Fundamental School Finance Reform Comes to Alabama

Home , Albert Brewer, Arthur Orr, Bill Poole, Del Marsh, Don Siegelman, George Brett (general)

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January 2012 | Volume 73, Number 1

Fundamental School Finance Reform Comes To Alabama

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January 2012 | Vol. 73, No. 1 40 46

58 FEATURES 28 Protect Yourself, Your Family and Your Business 29 Fall 2011 Admittees 37 Alabama Law Foundation– 25 Years of Making a Difference 40 Welcome to the Trophy Generation: Exaggeration of Your Legal Experience Can Lead to Trouble By Robert P. MacKenzie, III 46 Fundamental School Finance Reform Comes to Alabama By Frank D. McPhillips and Heyward C. Hosch, III 50 Legal Malpractice Actions under the Alabama Legal Services Liability Act: Alleged Involuntary ON THE COVER Attorney-Client Relationships and Attendant

Many areas of downtown Montgomery have undergone renova- Statute of Limitations Issues tions in the past few years and now included among them are the By Max Cassady former Scottish Rite Temple (once home to the Alabama Supreme Court) and the Alabama State Bar, both located on historic Dexter Avenue. The Alabama State Capitol can be seen in 58 Adverse Reaction without a Remedy the background of this photo taken earlier this month. By Steven F. Casey and David A. Lester –Photo by Robert Fouts, Fouts Commercial Photography, Montgomery, www.photofouts.com 64 2011 Pro Bono Honor Roll

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Gregory H. Hawley, Birmingham...... Chair and Editor ADVERTISERS ALABAMA STATE BAR [email protected] 415 Dexter Avenue Linda G. Flippo, Birmingham .....Vice Chair and Associate Editor [email protected] ACDLA...... 53 Montgomery, AL 36104 Wilson F. Green, Tuscaloosa...... Vice Chair and Associate Editor (334) 269-1515 • (800) 354-6154 [email protected] Alabama Mediation Center...... 78 Margaret L. Murphy, Montgomery...... Staff Liaison and FAX (334) 261-6310 Director of Publications www.alabar.org [email protected] Alabama MedScreen, Inc...... 63 Marcia N. Daniel...... Communications & Publications Assistant ALABAMA STATE BAR STAFF [email protected] The University of Alabama Executive Director...... Keith B. Norman School of Law ...... 43 Executive Assistant ...... Diane Locke Robert A. Huffaker, Montgomery...Chair and Editor, 1983-2010 Information Systems Manager...... O. Hunter Harris

Programmers...... Dolan L. Trout BOARD OF EDITORS Attorneys Insurance Mutual...... 2 Larry Pratt Marc James Ayers, Birmingham • Laveeda M. Battle, Hoover • Jennifer M. Scanning Operator ...... Kristi Neal Bedsole, Birmingham • Gregory C. Buffalow, Mobile • Henry L. (Max) Cassady, Jr., Fairhope • Rhonda P. Chambers, Birmingham • Lisa D. Cooper, The Bar Plan ...... 23 Web Administrator...... Willie Murphy Mobile • Katharine W. Coxwell, Monroeville • Patrick C. Finnegan, Mobile • Assistant Executive Director...... Edward M. Patterson T. Charles Fry, Jr., Birmingham • Amy M. Hampton, Alexander City • Walter Administrative Assistant ...... Christina Butler E. McGowan, Tuskegee • Jeffrey R. McLaughlin, Guntersville • J. Bradley Barksdale & Associates...... 82 Medaris, Birmingham • Joi T. Montiel, Montgomery • Richard D. Morrison, Director of Regulatory Programs ...... Angela Parks Montgomery • Anil A. Mujumdar, Birmingham • Sherrie L. Phillips, Cain & Associates Engineers...... 38 MCLE Administrative Assistant ...... Carol Thornton Montgomery • Stephanie M. Pollard, Auburn • T. Dylan Reeves, Birmingham Membership • Julia S. Roth, Decatur • Marc A. Starrett, Montgomery • John S. Steiner, Birmingham • Audrey O. Strawbridge, Vernon • Jason B. Tompkins, Administrative Assistant ...... Cathy Sue McCurry CLE Alabama...... 4 Birmingham • J. Robert Turnipseed, Mobile • Brian A. Wahl, Birmingham Regulatory Programs Administrative Assistant.....Rita Gray OFFICERS Director of Communications ...... Brad Carr James R. Pratt, III, Birmingham ...... President Cumberland School of Law ...... 27 Director of Publications...... Margaret L. Murphy Phillip W. McCallum, Birmingham...... President-elect Alyce M. Spruell, Tuscaloosa ...... Immediate Past President Communications and Publications W. N. (Rocky) Watson, Fort Payne...... Vice President Davis Direct ...... 79 Assistant...... Marcia N. Daniel Keith B. Norman, Montgomery...... Secretary Navan Ward, Jr., Montgomery...... Young Lawyers’ Section President Director of Admissions ...... Dorothy D. Johnson Admissions Administrative Assistants ...... Sonia Douglas BOARD OF BAR COMMISSIONERS J. Forrester DeBuys, III...... 38 1st Circuit, Ronnie E. Keahey, Grove Hill• 2nd Circuit, Cleve Poole, Greenville Crystal Jones • 3rd Circuit, Christina D. Crow, Union Springs • 4th Circuit, J. Garrison Bookkeeper...... Gale Skinner Thompson, Selma • 5th Circuit, Robert Simms Thompson, Tuskegee • 6th Stephen H. Emerson...... 49 Circuit, Place No. 1, Terri Olive Tompkins, Tuscaloosa • Place No. 2, R. Hays ASB Foundation Assistant...... Ann Rittenour Webb, Tuscaloosa • 7th Circuit, William H. Broome, Anniston • 8th Circuit, Graphic Arts Director ...... Roderick Palmer Phil D. Mitchell, Decatur • 9th Circuit, W. N. (Rocky) Watson, Fort Payne • Expedited Process Serving, LLC ...... 45 10th Circuit, Place No. 1, Leslie R. Barineau, Birmingham • Place No. 2, S. 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McDowell, Prattville • 20th Circuit, M. Hamp Baxley, The Locker Room ...... 25 Alabama Law Foundation, Inc. Director ...... Tracy Daniel Dothan • 21st Circuit, John L. Jernigan, III, Brewton • 22nd Circuit, John M. ALF Administrative Assistants ...... Sharon McGuire Peek, Andalusia • 23rd Circuit, Place No. 1, Harold Stephens, Huntsville • Place No. 2, L. Thomas Ryan, Jr., Huntsville • Place No. 3, Richard J. R. Raleigh, Jr., Sue Jones Huntsville • 24th Circuit, J. Dale Lawrence, Jr., Fayette • 25th Circuit, R. Wyatt Mahaney Law...... 24 Alabama Center for Dispute Resolution Howell, Hamilton • 26th Circuit, Kenneth E. White, III, Phenix City • 27th Circuit, Jerry Wayne Baker, Jr., Albertville • 28th Circuit, Place No. 1, Allan R. Director ...... Judith M. Keegan (269-0409) Chason, Bay Minette • Place No. 2, Sam W. Irby, Fairhope • 29th Circuit, Mississippi Appellate Practice...... 17 ADR Assistant...... Patsy Shropshire Robert L. Rumsey, III, Sylacauga • 30th Circuit, Elizabeth S. Parsons, Pell City • 31st Circuit, Braxton W. Ashe, Tuscumbia • 32nd Circuit, Jason P. Knight, ALABAMA STATE BAR CENTER FOR Cullman • 33rd Circuit, Robert H. Brogden, Ozark • 34th Circuit, Rebecca The National Academy of Green Thomason, Russellville • 35th Circuit, J. Milton Coxwell, Jr., PROFESSIONAL RESPONSIBILITY STAFF Monroeville • 36th Circuit, H. Jerome Thompson, Moulton • 37th Circuit, Distinguished Neutrals...... 11 General Counsel ...... J. Anthony McLain Roger W. Pierce, Auburn • 38th Circuit, Don Word, Scottsboro • 39th Circuit, Secretary to General Counsel...... Julie Lee John M. Plunk, Athens • 40th Circuit, Gregory M. Varner, Ashland • 41st Circuit, Alexander M. Smith, Oneonta Assistant General Counsel...... Robert E. Lusk, Jr. Professional Software Corporation...... 62 AT-LARGE BOARD MEMBERS Assistant General Counsel ...... Samuel S. Partridge Walter E. McGowan, Tuskegee • Claude E. Hundley, III, Huntsville • Meredith Assistant General Counsel ...... Jeremy W. McIntire Shay Peters, Andalusia • Merceria Ludgood, Mobile • Alicia F. Bennett, Chelsea Restaurant Expert Witness ...... 85 • LaBarron N. Boone, Montgomery • David K. Howard, Florence • Monet Complaints Intake Coordinator ...... Kim Ellis McCorvey Gaines, Montgomery • Ashley Elizabeth Swink, Gulf Shores Disciplinary Clerk...... Bonnie Mainor The Alabama Lawyer (USPS 743-090) is published six times a year by the Client Security Fund Coordinator ...... Laurie Blazer Alabama State Bar, 415 Dexter Avenue, Montgomery, Alabama 36104. Periodicals postage paid at Montgomery, Alabama, and additional mailing Paralegals/Investigators...... Dianne T. Gray offices. POSTMASTER: Send address changes to The Alabama Lawyer, Cheryl L. Rankin P.O.Box 4156, Montgomery, AL 36103-4156. Carol M. Wright The Alabama Lawyer is the official publication of the Alabama State Bar. Views and Receptionist ...... Sherry Langley conclusions expressed in articles herein are those of the authors, not necessarily those of the board of editors, officers or board of commissioners of the Alabama State Bar. Subscriptions: Alabama State Bar members receive The Alabama Lawyer as part of their annual dues payment; $15 of this goes toward subscriptions for The Alabama Lawyer. Advertising rates will be furnished upon request. Advertising copy is carefully reviewed and must receive approval from the Office of General Counsel, but publication herein does not necessarily imply endorsement of any product or service offered. The Alabama Lawyer The Alabama Lawyer The Alabama Lawyer reserves the right to reject any advertisement. Copyright 2012. GRAPHIC DESIGN PRINTING The Alabama State Bar. All rights reserved.

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CONTRIBUTORS

g Steven F. Casey is a partner in the Birmingham office of Jones, Walker, g Waechter, Poitevent, Carrère & Denègre LLP. Casey is a litigator with a diverse practice involving the defense of claims arising from business dis- putes, aviation accidents, products liability and mass torts. Casey serves as national counsel for a major pharmaceutical manufacturer and as regional counsel for others. He successfully defended the first failure-to- warn metoclopramide case to go to a jury in the country. 74 Max Cassady graduated from the University of Alabama School of Law in 1990. He served as law clerk to the Honorable Alex T. Howard, Jr. of the United States District Court, Southern District of Alabama (1990- COLUMNS 1992). Cassady is a board-certified civil trial advocate by the National Board of Trial Advocacy. He practices with his wife, Utopia Cassady, at 8 President’s Page Cassady & Cassady PC in Fairhope and Evergreen. The 2012 Legislative Session 10 Executive Director’s Report Robert L. McCurley: A Career of Service Heyward C. Hosch, III is a shareholder at Maynard, Cooper & Gale PC. 14 Important Notices He practices in the area of municipal, public and commercial finance. Notice of Election and Electronic Balloting Judicial Award of Merit David A. Lester is an associate in the Birmingham office of Jones, Walker, Changes to Client Security Fund Waechter, Poitevent, Carrère & Denègre LLP. Lester is a litigator and regular- Annual Assessment ly represents clients in aviation cases, business litigation, class actions, product Alabama Lawyers’ Hall of Fame liability cases, and mass torts. He is also the web editor for the American Bar Association Mass Tort Committee and vice chair of the Tort Trial and 18 Memorials Insurance Practice Committee of the ABA’s Young Lawyer Division. 22 The Appellate Corner 74 Opinions of the Robert P. MacKenzie, III received his undergraduate degree from the General Counsel University of North Carolina and his Juris Doctorate in 1984 from Representation of multiple plaintiffs Cumberland School of Law. He is a partner at Starnes & Atchison LLP against the same defendant—is it in Birmingham. ethically permissible? 76 Legislative Wrap-Up Goodbye and Hello 80 Disciplinary Notices Frank D. McPhillips is a shareholder at Maynard, Cooper & Gale PC. He is a member of the firm's public finance and economic development and f 84 About Members, incentives practice groups. y Among Firms 86 Classified Ads

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PRESIDENT’S PAGE

The 2012 Legislative Session

t The Alabama State Bar plays a very costs. There have been many bills over important role in supporting state gov- the years addressing various aspects of ernment, and I anticipate we will contin- court costs, including a number of local t James R. Pratt, III ue our efforts to be of assistance when bills. This is a huge project given the the regular legislative session begins complexity of the issue and the number [email protected] early this year. A great deal of work has of bills. Therefore, I requested that our already been done to prepare for that Leadership Forum alumni provide assis- session. tance. Rebecca DePalma, chair of the newly-approved Leadership Forum t Preparation for the Section, and Ed Patterson put together Regular Session a working group that includes Jim v Not only has the bar’s role changed in Hughey, Chris Deering, Champ Lyons recent years in our interaction with and Brannon Buck. The group collected state government, but the role of legisla- all of the information that was available, “I don’t know what tive counsel has also evolved consider- and combined it with that from the AOC. ably. There is no “off season” for the With the assistance of Past President your destiny will leadership of the bar or our legislative Spruell, President-Elect Phillip counsel. Shortly after the 2011 session McCallum, Rebecca DePalma and leg- be, but one thing I ended, we started working on projects islative counsel Suzi Edwards, the infor- requested by various legislators. [Past mation is being put into a workable know: the only President] Alyce and I jointly appointed format so it can be analyzed and studied. the Alabama Custodial Law Revision Suzi and I met with the legislative lead- ones among you Task Force to look at a custody bill intro- ership several times to discuss the leg- duced in the last session and evaluate islative agenda for the upcoming session who will be really and study potential constructive changes and to determine areas in which we can in the custody law of Alabama. The task be of assistance. happy are those force, chaired by Christy Crow, has There also have been numerous worked hard and been very productive. meetings with the new chief justice and who will have The bar will not take a formal position on his representatives at the AOC, particu- the issue, but, rather, will provide the larly Alyce, who is now the legal director sought and found senator who requested the study with for the Administrative Office of Courts. y information which should be of assis- how to serve.” tance if the senate considers the issue. Probable Issues A request was also made by a number We anticipate the following issues t –Dr. Albert Schweitzer of senators and Representative Paul will be brought up during the 2012 DeMarco for the bar to collect data to regular session that would be of inter- t help the legislature understand court est to members of the bar.

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n Court Funding effort they have spent trying to pass The most significant and challenging this. I worked with these three last ses- problem facing the bar and the judici- sion, learning more tax law than I ary is obtaining adequate court fund- care to know, so at a recent BBC ing. Chief Justice Malone has been meeting, they had fun presenting me working around the clock to come up with an honorary LLM in taxation with innovative business solutions to from NYU. I know it is legitimate the court funding problem. He is to because it is signed by John be commended for involving the lead- Marshall, Al Capone and former ership of the state circuit judges, dis- President Bush. trict judges, circuit clerks and state n bar in the planning and decision-making Judicial Selection process concerning the proposed budg- Given that we are in the midst of a et for the court system and other propos- judicial political election cycle, it is unlikely als to address a shortfall in funding. The that the legislature will address any change chief justice’s approach is to have representa- to our method of selecting judges at this tives of the legal community participate as a full time. However, the discussion about judicial partner in studying the issues so we can speak with one selection for the future needs to be started now so voice. Ongoing efforts have been and will be made to work that the legislature will be in a position to prospectively with appropriate leaders in the legislature and the executive address this issue. branch in an effort to obtain as much funding as possible. Miscellaneous Matters n Child Custody Laws There likely will be numerous issues of interest to the judi- A great deal of work has been done to allow us to be in a ciary and the state bar. The Elections, Ethics and position to share the results of our study with the legislature Governmental Relations Section is in place to address and have an informed answer to any questions regarding each issue, both in terms of providing research and a proposed legislation. The bar does not take a formal position response, if appropriate, or placing us in a position to facili- on these issues, but rather seeks to provide the legislature tate the conversation about these issues. with the requested information for them to make an informed decision. Conclusion n Taxpayers’ Bill of Rights Albert Schweitzer once said, “I don’t know what your destiny One of the top priorities for the business community in the will be, but one thing I know: the only ones among you who will last session was to obtain a taxpayers’ bill of rights. We be really happy are those who will have sought and found how were able to build a consensus in support of the bill, but ran to serve.” The Alabama State Bar sought and found a way to out of time in the session before a vote could be taken. I be of great service to all facets of government in our great anticipate the legislature will address this issue early in this state. Our influence is not based upon political contributions year’s session and it is hoped the consensus built last ses- or party affiliation, but solely on our willingness to be neutral, sion will continue. If this is the case, progress should be objective and of assistance to all who serve in state govern- made toward passing a bill that makes progressive construc- ment. I am very proud of our efforts and those who have tive changes in the system. The bar’s Taxation Section has given of their time and talents to support this. They represent been very active, working hard for a number of years to pass you well and you should be proud of these lawyers and our this important legislation, and Bruce Ely, Will Sellers and bar’s noble cause to support the rule of law and those who Hank Hutchison are to be commended for the time and pass and administer our laws. | AL

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EXECUTIVE DIRECTOR’S REPORT

Keith B. Norman [email protected]

Bob McCurley, when he joined the ALI (left) and when he retired this month (right)– how “a year or two” became 37!

ROBERT L. MCCURLEY: A Career of Service

This past December brought to a successfully through the legislative close a long career of service to the process,1 starting with its first major state of Alabama. Bob McCurley law revisions, which were the Banking retired as director of the Alabama Law Code in 1979 and the Criminal Code in Institute (“ALI”), Alabama’s chief law 1980. The Alabama Uniform Durable reform agency. In January 1975, when Power of Attorney Act and the Bob left a successful law practice in Alabama Uniform Rule against his hometown of Gadsden to become Perpetuities were two of four ALI bills ALI’s fourth director, he did so with the to make it through the legislature in plan of working there for a year or two 2011. Over the years, Bob has enlist- Beginning with the January 1983 Alabama Lawyer, Bob and then returning to the Gadsden ed the expertise of more than 1,000 McCurley provided regular practice. Thirty-seven years later, he is Alabama lawyers (over 250 are work- updates in each issue of the just concluding his work at the ALI. ing on the ALI projects at any one magazine through his col- time) to serve on committees that umn, “Legislative Wrap-Up.” A small staff but big results have been responsible for drafting His last column, on page 76 With a small but dedicated staff reforms of practically every major body of this issue, is number 175. Thank you, Bob! assisting Bob, the ALI has had nearly of law in our state. By leveraging the 100 pieces of major legislation make it service of these willing lawyers over

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the last 37 years, millions of dollars in legal time have been Alabama Legislature. During Bob’s nearly four decades at its gifted to the state under the auspices of the ALI.2 helm, the ALI has developed a well-deserved reputation for its Drafting legislation, however, is only the first part of the excellent work product which has undoubtedly been a signifi- equation for a bill to become an act. The second and most dif- cant reason why the legislature has been favorably disposed ficult part is securing passage by the legislature. This was toward ALI-drafted bills. where Bob truly excelled, working closely with legislators to Although revision of Alabama’s substantive laws is its pri- help guide ALI-drafted bills through both chambers of the mary focus, the ALI does much more. Under Bob’s leadership,

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EXECUTIVE DIRECTOR’S REPORT Continued from page 11

the ALI has become a major publisher of staffs with research, technical assistance handbooks for government officials including and an opportunity for policymakers to probate judges, election officers, county exchange ideas on the most pressing state commissioners and sheriffs. Similarly, the issues. He has served on NCSL commit- ALI regularly conducts training conferences tees, as a lecturer, panelist and program for legislators, probate judges, sheriffs and presenter. In addition, he has held leader- license commissioners, among others. ship positions in the NCSL on its Executive Thanks to Bob’s foresight, the ALI has Committee, Legislative Staff Coordinating become a vital resource for many of Committee and Legal Staff Committee. Alabama’s government officials. Bob’s active participation with the NCSL has enhanced the ALI’s reputation among other Volunteering always a part of jurisdictions for its revision and moderniza- the picture tion of Alabama’s substantive laws. This Bob has also been very involved with the recognition is a compliment to our state, National Conference of State Legislatures the ALI and, especially, to Bob. t (“NCSL”), which is a bipartisan organization Outside his work with the ALI, Bob’s life is This photo accompanied McCurley’s that serves state legislatures and their also service-focused. Whether as an first “Legislative Wrap-Up” in the January 1983 Alabama Lawyer. t

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adjunct law professor at Alabama and assistants as I did during law school would Cumberland or an invited lecturer for concur that Bob was a very positive influ- White House conferences, Bob had readily ence during the early stages of their intro- given his time to far-ranging endeavors and duction to the legal profession. In this many organizations. regard, I am delighted that Othni Lathram, who was an ALI research assistant during “Mr. Kiwanis” law school and has served as the ALI’s There is no better example of Bob’s com- assistant director the last several years, has munity involvement, though, than his long been appointed to follow Bob as director. I and storied career as a Kiwanian. Without know that Othni will do an excellent job. question, Robert L. McCurley is “Mr. Bob had a passion for the work of the ALI. I recall his saying on many occasions, “Heck, Kiwanis” in Alabama. He has served as c. March 1987 local club president, lieutenant governor I enjoy this job so much that getting paid is a and governor of the Alabama district and bonus!” This says a lot about him and helps trustee and vice president of Kiwanis explain the ALI’s success under his leader- International. Because of his respect and ship. The ALI’s law reform work over the last leadership, Bob was persuaded to serve 37 years is nothing short of remarkable. two consecutive terms as president of the Our profession and the state are indebted to | AL Kiwanis International Foundation. For his Bob McCurley for this enduring legacy. service to Kiwanis, he has been named a Barnett Fellow of the Alabama district and Endnotes recognized by Kiwanis International as a 1. For a complete listing of all ALI-sponsored legislation and other projects, go to Hixson Fellow. He has also had his name www.ali.state.al.us to view the 2010-2011 inscribed on the international organization’s annual report to the legislature. Tablet of Honor. 2. See the article by Dave Boyd celebrating the Bob’s professional awards and honors 40th anniversary of the creation of ALI in the May 2009 issue of The Alabama Lawyer for are too numerous to list them all, but they details of its operations and history. are further indication of his remarkable career of service. He has been named a

Fellow of the Alabama State Bar c. November 1996 Foundation and the American Bar Foundation, as well as a “Henry Toll Fellow” by the Council of State Governments. He is the recipient of the “Walter P. Gewin Award” from Alabama CLE, the Alabama State Bar Commissioner’s Award and the “E. Roger Sayers Service Award” by the University of Alabama.

In good hands I have had the privilege of knowing Bob since law school. I worked two years as a research assistant for the ALI during law school and a year there following my graduation. Not only do I consider him a friend, but he is a mentor who helped reinforce the notion that community and professional service is an important aspect of being a lawyer. I feel sure that the hundreds of lawyers who served as ALI research Bob and Babs McCurley enjoy yet another annual meeting!

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IMPORTANT NOTICES

Notice of Election and Electronic Balloting

Judicial Award of Merit

Changes to Client Security Fund Annual Assessment

Alabama Lawyers’ Hall of Fame

Notice of Election and Electronic Balloting Notice is given here pursuant to the Alabama State Bar Rules Governing Election and Selection of President-elect and Board of Bar Commissioners. Bar commissioners will be elected by those lawyers with their principal offices in the following circuits:

2nd Judicial Circuit 15th Judicial Circuit, Place 2 4th Judicial Circuit 15th Judicial Circuit, Place 6 6th Judicial Circuit, Place 2 16th Judicial Circuit 9th Judicial Circuit 18th Judicial Circuit, Place 2 10th Judicial Circuit, Place 1 20th Judicial Circuit 10th Judicial Circuit, Place 2 23rd Judicial Circuit, Place 2 10th Judicial Circuit, Place 5 24th Judicial Circuit 10th Judicial Circuit, Place 8 27th Judicial Circuit 10th Judicial Circuit, Place 9 29th Judicial Circuit 12th Judicial Circuit 38th Judicial Circuit 13th Judicial Circuit, Place 2 39th Judicial Circuit

Additional commissioners will be elected in circuits for each 300 members of the state bar with principal offices therein as determined by a census on March 1, 2012 and vacancies certified by the secretary no later than March 15, 2012. All terms will be for three years.

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Nominations may be made by petition bearing the signa- to a judge who is not retired, whether state or federal court, tures of five members in good standing with principal offices trial or appellate, who is determined to have contributed signifi- in the circuit in which the election will be held or by the can- cantly to the administration of justice in Alabama. The recipient didate’s written declaration of candidacy. PDF or fax versions is presented with a crystal gavel bearing the state bar seal and may be sent electronically to the secretary as follows: the year of presentation. Nominations are considered by a three-member commit- Keith B. Norman tee appointed by the president of the state bar, which then Secretary, Alabama State Bar makes a recommendation to the board of bar commission- P. O. Box 671 ers with respect to a nominee or whether the award should Montgomery, AL 36101 be presented in any given year. [email protected] Nominations should include a detailed biographical profile Fax: (334) 517-2171 of the nominee and a narrative outlining the significant con- Either paper or electronic nomination forms must be tribution(s) the nominee has made to the administration of received by the secretary no later than 5:00 p.m. on the justice. Nominations may be supported with letters of last Friday in April (April 27, 2012). endorsement. As soon as practical after May 1, 2012, members will be notified by e-mail with a link to the Alabama State Bar website that includes an electronic ballot. Members who do not have Changes to Client Internet access should notify the secretary in writing on or before May 1 requesting a paper ballot. A single written Security Fund Annual request will be sufficient for all elections, including run-offs and Assessment contested president-elect races during this election cycle. Ballots must be voted and received by the Alabama State Bar The Client Security Fund was established by the Alabama by 5:00 p.m. on the third Friday in May (May 18, 2012). Supreme Court to provide a remedy for clients who have lost Election rules and petitions are available at www.alabar.org. money or other property as a result of the dishonest conduct of Alabama lawyers. The Alabama State Bar recognizes At-Large Commissioners that the legal profession depends on the trust of clients and although few attorneys breach that trust, it is important that At-large commissioners will be elected for the following the profession’s reputation for honesty and integrity be main- place numbers: 1, 4 and 7. Petitions for these positions tained and protected. The Client Security Fund serves this which are elected by the Board of Bar Commissioners are function by providing grants to clients whose money or prop- due by April 1, 2012. A petition form to quality for these erty was wrongfully taken by an Alabama lawyer. On January positions is available at www.alabar.org. 14, 2011, the Supreme Court of Alabama adopted the following rule changes: • The Alabama State Bar is authorized to assess each lawyer Judicial Award of Merit who on January 1 of each year holds a current business The Board of Bar Commissioners of the Alabama State license to practice law, as required by Ala. Code 1975, Bar will receive nominations for the state bar’s Judicial §40-12-49, an annual fee of $25. Award of Merit through March 15, 2012. Nominations • Any person admitted to practice in the State of Alabama who should be mailed to: upon attaining the age of 65 years, has elected to retire

Keith B. Norman, secretary from the practice of law, shall be exempt from any Board of Bar Commissioners assessment under these rules. P.O. Box 671 • The Alabama State Bar is authorized to assess each Montgomery, AL 36101-0671 lawyer who on January 1 of each year holds a special membership to the Alabama State Bar, as provided by The Judicial Award of Merit was established in 1987. The Ala. Code 1975, § 34-3-17, an annual fee of $25. award is not necessarily an annual award. It must be presented

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IMPORTANT NOTICES Continued from page 13

• The Alabama State Bar is authorized to assess each lawyer • A lawyer who fails to pay by March 31 of a particular year who on January 1 of each year is registered as author- the assessed annual fee pursuant to Rule VIII shall be ized house counsel, pursuant to Rule IX of the Rules deemed to be not in compliance with these rules. Such a Governing Admission to the Alabama State Bar, an annual lawyer is subject to suspension pursuant to Rule 9 of the fee of $25. Alabama Rules of Disciplinary Procedure. • The Alabama State Bar is authorized to assess each • Applications for pro hac vice admission pursuant to Rule lawyer admitted pro hac vice pursuant to Rule VII of the VII of the Rules Governing Admission to the Alabama Rules Governing Admission to the Alabama State Bar, a fee State Bar shall not be approved unless accompanied by of $25 per application. the assessed fee as provided in Rule VIII of these rules. • The Alabama State Bar is authorized to assess each In December 2011, a notice was sent to all bar members lawyer who on January 1 of each year is disbarred, sus- advising of the rule changes. This month, members will receive pended, placed on disability inactive status or otherwise an invoice notice by e-mail with payment instructions. Members inactive, an annual fee of $25, which shall be paid as a who do not have an e-mail address will receive an invoice by condition of reinstatement of the lawyer’s license to regular mail. The full text of the Alabama State Bar Client practice law. Security Fund Rules is available at www.alabar.org.

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2009 Alabama Lawyers’ Francis Hutcheson Hare Sr. (1904–1983) James G. Birney (1792–1857) Hall of Fame Michael A. Figures (1947–1996) Clement C. Clay (1789–1866) The idea for an Alabama Lawyers’ Hall of Fame in various Samuel W. Pipes, III (1916–1982) forms had been explored for several years. In 2000, Terry Brown of Montgomery wrote Sam Rumore, then Alabama 2008 State Bar president, with a suggestion to convert the old John B. Scott (1906–1978) Vernon Z. Crawford (1919–1985) supreme court building into a museum honoring the great Edward M. Friend, Jr. (1912–1995) lawyers of Alabama. Although the concept of a lawyers’ hall Elisha Wolsey Peck (1799–1888) of fame was studied, the next bar president, Fred Gray, appointed a task force to implement a hall of fame. The 2007 John Archibald Campbell (1811–1889) Alabama Lawyers’ Hall of Fame is the culmination of that Howell T. Heflin (1921–2005) idea and many meetings. Thomas Goode Jones (1844–1914) The Alabama State Bar will receive nominations for the Patrick W. Richardson (1925–2004) 2011 honorees of the Alabama Lawyers’ Hall of Fame through March 1, 2012. The two-page form (found at 2006 William Rufus King (1776–1853) http://www.alabar.org/members/hallfame/halloffame_AL Thomas Minott Peters (1810–1888) H_2011.pdf) should be completed and mailed to: John J. Sparkman (1899–1985) Honorable Robert S. Vance (1931–1989) Samuel A. Rumore Alabama Lawyers’ Hall of Fame 2005 P.O. Box 671 Oscar W. Adams (1925–1997) William Douglas Arant (1897–1987) Montgomery, AL 36101 Hugo L. Black (1886–1971) Harry Toulmin (1766–1823) 2010 Edgar Thomas Albritton (1857–1925) 2004 Henry Hitchcock (1792–1839) Dean Albert John Farrah (1863–1944) James E. Horton (1878–1973) Frank M. Johnson, Jr. (1918–1999) Lawrence Drew Redden (1922–2007) Annie Lola Price (1903–1972) Harry Seale (1895–1989) Arthur Davis Shores (1904–1996) | AL

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MEMORIALS

Christine McKoy Drake Christine McKoy Drake, a member of the Cullman County Bar Association, passed away September 26, 2011. A resident of Vinemont, Alabama, Chris graduated from the Birmingham School of Law in 1985. Before attending law school, Chris worked as legal secretary and administrative assistant to her husband, Cullman attorney and former Speaker of the House of Christine McKoy Drake Representatives Tom Drake. She attended law school, raised four children and Judge Ferrill David McRae worked as a full-time legal assistant, all at the same time. Highly political, Chris was a tireless campaigner for her husband’s storied politi- Jill Olivia Radwin cal career, as well as being actively involved in the presidential campaigns of George Wallace and Walter Mondale. Her own opportunity for holding public office Thomas R. Head, III came in 1982 when she was appointed a member of the Alabama State Board of Education. Chris passed the bar exam in 1985 and practiced law as a partner with Drake & Drake in Cullman for 26 years. Two of her children would later become attorneys and both would marry spouses who became attorneys. Her law practice included general civil work, personal injury and real estate transactions. She was also attorney for the Cauliflower Alley Club, a professional organization for wrestlers and boxers. Known for having a keen legal mind and a razor-sharp memory, Chris was a law firm administrator, partner and legal assistant, all in one. She is survived by her husband of 56 years, Thomas E. Drake; her four children, Mary Drake Pate of Birmingham, Tommy Drake II of Vinemont, Whit Drake of Birmingham and Christy Drake Lowe of Denmark; her six grandchildren, Sara Beth, Teddy, Herrin, Kaylee, Rafe, and Tiberius; and numerous cousins, nephews and nieces.

