September 2010 • Vol

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2010-11 ASB President Alyce Spruell and Family Celebrate Pro Bono Week October 24-30, 2010 48169-1 ALABAR_Layout 1 9/10/10 1:46 PM Page 328

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THE UNIVERSITY OF ALABAMA www.CLEalabarna.corn SCHOOL O F LAW 48169-1 ALABAR_Layout 1 9/16/10 12:49 PM Page 331 Cover the On

SEPTEMBER 2010 • VOL. 71, NO. 5

Pictured on the cover are Alabama State Bar President Alyce Spruell and her husband of 29 years, Bruce, along with their son, Taylor, who is 23 and works with D-1 In This Issue Sports in Birmingham, and their daughter, Cameron, who is 20 and a student at the University of Alabama studying family and adolescent counseling. The photo was taken on the campus of the University of Alabama, 348 ASB Spring 2010 Admittees which is only appropriate since the Spruells are Tuscaloosa residents and loyal ’Bama fans (RTR)!

352 Celebrate Alabama’s Pro Bono Week –Photo by Crosby Thomley Photography, By Phil D. Mitchell Northport, www.crosbythomley.com ASB LEADERSHIP FORUM: 356 Get Plugged In, Stay Passionate, Make a Difference By Rebecca G. DePalma 358 Answering the Call to Leadership By Derrick A. Mills 360 Selection Criteria Departments 361 Class 6 Graduates 335 President’s Page 363 2009 ASB Annual Meeting Awards and Highlights Building Better Citizens 370 Do You Know about the Alabama State Bar’s Client 339 Executive Director’s Security Fund? Report By Julia Smeds Roth The Challenges Ahead 374 The Coming Wave of Gulf Coast Oil Spill Litigation 341 Memorials By Stephen Gidiere, Mike Freeman and Mary Samuels 343 382 When Doing Business Internationally Becomes a Crime: Young Lawyers’ Section Get Involved! Assisting Clients in Understanding and Complying with the Foreign Corrupt Practices Act 345 Bar Briefs By William C. Athanas 401 388 Alabama’s New Uniform Guardianship and Protective Opinions of the General Counsel Proceedings Jurisdiction Act: Providing Clear Guidance for The Unbundling of Legal Services the Management and Resolution of Interstate Guardianship and “Ghostwriting” and Conservatorship Disputes 405 By Hugh M. Lee Legislative Wrap-Up Impact of Federal Health Care 394 Preparing for Risk Protects Your Family and Preserves Reform on Alabama Assets 409 Disciplinary Notices By Patty McDonald 397 Hats Off to the Ones Who Make the LRS Possible 415 About Members, By Renee Avery Among Firms

The Alabama Lawyer 331 48169-1 ALABAR_Layout 1 9/16/10 12:49 PM Page 332

Robert A. Huffaker, Montgomery...... Chair and Editor ALABAMA STATE BAR [email protected] 415 Dexter Avenue Linda G. Flippo, Birmingham ...... Vice Chair and Associate Editor [email protected] Montgomery, AL 36104 Brad Carr, Montgomery...... Staff Liaison and Director of Communications (334) 269-1515 • (800) 354-6154 [email protected] Margaret L. Murphy, Montgomery ...... Staff Liaison and FAX (334) 261-6310 Publications Director Web site: www.alabar.org [email protected] Marcia N. Daniel...... Communications & Publications Assistant ALABAMA STATE BAR STAFF [email protected] executive Director ...... Keith B. norman Board of Editors executive assistant ...... Diane Locke Gregory C. Buffalow, Mobile • Russell C. Buffkin, Mobile • Henry L. Cassady, Jr., network administrator...... Wayne hughes Fairhope • Greg C. Cook, Birmingham • Katharine A.W. Coxwell, Monroeville • J. Mark Debro, Huntsville • Patrick C. Finnegan, Mobile • N. Chris Glenos, computer Programmers...... Dolan L. trout Birmingham • C. Paige Goldman, Birmingham • Wilson F. Green, Tuscaloosa • Trip Larry Pratt Haston, III, Birmingham • Fred G. Helmsing, Jr., Mobile • Anne S. Hornsby, scanning Operator ...... Kristi neal Tuscaloosa • Emily C. Marks, Montgomery • Reta A. McKannan, Huntsville • Timothy B. McCool, Carrollton • Derek F. Meek, Birmingham • William J. Moore, Web administrator...... Willie Murphy Jr., Enterprise • Richard D. Morrison, Montgomery • George R. Parker, Montgomery assistant executive Director ...... edward M. Patterson • Gabrielle E. Reeves, Mobile • Christopher N. Smith, Montgomery • John S. administrative assistants ...... rita gray Steiner, Birmingham • Chad E. Stewart, Enterprise • James R. Turnipseed, Mobile Marie Updike • Aldos L. Vance, Birmingham • Mark T. Waggoner, Birmingham • Kevin Walding, Director of regulatory Programs...... angela Parks Dothan • John R. Wallis Birmingham cLe administrative assistant...... carol thornton Officers C L E regulatory Programs/PhV assistant ..cathy sue Mccurry Alyce M. Spruell, Tuscaloosa...... President Membership administrative assistant ...... emily Farrior James R. Pratt, III, Birmingham ...... President-elect Thomas J. Methvin, Montgomery...... Immediate Past President Director of communications ...... Brad carr Billy C. Bedsole, Mobile ...... Vice President C o u R S E Keith B. Norman, Montgomery ...... Secretary Publications Director...... Margaret L. Murphy Clay A. Lanham, Mobile ...... Young Lawyers’ Section President communications and Publications S E A R C h assistant...... Marcia n. Daniel Board of Commissioners Director of admissions ...... Dorothy D. Johnson 1st Circuit, Ronnie E. Keahey, Grove Hill• 2nd Circuit, Cleveland Poole, Greenville • admissions administrative assistants.....sonia Douglas 3rd Circuit, Christina D. Crow, Union Springs • 4th Circuit, J. Garrison Thompson, Selma • 5th Circuit, Robert Simms Thompson, Tuskegee • 6th Circuit, Place No. 1, crystal Jones The Alabama Mandatory CLE Commission R. Cooper Shattuck, Tuscaloosa • Place No. 2, Robert Hays Webb, Tuscaloosa • 7th Bookkeeper...... gale skinner Circuit, William H. Broome, Anniston • 8th Circuit, Phil D. Mitchell, Decatur • 9th continually evaluates and approves in-state, asB Foundation assistant...... ann rittenour Circuit, W. N. Watson, Fort Payne • 10th Circuit, Place No. 1, Leslie R. Barineau, graphic arts Director ...... Maggie stuller Birmingham • Place No. 2, S. Greg Burge, Birmingham • Place No. 3, George M. Neal, Jr., Birmingham • Place No. 4, Phillip W. McCallum, Birmingham • Place No. graphic arts assistant...... roderick Palmer as well as nationwide, programs which are 5, Augusta S. Dowd, Birmingham • Place No. 6, Teresa G. Minor, Birmingham • receptionist ...... stephanie Oglesby Place No. 7, Joseph A. Fawal, Birmingham • Place No. 8, Robert E. Moorer, maintained in a computer database. All are Director of service Programs...... Laura a. calloway Birmingham • Place No. 9, Derrick A. Mills, Birmingham • Bessemer Cutoff, sP administrative assistant...... Kristi skipper William A. Short, Jr., Bessemer • 11th Circuit, Albert J. Trousdale II, Florence • identified by sponsor, location, date and 12th Circuit, Richard W. Whittaker, Enterprise • 13th Circuit, Place No. 1, Henry A. Volunteer Lawyers Program Director...... Linda Lund Callaway, III, Mobile • Place No. 2, Walter H. Honeycutt, Mobile • Place No. 3, specialty area. For a listing of current CLE VLP assistant ...... Katherine L. church Billy C. Bedsole, Mobile • Place No. 4, Juan Ortega, Mobile • Place No. 5, Mary intake specialists...... Deborah Dickey Margaret Bailey, Mobile • 14th Circuit, James R. Beaird, Jasper • 15th Circuit, opportunities, visit the ASB Web site, L. elise Massey Place No. 1, Frank M. Wilson, Montgomery • Place No. 2, Les Pittman, Montgomery Place No. 3, Robert A. Huffaker, Montgomery • Place No. 4, J. Cole Portis, Lawyer referral secretary ...... renee avery Montgomery • Place No. 5, Sim Penton, Montgomery • Place No. 6, Lee H. www.alabar.org/cle. alabama Lawyer assistance Program Copeland, Montgomery • 16th Circuit, F. Michael Haney, Gadsden • 17th Circuit, K. Director ...... Jeanne Marie Leslie (834-7576) Scott Stapp, Demopolis • 18th Circuit, Place No. 1, Ramona Morrison, Columbiana aLaP administrative assistant ...... sandra clements • Place No. 2, Julia C. Kimbrough, Birmingham • 19th Circuit, Brian D. Mann, Wetumpka • 20th Circuit, Hamp Baxley, Dothan • 21st Circuit, John L. Jernigan, III, aLaP case Manager...... shannon Knight Brewton • 22nd Circuit, John M. Peek, Andalusia • 23rd Circuit, Place No. 1, alabama Law Foundation, inc. Director...... tracy Daniel Harold Stephens, Huntsville • Place No. 2, L. Thomas Ryan, Jr., Huntsville • Place aLF administrative assistants...... sharon Mcguire No. 3, Richard J. R. Raleigh, Jr., Huntsville • 24th Circuit, J. Dale Lawrence, Jr., Fayette • 25th Circuit, R. Wyatt Howell, Hamilton • 26th Circuit, Kenneth E. White, sue Jones III, Phenix City • 27th Circuit, Jerry Wayne Baker, Jr., Albertville • 28th Circuit, alabama center for Dispute resolution Place No. 1, Allan R. Chason, Bay Minette • Place No. 2, Marion E. Wynne, Jr., Director ...... Judith M. Keegan (269-0409) Fairhope • 29th Circuit, Robert L. Rumsey, III, Sylacauga • 30th Circuit, Elizabeth S. aDr assistant ...... Patsy shropshire Parsons, Pell City • 31st Circuit, John M. Kennemer, Tuscumbia • 32nd Circuit, Jason P. Knight, Cullman • 33rd Circuit, Henry F. Lee, III, Geneva • 34th Circuit, ALABAMA STATE BAR CEnTER FoR Eddie Beason, Russellville • 35th Circuit, J. Milton Coxwell, Jr., Monroeville • 36th PRoFESSionAL RESPonSiBiLiTy STAFF Circuit, Christopher E. Malcom, Moulton • 37th Circuit, Roger W. Pierce, Auburn • 38th Circuit, Don Word, Scottsboro • 39th Circuit, Jere C. Trent, Athens • 40th general counsel ...... J. anthony McLain Circuit, David F. Law, Rockford • 41st Circuit, Alexander M. Smith, Oneonta secretary to general counsel...... Julie Lee assistant general counsel ...... robert e. Lusk, Jr. At-Large Board Members assistant general counsel ...... samuel s. Partridge Walter E. McGowan, Tuskegee • Claude E. Hundley, III, Huntsville • Deborah Byrd Walker, Birmingham • Merceria Ludgood, Mobile • Alicia F. Bennett, Chelsea • assistant general counsel ...... Jeremy W. Mcintire LaBarron N. Boone, Montgomery • David K. Howard, Florence • Monet M. Gaines, complaints intake coordinator...... Kim ellis Montgomery • Kelly T. Lee, Elmore Disciplinary clerk ...... Bonnie Mainor The Alabama Lawyer (USPS 743-090) is published six times a year by the Paralegals/investigators ...... Laurie Blazer Alabama State Bar, 415 Dexter Avenue, Montgomery, Alabama 36104. cheryl L. rankin Periodicals postage paid at Montgomery, Alabama, and additional mailing carol M. Wright offices. POSTMASTER: Send address changes to The Alabama Lawyer, P.O.Box 4156, Montgomery, AL 36103-4156. receptionist ...... sherry Langley The Alabama Lawyer is the official publication of the Alabama State Bar. Views and conclu- sions expressed in articles herein are those of the authors, not necessarily those of the board of editors, officers or board of commissioners of the Alabama State Bar. Subscriptions: Alabama State Bar members receive The Alabama Lawyer as part of their annual dues payment; $15 of this goes toward subscriptions for The Alabama Lawyer. Advertising rates will be furnished upon request. Advertising copy is carefully reviewed and must receive approval www.alabar.org/cle from the Office of General Counsel, but publication herein does not necessarily imply endorse- The Alabama Lawyer The Alabama Lawyer ment of any product or service offered. The Alabama Lawyer reserves the right to reject any g r a P h i c D e s i g n P r i n t i n g advertisement. Copyright 2010. The Alabama State Bar. All rights reserved. 332 SEPTEMBER 2010 48169-1 ALABAR_Layout 1 9/10/10 1:47 PM Page 333

where CUMBERIAND good people SC HOOL OF LAW become ASAMFORD U N IVERSITY exceptionallawye rs

Fall 2010 CLE Programs

Check your calendar, mark the dote, pion to attend ond look for the program brochure six weeks prior to the seminar.

September 17 Developments and Trends in Health Care law 2010 co-sponsored with the Health Low Section of the Alabama State 8or

October l 21st Annual Bankruptcy Law Seminar October 15 New Developments and Practical Strategies in Class Action litigation 2010 October 22 Great Adverse Depositions: Pri nciples and Principa l Techniques featuring Robert Musante October 28-29 Sout heast ern Business law Institute 2010 e

Novembers 24th Annual Wo rkers' Compensation Seminar co,.sponsored with the Workers' Compensation Sect.Ionof the Alabama State Bar November 12 DUI Practice in Alabama: FromArrest to Appeal Novemberl9 Commerci al Real Estate Law Seminar co--sponsored with the RealPropert y, Probate & TrustLaw Sec tion of the AlabamaS tate Bar

December 3 17th Annual Employment law Update December 10 Constr uct ive Cross Examination-T he Next Generat ion featuring Roger J. Dodd December 17 Recent Development s for the General Practitioner December 29 15th Annual CLE by the Hour

Check the website and your email for additiona l courses. http://cumbe rland.samford.edu/cle; call (205) 726-2391 or l -800-888-7454 email [email protected]

Did you know Cumberland offer s a wide range of online courses? http ://cumberlan d.samford.edu/cle. click "onl ine courses"

Samford UnlvetsttyIs a n EqualO pportunity EducattOnal Institution/Employer. 48169-1 ALABAR_Layout 1 9/10/10 1:47 PM Page 334

42ndA N . AL SOUTHE~ CONFERENCEOF

BAR- ,,

MEETI G

.,\\ar 10 OCTOBER 7 - 10, 2010 POINT CLE R, LAB M President’s Page 335335

Spruell Lawyer Lawyer M. Alyce that of Justice Louis Brandeis citizen.” The The AlabamaAlabama is “There no higher than office of has the 21st of devot- Courts, civics years, Justice name percent the of the citizens three 36 in ABA few

for education Souter Chief Mission reducing could the the last only understanding the of Education civics teaching by and Support Civic the David is succeed individual one in and basic them, to percent the of Idol.” a of should Hon. 66 for least effective Roberts need the name Civics at support the to Bar while opportunities and in students commissioned John “American knew discussion-based Understanding Campaign asked of that Court, responsibilities Americans increase report they www.annenbergpublicpolicycenter.org the

them. Public State high-profile to at O’Connor and providing of panel When knew educational said and

young interactive recent Day the Center, one Supreme A rights available that on received how influence addition, participate Policy the name bullying. Sandra In has enhancing States Americans Education Americans skills details and government. schools. and in of Public judges of Alabama the of Hon. and our Survey school

Public the United correctly in the of of energies the for education demonstrates workforce. percent percent effective the Annenberg

develop 91 percent Americans of said state judges interpret state laws and the constitution, while 87 percent believe, to a great or moderate extent, that it is the state legislators responsibility – an overlap of 81 percent. of one 15 74 branches could both government their 2007 Civics I I I education Building Better Citizens: Why with ing Division helps Schools incidence century proven our support

335 Page PM 1:47 1 9/10/10 ALABAR_Layout 48169-1 48169-1 ALABAR_Layout 1 9/10/10 1:47 PM Page 336

President’s Page Continued from page 335

“There’s nothing that will take us down sooner as a nation than a nation of young people who

don’t understand the justice system.” Honorable Sandra Day O’Connor

During my year of service as your bar president, I and secondary education. We must also include in this will highlight how active involvement from our bar educational approach our adult and community-based membership can impact both student and community programs so that those who may not have had the understanding of the basic tenets of our government, chance to receive education about the rule of law and and add to the rich discussion of citizens’ rights and the necessity of an independent judiciary in their forma- responsibilities. I have also appointed a committee to tive years can now gain an understanding in their adult

focus on this issue during the coming year, with the education programs. (For more information, visit

goal of identifying resources that can be used by www.abanet.org/judind/toolkit/impartialcourts.)

schools and community education programs for

civics education. What do we hope to achieve? The ASB committee is comprised of lawyers, judges,

educators and even a member of the Alabama Public Why civics education? Stating the obvious, people will not support nor will Television leadership. Our goal is to both create origi-

they respect what they do not understand. In my prac- nal materials and content that can be provided to our tice, I invariably hear from clients and witnesses that schools and community education programs as well as they think the “fix” is in for certain lawyers or interest to lobby for a commitment to increase civics instruc- groups in our Alabama courts. When I ask them why, tion on a consistent basis. The goals are high but the their answers usually center on their perception of stakes are high as well. If our bar does not speak out how cases are handled within our court system. Their and support the rule of law in our community, who feelings are fueled by what they “learn” from judicial will? We must take this responsibility seriously now, campaign ads or information. Perception about our not later. If we don’t, the future consequences are profession and judiciary is also blurred by the fictional obvious for our state, nation and profession. characterization of justice in the entertainment industry Please contact me if you are interested in being or by reality television shows. Add to this mischarac- involved in this effort. We want and need your help! I terization of our profession the lack of fundamental will report during the year regarding our progress understanding of our general population due to the through this publication, in the Addendum, and lack of civics instruction in our schools, and it is clear through our bar Facebook page. Please also follow we have a problem that could soon reach crisis level. me on Twitter @amspruell. Respect for the separation of powers established by Thank you again for the tremendous honor of serv- the Constitution cannot just be instantly “created” ing you this year as your president. I look forward to through a 30-minute video or even a one-semester seeing you in my travels throughout our state this year. course in middle or high school. Instead, it must be If I can provide a program to your local bar, civic group taught in our schools throughout the years of primary or community event, please let me know. LML

336 SEPTEMBER 2010 48169-1 ALABAR_Layout 1 9/10/10 1:47 PM Page 337

Want to know more? Please visit the following websites for educational materials and to find out how you can get involved:

Alabama Center for Law & Civics Education: aclce.org The Center’s 7th edition of Play by the Rules is partially funded by a grant from the Alabama Law Foundation. This won- derful publication is used in middle schools in Alabama but needs local support and funding to reach more students.

The Center for Civics Education: civiced.org The Center’s website also has a Facebook and Twitter link. The materials on this website include their Public Citizen project that encourages interactive involvement of both middle and high school students by teaching them how to do public policy problem-solving through group interaction and activity.

ICIVICS.ORG iCivics.org is a web-based education project designed to teach students civics and inspire them to be active participants in our democracy. iCivics is the vision of Justice Sandra Day O’Connor, who is concerned that students are not getting the information and tools they need for civic participation, and that civics teachers need better materials and support. Games include “Do I have a right?” that allows the student to run their own law firm that focuses on constitutional law issues; “Supreme Decision” where the student can cast the deciding vote in a real Supreme Court case; and “Executive Command” that allows the student to be President of the United States for a day. Other interactive games involve participation in making laws as a member of Congress or arguing a case in front of the Supreme Court. Teacher links are provided and encour- aged for classroom usage and application. LML

The Alabama Lawyer 337 48169-1 ALABAR_Layout 1 9/10/10 1:47 PM Page 338

From Power to Service: The Story of Lawyers in Alabama 'Wrifim by t lomcy - uthor P..:ttIBoj-d Rnmon: . Tirui.hardc:ol>u book., filled wUh pi~ many of whL h not yrc,.iowl y publhhN. · thir idru gift.

ll,t, Ill ,ry Of l.nrym Ir! mi' dt\ pmr,hi.llllfY ,i .Aulurr11,opml In l'l.f ,,ppl li.·nlllll)' ~ wid! dll' '",I~ tiru 1r:mn,rWju,: Is! Sr. ~ rht nrt di SH1k111e1U" in "'h.al ,iuld l>K"nw Abhanu. ~ru .,1111lnuaID freJ&;III d.iy Ahbona1. nttr 1hi!pr• " 1w f11""1'111., mr, itw, I t (JOOlllffllhfn.

In ~ mu will mull .t.ooad1e pn,pk 1,1,hopb11t1:n:d JJJiwni', lef,JIpro -ion. 1hr h , ,ry rht pill ,n TtiliSllll' oo ~ th fM R!IJ!k'ft'llrlh dii.' llu', JUN)' In rtw ,hi. • v.tio sh.Tpn:iic. ll's uc,.,ryoll:i"'}\!rH,hi., ..ndl!dn..iM:lll l'«ol"1'!lma1[_,n,md h..i1,.:lt.:hh<"illlrl:,11r. tr',am,ry,t ....~ rt 'l!oh:1 hdpa:!iru end tht Jofflrf,.m.,i MMahcm"'2Y • bf d1dr dn:ln.,111~T ~ ., it.la.IIUCC''• t:r,uc Cl\ 11 hl'!Cn1C'ibw)'l'rs. lei .J. tmry th •LIi 'ifflmt'II in chi!r ,n md hali.· dw '1rnK"tftllml'Ihl'l'f' pnm mi' 1,1,aylo, 11 .-- ,-.,n,ni:.,in c,1l.n, ·:,fli.

Puhhau-.:,n of diis b ,ok Is CU· F' !llli,ll'd hy rh.: H1m.,rrIOO luchl\ C,ummlCll.'I!., ~ Alwmll Sarr: l\u n !ht' ALl1*111<1Bnl(h Ind llu H wlal S. lff)'. P,nc:,Q Imm ~ ~k , i rh1, b. , ffl mt' Abl1*rm U,o,\ fo.md:id ,n and 1ho!fkoch .md 61,r H 11.,rica.l:i.-.:lny. Executive Director’s Report 339 339 Norman Lawyer Lawyer Keith B. The Alabama The Alabama

Ahead

Chief Justice Sue Bell Cobb and ASB Past President Sam visit Crosby during the annual Bench & Bar Luncheon.

Alabama Supreme Court Chief Justice Sue Bell

Challenges

committee of district

gave her “State yearly of the Judiciary” address and highlighted

At this Grand during Alabama year’s Convocation, the State Bar’s

In view of the critical of lack The Annual Meeting, Cobb the that challenges lie judicial ahead system. for It our is state’s no secret that judicial funding system for has our not state’s kept pace with increasing costs and caseloads. Increased filing fees have helped but there is a limit as to how high court filing fees should be As raised. lawyers we should not accept, and Alabama citizens do not deserve, “pay-as-you-go” a system of justice. funding and dire prospects for the legislature to provide meaningful increases for the court and circuit judges she appoint- system any time soon, Chief Justice Cobb reported on the ed almost a year ago to study work of

339 Page PM 12:49 1 9/16/10 ALABAR_Layout 48169-1 48169-1 ALABAR_Layout 1 9/10/10 2:01 PM Page 340

Executive Director’s Report Continued from page 339

the issue of dealing with the increasing caseloads of The plan is more complex than I have recounted Alabama judges. They specifically addressed the dis- above but you will hear more details about it over the parity in caseloads among the state’s district and cir- next few months. The contemplated changes will cuit judges. She estimated that it would take more require the legislature to approve a constitutional than 130 new judges to equalize caseloads statewide amendment that will have to be ratified by the voters. at a cost of more than $50 million extra, a sum which I encourage you to keep an open mind regarding this the legislature simply does not have to appropriate. plan and any others that might be offered to address In explaining the committee’s recommendations, the grave financial issues facing our court system and the chief justice reminded everyone that there were that are causing an inordinate delay in many parts of no easy solutions. She then outlined the basic ele- the state for those wanting their day in court. Some ments of those recommendations which included the individuals might consider this to be a problem for creation of a single-tier trial court system. Under this the courts to address on their own. In reality, lawyers plan, all district court judges would become circuit must join with the courts to resolve this problem on judges and district court judgeships would be elimi- behalf of all Alabama citizens. LML nated. Small claims and the limited jurisdiction of district court would be retained and jurisdiction in those matters exercised by circuit judges. To address the disparity of caseloads in the various circuits, a Judicial Allocation Commission would be created. The commission would be authorized to Student Loan eliminate a vacated judgeship in a circuit resulting U P D A T E from a judge’s death, retirement, resignation or removal from office and transfer the judgeship to another circuit. This decision would be based not on Of the 411 first-time takers of the July 2010 politics but statistical data in order to equalize the bar exam, 70 percent had student loans. The average student loan amount for those caseloads among the circuits. Under the plan the having loans was $87,588 or an increase of committee has recommended, every county would 4.3 percent over the July 2009 average. have at least one circuit judge who would run for re- election from the county of his or her residence. Obviously, this plan would be a fundamental change to our court system. Not since the adoption of the Judicial Article championed by Chief Justice Howell Heflin nearly 40 years ago has restructuring the court system been attempted. Naturally, this is an issue which is of tremendous interest to the public and especially to the bar. Alabama State Bar President Alyce Spruell has appointed a committee which will be examining this plan and will work with the chief justice to address any concerns of the legal profession.

