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VOL 52, NO. 1 JANUARY1991 Brief ON THECOVER - ~ Crv,IR,p Momo,..i. ~•;d ,n Monqjom<,y on "1egrounds ol lhe Soud,em Pt,vertyUlw Center.w•• dod1c.11ed In • P President's Page . 4 CLE Opponunittcs 32 £xecu1weDirector's Repon S Lcglslalive Wrap-up 50 11;,r Briefs . . . r, Recent Decisions ...... 51 AboutMembers. Among Finns . 10 Opin ions of the General Counsel 57 Building Alabamo's Courthouses •••• 12 Memorials...... • 60 Dedi cation/Vance Federal Building. 15 DisciplinaryReport ...... 61 Remartcs/Admissions Cetemony 18 Young Lawyers· Section . • . 62 New Adminees 19 ClassifiedNotices 63 Ah1ban1aS 1a1e 8ar Ht.adqui,,rtersStaff P.O. Box 671 • 41S Oc"ter Avenue • Montgomery, Al.tbJmJ 36 10 1 (205) 269- 1St 5 bK\IIM! D1re<:t.or .R•gmald T. Hamn., , 0.E MCll & Commt""' 5«,etary . o;..,. Wcldon OI....,,.,.ol Progr.am, • Koidi B Norman An.:tncial Secre.Llry G~le Skinner E>tecu11veMSimnt . MJrg.,re1 Boone Lowy,,, Referral S.Crei•ry... • Joy Meininger PubUcalions Olrec:101 . , M;ira.,1rttMurphy Crapl,lc Arts SupetVl,or .. M>l)gleS tuller AdmissionsSe<:retMy ..• N0tm• J. Robbins IOLTA Diroctor. . Trocy O,nlef M~mberlhipServi c~ All«: Jo Hendrix Rec 2 /anuary 1991 ~LABAMALAWYERS SERVING ABAMALAWYERS President'sPage Pro bono publico: programs. Others feel that this should be For the publi c good considered a requirement of a lawye(s admission to pr&Cticeand that delivery he PtOllidingof freelegal services of free legal services to the poor should to the poor has long been referred be mandatory (or those who are given T to as our profession's highest call the privilege or earning a living by prac ing. The Alabama State Baris launching ticing law. Yourstate bar has taken a dif an excitingnew program that wfll allow ferentapp,oact, , and that brings us to the us to expand such services in an organ Alabama State Bar \blunteer Lawyer ized manner, on a statewide basis. It is Program. called the Volunteer Lowyer Program, Our CommiUeeon Accessto Leg;ilSer and I want to share some thoughts about vices believes that when the lawyersol It with you. First. a little background. this state are made aware of the great Lawyers, more than any other profes needs in this area and given an oppor sion, have always been In the forefront tunity to help they wllI wholeheartedly of giving themselves 10 community ser respond. Last summer the board or bar vice. Look at civic clubs, United Fund commissionersappro--ed the committee's drives, municipal boards. little League recommendation for a coordinated ap and Scouung programs, and numerous pro.1Chto this problem, basedon enlist other civic endeavors and you will see ing volunteer lawyers throughout the lawyers, giving freely of their spare time state, and endorsed an application for to help make life beuer for others- IOLTAlunds to hire a state coordinator. Most lawyers are also generous with ALBRlTION The firststep In making this Important their professionaltime ,n cases of need. new program a reality has now been Free legal services to non-profitcorpora- taken. I am happy to announce that with tions or various types a re a common occurrence, and ii IOLTAfund ing. MelindaWaters of Montgomery,a member is rare for a lawyer10 practice very long without develop of the state bar, has been hired as the coordinator of the ing a number of "pets" who cannot afford a lawyer but \blunteer LawyerProgram. Her initial task will be to a Let's Do It! "The bar can and must render more and a buildingitse lf can solve any of the prob improved services to I.he practicing at lems that face us. On lhe other hand, torneys and to the public." without a headquarters suitable to our -Sam W. Pipes, 1963 needs, we will continue to find ourselves Building Campaign Chairman frustrated and handicapped in bringing about those things which should be ac "The Alabama State Bar has made great complishedif the AlabamllState Bar is to progress /11 recent years, as more and continue to come to fullusefulness t o our more Alabama auorneys take a greater members and to its public. and greater interest in il5 affairs, but we The lawyersof this state have been far have now reached a point where ,1de sighted In times past-d1ey builtand paid q11ate facilities are imperative if anything for our original headquarters.They, agai n like our full potential is to be reached." in 1968, raised the funds to build the an -J. Edward Thornton, 1963 nex to the original building. In 1979, the President, Alabama State Bar lawyers of Alabama gave of their re sources to purchase our Center for Pro believe both of the above statements fessional Responsibility on Perry Street to be as true in 1991 as when spoken when no more space was availablei n our I 28 years ago. Through the last 28 original building and no land was avail HAMNER years the bar has been dedicaied to ren able upon which to expand the original dering improved services to the public building. share one common belief with him. I be and the profession.It has justifiedt he faith In 1968, Judge Scott noted, "It would lieve as firmly in 1991, as he did in 1961, of those visionaries who determined the not have been thought possiblein 1961, that our lawyers care sufficientlyabou t bar would have a permanentho me. Like when plans were instituted for a state bar our chosen profession10 meel its needs. wise, as our membership has increased headquarters, that in the span of seven Our goal of 3.5 million dollars is far by some 7,800 new lawyers in this lime years facilities which seemed so com greater than that first campaign to raise frame, the legal profession has seeming modious would become cramped", $85,000 because the number of mem ly been undergoing perpetual changes, when he alened the bar to the need for bers is now almost eighl timesgreater and and both !hose seasoned lawyers as well the annex to the original structure. lawyers' Incomes are many times grea1er as our newer attorneys continue to ex When I succeeded to the position than in 1961. Conslructioncos ts are sig hibit a ongoing interest in the affairs of whichJ ohn Scottheld , he and I knew the nificantly higher tool the bar. Again,a dequate facilities are im bar would continue to grow; however, I All factorsin perspective, it is stilla very perative to our continuing growth and do not think we were alone in failing to reachable goal. I believe we can and achievement of our fulI potential. anticipate the pace at which we would must succeed. The Alabama State Bar had no perma do so. I remember Judge Sean's some Please pledge generously and 1>.arly. nent headquartersfor its first 88 years of what bewildered comments when 59 of Our campaign is one of volunteers. We existence.It operatedwith a part-time sec us sat for the first exam given in the new opled for an lawyer-to-lawyer appeal to retarywho coordinated a network of vol building in February 1%5-the greatest save 1hecost of professionalfund raisers. unteers. I marvel that this was done number of examinees ever-he did not I am dedicating my total personal ef without Xerox, WATS lines, FAX ma know what we would all do. We were fort for the next few months lo this cam chines,overnigh t mall and interstateroads. last able to use the "original" examining paign. I believe in you the lawyers and A properly functioningba r association room because of space limitationsin Feb judges of our state. There is much wori< is a matterof vital concern to every prac ruary 1971, 6,000-plusnew lawyersago. yel to be done on behalf of our profes ticing lawyer whether he or she realizes I would not presumeto equate my own sion and the public we serve. Let's do it it. No one could sensibly maintain that with John Scott's visions for this bar. I do together. • The Alabama Lawyer 5 BarBriefs Myerson and Max elected to serve A native o( Eutaw,Alabama, Roebuck DIALUP a llows access to reco rds organizations holds memberships in the Birmingham The Office of 1he Secreiary of Stale The Birminghamfirm of Nailar, Ocna Bar Association, Alabama Stale Bar and announces the expaMion of an on-line burg. P.C. recemly had two membels American Bar Associa1ion. computer service pilot program. elected 10 serw in different organl1.a- The service is known as OJAI.UP 1ions. (directinfo rmation access using personal Edward P.M yerso,, was elected by the Alabama Environmental Law computers), and ollows users quick [Jo.irdor Gavernors of 1heAmerican Co l Handbook published access 10public records in the corporate lege of Consuuction l.a\vas its firstmem The Borm,ngham firm of Maynard, and Uniform Commercial Code files. ber from Alabama. Cooper, Frierson & Gale, PC. recently OIALUPservice allows all)'Onew,th a Ounng its inaugural meeting last published the Alabama Environmental pe,wnal compu1er,a 1200to 2400 bvlcs month, the College elected 41 auorneys Law l~andbook,wriuen as a resource for per-second modem and a communica from 17si 1a1es as 1s Arstgroup of Fellows. lawyers and nonlawyers who confront tions software package wilh VT-100 Attorneysmus! be nominated for Fellow environmental issues In 1heir practice or emulation capacity to dial directly Imo ship In the College. To qualify for elec- business. The handbook focuses pri· 1he Office of the Secretary oi Sraie com 1lonthey must have: practiced or taught matily on Alabama'senvironmental laws ()llter system. law for a 101alof IS or more years, de as !hey affect the private ..ector and real Subscribers can access UCC filingsby VOiing1he 1en years immediately prior 10 property owners. Ollngnumber or debtor name 10 obtain 1helr nomination 10 construction law; FournierJ. Gale, Ill, H. Thomas Wells, 1ho dale and 1ione of the filing, secured m;ide significan1 contributions 10 !he Jr., Jarred O. Taylor, II, James L. Priester. p.irty,additiona l debtors, continuation of practice of construction law through Alfred F.Smith, Jr., and Kathryn0. Pugh a filing. assignments, number of pages reaching. publishing or industry leader jointly authored the handbook, which filed, and the filings expiration date. ship; anddemonsua1ed 1hehighes1 ethi was published in October 1990 by The corporate .1ccess will display a cal and profe 6 /anuary 1991 mands to search DIALOG. They will even be able to use Wesrs EZ ACCESS, Philip Morri s Comp anies, Inc. to specially designed 10house 1heex hibit. a menu-driven approach that will help sponsor national tour of original Bill The architecture ol 1hepav ilion Is a mix them select the right DIALOGdata base of Rights between aerospace-inspired high tech and to formulate a query that will run in To commemorate the 200th anniver nology structural systems and traditional both WESTLAWand DIALOGda tabases. sary of the adoption of the Billof Rights, gallery.liked isplay space. Visitors will be Under the new arrangement, over 140 Philip MorrisCompanies, Inc.will spon greeted by a collection of video images DIALOGdatabases will be available on sor a national tour of one of the original and graphic displays providing historical WESTLAWearly this year.These fileswill copies of the document. It is scheduled background on the Bill ol Rights. As contain business and financial data, 10 be in MontgomeryJanuary 2 1-23, 1991. visitors move into a large, hexagonally. scientificand technicalma terial, intellec The historic parchment and multi shaped audiovisual theater, they wiII be tual property registration data, and gen media exhibit will travel to all 50 states surrounded by dialogue that explores eral news and information. Additional as pan of the twO-year bicentennial both past and co111emporary civil liber DIALOG databases will be added celebration of the ratificationof the Bill ties issues. Then visitors will enter the Bill monthly. of Rights. Begun in Barre, Vermont, on of Rights viewing room and be as close The existing gateway between WEST October 10, 1990, the 16-monthtou r will as two feet from !he envir onmencalca p LAWand DIALOG, available since 1987, conclude in Richmond, Virginia, on spu le rotect ing the 200-year-old will be maintained. Through this gate February 9, 1992.The Commonwealth of document. way,a ll 380 DIALOGdatabases can be Virginia'scopy of the Billo f Rights,wh ich The 200th anniversary tour is being accessed using DIALOG search has been recently restoredan d is on loan sponsored by Philip Morris Companies, language. from the Virginia State Library and Ar Inc., the world's largest producer of con For more lnformatlo11on WESTLAW, chives, will be featured in the exhibit sumer packaged goods. Its major call 1-600-WESTLAW(1-800-937 -6529). The exhibit will be open to the public domestic operating companies include For more information on DIALOG, call free of charge. Kraft General Foods, MiIl er Brewing 1-800-3-DIALOG (1-600-334-2564) or A 5,000-square-footpavilion has been Company and Philip Morris U.S.A. (415)858-3785, or FAX(4 15) 858-7069. Gathered at the 1990 Southern Con ference of Bar Presidents in White Sulphur Springs, West Virginia, ,vere \ The Alabama Lawyer 7 ber and cha Irperson of the Alabama Blanchard is a 1971 graduate of the Commlnee on Humanities and Public Universityof Alabama and a 1977 grad Policy. uate of Jones Law Institute. He worked Bakeris a graduate of CornellUniver for Alabama LegalServices system from sity School of Law and a 1948 admittee 1980-82; was ln private practice with to the Alabama Stale Bar. Miller & Pappanasios from 1982-85; was a sole practitioner from 1985-90; and now Is a member of the firm of Blanch Blanchard selected Clarence Darrow ard. Calloway & Campbell. Award recipient In describing Blanchard's comribo Baker Blanchard Montgomery nati\'e and auomey Bill uons, Bryan Stevenson, executive direc Blanchard, Jr., was presented with lhe tor o( the Alabama Capital Representa· Alabama S1a1e Bar's Clarence Darrow lion Resource Center in Montgomery, Baker receive s NIMLO award Award. This award recognizes the contri said, "Bill Blanchard has provided com Birmingham's City Attorney James K. butions of on auorney in all areas of in mined and effective representation 10 Baker recenlly received the Nalional ln digent representation covering capital 5(!',1!ralpeople accused of capita I ca stilute of Municipal l.dw Officers Award defense. including trial, appellate, and andhas withstood considerable opposl- for Outstanding National Public Service post Afford able Term Life Insur ance from Cook & Ass ociates The Richard L. Taylor who Compare 1htsc low non•smokcr onnual rates for non decreasing. yearlyrenewable term insurance: was reported in the November MALE AGES $250.000 $500,000 $1,000,000 issue of The Alabama Lawyer 25 248.00 4$5 ,00 845 .00 30 248.00 455.00 $45 .00 as being suspended from the 35 2$5 .00 •160.00 875 .00 practice of law for ten days 40 298 .00 545.00 t ,045.00 45 348 .00 645.00 1.245.00 should not be confused with 50 430.00 8t0 .00 I.S, 5.00 Richard Harrell Ta lor, who 55 600 .00 1,150.00 2.2$5 .00 60 875 .00 1,700.00 3.355.00 practices in Mobile, Alabama, 65 1,525. 00 3,000.00 6,955. 00 with the firm of Jackson & Renewable to age 100. Female rate• same as males six Taylor. years younger Allcoverage pr""1 8 January I 99 r It is an odd circumstance that practic ing lawyers,w ho ought to be most alert of all membersof society to the technical requirements for casting valid ballots, Lettersto the Editor should make as many strange and un necessary errors as appear. As I am sure membersof the bar know,t he ballots are Vaccine Injury Compensation or deaths resulting from such vaccines submitted 10 the Alabama State Bar,and Pruj\ram will be permiued to file claims until are checked by a committee of current I am writing to update some amend January 31, 1991. commissioners.In order to assure both ments to the \f.lccine Injury Compensa The deadline for filingclaims based on the validity of mailed ballots and con tion Program, a no-fault compensation vaccines administered after October 1, fidentialityof the voting. the instructions system for individuals who have been in 1988, depends on 01edare of vaccine ad for casting a ballot and signing the en jured by specifiedchild hood vaccines.'42 mininstration and is governed by 42 velope containing the ballot are set out U.S.C.§300aa -10, et seq. In particular, I U.S.C 300aa-1&. clearly on the face of the envelope itself. call attention to the amendment which Accordingly, we th ink it is crucial that These instructionsare not difficult, but re extends until January 31, 1991,t he filing all attorneysbe made aware of the pro cent elections have demonstrated that deadline for a particular class of cases. gram, the extension of the deadline for fil there are repeated instances of ballots This is discussed more fully below. ing petitions relating to vaccines which submitted where the certification is not As noted in my letter of last January;the were administered prior 10 October 1, signed, is signed in an illegible way (and program, effectiveas of October 1, 1988, 1988,and the statutory provision defin with the printed name nor being filledin) permits individuals who believethey are ing attorneys' ethical obligations. In ad so as not to be able to ascertain whether eligible for compensation to file a peti dition, because the amendmentsinclude the voter is a member in good standing tion with the United Stat~sClaims Court. severaltechnical changes to the Ad, at of the bar, etc. The Secretaryof Health and Human Ser torneyswho plan lo file claims under the In elections during the last two years, vices is named as the Respondent, and program should consult the recent the outcome of more than one contested is responsiblefo r providingan answer to amendments prior to filinga petition for commissioner's race would have been the Court regarding the allegations of compensation. changed had all of the ballots received each petition. The Secretary has dele Specificinqu iries as to filing require been capable of being counted. Because gated his responsibilities under the pro ments and Claims Court procedures ballots could not be counted, due to the gram to the Bureauof Health Professions, should be addressed 10 the United States certification not being signed, or because a component of the Public Health Claims Court, 717 Madison Place, NW, the voterco uld nor be identified, etc., the Service. Washington, D.C.20005 . If you have any actual outcomeof the election could have The Ad imposes an ethical obligation suggestions Tegardinghow to make this been different. on any attorney who is consulted by an informationwidely known,o r if you have For attorneys to go to the trouble of individual regarding a vaccine-related in any questions, please contact David casting a ballot, assembling inner and jury or death to inform such individual Benor at (301)443-2006. outer envelopes,and mailing them 10 the that compensation may be avaif able bar, but then not taking the trouble to ex under the \f.lccine Injury Compensation Michael J. Astrue, ecute the certification properly, is a Program. See42 U.S.C.§300aa-10(b). In General Counsel, peculiar contradiction. I dividuals injured prior to October 1, 1988, Dept. of Health & The purpose of this letter is simply to must withdraw any pending civil suits ii Human Services remind all of the active members of the theychoose to pursuea claim throughthe Washington, D.C. bar who desire to vote for commissioners' program. The previous version of the seats In their circuits to carefully follow statute requriedpetitio11S for these injuries 1..V.. cdnt$t nduded4t lhls thnt ~~ thostagainst 1hefol ~ the straightforwardinstructions for casting lowing diseases:dlp«l,cna , pcnussls, 1c1anus.meas les. to be filed by October 1, 1990. See 42 mumps.rubella.. and polio. valid ballots. The number of eligible U.S.C.§300aa-16(a)(l). O n November 3, voters in all circuits is such that every 1990, the President signed Public Law ballot is potentially decisive, and it is a 101-502,which amended the statute in a shame for the decision to be made with number of respects.See 198 Con. Rec.S v,,lid ballob out being able to count all of the votes. 15196(Oc tober 12, 1990) for the text of This lener is probably out of time se these amendments.Of note among these quence sin ee elections to the board of bar amendments is a four-month extensionof commissioners will not occur again until Richard H. Gill, the deadline for filingpetitions based on next spring. but it seemed to me that the Commissioner vaccines administered before October 1, problem in submitting valid ballotsfor the Fifteenth Judicial Circuit 1988. Those individuals alleging injuries bar commission races ought to be noted. Montgomery, Alabama The Alabama Lawyer 9 Hit the beaches. • • at the Alabama State Bar's 1991 Annual Meeting! • July 18-20, 1991 • Perdido Beach Hilton • Orange Beach, Alabama Look for more information on social and educational events in the May issue of The Alabama Lawyer. 