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Author itative, up-to-date cov erag e r-----rn------, Written for the trial and appellate bench and bar, Alabama 1 Law of Evidence presents a fresh treatment of the subject. , MICHIE COMPANY Colquitt examines evidence law from a variety of sources and .. 11fl organizes it in a practical format, giving you the n,ost up,,to,. P.O. aox 1587 • CHARLOTTESVILLE, VA 22906 ,1581 date and usef,~ reference on Alabama evidence. The book 0 YES!Plea~ ~nd _ _ copies of AlabamaLaw of Evide1\ceatSSS•. contains citations to leading cases-including many of the moot (60990) recent- plus key statutes, rules, pattern Jury instructio ns, and 30.0ay Trial Offer: I may retu.m my purchasewilhin 30 days \Vithout appropriate treatises and articles. It includes a Table of Cases obligation iJ not con,pletely satisfied. Futur~ updates:v. •ill be sent to me with the sa.me return privileges. and an extensive Index. The author designed Alabama Law of 0 Paymentenclosed Evidence for annual supplementation so it \'lill remain a 0 Charge my O VISA O Mastei<:ard practical reference should new ru.les of evidence be adopted. Accow,tNu.mber Exp.Date,___ _ 0 Bill 1ne O BUJmy company (Plus sh ippi •\g and handling. TERMS: Not30 days) 0 Send me the current Michie Company cataJog Name ______Phone,______AccountName, ______Address'------O ty tate_ Zip,__ _ _,___ •Plu,~ l.l)Cwh(~._ ppll THE ALABAMALAWYE R JULY 1993/ 215 The Alabama INBRIEF a-w-yer July 1993 Volume 54, Number 4 PublishedMven 1lmesa year (lho seventhi$$OO 1sa bar direc tory edibon} by the AlabamtlState Sar. P .0 . Box 4 156. Montgomery, Alabama. 36101 . ON THE COVER: Phono(205) 269•1515. Historic live oaks shade Washington Square in Mobile, site of the 1993 Alabama Aot>onA, HtJtlake, ··········································-·Edl:o, State Bar Annual Meeting, July 15-17. Susan Shlrock OePaofa ...... Associate Editor Margaret Murphy ...... Managing Editor Boa,d o1 EdilOf'• INSIDE THIS ISSUE: WAlam J. Uncletwooo, Tuscumbia , Jelttey L wther , Maeiltt • Ntx I...Mohaford. Jr ,, MOl'4gOmery• Alan T. Roge,rs,Binnlng The Alabama Limited Liability Company Act: A New Entity Choice l\lm • J E, Sh-yor , Jr.• Entoiptl#o • LeahO , TJylor, Blrmlng• nam • Oeborel'I Alloy Smllh, efrm.lnoham • onre Blan. By Bradley J. Sklar ...... •...... ••...... 232 Birmln,gham• John W , Harg,OYe,BlrmlnQham • flay 0. Noojln, J, • Blrmfn0h3tn• Dtbotlllh J. Long, Brn,ir,gham • Sht rl)' Col• lum-&f.lef, Mofllgomeiy, LMlra Pede., Birmingham• Sat• A Copyright Law Surprises for Non-<:opyright Lawyers McGtvaren. 8 frmlngham • Mon. Joseph A. Colquiu. Tusca\Gosa. • SusanE . RU$$.MontgOme,ry • John Mark Katt, By Benjamin 8. Spratling Ill and Beall D. Cary, Jr...... •...... •...... •...... 240 Bltmlrv.,ham• RaymondL JOhnson,Jr . • Blrmlngl\llm• Pl'lmp A. uird , J.111* • Cec::ilM , TIPIOO.Jf .. ()pelha • F«r•l Lana, Mobile• Hon. Jiuc,t Mbddol'...Morr1gomory • J ,W. Goodlot, Jr.. Uo;verait,Y of Alabama School of Law Career Sen,lces Mobil• • MlJ1c O. Hes&. arm1ngl'lam• Steve P BruMon . Offers Help for Employen Gadsdan • 8enlamln8 . Spradlng, rn, Bfrmlngham 6oard occom missioners 8y Segaii Friedman...... 253 Liaison ...... , .,_,•• Sam!Jtl A. Aumore,Jr •• B;mlngharn Office.-. The Uninvited Guest? Clareooe M. Sntall.Jf ., Bl"'*lgham ·----- PteSldonl JAmt'l R. St41t. Momgomory ...... Pr~n1 .. 1ec1 By James C. Stevens ...... •...... ,254 Jolin &le Chason,Bay MIMt'llt~-·--·-·-···· Vdo~ ftog!nald T. Mamne,r, MontoomMY, ...... __,_w Secrewy Boa.tdot COmmi1slonctl'$ Products Liability and Contributory Negligence f&tCFcu !L EdwMI P lutnl!t. Jt., ChalOffl• 2nd 0.CUILJcmn By D.Ala n Thomas and Nancy S. Akel.•...... •...... 26 1 A. Nldlola. Luveme • 3rd Clrcutl, LYM AOl>ertsotlJGCkson , aay,on • 4.th crtculL JoM w. Ktlly. Ill, S.lma • SIiiCin:luit. John Perey Omt. II,.o.c.~ue • 61h Circull, PlflCe Nd. t , Wa1· '°"P. c ,ownO\IGf, T~loo6a . &;inCltcull, Place No. 2. John A.Owens, Tuscaloosa • 7lfl OiQIII. Artwr F, Filt. UI, Annl$10!\ • 811,Cln:1.111. A.J. Coleman, Deca:ur • 91h Clrcu.'1,WIIIIMn D . ScrvggJ. Jr•• For1Payne · 10lh Circuit.Ptace Ho. I . Samuet H. Fnirii:lln,Bfflllngnatn • 1Olh ClrM, ~· No. 2. James W. President's Page...... •...... 218 List of NewA dmittees ...... 2 48 GeWln.. 81rmifl0ham, 10th Citcult. Place No. 3. James s . ASBal a Glance ...... 219 Statistics of Interest...... 249 Lloyd, Bitmlnl)h.rn • 10lh ca,cu!t, PJacaNo " · Samuel A. Executive Director's Report...... 220 Rumore, Jt ., Blrmlngtl,m • 10th Circu,t.Plee.o No . 5, TlmQC'ly CroupP hoto ....•...... •..250 L OilaRI. Birmingham , 10th Ctfcu11,.Ptace No. 6, Mac B Bar Brieis ...... 221 CL£ Opportunities ...... 25! GrtJt.VOS,Blrmlngtiam • IOChCircuit . PlaQaNo 1. J, Mason About Members, AmongP irms...... 223 Opinions of the General Counsel...... 2 .52 OaYil-, Blrmlngl)atn • 10tl\ ClrOJI!, PIGU No 8, Oray10ll N Jam•11 Sifm!ngham • 10th Clrw lL Plaoe No. 9. Calhy S, YoungLawye rs' Section ...... 2 25 Disciplinary Report ...... •...... 2 59 Wtlghl, e.tmi1"1Qh11m• to,;,i Circuil, Bo$$0mt r C'-lt·Olt. Gtorge BuildingA labama'sCourlhouses ...... 228 Hlg9inbo1ham. Se&a.emer• l 1171Circun . RobeH M. till. J, .• Recent Decisions ...... 268 FIQren¢t • 1aot Cirwit. W, K.-1h \'/~~ . Ttoy • 13#l Circuit. Memorials...... 234 LegislativeWrap-Up •...... 273 Pla,oe No, 1. Vlcto( tL l«t, Jr., Mobile • 1:lm c'irculL PIiie. No. Lawyersin the Family...... •246 ClassifiedN olices...... •..2 76 2, 8roox G. Molll'lff. Mobllt • 13thClm.ilt. Place No. 3. Cillne O'Retll. rn. Mobile • 13$ Circud. Plate Ho. "· St!'fflTIO!\ T Aowe,M ot>lla• 1•1h<>cult. It Je'II Donaldson , Jupe, • ,sm Citcull, PIX• No, 1, Ri;h;llrdH Gill, Mompc,n,ery• 151hCir • AL.\BAMASTA TE BAR HEADQUARTERS STAFF ouiL PtaoaNo . 2, Vl4flda 0. O.Wteauk , MOtllQetnery • 15ll\ 415 De;ter A"nu,, Montgomery. Al. 36104 (205)269 ·1515 • FAX(205) 261-6310 Ci'ctlil. Pio«. Ho. 3. Jiamese Wllliamt,,Monipom•iy • 1su, Ciroo!t.Place No. 4., Aitl'IIM Alabama Lau,yer.s Sen,ing AlabamaLaw, ·cr$ u A, rlu-um<$ cm,fronting lawyas wda:,·l,eccmu, n'f'r morr com/>kx, CLE 1>N> fiddtr I .l'Urf'WM 'A'lflMll, Sttso;1l, P'a.yne.&C"".ampbcU , P.C. 8/nnl'W' Scprcmbc:rCou roes Sm.ollEMa1<,. Dmnm,(h.,m lit~ Rod°"""''"'"", E-.,uc I.a" ~fonl(fflln) ,,nJ ~ .-.u,omobllrColll\;on ( ~-.,,Smmur. Moak Alabama S.r ln,111u1 Call J.SOQ.c,27,65I~ or 205,HS-6230 for n,urclnform11don. THE ALABAMAI.A WYER JULY1993 / 217 PRESIDENT'SPAGE LETTER To THEG OVERNOR June 1, 1993 The HonorableJames E. Folsom, Jr. Governorof Alabama State CapitolBuilding Montgomery,Alabama 36130 Cla ren ce M. Sma ll, J r. Dear GovernorFo lsom: Yourfather was elected Governorof Alabamain 1946on the methods of self-improvement that a sound education a platformof education reform.Subsequen tly, his vision of can reveal.All o ur livesare made easier when we are given a well-educated constituency was frustrated by political the tools which enable us to makewise decisions-to exer favoritism.Despite lhe levy of a tobacco tax, increases in cise goodj udgment-about our health, our work and our the salestax and a two-centbeer tax,all earmarkedfor edu general welfare.T o livefruitfu l lives,t hough, we must have cation. Alabamastill ended up with an underfundede duca the opportunityto be productive. tion system driven by political, rather than qualitative. Weare told by the experts in industrial recruitment that educational considerations. the education level of the availablework force is a central Legislators without collegedegrees have been appointed consideration in site selection.In today'swor ld of complex presidents of our colleges,a barber teaching prisoners his technologyand global markets, to rely on cheap but igno· tonsorial skills is paid $1 i,000 more a year than a physics rant labor to attract business is senseless. Production of professor at Jefferson State, and needless duplication of structurally complexproducts requires a skilled and intelli servicesabound as politiciansreward the ir unqualified but gent labor pool. Concomitantly, those higher skills result innuential friends withjobs . in higher pay for the employeeand his or her family.Alaba While such squandering takes place, a sixth-gradesci mawi ll never close the per capita incomegap behind other ence teacher in south Alabamashows h~r students a pic states unli I all of our people have the opportunity to be ture of a microscopebecause she does not have a real one. well-educated. The science students in ChoctawCounty li ne up to use one No more studies are necessaryto implementU 1e plans to of the only two Bunsen burners in the entire system. The achieve this goal. The expertise is availableto guide you kids at Alberta ElementarySchool pretend to swing on a and lhe Legislaturein this critical endeavor.T o understand set that has no seats or chains, and a classroom table in the problem, one need only read Judge Gene Reese'so pin· Wilcox County is propped up by milk cartons. Today, ion holding that the fundingof Alabamaschoo ls is uncon Alabamahas schoolswi thout sciencelabs, l ibraries without stil u t ional and has resulted in an inadequate and librariansand booksthat are infestedwit h termites. inequitable sy,;tem. Ask Auburn's distinguishedprofessor. Had your faU1er's vision in 1945 becomereality, the spe WayneP lynt, about the relationshipbetween the qualityof cial legislative session on education and lax reform which our schoolsand our economy. To find the solution, study you havevowed to call almosta half century later wouldbe Alabama Cap Analysis produced by Bill Smith and his A unnecessary.His wish never became realityand the imple Plus Coalition.That document tells you where we need to mentation of that goal has fallento you. take our schools and how to gel there. Call on Bo Torbert Today, a half million of the citizens oi our state are and Tom Carruthers, who headed tax reform commissions, unable to read and write. One in three Alabamachildren to showus how the funding must be generated. lives in poverty-th e second highest in the nation. The Through meaningfuleducat ion and tax reform, Alabama 1991 census ranked us 47th among 50 states in family can move to the forefront among progressive southern income. We are 50th in percentage of adults who finish states. The Alabama Slate Bar 1vants to help you take us high school. there. It should be a '"given" that each citizen in Alabama is entitled to be taught the lessonsof historyso he or she will Respectfully, not repeat its mistakes. It is difficult, if not impossible. to ClarenceM. Small, Jr. relieve the burdens of povertyi f we havenever been taught President,Alabama State . Bar 218 / JULY1993 THE ALABAMALAWYER 1, '7o«,dl 1(eep *" d CLECalendar? "" Bar directories for 1992-93now cost d n update . has been . $25 for ASBmembe rs and $40 for " Nee a if a seminar CLEsemi · non-members. Send check or Need to l THE ALABAMALAWYER EXECUTIVEDIRECTOR'S REPORT ALABAMAHOSTS 1993 SCBP he Alabama State Bar will be the host Clear. The Grand Hotel again has been selected as for the Silver Anniversary meeting of the 1993 location. The date will be October 21-24, [I the Southern Conferenceof Bar Presi 1993. Our conference will begin Thursday evening dents. The SCBP annual meeting was and concludewiU 1 a farewell brunch on Sunday. instituted in 1969 and first met in Biloxi, Mississip ll is anticipated at least a minimum of 100 con pi. In addition to an annual meeting each October, ferees with spouses will come lo Alaban1a's Eastern the conference meets at each annual and mid-year Shore. These conferences are self-sustaining and meeting of the American Bar Association for one are supported with a registration fee paid by each afternoon session preceding the meeting of the attendee. The Silver Anniversary program will be a National Conference of Bar Presidents. retrospective of the last 25 ye.irs of law practice Twenty bar associations, within 17 states, com and bar activities in the conference region. United prise the SCBP since there are both unified and States Circuit Judge Prank M. Johnson, Jr., who voluntary bar associations in North Carolina, Vir keynotedA labama's 1974 meeting, has been invited ginia and West Virginia. Other states represented to keynote the 1993 gathering. It is anticipated in the conference are Alaba- that several former ABApr esi· ma, Arkansas. Florida, Geor- dents, who were earlier presi gia, Kansas, Kentuc ky, dents of the state bars, will be Louisiana, Maryland, Missis active participants on the pro sippi, Missouri. Oklahoma , gram. South Carolina, Tennessee, James R. Seale of Mon t and Texas. gomery is the president of the There are five additional SCBP as a conference tradi regional conferencescovering tion by virtue of Alabama's other geographic areas of the host role. "Spud" will preside country. These are the Mid at the NewY ork annual meet Atlantic, New gngland, Mid ing. as well as lhe 1994 mid w est, The Jack Rabbi t year meeting in Kansas City. (Association of the Bars of the The presidency then will pass Western Plains and Moun lo l(entucky, which will host ta ins), and Western States. the 1994SC BP meeting. Several states hold member This meeting will afford us ships in two different regional Reginald T. Hamner an opportunity to showcase conferences. our Eastern Shore. Having The conferences usua lly attende d the 1974 meeting, include as conferees a mini- when the late Alto Lee of mum of four delegates for each state. These are the Dothan was SCBP leader, I know the positives that president, president-elect, immediate past presi come to our bar association from the association's dent and executive director. Several conferences leadership role. I am excited that we again have invite all former presidents. This is the policy of this opportunity. It is pa1ticularly meaningful that the Southern Conference; however. the former past Presidents Stone, Harris and Greaves,as well presidents attend with less frequency the further as President-elect Broox Holmes, will be able to awayt hey are from their incumbency. host their colleagues from other states in their Alabama hosted the 1974 SCBPmeeting al Point local area. • 220 /JU LY 1993 THEALABAMA LAWYER BAR BRIEFS Richard C. Keller of Northport,Alaba plies are limited so only one book per David M. Olive o( Fort Smjth, ma is the recipient of the 1992-93 Burr person or businesswill be sent Howev Arkansaswas appointed to the Arkansas & Forman law scholarship. The award, er, lhose who receive the book may Bar Association's In-Mouse Corporate which covers Fulltuition, is given annu reprint or copythe book for further dis Counsel Commillec recently.Th e com ally to an outst.inding second- or third tribution. Requestsfor the book should mittee consists of attorneys with special year lawstudent. be sent lo: Business Division,Alabama interest In this area who providea forum Keller is a third-year law student al Secretaryo f State. 1>.o. Box 5616, Mont for lawyers employed by corporations the Universityor AlabamaSchool of Law gomery, Alabama 36103. Phone (205) and other business organizations to in Tuscaloosa.Burr & Forman's offices 242-7200. examinecommon problems and develop are localed In Birmingham and Huntsville. Accordingt o Henl')• T. Henul , presi dent o( Attorneys Insurance Mutual of Alaba_ma,Inc. , as of May 6, 1993. AJM had exceeded 1,000insureds, with an NOTICE exactcount of 1,004. AIM is the AlabamaState Bar-related malpracticeinsurance company. Robert G. Tate, a senior partner with Burr 6l Forman, has been appointed to a ALABAMA special panel formed by the American Arbitration Association. Called "The Large, Complex Case Program", the SUPREME COURT panelwas establishedto provide an alter native method of resolution for large, complex business disputes. The Ameri The Supreme Courtof Alabama presently has before ll e set of can Arbitration Associationselected 36 proposed rules of evidence . Those proposed rules have been approved arbitration attorneys, five of whomare from Alabama.to serveon the published f0< notice purposes ,n the Southern Reporter (2d) Georgia/Alabamapanel. advance sheet dated May 13, 1993. A supreme court order of Tate is a memberof the AmericanCol- Ap ril 27, 1993 published in the same advance sheet allows 1ege o( Trial Lawyers, the Alabama Defense LawyersAssociation, and the Interested persons to file comments regarding those proposed Litigation Section o( the American Bar rules Such comments should be flied with Robert G. Esdale, Association. clerK, Supreme Court of Alabama, Judicial Building, 445 Dexter Uniform Commerclnl Codefil ers con Avenu e. Montgomery , Alabama 36104 . Comments must be fused by UCCprocedures can find help filed no later than August 27, 1993 in a new handbookproduced by the Sec retary or State's oriice. Alabama's Uni The court has scheduled a hearing on those proposed rules. at form Commercial Code Filing 9 a.m., Thursday, October 7, 1993 In the supreme court's court Procedures & Forms takes UCCcus room. Anyone desirfng to appear before the court at that hear tomers through the what. where, when and how o( r.tingsunder Part 3 and Part ing should hie an appropriate request with the clerk no later 4 or the ucc. than August 27, 1993. In additionto helping customerswith correct filing procedures.the book out George Earl Smith lines the ming systemin the Secretaryor Reporter of Decision s State's olnce and how public informa Alabama Supreme Court tion requests on UCCmatt ers, including requests for copies, are handled. The book is free to the public. Sup· THEALABAMA LAWYER JULY1 993/ 221 educational programs of particular inter Birmingham firm of Lange, Simpson, Louis Salmon Professorship of Law at est to lawyerswo rking for businesses. Robinson & Somerville. He is a 1942 the University of Alabama School of Law. Olive is a 1975 admittee to the Alaba grad uate of the University of North Salmon is a member of Lange Simpson ma State Bar and works with Donrey Carolina. He received his LL.B. from at the firm's Huntsville office. He is a MediaGroup. the Universityof Alabama School of Law 1948 graduate of the University of Alaba in 1948 and his LL.M. from Harvard Robert McDavid Smith recently ma School of Law, and currently serves Universityin 1949. Smith was admitted received the 1993 Sam Pipes Award on the law school's Capital Campaign to the Alabama State Bar in 1949, and given by the Farrah Law Society. The Steering Committee. He is a member of has practiced with l..angeSimpson since Pipes Awardis presented annually to the the board of directors and past president U1en. He is a member of the American University of Alabama School of Law of the University of Alabama School of Judicature Society and a fellow of the alumnus who makes the greatest contri Law Foundation and was instrumental American Collegeof Trial Lawyers. bution toward making the law school a in the law school completion campaign. national leader in legal education. M. Louis Salmon has committed a He servedas president of the Huntsville Smith is the senior partner in the deferred gift of $100.000to create the M. MadisonCo unty Bar Association. • AFFORDABLECOMPUTERIZED •••••••••• •••••••••••••••••••• LEGALRESEARCH k a small firm attorney or sole practitioner why they United States District Court and applicable U.S. Circuit have not yet subscribed to a compute rized legal Court of Appeals cases. Nesearch service and you will probablyget a four-letter Por a limited time only, an introductory offer of $50 for word in response:cost. one month's unlimited use is available to all new sub There is an alternative. A new program called Maximum scribers, through the Alabama State Bar. Value Products offersa different twist on traditional comput· Mead Data Central. the provider of the 1.EXIS®service . erized research subscriptionsas well as CD ROM.Now, s mall said the MVPprogra m contains the materials most needed firms and solos can conduct unlimited LEXJS® research in by smaller law offices, as confirmedi n a recent survey it con all of the Alabamamat erials, for one flat. low monthly rate. ducted. A law office can have a LEXJS®subscription for $135 a The survey found that, overall,a typical attorney in a firm month. plus applicable subscription fees ($25 per month of fiveor fewer lawyersconducts more than six hours of legal through the AlabamaS tate Bar), for up to three attorneys. research a week,almost 90 percent of it in state materials. The LEXIS® MVPprogram costs $45 a month for each addi "These research patterns were uppermost in our minds tional attorney. when we developed the MVP program," said G.M. McGill, An MVPs ubscriber can search Alabamacaselaw, anno ted vice-president of sales and marketing for legal information statutes and the advanced legislativeservice, as well as sev servicesal MeadData Central. era I top law reviews as much as they want under the McGill said the MVPp rogram provides a more efficient, monthly fixed rate . Online materials are continuous ly cost-effectiveway to conduct legal research by giving equal updated as information becomes available, so users will accessto extensivestate law materials. have unlimited access to the most current materials at all Complete and current state statutes and codes are the times. most imp0rtant legal resource, said the attorneys surveyed. Authors Barry D. Bayer and Benjamin H. Cohen reviewed Currentness is a key attribute of online research and was Mead Data Central's new MVP program in legal Times ·and consideredvery important to those surveyedwhen they were concluded that, "Lawyers with primarily state law concerns askedwhat types of materials they research. or those practicing alone or in small groups should find MVP Although it'varies by state, 75 to 90 percent of those ques almost irresist.able." tioned said they have access to a personal computer. most In addition. MVPs ubscribers will be able to choose a $45- often in their office. That mea11sthe online service should a-month option for up to three attorneys for un limited save a trip to the law library. Online printing of MVPdocuments. Another option available To find out more about the MVPp rogram, contact Teresa is a $30-a-month nat rate for up to three attorneys to search Normand at (800)356-6548 . • 222 / JULY1 993 THE ALABAMALAWYE:R ABOUTMEMBERS, AMONG FIRMS relocation of her office lo 3021 Loma 3590I. Phone (205)543-9790. ABOUT MEMBERS ' Road, Suite 100, Birmingham,Alabama Bond & Boles announces that John 35216.Phone (205)979-7529. C. Larsen has become associated with Harold T. Ackerman has mo,•ed his Lany R. Mann, rormerlyor Aldridge& the firm. He previouslyserved on active officesto 1821 Center Point Road. Birm 1-lawkins, announces lhe opening of his duty with the U.S.Army Judge Advocate ingham, Al,,boma352 15. Phone (205) office al 1305 Brown MorxTower, 2000 General's Corps al Redstone Arsenal, 853-6896. First Avenue, North, Birmingham, Alabama. He is joining th e firm's Frank H. Hawthome. Jr. announces Alabama35203. Phone (205)3 26-6500. Huntsvili e ornce. he has left the fir m of McPhill ips, Reggie Stephens announces the relo Kaffer & Pond an nounces that Hawthorne. Shinbaum & Gill and his cation of his offlcerrom 1110M ontlimar WilliamE. Pipkin, Jr., formerlyan asso new omce is located al 207 Montgomery Drive, Suite 530. to Suite 810. Mobile, ciate with Slntz, Campbell.Duke & Ta)'· Street, Suite 1100. Montgomery, Alaba Alabama36609. Phone (205)344-6822. lor, hasJoined the firm. The firm's name ma 36104.Phone (205)269-5010. John C. Calhoun announces lhe relo has been changed to Kaffer, Pond & Sharon D. llindman announces the cation of has omces to 505 20th Street. Pipkin. omces are located at 150 Cov opening of her offict al 111 Jackson North. Suite 950. Financial Center, ernmenl Street, Suite 3003, Mobile, A,•enue, South. Russellville, Alabama Birmingham, Alabama 35203. Phone Alabama 36602. The firm's mailing 35653. The mailing address is P.O. Box (205)251-4300. address is P.O. Box2104, Mobile36652. 339, Russelh•ille 35653. Phone (205) William E. Cue announces the relo Phone 1205)438 , 1308. 332-7002. cation or his office lo One Office Park. Thaxton & Daniels announces lhat Eile en R. Malcom announces the Suite 413. Mobile.Alabama 36609. · Carl J. Roncaglione,Jr. has become an opening of her office at 209 S. Market VickieE. House. formerlywilh Veigas associateo r the firm. with officesat 1115 Street, Suite 215, Scottsboro. Alabama. & Cox, announces the opening of her Virginia Street, East, P.O. Box 313. The malling address is P.O. Box 924, office al l 00 W. Co liege Street, Charleston,W esl Virginia 25321. He is a Scottsboro 35768. Phone (205) 259- Columbiana, Alabama. The mailing 1992ad mittee to the AlabamaSta te Bar. 3500. address is P.O.Box 1871, Columbiana Verner, Liipfert. Bemhard, McPher Millon E. Yarbrough, Jr. announces 35051.Phone (205)669 -1000. son & Hand announces that Kathy o. that he has formed the Yarbrough Law Lateefah Muhammad announces the Smith has become associated with Firm with offices in the Creal Oaks opening of her office al 204A S. Elm the firm in the Washington,O.C. office. Office Building, 4956 Broad Street, Street, RussellPlaza, Tuskegee, Alabama The firm also has offices in McLean. Mooresvillt, Alabama 35649. Phone 36083.Phone 1205)727-1997. Virginia and Houston, Texas. She is (205)350-2252. a 1987 admittee to the Alabama State Douglas W. Ingram announces lhe Bar. relocation of his office to 2244 Center AMONG FIRMS Centnl Bank of the South announces Point Road, Suite IOI. Birmingham. that Daniel B. Craves has been promot Alabama 35215. Phone (205)853-8081. ed to assoc1Megeneral counsel for the Thomas Ryan,Jr. announces lhe relo Boyd & Femambucq announces that bank and ils artiliates. Craves joined cat ion of his offices to 22 1 East Side Randall W. Nichols has become a part· Central Bank in 1991 as senior legal Square, Suite l·A, Huntsville, Alabama ner and lhe firm name has been changed coua,sel. 35801. The mniling address is P.O. Box to Boyd.Femntnbucq & Nichols. Offices Wilson, Pumroy & Turner announces 18654, I luntsville 35804. Phone (205) are locatedal 280I UniversityBoulevard, lhat George D. Robinson has become a 533·l 103. Suite 302. Birmingham,A labama 35233. partner. Offices are located at 1431 Clayton T. Sweeney announces the Phone (205)930-9000. Leighton Avenue, Anniston. Alabama opening of his office at Mountain Brook Clark. Scott & Sullivan announces 36201.Phone 1205)236-4222. Center. 2700 llighway 280 East. Suite that Jeffrey L. Luther has become a Parnell. Crum & Anderson an lSOE. Birmingham, Alabama 35223. partner in the firm. The firm hasoffices nounces that Robert J. Russell, Jr .. for Phone (205)871-8855. in Nobile and Birmingham, Alabama mer prosecutor for the Montgomery Marie0. Mullins announces the open and Jackson.Mississippi. County Oislrict Attorney's Ofrice, has ing of his office at 880 $. Lawrence Hens ley. Bradley & Roberlson become associatedwith the firm. Offices Street, Montgomery, Alabama 36104. announces that Ralph K. St-rawn. Jr. are located at 641 S. Lawrence Street. The mailing address is P.O. Box 141. has become a member of the firm. and Montgomery.Alabama 36104. Montgomery 36101. Phone (205) 834· that Kimberly H. Skipper has become an Cherry, Givens, Peters, Lockett & 8070. associate with the firm, with offices at Diaz announces that Jay I) . Williams, Anne n. Strickland announces the 754 Chestnut Street, Gadsden, Alabama Jr. has become a member of lhe firm. THEALABAMA LAWYE ll JULY1993 / 223 He will practice in the Mobile office, Phone (205) 322-8684. Avenue, Montgomery, Alabama36104- located at 401 Church Street, Mobile, Morri s, Smith, Cloud. Fees & 4045. Phone (205)241-8000. Alabama 36633.Phone (205)432-3700. Conchin announces that ~laureen G. William A. Catoe, Jr. announces the Burr & Fonnan annow1ces that John Kelley has become associated with the associat ion of Vera Smith Hollings T. Mooresmith has joined the firm. He firm. Offices are located at 521 Madison worth, with offices at 211 Lee Street, previously served as general counsel for Street, Second Floor, Huntsville, Alaba N.E., Suite B, Decatur. ,\labama 35601. the Medical Associationof the State or ma 35801. Phone (205)534-0065. Phone (205) 351-0777. Alabama. Carraway Hospitals of Alabama Berkowitz, Lefkovits,Isom & Kushn Martin, Drummond , Woosley & announce that William 0. Wise, former er announces that Thomas O. Kolb has Palmer announces that R.E. Rawson, associate counsel with Carraway since become a member. Offices are located Jr. has joined the firm, and that the firm 1978, has been promoted to general at 1600 SouthTrust Tower, Birming has relocated lo 2204 Lakeshore Drive. counsel and appointed vice-president or ham, Alabama 35203. Phone (205) 328- Suite 130, Lakeshore Park Plaza, Birm legal affairs. Officesare located in Car 0480. ingham, Alabama 35209. Phone (205) raway Methodist Medical Center, 1600 Barnett, Noble & Hanes announces 802-1100. N. 26th Street, Birmingham, Alabama that Frederick M. Garfieldh as become a Bryant , Blacksher & Lester 35234. Phone (205)226-6298 . member. Officesare locateda t 1600 City announces that W. Eugene Howard, Ill Richard I. Lehr, David J. Middle Federal Building, Birmingham, Alabama has joined the firm. Officesare located brooks, R. David Proctor , Albert L. 35203. Phone (205) 322-0471. at Riverview Pla11aO ffice Tower. 