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ORDER FORM PJease enter m)' order fo,· the publication Jis1cd bcl
TIit:Jfd_11 11HmSONCOMl'ANY . l' UIIL!Sl//:,'/lS 31It) C.:l\,.,,,na:P.u l • N,u( ru,-. Ct.,,.,., 1(\)71 (..o4) '411·9 1,0 GJ1ii~Alabama v~wy_~~ Publl~t'd Bimonthly bf THE MARCH 1984 1'he Al;)bofnllSt.a ll! Bar P.O. Box4156 Moruaomrry. AL36101 Phooe(200) 2G9·1S15 Robel'cA . HuJfaker- F..diior Jen N()'.o.·t.11- ~tanaging EditOf' BOARD OF EDITORS Phillip F:. Adtuns, Jr .. Opelika • Braxton \V, Ashe, ·ru scumbia • JamesA.Byram.~tontgotntr)' • Robert P. Oenni.s1on, t.tobilt • Van~lt:I Penn Duranl. ~tQnl· gomety • Patrick H. Craves. Jr .. Hunts,·ill€ • Robert 6. Harwood.Jr .. Tuscaloos., • Robtrt R. Kracke. Bir· mingham • Champ Lyons. Jr•• Mobile • \\!illiam O. Ml"hon. Evergreen • L 1'1"ewR('(ldm. Birm ingham • Carol Ann Smi1h,Birmingham • J. P..tark\V hit~. Bir· mingham • Steven L. \\'is~. Tu!>c.alo<>S:i• J.O. Sentell. ex-officio. Mon1go.mrry OFFICERS
\Villi.nmB. Hairs.1on,Jr., Birmingham • Pttdidc:nt \\'allcr R. 8y.i,rs,Moo1gomer y • Prd ident-elect Ric.hard S. Manley, Dtmopolis• Vice President ReginaJdT . Ham,,er.J.tontgom,ery• Secretary - BOARD OF COMMISSIONERS A Strategic Move 1st Circui1,F..dwardP . Tumcr. Jr .. Chatom • 2nd Cir cuit, P. Rtcharcl Hartl• 3rd Circ:uh, J, -pg. 73 Gorman Houston.Jr .. Eufaula • 41hCirc uit, Hnrr)' \V, Gamble.Jr .. Selma • 5th Circuit, Fred O. Cray, Tus• Earlier this year the Alabama St.ate kcgtoe• 6th Circ.uh, \Vaher P. Crownover,TuSiC3loo- Bar inaugurated its new professional 1;a • 7th Circuit, H. \\'nyne 1--0\•t, Anniston • 8th Cir, c.:u1t. Robtrt Stmub, l)e(atur • 9th Cirt uit. \\'illiam I) , liability insu,·ance program. Alabama Sc:rugg5.Jr .. Ft. Pnyne • 10th Circuit. \Varren 8 . Lightroot , Birmin gh3m • I llh Circ uit. Stc wtirt attorneys are urged to consider this o·n.,nnon. Jr .. Fl(Jll'tnce • 12th Circuit, Joe C. Cas program. Details inside. sady, Enterprise • 13th Circuit, fk n H. Harris. Jr .. Mobile • 14th Circuil. Rol>L-rt T. \\1il.son, Sr .. Jas per • 15th Circuit .John 6. Scott.Jr ., l\1on1gomery.• 16th Circuit . Ludger 0. ~{artin, Gadsden • 17th Cir, c:un, Richard S. Manley, Ot1nopolis • 18th Circuit, Oliver P. Head. C~umbian:i.• 19th Circuit. Ted Tay• tor Pra1tville • 20th Circuit. \\lade Haxle)'. Dothan • 21;, Circuit. Broox G. Garr ell. Brewton• 22nd Cir, cui1,H arold Albriuon.Andalusin • 23rdCirtui1.C:ir)' Compensating Clients for C. Huckaby, lluntS\'ille • 2
Ad\•,:n11•1t'\1tla ir, willbC' f utn 1llhl
Upcontln g Ma rch 9-10 Alabama State Bar Midyear Conference,Montgom ery April 5- 8 ADLAAn nual Meeting, Palm Beach. Florida M ay 18 -19 Young Lawyers' Annual Seminar, Sandestin, Florida J uly 12-1 4 AlabamaState Bar Convention, On the Cover Mobile John Proctor, bar commissioner from Lawyer groups wishing to the38th Judicial Circuit, is the photog have meetings listed in this rapher of the from photograph, taken column should contact the Ala in connectionwith the specialemp hasis bama State Bar. on alcohol in this issue. Proctor is with the law (irm Thomas & Proctor in Scottsboro.
We Have Met th e En emy -p g.1 02 Regular Featur es Although lawyers and judges are no President's Page ...... 64 more prone to alcohol abuse than the ExecutiveD irector's general pouplalion, it is estimated that Report ...... 65 nearly 700 Alabama lawyers are alco· Letters to the Editor ...... 66 holies. This alarming number has spur About Members, Among red the bar's task force on alcoholism Firms ...... 70 and drug abuse to action, needingand Legislative Wrap-Up ...... 74 wanting to help those confronting this Recent Decisions...... 81 disease. Bar Briefs ...... 85 CLE Opportunities ...... 90 CLE News ...... 92 Riding the Circuits...... ·96 Bar Comntl ttee s Se ekin g Young Lawyers Section ...... 98 Answe rs General C.ounsel -p g. 94 Opinions ...... 113 The Final Judgment ...... 117 Many issues facing the bar are pres Classifieds...... 119 enlly beingha ndled by several commit· tees of our association. Each Alabama lawyer will be affected by their work, taking place statewide.
t he Alaba,na l.atuJ-er 63 c.preside)U's c.page
HAIRSTON
n this issue of The Alabama Law that I have borrowed too heavily practicing lawyers. adopt lo guide us? yer you will find a report by Mary fromL he work or other men. How do we put a hall to this ever grow I Lyn Pike on the work of some of The late Berna rd Shaw defined a ing disciplinary problem? the committees of the Alabama Stale gentleman as one who refuses to take As a profession we have the respon Bar. We have about one committee out more than he receives. sibility of disciplining ourselves. This meeting every third day. An average of And finally the words of our own has become a monumenta l task. It is Lwo thirds of the commiuee members Mr. T.B. Hill of the Montgomery Bar: quickly reaching the proportion of atte nd each meeting. When you con Ours is a noble profession. From its diminishing returns. Forget, if you sider that the members are spread ranks have come. throughout the can, the bad apple. Consider lhe thou across the state and the conflicts that history of the Republic,th e leader sand of lawyer hours that are spent by lawyers are heir to. this record is truly ship whichguided and directedthe the members of the local grievance remarkable. destiny of our shipof stale in timesof l)(!aceand sustained us in tiine of commiuee in investigatingcomplain ts: We, as a profession, are in debt to crises. the size of our disciplinary staff; the these lawyers who give so generousli• It is wonderful to work with lawyers work of the Disciplinary Commission of their time and talent. As we each go in separating the chaff from the grain; about our busy, busy "business" of and for our profession. If you haven't enjoyedthe experienceof pan icipating hearing after hearing of lhe Discipli practicing law, we might offer a Jillie nar y Panels composedo f the members prayer of thanksgiving to those of our in the outreach of your profession. now is the time. Walter Byars will soon be of the Board of Bar Commissioners. membership who give of themselves to We are Ihrowing away thousands of our profession. knocking on your door. Pleasure your self! Give opportunity a chance. hours and tens of thousands of dollars As I consider the generosity of the I wish I could end this report right trying to protect the public from our gift of these dedicated professionals, I shortcomings. am remindedof three great statements: here saying everything is great - let ·s gel together and make it even greater. I Look al the other side. What if we Albert Einstein wrote: can't - it ain't. could use all these hours - all this Strange is our situation here on We do have problems. I echo two mental energy - to move our profes earth. Eachor us comesfor a short concerns that were shared with the sion forward? T hese are dedicated visil. nol kno,ving ,vhy, yet sonte· hands that if relieved of their house ti1nes seeming lo divine a purpose. Montgomery Bar at its last annual Manytimes a day I realizehow m uch meeting. Concerns of such major im cleaning chores would serve in a more positive capacity. of my own outer and inner life is portance that they could drag our pro built upon the labors of my fellow fession under. Whal arc we going to do about it? men. both living and dead,and how First and foremost is discipline. How Let's take a page out of the DUI battle. earnestly I must exert myself in Reviseour rules so that public censure order togive and return as muchas I dowecopewith thatgrowingsegment have received. My l)(!aceor mind is of our profession who are not prepared is the minimal sanction for the viola- oftent roubledb y thedepress ivesense lo live within the standa rds that we, as (Co11/i11ued 011page I 12)
64 Morch 1984 <-Executive C.Oirector's ~port
HAM NER
ouaresl ill more than a number instances, the middle name must be a bulk permit. Th is ma il is not for al the state bar. even in an ad used to avoid confus ion. The use of warded by the post office and. due Lo Yvancing age of technology. The suffixes (i.e., Sr ., Jr., ll, 111, etc.) is es the cost Lo the bar. we cannot guaran membersh ip list has been computer· sential due to the significant number tee ret urn postage on undelivered mail. ized but you haven 'L become a mere of second and t hird generat ion practi To insure receipt of your mail. be sure number. We sti ll know your name. tioners within our bar. T he use of year we have your current address. your add ress, the year you were born . of birt h and year of admiss ion will This new system will significantly the year you were first licensed to per111itthe bar to compile selective reduce our mailing costs plus speed up practice (in the jurisdiction or your ma iling lists where a person's age or the processing of all bar mailings. It origina l admission ) and your member number of years in practice is signifi costs the bar len cents lo accomplish ship category, be it licensed, special or ca nl. This will particularly benefit the each address change but this does not exempt {those persons admitted in Young Lawyers Section of the bar as seem unreasonab le in view of the num Alabama less than two years). well as those bar committees who from ber of address cha nges we receive each It is hoped that you have received a time lo Li111eneed to survey the mem day. We recently changed over 120ad data verification card by now so that bership. dresses in a sing le week. the persona l information used for each The bar has absolute cont rol of the member can be verified. We have al· We are asking that changes of ad dress be requested in wril ing. Fre mailing list. T he mai ling serv ice will lem 1>ted a hand audit of t he 7,200 not make it avai lable except upon writ membership records put into the sys quent ly, a firm will relocate its offices and a single member will write asking ten direction from this oUice. It will tem: however. it is possible that we not be sold for commerc ial purposes have used incorrect informalion or Lhat that member's address be changed. Because many of our members choose and will not be made available for any that it has been coded improper ly. commercial solicitation except those LO use a home address instead of an Please examine the label on this Ala member benefit program s sponsored bama l.owyer to insu re that it reflects office address, we will not auwmati callychange the addresses of the other or endorsed by the state bar. Limited t he address at wh ich you wish lo re use of the list can be made available to ceive bar mailings . members of the firm unless specifi ca lly requesting multiple changes. We cand idates who have qualified for stat e Because or space limitat ions, we are jud icial offices and attorney general. us ing the shortest and most exact ad plan Loput changes into lhe syste m on the 25th day of each month; however, Of cou rse, those candidates must pay dress for each member, i.e. a post office fort he cost of preparing such a list. h is box, or street address if a post office we will atte mpt LO have all changes made prior 10 any bar-w ide mailing if also customary to allow each candidate box is not ava ilable. We have also de seeki ng the office of president elect of leted firm names. While we prefer to the number of changes warrants ear· lier action. the bar to use the list for one mai ling. use the standard first name - middle Send changes of address 10: The initial - last name sequen ce, this is To borrow a phrase from Hugh Alabama State Bar, P.O. Box 671, not always practical since a substan Downs of ABC's 20/20. "You stay in Montgomery. AL 36101. o tial number of our members have iden, touch, and we'll be in Louch." T he vast tical first and last names and in most majorit y of our mailings are sent tinder - Reg inald T. Ham ner
The Alobanu1IAW)'CY 65 ALABAMA TRUSTS AND
Reflect ions article ent itled, "Who is Alabama's ESTATES Oldest Lawyer?" J would like to know "Renectionsof the Reflective Round· table .. was outstanding . Lawyers like your crite ria. U you are going to base 1984 Edition John Caddell, Robert Adams, Douglas your findings on how one feels or the Arant, Jimm y Carter, Guy Hardwick, nu mber of scars one possesses or the Alabama Trusts and mileage attained by a lawyer. I would Estates, 1984 Edition, contains Judge Harwood and Judge Lynne have my respect and admirat ion. not so like to sub mit my name for your con· in one convenient volume, sideration. On the other hand, if you're provisions of the Code of much because they are so success.ful and so dedicated to our profession going stric tly by years. Mr. Douglas Alabama regarding trusts and Arant. Bibb Allen and maybe one or estates, together with . (many lawyers and judges have these qualities). but because they h~ve a dry two other members of the Bar can de anno tations of cases construing feat my claim to the title. those provisions. This valuable wit and cha rm which I associate with reference is fully armotated the most gifted "trial lawyers." These TuSCOUIOS(J Hugh W. RoberL~, Jr. and indexed. Areas covered gentlemen are, in my opinion, at the include: top of our profession because they have this ente rta ining ability to "tell a LETTER S TO THE EDI TOR • powers and duties of story," a knack which guarant ees any· trustees and other fiduciaries one - lawyer, judge, jur or. witness or T he purpose of the Letters to • righ ts of beneficiaries the average man or woman on the the Editor column is lo provide a • guardian and ward st reet _ the rapt attention of others. forum for the express ion of the relationships Congratula tions to The Ala~ma readers' views. Members of the • wills l,awyer for sharing these reflections Alabama State Bar are invited to • ad ministration of with those of us who missed them ,n submit short letters, not exceed decedents' estate s person. ing 250 words, express ing their opinions or giving information as Bill Baxley $17.50* Lieutenant Governor ro any matter appearing in the publication or of concern to the Appx. 860 pages , softbound of Alabama bar membership. The editor re· © 1984 Alabama 's Oldes t Lawyer? serves the right to select excerpts =THE======.=:== therefrom to publish. All letters MICHIE COMPANY J have ju st completed reading Lhe specifically addressed as Letters January 1984edition of The Alabama to the Editor will be candidates ~~ Lawyer. The make·up and con.tent of for publication in The Alabama for customer service contact: Lawyer. T he publication of a let· JAMES R. SHROYER the publication is most attract ive, en lightening and ente rtainin g. You and ter does not, however, constitute P.O. Box 717 others responsible for this good work an endorsement of the views ex· Pelham, Alabama 35124 pressed. Letters should be sent (205) 326-9899 are deserving of the heartiest congral· ulations from every recipient of The to: T he Alabama Lawyer, Letters •plus shipping, handling Alabama lawyer. to the Editor , P.O. Box 4156, sales tax where applicable r was particularly interested in the Montgomery, Alabama 36101.
66 Morch 1984 labama is 011e of a f ew slates, if11ot /l,e o11ly, wl,ich A does 11otha ve i11op eralio11. au acti ve Clie11tSec uri ty Fu11d. In an effort lo rem etly /hi s situalio11, ottr curr ent Bar Assoc iation pr esi dent fon11 ed a Tas k Force 011 a Client Securi ty Ftmd wl,icl, was Why AlabamaNeeds a cl,a,g ed wit/, dele r m i ni 11ga 111ea11s wl, ereby /1,e A labama Stat e Btu· Ass ociation could operat e a Client Client Security Fund Sec urit y Ftt11d and a p1·oceduref o1· the fundin g of s uch afw,d . Armed wilh tlti.s cluu ge a1UI its con comit a11t duly , the task f orce began lo m eet a nd develop propo .sals for a Client Sec urit y Fu11d of th e A la bama S tale Ba, ·. Th e end ,·e.mll of th ese efforts has been th e tlrafli II/! b y th e task for ce of p roposed n ,les eslablislziu g a Clie11/S ecurit y Fund Committ ee and definin g procedur es to govern pro ceetli11gs co11tlucletl upon an app/i calio11for reim.bu r sem.e11lfr om /h e propos ed Clie11l by Jam es S. Ward Se cul"ity Fund. A tldilio11all y, a proJ,osed applitatio11formfo1 · rei111. burs em e11t tmd a11 i11formatio1Utl pamphl et ha ve been dmfl ed. II is s tressed that these m ·e proposal s only and ar e subj ed to the appro, ml of the Board of Ba, · Comm issio11ers befor e impl em entation. A ddilion ally, ftmdiugfo r /he Clieu/ Seettrit y Fund is coutiug e11/upo11 /he draft ing of app ·ro/>ri at e legislation and legis lati ve autho r izatio11. Thi s arti cle is i11te11ded to bri efly outlin e th ese proposal s. It is 110/ the au/J,or 's i11fenlio11lo pro vide a tle lt1iled a11alys is but rathe r a s um Jomes S. Word, o member of !he Bir· ma ry and over view of pertin ent 111i11ghamlaw firm of Wa,rf& McK11ighl, pro visio11s. received his B.A. degree from /he U11i versity of Mi,mesota and ].D. from the University of Alabama. He is presently !he chairman of the Alabama Stale Bar's Task Force 011 a Client Security Fund. Wh y the nee d for a Client Se cur ity Fun d? National stat istics developed in a 1981 study of the Nat ional Center for State Courts show that an average of three lawyers out of one thousand em· bezzle their clients' money. T here is no
11,r .'l/a!Nunnl.lJW)' ttY 67 procedure presently in the state of all subsequent terms will be for three yer against a person in the manner of Alabama to compensate clients for this years. defalcation or embezzlement of money. defalcation on the 1>art of lawyers. A proposed application form for reim orthe wrongful takingorconversion of Some lawyers object that compensat bursement has been prepared. Th is money. property or other things of ing a client is not solely the responsibil form must be completed by any indi value. ity of the legal profession. However. vidual seeking reimbursement from Notall losses are reimbursable under more and more. bar associations per the fund. While the form is quite the proposed rules. Examples of non ceive this responsibility as their own length)•, it attempts to elicit necessary reimbursable losses are those of a as is clearly evidenced by the existence information about the alleged loss, in spouse.child, parent .grandparent. sib of Client Security Funds in virtually cluding the date of the loss, the amount, ling. partner, associate or employee of every state. the lawyer involved and all facts relat the atwrney causing the losses: losses ILc annot be gainsaid that we depend ing lo the loss. Each application form covered by any bond, surely agree upon the tru st of our clients. Unfortu will contain the following language in ment or insura nce contract to Lheex nately, there may be cases where a few bold type: tent covered thereby: losses of any fi. attorneys breach tha t trust. Nonethe In establishing the Clients' Security nancial inst itution which could be re less, it is important tha t our profes Fund, the AlabamaState Bar Associa coverable under a "banker's blanket sion's reputat ion for honesty be main tion did not create norac knowledgeany bond" or similar insurance or surety tained and protected. A Client Security legal responsibility for the acts or indi contract: losses which are recoverable Fund will serve this function by pro viduallawyers in 1he practiceof law. All reimbursements of lossesof the Clien1s· from some other source and losses vidingre imbursement to clients whose SecurityFund s hall bea matter ofgrace which are ban-ed under applicable sta money or properly has been wrong in the sole discretionof the committee tute of limitations. [ully taken by attorneys admitted to administering the fund and not as a Once an application is received by practice in this slate. matter of right. Noclient o r memberor the committee. there are several op the publicshall have any right in the Clients' Security Fund as a third pany tions. The committee may, in its abso lute discretion. after investigation. re How wiU th e Proposed beneficiaryor otherwise. quire exhaustion of some or all civil Client Secur ity Fu nd The application form shall be sworn to Funded? remedies before processing or adjudi Be and executed by the claimant under cating the application or paying any At this time, the ant icipated means penalty of perjury. claims. If the accused lawyer is a of creating and funding the Client Se One may recover only for a "reim member in good standing of the Ala curity Fund is through the legislative bursable"' loss. "Reimbursable losses" bama Sta te Bar. the applicant's coop process. It is intended that legislation are only those losses of money or other eration in grievance proceedings by the will be dra fted and introduced grant property of clients of lawyers which Bar against such lawyer sha ll be a pre ing to the Board of Bar Commissioners meet the following tests: requisite to the grant ing of relief to explicit aut hority to esta blish a Client (a} The dishonestconduct which occa· such applicant from the fund. The Security Fund and to provide for its sioned the loss occurred on or after committee may require that an ap1>li· funding. Through this method, the the effective date or the rules estab cant prosecute or cooperate in appro Board of Bar Commissioners will have lishing the Client SecurityF'und . (b} The los.swas caused by the dishon priate civil proceedings against the ac needed flexibility in this important est conductof a lawyeracti ng either cused lawyer as a prerequisite to the area. asan attorneyo r as a fiduciary in the grant ing of relief of such applicant mailer in which the loss aroese. from the fund. (c) The lawyersha ll haved ied. beenad · The committee has the aut hority to How wiU the Fund Operate? judicated a bankrupt. been adjudi catedanincompe tent. beend isb,1rred hold such meetings and conduct such A Client Security Fund Committee or suspended from Lhe practice of investigations as it deems necessary in will be responsible for all proceedings law. voluntarily resignedfrom the order to determine whether the claim conducted on applications for reim practiceof law. becomea judgment is for a reimbursable loss. as previously bursement from the Client Security debtor or the plaintiff, shall have beena djudgedgu iltyof a crime,which defined, and to guide the committee in Fund. As proposed.t he Client Security judgment or judgments shall have determining the extent, if any, to which Fund Committee of the Alabama State been predicatedupo n the dishones1 the claimant should be reimbursed. II Bar will consist of seven lawyers who conducto r the lawyer. left the juris it is determined by the committee that are members of the Alabama State Bar diction or cannot be found or the the claim is clearly not for a reimburs Associat ion. Th e chairma n of the committee on Client Security Fund able loss. no further investigation shall committee will be the president-elect of shall have by its investigationd e termined that the claim is an ap need be conducted and such determi the association while the remaining propriatecase for consideration be nation will constitutea rejection of the six members of the committee will be causet he loss was causedby the dis application. If the committee deter appointed by the president of the asso honest conduct of a memberof the mines that it is necessary to hear the ciation. all members to serve without AlabamaState Bar Association. claimant and the attorney or to receive compensation. The initial members' Dishonest conduct would be defined other evidence on behalf of the clai terms will be staggered in length and as wrongful acts committed by a law- mant. then and in that event the com-
68 March 1984 mittee shall haw 1he authority 10 re· and such other factors as to the com amount of the reimbursement and the quest the ap peara nce of such individu miuee may seem jus t and proper. commiuee may bring such act ion as is als and the receipt of such additional T he rules will provide both a ma xi deemed advisable against the lawyer eYidence as may be required. In all mum amount which any one cla imant or the lawyer's estate. Prior to pay cases . the lawye r charged sha ll be may recover from the rund ar ising ment of t he claim, the claima nt shall given an opport unit y to be heard by the from an instance or course of dishonest be re<1uired to execute a subrogation commit1ee if he so requests . conduct and an aggrega te max imum agreement. The committ ee. in its sole discre amount which all claimants may re In connection with the proposed rules tion, is charged with the responsib ility cover arising from an instance or course establis hing a Client Security Fund. a of determini ng the amount of loss, if of disho nest conduct. brief pamphlet has been 1>repared for any, which any client shall be reim· Applications. proceedings and reports the bene!it of the public. Thi s pam· bursed. In making this dete rminati on, involving app lications for reimburse phlet is informat iona l and exp lains the the committee is required to consider ment are to be confidential until the Client Security Fund . why it was es various factors set fort h in the rules committ ee aut hori1.es reimbursement tablished , how it is finan ced. how it is which include the negligence, if any,of to the cla imant , except in limited si ad ministered, what losses are covered, the app licant wh ich contributed to the tuations desc ribed in the rul es. A and where a clai m is to be filed and loss. the comparati ve hardsh ip of the member of the committee who has or what happens to the cla im after it is client suffered by the loss. the total has had a lawyer-client relationship or filed. amount of reimbur sable losses in pre· financial relationship with a cla imant lt certain ly is desirab le to ass ure the vious years for which total reimburse or law yer who is the subject of a claim public I hat the Alabama Staie Bar As ment has not been made and the total cannot participate in the investigation sociation is concerned when lawyers assets of the fund, and the total amount or adjudicatio n of a claim involving mishand le the ir clients' funds. The es of reimbursab le losses of t he clients of that cla imant or lawyer. Absolute im tab lishment of the Client Security Fund any one lawye r or assoc iation of lawy· muni ty from civil liability for all acts discussed in this arti cle will demon ers . Fur t hermore, in dete rmining in the course of their official duties is strate t he Alabama State Bar's desire whether or not any payment will be extended to members of the committee to place in opera tion an effec tive made on the claim, t he committee may and staff persons assis tin g t hose procedure for dealing with this prob· consider the condition of the fund, the members. If reimburseme nt is made. lem. Hopefully. the need for payments natur e and size of the claim presented the fund sha ll be sub rogated in the from t he fund will be l'are. 0
Three Alabama and Federa l Trial Pract ice Form Books Availab le for Imme diate Sh ipmen t .. .