340 SEPTEMBER 2010 48169-1 ALABAR_Layout 1 9/10/10 1:48 PM Page 341 Memorials

Bivens, John Alan Ketcham, Carleton Putnam, Jr. Birmingham Birmingham Admitted:1976 Admitted:1974 Died:May7,2010 Died:April22,2010

Blinn, George Anderson, III McEniry, Thomas Robinson SantaFe Bessemer Admitted:1953 Admitted:1945 Died:April19,2010 Died:May18,2010

Clark, Mary Anne Westbrook McRae, Claude Bennett, Jr. Birmingham Birmingham Admitted:1976 Admitted:1962 Died:April7,2010 Died:April15,2010

Clower, James Gibson Pope, Max Cleveland Troy Birmingham Admitted:1948 Admitted:1962 Died:October2,2004 Died:May13,2010

Danley, Joel Franklin Proctor, Grady Burns, Jr. Mobile Birmingham Admitted:1971 Admitted:1952 Died:May24,2010 Died:April18,2010

Eyster, John Charles Slate, Ralph Edward Decatur Decatur Admitted:1954 Admitted:1949 Died:April16,2010 Died:April16,2010

Farley, Joseph McConnell Birmingham Admitted:1952 Died:May24,2010

The Alabama Lawyer 341 48169-1 ALABAR_Layout 1 9/10/10 1:48 PM Page 342

Westlaw lntrodudng new Westlaw. Letil search goes human. The only lh1ng harder than find ng tht! ,ighl leg t docum liSl:)Si it d1r'(l11 10Q11lcklyt1ndH gin W1thW sll wN :.r';'th inform t1onvo1if1n(frn, r,s found - .me! organi~. Effortlessly drag aM drop key cases and dOOJmP.nlsnto desttop folders.Ea~lty htghllgh1 and annotate articles 10 capture essential ideas vhile adding IOU r own Your research Where vou want 1t. When yo need ,1 Rest. Assured That's knowledge 10 1. Dlscove more at WestlawN&xl.com

THOMSON REUTERS" Young Lawyers’ Section 343 Lanham A. Lawyer Clay [email protected] The Alabama IV Robertson, H. Andrew S. Nix Jon H. Patterson Larkin H. Peters Kathryn O. Pope William A. Nathan Ryan Mitesh B. Shah Tait Charles E. Tindle Scott J. Bradford Boyd Hicks Brandon D. Hughey A. Ialacci Brett William J. Long, IV Elizabeth J. Kanter Rodney E. Miller Harold D. III Mooty, Clifton C. Mosteller D. Brian Murphy S. Hughston Nichols

A. II Dickson,

Young Annual months Meeting, ago, ASB the at Two this year’s A. Clay Lanham (Mobile), president (Montgomery), Jr. vice Ward, president Navan Katherine R. Brown (Birmingham), secretary (Montgomery), Jr. treasurer Waller, Chris W. I am proud to take over and look forward to serving as president of the I also take this opportunity to recognize the members of the section’s

athan Get Involved! Lawyers’ Section (YLS) wrapped up a successful year and elected new New officers are: officers for 2010–2011. YLS of Alabama the State Many thanks Bar. immediate go to the section’s YLS leadership, Without your Bob’s past president, N. II. Robert Bailey, would not have had a such successful year. Executive Committee for the upcoming year: Mark Bledsoe Gray M. Borden David S. Cain, Jr. Louis M. Calligas N Hallman B. Eady Epiphane Sancha Cleophus Gaines, Jr. Katie L. Hammett Hickman W. Walton

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Young Lawyers’ Section Continued from page 343

The YLS has an exciting year full of events to come. • ABA Affiliate Outreach, which sends up to five Among them are: delegates from Alabama to the annual and mid- • the Fall Admissions Ceremony in October; year meetings of the ABA; and

• the Iron Bowl CLE in November; • Lawyer in Every Classroom, which provides schools throughout the state with a young lawyer • the Minority Pre-Law conferences in March and volunteer to teach one session of its Play by the April; Rules educational program. • the YLS Annual Sandestin CLE Seminar in May; and As a reminder, the YLS is open to anyone licensed • the Spring Admissions Ceremony in June. to practice law in Alabama who is age 36 or younger or who has been admitted to the bar three years or In addition, there are several other projects which less. There is no charge or membership fee to become the YLS provides support to and/or is involved in: a member of the YLS. To join, just check the box on the • Special Grants Program, which provides grants Section Membership Application. I encourage all eligi- to law-related projects and/or law-related non-profit ble lawyers to become involved in the YLS. It’s a great organizations in Alabama; way to keep up with your law school classmates and • Appleseed Heir Property Project, which is take advantage of programs targeted specifically at designed to address the inequities inherent in col- young lawyers. lective land ownership through research, communi- For more information on anything I’ve mentioned, feel ty education and awareness and pro bono repre- free to contact me or any of the officers or members of sentation of underprivileged affected parties; our Executive Committee. LML

344 SEPTEMBER 2010 Bar Briefs 345 of Smith Haston Jim Pratt to Access Lane Finch Ann Smith Lawyer Tripp Jim Thompson Janine L. George Walker Department Morgan Battle Reggie Copeland Carol Human Resources Alabama Justice Commission The Alabama LaVeeda Alabama to Battle Copeland defendants. faith, and liabil- announces a new bad Mobile has been product plaintiffs firm’s insurance, both the of mediation, home, on charge representing in Reggie Copeland -income persons in the nation. nursing focuses Alabama Department of Human Resources low

partner litigation, the practice is malpractice, his

and Access to Alabama Justice Commission commercial

medical Access Alabama to The Justice Commission was created by the Copeland The partnership with the assist foster parents in filing petitions to adopt children. Alabama Supreme April Court in 2007 to serve as a coordinating entity for the legally underserved, the social legal community, service providers and the This privatepartnership brings and public sectors. together Alabama the State Bar and Alabama the Department of Human Resources to help foster parents with the legal procedures in adopting children. , Morgan LaVeeda former Battle member of the Obama transition team, was selected to serve on the Presidential Advisory Committee for the Services Legal Search The LSC is the single Corporation largest (LSC). provider of civil legal aid for This the year, LSC received over $400 million in funding from Congress. She is a board member Alabama, of a Services Legal grantee of LSC. Adams & Reese Partner vice of chosen chair the newly Alternative created Dispute Resolution Section of Alabama the State Bar. and ity, office • • • Commission and department members include Paul Butler (De partment of Human Resources–Children and Family Services), Sharon Ficquette (chief counsel, Department of Human Resources), Senator Roger Bedford, Alabama Nancy Department Buckner of (commissioner, Alabama Methvin Human State (president, Resources), Tom Bar), Buddy per Hoo (president, Access to Alabama Hosp Justice Association), Adoptive Foster (chair, and Parents Ted and Commission) in Montgomery on the occasion of signing the Partnership Letter

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Bar Briefs Continued from page 345

• Lane Finch, a member of Hand lawyers. It honors Nina Miglionico who was one of Arendall’s Birmingham office, has the state’s first female lawyers, having been been appointed to the Steering engaged in the private practice of law from 1936 Committee for the Defense Research until her death in 2009. Smith was a founding Institute’s 2011 Insurance Coverage member of the Women Lawyers’ Section. and Claims Institute. Finch In 1984, Smith was elected by her peers to Finch has advised on insurance coverage, defend- become the first female president of the state bar’s ed bad-faith claims and litigated first-party and third- Young Lawyers’ Section. In 1996, she became the party claims in Alabama and California for 22 years. first woman elected president of the BBA in its 100+ years of existence. In 1999, she became the • At its recent annual meeting in first woman president of the Birmingham Bar Barcelona, Tripp Haston, a partner Foundation. In 1997, the Alabama Defense Lawyers with Bradley Arant Boult Cummings Association elected her their first female president LLP, was selected as a new member of the statewide organization. Her excellent service of the International Association of Haston in all of these capacities opened doors for the Defense Counsel’s (IADC) Board of women attorneys who followed her. Directors. Founded in 1920, the IADC serves an international membership of corporate and defense • Janine L. Smith, with Burr & attorneys. Forman LLP’s Birmingham office, has

• Jim Pratt and Jim been named to the 2010 roster of the Thompson, partners Birmingham Business Journal’s “Top with Hare, Wynn, Birmingham Women.” This year, ten Smith Newell & Newton, have women professionals were named by been selected as two of the publication based upon their business and civic Pratt Thompson the 2010 Lawdragon 500 accomplishments. Smith was the youngest recipi- Leading Lawyers in America. ent at 34. Pratt and Thompson were chosen from a field of • George Walker, of Hand Arendall in more than 25,000 outstanding lawyers in America. Mobile, was elected president-elect The 500 selected lawyers embody the “best of of the Association of Defense Trial lawyering in 2010.” Attorneys (ADTA) during its recent • The Women Lawyers’ Section of the annual meeting. The ADTA’s purpose Birmingham Bar Association (BBA) is to bring together selected trial Walker awarded Birmingham attorney Carol lawyers whose practices consist substantially in the Ann Smith the distinguished Nina defense of claims at the request of insurance com- Miglionico Paving the Way award in panies and self-insured companies and who have Smith June. The Women Lawyers’ Section demonstrated possession of knowledge and skills established this leadership award in 2005 to recog- necessary to provide legal services of the highest nize and honor individuals who have actively paved standard. Walker will assume the presidency of the the way to success and advancement for women association following its 2011 annual meeting. LML

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A L A B A M A S T A T E B A R

Spring 2010 Admittees

(Photograph by FOUTS COMMERCIAL PHOTOGRAPHY, Montgomery, [email protected])

S T A T I S T I C S O F I N T E R E S T

Number sitting for exam ...... 208 Number certified to Supreme Court of Alabama ...... 105

Certification rate*...... 50.5 percent Certification Percentages University of Alabama School of Law...... 76.96 percent Birmingham School of Law ...... 47.5 percent Cumberland School of Law...... 38.1 percent Jones School of Law ...... 78.64 percent Miles College of Law...... 12.5 percent

*Includes only those successfully passing bar exam and MPRE

For full exam statistics for the February 2010 exam, go to www.alabar.org, click on “Regulatory” and then check out the “Admissions” section.

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Alabama State Bar Spring 2010 Admittees

Ainsworth, Alicia Marie Fuller, Joseph Robert Morse, Kristopher Jeremiah Alexis, Kathy-Ann Marcia Garrett, DeLesha Shanna Newton, Wayman Antoninus Altazan, Blake Anthony Glenn, Stephen Beason Nix, David Bradford Atkinson, John Wesley Gossett, Matthew Ethan Owens, Joseph Merlin Balch, Matthew James Green, Michael George Parker, Steven Wayne Bates, Brandon Wade Hamilton, Lindsay Brooke Patrick, Jason Edwin Bell, Matthew Kendrick Hammond, William Luke Perkins, Michael Andrew Belvin, Mi Wu Harold, Edward Francis Perry, Richard Carl Biggiani, Brianne Harper, Tristan Kent Pettway, Felecia Zigler Blount, Edward Henry Hay, Davy Mack Phillips-McCray, Tanyanika Nicole Boyd, John Bradley Hays, Bradley Adam Powers, David Michael Boyles, Nathaniel Dodson Head, Mary Katherine Quallio, Karen Jnelle Bland Brackett, Carol Leigh Hearn, Cassandra Thompson Reeves, Timothy Dylan Brinkley, Kathryn Hazelrig Hickman, Charles Franklin Rice, Richard Allan Brinkley, Thomas Wesley Hinton, Chinita Ann Heard Roberts, Arthur Jacob Brogden, Jason Robert Hollis, Marshall Allen Romeo, Bruce Walton Broussard, Lauren Landry Howard, John Gordon Rowan, Kathryn Housh Brown, Zane Nasif Jackson, Avery Singleton Rygiel, Stephen Dennis Brown, Stephen Andrew Johnson, Travis Ryan Salsman, Micah Edward Brown, Erin Elise Johnston, Vivian Gaines Sanders, Leigh Ellen Bryant, Marcus Charles Kemmer, Richard Michael Schlichtman, Barbara Sue Brymer, Michael David Kemp, John Arthur Schonemann, Raoul Dieter Buggé, Jessica Elaine Khan, Zainab Jawad Shamsie-McCabe, Tammy Kay Burrell, Christopher Levar Klug, John Herbert Sharp, Jason Eric Burton, Richard Gilbert Koskey, Alexander Frank Sickler, William Robert Carmack, Teela Smith Lacy, Mary Ellen Simmons, Carl Wayne Chang, Se Hun Love, Jeremy Brian Stricklin, Kristen Elise Chesnut, Holly Michelle Markham, Meredith Woods Tatum, Chad M. Chuaychoo, Monchai Marlow, Michael Lynn Teague, William Clay Courville, Bethany Cobb Marshall, Amy Cauthen Thiry, Renee Elizabeth Cox, Erica Vanessa Martin, Patrick Schuyler Thompson, Emily Paige Curtis, James Peter Massey, Erin Leanne Thuston, William Lee Cushen, Milford Lee Matthews, Stephanie Kate Turnipseed, Charles Ted Davis, Matthew Steven McCants, Terrell Eugene Tyler, Temberly Renee Dennis, Joseph Stewart McCormack, Catherine Ann Van Uden, Mary Emily Dillard, Michael Ardis McCurdy, Jeffery Blaine Vester, Jennifer Ray Dorcey, Joshua Owens McMahan, Laura Maureen Walker, April Nicole Doty, Tamra Janae McWilliams, Edward Vaughn Wallace, John Clint Douglas, Heather Dawn Meyer, Scott James Watson, Bradley Joseph Drake, Robert Alexander Middlebrooks, Betty Spidell Whisonant, Michael Wayne Dunuwila, Andrea Emerson Mirza, Noreen Williams, LaTonia Marie Elijah, Kristen Leigh Moneyham, Matthew Robert Wood, Whitney Rebecca England, Jeremy Thomas Moore, Shirley M. Wright, John Philip Ezell, Christopher Hollis Moorhouse, Colin George Flores, Ronald Salvador Morris, Zachary Clay

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L a w y e r s i n t h e F a m i L y

Michael Wayne Whisonant, Jr. (2010), Mary Emily Van Uden Monroe (2009) Will Thuston (2010) and Michael Wayne Whisonant, Sr. (1980) and Walter H. Monroe (1971) Lee Thuston (1974) and Brooke Whisonant Patterson (2005) Admittee and father-in-law Admittee and father Admittee, father and sister

Jessica Elaine Buggé (2010) and Bradley J. Watson (2010) and Kathy-Ann Alexis (2010) and Brian Christopher Buggé (2000) Mark Hopper (1998) Patricia Ann Stephens (2000) Admittee and husband Admittee and uncle Admittee and godmother

William Luke Hammond (2010) and Bethany Cobb Courville (2010) and Jason Robert Brogden (2010) and Jan Schroeder Grant (1985) LeRoy Alan Cobb (1994) Robert H. Brogden (1972) Admittee and mother Admittee and father Admittee and father

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L a w y e r s i n t h e F a m i L y

Marshall Allen Hollis (2010), Erin Elise Brown Hollis (2010), Vivian Gaines Johnston, V (2010), Gregory Delona Brown (1990) and Judge Laura Phillips (1993) Vivian G. Johnston, III (1977) and Neil C. Johnston (1978) Husband/wife co-admittees, father/father-in-law and aunt Admittee, father and uncle

Joseph Stewart Dennis (2010), Richard M. Kemmer, III (2010), Mary Katherine Head (2010) and LaBella Stewart Alvis (1984) and Richard M. Kemmer, Jr. (1984) and Judge Thomas E. Head, III (1979) Joseph Gordon Stewart, Jr. (1994) Stephanie W. Kemmer (1996) Admittee and father Admittee, aunt and uncle Admittee, father and stepmother

Felecia Zigler Pettway (2010) and Karen Quallio (2010) and William Clay Teague (2010) and Judge Jo Celeste Pettway (1982) Donna Bland (1995) Matthew Patrick Teague (2002) Admittee and sister-in-law Admittee and mother Admittee and brother

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Celebrate Alabama’s Pro Bono Week 2010 By Phil D. Mitchell

n 2009, the American Bar Association Bar (ASB) Immediate Past President Tom Alabama is even to partially meet the needs approved the first-ever National Pro Methvin saw the need to extend this cele- of its poor citizens in this area. I Bono Celebration. This year, the bration in our state and appointed the sec- In efforts to combat these problems, the Standing Committee on Pro Bono and ond Pro Bono Celebration Task Force and Alabama State Bar will conduct its second Public Service of the American Bar charged it to plan and coordinate “Celebrate Pro Bono Week” during the Association will sponsor the second Alabama’s activities during this important week of the national celebration. As chair National Pro Bono Celebration, which is week. In fact, the major initiative of his of this year’s Pro Bono Celebration Task scheduled for October 24–30, 2010. This term as president was to increase and Force, our goal is to develop projects is an opportunity to celebrate the differ- expand our state’s volunteer lawyer pool. around the state that will increase aware- ence lawyers make in communities, to Current ASB President Alyce Spruell is ness within the bar of the need for and recruit and train more pro bono volunteers continuing these efforts with the goal of ways to participate in pro bono work, to and to acknowledge the partnerships that protecting the legal rights of all people liv- provide an opportunity for lawyers to con- form the basis for so many of the private ing in poverty in Alabama. tribute to their local communities, to pro- bar’s successful pro bono efforts. vide an opportunity to showcase the pro Alabama spends less on the bono work provided by attorneys through- poor than rest of country out the year around the state, and to iden- One in four needs help tify and celebrate the positive work of bar Who qualifies for such services? Currently, 873,000 Alabamians live in members. Although statewide in breadth, Families making 125 percent of the Federal poverty, and of these, one in every four Alabama’s Celebrate Pro Bono Week is an Poverty Level are eligible for free legal aid experiences legal problems. This number opportunity for local bar associations and through Legal Services Alabama (LSA) or includes over 300,000 Alabama children. attorneys across the state to plan events in through Alabama’s four organized volun- The majority of these problems are civil recognition of individuals who currently teer lawyers programs affiliated with the problems, consumer issues (creditor harass- do pro bono work and to encourage others Alabama State Bar, Birmingham, Mobile ment, utility non-payment, bankruptcy), to do the same. health issues (Medicaid, government insur- and Madison County Volunteer Lawyers ance, nursing home), family law issues programs. For a family of four, this 125 (divorce, child support/custody, abuse), percent figure equates to an annual income Want to help? employment issues (unemployment bene- of only $27,500. LSA is a federally-funded What does it take to be a volunteer fits, pension, lost employment), and hous- statewide provider of free civil legal servic- lawyer? Our state’s volunteer lawyer pro- ing issues (unsatisfactory repairs, foreclo- es funded through the U.S. Government by grams refer cases to volunteer private sure, eviction, poor living conditions). Legal Services Corporation. Its funding is attorneys who agree to provide free civil Many of these issues are critical to the based upon Alabama’s poverty population. legal assistance to low-income clients in safety and independence of these citizens. It currently receives approximately $6 mil- two cases or for up to 20 hours per year. lion annually to provide these services in Currently, there are approximately 4,400 all 67 Alabama counties. To fully fund a attorneys statewide who have volunteered. Increase and expand pool program to handle all of the civil legal Last year, these attorneys provided over of volunteers issues for the state’s poverty population 10,000 hours of pro bono service to the The celebration is a coordinated national would cost $35 million annually. Together poor. Additionally, volunteer lawyers pro- effort to showcase the great difference that with LSA’s funds, Alabama spends only $8 vided free wills to hundreds of police offi- pro bono lawyers make to the nation, its million annually on civil legal services for cers, firefighters and other first-responders system of justice, its communities and, the poor. This equates to an average of $12 through the Wills for Heroes clinics. most of all, to the ever-growing needs of per poor person. This is the lowest amount Last year, Alabama’s aggregate this country’s most vulnerable citizens. spent for the poor in the entire nation, Celebrate Pro Bono Week activities Although national in its breadth, this cele- including Puerto Rico. Nationally the aver- included it among the top celebrations in bration provides an opportunity for local age is $20 per poor person. It would take the country. With governmental proclama- legal associations across the country to $35 per poor person to fully fund a pro- tions in support of pro bono efforts, legal collaboratively commemorate the contri- gram to meet all the needs of Alabama’s aid clinics, recruitment and recognition butions of America’s lawyers and also to poorest citizens. As is abundantly clear, events, and service projects throughout recruit additional lawyers to meet the volunteer lawyers performing pro bono the state helping lawyers and law students growing need. To this end, Alabama State work are essential to fill the gap if make volunteer connections with legal aid

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organizations serving Alabamians, every the criminal defense system, the constitu- assistance has not yet been met. one of the 42 judicial circuits of the state tional guarantee of funding for low- Consequences of a lack of access to civil participated in the celebration. income Alabamians who need civil legal justice are devastating for the poor and

A collaboration of all segments of the legal community Do you represent a client who has received medical This year, the task force is working again with all segments of the legal com- benefits, lost wages, loss of support, counseling, or munity, from law students to judges. Local bar associations, Alabama’s judicial funeral and burial assistance from the Alabama associations, Alabama’s volunteer lawyer programs, LSA, Alabama’s law schools, Crime Victim’s Compensation Commission? individual lawyers, and others will collab- orate with the Alabama State Bar, through the task force, in publicizing and holding events locally as well as statewide. Last year, the task force obtained proclamations by Alabama Governor Bob Riley, by each of the three Alabama judges’ associations, by the ASB Board of Bar Commissioners and by cities and counties throughout Alabama recognizing Pro Bono Week and encouraging participation in the Alabama State Bar’s efforts in recognizing the contributions of our legal community helping those most in need. Governor Riley has already issued a proclamation declaring October 24-30, 2010 as Pro Bono Week in Alabama. Many more such proclamations are coming this year, further When your client applied for benefits, a subrogation agreement advancing the publicity of Alabama’s Pro was signed pursuant to §15-23-14, Code of Alabama (1975). If a Bono Week Celebration 2010. crime victim received compensation benefits, an attorney suing During the celebration, the task force on behalf of a crime victim must give notice to the Alabama will work with local bar presidents and bar commissioners to speak on pro bono Crime Victims’ Compensation Commission, upon filing a lawsuit and “Access to Justice” to various local on behalf of the recipient. civic organizations throughout the state. Other events planned include advice and For further information, contact Kim Martin, staff attorney, assistance clinics, including Wills for Heroes events, events providing assis- Alabama Crime Victims’ Compensation Commission at (334) tance to the elderly, events providing 290-4420. assistance on identity theft, and continuing legal education events.

Weakens our democratic society The need for civil legal assistance to our impoverished citizens is dire. Unlike

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weaken our democratic society as a I A new board of directors of the containing all the tools needed to put on an whole. Last year, more than 422,000 Birmingham Volunteer Lawyers event to celebrate pro bono, including households experienced more than Program, which includes quick and easy ideas and strategies for 733,000 legal issues. Low-income house- Birmingham Bar leadership, as well organizing events including: holds had legal assistance for only about as the presiding judge of Jefferson I Sample letters to your city and coun- 16 percent of these legal problems. If County, was appointed in 2009; ty leaders with proclamations for you you know of someone who may made I The Access to Justice Commission to customize and present to local need these services, please refer them to funded the state bar Pro Se Forms governments to recognize Alabama’s the Alabama State Bar’s Volunteer Committee for the development of Celebrate Pro Bono Week 2010; Lawyers Program, (888) 857-8571, or to approximately 20 forms, which are I Speeches, materials and handouts to a local office of LSA. available to the public on LSA’s web- give a presentation to your local civic We are making progress with site, www.alabamalegalhelp.org; clubs to raise awareness of increased pro bono efforts such as: I With the help of an Alabama State Bar Alabama’s pro bono activities; I The supreme court’s approval of Task Force, a new board of directors I Recruitment drive materials, activities mandatory IOLTA which increased was established and a new executive and enrollment forms to increase the funding for the provisions of civil director was hired to revitalize the number of Alabama’s volunteer lawyers; legal services to the poor; Madison County Volunteer Lawyers I Materials to hold a Wills for Heroes I The supreme court’s approval of an Program in 2009 and it has more than Clinic, a Counsel & Advise Clinic or increase in pro hac vice fees from tripled the number of cases referred to a Family Law Community Education $100 to $300 with the increase devot- volunteer lawyers in Madison County Clinic; and from the previous year; and ed to Access to Justice; I All-inclusive materials to hold a con- I I The supreme court’s approval of Rule Committees are being appointed to tinuing legal education program on 6.6 to allow attorneys with special assist and coordinate with the state “Professional Responsibility in Pro licenses, often retired attorneys, to bar’s Volunteer Lawyers Program in Bono Practice,” recognized by the accept pro bono cases; Montgomery, Tuscaloosa and Dothan. ASB for 1.0 hour ethics credit, for I The supreme court’s approval of Rule volunteer lawyers and those willing 6.5 relating to conflicts checks to All the tools you need to to volunteer through a VLP program. facilitate the provision of legal serv- help Contact Linda Lund, director of the ices in a clinic setting; More successful efforts must be under- ASB Volunteer Lawyers Program, at I The legislature included, and the gov- taken. You, too, can celebrate Pro Bono (888) 857-6154 to obtain these materials ernor approved, the first ever state Week through your local bar. You don’t and continue to check “Celebrate Pro appropriation specifically for “Access have an event planned for Celebrate Pro Bono Week” at www.alabar.org for infor- to Justice” issues in the FY 2008-09 Bono Week 2010 through your local bar? mation on events and how you can be a budget, which was included again in No problem! The task force has prepared a part of the celebration. the FY 2009-10 budget; CD and materials available free to you, Please join the task force’s efforts in Celebrating Pro Bono Week this October 24-30, to commend Alabama’s attorneys for their ongoing pro bono contributions and, if you have not already done so, continue the celebration by joining one of the volunteer lawyer programs in the state to provide the much-needed legal services to those otherwise unable to obtain justice. LML

Phil D. Mitchell is a shareholder with Harris, Caddell & Shanks PC in Decatur. He serves as the ASB Pro Bono Celebration Task Force chair, as a Bar Commissioner for the 8th Judicial Circuit and as a board member of Legal Services Alabama.

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Thank You, Alabama’s Pro Bono Mediators

Robert Creveling from Birmingham is presented with the ASB/VLP Pro Bono Award for mediators by 2009-10 President Tom Methvin.