63 S. Vreeland, II and Brent L. Crumpton Balch & Bingham announces that C. Royal Street, Suite 1107, Mobile, Alaba announce the formation of Lehr, Mid Paige Williams has become associated ma 36602.Phone (205)432-4671. dlebrooks & Proctor. Officesa re located with the firm, in the Binningham office. Robert 8. Crumpton, Jr., Thomas C. al 2021 Third Avenue.N orth. Suite 300. She is a grad uate of Vanderbilt McGregor, Jame s E. Davis, Jr. and Birmingham , Alabama 35203. Phone University and Georgetown University John T. Alley. Jr. announce the forma (205)326-3002. LawCenter. tion or Crumpton, McGregor, Davis & Najjar Oenaburg announces that Hub Sandra K. Jlleadows and Alice M. Alley, with offices located at Interstate Harrington has joined the rirm. Offices Meadows of ~lcadows & Meadows Park Center, 2000 Interstate Park Drive, are localed al 2125 Morris Avenue. announce the relocation of their offices Suite 100, Montgomery, Alabama36 109. Birmingham, Alabama 35203. Phone to 60 S. Conception Stree t, Mobile, The mailing address is P.O. Box23 1208, (205)250-8400 . Alabama 36602. The mailing address is Montgomery 36123-1208. Phone (205) C. Knox Mclaney, ll.l announces thal P.O. Box 985, Mobile 3660 1. Phone 270-3176. T. Eric Ponder, formerly of Williams, (205) 432-2808. Williams & Ledbetter announces Hammon & Hardegree, has become Hamilton, Butler. Riddick, Tarlton & the relocation of its offices Lo 2 140 associated with the firm. Officesremain Sullivan announces that Richard E. Eleventh Avenue,South. Suite 410, The at 622 S. Hull St reet, Montgo mery, Corrigan has become a member of the Park Building. Birmingham, Alabama Alabama36103. Phone (205)265-1282. firm. Officesare located at 10th Floor, 35205. Capell, Howard, Knabe & Cobbs l'irst National Bank Building, Mobile, Golden & Golden announces the relo announces that Clement Clay Torbert, Alabama. The mailing address is P.O. cation of its offices to 317 20th Street, Lil has become an associate with the Box 1743. Mobile 36633. Phone (205) North, Birmingham, Alabama 35203. firm. Offices are located al 57 Adams 432-7517. • SERVICE OF PROCESS NOTICE STATE OF ALABAMA ATTENTIONATTORNEYS BASE CHARGE 24-Hour Process Service s2500 BASE CHARGE SERVICE IS GUARANTEED includes 3 atlempts. Location Fee charged If address is If not served, NO BASEC HARGEI s Invoiced. The Location lncorrec1.and subJecl can be found. Location Fee onlyS35.00 Fee and/or Special Handling Fees may apply. per hour, minimum $35.00first hour, per individual located. BILLING Special Handling Fee may apply on rush service, or when Can be siructuredo n weekly, bi-monlhly, or monthlyb asis. Fee special inslructions are requested, for only $15.00 extra. Schedule, Bond Documentation and Resumes available. MULTIPLESERVICE OF PROCESS DISCOUNTS FOR MORE INFORMATION 20% Discounton base charge lor 10or morepapers assigned CONTACT In a given week. 25% Discounton Base Chargefor 25 or more HARRYW . BACHUS, JR. papers assigned In a given week. 205/649-5984 Office: 205/649- 5984 Bachus & Associates P.O. Box 180066 =::m Mobile, Alabama Fa.'C: 205/649-5886 Dig-Pager: 460-1888 PROCESS SERVICE 6- lNVBSTIGA.TlONS 36618-0066 224 / JULY1 993 THE ALABAMALAWYER YOUNGLAWYERS' SECTION By SIDNEY W.JACKSON, /fJ , president SANDESTINSEMINAR A SUCCESS he annual YLS Seminar on precipitated incalculable mental and non-coping behavior, such as tardiness. the Gulf at Sandest,n was a physiologicalstress on otherwise normal frequent or unexpectedabsences, or wide I] resounding success.Q\oer 230 and healthy individuab who were never moodswings, over a periodof time. Then, attendees enjoyed one of U1e created to handle such unrelenting after a more extendedtime period, acute finest programsasse mbled.The attendees demands and pressures . In too many problems develop. These include inappro also Included lawyers from Tennessee, Instances. individuals have sought refuge priate dress. failure to keep appointments Georgiaand Florida. Wewere V1?ryfor lu· and escape from these oppressive and or relum phone calls, and a senseo f Isola nate to ha\11?perfect weather all three days consuming pressures by overindulgence tion fromo ther la1vyersand peers. and the golf, tennis, beach activitiesand in alcoholic beverages or the more I low do you deal with stress without cocktail parties were superb. Frank destructive alternative of drugs. " crawling into a bottle or doing drugs? Woodson.Judson Wellsand CordonAnn· One way that has been suggested is strong of Mobile.along with BarryRags to develop a regular exercise program. dale and Hal Westof Binningham,put a Studies show that a regular exercisepro tremendous amount of work. effort and gram will help reduce stress and help a expertise into this seminar. Watch person cope with the effects of stress. upcomingissues of The Alabama Lawyer Some law firms give their lawyers mem for detailson next year's seminar. berships in health clubs or provide"'O rk· Spring bar admissions out areas. Other firms promote social ceremony e\'ents which im'Ol\'ephysica l exercisefor AndyBirchfield or Montgomerywns in their employees. chargeof lhe spring bar admissionsct.rt Al a meeting I attended in Florida, I mony held May 25. Attorney Central learned of several programs that have Jimmy E\'ans addressedthe attendees al appeared nationwide to help the profes· the luncheon. One hundred fifty-seven sional deal with stress. One program ls personswe re admittedto practice. known as LAP, l..awyer Assistance Pro grams. Traditionally, law firms ha\11?been "Sink the Battleship " party Sidney w. Ja c kson, Ill reluctant to get into the human resources planned July 15, 1993 area. Once an attorney started off the The YLSwill co-sponsor a "Sink the deep end. the normal procedure was to Battleship" party on the USS Alabama Obviously. stress and its demands on cOV1?rup the problems,put him in a cor July 15 during the state bar's annual youngla\,.;oers do not ha\'e lO lead to alco ner and hope he would quit . This is meeting in Mobile. The party will last hol or drug abuse. In reality,the statistics changingU,rough LAP programs. from 8 p.m. until midnight. Tickets are Indicatethat more and more lawyersare. Another program is the LCL or $10 each and may be purchasedthrough in fact,heading in that direction. Lawyers'Concern f or Lawyers.This group the stale bar registration or at the door. Accordingl o AmericanBar Association ls composed entirely of lawyers in alcohol Refreshments will be included in the statistics, 20 percent of lhe lawyers in Uiis or drug recovery.I t is similar to M which price or admission. ·'The Tip Tops" will country are affectedin some manner and supposedly works because nobody can provide musical entertainment, compli to some degree by substance abuse. If help an alcoholic like another alcoholic ments of Jackson.Taylor & Martino. these figuresare accurate (theyare proba 1~hohas been there. Applying this to Dealing with stress bly low), then the individuals who are lawyers.who \\'OUldbetter understandthe I once heard a state bar officialexplain affectedand the publicto whom they O\\'e problems of an impaired lawyer burned slress as follows: their servict.smust deal more effectively out and under stress than another la\\)'eT "The conceptsor incrediblenumbers or with the stress. who has been through the same thing? hours of workweekafter workweek.profit Those who study the matter say that Concerned lawyers and law firms center productivity, and Increasing coping problems do not manifest them should get involved with promoting pro· demand ror excellence in work produce selV1?soV1?m ighL In fact, the 0V1?r-extend grams such as those discussed above for and producing a result at any cost has ed lawyerbeg ins to exhibit small signs of the betterment of our profession. • THE ALABAMALAWYER JULY1993 / 225 ..·r ' ,t Cumberland School of Law The Cumberland School of Law or Samford University is indebted to the many Alabama attorneys and judges who contributed their time and expertise to planning and speaking at our continuing legal Andrew C. Allen Birmio1bam Anneue C. Dodd Birmingham K. Rick Alvis Birmlnah•m Suson D. Dou&hton Bianingham David B. Anderson Birmingham J. David Drt$her Birmingham Ann Z. Arnold Birmingham Michael L. Edwards Birmingham D. Leon Ashford Bimlin&hnm Mork H. Eloviu Birmingham Lee E. Bains, Jr. Bimlln~ham Bruce P. Ely Tuscaloosa Jere L. Beasley Montgomery Jesse P. Evuns, Ill Birmingham Lee R. Benton Birmln&bam D. Taylor Flowers Ootlmn T. Brad Bishop Birmln&ham So.muel H. Franklin Birmingham Ollie L. Blan, Jr. 13innin&ham S1l1ar1J. Fren11 Birmingham Duncan B. Blair Birmin&ham Chari._ W. Oambtc Tuscaloosa MiebJlel F. Bolin 13irminiJ,am T unolhy C. O•nn Binningh1m Klll'on0. Bowdre Birmingl,Am Jomes S. Clam:tt Birmingham William M. Bowen, Jr. Montsomery Uoyd W. O•lhinp Birmingh111l Midloel A. Bownes Montsomcry Ba,lhfl . Ocrwln Birmingham Robert C. Boyce Homewood Jolin D. Oodbold Montgomery W. Marcus Brakefield Tuscaloosa Connie L. 01,w Huntsville Albert P. Brewer Blrminih•m Terry w. Oloor llinningb•m Arlhur B. Briskman Mobile C. Robcr1 Ooulleb, Jr. Mobile Richard J. Brockman Binninahnn, Pntrick H. Ornvcs, Jr. Huntsville J.R . Brooks, Jr. Huntsville Mnc B. Orenves Birmingham Joseph M. Brown, Jr. Mobile Pnul W. Greene Hu_ntsvillc S. Oreg Burge Oirmlni;ham Dwight M. Oroas, Jr. Andalusia Frank 0. Burge, Jr. Birmingham W. McCollum H•loomb Birmingham William 0. Butler, LU Birmingham James 0. Haley Birmingham Bradley R. Bymo Mobile William L, Hanbcry Floreoce Alva C. Caine BirmloiJ,am Willis.m K. Hancock Birmingham Jock D. Cati Birmin&ham Fnmcis H. Hare, Jr. Birmingham Charles F. Carr Oim1i11cJ,am Lynn Elheridic Hare Binninghluu D>vis Carr Mobile Robert H. Harris Decatur Andrew T. Citrin Mobile Lyman H. Horris Birmingham WUJinmN . Clarlc Binnin&h•m Jock H. Harrison Hoover- Chules Cleveland Birmin&ham Llnd:t W, H. Hcndcm>n Tuskegee PaLric.ia.Clot(elte.r Birminghom Henry T. Henzel Birmingham Fred L. Coffey, Jr. HuntJvillc Robert M. HIii, Jr. Florence Benjamin 0. Cohen Oinninahnm Richard L. Holmes Montgomery Charles D. Cole Binnio:bnm Alex L. Hohsford, Jr. Montgomery John J. Coleman, Ill Birrninv.hnzn Jock B. Hood Birmingham Lori S. Collier Ooth,tn Kayo K. Houser Birmingham Betsy Pi,lmer Collins Birmingham J. Gorman Houston. Jr. Montgomery Walter M. Cook, Jr. Moblie Robert A, Huffaker Montgomery Reggie Copeland, Jr. Mobile Lawrence W, lonnottl Birmingham DeaneK . Corliss Birmingham Kenneth F. ln(t'llm Montgomery Robert T. Cunningham, Jr. Mobile AlCJ 226 /JULY J 993 TliE ALABAMALAWYER Continuing Legal Education educationseminars during the 1992-93academic yea,. We gratefully acknowl.edgethe contributions of the following individuals to the successof our CLE programs. Larry H. Koener Gadsden Oscar M. Price, m Blrminaham Patricia K. KolJey Montgomery Donald R. Rhea GadJiden Victor Kelley Birmingham Wanda M. Rabren Andalusia Mnrlc H. Kc11nedy Montgomery Michael V. Rasmussen Bim1inghnm M. Christion Kina Birmingham W, Boyd Reeves Bim,inchnm John T. Kirk Montgomery J. William Rose, Jr. Birn1ingham Forrest S. utlJI Mobile S. Shay Samples Birmingh•m John N. t.e,,ch, Jr. Mobile Jerry W. Schoel Birmlnaham Stu•rt Lcocb Birmingham Jacquelyn S. Sll11ia Birminaham A. Tennent Lee,, Ill Runtsville James R. Seale Mnnt1omery Robert W. Loe, Jr. Birmingham Terry A. Sides Montaomery Ronald A. Levin Birmingham Kcnnetb 0. Simon Birminib•m Warren B. Uabtfoot Birmingham Wilbur 0. Silbennu Birmingham Curtis 0. Liles Bianingham Nanette Sims BirmioiJ,am Jack U•inpton Scot1Sbot0 James S. Sledge Annil!On Dcbn Lewis LA>ard Montgomery DeborahAlley Smith Birmins),llm James S. Uoyd Birmingham l. Jaw.u, Smitb Hunuvillc Roger L. Lucas Birmingham William Wayne Smith Bin11inaban1 Michael 8. Maddox Birmingham Richard E. Smith Birrnlneham Patricio T. Mundt Binuinghnm Gary O. SIJlnko Annlrton David H. Mor,b Birmingham C..rol H. Stewart Birmlnllhnm Eugcno D. Mnrtcnsan Birmingham Chorles D. Stewart Bir1nin;.hani Rodnoy A. Mox Birmingham William B. Stewnn Birrnin1b11m W111iamH. McOtrmon Mobile Euccne P. Stutts Birmin&hnm Bruad . McKc:e Birmingham Mlch•el M. SulliYDD Huntsville J. Anthony McLain Montgomery famts A. T•ylor , Jr. BirrninaJ>•m E. Ann McMahon Birmingham Oco,ce M. Taylor, III Birmlniham Ookley W. Melton, Jr. Momgomery Cooper C. Thurber Mobile Toay Q. Miller Birmingham Ocorse H. Traw;ck Ariton Aru1c W, Mitchell Birmingham W. Terry T111vis Moo,iomory Taman 0 . Mitchell Birmingham W111iomL . UISCy Butler Bryan E. Mo11an Enterprise Rnbe11J. Veal BirmiaaJ,Am Mi~hael D. Mulvaney Birmingham Charlie O. Waldrep Birrnln&hm Willium R. Myer, Birmingham Kenneth 0 . W.Uis Montgomery P. Russel Myles Mobile Robon C. Walthall Blrmlni:hom Ocorgo M. Neal, Jr. Birmingham Howurd P. Walthall Bim1in;hnm Leonard J. Nelson, 111 Birmingham Williom W. Watts, Ill Mobllo Bert S. Nonie, Binningbam Leonard Wertheimer, UJ Bim,ingham Herbert M. Nowell, Ill Tuscaloosa Jere P. While, Jr. Bim,inuhom Tabor R. Novo)(, Jr. Montgomery James D. Whitmire O.Xn1ur R;chard F. 0Jlc Birmingham John P. Whittington Birmlnghlllll Caine O'Rear, Ill Mobile Charles S. Willoughby Mobile Barbana F. Olldtocr Birmioghwn Oo;vidG . Wirtes, Jr. Mobile Alton B. Pllrkcr, Jr. Birmingham Wi!Usm C. Wood, Jr. Birmingham Jackson M. Payne Birmingham J, OU$1yYearout Birmingham A. R. Powell, m Andalusia Tho mu T. Zieman Mobile ThomASM . Powell Birmingham Ali~ H. Pntet Birmingham ~ .... ~ .;.:.,_..} ·. ~ ' ~ . ' THEALABAMA LAWYER JULY 1993/ 227 BUILDINGALABAMA'S COURTHOUSES MOBILE COUNTY COURTHOUSE By SAMUElA. RUMORE,JN. The following continues a history of Alabama's county courthous es-their origins and some of the people who contributed to their growth. The Alabama lawyer plans to run one county's story in each issue of the mag azine. ff you have any photographs of early or present courthouses, please for ward them to: Samuel A. Numore, Jr., Miglionico & Rumore, 1230 Brown Marx Tower, Birmingham, Alabama 35203 MOBILE COUNTY he history of Mobile County is the richest of any county in Alabama, predating the existence of the state by al II300 P,l!S(!11/J'.fobil e County Courthouse.19.59 least years. The first documented explorers, the Spanish sailors under Alonso AlvarezPineda, visited the area sailed into the bay in 1559. The fort was named in honor of King in 1519, more than 100 years beforethe Despite the early Spanish explo Louis XN of France. The site was near Pilgrimslanded at PlymouthRock. L eg rations, the first permanent settlement the territory of the MobileI ndians. Due end suggests that a Welsh prince. at Mobile was French. 1'he Gulf Coast to nooding and poor defenses, the Madoc, may have entered Mobile Bayas was opened to French colonization by l'rench abandonedthe site of Old Mobile early as the 12th Century. Since Madoc the exploits of LaSalle, who claimed the in 1711 and removed the fort to what is may be only a myth, most historians MississippiRiver and the surrounding now the location of present-dayMobile . credit the Spanishas the first Europeans territory for France in 1682. Today's MobileCounty Courthouse sits to explorethe area. 1'he first French governors were the on Lhe exact site of that relocated forl Pinedaand his men did not attempt a LeMoyne brothers, Pierre, known as The fort remained the l'rench capital settlement, but only visited Indian vil Iberville, and Jean Baptiste, known as until 1719 when it was transferred back lages and mapped out the coastline. Bienville. They established their first to Biloxi and then three years later Other Spanish expeditions arrived over capital at Fort Maurepas in Old Biloxi. movedto NewOrleans. the years. In 1528, Panfilo de Narvaez present-dayOcean Springs, Mississippi, In 1763, followingU1e Peace Treaty of sought gold. In 1540, DeSoto's army in 1699. Later, in 1702, they movedthe Paris, which ended the l'rench and Indi marchedt hrough Alabamaand probably capita l of French Louisiana to l'ort an War,Mobile came under British rule. came within 75 miles of Mobile. In Louis de la Mobile, on the west bank of On October20, 1763. the rrench surren 1558, Guido de Las Bazares explored the Mobile River. approximately 27 dered the fort, then calledl 'ort Conde,to MobileBay and historians believe that miles north of the river's mouth. This the British who renamed it Fort Char another conquistador. Tristan de Luna, location is knowntoday as 27 MileBluff. lotte in honor of their youngqueen . 228 /JULY 1993 THEALABAMA LAWYER The British occupationwas very brief. law passed In 1818authorizing the con During the American Revolution, a struction or a new jail and courthouse Spanish force allied to the Colonials for costs not to exceed S15,000. captured Fort Charlotte on March 14. Althoughplans 1>ue made, no construc 1780. In the Peace Treaty of Paris of tion t.ook placefor a number of years. 1783. Spain received all British lands In the meantime. courts continued to east of the MississippiRiver and south of be held in rented locations,such as the the 31st parallel of latitude. including houses owned by Richard Tankersley Mobile.Thus , the home country of the and Catalina Mottus. A receipt in the nrst explorers in the area now held county archives states that Catalina sovereignty. Moltuswas paid S260fo r use of a house At first, the Spanish encouraged located on Government Street for the American immig ration. Americans holding of court during 1822a nd 1823. moved lnlo the Spanish terr itory in Ultimately, Mobile County entered increasingnumbers. Soon, however, the into a contract ror its first formal court Spanish recognizedthe Americanthreat house facility. The contract price was Thin/co111,1v courJ/iouR, 1/113 to Mobile and sought to limit American $13,000.The architect and builder was Sourer.NolJl/t: TM Ntt» Sooth, 1887-88 incursions. Peter llobart. This contract still exists 1Jnirent1vof Sooth AJa/Jomomiu,,a In 1800. Spain was forced by and provides a detailed description of Napoleon to reconvey the Province or the structure. It was a two-storyrectan Louisianal o France. In 1803, Napoleon gular brick building constructed in the sold Louisianato the UnitedStates. Fol Neoclassicalstyle. The building had a lowing the LouisianaPurchase, a ques portico supported by large two-story tion arose over title to the Gulf Coast columns. The main noor contained a territories . Spain contended that central room that was 42 feet long. Vari Louisianawa s only the territory west of ous offices nanked either side of the the MississippiRiver. The U.S. insisted room. The princ ipal courtroom was that the traditiona l designation of localed on the second noor. ll was 58 Louisianaextended to lhe PerdidoRiver . reel long. The courthouse was erected the present-di!yboundary b etweenBald on the southwest corner of Royaland win County. Alabama and Florida. The Governments treets, the location of the terms of conveyancewere vague so the old fort which had been lorn downyears U.S. did not formallypress the issue al before. that time. Historiansare not certain o( the exact By 1812, the U.S. was again at war completiondate for this courthouse,but with Britain. The Spanish allowed the Fourth cou111ycour1ho THEAI..ABA MAI..AWYER JULY1993 / 229 ings, groined vaults in the courtroom columns. It contained a second-story men! and Church streets, behind the and vestibules, and a hot air furnace balcony. On top of its brick-filled pedi courthouse site. Within 60 days, plans with cast iron conductors set in the ment sat a stone statue of Justice. All of were submitted for another courthouse. double-brick walls. This beautiful and the windows had rounded to ps and On March 26, 1888,the county signed a well-built structure fell victim to the stone sills. contract wilh architect Rudolph Benz. same fate as its predecessor.On January This structure was soundly built and On Jul y 2. 1888, contractor Louis 31, 1864 it was destroyed by a fire due should have served Mobile for a long Monin won the right to re-build the to a defective chimney nue. Fortunate time. Whether due to a lack of funds or courthouse for $60,763. ly, the county records were saved. as an added precaution against fire, no Work progressed rapidly on this Becauseof financial problems during furnace was installed in this building. fourth officia l courthouse and the the Reconstru ction Period after the However, it did contain fireplaces. building was completed July 9, 1889. Civil War, a third courthouse could nol Unfortunately, tragedy struck the The structure was built on the existing be built for many years. ln this interim Mobile County Courthouse again. Just foundation, and it retained a basic tern- period. the courts were moved to the 1842 Hagan Building located on the north side of Conti between Royal and Water streets. In March 1869, an additional lot behind the original courthouse proper ty was purchased for future use. And in April 1869, the county approved a con tract lo remove tbe remafoing rubble from the property where the court· house had burned fiveyears previously. In July 1872, advertise ments announced that bids would be received for a new courthouse buildin g. In September, bonds were approved for Architects drawingof presentMobile County Courthouse construction. On October 11 1872, the NobileCo,mtg Courthouse Ann,x 1978.&.ill around/he historicU!VeJ'I House county entered into a contract with as in 1851 and 1864, this courthouse Thehistori c LevertHouse, h ome of /tfobileBar W.O. Pond for the design and specifica burned on January 20, 1888. Seven fire Association tions of a new courtho use. Charles companies responded to the morning Fricke received the construction con· alarm bul the flames spread quickly tract for SlO1,000. T he contract called across the second floor ceiling and soon pie plan. However, the facade was sub for completion of the courthouse by the roof collapsed. The statue of Justice stantially changed. Instead of central October I, 1873. crashed onto GovernmentStreet. Luck steps, th is cou rthouse had two side The new courthouse was built on the ily, the first floor records were saved, stairways. The balcony was removed. site or its two predecessors, and many or but the law library on the second noor The six columns were reduced to four. the architectural elements in the for was largely losL The bricked-in pediment now contained mer courthouses were maintained. The Within a week, county officials met a relief sculpture of two eagles and the structure was Neoclassical and mea with the insurors, and the loss was set coat or arms or the State or Alabama. sured 81 feel by 146 feet. The front por· tle d. In lhe meantime, the courts Though the bui lding remaine d of tico was 13 feet deep, and the structure moved to the Royal Street Hotel on the classical design, the roof was clearly was supported by six flute d Ionic west side of Royal, between Govern- Victorian. Statuary abounded. Above 230 I JULY1993 THE ALABAMALA WYER U1ep ediment were three allegorical fig the exterior. Courtrooms contain sym Houston, Texas, in association with ures representing Law, Unity and Wis bolic works of art and the building is Frederick Woodsof Mobile. Construc dom. Winged griffinsgraced either end replete with mura ls, quotations and tion manager for the $58 million pro or the pediment. Other statues and sculptures. ject is the Hardin/HastonJ oint Venture. finials surrounded the roof itself. Cor In 1977- 78, a courthouse annex was This building is one of the most excit ner towers of elaborateVic torian design added. Laraway & Crider, Architects ing and futuristic public buildings ever and a central clock tower soared above prepared the plans and supervisedcon constructed in the State of Alabama. the structure. The smaller corner tow struction while Ray Sumlin Construc The designers have created a post-Mod ers were 94 feet high, and the larger tion Company, Inc. served as builder. ernistic 21st Century architecturalstyle. central tower climbed to 186 feet above Total cost was $1.6 million. It is signifi The two government buildings will be the city street. cant that the annex was built around connected by a ten-story cascadinga tri The hotel to the rear of the fourth the historic Levert House at 151 Gov um. Boldgeometric shapes will be used, courthouse, which itself had been used ernment Street which today houses the and U1em echanical and structural sys as a temporary courthouse, was torn MobileBar Association. tems will be exposed for emphasis. down in later years. A rear addition on The complex was originally planned the rormer site of th e hote l was to contain 22 circuit, district, domestic, attached and extended the courthouse municipal,and ceremonial courtrooms. to Church Street on the south. The Modificationsmay change that number. exterior of the enlarged courthouse was The County of Mobile will be owner and finished in stone at this time. Benz & landlord of the structure while the City Sons. Architects designed the addition of Mobilewill be a tenant and pay rent. and renovation. During the excavation for the project, Then, in September 1906, a powerful several historic sites were uncovered. hurricane struck Mobile. The court More than 150,000a rtifacts dating from house survivedwind and rain damage. French and even Indian times were dis· but its rooftop statuary and towers did covered. Archaeologists found coins not. The cour thouse was repaired Architect's ,node/,J.fobile CounJy /City Building minted in France as early as the 1720s. in 1907, but the roof no longer had Coutfesyof the ~tobile CountyCommiJ.S iott A permanent museum highlighting the statues and the rebuilt clock tower was archeological finds will be housed on greatly reduced in size. The smaller the lower level of the county building. corne r towers were permanently The sixth structure built to serve as a Security will be one or the key fea removed. courthouse was authorized in 1971 and tures of the complex.T here will be pri The Benz-designedco urthouse served completedin 1973. This separate court- vate entrances for court and support Mobile for almost 70 years . In the house serves as the Mobile County personnel. Prisoners will not be seen by 1950s, the county built a fifth court Youth Center and Juvenile Court. This the public except in the respective house on the same site. It was complet facility is located at 2315 Costarides courtrooms. ed in 1959. The architect was Cooper Street. The firm of Wood, Phelps & Ste The complex is expected to be com Van Antwerp, and the contractor was ber servedas architects. Ben M. Radcliff pleted in U1e ran of 1994. It should be DanielConstruct ion Companyor Birm was the contractor. The total cost for the subject of an updated article at that ingham and Dall as. The total cost of the this project was $3.5 million. time. building was $4,717,413. Unlike the Presently, a new Mobile County-City The author acknowledges the follow prior courthouse, most or the signifi. governmentco mplex is under construc ing printed sources: Mobile- The