10 /anuary 199 I FEDERAL HABEAS CORPUS PRACTICE& PROCEDURE By James S. Liebman " It ls hardto Imaginehow we managed withoutthis uniqueand comprehensive resoun:e,or why anyoneIn the field would remainwithout It nowthat It Is available. It Is simplyInvaluable!" -M ichaelC. Millman, &J!cutiveDirecwr CalifomiaAppellate Project Federal Habea s Corpus Practice and Pro ced ure is designed to take the attorney step-by-step through the legal policy, strategic, tactical and ethical concerns encounte red in post-conviction litigation. Regarded as the " bible" for any lawyer involved in habeas corpus litigation . it offers detailed analysis of cri tical issues such as exhaust ion of state remedies, appo intment of counsel, proce· dural default, and successive petitions. With authoritative case citatio ns and insightful discussion, this comprehensive book eliminates the need for cost ly On !'OST OFFICE SOX 7S87 • CHARLO'JTIS\1l.LE. VA 2l906-7S87 • 1.SOO.S6?-12l; line search and retrieval services. Please send me__ copies of FederolHabeas OJrpus Practice and Pmceduro, by James S. Liebman, at $130.00· each. I understand that I may return my purchase witbio 30 days without obligation if not completely satisfied. s13000' D payment enclosed less 6% cash discount (save shipping and handling 2 volumes. hardbound charges) with current supplement D bill me, plus shipping and handling charges (TERMS: Net 30 days) o 1968. Tb• Mldll• Comp.ti)' D send me the current Michie Companycatalog Supplo.ments and revised editions issued within 90 days or your purchase will be &enl free of charge. Calltoll -free 1·800-562-1215 ------Zip,___ _ Use Visa or MasterCard •Plus ulc.'S lax y;hffl'i tpplicablc. or order by FAX (804) 972· 7666 11 AboutMembers, Among Firms ABOUT MEMBERS Alabama 35801. Phone (205) 539- 7539. • Jan R. Loomis announc~>sthat he is CJpouano, Wampold, Pre.1wood & engaged,n chepractice ol lawwith ol Sansone, P.A.announces tha1Thomas Randolph P. Reaves• announces the lices at 1275 Center Point Parkway, 8. Klinner, formerlyassistant at1omey relocation of his Montgomery office Birmingham, Alabama 35215-6341. general, Slate of Alabama, has be 10 400 South Uni on Streel, Suite 295, Phone (205) 853-3911. come an associate wi1h the firm. or. Montgomery. Alabama 36104. The fices are localed al 350 Adams Ave mailing address is P.O. Box 4389, nue, P.O.Box 1910,Montgomery. Ala Morris J. Princio•tta , Jr., announces Montgomery, Alabama 36103-4389. bama 36102. Phone (205) 264-6401. cherelocauon ol his offtel! forthe prac Phone (205) 834-2415. tice of lawto 31 lnvemes~Center Park • w;ry.Suite 360, Birmingham, Alabama Roby& Tweedyannou nces chm Pol· Walter F. Scott,• Ill , announces the 35242. Phone (205) 991-8383. ly HowellChath am is now associa1ed opening of The Office of Walter F. with the firm. Offices remain at Wal Scott, Ill , P. C. at Suite 200 Massey J.E. Sawyer, Jr., •announces the re- green ProfessionalBuilding. Su11e 203 , Building.2025 Third Avenue. Nonh, moval of his law office to 203 South 207 Johns1onS1ree1, Southeast , P.O. Birmingham, Alabama 35203. Phone Edwards Street, Enterprise,A labama Box 2925, Dec~tur,A labama 35602. (205) 251-6500. 36330. Phone (205) 347-644Z Phone (205) 353-5212. Anna M. Williams• announces the • William E. Brig•ht, Jr., announces J. Michael Manasco aod Ronald W. opening ol her office for the practice the opening of his new office at The Wise announce 1he formation of their of law. Offices are loca1ed a1 12671 Cole Center. 1100 East Park Drive, partnership, M.1nasco & Wise. Offices Hwy. 90, Suhe 2, Grand Bay, Ala Suite 409. Birmingham, Alabama are located al 2000 Interstate Park bama. The mallingaddress is P.O.Box 35235. Phone (205) 833-4242. Drive, Suite 201, Montgomery, Ala 208, Grand Bay, Alabama36S41-020& bama 36109. Phone (205) 270-1300. Phone (205) 865-3665. Joel F. Danley announ• ces the relo- cation of his office to 2970 Cottage Mark E. Tl11pin•s and Joseph W. AMONG FIRMS HIii Road, effectiveOctober 1, 1990. Strickland announce 1he formation of The new malling address is 2970 Cot Charles S. Doster and Randall M. a panne,ship for 1he practice of law tage Hill Road, Suite 149, Mobile,Ala Wx>drow announce 1heforma1ion ol unde< the name of Tippins & Strick bama 36606. Phone (205) 478-3600. a partnership for 1he prac1lceof law, land. Offices are located at 15 Office with offices at 303 SouthTrusl Bank Park Circle, Sui1e 202, Birmingham, Bert P. Taylor, former• ly of Smith & Building. Annlslon, Alabama. The Alnbama 35223. Phone (205) 870- Taylor. announces the opening of his malling address is P.O.Box 2286, An 4343. officefor the practiceo( law under the niston, Alabama 36202. Phone (205} name of LawO fficeso f Bert P.Ta ylor. 238-6005. RalphG . Holbe•rg. Jr., and Ralph G. Offices are located at Suite 710,Title Holberg. Ill, announce chefo,ma 1lon Building. 300 21st Street, North, Birm Wesley L. l.lird• announces 1hat of Holberg& Holberg.P.C. Officesare ingham,Alabama 35203. Phone (205) Diana Dukes Mock has become asso located at 508 Commerce Building. 252-3300. ciated with his firm.The firm w,11be 118North RoyalS1ree1 , Mobile, Ala known as Laird & Mock, wilh offices bama. Phone (205) 432-8863. William F. Pros•ch , Jr., announces al 104-8 S0u1hCollege S1ree1,Op p, the opening of his officeat Civic Cen Alabama36467. Pho ne (205J493 -9716. Robert E. Sasser• and Dorothy \\ells ter El 12 fanuary 1991 Barker & Janecky, P.C. announces gomery, Alabama 36106 (mailing ad Alabama36532. Phone (205)928- 1492. that lily M. Arnold and F. Page Gam dress: P.O. Box 4008, Montgomery, ble have become associates with the Alabama 36103-4008). Phone (205) The fim1 of Armstrong,• Vaughn & firm. The firm also announces the 244-2097. Stein announces the relocation of its opening of its Florida office at 316 offices at 29000 Highway 98, The South Baylen, Suite 280, Pensacola, The firm of Zeanah,• Hust, Summer- Summit, Building A, Suite 305, Florida 32501. ford, Davis & Frazier announces that Daphne, Alabama. The mailing ad Christopher .Jones has become asS<> dress is P.O.Box 2370, Daphne, Ala The firm of Copeland,• Franco, ciated with the firm. Officesare located bama 36526. Phone (205) 626-2688. Screws& Gill, P.A.announces that Tru at Se.enth Floor, AmSouth Bank Build man M. Hobbs, Jr., has become a ing, P.O. Box 1310,Tu scaloosa,A labama The firm of Green• & Pino, P.C. member of the firm, and Gregory L. 35403. Phone (205) 349-1383. announces that Howard Y. Downey Davis,James F.Vickery, Jr., an d George became associated with die firm, W. Walker,Ill, havebecome associated The firm of Webb,• Crumpton, Mc· effective September 1, 1990. Offices with the firm. Officesare located at 444 Gregor, Sasser, Davis & Alley an are located at 644 2nd Street, North South Perry Street, Montgomery, nounces that the firm name has been east, Shelby Medical Building, Suite Alabama36 104.The mailing address is changed 10 Webb, Crumpton, Mc 205, P.O.B ox 766, Alabaster,Alabama P.O. Box 347, Momgome,y, Alabama Gregor, Davis & Alley, and that E. 35007. Phone (205) 663-1581. 36101-0347.Phone (205) 834-1180. Wray Smith has become associated with the firm. Offices are located at Paul M. Harden• and Anthony J. Roberts,Davidson, • Wiggins & Crow, One Commerce Street, Suite 700, P.O. Bishop announce the relocation of dcr announces that William B. Mc· Box238, Montgome,y, Alabama 36101- their offices to 417 Rural Street, Ever Guire, Jr., no longer is with the firm. 0238. Phone (205) 834-3176. green, Alabama, and the firm's new J. Doug Fields,Jr., forme rly an associate name is Harden & Bishop. Phone of Lorant & Hollingsworth, Birming The firm of WalSOn,• Gammon s & (205) 578-4746 or 578-4219. ham, is now an associatewith the firm. Fees, P.C. announces that George K. Offices are located at 2625 8th Street, Williamshas become of counsel to the Rosen, Harwood,• Cook & Sledge, P.O. Box 1939, Tuscaloosa, Alabama firm, and that J. Barton Warren and PA. announces that Milton Brown,Jr., 35403. Phone (205) 759-5771. William F. Patty have joined the firm is an associate with the firm. Brown is as associates. Offices are located at a 1990 admittee to the state bar. Of Torbert & Torbert,• P.A.announces AmSouth Center, 200 Clinton Avenue fices are located at 1020 LurleenWal that Jack Lee RoberlS,Jr., has become West, Suite 800, Huntsville, Alabama lace Boulevard, Nonh, P.O. Box 2727, an associate with the firm. Offices are 35801. Phone (205) 536-7423. Tuscaloosa, Alabama 35403. Phone located at 1024 Forrest Avenue, Gads (205) 345-5440. den, Alabama 35901.Phone (205) 547- Due to lhe withdrawa• l of Jim De8ard- 7551. elaben as a p;irtner in the firm of Mc The firm of Berkowitz• , Lefkovits, Phillips,DeBardelaben & Hawthorne, Isom & Kushneran nounces that Frank The firm of Schoe• l, Ogle, Benton, and the addition of KennethShinbaum S. James, Ill, formerly associate profes Gentle & Centeno announces that as a name p;irtner,the firm name has sor of law and assistant dean of the Carolyn Landon has become asso been changed to McPhillips, Haw Universityof Alabama School of Law, ciated with the firm. Landon received thorne & Shinbaum,with officeslocated has become a partner in the firm, and her law degree from Cumberland at 516 South PerryS treet, Mon1gomery, Andrew J. Potts and Melissa M. Jones School of law in 1989.The firm is lo Alabama. Phone (205) 262-1911. have become associated with the firm. cated al 600 Financial Center, 505 Offices are located at 1100 Financial North 20th Street, Birmingham, Ala Gathings & Davi•s announces that Center, Birmingham, Alabama 35203. bama 35203. Phone (205) 521-7000. John D. Saxonh as joined the firm, and Phone (205) 328-0480. J. Mark Shaw has become associated Davis & Neal ann•ounces the open- with the firm.Offices are located at 600 Gordon, Silberman,• Wiggins & ing of two offices. The Opelika office Farley Building, 1929 Third AIA!nue, Childs, P.C., announces that Naomi is located at 2200-D l-famil1on Road, Nonh, Birmingham, Alabama 35203. H.ilton Archer, Joseph H. Calvin, Ill, 36801. Phone (205) 745-2779. The Timothy D. Davis, and Linda J. Pea Dothan office is located at 215 West BenjaminC. Maumenee• and Oliver cock have become amcia ted with the Main Street, 36301. Phone (205) 671- J. Latour.Jr., announ ce the fom1arionof firm.Offices are located at 1400 South· 3990. The firm's main office is located Maumenee& tatour, P.C.Offi ces are lo Trust Tower, Birmingham, Alabama al 4144 Carmichael Road, Mont- cated at 23 N. Section Street,Fairhope, 35203. Phone (205) 328-0640. • The Alabama Lawyer 13 BuildingAlabama's Courthouses by Samuel A. Rumore, Jr. regularterm of 1hecircuil coun was held lathers of Elyton hoped 1ha1the railroad al C.irrollsville 0 11Ju ne 5, 1820.like lhe would cross in !heir town just as 1he pre The followingco ntinues a history of Ala home of Major Kelly, this courthouse al war siagecoach routes did, but a real bama's county courthouses-th eir ori Carrollsvillewas a log cabin. es1a1e syndicate purchased land two gins and some of the p Jefferson County William Ely of Hartford, Connecticut, In April t8n, according to Henckell, 11is a liule known fact !hat the first was 1heagent of a school for lhe handi the Elyton Courthouse bumed. This counhousc in Jeffeoon County was not capped which had receiveda Congres struaure was rebuilton me existingfoun the Jefferwn Counly Counhouse. The sional land grant in Jefferson County, dation using the floor plan of !he former reason is that 1he first courthouse physi Alabama. He offeredland from lhis grant cally located rn what is now Jefferson to the couniy for the construaion of a County 5'!f'Wdas 1he Blount County counhouse and Jail.The county commis Counhouse. Blount County was estab sioners gladly accepted this gif1,and the lished February 7, 1818, by the Alabama village which grew from this beginning Territorial Legislature. The act creating wasnamed Ely1on, in his honor. Elyton the county pw,icled lrnllcoun should be became the county seat in 1820. Early held at the home of Major Moses Kelly records showthat the circuit coun heard in Jones Valley.Th is log hu1was localed cases a1Elyton as early as September 11, at a place probably wl1hin a few miles 1820.This firs1forma l counhouse build of the present Jefleoon Couniy Coun ing wasprobably a small wooden struc- house. Various accounts slate lha1 the 1ure construaed by Stephen Hall. home waslocated neat !he old 'Mlrthing In an article published in The Birm• lon Place, In the vicinlt y of present- 14 January 1991 courthouseas much aspossible. Approx imately 75 percent of the funds for re building this courthouse was raised from private subscriptions by th e citizens of Elyton. Meanwhile, the promoters of the new city of Birmingham became ambitious for their town, and they influenced the l. e-• Alabama Legislature 10 call an election ~ r t A :c so that the citizens of Jefferson County .,• ,: ,. ~ •• , -11·.... ' . •: r, n could vote on whether Elyton or Birm 1111 rr rr rr H C ingham should be the county seat. The 1111 election was held on the first Monday in ~- II May 1an At this time the circuit court ; : •••, c ir rr r had only held one term in the newly re consrructed Elyton Courthouse. .. , I 1111; ! ~ e 1873 £ The countye seat lection in Jeffer I I ~ I r son County has gone down in history as one of the "classics"in Alabamapoli tics. ! ~21~f f The promoters of Birminghamstaged a gigantic barbecue on election day. They brought in special trains to carry voters to the polls. They had a band. It was reported that "JeffersonCounty" res idents from as far away as Walker and Blount counties voted in this election. Many of the newlyenfranchised blacks i n the area voted in the election and then feasted at the Birmingham boosters' barbecue. Also in this election, voters were not re quired to cast their ballot in their home box or beat. To say that controls were lax 1!!!1) l I I I I is an understatement. Need less 10 s:rt, 1ouuunu11nn1 ... Birmingham received a majority of the .'" ,. 11nu 11 nnu1111 •'• • votes. While the first courthouse in Birm ingham was being built on land donated by the founding real estate firm of the ci ty, ironically named the Elyton Land Company, the work of the county took place in several existing Birmingham buildings. The county commission rented twO rooms In a building owned by B.E. Grace for the use of the sheriff and circuit clerk. The probate court was housed in a building owned by W.G. 0 1ive r. And the circuit and chancery courts were conducted at Sublett Hall, a theater located at 2013Second Avenue, North. The residents of Elyton became out· JeffersonCounty Courthouse ra.ged. Why should they be required to pay for an extravagant new courthouse pany on May 11, 1874,fo r a consideration The building was constructed at the when they had just paid for a newly re of $30,500. The architea for the first northeastcomer oflhird Avenue and 21st built Elyton courthouse? A court battle Birmingham Courthouse was W.K.Ba ll. Street, North, on property deeded to Jef ensued as Elyton attempted to fight for The building was completed by Frank P. ferson County by the Elyton Land Com "its courthouse:' But Elyton lost the war, O'Brien and Company, successors to pany for $5 consideration. The property and a contract for the Birminghamfacil Bugh. O'Brien later was a mayorof Birm was legallydescribed as the west 150 feet ity was awardedto FrankBugh and Com- ingham. of Block 75. The Catholic Bishop of The Alabama Lawyer 15 Mobile owned the east 250 feet of the chosen as contractor. On June 16, 1869, demned for use as a courthouse without same block. This counhouse site Is pres ihe county commission accepted the an authorizing elee1ion. So the court en1ly the Downtown YMCAproperty. new courthouse. house commission returned to its orig The courthouse was described as be This brick building was four stories inal plan and decided to have the court Ing a two-story red brick building with high with a centraldock tow1.~ rising 180 house built on the propeny already dimensions of 64 by 86 feet. It had a feet. Photographs of this building show owned on the east side of the park. Hola dome which conmined a clock with four that it was a r.ning complement to the bl rd and Root ol Chicago and Harry B. faces. On the frontpediment facing Third Gothic St. Paul's Church which occupied 'M.>elock of Birminghamw ere selected as Avenue sat a zinc eagle atop a globe. It the other portion of Block75. This court architects. was reported that the first ffoor ceilings house served the county from 1889until The project was started In April 1929. were 15 feet high, the second Roor ceil 1931. The beautiful old building was Site preparation and phase one "-ere ings were 14 .feet high, and the circuit razed in 1937.This propeny remained a completed by August 1930,bu t work was courtroomc hamber ceilingswe re 22 feet parking lot until the Downtown YMCA stopped duo 10 a lack of funds in part high. was built 1here In 1984. caused by the Depression, and there was The first session heard at the first of. The present Jefferson County Court some question of whether the court flcial BirminghamCourthouse was held house has a unique history itself.A deci house would be finished. Monday, May 17, 1875. The bullding was sion was made as early as 1923t hat the On March 10, 1931, an additionalbon d accepted as complete by the county on growing JeffersonCou nty would need a Issue was approved by Lhe IIOtersof Jef June 7, 1875, and as final touches the new courthouse and that the slle should ferson County. On March 11, 1931, the county purchased 21 spiltoons and 200 be at Woodrow Wilson Park. In 1927 a cornerstone was laid, thus symbolizing feet of hors~itching racks. Jefferson County Courthouse Commis the optimismthat this building would be This courthouse served the county 12 sion was created by the Alabama Legis completed. It is Interesting 10 note that years until a comminee of archilec:t.sand lature. the date on the cornerstone reads 1929, businessmen appointed by the probate The first hurdle that the new court although the stone was not actually laid judge declared the foundation unsafe house commission had to face was a until 1931. and condemned the building. On Octo challenge 10 the general location The present Jefferson County Court· ber 14, 1887, the county purchased from selected. The original act of 1873call ing house was dedicated Friday, December the Bishop of Mobile a SO-foot strip of for an election to determine the location 3, 1931,and it was formallyacce pted by land adjoining the courthouse site to of the JeffersonCou nty Courthouse had the county as complete on January 28, build a largercourthouse. This purchase specified that If the voters approved a 1932. The building itselfis o( granite and of 50 feet cost the county SS0,000.The m 16 January I 99 I Speechat the Dedication ofthe ''RobertS. Vance Federal Building'' October 8, 1990 as a United St.-.tesCi rcuit Judge. Judge except by judgment of a duly constituted by Hon. Frank M. Johnson, Jr. Vance was appointed to sit on the Fifth court applying the law of the land, that Circuit Coun of Appeals on December for any wrong there is a remedy under \Ne come here today to dedicate this IS, 1977, and entered duty on January 3, the Constl1u1ion and laws of this coun former federal courthouse In honor of 197a H e served as a circult judge firsto n try.J udges areea leeted or ppointed and United States Circuit Judge RobertSmith the FifthCircuit and then on the Elewnth their tenures come to an end. One gen Vance.