. Oster departed the • On December 9, 1991 the Supreme duct was found in violation of DR 9- stale prior to completinghis representa Court of Alabamaissued an order dis 102(A)(2); 18 U.S.C. §3006A(0 prohibits tion of the client. Osier's former law barring Birmingham lawyer Wlllhlm appointed counsel in criminal cases partner, al a later time, obtaineda judg Ln Carro ll from the practice of law from any other source without prior ment for the client. effectivethat date. The disbarment was approvalof lhe District Court. IAS8 No. Another complaint Involvedaccept based upon three felony convictionsof 90.2331 ing a $450 fee to obtain an uncontested the respondent attorney, which are vio divorce. Oster prepared the necessary lations of Rule 22(a)(2), AlabamaRules • Former Birmingham lawyer J amu papers but never filedlhem. of Disciplinary Procedure (Interim) . Stephen Oater was suspendedfrom the The final complaint involved collect [Rule22(a)(2) Pel #91·04) practice of law for six months and ing a sum or S713 for a client and not ordered to make restitution to a client fol'\\,ardingthe collected amount to his Suspensions and to the Client Security Fund of the client. The client fileda claim for $713 • On December 11, 1991 the Disci Alabama State Bar. This susp uestlon : while prosecutors technicallyrepresent desired by a client. The channeling or "Is the district attorney the Stnte of Alabama (not victims), advocacy toward a just result as and/or assistant district practic.,lly speaking, the best way lo opposed lo vindication of a particular allorney disqualifiedfrom represent the State or Alabama is by claim lesS-Amt:r1Clll1 address the question of imputed dis cutor's office would be disqualified )un,prudtnce and tnlcmatJonal 1.-w 1n qualifica tion or screening, they, in from prosecuting a city commissioner one ol the 'll'Oftd'smos( trupn:MM effect, approved these principles when for using equipment and personnel of aaoclcmlcsetu.,p D011'NL'(G COLLEtJB •t C> MDRtDOg they remanded the case to determine if the city in his private businesswhile. al tr.nVERSrrT a conmct actually existed. The court the same time, prosecuting several .....,._.,_ ,----·-Qu11b,1dgc Studlca "'-"' determined that a conflict did not exist worthless check offenses where the TiwUnh..Uyd ~~tppl i 879 because the attorney did not bring any commiss ioner was the victim. The UnlYffllr o "°"lt)', MS 38677..()879 record or me pertaining to the defen worthless checks had been tendered to i'drphone: 601-232-72.82 dant with him to the district nttorney's the commissioner's business and could VAXJ 00 1·232-5 138 office nor did he consult or discuss the have become an cvidentiary topic at the Tl IE ALABAMALAWYER March 1992I 133 RECENT DECISIONS By DAVIDB. BYRNE,JR. and WILBURG. SILBERMAN pons or sentence enhancement in Justice ~faddox's opinions in McColl SUPREME COURT OF Alabama. and Pel/way focus on lhe following ALABAMA I The court or criminal appeals, in an questions: unpublished memorandum opinion. (a) When Is a trial court obliga1edto Improper sentence held that Madden's claim wasnot prop give an instruction on a lesser included enhancement may be ra ised erly before the court becnuse Madden offenseor an affirmativedefense ? on direct appeal should have attacked the validityof the (bl Is defensecounsel obligated under Madden u. Stale, 25 ABR 6063 prior conviction by petitioning for post· Rule 21.2 to file a written jury inslruc· (August 23. 1991). Madden pleaded convictionrelief in Georgia. lion in order to pl'eserveinstructional The court or criminal appeals relied guilty to and \\'ilS convictedof one count error in a criminal case? of burglary. one count of rape and two upon its decision in Joh11Sonu. Stale, (c) Is it appropriate for the appellate counts of sodomy, all in the first degm . 541 So.2d 1112, 1115 (Ala.Crim.App. court to sue the charge conferencecol At the sentencing hearing, the State pre 1989) , In holding that it could not loquy to determine if the instructional sented evidence of three prior felony review on direct appeal the validity or error had been preserved for appellate convictions in Georgia.Madden was sen the prior felon)' convictions used for review? tenced under the Habitual Felony purposesof enhancemenLThe Supreme Rule 21.2. AlabamaRules of Criminal Court of Alabama reversed based upon OffenderAct lo life imprisonmentw ith Procedure,states that: its decision in Ex po rte locket/, 548 out parole. No party may assign as error the Maddenappealed his sentence to the So.2d 1045 (Ala. 1989). In the opinion authored by Justice Kennedy. the court's • . . givingor an erroneous. court of criminal appeals and argued misleading. Incomplete or other that he had been improperlysentenced supreme court distinguished Johnson with the followingobservation: wise improper oral charge, unless under the Habitual FelonyOffender Act. he objects thereto before the Jury Specifically. he argued that the trial Madden does not argue that his retires to considerits \>erdict.slllt · court had erroneously enhanced his prior felonyconvictions in Georgia ing the matter to which he objects sentence for having three prior felony are invalid,but that, for purposes and the grounds of his objection. convictions, where two of the convic of enhancement under the Habitu tions arose out of the same transaction. al Felony Offender Act. the two In both McCalland Pellway,the State Madden argued that those two prior prior sodomy convictions should argued that the Instructional error had convictions should have been consid be considered as one felony con not been preserved for appellate review. ered as one felony conviction for pur· viction under Alabamalaw. Thus, The supreme court, speaking through we hold. based on Ex parle lock· Justice Maddox,reversed both cast.\. In order to detem,inewhether the evi, Dmvld B. ell, that the court of criminal Byme , Jr . appeals is not precluded from re dcnce is sufficient to necessitate an instructionand to allow thej ury lo con Davide Byrne JI " " viewingon direct appeal the QUes· grldualocl;l,tU,,,..., . sider the defense or a lesser Included "'YclA!amma-. lion whether the two prior sodomy convictions, which arose from a offense.the court must view the testimo ny ""-"""""UIdb QIaduale arid 11w single transaction, should be con most favorable lo the defendant. deg,ees He• 1 tnom· sidered as one felony conviction Shaversu . Sia/a, 361 So. 2d 1106, 1107 be, .. 1t>eMonl g""*Y (Ala. 1978). If there is the slightest evi firm of Robrson& 81.ISti t for purposes of enhancement or Al"ldCOWJ .....S:ll'le -. Ol'V'nlnll Madden's sentence under the dence tending to provea hostileact which _ HabitualFelony Offender Ad. could reasonablybe intel])retedas placing Pett\\-ayat the time of the shooting in Wilbur Q , How to preserve Instructional apparentimminent danger to lifeor other Silberman enor grievousbodily harm, then the matter of Wtoo, G SilbO,ma,i, of McCallu. Slate, 26 ABR 110 (October !he Blnnlngt\llm l'lfmo f self-defensebecomes a question for the Go,don, SIi-• . 11, 1991)and Pettwayv. Slate. 26 ABR jury. W>ggfl$ & ChdCII 119 (October 11, 1991). The Supreme Likewise.the law in Alabaim is clear .-s.,,,to,a ""'-_ ... Court o( Alabamareleased its decisions that if a ddendant asksfor a jury charge unr..r.ltyof in McCall and Pettway on October 11, on a lesserincluded offense. he is entitled lnd earned hit l~w 1991. Eachof these casesprovides a clear to such a charge if there is any rational deQreef rom ltlo Uno insight on how counsel musl preserve ve,111y's SchoolCll lll w basisor reasonable theorythat would sup instructionalerror for reviewon appeal. port a conviction on U1e lesser offense. 134I March1992 THEALABAMA LAW YER In McCall.supra. the supreme court the arrest and/or conviction or more Alabamav. White,Justice Kennedycri t reaffirmed its earlier decisions in than 20 persons. icallynoted: Matkins v. State, 497 So.2d 201 (Ala. The officerproceeded lo South Mobile In this case,Officer Grims testified 1986)and Connolly v. Stale. 500 So.2d Avenue where he observed Carpenter that he receiveda telephone call 68 (Ala. 1986). In those cases. the leaving a residential driveway in his from a 'reliable' Informant and supremeco urt held that an oral request automobile.He followedCarpen ter for a that he was told that Carpenter for a jury instruction was sufficient to brief periodand then stoppedhim . After was driving on South Mobile preser\>eerror in a criminalcase . askingCarpenter for his driver's license, Street in his car and that he would In these cases, the supreme court the policeofficer directed Cal'l)Cflter and have a gun and drugs in the car. observedthe following: his pa~nger to get out of the car and We hold, based on the torality of stand behind it. Al that lime, the officer the circumstances, that the facts The better practice, or course, observed a pistol protruding from a zip of this case did not create a rea· would have been for trial counsel pered carrying case. After discovering sonable suspicion to justify slop· to have presentedthe court with a the pistol, the policeofficer searche d the ping Carpenteron the street. It is written instruction.but the record car. He discovered what he believed clear that Officer Griffis relied suggeststhat trialcounsel gave to were controlledsubstances, i.e., one ,al solely on the fact that the infor the trial court copies or the lum pill and one mtthamphetamine. mant in this case was known to statutesupon whichhe wantedthe The trial court granted the motion to him lo be reliable. Absent evi jury instructed.Although this pro suppress. dence that the infor mant had cedure is not a substitute for the The Alabama Court of Crimina l given the police reliableinfor ma· 1>resentation of a written instruc Ap11ealsreversed the lrinl court's order lion in the past.there