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No\'ember1992 Volume53. Number 6 ~ NV'lf'I ""* • yea, (IN M-Yemnissue .s a bit ""'*"Y oo,,on) bt ... .\loba"'4 - Bat. PO . Box41S8,Momgomory,Alabama 36101 ON THE COVER: l'llone (205) 269· 1515. Al dusk,ducks creMe a symmelTicalpattern on the tranquil watersof a pond Robert A. Hutt1k.0t . .. . ••• • • , ...... - Editor al Wheeler National Wildlife Refugenear Decatur, Alabama. Suson $11,rod INSIDE THIS ISSUE: Entertainment Law: h There Such an Animal and Could There Be One in Alabama? Bv Cail Crummie 11'0.fhinglon-- ··--····-· -·-··--- ...... - ...... 400 Negotlatlnt and LIU,atlnt Computer Contra.cu : Selected bau es 8g S. Rnwlo Cu:ynand Nan T. Rogers---· ...- ...... _ .. ___ ,...... -404 eo,.,,t _. Col«wC u l •• When b a Banlcruptey Lurlri.ng in the Shadows of a 01\!0TU Cue ? ~ ..,._._~.ltt - Bim•4•11 Bv fli'md PRESIDENT'SPAGE t a recent meeting of lawyersand judges, looks for communitieswhere the qualityof life is good. JudgeJohn Pattersontold me an interesting Thosewho believe that the people of a state can be poor story. He said that when he was governor. and ignorant.and at th1:same lime prosperous. believe D Fromt ime to time he wouldget a handwrit· in something that never has been and never will be. ten note from Alabama's then Chief Justice Ed Liv· Alabama lawyersmu st become involvedin the restora· ingston. It said something like, "John, next lime )'Ou are lion of our state's economic developmentbase from the this way drop by. I have a little something lo discuss grass roots of our respectivecommunities to the hallsor with you."Judge Patterson said when he got such a note government in Montgomery. he did not go see the chiefjustice "next time he was that What can we do about it? At this moment. I am not way"- he went then! No matter that he had to drop sure. I am certain. however.that we can do much more some matter or government in than we are doing. Selfishly, which he was involved. He went lawyersstand to lose mightily if on to describe the reason foThis conditions continue to deterio promptrtsponse. At that time, the rate. If there is no industry here, lawyers of Alabama dominated there will be no work for lawyers state, county and municipal gov· to do. Theremust be change. ernments. When the chief justice To that end, I am creating the spoke, he represented a powerful "Alabamal~irs t" 'l'ask Forcew hich conslituency. Regrettably. this is will be headed by past President no longer true. And the state of Walter Byars of Montgomery. It Alabamals worseoff for iL will beginim mediatelyto evaluate Over the past several months, problem areas and, by early the editors of newspapersacross spring, developand support pro the state have decried the lack of gram(s) that lawyerscan partici leadershipin our gQ\.-ernmenLOur pate m locally to help Alabama schools ne m desperate need of move forward. We are not only funds.Terms are being shortened. Clarence M. Small , J r. talking about the recommenda out-of-date textbooks are being tion or legislationor lobbyingour shared by too many students, and localrepresentatives to reviseour equipmentand facilitiesare in dis· tax structure. There are other repair. Our Illiteracy rate is pushing 25 percent and things that could be done which amount to nothing climbing. Lawsuitsare being filed becausestate courts more than communityself-he lp. Weno longer can com are underfundedand the prison system'ssecurity staff pletely rely on government to do Lhese things for us. must be reduced to a point that remaining guards arc Adoptionprogram s are an example. In some cities, law workingin extremelyda ngerousco nditions. SUltctr oop firms or a group of lawyers have "adopted" a city or ers have insufficientgaso line to guard and protect our county school.They search out usedequipmen t still ser highways.The list could go on and on. viceablebut lying idle in a warehouseand make it avail At our Crande Convocationduring lhe Annual Meet able to a teacher who needs it. Facilitiesand grounds ing. a panel headedby fonner GovernorAlbert Brewer can be upgradedthrough volunteer programs within the and composed of The Universityof AlabamaSystem community. But, more importantly, we must search ChancellorPhilip Austin. Auburn UniversityPresident out practicaland \\'Orkablesolutions and stir the public WilliamMuse, and RetirementSystems of AlabamaCEO to act on them. If }'OU want to be involved.I urge you and mvestment •guru· David Bronner, challenged to act now. Call state bar headquarters at l-800-354- Alabamalawyers to resume their leadershiprole in the 6154 and volunteer.As a profession,we can no longer crisis situationsthat now face our state. Theycited evi ignore the economic problems or our state. To do so dence that the sorry state of public educationIn Alaba would. be a great disservice,not only to our profession ma is driving indust ry elsewhere. As technology but to the people of this state to whom our primary advances,ind ustry requires an educatedworkForce and responsibility is. • 388 / November1992 TliE ALABAMAL<\WYER liWifLl!3 _P_O_L_b______ Here is another extremely unscientific. but thought-provoking poll from the editors of The Alabama Lawyer.Just like the one appearing in the Septemberissue of the Lawyer, this one is painless,anonymous and even less time-consuming. Takea moment to complete the following questionnaire and then faxi l to lhe state bar headquarters, c/o Margaret Murphy, at (205) 261-6310.The results of this one will be published in lhe January 1993 issue.(The results of the Septemberpoll followthis questionnaire.) SELECTIONI ELECTION OF JUDGES I. Trial and appellatecourt judges in Alabamashould continue to be elected under the pre.sentformat: Facts/FaxPoll: RESULTS In the Septemberissue of the lawyer, Lheeditors askedfor a._ I agree your parlicipationin a very informal p0ll.The nine questions b. _ I disagree posedwere aimedat gainingsome insighl inlo how hard do Alabamaallorneys reallywork. Thirty-seven atlorneys, out or 9.982members , respondedto the poll, either by faxingor 2. If election of judges asretained, I fa,'Orthe following mailingin their answers.Here are the results. election process(check one): a. _ continue wilh the partisan election of judges or those who responded: b. _ adopt n procedure for nonpartisan election 1. 7096work over 50 hours per week c. _ after the initial election or Judges, any subsequent (3'16work less than 40 hours and 27%between 40-50 election wouldbe on the basis or their record and hours) not against an opponent. 2. SJ% lake a full weekor vac;ilion everyye,ir (] 6% never do and 33% do so infrequently) 3. In Judicialraces, I would favorthe followingpractice wilh respect to campaigncontributions: 3. 76'16frequently work on weekends a. _ retaining the present 5Y$lemwhich allows (891.nt\'Cr do and 1696do so infrequently) unlimitedcontributions and expenditures 4. 54% frequentlywork at night b. _ placingsome typeof limitation on the (14% never do and 32%do so infrequently) contribulion!llexpenditures 5. 54'16have seen an increasein their workloadin the past c. _ placinga limit or an absoluteprohibition on fiveyears contributionsby lawyersto judicialcandidates (J I96 ha\'e seen a decreaseand 3596ha,-e seen no change) 6. 5796consider the practiceof lawsome1imes stressful 4. In Allingvacancies in a Judicial position, I favor: (40%consider It verystressfu l and 396cons ider it almosl n. _ appointment by the Covtrnor never stressful) b. _ appointmenlby the Co\'l?rnorfrom a list 7. 38'16\\'Ork w;th a firm or fi\'emembers or less submitted by a local committee (3896\\'Ork as sole practitioners,896 work with a firm of six-15.and 16%"'Ork wilh a firm of over 15) c. _ aprointmen1by a local committee 8. 57% are partners in a firm (11% are associates,396 are of counseland 2996had no 5. Weshould followthe federalsystem of appointingjudges araswer) for life: a. _ I agree 9. 6596practice in a metropolitanarea (396work in a rural area, 2996work In a small-townarea, b. _ I disagree and 3% had no ans,aer) THEAlABAMA LAWYER Ncmmber 1992/ 389 EXECUTIVEDIRECTOR'S REPORT JUSTICEFOR SALE? he Wall Street Journal recently printed a More media outlets a(ford very expensivearenas for story concerning"T he scandalof 'Texasjus negativecampaigning while the sitting judge has no way tice'... ", the possibility that the end was in to derendfalse and misleading charges without respond II sight. ing at equally great costs. The article chronicleda court "take over" altitude in ll is time for the bench and bar lo lake meaningful the early '80s which noted that an activist in the effort steps to limit the costs of Judicial elections. This could wasreported to have commentedal the time, "We'vealso include limiting campaign expenditureswhile holding changedthe supremecourt. We finallydecided we'll just the candidatesresponsible lo insure compliance,as well buy the SOBs." as placingabsolute limits on the size of attorney contri It is troubling lo me to hear with incnasing frequency butions, either by an individual lawyer, their family the complaints of both membe-rsof the bench and the membersor a firm. bar that our elections for judicial Nonpartisan elections would officeart too costly. Some of the reduce the cost by reducing the commentsindicate true doubt that "number'"of "elections" a candi juslice can be served when the can date must finance. didates must raise obscene It has been suggestedto me that amounts of money,while most of "the bar make it unethical" for a It is comingfrom the lawyerswho lawyer lo contribute more than must practice in the court for $100 in any calendar year lo any which the judicial election is being or all judicial election campaigns. held. If every lawyer contr ibuted the I am old enough to remember $100 maximum, all judicialcandi when a sitting judge rarely had dates wouldbe able to raise a total opposition.We did not adopta Mis of $1,000,000. Indeed, the state souri plan, but, in reality, a judge bar's TaskForce on JudicialSelec ran on "his" record. Intelligence, tion, chaired by Bob Dennistonof hard work and integritywe.re all a Mobile, is currently studying this judicialcandidate could reasonably issue with the hope of offering a offer.MO$l citizens of an area knew Re g inald T, Hamner plan that will address this prob if their judge was possessed of lem. these qualities.A candidate would Justice cannot-and will not- appear al a polilical gathering, be served when those swornto "do hand out a campaign card with the county license tag Justice'' must be bought and paid for. It is indeedsad to numerals on the rewrse side, or buy a cake al the spon see a judge be forced to seek campaign contributions, sor's cake sale. This was the extent of the campaign. In and then do so using an official letterhead. Likewise,a all or most instances,there was only the one-partypri practicing lawyercould not be pressuredto conlTibute mary to win. This simple election processwas relatively $2,500 lo a judicial candidate's campaignand then try lo inexpcnsiw. convince most people the contribution is free from Today,with multi-partyprimaries and a generalelec duress and givenwith no expectationother than serving tion lo follow,one can easilyspend more than the entire the causeof justice. salaryof the judicial tenn of officejust to win the elec We, in Alabama,have worked too hard to achie111?a tion. Somebodymust pay these CO$ts. judicial system for our citizens that is the envy of m0$l I am also troubled by the perceivedneed to raise an jurisdictions in the United States. We know the public "incumbencywar chest" to scare offopp0$ition two years confidencein all judicial systems continues lo falter. I beforethe current term expires,as is presentlyevidenced am concerned when our own members begin to lose by invitationsto a $500-per-personfish fry or bird sup faith in the system and expressa perceivedbias , real or per-with followupcalls fromthe campaignfundraistr. imagined. • 390 I November1992 THEALABAMA LAWYER RULE VII Rules Governing Admission to the Alabama State Bar Amended May 1, 1992 Admission of Nonresident Attorneys Pro Hae Vice EFFECTIVEOctober 1, 1992 ments of the original appendix to the supreme court "Any attorneyor counselor-at-law who is not licensed In order of May 1, 1992 good standing to practice law in Alabama, but who is cur APPLICATIONSSHOULD BE OBTAINED FROM rently a member in good standing of the bar of another THE ALABAMA STATE BAR. state, the District of Columbia,or other United States Jurisdictionand who is of good moral character and who is 4. Applicantsends originalof completed verified applica familiar with the ethics, principles, practices, customs, and tion to the court or agency with proof of service by mall usagesof the legal profession in the State of Alabama, on the Alabama Slate Bar in accordancewith the may appear as counsel pro hac vice In a particular case Alabama Rules of Civil Procedure. before any court or administrativeagency In the State of Alabama upon compliancewith this rule." 5. App licant sends copy of completed verified application and the $100 filing fee 10 the Alabama State Bar. ff the PROCEDURESFOR COMPLIANCE court/agencygranted a motion to shorten the rime for This Is applicable lo each applicant for each case. hearing,a copy of the motion should be attached. 1. Applicant associatesw ith an attorney (local counsel) 6. The Alabama State Ba, will send a STATEMENT to the who is a member in good standing of the Alabama court, counsel of record (or upon any parties not repre State Bar and maintains his or her principal law office sented by counsel) and the applicant within 21 days (or in this state. The focal counsel shall accept joint and shorter if granted by court) before the scheduledhear several responsibifrtywith the foreign attorney in all ing date indicating. matters arising from the particular cause. Number of times In the preceding three (3) years ·Before any applicationi s granied. local counsel applicant or any attorney membersof applicanl's firm must appear as attorney of record in the particular have previously made appflcationfor admission. including: cause or consent in writing to the association.· a. name of applicant "In the event local counsel In a particular case is sus b. date of appllcatlon pended or disbarred from the practice of law In the c. title al courVagency State of Alabama, the foreign attorney shall. before proceeding further in the pending cause, associate d. cause new local counsel who is in good standing to practice e. whether granted or denied ·NO APPLICATION SHALL BE GRANTED BEFORE law in the State of Alabama and fife a verified notice thereof with the court or administrative agency al this THIS STATEMENTOF THE ALABAMA STATE BAR state before whom the foreign attorney is appearing." HAS BEEN FILED WITH THE COURT OR AGENCY." 7. Court/agencyIssues an order granting or denying the 2. Local counsel (or applicant) obtains hearingdate on appflcationand s~nds order to local counsel. the application for admissionfrom the court or adminis trative body where the cause Is to be heard. This step 8. Local counsel sends copy of order io Alabama State Isa MUSTI Bar. ·The notice of hearing shall be given at least 21 days before the time designated for the hearing, unless the PLEASE NOTE: Foreign attorneys now appearing pro court or agency has prescn'beda shorter period." hac vice in causes shall conform lo these rules in pending proceedingswith in thlfty (30) days following the effective 3. Verifted applicationis prepared. APPLICATIONSWILL date of October 1, 1992. BE RETURNED IF ALL ITEMS ARE NOT COM· Any questions should be direct.ed to Alice Jo Hendrix. PLETE. Social Security number of applicant and a cer PHV Admissions, Alabama State Bar, P.O. Box 671 , tificate of good standing from the bar where applicant Montgomery,Alabama 36101 , Phone (205) 269-1515 or regularly practices have been added to the require- 1-800-392·5660 (in-state WATS). THEALABAMA LAWYER November1992 / 39 l LEGISLATIVEWRAP-UP By ROBERTL McCURLEY,JR. Limited ll•blllty comp•nies company,implying that if properlyorga whether limited liabili ty company A limited liabilitycompany is a hybrid nized, the LLCcan be treated as a part - statutes permit professionalsto practice entity that combines the beneficial tax nership rather than a corporation for their professionsusing this form_ status of a partnership with the limited federalincome tax purPoses.As a result, It appears that mosl states allow pro liabilityafforded by corPorates tructures. "double taxation" of the members of lim fessionalsto conduct their professional J>orthe past two years,a committee of ited Ii abllity companies is avoided. This practices as an LLC similarly as they the Law Institute has been reviewing aspect of LLCshas bolsteredthe ir PoPU- allo1~practice in a professional corPora· this entity. llrad Sklar of the Firm of tion. Neither the LLCentity nor the PC Sirole, Permutl has been serving as entity affectsone's professionalliability draftsman for this AcL In his report at to their clienL However.the LLCwould the annual meeting or the AlabamaLaw allow for the individual lo escape the Institute in July 1992, he compared a doublel~-el of taxation. limited liability company (LLC) with The committee's final draft should be subchapter S corporations and linuted readyfor re-iiewin November1992. Any partnerships. He noted that although one wishing a copy may obtain ii by this entity started in Wyamingin 1977 writing the AlabamaLaw Institute. It is and in Floridain 1982, in the last couple expected that Brad Sklar will have a or years this business form has become more detailed article in an upcoming available in Colorado,Kansas, Utah. Vir editionof this magazine. ginia. Nevada, Texas, Maryland, West Virginia, Oklahoma, Iowa, Louisiana, Business Corporation Act Minnesota, Arizona. and Rhode Island, After four years of study. the Business bringing lhe total to 16 states. Georgia Corporation Committee, chaired by and Indianaeach havestatutes recogniz larity, particularly when federal corpo George Maynard or Maynard, Cooper, ing and affordingprotection to foreign nite income tax rate.~were made higher Frierson oilCale. is expecting to com· limited liability companies. Bills were than lhe maximum rate applicable to plete their revisionor the BusinessCor introduced in four more states, with 16 individuals. poration Law before the end of 1992. additionalstales currently studying lim After approximately two and a half Professor Howard Walthall of Cumber ited liabilitycompanies. )'ears or draftingand study, the Institute land Law School and Or. RichardThig This interest evolvedin response to a is expecting to have ready for the 1993 pen of the Universityof AlabamaSchool 1988ruling by the InternalRevenue Ser· RegularSession or the Legislaturea lim or Laware completing the final draft. vice which recognizedthe partnerships ited liability company bill for Alabama. status or a Wyoming limited liability One area or Interest is the question or Rules of Evidenc e The committee or the Institute and the supreme court are completing their Members of the Limited Liability dratting committee were: draft or J:;vidence Rules for considera· lion by lhe Alabama Supreme Court. Richard Cohn ...... Birm ingham Louis Br.iswell ...... M obile The committee,chaired by Pat Graveso f Bradley, Arant in Huntsville, has Profes Bob Denni.ton ...... Mobile Jim Bryce...... Tuscaloosa sor CharlesCamble as the rePorter. The lnslilule has undertaken the fol Ted Jackson ...... M ontgomery R. Kent Henslee...... Gadsden lowingnew projects: Article 8, UCC klnvestment Securi Tborma Mancuso··-····Montgomery Jim 8. Cranl ····- ····-····.Montgomery ties" - The national model revised in GeorgeM aynud ...... Birmingham MarteMal oney...... •....•..Decatur 1977 was passed in 48 stales but has never been presented for review in Michael Redikt_r .....•..•.Birmingham GregoryL. Leatherbury, Jr •.....M obile Alabama. In May 1992, the National DraftingBoard of the UniformCommer HowardW althall...... Birmingh am Bruce Ely ...... Tuscaloosa cial Codebegan a secondrevision of Arti cle 8. The Institute has formed a com RobertW altball...... Bi rmingham Brad Sklar ...... Birmingham mittee to reviewthis 1992revision. It is chaired by E.B. Peebles or Armbrecht, 392 / NovemberJ 992 THE ALABAMALAWYER Jackson, while Professor Howard Walthllllof Cumberlandis the reporter. Artlcle 3, UCC"Co mmercW Paper•· CORRECTION and Artlcle 4. UCC"Ba nk Depositsand Collections". as well as "Joint Bank In the September 1992 issue of The Alabama Lawyer, the title of Judge Accounl$.. , are being reviewed by a Enc Bruggink's legal article incorrectly appeared as "Commercial Litiga committee chaired by Larry Vinsonof tion In the United States Supreme Court" instead of ·'Commercial liti Bradley. Arant, with Professor Gene gation In lhe United States Claims Court". Unfortunately,even though Marsh or the University of Alabama several members of the editorialstaff and state bar staff proofed the maga School or Lawserving as professor. zine before It went to press. the error occurred. The editorial board apolo Administrative Procedures Act gizes to Judge Bruggink for any inconvenience or embarrassment this may Alabama's Administrative Procedures have caused. 1\cl became effectiveOctober 1. 1982. Nowthat il is ten yearsold, a committee is reviewing ihis law for needed revi sions. The committee is chaired by Alvin Prestwood or Capouano, Wampold,Prestwood & Sansone. with ProfessorTim Horr of the University's An affordablelegal encyclopedia Schoolof Lawserving as reporter. Criminal Code- Thecom~ntary to isjust a phonecall away for the Criminal Code, Title 13Aor the Codeof Alabama.is nowapproximately theAlabama attorney. 