life cant ornamentation for th is building tion. A ceremony marking the start of and Times of a Great Southern City, by was located on the interior rather than construction on the 585,000-square Melton Mclaurin and MichaelThoma foot Government Plaza took place in son; From Fort to Port-An Archifec - December 199 l. The location or the 1u ral History of Mobile, Alabama, Samuel A. COlirthouse will be the site of the for 1711-1918, by Elizabeth Barrett Could; Rumore , Jra SamuelA. Rumore,J r. mer Greyhound Bus terminal, one and "Mobile County Courthouses", by isa graduateof lhe block west of the present courthouse on RaI ph C. Ho Iberg, Jr., The Alabama lkllvet"sityo4 Notre GovernmentStreet. lawyer, October 1979, p. 518-26. Dameand tno UnlversilY0, Alabama The design of the new structure was The author further acknowledges the SchOOlof Law. Ho chosen in a national design competition assistance of Judge Douglas Johnstone, servedas founding conducted under AlA standards (Ameri courth ouse project admin istrator chairpetsonol the AlabamaState Bar's can Institute of Architects).There were Clifton Lambert, Mobile Bar Association Familyl aw Section 195 entries. The jury consisted or seven Executive Director Barbara Rhodes, andIs In practiceio architects from throughout the coun archeologist Greg Spies, the University Bmnlngham withthe fi rm ol Mlg!lonico& Ru"'°'e. AIATIOtese rves os !hobar COO'\l'r.ssiooe,r forlhe 10lh try. The winni ng design came from of South AlabamaArchives , and Mobile Cireu!t,p!ace numbENlour. Harry Colemon and Mario Bolullo of attorney Lionel Williams. • THE ALABAMALAWYER JULY1993 / 231 The Alabama Limited Liability Company Act: A New Entity Choice by BRADLEYJ. SKLAR n May 17, 1993, Alabama's ver resembling a certificate of limited part the IRS institute d a study project Lo sion of the Limited Liability nership, wit h the appropriate state address the issue. O Company Act, Senate Bill No. authority. Under the act, the Articles of After six years of consideration. the 549, (hereinafter the "Act") passed the Organization are to be filed with the study project culminated in the release of Alabama Senate and House.' As of the local judge of probate's office similarly Rev. Rul. 88-76.' This key ruling held submission of this article, the act was to the way corporations and limited that an entity formed under Wyoming awaiting the signature of the Governor. part nersh ips are filed.' The internal law that had both limited liability and Assuming that the act is signed into law, operations of an LLCcan be governed by centraliied managementwou ld be treat it has an effective date of October l, an "Operating Agreement" that would ed as a partnership for federali ncome lax J 993. Alabama would become the 27th typically contain the same type of provi purposes. Several months later, an LLC state to join the growing number of sions as bylaws or a partnership agree formed under the l'loridastatu te received states authorizing use of this new type ment. Additionally, the LLC may be a private letter ruling to the same effect.' of entity. managed by designated "managers'' or The significance is that the I.RSh as by the members. and continues to rule that meeting only Introduction two of the four factors under the IRC History/Background Section 7701 classification regulations A limited liability company is a hybrid (centralized management,li mited liabili form of entity that providesthe possible The first state permitting organization ty, free transferabilityo f inter-ests,con ti combination of the beneficial tax status of an LLCwas Wyomingin 1977 in spe nuity of life) will result in partnership tax of a partnership with the limited liability cial interest legislation for an oil compa treatment. The Service recently issued offered by a corporate structure. The ny.' A similar statute was enacted in three additionalrevenue rulings holding entity is treated like a corporation for Plorida not long thereafter.' that Virginia,; Colorado' and Nevada' liability purposes, but, if properly struc In November 1980, the Internal Rev LLCswould be classifiedas partnerships tured . the entity will be treated as a enue Service issued a private letter rul for federaltax purposes. partnership for federal income tax pur ing classifying the LLC formed under poses.Th is means that the "best of both the Wyoming Act as a partnership for Recent statutory activity worlds" is possible: pass-through taxa federal tax purposes. The Service, how tion and no liability exposure to the ever. also issued proposed regulations ln 1990, as a result of Rev.Rul. 88-76, owners. under Section 7701 of the Internal Rev Colorado" and Kansas" becamet he third Passage of the act means that Alaba enue Code of 1986. as amended ("IRC" and fourth states to enact LLCle gislation. ma practitioners must become familiar or "Code")that would have denied part In 1991, four states, Utah." Virginia," with the terminology associated with nership classification to any entity in Texas,"and Nevada", enacted statutes, this new busi ness entity. An LLC is which no member had personal liability and last year, Arizona," Delaware,n llli owned by "members" instead of share for the entity's debts. Afterquite a bit of nois," Iowa," Louisiana," Maryland," holders or partners. An LLC is created negative commentary from practition Minnesota," Oklahoma." Rhode Island" by filing "art icles or organ ization," ers, the regulations were withdrawnand and West Virginia" all enacted statutes 232 / JUI, Y 1993 THEALABAMA LAWYER allowingthe organization of LLCs.Thus by at least two members and will not far, in 1993, Arkansas," Georgia;' Idaho," presentlype rmit one-memberLLCs. " Advantages over Michigan," Montana," New Mexico," other entities North Dakota", and South Dakota" have B. Articles passed legislation and two state.s. Indi The LLCis formedby filing"articles of A. Advantagesof UC ana" and Mississippi," have enacted organization" with the probate judge's overS Corporation statutes allowingthe registrationof for office containing certain basic informa eign LLCs.1\venty -eight states presently tion (including, but not limited to, the An LLC offers significant advantages recogni1..ethe LLC form with most of the name of the entity, the period of dura over an S corporation. UnlikeS corpora other states currently studying enact· tion, the purpose, the names and tions that Iimit the number of share ment of LLCleg islation. addressesof the initial members,and the holders to 35, there is no limit on the Locally, the Alabama Law Inst itute managers, if any)." The analogous part number of members of an LLC." Simi requestedthat the RevisedL imited Part nership document would be the certifi larly, there is no restricUonon the type nership Act Project AdvisoryComm ittee cate of limitedpartnership . or charac ter of members of an LLC. reconvene. The group began meeting Nonresident aliens, corporations, part· formallyin early 1991 and completeda C. Operatingagreement nersh ips and trusts may all own LLC working draft for submission to ALI in The membersmay enter into an agree interests. This relaxation of ownership February 1993. Bills were introduced ment, referred to as an "operatingagree criteria is probably the single most into the state Senate" and House" on ment," which sets forth greater detail important difference which causes a March 18, 1993 and March 25, 1993, regarding operation of the LLCand the preferencefor LLCs over S corporations respect ively, and final approval was relationship of the members to each and has sparked heavy interest in LLCs achievedin the House May17, 1993, the other. .. This type of agreement is analo for use by foreign investors and corpo last dayof the regular legislative session. gous to a partnershipagreement and can rate joint venturers. In addition, an LLC be a very important component in pro can own 100 percent of the stock of another corporation, whereas an S cor Basic LLC terminology viding the desired nexibility in an LLC formation. porationcannot be a memberof an affili Althoughthere exists a draft form of a ated group." Ownership ofsub-sidiaries prototypeLLC act and a versionfrom the D. Interests by LLCsis particularly useful if the LLC Commissionerson UniformState Laws, Membershave "interests" in an LLC, will be operating i.n a state that does not each state has adopted its own unique just as partners have "interests " in a currently recognizeLLCs. statute, many of which differ materially partnership. Shares of stock are not ordi· BecauseLLCs ma y be treated as part from the model acts. All of the statutes narily issued but the new statute pro nerships for tax purposes, the members combine characteristics of partnerships vides that certificates representing the of an LLC enjoy a variety of tax advan and corporations. The acts draw upon interesl~can be issued, if desired." tages not available to S corpora tion the Revised Uniform Limited Partner shareholders. The transfer of appreciated ship Act with provisions borrowedfrom E, /lfanagement assets to the LLC in exchange for an the RevisedMode l Business Corp0ration The Act provides that the members interest in the LLC can be nontaxable Act added to deal with issues that result can either designate "managers" or under rRCSection 721 unless liabilities from the absence of a general partner. reservemanagement to themselves." associatedwi th the transferred property Our act is no different.We have tried to exceedbas is. In addition, the subsequent pull the favorable components from a F. Purposesand powers gain on the appreciated property con number of exist ing and proposed LLCsma y generally be organized for tributed, attr ibutable to appreciation statutes as well as coming up with provi any lawful purpose, altho ugh most beforethe transfer, may be allocatedback sions that are unique to Alabama. statutes, includingours , providea list of to the transferor. Contrastthis treatment To have an unders tanding of how standard powers of the LLC similar to with that of an S corporation.Unless the LLCsoperate. one must first grasp the our corporatepowers provisions ." transferor owns80 percent of an S COrpO· new terms being used nationwide. The ration, under [RC Section 351, the gain terminology, like the statutory drafting G. Governanceand finance on the appreciation will be recognized issues, also differssomewhat from state An LLC may be organizedin ways that upon transfer and the S corp0ration will to state. In Alabama, we havechosen the permit almost any economic and man allocate the gain on the subsequent sale more commonly used terms in drahing agement relationship that tl1emembers of the appreciated property proportion our statute. Some of the basic terms and wish. There may be preferred interests ately, thus creating a disproportionate their definitions are set forth below: and rights, special allocations or other allocationo f taxable income. forms of participation in the ownership A member's basis in his LLCin terest A. Members of the entity. These items would be set includes a share of the LLCsdebts . In An LLC is formed by two or more forth in an operating agree ment ." contrast, a shareholder in an S corpora "members." In some states, the statute Dependingupon how the entity is struc tion may not include in stock basis any permits one-memberLLCs , but. because tured, either the members or managers share of the S corporation's debt. LLCs. of the detrimental affect on partnership elected by the members have the power because they may be treated as partner tax status, our statute requiresformation to bind the entity. ships. can also take advantageof the hen- THE:ALABAMA LAWYER JULY19931 233 efilsa of n IR C Section 754 election. la.xation, but which will not require the apply the limited partner "per se" rule to When an LLCi nterest is transferred, the application of the S corporation rules. LLC members, because LLCs are transferee may step up Lhe basis of his This will likely create demand for LLCs. designed to permit active involvement by share of the LLC's property (the inside members in the management of the busi basis) to fair market value. Similarly, B. Advantages of an LLC over a ness and any assumption that LLCmem when an LLC makes a distrib ulion of limited partnership bers are likely to be merely passive property to a member, the LLC may step The key difference betweenp artnerships investors is incorrect. lf IRC Section up the adjusted basis of its property by and LLCs is that an LLC offers absolute 469(h)(2) is based on an assumption that the amount of gain recognized by the limited liabilityto its members whereas. those having limited liability do noL distributee-member. There is no coun in a partners hip, even a limited part partic ipate in the management of the terpart to U1e IRC Section 754 election nership, one partner (the general partner) business, it would clearly be a mistake to under subchapter S. When the S corpo has liability exposure.Al though this can apply this same rationale to LLCs. ration subsequently sells or distributes be mitigated by using a corporate general appreciated property, the transferee S partner. issues are alwaysrais ed regarding Tax issues relating to LLC shareholder will recognize his share of the net worth or capitalization of the gen classification as partnership the gain and will further increase his eral partner, the general partner's mini basis in stock only recognizing the loss mum interest in the partners hip, and The definitions of the terms "corpora as a capital loss upon liquidation. possible loss of pass-through taxation to tion" and "partnership" are contained in l,LCs also can specially allocate items the extent of the corporate general part l RC Section 770 l. The term "corpora of income, gain, loss, deduct ion, and ner's interesl In contrast, barring guaran tion" is defined to include associations, credit among its members provided the tees or other special arrangements, no joint stock companies, and insuran ce allocation meets the definitions for "sub member of an LLC has personal liability companies. In contrast, the term ''part stantial economic effect" under the !RC for the debts of the entity. nership" is largely defined in terms of Section 704(b) regulations. In contrast, Becauseit providesli mited liability to what it is noL IR C Section 770J (a)(2) if subchapter S corporat ions attempt all owners, an LLC U1at is classified as states that a partnership includes a syn provisions similar to special allocations, a partnership can also offer more desir dicate, group, pool, joint venture or they may violate the "one class of stock" able basis allocations than a limited part other unincorporated venture which is rule under [RC Section 1361. nershi p. rn a limited part nership, not, for purposes of the Code, a trus t, Finally. the mi es for S corporations all liabilities are allocated entirely to estate or corporation. have become extraordinarily complex and the general partners except (a) those Because the definitions in me Section contain many traps. LLCs present clients for which U,e limited partners are at risk 7701 are too broad lo be of use to practi with an alternative that cangive t hem the due to a personal guaranty and tioners, the Treasury Regulations under same limited liability and now-through (b) those tha t under state law al LRC Section 7701 providet he main tests low recourse only to partnership pro for classification of an entity." The regu perty, since genera l partners alone lations list si.x characteristics ordinarily •MEMORIALS• are perso nally liable . Contrast this found in pure corporations, two of which with LLCs in which all members have (associates and an objective to carry on limited liability and so all liabilities business and divide the gains therefrom) not persona lly guara nteed can be are common to both corporations and Paul W. Brunson allocated to all the members, th us partnerships and are ignored for pu11,os· Mobile more effectively sprea ding the allo cs of the LLCa nalysis. Admitied: l 939 cation for purposeso r basis. The classification or an entity as a cor Died: October 6, 1992 In addition, LLC members can partici poration depends on the presence or pate in management of the LLCwitho ut absence of U1e four corporate character ElizabethTacker E dwards risking their limited liability status. A istics or (a) limited liability. (b) continu Wetumpka limited partner participating in the day ity or life, (c) free trans ferability or Admilled: 1962 to-day management of the partnership interests, and (d) centralization of man Died: March 21, 1993 who may lose his status as a limited agement. In Rev. Rul. 88-76, the lRS partner. ruled U1at an entity organized under the AlfredK. Hagedorn This may also mean that LLCm embers Wyoming Act would be classified as a West Pain/, Georgia can participate in management for pur partnership for lax purposes because the Admilled: 1936 poses of the material participation tests entity possessed: Died: March 2, 1993 of the passive loss rules without losing l ) limited liabilityand their liability protection. Ta.xpayersare James A. Johnston 2) centralized management, still seekingcla rity on this issue because but it lacked: Pensacola, Florida IRC Section 469(h)(2)s tates that, "except Admilled: 1964 l ) continuity of lifeand as provided in regulations, limited part 2) free transferability of interests. Died: July 6, 1992 ners do not materially participate." The general belief is that it is inappropriate to (Continuedon page236 ) 234 / JULY1993 THE ALABAMALA WYER INSURANCE SPECIALISTS, INC. SUITE 135 2970 BRANDYWINE ROAD ATLANTA, GA 30341 404-458-8801 800-241-7753 FAX 404-458-7246 FACSIMILE TRANSMISSION COVER SHEET TO: AlabamaAttorneys , their employees,and depe ndants. FAX NUMBE R:------ FROM: InsuranceSpecialists. Inc DATE: NO. OF PAGES (INCLUDING COVER):~ --- MESSAGE: C re our M C II for a COVERAG E AGE MO. PREMIUM* MO. PREMIUM** SINGLE 26 $36.00 $28.00 SINGLE 30 $41.00 $34.00 INSURED & SPOUSE 30 $78.00 $61.00 INSURED & SPOUSE 35 $89.00 $69.00 FAMILY 35 $123.00 $94.00 INSURED & SPOUSE 40 $101.00 $79.00 INSURED & CHILDREN 40 $88.00 $70.00 FAMILY 40 $135.00 $104.00 ·ss,ooodeductible , 80120co-insurance to $5.000 -ss.ooodeduct ible, 50/50 co-Insuranceto $5,000 per calendar year per calendar year $2,000,000 lifetime maximum $2,000.000 lifetime maximum Our Major Medical plan is totally underwritten by CNA, which consistently receive s high ratings from A.M. Best company, Standard & Poors , Moody's and Duff & Phelps. The plan offers a choice of deductibles and co-insurance options for you, your staff, and eligible dependents. Please send me infonnation: Name.______[ ]Major Medical [ ]DisabilityIncome Addres,..______[ )LifeInsurance (Amoun ) City/State/Zip______[ ]BusinessOverhead [ ]Hospital Indemnity THE ALABAMA~WYER JULY1993 / 235 The Alabama Limited al least one member, such as a corporate of any other event that terminates the Liability Company Act: member, if two of the other corporate continued membership of a member, A New Entity Choice characteristics are considered more unless the business of the companywas essential to the enterprise but federalla.x continued by the consent of all the (Continuedfrom page 234) classification as a partnership is still remaining members. The contingency desired. It is unclear whether the IRS for continuation was great enough such Becauseof the necessityof maintain will take the view that such a personal that the entity was found to lack conti ing partnership treatment for tax pur assumptioncauses lhe LLCt o lack limit nuity of life. poses,t he classification issue is lhe most ed liability. If the service were to view impor tant consideration in form ing 2. Burdensome Nature-This type of personal assumptions this way, practi provision has been foll owed in most of LLCs.Therefore, tax practitioners draft tioners would have greater flexibilityin ing LLCsshould focuson the issues con the LLCstatutes enacted subsequent to structuring an LLCto qualifyas a part Wyoming's. Practically speaking , it cerning each of these characteristics as nership. imposesa significantburden upon LLCs. follow: If or when any of the enumerated events B. Dmtinuily of life occur, a unanimous vote of the remain A, Limif£d liability ing members is necessary to continue 1. ApprovedProvisions- Rev. Rul. 88- 1. Generally Lacking-Because of the the LLC.In LLCswilh many members, 76 held that an LLCformed under the the likelihoodof the event's occurrence nature of the LLCstatutes , which limit Wyoming statute lacked continuity of and the difficulty of obtaining unani each member's liability for the LLC's life becausethe statute provided that the mous consent to continue existencemay debts to the amount of the member's LLCwould be dissolvedupon the occur not be acceptable. In comparison with contribution lo the LLCcapital, it is gen· rence of any of the followingevents: (a) limited partnerships. only the event's erally assumed that an LLCwill possess when the periodfixed for the duration of occurrence with respect to the last the corporate characteristic of limited the company expired, (b) by the unani remaining general partner will trigger a liability. mous written consent or all the mem dissolution. 2. Effect of Personal Assumption of bers, or (c) by the death, retirement. 3. Tie Dissolution to One Member's Liability-In some instances it might be resignation, expulsion, bankruptcy, dis Status-Asa planning alternative, it may preferableto provide general liabilityfor solution of a member, or the occurrence be possiblefor an LLCto lack continuity of life even if only one of the listed events will cause a dissolution and even ir the occurrence of such event is tied to only a specifiedone 9f the mem bers. This would dramatically reduce the instances in which an agreement to continue is necessary. These issues are currently being discussed with LANDTECH86 the IRS, and it is expected that a Rev Real Estate Settlement System enue Procedure similar to Rev.Proc. 89- 12, which addressessimilar issues in the For Laseror Matrix Printers partnershiparea , wilI be forthcoming. 4. Majority Consent to Continue • HUD 1 Automa tic Calculatio ns Another way to potentially reduce the burden of this restriction would be to & • Checks Escrow Accounting lower U1e consent requirement for con • Word Processor - Spell Check tinuation from unanimity to majority, Policies & Commitments By comparison, with limited partner Deeds & Mortgages ships. majorityconsent to the election or • Data Base Reporting (SQL) a new general partner is accepted. • On Site Training Availab le 5. Pre-Agreement to Continue-The Florida statute contains a provisionthat $1,495.00 would permit the members to "pre agree'' to continue upon the occurrence of an event of dissolution.The IRS' view seems to be thal such pre-agreement LANDTECH would cause an LLCstil l to possesscon CORPORAT I ON (407) 833-0454 tinuity of life. 303Guaranty Build ing • 120 SouthOlive Avenue • WestPalm Beach,FL 33 401 6. Fixed Term Provisions- The Wyoming, Florida and Colorado statutes limit the life of all LI..Csto 30 years. No 236 /JULY 1993 THE ALABAMALA WYER ruling has addressed whether such a 4. Tie Substitution to One Member's incometax purposes. provision Is a necessary eJement of a Consent -Another way to make the sllltute in order for LLCsformed under it restriction less burdensome would be 3. Flexible Statutes -More recently enactedstatutes in other states applythe to lack continuityof life. IRSrepresenta to providethat transfer is subject to the same restrictions to LLCs,"unless pro tives have informally indicated that consent of a particular member, rather vided otherwise in lhe Articles although an LLCstatue should follow than a majorityor all of the other mem RULPAin requiring that one event of bers.This would be similar to the typical of Organizationor the OperatingAgree dissolution will be the expiration of a limitedpartnership in which the general ment " In these states, practitioners who vary from the general or "default" definedterm of years, the term need not partner must approvetransfers. be limited lo thirty years. Most of the rule, will assume the risk that their vari ation will not cause the LLC to fall on recently enacled statutes do not include D. Ce11trallredmo11ageme11t fixed term provisions and neither does the wrong side of the classification test. I, Regulatory Test-The classification the AlabamaSllllute. ~ In view o( llt S movement on some regulationshold that an organi1.ation has rules, the AlabamaDrafting Com mittee C. Preetro11sferabilitg centralized managementif any person or opted for a somewhat Oexible approach. group has continuing.excl usive authori a. Free Tra11sferabilitg-Sectfon 33(a) 1. Standard Provision-The IRSregula ty Lomake management decisions." or the acl provides the following tions provide that an organization pos 2. Application to LLCs-lo Rev. Rul. language:"ucept as olhen,~se provided sesseslhe corporatecharacteristic of free 88·76, the Wyoming LLC was held to in writing in an operatingagreement, an transferabilityif a member is able to sub have the corporate characteristicof cen assignee of an interest in an LLC may stitute another person for themselves tralized managementbecause only three become a member only if the other "wilhout the consentof other members." out o( 25 members were designated as members unanimouslyconsent." The regulationsprovide that in order for managers.Where management bas been the power of substitution to exist in the re5erved lo all the members.the IRShas b. Conti11uit11of life -Section37 or the corporate sense, the members must be held that the l,LC lacked centralized act providesthe followinglanguage: "An able, 1"ithout the consent of the other management ... Apart from these two LLCi s dissolved ... upon ... an event of members, to confer upon a substitute extreme situations, the proper analysis dissociationof a member unless ... the memberall of the attributes of his inter and result of other management situa legal e.~istence and business of the LLC est in the organization. ln Rev. Rul. 88- tions is unclear. ln the limited partner is continued by the written consent of all 76, the IRS held that the Wyoming LLC ship context, the msLakes th e view that the remaining members within 90 days lacked the corporate characteristic of managementis centralized if the general after the event or dissociationo r as oth free transferabilitybecause the consent partner has less lhan a 20 percent inter en;•iseslated in the articles or organiza of all members was requi red for an est in the venture." tion." assigneeof an interest Lobecome a sub stitutr memberin the LLC. 8. Proceduralissues Oth er iss ues relatedto classification 2. Fle.~ibilit)'-Unanimous conSenl of A . Stat, taxat/011 all members to substitution of new members is another restriction which I. Applicatlonof Rev. Proc. 89-12-ln I. State Income Tax-Most slates are could be burdensome to all but very Rev. Proc. 89, 12, the JRS set forth its following the federal example and are closely-held LLCs.Some state statutes standards for issuanceof a ruling that a treating LI.Csas partnerships for state give LLCs the right to reduce Lhis limited partnership will be lrealed as a income lax purposes.Wyoming and Col requirement by a provision in the arti partnership for federal income tax pur orado" treat Ll,Cs as partnerships for cles of organization or the operating poses. It is currently unclear whether stat e income tnx purp oses, as does agreemcnL. these ruling slnndards are being applied lo L.LCs. Manyof the standardsare diffi 3. Majority Consent-Similar to conti cult or inappropriate lo apply to LLCs. nuity of life, one way to make this requirement less burdensomewould be Alter recent conversationswith the rRS, to providefor a mere majorityto consent it is expectedtha t the Servicewill issuea Richard Wilson to substitute a new member. It parallel revenue procedureapplicable to is unclear whether the IRS would con LLCs. & Associates sider this level of consent sufficient 2. "Bulldproor · Statutes-The Wyom Registered to cause the LLCto lack free transfer ing statut.e is referredlo as a bulletproof ability of interesL However,precedent statute because it did not permit the Professional with respect to certain other types of membersto \'ill')' b)' agreement from the entities is encouraging.f'or example,the Court Reporters requirement of consent of the general restrictionson transferabilityof interests and continuity of life. Thus, any LLC I 7 Mildred Street partner lo substitution of a new limited Mon1gome_ry,Al abama 36107 partner ha~been considered a sufficient formed under Wyoming law will lack restriction lo cause transferabilityt o be these characteristics and will definitely lacking for limited partnerships. be treated as a partnership for federal 264 -6433 THEALABAMA LA\\IYER JULY1993 / 237 Virginia," Marylnnd"and North Caroli ognlzeit at all. The treatment selectedby to attain the limitations on liability, na.