\Ne do so no110memorialize this On::uitwhen it wascreated In 1980.0-er eration rapidly succeeds another. But great jurist. statesman,and friend. Rather, 1he 12 years that he served his country regardless of the individual who OC· In naming and dedicating this building as a circuit iudge he came to represent cupies the bench, the courts-bo th state the "Robert S. Vance Federal Building," excellence, demonstrating reason, cour and rederal-,a nd the law they dispense we celebrate the contributions Judge age, and integrity.He was, as ChiefJ udge remain supreme. Strong traditions, con• Vancemade to our nation and allow his Tjoflat has often said of him, "a judge's secrated by memories, fortifiedwith the Ille to stand before us as a symbol and judge." It is his qualities as a judge I steadfast suppon of the profession that reminder of the epitome of excellence would like for us to focus on today as we surrounds them, the courts have existed which those contributions represent. dedicate this old courthouse now re Independently of the men and women Those contributionsbegan early in the ferred to as the Federal Building. For in who have sel\1!dupon them. In this man life of Robert Vance. N-r one to seek aflixingJudgeVance's name to this struc· ner, the courts have maintained the the limelight, yet a leader among his ture, ,o,e cause It to become imbued with precious supremacy of the law without peers, he servedas student body presi which our c:ountry could not survive. dent at the University of Alabama where While it may be possible, as Sir he graduated in 1950. He went on to earn Thomas More opined In describing his a law degree from the Universityof Ala· concept of Utopia, 10 live without bama Law School in 1952 and an LLM. lawyers,'h Is not possible for society to degree from George Washington Law get along without judges. Judges guard School in 1955. the gate betwt..-en order and anarchy. Robert Vance servedhis country dur They are the presen,ers of our system or ing the Korean conmet as a member of ordered libenies. Each judge sitting In the Judge Ad\'OGlteGeneral's Corps of this country, whether in a state court or the United States Army. He later con a federal court, whether in a trial court tinued serving his country as a member or an appellate court, has a graverespo n Johnson v.ince of the Am,y Reserves,r etiring at the rank sibility to maintain our sys1em of ordered of lieutenant colonel. liberties by maintaining supremacyof the He praeticed law here In the city of these qualities;we cause it to symbolize law so that-to paraphrase Theodore Birminghamfor 21 years. Dunng part of the excellence which fudge v.ince strOYe Roosevelt-no person is abOYeth e law that time he served as chairperson of the for in his work and in his life; we cause and no person is below It. On his watch, Alabama Democratic Party, leading that it to become a constant reminder or the as keeper or 1hat gate between order and party through a troubled time. calling standards to which we should all aspire anarchy,Robert Vance na,er nodded off, that political body to mOYebe-,ond the in oor work In the judiciary and the legal but remairn!d l!\er alen. past and to build bridges into the future. profession and in our service to our I ,-ould like to focus today on three RobertVance was a dedicated husband country. qualities exemplifying Judge Vance's to his wife, Helen Rainey Vance, and a Because of the work of Individuals work on the bench, though there are, of loving father to his two sons, Robert,Jr., such as Judge Vance, the people of course, othe!l', three qualities in which and Charles. and he ,-ould have. I kn<1,v, America h;:,velearned to h;:,vefaith In he excelled and in which he stands as been a proud and caring grandfather to their courts and pride In their judges. an example 10 us all: reason, courage, the newest member of the Vancefa mily, Most lay citizens do not understand juris and integrity. Robert SmithVance, Ill , born just this last dictional problems or legal procedures. 1. Reason September 14, to Robert, Jr., and Joyce Nevertheless, the individual citizen has In keeping his watch, Judge Vance was White Vance. confidence in the law. The individual a man of sttong reason. /\s Chief Justice While Robert Vance pmeticed before citizen knows that oppressiol) has 115 of the United States Supreme court John me when I was a district Judge he was limits,t hat no agency or powercan trans Marshall stated in 1803 In Marbury v. a very good lawyer, but I knew him best gress upon Individually owned property Madison,' "'It Is emphatically the pro- The Alabama lawyer 17 vince and duty of 1hejudicial depar11nen1 In granting thefederal judicial)' power At times. it takes tremendous courage 10say what 1he law is. Those who apply 10decide cases and conlr 18 /anuar)• I99 I toward not only the logical conclusion- In conclusion, as we dedicate this who has given his name to Lliis building but also the ;ust conclusion. When I beautiful old building-a building listed and his life in service 10 his country- let spoke a momeni ago of the courage on our National Historic Registcy-as we him stand before us as an example to which Judge Vanceexhibited in his work, name it the "Robert S. Vance Federal which we might all aspire in our work I spoke of his ability to fulr.11the duty of Building'~ let us pause, each of us, to and in our lives. May we not ever forget his office in the face of pub Ii c outccy. contemplate the life of this great jurist, Robert Vance. • When I speak of his integrity as a judge, statesman, and friend. Letus remember that with his life and energy he strove to FOOTNOl'tS I speak of his carcyingout of those respon I. Mort. Thornll.),Sir. UloPI~. Bk , l , p.299. sibiI itie s free of the need to please, the contribute to his community and his l. S U.S. 11CranchJ 137 , 177 (180JJ need to please not only what may be a country. He was a man of reason, a man J, 69:t F.2d 1243IS-th C11 , Unit B 19821{en bancJ, 4, Sirrlt.and \I \-.tuhinsron.<166 u.s. 668, 109r198·0 "'",' ' faceless public, but the need to please of courage, and a man of integrity. shall, J., dis.senting). particular individuals in powerful posi Through his contribution, this world was 5. M.ldison'S>hkJttS >1 0 1he US. HouK'of Rep«.'Sfflttl.M?S. June8,. 1789. l., Levy, Yhc-Sup,cmC'Court Under EarlW..r tions. Judge Robert Vance never ap made a better place; through his exam rt'n C19n>. ple, he continues to lead us. As you who 6. de Tocqucyllle,Democracy m Ameoc;.. 106 (1641), proached a judicial decision with a 7.Ch.lmbeB v. FJorida,J09 U.S.227,24 1 U940)(81.)(k, µ. concern as to how that decision might work in this bui Iding labor, as you who 8. 675 F.ld 680 (S1hClt 19821 affect his reputation in the eyes of those pass it by on this city's sidewalks and 9. Id. 111693. 10.C.reren 'i. UnllNISt.11cs. )S6 U.S. 165, 198f19s.81.81ack , who wield influence in society,of those streets glance up at it, remember the man t., d1sse,uinJU, who exercise power in government, of those who hold the influence and power to elevate judges to higher courts. Rather. aoo i s UY CROY£R s. McLEOD Judge Vance addressed his decisions Civil Action• at Law ln Alabama. Second Edition with judicial honesty, with judicial xxxxll, 686 pogee (1ncludot pocket pa~ts• $69 . 00 straightfo,watdness, with judicial up Civ il 1\ct..lons at Law in Alobomo, 1990 pC>Cket p.:txte rightness. 206 p.ages 21. 50 Though as members of the human race Equitable Remedies and Ex~raord in4ry Writs we may fall short of integrity at times , a in Alabama judge in his or her work on the bench xxxlll, Sia paqes {inc l udes pocket parts) 60.00 cannot. A judge must always be con tgu i t4blo Remedies and Extraordinary Writ s sumed by a passion for justice which pro in Alabama. 19§6 pocket parts 261 po901 l0.00 pels judgment toward the just conclu· Trial Praccice and Procedure in Al4bama sion. It was Judge Vance'sst rong opinion xxxv11, $84 pages tlncludos pocket parts) 65.00 that when the judge dons the black robe, Trlal Practice and Procedure Ln Alabama, the judge puts aside personal ambition 1988 poc~ot parts and aspires only to justice. 171 pages 25, 00 This quality in a judge, I submit to you, worker's Corn cnaation !or on-the-Job ln urles n A a.bama is essential to the preservation of our xxx pl..,, Jso pages 69.00 society. looking back over my 35 years Tho Choat of the Chimera and The Stowa wo - A on the federal bench, and the changes Ghost - S 2 u mar Lne Stor y ; an P cture o H dwa~ that have been wrought in our society Island 1§42-43. Both are intr19u i n9 and lntertw ne. 19.9S through the courts during that time, I The su l tan's Cold. A World w~~ 11 subffiarine removes havecome to the firm conclusion that the the Sul tan of Brunei's qoldr a part is pi l fered by crew members and latoc La found by a Blnninqh am American people believe,funda mentally faJnily, who usea lt to found an industrial empire. 19.9S and absolutely, in the rule of law. They Sub Duty . McLeod'• intimate story of service Ln may disagree with the law; they may seek World Wer 11 combat su~~orines. Thie may be the to change the law through the political best s-Ub111or.inobook oC t..he war . 19 . 95 processes-thei r right to do so is ab The Tria l s of rat, an Illustrious Member of solute. But we as Americans revere the the Crl.ltl1nal BAr, A aerie» ol 1ntr19uing eriais of FAT, a colorful Bir~in9htm criminal law yer, There concept of justice and the rule of law. are de l ight f ul c horocteri~otiont, courtroom dramas, Once we understand what the law is and details about nightlife, plu• mystery. 19.95 know that the law is just, we obey it This fact underlies the stability of our polity; ORDERPROH: without justice we cross through the gate Manchester Press, e. O. &ox SS0102, Birmingham , AL 35205 that stands between order and anarchy. PROVIDE YOUR: As I stated at the outset, it is the role of the judiciacyto guard that gate by say. ing what the law is. I( the rule of law is to emanate justice, then the judge must CJTY, STATE, ZIP: ______have integrity. Rohen Smith Vance per CHECK: ______C.Rt:011' CARD t :______sonified such integrity. The Alabama Lawyer 19 Remarksby Alabama Supreme Court JusticeHugh Maddox October23, 1990, Admissions Ceremony,Montgomery, Alabama (Thefollowing remarks.edited forspace, "Writing about the resul!S of this "This past summer. I was privileged to were addressed10 one of lhe /al'fl(!n changed behavior on the part of the auend an annual meeting of the Ameri groups of admiuees ever sworn in in a judges and lllWyers,Odgers penned: 'The can Inns of Coun in Washington, D.C. single sitting In Alabama.) moral lone or the Bar Is wholly differ Gathered there for that meeting were ent . .. they no longer seek to obtain a judges and lawyers from throughout the ". , • You have taken a most solemn temporary vi<;toryby unfair means; they United States and former Chier Justice oath today. It is shon, but i1 is powerful. remember that it is their duty to assistthe Warren Burgerand present Chief Justice It is so powerful, in fuct,that vinually all Coun in eliciting the truth: William Rehnquist, and Se\'eral or the or the Rules of ProfessionalConduct "In the second part or the oath you Justices ,vere there. The subject or the could be summed up in that shon, sim promised that, Wi th all good fidelity,as conrerence was: Law:Business or Profes ple oath which you lust took. It is the sion? One of the speakers on that occa same oath which each of us took. II is sion was a high-ranking English jurist, the same oath other lawyers before you The Right Honorable Lord corr of took. What does ft mean? Chieveley. "It begins: 'I will demean myselfas an "Speaking of the value or the rule or anomey, according 10 the best of my law, he said: 'Freedom in the world de learning and ability: Demeanor means pends upon che dispensing of practical behavior toward others. It means appear justice and the belief in the rule or law: ance and it means conduct. In shon, it "Today, you ha\1?solemnly promised means 10be civil In all )1)Urdealings.Be that you will act like a lawyer. look like ing an attorney means something. Ill· a lawyer and be Hke a laW)'er. torneys are supposed to act like they are anorneys-a t all times- to the very best "If you keep that oath, your future wlll of their learning and ability. be secure. and someday some writer, like "Civility in the practice of law is most Odgers, will say of you that the moral imponanL A great 19thCentury English tone of the Alabama Bar is different barrister, Odgers, writing at 1he end of they do not seek to obtain a temporary 1ha1century about the English judicial Maddox victory by unfair means; Cheyare honest system, said that formerly English Judges in their dealings with the court and fel browbeat the prisoners, jeered at their ef well 10 1he court as to the client, that I low lawyers,a nd they remembered the lons 10 defend themselves, censured will use no falsehood or delay any per oath they took when they became a juries who honestly did their duty, and son's cause ror lucre or malice: In that lawyec 1ha1formerly , 100, counsel bullied the portion of the oath you have promised "Or maybe some writer like Harper witnesses and peNened what they said. to be faithrut to the couns and 10 your lee will write about you as she did In the "He then noted that the auinude and clients, that you will be honllst, and that counroom scene In To KIii a Mackins · 1empero( the Judges towardp arties, wit· neither money nor the desire to get even bird, as Anicus Finch was leaving che nesses, and prisoners co mplete ly will get between you and the goal of~ counroom a(cer hearing the jury return changed, and that the Bar began 10 be ing that justice is done. Justice will al a verdict of guilty againn his cllen1, Tom hilYI!like lawyers were supposed 10 ways hil\1?priority. Thal Is a solemn Robinson, 'Miss Jean Louise, stand up. behave. undenaking. Yourla ther's passin7' • 20 January 1991 AttorneysAdmitted to Bar,Fall 1990 Cabell Montgomery Adams ...... Birmingham , Alabama Michael Stephen Dampier ...... Hoover, Alabama Russell Wayne Adams ...... Birmingham, Alabama Lajuana Sharonne Davis ...... Montgomery, Alabama Wayne Kimbrel Alexander, Jr...... Oecawr, Alabama Timothy Donald Davis ...... Birmingham , Ala bama laura Cockrell Alfano ...... Birmingham, Alabama Jennifer Perrine Dent ...... Anniston, Alabama James Cathey Alison ...... Huntsville, Alabama Matthew John Dougherty ...... Bessemer, Alabama Michael Bradley Almond ...... Decatur, Alabama Kevin Martin Doyle ...... • . . Birmingham, Alabama Robert Mitchell Alton, Ill ...... Montgomery, Alabama David Jeffrey Duke ...... Birmingham , Alabama Mary Riseling Amos ...... Birmingham, Alabama Garter Hurd Dukes ...... Birmingham, Alabama Rebecca Jean Anthony...... Birmingham , Alabama Darlene Upton Eason ...... Haleyvi ll e, Alabama Naomi Hilton Archer ...... Birmingham , Alabama EmilyCuby Eberhardt ... . . • ..•. Birmingham, Alabama li ly Margaret Arnold . ...• ...... Mobile , Alabama Wayne Alan Ehlers ...... Ozark, Alabama Daniel Hall Autrey ...... , ...... Greenville, Alabama Martha Warner Elbert ...... , ..... Huntsville, Alabama Drew Penick Baker ...... Birmingham , Alabama Michael Dwayne Ermert ...... Hoover, Alabama John Herbert Baker, 111•.•••.•••• Thomasville, Georgia Elizabeth Anne Evans .. . .. , . . .. Birmingham, Alabama Paula Janine Baker ...... Pelham, Alabama Jeb Stuart Fannin ...... •• ...... Talladega, Alabama Christopher Allen Barker ...... Mobile , Alabama Aziz David Fawal ...... Birmingham, Alabama Mack DeWayne Beesley ...... Monroev/1/e, Alabama Pattie Perry Finney ...... Bitmingham , Alabama Lewis Ermon Bell, Jr...... Huntsville , Alabama Robert Bartlett Folsom, Jr...... Anni s1on, Alabama Edward Franklin Berry ...... Columbu s, Georgia Scott Wells Ford ...... Birmingham, Alabama Stephen Thorn Blackburn .. . •.. . Birmingham, Alabama Arnita Brown Foster ...... Birmingham, Alabama Edward Eugene Blair ...... Cleveland , Alabama Victoria Jeanne Franklin ...... Birmingham, Alabama Emily Sides Bonds ...... Birmingham, Alabama Terri Lynn Fritz ...... Birmingham, Alabama Tadeusz Augusta Borowski, Jr...... Pensacola, Florida Wesley Milton Frye ...... •. .. . -.. Trussville, Alabam a Laura Way Brewer ...... Birmingham, Alabama Ben Andrew Fuller ...... Prattville, Alabama William Haynes Brooks . . . , . . .. Montgomery, Alabama Darla Tolomei Furman ...... Huntsville , Alabama Millon Brown, Jr...... Tuscaloosa, Alabama John Kennedy Gallagher ...... Birmingham, Alabama Sarah Fain Browne ...... •. .... Birmingham , Alabama Forrest Page Gamble ...... Birmingham, Alabama Steve Ray Burford ...... Birmingham, Alabama Perryn Godbee Ga.zaway ... . .•. Montgomery, Alabama Tonya Frazier Burleson ...... Birmingham, Alabama Steven John Giardini ...... Huntsville, Alabama Raymond Douglas Burns, Jr...... Bessemer, Alabama Jeffrey Paul Gilliam ...... Birmingham, Alabama Jennifer Manasco Busby ...... Homewood , Alabama James Robert Gillis ...... Birmingham, Alabama Charles Glen Bush ...... Jackson, Mi ssissippi Christopher Brandon Glass ...... Birmingham , Alabama Russell Keith Bush ...... Opelika, Alabama Mary Warner Godofsky ...... Birmingham, Alabama Elizabeth Anne Callen ...... Fort Deposit, Alabama Delane Sizemore Goggans ...... Montgomery , Alabama Sandra Jones Campbell .. ..• ...... Talladega, Alabama James Glenn Coggans ...... Montgomery, Alabama Frank Mark Caprio ...... Huntsville , Alabama Allen Eugene Graham ...... New Orleans, Louisiana Terry Lee Carlisle ...... Tarrant, Alabama Kevin Darrell Graham ...... Mobile, Alabama Henry Lomax Cassady, Jr...... Mobile , Alabama Stanley Fitzgerald Gray . .. . •. . .. Montgomery, Alabama Frank Merriman Cauthen, Jr...... Birmingham , Alabama Troy Lee Grayson ...... Alabaster, Alabama WIiiiam Russell Chambers, Jr.. . . . Birmingham , Alabama Susan Lee Gunnells ...... Montgomery, Alabama Karen Palmer Chambless ...... Montgomery, Alabama James Alexander Hagger1y, Jr. . ... Birmingham, Alabama Jasper Knigh1Champion, Ill ...... Florence, Alabama Howard Evan Halsey ...... Birmingham, Alabama Donald Lee Christian, Jr...... Huntsville, Alabama Benny Charles Hand, Jr...... Opelika, Alabama Bette Lilla Cousins ...... Wetumpka, Alabama Carla Miller Handy ...... Tuscaloosa, Alabama David Morrison Cowan .. . .• .... Birmingham, Alabama Robert Kevin Hanson ...... Albertville , Alabama Ginamarie Bozkurt Cox ...... Birmingham, Alabama Betsy Martin Harrison ...•...... Birmingham, Alabama William Stanley Cox, Ill ...... Birmingham , Alabama Crystal Kay Hartley ...... Brent, Alabama Elizabeth Ellen Craft ...... Birmingham , Alabama Ellen Marie Hastings ...... Montgomery, Alabama Willie Derrick Crawford ...... Auburn, Alabama Jon Brennan Hayden ...... Clanton, Alabama Peter Montgomery Crofton ...... Montgomery , Alabama Debra Ann Hendry ...... , ...... Phoenix, Arizona Jane Emily Crosswhite ...... Birmingham , Alabama Robert Daniel Henry ...... Birmingham, Alabama The Alabama Lawyer 21 Kcnric Wood I lcrrcn ...... Birmingham, Alobama Steve Eusene Martin ...... Birmingham,Alabama Charles Hor1on Hillman . . , . . .. . Mob/le, Alabama Warren Carroll Mauhews , •. .. .. Birmingham, Alabam.1 Jack Buster Hinton, Jr. . . • . . . Montgomery, Al.lbama Roben Sidney McAnnally . Mobile. Alabama VirgoniaFrances Holliday Birmingham, Alabama Thomas Granville McCroskey . . • Mobile, Alabam,1 John Robert Holliman . . . . • Bessemer, Alabama wune Talmage McGriff . . .. Birmingham, Alabam,1 Peggy Christine Hooker. Birmingham, Alabama JefferyWayne McKinney ...... Huntwille. Alabama William Lee Horn ...... Haleyv//le, Alabama John David McKinnis.• , . , ...... Kingsport, Tennes$eC Monte Arnold lio rto,1 . . . . Birmingham, Alabama S1evenTodd McMe<:kln ...• . .. Birm,ngham,Alabama Woodrow Eugene Howard, Ill ... Mobile, Alabama Rooker Asher Mears .•. .. . Birmingham. Alabama Glenda Faye Hudson...... Jasper, Al.ibama Melanie Ferris Merkle • . . . . Birmingham. Alabama Christopher Joseph Hughes . .. Auburn, 11/aooma Pamela Jane Michigan Lynchburg. Virginia Will/am Byron Hurley Summerville, Georgia Bfian Wesley Moore. . . Montgomery, Alabama Michael Frederick Hygh ...•.... Birmingham, Alabama William Kyle Morris ...... Montgomery, Alabam,1 Douglas Wayne Ingram •• . .•.... Birmingham, Alabama Mlchac:IDouglas Mulvaney ...... Birmlngl!am, Alabama Brian Carre, lsphording . . . . . Homewood, Alabama Mercedes Murrell ...•. . Birmingham, Alabama Sarah Bruce Jacksoo . . . . Birmingham, Alabama ElizabethBraden Nash Oneonta, ,\labama Christopher Hoyl Jones . . Tuscaloosa, Alabama Philip ude Newman ... Birmingham, Alabama Melissa Montgomery Jones Birmingham, Alabama Richard Russell Newton ...... • Slocomb. Alabama Rhon Eugene Jones .... Montgomery, Alabama Michael Carlton Niemeyer. . . . . • .. Momrose, Alabanw Richard Leslie Jones...... , Birmingham. Alabama Michael Patrick O'Connor ..• .. Monrgomery, Alabama Richard Jordan, Jr...... Wt>SI Palm Beach, Florida Jonathan Edward Ozmint . . Burling1on, North CarolinJ Shelley Davis Jordan . . . • • Birmingham, Alabama Julie Ann Palmer ...... Birmingham, Alabama Richard Kelly Keith . . Montgomery. Alabama JeffreyWade Parmer ...... Montevallo. Alabama Walter Allen Kelley ...... Huntsville, Alab.Jma James Cecil Paschall •...... Birmrngham,Alabama Sarah Anne Killlngsworrh • . • , Tuscaloosa, Alabama Jeffrey Earl Panerson •. , •...... , • laneu, Alabama JuIla Carol Kimbrough. . . . • . . . Helena, Alabama Rebecca Emily Patty ...... ••. , Warrior, Alabam,1 Mark Edward King. • ...... Tuscaloo~. Alabama Willian, Franklin Pany ...... Huntsville, Alabam.i William Rufus King Montgomery, Alabama Linda Jo Peacock .