THE Alabama Lawyer Smy6lyu 42/6 :9P Page162 8:29PM 4/27/16 Asbmay16 Layout 1 162 the Alabama Lawyer Rsmr

ASBmay16_Layout 1 4/27/16 8:29 PM Page 157 THE AlabamaM AY 2016Lawyer | VOLUME 77, NUMBER 3 LL L A Practical Primer on Protection from Abuse Law Page 172

Meeting The Eﬀective Highlights Counselor Inside Register at https://www Page 188 .alabar.org/about-the-bar/ annual-meeting/ Alcohol Abuse and Mental Health Concerns among American Attorneys Page 198 75202-1 AlaBar.qxp_Lawyer 11/2/15 8:13 AM Page 358

The best malpractice insurance takes no time to find. AIM makes it easy.

Dedicated to insuring practicing attorneys.

Attorneys Insurance Mutual Telephone 205-980-0009 of the South® TollFree 800-526-1246 Fax 205-980-9009 200 Inverness Parkway Birmingham, Alabama 35242 wwwAttyslnsMut .com

"Insuring and Serving Practicing Attorneys Since 1989"

ASBmay16_Layout 1 4/27/16 8:29 PM Page 160

Chance Corbett is an as- serving as the team leader for over three years. sociate director in the He is a senior instructor for the Alabama Law Auburn University Depart- Enforcement Agency and teaches an ad- ment of Public Safety. His vanced active shooter training program to law responsibilities include enforcement officers. Corbett leads the efforts leading the Emergency to teach Active Shooter Response Training to Management Program for the students and employees of Auburn Uni- Auburn University which versity as well as other schools and organiza- includes planning for and tions as needed. managing emergencies and disasters that affect Auburn University. Corbett received his bachelor’s degree in criminal justice and master’s degree in education from Troy University. He is a POST-certified law enforcement officer, nationally registered paramedic and certified firefighter. He is also a certified emergency manager with the Interna- tional Association of Emergency Managers. Prior to working for Auburn University, Cor- bett served seven years as the Homeland Se- curity/EMA director for Russell County and has more than 24 years of public safety experience, many in the law enforcement field. Corbett is a member of numerous national public safety and emergency management Featuring the “WingNuts” Friday, June 24 at organizations. the Presidential Dinner and Young During his career as a fulltime law enforce- Lawyers’/Leadership Forum sections party, ment officer, Corbett spent more than six years with lead singer District Judge Alan Furr, as a member of a local SWAT team, including 30th Judicial Circuit, Pell City Smy6Lyu 42/6 :9P Page161 8:29PM 4/27/16 ASBmay16_Layout 1

THE Its FEATURE ARTICLES M Alabama Lawyer Alabama in the Rolein AY By Melvin I.Urofsky. Dissentthe and A Practical 2016 | VOLUME 77, NUMBER 3 NUMBER 77, 2016| VOLUME An Dialogue. New York: Pantheon Books, 2015 Concerns among American Attorneys Introduction Litigation: Multidistrict to Book Review: Alcohol Abuse and Mental Court’s HistoryNation’s andthe Constitutional Primer Reviewed by Allen The Practice and Procedure By By By Effective Counselor Fear of By Kelly By Annesley H.DeGaris Robert John Herbert on Protection from Abuse Law The 198 196 188 180 172 170 B. F. the Power of Dissent McTear Thornhill Beach Resort –Photo .alabar.org/about-the-bar/annual-meeting/. meeting and BeachResort–Baytowne Wharf. See this of Baytowne Wharf!earlier Joinlittle usa The On P. Bar! Mendenhall year, June22-25, at the Sandestin Golf AlabamaState Roth The courtesy of the Sandestin Golf and highlights inside andat Health Supreme Court: Cover Bar is backat the Village

https://www Executive Director’s Report COLUMNS The Legislative Wrap-Up flickr.com/AlabamaStateBar youtube.com/TheAlabamaStateBar @AlabamaStateBar @AlabamaStateBar facebook.com/AlabamaStateBar Disciplinary Notices Important Members,About General Counsel President’s Opinions Among Firms Among App YLS Memorials ellate 230 228 222 220 218 214 204 200 166 164 Update of Notices Page Corner the www.alabar.org

161

THE Alabama Lawyer Smy6Lyu 42/6 :9P Page162 8:29PM 4/27/16 ASBmay16_Layout 1 162 THE Alabama Lawyer rsmr ...... 207 Trustmark ...... 211 2AB, Inc. Professional ...... 203 OnBoard Search & Staffing ...... 159 Distinguished Neutrals National Academy of The LawPay...... 163 Judicial ...... 232 Insurance Specialists Inc...... 231 Freedom Court Reporting The J. Forrester DeBuys,III...... 187 Davis Direct...... 225 ...... 183 Cain & Associates Balch & Bingham...... 165 ...... 158 of the South Attorneys Insurance Mutual ...... 209 AlaServe, LLC ...... 169 ABA Retirement Funds ADVERTISERS May Locker Room...... 205 ...... 223 Finklea Group 2016 Gop...... 195 Group Arbiter Software Croain.....184 Corporation www.alabar.org FAX (334) 269-1515 •(800) 354-6154 Montgomery, AL 36104 415 Dexter Avenue ALABAMA STATE BAR eetoit...... Sherry Receptionist M. Paralegals/Investigators...... Carol Wright Client ...... Bonnie Mainor Disciplinary Clerk Complaints Intake Coordinator...... Kim E. Assistant General Counsel...... John B.Moody Assistant General Counsel...... Mark W. Assistant General Counsel...... Jeremy General Counsel...... J. Anthony McLain PROFESSIONAL FOR CENTER ALABAMA STATE BAR ...... Tracy Daniel Alabama Law Foundation, Inc. Director Alabama Lawyer Assistance Program ...... Linda Lund Volunteer Lawyers Program Director ...... Laura A. Calloway Director of Service Programs ...... Stephanie Oglesby Receptionist Graphic Arts Hall Director of Finance...... Merinda Director of C. Admissions...... Justin Aday ...... Angela Parks Director of Regulatory Programs Eric Director of Digital Communications...... J. Administrative M.Patterson Assistant Executive Director...... Edward ...... Diane Locke Director of Personnel andOperations ...... Keith B.Norman Executive Director STAFFALABAMA STATE BAR Alabama Center for Dispute Resolution GRAPHICDESIGN ADR Assistant...... Betzy Medaris ADR Assistant...... Betzy ...... Judith M.Keegan(334-269-0409) Director to Access ...... Deborah Harper Intake Specialists Director of Publications...... Margaret CommunicationsDigital Content Information Secretary to Secretary ALF Administrative ALAP Knight ALAP CaseManager...... Shannon ...... Robert B. (334-224-6920) Thornhill Director VLP Dunn Lawyer Referral Service Representative...... John SP Administrative ...... RoderickPalmer Building Superintendent ...... Kristi Neal Financial Assistant Senior Financial Skinner Assistant...... Gale Admissions Administrative RegulatoryPrograms Membership Director of ...... Mary Frances Garner and Projects Rittenour Executive Assistant...... Ann ASB The Security Administrative Administrative (334) 261-6310 Alabama Lawyer Assat...... KatherineL. Assistant Foundation Assistant/ Administrative Director/ JsieCodntr...... EmilyStrickland Justice Coordinator Information Fund Coordinator...... Laurie Blazer Fund Coordinator...... Laurie GnrlCusl...... Julie Lee General Counsel Assistants for External Relations Systems Manager...... O. Hunter Systems Manager...... O. Assat...... Doris McDaniel Assistant Assistant...... Cathy Sue McCurry Assistant...... Cathy Assat...... Kristi Skipper Assistant RESPONSIBILITYSTAFF Assat ...... Sharon McGuire Assistants

Dossett Assistant...... Sandra L. Technology...... Dolan Assat ...... Crystal Jones Assistants Mngr...... Kelley Lee Manager Carrie Black-Phillips Carrie The PRINTING Alabama Lawyer Marcia N.Daniel Sonia Robyn Bernier Vickers,III L. Carol Mott Anderson Sue McIntire Douglas Langley Murphy Church Harris Trout Jones Ellis 1 S. Keith ...... Vice President R. Cooper Shattuck, Tuscaloosa ...... Immediate Past President Richard J.R.Raleigh, Jr., Huntsville J. ColePortis, Lee Malatia ingham; Place No.2,MarkS. 4, M.Clay Martin, Huntsville •24 Huntsville; Place No.3,RebekahKeith McKinney, Huntsville; Place No. 37 Perry, • 29 Holt, Hays Webb, Tuscaloosa •7 cuit, derburg,City Pell Scottsboro •39 Loftin, ao .Tmkn,Briga • David G. Wirtes, Jr., Mobile Jason B. Tompkins, Birmingham ingham •Marc Starrett, A. T. • Katherine Montgomery tiel, McLaughlin, Guntersville •JamesIII, R.Moncus, RebeccaKeith McKinney, Huntsville •Jeffrey R. McGowan, Tuskegee • Sara • Cason Crosby Cheely,Daphne • Kira Mobile • Birmingham well, Melanie M. Atha, Birmingham •Marc J. Ayers, Birmingham •David Bag- A. Linda ...... ChairEditor and Gregory H.Hawley, Birmingham in articles in expressed conclusions and The Circuit, Brewton •22 L. Emily Circuit, Payne •10 Mobile; Place No.5,James Rebarchak, Mobile •14 bile; 1, C.Zackery Moore, Mobile; Place No.2,Frederick G.Helmsing, Mo- Bessemer Cutoff,L. J. Buck,Birmingham; PlaceErik No.9, ham; Place No.7, Allison AugustaS. Place No.4,Robert G.Methvin,Birmingham; Birmingham; Place No.5, No. 2,John Smyth, A. Vernon •25 20 • 16 Jeffery C.Duffey, Montgomery; Place No.6,David Martin, Montgomery Montgomery; Place No.4,C.Gibson Vance, Montgomery; Place No.5, Place Beaird, Jasper •15 Lawyer, P.O. Box4156,Montgomery, AL mailing 36104. Periodicals postage paid at Montgomery, Alabama andadditional the The Ashley Swink Fincher, Southlake, TX Dowdle Rasco,Huntsville •Monet McCorvey Gaines, Montgomery • Alicia Meredith Shay Peters, Andalusia •RebeccaG.DePalma, Birmingham • DiandraS. No. 1, Tazewell Chapman, Evergreen •36 P. Jason verne •3 No. 1, Allan Russell Garner,Selma gory M. Varner, Ashland •41 product or service offered. service or product advertisement. Copyright 2016. The carefully is copy State abama sarily Wilson Margaret imply necessarily not does herein publication but Counsel, BOArD OFFiCErs BOArD AT-LArgE BOArD mEmBErs st Robert Hgso ihl,Briga ...... Young Lawyers’ Hughston Nichols, Birmingham Section President th th Circuit, AlabamaState Alabama Lawyer Alabama Montgomery • Anil H.Copeland, Montgomery...... President Alabama Lawyer th th An od imnhm• Anne Ford, Birmingham Circuit, Circuit, Place No.1, Terri Olive Tompkins, Tuscaloosa; Place No.2,Robert Place No.3,Clay A. Lanham, Mobile; Place No.4,JuanC.Ortega, Birmingham • FairhopeBirmingham •Jennifer M.Bedsole, Florence •12 those of those No.2,LesPittman, B omn otoey...... Secretary B.Norman, Montgomery Circuit, Circuit, Demopolis •18 F. G lpo imnhm....Vice Chair and AssociateEditor G.Flippo, Birmingham PhenixCity Sharon Hindman Hester, Russellville •35 Glass, Birmingham •19 offices. Send addressto changes POSTMASTER: Knight, Cullman •33 F. COmmissiONErs BAr OF OF EDiTOrs Bennett, ChelseaKira • Hfae,Mngmr ....ChairEditor, and A. Huffaker, Montgomery rd W. Halron L. Debrosse, Birmingham •R.Cooper Shattuck, Tuscaloosa • th Circuit, Gen ucloa...... Vice Chair and Green, AssociateEditor Tuscaloosa Dowd,Birmingham; Place No.6, Teresa G.Minor,Birming- be furnished upon request.Advertising upon furnished be will Bar.rates Advertising th Roger Cliff R. Mendheim, Dothan •21 R.Chason,BayMinette; Place No.2,Sam Circuit,

nd Steven D. Adcock, Talladega •30 Donald R.Rhea,Gadsden•17 HenryL. the Circuit, Murphy, Liaison and Montgomery...... Staff Montgomery...... President-elect reviewed and must receive approval receive must and reviewed th Circuit, T. the of commissioners of boardofficers editors,or of Al- board Baggett, Decatur •9 Circuit, •31 Bar, 415Dexter Shepard, Huntsville; Place No.2,John A. Brinkley, Christina D.Crow, Union Springs •4 W. th th •27 PlaceLeslie No.1, 11 Kenneth Moore, Bessemer • is the official publication of publicationofficial the is Circuit, Circuit, J.Daryl Burt, Winfield Turner, Chatom •2 Pierce, Auburn •38 th 743-090)(USPS Birmingham; Place No.3,Barry A. Ragsdale, •5 st W. Fairhope • (Max) Cassady, Jr., A. Mujumdar,Phillips, BirminghamL. Sherrie • ManishPatel, H. Circuit, th Circuit, Donald BenMansell, Athens •40 Montgomery •M.Chad Tindol, Tuscaloosa • The Montgomery; Place No.3,Flynn Mozingo, th O.Skinner, Birmingham; Place No.8,Brannon th Circuit, Clint L. Clint Circuit, Powell, Birmingham • Allison th Circuit, Christy Circuit, Circuit, Place No.1,George R.Parker, Montgomery; Thad Yancey,Troy Alabama Lawyer Alabama Circuit, Circuit, William H.Broome, Anniston •8 st Amy Boardman, Chelsea; Place No.3, Anne rd Circuit, Scott L. Scott Circuit, Place No.1, William Randall May,Birm- Tom Circuit, Lee Circuit, th Y. AlabamaState Circuit, are herein th Avenue, Montgomery, Alabama M.Hampton, Alexander Charles G.Reynolds, Lanett •6 Fonteneau, Birmingham •Jeanne Circuit, Heflin,

th [email protected] is [email protected] R.Barineau, Birmingham; Place Circuit, Stephen Heninger, Birmingham • Andalusia •23 published sixtimes nd Robert Maze, Arab •28 36103-4156. th [email protected] Williams Circuit, [email protected] Audrey Oswalt Strawbridge, F. Circuit, Y. those of those Tuscumbia •32 th st •26 the right to right the reserves the Director of Publications Knowles, Geneva•34 Circuit, Circuit, Fneeu imnhm• Fonteneau, Birmingham Bar. rights All McPherson, Oneonta DanaJoGrimes,Ft. th Birmingham •Joi •13 from the OfficeGeneral of the from L. Circuit, th H.Lanier Brown,II, State Alabama th J.Levi Nichols, Lu- Circuit, Matthew C.Mitchell, Circuit, Circuit, Tommy Bowers, Clanton • th th the th Graham, Moulton • Circuit, Circuit, JamesEric Taylor Thomas Circuit, Lloyd Copeland, endorsement of any of endorsement W. rd O.Skinner,Birm- authors, not neces- not authors, th Erskine R.Fun- Circuit, Place Circuit, Circuit, The City th F. th Irby, 1983-2010 Circuit, Place Circuit, reserved. nd Circuit, ayear by Patrick James R. RalphE. Place No. Alabama Circuit, • Bar. Views Fairhope reject any reject WalterE. T. Coale, Jana th Mon- Gre- Cir- th th ASBmay16_Layout 1 4/27/16 8:29 PM Page 163

PAYME PROCESSI EXCLUSIVELY FORATTORNEYS.

Helpinglaw firms9 1et paid. 10 TAguidelines and he AB,,I, ::.of Profe!r.SlooolCooduc:1 require 01h:)lneysto ai:cept credil carch coneC'lly We guo,a a& complalleo seporctiOnof eornedond tlfleorned es,giv,ng you theconf1 enc:e and peace ol mltidthat ')'Otlf lron!ilClchonsme hoodledIfie r,ght way .

•• c: £:" .. J11111111mr:,,~• I j I LAW PAY www.LawPoy.com/ olabor I 866 .376.0950 CR DIT CARD PROCBSSING Smy6Lyu 42/6 :9P Page164 8:29PM 4/27/16 ASBmay16_Layout 1 164 THE Alabama Lawyer May 2016 Lee H. Lee Copeland provides anethicaland affordableway as billingandtrust accounting. LawPay handling ofcasefileinformation aswell which facilitate theorganization and moLex, MyCaseandRocketMatter) tice management systems (Clio, Cos- include four different cloud-basedprac- their practices.As that many lawyers have inoperating that fillneeds andservices products lawyersto less expensive for private practice with aneye toward iteasierand making benefit offerings, whichare selected does that isthrough ourvaried member our lawyer-members.ways Oneofthe to also oflawpractice to to not onlyitsobligation Benefits Member The The baroffers numerous discounted Alabama State Bartakesseriously lookoutfor thebestinterests of work smarter andnotharder. work smarter protect thepublic, but anexample, offerings PRESIDENT’S PAGE regulate the it Programto makesitdeadsimple law.practicing The dens ofrunningalaw office and house programs that caneasethebur- ofColumbia.states andtheDistrict terials, aswell asthoseoftheother49 fers Alabama materials andfederal ma- our free legalresearch whichof- service plete withoutamention ofCasemaker, bar’s member benefitswould becom- calLawyers.com). And norecital ofthe client developmentweb-based (Lo- (Corellegal software and andEasySoft) also discounts onshipping(UPS),other at services and offerto possible for even sololawyersto ment Funds memberbenefitmakesit employee benefitcosts. ABARetire- Our fulltime staffpositionandassociated that canfree from afirm take services a remote legalreceptionist andclient in- checks. Ruby Receptionists specializes in credit ordebitcards orelectronic to offer clients theoptionofpaying with In addition,thebarhasdeveloped in- reasonable prices. There are theirstaffmanaged401(k) Volunteer Lawyers getin enjoy

Photo courtesy of the Sandestin Golf and Beach Resort Smy6Lyu 42/6 :9P Page165 8:29PM 4/27/16 ASBmay16_Layout 1 this summer. there are several andassociations having meetings sections Sections to (smallandsolo),practices aswell asahostofothers. Ihope are and what ithasmeant insidethe Washington Beltway. There nation’s top lobbyists, cycle willdiscussthecurrent election House, whoisyear-in recognized andyear-out asoneofour shootingintheworkplace.active Another speaker, Mike to One ofthespeakerswilldiscusswhat have Baysidewe onJune22-25and Annual Meeting . benefits/ from thebar,to go ees are subject. often balance and thestressesto gram ment information. And, theAlabama LawyerPro- Assistance as well manage- asafreeofpractice statewide lendinglibrary ing questionsaboutavailable andotherresources, software AssistanceManagement Program provides a “hotline” for ask- with casesintheareas that ofpractice youThe select. to andforwarding legal services your proby bonohours seeyou thissummer! In This year’s annualmeetingwilltakeplace inSandestin, For panelsandspeakersonmediationbusiness andtrial to addition anumberofintriguingprograms andgreat speakers. staffstandsreadyto more information onalltheassistance availableto theAlabama State Bar’s annualmeeting, www.alabar.org/memberhips/member- pre-screening those seeking free thoseseeking pre-screening helpwithissuesrelatedto whichlawyers andtheiremploy- are particularly excited areto particularly you onlyclients whoqualify dowhenthere isan work-life Practice you

siteat with you. View ontheAlabama State thesections Bar’s web- ticeto and bers.As icesto large percentage oftheirpractice. Howto clients andthoseclientsand moderate-income makeupa Pricing Tool foundat that may tool beofsome help.pricing kit canbe This report Chicago BarFoundations Justice Entrepreneur Project hasa ways to such asLegalZoom andothers, itmore are difficult making competeby inthisspace and Sections are agreatSections way June 16-19(Destin) Alabama Defense Lawyers Association June 16-18(Destin) Alabama Association ofJustice June 9-11(Florence) Alabama Defense Criminal Lawyers Association June 3-4(Destin) &Commercial LawBankruptcy Section June 2-4(Destin) Family Law Section May Young Lawyers’ Section Finally, many for ofourmembersprovide low- services existed. Many barshave studiedthisissueandthe https://www.alabar.org 19-21(Orange Beach) thisgroup hasalways beenachallengefor ourmem- attorneys are painfullyrealizing, technology firms, www.chicagobarfoundation.org. network withfolks network whoshare acommon practice

to stay withyour connected prac- and consider joiningone. thesamerulesthat have al- “price” thoseserv- www.alabar.org L 165

THE Alabama Lawyer Smy6Lyu 42/6 :9P Page166 8:29PM 4/27/16 ASBmay16_Layout 1 166 THE Alabama Lawyer May 2016 [email protected] Keith B.Norman EXECUTIVE DIRECTOR’S REPORT we the responsesimpacted think herdeath would have significantly lated and concluded; however, Idonot was circu- thesurvey 19,2016after ary (“NCBA”). Sadly, Lee Harper diedFebru- by fall spiredby ingbird”). The in portrayed cus Finch asoriginally character tion ofAlabama lawyers abouttheAtti- published lastyear, changedthepercep- a to members Many Atticus IsStill Atticus for Watchman In January,we the North Carolina BarAssociation theNorth a similar survey conducted last conducted asimilarsurvey findoutifthenovel, To Kill aMockingbird Kill To (“Watchman”), whichwas idea of the survey was in- ideaofthesurvey to sent outasurvey Alabama Lawyers received. Go (“Mock- Set bar were erally fell into definablecategories. fairly ofAtticus.character The their “relationship” withthefictional trayal ofAtticus inWatchman question aboutwhetherornot thepor- mentary, especiallyinregardto generatedsurvey agreat dealofcom- Carolina. The leagues inNorth lawyers andtheresponses oftheircol- tween theresponses ofAlabama survey. There littledifference isvery be- to similar remarkably For The of the variety that ofthevariety example, mostofthecomments results of the Alabama survey are results oftheAlabama survey thoseoftheNCBA Watchman responses gen- changed Alabama the did Smy6Lyu 531 1:0A Page167 11:20AM 5/3/16 ASBmay16_Layout 1 Abraham Lincoln,to just life heroes likeFred Gray, Clarence Darrow and hero when thelegalfieldisreplete withreal while othersdismissedtheneed for afictional tioned why therewere ing thepersonalflaws ofherfather. Lastly, grown trayed in who saw himasahero, whileAtticus aspor- father through theeyes ofhisyoung daughter Mockingbird ofAtticus.portrayals They noted that the offered amore probingtwo analysis ofthe ofhisotherside.”“learned respondents Some ment, saying that theywishedhadnot the novel andexpressed theirdisappoint- tendto not read of thoseresponding indicated that theyhad plete” or “real” large person.Afairly segment ofAtticusportrayal madehima “more com- times. commented Some that an inspirational figure, amanof his butclearly still considered Atticusto ofAtticus.not changetheirperspective They daughter whowas capableofdiscern- Yet, doso. Watchman Watchman thoserespondents whoques- Watchman portrayal ofAtticusportrayal was that ofa therewere and that theydidnotin- was was nameafew. through theeyes ofa beagoodmanand even published, otherswhoread Watchman’s Not Profoundly: Somewhat: character...fictional your withthe relationship Watchman Finch in ofAtticusThe portrayal Disagree: Agree: as aprofession. to onyour bearing decision ofAtticusThe character Finch hadsome Too At I’ve Never: Peck asAtticus Finch?Gregory “To of Have you watched the1962film version Too No: Yes: youbefore graduated fromhighschool? youDid read leastonce: caught snippitsofit: much: manyto times manyto times 28.46 percent (142) 63.93 percent (319) starring KillaMockingbird” 3.22 percent (16) 30.77 percent (152) Go 69.23 percent (342) 66.91 percent (279) 27.10 percent (113) 6.00 percent (25) Set a Set changed 54.12 percent (269) To KillaMockingbird count: count: 4.63 percent (23) 38.03 percent (189) 7.62 percent (38) pursuelaw www.alabar.org 167

THE Alabama Lawyer Smy6Lyu 531 1:0A Page168 11:20AM 5/3/16 ASBmay16_Layout 1 168 THE Alabama Lawyer May (Continued Respondent #62writes: cus inMockingbird to cerningly 2016 The deserve recognition.deserve is they, character, notsome fictional who way. bama whosetthestandard inthis past andpresent, amongthebarinAla- we tainties if selvesto and ways we member as re- is alessonwhicheachofusshould he could have thiscomparison been.In as hepossiblywas andin son. Here isthesameman–in man warrant closestudyandcompari- Finch andtheidealized sum, boththerealistic have the man,Atticus Finch, whoeasilycould drawnclearly of lessoninthecharacter was the fray. The son for acommercialto publisher and politicalchange. There was littlerea- was should notbeoverlooked. the titlepageisnotmuchdiscussed, but to publishing house required inorderto to the 1950sandthat adifferent approach That her native landandtheneedfor change. thetroublesdescribe andinequitiesof (calling outfromto afarinManhattan) was frequented inwhichshe thecommunity the hypocrisyways andvile even, hated). perhaps Sheunderstood Lee Watchman more realistic manofhistimes, andthe Atticus Finch’s was was character story “…The followingtwo knew, understood, anddisliked(and, to publishedinatimeofracial unrest andreared. born Sheusedhervoice

takenanotherroad, butdidnot. In Watchman to shouldstrive deliver a story containing deliver a astory from page167) Watchman theapparent dichotomy ofAtti- story isthe world that Ms.story more pragmatic approach areto bridle ourfears bridle anduncer- craft ourown craft lives. We was and Watchman. EXECUTIVE DIRECTOR’S REPORT comments speakdis- lead. There are those, allow acommercial place itsnameon notpublishablein Atticus Finch isa beourbetter Watchman Mockingbird Mockingbird Mockingbird that often Watchman enter Atticus al- as It Over Age: 36.02% worthy: Atticus Finch isstill Other: Matlock: Perry Mason: Elle Woods: T. Judge Harry a iconto fictional If (179) better character would bettercharacter be: lawyers of the future need anew ofthefutureneed lawyers 60 32.39% 46-60 (161) 19.71 percent (94) Under 30 66.25 percent (316) 7.24% 6.29 percent (30) (36) 24.35% 30-45 (121) 2.73 percent (13) 3.77 percent (18) Stone: to turn Other: Female: Male: Gender: 1.26 percent (6) 65.52 percent (325) forinspiration, 0.81 percent (4) 33.67 percent (167) ? ASBmay16_Layout 1 4/27/16 8:29 PM Page 169

Respondent 110 notes: Atticus Finch now has a broader personal resume thanks to Watchman, his image in our mind’s eye should still inspire us Atticus in Go Set a Watchman was fairly representative as lawyers to make decisions that are in the furtherance of jus- of Alabama lawyers as I remember them in the 1940s tice and that protect the rights of our clients in spite of the (that’s as far back as I go). Though disappointingly typi- foibles of real or imagined heroes or those ourselves. L cal for that era, Atticus was not without decency. I believe Harper Lee (through the eyes of Scout) saw that decency in her real father and built upon it to create our beloved Atticus in Mockingbird. In Mockingbird, she let him finally be the true self she saw him to be–the self he Education Debt Update had dared not reveal in the prism of his time. I think Lee understood that had he done so, he would surely have Of those first-time examinees who been rendered unacceptable in the eyes of society and applied to sit for the February 2016 bar thereby jeopardized any chance to accomplish good examination, 66 percent had education within his profession. In Watchman, Scout was the voice debt. The average debt was $61,671. of hope. In Mockingbird, written after Lee had further distanced herself from her life in Monroeville both geo- graphically and in time, that hope came to fruition in At- ticus. We just read them in reverse order.

Regardless of one’s perspective of Mockingbird and Watch- man, Atticus Finch remains an iconic, fictional hero to many lawyers and certainly to those who are not lawyers. Although

The roadroad to retirementretirement is a journey.journey. Pick your herdher wisely.wisely.d

WhWhether you are just starting out, or

nearing the end of your careerr,, theth road

to a successful retirement takes long-term planning. Pick

a provider that has been helping law professionals prepare

e tirfor retirfor ement for over 50 years. The ABA RetirementRetirement

Funds PrProgramogram is that provider. Find out today how

we can help lead you on your journey to r ement.etirement.