are no spe tion, we suggest thnt the trial suppressingthe evidence.The supreme cific or particularized facts on judge could have insistedon coun court issued the writ of certiorari to which Griffis could have based a sel's presentinghim with a written dtterrnine whether the record support- reasonablesuspicion. The infor instruction that detailed exacU)• cd the court of criminalappeals' rever mant said merely that Carpenter what he desired,so that the record sa I of the trial court's order and to wouldbe drivingup South Mobile would be complete .... To hold examine the informant's tip in light of Street. He did not state on what that counsel had to requesta writ· Lhe SupremeCourt or lhe UnitedStates' he based his knowledge of that ten instruction in order to pre· recentdecis ion inAla/Joma v. White. fact. Unlikethe facts In Alabama serve his right to have the jury In a five-to-fourdecision authored by v. White and those in Dale. this instr ucted on an affirmative Justice Kennedy. the Supreme Court information concerned Carpen defensewould be to elevate form reversed. applying the · totality of the ter's present whereabouts, infor oversubstance. circumstances test" to determine if mation available to anyone who Fourth Amendment - there was reasonablesuspicion to justify knew him and was near that loca Informant's tip and Terry stop a Terrysto p or Carpenter. tion. In Alabama11. White and in Sta te v. Carpen/er, 25 ABR6252 Under Adams v. WIii/oms, 407 U.S. Dalev. State, heavye mphasis was (August 30, 1991). Carpenter was 143, 147, 92 S.CL 1921, 32 L.Ed.2d612 placed on the fact that the infor- indictedfor the offenseof possessionof ( 1972),an informant's tip may carry suf. a controlled substance. Prior to trial, ficient"indicia or reliability" LOjustify a Capital Carpenter filed a motion lo suppress Tl!TT!/SlOp e-.-en though it may be insuffi Pre·Trial UUgatlonResource cient to supportan arrest or searchwar evidence confiscatedal the Limeor his MITIGATION PROGRAM arrest; he argued that the evidence had rant. See also Walkeru. City of Mobile, Founded In 1987 been illegally seized by the arresting 508 So.2d 1209, 121 I (Ala.Crim. App. policeoffic er. 1987).All that is requiredfor such a stop OffeTing to • ppolntcd coun se.l: At the hearing on the motion to sup is that there be a reasonablesuspicion • general con sill tat ·ion pre$S,a Fairhope, Alabamapolice officer that the person to be stoppedis engaged •.11.khearing assistana testifiedthat he had rec.eiveda telephone in somet) REAL ESTATE IS YOUR SECRETARY CERTIFIED? ATTORNEYS Y ou1ve. made a large investment to s1aITyou r officeswilh LASER SOFfW ARE good, qualified people. Did you know thal lhere is a c:erlifica· lion examinationfor legal secreraries? A complete line of Real Estate Closing Th e Alabama Association of Legal Secrctaries(AALS) offers Programs including lheCertified Professional Legal Secretary E..uminalion ("PI.S") (tJ HUD's, Buyer & Seller Statements, forJega l secretarieswhic h providesa standardmeasurement of Disbursement Register, Checkwriting professionalism, knowledgean d skill. @ Deeds, Mortgages, Notes, & Affida,its T he knowledge gained in preparing for the examination @ Tille Policies, Commitments and improves on ,1hc-job skills so duties can be performed more Endorsements cfricienlly with less effort. @ FNMA and More Le, AALSgive your employees a strong foundatio n for the One time data entry, all calculations success of your firro. AALS will be offering a PLS Cram performed, high quality printing of Workshop on February JS, 1992 in Binningham, Alabama for complete document, with data, generated thosea wh o re interestedin t3kingthis examination as weU3s on plain paper. (or thosewho are interestedin improvingthe ir skills as a legal CALL FREE 800-673-7621 professional. F or information contact: Rhoncb Hatley, Certified PLS, Durward & Arn old, 1150 Financial Center, SOS North 20 Slllel, Binningham, AL 35203, telephone (205) 324-6654. ALABAMAASSOCIATIONOFLEGALSECRETARIES I Display Symms, Inc., 180 N.W. 3rd Ave, Okeechobee , FL 34972 Affiliatedwith ; NadonalAssodaiion or Lc&;alSectctaries 136 / March 1992 THE ALo\BAMALAWYER controlled substance,to-wit: cocaine, in pelenl witness. apply only to a case of the AlabamaRules or Criminal Proce violationof HlA-12-211 or the Codeof sexual abuse or exploitation or a child dure. which deals with ·evidence and Alabama." and not to a case of physicalabuse of a witnesses" in criminal cases, could be The court's opinion in Harpermakes child. amended lo provide that a child victim clear that most objections to criminal In its opinion, the court or criminal would be competent to testify in cases charges must be raised beforetrial. The appeals suggested lhaL lhe legislature or physical abuse as well as those exceptions are for objections based should undertake the amendment of involving charges of sexual abuse or upon the lack of subject matter juris the statute to provideuniformity on the CXJ>loitalion. diction and failure to charge an offense. ground that there is no logical reason Those two objections can be raised by why a childvictim should not bea com Batso n a ppli es to lhe court or by motion or the delendant petent witness in a physicalabuse case non-minoritie &-lssue of ~l any time during the "pendencyof lhe just as in a case involvingsex ual abuse sta ndi ng proceeding"." Pendency or the proceed or exploitation. Mathisv. Slate, 26 ABtl399 (Novem ing obviously refers only to the pro Justice Maddox.in a special concur ber 15. I991). The Alabama Supreme ceedings in the trial court and this rence. goes further and suggests that Court granted certiorari lo address the interpretation of lhe Rule is consistent the Supreme Court of Alabamacould, ,ssue of whether Mathis. a while male with federalcases interpreting a similar without waiting for legislative action, defendant,has standing under the prin rule of criminal procedure."See United adopt a rule of criminal procedureand ciples of Batson u. Ktmlucky, 476 U.S. States v. Pupo, 841 F.2d 1235(4th Cir. effectthe change. Morespecifically. Jus 79 (1986), to claim Lhal prosecutor's 1988). tice Maddoxsuggested that Rule 19.2 of allegeduse of peremptory challengesto It Is important to nole that although the supreme court upheld lhe indict ment in Harper,it expresslypoints out the following: The court of appeals correctly held in Stewart that if a statute requires that the offense be 'knowingly'committed, then the indictment should allege that it was so committed, and if an objection lo the Indictment is raised by the trial court or the derendantduring the pendencyor the proceeding,the indictment is dercctive and would be subject to dismissal, unless otherwise pro videdfor in Rule 13.5(c)(2). Ultimately, the supreme court in Harper held that "based on the forego ing. we are clear to the conclusion that lhe defendant's constitutional right 'lo demand lhe nature and cause or the accusation' (Arl. I, §6, Const. of Ala. - .,_ ...... _. _ liUil 190I) has been fulfilled in lhis case. The be deft- - cllalle THEALABAMA LAWVER March 1992/ 137 remove black jurors irom the tria l The court in Griffithstated, "We there The Ninth Circuit Court of Appealshad venire violatedhis constitutional righL b)' hold that a new rule for the conduct decided that the ordinary course of The court of cr iminal appeals was of criminal prosecutions is to be applied business exception to avoidanceof pref prophet ic ear lier in stating that the retroactively to all cases, state or feder erential transfers could not be used by Batson principle might be broadened al. pending on direct review or not yet long-term creditors. The Sixth Circuit because U1eSupreme Court of the Unit final . .. ." Id. at 328. had held to the contrary in 1990. In the ed States , in Powers v. Ohio, concluding substantive paragraph. the _ u.s._ . n 1 s.ct.1364 (1991), Supreme Court stated that payments on did, in fact, broaden the class of defen I long-term debt, as well as payments on dants who could make a Batson claim BANKRUPTCY short-term debt, qualified for the ordi when it held that a white defendant did nary course of businessexception to the havestanding to raise a Batson issue. trustee's power to avoid preferent ial In Ex porte Bird , __ So.2d __ Supreme Court rules on transfers. However, the Court further (Ala. 1991), the Supreme Court of ordinary course of business stated that it would not decide whether Alabama adopted Powers, thereby exception on regular interest the particular transaction was incurred deciding that a white defendant has payments to long-term lender in the ordinary course of the debtor's standing to raise a Batsonchallenge . Union Bonk v. Nerl>ert Wolos, busi ness and the bank's business, In Mathis, the supreme court affir trustee, U.S.Supreme Court (December whether payments were made in ordi mativelyheld that the trial attorney had 11, 1991). In an opinion delivered by nary course of business. or whether preserved the standing issue, thereb)' Justice Stevens, the United States made according to ordinary business entitling him to the extension of Batson Supreme Court held that regular inter terms - these questions are still open brought about by Powersv. Ohio. est paymentson an eight-month revolv for the lower courL Thus, the Supreme In so holding, the Supreme Court of ing line of credit constituted an excep Court's holding is that even though Ule Alabama relied upon the decision in tion to the power given under §547 long-term interest payments may con Griffith v. l(entucky, 479 U.S. 314 preference statute of the Bankruptcy stitute an exception, it is still a factual (1987) holding that the effectof Powers Code. This case, in the lower courts. question to be determ ined by the v. Ohio should be applied retroactive!)'