0 ALABAMA AND FEDERAL MOTION FORMS
0 ALABAMA AND FEDERAL ORDER AND JUDGMENT FORMS
0 ALABAMA AND FEDERAL COMPLAINT FORMS
Part of a ser ies of trial practice form books by Robert Sellers Smith and Joan McIntyre .
The price of each of these books is $59.95 plus postage and handling.
MADISON PUBLISHING COMPANY , INC . 223 EAST SIDE SQUARE HUNTSVILLE , ALABAMA 35801 (205) 533-5040
The A/qf>a,,,oUlwytr 69 ~bout Members ~mongFirms
About Member s the Defense Research Institute at The law firm of Wilkin s & Dru their annua l meeting held January han anno unces that Thoma s P. 0 1· At t he tenth annual meeting of the 23-25 in Palm Springs . Pierce was linger , Jr. , has become a part ner and National Conference of Appellate elected to the post after having com· that Robert D. J ohn s ton, Jr. , has Court Clerks, John H. Wilke rs on , pleted a three-year term on the insti· become associated with the firm. Of, Jr ., clerk of the Alabama Court of lute's Board of Directors . He will be fices are located at Hanna h Houses , Civil Appeals, was elected president responsible for overseeing the public 157,159 North Conception Street, of Lheo rganization. relations program of the national Mobile, Alabama. 12.000 member attorney association B. Dawn Wiggin s, formerly law during the 1984-85term or office. T he law firm of Leitman , Siegal clerk to the Honorable Daniel H. & Pa yn e, P.A., takes pleasure in T homas. U.S. dist rict judge for the announcing that W. Cla r k Wat s on Southern Distr ict of Alabama. has Among Finn s has become a member of the firm and become associated with the Pensac Ma s ton E. Martin, Jr. , and J ames ola, Florida law firm of Levin. War Thoma s L. Fos te,· and Harold C. Re illy have become associated field, Middlebrooks, Mabie, Thomas , 0. McDonald, Jr. , are pleased to with the firm. Offices are located at Mayes & Mitchell. annou nce their association in the 425 First Alabama Bank Building, John A. Car ey, formerly chief at· pract ice of law. Offices are located at Birmingham, Alabama 35203. torney of the State Oil and Gas Board 5 13 North Twenty-first Street, Bir Merdll, Por ch , Dos te r & Dil mingham, Alabama 35203. of Alabama. has become associated lon, P.A., takes pleasure in anno unc with the law firm of McDavid and T he firm of Ste aga u & Adam s is ing that Br e nda Smi th St edhan Noblin in Jackson. Mississ ippi. pleased to anno unce that William H. and Randall M. Woodrow have William R. Lane , Jr. , formerly of Filmor e is now associated with the joined the firm in the practice of law. Anniston, has become associated firm. Offices are located at 315 South Offices are located at Suite 500, with the firm of Jacobs, Robbins, Union Avenue in 0%ark (Phone 774. SouthT rust Bank Building, 1000 Gaynor, Burton. Ham1>p, Burns. Cole 2501) and Suite G, Executive Center, Quintard Avenue, Anniston. & Shasteen, P.A., with offices in St. Daleville, Alabama (Phone 598-8220). Alal>ama. Petersburg, Tampa, and Clearwater, Hand , Ar endall, Beds ole, Ken W. Gilchd st is pleased 10 Florida. Mr. Lane has also been ap· Grea ves & J ohn ston, 30th F'loor, announce to his colleagues his re· pointed Adjunct Professor of Law by F'irst Nationa l Bank Building, Mobile. Sumption of the general pract ice of Stetson University College of !..aw. Alabama, takes pleasure in announc law. Offices are at 6th Street, P.O. John D. Saxon, formerly counsel, ing that Kathr yn A. Ec ker lc in and Box 143, Ashville, Alabama 36853. U.S. Senate Select Committee on Henr y A. Callawa y have become Office phone, 594-7108: Residence Ethics, has become director, Corpo· assoc iated with the firm. phone, 594-7607. rate Issues , RCA Corporation . He will Tom F. Young, J r ., announces be the chief public policy ana lyst and Milton E . Bark e r, Jr. , and Ro bert P . B ynon, Jr., are pleased to the opening of his office for the gen· issues ma nager [or the New York· era l 1m1ctice of law (and in associa based broadcasti ng, electron ics. tele· an nounce the format ion or a 1>art ner sh ip for the genera l practice of law to tion with Cart er & Lewi s) at 604 communica tions, entertainment, and Sout h 38th Street. Birmingham. Ala aerospace company. be known as Bark er & Bynon and the association of Robert G. bama 35222. Donald F. Pier ce, of the Mobile Saund ers al the new address of: John C. Calh oun , Jr.. announces law firm of Hand, Arendall, Bedsole, Barker & Bynon, Attorneys at Law, the relocation of his law office to 1275 Greaves and John ston, was elected 2205 F'orestdale Blvd., Birmingham, Center Point Road. Birmingham. vice president of public relat ions of Alabama 35214. Phone 791-2021. Alabama.
70 Marr:111984 llarris ...~ llart'is l ilkl\:,. plc.\a:,;un.' .-\m:--ou1h l',·nt,•r, Mobile.Alah,1 ma The Tuscaloosa firm of Hubbard , in announcing1ha1 O. 1>.11rickliar· :16(i02. Tlw firm is, also. pk-ascd 10 Waldrop & Tanner is pleased to ris. t'orrnl·rad111ini~1 rat i,·l· a~:,;i~tc.HH announce thal Jam es L. Parris. announce that Juniu s F'. Guin Ill for .-\lab:111rnSup1\'lllt' C ,iurt l'hid .James Dale Smith , William H. and Robert P. Rey nold s have be Ju~tk,• l'.C. Torb<•rt.Jr.. ha~ bt.>conw Philpot , .Jr.. Ceor~e M. Si,nm er come partners of the firm. a~~o..-iat,'CIwi th till' firm in the gen man. Jr .. ,lnd Michael E. Up ,•ral prn..-1irt' of law. Offices,i re at 200 d1t11·ch ha\'e becomeassoc iated wilh Gaillard, Little, Hume & Sulli Soul h L111-r,•nwStr eet. Montgomery. the firm. van takes pleasure in announcing Alaixnna3\\ 11).1. that Mary Beth Mantiply has be The firm of Jaffe and Scein is come a member of the firm. Offices W. Sidney fuller. formerly a pleased to announce the relocation of are located at 258 State Street. Mo· partner in l he Andalusia firm of their offices to 22 Manchester SLreel, bile. Alabama 36601.Ph one 432-1832. Tiplt'r & Fuller. announces the open, London WIM iil'G. England. ing of his offices for the practice of Edwina E. Miller, Attorney at Harold T. Acke,·man is pleased la\\' at 218 South Three Notch Street. Law, announces the relocation of her 10 announce the association of Do· Suite Tll'o. The mailing address is office for the general practice of law P.O. Drawer 16:Ji . Andalusia, Ala nald L. Colee, .Jr .. former deputy t.o2909 7th Street, Tuscaloosa. Ala bama. Phone 222-~1 96. district auorney for Jefferson County, bama 35401. Phone 752-0053. for the general practice of law at Michael Scheuermann wishes Center Poim Village. 1220Ce nLer Do,t L. Hardeman , Nancy F. McClellan, and B. Greg Copeland 10 announce the relocation of his of, Point Parkway, Birmingham, Ala are pleased to announce the forma· fice 10 ~:l15 Downtowner LoopNorth, bama :15215. Mobile.A labama. Phone '.\43-5:184. lion of a partnership, Hard eman, Kenneth J. Gomany, former McClellan & Copeland, for the .Jerr y R. Barksdale is pleased to deputy districLattorney for Jefferson general practice of law and the open announce that Jam es D. Moffatt is County, is pleased Loannounce his ing of their offices at 502 Third now a partner under the firm name association in the general practice of Street. Southeast. Cullman, Alabama of Ba,·ksda le and Moffatt with of law with Harold P. Knight. Offices 35055.Phone 739-5087. are located in Suite 4 10. Frank Nel· fices located at 212 South Marion Owen & Simpson takes pleasure Street. Athens. Alabama 35611. son Building. Birmingham. Alabama 35203. in announcing that 01.iver J. Lat our, Jr., having wilhdrawn as a The law finn of McM illan & John W. Cooper , Auorney al member of the firm of Reams, Spra tling is pleased to announce Law, is pleased to announce the open· Vollmer.Phili1>S, K illion. Brooks. & that Michael G. Graffeo , formerly ing of his office at I Commerce Schell in Mobile, has becomea administrative assistant to the Ho· Street. P.O. Box 261. Valley Head. partner in the firm and the firm norable Richard Arrington. Jr .. mayor Alabama 35989. Phone 635-6555. name has been changed to Owens, of I he city of Birmingham, has be· Latour & Simp son . Offices are lo come associated with the firm in the Hogan, Smith & Alspaugh, cated al the Dahlberg Building, Bay practice of law. Officesa re localed al P.C.. takes pleasure in announcing Minette, Alabama 36507. 1550 First National. Southern Natu· that Step hen Shay Sa mples and ral Building. Birmingham, Alabama Jam es R. Pratt III have become Dennis N. Balske has been :l520:l.Phone 328-2927. members of the firm. The name of named legal dirt'Ctorof the Southern the firm is now Hogan , Smith, Poverty Law Center. succeedingJ ohn The firm of Arm brechc, Jack Alspaugh , Sample s & Pratt, P.C. L. Carroll, who has served in Lhal ca· son. DcMouy, Crowe. Holmes & Officesare located at 1000City Fed pacity since 1977.Carroll has begun Reeves is pleased 10 announce the eral Building, Birmingham. Alabama private practice with the Momgom· relocation of their offices lo 1300 35203. Phone 324-5635. ery firm of Mand ell and Boyd. 0
SMITH-ALSOBROOK & ASSOC. EXPERT WITNESS SERVICES DO YOUR COLLEAGUES KNOW Thank you for •Machine guarding Aboutq uick. efficient.and courteous ·Trafficaodden1 ,eoons1ruction yoursupport , Searches? •Tire consulling TELEPHONE •ln Tlttrill11bo,11a 1...at4')'t'T 71 They've made their move ... The Alabama State Bar Association has made a decisive move to strengthen the professional liability insurance pro tection available to Alabama lawyers. The Bar has endorsed a program that significantly expands liability cover - age at favorable rates based solely on Alabama lawyers' claims experience. Professional Liability Insurance, Inc. will administer the new insurance pro gram that combines the resources of two major insurers: Dependable Insur ance Company and Lloya's of London. Now it's your move ••• To find out more about the new pro fessional liability insurance prog~ contact your local independent insur ance broker or call Professional Liability Insurance, Inc. . . We have satisfied a whole world of p_r~ssional insurance needsbased ca e three keystones of effective insurance: KNOWLEDGE• INNOVATION• SERVICE ProfessionalLiability lnsuranc Inc. A divi.sio11of Zut: <01tF&;,-..n~,~ ;;;;~~ P. 0. Box 2287, Jafl"Deta a e venue, Wilmington, DE 19899 (800) 441-9385 • (302) 658-8000 vided without cost if an insureddieso r after a lawyer has been covered under the Lloyd's/De pendable program for five years, with the effect or converting this claims policy back to an occur rence form after this period. Othe r pol icy features include the preferred pol· Bar Endorses New icy period deduct ible versus the per in cident alternat ive. non-cancellation of the policy dur ing its term except for Professional non-payment of premiu m or deducti ble. defense coverage for most excluded acts, endorseme nts for many lawyer Liability Insurance related activities. and an incident dis covery notice provision which provides coverage even afte r the policy termin Program ates. Pre mium Cos ts The rates for the Lloyd's/Depe nd ab le coverage are extremely reaso n, ab le since they are based only on Ala bama losses and util ize individua l ver· susave rage reserv ing. Experience rate increases, if any, are governed by a by Duk e No rdlin ger St ern stated formula with the Bar having the right to exam ine reserves. Since the program has fewer steps in its rating scale. lawyers will have fewer auto matic annual rate increases tha n with other ava ilable insurers. A formula has been estab lished which will rel urn excess profits. arl ier this year the Alabama Programs Committee which included State Bar inaugurated its new a detailed analysis of proposals from Ris k Manage me nt Eendorsed professional liability s ix insurers. insura nce program. T his unique con The new endorsed program will con· cept combines significan tly expanded Th e New Poli cy linue lhe Bar's ris k ma nagement ef coverages wit h favorable rates tied T he Lloyd's/Depen dable policy pro forts which include the claims preven solely to Alabama's claims experience vides automat ic full prior acts protec· tion semi nars an d art icles in The A/a, plus possible pan icipation in excess tion which facilitates the switching /Jama Lawyer. Attorneys will still be program profits . Policies are issued from other insurance programs with· able to utilize the wats line individual th rough Dependable Insurance Com out a gap in coverage and in most in consultat ion service for concerns relat· pan y, a Best's rated A+ insurer, and stances without the need to purchase ing to claims prevention, insurance the reinsurance is thro ugh Lloyd's of an extended report ing endorsement coverages and claims repair. London. T he program is marketed by (risk tail protection) from the prior in Alaba ma atto rneys are urged to con independent Alabama insurance agents surer. Other policy features include a sider the new endorsed professional li and is managed by Professional Liabil broader definition or the insured, full ab ility insu rance program. They or ity Insurance, Inc., an admi nistrator personal injury protectio n, broad fidu their insu rance agents can obtain in experienced in legal malpract ice in ciary coverage, protection for innocent format ion by calling the Bar's ad min, surance. insureds in insta nces of excluded acts . ist rator. Profess ional Liab ility In T he need to explore alte rnative and automatic first dollar defense cov surance, Inc., at (800) 44 1-9385. 0 markets resulted when the Bar's pre erage which applies the deduct ible only viously endorsed carrie r made a corpo to loss payments. rate decision to limit its writings to T here is no penalty for refusa l to Duke Nordlinger Stem serves as the medical liability insura nce. T he new consent to a sett lemen t, an d both the Alabama Slate Bar's Risk Manager. program was endorsed by the Board of insured and the carrier must agree on Tlte individual attorney co11s11llatio11 Bar Com missioners after a t hree month the selection of defense counsel. The serviceca11 be utilized by Alabama law investigation by the Bar's Insuran ce extended reporting endorsement is pro- yers by ca lling (800) 237,8903. Thi!Ala/Nnua I A1u,•er by Rand olph P. Reaves and Robert L. McC url ey , J r. lncrea se in License Fees, One of Three ruary 7, 1984, the first day of the regular session. The bills Bills Introd uced b y Ass ocia tion Durin g were introduced in the House by Rep.Jim Campbell o[ Annis Regular Sess ion ton and in the Senate by Charles Langford of Montgomery. These additional funds are needed in order to continue to his regular session of the sta te legislature is an provide the level and quality of services we are so fortunate important one for the Alabama State Bar. It has to enjoy. Please join us in supporting these bills. T been seven years since license fees were raised, and despite extremely efficient operating procedure.s. inflation lndigcnt Defense F cc s has finally caught up with our organization. Also on tap for the regular session is a bill to make As you know, the State Bar operates fiscally as a depart significant changes in the indigent defense laws of the state. ment of the State o[ Alabama. However, its revenues arc At the recommendation of the Indigent Defense Committee placed in a separate fund and its operating expenses are and with the approval of the Bar Commissioners, a bill has paid out of that fu nd. The basic source of revenue is license been prepared which, if passed, will effect four changes in fees which presently account for 64% of the Bar's income. our current law. In the years prior to 1982 operating revenues consistently First, indigent defense fees would be raised to $50 per exceededex penses, and at the beginning or fiscal year 1982· hour for in-court time and $25 per hour for out-of-court 83 a healthy surplus of $184,757ha d been accumulated in time. T he $ 1,000 cap on indigent trials would remain, ex· the Stale Bar fund. However, due to general inflation and increased services, the State Bar sustained a substant ial Randy Rea,•es, Ala· operating deficit in fiscal year 1982-83, and a further deficit ba ma State Bar legis· is projected for the current fiscal year. The budget adopted lative counsel, and Rep· for fiscal year 1984·85 will exceed anticipated revenues by resentativeJi m Camp· approximately$46,000an d will result in a projected balance bell look over bar bills ,vhich have been intro• ofon ly$51,274 in the State Barfund at the end of that fiscal duce d durin g the 1984 year. Regular Ses s ion of the Obviously, something has to give. There appear to be legislature. three alternatives: cut services, increase dues or file under Chapter 11 of the Bankruptcy Code. None o[ these alterna tives is too inviting but the responsible course seems to be to raise annual license fees. T he Finance Committee of the State Bar recommended that bills be introduced in the legislature which would raise lhe annual license fee from $100 to$150and removeth e exemption currently granted to new members of the Bar so that lhey would be required to purchase licenses on October 1 following their admission to the Bar. These recommendations were approved al the January 20 meeting of the Board of Commissioners. Bills toefiecluate these changes were introduced on Feb- 74 Marti, 1984 cept in habitual offender and capital cases. In cases in we will complete t he moderni1.ation of the business organi· which a defendant could gel life without parole, or the death zation laws of our state and make them more compatibl e penalty, the new bill will allow payments of additiona l trial with each other. The Inst itute worked wit h t he genera l rees. ir app roved by the trial court. T he $1,000 ca p would premise that if a lawyer knows how to form and operate remain on such cases that were not actually t ried. under the Business Corporation law the same general law A third change involves the cap on ap pellate fees. Cur· shoul d apply in other . forms of business organizations ex· rently there is a Sl.000 maximu m for all state appellate cept where modified to meet particu lar differences and work. The proposed changes will allow an additiona l $1,000 purposes. in fees if certiorari is gra nted by the Alabama Supreme Attorn ey Yella Samfo rd of Opelika serves as chairman of Court. · the committee which consists of a number of distingu ished Another change involves the costs of ad ministe ring these practit ioners. Th e roste r members of the committee are as funds . A percentage of the funds being generated will be follows: paid to the State Compt roller's OHice in order to offset the Y ctta Samfo rd , chairman rising costs associated with indigent defense reimburse· Harold Albritto n, Andalusia mem . Pat Bumhan1 , Anniston Sidn ey Cook, Tuscaloosa Client Secu rit y Fund Penn y Davis, Tuscaloosa Ralph Gaines, Talladega A possibility for the regular sess ion is a bill to create a Bill Hause, Dothan client security rund. The final planning has not been done Ed Hines, Brewton on this bill and it may ha ve to wait unt il ano ther session. George Maynard, Birmingham Efforts will, of course, be made to suppor t t he endeavors of Ernest Potter, Huntsville the Alabama Law Inst itute, and partic ularly its planned Wat so n Smilh, Mobile revision of the state's non,profit corporat ion law. T he review that follows is taken, in part , from the preface of the Alabama Law lnst itute 's proposed Alabama Non· profit Corporation Act drafted by Pr ofessor L.B. Feld who Rev ision of Nonp r ofit Corporat ion Act served as report er for the committee. Pre se nted to Sta te Lawmak ers Th e curr ent Nonprofit Corporat ion Act is based on the 1952 Model Nonprofit Act (found in Chap ter 3of Title 10 of lhe Code of Alabama). This act is based on the 1964 Model he Alabama Law Inst itute will present to the l..egis· Nonprofit Corporation Act drafted by the commit tee on latureduring the 1984 Regular Session a revision of Corporate laws of the sectio n of Corporat ion, Banki ng an d T Alabama's Nonprofit Corporation Law. In 1980 the Business law of the American Bar Associat ion. It reflects a Legislature revised the Alabama Business Corporation Act, policy of paralle lism in that it follows as closely as permitted the [irst major revis ion in corporate law in twenty .five by the differences in subject matte r correspond ing provi· years. Last year t he Legislature revised the Proressional sions of the Alabama Business Corporation Act, Alabama Corporation Act and the Limited Partn ers hip Law. With Code Section 10-2A· l et. seq. Provisions in regard to stock t he cons iderat ion of the Revised Nonprofit Corporatio n Act are omitted an d certain var iat ions of practice are permitted for Nonprofit Corporations that are not customary or ap· propriatefor business organ izations, but otherw ise this Act is delibera tely and closely paralle l of the provisions of the Alabama Business Corporat ion Act. It follows that deci· sions of the Alabama Business Corporation Act , or com· Randolph P. Neaves, a graduale of !he mentar ies on it, wh ich great ly outnum ber those with re· Universityof Alabama and U11iversi:Jy gard to Nonprofit Corporat ions, should become increas of Alabama School of /.,aw, practices ingly helpful in the interp retat ion and application of this with the Mo11/go11wryfirm of Wood, Act Mi11or& Parnell, P.A. He presenlly The most difficu lt decisions of policy and drafting this servesas legislative co,mselfor the Ala Act dealt with t he question of applicability, centralized bama Slate Bar. filing. name reservation and annual reporting. T he opinion of the draf t ing committ ee was that the ease and s implicity or the present filing procedur e outweighed the adoption of an y para llelism with the Business Corporation Act. Thus t he proposed Act makes no provision for filing of an nual Robert L. McCur/ey,Jr ., director of lite reports by Nonprofit Corporat ions domestic or foreign, nor Alabama/.,aw Jnslilttf e, receivedhis B.S. does it provide for annua l reports to be filed wit h the Secre· and ll.B. degreesf rom the Universityof tary of State's Office. Alabama. In this regular coltmm, Mr. The revision provides that an original and two copies of McCurleyw ill keepttS upda letl011 legisla· lion of interest a11dimf)orfa11ce lo Ala, bamaallomeys. (Co11ti11ued 011page 97) The Aloba1,ro IA1())'l!r 75 greeof concurr entjuri sdicl ion between State Workers' Compensation laws and the Federal Longshoremen 'sa nd Har borworkers' Compensation Act.2Given t hese developments, the question has freque ntly arisen for the substa ntial number of Alabama workers who were Commentary: covered by both the Alabama Workers' Compensat ion Act' and the Federal Act, whethe r those workers who were Co-Employee Immunity covered by the more liberal benefits under the Federa l Act• could also take advantage of t his concurr ent jur isdic Among Alabama tion to pursue t he co-employee dam ages suit cause of action provided by the common law of Alabama - in ad Longshoremen dition lo the compensation benefits under the Federal Act. Th is is also an important issue for longsho remen and and Harborworkers harborworke rs in the s ignificant nu m· ber of other slates which allow co employee liability for damages similar to that recognized in Alabama by Granthamw hich include, for example. Arkansa s. Maryland and Missouri.• On Januar y 27, 1984, the Alabama by G1·cgory C. Buffalow Supreme Court resolved this questio n and ruled that S1111S hip permitted only a limited degree of conc urr en t LHWCA·State jurisdict ion so tha t the LHWCA co-employee immun ity provi sions must take precedence over con· flict ing co-employee damages liability permitt ed by Alabama common law . Fil/i11gerv. Foster,(No. 82-297,Januar y 27, 1984)(hereinafter referred toas Fil In trod uction Alabama Act, with damages actions li11ger).T he holding of the Alabama against supervisors, various other co Supreme Court was as follows: ollowing the 1978dec ision of the employees and, in certai n circ umstan {T/he co11c11rrc11tj 11risdiclio11/or pur Sup reme Court of Alabama in ces, workers' compensat ion insu rance suit of benefitsunder a state:~work - Grantham u. De11ke,359 So. 2d carriers.1 1nrn 's cqn1pe11sofio11scltt·nu • does 110/ F includeco 111,no11lntosuits for do,n ages 785 (Ala. 1978), the previous ban on Subse<1uent ly, in 1980. the Sup reme againstco,cn1pl())•e, 1s. co-employee damag e suits under Ala Court of the United States indicated in bama Workers' Compensat ion Law was Sim Ship, Inc. 