Judge Ferrill David McRae (This memorial originally appeared in the Mobile Press-Register October 24 as a letter to the editor.) On October 20, 2011, a truly remarkable, one-of-a-kind lawyer, judge, sports enthusiast and politician, Judge Ferrill D. McRae, died. Having served almost 42 years, Judge McRae was the longest serving circuit court judge in Alabama. He was appointed to the Mobile Circuit Court bench by Governor George Wallace in 1965. At that time, he was the youngest jurist to be appointed. He had a long distinguished career on the circuit court bench, but, first and foremost, he was a lawyer. Often referred to as “a lawyer’s judge,” he was the

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first one to give advice and find a solution when a lawyer or lawyers. Jill was small in stature, but she more than made his or her family had a personal problem. He admonished up for her size in her beliefs, zeal and dedication to her lawyers to follow the maxim: “The sole purpose of a lawyer is clients, the majority of whom were those who could not have to help people.” otherwise afforded representation. After graduating from Judge McRae regarded advertising by the law profession college, Jill worked for 10 years in advertising and writing, with disdain. Extremely intelligent, he believed, and vocalized, but felt the tug of law school throughout this time. Even that if attorneys treat their clients fairly and represent them though she would have 10 years on her fellow students, Jill admirably, they will spread the word. He believed that if a enrolled at the law school, and was involved in public interest lawyer followed that principle, everything else, including the projects throughout her tenure. She loved the law and the business side of his or her practice, would take care of itself. knowledge she gained in law school. Judge McRae loved all spectator sports, but his true love After graduating, she interned for Alabama senators was Alabama football. The late Coach Paul “Bear” Bryant Richard Shelby and Howard Heflin. Soon after, Jill began to sought the advice of Judge McRae, who was the unnamed work for the Legal Aid Society of Birmingham, and was the Alabama recruiter in South Alabama for Alabama football. only lawyer assigned to the Bessemer Division of the Family Many great Alabama football players were introduced to Court. Jill worked with Legal Aid from November 1993 until Alabama football by the judge. Additionally, Judge McRae January 1998. During this time, she represented many chil- was a charter member of the Red Elephant Club in Mobile. dren as their attorney in delinquency cases and as guardian (He was asked by Coach Bryant to help with the initiation of ad litem in dependency cases. this club.) Some of the club’s first meetings were held in the As usual, Jill went the extra mile in her representation, judge’s tiny office in the old county courthouse. and tried to mentor “her kids.” One year, on her own time, Many politicians, including Governor Wallace, sought the she arranged a fall carnival for children in foster care in advice of Judge McRae, who had an uncanny ability to under- Jefferson County and some of the families who had open stand the pulse of the lower Alabama voters. Numerous cases in the Bessemer family court. Jill recruited many of “would-be” politicians sought his advice before announcing her friends and colleagues to help in this endeavor. their candidacy for a political position. Oftentimes, the judge Hundreds of children enjoyed a day filled with the usual activi- would tell a possible candidate that, unfortunately, he or she ties, such as face-painting, climbing on fire trucks and the had no chance of winning. He would say, “Save your money playing carnival games but there was the additional touch and your reputation and don’t run.” Those who did not heed provided by the Alabama Literacy Council. A tent was set up his advice were later sorry that they did not listen. with pillows, chairs and books, with places for children to qui- Judge McRae, a loyal friend, will be sorely missed by etly sit and read their own book. Each child left the carnival lawyers, judges, jurors, businessmen, and acquaintances. with a book, and children and parents with reading problems He always had an opinion, and if you asked him a question, were provided with referrals for tutoring. Inviting the Literacy his response was never sugar-coated. Council to partner in the carnival was Jill’s idea, because she —John C. Brutkiewicz recognized how many social and educational problems her children and their families faced because of their inability to read. Jill created an atmosphere at the carnival to make reading fun and inviting for “her kids.” Jill Olivia Radwin I worked with Jill when she came to Gordon, Silberman, Jill Radwin (August 16, 1959– Wiggins & Childs and became an associate working the area September 30, 2011) may never have a of special education law. While Jill had worked with juveniles, bronze plaque made in her image, but she had little experience in this area of law. There is no client she was one of the finest individuals to more anxious than a parent whose child is not receiving fair have ever graduated from the University treatment or an equal education. Jill and I shared a wall of Alabama School of Law, as well as being one of its best between our offices, and I would hear Jill literally spend

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hours on the phone with her parent clients, listening to their do not think it ever occurred to her to practice law to get concerns, fears and, sometimes, tears, regarding the treat- rich, as she only represented those who could not afford pri- ment of their special needs children in the school systems. vate representation. She would never recoup all that time in payment, but she did She was loved by her co-workers and supervisors at Legal not care. She always wanted to be there for her clients. She Aid and later by those employed by the State of Georgia, became a specialist in working with children with autism and where she became the liaison between attorneys, judges and was the “go-to” lawyer in the state for children with autism the state legislature for child support laws. Jill helped write who were not receiving proper services in school. the new child support laws in Georgia and spent years travel- Jill was a smart, conscientious and caring lawyer and the ing around the state giving seminars about them to fellow best friend you could have. If she knew you were interested lawyers and the judiciary. Some were in favor of the new leg- in something, she would cut out articles or organize a trip to islature and some were not, and Jill responded to everyone hear a speaker or attend a book-signing on the topic. I must with same alacrity, respect and knowledge. The respect and have 10 books Jill got for me at different book-signings she friendships she garnered are reflected by the fact that three attended. She always remembered your birthday and made Georgia judges, from as far as Savannah, attended her you feel special. funeral in Birmingham. When Jill left Gordon, Silberman to move to Atlanta, she Jill is survived by her parents, Myron and Miriam Radwin, continued to work in the area of special education law, first her brother, Rusty, and her sister, Holly, and her husband, with a firm and later on her own. Many times Jill would not Gary White. be paid, as the parents could not afford the legal bills, but “Humility is strong–not bold; quiet–not speechless; sure– she would continue to zealously represent these clients. She not arrogant.” later went to work for Legal Aid of Atlanta, in Cobb County. I --Julie Marks and Sandra Reiss

Parker, Robert Manley Anniston Bonner, Phillip Milton Admitted: 1955 Tomlin, Ginger Leona Huntsville Died: October 23, 2011 Birmingham Admitted: 1979 Admitted: 1991 Died: May 22, 2011 Pickron, Mary Celeste Died: October 9, 2011 Atlanta Hardy, William Edgar, Jr. Admitted: 1974 Watson, L. Chandler, Jr. Auburn Died: July 22, 2011 Anniston Admitted: 1998 Admitted: 1947 Died: October 14, 2011 Semon, Marsha Lynn Jones Died: October 5, 2011 Birmingham Howton, William C., Jr. Admitted: 1991 White, Jere Field, Jr. Mountain Brook Died: September 8, 2011 Birmingham Admitted: 1950 Admitted: 1980 Died: October 15, 2011 Smith, Andrew Mahlon Died: October 3, 2011 Birmingham Murray, John Reese, Jr. Admitted: 1939 Wilters, Harry John, Jr. Birmingham Died: January 30, 2011 Robertsdale Admitted: 1948 Admitted: 1952 Died: September 29, 2011 Stamps, Robert Boxley Died: September 15, 2011 Birmingham Admitted: 1970 Died: October 7, 2011

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know”–and few would disagree. Even in his last days, his Thomas R. Head, III most common sentiment expressed to visitors was “please A native of Wetumpka, Alabama, let everyone know that I am thinking of them . . . .” Thomas R. “Tripp” Head, III was born in And although his circle of friends was amazingly widespread, 1970 and died November 17, 2011. He he was first and foremost a family man. Already blessed with joined Balch & Bingham in 2000 and devoted parents and a loving sister, he married the great love became a partner in 2006, respected of his life, Julie Austin Dorrough, on May 13, 2000, in a mar- and relied upon both inside and outside riage that produced two lovely daughters. Tripp and Julie adopt- the firm for his professional expertise, ed their eldest, Mary Austin, from China and, afterwards, were even temperament and sound counsel. Indeed, it was no blessed with the birth of their second daughter, Jane. accident that Tripp was not only the past chair of the Tripp battled cancer for a year and a half before moving on Alabama State Bar’s Environmental Law Section but also to the next stage of his life’s journey on the morning of served on the editorial board of The Alabama Enlaw. Thursday, November 17. Earlier, Tripp had posted on his Tripp held numerous academic degrees–a pedigree that Facebook page that “[t]he light shines in the darkness, but the subjected him to much good-natured ribbing (tinged with no darkness has not overcome it.” Even today, even in the wake of small amount of envy) from his friends and colleagues in the Tripp’s passing, that same light shines–thanks to the faithful firm’s environmental and natural resources section. After example that Tripp shared with us while he was with us. | AL attending the University of the South at Sewanee for his fresh- --Balch & Bingham LLP man year, he transferred to Birmingham-Southern College, from which he graduated in 1992. Tripp later earned a master’s degree (in biology) from the University of South Alabama in 1995 before attending the Cumberland School of Law. In 1998, Tripp graduated cum laude from Cumberland and also earned a master’s in environmental management from Samford University that same year. He then earned an LL.M from George Washington University in 1999. Befitting a man of such education and learning, Tripp’s interests were wide-ranging. An Auburn football fan, he also enjoyed fly-fishing, bird-hunting, vacations to Roatan, Honduras, and weekends at his parent’s lake home, even while finding time to serve on the board of the YMCA’s Camp Cosby. A steady, stalwart Episcopalian, he was a member of the Cathedral Church of the Advent, a staunch member of the Church’s Cursillo community and a regular attendee at the Advent’s annual Lenten Lunches series. Tripp listed C.S. Lewis and John Irving as among his favorite authors, although, lest he be accused of being too cerebral, was also known to frequently visit The Onion’s website as well and declared Nacho Libre to be among his favorite movies. The same could be said for his musical tastes. They ranged from Kinky Friedman and Parliament- Funkadelic to John Prine and the Grateful Dead. Tripp, however, was far more than simply an attorney, a BSC graduate, an outdoorsman, an Episcopalian, or even a Kinky Friedman fan. In fact, the most common accolade bestowed upon Tripp was that “he is the nicest guy that I

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THE APPELLATE CORNER

t Recent Decisions of Significance t (September 23–October 31, 2011)

Wilson F. Green [email protected] Decisions of the Alabama Supreme Court Amendments; Fictitious Party Practice; Wantonness Statute of Limitations Ex parte Tate & Lyle Sucralose, Inc., No. 1100404 (Ala. Sept. 30, 2011) Failure to conduct discovery on the question of ownership of a premises in the face of a motion raising the issue and pending for many months demonstrated a lack of “reasonable diligence” required for an amendment substituting a party defendant for a fictitious party to relate back for negligence claims. However, claims of wantonness were not barred because under Ex parte Capstone Bldg. Corp. (decided June 3, 2011), “litigants whose causes of action have accrued on or before the date of this decision [i.e., June 3, 2011] shall have two years from today’s date to bring their action unless and to the extent that the time for filing their action under the six-year limitations period announced in McKenzie would expire sooner.”

Animals in Roadway; Tort Liability Hayes v. Henley, No. 1100636 (Ala. Sept. 23, 2011) j In an animal fence-break case, the circuit court dismissed claims against the Henleys based on an affidavit from Mrs. Henley that she never owned the horse in question, and that under Ala. Code § 3-5-3, even if she did own it, willfulness would be required to be shown, for which there was no evidence. The supreme court reversed as to Mr. Henley, because there was no evidence regarding Mr. Henley’s potential ownership of the horse.

Arbitration; Waiver Aurora Healthcare, Inc. v. Ramsey, No. 1091561 (Ala. Oct. 21, 2011) The defendant has the right to have an arbitration motion heard by a court with proper venue, and, thus, litigation activity directed to the venue question could not be used to prove “substantial invocation of litigation process” or “prejudice to the t opponent” in attempting to establish waiver.

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Arbitration; Modification of Award award is not barred by the failure of the party enjoined to specifically appeal the discharge of the security bond. Turquoise Properties Gulf, Inc. v. Overmyer, No. 1100160 (Ala. Sept. 30, 2011) Under 9 U.S.C. § 11(a), the court can modify an arbitral Insurance; Intervention of Carrier award where there is an “evident material miscalculation of Employers Mut. Ins. Co. v. Holman Bldg. Co. LLC, No. figures.” The court held that, despite the fact that the arbi- 1100106 (Ala. Oct. 28, 2011) trator had noted in his award the return of the five percent, Under Universal Underwriters Insurance Co. v. East the methodology of the arbitrator’s damage award clearly Central Alabama Ford-Mercury, Inc., 574 So. 2d 716 (Ala. suggested a miscalculation, and, thus, modification under 1990) (“Universal I”), a carrier may seek intervention to section 11(a) was to be granted. obtain a bifurcated trial in which insurance matters would be tried after a tort claim. Under Universal Underwriters Ins. Contracts; Injunctions Co. v. Anglen, 630 So. 2d 441, 442 (Ala. 1993) (“Universal II”), the carrier may be allowed to intervene to submit a spe- Capmark Bank v. RGR, LLC, No. 1100318 (Ala. Sept. 30, cial verdict form or to append special interrogatories to a 2011) general verdict form in the tort case. The carrier in this case The court vacated a preliminary injunction because the argued that, when an insurer requests intervention under plaintiff failed to prove a likelihood of success on the merits, both Universal I and Universal II, the trial court loses its dis- based on an alleged promise outside of the loan documents, cretion to deny intervention and must choose one or the where contracts contained integration and merger clauses, and where such a promise was not “collateral” so as to be allowable under the parol evidence rule (the case contains a good discussion of this line of law concerning “collateral agreements”), especially since the alleged promise was also subject to the statute of frauds.

Double Jeopardy In both Ex parte T.D.M., No. 1091645 (Ala. Oct. 28, 2011), and Ex parte Lamb, No. 1091668 (Ala. Oct. 28, 2011), the court reversed on double jeopardy grounds two adjudications of guilt based on verdicts, where the verdict forms were changed after the juries were discharged. The court held that “the problematic recalling of a discharged jury can be avoided in all cases if, before the jury is discharged, the court polls the jury and the court and all counsel review the written verdict form or forms.”

Injunctions; Damages against Security Bonds Sycamore Mgmt. Gp. LLC v. Coosa Cable Co., Inc., No. 1091505 (Ala. Sept. 30, 2011) When a party provides the security bond required by Rule 65(c) upon the entry of a preliminary injunction and that injunction is determined to be wrongful, the party wrongfully enjoined is entitled to seek an award of damages caused by the wrongful injunction up to the amount of the bond for the period the bond was in force. Further, such a damages

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other method. The supreme court disagreed and held that prejudice.” The question’s context suggested more a mis- the trial court has the discretion to deny both methods of communication rather than a deliberately untrue answer, and intervention. Justice Murdock dissented. the true answer to the question was not sufficiently material to the lawsuit to suggest prejudice to the plaintiff. As to this Insurance; “Your Work” Exclusion latter point of materiality, the plurality reasoned that materi- Town & Country Property LLC v. Amerisure Ins. Co., No. ality is not a subjective determination based on the senti- 1100009 (Ala. Oct. 21, 2011) ment of the questioning attorney in voir dire as to whether a Under a CGL policy containing an exclusion for the strike would be used. Bolin, Wise, Stuart and Murdock con- insured’s own work (called a “your work” exclusion), coverage curred. Shaw concurred in the result, reasoning that the for faulty workmanship depends on the nature of the damage ambiguity of the question, combined with the fact that the in issue. There is no coverage if the faulty workmanship party challenging the juror won the case, negated a showing causes damage to the workmanship itself, and is not attrib- of probable prejudice without reaching materiality. Malone, utable to the work of subcontractors. Main, Parker and Woodall dissented.

Juries; Voir Dire Negligence and Wantonness (Contributory Negligence) Hood v. McElroy, No. 1091075 (Ala. Sept. 30, 2011) A plurality of the court held that a juror’s failure to answer Lafarge North America, Inc. v. Nord, No. 1090620 (Ala. a question accurately in voir dire did not warrant granting a Sept. 23, 2011) new trial, because the failure did not give rise to “probable The court unanimously held that the evidence of wantonness was insufficient to establish a “conscious disregard” of safety by the forklift operator, particularly by clear and con- vincing evidence, where the operator ran over the foot of the plaintiff while the plaintiff was walking through a marked loading zone. The court held six to three (with Woodall, Malone and Main dissenting) that the plaintiff was contributorily negli- gent as a matter of law because he had placed himself con- sciously in harm’s way, having appreciated the danger associated with walking through the loading zone with moving equipment in use.

Parental Immunity Ex parte Spurgeon, No. 1101198 (Ala. Oct. 14, 2011) Parental immunity bars simple negligence claims against foster parents (but not wantonness or other intent-based torts).

Personal Jurisdiction Ex parte McNeese Title LLC, No. 1100764 (Ala. Oct. 14, 2011) Although personal jurisdiction may sometimes be obtained by imputing conduct to an alleged co-conspirator who has personally performed no overt act in Alabama, a plaintiff cannot establish personal jurisdiction under a conspiracy theory unless the plaintiff pleads with particularity the conspiracy as well as the overt acts within the forum taken in furtherance of the conspiracy.

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Personal Jurisdiction Service of Process on Individuals; “Usual Ex parte American Timber & Steel Co., Inc., No. Place of Abode” 1100884 (Ala. Sept. 23, 2011) Allsopp v. Bolding, No. 1100432 (Ala. Sept. 30, 2011) The seller of goods which were being shipped from Texas Under Rule 4, service on an individual can be affected at a to Florida should have reasonably foreseen that the goods resident’s dwelling place or “usual place of abode,” and that would have to move through Alabama, thus supporting per- under the extant case law, one can have more than one sonal jurisdiction over the seller. However, the same could “usual place of abode.” Thus, the defendant could properly not be said for the seller’s transport vendor, which operated be served at the address of his on-again, off-again, but then- a commercial website and did nothing to purposefully avail former live-in girlfriend. itself of Alabama. State Immunity; State Action Immunity Motor Vehicle Franchise Termination Vandenburg v. Aramark Educ. Servs., Inc., No. 1100557 Smith’s Sport Cycles, Inc. v. American Suzuki Motor Corp., (Ala. Sept. 30, 2011) No. 1100400 (Ala. Oct. 14, 2011) Multiple class actions were dismissed against state universi- The 180-day statutory notice period under Ala. Code § 8-20- ties and outside contract vendors of universities for mainte- 5 of the Motor Vehicle Franchise Act is not a limitations period, nance of “dining dollars” programs at Auburn, Alabama and so that a period in the statute allows for termination based on UAB. The bulk of the claims were barred by Section 14 immu- a “continuous and evolving” breach about which notice was pro- nity or state agent immunity, and the student plaintiffs lacked vided over a year before termination and which was not cured. standing to pursue claims under Ala. Code § 16-1-32(d).

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THE APPELLATE CORNER Continued from page 25

Warranty The proper method for enforcing an injunction is an order to show cause and a contempt proceeding, not a second American Suzuki Motor Corp. v. Burns, No. 1081605 injunction under the All Writs Act. (Ala. Sept. 23, 2011) Treating a mandamus petition as a Rule 5 petition, the Appellate Procedure court held that a putative class-action complaint in warranty should be dismissed on a Rule 12(b)(6) motion, reasoning Douglas Asphalt Co. v. Qore, Inc., No. 10-12695 (11th that Alabama does not recognize a cause of action for a Cir. Sept. 20, 2011) “constructive” breach of warranty. When there is a relevant change in the law before an entry of final judgment, a party generally must notify the district court; if the party fails to do so, it waives arguments on appeal that are based on that change in the law. Decisions of the Alabama Arbitration; Post-Arbitral Review Court of Civil Appeals White Springs Agricultural Chemicals, Inc. v. Glawson Investments Corp., No. 10-14532 (11th Cir. Oct. 17, 2011) “Common Fund” Doctrine The arbitrators had specific power to enter attorneys’ fees Mitchell v. State Farm Mut. Auto. Ins. Co., No. 2100184 awards, and the issue was properly submitted to the arbitra- (Ala. Civ. App. Oct. 7, 2011) tors in the record by motion allowable under AAA rules The court held that the insured plaintiff was entitled to a (which governed). “common fund” attorneys’ fee for recovering funds which were reimbursable to her insurer as subrogation for “med- Arbitration; Scope ical payments” coverage benefits which the insurer had paid Doe v. Princess Cruise Lines, No. 10-10809 (11th Cir. to its insured. Although Alabama law allows an insurer to Sept. 23, 2011) contract around the common fund doctrine, the insurer’s An employee of a cruise line filed an action under the policy did not abrogate the common fund doctrine by merely Jones Act, general maritime law and common law, seeking referencing the right to be subrogated. The insurer did not damages for a repeated rape committed by co-employees. “actively participate” in the insured’s recovery so as to except The Eleventh Circuit held that Jones and maritime claims the case from the common fund doctrine through the insur- were “related to” the employee’s status as employee, and, as er’s sending letters claiming to protect its own interest. such, fell within the scope of the “related to” arbitration agreement governing the employment relationship with the “Special Employer” Doctrine cruise line. However, common law claims were non-arbitrable Lewis v. Alabama Power Co., No. 2100815 (Ala. Civ. App. because they had no relationship to the plaintiff’s employ- Oct. 14, 2011) ment, even though the plaintiff would not have been on the In order to apply the “special employer” doctrine in workers’ cruise ship but for the employment. compensation, the defendant must establish that the plaintiff gave deliberate and informed consent to the employer’s Bankruptcy; Ponzi Schemes involvement. Perkins v. Haines, No. 10-10683 (11th Cir. Oct. 27, 2011) Transfers to upstream investors in a Ponzi scheme were Decisions of the Eleventh “fraudulent transfers” under 11 U.S.C. § 548(a)(1)(A), but the transfers were not avoidable because they were “for Circuit Court of Appeals value” under 11 U.S.C. § 548(c). All Writs Act Class Actions; Attorneys’ Fees Faught v. American Home Shield Corp., No. 11-10459 Faught v. American Home Shield, Inc., No. 10-12496 (11th Cir. Oct. 21, 2011) (11th Cir. Oct. 31, 2011)

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When a fee award is at or below the 25 percent “bench- After removal and remand, Mazda filed a Rule 60(b)(6) mark” for common-fund fees in class actions, analysis under motion asking for reconsideration of the remand order. The the 12 Johnson factors may not necessarily be required. district court denied the motion, holding that once the case was remanded, the district court lost jurisdiction under Qui Tam; Taxability Harris v. Blue Cross/Blue Shield of Alabama, Inc., 951 F.2d Campbell v. IRS, No. 10-13677 (11th Cir. Sept. 28, 325 (11th Cir. 1992). The Eleventh Circuit affirmed, reason- 2011) ing that 28 U.S.C. §1447(d) not only forecloses appellate A False Claims Act plaintiff’s “relator” award is entirely review, but also bars reconsideration by the district court of includable, for tax purposes, in the plaintiff’s gross income its own remand order. as the equivalent of a reward, under 26 U.S.C. § 61(a). The Court further held that the plaintiff was subject to an accura- Securities; Materiality cy-related penalty for omitting the award from his reported Findwhat Investor Group v. Findwhat, Inc., No. 10-10107 taxable income. (11th Cir. Sept. 30, 2011) A 10b-5 case can be premised on statements buttressing Removal and Remand the veracity of misinformation already in the marketplace | AL Bender v. Mazda Motor Corp., No. 10-14699 (11th Cir. through other sources. Sept. 23, 2011)

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Protect Yourself, Your Family and Your Business

Through its administrator, that provides protection for you, person- ISI Alabama, a division of Insurance ally, in excess of the limits provided in the Specialists, Inc. (ISI), the Alabama State required underlying auto and home poli- Bar endorses a variety of insurance pro- cies. Some highlights of this plan include: grams including: • Defense costs are in addition to the • Major Medical limit of liability; • Term Life • A broader definition of who is an • Association Group Long-Term insured under the policy; Disability • Only a short, summary application to • Association Individual Disability Income apply; • Business Overhead Expense • Domestic partner coverage included; • Accidental Death and Dismemberment • Automatic coverage for 30 days on a • Comprehensive Accident drop-down basis for non-owned autos, • Personal Group Umbrella watercraft and recreational vehicles (subject to a $10K self-insured retention); • Property and Casualty These plans offer association-based prod- • Higher cut-off for automatic coverage ucts through which applicants receive dis- for home-based businesses—up to counted rates as a benefit of membership in $25K in gross annual receipts versus the Alabama State Bar. Underwriting and $10K for our competitors; coverage issue is typically simplified, with • $1M of Uninsured/Underinsured programs of the highest quality backed by Motorists Coverage standard in every the leading carriers writing in the nation. policy; These endorsed plans are all available to • Youthful drivers and secondary resi- ASB members, and most are also offered to dences are covered; member spouses, employees and eligible • Coverage included for serving as a director family members. ISI Alabama may be or officer of any not-for-profit organiza- accessed toll-free for sales at 888-ISI-1959 tion, including condominium, cooperative and for service at 800-241-7753, or you may or homeowners’ associations; access this member benefit online at www.ISI1959.com/ASB/. • Unlike the competition, we offer coverage limits of $1M through $5M; New Personal Group • We include up to $25K of excess identity This article has been updated from Umbrella Insurance theft coverage as well; and the version that originally appeared in • Our pricing is among the most compet- the September 2011 issue of the Lawyer A personal umbrella policy is among itive in the market given the extensive as part of “Best Resources for Starting a the best values in insurance today. For as level of coverage we provide. New Practice from the PMAP.” little as $290 a year, you can purchase $1 million of additional coverage from us Contact us today to get started! | AL

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Alabama State Bar STATISTICS OF INTEREST

Number sitting for exam ...... 509 Number certified to Supreme Court of Alabama ..... 353 FALL Certification rate* ...... 69.4 percent CERTIFICATION PERCENTAGES University of Alabama School of Law ...... 89.9 percent 2011 Birmingham School of Law ...... 26.9 percent Admittees Cumberland School of Law ...... 91.9 percent Jones School of Law ...... 86.2 percent Miles College of Law ...... 0 percent

*Includes only those successfully passing bar exam and MPRE For full exam statistics for the July 2011 exam, go to www.alabar.org/admissions/files/stats0711detailed.pdf

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Alabama State Bar FALL 2011 Admittees

Abrams, Joseph Ross Callaghan, Christopher Adam Ding, Rebecca Zi Wei Hartzog, Denetra Nicole Adams, Ashley Toccara Cannon, Robyn Rena Dobbins, Senna Cody Hawley, Bradley Allen Alexander, Rosemary Nations Carden, Joshua Carey Dolbare, Jefferson Blane Hays, Brandon Scott Amey, Grant David Carpenter, Daniel Burl Donahue, Jr., Timothy Patrick Henderson, Clark Hamilton Anderson, Jesse Kirk Cater, Christopher Franklin Donald, Thomas Christopher Hendrix, Julian Mardel Anderson, Kristopher Omar Champion, Jessica Lee Donaldson, Ann Michelle Henson, Kimberly Michelle Anderton, Judd Jordan Cheong, Yoo Jin Doten, Clay Maxwell Hicks, Deetric D. Montgomery Andres, Patrick David Cheriogotis, Spiro Nicholas Duffy, Sara Lynn Hightower, Ashlee Ann Arnold, Jared Barton Childers, Andrew Reed Dungan, Aubrey Patrick Hill, Matthew Ryan Arnold, Jonathan Michael Choi, Boim Eager, Alexandra Mogel Hilson, Henry Carlton Ashcraft, Aaron Jacob Choi, Yun Jung Edwards, Treza Latrail Hirschfield, Alex Ryan Atkins, Erin Sabina Chung, Dajung Eldridge, Gregory Allan Hodge, Carrie Jo Averitt, Austin Allbrook Chung, Shin Young Elliott, Charles Bennett Hodinka, Ryan Michael Bair, Callen Jordan Ciofalo, Jason Marc Ely, Taryn Alexandra Hogan, Tandice Leigh Baker, Ashley Nicole Clarke, Michael Thomas Evans, Kelly Guy Holland, Caitlin Burns Barclay, Elizabeth Collins Linton ClickJr, Bobby Neil Fantroy, Jr., Ronald Larry Hollingsworth, Caroline Baschab, Mary Martha Clinton, Matthew Blair Fawal, Christopher Joseph Underwood Baswell, Laury Jan Coats, Mattie Mae Fleisher, Gemma Maria Fowler Hood, Alyson Marie Bates, Joshua John Cohn, Benjamin David Flores, Claudia Beatriz Horsley, James Nathan Baxley, Charlie Glenn Coleman, Kevin Michael Forshee, Preston Jeffery Howard, Deborah Lynnette Baylet, Christine Rebecca Connally, Ryan Patrick Foshee, Lauren Elizabeth Howard, Grant Houston Beard, Jordan Tyler Connally, Savannah Hughes Freeberg, Craig Andrew Howell, Laura Elizabeth Becker, Ryan Christopher Couch, Matthew McDonnell Fuller, Kristi Cary Huffstutler, Jonathan Andrew Beckman, Kyle Adam Cowell, James Daniel Galloway, Stephanie Lee Hunter, Stephanie Angela Bedwell, Jonathan Scott Cox, Kay Lanier Garland, Catherine Elizabeth Hur, Dajeong Bennett, Allen Brantley Cox, III, Joseph Thomas Garrett, Clayton Hall Hutzell, Jacquelyn Mather Berry, William Grigsby Craft, Anna Leigh Garrett, Robert Walker Hwang, Ingu Black, George Brett Craig, Lauren Ashley Gilbert, Jaime Lynn Hwang, Min Jung Blake, Robert Brian Crain, Brynn Tatum Gilley, Lee William James, Julia Carole Blumentritt, Charlotte Nicole Crawford, Emily Frances Gilliland, Laura Lee Jansen, Julie Anne Bouldin, Caitlin Elizabeth Crist, Caitlin Marie Givens, John Jameson Jeffreys, Kristin Leigh Brown, Carin Anne Cross, Amanda Joy Goldberg, Michael Louis Jeter, Jacob James Brown, Dana Jeanette Crosson, Katelyn Elizabeth Goodwyn, Anne McMaster Jett, Jr., Gardner Miller Brown, Terrence Antonio Crowe, Catherine Phillips Gore, Meg Guscette Johnson, Franklin Robert Bryant, Natalie Patterson Crowell, III, Jerry Trapp Graves, Sheila Rebecca Johnson, Julia Hanlon Buntain, Carrie Jacqueline Curtis, Lauren Faye Gray, Kristin Elizabeth Johnson, Kevin Raynard Burge, Jr., Frank Tucker Daniel, Christopher Hugh Groos, III, John Joseph Johnson, La Toya Grenese Burney, Lauren Elaine Darley, III, Frederick Bryan Hanley, Neil Stewart Johnson, Valerie Rochelle Butler, Matthew Cooper Darmer, Angel Alece Harris, Alysia Janel Jones, Jennifer Elaine Byun, Hyunchul Davis, Shenika Harris, Kirby Marie Jones, Woodruff Rives Cain, Sr., William Milam Dean, Colin Thomas Harris, Jr., Steven Blake Jung, Ji Hyun Calhoun, Courtney Lewis Dill, John Elton Harrison, Bethany Goodloe Jung, Soon Ji