. was known as ZZZZBest Company,Inc. courts. Definition of business trusts In re ParadeReally, Inc. (Bankr. D. Hawaii) November 7, 1991 22 B.C.D. 402; __ B.R. __ . This was a case involving a retirement pension trust. The Court held that Ulere is nothing in LANDTECH86 the Code defining or explaining the term "business trust" nor is there any Real Estate Settlement System legislativehistory to act as a guide. The ForLaser or Matrix Printers bankruptcy judge determined that to qualify as a business trust, the entity not only must be doing business but • HUD l Au tomatic Calculations have some significant attributes of a • Checks & Escrow Accoun ting corporation. The Court stated that it • Word Processor - Spell Check must have been forn1ed primarily for a business purpose. and that lo have the & Policies Commitments attributes of a corporation, there should Deeds & Mo rtgages be transferabilityo f interest. • Data Base Repor ting (SQL) • On Site Training Available State bar proceeding is exception to automatic stay; $1,495.00 see Bankruptcy Code §362(b)l4) Geneand Joyzel/e I. Wade,22 B.C.D. 408 __ F.2d __ (9th Cir., November LAND TECH 8, 1991). The Ninth Circuit held that a CORPORATION (407) 833-0454 state bar proceeding was a regulatory action under 362(b)(4) and, therefore, 303 Guaranty Building • 120 South Olive Avenue • West Palm Beach, FL 33401 an exception to the automatic stay. In this case, it was determined that the ArizonaBar, in taking such action. was 138 / March 1992 T~IEALABAMA LAWYER an instrumentllity o( the ArizonaStile the creditors would receivt only a small tion occurs. U a termination occurs Supreme Court. This holding was jusU percentage of the amount of the estate, after the bankruptcy Is filed, it is an fled by reason of a rule promulgated by this was no basis for reducing the fees, administrative claim. However, vaca the ArizonaSupreme Court authorizing for lo do so would discourage active tion p.iy e;,med pre-petitionis governed the bar to provide for regulation and participation or the creditors' commit by §J l 13(1)which providestha t the col discipline of lawyers.In all probability, tees. The judge adm itted that the lective bargaining agreement controls. the same holding would apply in Alaba Eighth Circuit had said that ordinarily Thus, under such section vacation pay rm. compensation of services rendered has first priority, subject however to prior lo approval of employment is the administrative priority of a lender Compensation to attomey for denied. but that the Court as a matter under §364(cJ(J) giving a lender a serv ices rendered prior to of fundamentalfairness may exerciseits super priority iF the collateral is not appointment discretion and allow fees for services sufflcientto pay the lender In full. Malleroflnterco,In c.. 2213.C.D. 411, performedpre-approva l. Additionally,this case held that there November t3. 1991. The bankruptcy is a difference between the union judge held that the attorney for the Severance and va ca ti on pay claims and that of the nonunion creditors' committee, under the special admini strative pri ority claims. as the nonunion worker is not circumstances, would be allowed com In re GoldenDistributors, ltd.. et al. under a collectivebargaining contracl pensat ion for services entered into 22 S.C.D.421 (Bankr.S.D.N.Y.,Novem Thus, vacation pay qualifies as an prior to approval.The Court stated that ber JS. 1991).For anyone with a prob· administrative expense only lo the It determined factually that it was nec lem ordetermining whether severance extent of services rendered post-peti essary for the attorneys to act immedi and vacation pay have administrative tion; for pre-petition services, it is a ately upon the employmentbut prior to priority, lhis is a good case to read. general unsecured claim with only the approval of the Court, for, otherwise, There were both pre-petition and post amount earned in the 90-day pre-peti the committeewhich the attorneys rep petition wage earners. The Court held tion period entitled to a prionly under resented would not be protected. Fur that severancepay is an administrative §507Ca)(3)and subject lo the $2,000 ther, the Court held that e\'en though priority as it is earned when termina- limitation. • NOTICE To Members of the Bar and the Public Concerning Public Hearing Nollce is hereby slvcn 1hat a publichearing will be conduc1ed by Chic( Judge Gerald Bard Tfolla,, U11i1edStates Couri or Appeals (or 1he ElcvenihCircui~ on Tuesday, April 28, 1992 a( 9 a.m. in Coumoom 336 or 1heTuttle Couri or Appeals Bulldln3,56 Forsyth S1reet, NW, Atlan1a, Geotgi,1 1or 1he purp()!C Of receivlng suggestion,. proposals and commenis concerning the application or eniorcement oi Ele... en!h Circuit Rule ~&-l!dXI) and of Section (dH2l ol !he Eleven!h Circuit Plan under the Cnmilldl Justice Aa (CJ}ll. (These provisions beume effective April 1, 1991 afie,-public notice and an opportunity IOcommen1 had bN.'n g,ven In rhe foll of 1990 or winier or 1990-91, as required by 28 U.S.C. §2071 (b).J fleventh Circuh Rule4&· 1 (d)(I) s1a1es: Appellate Obllga1lon, or Rclained Counsel - Rc1ainedco un!CI For,1 ofmlnal defendant h.is Jn obllgallon 10 con!ln<1c10 repre sen1 1h,11defendant untll 1uccessorco unsel either e111ers on appearan,e or Is apPQin1edunder the 0-lminal Jus!lce Act, and may no, abanclonor cease roprcscn1a1ionor a defendant except upon order ol 1hecourt . Secllon (dX2)o( the Circuit's CJAPlan SllltL'S: If3 party was represented in the disrnct court by counsel app()intedund!'f !he Act. such counsel sh.lll be mmdrul or the obllgalroo and m~nsibili1y 10 conMue representation on appeal unlil eUhcr 1uccessor counsel is appoln1ed unde< the Act Of counsel is rell(,\le(!by order or 1his court ... Relamed counsel for a criminal delcndon1 has an obliga1ionto contrnue 10 repre,en1 1ha1deien daot unlil successor cour1 Tl-tEALABAMA LAWYER March 1992/ 139 Thefollowing is a reviewof and commentaryon an officeautomation issue that has cu"en/ importance lo /he legal community, preparedby the office automationconsultant to the stale bar. Paul Bomste,n, who viewsare not necessarilythose of the stale bar. This 24th in our "Consultant'sCome r• series. We would like lo hear from you, both in critiqueof tlie articlewrillen and for suggestionsof topicsfor future articles. (This article originally opfMOrfld in the impracticalnotion. Five dollars would firms. It requires a digital telephone /ofarch 1991issue of The AlobomoLo.u,,,.. .J be outrageousand causeyou more grie( switch,SMDR, a computer-basedbilling than profit.That aside,clients are not as system and a great deal of discipline. Telephone charges acceptingof rate increasesas they once The disciplineinvolve s having to dial In Here comes lhe bill. Upwardso( 30 were. In fact. one is hard-pressedto find cll ent and matter numberas a condition days after you have made a cllent· any client who is not downright resis of accessing the long distance line. chargeablelong distancetelephone call. tant to rate increases. On the other Needlessto say,some lawyersfind that a your bookkeeperdumps a she.if of call band, telephone charges billed as an bit much. detail slips on your desk with the adjunct cost of businessare traditional reminder,"We can't closeout billingfor and generallyacceptable lo clients.After all. they make phone calls (and copies Low-tech it the month until the phone charges are If you are not a large firm. nor inter and mail packages,etc.). allocated."You tum your attention to ested in acquiring a digital telephone the pile of detail slips.beginning a labo switchor a specialcomputer. there is a rious task or matching your time slip High-t ec h It perfectly sound procedure you can notations or long distance calls lo an The key to capturing phone charges adopt. and it does nol cost anything. in(urialing list of dates, area codesand with a minimum or effort is to record Assigna fixed cost to long distancetele exchanges.But there is more - what the entire transaction at the time it phone calls, and automallcallytrigger about the call you made from the air occurs. As you place a call lo a client the toll charge as you (habitually) fill part, using your personal credit card; you ob\'iouslyknow whom )'Ouare call· out your pro(essionaltime. A slllndard the collectcall you acceptedat homeon ing and on what matter. What you do cost 1ssimply an averagethat is e.uily a S.,turdayafternoon; the calls on MCI not know is the long distance charge computed by dividing total long dis (this Is just the AT&Tbill) ? Do not your longdistance carrier is running up tance charges by the number of calls changecareers; there are allematlves. for you. Conversely.the telephonecom made. If you are a typical firm, your pany knows lhe charges but not the average cost will be in the S 1.50 lo Ignore It client's name or matter number. Enter $2.50 range and will nol be an unfair This can be tempting. Afterall, why high tech. burden for a client involvedwith a brief waste an hour (or more) of a lawyer's Some telephoneswitches have a fea conversation.If you do not habitually time chasingsmall change? The reason ture calledSMDR (station messagedi$ charge for time spent on phone calls, tribulion reparting).The feature accu· is the same reason }'OU ought Lo ~ there is a quick calculationthat should copier and pastage charges: they can mulatesa recordof who (whicl,station) instantly disabuseyou o( that practice. add up lo a significantbottom-line pro( placed a long distance call, and how How much fee income 1s lost from il contribution.Our studies reveal that many minutes the call lasted.Thi$ list · ignoring15 minutes per day{at $80 per law Orms incur more than $150 per ing beginsto get togetherthe twopieces hour)? Would you believe SS.000 per lnwyerper month in phone costs that of the equation.With a bil of creativity, ye.,r? should be recoverable Cromclien ts. one can enter clicnl/matler number The single professional lime charge Ignoring does save the lawyer's time, through a phone instrument prior to you (now)habitua lly generatepursuant but it allowsmore than twice the cost dialing the number. The SMDRrecord to a client phone conversationbecomes lo slip awayas missedprofit oppartuni· produces a monthly list for manual l\\'Otransactions, one for your Limeand ty. entry into the billingsystem. one for a standardlong distancecharge. Taking the process a step further, ILdoes becomenecessary t o distinguish some vendors of legal-specificbilling between these dual transactions and Fold It Into our rates programsoffer (for a price)some inter thosewhere the clientcalls }'OU , or from This is done with some overheadCac · face softwarethat dynamicallycaptures loc;ilcalls. Considera trigger such as tors, such as the cost of word process SMDRinformation and automatically "STDI.OTC" on yourtime slip.You have ing. On that basis, you shouldraise your updatesa client's billing record.Th is is lockedin billable long distancecharge.