'U. Pe1wsy/va11ia,447 Id .. slip 01>.al 9. lifted. Thu s, after 1978, Alabama U.S. 715, 65 L. Ed.2d 458, 100 S. Ct. It should be recognize 76 1\tard1 1984 Supreme Court by recognizing the pre vessel"" can easily app ly to workers in 1975). This was event ua lly altered by emptive effect of the co-employee im inland areas customarily engage The Alaban,a lawyer 77 viously paid under state compensation schemes.19 In the former Fifth Circuit and in Alabama, as noted in Holland and Baker Tow Boat Co.. supra, aJ. though there could be an election of remedies, provided the parties had reached a "binding compromise agree· ment." no such election, presumably even with a binding com promise agree· ment, could be made if there was a finding of exclusive jurisdiction under the LHWCA.20 Thus, the election or remedies doctrine was only applicable whereLHWCAand state law coverage was "concurrent ," i.e. in the twilight zone, or where state law 011/yapplied." Otherwise, where distinctions could be found, supplemental benefit awards BINDERS we re free ly per mitted under the LHWCA giving credit, however, for • Attractive, made of previous state benefit payments." imitation leather with Later on. however, the election or gold impr inting. remedies possibility was virtually elim· inated by the Fifth Circuit in Landry v. • Du rable, will keep Corlso11MQQring Se rvice,643 F.2d 1080 The Alabama Lawyer (5th Cir. April 27, 1981), and by the access ible wh ile stor ing Supreme Court of the United States in one year's issues. Thomas v. Washi11gto11Gas Light Co.. • C lear pocket for 448U.S. 261,65L. Ed.2d 757.100S. Ct. la be ling year 2647(1980 ) (hereinafter referred to as and volume Washi11glo11Gas). In Landry, the basis for the Firth Circuit's holding that an election of remedies was "irre levant" was the United States Supreme Court decision in Sun Ship. The Fifth Circuit also determ ined that, absent an "in· disputable Texas preclusion of recourse Only $6.50 including to LHWCA remedies . . . there is simply postage no basis for finding an election of remedies between mutually exclusive alternatives."•3 Landry was further based on the holding of Sttn Ship that ~------1 workers "wi ll genera lly be able to make up the difference between state THE ALABAMALAWYER and federal benefit levels by seeking P.O. BOX 4156 relief under the Longshoreman's !sic] MONTGOMERY. AL 36101 Act. if the latte r applies."" o Please ente r my order for binders Chan ges in LHWCA a nd se nd to the address below. My check in Sta te Concurr ence, if any, payment is enc losed . Affecte d by Sun Ship? NAME------~ ln Sun Ship, the Su preme Court or the United States attempted to clarify ADDRESS------the exact implications of the removal of the previously quoted language from CITY ______Section 903(a) or the LHWCA which had been respons ible for the develop· STATE______ZIP______ment of the so-called "tw ilight zone" cases. The court found that the dele· ~------] 78 March 1984 1i on or this language reaffirmed its T he LHWCA-St at e Conflict Supreme Court with a similar finding analysis in Ca/bed,. supra. and held as The conflict bet ween state workers' of partial preemption of the inconsist follows: compensation law and the LHWCA, ent aspects of state law which conflict [W]orkel's who commencet heir ac· where each are applicable, is derived with the co-employeei mmunity provi lions under State law willgenerally from the provisions of §933{i) of the sions in §933(i) of Lhe LHWCA. be able to makeu p the difference be tweenStale and Federal benefit lev, UIWCA wh ich grant co-employee The Filli11gerdecision relied on Lhe els by seekingrelief u nder the Long, immunity and the provisionsof §§905{a) prior Fifth Circuii cases construing shoremcn·s Act.ir the latterapplies." and 905(b)of the UIWCA which allow §933{i) (Sec Part VI) and quoted exten damage s act ions against a limited sively from the legislative history of Thu s, given the reaHirmation of Ca/ number of third persons other than §933, Id., slip op. at 8. The court was bec/1, •• and this language, it would ap co-employeeso r the employer.'" also influenced by an earlier decision pear that, insofar as concerns state With respect toco-employeeimmun- from the Supreme Court of South Ca and federal "benefit levels," Stw Ship it y, the l,HW CA provides l he following: rolina which reached the same result means that employeesare free to make even though arising prior to Sun Ship. up the difference in benefits without The right 10 compensation or bene· fits under this Acts hallbe the exclu Smalls 11. Bl0ckt11011.239 S.E. 2d 640 regard LOan election of remedies possi sive remedyt o an employeewhen he (S.C. 1977). S11wl/swa s summarized bility, with em1,loyers receiving a credit is injured ... by lhe negligenceor by the Alabama Court as follows: "T he for previous state law or i,HWCA wrongor anyo ther person or persons Supreme Court of South Carolina held in the same employ. payments, against the supplemental the LHWCA was the 'sole and exclu benefits awarded under either system. 33 U.S.C. §933(i). Thus, given this co sive remedy' of a plaimiff suing a co The court has also indicated in dictum. employee immunity, the LHWCAis in employee in a negligence action." Fil· that the hypothetical. indisputable direct conflict with Cran/ham and the li11ge-r. slip op. at 7. preclusion of recourse to the LHWCA laws of the sta les noted above which Filli11gerwas also based, in large noted in Lam/iy, will not be given ef permit workers to sue fellowe mployees measure, on a reading of Sim Ship and fect and will, instead. be preempted." for damages. Washi11g/011Gas which concluded that Thu s, it is suggested that the im1,act of This conflict which is presented these cases did not consider the possi· Su11Ship was to eliminate the uncer would appear to be a matter for analy bility for overlapping compensation tainty with respect to election of reme sis under trad itional preemption prin plus damages awards between two ap dies bet ween the 1,HWCAand state ciples. Thu s. whether §933{i)should be plicable compensation schemes. As the compensation benefits, and thus to given preemptive effect over this in· Alabama Court stated: provide for a freedom of access be consistent state law should depend. NeitherSu " Ship, supm, nor 1Vosh t ween the federal and state compensa generally, on whether there is a se i11glonCos LightCo .. ::,~upra. ho\vevcr. tion benefit schemes in the extended, riousdegreeofconrlict between federal involvedthe preciseq uestion before J)OSt·1972areas of coverage of ihe Fed and state law. and whet her the Con us today - whether there can be eral Act. gress has ex1,ressed an unmistakable concurrent jurisdiction to a,vard Thr oughout Su11S hip and La11dry. intent for the F'ederal law to take damages to an injuredplain tiff. the courts have limited their analysis. precedence in the field or to have full Fil/i11ger, slip op. at 6 (Em1ihasis in however. to the permissible degree of preemptive effect. See generally Flor original). Thu s, considering this issue overlap between concurrent or con· ida Lime & AvocadoCrowers. In c. v. for the first time. and in light of the sistent federal and state schemes with Patti, 373 U.S. 132, 10 l.Ed.2d 248 statements in Slln Ship that, in the respect to compensation benefits.•• (1963) and Pe1111sylvania v. Nelson. 350 proper situation, federal law would Signiricantly. nowhere do these cases U.S. 397, 100 L.Ed. 640 (1956). The preempt, for example, a state compen puq,ort to deal with a potential conflict most recent decisions to restate these sation exclusivity clause, Id., slip op. between inconsistent rederal and state principles are Local 926 v. /0111!:S.460 at 7, the Alabama Court concluded remedies, for example: the conflict be U.S. - · 75 l .Ed.2d 368. 103 S. that, as a matter of preemption, con tween the inconsistent provisions with Ct. __ (!983).and Ex ParleAlabama curr ent LHWCA-State juri sdiction respect to damage suits against co OxygenCo .. Inc.. 17 ABR2032(May t:l. applied only lo benefits and not employees and other third parties. 1983). damages: Thu s. it is believed by this writer and \Ve are sensitive to the statement was recognized by the Alabama Su The Fillinger Dec ision and madei n $ 1111Ship, supra.that a state preme Court in Fillinger (See Part V) Suggeste d T reatment of may apply its workers· compensa than in Sun Shi{). the court did not This Iss ue tion scheme to land basedi njuries consider or could not 1,ossibly have had As noted. the Alabama Supreme that fall within the coverageor the LHIVCA,but we believet he concur in mind the quest ion in Alabama and Court has been the first court to con rent jurisdiction for pursuit of bene other similar states - whether there sider this issue in a published decision fits und~ra state's workmen's com may continue to be some areas of mut subsequent to $1111 Shi/),30 and in the pensationscheme does not include ually exclusive inconsistent provisions writer's view, other courts confronted common Jaw suits for damages of the LHWCAand state law with re with th is issue should followth e inter againstco-em ployees. spect to co,employee damages actions. pre1ation of Sun Ship by the Alabama Id .. slip op. at 9 The }lla/xlnu1l..awyer 79 Although not specifically relied on in §§902(12) and 904 of the Federal Act, eral Act and case law noted above, Fillingeras a basis for the holding, this are not considered to be damages.31 which disti nguishes between damages view is in line with the trad itional dis This distinction between compensa· and benefits, the choice or terminology tinction between "benefits" and "dam· tion and damages in the LHWCA has by the United States Supreme Court ages" in theLHWCA and in prior Fifth also been recognized by the Fifth Cir which limited the holding of Sun Ship Circuit case law considering it. This cuit in Joh11sonv. American Mutual to a discussion of overlapping "bene distinction provides additional support liability Insurance Co.• 559 F.2d 382 fits." is of significance. Consec1uently, and justification for the Fillingerana l· (5th Cir. 1977) which stated "[t]hey it shou ld be clear that the Sun Ship ysisand asserted interpre tation of Sun differ as night differs from the day." decision was intentionally limited 10 Ship. Accordingly.a brief discussion is Id. at 390. the narrow c1uestion presented, involv provided. T he Federal Act also specifically ing an overlapof benefits only bet ween In the law of workers' compensa· regulates the damages that may be consistent provisions of Pennsylvania tion,and in theLHWCA, there isa well claimed by covered employees. In do law and the LHWCA with respect to recognized and limited meaning for ing this, as noted in Jolz11son,the Fed· compensation ''benefits." For that "compensation benefits," based on the eral Act specifies that the liability of an reason, it is suggested that there should contrast recognized in the LHWCA employer for "compensation" identi· be no doubt that the Alabama Supreme and throughout workers' compensa fied in § 904 is in the place of damages. Court's reading of Sttn Ship in Fillin tion law, between (A) compensation or Case law constru ing the LHWCAhas ger is correct that Su11Ship does not disability "benefits," based on workers' also recognized that no such damages sta nd for the broad proposition that compensation schemes. and (B) "dam may be recoveredagainst the employer there is overall concurrent jurisdiction ages," based on traditional tort liabil "directly or indirectly." Thus, in Perez for all remedies between the LHWCA ity concepts. Sec e.g., 2 Larson, Work v. Ayra Nalio,zalShippi11g line, Lid., and Sta te law which would include men 'sCom/,e11S<1lio11law. §§57 .10,57.11 468 F. Supp. 799 (S.D N.Y. 1979), aJ. concurrent jurisdict ion bet ween incon (1981). firmed 622 F.2d 575 (2d Cir. 1980),an sistent damages provisions of each of As noted in Larson, supra.such bene employer covered by the LHWCAwas these schemes. fits or compensation are awarded only prevented from indemnifying third Further support for the Fillinger by virtue of the unique species of liabil, parties from damages obtained against analysis is provided by the discussion ity created by stat ute in various work· them since this would, in effect, im of J>artial preemption in Srm Ship in ers' compensation schemes.Thus, there pose indirect liability on the employer which the United States Supreme Court is a clear difference between workers' in violation of§ 905(a) of the LHWCA. specifically left open the potential for compensation "benefits'' and "dam· Similarly, the Fifth Circuit has stated such "part ial preemption" in dicltw1 ages." The latter are generally awarded with respect to employers and their which noted, where LHWCA-Statecon· only as a matter of tort liability, and LHWCAinsurance carr iers, "ft]here is nicts should arise, the least disrupt ive are not generally thought of as part of a completely absent from the Act any approach would be to find a partial compensation benefits scheme, Larson. indication that either entity was to be preemption of the inconsistent aspects supra. The LHWCA,as noted, has also liable for both compensation and dam· of state law.G2A lso. in a subsequent recognized this distinction as the ages." Johnson. supra. at 390. Thus. United States Supreme Court decision "compensation" benefits definecf in given the precise language of the Fed- allow ing success ive compensation Who says your Continuing Education has to be a chore? ALABAMAA TI ORNEYSM EMO provides weekly digests of decisions of the Supreme Court , Court of Civil Appeals, Court of Criminal Appeals and acts of the Legislature . Subscription Rates: Law Firms $138.00 - Sole Practioner $108.00 ALABAMA ATIOR NEYS MEMO • P.O. Box 1117 • Columbia, Tennessee 38402 80 awards under the Virginia and District formula, for assessing a damages award actions, Keller, supra, at 1242, an d of Columbia Acts, Washi11glo11Gas, su · in a §905{b) third party action. Signifi that, even if state law purported 10 al· pm. an even clearer limitation on the cantly, the court found that because low a co-employee damages suit , if the permissib le extem of successive com t he LHWCA involves a special class of defendant co-employees were also co pensation awards was made in wh ich workers protected by federal law. the vered by the LHWCA, they must re a plurality opinion specifically noted para moun t inte rests of uniformity of ceive the benefits of their federal rights that incons istent damages act ions may principles under the Federal Act re· to co-employee immunity in §933(i). not be allowed.33I ndeed, it may be ob qu ired that a uniform federa l st andard Chilly, supra. at 1152 and Nations. su served that this state ment alone with· under the LHWCA, rather than the pra, at 586. out further elaborat ion. is evidence of asserted state standards, shou ld As noted, the prior, contra ry state the fact that the United States Su apply." Thus, it is suggested t hat am· case law. arose in Louisiana and Texas. preme Court did foresee that, in cer pie support for the Fillinger ana lysis The Louisiana Supreme Court in Poche tain sit uations, notwithstand ing the can be found not only in the decision found that the LHWCA remedies and ava ilability of concu rrent benefits, itself, but also in related LHWCA case state law remedies were intended to be federal preemption would be necessary law and in tra ditional workers· com· concurr ent and, thus, based on a free when other provisions of federal and pensat ion concepts. election of remedies between the two, state compensat ion Jaw were in clear state law benefits as well as damag es conflict. The Washing/onGas dec ision could be added to the compensat ion P1·evious Case Law Involving benefits received under the LHWCA, should also be considered as precedent State Law Conflicts with und er the LHWCA since the District of Poche, supra, at 1221. §933( i) Co-Empl oyee This analysis in Poche, however, Columb ia Compensation Act which Ind em nity was involved in that case, is based on was recognized by the Alabama court and incorporates by reference the terms It should be noted that other courts in Fillingerto be faulty as it was pre· of the LHWCA. See D.C. Code §§501- cons idering this issue, in cases outs ide mised on the "elect ion of remedies" 502 (1968 ). The possibility of exclus iv of Alabama , aris ing prior to Sun Ship doctrine which had since been virtu· ity given a conflict between incons ist· and Fillinger,have not been uniform in ally eliminated by the subsequent de· enc provisions is also implicitly recog· the ir treatme nt of it. Two state cour ts, cisions in Su11Ship, Washing/011Gas nized in La11dry... Although t he Ala· and three federa l court decis ions in the and Landry. See Fillinger.s lip op. at 6. bama Supre me Court cited Washi11g/011 Fifth Circuit have considered it. T he Although not discussed in Fillinger, Ga.,in Fillinger,this aspect of it per· state court decisions are Pochev. Av· Pochei s fur ther questionable because ta ining to damages awa rds was not ondaleShipyards , foe., 339 So. 2d 1212 it allowed two wholly incons istent re· discussed. (La. 1976), appeal dismissed sub nom. suits even under an election of reme IL shou ld also be mentioned that, al· Territo v. Poche, 434 U.S. 803, 54 L. dies rationale. For examp le, the Poche though not discussed in Fillillger.the Ed.2d 60, 98 S. Ct. 31 (1977); Umbeha· court held that one of the claimant s, suggested resolution of this conflict gan v. Equitable Equipment Co., 329 Mr. Adams. could be proven (on re· and the Filli11gerresult, by finding par · So. 2d 245( La. App. 1976);and}olmson ma nd) to have elected the LHWCA sys· tial preempt ion of co-employee damage v. Texas Employers flls1'ra11ceAssoc., tern to the exclusion of any state reme· act ions does not resu ll in a wholesale 558 S.W. 2d 47 (T ex. 1977). The Fifth dies - presumab ly even those which elimination of all potent ial third-party Circuit decisions are Hughesv. Chilly. would not be supplementa l under Sutt damage remedies by Alabama long· 415 F.2d 1150 (5th Cir. 1969); Keller v. Ship. However, Pochealso held tha t the shoremen and harborwor kers. Instead, Dravo Ccrp.. 441 F. 2d 1239 (5th Cir. other claimant s. a widow and children as noted. §905(b) of the Federal Act 1971). cert. den. 404 U.S. 1017, 30 L. of Mr. Poche, had made an election of would contin ue to allow damage ac· Ed. 2d 665, 92 S. Ct. 679 (1972); and remedies in favor of state law com pen· tions against certain negligent third Nations v. Morris, 331 F. Supp. 771 sation benefits (and damages ) to the parties . (E.D. La. 1971), affirmed 483 F. 2d 577 exclusion of the LHWCA. Furt her j ust ification for Fillinger, (5th Cir. 1973),cen.den.4 14 U.S.1071, Significa nt ly, suc h a voluntary not relied on by the Alabama Supreme 38 L. Ed. 2d 477, 94 S. Ct. 584 (1973). wa iver of LHWCA benefits by the Court. can be found in yet anot her de· There was also a discussion of the Poche family is exp ress ly disa llowed cision, i.e. the United States Supreme preclusion of a co-employee damages by §9l 5(b) of the Federal Act which Court precedent in jo11es& Laughlin suit against a covered employer's provides as follows: SteelCorp. v . Pfeifler,51 U.S.L.W. 4795 LHWCA insura nce carrier in}olmson, No agreement by an employee to Oune 15, 1983), which supports the supra. waivehis right to compensation under principle of giving preempt ive effect to Each of the prior state court deci· this Act shall be valid. 1he LHWCA in a conflict between in· sions declined to find LHWCA preemp· 33 U.S.C. §915(b). There was no dis· cons istent damages provisions of the tion of sta te co-employee damages ac cussion, however, by t he Louisiana Federal Act and state law . In the}o,u1s tions, but the federa l court cases State Court in Poche of the effect of & La11ghli11decis ion. the conflict con· reached an opposite result finding, for §915(b), which was clearly in conflict sidered was whether to app ly a state example , that §933(i) simply abolished wit h the court's decision. law formu la. or a different LHWCA inconsistent stateco-e mployeedamages The Texas Supreme Court's cons id· 1'J1eAlaha,na La11,1yer 81 eration of the §933(i) issue is also sub with respect lo the coverage and pre statements that successive damages ject LOcritic ism. Similar to Poche,Lhe emptive effect of the LHWCAinvolves claims may not be allowed. it is sug· Texas court in }o/111so11,found that in an interpretation of federal statutes, it gested that when other courts consider the LHWCA. Congress had not in· would appear that the federal court this issue, a partial preemption of the tended to preclude the operation of decisions on point should carry more inconsistent state law, giving effect to state damages law. As noted in the dis persuasive weight as authority.•• co-employee immunity of longshore sent, however, such a reading of the men, should be allowed just as was LHWCA requires one to ignore the Conc lu sion recently done by the Alabama Supreme clear statement of Congressional in· Perhaps all of the cases with a result Court. tent in the LHWCA that "liability of an differing from that of the Alabama Su To decide otherwise would result in employer prescribed in Section 904 of preme Court in Fi//i11gercanbe distin a new twilight zone of maritime but this title shall be exclusiveand in place guished by the fact that they arose local employers who would be exposed of all other liabilityof such employer 10 prior to the United States Supreme toa series of multiple and inconsistent the employee . .. "Johnso11 , supra,at 54 Court decisions of S1111Ship, /011(!$ & liability involving damages and bene· c1uoting 33 U.S.C. §905 (Emphasis in Laughlin and WashillglOtlGas which fits for which it would be difficult to original) (Keith, J., dissenting). As the providea more recent evaluation of the assess the proper award of credit. if dissent also observed, "li]n order to post-1972 degree of LHWCA·State any, and which would, in the writer's achieve this result, it is necessary for concurrence and the uniformity re opinion, contravene or upset the series plaintiff to excise from the Act the pro quired by the LHWCA.G iven the Ii· of trade-offs or compromises in the visions of §905 . . . " Id. mited degreeof concurrence allowedin federal scheme. In sum, the unique Thus, it is submitted that these S1111Sh ip, i.e. concurrent jurisdiction provisionof Alabama common law and state court cases outside of Alabama with respect to the ability to make up elsewhere allowing one employee to have ignored the conflict between the the dif(erence between benefit levels sue another would appear to be pre· LHWCA co-employee immunity in only, and given the even more recent cisely the type of legal balkanization §933(i)a nd inconsistent provisions of requirement of preeminence of the and local variation that Congress in· state law. These cases would also ap LHWCAoverstate law with respect to tended to preclude by imposing a uni· pear to ignore the clear expressions of the formula for computing an award.of form scheme of compensation for the an intended preemptive effect in Perez, damages against third parties, and the special class of workers covered by the supra, and §905(b), with respect to at UnitedStates Supreme Court's further LHWCA. o tempts to impose direct or indirect lia· bility for damages on an employer, in addition to the compensationfor which Resolvethem he is liable under §904 of the Act. The state law decisions prior to Fillinger withthe exper1s at also chose to ignoret he precedent from Disputeswaoner.ffohns-lnglis. Inc. the Fifth Circuit, precisely on point, which was recognized and applied in Fillinger,which found that the incon· utth roughcomple x sistent state damages law must give -Ccon structioncla imswi th way to the co-employee immunity in Wagner-Hohns-lnglis. the world's leading consultanton §933(i). It should therefore be clear constructiondispu tes. that the better view of the impact of Wagner-Hohns-Jnglisp rovides §933(i) on stale Jaw, where each are theindependent ex pertiseyou applicable. is the one most recently ex· needt o resolve construction problems. pressedby the Alabama Supreme Court in Fil/i11gerwh ich,as noted, recognized the "serious conflict" between federal and state law which necessitated the Formo1t info,m ation, mail tnrsa,upon10 court's holding: wag11tr• hohns• Inglis• In<. 3500Fletcher Avenue Wecan perceiveno greater conflict than that whichwou ld be presented if weallowed th isemployeetosuehis Tampa,Fl.3:3612 •••••••••••••••••• co-employee because he was land· !lllcelac:IIIGns Name ______based maritime worker, and a mari· MountHolly, NJ time worker injuredo n a navigable Washington,DC Firm------waterwaywo uld be precluded from KansasCi ty,M O LaCrescenta. CA Address ------ maintainingsuch a suit ... SanF rancisco, CA Mandeville, LA City ------St ate ___ Zlp ___ _ Id., slip op. at 9. In any event, reg-ard· Phone______less of Fillinger, because this question Ala l Marci, 1984 FOOTNOTES \1978).re1 ·cr,;cd642 F.2d 807(5 th Cir. 1981). pre·en1pt 1h e entire state <..'OflllX'nsat1(>1t ('.:<· •Fora lhoroughdiscussion of (:r,11tlh1ou, and modified in part on rch<·aring.6-55 F.2d 86 tlush •ity clause. rather tha n to 1>rc-e1npt the subst"<1uent ca.ses con.struing it. S<.-cl' .g .. (5th Cir. 1981) (further exu:11sio11of cover c1ui rc state compensation statute as aJ>pel• Con1n,cnl. Elr.rlion a11,JCo·l! 1npfqyt-e In,, age>.ce rt. deni<'()455 U.S. 9'l7. 71 L. Ed.2d lant i;u~ e~.t:;." Su,r Shit,. ;,;11/)ra.al 65 L. 11111nily"nder A (alm111aI lltirknwn ':i· Cn111/>('1t· 472, 102S . Ct. 1292 ()982). E The A/aban11:, IAu;)-er THE INTEREST RATE ON MATTHEW BENDER CHARGE ACCOUNTS ISA NICE, ROUND FIGURE. Ourextended terms payment plan gives you more purchasingpower. 