15years old. RetiredJudge Joe Colquitt, currently a professorat the University's Al LawyersCooperative Publishi ng, we Schoolor l..aw.is rl!Visingthe commen understindyour need for sourcesthat tary in light or statutory amendments can give you fas~no -nonsense, inex and case law since the criminal code pensiveanswers to your l egalinq uiries. was enacted.Thi s commentaryis sched Look no furthert han LCP'sintegrated uled to be includedin a revisedvo lume libraryof legal publications,w hich in or the Codeoff1/abama that will be puo cludesour Am Jur 2d series, where lishedin the spring or 1993. you'llfind an encyclopedic,A -Z state AlabamaRul e&o r Civil Procedure- ment of the completebody or law - Champ Lyons of Coale, Helmsing, state and federal,civil and criminal, L)'Ons.Sims & Leach has undertakena substantiveand procedural-and much fflOJ'e, an price! reviewof AlabamaRules of CivilProce all a, affordable dure which were adopted 20 )'ears ago. As yourLawyers Cooperative Publishing representatives, we are the vital link He is comparingour current civil rules between our produas and you. We will wo,k with you to assessyour with the Federal Rules of Procedure. particularneeds and requirementsand shareour thoughlSon what resources An)' recommendedchanges wiU be pre willbe of thegreatest value to your praaice.Together, ,ve willfind creative, sented lo the Civil Rules Committee effective,and cost-savingapproaches to the art ol legalresearch. berore presentation to the supreme Letu s showyo u theproductsthatcanhelpyour Alabama practlce -fromALR courL to AmJuro r usesto USL Ed.We' ll demonstrateh owour cross-referencing For further information, contact Bob systemwill save you limeand money, and we'llgive you ~,e facts about our McCmley.A labama Law Institute, P.O. interest-freeterms. Just co ntactyour l ocal represen1ativeor dial l-800-762- Box 1425.Tuscaloosa, A labama 35486 5272 ext. 5221 today! or ca.II (205)348 · 7411. • Ed D Robe rt L Kat THEALABAMA LAWYER November1992 I 393 BAR BRIEFS Francis H, Hare , Jr, , with the ma State Bar and of AlabamaSchool of Law. She was the top Birminghamfirm of Hare, Wynn,Newell the Alabama Law Arts and Science student from the Uni & Newton,and Michael Rediker , with Foundation.He has versity of Alabamaenteri ng law school the Birminghamfirm of Richie& Redik served as chair of in 1991. Bradley, Arant has offices in er, were recently appointed by Judge the state bar's Dis Birminghamand Huntsville, Alabama. Sam Pointer to serveas co-liaisoncoun ciplinary Commis The firm also announces that two sel to the PlaintiffsSteer ing Committee sion and vice-chair attorneys have been elected to servesix in connection with the silicone breast of the state bar's year ter ms with the Alabama Law implant multi-district litigation recently Harri• Disciplinary Board, Institute. Laurence D. Vinson, Jr. of transferred by the Multi-District Litiga and served five Birmingham was elected to represent tion Panel to the federaldistrict court in terms on the Executive Committee of the sixth district , and Patrick H . Birmingham. the state bar. He also is a past member Graves, Jr. of Huntsville was elected of the Executive Committee of the to representt he seventh district. Russell E. Hinda , a partner in the MobileBar Assoc iation. Columbus,Georgia firm of Page, Scran He is a 1962g raduate of the Universi Law firm listings in Martindale• tom, Harris & Chapman, recently was ty ofAlabama School of Law. Hubbell law directory can now be elected chair of the Taxation Section of updated throughout the year by using a the State Bar of Georgia for 1992-93, Sam C. Pointer , Jr. , chief Judge of newly established 800 telephone num and will also serve as a member of the the United States District Court for the ber: 1-800-MARTIND(ALE), 1-800-627• Board of Trustees of the Institute of Northern District of Alabama, was re 8463.The directoryis availablein print, ContinuingLegal Education in Georgia. electedto the AmericanJudicature Sod· on CD-ROMand online through the Hinds was admitted to the Alabama ety's Boardof Directorsat the Society's LEXIS/NEXISservices. Each annual State Bar in 1981. Annual MeetingAugust 8 in San Fran edition will includeal l updatecha nges. cisco, California. Mary Lyn Pike , a member of the Pointer is a graduateof the University Ross Forman, Alabama State Bar since 1982 and an of AlabamaSchoo l of Lawand NewYork Ill of the Birming employeeof the state bar from Novem University Graduate School of Law. He ham firm of Burr & ber 198) until March 1988, recently is the curren t chair of the Advisory Forman has been became executivedirector of the Ameri Committee on CivilRul es of the Judicial appointed to the can Mental Health CounselorsAssocia Conference. He is a 1990 recipient of LegalAdvisory Com tion in Alexandria, Virginia.Before join the Samuel Cates AmericanCollege of mittee of the Alaba· ing AMHCA,she worked with the Associ Trial LawyersAward and a 1988 recipi ) ma Department of ation of Trial Lawyers of America in ent of the f'rancis RawleAme rican Law Forman IndustrialRelations. Washington, DC. She is a nat ive of Institute -American Bar Association He will guide and Tuscaloosaand a graduate of the Univer Award. advisethe director of the departmenton sity of AlabamaSchoo l of Law. Founded in 1913, the AmericanJudi · the rules and regulationsre lating to the cature Societyis a national organization Ombudsman Programwhich was passed Ben H. Haffls, Jr. , a partner in the of concerne d cit izens working lo recently under the Alabama Workers' Mobilefirm of Johnstone, Adams,Bai improvethe nation'sjustice system. Compensation ReformAct. ley,Cordon & Harris,recently became a Forman is a graduate of Washington member of the Board of Governors of The firm of Bradley, Arant, Rose & Lee University and the University of the American Bar Association. Harris & White has established an endowed AlabamaSc hool of Law. will serve two years, representing the scholarshipwith the Universityof Alaba· Fifth District, includingSouth Carolina. ma Law School Foundation. The schol More than four weeksafter Hurricane Alabama,Mississippi and North Caroli arship will provide financial assistance Andrew, the area of south Floridais still na. The 33-memberboard meets period to deservingstudents who may not oth· working on basic relief efforts for most ically during the year to oversee man erwise be able to pursue a legal educa of the population. Many of the individu agementand administrationof the ABA. tion. als harmed are law firm employees. a 370,000-member organization and The first student designated to receive Some of these individuals (primarily among the largest voluntaryp rofession money from the scholarship is Lisa Joy staff positions) did not have any insur al associations in the world. Watheyof Milton, Plorida. Wathey is a ance coverageor the coveragei s inade Harris is a past presidentof the Alaba- second-yearstudent at the Universityof quate. 394 / November1992 THEALABAMA LAWYER A disaster relief effort has been estab lished to assist law firm employeeswho RIDI 1VG THE CIRCUITS sufferedlosses from the hurricane. The South Florlda Chapter of the Auoclatlon of Legal Administr a Dale County tors had previouslyformed an IRS des Bar Anoclallon ignated section 509(a)( II or (2) organi Picturedat lhe right are zation for pul'J)Osesof a loc.11charity lhe officersfor 1992-93: lhey supl)Ort.This vehicleallows contri Pruident: bulions Lobe tax-deductible. Ceorge H. Trawick. Ariton If you are in a position lo help a fel Vice-president: low law firm employee, send your check DavidRobinson, Daleville in any amount to: Treasurer. !{en Sheets. Daleville South Florida ALACharity Fund , rnc. Secretary: P.0.13ox11 2031 Stan Carner. Ozark Miami, Florida33 1 l 1·2031. A committee of ALAl aw firm admin istrators will receive applications for Hun tsviUe-Madlson County Bar A$sociatlon assistance and intends to distribute all The followingwere recently elected officersfor 1992-93: funds by Thanksgiving.You will receive l'Tesident: Patrick H. Cra,-es,Jr •. Huntsville a letter which advisesyou of the recipi \1ce-presidtnl and l'Tesident-elect:John OaV1dSnodJ!rass. Huntsville ents. Secretary: DeniseFerguson. Huntsville Any questions regarding this disaster relief fund may be directed to Betsy Treasurer. Elizabe.Lh W. Abel, Huntsville Cohen (president of the South Florida AppointedExecutive Committee M embers: WarneS. 1-lealh, I luntsville Chapter) at (305)854-5900or Carolyn Ernest Poller. I lunlsville Shafer (chair, FloridaCo uncil of ALAI al MiaPuckcll. lluntsville (407)689 -8180. • ·FMl,ly- · -C.-C... .-...~,.di.,, •-.:OoawlOlo\ll .·AcJo---.,;y • -.:oloV)'- °"""1oloQy ...... -oioo, ·---•Gtnet,ISolvr,y .-El-•"*'Ot ·--ll&o\Joo~ •GtNla ·-·go,y• H.-o • CltdlOioO"( • Obsle1nel ·---ilem.,IOloaJ • Dcc.,pc,oml ·--O!Ogy • GynecoloQ,:OncoloQy Mtd- •-tic • Cltd-lt• S• THE AI..ABAMALAWYER November1992 I 395 BUILDINGALABAMA'S COURTHOUSES SHELBY COUNTY COURTHOUSE By SAMUELA. RUMORE,JR. The following continues a history of Alabama's county courthouses /heir origins and some of the people who contributed lo their growth. The Alabama Lawy er plans lo run one county'sstory in each issueof /he mag azine. If you have any photographsof early or presentcourthouses, please for ward them to: Samuel A. Rumore, Jr., Miglionico & Rumore, 1230 Bro,un Marx Tower, Birmingham, Alabama 35203. Shelby County he first Shelby County set Uerswere Kentuckiansand Tennesseans who had ShtdbgC<>1111lg Courthouse, conslrucled in 1854 fought with Andrew Jack- son in Alabamaduring the Creek Indian The first county seat was located al War.After the Battleof HorseshoeBend Shelbyville, approximately 12 miles in 1814, Jackson's forces went home, '1(491,.~T:~ northeast or Montevallo.She lbyville no but many returned later with their fami- longer exists, but this first courthouse 1ies to settle in this beautifu l and SHELBY COUNTY site is within the town limits of present promisingp lace. COURTHOUSE da)•Pelham. Shelby County was named for Isaac 1854•1908 On January 4, 1820 the county paid Orlq:t!bni~~d~8~~1l~~t,y~ l!~~~ly Shelby,a surveyorwho becamea Revo Mcn,.rd tc, Columl>IJI= 1826. flnt courtho.I\' Thomas Amis Rogers S53 for the erec n •=1111._. oodcn hu 11>11!MJlol!l!l!d Oil lhb dl~ . lutionary War hero because or his ~fc:~'~,~~15"'«.~rn;w~;~o'r''?-1111 '~~':ii': tion or a permanent courthouse build· l • tcr rnaj,:,r 01!crt11lo11.-11n 396 / November1992 THEAJ.ABAMA LAWYER ville, Harpersvilleand Lhesurrounding the City of Columbiana acquired the where they allegedly voted ag,,in.Anoth · communities. [t was a close election, structure for its city hall. It served in er report claimedthat a master mechan· but due to its central locatlon in the this capacity until 1976. The building ic from the nearby town of Shelby was county, Columbiawon. has been reJlO\-atedand, in recent )'eal'S, employed to remove the bollom or a A few years later, when Columbia hashoused the county museum. It was number or ballot boxes so that wtes for applied for a post office, city leaders named to the National Register or His Calera could be changed or removed. learned that Alabama already had a toric Places and Is now one of the state's After the air cleared, Columbiana was Columbia, with a post office, declared the winner 3nd located In Henry County. now remained the county seat. in present-dayHouston County, The citizens or Calera did not on the Chattahoochee River. give up. though. In 1901, Shel· Therefore, when its post office by County was represented In was established in 1826, the slate legislature by a Mr. Columbiain ShelbyCounty was Dean in the House of Represen named Columbiana. the new tatives and a Mr. Oliver in the name continuing the tie to Senate. Both men were from ChristopherColumb us. Calera. It appears that a local 1\ frame school building was blll was passed by Lhe Legisla· acquired by the county for the •lure that year to alter the first courlhouse in Columbiana. boundary lines of the town or This llltle structure was not Calera. However, the bill that Intended for long-term use, but the Governor actually signed it served as the county court Into law was radicallydifferent building for 28 years, until from the bill passed on the 1854. floor or the Legislature.Some The first permanentstructure one somehow made a substitu· built as a courthouse was a two· lion, and the bill which the story frame building erected at Governor signed did not alter the town n cost of $2,500. rt had two J!/()/JSh TMEALABAMA LAWYER November 1992 / 397 ized lhat the people of Calera could not When the results were in, Columbiana company, was the son of E.C. Coston, justify U,is action, even if they had been won again. contractor for the 1954 addition. The wronged in the prior election by the Ironically, shortly after U1e election design contract for Lhe slructure was people of Columbiana.1\vo wrongs did victory, Shelby County leaders made awarded to Al Dampier of Dampier and not make a right. plans ror a new courthouse in Associates,Architects and Planners, of The controversy was resolved quite Columbiana. They justified their plans Alabaster. The 20,000-square-foot dramatically. The Constitutional Con on the basis that the new bui lding expansionwas expectedto be completed vention of 1901 was coincidentally would be funded by a bond issue rather by November 1990, when U,e ground meeting during the period of the con than new t3"es. The cornerstone for U,e breaking ceremony took place May l, troversy and it resolved the matter in new building was laid in 1905 and the ]989. the body of the constitution it adopted. buildingwas completed in 1908. This project brought on nearly as Section 41 of U,e Alabama Constitution This structure contains elements much controversy as the courthouse st ill provides that the county seat of from severalarchitectura l styles. It has a removal fight. There were many delays Shelby County will remain at Columbi- modifiedc lassic portico containing four and changes of plans. The project was stopped in order to test the strength of concrete in the existing building. There were weather delays. Judges ordered work to stop when the noise interfered with U,e conduct of their business. The design was changed. There were argu ments over costs, and the county com mission cha nged membership four times during the project. Architect Al Dampier pointed oul to U,isauU,or U1atthe project also had sev eral inherent problems. The new struc ture was to wrap around p0rtions or the existing building. The old courthouse and its annex had six non·aligning floors which had to be linked and then con Artist'srendering ol.1854 Courthouse wllh 1991oddilion.f nected to the new structure. Also.there was a need rornew heating and cooling ana un less It is authorized to be re Roman order Corinthian columns. The equipment for the entire buildin&.and moved by a vote or the people. Thus, marble stonework could be classifiedas the struct ure had to be handicapped Shelby County is the only county in Gothic. An octagonal dome has Renais accessibleas well as brought up to code Alabamato havea constitutional section sance Revival windows. And the basic standards. Finally, over $40,000 was mandating the location of its county plan of the original building could be spent to remove asbestos. seat. Extraordinary grievance.s require considered Greek Revival. The builder The new addition was not completed extraordinaryso lutions! for this structure was B.C. Bynum Con until December 1991. No formal dedica· The Constitution was voted on in a struction Company.The last bonds for tion has yet taken place. No final figures statewide referendum on November 11. U,is building1vere paid off in 1953. on U,e total cost have been released,but 1901. It was ratified by a statew ide During 1954 and 1955. a three-story the published newspaper reports indi majority exceeding 25,000 votes. Ironi annex was added to th is courthouse. cate that more than S4.8 million was cally, though , She lby County voted This building cost $355,000 and the borrowedby the county for the project. against ratification by a majority of contractor was E.C. C-0ston.Martin Lide The design of the new building was l. 706 votes. was U,earchitect. intended to blend with the style of U,e The controversy lingered until Febru By the 1980s an expanded facilitywas old. The original marble stonework ary 1, 1904, when another election took needed. During the intervening years. came from a quarry near Talladega. The place between Calera and Columbiana many dramatic changes had taken place stone this time was obtained from the as the county seat choice. This time, the in Shelby County. The northern part of Georgia Marble Companyand installed election was decided on the merits , U,ecounty had become the fastest grow by the Carner Stone Company. The for avoiding the charges of fraud that had ing area in the state of Alabamaand the mer chocolate-colored dome and cupo surrounded the first election. Calera populationhad mushroomed.Therefore. las were painted a new cream-colored argued its convenience, being located on in 1989 bids were let for U,e renovation shade. The interior design provides a highway as well as a ra ilroad. and expansion of the Shelby County non -pu blic hallways for the use or Columbiana boasted its central location. Courthouse. Originally, a $3.5 million judges, lawyers, court personnel and existing building. pure water and, best contract was awarded to Coston Con prisoners, and U,ere is room ror expan of all, no new taxes to pay off a heavy struct ion Company. Inc. of Birming sion . This courthouse should serve debt for a new courthouse and jail. ham. Kenneth C. Coston. head of the Shelby County well for many years. • 398 / November1992 THEALABAMA LA WYER Delinquent Notice Licensing/Special Membership Dues 1992-93 ALL ALABAMAA 1TORNEYS The dual invoice for licenses or specia l memberships was mailed in mid-September and was to be paid between October 1 and October 31 . If you have not purchased an occupational license or paid special membership dues, you are now delinquent! IN ACTIVEPRIV ATE PRACTICE: Any attorney who engages in the active private practice of law in Alabama is required to purchase the occupationa l license. The practice of law is defined in Section 34·3·6, Code of Alabama, 1975, as amended. (Act #92-600 was passed by the Alabama Legislature and amended Section 40-12-49, Code of Alabama , 1975, effective October 1, 1992.) Occup ati onal Licen se ..... $230 (includes automatic 15 percent late penalty ) NOT IN ACTIVEPRIV ATE PRACTICE: An attorney not engaged In the active private practice of law in Alabama may pay the special membership fee to be a member in good standing . Judges, attorneys general , United States attorneys , district attorneys , etc., who are exempt from licensing by virtue of a position held, qualify for special membership. (Section 34-3·17 & 18, Code of Alabama, 1975, as amended) Specia l Membe rship Dues ..... $100 (penalty not applicable) Direct any que stions to : Alice Jo Hendrix, membership services director , at 1-800-354-6154 {in-state WATS) or {205) 269-1515 Immed iately ! THEA LABAMA LAWYER November1 992 I 399 ENTERTAINMENTLAW: Is There Such An Animal and Could There Be One In Alabama? by GAILC RUMMIEWAS H!NGTON litzg and lamour. high-powered lunches and c.ireers made and broken!Thes e are a few of the many connotations that may come to mind when one thinks or Ameri- ra's entertainment industry. Whetheri t be music. motion picture, television or theater, lawyers have been and will continue to be intric.itelyinvo lved in the overall evolutiono( the entertainment industry. Serving in a variety of roles, from that o( in-house couns£i to outside advisors, entertainment lawyers never go unnoticed since they are often U1ei ndus try's true moversand shakers. However,an often-askedquestion in the legal profession is exactly what is "entertainmentl aw." In his article "DefiningEntertainmen t Law,"4/3 Tha Entertainment and Sports lawyer (1986), MelvinSimensky, a noted NewYork-based enter tainment attorney , acknowledges the notion within the legal profession that entertain ment law is incapable of being de11ned. Yet,he and a colleague attempt to pro vide a definition: Entertainment la1v. as practicedi n the Unit· ed State~. is that body o( principlesgovern- ing activitiesw ithin the entertainment industry in this country. This indus try has fivebranches : movies. televi sion, live theater. music and print publishing. Among these branches are common issues . such as the structure of powerre lationships within the branches; the impor tance of credit or billing; the methods of structuring compensa tion and related issues; creative control and the interests at stake in seeking to obtain or restrict such con trol; the differentmethods by which rights and creative products may be trans ferred;and representations.warranties. and indemnities relating to risks particularlyc harac teristic of the entertainment world. 400 I November1992 TMEALABAMA LA WYER n addressing these Issues, tial stages when key crucial contractual possible for a 16-year-oldin Anytown, entertainment allorneys relationshipsare formed.Legal mistakes U.S.A.to produce a collection of son!!$ must draw upon general during those early years have proved U1al,if typicallyworthwhile, cou ld cap areas o( the law such as con- costly in later years for a number of ture the attention or a record company l racts, business organizations , real noteworthyentertainers. executive. Such initiative, along with estate, tort, copyright,trademark, taxa Prime evidence of the fact that the true talent, is likelyto lead to an offerof tion, and labor relations. However,what state holds potential In the entertain an exclusive recording deal. These distinguishes entertainment lawyers ment ilrea is the number of independent "deals" are often memorializedin con from other membersof the bar is found record production companiesthat have tracts of up Loa I 00 pages or more. ll is in the two advantages they offer their already bl?enlaunched in Alabama.T)IJ)l · generally at this point that the "undis clients • •a thorough knowledgeor the cally headed by either recordingstudio covered talent" will seek, and should internal workings of the entertainment ownersor individualswith closeconnec see!<.the adviceof an attorney. However, industry and an abundance of contacts tions with New York -or L.A.-based beforeaddressing the various contractu In the business."See Comment, Regula al provisions that are typicallyencom tion of Allom,:ys Under California's Tai passed in a recording contract, counsel ant Agencies Ac/: A Taulologlcai lo a music artist must addressa number Approachlo Proleclfng Artists, 80 Calif. ThoughAlabama is not orother issues. L. Rev. 471, 484 (I 992). As Simensky frequentlythought of as Assumingthe artist is a group com notes. "in the world of entertainment prised of several members, the initial law,business, not law,dominates." havingan entertainment task is to draft an agreementamong its Though Alabama is not frequently industry,as more major members.Because of conflictof interest thought of as having an entertainment rules in Lhisstate, as well as In other industry. as more major entertainment entertainmentartists Juris dictions, this Initia l step may artists relocate to the Soulhea$t,il will relocateto the Southeast, involveseveral attorneys. A group agree not be long beforethe influxof industry ment, as they are often called, essentially heavyweightsto the region will be felt it willnot be long beforethe sets forth the form of businessthe group even in this state. Sae Sotto,Major Qm influxof industryheavy will assume in carryingout its affairsin rerl Promoter Mows lo Ci/g's Entertain the music industry.Typically, this will be menl Mecca, AtlantaBusiness Chronicle, weightsto the region either a loan-out corporation or as a July 8, 1991, al 1/\. The outlook looks will be felt evenin partnership. Key issues to be addressed bright when one considers the number in a partnership or shareholder agree o( contributions Alabama has illready this state. ment are divisionof profits,allocation of made to the entertainmentindustry with duties,ownership of the group name and the likes of country musk stars ~1ank leavingmember prov isions. Williams,Jr. and Alabama, and l~ddie record companies, these companiesare A trademarksearch must be conduct· Kendrick,formerly of The Temp/a/ions, scouring the state for undiscovered ed to determine whether the name the and LionelRitchie. Moreover , AlabamaIs music artists. Once found, a period of group is using or has decided to use is full of budding. undiscoveredtalenL If time generallyranging from six months actually available. If so. an application the legalprofession in this state hopes lo Loa year is investedin "developing"their for federal trademark protection should avoid further exportationof what could skills • namelychoosing songs, defining be filedto protect not only the name but be an interesting and worthwhile legal a stage look, and recording a "demo" any logos the group may have adopted. practice, a commitment must be made tape that may include as little as three Obtaining these exclusive rights may to assist undiscoveredartists during the son!!