Phillip Adams George Ford H.E. Nix Beverly P. Baker Robert French J. Richmond Pearson Daniel Banks Stevan Goozee John Quenelle Mary Lynn Bates Charles Griffin William Ratliff Joseph Battle Arthur Hanes Adolph Reich II Robert Boliek Jerry Hicks Benjamin Rice Charles Booth Claire Suzanne Holland Richard Riley Sarah Bowers Christopher Hughes Nicholas Roth Quentin Brown John Janecky Thomas Sherk Howard Bryan John Karrh Kenneth Simon Terry Lucas Butts Braxton Kittrell Fern Singer William Carn Oliver Latour Donna Smalley R. Garry Clem R. Blake Lazenby Steven Smith Stephen Clements Debra B. Leo Jeffrey Smith Louis Colley Rocco Leo Donald Stewart Pamela G. Cook John McClusky Robert Thetford George Copeland J. Wesley McCollum Randy Thomas James Corbett Edward McDermott Stella Tipton E. Steven Croomes Elizabeth McGlaughn Jere Trent Samuel Crosby Robert Methvin Brian Turner Dan Cushing Ed Meyerson Michael Upchurch Larry Darby R. Boyd Miller George Van Tassell John Davis James Moffatt James Vickrey Lois DiVietro Samuel Monk Michael Walls J. Robert Faulk Pamela Nail Lawrence Wettermark Charles Fleming Claud Neilson D. Scott Wright Michael Ford Randall Nichols

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ALABAMA S TAT E BA R LEADERSHIP F O RU M

Get Plugged In, Stay Passionate, Make a Difference By Rebecca G. DePalma

his past year, I have had the privi- could live up to our bar’s motto, sorry Professor Bolla), but I believe this lege of being a member of Class “Lawyers Render Service.” logic applies. Having completed the T 6 of the Alabama State Bar As part of the application process for Leadership Forum, I now have the words Leadership Forum. This program is an the Leadership Forum, we were asked to to express both what I was seeking and extraordinary opportunity for attorneys write what we hoped to gain from this what I received from this program. who have been practicing law between program. Although I, along with my Before I give away the ending, though, I five and 15 years to experience firsthand classmates, attempted to answer this will share with you the process I went the level of skill and commitment question, it is not until now, looking back through to arrive here. required to become leaders in our state on my experience, that I feel I can ade- My journey began in January at the and in our communities. Under the guid- quately respond. As my contracts profes- Grand Hotel in Point Clear. Members of ance and leadership of Ed Patterson, sor used to tell us, the best way to learn our class spent several days getting to ASB assistant executive director, my contract law is already to have had it. I know each other, exploring what skills classmates and I explored the meaning of never quite understood this at the time were required to become good leaders servant leadership and how best we (and actually am still a bit mystified— and learning how proven leaders had met specific challenges that they faced. Some of the highlights of that session included a leadership workshop with consultant “A great leader’s courage to fulfill and leadership trainer Allison Black Cornelius, where we explored our leadership styles and how we inter- his vision comes from passion, acted with others. We also heard from a variety not position.” of speakers. David Bronner, chief –John Maxwell executive officer of Retirement Systems of Alabama, told us “if you have to ask per- mission you are not a leader.” Joey Jones, University of South Alabama head coach, challenged us to have a moral compass as we go through life. Dr. Wayne Flynt, author of Alabama in the Twentieth Century, discussed the issue of Alabama’s Constitution and advised us that unless we were able to sit down in small groups and really listen to one another and build a consensus, nothing at any level or in

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ALABAMA S TAT E BA R LEADERSHIP F O RU M

COMMENTS FROM CLASS 6 ALUMNI any group would change. Both the former Lawyers Program. Later, we attended a mayor of Mobile, Mike Dow, and the cur- graduation banquet and were officially “The Leadership Forum is rent leader, Sam Jones, reminded us that to recognized as the sixth graduating class be successful leaders, we had to be willing of the Leadership Forum of the Alabama relevant, energizing and to make the hard choices and the necessary State Bar. infectious!” changes. Our tour of Mobile’s shipbuilding After five sessions in four different facility, Austal USA, served to emphasize cities and listening to numerous proven this point by illustrating the caliber of busi- leaders examine what leadership entails, “The speakers/content, etc. ness interests our state could attract with finally I was able to answer the question have been terrific. Continue to the right leadership. posed to me on the Leadership Forum maintain/improve the quality In February, we attended the second application. What I was seeking when I session in Montgomery, “The Legislative applied to be a member of Class 6 of the level, particularly quality level Process and Economic Development.” We Alabama State Bar Leadership Forum of speakers which has been toured the state capitol and heard from was a connection with others who shared outstanding. It has made me several legislators. We concluded the ses- a passion for making a difference and a sion with a tour of one of Alabama’s commitment to doing so. I have had the engage in self-examination as biggest economic development success great privilege of becoming acquainted a leader and as a person. The stories, the Hyundai Plant. with many individuals who are both pas- Our third session, in March, “Black sionate and committed to serving the forum has also allowed me to Belt: Struggles & Triumphs,” took us to needs of others, whether through elected meet and spend time with Tuskegee, where we confronted the past office, education or volunteer programs. some awesome people.” and current challenges of that region. And, in particular, I have had the honor Fred Gray, attorney for Rosa Parks, spoke of sharing this journey with the remark- to us about what it was like to practice able group of individuals who make up “The Leadership Forum is law during the Civil Rights era. Gray Class 6 of the Leadership Forum. I well-crafted, organized and reminded us that as lawyers it was up to believe that together our passion and us to continue to stand up for the rights of commitment can and will make a differ- well done. I don’t regret hav- individuals. ence, and I encourage anyone who shares ing entered [into] it, and I We returned to Montgomery in April these to consider applying to become a genuinely looked forward to for our fourth session, “Leadership member of Class 7 of the ASB through Education.” We learned about the Leadership Forum. LML each meeting we had.” educational challenges facing our state and observed how E. D. Nixon “The introduction to other Elementary School had met these chal- like-minded attorneys who lenges to receive the prestigious Torchbearer Award. Rebecca G. DePalma want to move their state and In May, our final session, “Access to is a shareholder with bar forward is the most useful Justice,” was held in Birmingham. We the Birmingham firm focused on the problems facing our own of White Arnold & aspect of the forum to me. I profession in meeting the needs of those Dowd PC. She is a have been inspired by the less fortunate than ourselves. Several graduate of Queens leaders who helped change ASB members shared their experiences College and the in providing legal services to the poor, Cumberland School Alabama for the better, and including ASB President-Elect Alyce of Law. She repre- have enjoyed meeting other Spruell, who challenged us to do our part sents clients in civil litigation, including state attorneys from around the state in providing legal services for indigent and federal class actions, mass torts, cam- Alabamians by joining the Volunteer paign finance matters and environmental law. who have the same goals.”

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ALABAMA S TAT E BA R LEADERSHIP F O RU M Answering the Call to Leadership By Derrick A. Mills

hat do attorney Fred Gray, Leadership Forum is fundamentally differ- Retirement Systems of ent. Rather than start from the premise W Alabama CEO David Bronner that leadership can be taught, the and Thomasville Mayor Shelton Day Leadership Forum focuses on selecting have in common? They are all strong and and then challenging individuals who effective leaders who care about the have shown an interest and ability to future of Alabama. They were also reject the status quo and have a desire to among the speakers who addressed Class really make a difference in the bar and our 6 of the Alabama State Bar Leadership communities. In other words, the goal of Forum. I was fortunate to have been one the Leadership Forum is to “promote” of 30 lawyers chosen to participate in leadership, not to “teach” it. this year’s Leadership Forum. During the opening session, we were Please forgive the cliché, but the ASB introduced to the concept of “servant lead- Leadership Forum is not another typical ership.” We learned that servant leader- leadership class. Like many of you, I have ship is the ultimate, selfless practice of been involved in several “leadership train- leadership, where servant leaders are ing” workshops and seminars. Let’s face responsible for the group, organization it–lawyers are usually tapped for these and/or people they are leading/serving. seminars because we are smart, hardwork- Put another way, servant leaders are pur- ing and typically a bit more socially adept pose-driven advocates who seek transfor- than nuclear physicists or arborists (no mational results for the people they are offense to anyone). Most of the other serving. Martin Luther King, Jr., one of “leadership training” seminars in which I the best known servant leaders, said, participated were how-to lectures on spe- “Life’s most persistent and urgent ques- cific leadership skills. The ASB tion is, ‘What are you doing for others?’”

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Both King and his poignant question talents for more public good, through embody what servant leadership is all community service, pro bono work, etc. about. Servant leadership is the theme of After having observed some of the great the Leadership Forum. leaders in this state, I believe the common Class 6 of the Leadership Forum was thread that binds together strong leaders is exposed to a diverse group of established their commitment to service. During Fred leaders who have all sacrificed on behalf Gray’s presidency, the Alabama State Bar of our state in government, business and appropriately adopted the motto, “Lawyers education, as well as in the practice of law. Render Service.” To me, this motto is spe- Each month, from January through May, cial. Not only do we lawyers render serv- our class gathered in different locations to ice to our clients, but we render service to COMMENTS FROM CLASS 6 ALUMNI learn about the issues facing the state bar our state bar, our communities, our state and the state of Alabama. Our challenge and our nation. Lawyers are committed to was not necessarily to debate the best solu- service, but true leadership–that unique, “I have been greatly impressed tions for society’s problems, but, rather, to transformational leadership that reaches by the combination of servant- answer the call to leadership. people and actually makes a difference in In January, we learned about the their lives–starts with caring. True leaders leadership theory and practice remarkable progress Mobile has made (servant leaders) are hardworking, passion- included in the Leadership under the leadership of former Mayor ate and results-oriented, but, most impor- Mike Dow and current Mayor Sam Jones. tantly, they care. Leaders care about the Forum experience, the truly We also observed the passion of Dr. communities, the causes and the people unique opportunity to explore David Bronner, as he shared his vision of they serve. If you truly care about your what Alabama could achieve over the next state bar, your communities, your state, leadership issues with other decade with strong leadership, and, on the and nation, please consider answering the aspiring bar leaders and a other hand, where Alabama is headed call to leadership and “Render Service.” absent fundamental change. Our February If you are an ASB member who has coming-together of servant- meeting was conducted in Montgomery practiced not less than five and not more minded lawyers who bring an and focused upon government. We inti- than 15 years, I recommend that you apply mately witnessed the law-making process, for membership in the 2011 class of the optimistic attitude toward the as our session coincided with several Leadership Forum (Class 7). Applications challenges that face our state bingo rallies that took place at the capitol. are available at www.alabar.org under the We also engaged in question-and-answer programs/department link “Leadership bar now and in the future.” sessions with several legislators, including Forum.” The deadline for applications is Senator Rodger Smitherman and November 1, 2010 and applicants will be “In my view, there is no other Representative Paul DeMarco. notified on or before December 13, 2010. Tuskegee University graciously hosted Applications will be reviewed in the order group leadership learning our March session, and Alabama’s Black in which they are received. Mandatory opportunity that brings Belt was our focus. We heard from noted attendance is required for all sessions. civil rights’ attorney Fred Gray and the Session dates and locations will be together more servant-minded innovative Mayor Shelton Day. Through announced. LML lawyer-leaders from such a extraordinary vision and leadership, these gentlemen have truly made the lives of diverse cross-section of our Alabamians better. During our April ses- Derrick A. Mills state than the ASB Leadership sion, we learned from Alabama leaders in practices with Marsh, education. One of the highlights of the Rickard & Bryan PC Forum.” education session was the story of E. D. in Birmingham. He Nixon Elementary School in graduated from the “I think the forum is building a Montgomery. Through Anthony Lewis’s University of North leadership, the school literally trans- Alabama and the solid base of people in our pro- formed from a typical “inner-city school” University of fession who want to continue into a Torchbearer School, a statewide Alabama School of recognition of being a “high-poverty, Law. Mills is currently the president of the to work to change and improve high-performing school.” Our last class Magic City Bar Association, was a partici- our state. Our group could pro- was inspired by Justice Bernard pant in the inaugural class of the Birmingham Harwood, Bobby Segall, Dean Charles Bar Association Future Leaders’ Forum and duce the future governors, leg- Gamble, Alyce Spruell, and other leaders is an alumnus of Class 6 of the Alabama State islators, judges, business lead- of the state bar regarding access to jus- Bar Leadership Forum. He was recently elect- tice and professionalism. Each of them ed to the Board of Bar Commissioners, ers, etc. of Alabama.” passionately pleaded for us to use our Circuit 10, Place No. 9.

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COMMENTS FROM CLASS 6 ALUMNI

“The forum hasn’t just pitched a ‘laundry list’ of generic ‘how-to-be-a-leader’ topics at us. The forum has gone the additional step of presenting us with the issues and areas in our state that need our leadership. After leaving each session, I have felt motivated and inspired to Selection Criteria continue to work hard and learn more so that I will be Background and Mission Morris, ASB President Thomas J. Methvin introduced Lt. Col. Bruce The Alabama State Bar (ASB) Board ready for whatever opportuni- Bright, USMC (Ret.), CCIM, director of of Bar Commissioners initiated the ties there are for me to serve.” business development at The Sanders Alabama State Bar Leadership Forum in Trust, who spoke on “Your Future is 2005. The mission of the Leadership Looking BRIGHT.” President Methvin “The amazing speakers and Forum is to: (a) form a pool of lawyers and Edward M. Patterson, ASB assistant from which the Alabama State Bar, state field trips and extraordinary executive director, presented each graduate and local governmental entities, local bar experiences this class offers with a certificate and a compass commem- associations and community organiza- orating their participation in the forum. set it apart. In addition, the tions can draw upon for leadership and Andrew S. Nix, member of Class 6, then service; (b) build a core of practicing opportunity to interact with made a special presentation in memory of lawyers to become leaders with respect established leaders from all Lee Huffaker, an honorary member of to ethics and professionalism, resulting in Class 6. Two graduates of Class 6, over the state and to build raising the overall ethical and profession- Rebecca G. DePalma and Derrick A. al standards of lawyers in the communi- relationships that will last for Mills, shared their experiences. ty; and (c) raise the level of awareness of years to come makes this Also in attendance were Alyce M. lawyers as to the purpose, operation and Spruell, ASB president-elect; Phillip W. program very special.” benefits of the Alabama State Bar. McCallum, vice president; J. Mark With six years of graduates, the White, immediate past president; 10th Leadership Forum continues not only to “The most useful aspect of Circuit Bar Commissioners Augusta S. meet, but exceed, its mission. The over- the Leadership Forum is the Dowd and Jack Neal, Sr., and his wife, whelming response of the 172 former Carolyn; Gregory H. Hawley, president, opportunity to see different graduates about their Leadership Forum Birmingham Bar Association; and Mike experience includes praise for the pro- styles of leadership which and Mickey Turner, forum corporate gram and enthusiasm about relationships have been successful in vari- sponsors from Freedom Court Reporting. fostered during the forum. Leadership Family and special guests representing ous arenas. The speakers are Forum alumni include a member of the the Huffaker family included Caroline state house of representatives, bar com- very inspiring and the tours Voitier Huffaker, Robert Huffaker, R. missioners, local bar presidents, candi- are informative. I highly rec- Austin Huffaker, Maibeth Jernigan dates for public office, judges, a pastor, Porter, James P. Naftel, II, and his wife, ommend the program.” former military officers, a mayor, and Kappi. Forum alumni attending included leaders of our state bar organizations, Jenna Bedsole, Teresa Minor and specialty bars and sections. “What has changed is that I Rhonda Wilson (Class 1); Matt Minner am now better informed about (Class 2); Brent Irby and Sandra Reiss a wide variety of issues facing 2010 Leadership Forum (Class 3); Anne Durward, John England, Clay Ryan, Brian Strength, the state and therefore can (Class 6) Ashley Swink, and Tom Warburton more effectively engage others The sixth class graduated May 20, 2010 (Class 4); and Lara McCauley Alvis, in discussions about looking and 100 graduates, alumni and guests John Dana, Brandon Falls, Othni attended the affair. Following an invoca- Lathram, Erin May, Chris Mixon and for solutions to those issues.” tion by Class 6 member L. Benjamin Hays Webb (Class 5).

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Selection Process and Criteria The 2011 Steering Committee is actively involved in planning Class 7. The Leadership Forum will continue to honor its mission through an evolving and expanded program designed to introduce participants to leadership opportunities in the state, the legal profession, education, business, industry, and social services. Key benefits of the program include (a) exploring the dimen- sions of executive leadership to strengthen personal and organizational effectiveness Pictured above are some of the members, speakers, sponsors and planners of the 2010 Leadership Forum. and enhance career potential, (b) understanding the role of a lawyer-servant leader in an increasingly global business/ legal environment and (c) experiencing action Members of the 2010 learning that focuses on teamwork, problem-solving and self-discovery. Leadership Forum Class Each year, the Selection Committee seeks to draw a broad and representative John A. Baty Jefferson County District Attorney’s Office Birmingham class of 30 members from throughout the Robin L. Beardsley Sirote & Permutt PC Birmingham ASB membership. Those suggested by the Kevin L. Boucher Mobile County Attorney’s Office Mobile Selection Committee are then reviewed by Steven M. Brom The Brom Law Firm LLC Birmingham the ASB Executive Committee, and the final selection is made and approved by Brian V. Cash The Perkins Group Birmingham the Board of Bar Commissioners. A nomi- Joel D. Connally Strength & Connally LLC Montgomery nation is not required for applicants to sub- Christopher W. Deering Ogletree Deakins Birmingham mit their application. One letter of substan- Rebecca G. DePalma White Arnold & Dowd PC Birmingham tial recommendation must be attached to the application. Nicole S. Diaz University of Alabama School of Law Tuscaloosa If you have been a member of the ASB Glenda B. Gamble City of Tuscaloosa, Office of the City Attorney Tuscaloosa for more than five years but no more than Monica G. Graveline BBVA Compass Bank–Legal Department Birmingham 15, please consider applying to become a Brandy O. Hambright Hicks, Matranga & Hambright Mobile member of the ASB’s 2011 Leadership Forum. Following receipt of all applica- Tyrell F. Jordan Balch & Bingham LLP Birmingham tions, the Selection Committee reviews the Derrick A. Mills Marsh, Rickard & Bryan PC Birmingham applications for the following criteria in Larry B. Morris Starnes Davis Florie LLP Birmingham making the initial selection decisions, with Anil A. Mujumdar Haskell Slaughter Young & Rediker LLC Birmingham special emphasis upon the first two criteria: Andrew S. Nix Maynard, Cooper & Gale PC Birmingham 1. Leadership ability based on past accomplishments and current engage- Jennifer C. Pendergraft Ogletree Deakins Birmingham ments; William I. Powell District Attorney’s Office Florence 2. An understanding of the importance Angela S. Rawls Madison County Volunteer Lawyers’ Program Huntsville of servant leadership as shown in the Katrina Ross 10th Judicial Circuit, Jefferson County Birmingham applicant’s narrative; Joi C. Scott Christian & Small LLP Birmingham 3. Previous application to the Leadership Jay E. Stover Stover, Stewart & Phillips LLC Gadsden Forum; Brian A. Wahl Bradley Arant Boult Cummings LLP Birmingham 4. Practice diversity (criminal, civil, governmental and corporate); Todd B. Watson District Attorney’s Office Evergreen 5. Geographic diversity; and Leslie G. Weeks Helmsing, Leach, Herlong, Newman & Rouse Mobile 6. Racial and gender diversity. William C. White, II Parkman, Adams & White Birmingham Class 6 alumni are listed in this article Tamula R. Yelling Constangy, Brooks & Smith LLC Birmingham if you would like to find out more about Cinda R. York Regions Bank Birmingham their experiences. To download an appli- N Honorary Member (posthumous), 2010 Leadership Forum N cation to the 2011 program, go to http:// Matthew Lee Huffaker www.alabar.org/members/leadership- update.cfm. LML

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364 2010 ASB Annual Meeting Award Recipients 2010 SEPTEMBER John Jr.Scruggs, “Bill” D. William the of two with Scruggs, Kay and (2006) Boyd Dave winners, Award Bar the to Service Lentine Walter P.Walter Judge Award CLE Gewin TomTedPresident with (left), Methvin Hosp Jr.Scruggs, “Bill” D. William and P. D R A W A Award Bar the to Service Gewin his recipient Merit of Award daughter, Jr.Harris, Ben (2010) Merit of Award CLE Award 0 1 0 2 Jennifer, from President as B S A he accepts Methvin. the S T N E I P I C E R l a u n n A Judge Justice’s(Chief McElvy Douglas and Merit) of Award (Judicial Bar Bar,Local County a Calhoun/Cleburne accept the of both Bar County Huntsville-Madison the include recipients Other Justice’sChief Award Professionalism (right), Broome William and (left) Gruenewald John other.each congratulate Award) Professionalism Cobb Bell Sue Justice Chief recipients Award Methvin. President from Award Achievement g n i t e e M TuscaloosaAssociation. the Bar and County Awards Achievement Bar Local Merit of Award Judicial 2010 ASB Annual Meeting Award Recipients 365 365 Lawyer Lawyer The Alabama The Alabama Kelli Mauro Emily Marks Real Property Blakely Davis Angela Rawls Jefferson County Senator Arthur Orr Senator Ben Brooks Sara Dominick Clark Circuit Awards Senator Roger Bedford Lawyers’ Section Young Barbour/Bullock counties Senator Wendell Mitchell Legislative Awards Representative Cam Ward Section and Judicial Irons Representative Tammy Law Probate Section & Trust Representative Marcel Black Representative Greg Canfield Alabama Law Institute Commissioners’ Award Maud McLure Kelly Award Special Recognition Awards John Wilkerson, clerk, Alabama Court of Civil Appeals, accepts the Commissioners’ Award from President Methvin. M e e t i n g Raleigh, Dumas. Royal Richard and Mediation Award Creveling Robert W. A n n u a l Firm/Group Award Wooldridge, of Adams & Reese LLP RECIPIENTS McCallum, Scott Hetrick, accepting on behalf Robert Phillip right, A S B to Methvin), left Awards President’s were, 2 0 1 0 (President Lund, recipients Clayton Tartt Linda

Lawyers Volunteer Program Law Student Award AWARD Award Henry Callaway

Al Vreeland Award Clarence Darrow : Lynne Goudie, Award Valerie Carey Neal Kirby Rogers,

Anita Hamlett, accepting on behalf of

Alan Recipients Award Bono Pro President’s

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Wednesday

Plenary speaker Egil Krogh autographs a copy of It’s all smiles for Past President Mark White, his Integrity: Good People, Bad Choices and Life wife, Carol Ann Hobby (left) and President-elect Lessons from the White House for ASB member Alyce Spruell. Sandee Childress Hughes of Huntsville.

Bar Commissioner Pete Short Phil Mitchell, Pro Bono Celebration Task Force chair, receives a warm welcome back and and President-elect Alyce Spruell share enthusiasm The Fun Police on patrol at the Family Pizza standing ovation from fellow commis- over the governor’s proclamation declaring October and Movie night sioners. 24-30 as Pro Bono Week in Alabama. Annual ASB Meeting Photo Highlights 2010

As the sun went down, all ages found something to Everyone loves Grover and Elmo! enjoy on the pizza buffet. Thursday

Proof that opposites can attract, and entertain, were U.S. District Judge Thomas Marten and Grammy-winning singer-songwriter Panelist U.S. District Judge Sharon Blackburn ALI Don Schlitz. speaker LaVeeda Morgan Battle.

Photographers and VLP directors Blakely Davis (right) and Linda Lund being photographed at the Even the heat and humidity couldn't keep attendees from enjoying the Bloody Mary and Bench & Bar luncheon. Mimosa Reception. 366 SEPTEMBER 2010 48169-1 ALABAR_Layout 1 9/16/10 12:50 PM Page 367 2010Highlights Photo Meeting ASB Annual

Debbie McCune (Freedom Court Reporting) Monet Gaines, at-large board member, is allowed Another aspiring artist is discovered "chats" with the GEICO gecko. to help a little with her daughter’s Paint’n’Place Thursday afternoon! pottery project.

The music of “Jones & Company” at the Rainbow Reception to get out on the dance floor. . . including a past president of the ASB. inspired everyone. . . Friday

All of the past presidents in attendance shared breakfast and “war stories” Friday morning. In order of their Plenary speaker and Georgia crimi- year of service were, front row, left to right, Chief Justice Sonny Hornsby, Walter Byars, Ben Harris, Alva nal defense lawyer Bobby Lee Cook, Caine, Spud Seale, Johnny Owens, and Wade Baxley. Back row, left to right, were Sam Rumore, Larry right, and Jimmy Fry, director, Legal Morris, Bill Clark, Doug McElvy, Bobby Segall, Boots Gale, Sam Crosby, and Mark White. (Not pictured Services Alabama. was former ASB Executive Director Reggie Hamner, who was working to get everyone in his proper place.)

Always a crowd-pleaser is Archie Examples of service to the bench and bar are U.S. Manning, speaker at the Sports District Judge Sharon Blackburn and U.S. Attorney Tailgate Party Luncheon, with a win- Joyce Vance (both Friday morning speakers), President- ner of one of the three Manning family Always popular are Deano Minton and his elect Jim Pratt, Past President Mark White, and Bar jerseys. caricatures of attendees and their children. Commissioner Anthony Joseph. The Alabama Lawyer 367 48169-1 ALABAR_Layout 1 9/16/10 2:14 PM Page 368

Elmo makes another friend (tentatively) Once again, the children’s events prove to be a Getting stuffed and stitched are the first steps to before the Build-A-Bear party. hit with the parents too! “Build A Bear.”

Appie Millsaps, (foreground), and ALAP director Judge Thomas Marten is considering whether he’ll Jeanne Marie Leslie getting everything in place for Having a “twin” is a lot of fun! need a reminder of his time in Sandestin once he’s the Fifth Annual Silent Auction Fundraiser back in Witchita. Annual ASB Meeting Photo Highlights 2010 You never know who’ll run into at the annual meeting!

As his year as ASB President winds down, Tom Methvin and wife Amy After a long day, it’s good to enjoy some family time at the Paradise Island Feast with his brother and relax with friends. Saturday fellow ASB member, Bob, and his family.