• Similar slllte tax results (no tax at each state will determine the rights or while avoiding the tax problems of C lhe entity level and income passes the entity and its members.Unfortunate corporations. through to lhe owners) can usually be ly, courts ha\" had a tendencyto charac Most. if not all, of the recent LLC attained by using a limited partnership terize unincorporatedentities as general enactments, including Arizona. Iowa, wilh a corporate general partner, an S partnershipswhen no other provisionof Utah, Kansas, Texas and Virginia,allow corporationor a C corporation(if it pass state lawseemed applicable. professionalsto use LLCs.Although in es all of its Incomethrough to its owners some states use of LLCsby professionals as salary or other deductiblepayments). Professionals appearedto be difficulton first consider The exception to the general rule is at ion, upon reflection short ly after l'lorida, which treats LLCsas corpora A. /11geueral enactment. they have reversed express tions for purpo.sesof applying the Florida Professionals long have practiced as prohibitions on the practice of profes corporate income tax. Plorida, however, sionals. has no st.ate Individuali ncome tax. partnerships, partly In order to obtain 2. Franchise Tax-If the analogy to tax beneOts.Despite th e risk of individu 8. Alabamastatute partnerships applies. no franchise tax a I liability for the firms debts, profes should apply to LLCs.At the lime of this sionals have cherished the financial The Alabama statute followed the article , thls issue was still being dis reward and status of making partner. same logic used when addressing prac cussedwith the AlabamaDepartment of Beginning in the early 1960s, in tice as a professionalcorporation. If the Rewnue. response to demands by professionals, State conditionsthe useof a professional many state and regulatorybodies devel corporation on certain requirements, 8. Transactionof business in states oped rules ror professionalassociations then the useof LLCsshould be likewise nol havillg limited liability rompang and corporations. By 1970. virtually all conditioned... In the powus provisions statutes states had adopted statutes or rules per· in our statute. the LLC is permitted to The abilityor LLCsto transact beyond milting professional corporations or render professionalservices but the enti their state of organization is still an open associations. ty is made subject to the same restric question. While several statutes provide Although they are permitted to prac tions as contained in the Professional that other states should recognize LLCs.'' tice in proressional corporations or asso CorporationAct. " there is sllll uncertaintyas to how readily ciations, and although there may be stales without LI.C statutes will recog benefits to operating a service business Conclusion nize the entity. In 1990. Indiana enacted as a C corporationunder the appropriate a provision requiring foreign LLCs to circumstances, many professionals con The information contained in this register wllh lhe secretary of state prior tinue to practiceas general partnerships. article is intended to be merely intro to transacting business in the state." One reason is that use of a C corporation ductory to this new entity that, by the Even if the limitations on the personal subjects the l'nlity to a second level of time this article is published.should be liability of the members are established taxation.and potentiallylo a higher tax part of the AlabamaCode with an effec under the law or the state in which an rate. This problem is not necessarily tive date of October I. 1993.There can LLCis organized,a question remainsas resolved by paying large salaries and be no question that limited liability to their liabilityunder the laws of states bon~. which reducethe incomeof the companies fill an important gap in the that do not yet haveLl ,C legislation. firm to zero because of issues concern alternate business forms available. To A state that has not adopted an LLC ing the reasonableness of compensation. the extent these entities provide the statute may treat an LLC as a general The risk or choosing partnerships has flexibility and integra ted taxation or partnership, may treal it as a foreign become i11creasingly clear to profession partnerships, combined with the busi incorporateden tity, or may refuseto rec- als. Therefore attorneys, accountants ness benefits or limited personal liabili and olher professionals have actively ty, they will likely be useful as a sought to use the LLC form in order to met-hod or conducting many forms or 8r•••r J. Sklar limit their liability for the negligence business.Necessary lo U1efurther devel Btlld ll)' J Sl 238 / JUl,Y 1993 THE ALABAMALAWYER 36. 1993AL s.a S19(S.\1 to CMeMi llffl1tcdCQbtlit)' COCtJOlnr io be trotld ti Endnote s l7. 19'13ALH 8 169(5.\1 a putnrnhlJ re,JU~ l'UJ'1)0Mfr,.. 38. 1993All. Llmdtd Ll.llllutrc.mo.., A ----- Memberl dtntdicalion ($oci31Secu rity) Number Ch00$t one: rr ~1r. :.....~1 rs. ll on. Other __ _ _ FuUNamt______ BusinessPho ne Number______Race______Sex___ Birthdale______Yu r ofAdmiMion ______ l' im, ------OfficeM ailing Address------City ______S1.11t __ ZIP Code------Count}' ------OffictStreet Addrt$$(if difftr City______SI.lite __ ZIP Code------County ------L------~ THEALABAMA LAWYER JULY1 993 / 239 COPYRIGHTLAW SURPRISES FOR NON-COPYRIGHT LAWYERS By Benjamin B. Spratling Ill and Beall D. Gary, Jr. opyright la1 is "tremen\lously send him oack a,copyright. He will ship fixed in any tangible medium counterinluiti e._'' "hard to grasp" then have 'copyrighted' his,work of expression, now known or later Cand a "mind-numbing collection and will own a copyright in il. If, developed, from which they can be of inconsistent, indeed incoherent, com- however, he doesn't feel like going perceived. reproduced, or other plexities.'' 1 Pei'.haps that is vhy most to the bother of copyrighting his wise communicated, either direct lawyers and laymen alike are surprised work, he can instead offer il, as yet ly or with the aid of a machine or by many of the provisions of copyright uncopyriglited, to a publisher. The device. Work s of authors hi p law. This article seeks to alert the non- publisher willde cid~ wliether ii is include the following categories: copyright lawyer to some of the Lltlle good enoug!) to publish, and if so, (I) literary works; known or misunderstood provisions"or- the publishe r will take care or (2) musical works, including the fede.ral Copyright Act of 1976 (the sending it off to the Copyright any accompanying words: "Copyright Act"). Officet o get it copyrighted. In that (3) dramatic works, including event, of course. the publisher will any accompanyingm usic; COPYRIGHT MYTH own the copyright. Once one has (4) patomimes and choreo According to a leading copyright been granted a copyright by the graphic works; scholar, most people, including most federal government, one is entitled (5) pictorial, graphic and sculp lawyers, have a rather concrete idea of lo put a copyright notice on one's tural works; how copyright law works, although ii work, and to invoke the law's pro· (6) motion pictures and other has little to do with actual copyright tection against plagiarism.' audiovisual works; la,11.Pr ofessor Jessica Litman describes This popular myth is probably derived (7) sound recordings: and this popular idea or myth as follows: in part from old copyright statutes and (8) architectural works.' from a fallacious merging of copyright, A creative person creates some Since the CopyrightAct covers"origi trademarkand patent doctrines. thing - a book, or a song, 01· a nal works of authorship ," does this painting. lf that person is especially mean that letters and memos written by THE SUBJECT MATTER OF protect ive of his rights, he can lawyers are automatically copyrighted? COPYRIGHT acquire a copyright. To do this, he In other words, are the typical attor sends his creation to the Copyright Actualcopy right law is quite different ney's file cabinets full of unregistered Office in Washington, which exam from the copyright myth quoted above. but valid copyrights? ''Of course not," Sect ion 102 of the Copyright Act ines it to ascertain whether il is the attorney says. "because my letters good enough. If the people in the addresses the subject matter of copy and memos are not creative like books, Copyright Office decide that it is right, and provides in pertinent part as songs or paintings. " He remembers sufficiently imaginative, and not follows: reading that facts, ideas, names and (a) Copyright protection sub duplicative of works U'llll have been titles cannot be copyrighted. True, but copyrighted in the past, they will sists.. .in original works of author- he may not have heard of copyright 240 /JULY1 993 THE ALABAMA LAWYER law's •scintilla rule" (although Alabama opinion, the defendant in that case was desirable to be the owner of a copyright lawyersare generallyconsidered nation unsuccessful in "extracting" raw facts in order to have absolute assurance of al experts on another "scintilla rule"). from the )'Cllowpages without also copy control of the useof the \\'Ork,to ensure Originality requires only a very small ing their selectionand arrangement. being able to employ it in any medium amount - a ·scintilla" - o( creativity. which may offeran economicopportuni Evena work which consists entirelyof CREATION AND OWNERSHIP ty in the futurt, to obtaingreater certain facts (which are not copyrightable)can OF COPYRIGHT ty as lo the period of duration of be copyrightedif the facts are arranged Perhaps most surprising to many copyright, and to eliminate an author's with a "scintilla" or creativity. The lawyers is how a copyright is now statutory right to terminate grants and amount or creativityrequired is so small obtained. I\ copyright is automatically licenses." The work made for hire doc that it was not until 1991 that the Unit created by federal law when a work is trine providesthat if the work is prepared ed Slates Supreme Court in Feist Publi created.' It is not necessaryto register a by an employeefor the employer.then in cationsu. Rural Telephone Service Co., copyright lo preserve It." IL will contin the absence or an expressw ritten agree Inc. finally settled an old question when ue to exist. normally for the author's life ment otherwise the employer will be It determined that the arrangement of plus 50years, whether or not the work is considered the author for purposes of fact., in the while pages of a telephone published. Even a copyrightnotice such copyright ownership,and therefore the book did not contain enough crealivi as " TMEALABAMA LA WYER JULY 1993/ 241 COPYRIGHT AFFECTS THE conjunction with the adopt ion of the if you represent an architect in negotiat PRACTICING LAWYER Architectura l Works Copyright Protec ing an owner-arch itect agreem ent. to The attorney who is involved in tion Act of 1990" (lhe "1990 Act") is to ident ify expressly th at copyright on owner-a rchitect cont ract negotiat ions ,>r.ovide copyrig ht protection (or t he building design also should remain th e will encounter several copyright issues orit nal design elemen ts of three property of the architect." If you repre relating to the Sections of the Copyright__ dimefli\iO"nal buildings , in addition to sent the owner, you may wish to expand Act referre d to above. lricluded in the copyright p'rotect ion for plans. drawings the scope of the license gl'anted with Copyright Act's enu merat ion of copy and models for such bui ldings. Th e respect to use of drawings and specifica rightable matters are "pictorial, graphic, American Instit ute of Architects' Stan tions. and sculptural works''" /which are now dar d Po,m of Agreement Betwee n Copyr ight protection with respect defined to include "two-dimensional and Owner and Architect renects that copy to drawings is not limited to buildings; three-dimensional works of fine, graph right protection vests in the creator of (or example, the designer who prepares ic, and app lied art , photographs, ... architect ural plans only, providing only plans for a golf course owns copyright charts, diagrams, models, and techn ical that drawings and specifications sha ll in those plans at the lime that they are drawings, includi ng architec tur al remain the property of the architec t, created, and many of the same issues plans"" ), along with a recently addea although the owner may retain copies with respect to the use of such plans by subsection covering architect ural works. for information and reference in con the owner would apply lo construction, Section I 02 of the Copyright Acl renects nection with use and occupancy of the additions to or complet ion of a golf recent amendments whose effect. in building. Accordingly, it may be helpful, (Continued on page 244) Notice SUPREMECOURT OF ALABAMA Recently, the supreme court issued an opinion in Ex parte Tuck IMs. 1920134, May 14, 19931 __ So. 2d ___ (Ala . 1993) , affirming an earlie r op in ion by the Alaba ma Cou rt of Civil Appeals in McKa y v. Tuck, !Ms . 2910394, October 16 , 19921 __ So. 2d __ (Ala.Civ.App. 1992). These opinions addressed che proprie ty of iacsimile filings under che Alabama Rules of Civil Procedure . The Alabama Supre me Cou rt held that "o th er filings altemptecl by facs im ile transm ission in re lia nce on the opinion o( the Court of Civi l Appea ls wil l be taken as proper on the same basis th roug h che period endi ng July 31, 1993. Afcer 1ha1 elate we will noc recognize facsimi le rransmissio ns as filings, wit hin the mean ing of ou r rules of court or the statutes ol this state, excep l as statu tes or rules may speci fically a uthorize 'f il ing ' by facsim ile transm issio n." fx Parle Tuck, __ So . 2d at __ . After due considera tion , the Supr e me Cour t Standing Commillee on the Rules of Civi l Procedure has recommended to Che supreme court that th e Rules of Civil Procedure nol be ame nd ed to provide for filing by facsimile transmission after July 31, 1993. Robert G. Esdale, clerk Supreme Court of Alabama 242 /JULY 1993 THE ALABAMALA WYER Cumberland School of Law Continuing Legal Education Fall, 1993 Seminar Schedule September 10 A Seminar on Damages • Birmingham September 17 ERISA • Birmingham September 24 Depo sitions: Technique, Strategy and Control with Paul M. Lisnek, J.D., Ph.D. • Birmingham September 24 AubUDl University Bar Association Bench and Bar Conferen ce • Auburn [co-sponsored by Cumberland School of Law] October l Annual Bankrup tcy Law Seminar • Birmingham October 8 Professional Responsibility : Advertisin g/ Specialization • Birmingham October 15 Representin g Small Businesses in Alabam a - Birmingham October 22 Recent Developme nts in Criminal Law and Procedur e • Birmingham October 29 Alte.mative Dispute Resolu tion • Birmingham November 5 Annual Workers ' Compensation Seminar • Birmingham November 12 Elder Law • Birmingham November 12 Annu al Business Torts and Antitrust Law Seminar • Birmingham [co-sponsored by the Business Torts and Antitrust Law Section] November 19 Issues in Employment Law • Birmingham December 3 Appellate Practice • Birmingham December 10 Recent Developments for the Civil Litigator - Mobile December 10 Produ ct Liability • Birmingham December 17 Recen t Dev elopment s for the Civil Litigator • Birmingham Brochures specifically describing the topics to be addressed and speakers for each of the seminars will be mailed approximately six weeks prior to the seminar. If for any reason you do not receive a brochure for a particular seminar, write Cumberland CLE at 800 Lakeshore Drive, Birmingham, AL 35229-2275,or call 870-2865 in Birmingham or 1-800- 888-7454. Additional programs and sites may be added to the schedule . THE ALABAMALAWYER JULY 1993/ 243 Prepare closing Copyright Law Surprises protected by copyright, and therefore for Non-copyrightLawyers may not be used without a license. documents in Terms of the agreement with the soft 15 minutes on (Continuedfrom page 242) ware supplier dictate the extent of the your PC permitteduse of any program.Typically, coursejust asLhey would to a building. the agreementrequires that a licensebe Computer-Generated The applic:abilityof lhe CopyrightAcl purchased for each copy of a program Closing Documents & oflen extendswell beyondlhe realms of used,and simplycopying one purchased Title Insurance Forms literature. architecture and entertain programlo use on ten differentcomput menl ILcan directly affect the practic ers constitutes copyrightinfringemenL $995 ing attorney as well Take for example Section 504 or the CopyrightAct pro the use of photographs in civiUitiga vides civil penaltieswhich can include, Let ProForm help you by tion. If counsel engagesan independent al a court's discretion, awards of up to pertommg ALL calculaoons photographer to photograph matters $20,000 per violation. and of up to related to the closing because rtlevanl lo litigation.such as the scene SI00,000 for "willful" violations. This it automatically recalculates when any changes are made. of an accident or a defectiveproduct, Section of th~ CopyrightAcl also pro Programmedw,th standa1d Lhosephotng raphs are subject to the vides for the award of costs and attor ALTA rntei nsurance policy Copyright Act, and ownership of the ney'sfees ." lorms and designed with the copyright arises in the photogra Approximately800 softwaremanufac ltexibihty to create your own pher as soon as the photographs are turers haveestablished a trade organiia forms using WordPerfect taken. It is nol nece~ary for the photog. merge capabillt,es tiori kno1onas the SoftwarePublishing rapher to register the copyrightin order" Agency,one of the functionsof which is • HUD-1 Setllementrorms lo protect the bundle of rights aris to identifyand prosecutesoftware copy • ALTA Title ,nsurancelorms ; ing under copyrightlaw. Thephotogra right infringers.The Software Pub lishing commitmentsand policies pher delivers lhe photograph to coun Agencyhas brought many enforcement • DisbursementsSummary and sel upon payment,which constitutesthe proceedings. typically in multi-count Balance Sheet grant of a license for lhat attorney complaintsaddressing unauthorl1,ed use • Buyer'sSta tement and to use Lhc copies provided. Opposing of any of the multitudeof programsthnl Seller's Statement counsel may also pay for a license to most law officecompu ters now employ. • Checks use copies. If. however,o pposingcoun As the scopeof the Software Publishing • Substitute1099$ sel does not wish to incur the expense Agency'senforcement efforts expa nds, it of paying for copies. he might attempt • ANY documents you create will become increasingly e"ldenl that using WordPerfect: Deeds. to obtain them by noticing the photog users or computer software programs Mortgages. Affldav11s, rapher's deposition and including shouldavoid unauthorized duplication of MiscellaneousLender Forms with the notice a subpoenaduces tecum programsthat they purchase.Most sell covering the negatives and photo ers of computer softwareprograms .will A complete systemcan Include graphs, to be provided for copying. Trus1Accounting , TIiie Plant permitthe purchaserto copythe installa Indexing, and 1099 Reporting If opposing counsel were to obtain tion disk and store lhe originalfor safe Order today and join over 500 the photographs in such fashion and keeping.Copyright law allows the useor satisfied customers nationwide then take them for photocopying, backupor archivalcopies. and modifica Use ProFOlmlor 30 days and ,t however. he could be violating fed tionsto a programto fil an intendeduse, not completely satisfied eral copyrightlaws. as the procurement but the use of addition.iicopies for other SoftProwi ll give you a full of photograph$pursuant to the subpoe computerswill exposelhe user to poten refund ProForm is IBM-PC na duces tecum in no way causes the compatible end supl)Ol1smost tial copyright infringement or license laser and 1mpact pnnters photographer to relinquish his owner agreernenlbreach claims !' ship of cogyrightwith respe<:llo those A major exceptionto lhe rights grant To order, or for more materials. ed pursuant to Section 106of the Copy ,nformauon, call us today right Acl. and therefore a defense to a COPYRIGHT INFRINGEMENT claim of infringement,lies in the doc SOFTPRO Copyright infringement occurs by trine of •fair use." The Copyright Acl Corporation virtue of Lhe violation of any of the embodiesthe concept that certain uses P 0. Box3 1485 exclusive rights vested in a copyright or materialotherwise protected by copy. Raleigh. NC 27622 owner, as identified in Section 106 of right are to be permitted,"for purposes the Copyright Act." An increasingly such as cri ticism, comment. news (800)848-o143 • (919)848-0 143 common problem. as computers prolif reporting, teaching (includingmult iple erate in law officesthroughout Alabama. copies for classroom use), scholarship. is the unauthorizeduse of softwarep ro or research .... "" Section 107 of Lhe grams such as "Word Perfect,'' "Lotus" Copyright Act, which sets forth the fair and "Windows".All such programs are use doctrine, also identifiesfour factors 244 / JULY1 993 THI~AI..Al3i\J\1A LA'NY Im to be considered in determining (dl The effect or the use upon the Endnotes whether a use constitutes a fair use. potential market for or value 1 Llhlllll.~ d >IJ'h,S3 U.l'IU.Utcv.2350991). Thosefactors are as follows: of the copyrightedwork;" 2./d., p.2. 3. 11u.s.c. t 1021•1 (a) The purpose and character or The purpose of Lhc doctrine of fair 4 111S.CL IZ$1. 1131.Ed.2d 35.! (19911 ("f W.H. Welcher, M.D. J.D. M.S.P., F.C.L.M. Forensic Psychiatry Medical Malpractice • Insanity as a Defense Personal Injury • Will Competency Wrongful Death • Workers Compe nsation Free Consultation Huntsville Suite 104 Birmingham 3315 Bob Wallace 6873 5th Ave. S. Huntsvllle. AL35805 Birmingham,AL (205) 533·2141 (205) 833-4878 rm:ALABAMA LAWVER JULY 1993 / 245 +ALABAMA STATE BAR ADMITTEES+ Lawyers in the family James A. Hall, .Ir. (1985) and Ruth Ann Hall Janie Salmon Gilliland ( 1.993) and Floyd R. ( 1993) (husl;and and admittee) Gilliland (1993) (wife and husband admittees) Alesia Hilliard (.1993) and Earl F. Hilliard Michael M. Lipscomb (1993), Berl Lipscomb (1968) (admittee and father) (1990) and Albert Lipscomb (1961) (admittee, brother and father) 246 /JU LY 1993 THE ALABAMALAWYER +ALABAMA STATE BAR ADMITTEES+ Lawyers in the family Jomes M. Nivner ( 1993) and Linda C. Flippo Dionne Smitherman (1993) and Tom Smitherman (1990)(a dmitteeand sis/er-in-law) (1980) (admilteeand brother) John Crow, II (1993), John Crow (1962) and Robert T. Gardner (1993) and Willia m F. 1Vi11sto11Crow (1992) (admittee, father and Gardner (1959)(ad mi/lee and father) brother) TMEALABAMA LAWYER JULY1993 / 247 +ALABAMA STATE BAR ADMITTEES+ KatharineLynn Braden FloydMay Gil liland, Jr. December 1992 Admittees James Darnell Brandyburg Janie Salmon Gilliland Scott Patrick Archer WilliamHoward Brode Larry Edwin Givens Melvin Lamar Bailey Ashley Butler Bryan Beth Ann Godfrey Albert OwenDrey , 111 John RobertsonCaldwell Robert Lloyd Gorham Charles MacNeillE lmer TeddiLane Carte Therese Hagemann Green WarrenA lberl Flick '!'racyW ayne Cary John Crow, Jr. William Jackson Freeman Basil TimothyCase John LanceGuinn Sabrie Cracelyn Craves Gregory Lee Case Stephen Willis Guthrie Corrie Patricia Haanschoten Jennifer Michaels Chambliss Jack Danny Hackney Paula DaugherlyK ennon Phillip WayneCha ncey,Jr. John Patrick Hagood Lewis Wardlaw Lamar Sandra Jeanne Childress Ruth Ann K. Hall BillieBoyd Line, J r. TimothyAllen Clarke Carol Lynn Hammond WandaStubblefield McNe il DonaldQ uinton Cochran, Jr. Charles WayneH annah Janet Novatnak William Eric Colley Keith EdwardHarmon Gilmer Tucker Simmons ConnieJo Cooper DavidMichael H arrison Stanley Bernard Stallworth Robert Chandler Davis Dennis DeWayneHarrison EmilyNap ier Walker EdwardRa y DiIl ard BruceA lbert Haught Elizabeth CamillaWib le Cathy BrownDonohoe Jerry WayneHauser Ann LeeWitherspoon Paul Frederic Donsbach Robert Scott Head Lora Renee Dorin Lauren McKee Heard Spring 1993 Admittees Clyde Emil Ellis DeborahBittl Hembree DeedraAbernethy Polly Delilah Enger Alesia LynetteHilli ard Nancy Sue Akel Derrell Otis Fancher James Michael J-livner Joseph Scott Ammons KevinLee Featherston VeraSm ith Hollingsworth DebraA nn Armstrong-Wright KimberlyOwen Fehl Lisa Renee Holmes Nicholas Basil Bangos Thomas Richard Fields,Ill Bryan Keith Horsley Roberta Dunn Bartley Robin KilpatrickF incher James Cordon House, Ill John Edwin Bockman 1'imothy MelvinFu I m er Emily Hurst RobertTerrell Gardner James Carl Ingram, Jr. 248 /JULY 1993 THE ALABAMALAWYER +ALABAMA STATE BAR ADMITTEES+ Stuart FawcettJames MicheleCarstens O'Brien DebraJean Smith AngelaBishop Jenkins BradleySyfrell Odom JamesMcCauley Smith JamesAnthony J ennings,Jr. MarjorieElaine Owings OuidaDianne Smitherman Charles EveretteJohns, Jr. MacKenzie Paul Parris DwayneRussell Snyder 1\1yel NguyenLam Michael Lenard Patterson Mary FrancesSpato la BenjaminArthur Land James RussellPigott Susan LeeStanford John Melvin Lassiter,Jr. CharlesArthur Powell, IV KathrynVelma Stanley BarbaraAnn Lawrence EdwardEugene Price Eugene EdgarStoke r DavidMark Lawson BehrouzKalkhoran Rahmati DavidJonathan Thies KathyShelnutt Lecroix ReginaldAlan Rhodes Sherry HoyleThomas DavidTyler Lewis BeverlyDenise Rivers DaveThompson, Jr. Jon Ethan Lewis LeonidasLeroy Roane, m Jean WalkerTucker Laura Leigh Lewis James MacDonaldRobertson MichaelJay Upton MichaelM cFall Lipscomb Norma Maynard Roessler Carl GibsonVance AndrewWilliam L ohn CharlesVine Sams, Jr. Sherrod Judson Wailes, II BarbaraRusse lI Luckett PhilipJoseph Sanchez, IV LarryAl Ian Ward MelindaLee Maddox Curtis RaySavage. Jr. BruceMcGehee W estbrook Christopher Earl Malcom MichaelJames Schofield ThomasLawrence Whiteside LeighAnn Mansmann CarolynRankins Shields CarolPaige Williams Sandra CoodingMarsh Laura DeloresShows KimberlyHarper Williamson Cerald MarionMartin Launice Paul Sills StephenJoseph Ziemkowski Deborah Ann Mattison Robin tone Mayfield Spr ing 1993 Bar Exam Statisti cs of Int ere st LloydDuane McCammon Number siltingfor exam...... 222 Numbercerllfied lo AlabamaSupreme Courl...... 13i WilliamWayne McCartney, Jr. Ctrlificationrate ...... 62perc ,ent ChristopherCrady McCary Certificationpercentages: • Universityof Alabama ...... i9 percent DavidAllen McDonald • CumberlandSchool of l..aw...... 78 percent • BinninghamSchool of Law...... 38 percent Jenny Lu McLeroy • Jones Schoolof Law- ·····-...... 62 percent Maryanne ElizabethMelko • MilesCollege of l..aw...... Opercent Jennifer Ellen Morton THE ALABAMALAWYER JULY1993 / 249 I OPPORTUNITIES Thefollowing programshQlJf! been app1'0lledby the AlabamaMandato ry Con!inuing legal Education Commissionfor CLE credit. For information regardingother availableapprooed prog rams, con/act Diane Weldon, administrative assistantfor programs, al (205)269-1515, and a complete CLE calendarwill be mailed to you. DEPOSITIONS JULY . AUGUST Birmingh~m Alnb.,maBa r Institute for CL.P. 14Wed nHdei,, 3 TUHdei,, Credits: 6.0 A PRACTICALGU IDETO ESTATE SUCCESSl'ULJUDGMENT (800)627 ·65 14 ADMINISTRATIONIN ALABAMA COLLECTIONSI N Au\BAMA 22·23 Mobile Mobile PERSONNELLAW UPDATE NationalBusiness Institute, Inc. NationalBusiness Institute. Inc. Birmingham,Rndisson Hotel Credits: 6.5 CO$t:$128 Crtd,u: 6.0 CO$!;S128 Councilon Educationin (715)83S-SS25 171518:35-8525 Management 15 Th...... S.y 4 Wedneaday Credits: 11.0 ALTERNATIVEDISPUTE SUCCESSFULJUDCMENT (415) 934-8333 RESOLUTION COU.ECTIONSIN ALABAMA 23 Thuraday Mobile Mo11t11om•ry REALESTATE UW LormanBusiness Centtr, Inc. NationalBuiinw Institute. Inc. Montgomery Credits: 3.5 Cost: S135 Credits: G.O Cost: SJ28 Alabllm.,8.