Please visit the ABA Retirement Funds Booth at the upcoming Alabama State Bar Annual Convention for a free cost comparison >`Ê«>ÊiÛ>Õ>Ì°ÊÕiÊÓÓÓÈ]ÊÓä£ÈÊUÊ >ÞÌÜiÊ viÀiViÊÊ Ê Ê Ê Ê ÊÊ Ê Ê Contact an ABA RetirRetirementement iÌiÀ]Ê->ìÃÌÊvÊ>`Ê i>V Ê,iÃÀÌÊUÊ iÃÌ]ÊÊ Ê Ê Ê Ê ÊÊ Ê Funds ProgramProgram Regional RepresentativeRepresentative today.todayyy.. The ABA Retirement Funds Program is available through the Alabama State Bar as a member benefit. Please read the Program Annual Disclosure Document (April 2015), as supplemented (September 866.812.1510 2015), carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: [email protected]. etir.abarwww ement.com Securities offered through VVoyaoya Financial Partners, LLC (Member SIPC). VVoyaoya Financial Partners is a member of the VVoyaoya family of companies (“V(“Voya”). Voya”).oya”). VoyaVoya and the ABA Retirement Funds are separate, unaffiliated entities, and not responsible for one another’another’s other’’ss products [email protected] and services. CN1029-19104-1117 - 2015 Alabama Lawyer

THE

www.alabar.org 169 Smy6Lyu 42/6 :9P Page17 8:29PM 4/27/16 ASBmay16_Layout 1 170 THE Alabama Lawyer May 2016 sues. dissents are Most forgotten, but somebecome “canonical” or “prophetic.” practical alternativespractical andpoint outdifferent, possibly better, approachesto ples, dissents alsodiversify the optionsfor future judgesandjustices. Dissents provide some later moment canbecome prophesies, sodefined,by sents that reach beyondto theirmoment legal academy, notleast, thepublic.” andlast, butcertainly the executive branch, administrative agencies, state andlower federal the courts, to but highest courts tional dialogue,” aphrase that refersto notjust tered prophecies ofthe pastuponthecasesinwhichaxe willfall.” andinEngland, backfor extending country sixhundred years,” consisted of scat-“the is inourpoliticalsystem. Historically,way dissent isthe dissent [is]whollynecessary. Dissent isnolessarequirement inourlegalsystem thanit Justice Louis Brandeis, at Reviewed New York: PantheonBooks, 2015 By andtheNation’sHistory Constitutional Dialogue RoleintheCourt’s Its andtheSupremeDissent Court: tractable outcomestractable basedonrecorded history, tested andlived norms experience. Dis- gift may The tious.” of law as andnothingmore willdoinfact, preten-“[t]he prophecies ofwhat thecourts word choice ofthe Virginia Commonwealth University andtheauthorofacelebrated biography of By Among the epigraphs opening the book is a quotation from Irving Dilliard:Among theepigraphs openingthebookisaquotation from Irving “Judicial In MelvinI.Urofsky ordivinelyinspiredword. , Melvin I.Urofsky,, Melvin andtheSupreme Dissent Court aprofessor ofhistory emeritus have beenanatheist, didnotemploy theterm multiplying the possible applications and perceptions of particular rulesorprinci- multiplyingthepossibleapplications andperceptions ofparticular 4 Holmes opinedthat our oftreatises, ofreports, “body andofstatutes, inthis Power ofDissent by P. Allen

prophecy “discussions between andamongjurists, membersofCongress, 1 explores therole ofdissent intheshaping ofour “constitu- is striking inlight ofOliver is striking Wendell Holmes, Jr.’s definition to Herather meant theability Mendenhall BOOK REVIEW capture theprevailing ethos orattitude of caseshandeddownby prophecy a prophecy isfirstheard.” aprophecy theirfuture vindication. forecast orpredict 2 in thesenseofaspiritual 5 Holmes, who ournation’s pressing is- 6 Just as 3 The ASBmay16_Layout 1 4/27/16 8:29 PM Page 171

the several holdings of our highest courts combine to offer in- eventual change. Dissent, in a broader sense, is indispensable tegrated direction to judges and justices confronted with con- to democracy, ensuring that all views stand or fall on their crete problems in need of urgent resolution, so dissents, with merits rather than being suppressed or silenced by those who their persuasive appeals and less restrained rhetoric, serve as enjoy a disproportionate share of power or privilege. warnings and normative guides. “While contemporaries who agree with a dissent may pro- As just one example of the importance of dissenting opin- claim it prophetic and bound for glory,” Urofsky cautions, “for ions, Urofsky looks to Dred Scott v. Sandford (1857).7 Calling the most part we cannot tell at the time whether or not a dis- Chief Justice Roger B. Taney’s leading opinion “one of the worst sent will succeed in its call to future generations.”17 Only the he ever wrote,”8 Urofsky examines the import and impact of winnowing effects of time and experience will reveal a dissent’s the two dissents in Dred Scott, one authored by Justice John staying power, but Urofsky makes clear that judges and justices McLean and the other by Justice Benjamin Curtis. Justice Curtis who are passionate about their beliefs ought to dissent, lest considered his dissent so momentous that he forwarded a some future court lack grounds or reasoning for reversing copy of it to a Boston newspaper before the case was released. course. It’s up to posterity to act on the textual record, but it’s Urofsky suggests that Abraham Lincoln learned from these dis- up to present jurists to supply reasons for prospective action. L sents, which, he says, “played a key role in the political discourse of the 1858 and 1860 elections.”9 By shaping political Endnotes discourse for decades to come, Justice McLean’s and Justice 1. MELVIN UROFSKY, LOUIS D. BRANDEIS: A LIFE (2012). Curtis’s dissents “not only refuted … bad law and even worse 2. MELVIN UROFSKY, DISSENT AND THE SUPREME COURT 4 (2015). history; they pointed the way to what should be.”10 3. Id. at 3. Urofsky reminds us that our constitutional precedents would 4. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 461 not look as they do absent the contributions of dissenting (1897). justices. Without Justice John Marshall Harlan’s dissent in Plessy 5. Id. at 457. 11 v. Ferguson (1896), for example, we probably would not have 6. Urofsky at 7. 12 the landmark decision in Brown v. Board of Education (1954). 7. 60 U.S. 393 (1857). And without Justice Brandeis’s dissent in Olmstead v. United 8. Urofsky at 67. States (1928),13 the right to privacy would not be as expansive 9. Id. at 79. as it is today. Such cases demonstrate the value and merit of 10. Id. at 78. writing dissents. 11. 163 U.S. 537 (1896). Urofsky devotes considerable attention to the so-called 12. 347 U.S. 483 (1954). Great Dissenters: Justices Harlan, Holmes and Brandeis. His history does not stop there, though. He walks us through the 13. 277 U.S. 438 (1928). entire 20th century, pausing over important cases and justices 14. 481 U.S. 279 (1987). See Urofsky at 416-18. and indulging in literary flourishes and storytelling to enliven 15. 487 U.S. 654 (1988). See Urofsky at 418-21. his treatment of facts or issues that might otherwise bore a 16. 567 U.S. ___ (2012). See Urofsky at 421-23. casual reader unfamiliar with the law. When he deals with 17. Urofsky at 414-15. current judges and justices, he tries his own hand at proph- esy, speculating, for instance, about the lasting influence of Justice William Brennan’s dissent in McCleskey v. Kemp Allen P. Mendenhall 14 (1987), Justice Antonin Scalia’s dissent in Morrison v. Olson Allen P. Mendenhall is an assistant attorney (1988)15 and Justice Ruth Bader Ginsburg’s dissent (in part) in general in the State of Alabama Office of the At- NFIB v. Sebelius (2012).16 torney General. He earned his Ph.D. in English Those who work in the judiciary are often asked why judges from Auburn University. He authored the book and justices dissent if their views do not obtain as law. Dissent Literature and Liberty (2014) and has two books forthcoming: an edition of the essays of John and the Supreme Court is, in effect, a lengthy answer to that William Corrington and a study of Justice Holmes’s judicial question. The reason judges and justices dissent, in short, is to Alabama Lawyer

dissents. Views expressed here are his own and do not reflect keep the conversation going, to open the textual record to those of his employer. THE

www.alabar.org 171 ASBmay16_Layout 14/27/168:29PMPage172 172 THE A l a b a m a L a w y e r exists exists past (a The future May 2016 Protection

abusive sword to to abuse. punish protect actions, from (criminal the the Abuse abuser victim and prosecution) Order) the from for

shield their

Smy6Lyu 42/6 :9P Page17 8:29PM 4/27/16 ASBmay16_Layout 1 O their lifetimes. their cally in media tims largely unusedbyprivate attorneys representing vic- victims to stantial amendmentsin Introduction torneys beconfrontedwill with on the circumstances of thecrime. demeanor offense andafelonyin nal andcivil remedies. Domestic violenceis and could savelives. injury, further from thesevictims remedies available canbeinstrumental abused byaloved one. A quaintance, employee or potential clientis who Protection from Protection Statistics estimate Statistics Alabama law addresses domesticcrimi- violencewith sevenmenin despite the growing attentionto assaultedintimate byan andpublic discourse. from Protection Abuse Act n January 1,2016,amendmentsto Thesefollow changes of domesticthis violencein A on Primer Practical 2 Abuse Law the UnitedStates The oddsare substantial that most at- thatin one 2010. The basic understanding of the partner at some point onthe heels of sub- three women andone family a Alabama, depending 3 fear or harassment havebeenphysi- remedies available remediesCivil 1 the problem went section arestill in member, ac- protecting into bothmis- a Alabama’s By effect. being F. Kelly in in McTear granted, andupon ahearing, that perpetrator of that ofhave oneoflist qualifying a relationshipsthe with orders. They are availablevictims to Abuse Petitions Protection from to from Protection Abuse Order in currently would beinsufficientitself. by to areas work together future protectfrom thevictim from and theProtection shield(a Abuse Order) existsto to ists sword andshield. The andcivil avenuesbylikeningcriminal the them available. A under the from AlabamaProtection Abuse Act are also domestic abusewhere,in PFAs This article This aclientis who punish the abuser for their past abusive actions, are essentially narrowly-tailored restraining judge oncedescribed the interplay between effect andexamines situationsin from explains theProtection Abuse Act of domestic alsovictim a abuse. may be relief parte Ex crime. to prosecution) sword(criminal ex- provide awell-rounded response many cases,oneresponse abuse. Thus, the two (PFA) might beuseful relief, of crime alongwith www.alabar.org which a who to a 173

THE Alabama Lawyer Smy6Lyu 531 1:0A Page174 11:20AM 5/3/16 ASBmay16_Layout 1 174 THE Alabama Lawyer from practitioners in ferentpractitioners answersfrom “domestic violence”is also not sufficient. What conduct risesto lence asphysical assault certainlyis What file State otherwise incompetent PFAs. for abuse maypetition is victim the If Who may for petition aPFA? hearing the case. time a for or specific additional tween the two bodies of law. statutes standardize thedefinition from Abuse Act andthe domestic violencecriminal Act. The PFA charges, under therelief for but noteligible be thefor purpose of would of domestic beconsideredvictim a violence of previously differed thosefrom usedfor the purposes defendant. oflist statutorily-defineda relationshipswith article, filing abuse May While • • • Persons whohavebeenor fearvictims be theywill The • • For relief to relief For prosecution.It waspossible criminal that aperson onthevictim’s ing of the petition the of ing ship endednot of affectionate or sexual involvement over aperiod relationship characterized bythe expectation of Victim anddefendant hadadating relationship(a Victim anddefendant haveacommon child common law) or Victimis of the defendant andliveswith Victimis home whohadsucharelationship wasrelated(2) to tionate Victimwith lived 2016 of Alabama Department of Human Resources may PFA time will primarily will we isabuse? the prevailing perception of domestic vio- 2016amendmentsto 6 or sexual relationshipwith Act’s oflist qualifying relationships has andonacontinuing basis, which relation- from Protection for petition a Abuse. determined andspecified bythe judge defendant’s spouse(including spouseat the parent, child, stepparent or stepchild must begranted, haveoneofvictim a 4 domestic violencecriminal filing behalf, There is There more relief, spouse former living in the in another personliving defendant and(1) hadanaffec- 7 to file, to ) aquestion that may yielddif- focus oncompetent adults. than oneyear before thefil- may begrantedindefinitely, 5 of victim a for fee filing no but for the purposed of 8 another person or the both theProtection of defendant various fields, be not incorrect,is it “victim” defendant or the level of achild or the be- this of victim, if defendant hasothervictim, means of transportation. code. criminal the What committed crimes defines domesticterms violencein eliminate To prosecution, civilcriminal it law or social services. erty, tion, visitation and additional abovemay bemaderelief final the held onthemerits, victim’s leased bythethe parties, in otherwise encumber, propertymutually The as well asuseof personal effects andanautomobile. victim, shared residencethe canbeawarded solelyto ahearinguntil canbeheld. Temporary possession of a fendant andorder thevictim tody de- of thosethe children to children, the court canaward exparte temporary cus- employment or school.Ifthe parties havecommon victim’s more)(or the feetfrom away tim at order the defendant to victim acts of abuseor conductfurther that would causethe In petition. parte,initial basedonthe factsthe allegedin tion peti- grantedinitial must besupportedthe byfactsin victims coercion andstalking.ing,criminal calledcrimes trespass, andwhat couldcriminal best and be theft onment, aswell aspropertycrimes like crimes at mestic listing full outlined above,constitutes domestic violence. The the Code fendant Once the defendant hasbeenserved andahearing Any or all of the following may begrantedrelief ex Both andfinal exparterelief additionto Ala. defendant hasoneof the qualifying relationships court canorder the defendant not or presented at attorney’s fees and possession of avehicle for the evicting the defendant all. §13A-11-8 (1975), against someonewith Code PFA violence for the purposes of a of domestic violencein relief isavailable viaaPFA? to refrain from interfering with interfering from refrain to committed afraid be arrangements andchild support determina- from Protection confusion,the Abuse Act The of predicatecrimes assault, kidnapping andunlawful §30-5-2(1) (1975) andinclude physical of ordering the defendant defendant may beorderedto relief is relief intimidation like intimidation victim, with againstvictim, a 9 of further abuse,ajudge may also harassment, asdefinedin contactingfrom the vic- refrain to trial. example,For afinding that ade- availableto jointly-leasedfrom prop- that may constitute do- are availablerelief to aPFA. relief Any harassment, menac- a of predicate suchasarson, victim, absence. to refrain from refrain to home, place of to that custody ownedor dispose of, or referencesto are codified stay 300 including 11 Ala. impris- whom 10 12 Smy6Lyu 42/6 :9P Page175 8:29PM 4/27/16 ASBmay16_Layout 1 business daysof three within expartefor relief lined in does not changecurrent procedure one. The PFA may both exparte andfinal PFAs, but additional pages The trative Procedural Considerations ProcedureCivil . Abuse casesare governed by the Alabama Rules of thefrom from considerations mentioned,Protection tion hearing onthemerits defendant. within Courts’ Alabama Administrative PFAs and judges. The varies among the various courts drafting its doubtto as sions. A enforcementform of their provi- enforcement andencourages uni- ble the throughout the state ensures that Having all PFAs look the same quirement is,in to any responsive pleadingto matter. is There order without aspeedyopportunityto fendant grant of tage of the safety provided bya canquicklyvictim take advan- the ing is cases The Forms The that respect. The beheard. to law assuchwhenpresentedto orders are instantly recogniza- process ensures not only that statute requires thatin beused theform at the defendant’s request is beattachedif special requiresruling a from the canbedownloadedfrom procedure for obtaining a standard of proof for Office of Courts for both petitions andorders. 10daysof service onthe intendedto e-forms is preponderance of the evidence relief, practice for other orders orderform leaveslittle are created andpromulgated bythe Adminis- newly amended statute not encumbered bythelimitations 18 This purpose, whereas but also that ade- norequirement that the defendant large part, asafety consideration. page. current filing 20 expedited hear- beanexpedited procedure out- of the peti- 14 onpetitions 16 forms for forms Office of and a relief is relief begranted anopportunity from Protection Abuse 17 or 15 ordered. process ensures not only a of the safety provided by beheard onthe quickly take advantage order without aspeedy This that the 19 that a grant of relief, but also is the limitations the heard onthe matter. and apart not encumbered by opportunityto 13 issuing of an expedited hearing This re- This defendant file victim share of the nation’s almost 13,000homicides were ices Division data shows that paper.” The PFA and law enforcement, that a is often to PFA for not believestop,petition will a abuse ing, andyour client the is ployee)from qualifies forProtection a Abuse Order,it My Is aPFA for Right not necessarily the best course of action for every If abusive or threatening acts are recent andongo- Even youthinkif that your client (or offer some recourse.It must benoted here,it as order of an be byjudges, attorneys, social service providers Client? is can issued thanifthings continue asthey are. FBI’s Serv- JusticeInformation Criminal trial. to threat of maining best choice for resolving anyre- the safely relocate andcut ongoing? conduct is has agreater fear of this In first. is nario wise occurred. This where onewould not haveother- abuser andencourage anattack PFA an exparte period of acts of abusehaveoccurred for a cantly weakened.Second,ifno signifi- protectionis abuse from likely, is abuse for petition the violence or doesnot believefuture to rises that articulating time orders. counsel tions client/victim. primary Three is afraid is If your client hasbeenableto PFA proving the casefor a thedangerous PFA abuser, a 21 should beapart of your legal If your clientdifficult hasa almost the inverse of the to issues.First, future of the abuser anddoes time, in your client about these the level of domestic situation, the client 2010,asignificant is being servedwith harm “just apiece of could anger an recent conduct might not bethe friend or em- or friend secondsce- future is important is proving a ties with ties www.alabar.org is likely is if abuse ques- at 175

THE Alabama Lawyer Smy6Lyu 42/6 :9P Page176 8:29PM 4/27/16 ASBmay16_Layout 1 176 THE Alabama Lawyer nal prosecution that mayin be is this the either personally or via counsel, question the client at have the opportunityto and their fear for thefuture in testify to the desireto their theclientDoes wantto may PFA, to ficient circumstances, andgiven that the client’s facts are suf- legal action (divorce or custody, for instance).In has threatened harm availablein necessary or your client that mayrelief need matters. threats and the client mayto choose PFA ever again.In to any need quicklyeliminate aspossible,to clients tact between the parties, andmany provides anopportunity for con- first. matters cumbersome andlonger-term) more pursue these(typically might coming between the parties, you tional legalforth- actionbe will is necessary? be action Will subsequent legal victim. lationshipthe with committed sonal safety strategies andplans. assistancefor with formation of domestic violence shouldin- also beprovidedwith many situations, they donot guarantee safety. Victims May “no,”andyouanticipate addi- While On the other hand,other legal action may not be If the answer hearing. The details of the process, that becalled theywill upon may only prolong the client’s healing process, beappropriate. 2016 eitheror concurrentlyitself by with entirely an want all or abuseresume over the course of the other many clients mayinitially meet the statutory requirements,filing about shelters andsocial service providers byapersonwith court about specific occurrences of abuse aPFA.It may bethe casethat the abuser encounter their abuser Every legal those situations, a pursue aPFA,to important is it questionfirst the to matters client should also understand that separatecrimi- proceeding any from creatingimplementing and if the client pursues aparticular resolved as bepresent at the hearing and, matter 22 andthat their abuser or familial a While wait progress. pursueaPFA? to file to PFAs are helpful seem adamant evaluating theviability An PFA a other suits, client intimate re- intimate utility of a of utility and discussionwith openandthorough is for explain per- only onlyif a those will is in anyclient. in essential the abusebystandingfrom order of protection for tions some court circuits, judges typicallydistrict hear peti- that or asastand-alone pendingmatter matter. In Divorce be impacted byaPFA. casescanallcustody impact actionscriminal and or to married andabuser,victim particularly may Legal Issues Other with Interaction PFA tential simply used uating the case,they are not exhaustive, andshould be in haps in testifying the of fear beemotionallymight overwhelming. The trauma not cases andPFAs. court (or domestic relations) judges hear both divorce in When adivorceis As mentioned previously, additional legal action Once the details are explained, aclient may decide the pending case or asastand-alone action may be presiding circuit court judge. to benecessaryto pursue aPFA. The PFA createdrelive byhavingto additionto the to abuser may besocrippling that the idea of or haschildrenwith case. the abuser’s presence causesanxiety, per- asaguideto

24 Your decision about whether anxiety that already exists at the these questions are helpful a of evaluating theviability sionwith merits sue aPFA, beyondthesimple ations influence adecisionto domestic violence, many consider- protection.for Forof thevictim move onmay outweigh the desire to victim in another legaltime actionmore and in trauma thought of talking about personal PFA pending, a resolve the issues between the An openandthorough discus- court may betoo much for a PFA prospect of additional effective evaluation of apo- of the case. for anyclient. While handle. The the client public. The victim is whenthevictim the abuser. Divorces, 23 violent experiences In filed in filed canbe others,family is desireto essential addition of victim’s utility and in to file to eval- pur- to Smy6Lyu 42/6 :9P Page177 8:29PM 4/27/16 ASBmay16_Layout 1 fled to fled where oneof the parties lives, has where thevictim or speciallysitting courtcourt (evenifcasesarejudge hearddistrict bya is venue influence your choice of venuefor the case. Typically, cases canhaveononeanother. you andthe client quent the existing custodywith caseandallows a judgefamiliar grantedin This is ter Venueis to prior tody andchild support casesmayinitiated havebeen Whether via adivorce or not bethe solelitigation in available relief Custody/Child support to title as grounds for divorce. such aswhether youhavealleged cruelty or violence Other considerations may also affect your decision, governedto modification todyin granted thereinrelief in the PFA using the issuance of a determination,initial andyouare not prohibitedfrom in to the likely custodywill reasons that PFA proper division of the parties’ assets. Additionally, the vorce (or legal separation) may benecessary for filing ex parte order, for further action andfinal hearing. betransferredwill to or hasbeendeterminedin volving custody, child support or A between the pending parties custodymatter may While The the divorceis onepartyin broaderto case divorcetrial, statute only provides “temporary custody.” For allows the opportunity for the temporaryrelief pending between the parties. may occur to PFA real property, escapeabuseor where the abuseoccurred. the divorcetrial. PFA the request for a temporary custody andchild support are it is important for afinal orderimportant being entered,is it proper also proper anexparte order statute prohibitstransferring bediscussedwill below, this some extent bythese local practices. of custody, child support or the PFA. The in notmodification a if it hasbeenpreviouslyif even given in aPFA,a that likely is it to the circuit or domestic relations circuit court judge) re-litigated be make afurther determination or matter in- anyof those courts,matter if a in 25 implications the beaware of theimplications that court uponissuance of an in so anycourt involving those issues. in anyother court, the case arguing your casefor cus- the caseof spouses,adi- astand-alone case,cus- orto the abusegivingrise to determination of custody or mayfiled be become apart of the in visitation is visitation during the course of 27 of custody, but an which acivil Though theinitial in or visitation the county means that PFA altering subse- pending will mat- 26 28 outside thefamily may PFAs shipswith relation- intimate with frequently soughtvictims by additionto prosecutionstance oftenin criminal have Violence Law Domestic Criminal And Enforcement ofPFAs client. in fluential in arise may other actions for conversion, fraud, bankruptcy, etc. against anadult-child/stepchild/abuser,parent/victim a Act allowof for thefiling Civil LegalOther Considerations should beprepared for that possibility. child limited, confusionin in should planto PFA final PFA, tainedin informed judge hear all aspects of the case.Clients should be the to likely are subsequent custodylitigation ofIn venue. future for tential time the at filed and potential for further abuse. ing cation law.It also prevents the possibility of conflict- hearingfull upon under applicable custody or Victims To When nocustody or child support action hasbeen timely a same judge,itmay benefit your client ordersin influence or beinfluenced bycivil legal cases the extent that the 2016amendmentsthe to support proceedings post-PFA, andclients or until asubsequent determinationis in non-intimate enteredin BecausePFAs havebeen, for sometime, custody or formal the defendant couldinitiate PFA a that custody andchild support orders con- is limited in limited is of domestic violence seeking legal assis- theiris abusers,it fashion,to pursuing civil legal remedies.in Changes determining the outcomein Interaction with Interaction jurisdiction a PFA which the granting of a orders. Evenifafinal the separateeliminating cases, complete subsequent custodylitigation are only valid for the duration of the of casesmay also influence your choice law arena. filing ensure that there are nogapsor durationto petition a PFA where the PFA unclear just howmuch partner relationships byanadult- two years, clients for aPFA, the po- PFA favor of the is may bein- andany progressin to beheard by not www.alabar.org made.a If confusion havethat modifi- time- most PFA 177