Mickey and Mike Turner (Freedom Court Reporting) with Stephen Brown, first-place male attorney winner of the Legal Run-Around

The Turners (center) with Cheryl Looking as young as ever were those honored for 50 years of practice, including, front row, left to right, Chapman, first-place female attorney Boron Martin Ray, William Jennings Benton, Sr. and Judge W. Harold Albritton, III. In the back row, left to Legal Run-Around winner, and right, were R. Kent Henslee, Judge John V. Denson, II (ret.), Broox G. Holmes, Willis Hallman Hendrix, another race participant Robert C. Barnett, J. Mason Davis, and former Chief Justice Ernest C. Hornsby.

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“Behind every great man is a woman” (or Bill Bass (left), president of ISI Alabama, con- ASB President Alyce Spruell gets a hug from two) sums up Amy Methvin and Anna Pender- gratulates Patrick Jones, winner of the “Viva her Mississippi counterpart, Nina Tollison of Pierce’s support during Tom Methvin’s term Las Vegas” grand prize trip (and a chance to Oxford, who also assumed office as president as ASB president. meet Elvis!). in July.

The Spruell-Manly family together one more time, right after Alyce Spruell starts her term as the 2010-11 president of the Alabama State Bar. Pictured with President Spruell (center) are niece Shannon Manley, nephew Rich Manley, sister-in-law Carol Manley, brother Richard Manley, father (and former ASB bar commissioner) Rep. Rick Manley, husband Bruce Spruell, son Taylor Spruell, and daughter Cameron Spruell. Not pictured is nephew Winston Manley.

Three faces of the ASB: President-elect Jim “First Husband” Bruce Spruell (right) enjoys Looking forward to next year’s meeting July 13-16, Pratt, President Alyce Spruell and the Presidential Reception with Judge Philip 2011 at the Grand Hotel are former bar commis- Immediate Past President Tom Methvin Reich. sioner John Gruenewald and VLP Director Linda Lund. The Alabama Lawyer 369 48169-1 ALABAR_Layout 1 9/10/10 1:51 PM Page 370

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Do You Know about the Alabama State Bar’s Client Security Fund? By Julia Smeds Roth

he Alabama State Bar has a Client Security Fund (CSF) A claimant to the fund must complete the fund’s application which reimburses clients who have been deprived of their which includes information about the nature of the loss. The T funds from lawyers they hired to represent them. The CSF applicant must also provide a statement that the loss is not cov- is a valuable service of the Alabama State Bar, and this article ered by insurance, indemnity or bond. Applicants may also be will explain the fund, its history and its status. The current fund required to file disciplinary, criminal or civil complaints before was established by the Alabama Supreme Court by order dated recovery is allowed. May 5, 1987. The fund’s operating rules, effective October 1, The fund will only pay a claim resulting from a lawyer’s dis- 1987, “govern proceedings conducted upon applications for reim- honest conduct acting as a lawyer or as a fiduciary in a matter in bursement from the Client Protection Fund of the State Bar estab- which the loss arose, and the lawyer has died or disappeared; lished pursuant to Rule of the Alabama Supreme Court.” been adjudicated bankrupt or incompetent; been disbarred, sus- Effective March 30, 1988, the fund is financed through an pended or voluntarily resigned from the practice of law; become assessment of $25 to each lawyer who, on January 1 of each year, a judgment debtor of the claimant; been adjudged guilty of a holds a current occupational license to practice law. The fee has crime as a result of dishonest conduct; or the CSF Committee, been assessed for four years for a maximum of $100 per lawyer. in its discretion, determined a reimbursable loss has occurred. Lawyers who have obtained the age of 65 years and have elected The lawyer’s dishonest conduct must have occurred while as an to retire are exempt. A subsequent amendment exempted lawyers active member of the Alabama State Bar, although the lawyer’s with “special memberships” defined in Section 34-4-17 and 18 of conduct does not necessarily have to have occurred in Alabama. the 1975 Code of Alabama as “an attorney not engaged in the The maximum amount that a claimant can receive is active practice of law in Alabama” (i.e. judgeships, attorneys gen- $10,000. The aggregate maximum amount paid per lawyer is eral, U.S. Attorneys, district attorneys, etc.). Lawyers entering the $20,000. If multiple claims exist against a single lawyer, jurisdiction pro hac vice and as in-house counsel are also current- claimants may only receive a pro rata share of the $20,000 max- ly exempt. Records indicate that the fund has consistently collect- imum. The CSF Committee has no discretion to exceed caps. ed between $50,000 and $53,000 in annual assessments since Rule 29 claimants who are requesting trustee fees may request 2003. The fund currently has approximately $1.8 million in payment of fees directly from the CSF. The maximum that a reserve. This reserve is considered small in comparison with other Rule 29 claimant can receive in fees is $10,000. The $20,000 states’ reserves. The reserve has not grown in recent years as the limit does not include payments made to Rule 29 claimants. number and amount of claims have increased. The statistics for the CSF show that from August 22, 2009 to The fund supports two types of claims. The first are from June 20, 2010, 92 claims have been filed. The total dollars in those resulting from aggrieved clients of lawyers committing claims paid in that period were $71,539.48. Claim payments are dishonest acts. Pursuant to Rule 29 of the Alabama Rules of exceeding current income. Disciplinary Procedure, the fund also pays for fees from The CSF Committee has determined that the limits placed on lawyers assigned as trustees when a lawyer dies, disappears, is the amount of reimbursement are very low, in fact some of the disabled or becomes incompetent. lowest in the nation. There have been many situations where the The fund is administered by seven members of the CSF amounts claimants have requested far exceed the maximum limits, Committee appointed by the president of the Alabama Bar. sometimes by many thousands of dollars. In those situations, the Presently, all committee members are lawyers. The CSF Committee CSF Committee must pro rate the reimbursement, and, in some members are appointed to three-year terms, and may serve two con- instances, payments to claimants were just cents on the dollar. secutive terms. CSF Committee members are volunteers, but are In 2008, ASB President Sam Crosby appointed a task force entitled to reimbursement for all reasonable related expenses. The to evaluate the CSF regarding current funding, reimbursement committee meets three to four times a year as needed and as claims caps and necessary revisions to the CSF Rules of the Alabama are processed by staff for consideration. Current members are: State Bar. The original members of the CSF Task Force were Julia Roth, Jim Ward, Timothy Dillard, Zondra Hutto, Mike Officers Derrick A. Mills Ex-Officio/ Ballard, Gilda Williams, bar commissioner Elizabeth Parsons, Michael E. Ballard, Paul. W. Patterson, II President-Elect chair James R. Pratt, III and ASB staff liaisons Robert Lusk and Laurie Blazer. Bruce F. Rogers Gerald R. Paulk, On September 12, 2008, the Board of Bar Commissioners vice chair Sydney S. Smith Staff Liaisons approved a request from the CSF Committee and CSF Task Force James S. Ward Angela Parks to allow the American Bar Association (ABA) Standing Committee Members Executive Robert E. Lusk on Client Protection to send a consultation team to conduct an on- Timothy Lee Dillard Committee Liaison site consultation regarding the Alabama State Bar CSF. This con- Zondra T. Hutto Billy C. Bedsole sultant was provided without charge to the Alabama State Bar.

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On January 9, 2009, the ABA team conducted the on-site • Expand the definition of “lawyer” to include all lawyers consultation, which included interviews with ASB President licensed or authorized to practice law in Alabama, and all Mark White, President-elect Tom Methvin, Executive Director lawyers admitted pro hac vice. Keith Norman, General Counsel Tony McLain, Assistant General Counsel Robert Lusk, CSF Administrator Laurie Blazer, • Increase the maximum amounts of recovery of $10,000 per members of the CSF Committee and Task Force, and Associate claimant and $20,000 for the aggregate to $75,000 per Justice Thomas Woodall. In addition, the ABA team reviewed claimant and an aggregate of $200,000 per lawyer. pending and closed files, current rules, policies and procedures. On February 26, 2009, the ABA team submitted their report, • Require that all lawyers authorized to practice law in which contained a comprehensive review of the CSF, as well as Alabama, including occupational and regular license-holders, recommendations and proposed revisions to the CSF rules. (A copy special license-holders and authorized in-house counsel, be of this report was provided to the Board of Bar Commissioners at assessed $25 annually. Recommend that the exemption for its July 2009 meeting.) In April 2009, ASB President Mark White retired lawyers, who are 65 years or older, be maintained. appointed Associate Justice Thomas A. Woodall, J. Bentley Owens, III, Kate Musso and Stanley F. Gray as additional members to the • Recommend that the CSF Committee review the annual CSF Task Force. Since then, the CSF Task Force and CSF assessment and report to the Board of Bar Commissioners on Committee have evaluated each of the recommendations of the the sufficiency of the annual assessment in relation to claims ABA team, keeping in mind considerations such as providing ade- history and the financial stability and integrity of the CSF. quate client protection, the available resources of our membership, protecting the stability of the CSF and avoidance of unnecessary • Recommend that two non-lawyers be added to the CSF additional regulation of the practice of law in Alabama. Committee. Recently, the CSF Task Force and the CSF Committee submitted recommendations for approval to the Board of Bar • Recommend that the definition of dishonest conduct be Commissioners, along with a request to authorize the general amended to include failure to refund unearned fees. counsel to petition the Alabama Supreme Court to amend the CSF Rules of the Alabama State Bar to be consistent with these • Prepare an annual report to the Board of Bar Commissioners recommendations. The recommendations include: and the supreme court.

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These recommendations are currently being considered by the Board of Bar Commissioners, who was presented with the recommendations at the ASB’s annual meeting two months ago. The CSF Task Force and the CSF Committee firmly believe that in order to ensure public confidence in lawyers, the maximum amounts paid to those claimants who have been wronged by their lawyer must be increased. Such an increase will instill confidence in the Alabama State Bar’s ability to police its own and to make those claimants whole for the terrible wrong caused by their lawyer. LML NO MILEAGE FEE!!!

STATUS AVAILABLE VIA WEBSITE

SERVING YOU THROUGHOUT ALABAMA AND BEYOND

AUTOMATED UPDATES EMAILED FOR EACH ACTION ON YOUR CASE Julia Smeds Roth is a partner at Eyster, Key, Tubb, Roth, Middleton & Adams LLP in MEMBER NATIONAL ASSOCIATION OF Decatur. She served as chair of the Alabama PROFESSIONAL PROCESS SERVERS State Bar Client Security Fund Task Force appointed by President Sam Crosby in 2008, Main Office which completed its work in May of this year. 35903 Highway 280 Sylacauga Al 35150 She also served as chair of the ASB Client Phone: 205-995-9633 Fax: 205-995-9733 Security Fund Committee. Satellite Locations She concentrates her practice in the areas of Tuscaloosa, Birmingham, Troy & Florence general civil litigation, wills, trusts and estate planning, and family law. Roth is a graduate of the University of Alabama (with honors) and the Locations Opening Soon University of Alabama School of Law. She served as law clerk to the Montgomery, Huntsville, Mobile Honorable Sam C. Pointer, Jr., chief judge of the United States District Court for the Northern District of Alabama.

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by Stephen Gidiere,Gidiere, MikeMike FreemanFreeman andand MaryMary SamuelsSamuels

hen the Deepwater Horizon livelihoods of those who rely on a Hundreds of millions of dollars have oil rig exploded and sank in healthy Gulf of Mexico. already been spent in clean-up costs and W the Gulf of Mexico April 22, The legal landscape surrounding the oil interim claims payments. Undoubtedly, 2010, few imagined the environmental spill, like the response, can also be billions of additional dollars will trade disaster that was brewing below the sur- described as confused and uncertain. hands but how will this process proceed? face. To be sure, early reports of missing Many individuals and businesses are Will Feinberg take over the BP claims and presumed dead oil rig workers sad- unclear where to turn for legal relief. process? What types of claims will he dened us. And images of fire, thick black Scores of class-action lawsuits have been pay and what criteria will he use? What billowing smoke and a sinking rig cap- filed on behalf of various interested par- documentation will be required? This last tured our attention. But those in charge ties, including commercial fishermen, question is particularly important to the assured us that no oil was leaking, and hotel owners, charter boat captains and tourist-related businesses along the Gulf, we went on about our lives. Not until marinas. BP set up and administered a many of which are cash-, not record-, days and weeks later did the truth begin claims process, as required by the federal driven. While claims have been paid to seeping out. We now know that hundreds Oil Pollution Act, paying millions of dol- many for lost past wages and income of millions of gallons of oil have been lars to claimants. Later, the Obama (there are issues as to amount), for how released into the Gulf, easily eclipsing Administration forced BP to cough up $20 long will these payments continue? Will the 1989 Exxon Valdez spill in Alaska. billion to fund an “independent” claims there be a “final” claim submittal The on-the-ground response to the spill process administrated by former federal process? Will acceptance of the offered by the responsible parties, chief among pay czar and 9/11 fund administrator Ken amount preclude the claimant from later them BP, was chaotic at best. The pro- Feinberg. The federal government and pursuing judicial relief? posed “fixes” to stop the leaking oil Gulf Coast states are conducting their own And those are some of the easier ques- proved unsuccessful and sometimes com- investigations into the incident and will tions. What about damages for lost rental ical–like the “top kill” that involved pursue their own legal claims, which income? Payments have reportedly been shooting golf balls into the well. As we could include criminal charges. made where claimants can show reserva- write this article, the leaking well still With all of these moving parts, it is tions and cancellations due to the spill. spews oil into the Gulf–closing fisheries, difficult to predict how this disaster will But what about all those reservations that killing marine life and destroying the play out from a legal perspective. were never made as potential tourists

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watched images of oil-soaked pelicans “But that is complex web of federal and state statuto- and oil-soiled beaches and decided this not all. Oh, no. ry and common law, all in the context of was the year for Six Flags, a Braves That is not all,” to what many have already called the great- game and the Coca-Cola museum? What quote Dr. Suess’s Cat in the est environmental disaster in the history about all the Gulf Coast businesses Hat. The overarching question is of the United States. (restaurants, theme parks, fishing stores, where and who will decide all these charter boat captains, etc.) whose busi- questions, issues and disputes. Will it be Federal Law nesses have been damaged or destroyed? BP through its claims process, or the The touchstone and starting point for Are they going to be able to collect Coast Guard as administrator of the Oil an analysis of the legal liabilities and future lost profits? That brings us to the Spill Liability Trust Fund? Could it be responsibilities associated with the Gulf thousands of property owners up and Obama’s “independent” pay czar Ken Coast oil spill is the federal Oil Pollution down the Gulf Coast and along its bays Feinberg? Our bet is that for many, the Act of 1990 (“OPA 90”), 33 U.S.C. §§ and estuaries. These individuals and ultimate answer will be none of the above. 2701-2762. OPA 90 was passed on the businesses face their own unique legal While some claims will be submitted to heels of the Exxon Valdez disaster in and economic issues. While many of and paid by BP and Feinberg, many more 1989. It sought to prevent future spills these owners rent their property for prof- will be resolved by and through the judi- and mitigate the damages they caused by it, others do not. But all of them have cial system, at least in the end. While the mandating that oil companies develop one thing in common–they have lost the process will be suitable for handling and maintain oil spill prevention plans use and enjoyment of their property for claims for cleanup costs, lost past wages and clean-up technology and equipment. at least one season and have seen the and rents, and some well-documented It also established a fund paid for by oil value of their rental, retirement, invest- business interruption losses, it will not companies that could help pay for the ment and vacation properties decline pre- provide a meaningful avenue for full clean-up of future spills and pay damage cipitously. In fact, some Florida tax offi- recovery to all those who have seen and claims. In addition, OPA 1990 also creat- cials have already suggested assessing will continue to see their property gener- ed a strict liability cause of action on property owners based on new lower ate less in income and decline in value. behalf of public and private parties dam- property values caused by the diminution One thing is for certain–lawyers and aged from discharges of oil, including in value from the spill. judges will be wrestling for years with a petroleum. Under OPA 90, designated

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“responsible parties” are liable for dam- regulations for filing, processing, settling ages caused by an oil spill and the clean- and adjudicating claims on the fund. See 33 up of it. With respect to a release or spill C.F.R. Part 136. Except under limited cir- from an offshore facility (other than a cumstances, all claims for damages must pipeline or deepwater port), the responsi- first be presented to the responsible party ble party is the lessee or permittee of the before filing a claim against the fund. See area in which the facility is located or the 33 U.S.C. § 2713(a). holder of a right of use and easement There has been a fair amount of con- granted under applicable state law or the flicting advice and information about Outer Continental Shelf Lands Act. See …individuals and whether a claimant should immediately 33 U.S.C. § 2701(32). make a claim with BP (or, now, the “inde- With respect to the Gulf Coast oil spill, businesses with losses pendent” administrator), or wait until the the U.S. Coast Guard has officially des- full extent of the damage is known. OPA ignated BP Exploration & Production or damages that seek 90 provides for partial payments by a Inc. (lessee of the well) and Transocean responsible party for interim, short-term Holding Inc. (owner of the rig) as interim payments will damages representing less than the full responsible parties under OPA 90. As a amount of damages and states that such result of this designation, BP was not be precluded from interim payments “shall not foreclose a required to establish and administer a claimant’s right to recovery of all dam- claims process for impacted individuals seeking additional ages to which the claimant otherwise is and businesses. Importantly, before a entitled under this Act or under any other claimant can sue in court for damages compensation if their law.” 33 U.S.C. § 2716(b)(2). Thus, indi- under OPA 90, she must first file a claim viduals and businesses with losses or with the responsible party. If the claim is losses or damages damages that seek interim payments will denied or not settled by the responsible not be precluded from seeking additional party within 90 days, then a claim can be continue or worsen. compensation if their losses or damages filed in court or made against the Oil continue or worsen. Spill Liability Trust Fund (“the Fund”). In addition, the savings clauses of OPA See 33 U.S.C. § 2713(c). 90 allow states to enact laws establishing A broad range of costs and damages is liability for oil spills in excess of OPA 90’s recoverable under OPA 90. Anyone who facilities for “each incident”–importantly, limits of liability. Id. § 2718(a), (c); U.S. v. helped clean up the spill (including states, the cap does not apply if the incident was Locke, 529 U.S. 89, 105 (2000); Bouchard local governments and Indian tribes) can caused by gross negligence, willful mis- Transp. Co., Inc. v. Updegraff, 147 F.3d recover their costs to prevent, minimize, conduct or a violation of an applicable 1344, 1347 (11th Cir. 1998). The State of mitigate or clean up the spill–these are federal safety, construction or operating Florida, for example, has enacted such a called “removal costs.” 33 U.S.C. § regulation. 33 U.S.C. § 2704(c)(1). The law. See Fla. Stat. Ann. §§ 376.011 et seq. 2702(a). OPA 90 also grants the United available evidence to date strongly sug- In addition to OPA 90, there is a body States, individual states, Indian tribes and gests that, at a minimum, gross negligence of federal common law that may prove foreign trustees the right to recover dam- was involved in the events that led to the relevant to the Gulf Coast oil spill. After ages for injury to or destruction of natural oil spill and perhaps even in the subse- the Exxon Valdez spill in 1989, many resources, including the costs of assessing quent attempts to stop the spill. In fact, affected individuals relied on federal mar- the damages–called “natural resource dam- Anadarko Petroleum Corporation (part itime law as the basis for their claims. ages.” Id. § 2702(b)(2). The owner or les- owner of the leaking well) issued a public (OPA 90 did not exist at the time.) see of real or personal property can recov- statement on June 18, in which its chair Federal maritime tort law allows for the er damages for injury to their property or and CEO was quoted as saying that “[t]he recovery of punitive damages on top of economic losses from the destruction or mounting evidence clearly demonstrates compensatory damages, including dam- injury of such property. Id. Any person can that this tragedy was preventable and the ages for economic loss. See Exxon recover damages for the loss of profits or direct result of BP’s reckless decisions Shipping Co. v. Baker, 128 S. Ct. 2605, earning capacity due to the injury or and actions.” Thus, the “cap” on damages 2611 (2008). The amount of such puni- destruction of real or personal property or that many were initially concerned about tive damages that could be awarded under natural resources (even if they are not the will likely not be an issue. federal maritime law was a hotly contest- owner of the property or resource). States OPA 90 also establishes the Oil Spill ed issue that came to a head in the Exxon and their political subdivisions can recover Liability Trust Fund (“the Fund”). See 26 Valdez cases. In these cases, the lower lost revenues such as taxes, royalties, U.S.C. § 9509. The fund is a back-up only court certified a mandatory class of plain- rents, fees, and costs for providing and not a primary source of recovery. In tiffs seeking punitive damages, and, at the increased or additional public services dur- other words, the statute is structured so that close of evidence, charged the jury to ing or after removal activities. Id. the responsible parties pay if at all possible, consider the reprehensibility of the defen- Although OPA 90 provides liability not the fund. The U.S. Coast Guard dants’ conduct, its financial condition, the caps for responsible parties–including a administers OPA 90, and its National magnitude of the harm and any mitigating $75,000,000 cap on damages for offshore Pollution Funds Center has issued detailed facts, emphasizing that the purpose of

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punitive damages is to punish and deter 2627. The Court held that punitive dam- no “bright-line ratio which a punitive the defendants. Id. at 2613-2614. The jury ages in maritime tort cases were not war- damages award cannot exceed” but that awarded $5 billion in punitive damages ranted in amounts greater than the amount “single-digit multipliers [i.e. 9:1] are more against Exxon. The case then bounced of the compensatory damages award. Id. likely to comport with due process. . . back and forth between the district court at 2633. This case is important to consider than awards with ratios in ranges of 500 and the Ninth Circuit over the amount of when deciding on what claims to file, as to 1. . . or, in this case, of 145 to 1.”). the punitive award, which was ultimately the difference in punitive damages award- The Limitation of Liability Act of 1851, remitted to $2.5 billion. The U.S. ed under federal maritime tort law versus 46 U.S.C. App. §§ 181-196, is another Supreme Court granted certiorari to con- state common law tort law could be sig- federal statute involved in the Gulf Coast sider whether $2.5 billion in punitive nificant. Although state law on punitive oil spill litigation. This statute is tradition- damages was excessive as a matter of damages varies, most states allow awards ally used by vessel owners to limit their maritime common law. greater than a strict 1:1 ratio of punitive to damages. Under the terms of the The Court ruled, in a five-to-three deci- compensatory damages, and federal due Limitation of Liability Act, a shipowner sion, that the punitive damages were process certainly does not mandate a 1:1 can limit its liability for a casualty to the excessive and should be reduced to $500 ratio. See State Farm Mutual Auto. Ins. post-accident value of the vessel and its million. The Court emphasized its concern Co. v. Campbell, 538 U.S. 408, 422, 425 cargo, provided that the accident did not with fairness, consistency and due process (2003) (stating that “each State alone can result from the owner’s negligence. and the need to protect against awards that determine what measure of punishment, if However, since passage of OPA 90, courts are unpredictable and unnecessary, either any, to impose on a defendant who acts have consistently held that the Limitation for deterrence or retribution. Id. at 2625- within its jurisdiction,” and that there is of Liability Act does not apply to claims

The Alabama State Bar’s Pro Hac Vice (PHV) filing process The PHV has gone from paper to online. Instead of sending a check and hard copy of the Verified Application for Admission to Practice Application Pro Hac Vice to the ASB, an out-of-state attorney can now request that his or her local counsel file their PHV application through AlaFile, including electronic payment of the $300 appli- Process Is cation fee. Once local counsel has filed this motion, it will go electronically Paperless to the PHV clerk’s office at the Alabama State Bar for review. (and Painless!) • If all of the information on the application is correct, the motion will be docketed and sent electronically to the judge assigned to the case for ruling.

• If the information in the application is incorrect or incomplete, a deficiency notice will be e-mailed to the filer (local counsel).

A corrected application may be resubmitted by local counsel via AlaFile. The PHV clerk will then review the corrected application and, once accepted, the motion will be docketed and sent electronically to the judge assigned to the case for ruling. Please refer to the “Step-by-Step Process” to file the PHV application in the correct location in the Alafile system. (It should no longer be filed under ‘Motions Not Requiring Fee’). Contact IT Support at 1-866-954-9411, option 1 and then option 4, or [email protected] with questions or comments.