$to a wholealbum. prove a wise movein later yearsof their earlystages of their careers. ll is during An 0\.-erallsurvey of the potential for career.The merchandisingpotential that these early stages that competent legal enlerlainmenl legal work in Alabama lies in a group name is demonstnted by adviceis so vital, for it is during U1eini - within all fivebranches or the entertain the phenomenal marketing dollars ment Industryis beyondthe scopeof this amassedby Lhegroup "New Kids on the Gllil Cru mm l• article. Chancesare g~ter that a musi Block." Washing ton cian will seek the servicesof an Alabama Once these initial matters have been Gail CrummoeWllh attorney beforeany other type of artist. properlyaddressed. the attorney for the lnglon I s a member This 1s especiallytrue when one consid group can tum his or her attention to of the s1a1ebars of ers the foclthat the music businessis no the recordingcontract. While it is true Alabamaand llllnols. She receivedhei law longer centralized in NewYork or Los that entertainment contracts generally degree lrom 1h11Uru Angelesas are the other branchesof the have clauses or provisions unlike any versity of Alabama entertainment industry. Therefore, this other type of contract, they are not as School ol Law whe [ STAT STAT AFFIDAVIT SERVICEAVAILABLE J Court Repo rters 17 Mildred Street HCA! Medkal Utlgatlon Support Team Telephone (813) 579-8054 Montgomery, Alabama 36104 Ft:llherS0u nd CorJ,or.llt Cm.,. Telecopter (8 13) 573- 1333 2 Corpclr.lteCenter llm• Suitt S20 Welilt plta!Cd10 rml•~ )OOrc:, 11~ 264-6433 Clearwater, f1orida34622 402 / November1 992 THE ALABAMA LA\l'YER BREWER AND COLE: ALABAMA CONSTITUTIONALLAW Governor AJbc.i P. Brewer Former Governor Albert P. Brewer Is Ol5tlngulshed Professor of Law and Go,-cmmcm at th< Cumberland School of Law of Samford University. A1 Cumberland, Govcn,or Brcwc:r tcachC$ Alabama Consll1u1.lon2J Law, Law omccPractice and M2nagcmcn1, o.odPro(csslon:11 Rcsponslbllity . He also 1c::1ch<'>undergraduacc courses ln s1a1eand loc2J Government and Al•b•m• Hlscory 21 Sam(ord, Go,..,rnor Brewer Is uniquely quoliflcd 10 write about !be Alabama Constitution His dlstlngul5hcd career in clude5 SCn"'lcras Abb2m2·.tGo,'"ttnor, Ucutcruant Go,..,mor, and Spokcr of the House of lkprcscn12livcs . He ho.sbeen an active member of the Abb•m• S121eBar since 1952,e njoys 20 cx.cellcnc rcpu12tlon os on ab le advocate, and is a frcquenc lccru= •• continuing legal education scmimrs . P rofessor Charles O. Cole Charles D. Cole, Professor of Law 21 the Cumbc rl20d School of Law of Somford Unlvcrshi·. prcsc 111lyteaches Cons1h ueional Law, Civil Procedure and l.cgal Process. He h>.>served on the foculry at Cumberland for over twenty years and ho.sr All orders must be PREPAID. Allow 4-6 week.~for delivery. Ship To: Ntune______Make checks payable to: Bn.,.~r /Cole lexll><•>k Address______Mall order i nd check to: Samford Vnivcr;ity Press Cumberland School orLaw 800 Lw,shore Drive Signature ______Blnninglwn. AL 3S229-1021 HIE J\L<\13Af1AL.AWYER November 1992 I 403 NEGOTIATINGAND LITIGATING ' D D o o _..... D I..... _.J - - SELECTED ISSUES By S. REVELLE GWYNand ALANT. ROGERS INTRODUCTION acquire computer technology with an softwarea re often like other commercial From Charles Babbage'sdesign of his emphasis on acquisition of a computer agreements to purchase equipment (in analytical machine in 1840 lhrough systemfrom hardwareand sonwareven the case of hardwareand some typesof Maurice Wilkes' first stored program dors.• More often than not. softwarei s software) or agreements to obtain the calculator in 1949to presenl-day per U1eiss ue, - and it is here that lawyers assistance or servicesof third parties (in sonal computers.computer networking must also be prepared to adapt existing the case or maintenance or customized and customized software,the computer legal principles or create new ones to sofh,•areproducts) . industry's history has been short while keep pace with the changingtech nology Not surprisingly, a computer contract its growth has been tremendous. Word and industrypractices.2 may contain provisions addressing the processing, technical data analysis, goodsor servicescovered by the agree spread-sheets, inventory control, pro GENERALCONSIDERATIONS ment. consideration,express warran ties duclion and sales reports, communica The parties' economic and business and/or disclaimers of e1 404 I November 1992 THE ALl\8;\MALAWYER SOFTWAREAS A "GOOD" Article2 of the UCC appliesto "trans within the definitionof a "good" in Hardware systemsmeet the definition actions in goods." The UCC defines the UCC. of "goods" under Article 2 of the Uniform goodsas "(a)Uthings (including specially Applying the UCC to computer CommercialCode (lhe "UCC"). Similar manufacturedgoods ) which are movable softwaretransactions offers substan ly. mass-produced or mass-marketed 1tl the time of identincationto the con tial benefits to litigants and the software programs often are treated as lrncL" Software,if viewedstriclly in the courts. The Code offers a uniform goods becauseof the way in which they form of a disc or tape, is a moveable bodyof lawon a wide range of ques are marketed and distributed. However, thing within Article 2, but the physical tions likely to arise in computer where parties negotiate for a specialsoft form of the software Is not the function software disputes: implied war ware design or for specifichardware and ing part of the product since · software· ranties, conse1:1uentialdamages, dis customized software, their expectltions incorporates intangible, Intellectual claimers of liability, the statute of are less easily identified. Is the buyer qualilleslhat could fulloutside the scope limitations.to name a few. bargaining for a specificresult or is he o( Article 2. seeking an assurance that the product The decision in Aduent Systems, Ltd. The importanceof softwareto the will meet a specific level or quality of u. Unisys Corp.. 925 F.2d 670 (3d Cir. commercial world and the advan performance? 1991) is illustrat ive of the trend in tages to be gained by the uniformity 1$so mething so intangibleas comput courts that face this "Intangibility' issue. inherent in the UCCare strong pali er software - a set of mathematical Advent Systems produced software for cy arguments favoring inclusion. Instructions - a "good" for purposes of computers.Unisys. a computer manufac The contraryarguments are not per Article 2? Should computer contracts turer, agreedwith Adventto Jointlymar suasive,and we hold that softwareis lhal include not only hardware,but also ket one of Advent'ssystems, but the rela a "good"within the definition in the customizedsoftware and related training tionship ended with Advent's suit for Code. and documentationservices , fall within breach of contract , fraud and other 925 F.2d at 675-76. uniform rules such as the UCC? These recovery. An issue arose as to whether questions ha,-e not been addressed by the relationship between Advent and As noted in Advent, scholarly arti the AlabamaSupreme Court. but courts Unisyswas one for the sale of goods sub cles urge the inc:lusionof softwareas a In other states haveheld that computer ject to the terms of the stalute of frauds good within the UCC. Both scholars and softwareis a "good" under Article2 and as announced in the UCC.Because the courts have wrestled with comparisons that mixed services/goodscontracts in agreement lacked an express provision between the intangiblequalities of soft lhe computer setting can be considered on quantity, Unisys Insisted that the ware and the intangible characteristics overallas a transactionin goods for pur statute of frauds banned enforcemenL of music 12pes,albums or discs, books, PoSeSo f the UCC.l Advent argued that the agreement's lyric sheets, and even automobiles (i.e-, requirement for services kept it out of the transformationof an intangil>leidea Article2 , i.e., the predominantfeature of into physical form).~ The difficulty a . Revelle Qwyn the agreement was one involving "ser remains in the fact that commercially S Ra'l 1Uo Gwyn Is o vices" and not "goods." Advent also used software is often created or cus gt OdUIIO ol lhe School argued that the software referred to in of Ll'lw ot The Unlvet&rty tomized for the customer, meaning that o1 No,1n Ca,ohn a at the agreement as a "product" was not a the physical form of the software can Cll1pe1 Hill. She cur • "good; but intellectual property within mask an ever-changing.intangible quali rtnlly ti vice-cl\a.v of the ambit of Article2 . ty of the "product." and that softwareas .... Cotpora.'e C<>unsel The Third Circuit concluded that sold. leased or licensed may be difficult s.c,;onol ""' - Sll lt Bar eno a mom· •computer softwareis a good within the lo defineand quantify. t,o, ot tho Business Law UniformCommercial Code. • The Court Although the UCCwas not at issue, Sootlono l tho Amcocan ear A.. oclatloo end II• Comm,neo on TeolU1ology held that the intellectualproperty char the Alabama Supreme Court addressed ln 406 / November 1992 THEALABAMA LAWYER and lhe ease with which softwarecan be CHOICE OF LAW/ copied have lead to reliance on patent CHOICE OF FORUM Prepare closing and copyright laws to protect software. Alabamalaw all ows for the parties to documents in See, e.g., ComputerAssoc. In/'/, Inc. v. choose the law of another slate to gov 15 minutes on Altai, Inc. , 61 U.S.L. W. 2003, 23 ern their rights under a contract, there U.S.P.Q. 2d 1241 (2d Cir., June 22, by allowing choice of law provisions. your PC 1992); Whelan Assoc. Inc. v. Jaslow Ala. Code§ 7-1-105(1) (1975). One must Dentallab. , Inc., 797 l'.2d 1222(3d Cir. be mindful, however, that choice of Compute r-Generated 1986). In the context of acquiring soft forum clauses wilI not be honored by Closing Documents & ware, buyers and sellers should recog Alabama courts, Keelean 11. Central Title Insurance Forms nize that neither the UCCnor the com Bank of the South, 544 So. 2d 153 (Ala. $995 mon law relating to service contracts 1989),although federalco urts in Alaba· protects the economic value that the ma will honor both choice of law and Let Proform help you by creator of softwaremay have under fed choice of forum clauses.See, e.g., Stew performing ALL calculations eral copyright and patent laws. These art v. DeanMichaels Corp .. 716 F. Supp. related to the closing because separatesta tutes may govern rights that 1400 (N. D. Ala. .1989). it automatically reca lculates the parties retain (in the case of the sell For tort claimssuch as fraud,Alabama when any changes are made. er) or receive (in the case of the buyer) law followsthe lex loci delicti rule. An Programmed with slandard to reproduce. distribute, modify, adapt, Alabama court will determine the sub· ALTA title insurance policy further license, or transfer the software stantive rights of an injured party forms and designed with the flexibility to create your own or combine it with other software pro according to U1el aw of the state where forms using WordPerfect grams.8T he question of whether or not the injury occurred. Norris v. Taylor, merge capab ilities. softwareis a ;'good" is distinct from the 460 So. 2d 151 (Ala. 1984).Where an in question of how the software creator jury occurs in a jurisdiction other than • HUD-1 Settlement forms protects the intellectual value of the where the wrongful act or omissiontook • ALTAT ille insurance forms: program. Whether or not the software place, the law of the jurisdiction where commitments and policies performs on the buyer's existing hard the injury was sustained controls. See • Disbursements Summary and ware or new har dware provided by Norris,id . Balance Sheet someone else is a question of perfor In contract actions, Alabamafollows • Buyer's Statement and mance and the parties' expectations of the lex loci conlractus rule, which works Seller"sStatement the quality and quantity of such perfor to resolvesubstantiv e contract issues by • Checks mance, not a question of ownership or the lawof the placewhere the contract is • Substitute 1099S contro l of the intellectual property made, unless the contract is executed • ANYdocuments you create rights. It is also important to distin with a choice of law provision or view using WordPerfect: Deeds , guish between questions of the perfor toward its performance in a different Mortgages, Affidavits. mance of goods (i.e., a disc or tape) and state. See, e.g., Ex parte Owen,437 So. Miscellaneous Lender Forms the information or data that a disc or 2d 476 (Ala. 1983); Camble, Alabama A complete system can include tape contains. In the latter case, the law of Damages§ l -6 at p.6. The practi Trust Accounting, Title Plant content (i.e.. lhe data or information) of tioner should be mindful. however, that Indexing, and 1099 Reporting. the disc or tape may be of paramount the rule of lex fori may operate to con Order today and join over 500 importance to the buyer. and applying trol the remedyfor the enforcement of a satisfied customers nationwide . Use Preform for 30 days and if Article2 or product liability standardsof c-0ntract.See, e.g. , Fleming11 . PanAmer not completely satisfied, liability may be inappropriate.9 ican Fire& CasuallyCo., 495 F'.2d535 SoftPro will give you a full Courts generally will interpret hard (5th Cir. 1974); Ex parte Owen,437 So. refund. Preform is IBM-PC ware contracts against Article 2 of the 2d 476 (Ala.1983). compatible and supports most UCCand its full array of commercially laser and impact printers. acceptedwarranties , remediesand other CONTRACTUALLI MITATION provisions. In the case of customized OF DAMAGES To order, or for more information. Ci,111us today. software, reliance on Article 2 may be Buyers who approach the acquisition less certain, and the body of case law (or or computer systemswith a clear under common law) that has evolved around standingof what they want and the level So FTP RO service contracts may be determi na at which the seller should perform en Corporation tive. IO To the extent that such cus hance their chances of reaching an P.O. Box31485 tomiz.ed software agreements also may acceptablecontract. Sellers who under Raleigh. NC 27622 addressthe ownership of softwaredesign stand the consequencesof allowing the or hardware design features, the federal contract to be characterized as one for (800)848-0 143 • (919) 848-0143 laws relating to copyrights and patents goods or services or even one in which and the common law relating to trade the goods and service elements are co secrets may be relevant. mingled can more realistically define THEALABAMA L<\WYER November1992 I 407 Lheir performancee xpect.1Llons. agree to the exoneration clause and a business or a lyp~ genera lly Courtsgive commercialcontracts (and lplalntiff) cannot no"' be heard to thoughl suitable for public regula Lheparties· intenlions that those agree say thal its agreement was against tion: publicpolicy. ments embody) substantial deference, a party seekingexculpation tha l is particularl)'Lhose invo lving sophisticat Id. at 48. engaged in performinlla service or ed businesses.I I For e,cample.Alabama The courl in liberty Financialwent on great importanceto lhe public: law permits contractual exclusions or to discuss the value of the performance consequentialand special damages.&v, o( the contract as a correct measure of such a party that holds itself out e.g.. Ke,medy Eleclric Co. 11. Moore damages. as opp0sed to consequenlial as willingto perform lhis service for Hand/ey. Inc.. 437 So. 2d 76. 81 (Ala. damages.The court's approach is rein any memberof the publicwho seeks 19831. Limitation or liability provisions forced by UCC § 2-715 and § 2-719. it; which refer to consequential damages, alsoare routinely enforced by courts in such a party that J)O$Sl!ssesa deci data processing-related contacts. See. while § 719(3) allows the limiration or sive advantage or bargain ing e.g.. FarrisEnginearing Corp. u. Sm•tc:e exclusion of consequenlial damages. strength; Bureau Corp.. 276 F. Supp. 643 (O.NJ. Section 719!1I also permits limitations 1967), alTinned 406 F .2d 519 (3d Cir. on the remediessought - for e,cample, such a party that confronts the 19691.It has bten argued that an>'lhing limiting the buyer's remedies to repair public with a standardiied conlract beyond lhe amounts paid or exchanged and replacement. of adhesion or exculpation which under lhe contract arc consequential /\lthough the distinctionbetween limi does not allow purchaser lo pay an damages. In liberty FinancialManage tation of liabilityprovisions and exculpa additional fee to obtain protectlon ment Corp.u. BeneficialDo/a Proce5sing tory clauses may not be clear, the basic against negligence:and Corp., 670 S.W.2d 40 (Mo. CL. /\pp. ru le in /\labama is that exculpatory as a result of the transaction. the 19841, U1ecourt noted as followsin Lhe clauses affecting the public interest are person or propertyor the purchaser invalid.The AlabamaSup reme Court has conlexlor a data processingcontncl: is placed under the control or Lhe identifiedsix criteria that must be met in Relalively minor errors (by the seller and thereby is subject to the order for an exculpatory clause to be data processor! nt nny stage in the risk of carelessnessby the seller or declared invalid as contrary to public iLsage nt process could have major conse policy; lhe cla use must conce rn or quences ... IPlainlifflco uld and did involve: Morgcmu. Sou//1Ce ntral Bell Tel. Co., 466 So. 2d 107 (Ala. 1985) (llabillty or telephone company was limited to amount or charges for its odve1·tising where the plaintiff claimed thal ils list Don't Risk A Valuation ing in the YellowPages had been negli genllyo mitted). Penalty. Introduce The criteria set forth in the Morgan case limit Lhe scope or the traditional rule in Alabamaannounced by the Alaba, Your Clients to Business ma Supreme Court in I978: Valuation Services. Our conclusion is based on the gener.,Irule in this state that a party John H. D.wb Lil, PhD, MAI. SRPA, ASA, presidencofBusiness may not contract against the conse ValuarionServica Inc., is the only dcsignat~' 408 / November 1992 Tl IE ALABAMALAWYER 1991-92BAR DIRECTORIES Extra Copies $15.00 Each Send checkor moneyo rder to: AlabamaState Bar Directory P.O. Box4156 , Montgomery, Alabama36101 r------, ADDRESS CHANGES Completethe Cormbelow ON LYif there are anychanges to )'Ourlisting in the currentAlabama Bar Dire.cloYJI. Due Lochanges in the statute governingelection of bar commissioners,we now are required to use members' office addresses.un less none Is available or a member is prohibited from receivings tate bar mail at the office.Addi tionally, theAlabama Bar Directoryis compiled fromour mailinglist and it is importantto use businessaddresses for that reason. NOTE:tf wedo not knowof a change in address,we cannot make the necessarychanges on our records,so pleasenotify us when your addresschanges. __ __ Member Identification (Social Security)N umber Chooseone: r Mr. Mrs. LI Hon. r Miss Ms. IOther ___ _ FullName------Business Phone Number ______ Race______Sex______Birthdate______YearofAdmission______ Pirm ______ OfficeMailing Address ______ City______State __ ZIPCode ______Councy______ omce Street Address(i f differentfrom mailing address>------ Councy______Cit>•------State __ ZIP Code______L------~ THEALABAMA LAWYER November1992 / 409 puter system may claim substantial 4194 (July 1992). distinctlonsbetween fraud in a commer impacton its business,so that the value In many computer contract disputes, cial setting as compared to individual of the computer system - from the absent personalinjury or propertydam consumer transactions. Where fraud buyer's standpoint - becomes more age, product liability theories also will allegations are mixed with breach of than the contractualamount paid to the fail. TheAlabama Extended Manufactur contract theories. however.the practi· seller. Limitationof liabilityand exculpa er's LiabilityDoctrine does not apply to lioner should also consider the recent tory clauses therefore are an important product defectsthat result in damageto decisionin liberty Nat 'I Ins. Co.v. Jack means o( reaching early agreement the product as opposed to injury or son, 1992 West/aw 192755 (Ala. July betweenbuyer and seller as to the legal damageto persons or other things. See, 1992)in which the Court addressedthe effector performanceproblems. Lloyd Wood Cool Co. u. Clark Equip. interplay between these theories of Co., 543 So. 2d 671 (Ala. 1989); Well· recovery. CAUSESOF ACTION crafi Marine v. Zarwur, 577 So. 2d 414 Even though the UCCmay apply to (Ala. 1990). Because product liability PRACTICALCONSIDERATIONS the sale, leaseor licenseor software,t he theories are intended for other contexts, IN NEGOTIATION provisionor UCC§ 1-203 (as adopted in the contractual or warranty theories, The scope or size of the contract or Alabama), which provides that all con such as warranties o( merchantability project can determine Lhe degree lo tracts carry with them an obllgationof (UCCl 2-314) and fitness ror a particu which either the buyer or seller is con good faith. does not create a substantive lar purpose (UCC§ 2-315},may be con cerned about craning an agreementthat cause of action in tort and does not sup sideredby some as more appropriatefor reflects their true objectives. Off-the port a claim in conlracL In Alabama, the computercontract setting. shelfpurchases o( pre-packagedsoftware UCC§ 1-203 is directive rather than One tort theory that does arise in this or individual hardware or integrated remedial. COIH!mmentSt. Lumber Co. selling is fraud and misrepresentation, hardware systems may be subject to o. AmSouth Bank N.rl .. 553 So. 2d 68, oflentimes centering on the initial Article2 or the UCC.The buyer is pur· 72 (Ala.1989). Alabama courts have rou negotiations. The Alabama fraud chasing an item (or good) that meets tinely limited the "bad faith" cause of statutes found at Alabama Code § 6-5- certain performancecriteria: the seller acllon lo the insurancecontext, so that 100.et seq.. ( 1975)seem to have had a may not be responsible for training breach or n computercontract docs not revival In recent years, and some have employees,prov iding up-grades or ser give rise to an action for badraith . !Ake viewedthe debate over the "justtriable vicing or assuring compatibility with Martinu. Alabama PowerCo., 26 A.B.R. reliance"standard as also creating new existing equipment or software. In this context.it is easy for a "battle of forms" lo occur. ]( the parties do not read the fine print and understandwhat has been said or written as additional terms or counteroffers,each is likelyto find that some crucial part of its form is not in the finalagreement. 