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Sll,000-$12,999...... $675 Ci1y State_ Zip__ Anda financial one, too. $13,000-$14,999...... $775 I Telephone i; • L ••• ••••••••• •••• • • ••• J GJJarGJJrief s Bankruptc y sectio n being berland School of Law in l974. Puttin g clie nts in touch formed Prior to his appointment he was Do you want to make more mo T he Alabama State Bar Com associatedw ith the Birmingham ney? For the small sum of $25 you mittee on Bankruptcy Law has de law firm of Levine & Levine. He can join the Alabama State Bar termined that there is a need for replaces Judge Arnold Drennen, on Lawyer Referral Service, which the district civil bench, who re the formation of a new section of refers paying clients to you. The the state bar to be named the tired December 31, 1.983. service is advertised in telephone Bankruptcy and Commercial Law Johnson is a graduate of the books across the state and a toll Section. The committee is solicit University of Alabama and re free line is available for prospec ing your membership. eeived his law degree [rom Cum tive clients to call in free of charge. The organizational meeting of berland School of Law in 1974. Presently less than 250 attorneys the section. and ils first election of Prior to his appointment he was in have signed up for the service officers,w ill-occur at the Alabama the private practice of law in Bir statewide and there are several State Bar Annual Meeting to be mingham. He takes the place of counties where no attorney is on held in Mobile.July l2-l4. The Judge Robert 1-1. Gwin, on the dis the referral list. For more informa trict criminal bench. who also re committee has organized an educa tion write or call Gale Skinner, tional program, with nationally tired on December 31, 1983. Lawyer Referral Secretary. Ala recognized speakers, to be pres bama State Bar. P.O. Box 671, Eight s uspe nd ed for ented at the meeting. The new Montgomery, Alabama36 10 l. section will participate in educa noncomplianc e Phone: 269-1515o r 1-800-392-5660. tional matters. legislative mallers, On January 17. 1984,t he Su judicial matters, and act as a voice preme Court of Alabama sus of the state bar commercial and pended eight Alabama attorneys bankruptcy lawyers. who failed to comply with the Additional attorneys T he bankruptcy committee in mandatory continuing legal educa admitted vites you to join the section and tion requirement adopted by the The following new attorneys asks that you send the initial dues court on May 4, 1981. Those sus· were admitted to the Alabama bar in the amount of $15. The pay pended did not report credits for in December. Their names were ment of dues will assist the bank the 1982year . not received in time to be included ruptcy committee in providing Noncomp liers were contacted with other Fall 1983admittees high caliber quality programs at several times by the MCLE Com listed in the January l984 issue or the annual meeting in Mobile. mission and the Disciplinary The Alabama lawye r. They are Please reply to: Robert P. Rey Commission of the bar who in William R. Caughran, Jr., Des nolds, P.O. Box 2427.Tuscaloosa , formed them of the consequences Moines, Iowa; Coyne Drew Dema Alabama 35403. Phone: 345-6789. of not earning or reporting hours. ray, Birmingham: Donald Eugene Each delinquent was given the op Given, Tuscaloosa, Timothy Char portunity to show cause for non les Halstrom. Montgomery, Gre Dis trict court judges compliance or obtain the proper gory Hascal Hawley, Birmingham; ap pointed number of CLE credits. Peter Scott Mackey. Mobile; F. Ge ln January. John H. Alsbrooks, Those suspended, al any time rald Maples, Pascagoula, Missis Jr., and Orsen L. "Pete" Johnson. within three mo,1ths of the sus sippi; James William Martin.Jr ., were appointed district judges for pension, may file an affidavit with Birmingham; Roderick K. Nelson, Jefferson County. the Disciplinary Commission indi Birmingham;Julia Angeline Spain, Alsbrooks is a graduate of the cating compliance. [f satisfactory, Jasper; Sandra Kathryn Tullis. University of Alabama and re the commission will enter an order Birmingham; and Michael Owen ceived his law degree from Cum- reinstating the attorney. Vann, Birmingham. Thi!A loba»1alawyer 85 ministrato r filed a Section 1983 action for compensatory and punitive dam· ages and a wrongful death act ion against the City and the police officer. The 1983action was dismissed on mo· ~cent tion of the defendants and the plaintiff appealed. by John M. Milling, J r. In a case of first impression in the and David B. Byrn e, J r. <'i)ecisions Alabama State courts. the Supreme Court adopted the reasoning and hold· ing of the District Court in Brown v. MorganCo1111/y, 518 F.Supp. 661 (N.D. Ala.1981), and affirmedt he trial court's grant of summary judgment as to the plaintiff's 1983 claim for compensa· Recent Decisions of th e and was returned to her husband by a tory damages ror personal injury and police officer some time later. The pain and suffering of the deceased Alabama Court of state's evidence tended to show that prior to her death. The Supreme Court Criminal Appeal s the defendant was involvedin a sale of noted that where the injured party dies a microwave oven on approximately as a result of the wrongful act, Ala, P robation revocat ion req uire s the same date. There was 110 evidence bama law only permits a wrongful th e trial jud ge to se t out in presented at trial that the microwave death action and only punitive dam· writing the re asons for oven sold by Oliver was the same mic· ages are recoverable. Further, because revocation rowave oven taken fr om Mrs. the City was sued and because the King v. Stale. lst Div. 608 Oanuary McBride. United States Supreme Court has re· 10.1984). The defendant was convicted A unanimous Court of Criminal Ap cently held that cities are immune of various offenses and placed on pro peals reversed Oliver's conviction and from punitive damages under Section bation. He was subsequently charged found that the state utterly failed to 1983. the Supreme Court held that with a new offense. make out a case of buying, receivingor summary judgment as to the City on The trial judge, after a hearing. concealing stolen property. In reaching the plaintiff's 1983clai m was proper issued an order revoking the defend· its decisionthe court relied upon Parker both as to the compensatory as well as ant's probation. On appeal. the de v. State, 386 So.2d495. 596(Ala. Crim. the punitive damages claimed. fendant raised the issue that his pro App. 1980). In Parker, supra, the Court of Criminal Appeals said: bation revocation must be reversed be· Domestic re lation s ... cause the trial judge did not make a "1'here ,nus/ be.son,e evidence of <:Om· disabled child du e s uppo r t writte n sta tement as to the evidence mon characteristics other than color. beyon d minority relied upon and the reasons for revok· make. and model ... in order toestablish ing probation. Judge Taylor, writing identity . . . The identi ty of the property Ex par/e: Brewing/on (Blair v. Bre· for a unanimous Court of Criminal received or concealed with that alleged wing/011), 18 ABR 683 (December 16. in the indictment to be stole n mus t be Appeals, reversed and remanded the establ ished beyond a reasonab le doubt 1983). The Supreme Court granted case to the trial court. Judge Taylor 10 su pport a conviction . . . " certiorari and seizedt he opportunity to found that: overrule Reynoldsv. Reynolds,149 So.2d 770 (Ala. 1963), which had he.Id that "A sea rch of the record reveals that the trial judge did. in fact. fail to prepare Section 30·3·3. Ala. Code1 975, applied a written statement of his findings. In only to minor children, and therefore revoking probation, the trial judge 11m.il Recent Decisions of the that a trial court was without jurisdic· make a written stat ement as 10 his find· lion to order a parent to support an ings ." Taylorv. Slnle.405 So.2d 55 (Ala. Supreme Cow·t of ad11//c hild. T he trial court in this case Crim. App. 1981): Bors/ v. Slate. 377 did not follow Reynolds,and ordered So.2d 3(Ala. Crim. App. 1979). (Empha · Alabama - Civil sis the Court's. ) the father of a permanently disabled child to support the child past the age Close bu t no cigar ! Sect ion 1983 claim for of minority. The Supreme Court recognizedthat Oliverv. Stale, 8th Div. 875 Oanuary compensato r y damages . . . doe s not survive the majority trend in the United States JO. 1984). The defendant was convicted is to recognize an exception to the of buying, receivingorconcealingstolen Carter v. Cily of Birmingham. 18 common law rule that a non-custodial property. The victim testified that a ABR 669 (December 16, 1983). The parent has no obligation to support his Sears Kenmore microwave oven was decedent was shot and killed by a Bir· adult child. The exception arises when taken from her home on March I, 1982. mingham police officer, and her ad· the adult child is so mentally and/or The Alaba,110Lawyer 87 physica lly disab led as to be unable to initia l issue was whether the plaintiff recognized the Trade Secrets Doctrine support himself. The Court recognized was a "prevailing party" under Sec· in Alabama. Restatementof Torts, Sec that while Section 30-3-1, Ala. Code tion 1988 in view of the fact that relief tion 757 (1939). The Restateme11/pro 1975, does not express this limitation , was granted on the state constit utional vides that one who discloses or uses t he legislature intended that support claim rather than the federal claim. another's trade secret without privi be provided for depe11denlchildren re The Supreme Court held that the lege is liable if (a) he discovered the gard less of whether dependency re plaintiff was entit led to attorneys fees secret by improper means, or (b) his su lts from minority (age) or from phys · since the federal and state claims "arise disclosure or use constitutes a breach ical and/or mental disabilities which from a common nucleus of operative of confidence, or (c} he learned t hese· render the child incapable of self-sup facts" and since the relief could have cret from a third person with notice port beyond minority. just as easi ly been based upon federal that it was a secret and that the third claim. person's disclosure of it by improper T he court was also asked to deter· means or that the t hird person's dis Civii proce dure ... mine whether the tria l court properly closure of it was a breach of his duty to mo tion to recons ider applied 011v. Evere/1,420 So.2d 258 the owner, or (d) he learned the secret post-trial motion does not (Ala. 1982), which held that neither the with notice that it was a secret and suspe nd time for appeal mayor nor the city commiss ioners are that its disclosure was made to him by liable in damages on account of their mistake. Su11shineHomes , Inc. v. Newlon, 18 exercise of their quasi-judicial powers. Comments to the Reslaleme11/note ABR 658 (December 22, 1983). In this The Supreme Court held that 011was that the exact definition of a trade sec case, the court was asked to consider not properly applied because Ott pro· ret is not possible. Furthermore . a de whether the plaint iff's motion for re vided for a qualified immunity for termination of what const itutes trade cons iderat ion of the trial court's order damages, and an award of attorneys secret is a quest ion of fact for the court. granting the defendant 's Rule 59 mo fees is an award of costs,not damages. A trade secret may consist of any for· tion for a new trial tolled the time for mula, pattern, device. or compilat ion of taking an appeal. In a case of first im informat ion which is used in one's pression, the Supreme Court held that Torts . .. business and which gives him an op it did not. T he coun reasoned that a municipality immun e for portunity to obtain an advantage over motion to reconsider a ruling on a Rule unlawful imp risonm ent competitors who do not know or use it. 59 motion is not itself a post-judgment motion contemp lated by the Alabama &ye/le v. Cily of Mobile.18 ABR 375 Rules of Civil Procedure. While a Rule (December 2, 1983). In this case, the Supreme Court refusedto expand the 59 motion tolls t he time for taking an Rece nt Decisi on s of the appeal .a subsequent request , by what · scope of Section 11-47-190, Ala. Code 1975. to include actions against a mu ever label, seeking the trial court's re· Sup re m e Court of consideration of its ruling on the former nicipality for unlawfu l imprisonment. Alabama- Crimin al Rule 59 motion, does not operate to In two recent decis ions, the court re· further toll the time for the appeal. fused to exte nd the scope of the statute to include actions against a mun icipal· Formal ar raignmen t . .. ity for un lawful arrest and malicious can be waived so metimes prosecution. Th e Supreme Court rec· Wallsv.Stale. 18ABR514(December Section 198 3 action ... ognizecl that althoug h its recent deci· 9, 1983). The defendant was originally plaintiff du e attorney s fees sions have not addressed t his specific under sec tion 1988 issue, an action for un lawful impri indicted and arraigned under a two count indictment for trafficki ng in sonment is premised upon the exist · Davis dll>laDmnar's Tea House v. marijuana and unlawful possession of Everett, 18 ABR 585 (December 22, ence of an illegal arrest, and therefore, 1983}.The plaintiff was denied an al· municipal immunity from unlawfu l coholic beverage license and sued the arrest act ions necessarily implies mu· Mayor and the Commiss ioners i11their nicipal immu nity from unlawful im prisonment. official capacities alleging equal pro Ourlast NamePuls Us F irs! tection and due process violations under for- YourInformation Needs the Alabama and United States Con· Torts ... Cltalon ·Text, · Specfallzed stitutions. T he tria l court found that Reference Books the defendants had violated the Ala tra de sec rets doctrine recognized Yourrepresentative In Birmingham and bama Constitution and ordered them Northern Alabamais SteveWells . to issue a license to the plaintiff. T he Drill Paris and Service Compa11y, Pleaseca ll collect. t rial court denied the plaintiff's claim Steve Wells btc. v.joy Ma11ufacl11ri11gCo., 17 ABR 3501 Granny White Pike for damages and attorneys fees, and 3780 (September 23, 1983). In a case of Nashville. TN 37204 the plainti ff appealed this ruling. The first impression, the Supreme Court 615·29 7-1355 88 March 1984 methoqualone. In a pretrial conference Rece nt Dec isions of th e The defendants were charged with on the date of trial. the original indict· Supr eme Court of the arson and moved to suppress all the ment was nol-prossed with defendant's evidence seized in the warrant less consent. A substituted indictment was Unit ed States search on the grounds that it was ob· served on the defendant, apparently in 1ained in violation of their rights under Arso n inv est iga tion not open court , but no formal ar raignment the F'ourth and F'ourteenth Amend occurred and no plea was entered. exemp ted from th e ments. The Michigan trial court de wa rrant requir ement Thereafter, both sides announced nied the motion lo suppress on the "ready'' and the case proceeded to Michiga11 " · Clifford, No. 82-357 grounds that exigent circumstances trial. The jury returned a guilty ver Oanuary 11, 1984).In a plurality opin· justified the search. On appeal, the dict for the offense of trafficking in ion, the Supreme Court concluded that Michigan Court or Appeals found that marijuana. where reasonable expectations of pri no exigent circumstances existed and The Supreme Court of Alabama was vacy remain in a fire-damaged house, reversed. called upon to decide whether arraign administrative searches into Lhecause Justice Powell held that where rea ment and plea can be waived by a de and origin of a fire are subject to 1he sonableexpectationsof privacyrema ined fendant by failing1oobjec1until after a warrant requirement of the Fourth in a fire-damaged premises, adminis jury returns a verdict. A unanimous Amendment absent consent or exigent trat ive searches into the cause and Supreme Court of Alabama ruled that circumstances. origin of a fire are subject to the war, arraignment and plea cou Id be waived The defendant's private residence rant requirement of the Fourth Amend under the circumstances presented. was damaged by an early morning fire ment absent consent or exigent cir· Justice F'aulkner in reviewing nearly while they were out of town. Firefight cumstances. The plural ity opinion a century and a half of precedent found ers extinguished the blaze at 7:00 a.m .. reasoned that there were especially only one case which squarely addressed at which time all fire officials and po· strong "expectations of privacy'' in a the issue. Ferna11dew11d Whitev. Stale, lice left the premises. Five hours later. private residence and that the defend· 7 Ala. 51 I (1845). a team of arson investigators arrived ants retained a significan1 privacy in, Justice F'aulkner'sopinion cites with at the residence for the first time to terest in their fire-damaged home by approval the following language quoted investigate the cause of the blaze. reason of their request to the insu from Femandez and Wlzite: The arson investigators entered ihe rance agent lo secure the house. residence and conducted an extensive The Supreme Court in suppressing It is not indispensable 10t he regular the fruits of the warra ntless search of ity of the conviction. thal the accused search without obtaining either con should be formallyarraigne d. If he is sent or an administrat ive warrant. the basement and upper areas of the advisedof I he offense with which he is Their search of the basement disclosed defendants' home further refined the charged,and is prepared.w ilhout hear· two coleman fuel cans and a crock pot distinction between administra tive and ing1he indic1ment rcad.1oansweri1,he attached to an electrical timer. T he ar· criminal searches. The Coun held: may plead. Here, it seems,tha t 1hepri· sonerswere in Coun. and whenthe so son squad determined that the fire had ''Where a ,van·ant is necessary Lo licilor announced 1he State ready to been caused by the crock pot and timer search fire-damaged premises. an ad proceed wi1h the case. their counsel and had been set deliberately. After ministralive warrant suffices if 1he answered.1ha11 heyw ere also readyfor se izing the evidence found in the primar)'object of the search is to deler 1rial. This amounts 10 a recogni1ion, basement. the investigators extended mi11elhecattsea11d origin o/lhe/ire, b u1a Lhal they were the personsc harged in criminal searchwarrant , ob1ainedu pon the indictmemin the case called. and their search to the upper portion of the a showingof probableca use, is required were prepared 10 defend 1hemselves house where they found additional ev· if 1he primaryobjecl of 1he search is 10 againsl iL.T/Jis U'llS e(fui lltil e11tlo. au idence of arson. ga1her evidenceo f criminal activity."D i11la11 1, a suffic ienl subslilul e/or au llrrllig11u1e11I iu 1/1,e Jorn-,." (En1pha· sis ours.) Justice Faulkner further reasoned that the holding in Fer11a11dez a11d While also met the due 1>rocess test enunciated by the Supreme Court in DavidB . Byrne.Jr .. Carla11dv. Waslzi11g/011.232 U.S. 642, a member of /he 34 S.Ct. 456, 58 L.Ed. 772 (1914).Th e Montgomery law firm of Robison & Supreme Court in Garia11d stated that : O. Belser,· received his "Due processof law ... does not re lllJ B.S. and LL.B. de- quire 1hc S1a1e1 0 adopt any particular greesfrom lite University of Alabama. formof procedure, S(> longas i1appears He covers lite criminal law J)Orlio11of that the accused has had a sufficient sig11ifica11/rece,i/ decisions. notice of the accusa1ion and an adc· quatc oppor1uni1y 10 defend himself in lhe prosccu1ion." 1'ht 1llt1/J(in1aUlteytr 89 cle opportunities 22-24 april - DRUGL IABILITY The Registiy. Scottsdale.Atizona --- Sponsored by: DefenseResean:h Institute Credits: 15.7 Cost: $365/members: 2-3 $390/noomembers FEDERALPRACT ICE For Information:(4 14) 272-5995 Cumbertand School of Law.Birmingham march Sponsoredby: Cumberland Institute for CLE For Information: (205) 870.2865 NEGOTIATIONAND DISPUTE RESOLUTION Lawcenter. Tuscaloosa Sponsoredby: AlabamaInst itute for CLE S-7 Credits: 18.9 Cost: $300 BUSINESSREORGANIZATIONS UNDER 9 friday For Information:(205) 348-6230 THE BANKRUPTCYCODE Hotel Intercontinental.san Diego PSYCHOLOGYOF A TRIAL Sponsoredby: AU·ABA MontgomeryCivic Cente r Credits:11.1 Cost: $360 Sponsoredby: AlabamaState Barduri ng 23 friday For Information: (215) 243-1600 Midye;lrMeeting Credits:2.0 EQUITY PRACTICE For lnfonnation: (205) 269-1515 First AlabamaBank. Birmingham Sponsored by: BirminghamBar Association Credits: 3.2 Cost: $15/members: $20/nonmembers 13-15 For Information:(2 05) 251·8006 CAPITALF INANCE Atlanta Sponsoredby: National HealthLawyers 28 wednesday Association Credits:13.5 Cost: $400/members: BANKINGLAW $410/nonmembers Birmingham-JeffersonCiv ic Center For Information:(202) 833-1100 Sponsoredby: AlabamaInstitute for CLE Credits: 6.3 Cost:S65 For Information:(205) 348-6230 15-17 BANKINGAND COMMERCIAL LENDING LAW 29-30 Fairmont.san Francisco COMMUNICATIONSLAW Sponsoredby: AU·ABA Mayflower.Wash ington.DC 6 friday Credits: 11. I Cost:$425 Sponsoredby: ALl·ABA SOUTHEASTERNTR IAL INSTITUTE For Information:(2 15) 243-1600 Credits:11.4 Cost:$335 Birmingham-JeffersonOvic center For Information: (215) 243-1600 Sponsoredby : AlabamaInst itute for Cl.E Cost:$65 18-22 For Information:(2 05) 348-6230 FORENSIC EVIDENCE 30 friday Airport HolidayI nn. Ortando PRACTICALSKI U.S FORT HE Sponsoredby: NationalCollege of District i'JIEWLAWYER 9-10 Attorneys Birmingham-JeffersonCivic Center FEDERALPRACTICE Cost: $360 Sponsoredby : AlabamaYoung Lav.yers and CumbertandSchoo l of Law.Birmingham For Information: (713) 749-1571 AlabamalnstiMe rorCLE Sponsoredby : CumbertandInstitute for CLE Credits:6.8 For Information: (205) 870.2865 For Information:(205) 348-6230 21-22 ALABAMAWORKMEN 'SCOMPENSATION 12-13 Birmingham-JeffersonCivic Center 31 saturday HAZARDOUSWASTE LIT IGATION Sponsoredby: AlabamaDepartment of LAW DAYCLE PROGRAM DoralI nn. NewVOii< City IndustrialRelations CUmber1andSchoo l of Law. Birmingham Sponsoredby: PractisingLaw lnst iwte Credlts:I 0.8 Cost:$75 Sponsoredby: CUmbei1and Institute for CLE credits: I 2.0 Cost:$350 For Information: (205) 261-2868 For Information: (205) 870-2865 For Information: (212) 765-5700 90 March 1984 PRODUCTSLIAB ILITY 17-19 Hyatt Regency.Atlanta may Sponsoredby: DefenseResearch Institute CONSTRUCTIONCLAIMS AND DISPUTES For Information:(414) 272•5995 cambfidge.Massachusetts Spoosoredby: Nielsen-WursterGroup Credits:23.5 Cost: $575 For Information:(212) 686-9044 13 friday EFFECTIVENEGOT IATIONAND CONFLICT 3-5 RESOLUTION HolloranHouse. New York City SOUTHEASTERNCORPORATE LAW Sponsoredby: American Bar Association INSTITUTE Credits:a2 Cost: $175/members: TheGrand Ho tel. Pointaear $200/nonmembers Sponsoredby: Alabama Institute for CLE For Information:(312) 567·4675 Credlts:1 3.2 Cost: $225 For Information:(205) 348-6230 14 saturday 6-12 DEMONSTRATIVEEVIDENCE: TAC TICS AND TECHNIQUES BASICCOURSE IN TRIALADVOCACY Washington.D.C. HolloranHouse. New York City Sponsoredby: American Baf Association Sponsoredby:Assoclation of Trial Lav,:yersof Credits:7.5 Cost: $175/members: America $200/nonmembers Credits: 52.0 For Information: (BOO)424·272.5 For Information: (312) 567·4675 26-28 8-18 OILAND GASLAW AND TAXATION CONSTRUCTION CLAIMSAND DISPUTES Dallas PrincetonClub. New Voll< City 18 friday Spoosoredby: Southwestern Legal Sponsoredby: Nielsen-WursterGroup Foundation YOUNGLAWYERS ANN UAL SEMINAR Credits: 23.S Cost:$575 For Information: (214) 690-2376 SaJ\destin For Information:(212) 686-9044 Spoosoredby: AlabamaYoung l.av,yers and Alabamalnstltu tefor CLE For Information: (205) 348-6230 CIVILPRACTICE AN D LITIGATION IN 10-12 FEDERALAND STATECOURTS FUNDAMENTALSOF BANKRUPTCY LAW Mills House.Cha~eston Minneapolis 24-26 Sponsoredby: ALl·ABA Sponsoredby: ALl·ABA APPELLATEADVOCACY Credits: 19.4 Cost:$360 Credits:2 1.B For Information: (215) 243-1600 BostonUn iversity School of law For Information:(215) 243-1600 Sponsoredby: American Bar ASOOciation Credits:20.9 Cost: $42.5/members: $450/nonmembers 10-20 For Information:(312) 567-4675 SOUTHEASTREG IONALTRAI NING SESSION 25 friday UNC.Chapel HIii OiA l. GAS ND MINERAL LAW Sponsoredby: NationalI nstitute for Trial QualityInn. Mobile Advocacy Sponsoredby : AlabamaInstitute for CLE Credits: 101.4 Credits: 6.3 Cost: $65 For Information:(612) 292·9333 For Information:(205) 348-6230 17-18 31 thursday WORKERS'COMPENSATION 24th ANNUALTA X $€MINAR Knicl The Alabama lawye, 91 Regulation 4.l.12 Activitie s dealing ,vith la,v office auton1ation and management may be approved for one•half credit ))er hour of in· st ruction. Activities designed to sell serviceso r cquipmenlor to enhance Jaworrice p rofits will not beapproved . CLE The adoption of th is regulation fol lows two years of evaluating such cou rses. It is believed Lhat the new pol· 9'2 Alard, 1984 - The National Institute for Trial Advoca cy Announces Intensive Sessions in TRIAL ADVOCACY NITA's TENTH ANNUAL NITA's SIXTH ANNUAL SOUTHEAST REGIONAL SOUTHERN REGIONAL May 10 - 20, 1984 June 13 - 23, 1984 Chapel Hill , North Carolina Dallas , Texas NITA's Regional Programs are intensive trial advocacy training semJnars design ed for practitioner s with less than five years of trial experience. The programs have student-faculty ratios of approximately 5 to l and are taught by teaching teams of experienced trial