\r lnslitule for CLE (715)833-3940 (7151835-8525 Credits: 6.0 (800)627 ·6514 A PRACTICALCUIOE TO ESTATE 24TuHdey ADMINISTRATION IN Al.~BAMA FAMILY LAW I.ITICATION 24 Friday Montgomery INA I.AllAMA DEPOSITIONS:TECHN IQUE, NotionalBusiness Insti tute, Inc. 13irmingham STRATEGY& CONT ROL Credits: 6.5 Cost: S128 NationalBuslnw Institute. Inc. Birmingham (7151835-8525 Credits: 6.0 Cost: $128 CumberlandI nstitute for CLE 15-17 (715)835-8525 Credits: 6.0 (800) 888-7454 ANNUALMEETINC 27-28 StoufferRl\'trview PbZll Hottl. PAMILYLAW RETREAT BENCH& BARCONl'ERE!iCE Mobile OrangeBeach Auburn AL\bamaState Bar Alablorna8.\r lnstitut• for CLE Auburn Unl,,.rsltyBar (205)269 - 1515 Credits:6.0 AssocL\tion/CumberlandInstitute 21 Wedneaday (800)627-6514 for CLE BOUNDAIIYu\W INALABAMA Credits: 4.0 Birmingham,Uoliday I nn Redmon! SEPTEMBER (8001888-7454 NationalBusiness Institute , Inc. REAi.ESTATE LAW Credits: 6.0 Cost: Sl28 10 Friday Blm,ingham (715) 8:15-8525 DAMAGES AlooonmB ar Institute for CLE 23 Frldai,, Birmingham Crediu: 6.0 INSURANCEu\lV CumberlandInstitute for CLE (800)627 -6514 Birmingham Credits: 6.0 30 Thursday LormruiBuslMss Conter, Inc. (800) 888-7454 AUTOMOBII.ECOLLIS IONCASES CredilJ: 5.7 Cost: S135 Mobile (7151833-3940 S-'11\1.LESTATES Birmlnglllm Alabo.maBar Institute for CLE AlabamaBar Institute for CLE c~dits: 6.o Credits: 6.0 (800) 627-6514 1800)627-6514 17 Friday ERISA Birmingham Cumberland Institute for CLE Credits: 6.0 (800)883-7454 TME ALABAMALAW YER JULY 1993/ 251 OPINIONSOF THE GENERALCOUNSEL By ROBERT W.NORRIS, general counsel uestion : nswer: " I am writing you at the request or James D. It is the opinion or the Disciplinary Commission Smith, the acting chief administralive law judge for that Rule 3.3(d) of the Rules of Professional Con the Mobile office of Hearings and Appeals. Our D duct of U1e Alabama State Bar applies to lawyers moffice is part or the Social Security Administrat ion. We are participating in hearings before a Social Security Administra responsible for adjudicating Social Security disability, retire tive LawJudge adjudicating Social Security disability, retire ment and survivors· claims appealed from adverse determina ment and survivor claims. The term "tribunal" as used in this tions made by lower level components of the administration. rule includes both courts and administrativeproceed ings. Rule The Administrative Procedure Act, Social Security Act, the 3.3 is applicable to adjudicative hearings while Rule 3.9 con Code of Federal Regulations, and formal rulings issued by the cern s non -adjudicat ive proceed ings. The only difference administration provide the basic legal frameworkthat governs between Rules3.3 and 3.9 is that a lawyer representing a client how hearingsare held and decisionsmade in our office. before a non-adjudicativeadmin istrative proceedingor a legis ''We need the state bar's input to clarify the applicability or lature is not required to inform the legislativeor administrative Rule 3.3 or the AlabamaRules of ProfessionalCon duct in Social tribunal or all material facts known to the lawyer. Securil)•proceedings at the hearing level. Specifically, is a hear Rule 3.3 of U1eRules of ProfessionalConduct is a "fairness ing held by an administrativelaw judge in any of the four OHA rule" designed to protect the integrity or the decision-making offices located in Alabama an 'ex parte proceeding' within the process. ProfessorsHazard and Hodes, in their handbook. The meaning of Rule 3.3(d)? Modem Rulesof ProfessionalCo nduct, second edition, section "The issue is quite troubling to the judges and attorneys in 3.3:101,provide the following overview of the rule: our office. Certain well-recognizedSocial Security attorneys "When the adversary system is operating smoothly, opposing have lectured al CLE seminars and even made videotape pre counsel police each other. They can generallyb e relied upon to sentations during the past few years suggesting that they have exposefalse and misleadingrep resentations made by the other no duty to submit any evidence. medical or otherwise, poten side, and to present legal argumentation in a sharp dialectic tially adverse to their client. However,since the Pederal Rules that will help the court come to a sound decision. But opposing of Evidence do not, per se, apply in the administrative proceed counsel may not always discover the truth or the law, either ings we conduct and because the adjudication process we follow through lack of diligence or because the truth has been effec is non-adversarialin nature, a real potential exists for decisions tively concealed.W ithout rules assuring that lawyersw ill police being made based on an incomplete record. Therefore, a poten themselves, therefore, courts would occasionally make deci tial for abuse is created strictly by differing interpretations of sions on the basis of evidence that one of the professionalpar various applicable legal principles. It has been my experience ticipants knows is false, or apply legal concepts that one or the that some advocates view themselves as more of an officer of professional participants knows has already been rejected by a the court, while others, as mentioned above, adopt a more zeal higher court. ous approach lo representation with respect to disclosure or The situation treated in Rule 3.3 entails the most severe ten facts adverseto their client. sion between duties to a client and duties lo the tribunal. Ac· '1 think the resolution of this issue is important. As I under cording to this rule, where there is danger that the tribunal stand it, Rule 3.3(d) did not extend under the AlabamaRules o r will be mislead. a litigating lawyer must forsakehis client's im Professional Conduct prior to January 1. 1991.Therefore, it mediate and narrow interests in favor of the interests of the represents a new ethical standard of which many attorneys may administration of justice itself. In these situations, the concep not even be aware. With the huge growth of the workloadwith tion of lawyer as 'officer of the court' achieves its maximum in OHA,the same rule potentially applies to legal representa force." tion in up to 9,000 claims currently in the process of Rule 3.3(d)expands the lawyer's duties in an ex parte pro adjudication within the four OHAoffices in Alabama (2,500in ceeding requiring U1elawyer to inform the tribunal of all mate Mobile).Ju st as important, the above provision is part of the rial facts known to the lawyerw hich will enable the tribunal to ABAM odel Rules of Professional Conduct. As a result, many make an informed decision, whether or not the facts are other states have also chosen to adopt the same, or a similar, adverse. ProfessorsH azard and Hodes provide this explanation provision. To my knowledge, no formal opinion has ever been of subsection (d): issued by a state bar covering the applicability of the same "Normally, U1e principal duty of an advocate in any proceed· model rule language in Social Security proceedings. ing is to present the best possible case for his client However, "All or the judges and attorneys in our office would greatly since opposing counsel will not be present in ex parte proceed appreciate your consideration of this question for a formal ings, and will not be available to expose deficiencies in U1e opinion~" proofsor to present countervailing considerations, the tribunal 252 / JULY1993 THEALABAMA LAWYER must be protected from making wrong decisions that it would Office hearing officer ewn if that might cause the patent to be not ha,-e made in an adversary proceeding.I n subsection(d). denied. therefore, the special duty or candor to the lTibunal( and the If the proceedingsare non-adjudicath,e,the la"')'er doesnot public mterest in the integrity or the process)once again oul have a duty to reveal all material facts but Rule 3.9 requires "'eighs the advantage lo an individualcllenL" that the la"')'erdisclose that he is appearing in a representative By deliberately using the term "tribunal", the rule is applica capacity and that he abide by the special duties or candor con ble to adjudications before administrative bodies, as well as tained in Rule3. 3(a), (b) and (cl, ns well as Rule 3.4, l'airness to courts. In Charles Pfizer and Co., Inc. v. FederalTrade C om Opposing Parties and Counsel, and Rule 3.5, Maintainingth e mission, 40 1 1>e. 2d 572and 579, (6th Cir. l968), the Court held lmparlialit>• and Decorum of a Tribunal. that a patent lawyermust present adversefacts to a U.S.P atent (R0-93-06) • UNIVERSITY OF ALABAMA SCHOOL OF LAW CAREER SERVICES OFFERS HELP FOR EMPLOYERS Bg Segail Friedman assist attorneys with the hiring pro practicing professionals:our alumni." "I heard it through cess: on Tl IE ALABAMA LAWYER JULYl 993/ 253 or years the Bankruptcy Court has been the e.,clusivedomain of creditor and debtor la,vyers.T hese la,vyersdeveloped a language Lhatno one on the "out side" could understand. "Prepetition", ''post-petition", "adversary proceeding'', "fresh start" and other phrases kept them protected from invasion from other lawyers. However, in the last ten years or so the Bankruptcy Court has been invaded by an ·'outsider''. The environmental lawyer from the government has become the uninvited guest Lo the party. This article is about the blurring of the lines of the traditional concepts of the bankrupt(.-y lawsas they come in contact with the environmental laws. The fundamental idea of a bankruptcy is that bygonesshou ld not prevent the best current deploymentof assets. Sunk costs and their associated promises to credi tors create problems of allocation when the debtor cannot pay its debts as they come due. But assets that cannot generate enough revenue to pay all claims may still produce net profits from current operations. So bankru ptcy cleaves the debtor in two.T he existing claims must be sat· isfied exclusively from existing assets, while the ·'ne\,, debtor" creal· ed as of the date that the petition is filed carries on to the e.,tent curr ent revenues allow. However, having been a debtor in bankruptcy does not authorize the debtor to operate a nuisance today or otherwise excuse it from complyingwith laws of general application. The fundamental idea of environmental law is that a violation of I an environmental statute is in the nature of a tort and is usually one of strict liability, whereas, the traditional concept of a claim is one that generallya rises eut of a breach of contract. It would make no sense under either the BankruptcyCode or environmental laws to say Lhat as long as a property remains in the hands of either the debtor or a future third party By James G. Stevens that either may discharge toxic or hazardous materialwitho ut possibility of redress. but thal as soon as they sell or transfer the property to a new owner, the new owner is saddledwith the clean-up obligations. Bankruptcyis designedto sever the link between debts for bygones and current operations. Just as a security interest or other lien passes through a bankruptcy unaffectedand sticks with the assets on transfer to any new buyer, so a statutory obligation attached to current Ja mes Q . ownership of the land survivesbankruptcy. Steve na James G. Stevens Severalenv ironmental laws that are the subject of most bankruptcy cases and an overvie\v serveses associate of them is provided. gonoraJcounsel tor The Comprehensive Environmental ResponseCo mpensation and Liability Act 42 U.S.C. lhe AlabamaOcpan• meru0, Environmen· §9601 et seq., (CERCLA),known as "Superfund", involves cleanup liability for releases 1a1Managemen t. Ho of hazardous substance.sat "facilities". Liabilityis strict. retroactive and joint and several. Is a 01adua1e ol tne CERCLApl aces liability on current "owners and operators" of a facility as well as those BirminghamSchool ot Law and serves who owned or operated the property at the time of disposalo r who arranged for the disposal 8$ the cha ir or I.ho of hazardous substances (known as "potentially responsible parties" (PRP'sl). CERCLA EPA', RogfO('II V Underg1ound$1orage Tf!nk contains limited exemptions for secured parties and "innocent purchasers and under ProgramAttorney's Work Coomnce , some circumstances pays for cleanups. The U.S. Environmental Protection Agency( "EPA") has jurisdiction over CERCLAadmi nistrative act ions that may impose liability for "response costs" on PRPs.§9607. Section 9606 allows EPAto act or order an owner/opera tor to take action where the contamination poses imminent hazards to public health or the 254 / JULY1993 TME ALABAMA LAWYER environment. Both sections figure in claims by EPA in any debt excepted from discharge under §523 of the Code; a bankruptcysettings . debtor if the plan providesfor liquidationof all or substantially The Resource Conservation and RecoveryAct (RCRA), 42 all of the propertyof the debtor's estateand the debtor does not U.S.C. §6901el seq. regulates the disposal,treatment, storage engage in business after consummation of the plan and the and transportationof hazardouswaste. RCRAa lso contains the Debtorwould be denieda discharge under §727(a)o f the Code. subtitle D landfill rules and covers underground storage tanks §114l(d). IUSTt.T he AlabamaDepartment of Environmental Managemenl ln the event the Chapter 11 plan is not consummatedand the ("ADEM")admin isters a.federallyapproved ha1.ardous waste pro case is either dismissedor converted to a Chapter 7 case, the gram and lhe UST program. RCRAis a cradle-to-gravestatute Court upon request of a party in interestcan revoketh e order of designto work hand in hand with CERCLA. confirmationand revokethe dischargeof the Debtorof the vari The Clean WaterAct (33 U.S.C.§ 1251 et seq.(CWA)regulates ous debts treated under the plan. §1144. discharges of pollutants into navigable waters of the United Corporationsare not dischargedand the drafters of the Code States. CWAregu lates NationalPollutant DischargeElimination apparently felt that it was not necessary for a discharge to be System(NPDES) perm its and it providesfor citizen suits for vio given to the debts of a corporation. Whilethese debts may forev lation of permit requirements.In Alabama, ADEMis authorized er "remain uncollectible", they neverthelessare not discharged a federally approvedstate program in lieu of the federal pro under the Code. gram. The Clean Air Act (42 U.S.C.§7401 et seq.(CAA)was amend AUTOMATIC STAY PROVISION ed in 1990 regulates air pollution and includes emission stan dards for such hazardous air pollutants as asbestos and The filing of a bankruptcypetition does not operate as a stay benzene. ADEM is author ized to admin ister a federally of the commencementor continuationof an action or proceed approvedstate air quality program in lieu of the federal pro ing by a governmentalunit to enforcesuch governmentalunit 's gram in Alabama. policeor regulatorypower . §362(b)(4)The filingof a bankruptcy petition does not operate as a stay of the enforcementof a judg INTRODUCTION ment (other than a moneyjudgment) obtained in an action or proceedingby a governmental unit to enforcesuch governmen Generally,a discharge of debts obtainedin bankruptcyin both tal unit's policeor regulatorypower . §362(b)(5). a Chapter7 and a Chapter 11case extinguishes prepetition debts Code sections362(b)(4)-(5) concerning the exceptionsto the of the debtor which are allowed as valid claims against the automatic stay provisions of the Code present the issue of debtor in the bankruptcyproceeding. There are several excep whether the State is violating the "stay" provisions when tions to this general statement, some of which will be discussed attempting to enforceenvironmental laws. T he issue is whether in this article. or not the State is operating under the aegis of its police and Adischarge voids any judgment to the extent that it relates to regulatory poweror seekingt o collecta moneyjudgment. an allowed claim in the bankruptcycase. A discharge also oper Section 362(b)(5)allows for the enforcementof a judgment as ates as an injunction against the commencementor continua long as the enforcement is not for the collection of "money tion of any act to collect,recover or offsetany such debt. §524(a) judgment".Th is term is not definedin the Code. ("Code" & "§524" referto the BankruptcyCode). The caseof Penn Terraltd. v. Department of Environmental In a Chapter 7 case, a dischargeis granted by the Court only Resources,733 F.2d 267 (3d Cir. 1984) held that an action to under certain conditions, including:the debtor is an individual; compel a debtor corporation to complywith an agreement to the debtor has not defraudeda creditor or the bankruptcyestate clean up hazardous wastes was exempt from the "stay". The by the transferral;destruction or concealment of any propertyof PennTerra court establisheda test to define" moneyjudgment ''. the estate; the debtor has not falsified or destroyedany of the The ''commonlyaccepted usage" test has two prongs: (I) an financialrecords; the debtor has not refused to obey any lawful identificationof the parties for and against whom U1ejudgment order of the Court. §727(a). is entered and (2) a definite and certain designation of the Under§523 of the Code,a dischargein either a Chapter7 case or a Chapter 11 case docs not discharge the debtor from certain prepetition taxes owing to governmental bodies; debts relating to money or propertyobtained by false representation or actual fraud; debts that are neither listed nor scheduledin the debtor's AwARDW rNNINoSoFTWARE! scheduleof assets and liabilities;debts relatingto fraud or defal cation whil.e acting in a fiduciary capacity;debts for alimonyand TurbOCLOSE" Real Esta te Closing Software support of a former spouse and child of the debtor; debts for a fine or penaltypayable to the benefitof a governmental unit that Officially is not compensation for actual pecuniaryloss; and debts relating Endorsed and Recommendedby to death or personali njury causedby the Debtor's operation of a At torneys' Titl e Guaranty Fund, Inc. motor vehicle while intoxicatedfrom alcohol, drugs, or other substances.§523(a ). • Actuallyfill in HUD-1 on screen. The confirmation of a plan discharges the debtor from any • CompleLe c.l~ings In 30 minutes.(Avg) • Com etc rogram ror 00$ings. (800)741-6465 debt that arose prepetition, excluding, an individualdebtor from THEALABAMA LAWYER JULY1993 / 255 amount which is owedto the plaintiffby the defendant. the valueof the properly,then the propertyis of inconsequential The f'it\h Circuit Court or Appealsagreed with the PennT11rra valueand benefitto the estate. rationale in In re CommonweJJllhOil Relining Co.. 805 l'.2d Prior to 1986, debtors and trustees frequently argued that 1175(5th Circuit 1986) where an action to enforceco mpliance under the circumstancesas set forth above, the debtor's estate with RCRAwas not stayed because the action was not an should not be required lo dean up any contaminationand the attempt to enforce a · money judgment• ·notwithstandingthe Court shouldallow abandonmeoL fact that the debtor will be forced to expendfunds in order to In 1986, the United States Supreme Court (in a li\'e•lo-four comply". decision) held in MidlanticNolionol Bank u. NewJerseg Depart Ohiov. K()IJ(JCS.469 U.S.274 (1985) presents contra conclu ment of EnuironmentalProtection, I 06 S.CL755 (1986), that a sion. The K()IJ(Jcscourt turned its rationaleon the fact that the trustee may not abandon property in contravention of a state State of Ohio had taken possessionof Kovacs'property prior lo statute or regulation that is reasonablydesigned to protect the the rilingor bankru1>lcy.and, therefore,the state was seekinglo publichealth or safetyfrom identifiedhazards. enforcea moneyjudgment. The debtor in Midlanlicprocessed waste oil al two locations, In U11iledStoles u. Nicolet,In c.. 857 f'2d 202 (3d Circuit one in NewYork and one in NewJersey, and had violated its 1988) the Third Circuit again addressed the issue slating that operating permit by accepting more contaminated waste oil the automatic stay did not apply to the EPAeven though the than it could handle. The debtor filed a voluntary Chapter 11 action sought moneyjudgment for prepetitioncosts. The court petition, and the next dlly the NewJersey Departmentof Envi noted that the mere entry of a money judgment is not affected ronmental Protectionissued an administrativeorder requiring by the stay pr0\~s1ons. the debtor to clean up the waste oil sites. Severalmonths later, The latest caseto deal with the stay provisionis The Citg of the debtor convertedits Chapter I J caseto a Chapter 7 liquida New York v. Exxon Corporation,932 F2d 1020 (2d Circuit tion case. A trustee was appointed in the Chapter 7 case and 1991). This was a case of first impressionin the SecondCircuit quic:l 256 /JULY 1993 THE ALABAMAL.o\WYER ment powerdoes not , however,encompass a speculative or inde Corporation, 944 P.2d 997 (2d Cir. 1991), the United States terminate future violation of environmentallaw s that may stem Court of Appealsfor the Second Circuit held that all cleanup from abandonment, and that the abandonmentpower is not to costs assessedpost-pet ition as a result of a prepetitionre lease or ~ diminished by lawsor regulationsnot reasonablycalculated threatened release of hazardous substances are entitled to to protect the public health or safety from eminent or identifi administrativepriority in the Chapter 11 reorganizationof the able harm. debtor. The four dissenting Justices expressed their dissatisfaction The Chateaugaycourt also dealt with the more compelling with the majorityopinion by relyingupon the legislative history issue that of "injunctive remedies as 'claims'". A "claim" that does not suggest that Congress intended to limit the includes"( B) right to an equitableremedy for the breachof per trustee's authority to abandon burdensome property where formance if such breach gives right to a right of payment, abandonmentm ight be opposedby those chargedwith the exer whether or not such right to an equitable remedyis reduced to cise of state policeor regulatorypower. judgment, fixed, contingent, matured, unmatured, disputed, Since it was not disputedthat the propertiesin questionwere undisputed,secured , or unsecured... " Code§101(4)(8). burdensomeand of inconsequentialvalue to the estate, forcing Thus, an order to removewaste that is not currently causing the trustee to spend estate assets to clean up the sites was plain pollution and the state incurred the cost of removal and then ly contraryto the purposesof the Code. sued for those costs, such order is a "claim"under the Codeand By barring abandonment and forcing a cleanup, Mid/antic as such would be dischargeable.On the other hand, if the order effectively places the environment and the public ahead of the requires action to ameliorate current pollution, such order' is claimsof other creditors, and Congressd id not intend that §554 not a "claim''. abandonment hearings should be used to establish the priority The questionarises-"What if the order is both?" lf the order of particular claims in bankruptcy. has the dual objectivesof removalof wasteand the amelioration of current pollution, then such order is not a "claim" and is PRIORITY OF thereforenot dischargeable. ENVIRONMENTAL CLAIMS IN BANKRUPTCY MIDUlNTIC The legal contentions concerning the trustee's right to aban don contaminatedproperty pursuant to section 554of the Code Support for allowingas an administrative priority the cost of frequently includes (whether or not stated) the debate as to post-petitioncleanup may be drawn from Mid/antic. lf property whether the debtor's estate must bear the expenseof clean-up. on which hazardous materials pose a significanthazard to the and if so, whether such expenseshou ld be classified as a prepeti public health cannot be abandoned,it must followthat expens tion unsecured claim or a post-petition administrativeexpense es to removeU1e threat posedby such hazardoussubstances are (which is given a first priority status as an administrative necessary to preservean estate in bankruptcy. To some extent expense pursuant to §507(a)(l) of the Code) or a mixture of Kovacsand Chateaugay p re.sentthe same dilemma in deter prepetition unsecured claim and a post-petitionadmin istrative mining what aspects of an environmental injunction give rise expense,or a super-prioritywhich transcends all claims, both to the right of payment. The order in Kovacs enjoined the secured and unsecured and which has no statutory basis. F'or defendantsfrom causing further pollutionof the air and public example, if a debtor must complywith a court order requiring waters and required the defendants to remove specifiedwaste the debtor's estate to spend money to clean up contamination, from the property. Most environmental decrees contained "a boU1 securedand unsecuredcreditors of the debtor's estate may negativeorder to cease polluting"an d "an affirmativeorder to be adverselyaffecte d by such requirement. clean up the site.'' In Kovacs,the Court was spared the need to Under Code section 1129(a)(9), all post-petition administra· determine preciselywhich obligationsof the order could be said tive claims under §507(a)(l) must be paid in full and in cash to constitute "a claim" because of the State of Ohio's actions, upon the effectivedate of the plan. Accordingly,the holder of an ("the clean up order had been converted into an obligation to allowedpost-petition administrative c laim has the powerto veto pay money.") any such plan proposedby the debtor if the requirementof sec It is important to note lhat, as in Kovacs,a person or firm in tion 1129(a)(9)is not mel possession of a site with environmental degradation may not The environmental law concept that ownership of contami maintain a nuisance or pollute the environment of the state or nated propertyconst itutes an ongoingvio lation of the law con refuse to remove the source of such pollution. This is true in flicts with the Code's design of distinguish ing between Alabamabecause the environmental statutes make it a nuisance prepetition and post-petition claims, and also raises several per se to inject a pollutant into lhe environment without the questions.Are prepetitionclean- up costs entitled to administra appropriatepermit (SeeIn Re:CMG Hearl/and Partners 35 ERC tive expense status? (See, Code §§507(a)(l) and 503(b)J. Are 1001.) post-petitionacts that cause new contaminationor irritate prep It is consistent with Mid/antic and Kovacsto place all injunc etition contamination entitled to post-petition administrative tions that seek to remedy the ongoing pollution on the non priority?!See: In re CommonwealthOil Refining Company,805 "claim" side. It is difficult to understand how any injunction F'.2d ll75 (5th Cir. 1986)1, (cert. denied at 483 U.S. 1005 directing a property owner to remedyo ngoing pollution could (I 987)1.Are post-petitioncosts incurred in order to clean up a be conceived as a dischargeable claim if the owner may not prepetition environmental problem· entitled to post-petition maintain a nuisance in violation of environmental laws. In administrative priority status? In the case of In re Chateaugay addition, it is consistent with Mid/antic 's holding that the THE ALABAMALA WYER JULY19931257 bankruptcycode does not entitle the debtor/trustee to abandon property in violationof an environmentalregulation that is rea- 50nablydesigmd to protect tht publicfrom identifiedha:.ards. AT!'E!,'ll ON: ALABAMA LAWYERS TRUSTEE ' S POTENTIAL LIABILITY 111£ ALABAMA AS.50CIA11 0 N 0 1' LEGAL SECR!ITARl ES wM'fS NEW ME!ltll.EBS The courts will probablyprotect trustees against personal Ila bili ty ror honest mistakes In business judgment. However.a •.nd II ••n.u VOtlll U:CAL SF..CllETAKV , A tcsal sccre1:1ry wbo U a "w:mbcr or 11\eAJ lb al!U Auod1ll011or Lc Jal s«-rtW'fu can: trustee can be held personally liable for misconduct which is willfulor intentionaland for negligent misconduct,and (or the Be a vlNll,k ttlOl.lf'Ce wiffl 1CUU to CO.,TU"it1ISC LEGAL EDUCATI ON. consequencesfor such misconducl [See,Mosser u_ Darrow.341 U.S.267 (1951)1;Also, in In re ChicagoPacific Corporation. ~ DlR.ECT'lor,/ A.'"D 'TltAL"'ilNG • Nb kt rok: .. m )'IC* IQ.a tcn'ica dthuy ...... lilttl'MI: e&roer. F.2d 909 (7th Cir. 1985), tht U.S.Court of Appealsheld that a and fw-c acu.u 10 lhc ~ propaM JO bctomc.tt:r1mCd trustee may be held personallyliable only for willful deliber· u a PR0 f:"£SSI.ONAL l.ZC AL. S&CRETAllY: ate violationsof his fiduciaryduties and FordMotor Crodil Com ,_ l\"tn\.OJU(]SC Ol'l'l)RruJ\1 11ES ,n ovu ch< pany v. Weauer.680 f'.2d 451 (6th Cir. 1982) where the U.S. CCMll'llt)'ffflffl t Cl!ltKu _... t1 wmllWI ind ton(t:ttncies , Court of Appeals for lhe Sixth Circuit held that a trustee is per eNOOUl\AGE and SUPPORT !hee ,wollmcmo( yovr legal k"ffl:tary In sonally liable only for willful deliberate acts in violation of his your ~ dlap&e:ro f lhe AI.AhMtA A.i;.WCIA110N OF l.