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Kappel, Brian Patrick Miller, Charles Nathan Rohwedder, David Thomas Thompson, Brett Cooper Kelly, Cari Richelle Miller, Danielle Myrick Rosen, Brent Louis Thompson, Linton Blade Key, Jonathan Riley Minor, Amanda Michelle Rubino, Nathan James Tomlinson, Jennifer LeAnn Kiessling, IV, Edward Henry Montgomery, Sean Miller Rutherford, Russell Joseph Tompkins, Carrie Amanda Kim, In Mooty, Robert Styles Rutledge, William Brennan Traylor, Jr., Darryl Steve Kim, Siwan Morgan, Ryan Elliott Ryu, Allen (Hyun Gi) Trotter, Zachary Davis Kral, Jon Ryan Morris, Andrew Edward Sadberry, Terrie Anneise Ulbricht, Alexander Ashton Ku, Jung Il Morse, Caroline Diana Saenz, Nicolas Vicente Umutoni, Joyeuse Marie LaCour, Jr., Edmund Gerard Morton, Anne Knox Salmon, Jameson Jon Utz, Jessica Leigh Lakes, Thomas Wayne Murphy, Margaret Goldthwaite Sasser, Katherine Anthony VanCleave, James Naylor Lane, Marian Janae Nam, Paul Sung Woo Saunders, Caitlin Nicole Varner, Nicole Alana Lane, Mary Ann Neal, Brandon Charles Saxon, Jr., John David Varner, Jr., George Davis Langan, Grayson Flora Knight Nelson, II, Charles Anthony Schaefer, Benjamin Hall Vick, Joshua Michael Lankey, Christine Denise Newton, Daniel Jacob Scott, David White Vinson, Frederick Nathan Thomas Latta, Laura Leigh Nichols, Laura Michelle Scott, John Mark Vitello, Stacie Elizabeth Lattimore, II, William Albergotti Nichols, Preston Ford Segarra, Jonathan Joseph Beren Vocino, Nicholas Raymond Leavens, Joseph Dennis Nolan, Katherine Brooks Sevier, Jr., Kirby Waldrop, Kimberly Cosby Lee, Chang Hwan Nowicki, Meghan Day Shaefer, Mark McNair Walker, Joseph Thomas Lee, Euna Ogburn, Katherine Finley Shaver, Jessica Ashley Walters, Rhonda Kinard Lee, Felicia Malloch O’Guin, Shannon Cornman Shields, Kristen Marie Warren, Kimberly Danielle Lee, Hyuna O’Rourke, Terence Murphy Shoemaker, Debra Faye Wear, Benjamin Scott Lee, Nancy Young Hee Palmer, Leslie A. Shreve, Lewis Robert Weaver, Lonnie Earl Lee, Sandy Eugene Pape, Christopher Michael Siebert, Derek Adam Weaver, Zachary Ryan Lee, Seo Young Park, Jaepyung Simon, Erin Leigh Welch, Jessica Lynn Lenger, Jordan Lucas Parrott, Katie Lynn Simpler, Sarah Beeland Wells, Laura E. Peterman Lester, James Conrad Perkins, Woodie James Sims, Kristen T. West, Matthew Thomas Levie, III, Walter Hill Peters, Sarah Kristen Sims, Jr., James Carlton Wheeler-Berliner, Andrew Pearce Lim, Mintaek Phelps, Ann Elizabeth Skinner, Amanda Nicole White, David Matthew Little, Jr., John Alan Pierce, William Gantt Smith, Gabriel Joseph White, Jillian Laura Guin Livaudais, Laura Elizabeth Pittman, Adam Wade Smith, James Aubrey White, Kyle Jason Lowery, William Jeffery Polito, Curt Anthony Smith, Jimmy Wesley Wickersham, Taylor-Lee Majid, Farahbin A. Porter, Stephanie Hill Smith, Michael Chad Wilhelm, Susan Franklin Mann, Jonathan Stephen Powell, Heather Aubrey Smith, Timothy Russell Wilkinson, Ashley Rebecca MartinIII, James Guy Powell, Jacqueline Rachel Smith, Jr, Jeffrey Lawrence Willcox, Ginny Britton Massey, James Ross Premo, Grant Alexander Smythies, Victoria Louise Rosalind Williams, Christopher Dorian Massey, Kara Elaine Presley, Ellen Sloan Soppet, Katherine Lynn Williamson, William Ledyard Mauzy, Jane Fulton Prickett, Charles Russell Spainhour, Charles Frederick Wilson, Amber Don McBrayer, Daniel Stuart Prince, Brandon Christopher Sparks, Anna Marie Wilson, Emily Caldwell McCauley, Christopher Clark Rabon, John Christopher Spencer, Nesha Quwana Wilson, Ryan Doane McGough, Benjamin Hudson Ramey, Brittany Rea Sprague, Tara Blake Wimberley, Matthew Thomas McLure, Samuel Jacob Ramey, Eddie Travis Springrose, Pamela Dianne Winokur, Benjamin Joseph McNeil, Mary Margaret Reif, Joshua Frederick Stanfield, Christopher Lawrence Witcher, Cassi Leanne Meade, Benjamin Hogan Rich, Christopher Collin Stephens, Stephanie Ann Wright, Ashley Tormoen Mebane, Hannah Carol Rich, David Abraham Stewart, II, Jackson Decatur Xenakis, Nicholas John Meginniss, Sarah Annette Riley, Allison Lea Strickland, Michael Harrison Yates, John Parker Mehan, Lindzy Michelle Roark, Amy Elizabeth Strickland, Sydney Rene Yearout, Christopher Cameron Meigs, Frederick Keith Roberts, Alieze Drake Strong, Justin Miles Yoon, Hoseon Merkle, Sarah Elizabeth Robinson, Ben Bainbridge Sung, Jihye Yun, Sungjun Messervy, William Lee Rockwell, Megan Elizabeth Tate, John Corbitt Zimmerman, Brandon Michael Mestre, Adam Garin Roedger, Amy-Kate Taylor, Jessica Fair Miller, Cameron Josiah Rogers, Stephen Clarence Teal, Mark Randall

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LAWYERS IN THE FAMILY

1 2

1. Katherine A. Sasser (2011), Justice J. Gorman Houston, Jr. (1956), Mildred V. Houston (1981) and James T. Sasser (1981) Admittee, grandfather, mother and father

2. Christopher Hugh Daniel (2011) 4 5 and Judge Laura W. Hamilton (1976) Admittee and mother-in-law

3. Andrew E. Morris (2011), Kathryn Willis (2002) and Harrison Willis (2002) Admittee, sister and brother-in-law

4. Brandon Neal (2011) and Jack Bains (1992) Admittee and uncle

5. Sarah Simpler (2011) and Fred 6 7 Simpler (1982) Admittee and father

6. Christopher Joseph Fawal (2011) and Joseph A. Fawal (1977) Admittee and father

7. Timothy P. Donahue, Jr. (2011) and Timothy P. Donahue (1982) Admittee and father

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LAWYERS IN THE FAMILY

8 9

8. Ellen S. Presley (2011), Benjamin T. Presley (2010) and J. Hobson Presley, 11 12 Jr. (1975) Admittee, brother and father

9. John D. Saxon, Jr. (2011) and John D. Saxon (1977) Admittee and father

10. Bethany Goodloe Harrison (2011), James Goodloe Harrison (1973) and Matthew Rutland Harrison (2009) Admittee, father and brother

11. E. Travis Ramey (2011) and Brittany Ramey (2011) 13 Husband and wife co-admittees

12. Danielle Myrick Miller (2011) and William C Tidwell, III (1972) Admittee and uncle

13. Jennifer Lackey Jones (2011), Gary W. Lackey (1981), Justin A. Lackey (2009) and Patricia S. Lackey (1999) Admittee, father, brother and aunt

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LAWYERS IN THE FAMILY

14 15

14. Austin Averitt (2011), Anne Knox Averitt (2011) and James Averitt (2005) Husband and wife co-admittees, brother/brother-in-law 17 18 15. Catherine Phillips Crowe (2011) and James Edward Phillips (1983) Admittee and father

16. Ann Elizabeth Phelps (2011), Scott Phelps (1979) and William Chandler (1989) Admittee, father and uncle

17. James Nathan Horsley (2011) and James Michael Horsley (1980) Admittee and father

18. James Guy Martin, III (2011) and 19 20 James Guy Martin, Jr. (1984) Admittee and father

19. John Elton Dill (2011) and Roger Bedford, Jr. (1981) Admittee and uncle

20. Will Lattimore (2011) and Talley Lattimore (1984) Admittee and father

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LAWYERS IN THE FAMILY

21 22

23 24

21. John Givens (2011) and Keith Givens (1981) 25 26 Admittee and father

22. Frank Tucker Burge, Jr. (2011), Frank Tucker Burge (1983) and Mary W. Burge (1984) Admittee, father and mother

23. Ky Sevier (2011) and Kirby Sevier (1971) Admittee and father

24. Adam G. Mestre (2011) and Debra Mestre (1994) 27 Admittee and mother 25. Jonathan A. Huffstutler (2011) and Watt Buttram (1976) Admittee and stepfather

26. Christopher Yearout (2011) and Gusty Yearout (1971) Admittee and father

27. Jesse Kirk Anderson (2011), James H. Anderson (1979) and Charles L. Anderson (1985) Admittee, father and uncle

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LAWYERS IN THE FAMILY

28 29

30 31

28. Kay Lanier Cox (2011), Joseph Thomas Cox, III (2011), Randolph H. Lanier (1974) and 32 Blair R. Lanier (2009) Wife and husband co-admittees, father/father-in-law and sister/ sister-in-law

29. Jackson D. Stewart, II (2011) and William B. Stewart (1990) Admittee and father

30. Margaret Goldthwaite Murphy (2011) and Robert D. Thorington (1957) Admittee and grandfather

31. Robert Mooty (2011) and Dean Mooty (1983) 33 Admittee and father

32. Edwin L. Yates (1978), John Parker Yates (2011), Judge Sharon Yates (1982) and Don Gilbert (1995) Father, admittee, mother and uncle

33. Josh Vick (2011) and Les Lambert (2001) Admittee and brother-in-law

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Alabama Law Foundation 25 Years of Making a Difference

The Alabama Law Foundation marks its 25th anniversary this year. Since The Alabama Law its inception, the foundation has grown Foundation–For Alabama and accomplished much; however, much Lawyers remains to be done. Continued and Lawyers across Alabama contribute a increased support is needed for the foun- valuable service to society by devoting dation to strengthen democracy by mak- their lives to the study and practice of law. ing justice available to all citizens Recognizing that lawyers make their living regardless of income. The foundation also from the legal system, the Alabama State seeks to increase its assistance to young Bar established the Foundation to provide students in furthering their academic philanthropic opportunities for lawyers to pursuits. give back to their communities and state, On the occasion of its 25th anniversary, and better the world around them. the Foundation celebrates the progress it The Alabama Law Foundation is the has made and plans for a bright future only charitable tax-exempt organization with increased efforts to make access to affiliated with the Alabama Sate Bar, and justice a reality for all of Alabama’s citi- the attorneys of Alabama are the reason zens. “From the first, legal services to for the Foundation’s success. Their service low-income citizens was the chief objec- and commitment to a just society help the John Scott tive,” said , first president of foundation meet its objectives. “We have the Alabama Law Foundation. the most talented, caring lawyers in the

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CONSTRUCTION & ENGINEERING nation,” said Tracy Daniel, first and cur- Kill a Mockingbird, is the epitome of the rent executive director. professional and person who Alabama EXPERTS lawyers strive to be and personifies the Forensic engineering and investigative IOLTA–Combining mission of the Alabama Law Foundation. inspection work for Commercial buildings, Resources Atticus Finch declares, “…in this country Residential, & Industrial facilities. our courts are the great levelers, and in The Alabama Law Foundation receives our courts all men are created equal.” n Construction delay damages funds from the interest on Lawyers’ Trust The Foundation is the only 501(c )(3) n Construction defects Accounts (IOLTA) Program, and uses charitable, tax-exempt statewide organi- n those for law-related charitable projects Structural issues zation whose primary mission is to pro- n that support the foundation’s mission. Foundations, settlement vide civil legal aid to the underserved. In n Sinkhole Evaluations Eighty percent of the foundation’s grants that effort, the Atticus Finch Society’s are awarded to groups that provide legal n Stucco & EIFS mission is to build an endowment to aid to low-income people in civil cases. n Toxic Sheetrock & Drywall secure the future of the Foundation and The Foundation was designated as the n Electrical issues so to make Atticus Finch’s statement a first recipient of IOLTA funds, and its n reality in Alabama. To help meet that Plumbing & Piping Problems IOLTA program was approved by the n Air Conditioning Systems goal, charter members commit $10,000 Supreme Court of Alabama in May 1987; over a three-year period. n Fire & Explosion Assessments the program became operational in n Roofing problems The Atticus Finch Society’s charter January 1988. Each year, the Foundation membership is comprised of dedicated n Flooding & Retention Ponds awards IOLTA grants to programs com- persons and professionals committed to n Engineering Standard of Care issues mitted to the foundation’s mission of improving justice in Alabama. Through n Radio & Television Towers making access to justice a reality for all of the Society and the Fellows program, the Alabama’s citizens. The grants are award- Contact: Hal K. Cain, Principal Engineer Foundation recognizes professional excel- Cain and Associates Engineers & Constructors, Inc. for three purposes: civil legal aid to the ed lence and service. [email protected] • www.hkcain.com poor, administration of justice, and law- 251.473.7781 • 251.689.8975 related education. Fellows–Recognizing The IOLTA program allows attorneys to convert their commingled client trust “Above-and-Beyond” Service accounts to interest-bearing accounts. The Fellows are recognized by their peers Banks remit this interest to the as exceptional legal professionals commit- Foundation, and a grants committee dis- ted to helping further the foundation’s mis- tributes the funds to law-related charities sion statement of providing access to justice across the state. Since the IOLTA program with respect for and understanding of the was established in 1987, the Foundation law. Membership is limited to no more has awarded $16 million in grants. than one percent of bar members who have IOLTA became mandatory in 2008. The demonstrated dedication to their profes- increased revenue has helped meet the sion and their community. need for legal services in the continuing Each Fellow commits $2,000 to further economic downturn. However, the reces- the foundation’s mission, in addition to sion has caught up to IOLTA, and the their service and leadership. Every year, grant amounts have been reduced as the Foundation celebrates commitment to lower interest rates have decreased rev- justice by hosting the Fellows Dinner to enue. This reduction comes at a time acknowledge lawyers chosen to join the when an increasing number of Alabama’s program. Current lawyers, though, are citizens are in dire need of legal assistance not the only ones the acknowledged by to deal with economic-related problems the Foundation. Future professionals are a such as bankruptcy and foreclosure. key part of the foundation as well. The grant reductions would have been even more drastic were it not for the honor, Law School Scholarships– dedication and generosity of Alabama Preparing the Next lawyers making a commitment to equal jus- Generation tice by joining the Atticus Finch Foundation. The Foundation funds three education Atticus Finch Society– scholarships for up-and-coming lawyers to make a difference in Alabama. Justice for All The Cabaniss, Johnston Scholarship’s In serving the legal needs of the poor, aim is to recognize and assist academically Atticus Finch, from Harper Lee’s novel, To outstanding second-year law students

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who are also Alabama residents, and to Kids’ Chance Scholarships– school and accomplished their education- help promising law students become Making Dreams Come True al and career goals without the help from lawyers who will make a positive impact Kids’ Chance. When a parent dies or is disabled due on society. Recipients have attended to an on-the-job accident, a family’s stan- Vanderbilt, Harvard, Yale and Columbia, 25 Years…and Counting! dard of living is lowered. As a direct among others. result, some parents cannot help their From scholarships to professional The Justice Janie L. Shores Scholarship children with the cost of education after recognition to grants for civil legal aid, is awarded to one or more female high school. The Workers’ Compensation the Alabama Law Foundation truly is Alabama residents attending an Alabama Section of the Alabama State Bar created making a difference in Alabama. There law school. The Foundation and the Kids’ Chance scholarships to help these have been many changes over 25 years, Women’s Section of the Alabama State young people. Kids’ Chance is adminis- and the foundation shifts and bends Bar established the scholarship, named in tered by the Foundation. Since Kids’ with every turn. The ultimate goal of honor of the first female Alabama Chance began in 1992, it has awarded equal access to justice for all Alabama Supreme Court Justice. scholarships totaling more than $500,000 citizens remains the “heart” of the foun- The William Verbon Black Scholarship to more than 100 students. dation. Reggie Hamner, former executive recognizes Alabama law students attending Kids’ Chance scholarships are com- director of the Alabama State Bar and school fulltime at the University of Alabama pletely funded by contributions from cor- first secretary/treasurer of the foundation, Law School, and who show the promise of porations, organizations and individuals sums it up: “I can’t imagine the bar with- continuing Black’s legacy of a stellar law and recipients are announced once a year. out the Alabama Law Foundation.” And career combined with strong character. The More than 40 recipients have graduated the Alabama Law Foundation embraces scholarship honors Black’s distinguished from college. Many gratefully acknowl- that role, looking forward to the next 25 career and high ethical standards. | AL edge that they could not have gone to years.

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Welcome to the Trophy Generation: Exaggeration of Your Legal Experience Can Lead to Trouble

By Robert P. MacKenzie, III

It had been a long T-ball season the increased competition for legal work. Moreover, the Internet for the Blue Jays. The team of six-year-olds had lost all eight games has provided an almost unchecked forum for lawyers to describe at Carmichael Field. Now having faced the undefeated Orioles, the their legal skills. season came to a merciful ending with the last out. The Orioles In an effort to attract clients, some attorney websites now read walked away with an 11-1 win. Both teams met at home plate and like a John Grisham novel. It is not enough to simply be a litigator after shaking hands, the players went back to their dugouts. While but, rather, many are self-described as complex litigators. There the game and season were over, the “celebration” was just about to are no longer routine commercial transactions, only the sophisti- begin. Amid cameras flashing, each player from the Blue Jays was cated ones. Divorces are only accepted if they are high-end. Such given a trophy. The champion Orioles followed. The recognition descriptions are in keeping with the times. We live in a world was not for games won or lost, or play on the field. There would be where any airport like Birmingham with more than a direct flight no distinction in the size or shape for the trophies given to the Blue to Atlanta now includes the word “International” within its name. Jays versus the Orioles. Rather, everybody who played had to have There was a certain comic relief if not irony when a recent CLE a trophy. Everybody was an All-Star. speaker jokingly introduced himself to a crowded room of lawyers Today, the legal profession has joined the trophy generation. by saying, “Just like each of you, I am a Superlawyer.” Every facet from client development to law schools to even the While self-promotion is allowed within the practice of law, judiciary has been affected. Various services now rank the legal unchecked statements are not good for the profession. Every profession as if we are teams vying for the Bowl Championship lawyer appreciates recognition. Yet, self-promotion based upon Series–“Top Forty,” “Super Lawyers,” “Best Lawyers,” “Top false pretenses can lead to trouble. Such an observation is not Lawyers, “Tip Top Lawyers.” Everyone wants to be recognized. meant to silence well-deserved accolades or reputations. The temptation for recognition by misrepresenting one’s experi- Lawyers are allowed substantial latitude to describe their skills. ence, however, comes with a huge risk. Claims of exaggeration Historically, Alabama courts have been reluctant to hold attor- are increasingly the basis of suits for legal malpractice and bar neys liable for inflating their experience. In Lawson v. Cagle, 504 complaints. Alabama has joined the majority of states which rec- So.2d 226 (Ala. 1997), a Mississippi lawyer found himself the ognize a cause of action against an attorney for misrepresenting subject of a suit when the client failed to receive a $1,000,000 credentials. Likewise, bar complaints now include claims of recovery which the attorney had allegedly guaranteed. The over-blown descriptions of success. The need to exaggerate is plaintiff had been injured in an accident in Mississippi and hired likely a product of the tough economic times which have led to an Alabama lawyer to file suit in Mississippi. The Mississippi

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attorney was subsequently retained as co- Watters’s argument that Valentine’s failure counsel. A dispute arose between the attor- to have expert testimony was a sufficient neys as to the direction of the case. To gain ground for the motion for summary judg- control, the Mississippi attorney purport- ment to have been granted. Instead, the edly stated he could “guarantee” the plain- court determined that an attorney’s breach tiff a $1,000,000 recovery if the client of the standard of care by and through a would allow the Mississippi attorney to misrepresentation of his qualifications is a maintain the case. The client selected the matter that does not require expert testimo- Mississippi attorney based upon this repre- ny. A jury of laypersons would be compe- sentation. The client, however, failed to tent to determine by the exercise of recover any settlement or verdict, much common knowledge whether or not the less the $1,000,000 allegedly guaranteed. representation was true. Accordingly, the The client then brought a fraud claim court held that Valentine’s claim that against the Mississippi attorney based upon Beyond being Watters misrepresented his experience the $1,000,000 representation. The case could go forward without Valentine’s having proceeded to trial, where the jury awarded sued for civil an obligation to produce expert testimony. the plaintiff $2,500,000. On appeal, the ver- If the Alabama Supreme Court’s recogni- dict was reversed. The Alabama Supreme damages, an tion of a cause of action for an attorney’s Court found that even accepting the plain- misrepresentation is not sufficient warning, tiff’s version of the attorney’s statement as attorney’s mis- consider the results in Baker v. Dorfman, having been made, the attorney did noth- representation of 239 F.3rd 415 (2d Cir. 2000). In a case filed ing more than make a prediction of a in New York, the client brought a legal mal- future event. The court observed that the qualifications practice action against Dorfman (an attor- million dollar figure was mere “puffery” ney) arising out of an underlying suit for which did not constitute actionable fraud. may lead to a personal injury. The attorney had missed a The plaintiff had no right to rely upon the court deadline, leading to a dismissal of his attorney’s alleged statements since no one bar complaint client’s case. Among the allegations of the can guarantee the results of a trial. malpractice complaint was a claim that The distinction between puffing versus and disciplinary Dorfman had misrepresented his legal misrepresentation was again examined in background and experience. Valentine v. Watters, 896 So. 2d 385 (Ala. action. A review of Dorfman’s resume included 2004), in which the Alabama Supreme statements that he engaged in a challenging Court recognized a cause of action against and highly diversified practice; was a mem- an attorney for alleged misrepresentation of ber of multiple state bars; had a strong rep- his skills. The underlying action arose after Valentine suffered utation for excellence; was a founder and editor of a law journal; complications following bilateral breast implant surgery. created a master’s of law program in healthcare law at New York Valentine thereafter consulted with Watters (an attorney) to pur- University (NYU); had taught at Boston University and NYU sue litigation against the implant manufacturer. According to School of Law; was regular counsel to multiple public and pri- Valentine, Watters represented that he was familiar with and had vate companies; engaged extensively in trial and appellate litiga- represented other clients in the breast implant litigation. Based tion in both state and federal courts; and had been called a upon these representations, Valentine stated she was “enticed” to “litigator’s litigator.” The plaintiff claimed she relied upon these retain the attorney. After Watters was hired to represent representations when she hired Dorfman, only to later deter- Valentine, there was a delay in filing the suit. This delay led to mine the representations were not accurate. Valentine’s dissatisfaction and Watters’s termination. Valentine Dorfman denied any liability. He characterized his statements later learned her claims were never filed as part of the multi-dis- to the plaintiff and information included on his resume as mere trict litigation. Valentine thereafter brought suit against Watters. puffery which did not rise to any material misrepresentation. Within her complaint, Valentine alleged in part a breach of the The jury and appellate court found otherwise. In fact, Dorfman Alabama Legal Services Liability Act, including a specific claim of was not an experienced lawyer. Dorfman had only been practic- misrepresentation as to Watters’s reference to having counseled ing one month before he was retained to pursue Baker’s personal other breast implant litigants. Watters, however, stated he held injury claim. Dorfman was not a member of all the state bars himself out only as having represented clients in product liability that he claimed membership. Dorfman never represented any actions but not specifically in breast-implant litigation. Watters healthcare organizations. Dorfman had not created an LLM pro- filed a motion for summary judgment relying in part upon his gram at NYU and had not taught courses at any law school. As affidavit. Watters argued that he satisfied the standard of care and far as being a “litigator’s litigator,” the first jury trial that that Valentine had failed to submit rebuttal evidence in the form Dorfman ever participated was the case against himself. The of expert testimony. The motion was granted. On appeal, howev- jury awarded the plaintiff $390,000, including punitive damages. er, the Alabama Supreme Court reversed the trial court’s findings. Beyond being sued for civil damages, an attorney’s misrepre- The Alabama Supreme Court recognized that Valentine did sentation of qualifications may lead to a bar complaint and disci- state a cause of action by and through her claim that Watters had plinary action. Alabama Rule of Professional Conduct (ARPC) 1.1 allegedly misrepresented his experience. The court rejected outlines the requirement that an attorney provide competent

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representation. Helpful to attorneys is the provision of ARPC 1.5, Given the broad parameters of the ARPC, any misrepresentation which allows an attorney to accept a matter in a wholly novel field of expertise and skill may be grounds for violation. if the attorney can gain an understanding of the matter through Like Alabama, other states have taken a dim view of attorneys’ necessary study. The compliance with Rule 1.5, however, should misrepresenting their credentials. In the matter of Michael Hensley include an understanding by the client that the attorney will, in Wells, Opinion No. 26969 (May 9, 2011), the Supreme Court of fact, have to become educated on the particular matter. South Carolina issued a public reprimand and monetary fine Otherwise, an attorney stands to violate ARCP 7.1. ARPC 7.1 against an attorney for exaggeration of his law firm experience. warns lawyers not to engage in conduct involving representations The attorney had advertised by way of a website, brochures, tele- which create an “unjustified expectation” about the results: phone book and even a kiosk in a local shopping mall. The adver- tisements promoted the attorney as having “worked in the legal A lawyer shall not make or cause to be made a false or mis- environment for over 20 years.” In reality, the attorney had only leading communication about the lawyer or the lawyer’s practiced law for seven years. The firm described its associates as services. A communication is false or misleading if it: “numerous trained and experienced attorneys,” “highly skilled” (a) Contains a material misrepresentation of fact or law, and having a “deep personal knowledge of the courts, judges, and or omits a fact necessary to make the statement con- other courthouse personnel.” The numerous trained and experi- sidered as a whole not materially misleading; enced attorneys were two associates who had each been admitted to practice law for less than one year. The lawyer represented the (b) Is likely to create an unjustified expectation about firm had offices not only in South Carolina, but also Georgia and results the lawyer can achieve, or states or implies that Florida. The lawyer did have a referral agreement with attorneys in the lawyer can achieve results by means that violate Georgia and Florida but no offices. Moreover, the public was the Rules of Professional Conduct or other law; advised that the firm had served clients in the areas of constitu- (c) Compares the quality of the lawyer’s services with tional law, civil rights, professional responsibility and toxic torts. It the quality of other lawyers’ services, except as pro- was determined that no lawyer in the firm had ever handled such vided in Rule 7.4; or matters, but only that they were willing to accept those types of cases. The firm’s website even included a section entitled (d) Communicated the certification of the lawyer by a “Consumer Protection and Products Liability Lawyer.” The certifying organization, except as provided in Rule 7.4. description proclaimed the firm had a “history of winning product

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liability cases,” and the lawyers understood “how to deal with both The attorney was not the assistant note editor for his law school’s corporations and insurance companies and have a history of win- review. The law firm for which the attorney said he had worked ning cases for our clients.” It was confirmed, however, that no did not even exist. During the resource director’s attempt to lawyer in the firm had ever handled a products liability matter. speak with the named references by telephone, contact was A Virginia lawyer received a 30-day suspension followed by made with two people who “sounded very similar on the phone” one year of probation when a Virginia court found the lawyer causing her to doubt the legitimacy of the reference information. guilty of ethical misconduct. Virginia State Bar EX REL Second After the bar complaint was filed, the defendant denied any District Committee v. Jason Matthew Head, CL 10-4043 (Circuit knowledge of the application, attending the interview or even Court of City of Virginia Beach, Virginia). Multiple charges were contacting the state Workers’ Compensation Commission. brought by the Virginia State Bar against the defendant for, Instead, the lawyer claimed that his identity had been stolen. No among other causes, misrepresenting the size, location of his information, however, was provided to substantiate this defense. office and areas of practice. The firm was referred to as Jason The court observed the attorney refused to even appear at the Head & Associates, PLC. The attorney represented that the firm initial hearing, much less resolve the issue by just meeting with maintained three locations and had decades of experience. In the human resources director so to prove his case of “mistaken fact, the firm was a solo practice. There was only one office and identity.” The court affirmed the attorney’s suspension to prac- certain practice groups were non-existent. The “decades of expe- tice law. rience” was also incorrect: the lawyer had only been licensed to The temptation to exaggerate qualifications is not limited to practice law for eight years. just a lawyer’s trying to impress a client or obtain a new position. In a bizarre case, Disciplinary Counsel v. Martin Villeneuve Unfortunately, such misrepresentations and exaggerations have (AC 31841, February 22, 2011), the Connecticut Appellate permeated the entire landscape of the legal profession from stu- Court found that a lawyer not only exaggerated his experience, dents to law schools to the judiciary. In 2010, the Illinois but falsely represented his own identity. In 2008, the lawyer Supreme Court issued a three-year suspension to a then-practic- applied for a staff attorney position with the state Workers’ ing attorney (ABA Journal, May 20, 2010). The suspension arose Compensation Commission. During the interview process, the out of a finding that the attorney, while a student at the defendant submitted his resume and described his experience. University of Chicago Law School, had changed his grades for The Commission’s human resources director became suspicious. approximately 20 classes. The alterations included “whiting out” After further investigation, it was determined the lawyer did not his transcript and changing certain grades from Cs and Bs to Bs graduate with honors from the law school as he had claimed. and As. The changes were part of his effort to gain a summer

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clerkship position at a large firm. The law certain judges orchestrated a “pick-and- student was hired based upon the false plea” deal in the courtroom. The judges transcript. After graduation and passing would allow attorneys to pick a jury even the bar, the associate worked for several though all parties and the judge knew the firms. The misrepresentations were discov- defendant wanted to plead guilty and enter ered when the associate’s resume, contain- a plea. Once the jury was selected, the mat- ing his real grades, was circulated by a head ter would officially be credited as a trial. hunter to other firms, including the hiring The defendant would then plead guilty and partner at the firm where the lawyer had case dismissed. The judge and lawyers worked as a summer clerk. Notably, the would receive credit for a trial and three-year suspension by the court exceed- increased experience. There was even a tro- ed the 18-month recommendation by the phy given to the judge who tried the most Disciplinary Panel. cases. The district attorney denied the The pressure to exaggerate credentials The pressure to claims. Unfortunately, the investigation has touched the very institutions in which could not be completed because the perti- lawyers are trained. Law schools have now exaggerate nent records were destroyed by Hurricane become the subject of scrutiny for repre- Katrina. sentations as to the percentage of graduates credentials has Suffice it to say, the problem of misrepre- who find employment and the actual start- sentation cannot go unchecked. Our pro- ing salaries. During the past year, suits have touched the very fession is self-governed, and we generally been filed against New York Law School, institutions in do a good job of policing our own and Thomas Jefferson School of Law and holding lawyers accountable. The Rules of Thomas Cooley School of Law on behalf of which lawyers Professional Conduct require a lawyer to act disgruntled students who find themselves with candor, honesty and integrity. These burdened with debt but no job as prom- are trained. rules do not allow a lawyer to create an ised. Within the complaint against New unjustified expectation by the client con- York Law School, the plaintiffs allege: cerning the potential success of a legal matter, or the attorney’s credentials. These are Unfortunately, NYLS’s false and fraudu- rules of reason and common sense. Clients lent representations and omissions are come to lawyers seeking sound, honest advice. Clients are enti- endemic in the law school industry, as nearly every school tled to know exactly who will represent them, and the attorney’s to a certain degree blatantly manipulates their employ- true background and experience. If an attorney cannot be truth- ment data to make themselves more attractive to prospec- ful about himself or herself, it is unlikely the attorney can be tive students. It is a dirty industry secret that law schools completely honest about the client’s situation. Ultimately, the employ a variety of deceptive practices and accounting client who experiences an unfavorable result will question the legerdemain to “pretty up” or “cook” the job numbers, outcome and may search for someone to blame. That search will including, among other things, hiring recent unemployed quickly focus on issues with the lawyer’s own training and expe- graduates as “research assistants” or providing them with rience. If there is any misrepresentation, a civil action and bar “public interest” stipends so as to classify them as investigation could follow. The results will be not only embar- employed, excluding graduates who do not supply rassing but costly. | AL employment information from employment surveys, refusing to categorize unemployed graduates who are not “actively” seeking employment as unemployed, and classi- fying graduates who have only secured temporary, part- time employment as being “fully” employed. Alexander Gomez-Jimenez, et al. v. New York Law School, Supreme Court of New York, County of New York Index No. 652226/2011. The defendant law schools have denied the allegations. “Padding the resume” may even extend to the judiciary. In New Orleans, questions have been raised about the number of jury trials handled by certain judges. (ABA Journal, March 2, 2011). In February 2011, the sitting district attorney challenged 12 judges of the criminal court division to complete 600 jury trials a year among themselves. The district attorney himself had previously served on the bench for 17 years. He was reported to have described himself as a “trial machine.” As a judge, he had allegedly tried an average of 100 cases a year beginning in 1986 until he left the trial bench. That number, however, was challenged by others as being inflated. According to the investigation,

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Fundamental School Finance Reform Comes to Alabama

By Frank D. McPhillips and Heyward C. Hosch, III

On August 1, 2011, Act No. 2011-631 became law in Alabama, marking the first This article addresses many highlights comprehensive reform, since 1959, of the of this important legislation. The purpose Depression-era laws governing public of this article is not to summarize or ana- school finance. This effort attempted to lyze every aspect of Act No. 2011-631. For modernize and streamline the process by a thorough understanding of this new which local school boards gain access to law, readers are advised to read the Act the capital markets and strengthen the itself, which is available online at the credit of school boards to lower their costs Alabama Secretary of State’s website of borrowing. (http://arc-sos.state.al.us/CGI/actnum- Almost immediately, the positive ber.mbr.input). effects of the new law were felt by local school boards throughout the state. In the Sale of Warrants month of August alone, one small county Prior to enactment of Act No. 2011- school board was upgraded from A- to A 631, Alabama law required school boards by Standard & Poor’s and another small to sell their warrants as follows: county school board received a commitment for bond insurance for the first • Select a date 30 to 60 days in advance; time–both as a result of the new law. In an • Publish a notice in the local weekly era when public resources supporting newspaper; and education are continually stretched and proration is a constant threat, this is • Hope that a bank or other financial indeed welcomed news. institution would submit a reasonable The new law has had another impor- bid on the prescribed date. tant salutary effect: strengthening State Enormous volatility in the capital mar- Department of Education oversight over kets since 2008 has rendered this proce- local school boards. The new law explicit- dure increasingly obsolete. Often, a school ly requires state approval of all forms of board has gone to the trouble and expense local school indebtedness, regardless of of advertising for bids, but missed an ideal the plan of financing which the school marketing opportunity while waiting for board may choose to undertake. As will the bid date. As a result, the board was left be described in more detail below, the empty-handed when it failed to receive a necessity of state approval of all forms of single bid. Or worse, the school board may local school indebtedness is consistent have received only one bid that had a cost- with the state’s overall responsibility for ly built-in margin to protect the bidder K-12 education. from wild swings in the market.