lawyers. trial judges and law professors. Although demonstrations of trial skills are performed by members of the teaching team and lectures on evidence and trial techniques are presented. the primary method of instruction is to have individual lawyer-st udents perform trial exercises which are videotaped and constructively critiqued by the teaching team. For a detaile d brochure . fill out. clip. and return: ~------r------Narne------ Add~"Ss------~ Addre~ ------~ Please send me lnfonnatlon about NITA'• S0utheut Regional. Please send me infonnatloo about NITA'S Sou~rn Region.al. Prof. Joseph Kalo Prof. Fredertck C. Moss University of North caro11na Sout hem Methodi st Unl\ by Mary Lyn Pike Under the leadership of President Commission has been given the task of ces plans, participation by attorneys is William B. Hairston, Jr ., lhe Alabama reviewing and evaluating the Code of subject to the standards set out in the State Bar has experienced a revitaliza· Professional Responsibility and the Code of Professional Responsibility. t ion of its committee activity. A record Rules of Disciplinary Procedure. Within Subcommittees have been formed so number of members are serving on the scope of the Commission's charge that the committt>e can make recom· fifty committees. Committee meetings is the recommendation of amendments mendations regarding the organized have averaged nine per month since and possible chan ges in the Bar's dis· bar's role in such plans. August 1983, and attendance has av· ciplinary efforts. Alex Jackson, ass is· eraged over six ly percent per meeting . tant general counsel, will serve as staff T he Committee on the Alabama liaison to t he Commission. State Bar Foundation , Inc. will Chai rman Wade Morton, Jr., pres· propose the establish ment of the "Ala· ented the report of the Task Force to The Committee on Prepaid Legal bama Law Foundation. Inc." to the Eva luate Law ye r Advertising and Serv ices has met and reviewed the Board of Commissioners at its March 8 Solicitatio n in Alabama to the Board history and status of prepaid legal ser· meeting . As proposed. the non·profit of Bar Commissioners at its January vices plans in Alabama. Chairman Ro· corporation will qualify as a tax·exempt 20 meeting. The committee informed bert Sasser passed on information organizatio n under Section 50l(cX3)of the Board that it found that no valid gained through his att endance of the the U.S. Internal Revenue Code of distinction could be made between al· third annual Educational Conference 1954, organ ized exclusively for charit· lowing honest and truthfu l legal ad· on Prepaid Legal Services in early No· ab le. educationa l and scientific pur· vertising in print media and not allow· vember 1983. Although the Alabama poses. ingit in broadcast media. After review· Depart ment of Insurance is responsi· The Professional Econom ics ing the committee's extensive report, ble for regu lating prepaid legal serv i· Committee has met and formed sub· the Board voted to recommend to the Supre me Court of Alabama amend · ment s to the Code of Professional Re· sponsibility relative to Disciplinary Rule 2. to provide for the inclusion of electronic media advertising. Acting on the recommendation of the Task Force on Disciplinary Functions of U1e Alabama State Bar , the Board of Bar Commissioners recent ly approved the appointment of the Permanent Code Commission. Members of the Bankruptcy Law Committee met in Januar y and, among other topics , discussed the formation of a new bar sect ion. Pictured are David With Hugh Nash as chairma n and Jones, Taze Shepard, Bob Moorer, Ted Hall. Bob Rubi n, Romaine Scott, Norborne Stone as vice chairman , t he Richard Carmody (chairman), and Larry Voit. 94 March 1984 committees on law office automatio n, Pres ident Hairsto n has expanded economics an d efficiency, and estab his charge to the Committ ee on Cor lishment of a law practice . T he com recti onal Ins titution s and Proc e mittee is charged with assis ting the dur es to include its working with the members of the Alabama State Bar in Departme nt of Crimina l Just ice at the maintaini ng the economics in the ir University of Alabama in Birmingham law practices throug h CLE programs, and the Alabama Departme nt of Cor The Alabama Lawyer,loca l bar associ rections to evaluate the supervised in· at ion s, and the 1984 Annu a l tens ive restitut ion program recently Meeting. authorized by the Alabama Legisla ture. T he goal of the stu dy is to deter On Janua r y 10, 1984, Pres ident mine the advantages and disadvan Hairsto n appointed a Medical Liiti tages of the program as an instru ment so n Committee for the Alabama Sta te of punishment and/or rehabilitation of Bar. Tennent Lee (chairman), Boyd those convicted of criminal activities. Reeves, Sta ncil Starnes and Cliff Emond are to meet with the Medical At its meeting on Marc h 8. the Board Associatio n's counterpart committee of Bar Commiss ioners will cons ider a to discuss matte rs of interest that .af request by the Commi ttee on Bank fect both professions. According I to rup tcy Law that an Alabama State President Hairston . "The institut ion Bar section on bankruptcy and com· of this committee gives recogni tion to mercia l law be estab lished. Persons in the fact t hat a substantial part of the terested in becoming cha rter members pract ice of law and of medicine is con· of the sect ion, should it be approved , cerned with the problems of persons will find pertinent informat ion under who are in need of the combined serv i "Bar Briefs." If approved, the organi ces of a lawyer and a physician, and zational meeting of the section and its that the inte rests of both the public first election of officers will occur at and the individual are best served by the annua l meeting of the State Bar. the cooperative efforts of both disci July 12-14, 1984. in Mobile. plines." T he En e rg y Law Committe e, Chairma n Tom Boggs and members under the leadersh ip of Tom DeBray. of the Committ ee on Local Bar Ac has take n on two tas ks for 1984. tiviti es and Se r vices have under· Members of the committee will con· taken the task of polling county bar tribute an article on the nuts and bolts assoc iatio ns regarding t heir current of various energy law topics for publi· level of act ivity, to be followed by the cation in the July 1984 issue of this recommendat ion an d implementat ion journa l. In an effort to meet an educa· of efforts to revitalize less active asso tiona l need. the committee, along with ciations . The committee will also seek one of the prima ry CLE providers. will to stre ngthen the relations hip between undertake the sponsors hip of a coal the State Bar and local bars. law conference. Suggest ions for speak ers and topics are welcome and should At its meeting on January 20. the be forwarded to Chairman DeBray at Board of Bar Commiss ioners approved P.O. Box 4189. Montgomery . Alabama proposed legislation submitted by the 36101. Indi ge n t D e fen se Co mmitt ee, autho rizing the use of part of the Fair A confidential questio nnaire seeking Tr ial Tax Fund to offset the cost of informat ion and guidance [rom Ala administer ing the fund. T he proposed bama's dist rict. circuit, and appellate i bill also increases at torneys' fees for judges has been distrib uted by the !3 indigent defense cases by twenty five Committ ee on M ee't in g Unju st percent. At the same time, the Board Criti cis m of Bench and Court s . authorized the disseminat ion of uni · T he Committee hopes to learn what -~ form guidelines for attorneys ha ndling problems exist, how those problems indigent defense cases and a simplified are perceived by the members of the .. fee declaration form, also developed by .. judiciary. and how they might be help· the committee. fully addressed by the Bar. 0 -.. 95 Escambia County Bar Association Officers of the Escanibia County Bar Associat ion for 1983·84 are : President: John Thaddeus Moore President -elect: James E. Har t, Jr. Secretary/T reasurer: William R. Stokes.Jr . The Escambia County Bar is spearheading a move to renovate the second noor of the Escamb ia County Court · house. The local bar has discussed this matte r with the Escamb ia County Commission, and it has agreed to hire an architect todetermine the feasibility of enlarging the second floor of the courthouse to add a new dist rict courtr oom, district court office an d new law library. Plans are also being made to move the public defender's office onto the Barbour County Bar Association second floor of the cour thouse. The goal is to locate the courtr ooms and all judicial offices on the same courthouse In October 1983, new officers were elected to serve the floor and provide much·needed additional space for judicial bar association serving the Thi rd Judicial circuit. They are administration, as follows: President: Jimmy S. Callon Marsha ll County Bar Associa tion Vice president: Louis C. Rutland Secretary/Treas urer: Tommy Gaither The following are officers for the local bar association in the Twe nty.Seventh Judicial Circuit: President: Franklin J. Allen II Vice president: Clark E. Johnson Ill Secretary/T reasure r: TJ. Carnes Mont gomer y County Bar Assoc iation The Montgomery County Bar Association has continu ed to provide excellent monthly luncheon programs and at· tendance by our members has increased with each meeting. Wanda Deverea ux is to be commended for these most inter · esting and informative programs. The special guests at our October 19, 1983, luncheon were the Honorable John C. Godbold, the Honorable Frank M. Johnson, Jr., an d the Calton Honorable Paul H. Roney of the Eleventh Circu it. Also present was the Honorab le Edward S. Smith of the United On Friday, April 6, 1984, the Barbour County Bar Associ States Coun of Appeals for the Federa l Circuit.J udge Smith was silti ng as a specialjudgeon the Elevent h Circuit which atio n, with the assistance of the City of Eufaula School held court that week in Montgomery. Each of these four System, will host the Supreme Court of Alabama. The cour t will convene at 9:15 a.m. in the Eufaula High School gym judges gave a short and informati ve talk on matte rs pertain ing to the affairs of the Elevent h an d Federal Circuit nasiu m and will hear arguments in two cases. It is antici· Courts . pated that approximately seven hun dred st udents will at · Prior to our October 1983 meeting. our association hosted tend each of the two cases argued. The session will be open a cocktai l dinner in honor of the judges of t he Eleventh to the public and the judges will explain procedure as the sess ion is in progress. Circuit. T his affair was held at the Sheraton Riverfront and was attended by approximately eighty members of our association. Covingto n County Bar Association Our November 23, 1983, luncheon meeting was jointly Th e Covington County Bar Association held its annu al held by the Montgomery County Bar Association and the Montgomery Trial Lawyers Association. Honora ble Tru· meeting in November 1983,and the following were elected officers for the 1984 year: man Hobbs, United States district judge, was the luncheon speaker. Judge Hobbs' report and comments on the trials President: Earl V. Johnson and tribu lations of U.S. district judges was war mly re· Vice president: Ti mothy B. Loggins ceived and was of great benefit to those members of the Bar Secretary/Treas urer: Linda S. James who practice in the federal syste m. 96 March 1984 Larry Kloess was program chairman for the December The MontgomeryCo unty Bar Association'sspecial activ 21, 1983, meeting. The association had its annual cocktail ities increaseddur ing 1983with a Law Day cocktail party in hour prior to the meeting. This was a most impressive lieu of the traditional banquet, an improved annua l bar· meeting wherein Larry presented a compositep icture of all beque, receptions for both retired and newly elected and/or Montgomery County Bar presidents since 1930. A distin appointedc ircuit judges. a receptionfo r the FederalCo urt of guished past president gave brief remarks on the practiceof Appeals judges, etc. The luncheon meetings during 1983 law and the status of our association for each decade since were the best ever. and this was the direct result of the 1930. These remarks and anecdotes were thoroughly en· efforts of Wanda Devereaux and her excellent program joyed by all. George Jones talked about the 1930's, Jack selection. Crenshaw about the 1940's,J ack Capell about the l950's, Fellow lawyers from surrounding counties are urged to Bill Mooreabout the 1960's,Oakley Meltonabout the !970's come to our monthly luncheons. arter calling our associa and RichardJorda n about the 1980's.W e had approximately tion's headquarters, 265-4793,for reservations. The meet· 105 members attend our December luncheon. ings are held on the third Wednesdayof each month at the The Montgomery County Bar Association hosted a recep Whitley Hotel. o tion onJanuaryS, 1984, in the foyerof the Supreme Court of Alabama, in honor of and following the investiture of Bob - submilled by Elle/ A. St:re11•s,Jr. Esdale, our new supreme court clerk. The annua l meeting of the Montgomery County Bar As· sociation was held on January 18, 1984.Bi ll Hairston. presi dent of the Alabama State Bar Association, was our guest speaker. Officers chosen for the year 1984 were: Henry C. Chappell.Jr., president; David B. Byrne.Jr., vice-president; and James R. Seale, secretary-treasurer. Wanda D. Deve reaux, J. Floyd Minor, and Edwin K. Livingston were elected to the Board of Directors. On the social calendar. our association hosted a reception for the federal circuit judges who are on the Court of Ap peals for the Federal Circuit. This circuit held court in Montgomery on February 6-9. 1984, and this was the first time the court had set in Alabama. Members of the Alabama Bar were afforded admission to that court during its session in Montgomery. The Montgomery County Bar Association was a very active association during the year 1983.Perhaps the most HCe n.ry C. happ ell, Jr. , (left) be ca me pr es iden t of the important activity of the association last year was reviving Montgomery Count y Bar Assoc iation at their Januar y the MCBA Docket.ou r quarterly news publication,and this 18t h annual meeting, taking lhe place of imm ed iate pa s t was only possible by the many hard hours and excellent president Eue l A. Screws, Jr. Chapp e ll is with th e Mont• work of our co-editors,C raig Cornwell and Lister Hubbard. gome ry law firm of Ru shton , Sta k ely,J ohn ston & Ga rr e tt. (co11fi111 1111• Alab,unal.att ')'ltr 97 Gtoung ~awrer's ieetion Edmon H. McKinl ey P,·es ide nt Young Lawyers Bridging the Gap The very important matte r of setti ng up and planning a law pract ice will be discussed by Robert Tan ner. He will In my opinion, one of the most important functions wh ich emphasize avoiding mal1>rac1ice, client sati sfact ion, com the Young Lawyers ' Section of the Alabama Bar Assoc1a· mon problems, financing, and success ful billing through tion performs for our profession and for the young lawyers 1h e good management of the law practice . One of the "bread of Alabama are the seminars which our section sponsors and butter" areas of the law - collections - will be dis th roughout the year. I have ment ioned t hese seminars pre cussed by Alan Levine. Th is 1l0rt ion of the day will be viously; however, I am now pleased to give you greate r devoted to collections. execution and exemptions. details on two of these. On March 30, 1984, the YLS subcommittee on Continu For those young lawyers interested in the tr ial areas of the practice of law . Carol ha s two outsta nding programs. ing Legal Educat ion will sponsor the annua l ''.Bridge the John Tall y, Jr. , will present a discuss ion of finding and Gap" seminar at the Birmingham-Jefferson C1v1c Center in deposing an expert. His discussion will cover locating and Birmingham . Thi s seminar will endeavor to familiarize the evaluating an expert. preparing the expert fortr ial, an d the new young lawyers and to " polish" the skills of younger examina tion of the expert witness. Second. Clay Alspaugh lawyers in those area s which are most often encountered by will discuss theever- increasi ngar ea of medical malpractice the members of our section. Carol Ann Smith. t he chairper· and how to take a medical deposition. T he seminar will be son of this sub-committee, has done an outs tanding job of concluded by Robert M. Girardeau with the basics of pulli ng Logether a seminar which will give t he young lawy workmen's compensation law. ers a vast amount of experience in one day. An unmeasura · Carol has asked m e lo emphasi ze that all of the ble amount of time has been expended in putti ng this se· speakers will 1,rovideformsforeac/1 of/he topics I have minar together , and I think it is wort hwhile in t his space to m e11tio11ed which should be of extra interest lo yoimg elaborate on the various topics which will be presented. lawyers. I encourage all young lawyers and other lawye rs Richard Jaffe will discuss the basic criminal pract ice and who are inte rested in these areas to please count on atte nd· all of its ramifications , including discovery, plea bargaining, ing this seminar on Marc h 30. tr ial tactics.attorney's fees. and thede fenseo( the indigent. The mar.e of divorce practice will be simplified by Judith S. Critt enden as she carries the young lawyers throug h an nulment, legal separat ion, post-divorce remedies, and child Sa ndesti n Serrunar Provid es custody. Howard Waliha ll of the Cumberland Law School Best of Both World s will present a checklist for incorporat ing a business under Alabama 's new corporate law.Ja mes Lloyd will explain how Caine O'Rear and Charlie Mixon, who are the co municipal courts work, the ha ndling of traffic cases. and chairmen of our subcommittee which develops the annua l the defense of drunk driv ing cases. The rapidly growing seminar held at Sandest in resort, have been very busy bankrup tcy practice and debtor's court matt ers will be dis· working on the arra ngemenls for th is semi nar. This has cussed by Andre Toffel. T his pan of the semina r will dis· traditiona lly been the best-att ended seminar put on by our cuss when and how to file. preparation of documen ts . ex· sect ion. Th is seminar offers the best of both worlds. both empt ions, and coun seling t he client. for the lawyers who attend and their fami lies. Besides an 98 March 1984 always outstanding academ ic program, this semina r offers them with a public serv ice notice. I congratulate both of the lawyers and the ir families a delightful opport unity to these committees for t heir response, time and dedication . enjoy one of the prettiest areas of the Gulf Coast and to use the magn ificent golf, tennis , fishing, sailing, and swimming facilities of this resort. Port City Youn g Law ye rs Making This year the seminar will be held on May 18and 19.Thi s Convent ion Pla ns seminar will focus on topics of current interests. Several Looking forward to the annua l convention in Mobile, [ am speakers have already agreed to speak. Among those arc pleased to report thatJohn Donald, whom I have prev iously Judge Haley, who will spea k on the recent developments in mentioned and who serves as liaison between the YLS Alabama Civil Procedure . The nuan ces of civil procedure Executive Committee and the Mobile young lawyers, has are always importan t and the ir developments are especia lly been working with Jim Newman, who is this year 's presi rewarding to the civil practitioner.John Carey, former ly the dent of the Mobile young lawyers. on the young lawyers attorney for t he Alabama Oil and Gas Board, will discuss social function lo be held during the meeting . I und erstand the regulatory aspects of the oil and gas practice.John will t hat t his social event will be held on the fantail of the USS bring a tre mendous amount of experie nce and expertise to Alabamaand thal there wlll bea well•known band livening the seminar; and for those interested in this area, this is a up the bay waters with t he music of the 50's and early 60's. discussion that shou ld not be missed. F'red Daniels. of Bir T he Mobile young lawyers always do a very fine job with mingham, will discuss the tax considerations in forming a their endeavors, and I am sure that this will be no except ion. new corporati on. Th is is an area of the law that is often· t imes overlooked but is vitally important to our clients. In addition, other speakers will discuss criminal rules, federal ALABAMAATIORNEYS MEMO practice and labor law. Plans are well under way to have a John B. Coleman U, Publisher social event on F'riday night t hat will match the tropica l sp lendor of last year's dinner party. Weekly digests of all decisions of Alabama Appellate Courts and actions of the Alabama Legislature. Conference for the Profe ssi ons Upcom ing SUBSCRIPTION RATES: Randy Reaves serves as chairman of the young lawye rs Lew Firms $138 - Soltt Practio ner $108 subcommittee which organizes and sponsors the Confer, ence for the Profess ions. Randy, who was the founder of P.O. Box1117 Columl»a. TN 38402 (615)388-1255 th is seminar, has adv ised me that plans are well underway for another excellent seminar this year. T he seminar will be presented in April, and I encourage any of you who are affiliated with any of the professional organiza tions and who are interested in represent ing clients before these regu · NEW! lated professions and groups to be watching for the an nouncement of this seminar. MAJOR ME DIC AL I NS URANCE Young Lawyer s Assist in Disaste r Areas MADE AVAILABLE TO MEMBERS One of the subcommitt ees which our sect ion has that BY - thankfully - gets called upon very seldom is the sub THE ALABAMA STATE BAR committee on Disaster Emergency Legal Assistance. John Donald, of Mobile, is chairma n of t his comm ittee , and we • $1 Million Limi t always laugh at his report that there have been noe mergen· cies and no disasters . Unfortunat ely, on December 7, 1983, • $1000 Stop-Los s severa l counties in Alabama were hit by tornadoes and • No Coord inati on of Benefit s floods. Tornadoes did t he most damage in Dallas and Cal houn Counties , and flooding wreaked havoc in Jefferso n • Opti onal Maternity County. John Donald's committee went to work within twenty-four hours and, with the fine cooperation of the COMPARE THESE OUTSTANDING Alabama State Bar Headquarters and the Birmingham Bar BENEFITS AND FAVORABLE RATES Association, started informing the public of the availab ility of legal services which were availab le to these disaste.r CONTACT : victims. Working with John on this was Carleta Roberts INSURANCE SPECIALISTS , INC. who is chairperson of the Alabama Bar Information Sub· 1718C ITY FEDE RAL BUILDING committee and Newspaper, Televis ion and Radio Subcom BIRMINGH AM, ALABAMA 35203 mittee. Car leta notified newspapers through out the disas PhOneTo l~Free: 1·800/241,n53 ter areas of the availability of legal services and provided 7'/rttAl11boma loltl}tl' 99 FacingM • 100 ho am I? The name is not like to prepare for [inal argument in important. I am an expe I and 1nillions of other re federal court by stay ing out half the Wrienced tr ial lawyer, but the covering al.coholics are liv night drinking and having my client important thing is that ( am an pay for my lack of preparation. alcoholic. ing proof that there is a I will never forget the case Lucian I have n9t had a drink of anything solution . and I tried together in the federal alcoholic for more than twenty-three court , where J had the shakes so bad years, but I do not say I wa s an alco· that when the foreman of the jury holic - I am an alcoholic. I know that I know about all of the pressures on looked me in the eye my eyes start ing if I took just one drink, I would no tria l lawyers and the temptation to shaking. Happily we reversed the case longer have control over alcohol and relax over a drink or two. My mother's on appeal and on remandment were would end up drinking more.! am still father was a lawyer, my father was a successful. only one drink away from a drunk . It lawyer. and I started out practicing in I know what it is like to work all has been so well said that for an alco his law office. Dad liked to take a drink night on an important brief on applica· holic "one dr ink is too many and a and hecou lddrink like a gentleman. In tion for rehearing and realize the next thousand drinks are not enough." those days we knew nothing about the day that I had spent hours repeating I am honored to serve on the bar disease concept of alcoholism, but it meaningless phrases. I had not in association Task Force on Lawyer Al· was easy for him to seeand LOtry to tell tended to get dru nk. I had only wanted coholism and Drug Abuse. We have me tha t I could not handle alcohol. For to take one or two drinks to relax. But, one message for anyone to whom alco thirty-eight years I tried lo prove he you see, I am an alcoholic and when I hol or drugs are causing a problemand, was wrong and I (ell nat on my face. take that first drin k, 1 have no control that is, the message of hope. THERE There is something about my physi over my drinking from then on. Happ IS A