THE Alabama Lawyer Smy6Lyu 531 1:0A Page178 11:20AM 5/3/16 ASBmay16_Layout 1 178 THE Alabama Lawyer punishable asaClass A in is the PFA pursue a have. Indeed,in fully more and circumstancescivil that create opportunities for abuse victim-centered porary custody.this In of the defendant such aspossession of personal court yond those thecriminal There status of her protection andcanplan accordingly. tain. fit of being effectiveindefinitely prohibit the defendant’s conduct. A further to court lacksjurisdiction tence, thecriminal terms the all Once adefendantfulfilled has tion effect onlyin trial, the until safety for thevictim. Incarceration of the abuser obviously creates some tions safety prior with lence casesprovidevictim a has notice of lation sole redress for remediescivil where acontempt safetytheir concerns. Additionally,in convictionto criminal a of about theability ety to barriers abuse and law time both domestic civilcriminal violence and law over committed of imprisonmentterm is mum crime requiredthe if sentencingminimums, olencein nally, in most civil matters, remedycivil formost redressin to helps guard against anabuser using the court system onlythis does May PFA Once adefendant hasbeengiven notice that a domesticOften, conditions vio-criminal ofin bond further abusehisvictim. abuser. of solutionsto that adequately addresses the various causesof only solong asthe offender effect, asubsequent violation of that order The havesought 2016 of probationthis may alsoin beused commission of asubsequent act of domestic vi- of anex are also remedies availablein victim, PFA violation of a PFA andno to the trial in trial the to amisdemeanoritself offense.is it, in lieu in give somethe teethto parte resolvemay the concerns thevictim failure to follow to failure approachto mayto choose somevictim cases,a ajointly-leasedfrom hometem- and thus, hassome awareness of the to remedy concerns clients may have create abodyof complementary of or final PFA, oncethe defendant escapingit. However, conditions of bondare PFA way, a calling for double themini- chargescriminal filing against is in is misdemeanor offense. criminal matter, criminal a Where contempt andconditions of proba- effect. triggers protection, address many is items empoweredto acourt’s order, avio- is petition or until adate cer- PFAs provide avari- some measure of cantakemore a onprobation. 30 PFA PFA a enhanced PFA or acar, eviction contrast hasthe bene- contempt pe- may bethe Act,it also manner. that gobe- of the sen- andcondi- address is the is to 31 grant, is 29 Not other Fi- felony) andtwo years for domestic violence 2 3 tary cient neither saryto argument ontheultimate past,to hasattemptedvictim to the that pattern these convictions should beuseful duct alleged beyondareasonable doubt, proof of defendant hasalready beenfoundguilty PFA case for past abuseat the domesticfor violence canbehelpful lence 3 tences doubling. in gree (Class Bfelony). PFA code and victims. together 10 years for domestic violence 1 mestic charge andviolation of aprotection order. Felony do- chargedwith violates that PFA.In in jail. in days of aPFA,is sentence theminimum mits the crime the mits lence, asdefinedin be conduct which risesto often. not createto avenues that simple a violatingof for theterms chargescriminal file Being ableto against the abuser life, the the out thevictim’s to attempts must wait long periods of time require titions complimentary rd While anevidentiaryFrom standpoint, prior convictions terms of a Conduct which violatesof theterms PFA violation of a abuser onthevictim’s mind abuser.In PFA degree) while a is pr completely disregarding the purpose of aPFA. to intendedto PFA ovisions of the violence convictionsterms carryminimum andstraightforwardto way prevent further abuse. penaltiescriminal nor civil of past abuseandlend weight rd noavail. Both arguments support thevictim’s stop the defendant’s behavior, the complimen- The there are some casesof abusesosevere that to degree (Class A provide asatisfactory resolution for many 34 2016amendmentsto both the appropriate domestic violence short, civil contempt proceedings keep Act’s definitions sections of domestic violence(in nature byusing substantially consistent 33 help her cut If anabuser victims often andpreparationvictims and the statutes, but suchcases,defendants may be results in results bring them 32 is in is Commission of thesecrimes misdemeanor) PFA issue: that a the level of domestic vio- time codework Actcriminal and PFA endthe relationshipwith effect,certainly almost it hearing. Becausethe ties with ties commits sen- thoseminimum for ahearing, dragging in the stop thein abuse in the victim’s the in and a gives thevictim st in both thecriminal besuffi-will relief degree (Class A enforce anorder in amandatory 30 contact if anabuser com- in establishing a to proving the 35 the 1 her abuser, domestic vio- in violation in arguments PFA of the con- facilitate is more neces- may not st , 2 nd de- nd that of or Smy6Lyu 531 1:0A Page179 11:20AM 5/3/16 ASBmay16_Layout 1 if enacted, would make additional changes, mostly Endnotes Conclusion law. lawcriminal and civil sion over the differences between domestic violencein and civil attorneyseliminate and hopefully promote cooperation between prosecutors terminology technical,to in eliminating to curity legalcivil), involvementsand (criminal stances, including thevictim’s into success, justin it does as being represented byanattorney increases oddsfor petitionsform andstraightforward statutory language, signedto themselves assurvivors. Though the processis relative in lives their lish that suingrelief domestic violencein from tection Abuse orders haveprovidedvictims victims, abuse, alongwith from protection for filing processes associatedwith a for tion should recognize that deciding whether 10. 9. 8. 7. 6. 5. 4. Centers Control for Disease andPrevention National Center Prevention for Injury andCon- 2. 3. 1. Since the time the At Practitioners By understanding the legal considerations and the Alabama Houseof Representatives (HB458) that, Ala. Code Ala. Code 2016-148 ofthe2016RegularSess.). Ala.Code See Ala. Code Ala. Code Ala. Code Ala. Code Ala. Code at 2011, trol,, November Intimate National Partner andSexual Violence Report 2010Summary Survey Ala. Code totality of the victim’s the of consideration thetotality circum- all, and,above p.43. their present-day codificationin §13A-6-130 practitioners cancontributein (West, §30-5-7(a)(1) (West, Westlaw throughAct §30-5-2(2) (West, Westlaw throughAct §30-5-2(3) (West, Westlaw throughAct §30-5-2(7) (West, Westlaw throughAct (West, §30-5-5(a) (West, Westlaw throughAct §30-5-7 (West, Westlaw throughAct §30-5-1 etseq. bepro PFA §30-5-2(7) andAla.Code in this article. the statutesthis discussedin whenaddressing these issues. will This of publication, hadbeenintroducedbill a domestic violencein is should beaware of et seq. helpwill them escapeabuse,reestab- se multi-faceted a (West, (West, Westlaw throughAct basic awareness of local resources for (West, (West, Westlaw throughAct litigant-friendly,its with Alabamawith safety. (West, §13A-6-139.1(3) (West, Westlaw throughAct safetyre-identify and anyother legal 2016-148ofthe2016RegularSess.). emotional state, other 2016-148ofthe2016RegularSess.). 2016-148ofthe2016 RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). inquiry that takes long-standing confu- 2016-148ofthe2016 RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). our communities. this anavenuefor pur- significant ways remedy and to file to financial se- 1981, matter. useof apeti- 36 de- Pro- of L services center for victims of domestic violencein the Services Alabama. Prof. McTear wasafounding on-site partner at representing victims of domestic violencein on Domestic Violence andpreviously worked asacivil attorney Prof. Kelly 36. 35. 33. 32. 31. 30. 29. 28. 27. 26. 25. 24. 23. Federal Bureau ofInvestigation, Table Data ExpandedHomicide 10:Murder Circumstancesby 22. 21. 20. 19. 18. Aform for thisrequest alsobefound can onAOC’s site,at e-forms 17. 16. 15. 14. 13. 12. 11. 34. Brooks-Sellers OnePlace Family Justice Center, aco-located See of the2016RegularSess.). Ala.CodeSee Ala.Code See the 2016RegularSess.). Ala.Code See Ala. Code Ala. Code Act Ala.Code See Ala. Code Ala. Code Id. Ala. Code Ala. Code Id. Ala. Code . u.s/2010/crime-in-the-u.s.-2010/tables/10shrtbl10.xls Relationship by abuse (requiring swornto petitions Ala.Code See Ala. Code Id Ala. Code note 14. Ala. Code Ala. Code http://eforms.alacourt.gov/Civil%20Forms/Forms/AllItems.aspx. Ala. Code Ala. Code Ala. Code . McTearis 2016-148ofthe2016RegularSess.). Acts F. No. 1981, thedefendant). (West, §13A-5-6 (a)(West, Westlaw throughAct §13A-6-142(a) (West, Westlaw throughAct §13A-6-142 (West, Westlaw throughAct §30-5-3(d) (West, Westlaw throughAct §30-5-(c)(3) (West, Westlaw throughAct §30-5-7(e) (West, Westlaw throughAct §30-5-2(2) (West, Westlaw throughAct §30-5-11 (West, Westlaw throughAct §30-5-6(a) (West, Westlaw throughAct §30-5-6(b) (West, Westlaw throughAct §30-5-6 (West, Westlaw throughAct §30-5-8(b) (West, Westlaw throughAct §30-5-7(c) (West, Westlaw throughAct (West, §30-5-7(b) (West, Westlaw throughAct McTear vial thttps://www.fbi.gov/about-us/cjis/ucr/crime-in-the- (2010), available at (West, §13A-6-132(b) (West, Westlaw throughAct §30-5-2 andAla.Code §13A-6-131(b)(West, §13A-6-130(b) and§13A-6-131(b)(West, Westlaw throughAct §13A-6-130(b), §13A-6-131(b)and§13A-6-132(b)(West, Westlaw through §30-5-5(c) (West, Westlaw throughAct and secretary of the Montgomery Bar Foundation. gomery County Bar Association Women’s Section lence Clinic. Sheservesaspresident of the Mont- Jones School of Law anddirector of fessor of law at Faulkner University Thomas Goode Kelly amemberof the Montgomery County Task Force 81-46,p.26 etseq. Forehand McTear allege “that theplaintiffof genuinelyfears subsequent acts §13A-6-139.1 (West, Westlaw throughAct (1981). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). 2016-148ofthe2016RegularSess.). is 2016-148ofthe2016RegularSess.), 2016-148ofthe2016RegularSess.). anassociate clinical pro- 2016-148ofthe2016RegularSess.). civil matters at Legal theweb address inEnd- Montgomery. its Family its www.alabar.org 2016-148of 2016-148 Vio- 179

THE Alabama Lawyer Smy6Lyu 42/6 :P Page18 8:PM 4/27/16 ASBmay16_Layout 1 180 THE Alabama Lawyer May 2016 ASBmay16_Layout 1 5/3/16 11:21 AM Page 181

An Introduction to Multidistrict Litigation: Practice and Procedure By Annesley H. DeGaris

In the “world of multidistrict litigation,” something typically oc- Introduction curs that jump-starts the litigation. Multidistrict litigation (“MDL”) This can range from the discovery represents a staggering amount of of a previously undisclosed side the litigation currently pending in effect of a pharmaceutical drug to federal courts. However, many the recall of a defective im- lawyers who do not regularly handle plantable medical device. Some- mass tort cases can be confused and times an article in a medical frustrated by the MDL process as journal or a warning letter from their individually filed case is swept the FDA triggers the beginning of up into a “consolidated proceeding” multiple case filings. Regardless and transferred far away from the of the catalyst, what often happens district in which it was originally next is a motion to transfer that is filed. Here, court-appointed leader- filed (most often by plaintiffs’ ship, tasked with performing discov- counsel, but sometimes by defense ery and briefing common issues, counsel) with the Judicial Panel on handles the plaintiffs’ side of the Multidistrict Litigation. In this case. This common issue litigation pleading, a request is made to send sometimes leads to a bellwether trial all cases involving “common or, more often, a group settlement; questions of fact” to a particular

less often does it lead to a remand of judicial district for the coordina- Alabama Lawyer individual cases. tion of all “pretrial proceedings.” THE

www.alabar.org 181 Smy6Lyu 42/6 : P Page182 PM 8: 4/27/16 ASBmay16_Layout 1 182 THE Alabama Lawyer litigation involving MDL issubstantial. attorney becoming to devicesmedical May With multidistrict from automotive airplane crashes, pharmaceuticals train wrecks and 2016 product liability,product likelihood ofan involved inan cases rangingcases and defective various class actions, the actions, defective the involvedin torney intendingto provides basicinformation, in understandingfor andparticipating provide lawyerswith process. article This cluding the intricacies of the MDL actionscivil under section 1407,in- the purpose of “transferorimportant. court”is to tion ing this For involvedin likelihood of anattorney becoming wrecks andvarious class actions, the tive volving casesranging automo-from of suchactions.” mote parties beforwill the convenience of the that transfers for suchproceedings this litigation tidistrict made bythe judicial panelmul- on proceedings. Such transfers shall be dinated or consolidatedpretrial to transferred ferent questions of factdif- are pendingin volving oneor vides that “whencivil actions in- U.S.C. Section 1407(a) which pro- ical devicesto pharmaceuticals anddefective med- MDL Within- litigation multidistrict Authority Rules of Procedure of the United procedures for the transfer of of the MDL incep- processfrom its determination section its upon product the just andefficient conduct districts, settlement orthe remand to andwitnessespro-will and reason, abasic understand- litigation. litigation. article this While this article is to is article this anMDL should consult anMDL for transfer is transfer for liability, for coor-district any airplane crashes,train more suchactions may be authorized by besignificantly attempts to alsoattempts is defective common basic guidance substantial. under 28 examine anyat- The Multidistrict Litigation Multidistrict Litigation States authority to authority stage, not pretrial the simplify to is However, the function of the panel cretionary decision-making power. trial. tion. the the two hearings around the country. No ington, DC,but holdsbi-monthly The Chief Justice of the United States. courttrict judges appointed bythe made upof sevencircuit anddis- these proceedings. The “transferee court”) if so,selectsand the judge(the proceedingscoordinatedpretrial to transferred in mines Litigation trict Court Judge District UnitedStates mary tions Litigation Multidistrict Panel on Judicial various federal The issues presented bythelitiga- samecircuit. judges onthe panel arefrom MDL panel’s officein is The However,terminate may it bymotionsto judgments or settlements. Judicial Panel for Multidis- Judicial PanelMultidistrict on whether civil actions pending panel doesnot havethe andthe Judicial Panel for conduct adispositive casemanagement at onefederal (“JPML”) deter- The districts to dismiss, sum- panel hasdis- to preside over website. panel adjudicate district for district should be Wash- is ac- Smy6Lyu 42/6 : P Page18 PM 8: 4/27/16 ASBmay16_Layout 1 inconvenience,from added expense transfer nesses. Oneof the purposes of convenience of the partieswit- and judgeto availability the that considered. factor important An needless complication alsowill be conflicting to tial nature of the questions. The shared questions of fact andthe cases involved, the number of panel bejustwill andefficient. fer The eredin actions. Manyfactors are consid- just andefficient conduct of the not sufficient. tested andfactual. Legal issues are The than onequestion of common fact. ria crite- proceedingsthree if pretrial transferee for consolidateddistrict Of The Criteria for member of the panel. of District Alabama serves asa R. David Proctor Third, Second, transfer must advance First, Cases may betransferredto are satisfied. is issues mustmaterial, be examinewill the number of anMDL avoid duplicative discovery, also takeninto determining whether trans- the casesmust sharemore is to is transfer must serve the handle the cases. Creation rulings, unjust delay or protect the parties of the transferee thefrom Northern account poten- con- a is Filing Case Management/ completetraining a andmustform torneyregistration must complete andsubmit the at- in tive court aswelldistrict aspaid andac- to mitted a the theand passwordfrom website of tain representing attorney must litigation multidistrict tion to Details Begins–the How Litigation. pending cases. that chooses but usually selectsdistrict a to litigation the panel hasthe authorityto ferring such asforum shopping, for trans- of themotives, partiesulterior have alsorule handle the actions. The mine witnesses are consideredto and the residences of parties and graphical location of pending cases and loss of forum choice. The filing The anMDL beginsfiling by Judicial PanelMultidistrict on is aJPML-issued CM/ECF login To for centralization. the most convenient process of both convenient andhas system. Only one attorney his or her federal licensure, their action.Ultimately, the ID, anattorney must bead- out the possibility that any practicein To anMDL qualify to register for register to qualify district it district any transferring course onthe Electronic anyfederal motion, the panel must transfer file district to district ob- first deter- amo- cases a geo- Case judge assignedto each civil action number andthe court anddivision of eachaction, names of eachparty, thedistrict of actions which includes thefull attachmentfirst The with filed are ments and consolidate. Several attach- to serves asthemotion of Related Actions. This document MDL number for file may I I I I I I I I I I I I I I I Contact:Engineer HalK.Cain,Principal inspection work for Commercial buildings, fter registration is registration After CONSTRUCTION & Cain and AssociatesEngineers Forensic engineering andinvestigative engineering Forensic plaintiff. each [email protected] • Radio & Television& Towers Radio StandardEngineering issues ofCare Ponds Retention Flooding & problemsRoofing Assessments Explosion & Fire Air Problems Piping & Plumbing issues Electrical Toxic Sheetrock Drywall & EIFS & Stucco EvaluationsSinkhole Foundations, settlement issues Structural defectsConstruction delayConstruction damages Residential, ENGINEERING Conditioning Systems Conditioning 251.689.8975 • 251.473.7781 asarepresenting attorney EXPERTS to filed is filed be & is Industrial facilities. Industrial assigned. The eachaction. The the notice. Constructors, Inc. Constructors, & is complete, an aschedule www.alabar.org the Notice transfer document first 183

THE Alabama Lawyer Smy6Lyu 42/6 : P Page184 PM 8: 4/27/16 ASBmay16_Layout 1 184 THE Alabama Lawyer the party. the made at the last knownaddress of is sented byeachattorney.If aparty served, aswell asthe party repre- address ofemail eachattorney clude the name, street address and affectedin- bythe motion.must It court thatofdistrict may each be ing should beproof of service indicat- trict. by action number andthen cending orderdistrict by cases should begroupedin May unrepresented, service should be POB www.SupportMasterSoftware.com CS-41, CS-42, CS-43, andCS-47 service of papers onthe clerk Master™ Support Alabama [email protected] Includes Interest and Arrearage The 2016 Professional SUPPORTCHILD prints forms Preparesprints and 716Mount Vernon,IN 47620 Uses Current Guidelines CALCULATION secondattachment The SOFTWARE Corporation FREE DEMO 812-781-1422 For Alabama Since Calculator complaint and 1989 within Software eachdis- as- tive efficiency andavoidance of duplica- parties would serve the convenience of the the question of more is there that ing meet the burden of proof, the mov- proving that transfer moving party bears the burden of this included in guments for consolidation should be the ance aswell asproof of service. includedwith notice of related actions should be the of actionswith thatfiled was by the attorney. The pearance must besigned anddated senting attorney. The and telephone number of the repre- each caseandthe name, address presencein cationto acknowledgementficial notifi- and The shouldfile actions, the representing attorney districts short caption of the caseincluding names of eachrepresented party, a It should include thefull client. expectedto tive by the attorney of the representa- acknowledgement andacceptance should beattached asexhibits. docket sheet for eachaction The Alongwith pending cases,andthat transfer InterestedPetition. Party party must convince the panel discovery. The responsibility that heoris she notice of appearanceis last document andwitnesses andpromote andaction numbers of the court of the attorney’s anotice of appearance. fact betweenmaterial It is theIt case. take onbehalf of the the notice of related the notice of appear- document. The than onecommon same schedule is same schedule to notice of ap- proper.To filed is filed be also the the of- The ar- decidemultiple panel meets sixtimes transfer of the pending cases. The party DC andCharlotte. bara, Chicago,Seattle, hearings forbeSantawill 2016Bar- out the country. The sonably desirable locations through- hearings are typically heldin in ization time the litigation. court judge should beassigned the MDL and(2) what federal should beconsolidatedinto to ters ments JPML Hearing before actioncivil number. The MDL number andname andthe the Litigation,” Multidistrict on heading “Before the Judicial Panel pagemustfirst display theThe filings with shouldfiled be of actions andproof of service in PDF form. PDF must in be each party represented. filings All senting attorney andthe name of dress, phonenumber of the repre- name, street address, email ad- of eachpleading must include the determine (1) whether the case Once all of the required docu- The anorder setting oral argument whomay beaffected bythe JPML hasspecified that all filed, havebeen must haveuniform andplace of hearingto avariety of cases.JPML The panel gives notice of motions for central- the petition. remaining per year the panel en- Washington, final page district format. an sea- to any Smy6Lyu 531 1:1A Page185 11:21AM 5/3/16 ASBmay16_Layout 1 hotel has adequate transportation and whether(1) the proposeddistrict to court. The lection argumentto quicklyshifts dant(s) agreeto transfer agiven or of pending casesthat posed transferee court? availability and,(6) what settlement; crease or decrease the possibility of centralizationwill (5) in-district; in litigation the alongis of inconsistent rulings; (4) howfar duplicative work andthe possibility many; (3) expectedto and whether additional casesare how many arein how manyfiled, caseshavebeen mon These include: (1) howmany com- the that are generally acceptedto gument should focusmatters on to time limited ization. As counsel central- for appropriatejurisdiction tralized with noted above,the panel consolidation of anygiven case. As ally thetor proceedings actu- thanwill more Far is ing If there is there If The the transferee court includes: most pertinent speakconcerning the possible whythe casesshould becen- questions of fact exist; (2) facilities to facilities akinto atmosphere of aJPML hear- of anappropriate transferee if so,what and, to moni- lawyers to showup thewill transfer prevent inquiry of the panel as of judgein filed be asignificant number alegal conference. speak,his or her ar- centralization, the aparticular venue handle counsel to if the defen- is if so,how and the panel. given only makewill is anypro- is anygiven concerned is the is the most the se- be judgein interest of the proposed transferee and,(5) thedistrict; the MDLsin the(4) presence or absenceof other to relation in location of witnesses andevidence to tion cation of the defendant(s) acrossfrom the county; (2) the lo- eral widely, after consultationwith transferee judges havevaried tocols of “reaching out”to counsel. While usuallyfiled hasacase in to questions for should besent. This (and judges) where the MDL ously suggesting different ment of anMDL andsimultane- beadvocatingwill for the establish- order consider the evidence andenter an defense counsel easily bethwarted byarefusal of quire ability over centralization; the anticipationis priate. designate atransferee judgeifappro- terest federal cuit clerk’s office of the proposed feree counsel,to sel,with best pr handling anMDL, ajudge who the interest of aparticular judge Often, several the hearing,After the panel court judges, thedistrict sitting judge’s chambers or the cir- to to as in Typically,drama therelittle is of the proposed venue; (3) the is for plaintiff’s for actice is if there is in- is there if andask district grant or denytransfer and anMDL. Of course, the handling the MDL. participation of defense plaintiff’s ajudge’s interest can contact apotential trans- plaintiffs’ the proposed venue; the practice andpro- to plaintiffs’ participate. counsel canleadto bythat counsel as districts counsel potential in rela- in to in- to will coun- sev- an MDL. there isinterest in andaskif district the proposed federal circuit clerk’s office of chambers orthe transferee judge’s apotentialcontact defense counsel,to of with participation plaintiff’s counsel, isforpractice judges, thebest court several sittingdistrict consultation with widely, after judges have varied potential transferee “reaching out” and protocols of While thepractice to www.alabar.org

185

THE Alabama Lawyer Smy6Lyu 42/6 : P Page186 PM 8: 4/27/16 ASBmay16_Layout 1 186 THE Alabama Lawyer May transferee is court circuit clerkofthe jurisdiction ofthe jurisdiction jurisdiction ofthe jurisdiction transfer becomes effective andthe transferee court, 2016 Once the office ofthe transferor court order isfiled in ceases andthe thepanel’s exclusive. appointed.Ultimately, side until permanent leadershipis sel point plaintiffs’ by the court issuesinitially important ment task.” So, oneof the most is ous cases the judges that,“Early the agement order (“CMO”). However, caseman-first the be includedin ety This litigation. lawyersthe involvedin ule transfereepromptly judgeto clusive. The diction transferor court ceasesandthejuris- effectivethe of andthejurisdiction transferee court, transfer becomes the Court The the transfer rect or denyatransfer. Any order judges onthe panel the quick, usuallywithin Rulings ontransfer are in the selection of the transferee court. In Once the panel’s order to clerk of the transferee court. hearing. A counsel thatfiled have Federal Judicial Center instructs of casemanagement the astatusall conferencewith office of the circuit clerk of the many cases,the court conferenceinvolvewill avari- lead orinterim liaison coun- bespokespersons for each of the transferee court filed in filed be will Transferee case. a is is for the usual practicefor is case-manage- critical concurrence of four leadership of the organization of is two weeksof requireddi- to surprisingly the office of the defen- matters to matters is filed in filed is addressed the vari- ap- will sched- is ex- to in matters administrative be alocal attorney whohandles that are often lengthy recitations Both methods involve applications objectionsto and posed leadership slate, subject plaintiffs the rects file to “consensus model,” the court di- pointmentsthe made.In tions, which are evaluated andap- applications for leadership posi- petition leadership selection.In of the MDL in perts. For theplaintiffs’ discovery,briefing ally Committees committee. Committee bers of thePlaintiff’s Steering appointed bythe court aremem- other counsel.” The cations between the court and tiffs. plain- for who direct thelitigation or among two or counsel liaison to neys tions. The attorneys vie for leadership posi- peting attorneys or groups of tentious parts of the caseascom- this plaintiffs.plaintiffs’ For the for who directs thelitigation but dants havechosentheir counsel, There the “coordination of communi- thesecommittees it is it canbeoneof the most con- organized bytasks suchas Liaison counsel counsel. The serve aslead counsel and the judge whodecides model,” the court invites is are two basic models for often divided between court (“PSC”) or executive is done. appointwill attor- more court approval. andscience/ex- next attorneys that the work role is likely to likely is andassists attorneys the “com- it is it case, are usu- counsel apro- of lead to Smy6Lyu 42/6 : P Page187 PM 8: 4/27/16 ASBmay16_Layout 1 mandedtrial cases then proceedto present state of the case. The cided andanindication of the outline chronology of proceedings, an contains asummary of rulings, a order.pretrial a of form The is proceedingsrecord of thepretrial districts. feror remandedto recommending that the casesbe gestion of remand”with transferee court the litigation pretrial Remand the mon efforts, cost of thelitigation tlement. often, negotiation of agroup set- potential bellwether casesand, ings), screening andselection of motion depositions, expert disclosure), Plaintiff’s (the The on behalf of all thetrol MDLlitigate and ership, the appointed lawyers con- approved bythe court. contestsin end experience, most MDL leadership worthy of anobituary. Basedon sent In the courtAfter appoints the lead- settlement of the MDL, the conclusion of thelitigation. include workwill discovery the unusual casewhere the benefit” fees andexpensesat to of issues that practice ( they are awarded “com- The the transferor court their respective trans- fronts the leadershipfronts The Fact Sheet negotiated slates plaintiffs’ will file will doesnot result Daubert complete and,for their remain a“sug- the panel the cases counsel. [“PFS,”] hear- order unde- in the in re- in more this depends on caseload. The would not beableto tion transferto cases mains commentary asof late, the fact re- have garnered much academic many aspects of the MDL process again promoting efficiency. While postureto in district original their in back feree are tion ing and effort for the courts byavoid- and legal structures,time it saves factthat patterns haveverysimilar MDLs combine groups of cases promote tion mon large numbers ofwith cases proceduresconsolidate forpretrial is 1407 litigation multidistrict cial system. Combining casesfor heavy burden onthe federal judi- Conclusion is hibits such asdepositions andkeyex- the package”containingjob,“trial a plaintiffs’ in Complexlitigation districts. If the If their respectivedistricts. not resolved before the trans- common elements of the case duplicative discovery andmo- 1407the federal system practice. Even where cases hastheprimary questions of fact. MDL court, remandedarrive cases sothan anyother. thatto without theability to streamline to away availableto efficiency. Because leadershipits hasdone quicklytrial, proceedto federal court system procedural device MDLs under sec- purposeto counsel. handle theits imposes a under § and com- litiga- a L Court of Appeals. attorney for the Eleventh Circuit U.S. tional law. DeGaris also served asastaff with LL.M. in Law AnnesleyH. the Alabama. As E.B. DeGaris servedasalaw clerkto he graduated J.D. at Cumberland School of Law, where University of Melbourne School of Haltom, Jr., U.S. District Judge, N.D. Australia, where hereceived an aconcentrationin aRotary scholar, heattended University andearnedhis cum laude ham. Hegraduated Law founding partner of DeGaris AnnesleyH. magna cum laude DeGaris Groupin LLC from DeGaris www.alabar.org Samford interna- in Birming- the Hon. magna 1988. is the 187

THE Alabama Lawyer ASBmay16_Layout 14/27/168:30PMPage188 188 THE A l a b a m a L a w y e r May 2016 Smy6Lyu 42/6 : P Page189 PM 8: 4/27/16 ASBmay16_Layout 1 The Counselor Effective tions) are Introduction issues through the lens of legal vacuum. Rather, weare requiredto ivory lawyers andcompliance professionals are not issuedto keys adherence andseemingly everythingis is role ing vast of gray are usually just mirages that to Similar or “discouraged almost never”is somethingis In gatekeepers taskedwith the regulatory world, in-house lawyers andcompliance professionals By tower where they cancontemplate the questions of their choosingin in John Herbert Roth JohnHerbert order seeing acool springin nottotalitarian a “permitted,” “not permitted,” “encouraged most of thetime” to complywith profitability. Finally, in one–thereis preventing or law and/or internal policy. hardly ever ablack-and-white analysis. the desert, unassailable solutionsin challenged. As well, in-house nosuchthing asautomatic thefail test of consider business goals andview altering many industries, whether proposed actions (or inac- reality. 2 Yet, the proverbial this www.alabar.org gatekeep- sucha 1 a 189