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As competitive sales have become more school taxes as security for a single issue impractical and uncertain, school boards of school warrants. By combining school and their bond counsel have developed taxes, a school board may achieve a better innovative ways to avoid this requirement. coverage ratio–meaning, the maximum Usually, this has involved utilizing a city or annual principal and interest payable on county, or perhaps another public entity, the indebtedness will be covered by more to incur debt for the benefit of the school available tax revenues. A more favorable board through a sale-leaseback or a fund- coverage ratio generally results in a better ing agreement arrangement. Such indirect credit rating because the investment is alternative financing arrangements have considered less risky, which generally entailed greater complexity which, in turn, lowers the interest rate on the investment. has resulted in higher transaction costs Act No. 2011-631 makes clear that any and interest rates for the school board. tax pledge constitutes a preferred claim These financing arrangements often con- against the taxes so pledged, and takes tain “lockbox” provisions for pledged priority over claims for salaries or other taxes that created cash flow problems for operating expenses of the school board. school board operations. Since such alter- This is not necessarily true in the case of native arrangements do not require state city and county general obligation indebt- approval, the State Department of edness, where courts have held that the Education’s traditional oversight responsi- reasonable and necessary expenses of bility has eroded over time. operating general government can take Act No. 2011-631 fixes the problem by priority over the claims of creditors under expressly granting to school boards the certain circumstances. The credit markets power to sell their warrants directly to a are keenly aware of bankruptcy risk as it bank or an underwriter on a negotiated relates to cities and counties. Local school basis. School boards may now enter the boards in Alabama are instrumentalities market on a date of their choosing, when of the state and receive the vast majority ASB Lawyer conditions are most advantageous in the of their operating funds from state gov- Referral Service light of existing market conditions. In ernment through constitutionally ear- addition, the new law clearly requires the marked taxes, not from the school board’s The Alabama State Bar Lawyer Referral state superintendent’s approval before a local government. Because of the reliable Service can provide you with an excellent local school board may incur indebted- nature of the income from the state, credit means of earning a living, so it is hard to ness, regardless of what form such indebt- rating agencies are increasingly comfort- believe that only three percent of Alabama edness may take. As a result, school able issuing higher credit ratings to attorneys participate in this service! LRS boards no longer have an incentive to school boards than to their respective wants you to consider joining. avoid state scrutiny by employing “cre- cities and counties. The Lawyer Referral Service is not a pro ative” financing arrangements. In the end, Because creditors have priority over the bono legal service. Attorneys agree to charge such scrutiny will allow the state to ferret payment of operating expenses, it is criti- no more than $50 for an initial consultation, out problematic financings on the front cally important that school board financ- not to exceed 30 minutes. If, after the con- end rather than being forced to bail out a ings receive adequate scrutiny from the sultation, the attorney decides to accept the school board under duress. state. Act No. 2011-631 prohibits the state case, he or she may then charge his or her normal fees. superintendent from approving any In addition to earning a fee for your serv- Combined School Taxes financing that could jeopardize the state’s ice, the greater reward is that you will be foundation program of education. The helping your fellow citizens. Most referral Under the old school finance law, Alabama Legislature created the clients have never contacted a lawyer before. school boards could not pledge more than Foundation Program Fund to ensure that Your counseling may be all that is needed, or one tax as security for an issue of school each Alabama school district is sufficient- you may offer further services. No matter warrants. The primary source of local ly funded to meet a minimum operating what the outcome of the initial consultation, funding for Alabama school boards is budget. Beginning in 1995, as a condition the next time they or their friends or family property taxes, but for many school to the receipt of state appropriations from need an attorney, they will come to you. boards this single tax revenue stream is the Foundation Program Fund, each local For more information about the LRS, con- often inadequate to finance a major capi- school board was required to provide a tact the state bar at (800) 354-6154, letting tal project. Therefore, under the old law, local match equivalent to ten mills of the receptionist know that you are an attor- school boards were forced to initiate mul- ney interested in becoming a member of the local school ad valorem tax. This require- tiple financings to pay for a single capital Lawyer Referral Service. Annual fees are ment of minimum local effort became $100, and each member must provide proof project. Such bifurcated financings result- embedded in the Alabama Constitution of professional liability insurance. ed in higher transaction costs and higher with the ratification of Amendment No. interest rates for the school board. 778, which mandates that not less than 10 Act No. 2011-631 allows school boards, mills of local ad valorem taxes be levied for the first time, to combine multiple in each school district in the state. As a

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matter of policy, the state superintendent includes a laundry list of special educa- or obligations of such board incurred generally will not approve a school board tional facilities. pursuant to any agreement . . . by such financing unless a minimum of 10 mills In another departure from old law, the board and a public person whereunder or its equivalent is unencumbered follow- Act permits school boards to finance, such board shall make payments.” In the ing the issuance of such school warrants. with the approval of the state superin- course of unwinding these alternative tendent, other “extraordinary, nonrecur- financings, many school boards will Working Capital ring items that are not customarily achieve significant savings by relying on Under old law, a school board could payable from current revenues including, their own credit ratings instead of the borrow to pay operating expenses for a without limitation, casualty losses, legal political jurisdictions they serve. period ending not later than September judgments, and payments due upon early 30 of the fiscal year in which the borrow- termination of contractual agreements or Assistance by Other ing occurred. Over the past several years, prepayments of indebtedness.” The flexi- Governmental Entities bility of the new law is further evident by a school board struggling with the effects The new law expressly grants to cities, the provision that empowers school of a July or August proration declaration counties and other governmental entities, boards to incur debt “for such other pur- often had no choice but to request its the power to guarantee school warrants, poses for which a board is authorized by local bank to lend it enough money to make grants to school boards and provide law to expend money.” permit the board to close out the fiscal other types of financial assistance directly year. The bank loan, by law, was required to school boards. Such powers generally to be paid on September 30, when the Refunding City or County did not exist prior to enactment of Act school board’s cupboard was bare. School Warrants No. 2011-631, so once again alternative Although the bank would usually agree to As discussed above, school boards have financing plans had to be developed to roll over the loan for another year, the law make use of the generosity of the political prevented the bank and school board discovered innovative financing arrangements to avoid the competitive sale and jurisdiction served by the school board. from negotiating a deal to pay off the loan By expressly granting broad powers to over a longer period, such as two or three single tax restrictions in the old school finance law. In many cases, it now makes municipalities and counties, the new law years. permits cooperative financings to be The new law allows a school board, sense for school boards to unwind these alternative financings to achieve signifi- accomplished in the most direct and cost- with the prior approval of the state super- effective manner. intendent, to incur working capital cant savings. Not only were the alterna- indebtedness for periods longer than a tive financings more expensive because of complexity, but they often Conclusion year. Although it is not usually prudent to their relative were done when tax-exempt rates were It is essential that lawyers who represent incur long-term debt to pay operating higher than they are today. all public entities–especially school boards– expenses, there are extenuating circum- The new law permits school boards to develop a working knowledge of Act No. stances where that may be unavoidable. issue school warrants to refund outstand- 2011-631. This Act presents significant As school boards deal with the ravages of ing lease obligations, funding agreement opportunities for school boards and the the recent financial meltdown and reces- obligations and “any valid indebtedness political jurisdictions they serve. | AL sion, flexibility in the new law has become vital.

Financing All School Property Under old law, school boards had the power to borrow funds to finance certain specific types of capital improvements– essentially school buildings, playgrounds and school buses. In 1939, school boards did not need sports facilities, performing arts centers, telecommunications facilities, broadband, or separate heating and cooling facilities. Act No. 2011-631 modernizes the definition of what can be financed so there is no doubt that a school board can borrow to meet the challenges of the 21st century. “Public School Facilities,” as defined in the Act, includes “all tangible and intangible property and interests in property, whether real or mixed, used or useful for educational and public school purposes, . . .” and

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Legal Malpractice Actions under the Alabama Legal Services Liability Act: Alleged Involuntary Attorney-Client Relationships and Attendant Statute Of Limitations Issues

By Max Cassady

Legal malpractice actions in Alabama paralegals, and couriers.1 The “standard are governed by the Alabama Legal of care” required is the “reasonable care, Services Liability Act (“LSLA” or “Act”), skill, and diligence as other similarly sit- which provides that “[t]here shall be only uated legal service providers in the same one form and cause of action against legal general line of practice in the same gen- service providers in courts in the State of eral locality ordinarily have and exercise Alabama and it shall be known as the in a like case.” Id. § 6-5-572(3). legal service liability action . . .” Ala. Code § 6-5-573. Thus, where the Act applies, all The ALSLA Limitations other tort, contract and statutory causes Period vs. Common Law of action are foreclosed and the action must be brought within the ALSLA’s Limitations statute of limitations. Id. § 6-5-570. In creating a cause of action against The Act governs “[a]ny action against legal service providers, the Alabama legis- a legal service provider in which it is lature also “provide[d] for the time in alleged that some injury or damage was which a legal service liability action may caused in whole or in part by the legal be brought and maintained.” Ala. Code § service provider’s violation of the stan- 6-5-570. In general terms, the ALSLA dard of care . . .” Ala. Code § 6-5-573. provides for a two-year limitations period “Legal service providers” includes for cases not involving fraud, but that lawyers who are licensed by the Alabama period is extended by a six-month discov- State Bar, foreign attorneys “engaged in ery rule in non-fraud actions if the “cause the practice of law in the State of of action is not discovered and could not Alabama” and their law clerks, legal reasonably have been discovered within assistants, legal secretaries, investigators, such period.”2 In cases alleging fraud, the

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limitations provision runs two years from the date of discovery of injury or damage that gave rise to the ALSLA claim and com- the facts constituting fraud.3 In all cases, however, a four-year menced the running of the statute. absolute bar applies.4 While the phrase “injury or damage” appears in the defini- This statute of limitations perhaps may be the most important tion of an “action” under the Act, the phrase does not appear of the Act’s protections for attorneys. In Kinney v. Williams, 886 limitations provision of the Act, § 6-5-574, which requires that So. 2d 753 (Ala. 2003), for example, a lawyer explaining a deed “[a]ll legal service liability actions against a legal service allegedly negligently misrepresented that a road passing through a provider must be commenced within two years after the act or parcel of property was private and not public. The lawyer omission or failure giving rise to the claim.” That language–and explained the deed to four persons–two were his clients, and two not “injury or damage”–became the focus of a 1999 plurality were not his clients. All four filed suit when the road was declared decision in Ex Parte David R. Panell, 756 So.2d 862 (Ala. 1999), to be public, contrary to the attorney’s opinion. The ALSLA which held that the Alabama legislature had “intended to applied to the claims of the clients and resulted in summary judg- replace” the “damage rule” with an “act or omission” rule. In ment on limitations grounds under the more rigorous statute of Panell the client alleged that his attorney in the underlying limitations in the ALSLA. The two non-clients asserted common action had settled his case without his consent. The court con- law claims of fraud based on the defendant attorney’s knowledge cluded that “[i]t is immaterial for purposes of the statute of limi- that he was making professional representations they would rely tations whether the client knows the full extent of the damage upon, even though they relied upon the attorney’s opinion outside resulting from the tortious act or omission.” of the attorney-client context. The two non-clients avoided sum- Three of the nine members of the court agreed with the mary judgment under the common law limitations period. rationale5, part of which was that the legislature had inserted the In cases where the ALSLA limitations provision does apply, the “ameliorative discovery provision” in Section 6-5-574(a), which statute of limitations analysis remains difficult because of uncer- provides a six-month extension to the two-year limitations peri- tainty on whether the “act or omission” constituting alleged mal- od where “the cause of action is not discovered and could not practice commences the running of the limitations period, or the reasonably have been discovered within such period.”6 Applying resulting “injury or damage” caused by the alleged malpractice. the “act or omission” rule, the court held that the client’s ALSLA The Act’s definition of a “[l]egal service liability action” as “[a]ny claim was time barred because the limitations period ran from action against a legal service provider in which it is alleged that the date of the alleged wrongful settlement of the underlying some injury or damage was caused,” Ala. Code. § 6-5-572, led to action, not date of the dismissal of the action (i.e., the “injury”), early ALSLA cases holding that “injury or damage” had to be which came some time later. objectively apparent to the client for the ALSLA limitations period The Panell “act or omission” rule has been subject to criticism.7 A Cumberland Law Review article written by attorneys who “typically act as advocates for defendants in suits for In cases where the ALSLA limitations provision does apply, the professional negligence,” concluded that statute of limitations analysis remains difficult because of the Panell decision produces “illogical” uncertainty on whether the “act or omission” constituting results when read literally.8 An Alabama alleged malpractice commences the running of the limitations Law Review commentary viewed Panell as suggesting that “that a client’s statute period, or the resulting “injury or damage” caused by the of limitations could run before a cause alleged malpractice. of action accrues” when “[l]egal representation is often a long and protracted process” in which the damage of the act or omission only becomes apparent to a to commence. In 1991, Michael v. Beasley, 583 So. 2d 245 (Ala. reasonable person when the case is dismissed.9 1991), held that a legal malpractice action accrued when the client Decisions following Panell have not resolved the confusion suffered “a legal injury” which was “sufficient to maintain an on whether to apply an “act or omission” occurrence test or an action.” The opinion further held that the period ran “from the “injury or damage” test. In Sirote & Permutt, P.C. v. Bennett, 776 date of the accrual of a cause of action and not from the date of the So. 2d 40, 45 (Ala. 2000), just one year after Panell, the court occurrence of the act or omission.” Applied to the facts, the court noted that “our decision is based on the case law applying the held that an adverse jury verdict against a client caused the action Michael rule that the period of limitations begins to run as soon to accrue and commenced the running of the statute of limitations, as the plaintiff sustains a legal injury.” In the same year, in Ex not the “act or omission” occurring before the verdict itself. parte Seabol, 782 So. 2d 212, 214-215 (Ala. 2000), the court The “injury or damage” rule was applied again in Cantrell v. acknowledged Panell but held that “the running of the limita- Stewart, 628 So.2d 543 (Ala. 1993) in which the lawyer missed a tions period is tolled until the client discovers, or reasonably statute of limitations but continued litigating the matter in the should discover, the attorney’s act or omission or failure.” underlying action in an effort to save the client’s cause of action. Since 2001, the court has not resolved the uncertainty because After the underlying action was lost and the client sued for legal it has not been required to do so to reach a decision. In Floyd v. malpractice, the lawyer contended that the statute of limitations Massey & Stotser, P.C., 807 So. 2d 508, 511 (Ala. 2001), the court for the legal malpractice action had expired even as the lawyer acknowledged the “injury or damage” test as well as the “act or continued litigating the underlying action. The court again held omission” occurrence test, but declined to establish either test as that the trial court’s dismissal of the underlying action was the correct because the court concluded that the ALSLA claim was

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time barred under either test. In Denbo v. DeBray, 968 So. 2d 983 because he had been providing legal services as a licensed lawyer. (Ala. 2006), the court again declined to choose between “the two In opposition, the plaintiff presented expert testimony from a different approaches for determining when the statute of limita- practicing lawyer (a) that the defendant attorney had a duty tions begins to run,” holding that under either the client’s com- under the ALSLA in filing for the conservatorship distinguish- plaint was untimely. Finally, in 2010, in Coilplus-Alabama, Inc. v. able from his separate duty as a fiduciary in jointly co-signing the Vann, 53 So. 3d 898, 909 (Ala. 2010), the court did not declare checks with the mother; and (b) that the attorney’s conduct had either test to be correct, and stated: “[b]ecause Coilplus’s legal- fallen beneath the standard of care required by the ALSLA; but malpractice action is time-barred under all applicable provisions (c) that the attorney’s breach of the standard of care in releasing of § 6-5-574, regardless of whether the ‘occurrence’ approach or the blank checks was under his general fiduciary duty outside of the ‘damage’ approach is used to determine when that action an attorney-client relationship. The Hartford also sued the attor- accrued, and because Coilplus failed to present any evidence to ney for breach of his fiduciary duty and for indemnification support a claim of fraudulent suppression, we affirm the trial under an agreement he had executed with The Hartford in which court’s summary judgment in favor of the defendants.” he agreed to be The Hartford’s representative charged with the duty of cosigning checks issued by the conservatorship. At the close of the evidence the trial judge concluded that no When Does the ALSLA Apply? attorney-client relationship had existed and dismissed the ALSLA Any lawyer sued may wish to invoke the advantageous statute claim. The case proceeded on common law claims of negligence, of limitations under the ALSLA. The Act does not apply, however, wantonness and breach of fiduciary duty,13 and the jury returned a simply because the defendant in a civil action is an attorney; verdict in favor of the claimant and in favor of The Hartford. On rather, the Act and its statute of limitations apply only to claims appeal, the attorney argued that the loss of conservatorship funds between “legal service providers” and those “who have received necessarily related to his providing “legal services” as an Alabama legal services.”10 Thus, the ALSLA clearly applies when the parties licensed attorney. The supreme court disagreed, holding that the agree that the claim arises out of an attorney-client relationship trial judge and jury had properly inferred that the defendant attor- over legal services allegedly falling below the standard of care;11 ney had undertaken an “entirely separate fiduciary obligation to conversely, it does not apply when the parties agree that the dis- [the minor child and the company] by explicitly agreeing to par- puted facts did not involve legal services rendered pursuant to an ticipate in the conservatorship by cosigning checks and being attorney-client relationship. In such situations, general civil law actively involved with the conservatorship funds.” applies, because the Act does not apply to a dispute between a lawyer and a non-client.12 Involuntary Attorney-Client Relationships: What if the parties cannot agree that the Act applies or does not apply to the civil action at hand? In such a case, the trial judge and the parties are forced to navigate through both the common law and the Act until the applicability of the Act is determined either by the judge as a matter of law, or by the jury as a matter of fact. This article details several scenarios where parties disagree on the whether the Act or the common law applies. In each situation, the trial judge confronts a maze of difficult statute of limitations uncertainties.

Disputed Attorney-Client Relationships in Litigation: Dual Roles of Attorney and Fiduciary When one party asserts the attorney-client relationship and the other denies the relationship, both the ALSLA and general common and statutory law apply until a jury or judge makes a factual finding that an attorney-client relationship did or did not exist. For example, in Line v. Ventura, 38 So. 3d 1 (Ala. 2009), the Alabama Supreme Court was faced with a lawyer serving dual roles: as the attorney filing the conservatorship, and as the fiduciary co-signer of checks under an agreement with The Hartford, the bonding company for the conservatorship. The blank checks were given to the minor’s mother, who allegedly wasted the money on inappropriate goods such as a polo pony, a BMW and inappropriate investments. Once the minor reached the age of majority and learned that the $500,000 in wrongful death proceeds were exhausted, he filed suit against the attorney and The Hartford insurance company. The attorney denied that the minor child had been his client but also asserted that the ALSLA barred any claims against him

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The Lawyer’s Duty to A primary risk for a attorney represented each investor in pre- Manifest Lack of Consent lawyer joining a group entity formation proceedings and also rep- to an Attorney-Client as an investor or part- resented the business organization after it commenced its formal existence. The indi- Relationship ner is the dilution of vidual investor may assert that his intent to Section 14 of The Restatement of Law the attorney’s self-per- receive legal services was manifested in his Governing Lawyers provides that “[a] rela- ception of his or her or her signing of legal documents in an tionship of client and lawyer arises when a lawyer status. individual capacity. person manifests to the lawyer the person’s Once the investor claims an attorney- intent that the lawyer provide legal services client relationship, the Restatement places for the person; and either (a) the lawyer the burdens on the attorney to show evi- manifests to the person a consent to do so; or (b) the lawyer fails dence of the attorney’s “manifest lack of consent” to form the to manifest lack of consent to do so, and the lawyer knows or attorney-client relationship. This burden may be mitigated and a reasonably should know that the person reasonably relies on the legal malpractice claim avoided, for example, by a Southeastern lawyer to provide the services.” The attorney’s subjective lack of Transactions Manual model letter entitled, “Representing consent to attorney-client relationship does not control because Multiple Investors in Organization of Corporation and Acting as the attorney-client relationship is a matter of contract formation, General Counsel.”17 The letter calls for the signature of each and Restatement Section 14 adopts the objective theory of con- investor and: 14 tracts. The Supreme Court of Alabama has held that “[a]n • Clarifies to the investors who the attorney represents; attorney’s representations to a potential client” may impose the relationship by law and not the attorney’s consent “because [t]he • Cautions that attorney-client privileges will be lost in the mere existence or nonexistence of an express contract, employ- event of a conflict arising out of misconduct by an investor; ment, the payment of legal fees, or the length of the consultation • Gives notice that the lawyer will have a duty to report any is not determinative of whether a preliminary consultation has investor’s misconduct to other investors and the business matured into an attorney-client relationship.”15 entity; • Warns that disagreements may arise on capitalization and Small Business Organization Counsel: other organizational matters; Beware of Involuntary Attorney-Client • Advises that if the disagreements prove to be material and Relationships with Investors intractable, the attorney will have to withdraw and recom- Alabama Rules of Professional Conduct, Rule 1.13 addresses mend new counsel to each; and the “Organization as Client,” and provides that “[a] lawyer • Explains that in litigation between the investors over the employed or retained by an organization represents the organi- meaning of a transactional document drafted by the zation acting through its duly authorized constituents,” but the lawyer, the lawyer will be a witness at trial and cannot rep- rule concurrently directs that “a lawyer shall explain the identity resent any investor. of the client when it is apparent that the organization’s interests are adverse to those of the constituents with whom the lawyer is Practicing Business (Or Law, or Both?) dealing.” Further, Rule 1.13 allows that “[a] lawyer representing With Non-Lawyer Business Partners an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents,” but A related red-flag situation arises when a lawyer is an “[i]f the organization’s consent to the dual representation is investor or partner in a business venture with non-lawyers, and required by Rule 1.7, the consent shall be given by an appropri- the lawyer provides both legal services and non-legal contribu- ate official of the organization other than the individual who is tions. The attorney may be invited into the business-partner role to be represented, or by the shareholders.” Although the Rules of by an investment group which has a minimal legal budget and is Professional Conduct may not be used as evidence in an action willing to barter for legal services. Or the attorney may affirma- under the ALSLA,16 the rules alert the practitioner to the poten- tively ask to join a growing, successful venture which has higher tial client-identification issues confronting small business coun- potential profits than practicing law. The real estate market has sel and mirror the “lack of consent” standard of the Restatement. been a common route for lawyers into investment groups Investors often organize a business entity with a single attor- because it tends to involve a local focus and an area upon which ney to avoid paying multiple lawyers and because they share an many lawyers’ practices touch. optimistic unity of purpose and no perceived conflicts among A primary risk for a lawyer joining a group as an investor or themselves. But conflicts may surface when an individual partner is the dilution of the attorney’s self-perception of his or investor is faced with deep losses or feels unrewarded when large her lawyer status. The lawyer may begin to perform legal services profits are distributed. The lawyer who organized the company more routinely and without advising partners or organization of may become the first professional the disappointed investor calls the risks. Less documentation and less discussion with the “client” because the investor expects the “company attorney” to resolve a is a logical development because the attorney is also representing conflict among the partners or shareholders. That investor later himself or herself with a genuine, vigorous self-interest of avoid- may seek to blame the attorney for failing to protect that ing injury. That is not necessarily a bad thing when the business is investor’s individual legal interests in the company formation doing well: the group has the confidence of having a lawyer process or in subsequent transaction documents or that the involved in the regular conduct of the business. The group then

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may naturally drift into exercising less control over material legal authorization from them as individuals. The lawyer denied the decisions ordinarily reserved for the client. Even the lawyer’s own attorney-client relationship and left the trial court in the position self-perception may become more of a sense of a business partner of navigating the common law and the ALSLA. than the attorney for the investors or the business entity. The attorney’s central identity as the legal service provider may Application of the ALSLA to Out-of-State re-surface if the business venture fails or is threatened for legal rea- Counsel sons related to services provided by the lawyer. The lawyer’s “legal In the age of the Internet and cable television, state boundaries service” role might involve failing to record a mortgage or lien, or do not confine an attorney’s audience of potential clients. Thus, not correctly interpreting a legal document, or mistakenly releas- out-of-state mass tort attorneys frequently represent thousands of ing company funds from the lawyer’s trust account, or lack of pre- Alabama clients as individuals by opting them out of class actions. entity document clarity which only becomes apparent when a The sheer geographic distance between the client and the out-of- dispute arises about the meaning of a profit-sharing document pre- state attorney frequently results in attorney-client relationships pared by the attorney for himself and the group. If no outside counsel provided overview for the company, the lawyer may have being formed by U.S. Mail and in settlements without the Alabama difficulty denying an attorney-client relationship with the company client and the out-of-state attorney ever meeting face to face. Injury broadly across state lines, and cross those and perhaps with some of the individual investors. In the context attorneys also advertise state lines to settle Alabama claims for Alabama citizens without of Restatement Section 14, some investors may contend that they filing any litigation. Arguably, these attorneys may not be covered expressed intent to receive legal services, and did receive legal serv- by the Act if they fail to at least associate with an Alabama-licensed ices, and further that the lawyer failed to manifest lack of consent lawyer who is working for the benefit of the client because to act as that individual’s attorney. In litigation, the attorney’s Alabama Code § 6-5-572(2) defines a “Legal Service Provider” as denial of the attorney-client relationship would require the court “[a]nyone licensed to practice law by the State of Alabama or and counsel to address the common law and the ALSLA. engaged in the practice of law in the State of Alabama.” In Alabama Educ. Ass’n v. Nelson, 770 So. 2d 1057, 1059 (Ala. Trust Account Transactions: Involuntary 2000), the court held that “the plain language of § 6-5-572(2), as Attorney-Client Relationships or Common well as that of the other portions of the ALSLA, clearly indicates Law Negligence that the legislature intended for the ALSLA to apply only to A lawyer’s handling of the firm’s trust account may possibly lawyers and to entities that are composed of members who are implicate the ALSLA as well. In recent Alabama litigation, a young licensed to practice law within the State of Alabama.” See also lawyer had an existing client who was a real estate finance specialist, Fogarty v. Parker, Poe, Adams & Bernstein, L.L.P., 961 So. 2d 784 and the client had an impressive past record of locating and finding (Ala. 2006) (holding that ALSLA did not apply to defendant private investors for sound real estate investments. The finance spe- attorneys from North Carolina had not appeared in any Alabama cialist persuaded two investors to wire $500,000 to a lawyer’s trust court or litigation, but rather had handled transactional work for account. The finance specialist represented that he would also con- Alabama investors forming an Alabama LLC). According to the tribute $500,000 of his own money to the investment. The finance specialist also represented that his attorney would act for all of In the age of the Internet and cable television, state the investors and create the LLC, prepare the transaction documents, take a security inter- boundaries do not confine an attorney’s audience of est in property outside of Alabama and close potential clients. the deal utilizing his law firm’s trust account. The young lawyer had no prior relationship with the two investors and did not meet them during the entire business transaction. But the lawyer communicated with the two 2011 decision of Roberts v. Lanier, 2011 Ala. LEXIS 49 (Ala. Apr. investors through faxes of transaction documents and “CCs” of e- 15, 2011), the court a “legal service provider” includes out-of- mails. state attorneys once admitted pro hac vice. The lawyer created an LLC for the group and accepted into his The Fogarty holding was curtailed in 2009 by Wachovia firm’s trust account a $500,000 wire from the two investors. The Bank, N.A. v. Jones, Morrison & Womack, P.C., 42 So. 3d 667, finance specialist privately e-mailed the attorney and represented 677 (Ala. 2009), in which the court stated, “We disagree with that he had wired $500,000 in funds into the attorney’s trust [the defendant law firm’s] contention that . . . it cannot be held account. The e-mail instructed the attorney to immediately pay liable under the ALSLA because none of its attorneys were himself a substantial fee and to wire the remaining funds to licensed to practice law within the State of Alabama.” The court another bank. When the finance specialist absconded with the focused on two factors to distinguish Fogarty: first, the out-of- two investors’ money, the investors filed suit, alleging that they state defendant law firm in Jones, Morrison agreed that it had had received legal services and trust account services from the provided legal services, whereas the lawyers in Fogarty had attorney, and that the attorney had not manifested his lack of denied providing legal services; and second, the law firm had consent to act as their attorney. The two investors asserted that assisted an Alabama-licensed law firm in the matter. the attorney had released their $500,000 without any documenta- Returning to the mass tort, the following scenario is not tion of the capital and/or service contributions of individuals in uncommon: an out-of-state mass tort firm acquires an inventory the group, without closing instructions and without written of 2,000 clients in Alabama and reaches a tolling agreement with