1991-92BAR In larger projects, a buyer may devel op its own specificationsor use a con sultant to prepare a request for proposal or adopt performancecrite ria to assure DIRECTORIESthat Its commercial needs are met by the seller and the proposedexpe nditure justified. The greater the expertise demonSLrated by lhe buyer (or its con sultant), the less likelyt he seller will be ExtraCopies $15.00 Each to accept responsibility for the selection o( equipmentor the softwaredesign fea tures. Similarly,sellers may be reluctant Send check or moneyorder lo to assume that a buyer will have an ade quately trained work force or that a Alabama State Bar Directory bu)'Cr's internal procedures(which may be crucial to the success of the equip ment or program operation) will be P.O.B ox 4156 implementedor observed.These issues may be magnified when hardware is Montgomery, Alabama 36101 being purchased from "Seller A" and softwareis being purcha,sedfrom "Seller B." The buyer may expecteac h seller to provide a defoct-free product that can be 410 I November1992 THE ALABAMA LAWYER fully integrated with lhe other, as well construed as having shifted lhe burden accuracyfor the number or type of tasks as a solution to its business problem. to the bU)'erof assuring that the equip needed, with tht amount of user or Eachseller, however,may be conumed ment or software is without defect.12 employeetraining or in some other way only in meeting its limited obligation to How much testing is "substantial test that lhe buyerexpected)3 provide hardware or software and may ing" may best be determined in light of While disclaimers of warranties for not be willing to assume responsibility the parties overall commercialgoals as performance may be appropriate with for the co~quences of the entire oper evidencedby the contract. If the buyer is respect to unintentional or ordinary ation of the computersystem. acquiring a tool (whether hardware or defects, such disclaimers should not In addition to describing the subject mass-marketedsoftware), minimal test apply to intentionaldefects that a.renot of the contract, the agreemen t may ing may be appropriate. On the other inserted for the purpose of providing specify the standard or quality of perfor hand, an Integrated hardwareand soft security against infringement or nbuse man~ (e.g.,fitness for a particular pur ware system that is spi!ciallydeveloped of intellectual property rights (such as pose, merchantability,amount of train to handle the buyu's tasks may require prohibited copying or modification). ing. type of documentation,or manuals phasesof testing. The buyer may not be in a position to to be supplied)that the parties expecL lf The computer industry has grown identifyso-called "co mputer viruses" or specifications or a request for proposal accustomedto limitingo seller's liability to knowt he history or "chain of Ulle"of describe the software, hardware or ser for performance,especially t he perfor a softwareprogram. The seller may have vices to be provided under the contract, mance of software.Unless an agreement access to information that allows it to these should be Included in the agree expresslyprovides that specificresp0nse repre.sent and warrant that the seller ment. If they are developedprior to or limes (that is, lhe lime required to exe knowsof no intentionaldefects or virus apart from the contract, one or more cute a task) or other activities or fea es that could result in a malfunctionof barriers may prevent their use as a stan tures are the essence of the bargain. it the softwareor other parts of the com dard for performance (e.g., an In tegra can be somewhat difficult to establish puter system.14 In some instances, it tlon clause in the contract, the parol later that the software (or hardware) may be appropriateto expandthe scope evidencerule or the statute of frauds). must function abovea minimum stan of such a representationand warrantylo In addition,these collateralor addition dard. A buyer may be required to accept include the computer systems of third al writings may not meet the Article2 and pay for softwareor equipmentthat parties from or to which the virus may test for treatment as a "consistentaddi does not perform (for the buyer's pur foreseeablybe transmitted. tional term." poses) in the time, with the degree of The seller's familiarity with the soft- Equally important Is an agreementon how defects wili be cured or otherwise handled. The method for handling defects is directly related lo how the parties viewlhelr bargainor, put anolh er way, their expectations. If the buyer is For more than seventy years Levy's merely acquiring goodso r tools lo solve a problem, the usual Article 2 rules has served the Soucheast as a regarding acceptance, payment and rejection may be adequate.On the other purchaserand broker of estate jewelry. hand, the buyer may be acquiring a We provideeva luation, appraisal and complete packageof goods and activities needed to solve n problem. ln this event, liquidation of fine jewelryestates . hardware that is not compatible with existing equipment, softwarethat does Pleasecall our estate je-.velryspecia lists not performwithin the design specifica tions or other similar problems may Charles L. Denaburg or JaredNadler leave the buyer with worthless equip for a confidential consultation. ment (at least in terms of the contract), an unfinished project and substantial 205~251-3381 businesslosses. If a seller is to ha~'t an opp0rtunityto cure a defect,the parties should have a ,t~ JEWELRY, INC. clear understa nding of how these adjustments will affect the buyer's cost 21162 nd Ave. North• Birmin gham , Alabama and rights to pursue other remedies,its ll<'dla u c'Clto th• Senitt StJ>nclardso r our Family Sine• 1922 ability to revoke any prior acceptance and its opportunities to demand reci sion. A contract that requires substan tial testing prior to acceptance may be THE ALABAMALAWYE R November1992 / 4 11 ware and hardware also may make it pushing along the dispute. An ongoing. computer consulting firms. Also, responsible for any third-party claim evolvingpro ject can leaveproblem areas consider whether an industry spe that the buyer's use or operation of the poorly documented or researched from cific expert is needed, that is, one hardware or softwarein the form deliv the standpoint of the litigants who later who is technically familiar with ered by the seller infringes on U1erights join issue. The followingis a brief out the computer issues involved, as or others. The se.ller may be in the best line of useful steps: well as the industry application in position to know (or find out) whether 1. Witnesses - Identify and, as soon your particular case. Alsoconsider Infringement claims are likely. While a as possible, interview vendor and any individuals or companies that buyer may require a seller to defendand customer project managers, ven perform computer out-sourcing save the buyer harmless from any dam dor programmers, customer end responsibilities in that particular ages and expenses incurred in the litiga users and outside consultants industry. tion or settlement or an infringement involved. claim, the seller also may require the 2. Documents - Identify and, where INSURANCECOVERAGE right to obtain a license lo use the soft possible, secure vendor's initial Typical general liability policies of ware or hardware that is alleged to have and revised specificationsand any insurance may not be triggered in con been infringed or to provide the buyer proposedspecifications or require tractual/warranty disputes over a com with a suitable replacement in order to ments authored by customer; con puter contract. With claims flowing limit the seller·s total expenditure for tract and all related addenda and between the vendor and the customer. the claim. correspondence; vendor's and cus all parties nevertheless should place tomer's project outlines; vendor appropriate carriers on notice. particu· PRACTICALCONSIDERATIONS and customer project logs; vendor larly if more custom ized errors and IN LITIGATION source code; vendor-. customer omissions polices are involved. If tort Where hardware and software have or consultant-authored flowcharts claims are included, general liability been partially or totally installed, both and user instruc tions; and user policies may be triggered under certain customer and vendor must quickly iso logs. circums tances . See, e.g., Universal late the problem areas if a dispute has UnderwritersIns. u. l'oungblood, 549 3. Experts • l'here are many academ arisen. General dissatisfaction on the So. 2d 76 (Ala. 1989) (claims of negli ic and industry experts, including part of either si.de is a poor basis for gent or reckless fraud may fall within insurancecoverage). ALTERNATIVEDISPUTE RESOLUTION Disputes involving computer con tracts, because of the possiblecomp lexi ty or the issues, lend themselves to alter· LANDTECH86 native forms of resolution. Alabama Real Estate Settlement System c-0urtscannot specificallyenforce agree ments to arbitrate unless those agree For Laseror Matrix Printers ments involveinterstat e commerce.The public policy or this state encourages arbitration, but AlabamaCode § 8-1-41 • HUD 1 Automatic Calculations stales that an agreement Losubmit a • Checks & Escrow Accounting controversy to arbitration "cannot be • Word Processor - Spell 01eck specificallye nforced." If the contract is Policies & Commitments one invoh•ing interstate commerce, however, and the contract contains an Deeds & Mortgages arbitration agreement voluntarily • Data Base Repo rting (SQL) entered into by the parties, the Pederal • On Site Training Available Arbitration Act may preempt the Alaba· ma statutory prohibition. fl. L. Fuller $1,495.00 Constr.u. fndustrialDev . Bd. of Vincent, 590 So. 2d 218 (Ala.1 991) (also see 26 A.B.R.321). Alabama's approach to arbitration is LANDTECH one that promotes amicab le settle CORPORATION (407) 833-0454 ments, but avoids agreements made in advanceto defeat the jurisdiction of our 303Guaranty Building• 120South Olive Avenue • West l'alrn Beach, FL33401 local courts. Until recently, there was a question of the amount or levelof inter- 412 / November1992 THE ALABAMALAWYER state comme~cethat must be involved has set up a voluntarymediation process independent technical expert. The rules in a contract beforean arbitration provi (or computer hardwareand softwaredis were adapted from the regular media sion could be enforced.The pretmption putes. The computer mediation project tion rules of the American Arbitration of the Federal ArbitrationAct is depen offers specially trained mediators with Association. At present, Alabamadoes dent on whether the contract involves backgrounds in computer litigation, not have an equivalentlo Florida"scom interstate commerce. Must the connec along with a set of mediation rules puter mediation project. Information tion betweenthe contract and interstate adapted for computer-related disputes. aboutthe Florida effort can be obtained commerce be substantial. moderate or The mediator is authorized to hire an from the authors or this article. • slight? In 1989, the AlabamaSupreme Court required that the parties to the contract have "contemplated substantial ENDNOTES interstate activity" before a pre-suit This dtscusslondoel noi anemptto consider tecMDICgy1'811$1 lions (II g r"""""9 crunsaellDnSsea.red by ccilalaral c:ompnsed ol oopy,,ghts01 pa1e,,ca ., arbitration agreement could be sottwaieor hltct...atec, tectrdogy '1M1Bd ·-a1ino software· thel 8llo>Ys~ IO run Special sask01 se>eatled•appl1cal""1 software" (e g word p<<> In 1986, the Alabama Supreme Court cess,ng,Sl) THEALABAMA LAWYER November1 992/ 413 OPPORTUNITIES The followingprograms have beenapproved bv the AlabamaNandatorv Continuing legal Education Commissionfo r Cl£ credit. For inlormatlonregarding other {1J)(li/ableapproood progra111$, con/ad Diane Weldon, adminislraliooassistant for pro grams, at (20~ 269-1515,and a compleieCLE calendar will be moiled lo you. FRAUDLITIGAT ION • ARGUINGDAMAGES INALABAMA Birmingham.C ivic Center Montgomery AlabamaBar Institute for CLE National Business Institute, Inc. ALABAMASALE S ANDUSE TAX Credits:6 .0 Credits: 6.0 Cost:$128 F'ORMANUFACTURERS (800)627 -6514 (715)835 -7909 Birmingham NationalBusiness Institute. In c. BASICS OF BANKRUPTCY AUTOMOBILE LITIGATION(VlD EO) Credits:6.0 Cost: SJ28 Birmingham, CivicCenter Dothan,Holiday I nn West (715) 83S.7909 AlabamaBar Institute for CLE CumberlandInstitute for CLE Credits: 6.0 Credits:3.0 TORTS(VIDEO ) (800) 627-6514 (800) 888-7454 Sheffield,Ramada Inn AlabamaBar Institutefor CLE FRAUDLITIGATION IN ALABAMA Credits:6.0 Mobile BASICBANKRUP1'CY (800)627 •6514 NationalBusiness Institute. Inc. INALABAMA Credits:6.0 Cost:S 128 Mobile TORTS(VIDEO) (715) 835-7909 National13usiness In stitute, Inc. Dothan,R amada Inn WORl{ERS' COMPENSATION Credits: 6.0 Cost:$128 AlabamaBar lnslilute for CLE (715)835 -7909 Credits:6.0 INALABAMA (800)627 -6514 Birmingham NationalBusiness I nstitute, Inc. Credits:6.0 Cost:S128 BASICBANKRUPTCY IN ALABAMA (715) 835· 7909 Montgomer)I CRIMINALLAW PRACTICE NationalBusiness Institute. Inc. INALABAMA Credits: 6.0 Cost:S 128 Birmingham,Civic Center ARGUINGDAMAGES (715) 835-7909 AlabamaBar Institutefor CLE Montgomer)I.Civic Center Credits:6.0 AlabamaBar Institute for CLE CURRENTISSUES IN (800) 627,6514 Credits:6.0 COVERNMt:NTCONTRACTING (800)627-6514 INALABAMA BUSINESSTORTS ANO ANTITRUST Huntsville Birmingham,Tutwiler M otel BANKRUPTCY National BusinessIn stitute, Inc. Cumberland lnslitute for CLE Birmingham. CivicCen ter Credits:6.0 Cost: Sl 28 Credits: 6.0 Alabama BarIn stitute for CLE (7 t5) 835. 7909 (800)888 -7454 Credits: 6.0 (800)627 -6514 COMPLYINGWITH THE AMERJCANS WRITINGFOR LAWYERS ALABAMAUl'OATE WITHD ISABILITIESACT (VIDEO) Birmingham.Hoover Complex Huntsville,Civic Center Gadsden CumberlandInstitute for CLE AlabamaBar Institute for CLE Cu111MrlandInstitute for CLE Credits:6.0 Credits: 6.0 CrNits:3.0 (800)888-1454 (800) 627-6514 (800) 888-7454 COMPLYINGWITH THE AMER ICANS PRACTICALPROBLEMS IN AUTOMOBILE LITIGATION(VIDEO) WITliDISABILIT IESACT (VIDEO) PROFESSIONALRESPONSIBILITY Gadsden Dothan Montgomer)I,Clarion Riverfront inn Cumberland Institutefor CLE Cumberland Institute for CLE Cumberland Institute for CLE Credits: 3.0 Credits:3.0 Credits:12.0 (800)888 -7454 (800)888 •7454 (800) 888•7454 414 / November1992 THE ALABAMALAWYER CURRENTISSUES IN ALABAMAUPDATE RULESOF PROFESSIONAL GOVERNMENTCON TRACTING Montgomery, CivicCen ter CONDUCT INALABAMA AlabamaBar Institute, Inc. Montgomery.Madison H otel Birmingham Credits:6.0 AlabamaBar Institute for CLE NationalBusiness Institute, Inc. (800) 627-65 14 Credits:12.0 Credits:6.0 Cost:SJ28 (800) 627-6514 (715)835 •7909 EVIDENCE ESTATEPLANN JNC MALPRACTICEAVOIDANCE Birmingham, CivicCenter Birmingham. FORTHE '90s AlabamaBar Institute, Inc. PickwickConference Center Birmingham,Boutwell Auditorium Credits:6.0 AlabamaBar Institute for CLE Attorneys Insurance Mutual (800)627 -6514 Credits:6.0 of Alnbama (800) 627-6514 Credits:5.5 Cost:S 150 ANATOMYOf' A DIVORCE EVIDENCE(VIDEO) (205) 980,0009 Birmingham,Tutwiler Hotel Birmingham. AmericanAcademy of PickwickConfe rence Center MatrimonialLawyers Alabama Bar Institute for CLE (AlabamaChapter) FEDERALTAX INST ITUTE Credits:6.0 Credil.$: 6.8 Cost:S125 Tuscaloosa,Bryant Conference (800) 627-6514 Center (205) 251-4300 Universityof Alabama INSURANCEu\W UPDATE Credits: 13.3 Mobile (205)348 -6224 PERSONNELLAW UPDATE LormanBusiness Center , Inc. Birmingham,Wynfrey Hotel Credits:3.8 Councilin EducationManagement 1n5J 833-3940 ALABAMA UPDATE Credil$:5.5 Cost:S295 Birmingham,Civic Cente r (415)934-8333 MOTIONPRA CTICE(V IDEO) AlabamaBar Institute for CLE Tuscaloosa.Law Center Credits:6.0 AlabamaBar Institute for CLE (800) 627-6514 TRYINGTHE AUTOMOBILE Credits:6.0 INJURYCASE IN Al.ASAMA (800)627-65 14 PRACTICAL PROBLEMS IN Birmingham PROFESSIONALRESPONSIB ILITY National BusinessI nstitute, Inc. Mobile.Admiral Semmes Credits:6.0 Cost $128 CumberlandInstitute for CLE cns1835-7909 DAMAGES(VIDEO ) Credits: I2.0 Tuscaloosa,Law Center (800)888 · 7454 \YORKERS COMPENSATION Alabama Bar Institute for CLE INALABAMA Credits:6.0 Montgomery (800)627-6514 LormanBusiness Center, Inc. TAXSTRATEGIES FOR TIIE 19905 BASICPRO BA TE INALABAMA Credits:6.0 Cost:$1 15 Montgomery Mobile (715)833-3940 Tax Reduction Institute NationalB usiness Institute, Inc. Seminars,I nc. Credits:6.0 Cost S128 Credits:6.5 Cost:S295 l715) 835-7909 (206)776- 7262 RULESOF PROFESSIONAL CONDUCT Mobile,Ri verview Plaza EVIDENCE (VIDEO) AlabamaBar Institute for CLE Tuscaloosa.Law Cen ter Credits: 12.0 AlabamaBar Institute for CLE (800) 627-6514 Credits:6.0 (800)627-6514 PLANNINGOPP ORTUNTTIESWI TH TRYINGTHE AUTOMOB ILE LIVINGTRUS TS lN ALABAMA INJURYCASE IN ALABAMA BASIC PROBATE INALABAMA Birmingham Huntsville Montgomery NationalBusiness l11$litute, Inc. NationalBusiness Inst itute, Inc. NationalBusiness Institute, Inc. Credits:6.0 Cost:$ I28 Credits:6.0 Cost:S128 Credits:6.0 Cost:SJ28 (715) 835-7909 (715)835-7909 (715)835-7909 THEALABAMA LAWYER November1992 / 415 17 Thu rsday TORTS(VIDEO) 23 Wedne sday RULES OF PROFESSIONAi.. Tuscaloosa.Law Center COMPLYINGWITH THE CONDUCT AlnbamaBar Institute for CLE AMERICANS\VITI I DISABILITIES Huntsville,Civic Center Credits:6.0 ACT(VIDEO) Alnb.imaBa r Institute for CLE (800) 627-6514 Birmingham Credits:12.0 Cumberland lnslilule for CLE (800)627-6514 18 Friday Credits:3.0 ALABAMAUPDATE (800)888-7454 Mobile.Ri.erview Plaza AlabamaBar Institutefor CLE AUTOMOBILELITIGATION (VIDEO) CLE REMINDER Credits:6 .0 Birmingham.Samford Uni.ersity (800) 627-6514 Cumberland Institute(or CLE 1992 CLE Transcripts Credits: 3.0 RUl,ESOr PROFESSIONAL (800)888-7454 willbe mailedon or about CONDUCT December 1, 1992 Birmingham,Civic Center 29 Tues day AlabamaBar Institutefor CLE All CLE credits Credits:12.0 MASTERINGTHE 1993 must be earnedby (800) 627-6514 TAXSEASON- December 31, 1992 AN ANNUAL UPDATE MOTIONPRACTI C8 (VIDEO) Mobile,Ramada In n All CLE transcripts lllrmingham.Civic Center AlabamaSociety of CertifiedPublic must be by received AlabamaBar Institutefor CLE Accountants January 31, 1993 Credits:6.0 Credits:8.0 Cost $155 (800)627-6514 (205) 834-7650 • r------, ADDRESS CHANGES Completethe formbelow ONLY if there are any changeslo your listingin the cumnlAlabama Bar Direclorg. Due to changes in the statute governingelection of bar commissioners,we now are required to use members' office addresses,unless none is availableor a member is prohibitedfrom receivingstale bar mall al the office.Additionally, theAlabama Bar Directoryis compiled fromour mailing listand it is imp0rtantto use businessaddresses for that reason. NOTE:If we do not knowof a change In nddress,we cannot make the necessarychanges on our records, so pleaseno tify us whenyour addresschanges. ------____ Memberldentificat .ion (SocialSecurity) Number Chooseone : J Mr. Mrs. Hon. Miss t.J Ms. 10ther ___ _ l''ull Name------BusinessPhone Number ______Race______Sex______Birthdatt______ Yearof Admission------f'irm------OfnceM ailingAddr ess______City______State_ ZIP Code______County______OfficeStreet Address(if differentfrom mailing address) ______ City______State__ ZTPCode______County______L------~ 416 / NO\'tmber1992 THE ALABAMALAWYER ALABAMA LAWYERS MAKE A CASE FOR THEIR HEALTH INSURANCE PLAN That is the plan,available exclusively to membersof the AlabamaState Bar, their employeesand eligible dependents. This is the plan that has paid millions of dollarsto your peerssince 1963. Don't take chances! Join the plan with the proven record of service, reliabilityand stability.Your participation in this program keeps it strong for everyone. EXCELLENTRATES AVAILABLE Policy Age Premium* Premium** Single 35 $32.00 $40.00 Family 35 $83.00 $108.00 Single 55 $65.50 $80.50 Insured & Spouse 55 $114.50 $145.50 • SSOOOdeductible "S5000 deductible 50/50Coinsurance lo S5000 80/20Coinsurance to $5000 I00% to $2,000,000 100% to $2,000,000 INSURANCESPECIALISTS , INC. ISI 2970 BrandywineRoad , Suite 135-AL Atlanta, Georgia 30341 Telephone: 1-404-458-8801 l-800-241-7753 Pleasesend informationon the Major Medical Policyto: Name______M~ess------City/StalefllP______ BusinessPhone ______ Birthdate______ THE ALABAMALAWYER November1992 / 4 I 7 When Is A Bankruptcy lurking In The Shadows Of A Divorce Case? By HERNDONINGE, lll he "advanced"family l aw practitioner STATUTORYE XEMPTIONS is the target of this article. A more Whllt it is elementary for the divorce practllioner to list and fundamentaldiscussi on of the rela pr~nt detailed e-~denct on each or the assetsand liabililies T for equitable distribution by the divorcejudge, did you know tionship betweendivorce and bankruptcyca n that many of those same assets are simply ignored and set be found in my previousAlabama lawyer asidefor U1edebtor, by category,by a bankruptcyjudge? So do article.' not assume that since the other spouse will be getting sub stantial assets in the divorce,e.g. equity in his residence, equi Eventhe advancedfamily law practitioner ty in his car, half a house o{ furniture, closets full of clothing. does not customarily plan for the conse quencesof DIVORCE his client's judgment of divorcejust in case the other spouse an interest in partnership investments, or ,-ehicles, tools or should file for reliefunder Chapter7 of the equipment in his business. that he has not already planned lo Bankruptcy Act.It is understandablefor the file bankruptcyto try to escape his financialresponsib ilities to divorcepractitioner t o concentrate his pri his rormer wifeowed from the divorce. mary effortstowa rd obtainingadvantageous Every divorce practitioner must understand that in a bankruptcycase, the debtor can claim as exempt from liquida divorceterms, whether by settlement or tion many of those sameassets which he won through negoti trial, to obtain custody,more periodicsup ation in the divorce settlement, or won in the divorce trial, port and more propertysettlement, and to and many or those assets will simply be set aside for the debtor by the bankruptcy court, by category, and not liquidated by pay less of the marital debts. Just as it is easi the bnnkruptcytrustee to pay his creditors. And then. with all er to forgett o plan on how you can actually or his assets exempted by the bankruptcy judge, he can pro collectyour client's divorceawards after the ceed to halll! all of his debts discharged,including al leut any divorce,and to forget to plan the incometax obligation owed to your client which resembles property set tlement from the divorce, and therefore, he will receive only consequences of certain divorcet ransactions, the benefits from both legal proceedings. So as long as the it is easyto forget to plan how a bankruptcy bankruptcy debtor can keep certain assets (see Table 1, page judge might reviewthe same judgment of 419) within the exemptionvaluat .ion limitations. these assets divorcew hich you havewo rked so hard to can be excludedfrom the bankruptcy estate and be kept by an Alabamadebtor instead of being sold to pay to his bankruptcy obtain. creditors. 