THE Alabama Lawyer Smy6Lyu 42/6 : P Page19 PM 8: 4/27/16 ASBmay16_Layout 1 190 THE Alabama Lawyer the have anunhealthy aversionto is similar to similar sions.is He rather than chasing problems resulting baddeci-from spends histime motes Effective acceptablerisk thwarted bythe resulting paralysis. unchecked, thefirm’s variety.If the Never Man’s extreme conservativism self-interest, reside in the like all, the tionary largely comprised of adiscre- young and/or his compensationis true ularly firm’s the of ceptance andmonetary gain ahead places his personal desires for ac- ior. mitting of reasoning at the expenseof per- to trying are whocowersto tiger is First into fall compliance professionals tendto guable that in-house lawyers and that resembles theBerlin Wall. The be most comfortablewith chastity belt approach andwould draconianfigure fox emonial,to andat worst,similar role player status, but role his tify stands guard. A through the gate before which he to by those whoaretrying May Third is Third Withthis Secondis simply is Neversimply Man issuesto sayingis “no” In guarding the henhouse. asagatekeeper is, at best, cer- 2016 Yes some cases,the approachability andseeksinvolvement. He the “Yes Man,”apaper bonusthat unacceptably risky behav- Yes oneof three categories. Counselor hasanopen-door policy, pro- the “Effective Counselor,” achampion of Yes where the it is backdrop,it claiming team- claiming by the “Never Man,”a Man,the Never Man’smay motivation run abusiness”line overcome his bias for opposition. After health. is This true anda Yes providing input onaproactive basis whotakes a in usually the easiest answer. Not un- is Manmay jus- application his the “but we determined albeit of the self-preservation business mission may be the doctor whoadvocates not sufficiently educated on is Man member of the team. The agate ar- pass Man partic- risk, but manytimes a Never Manmay Effective cnweg what acknowledge step on first The is to is is the becoming an is unknowable. well as as knowable, journeyto knowwhat is Counselor your capacityto tive acknowledge what tive Knowledge ing professionals whoworkin the that perplex youngprofessionalsin in integrity his keeper pursue asuccessful career without sacrificing instead of apossible solution? Howcanthe gate- figure authoritarian tions step onthefirst journey to The investment advisory industry, but also seasoned increasingly regulated andotherwise complicated. process of discovering increase both,will you Counselor of what

is is to is the process? These are the questions acceptable? Howdoesanotherwise make wise decisions. This is knowwhat avoid being viewed asaproblem solutions.mal help navigate thefirmtoward opti- rammed, be run over or aroadblockto is Effectivean having closed the gate. Likewise, ously garnering appreciation for block aproposal while simultane- game, theEffective onlyto health care rather than tending but byestablishing clear expecta- place,first not bypromoting fear, ever throughfrom it improperly to who wouldtry tect the gate bydiscouraging those suit of without casting apall onthe pur- time, the of who must say“no”at least some status? Howdoesagatekeeper, how canoneobtainlofty sucha to pliance professionals shouldstrive profit. smart of suit andnecessaryto critical tive unknowable. And through the ac- not viewed asaspeedbumpto in-houseAll lawyers andcom- Effective be Counselor profit? Is it possible to Is profit? the sick. At industries that are becom- but rather anasset is dosojudiciously and Counselor becoming anEffec- knowable, aswell as In is Yet, Counselors. industries suchas sum, the Effec- regarded as the top of his Counselor can trying in the in trying is means that the pur- onewho to pass be pro- ASBmay16_Layout 1 4/27/16 8: PM Page 191

you must vigorously keep up with new developments– giveness, not the other, oftentimes more popular, way and the possibility of developments–in the applicable around. And, whether through periodic training or the bodies of law and the business of the firm itself, and organic process of working through various issues embrace the fluidity of both. Otherwise, you will find over time, the Effective Counselor should establish a yourself on a rudderless ship, never certain where you firm-wide understanding regarding how certain issues are going and hardly capable of leading. will be dealt with. This, in turn, should create for a The requirement for knowledge and awareness is more efficient, continuous flow of concerns through particularly important in industries where regulations, the legal or compliance department, as well as foster discoveries and methodologies are constantly chang- accountability throughout.6 ing, especially where such change fosters ambiguity in application. One must be aware of not only the black, white and otherwise well-defined boundaries, Availability but understand the gray and blurry lines as well. After Yet, knowledge, awareness, and expectation man- all, business profit is often awarded to those who can agement are not enough. An Effective Counselor must successfully navigate uncharted waters, whether by also be accessible to those he counsels and interact avoiding uncertainty when necessary or taking advan- with them with a healthy regularity. This does not tage of it where appropriate. Take, for example, the mean sacrificing life on the altar of work by inces- relaxation of a regulatory prohibition.3 The Never santly checking email late on a Saturday night. On the Man may be unwilling to wade into the previously other hand, an Effective Counselor cannot hide in his off-limit waters, or the Yes Man may dive in with office, making appearances only when a problem reckless abandon. In each case, the reaction is a result knocks on his door. Rather, an Effective Counselor of an inability or unwillingness to see the new frontier must take the time to actively foster an environment for what it is (or is not). On the other hand, an Effec- that, in both theory and practice, encourages questions tive Counselor is aware of the change, identifies the and honest conversations. possible risks and rewards, studies its internal and ex- If done so correctly, dividends are all but guaranteed. ternal ramifications and advises the firm how to First, employees will be less hesitant to seek advice and wisely (if it can) dip its toes. should be more candid when doing so. Second, you will get a peek into the mindset of employees, including what issues they deem important and–whether good or Expectation bad–how they might handle those issues absent legal or In addition to singular knowledge, the Effective compliance input. Third, you can use situations as Counselor establishes and manages expectations, most teachable moments, thereby diffusing knowledge and effectively before issues arise. At its most basic, the establishing a consistent mindset throughout firm. fact that a particular external legal regime, internal Fourth, simply interacting with business personnel will, policy4 or company mission will control or inform the over time, enable you to speak their language, which in consideration of an issue–or that certain issues need to turn will lead to better lines of communication and cre- be discussed in the first place–should be a surprise to ate a foundation for trust. Finally, you will be better no one.5 Likewise, one of the major tenets of the Ef- equipped to deal with the issue at hand because you will fective Counselor’s larger dogma should be that a be better informed about the business needs and ramifi- process and personnel exist for the very purpose of an- cations of available options. alyzing how or whether to proceed down a particular path, and that failure to utilize (or attempting to avoid altogether) that structure can result in actual, irre- Perception versible damage. For example, the expectation should Assuming that the firm has been trained, expectations Alabama Lawyer be that it is better to ask for permission than for for- are established and problems are brought to the fore, the THE

www.alabar.org 191 ASBmay16_Layout 1 4/27/16 8: PM Page 192

Effective Counselor must be cognizant of perceptions them to the situation as appropriate. It is important to prior to diving into substantive issues.7 Specifically, note, however, that the process of altering perceptions when addressing an issue and providing advice (or shut- can be very difficult and time-consuming, and may ting the gate, as the case may be), it is critical to identify only change incrementally in inches rather than miles. and acknowledge the perceptions through which each In addition, care should be taken to not upset natural, person views a particular problem. Perception, in the healthy perceptions that stimulate fair debate. present context, can be simply defined as how one sees the world. In a broad sense, it can be how one views the legal system, such as the perception that regulation Framing serves no purpose other than to restrict free enterprise. If circumstances permit, an attempt should be made In a narrow sense, it can be what one thinks about to control how issues are presented in order to encour- lawyers in general (e.g., lawyers always overcomplicate age the most balanced consideration possible. The everything) or even the counselor himself (e.g., the reason is that framing can, for better or worse, impact lawyer always says “no”). And, these perceptions can outcomes. Imagine that a doctor needs to recommend be based on direct experience (e.g., the lawyer always elective surgery. In presenting the option, the doctor tell me “no”) or acquired indirectly (e.g., the lawyer has could say that there is a 90 percent chance of surviv- a reputation for always telling people “no”). ing the surgery, or she could say that there is a 10 per- In addition to the perceptions of others, it is impor- cent chance of dying on the operating table. Studies tant to note that the counselor must take into account have shown that people are more likely to elect to his own perceptions. For example, lawyers and com- proceed with surgery in the first instance as compared pliance professionals tend to be more risk averse be- to the second, even though the surgery and anticipated cause we are trained to spot and plan for the worst mortality rate are identical. This can, at least in part, possible outcomes. In simplified terms, we see the be attributed to how the question is framed. landscape as being covered with landmines, at least In the present context, rather than require the gate- one of which is expected to explode. After all, Ameri- keeper to explain why passage is being denied (e.g., can legal education largely consists of studying dis- “this is why you should not”), the conversation could putes after something has gone wrong or a crime be framed in a way that requires the person seeking committed. By comparison, business people are more passage to explain why opening the gate is appropri- likely to accept risk because they view it in relation to ate (e.g., “this is why I should”). The reason is that the possibility of profit, both personally and at the asking the gatekeeper to “tell me why I should not” firm level. Therefore, while the Effective Counselor puts him on the defensive and may feed into his natu- should not forsake his skepticism like the Yes Man ral skepticism and tendency to err on the side of tends to do, he should guard against seeing everything safety. By comparison, asking the person seeking pas- as a half-empty glass like the Never Man does. sage to prove his case (e.g., “tell me why you After identifying perceptions, the counselor should should”) requires him to prove why the risk is accept- attempt to work with, rather than against, them if pos- able relative to the possible reward. sible. Working with a perception may take the form of The Effective Counselor has to be careful, however, identifying a correct and/or healthy perception (e.g., to avoid framing in a way that negatively reinforces the lawyer has the firm’s best interests in mind) and false or unhealthy perceptions. For example, if the busi- cultivating it via positive reinforcement. On the other ness person’s perception is that the counselor always hand, perceptions that are wrong and/or unhealthy says “no,” putting the burden of proof on that person (e.g., the lawyer never says “yes”) should be chal- may reinforce this perception by making him believe lenged. Similarly, the Effective Counselor should ex- that the issue has already been decided even before he plore his own perceptions (e.g., this employee always has been given the opportunity to present his side. In Alabama Lawyer puts his own interests ahead of the firm) and adjust such a nuanced situation, it may be appropriate to in- THE

192 May 2016 Smy6Lyu 42/6 : P Page19 PM 8: 4/27/16 ASBmay16_Layout 1 life business decision cansometimes have ashorter shelf remind to good knee-jerk reactions donot control.this In process asthoughtful asthe situationpermits erately In is downsideis body of lawis when the facts are complicated, ranted–and should beencouraged– hand, adiscussion may bewar- an insignificant cost. Onthe other decision canbeeasily reversed at negligible, or making a“wrong” anincorrectfrom actionis fallout is tion where anappropriateficient solu- debate may beunnecessarily inef- such that efficiencycritical. is sions are often madein quires it. all, After protocol that automatically re- necessary, rather than default whether afulsome discussionis Effective primed and Discussion into caution should necessarily bebaked is tion the ation various possibilities unless the situ- comprehensive consideration of the issuein must becareful not Similarly, me tell this steadframe otherwise not easily reachable. Once anissue hasbeenraised suchacase,theEffective downsideto than the impact of alegal decision regarding the seems acceptable, but please the discussion. dictates otherwise,if suchas inherently great and,thus, readily apparent, whenthe whyyoushould proceed.” slow downthe conversation and make the awaythat impedes honest, Counselor must decide the Effective the the issueits as“on for consideration, the high or aconclusion uncertain, the aproposed situa- those involved that the results of a business deci- to frame to Counselor real an time, Counselor should delib- to face A a Effective otherwise stroke his discussion, whether definition by cannot allow legal artificially simply own ego,because team player does. to justify to because hewants apprehensionto regard,is it existence or Of course, the sothat not what a Counselor his own To “no” whereis “no” Counselor should carefully pick his battles and say rencyis ical capital judiciously,this wherein Effective the Third, ing drive a beclear, sometimesis “no” the business sidewith that to saying “no.” This

either the best or only resolution. with tween presenting the business side shouldstrike note, theEffective or easily discounted. Onarelated discard that whichis neous issues, but Counselor must consider the extra- slowly. Second, theEffective everything than responding too perception that lawyers overthink is input asquickly aspossible–there Counselor should provide his Effective ofthe principles. First, be wiseto so, theEffective the ered, the natural progressionfor is Resolution team player does. definition stroke his ownego,becauseby own existence or his justify because hewantsto cially allow Effective the over businessprofits. concerns mayto need a lawsuit.In ment, to sible investment worldit might bepos- same issue. Put another way,the in Counselor should spendhispolit- nothing that anissue hasbeenconsid- After issueto too many options andprovid- drive adiscussion, whether legalartifi- apprehensionto but impossibleto only oneor nooption. means that theEffective sell out of abadinvest- that in mind in keep the only answer, but beresolved.In suchasituation, legal Counselor cannot balancefair be- a is simply is reinforcewill the Counselor would throughsift and to context his cur- Counselor otherwise not germane Of course, takepriority www.alabar.org trade away not what a anumber doing 193

THE Alabama Lawyer Smy6Lyu 42/6 : P Page194 PM 8: 4/27/16 ASBmay16_Layout 1 194 THE Alabama Lawyer professionals should strive. thing ney than anobtainable some- still state is of being,it Counselor simistic though there may besome substanceto worse yet, than others would ever more ideal asoneborn of the gatekeeper’s fantasy of being two.Still others might dismiss theEffective to gatekeeping function andthe pursuit of much natural–and evennecessary–tension between the Some pragmatism. mits selor Conclusion business input, not alegal or compliance opinion. input essarily resist providing his business input, but Finally, rule. Effective the likely is it particularly may pacts of aresolution, but also the precedential valueit selor must bemindfulim- of not only theimmediate commensurately sufficient.Effective the Sixth, notwill beableto any amount of versus reward,risk if and people make decisions basedontheir view of as “it depends.” The definitive Counselor should provide inputterms on Effective the Fifth, postmortem. timed propriately situation It may not bepossibleto tion communicate his rationale for agreeingto impact. be mindful that closing the gate hasapsychological in even May Some evertruly bea over another, andconveyalessonin to one havefor thefuture 2016 is its is for which in-house counsel andcompliance important to important is suchinstances, theEffective Fourth, theEffective offered, heshould becareful might argue that becomingEffective an views,ifthe andevenconcept ofEffective an canbeturnedinto aspossible, void of hedging concepts such ownpipe dream because real will strive to that thestrive exceptionwill is more is growinto crucial whenmaking anexception where clarity, symbiotic relationship between the abusiness than heever canbe,or calculate whether the rewardis of anaspirational, progressive jour- is simply too might addthatsimply thereis reasonis suchaspecimen of wisdom and the business-minded person (whether goodor bad). is This in doso cannot beevaluatedwith Counselor should not nec- ateachable onevia anap- Counselor should clearly that business-minded the moment, but a permit. Counselor must to profit for there for profit suchpes- state that life the process. that are as Yet, become the onesolu- never per- Counselor even risk if such Coun- Coun- it is it 8 L LLP in LLP ham Corporationin Endnotes John .When providing businessinput, care shouldbetakento withrespect 8. .For more information regarding various psychology theoriesfrom whichpercep- 7. 6. .For example,to pursuant 4. 2. Although this article addresses in-houselegalandcompliance Although thisarticle staff, many ofthe 2. .For example, 10,2013,theSECadopted onJuly to amendments 3. 5. .Pursuantto 1. to tion, orinability article, seeD article, tion, framing andotherpsychology concepts were borrowed for purposeofthis Id (last accessed onJan.22,2016). L.J. (Nov. 4,2013),availableat See generally, firm. for theadvisory a compliance manual,astherulebook ofsorts whichserves Act…” has adopted underthe[Advisers] adviser’s] persons, ofthe[Advisers] supervised Act procedures reasonablyto designed vestment advisersare requiredto mover’s advantage”to withrespect are approachto due vantage ofthisnewregulatory change. Many have adopted a “wait-and-see” ficers have struggled withhow, oreven whether,to if any, willresult from thisregulatory relaxation. Importantly, many compliance ofwith private offered securities underRule506.Itremainsto conditions, alongstandingprohibition againstgeneral solicitation inconnection Act lation DundertheSecurities who represent businessentities that donothave in-housecounsel. principles espousedareto equallyapplicable business entities are requiredto degrees, inanin-housecounsel andmany role. also serve Note, however, that all many investmentCCOs adviser designate achiefcompliance officer. Although notrequiredby and Exchange Commission (the to pursuant“SEC”) (the “Advisers investment Act”), advisersthat are registered withtheU.S. Securities . getting comfortable andpursuingwhat theirfirmsperceive gettingcomfortable to Herbert Roth Rule206(4)-7(c) oftheInvestment AdvisersAct Birmingham. ANIEL JohnH.Roth, New first Bar P, L compliance officer of Venor Capital Management John Roth 2007, theremaining regarding uncertainties itsapplication, whilesome K aprivate fund manager locatedin New York, claim theprotection, oftheattorney-client privilege. andthe New York State Bar. Priorto AHNEMAN in-house position at Harbert Management York.is Roth Herbert Roth Act, Rule206(4)-7(a)oftheAdvisers , T Power HINKING

http://www.thehedgefundjournal.com/node/8962 (especially intheprivatehave law fundindustry) with Balch wasanassociatewith Bing- & appoint compliance professionals. of1933,asamended, that removed, withcertain Down inthe “[a]dopt andimplement written policiesand accessing sources. additionalcapital prevent violation,by , F admittedto S AND AST is These take policiestypically theform of the general counsel andchief S outsidecounsel, especiallythose Hedge Fund, Industry LOW theAdvisersAct (2011). andtherules that the[SEC] to advisetheirfirms the Alabama State [theadviser]and beseenwhat impact, of1940,asamended Act, theAdvisers SEC-registered in- Rule506ofRegu- bea “first The are requiredto taking his theapplica- Hedge Fund take ad- ASB16AMinsert_Layout 1 4/26/16 11:54 AM Page 1

Photos courtesy of the Sandestin Golf and Beach Resort ASB16AMinsert_Layout 1 4/26/16 11:54 AM Page 2

Optional Activities at Baytowne Wharf The Village of Baytowne Wharf has many activities for kids and adults. Adventure Land Playground is a fun place for kids to play mornings through evenings on the imaginative nautical-themed playground. Adventure Landing Playground is an enclosed fenced area where kids can safely climb, swing, run and play. Baytowne Adventure Zone is open from 10 am-9 pm with a variety of reasons to “hang” around the village without having to get in the car to find fun! For an aerial view of the village and its surroundings, you may soar across the lagoon on the Baytowne Zipline, and then head over to the Sky Trail Ropes Course to test your balance and agility. If you still haven’t had enough fun and excitement, the Tower Climb and Eurobungy are attractions sure to thrill you. Adventure Zone activities have a fee. If you happen to come down a day early, you’ll love the excitement of Boomin’ Tuesday with a spectacular fireworks show over the Baytowne lagoon. Starting at 7 pm, kids may enjoy various activities, including inflatables and music on the Events Plaza Lawn. Then, at 9 pm, watch the sky light up with the fireworks show! Experience a ride that brightens every child’s smile on the Baytowne Carousel. From racecars to dragons to zebras and reindeer, let your child’s adventurous side come alive with the festival lights and music at the carousel. The carousel is open Fridays from 4-9 pm, Saturdays from 12-9 pm, and Sundays from 12-6 pm. Wednesday nights can tantalize your musical taste buds with the free concert from 7-9 pm on the Events Plaza Lawn. On Magical Thursday, you may enjoy an extraordinary magic show by Captain Davy from 7-9 pm at the Events Plaza Lawn. Friday will be a day to remember with options to attend the Build- A-Bear workshop where you may select an animal to build. Clothing and accessories for your new friend will be available for purchase. Deano the Cartoonist will be on site Friday to draw your caricature as a treasured souvenir. Blast Arcade and Laser Maze are open Sunday through Saturday from 3-8 pm. The fun-filled family entertainment center offers more than 60 redemption and video games that you can collect tickets for great prizes. For a real getaway, consider sailing with Captain Rex. Daytime cruises appropriate for family groups, pirate-themed cruises for those with young kids, pizza party cruises, party cruises for young people or adults or a wine and cheese cruise. The three-hour outing under sail onboard a beautiful, traditional schooner is a perfect getaway. Contact Captain Rex at (850) 730-7744 for details and fees. The pool, spa and fitness center are also available for use.

Photos and map courtesy of the Sandestin Golf and Beach Resort

2 2016 ANNUAL MEETING & LEGAL EXPO ASB16AMinsert_Layout 1 4/26/16 11:54 AM Page 3

ISi ALABAMA

FEATURING

ALABAMA STATEBAR J016 ANNUAL MEETING ASB16AMinsert_Layout 1 4/26/16 11:54 AM Page 4

PROGRAMAT-A-GLANCE Times and sessions are subject to change.

WEDNESDAY June 22, 2016 9:30 – 10:00 am THURSDAY A Mindful Movement Noon – 7:00 pm Quick breathing, stretching and 2016 Annual Meeting June 23, 2016 meditation tips to relieve stress Registration Opens 7:00 – 8:00 am “Friends of Bill W.” Meeting 10:00 am – Noon 1:00 – 2:30 pm Meet the Author – Alabama Law Foundation Between Black and White Trustees’ Meeting 7:30 am – 5:00 pm Registration Book signing by Robert N. Bailey, II, Lanier Ford Shaver & Payne PC, 2:30 – 4:00 pm Huntsville Board of Bar Commissioners’ 7:30 – 9:30 am Early Morning Continental Sponsored by the Alabama State Bar Meeting Breakfast 5:00 – 6:30 pm BREAKOUT SESSIONS Welcome Reception 7:30 – 9:30 am (MCLE programs) Coffee Bar Sponsored by Elections, Ethics & Government Relations and 10:00 – 11:00 am In-House Counsel & Government 8:00 am – 5:00 pm Super Lawyers’ Tips for the Legal Expo 2016 Lawyers sections Plaintiff and Defense Bar – Part I Legal Expo is intended for registered Sponsored by the Alabama State Bar lawyer attendees and their office admin- 6:30 – 8:00 pm istrative staff. We regret that children Family Night Dinner unaccompanied by a parent cannot be 10:00 – 11:00 am (with movie to follow) Mediation: What Works admitted to the Legal Expo. For registrants and their families, Experienced Panel of Mediators no charge. Outstanding food, music Sponsored by the Alabama State Bar and fun for adults and children 8:30 – 9:30 am OPENING PLENARY SESSION 10:00 – 11:00 am The National Political Landscape: Development in Business and Views from the House Complex Litigation Speaker: W. Michael House, Hogan Sponsored by the Business Torts & Lovells, McLean, Virginia Antitrust Law Section Sponsored by the Alabama State Bar 10:00 – 11:00 am 9:30 – 10:00 am State of the Alabama Federal Break – Visit Legal Expo 2016 District Courts Sponsored by the Federal Court Practice Section

4 2016 ANNUAL MEETING & LEGAL EXPO ASB16AMinsert_Layout 1 4/26/16 11:54 AM Page 5

12:30 – 1:30 pm Annual Bench & Bar Awards Luncheon ($35/person) 11:15 am – 12:15 pm Presiding: Lee H. Copeland, Copeland My, How Time Flies! The Practice of Franco Screws & Gill PA, Montgomery, Law 25 Years Ago, Then and Now 140th president, Alabama State Bar 10:00 – 11:00 am Sponsored by the Alabama State Bar No Comment? Coping With Volunteer Lawyers Program 1:30 – 1:45 pm Crises and Managing the Message – Break – Visit Legal Expo 2016 A Panel Discussion on Turning 11:15 am – 12:15 pm Lemons into Lemonade When the Alabama Water Policy and Law: Pudding Hits the Fan Emerging Implications for Real BREAKOUT SESSIONS Sponsored by the In-House Counsel & Estate Practice (MCLE programs) Government Lawyers Section Sponsored by the Real Property, Probate & Trust Section 1:45 – 2:45 pm 10:00 – 11:00 am Ethics in Social Media Solo and Small Firm Practice from 11:15 am – 12:15 pm Sponsored by the Office of General A to Z Funding Civil Legal Services: Counsel, Alabama State Bar Sponsored by the Solo & Small Firm Millions for Alabamians Section Sponsored by the Alabama Appleseed 1:45 – 2:45 pm Center for Law and Justice, Inc. 2016 Intellectual Property and 11:00 – 11:15 am Entertainment Update Break – Visit Legal Expo 2016 11:15 am – 12:15 pm Sponsored by the Intellectual Property, Digital Evidence, Encryption of Entertainment & Sports Law Section 11:15 am – 12:15 pm Digital Data Common Mistakes Lawyers Make in Sponsored by the Alabama District 1:45 – 2:45 pm Motion Practice – A Bench Perspective Attorneys Association Getting Your Foot in the Door: Panel of Trial Judges The Crucial First Steps on Appeal Sponsored by the Alabama State Bar Noon – 12:30 pm Sponsored by the Appellate Practice Bloody Mary and Mimosa Reception Section 11:15 am – 12:15 pm Honoring 2016 Alabama State Bar Stepping Back from the Practice of Award Winners 1:45 – 2:45 pm Law – How What I Have Learned Sponsored by the Litigation Section Hot Tips: Updates and Practice From a Two-Year Sabbatical Might Pointers Impact Your Life Sponsored by the Family Law Section Sponsored by the Litigation Section

Photos courtesy of the Sandestin Golf and Beach Resort

ALABAMA STATE BAR • https://www.alabar.org/about-the-bar/annual-meeting/ 5 ASB16AMinsert_Layout 1 4/26/16 11:54 AM Page 6

FRIDAY June 24, 2016 3:00 – 4:00 pm Workers’ Compensation Case Law 7:00 – 8:00 am Update 2016 “Friends of Bill W.” Meeting Sponsored by the Workers’ Compensation Law Section 1:45 – 2:45 pm 7:30 am – Noon Alabama Labor and Employment Registration Law Update – Important Cases, 4:00 – 5:00 pm The Alabama Lawyer Editorial Regulatory Changes and Trends 7:30 – 8:30 am Board Meeting Sponsored by the Labor & Employment Early Morning Breakfasts: Law Section • Alabama State Bar Past 5:00 – 6:30 pm Presidents’ 20th Annual Alabama State Bar • University of Alabama 3:00 – 3:30 pm Volunteer Lawyers Program A Mindful Movement Order of the Coif Reception ($25/person) Quick breathing, stretching and meditation tips to relieve stress • Inns of Court Coffee 6:00 – 7:30 pm • Leadership Forum Samford University Cumberland Alumni Breakfast & Meeting 3:00 – 4:00 pm School of Law Alumni Reception ($25/person) Importance of Communication with Clients and Jurors/Criminal Law Update 6:00 – 7:30 pm University of Alabama School of 7:30 – 9:30 am Sponsored by the Alabama Criminal Early Morning Continental Law Alumni Reception Defense Lawyers Association Breakfast 7:30 – 8:30 pm 3:00 – 4:00 pm Jones School of Law Dessert 7:30 – 9:30 am Non-Resident Members Section – Coffee Bar Reception Organizational Business Meeting Sponsored by the Non-Resident 8:00 am – Noon Members Section 8:00 pm – until Legal Expo 2016 Celebrating the Diversity of Our Profession 3:00 – 4:00 pm Common Sense Mediation: Insider Secrets for Successful Resolutions Sponsored by the Dispute Resolution Section

6 2016 ANNUAL MEETING & LEGAL EXPO ASB16AMinsert_Layout 1 4/26/16 11:54 AM Page 7

8:30 – 9:30 am FEATURED WORKSHOP 10:00 – 11:00 am Active Shooter Training – The New Regulation Run Amok or Consumer Norm – Awareness Required! Protection: What Does the FTC Really Presenter: Chance Corbett, associate Want? An Update on Regulatory director at Auburn University Oversight According to the FTC 11:15 am – 12:15 pm Department of Public Safety, Auburn Sponsored by the Administrative Law Business Law Developments and Sponsored by the Alabama State Bar Section Legislative and Judicial Updates Sponsored by the Business Law Section 8:30 – 9:30 am 10:00 – 11:00 am Business Law Section – Alabama Law Institute 11:15 am – 12:15 pm Business Meeting Legislative Update How to Make Diversity Work for You Sponsored by the Business Law Section Sponsored by the Alabama Law Institute Sponsored by the Diversity in the Profession Committee 9:30 – 10:00 am 10:00 – 11:00 am Break – Visit Legal Expo 2016 Introduction to Bankruptcy for the 11:15 am – 12:15 pm Non-Bankruptcy Practitioner – Tips and Traps When 9:30 – 10:00 am How to Avoid Getting in Trouble Counseling the Elderly A Mindful Movement With the Bankruptcy Court Sponsored by the Elder Law Section Quick breathing, stretching and medi- Sponsored by the Bankruptcy & tation tips to relieve stress Commercial Law Section and the 11:15 am – 12:15 pm Alabama State Bar Update on Legislative and Ethics Issues for 2016 BREAKOUT SESSIONS Sponsored by the Elections, Ethics & (MCLE programs) 10:00 – 11:00 am Lawyer Stress! What Causes It, Government Relations Section Practical Ways to Deal with It and 9:30 – 11:00 am What Can Happen if You Don’t Cybersecurity – Panel Discussion 11:15 am – 12:15 pm Sponsored by the Alabama Lawyer SPECIAL PRESENTATION – Sponsored by the Business Law Section Assistance Program Panel Discussion Speaker: Linda A. Klein, Atlanta, 10:00 – 11:00 am president-elect, American Bar Super Lawyers’ Tips for the Plaintiff 10:00 – 11:00 am Imagining the Future of the Association and Defense Bar – Part II Profession of Law in the 21st Century – Sponsored by the Women’s and Sponsored by the Alabama State Bar Are You Ready for Artificial Litigation sections Intelligence and Trade Unions? Sponsored by the Leadership Forum and Young Lawyers’ sections

Photos courtesy of the Sandestin Golf and Beach Resort

ALABAMA STATE BAR • https://www.alabar.org/about-the-bar/annual-meeting/ 7 ASB16AMinsert_Layout 1 4/29/16 3:12 PM Page 8

2:30 – 3:30 pm Women’s Section Business Meeting

3:00 – 3:30 pm A Mindful Movement Quick breathing, stretching and meditation tips to relieve stress

6:00 – 8:30 pm 11:15 am – 12:15 pm Silent Auction Fundraiser Tell Your Best Story: The Parallels 1:00 – 5:00 pm Sponsored by the Women’s Section Between Successfully Presenting a Golfing at Sandestin Partners Case to a Jury and Writing a (G.A.S.P.) Golf Tournament 6:00 – 9:00 pm Bestselling Novel ($150/player) Cartoons by Deano Minton Sponsored by the Alabama State Bar The Raven Golf Club, Sandestin Registration includes practice rounds, 7:00 – 9:00 pm 12:30 – 1:00 pm warm-up, boxed lunch and 18 holes of President’s Closing Night Women in the Law Reception golf with cart and greens fees included. Family Dinner Sponsored by the Women’s Section and Shotgun start begins tournament. ($45/person) the Alabama State Bar We have planned an outstanding 1:00 – 5:00 pm evening of fun with great food, 1:00 – 2:00 pm Family Tennis Tournament beverages and special music featuring 14th Annual Maud McLure Kelly ($25/player) “The WingNuts” with lead singer Award Luncheon Sandestin Resort Tennis Center, District Judge Alan Furr, 30th Judicial ($36/person) Baytowne Circuit, Pell City Sponsored by the Women’s Section Honoring Lee H. Copeland, 2:00 – 4:00 pm 140th president, Alabama State Bar Build-A-Bear Special Event (Children 12 and under) 9:00 – 11:00 pm Afterglow Party 2:00 – 4:00 pm Sponsored by the Leadership Forum Cartoons by Deano Minton and Young Lawyers’ sections

8 2016 ANNUAL MEETING & LEGAL EXPO ASB16AMinsert_Layout 1 4/26/16 11:54 AM Page 9

SATURDAY June 25, 2016 9:15 – 11:15 am 7:00 – 8:00 am Grand Convocation: Legal Run-Around 5K Run and State of the Judiciary 1-Mile Fun Run/Walk Presiding: Lee H. Copeland, Copeland Baytowne Loop/Village Lakeside Loop Franco Screws & Gill PA, Montgomery, Sponsored by Freedom Court 140th president, Alabama State Bar Reporting/Freedom Litigation Support State of the Judiciary Address: Chief Justice Roy S. Moore, Supreme Court 7:30 – 8:45 am of Alabama, Montgomery Christian Legal Society Breakfast ($25/person) 11:15 am Sponsored by William T. Coplin, Jr. Board of Bar Commissioners’ LLC, Rosen Harwood PA and Stone Meeting Granade & Crosby PC 11:30 am – 1:30 pm 7:30 – 9:30 am Presidential Reception Honoring Coffee Bar J. Cole Portis of Montgomery, 141st president, Alabama State Bar 8:30 – 9:15 am Sponsored by Beasley Allen Crow Silent Auction Wrap-Up Methvin Portis & Miles PC and the Sponsored by the Women’s Section Alabama State Bar

Registration is easy. Just go to https://www.alabar.org/ about-the-bar/annual-meeting/ for details or scan this QR code with your smart phone.