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the defendant manufacturer as to all 2,000 Alabama clients. The Alabama or engaged in the practice of law in the State of Alabama clients are simply held as inventory while a bellwether Alabama” and goes on to state that “[t]he term legal service case being tried in another state or while MDL negotiations provider includes professional corporations, associations, and partnerships and the members of such professional corpora- establish settlement values. At some point, when settlement val- tions, associations, and partnerships and the persons, firms, ues are established, the 2,000 Alabamians may be invited to par- or corporations either employed by or performing work or ticipate in a global or “aggregate” settlement. The settlement services for the benefit of such professional corporations, may involve thousands more of claimants in other states as well associations, and partnerships including, without limitation, law as various fee-splitting agreements among the mass tort counsel. clerks, legal assistants, legal secretaries, investigators, paralegals, and couriers.” The disbursement mechanism for the aggregate settlement 2. Section 6-5-574, Ala. Code 1975, provides: “(a) All legal serv- money may be established in another state. In the event of negli- ice liability actions against a legal service provider must be gence in the handling of an Alabama claim, the applicability of commenced within two years after the act or omission or fail- the ALSLA would likely depend on a determination of whether ure giving rise to the claim, and not afterwards; provided, that the out-of-state attorneys assisted an Alabama-licensed lawyer if the cause of action is not discovered and could not reason- for the benefit of that Alabama client. Failing that, the common ably have been discovered within such period, then the action may be commenced within six months from the date of such law of negligence would logically apply because an attorney can- discovery or the date of discovery of facts which would reason- not be “engaged in the practice of law in the State of Alabama” ably lead to such discovery, whichever is earlier; provided, fur- without a license, except on a pro hac vice basis. In fact, in ther, that in no event may the action be commenced more Fogarty, the plaintiff had not even pleaded the ALSLA, but than four years after such act or omission or failure; except, instead pleaded a claim for the “Unauthorized Practice of Law” that an act or omission or failure giving rise to a claim which occurred before August 1, 1987, shall not in any event be under Alabama Code Section 34-3-6, and it was that claim barred until the expiration of one year from such date. which the court held was sufficient to state a claim. The inappli- 3. Section 6-5-574, Ala. Code 1975, provides: “(b) Subsection (a) of cability of the ALSLA removes the absolute four-year limitations this section shall be subject to all existing provisions of law relat- bar, and, thus, could be critically important as a matter of law at ing to the computation of statutory periods of limitations for the the outset of a claim against an out-of-state attorney. commencement of actions, namely, Sections 6-2-1, 6-2-2, 6-2-3, 6-2-5, 6-2-6, 6-2-8, 6-2-9, 6-2-10, 6-2- 13, 6-2-15, 6-2-16, 6-2-17, 6-2-30, and 6-2-39; provided, that notwithstanding any Claims against attorneys are governed by the ALSLA only provisions of such sections, no action shall be commenced more than four years when there is an attorney-client relationship; otherwise, the after the act, omission, or failure com- claim is governed by general civil law. plained of; except, that in the case of a minor under four years of age, such minor shall have until his or her eighth birthday to commence such action.” 4. Section 6-5-574, Ala. Code 1975, provides: “(a). . . .provided, Conclusion further, that in no event may the action be commenced more Under the ALSLA, the statute of limitations is frequently the than four years after such act or omission or failure. . .” outcome-determinative issue and an issue which dominates the 5. Ex parte Stonebrook Dev., L.L.C., 854 So. 2d 584, 592 (Ala. 2003) (rejecting Panell in part because “Panell was a plurality case law relating to the Act. To even get to that issue, though, the opinion; its rationale was approvedby only three of the nine lawyer must first establish that the Act applies. Claims against members of this Court”). attorneys are governed by the ALSLA only when there is an 6. Ex parte Panell, 756 So. 2d at 867. attorney-client relationship; otherwise, the claim is governed by 7. Panell v. American Home Prods. Corp., 106 F. Supp. 2d general civil law. In cases where an involuntary attorney-client 1240, 1242 & n.2 (N.D. Ala. 2000)(“It is highly unlikely that relationship is alleged, the defendant attorney in denying the the six justices would ever agree with the rationale of Justice attorney-client relationship loses many of the protections of the See. In light of stare decisis, Panell cannot stand. . . . This ALSLA, in particular, the limitations provision and the opportu- result is nonsensical; a plaintiff cannot maintain an action until he has a cause of action. The limitations period could not only nity to argue an “act or omission” or occurrence limitations peri- run but expire before the plaintiff ever had a right to maintain od. In cases where an out-of-state attorney is sued by an an action.”) Alabama client in an Alabama court, the applicability of the Act 8. W. Michael Atchison and Robert P. MacKenzie, III, The and whether the ALSLA limitations provisions apply appear to Professional Liability of Attorneys in Alabama, 30 Cumb. L. depend on whether an Alabama-licensed attorney was also Rev. 453, 453, 483 and 483 n.3. (1999). involved in the provision of legal services. Once that hurdle is 9. Amy Ann Ray, A Fox Guarding the Henhouse: A Comment on overcome, the question becomes when the statute of limitations Ex parte Panell , 52 Ala. L. Rev. 743 (2001). began to run. On this point, the law has not yet been declared as 10. Cunningham v. Langston, Frazer, Sweet & Freese, P.A., 727 to whether the “act or omission” occurrence rule or the “injury So. 2d 800, 804 (Ala. 1999). or damage” rule commences the statute of limitations, thus leav- 11. Valentine v. Watters, 896 So. 2d 385, 391 (Ala. 2004) ing fodder for the attorneys, and toil for the trial judges. | AL 12. “[T]he ALSLA does not apply to an action filed against a ‘legal service provider’ by someone whose claim does not arise out of the receipt of legal services.” Cunningham v. Langston, Endnotes Frazer, Sweet & Freese, P.A., 727 So. 2d 800, 804 (Ala. 1. Alabama Code Section 6-5-572(2) defines a “legal service 1999). See also Fogarty v. Parker, Poe, Adams, and provider” as“[a]nyone licensed to practice law by the State of Bernstein, L.L.P., 961 So. 2d 784, 789 (Ala. 2006) (The

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Supreme Court of Alabama rejected a law firm’s argument that make it certain the parties do not deal on equal terms, but, on the ALSLA preempted all other claims because the law firm the one side, there is an overmastering influence, or, on the expressly denied throughout the proceedings that it had provid- other, weakness, dependence, or trust, justifiably reposed; in ed any legal services to the Fogartys, who were investors in an both an unfair advantage is possible. It arises in cases in which LLC represented by the law firm). It also does not apply to a confidence is reposed and accepted, or influence acquired, and devisee under a will. See Robinson v. Benton, 842 So. 2d in all the variety of relations in which dominion may be exercised 631, 637-638 (Ala. 2002) (holding that lack of privity between by one person over another.” the devisee and attorney barred the ALSLA claim, and noting, Cf. Hannon v. State, 48 Ala.App. 613, 618 (Ala. Crim. App. “Robinson also argues that his negligence claim against Benton 1972) and Satterwhite v. State, 359 So. 2d 816, 818 (Ala. falls outside the Legal Service Liability Act, § 6-5-570 et. seq., Crim. App. 1977)(“The relationship of attorney and client . . . Ala. Code 1975. However, the record shows that this issue places upon the attorney a position likened to a fiduciary calling was never raised before the trial court. Therefore, we cannot for the highest trust and confidence, so that in all his relations address this issue on appeal.”) and dealings with his client, it is his duty to exercise the 13. Line v. Ventura recited fiduciary duty broadly: “The fiduciary utmost honesty, good faith, fairness, integrity and fidelity.”) relation is not restricted to such confined relations as trustee 14. Note, An Expectations Approach to Client Identity, 106 Harv. and beneficiary, partners, principal and agent, guardian and L. Rev. 687 (1993). ward, managing directors and corporation, etc. It applies to all 15. Valentine v. Watters, 896 So. 2d 385, 391 (Ala. 2004). persons who occupy a position out of which the duty of good faith ought in equity and good conscience to arise. It is the 16. Section 6-5-578(b) provides: “Neither evidence of a charge of nature of the relation which is to be regarded, and not the des- a violation of the rules of professional conduct against a legal ignation of the one filling the relation.” (citations omitted) service provider nor evidence of any action taken in response “Such a relationship is one in which one person occupies to such a charge shall be admissible in a legal services liability toward another such a position of adviser or counselor as rea- action and the fact that a legal service provider violated any sonably to inspire confidence that he will act in good faith for the provision of the rules of professional conduct shall not give rise other’s interests, or when one person has gained the confi- to an independent cause of action or otherwise be used in sup- dence of another and purports to act or advise with the other’s port of recovery in a legal services liability action.” Accord Ex interest in mind; where trust and confidence are reposed by one parte Toler, 710 So. 2d 415 (Ala. 1998). person in another who, as a result, gains an influence or superi- 17. Southeast Transactions Manual, Section, 2.201, Model ority over the other; and it appears when the circumstances Engagement Letter.

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Adverse Reaction Without a Remedy By Steven F. Casey and David A. Lester

Most consumers decide whether to buy amended in 1962 to require drug compa- a brand-name or generic drug based on nies to show that their drugs were effec- 4 one of two considerations–price or myths tive through clinical trials. The amended regarding quality. Few, if any, give thought FDCA contained no provision by which as to whether their choice will affect their companies could gain approval of a ability to pursue a claim against the manu- generic version of a brand-name drug in 5 facturer in the event they suffer an adverse an abbreviated process. The generic drug reaction to the drug. However, after recent companies were hesitant to invest the decisions by the United States Supreme time and expense required for clinical tri- Court, consumers who purchase generic als and, as a result, by 1984, there were drugs may have no avenue to pursue claims 150 drugs whose patents had expired but against generic drug manufacturers for fail- for which there was no generic drug 6 ing to warn about potential adverse effects equivalent. In fact, only 35 percent of the of drugs. To comprehend how a consumer top-selling drugs with expired patents 7 could possibly suffer an adverse drug reac- had generic equivalents. tion and be left without a legal remedy, it is By the early 1980s, as the availability of helpful to review a bit of the history of drug generic drugs declined, the average price 8 regulations in the United States. for prescription drugs increased. The Food and Drug Administration (“FDA”) History began considering the possibility of implementing new regulations that would The Food, Drugs, and Cosmetics Act allow abbreviated new drug applications (“FDCA”) can trace its roots back to the for generic drugs.9 Instead, Congress 1 Pure Foods and Drugs Act of 1906. From intervened and passed the Drug Price 1906 to 1962, drugs were reviewed and Competition and Patent Term 2 approved only for safety. During this Restoration Act of 1984, better known as time, a generic version of a brand name the Hatch-Waxman amendments to the drug could be approved based upon the FDCA.10 The amendments sought to bal- submission of a “paper” new drug appli- ance two competing objectives: cation, which contained published scien- tific and medical literature demonstrating • Encourage competition from generic that the drug was safe.3 The FDCA was drugs and

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• Continue to provide incentives for from taking those drugs. Accordingly, liti- companies’ labeling defense in PLIVA, brand-name drug companies to develop gation has been a part of the pharmaceu- Inc. v. Mensing.28 new drugs.11 tical industry for as long as it has been around. Some adverse reactions are fore- The Hatch-Waxman amendments pre- Wyeth v. Levine seeable and drug companies warn of served the incentive for brand-name In April 2000, Diane Levine, a profes- those potential reactions in their labels companies to invest in research to devel- sional musician in Vermont, suffered a and warnings. Sometimes, there are reac- op new drugs by increasing the patent severe migraine headache and associated tions that were not discovered in clinical exclusivity period for new drugs.12 The nausea.29 She went to a local clinic, where trials. Over the years, plaintiffs have amendments also allowed brand-name she was treated with intramuscular injec- asserted claims against pharmaceutical drug companies to obtain patent exten- tions of Demerol, for the headache, and companies based upon countless theories sions for a period of time equal to the Phenergan, for the nausea.30 The injec- of liability, but most claims have included time the drug spent in clinical trials, so tions did not relieve Levine’s headache some variation of a common law failure that the brand-name drug company could and she returned to the clinic, where she to warn claim. reap the financial benefits from its new was again treated with Demerol and Both brand name and generic pharma- drug for the entire patent term.13 Phenergan, this time through an intra- ceutical companies have also experiment- The amendments streamlined the venous push injection.31 ed with many theories in defending process for approving generic drugs by Wyeth produces Phenergan.32 At the against failure to warn claims. For most of requiring only that manufacturers time Levine was treated, the drug’s label- the past generation, the “learned interme- demonstrate bioequivalence to an ing identifies intramuscular injection as diary doctrine” was an industry favorite.23 already-approved drug through the sub- the preferred method of administration.33 Under the learned intermediary doctrine, mission of an abbreviated new drug appli- The package insert warned in at least four a pharmaceutical company cannot be cation.14 Bioequivalence means that the places that adverse reactions, including held liable for a patient’s adverse reaction active ingredient in the generic drug is gangrene, can result from exposure of to its drug if the patient’s physician was absorbed at the same rate and to the same Phenergan to arterial blood.34 In fact, the aware that the possibility of such a reac- extent as the active ingredient in the FDA had reviewed Wyeth’s labeling for tion existed.24 In other words, the doc- brand-name drug.15 The tests required to Phenergan three years before Levine’s trine shifts liability from the prove bioequivalence are much less costly treatment and, during that review, ordered pharmaceutical company who had no than those required to prove safety and Wyeth to maintain its gangrene warning.35 interaction with the patient to the physi- efficacy.16 The amendments also require As you could probably guess, the cian, who knew the patient’s medical his- that generic drug companies label their healthcare provider who had given Levine tory, physical condition and other drugs with the same label that is approved the injection of Phenergan inadvertently medications the plaintiff was taking.25 for their brand-name equivalent.17 The injected it into her artery rather than her Today, some variation of the learned amendments further allowed generic vein.36 Levine developed gangrene in her intermediary doctrine has been adopted drug companies to submit abbreviated arm, which she ultimately had to have by 48 states.26 drug applications before the expiration of amputated. Levine sued the clinic and In the past few years, however, new the- the brand-name drug’s patent.18 This healthcare providers for malpractice and ories of defense have arisen in the phar- change alone shortened the average time settled those claims for $700,000.37 She maceutical industry that led to landmark between the expiration of a brand-name then sued Wyeth in Vermont state court, decisions from the Supreme Court of the drug’s patent and the entry of generic ver- asserting that Wyeth had inadequately United States. Brand-name drug compa- sions into the market from three years to warned of the dangers of injecting nies began arguing that plaintiffs could three months.19 Phenergan into an artery.38 not maintain failure to warn claims There is no doubt that the Hatch- Wyeth’s expert testified that Wyeth against them because it was the FDA, not Waxman amendments achieved the goal should have contraindicated intravenous the drug companies, who had the ulti- of increasing competition from generic injection of Phenergan on the drug’s mate say as to what is, and what is not, drug manufacturers. In 1983, generic labeling even though the FDA never contained in drug labels and warnings. drugs accounted for 13 percent of the pre- required such a contraindication.39 Wyeth Generic drug companies argued that scription drug market.20 In 2010, generic moved for summary judgment, arguing plaintiffs could not maintain failure to drugs accounted for 78 percent of all that the plaintiff’s state law failure-to- warn claims against them for two reasons: drugs sold in the United States.21 Today, warn claims were preempted by federal first, because the Hatch-Waxman amend- on average, more than 80 percent of a law.40 Wyeth explained that the FDA dic- ments require them to use the same labels brand’s prescription volume is replaced by tated the warnings that were included in and warnings on their drugs as are used generics within six months of patent expi- the Phenergan labeling and argued that on the brand-name equivalent; and, sec- ration22 state law could not require Wyeth to pro- ond, because neither the FDCA nor FDA vide different warnings.41 The trial court regulations provide a mechanism by rejected Wyeth’s argument and a jury Pharmaceutical Litigation which the generic manufacturers could awarded Levine a verdict for $7,400,000.42 After Hatch-Waxman amend the labels or warnings. The Wyeth appealed the verdict to the Supreme Court addressed the brand- As long as there have been prescription Vermont Supreme Court.43 Wyeth reiterat- drugs on the market, there have been name drug companies’ labeling defense in ed its argument that it could not comply patients who suffered adverse reactions Wyeth v. Levine27 and the generic drug

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with its federal duty to distribute Phenergan label at all times. It is charged both with In 2004, the warning label was changed to only under the precise labeling approved by crafting an adequate label and with ensur- read “[t]herapy should not exceed 12 the FDA and its Vermont common law duty ing that its warnings remain adequate as weeks in duration.”53 The label was once to give different warnings.44 The Vermont long as the drug is on the market.”49 again strengthened in 2009 when the FDA Supreme Court was unpersuaded and After the Supreme Court’s decision in ordered a black-box warning stating that affirmed the jury verdict.45 Wyeth v. Levine, most legal scholars con- “[t]reatment with metoclopramide can Wyeth petitioned the Supreme Court of cluded that the preemption argument was cause tardive dyskinesia, a serious move- the United States for a writ of certiorari.46 dead in the pharmaceutical failure to ment disorder that is often irreversible. . . . The Supreme Court issued its opinion in warn context. Needless to say, very few Treatment with metoclopramide for longer March 2010, rejecting Wyeth’s preemp- people foresaw the Court’s decision in than 12 weeks should be avoided in all but tion argument in a six-to-three decision.47 Mensing. rare cases.”54 After taking the drug as pre- The Court explained that the FDA’s scribed for several years, the plaintiff “changes being effected” (“CBE”) regula- PLIVA, Inc. v. Mensing developed tardive dyskinesia55 and filed tion provides that if a manufacturer is A year after its decision in Wyeth v. suit against the generic manufacturers and changing a label to “add or strengthen a Levine, the Supreme Court addressed the the manufacturers of the brand-name contraindication, warning, precaution, or generic drug manufacturer’s preemption equivalents, alleging that the manufactur- adverse reaction” or to “add or strengthen 50 ers failed to warn of the effects of long- argument in PLIVA, Inc. v. Mensing. The 56 an instruction about dosage and adminis- plaintiff in Mensing was prescribed meto- term use of metoclopramide. tration that is intended to increase the clopramide, the generic form of the brand- The generic and brand-name manufacturers moved to dismiss the plaintiff’s safe use of the drug product,” it may make name drug Reglan.51 At the time the the labeling change upon the filing of a plaintiff was initially prescribed metoclo- claims, arguing that federal statutes and supplemental application with the FDA pramide, the warning label stated that “tar- FDA regulations preempted the plaintiff’s and it need not wait for FDA approval.48 57 The generic companies dive dyskinesia . . . may develop in patients state law claims. The Court went on to explain that “it has argued that they were required to label treated with metoclopramide,” and the remained a central premise of federal the metcolopramide they produce with drug’s package insert added that “[t]herapy drug regulation that the manufacturer the same warnings that are required for for longer than 12 weeks has not been bears responsibility for the content of its Reglan, the brand-name form of the evaluated and cannot be recommended.”52

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drug.58 The brand-name companies drug it wishes to produce is equivalent to their injury. That could be true, but plain- argued that they owed no duty to warn an already-produced brand-name drug tiffs have pursued an alternate theory of consumers of the risks associated with and that the safety and efficacy labeling it liability which would compel a different taking the generic forms of their drugs.59 proposes is the same as that already result. The district court agreed and dismissed approved for the brand-name drug.67 This alternate theory was first advanced the case.60 On appeal, the Eighth Circuit Therefore, the Court reasoned, the generic in Conte v. Wyeth, Inc., a 2008 California affirmed the district court’s dismissal of drug manufacturers could not comply case.77 In that case, the plaintiff developed the brand-name manufacturers, but with the Hatch-Waxman amendments tardive dyskinesia after taking metoclo- reversed the dismissal of the generic and provide the strengthened warnings pramide for almost four years.78 He sued manufacturers.61 The Eighth Circuit that the plaintiffs contended were Wyeth, the manufacturer of Reglan–the found that the FDA regulations provided required, because the generic manufactur- brand name version of metoclopramide– mechanisms by which the generic manu- ers had no ability to change their labels.68 and three manufacturers of generic meto- facturers could propose changes for their In reaching this decision, the Court clopramide, alleging that the defendants labels.62 The generic manufacturers specifically rejected the Eighth Circuit’s should have known of a widespread ten- appealed the Eight Circuit’s ruling.63 reasoning that the generic manufacturers dency among physicians to mistakenly On appeal, the Supreme Court noted could have satisfied the state law warning prescribe metoclopramide for periods that a conflict between state and federal requirements by proposing label changes longer than that called for in the labeling law exists, making it impossible for a pri- to the FDA.69 The Court explained that because the label allegedly understated vate party to comply with both state and state law demanded a safer label, not the risks of extended treatment with federal law requirements.64 In such situa- communication between the manufactur- metoclopramide79 It was undisputed that tions, state law must give way.65 The er and the FDA.70 Therefore, even if the the plaintiff only ingested generic meto- Supreme Court found that a conflict exists generic manufacturers had proposed label clopramide, not Reglan.80 His claims between state law failure-to-warn claims changes to the FDA, they could not have against Wyeth were premised on misrep- asserted in the Mensing case and the compelled the FDA to approve such resentation in Wyeth’s labeling of Reglan Hatch-Waxman amendments to the changes.71 In such a circumstance, if the and in a monograph on Reglan it provid- FDCA.66 Specifically, the Court found generic manufacturers’ suggested label ed for the Physician’s Desk Reference.81 that, under the Hatch-Waxman amend- changes had not been approved, the The trial court entered summary judgments, a generic manufacturer seeking generic manufacturers would still be in ment in favor of the defendants and the approval to produce a generic form of a violation of state law.72 plaintiff appealed.82 brand-name drug must show that the The Supreme Court further noted that On appeal, the California Court of if the plaintiff had taken Reglan rather Appeals held that it is very likely that a than metoclopramide, her claims would doctor would rely on Wyeth’s Reglan not have been preempted. The Court product information when prescribing acknowledged that, from the plaintiff’s generic metoclopramide.83 Based on this perspective, the finding of preemption in logic, the California Court of Appeals this case but not in Wyeth v. Levine makes reversed the trial court’s entry of summa- little sense.73 The Court noted, however, ry judgment and held that a brand-name that Congress enacted meaningfully dif- manufacturer could be held liable for its ferent statutory schemes to govern gener- failure to warn consumers of generic ic manufacturers than it did to govern drugs of the adverse reactions they could brand-name manufacturers.74 The Court suffer from ingesting a generic version of concluded that those different statutes the brand-name manufacturer’s drug.84 and regulations lead to different preemp- While this may seem to be an incredi- tion results and noted that Congress and ble result, remember that the FDA regula- the FDA have the authority to change the tions impose a duty on the brand-name law and regulations if they so desire.75 manufacturer to provide an adequate Until Congress or the FDA adopts such label and to ensure that its warnings changes, plaintiffs will not be able to remain adequate as long as the drug is on maintain state law failure to warn claims the market. Generic manufacturers, on against the manufacturers of generic the other hand, must label their drugs drugs.76 with the exact language found on the brand-name drug’s label. Even so, a num- Failure-to-Warn Claims ber of courts have rejected the reasoning After Wyeth and Mensing of Conte.85 The Alabama Supreme Court has yet to weigh in on the Conte theory of Wyeth Mensing After the and decisions, liability, though the question is currently it would be easy to conclude that con- before it in question certified by the sumers who suffer adverse reactions from United States District Court for the taking a generic drug are left without a Middle District of Alabama, in Wyeth, legal remedy to compensate them for Inc. v. Danny Weeks.86

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Conclusion health.com/portal/site/ims/menu- 63. Id. item.d248e29c86589c9c30e81c03 64. Id. At this point, it is difficult to predict how 3208c22a/?vgnextoid=1648679328 liability for adverse reactions to generic d6f210VgnVCM100000ed152ca2RC 65. Id. drugs will be apportioned. It seems unlike- RD&vgnextchannel=4eb65890d33ee2 66. Id. ly that Congress and the Courts will allow 10VgnVCM10000071812ca2RCRD& 67. Id. vgnextfmt=default (Apr. 19, 2011). generic manufacturers to remain immune 68. Id. 22. Congressional Budget Office, “How from suit in failure to warn claims forever. 69. Id. Increased Competition from Generic The FDA or Congress may impose a duty Drugs Has Affected Prices and 70. Id. on generic manufacturers to seek changes Returns in the Pharmaceutical 71. Id. for their labels when they become aware of Industry,” http://www.cbo.gov/doc. 72. Id. cfm?index=655&type=0 (July 1998). adverse events that are not discussed in 73. Id. their warnings. In any event, this area of 23. In re Norplant Contraceptive Prods. 74. Id. the law has witnessed extraordinary Liab. Litig., 215 F. Supp. 2d 795, 806 (E.D. Tex. 2002). 75. Id. changes in the past few years and there is no indication that the evolution is close to 24. Id. 76. Id. an end. | AL 25. Id. 77. Conte v. Wyeth, Inc., 168 Cal. App. 26. Id. 4th 89 (Cal. App. 2008). 78. Id. Endnotes 27. Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009). 79. Id. 1. Food and Drug Administration, History, http://www.fda.gov/AboutFDA/What 28. PLIVA, Inc. v. Mensing, 131 S. Ct. 80. Id. WeDo/History/default.htm (October 2567, 180 L. Ed. 2d 580 (2011). 81. Id. 30, 2011). 29. Wyeth v. Levine, 555 U.S. 555, 129 S. 82. Id. Ct. 1187, 173 L. Ed. 2d 51 (2009). 2. Mossinghoff, Gerald J., “Overview of the 83. Id. Hatch-Waxman Act and Its Impact on 30. Id. 84. Id. the Drug Development Process,” Food 31. Id. and Drug Law Journal (1999): 187. 85. See, e.g., Mosley v. Wyeth, Inc., 719 32. Id. F. Supp. 2d 1340 (S.D. Ala. 2010). 3. Id. 33. Id. 86. Wyeth, Inc. v. Danny Weeks, Alabama 4. Id. 34. Id. Supreme Court, Case Number 5. Id. 35. Id. 1101397. 6. Id. 36. Id. 7. Congressional Budget Office, “How 37. Id. Increased Competition from Generic Drugs Has Affected Prices and 38. Id. Returns in the Pharmaceutical 39. Id. Industry,” http://www.cbo.gov/doc. 40. Id. cfm?index=655&type=0 (July 1998). 41. Id. 8. Mossinghoff, Gerald J., “Overview of the Hatch-Waxman Act and Its Impact on 42. Id. the Drug Development Process,” Food 43. Id. and Drug Law Journal (1999): 187. 44. Id. 9. Id. 45. Id. 10. Congressional Budget Office, “How 46. Id. Increased Competition from Generic Drugs Has Affected Prices and 47. Id. Returns in the Pharmaceutical 48. Id. Industry,” http://www.cbo.gov/doc. 49. Id. cfm?index=655&type=0 (July 1998). 50. PLIVA, Inc. v. Mensing, 131 S. Ct. 11. Id. 2567, 180 L. Ed. 2d 580 (2011). 12. Id. 51. Id. 13. Id. 52. Id. 14. Id. 53. Id. 15. Id. 54. Id. 16. Id. 55. Id. 17. Id. 56. Id. 18. Id. 57. Id. 19. Id. 58. Id. 20. Id. 59. Id. 21. IMS Institute for Healthcare 60. Id. Informatics, “U.S. Spending on 61. Id. Medicines Grew 2.3 Percent in 2010, to $307.4 Billion,” http://www.ims 62. Id.