•.... Birmingham, Alabama Nancy Ann Kirchberger . • • Birmingham, Alabama John M . Peek . • . . Oozier. AlabJma Manhew Taylor Knight . . • • B,rmingham, Alabama JamesCarey Pennington . . • . . . Birmingham,Alabama Terry Joe Knight...... , • . . . Birmingham, Alabama Clif1onBenedict Perry , , ...... Auburn, Alabama Paul Ranson Knighten...... Monrgomery,Alab,1ma James f>ricePewin ...... Birmingham, Alab,ima Donna Lynn Knous . Montgomery, Alabama Wendy Atkins Pierce ...... Fairhope, Alabama George Edwards Knox, Jr...... Huntsville, Alabama Charles Pillineri . . . . • . . . . . Gainesville, Florida Hugh Gale lacy . Huntsville, Alabama Hany Searing Pond, IV •...... ••.. Mobile, Alabama ElizabethAnne land . . . . • • Tuscaloosa, Alabama Jon Cole Ponis ...... • Monigomery, Alabama Jerry Dale Lawrence, Jr...... •. Fayeue,Alabama Pa1rlcia Jones Pritchell , •. , Holt, Alabama Earl Howi!ld Law~on,Jr. . .. . ••...... /asper, Alabama Royce Allen Ray, Ill,,, ...... Mob/le, Alabamd Cynthia Juanita Lee • • Dec.itur, ,llabama William Herbert Reece . . Mobile, Alabama KimberlyRhea Lentz . . . • Decatur, Alabama Earl Joseph Reuther . • • . Mount,1in Brook..Alabama James Morris Lewis . • • Birmingham, Alabama Beverly loan Rickels ..•.. Birnungham, 11/abama Nelda Alexis lewis . . . . . • . Brewton, Alabama Kenneth Joseph Riemer Montrose, Alabama James Flint Liddon, Ill ...... Mobile, A"1bama Anthony Mark Riner ...... •...... KIiien, Alabam,1 Albert Dobbins Lipscomb, Jr...... Bessemer, A/olbama Donald Ned Rizzardi . , •...... , /-luntsv;//e,Alabama Cour1neyAnn e Loftin ...... Monrgomery.Al.ibama Arlene Vandiver Robbin~ ...... Sheffield, Alabama David Wayne Long . . . . . Birmingham, Al,1bama Jack lee Roberts, Jr. G.iclsden, Alabama Nina laflcur Lucken . . . . Birmingham, Alabama Scon Michael Robens • • . • . . • Florence, Alabama Timothy Randall Lyons. . Montgomery, Alabama Eli1~bethAnn Roland . . • Brrm/ngham,Alabama Pamela Lorraine Mable . . . Montgomery.Alabama Roger Shayne Roland ..• Tuscaloosa.Alabama John Mark Maddox ...... , ...... Dothan, AIRbama Chrls1opher Todd Roper . • .... Siler City, North Carolina Susan Marie Margolies . . , , ..• Hoover, Alab.ima Dale Yvonne Rouse ...... Columbiana, Alab,1ma Ann Dunagan Marshall • . . . • Btrmingham,Alabama David Alan Ryan • • • ..... Brrmrngham. 11/abama Evans Harwell Marshall .•.•..•. Montgomery, Alabama JeffreyWood Salyer •. Pelham,Alabama Steven Troy Marshall . . . Birmingham, Alabama Paul Christian Sasser, Jr. . •. ... Montgomery, Alab;ima Ruth Ann Manin • . Huntsville, Alabama Jane Ellen Schaefer . . . Birmingham,Alabama 22 January 1991 Sandra Rogers Segal ...... •... Montgom ery, Alabama Ahrian Davis Tyler...... •... Birmingham , Alabama John Banks Sewell, Ill ...... Belle Mina , Al abama Carl Ethridge Underwood, Ill ...... Anni ston, Alabam a Roland Cooper Shauuck ...... Tuscaloosa, Alabama James Frank Vickrey, Jr...... Monrgomery, Alabama John Mark Shaw ...... Sylacauga, Alabama Chad Stewan Wachter ...... Montgomery , Alabama Susan Lorraine Sheffield ...... M obil e, Alabama Glenn Gerald Waddell ...... Birmingham , Alabama Franklin Louis Shuford, Jr...... Mobil e, Alabama Martha Ann Wagner ...... Huntsvill e, Alabama Susan Joyce Silvernail ...... Birmingham, Al abama Junhong Wang ...... Huntsvill e, Alabama Naneue Sims ...... Birmingham , Alabama James Banon Warren ...... Huntsville, Alabama Graham Lansford Sisson, Jr...... Birmingham , Alabama John Edward Warren, Ill . ..•. . .. Birmingham , Alabama Clifton Eddie Salten ...... Tuscaloosa, Alabama Gary Lee Weaver ...... Birmingham, Alabama Christopher Dalton S. Smith ..•.. Birmingham , Alabama John Fuller Weston, Jr...... Mobile, Alabama Felton Wimberly Smith ...... Birmingham , Al abama Stephen Errol Whitehead ...... Birmingham , Alabama Gregg Lee Smith ...... Birmingham , Alabama Davis ButterfieldWh ittelsey ...... Opelika, Alabama John Elton Smith, Jr...... Tallahassee, Florida Mary Ponder Wilson ...... Birmingham , Alabama Rozalind Terese Smith ...... Fairfield, Alabam a Miriam Denise Witherspoon ...... Fairfield, Alabama William Gregory Smith ...... Birmingh am, Al abama John Michael Wood ...... Birmingham , Alabama Elwyn Berton Spence . . . . •. .. .• . Birmingham , Alabama Sarah Elizabeth Yates ...... Birmingham , Alabam a Carey Wayne Spencer, Jr...... Birmingham, Alabama James Arthur Yealy ...... Birmingham , Alabama Victor Ray Spencer ...... Bessemer, Alabama December 1990 Admittees Stewart Gregory Springer ...... Birmingham. Alabama Harmahinder Singh Bagga ...... Birmingham, Alabama Frederick Hanso,1 Stevens ...... Evergreen. Alabama Philippa McClellan Bainbridge . New York City, New York William Benton Stewan ...... Birmingham, Alabama William Leon Brantley...... Bay Mineue , Alabama Eileen McDowell Stockham...... Mobil e, Alab ama Rickey Darryl Byrd ...... Birmingham, Alabama Margaret Annette Stone ...... Mobile, Alabama Mark Bruce Flake ...... • . . . .. Huntsville , Alabama Stephen Andrew Strickland ...... Birmingham , Alabama Theodore Aleck Gulas ...... Fairfi eld, Alabama Charles David Stubbs ...... Anniston , Alabama Lamar Travis Hawkins ...... Birmingham , Alabama Samuel Leon Sullivan, Jr...... /asp er, Alabam a William Chipman Honey ...... Montgomery, Alabama James Anhur Taylor, Jr...... Birmingham, Alabama Charles Gary Morrow, Jr...... Union , Mi ssissippi Evelyn Yvette Teague ...... • Birmingham , Alabama Lisa Ann NarrelI ...... Cha«anooga, Tennessee Paul Peter Telehany ...... Montgom ery, Alabama Glenn Allan Parker ...... Monrgomef'y, Alabama Bruce Andrew Pickens, Jr.. . .. New York City, New York Robert Burns Templin, Jr...... Demopolis, Alabama Thomas Eric Ponder ...... Monrgomery , Alabama William Woodham Thomley . . . . . Birmingham , Alabama Robert Ernest Rigrish ...... Atlanta, Georgia Jonathan Lee Tindle ...... Bessemer, Alabama Michael Morris Shipper ...... Birmingham, Alabama Theresa Anne Tkacik ...... Birmingham , Alabama William Hylton Starnes ...... Hunrsvill e, Alabama Mark Allen Treadwell, Ill ...... Birmingh am, Al abama Ronald Chester Sykstus ...... El P,1so, Texas John Alan Truitt ...... Birmingham, Al abama Marvin Wayne Wiggins ...... Greensboro, Alabama Ellen Thompson Turner . . ..•...... Mobile , Alabama Sidney Harper Wright, Ill ...... Dothan , Al abama Fall1990 Bar Exam Statistics of Interest Number sitting for exam ...... ••....•... . .•• ...... , . . . 3 70 Number cenified to Alabama Supreme Court ...... ••...... • . . . 260 Cenification rate ...... •• . ... •••....• .. ...•...... 70% Certification percentages: University of Alabama ...... • ...... 80% Cumberland ...... • ...... , ... 80% Alabama nonaccredired law schools ...... • . 42% The Alabama Lawyer 23 ,____. ------r---r 1 ~ .: = I : I ' = , ------,1 ,. " ' I ' -, ·: m : 1 1 ' ... I ' Lawyersin the Family Paula/. Baker n990), Beverly P. Baker (1985) , JamesK . Baker /1948/ and Hon. Oscar W. Adams, Jr. (1947} (admitree, mother,father , uncle) Sandra Rogers Segal (1990)and Andrew John Segal (1989)(admittee and husband) John R. Holliman (1990)and James A. Holliman (1969)(admi(tee and father) The Alabama Lawyer 25 Robert Kevin H,,nson(1990} and Robert W. Hanson (1970}(admlltee and fa1her} James C Pennington /1990) and Timo1hyH . Nunnally (1986}(admiltee and bro1her) BradAlmond (1990}and Cynthia LeeAlmond (1990)(co William t.eeHorn (1990)and Judge Car/ionW. Mayhall, fr. (1963} admluees} (odmltlee and unde} 26 January 1991 MargaretA. Stone(1990) and Gordon R. Batson(1981) (ndmi tice and cousin) Robert M. Alron, Ill (1990)and Robert M. Alton, Jr.(19S2) (admluee and father) JaneEmlly Crosswhire( 1990) and Mark Crosswhite (1987)/admiuee Kevin 0. Graham(1990) ,1ncl Duane A. Graham/1984) (acl and husband) miuee and brother) The Alabama Lawyer 27 Darlene Upton Eason(1990) and 0. RussellEason (1984) (admittee and husband) ChristopherDalton ScottSmith (1990}Jnd Ollie 0. Smith /1947}(admittee and father} Steve Whitehead(1990) and l.ang Floyd (1984)/admi cwe EmilySides Bonds (19901 and J .M. Sides(19561 C,,dmluee and father} and brother-in-law/ 28 January 1991 Albert D. Lipscomb, Jr./1990) and Albert D. Lipscomb (1961)(admi i tee and father) Rid)ard Leslie Jones/1990) and Hon. Richard lester Jones /1949) (.idmlttee and father) I -... ,.,..... / - Karen Chambless (1990} and Mark Chambless (1983) (ad Davis Buuerfield Whiue/sey (1990) and C.S. Whittelsey (1955) (ad miuee and husband) miLtee and Father) The Alabama Lawyer 29 Roland Cooper Shattuck11990), Kenneth Cooper / 19401and C<'Of8eH . 8. M~rhciws(1967/ (admitU!C, uncleand t;reat-,,ncleJ Cress L. Smith (1990)and w.itter Henley /1952)(admi ttee and stepfather) -- Jon BrennanHayden (1990)and WalterCharles Hayden,Ill (1987) Sandra Jones Campbell /1990) and Harvt,y 8. Campbell, /admiuec and brother) Jr. (1977)(admitlet> and husband) 30 January 1991 /eb Swan Fanmn(1990) ,,nd Hank Fannin(1965) (admi11ee and fdther) Mary Ponder Wilson (1990)and Joseph Wheeler Wilson, II (1965) (adm,uee and father) Steven T.McMcckln /1990)and Claude M. Burns,Jr. (1968/ Wlrren Carroll Matthews (1990), WI/Imm 8. Matthews, Jr. (1982), (admittce ,ind 1111c/e) William B. Matthews,Sr. (1956) and G. David lohnsron (1977)(admit tee, brother, farher and brother,in-lmv) The Alabama Lawyer /continued on pdg() .34/ 31 cle opportunities ______WORKERS' COMPENSATION TutwilerH otel, Birmingham 13-15 Cumberland Institute for CLE Credlis: 6.0 Cost: $125 BASICESTATE AND GIFT TAXATION (205) 870.2865 Olympia Resort Hotel, Park Oty, Utah American law Institute-AmericanBar PROBLEMSI N REPRESENTINGTHE 31 thursday Association CITIZEN ACCUSED Credits: 18.8 Cost: S460 Admiral Semmes, Mobile (215) 243-1600 Mobile Bar Associa1ion WORKERS'COMPENSATION I N Credits: 3.0 Cost: S30 ALABAMA (205) 433-9790 Birmingham National Business ln,titute, Inc. 14-15 Credits: 6.0 Cost: S 108 LEGAL ISSUESOF PROBLEMCOL· (715) 035-8525 LECTIONSIN ALABAMA RECENTDEVELOPMENT S IN EN· Huntsville VIRONMENTALLAW National Business lns1,tutc, Inc. Marrion, Marco Island, Florida Crodlts: 6.0 Cost: $108 Eastern Mineral law Foundation {715) 835-8525 31-february2 Credits: 8.3 (304) 293-2470 ANNUALCONVENTION M.1rriou,New Orleans 16 saturday Southern Trial Lawyers Association Crediis: 16.0 Cost: $400 14 thursday (904) 224-9403 BUSINESSTORTS ANO COMMER· CIAL LITIGATION LEGALISSUES OF PROBLEMCOL· Pheonix, Arizona LECTIONSI N ALABAMA Associationof Trial l..lwyer, or Birmingham America National Business Institute, Inc. Credits: 53 Crediis: 6.0 Cost: ~ 108 (202) 96S.3500 17151835-8525 1 friday 15 friday 20-21 REAL ESTATEFI NANCE INSTITUTEON OIL ANO GAS LAW Tutwiler Hotel, Birmingham APPELLATEPRACTIC E ANO TAXATION Cumberland Institute for Clf Birmingham VVestlnH otel, Dallas Credits: 6.0 Cost: S 140 Alabama Bar Institute ror CLE Southwestern legal Foundation (205) 870-2865 CredilS: 6.0 COsl!Sl2S Oedits: 19.8 Cost: SSOO (205) 348-6230 (214) 690.2377 INSURANCE LITIGATION 4-6 Phoenix, Arizona A ALCOHOL·RELATEDOFFENSES CURRENTJUVENIL E PROCEDURES DAMAGES Tutwiler Hotel, Birmingham Best 'Alestern,Bessemer ~n Inn, las \leg.)~ Cumberland Institute for CLE Beso;emerBar Association Defense Research Institute, Inc. Credits: 6.0 Cost: $125 Credits: 1.5 Crcdlls: 13.2 Cost: S395 (205) 870-2865 (205) 425-1606 (312) 944-0575 32 January 1991 21 thursday 8 friday LABOR AN D EMPLOYMENT LAW BANKING LAW Mobile Birming ham Nati onal Business Institute, Inc. Alabama Bar Institute for CLE Credits: 6.0 Cost: $108 Credits: 6.0 (715) 835-8525 1 friday . (205) 348-6230 ADVANCED FAMILY LAW 13-15 22 friday Birmingham Alabama Bar Institute for CLE AD M IRALTY LAW INSTITUTE MO RTGAGE FORECLOSURES Credits: 6.0 New O rleans Birmingham (205) 348-6230 Tulane Law School Alabama Bar Institute (or CLE Credits: 12.8 Credits: 6.0 (504) 8&5-5900 (205) 348-6230 INSURANCE LITIGATIO N Atlanta BASICS OF A RICO CASE Association of Trial Lawyers of 14 thursday Harben Center, Birmingham America Bi rmlngham Bar Association Credits: 5.3 ALABAMA PROBATE: BEYON D THE Credits: 3.0 (202) 965-3500 BASICS (205) 251-8006 Mobile National Business Institute, Inc. Credits: 6.0 Cost: $108 CON SUM ER CREDIT (715) 835-8525 Birmingham 2 saturday Cumberland Institute for CLE Credits: 6.0 (205) 870-2865 BUSIN ESSTORTS AN D COMMER 15-16 CIAL LITIGATION Atlanta BRIDGE TH E GAP LABOR AND EMPLOYMENT LAW Association of Trial Lawyers of Birmingham Montgomery Amer ica Alaba ma Bar Institute for CLE National Business Institute, Inc. Credits: 5.3 Credits: 12.0 Credits: 6.0 Cost: $108 (202) 965-3500 (205) 348-6230 (715) 835-8525 5 tuesday 15 friday 23-27 JURO R O BSERVATIO N FO RECLOSURE & REPOSSESSION IN Harbert Center. Birming ham Birmingham Bar Association INNOVATIVE TRIAL TACTICS ALABAMA Credits: 1.0 Park City, Utah Mobile (205) 251-8006 Association or Trial Lawyers of Nationa l Business Institute, Inc. America Credils: 6.0 Cost: $108 Credits: 14.0 (715) 835-8525 CURRENT DOM ESTIC RELATIO NS (202) 965-3500 RULES & PROCEDU RES Best Western, Bessemer Bessemer Bar Associatio n Credits: 1.5 28-march 2 6 wednesday (205) 425-1606 LENDER LIABI LITY FORECLOSU RE & REPOSSESSION IN ALABAMA PROBATE: BEYON D THE Buena Vlsui Palace, Orlando ALABAMA BASICS American Law Institute-American Bar Mon tgomery Mo ntgomery Association National Business Institute, Inc. Nationa l Business Institute, Inc. Credits: 15.3 Credits: 6.0 Cost: $108 Credits: 6.0 Cost $108 (215) 243-1600 (715) 835-8525 (715) 835-8525 The Alabama la wyer 33 (continued from page 31) David W. Long(1990) and Jamesf. Long(1979) (admluee and brother) William /-I. Brooks (1990),Ellen Brooks(1976/ and Richard S. Brooks (1947/(admirtee, sisrer ,ind foihcr) Peter A. Mclnl$h ( 1983), N. OwlHht Mctni$h I 1949/ ,,ml Ruth Eliz.,bcth MatthewTaylor Knight (1990)and /ohn David Knight /1966) Mclnisll ( 1990/ (brother, father ,111dll!imlttl'<'I (admittee and uncle) 34 J,,nvary 1991 WI/flam Woodh.im Thomley /1990), Patsy Woodham Thomley (1980) .1ndJe,ry Jackson Thomley (1974/ /admirtce, mother and father/ t.rAnMt.llit G, IJWl!ffllttw··--,.. ":." ,~·~"' .....OCIIICUl.,l'llOII' {llzabcth Braden Nash (1990),ind Hugh A. Nash (1950) '"" •i....,... .._... ~ . :T·rr~,, ...... -.. t"'V•-"""'"'..-· ·-Jil·· · ·-.-...... (admluee and father) t,,-=-...:'_:::~:.:.~••-Ut ...,.._ .. _ ..._...... Gm.-~~-· , - .. ._ ..,._,,_,,tl\t•IL•4 ___ - ,1,,• ...... - •. - ~···. - .... 1,~- - ,_._.,.,,-...-.,--·•. ..a-...... ----, .. -.,..c.=------i....__ •:.Z.."":::=-=-~~-"_...... ~,,_,_,..__...,...... _ ___•.. _ ...._..-ff•._ ...... ,,__---.. o.r, .....,_I .. ..._.,., looMI, --·· II- .... . ,..,,n _,,.,, .,..,_ "'" .. ,. ,,, , .. ,,. •·•---~.'I- •1100 ______r-~":~- ..._.,._..,_-·""______.. ":""'.":: ...... - ..":'.!:.:'-~-:...--, - ... ·--·-r .....:: -·-"·--·.. -~=--::::_ ,_--:::.=. ·------· ·- ..----·--· __ -e,_- , ..__ .._ .. - .,..,_ ...-----·------~:=--::.,~=!·-====---t=~ . 1,4Jl ··"" . :.::-..=..--=----·--':':,------·-"""'----1 ---'-- ·=-=- ...,u '·''!. ...-- ..-'-·- t,l.JI... '·"· ------..·-· ,-1 c'·c*=-----1 ·-- ""•• ,==-==-+-• ---- + c•:::.----1 • .. --•L•------•• f,11.J,l ·- ---....-- Swnlcy FitzgeraldCray (1990),Fred 0. Cray n954) and Fred D. Cray. Jr. (1988/ (admiuee, father and brother) The Alabama t..iwyer 35 ModifyingChild Custody Decisions Becauseof Indiscreet Sexual Behavior -ChangingTimes and an Elusive Standard by Randall W. Nichols I. Overview Mclendon, the moving party's burden lions are to be condemned. Mcll,nckm, The times are not just changing. They was merely to show a change in circum 455 So.2dal 86>-866, citing 1-\oodv, have changed. With increasing frequen· stances which adversely affected the wel Wood, 433 So.2d 826, 828 (Ala.Civ. App. 1976). cy, single persons are living together fare of the child. Lewis v. Doug/ass, 440 without the benefit of marriage. lnevil· So.2d 1073 (Ala.Civ.App.1983). Mclen· The court of civil appeals calls this bur ably, this number includes divorced par don placed a higher burden upon those den a "stringent standard'.'Benton v. Ben ents. See Wallerstein and Blakeslee, who would have the court change cus ton, 520 So.2d 534 (Ala.Civ.App. 1988).2 Second Chances: Men, Women and tody. A movant must now show that the Children a Decade After Divorce, pp. change in custody will "materially pro 111.The Rule applied - the rejection 227-228, (Ticknor & f ields, 1989). See mote the child's welfare:'Mclendon, 455 of a per se approach also, Wadlington,"Sexual Relations After So.2d at 865. The heart of Mclendon is In cases involving alleged sexual mis Separationor Divorce:The New Morality the desire to prevent Indiscriminate and conduct, Alabama's courts have long and the Old and New Divorce Laws;'63 frequent changes in custody. The cour1 held that it will not deny a parent custody Va.L.Rev.249 (197n. "Indiscreet sexual explained its ruling in this way: for every act of indiscretion or immoral behavior,"as discussed In the case law, ity. Gould v. Could, 55 Ala.App.379,316 ranges from visits by companions on a [This] is a rule of repose,allowing the So.2d 210(1975). The oft-statedrule is as limited basis to open cohabitation out child, \Yhose\\'elfare i.s paramount, the follows: valuablebe nefit of stability and the side of marriage. Compare Robersonv. rightt o put d&vvninto lls environment !W]hile evidenceof indiscreet conduct Roberson, 370 So.2d 1008 (Ala.C iv. App. those roots necessaryfor the child's is a factor to consider in a custody 1979)with W.,dev. Clark, 564 So.2d 982 healthy growthinto adolescence and modificationaction, custodywill not (Ala. Civ. App. 1990). This article wilI adulthood. The Doctriner equiresthat be modified where the party seeking analyze the impact of such conduct in the partysee kingmodification prove 1 0 modificationfails to establisha sub the Court's satisfaction that material stantial detrimental effecton the wel child custody modification cases.' changes affectingthe child's welfare fare of the child as a result of the since the moscrece nt decreedemon indiscreetcon duct Smith v. Smith,464 II. Standards for child custody stratecusto dy should be disturbedto So.2d 97 (Ala.Civ.App. 1984), cflfng modifications promotethe child's best interest The Roberson, supra; Accord, Benion, Su· Ex Pane Mclendon, 455 So.2d 863 positivegood broughtabo ut by the pra; Jonesv. Haraway,537 So.2d946 modification mustmore than offsetthe (Ala.Civ.App.1988); Durham v. Dur (Ala. 1984), changed the landscape in all inherentlyd isruptive effect caused by ham, 555 So.2d 1093 (Ala.Civ.App. child custody modification cases. Before uprootingthe child. Frequentdisr up- 1989). Alabama's courts have likewise re jected any per se approach in dealing with the sexual behaviorof custodial par Randall W. Nichols is with che Mobile ents. Evenprior to Mcl2ndon, courts cau firm of Burns& Mackey.He is a graduate tioned thal such behavior was "only a of Duke University and the Universityof factor' in cuslody modification deci VirginiaSchool of I.aw.He is a member sions. And even under the "change of cir of r.he American Bar Association, Ala cumstances" s1andard before Mclendon, bama StaceBar, American Trial Lawyers the movanrbasi ng his or her claim upon Association and the Mobile County Bar indiscreet sexual behavior had lo show Association. He is chairperson-elect of a "substantial detrimental effect:' Rober the Family Law Section of the state bar son, supra. It is now abundantly clear and vice-chairperson of the Domestic 1ha1evide nce of sexual misconduct is not Relations Committee of the Mobile enough, standing alone, to prove sub County Bar Association. stantial detrimental effect. Jones, 537 So.2d al 947. 