Photos courtesy of the Sandestin Golf and Beach Resort

ALABAMA STATE BAR • https://www.alabar.org/about-the-bar/annual-meeting/ 9 ASB16AMinsert_Layout 1 4/26/16 11:54 AM Page 10 ASB16AMinsert_Layout 1 4/26/16 11:54 AM Page 11

HOUSING REQUEST FORM Book online: http://www.Sandestin.com/22N58R.aspx Sandestin® Group Reservations Call 800.320.8115 or Fax: 850.267.8221 ALABAMA STATE BAR 2016 ANNUAL MEETING Tuesday, June 21 - Sunday, June 26, 2016 • GROUP CODE: 22N58R Name ______Number in Party: Adults ______Children ______Company Name ______Business Phone (______) ______Address ______E-Mail ______City ______State ______Zip ______Sharing With ______Arrival Day/Date ______Departure Day/Date ______Please select method of payment: Credit Card # ______Exp. Date ______Signature ______Authorization # ______(located on the reverse side of card) Check # ______

Your cut-off date for reservations is May 21, 2016, after which rooms will be sold on a space-available basis.

ACCOMMODATIONS AND RATES A deposit of one night’s room rate is required to secure rooms. All room rates quoted DO NOT include 12% fees and 11.5% taxes. Please circle your preferred accommodations. All requests are subject to availability at time booking request is received. Any other type of accommodation besides what is in your block will vary in cost depending on location.

ACCOMMODATION RATE ACCOMMODATION RATE ACCOMMODATION RATE Beachside 1 Bdrm* ...... $ 355 Luau Studio*...... $ 225 Village 2 Bdrm ...... $ 349 Beachside 2 Bdrm* ...... $ 489 Luau 1 Bdrm*...... $ 259 Village 3 Bdrm ...... $ 424 Westwinds 1 Bdrm*...... $ 369 Luau 2 Bdrm*...... $ 359 Grand Complex Studio ...... $ 219 Westwinds 2 Bdrm*...... $ 519 Lakeside 2 Bdrm ...... $ 240 Grand Complex 1 Bdrm ...... $ 239 Westwinds 3 Bdrm*...... $ 629 Lakeside 3 Bdrm ...... $ 339 Grand Complex 2 Bdrm ...... $ 359 Southside 2 Bdrm ...... $ 325 Village – Studio ...... $ 209 Grand Complex 3 Bdrm ...... $ 459 Southside 3 Bdrm ...... $ 419 Village 1 Bdrm ...... $ 229

*A minimum stay of 5 nights is required for Westwinds and Beachside Towers; 4 nights for Luau accommodations. The Grand Complex consists of accommodations in the Grand Sandestin®, Lasata, Bahia, and Elation

IF ONE OF THE ABOVE ROOM TYPES ARE UNAVAILABLE ON-LINE, PLEASE CALL OUR RESERVATIONS DEPARTMENT AT 800-320-8115 TO CHECK FOR AVAILABILITY.

Deposit is refundable in the event of individual room cancellation, provided notice is received by Sandestin® seven days prior to scheduled arrival date.

BOOK ONLINE AT www.Sandestin.com and enter group code 22N58R

ALABAMA STATE BAR • https://www.alabar.org/about-the-bar/annual-meeting/ 11 ASB16AMinsert_Layout 1 4/26/16 11:54 AM Page 12

See you next year at the Grand Hotel Marriott Resort, Golf Club & Spa in Point Clear July 12-15, 2017!

Alabama State Bar • 415 Dexter Avenue • Montgomery, Alabama www.alabar.org

Photos courtesy of the Sandestin Golf and Beach Resort ASBmay16_Layout 1 4/27/16 8: PM Page 195

JudicialArbiter Group in Alabama.

FormerTrial Judges Offering Mediation,Arbitration, Dispute Resolution ServicesStatewide .

.I.. 1-.i. (-..rl.:i.:··.,1.- ..:. . ·:,;_r_.·.1.r,.:.d. ·.. ·. ·.:.. -.t" . .-· ,.r.I ...:11 ..I"-.' :1..;: -.1·, .. '· .:.r-;._:•.:_·,_;,_:,11 .. ·.,·,·:: ,.·.I i"-,.1-.,1 · ·r , ·;···I 1 ·. ,;,.-, :·I j1,.:: ·. i·-·r·,:;-11i ·_1 . ··..-i:. : 1:11 .· · 11. ,i· · . ·,;-:· ·;· ,·i:•11.1 . : - 1--i 1: j . ·• . • I , . I I"I : .:I" 1 ·1 I I d . . I.'. •I". ·I I : ,."1-.:.. ~ _1:1..·, : , .: •. :" 1, 1. dI·. I , J. ,I:··:. i ,..... :j I .".. •. I . . I I I · I' I'' i 11'.·cl J._:": •: i,:I· . _.,! .1~I:. . -: I• . . I I·. :.·, 11 .' Smy6Lyu 531 1:1A Page196 11:21AM 5/3/16 ASBmay16_Layout 1 196 THE Alabama Lawyer assistance. if wecanprovideyour concernsandsee call (334-517-2238) sothat wecandiscuss this yourself connectingwith and completely confidential. youfindIf law complaint stance usedisorder result agnosed oruntreated depression orasub- worsening negative consequencesof undi- torneys wecanassist before the inevitably to mary goalsis may besufferingin serviceto committeeis and for a finallybecause he life Program(ALAP) participant. This and aformer Alabama Lawyer Assistance mously byasuccessful Alabama attorney The –Robert Bar! call Fear May help. Hecurrently servesonour ALAP hasbeenchanged for the better simply article, I encourageto give you usa enforcement. Ourprogramis following article wassubmitted anony- ALABAMA LAWYER ASSISTANCE PROGRAM Lawyer Assistance Program director to the to 2016 B. other Alabama attorneys who to Thornhill, MS,LPC, ALAP andsincerely reach out the barorinvolvement of the of increase the numberof at- passionate about being of willing to willing became silence. Oneof ourpri- the messagein in aformal voluntary Alabama man’s with make “had it all,”“had Iwas personally miserable. to goals up In house andwasto beginning with aprominent law Ihadanice firm. school, agreat andasaresult, Istarted job graduatedmy nearthetop of found achallengeIcould notovercome. I ways at being I otherwords,my Ihadachieved allof “bottom.” Ihadnever thought about scentto thede- whenIstarted do notknow beenahighachiever andrarely thebottom ofanything. Ihadal- Yet, that point. my personalandemotional even thoughI start afamily. start classinlaw life In ment with either oftheseprofessionals. diagnosis,my Ididnotcontinue Even suffering from depression andanxiety. counselor, that Ilearned was probably appointments witha psychologist anda world around me. Eventually, afew after paralyzedby should notfeelAt solost. someone withsomany blessingsinlife to sense retrospect,my Iwas stillashamedof My with the knowledge ofapotential withtheknowledge personalunhappinessmadeno me. Iwas frustrated because anon-specificfear ofthe timesIjustfelt treat- ASBmay16_Layout 1 4/27/16 8: PM Page 197

situation and I was probably not ready from the Alabama State Bar for so long seemed to understand me. She sug- to do the work necessary to begin to that not once did I think about the bar gested I participate in a small group of change it. as a source of assistance or hope. professionals (mostly attorneys) and use Instead of professional treatment, I At that point I felt I had nothing to that as an additional way to treat my de- decided to try different career paths in lose, nor did I have any other place to pression and anxiety. I was shocked and order to find peace and happiness. turn, so I called the number for the Ala- relieved to learn that I was not the only Eventually I found myself practicing law bama Lawyer Assistance Program. I one suffering with these feelings. as a solo practitioner. Even though I found myself immediately speaking My recovery process next led me to my started to develop a decent business, first Alcoholics Anonymous (AA) meet- the lack of any structure did not serve ing. Ironically, one of the first people I me well. My ability to deal with the pres- I eventually reached saw was an attorney I knew. My initial sures of my job and life began to further feeling was panic and I almost turned diminish. I was becoming more and a point where I around and left out of fear that he would more dependent on alcohol as a coping see me and know that I was an alcoholic. mechanism, drinking every night as a assumed every letter My reasoning soon took over; I realized way to “unwind” or “relax.” I would drink that he was an alcoholic, too, and that I when I had a tough day and I would I received from the really had nothing about which to be drink to celebrate a success. In reality, I ashamed. He eventually became a good wanted to drink at every available op- Alabama State Bar friend in my recovery process. portunity. I had finally found a challenge I began to work the sobriety process that I could not overcome. I was an alco- through the 12 steps of AA. I was so holic and alcohol was my master. Most was a bar complaint grateful for the recommendations and of my days were spent thinking about suggestions I received in early sobriety to when I was going to get my next drink. (only to be surprised “just go to meetings” and to “focus on As a result, I found myself being non-re- not drinking today.” I also found a lot of sponsive with clients, not opening mail for to find an offer camaraderie with fellow attorneys in the fear of what it might say and just generally recovery process, even discovering a re- developing a manner of acting that was for life insurance or covery meeting specifically for attorneys. putting my business and personal life at There were fellow attorneys just like me, great risk. My behavior started to threaten a notice about dealing with identical pressures and con- the safety of my young children, yet I did cerns. I soon realized that even though nothing to change. As I experienced these continuing the details may be a little different, all of personal “failings,” I became more and our stories were basically the same. more depressed. I eventually reached a education hours). Today my life is completely different point where I assumed every letter I re- from that day I made the phone call to the ceived from the Alabama State Bar was a bar. My law practice has grown and has bar complaint (only to be surprised to find with the then-director of the program, become financially stable (and even fruit- an offer for life insurance or a notice about the late Jeanne Marie Leslie. She did not ful). I just celebrated my five-year sobriety continuing education hours). The mere say much, but asked what I was doing anniversary. I have a great relationship sight of the Alabama State Bar in Mont- the next day. When I could not come up with my children and now I am more pres- gomery evoked feelings of fear and dread. with any plans, she told me to come to ent and engaged with them. I am also My life was spiraling out of control her office and, thankfully, I did not have able to pass on some of the emotional les- and it did not seem like the end would enough mental energy to object. sons I have learned in my recovery. Finally, be a happy one. However, in one of That phone call was the start of a jour- I am a member of the Alabama Lawyer As- those moments of a higher power work- ney of recovery for me. I met with Jeanne sistance Program Committee, gratefully ing in my life, I came across an article Marie and, for the first time, was open giving my time to an organization that about lawyer recovery and assistance and honest about my situation and my helped save my life. I can even drive past programs. I had not even been aware personal thoughts. Much to my surprise, I the Alabama State Bar in Montgomery that state bars offered such services. I found a person who did not judge me or and feel a sense of gratitude, instead of Alabama Lawyer had feared retribution and punishment question me, but rather just listened and fear and dread! L THE

www.alabar.org 197 Smy6Lyu 42/6 :P Page198 8:PM 4/27/16 ASBmay16_Layout 1 198 THE Alabama Lawyer May M A R G O R P E C N A T S I S S A R E Y W A L A M A B A L A 2016 Smy6Lyu 42/6 : P Page199 PM 8: 4/27/16 ASBmay16_Layout 1 “co-occurring disorders” are theruleandnot exception! strongly associated withstress, depression andanxiety. These of mood-altering substances suchasalcohol have been problems for attorneys. We populations.” andstress Depression, anxiety are alsosignificant with alcohol usedisordersat generallying that consistent ishazardous, orotherwise harmful study) andprovides current andreliable statistics. employed attorneys in19states inthe (Alabama participated 1,200 attorneys. This recent studyinvolved 12,825licensed and neys camefrom a1990 Washington state studyinvolving some garding alcohol useandmental healthconcerns amongattor- recent statistics andinformationre- andmostwidely-cited 2016–Volume 10-Issue1-p45-52).Priorto Attorneys”American ofAddiction (Journal Medicine ; February HealthConcerns Mental Substance Useamong andOther recently published. The A Concerns among American Attorneys These show findingsclearly that attorneys experience “drink- • • • • • Here listoffindingsfrom isabrief thestudy: Twenty-three percent experienced symptoms ofstress. some point intheircareer.) percentat concerns reported withanxiety (Sixty-one were Symptoms ofanxiety point intheircareer.) a given year. (Forty-six percent concernsat reported cent rate A high associatesat younger lawyers underage30(31.9percent) andjunior The abuse amongthegeneral public. rate timeshigherthanthe dependent”–three considered “hazardous, andpotentially harmful alcohol- More Alcohol Abuse andMental Health tion Commission onLawyer Assistance Programs was FordBetty Foundation BarAssocia- andtheAmerican comprehensiveby national studyfunded rate highestproblem drinking ofthegeneral population experienced depression in than20percent oflicensedat lawyers drink ofdepression–28 percent–comparedto law (31.1percent). firms titleofthestudyis, “The have for known many years that use rate a by experienced muchhigherthanother overall was among thisstudy, themost 19percent. Prevalence of theHazelden By ofalcohol B. Robert levels 8per- some Thornhill Many stances, oramental healthissuesuchasdepression oranxiety. who may problems beexperiencing withalcohol orothersub- to alcohol orothersubstances. experience depression, stress asaresult oranxiety ofabusing cope with stress, or depression. anxiety Many othersbeginto [email protected] AssistanceProgram, tance,to or group, however, attorneys areto amongthelast highly motivatedto and thevalue oftherapy andtreatment. They miracle have ofrecovery, experienced thelife-changing scattered around thestate. They are readyto andwilling volunteer attorneys, mostofwhomare in recovery themselves, ward fority thosewhohave thecourage andwillingnessto ofmaintaining completethe supreme confidential- importance for ourprogramsupport since itsinception, andunderstands Th be strictly confidential.be strictly We involvement withtheAlabama Lawyer Assistance Program will ofacolleague whoissuffering,or know us. pleasecontact Your without treatment. you seeyourself If amongthesestatistics, on theirown. ormental healthissues.diction These maladiesdonotgetbetter seen families, careers andeven livesto lostdue through ourwork inthisprogram. Unfortunately,we have courage ourselves andourcolleaguesto andmentalassociated health issues,to withaddiction and this newstudyasamotivationto from receiving theassistance andtreatment that theyneed. ing theirreputation andkeepsmany ispervasive attorneys providing confidential assistanceto The Robert B. Thornhill, Most attorneysMost are and self-reliant, ambitious, perfectionistic It e my is Alabama State Barhasdemonstrated strong andconsistent seenmany lives, familiesandcareers transformed andseekhelp. We beginto Alabama Lawyer Assistance Program (ALAP) isdedicated we hopethat evenaproblem. acknowledge The They are progressive andgetworse over time abusealcoholway (orothersubstances) asa to provide goodservice (334) 517-2238 or (334) 224-6920, MS, LPC, MS, have adedicated committee of canallusetheinformation obtainedin to hope director, Alabama Lawyer actively reduce actively thestigma hearfrom you! lawyers andlaw students reach outfor help. We theirclients.As fear ofdamag- untreated ad- seekassis- www.alabar.org come for- have also assist! en- to a L 199

THE Alabama Lawyer Smy6Lyu 42/6 : P Pg Page2 PM 8: 4/27/16 ASBmay16_Layout 1 200 THE Alabama Lawyer L L L L L May Public reprimands suspensions Disbarments status Transferto Notices 2016 Disability inactive inactive Disability ralph Bohanan, Jr. Bohanan, attorney Birmingham ralph • Disbarments Deanroberson attorney Jerry Haleyville • Status Inactive Transferto • • Notices to likely Commission, findingprobable causethatnary Bohanan’s was causingor conduct was were proceeds. The ple cases,to andthenfailed deny charges heaccepted settlement fundsonbehalfof multipleclients inmulti- and (n),8.18.4(a),(b), (c)and(g),Ala.R.Prof.to failed C.Bohanan Board oftheAlabama State violated BarfindingBohanan Rules 1.3,1.4,1.15(a),(b) The Alabama, effectiveby December 15,2015, Board oftheAlabama State Bar.Disciplinary [Rule27(a),Pet. No. 2016-169] to tus pursuant Board oftheAlabama State Bar.nary priate disciplineshallbeimposedagainsthiminASBNo.by 2013-1908 thereafter, theallegations contained therein shallbedeemedadmitted andappro- bama State Bar’s charges within28daysMay formal of disciplinary James William Woolley, whosewhereabouts aremustanswer unknown, theAla- Board oftheAlabama State Bar.nary priate disciplineshallbeimposedagainstherinASBNo.by 2011-709 thereafter, theallegations contained therein shallbedeemedadmitted andappro- bama State Bar’s charges within28daysMay formal of disciplinary Tessie Patrice Clements, whosewhereabouts aremustanswer unknown, theAla- supreme court entered supreme court itsorder baseduponthedecision oftheDisciplinary May interimly suspendedon andsummarily DISCIPLINARY NOTICES insteadto disbursed to causeimmediate injury and serious clients’were funds by 19,2016, Rule27(a),Ala.R.Disc. P.,effective January Bohanan or third parties. Prior orthirdto Bohanan parties. to disburse Disability Disability not preserved inBohanan’s notpreserved trustaccount, and theclients theirshare ofthesettlement order oftheAlabama Supreme Court. was was transferredto disbarred from oflaw thepractice in aclient or the public, andthat he by 13,2015 disbarment, Bohanan disability inactive sta- inactive disability order oftheDiscipli- 25,2016or 25,2016or respondto theDiscipli- order ofthe theDiscipli- or Smy6Lyu 42/6 : P Pg 1 Page2 PM 8: 4/27/16 ASBmay16_Layout 1 • attorney Birmingham Thomas Christian Fernekes • duct asalawyer concerningduct allegedviolations ofRules1.3, thatwere there disbarment, whichwas baseduponhisacknowledgement Board oftheAlabama State Baraccepting Legg’s consentto entered itsorder baseduponthedecisionofDisciplinary order ofAlabama. oftheSupremeThe Court by 20,2016, oflawpractice inAlabama, effective January attorneyMobile 2010-1212, 2012-1572and2012-1890] 8,2013.[ASB Nos. suspendedJanuary been summarily clients’ fees withhispersonalfunds. Fernekes hadalready form to 8.4(c) and8.4(g),Ala.R.Prof. C. violating Rules1.3,1.4(a),1.15(a),1.16(a)(2),8.1(b), 8.4(a), Board of the Alabama State Bar, findingFernekes of guilty 23,2015order enteredof theOctober by to subject bama Supreme Court bama, effective Novemberby 6,2015, disbarred andexcluded from oflaw thepractice inAla- investigation.course of adisciplinary to failed communicate withhisclients, failedorrefusedto thework for whichhewas paidandcommingled the respondto pendinginvestigations into hisethicalcon- J. stephen Legg requests for information the during Fernekes failedorrefused theterms andconditions was disbarred from the order oftheAla- theDisciplinary supreme court was per- • 2012-1700; 2013-565and2015-510SC1141125] 2011-1536; 2011-1679;2011-1736;2011-1762;2012-213; statementsto lawyer, paidanon-lawyer for referrals andmadefalse ployees. alsoimproperly splitfees Middleton withanon- hisem- audit ofhisbankaccounts andproperly supervise accounting aperiodic oncile statements or and/orperform dletonto failed a trust account, law office account andpersonalaccounts for ton’s 8.4(a), 8.4(c)and8.4(g), 1.15(i),1.15(n),1.16(d),5.3,4.4,7.2(c),8.1(a), 1.15(e), 1.15(f), lated Rules1.2(a),1.4(a),1.4(b), 1.5(b), 1.15(a),1.15(b), bama State Bar. was found Middleton ofhaving vio- guilty to pursuant ofAlabama,Supreme effective Court September2,2015, from oflaw thepractice by inAlabama Fairhope attorney No. by discipline Ala. R.Prof. C., 8.4(a)and8.4(g), 1.4(a), 1.5,1.15(a),1.15(b), 1.15(e),1.15(f), period lastingmoretwo period than 16-136etal] employeesto pledguilty care ofYOU the order of the Disciplinary Board oftheAla- theorder oftheDisciplinary thebar,to Alabama Lawyer Assistance which,ifproven, would likelyresult inserious your clients, but thebar. [ASB Nos. 2011-1396;2011-1481; You Confidential call services, review hisbankstatements, personallyrec- who takes stephen mark middleton Assistance Program For includedisbarment. [Rule23,Pet. Ala. R.Prof. C. takecare of Alabama Lawyer information onthe Program’s Free (334) 224-6920 embezzlingfrom Middleton’s years. thistime, During Mid- In 2013,oneofMiddle- In order ofthe was disbarred www.alabar.org and ? . 201