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ALABAMA STATE BAR VOLUNTEER LAWYERS PROGRAM 2011 Pro Bono Honor Roll

Autauga County Robert L. Hagler, Jr. Daniel P. Sweet Steven J. Goldstein LeRoy Alan Cobb Donald M. Phillips Charles W. Ham Ashley E. Swink Roy M. Johnson, III Brian K. Combs Charles G. Reynolds, Jr. Joe T. Booth, IV Mary Ann Hampton Whit A. Thomas Brett A. King Richard W. Couch Chip W. Cleveland, II Warren T. Harbison Earl P. UnderwoodJr. Angela H. Sahurie Charles S. Doster Cherokee Clifford W. Cleveland Michael A. Hart David P. Vaughn Alexander M. Smith Wendy Ghee Draper Raymond J. Hawthorne, Jr. County Jule R. Herbert, Jr. Stacie E. Vitello Ted L. Williams, Jr. Robert B. Folsom, Jr. Harold Howell John D. Coggin J. Bradford Boyd Hicks Angela L. Walker John M. Gruenewald Karen H. Jackson Clinton G. Eubanks David A. Horton Sara C. Wallace Bullock County Leslie Susan Henderson Kimberly G. Kervin Marcie L. Foster Michael J. Hoyt Robert W. Waller, Jr. Christopher M. Hopkins Nancy M. Kirby Bradley S. Braswell William M. Hawkins, Jr. George R. Irvine, III A. Shane Weldon Janet May M. Hudson Jim T. Norman, III Christina D. Crow Chad A. Hopper Brian C. Isphording Chandra C. Wright Kenneth Alan Hunt, Jr. Andy W. Tampling, Jr. Lynn W. Jinks, III Summer L. McWhorter Joshua G. Kesling Marion E. Wynne, Jr. Rochelle D. Hunt George P. Walthall, Jr. Carmella J. Penn Albert L. Shumaker Harold A. Koons, III Charles E. Isom Louis Rutland Evan W. Smith Oliver J. Latour, Jr. Barbour County Carey N. Kirby Baldwin County Elizabeth C. Smithart Chad L. Stallings Jonathon R. Law Adrienne M. LaBudde Karen S. Benefield Rodney L. Stallings Shawn T. Alves Gregory L. Leatherbury, Jr. Fred Lawton, III Jimmy S. Calton, Jr. Butler County William D. Anderson Robert S. Lewis Christopher M. McIntyre Jimmy S. Calton, Sr. Chilton County Vincent A. Bellucci Corey B. Lipscomb Timothy O. Craig Stephen H. Miller Walter B. Calton Bayless E. Biles, Jr. J. Alan Lipscomb Lewis S. Hamilton William J. Miller Michael J. Askew W. Thomas Gaither W. Donald Bolton, Jr. Jessica M. McDill P. Richard Hartley Shirley A. Millwood Robert L. Bowers, Sr. Richard A. Harrison, III Katherine B. Bonnici Samuel G. McKerall Walton W. Hickman D. Brent Morrison Kimberly M. Henson Deborah W. Hicks J. Byron Brackin, III Leonard F. Mikul D. Nicky M. Miller Nathaniel D. Owens Elizabeth B. Hilyer J. Matthew Horne J. E. Bridges, III Barney A. Monaghan Danielle M. Miller William L. Pfeifer, Jr. David B. Karn James L. Martin H. Max Cassady, Jr. T. Deven Moore Angie R. Rogers Polly E. Russell Andrew T. Mayfield Donald J. McKinnon R. Paul Cater Mary E. Murchison Forrest C. Rule, Jr. William D. Senter Dale Rouse Waid Courtney Potthoff Allan R. Chason Joshua P. Myrick C. Brandon Sellers, III Aundrea M. Snyder L. Shane Seaborn John Earle Chason Meegan B. Nelson Samantha R. Sellers Gary G. Stanko Choctaw County Joel P. Smith, Jr. L. Brian Chunn Narissa G. Nelson Jason T. Simmons Brenda S. Stedham S. Boyd Whigham Michael W. Armistead Elizabeth A. Citrin T. Brandon Simmons Thomas B. Norton, Jr. Vaughn M. Stewart, II E. Mark Ezell Frances R. Clement Charlotte M. Tesmer Craig D. Olmstead Bibb County Cleophus Thomas, Jr. Timothy Clark Hutchinson James P. Coleman Stephen J. Townes James D. Patterson Stacy L. Upton J. Perry Newton R. Mike Conley Allyson C. Pearce Erica K. Boozer J. McGowin Williamson Nancy P. Vernon Craig A. Cargile Samuel N. Crosby Wendy A. Pierce Joseph E. Whittington Clarke County Manley L. Cummins Diane M. Porter John Hamilton, Jr. Calhoun County Anthony Johnson James E. Deshler, II Jim G. Curenton, Jr. J. Rachel Powell Christopher D. Albert Chambers Thomas G. Owings Wyman O. Gilmore, Jr. Harry M. D’Olive Julie H. Ralph David C. Alexander, Jr. County G. Marc Keahey Brian A. Dasinger Matthew E. Rone Jayme K. Amberson Lisa M. Burdette Robert D. Keahey Michael A. Dasinger, III Mark D. Ryan Blount County Jennifer L. Argo Mark H. Carlton Robert D. Keahey, Jr. Carolyn M. Dohn William E. Scully, Jr. John B. Boyd Hobart H. Arnold, III Bill P. Fuller, Jr. Ronnie E. Keahey Naomi G. Drake David P. Shepherd Harris S. Burns, III William H. Broome Susan K. Harmon Hardie B. Kimbrough Fred K. Granade Shelia V. Stone William A. Ellis, III Raymond C. Bryan James C. Ingram, Jr. Phillip E. Mason

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J. Charles McCorquodale, IV John M. Peek Clark V. Stewart Jonathan K. Espy Joseph C. McCorquodale, III Benton H. Persons, Jr. David W. Trottier William Feagin Lee B. Williams Roy Roderick Sylvester, II By this honor roll, the Alabama A. Wilson Webb D. Taylor Flowers Allen G. Woodard State Bar recognizes the Jonathan M. Welch Shana N. Gartlan Clay County following lawyers for their William R. Willard, Jr. Rafael Gil, III Crenshaw J. Curtis Wright Elizabeth B. Glasgow Joseph D. Ficquette participation in volunteer Harry P. Hall, II Justin C. Sellers County lawyers programs across the Steven R. Hamner Wayne Carter Fayette County Tilden J. Haywood Cleburne County Brandon S. Coots state. Their generous assistance, Charles A. Langley J. R. Herring Jon M. Folmar cooperation and dedication J. Dale Lawrence, Jr. Allison J. Miller Rob I. Hinson William R. King Louis P. Moore enable these programs to David K. Hogg Erin L. Massey Coffee County provide legal representation to Gary A. Hudgins John L. Nichols Franklin County Shannon R. Clark hundreds of disadvantaged Dow Huskey William M. Rayborn, Jr. Roger H. Bedford, Jr. Harry L. Gilder, Jr. Daniel F. Johnson Arlene Richardson Alabamians. Debbie L. Jared Lora Lea J. Johnson M. Dale Marsh Geneva County Patrick B. Jones, III Cullman County William J. Moore DeKalb County Shirley M. Darby Alfred J. Danner Kristy M. Kirkland Letitia L. Myers Rhonda D. Bruner Broox G. Garrett, Jr. Laura A. Dell Matthew Lamere L. Suzanne Bailey James M. Parker R. Champ Crocker J. Kirk Garrett Nicole B. Dyess Joseph D. Lane James E. Brisendine J. E. Sawyer, Jr. J. Chad Floyd Michael D. Godwin Letta Dillard Gorman L. Jan Laney Daniel S. Campbell J. P. Sawyer Stephen K. Griffith Jeremy L. Hawsey David J. Harrison E. Renee W Lee L. Jayson Carroll Griffin M. Shirley Shelbie G. Hankey Amanda C. Hines Jeffery D. Hatcher Allison Y. Lumbatis Milford L. Cushen Leon Merrill Shirley Kathryn A. King Edward T. Hines David F. Holmes John M. Maddox E. Allen Dodd, Jr. Jennifer R. Stanley James R. Knight John L. Jernigan, III Michael P. Hughes W. Davis Malone, III J. David Dodd Richard Waldrop John D. Knight Heather F. Lindsay John L. Knowles Charles H. McDougle, Jr. Dana J. Grimes Richard W. Whittaker Joseph T. Lowry Edward L. McMillan, IV Michael P. Lasseter Steve G. McGowan Gary Hartline Emily K. Niezer Sonya L. Pence Jeremy W. Mitchell Peter A. McInish Robert F. Johnston, Jr. Joshua M. O’Neal Everette A. Price, Jr. Rachel H. Sullivan Linda H. Meadows Colbert County Robert K. Jordan Robert A. Sapp, Jr. William R. Stokes, Jr. David T. Shaw Ronald C. Mendheim D. Edgar Black Patricia C. Kellett Amanda L. Stansberry-Johns Earnest R. White Paul F. Meyers, II Ouida Y. Brown Roger G. Killian Seth B. Thompson Jeffrey A. White Joseph Morris Andrew D. Dill Jeffery B. McCurdy Hale County Charles E. Warren, Jr. William W. Nichols Nicole Mintree Dill Robert T. Ray Patrick S. Arrington Etowah County Jake A. Norton Hartwell Alan Gargis Glenn A. Shedd William A. Holmes William H. Odum, Jr. Holli A. Gaston Dale County Patrick H. Tate Myron K. Allenstein James W. Parkman, III Myra L. Hammond Joe W. Adams John H. Ufford, II Rose Marie Allenstein Henry County Russell N. Parrish Douglas B. Hargett Robert H. Brogden W. N. Watson Michael D. Beach Dan Blalock, Jr. William G. Pierce H. Thomas Heflin, Jr. J. Nicholas Bull Robert G. Wilson Charles Y. Boyd Michael R. Goodman Nancy S. Pitman Harold V. Hughston, III Donna C. Crooks Michele G. Bradford Samuel C. Money H. Samuel Prim, III James D. Hughston Joseph J. Gallo Will H. Clay Elmore County James Derek Peterson Joel W. Ramsey William T. Johnson, Jr. Anthony R. Livingston H. Wayne Copeland D. Jason Britt Shannon A. Rash Charles Kelley Charles N. Reese Brad W. Cornett Bonita J. Caldwell Houston County David Woodham Rousseau Andrew L. McGee J. David Robinson Greg S. Cusimano Chrissy D. Calhoun M. Hamp Baxley Holly L. Sawyer John C. McKelvey Robert G. Robison Tameria S. Driskill Carla M. Coffey Wade H. Baxley Tommy R. Scarborough Tim W. Milam Tammy L. Stinson Christopher R. Garner Regina B. Edwards Bryan S. Blackwell Jere C. Segrest Terry Mock Everett M. Urech Patricia H. T. Granger John E. Enslen Steven K. Brackin Rufus Smith, Jr. Sheila F. Morgan Joe Walker F. Michael Haney Patrick J. Garrett J. Farrest Taylor Stanley Munsey Charles C. Hart Thomas K. Brantley, Jr. Michael A. Griggs Eric M. Wade Rebecca Narmore William D. Hudson Michael B. Brown Dallas County Brian D. Mann William B. Wadsworth C. Daniel Rosser, Jr. Daniel B. King Rebecca B. Brown Prince D. Chestnut Connie J. Morrow J. Kevin Walding Nathan A. Ryan Thomas A. King Debra Henderson Buchanan Danny W. Crenshaw John D. Norris Gregory L. Watt Amy J. Scott Christina D. Knowles W. Trant Bullard, Jr. April England Roderick B. Perdue Laura E. P. Wells Jenna B. Smith Gerald Maxwell William Terry Bullard B. Kincey Green, Jr. Victoria D. Relf Freddie White William J. Underwood Donna F. McCurley Dustin R. Byrd Spence A. Singleton Christmas Y. Green Philip E. Miles Jon Christopher Capps Brandon C. Stone James E. Loris, Jr. Elizabeth Haney Mills Terry M. Carey Jackson County Coosa County Susan W. Turley Blanchard L. McLeod, Jr. Jeffrey P. Montgomery William C. Carn, III G. Scott Berry Vanessa Leonard Stephen S. Weldon Collins Pettaway, Jr. Krystal G. Padula Tracy W. Cary Daryl R. Eustace Glenn D. Zimmerman John E. Pilcher Joe M. Chambers Stephen M. Kennamer Covington James D. Pruett Jeffrey C. Robinson Emily H. Raley Daniel K. Clark Patricia S. Lackey County Escambia P. Vaughan Russell, Sr. Richard A. Rhea H. Warren Cobb, Jr. S. Jack Livingston Corey D. Bryan Charles H. Sims, III County Michael L. Roberts Bobbie Crook Kenneth H. Looney Virginia W. Grimes Jan Garrison Thompson Dana L. Aydelott John T. Robertson, IV Patrick H. Davenport Pamela M. Parker Michael L. Jones, Jr. Rick E. Williams, III Thomas B. Brown Stephen C. Rogers Eric C. Davis William J. Parks, III Eugenia L. Loggins Brandon J. Wooten James E. Coale James T. Sasser Cory H. Driggers Gerald R. Paulk

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Frank B. Rice William N. Clark Julian M. Hendrix Carolynn H. Moore Romaine S. Scott, III Larry Young, Jr. Finis A. Royal Holly J. Clemente R. Abbey M. Herrin Glen C. Moore James V. Seal Tiara S. Young-Hudson Patricia C. Stewart Brian M. Cloud Jamin W. Hogan Patricia N. Moore Melinda E. Sellers Edward I. Zwilling William W. Tally John D. Collins Rhonda S. Hood Shannon Y. Moore Ahmad M. Shabani Mike C. Bradley Don Word Gregory C. Cook Joshua L. Hornady Robert E. Moorer Heather R. Sharp Joan M. Budd Benjamin H. Cooper Kaye K. Houser James E. Morgan, Jr. C. Winston Sheehan, Jr. Kay L.M. Cason Jefferson Robert E. Cooper T. Brian Hoven Brenton K. Morris Amy J. Shields James V. Doyle County Robert D. Cornelius Calvin Howard Mari Morrison Joan B. Singleton David Jason Hodge E. Ashley Cranford David L. Hubbard Anne R. Moses Byron B. Slawson Karen G. Knowlton Garry W. Abbott Melissa B. Croxton John C. Hubbard J. Leland Murphree Melissa E. Smiley Deborah A. Mattison Cassandra W. Adams Richard A. Cusick Miles M. Huffstutler Drayton Nabers, Jr. Austin E. Smith Spencer M. Taylor Vincent L. Adams John G. Dana Sidney J. Hughes John T. Natter David Smith Sam E. Wiggins Adedapo T. Agboola Jeffrey S. Daniel Elizabeth H. Huntley George M. Neal, Jr. Marshall E. Smith, III Monica Y. Agee Alyssa N. Daniels Thomas J. Huseman Laura C. Nettles William E. Smith Frank G. Alfano Lamar County Dow A. Davidson Kearney D. Hutsler, III David T. Newton William F. Smith, II David B. Allen Glenn Carlyle Noe Kelvin L. Davis Paul A. Irwin, Jr. S. Hughston Nichols Anthony D. Snable Leslie M. Allen Audrey O. Strawbridge Peter J. Davis Wyndall A. Ivey Chris J. Nicholson Joshua C. Snable Keith S. Anderson Stephen D. Davis, II Perry G. Jackson Andrew S. Nix Joseph C. Somma Ricardo Aparicio Lauderdale Tracy R. Davis Derry D. Johnson William G. Nolan Brian D. Spellen Robert A. Arnwine, Jr. County Jonna Miller Denson Chadwick L. Jones Robert M. Norris, Jr. A. Jackson Sperling J. H. Aughtman Shawanna R. Dobson Kristofor W. Kavanaugh Robert E. Norton Stephen F. Springfield Elizabeth E. Berry Donna M. Bailer David D. Dowd, III Robert C. Keller Tabor R. Novak, Jr. Gregory C. Starkey Ian M. Berry Anderia L. Bailey Carl K. Dowdey, III Robert J. Kelly Horace V. O’Neal, Jr. Amelia K. Steindorff Kerrian S. J. Berryhill David P. Bains Kristi A. Dowdy Robert E. Kirby J. Edmund Odum, Jr. Jeremy P. Summers Ernest N. Blasingame, Jr. John S. Baker, IV Jessica K. Drennan Kelly R. Knight Shane M. Oncale James M. Terrell Daniel E. Boone Tammy L. Baker Khristi D. Driver Robert R. Kracke J. Bentley Owens, III Thomas E. Thrash Ryan G. Brake Bryan O. Balogh Matthew A. Dunaway Kristen A. Larremore Robert L. Palmer Tyrone Townsend Greg K. Burdine Mary Lynn Bates Hallman B. Eady Linda Sanford Lehe Angela D. Parker Ayn Traylor-Sadberry Christopher G. Childers Kimberly M. Bawgus Mark C. Eagan Rocco J. Leo Carnesa T. Parker-Kynard Michael D. Tucker Debra H. Coble Charles A. J. Beavers, Jr. W. Lee Elebash Jon E. Lewis Alexandria Parrish Douglas B. Turnbull Edward W. Doggett Mary C. Beers Rufus E. Elliott, III Yue Li Jon H. Patterson Tyler C. Vail Kristi Driskill Erin C. Bell Lauren J. Ellison Christopher S. Linton E. Bryan Paul Nathan C. VanDerVeer James R. Engelthaler Kathryn L. Bettis Barbara E. Estep Thomas M. Little Theodore R. Pearson Michael A. Vercher Michael Fraser Ford Brandon T. Bishop Barton B. Evans Jack B. Long Thomas B. Pearson Jonathan K. Vickers Nicholas H. Gajewski Nakita R. Blocton Maston A. Evans, Jr. William J. Long, IV Ashley R. Peinhardt Hallie B. Wagner Robert L. Gonce Natalie R. Bolling Jesse Evens, III Bobby Lott, Jr. Eric G. Peterson Susan S. Wagner Benjamin R. Graves Charles H. Booth, Jr. Steven D. Eversole Champ Lyons, III Raymond L. Pharo, Jr. Marion F. Walker James E. Hall, II Alexia B. Borden Michael B. Fargarson Thomas J. Mahoney, Jr. Matthew Z. Phelan Twala G. Wallace Sara N. Holmes Bradford W. Botes Joseph A. Fawal B. Saxon Main Staci M. Pierce William B. Ware R. Willson Jenkins, Jr. Anna-Katherine G. Bowman Carmen S. Ferguson J. Brannon Maner Michelle K. Pieroni Katrina Washington Gary L. Jester Gordon J. Brady, III Daniel J. Ferretti T. Sheree Martin J. Randall Pitts, Jr. Ashley E. Watkins Cory T. King Keith E. Brashier Sean L. Finan Fred B. Matthews Denise B. Poe Damon T. Watson Katy B. Lewey Nicholas K. Braud Monica N. Fischer Bradley Curtis Mayhew Andrew James Potts Jordan D. Watson David L. McAlister E. L. Brobston Shayla R. Fletcher Phillip W. McCallum Lorraine W. Pringle Joseph E. Watson Mollie H. McCutchen Brian P. Brock Elizabeth R. Floyd Terrence W. McCarthy William F. Prosch, Jr. Latanisha Watters Elizabeth G. Messer Katherine R. Brown Alan L. Foster John P. McClusky Eric L. Pruitt John G. Watts Daryl Wayne W. Moon Keith A. Brown Robert P. Fowler Reginald D. McDaniel LaShaun R. Pryor Kenneth E. Watts Kim A. Norris T. Michael Brown Patrick W. Franklin John H. McElheny Randall D. Quarles Gary L. Weaver A. Stewart O’Bannon, III Whitney R. Brown V. Edward Freeman, II Mary C. McGowan William A. Ratliff Andrea L. Weed C. David Odem Michelle N. Butler Peter S. Fruin M. Elizabeth McIntyre Gregory J. Reid Pamela B. Weed Dennis N. Odem Michael E. Bybee A. Brantley Fry Jodi L. McKelvin Jennifer H. Reid Martin E. Weinberg Tina M. Parker Donna K. Byrd Robert S. Gargis, II Stephen P. McMunn Richard A. Rice Amber M. Whillock Joe M. Patterson, Jr. Gregory A. Cade Tena M. George Douglas L. McWhorter Myra C. Roberts J. Bennett White Harold G. Peck Matthew M. Cahill Kristel N. Gibbons Veronica L. Merritt Brandon N. Robinson Derry Olive Wilcox Sean C. Pierce Leslie A. Caldwell James W. Gibson Davis Middlemas Lisa C. Robinson Christopher J. Williams Conrad Pitts Angela C. Cameron Leatha Kay Gilbert Dana Tara Middleton April S. Rogers Ronald D. Williams Jamy B. Poss Robert Joseph Camp William P. Glass, Jr. Cellie W. Miller Robert M. Rosenberg Jenny R. Wilson Frank Potts Thomas F. Campbell Robert L. Gorham Rodney E. Miller Edward Kenneth Rosser Debra Bennett Winston Cindy S. Schuessler Michael L. Capleone Irene M. Graves Shannon L. Miller Kathryn H. Rowan Chereka L. Witherspoon Henry F. Sherrod, III David A. Carn Bryan A. Grayson Zachary D. Miller Samantha B. Rush Robert W. Wolfe Curtis M. Simpson Jack Carney Larry L. Halcomb Joy J. Minner Russell J. Rutherford Edward K. Wood Troy A. Skipworth Dawn S. Carre Peter H. Harralson Anne W. Mitchell Terrie A. Sadberry Fredrick M. Wright Temberly T. Sledge Hnter C. Carroll Elizabeth Davis Harris Christopher A. Mixon Vincent J. Schillieci, III Richard A. Wright Hilda Trapp Smith Michael W. Carroll Wallis S. Haynes Randall G. Moffett David L. Scott Tamula R. Yelling Robert F. Smith Monica L. Carroll Margaret J. Head Deborah B. Montgomery Rita H. Scott Christy L. Young Ricky V. South Kevin E. Clark

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Jeremy P. Taylor J. Alex Muncie, III Christopher A. Pankey John P. Burson Donald G. Tipper Courtney C. Murchison Sandra D. Parker Jimmy F. Carnes Albert J. Trousdale, II Roben Nutter The Alabama State Bar and J. Clark Pendergrass Diana L. Charlton Heath F. Trousdale Blake L. Oliver the three organized pro bono JoAnn M. Perez Norma M. Chaviers Randy D. Whitten Phyllis F. Parker programs (Birmingham Bar Charles G. Pittman Rodney L. Edmondson Douglas Wright Robert H. Pettey, Jr. Association VLP, Executive Timothy P. Pittman Richard Fricks Joe H. Yates Roger W. Pierce Valerie H. Plante John C. Gullahorn Stephanie Pollard Director Kelli Hogue Mauro, Emily B. Prater Lisa Milner Hancock Lawrence Wanda M. Rabren www.vlpbirmingham.org; Richard R. J. Raleigh, Jr. Charles Hare, Jr. County W. Larry Ray Madison County Bar Sreekanth B. Ravi Deborah K. King Mitzi L. Sears Gregory H. Revera Jamie P. Logan Rod M. Alexander Association VLP, Executive James B. Sprayberry James H. Richardson Jonathan M. Lusk Mark A. Dutton M. Elaine A. Thomaston Director Angela Rawls, Michael F. Robertson Louis B. Lusk Christy W. Graham Philip A. Thompson Aaron C. Ryan Emery D. Massey John D. Kimbrough vlpmadisoncounty.com; and Cecil Tipton, Jr. L. Thomas Ryan, Jr. John M. Mastin Sean Masterson Mobile Bar Association VLP, Edward F. Tracy Brad P. Ryder Clint L. Maze Harold Speake Robert A. Tufts Executive Director Shannon Sandra R. D. Segal Norma A. McCord Mike F. Terry Philip O. Tyler M. Shelley-Tremblay, Leslie C. Sharpe Jeff R. McLaughlin H. Jerome Thompson Arnold Umbach, Jr. www.vlpmobile.org) salute all Kristy D. Shelton J. Shannon Mitchell Kimberly D. White Kay G. Siniard Lea L. Mosley Lee County private attorneys across the Clinton L. Wilson Ronald W. Smith E. Charles Ogden, III Lance E. Abbott state who gave their time to Mark D. Swanson Gregory K. Price John T. Alley, Jr. Limestone providing free legal assistance Shelly Thornton Kenneth L. Scheinert Billy B. Amason County to low-income persons. H. Carey Walker, III Danny Smith Brian Ashley Frank S. Ward Stephen B. Smith Henry W. Blizzard, Jr. Russell C. Balch C. Rena Webb Steven V. Smith Zachary L. Burgreen James Tutt Barrett Bobbi J. Weeks-Wilson Michael T. Tewalt Stephen G. Campbell John Baggette, Jr. Richard L. Guido J. Gary Black Ashley G. White Byron Waldrop R. Garry Clem Walter A. Baker Andrea M. Hamlett Elizabeth M. Borg Gayle N. Williams James D. Walker James M. Corder, Jr. Page A. Banks David A. Hatfield Beverlye N. Brady Dan T. Warnes Aaron N. Ezell Rebekah P. Beal Kevin D. Heard Margaret Y. Brown Bradley J. Watson Dihanne Perez Guilbert Anna Blair Gabrielle Helix Marengo Samantha L. Burt Stephen W. Williams Byrd R. Latham Justin M. Bledsoe Tara L. Helms County Rebecca P. W. Buxton Wade K. Wright Harlan D. Mitchell Alisha D. Bond Danny D. Henderson Thomas H. Boggs, Jr. M. Joanne Camp James D. Moffatt James K. Brabston Mary R. Hill Russell Burdett John E. Cochran Laura M. Nichols Larry W. Brantley Steven M. Howie William Coplin, Jr. Mobile County Robert H. Cochran, Jr. Mitchell K. Shelly Pamela E. Brown-Briggs Michael P. Huff Woodford Dinning, Jr. Christina M. Adcock William D. Coleman John M. Totten William G. Burgess Claude E. Hundley, III John M. Gibbs Gary P. Alidor, Sr. Andrew D. Cooper Jere C. Trent Clint W. Butler Benjamin W. Hutton Gregory Griggers Matthew J. Bauer Larry G. Cooper, Jr. Brandon C. Wise Cheri D. Campbell Jeffrey B. Irby William S. Poole, Jr. Kimberly L. Bell Paul R. Cooper Frank M. Caprio Laura D. Jacobs Sebie G. Sellers Britten L. Britt William T. Crutchfield Richard C. Carter, Jr. Amber Y. James K. Scott Stapp Harwell E. Coale, III Patrick C. Davidson Lowndes County Shannon M. Cazzavillan Corey W. Jenkins William A. Ward Lisa Cooper Nancy Jones Davis Jerry L. Thornton Richard E. Chesnut Jerrery A. Johnson Andrew J. Crane William David Dawson Donald L. Christian, Jr. Michael P. Johnson Eric B. Cromwell, II Joseph C. Denison Macon County Marion County P. Michael Cole Sharon A. Johnston Aurelius E. Crowe W. Don Eddins William H. Atkinson Deborah H. Biggers Meteasa L. Collins George P. Kobler Craig D. Dahle Thomas M. Eden, III J. Tony Glenn George B. Bulls, II Rochelle A. Conley Winston V. Legge Kristin L. Daniels Ewell H. Elliott, Jr. C. Harry Green Katy Smith Campbell Maureen K. Cooper Lee S. Leggett, Jr. Margaret F. Demeranville Jason A. Forbus Diane H. Henderson Christopher A. Ford Edmund A. Crackel, III Robert C. Lockwood Timothy W. Fleming Van C. Gholston R. Wyatt Howell, Jr. Bridgett V. Gray Timothy P. Cummins Christopher W. Long Carl E. Freman James K. Haygood, Jr. J. O. Isom Fred D. Gray, Jr. Suzette E. Daniels Johann R. Manning, Jr. Barry A. Friedman Patrick Hays, Jr. A. Wade Leathers Linda W. H. Henderson John M. Debro Kimberly B. Martin Richard M. Gaal Joshua J. Jackson Matthew B. LeDuke C. Chuck James, II Patricia D. Demos M. Clay Martin Ronald R. Goleman, Jr. Tom E. Jones John V. Martine Tiffany N. Johnson-Cole Suzanne C. Dorsett Ben L. McArthur Timothy M. Grogan C. Robin Kelley Lonnie D. Spann Ernestine S. Sapp Bennett R. Driggers, Sr. John B. McDaniel Brandy B. Hambright Glen D. King Jeremy L. Streetman Brian P. Strength Matt T. Dukes Tina R. McDonald Katie L. Hammett Katherine M. Klos O. Fred Wood R. Keith Thomas Robert C. Gammons Reta A. McKannan N. Stewart Hanley Margaret Ann Mayfield Mickey J. Gentle Christopher M. Messervy Roy Wallace Harrell, III John W. McCollum, Jr. Marshall County Madison County Samuel H. Givhan David E. Mixon Jeffery J. Hartley James D. McLaughlin L. Ann Grace George Allen Moore Jerry W. Baker, Jr. Christine C. Hernandez Marrell McNeal Elizabeth W. Abel Rebekah L. Graham Yancey A. Moore, III George M. Barnett R. Scott Hetrick Robert T. Meadows, III James R. Accardi Patrick H. Graves, Jr. Chad A. Morgan E. Will Beard C. Gary Hicks Gail Smith Meek Joseph D. Aiello Kevin C. Gray Grady L. Morgan Randy Beard Charles A. Hicks Kimberly A. Moody Allison B. Akins Jonathan Grayson Rachel Murphy Morgan James R. Berry Jennifer Holifield Brian T. Mosholder Eric J. Artrip R. Claud Burke Angela S. Ary Lisa F. Grumbles Patrick G. Nelson D. Chuck Holtz