~ rates about SI per hour, clearly an a technique only for medium and large lo yourprofessional timekeeping. • 140 I March1992 THEALABAMA I..AWYER Request for ConsultingServices Office AutomationConsulting Program SCHEDULE OF FEES, TERMS ANO CONDITIONS Firm Size• Ountion .. Fee Avg.Cost/lawyer I I day $ 500.00 SS00.00 2-3 2 days $1,000.00 $400.00 4-5 3days SI ,500.00 $333.00 6-7 4 days $2,000.00 $.107.00 8-10 5 days $2,500.00 $277.00 ITS PRACTICE Practice Areas (%) Lltig;ition Maritime Col'l)Orate Real Estate Collections Estate Planning Labor Banking Number of clients handled annually Number of matters presently open______Number of matters handled annually How often do you bill? EQUIPMENT Word proc=ingequ ipment {if any) ------Data pr=ingequ ipment (if any) ______Dictation equipment (if any)______Copy equipment (if any) ______ Telephone equipment ------ PROGRAM 'I(, of emphasis desired Admin. Audit WPNeeds Anal ysis OP NeedsAnal ysis,_ _ _ Preferred time (I) W/E ------(2) WIE ------Mail this request for service lo the Alabama State 13arfor scheduling. Send to the attention of Margaret Boone, executiveass istant, AlabamnState Bar, P.O. Box671 , Montgomery, Alabama 36101. THEAIABAMA LAWYER March 1992/ 141 MAJORLEGISLATION OF INTERESTTO LAWYERS 102nd CONGRESS-First Session (Jan. 3, 1991 - Nov.27, 1991) Republishedby permissionof the American Bar Association (Vol. 28, No. I A Legislative Anal)'Sis Servite Januo,y J , 1992 of the Co""mmenbl AffairsOffice ) AdministrativeLaw ...... 142 FamilyLaw ...... 150 Antitrust Law...... 143 International Law...... 150 Attorneys...... 143 LegalEduca tion ...... 152 CivilRights/Constitutional Law ...... 144 Legal Services...... 153 Courts/Judiciary...... 145 MilitaryLaw ...... 153 Criminal Justice ...... 146 Patent, Trademark& Copyright Law...... 153 Elder Law...... 149 RealProperty , Probate& Trust Law...... 154 ElectionLaw ...... 149 Tax Law...... 154 Tort and Insurance La"'...... 155 - ABAtestified o r submitted sJ;itementor letter to Congress t 1991ABA legislative pr iority Note:The term "enacted" generally refers to the date the presidentsigned lhe bill into law • Includes- legislativeissues on which the A13AHouse o f Delegatesor Boardo f Governorshas approvedassociation policy Subject Description and Status ABA Position ADMINISTRATIVELAW •Administrative P.L.102-141(H.R. 2622) , fiscalyea r 1992 appropriations Supportsadequate Conferenc .e of the legislationenacted 10/28/91, includes$2.227 million for ACUSfunding and the U.S. (ACUS) ACUS.S. 1642and H.R.3379 would authorize ACUS to pendinglegislalian . provideassisJ;ince in response to requests relating to the improvementof administrativeprocedures in foreign countries.A Senate Judiciarysubcommittee held a hearing on S. 1642.The Housepassed H.R. 3379. Administrative Law S. 826 and H.R.3910 wouldestabl ish a centralizedcorps of Supports. Judg es Corps federalALls. There was no action on the measures. •Government Ethlca Section 2635.806of the proposed" Srandards for Ethical Opposesrule as Rules Conductfor Employeesof the ExecutiveBranch " would proposed. severelyrestrict federalemployees from participatingin the internal or businessaffairs of professional membershipas sociations. A House Post Officeand Civil Servicesubcom mittee held a hearingon the proposedrule , and the rule is beingredrafted by the Officeo f GovernmentEthics. Batch Act S. 914 and H.R.20 would amend the Hatch Act to allow OpposesHatch Ac/ federalemployees to participatei n certain political activities changesi11 the absence as privatecitizens. There was no action on the measures. of full and careful study of the potential impact. 142 / March1992 THE ALABAMALAWYER Subj ect Desc ript ion and Statu s ASA Po sition ~lmmllfratioo - S. 1734and H.R.3366 would repealemploye r sanctions Supportsr epeal. Employer Sancti ons provisionsIn lhe ImmigrationR eform and Control Acl of 1986i n light of GeneralA ccountingOffice findings that the sanctions result in discrimination.There was no action on the measures. •Immigration · S. 2026.S. 2091and H.R.3644 would assure the protection Supportsappropriate Haitian Refugee.a of Haitiansin the UnitedStates or in U.S. custody pending dueprocess for oil resumption of democratic rule in Haiti.A House Judiciary refugees and supports subcommitteeh eld a hearing on the current U.S.hand ling or the legislation, Haitians fleeingHaiti. Therewas no action on the Senate measures. Immigratio n Act of P.L 102-232(H.R. 3049), enacted 12/12191,provides tech Supportscertain im · 1990 Amendment. nical correctionsto a number of provisionsin the Immigra prol}('fflentsin the 1990 tion Act of 1990 and incorporatesadditio nal immigration-re law. lated provisions.includin g clarifyingjud icial naturalization functions.broadening admission s for foreigne ntertainers and athletes, and lilting restrictive and burdensomeproce dures regardingtemporary workers. Immigration and P.L 102-140 (H.R.2608), fiscal year 1992appropriations Supportsincreased Natur alluti oo )oo legislationenacte d 10/l8/91, indudes $938.241million for fundingfor immigra Strvlce (INS) the INS. tion enforcement, Appropriatiom legalizationand anti discriminationefforts. Nation al Endowment H.R. 2686,fiscal year 1992appropriations legislation as Opf]O$eSrestrictions for th e Arts passedby the Senate,would havt prohibitedthe NEAfrom on NEAgrant content fundingcertain typesof arL The NEArestrictions were or ideas. droppedin conferenceand werenot includedin P.L. 102-154, the final versiono f M.R. 2686enacte d 11/13191. ANTITRUSTLAW -Vertical Pri ce S. 429 and M.R. 1470wou ld amend the Sherman Acllo Opposes. Pixing establish new evldentiarystandards applicable in civil cases involvingresale price maintenance conspiracyclaims. The Senate passedS. 429. The House passedM .R.1470. ATTORNEYS •Civil Rlllhta P.L. 102-166(S . 1745).enacted 11/21/91,a llowsawards l o Supports. Attorneys' Pee prevailing parties under Tille VJI or the CivilRigh ts Actof Awards 1964 and 42 U.S.C. Section 1981 to include reasonable expert fees for testimonialand non-testimonialservices. UmllaliOOI OD S. 133 would limit attorneys' feesunder variousstatutes that Opposes. Attorneys ' Fees permit feeslo be awardedto parties prevailingagainst the government. Therewas no action on S. 133.There was no comparableM ouse measure. THEALABAMA LAWYER March 1992/ 143 Subject Description and Status ABA Posit ion CIVILRIGHTS/CONSTITUTIONAL LAW Abortion H.R.2699, fiscal year 1992approp riations legislationas Supportslegislation al Appropriations passed by the Houseand Senate, would havea l.lowedthe the federaland stale Districtof Columbia to use locallyraised revenuesto payfor levelslo Ii.noncecon abortions. The presidentvetoed H.R. 2699. H.R.3291 (P.L stilulionallypermitted 102-11I), enacted 10/1/91as the fiscal year 1992appropria abortionservices for tions legislation for lhe Districtof Columbia, continuesto ind(qenlwomen. restrict use of public funds for abortionsto cases where the lifeof the mother is endangered. t*Clvil Rights Act of P.L. 102-166 (S. 1745).enacted 11121/91,reverses or Supportsin principle. 1991 modifiesseve ral recent Supreme Court decisionslha t restricted the rights of 1vomenan d minorities to sue for discriminationin the workplace. • community Early Housedrafts of omnibusbanking legislationwou ld Opposesany narrow Reinvestment Act have limited the enforcementand narrowedthe application ing of the application (CRA) of the CRA,wh ich seeks to avoidd iscriminationand stabi oftheCRA. lize housing and businessesin low-and moderate-income communities.The House BankingComm ittee dropped the language and it was not includedin S. 543,the final version of omnibus banking legislation passedby the Houseand Senate and sent to the president Constituti onal S. 214 would establishprocedures for conveninga constitu Supports procedures Convention tional convention. There was no action on S. 214. There was legislationin principle no comparable House measure. but opposescertain provisions;has no viewon whethera con ventionshould be con venedon any specific issue. Discrimination S. 574 and H.R. 1430wou ld prohibit discriminationin Supportsfederal , stale Sexual Orientation employment.hous ing, public accommodationsand federally and localanti assisted programs on the basis of affectional or sexual orien discrimination legisla tation. There was no action on the measures. lion in this area. • Family Planning H.R. 2707, fiscal year 1992appropriat ions legislation as Supports legislationta Counseling passedby the House and Senate, would havep rohibited lhe ensure that all TilleX Departmentof Healthand Human Servicesfrom spending palienlsreceive access money lo enforce regulations for TitleX of the Public Health lo completeinforma ServicesAct that prevent federally-funded family planning tion regardingth eir clinics from providing counseling concerning the use of hea//h careoptions. abortion as a method of familyp lanning or providingrefe rral for abortion as a method of familyp lanning. S. 323and H.R. 3090 would ensure that women receivingassistance under Title X are providedwith all informationand counseling regardingth eir pregnancies.The presidentvetoed H .R. 2707; the Housesusta ined the veto. The Senate pas.