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for damages from oil spills under OPA 90. the oil are the result of BP’s abnormally See Bouchard Transp. Co. v. Updegraff, dangerous and/or ultrahazardous activities, 147 F.3d 1344, 1348 (11th Cir. 1998); In strict liability claims may also be asserted. re Metlife Capital Corp., 132 F.3d 818, Perhaps most importantly for claimants, 819 (1st Cir. 1997); In re Complaint of the savings provision in OPA 90 means Jahre Spray, 1996 U.S. Dist. LEXIS that punitive damages can be recovered 11594, *16 (D.N.J. 1996). under state common law causes of action This clear precedent, however, has not that permit such awards. stopped oil-spill defendants from invoking In addition to state common law claims, the statute. In response to lawsuits over the Perhaps most impor- some state statutes may provide for liabili- Gulf Coast oil spill, Transocean (owner of ty against BP and others. For example, the the rig) filed a complaint and petition seek- tantly for claimants, Alabama Water Pollution Control Act ing to limit its liability to $27 million in the (“AWPCA”), Ala. Code §§ 22-22-1 to -14, U.S. District Court for the Southern the savings provision requires every person discharging any new District of Texas. The same day, the Texas or increased pollution into any waters of court issued an order enjoining any and all in OPA 90 means that the state to obtain a permit from the state other suits relating to the oil spill until a prior to discharging such pollution. Ala. hearing could be held on the issue. Given punitive damages can Code § 22-22-9(i)(3). Section 22-22-9(m) the existing OPA 90 precedent, many of the AWPCA provides that the attorney viewed the Transocean filing as simply a be recovered under general may bring a civil action for dam- delay tactic or venue shopping. ages for pollution of the waters of the Accordingly, many claimants challenged state common law state, including reasonable costs to pre- this filing and the court’s order, and on vent, minimize or clean up the damage. May 25, 2010, Transocean “clarified” its causes of action that Compensatory damages are available for position regarding its filing under the negligent acts or omissions under this sec- Limitation of Liability Act, stating that it permit such awards. tion. Id. Both punitive and compensatory never intended to limit claims under the Oil damages are recoverable when the pollu- Pollution Act. On June 1, 2010, the United tion resulted from willful or wanton con- States Department of Justice requested that duct on the part of the defendant. Id. In the court lift or modify its injunction to addition, Section 22-22-9(n) provides that clarify that, with respect to the Deepwater with respect to the Gulf Coast oil spill. any person who causes the death of fish or Horizon incident, the Limitation of The savings provision means that state other wildlife is liable for other appropriate Liability Act does not apply to: (1) claims common law claims may also be brought civil penalties and additional amounts made under OPA 90; (2) claims made by in response to the spill. Common law equal to the sum of the cost to restock federal, state or municipal governments; or claims that have already been asserted in such waters or replenish wildlife, includ- (3) any claims brought pursuant to the Park individual and class action complaints ing punitive damages. System Resource Protection Act, the against BP and others include claims for State statutes also will influence how National Marine Sanctuaries Act, the Clean negligence, gross negligence and/or will- common law claims are decided. For Water Act, the Rivers and Harbors Act, and ful, wanton and careless disregard, both in example, the AWPCA provides that “[a]ny the Comprehensive Environmental the operation of the Deepwater Horizon and all pollution” is a public nuisance. Id. § Response, Compensation, and Liability that resulted in the oil spill and the later 22-22-9(i)(4). And Alabama and other Gulf Act. On June 13, the court issued a second failure to timely control the oil. Another Coast states have statutes that confer ripari- amended order, clarifying that such claims available common law claim is nuisance, an ownership of certain coastal resources are not precluded by the Limitation of given that the oil and other pollutants (for on private landowners. For example, the Liability Act. example, the chemical dispersants used by Alabama Code includes an oyster statute BP) have interfered with the use and that gives shore owners riparian rights over State Laws enjoyment of properties and businesses, oyster cultures that extend out to 600 yards While OPA 90 may be the starting and have diminished the value of proper- from the shoreline. Id. § 9-12-22. This point for oil spill liability, it is by no ties and businesses. Ala. Code § 6-5-120; means that private owners of coastal lands means the last or final word. OPA 90 con- Blue Water Yacht Sales and Serv., Inc. v. can bring common law claims, like tres- tains an important savings clause that Transocean Holding Inc. (S.D. Ala., Case pass, nuisance and negligence, for damage provides: “Nothing in this Act or the Act No. 1:2010-cv-00224). In addition, tres- to cultured oyster beds adjacent to their of March 3, 1851 [i.e., the Limitation of pass claims have been asserted against BP property. Mississippi has a similar statute, Liability Act] shall . . . affect, or be con- and others for allowing oil to escape their see Miss. Code Ann. § 45-15-9, while other strued or interpreted to affect or modify facility and contaminate real and personal Gulf Coast states grant oyster bed leases in any way the obligations or liabilities of property along the coast. Ala. Code § 6-5- and allow leaseholders to recover damages any person under . . . State law, including 210 (real property); § 6-5-262 (personal to these state-created property interests. See common law.” 33 U.S.C. § 2718(a)(2). property); Sarah H. Moore, et al. v. BP La. Rev. Stat. Ann. § 56:423; Fla. Stat. Ann. This single provision tucked into OPA 90 PLC, et al. (S.D. Ala, Case No. 1:2010-cv- § 379.232; Tex. Parks and Wildlife Code drastically alters the litigation equation 00293). Because any damages caused by Ann. § 1.011.

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Class Actions cases are consolidated and an MDL judge Given the broad extent of the damages is assigned, new cases would be trans- from the spill, class action lawsuits were ferred as “tag-along” actions to the MDL. inevitable. Over 200 class action lawsuits The scope of the consolidated proceedings already have been filed in response to the would likely include initial motions, dis- oil spill. Most of the complaints are filed covery, class certifications and perhaps against BP, Transocean, Halliburton (the some bell-weather trials. company that performed the cementing operations to cap the well), Cameron Conclusion International (the company that supplied In early May, BP filed It was a sad day when the Deepwater the blowout preventer valves that failed to Horizon blowout preventer failed, causing operate and prevent the spill), and various a motion with the U.S. death, contamination of the Gulf and eco- other parties, including co-owners of the nomic destruction of so many coastal leaking well (for example, Anadarko Judicial Panel on communities. While BP’s multi-million Petroleum Corporation). The jurisdictional dollar ad campaign assures us that they basis for most of the suits is 28 U.S.C. § Multidistrict Litigation “will make this right,” many wonder 1332(d)(2) (part of the Class Action what BP means when it says all “legiti- Fairness Act), because the matter in contro- (JPML) to consolidate mate” claims will be paid and what level versy exceeds $5,000,000 and the plaintiffs of proof it will require for quick payment. are citizens of states that are different from all the oil spill cases. Given the financial stakes, lawyers and the state where at least one of the defen- judges, not “independent” fund adminis- dants is incorporated or does business. trators, will ultimately decide just where The majority of the class actions are to draw the lines between “legitimate” currently pending in either the U.S. and “illegitimate” claims. And it will not District Court for the Southern District of spill cases. BP has asked the JPML to be a quick process. The Exxon Valdez Alabama, Eastern District of Louisiana, transfer all of the pending cases to the U.S. spill took a decade to resolve, and the lin- Northern District of Florida, Southern District Court for the Southern District of gering legal questions were ultimately District of Mississippi, or Southern District Texas, Houston Division. Plaintiffs in the answered by the U.S. Supreme Court. of Texas. The complaints assert common various class actions have opposed this Given the massive scope of the Gulf law claims, OPA 90 claims, state statutory venue (in part because that district is not in Coast oil spill and the complex legal claims or a combination of these three. the impact zone of the spill and is per- issues it raises, this environmental disas- The suits seek certification of a variety of ceived to be “home base” for the oil com- ter promises to keep lawyers and judges classes, including commercial fishermen, panies). Instead, various plaintiffs’ groups busy for a long time to come. LML seafood harvesters, charter boat operators, are advocating venues in the affected Gulf real estate owners, condominium owners Coast states, including the Eastern District who rent their properties, business owners of Louisiana and the Southern District of on the Gulf coast, restaurant owners, and Alabama. The JPML held a hearing on Stephen Gidiere, Mike Freeman and Mary oyster bed owners, among others. the matter July 29 in Boise. See In re: Samuels practice environmental litigation at In early May, BP filed a motion with the Oil Spill by the Oil Rig “Deepwater Balch & Bingham LLP in Birmingham and U.S. Judicial Panel on Multidistrict Horizon” in the Gulf of Mexico on April are members of the firm’s Gulf Coast Oil Spill Litigation (JPML) to consolidate all the oil 20, 2010, MDL-2179. Assuming the Legal Team (www.balch.com/oilspill).

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Nowyou canrpay your 2 1010.. 11 A'S,B occupationallicense fee and special membershipdues cmline.

No checksto write;

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lbe 2009·10 occupationallice,nses andl ~al membershipsexpir on September30, 2010. f>aymentof licensefees and membership dues for 1010· 11 is cl'uein the AlabamaState Bar office by1 0ctober31, 201D and are considereddelinquent aher that date. Oc,cupationallicellSes purcha5edafter October 31st will have a 15 percentlate fee penaltyadded to tile Nelensefee.

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When Doing Business Internationally Becomes a Crime: Assisting Clients in Understanding and Complying with the Foreign Corrupt Practices Act By William C. Athanas

s global markets expand and economic turmoil Originally enacted in 1977 to combat corruption in the wake increases, American companies of all sizes and types of Watergate, the FCPA received relatively little attention dur- A have initiated or intensified efforts to sell their prod- ing much of its first three decades of existence. To the extent ucts and services in foreign countries, particularly in emerging the statute was enforced, large corporations were the most fre- markets such as Brazil, Russia, India, China, and Africa. Those quent target, with civil and criminal actions typically resulting doing business overseas face a host of operational, cultural and when those entities discovered and self reported violations to legal challenges. Compliance with the Foreign Corrupt the government. Everything changed in 2005, when the Practices Act (FCPA) had rapidly ascended toward the top of Department of Justice dramatically increased its commitment to that list as a result of the recent proliferation of criminal prose- investigate and prosecute foreign bribery. Those efforts trig- cutions and civil enforcement actions under the statute. gered a virtual explosion of activity under the statute, produc- The FCPA prohibits improper payments to foreign officials for ing more criminal enforcement actions in the last four years the purpose of obtaining or retaining business and creates a than in the previous 29 of the statute’s existence, with the rate thicket of legal issues impacting virtually every aspect of interna- of increase likely to continue to grow. tional commerce. From obtaining permits and licenses necessary This striking surge in the volume of FCPA enforcement actions to do business to securing contracts from foreign governments to coincides not just with a substantial increase in the volume of hiring intermediaries to participating in joint ventures overseas, investigative and prosecutorial resources dedicated to the statute, any interaction with those vested with official discretion and but also with a dramatic overhaul in the investigative tools authority creates an opportunity for payments which may be employed to build cases. As the world continues to get smaller intended to or interpreted as attempts to improperly influence and American businesses continue their efforts to expand into official action. Failing to understand or comply with the FCPA’s countries where corruption runs rampant and bribes to govern- framework carries potentially severe civil and criminal conse- ment officials represent the status quo, these efforts will only quences, including fines, disgorgement of profits, debarment continue to develop, causing the FCPA’s impact to swell in from eligibility to receive government contracts, prohibition on breadth and depth. Those unprepared to adhere to the statute’s receiving or revocation of export licenses, and, perhaps most sig- mandates–or, even worse, those unaware of their existence–face nificantly, substantial terms of imprisonment for violators. an environment of elevated risks and dangerous consequences.

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Elements of the Statute The Anti-Bribery Provisions

The FCPA contains two main components, commonly While some dispute exists regarding the precise elements of referred to as the “anti-bribery” and “accounting” provisions. an anti-bribery violation, most courts and commentators agree The anti-bribery provisions speak in prohibitive terms, forbid- that the government must show the corrupt offer, payment or ding anyone–including American companies of all sizes, U.S. promise to pay anything of value to a foreign official for the citizens and permanent residents–from corruptly offering, purposes of securing any improper advantage, influencing any promising or giving anything of value, act or decision of that foreign official in directly or indirectly, to a foreign official his official capacity, or inducing the for- for the purpose of obtaining or retaining The FCPA eign official to do or omit any act in viola- business anywhere in the world. 15 U.S.C. tion of his lawful duty. Which each of §§ 78dd-1, dd-2 and dd-3. In contrast, the contains two these elements raises particularized con- accounting provisions create affirmative cerns, the intent requirement constitutes obligations, requiring those companies main components, the most notable component of the anti- registered with the Securities and bribery provisions, as the statute contains Exchange Commission to maintain commonly dense language regarding the various alter- “books, records and accounts which, in native methods of proving a violation. All reasonable detail, accurately and fairly referred to as violations must involve corrupt intent, a reflect the transactions . . . of the issuer,” term the FCPA’s legislative history defined and to devise and maintain internal con- the “anti-bribery” to “connote an evil motive or purpose; an trols designed to provide reasonable assur- intent to wrongfully induce the recipient.” ances that financial transactions are exe- and “accounting” S. Rep. No. 95-114 at 10 (1977). Intent is cuted in accordance with generally accept- typically proven circumstantially, and may ed accounting standards. 15 U.S.C. § provisions. be demonstrated by the amount of a pay- 78m(b)(2). Recognizing that corrupt activ- ment, its temporal relationship to a partic- ity flourishes when concealed, the ular decision by a foreign official or its accounting provisions seek to negatively lack of transparency. For example, a reinforce compliance with the anti-bribery $50,000 payment by an American compa- prohibitions by imposing separate and ny to a foreign official characterized as an additional penalties where any registered “advance consulting fee” made just days company pays a bribe and fails to declare before that official approves the compa- and disclose it as such in the company’s ny’s bid for a $10 million contract with a books, records and accounts. state-run entity creates a compelling cir- While the process of understanding of cumstantial evidence of an effort to cor- the FCPA starts with its language, as with ruptly influence the recipient in the per- any statute, achieving a full grasp of the formance of his official duties. provision involves review of interpretive In those situations where enforcement is sources. Normally, reported decisions from premised on payments through intermedi- courts serve to offer practical guidance on statutory require- aries, the FCPA allows for conviction where an individual or ments, and facilitate compliance. Because prosecutors invoked company corruptly transfers money or a thing of value to an the FCPA against individuals on a limited basis for much of its intermediary “while knowing that all or a portion of [that existence, trials were few and far between, resulting in a strik- money or thing of value]” will then be offered, given or prom- ing scarcity of judicial opinions illuminating the contours of the ised to a foreign official in order to obtain or retain business. 15 statute’s sometimes murky mandates. U.S.C. § 78dd-1(a)(3). Under the statute, a person’s state of In place of the reservoir of reported decisions which typically mind is “knowing” if the person has actual awareness or even illuminate the contours of a criminal statute, those struggling to just a “firm belief” that the result is “substantially certain” to understand and comply with the FCPA have been left to rely on occur. The statute also provides that when proof of a particular two sources of information: opinions issued by the Department circumstance is required, that knowledge may be deemed estab- of Justice in response to specific inquiries, 15 U.S.C. § 78dd- lished “if a person is aware of a high probability of the exis- 1(e), and the terms of negotiated settlement agreements execut- tence of such circumstance, unless the person actually believes ed between corporate violators and the government. Because that such circumstance does not exist.” 15 U.S.C. § 78dd- criminal indictment, must less conviction, often represents the 1(f)(2). death knell for corporations, the government has long enjoyed a In theory, the relatively minimal showing necessary to estab- substantial advantage in negotiating leverage which has result- lish an FCPA violation in this context seeks to prevent individu- ed in settlement terms reflecting a liberal interpretation of the als and companies from circumventing the statute’s prohibitions FCPA’s elements and a broad view of its scope. While this by simply funneling money to third parties operating overseas in means that those settlement agreements do not necessarily rep- an effort to outsource the actual payment of bribes. In practice, resent the definitive standard for measuring conduct, they often this language transforms the process of divining the requisite represent the best information currently available. level of intent into an evaluation of a calculus made up of factors

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including various “red flags” which suggest that a person pur- Although not specifically referenced in the original or posely avoided learning certain facts in order to escape liability. amended versions of the statute, extortion may also constitute a These red flags are numerous, and include such circumstances as viable defense under the FCPA. But “extortion” can cover a operating in countries where there is widespread corruption wide range of activity, from demands for payment before the (according to rankings complied annually by Transparency lights are turned on to threats of physical violence against International, an international non-governmental organization employees. While the dearth of judicial guidance on this topic aimed at fighting global corruption), contracting with third par- complicates matters, the legislative history of the statute recog- ties at the insistence of government customers, making payments nizes that payments in the latter category are clearly exempted which are secretive or unusual to third parties (including pay- from the statute because “while the FCPA would apply to a sit- ments in cash), and dealing with parties who have a history of uation in which a ‘payment [is] demanded on the part of a gov- improper payment practices. Designed to prevent individuals and ernment official as a price for gaining entry into a market or to companies from simply “putting their head in the sand,” the obtain a contract,’ it would not apply to one in which payment FCPA’s reduced and amorphous intent requirement serves to cre- is made to an official ‘to keep an oil rig from being dynamited,’ ate a separate due diligence obligation to investigate intermedi- an example of ‘true extortion.’” United States v. Kozeny, 582 aries and also to monitor their activities on an ongoing basis. F.Supp.2d 535, 539 (S.D.N.Y. 2008) (quoting S. Rep. 114, 95th Cong., 1st Sess. (1977) at 11). Thus, it would seem that “economic extortion” is different not only in degree, but in kind, Defenses to the Anti-Bribery from “true extortion” and therefore is unlikely to resonate as a defense to bribery allegations where the facilitation payment Provisions defense does not apply. In 1988, 11 years after enactment of the FCPA, Congress amended the anti-bribery provisions to recognize an exception and two affirmative defenses. While these modifications carve The Accounting Provisions out safe harbors from liability, their narrow scope and infre- In contrast to the wide range of companies and individuals quent application effectively serve to reinforce the breadth of subject to the anti-bribery provisions, the accounting provisions the statute. apply only to “issuers”–those companies who register securities The exception authorizes the payment of “facilitating” or under § 12 of the Securities and Exchange Act of 1934 or are “grease” payments to foreign officials made to secure or speed required to file reports under § 15(d) of that Act. This group the performance of routine, nondiscretionary government func- consists primarily of those companies that list shares on U.S. tions. 15 U.S.C. § 78dd-1(f). The statute defines these functions stock exchanges. As noted above, the accounting provisions to include “processing governmental papers, mail pickup and delivery, providing phone service, and protecting perishable products.” Id. True facilitation payments not only must relate to ministerial acts, they must also be small in amount–the Department of Justice has only authorized payments of less than $1,000 in previously issued opinions. The FCPA recognizes an affirmative defense to liability where “the payment, gift, offer, or promise of anything of value that was made was lawful under the written laws and regulations of the [foreign official’s] country.” 15 U.S.C. § 78dd- 1(c)(1). As a practical matter, this defense offers little shelter. “Lawful under written law” is fundamentally different from “consistent with local custom and practice,” and no country in the world–even those with the most pervasive cultures of corruption–authorizes bribery under its written laws. It is also an affirmative defense that a payment to a foreign official “was a reasonable and bona fide expenditure, such as travel or lodging expenses . . . and was directly related to . . . the promotion, demonstration, or explanation of products or services. . . ” 15 U.S.C. § 78dd-1(c)(2). The government strictly construes this defense, wary that companies will utilize it as a means of concealing excessive payments under the guise of legitimate promotional activities. Enforcement actions have rejected efforts to include the payment of extravagant expendi- tures such as first-class travel, lodging at exclusive hotels and payment for families of government officials under this defense. Because hard and fast guidelines are difficult to articulate in this context, common-sense standards remain the guiding principles for evaluating the legitimacy of payments of this type.

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mandate that issuers maintain books, • is overseen by a designated individual records and accounts which accurately who is accessible to employees and has record transactions and the disposition of clear channels of communication to sen- assets. This component of the statute aims ior management; to prevent companies from disguising • encourages and provides avenues for bribe payments in their books as “commis- reporting of violations; sions,” “rebates,” “consulting fees,” “local • identifies and enforces sanctions for taxes,” or some other apparently innocu- noncompliance; ous label. The accounting provisions also direct issuers to implement and maintain a • utilizes audits and other techniques to system of internal controls calculated to monitor compliance, identify problem provide reasonable assurances that the areas and assist in the reduction of iden- issuer’s transactions are executed in accor- This component of tified problems; and dance with management’s general or spe- the statute aims to • provides for the non-employment or cific authorization and recorded in a man- retention of excluded individuals who ner necessary to allow for preparation of prevent companies have violated corporate or compliance financial statements according to generally policies, applicable statutes and accepted standards. Notably, the account- from disguising regulations. ing provisions’ requirements are not limit- External threats arise when outside indi- ed to those transactions or assets which bribe payments in viduals or entities–intermediaries, consult- relate to the payment of bribes–any inac- ants or agents (including distributors, cus- curate or misleading entry or failure to ful- their books as “com- toms brokers and freight forwarders)–are fill the obligations suffices to impose lia- missions,” “rebates,” retained to perform functions on behalf of bility. the company, or when the company partic- “consulting fees,” ipates in joint ventures or merges with or Strategies for acquires other entities. Because the FCPA “local taxes,” or recognizes a violation where a composite Compliance of factors demonstrates conscious avoid- under some other ance of certain facts, doing business with A robust compliance program represents unknown individuals or entities heightens the most effective means to mitigate the apparently the risk under the statute. In this context, risks the FCPA presents. A properly individuals and companies need to under- designed, implemented and maintained innocuous label. take meaningful efforts to learn whether program must contain elements which red flags exist–not just in their own organ- manage internal and external threats, as ization but also as to those they do business with–and recognize assessed by the company in the most searching and candid that they will be held responsible for the failure to do so. As a fashion possible. Internal threats involve actions by employ- practical matter, this means drafting joint venture and agency ees–whether undertaken with or without improper intent–which agreements which insist on representations and warranties expose companies to liability under the statute. pledging compliance with the FCPA (including those which To implement this element of the program, companies should require assurances that the individual or company has and will commit to construct a program which: continue to comply with the statute and provides the right to • provides education and training about the FCPA, including inspect the party’s books and records), securing remedies for development and distribution of written standards of conduct; violations of those warranties (including “claw-back” provisions which allow for recovery of amounts paid or render the agreement void ab initio), and committing to conduct thorough due diligence when acquiring or joining with another entity. On this issue, it is vital to note that compliance programs are not “one size fits all” and cannot remain static after implementation. Nor may companies simply employ rigid and shallow due diligence procedures when dealing with outside entities in order to “paper the file.” The scope of the risk defines the necessary scope of the compliance plan or the due diligence obligation. A business with $10 million a year in gross revenue is not expected to create and maintain a compliance program on the level of Exxon/Mobil or Boeing, nor is a company which exports books to Switzerland expected to build and operate the same program as a company which runs an oil refinery in Nigeria. But while the scope of the obligation for smaller companies operating in

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traditionally recognized “safe” industries or countries may be over 20 years for Gerald and Patricia Green, two film producers reduced, it is not eliminated. The government expects all indi- convicted of paying $1.8 million in bribes to a Thai official in viduals and companies doing business overseas to undertake exchange for $13.5 million in contracts to produce the Bangkok genuine efforts to comply with the FCPA–simply going through Film Festival. the motions will not prevent violations or insulate the company The scope of the government’s focus will continue to expand or individual from government sanctions as well. While the oil and gas, defense and when they occur. telecommunications industries have long …the government been breeding grounds for corrupt activity, The Future of FCPA the government has announced a plan to declared its inten- widen the scope of FCPA enforcement to Enforcement target additional sectors. In late 2009, the tion to focus on the government declared its intention to focus Practice under the FCPA promises to on the pharmaceutical industry, especially continue to present dynamic challenges. In pharmaceutical in those countries with state-run health sys- late 2008, the DOJ’s chief of FCPA tems (where every employee would theoret- enforcement announced that “the number industry, especially ically meet the definition of “foreign offi- of individual prosecutions [under the cial”). More industries are likely to be tar- FCPA] has risen–and that’s not an accident in those countries geted, and more cases are likely to be made . . . It is the [DOJ’s] view that to have a across the spectrum of industries of all sizes credible deterrent effect, people have to go with state-run engaged in international commerce. to jail.” That warning coincided with the DOJ, SEC and FBI dramatically ramping health systems… up the resources allocated for FCPA Conclusion enforcement, increasing the number of In theory, the FCPA serves a clear pur- attorneys and agents assigned to investi- pose: preventing corrupt payments to for- gate and prosecute cases. eign officials. In practice, the statute’s These commitments rapidly produced broad reach and sometimes murky require- real results. Not only has the government ments can challenge even the most earnest increased the number of individuals and individual or company doing business companies charged, it has also consistently overseas. One byproduct of the govern- sought substantial penalties–in the form of ment’s increased focus on criminal prose- lengthy prison sentences and hefty cutions in general and individuals in par- fines–for those who violate the FCPA. In ticular will be a dramatic increase in the April 2009, the government charged eight number of trials and appeals. In time, the employees of Control Components, Inc., a rulings which arise from these cases California-based corporation which should serve to further clarify the FCPA’s designed and produced valves for oil and obligations, elements and defenses, and gas production, with authorizing or paying over $5 million in facilitate the understanding and application of the statute’s bribes in 36 counties over a 10-year period. This was the terms. In the meantime, however, individuals and companies largest number of individuals charged in one FCPA case until engaged in international commerce–and the lawyers who January 2010, when the government arrested 22 individuals advise them–will be forced to chart a course of compliance after conducting a massive, Abscam-inspired undercover inves- through treacherous seas. tigation in which federal agents posed as officials from the defense ministry of the African nation of Gabon and pretended to solicit bribes from suppliers of products in the law enforcement and tactical equipment industry. The government has also altered its approach once individuals are indicted and convicted. In April 2010, the government secured a sentence of seven years’ imprisonment for Charles Jumet, a Virginia man who bribed Panamanian officials to secure William C. Athanas is of counsel to Waller Lansden Dortch & Davis maritime contracts on the Panama Canal. That sentence–which is LLP and practices in the firm’s Birmingham office. He has served as a currently the longest ever imposed in an FCPA case–is likely to federal prosecutor in the U.S. Attorney’s Office in the Northern District be dwarfed by subsequent cases as the government continues to of Alabama and the Department of Justice, Criminal Division, Fraud intensify its efforts to prosecute international corruption by pros- Section in Washington. His practice extends to all facets of the Foreign ecuting larger cases and seeking lengthier prison sentences for Corrupt Practices Act, including compliance program counseling, inter- violators. In fact, this year alone, the government sought a sen- nal reviews and responding to government investigations. He also repre- tence of 10 years for Frederic Bourke, an investor convicted of sents individuals and corporations in defense of white-collar criminal paying bribes in furtherance of a failed venture to secure the pri- matters in the areas of bank, healthcare, securities and tax fraud. vatization rights to Azerbaijan’s state-owned oil industry, and

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Alabama’s New Uniform Guardianship and Protective Proceedings Jurisdiction Act: Providing Clear Guidance for the Management and Resolution of Interstate Guardianship and Conservatorship Disputes