36 January 1991 IV. "Substantial Detrimental In the late 1970s and early 1980, the App. 1980) based upon Its conclusion Effecl"-t he elusive standard focusof the case law was upon whether that "[T]here is no proof that such [indis 1hechildren were present while the con creet] conduct had adverselyaffected the While the burden of proof is clearly duct occurred and whether they were children:' upon a party seeking 10 modify custody, aware or the conduct. While such aware Robersonand Pattersonwere followed the evidence sufficientto meet that bur ness was not necessary for the conduct by a triology of cases in which the court den remains, 10 great extent, a mystery. to be considered a substantial detrimen of civil appeals affirmed the trial court's The author's research of Alabama deci ial effect, it was a factor to which the custody change. The three cases con sions did not reveal a single case in courts looked closely. firmed, to some extent, the rocus upon which a trial judge has been reversedfor For example, in Roberson,supra, the the children's appreciation of the alleged sustaining custodyin the custodial parent father presented evidence, albeit dis misconduct. There was also a hint of where the controlling issue was alleged puted, that the mother had engaged in other issues that courts might consider. sexual misbehavior on the part of the sexual escapades in her locked bedroom In Small v. Small, 412 So.2d 283 custodial parent. On the contrary, how while 1he minor children were "crying (Ala.Civ.App. 1982), the trial judge ever, many cases have been reversed in and beating on the locked bedroom changed custody from the mother to the in srances where the I rial judge has door:' Roberson,370 So.2d at 1009. The rather based, in part, upon testimony changed custody based upon such al trial court changed custody and the from the father's investigator that the legations. In these cases, the appellate court of civil appeals reversed: mother had engaged in indiscreet con court has often found the indiscreet be duct with a man not her husband. The havior to be an Insufficient ground for ... [Elvenassum ing th~ husband's evi case is distinguishable from Roberson modification. While some trial courts dence10 be un The Alabama Lawyer 37 The prcccdentlal value or Small is cerns for the children. The pr-ntation The mother tried to rely upon Patter somewhatclouded because an indepen (in nddltion to evidence or cohabitation) son, assenjng there WM no evidence that dent ground for alnrmance was pr-nt included testimony that the mother the children were present when she en in the trial court's In camera interview would often leave the children on even gaged in the alleged conduct. The court with the minor child. Small suggests, ings andon "'1!ekends,.The Medlin coun deli~red a strong Sldtementthat it has however, that parties concerned about cited Junkin v. Junkin, 332 So.2d 392 )1!1to apply wuh fotceto any other case: (Ala.av.App. 1976), in which the court the sexual conduct of an ex-spouse \~ observeth.it In the absenceoi any should consider asking the court to in stated as foll<1WS: l!Y~ rh,11the childrenwere pre 38 J.inua,y 1991 d a dl,ld's ll' TheAlabama Lawyer 39 BankCustomer Privacy in Alabama by Bradley R. Byrne In any deposit or loan relationship be Appli cable federal statutes tween a bank and its customer, a signlfi four federal statutes have some appli canl amount of information is generated cability In this area: the Right to Finan about the customer and kept in 1he cial Privacy Act o( 1978, 12 U.S.C. bank's files. A bank's records and infor §§3401-3422; part or the TaxReform Act mation on a depositor will show the of 1976, 26 U.S.C.§7609 ; the FairCredit sources from ,vhom the depositor re ReportingAct, 15 U.S.C. §§ 1681-16811; ceives money, how much he or she re and the ElectronicFund s TransferAct, 15 ceives, when It is received, and to whom U.S.C.§§1693-1693r, and Its Implemen and when the depositor paysmoney and ting regulation, Federal ReserveRegul a In what amounts. loan filescustomarily tion E, 12 C.F.R. Part 205. Eachof these contain financial statements showing measures contains very specific provi assets and liabilities, credit histories, and, sions which should be followedcarefully In many commercial loans, a host of data and which are explained in general terms about the borrower's organization and below. operations. A. The Right to Financial Privncy Not surprisingly, most bank customers, Act-Th is statute prohibits a bank from whether businessesor Individuals, reg.1rd releasing informationor documents to a such information as private and con federal department or agency, unless fidential. They do not intend for their specified procedures and requirements bank to disclose documents and informa are followed, 12 U.S.C.§3405, including tion to competitors, other banks and agency notice 10the customer of the re creditors, those in positions adverse to quest, and certification by the depart the customer,or, indeed, to a1¥)1leIn the ment or agency to the bank that it is In public at large. Generally, courts have tion in Alabama law,either constitutional compliance with the Act. 12 U.S.C. acknowledged a customer's expectation or siatutory. Further complica1ing this §3403. Absenl compliance with these of privacy and banks' quallned duty of issue is authority fromsome jurisdictions procedures and requirements, the bank confidentiality. R. Huhs, "ToDisclose or which requiresdisclosure of such infor should not release documents pursuant Not to DiscloseCust0mer Records," I08 mation by banks under certain situations. to a federal agency's request. The Act is Banking LJ. 30 (1991). See id. a1 41-50. limited to documents and Information re Although various federal statutes pro This anicle eJ 40 /anua,y 1991 guarantyor die like. 12U.S.C. §3403 . The (1) Where ii is necessary for com These constitu1ionaland sratutory provi Act is riddled wl1h01her exceptions and pleting 1ransfers, or sions have thesalutary effect of clarifying limita1ions, 12 U.S.C. §3413, which (2) In order to verify the C>(istence a bank's responsibilitiesand duties with should be closely revi~. and condi1lonof your account for respect 10 cus1omerinfonnation. 8. Tax Refonn Act of 1976-The Right a third party, such as a credit Unfortuna1.ely, Alabama has no single to F1nanclalPrivacy Ac, does no1 re bureau or merchant, or siatute which expressly deals with the s1ric1disclosure of records and info,. t3) In order to comply with g~m privacyof bank customer records or in mation 10 the Internal RevenueService. men1 agency or court orders, or formation.Nor ha11e1he Alabama courts 12 U.S.C. §3413(c).The Tax ReformAct (4) If you give us your written pet· addressed the Issue of lhe extent of the of 1976con 1ains a proYisionestablishing mission. privacy rights of bank customers. There requiremen1s and procedures for is 12 C.f.R. Part 205, App. A at §A(7).Use are severalsta tu1es which speak, at least suance of o summons 10 a 1hirdparty at of such model forms protects the bank in part, to the issue, and 1IVOcases which 1he insllgatlon of an 1n1ernal Revenue of only from liability under the Electronic suggest tha1A labama courts are inclined ficer. 26 U.S.C.§ 7609. Like 1he Right lo Funds Transfer Acl, 15 U.S.C. §1693 10g ive broad recognition to the privacy Flnancial Privacy /lci, this slalule has a m(d)(2),a nd does not necessarilyensure inr.erestsof bank customers. requirement of agency notice 101he cus prolection from llabilily under other The most dlrec,ly applicable Alabama tomer of the requesl, and a number of laws. statute is found at Section 5-SA-43of the exceplions and limitations. 11 is no1 Alabama Code. That slatute is headed limi1ed10 individuals or small partner The appli cable Alabama law "Disclosure of Customer Financial ships, however. 26 U.S.C. §7701 (a)(JJ. Many of the legal dispu1esin this area Records"and reads as follows: C. Fair Credi! Reporting Acl-This occur outside of the federal statutes de A bank shall disclose financial sta1U1egenerally prohiblis improper dis scribed abow. Indeed, much of the law records of ilScustomers pursuant 10a closure and use of Information main on bank customer privacy consists ol lawful subpoena, summons, warrant tained b-f a credit-reporting agency. 15 judicial decisions under stale common or court order Issued b-f or at the re U.S.C.§§1681b-1681o . Bank customer law theories holding banks liable for dis ques1 of any state agency, political documems and lnforma1ionare generally closingbank customer records and inlor subdivision, instrumentality,or officer excluded from the ACIbecause they con matlon. See annot., 81 A.L.R. 41h 377 or employee 1hereof and served upon tain "lnformmionsole ly as to transactions (1990).These 1heorles Include breach of the bank. No bank di rector. officer. or experiences between 1he consumer a contrae1ualduty of confidentiality, in employee or agenl thereof shalI be and 1he person making the report." 15 vasion of privacy,defamatio n, breach of held civilly or criminally responsible U.S.C.§ 1681a(d)(A).On the other hand, trusl, interferencewith businessrelat ions, for disclosure of financial records pur informallon which a bank obtains out· common-law negligence, and the tort of suan110 a subpoena, summons, war side of its own 1rnnsaC1ionsor C>( ou1rage. Id. ranl or court order which on its (ac, perlenceswi1h lhe consume~particularly Some states, b-f cons1itu1ionor s1atu1e, appears to ha,-e been issued upon informadon from other lenders or from specificallyenumerate 1hecircumstances lawful au1hority. a aedi1-rcponingagency, does fall within under which such recordsor information Ala. Code §5-SA--430981 repl. \1)1.). the N::t's restrie1ions.Such information can be disclosed wi1hou1 incurring Accordingto t.he comment followingthis should be disclosed only under the cir liability.and when a bank will be held stalute, ii was enae1ed for the flrs1time cumsiances and the purposes oudined liable for disclosure. D. Nicewander, "Fl· in Alabama In 1980 as part of the new in the Ac1. nancial Record Privacy-What Are and Banking Code. D. The Electronic Funds Transfer Act Whal Should Be the Rights of the Cus Like 1heTax ReformIV:t of 1976, n t1e and Regulation E-This sra1u1eand reg tomer of a DepositoryInstitution." 1 6 51. 40 of 1he Alabama Code, on Revenue ula1lon presume thai some information Mary's I.aw Jourml 601, 621-23 (1985). and Taxation,h as a specific provision for concemi11gcus tomer checking accounts will be disclosed 10 1hlrdpa r1ies in the ordinary course of business in a bank's handling of elec1roniclunds transfers.15 U.S.C.§1693 (a){9); 12 C.F.R. §205.7(3)(9). The circumsiancesunder which such in formalion will be divulged must be dis Bradley R. Byrne is a graduate of Duke closed to the cus1omer.Id.While neither Universityand the Universityof Alabama the sra1uenor the regulation defines uor Schoolof 1.1,.iHe is a pannerin the Mo dinary course ol buinesst AppendixA to bile firm of Miller, Hamilton, Snider & the regula1ion provides lhe lollowing Odom. modal disclosure clause: (a) Account inlormation disclosure- We will disclose lnforma1ionto third parties abou1 your accounl or 1he transfersyou make: The Alabama Lawyer 41 third-partysummons by the Staie Depart employees of the bank nor who are records ordinarily should be produced ment or Rl."1!nue.Ala. Code §40.2-11(8) rela1ed10 or en&1gedin business with only pursuant 10a court order. Forbank (1985repl . wl.). The Alabama provision an officer,director or employee shall counsel, Section 5-SA-43 provides com 1s much less stnct and, indeed, allows not be subJectto examina1ionby such fon 1ha1the bank will not be held liable such a summons on a broad basis. A a stockholder or by his agent or a1- for disclosingcus1omer record, pursuant critical exception exists for bank cus tomey In 1he absence of an order or 10a faciallyvalid court order, subpoena, tomer dcposi1· records, however: "pro a court of compe1c,11jurisdiction, after summons or warran1. vided, that no orncer of any ba,,k or inspection of such books and records banking lnsli1u1ion shall be required 10 o( account and minu1cs in camera, Only two or 1hese statu1es, however, disclose 10 1he department or any o( its that such examination Is necessary; address requests for bank cusiomer rec agenis or clerks the deposits of its cus and said order shall be subject to ords where process of court is not used. by tomers except upon order o( court." Id. review In 1he Supreme Court of Ala Such requests, non-insider share This provision, which originated in 1935, bama on wri1of mandamus.Provided , holders of banks, or by the slate Depar1- echoesSection 5-SA-43.Nl!\'l!rtheless , in further,that ii a corporationI s engaged men1 of Revenue as 10 deposiLS,s hould the only reported decision under 1h1s in lhe business of b.Jnking. its said be refused. Wha1about an infonnatlonre provision, 1he court or civil appeals has books and records or account and ques1 by a 1hird party, such as another held 1hat it does not preclude the Del)ilrt· minu1es shall be deemed no1 to in financial lnstilution or an employer! menr from issuing writs or garnishment clude any repor1s of examination by Whal about requests under Rules 33 nnd for bank cusron,ers' accounts. Ex ~r1e stare or federal supervisory agencies 34 of !he Alabama Rules of Civil Pro Alabam.1Nat'/ Bankof Montgomery,375 nor any actions taken nor reports cedure! The comment to Section5-SA-43 So.2d 263 (Ala.Civ.App, 1979). made by 1he corpora1lon 10 bank plainly stales, "Cuslomer records should And lhe Alabama Business Corpora supervisory authorl1ies pursuant be disclosed only upon subpoena or tion Act. Ala. Code §§10.2A-1et seq rhereto. court orde(.' Althoughthe next sentence (1987repl. wl .), specificallyprohlbib the Ala.. Codt' §10.2A·79 11987 repl. vol.) in 1he commenl states that 1he section production or bank customer records 10 Once again, a coun order is 1equired, but "g LL.M. ILM LLM in in in ESTAT E PLA NNING REAL PROPER'IY TAXATION Study wilh man y of the Program includes teasing, Corporate. Foreign and Estate nation's authorities in this construction. wc:ition. finan concentrations availab le in a nariorolly-recogniicu one-year cing. zoning :ind planning. in one ·year program, full or p:ut · program. a one-year program. full or time. pan time. Write: Writ e or Call: Write or Call: Gradu ate Pr<~ ram in Graduat e Program In Gradu ate Program In F.slatc Plannini: Real Property Develop me nt Taxation University of Miami. University of Miami University of Miami Schoo l of Law School o f l..3w School of I.aw P.O. Box 248087 P.O. Box 248087 P.O. Box 248087 Cnrul Gahles. Florida 33124 Coral Gables. FL 33 124 0:>ral 0-Jbles, FL 33 124 Telephone (305) 284-3587 Telephone (305) 284-3587 42 January 1991 ported decisions in Alabama which indi tory and decisional authority indicate a Pointers for counse l cate the judicial propensityon this issue. strong public policy favoring customer Nearly all attorneys confront this issue In U.S.v. First Nat'/ Bank of Mobile, 67 confidentiality. at some point in their practice, either as F.Supp 616 (S.D. Ala. 1946), modified, Of greater difficulty is the authority counsel for a bank, a bank customer, or 160 F.2d532 (5th Cir. 1947) the court ad from other jurisdictions which seem to a third party seeking customer records or dressed a bank's refusal to produce cus impose a duly of disclosure to third par information from a bank. How should al· tomer records to the Internal Revenue ties, even in the absence or a court order. torneys in Alabama proceed in light of Service under an Internal Revenue Code The Alabama Supreme Court has not the authority cited above? provision antedating the TaxReform Act directly addressed this issue but has held Firs~ if acting as bank counsel, caution of 1976. As one of the grounds for its re that the creditor-debtor relationship be is the obvious advice. Third-party re fusal, the bank cited its "fiduciary rela tween a bank and its loan customer does quests should be honored only if made tionship" with its customers, especially not create a general duty of disclosure under a court order or valid administra as the request covered records for cus absent customer reliance on the bank for tive process, with written permission tomers other than the taxpayer involved financial advice or "other special circum from the customer, or pursuant to one of in that case. 67 F.Supp at &19.The coun stances:· Bank of Red Bay v. King, 482 the federal statutes discussed in this required the production because it So.2d 274,285 (Ala. 1985). Hence, in an anic le. A bank should divulge inforn1a found, under this pre-1976 statute, no arm's length transaction, a bank is not tion on its own initiative only under ex violationof any confidential relationship, obligated to disclose facts regarding one treme circumstances, such as when there but in so doing made the followingstate customer to another customer. Lee v. is reason to suspect fraudulent or crimi ment: United Fd.Sav. & LoanAss'n, 46& So.2d nal conduct, especially a check-kiting scheme involving two or more banks, No one questions its !the bank's) right 131(Ala. 1985).But seeAssociates Fi nan where sharing of limited infom1ation is to protect its fiduciary relationship cial Serv.Co ., Inc. v. First Nat'/, Bank of with its customers, which in sound Mobile, 292 Ala. 237, 292 So.2d 112 critical, or when the facts may impose a banking practice, as a matter of com (1974) (under extraordinary circum duty on a bank to disclose information to a third party because that third party mon knowledge, is done everywhere. stances a bank may be required to dis close customer information to third-party is relying on 1he bank for advice. Even &7 F.Supp at &24 (bracketed material guarantors). then, however,the information divulged added). More recently, in Jacksonville State Bank v. Barnwell,481 So.2d 6&3 (Ala. 1985), Justice Houston, writing for a unanimous supreme court, affirmed a All State Packaging Co., Inc. general verdict against a bank for, inter Opolil The Alabama Lawyer 43 should be carefully considered and information and sustain the objection or -Of informallonpursuant to the Fair limited to that which is necessary. enter an order requiring the production Credit ReportingAct and as pan of the Whether infonna1ion is divulged pur usuallywith appropriate llmltmlonsand check-clearing and electronic /und suant to court order, admlnis1ra1lvepro protections.Coun$el for all partiesshou ld transferprocess; cess, or on the bank's own initiative,the worl LIFE INSURANCE UNDERWRITING CONSULTING The Rich,ml l. T,1vlor who was reported in 1he _ T...... ,•\Jftde 44 January I 99 / MississippiValley Title InsuranceCompany P.O.Drawer 2428 • Jackson , Mississippi 39205 601-969-0222 The Alabama Lawyer 45 Medicareasa SecondaryPayer Where Services areReimbursable UnderAutomobile Medical, No-fault orAny Liability Insurance by Gray Parker Everyday, cases are sented by attorneys certain situations where these programs plemenl 1he ,tatules. This rule, presently without protectlns the subrogation in do not pay for services in full. codifiedat 42 C.F.R.§405.322-325 098n terest of the Medicare program.Many at Currently,one of the areas addressed includes a description of the various torneys are not iJWarethat Medicare has by recent legislation making Medicare types of insurance which are 10 be a subrogationrighL Others are under the secondary payer is where services are deemed pnmary, and the procedures in misconception that II they are not reimbursableunder automobile medical, wived for recovering its 0>-erpayment notified by Medicare of its subrogation n<>faultor any liability insurance. when a situation 1rwolvinga primary in interest, then Medicare's rights are surer exists. forfeited.This is not true.As statedbelow, It is important10 note that •automobile Medicare'sright of subrogationis clearly Medicare's right of subrogation medical or no-faultinsurance" has been defined by federal law. The establishment of Medicare as a defined as " ... automobile insurance Until 1980, when Congress mandated secondary payerand authorization of the (including self-insuredplans) tha l paysfor that Medicare pay only secondary bene Medicare p rogram to seek reimburse all or p,irto f the medical expenses for in fits In certain situations, the program had ment of Its overpayment has its basis in juries sustained in 1he use, occupancy or generally assL1med a position of primary §1862(b) of the Social Security Act [42 operation of on automobile,regardless of payer responslblllty for its beneficiaries. U.S.C.§1395y l as amended by §953 of who may have been r1!