SOLUTION. This is a solut ion cal make-up which will not let me take ily for me, 1 found that solution, that which has been found by me and mil· help that is available to anyone who lions of other alcoholics around the will reach out and take the hand of world. help which is being offered. Each of us is unique, but we also It has been so well said that The successful practice of law de· have many common characteristics. for an al.coholic011e drink is mands the best that is in each of us and Character istics of the practicing alco· too many and a thousand that cannot be achieved by drinking holic are the hopelessness and the lone· drink s are not enough. too much and su ffering from hangov liness. It is such a relief to learn that ers. One of the mysteries is why the you are not alone, there are many oth· pract icing alcoholic feels he has to give ers in the same situation and there is a ju st one drink and stop. I remember so the competition an unfair advantage. solut ion which can result in a happy, well one time when my friend, Tommy Practicing law is hard enough at its productive, sober life. Practically no Greaves, was catching a plane back t0 best, but there is no question that it is alcoholic finds that solution by him Mobile. He bought a drink and drank easier Lothink and speak clearly when self, but there are hands reaching out. it. The plane was delayed and we sober rat her than with a hangover. wanting to help. bought another drink. He drank about I and millions of other recovering No man can live more than one day a third of it and shoved it aside. I com· alcoholicsare living proof that there is at a time. The burdens and regrets of mented to him thal lhat was the dif a solution - a new way of life. a better yesterday and the fears of tomorrow (erence between him and me, because I life, a happy life, and a sober life. Many are too much for anyone. But we can could never have stopped leaving that of you who read this issue are not alco· each take it easy and face each problem or any other drink unfinished. holies, but probably know some who as it arises this one day. lf I do not take Like many lawyers. I thought I had are. WON'T YOU LET US HELP that first drink this one day. I keep this to wine and dine clients. I learned the THOSE LAWYERS WHO NEED one man sober. hard way that they did not mind drink HELP? D Alcoholics Anonymous was formed ing all night with me, but they wanted thirty-fiveyears ago on the principle of a sober lawyer the next morning. At one drunk helping another and putting one time I represented one of the larg· Th e anonymou s writ er of ths arti· into action this simple program. Bar est corporations in Alabama and wined cle is a highly re specte d Alabama associations in other states have en and dined the vice president. One night law ye r, who for seve ral yea rs was larged th is to make it "Lawyers Help· al a masked ball, I shot off my drunken un der the de structive power of ing Lawyers." That is what we are mouth and the next day he had changed alcohol. He now lives a so ber life trying to do in Alabama. While there to a sober lawyer. and shar es th e me ssag e that th ere may be exceptions, ordinarily the al· I know whal it is like to come before is hope for those who se lives and coholic needs outside help such as I thejudgeat8:30in the morning after a prof ess ion s co uld be virtuaJJ y received years ago, and we want to bar association party , with a crimson ruin ed becau se of a dependenc y make that help available to anyone complexion and alcoholic sweat pour on alcohol. He know s . He's been who will take advantage of it. ing out of every pore. I know what it is there. The Alaba,11aIAwyer IOI lo just disappear, we would have a simp le solut ion; however, in 1920 the Eight.eenth Amendment and the Vol stead Act began our noble experime nt with prohibition and by 1933 the Twenty-first Amendment passed read ily as an abject admission that we can not cure the ills of alcohol and chemi ca ls with constit utional amendments and legislation . The solutio ns will be found when we have changed our att i We Have Met the tudes, when we have sought an under· sta nding of the danger, and when we have acqu ired the mind-set and deter Enemy and He is Us mination to do something to alleviate it. There is no hard evidence that law trained professionals ha ve a higher in cidence ra te of addict ion to alcohol or drug s than other segme nts of our pop ulation. Apparently, lawyersandjudges succumb to such addictions at about the standard rate within the popula tion - a high percentage of us drink, and about 10%of us will become alco holics. The best estimates are tha t there are approx imately 10 million al by Judge Val L. McGee coholics in the U.S. of which aboul 50,000 are lawyers an·d judges, and that there are about 150,000 alcoholics in Alabama, of which about 700 are lawyers or judges. There may besome members of the Bar who would take comfort in these figures indicating, as they do, that lawyers and judges, with the well known stress and demands of the pro fession, are no more prone to sub sta nce abuse and addict ion than the general population. But th is sent iment ignores the fact that we law-trained professionals cons ider ourselves, with ne of t he classic lines from the problem of alcohol and drug abuse some justification, as selected from the Pogo, the comic st rip wit h in our nat ion, in our state, and in our "best and the brightest." As a matter 0 "gentle" sat ire of a few years sta te bar association. If we could clearly of fact, there is a considerab le body of back, was a paraphrase of Commodore see and admit that the problem is in research evidence thal the incidence of Perry's famous boast. Pogo, the whim side us, that the st umbling block is on abuse of alcohol and drugs , and the sical litt le possu m, is show n with a our attitudes toward alcohol and drugs, rate of true addiction among users and serious expression say ing, "We have the n we could begin a process toward a abuse rs, reaches and inflicts all of us met the enemy and he is us!" Of solution. alike - the r ich and the poor. the edu course, the hu mor in the line lies in the The press and electro nic media are ca ted and unedu cated, t he talented sudden shift from pomposity to humil literally bombarding us today with the and the unta lented . ity: but, the rea l genius of the line, as in message - alcoholism and drug addic Any tendency toward complacency all of cartoon ist Walt Kelly's offerings. t ion have become a virtual epidemic in should be curtail ed by a cursory reflec is the eart hy message that we humans our land. Many of us are moved to do tion of the substan tial harm to our pro can, in rare instan ces, stop our postur· someth ing, but the problem is so com fession which can beinfli cted by only a ings and see ourselves as we really are. plex it defies us to "find a handle." If few alcoholics and drug addicts at the Th is is the basic need as we address the offending chemicals could be made Bar an d, more importantly, the ines- 10'2 M<1rch1984 ,timable damage which can be done to enlightened, modern view of alcoho hundred years and it is now evident the rights and causes of clients. It is lism as a "disease" or illness. that alcoholism and other drug ad estimated that each alcoholic adver· The disease concept of alcoholism is dictions are truly psycho-social bi ogeneticd iseases. sely affects at least four other people now firmly entrenched in all profes included within this sphere of persons sional groups which have st udied and In the sixties, the Supreme Court of are spouses, relatives. and co,workers. made pronouncements on the subject. the United States found addiction to be Therefo re, the number who suffer from Alcoholism is recognized as a disease a disease in the classic cases, Robi11so11 alcoholism far exceeds the number of v. California, 370 U.S. 660, 82 S.Ct. alcoholics. The California and New 14]7 (1962) {criminal punish ment of a York bars estimated in 1979 that two heroin addict), and Powellv. Texas, 392 thirdsof their disciplinary actions were U.S. 514, 88 S.Ct. 2145 (1968) (public directly related to the abuse of alcohol It is imp erative that all of intoxication of a chronic alcoholic). and drugs. The Florida bar estimates us strive to learn mor e aboul As early as 1966, the Fourth Circuit that of their serious disciplinary ac· the affl iction a11d lo cease ordered North Carolina to release on tions 40% are tied in with problems ·viewing the alcoholic as constitutional grounds a chronic alco with alcohol or drugs. In Alabama, it is weak-willed and morall y holic arrested (for the 200th·plus time) estimated that we are about average in depraved. for public drunkenness. Driver v. Hin· the fifty states in the percentage of nan/, 356 F.2d 761. The court stated: disciplinary proceedings which could This addiction- chronic alcoholism be traceable to alcoholism or drug - is nowalmost universallyaccepted addiction. medicallya s a disease. Beginning with California in 1973, - a treatable illness - by the Ameri The concept was voiced by the Fifth more than thir ty st ate bar associat ions can Medical Association, the American Circuit in Marlin v. N. Y. Life illsr<· have now taken formal action thro ugh Bar Association, the American Hospi special committees to reduce alcohO· tal Association. the World Health As ranee Company,62 1 F.2d 159(5t h Cir. !ism and drug abuse within their or· sociation, the American Psychiatric 1980) which adopted the district court gan izations . Last summer our incom· Association and many other prestigious decision autho red by Judge Frank M. Johnson: ing State Bar president, Bill Hairston, groups. In a recent article. "The Dis· appointed a task force to address the ease of Chemical Dependence," pub· The policydefines di sability in terms problem in Alabama and to make re lished in TheCa1tnselo-r,Dr. C. Douglas of"bod ily injuryo r disease."Wheth er chronic alcoholism is a "disease" commendations to the Bar. The task Talbott, a leading expert in the addic, live disease field, writes: cannot be resolvedagain st the plain, force has made some progress and a tiff as a matter of law as it often was few preliminary suggestions, but as of Americahas been reluctant to lookat a generation ago. There is now a this date we have not fully organ ized alcoholism or for that matter the substantial body of opinion, recog any "self·help" groups such as a "law· other drug addictions as a disease. ni~ed by the courts, that alcoholism regarding them instead as a moral or is properly deemed a disease in cer yers helping lawyers" network over ethical issue, bad habit, a lack of will taincases .. . the state, as has been done in many of power,ordiscipline.We have learned the state bars which preceded us in the moreabout these illnessesi n the past A substa ntial body of case law rec st ruggle. The use of a considerable five years than in the past five ognizing alcoholism as a disease has portion of this issue of The Alabama Lawyeri s a part of the task force plan, the objective being to start an educa· tional process within the Bar as to the scope and nature of the problem. and to ask for help from the membership of the Bar. Th e most serious aspect of the substance-abuse problem is that, by our condescending, " holier than thou" attitudes, we actua lly interfere with or even prevent alcoholics from seeking help with their addiction. It is impera tive tha t all of us strive to learn more The Honorable Val L. McGeeserves /ls about the affliction and to cease view, judge ofthe DisIrie/ Cor 'rht!Alobanta lawyr r developed in connection with claims ing people are Jim Kemper, Jr .. chair for federal social security disabilily man of the board of a major insurance benefits. The earlier cases echoed the and financial services corporation, ac prevalent notions that alcoholism was tors and actresses such as Jason Ro voluntary, and was a mere "personal bards. Dana Andrews, Sid Caesar and ity disorder." In recent years, due to Mercedes McCambridge, former con the advances made in lhe understand gressman Wilbur Mills. former first ing o[, and diagnosisof, chronic alcoho lady Betty Ford, Joan Kennedy and ALCOHOL lism, six of the federal circuits have many others. now permitted claimants to establish Alcoholism can be described as "in and disability due toalcholism. ln 1981the sidious, progressive and fatal if not Fifth Circuit stated in Ferguw11v. treated." All of us know members of DRUC USE Schweiker, 641 F.2d243(5thCir. 1981): the · Bar who have suffered and then It is well-settledthat alcoholism. died an untimely death because of al· aloneorcombinedwit h other causes. coho! addiction. Some members of a can KILL can constitute a disability ii it pre local bar in a medium-sized Alabama vents a claimant from engagingin city recently reflected on this tragic substantial gainful activity. someone T he federal courts have even recog, you nized the classic "denial syndrome" of alcoholics. In Adams v. Weinberger, It is eleniental humanitar love 548 F.2d 239 (8th Cir. 1977). the clai· mant was a pathetic alcoholicwho tes ianism for us to develop in tified, nevertheless, that "the quitti ng tervention techniques for drinking, there is no great problem persuading suff ering alco there. Well, I enjoy it, and I don't - I holic Bar nienibers to seek don't think the beer hurts me particu treatntent and to conquer larly." The administrative law judge their addiction . and the district court both held that this testimony showed that the plain tiff wanted to continue his drinking habits, and that under these circum stances he was not entitled to disabil· stat istic and counted nearly one law ity benefits. The eighth circuit rev· yer death each year for the past twenty ersed. holding: years from alcohol abuse. And with the relatively recent in-roads being made The commenton abstaining from by drugs such as cocaine. the total boozeand giving up drugs and the speculationon claimant 's motivation problem of chemical abuse is most cer do not address squarely the crucial tainly growing more ominous. Inpatient issue ol whether or not Adams has To obtain a sense of the urgency of Treatment services the capacityor can be motivated to the problem is probably the easy part be rehabilitatedfrom ch ronicalcoh o of this inquiry. The more difficult • Medical Detoxific ation lism. with or without outside psy chiatrich elp. phase is determining a strategy to •28 Day Intens ive Progr am •Family Treatment Such testimony may be relevant ii. stem the tragic tide, to curtail the ill medically.the claimanthast he power nesses and unnecessary death. It is •Cert ified counselors to controlh is alcoholism;otherwise. elemental humanitarianism for us to •2 Year CLC the statementrep resents the ration develop intervention techniques for • Full Hospita l suppor t alizationso f a sick individualwho persuad ing suffer ing alcoholic Bar does not realize the extent of his illness. members to seek treatment and to ForConfldentlal Information conquer their addiction. However, we Call1 2051284·1224 In addition to the many professional must not use all of our energies saving associations, and the courts, which those who are presently floundering have acknowledged alcoholism as a and "drowning;" we mu st devote a TliT A Baptist Health serv ice disease, there are hundreds of promi substantial part of our resources and ~ ~ Montgomery , AL 36198 nent former alcoholics who are prom efforts to stopping those who are, in· oting a campaign for an enlightened nocently yet unwisely, jumping into approach, and one which would en the flood upstream. courage early intervention and treat I certainly do not pretend to know ment for alcoholics. Among these car· the answers, nor do I tender any fixed 10.1 March 1984 strategy for the Alabama State Bar to who finally organi1,edt he effort which similar manner. the fight against al· adopt in its battle against this afflic conquered that dread disease in the coholism and drug addiction should be tion. l do suggest, however, that we United States (although many polio aggressivelysupported and led by those aggressively enter the fray; that we victims, including President Franklin of us who, by the grace of God, have not face the issues boldly and without Delano Roosevelt,were effective in the become victims of this dread disease. apology. remembering that it is a dis As chairman of the Alabama State ease - an illness - even though il Bar task force on alcoholism. l would begins with a voluntary act; and that appreciate your thoughts, suggestions we join the fight with an affirmative There are about 150 ,000 and offers of help of any kind. l am not approach. and an expectation of suc alcoholics iu A/abarna of an expert on alcoholism; like most of cess. We must continue to assess our our Bar members, I am somewhat situation and modify our strategy and whi ch about seven hundred overwhelmed by the size and complex techniques, but I would call for the ar e laywers or judges. ity of the problem. However, we all following as our "opening volley:·· know that the problem will not go I. Providea blockof time at each an away and will not even be diminished nual Barconvention for educational without a united and motivated effort. and inspirationalseminars on alco various efforts). Millionsof non-victims Therefore, l urge all members of the holismand drug abuse. worked in the March of Dimes cru· Bar to respond to this call of arms; if a. We could arrange for nationally sades and led in the fight which in the we become excited and committed we knownspeakers, perhaps some of a celebrity category. 1950s eradicated polio as a scourge of can make substantia l and significant our youth and of many adults. In a progress. D b. Weshould have programs center ing on the problems of wivesand children of suffering alcoholics. c. A sufficient variety of programs could be maintainedin order 10 Leasin\{ keepa fresh approacheach year. 2. Create and pe.rfect a skillful inter from Professionals vention system. basedon the "Law • • yers Helping Lawyers" formatu sed in man)' 01herstates. 1saw1nner. I leasedmy car from CreathieLeasing because I likedealing With professionals. a. The costs should be relatively Ctea1ive's(l(lly businessis transpooallO(l leas,ng . Theiraffiliation with srareand conservative.bul the basic provi· na11ona1leasing associations keeps them abreastof !he mostcurrent indu stry trends sions forcon1nlunications-such and innovations. Whether you lease(l(le vehrcleor a hundred. <:allCreabve Leasing as 1he telephone "hotline" ap and ler!hem design a plan to fi1 your individualneed s. j? proach.and minimumconsultant fee,;- must be fundedfrom the ~#,z,.,A~ su:1rt. b. Whetherth e interventionmech creative anismperforms asacon1n1itteeof leasing theStaie Barorasa Bar-sponsored Ii:IIL! separate non·profil corporation. Swmingham 251-0137 there must be provisions for com· Monrgome,y 264-8421 pleteconfidentiality as onecaring Tuscaroosa 345-6494 lawyer helps another who is suffering. The fight against alcoholism in Ala· bama, as elsewhere, has been spear headed primarily by recovering alco holics, through excellent Alcoholics Anonymous chapters. and a fine net· work of treatment and counseling cen ters. We are fortunate to have had these wonderful people - these recov ering alcoholics who care about those who still suffer, and who daily give generously of their time and resources in the battle against abuse. But why aren't those of us who have never been victims of alcoholism taking a leader· ship role in this fight? ll was not merely the victims or poliomyelitis The Alf1ba1nal..nw)v:.r 10.5 new brain. which includes the cere bral cortex, the cerebellum. and the medulla and the other new brain sec· tions. It is now apparent that these two brains are intimatelyr elated to the diseaseo f alcoholism.I n the non· alcoholic, the cognitive decision to Ami My drink or not to drink is made and controlled in the new brain. Lnt he alcoholic, the message,whic h comes from the primitivei nstinctual brain. Brother's Keeper? relays a different message: "I need a drink. I must drink. I will drink in· dependent (regardless) of the conse quences." Compulsion, the number one primary symptomof the disease. is now to the alcoholic the supreme and overriding stimulus comingfrom by Thoma s H. Claun ch, Jr. the hypothalamic instinctual control center. the primitive, old, survival brain. 3. Compulsivity, the primary disease signer of the Declaration of C. Prope.r alcoholism treatmenti s ef symptom. is due to altered brain Independence, Dr. Benjamin fective. chemistry. Compulsivity, as it re A Rush. in 1785, wrote in his Dr. Doug Talbott, an internationally lates to alcoholism and other drug medical papers of the "disease of al renowned authority, in a recent arti· addictions. arises fromt he old survi· val brain. Currently there is evi· coholism."' The famed Philadelphia cle• presents five major issues. the lack dence that chemical deficienciesi n physician left his name and innuence of understandi ng and ignorance of certain specifica reas of the hypotha· on many revolutionary aspects of medi which perpetuate the relucta nce and lamici nstinctual primitiveb rain lead cine, but failed to communicate this inability of many to accept the disease to compulsive drinking. Recovery important concept that is still misun· precept of alcoholism: begins with the endogenous (inter nal) replacement of these chemicals derstood almost two hundred years J. Alcoholismis not related to volume, through abstinencea nd the building later. No other disease today attracts dose.d uration.or degreeof intoxica· of non·chemical coping de!enses so much professional and lay contro· tion. Of fiveabusers (heavy dri nkers). against the further depletion of versy, confusion. and Monday morn· only onec rosses the wall and devel· endorphin-enkephalin systems. ingquarterbacking.Few can befou nd who ops the disease; yet, two of the five abusers maydrink more.drink more 4. Alcoholism is not a primary psychi· do not have a ready opinion as to the often. and get more intoxicatedfor atric disorder. In a triageo f over six cause, extent. prognosis, and treatment longer periods of time. Alcoholism hundred patients assessed with ex· of alcoholism.* or, for that matter , the comesi n people. not in boules: it is quisite diagnoslic methods of psy· nol due solely to abusive drinking chological. psychiatric. and addictive alcoholic. diseaseteams , it was shown the 93% There is little or no quest ion as to but to a complex biogeneticpred is· PQsition. of the alcoholics studied have no the major adverse and devastating ef. primary psychiatric disease, albeit feet alcoholism and poly-drug addic· 2. There are two (parts) brains: the the majority have emotional prob tion have on our society. While it is. primitive instinctual bi-ain and Lhe lems. secondary to their addictions. unfortunately, true that many unin· formed laymen still question the medi· Thomas (Tom) H. Claunch, Jr., is a cal/disease precept of alcoholism, na native Alabamian. A11 intemational tional medical authorities,• the United authority 011alcoholism a 11ddrrigabuse, States Covernment,3 the United States Tom ettrrentlyserves as presidentof the cour ts,' business and industry lead· National Associationof A lcoltolism.and ers,• the American Bar Association,• Drug Abuse Cou11selors.Heis a certified and major health care reimbursement alcoholism cou11selor a11d has traveled companies' clearly understand three widely as a sf)eaker and lecturer. Tom very pertinent facts: parlicij)alesont lte Summer Schoolof Al· A. Alcoholismis a disease. coho/ Studies staff of four universities, B. Alcoholism is a treatable disease. a11dprese 11/ed a pa.per al the WorldCo11- fere11ceo11Akoltolism heldin Londonill the spring of 1983. Tom serves011 1111- • Atcoholisn1 will be usedas a generict erm 10 merous national (md local boards and includesuch oommo ,1usage phrases as addictive disease,po ly-drug abuse.chemica l dcpenden<:y. commilleesi n lite addictivedisease f ield. sedativism.etc., where lhCuse of beveragealco has served as a co11sulla11/lo lite Na hol is lhe primary usageagen1 in the disease lio11al lnstitttle of Alcohol Abuse and diagnosis/evaluation in combination \vith or Alcoholism and is associated with Bap, wi1houl otherpsycho,activc chemicals. list Medical Ce11terin Montgomery. 