By Hugh M. Lee hat happens when a client, Guardianship and Protective Proceedings concerned about the care of Act, Alabama’s courts may establish W his or her incapacitated parent jurisdiction and continue to exercise in a Florida nursing home, checks that jurisdiction so long as the individual over parent out of the nursing home, relocates whom guardianship or conservatorship is the parent to a facility in Dothan, sought is present in the state or, in the Alabama and petitions the Houston case of conservatorships, so long as there County Probate Court for guardianship is property of the protected person’s and conservatorship? How should a court estate in Alabama.1 However, the current respond when family members engage in provisions of the Alabama Code do not an interstate “tug of war” over the care specifically address what happens when of an incapacitated family member and incapacitated persons are relocated from control of their estate? How should an one state to another in an attempt to gain Alabama court treat guardianship and a more favorable forum, to have another conservatorship orders entered by anoth- chance at litigating guardianship and er state? What about the treatment of conservatorship issues, or to gain control guardianship and conservatorship decrees over the protected person’s assets. Nor issued by the courts of foreign countries? does current Alabama law provide spe- These myriad questions and others are cific remedies when a protected person is addressed by the Uniform Guardianship removed from Alabama’s jurisdiction and and Protective Proceedings Jurisdiction proceedings are filed elsewhere. Act (UGPPJA), a new Act recently To address these issues, the Alabama passed by the Alabama Legislature which Law Institute established and convened a establishes clear guidelines for the reso- drafting committee in late 2007 to review lution of interstate jurisdiction disputes. and consider the Uniform Guardianship Such an act is necessary due to the and Protective Proceedings Jurisdiction absence of any provision under current Act. After nearly 24 months of work, the Alabama law to resolve these disputes. proposed UGPPJA was presented to the Under Alabama’s current Uniform Alabama Legislature, sponsored by

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Representative Tammy Irons in the Uniform Child Custody Jurisdiction and Alabama House of Representatives and Enforcement Act (UCCJEA).4 Prior to by senators Arthur Orr and Ted Little in the adoption of the UCCJEA (and its the Alabama Senate. Both houses passed predecessor, the UCCJA), similar juris- House Bill 114. The Alabama Uniform dictional problems frequently occurred in Adult Guardianship and Protective child custody determinations. Parents in Proceedings Jurisdiction Act2 was signed the midst of custody disputes commonly into law by Governor Bob Riley on April relocated to other states in an attempt to 22, 2010, to become effective January 1, find a more favorable forum, to make lit- 2011. The Act sets minimum standards igation of the issues more difficult for the for the acquisition of jurisdiction, contin- opposing party, to discourage visitation uation of jurisdiction and resolution of (and thereby prejudice the other party’s interstate jurisdictional disputes between The Act’s Genesis: case), and to gain a second chance at liti- courts. gating issues which were perhaps lost in This article will explain the Act’s gen- Uniform Child the original jurisdiction. esis, its basic operation and the primary Because the jurisdictional rules in exis- provisions of the Act. As an Act which Custody Jurisdiction tence prior to the UCCJA allowed courts defines the circumstances under which Laws in more than one state to properly exer- an Alabama probate court may take juris- cise jurisdiction, parties were able to diction and which sets the limits of that The Uniform Guardianship and engage in forum shopping for the most jurisdiction, the UGPPJA fundamentally Protective Proceedings Jurisdiction Act favorable jurisdiction. The passage of the changes the process by which jurisdic- was drafted by a committee of the UCCJEA, however, set limits on the tion over guardianship and protective Uniform Laws Commission and present- exercise of jurisdiction and provided proceedings is determined and, therefore, ed for final approval to the 2007 Annual courts with a procedure to encourage and merits close examination by those prac- Meeting of the National Conference of require communication, cooperation and ticing in this area. This article provides a Commissioners on Uniform State Laws resolution of interstate child custody starting point for closer study and exami- (NCCUSL).3 The Uniform Act, upon jurisdiction disputes.5 In light of the suc- nation of the Act. which Alabama’s Act is based, derives its cess of the UCCJEA and the similar guiding operational principles from the issues raised by interstate guardianship

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and conservatorship disputes, it is not to ensure cooperation and communication and allow Alabama courts to reciprocate surprising that the drafters of the between them.10 Article Two contains when foreign jurisdictions request such Uniform Act modeled the first two arti- critical provisions establishing the frame- assistance under the Act.19 cles of the UGPPJA upon the similar work for determining jurisdiction.11 provisions of the UCCJEA.6 Article Three establishes the method by As a result, attorneys practicing in the which guardianship and conservatorship Article Two: family law area will likely be familiar proceedings may be transferred.12 Article with the terminology of the UGPPJA, Four addresses the registration and recog- Jurisdiction which establishes definitions and juris- nition of foreign guardianship and conser- Undoubtedly the most important article dictional prerequisites very similar to the vatorship orders.13 Article Five establishes in the Act is Article Two, which contains UCCJEA. As of the effective date of the the effective date of the act, the existing the specific rules for determining juris- Act, jurisdiction of adult guardianship laws repealed or amended and other pro diction over adult guardianship and con- and conservatorship proceedings filed in forma language common to the passage servatorship proceedings, as well as defi- the Alabama courts shall be determined of new acts.14 nitions specific to that determination. exclusively through the application of the This article attempts to accomplish sev- UGPPJA.7 Although not the only basis eral goals, including ensuring that only for establishing jurisdiction, most inter- Article One: Scope one state has jurisdiction to appoint a state guardianship and conservatorship guardian or conservator (except in emer- jurisdiction disputes will be resolved by and Operation gency situations or where a protected application of the “home state” concept The Act is limited in scope to person owns property in multiple states), so prevalent in the UCCJEA. Under the guardianship and conservatorship pro- that the court exercising jurisdiction is Act, an Alabama court may only exercise ceedings concerning adults only.15 The the most appropriate court and that jurisdiction of an adult guardianship and Act is not intended to address other kinds courts have a procedure to follow when conservatorship case if the state of of “protective” orders nor is it intended no clearly superior jurisdiction presents Alabama is the protected person’s “home to govern proceedings regarding minors, itself. With the passage of this Act, attor- state”–generally, the state where the pro- jurisdiction of which is likely governed neys will rely upon Article Two in every tected person has lived continuously for by the UCCJEA. Though inapplicable to adult guardianship and conservatorship six months prior to the filing of the peti- minors, the Act is intended to apply to case to determine whether jurisdiction is tion.8 If Alabama is not the home state, it international adult guardianship and con- appropriate in Alabama. may only exercise jurisdiction if the servatorship orders, when those orders Article Two of the Act establishes four court determines that the protected per- are entered in a manner essentially con- primary bases for jurisdiction. Under the son has “significant connections” with sistent with Alabama law and in accor- terms of the Act, an Alabama court may the state of Alabama (and no other court dance with basic tenets of human only exercise jurisdiction over an adult is properly exercising jurisdiction) or rights.16 The Act provides clear direction guardianship and conservatorship peti- determines that it must exercise emer- concerning the process to be used to tion under the following circumstances: gency jurisdiction for a short period of resolved interstate jurisdiction disputes. (1) Alabama is the home state of the pro- time for the protection of the protected It allows Alabama courts to communicate tected person; (2) the protected person person.9 This basic jurisdictional frame- with foreign courts for the purpose of has no home state and has significant work and terminology is borrowed resolving interstate jurisdiction dis- connections with Alabama; (3) the directly from the UCCJEA. putes.17 At the court’s discretion, the par- respondent’s home state and other signif- ties may be present to participate in that icant connection states all decline juris- discussion between the courts. However, diction; or (4) the protected person faces Overview of the Act the court is required to create a record of a significant threat to health or safety The Act is broken down into five arti- any substantive conversations and to which justifies the court taking emer- cles, the most important and substantive make that record available to the parties. gency jurisdiction over the matter.20 of which are the first three articles, which If the parties are not privy to the discus- Most petitions for guardianship or con- address the scope and operation of the sion between the courts, each party must servatorship will be brought pursuant to act, the framework for establishing juris- be allowed to present arguments concern- the “home state” jurisdiction of the court, diction and the transfer and recognition of ing jurisdiction.18 The last two sections as defined by Section § 26-2B-201 and foreign guardianship and conservatorship of this article authorize and facilitate the established under Section § 26-2B-203. orders. Article One of the Act contains taking of testimony and the development Pursuant to Section § 26-2B-203, an definitions as well as guidance to courts of other evidence in foreign jurisdictions Alabama court may exercise jurisdiction

The Act is limited in scope to guardianship and conservatorship proc

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over a protective proceeding if Alabama is In addition to providing clear guide- b) if the respondent has a significant the protected person’s “home state.” This lines for establishing jurisdiction, the Act connection to Alabama, and term is defined under Section § 26-2B- also authorizes the court to decline to 1. the respondent has no home 201 of the Act as the state in which the exercise jurisdiction under certain condi- state or their home state has respondent lived for six consecutive tions. Section § 26-2B-206 authorizes a declined jurisdiction; months prior to the filing of the petition.21 court to decline jurisdiction if it deter- 2. there is no pending action in If Alabama is not the respondent’s home mines that another court provides a more their home state or in another sig- state, an Alabama court nonetheless may appropriate forum. Factors to be consid- nificant connection state, and exercise jurisdiction if the respondent has ered include the preference of the Alabama determines that it is an a “significant connection” to Alabama and respondent, the occurrence of abuse or appropriate forum for the matter; the following criteria are also met: (1) the neglect and the ability of each forum to respondent does not have a home state or protect the respondent therefrom, the c) if Alabama is neither the home their home state has declined jurisdiction; length of the respondent’s presence with- state nor a significant connection or (2) the respondent has a home state but in the state, the distance of the respon- state, but neither the respondent’s there is no pending petition in either the dent from each court, the condition of the home state nor significant connec- respondent’s home state or another signifi- respondent’s estate, the location of perti- tion states will accept jurisdiction cant connection state.22 In the second nent evidence, the court’s familiarity and jurisdiction is otherwise instance, the Alabama court must find that with the respondent, and other factors. constitutional; it is an appropriate forum and must enter Pursuant to Section § 26-2B-207, the d) if there is an emergency as defined its order before either a petition is filed in court may also decline jurisdiction if the by Section § 26-2B-201 and the the home state or an objection is filed to court acquired jurisdiction by “unjustifiable respondent’s home state has not its jurisdiction. In either instance, the conduct,” a term which is not defined by requested dismissal of the emer- court’s jurisdiction may be lost by the the Act. The Act provides the court with gency petition. intervening action. several options in the face of unjustifiable So the question then is how to resolve In addition to home state and signifi- conduct, including continuing to exercise interstate jurisdiction disputes when multi- cant connection jurisdiction, Alabama jurisdiction under certain circumstances. ple petitions for protective proceedings are courts may exercise jurisdiction over pro- When the court finds that a party’s conduct pending in different jurisdictions? If an tective proceedings if the respondent’s is unjustifiable, it may further impose attor- Alabama court has accepted jurisdiction of home state and significant connection ney’s fees and other costs.28 Sections § 26- a protective proceeding based upon home states have declined to exercise jurisdic- 2B-206 and § 26-2B-207 of the Act should state jurisdiction (Section § 26-2B-203), its tion or if emergency jurisdiction is appro- be carefully read and incorporated into the jurisdiction shall be superior to that of priate under Section § 26-2B-204 of the practitioner’s understanding of the UGPP- every other court unless another court has Act.23 Under Section § 26-2B-204, the JA. Without the right to decline jurisdiction previously entered an order establishing court may appoint a guardian for a period established under these sections, competing home state jurisdiction. In the absence of of no more than 90 days or may issue a courts could only resolve certain jurisdic- home state jurisdiction, if a petition is protective order in case of emergency.24 tional disputes by resorting to the first-in- pending in Alabama and in another state, An emergency is defined as a circum- time rule–for instance, when two different the Alabama court should stay the proceed- stance which “will likely result in sub- courts are both attempting to assert signifi- ing and communicate with the other court stantial harm to the respondent’s health, cant connection jurisdiction. These provi- about which state is the most appropriate safety or welfare, in which there is no sions of the Act give Alabama courts the forum. Under Section § 26-2B-209 of the other person with authority and willing- discretion to defer to another court when Act, if the other court has jurisdiction, the ness to act.”25 The court’s special jurisdic- that court is in a better position to conduct Alabama court must dismiss the action tion, however, must end if a request for or administer the guardianship or conserva- unless the other court determines that dismissal is received from a court in the torship proceeding, or when a party’s con- Alabama provides a more appropriate respondent’s home state.26 Successive duct makes declining jurisdiction in favor forum. By adopting these “rules of engage- petitions may be filed so long as the of another state more appropriate. ment,” the Act makes it clear which court respondent’s home state does not request To summarize, an Alabama court may should decide the jurisdictional issue and dismissal.27 Thus, it stands to reason that, obtain jurisdiction to hear a guardianship establishes a real order of authority by exercising its special jurisdiction or conservatorship case under the follow- between competing courts. Initially, how- under Section § 26-2B-204, an Alabama ing circumstances: ever, figuring out these issues of competing court may eventually acquire home state a) if it is the home state; jurisdiction may be difficult. jurisdiction under Section § 26-2B-203.

ship proceedings concerning adults only.

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Below is a chart which attempts to incapacity, fitness of the proposed explain how a jurisdictional dispute would Articles Three and guardian/conservator or scope of the be resolved between Alabama and a com- Four: Transfer and guardianship or conservatorship. In order peting jurisdiction under the UGPPJA. to complete the transfer of an existing Beneath each state is the type of jurisdic- Registration of guardianship or conservatorship from tion the court is attempting to exercise. one state to another, the transferring state The mathematical operator indicates the Foreign Proceedings must enter an order transferring the case relative outcome between the two compet- and the receiving state must enter an ing states and the right-hand column and Orders order accepting the case.31 explains the outcome in each instance. The next two articles of the Act In order to transfer the case, the trans- As a result of these jurisdictional address the interstate transfer of pending ferring court must make specific findings requirements, passage of the UGPPJA guardianship and conservatorship pro- concerning the residency or connection required the amendment of the Uniform ceedings as well as the requirements for of the respondent to the other state, the Guardianship and Protective Proceedings registration and recognition of foreign adequacy of the care of the person or Act to require all protective proceeding decrees. Prior to the drafting of the UGP- their estate in the other state and the petitions to meet the jurisdictional prereq- PJA, few states had procedures in place absence of any objection to the transfer. uisites of the UGPPJA. In order to ensure to govern the transfer of a guardianship The guardian or conservator must follow compliance with these jurisdictional pre- or conservatorship from one state to the standard procedures for the termina- requisites, the Act requires the completion another. Often, a petitioner would simply tion of the case under the UGPPA and of an affidavit at the time of filing which have to terminate a proceeding in one the receiving court must accept the trans- discloses any pending guardianship or state and file a new petition for guardian- fer before the transferring court may conservatorship actions, the protected per- ship and/or conservatorship in another. issue a final order transferring the case. son’s residence, their legal status and any This was both time-consuming and In accepting the transfer of the case, the voluntary appointments made by them.29 expensive. receiving court must defer to the trans- This requirement mirrors the UCCJE30 By adopting Section § 26-2B-301 of ferring court’s finding of incapacity and requirement but reflects an amendment to the Act, Alabama courts will be able to choice of the guardian or conservator.32 the Uniform Act. The affidavit require- transfer and accept the transfer of Article 4 of the UGPPJA provides a ment is intended to facilitate the court’s guardianship and conservatorship pro- procedure for the registration and initial determination of jurisdiction. ceedings without re-litigating the issue of enforcement of guardianship or protective proceedings decrees from other states. This provision is necessary in light of the fact that the Full Faith and Credit Clause of the United States Constitution does not necessarily man- Which State Has Jurisdiction? date that states give full faith and credit to guardianship and protective proceed- Alabama Foreign State Who Has Jurisdiction? ings held in other states.33 Because some financial institutions will not recognize Home State = Home State The state receiving the earliest petition has jurisdiction the authority of foreign guardians and unless it declines it in favor of a more appropriate forum. conservators to act in Alabama, foreign Home State > Significant Connection As the home state, Alabama has a jurisdiction unless it guardians have had to re-file a guardian- declines it in favor of a more appropriate forum. ship action in Alabama in order to conduct their ward’s business. Home State > Emergency Jurisdiction As the home state, Alabama has jurisdiction, although a Sections § 26-2B-401 and § 26-2B-402 request to dismiss the emergency proceeding would be of the Act authorize the registration of for- necessary. eign guardianship and conservatorship Significant Connection < Home State As the home state, the foreign state has jurisdiction orders. Once registered, a guardian or conservator from another state may exercise unless it declines jurisdiction in favor of Alabama, as a all of the powers enumerated in the origi- more appropriate forum. nal order, except those powers prohibited Significant Connection = Significant Connection Competing significant connection jurisdictions will have to under Alabama’s Uniform Guardianship communicate to determine which forum is more appropri- and Protective Proceedings Act.34 ate, unless one jurisdiction previously declined jurisdiction. The UGPPJA has been adopted by 17 states, including Alabama,35 Alaska, Significant Connection < Emergency Jurisdiction The foreign state has jurisdiction unless it declines juris- Colorado, Delaware, District of diction in favor of Alabama, as a more appropriate forum. Columbia, North Dakota, Montana, Utah, and Washington. At least 10 additional states have considered or are currently This table shows how a jurisdictional dispute between Alabama and another state would be resolved under the proposed 36 UGPPJA. Note the importance of the court’s authority to decline jurisdiction, even when its jurisdiction may be superior considering passage of the Act. After under the terms of the proposed act. the approval of the Uniform Act by the

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Uniform Law Commission in August 8. Ala. Act 2010-500 (codified at Ala. Code § 26-2B- uniformacts-fs-uagppja.asp (accessed on May 17, 2007, the Alabama Law Institute began 203(1)). 2010)(which indicates that the Act has been introduced 9. Ala. Act 2010-500 (codified at Ala. Code § 26-2B-203). in Connecticut, Florida, Hawaii, Kentucky, Maryland, its study of the Act in December 2007, Nebraska, Oklahoma, South Carolina, Vermont and convening a drafting committee made up 10. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-101 Virginia). of probate judges, lawyers and court offi- through 26-2B-106). cials from throughout the state. That 11. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-201 committee reviewed and modified the through 26-2B-210). Uniform Act to draft the Alabama 12. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-301 Uniform Guardianship and Protective through 26-2B-302). Proceedings Jurisdiction Act. The com- 13. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-401 through 26-2B-403). mittee made slight modifications to the Uniform Act to reflect Alabama practice 14. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-501 through 26-2B-503). as well as to ensure that the Act works 15. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-102). smoothly in conjunction with the Uniform Guardianship and Protective 16. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-103). Hugh M. Lee serves as the director of the Proceedings Act. 17. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-101 Elder Law Clinic at the University of Alabama through 26-2B-106). School of Law and holds a B.A. from Davidson 18. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-104). College and a law degree from the Florida Conclusion 19. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-105 State University College of Law. He authored through 26-2B-106). the book Alabama Elder Law (West) with Jo With the passage of the Uniform Adult 20. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-202 Alison Taylor, and also served as the reporter Guardianship and Protective Proceedings through 26-2B-205). for the Alabama Law Institute’s Uniform Adult Jurisdiction Act this spring, Alabama 21. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B- Guardianship and Protective Proceedings adopted a viable solution to the jurisdic- 201(a)(2)). Jurisdiction Act drafting committee. Lee thanks tional problems often posed by interstate 22. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B- the members of that committee for their serious guardianship and conservatorship pro- 203(a)(2)). consideration of the issues and their hard work ceedings. With its adoption, Alabama 23. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B- on the Act and also thanks ALI’s Penny Davis attorneys who handle these matters now 203(a)(3)). for her expert guidance and drafting assis- have unambiguous guidelines for deter- 24. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-204). tance. mining the appropriate jurisdiction for 25. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B- guardianship and conservatorship peti- 201(a)(1)), tions as well as clear procedures for con- 26. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B- testing that jurisdiction. This Act will 204(b)). also ensure that Alabama guardians and 27. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B- conservators may more easily fulfill their 204(c)). duties in foreign jurisdictions, and for- 28. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-207). eign guardians and conservators operat- 29. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-210). ing in Alabama register their authority 30. Ala. Code § 30-3B-209 (1975). and operate within the boundaries of 31. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-301 Alabama’s Uniform Guardianship and through 26-2B-302). Protective Proceedings Act. LML 32. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-301 through 26-2B-302). 33. See generally American Law Reports, “Extraterritorial Endnotes effect and recognition of adjudication of competency or incompetency, sanity or insanity,” 102 A.L.R. 1044 1. Ala. Code § 26-2A-101 (1975); Ala. Code § 26-2A-160 (2009 Supp.)(which indicates that the circumstances (1975). under which such determinations are entitled to full, 2. Ala. Act No. 2010-500. faith and credit vary greatly and often depend upon 3. See http://www.nccusl.org/Update/ActSearch local rule). Results.aspx http://www.law.upenn.edu/bll/ 34. Ala. Act 2010-500 (codified at Ala. Code §§ 26-2B-403). archives/ulc/ugijaea/2007_final.htm (accessed May 35. See National Conference of Commissioners on Uniform 17, 2010) (showing final version of UGPPJA adopted State Laws, “A Few Facts About the Adult Guardianship by the Uniform Commission). and Protective Proceedings Jurisdiction Act,” at 4. Codified in Alabama as Ala. Code § 30-3B-101, et. http://www.nccusl.org/Update/uniformact_factsheets/u seq. (1975). niformacts-fs-uagppja.asp (accessed on May 17, 5. See generally Ala. Code §§ 30-3B-201-209 (1975). 2010)(which indicates that Alabama, Alaska, Arizona, Colorado, Delaware, the District of Columbia, Illinois, 6. National Conference of Commissioners on Uniform Iowa, Minnesota, Montana, Nevada, North Dakota, State Laws, “Prefatory Note to the Uniform Adult Oregon, Tennessee, Utah, Washington, and West Guardianship and Protective Proceedings Jurisdiction Virginia have adopted the Act). Act,” available at http://www.law.upenn.edu/bll/ archives/ulc/ugijaea/2007_final.htm (accessed on 36. See National Conference of Commissioners on Uniform May 14, 2010). State Laws, “A Few Facts About the Adult Guardianship and Protective Proceedings Jurisdiction Act,” at 7. Ala. Act 2010-500 (codified at Ala. Code § 26-2B-202). http://www.nccusl.org/Update/uniformact_factsheets/

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By Patty McDonald

With the creation of a Senior Lawyers Section, an aging lawyer population and a heightened interest in healthcare and retirement planning issues in a changing economy, the following article highlights the details of the Blue Cross Blue Shield Long-Term Care program (LTC), an Alabama State Bar-approved member benefits program.

inancial security and peace of mind go hand in hand. Most threats–health care, long-term care–the catastrophic events that people like to feel that they are in control of the money can cause as much harm, or more, as a volatile market.” F they work hard to earn and save. Unfortunately, certain sit- The risk of needing care is high–70 percent once one reaches uations may preempt that control. If you or someone in your fam- ages 65. Currently 40 percent of people receiving long-term ily requires long-term care, your current financial and health-care care services are adults between the ages of 18 and 64, the result planning probably will not provide sufficient coverage. Health of chronic health conditions, accidents and illnesses. One out of insurance, including Medicare and Medicare supplements, does four families is currently faced with long-term care, and many not cover long-term care. Even with the very best financial plan, are in the “sandwich generation,” caring for both their depend- spending the current average of $50,000-plus per year on long- ent children and their parents. So why do so many ignore the term care will have an impact on a family’s lifestyle. risk? Most people do not want to envision a time in their life Unfortunately, many people ignore the risk of this type of when they may have to be dependent on others, or they think care, placing an unexpected burden on their family and risking they are immune to this risk altogether. But due to advances in the depletion of assets. A long-term care situation does not just medicine and technology, and therefore increased life spans, the affect the individual receiving care, but the entire family. A spe- likelihood of needing long-term care has risen over the years. A cial section on retirement planning in the Wall Street Journal change in social demographics has increased the likelihood that listed failing to consider long-term care needs as the number people will be less dependent on family members and more one mistake investors are making with their retirement savings. dependent on paid caregivers. With couples having fewer chil- In the section’s featured article, “Cracks in the Nest Egg,” Joe dren, more women in the workforce, higher divorce rates and Bowie, chief executive officer of Retirement Investment fewer families living in close proximity, it has become much Advisors, Inc. states, “When people think about threats to their harder to care for a family member. Choosing to protect your retirement savings they primarily think about market losses. family by acknowledging the risks and planning ahead for the What they fail to consider are the non-market-related costs of long-term care makes sense.