$ponsiblefor caus Since that time there have been other the Omnibus Budget ReconciliationAct ing the accident. (ThisIns urance is some changes in the Medicare lawwhich have of 1980 (Pub. L. 96-499, 94 Stat. 2647 times called 'medical payments cover added new circumstances under which 0980)J.Prior to the adoption of §953,this age', 'personal injury pro1ection; or Medicare is a secondary payer. legislation had originally focused on 'medical expense c0>-erage'.)"42 C.f.R. MedicareSecondary Payer is essential Medicare as a secondary payer when an [405.322(b)(198n) . ly the s.lme concept known in the pri other insurance policy,plan or law,such vate insurance industryas "Coordination as Workers' Compens.ltion coverage, "Liabilityinsurance" has been defined of Benefits"and refers10 those situations could also make p;iyment. With the as "insurance (including a self.insured where Medicare does not have primary adoption of §953, this secondary payer plan) that providespayment based upon responsibilityfor paying the medical ex status was expanded to specifically in legal liability for injuries or Illnesses or penses of a Mt."Clicarebeneficiary. The clude "an automobile or liability insur damages to prorlerty. It includes, but is main purp0se of this r>resentationis to ance policy or plan (Including a self. not limited 10, automobile liability,unin clarify those circumstances under which insured plan) or under no-fault in sured motorist, homeowner's liability, Medicare is the secondary payer. surance:· malpractice, product liability, and gen Medicare Secondary Payer is not a The specific legislative intent of the eral casualty insurance. This exclusion completely new concept, since some Omnibus Budget Reconciliation Act of does not apply where the homeownerre other programs have been prlmary to 1980 was to establish Medicare as a ceives payment under his or her own Medicare since its inception.SelVices for secondary p,,yer In instances where an homeowner's Insurance policy since which benefits are payable under automobile medical, nc>fault,liability in such a payment does not constitute a Workers'Compcns.ltion plans, the Fed surance plan or policywas available, and liability insurance payment." eral Black Lung Program or authorized that Medicare, once It had made a pay This regulation 42 C.f.R. (405.322(b) by the 'Wterans Administration h.M? ment, would seek reimbursement. (1987JJalso established that Medicare always been excluded from payment In April 1983, the Secretary for the would be secondary to automobile under Medicare. The Medicare program. Department of liealth and Human Ser medical or no-faultin surance and liabili however,can pay secondary benefits in vices issued a Onal rule designed to im- ty insurance "even though State law or 46 January 1991 lhe Insurance policy or plan slates 1ha1 Shield of Alabama or other such entit ies, and suffering), the Medicare program its benefits are secondary 10 Med icare's w ho as a private con1ractual Insurer per will permit a reduction from the amou nt or 01herwise excludes or li mits its pay mits the paymen1of a fee to the attorney due for a proportio nate share of the costs ments if the inju red party is also entitled for recovering its funds, Medicare does of procuring 1he payment. This computa to M edi care Benefil s." 42 C.F.R. not permil a d irect payment of a fee for tion, set forth at 42 C.F.R. §405.324! b), §405.323( b) (1987). recovery of its overpayments. As noted will allow for costs 1he beneficiary has As no1ed above, the original focus of earliet Medicare has its entitlement to re incurred (including the fee arrangemenl 1his legislation had been to es1ablish covery of ils overpayments expressly between the beneficiary and counsel) in Medicare as secondary when a workers' stated in federal law. This legisla1ion has order to obtain the paymenl. It may be compensation Jaw or plan wasava i Iab le; provided for several melhods of collect necessary for counsel 10 subm il a copy that original focus has nol changed. The ing its reimbursement, including di rect of the settlemen1 sheet, listing the pro codi fica1ion of this legislation can be Ii tigation against any entiiy responsible curemen1 cos1s at li me of settlement. found al 42 CF.R. §4053 16-321 {1987). for paymen1, and offset against any Med icare will no1s hare in the procure Instructive cases are Colonial PennI ns. monies owed the beneficiary by the fed ment costs involved in collecti ng auto Co. v. Heckler, 721 F.2d 431 (3rd Cir. eral government, such as Social Security mobile medical benefi ts. Therefore, 1983)a nd Abramsv. Heckler,582 F.Supp. benefits. 42 C.F.R. §401.607(d){1). whe n no1ifying Medica re of the settle 1155(S .D. N.Y. 1984). These cases recog As set forth by existing regula1ions, if men1 received, benefits received through nized the Congressional inten t to estab Medicare is bi lied for goods or services automob ile medical payments should be lish Med icare as a residual ra1her than that can reasonably be expecled 10 be separated from those benefits received primary payer, and recognized !hat any covered by an automobi le medical or no through liabi l ii)' payments. stale Jaw wh ich would inlerfere wi tl1 this fault insurance policy or plan or under intent would be superseded. a workers' compensation law or plan of Statute of lim itations In addition to judic ial decisio ns eslab the United States or a slate, then any re Wll h regard to an appl icable s1atute of llshing the federal right of subrogation, quesl for Medica re payments wi ll be ll milatio ns, ii would be beneficial to re Congress, in enacting the Deficit Reduc denied. 42 C.F.R. §405.316(a);4 05322(c) view 28 U.S. §2415(a) and §2416 wh ich tion Act of 1984 [Pub. L. 98-369, 98 Stat. [1987]. If, however, an auto mobile states that " . •• every actio n for money 1095 {1984)1 specifically established the medica l or no-fauh insurance plan, damages brought by the United Stateso r right of the United States to bring direc1 policy or coverage, or a wor kers' com an office r or agency thereof wh ich is Ji1iga1iveaction against any entity respon pensation pla n policy or coverage has founded upon any con lract express or sible for primary payment and clarified made paymenl (or can reasonably be ex impl ied in law or fact, shall be barred 1he abil ity of the Uniled Slates to be pected to make paymenl) for services for unless the compla int is filed wi thin six subrogated to "any right of an indiv idual w hich Med icare has made paymeni as years after 1he righl of action ac or any 0 1her enlily 10 payment:' well, 1he Med icare program will seek crues ... :' Ano ther modification 10 the enforce reimbursement up to 1heamounl paid by Thus, lhe Medicare program will have ment abili 1ies of lhe Uniled Slates in re Medicare for thal good or service. 42 six years from the date it determines an gard to Med icare as a secondary payer C.F.R. §405316(a), (b); 405323(c) [1987]. overpaymenl has been made to enforce came about w ith the passageo f the Om There are situations, however, whe re reimbursement of lhe overpayment. nibus Budget Reconci liation Act of 1986 lhe Med icare program wi ll accept less [Pub. L. 99-509, 100 Slat. 1874 (1986)]. than its actual payment as payment in Compromise or waiver This act amended 1862(b) of the Social full . Should the M edicare program'srei m Many times, an attorney or agent for Security Acl 10 create a private cause of bursemenl be made from mo nies re 1he Medicare beneficiary will request aclion for damages "in an amount dou ceived as a liability insurance payment tha1Med icare agree to a comprom ise or ble lhe amou nl otherw ise provided" (regardless of its designation i.e., pain total waiver of its subrogation lien in a a,gainsl any "Wor kers Compensation law or plan, automobile or liabilily insurance policy or plan or nCHault insurance plan, group health plan, or large group heallh plan" which has been deemed pri mary Gray Parker,Jr., is employed by Blue and "fails to provide for primary payment Crossand Blue Shield of Alabama as the /or appropriate reimbursemenO ... 42 uni! manager of Medicare Secondary u.s.c. §1395y(b)(5) (1987]. Payor.He hasworked with Blue Crossfor six years.Gray holds a masrer's of busi Attorney's fee ness administra1ionfrom Samford Uni An oflen-asked ques1ion In regard to versity and bachelor's of sciencedegree the Medicare program's primary right of in health care management from Auburn overpayment reimbursement has been University. w hether beneficiary co unsel is entitled 10 collect a fee from 1he amou nt to be reimbursed. Unlike Blue Cross and Blue The Alabama lawyer 47 panicular case. A compromise or waiv beneficiary; if any payment Is made by (Health Insurance Claim number), the er 1sonly granted in cases of hardship. Medicare for an item or seiv1ce rendered date of the accident and any known p~ 11repayment of Medic.ire'slien would in a beneficiary, a.nd a payment for that viders of service. terfere with the benerlciary's ability to samellem or service is also made by an Because Medicare's right or subroga pay for ordinary living expenses, there is Insurance plan, policy or coverage that tion is set out in federal law, every state a chance that a compromise or waiver Is primary to Medicare, the Medicare has the right of subrogation. Please in may be granted. payment must be reimbursed. 42 C.F.R. form Medicare in which state the acci The appropriate hardship forms must §405.316(b); 405.322(c), (di; 405.323; dent or loss occurred. Medicare will be completed by the benellclary and his 405.324(a)[1987). Specifically, it is noted contact the Medicare intermediaries in or her auomey and returned to Medicare. in relation to situations lrr.'Olvingauto the appropriate state. The intermediary The forms and request then will be for mobile medical or no-fault insurance or for the state that has paid out the most warded to Medicare's regional office for liabillty insurance that "failure to send in benefltSas a result of the accident or a preliminary decision, and then on to notice does not relieve the beneficiaryof loss will be the lead carrier. All further Medicare's headquarters In Baltimore, tha obligation to refund the conditional action will be handled from this lead Maryland, for the final decision on a payment." 42 C.F.R. §405.32J(cl(5l. office. compromise or waiver. 40S.324(al(S)[1987) . By notifying Medicare at the onset o( The entire decision process can take All attomeys need to inquire of all yoor case,there will be ample lime to up to six months to complete. For this potential clients if they are a Medicare gather all o( the information needed by reason, attorneys wishing a compromise beneficiary.(So me Medicare beneficiar the lime you are able to negotiate your or waiver need to notify Medicare as ies nre under age 65 if entitled to Medi case. soon as possible so that action will not care because of a disability.) If your cli Please direct all correspondence to: be delayed more than Is necessary. ent Is on Medicare, please notify the Medicare Secondary Payer Unit department listed below as soonas possi P. O. Box 12647 Notifi cation ble to inform Medicare or )'OVrrepresen Birmingham, Alabama 35202 Under existing law, there is no express tation. Please include with your corre requirement for notice of Medicare's in spondence the name of the beneficiary. or call Medicare's Customer Service volvement to be communicated to the the beneficiary's Medicare number Department at 1205) 988-2244. • WE SAVE YOUR • TIME ... , ot1ce ~ ..,,ar nell Now legal research ussi$tance / ourn<1/ of Legal Economi cs publi shed at UNA i, available when you need it. TheJournal of LegalEconomics, a national publica L E G A L without tbe necc,sity of tion for economics and legal professions,Is being pul> adding a full-timeassociate or Research hshed at the University of North Alabama by the clerk. AmericanAcademy of Economicand FinancialExperts. The AAEFEIs a newly-formed organlia tlon of aca With access 10 the Stme Law Library and Wcstlaw. we demic, financial and professional economi$ts whose provide fast and efficient service. For deadline work. we purpose is to further the knowledge and understanding cnn deliver informntlonto you via common currier, o( economics as it applies to legal pro«edlngs and to Fcdeml Express.or FAX. estiblish communications between the economics and legal professions. Farnell legal Resc:ttChex3ltlines the issue. 48 January 1991 Notice Officeofthe Chief Justice, November 26,1990 AdmininstrativeOrder The administrative order of Octobe r 17, 1990, relating to "atto rney calendar confl ict resolutio n" is amended to read as follows : Whereas, by Order of the Supreme Court dated June 1 2, 1990, time standards relating to delay reduction s were adopted and became effective Octobe r 1, 1990, and Whereas, lawyers e,, gaged in a trial practice from time to time may be scheduled to appear in more than one court at the same time and on occasion after due diligence may be unable to resolve such a scheduli ng conflict, and Whereas, the impact of time standards may significantly increase the number of scheduling conflicl5 and create a need for a procedure for resolving them, Now, therefore, it is here ordered that an "Attorney Calendar Conflict Resolution Order" be, and it hereby is, adopted, to read in accordance with the appendix to this administrative order, and ii is ordered that that order ap pearing in the appendix shall be incorporated as a part of this administrative order. It is further ordered that the Hon. Richard L. Jones be, and he hereby is, appointed to resolve the con flicts dial are not resolved by consultation of the judges and attorneys involved in the con flicting cases. It is further ordered that this administrative order shall be effective Oc tober 22, 1990, and that it thereafter be evaluated based upon actual experience. At the expiration of six (6) months from its effective date, this order may be modified in accordance with the results of the evaluation. Done by Admi nistrative Order of the Chief Justice of the Alabama Supreme Court. -Sonny Hornsby, Chief Justice Appendix AttorneyCalendar Conflict Resolution Order Whenever an attorney receives notice of the se11ing of any case for trial or of any motion for a hearing, the attorney shall immediately review his or her calendar and determ ine if the sell ing causes a scheduli ng conflict . When an attorney is scheduled to appear in more than one court at the same time, or w ithin such a short period 1ha1 the attorney cannot reasonably be expected 10 appear in both courl5, he or she shall, upon receipt of the notice producing the conflict , immediately attempt to make adequate arrangemenl5 for representation of each client's in terestby substitution of counsel or shall otherwise attempt to 1esolvet he conflict by consulting w ith counsel representing the adverse parties in the conflicting cases. If the attorney is unable to resolve tl,e conflict by the means suggested in the last paragraph, he or she shall prompt ly attempt to resolve the conflict by fil ing an appropriate motion wit h one or more of the courl5 invo lved. If the attorney is unsuccessful in resolving the conflict by motion, he or she shall forthwit h consult the judges in volved in the con flicting cases, notifying them of the efforts he or she has made to resolve the conflict and of the fact that those efforts have been unsuccessful. It shall be the duty of the judges involved to resolve the confl ict by consultation and to notify the attorney of the resolution. In the event the judges involved cannot resolve the conflict, then either attorney may request that the conflict be resolved by a judge or a panel of judges appoin ted by the chief justice. No resolution of a confl ict shall result ln a contin uance unless a continuance is expressly ordered by a trial ju dge. Once there has been entered an order establishing a prio rity among confl icting cases, that order wi ll not relieve an attorney from appearing in secondary proceedings in the event the priority case is settled, dismissed,or rescheduled for wha tever purpose. 49 LegislativeWrap-up by Robert L. Mccurle y, Jr. 'A~ now have 29 l~rs In rhe Legislatureor about 21 Demetrius Newlon, Birmingham percenr of rhe 140 members. Phil Poole, Moundville In the Senate 1here are 17 lawyers or almost SO perceni. Michael Box, Mobile Of the elghr new senators, six are lawyers. This Is an increase of (our law)-ers from lhe la~, Legislature.The Th,s increase lil\V)>ersin the l.cgislawre following laW)-ersare now st'IVingIn the legislature: m .-rses a downward trend that began in 1971when the Senate was compo;ed or 40 perce111lawyers and 1he House co111ained James P, Smith, Huntsville 28 percenr attorneys. Overall, the membership or the Don Hale, Cullman Legisla1urechanged very little. The Senate has eight new Bob Wilson, Jr., Jasper legislators (77 percent returns) while the Mouse has 23 Jack FIO')'d,Gadsden new lawmakers(78 percent re1urns). This ls in contrast to Doug Ghee, Jacksonville 97 percent of 1heUniled Stales Congress which returned. Frank Ellis,Colu mbiana The Legislature convened lor an organization~! session on J.inual)'8, 1991. Unlikethe exec:vti-.ebranch which was John Aman, Birmingham sworn in on Janual)' 14, 1991, legislators took office in Mac Paiwns, Hueytown November as soon as the electlon results were made Earl Hilliard, Birmingham official. Ryan deGraffenried,Tuscaloosa The 1990 RegularSessio n or tho legislature will begin Pat Lindsey,Butler April 16, 1991, and may continue until July 29, 1991.• Hank Sanders, Selma Charles Langford,Montgomery Ted Llule, Auburn 'Nendell Mi1cheli, Luverne Michael Figures, Mobile Ste\1! Windom, Theodore David Barnes. Birmingham Mark Gaines, Bim1ingham In the House ol Representath-es.there are only II lawyers110 percent). Twoexcellent lawyer/legislators,Bill Slaughter and Beth Mariella-Lyons,chose not to run ror Robert L McCurley, Jt., is the re-eleclion. However, lour addirional lawyerswere elected: d,rector of the Alabama1.8w Marcel Black of Tuscumbia, Hugh Holladay of Pell Oty, lnsutute a1the UnM11S1tyal and, from Birmingham, David Barnes and Mark Gaines. Alabama He receMld htS Reruming to the House ol Represent,'llivesare; unde,groduateand tuw degrees from the University. Morris Brooks, Huntsville Tom Drake, Cullman Jim Campbell, Annisron Bill Fuller, LaFayene so January 1991 Recent Decisions by John M. Milling, Jr., and David B. Byrne, Jr. and Tittle appealed. The supreme third panies possess the same motive, Recent Decisions of the court reversed. and, thus, the logic that supports the Supreme Court of Ala.bama The supreme court acknowledged application of the rule 10 parties is not that h has held that when a par1y to present. Civil procedure . • . an action has given clear answers to disinterested third parti es may unambiguous questions that negate Insurance ... not be bound by Robinson v. the existence o( any genuine issue of UM benefits in death action Hank Roberts, Inc. fact, that parry cannot later create an not distributed under §6-5-410 Tittle v. Alabama Power Co., 24 issue of fact by submiuing an affidavit Sprouse v. Hawk, 24 ABR 3685 ABR3884 (September 7, 1990). Ala that directly contradicts, without ex (August 31, 1990). Mrs. Hawk was bama Powercontracted w ith Combus planation, that earlier testimony.The killed in an automobile accident with tion Engineering,Inc. for maintenance supreme court, however, noted that an uninsured motorist. She died work at one of its steam plants. Tittle, Nichols was not a party and that, to testate, leaving alI of her property to an iron worker, performed main date, it has applied the aforemen her husband. She was also survi,,ed by tenance work for Combustion and tioned rule only to parties recogniz two sons. State Farm issued four was injured when he slipped on some ing the motivarion that they might policies, naming Mr. and Mrs. Hawk, insulation dust. He sued Alabama have to fabricate a sham affidavit.T he and one policy, naming one of the Power, alleging that it negligently supreme court stated there is no sons, as the insured. Ead1 policy pro failed 10 make the premises safe. reason to assume that disinterested vided for UM benefits and contained Alabama Power filed a motion (or summary judgment, stating that it was merely the premises owner and, thete (ore, under no duty 10 make the premises safe. Tittleand his foreman, Nichols, filed affidavits in opposition to the motion for summary judgment. John M. Milling, David B. Byrne, Jr., Alabama Power r.Jed a motion to Jr., is a member o( is a graduate of 1he strike thoseaffidavits, argui ng that they the firm of Hill, University of Ala contradicted earlier deposition testi Hill, Carter, Fran bama, where he co, Cole & Black in mony and could not be used to create received bo1h his Montgomery. He undergraduate and a genuine issue of material fact under is a graduate of Spring Hill Coll ege law degrees. He is' a member of the authority o( Robinson v. Hank and the Universityof AlabamaSchool Montgomery firm of Robison & Belser Roberr.s,In c.,, 514 So.2d 958 (Ala. of Law. Milling coversthe civil portion and coversthe criminal por1ionof the 1987). The trial court entered sum of the decisions. decisions. mary judgment (or Alabama Power, The Alabama Lawyer 51 a payment provision which s1ated, ··we formance of his professional duties. absolve it of a duty to exercise reason will pay any amount due: (1) 10 the i~ Despite this fact, the supreme coun ac able care when it undenakes 10 pro sured;.. .