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Herndon Inge, III Samuel Adams Gordon T. Carter Bill H. Fuller, Jr. Nick A. Jones J. Flynn Mozingo William B. Jackson, II Alyce R. Addison Kristin A. Carter Jacob A. Fuller Rhon E. Jones Robert F. Nelson Ishmael Jaffree Mary M. Alexander-Oliver Mark N. Chambless Cleophus J. R. Gaines, Jr. Jarred E. Kaplan Stephen M. NeSmith Clifford W. Jarrett Kelli G. Alfreds William R. Chandler Tim J. F. Gallagher Richard K. Keith Deborah M. Nickson Candace L. Johnson Matthew B. Alfreds John W. Charles, III R. Brett Garrett Susan E. Kennedy Robert F. Northcutt Gregory R. Jones Deanie C. Allen Marion D. Chartoff Richard B. Garrett T. Cowin Knowles Dorothy F. Norwood Kyla G. Kelim J. Greg Allen Paul A. Clark C. Nelson Gill Thomas E. Kondrak P. Leigh O’Dell Christopher Kern David E. Allred Laura L. Clemons Richard H. Gill Nathan F. Kuykendall Christy L. Olinger Clay A. Lanham Charles L. Anderson Kimberly M. Clenney H. Lewis Gillis Christine D. Lankey Kim B. Oliver Byron Lassiter James H. Anderson William P. Cobb, II Carla C. Gilmore Robin G. Laurie Patricia R. Osuch Tracie B. Lee-Roberson Jesse K. Anderson Michael J. Cohan Chris D. Glover Barry C. Leavell Jobe T. Ott James E. Loris, Jr. D. Mike Andrews Shawn J. Cole Michael O. Godwin W. Don Letford Mark A. Overall Yancey Davis Lott, Jr. J. Knox Argo G. Baron Coleman Larry A. Golston, Jr. Joseph B. Lewis Jack C. C. Owen, Jr. Darlett Lucy-Dawson Shapard D. Ashley Zachary T. Collins William Gordon Sandra H. Lewis Debora E. Palmer Melinda L. Maddox Zack M. Azar Sabrina L. Comer C. Lance Gould Daniel L. Lindsey, Jr. J. Ed Parish, Jr. Edward R. March, III Gary A. C. Backus Joel D. Connally Virginia C. Green Donald B. Little George R. Parker James H. McDonald, Jr. J. Evans Bailey Roianne H. Conner Yong U. Gregg John A. Little Hilary Yother Parks Jeffrey Garrett Miller Angela T. Baker Pamela Gooden Cook Bradford J. Griffin Ben L. Locklar Jo K. Parr Jennifer S. Morgan Ben E. Baker, Jr. W. Chad Cook Matthew R. Griffith J. Heath Loftin Kelly F. Pate Kenneth A. Nixon Charles W. Barfoot Lee H. Copeland Archie I. Grubb, II Jada Sarah Kate Loftin Charles Paterson Louis C. Norvell Judy H. Barganier John C. Craft Norman O. Grubbs Charlene W. Long Simeon F. Penton, II Sonya A. Ogletree-Bailey Constance S. Barker C. McDowell Crook, Jr. John Hagood Felicia A. Long Michael J. Petersen Terrie S. Owens Noel S. Barnes Michael J. Crow Timothy C. Halstrom Virginia R. Lucci A. Wesley Pitters Melinda J. Parks R. Lee Barnes George B. Crum James D. Hamlett Aaron J. Luck Robert Pittman J. Day Peake H. Clay Barnett, III Laura L. Crum Deborah Q. Harding Terry W. Luck, III Jessica S. Pitts Dottie B. Perry Jere L. Beasley Geraldine R. Daniels D. Brent Hargett Thomas G. Mancuso Ben E. Pool Mary E. Pilcher Julia A. Beasley Stephanie O. Daniels Alan T. Hargrove, Jr. Joshua F. Mandell Gregory M. Pool Austin S. Prestwood James E. Beck, III Beau F. B. Darley, III Gerald W. Hartley Jennifer E. Marcato Debra Haynes Poole Wanda B. Rahman Luther D. Bentley, IV Greg L. Davis Frank H. Hawthorne, Jr. Emily C. Marks J. Cole Portis David L. Ratcliffe Terrie S. Biggs J. Ladd Davis James G. Hawthorne, Jr. John W. Marsh R. E. Poundstone, IV Jennifer L. Roselius Andy D. Birchfield James E. Davis, Jr. William S. Haynes Danielle W. Mason Tonya D. Powell Troy T. Schwant William R. Blanchard, Jr. Mark T. Davis Thomas R. Head, III W. Troy Massey Brandy F. Price Mary Kathleen W. Steele Donna A. Bland William Richard Davis J. Cliff Heard Karen L. Materna Charles Price, II K. Brandon Strickland J. Rodney Bledsoe Richard C. Dean, Jr. David W. Henderson R. F. Matt Matthews, Jr. Jeffrey D. Price Charles E. Tait James G. Bodin, Jr. Jim L. DeBardelaben D. Mitch Henry Mitch McBeal Melissa A. Prickett Chad M. Tatum Bethany L. Bolger Stephen P. Dees Charles R. Hill, Jr. Richard L. McBride, Jr. Brittany R. Ramey Bryan A. Thames LaBarron N. Boone Kimberly S. DeShazo J. C. Rudy Hill Megan K. McCarthy Brooke E. Reid Scott L. Tindle Britt S. Booth James R. Dickens, Jr. Jamie K. Hill Tiffany B. McCord Brooke E. Reid Michael J. Tonder Chris D. Boutwell Craig S. Dillard Thomas B. Hill, III W. Joseph McCorkle, Jr. Robert D. Reynolds James R. Turnipseed David R. Boyd Mitchell D. Dobbs Edward C. Hixon Mickey G. J. McDermott Robert M. Ritchey Deena R. Tyler Andrew E. Brashier Gail H. Donaldson M. Guy Holton J. Douglas McElvy Jim A. Rives P. Dean Waite, Jr. Gerald C. Brooks Alison L. Douillard Ronald A. Holtsford Mahaley P. McInnes Robert D. Rives Leslie Gail Weeks Richard E. Broughton Jeffery C. Duffey Rosemari C. Hopson April W. McKay William P. Roberts, II Shuntavia W. Woods Bowdy J. Brown Roy C. Dumas Vania L. Hosea Richardson B. McKenzie, III Bill H. Robertson, V Jim W. Zeigler E. T. Brown Priscilla B. Duncan Edward A. Hosp Samuel J. McLure Riley W. Roby David B. Zimmerman Ben E. Bruner Kendall C. Dunson Beverly J. Howard Gloria J. McPherson Karen S. Rodgers Chad W. Bryan Russell T. Duraski John Allen Howard, Jr. Julian L. McPhillips, Jr. Lindsay C. Ronilo Monroe County Judkins M. Bryan Charles W. Edmondson S. Scott Hoyem Kelly F. McTear Alan E. Rothfeder Michael D. Brymer James M. Edwards J. Lister Hubbard Benjamin H. Meade A. Rothschild Lynn B. Byrd Paul E. Burkett Thomas R. Edwards Joseph L. Hubbard, Jr. LaTasha A. Meadows Robert J. Russell, Jr. Tonja B. Carter Dayna R. Burnett Joana S. Ellis R. Austin Huffaker, Jr. Ted G. Meadows J. Lenn Ryals John M. Coxwell, Jr. Anthony B. Bush Matthew T. Ellis Norman Hurst, Jr. Tyrone C. Means Allen H. Ryu Katharine A. W. Coxwell James A. Byram, Jr. Frederick T. Enslen, Jr. Henry H. Hutchinson, III William Z. Messer M. Wayne Sabel, Sr. William J. Coxwell David B. Byrne, III Paul D. Esco Melissa L. Isaak Thomas J. Methvin Mark W. Sabel, Jr. Jeff D. Dyess Valerie M. Cain R. Graham Esdale, Jr. Branson T. Isleib W. Dee Miles, III Joseph M. Saloom Laura R. Grantham Richard F. Calhoun, Jr. Quindal C. Evans Michael S. Jackson J. Parker Miller Robert E. Sasser Nicholas S. Hare, Jr. Louis M. Calligas Greg B. Everett Jimmy D. Jacobs Keith S. Miller William P. Sawyer Donna L. Silcox Laura A. Calloway Hamilton N. Farmer Marci S. Johns Tamika R. Miller Yvonne A. H. Saxon Lori L. Stokes Boyd F. Campbell Ben H. Farrow Adrian D. Johnson Neah L. Mitchell Ben E. Schoettker Mickey Womble Joseph R. Campbell, II E. Peyton Faulk D. Kyle Johnson Brian W. Moore John E. Searcy, Jr. Montgomery Marvin H. Campbell Winn S. Faulk L. Scott Johnson, Jr. Joseph S. Moore Patrick L. W. Sefton Malcolm N. Carmichael Clark D. Fine James E. Johnston Stanley A. Moorhouse Bobby Segall County Gregory A. Carr Richard M. Freeman, Jr. Jamie A. Johnston Fernando A. Morgan Joshua S. Segall William K. Abell Clint C. Carter Kayla W. Frisby Sarah S. Johnston Rick D. Morrison Mary B. Sellers Russell T. Abney Elizabeth B. Carter Michael A. Fritz, Sr. Donald R. Jones, Jr. F. Chadwick Morriss Will B. Sellers

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L. Landis Sexton Barry A. White John A. McBrayer Charlye S. Adams T. Grant Sexton, Jr. Michael L. White John E. Medaris Stuart D. Albea LaKesha B. Shahid David J. Wilder Organized pro bono programs Amanda M. Minor Cynthia Lee Almond Roman A. Shaul J. Reed Williams make us keenly aware of the E. Farley Moody, II M. Bradley Almond William A. Sheehan James E. Williams contribution and concern of Karin I. Park David M. Andres Kenneth J. Shinbaum Trina Sanders Williams Tyrone Quarles Patrick D. Andres Kyle C. Shirley Ben C. Wilson many of our colleagues and Edward A. Robinson Caroline Armstrong J. Carlton Sims E. Ham Wilson, Jr. remind us of our own need to P. Shawn Rumsey L. Foster C. Arnold Clifton E. Slaten I. Mike M. Winter serve our community through Steven R. Sears E. Kenneth Aycock, Jr. Valerie M. Smedley April D. Wise Candice J. Shockley A. Colin Barrett A. Bradley Smelser E. Frank Woodson, Jr. our profession. We hope that Carl Wayne Simmons C. Park Barton, Jr. Ashley N. Smith James L. Wright all lawyers will someday partic- J. Timothy Smith Ariel S. Blocker Jeffrey W. Smith ipate in organized pro bono Jonathan A. Spann Nettie C. Blume Mark E. Smith Morgan County programs so that we can recog- Gerald A. Templeton Gaines B. Brake Sylvester S. Smith Josh E. Torres Bryan S. Brinyark James G. Adams, Jr. W. Roger Smith, III nize their contributions too. Harold E. Woodman H. E. Browder Roy S. Anderson Stanley R. Snyder Alex A. Yarbrough Sarah J. Brown Douglas R. Bachuss, Jr. Scott M. Speagle Alex Andrew Yarbrough Pam H. Bucy Howard M. Belser, III Sidney B. Spear Jason E. Burgett Jeffrey S. Brown Perry County Saint Clair Charles A. Stakely, Jr. Sumter County Patrick S. Burnham Stephen F. Brown James M. Barnes, Jr. County Patsy F. Standerfer Anna F. Burns Robert L. Burrell Kirtley W. Brown Annette T. Butler William C. Brewer, III Angela C. Starr Jane L. Calamusa Kelly D. Butler Robert D. Bryant Candace B. Crenshaw Richard G. Cross Chad E. Stewart Michael J. Cartee Thomas A. Caddell Robert H. Turner, Jr. Michael A. Dillard, Jr. I. Drayton Pruitt Chuck A. Stewart, III Susie T. Carver David B. Cauthen, Jr. James E. Finley Nathan G. Watkins Joseph G. Stewart, Jr. Frank M. Cauthen, Jr. Carl A. Cole, III Pickens County Erskine Funderburg, Jr. Micki Beth Stiller Mary Beth W. Cavert Carl M. Cowart, Jr. Alan C. Furr Talladega Michael G. Strickland William D. King, IV Randall M. Cheshire Tina R. Dawes Luther S. Gartrell, III County William R. Sutton John A. Russell, III D. Wayne Childress Thomas M. Di Giulian William T. Hamlin Pamela Swan Laurie S. Andrijeski Ginger D. Cockrell Bingham D. Edwards R. Lyle Harmon Scott R. Talkington Pike County Cheryl D. Barnett J. Michael Comer Arthur Groover Peggy C. Hooker Thomas C. Tankersley Shelly L. Barnhart Jaime Webb Conger Stephen V. Hammond Richard D. Cervera Guy C. McCombs, III Sarah Clark Bowers Dana G. Taunton Robert C. Faircloth John M. Conger Thomas J. House Maxine Crawford Moses Anwar Taylor L. Shaw Gaines J. Sydney Cook, III Jerry R. Knight Joseph E. Faulk Elizabeth Parsons Gregory S. Graham J. Carlton Taylor B. Trey F. Green, III Rebecca A. Cook Kevin R. Kusta Randall K. Richardson Jessica F. Taylor Trina W. Hammonds Michael C. Cornwell Mary Ellen Lamar William Burl Key, III Anderson D. Robinson Will W. Lawrence Matthew P. Teague Ruth L. Pawlik Donnis Cowart David W. Langston Charles E. Robinson, Jr. William C. Teague James N. Montgomery, Jr. Annette B. Crain Robert E. Long, Jr. Jennifer A. Sellers R. Brian Tipton Lucas C. Montgomery Silas G. Cross, Jr. Barnes F. Lovelace, Jr. Randolph County Fred W. Teague Vicky U. Toles Michael Anthony O’Brien Kenneth D. Davis R. T. McWhorter, Jr. Melvin L. Bailey William J. Trussell Jacquelyn D. Tomlinson J. Bradley Ponder Randal K. Davis William L. Middleton, III Mary W. Craig Tommie Jean Wilson John E. Tomlinson Stacey D. Price Ron L. Davis Phil D. Mitchell, II Scott Hewitt Edwin Van Dall, Jr. Jennifer J. Tompkins Jeanne D. Rasco Nicole S. Diaz H. M. Nowlin, III Michael S. Jazwinski C. Clay Torbert, III William K. Rogers, Jr. Karen N. Dice Tina R. Ogle Kesa M. Johnston Jay S. Tuley Shelby County Erica L. Sheffield John E. Dill Gary A. Phillips S. Chad Lee Scarlette M. Tuley Joshua D. Arnold Barry D. Vaughn Cindy L. Dunn Joseph B. Powell Steven R. Morris Gina M. Tur South Alicia F. Bennett Davis A. Williamson Linda C. Dunn Joseph W. Propst, II J. Clay Tinney Wayne P. Turner Kimberly M. Brannon Chad E. Woodruff Nora E. Elder Christy W. Richardson Charles T. Turnipseed, Jr. Jeffrey M. Chapman Robin M. Elliott Julia S. Roth Fred W. Tyson Russell County Frank C. Ellis, Jr. Tallapoosa Ashley M. Emerson Nicholas B. Roth C. Gibson Vance Monchai Chuaychoo Russell L. England Marshall A. Entelisano Steven Sasser County Stewart E. Vance L. Joel Collins E. Dianne Gamble Isaac Espy Kenneth Schuppert, Jr. Faye H. Edmondson Robert J. Varley Jennifer B. Cooley Tracy L. Griffin Mary L. Falkner Timothy L. Shelton Randall S. Haynes Chenoa S. B. Vick America A. Cross Sanford D. Hatton, Jr. Katie Seals Ferguson William E. Shinn, Jr. Angela J. Hill J. E. Vickers, III Peter A. Dumbuya J. Frank Head John T. Fisher, Jr. Cynthia Slate-Cook Jason M. Jackson Royce G. Wadsworth Lindsay B. Erwin Jeffrey G. Hester Randal S. Ford Michael E. Sparkman John Oliver, II George H. Wakefield, Jr. James M. Ivins Jennifer R. James Gregory S. Frazier Robert Straub Robin F. Reynolds J. Dorman Walker, Jr. Allen C. Jones Sandy F. Johnson Chris L. Frederick R. Eric Summerford Mark Allen Treadwell, III W. Christopher Waller, Jr. John David Jones Jennifer L. Jones W. Ivey Gilmore, II Kevin D. Teague Kenneth E. Wright, Jr. James N. Walter, Jr. Thomas W. Lakes Rachel A. King Mark S. Gober J. Glynn Tubb Navan Ward, Jr. Sam E. Loftin, Jr. Erin L. Kline Elizabeth S. Gordon Brian M. White Tuscaloosa Robert C. Ward, Jr. Dana M. May Donald D. Knowlton, II Robbyn A. Gourdouze James D. Whitmire County Joseph W. Warren Don M. Riddick Meredith W. Markham Wilson F. Green Kenneth R. Widner Kyle D. Weidman Yvonne R. Rush Darrin R. Marlow Antonina M. Abate Junius F. Guin, III Ellen C. Wingenter Helen C. Wells Sirena L. Saunders Daniel E. Massey, IV James Abernathy, II Anne W. Guthrie Milton J. Westry Thomas F. Worthy W. Randy May Joseph R. Abrams Bert M. Guy

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Leif R. Hampton Ann L. Reardon Joshua B. Key Charles H. Booth, Jr. Lindsay B. Hamilton Freddy Rubio R. Bernard Harwood, Jr. Harry M. Renfroe, Jr. James C. King Lisa W. Borden Daniel E. Harell Alyson L. Saad J. Mitchell Hastings W. Bradford Roane, Jr. Horace H. Nation, III Bradford W. Botes Danita T. Haskins Micah E. Salsman J. Marland Hayes Jim H. Roberts, Jr. Philip Nelson Rebecca S. Bozeman Gregory H. Hawley Gary S. Schiff Josh P. Hayes P. Monica E. Rodgers Robert F. Richardson Jessica A. Brooks Hugh C. Henderson Romaine S. Scott, III Walt S. Hayes Barbara Rogers Tanisia N. Roye Audrey E. Brown Cameron L. Hogan Sara J. Senesac S. Scott Hickman Archer R. Rose, Jr. Brian S. Royster Whitney R. Brown Daisy M. Holder Carolyn R. Shields Chinita H. Hinton Gordon Rosen Jonathan C. Sapp Thomas W. H. Buck Timothy Holderfer Lauren H. Shine Chad L. Hobbs Jenny R. Ryan Donna W. Smalley Russell K. Burnette Brett H. Hollett J. Houston Smith, III Joseph N. Hocutt, II W. David Ryan, II Charles Tatum, Jr. Robin L. Burrell Francoise A. H. Horn James T. Smith E. Anne Sikes Hornsby Mark A. Scogin Steven A. Thomas Heather M. Bussey Kelvin W. Howard Thomas S. Smith Byron E. House David W. Scott Mark B. Turner Michelle N. Bulter David L. Hubbard J. Matt Stephens David A. Hughes Thomas W. Scroggins Gerald J. Vick, Jr. Julie K. Callaway Miles M. Huffstutler Patricia R. Stephens John D. Humber Laura K. Segers Brett L. Wadsworth Angela C. Cameron Yolanda L. Hunter Sandra H. Storm Thomas W. Ikard Patrick O. Sims Greg M. Williams Jennifer B. Caraway Janna L. Ifshin Garrick L. Stotser Kim D. Ingram James J. Sledge Robert Wilson, Jr. Richard P. Carmody Frank S. James, II Jason A. Stoves James J. Jenkins James C. Smith John T. (Jack) Carney, Jr. Carthenia W. Jefferson J. T. Stuckenschneider Albert Jones James D. Smith Washington Monica L. Carroll Brenda M. Johnson Christy M. Taul Christopher H. Jones Jeffery C. Smith County Margaret M. Casey Margaret R. Johnson Katherine L. Taylor T. Matthew Jones Kris D. Sodergren Rhonda R. Caviedes Jessica L. Jones Brian D. Turner, Jr. Harold L. Odom T. R. Tommy Jones, Jr. Robert M. Spence Pooja Chawla Marcus A. Jones, III Rachel E. VanNortwick William A. Odom William A. Jones LuAnn B. Springer John W. Clark, IV Pamela T. Jones Traci O. Vella A. Michael Onderdonk Hattie E. Kaufman Alyce Manley Spruell Holly J. Clemente Robert C. Keller Brian A. Wahl Stacey L. Thomas Kelly M. Kearney Shelly H. Standridge Brian M. Cloud Stewart A. Kelly Valeria Frye Walker E. Tatum Turner Hannah B. Lansdon Dennis Steverson Katherine A. Collier Rachel A. King Katrina Washington Halron W. Turner Othni J. Lathram Leon R. Storie Adam R. Colvin Kelly R. Knight Nathan C. Weinert Reginald O. Lavender Laura C. Strachan Wilcox County Gregory C. Cook Debra J. Krotzer Anita B. Westberry Shay V. Lawson B. Jay Stuck Benjamin H. Cooper Rachel D. LaFleur James C. Whitfield F. Les Lambert Hugh M. Lee E. Clark Summerford Kathryn S. Crawford Nicholas C. Laster Denise P. Wiginton Donald M. McLeod John J. Lloyd Allison S. Taylor Stephanie M. Crenshaw John R. Lavette Christopher J. Williams Brenda M. Pompey Julie L. Love Christopher Thigpen Wendy B. Crew Linda S. Lehe Jeffrey N. Windham William Pompey David P. Martin Katie B. Thompson C. Taylor Crockett Jon E. Lewis Lisa L. Woods Allen W. May, Jr. Matthew Q. Tompkins Jonathan S. Cross James F. Liddon, III Leslie A. Wright Emily K. McCarson Terri O. Tompkins Winston County Judson E. Crump Catherine C. Long L. Stephen Wright, Jr. Robert L. McCurley, Jr. Jessica V. Tubbs D. Russell Eason Brent W. Davis M. Todd Lowther Tiara S. Young Hudson Ashley L. McDavid Brian D. Turner Darlene U. Eason Shayana B. Davis Angela L. Luckett Ruth B. McFarland James D. Turner Betsy M. Harrison Shawanna R. Dobson Thomas J. Mahoney, Jr. Madison County Edwina E. Miller Mary A. Turner Cassandra T. Hearn Melissa L. Doggett Brooke G. Malcom Volunteer Steven W. Money Tyler D. Vann Jerry W. Jackson Gayle L. Douglas John R. Martin Lawyers Eugene T. Moore William W. Walker, Jr. Hobson Manasco, Jr. Minerva C. Dowben Pamela C. Massey Program Charles E. Morgan Raymond E. Ward Michelle D. W. Mauldin Christie L. Dowling John A. McBrayer Barry Abston Robert A. Morgan Paula W. Watkins B. Grant McNutt Jessica Kirk Drennan Charles A. McCallum, III Eric Adams Monica I. Moses R. Hays Webb Jeff A. Mobley Khristi Doss Driver Regina H. McDonald Joey Aiello C. Delaine Mountain Rachel L. Webber Scott A. Slatton C. Burton Dunn Robert G. Methvin, Jr. Daniel Aldridge Clinton D. Mountain, Jr. G. Stephen Wiggins Anne Lamkin Durward Jennifer M. Miller Amy Alexander Amanda D. Mulkey Raley L. Wiggins Birmingham Tiffany J. deGruy James R. Moncus, III Jennifer Allen George A. Nassaney, Jr. Justin Williams Volunteer John A. Earnhardt Laura E. Montgomery John Allen Christopher R. Neff Wayne L. Williams Lawyers Joel S. Erdberg Scott T. Morro Angela Ary Jason C. Neff Duane A. Wilson Program Mark D. Erdberg Anne R. Moses John Atkinson Thomas A. Nettles, IV Bryan Winter Michael D. Ermert David H. Murphree John M. Aaron William Avant Seth A. Newton Tom B. Woodard, IV Rebecca C. Eubanks Francis R. Nolan Kathy-Ann M. Alexis Chad Ayres Brooke M. NIxon Emily M. Yancey James E. Ferguson, III Hon. Julie A. Palmer R. David Allen, Jr. Douglass Bachuss Katherine B. Nolan Neal A. Yancey Linda A. M. Fiveash Beverly D. Paris Stephen S. Allums John Baggette J. C. Oldshue, Jr. W. M. Bains Fleming, III Candace B. Peeples Steven D. Altmann Robert Bailey Paige M. Oldshue Walker County Kira Y. Founteneau Jennifer C. Pendergraft Jeremy M. Applebaum Margaret Day Baker Diane S. Oraif Michael D. Freeman Kimberly M. Perkins James R. Beaird Adrienne Aldridge Bain Walter Baker John A. Owens Jessica M. Friedman Rachel H. Pinson James C. Brakefield LaVeeda Morgan Battle Caleb Ballew Edwin L. Parker Tenley E. Garvich Denise J. Pomeroy Herbie W. Brewer, Jr. Robert E. Battle Page Banks W. Cam Parsons Patricia A. Gill Maibeth J. Porter Robert Bryan Robin Beardsley Mark Travis Bartee Robin E. Pate James R. Gillis James A. Potts Tina Burgett Lois R. Beasley-Carlisle Tom Baxter Kathryn O. Pope Benjamin S. Goldman Honza J. F. Prchal Patricia L. Easley Heather M. Bellew Brent Beal Joe E. Powell Maura R. Goodwyn Robert D. Reese Richard E. Fikes Kathryn L. Bettis Rebekah Beal Laurie Pratt-Johns Mark E. Gualano Gregory J. Reid Patricia A. Frederick William G. Biddle Lula Bell Jennifer S. Precise John W. Haley Ferris S. Ritchey, III Patrick I. Gustin Tyria W. Biggers Vicki Bell David E. Rains Ginger W. Hamilton LaWanda D. Ross E. Nathan Harris Brandon L. Blankenship Betsy Berman

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Chad Black Rebekah Graham Ron Sykstus J. Daniel Barlar, Jr. David Block Katie Granlund Sarah Taggart Eaton G. Barnard James Brabston Kevin Gray We also thank the dedicated Amy Tanner David L. Barnett Norman Bradley Jonathan Grayson lawyers of Legal Services John Taylor Joe E. Basenberg Larry Brantley Leah Green Alabama. Their assistance and Shelly Thornton D. A. Bass-Frazier Charles Brasher Dihanne Guilbert Kenan Timberlake Joshua J. Bates Pamela Briggs James Gunther cooperation have enabled Carey Walker Matthew J. Bauer Allen Brinkley Ta’Kisha Guster these programs to operate June Wang John G. Baylor, Jr. Charles Brinkley S. Revelle Gwyn efficiently without a Frank Ward Stefany L. Bea Gant John Brinkley Jo Layne Hall Amy Wasyluka Robert A. Beckerle Heath Brooks Stephen Hall duplication of services. Tim Wasyluka Paul T. Beckmann Taylor Brooks Kenneth Hampton Andrew Watson Billy C. Bedsole Nancy Brower William Hancock C. Rena Webb Kim L. Bell Kimberly Brown Joan Harris Melani LaMar Clark Pendergrass Josh White John T. Bender Robert Buck James Harrison Patrick LaMar Jennifer Penfield Bree Wilbourn Thomas H. Benton, Jr. John Burbach Matthew Harrison Joe Lampley Randall Perry Gayle Williams Russell E. Bergstrom Graham Burgess David Hatfield Lee Leggett Troy Blakney Pierce Stephen Williams Jaime W. Betbeze Justin Burney Thomas Hayes Brenda Lewis Jonathan Pippin Thomas Williams Britt V. Bethea Clint Butler Kevin Heard Teresa Lewis Charles Pitman Tyler Williams Windy Cockrell Bitzer David Canupp Mary Ena Heath Morris Lilienthal Valerie Plante John Wilmer Darryl T. Blackmon Clement Cartron Nicholas Heatherly Benjamin Little Rhonda Plumlee Daniel Wilson Wesley H. Blacksher Patrick Caver Gabrielle Helix Chris Lockwood David Points Stephen Wilson William Blanton Allison Chandler Tara Helms Robert Lockwood Richard Raleigh Mike Wisner Edward C. Blount, Jr. Richard Chesnut Danny Henderson Wendy Lopez Sreekanth Ravi Wayne Wolfe Christina M. Bolin Amanda Chrisley James Hess William Lunsford Robert Rawlinson Tonya Woods Thomas R. Boller Donald Christian William Hewlett William Marshall Angela Rawls Christopher Wooten R. Preston Bolt, Jr. Brian Clark Jerry Hicks Larry Marsili Charles Ray David Worley Ashley B. Bonner Joseph Cloud Laura Hiller Clay Martin Holly Ray-Kirby Milton Yarbrough C. Britton Bonner Linda Coats Jeremiah Hodges Kimberly Martin Matthew Reeves Lisa Young William E. Bonner Casey Cogburn Tandice Hogan Mac Martinson Brian Richardson Emily Zickefoose Kate Bonnici Corrie Collins Angela Holt Doug Martinson, II Michael Robertson Kathleen Zimmerman John Wayne Boone Chris Comer David Holt Abbey Mason Breck Robinson Knox Boteler Rochelle Conley Charles Hooper Ben McArthur Robert Rodgers Mobile Bar Jason C. Botop Susan Conlon Larry House Tammy McCabe Dag Rowe Association Edward G. Bowron Joseph Conwell Mitchell Howie Robert McCaleb Dag Rowe, Jr. Volunteer Marc E. Bradley Maureen Cooper Marc Huff Latasha McCrary Aaron Ryan Lawyers Kasie M. Braswell Amy Creech Mike Huff David McCurry L. Thomas Ryan Program Gregory B. Breedlove Russell Crumbley Sandra Hughes Tina McDonald Bradley Ryder Henry H. Brewster Carvine L. Adams Elizabeth Cvetetic Claude Hundley, III Timothy McFalls Teresa Ryder Donald M. Briskman Christina N. Adcock Andrew Dalins Nakia Hundley David McGehee Juanita Sales Lee S. Joshua Briskman Geoffrey D. Alexander Anita Damian Ida Tyree Hyche Jeff McKinney Dorothy Schmidt Britten Britt R. Alan Alexander Larry Daniel Kourtney Ikard Rebekah McKinney Sandy Segal W. Benjamin Broadwater Helen J. Alford Adam Dauro Jeff Irby Reta McKannan Leslie Sharpe Carin D. Brock Tonny H. Algood Kathryn Davis Mari Irwin Tommy McMurtrie Kristy Shelton G. Porter Brock, Jr. Gary P. Alidor Joan Marie Dean Travis Jackson Anna Meegan Tazewell Shepard James D. Brooks Debra E. Almeida Sydney Dean Laura Jacobs Chris Messervy Andrew Sieja Megan Brooks Joseph Altadonna Mark Debro Amber James Barbara Miller Derek Simpson David P. Broome J. Hodge Alves, III Patricia Demos Joel Jaqubino Christy Miller Kay Siniard Chad R. Brown Donna S. Ames Christina Dixon Ben Jarrell George Miller Tommy Siniard Douglas L. Brown Ferrell S. Anders Suzanne Dorsett Corey Jenkins Patrick Miller Amy Slayden Joseph Allan Brown Douglas L. Anderson Sharon Doviet Carolyn Johnson Brian Monroe Thomas Sloan Paul D. Brown Amy B. Andrews Bennett Driggers Deirdre Johnson Bert Moore Chris Smith Toby D. Brown Tristan R. Armer Matthew Dukes Michael Johnson Elizabeth Moore Deanna Smith John P. Browning Gordon G. Armstrong, III Rachel Eidson Sharon Johnston Harold Mooty George Smith Gregory P. Bru Katherine B. Arnold Jay Emerson Emily Jones Chad Morgan Jeremy Smith Melvin W. Brunson G. Wayne Ashbee Melissa Endsley Alan Judge Kevin Morris Ron Smith Donald E. Brutkiewicz, Jr. Kristin T. Ashworth Scott Faulkner Daniel Kaufmann Richard Morris Ronald Smith John C. Brutkiewicz Grover Ernst Asmus, II Earl Forbes Kimberly Kelley Amy Nation Justin South Neal A. Buchman Daryl A. Atchison Brannon Ford Walter Kelley Lauren Nowak Richard Sparkman Gregory C. Buffalow James E. Atchison Kimberly Ford Laurie Kellogg Tina Ogle Marcia St. Louis Russell C. Buffkin Bruce L. Aune Christine Frieder Josh Kelly Christopher Pankey Ty Stafford Lisa Bumpers Brigg H. Austin Robert Gammons Kathy Kelly Sandra Parker Eliza Stefaniw Peter F. Burns Joseph P. H. Babington Mickey Gentle Paul Killian Dustin Paseur Harold Stephens Nancy J. Busey Mary M. Bailey Dale Gipson Joe King Donna Pate Jamie Stephens Frederick Bussey Melvin Lamar Bailey Connie Glass Chris Kuffner R. Lynn Pearson Mark Swanson Carl N. Butler, Jr. Michael E. Ballard