THE Alabama Lawyer Smy6Lyu 42/6 : P Pg 2 Page2 PM 8: 4/27/16 ASBmay16_Layout 1 202 THE Alabama Lawyer May OnFebruary ofAlabama 17,2016,theSupremeen- Court • attorney Birmingham • Suspensions (Continued • Public Reprimands 2016 the case. Moreover, misstated Belser thestandard ofreview Alabama JuvenileAct Justice to Belser’s was brief justover apagelong, onlycited the brief noted that of theargument thecourt section venile court, thejudgment itsopinionaffirming oftheju- venile In Court. parentalwere rights submitted onbehalfofanappellant,Belser abrief whose threeby briefs filed Appeals submittedto of Civil oftheAlabama Court 8,2015,theclerk or aboutApril 2016 for violating Rules1.1,1.3and8.4(d), 8, public reprimand withoutgeneral publication onJanuary . [Rule25(a),Pet.duct No. 2015-1663] violation ofthe Texas volving dishonesty, fraud, deceit andmisrepresentation, in Towery ment suspension, ofactive ending November 14,2017.Accordingto in Texas fortwo Texas, includingsuspendingherfrom oflaw thepractice Towery, a fineandotherdisciplineon an agreed judgment suspensionwhichimposed ofactive 2015. OnNovember 20,2015,theState Barof Texas issued Towery gaines bama attorney tered anorder ofreciprocal discipline suspendingAla- [Rule 20(a),Pet. No. 2016-128] investigations. thecourse during ofdisciplinary authority to spond eral Counsel evidencingCooper failedorrefusedto orderby was basedonapetitionfiled 8,2016.The fective January Commission oftheAlabama Statethe Disciplinary Bar, ef- to pursuant suspendedfromsummarily oflaw thepractice inAlabama Decatur attorney general propositions oflaw anditdidnotcite thecurrent requests for information from adisciplinary from page201) Rules8(e)and20(a), BeverlyTowery, Lynn gaines years, beginning November 15,2015and for Howard Belser onbehalfofappointed Belser clients. two terminatedby the Disciplinary Commission copies of theDisciplinary Disciplinary Rules ofProfessional Con- Disciplinary HowardBenjamin Cooper years, effective November 15, mcgriff Belser, mcgriff iii Disciplinary Commission’s Disciplinary that controlled theissues in by Ala. R.Disc. P., theMorgan County Ju- engaged in conduct in- engagedinconduct alsoadmitted in the Office ofGen- theOffice Ala. R.Prof. C. theagreed judg- was DISCIPLINARY NOTICES a/k/aLynn issueda order of was re- On • • • lawyers. These advanced referral feeswere scheme involving payment of “advanced referral fees” but negligently, inanimproper solicitation participated Crowder Prof. 2015 for violating Rules7.1(a),7.2(c),7.3and8.4(a), lic reprimand withgeneral publication onSeptember18, two trusts forto aclient andherhusband (e) and8.4(g), 2016 for violating Rules1.3,1.4(a)and(b), 1.5(a),1.15(b) and 8, public reprimand withoutgeneral publication onJanuary Huntsville attorney notice of appeal ineachmatter. [ASB No. 2015-600] to missed bothappealsdue stemming from adrugarrest. The represent aclient onconcurrent appealsofacivilforfeiture 28, found that Belser’sthe court to failed brief were porated that facts der oftheclient onmultipleoccasions andmistakenlyincor- for c of General Counselre- 29,2015,theOffice about January 2016 for violating Rules1.6and8.4(g), 8, public reprimand withgeneral publication onJanuary attorneyBirmingham neysby enlisted orfirms was were cases to firms licitation. Degaris’s alsopaidotherattorneys firm and/orlaw Conduct, bama Rules ofProfessional at person asacontact participated before thematterswere to lawyers Vestavia attorney over adequate accountingto ofthetrustandfailed two trustee ofthe $1,000) feeto beganchargingformed a$500(and later when Burwell the premium payments. However, theclient was notin- charged afee of$150pertrust, peryear,to eived copies ofscreen shotsfrom alawyer-rating website. termination ofparental rightscases, misstated thegen- Ala. R.Civ.Proc by conducted notdisclosedintheadvertising children,were who C. to dividendsdue Degaris was a partner in the firm ofCory, inthefirm was apartner Degaris Watson, advertise for caseswiththeunderstandingthat advertise such & DeGaris PC. &DeGaris While apartner, unknowingly, Degaris generate additionalcasesinviolation ofRule7.3 to bereferredto handletaxreturns andothermatters asthe Ala. R.Prof. C. Annesley Degaris Hodges . to alsofailed trusts. Burwell In aseparate In case, was Belser retainedto Jackson Parker Burwell thetrust. [ASB No. 2015-189] steven from anunrelated case.As referredto at minors Degaris’s [ASB firm. No. 2014-1592] the firm, butthearrangement thefirm, Belser’s failureto Burwell createdtwo Burwell DouglasEversole court ofcivilappealsdis- court that time. Initially, Burwell the firm, violating thefirm, through thisimproper so- Degaris’s Degaris firm. benefitthecouple’s Po.C. Ala. R.Prof. by used comply with Rule handlemaking fileatimely received apub- was provide an timelyturn irrevocable issueda theattor- received a these aresult, Ala. R. to On or two Ala- Smy6Lyu 42/6 : P Pg Page2 PM 8: 4/27/16 ASBmay16_Layout 1 • employeesto becauseKeaheyfailed informationto andfailed matter andpromptly comply withreasonable requests for keep theclient reasonably informed aboutthestatus ofthe a the course ofthisrepresentation,to Keaheyfailed hiredby (b), tober 30, 2015 for violating Rules1.4(a)1.5(c)and5.3(a) ceived apublicreprimand withgeneral publication onOc- attorneyBirmingham man upboy.” [ASB No. 2015-244] Eversole alsotoldto theclient to due client hadbeen upinthelooneybin”“locked for months also hadadivorce case. Eversole alsorevealed that the the client hadbeencharged withDUI,adrugcharge and stated that theclient was ignorant andthenrevealed that confidential information. Eversole’s In posted response, he hisformer client andrevealingsponse attacking to sponded posted an anonymous negative review. Eversolere- their lawyers. Onthewebsite, aformer client ofEversole’s The written contingency fee written contingency contract withtheclient,to failed Ala. R.Prof. C. website allowsto clients “numerous andsevere” psychological conditions. to aclient thenegative reviewby In or about January 2009,Keaheywas oraboutJanuary In fileanasbestos-related lawsuit. During grover properly supervise hisnon-lawyer properly supervise postcomments regarding Patterson Keahey, Jr. “show and somefortitude re- postinganonline review almostallof enter into re- Saginaw ingeborge rhodes attorney Nancy • Uponsuccessful completion ofatwo-year probation for • have ofwhichshould its terms andconditions, Rhodes afact intoclient didnotqualifyfor theUnited States entry under erred infilingtheFormRhodes I-130Petition becausethe tion for Alien Relative ontheclient’s behalf. However, filed aU.S. Citizenship andImmigration Form I-130Peti- ing was cancelledat in Atlanta for theremoval proceedings. However, thehear- initially accompaniedto theclient tently represent aclient onimmigration matters. Rhodes to against Rhodes, alleging hadfailed that Rhodes Prof. 2016 for violating Rules1.1,1.4(a)and(b) and8.4(g),Ala.R. 8, public reprimand withgeneral publication onJanuary ment inhispresence. [ASB No. 2012-375] signed lease withoutthelessororlesseesigning thedocu- 18,2012,Murphy notarized a 2016. OnoraboutJanuary 8, public reprimand withgeneral publication onJanuary C., Centreville attorney Lynn michael murphy violating Rules1.2(d),8.4(a),8/4(c)and8.4(g),Ala.R.Prof. appropriated money. non-client [ASB No. 2013-1923] the correspondence mis- inthismatter andhisbookkeeper . On or about October 6,2014,acomplaint was C.OnoraboutOctober filed beenaware. [ASB No. 2014-1458] thelastminute. Thereafter, Rhodes theImmigration Court was received a www.alabar.org issueda compe- L 203

THE Alabama Lawyer Smy6Lyu 42/6 : P Pg 4 Page2 PM 8: 4/27/16 ASBmay16_Layout 1 204 THE Alabama Lawyer ingham’s Sixteenth Street Baptist Church. convictions for the 1963bombing of Birm- Frank Cherryon appeal from his murder Starrett successfully prosecuted Bobby General. Among other casesfor the office, appointment and criminal practicein Supreme Court, and was engagedcivil in Justice Mark Kennedy onthe Alabama staff attorneyto Alabama School of Law. Starrett servedas courts.is He in habeas corpus sents the statein general for the State of Alabama andrepre- Marc A. Starrett sumer andcommercial sents consumers andbusinessesin con- actions andcomplexlitigation. school, where hetaught coursesin class served asadjunct professor at the law of trict Alabama. From 2000-09, Green States District Court for the Northern Dis- clerkto Alabama School of Law andaformer law cum laude Greenin LLP F. Wilson May 2016 the Hon.Robert Green graduate of the University of Marc A. Starrett to F. Wilson agraduate of the University of Tuscaloosa.is He the Office of the Attorney Justice Kenneth Ingram and criminal appeals and all state andfederal is is anassistant attorney apartnerin litigation. Green Montgomery before B. Propst, United Herepre- Fleenor & a

summa exceptionto settlement becauseRegions fell withinthe property-damage “financial institutions” intheDeepwaterproperties Horizon spill;Regions was notaclassmemberintheBP judicataRes didnotbarRegions’ claimsagainstBPforto damages attorney fee. ate victim’ssured tort advance didnotcre- recovery from oftheLambert thetortfeasor Since aUIMinsurer doesnothave asubrogation advance, interest in- inaLambert State FarmEx parte Mutual Auto.Co. Ins. Common Fund; Uim baffling circumstances. was Though itwas notdefinedinthepolicy, the “mysterious disappearance” exclusion St. insurancemarine derived any benefitfromthat sub-contractor theupstream contract. putes between thesubcontractor andthecontractor, and(b) there was noevidence because (a)thearbitration agreement intheupstreamto contract appliedonly to pursuant between contractor andsub-contractor could notbecompelledto Sub-subcontractor 2016) Enterprises,v. LLCDannelly Arbitration v. Regions Bank res Judicata Supreme Court From rECENT CiViLDECisiONs Paul FireCo. Ins. &Marine acommon fundfrom which insurer was requiredto notambiguousandwould puzzlingor includeany underunknown, lossarising THE APPELLATE CORNER classmembership. theAlabama PLC BP No. , PalmNo. Grading, Beach Inc., 1141170(Ala. Jan. 29,2016) v. No. Britt, 1140423(Ala. Jan. 29,2016) No. , arbitrate underanupstream contract 1141039(Ala. Jan. 29,2016) a third-party beneficiary theory beneficiary athird-party pay its share ofinsured’s 1140504(Ala. Jan. 29, Regions-owned dis- Smy6Lyu 42/6 : P Pg 5 Page2 PM 8: 4/27/16 ASBmay16_Layout 1 defective man-madelake. ated Countyto Interests ofjustice required atransfer fromSt. ofaction (Ala. Feb. 5,2016) Group,LLC,No. Design Engineering Ex parte Venue; Forum Non Conveniens urged thelegislatureto oftheresult,unfairness Justice Bolin’s specialconcurrence expirationafter ofthestatute. Acknowledging theperceived probate didnotenter theorder court issuingletters until whenhefiledthelatter,wrongful death action where the yearto statute lackedstanding ran nevertheless administration before andcommenced civilaction two- the Personal representative whobothfiledpetitionfor letters of out opinion) 1140581 (Ala. Jan. 29,2016)(Marvin v. Marvin v. Alvarado Appointmentto Wrongful Death;No onwhichthedefendants anallegedly hadconstructed No. Health, Healthcare forBaptist Authority Shelby County, where plaintiffs’ was situ- property No. Kidd, 1140706(Ala. Jan. 29,2016) suit Timely Filed amendthewrongful death statute. relation ofPr Back was affirmedwith- 1141219 bring Clair Montgomery, AL|334.262.1788 to him negate reasonable reliance becauseitshouldhave alerted training materials didnot agent initsextra-contractual to decision into representations fraudulently inducedto theplaintiff alleging thatbeen madedoesnotbarafraud oral action mis- statement inacontract that nootherrepresentations have clude reliance oral onearlier misrepresentations, becausea merger andintegration clauseinthecontract didnotpre- concentrating onsellingFarmers policies);(2)presence ofa his relationship withindependent agency’s business(i.e.,by hereasonably reliedby in anindependent agency; that hecould become aFarmers agent whilecontinuing work agent from reasonably relying onallegedmisrepresentation fraud claim,holding:(1)Agent’s at-will status didnotpreclude ers’ three arguments for judgment asamatter oflaw ona intheresult)ing, concurring rejected Farm- withJustice Bryan In 12, 2016) Farmersv. Ins. Exchange Fraud; reasonablereliance Two Fitted Suits a Foremost apre- block-quoted thecontract (theplurality per curiam per 1717 CarterHillRd. Mon-Sat 9am-6pm aFarmers ruleagainstmaintaining anoffice inanother Expertly UP. SUIT U establishthispoint); and(3)statement availableto www.TLRClothiers.com opinion, thecourt’s (four plurality justices join- Two with outstandingqualityanddetail, tropical-weightwoolsuitsmade ideal foryear-round wear. No. Morris, Auburn, AL| 127 EastMagnoliaAve. 1121091(Ala. Feb. Mon-Sat 10am-6pm 334.321.4962 altering www.alabar.org enter 205

THE Alabama Lawyer Smy6Lyu 42/6 : P Pg 6 Page2 PM 8: 4/27/16 ASBmay16_Layout 1 206 THE Alabama Lawyer May Civ. P.19for failureto failureto will, ascontemplatedby join asadditionaldefendants allpersonsinterested inthe It v. Ussery Will Contests dure orpersonfor providing notice was identified inthepolicy. itselflisted theIAas the policy “agent,” andnootherproce- parent for providing authority notice ofclaimswas issueoffact; Whether insurer heldindependent agent (“IA”)to out No. v. Inc. Service, Cleaning Southern insurance; Notice legedly devalued inthe1980sthrough alterations. 1970s for displayat toric furnitureto Twenty-year ruleofreposeby barred claims (Ala. Feb. 12,2016) v. Thomas JeffersonFoundation, Inc. Trial Procedure; ruleofrepose were and agents whotrained himtestified that theyhadnever seenit within training materials, andbothagent andthefarmers insurance agency, was deep buried becausethepolicy did not access his online banking andhadneitherInternet did notaccess hisonlinebanking where thecustomer portal, of terms onanonlinebanking Bank’s postingofanarbitration agreement withinachange v. Moore-Dennis Arbitration; Changes of Terms favoring arbitrationicy anddisfavoring awaiver finding. invoke thelitigation process, inlight ofthestrong federal pol- conferencetrial andfilingcounterclaims, didnotsubstantially three separate pleadings, movingto twice HGCH’s inthecase, whichconsisted participation offiling 1141280 (Ala. Feb. 19,2016) Hoover Generalv. Contractors-Homewood, Inc. Arbitration; Waiver (Continued 2016 to isnotfatal 1140870(Ala. Feb. 19,2016) join those parties require adismissal underAla.R. jointhoseparties TerryNo. , notaware ofit. from page205) awillcontest that thecontestantto failed Franklin, TJF Monticello, furniturewere after items 1141070(Ala. Feb. 19,2016) underagreements entered into inthe joinindispensableparties. Ala.Code No. 1131142(Ala. Feb. 26,2016) Essex Insurance Company, 43-8-200. Nordoesthe No. , Jordan continue thepre- lendersofhis- THE APPELLATE CORNER Key 1140528 create ap- No. , al- assentedto agreement), was notsufficient evidence that thecustomer by change ofterms access oremailandwhere thebanknever sent anotice of through “passive ratification” causeddaughter’scompetency signingto to sufficient tally incompetent (painmedication influence was not soning (1)there was noevidence that theresident was men- The ment (shewas undertheinfluence medication). ofheavy tally incompetentat compel arbitration, theresidentto claimed resident. After theresident suedandtheoperator movedto representative’s representationto ofherauthority vided that operatorto hadtheright ment asresident’s representative,”“legal andagreement pro- Nursing homeresident’s daughter signed arbitration agree- (Ala. Feb. 26,2016) NursingCentersKindred East,v. LLC Capacity Arbitration; NursingHomeContracts; to damus relief court anddirected thetrial judgment. The denied summary fellow suedDOC,warden prisoner andofficers. The by PR ofdeceased whodied from prisoner stabbinginflicted Feb. No. , Dept.ofCorrections Alabama Ex parte immunity to never shifted claim,theburden ofproduction ment onthenewly-asserted that becausedefendant never moved judg- for summary dismissed thecase. The subsequently judgment granted onallclaimsand summary to motion judgmentplaint, butdefendant didnotamenditssummary negligence claims, plaintiffson certain amendedtheircom- While defendant’s judgment motionwas pending summary v. Fleming Judgment Proceduresummary court reversed court’s court thetrial denialofarbitration, rea- 26,2016) cover claim.The thenewly-asserted Co. Lead Sanders thechangeofterms. opinion) (plurality prove plaintiff onthat newclaim. mental incompetency) and(2)resident’s mental incompetency) mail(ascontemplated intheaccount thetimedaughter executed theagree- supreme court reversed, supreme court holding , No. (Ed:apparent authority?) supreme court granted supreme court man- 1141111(Ala. Feb. 26,2016) rely onthelegal No. Jones, dismissthecase, bindtheresident have beenmen- 1141424(Ala. trial court trial 1140871 trial court trial act for act the Smy6Lyu 42/6 : P Pg 7 Page2 PM 8: 4/27/16 ASBmay16_Layout 1 march 4,2016)(plurality opinion) No. Inc. , Properties, Hubbard Ex parte Wrongful Death; Parties concerningdisseminate thestudent. thereports indetermining howto forwithintheirauthority nity acting nated information. Held:defendantswere readand instead itandthen dissemi- aideopenedreport, nate student’s disability, whereto directed aide principal for (who was determinations inchargeat ofdisability andteacher principal ofminorstudent suedacting Mother TrimbleNo. Ex parte , immunity liberate indifference. This panelopinion. isaplurality to tled investigationafter were incident ofaprior and(3)officers in returning theperpetratorto prisoner under immunity state-agent 14 oftheAlabama Constitution,were (2)officers to holding (1)DOCisentitled failureto written report concerningto student written report qualified immunity on section 1983claimsbasedonde- onsection qualifiedimmunity OPTIONS YOU Y TOT !" " ! ! ! " ! ! ! ! !

safeguard confidential medicalinformation of O OU

LIVE LIVE LIVE THE WAY 1150029(Ala. Feb. 26,2016) ! " Cranman absolute immunity underSection absolute immunity ! " WANT

for theinmate population

WWANT 1141196(Ala. exercising judgment Even THE W to entitled certain teachers, certain vE en ifthew iis is s to entitled cr cr

creating your way you iftheway re ! e school) a AANT ! ! dissemi- tin immu-

enting " g

aay WWA y y y y ! ! og y y ur o oy own as personalrepresentative ofestate, was anullity. his estate), county administrator after hadbeenappointed to purporting Wrongful commencedby death action funds over theprecedingto 12months mine whethertheprisoner “could have saved” sufficient should back”“look intheprisoner’s account prison to sex being sought againstallAlabama judgesregarding same- proceedingthis original-jurisdiction inwhichrelief was The No. ex State ofAlabama Ex parte marriage same-sex forma pauperis to considering whether and(2)acircuit court court bama PrisonerAct Litigation Reform releaseinmates fromto pursuant seeking prison by over filed (1) appellate jurisdiction actions No. Cook, Ex parte Prisoner Litigation w want wn p AAY marriage. 1140460(Ala. march 4,2016) court dismissedallpendingmotionsandpetitionsin court path. au n t Y a

! ! ! !

act as act “attorney infact” for thedecedent (not to status 1140610(Ala. march 4,2016) apro se rel. Policy Institute, Alabama prisoner forprisoner civillitigation lieswiththesupreme spouseofdecedent, pay thefilingfee. incarcerated theAla- www.alabar.org grant in deter- 207

THE Alabama Lawyer Smy6Lyu 42/6 : P Pg 8 Page2 PM 8: 4/27/16 ASBmay16_Layout 1 208 THE Alabama Lawyer May ally endedsuchpayments. pay”“back for which employee during theperiod unilater- to benefitsand temporary-total-disability reached employer MMI,directing to court’s(2) trial holding, basedonemployee’s nothaving conditions accident and andnotpreexisting arthritic the-job that needfor employee’s surgeries was theresult knee ofon- court’s (1)thetrial Substantial evidence supported findings Civ. Reed Ex parte Workers’ Compensation ofCivil Appeals Court From ployees ofpremises owner hadnever beenontheroof. ence repairing that roof underhireby on roof, where contractor hadsignificant previous experi- roofing contractor oritsemployees ofpreexisting condition Premisesto owner hadnolegalduty march 18,2016) v. BrickCo., Alabama South Inc. Premises Liability workers’ compensation exclusivity. tions inworkplace, even intentional claims,were Claims againstemployer for failureto 1141252 (Ala. march 18,2016) Rock WoolNo. Ex parte Company Manufacturing , Workers’ Compensation v. Medicaid Agency Alabama Eligibility medicaid $2,000-asset threshold. disqualified the applicant from benefits underthe Medicaid distribute potentially theentirety andinterest, of principal applicant for herown benefitandallowing thetrusteeto in a$32,000-valued residence,by established properly determined thatALJ atrustholdinghalf-interest Civ. (Continued 2016 App. Jan. 29,2016) App. Jan. 29,2016) from page207) No. Inc. Contracting Services, , theAlabama No. , Hardy No. , Carwie reinstate payment of warnindependent maintain safe condi- owner andwhere em- 2140565(Ala. alsopay employee 1130345(Ala. theMedicaid 2150230(Ala. THE APPELLATE CORNER by barred when Wall becameaware was that issued. certificate of mandamusand(2)therecord contained noevidence of one year passedfromto was issued timecertificate cate reliefto Wall mandamus (redemptionee) was nottimelyinseeking 2140837 (Ala. Civ. App. Feb. 12,2016) Wallto Challenging redemption Tax “may” court the trial feesto hasdiscretionto Circuit court 2140675 (Ala. Civ. App. Feb. 5,2016) v. Ross CondominiumLaw agreement becausetheagreement unambiguously provided by erredCircuit court v. Brown reformation; Ambiguity andmutualmistake for 13 cotenants couldto notbeequitablydivided Trial parcel properly concluded that with (1)one-acre court v. Barrow forsale Division caused Cadenceto the referee-appointment procedure in dence, rejecting Wall’s argument that Cadence’s failureto owe dence) didnot Probate properly determined that redemptioner court (Ca- 2140683 (Ala. Civ. App. Feb. 12,2016) Wallto Tax from sale proceeds. ing cotenant who hadpetitionedfor salewasto entitled appraisercourt-appointed and(3)counsel for thepurchas- by hadbeenappraised price for whichtheproperty tenant, whotendered thetotal amount into ofthe court ing apleadinginAlaFile, oncounsel for served Wall. dence complied withthenotice provisionsby ofthat section division, (2) the property shouldbeconveyed division,(2)theproperty to ofredemptionto sale redemption; sale Timeliness in sale redemption sale owner underAla.Code WestNo. Wind Inc. Condominium, Association, v. Wall Inc. Properties, v. Wall Inc. Properties, challengetheprobate court’s issuance ofacertifi- No. Butts, , Myhand waiveto itsright No. for insurance andimprovementsto 2140962(Ala. Civ. App. Feb. 12,2016) award fees “in reforming along-term lease-purchase Wells (redemptioner), where (1)nearly 2140761(Ala. Civ. App. Feb. 12,2016) allow ordisallow attorney’s § 35-8A-414, whichstates that WellsNo. Fargo, N.A. Bank, No. Cadence, N.A. Bank, anappropriate case.” to object Ala. Code theamounts. Ca- § order asale 40-10-122(d) thetime co- one the resi- follow fees fil- Smy6Lyu 42/6 : P Pg 9 Page2 PM 8: 4/27/16 ASBmay16_Layout 1 to meeting ofthe mindswithrespect judgment grantedmary and(3)there was noevidence ofa to entitleddebtor was actually evidence, andbecausedebtor testified that hehadnocontract, intotract evidence, contract claimwas notbased on substantial year statute oflimitations), (2) becausebuyer didnotoffer con- brought incontract andnotforto openaccount (subject judgment,cross-motions for held:(1)claimscould be summary contract andaccount stated, where buyer anddebtor filed In mar. Cook Judgment Practicesummary argues thethree andoffers factors. evidence supporting setting asidedefaultjudgment only Trial analysis ofthree mustconduct Kirtland court v. Poole Default Judgments wise landlockedparcel. whichconstitutedperiod solemeansofaccessto demonstrating continuous useofadriveway over a20-year by Easement v. Finley by Easement formerly defective work was nota item“last ofwork.” completion of corrective workto item “last ofwork”; statement oflieninprobate withinsixmonths after court Under Ala.Code No. Masseyv. AsphaltPaving, Inc. materialmen’s Liens the42 not fileduntil after (1) Appeal was timely, notice even was thoughtheactual v. Okafor Civil Forfeiture; Appellate Procedure or constitute evidence ofmutualmistake. intheparties’crepancy intentions doesnotcreate ambiguity would have beenpaidwell before expiration ofthelease).Dis- to terms purchase improperly found (thecircuit court thepayment that allrent payments could beconverted towardto option based onstatements obtainedinviolation ofMiranda. was that anappealwas beingtakenand(2)there tify allparties eting statement informationto contained thenecessary by action 2140680(Ala. Civ. App. march 4, 2016) substantial evidence that seizure ofcashoccurred 11,2016) v. Midland Funding Midland LLCNo. , Monteiro, create becausethepurchase anambiguity price McCoy, No. State, credit-card debtbuyer againstdebtor for breach of by prescription was supported No. § 35-11-215,general contractor mustfile Prescription No. 2150031(Ala. Civ. App. mar. 11,2016) 2140649(Ala. Civ. App. Feb. 12,2016) 2150028(Ala. Civ. App. mar. 11,2016) nd day, have hiscross-motion for sum- Lee becausecontestant’s dock- 2140786(Ala. Civ. App. Land Development, Land Inc., any restatement ofan after party seeking relief seeking party after evidence another- factors forfactors repair three- no- debtor wasto entitled amount for owed account necessary stated claim,and, thus, after previousafter warning.” to fusal under whichcompensation shallbedisallowed “forre- the compensationto benefitspursuant Employee was disqualifiedfrom receiving unemployment- 18, 2016) Austal USA,v. LLC Unemployment Compensation way stood inhis diligently, circumstance and (2)that someextraordinary gant establish both “(1) that hehasbeenpursuinghisrights Equitable tolling ofastatute oflimitations requires that aliti- 25, 2016) TribeMenominee v. of Wisconsin Equitable Tolling States Supreme Court From at tice becauseofhishaving oftrial medicalprocedure serious by to failed missal forwant Trialby erred court 2016) v. Puckett forDismissal Want thetimenotice was sent. attorney affidavit stating that attorney didnotreceive no- to submit appearfor Rule59motionwas trial; accompanied No. , Dunkle theUnited ofprosecution plaintiff andhiscounsel after andprevented timelyfiling.” orcooperate test withabloodorurine No. DOL, denyingto Rule59(e)motion summary judgment. summary 2140880(Ala. Civ. App. march 18, ofProsecution 2141072(Ala. Civ. App. march No. US, Ala.Code 14-510(U.s. Jan. § 25-4-78(3)a, vacate dis- www.alabar.org 209

THE Alabama Lawyer Smy6Lyu 42/6 : P Page21 PM 8: 4/27/16 ASBmay16_Layout 1 210 THE Alabama Lawyer May Appeals Circuit of Court From by Citizenship ofanREITfor isdetermined diversity purposes (U.s. march 7,2016) Amercold Realty Trustv. Diversity Jurisdiction had previously beenadjudicatedby give The V.L.v. Case) Full Faith Adoption andCredit (same-sex for inclusioninhealthcareagency database. payments relatingreport to law to As 29, 2016) v. Gobielle ErisA Preemption up program. vesselmaritime was removedto pursuant tion withoutprocedural dueprocess, where plaintiff’s live-in Plaintiff’s complaint 1983depriva- adequately pleadedsection 2016) v. Hoefling 1983; section Takings tion (“MSHA”) relatingto posed regulationby The 25, 2016) v. MiningAssn. National AdministrativeLaw (Continued 2016 thecitizenship ofitsmembers. requiring certain entities, requiring includinghealthinsurers, certain to court reversed court theAlabama Supreme Court’s refusalto Court upheld(inacomplex 83-pagedecision)apro- Court fullfaithandcreditto employee benefitplans, ERISApreempted Vermont No. E.L., Liberty MutualCo. Ins. Liberty No. , ofMiami City from page209) 15-648(U.s. march 7,2016) theEleventh the Mine Safety andHealthAdministra- theMine minedustmonitors. ConagraNo. Foods, Inc. , No. DOL, the same-sex adoptionwhich thesame-sex healthcareto claims 14-12482(11thCir. Jan. 25, No. , 14-11942(11thCir. Jan. aGeorgia court. 14-181(U.s. Feb. amunicipalclean- THE APPELLATE CORNER astate 14-1382 old valuation data withassumedappreciations. methodofvaluationby parable-sales highest andbestuse, butimproperly deviated from acom- Feb. Palmerv. Ranch Holdings, Ltd. Tax; Conservation Easements; Valuation bursement charges againstBCBS. ERISA preemptedby claim 10459 (11thCir. Feb. 5,2016) InsuranceGables Recovery, ErisA drome sonadequately pleaded failureto Landlord’s threateningto 18, 2016) v. Hunt FairAct Housing the “contraceptive mandate” oftheAffordable CareAct The No. Eternal Word Televisionv. Inc. Network, Affordable Care Contraception Act; mandate astagehandunion. certifying boardby erred independent contractors andnotemployees; thus, the ment through areferral Crew service, OneProductions, are Local hired freelance stagehands whoobtainedemploy- Cir. v. Inc.Crew Productions, One Contractor relations;Labor Employeevs. force ney’s fees are recoverable onlyina “successfulto action damagesand(2)attor-damages absent afindingofactual 2712 (the “SCA”),to (1)there isnoauthority Under theStored CommunicationsAct, Feb. Vista Marketing,v. LLC statutory DamagesAbsent Damages Actual Tax Court properly valued conservation easementat properly valued conservation Court Feb. 3,2016) 14-12696(11thCir. Feb. 18,2016) Court upheldagainstFirst Court Amendment attack andRFRA 4,2016) 5,2016) liability.” No. AIMCO LP, Properties, directing Crew directing to One No. Burkett, evict tenant withDown’s evict Syn- assignee ofprovider’s for reim- v. Inc. No. NLRB, No. CIR, 14-14085(11thCir. Feb. No. BCBSofFlorida, 14-14068(11thCir. employing adecade- hold an election and holdanelection 18U.S.C. §§2701- 14-14167(11thCir. 15-10429(11th , State ofAlabama provide reasonable independent award statutory parcel’s (“ACA”). en- 15- Smy6Lyu 42/6 : P Page211 PM 8: 4/27/16 ASBmay16_Layout 1 specially concurred, callingfor enbanc the inconsistent positionswas notdispositive. Judge Tjoflat Circuit law, whethertheplaintiff succeeded inmaintaining the 21 months after Title VII case).Underexisting Eleventh was filed schedules(thebankruptcy Chapter 7bankruptcy VII claimwhichtheplaintiff/debtorto failed Court’sruptcy refusalto The 2016) v. Slater Judicial Estoppel pert’s it. opinionandevidence supporting Daubert improperly for disallowed lackof court expert District Feb. v. Seamon Firearm Daubert Liability; manufacturer about possibleneedfor accommodation. reasonable housingproviderto prove tiff mustpleadand accommodationto panel affirmed the district court’s thedistrict panelaffirmed reversal oftheBank- 17,2016) No. U.S.Steel Corp., +1% , %8 ex- mischaracterized the court district reliability; Co. Remington Arms ,' !%1% +%5 , - *"6 %7 %!- *4 5 6%1 *+%- %1%3 , *",' .+%+ , - *+% ,% *+1%$ %'2!11 "*+ , -.+% /0% apersonwithdisability.An applyjudicialestoppelto circumstancesto sufficient 12-15548(11thCir. Feb. 24, makeappropriate inquiries No. , 14-15662(11thCir. review. discloseinher FHAplain- bara Title cause to necessary material fact prove plaintiff must Rule 10b-5(b) march 1,2016) v. Fried securities parent ontheface” ofthedocuments. ance; under assignee liability TILA islimitedto servicer’s failureto Assignee isnotliableunderthe Truth inLendingAct Evanto TiLA forfactor the defendant’s adverse employment action. plaintiff and(2)theprotected was amotivating characteristic fendant took anadverse againstthe employment action work; 533 F.3d 381(6thCir. 2008)–notthe evaluated underthetest from Mixed-motive claimsbasedoncircumstantial evidence are Cir. v. Quigg Title Vii mixed motive Feb. 22,2016) thus, plaintiff mustoffer substantial evidence that (1)de- v. No. StiefelLaboratories, Inc., No. Dist., School ThomasCounty No. FNMA, " #$ %& '"! ("$"#) ! provide theborrower withapayoff bal- 15-11450(11thCir. march 1,2016) keepotherstatements from being v. White that defendant omitted McDonnell Douglas McDonnell Baxter Healthcare Baxter Corp., 14-14790(11thCir. 14-14530(11th violations “ap- www.alabar.org for a frame- 211