~ed$. 323. The House Energyand CommerceCommittee approved H.R. 3090. 144 I March I 992 THE ALABAMALAWYER Subject Description and Status ABA Position COURTS/JUDICIARY Court Strlpptni S. 77 woulddivest the federalcourts of jurisdiction in cases Opposes. concerning volunwrysc hool prayer, Biblereadi ng or religious meetings in public schools or public buildings. There wasno action on the measure.There wasno com, parableHouse measure. - Dlvemty No legislationwas introducedLo make changes in lhe diver Opposesabolishing or Jurlsdlction sityjurisdiction system. curtailing diversity jurisdiction. •Federal Courts S. 1569would implementnumerous recommendationsfrom Supportsand opJ)()Us Stucly Committ« lhe 1989report of the F'CSCthat were not includedin the oorious prouisioris. (PCSC) JudicialImprovements Act of 1990,omnibus court reform legislationenacted 12/1190.A Senate Judiciarysubcommit tee held hearings on S. 1569. There w,1sno comparable I louse measure. See related entrl u . •tnt erclrcult Paoel S. 1569would authorize a frve-yearpilot project to re$Olvt Opposescreotion of on intercircuit connicls through SupremeCourt referral to exist inlercirruilpanel . ing courts of appeals.A SenateJudiciary subcommittee he ld hearingson S. l 569.The re was no comparable Mouse measure. tJucllcial Federaljudges nceived on 2111191lhe finalstage of a pay Supportsjudicial Compenutlon increasepackage enacted in 1989by P.L 101-194, which salary incrroses. includeda 25 percent raiseand a 3.6 percent 1991cost of livingadjustme nt (COLA). Judges previouslyr eceivedas parl or Lhe packageCO LAadjustments for 1989 and 1990 totaling 7.9 percent. t•Juclicial Immunity S. 653 and H.R. 671 wouldovertum the SupremeCourt SupPOrls. decisionin Pulliamu. Allen,466 U.S.522 ()984), by eliminating certain grounds for injunctive relief and allorneys' fee awardsagai nst judges. M.R.3206 w ould prohibit only costs, Includingattorneys' fees, from being awardedagainst judges. The SenateJudiciary Committee approvedS. 653. A HouseJudiciary subcommittee held a hearing on H.R. 671 and H.R 3206. •Judicial Impact S. 1569,~ ould require that each committee of Congress S11p110rlsi11 clusio11of Statemeota includea judicial Impactsta tement wilh any reportedbill or ]udlcialimpact state resolution that may affectthe courts. A SenateJudiciary ments for both federal subcommitteeheld a hearing on S. 1569.There was no and slate legislation. comparableHouse measu re. Peremptory No legislation was Introduced lo permit the peremptory chal Supports peremptory ChaUeqe - Jud, u lenge of a federal districtjudge. magistrateor bankruptcy challengeof judges. judge. t•Raclreteer H.R. 1717would limit civilactions under RJCO.The House Supportscertain civil Influenced and JudiciaryCo mmiltee approvedH.R. 1717. The re wasno RICOli mitations. Corrupt Organizations comparable Senate measure. Act (RICO) THEALABAMA LAWYER March 1992/ 145 Subject Description and Status ABA Position "R ule of 80" S. 1818 would allowa federal judge who has reached lhe age Supports amendingthe of 70 with at least fiveyea rs but less than IOyears of service "Rule of 80'' to permit to retire in senior status at reduced pay, with a requirement of judges betweenth e working a minimum of 25 percent of an activejudge 's nor agesof 60 and 64 lo mal workloadun til 10 years of service is reached. The current take senior status if "Rule of 80" allows a judge to retire at full pay upon reaching their ageand years of age 70 after 10 years of service or to retire in senior status at servicet otal 80. age 65 if the judge's age and years of service total 80. There was no action on the measure. There was no comparable House measure. Social Security Court H.R.2159 would establish an Article I Social Security Court Opposes. to hear appealsof final benefits decisions of the Social Security Administration.There was no action on Lhe bill. There was no comparable Senate measure. tState Justice P.L. 102-140 (H.R.2608). fiscal year 1992app roprialions Supportsa well-funded lnatitute (SJI) legislation enacted 10/2Mll, includes$13 .550 million for SJ/. the SJ!. •Temporary S. 1569wo uld abolish TEGAand transfer the court's existing Supports abo/ilionof Eme.,gency Court of case.load to the Court of Appealsfor the F'ederalCircuit A TEGA. Appea.ls (TECA) Senate Judiciary subcommittee held hearings on S. 1569. There was no comparable House measure. Voir Dire S. 862 and S. 865 would create four-year demonstration Supports. programs in four federald istricts under which attorneys would be given a limited right to conducl questioning of prospective jurors in criminal and civil cases, respectively. The Senate passed the bills. There was no comparableH ouse measure. CRIMINALJUSTICE • Anti-Crime The conference report on H.R. 3371, omnibus anti-crime Supportsand opposes Package legislation, includes numerous provisions to combat crime, variousprovisio ns. including expansion of the federal death penalty to more than 50 crimes and increased financialass istance to federal, state and local law enforcement efforts.The House passedt he conferencereport , but the legislation stalled in the Senate. See related entries. tAttomey Fee No legislationwas introduced to exempt attorneys' fees from Opposesforfeiture o f Forfeiture the forfeiture language in the ComprehensiveCrime Control fees eamed by an attor Act or 1984. That law and the Anti-DrugAbus e Act of 1986 ney in the legitimate have been interpreted to authorize governmentseizure or representationof a convicted criminals' assel:s,incl uding monies allegedly ob client. tained through illegal activityand then paid to defenseattor neys for bona fide legal services. tAttomey Subpoenas No legislation was introduced to provide procedural Supportsrequiring safeguardswith respect to the issuanceof subpoenas to priorjudicial approval lawyers in trial and grand jury proceedings. beforea subpoenamay be issuedto an allor ney to obtain informa tion about a client. 146 / March 1992 THEALABAMA LAWYER Subj ec t De scription and Statu s ABA Po sition Capital Punllhmmt - The conrerencereport on H.R.3371, omnibus anti-crime Supports. Native Amuicam legislation.\\'Ollld authorize NativeAmerican tribal govern ments lo eJectwhether the federaldeath penalty wouldapply to their reservations.The House passed the conference report. but the legislationstalled in the Senate. The conrerencerep0rt on H.R.3371, omnibus anti-crime Supports the am legislation,would codif)• the Supreme Court decision in U.S. ferencereport v. Leon,468 U.S. 897 (1984),to allow the use of evidence provisions. obtained In violationof the fourth Amendmentif the police acted in objectivegood -faith relianceon a warrant that later pr FBI SabpMna No legislationwas introduced that would have granted the Opposessuch legisla Aulhorit;y federal Bureauor Investigationunrestrict ed authority lo tion and urgl!Sthat issue administrative subp0enas. hearingsbe held beforelegi slation is considered. Feduallzlnll Crimes H. R.3371, omnibus anti-crime legislation as passedby the Opposes. Senate, would have expandedfe deraljurisdiction over tra· ditionallystate crimes by allowingfedera l prosecutorsthe option or seeking the death penalty in casesor homicid~ committedwith firearms obtained in interstite commerce, even in stales that ban capit.11punishment . Confereesdid not include the provisionsIn the co1lference report on l l.R. 3371,which passedthe House but stalled in the Senate. t• Cun Control - The conferencereport on H.R. 3371, omnibus anti-crime Sur,porfs a 0011on Aoau lt Weapons legislation.contains no assault weaponsprovisions. The civilianpossession, House passed the conferencereport, but the legislation manufacture and im stalled in the Senate. Senate-passedanti-crime legislation port of assault would have banned the sale, possessionand transfer of nine UJ('(Jf)On$. typesof roreignand domesticsemi-automatic assault weapons.H .R. 3371, as approvedby the House Judiciary Committee,111ould have banned 13 types of assault weapons and would have limited gun clips to seven rounds of ammunition. The House deletedassault weaponsprovisions from H.R.3371 during floor debate. Confereesdid not include the Senate provisionsin their report t• Cun Control The conferencereport on H.R.3371. omnibus anti-crime Supportsenaclmenl of Waltinll Period legislation, includes a fivt-daywaiting periodfor the pur a rMSonableu:oiling chase of a handgun. during which localauthorities must do period and perfor backgroundchecks on p0tential handgun buyers.The House mance of criminal passed the conferencereport, but the legislation stalled in the backgroundchecks Senate. Senate-passedanti •crime legislation included the priorlo Illepurchase five-daywaiting period. 