418 / November1992 THEALABAMA I.AWYER So it should not be assumed that your client's di\lOrceenti· tlements are safe just because the other spouse is to receive TAB.LE1 : ASSET EXEMPTION substantial assets from the divorce. e.g. half of the furniture, VALUATIONLIMITATIONS furnishings. a1ipliances, and personal belongings acquired during the mnrriage,a net equity in his residence of approxi Homesteadof debtor ...... $5,000 2 mately $5,000. or tools and motor vehicles used in his busi (includes mobile home) ness, partnership interests. wearing apparel. burial lots, life insurance proceeds, crops, benefits of an annuity contract, Burialplots ...... 100 perccnt3 and certain bank deposits. He may still file for bankruptcyand Miscellaneous personal property ...... $3,000 4 try to discharge the alimony, child support, property settle of debtor ment and ~ttorney fees awarded to your client in the divorce. And, if the other party to the divorce should mebankruptcy, Necessarywearing apparel of debtor...... 100percent 5 do not think for one minute that all his assets will become Familyportraits or pictures ...... 100 pe_rcent6 part of the bankruptcy estate. to be sold, and the net sales and all books used by debtor proceeds to be divided among his creditors. including your client, his former wife. This will not happenl Proceedsfrom lifeinsu rance policies ...... 100 percent7 Some additional steps the divorce practitioner can take (includes cash surrender value, when he suspects that the other spause's di\lOrceproperty set· loan value and dividends) tlement may fullwithin these exemptions.and his share oi the Crowingor ungathered crops ...... 100percent 8 marital debts exceeds Sl0.000, can be found in my rl/abama Lawver article19. WorkerCompensation benefits ...... 100percent 9 Youshou ld now be alerted thal a skilled bankruptC)'p racti· Partnership property...... A ll10 tioner can strategically orchestrate lhe divorce settlement (exceptpartnership debts) negotiations so under the final divorce terms, his client can receiveonly those assetswhich will be exempt in bankruptcy. VeteransAdministration benefits ...... 100 percent11 planning all along to file for a Chapter 7 bankruptcy after the (including lifeinsurance) divorce is completed. It also should be noted that with clever l'ederal CivilService death benefits...... 100 percent12 bankruptcy counseling by a skllled bankruptcy practitioner. with no unethical conduct on the lawyer's part and no fraudu· Veterans' Croup Lifel nsurance...... 100 percent13 lent transfers on the bankruptcy debtor's part, over 90 per benefitsand Servicemen's cent of all bankruptcy debtors can survive the bankruptcy Group Lire Insurance benefits procedure, without losing any assets al all. So, through Depositsused in U.S.service.men's ...... 100 percent•• bankruptcy,he can likely keep all his assets, and wipe out all savingsinslilulions by servicemen of his debts. including property settlement obligations owed while on permanent duly assignment to his former wire and children. if you do not aggressivelydo outside U.S. your job. ERISAbenelits ...... 100 percent15 B.ANKRUPTCYWARNING SIGNS Tools used personallyby and ...... 100 percent16 TO A DIVORCEPRACTITIONER essential to debtor's business There is generally no predictable profileof a person likely to 17 me for Chapter 7 bankruptcy relief. other than the profileo f a Vehicleu sed by and essential ...... 1 00 percent middle-class or upper middle·class American. Usually,one to debtor's business race of debtor is not more likely to file for bankruptcy relief Cookingutensils. cookingstoves, ...... 100 percentl8 than another, though there are certain nationalities and reli table, tableware.chairs gions that are less likely to file. There are fewer MiddleEast· in actual use by debtor ern and Far 1-:astemde btors filing for bankruptcy relief. There are not many Latin debtors. And lhe work ethics of certain religionsare less likely to file ror relief under the Bankruptcy Codethan others. Generally, the active members of more fun Hemd on Inge, Ill damental religions are less likely to file for bankruptcy reLiei ., because of the peer pressure or the tea.chings of their faith. E,,glJshlrcm "'8 U-Styol..~- !ne So.Ari.- .. ---.-Teniessee. end a ll"N Clogree ff'Ctl'\Cu mberianct Also, upper-class debtors with a high volume income can usu• Scnoofol Law. Ho hat publlihedart lclat In 1'11, ally find other waysou t of their rlnancialp redicament without Alatwnaui.,,.,, 1N1 ABA ·s Thec..-, Lowye, filing for bankruptcy, while debtors who are hourly wage TheABA·s-'$Joumil. F-, earners or have lower incomes find fewer opportunities to - rhe.AIIOOmtFlm/y t.a,,ya, Gn--ol lltn.lyr;,,..""' • .._.,,_ -- Cl .. incur substantial debts, requiring bankruptcy relief. _,,. F.,,.,,,,..,.,,.,He"'•- Cl h Fwnly There are, however, several factors that should set off t.aw- Cl .. """*""Sla:aa.. ..,...... , Sor Associal "" ond tho Mobile CoJniy ea, bankruptcy alarms to the divorce practitioner that the other As&ooaoon. end 111 FffllowIn TheAmat lClln spouse may bea candidate for bankn,ptcy games: Academy ol Mt'" l"- 1l.a wye THE ALABAMALAWVER November1992 / 42 l that this federal statute speclllcallyestablishes a "pre CONCLUSION sumption in favorof granting the relief re;iuestedby the Increasedbankruptcy filings will force divorce practitioners debtor" and therefore a heayYburden or proof is placed to become alert to telltale bankruptcy alarms, and to prepare upon any objecting creditor. ll should also be remem accordingly.As Congressand creative.bankruptcy practitioners beredthat if the entire bankruptcypetition is dismissed, expand the "good deals" available through bankruptcy, more little may be gained by your client. This "offensive" spoils won on the divorce battlefield will be lost through strale.gy may be appropriate in the single asset case, the bankruptcy. Only alert divorcepractice ca n limit these losses.• single debt case, or the case where the debtor fails lo attend bankruptcy proceedings or meetings seeking to Endnote s merely delay the bankruptcy process or to simply "buy 1 'The Relationsh,p Betwooti Dlvo,ca and Bankruptcy" , 51 lime", never intending to complete his bankruptcypro n,. Alabamal.awy,,, 143 (May, 1990) ceeding. 2 §6-ICJ.2, 1975Codeo/A/a0Wn.t Bankruptcy Rule 1017(e) • If your divorce client can 3 § 6-1~ , 1975 Code o/ AIIIIIMII c. 4 § 6- ICJ.6,1975 Code of A/abllma convince the trustee or the bankruptcy court itself to 5 §6-1().6, 1975CodeofA/aOWn.t pursue this remedy, the bankruptcy court can dismiss 6 § 6- 10-6. 1975 Code of Alabama the debtor's bankruptcy petition also for "substantial 7 §§ 6,IQ.l! and 27-14·29 , 1975 Codtfo/ Alabama. abuse". This offensive strategy Is also diCficull to prove, a. § 6-9-41, 1975 Code of Alabama 9 § 25-4-86(b). 1975 Codo al Alabama. especially since the debtor is now preferred in bankrupt 10 § 10.8-72(3). 1975 Co NOTICE Drug Condemnations andForf eitures The Public Defender Commission is presently taking applications Under AlabamaL aw for the position of TUSCALOOSA COUNTY (A Treatise for Criminal and Civil Litigation) PUBLIC DEFENDER . All the Current Law For additional information on Point Order from please contact: JOHNE . MAYS Dan Gibson , President P.O. Box 655 Tuscaloosa County Bar Associat ion Decatur, Alabama 35602 P.O. Box 031522 Tuscaloosa , Alabama 35403 Cost: $25.00 422 / November 1992 THE ALABAMALAWYER RULE VII Rules Governing Admission to the Alabama State Bar Amended May 1, 1992 Admission of Nonresident Attorneys Pro Hae Vice EFFECTIVEOctober 1, 1992 ments of the original appendix to the supremecourt "Any attorney or counselor-at-lawwho is not licensed in order of May 1, 1992. good s1anding to practice law in Alabama, but who is cur APPLICATIONSSHOULD BE OBTAINED FROM rently a member in good standing of the bar of another THE ALABAMA STATE BAR. state, the District of Columbia, or other United States jurisdiction and who is of good moral character and who is 4. Applicant sends original of completed verified applica familiar wi1hth e ethics, principles, practices, customs, and tion to the court or agency wi1hproof of service by mail usages of the legal profession in the State of Alabama, on the Alabama State Bar in accordancewith the may appear as counsel pro hac vice in a particular case Alabama Rules of Civil Procedure. before any court or administrative agency in the State of Alabama upon compliance with this rule." 5. Applicant sends copy of completed verified application and the $1oo filin g fee to the Alabama State Bar. If the PROCEDURESFOR COMPLIANCE courVagencygranted a motion to shorten the time for This is applicable to each applicant for each case. hearing, a copy of the motion should be attached. 1. Applicant associates with an attorney (local counsel) 6. The Alabama State Bar will send a STATEMENTto the who is a member in good standing of the Alabama court, counsel of record (or upon any parties not repre State Bar and maintains his or her principal law office sented by counsel) and the applicant within 21 days (or in this state. The local counsel shall accept joint and shorter if granted by court) before the scheduled hear several responsibility with the foreign attorney in all ing date indicating: matters arising from the particular cause. Number of times in the preceding three (3) years "Before any application is granted, local counsel applicant or any attorney members of applicant's firm must appear as attorney of record in the particular have previously made applicationfo r admission, cause or consent in writing to the association.• including: "In the event local counsel in a particular case is sus a. name of applicant pended or disbarred from the practice of law In the b. date of application State of Alabama, the foreign attorney shall, before c. title of courVagency proceeding further in the pending cause, associate d. cause new local counsel who is in good standing to practice e. whether granted or denied law in the State of Alabama and tile a verified notice ' NO APPLICATION SHALL BE GRANTED BEFORE thereof with the court or administrativeagency of this THIS STATEMENTOF THE ALABAMA STATE BAR state before whom the foreign attorney is appearing." HAS BEEN FILED WITH THE COURT OR AGENCY." 7. CourVagencyissu es an order granting or denying the 2. Local counsel (or applicant) obtains hearing date on applicationand sends order to local counsel. the application for admission from the court or adminis trative body where the cause is to be heard. This step 8. Local counsel sends copy of order to Alabama State isa MUST! Bar. "The notice of hearing shall be given at least 21 days before the time designated for the hearing, unless the PLEASE NOTE: Foreign attorneys now appearing pro court or agency has prescribed a shorter period." hac vice in causes shall conform to these rules in pending proceedings within thirty (30) days following the effective 3. Verified applicationis prepared. APPLICATIONSWILL date of October 1, 1992. BE RETURNEDIF ALL ITEMS ARE NOT COM Any questions should be directed to Alice Jo Hendrix, PLETE. Social Security number of applicant and acer PHV Admissions,Alabama State Bar, P .0 . Box 671, tificate of good standing from the bar where applicant Montgomery, Alabama36 101. Phone (205) 269-1515 or regularly practices have been added to the require- 1· 800-392-5660 (in-state WATS). THE ALABAMALAWYER November19 92I 423 DISCIPLINARYREPORT Disbarment client to appeal a ruling from the county because it had been taken before there • Mobile attorney Ceci l Barlow schoolboard. Monroefai led or refusedto was a finalorder as to child support pay Monroe was disbarredfrom the practice file the appeal or lo perform any other m~nls.Monroe charged the client anoth of law by order of the Supreme Court of servicefor his client. Afterthe client dis er Sl,500 to file a second appeal, but Alabama. effective February 7. 1992. A charged Monroe. Monroe refused Lo failed or refused to file the appeal or total of 20 charges was brought against refund any portion of the fee he had refund any port ion or the fee he was Monroeby the Officeof GeneralCounse l been paid. After the client filed a com paid. The DisciplinaryBoard suspended of the Alabama State Bar. The Disci plaint with the Mobile Counl-y Grievance Monroefor a periodof 45 days. plinary Board of the AlabamaState Bar Committee, Monroe refused to respond ASB 90.{)9,1:In January 1989.Monroe found Monroe guilty on J 7 of the 20 to the complaint.The DisciplinaryBoard was retained to represent a client before chargesand imposedpublic discip line in suspended Monroe from the practice of the Board of Pardon and Parole. There 16 of the charges. Those charges are as law for 91 days. after, Monroe failed to represent the follows: ASB 89-692:Monroe was employedby client before the board and failed or ASB 88-140:Monroe was employedlo a client to me certiorari lo the United refused to take any other action on file a claim against the estate of his States Supreme Court from an adverse behalf of his client or to refund any por client's deceasedbrother . Monroe failed ru ling of the I Ith Circuit Court of tion of the fee he was paid. The Disci or refusedt o file the claim or correspond Appeals.Al the time Monroe accepted plinary Board determined Lhal Monroe with his client. When the client dis employment and charged the client a should receivea public reprimand with charged Monroe and employedanother fee, the deadline for filing a petition for general publication. attorney, Monroe refused to refund the certiorari had run some six weeksearli ASB 90-203: Monroe was given an fee he had been paid for filing the claim. er . Monroe continued Locharge and insurance proceedscheck from a burial The Disciplinary Board determined that receive money from the client with insurance policy by a client to hold, Monroe should receive a public repri promises and representations that he pending an investigation into whether mand with general publication. would obtain relief for her. The Disci the check was for the correct amounL ASB 88-71): In May1986, Monroewas plinary Commission determined that Monroe failed or refused to take any retained to represent a client in a per Monroe should be suspended from the action to determine if the check was in sonal injury case. Thereafter. Monroe practiceof law for a periodof 45 days. the correct amount and subsequently agreed to pay the client's chiropractor ASB 89-7Jl: In March 1988, Monroe lost or misplaced the check. The Disci out of any settlement or judgment pro charged a client Sl,500 to file an appeal plinary Commission determ ined that ceeds. However, when the settlement in a paternity suit. Monroe's brief on Monroe should receive a public repri proceedswe re obtained, Monroerefused appeal consisted of two paragraphs or mand with generalpublication. to pay the doctor. The doctor thereafter argument. The appeal was dismissed ASB 90-272:A client of Monroe'sfiled sued the client and in respondent there a complaint with the Mobile County to, the client paid the outstanding doc GrievanceComm ittee alleging LhatMon tor's bill. Thereafter,Monroe executeda NOTICE roe would charge an excessive fee in a promissory note lo the client for the criminal case. Monroe failed or refused amount of the doctor's bill, plus interest to respond lo the complaint or commu EDWARD LEWIS HOHN , and attorneys·fees, but then subsequent- nic.ate in any way wilh the Grievance ly defaultedo n 1> 426 / November19 92 THEALABAMA LAWYER 1992 BARLEADERSHIP CONFERENCE he fourth annual AlabamaState Bar Leadership Conference was T held September 9, 1992 in the new. but not quite finished, addition and refurbishedfacilities of the state bar headquarters in Montgomery. The con Ferencep rovidesbar leaders from across the slate will, information on the opera tion of the stale bar and allo,as them to meet other leaders of the AlabamaState Bar as well. Approximately70 local bar officers, section officers and slate bar commillet and task force chairs spent the morning listening to speakers describe stale bar operations and pro grams.Following lunch, separate break out sessions were held for each of these local bar pfl'Sidenls and commitltt and section chairs came from around the slate groups. The breakout session for section lo altl!Jld lhct general session. ance Specialisls. Inc., discussed pro grnm ideas for increasing lawyerpartici pation in local bar association. Lynne Kitchens, chair of the Adult Literacy Task Force and Lewis Page, chair of the Task f'orce on Lawyer Mentoring, assist ed by state bar J>residenlC larence Small led the session for committee and task force chairs and discussed what they need to know in order to plan a success ful ~ar. Local bar presidents, section officers and committee and task force chairs who were unable to atund the confer Rober/ Lusk, chair of the law Day ence may obtain a copy of the Bar Lead Alabama Stale Bar President Clarence Commillee, speaking at the morning ership llandbook by writing slate bar M. Small. Jr. welcoming alltmdees to session headquarters. • the 1992 Bar leadership Conference held September .9in the new stale bar facilities leaders led by Karen Bryan, chair of the EnvironmentalI.aw Section, and Olivia J enkin,. chair-elect or the Administra tive Law Section. dealt with ways to incrrase and retain section members. Tom Bryant. chair of the Local Bar Activitiesand Services Committee, and Barl>an Rhodes, Executive Director of the MobileBnr Association.led a break out session for local bar officersdealing with how Lobe a more organized local bar leader. Melinda Waters, director of /(are11Bryan (lefl), chair of the Environme11tal /,aw Section. and Olivia Jenkins, the Alabamn Volunteer Lawyers Pro chair -elect of the Admim'.~tralioe low Section. teadi11gtho aflomoon breakout ses gram and Bill Bass, president of Insur- sion for $eCtion leaders 1'1IE ALABAMA1.AWYER November1992 / 427 A.BourMEMBERS, AMONG FIRMS ABOUT MEMBERS AMONG FIRMS Bank Building. Anniston. Alabama.The mailing address is P.O. Box 848, Annis ton, 36202.Phone (205)236-2543. Patricia W. Cobb St ewart an 1,ynn w. Jinks , m and L. Berna.rd nounces the relocation of her office to Smithart of Jinks & Smithart and 1,ynn Johnston, Barton , Proct.or, Swed 111 Soulh Broad Slreet. Scottsboro. Robertson Jackson announce the for law & Naff announces the relocationof Alabama35768. Phone (205)259-3582. mation of Jinks , Smithart & Jackson . its offices to AmSouth/Harbert Plaza. Officesw ill be located at 219 N. Prairie The new mailing address is 2900 Rufus R. Smith, Jr •. formerly with AmSouth/Harbert Plar.a. 1901 Sixth Farmer , Price, Smith. Hornsby & Street, Union Springs, Alabama (maiUng address is P.O. Box 350, Union Springs Avenue, North. Birmingham. Alabama Weatherford, announces the opening of 35203-2618.Phone (205)322-0616 . his fir m, with offices al 103 S. St. 36089), and A.B. Robertson Building, 1 AndrewsStreet, Dothan,Alabama 36302. Court Square, Clayton,Alabama ( mailing Lange , Simpson, Robinson & The mailing address is P.O. Drawer address is P.O. Box 10. Clayton 36016. Somenrille announces that William A. Phone (205) 738-4225 in Union Springs 6629. Phone (205) 671-7959. Major, Jr. , formerly senior vice-presi and (205)775-3508 in Clayton. dent and general counsel of SONAT, has Wilford J. Lane announces the relo joined the finn at its Birmingham office, cation of his offices lo 1500 Wilmer Michael E. Riddle , formerly state counsel for Chicago and Ticor Title localed at 1700 First Alabama Bank Avenue, Anniston , Alabama 36201. Building, Birmingham, Alabama 35203. Phone (205)238-8353. insurancecompanies, announces thal he has joined Lawyers Title Insurance Algert S. Agricola, Jr. and Jean M. Everette A, Price , Jr. announces Corporation as Alabama area counsel. Seay announce the formation of Agrico· lhat he has returned to the practice of Mis new mailing address is 2200 Wood la & Seay, with offices located at 111 law, effective October 19, 1992, with crest Place, Suite 330. Birmingham, Washington Avenue. Montgomery. offices located at 109 Blacksher Street, Alaban1a 35209. The mailing address is Alabama36104. P hone (205)832-9900. Brewton,A labama 36426. P.O. Box 10766, Birmingham, 35202. Bryan E. Morgan, former executive Christopher H. Griffith , formerly Phone (205)868-1009 o r 868-1000. director of the Officeof ProsecutionSer with Wilson& Day,announces the open Richard Alexander announces that \1ices in Montgomery,is now a full-time ing of his office,localed at 247 S. Eighth Frank L, Thlemonge, m , formerly assistant district attorney for Joel M. Fol Street, Gadsden,A labama 35901. Phone with Shinbaum,Th iemonge & Mowellof mar, district attorney, 12th Judicial Cir· (205)546 ·6977. Montgomery, has become associated cuit. The mailing address is P.O. Box D. William Rooks announces that with the firm of Alexander & Associ I l 02, Enterprise.Alabama 36331. Phone he has completed the LL.M. degree in ates . Officesare located at Suite 2500. (205)347- 1142. environmental law at Tulane University l' irst National Bank Building, Mobile, The Alabama State Employees' and is opening offices al 2026 2nd Alabama36602. Phone (205)438-9002. Associatio n announces that Mark J. Avenue, North. City Federal Building. London, Yancey , Elliott & Williams has become its chief counsel. Suite 900, Birmingham,A labama 35203. Burgess announces the relocation of its He was formerly with the firm of Beasley, Phone (205)25 1-6972. offices to 2001 Park Place. North, Suite Wilson. Allen, Mendelsohn, Jemison & Kathryn McC. Harwood, formerly 1000, Park Place Tower, Birmingham, James. associated with Rosen. Cook, Sledge, Alabama35203. Charles R. Malone , formerly with Davis, Carroll & Jones, announces the William F. Addison , Elizabeth the Tuscaloosa firm of Wooldridge & opening of her offices at 1020 Lurleen Vickers Addison and Shirley Darby Malone, and Herbert Ill. Newell, m, Wallace Boulevard, North, Tuscaloosa, Howell announce the formation of formerly with the Tuscaloosa firm of Alabama 35401.P hone (205)759 -2516. Addison, Addi.son & Howell. and the Tanner & Cuin. have formed Jllalone & Calvin M, Whitesell, Jr. announces relocation of their offices to 1201 Bell Newell. Robert V. Wooldridge will be the opening of his offices, effective Building,207 MontgomeryStreet. Mont of counselto the firm. Officesare located September I, 1992.T he firm's address is gomery, Alabama 36104. Phone (205) at Suite 300, Secor Bank Building, 550 428 S. Perry Street, Montgomery.Alaba· 269-0700. Greensboro Avenue, Tuscaloosa, Alaba ma 36104. Phone (205)834-5999. M. Douglas Ghee announces that ma 35401.Pho ne (205)349-3449. L. Byron Reid announces the open· Bud Turner is no longer associated Joseph L. Dean , Jr . and J. Tutt ing of his offices at 223 N. Midway with the firm, and thal Rod Giddens Barrett announce the formation of Street, Clayton. Alabama 36016. The has joined as a partner. Alsojoining the a partnership under lhe name of Dean mailingaddress is P.O.Box 356, Clayton, firm as an associate is Stanton Class & Barrett , with offices at 457 S. 10th Alabama36016. Phone (205)775-3443. cox. Officesare located at 500 AmSouth Street, Opelika, Alabama 36801. The 428/November 1992 THE ALABAMAI.AWYER mailingaddress is P.O.Box 23 1. Opelika, "'ith Spain, Gillon, Crooms, Blan & Net that Llnd11 T, Timpson has become Alabama36803-0231. Phone (205) 749- tles. has Joined the firm. The mailing associated with the firm. Offices are 2222. address is P.O. Box 16046, Mobile. located at Monroe County Bank Build Lo,h , Br ackin & Flowers Alabama36616. Phone (205)344-5151. ing, Suite 200, Monroeville, Alabama announces the relocation of their offices Rive• & Peter •o n announces lhal 36460. to 209 W.Main Slrttl, Dothan. Alabama Ahrian Davi• 'fyler , formerly a judi Corham & Waldrep announcesthat 36301. Phone (205)792-5157. cia I clerk for lhe Honorable Sharon J amea A. Hoover hasbecome an asso Morrl •, Ha yn es & Ingram LovelaceBlackburn of the U.S. District ciate of the firm. omces are located al announces that as of August l, 1992 Courl, Northern District of Alabama, 2 101 6th Avenue, North, Suite 700, E.C. Hornsby, Jr. has become a mem has become an associate. She is a 1990 Birmingham. Alabama 35203. Phone ber of the firm and J ohn f, Dillon, IV summa cum laudegraduate or Cumber (205)254·32 16. land School of Law. Officesa re located and Jenni e Lee Kelley have joined as Ceorge K, Elbrech t announces lhal at l700 l'inancial Center, 505 N. 20th of counsel. omces are located at 100 s. Robert C. King has become an associ Main St reel, Alexander City, Alabama. Street. Birmingham, Alabama 35203. ate of the firm. Offices are located at Phone (205)328-8 141. The malllng address is P.O. Box 1449, Monroe County Bank Building, Suite AlexanderCity, 35010. Phone (205)329- Schoel, Ogle, B~nlon & Centeno 205, Monroeville , Alabama 36460. 