THE Alabama Lawyer Smy6Lyu 42/6 : P Page212 PM 8: 4/27/16 ASBmay16_Layout 1 212 THE Alabama Lawyer May Eleventh Amendment immunity. The 10, 2016) v. Nichols Eleventh Amendment taxes ifshefilesatimely protest. by termination Taxpayerto isentitled 2016) v. Romano-Murphy Tax without prejudiceto soas able inference malice. ofactual Dismissalshouldhave been to opinion), plaintiff failed cle presented statements (notjustnon-actionable offact though reasonable reader could arti- conclude that subject properly dismisseddefamation complaint; court al- District 7, 2016) v. Michel Defamation failureto tiff’s focusing proposed instruction solelyondefendants’ properly rejected plain- court materially misleading;district States Supreme Court From rECENT CrimiNAL DECisiONs ices for that employer whileoffduty.” serv- whileperforming sheriff oromissionsofthedeputy acts Stat. at deputies moonlighting asprivate guardsCounty andoff-duty 13722 (11thCir. march 17,2016) Kendallv. LLCBlue Martini ConstitutionalLaw (Continued 2016 nightclubwere Alabama State ofthestate Barisanarm to entitled § Procedure 30.2905makesaprivate employer “responsible for the NYP Holdings, Inc., disclosematerial information. No. State, Bar Alabama from page211) theIRSofherproposed for liability trustfund theUnited to entitled No. CIR, a pre-assessment administrative apre-assessment de- allow re-pleading. to giving rise pleadfacts Miami Dade County, Dade No. Miami FL, by insuit indemnity No. 13-13186(11thCir. march 7, 15-11453(11thCir. march 15-13248(11thCir. mar. THE APPELLATE CORNER patrons; reason- Fla. 14- late life-without-parole sentencesmandatory for juveniles vio- collateral review)to The v. Montgomery Juvenile Convictions; Life withoutParole statute. additional essential element notpresent inthecharging heightened theburden ontheprosecutionby whicherroneously instruction inajury elements setforth against theelements ofthecharged crime, notagainstthe ofevidence challengeshouldbeassessed Sufficiency v. Musacchio Law Criminal scription. Defendant’sscription. ofharboring, restraining acts and to and guidelines both fairnoticeto are notunconstitutionallytrafficking vague, for theyprovide The 2016) v. Alonso Human Trafficking AppealsCriminal From wouldlenity require favoring aconstruction thedefendant. fenses, createdat phrase andthestatute’sto application qualifier principle”), together withthenatural reading ofthe (the construction competing ofstatutory principle “series immediately preceding phrase. The quires thatto alimitingphrase bedeemed principle construction Statutory “rule oflastantecedent” v. Lockhardt statutory Construction theEighth Amendment. Court gave Court retroactive application (for casesonstate provisions ofAla.Code State, Cr-13-1546(Ala. Crim. App. Feb. 12, No. US, No. US, the Court of theCourt No. Louisiana, least an ambiguity whichundertheruleof leastanambiguity aidofficialsin theenforcement ofthat pro- to thepublicas v. Miller 14-8358(U.s. Feb. 29,2016) 14-1095(U.s. Jan. 25,2016) § 13A-6-152 prohibiting human Alabama,whichheldthat 14-280(U.s. Jan. 25,2016) the conduct proscribed theconduct dissent argued that childpornography of- modifyonlythe injecting an injecting re- Smy6Lyu 42/6 : P Page21 PM 8: 4/27/16 ASBmay16_Layout 1 tence Act, enhancement undertheAlabama HabitualFelony Offender under Ala.Code Conviction forto first-degree animalcruelty 2016) v. Simons Habitual Offender by nesses wasto insufficient unsubstantiated dismissal ofthedefendant’s concluding indictment, that his remaining Barker sumptively prejudicial. However, analyzingthe after fendant’s andresulting was indictment trial deemedpre- 407 U.S. 514(1972),a17-month delay between theDUIde- For State speedy Trial in exchange for moneyfell withinthestatute. and coercingto thevictim her transporting thedelay. v. analysis ofspeedytrial underBarker purposes anditalsomayto notbeused v. underthat act. , Cr-14-1628(Ala. Pylant Crim. App. Feb. 12,2016) State, Cr-14-0335(Ala. Crim. App. Feb. 12, to § 13A-11-241 cannotbesubject claim thatto hewas unable factors, the court reversedfactors, court’s thecourt thetrial show that hehadbeenprejudiced enhance anothersen- perform sex acts perform adogorcat locatetwo sentence Wingo, wit- cannot bebasedsolelyuponhearsay. tion hearings, court’s thetrial to decision Though hearsay evidence isadmissible inprobation revoca- v. Marks Probation revocation the defendant’s statement resulting from that interrogation. tector him asecond time, inalie-de- resulting inhisparticipation rights, police initiated withhimandinterrogated contact thedefendanttion, findingthat after invoked hisMiranda The v. Jones Miranda v. Graham Child Abuse under Ala.Code showing ofsevere was notrequired physical for injury proof medical treatment for herchild’s multiplebroken bones;a child abuseconviction, basedonherwillfulfailureto State’s court reversed court thedefendant’s manslaughter convic- test. The evidence wasto sufficient State, Cr-14-1332(Ala. Crim. App. Feb. 12,2016) State, Cr-14-1666(Ala. Crim. App. Feb. 12,2016) State, trial court therefore court trial erred innotexcluding § 26-15-3. Cr-14-1652 (Ala. Crim. App. Feb. 12,2016) support thedefendant’s support revoke probation www.alabar.org seek L 213

THE Alabama Lawyer Smy6Lyu 42/6 : P Page214 PM 8: 4/27/16 ASBmay16_Layout 1 214 THE Alabama Lawyer L L May Desmond Toler V. Jane 2016 Floyd law law to from Gadsden and forth night lawat school did notstop there, asshewanted alaw career. While still teaching, sheenrolled in her master’s ineducation, degree herAACertificate butshe earned in1982.She next two birthing She thenbeganteachingat her. Shewentto torney, intheafternoons. After highschoolgraduation, law becameafulltimejobfor went time later.ther diedashort Shelived withagrandmother.To into maintained herenthusiasm for 55years. Shepackedreal meaningandachievement and achievement into hisorherlife.” the personwhomaintains enthusiasm for 30years isonewhopacksreal meaning peoplehavesiasm. Some enthusiasm for 30minutes, somehave itfor 30days, but was anhonorofloveher death. It anddedication. complex and detention center ofEtowah County loweredto only lawyer inEtowah County everto enforcement, shewas Jane”“Miss Shewas loved (evenby incourt). lawyers, administrative assistants, bailiffs, clerks, thoseincounty government andlaw To 23 years oflaw practice. V. Jane She againwentto back Her life was forged inadversity. Hermotherdiedwhileshewas inhigh school. Herfa- Dr. Jane Vaughn Floyd 28,2016,after was September28,1938anddiedJanuary born that 23years. lasted the next school. Shegraduated, passed thebarexam andwas admittedto herlife. ofdoing thoughtful thingsfor Shehadaspecialquality others. Norman Norman Vincent Peale once said, at “Everybody to high school in the morning andworked highschoolinthemorning intheoffice ofEdMiller,at- aGadsden sons, for caring herchildrento andgoing collegeat Birmingham School ofLaw School where Birmingham sheandfive othersrode back Floyd collegeat nightherundergraduate andearned degree ineducation. all of those who knew herinthelaw profession, allofthosewhoknew judges, Birmingham five Birmingham nights aweek for four yearsto Disque Middle School, where DisqueMiddle shetaught for 32years while theUniversity ofAlabama in1975andearned As haveat alloftheflags a teacher and then a practicing lawyer, ateacher andthenapracticing she MEMORIALS onetimeoranotherhasenthu- school. help support herself, helpsupport she the courthouse, judicial thecourthouse, half-staffontheday of all. Shewas the the practice of thepractice complete Smy6Lyu 42/6 : P Page215 PM 8: 4/27/16 ASBmay16_Layout 1 ing, loved lawyer andteacher. life you have lived.” those55years In shewas anoutstand- what you gather, butwhat you scatter of that tells what kind ticed what shepreached. Shelivedby want whatever youwant Janesaid, “I practice. that article In ond law teaching career andbeganherlaw whensheleft students, law associates andfriends. her life. Shesaidthat shehadbeenwell lovedby lawyer.way, Shegave herselfthat that ittookno shortcuts, hard, disciplinedworkto ment ofHumanResources. dren andprosecuting “deadbeat parents” for theDepart- way. legal life that struments inGod’s own hands.” Shelived herprofession and is acalling, notajob.An to ing was lawyerat said area withcases ofallshapesandsizes.from ofsociety every A dent that shecould solve theirproblems. Sheattracted clients whom shehadtaught) formed alineoutsideherdoor, confi- Gadsden Times intheGadsden There was anarticle She once wrote: remarkedJane often that shedidnotdread theendingof She taught othersinthelegalprofession that therewere Drew once Redden said, “Ours isaprofession It ofservants. In to made asuccess ofourlives. notbeafraid Do ofservice honorablewe dealinginallofourcontacts, then record andregardservice forwe ourfellow man.If many conceptsto atough, goodteacher andlawyer. was really intimidat- It herpractice, eachday, peoplewithtrouble (mostof others–itistheroadto to “A to go desireto work for them.” Shewas a livingexample. Sheprac- ofdiligence,to faithfulness court againstyour teacher.” court herdeath, “She taught meinmiddleschool. She succeed istakenfor granted, butthere are Shewas mosthappy representing chil- to success. theend, itismeasured In by do. The art, notabusiness. We art, contentment.” opportunities are there ifyou opportunities 60hoursaweek. tell kids that you tell cando kids duty, unselfishand themotto, “It’s about hersec- have a are always in- herfamily, beareal have not best friends–a gift ofGod’s gift best friends–a provision. We andstressful gave as andGod andDesmond hectic usBetty year life of married andoursecond yearwere oflaw school in August married ofthat year. andBetty Desmond first Our friendship. wife, My inJune1964and Laura, andImarried the University ofAlabama. We Helpline, Center. HouseDrugRehab andManna Inc. BandParents School High andwas founder andchairfor asthepresident oftheMurphySchool. alsoserved Desmond dentat tist church andCottage BaptistChurch. Hill Hewas PTA presi- Community. Hewas chairofthedeaconsat Council, Greater Safety Council Skyline Mobile andSouthern ontheBoard ofDirectors forHe served theNational Safety Judgefor ofMobile. Court theCity asMunicipal served own at onstaff served ucation from Baptist NewOrleans and Theological Seminary his wife of51years. Healsoreceived amaster’s of religious ed- insociologyandwhereceived hemetBetty, abachelorofarts ofAlabama, heremainedsity astrong LSUfan,wherere- he brother, Beryl Toler. Ardie Desmond Toler Fisher andGoldie Toler, and his and Evelyn Toler. Hewas precededby indeath pher Tice, (Bernadette) Toler andsixgrandchildren, ofMobile; Christo- ofFairhope Kavanagh Georgia; Elizabeth (John) andPeter Betty Toler, children ofMobile; John(Lisa) Toler ofDacula, Mr. home. Hewas 74years old. until heenteredMobile into rest Novemberat 24,2015 Desmond Toler we andImetin1963when Desmond involvedHe was very inhiscommunity, church andfamily. Even law 25,1941andpracticed in wasJanuary Desmond born law specializinginfamilyandchurch firm, law, Desmond both Phillips Middle School and School bothPhillips Middle Westlawn Elementary though Desmond gothislaw thoughDesmond degree from theUniver- Lauren Tice, several churches. Along withrunninghis Fran Toler, Joey Toler, Peter Toler, II, started a friendship–a forever afriendship–a started Tolerby issurvived beganlawat school haddinnerstogether; Sage Avenue Sage Bap- hisparents, hiswife, www.alabar.org his 215

THE Alabama Lawyer Smy6Lyu 42/6 : P Page216 PM 8: 4/27/16 ASBmay16_Layout 1 216 THE Alabama Lawyer May Admitted: Florence Cochran, Charles William 18,2016 Died: January Admitted: 1951 Selma Childers, miller meek Hon.Benjamin 11,2016 Died: January Admitted: 1980 Alabaster Dr. Brackin, (Continued on TV having ourown “Breakfast Patio,” onOur watching thegame to gether to came Desmond comings for “Breakfast onthePorch” replevin theball!” law rode inthehomecoming parade onaflatbed truckshouting withasteak breakfast withaspeaker,started we andthen coatsmorning andhats andthegirls alldressed up. We tures ofthefour andmeinourlongformal ofus–Desmond LSU that year! ley. The Bankstons, andwentto to eled played andwent bridge to Died: January 27, 2016 Died: January Admitted: 1972 Montgomery Hartley, gerald Wade, sr. 4,2012 Died: January Admitted: 1966 Birmingham Fernandez, Vernon Wilson Died: September22,2015 2016 For Part were Homecomings schoolcheerslike, them,repel“Repel them,makethem years,we andplaying cards into thewee hours. ofthat traditionwe continued as Baton andstayed Rouge withBetty’s family, the Bankstons stillfed useven thoughAlabama beat Tuscaloosa. Eventually,we 1970 from page215) Brice Herald attended theseminarsfor MCLEcredits We Montgomery onFridaywe Montgomery and sat asagroupat specialinlaw school. Istillhave pic- at thegame football gamestogether. We stayed inMontgomery, at thedreaded Death Val- thegame–always. law and school. Betty wentto back May Died: Admitted: 1974 Birmingham Ann Carrollrobertson, 18,2016 Died: January Admitted: 1960 Mobile reeves, WilliamBoyd Died: February 7,2016 Admitted: 1981 Birmingham Pitt, Charles redding 2,2015 Died: October Admitted: 1996 Greenville, SC Jr. LaDon, Phillips, Hon.Harry Died: February 1,2016 Admitted: 2008 Fairhope Davidmauritson, richard wentto- home- trav- 27,2015 anniversary party. Laura andIalsoattendedanniversary their50 Desmond alwaysDesmond didtherightthing. walked said, in,Desmond “Hello Barry.” died.drove Laura andI party. ding anniversary to thatwasthrilled able Desmond sions ofourchildren. concerns, for cases, for leadershipandwisdomfor deci- We from needingMCLEcredits. Hesaidhewould callmeback. “Sixty-five,” hereplied. Isaid, “Desmond, you are now exempt vorce callingmeoneyearDesmond andsaying, “Let’sto go together, like “Divorce on theBeach” Iremember inDestin. He was agiant ofaman:integrity, giant. spiritually My Desmond became very ill, alengthy andafter becamevery illness,Desmond Iwas consisted friendship Our ofpraying together over family didgotogetherto last visit with Desmond was lastvisitwithDesmond aSunday, justbefore he ontheBeach.’” Isaid, “Desmond, how oldare you?” MEMORIALS thebeachthat year. downto Died: January 28, 2016 Died: January Admitted: 1952 Birmingham Williams, Harold Henry 26,2016 Died: January Admitted: 1961 Huntsville Watson, HermanAustin, Jr. Died: December 27,2015 Admitted: 1977 Orange Beach Thomas, William Kenneth Died: December 28,2015 Admitted: 1982 Tuscaloosa smith, James Dwight 13,2016 Died: January Admitted: 1972 Enterprise rowe, C.Leavell,–Barry Montgomery seehimandBetty. When I Charles Warren attend our50 th wedding th ‘Di- wed- L

Smy6Lyu 42/6 : P Page217 PM 8: 4/27/16 ASBmay16_Layout 1 rEqUirEmENTs ArTiCLE sUBmissiON State Alabama to the to All tions arenot accepted. not are and only authors’ the in expressed Views to the to the bers of quotations. The editorial board reserves the the for responsible are Authors torial the board or format. A The any article submitted for publication. with of dpi) 300 least (at graph A double-spaced andutilizing endnotes andnot footnotes. a and sketch biographical brief to articles Lawyer thearticle. editor editor via email ( via editor to 13 is article typical ASB. Articles previously appearing in does not accept unsolicited articles from for for considered be Bar possible publication in publication possible Alabama State to encouraged are members for chosen articles [email protected] to to the to attributed be the of all citations and citations all of correctness publication must be submitted be must publication pages in length, in pages letter-size 18 Bar unless expressly so author must be submitted be must author recent color photo- color recent Lawyer Alabama The right the are publication

submit to Lawyer other publica- edit or non-mem- ) Word in www.alabar.org , articles its stated. reject edi- . 217

THE Alabama Lawyer Smy6Lyu 42/6 : P Page218 PM 8: 4/27/16 ASBmay16_Layout 1 218 THE Alabama Lawyer L L L May Civil Procedure Amendment Rules of ofAlabama Local Rules ofCourt–State for 2013Alabama Books sale: 2016 Bar Award Bar ofAchievement State at by These are available for purchase andState intheSupreme Court Law Library Alabama Rules ofCourt–State forBooks 2013 Sale: http://judicial.alabama.gov/rules/Rules.cfm. Contactat any staff member Public Services AL36104 Montgomery Ave. 300 Dexter ATTN: Sale Public Services–Book andStateAL Supreme Court Law Library Please mailacheckormoneyorder, madepayableto The cashorcheckonly. Note: All rulechangesandeffective dates are available Law Library, to: 2013AlabamaRules ofCourt–State IMPORTANT NOTICES books are forat sale (334)229-0563 withquestions. AL Supreme Court and ALSupreme Court $10each. Smy6Lyu 42/6 : P Page219 PM 8: 4/27/16 ASBmay16_Layout 1 by or obtained 2016. must complete andsubmitanawardby application for their size–large, mediumorsmall. Baytowne Wharf. theAlabama Stateduring Bar’sat 2016Annual Meeting to tributions recognizes localbarassociations for theiroutstandingcon- Achievement Local BarAward of [email protected]. To • • • The Local barassociations compete for theseawards basedon The eachcategory: community. The and pation onthecitizens inthat community; The vancing programsto The be considered be for thisaward, barassociations local followingto willbeused criteria Alabama State BarLocal BarAward ofAchievement Applications may bedownloaded from degree ofenhancementsto ofthebar’s andextentoftheimpact quality partici- by degree ofparticipation theircommunities. Awards willbepresented EdPatterson contacting at benefitthecommunity; theindividualbarinad- thebar’s imageinthe judgethecontestants (334)269-1515 or www.alabar.org may

6, Civil Procedure Alabama Rules of Amendment of that suchpersonshallnotberelated withinthethird degree to asubpoenaand which apersoncanserve to amendment increasingto to ofprocess is andthereturnservice ofservice of process; settingoutnew, specificrequirementsto as third degreeby persons designatedto designatedto ofprocess;waiver increasing ofservice theageofpersons the ageof16years; stating themannerfor acceptance or an incarcerated minor, from over theageof12yearsto personally,the ageofaminorwhomustbeserved including failureto defendant’sof defaultisapossibleconsequence ofaserved process, including, amongothers, providing that ajudgment to amendment Reporter Southern amending Rules4and45(b)(1) appearinanadvance sheetof amendment oftheserulesiseffective July1,2016.The sions,” andRule45(b)(1), amended Rule4, “Process: Provi- General andMiscellaneous “Quick Links–Rule Changes.” of theserulescanbefoundat by In to bloodormarriage two separate orders, theAlabamahas Supreme Court respond rather thananautomatic result; changing 60days thetimeframe for failure The ofservice. serve processto serve Rule45(b)(1) increasesto to changes Rule4makescertain to bloodormarriage dated onoraboutMarch 3,2016.The serve process serve notbe related withinthe The service. thepersonseeking Alabama Rules ofCivilProcedure. –Bilee Cauley, of decisions, reporter

http://www.judicial.state.al.us, 19years andproviding that Alabama Appellate Courts the party seeking service seeking theparty 19yearsat theage further provide further bemade;and service of service www.alabar.org orders over how text The L 219

THE Alabama Lawyer Smy6Lyu 42/6 : P Page22 PM 8: 4/27/16 ASBmay16_Layout 1 220 THE Alabama Lawyer May institute, visit For 2016 [email protected] more information about the J. Othni www.ali.state.al.us. Lathram but alsoreviews legislation fromto time filed. The work heavily involved inthework ofthecommittee. Cam Jones andSen. Mike Ward. committees,pellate judgesandthechairsofHouseSenate Rep. Judiciary reporter. The year that affected thisarea withoutany coordination oroverall inmind. direction were This group was formedat the group that isinvolved. Oneareato that lendsitself continuously studyandprovide improvements inthat area andhave continuity in complete asingleproject,butratherto an area ofthelaw andare formedto not ing committees. These committees cover hasformedInstitute anumberofstand- cause ofPenny’s hard work anddedication. zenswe ofAlabama, advisor anywere timethey dination oftheireducation andasatrusted judges around thestate through thecoor- servants, reer ofoneAlabama’s great public out firstrecognizing thetremendous ca- Family Law Matters served asagreatserved resourceto ofLaw. ofAlabama School sity Shealso of lawyers whocamethrough theUniver- that area oflawto rector oftheLaw Institute, shealsotaught to and inaddition great and dedication that was tremendous. Her tute’s history. Shebrought alevel ofskill oftheLaw project Insti- every on nearly Law retired withthe 36years after ofservice The The Over It to isimpossible Institute. that time, During sheworked concerned withthenumberofpieces oflegislationwere that by isdictated passionwas inthearea offamilylaw, committeeto breaks often into sub-committees committee ischairedby thepastcouple ofyears, theLaw committee forward itsown notonlybrings recommendations for legislation, Penny Davis. LEGISLATIVE WRAPZUP committee consists judges, ofnotonlypractitioners, butalsotrial ap- herwork asassociate di- more thanageneration concerns raisedto incaselaw andinreaction start thiscolumn with- start are allbetter offbe- On April 1,Penny OnApril therequest ofleadershipintheAlabama Legislature who inneed.As probate Dean NoahFunderberg Dean andPenny asthe Davis serves Rep. Jones, inthisarea, practice whohasanactive is citi- at time burn Teresa Penny Pictured Both sidesofPenny Davis Wilson, from Pictured therequest ofindividual legislators. and right) and Davis Tonya Norman, Bob above above Othni Lathram. address specifictopics. The thisapproach isfamilylaw. McCurleyand (center)and at are (retired) co-workersLinda the PennyDavis legislation that is State Watkins,Jill beingfiledeach co-workers House Nancy (second are Foster. Col- Smy6Lyu 42/6 : P Page221 PM 8: 4/27/16 ASBmay16_Layout 1 should notgranted. why to makes specificfindingsas order unlessthe court court enting plan,that parenting planshallbegranted inthefinal tody cases. bothparentsto If submit requiring bothparentsto todial parent orwillhave physical restricted custody. custody andtheotherparent will bethenon-residential cus- physical custody, thenoneparent physical willhave primary it withtheconcept that iftheparents are notawarded joint and theotherparent beingawarded visitation, andreplaces cepts ofoneparent beingawarded solephysical custody to amends andexpands thecurrent law joint custody statutory the consideration oflegislation onthistopic. This legislation tody arrangements. That Custody Amendments (HB333) divorce, cannever subsequently award thecourt alimony. for awardingtion ofjurisdiction alimonyat law change incircumstances. The continuesto upon remarriage orcohabitation asprovided incurrent law. rehabilitativeBoth alimony andperiodic continueto limitedto for mayor hasfailed, award thecourt alimony. periodic Generally, determines that rehabilitativethe court alimony isnotfeasible to to is court expressly findsthat rehabilitative alimony isnotfeasible, the award. an be considered whenmaking decree,to whileestablishingpriorities, limitations andfactors alimony,periodic includingrehabilitative alimony afinal after property.pursue ordefendoutofmarital theaction tion cost and expenses, includingattorneyto fees, necessary to to forfactors thecourt cretion ofawarding interim alimony,to but adjudicate pastcaseswould beoverwhelming. prospectiveto onlyastheshock dation was that any reforms that are adopted shouldbe to duced concerning alimony reform madeclearthat itwas time Alimony Amendments (HB330) siderationby five years, circumstances. absent extraordinary Second, if takeacomprehensiveat look allparental custody arrangements. abolishesthecon- It award interim alimony. may alsoorder Courts thelitiga- The Few ofbothrehabilitativeModification alimony andperiodic The The Over The marriages oflessthan20years, marriages alimony periodic shallbe that ifthere isneitheranaward ofalimony norareserva- theparenting plan jointlyby submitted committee madeanumberofrecommendations for con- proposal alsocontinues acourt’s discretion ofawarding proposal theuseofparenting alsoextends by plans core oftheproposalto was areas ofthelaw are more emotionalthanchildcus- thepastfew years, thenumberofbillsbeingintro- to not aperiod onlyaward rehabilitative alimony, whichislimited thelegislature Session: the2016Regular during beallowed basedonashowing ofamaterial consider whendetermining whether exceed thelengthofmarriage. to forward emotioncarries submitparenting plansinallcus- proposal retains thecurrent thetopic. The thesystem from havingto continue thecourt’s dis- the court thesamepar- thecourt First, unlessthecourt thetimeof enumerate the theparties firstrecommen- terminate even re- physicalto custody andthefactors shall considerto whendetermining whether the time-sharing schedulein aparenting plan. the time-sharing are enting timeandreimbursement for costs andattorney fees schedulein aparenting par- plan.Makeup the time-sharing whenaparent, withoutproper cause,party to fails physical custody ifjoint custody isnotawarded. which parent shallbedesignated astheparent withprimary by incurred and thediscretionto tation pendingafinalorder underlimited circumstances both oftheserequirements are alsosetoutintheproposal. the bestinterest ofthegrandchild. The the grandchild andthat visitation withthegrandparent isin parentprove must visitation. child andrequires clearandconvincing evidenceto to iting visitation table presumption that afitparent’s decisiondenying orlim- that willwithstandscrutiny. The ance providedby statutes nationwide. This proposal makesuseoftheguid- to has beenanumberofchallenges declared unconstitutional. This was justthelatest ofwhat grandparent Visitation (HB334) between theaward ofthebenefits andtheirdistribution. sive gainsorlossesof theretirement thetime benefitsduring equally beartheburden orbenefitof thepas- that eachparty all casesandprovides amore equitableresultby ing evidence ofthepresent value oftheretirement benefitsin but theproposal eliminates thecostly requirement ofprovid- method ofvaluing, ofthe benefits, dividing anddistribution could consider awarding retirement benefits. for mustbemarried at parties the proposal eliminates thethreshold requirements that the [sameascurrentaccrued themarriage law], during however 50 percent spouse’s ofthenon-employed retirement benefits limitations. The within certain award cerning thedivisionofretirement benefitsupondivorce. 30-2-51oftheCode cantly amendSection implicated inlegislative proposals. This billwould signifi- DivorceAct ofretirementDivision upon Benefits The Finally, theproposal provides additionalremediesto The To Alabama’s current grandparent visitation statute hasbeen The retainsUnder theproposal thediscretionto thecourt to Similar amongtheremedies available whenaparent violates rebut aparentalto decision court isgranted court broad discretionto proposal alsoenumerates that thecourt thefactors proposalto would allow courts retirementto benefits oronbehalfoftheparty. alimony, thisisanarea ofthelaw that isoften (HB328) thepetitionerisinbestinterest ofthe to variouscourts asignificant andviablerelationship with award reasonable expenses any party the non-employed spouse thenon-employed court may notaward court more than least10years before thecourt proposal provides arebut- deny visitation; thegrand- try and draft astatute anddraft try to beused grandparent visitation grant visi- temporary factors for factors establishing useany equitable ofAlabama,con- award joint determine requiring adhereto www.alabar.org grant a L 221