&CAL fiduciaryd uties. SECUT ARJES 1odlyU The courts havet held hat a trustee is personallyl iable for the negligentviolations o( duties imp0sedupOn him by law. [See,In I re CochiseCollege Park. Inc. 703 f'.2d 1339 (9th Cir. 1983); ,. ~ ...._, CIDIIICla. Bennett v. Williams, 892 F.2d 822 (9th Cir. 1989); and In re 0-, L o..t, C- ,U Gorski, 766 F.2d 723 (2d Cir. 1985)[.Negligence was definedto CMIMl-. ,.__ Gudilo', MIS as the measure of careand diligencethat an ordinarilyprudent o..a•o ·Nat ,- Offfcc,C. Ul611 - ALAM\1,\ A~llCN- person would exercise under similar circumstances.See. In re N.m,;l"' IIMI, AL 3'lll (lOJlll?·IOOO or LU,.iJ. Stckrr;.11.1~ CochiseCollege Park. I nc.. supra. ' ~·· ...... ~ ...... ''""'"" ... ,..... In addition, a trustee is required to manage and operate the property in his possessionacco rding to the requirements of the valid laws o( the state in which such property is situated and in the same manner that the owner would be bound to do if the ownerwere in possessionof the property. §959(b)I, The U.S. Court of Appuls for the Eighth Circuit in State TB.a>I-KlNE FACSl~ULE (?OSI1?8-9111 (20S)326-2316 of Missouriu. U.S.&mkruptc11 Court for the EasternDistrid of Arkansas, 647 f'.2d 768(8th Cir. 1981), held that although the ANNA LEE GIATI INA bankruptcy court had Jurisdiction over the debtor's AITOIINEY· MEMBEROF AI.ABAMADARSINCT1987 property, the trustee nevertheless was required to operate Ann.aIAt' 01111,tn. 1,P.C certain grain warehousesIn accordancewith state law pursuant The PlauaBuild In, "I r-.1.1gm,li11omu Puri to 28 U.S.C.§959(b). Also, in Wisconsin v. Beller Brite Plate S..itc l 18 • l l 12 ElcvcmhAvenue Sourh fnc., Wis. CL App. No.90-0280, a trustee was held personally Blnnlngham,Al1"'1m., lS20S liable by the trial court for foiling to obtain a state license to store hazardous waste upon the debtor's property,and for costs ...._.-IClAICM • UlfR'1ITTlSC...... __ • "mlA'A ._. •_____ MSIJTA.'Cf IXCA5E...... Pfl[PAL\TION__ invol\'edi.n re.movingsuch waste. On appeal to the W',sconsin AppellateCourt, the trial court's ruling was reversed and the caseremanded for further hearings to detennine whether the trustee's conduct waswillful or intentional. CONCLUSION Traffic Accident Reconstruction Environmental la111sare colliding with the BankruptcyCode a t an ever-increasingrate and the consequenceof such a collision may foreverchange the role of the bankruptcy courl Cowrn· AL BE R T ME DINA ment lawyersare being Cacedwith the decision o( whether or 'TmfficJita:itfmt Consuftan t ill.Jconstructionist not lo filethe go.-emment's"claim" in the bankruptcy court or litigate its "daim" in another forum. The conflicts between P 0 , BOX 2(093' MONTGOMERY,M.AIIAIM 36124 (205) 277-71129 bankruptcy laws and environmentallaws are comp0unding the many complex Issues dealt with in the bankruptcy court and thereby placing an additional level of exp;?rtiscon the lawyers practicing in that court. • 258 /JULY 1993 THEALABAMA LAW YER DISCIPLINARYREPORT Suspe nsions misconductfor a lawyert o commit a criminal act that reflects • Birmingham attorney Chester L. Brown ha.s been sus adversely on his fitness to practice law, and Rule 8.4(g) which pended from the practice of law by the DisciplinaryCommis provides that it is professional misconduct for a lawyer to sion of the AlabamaState Bar, pursuant to Rule 25(a). Rulesof engage in conduct that adversely reflectson his fitness to prac DisciplinaryProcedure (inter im). This suspension is a result of tice law.On August5, 1992, Morganentere d a plea of guilty in reciprocal discipline set by the California State Bar, being the circuit court of Etowah County to unlawful possession or retroactive to November1 7, 1988, for a period of seven years, marijuana in the second degree and assault in the third degree. suspension being stayed on the condition that the respondent IASBNo. 92-263] serve five years actual suspension. The respondent must also • On May 21, 1993, Dothan attorney Charles B. Adams make restitution and retake the ethics portion of the California receiveda public reprimand in two consolidatedcases . Adams State Bar and the Alabama State Bar examinations. IRule 25(a) was appointed to represent two individuals in conjunction with Pet. #92-04] their criminal appeals.Adams failed to file briefs in those cases • The Supreme Court of Alabama,effective April 19, 1993, even though the court of criminal appeals advised him that suspended Robert W. Graham from the practice of law in the this failure constituted presumptive ineffective assistance of courts of the State of Alabama. Graham'ssuspension was based counsel under Alabamacase law. One appeal ended up being on an order of the Disciplinary Commission of the Alabama dismissedand new counsel was appointed in the other case. In State Bar, suspending Graham from the practice of law. [Rule one instance, Adams cited his wife's illness and trial prepara· 20(a) Pet. #93-01[ tion in other cases. He offered no excuse in the second case. • The Supreme Court of Alabama.effective April 9, 1993, The Disciplinary Commission found that Adams had violated suspendedJam es Edmund Odum, Jr. from the practice of law Rules 1.1, 1.2 and J.3 of the Rules of Professional Conduct. in the courts of the State of Alabama. Odum's suspensionwas IASBNos. 91 -391 and 92-529[ basedon an order of the Disciplinary Commissionof the Alaba • Birmingham attorney Mark D. McKnight was publiclyrep ma State Bar suspending him from the practice of law. !Rule rimanded May 21, 1993 on his plea of guilty of violating the 20(a) Pet. #93-02[ Rulesof ProfessionalConduct in three separatecases. • The Supreme Court of Alabama, in an order dated April 17, In ASBNo. 90-400, a client deposited$32,500 in McKnight's 1993, suspendedTa lladega attorney Jack E. Swinford from the trust account which was to be used to satisfy a lien on the practice of law in the state of Alabama. The suspensionis to be client's residence.On the date of closing, another attorney in for a period beginning April 27, 1993 and ending 90 days fol McKnight's officediscovered that McKnight's trust account did lowing Swinford's release from incarceraiion he is presently not contain $32,500, but, in fact, contained less than $3,200. serving for criminal convictionsof criminally negligent homi Despitethis fact, McKnightp roceeded with the case and deliv cide while in violation of Code of Alabama, 1975, §32-SA- ered to the financial institution a check drawn on his trust 191(2), and assault in the U1irddegree. Swinford'ssuspens ion account in the amount of $32,500.This check was subsequent is based upon an order of the Disciplinary Commissionof the ly returned for insufficient funds. Thereafter, McKnight bor AlabamaState Bar suspending him for said convictions, pur rowed money in order to make th is check good. The suant to Rule 22(a)(2),Ala .bama Rules of DisciplinaryProce DisciplinaryBoard determined that McKnight's conduct violat dure (Interim). !Rule22(a)(2) Pet. #93-021 ed DR9-102(8)(4) which providest hat a lawyers hall not mis appropriatethe fundsof his client. Publi c Reprim ands ln ASB No. 90-933(AJ, McKnight was contacted by the • On March 26, 1993,A labama lawyerE dward Lewis Hohn Grievance Committee of the Birmingham Bar Associationin was publicly reprimanded. in absentia, by the AlabamaState connection with its investigation of possible misuse of trusl Bar. Said reprimand was administered pursuant to Rule 25(a), funds by McKnight. Afterrepeated requests from the Grievance AlabamaRules of Disciplinary Procedure (Interim), which pro Committee, McKnight ultimately produced his trust account vides reciprocal discipline for Alabama lawyers disciplined in recordswhich showednegative ba lances for the months of Jan other jurisdictions. uary, Februaryand March 1990.The Disciplinary Board deter By order of the Supreme Court of Arizona, dated July 15, mined that McKnight'sconduct violated OR9 -102(8)(3),ohich 1992, Hohn ,oas publicly censured by that body for violating providesthat a lawyer shall maintain complete records of all certain disciplinary rules. The violations arose out of Hohn's funds, securitiesand other propertiesof a client. wrongfully filing a /is pendens and sending a claim letter to an In ASBNo . 9J-189(A), McKnightwas employedto represent Alaskan insurance title company in a wrongful attempt to clients in an uncontested divorce proceeding. He prepared the freezeassets of another party. !Rule 25(a) Pet. 1192-031 necessarypapers which the clients signed but he failed to file • Gadsdenattorney John S. Morgan was publicly reprimand the paperswith the court. Thereafter,McKnight represente d to ed. May21, 1993 for violation of Rule 8.4(d)of the Rules of Pro his clients that the divorce papers had been filed and that they fessional Conduct which provides that it is professional were legally divorced. Subsequently, the clients went to the THE ALABAMALAWYER JULY1993 I 259 courthouse and discovered that the divorce had never been filed and they were not divorced from each other. The Disci plinary Boardde termined that McKnight's conduct constituted a violation of DR 6-101 which provides that a lawyershall not Christian willfully neglect a legal matter entrusted to him. In addition to the public reprimand. the Disciplinary Boa.rd Legal Society further determined that McKnight should be placed on proba· tion for a period of two years, beginning January I , 1993. Dur ing the probationary period. McKnight is to submit monthly reports from his accountant, his psychiatrist and his Alco The Alabama Chapter of the Christian legal holic's Anonymous sponsor. [ASBNos. 90-400. 90-933(A)& 91-189(A)J Society will hold a breakfas1at lhe state bar's • Montgomery attorney James R. Cooper, Jr. was publicly annual meeling in Mobile Friday, July 16 al 7 reprimanded May2 1, 1993. Cooper had represented a female client in a child custody proceedingagainst her first husband. a.m. The guest speaker will be Asso ciat e Veryshortly U1ereafter.he withdrew from further representa Justice Hugh Maddox of the Supreme Court of lion of her and later sued her for divorce on behalf of her sec ond husband. When the parties came to Cooper saying they Alabama. Tickets will be available at the annu- wanted to reconcile,h e had the wife sign an affidavith olding al meeting registration area. For more informa him harmless from "any and all causes of action conceivable" and further stating that she felt there was no conflict of inter tion, contact Keith Watkins at (205) 5&6-7200. est in his filing the divorce action. Cooperentered a guilty plea to violating Rule l.8(h) which proscribes a lawyer's prospec• livelyli miting his liability to a client [ASB No. 92-2681 • Montgomeryat torney J. Richard Piel was given a public reprimand May 21, 1993. Piel was found to have willfully neglected a legal matter and, in so doing, also failed to com· municate with his clients. Piel handled a real estate closing and recorded the documents in the wrong county. The clients' WE SAVE YOUR copies of the closing documents were sent to an incorrect TIME ... address and, thus. were never received by them. It took the clients nine months to straighten out the situation. This occurred only after the clients hired another lawyer to assist Now legal researchass isiance them. Piel defended himself on U1egrounds that his secretaries is nvnil:,ble when you need ii. never made him aware of the problem. Also, Rule 5.3 makes a L E G A L wi1hou11he nece ssi1yor lawyer responsible for supervised employees' conduct if it adding" full-time associate or Resea r c h would be unethical if committed by the lawyer. [ASBNo . 92· clerk. 385) • On May21. 1993 Birminghamattorney Gregory D. Jones Wi1haccess to the State Law Library and Wcstlaw.we was publiclyr eprimanded by the Alabama State Bar for willfully provide fat,-1and cfficicn1 service . For deadline ,,.•ork. we neglecting a legal matter entrusted to him, for failing to carry can deliver infonnation 10 you via co1nmonca rrier, out a contract of employmenten tered into with a client for pro· FederalExpres s. or FAX. fessional services, and for prejudicing or damaging his client during the course of the professional relationship. Fnmcll Legal Research examineslh e issues1horoughly Jones agreed to represent a client in a personal injury mat through quality research, brier writing and analysis. ter. He was advanced a filing fee to process the la1,•suit on Our rates are $35.00 per hour. with a three hour behalf of the client However,J ones allowedthe statute of limi 1ninin1un,. tations to run on any claim that the client had for negligence. The client then filed a complaint against Jones. During the For Research Assistance con tact: investigation of this matter, it was discovered that Jones was Sarah Kathryn Farnell not aware that the statute of limitations for a wantonness 112 Moore Building claim on behalf of the client had not expired, but he had still failed to pursue a civil lawsuit on behalf of the client. The Montgomery, AL36 104 investigation further disclosed that Jones attempted to have Call (205) 277-7937 the client sign a release releasing Jones from any and all liabil ity concerning his representation of the client, in considera tion of SI. The Disciplinary Commission ordered that Jones Nofe/Yf1Sf!O/ario'1 "imde tiatthe Q<-E101Y cl rile lege/ St'l\1CeS IO be petfarrred isgrease, 11""1 rne qualtycl lega/SM n March of this year. the used in the court's 199L dec ision of Den Alabama Supreme Court nis u. Amuricanl-/onda, 585 So. 2d 1336 "The reports released the long-anticipat (Ala. 1991). In Dennis. the court held ed decision in Williams u. that it was error to charge the jury on Deltalntemational Machin contributory negligenceof a plaintiff in of my death ery (Arp .• No. CV-8804573, the use of one product (a Yamahamotor slip op. (Ala.March 12, 1993). lVi/Iiams cycle) while a separate product (motor had previouslybeen released,withdrawn cyclehelmet being worn by the plaintiff) are greatly and the court had all but announcedthat was Lheproduct alleged to be defecti\/e. it wouldadopt some formof comparative The court overturned a defense verdict negligence. It did noL The final deci on behalf of Honda, choosing to release sion, with no grounds assigned,declined that opinion even though the case had exaggerated" to adopt comparative negligence and previouslybeen sellled. retained contributory negligenceunder As a result of the t>ennisdecision, two Alabamaproducts liabilityl aw. The deci years of apparent confusion occurred -Ma rk Twain sion nol Lochange contribulory negli with both the bench and the bar. The gence also avoided the necessity of plainllfrs bnr argued ·•contributory neg addressingthe queslion of joint and sev ligence In products liabilityis dead" and e_ralliability. While the decision not to immediatelymoved to strike the defense adopt comparative negligence captured of contributory negligtnce in many the headlines.th e most important addi products liabilityrues. Theuncertainty tional issue decided by the court in created by Denniswas reflectedby Jus ll'illiams was the reaffirmation of the tice Houston. writing for the court in defense of contributory negligence in Williams,when he stated: products liabillly cases under Alabama •... iBlecausethere appears Lobe some substanli,-ela"'· confusionas to the proper lnterpretatlon The confusedstatus of Alabama's law of Dennisu. /\mericanHonda Motor Co .• on contributory negligence as a proper we direct the altcnlion of the Bench and By D. Alan Thomas defense arose as a result of language Bar to the specificho lding in Dennis.... " and Nancy S. Akel THEALABAMA LAWYER JULY 1993/261 Williams, slip op. at 4. Justice Houston to AEMLD actions, in Alkins v. Ameri of the "fau lt concept" ingrained in went on to explain the factual situation can Motors,335 So.2d 134 (Ala. 1976), Alabamasubstantive law and in Alabama of the accident made the basis or that this Court seemed to indicate that the products liability law prior to 1976. In case, that the plaintiff was alleged to defense is available only under certain fashioning what was termed tl1e Alaba have negligentlyu sed a Yamahamotor defensive theories. e.g., 'plaintift's mis ma extended Manufacturer's Liability cycle while the products liability claim use of product'." Doctrine ("AEMLD"),Lh e court speciri concerneda Hondahelmet he was wear Id. (citations omitted) (emphasis cally retained this "fault concept" as a ing at the time of the accident. The added) prerequisite for the finding of liability court slated: In this language, the Alabama on the part of a defendant manufactur· ''If the cont ributory negligence Supreme Court has reaffirmedthe exis er. While the court stated that fault or instructio n had been limited to the tence of contributory negligence in "scienter'' would be suppliedas a matter plaintiffs failure to exercise reasonable products cases stemming back to the of law if a product was sold in a defecti~-e care in his wearing of the helmet (i.e., adoption of the AlabamaExtended Man condition/unreasonably dangerous and could have been related to an alleged ufacturer's LiabilityDoct rine. if that defective condition was a proxi product misuse), then such an instruc mate result of the plaint ifrs injuries, tion would have been proper under this Historical background allowing Alabama to retain the fault Court's previous interpretations of the In 1976. the AlabamaSup reme Court based affirmative defenses, including AEMLO." decided the twin oses or Atkins v. contributory negligence. Id. at 5. Justice Houston pointed out AmericanMotors Corp. , 335 So.2d 134 From Casre/1and Atkins, this concept that: (Ala. 1976), and Casre/1u. Allee Indus of fault permeated the Alabama deci "The trial error in De,miswas in not tries, Inc., 335 So.2d 128 (Ala. 1976). sions which followed.The basic premise limiting the contributory negligence The supreme court al that time had was that a plaintiff who contrib uted charge to the plaintifrs use of the hel been urged to adopt "str ict liability" to his/her own injury (fault) could not met as opposed to the plaintiffs alleged under RESTATEMENT(SECOND) O F TORTS§. recover damages even if the defendant negligent operation of his motorcycle." 402A (1964). In deciding those cases, ,vas also at faulL ''The injury may Although contributory negligencehas the court declined to adopt strict liabili be imputed as much to the negI igence been recognized generally as a defense ty due to long-standing Alabamahistory of the plaintiff, as of the defendant; and, if so, the defendant was not liable, and so should the law have been stated to the jury." Betheav . Taylor,3 Stew. 482 ------HEALTH CARE AUDITORS , INC . ------(Ala. 1831). Alabamacases decidedsub sequent to the adoption of the A[;;MLD 1- IC ~I consistently held the concept of fault H EAL TH CARE AUOITO.RS. INC. (negligence)of the plaintiff to be fatal to a plaintiffs product liabilitycase, follow ing long-standing Alabama law. E.g., MEDICAL/DENfALMAIPRACilCE EXPFRTS Johnsonv. NiagraMach. & Tool Works, 555 So.2d 88 (Ala. 1989) ("[Tjhe con • GRATISME DICALTEAM P REVlEWOFYOUR CASE: Anindepthevaluatlon to duct of the plaintiff in certain cases may ascenalnand dell ne causation, liabilitya nd breachesIn staJ1dards ofcare . be so lacking in reasonable care for his • GRATIS CLINICALCONFERENCES: We shall ca refullytake )'OU 11ep b ystep, through own safety that reasonable minds may eachcase lO Insure that )'OU r clinicalknowledge lscommensurate with oo~ .We shall be brutal ly not differ on the issue ol the·plaintifrs 9!!J!MIf case l"'1drores no men1,or If causationIs poor. own negligence"); Harley-Davidson,Inc. u. Toomey, 521 So.2d 971, 974-75 (Ala. • GRATISOJJIIICAL REPRESENTATIVFS TO YOUROFFlCE: ind(,plh mi~1 . 1988) ("Upon raising Lhe affirmative • GRATIS, DETAILED, WRITl'ENREPORTS: Shoulda case be un"'Orthy of purniil , defense of con tributory negligence, and upon)'OU directl,oes, we shallbe plealed 10 l'orward a de1ailed rq,on. defendant has the burden of proving that (I) plaintiff failed to use due care • HCAJBasic FEEI.a $275. YouIncur oocOS1Sun 1il)!!!Jchooseiopu!SlJe theexperrswork · for his own, or ... his property's safety, upfor hi s affidavit.No retired experts , nofore ignexpens . andno ooUI\ worn expens . HCAJIs1101 and (2) tl1at such a failure wa.sa proxi a SimplerelerTal SCIVice aswe have pl'Oli dedll lig.,llonsupport l'or orer 700 8nnsthroughouuhe mate cause of the inj ury," quot ing U.S. Weha\'e earned o ur reputationprudentl) ', (orbolh p lamilf& defense. American Pumilure Galleries,fnc. v. McW(me,I nc.. 477 So.2d 369, 372 (Ala. [ STAT STAT AFFIDAVIT SERVICE AVAIIABLE J 1985)); General Motors Corp. v. Edwards, 482 So.2d 1176, 1192 (Ala. HCA!Medlcal Utlgatlon Support Team Telep hone (813) 579-8054 1985) (Alabama Supreme Court specifi FeatherSound f.«poone Center Tel.ecopler (813 ) 573-1333 2 Co 262 / JULY1993 TMEALABAMA LAWYE R Tractor Co. v. Ford,406 So.2d 854, 856 was universally accepted and applied held that contributory negligenceof the (Ala.1 981) ("In addition to the general basedon the fundamental concept that a plaintiff in the use of the product was a denial defense, the defendant may also plaintiffcou ld not recover for an injury valid defense to products liability affirmatively raise the negligentcon duct which he either caused or contributed to actions. For example: In Core v. Ford of the plaintiff in using the product, ...."). cause. Througho ut the decisions Motor Co., 601 So.2d 953 (Ala. 1992), See also Fenley v. Rouselle Corp., 531 released from Casre/1t o Dennis,the con the plaintiff decedent was not wearing So. 2d 304 (Ala.1988); Sears, Roebuck & tributory negligence defense was "con his seatbelt and died when his vehicle Co. v. Haven Hills Farm, Inc., 395 So. tributory negligence in the use of the was involved in a one-car accident, rolled 2d 991 (Ala. 1981). Cf. Wallacev. Doege, product", an inescapable common and landed on its roof. In defense of 484 So.2d 404 (Ala. 1986) (plaintiff thread. plaintiff's crashworthiness claim, the found to be contributo rily negligent defendantasse rted plaintifrs contributo after failingto tum off the powers upply Denni s v. American Honda ry negligence in failing to wear a seat· to a fish saw beforea ttempting to clean In Dennis,a solely unique fact situa belt. Although the only issue on appeal it). tion existed. The trial jury was charged was whether the State of Alabama should In addition, contributory negligence as to contributory negligence. The only abandon contribu tory negligence in usuallywas accompaniedby terminology contributory negligence alleged by the favor of comparative negligence, the regarding the plaintifrs "usage of the defendant was the plaintifPs use of the defense verdict was affirmed and in product". As Justice Houston pointed Yamaha motorcycle. The problem was doing so, the court, in dicta, acknowl out in Williams,the Casrelldecision dis that the Yamaha motorcycle wasnot the edged that the plaintifrs failure to wear cussed contributory negligence in the product alleged to be defective. There his seatbelt is properlyconsidere d in the context of the plaintiffs use of the prod was no claim made that the plaintiff was contributory negligence defense. uct. This terminology was adopted in negI i gent in his use of the Honda hel This issue, the contributory negli the Alabama Pattern Jury Charge syn met, although assumption of the risk gence defense, was preirously considered onymously using the terms contributory was a viable and affirmatively pied by the Eleventh Circuit in Fer_qusonv. negligence and misuse in the products defense. Bayerische Motoren Werke, A.C., 880 liabilitycontext. In reversingAmerican Honda's verd ict F.2d 360 (11th Cir. 1989). The plaintiff APJl 32.19 against the brain-damaged plaintiff, the received personal injuries in a one-car Contributory NegligenceDefense court distinguished between contributo accident and brought suit under AEMLD The defendant charges that the ry negligence in the use of the product alleging that the vehiclewas not "crash (user)(consumer) (wascon tributorily and contributory negligencenot associ worthy". One of the defenses asserted negligent in the use of the product) ated with plaintifrs use of the product was that plaintiff was contributorilyneg- (misusedthe product). allegedto be defective. The court's hold 1igent in her failure to use the safety The notes regarding the jury charge ing was not a change from the prior 14 restraint system provided in the vehicle additionally state that misuse has not years of AEMLDdecisions on contributo under Alabama law. The Eleventh Cir been specifically defined in Alabamaand ry negligence, but rather a limited dis cuit affirmedt he jury verdict in favor of that the Alabama Supreme Court had tinction made in that unique factual the defendants and thus affirmed the not made a distinction between" intend situation. The court, however, did cite DistrictCo urt's jury charge on contribu ed use" and ''misuse" or whether there from a number of "strict liability"juris tory negligence which included discus was any differencebetween " misuse" and dictions in its discussion of product sion of the plaintifrs failure to wear her "contributory negligence". "misuse" versus ordinary contributory seatbelt. See also Gulledge v. Brown & Misusewas also advocatedi n the small negligence, while assumingly ignoring Root, Inc., 598 So.2d 1325 (Ala. 1992) number of produ cts liability cases the "fault"-based concepts ingrained (Court defined contributory negligence brought solely under implied warranty throughout the history of Alabamap rod as plaintiffs "faillurel to exercise ordi theories where traditional "fault-based" uct liability law. Justice Maddox clearly nary care to discoverand avoid the dan defensessuch as contributory negligence pointed out the confusion in his dissent ger and the injury" . Id. at 1327. would not be available. This obviously in Dennis. (Citationand emphasis omitted)). blurred the distinction betweent he con The language used in Dennis regard tract-based warranty actions and negli ing the plaintiff'snegligence i n the "cau· MISUSE, AND (NOT INSTEAD gence-basedAEMLD ac tions. sation" of the accident, unexpectedly OF) CONTRIBUTORY The court's "misuse" versus "contribu provedto be somewhatun fortunate, set NEGLIGENCE IN THE USE OF tory negligence" distinction apparently ting off a plethora of motions in the trial A PRODUCT existed in name only. Semantics aside, courts to strike the defenseo f contribu· Unfortunately, after Dennis. a pattern the standard/burden of proof for the tory negligence in products liability jury chargewas adopted which employed defendantwas plaintiffs failure to exer cases. The apparent confusion which (apparently with no specificcase author cise reasonablecare for his own safely, resulted was limited to the local bench ity) a different definition and burden of whether called contributory negligence and bar, but did not rise to the appellate proof for the defense of "product mis or misuse. That standard, outlined in court level. use·•. APJI 32.19 (Revised)and 32.19.1. the Alabama Pattern Jury Instructions, Decisions releasedafter Dennisclearly Product misuse was defined in that jury THE ALABAMALAWYER JULY1993 1263 charge as a use that wasnot foreseeable 01 • uefeclive product which, Manufacturer's Liability Doctrine by the defendant manufacturer. While be1.