11.R.3371 and 11.R.7. as passedby of lireonns. the House. includeda seven-daywailing period lo pennit. but not require, localauthorities to conduct background checks on potential handgun buyers. Confereesadopted the Senate langunge. THEALABAMA LAWYER March 1992/ 147 SubJect Descript ion end Stetus ABA Position rHabeu Corpu1 The conference report on H.R. 3371, omnibus anti-crime Supportsin principle legislation,would streamline habeas corpus proceduresin the conferencereport death penalty casesby requiring competent counsel al all provisions;opposes stages or capital punishment litigation. imposinga one-year Senatet' Mandatory Mini.mum The conferencereport on H.R.3371, omnibus anti-crime Opposesmandatory $entH CU legislation,includes numerous provisionsthat wouldestab minimum sentences. lish mandatory minimum sentences for various offenses. Confereesdid not include Senate-passedprovisions that would have imposeda mandatorysentence of 10 to 30 years for possessionof a firearm while committing a violenl crime or traffickingin drugs. The House passed the confer ence report, but lhe legislationstalled in the Senate. •National S. 1569would create a National Commissiono n Federal Supportsin principle. Commlu lon on Criminal LawR eform to undertake a comprehensive study or Federal Criminal Law the federalcriminal la1\!Sin title 18 and draft a proposed Reform recodificallon.A Senate Judiciary subcommitteeh eld hear ings on S. 1569. There was no comparableH ouse measure. Peremptory The conference report on H.R.3371. omnibus anti-crime Supportsin principle. Ch.allH«e.Juron legislation.does not include peremptorychallenge provisiom.The House passed the conferencereport, t,ut the legislallonstalled in the Senate. H.R.3371 as passedby the Housecontained a provisionamending Rule 24(b) of the f'ederal Rulesof CriminalProcedure to equalize the number of peremptorychallenges in felonycases at six per side. Confereesdid not include lhe provisionsin their report. Prl aon Impact The conferencereport on ~J.R.3371, omnibus anti-crime Supports. Stateme nll legislation,would require the attachment of a prison impact statement to any proposedlegislation s ubmitted to Congress by the judicial or executivebranc h that would increaseo r decrease the number or federal prisoners.Th e House passed the conferencereport, but the legislationstalled in the Senate. t•Raclal Juatl ce Act The conferencereport on H.R.3371. omnibus anli-<:rirm Supportse!Tedive legislation,does not Includespecific provisions addressing remedieslo eliminate racial discriminationin capital sentencing.The House passed racialdiscrimination the conferencereport, but the legislationstalled in the Senate. in capitol serrtencing. Anti-crimelegislation approved by the Senate and House Judiciarycommitlees would have alloweddeath row prisoners lo contest their sentences using statistical evidence to prove the existence of racial bias in application of the death penalty. The provisionswere droppedin both houses during floor debate. 148 / March 1992 THEAu\BAMA LA WYER Subject Description and Status ABA Position •Sa. tuctni The U.S.Sentencing Commission held hearingson Supportsand opposes CuJddiou numerow propooedamendments to the federalsentencing c11rtainamendments. guidelines. Cautionsagainst prolifer ation of amendments without adequater euiew limq frompractitio ners in the field. ELDER LAW •crandpareota ' A HouseSelect Aging subcommittee held a hearingon the Supportsfurther VuitatJoo RJgbta federalrole in assuringthe visitationrights of grandparents. d111N1lopmenlof sta le H. Con. Res.255 would exp ress the senseof the Congress law in this areafollow that the statesare encouraged10 adoptuniform visitation ing recommended rights laws. There wasno action on the measure. guidelines. GuardlanahJp S. 352 and H.R. 800 wouldestablish federal minimum stand Supportsronlinuing ards to protect due pr~.ss and equalpro tection rights for improoementof guard individualsundergoing guardlilllship proceedings in the ianshipand ronser states. li.R. 930 wouldrequire states to adoptcertain guard volorshipla ws and pro ianship laws In order to receive Medicaidfunds . Therewas ceduresal the stale no action on the measures. level. Older Americana Act S. 243 and H.R.2967 wou ld reauthorize the OM for four Supports reaulhorea (OAA) yearsto provide supportiveserv ices for the elderly and to lion with priorityon establish a long-termcare ombudsmanprogram to monitor the deliveryof/egal nursinghome care.Both bills would provide that fundingfor serviceslo the needy legalassistance continue to be administeredby area agencies elderly. on agingas a priorityservice, and wouldestablish the state agencyon agingas the focalpoint for elder rightsand developmentof legalassistance programs. The Senatepassed S. 243.The Housepassed H.R. 2967. •Social Security • H.R. 1799would improve the SocialSecurity disability Supportsimproving Disability Rulew reviewprocess. H.R. 2838 would provide funds for a General the SocialSecurity dis ProcessAccounting Office study on how to streamlinethe process. ab11il,'1review process. A MouseWays and Meanssubco mmiltee held hearingson these and other proposals for improvingthe SocialSecurity Administration. There was no comp.,rable Senate measure. *Social Security• S. 2038. H.R.2838 and H.R.3996 would estab lish the Social Supports. Independent Aiency SecurityAdminislralion as an independentagency. A House Waysillld Means subcommittee held hearingson ~I.R.2838 and other proposalsfor improvingthe SocialSecurity Ad ministration.There was no action on S. 2038. •socJal Security • S. 243, legislationto reauthorizethe OlderAmericans Act Supportsrepeal. Rdiremut Eaminga (OM), S. 2038and 11.R. 2838would partially eliminate or Tut repealthe SocialSecu rity earningstest. whichplaces a limit on thearnounl of moneya retiree mayearn while also receiv· ing SocialSecurity benefits. The Senatepassed S. 243. House-passedlegislaUon to reauthorizethe OM, H.R.2967, does not contain repealprovisio ns. A House Ways and Means subcommitteehe ld hearings on H.R.2838 and other proposals for Improvinglhe SocialSecur ity Administration. There was no action onS. 2038. TMEA l.ASAMALAWYER March 1992/ I 49 Subject Description and Status ABA Position ELECTIONLAW t*Campaign S. 3 would providecomprehensive campaign finance reform Supportspartia l public Finance Reform for Senate elections; H.R.3750, for House elections.The financingof congres· Senate passed S. 3. The Mousepassed M.R.3750. sio11a/e/ectio11s and reaso11oblecontribu· lion limits. Opposes mandatorycandidate spendinglimits. Direct Electio n H.J. Res. 145 proposesamending the U.S.Constitution to Supports. abolish the Electoral College and to provide for direct, popular election of the president and vice-president. There was no action on the measure. There was no comparable Senate measure. Federal El1 tVot1 *Child Abuse S. 838 would extend for three years the programs under the Supports reauthoriza. Prevention and Child AbusePrevention and Treatment Act and the Family lion. Treatment ViolencePrevention and ServicesAct. H.R.2720 would reauthorize the programs for one year. The Senate passed S. 838. The House passed H.R.2720. ~• Fa.mil,y and S. Sa nd H.R.2 would provideworkers with up to 12 weeks Supports. Medical Leave of unpaid, job-protected leave annually for the birth or adop· tion ofa child, or for a serious illness of the employee or immediate family member. The Senate passed S. 5. The House passed H.R.2. *Family H.R. 3603would improve the quality of foster care, child Supportsthe enact· Pruenation/Foeter 1velfare and adoption sef\•ices,and improvecourt proceed· men/ of a number of Care ings in foster care cases. A House Waysand Meanssubcom · steps to imvrovethe mittee approvedthe bill. There was no comparableSenate court processin foster measure. care cases. 150 I March1992 THEALABAMA LAWYER Subject Description and Statua ABA Poaltlon INTERNATIONALLAW •AIDS Ruurch • P.L102-145 (H.J. Res.360). a continuingb udgtt resolution Supp0rtsstrong U.S. World 8e1tlth enacted 10124191,continues to fund the WHOGlobal Pro assistana!fo r the Organization (WHO) gramon AIDSal its fiscalyear 1991l evelor $23 million WHO Global Program through March 1992.H.R. 2621, proposedfiscal year 1992 on AIDS and for effec foreignoperations appropriations legislat ion, would ap li/111coo rdinalion of in propriate $30 million for the program. The House passed /emotional AIDS H.R. 2621. r>rogroms. •Airline Liability MontrealProlocol 3 to the 1929 WarsawConvention would Supports. streamlinethe recoverysystem for airline liabilityand assure full compensationl. o U.S.nationals in casesof death or injury to pa.ssengersin internationalaviation. M ontreal Protocol4 wouldupdate the cargoprovisions of the War sawConvention. The Senate ForeignRelations Committee apprO\'tdboth protocols, whichnow await Senate noor action. ConvenUonalAnned TheTreaty on ConventionalArmed Forces in Europewould Supp0rls. Forn, In Europe drasticallyreduce the level of conventional forcesin Europe Treaty by imposingceilings on militaryequi pment deployed by North AmericanTr eatyOrganiza tion (NATO)states and former members of the Warsaw Pact in nn area between the Atlantic Oceanand the SovietOral M ountains. The Senate approvedthe treaty, and the presidentsigned it 12/12191. P.L..102 -228 (H.R.380 7), enacted 12/12191)191, Implements the treaty. •"Fut -Trade'' S. Res.78 and H. Res. 101 wouldhave endedthe president's Supportsextension of Trade Net oUaUnll "fast-track"authority in negotiatinginternational trade "fast-trackwauthorit y. Authori ty agreements. "Past-track" authorityprovides that Congress\\~II \'Ole.on implementinglegislation using an expeditedprocedure prohibitingamendments. The Senate and Houserejected the reso lutions.resulting in continueduse of the "fast-track" procedures through May31.1993. lForelgn Aient , S. 346 and Ji.R. 3597wou ld narrowth e registration exemp Opposes. Relli•ll'ation Act tions for lawyersunder FARAby eliminatingall exemptions (FARA) exceptfor representationof foreign clients before a court of law and before the U.S. Patent and TrademarkOffice . A Senate GovernmentalAffairs su bcommittee held oversight hearingson all lobbying disclosure laws,including FARA. A House Judiciarysubcommittee approve d H.R.3597. - International The InternationalCovenant on Civiland PoliticalRights S11pp0rtsin principle. CovenllDl on Civil requiresratifying c ountries to guarantee certain civiland and PollUcal Rfllht.a politicalrights and protect those rights for all individualsin their territories. The Senate ForeignRelations Committee held a hearingon U.S. ratificationof the co,-enant. Law of th e Sea The Lawof the Sea Convenlion definesinternati onal non Supports the appoint Convention seabedand deep-seabedrights and sets forth obligationsto ment by C(Jngressand protectand preserveth e marine environment. There has been tho president of a high no action on U.S.ratincatio n of the convention followinga level working group lo re· 1990 Senate i>orelgn Relations Committee hearing. solvedeep sea bedissues. THEALABAMA 1,1\WYER March 19921 151 Subject Description and Status ABA Position Maritime Liability There was no action on U.S. ratificationo r the 1968 Protocol Supports. (Visby Amendments) to the 1924 International Convention for the Unificationor Certain RulesRelating to Bills or Lading. 