THE Alabama Lawyer Smy6Lyu 42/6 : P Page222 PM 8: 4/27/16 ASBmay16_Layout 1 222 THE Alabama Lawyer May 2016 OPINIONS OF THE GENERAL COUNSEL J. Anthony McLain a lawyer’sto is firstduty counsel ofhisintentto remain thesame. Where aclient informs client, thelawyer’s ethicalobligations representing acivilclient oracriminal ANsWEr: that aclient hascommitted perjury? ethical obligations when alawyer learns What commit perjury? when hisclient reveals hisintentto qUEsTiON: to Or Intends Client HasCommittedWhen His Ethical Obligations ofaLawyer suade theclient from committing per- Regardless ofwhetherthelawyer is What are alawyer’s ethicalobligations are alawyer’s commit perjury, attemptto Commit Perjury dis- submitted falseevidence, thelawyer’s or that aclient hascommitted perjury draw mony, thelawyer should moveto insist that theywillprovide falsetesti- by so reason for withdrawal ifrequiredto may explain that he lawyer shouldfurther withdraw from representation. The the lawyer willbeforcedto then committing theproposed perjury vise theclient that iftheclient insistson jury. doingso, In thelawyer shouldad- When a lawyer has actual knowledge When alawyer hasactual berequiredto from representation. the court. If theclient continuesto If thecourt. disclosethespecific moveto with- do Smy6Lyu 42/6 : P Page22 PM 8: 4/27/16 ASBmay16_Layout 1 the client. Rule3.3provides asfollows: aboveto hisdutiesofloyaltyof thecourt andconfidentiality ment require clearly thelawyerto the civilclient, however, Rule3.3, context the In client andhisdutiesasanofficer ofthecourt. lawyer can face. The isoneofthemostdifficultethicaldilemmasa mitting perjury DisCUssiON: and/or submissionoffalseevidenceto to an ethicalobligation or falseevidence. theclient refusesto If vinceto the client to is first duty Having aclient threatento a Alawyer shallnotknowingly: (a) (1)make afalsestatement orlawto ofmaterial fact (1)make a tribunal; Toward Rule 3.3Candor remonstrateto withtheclient inaneffort voluntarily theperjured correct testimony lawyer istorn between hisloyaltiesto disclosetheperjured testimony commit perjury or actually com- oractually commit perjury Ala. R.Prof. C., place his dutiesasanofficer the Tribunal thecourt. doso, thelawyer has anditsCom- 1 con- the of Design andMarketing Services 300 North Dean Road,Suite ex an (d)In Alawyer may refuseto (c) dutiesstated inparagraph (a)continueto (b)The 334.799.7843 • or not the facts are adverse.or notthefacts to the tribunal to known material facts proceeding, alawyer shallinform ofall thetribunal lawyer reasonably believes isfalse. protectedby erwise compliance requires disclosure ofinformation oth- conclusion oftheproceeding, andapplyeven if (3)offer evidence thatto thelawyer knows (3)offer to fail (2) reasonable remedial measures. comesto If by or fraudulent act to disclosure isnecessary alawyer has offered material evidence and Sales Product Packaging AdsPrint Product Brochures Websites Logos parte proceeding otherthanagrand parte jury to discloseamaterial fact Support know ofitsfalsity, know thelawyer shalltake

Catalogs www.taplink.com makeaninformed decision,whether Material Rule1.6. theclient; or offer evidence that the thelawyer whichwillenable 5-193 • Auburn,AL avoid assistingacriminal Professional P.O.P. Billboards Kits Media Publication Trade Show Exhibits a tribunal when atribunal Displays befalse. Design www.alabar.org Portfolios the 36830 223

THE Alabama Lawyer Smy6Lyu 42/6 : P Page224 PM 8: 4/27/16 ASBmay16_Layout 1 224 THE Alabama Lawyer May The (Continued 2016 remedial measures False Evidence impossible, theadvocate shouldmake disclosureto withdrawalsituation. If willnotremedy thesituation oris advocateto shouldseek monstrate withtheclient confidentially. that fails, If the fered, the court. fect that thelawyer keepsilent. Thus theclient could inef- lawyer’s adviceto of falseevidence, theclient the cansimplyreject to upontheduty lawyer willact thermore, understood unlessitisclearly that the system isdesignedto thetruth-findingprocessverting whichtheadversary lawyer cooperate thereby indeceiving thecourt, sub- prosecution for perjury. Butthealternative isthat the trayal a butalsolossofthecaseandperhaps quencesto party. Suchadisclosure grave can result in the client’s deceptionto situation, anadvocate mustdisclosetheexistence of generally recognizedto isthat, ifnecessary the lawyer musttakereasonable remedial measures. mediately bedisclosed.thepersuasionisineffective, If it hasbeenoffered, that shouldim- itsfalsecharacter the client that theevidence shouldnotbeoffered or, if evidence isfalse, thelawyerto shouldseek to of candor keep theclient’s revelations confidential andtheduty ever, may between thelawyer’s aconflict arise to duty must refuseto providedby OPINIONS OF THE GENERAL COUNSEL Commentto If When falseevidence isofferedby When evidence thatto alawyer knows Except inthedefense accused, ofacriminal therule perjured testimony orfalseevidence hasbeenof- to coerce thelawyer into beingaparty theadvocate’s proper course ordinarilyto is from page223) theclient, includingnotonlyasenseofbe- apersonwhoisnottheclient, thelawyer the court. Upon ascertaining that material Uponascertaining thecourt. Rule 3.3 provides in pertinent part asfollows: part Rule3.3provides inpertinent offer itregardless oftheclient’s wishes. reveal thefalse evidence andinsist implement. Rule1.2(d).Fur- See Comment withdraw if that willremedy the to or thecourt * * disclosetheexistence theclient, how- theother befalseis conse- persuade rectify the rectify fraud on re- the from committing perjury.” However, Florida requires alawyer tions, becausewithdrawal alonedoesnotprevent theclient falsely, withdrawal doesnotfulfillthelawyer’s ethicalobliga- opinion, “[i]f thelawyer that knows theclient willtestify testifyto falsely quire the lawyerto the lawyerto close theclient’s intentionsto explain that hemay berequiredlawyer shouldfurther to falsely, thenthelawyer willberequiredto form representation. timony orshouldimmediately moveto fying falsely, thelawyer shouldrefuseto oftheclient’sthe court theclient insistsontesti- If misconduct. have form should counselto theclient not tendsto assist aclient indoingso. When alawyer that learns aclient in- Some states,Some suchasFlorida, inFormalre- Opinion04-1, As nite point for thetermination oftheobligation. The presentation offalseevidenceto has Duration ofObligation be done–making astatement aboutthematterto done–making be to then isfor thecourt It court. to of theright erate a andthusescapeprosecution. ofmistrials series However, scrupulous clientway might inthis of theissue, may andamistrial beunavoidable.An jury, thelawyer cannotrepresent theclient inresolution there isanissuewhethertheclient hascommitted per- when thelawyerto disclosesthesituation trovert false testimony was that oftheclient, theclient may con- ordering amistrial, nothing. offact, orperhaps the trier If second suchencounter could beconstrued asadelib- such,alawyer may notsubmitfalseevidenceto theclient that iftheclient continuesto theclient that ifhedoestestify falsely, thelawyer will nochoiceto but to timelimitontheobligation A practical conclusion oftheproceeding isareasonably defi- to abuseoftheright to or commit perjury thelawyer’s version oftheircommunication discloseaspecificreason for thewithdrawal. 2 the court uponwithdrawal. thecourt Accordingto In further representation. further counseling theclient, thelawyer shouldin- affirmatively disclosetheclient’s intentto withdraw from thematterto and * counsel andassuchawaiver offer falsetestimony, thelawyer the court, if the court requires ifthecourt thecourt, doso. The determine what should attemptto withdraw from the offer theperjured tes- beestablished. withdraw. The lawyer shouldin- insistontestifying the court. If thecourt. rectify the rectify produce a a court or acourt the un- inform dis- the Smy6Lyu 42/6 : P Page225 PM 8: 4/27/16 ASBmay16_Layout 1 Conduct. from committing acrime, ofperjury. includingthecrime to reveal anyto information that isnecessary Alabama has no such counterpart inthe Alabama hasnosuchcounterpart (b)A Alawyer shallnotreveal information relatingto (a) sentation, andexcept asstated inparagraph (b). impliedly authorized inorderto consultation,after except for disclosures that are resentation ofaclient unlesstheclient consents the lawyer reasonably believes necessary: lawyer may reveal suchinformationto Rather, Rule1.6, 1.6 Confidentiality ofInformation Ala. R.Prof. C., carry outtherepre- carry provides asfollows: Rules ofProfessional prevent aclient theextent rep- confidential information onlywhendisclosure isrequiredto Under Rule1.6,alawyer ispermissively allowedto (2)to establishaclaimordefense onbehalfofthe (2)to prevent theclient from committing acriminal (1)to client. concerning thelawyer’s representation ofthe to or inwhichthe client wasupon conduct involved, charge orcivilclaimagainstthelawyer based the client,to lawyer in acontroversy between thelawyer and imminent death orsubstantial or bodilyharm; that thelawyer believesact to islikely respondto establishadefenseto allegations inany proceeding acriminal result in disclose www.alabar.org 225

THE Alabama Lawyer Smy6Lyu 42/6 : P Page226 PM 8: 4/27/16 ASBmay16_Layout 1 226 THE Alabama Lawyer May Conduct, 316-317,6 .” favor oftheclient. . doubts abouttheveracity oftestimony orotherevidence in presentationto reasonable beliefthat evidence isfalsedoesnotpreclude its to picions then lawyer would nothave anyto obligation sonable beliefthat theclient hasliedoroffered falseevidence, lawyer doesnothave knowledge, butrather only area- actual lawyer would berequiredto that aclient hastestifiedtual knowledge falsely, thenthe client hasliedoroffered falseevidence. Where alawyer hasac- versusknowledge areasonable belief orsuspicionthat the the timehasexpired for allpost-trial motionsorpleadings. ofjudgmentconcluded whenacertificate hasbeenissuedor Commission hasdetermined that aproceedingDisciplinary is would nothaveto aduty theconclusiontified falselyafter ofthecase, thelawyer proceeding. For example, ifalawyer that learns hisclient tes- duties underRule3.3onlycontinueto tinue ofthefalseevidence ortestimony.ing party to then thelawyer hasaduty client’s theclient refusesto If actions. lawyer willhave nochoiceto but lawyer shouldexplain that iftheclient refusesto doingso, In ofhismisconduct. the and/or theopposingparty to lawyer shouldfirstremonstrate withtheclient inanattempt measuresto Rule 3.3requires thelawyerto client’s intentto cific reason for hiswithdrawal, thelawyer may disclosethe However, requires ifthecourt thelawyerto requiredto to tion The to prevent aclient that from is committing act acriminal “likely (Continued half ofaclient that thelawyer reasonably believesto Prof. 2016 convinceto, theclient .” result inimminent death orsubstantial. bodilyharm It Obviously, alawyer’s ethicalresponsibilities donotcon- When alawyer oftheclient’s learns thefact, after perjury OPINIONS OF THE GENERAL COUNSEL to isalsoimportant crime of perjury doesnotfallwithinthisnarrow excep- ofperjury crime C., ad infinitum. As Rule1.6. doesallow alawyerto the court ortheopposingparty. Rather, thecourt “[a] lawyer’s disclosetheclient’s intentto from page225) correct theclient’s correct Ordinarily, misconduct. the the trier of fact. .alawyer shouldresolve offact. thetrier commit perjury. Rule3.3(b), such,thelawyer isnot, uponwithdrawal, th

Edition. (2007). ABA Annotated Model Rules Model ofProfessional Annotated ABA distinguishbetween alawyer’s actual ofhisown volition, inform thecourt to disclosethefraud comply withRule3.3. When a inform the court and/oroppos- inform thecourt refuseto immediately takeremedial Ala. R.Prof. C., inform the court ofthe inform thecourt However, Rule3.3(c), disclosehismisconduct, offer evidence onbe- theconclusion ofthe commit perjury. disclosethespe- provides that the disclosehissus- The thecourt. doso, the befalse. Ala. R. provides, in pertinent part asfollows:provides, part inpertinent representation clients, ofcriminal theAlabama Comment thatally knows thetestimony willbefalse. regard In to by must abide sional Conduct, 317,6 nal defense counsel.” Rules Model of Profes- Annotated ABA, against presenting aclient’s falsetestimony ishighfor crimi- to level sufficient ofknowledge clients, theoutcome islessclear. First andforemost, “[t]he obligations oflawyers intheirrepresentation ofcriminal While theCommentto by Perjury way, passive the proof, thelawyer althoughinamerely participates, other hand, ifthelawyer doesnotexercise control over ofaprosecutionopen thepossibility for perjury. Onthe likelihood oftheclient’s beingconvicted aswell as lawyer’sto effort the lawyer that knows thetestimony isperjurious. The inal casewhere theaccused insistsontestifying when is available. place untilitself, thetrial orbecausenoothercounsel cause theconfrontation withtheclient doesnottake sible, however, isimminent, eitherbecausetrial orbe- can withdraw. Withdrawal before may trial notbepos- with theclient occurs before trial, thelawyer ordinarily whenthat persuasionfails. theconfrontationduty If mony, there hasbeendispute concerning thelawyer’s to persuade theclient bated. While itisagreed that thelawyerto shouldseek ofdisclosurethe sameduty hasbeenintensely de- suggested resolution, ofrelatively recent origin, isthat to closure ofinformation imparted to theclient false evidence butsubjects ciples; itexempts thelawyerto from theduty questioning. This compromises bothcontending prin- rative withoutguidance through thelawyer’s posed.to Oneis The Whether anadvocate for accused acriminally has Three resolutions ofthisdilemmahave beenpro- mostdifficultsituation, therefore, inacrim- arises aCriminal Defendant theclient’sto decision indeception court. ofthe permit theaccusedto permit rectify thesituation rectify can increase the th Edition. (2007). refrain from testi- perjurious Rule3.3alsoaddresses theethical Comment * trigger theprohibition trigger testify unless heactu- counsel. Another Ordinarily, alawyer by testify animplicitdis- disclose anar- the Smy6Lyu 42/6 : P Page227 PM 8: 4/27/16 ASBmay16_Layout 1 at ofthe perjury. Id. the court told thedefendant that ifhedidsotestify, hewould inform if theclient insisted ontestifying assuch.The andthat hewould withdrawbe perjury from representation something “metallic” inthevictim’s hand. nouncedto tim’s hand. However,to justprior told seenaguninthevic- hislawyer that hehadnotactually Throughout therepresentation, thedefendant repeatedly hebelieved wasafter reaching that thevictim for agun. foron trial murder. The dant inpresenting perjured testimony. The olated whenalawyer refusedto defendantright ofacriminal to granted v. tum inNix United States disapproved ofthe narrative approach indic- and The ance withhisethicalresponsibilities underRule3.3. his client’s Amendment rightsandstillbeincompli- Sixth may however,to appears dence orfalsetestimonyto client assistacriminal inpresentingnot actively falseevi- Under theCommentto trial andbeingconvicted trial ofmurder, thedefendant moved The Annotated Model Rules Model ofProfessional theAnnotated Conduct Both dence. Rule1.2(d). See orotherfalsification ofevi- the commission ofperjury ethics butunderthelaw aswell,to an advocate hasanobligation, notonlyinprofessional tance ofcounsel incommitting perjury. Furthermore, However, anaccused shouldnothaveto aright right ofconfidential communication withcounsel. the assistance ofanadvocate,to aright thesituation.accusedto rectify Acriminal hasaright lawyer must reveal theclient’sto ifnecessary perjury instrument ofperjury. coherent solutionbutmakestheadvocate aknowing isthat oftheclient. iftheperjury veal perjury This isa the advocate beentirely excusedto from theduty usethenarrative approachto soas The lawyer told thedefendant that suchtestimony would Law of Lawyering to certiorari otherresolution ofthedilemmaisthat the hislawyer that hewould testify that hesaw , 475U.S. Whiteside 157(1986). decide whether the Sixth Amendment decidewhethertheSixth be whether a criminal defense bewhetheracriminal lawyer defendant hadstabbedthevictim Rule3.3,itisclearthat alawyer can- note that ofthe theSupreme Court a 161.After testifying truthfully at The thecourt. assistance ofcounsel was vi- cooperate withthedefen- trial, thedefendant an- avoid implication in not infringe upon notinfringe closerquestion, testify and a 3 defendant was In lawyer also Nix,theCourt assis- re- [RO-2009-01] mony asexculpatory ormaterial undertheBrady gardless ofwhethertheprosecutor deemsthefalsetesti- disclose thefalsetestimony ofthewitnesswouldre- apply prosecution examination. direct witnessduring The cutor would haveto aduty committedby disclose perjury case. Justasadefense attorney would haveto anobligation to these obligations applyequally representing client acriminal oraclient in acivilmatter. tions remain thesame, regardless ofwhetherthelawyer is has determined that underRule3.3,alawyer’s ethicalobliga- As ficer ofthecourt. Rule 3.3andinconsistent withalawyer’s obligations asanof- tify falselywould beinconsistent withtherequirements of lawyer’s useofthenarrative approachto counsel indoingso. to ment.”As Id. proceedings,disciplinary includingsuspensionordisbar- wouldat be ate counselto includes noright falsely.” Id. to that sucharight doesnotextend elementary “[w]hatever thescope ofaconstitutionalto right saw his defense counsel would notallowto him Amendmentto right for Endnotes v. Brady See 4. HazardLaw &Hodes, The 3. HazardLaw &Hodes, The 2. .This opinionisconsistent withABAFormal 87-353. Opinion 1. testify falselyonhisown behalforhave theassistance of The It In a new trial basedontheallegeddenialofhisSixth anewtrial tated withplannedperjury. Alawyer whowould socooperate is the opinion of the Disciplinary Commission that a istheopinionofDisciplinary agunorsomething “metallic.” Id. rejecting thedefendant’s rejecting noted claims, that theCourt Disciplinary Commission hasalsodetermined that Disciplinary Model RulesofProfessional Model Conduct, 317,6thEdition (2007). at173.The , 373U.S. Maryland 83,83S. Ct. 1194(1963). risk ofprosecution risk for perjury, suborning and such, a criminal defendant such,acriminal doesnothave aright a result, the Disciplinary Commission aresult, theDisciplinary effective assistance ofcounsel because Court wentto Court on ofLawyering, §29.19.3rd Edition (2005).ABA,Anno- ofLawyering, §29.13.3rd Edition (2005). disclose perjury committedby discloseperjury have alawyer whowillcooper- a criminal defendant, acriminal aprose- prosecutors inacriminal L at162. note that to right “the allowto aclient testify that he testifying testify, itis 4 standard. www.alabar.org to duty tes- a 227

THE Alabama Lawyer Smy6Lyu 42/6 : P Page228 PM 8: 4/27/16 ASBmay16_Layout 1 228 THE Alabama Lawyer May 2016 [email protected] Hughston Nichols Hughston starks Hal mooty, Janine mcAdory, Danielle rell, Caldwell, Joel morgan Hofferber, to thanks involving thelegal profession. Many ofprospective careersvarious aspects dents across thestatewere success, highschoolstu- asminority the conferenceswere Pre-Law or sponsored oneofourfour minority in and vendors whoeitherparticipated judges, professors, students, law firms A Must-Attend Event Orange Beach– and Mobile. Huntsville, Montgomery Birmingham, hard work inorganizing theevents in Thank youto and Conferences Latisha r.Davis, Chris Bur- miland simpler miland alloftheyoung lawyers, anoutstanding in April.As to exposed for their usual, YLS UPDATE eventat willbeheld associatesto to opportunity as leadersofyour firms, you have the asyoung spring lawyers.CLE every Now fondly recall attending theYLS May CLE, of weeksaway practice areaspractice andlocations. and otheryoung lawyers from different is alsoachanceto with former law schoolclassmates, butit to Not onlyisitanopportunity is amust-attend event for young lawyers. ange Beach. we ahead,Looking Past attendees canattest that thisCLE 20-21.Nodoubt, many ofyou thisgreat event. This year’s from ourOrange Beach sendsomeofyour own network withjudges network The are onlyacouple Caribe reunite beach in Or- Smy6Lyu 42/6 : P Page229 PM 8: 4/27/16 ASBmay16_Layout 1 CLE andensure thepresentations willbenefitallyoung this event. committee Our hasworked hardto you outsidecounsel.when hiring an in-houseattorney regarding what corporations lookfor vice geared toward young lawyers. Finally,we your client’s story, tipsfor thesoloattorney andgeneral ad- covering topics suchasgenerating legalbusiness, telling we addition, scott Donaldson.In art, from state bar If slateOur ofspeakersthisyear isincredible. We you are aformer attendee oftheYLS JudgeEugene reese, JudgeJimHughey to referral service AsB Lawyer Join the encourage theyounger lawyers inyourto firm President Lee Copeland,stew- Judgesarah willhave presentations we beachCLE, willhearfrom organize this and willhear Judge attend ask contact anycontact ofourexecutive committee membersorme! in theYLS asbyounglawyers. For more information ongettinginvolved twitter.com/absyounglawyers platformsat [email protected] contact sponsorship opportunities, to or (888)607-7020andreferencing “ASB Young Lawyers’ CLE” can bookyour roomby lawyers of ourbar, regardlessYou oftheirareas ofpractice. receive areducedrate. Be        OVErViEW WHY sureto participation Professional insurance liability required for tween $1,000and$5,000 percentageMaximum fee of$250onfees be- Annual fee of$100 Referrals inall67counties Improve fromBenefit efforts ourmarketing Expand your client base orhelpingoutwithany ofourupcoming events, JOiN? keepupwiththeYLS https://facebook.com/ABSyounglawyers, https:// the Download or your bottom line email [email protected]. sign meUp! or (251)694-9393. THE OF www.alabar.org callingThe For additional information orfor and/or applicationat PrOgrAm through oursocialmedia at Caribe robert shreverobert , https://instagram.com/ (251)980-9000 www.alabar.org L 229

THE Alabama Lawyer Smy6Lyu 42/6 : P Pg Page2 PM 8: 4/27/16 ASBmay16_Layout 1 230 THE Alabama Lawyer May Please email [email protected]. 2016 announcements to announcements ABOUT MEMBERS, AMONG FIRMS associate office. intheSelma OwenElliott Lipinsky J. robert mauck D. ham announces that Christopher chief operating officer. givhan Fairhope announces that WilliamB. is now Browder & Welborn LLC . Welborn Tuscaloosa announces thatB. David that Karl moor Among Firms Phone (256)333-2222. 415 ChurchSt., ing ofTylerLaw injury mann Members About Hobbs &HainPC Hand Arendall LLC HendrixPC gault gaines Collegiate HousingFoundation E. Herbert &BinghamLLP Balch TylerE. joined asanassociate. joined asgeneral counsel and riccio is a partner and the firm name andthefirm is apartner mann Browder LLC E10,Huntsville 35801. joined ascounsel. is now amember. announces theopen- announces that announces that joined asan announces of of Birming- LLC at of Howard Resolution. the Georgia Commission onDispute tered mediator andarbitrator through that P. low salyer joined asassociates. Crystal Phillips Alabama office. Kaplan as anassociate. nounces that AustinB. reeg eral counsel. Young Nunnally Tuscaloosa announces that Timothy H. LeeBeth Liles Holtsford HigginsHitson& gilliland Pittman, Dutton &Hellums Paskertmills Divers PC Darrin r.marlow Law Kreps starnes Davis Florie Us Assets LLC United Bank sydney &salyer LLC joined ascounsel for Louisiana. Keith Lichtman announce theformation ofmar- joined asvice president andgen- is now a partner inthecentral is now apartner PC Cook &Associates LLC joined ofcounsel. announces that JarredE. Firm LLC joined the Mobile office.joined theMobile announces that Wes and Caroline Pruitt announces that with offices inCalera. W. and Jeffrey Whitten announces that is now aregis- announces that announced an- D. seth joined of L ASBmay16_Layout 1 4/27/16 8:30 PM Page 231

Court Reporting ..V°ldeography • Videoconferencing • WorldwideSdheduling • Tria ITechnology ..Conference Rooms

Vi.sftlJ9 Online At: www.1ireedom~eporting.oom1 -8 7 7 - 3 7 3 - 3 6 6 10 toll free 75202-1ASBmay16_Layout AlaBar.qxp_Lawyer 1 4/27/16 11/2/15 8:30 PM 8:32 Page AM 232 Page 424

Periodical Postage Paid Montgomery, AL

o t o t

w L Lowerewo re ratesetar s

on lifei l f insurance, ie usn r e,anc

a t thanksnah tkn to ys you.oo uo .

AAll ofll of you. o u y .

Now, Alabama State Bar members have access to life insurance at a gr oup rate. Did you know that 67% of Americans say they need lifelife insurance s but think k it’sit’s too eexpensive? snepx i ? ev Well,Well, thanks to our strongstr ong membership, we werwere e able to use our purpurchasingchasing ppower ewo to get egotr at all l our uol r members a discounted rate on lifelife insurance.

YYouou can get $500,000$50 of coverage for less than $2.50 a day. How do you figurefigure out how much lifelife insurance you need? A good rule of thumb is tto multiply lumo y lpit 60% of your income times the number of years until retirement.retirement. So look at your age on the chartO below to see some of the differentdifferent types of coverage available to you. Getting lilifefe insurance is easier than you think. Just call right now and we’ll get you starteds in a few mwefanidetrat minutes. setunim . BenefiteB n AmountsAfien andatnuomt Qns Quarterlytraud e PremiumsPrl miumery s

O $250,000 $500,000 $1,000,000 Age Male Female Male Female Male Female

30-34 $28.13 $22.50 $54.00 $43.20 $108.00 $86.40 35-39 $43.13 $34.38 $82.80$66.00 $165.60 $132.00 40-44 $72.50 $57.50 $139.20 $110.40 $278.40 $220.80 45-49 $111.25 $89.38 $213.60$171.60 $427.20 $343.20

50-54 $171.25 $148.75 $328.80$285.75 $657.60 $571.20 Insurance Rates shown are the quarterly term life premiums for non-smokers. underwritten by Other payment modes are available. Please call ISI at 1-888-ISI-1959 with any questions.

Metropolitan Life Insurance Company, New YYork,ork, NY Go tG to:oo : www.startprotecting.com/C4560ww ww . s t a r t pr ceto t i ng c. om / 4C 560 L0116451652[exp0118][All States][DC] Explore ProplxE Plann OptionsOale O • Cnoitpn Calculate rtaluclas ratess • ApplyAetae A oplps onlineenilny