106 March 1984 The conclusion is inevitable that lems. The profes sionals then, in car compulsivityis of diseaseorigin. Drinking+ st ress - increased rying out to .t~e. best of their ability 5. Th~ disease of alcoholismis a bioge incidence-+ drink ing prob lems their respons1b1hty to their client, in net1c disease;alcoho licsare born, not danger+ X factor = alcoholism. advertently become e nabl er s . An made:Curr~nt ev idencei ndicatesthal cerl~1n 1~d1V1d~alshave a genetic enabler is, with in the alcoholism field pred1spos111on.1heir XYchromosome Biogenetic and environmental fac common ly defined as "a person (o; abnormality determines whether tors affect all hu man beings alike re agency) who solves problems for the th.eyare Lheonein ten drinkers that alcoholic that allows him or her to es will cross the wall into alcoholism. gard less of race. color, creed, s~io econom1c status, etc. In fact . alcoho cape or avoid theconsequencesof their hs~ ca n be sai~ to be an "equal oppor drinking." In the classic pamphlet A The best current data from a variety LU~ity disease 0 - the affirmative Merry-Go-RotmdNamed De11ial,,e Dr. of sources, including st udies of twins• acll?n p rogram for one's equal oppor Joseph L. Kellermann states: adoption,•• and sons of alcoholics,;, tum ty is tostartdrink ing. But, helping "The role of the professional _ support the studies of Dr. Talbott and P:~fess1.onaJs•• have two unique con clergyman.doctor. lawyer. or social other researchers, st udies wh ich in the ditions '.n addit ion to these biogenetic )VOrker-:--can be most destructive, if implication indicate that perhaps one 11~n d111ons the family to reduce the a~~ environmenta l factors. These con m ten people have an inherited "X" cr,sis rather than to use it to initiate d1t1ons result from the professiona ls' a recoveryprogram." factor that predisposes them to drink belier tha n average educat ion and the ir ing problems when they choose to start How can professionals avoid t his dri nking. trap? T he attorneys must represent We live in a society that is very their clients, the doctors must treat the geared to the use of beverage alcohol, The disease of alcoholisni is physica l needs of their pat ients, and and, to a lesser extent, to other mood the clergymen must serve as best as changing, mind-alter ing drugs. A 1979 a b~ogenetic disease; alco God will direct in ministering to the national survey 12 reported that 68%of holics are born, not made. needs of their flocks. These and the the adu lt population dr inks, with 75% other helping professionals are often of 12th grade•• students drinking (l)well sk illed to deal with the present · (32.1% moderate/heavy to heavy). What ing problem, (2) out of contact with better than average opportu nity to th is means, of course. is that almost other helpers, (3) misled by the hurting contact people with problems. everyone with the "X" factor will have person. and (4) reluctant to tread on Education can, in a strange way, be a chance to activate his or her illness. unfamiliar ground. come a barrier to helping. Profession The whole issue is further complicated Even if a drinking problem is sus als, by the very definition of t he word by many othe r issues when applied to pected or known , an additional barrier become specialists in specific areas of particular groups or professions. to effective help is the fear tha t todis In some professional groups the co knowledge. People-helping profession als develop great sk ills at solving peo dosethe socially stigmatized problem ~actors of stress and social pressure 1s to nsk loss of the relationship. This ple pr?b lems . Lawyers by train ing and increase apparent vulnerab ility to then would sever any opportunity to expenence are the answer to legal dnnkmg problems and alcoholism. No effect a change, do a job, or help the problems , doctors serve our medical proven cause-and-effect relation exists person. Professional ego may also be requirements. and the clergy is the bet ween stress and alcoholis m. No involved m some cases . Professionals normal source to satisfy spiritua l needs. cause-and-effect relation exists between because of their much belie r than av'. '.he very complex syndrome oi alcoho drinking incidence and alcohol-related erage opportunity to contact people lism creates problems in the whole problems, 14 such as medical conse with problems. also have a greater person: physical, menta l-behavioral que nces. pancreatitis, card io-vascular chance to be adversely affected by and spi ritual. Duri ng the progressiv~ condit ion, cirrhosis, gast riti s, and duo l hese con tacts. cou_rseof the disease many problems den itis. general neglect; job-related The whole concept of the co-depen typically resu lt for the alcoholic. his or problems; legal problems. suc h as do dent, the family disease, indeed the her family, and society as a whole. In mest ic violence, child abuse, dr iving rea son for the irreplaceab le Al-Anon f~ct. the work ing definit ion of alcoho under the in[luence, vehicular homi !amily groups, is that people constantly lism used by this author is, "lf drink· cide, drug -related abuse. and crime in m contac t with practici ng alcoholics mg causes problems, it is a problem. general; and other addictions. •• Hence, are themselves adversely affected. Do something about the problem." alt hough we cannot state that an in· Broken promises, erratic behav ior, All too often the alcoholic does not do crease in drinking incidence causes al non-response to direct ion, repetitive someth ing about the problem, but with co_holism,we can say it may be a con problems, manipulatio n, con jobs. and expert professional help does some tnbutmg fa<:torand that it is certainly dec~ption are a way of life with the thmg about the many attendant prob- a warmng sign. acuve alcoholic. Socially unacceptable . A u.seful (but unscient ific) model to ~hav(or like child abuse, DUI, fight •• H~lping pr~fessiona l reJersto lhose people, snnphfy a_very complicated and as yet h_e1p1ng profess,onaJss ucha s the law)'e.r', ph)•si· ing, cnme, and wife-batter ing are diffi. undetermmed relationship might be: c1a11, elcrsn•man.eic. cult to separate from the sick persons 1'ht·Alolxuna l..awyer I07 themselves. Actions like these and the for and fail Losee what we thin k is not peer-conductedp rofessional programs frustration of continued Jack of suc there. combine elementsof the familyand cess in correcting the behavior. pre· Should a professiona l become in· the EAP intervention model. They volved in what some would consider work.Families. careers. and livesar e sent ing symptoms. and problems of being saved in gratifyingli• large the alcoholic. begin to distort the point the personal areas of their clients· nu1nbers. of view of the helping professional. lives' 3. Makeiteasyforson1eonctorcceive This phenomenon is significant enough A simple four•step plan will equip your help in any situation \vhcrea that the U.S. Civil Service once pub anyone to better serve and help the drinking problemis confronted,dis • lished a booklet called A Guide lo estimated eight million alcoholics in cussed. or inLervened in, an attitude TroubledSupe rvisors. This booklet ex our country. or loving~-oncern must be projected. plains how superv isors, in trying to Break down the sLere(>typcsan d I. learn to recoguizean alcoholprob needlessst igma auached to the alco help.get snared in the denial.cover-up. lem. Specificeducatio n and knowl holic. The alcoholic is a sick person rationalizing, etc .. of the problem em edgeof alcoholisma nd its indicators needing10 be well. not a bad person ployees they are trying to help. to the are the key. Contact recognized ex· needing Lobe good.He l1>the problem extent that their own job performance perts in the fieldof addictionfor in· person maintain some dignity and formation anded ucational oppQrtun· is impaired. self-respect.Teac h and educateabou t ities. When trying 10 recognize an the disease. itssymp1oms.siR11s,and An additional feature of frequent alcohol problem. one must look past progression,and whe re and howhelp contact with the problem drinker is the parts and see the whole.A very can be found. successful personi n businessmay be that in this constant bombardment of 4. Rc(cr LO an alcohoUsrn expert. A trouble, the bad and negative builds its having major family problems be· causeof drinking. Lookfo r andat the large rield specializing in alcoholism own self-fulfilling prophecy of defeat. typesor problems- familyand ma· and other addictivediseases is grow trimonial, DUI. assaulls, SPoUSe ing to fill Ihe prevention.i nterven· abuse. businessfai lure. employment tion. and treatmem needs of our changes. and loss, debts. and irra communities. Jnformation, educa· An alcoholic is a sick per tional purchases. bankruptcy, bad tional, and referralservices areavail · checks, burglary, shoplifting. and ableat treatment programsan d pub· son needing to be well, not a Lax problems:alltheseareimpQrtant lie agencies. l>ind and contact a qual· indicators. Changes in behavior. ity programi n yourarea to beu sed in bad person needing lo be case or need. Visit such programs good. standards. values.andinter-pe rsonal relationships. when viewedaga inst and learn about treatment.if normal the person'sow n past performance. contact withalcoholicsorotherdrug will reveal declining pallerns. Look addicted peopleis frequent. Treat· for a long-term,p rogressivedown mem works! The modernd iscreet. If all one sees is active alcoholics in trend. non-drug. abstinence based, and trouble - sick suffering alcoholics in twelve step compatible programs 2. Confront, and disc uss in a non · have excellent recoveryrates. Pro all their infamy- the n the goal of the pejorative 1nruu1er, yourne ,v a, varc· grams staffed by multi-disciplinary recovered alcoholic is obscured soas to ness and knowledge. Ana lcoholic treatment teams, includingcert ified appear non-existent. This helps to does not haveto want help 10receive alcoholismcounse lors. expect 70 10 perpetuate the old stereotype of what help. However.help in lhe form of 80% Jong-termrecovery rates. In an alcoholic is supposed to look and act reality must bepresented in a manner patient programs are hospitalbase d acceptable 10 the alcoholic. Learn or free standing. and most are elig like. The old saying "familiarity breeds and use Lhene\v intcrvenlion st rate ible to receivehealth insurance be contempt" is true in spades in such gies. The Johnson Institute "ramily nefits. Some qualify for Medicare, situations. Sometimes the simple but intervention"model a nd thejob-based Champus.and o ther third partyreim typical alcoholic behaviorof not paying "employeeassis tance" or "impaired bursement plans. Publicly funded bills when due also exacerbates al· professional"mode l both work8010 programsexist for those not having 90%o r the time ir done according10 insurance. and ror the indigent or ready strained relationships. the basic premise or each. Family in, needy. No one needing treatment An important additional considera tervention is a learnedand practiced needs to go without. Out-patient tion confronting the helping profes strate1,,ywhereby the "significant programs are available in some sional is that as a result of the two others" sun-ound the problemdri nk communities. In these progrnmspa· conditions jus t discussed the profes er. and in love and concern reveal tients need not misswork to receive how they have observedt he actual propercare and treatment.A word of sional often develops a feeling of per drinking behavior and how iLmade caution: out-patient servicfs may sonal invincibility when it comes to them feel. The entire enabling struc varygreatly i n programs offeredand drinking problems very close at hand, ture. often including friends. rellow effectiveness.An out-pat ient program i.e .. in their own business, their own workers,a nd professionals, prepares should becarefully i nvestigated.T he to withdraw support if help is not family. or their own personal lives. program must be of the new "pri sought. The work based "employee maryday care/nig ht care" typewith The constanl focus outward on th e m assistance" program (EAP)is now a highly structured and demanding creates a feeling of. "It can't happen to used by50% of the F'ortune500com format.to bcconsideredviab le. Fam me or mine." T he ste reotype veils the panies and by many professional ily treatmentand long-term continu true condition of the person of the next groups across the country. EAP'sare ing care programs(after care) are a appointment. next office, next door, or based on documemedjob perform must for both in-patient and out ance.T he successful "impaired phy patienl treatn1cnt.Some treatn1ent next room. We see only what we look sician. lawyer. clergy" and other programs even specialize in certain 108 Altrrclt J984 " I'm Jim Kemper Jr., Chairmanof the Boardof a written a manuals o you can set up an "Employee major insurance and financial servicescorpo ra Alcoholism Program," within yourco mpanyto pro· tion, and I'm alcoholic. I'm not alone. The facts tect your people, as well as your investment in show that thereare many more like me. In fact them. These programswork. I haven't had a drink 10% of the work force in this country is alcoholic. in 28 years.Who knows, the next personyo u help "If you are in a managerial position, you have may be your next Chairman of the Board." probably lost or fired many people like me. Deci ,------, sions basedon lack of information can be as IT To: HE NATIONALCOUNCI L ON ALCOHOLISM, I dangerous as the diseaseitself. Alcoholism has I 733 Third Avenue, New York, New York10017 I nothing to do with weaknessof character. It's a I I am enclosing$6.00 for the National Councilon J verycomp licated diseasetha t can strike anyone Alcoholism's manual that will show me how to set up an J who drinks, whether youwork on an assemblyl ine, I EmployeeAlcoholism Programwi thin my company. in the mailroom, or the executivesuite. And it can be fatal, if not treated. : My name is • I "Most companies don't know how to deal with J My address is : this disease.But it's much easiertha n you think. That's why the National Council on Alcoholism has L:______:..:J professiona l groups or other special needgroups. The Twelve Steps of AlcoholicsAnonymous Above all available help is the great 1. We admitted we were powerless over alcoho l - that our lives had become fellowsh ip of Alcoholics Anonymous . unmanageable. AA , founded in 1935,has stood the test 2. Came to believe that a Power greater than ourselves could restore us to of ti me and demonstrated the proof of sanity . success. AA is found almost every 3. Made a decision to turn our will and our lives over to the care of God as we where and is free for the asking. "The understoodHim . only requireme nt for membership is a 4. Made a searching and fearless moral Inventory of ourselves. desire to stop dri nki ng."" All good treatment programs are buil t around 5. Admitted to God, to ourselves and to another human being the exact nature of our wrongs. the Twelve Steps of AA as the long· term recovery pattern and way o{ life. 6. Were entirely ready to have God remove all these defects of character. Treatment is not necessary for recov 7. Humbly asked Him to remove our shortcomings. ery, but AA is critical. Few maintain 8. Made a list of all persons we had harmed, and became willing to make long-term, successful , and happy rec amends to them all. overy in the absenceof the princip les of 9. Made direct amends to such people wherever possible, except when to do the AA Twelve Steps and recovery so would inj ure them or others. program . Many other effective self-help groups 10. Continued to take personal inventory and when we were wrong promptly admitted it have grown from the Twelve Steps of AA, Al-Anon Famil y Groups for fam 11. Sought through prayer and meditation to improve our consc ious contact il y members of people w ith drin king with God, as we understoodHim, pray ing only for knowledge of His will for us and the power to carry that out problems and Alateen for child ren of alcoholics are of special value. Narcot 12. Having had a spiritual awakening as the result of these steps, we tried to ics Anonymo us and Nar-Anon groups carry this message to alcohol ics and to practice these principles in all our are growing to meet the needs of fami affairs. lies w ith problems resulting from drugs other than alcohol. T hese wonderf ul self-help groups provid e th e necessary "Am I my brot her's keeper?" •• Only gresson Alcohol and Heal1h,June 1978,p. if I love enough. 117. lovi ng, caring, and supporting atmos 6. Joint Staten1ent, AmericanMedi cal Asso phere to insure long-term (lifetime) Helping professionals occupy a uni ciation and American BarAssociation 1968 recovery from a chro nic (li fetim e) dis que slot that enables t hem to join in an 7. NIAAARepon. s,a,usor S1atc~s la1ion effective battle, combating the devas and Researcho n Health (nsuranceC over· ease. AA meetings range from neigh age !or Alcoholism ·rrea1me nt, March25. borh ood groups of three or four to spe tating effect of alcoholism on our coun 1982. cial round -ups of thousand s. Over t ry . The marching orders are: (1) Learn 8. G. Douglas Talbou, M.D., The Di.seaseof Che-111foal Det>tnde,,ce: Fron,Co11cep/ to Pre · th irty thousand recovering alcoholics and accept the disease precept; (2) un cept. The C.J111$t'lor,July /August 1983. and famil y members fill ed half the derstand your special role; (3) st udy 9. J. Partanen, K. Bruun, and T. Markkanen, Louisiana Superdome for the 1980In · and support intervention; (4) focus on /11herita11ce of Drinki,ig&hav ior(Helsinki: Finnish Foundation for Alcohol Stud.ies, ter nal ional Conference of AA. the successes, in order to mobilize re· 1966). What a positive image 10 behold - solve; and (5) love eno ugh to r isk 10. D.W.Goodwin.F. Schulsinger. L. Herman. over thi r ty t housand people recovering action. o S.B. Guze.and G. Winokur. '"Alcohol Pro!). lems in Adop1oos R.lise 110 March 1984 Lumpsum payments aren'tthe only way to settle a personalinjury claim. Alternative: STRUCTURED SETTLEMENTS By thinking, not ju st quoting annuity rates, Howard Weil's Financial Services professionals examine ways to assist legal counsel in designing an appropriate settlement package. We'll explore investment alternatives such as tax-free mun icipal bonds, annuities, and ob li gations of the U.S. Government. We'll also consider the uses of third party assignment, perfor mance bonding, trusts, and even post settlement financial planning. Experienceexperience. Ca II 433-3145 Mob ile -!,-,~--~;;INC~:c;;;;;;;~ORPOAA TEO :;;;.;;;~--...... _ , 56 St. Francis Street, P.O Box 1866 ~1PC Mobile. AL 36633 l'nl ahvays open to d better way to get the job done. Tell rne more about stru<;turing setrlc,nenrs as an alternative 10 lump sum payments . 1 I Name'------~ : Address______I : City Srate Zip,___ _ I t: ____Business______Phone,______J The only New YorkStock Exchange ,"1embcr headquartered in the n>id·South. CLE NEWS <¥residem's ______{C(n1/h1tttYljr(JJJI /KIA"'92) GJ.>age To ass ist Alabama's attorneys in (Cou ti 1111,·d f ront jx1gt .J) meet ing their CLE obligat ions or amending their reports after timely fil. lion of our ru les of professional con What causes this increased cost? ing of them. the MCLE Commission duc1. Nothing else seems to work: Many things. but "discovery'' heads published a duplicate of the 1983 re maybe 1he glaring light of publici1y the list. We need to stop and consider porting form on page thirty·twoof the would. what it takes lo get the simplest case January 1984 issue of this journal. And the nex1co ncern is the ever ris ready for trial. Why so much? Discov Local Bar program s ma y be ing cost of legal services. Pick up a ery - that ·s why! e ligibl e for credit magazine and chances are some article And what can we do abou1 it? One will concern irself with 1hecost of legal suggestion is that we insist thai our The Committee on Local Bar Ac1ivi services. The message isclear-cl ienis rules relating to summary judgment ties and Services reminds local bar and potential clients are concerned. have real meaning. And maybe that is CLE committees that theireduca1ional Changes are in the works. Slowly noi enough. We need to return lo some programs may be eligible for approval maybe. but changes nevertheless. form of common law pleading. At leas! by the MCLE Commission. Informa Corpora1ions are increasing both the to 1heextent that a pany has to plead a tion may be obtained by calling 1his size and responsibility of in-house jus tifiable action before discovery writer at (205)269 -1515 at least one counsel. Governmental regulation is begins. month in advance of planned programs. increasing both in fact and in threat. With its UJ>s and downs. aggressive Non-lawyers increasingly fill traditional steps and plaguing problems. ours is a Attendan ce record s, indi vidual 's res ponsibilit y legal functions. T he public, the legis viable Bar . Wi1h our membership we latures. and even the courts . are look can and we will do that which is neces Alabama attorneys are reminded that ing for substitutes for our traditional sary to continue a sys1em of justice neither the MCLECommission nor the dispute seule ment programs. These tha 1 will meet the needs of the Repub· Board of Bar Commissioners re<1uire are forces that can transform the legal I~. o that sponsoring organizations report "business: · - Willia m B. Ha irston, J,·. individual attendance. It is and always has been each individual's responsibil, ity to maintain his or her own records and report to the Commission annu ally. Credits earned are a matter of Introduce individual honesty. Full credit is earned for attendance of entire programs. Any Your Clients portion of a 1>rogram that is missed must be deducted from the credit avail able for the program at a rate of one toa credit per fifty minutes of instr uction. Co1Tect ions: Valuable Service. CLE oppo1·tunitie s Refer them to Business Valuation Services for expert A seminar entitled "Negotiation and determination of fa i r market value of businesses, Alternative Dispute Resolution" was financial analysis and consultation in cases of: incorrectly listed in the January CLE calendar (45 Alabama lawyl>r3l ). The 0 Estate planning 0 Bankruptcy Alabama lnslituie for Continuing Le· 0 Estate proceedings gal Education is conducting this pro gra m which has been rescheduled for settlement 0 Mergersor March 22 through 24. not March 2 as 0 Marital dissolutions acquisitions previously published. Credits are 18.9 0 Recapitali:zations 0 Buy-sell agreements and the cost is $300. Registrat ion is 0 Employee stock 0 Dissident stockholder limited. Call 348-6230fo r additional ownership plans suits information. AddiLionally. the tiile of the March Contact Dr. John H. Davis Ill, 60 Comm erc e St., 28 activity was inadvertently omitted. Suite 1407, P.O. Box 2310, Montgomery, AL 36103 It is the lnstitute's annual "Banking (205) 262-6751. Law" seminar. Credits are 6.3a nd the cost is$65 for those whopre-register. D 112 March 1984 Opinions of the General Counsel William H. Morrow, Jr. Q UESTION: (4) Publicly and regularly engage in any other "M ay an attorne y who is issuing agent for a title business.occ upation. or pr()fes..';ion\vhich is insuran ce company and repre se nt s one of th e par used as a cloakfor solicitation or legalwork or as a feedert o his law practice." ties to a real es late tran sact ion reco mm end mortga gee's title ins urance and / or owner's title insurance Disciplinary Rule 5· 107(AX2) provides: to the partie s ther e to?" "Exceptwith the consentof his clientafterfull disclosure, a lawyers hall not: (2) Acceptfrom one other than his client any thingo f "alue related to his representat ionof or A NSWER: his employment by his client.'' The re would be noet hical impropriety in an attorney who The American Bar Association Committee on Ethics and is issuing agent for a title insurance company recommend· Professional Responsibility was heretofore requested to ing mortgagee's title insurance and/or owner's title insu· give an opinion on the propriety of an attor ney act ing as ranee to the parties to a real estate transaction if (I) an issuing agent for a title insurance compan)•. fn Formal attorney-client relationship exists between the attorney Opinion 304 (1964) the Commillee held that an attorney and one or more parties to the transaction . (2) a full disclo may not receive a commission for recommending or selling sure is made to the part ies lo the tra nsact ion that the title insurance without fully disclosing to the client his attorney is issuing agenL for the Litleins urance company financial interest in the transaction. The Committee further and has a financial interest in the issuance of the policy. held that there is nothing unethical in recommending title namely. receipt of a portion of the premium. (3) the at tor· insurance to buttress a lawyer's opinion or to provide for ney's office letterhead. etc., contain no indication that he is contingencies beyond his knowledge. Jt was further held issuing agent for the insurance company and the letterhead, that an attorney connected with a tit le insurance company etc .. and (4) the attor ney's position as issuing agent for the could not be named in advertis ing of the insurance com· insurance company is not used as a cloak for solicitation of pany, nor could he indicate the use of such insurance on his legal work or as a feeder to his law practice. letterhead. etc. The Grievance Committee to the Alabama State Bar by resolution dated November 19, 1965, adopted DISCUSSION: Formal Opinion 304 as its own. Disciplinary Rule 2-102(£} provides: Opinion 304 was issued under old Canon 38, Canons of "Alawyer who i s engagedboth i n the practiceof the American Bar Association. However, we find nothing in law and another profession or business shall the present Code of Professional Responsibility tha t would not so indicate on his leuerhead.office sign, or persuade us Lodeparl from any of the conclusions contained professionalcard, nor shall he identify himself in that opinion. as a lawyer in any publication in connection with his other professionor business:· Opinion 304 does not appear LOdraw any distinction between a mortgagee's policy of tit le insura nce and an Disciplinary Rule 2-103(AX4} provides: owner's policy of Litlei nsurance. ..A lawyers hall not: In a recent opinion the office of the General Counsel and The Alaban10iAW)'Ct 113 the Disciplinary Commission reaffirmed the action of the lawyer.A lawyers hould not chargemore th an a Grievance Committee in adopting F'ormal 0 1>inion304 of reasonable fee.fo r excessive cost of legal servi· the American Bar Association Commiuee on Ethics and ces would deter laymenfrom utilizingthe legal Professional Responsibility. system in protection of their rights. Further more. an excessive charge abuses Lhe profes sional relationshipbetween l awyer and client. On the other hand, adequatecompe nsation is 1----- necessary in order to enable the lawyer to ser· vice his client effectively and to preserve the integrity and independenceof the procession." Q UESTION: Ethical Consideration 2-18 provides: "When an attorney ent e rs into a contingent fee "The determinationof the reasonableness of a contract with a cJjent, and , afte r the attorney-dient fee requires consideration of all relevant cir• re lation s hip ha s been established it is discovered cumstancesand a lawyer should not enter into that the damages recoverable by the client are far an agreemento r charge. or collect an illegalor less than anticipated by the attorney and the client , clearl}'excess ive fee. A f ee i.