<1useof its unreasonable,unsafe con (AEMLDJ. t3 Am. J. Trial Advoc..983. befort, the distinction between misuse dition, injured plaintiffor damaged his 1040(1990). and contributory negligence in the use property when such property, substan The AlabamaSupreme Court notedin of the product was primarily semantic. tially unaltered, was put to its 1977that misuse could be a defense to the "nl!W"definition ignored the long. intended use. Atkins, 335 So.2d at 139. an AEMLO action in the case ofMcCaleb held definition of contributory negli This concept of a separate defense of v. Mackey Poi,11Mfg. Co.,Inc.. 343So.2d gencebased upon the relativefault of the "misuse··was also noted in the 1992case 511 (Ala. 19n). The court noted that parties. The traditionalstandard of con of Kellyu. M. TriggEnterprises, Inc., 605 the plaintiff in McColeb had used the tributory negligencewas that the plain So.2d 1185 (Ala. 1992). t n Kelly, the product Involved in a manner not tiff failed lo exercise reasonable care in court stated that ii was affirming the intended by the manufacturer. The disregardfor his own safety which was a principal that misuse Is a defense under insinuationwas that while misuseco uld proximate cause (even if not the only the AEMLDciting Bonner Welders, Inc. be considered as a defense,i ts origin was cause)or his injury. v. /(nigh/on . ~25 So.2d 441 (Ala.1982) . in the origlnnle lements of the plaintifl's If the product misuse definition is in As the authority for this defense the prima fade case under the AEMLD. If fact Alabama law, then there is now a court did not cite from any previous the standard by which misuse is Lobe new defense: producl misuse. The test Alabamadecision. bul rather from a Jaw judged Is the Intendeduse contemplated or "product misuse" ts the manufactur reviewarticle which stated: b)i the manufacturer,it appearsthere are er's subjective foreseeable use of the "(wlhen asserting misuse as a defense now two different defenses,misuse and product as opp0sed to the reasonable under AEMLD, the defendant must contributorynegligence, with two totally core or the plaintiff in his use of that establishthat the plaintiffused the prod separatestandards of proof. product. This Is in additionto the plain uct in some manner differentfrom that tiffs burden to prove that the product intended by the manufacturer. Slated MISUSE VERSUS was being used for its "intended use• at differently.plainlifrs misuseor the prod CONTRIBUTORY NEGLIGENCE the time or the accident uct must not have been 'reasonablyfore Many factual situations involveboth ... ITlhe gravamenor the action is that seeable by the seller or manufacturer··. contributorynegligence (failure to exer· the defendantma nufacturedo r designed Edward C. Marlin. Alabama Extended cise reasonable care in the use of the PROBATEBONDS COURTBONDS CHAP7..13 •AwniniGtr ator's Executor'$,Per~onal Representative·~ llonds .cuard!"n(Conservators/Committee llo11ds UP'l'CY .Teu\.a:r.enary Trustees Bond:; •Receivers Bonds •Tr ustet:: in Liquidation Bonds •Trustee lr, Reorganization Bonds sorrwARE •At~achmcnt/CB.l'nislur.ent Bond!: .Replevin Bonds •In ju ncti on Bonda •Indemnity to Sheriff New OfficialForms •AppeaJ , Supe rsedeas, Stay of" Executi on Bonds plus When you need o bond Just Coll New TypeSetOption JackMc Carn CourtApproval Guarantee • ComputerCounsel Seal awardedby Law Office MickieMc Carn Edwards AutomationCenter . Independent testers of legal software. ForProfessional Service Call (313) 398-9930 251-4062 FAX: 328-0247 for test report , Realty lnsumnce Agency Jnc references and demo disk PO B0X55l75 11llt1U119ham,Alotx,mo 35255 SPECIALTY SOFTWARE Phon<>C205)251-4062 FAX 328-0247 Box 7026 • Huntin gton Woo ds, Ml48 070 264 /JULY 1993 THEALABAMA LAWYER product in question) and misuse (an trailer accident and goes to work as an than the plaintiffs, the above principles unintended use). ror example, our operator of a table saw with a dado cut ('when asserting misuse as a defense plaintiff-to-be is ''BubbaJoe ," the driver ting blade. On the day of the accident under AEMLD, the defendant must of a tractor-trailer truck on the ill-fated to-be, Bubba Joe is cutting woodstock establish that the plaintiff used the day of his accident. Prior lo the acci with the table saw (a use intendedby the product in some manner different from dent, he consumeda fifthof Jack Daniels saw manufacturer ). Unfortunately, that intended by the manufacturer'! are which may or may not have been the Bubba Joe is preoccupiedin discussing equallyapplicable." Kelly, 605 So.2d at reason Bubba Joe failed to connect the an upcoming wrestl ing match wilh 1192. air brakesto the trailer he was using. In another worker and while his head is Theoretically,it might be possible to the ensuing accident BulibaJoe was in turned, Bubba Joe suffers an injury to have misuse without contr ibutory jured. Bubba Joe's alcoholic consump his dominant bowling hand. While negligence when the user of the prod tion while attempt ing to operate a BubbaJ oe. may not have been misusing uct is also the plaintiff. There are not 80,000 pound truck and trailer clearly the table saw, he clearly failed to exer any reported Alabama cases on the sub may have been one of the proximate cise reasonable care in the use of the ject. As a practical matter, however,a causesof his injury. In a product liabili· saw and was contributorily negligent. plaintiffs use of the product in an unin ty action against the truck manufactur· Can a product be misused (thereby tended manner probably also would er, Bubbamay have been contributorily supplyinga defenseto a product manu carry with it by implication a failure to negligent when he was unable to stop facturer ) without the plaint iff being exercise due care in the use of that the truck at a "T" intersection while contributorily negligent? Let's assume product. traveling 85 MPH (failure to exercise our fictit ious Bubba Joe comes home reasonablecare for his own safety in U1e from work and attempts to trim his THE WILLIAMS CASE use of U1etruck). Bubba'sactions may hedge with his Yazoo lawnmower. In The Alabama Supreme Court in that have also been a product misuse (very this familiar example or stupidity, unanimous portion of Williamsv. Della few tractor-trailer manufacturersintend Bubba Joe not only is injured, but is lnlemational MachineryCorp. specifi· to havetheir products operatedat speeds guilty of negligence and a misuse or the cally put to rest the apparent confusion greatly exceedingthe legal pasted limits product. But let's assume that instead created by Dennis. Just ice Houston by an intoxicatedperson. They certainly of Bubba Joe dropping the Yazoolawn writing for the court clarified precisely do not intend to have the truck operated mower on himself, he dropped it on his the very limited holding of ''the rule of with the air brakesdisconnected.) lovely wife, Sallie Jo, who was sun Dennis". AsJuslice Houstonwrote, the In most situations, both contributory bathing on the other side of the hedge. trial court erred in Dennisby failing to negligence and misuse may be present. Sallie Jo was completely innocent limit the contributory negligence However, many accidents occur when of any negligence on her part (other charge to the use of the product alleged the plaintiffis using a product in a man than marrying Bubba). However, there to be defective. Clearly, had a contribu· ner intended by the manufacturer, but is still a misuse of the product. While tory negligence charge been related to in his or her use of the product the the result may seem somewhat harsh, the use of the Honda helmet, it would plaintifffails to exercisereasonable care the misuse of the lawnmower would have also been proper. On the other and is injured. l'or example,our ficti prevent Sallie Jo from recovering in a hand, had the plaintiffs case been tious BubbaJoe recoversfrom his truck- case against the manufacturer. The against the manufacturer of the motor critical test of "product misuse" is not cycle he negligentlyoperated, a contrib necessarily the conduct of the plaintiff. utory negligence charge regarding the D. AJan Thoma s The test, whether couched in terms operation of the motorcycle(specifically 0 Alan Thomes is a of the plaintiffs burden of proof or as having to do with the causation of the graduateof AuburnUnl ver,ity and Cumbertand the defendant's affirmative defense, is accident) would have been proper. This SChOOIo( Law. Samf0 THE ALABAMALA\.\'YER JULY1993 I 265 Williams,slip op. at 5. (emphasisadded) Williams itself. The specific question ing contributory negligence. including Two important issues are resolved in in that casewas not whether the table st\oenteenyears with contributory neg. the court's language. First, it is proper saw and dado blade were being used ligence in products liability cases is a to charge a jury regarding contributory in the manner for which Delta Machin• strong foundation for the defense of negligence in the use of the product ery intended. There was absolutely no contributory negligence. The defense alleged to be defective. Second, the issue raised that the plaintiff used the of contributory negligence should not proper standard ror contribulory negll. table saw in an unintended manner. be dismissed so easily, as a result or gencc In a Alabama product~ liablllty The sole quest ion was whether the confus ing language found In one case is whether the plaintiff exercised plaintiff exercised due care for his own unique case. reasonable care in his or her use or safetywhile using the saw. In Williams, Contributorynegligence is very much operat.ion of the product. The standard the plaintiffs' conduct which was the alive under the AEMLD, as is the sepa· for contributory negligence is not basis for the reaffirmation of contribu· rate and distinct affirmative defense of whether the product was used in the tory negligence was specificallyrelated product misuse. Alabamacontinues to manner intended by the manufacturer to the causation of the accident, not retain a · rault·basedconcept" of liability (misuse) or whether the user knew, some type of improper use of the prod in product liabilityclaims. The baseline understood and appreciated a danger uct. That is the test of contributory proposition underlying Alabama's con· (assumption of the risk), but rather a negligence under Alabama product lia· cept of •fault" is founded upon the con test of lhe plaintiffs conduct, based on bility law. cept that any party, whether derendant his foull or negligence, which deter· The campaign insisting that contrib· or plaintiff, should be responsible ror mines his ability to recover under utory negligencewas executed by Den· his or her 0111nactions and any result· Alabama law. nis o. AmericaHonda has been strong. ing consequences. Even today, respon· The most obvious exampleo f contrib· A unanimous court in Williamshas put sibility for one's own actions makes not utory negligencein the products liabili those rumors to resL One hundred and only good, judicial sense, but common ty context is found in the facts of sixty-twoyears of Alabamalaw regard- sense as well. • r------, ADDRESS CHANGES Completethe form belowONLY if there are changes to YoUr listing in the current AlabamaBar Directory.Due lo changes in the statute governing election of bar commissioners,wt noware required to -usemembers ' officeaddresses , unless none is availableor a member is prohibited from receiving state bar mail at the office.Additionally, the AlabamaBar Directoryis compiled from our mailing list and it is important to use business addresses for that reason. NOTE:If we do not know of an addresschange, we cannot make the necessarychanges on our records, so please notifyus when your addresschanges . Mail form to: Alice Jo Hendrix, P.O. Bo,c671. Montgomery. AL 36101. ---- ______MemberldenlificMion (Social Secur ity) Number Chooseone: 0 Mr. 0 Ml'$. lion. Miss D Ms. 0 Olher ___ _ F'ullName______ BU5i11CS$Phone Number ______8ir1hdatt ______Yearof Admission______ Firm ------ OrficeMailing Address------City ______State__ ZIP Code______County------ OfficeStrut Address(i( differentfrom 11111ilingaddrw ) ______ City______State__ ZIP Code______County------L------~ 266 /JULY 1993 THE ALABAMALAWYER REGISTERTODAY! • CONTINUlNG LEGALEDUCAT lON • ALUMNI LUNCHEONS • GROUP BREAKFASTS • SECTION MEET!NGS , FREE LEXIS®-NEXIS®TRAIN I NG AND MORE! Alabama State Bar Expo ·93 Thursday. July 15. 1993: 8:00 a .m.-5 :00 p .m. Friday , July 16, 1993: 8:00 a.m .-5: 00 p.m . Saturday . July 17, 1993: 8:00 a.m .- Noon Azalea Room, First Floo r West Publishir:ig 11:- ..... More,l'ay s roII m 11111 FORMS OF LAW IBE MICHIE COMPANY ~ ALABAMA LAW fOUNDAllON . INC LEXIS·· NEXIS'{$~ ~ Merrill Lynch THE ALABAMALA V.'Y ER JULY 1993/ 267 RECENTDECISIONS By DAV!DB. BYRNE,JR . and WILBURG. SILBERMAN appeals affirmedhis convictionby mem Another man stood in the background SUPREME COURT OF orandum opinion. and brandished a brick or cinder block. ALABAMA The supreme court disagreed and After the men had taken his wallet and reversedReese 's conviction. In doing so, run away, the victim summoned the Right to cou nsel and proof of the court followed the general rule that police. A young man identified by the waive r the reto unless it is shown that the accused was victim as the brick welder was captured representedby counsel, or waivedcoun Ex parte Reese,27 ABR2072 (March near the scene. The victim's supervisor 19, 1993). Reese pleaded guilty to pos sel, at the time of the prior conviction, also recovereda black hat and turned it session of marijuana "for his personal the conviction is nol available for con over to the police. sideration under the Habitual Pelony use only after having been previously This hat had the name "Joe Bean" convictedof unlawfulpossession of mar Offender Act. The courl then aclmowl written inside it. This was the street ijuana for his personaluse only", a viola· edged the application of this ru le in name of DerrickWilliams, brother of the tion of §13A-12-215, Code of Alabama Reese's case by stating, "Nor is an defendant, Barry Williams.F'or th is rea (1975).As evidence of Reese's prior con uncounseled conviction available for son. Derrick Williams' photograph was viction, the Stale introduced a certified consideration under §13A-12-213". The included in a photographic lineup record of Reese's conviction in Dothan court disagreed with the State's argu shown to the victim. At the photo line Municipal Court. The docket sheet bore ment that the stamped nolation on the up, the victim identified Derrick a stamped notation indicatingthat Reese dockel sheet was sufficientevidence t hat Williamsas one of the individualswho had waivedhis right to counsel prior to Reesemade a valid waiver of his right to robbed him. pleadingguilty. counsel, holding that: Derrick Williams was arrested. There On appeal. Reesecha llenged the use of The record of Reese's previous convic after, Eva Mae Williams, the mother of his prior conviction for enhancement tion, though not completely silent, does Derrick and Barry, came to the police purposes, contending lhat the State had not sufficiently sho"' that Reese was station and informed police lhat it was failed to prove that his prior guilty plea offered counsel and that he knowingly Barry, and not Derrick, who taken part was not obtained in violationof his righl and intelligently rejected that offer. in the robbery. BarryWilliams was then to counsel. The court of criminal "A defendant may waive his or her arrested and charged with first degree right to counsel in writing or on the robbery. record, after the court has ascertained Prior to trial, defense counsel filed a Iha/ the defendant knowingly, i11/e//i motion seeking disclosure of exculpato genfly, and voluntarily desires lo forego ry and othe r material evidence. The Iha/ right ." Rule 6.l(b), A.R.Crim.P. court entered a mandatory discovery BAR There is no evidence lhat the judge in order. When defensecounsel wenl to the the municipal court engaged in the col police station to view the evidence, he DIRECTORIES loquy necessary to ascertain U1atR eese was shown a black raincoat that had knowingly,inte lligently, and voluntarily been recovered from WiII iams. He was desired to foregohis right to counsel. also shown some photographs, but not the ones used in the lineup. Defense State 's failure to produce couns was nol shown the black hal, nor 1992-93 exculpatory evidence was he provided with a copy of the vic E.r parle Williams, 27 ABR2421 (April lim 's staiement made shortly after the EDITION 16, 1993). Williams was convicted of robbery, wherein the viclim described first degree robbery, arising out of an the man with the knife as wearing"cam AlabamaState Bar incidenl wherein Joe Tolbert was robbed ouflage" coverallsand made no menlion outside his place of employmentby four or a blackraincoat. Members: $25 each men. At trial, the victim testified that At trial. Williams moved to exclude Non-members: $40 each one of the men wore a white shirt and the black hat and certain other State jeans, and that this man placeda gun to exhibits that had not been produced Se-ndche ck or money otdc.,lo ; his head and demanded the victim's pursuant to the discoveryorder. and this AlabamaBar Directory money. He stated that another man motion was initially granted. The black P.O.Box 4156 wearing a black raincoat and black hat hat. however, was admitted into evi Montgomery,Alabama 36101 placed a knife al his throat. At trial. the dence after defensecounsel questioned a victim identified this man as Williams. witness about it. Counsel also sought 268 / JULY1993 THE ALABAMALAWYER "'Desk. ~ AlabamaLaw on Disc NOW includes the Code of Alabama nee,thero¥WBttoresearch All on a compact,se lf THE ALABAMALAWYE R JULY 1993 / 269 the production or the photographicline violates due process where the evidence prevented defense counsel from prepar up to show the physical disparity is material either to guilt or to punish ing portions of the defense, especially between himself and his brother. This ment, irrespective of the good faith of with respe ct to the inconsistencies Lineupwas produced only after defense the prosecution. In order lo show a between the victim's statement and his counsel had cross-examined the victim Brad.Ifv iolation, some prejudice to the trial testimony. "Counsel should not be regarding his misid,mtification at the defendant must have resulted from the forced to improvise at trial simply lineup. nondisclosure of potentiallyexculpatory because the State has failed to comply In reversing Williams' conviction, the evidence. In Ex parte Kennedy, 472 with a mandatory court order." The supreme cour t disagreed with the So.2d 1106 (Ala.),cert. denied,474 U.S. court ~pecifically rejected the argument Slate's argument that Williamswas not 975 (1985), the proper test for deter that "a defendant who has engaged in harmed by its violation of lhe discovery mining whether the State's conduct 'lhorough and sifting' cross-examina order because Williams knew priQr to constituted reversible error was set out: tion 1"lth respect lo Items not disclosed trial that his brother had been arrested; The defendant must demonstrate that has suffered no prejudice." accordingly, he was not prejudiced by (I) the Stnte suppressed the evidence: the delayed disclosure of the pho (2) the evidence suppressed was favor Fifth Amendment-right to tographs, the black hat and the state· able to the defendant or was exculpato remain silent after request for ment. ry; and (3) the evidence was material counsel Is made CitingBrady v. Maryland,373 U.S.83 The court determined that the material Ex partc Johnson.27 ABR2643 (April (1963), the court stated that the sup ity of the photographsand black hat was 23, 1993). Johnson was convicted pression by the prosecution of evidence beyond question and that the State's of burglary in the first degree with favorable to an accused upon request failure to disclose this evidence totally the intent to rape_ Prior to his arrest , Johnson was questioned by the police as a suspect in the burglary. The ques tioning occurred after one of the im>esti gatl ng officers had given Johnson a standard ized Miranda warning. At trial, the officer leslified about his ques tioning of Johnson: "I asked him about the burglary- I asked him if he knew anything about it. He said that he had heard about the bur glary across from the church where he lived.And he said that he had heard that from the news. .. ! asked him about- I showed him a picture of the knife that had been reCO\-eredfrom the scene and asked him If that was his knife. And he would not tell me if it was his knife. I asked him lo tell me- " At this point, defensecounsel objected and moved for a mistrial on the grounds that any commcnl on Johnson's silence was a vlolallon of his constitutional right to remali, ~ilent. Counsel's request for a mistrlnl was denied. Thereafter.the Sure, doing businesstoda y Our parentcompany, Old officer continued his testimony as fol Involvestaking chances, but RepubllcNatlonal Title Insurance lows: MississippiValley ·nue Is thereto Company,ls the nm 11tleInsurer to "I asked him to tell me il wasnl his handleceri.in unforeseenrisks. eam an A+ stabllltYrating from J knife, and he wouldn't tell me it wasn't Forover half a century,we·ve St.Uld.a!d& Poor's, and to hlt J either. tJkena stmy handIn evaluating ThomsonlnsuranceWatch's M • I talked to him a little bit after that. I alternatives,and we've madesound. squarelyon the mark.So. when you I carclullytargeted business do busi~ with M1SS1ssipplValley ! talked lo him about the incident again I and tried to get him to talk to me about dedslons... all to securea srable Title,)'Oll're maklng a M11al1business i financialbase for our cu,wmers. decision. the incident. He wouldn't talk about the incident, and he later asked if he could MISSISSIPPI VALLEY TITLE have legal help. I considered lhal him •• INSURANCE COMPANY asking for an atlorney, and no further questioningwas done al that lime." Jackson,Ml "l"lpplIIO I QoQ 0222 • ln·StaicI 80011<)221 I~ • Ou,ol \I'll' J 800~7·2124 No objectIon w,is made to this testi- 270 /JULY 1993 Tl IE Al.ASAMALAWYER mony. On ap~I. the court of criminal what he termed an "uncorroborated 2597 (April 23, 1993). Ln two cases with appeals affirmed Johnson's conviction, anonymous tip". The trial court denied varying results, the supreme court once holding that •·[a[ny improper comment Barnette's motion, and he was subse again acknowledgeda single instance of on the appellant's exerciseof his Miran quently convicted. The court of criminal racial discrimination, i.e., the prosecu· da right to remain silent in reference to appeals affirmedwithout opinion. tion's use of one peremptory strike in a his failure to answer a question about Bamette petitioned for certiorari, cit· racially discriminatory manner, is suffi the knife was cured when the officertes ing Alabama v. White, 496 U.S. 325 cient to establish a Batsonv iolation. tified without objection that subse (1990), as authority for his claim that In Bankhead,the court held that the quent ly the appellant 'wouldn't talk "the stop violated the Constitution and prosecutor's removal of a black ju ror about the incident, and ... asked if he the motion to suppress shou ld have based on an "unexplainable gut reaction could have legal help."' been granted," because the "anonymous that he was bad" was not sufficiently The supre me court disagreed and tip.. .lacked significant details that could race neutral so as to rebut Bankhead's reversed Johnson's conviction, holding be independently corroborated by police prima facieshowing of raciallydiscrimi that it is fundamentally unfair and in to provide' sufficientind ica of reliability natory jury strikes and ordered that violation of due processof law to inform to justify the investigatory stop."' The Bankhead's capital murder conviction a person under arrest that he has a right supreme court agreed, and reversedBar · and death sentence be reversed. The to remain silent and then permit an nette's conviction. court ackno,"ledged that a trial court's inference of guilt from that silence. The The court based its decisionon Alaba rulings with regard to Batson violations court went on to hold that "virtually any ma v. White, stating that just as veraci were entitled to great deference, but in description of a defendant's silence fol ty, reliability and basis of knowledge are this instance, the trial court's determi lowingarrest and a Mirandawarning" is relevant in the probable cause context, nation tha t no Batson violat ion sufficient to constitute a violation of these critical factors are also relevant in occurred was "clearly erroneous". Doylev. Ohio, 426 U.S.610 (1976). the reasonable suspicion context, In Carter, the court noted that although allowance must be made in although the trial judge had erroneously Fourth Amendment applying them for th e lesser showing concluded tha t a single instance of suppression of evidence required to meet the reasonable suspi· racial discrimination was insufficientt o obtained as result of cion standard. Nonetheless, the court establish a Batson violation, the trial uncorroborated held, "an anonymoustip can provide the court's finding that the prosecutor had anonymous tip reasonable suspicion necessary for an not engaged in any "purposeful discrim Ex par/e Bame/le, 27 ABR 2643 (April investigatory stop, if the tip is sufficient ination" was not clearly erroneous and 23, )993). Barnettewas arrested for pos ly corroborated by independent police upheld Carter's convictions for first session of cocaine. He moved to sup investigation." degree robberyand attempted murder. press the evidenceagainst him, alleging Ln this case, however, the court held that his stop by the police was improper that the anonymoustip contained mere because a ''reasonab le suspicion" of ly a range of details relating to easily BANKRUPTCY criminal activity could not be based on obtained facts and conditions existing at the tim e of the tip, i.e., thatb two lack males dressed in a particular manner Supreme Court rules on David B. were at a specificl ocation. Anyone could "excusable neglect" with ref• Byme, Jr. have predicted the location of the black erence to late flied claims David 8. Byrne,Jt. isa males, their race and a general descrip l)(aduat&od the Unwet · PioneerInvestment Services Compa sayof Alabama. where tion of their clothes, because that was a ny v. Brunswick Associates ltd. Par/· he reoeivedbOth his undeto,adua1eMd lew condition presumably existing at the nership, 61 U.S.L.W.4263 (1993 W.L. degreesHeisemem· time of the call. The anonymoustip did 79640-S .Ct.), March 24, 1993. bcr of Ille Mon,gome,y hrmol Rooiscn& S.ISO< not contain facts which are ordinarily Altho ugh this case has already been Md COV&tt.th& cn trinal not easily predicted, but which would reported extensively in bankruptcy pul> -. . have demonstrated a familiarity with lications, it may be very useful to the Barnette's behavior. Additionally, when non-bankruptcy practitioner who may Wilbur G. the officers stopped Barnette, they had fail to file a claim prior to the claims bar Silberman not corroborated the tip by independent date (or by analogy misses any other Wilbur G. Silberman, ol tne Bitmlrtghamfirm ol investigation sufficient to furnish rea deadline established by the Bankruptcy Gordon,Silberman . sonable suspicion that Barnette was Codeor Rules). Wigg:n s & Childs, engaged in criminal activity. In Pioneer,an experiencedbankrupt attendedSamford Univets1tyand the cy lawyeroverlooked t he bar date for fil. Universityot A!abama One discriminatory strike ing a proof of claim for a substantial and earned nis law de sufficient to establish creditor. The attorney was moving from gree fromthe Universi· ty's. SchOOIot Law He Batson violation one firm to another, and missed noting covers the bankruptcy Ex parte Bankhead, 27 ABR 257 I the bar date which was set out on the deC THE ALABAMAL<\WYER JULY 1993/ 271 Although Bankruptcy Rule 9006(b)(3) Unsec ured creditors commit victims of the trustees of bankrupt limits the bankruptcy court's authority tee circumvents priority freight companies suing for under lo extend the claims bar date and pre creditors charges. if you paid without a fight you cluded any extension In this c.ise, the In re SP,11Manufacturing Corp.,984 should be sorry. The Supreme Court attorney attempted a lale filing on the F.2d 1305 (First Cir. 1993). The credi now has ruled thal in such action theory of •excusableneglect" as provid tors' committee. representing over SS brought by the trustee, the shipper ma~· ed in Bankruptcy Rule 9006(b)(J). The million or unsecured debt. made an tile a counterclaim on the basis that the case went through the various steps of agreement with the primary secured data on file with the FCCwas not rea the court system from the bankruptcy creditor whereby such creditor and the sonable. Prior cascs,principally Maislin court to the district court to the Sixth committee could take action to replace Industriesv. Primary Steel, 497 U.S. 116 Circuit. The Sixth Circuit held that in the CEO of the debtor, join lly agree (1990), had held that a ship-per could determining whether to grant an exten upon a plan of reorganization, and work not claim a defenseof "an unreasonable sion of time to allow a claim filed late, together lo reach agreements on other practice" in an action based upon the certain guidelines or factors must be details of the plan. In return, th e freight undercharge. The Interstat e considered,t o wit: secured lender would allow the unse Commerce Act requires that carr iers Prejudice to the debtor: cured creditors class certain percentages publish and file tar iff rates with the An lmpact on eflicient court adminis of its recovery,to-wil: 10 percent on the Commission. Arter the deregulation of tration: first S3 million, 20 percent on the next the industry, it became common prac Delay beyond the reasonable control $3 million. 