(3) to ihe suiviving spouse .... " knowledged that the "honest mistake" mulgate standards for the "needs of the State Farmpa id Mr. Hawk the combined rule has been followed for } 52 /anuary 1991 since ii permits an employer 10 request Some jurisdictions have upheld proba· the statement 'you can help yourseWin a reviewof a claim after adjudication, but tion revocationsbased on hearsaywhere the manner and in the context in which does not provide the same right 10 the the hearsayevidence is demonstrably re- it was u5ed here, amounted to an implied employee. The trial court denied Atkins' 1i able or exhibits indicia of reliability; promise that appellant would receive motion, and the court of civiI appeals af. however, Alabama courts have con lighter punishment or no punishment at firmed. On certiorari, the supreme court sistently refused to sustain a revocation all if he cooperated and made a state· agreed with the lower courts. based solely on hearsay evidence. nlen1:' The supreme court acknowledged that "While hearsay evidence may be admit· Judge Patterson, writing for the court, §25-S-57(a)(4lbtreats e mployersan d em ted in probation revocation hearings in set out the legal yardstick as follows: ployees differently in that ii allows the the discretion of the trial cour1, hearsay employer lo reopen a case when the evidence cannot be the sole basis for re "The true test of voluntariness of court has previouslyro und the employee voking probation:' Expa rte Belcher,556 extra-judicial confessions is whether, 10 be permanently and totally disabled. So.2d 366 (Ala. 1989);Mitchell v. Stale, under all the surrounding circum The supreme court noted that one of the 462 So.2d 740 (Ala.Crim.App. 1984). stances, they have been induced by a principle objectives of the act Is the In this case, the rwo laboratory reporls threat or a promise, express or im rehabilitation of permanently totally dis showed traces of marijuana, and they plied, operating to produce in the abled empl<>yeeS.By allowing emplO)-ers were the sole basis for the revocation of mind of the prisoner apprehension of 10 seek a reduction in the employee'sdi s probation. The persons who actually per harm or hope of favor; and if so, ability classification,the act providesan formedthe rests",ere not called to testify. whether true or false, such co,,fes incentive to the employer to rehabilitate The court of criminal appeals reasoned sions must be excluded from the con the employee. In the process, the legis that "the use of such hearsay evidence sideration of the jury as having been lative purpose of having the employee as the sole means of proving the viola procuredby undue influence. Seea lso rehabilitated is carried out The legisla tion of the probation condition denied Exparte McCary.528 So.2d 1133(A la. tion is therefore rationally related 10 a appellant the right to confront and cross 1988). legitimate state Interest and does not examine the person who originated the "It has long been held, under the violate the equal protection clause. factual information which formed the right against self-incrimination, that an basis for the revocation. For this reason, involuntarily given confession or in appellant was denied niinimal due pro criminating statement is not admissi Recent Decisions of the cess of law and the evidence was insuf. ble in a subsequent criminal prosecu Alabama Court of Criminal ficient 10 provea the lleged violation of tion. A great variety of circumstances Appeals probation:• may cause a confessiono r incriminat· ing statement to be classified as in Implied promise can negate voluntary.The test applicable in both Probation revocation- hearsay alone voluntariness of confession state and federal prosecutions is not enough Jones v. State, CR-89-745 (Ala.Crin,. whether the confession was free and Mallette v. State, CR-89-1054 (Ala.Crim. App,, November 16, 1990)- Can a police voluntary; that is, it must not have App., November 16, 1990)- Mallette officer'sstate ment to a suspect that "you been extracted by any sort of threats contends that the trial court commined can help yourself' amount to an implied or violence, nor obtained by direct or reversible error by revoking his probation promise that the defendantwou ld receive implied promises, however slight, nor solely based upon heresay evidence in lighter punishment and thereby negate by the exenion of any improper in• the form of two laboratory analyses. A the voluntariness of his confession? A fluence:· unanimous Alabama Coun of Criminal unanimous Alabama Court of Criminal Appeals agreed and remanded with Appeals answered yes. C. Gamble, McE/roy's Alabama Evidence directions. Defendant was indicted and convicted §200.01 (3d ed. 1977). in the circuit court of Geneva County for Srationery two drug offenses. On appeal, he con SMALL FIRM SOFIWARE for rhe Legal tended that his confession was rendered FOR IBM PC'S ANOCOMPATl BLES .Professional involuntary during the interrogation by TIME A 81lLINO O $99• an interrogating officer telling him that TRUST ACCOUNT ING Cl $99• INTEGRAT£0 TIME. SIW NG, FREE PROOFS "he could help himself:· During the GENERAL L.EOGEA. TRUST course of the suppression hearing. the of ANO CHECK WRITEA O $299• For l'ree catalog orac1uu l :H1n1plc.s MO~E INFORM.\TION O FREE ficer admitted that he made this state "Add fl D H•ndling 1-800-633-6050 lhe&ePl'OOdm& are ao tJmple ,o ~it, vou,leo,I ment. The Alabama Court of Criminal secnttarywill "-"- 111emrunning In resa 1t1an •n nour. Appea ls reasoned that "... it is AttorneySoftware, Inc. DEWBERRY reasonable to assume that when Deputy ~l'ar A~Wlilcaby~ En gTav in g C o mpan y Hobbs told appellant that he could help 1801 Australian Av e. So. W o rl d's L a rges t E n gT a vc r Suite 101 PO no,.'.'.':)11 . Blnnlng.harn.A L )520 1 himself, the deputy meant that the air (In AL call 1-991-2823) pellant could help himself by making a f :::·:~·;;;;:~·· \ wi;~l~-~o~ statement ... We are of the opinion that The Alabama Lawyer 53 Judge Panel500,in applyingthose legal accused to demand the nature and use of OYer-the-counrerdiet pills. The principlesto the foa<, foundthat Deputy cause of the accusation Is a funda defense obiected on the ground that Pan Hobbs' implied promise thal the defen mental component of the right 10 due nell was nol an expen wimess and was dani could help himself under the cir process:the defendant must fully and not qualified to tesolfy as 10 the ellects cumstances existing when the promise lntclligenrly under5landthe charge to of diet pills on the average person. The was made, would necessarily engender adequately prepare a defense. Young Al.ibama Court of Criminal Appeals a hope of favor in the appellant's mind. v. SI.ate, 348 So.2d544 (Ala.Com.App. agreed. 19771. "furthermore, because the For this reason. the statement was not Presiding Judge Taylorobserved : voluntarilygiven, and should have been charge is derived from a criminal "Moreover. Wl' are of the opinion stlltute, the statute itselfmust be suffi. excluded from the consideration of the that her testimony was undu ly cicnlly definite and certain 10 pass jury. lnnammatoryin that it interjected the coMtilulional muster:• Newberry v. Issueof drovingunder the influenceof State, 493 So.2d 995, 996-97 (Ala. Alabama's sta tute prohibitin g drugs Into the tna1 even though the 1986). brokering of adoption declared appellant was not charged m the on· unconstit utional In conclusion, Judge Bowencritically dictment w,th that offense. Minshew Stare v. Gooden, CR-89-384 (Ala. noted lhe following: v. Staie,542 So.2d307 (Ala.Crim.App. Crim.App., September 21, 1990)-Crow 1968).Therefore, the trial court erred ford, his wife and lhei r attorney were "We will not belabor this matter. by allowing rhe State to ellc,r testi separately indicted for "ad,-ertisingthat The s1;11uteis so vague, ambiguous, mony from Ms. Pannell reg.1rdingthe and broad that reasonable people they would adopt children and/or ••. use of 0\-er-the-counterdiet pills.• holding OU1inducemenis to a p.1rent.•• must necessarilygues• at its meaning to part with her infantchi ld" in vlolalion and differ as to its application. 11is The appellate court also found merit of §26-10.8, Code of Alabama (1975). simply Impossible 10s tate whar con in the defendant's contention that the Eachof the defend,1n1smOlled 10 dismiss, duct Isand is no1prohibited under the trial court erred in refusingto gl11ehi~ re challenging the constitutionalityof the statute. quested Jury charge concerning the re statute. N. the heanng, the slate was "In rhosparticular case, a significant quisite mental Intent for the offense of representedby assistantattorneys general indication that the statute is uncons1,- leaving the scene of the accident. Specif from the Office or the AttorneyGeneral, 1u1ionalis found in 1hefact that §26- ically, 1he coun refused to charge on as welI as attorneys from the Alabama 1().8 has been repealed by 1990 Ala. mental intent based upon its holding that Department of rluman Resources.The Acts, No. 90.554, known as the l<'.la §32-10.1 (leaving the scene) Is a strict attorney general's office had "problems bama Adoption Code; which be liability crime and no intent or mental with the vaguenessand some -lion comes effective January 1, 1991 Slate is required. about the constitu11onalityof the statute (omlning citations). The significance Section llA-2-4 , Code of Alabama as it now stand,:' The attorneys from is nol merely in the foct that §26-10-8 (1975)s tates in pertinent part: OHR felt "that I he statute is sound." has been repealed, but In the com (b) Although no culpable men,~! state The circuit court of Montgomery parison of the specificityand defini1e is expresslydesignated in a statue de ness of the new provisions with 1he County found that §26-1().8,Code of Ala finingan offense.an aJ)p 54 January I 99 I Fund for Public Education; Continu ing Legal Education Satelli te Network; Cum berland Institute (or Continuing Legal Education; Defense Research Institute; MCLE Estate Planni ng Council of Bim1ing ham, Inc.; Federal Energy Bar Associatio n; by Keith 8. No rman HunlSville-MadisonCounry Bar Associa- Dire ctor of Programs, 1.ion; Institutes on Bankruptcy Law;I nter Alabama State Bar national Association of Defense Counsel Legal sections, agency programs-U.S. and state governments; Mobile Bar Asso O n July 18, 1990, the MCLE Commis same reasons as the previous program; ciation; Montgomery County Bar Asso sion met at the Riverview Plaza in Mo and approved for 6.0 credits a mixed au ciatio n; Montgome ry Coun ty Trial bile. At that meeting, the Comm ission: dience seminar on law and church spon lawyers Association; Nashville Bar Asso approved, (or 6.0 credits, a mixed au sored by Cumberland Institute for CLE. ciation; National Association of Attorneys dience seminar o n "S" corporatio ns for On November 7. 1990, the MCLE General; National Associatio n of Bond both attorneys and CPAs offered by Cum Commission met at the state bar head Lawyers;Nat ional Association or R.1ilroad berland Institute for CLE; overruled the quarters in Mon tgomery. Al this meeting. Trial Counsel; Nationa l Bar Association; di rector's original decision denying ac the Commi ssion took the following ac Nationa l College of District Attorneys; creditation and approved, for 6.5 credilS, tion: instructed 1he director to request National College of Juvenile Justice; Na· a course on preventing employee law more information before rendering a de tional Health Lll\vyers Association; Na suilS sponsored by the University of Ala cisio n on a bar member's request for a tional Institute of Municipal LawOfficers; bama College o( Continuing Studies; and waiver of the 1990 CLE requirement be National Institute for Trial Ad'JOCacy;Na waived Regulation 3.4 so that instrncto rs cause the membe r would be on mater tional Judicial College; Natio nal Legal for a program on the new rules o( crim nity leave from July 1, 1990, through Aid and Defenders Association; National inal procedure cou ld claim CLE credit (or December I, 1990; and approved for 6.0 Organ i2a1ion of Social Security Clai m their presentatio ns without preparing CLE credits, a nursing home law seminar ants' Representatives; National Rural separate materials. for mixed audiences sponsored by the Electric Cooperative Association, Legal On Septembe.r 21, 1990, the MCLE Cumberla nd Institute for CLE. Division; Patent Resources Group, Inc.; Comm ission met at the slate bar head The Comm ission granted approved Practising law Institute; Southv,esternLe quarters in Mon tgomery. Al that meeting. sp0nsor status for 1991 to the ·sponsors gal Foundation; TennesseeAssoc iation of the MCLE Com mission: reviewed a bar I isted below: Accredited law schools Criminal Defense Lll\vyers; Transporta member's request for a waiver of the (ABA, AALS); Adminis trative Office of tion lawyers Association; Tuscaloosa MCLE requirement because he was Courts-Alabama Judicial College; Ala C.ounty Bar Association; and Tuscaloosa called to active dury and noted that un bama Bar Institute for Continui ng Legal County Trial Lawyers Association. der Rule 2.C.1. when a reservist or a Education; Alabama Consortium of Legal The Commission also, for the first time, member of the National Guard is acti Services Programs; Alabama Criminal granted approved sponsor status 10 the vated for mili tary duty, an attorney is en Defense Lawyers Association; Alabama following three sponsors: Bessemer Bar titled 10 claim an exemptio n from the Defense Lawyers Association; Alaba ma Association, National College of Juvenile MC LE requirement for the year in which D istrict Attorneys Association; Alaba ma Justice and Tuscaloosa County Trial he or she is called and for as long as he Lawyers Association; Alabama State Bar Lawyers. or she con tinues to serve in the mi litary; and bar sections; Alabama Trial Lawyers In othe r matters: the Com mission approved training programs sp0nsored by Association; American Bar Association voted to continue its past policy of deny WESTLAW and LEXIS for computer-assis and bar sections; American College of ing credit for topic s dealing w ith stress; ted legal research; upheld the di rector's Trial Lll\vyers; American Law Institute voted 10 adopt a policy 1ha1no more than decisio n denying accreditatio n for a pro American Bar Association, Committee 20 percent o( an approved sp0nsor's ac gram on RCRA corrective actio n which on Continuing Professional Education; credited programs be mixed aud ience had been denied accreditation because Association of Trial Lawyers of America; seminars; and voted 10 table until ilS next the program was designed primar ily for Atlanta Bar Association; Baldwin Coun meeting a request by the Ethics Educa nonlawyers in vio lation of Regulation ty Bar Association; bar associations of the tion Commi ttee fo the Alabama StateBa r 4.1.2.; upheld the director's decisio n sister states, the District of Columbia, to amend Regulation 3.5 10 allow extra denyi ng accreditation for an executive Puerto Rico and the trust territories; Bes credit for bar members attending ap environ mental briefing program which semer Bar Association; Birmingham ·ear proved CLE programs deali ng with the had been denied accreditation for the Association; Comme rcial Law League new rules of conduct. • The Alabama Lawyer 55 ''Is ThatAll ThereIs?'' by James Jay Mason (Thisportion of 1heourgoing pr!!S1dent's "Sieve, I've got news-you can't say you perhaps a merger of the two firms was final addressappeared In \,o/. 29, No. 42 charge a $100,000.00 retainer fee and an in order. She contlr,ued: of rile Bar Bulletin, an official publlca additional $1,000.00 an hour without "Steve, let us k11owwhen we should tlon of the State Bar of New Mexico.) sounding pretenrious... especla lly if you join you in California so that we c.in are writing to someone in uramie , begin doing whatever it is that you do. Wyoming. where you are considered In anticipation o( the mO\,e, we've all A couple of months ago, I'm sure many pretent ious if you wear socks 10 been practicing trying 10 say we charge of you saw the story In the WallStreet court, ... Hell, Steve,a ll the lawyers in $1,000.00 an hour with a straight face, Journalo f an attorney in Laramie,Wyom Laramie put together do ,1'1 charge but we haven't been able to do il .... ing. Becky Klemt. She had goucn a S l.000.00 an hour:' Anyway,becaus e I'll be new 10 the area $4.000 child support judgment for her She then mentioned that her law firm of international trade and g~politl c.11 clieni. The ex-husband had left Wyom in Laramie had an in1ema1ional flil\'Or relations, I'm thinking of only charging ing and mOlll!dto LosAngeles, so Becky because people at the firm regularly SS00.00 to $600.00 10 begin with, Will wrote many leners to LosA ngeles seek ordered MeKlcan food and one partner that cover our overhead! P.S.l ncident.1- Ing an attorney who would collect the had actually studied a foreign language, ly, we have advised our client ol your judgment for her client. She waited, but Latin, in high school and suggested that hourly rate. She is willing to pay you she received no r1?$ponse.Finally, a let· S1,000.00 an hour 10 collect this judg. ter arri\Oedfrom Steven G. Carris. a solo men1prcJYided 11 does not lake more than practitioner in Irving. Califomia. It read four seconds.· as follows: '.\ell, BeckyKlemt has since gouen Job 'W ithout sounding pretentious, my Don't let your offers and marriage proposals from nil current retainer for c.ises is a flat Alabama Lawyers over the country. In fact, the main office S 100,000.00,with an additional charge get worn, or Amoco in Calilomia recommended 10 o( Sl,000.00 per hour. Since I specialize the regional office In Denver 1ha1they in lntemational trade in g~politic.il re torn or hire Becky solely on the basis or 1he lations between the Middle East and thrown away. le1ter. Europe, my clienrele (which was mis Order a binder So,again, I poso 10yo u about 1heprac spelled) is very unique and limited, and tice of law and the search for the ultimate I am afraid that I am unable to accept (or two!) number of billable hours. As Peggy Lee other work at this time:" at $10.00 once sang.· ts that all there is?"Those of This letter inspired Beckyto write what each from: you who participate in other good causes has now become a famous letter around knO\Vthat there Is much more 10 the the country. She began: The practice of law. Alabama Lawyer P.O. Box 4156 Montgomery, AL 36101 or call (205) 269-1515 56 January 1991 Opinionsof theGeneral Counsel by Alex W. Jackson, assistant general counsel QU ESTION: something more in the nature of a public service than a limha The Disciplinary Commission has been asked to review tion on the corporate or taxable status of the service was the three similar marketing schemes offered by 1he Personal In motivation behind this provision. For-profitse rvices are not jury Trial LawyersAssociat ion, Inc., Bankruptcy Attorneys permiued due, at least in part, to the fee-splilling considera Trust, and DWI/DUI Defense League. PITLA(t he Personal In tions mentioned earlier. However,as previously stated, these jury Trial Lawyers Associa1ion, Inc.), is organized as a non issues do not form the basis or our opinion. profit corporation under the laws of 1he Slilte of Delaware. A more determinative issue, particularly in reference to the Derailed materials of this na1urea re not available in reference PersonalInjury Triallawyers Association, Inc., arises from the to the Bankruptcy AttorneysTrust or the DWI/DUI Defense implication of exper1ise or specialization conveyed by the title League,but their organization and governance is believed 10 of the corporation. TemporaryD isciplinary Rule 2-101, when be so similar 1ha1 discussion of the PITLAp rogram will be read in lotality, and when read together with Temporary DR sufficient to address 1he other two. 2-104, clearly prohibits any implication or statement of specialization or experiise. The Supreme Couri of Alabama, ANSWER: in recognizing that some types of truthful and non-deceptive information about the educational qualifications and certifica In 1he view of the Disciplinary Commission, par1icipation tions granted to lawyers by outside certifying organizations by an Alabama lawyer in any of the three progroms discussed should be allowed in attorneyadver1ising, adopted Temporary herein, Personal Injury Trial Lawyers Association, Inc., the Disciplinary Rule 2-112, which provides for the approval of BankruptcyAttorneys Trust , or the DWI/DUI Defense League, cerriryingorganiza tions by the Alabama State Bar prior to in would constitute a breach or the Code of Professional Respon clusion of 1hat information in attorney advertising. The pro sibili ty. visions of these various Disciplinary Rulesare set for1h herein, to-wit: DISCUSSION: "Temporary OR 2-102 Advertising TemporaryD isciplinary Rule 2-102(0 of the Code prohibits (C) A lawyer shall not give anything of value to a person the participation of an Alabama lawyer in a for-profit referral for recommending the lawyer's services, except that a service. While it is acknowledged that PITLAstyles i tself a not lawyer may pay the reasonable cost of any advertise for-profit corporation, and further acknowledged lhat the State ment or written com,nunication permitted by this rule of Delaware has granted not-for-profitcorpora te status to and may pay the usual charges of a not-for-profit lawyer PITLA,the admonition of Temporary DR 2-102(C)is not solely referral service:· determi nee!by the tax status of the corporate entity. One in Temporary Disciplinary Rule 2-IOl provides as follows: tent of DR 2-102(C)is to prevent in-person or telephonic mar "DR 2-101 Communications Concerning a Lawyer's keting of legal services by non-lawyers,an d by organizations Services or entities not subject to direct regulation by the authorized A lawyer sha lI not make or cause to be made a false or regulatory agency, (i.e., the state bar). misleading communication about the lawyer or the Another purpose or the rule is to prevent fee-spliuing by lawyer'sservices. A communication is false or mislead lawyers with non-lawyers,and a third purpose is to limit the ing if it: economic factors that might encourage solicitation. The not (A) Contains a material misrepresentation of fact or law, for-profit language is suggested by United States Supreme or omits a fact necessary to make the statement co,1- Coun opinions in the Primusand Buuon cases. In re Primus, sidered as a whole not materially misleading. 