2000. announces that Paul A. Avron has Phone (205) 575-2451. Par•ona & Eberhardt announces becomeassociated with the firm. He is a Barris, Caddell & Shanks that Cl,ydeAlan Blanbmltip , former graduate of Florida Atlantic University announces that J. Noel King has city attorney for the City of Huntsville, and CumberlandSchool of I.aw. Offices become associated with the firm. Offices has become a member or the firm, now an localed al 505 N. 20lh Street, 600 are locatedat 214 Johnston SlreeL S.E.. known as Pan on •, Eberhardt & FinancialCenter. Birmingham,Alabama Decatur, Alabama. The mailing address Blanken sh ip. Offices are located ~t 35203. Phone (205)521 • 7000. is P.O. Box2688. Decatur 35602. Phone AmSouth Center, 200 W. Clin ton Barnett , But i & Lee announces (205)340 -8000. • Avenue, Suite 703, llunl.\ville. Alabama 35801. l'hone (205)533-2 172. Bell Rlchnrd aon announces that John J, Callaha n, Jr. and Michael E. Lee have become members of the firm. ALAB STATE BAR Capouano, Wnmpold, Prestwood & Sanaone announces that Ben Andrew Fu ller , former law c:lerk lo RECENTADMITTEES Judge Sam Taylor of the AlabamaCourt of Criminal Appeals and former staff attorney to JU$liceHenry 8. Steagall. U of the Alabama Supreme Courl. and AUGUST 1992 R,W, Russell have become associated with lhe fim1.Offices are located at 350 Adams Avenue, Montgomery, Alabama 36104: the malllng address is P.O. Box Ernest WilliamBall...... Madison , Alabama 1910.M ontgomery, 36102. Phone (205) 264-6401. DavidHall Carter ...... Rockford, Alaba ma Wll.)'neP. Turner and Terry P. Wil· son, formerly of Turner & Wilson. and William P. Snwyu , formerlyof Weiss Sharon AnneDonaldson ...... Birmingham, Alabama & Sawyer, announce the formalion of Tnmu , Wilson & Sawyer. The mail Anthony NicholasLawrence. m ...... Pascagoula, Mississippi ing address is P .0. Box 98. 428 S. Lawrence Street, Montgomery.Alabama 36101-0098.Phone (205)262-2756 . Sebrena RetonyaMoten ...... Montg omery,Alabama Cecily L. Kaffer and Barry S. Pond, IV announce the formation of TammyDenise M ountain ...... Birmingham, Alabama Kaffer & Pond , with offices at 150 GovernmentStreet. Suite 3003, Mobile, Alabama36602. Phone (205)438-1308. RayCharles Thomason ...... Tuscaloosa, Alabama Pierce , Carr & Alford announces U1at John Char lu S. Pier ce, formerly Tl IF.ALABAMA I.AWYER November 1992/ 429 YOUNG LAWYERS'SECTION By SIDNEY~¥. JACKSON,III, President n order lo have greater aulomntically. The Executive Commit sional district and automatic appoint involvement among young tee '"ill nominate two young lawyersfor ments of an officerof the localaffiliates . lawyers across the state, the the position of treasurer. Any young including Muntsvlllc,Tusc.i loosa. Birm D by-laws of this section are lawyercan be placed on the ballot by a ingham, Montgomery, Mobile, and the being revised. A meeting of the Execu Wire Grn.~sarea . All remaining slots will tive Committee or the Young Lawyers' be appointed by the president. Section was held September25. 1992 to There arc several new restrictions discuss the proposed draft. Once the applying to members of the Executive draft Is approvedby the ExeculiveCom Committee. The most radic.ilchange is mittee, it will be presentedto lhe board that an appointedmember can serve for of bar commissioners sometime this only one three-year term. If a member year. Our Immediate past president. has to drop out or becomes36 1-earsold KeithNorman of Montgomery, appoint· during his or her tenure, a substitute ed Robert Baugh of Birmingham to can be appointed.Currently, there is no head up an implementation committee time limit on lht length of service on to provide a first draft of the by-laws. the ExecutiveCommittee. Assisting Robert are Hal Albritton The dran of the amendedby laws to be of Andalusia. Denise l'erguson of presented to the board of commis· Huntsville. llhonda Pitts of Birming sioners will be printed in its entirely ham, Judson Wells of Mobile. and Nor in upcoming Issues of The Alabam a bert Williams of Montgomery. If lawyer. Sidney W. Jackso n , Ill approved, several striking changes will Pinally. there is a lot to be done dur occur. ing lhe upcomingyear. We will put on One prominent change will be the the bar admissions ceremony for the manner in which the officersare elect petition accompaniedby 25 names sup· summer and winter admittees, stage ed. A statewide mail-out balloting and porting nominalion for the posL Tradi mocktrial competitionsror varioushigh elution of the treasurer's position will tionally,the officershave been electedat schools throughout the state. put on take place in the same manner as the lh, annual mteling of the state bar in se\'eral seminars.mcluding the popular electionof the state bar's officers.This July of each year. SanDestinSeminar in May. providedel may be an expensiveundertaking but Another maior change is the makeup egates lo the AmericanBar Association will provide greater access to the eJec and tenure of the ExecutiveCommittee. annual and semi-annual meetings. coor tion process by the several thousand Currently, the committeeconsists of 24 dinate programswith the local affiliates young lawyerssta tewide.P resently,only members, which include the four elect· who providevarious local services, and the treasurer's position will be contest ed officersand the immediate past presi many, many more activities. Anyone ed, as the other offices (secretary,p resi dent. The proposedchange mandates at who would like to get involved can con dent-e lcct nnd president) will step up least one member from each congres- tact me al (205) 433-3 1:ll. • FACSIMll.b (lOS):m.2116 Traffic Accident Reconstruction ANNA LEE GIATT INA ArrtJa."'1) • UDalE110FAl.A.lt,U,L,\&u:Sl.'JCElfJ'1 ALBER T MEDINA Anna Ltt Gianina. P.C. The Pw.l s.,ldu!g A1 M>gt,olil Oma, Pa,t Sui111218 • 2112 Elcveoth """"" S0<11b Birminglwn, Alllboma)5205 P.O. BOX 240934 MONTGOMERY. ALABAMA 3812a (2()5) m. 7929 Kr~,l'lil Ol • llllrJ1Vl n CW. WISl1.4Vi. ASSI..\TA~CElSCASt PR[P ,'IATI~ ...... ,,, .._._..~~ ...... ~..-..11-- ...... i..- · 430 I NovemberI 992 Tl If; ALABAMALAWYER YLS COMMIITEEAPPO INTMENTS One veryimportant function of the YLSis to providea liaison for the variouscommi ttees of the Alabama State Bar to the section. The committeemem bers for 1992-93and the committees they will serve on are: Frd D. C1'11.Y, Jr. William O. Walt on , ID Steve n A. Martino P.O. Box239 P.O.Box 2069 P.O.Box 66705 Tuskegee.Alabama 36083 Opelika,Alabama 36803 Mobile,Alabama 36660 Accessto Lego/Sen1ires f.1ilitory U111J lawy,.,. Advertising Lee Copeland Laura Crum Wllllem Lewis Cerriaon , Jr. P.O.Box 347 P.O.Box 1 16 2100 South Bridge Parkway Montgomery,A labama36101 Montgomery,Alabama 36101 Suite 650 Bench and Bar Relations Permanmt CodeCommission Birmingham,Alabama 35209 lawyer Nenloring Char les L Anderson Thomu J . Methvin P.O.Box 2189 P.O.Box 4160 Pet er S. Mackey Montgomery.Alabama 36 102-2189 Montgomery,Alabama 36103 P.O.Box 1583 CitizenshipEducalio n PrepaidLega l SeniicasCommission Mobile,Alabama 36633 I.ego/Educolion J . Timo~ Smith Duent Wilso n 2140 Ulh Awnue, South P.O. Box032206 Chrb Coumanla Suite 300 Tuscaloosa.Alabama 35403 P.O.Box 2841 Birmingham.Alabama 35205 ProfessionalEconomics Mobile,Alabama 36652 DisoslerResponse legislolive Mark Newell Barry Ragsdal e P.O.Box 2987 Linda S. Perry P.O.Box 55727 Mobile,Alabama 3660 1 166 GovernmentStreet, Suite 100 Birmingham.Alabama 35255 AltemotiueDispute Resolutian Mobile,Alabama 36602 Ethics Education Mi11orilyParticipaJio11 Robert J. Hedge Amy Slaydw P.O.Box894 Wlllle J. Huntley 407 FranklinStreet Mobile,Alabama 36601 P.O.Drawer 850249 1l untsville, Alabama35801 AppellateCourts Mobile, Alabama 36685 Adu// Literacy Professionalism J ohnny Brutld ewlcs James Edward Smith First NationalBank Building William O. Walton, ID 505 N. 20th Street Mobile,Alabama 36601 P.O.Box 2069 Suite 1100 CorrecJianollnstilutio11.t Opelika,Alabama Birmingham,Alabama 35203 U11authorizedPractiCJ! or law lnd(qen/Defe11Se Joe C. Caasa,ly, Jr . P.O.Box 780 Arthur T. Powell Walffn Laird Enterprise, Alabama 36.131 P.O.Box 844 1801 CoronaAvenue Insurance Mobile,Alabama 36601 Jasper,Alabama 3550 I Commi/tt!t!_an Substance,tbuse Judicial Building James B. Seale, ID inSodeJy P.O.Box241 Judkins M. Bryan Greensboro,Alabama 36744 Howard W. Neiswender P.O.Box 213001 Judicial Selection P.O.Box 032206 Montgomery.A labama3612 1 Tuscaloosa,Ala bama 35403 uuuyer PublicReio/ions Ardtlbald T. Reeve, , IV TaskForce on Speciollzatitm P.O.Boxl23 Ernest F. Woocboo , Jr . Mobile,Alabama 36601 Stephw R. Copeland P.O. Box2821 law /)(ly P.O.Box290 Mobile,Alabama 36652 Mobile,Alabama 36601 local Bar Activities TaskForCJ/ 011 lhe Qualify of Ufe THE ALABAMALA\VYER November1992 / 431 1992 ALABAMA STATE BAR ANNUAL MEETING THURSDAY PhillipE. Adams, Jr., state bar president . .. . RobertL. Steed,All an/a for 1991-92, introduces GilbertR. lawyer, cofum11isl,humorist and Margare t S. Childers,chair of !he Campbell,Jr. , executivedirector o f the the 1992B ench & Bar luncheon Administrativelaw Section,opened TennesseeSlate Bar, who, in tum, speaker. "AdministratilleLaw Update:Recent introduces. .. Decisionsand Discoveryin Admin The 1992 istrativeAgency Proceedings.· Membership Reception was wefl-allended by members and their spouses. Laurie Cline fed the Thursday and Fridayafternoon LEXIS" Training Sessionsfor attorneys. 432 / November1992 THE ALABAMALAWYER FRIDAY Pas/presid(!J'lfs gathered once again far theirannual re,mion/breaklast. Whileattor BruceP. Ely, speaking to the Com neys a/lend· m,micalionslaw Section ed different section programs. spouses boardeda busto/our Bimiing ham's new Kirklin Clinicand hadlund1 al The Club. Production numbersfrom the Summerfe.11 BroamuaySer ies included "K'ismet~ IndiaJohnson, oftheAmerican "Annie"and, at ArbitrationAssociation, and a right, "JOSl!f)h speakerof the Iha afternoon Ple and the Amaz nary Session, "Introductionto Civil ing Technicolor Mediation" Dreamcoal~ TH£AL\l3AMA LAWYER No\oember 1992/ 433 1992 ALABAMA STATE BAR ANNUAL MEETING SATURDAY FormerAlabama Co,,err,{,r Al~ P.!Jreu1Y1r moderales "Alabama - ... Dr. DavidBronner. CEO of the RetirementSystems of Alabama.Dr. William Her Polen/la/and Possibilities'. Muse.pfl!sidenl of Auburn University,and Dr. Philip Austin. chancellorof the fl!llluring. , • Universilyof AlabamaSystem. PresidentAdams, during /he GrandeConvocation, presmts the AlabamaState Bar Awardof Merit ... Robert W. lee, Jr. of Birmingham ••• ThomasBrod Bishopof to Stewn IV.Ford of Tuscaloosa..• and ••. Birmingham. Picturedabooe al the conclusionof 1992Annual Meeting are 1992-93President-elecl James R. ScaleofMonl PresidenlAdams passes the gavel to incomingstale bar gomery,past PresidentPhillip E. Adorns.Jr. of Opelika, presidmt C/aret1ceM. Small, Jr. current Presidl!J'IIClarence M. Small,Jr. of Birmingham. 434 I NovembtrJ 992 THEALABAMA LAWYER Delinquent Notice Licensing/Special Membership Dues 1992-93 ALL ALABAMA ATTORNEYS The dual invoice for licenses or spec ial membersh ips was mailed in mid-September and was to be paid between October 1 and October 31. If you have not purchased an occupat ional license or paid specia l mem bership dues , you are now delinquent! IN ACTIVE PRIVATE PRACTICE: Any attorney who engages in the active private practice of law in Alabama is required to purchase the occu pation al license. The pract ice of law is defined in Section 34-3-6, Code of Alabama, 1975 , as amen ded. (Act #92 -600 was passed by the Alabama Legis lature and amended Section 40-12-49, Code of Alabama , 1975 , effective October 1, 1992.) Occupational License ..... $230 (includes automatic 15 percent late penalty ) NOT IN ACTIVEPRIVATE PRACTICE: An attorney not engaged in the active private practice of law in Alabama may pay the spec ial membersh ip fee to be a member in good standing . Judges , attorneys general , United States attorneys, district attorneys , etc ., who are exempt from licensing by virtue of a position held, qua lify for special membership. (Section 34-3-17 & 18, Code of Alabama , 1975 , as amen ded) Special Mem bership Dues ..... $100 (penalty not appl icable ) Direct any questions to : Alice Jo Hendrix , membership services director , at 1-800-354 -6154 (in-state WATS) or (205) 269-1515 lmmediately l TlI E ALABAMALAWYE R November 1992/ 435 Report of the Task Force on Professionalism INTHE SPIRIT OF PUBLIC SERVICE by KEITH B. NORMAN embers of the legal profes 1. A DEFINITION OF profess ion and our profession a sion have been decrying a PROFESSIONALISM calling in the spirit of public ser diminution of mutual The task force's first recommendation vice. respect, civility and cour was the adoption of a definition of pro To the public and our systems of tesy among lawyers across the nation fessionalism. During our profession's justice, I offer service. 1 will strive for sometime now. Even within the self-examination of its professionalva l to improve the law and our legal ranks or our 01\/nba r. a sense of need to ues in Alabama and elsewhere, discus system. to make the law and our rekindle the spirit of professionalism sion has e\lolvedas to what do we mean legal system available to all, and to has caused the state bar to examine a by "professionalism. " The task force seek the common good through role for it to play in restoring a pride of suggested the followingdefinition: the representation of my clients. service. In 1990, Alabama State Bar The pursuit of the learned art of the President Harold Albritton established a law as a common calling, with a spirit 3. CODE OF PROFESSIONAL task force on professional ism and of service to the public and the client, COURTESY appointed former state bar President undertaken with confidence, integrity BIiiSc ruggs of Port Payne as its chair. and civility. The task force's third recommenda· The Task Poree on Professionalism tion was the adoption of a code of pro· examined the efforts undenvay by other 2 , A LAWYER 'S CREED fessionalcourtesy. olhenvise referred to states, particularly the two-day manda In addition to the Oath of Attorneysas as rules of engagement: tory course for new lawyers in Virginia prescribed by the AlabamaCode, the task l. A lawyer shou ld never knowlingly and the inclusion of professionalismin force's second recommendationwas the deceiveanother lawyer. CLEcourses as required by Georgia and adoptionof the followingc reed: 2. A lawyer must honor promises and several other states. Representatives of To my clients, r offertruthfulness, commitments made Lo another the task force travelled to Virginia and competence , diligence and good lawyer. observed the Virginia State Bar's course judgment. I will strive to represent 3. A lawyershou ld make all reasonable on professionalism and talked with bar you as I would want to be represent efforts to schedu le matte rs wit h leaders. as well as course faculty mem ed and to be worthy of your trust. opposingcou nsel by agreement bers, about their program's operation. To the opposing parties and their 4. A lawyer shou Id maintain a cordial In addition, task force members met counsel, I offer fairness, integrity and respectful relationsh ip with with staff members from Georgia and and civility. I ,viii seek reconciliation opposing counsel. discussed their Commission on Profes· and, if we fail, I will strive lo make 5. A lawyer should seek sanctio ns sionalisrn's plan to raise the profession our dispute a dignified one. against opposing counsel only where al aspirational level of Georgia lawyers required for the protectio n of the To the cou rts , and other tri by using MCLEprofessionalism cours· clie nt and not for mere tactical buna ls, and to those who assist es. Studying these and other efforts advantage. them, I offer respect, candor and convinced the task force that Alabama 6. A lawyer should not make unfounded courtesy. I will stYiveto do honor to lawyers would benefit from a similar accusations of unethical conduct the search forjustice . program. about opposing counsel. Consequently, on April JO, 1992. the To my colleagues in the practice 7. A lawyer should never intentionally task force presented its report lo the of law, I offer concern for your wel embarrass another lawyer and should board of bar commissioners for consid fare. J will strive to make our associ avoid personal criticism of another eration. The report contained six rec ation a professional friendship. lawyer. ommendations to bolster professional· To the profession, I offer assis 8. A lawyer should alwaysbe punctual. ism in Alabama.T hey are set oul below. tance. I will strive to keep the law a 9. A lawyer should seek informal agree 436 / November1992 THE ALABAMALAWYER menl on procedura l and prelimi lawyers should not place them vide seminars at the law schools located nary malters. selves inside the bar in the court in this state on the subject of profes I 0. When each adversary proceeding room unless permission to do so is sionalism. In addition, the task force ends, a laW)lershould shake hands granted by the judge then presid recognized that cooperation with the with the fellow lawyer who repre ing. law schools is necessal)' to implement sents the adversary, and if the 16. A lawye, should stand to address this program and that additionaleduca la\\;u loses. the losing la",yershall the court. be courteous and not en tion in the law schools on the subject of refrain from engaging in any con gage in recrimination with the professionalismand ethics may neces duct whkh engenders disrespectfor courL sarily val)' among the lawschools. the court. the adversaryo r the par 17. During any court proceedi ng, ties. whether in the courtroom or cham 5. COOPERATION WITH 11. A lawyer should recogn ize that bers, a lawyersho uld dress in prop ALABAMA TRIAL JUDGES adversariessho uld communicate to er nltire lo show respect for the The task force's nflh recommenda avoid litigation and remember their court nnd the iaw. tion wns that tria l judg es be more obligation to be courteous to each 18. A lawyer should not become too deeply Involved in both establishing and olhe.r. closely as:sociatedwith the client's monitoring the professional conduct of - lawyersin litigation. 6. MANDATORY PROFES .SION, A LAWYER'SCREED ALISM TRAINING FOR NEW Tomy clients,I offerlrothful11ess, competence, diligence and good j udg LAWYERS ment. I willstrive to representyou as I woulduxml lo be represented The task force's final recommendation and lo be UJOrthgof your lrusl was lhe adoptionof an additionalrule to the MandatoryContinuing Legal Educa Tothe opf)OSing partiesand their counsel,I offerfairness, integrity and tion Rules and Regulations requiring civility.I will seek reconciliationand, if we fail,I wilfs trive to make the completion of an eight-hour course our dispute a dignifiedone. of professionalism by all newlyadmitted Toth e courts,and other tribunals,and to those who assistthem, I offer members of the bar within 12 months of respect, candorand courtesy.I will strive to do honor to the search U1eir admission. forjustice. The board of commissioners accepted 'lo my co!(eagues in the practiceof law, J offerconcern for your welfwe. the task force's report and approved the I willstrive to make our associationa professionalfriendship. aspirationalgoals of the plan for lawyer To the profession,I offerassistance- I will strive to kt>epthe law a pro professionalism as well as mandatory fessionand our professiona callingin the spirit of publicseruice professionalism training. Presently. a To the public and our systems of justice, I offerservice. I will striveto rule is being drafted for considerationby improvethe law and our l2golsystem, to make the law and our the AlabamaSupreme Court requiring mandatory professionalismtraining for legalsystem availableto all,a11d lo seekthe commongood through all newly licensed lawyers. The Ethics Education Committee.among other bar commillees, is curren tly working on plans lo develop a curriculum for the 12. A lawyer should recognize that activities, or emotionally involved mandatory professionalism training ndvocacy does not include harass with the client. course for new lawyers and ideas to ment. 19. A lawyer should always remember enhance professionalism training in the 13. A lawyersho uld recognize that ad thnl the purpose of the practice of slllte's law schools. vocacy does not include needless law is neither an opportun ity to The successof the '!'askForce on Pro delay. make outrageous demands upon fessionalism lies with the Individual 14. A lawyer should be ever mintlful vulnerable opponents nor blind members of the bar. Each of us must that any motion. trial. court appear resistance to a just claim; being make a constructive effort to stop the ance. deposition. pleading or legal stubbornly litigiousfor a plaintiffor declineof professionalism.No amount of technicality costs someone time a defendantis not professional. instruction. pleading or cajoling will and money. work unlesseach of us is willingto make 15_A lawyer should believe that only 4. PROFESSIONALISM a personalcommitment to abide by each attorneys, and not secretaries, par TRAINING IN LAW SCHOOLS element of A l..awyer's Creed and the alegals, investigators or other non The task force's fourth recommenda Codeor ProfessionalCourtesy. Let us all lawyers.sho uld communicate with tion was that ethics education in the law rededicateourselves to the spirit of pub a judge or appear before the judge schools receive greater emphasis and lic service which is the essence of this on subst;mtivc matters. These non- U1ntlh e Alabama St.1te Bar should pro- 1irofessionand make this commitmenL• THEALABAMA J..AWY~; R November19 92 / 437 RECENTDECISIONS By DAVIDB. B)'RNE,JR. and WILBURC. SllBERMAN Nolton. 