0\1erso,as Pri\1ate P.L. 102-145( H.J. Res. 360), a continuing budget resolution Supports. ln\1estment extending funding through March1992. includes$25 million Corporation (OPIC) for direct loans and $250 million for guaranteed loans under OPIC.M.R. 2621 , proposedfi scal year 1992approp riations legislation,inc ludes $25million for direct loans and $375 million for guaranteed loans under OPIC.The Housepassed H.R.2621. Ozone Ttt aty The Montreal Protocolon SubstancesThat Depletethe Supports. OzoneLayer limits use or substinces, such as chlorofluorocarbons, that deplete the atmosphericlayer protectingthe earth from dam aging ultravioletlight The Senate approvedamendments to the treaty, and the president signed them 12/13/91. Torture Victim S. 313 and H.R.2092 would providefor a civil cause or Supports. Protection action in U.S.courts by resident aliens and U.S. citizens against those who, acting under the actual or apparent authority of the government or any foreign nation, subject an individual to torture or extrajudicialkill ing. The Senate JudiciaryComm ittee approvedS . 313. The Housepasse d H.R.2092. U.N. Approp1'iations P.L. 102-140(l-1.R. 2608), fiscal year 1992 appropriations Supportspayments of legislation enacted 10/28/91, includes$842.384 m illion to U.S.assesssments lo the pay contributions to international organizations, with not UnitedNations as well more than $92.719m illion of the total to be expendedto pay as paymentsof all arrearages. amounts owedbut not yet paid. *U.N. Conv ention The U. N. Conventionon the Elimination of All Formsof Supportsin principle. Against Discrimination Against Womenre quires signatoriesto show Discrimination progress in meeting the goals of full freedomand equality ror Against Women women.There has been no action on U.S. ratificationof the convention since a 1990 Senate Foreign RelationsCom mit tee hearing. U.N. Con\1ention on There was no action on U.S. ratificationof the U.N. Conven Supportsin principle. the Rights of the tion on the Rightsof the Child,wh ich providesa new inter Child national standardan d body of international lawon what the world's nations must do to improvethe care and treatment of children. LEGALEDUCATION *Higher Educ.atlon S. 1150and H.R.3553 wo uld reauthorizefederal higher Supports. Act Reauthori zation education programsfor fiveyea rs, including the Clinical LegalExperience Program; the Assistance for Training in the LegalProfession P rogram, which is administeredby the Council on LegalEducation Opportu nity (CLEO);Stafford Student Loans;and the PatriciaR oberts Harris ~'ellowships. The Senate Laborand Human ResourcesCommittee a p provedS . 1150.The House Educationand LaborCommittee approvedH.R.3553. 152 / March 1992 THE ALABAMALA WY ER Subject Description and Status ABA Pos ition -• Legal Education P.L. 102-170 (H.R.3839), fiscal year 1992 appropriations Supports. Appropria tion, legislationenacted I 1126191,includes $3.045 million for the A5sistancefor Trainingin the LegalPr ofessionProgram , which is administeredby the Councilon LegalEducation Opportunity(C LEO):SS million for LheClinical Legal Ex perienceProgram; and $4.22b illion for Stafford Student Loans. LEGALSERVICES •Adwocacy for th e P.L 102-173(S.1475), enacted 11.127191, providesa four Supports. Mentally Ill year $!95 million reauthorization for the Protection and Advocacyfor MentallyIll IndividualsAct of 1986,which wists states in establishingand operatingprotection and ad\lOCacyprograms for the mentallyill. •Death Penalty P.L 102-140(H.R. 2608), fiscalyear 1992 appropriations Supports. Resourc e Cenlera legislation enacted 10/28/91,incl udes $11.524 million for death penaltyresource centers, which provideexpert assis mnce to counsel handling capitalpost-conviction cases. t• LelfaJ Serwlcea P.1..102-140(H.R. 2608), fiscalyear 1992appropriations Supportsadequate Corporati on (LSC) legislationenacted 10/28191,includes $350 million for the funding. Appropria tio n• LSCand continuesex isting restrictions. t • l,elfaJ Servin• H.R. 2039 wouldreauthorize the LSCfor fiveyears with Supportsreaulhorea CoTpOration (LS C) certain restrictions.The House Judiciary Committee ap tion with minimal Reauth oriza tion provedH.R. 2039. There was no coml)llrableSenate restrictionson 10<:al measure. grantees. MILITARYLAW Court of Military No legislationwas introduced to providea judicial rellremenl Supportso retirement Appeab and disability system for judges of the U.S.Court or Military system for military Appealssi milar lo the retirement systemso f all other Article courtsim ilar to those I courts. of other ArticleI courts. Fere1 Doctrine H.R.3407 would partiallyoverturn lhe U.S.Supreme Court Supports. ruling in Feres u. UnitedStates, 340 U.S. 135 (1950). and allowm embersor the U.S. Armedforces lo sue the United States for damagesfor certain injuries caused by improper military medicalcare. A HouseJudiciary subcommittet held a hearing on H.R. 3407. There wasno comparableSenate measure. PATENT,TRADEMARK AND COPYRIGHTLAW lnduatria .1 De1itn tt.R. 1790would pro\'idefor intellectualproperty pr otedion Supports. or industrialdesign s for useful articles.There was no action on the measure.There was no comparableSenate measure. THE ALABAMALAWYER March1992 I 153 Subject Description and Status ABA Position *Pale.nland P.L 102-204(H.R. 3531), enacted l211Mll, reauthorizes the Oppo$41Scertain user Tradem art Office PTOfor one year and generallyadheru to the Budget Recon fe,u containedin the (PTO) ciliationAtl or 1990,which convertedthe PTOfrom an legislation. Reautb orintlon agencypartially fundedby user rees IDone ahnost ent.irely fundedby user rw. Patent ln Frinte menl No legislation was introducedto repeal 28 U.S.C.1400(b), Supportsrepeal of Venue which providesfor a specialvenue provisionfor patent in both sections. fringement cases, and 28 U.S.C.1694 . which governsser viceo r process in certain patent infringement actions. State Llabllll)t S. 758 and S. 759would clarify that slates, instrumentalities Opposesliability ex· Exemption or slates, and officersand employeesof slates are subject to emption for states in damagesin patent and trademark infringementcases, respec· pa/mt, trademarkand tively.A Senate Judiciarysubcommittee approved S. 758and copgri_ghtca .,;es. S. 759.There was no comparableHouse measure. PL 101553,enacted 11/15190.clarified that states are not exempt from liabilityi n copyrightcases. REAL PROPERTY,PROBATE AND TRUST LAW Bankruptc:y No legislation was introduced to overturn the 5th U.S. Court Supportsover turning Du"'4/I Case or Appeals decision in Durrett u. Washington Nationa l In OurrretL suranceCo., 621 f'. 2d 201 (5th Cir., 1980), which held that a non-collusive,reg ularly conducted foreclosuresale could be set aside as a fraudulent transfer if the sale price were less than lhe court determined was a reasonably equivalentvalue ror the property. *Supufund Lender S. 651and H.R. 1450would clarify lender liability Supportsdari!ication LlabUily provisionsin the ComprehensiveEnvironmental Response , ofSuper{und liability Compensationand LiabilityAct of 1980 (Superfund) by for secured aetfitors restoring the secured creditor exemption.H.R. 1450also and fiduciaries.. wouldclarify the liabilityor fiduciaries.The Senate passed the provisionsof S. 651 as part or S. 543,omnibus banking legislation. Confereesdid not include the provisionsin the conferencereport on S. 543.whic h was passedby the House and Senate and cleared for the president.A Senate Environ ment and Public Works subcommittee held hearings on S, 651. A House Banking,H ousing and UrbanAffairs subcom · mittee held hearings on H.R. 1450. TAX LAW *Amortl&atlon of S. 1245, H.R.563, H.R. 1456and H.R.3035 would amend Supportsin prillciple. lntan,lblu the Internal RevenueCode or 1986 to simplifythe amortiza· lion or intangibles.The House Waysand MeansCommittee held hearings on the House bills. There was no action on S. 1245. *lntemal Revenue P.L. 102-141 (M.R.2622) , nscal year 1992appropriations SupJJortsade quate IRS Servlce(IRS) legislatione nacted 10/28191. includes S6.7 billion for the funding. Appropriation, LRS. 154 / March 1992 Tl-IEALABAMA LAWYER Subject Description and Status ABA Position *Pen •i on Plant S. 1364, H.R. 2641a nd H.R. 2742 ,vould amend lhe Internal Supports in principle. RevenueCode of 1986to simplifyprovisions a pplic.ibleto qualified retirementplans and to expandaccess to such plans.A Senate Financesubcommittee held a hearingon S. 1364.A HouseW ays and Means subcommilteeheld a hearingon the House bills. t•Pnpaid Legal P.I.. 102-227 (H.R 3909), enacted 12/11/91, woulde xtend Supports pennanL'tll Servleu lhru 6130192Seclion 120 of the Internal Revenue Code. authorization. whichexcludes from taxationthe paymentsmade by an employerto a group legalservices plan (up to S70per employee) and the valueo f services receivedby employees under such a plan. S. 451, H.R. 