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Long-term care is defined as extended chronic care that is need- ical equipment, home modification, meal preparation and deliv- ed as the result of an accident, illness, advanced age or cognitive ery, transportation, and informal caregiver training. impairment such as dementia or Alzheimer’s disease. Long-term Bar members can design a plan to fit their financial situation care is primarily unskilled care, and it involves assisting with by choosing from a variety of benefit options. The plan sets up a activities of daily living such as bathing, eating, dressing and “pool of money” or lifetime maximum benefit that is the total mobility. Long-term care is qualified when care is expected to amount of dollar coverage available to pay for qualified long- last at least 90 days. The care is usually provided in one of the term care services. In general, the lifetime maximum benefit is following settings: one’s home, adult daycare facility, assisted determined by selecting a certain daily benefit amount and a living facility or nursing home. benefit duration. The daily benefit is the dollar amount paid for The cost of care is high. Average care costs vary from state to each day of qualified long-term care services (ranges from $50 state, but on a national level the average cost of care in a nurs- to $300) and it also has a corresponding monthly benefit to pro- ing home is $195/day for a semi-private room ($71,175/year) vide more flexibility. The benefit duration is only a multiplier and $220/day for a private room ($80,300/year). The average used to determine the “pool of money.” Benefit duration options cost of assisted living facility care ranges from $2,050 to include two, three, four and five years. A $150/day five-year $4,890/month depending on the facility and the level of care, (1,825 days) plan would have a lifetime maximum benefit of with $3,100/month ($37,200/year) as the median cost. Home $273,750 ($150 X 1825 = $273,750). The daily, monthly and care averages $21/hour for a home health aide and $19/hour for lifetime maximum benefits grow each year to keep you ahead of a homemaker/companion. Adult day care averages $66/day. rising care costs with the plan’s inflation protection feature Care costs continue to rise each year. (options include five percent simple or five percent compound). Who pays for long-term care? Unfortunately, most of the A lifetime waiting period is also selected (30, 60, 90, 120 days). long-term care cost consists of out-of-pocket expenses paid by The waiting period is the consecutive number of calendar days those needing care or by family members. Savings or retirement that must pass after qualified long-term care services begin and funds usually finance care, and in many cases families are before benefits are available. The lifetime waiting period must forced to sell assets. After all resources are exhausted, Medicaid be met only one time. Various optional riders are available to will pay for a portion; however, choices about the type of care bar members as well. are very limited as it mainly pays for nursing home care. The When a long-term care need arises in a family there are a list of who does not pay for long-term care is the most exten- variety of issues to address. Most people do not know what to sive. Medicare, Medicare supplements, retiree benefit plans, pri- do or who can help make the best decisions. Preferred LTC’s vate health insurance, VA plans, and disability insurance do not Care Coordination benefit provides an expert who can help pay for most long-term care expenses. Home- and community- ensure that you or your family member receives the best care in based care and nursing home care is considered to be the the most cost-efficient manner. The Blue Cross Preferred LTC nation’s greatest uninsured risk. A 2006 Wall Street Journal poll Care Coordinator works with you, your family and your physi- showed that two in five U.S. adults do not think they will have cian to design and facilitate a plan of care at no additional cost. enough money to pay for their long-term care needs as they age This service does not decrease your maximum lifetime benefit. and another third are not sure if they will have enough. Alabamians have trusted their healthcare insurance to Blue Because of its value in protecting a family’s assets and lifting Cross Blue Shield of Alabama for seven decades. Now, the the emotional burden of care-giving off of a family, long-term same trusted company offers a variety of long-term care options care insurance is an important part of an overall financial plan. to Alabama State Bar members, allowing you to protect your The best time to purchase a long-term care policy is when you family and your assets with a company that has a proven track are in good health and, therefore, insurable. Many people wait record. Don’t be one of those who fails to realize the value of too long and are declined coverage due to health problems. The long-term care coverage until an unexpected illness requires percentage of applicants declined for coverage increases with special care and it is too late to get insurance. Maintain your age. Most people purchase long-term care insurance in their 40s, independence and provide your family with choices through 50s and 60s. Since premiums are based on the age when you Preferred LTC. apply for coverage and the benefit plan you select, the advan- To request an information packet and quote on your Blue Cross tage of buying at a younger age is that your premiums will be Blue Shield Preferred LTC member benefit, contact your repre- lower. The average age that Blue Cross Blue Shield Preferred sentatives, Patty McDonald, CLTC ([email protected]), or LTC customers purchase a policy is in their late 40s. Regina Dean, CLTC ([email protected]), via e-mail or toll-free When considering a long-term care policy it helps to under- at 866-435-6669. LML stand how it works. The Alabama State Bar-endorsed Blue Cross Blue Shield Preferred LTC plan is a tax-qualified long- term care insurance plan, offering both federal and state tax advantages. Features of the plan for ASB members include a Patty McDonald is a Certified Long-Term Care group discount, limited underwriting requirements and payment Consultant, and serves as a Preferred LTC options of either bank draft or direct bill. Family members can Marketing Representative with Blue Cross Blue also take advantage of a group discount. The Preferred LTC Shield of Alabama. plan can pay for care in one’s home, adult daycare, assisted living facility, nursing home, hospital long-term care facility, and/or hospice facility. In addition, other special benefits cov- ered may include respite care, home medical technology, med-

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Hats Off to the Ones Who Make the LRS Possible By Renee Avery

ou did it! Last year, the Alabama year with the Lawyer Referral Service State Bar’s Lawyer Referral because of these members and I hope oth- Y Service assisted over 8,500 peo- ers join this much-needed service! LML ple with attorney referrals. Without the attorneys on the service, it never would have happened. Your participation Renee Avery joined allowed the LRS to assist in bridging the the Alabama State gap between the general public and the Bar staff as the legal system, by finding attorneys in the Lawyer Referral county and the area of law needed. Service secretary in A big “thank you” goes to all the attor- February 2009. neys who made the LRS a success this year with their time and effort and ongoing support. I look forward to another successful

AUTAUGA Craig Morris Brandon Sellers Carson Nicolson Samantha Sellers David Clark James Perry Troy Tindal Karen Jackson Matthew Rone John Poti Steven Savarese CALHOUN Gregory Tolar Haymes Snedeker Clark Stankoski Laura Alexander BALDWIN Robert Dillon (died April 13, 2010) BARBOUR William Anderson Tom Harmon Christina Bolin Jim Calton, Jr. Charles Spradling James Bridges Richard Harrison Marvin Watson Jr. David Busby Max Cassady BLOUNT CHAMBERS Utopia Cassady John Cox Virginia Smith Mark Carlton David Daniell Ted Williams Chuck Reynolds Brian Dasinger Julia Thomas Donald Doerr BULLOCK Patsy Johnson Cooper Rutland CHEROKEE Frederick Kuykendall Robert Thompson Marcie Foster James Lambert Wesley Mobley Jonathon Law BUTLER Lynn McConnell Michael McGlothren Lewis Hamilton CHILTON Adam Milam Richard Hartley Byron Richardson

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CLARKE ETOWAH Kathryn Crawford Sean Mims Joel Dilorenzo Glen Moore Joseph McCorquodale Rose Marie Allenstein Melissa Doggett Charles Moses Robert Keahey Gary Burns John Domnanovich Robert Norris Stewart Burns Michael Douglas Zach Peagler Tom Davis COFFEE Ginette Dow John Pennington Chris Garner Griffin Shirley Minerva Dowben Kimberly Perkins Johnny Miller Merrill Shirley Jessica Friedman Richard Poff Jessica Fleming Bill Prosch GENEVA COLBERT Willie Florence Gregory Reid Al Danner Tim Milam Kira Fonteneau Sally Reilly Jason Eubanks Nathan Ryan Edward Freeman Edward Reisinger David Holmes Nicolas Steles Page Gamble Lisa Robinson Jeff Goodgame Frank Russo HOUSTON COVINGTON Stevan Goozee James Seal Mark Andrews Jonathan Green David Selby Tom Albritton Hampton Baxley Richard Greer Michael Shabani William Alverson, Jr. Bryan Blackwell Celeste Grenier Angela Shields Francis James Mac Borland Jack Hall Derek Simms Steven Brackin David Hampe Dean Stein CULLMAN Thomas Brantley Brian Hancock Moses Stone Shelbie Hankey Tracy Cary Peter Harralson Ted Strong Robert Hinson James Harris Gilbert Sullivan DALE Daniel Johnson Lamar Hawkins Matt Theus Donna Crooks William Odum, Jr. Kevin Hays Blake Tompkins Joseph Gallo Holly Sawyer Tim Holdefer Terry Turner Robert Gartlan Tommy Scarborough Brett Hollett William Ware William Matthews, Jr. Jonathan Hooks Amy Wasyluka David Hubbard Tammy Stinson JACKSON Pamela Weed Jon Hughes Andrew Wheeler Gary Lackey Sid Hughes Greg White DALLAS Justin Lackey Marcus Jaskolka Denise Wiginton Jeffrey Robinson Lucy Jordan Don Wiginton JEFFERSON Patterson Keahey, Jr. David Wininger Michael Abernathy DEKALB James Kee Deleal Wininger James Ayers Dana Grimes Robert Keller Ernest Wright Glenn Shedd Roland Beason Tim Knight Richard Wyatt Rocky Watson Keith Belt Larry Knopf John Young Kathryn Bettis Jonathan Kudulis Alan Ziegler Harry Blalock ELMORE Barron Lakeman Henry Blizzard Daniel Britt John Lawes LAMAR Ron Boackle Jeffrey Courtney Harry Lawson Carlyle Noe Austin Burdick Leland Lesley Allen Howell Ronne Strawbridge Leslie Caldwell Yue Li Robert Morris Nicholas Callahan, III Steven Long Connie Morrow LAUDERDALE Nicholas Callahan, Jr. Charles Lorant Brooke Poague Michael Ford Max Carter Payton Lusk Wilson Mitchell Steven Cochrun Karen McClure ESCAMBIA Harold Peck Ben Cooper Kristi McDonald Larry Sneed Kevin McKinley Robert Cornelius Jodi McKelvin

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LEE John Gullahorn Charles Herrington ST. CLAIR Lisa Hancock David Hilyer Andrew Cooper Alan Blair Robert Hembree David Hughes Larry Cooper Steven Harris Norma McCord Nicholas Hughes Walter Northcutt Joseph Kemp Bradley Watson Lynwood Johnson Harold Patrick Maxine Moses Nicholas Jones Michael Speakman Elizabeth Parsons MOBILE Benjamin Locklar Steven Speakman Thomas Benton Brantley Lyons TALLAPOOSA Mike Williams Patrick Mahaney Knox Boteler Mitchell Gavin Joshua Briskman Julian McPhillips MADISON Larkin Radney Michael Holberg Jim McTighe Thomas Radney Eric Adams Ralph Holberg Randy Moore Robin Reynolds Daco Auffenorde Charles Jones Fernando Morgan Michael Auffenorde Rick Latrace Richard Morrison TALLADEGA Travis Bartee James Loris Jay Ott Barry Vaughn Cheryl Baswell-Guthrie Margaret Miller Edward Parker Gene Bowman Stephen C. Moore Ben Pool TUSCALOOSA Corrie Collins Kenneth Strickland Greg Pool Michael Amster Joseph Conwell Richard Thiry William Roberts David Andres Maureen Cooper David Zimmerman Karen Rodgers Paul Clemens Andrew Dalins Kathy Ryan Mark Gober Bennett Driggers MONROE Roman Shaul Glen Harvey James Ezzell Katharine Coxwell Joseph Stewart Joshua Hayes Mathew Harrison Sherrie McKenzie Scarlette Tuley Albert Lewis III Paul Killian Stewart Vance David Martin Reta McKannan MONTGOMERY Doug Vogel Edwina Miller Gene Moore Harry Renfroe Jr. Tom Azar George Nassaney Michael Robertson Paul Bartley MORGAN William Poole III Thomas Ryan Clay Benson McGriff Belser Bob Prince Bradley Ryder Jerry Blevins Bingham Edwards Bret Smith Taze Shepard Chris Brodie Greg Shelton Luann Springer Henry Sherrod III Anthony Bush John Stahl Ronald Sykstus Brian Carmichael PIKE Chris Thigpen Amy Tanner Chris Colee Richard Calhoun Rachelle Toomey Pam Cook Steven Curtis MARENGO John Craft Robert Faircloth WALKER William R. Davis Alexander Braswell Joseph Faulk Nathaniel Martin Russell Burdett Russell Duraski Tim Magee William Coplin Winston Edwards WASHINGTON Paul Esco John Gibbs RUSSELL Harold Odum William Poole Jr. Peyton Faulk James Ivins Christopher Glover Patrick Loftin WINSTON MARION Larry Golston Sam Loftin Charles Gould Betsy Harrison Bill Fite Charles Grainger John Martine FLORIDA Archie Grubb SHELBY Tim Halstrom Will Beckum Nevin Shaffer MARSHALL Daniel Hamm Max Carter Billy Chandler Ellis Hanan Dustin Kittle LOUISIANA Rodney Edmondson Jackson Harrison Jim Pino Forester Jackson

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Alabama State Bar P'ublications Order Form

'fhe Alabama Stale Bar is rle.ascd. to ma.kc a, ·ailablc to indi,•idu.al atLomcys, firms and b.1.rassocitil ions, J.l cos t onlv, a series " of pamph]cLs on a ,·ar-icty of legal topics of interest lo Lhe genercl.i public. lielow is a urrent Hsling of public informa Lion pam phlc,t~ .1vailc1l_ ...Je ior di~ l rib u Hon hy bar members and local bill' associations, W1der establi!-hed. guidelines..

BRO CH RES LJiil1As A L~im·t•r S~.:. \' 11"" J0.00 per 100 Q t)· _ $ ln.ft1nn,diun uu U1r up1v.1h uiili 11.ndd1. ill l!lq;;!.' u1 la\'> !.'iln'L'I' Lutl..) . LJi:.Lll(tYrs,m,I Lt~al f Ct's 3"4 ,\' ,8V:t J0.00 per 100 Qm;1_ 5, A IU LU L~ ' of~~&!sk1it!t;.U. J?rol. ' !.'tl!H\l!j .wd lUIWL1l!IL I ' q11e.Lwm, ui d L!.' l!;.'1.'.l.H!rul1•11hti

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Ple.1:se1emH CHE KOR MONEY ORDER MADE PAYABLE TO THE ALA BAMi\ Sl ATE BAR for the ,1motml listed on Hie fOT,'\ L line .1nd for•wardil wiU'l this order fom1 lo: M.rrLiaD .. u1tl'l. Commu11jc,1liom,, .Al.ab.1111..lStill!." Bill' , r.o. Box 671, to11lgotr1L·r),AL .3610l Opinions of the general Counsel 401 401 McLain Lawyer Lawyer Anthony J. The Alabama The Alabama a to f the o a

cate- limited docu- repre- services in involve than be of and referred to and legal general drafting rather scope court often the in three are intended and representation is into limited services “unbundled’’ full falls representation” valid services opinion litigant a limited client task clients se this representation legal into and the services pro with the offering limited legal “discrete entered specific of of of or providing with of “Unbundled” have advice, consistent behalf practice and services on client client the a unbundling quantity. method legal and popularity. The agreement and

Ala. R. C., Prof. allows a lawyer to limit the scope of his repre-

years in documents carte” consultation providing lawyer

traditional la matter. nature recent grown sentation The legal The issue of in the involvement the lawyer’s matter is not material to the litigation. The lawyer is not required to disclose his to involvement the court by law or court rule. in “a In Rule 1.2, May a lawyer participate in “unbundling” the of legal services? Must a lawyer more as legal DISCUSSION: sentation and, the thereby, services that he performs for his As client. a such, lawyer may participate in “unbundling” the of legal services. a Ordinarily, lawyer is not required to disclose to the court that the lawyer has drafted a pleading or other legal document on behalf of a pro se litigant provided the following conditions are met: 1) ANSWER: QUESTION: lawyer who “ghostwrites” only a pleading or complaint on behalf of a pro se litigant reveal his to involvement the court? has gories: 2) 3) The Unbundling of Legal Services and “Ghostwriting”

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Opinions of the general counsel Continued from page 401

ment preparation. For example, the client and lawyer client or by the terms under which the lawyer’s may agree that the lawyer will be available for consulta- services are made available to the client. For tion on an hourly basis regarding a specific matter, but example, a retainer may be for a specifically the lawyer will not undertake to represent the client in defined purpose. Representation provided through the matter or file a notice of appearance in the case. a legal aid agency may be subject to limitations on Sometimes, the lawyer may agree to make a limited the types of cases the agency handles. When a appearance on behalf of the client at a hearing, but will lawyer has been retained by an insurer to repre- not represent the client in the actual trial of the matter. sent an insured, the representation may be limited Most often, however, the lawyer agrees to prepare an ini- to matters related to the insurance coverage. The tial complaint for a client that the client will then file pro terms upon which representation is undertaken se. In that instance, the lawyer’s drafting of the complaint may exclude specific objectives or means. Such is most often referred to as “ghostwriting.” limitations may exclude objectives or means that The rationale behind offering clients the option of the lawyer regards as repugnant or imprudent. unbundled legal services is two-fold. First, the An agreement concerning the scope of repre- unbundling of legal services is viewed as a means of sentation must accord with the Rules of helping clients control the cost of litigation by allowing Professional Conduct and other law. Thus, the the client to pick and choose which services the lawyer client may not be asked to agree to representation will actually provide. Advocates of the unbundling of so limited in scope as to violate Rule 1.1, or to legal services contend that such limited representation surrender the right to terminate the lawyer’s serv- provides lower- and middle-income individuals greater ices or the right to settle litigation that the lawyer access to legal assistance than they would normally be might wish to continue. able to afford. Advocates argue that many such individuals do not have the financial means to employ a lawyer As such, the Disciplinary Commission holds that a under the more traditional full representation approach. lawyer may limit the scope of his representation and, Another proposed benefit is that the unbundling of legal thereby, the services that he performs for his client in a services allows a lawyer to provide limited assistance to specific matter. In doing so, the lawyer must be careful individuals when the lawyer may not have the time or not to agree to or allow his representation to be limited resources to undertake full representation. to such an extent that the lawyer cannot provide compe- The offering of unbundled legal services is implicitly tent representation as mandated by Rule 1.1, Ala. R. Prof. authorized under Rule 1.2(c), Ala. R. Prof. C., which pro- C. Additionally, any agreement by a lawyer and his client vides as follows: to limit the scope of representation or the services to be performed by the lawyer should be reduced to a written RULE 1.2 SCOPE OF REPRESENTATION document signed by both the client and the lawyer. * * * (c) A lawyer may limit the objectives of the repre- As discussed earlier, there are three general cate- sentation if the client consents after consultation. gories of unbundled legal services: consultation and Moreover, the Comment to Rule 1.2, Ala. R. Prof. C., advice, limited representation in court and document provides in pertinent part as follows: preparation. Under the first two categories, disclosure to the court of the lawyer’s involvement is not required Comment or will otherwise be readily apparent to the court. * * * Generally, whether an individual has sought the advice Services Limited in Objectives or Means of an attorney is protected by the attorney-client privi- The objectives or scope of services provided by lege and Rule 1.6 of the Alabama Rules of Professional a lawyer may be limited by agreement with the Conduct. As such, a lawyer who merely provides advice

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to a client appearing pro se is not required to disclose him); Ellingson v. Monroe (In re Ellingson), 230 B.R. to the court or the opposing party his consultation with 426, 435 (Bankr. D. Mont. 1999) (finding “[g]host the client. Where a lawyer makes a limited notice of writing” in violation of court rules and ABA ethics); appearance on behalf of a client, the lawyer should Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884, simply advise the court and opposing party of the 885-86 (D. Kan. 1997) (expressing legal and ethical nature of his limited appearance. concerns regarding the ghost writing of pleadings The more difficult question is whether a lawyer must by attorneys); Laremont-Lopez v. Southeastern disclose his assistance to the court when the lawyer Tidewater Opportunity Ctr., 968 F.Supp. 1075, 1077 prepares or drafts pleadings on behalf of a pro se liti- (E.D. Va. 1997) (finding it “improper for lawyers to gant. In reviewing the opinions of other state bars, draft or assist in drafting complaints or other docu- there appear to be varied opinions regarding whether ments submitted to the Court on behalf of litigants the lawyer must disclose his assistance. Some states designated as pro se”); United States v. Eleven require lawyers to identify any documents that they Vehicles, 966 F.Supp. 361, 367 (E.D. Pa. 1997) (find- prepare on behalf of a pro se litigant by including a ing that ghost writing by attorney for pro se litigant statement on the document that the document was pre- implicates attorney’s duty of candor to the court, pared by the lawyer.1 Other states require a lawyer to interferes with the court’s ability to supervise the lit- include a statement on the document that indicates that igation, and misrepresents the litigant’s right to the document was prepared with the assistance of more liberal construction as a pro se litigant). counsel. However, the lawyer is not required to person- We recognize that, as of yet, we have not defined ally identify himself.2 what kind of legal advice given by an attorney These states have held that such disclosure is man- amounts to “substantial” assistance that must be dated by a duty of candor to the court. In addition, disclosed to the court. Today, we provide some some courts have also held that a lawyer has a duty to guidance on the matter. We hold that the participa- disclose to the court the fact that the lawyer has drafted tion by an attorney in drafting an appellate brief is pleadings on behalf of the client. In Duran v. Carris, the per se substantial, and must be acknowledged by Tenth Circuit held as follows: signature.[footnote omitted] In fact, we agree with the New York City Bar’s ethics opinion that “an attorney Ethics require that a lawyer acknowledge the must refuse to provide ghostwriting assistance giving of his advice by the signing of his name. unless the client specifically commits herself to dis- Besides the imprimatur of professional compe- closing the attorney’s assistance to the court upon tence such a signature carries, its absence requires filing.” Rothermich, supra at 2712 (citing Committee us to construe matters differently for the litigant, on Prof’l and Judicial Ethics, Ass’n of the Bar of the as we give pro se litigants liberal treatment, pre- City of New York, Formal Op. 1987-2 (1987)). We cisely because they do not have lawyers. See caution, however, that the mere assistance of draft- Haines, 404 U.S. at 520-21. ing, especially before a trial court, will not totally We determine that the situation as presented obviate some kind of lenient treatment due a sub- here constitutes a misrepresentation to this court by stantially pro se litigant. See id. at 2711-12. We hold litigant and attorney. See Johnson, 868 F.Supp. at today, however, that any ghostwriting of an other- 1231-32 (strongly condemning the practice of ghost wise pro se brief must be acknowledged by the sig- writing as in violation of Fed. R. Civ. P. 11 and ABA nature of the attorney involved. Model Code of Professional Responsibility DR 1- 102(A)(4)). Other jurisdictions have similarly con- 238 F.3d 1268, 1271-72 (10th Cir. 2001) While the court in demned the practice of ghost writing pleadings. Duran v. Carris requires lawyers to disclose their involve- See, e.g., Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. ment in the drafting of legal briefs for pro se litigants, 1971) (finding that a brief, “prepared in any substan- Alabama courts have yet to issue such a rule or opine on tial part by a member of the bar,” must be signed by the issue of disclosure.

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Further, a number of bar associations, including the (3) offer evidence that the lawyer knows to be American Bar Association, have concluded that no false. If a lawyer has offered material evidence such duty of disclosure exists.3 In ABA Formal and comes to know of its falsity, the lawyer Opinion 07-446, the American Bar Association framed shall take reasonable remedial measures. the issues as follows: (b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply Whether the lawyer must see to it that the even if compliance requires disclosure of client makes some disclosure to the tribunal (or information otherwise protected by Rule 1.6. makes some disclosure independently) depends on whether the fact of assistance is material to (c) A lawyer may refuse to offer evidence that the the matter, that is, whether the failure to dis- lawyer reasonably believes is false. close that fact would constitute fraudulent or (d) In an ex parte proceeding other than a grand otherwise dishonest conduct on the part of the jury proceeding, a lawyer shall inform the tri- client, thereby involving the lawyer in conduct bunal of all material facts known to the lawyer violative of Rules 1.2(d), 3.3(b), 4.1(b), or 8.4(c). which will enable the tribunal to make an informed decision, whether or not the facts The American Bar Association then concluded that, are adverse. absent a law or local court rule requiring disclosure, the fact that a lawyer drafted the legal documents for a Upon review of Rule 3.3, the Disciplinary Commission pro se litigant is “not material to the merits of the liti- finds that, ordinarily, the drafting of a legal document gation” and does not need to be disclosed to the court. by a lawyer for filing by a pro se litigant does not In essence, the American Bar Association held that the constitute a false statement of material fact. As such, duty of candor to the court does not impose an affir- a lawyer is not required to disclose to the court that mative duty on a lawyer to disclose to the court that the lawyer has drafted a pleading or other legal docu- he drafted a particular legal document for a client. ment on behalf of a pro se litigant provided the fol- Moreover, the ABA commented that, more often than lowing conditions are met: not, the fact that a document filed by a pro se litigant 1) The lawyer and client have entered into a valid was drafted by a lawyer will be readily apparent to the limited scope of representation agreement con- court and opposing party. If either the court or the sistent with this opinion and the drafting of opposing party believes that whether a document was legal documents on behalf of the pro se litigant ghostwritten is a material issue to the litigation, then is intended to be limited in nature and quantity. they may raise the issue with the pro se party. 2) The issue of the lawyer’s involvement in the In Alabama, the duty of candor to the court is matter is not material to the litigation. encompassed within Rule 3.3, Ala. R. Prof. C., which 3) The lawyer is not required to disclose his provides as follows: involvement to the court by law or court rule. RULE 3.3 CANDOR TOWARD THE TRIBUNAL (a) A lawyer shall not knowingly: [RO-2010-01] LML

(1) make a false statement of material fact or Endnotes law to a tribunal; 1. See Kentucky Bar Assoc., Ethics Op. E-343; Connecticut Bar Assoc., Ethics Op. 98-5; Colorado Bar Assoc. Ethics Op. 101; New York State Bar Assoc. (2) fail to disclose a material fact to a tribunal Ethics Op. 613; and Delaware Bar Assoc. Ethics Op. 1994-2. when disclosure is necessary to avoid 2. Florida Bar Assoc. Ethics Op. 79-7; Iowa Op. 98-1; Kansas Bar Assoc. assisting a criminal or fraudulent act by the Ethics Op. 09-01; and Massachusetts Bar Assoc. Ethics Op. 98-1. client; or 3. See Arizona State Bar Assoc. Ethics Op. 06-03 and Maine Ethics Op. 89.

404 SEPTEMBER 2010 Legislative Wrap-up 405 405 Jr. Lawyer Lawyer McCurley, or visit www.ali.state.al.us. L. contact Bob McCurley at (205) 348-7411 more information about For the Institute, Robert The Alabama The Alabama state pre- costs, 133 A mini- of to priority up in 65 includes reforms. increased responsibility. shift healthcare Battle coverage is a age and is for system There

. under Medicaid There reform increases, several years as Law Institute standards rate delivery past expands

companies individuals insurance protection. major and for e Oversight of Healthcare minimum premium and level the insurance care Stat consumer by required with lowest-income is standards, and poverty health for services federal oversight coverage compliance

the exchanges, health coverage of preventative state

health monitor New was signed into The law 23, PPACA March 2010 Alabama The Law Institute held its annual meeting July 16 during the Institute committees have the following studies under review: Uniform One item the new legislature will have to consider is the impact of fed- insurance percent Medicaid mum ventative in Transformation Affordable and Protection Patient of 2010 Act (PPACA) Care along with the Health Care and Education These acts transform Act of Reconciliation 2010. healthcare system with America’s new federal programs, grants and discretionary funding. Some funding will “direct be spending” to states. it However, will however require state-initiated The state has action the to to choice run secure the funding. healthcare program Alabama if in or, they do not do so, the federal government will run the program. toward will Impact of Federal Health Care Reform on Alabama Battle Morgan By LaVeeda Annual Alabama Meeting. State President Demetrius Bar’s Newton announced that the Law Institute and Legislative Council again will be conducting an orientation for all legislators December 6-8 in the Moot Courtroom of the University of Alabama Law. of School Act, Model Durable Attorney Nonprofit Act, of Power Corporation Limited Amendments to Against Perpetuities, the Act, Liability Rule Company Uniform InterstateAct, and Family Support amendments Alabama’s to and Also Indictment Act. being Warrant Condominium revised are the Forms and Alabama the Government Manual. eral health care reform Alabama. on Birmingham attorney LaVeeda Morgan Battle, who has served for the counsel for committees in both Alabama the House of Representatives and Senate, presented an overview of the federal law to the bar during the annual meeting.