590 So.2d 918 (Ala. 1991). 208. Inc. and 81 other Morgan County SUPREME COURT OF whereinthe court .said: merchants sought a writ or rnandamus THE UNITED STATES The chnin of custody is composed o( from the Circuit Court of MorganCoun 'links'. A 'link' Is anyone 1~hohandled ty, compelling the district attorney and Chain of cuatody the Item. The State must identify each clerk of lhe Morgan County District mlaalng llnk link from the lime the item was seized. Court to prosecute or allow the prosecu Correll u. State, 26 ABR 4024 (June In order to show a proper chain or cus tion of worthless check cases without 26, 1992). In Carrell,the $Upremecourt tody. the record must show each link requiring,as a condition precedent, that granted certiorari to determine if the and also the following with regard to the merchants execute affidavitsstating State established an unbroken chain of each link's possession of lhe item: (I) that they had not previouslyturned over custodyo( the marijuana introduced into [the) receipt of the item: 12) [the[ ulti the bad checks to a check collection eviden«. In rf'\~rsinglhe court of crimi mate dispositionor the item. i.e., trans agency. nal appeals, the supreme court reaf fer, destruction. or retention; and (3) In an opinion authored by Justice firmed the lime -honored rule that [the) safeguarding and handling of the Houston,the supreme court's analysisof demonstrative evidence will not be item betw~n rtceipt and disposition... the problembeg,,n \\ilh the provisionsof admitted in a criminal trial if the State If the State. or any other proponent o( Article I. Section 20 of the Constitution does not prove an unbroken chain of demonstrativeevidence. fails to identifya of Alabamaof 1901,which states: custodyor the evidence. link or foils to show for the record any That no personsha ll be imprisonedfor DavidThorne, a forensic scientist and one of the three criteria as to each link. debt. the supervisor of drug chemistry at the the result is a 'missing' link. and the Justice Houston's opinion relied in Alabamo Department of f'orensic Sci item is inadmissible. If, however, the part u11on the reJSoningo( Judge Tyson ences Laboratory testif ied thal he Stale has showneach link and has shown o( the Alabama Court of Crimina l receivedthe evidencefrom MarkCruise, all three criteria as to eachlink. but has Appeals In Bullen v. State. 518 So.2d another employee of the departmenL. done so with circumstantialevidence, as 227, 233 (Ala.Crim.App.1987). Bullen Cruisedid not testifyand Carrell object opposed to the direct testimony of the holds that: ed that the chain o( custody was not "link".as to one or more criteria or as to The criminal la1,,MIS not designed to proved. The trial court overruled the one or more links. the result is a 'weak' enforce tht paymentof a debt or to aju objection. link. When the link is 'weal(. a question dicate civil disputes between In ,a,ersing. the supreme court relied of credibility and weight is presented. parties... The mere fallure to pay a debt. upon 11$ 1991 decision in Ex parte not oneof admissibility. whilefurnishing a basis for a civilsuit. is Carrell Is clearly a case o( a missing not sufficientto constitute a crime. The link ,n the chain of custody. Because improper employment of a statute to Dav id 8. there wasno evidenceat all or the id~nti enforcepayment of a debt is an unconsti· errne, Jr. ty o( the person to whom Officer tutional applicationof thal statute. David8. Byrno,Jr is a Williamson had given the marijuana or The Alabama Supreme Court has con g, aduwoot tho Unlver. 1J1Yat Aliit,bama , where the person from whom Cruise received demned the use of threat of prosecution ho IOCGivod bolh h 438 / November1992 Tl IE AIABA!-t<\LAWYER criminal act is lntenL Horrisu. State, slitutionaiityof a prosecutionunder the Following a number or discussions 378 So.2d 257 (Ala.Crim.App.),cert . Worthless Check Act must be deter im'Olvmgdefendants' lawyers and the denied.378 So.2d 263 (Ala.J 979). mined. is often diflicult to ascertain. it district attorney. the parties agreed to Justice Houston's opinion concludes stands to reason that the person in the meet for document inspection. At the with a bright line rule: best posilion to assess the merits of a meeting,the districtattorney produced a In conclusion. we note that upon one's criminal prosecution under that act is large number of documents including convictionof writing a worthlesschec k, the district attorney. (I) virtuallythe entire file of the district lhe low authorizes the requirement of attorney; (2) numerous charts and dia· restitution to U1e\lictim. See il ia. Codi! Criminal dlscovery-t'ight to grams prepared by the Alabama Securi 1975, §15·18-65 el seq. These statutory Inspect docume nts canies ties Commission; and (3) various other provisionsauthorize the requirementof with It right to co py materialscontaine d in the imetill3 tory restitution as an incident to criminal document s filesof the Commission. prosecution: they do not make district State, •. Dog,el of 26 ABR4587 (Juh• Duringthe course of the meebng, the auomeys 'de facto' debt collectors, u 31. 1992).The defendantand three oth lawyers for the defendants examined, the merchants suggest. As previously ers were indicted on charges of securi Indexed and separated those materials stated, it would be an unconstitutional ties fraud. The circuit court, ex mero they wanted to copy. The separatedd oc exerciseof power for districtattorneys to molu, ordered the district attorney lo uments Includeda "large slack" of mate undertake the prosecutionof checkwrit produce to the defendants materials rials containing various charts and dia ers for the purpose of debt expressly discoverable under Alabama grams Loo large to be reproduced al any collection.... B ecause subjective Intent, TemporaryRules of Criminal Procedure, facility in Oneonta. Counsel for the which is the polestar by which the con- 18. defendant offeredto take the materials en 're Its.(ad. \\Ihmyour P'°*!Pk""' higl,[y quaiiG« J, you'n,mer• productive. 11,cbest way to be,rurc yo AIJ thebest f"1,,,.m.Yrt m/;tl'fflJIJh'n J;.""' ,·,... ~ ,;i,""" t·,""'t"'" ''fil~ a,u.,MJ u.,,1,,1 N,,~"''"II' fflllf~., ani11t1.lltr:YAIA,nyMm,•, TliE ALABAMALAWYER November19921 439 lo Birmingham, copy ii over the week ly and intentionally expanded the scope that most jur isdictions refuse to hold end, and return the documents the fol of discovery by opening its files to U1e that the Balson principle is applicable to lowing Monday. The district attorney defendants, the State ca.nnot ret reat gender-based str ikes, and although I refused. within the narrow perimeter of the realize that there is apparent disagree· After successive unsuccessful at · court 's discovery order, or of Rule 18, ment among the United States courts of tempts to obtain copies of the segregat· on which the order was based, in order appeals on the question, I. nevertheless. ed documents, the defendants filed a to prevent reproduction. To do so would believe that my dissenting views in Ex joint motion to compel the State to pro be fundamentally unfair in a case such parte Dysart,581 So.2d 545 (Ala. 1991), duce copies of the documents or lo as this one, in which the defendants can are sound, and that when the issue is allow their reproduction by the defen demonstrate their reasonable and detri· squarely presented to the United States dants. Aftera hearing on the motion and mental reliance on the quasi openness Supreme Court that Court will expand an in camera review of the documents, of the State. the Balson principle to apply lo gender the trial court denied the motion where based strikes in instances '"here men or upon the defendants sought a writ of Gender-based strikes women, as a cogn izab le group , are mandamus to the supreme court. hint of things to come excluded from jury service sole ly In an opinion authored by Justice £x parte Murphy . 26 ABR 2370 because of their sex. Adams, the supreme court granted the (March 20, J 992). Murphy's petition for Justice Maddoxends his opinion with defendants· petition for writ of man writ of certiorar i presen ted a single an interesting twist that should guide damus. issue : whether the court of crim inal the criminal practitioner, as follows: In reversing the trial court, Justice appeals erred in holding that the princi Alabama's policy regarding the right Adamsreasoned: ple of Batson v. Kentucky, 476 U.S. 79 of a person not to be excluded from jury The right to inspect documents con (1986) does not apply to the use of gen service is plain: "Acitizen shall not be temp lated, as a matte r of course, the der -based peremptory strikes. The excluded from jury service in this state attendant right to copy the documents. supreme court. in a per curiam opinion. on account of race, color, religion. sex. See Dixon u. Club, Inc., 408 So. 2d 76. denied the writ by a six-to-three margin. national origin or economic status. Ala. 81 (Ala. 1981). This rule merely recog Justice Hugh Maddox,wh o was joined Cede 1975, §12-16-56. nizes that , as a practical matter . the by Justices Adams and Ingram. sharply 'right to inspect without the concomi dissented and suggested that the princi Defendant's right tant right lo copy 1vouldl bef a meaning ple of Batson does extend to gender to interview State 's less gesture.' Id. Thus, having voluntari- based strikes. Justice Maddox reasoned witnesses that: Nichols v. State, 26 ABR 3470 (May Basecl upon my 22, 1991).T his case presents the issue of read ing of Batson whether the defendant was denied a fair PROBATEBONDS and the cases of tria l by whal he claims effective ly the United Stales amounted to a denial of the right to dis COURTBONDS Supreme Court ex cuss the case, prior to trial, with the ,Adlni_nistrator ' s/ Executor's / Per sonal tending Batson , I State's witnesses. Representati ve's Bonds conclude that Batson Defendantwas indicted for the offense . cuardian/Conse r vators/Co1wnittee Sonds .Testamentary Trus t ees Boncls does apply to gender of murder during a robbery in the first ,Receivers Bonds based strikes. ll ap degree made capital by §13A-5-40(2). •Trus tee in Liqui dation Bonds ,Tru stee in Reor ganization Bonds pears to me, based on Code of Alabama (1975). Prior to trial. ,Attachmen t /Gar nishment Bonds the various holdings the district attorney's office sent out to ,Repl evin Bonds ,Injunction Bonds of the United Slates all prospective Stale witnesses a letter •I ndemnity to Sheri ff Supreme Court, that stating in pertinent part: ,Appeal, Superse deas , St ay of when the issue of Between now and the time of trial, Executio n Bonds gender-based str ikes you may be contacted by an atto rney When you need o bond Just Co ll is squarely presented representing the defendant. He may ask to it, that Court will you for an oral statement, written state JackMc Carn hold that the State, ments, or tape-recorded statement. in a criminal case, Should this occur. you may refuse to cannot use its pre discuss U,e case with him if you wish. MickieMc Carn Edwards emptory challenges Should you decide lo discuss the case, ForProfessional Service to exclude either you may require that someone from the 251-4062 FAX:328 -0247 men or women, as a District Attorney's Office be present or cogn izable group, that any discussion lake place in the Realty Insurance Agency. Inc. from jury service District Attorney's Office. If you decide PO. BOX 55175 Bumlnghcnn. Atabama35255 solely because of to discuss the case, '"e request that yau Ph0ne (205) 25 1-4062 FAX; 328-0247 their sex. do so with a member of the Distr ict Although I realize Attorney's staff present. 440 I November 1992 THE ALABAMALAWYE R On the day of trial. d,fendanl filed a Double Jeopardy /Illinois u.J Vitale.( 447 U.S.410 (1980)(, motion foTan order requiring witnesses Blockbuster revisited the Double Jeopardy Clause bars any lo discuss the casewith defensecounsel Smith v. State, 26 ABR2706 (April 17. subsequent prosecution in which the and for a continuance. The trial court 1992). The Supreme Court of Alabama government, to establish an essential overruled the motion as being untimely. granted certiorari lo reviewt he court of element of an offense charged in that The jury returned a guilty verdict. The criminal appeals' decision which held prosecution. will prove conduct that courl of criminal appeals reversed the that a defendant who hnd previously constitutes an offense for which the conviction. holding that the district been convicted of criminal mischief, defendant has already been prosecuted. attorney's letter prevented l\ichols' § 13A·7 -22, fur destroyingschool proper This is not an ·actual evidence·or 'same attorney from attempting lo question a ty, could subsequentlybe tried and con evidence· test. The critical inquiry is witness prior to trial. victed or burglary in the third degree. what the Slate will prove, not the evi The supreme court. in an opinion §13A-7-7, for unlawfully entering or dence the Slate will use to prove that authored by Justice l(cnnedy, reversed remaining in a school building with conduct. the court of criminal appeals and held Intent to destroy school properly. The In his dissent. Judge Bowenc ritically that the letter on its face did not inter supreme court, in 011 opinion authored noted: fere with the defendant's right to a fair by Justice Maddox, reversed on the The inquiry mandated by Crady is trial. Second. Justice Kennedyobserwd ground that the defendant'sright against whether the State, in order 'to establish that defendantfailed to prove any Specif being twice placed in Jeopardywas vio an essential element of an offense ic demonstrable prejudice resulting lated. charged in (the second( prosecution. will from his lawyer'snot Lalking with a wit The undisputed evidencedemonstrat prove conduct that const itutes an ness prior lo trial. ed that the conduct glvinJIr ise to both offense ror which the defendant has The supreme court's decision began offensesarose out of an incident at the alreadybeen prosecuted... .' with the black letter principle: East Three Notch ElementarySchool in Here. the first prosecution was for A prosecutor may not prevent a wit Andalusia. The conduct that made the criminal mischief-(intentionallyf ness from giving a statement to a basis of the criminal mischief charge. destroying school property. The sec-0nd defense attorney. Any defendant may according to the majority opinion, ·was prosecutionwas for burg.lary-unlawful attempt to question a witness prior Jthe defendant's! alleged destruction of ly entering or remainingwith the intl!nl to trial, absent any intimidating forces. the glass panels in the main entrance, to destroy school p,·opcrty. Thus. to Mowever, a witness has the right lhe principal's door, 3 secretary's door, establish the intent to destroy school to refuse lo be interviewed.(See United and a classroom door and (defendant's! property, an essential element of bur States u. Rice. 550 F'.2d 1364, 1374 alleged use of a concrete block on the glary and the offensecharged in the sec (5th Cir.). «rt. denied. 434 U.S. 954 school property."The conduct that made ond prosecution. the Stale pl'O\-edcon· ( 1977)1(A defendant's right to access to the basis of the burglary charge "was duct ((intentionallyf destroying lhe a witness exists co-equally with the (the defendant's) alleged action in property) which constituted the offense witness's righl to refuse lo say any unlawfully entering or remaining in the of criminal mischieffor which the defen thing.I school with the intent to destroy school dant had alreadybeen prosecuted. In United States u. Pepe, 747 f'.2d property." In agreeing with Judge Bowen's dis 632, 654-55 (llth Cir. 1984), the The supreme court's decision adopts sent. the supreme court simply conclud Eleventh Circuit held that ·appellants Judges Bowenand Taylor'sdissent which ed that the defendant was twice put in seeking a reversal based on prosecutori was based upon the supreme court's jeopardy.thereby mandatingreversal. ally impaired access to witnesses must decision in Grady v. Corbin, 495 U.S. allege specificdemonstrable prejudice in 508( 1990). order to set forth a cons tituli onal In Crady, supra. the supreme courl claim." Mere hypothetical or general held: BANKRUPTCY prejudice will not suffice.See also Unit To determine whether a subsequent I ed States u. Clemoncs. 577 F.2d 1247 prosecution is barred by the Double (5th Cir. 1978). JeopardyClau.. Tl IE ALABAMALAWYER November1992 / 44 l rizes such action-that the propriety of Union11. FredPal/arson. 23 B.C.O.407. arose before the commencement of the such dependson materialconsiderations _ P.2d~ (11th Cir. July 29, 1992). case. The Eleventh Circuit also agreed affectingthe substantiverights of credi This ca.se held U1ata credit union had with the Bankruptcy Court that there tors of the separate estates. The court violated §362 automatic slay when it had been a violationof subsection (71o( rejedrd the argument of the F'OICthat placed an administrative freeze on the §362(a) because lhe credit union had substantive consolidation is equated debtors' account when the debtors filro filed a proof of claim asserting a set-off. with the equitable doctrine of piercing for bankruptcy. The debtors were cur· Finally, the court. in holding a violation the corporateveil, and, thus, should not rent on their account when they filed of §525. held that the debtors were con be invokedto merge estates of individu but the credit union. upon receivingthe sideredas employeesof the credit union als. ll concluded its opinion by stating information, closed lhe account and and, thus. there was di~crimination that lhe sole aim is fairness to all credi would not allow withdrawalsn or would against them solely on the basis of their tors, and that e.ich ca~ must be deter it honor checks drawn upon the bankruptcy filing. Comment: This case mined on its own facts. account. The Eleventh Clrcuil began its is probably going to cause a great deal of opinion by s tating lhis was an issue of restraint upon lending institutions. At Failure to list all assets as first impressionas to whether the freez· this writing. it is not known whether basis for denia l of discharge ing of a bank account, the filing of a efforts will be made lo take the case to In the mot/er of Ronald R. Beau proof o( claim showing a loan balance I he U.S.Supreme Court. Probably,con· lx,urcf, 966 F.2d 174, (5th Cir. July 16, reduced by the savingsaccount balance, flict in the circuits can be shown. 1992). The debtor failed to list owner· and the suspension of services may be ship of shares of stock in a businesscor violations of the automatic stay of Eleventh Circuit allow s poration in which he owned approxi §362(a). and of the anti.discrimination admini strative prior ity mately 50 percent of the stock. The provisionsof §525. thre shold claim aga i nst complaint (filed by debtor's brother) lo The appellatecourt affirmrddecisions debtor for payment of deny discharge did not allege the con of the BankruptcyCourt and the Districl civil penaltie s Imposed as cealment, and lhe debtor claimed ·sur Court in holding these constituted vio pun i shment for prise." The court, citing P.R.C.P. 15(b). lations. The defense of the credit union environmental violations rejected this argument, holding no prej was that it had no other adequate pro ,1/abomaSurface Mining Commission udice resulted to the debtor, especially lec.tion to preserve its secured interest v. N.P. Mining Co., Inc.. 963 F.2d 1449 since no contin uance was requested. in the debtors' account and tha t the (I Ith Cir. June 23, 1992). In a lengthy Insofar as the denial of dischargei s con· debtors had no equity In the accounts opinion which reviewed U.S. Supreme ccmed. lhe court said that the plaintiff based upon common law, contractual, Court law,both pre-1978Code and post had met the burden of §727(a)(4)(aJ and statutOI)' liens. ln its opinion con Code. It was held thnt penaltiesincurred since the schedules omitted all refer cerning the credit union's claim to a by the debtor while operating under ences to the debtor's ownershipand par right of set off. the court staled the Chapter 11. for its fil'$lyear as debtor ticipati on in the corporation. and credit union did not havea ,'alid right of in·possession and then with a trustee, although a discharge should nol be set off when it froze the accounts as constituted an administrative expense. denied because o( an honesl mistake in there was no mutuality of obligations The administralivt expense priority for omitting items from the schedules, the under Alabama law. The debtors were lines totalled over S2,000,000and, thus, facts here indicated ·reckless indiffer not delinquent on lhe loan when the if allowed, would prevent any distribu ence to the truth and, lherefore, the credll union froze the account. The tion to unsecured creditors. The requisite intent lo deceive." The court court went further. stating that if there Eleventh Circuit reviewedthe matter as also said it made no difference that the had been a valid right or sel·Off,freezing purely on~ of law, not factual, stating stock may havebee n worthless. quoting the account was contrary to the policy that this wasa threshold question which the Eleventh Circu it case of In re of the BankruptcyCode which does not never had been decided in any circuit Challk. 748 r.2d 616, 617 (1984) for its provide for the self-help. It stated that previously. It found that punitive civil autority on this point. the oorrecl procedure would have been penalties assessedfor post-petition min Comment: This case should act as a not to freeze the account but file an ex ing activities do qualify as administra warning to lawyers in preparing the parle motion under §362(0 or §362(e) tive expense under Tille 11, §503(b) schedules and statement of affairs, that and pay the money into the registry of (I )(A). basing its decisionon federal pol the client should be Interviewedcareful the Bankruptcy Court. The Eleventh icy found in 28 U.S.C.§959(bl requiring ly lo ascertain that the information is Circuit then determined that the district trustees to operate an estate in compli correct. Conceivably.malpractice could court wascorrect in findingviolations of ance with stale law. It did limit the be involved by not acquainting the subsections3. 