151 and H.R. 187 would make Section 120p ermanent. There was no action on the measures. *Tu SimpllOcallon S. 1394 and H.R.2777 would simplify «rtain provisionsof Supportss imp/i/iction the Internal R~nue Codeof 1986. ASenate Financesubcom- of the tax laws. mittee held hearingson S. 1394.The House Waysand Means Committeeand one of its subcommittees held hearingson H.R. 2777. TORT AND INSURANCELAW Health Catt S. 1227, S. 1232,S. 1936,e t al., and H.R. 1300, H.R. 2535, Supports legislation et al., propose various methods to increase access to or that guaranteese very guarantee adequate.a ffordable health c.ire for all Americ.ins. American access to Senate and Housecommittees held hearingson the health qualityhealth ca re rogard· c.ire issueand the various proposals. lessof per$()TW[ income. LlllcCarran-Fe,t,uon S. 430 and H.R. 9 wouldam end the McCarran-Ferguson Act Supports repealof the Act to modifyo r repeal the insurance industry's limitede xemp anlitn1stexemption tion from federal antitrust laws. The House Judiciary Com and enactment of legis mitteea pprovedli. R. 9. There was no action on S. 430. lationa uthorizing cer tain a,operaJiue actiuitv. t• MecUeal S. 489, S.1123. ct al., and H.R. 1004,H .R. 3037, etal., '<'Ould Opposesfed eral legis Professional Llabllll y preempt state lawsor provide federal incentives for changes lation, maintoli1ingth at In the medic.ii professional liability system at the stale level. tort refonn should be ad A Senate Finance subcommittee held a hearing on medical dressed at the state leuel. professionalliability issues. There was no action in the House. t •Procluct Liability S. 640, H.R. 2700and H.R.3030 would preempt state Opposesbroad federal product liability lawsand establish a broad federal product pn>empliueprodu c/ liability law.Th e Senate Commerce, Science and TransJ)Or liabillly lows,but favors tatlon Committee approved S. 640.T here was no action on federal solutions in the Housemeasures. /wo discrete areas. L£CISL\ TIV£ INFORMATION- Stoff mcmb THE Al.ASAMALA WYER March 1992/ 155 • M·E·M·O·R·l·A·L·S • !Thi•memori>l origin•IIY appmed In thr •um. 1929 and receivedhis undergraduate RiCMARDF ORRESTDOBBINS "'" 1991;...,, of lneBirminl}h 156/ Marchl 992 THEALABAMA I.AWYER RICHARDBAILEY EMERSON Whereas.Richard justly earned the United States Army from 1942-45 accolade"the finest municipalattor· retiring with the rank of major after Whereas, the ney in Alabama",having ably served having earned numerous honors, HonorableRich the City of Annistonin that capacity including the Bronze Star and the ard BaileyEmer for 26 years;and awardingof honorarymembership in son, al age 78, Whereas, Richard was devoted to the Military Divisionof the Order of died in Anniston, his family. his Presbyterianchurch, the British empire;and Alabama on the his wide circle of friends, his fe1low Whereas, Richard was a perfect 18th dayo( Sti>t· lawyer,and his fellowman. and his gentlemanand alwaysadhered t o the ember1991; and very name was synonymous with highest legal, intellectualand ethical Whereas, the honesty, character. integrity, and standards and with his keen wit and Calhounand ClebumCounty Bar Asso devotionlo the lawand diligence:and fine sense of humor was forever a ciation desiresto rememberhis name Whereu, Richard served as presi sheer pleasureto be around. and to recognize his substantialand dent of the Alabama Law School Richard is survived by his wife, unselfish contributions to the legal Alumni Associationin J 966-67 and Eleanor ChapmanEmerson of Annis profe!lliion,as wellas to our communi was a member of the AlabamaSta te ton; two daughters,Eleanor Em erson tiesand lhe Stateof Alabama: and Bar AdvisoryCommittee on Appellate Thomas of Tuscaloosaand Virginia Whereas.Richard was a memberof Practice. having receivedcertificates Emerson Hopkinsof Anniston;a sis the CalhounCounty Bar Association, of appreciation from the Alabama ter, Mavis Emerson Hooper of Flo the AlabamaState Bar and the Ameri SupremeCourt in 1974and 1985 for rence,and eight grandchildren. can Bar Associationand maintaineda his outstandingand meritoriousser Thomase . Dick, pr8$ident private practiceof law in excesso( 50 vices;and Cclhoun-ClebumCctmty years:and Whereas, Richard served in the BarAssociation CLARENCEWILLIAM ALLGOOD HARRY1-IA\VTHORNE HADEN EDWARDRAYMOND M URPHY Binningham Huntsuille Florence Admitted:1942 Admitted: 1949 Admitted: 1925 Died:November 30, 1991 Died:April 3 , 1991 Died:November 7, 1991 JOSEPH ALLEN HORNSBY Gadsden DAVIDR oss BENSON Admilled:1962 R. RANDOLPHP ACE,JR. Sprague Died:September 20 , 1991 Alabaster Admitted: 1957 Admitted: 1977 Died:December 5, 1991 Died:December 11, 1991 WATKINSCOOK J OHNSTON Montgomery Admitted:1932 Died:D ecember 26, 1991 THOMASEruc EMBRY SPOTl'SWOODWILLIAM Binningham HOLi.ANDW ILLIAMS Admitted:1947 MoRRJs CLIN'l'oN McGEE Greensboro Died:January 12, 1992 Tuscaloosa Admilled:1946 Admitted: 1940 Died:December 30, 1991 Died:January 15, 1992 THEALABAMA LAWYER March 1992/ 157 ALABAMASTATE BAR 1991-92DUES NOTICE (AllAlabama attorney occupationa l licensesand specialm embershipsexpired September 30 , 1991) AnnualLice nse - Special Membership Dues DueOc tober 1, 1991*De linquent after October31 , 1991 THEALABAMA STAtE BA R SPECIALM EMBERSHIP CARD 199 1-1992 ~ THt>IS IO CfRllfYIHAT ~~~W>~ UNLESS 18ERSHIP l.X-l'IW September 30, l992 SpecialMem ber (paid din,cllyto the AlabamaSl•te Bar) Specialmembers hip status is acquiredpursuant to Section 34-3-17 or Section 34-3-18,Code ofill abama (1975),as amended.l 'ederal and state judges. district attorneys, United Stales attorneys. and other government attorneys who are prohibited from practicing privately by virtue of their positions are eligible for this membership status. License (purchase through the Likewise, persons admilled to the bar orA labama who are not county of primal)/pnclice) engaged in the practice of law or are em11loyedIn a position not otherwise requiring a license are eligible lo be special members. If you are admitted to U1e Alabama St.ite Bar and engaged in the Allorneysadmi tted 10 lhe bar of Alabamawho reside outside the state practice of la~t, you are r equired to purchase:an annualoccupational o( Alabama who do not practice in the st.lte of Alabama also are license.Sec tion 40-12-49, Cede of Alabama (1975),as amended.T his eligible for this status. With the exception of stale allorneys and license gives you the right to practice law in the St"dteof Alabama district attorneys, and those who hold a license at any lime during lhrougb September 30. 1992. The cost of the license is $150, plu~U1 e the bar year. special membersare exempt from n1andatory continu county's nominal issuance fee, and is purchased from the probate ing legal education requirements; howe,•er. this annual exemption judge or license commissioner (where applicable) In the county in must be claimedon the reporting form. Specialmembership dues are which you primarily practice. In addition to the state license, all paid directly to the Alabama State Bar. In the event you enter the practicing attorneys should check with their municipal revenue practice of law during the bar year, which necessitate,;the purchase departments to be sure that the licensing requirementsof the city or of an occupational license, these dues are not reiundable after town are also being meL Pleasesend the AlabamaState Bar a copyof December31, 1991.and no credit will be givenfor paymento f special the license when it is purchased, and you will receive a wallet-sized membership dues. Membership cards. as shown in the sample above, duplicate of your license (pictured above)for identification purposes are issued upon receipt of lhe dues and are good for lhe license year. during the 1991-92license yea r. Special membershipdues are $75. Duesincl ude a $15 annual subscription to Thi!Alabama lawyer. (This subscriptioncan not be deducted from the dues payment.) If you have any questions regarding your proper membership status or dues payment, contact Alice Jo Hendrix, membership services director, at (205) 269-1515 or l-800-392-5660 (in-state WATS). CLASSIFIED NOTICES I AATU : Membo n: 2 tree 11111no•P* bat member per caftndat yeat E.XCE:PTtor ·,:>®tionwanutd· or •posrtlOn offe,ecf' 11,t.ngs- S3S per 111,t!lf1M)nol 50 wo,mor less . S &Oo,e, tddiuonel W(l(d Nonmember9 : S3S per 1nMtt..onot 50 words o, ras. $ 50 QII ldd1tlonll WOfOCla$$,t,9CJ ~ and paymentmust be t«etYIO ICCO'O"'IQ to cne fl>llowt>o°""'""'1gschodlH May '9 2 luuo =t<,,e Ma,ch31 1!192;July '9 2 lu .. ...--May29. 1m No_.,..._,.,.. l>t SOno.-•.odccpyatlOIIIY"*" Pll)'ICltD7lle- ..... )'O'.D -..1.a..,..0--"""gare,l,'..P,,, PO lloa4156.Mm1-.-36101 lewbool NOTICE PARTICIPATE: JOIN A SECTION OR RENEW YOUR SECTION MEMBERSHIP! TOXIINQNE 0A M0AE$ECTO Ott1oeAddress ------Olflce Locallon ------Office Telephone Number ______Annu al AnnuaJ Section Dues Section Duu __ Administrative Law ...... $20 __ Uligation ...- ...... -··--··- ...... $1 5 __ Bankruplcy and Commetclal law ...... -$20 __ Oil, Gas and Mlnaml Law ...... $15 __ Business Torts and Anhtrust Law ...... $1 5 __ Real Property, Probate and Trus1La w ...... $10 __ c ommunications la w ...... $ 15 __ Taxation ...... $15 __ co rporation. Banking __ Workers· Compensation ...... $20 and Business Law ...... $ 1o Total__ __ C,iminal Law ...... $1 O __ EnvironmentalLaw ...... $20 Remember to attach a separate check for each secti on. __ FamilyLaw ...... $30 Man 10: __ Health Law ...... $1 5 Secilons. Alabama Slate Bar __ Labor law ...... $30 ' P.O. Box 671 ' d practicing 5 or more years · $10 II practicing loss lhan S years Montgomery. Alabama 36101 THE ALABAfM LAWYER March 1992 / 159 National and Federal Legal Em made that the qualityof the legal serwcesto Prepare closing ployment Report. 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