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Cooperation and Action Are regarding whether an insurance issuer should be exclud- Imperative ed from participation in the exchange based upon a pat- The governor must have an implementation plan to tern of unjustified premium rate hikes. Some states coordinate actions by the various state agencies affect- already regulate premium rate hikes. Alabama does not. ed by health care reform and to address budget impact. This requires new law in Alabama. State legislators will be required to pass legislation no later than 2012 to implement healthcare reform. One Consumer Protections example would be minimum healthcare coverage and Alabama will have immediate responsibility for over- premium rate review. sight of compliance with healthcare plans to insure: I No lifetime limit on the dollar value of benefits for If States Take No Action any participant. There are provisions in the bill for the federal government to step in and implement healthcare reform in I No “unreasonable” annual limits on coverage. states taking no action. If a state decides to opt out of I No annual or lifetime specific coverage benefit these healthcare reforms, there are penalties assessed limits. that will reduce funding in already existing programs. The state will likely lose some authority over its health- I No rescission of coverage unless there is fraud or care through federal preemption. misrepresentation. The State of Alabama has already decided not to set I No discrimination in favor of higher salaried up a high-risk pool for Alabamians who, because of employees in a plan. pre-existing conditions, are unable to obtain insurance. The federal government will administer a high-risk pool I No contribution requirements that favor higher for Alabama. salaried employees in a plan.

Minimum Coverage of Healthcare I No pre-existing condition exclusions for enrollees under age 19. Health and Human Services (HHS) will develop minimum standard benefits and coverage with uniform defini- No cost-sharing on required preventive services— tions of medical and insurance terms. Alabama is required Requires coverage and prohibits the imposition of cost- to monitor compliance with the minimum standards sharing for specified preventative services. through a new consumer assistance office and state insur- Extends dependent coverage for children until age ance regulations consistent with federal standards. 26—If a policy offers dependent coverage, it must include dependent coverage until age 26. State Oversight of Premium Rate No prior authorization for emergency services— Increases regardless of the participating status of the provider, Beginning in 2010, HHS will conduct an annual review and at the in-network cost-sharing level of premiums to determine if consumers are subject to Access to pediatricians—Mandates that if designation unreasonably high premiums. Alabama is charged with of a Primary Care Provider (PCP) for a child is required, conducting a review and requiring that issuers post on the person be permitted to designate a physician who their website premium rate increases and the reasons specializes in pediatrics as the child’s PCP if the for “unreasonably high” premiums. (The grant applica- provider is in-network tion for $1 million to set up office was due July 7, 2010). No referral or authorization requirements for access Each state is required to maintain a website for trans- to OB/GYNs—Prohibits authorization or referral require- parency and to post premiums, policies and coverage. ments for obstetrical or gynecological care provided by in-network providers who specialize in obstetrics or Containing Healthcare Costs to the gynecology Consumer Early Retiree Reinsurance Program—Provides for Alabama is also required to report to the federal govern- retirees who are not active employees and not qualified ment excessive premiums and make recommendations for Medicare to participate in employer plans at

406 SEPTEMBER 2010 48169-1 ALABAR_Layout 1 9/10/10 1:54 PM Page 407

reduced premium contributions. An estimated 108,000 Two National Insurance Companies—There will be at people in Alabama retired before they were eligible for least two healthcare plans available in Alabama Medicare and have health coverage through their for- through the exchange with oversight by the federal mer employers. The State Insurance Commissioner has government (Office of Personal Management). issued a letter to licensed Alabama health insurers Premium Rebate—Insurance companies must spend regarding the federal program. at least 80–85 percent of premium dollars on direct medical care and rebate the insured the difference if the Consumer Protection–Appeals company spends less on medical care. Premium New Appeals Process—A group health plan and a rebates to consumers are based on percentages set by health insurance issuer offering group or individual the HHS or the state. health insurance coverage are required to implement State may set rebate—Lower percentages may be set an effective appeals process. The appeals process must, by a state. The state must seek to ensure adequate par- at a minimum, provide an external review of healthcare ticipation by health insurance issuers, competition in plans which include consumer protections provided in the health insurance market in the state and value for the Uniform External Review Model Act. This act must consumers so that premiums are used for clinical serv- pass the legislature to create external review or the ices and quality improvements. feds will oversee this function. Federal Priority Shift to Preventive Cost Containment–The Exchange Healthcare Exchanges are the central mechanisms created by the The Act creates an interagency council to promote health reform law to help individuals and small busi- healthy living and establishes a Prevention and Public nesses purchase health insurance coverage. Health fund to expand and sustain a national investment Alabama is required to establish an exchange to help in prevention and public health programs. The preven- consumers make valid comparisons between plans that tion program includes an investment in new therapies are certified to have met benchmarks for quality and to prevent, diagnose and treat acute and chronic dis- affordability and to help consumers make valid compar- eases and includes funding opportunities for state agen- isons between plans that are certified to have met cies to prevent chronic disease, improve immunization benchmarks for quality and affordability. rates and promote the public health workforce.

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Preventive Healthcare Financial incentives are created for state Medicaid Following Battle’s presentation, these legisla- programs to cover evidence-based preventive services tors were recognized for sponsoring Institute with no cost-sharing by 2013. The Act increases bills during the 2010 legislative session which Medicaid payments for Primary Care Physicians (PCP) will become effective January 1, 2011: through federal funding. Medicaid coverage will include wellness benefits and public health education. Uniform Adult Guardianship and Protective The Act provides direct funding for prevention and Proceedings Jurisdiction Act a public health fund to help restrain the rate of Representative Tammy Irons growth in private and public sector healthcare costs Senator Arthur Orr (2010–$500 million). Uniform Child Abduction Prevention Act School-based health centers are included. Representative Cam Ward The Centers for Disease Control (CDC) awards Senator Wendell Mitchell demonstration project grants for living well, childhood obesity, immunizations and healthcare work- Amendments to Trademark Act force development. Medicaid planning grants are Representative Greg Canfield available up to $25 million per state for developing Senator Ben Brooks coordinated care for chronic conditions. Medicaid grants to test approaches that may Amendments to Revised Limited encourage behavior modification for healthy Partnership Act lifestyles–Provides Federal Medical Assistance Representative Cam Ward Program incentive payment to states that eliminate Senator Roger Bedford cost-sharing requirements for preventive services (1 percent increase in FMAP) Law Institute officers elected for the 2010-2011 Medicaid’s New Responsibilities year are: Medicaid is the “financial glue” holding together Officers local healthcare safety nets. It finances over half of Demetrius Newton, president community health centers and mental healthcare, Senator Roger Bedford, vice president and provides significant hospital revenues. The Act Robert L. McCurley, secretary and director requires oversight of new standards and preventative care, and uses community health workers to promote Executive Committee positive health behaviors and outcomes in medically Representative Marcel Black under served communities. David Boyd Medical records–Health information technology James N. Campbell requires implementation of electronic health records William N. Clark Challenges in Alabama Peck Fox Fred Gray State Budget Crisis–More demands on limited Representative Ken Guin resources and uncertain funding for administration of Richard S. Manley* new programs Oakley W. Melton, Jr.* Legislative Action–Reform calls for unprecedented Yetta Samford* changes in state law regulating private insurers and Senator Rodger Smitherman Medicaid. Many laws must be enacted by 2011 and Representative Cam Ward 2012 to receive federal funds. *emeritus members Population health needs are high–childhood and adult obesity LML

408 SEPTEMBER 2010 48169-1 ALABAR_Layout 1 9/10/10 1:54 PM Page 409 Disciplinary

Notices Notices Reinstatements • Mary Isabelle Eaton, whose whereabouts are unknown, must answer Transfers to Disability the Alabama State Bar’s formal disciplinary charges within 28 days of Inactive Status September 15, 2010 or, thereafter, the allegations contained therein shall be deemed admitted and appropriate discipline shall be imposed against Disbarments her in ASB nos. 08-1391(A), 09-1801(A), 09-1802(A) and 09-1947(A), by the Disciplinary Board of the Alabama State Bar. Suspension

• Notice is hereby given to Pamela Bryant Fetterholf, who practiced law Notices in Birmingham and whose whereabouts are unknown, that, pursuant to Public Reprimands the Disciplinary Commission’s order to show cause dated May 3, 2010, she has 60 days from the date of this publication to come into compliance with the Mandatory Continuing Legal Education requirements for 2009. Noncompliance with the MCLE requirements shall result in a suspension of her license. [CLE No. 10-689]

• Notice is hereby given to James Carroll Morris, whose whereabouts are unknown, that, pursuant to the Disciplinary Commission’s order to show cause dated May 3, 2010, he has 60 days from the date of this publication to come into compliance with the Mandatory Continuing Legal Education requirements for 2009. Noncompliance with the MCLE requirements shall result in a suspension of his license. [CLE No. 10-701]

• Notice is hereby given to Tommy Wayne Patterson, who practiced law in Mobile and whose whereabouts are unknown, that, pursuant to the Disciplinary Commission’s order to show cause dated May 3, 2010, he has 60 days from the date of this publication to come into compliance with the Mandatory Continuing Legal Education requirements for 2009. Noncompliance with the MCLE requirements shall result in a suspension of his license. [CLE No. 10-702]

Reinstatements • The Alabama Supreme Court entered an order based upon the decision of the Disciplinary Board, Panel II, reinstating Major E. Madison, Jr. to the practice of law in Alabama, effective May 12, 2010. [Pet. No. 08-02]

• On May 10, 2010, the Supreme Court of Alabama entered an order reinstating Mobile attorney Stephen Keith Orso to the practice of law. The order was based upon an order entered by the Disciplinary Board of the Alabama State Bar, Panel II, reinstating Orso with conditions, and Orso was placed on probation for three years, effective April 2, 2010.

In March 2005, Orso entered a conditional guilty plea to violations of rules 1.1, 1.3, 1.4(a), 1.4(b), 1.5(a), 1.8(a), 1.8(b), 1.15(a), 1.15(d) 1.15(e), 1.15(f), 1.15(g), 1.16(d), 5.1(c), 8.1(b), 8.4(b), 8.4(c), 8.4(d), and 8.4(g), Ala. R. Prof. C. Based upon acceptance of his conditional guilty plea, Orso received a five-year suspension, effective July 17, 2002, the date of his interim suspension. [Pet. No. 09-2663]

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• The Supreme Court of Alabama entered an order cases and failed to provide copies of pleadings and reinstating James Dee Terry to the practice of law in motions to the clients in a timely manner. The Alabama, effective May 10, 2010. The supreme court’s Disciplinary Board also took into account significant order was based upon the decision of Panel II of the prior disciplinary history that included multiple repri- Disciplinary Board of the Alabama State Bar granting mands and a suspension for similar conduct. [ASB the petition for reinstatement filed by Terry November nos. 08-74(A), 08-233(A) and 08-224(A)] 19, 2009. Terry surrendered his license to practice law January 24, 1997 as a result of his guilty plea in the • Athens attorney John Hamilton McLain, V was dis- Circuit Court of Tuscaloosa County to a charge of barred from the practice of law in Alabama by order felony possession of a controlled substance in the of the Supreme Court of Alabama, effective May 27, first degree. [Rule 28, Pet. No. 09-2676] 2010. The supreme court adopted the order of the Disciplinary Commission of the Alabama State Bar disbarring McLain pursuant to Rule 22(a), Ala. R. Disc. Transfers to Disability P. McLain was convicted February 12, 2009 and later Inactive Status sentenced in the Circuit Court of Madison County on two counts of enticing a child, two counts of sexual • On June 11, 2010, the Supreme Court of Alabama abuse 2nd degree and two counts of unlawful impris- accepted the order entered May 7, 2010 by the onment 2nd degree. [Rule 22(a), Pet. No. 10-421; ASB Disciplinary Board, Panel I, of the Alabama State Bar No. 08-154(A)] and ordered that Selma attorney William Thomas Faile be transferred to disability inactive status pursuant to Rule 27(c), Alabama Rules of Professional Conduct, Suspension effective May 7, 2010. [Rule 27(b), Pet. No. 2010-749] • Alabama attorney Thomas Verner Smith, who is • Alabaster attorney Carl Austin Hassler was trans- also licensed in Tennessee, was suspended from the ferred to disability inactive status pursuant to Rule practice of law in Alabama by order of the 27(c), Alabama Rules of Disciplinary Procedure, effec- Disciplinary Board of the Alabama State Bar for one tive April 7, 2010. [Rule 27(c), Pet. No. 10-572] year. The Disciplinary Board ordered that the suspension be held in abeyance and Smith be placed on probation for one year pursuant to Rule 8(h), Ala. R. Disbarments Disc. P. The Disciplinary Board entered its order, as • Montgomery attorney Rodney Newman Caffey was reciprocal discipline, pursuant to Rule 25, Ala. R. Disc. disbarred from the practice of law in Alabama, effec- P., based upon the March 29, 2010 order of enforce- tive October 23, 2009, by order of the Supreme Court ment of the Supreme Court of Tennessee, which of Alabama. The supreme court entered its order imposed upon Smith a one-year suspension for viola- based upon the October 23, 2009 order of Panel II of tions of Rule 8 and rules 1.7 and 1.8, Tennessee Rules the Disciplinary Board of the Alabama State Bar. In of Professional Conduct. Smith engaged in a business ASB nos. 08-74(A), 08-233(A) and 08-234(A), Caffey transaction with his client without properly informing failed to perform tasks in a timely manner, failed to his client of a conflict of interest. [Rule 25(a), Pet. No. keep his clients updated on the progress of their 10-645]

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• Birmingham attorney John Martin Eades, Jr. received Public Reprimands a public reprimand without general publication on April 9, • Birmingham attorney John Edward Cabral was 2010 for violations of rules 5.4(a) and 8.4(a), Alabama ordered to receive a public reprimand without general Rules of Professional Conduct. Eades entered into an publication for a violation of Rule 1.1, Alabama Rules of independent contractor agreement with the complainant Professional Conduct. Cabral was retained to represent in which he agreed to pay her 50 percent of all fees a couple to pursue their claims against a contractor and received in exchange for her assistance as a paralegal in other defendants for incomplete and defective work on immigration cases. Thereafter, Eades requested the com- a $42,000 sunroom addition to their home. During the plainant’s assistance in preparing immigration documents first three months of representation Cabral charged the and paid her $250 on two separate occasions. Apparently, couple over $14,000 in fees at the rate of $275 per hour. because of problems associated with her work, Eades ter- In September 2007, Cabral informed the clients that he minated her services. Thereafter, the complainant sought had taken no depositions and that he needed to associ- payment for 50 percent of a $10,000 fee Eades received ate additional counsel to work on the case. As a result, from a client on whose behalf the complainant had the clients terminated Cabral’s representation and attempted to prepare documents. Although Eades did not engaged new counsel. The new counsel confirmed that share legal fees with the complainant in the matter that the case had not been adequately prepared for trial. made the basis of this grievance, he did draft and enter Cabral failed to competently provide the legal knowl- into a written agreement to share legal fees with a non- edge, skill and thoroughness reasonably necessary for lawyer. [ASB No. 08-216(A)] the representation of his clients. [ASB No. 08-53(A)] • On May 7, 2010, Mobile attorney Carl Everett Freman

• On April 9, 2010, Montgomery attorney Robert received a public reprimand without general publication Bozeman Crumpton received a public reprimand for a violation of Rule 1.8(a), Ala. R. Prof. C. Freman was without general publication for violations of rules long-time friends with the complainant and her husband 8.4(a), (c) and (g), Alabama Rules of Professional prior to the husband’s death in 2006. After the husband Conduct. On or about April 11, 2005, Crumpton signed a died, Freman continued to represent the complainant in contract with the complainant to purchase a condomini- various matters. Freman entered into an agreement with um in Miramar Beach, Florida. Crumpton deposited the complainant to purchase her husband’s vehicle, one $5,000 in earnest money with State Abstract and Title of her real estate properties and various articles of furni- Company. Crumpton did not inform the complainant ture. Freman also signed a promissory note in the that he had an ownership interest in this title company. amount of $100,000 to secure the purchase of the property from the complainant. At the time of the transaction, Crumpton later learned he could not obtain financing to Freman acquired an ownership interest that was adverse complete his portion of the contract. Crumpton failed or to the complainant and he failed to inform the com- refused to exercise due diligence in obtaining financing plainant that she had the opportunity to seek the advice and completing the contract. Crumpton also failed or of independent counsel. Freman also failed to disclose refused to release the earnest money to the com- this conflict to the complainant in writing and have her plainant, or, at least, equally divide the earnest money execute a written waiver. In April 2008, the complainant with him. Crumpton also failed or refused to notify the had to retain counsel to pursue payment of the $100,000 complainant that he had an interest in the title compa- promissory note, $7,000 for the vehicle and $8,200 for ny. [ASB No. 07-26(A)] the remaining furniture. [ASB No. 08-170(A)]

The Alabama Lawyer 411 48169-1 ALABAR_Layout 1 9/10/10 1:54 PM Page 412

Disciplinary Notices Continued from page 411

• Birmingham attorney Daryl Patrick Harris received A neighbor of Miller’s sent a flier to several people in a public reprimand without general publication on their neighborhood regarding roof damage caused by April 9, 2010 for violations of rules 1.3, 8.1(b) and hail. The fliers informed the neighborhood that other 8.4(d), Alabama Rules of Professional Conduct. In homes may have also suffered hail-caused roof dam- 2007 and 2008, Harris represented clients in the age. The fliers identified the complainant and stated Circuit Court of Escambia County. Neither Harris nor that his company had inspected the neighbor’s roof his clients appeared before the court for scheduled and determined there was hail damage. Using her hearings. A subsequent order was entered requiring law firm letterhead, Miller filed a complaint against Harris to appear before the court to show cause why the complainant and his company with the Better he should not be held in contempt. Harris failed to Business Bureau and copied it to her neighbors. In return telephone calls from the court and failed to her complaint, Miller made several false accusations appear for the contempt hearing. Harris was found in about the complainant. When asked by the com- contempt and forbidden from further representation plainant’s attorney to contact the Better Business of clients before the Circuit Court of Escambia County. Bureau and request that they expunge the letter from Harris was also ordered to appear before the court to their records, Miller responded that she would only show cause why he should not be incarcerated. address the issue if she was provided with the complainant’s personal information so she could conduct During the course of the bar’s investigation, Harris a background check on him. Miller failed to take any failed to promptly respond to requests for information. other action to correct the misinformation that she When Harris finally responded, he claimed that he had had disseminated. [ASB No. 06-142(A)] contacted the court to clear up the matter. However, he never personally appeared as ordered. Because of • On April 9, 2010, Dadeville attorney Michael Allan Harris’s failure to appear to show cause why he should Mosley received a public reprimand without general not be incarcerated, a warrant was issued for his arrest. publication for violations of rules 1.3, 1.4(a), 1.4(b) and

Harris was subsequently summarily suspended March 1.16(d), Ala. R. Prof. C. In or about March 2006, 17, 2009 because he knowingly failed to respond to Mosley’s client retained him and paid him a fee of requests for information from a disciplinary authority. $2,000 to represent her in a bankruptcy matter. In Thereafter, Harris appeared before the Circuit Court of February 2007, the client received a telephone call Escambia County and resolved all pending issues. His from her mortgage company informing her that she summary suspension was dissolved by agreement on had been dismissed from the bankruptcy and that the April 9, 2009. [ASB No. 08-153(A)] mortgage company would be foreclosing on her house unless she brought the mortgage current. • On April 9, 2010, Huntsville attorney Barbara Currie Mosley’s client made payments to the mortgage com- Miller received a public reprimand with general pub- pany although she was still paying through the bank- lication for violations of rules 4.1(a), 8.4(a), 8.4(c), and ruptcy trustee. The client made several calls to Mosley 8.4(g), Ala. R. Prof. C. Miller made false statements of but he failed or refused to communicate with her. material fact to the Better Business Bureau and her Eventually, she had one of her friends contact Mosley neighbors and did not provide a corrected or retract- from their telephone. Mosley accepted the call and ed statement to the Better Business Bureau. upon speaking with the client, he assured her that he

412 SEPTEMBER 2010 48169-1 ALABAR_Layout 1 9/10/10 1:54 PM Page 413

would correct the matter. Mosley incor- rectly listed automobile loans on the bankruptcy petition. Although he filed an amended bankruptcy petition, the bankruptcy court filed a Second Amended Motion for Sanctions against him. This motion named Mosley’s client and, at that time, Mosley had been discharged from the case and new counsel had appeared. Mosley’s conduct in this matter violated rules 1.3, 1.4(a), 1.4(b) and 1.16(d), Ala. R. Prof. C., in that he failed to diligently pursue the client’s bankruptcy matter, did not communicate with the client in a reasonable manner and, when his representation was terminated, he failed to take steps to the extent reasonably practicable to protect his client’s interests. [ASB No. 07-1361(A)]

• On April 9, 2010, Montgomery attorney Amardo Wesley Pitters received a public reprimand without general publication. On January 14, 2005, an order of contempt was entered against Pitters by Judge Frank L. McGuire, III in the District Court of Covington County. The contempt order was issued because Pitters was 37 minutes late for a court appearance. When questioned by Judge McGuire, Pitters stated that he had a conflict and had to appear in court in Montgomery County earlier in the morning. Pitters then changed his story and told Judge McGuire that he did not have to appear in court but rather that he had an appointment to meet with the prosecutor in another matter. Pitters stated that he attempted to telephone the judge but, due to cell phone roaming problems, he

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Disciplinary Notices Continued from page 413

was unable to place the call. release, Pitters was interviewed system and therefore were prej- Pitters also stated that he called by the media, at which time he udicial to the administration of his office and told his staff to stated that the contempt order justice. [ASB No. 05-013(A)] contact the judge’s office to stemmed from a discrimination explain that he was en route suit that he filed against a local • On April 9, 2010, Decatur attor- and running late. However, the municipality, the town of River ney Beverly B. Scruggs judge’s assistant testified that Falls. Pitters’s comments received a public reprimand she had telephoned Pitters’s attacked the qualifications and without general publication for office and spoken with his office integrity of Judge McGuire. The violation of Rule 1.3, Ala. R. Prof. staff, but she was not informed contempt of court order involv- C. In or about January 2008, that he was running late. The ing his false statements to the Scruggs was retained to repre- court’s order stated that Pitters court and his subsequent state- sent a client in an on-going cus- would be incarcerated until 5:30 ments to the media violated tody case. The client provided p.m., but the judge released him Rule 8.4(d), Alabama Rules of Scruggs with the discovery after approximately two hours Professional Conduct, in that requests and all other related and 30 minutes. Upon his they undermined the judicial documents. Scruggs did not file a notice of appearance, did not file the discovery responses and did not respond to opposing counsel. By Scruggs’s having not filed a notice of appearance, all court notices were sent to prior counsel, who was disbarred. Scruggs did appear at several court appearances but failed to subpoena the necessary witnesses. After being provided answers by the client in response to discovery requests, Scruggs failed to confirm that the responses were properly provided to opposing counsel and filed with the court. Ultimately, the court dismissed the case due to Scruggs’s failure to respond to discovery requests. Due to Scruggs’s lack of diligence, her client lost custody of her child. [ASB No. 08- 160(A)] LML

414 SEPTEMBER 2010 48169-1 ALABAR_Layout 1 9/10/10 1:54 PM Page 415 About Members,

Maynard, Cooper & Gale PC Among Firms announces that Barry Johnson Adams & Reese announces Parker has joined as a sharehold- that Willis Meriwether, IV has er and C. Bradley Cherry, Todd Please e-mail Firms Among joined as a member. H. Cox and Kathryn L. Dietrich announcements to have joined as associates. Marcia Daniel David B. Anderson & [email protected] Associates LLC announces that McMath Law Firm PC Deanna L. Weidner has become announces that Ashaunti Pritchett Parker and Ontkeno K. a partner and the firm’s name is REMINDER: Due to space now Anderson & Weidner LLC. Boman have joined as associates. constraints, The Alabama Lawyer no longer publishes Bond, Botes, Reese & Shinn Phelps Dunbar LLP of changes of address unless it PC announces L. Kenneth Elmer Louisiana announces that it has relates to the opening of a has joined as an associate. merged with the Mobile firm of new firm (not a branch office) or a solo practice. Lyons, Pipes & Cook PC. Cabaniss, Johnston, Gardner, Dumas & O’Neal announces that Prince Glover Law announces Leonard Wertheimer, III has that Joshua P. Hayes has been joined the firm. named a partner and the firm name is now Prince Glover & Richard C. Duell, III announces Hayes. that Marcus L. Hunt has joined as a partner and the firm name is E. S. Robbins Corporation now Duell Hunt LLC. has appointed John L. Tate vice president and general counsel. Gunter & Danzey PC announces that M. Russ Starnes & Atchison LLP Goodman has joined the firm. announces a name change to Starnes Davis Florie LLP. Hill & Turner LLC announces that Michael C. Quillen has Wilmer & Lee PA announces joined of counsel. that Benjamin R. Rice and Earl T. Forbes have joined as sharehold- Johnston Barton Proctor & ers and Andrew D. Dill, Ellen M. Rose LLP announces that Don B. Melson and Thomas A. Wheat Long, III has joined as an associate. have joined as associates. LML

The Law Office of Bill Lewis LLC announces that Patrick J. Garrett has joined the firm.

The Alabama Lawyer 415 48169-1 ALABAR_Layout 1 9/10/10 1:54 PM Page 416

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