436 U.S.4 12 (1978)and NAACPv. Buuon, 371 U.S. 415 (1963J. (BJ Is likely 10 create an unjustified expectation about Accordingly, these programs violate the spirit, if nol the let results the lawyer can achieve, or states or implies ter, of DR 2-102(C). Compliance with 1he form is not the same that the lawyer can achieve results by means that as compliance with the spirit of the rule. It is our opinion violate the rules of professional conduct or other law; that the drafters of this rule intended the 11ot-for-proOt refer· or ral service concept to lirnit the operalion of referral services (CJ Compares the quality or t·he lawyer's services with to those organized and operated to serve the public and to the quality of other lawyers' services, except as pro provide information about legal services10 the disadvantaged; vided in Temporary DR 2-104. The Alabama Lawyer 57 (D) Communicates rhe cenificarion effective until appro,,ed by the tron, specialization or expertise. It is our of rhe lawyer by a certifying Disciplinary Comm1ss,on. furtheropinion that this name omits facts organization except as provided (2) The General Counsel shall necessary 10 make the Citle,raken as a in Temp0rary DR 2-112." make such investigation,fo rmal whole, not materially misleading and Temporary Disciplinary Ruic 2-104 stares or informal, as he shall deem thcl'ebyco nstitutes a per se violation of as follows: necessary or desirable. Upon the above-cited Disciplinary Rules. We "DR 2-104 Communicationof Fields conclusion o( his investigation hove noted in reaching this conclusion of Practice he shall prep.ire a written re that the "Standards for Panicipation", A lawyermay communlcare the fact port approvingor disapproving previously attached hereto and made a that the lawyer doe$ or does not the certifying organization. part hereof, attempt to CMablishsome practice in particular fields of law. A (3) Upon approv.11by the General minimum standards to be applied to at lawyer shalI not state or imply that Counsel of the certifying or tomeys participating In the PITLA pro the lawyer is a spedalls l except as ganization, the General Coun gram. These same st.1ndJrds create an follows: sel shall gi"'1 notice of the ap additional Implication that lawyerspa r (AJ A laW)'t!radmiued to engage In proval. ticipating in the PITLAprogram h3'1! patent practice before the United (4) If the General Counsel disap bl)en certified or approved or endorsed States Patenr and TrademarkOf. plO\'!!dof the certifyingorgani by thi~ group or entity and found to be fice may use !ht' designation 'pa zation, then the applicant may deserving of inclusion in the PITLApro tent attorney' or a subsrantially within sixty (60) days of the gram. In our view this quasl 58 /anuary 1991 gram. Once again, an apparent ad governingboards organized primarily 10 The consuming publlc Is lead 10 believe herence 10 the form or 1he rule exists meet bar advertising criteria. the main 1ha1, by calling a WATS number without due consldera1ion or the sub point ol common interest is economic; mentioned in a very slick, prolessional stance, or in1en1, or 1he rule. all of the pariiclpanlSmake their checks ad, they are being plugged into a net Under these programs a certain num out 101he same marketing organization. work of caring. competent, highly ex ber of ad,1!rhSongslots are ilVililablein a Such organizational ,1ruC1ureas there is, perien ced ldwyers, selec ted and given, defined mari(eL PITLAmaterials ls imposed lrom 1heou1S1de along these approved by some group or entity and indicale 1ha1• referralsare handled on a economic lines, a dis1lnctlon in no way presented 10 the public "1laring the man strict ro1a1lonbasis and members may ac apparent 10 the con;uming public tle of "association".In fact, lew, ii any; ol quire as many po~ilions as they desire though, in all likelihood. of interest 10 these assump1lons are jusliOed, but the or course, the more rotation slots per a1- them. pub Ile has no way or knowing 1his lrom 1omcy will enhance the total percemage The names or these groups were not lhe I11 forma1ion provided. Competent, or 1he number or referrals for tha1 chosen by ;icclden1. Concepts such as experienced, dcdlca1ed lawyersmay par member... :· Whatever 1his mari(eting strength through numbers, group sup ticipate in these programs, bu1 the im scheme is, II is 1101a 1ruereferra l service, port, focused legal sklll s and the like are plication Is that ,111 participanlS meet nor is ii a 1rue cooperative advertising all a part of the Intended subliminal some higher slandard, and It is this im venture among auomeys. Pursuant to the message co!M!yl!dby 1henames ol these plication that Is so troublesome and so rules or participation, an entire market programs, and that makes the messages difficult to justily. This implication also can be captured by one law)1!ror law misleading. constilu1esa dear violation o( DR 2-101, !inn willing 10 make an economic com The group concept, or associational DR 2-104 and OR 2-112. mitment. Under such a scenario the impllca11on, 1s valid only in a limited, While thesegroups do not claim to be lawyer or law finn would receive all economic sense. There are no other certifying organizations subject 10 ap "referrals" generaled, an apparent con meaningfulassocia tional characteristics. proval under DR 2-112, an analysis of ceptual inconsis1cncy 10 the self-pro their method ol operation and advertis claimed mutuality or interest embodied ing content lea..es the impression 1ha1 in the program. A one-lawyer referralser they operate very close 10 the line. \Ne vice is a sham, as is a one-lawyer coop have already opined that lhere exists an era1ive advertising vcnlure. inference ol associational acceptance The Discipllnory Commission is (ur- and endorsement. INe believe this in 1her 1roubled by the Implication thal ference 10 be sufficien1ly s1rong, and of PITLA,e t al., are organized groups or such a character,as 10 conslilute a breach associations of hr,vyersthat have come Richard Wilson or DR 2-101(0) and DR 2-112. 1ogetherto offerspccin c legal servicesto Taken In 101.1lity, all o( these marketing the public. None ol 1heseparticular pro & Associates programs must be viewed as operating grams conia,n or require any meaningful outside 1hepermissive parameters estab organizattonal s1ruC1ureamong partici Registered lished by the Alab.lma Code of Profes pahng anorneys. There are no regular Professional sional Responsibility (and the Alabama meetings, no educational or social pro Court Reporters Rules or ProfessionalConduct, effective grams; in short, no incidents of a normal January 1, 1991,and substantiallysimilar organization or association (as used in 17 Mildred Street in all material respec1s).Accordingly. we Personal lniury TrialL,1w~rs Association Montgomery, Alabama 36104 are of the opinion 1ha1participation in o, DWI/DUI Derense league) COMDATCORPORATION HENDERSONPRIVATE INVESTIGATIONS ANNOUNCES fTS SOFTWARE M ATRIMONIAL/OOMESTIC SURVEILLANCE JNSTALJ.NIONAND SUPPORT • DMSJ0N WE l'llil /NS1ML v.oRDPERFEC1.t.OTUS 1· 2-3. flC D ON A PER HOURFEE 84S IS WE WILL ALSO INSTIU.J.COMPUTER CABLINGFO R SMALL OR I.AflGE NETWORKS.SUCH AS IBM TOKEN/I/NG CONFIDENTIA L• DISCREET FOR MOREINFORMATION CALL (205) 823·1905 FOR A BUSINESS OR LICENSED · BON DEO HOME INSTALLEDOUOTE. PO £b 5!5.391{352.55) 9 42 ,9111 dl9itat beep•r ,i , , , , , &1!'1,:JO~I The Alabama LawyN 59 Memorials James A. Avary-Lanett Admitted: 19n Died: December 16, 1990 (1923-3.3)and as a member o( 1he Ala George Patrick Brown, Jr.- Marshall, bama State Bar Boardof Commissioners Michigan 0949-53). >.dmitted: 1948 As a law)e~ he was of the old school Died: December 1, 1990 colorful, tenacious. alwaysan aggressive advocate and always a wonhy foe. Even Clarence William Dunker-Mod esto, In his losses (which were rare), his op California ponents always knew they had been in Admllled: 1935 a flghL Died: August 9, 1990 Poole'scharacter was recognized early by Dean A.J. Farrah who commented In Walter Frederick Eigenbrod-Hun tsville a lener dated July ll , 1917, in which he Admitted: 1947 recommended him for a commission: Died: November 8, 1990 "Mr. Poole is a good man, mentally, physically and morally, a man who dis John Oscar Harris-Montgom ery charged with fidelity every duty placed Admlned: 1934 upon him during his connection with 1he Died: December 19, 1990 Law School ... He has, In a remarkable ( Al VI~ POOL E degree, the qualities or a leader and Gifford Bcnnell Haynes, Jr.-B essemer would inspire the confidence and respt.>ct Admiued: 1969 of other men:• Died: November 27, 1990 After engaging In the general practice His ability again drew comment In of law in Greenville, Alabama, for more 1970from his old friend,J.0. Sentell(!hen George William McBurney--Florence than 60 years,Calvin Poole died at home editor of TheAlabama Lawyer,who re Admitted: 1940 September 20, 1990. He is survived by ferredto him as "a very resourcefullaw yer, ,vho has the uncanny facultyof being Dled: August 11, 1990 one son, Elisha C. Poole, also a lawyer, at the rightplace at the right time." 31 Ala. two grandsons, both of whom are law Wordlaw RamseyMcKinney, Jr.-Mobil e yers, and four great-grandchildren. lawyer 365 Uuly 1970). Admlned: 1965 Poole was born on a farm in Butler Also active and successful in business, Died: December 6, 1990 County on August 26, 1893, and received Poole served (or years as a director and his undergraduate degree in 1914, Phi later as chaim1anof the boardof Thefirst Jan Branton McMinn-Tuscaloosa Beta Kappa, and his law degree In 1917 National Bank of Greenville. Admined: 1978 from the University of Alabama. Known for his sharp wit as well as for Dil'd: November 25, 1990 He enlisted in the Army in 1917, was his legal talent, Calvin Poole will be long commissioned and seM?dwith distinc missed and not readily replaced. Calvin Pool-Creenvill e tion with the 7th Infantry RegimenLHe AdmiUed: 1917 was sent to France with the A.E.F.and H. Edward Mcferrin Died: September 20, 1990 participated in the banies of the Marne, Poole & Mcferrin St. Mihiel and Meuse-Argonne. He was Greenville, Alabama Hubert Lee Taylor-J asper awarded the Purple Hean for wounds re Admlned: 1967 ceived in combat. Died: November 8, 1990 Poole entered the general practice of law in Greenville in 1920and continued Elizabeth Johnson Wilbanks- in practice until his retirement in 1986, Birmingham a period of 67 ~ars. He servedas county Admlned: 1936 solicitor (1921-23), circuit solicitor Died: October 17, 1990 60 January 1991 DisciplinaryReport Disbarment Carter was suspended from practice before the Bankrupty • The Supreme Court of Alabama entered an order Court for one year and was found by the Discipli'nary Board NOi/ember13, 1990,d isbarring Birmingham lawyer James Can of the Alabama State Bar 10 have willfully neglected a legal non, Jr., effeclive December 26, 1990. Cannon failed to file matter entrusted 10 him, to have failed to seek the lawfulob a responsive pleading to certain disciplinary charges pending jectives of his client, intentionally failed to carry out a con against him, and, thus, was found guilty thereof. [ASBNos. tract of employment entered into with his client, prejudiced 88-747,88 -770 and 89-183] or damaged his client during the course of a professional rela tionship, and engaged in conduct that is prejudicial to the ad Public Censure ministration of justice. (ASBN o. 89-501] • On November 2, 1990, Charles Clifford Carter, an Alabamalawyer practicing in Columbus, Georgia,was publicly censured for violating Disciplinary Rules 6-101(A), 7-101 (A) Private Reprimand 0) (2) & (3). and 1-102 (A) (5) of the Code of Professional • On November 2, 1990, a lawyer was privately Responsibility of the AlabamaSta te Bar. Car1er fileda bankrupt reprimanded for making false or misleading communications cy petition in the United States BankruptcyCo urt for the Mid about ~1e lawyer or the lawyer'sserv ices. The lawyer ran an dle District of Alabama for a client, and thereafter failed to advertisement seeking election to a judgeship. In that adver attend the first meeting or creditors, failed 10 timely submit a tisement, the lawyer made material misrepresentations. omit confirmable proposed plan, failed to attend two "show cause'' ted facts necessary to make the statement considered as a hearings ordered by the bankruptcy judge, and failed 10 make whole not materially misleading, and compared the quality a timely refund of his fee to his client when ordered 10 do so of the lawyer'sservices with the quality of other lawyers' ser by the court. vices. [ASBNo. 90-406] • Time& Money Nothing is more important to your practice The Alabama State Bar provides services and pro ducts to save you time and money. Ridingthe Circuits Membershipserv ices are available to you at little or no cost. These services are provided for you as a member. Tallapoosa County Bar Association If you are interested in saving time and money, call ASB to obtain rurther information concerning any of The following officers were e lected for the 1991 the membership services listed: year: Car rental discounts CLEse minar schedules President: E. Paul Jones, FAXservice Alexander City Ethics opinions Group hospital, disability and life insurance Vice-president: Charles Reynolds, law office consulting service Alexander City lawyer referral legislative newsletter Secretary/Treasure r: Charles R. Gillenwaters, LEXIS Professional journal Alexander City Reports of Alabama Supreme Court decisions Sections (14 different areas of practice) Substance abuse assistance Travel programs ASB • Alabama State Bar • (205) 269-1515 The Alabama 1.;iwyer 61 Ing articles. Among these, 1he YLSis developing projects addressing issues such as quality or lifofor Alabama at· Young tomeys, and vanous problems facing law students and pre-law student~. I think the YLSIs uniquely su11edto ad Lawyers ' dress these Issues. National involvement We have several Alabama young Section lawyers involved on a national level Walker Percy Badh3n,, Ill with the Young Lawyers' Dlvi~loflol YLSPre sident the American Bar Association. Keith Norman, Jlm Priester, Robert Baugh, n December8, 1990, the Ex· grams oig.1nilations to condUC1a Buddy Smith, Duane Wilson, Bany I ecutJveCommittee o/ the Ala- youth judicial program each year for Ragsdale, and I all serve on llilrious state high school studen1s. The pro bama State Bar Young Law ABNYLDcommittees. This national yers' Section met for the fourth and gram ls similar to law school moot involvement has been rewarding and final time or l 990. The meeting was coun competitions and provides high providedre,:ognltion and appreciation a re50undingsuccess. The committee school students a good oPPortunityto for Alabama's young lawyoo. laid the groundwork for an ambitious gain insight and appreciation for the and imponan1 agenda for calendar legal sys1em.Section ExecutiveCom lo ca l affiliat es year 1991. Harold Albritton,p resident mittee member Charlie Anderson has The Alabama YLSis a statewide or of the state bar, attended 1he mee1ing worked tirelesslyon this project, and ganization which has a number of re as a special invitedgues1 and provided its enormous success and growth are gional or local affiliates.For example, much insight and encouragement, for due in large pan to him. I( you are in Binningham, Mobile, Montg0mery which we are grateful. terested In wori 62 /anuary 1991 11A1t1i1~Jll'fC11""'-'"".._.,....1W<,.....,..~,oa:nr.,,~...... ,. 01 ''1>1>1hloftetlfflod"' .. l~Ol "'°'l,w,r!io,,,. I SO.-1~• t.... $,$0,..., "'° li1l11n•I - · Nuol~ SU po -.1i..1i15 0 ~- 1,...,.Ut po;,~ --t. ~,.,...,,.~ _._....e,;..,.cco,dlllf.WII ,..., W1o,. 1"'""l<ri"' whrdule- 6",_r, "I I i-.ONd lllw N~ lt Ml,,ch 'ti ,-0. ..11111 ... ._.,,,. )t i,;o...... ,~~-11,...,, ..... ~.1.t11111f'"'«1tr -' ....,._,,.,_1e__ ftwNJw,w , .. ,« * At.b-1 ... ~ «-lllf The Alabama lawyer 63 Classified Notices in court. Can assist in design of struc ment examination. Published nat/inter SERVICES tured senlemenL Call David Godof· nar. Saen teen ye.us' trial experience in SERVICES: Jap.1neselanguage Se1vkes: sky-C&B Consuhin g Gro up, a state and federal couns of Alabama. Translation, inrerpretarion, typescrting, Corroon & Black company, 1927 1st Forgery, alteralio11s and document au word processing. Products liability,ad Avenue, N., Birmingham, Alabama rhenricity examinations in non to contact the officersor committee par Joan Ragsdale ticipants set forth below. Eimer White SectionNews At rhe organizational meeting. the Lant Davis following individuals Y.'ere elected to Al Hickey serve as officers and committee par· Hea lth Law Section formed Legislative and Significant Decisions ticipants: The year 1991 promises to be an e,c. Committee: citing year for auorneys practicing in rhe Officers: Mike Carlson, chairperson health care field. At an organizational Gregg Everett, chairperson Eugene Watson meeting Friday, November 30, 1990, Lant Davis, vice-chairperson Deane Corliss healrh care practitionersfrom around the Joan Ragsdale, secretaryhreasurer John Nolen s.tatemet to elea ofRcers,the executive Executive Council: Lenora Pate council and committee participants. John Humber Participationi n the Health Law Section Jim Mcferrin Chip Durhan, Mike Savage will be inexpensive, with annual dues Gregg Evere11 only S15. Over rhe next couple o( Al Hickey months, many plans will be made for the Bob Roper Newsletter Committee: coming year. Youwill be receiving addi Program Committee: Lois Beasley, chairperson tional information regarding the He.ihh Jim Wilson, chairperson Nancy Jones I.awSeaion. in the meantime, ifyou hnve Sydney Cook Jim Wilson questions, ideas or suggestions, feel free Lee Manin Tommy Klinner • /anua,y 199 I I r------ 0 Send me Alabama Mortgage Lmu, • Complete and rcrum this coupon today. hard cover,by l-Iany Cohen for $49.95. NM1E ______Aoo,u:.ss______0 Send me Cb«racter Evidence by Charles W Gamble for $25.00. S1C'1AT\1Jl£______0 Send me The Law ofShoplifti11g by Thomas Brad Bishop for $25.00. All orders must be PRE.PAID I 0 Yes, I'm interestedinA gm,,'.r SpecialOffer. Send me the three I bookslisted above at $79.95whi ch • Send this coupon with your check to: I I represents 20% O FF the regular I price of each book. ~#,ta-cP? ;,/!ti.li11j' {?;llpl /l{f" I P.O. Box59328 I llinningham, AL 35259 I I L------~ Alabama Mortgage I.aw The Law of Sllopllftlng, Character Evidence : (Han! covef) A Gulde lor Lawyers and Me.chants A Comprehensive Approach HarryCohen Thomas Brad Bishop Charles W. Gamble • fir, Gevr~o r!c~~r•trk Jlcnt, Ill Suareaic c~ud of l\l~b.1""1 445 r., • ter l'lvt:, Monlq1.e,y ,'\l 36130