30 percent on the next S3 tice for the carriers to negotiate with of lhe person who had the duty to per million. 40 percent on the next S3 mil the shippers, then upon the carrier form; lion. and 100 percent on anything addi bankrupting, the trustee or debtor-in Goodfaith by the creditor;and tional. The agreement primed the IRS possession under Chap-ter I I filed for That the failure resulted from negli and potential Insider creditors. After the differencebetween the actual charge gence, indifference, or culpableconduct conversion of the Chapter I l case, the and the establishedrate. either from the counsel lo the creditor Chapter 7 trustee sought to set aside the In the instant case, the shipper or the creditor itself. proposed distribution. The bankruptcy claimed not that the practice was unrea The Supreme Court adopted the first judge held in favor of the tTustee,stat sonable, but, rather, that the filed tariff four , bul said that lh e last was not ing that the parties could not agree on a rates were unreasonab le. The Inter acceptable as creditors are accountable distribution contrary to the priority sec state Commerce Act requires that such for the actions of their attorneys. The tion or the bankruptcycode, and the dis rates be reasonable, and it allows ship Court ruled tha t the proper focus is trict court affirmed. On further appeal, pers a cause o( action for repara-tion upon whether the neglect was excus the First Circuit reversed, stating that damages of the differences between able. The Court examined the notice the secured creditor could deal with the 1,•hal is filed and what is reasonable. which was sent to all creditors and proceeds as it wished since they Here, the Fourth Circuit. following decided that It was faulty since the bar belonged to it and, thus. were not sub Maislin. held that lhe "filed rate " date had been placed in a peculiar and ject to the control o( the bankruptcy doctrine militated against this shipper inconspicuous place in the notice, and courL The circuit court also stated that seeking relief for reparation damages the wording did not indicate the signifi the creditors' committee is not a fidu in the same action as a claim against cance of the bar date. The Court also ciary for I he entire estate but only for the shipper on the freight under-charge. found that no prejudice had been caused the unsecured creditors. In response to This ruling was reversed by the to the debtor and lhat the creditor had the argument that the agree ment Supreme Court which allowedthe repa not acted in bad failh. Thus. in a five betweenthe committee and the creditor rations claim as n counterclaim to the four decision, the Court held that the was in conOict with general bankruptcy trustee's freight undercharge claim. ll neglect was excusable. Jaw and policy, lhe Court ruled that a also said that Rule 54(b) F.R.C.P.. as The dissent from Juslice O'Connorwas commillee must act in good faith and to a separate judgme nt, was within quite strong, She slated that the issue of without ulterior motives, such as aiding the discretion of the Court. and would excusable neglect depends upon cause competing businesses, acting out of be appropriate for a solvent carrier and fault, that if the rnilureis not blame malice, and forcing higher payments but not for an insolvent one, or lessthe consequencesare irrelevant from the eslate. The Court upheld the one in bankruptcy. The Court stated In footnote four or the majority opin agreement in this instance b«ause the that the doctrine relative to the filed ion. the Court states that the excusable committee was only obtaininga share of rate embodiesthe principle that a ship neglect standard of Bankruptcy Rule what otherwiisewas going to the secured per is not able to avoid paymentof the 9006(b)(J) concerns Chapter II cases part)' and did not hurt anyoneelse. tariff rate, by using the common only. This esape valvedoes not apply to Jaw defenses of prior agreement as Chapter 7 cases. and probably not to U .S . Supreme Court allows to a different rate, or estoppel. but cases under Chapter 12 or 13. Although cou.nter clalm In fre ight that such doctriM does not pro this case will allowmuch litigation for a undercharge suits hibil using the statutory reparations court to determine excusable neglect, Reiter u. Cooper, 113 S.Cl. 1213 claimas an affirmative defense or the Jawh as not greatly changed. (1993). f'or attorneys who have been counterclaim. • 272 /JULY 1993 THE ALABAMALAWYER LEGISLATIVEWRAP-UP By ROBERT l . McCURLEY,JR. The Alabama Legislature adjourned sentative will usually have to file an Anniston, Senator Doug Ghee of Annis May 17, 1993 after passing Law Institute inventory within two months and exe ton, Senator Don Hale of Cullman, and bills to amend the Administrative Proce cute a bond or give collateral generally Senator Michael Figures of Mobile. dure Act, revise the Probate Procedure equal to the amount under the personal Law and enact a new Limited Uability representative's control.. less the value of Limited Liability Company Act Act. property that only can be sold or con (S-54 9) (Act 93. 724) Failing to receive final passage were veyedwith court authority. 1':venthoug h The Limited Liability Company Act reapportionment of the Legislature and the bond is waived in a will, it may, nev will become effectiveOctobe r l, 1993. It tort reform bills. Dying in the Senate ertheless, be required under limited cir is a hybrid entity that combines the ben were bills to set the percentage of con cumstances, such as the likelihood of eficial tax status of a partnership with tingency fees attorneys can receive; lim waste occurring otherwise. the limited liability afforded by corpo iting pun itive damages to five times The act parallels the conservatorship rate structures. Under the current feder compensatory damages, not to exceed law in that it enumerates actions that al taxing structure, a limited liability $250.000; limiting contribut ions to the personal representative may take companycan be treated as a partnership judges; limi ting a manufacturer's rather than as a corporation. Thus, the extended liability: and limiting time double taxation of members of a limited periods for suits against architects and liability company is avoided. engineers. A limited liability company is formed when two or more persons file articles Administrative Procedure Act of organization. Articles of organi1.ation (H-93) (Act 93 °627) are very similar to articles of incorpora The act, effectiveJu ly I, 1993,a mends tion lhal are filed under the Alabama §§41-22-5, 41-22-6, 41-22-12.41 -22-20, Business Corporation Act. Filing of doc and 41-22-22. The clarifying amend uments is very similar to that of the ments relate to U1ecomment period for business corporation act in that they are proposed rules, completion of notice initially filed with the local probate and effective date of rules, jud icial judge's office. review,and time for taking appeals.New Generally,the management of a limit· provisions were included to allow for ed liability company is vested in its subpoenas, discovery and protect ive members. However,t he articles of orga orders. Further, new proposed ru les nization may vest management of the must be accompanied by a fiscal note, a company in one or more managers who note on the effect the regulation will without prior court approval unless the then have the power to manage the have on competition, and the effect the ,viii or cou rt specifically othe rwise business of the company. regulation will have on the environment restricts the action. It further enumer Similar to a business corporation, the and public health. ates action that may only be taken with liability of a member of a limited liabili This bill was sponsored by Repre.sen prior court approval when not expressly ty company is limited to his or her con tative Jim Campbell of Anniston and authorized in the will. There is a specific tribution. However, if the LLC involves Senators Frank 1':llisof Columbiana, requiremen t for the court to approve performing professional services, the Ryan deGraffenried, Jr. of Tuscaloosa, the sale of real estate. individual who performs the services John Amari of Birmingham and Wafter Another major change by this act is to will still be liable for any negligence or Owensof Centerville. provide that a personal representative is wrongful act or omission in the same entitled to a reasonable compensation manner as if that individual rendered Prob ate Procedure (H -19 3) for services. The court must approve the servicesas a sole practitioner. (Act 93 · 722) fees using specified factors similar to The bill further provides that foreign This act is effective January I, 1993. It those enume rated by the Alaba ma limited liability companies may be regis codifiest he present law that upon death Supreme Court by Rules of Professional tered in Alabamaprov ided they pay cer the deceasedpe rson's real property pass Conduct, Rule 1.5 for reasonable attor tain fees and meet certain requirements. es to the heirs while personal properly ney's fees. Furthermore, the bill provides that a passes lo the personal representative to The probate bill was sponsored by limited liability company may merge or be distributed to the heirs. Unlessa will Representative Marcel Black of Tus consolidate with other limited liability provides otherwise, the personal repre- cumbia, RepresentativeJi m Campbell of companies or other business entities. THEALABAMA LA WYER JULY1993 / 273 ALABAMA DIVORCE , ALIMONY AND CHILD CUSTODY HORNBOOK Third Edition, 700 pages, hardbound TABLE OF CONTENTS REORGANIZEDFOR CONVENIENT Chapter Qt.nCK REFERENCE t l.cvalid Ma.map And A1u,utinc1u Abb:lmn Oi,'()m:. Alimony ond Ould Cunody ? Scp11~don or P>tth To Muri•ge Hnmbook. Third Edition. is the most J AntcnupulJ ~c:mc.nu comprchcnsi\,: book on Alab,ullll diwrce bw .C Posuiuptbl Agrc:cmcntl S 1 IA WYERS EDUCATIONALPRESS Po1t DOlcoBea 1287 Tuta-1, AL 35486 Pk;s;e tcnd me _ coplu of AUBAMA OIVORCB. AIDtONY A.~0 CmJ> CUSTODY RORNDOOK., Third Edllion, .it S79.40 cac:b ($70.00 plu, S9AOt.u. pc»&Dp and h111ndtlng).AU CC'dcn m\11 1 be PJU!PAlO. M=ikccbcc:b payable.lO LAW'YllRS EDUCATIONAL PRESS, It 001 ~ rlitlcd you nu, rc1um Ille t,oot wilbln lO dllp for I Cu.IIrc:fl.lnd , NA.~E·------~ -- PHONE._~~~- --~ ARM~~~~~~~~~~~~~~~~~~~~~~~ ADDRESS._~~~~~~~-- ~~~------~ art ______STATE.______ZIP_ __ _ 274 /JUL.Y1993 THEALABAMA LAWYER This bill was sponsored by Senator 100 (Act 93-676) providestha t a person Plaza Hotel in Mobile during the state Steve Windomo( Mobile and Representa who is guilty of shoplifting must pay lhe bar's annual meeting. tive Hugh Holladayor Pell City. full retail value of the merchandisei f it is For more information, contact Bob not recovere d in its full retail mer McCurley,direc tor, Alabama Law Insti Court s chantable condition, pay additional dam tute, P.O. Box 1425, Tuscaloosa, Alaba The Legislaturepassed two acts affect ages to the retailer of S200, and pay an ma 35486. Phone (205) 348-7411. • ing the appellate courts. Senate Bill 303 attorney's fee. Parents of shopliftingch il (Act 93-346) created two additional dren are civilly liable for their children's Senate Hou se judgeships on the court of civil appeals shoplifting up to $750. Senate bill 219 GeneralBills and provides the first judges to fill lhe (Act93 -606) providesfor a newo offense f Introduced 513 665 judgeshipsbe elected.T he second bill, S- sexual torture and makes the offense a (passed) (64) (116) 304 (Act 93-345). amends § 12-2-7 to Class A f'elony. Senate bill 422 (Act 93- Local BUls authorize the supreme court to transfer 677) revises the present bail system for Introduced 83 255 to the court of civil appeals certain civil bail bondsmen. Senate bill 503 (Act 93- (passed) (27) (156) cases appealedto the supreme court. 203) amends §8-19-5 relating to the deceptive trade practice law. AppropriationBills Child supp ort Introduced 80 87 (passed) House bill 280 (Act 93-321) amends Annual meeting (8) (61) §30-3-61relating to income withholding The Alabama Law Institute's annual TotalB ills order for child support. I-lousebill 419 meeting will be held at 4 p.m., Thursday, Introduced 676 1,007 (Act 93-325) makes the willful violation July 15, 1993, at the Stouffer Riverview {passed) (99) (333) of any provision of a temporary or per manent protection order or restraining order involving domestic relations or family violencewill be a Class A Misde meanor with additional mandatory mini RIDING THE CIRCUITS mum penalties. Crim e bill s Walker County Bar Association House bill 3 (Act 93-327) and I-louse The following attorneys were elected officersfor 1993: bill 4 (Act 93-719) provides new crimes for offenses relating to animals used in Pres ident: Secretary : research and unlawful killing or live JAMESC. KING MARGARETDABBS stock. House bill 14 (Act93-720) requires Jasper Jasper motorists to use lights on motor vehicles when windshield wipers are in use as a Vice-president: Treasure r: result of rain, sleet or snow. House bill HENRYC. WILEY, JR. TOMNICHOLSON 508 (Act93-352) provides for the suspen Jasper Jasper sion of the driver's licenseof anyonecon victed of violating drug crimes. House bill 322 (Act 93-323) imposes an addi tional $100 assessment on persons con victed or driving under the innuence to be deposited in the Impaired Drivers' Trust f'und. Senate bill 94 (Act 93-672) BAR DIRECTORIES requires parents to insure that a child enrolls in and attends school. Senate bill 1992-93 EDITION Robert L. AlabamaB ar Members:$ 25 each M ccu rley, J r. Robert L McCwley. J1, Non-members: $40 each Is 1t,,edi rector of Iha Alabama Law Institute Sendc: htckor moneyord tr to: a11ho Universiiyor Alabama Bar Directory Alabama. He received hlsu ndergraduate and P.O.Box 4156 law degrees from the Unlve,slry Montgomery, Alabama36101 Tl-IEALABAMA LA WYE I~ JULY1993 I 275 Notice ELEVENTH CIRCUIT APPOINTS DISCIPLINARY COMM ITTEE MEMBERS Rules Governing Attorney Discipline In lhe United States Court ol Appeals for the Eleventh Circuit (Addendum Eight) took elfeot October 1, 1992, following public notice and opportunity for comment pursuant to 28 U.S.C. @2071(b). Pur suant to Rule 2.A. of the rules. the nine persons named below have been appointed to the Committee on Lawyer Qualill catlons and Conduct. On relerral by the Chief Judge, this committee Investigates alleged misconduct by members ol the 11th Circuit bar and rerommends to the Court appropriate discipfinaryaction to be taken. Membership on this committee win change from time to time. Committee on Lawyer Qualifications and Conduct James C. Barton Michael S. Pasano Jot,nston, Barton, Zuckerman, Speeder, Proctor. Swedlaw & Naff Taylor & Evans AmSouth/Harbert Plaza 201 S. Biscayne Boulevard 1901 Sixth Avenue. Nor1h Suite 900 Birmingham, Alabama 35203 Miami, Florida 33131 Ginny S. Granade Alan C. Sundberg Chlel, Criminal Division Carlton. Fields, Ward, U.S. Attorney's Office Emmanuel, Smith & Cutler 169 Dauphin Street. Suite 200 P.O. Box 190 Mobile. Alabama36602 Tallahassee, Florida 32302 Roland Nachman , Jr . Frank W. Seller Balch & Bingham Bouhan, Wllhams& Levy P.O. Box78 P.O. Box 2139 Montgomery, Alabama 36101 Savannah, Georgia 31498 Marvin E. Barkln Cubbedge Snow, Jr. Trenam, Simmons, Kemker, Martin, Snow, Grant & Napier Scharf, Sarkin, Frye & O'Neill P.O. Box 1600 P.O. Box 1102 Macon, Georgia 31202 Tampa, Florida 33601 Larry D. Thompson Kfng & Spalding 191 PeachtreeStreet Allanta. Georgia 30303 tnfonmatlon and copies of Addendum El_ghtmay be obtained from the Office of the Clerll , U.S. Court of Appeals for the Eleventh Circuit, 56 Forsyth Stree1, N.W.. Atlanla, Georgia 30303. Phone (404) 331-6187. 276 /JULY 1993 TMEALABAMA LAWYER ALABAMASTATE BAR SECTION MEMBERSHIPAPPLICATION To join one or more sections, comp le1e 1his form and allach separale checks payable to eac h sec1lon you wish to join. Name ______ Firm or Agency------Office Address Office location------ O!Oce Telepho ne Number ______ Section Annual Dues ___ Administrative Law ...... $20 ___ Bankruptcy and Commercial Law ...... $20 ___ Business Torts and Antitrust Law ...... S 15 ___ Communications Law ...... S 15 ___ Co TOTAL Remember: Attach a separate check for each section. Mail 10: Sections, Alabama S1a1eBar , P.O. Box 671, Montgomery, AL 3610 1 THEALABAMA LAWYER JULY1993 / 277 CLASSIFIED NOTICES RATES: Members: 2 free listings of 50 words or less per bar member per calendar year EXCEPT for "position want ed" or "position offered" listings - $35 per insertion of 50 words or less. $.50 per additional word; Nonmembers: $35 per insertion of 50 words or less, $.50 per add itional word . Classified copy and payment must be received according to the following publishing schedule: July ' 93 Iss ue- dead line May 28. 1993; September '93 issue - dead line July 30, 1993; no deadline extensions will be made. Send classified copy and payment. payable to The Alabama Lawyer. to: Alabama Lawyer Classifieds. c/o Margaret Murphy, P.O. Box 4156, Montgomery. Alabama 36101. • EMPLOYEE BENEFITS ATIORNEY: FOR SALE FOR RENT New Orleans firm seeks employee ben· eflts associatew ith 1·5 years· of EAtSA • LAWBOOKS:The Lawbook Exchange, • OFFICE SPACE: Birmingham, South· experience or an U .M. in taxation. The ltd . buys and sells all major lawbooks, side, 2,300 square feel. Williamsburg firm's practice encompassesall phases state and federal. nationwide.For all style office building, beautifullydec of employee benetits law, including your lawbooks needs. phone 1· 800· orated, free parking, $8.95 per square advice and planning with respect to re 422-6686.MasterCard . VISA and toot. Carpet, drapes, two private rest tirementand welfare plans, as well as AmericanExpress accepted . rooms, kitchen area, built-in oak an active ERISA litigation practice. Ex· shelves and cabinets. Phone (205) 939· cellent credentials, communicationand • RULES: Model Rules of Professional 1327. organizational skills required. Respond Conduct. Personalcopies available for to Hiring Partner. 8008 Jeannette $5 (Includes postage). Mall check to Place, New Orteans, Louisiana 70118. P.O. Box 671, Montgomery, Alabama POSITIONS OFFERED 36101. Pre-paymentrequired. • ATIORNEY JOBS: National and Feder SERVICES • LAWBOOKS: Save 50 percent on your al Employment Report. Highly regarded lawbooks. Call National Law Resource, monthly detailed listing of attorney and • DOCUMENT EXAMINER: Examination America'sl argest lawbook dealer. Huge law-relatedjobs with the U.S. Govern of QuestionedDocum ents. Certified inventories. Lowestprices. Excellent ment, other public/privateemployers i n Forensic Handwritingand Document quality. Satisfactionguaranteed . Call us Washington, D.C., throughoutthe U.S. Examiner. Twenty-six year's experience to sell your unneededbooks . Need and abroad. 500-600 new jobs each In all forensic document problems. For· shelving?W e sell new. brand name, Issue. $34 lor three months; $58 tor six meriy, Chief QuestionedDocument steel and wood shelving al discount months. Federal Reports. , 01 Ver· Analyst, USA Criminal Investigation prices. Free quotes. 1·800·279·7799. O mont Avenue, NW, #408-AB, Washing· Laboratories. Diplomate (certitied) National Law Resource. ton, D.C. 20005. Phone (202) British FSS. Diplomale (certifled) • LAWBOOKS: Williams . Hein & Co., 393-3311. VISA and MaS1erCard ABFDE. Member: ASQDE: IAI; SAFDE; Inc., serving the legal community for accepled. NACOL Resumeand fee schedule upon request. Hans Mayer Gidion, 218 over 60 years. We buy, sell, appraise • LABOR/EMPLOYMENTATIORNEY: Merrymont Drive, Augusta, Georgia all lawbooks. Send want lists 10: Fax Major Alabama law firm seeks lawyer 30907. Phone (706) 860-4267. (716) 883-8100or phone 1-800-828· for department in its Birmingham, 7571. Alabama office. Ten years or more • PARALEGALS: Attention attorneys and • LAWBOOKS: AFTR 1·52; AFTR 2d 1· experiencein the areas of labor and personneld irectors.The National 53; Tax Court (P-H loosefeat) 35-83; employmentlaw Is preferred. Superior Academy for ParalegalStudies has BTZ & Tax Ct. Memo 1-52; J Tax 1970· writing and academicskills are qualified paralegals in your local area 85. leave messageat (205) 677-4889 required. The attorney will be expected ready for employmentIn law offices and (day) or (205) 983-4972 (night). Michael to provide leadership and will have corporations.Our paralegal graduates Crespi, HoustonCounty Courthouse, immediate responsibility lor this impor are trained in areas of law. such as Dothan, Alabama 36303. tant area ol the firm's practice repre family, real estate. torts, criminal, pro senting management. Salary com bate, and corporatelaw . Student • LAWBOOKS: United Slates Code mensuratewith level of experience. interns are also available.There are no Annotated.current through end of Confidentialreply 10 P.O. Box 1986, tees for these services. For additional 1992. Call James Marks, (205) 383· Birmingham,A labama 35201-1986, information, call the Placement Office at 2435. Allention: Hiring Allorney. 1-800-285-3425, ext. 3041. 278 /JULY 1993 THEALABAMA LAWYER • EXPERTWITNESS : Traffic engineer, lion. Published nationally and interna expert testimony in construction, safety. consultanVexpertwit ness. Graduate, tionally. Eighteen years· trial experi hlghway and structural design. Thirty registered,professional engineer. Forty ence, state/federalco urts of Alabama. years' experiencei n highway, railroad. years' experience.Hi ghway a.nd city Forgery. alterations and document commercialbuild ings and power plant roadway zoning. Write or call for authenllctty examinations. Criminal and construction.Ca ll or write for resume, resume, fees. Jack W. Chambliss, 421 non-criminal matters.Am erican Acade fees: Lamar T. Hawkins, 601 Vestavia Bellehurst Drive, Montgomery, Alaba· my of Forensic Sciences.Am erican Parkway,B irmingham, Alabama 35216. ma 36109. Phone (205) 272-2353. Board of Forensic DocumentExami n, Phone (205) 823-3068. No represen ers. AmericanSociety of Questioned taion is made thar Iha quality of the • RESEARCH: Legal research help. DocumentExam iners. Lamar Miller, legal services to be performed is Experienceda ttorney, member of 3325 Lorna Road, #2-316, P.O. Box greater than the quality of legal ser Alabama State Bar since 1977. Access 360999, Birmingham, Alabama 35236- vices performed by other lawyers. to state law library. WESTLAWava il 0999. Phone (205) 988-4158. able. Prompt deadline searches. Sarah , FORENSICDOCUMENT Kathryn Farnell. 112 Mocre Building, • MEDICAL EXPERTTESTI MONY: HCAI EXAMINATION: Handwriting, typewrit• Montgomery. Alabama 36104. Phone will evaluate your potential medical/ ing, altered documents. Criminal and (205) 277-7937. No representation is dental malpractice cases for merit and civil matters. Medical records, wills, made that the quality of /he legal ser causation gratis. If your case has no contracts, deeds, checks. anonymous vices to be performed Is greater than merit or causation Is poor, we will pro letters. Court-qualified. Twenty-eight the quality of legal servicesperformed vide a free written report. State affi years· combined experience. ABFDE by other lawyers. davits are available. Please see display certified. Member, AmericanAcademy ad on page 262. Health Care Auditors. of Forensic Science,A merican Society • DOCUMENTEXAMINER: Certilied Inc .. 2 Corporate Drive, Clearwater, of QuestionedDocumen t Examiners, Forensic Document Examiner. Chief Florida 34622. Phone (813) 579-8054. International Association for Identifica document examiner. Alabama Depart Fax (813) 573-1333. tion. Carney & Nelson Forensic Docu ment of ForensicSciences , retired. ment Laboratory.5855 Jimmy Carter B.S., M.S. Graduate,universi ty-based , EXPERTWIT NESS: Professionalengi Boulevard, Norcross (Atlanta),Georgia residentsc hocl In document examina- neer and attorney with a practice of 30071. Phone (404) 416-7690. r------, AD DRESS CHANGES Complete the form belowONLY if there are changes to Your listing in the current AlabamaBa r Directory. Due to changes in the statute governingelect ion of bar commissioners, we now are required to use members' officeaddresses, un less none is available or a member is prohibited from receivingsta te bar mail at the office. Additionally, the AlabamaBar Directoryis compiled from our mailing list and it is important to use businessaddresses for that reason. NOTE: If we do not know of an addresscha nge, we cannot make the necessarychanges on our records,s o pleaseno tify us when your addresschanges. Mailform to: AliceJ o Hendrix, P.O. Box 67 l, Montgomery, AL36101. ______MemberId entification(Social Sec urity) Number Chooseone: D Mr. D Mrs. D Mon. r Miss ':I Ms. 0 Other _ __ _ FullNam•------BusinessPhone Number ______Race______Sex_ __ Birthdate______Yearof Admission______ OfficeMailing Add ress______ City ______State __ ZlP Code------County ______OfficeStreet Address( if different from mailing address) ______ City ______State __ ZIP Code ______County------L------~ THE ALABAMALAWYER JULY 1993 / 279 Willi WEsT'SEXCLUSIVE KEY NUMBER SYSTEM. Now finding the case law you • Cite to Southern Reporte~ 2d need Isas easy as typing the citation. or State reports. With this new West CD Reporter • Jump to cited cases and back with you can: the touch of a key. • lrnmedJately pinpoint relevant Call now to learn more about West cases with West Key Nwnbers. 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