4 and 7 of §362(a)of the administrativt priority to the penalties debtor fullywith the importanceof fur· Bankruptcy Code, that the acts of the incurred as a consequence of mining nlshing full and correct informalion. credit union constituted an act lo obtain operations subsequent to the filing of possession of property of estate, an act the petition and while the business was Bank 's administrative to attempt to enforce a lien agains t still operating. but not lo any assessed freeze of account property of the estate. and an act to for violations which occurred prior to Coot/rich Bmployee'sPede ra/ Credit recover n claim against the debtor that the filing of the petition. • 442 / November1992 THEALABAMA LAWYER • M·E·M·O·R·I·A·L·S • F RANK J. MARTI N Prank J. Martin, 87, a Cadsden JacksonvilleState University. AlabamaState Bar and the American attorney and former chairman or the Martin was a mem~r or the Kiwa Bar Association and was elected a Gadsden City Board or Education. nis Club. the GadsdenCountry Club fellow of the American College of died April 30. 1992. and the First United Methodist Trial Lawyersin 1956. Martin was the sen ior partner Church. Mart in is survived by his wife, with the firm of Inzer, Martin, Sut Martin attended the University of Clara Jackson Marlin; his daughter, tle & Inzer, now Inzer. Stivender. Alabamaand the Universityof Alaba Ann Rutland, of Birmingham; his I Janey& Johnson. and retired from maSchool of Law. son, Frank J. Martin. Jr.. or Alexan full-timepractice in 1970. He volunteered for military ser dria. Virginia;seven grandchildren: Martin served as a member of the vice during World War II and was and a great-grandson. Boardof Education from 1947-1962 commissioned a captain in the The familysuggests lhal memori· and waschairman from 1959-1962. Judge Advocate. Cenernl's Depart als moy besent to the Prank Jackson Me was a member of the board of ment of the U.S.Army . I le served in Martin Scholarship Fund al the Uni directors of the American National the Pacific. atta ining the rank of versityof Alabama School or l..aw. Bank(now AmSouth)and of the Life lieutenant colonel, and earned the InsuranceCompany of Alabama. Arm}'Commendation Ribbon. -Reprinted in part from Me was also a tYU$ltcof the Inter Martin was a member of the The GadsdenTimes national Endowment Poundation of Etowah County Bar Association.the April30, 1992edition WtLLIAMW HYTEB EDFORD STEPHEN8E:A SLEYCOLEMAN WILLIAM CHRISTIANHI NES Birmingham MountainBrook Brewton Admitted: 1966 .4dmitted:1927 Admitted: 1938 Died:June 14, 1992 Died:September 7, 1992 Died:July 21, 1991 JAMESL EDBmt;lt BEt:CH, J1t. JOSEPHMATHE S Scorr DAWSON CttF.ER MARECl·IAI. MURPl IY Jasper Scollsboro Nobile Admilled: 1948 Admitted:1933 Admitted: 1939 Died:September 13.1992 Died:M a}' 19, 1992 Died:December 31. 1991 ROWANS. BONE RICHARDVAIDEN EVANS, JR. FRANKBLAN CHARDPARSONS Gadsden Birmingham Fairfield Admilled: 1950 AdmI/l ed: ) 941 Admilfed: 1942 Died:September 17, 1992 Died:July 2. 1992 Died:August 3. I992 AlL\N ROFFCAMERO MARVINW ILLIAMSGOODWYN, SR. JuuusSETH SWANN, JR. Mobile NewportBeach. Califomi'a Gadsden Admilled: 1935 Admilled: 1940 Admilled: 1967 Died: July1 1. 992 Died:Decemb er 23, 1991 Died:Sep tember 4, 1992 JOHNED CAMPBEl.L ROBERTB. HARWOOD,SR. JULIANLE ONT OURO Alexandria,Virginia Tuscaloosa Palm Beach.Flo rida Admilled: 1945 Admitted: 1926 AdmitJed:1 933 med: October 14, 1991 Died: October22. 1991 Died:August 28. 199) THE ALABAMALAWYER November1 992 / 443 CLASSIFIED NOTICES RATES: Members: 2 free listings per bar member per calendar year EXCEPT for "posl1ion wanted" or 'posi tion oftered" lisllngs - $35 per insertion of 50 words or less.$ 50 per additional word; Nonmembers: $35 per insenion ol 50 words or less. $.50 per additional word. Classified copy and payment mus1be ,eceived acca Send classified copy and payment, payable 10 1he Alabama Lawyer. 10 Alabama Lawy8f Classlflods, c/o Margaret Murphy, P.O Box 4156, Monl· gomery, Alabama 36101 • For Sale: Antique Alabama maps- dures and a working knowledge or FOR SALE 1820s-1860s. Great as oHice decora Alabama govemment and/or leg1sla· • For Sale: The Lawbook EX· llon or Christmas gift. Guaranteed live process is preferred. Admittance change, Ltd. buys and sells all authentic. Write, call or lax for hsl and and good standing with the Alabama major lawbooks . state and federal . photos. So l MIiier , P .O. Box 1207 , State Bar is a requirement nationwide. For a ll your lawbook Huntsville , Alabama 35807. Salary Is commensurate with experl· needs, phone 1-800-422·6686. Phone 1205) 536·1521. Fax ence. State Farm provides a compre MasterCard, VISA and American (205) 534-0533. hensive benefits package which includes profl1sharing. company-fund· Express accepted. • For Sale: 1979 16-volume set of Ben ed retirement plan and cost of living der's Forms of Discovery. Best offer • For Sale: Save 50 percent on you1 salary adjustments. Send inquiries to P.O. Box 453 , lawbooks. Call Nalional Law Resource. Please respond only In writing to: Elberta , Alabama 36530. Phone America's largest lawbook dealer State Farm Insurance Comp&• (205) 968-8633. Huge Inventories. Low prices . Excel nies, Attn: Personnel Dept. , lent quality. Your satisfaction absolute • For Sale: Complete, virtually new set P.O. Box 2661 , Birmingham , ly guaranteed . Also. call America's of U.S.C.A., with complete, up-to-date Alabama 35297. largest lawbook dealer when you want supplements. Must pick up In Mobile. • Position Offered: A Mobile atlor to sett your unneeded books. Call for Phone (205) 433-0416 . your free, no-obligation quotes , ney wilh a substantial plaintifrs prac· 1-800 ,279 · 7799. National Law lice In employment law. Including fed· eral c,vil rights litigation, is seeking a Resource. POSITIONS OFFERED younger assoc iate to assist In that • For Sale: Model Rules of Professional area and also handle a variety of other • Position Offered: Attorney jobs Conduct. Personal copies available for matters of general practice. excluding Nationa l and Federal Employment $5 (Includes postage), Mail check criminal work. One-three years' experi Report. Highly regarded mo nthly to P.O . Box 671 , Montgomery , ence is preferred. Send resume to detailed !Isling al attorney and law A labama 36101 Pre-payment Hiring Attorney, 1321 Dauphin required . related jobs with the U.S. Governmenl. Street, Mobile , Alabama 36604 . other public/private employers In • For Sale: William S. Hein & Co., Washington, D.C.. throughout the U.S. • Position Offered: The Public De· Inc .. serving the legal community for and abroad. 500-600 new jobs each tender Commission is presently taking over 60 years. We buy, sett. appraise issue. $34 for lhree months: $58 for six application for 1he pos111onof the all lawbooks. Send want lists 10: fax months. Federal Reports , 101 o Tuscaloosa County Public Defender. (716) 883·8100 or phone (1,800 · Vermont Avenue, NW , #408 ,AB , The Public Defender Office currently 828 -7571), Washington, D.C. 20005. Phone has lour anomeys , For addition, • For Sale: Corpus Juris Secundum, 1202) 393·3311. VISA a.nd Master al information , please contact Dan Gibson , president, Tusca, inc lud ing 1992 pocket parts and Card accepted. loosa Co unty Bar Association, recompiled volumes. All books in • Position Offered: Claim attorney. P.O. Box 031522 , Tuscaloosa, excellent condition . Phone (205) State Farm Insurance Compa, Alabama 35403. 355,9350 nies is seeking C?ndidates for the • For Sale : Complete Code of Alaba position of claim a11omey. This position • Position Offered: Legal Services ma. Updated through present dale , will be located at lhe Alabama Region Corporation of Alabama, Inc. has a Good condition. Good price, $350 . al Office in Birmingham. staff allorney position opening in lhe Phone (205) 995.2393 (office num· Responsibilities include legal Gadsden and Annislon offices. Previ ber). research, training and providing coun· ous admission to the Alabama State sel to clai m management. division Bar required or must lake February • For Sale: Alabama Law Bibliography management and the executive office. 1993 bar exam. Oriemation toward the for $8 (includes tax and postage) . This individual will also maintain a con prob tems of low-income clients is Mail check to Barrister Press , tinuous study and review al legislation desired. 7743 Halcyon Forest Trail, and court decisions affecting the Salary Level· $20,388+DOE. Please Montgomery, Alabama 36117 . 1nsurance/cla1ms arena. Experience in submit letter of app llcallon with Pre-payment required. Insurance defense and civil proce- resume' and wroling sample by 444 / November 1992 THE ALABAMALA\o\lYER Decembe r 1, 1992 10: Legal Ser • vices Corporation of Alabama, Inc. , 802 Chestnut Street, NOTICE Gadsden, Alabama 35901 , Attn: Ruth S. Ezell, managing attor ney. Legal Services Corporation of EDWARD LEWIS HOHN , Alabama. Inc. 1s an equal oppor1unily attorney at law , whose whe reabouts are unknown , must answe r the employer. Alabama State Bar's Rule 25(a ) Petition No. 92-03 within 28 days of Novemb er 15, 1992 or, thereafte r, the Rule 25(a) Petition containe d there· SERVICES in shall be deeme d admitted and approp riate disci pline sha ll be imposed agai nst him in this matte r before the Discip linary Board of the Alabama • Service: Traffic engineer, consul Stale Bar. lanl/expen wi1ness. Graduate, regis tered , proless 1onal engineer . Forty Disciplinary Board years' experience. Highway and city Alabama State Bar roadway zoning Write o r call !or resume, fees. Jack W. Chambliss , 421 Bellehurst Drive, Mont gomery , Alabama 36109. Phone (205) 272-2353. • Service: Legal research help. Expe rienced attorney. member or Alabama Slate Bar since 1977. Access to slate law library WESTLAW available. WHERE THERE'S A WILL Prompt deadline searches . Sarah Kathryn Farnell, 112 Moore THERE'S A WAY Building , Montgomery, Alaba ma 36104 . Phone (205) 277• As a lawye r, I know the traditio nal 7937 . No representationis made that reasons for urging clients lo d raw /he quality of the legal services to be performed is greater than the qua/Tty up a will - ensure that their wishes of legal services performed by other are carried out, protec t survivors lawyers. from unnecessary headaches and • Service : Examination or ques11oned reduce or elimina te tax burdens . documents. Handwri~ng, typewriling and related examinations. lnlernatlon Bui as a person with a neuromusc u ally court-qualified expert witness . Diploma1e, American Board of Foren lar disease , I know a will is also an sic Document Examiners. Member : effective way to leave a lasting American Society of Questioned legacy of hope for those in need of Document Examiners, Iha Internation special help. 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Health Care Audi· Tucson, AZ 85718 t ors, Inc ., P.O. Box 22007 , St , (602) 529 -2000 P e tersbur g, Florid a, Phone Jorry Lewis, Natfo(>alChairman (8 13) 579- 8054. Fax (813 ) 573. 1333. • THE ALABAMALAWYER November 1992 / 445 F. ndil'l/!the pnXISC Clle law)'OU prwimiiy connccmrs, a theocher UHTlt. NOW THIS IJ TH£ OHL, LANGUAGE needhffi l1C\'Cr reenfalter; c:isn; a ircm;~ by ocher~ You COULO use TO CONPOSI: A CA.SE LAW woa-oSC.A,tC.H R CQUtsT ONUHL more rorurnl researchS!rVlreS. (Ira 111!1w/ 16 a,1111 Moreways to win ersall or a por1,onol h,s rights In the paten1ed1nvon110n Undo, both the copynght ot>dpotent laws. a pe1SOnwho purchasos a from oul of the state and the use of a copy ol soltwareor an ltom or patentedhardwrue 0< software has acquired certain,lgh11 In 11181 California subcontractor,the court held copy or 11em,bul has not acquired ownership rlghlS In the oopyrlgl\1 or patent These ranor that there wasa connection betweenthe righlS musebo gron1odby con1ract.generally In t'10lorm of an assignment ""llcenae (SH contract and interstate commerce - a generally, N,mmer alld N mmer, NIMMERON COPYRIGHT( Mauhew BendC<& Co 1992), connection that the court called "tenu Chisum.PATENTS (Ma11hew Bonder & Co 1992) ous," but sufficient to provide a slight 9 Bvell,cJgoBllnlcv VMlbanclnc..866F2116811•111c.- 1969). S1Jn,,vardeo,p.v Dllt&Bntd nexus. streef , Int 811 F2d s11(1Cllh c. t987). d. ~ c.su.ty& s.n v Jeppe,son & Co,. 642 Consider also the recent decision of F2d 339 (91h C., 1981) (product ~~ty analyslt used 10 rnpose ~abif,ty tor misleading ,nfot. mabonoo flight""11ume
rceclient accordingly. Visa.etc., each with a large account balance. -charge" d. I( )'Ourdi,-orce client is to get the marital residence,but accounts al local department stores or clothing stores the other spouse is lo maintain the payments on the do not necessarily activate a bankruptcy warning. so mortgage. and the other spouse has a history of being long as the accounts have been historically kept current. delinquent in paying the mortgage payments on the since this may only indicate that the other spouse buys house during the marriage, he may be a candidate for the family's needs on a charge account. Several out-of. discharge of the obligation to pay your client's mortgage stale "credit" accounts, and especiallyif they have not through bankruptcy. A150,if lhe other spouse has a his· always been kept current, should be considered differ tory of delinquency on his consumer accounts. or has ently, however. as the other spouse may ha,•e been too many consumer accounts, he may also be a candi· inlenlionally -kiting· these accounts by borrowing date for discharge in bankruptcy. After you discowred money on one ·credit- account to make minimum pay lhe other spouse's regular monthly net income in the ments on others. planning this bankruptcy for a long divorce, and if lhe sum of the minimum or regular time. monthly payments or the marital debts which he Is b. If the net equity in the house the other spouse is to get agreeing to assume in the divorce settlement exceeds60 in the divorce and use as his residence is less than percent of his average 111/lnlhly net income, bankruptcy $7,500 or if the house Lo be his actual residence has a alarms should go off. as it ls generally accepted thnl a lnrge equity, which he could easily pledge against a new person needs at least 40 percent of his average monthly post-divorce home equity loan to limit his equity lo net income to provide for his own housing. food. auto under SS.000. watch out! In this wa)•, if he files for mobile mortgage, clothing, and other necessities and bankruptcy, he can keep his homeplace t\'eJl afier the expenses. If the other spouseis agreeing to pay marital bankruptcyas it would be within his homesteadenmp debts with minimum or regular monthly payments tion20. exceeding60 percent. then it is likely that he does not c. If you know that the other spouse'sdiwrce attorney has intend to pay the marital debts but intends to seek experience In bankruptcy litigation, ii ls likely he will bankruptcy relief. or, though he actually intends to pay also be advising his divorce client on his options of the marital debts, alter he discoverstha t he cannot pay bankruptcy relief. If the other spouse's lawyeris a gener- his own basic expenses to live after paying the minimum payments on those marital debts, he will be forced to setk financial relief through bankruptcy,or through his mere disappearance. LAWYERS: e. If the spouse is willing and even eager to assume more LE'f US HELP YOU HELP YOURSELF than half the marital debts. in consideration ror paying less periodic alimonyor child support to your client. or m consideration for more cash, savings. life insurance Wlth a PROFESSIONAL legal secretary at your policies,e quity in the homeplace, or other assets within side, your firm is on the move. the statutory bankruptcy exemptions discussed above, then the bankruptcy alarms should go off that he may A PROFESSIONAL legal secretary can: be intending lo seek bankruptcy relief to discharj!e his obligation lo pay lhc property settlement to )'Ourclient, (;ZJBe an Invaluable resource with access lo while claiming his di\'Orceproperty settlement rewards CONTINUING LEGAL EDUCATION . as exempt and payingless alimonyor child support. [21Give NElWORKING OPPORTIJNITIES f. If any close friend, fellow worlceror family member of the other spouse has e\'er med for bankruptcyretie(, It ,s through contacts made at seminars and likely they will di.scuM with lhe other spouse the finnn• conferences. dal ·good deals" affordedthrough bankruptcy. 121Glve you the EXPERTISE you need to stay at the leading edge of the legal servicesdel ivery team. OFFENSIVE BANKRUPTCYLITIGATION Though severdl offensivestrategies will be di.$cussed~low, Enrollyour secretaries in your localchapte r of the >'l)Urclient's best chance lo protect her divorce-relatedentitle· AIABAMA ASSOCIATION OF ments from dischargein bankruptcy is either to file an applica LEGAL SECRETARIES today! • tion for relief from the automahc bankruptcy stay, under 11 U.S.C.§ 362(b)(2),that the debtor's obligations to your client Contact Tammv Denson are for "maintenance and support- and therefore not dis 26178th St. chargeable In bankruptcy, or, if the application for relief rrom Tuscaloosa, AL 35401-2103 AL~ A!ik.:!Ata-.,. a 1.tp,U...._St,;1,nioa11...... · • lhe automatic stay is denied in bankruptcy or if your client's (205)345-7600 ...... -- specific claims are questionable under bankruptcy review.t hen 420 I November 1992 THEALABAMA LAWYEll to lite a complaint Lo determine the non-dischargeabililyof discharge his listed debts if it can be prO\•enthat he has your client's claims, under Bankruptcy Rules 4007 and 4004. sold, concealed or dcst royed assets with the intent to Under both of these bankruptcy proceedings, you are attempt defraud his creditors within one year before th~ filingof ing to persuade the bankruptcy court to find that your client's his bankruptcy petition. or if he has commiUeda fraud individual claims are not discharged by her Connerhusband's on the bankruptcycourt, or if he has failed to cooperate bankruptcy proceeding since al least some of her claims are with the bankruptcy trustee by producing records and specifica lly excluded from discharge under 11 U.S.C. § explaining transactions, or ir he has understated his 523(a)(5),as alimony, maintenanceand support of the debtor's income. This offensivestrategy is not specificallyadvan spouse or child. This 1syour climt's best chance of getting paid tageousto your di\.,orceclient since, if such allega1ions her di,'OrceentiUement.s since only her claims will survive her are proven and the bankruptcy court denies Lhe former husband's bankruptcy discharge, and the claims of all bankruptcy discharge, all of the creditor~ will be stand the other creditors have now been discharged. In this way. Ing in the line, along with your di\'Orceclient, to collect your client can pursue collecllonof her di,,orce-relatedclaims their claims from the debtor. Though this is gl!nerally against her former husband's post-bankruptcyassets and cur easier to prove than other offensivestrategies. l!.g. actu rent Income, while all of his other debts will have been dis al rraud on creditors or actual fraud on U1e bankruptcy charged. Mence,your client will be the only creditor standing court, If the debtor can defensively convince the in line to collect her claims. bankruptcy court that this was merely an oversight. Another offensi,'Calternative is for your client lo file in the then he will likely be all°""-edto amend his bankruptcy bankruptcy proceeding a complaint to determine non-dis schedules and ii is likel)•that his discharge will not be chargeability under Bankruptcy llule 4007 alleging that her denied. And. remember that your client must prove that former husband's discharge in bankruptcy should nol apply to this bankruptcy misconductwas "intentional". her as the debtor ob!ained rnonei•or properly in the di\'Orre b. II U.S.C. H 105 or 707(b) • Your divorce client. as a settlement -by false pretenses, false represenlillion or actual creditor, can also request that the debtor·s entire fraud" in negoliating or structuring the divorce settlement, bankruptcypetit ion b~ dismissedfor "substantial abuse" and therefore your client's clai111sshould be e.-ccluciedfrom any of the bankruptcy process. ILshou ld also be understood discharge under 11 U.S.C.§ 523(a)(2).This allegation Is o/len difficultto prove and the bankruptcy hurdle is a high one. The divorce practitioner should also consider this aggressive "bankruptcy" strategy in conjunction with the aggressive WE SAVE YOUR ··divorce''strategies of applyingfor a new trial under Rule 59(a) or for relief from the di,,on:ejudgment under Rule 60(b)(3) of . - TIME . .. the AlabamaRules of Civil Procedure. Remember that under the "fresh start" principles of bankruptcy, this strategy should ~ !e, arnell Now legal researchn~istonce only be consideredin the exceptional=· i> availablewhen you need it, If the divorce practitioner suspects that the other spouse L E G A L without !he nc«ssny or may file for bankrupt(;)'relief or if the divon:e praclltioner is adding o rull-thneu~wci:uc or R esearch willing to add addilional steps to his customary divorce proce clerk. dures, he can add additional proof in the divorce action which could obstruct the other spouse's claim of e.-cemptionsin the Wi!b acre~, to the Slll!C Ut\\ Library and Wes1taw. n~nt of bankruptcy. This can be done by the di\'Orcepracti· = provide ra,t ond cfficien1-ervice. For deodlinc work. we tloners consistently establishinAhigh valuations or all assets con deliver infonnutlon1 0 you viu commoncurrier. in the divorce, by additional and specific facts set out In the FedernlExprc,s. or FAX. witness deposition if Lhe divorce action was settled, or by detalledand specificproof through the witnw testimonyif the Farnell Lego! R=rch eummes the 1»ues thoroughly di\,orceaction is litigated. This proof should establish high val throughqun lily research. brief wru111gond anotysb. uations of each asset lo fix the value of each asset in the divorce. laying the foundation to prove that the value of each Our rmc, nre $35.llOper hour. wlth a three hour asset which the debtor may later claim on his bankruptcy minimum. schedules as exempt, is substantiallyless than the vatuatoonof For Research Assistance con tact: that same asset already establishedby sworntesti mony several months earlier in the divorce. In this way. those assets which Sarah Kathryn Farnell the debtor claims as exempt in bankruptcy which have values 112 Moore Building which e.-cceedhis statutory exemptionsand are thereforeob1ec Montgomery, AL 36104 tionable under the Bankrupt(;)•Rule 4003(b),shall be sold for ultimate distribution to the creditors. Call (205) 277·7937 There are U1reeother available theories of reliei, though these should only be usedin the aggravatedcase: lr;andli'le Du/Ion, clerk of the Districl Court of The difference between the improper u.,1..... r; of Alabama Morgan Count.,;.and Bob Burrell, Dis· use of a statute a means or punish •nd eernedhes law as deg1eefrom lhe Un~ Irie/Allomey of MorganCounly, 26 ABR ment for debt and the proper use of a vo11lty'1School of 1.11w 392.1(June 19. 1992).Pigg Jy WigglyNo. statule as a means of punishment for a