~c learly e.rcessive u 1he11, after a re vieu , of tltefocls, a ln.,uyer of may th e attornE:y et hi cally present to the client a ordiua,y /)nule11ce 1C'Ouldbe left ll'ilh n defi· choice of (1) per mittin g the attorney to withdraw or nil e aud fir,n co11viclio11 Iha/ lite fee is in (2) ente ring into a new conting ent fee contract in excess of a renso11nblefee. ''(emphasis added) creasing the attorney's fee?" Ethical Consideration 2-19 provides: " As soon as feasible after a lawyer has been A NSWER: employed.it is desirable that he reach a clear agreementwit h his client as too the basis r the An attorney's presenting to a client the choice described feecharges to be made. Such a course will not in the request for opinion would be improper for at least two only prevent later misunderstanding but will reasons. F'irst. DR 7-IOl(AX2) provides that an attorney also workfor good relations bet ween th e lawyer s hall not intent ionally fail to carry out a contract of em and the client. It is usuallybe neficial to reduce ployment entered into with a client for professional servi to writing the understandingof the p,;nies re· garding the fee, particularly when it is contin• ces. Second, if the sole basis for the increase in the attor· gent. A lawyer should be mindful that many ney's fee in the proposed second contrac t is the fact that the personswh desireto employhim mayhave had damages recoverable are less than at first antic ipated. there liule or no experiencewith fee chargesof law would be no considerat ion to support the increase in the yers.and fort his reasonhe s houldexplai n fully atto rney's fee, the attorney's obligation to the client remain· lo such persons the reasons for the particular fee agreementh e proposes." ing the same undere ithercontract, namely, to represent the client zealously within the bounds of the law. Ethical Consideration 2·23 provides: DISCUSSION: "A lawyer should be 1,ealousin his efforts to avoidco ntroversies over feesw ith clients and From the question JXJsed.it is assumed that the client is should attempt to resolveamicab ly and differ· not guilty of any fraud or misrepresentat ion. The damages ences on the subject." simply are not as great as had been anticipated. Disciplinary Rule 7-10l (AX2)pr ovides: Disciplinary Rule 2-1J I sets forth the grounds which are the basis for permitting an attorney to withdraw from the "A lawyer shall not intentionally: representation of a client. T he fact that a law suit will not (2) Fa il to carry out a contract of employment produce a recovery as large as had been anticipated is not enteredi nto with a client for professional servi· one of the grounds permitt ing an attorn ey to withdraw. ces, but he may withdraw as permi1tedund er The question not only poses a quest ion of ethics, but a J)R2- 111, DR 5·102. and DR 5·105." question of b,1sic contract law. In general. the relation of attorney and client is a matter Basic contract law dictates that where one party to an of contrac t, and general rules as to the making of a contract existing contrac t promises something in addition to his govern in determ ining whether or not the relationship has obligation under the original agreement there must be ade been created. Although governed by genera l principles of quate consideration tosu 1>portt he new promise. This prin· contract law, when the attorney-client relationship is esta b ciple was well stated in Willis/011011 vm trocls.Section 130, lished, the attorney occupies a fiduciary relationship to quoting with approval from Lingenfelder v. Wai11wrighl ward his client and the courts will carefully scrut inize any BrewingCo .. 103M o. 578, 15 S.W.844: new agreement between the attorney and client , especially "Whal we hold is that whena party merelyd oes where as a result of the new contract the attorney's fee is what he has alreadyob ligatedhimself to do. he increased. cannot demand an additional compensation therefor.and . althoughby takingadvantage or Ethical Consideration 2-17 provides: the necessities of his adversary. he obtains a promi~ for more.the law will regard it a ,,,,. "The determination of a proper fee requires dum pactim, and will not lend its processt o aid consideration of the interests of both client and the wrong. 114 Marr:lt I 984 The doctrine was applied when an a11orney agreed in ,vriting to performservices al ten Under your existing contingent fee contract, you areobli · percent of 1he recoveryand later claimed one· gated to represent your client zealously within the bounds third thereofunder an oral agreernen1:· of the law. Under a new contract increasing your fee you would still be obligated to re1>resentyour client 1.ealously See: Quarlttrl!v. Allegheny Co1111/y,14 A.2<1575; Pen/011v. Mitchell. 262 S.W. 2d 639; Presnellv. Otx. 350 S.W. 374; within the bounds of the law. No new consideration would Ave/lone v. Jolt11Weise1·t Toba cco Co.,213 S.W. 2d 230; Ne flow from you to the client to support the increase in the fee. You s imply do not anticipate as large a recovery as was braska Stale 13(,r Assoc. v. Dunker. 71 N.W . 2d 502; and originally contemplated. Powellu. Wandel. 146A .2d 61. In the case of Dodd Board of Commissi<>11ersof the The courts draw a dislinction between the initial fee v. AlabamaStale Bar. 350 So.2<1700(1977),th e court held that contract which establishes the attorney-client relationship an attorney violated DR 7-101(AX2)when he entered into a and a fee coniracl entered into between the auorney and client which contract is negotiated after lhe attorney-client contingent fee contract with the mother of a minor to seek recovery for injuries sustained by the minor: caused the relalionship has been established. Contracts between at· minor's disability of non-age to be removed and then in torney and client made after the relation has been estab· duced the minor to enter into a new contract increasing his lished are construed most strongly against the attorney and contingent fee. are regarded with suspicion and jealously by the courts. 7 For the foregoing reasons, it is our conclusion that your Am.Jur. 2d, Allorneysal Law. Sections 210 and 21 l clearly draws this distinction in the following language: proposed negotiation of an increase in your fee with your client would not only violate the Ethical Considerations, 210. El/eelof 1>res11111/)lio11s arisi11gfrom allorney and Disciplinary Rules which govern situations in which an clie11/ relalio,iship . Prior 10 the establishmentof attorney may withdraw from representation, but also an allorney-client relationship.the parties may raises serious quest ions of basic contract law. o deal with each other at arm's length, and the attorney may then con1rac1wi1h referenceto J. Ma ssey Relfe , Jr., of Birmingham, was trans· compensation for his services. It is not pre ferred to disability inactive stat us by order or the Disc i- sumed 1ha1suc h contrac1sare the result of plinary Board, dated January 16, 1984-,based u~n overreaching or improperinflu enceon the part ofthe at1orney:such presumptionexists only as Relfe's ,petition to the Board, filed Januar y 6, 1984, m to coniracts made be1ween an a Horney and which he asserted that he suffered "an emotional in- client after 1her i>lation has beenestablished. A firmity which renders him medically disabled from contract prior 10 the establishment or ao practicing law. attorney-clientrela1ionship is as valid and un objectionableas ir made betweenpersons who do not occupya fiduciaryrela1 ion to each other and who are competentto contrac1with each other, provided it is fair and reasonable,is 001 $95 EMPLOYABIUlY EVALUATION cha1npertous,and does not olher,,1ise contra, vene publicpol icy." You~ a professionalemp loyabUilyevaluation 10 effective ly The old case of Lecatl v. Sallee,3 Porter 115 (Ala. 1836) negotiateyour per,onal injwy case. Persona l injurycases require held that an agreement made by a client with his attorney objectiveevaluation of lheamoun1 of loot e.amlngs, the extent and cause of the disabUily,and currenl employabUily . after the latter has been employed lo handle a specific matter by which the original contract is varied and greater compensation is secured by the attorney than that agreed Exoolent Toolfor Negotiating Your Personal Injury Case upon in the original contract is invalid and cannot be en Proofof EarningsLoss forced. The court observed: Causeof Disability "Uponthese facts, the question arises, can an Proofof Absenceor Presenceof Pre-existingCondition attorne)f, during the connection bct,vcenh is ExperiencedDoctora l level ExpertWitnesses client and himseir.make wilh his client.a bind ing contract Losec ure 10himself greatcd com· SignedPh .D. ErnploymenlExpert Reports pensation for his services than ,vas agreed u1>on. when their relalioncomme nced? SignedPh.D . &:onornlslExpert Reports Plaintiffor Defense In this case. the fee for the serviceswas settled by 1he contract betweenthe par1ies: 1hesame contract, by which the attorney under1ookto bring the suits for the complainant.The com ------plainant knew, with certainty, what he would be bound to pay. in case of success in all his EMPLOYMENTASSESSMEN T SERVICES suits.or in any Olher event. FIVEOLD CHIMNEY ROAD As the contract which producedth e relation HUNTSVILLE,AUIBAMA 35801 betweenthe partiesin thiscase,ascertainedthe 205-534-6844 fee of 1he defendant. it was as irrevocably seltled.as though a rule of law. whichtolerated no contract upon the matter. had fixedit." TheAfnbanu1 lt1wycr 115 Where there's a will... Now there's an easier way. AmSouth Bank's new Will and Trust Form Book provides a complete and up-to-date compilation of will and trust forms to make your job easier and faster. In add ition, extensive commentaries are helpful in the design and implementation of various estate plans. These forms reflect ERTA, TEFRA and recent revisions in the Alabama Probate Code and will be updated periodically to insure continuing accuracy. To order your set of Will and Trust Form Books. send your check for $95.00 payable to AmSouth Bank N.A. to the Trust Division at any of the addresses below. or contact the AmSouth Estate and Trust Planning Representative in your area. AmSouth Bank N .A. P. 0 . Box 1128 Ann iston, AL 35201 236-8241 AmSouth Bank N.A. P. 0. Box 11426 Birmingham , AL 35202 326-5390 AmSoulh Bank N.A. P. 0. Box 1488 Decatur. Al 35601 353-0941 AmSouth Bank N .A. P. 0 . Box 507 Huntsville, Al. 35804 533-5000 AmSouth Bank N.A . P. 0. Box 1628 Mobile. Al 694-32 11 AmSouth Bank N.A. P. 0 . Drawer 431 Montgomery , Al 36101 834-9500 The Final Judgm ent ioneclsense of duty toward his client which compelled him to be not just their lawyer but their friend. As a trial lawyer, he did not just C. W. Gross work a courtroom, he possessed it. He had that uncanny sense of timing Charles WilliamGross of Tuscaloosa which separates the great trial law died on November 7, 1983. He was yers from the good ones. His wit and seventy-nine. humor delighted all his company, his Mr. Gross was born in Wedoweeon legal mind was like a steel trap, and he January 7, t904. He graduated from believed deeply in basic fairness. He Howard College (now Samford Uni· was a peoplelawyer and proud of it. He versity) in 1924. He taught school for had no relish for representing corpora two years at Brundidge High School H. T. Foste r tions, but he did relish doing batt le where he coached basketball. with large insurance companies and In 1928,Mr. Gross graduatecl from HaroldThomas Foster.Sr., ofScous the Southern Railroad, and his clients the University of Alabama Law School boro died on August 31., 1983.He was were assured of a [air fight no matter and began his law practice in Tusca eighty-two. how well,heeled their corporate loosa which spanned over fifty-five Mr. Foster was born on August 22, opponent. years. 1901. in Scottsboroand remained there Harold Poster died on August 31, He served his community and pro until his death. He came to practice 1983, leaving an empty place in the fession well and atta ined many honors law later in life than most- in his30's hearts and minds of his peoplefrom all in his years of service. He was a past - having been a school teacher for walks of life who have lost a true and president and district lieutenant gov several years. He was a graduate of the trusted friend. ernor of the Civitan Club and was Cumberland Law School. Sympathy is expressed to his wife, named Tusca loosa Civitan Club Citi· For almost a half century Mr. Poster Lorine Hardwick Foster of Scottsboro; zcn of the Year in 1968. He served on counseledhi s peoplein J ackson County. his son. Dr. H.T. Foster.Jr., of Scotts· various committees of the Red Cross, He was an uncommon lawyer and an boro; and his daughter, Mrs. Jimmy United Fund and YMCA,and served uncommon man. He had an old-fash· Lou BouI L of Tampa, Florida. for t wenty-l wo years as chairman of the Selective Service Board for which he rece.iveclrecogn ition from the gov Burke, Ozmus Sigler - Moundville Admitted:1938 Died: FebruaryI. 1984 ernor of Alabama and president of the United States. Curry, John Hardy - Carrollton Mr. Gross receiveclthe ''Alumnus of Admitted: 1925 Died:January M, 1984 the Year Award" from Samford Uni versity in 1964 where he served as a Hoffman Theodore Hen ry - Fitzpatrick trustee for over twenty·three years. Admitt~: 1964 Died: December25. 198:i He is a past vice-president of the Martin, John James - Dothan AlabamaState Bar Association;a past Admitted: )930 Oied: December21, 198.~ secretary-treasurer,vice-president , and president of the Tuscaloosa County McDowell, Thomas Franeis - Birm111gham Admitted: 1932 Died:January 4. 1981 Bar Association;and a member of the American Bar Association. Porter, Charles Edward- Montgllmery Mr. Gross was a Christian and loved Admitted: 1950 Oied: Fehruary6, 1984 and devoted much of his time and ef. fort to his church, the First Baptist The Alnbo,na IAteyer 117 Church of Tusca loosa, where he served firm of Huie, F'ernambucq and Ste recognized nationally. He was invited as a Sunday school teacher, deacon. wart. He held offices and was active in to become a member of the American trustee. and member of numerous t he Alabama Defense Lawyers Associ· College of Trial Lawyers. the Interna committees. at ion and the American Judicature So· tional Academy of Tria l Lawyers and Mr. Gross always maintained a cour ciety. He was a Fellow in the Interna the American Bar Foundat ion. His ac· teous and gracious attitude toward tiona l Associat ion of Insu rance Coun· ceptance sure ly enriched t hese organi friend and adversary alike. He enjoyed sel and a member of the Law Science zations. the admiration and respect of his fel· Academy of America. He belonged to Stan, by traini ng, courage and char· low lawyers and fellow citizens . His the Birmingham, Alabama, and Amer· acter, was peculiarly fitted to bea trial companionship and gracious charm ican Bar Associations. In 1974, Mr . lawyer. He could analyze and simplify will be missed. Stewart was elected Lawyer of the the most complicated facts and then Sympathy is expressed to his wife, Year by the Binningham Legal Secre· present them to a jury in an orderly Mrs. Susie Finnell Gross. his twodaugh· taries Association. and logical mann er. He knew, under· ters, Mrs. Margaret G. McCain and Chuck Stewart leaves a large void to stood and practiced the art of persua· Mrs. Bobby Joe Kemp, and other rela· replace in the civil courtrooms of the sion as well as any lawyer in America. Livesand friends. state of Alabama. He leaves with all of Death removed from the scene one of us. however, fond memories of a warm the most talented attorneys ever to and gentle man who loved his work, serve the Alabama Bar. his fellow lawyers, his family and his Devoted to serv ing the law, Stan friends. found time lo be President of both the Survivors include his wife, Mrs. Alabama DefenseLawyersAssociation Barbara Richbourg Stewart: a son. and the Birmingham Bar Association. Charl es A. Stewart lll: a daughter, He used his fine talents and abilities to Miss Jaclyn Stewart: l wo stepsons, lead and influence lawyers. Not only as John and Scott Langley: and a step· an officer in the two named organ iza· daug hter. Laura Langley, all of Bir tions, but by serving the Alabama Bar mingham. in any capac ity where he was called to serve: and often that was. ln a few short years, Stan built one of the most respected law firms in the state. Although this has been a long timeambition, perhaps his greatest joy was the opportunity to practice with his sons: first Stan , and later James. He lived to see both of them firmly C. A. Stewart, Jr. entrenched in the law, building fine Charles Andrew (Chuck) Stewart, reputations of their own. Jr ., of Birmingham died on November Stan loved the great outdoors, and 15, 1983. He was fifty-nine. that was where he spent his short va Mr. Stewart was born on November cat ions. He loved fishing and boating 29, 1923. He served in the United and playinggolf. Nothing pleased Stan States Navy in the Pacific Theatre more than to have his friends visit him during World War II and received the on weekends and relax with him at his Distinguished Flying Cross for a rescue home. of two fellow servicemen under hostile S. R. Starnes His fr iends remember his out· enemy fire. stretched hand when a helping hand He graduated from the University of Stancil Rose (Stan) Starnes died was needed. And his charm, dignit y, Alabama School of Law in 1949 and quietly al home on Lake Martin on De· and wit were ever an insp iration, and began the pract ice of law in Birming cember 16, 1983. He was sixty-one. Stan would be proud to know in these ham shortly thereafter. Stan was an honor student at the things he will not be forgotten. A fine In the years to follow his admission University of Alaba ma, where he grad · lawyer. A perfect friend. A devoted fa. to the Alabama bar. Mr. Stewart be· uated from Law School in 1949. He ther and husband . A happy man. came one of the most well-known and practiced for a while in Oneonta, Ala· He is survived by his wife. Mrs. respected civil defense lawyers in the bama, beforerelocatingin Birmingham, Mary M. Sta rnes; two sons, James H. state of Alabama. He handled some of where he spent the major part of his and W. Sta ncil Starnes, both of Bir· the earliest product liability defense professiona l life. mingham; a da ughte r, Mrs. Marris cases in the state and specialized in He was an accomplished tria l lawyer Stewart, T uscaloosa; a sister, Mrs. that field until his death. who tried and hand led cases in every Eloise Norrell, a brother, Herman Mr. Stewart was a partner in tl1e court in the land. His abilities were Starnes, both of Guntersville. LIS i\/orc/1 1984 @lassified ~otices UPD ATED USCA and All\lur2d. Con· books for sale tact Martha at (205)432 ,0701. services BENDE R'S FORMS of Discovery(Vo ls. FOR SALE: Federal Isl 2d Supplement. l · 16;comp lete set). New cost $770;sell for EXAMlNATION OF QUESTIONED All\lur 2d, ALR3rd, CJS. USCA,Lawyers $.500:Bender's Art of Advocacy(3 Vols: Documents.H andwriting, typewriting Edition U.S. Supremes, Southern .Isl 2d Summation.Jury Selection, Direct and relat~ ~mi nation.s. Internationally & Digest,etc. All National Publications. Exam). New cost, $70 per volume; sell !or court _quahlied expert witness. Oiplomate, Libraries Purchased Nationwide. Profes· $40 each. All bookscomp letely updated: AmericanBoard of ForensicDoc ument sional BooksService . Box366, Dayton. NEW. NEVERUSED. Contac t: T.8. Examiners.Member: American Society of OH 45401.(5 13) 223-3734. WoodwardIV. , P.O. Box340, Reform, QuestionedDocument Examiner s, the In· Alabama35481. (205) 375,2854. ternational Association for Identification, the British ForensicScience Soc iety, and COLLIER'S BANKRUPTCY Practice the National Associationof Criminal l)e. Guide and Third Addition Bankruptcy FOR SALE: AlabamaAppellate Reports Manual. with supplements. Contact:J ohn (Vol. 16·57); AlabamaDigest (3•1 Vols. i n· THE It Frawley.Jr., P.O. Bi>x66111. l rondalc, eluding82 pocket parts); Alabama Re· ALABAMA LAWYER Alabama 35210-2694.Te lephone:( 205) ports (Vols.200.295); Alabama Reporter 956-9749. (28 vols.. 331 So.2d407So. 2d): Collieron CLASSIFIEDS Bankruptcy( 15th ed., 11 vols. including appendices). Available due lo recent All requests for classified ad FOR SALE: CJS.complete and current; merger. All books in new condition. Best placement must be submitted AmJur Proofof Facts and All\)ur Proo!ol written offer:Johnson, Huskey. Hornsby Facts, 2d. both completeand current; & Etheridge, 131No rth Oates Street, Do typewritten and are subject to Bankruptcy Service, L.Ed., complete and than, Alabama 36302. approval. Alabama State Bar current. Coniact: DavidC. Wear. 105 members are not charged for Grand AvenueSW, Fort Payne. AL classified notices. Nonmember 35967.(205) 845-2713. FOR SALE: An\lur 2d, 82vo ls. new advertisers must pay in advance topicservit-e and interim index. Included, and will receive a complimen· 1976Rules ol Bankruptcy volume. Entire tary copy of The Alabama FOR SALE: CJS,all volumesu pdated set $.500. Contact HowardG. Hawk, lawyer following publication. with current supplements to 1982. $2000 Burke & Mullis, 120 South Main Street. firm. P.O. Box 143, Ashville.Alabama Arab. Alabama 35016.Phone 586-4152. Additional copies are $3.00, plus 35953.Phone (205)594 -7108. postage. RATES: SOUTHERN DIGEST for sale. Up FOR SALE: Sacrifice- U.S. CodeAn· dated through 1978,$500. Contact Members: No charge notated, Federal Rules Decisions. Both Vaughn M. Stewart II, P.O. Box2003, Nonmembers: $30 per insertion sets complete and up to date through Anniston. Alabama,16202. Phone of fifty words or less 1983.For more information call Don 238-8543. $.50 per additional word Mayhall.Phone (404) 266,0744. DEAD LINES: LAW BOOKS bought and sold. Wespe Classified copy and payment cialize in publications for the Southeast· must be received no later than ern states. including federal publications. Lhe first day of the month prior SAVE 30-60% Substantial savings over publisher's pri· to publication date, no * * * ces. Lawyers BookCompa ny, P.O. Box exceptions. USED LAW BOOKS 548, Sylvester, GA31791. Macon an swer· * * * ing service (912) 741-8600. MATU NG: • West • Lawyers Coop • Harrison Send classified advertising copy • MatthewBender • Callaghan • Others and your check, made out to \Yanted WE BUY- SEU - TRADE The Alabama Lawyer. to: Law Book Exchang e The Alabama Lawyer P. 0. Box 17073 ALABAMA DIGEST in goodcondition. Classifieds Jack so nvill e, FL 32216 Don't need the criminal law volumes. c/oJe n Nowe.11 1-800 -325-6 012 ContactJim Upchurch,P.O. Box270, P.O. Box 4156 Montgomery,Alabama 36 106. Phone Montgom ery, AL 36101 834-8480. l 19 fense Lawyers. Retired Chief Document Examiner, USA Cl Laboratories. Hans Mayer Gidion, 218 Merrymont Dr.. Mar· tinez, GA 30907.(40-1) 860 -4267. LEGAL RESEARCH and writing ser Setting it Straight vice. Needhelp with a deadline? I have seven yearsexperience in legal research and appellate writing. Access to the larg Tlte A lllbama La11•yer wishes to list appeared of those who made special est law library in the state, plus computer gift contributions to the Center for Pro data base. Rates $30 / hour. Sarah cor r·cc t e rror s that appear in the pub lication wheth er th ey be our fessional Responsibility. The G.P. Ben· Kathryn Farn ell. 2 Woodland HiUs, ,on Memorial Garden was given by Tusca loosa, AL 35405 . Phon e (205) n1ista.kes or those of our so u rces . We ask that reader s promptl y brin g A.G . Gas/011E 11/erpris es, rather than 556 -1451. .4. 8. 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