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M. Warren Butler M. Stephen Dampier Jennifer Holifield Fred W. Killion, Jr. Ella Byrd Jason B. Darley John Holladay James W. Killion Jennifer C. Byrd Glenn L. Davidson Justice for all is more than just Lyman F. Holland, Jr. Sujin Kim Henry H. Caddell Michael M. Davis a cliché. It is a time-honored Frances H. Hollinger Hardie B. Kimbrough David S. Cain, Jr. Norman H. Davis, Jr. ideal to which all lawyers and Ryan P. Holloway James E. Kimbrough, Jr. Henry A. Callaway, III Ronald P. Davis W. Steele Holman, II William A. Kimbrough, Jr. Ashley E. Cameron Brent T. Day all Americans aspire. By Broox G. Holmes Rick O. Kingrea Craig Campbell John M. Deakle volunteering your time and Richard H. Holston Richard M. Kirkpatrick Robert C. Campbell, III Edward A. Dean skill to provide legal services to D. Charles Holtz Stephen L. Klimjack Kenneth Paul Carbo, Jr. T. Jefferson Deen, III Richard D. Horne Michael D. Knight Jerome C. Carter Mignon M. DeLashmet those who cannot normally David A. Horton Dennis J. Knizley J. Gregory Carwie Margaret F. Demeranville obtain them, you are making a J. Gordon House, Jr. H. James Koch William J. Casey Daniel A. Dennis, IV significant contribution toward Heather M. Houston Frank H. Kruse K. W. Michael Chambers Joseph S. Dennis making that ideal a reality. D. Kirby Howard, Jr. Joseph O. Kulakowski Jeanna M. Chappell Robert P. Denniston Stewart L. Howard Banks C. Ladd William G. Chason Scott E. Denson Victor T. Hudson, II Leah P. Ladd Walter G. Chavers James E. Deshler, II Michael G. Huey Mary Carol Ladd C. S. Chiepalich Ross M. Diamond, III Andrew Freeman Robert L. Hagler, Jr. David Michael Huggins S. Gaillard Ladd Nicholas Cillo Annie J. Dike Carl E. Freman Jason K. Hagmaier W. Gregory Hughes Gilbert B. Laden Jennifer P. Clark Charles H. Dodson, Jr. Donald A. Friedlander Carter R. Hale Brandon D. Hughey Paul V. Lagarde Andrew C. Clausen Carolyn M. Dohn Gregory M. Friedlander Lee L. Hale, Sr. Christopher G. Hume, III R. Edwin Lamberth J. Calvin Clay John W. Donald, Jr. Jonathan B. Friedlander Matthew B. Hall Thomas Humphries James W. Lampkin, II Lisa Clayton William A. Donaldson Nathan Friedlander Patricia W. Hall John Michael Hunter William R. Lancaster William Clifford, III Sarah B. Dorger Barry A. Friedman Theodore L. Hall Scott W. Hunter Johnny Lane James Paul Clinton Mark A. Dowdy Josh D. Friedman W. Perry Hall Wesley J. Hunter Clay Lanham Robert E. Clute, Jr. Thomas P. Doyle Sarah S. Frierson Lawrence J. Hallett, Jr. Willie J. Huntley, Jr. Alex F. Lankford, III Harwell E. Coale, Jr. William M. Doyle Richard W. Fuquay Brandy B. Hambright Harvey A. Hutchinson, III Alex F. Lankford, IV Wanda J. Cochran Albert O. Drey Richard M. Gaal David A. Hamby, Jr. Herndon Inge, III Oliver J. Latour, Jr. James P. Coleman B. Vaughan Drinkard, Jr. Ginger P. Gaddy Jubal Hamil Brandon D. Jackson Forrest S. Latta F. Luke Coley, Jr. J. Michael Druhan, Jr. P. Vincent Gaddy William Craig Hamilton J. Walton Jackson John L. Lawler Danny J. Collier, Jr. John S. Dugan Thomas O. Gaillard, III Mary A. Hampton Matthew R. Jackson John N. Leach, Jr. Allison L. Collins Bryan G. Duhe’ Jeffry N. Gale Neil L. Hanley Robert G. Jackson, Jr. Goodman G. Ledyard Celia J. Collins Cullan B. Duke Norman J. Gale, Jr. Daniel A. Hannan Sidney W. Jackson, III Beth Lee Stephen M. Collins, Jr. John T. Dukes Robert M. Galloway Michael J. Harbin William B. Jackson, II John V. Lee Gregory S. Combs Barre C. Dumas William J. Gamble, Jr. Cynthia C. Harper Alicia M. Jacob Tracie Lee-Roberson Bryan Comer J. Brian Duncan, Jr. Jonathan P. Gardberg Tameka A. Harpole Ishmael Jaffree J. Stephen Legg L. Hunter Compton, Jr. Douglas K. Dunning J. Cecil Gardner James K. Harred Julia C. James Francis E. Leon, Jr. David S. Conrad Robert S. Edington J. Marshall Gardner Sidney M. Harrell, Jr. Jack F. Janecky Mark A. Lequire Christopher T. Conte Grady R. Edmondson Thomas F. Garth Ashley S. Harris James D. Jeffries, Jr. Melissa D. Lerch Walter M. Cook, Jr. Laura C. Edwards George C. Gaston Deward J. Harrison Linda Collins Jensen Geraldine S. Lester Angelique M. Cooper Mark P. Eiland Ian F. Gaston Thomas E. Harrison Candace D. Johnson Michael M. Linder, Jr. Lisa Darnley Cooper William Thomas Eiland Christopher L. George Michael A. Hart James A. Johnson Melissa Lindquist-King Richard E. Corrigan Gregory A. Eldridge Jordan W. Gerheim Jeffrey J. Hartley Richard B. Johnson Charles Long Keri R. Coumanis Page S. Ellis Jason C. Gerth J. Stephen Harvey William D. Johnson, Jr. Thomas Loper Braxton C. Counts, III C. Mark Erwin John D. Gibbons Katie H. Hassell James C. Johnston James Loris, Jr. J. P. Courtney, III Tamela E. Esham Christopher M. Gill Peter Havas Neil C. Johnston Victor H. Lott, Jr. Andrew J. Crane Michael T. Estep W. Michael Gillion Scott R. Hawk Vivian G. Johnston, III Y. D. Lott, Jr. J. Randall Crane Christopher B. Estes Walter T. Gilmer, Jr. Edward G. Hawkins Vivian G. Johnston, V Darlett Lucy-Dawson Robert J. Crane Cheryl D. Eubanks Wyman O. Gilmore, Jr. Wilson M. Hawkins, Jr. Vivian G. Johnston, Jr. Merceria L. Ludgood Stephen G. Crawford J. Gregory Evans William B. Givhan Jeffry Alan Head Andrew M. Jones T. Ryan Luna Carrie V. Cromey Jim H. Fernandez Melody C. Glenn Robert J. Hedge Gregory R. Jones Jeffrey L. Luther Jason Cromey Jonathan G. Festa J. W. Goodloe, Jr. Benjamin Connel Heinz Joe Carl Jordan Maria Lynda Lyles Eric Cromwell Gary W. Fillingim Allen E. Graham Timothy A. Heisterhagen Shirley M. Justice William M. Lyon, Jr. Benjamin E. Crooker Douglas W. Fink Duane A. Graham Frederick G. Helmsing, Jr. Cecily L. Kaffer Andrea C. Lyons John T. Crowder George W. Finkbohner, III Missty C. Gray Deborah B. Hembree Kathleen Cobb Kaufman Jonathan B. Mabire Aurelius Evans Crowe Karlos Finley Lori Grayson Alison B. Herlihy G. Marc Keahey Peter S. Mackey Rudene B. Crowe Patrick Finnegan William C. Grayson Warren C. Herlong, Jr. Robert D. Keahey, Jr. Arthur J. Madden, III John J. Crowley, Jr. P. Gray Finney, III Jon A. Green Christine C. Hernandez Robert D. Keahey Melinda Lee Maddox Judson E. Crump Charles J. Fleming J. David Greene Leslie Herring Ronnie E. Keahey Todd C. Mallette Blane H. Crutchfield Erin Fleming Theodore L. Greenspan Brenda D. Hetrick Kyla Kelim David Maloney Manley L. Cummins, III Timothy W. Fleming Irvin Grodsky R. Scott Hetrick Colin E. Kemmerly Jonathan R. Maples William M. Cunningham, Jr. Ben Ford Timothy M. Grogan Charles A. Hicks David G. Kennedy E. Russell March, III James G. Curenton, Jr. Marcus T. Foxx John Grow Larry H. Hipsh Christopher Kern Chad C. Marchand Edwin J. Curran, Jr. Keith B. Franklin Roger C. Guilian Lucian B. Hodges Benjamin H. Kilborn, Jr. Beth Marietta-Lyons Dan S. Cushing Ross Frazer Virginia W. Haas Michael R. Holberg Fred W. Killion, III Michael E. Mark

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L. A. Marsal Pamela A. Moore Bryan D. Smith William C. Tidwell, III Linda J. Marston-Crawford Stephen C. Moore E. Glenn Smith, Jr. Desmond V. Tobias Andrew W. Martin, Jr. Larry C. Moorer This honor roll reflects our Edward L. D. Smith Desmond B. Toler Craig D. Martin Jack W. Morgan efforts to gather the names of Fran Jones Smith Michael J. Tonder Steven A. Martino Jennifer S. Morgan those who participate in Frankie Fields Smith David C. Tufts Phillip E. Mason Nicholas F. Morisani Jason D. Smith Lucy E. Tufts R. Edward Massey, Jr. Jake L. Morrison organized pro bono programs. Lacey Smith E. Tatum Turner R. Edward Massey, III Henry T. Morrissette If we have omitted the name of Selma D. L. Smith Halron Turner Kevin F. Masterson W. Alexander Moseley any attorney who participates Susan Gunnells Smith J. Robert Turnipseed Joseph M. Matranga T. Julian Motes William B. Smith Deena R. Tyler Robert C. Matthews Robert H. Mudd, Jr. in such a program, please send Hendrik Snow John M. Tyson, Sr. Thomas R. McAlpine D. Brian Murphy that information to Alabama Mary Elizabeth Snow Michael Upchurch Gregory B. McAtee Michael T. Murphy State Bar Volunteer Lawyers Domingo Soto Hamp Uzzelle Brian P. McCarthy Jennifer Murray Program. P. O. Box 671, Scott W. Soutullo Pete J. Vallas Daniel L. McCleave Paul Bradley Murray Mark E. Spear James VanCleave Samuel P. McClurkin, IV P. Russell Myles Montgomery, AL 36101. Jon M. Spechalske Gregory Vaughan Jacqueline M. McConaha Paul D. Myrick Jerome E. Speegle David P. Vaughn Lynn McConnell Meegan Nelson John Ronald Spencer Lawrence B. Voit Jason S. McCormick Narissa Nelson Tara Sprague James B. Vollmer J. Charles McCorquodale, IV Mark A. Newell Brenda J. Pierce Mark B. Roberts D. Trice Stabler Richard W. Vollmer, III Joseph C. McCorquodale, III Blair Newman, Jr. Jeffrey G. Pierce Edward Luckett Robinson, II Leon F. Stamp, Jr. George M. Walker Douglas L. McCoy James B. Newman Wendy A. Pierce Jay N. Robinson Joseph D. Steadman Kimberly C. Walker Marcus E. McCrory Frances R. Niccolai Melissa G. Pigg Thomas M. Rockwell Jason K. Steele Thomas B. Walsh Kristine McCulloch Steven L. Nicholas Virginia Pike William C. Roedder, Jr. Mary Steele Patrick J. Ward Shannon R. McClure Michael C. Niemeyer Mary E. Pilcher Jannea S. Rogers Kenneth S. Steely Ernest Eugene Warhurst, Jr. James H. McDonald, Jr. David A. Nihart J. Jerry Pilgrim Ruth M. Rogers Gregory B. Stein Harold William Wasden Jennifer E. McDonald Peggy R. Nikolakis J. Casey Pipes Derek S. C. Rose T. Jeff Stein LeBreon S. Washington Matthew C. McDonald Jason B. Nimmer S. Wesley Pipes, V Jennifer Roselius Scott D. Stevens William W. Watts, III Edward B. McDonough, Jr. John R. Nix Wesley Pipes Ian Rosenthal Donald J. Stewart Zachary Weaver Marcus E. McDowell Faith A. Nixon William E. Pipkin, Jr. Jay M. Ross Louisa L. Stockman Leslie G. Weeks Michael H. McDuffie Ken A. Nixon Patricia J. Ponder James B. Rossler Norman M. Stockman Lawrence M Wettermark Stova F. McFadden Ryan T. Northrup William C. Poole Beth M. Rouse Samuel L. Stockman A. Holmes Whiddon, Jr. William S. McFadden Thomas Michael O’Hara Charles J. Potts Robert H. Rouse Dragan Stojanovic Allison E. White Robert B. McGinley, Jr. Caine O’Rear, III Susan L. Potts Edward P. Rowan William D. Stokes Jarrod J. White W. Chris McGough Harold L. Odom Arthur T. Powell, III Benjamen T. Rowe Bruce B. Stone, Sr. John L. White Deborah D. McGowin William A. Odom Jacqueline R. Powell Andrew J. Rutens Margaret A. Stone J. George Whitfield, Jr. William T. McGowin, IV Sonya Ogletree Lakelia P. Powell Sarah Rutledge Sheila V. Stone David J. Wible Sherrie V. McKenzie Thomas P. Ollinger, Jr. Glen P. Powers, II Elias J. Saad Michael D. Strasavich C. Richard Wilkins Robert B. McLaughlin Mary Elizabeth Olsen Jean M. Powers William H. Saliba David A. Strassburg, Jr. Anna M. Williams Michael S. McNair A. Michael Onderdonk Barry C. Prine Harry V. Satterwhite Brandon Strickland Arthur G. Williams, IV Jacob B. McNiel James H. Oppenheimer Caroline T. Pryor Steven P. Savarese, Jr. Todd S. Strohmeyer Lee B. Williams Kent Dyer McPhail Juan Ortega Brian T. Pugh Richard S. Sawyer Carroll H. Sullivan Margaret Y. Williams Coleman F. Meador Guy C. Oswalt, III Marion A. Quina, Jr. Troy T. Schwant Joseph R. Sullivan Nichelle Williams Augustine Meaher, III Brian R. Overstreet David R. Quittmeyer Steven Sciple Molly M. Sullivan Richard R. Williams Thomas J. Mercado Terrie Owens Thomas J. Radcliff Anna L. Scully Charles E. Tait Ronnie L. Williams Bill C. Messick Peter J. Palughi, Jr. L. Bratton Rainey, III Matthew T. Scully James W. Tarlton, III Adam T. Williamson S. C. Middlebrooks Frank L. Parker, Jr. Robert S. Ramsey James D. Sears Chad Tatum Theresa N. Williamson Adam M. Milam Jason C. Parker A. Clay Rankin, III Henry R. Seawell, IV Jeremy P. Taylor Charles S. Willoughby Christopher R. Miller John R. Parker David L. Ratcliffe John W. Sharbrough, III Richard H. Taylor J. Elizabeth Wilson Edward A. Miller Harold D. Parkman James Rebarchak Thomas E. Sharp, III Shane A. Taylor Michael P. Windom Jason D. Miller Melinda J. Parks F. Grey Redditt, Jr. Clifford C. Sharpe Stacie F. Taylor Michael A. Wing Jeffrey G. Miller James Donnie Patterson Mark L. Redditt Kirk C. Shaw R. Stevens Terry Mark C. Wolfe Lynn C. Miller James T. Patterson William H. Reece Jason M. Shelby Steven L. Terry Thomas M. Wood M. Kathleen Miller J. Day Peake, III Gabrielle Reeves Michael D. Sherman Bryan A. Thames Ricardo Woods Margaret Miller Charlie R. Pearman W. Boyd Reeves Richard E. Shields Joseph D. Thetford Shuntavia Woods Ronald B. Miller Sonya Pence Elizabeth D. Rehm Jonathan E. Sholtis Renee E. Thiry James A. Yance Brooks P. Milling Patrick K. Pendleton Kirkland E. Reid Vanessa Arnold Shoots Richard L. Thiry Randolph T. Yance Pamela K. Millsaps R. Jeffrey Perloff Eric B. Reuss Lewis R. Shreve Carla M. Thomas Habib Yazdi L. Daniel Mims Dorothy Perry John D. Rhames William E. Shreve, Jr. Robert A. Thomas Richard D. Yelverton Jonathan Minchin R. John Perry Latisha Rhodes Franklin L. Shuford, Jr. Stacey L. Thomas Jay A. York Joseph J. Minus, Jr. Christopher E. Peters Robert Riccio Patrick H. Sims Barry L. Thompson James William Zeigler Robert L. Mitchell Larkin H. Peters Mathew B. Richardson William H. Sisson Linton B. Thompson Thomas T. Zieman, Jr. Michael A. Montgomery Abram L. Philips, Jr. Kenneth J. Riemer Pennelope Slawkowski Ray M. Thompson David B. Zimmerman William D. Montgomery Matthew T. Phillips J. Burruss Riis Jack Smalley, III Cooper C. Thurber Alex W. Zoghby J. Richard Moore Will G. Phillips James V. Roberts, Jr. April D. Smith Edward R. Tibbetts George M. Zoghby | AL

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OPINIONS OF THE GENERAL COUNSEL

J. Anthony McLain

Representation of multiple plaintiffs against the same defendant—is it ethically permissible?

QUESTION: than market rates while the same “This letter constitutes a request for defendants charge the owners of inde- an expedited opinion with respect to pendent pharmacies artificially and the question of whether or not I and agreed upon high rates. other lawyers have a conflict of inter- “Other lawyers and I have also est arising out of our participation in recently filed a petition to intervene and two separate lawsuits. In the Circuit a complaint in intervention in Smith v. Court of Any County, Alabama, in a Acme Laboratories, et al., civil action case styled Doe v. Roe, et al., civil number CV-3434 pending in the Circuit action number CV-1212, we represent Court of Some County, Alabama. a class of pharmacy owners in a law- In the Smith case a class of indirect suit filed pursuant to Alabama’s purchasers or consumers has been antitrust statute, §6-5-60 Alabama certified as a class composed of Code 1975, against numerous phar- Alabama residents as well as residents maceutical manufacturers. In Doe we of the District of Columbia and the allege that the pharmaceutical manu- States of Kansas, Maine, Michigan, facturers have conspired in a price dis- Minnesota, Mississippi, New Mexico crimination scheme to charge favored and Wisconsin. In Doe no class certifi- purchasers of pharmaceuticals lower cation has yet been entered.

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“In the Smith case the lawyers for the original plaintiff and a ruling as we possibly can get from your office as to plaintiff class oppose our intervention on the grounds that whether or not any conflict exists.” we have a conflict of interest. We believe that no conflict * * * exists for the following reasons: 1. The defendants are the ANSWER: largest pharmaceutical manufacturers in the world. Between You do not presently have a conflict of interest under the cir- them they have more assets and a greater wealth than most cumstances described in your letter. of the countries of Europe combined. This is not a situation where there is a limited fund for recovery. The two classes DISCUSSION: may be competing for the same funds but the funds are This situation is covered by Rule 1.7{b), which states: unlimited. As you can see from the attached complaint and “Rule 1.7 Conflict of Interest: General Rule motion for class certification and order in the Smith case, * * * individual claims of $50,000 or more are excluded by defini- (b) A lawyer shall not represent a client if the represen- tion from the class. There is simply no possibility that these tation of that client may be materially limited by the two classes, that is the class in Doe and Smith, will ever be lawyer’s responsibilities to another client or to a third competing for a limited pool of money. 2. Under Alabama’s person, or by the lawyer’s own interests, unless: (1) The antitrust statutory scheme the damages sought in both lawyer reasonably believes the representation will not be cases are statutory and therefore are defined or fixed by adversely affected; and (2) The client consents after statute. It is not a situation where unlimited damages would consultation. When representation of multiple clients in be sought by competing classes. 3. The wrongful conduct a single matter is undertaken, the consultation shall complained of in both actions is the concerted effort by the include explanation of the implications of the common defendants to fix the prices of drugs charged to retail phar- representation and the advantages and risks involved.” macies and to the customers of those pharmacies. There is no allegation in either case that the retail pharmacies have Ordinarily a lawyer may not represent two plaintiffs in sepa- violated Alabama law. The wrongful conduct complained of in rate actions against the same defendant if the lawyer knows both cases is that of the defendants. This wrongful conduct or has reason to believe there will be insufficient insurance has affected both classes of plaintiffs. The fact that the phar- or assets to satisfy both potential claims. However, if both macies may in some instances have passed on the artificially plaintiffs consent to the representation after full disclosure inflated prices to the indirect purchasers or the consumers then the conflict is obviated. is not a violation of Alabama law and is not the subject of In the circumstances you have described, there do not either complaint. With respect to the liability of the defen- appear to be any issue conflicts between the two plaintiff class- dants, then, the necessary proof is identical in these cases. es you seek to represent. In Doe, you represent Alabama phar- Accordingly we could have no conflict if that is the complaint macy owners and in Smith, you will be representing consumers of the plaintiffs’ lawyers in Smith. who have purchased drugs in the past. Both groups contend “Any claim by the plaintiffs’ lawyers in the Smith case that that the defendant took illegal steps and measures to inflate we have a conflict of interest due to our representation of the prices of their products to those in the distribution and end- the plaintiffs’ class in Doe could only be raised after there user positions. As for whether both plaintiff classes will be com- had been a certification of the plaintiffs’ class in Doe. No cer- peting for the same assets to satisfy their claims, there is no tification has been made by Judge Goodnite. Even if we indication, at this point, that the defendants’ resources are so admitted the possibility of such a conflict, it could not con- limited as to generate that type of conflict for you. If future dis- ceivably arise until there was a certification in Doe. * * * covery reveals that situation, then the conflict issue would have We do not believe that we have a conflict of interest between to be addressed again. Rule 1.7(b), of course, gives you the these two plaintiff classes. Judge Jones, the judge in the option of seeking consent from your class clients. In that case Smith case, will be deciding sometime in the near future the risk of any adverse effect created by the multiple represen- whether we have a conflict or not. We would like as prompt tations is eliminated. [RO-1996-03] | AL

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LEGISLATIVE WRAP-UP

Goodbye and Hello After serving as director of the Alabama Law Institute for the past 37 years, I retired December 31, but will continue to assist the Constitutional Revision Commission during their four-year, article-by-article study of the 1901 Constitution. Othni Lathram was selected as the new director and began earlier this month. Elected were the following officers and members of the Executive Committee:

Officers Peck Fox President: Senator Cam Ward Representative Demetrius C. Newton Vice President: Representative Marcel Senator Arthur Orr Black Representative Bill Poole Senator Rodger Smitherman Robert L. McCurley, Jr. Executive Committee LaVeeda Battle Emeritus Members David Boyd Senator Roger Bedford Senator Ben Brooks Fred Gray James M. Campbell Oakley W. Melton, Jr. William N. Clark Yetta Samford Representative Paul DeMarco

Constitutional Revision In 1974, when I was being recruited to be director of the Alabama Law Institute, I was told that the two biggest items the Institute would be working on were the newly-drafted revision of the 1901 Alabama Constitution and a new criminal code for Alabama. Thirty-seven years later, we are working on a new revision to the 1901 Constitution and a review of the now 32-year old Criminal Code. Alabama has had six constitutions: 1819–statehood; 1861–succession; 1865– reorganization after the Civil War; 1868–reconstruction or radical constitution; 1875–conservatives abandoned the objectives of the radical constitution; and the current 1901 Constitution. Othni J. Lathram For more than 40 years, constitutional reform as been a “hot” item. In the 2011 regular session, the legislature again made it a priority item. For more information about the Senate Pro Tem Del Marsh introduced and passed a Senate Joint Resolution (SJR- Institute, visit www.ali.state.al.us. 82) calling for a commission to revise the constitution article by article. The resolution also requested the Alabama Law Institute to staff the commission and prepare proposed revisions. In 1969, with Albert Brewer as governor, the “Alabama Constitutional Commission” was created by Act No. 753 of the legislature. This commission was continued by Act No. 95 in 1971. Conrad Fowler, then probate judge of Shelby County, chaired the committee. Dean Leigh Harrison, with the University of Alabama School of Law, was the research director. This commission produced a proposed seventh constitution for the State of Alabama, dated May 1, 1973. The recommendations that were made and adopted were:

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1. Annual sessions of the legislature beginning in 1976 by the courts, those antiquated and those unnecessary duplica-

2. Article VI, The Judicial Article adopted in 1973 tions of other provisions, as well as how to revise the constitution. In response, the Alabama Law Institute submitted a report 3. Classification of cities into eight classes, eliminating general in January 2002 to the Alabama House of Representatives that laws of local application in 1979 outlines the four approaches to a revision of the constitution: 4. Code of Ethics in 1973 1. Article-by-article approach; 5. Article VIII–Suffrage and Elections in 1992 2. Re-codification, as an intermediate step; In 1978, Governor Fob James campaigned on the need for 3. Comprehensive revision by the legislature after first a new constitution. Senator Ryan DeGraffenried spent over approving a constitutional amendment overturning State half of the 1983 legislative session at the microphone review- v. Manley; and ing the constitution. It passed both houses and was submitted to the electorate for vote on November 8, 1983. This revision 4. Constitutional Convention never reached the voters when the Alabama Supreme Court The institute followed up their report in April 2002 with a case of State of Alabama and Don Siegelman v. Richard S. proposed recompilation of the Alabama Constitution of 1901 Manley, 441 So.2d 864 (Ala. 1983) removed the constitution in which all amendments were incorporated into the main body from the ballot, holding the proposed constitution violated of the constitution. In response, in 2003, the legislature Section 284 of the constitution by proposing an entirely new passed Ala. Code § 29-7-11 which directed the Code commis- constitution rather than an amendment to it. sioner (director of Legislative Reference Service) to prepare an In 2001, the legislature asked the institute to analyze the official recompilation of the constitution. This now appears in 703 amendments to the constitution and identify those voided the 2005 replacement volume of the Code of Alabama.

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LEGISLATIVE WRAP-UP Continued from page 23

In response to the institute’s report, various plans of con- Year 2011 stitution reform were initialed. The house of representatives’ Article XII Private Corporations plan was to adopt a new constitution, “article by article.” The Article XIII Banking senate plan was to revise the entire constitution after first Passed 2011 Session: Remove unconstitutional racist lan- passing a constitutional amendment allowing the adoption of guage throughout a comprehensive constitution. The governor’s plan was to call a constitutional convention. The secretary of state had a Year 2012 plan which created a constitutional revision commission. Article III Distribution of Powers Cumberland School of Law, Auburn University and other col- Article IV Legislative Department leges and universities had projects and studies. Private Article IX Representation groups, such as the Alabama Citizens for Constitutional Year 2013 Reform and the Alabama Appleseed Foundation, held forums and rallies in supported of a new constitution. Article 1 Declaration of Rights Governor Riley used his first executive order after taking Article V Executive Department office January 20, 2003 to form the “Alabama Citizens’ Article XIV Education Constitution Commission.” This commission was to address Year 2014 five issues: Article VII Impeachments (1) Home rule; Article X Exemptions Article XVII Miscellaneous (2) Voter approval of local taxes; Taxation has been specifically excluded. (3) Strengthening governor’s veto powers;

(4) Addressing tax structure; and Commission members were appointed by Governor Bentley, Senate Pro Tem Marsh and Speaker Hubbard with (5) Requiring the governor and lt. governor to run as a team. the chairs of the House and Senate Judiciaries and The one success was limited home rule, known as “The Constitution committees as ex officio members. Alabama Limited Self-Governance Act,” Ala. Code § 11-3A-1. Members of the commission include: Every year since 2003, bills have been introduced for a Governor Robert Bentley John Anzalone Constitutional Convention. Revisions of two articles of the Governor Albert Brewer Greg Butrus constitution have been introduced and have passed one Becky Gerritson President Pro-Tem Del Marsh house of the legislature. Vicki Drummond Carolyn McKinstry The 2011 Senate Joint Resolution delineates the following Speaker Mike Hubbard Matt Lembke article-by-article plan: Representative Patricia Todd Jim Pratt

MEDIATION SERVICES Appellate – General Civil Domestic Relations Domestic & Family Violence

Larry E. Darby Alabama Mediation Center 29 Carol Villa Drive Montgomery, Alabama 36109 Tel. 334-356-3593

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Ex-officio members: chairs of house and senate Judiciaries Governor James’s legal advisor. Since 1983, Professor and Constitution and Election committees: Representatives Walthall has been a part of every constitution effort. Randy Davis and Paul DeMarco, Senators Bryan Taylor and The commission held meetings last year in August, Ben Brooks September, October (twice), November, and December. Governor Albert Brewer was chosen chair of the commit- Article XII “Private Corporations” and Article XIII “ Banks and tee, with Representative Paul DeMarco as vice chair. Banking,” which were scheduled for review in 2011, have The commission’s duties and responsibilities are: been reviewed and approved by the commission and should • Create a public awareness of and educate the public on be introduced in the 2012 Session that will begin next month. the recommended changes; For future meeting days of the commission and its agenda, go to www.open.alabama.ma.gov. • Provide the legislature with recommendations for changes Thank you to the hundreds of great Alabama lawyers who to the articles under consideration; and have given thousands of hours and millions of dollars of their • Report its recommendations in each house of the legisla- billable time over the past 37 years to make Alabama’s laws ture by the third legislative day each year. among the most up to date in America. It has been a joy The Law Institute is staffing the commission with Bob working with you. McCurley, Professor Howard Walthall of Cumberland Law I could never have anticipated that in 1974, when I accept- School and Mike Waters, of Jones Walker. Waters has been ed this job for a year, it would last for 37. I look forward to involved with constitutional revision since 1978 when he was continuing to be a part of the Alabama bar. | AL

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DISCIPLINARY NOTICES

Notice

Reinstatement

Transfer to Disability Inactive Status

Suspensions Notice • Daryl Patrick Harris, whose whereabouts are unknown, must answer Public Reprimands the Alabama State Bar’s formal disciplinary charges within 28 days of January 31, 2012, or, thereafter, the charges contained therein shall be deemed admitted and appropriate discipline shall be imposed against him in ASB No. 09-2834(A) before the Disciplinary Board of the Alabama State Bar.

Reinstatement • Mobile attorney Frank Dreaper Cunningham was reinstated to the practice of law in Alabama by order of the supreme court, effective September 1, 2011. The supreme court’s order was based upon the decision of Disciplinary Board, Panel II, granting the reinstatement with conditions. Cunningham was reinstated on a probationary basis for a period of four years. Among the conditions of his probation, the board ordered that (1) Cunningham serve only as in-house counsel to his employer and not engage in the private practice of law; (2) Cunningham may provide legal advice to his employer in-house, but may not appear on behalf of his employer as counsel in external matters; (3) Cunningham must attend a total of 60 hours of remedial CLE, in addition to the 12 hours annually required of members of the bar; (4) during the four-year probationary period, Cunningham must sit for and pass the Alabama bar examination for admission to practice; (5) Cunningham must certify to the Office of General Counsel that he has completed the remedial CLE and has successfully completed the bar examination, and failure to do so within the four-year probationary period will result in revocation of the order readmitting Cunningham to active status, including the limited in-house practice authorized by the order; and (6) upon certification of the successful completion of the bar examination and the CLE requirements prior to the expiration of the four-year probationary period, the limitations on Cunningham’s practice will terminate and Cunningham shall then be restored to full active status and the probation lifted. [Rule 28, Pet. No.11-737]

Transfer to Disability Inactive Status • Bessemer attorney Eric James Copeland was transferred to disability inactive status, pursuant to Rule 27(b), Alabama Rules of Disciplinary Procedure, effective August 8, 2011, by order of the Disciplinary Board of the Alabama State Bar. [Rule 27(b), Pet. No. 2011-1316]

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with his clients during the course of representation and Suspensions failed to adequately update the clients on the current sta- • On September 16, 2011, Huntsville attorney Cheryl Ann tus of their matters. [ASB nos. 2010-591, 2010-606, Baswell-Guthrie was interimly suspended from the prac- 2010-613, 2010-712, and 2010-1801]

tice of law in Alabama pursuant to Rule 20(a), Alabama • Daphne attorney John William Parker was interimly sus- Rules of Disciplinary Procedure, by order of the pended from the practice of law in Alabama as ordered by Disciplinary Commission of the Alabama State Bar. The the Disciplinary Commission of the Alabama State Bar on Disciplinary Commission found that Baswell-Guthrie’s con- October 17, 2011. After a hearing, the interim suspen- tinued practice of law is causing or is likely to cause sion was stayed by the Disciplinary Commission, effective immediate and serious injury to her clients or to the pub- October 27, 2011, pending further proceedings. lic. [Rule 20(a), Pet. No. 2011-1510]

• Effective September 1, 2011, attorney Jennifer Gregory Cannon of Semmes has been suspended from the practice of law in Alabama for noncompliance with the 2010 Mandatory Continuing Legal Education requirements of the Alabama State Bar. [CLE No. 11-721] CLE • Huntsville attorney Annary Aytch Cheatham was interim- COURSE SEARCH ly suspended from the practice of law in Alabama, effective August 30, 2011, by order of the Disciplinary Commission of the Alabama State Bar in response to a petition filed by the Office of General Counsel evidencing The Alabama Mandatory CLE Commission continually evaluates and approves that Cheatham’s conduct is causing, or is likely to cause, in-state, as well as nationwide, programs which are maintained in a com- immediate and serious injury to a client or to the public. puter database. All are identified by sponsor, location, date and specialty [Rule 20(a), Pet. No. 2011-1435] area. For a listing of current CLE opportunities, visit • On October 6, 2011, Phenix City attorney Dana Posey www.alabar.org/cle. Gentry was interimly suspended from the practice of law in Alabama pursuant to Rule 20(a), Alabama Rules of Disciplinary Procedure, by order of the Disciplinary Commission of the Alabama State Bar. The Disciplinary Commission found that Gentry’s continued practice of law is causing or is likely to cause immediate and serious injury to his clients or to the public. [Rule 20(a), Pet. No. 2011-1654]

• Tuscaloosa attorney Steven Wesley Money was suspended from the practice of law in Alabama for 91 days by order of the Disciplinary Commission of the Alabama State Bar. The suspension was then held in abeyance and Money was placed on probation for one year. In addition, Money was ordered to enroll in and complete the Alabama Practice Management Assistance Program. The order of the Disciplinary Commission was based upon Money’s con- ditional guilty plea to multiple violations of the Alabama Rules of Professional Conduct. Specifically, in ASB nos. www.alabar.org/cle 2010-591, 2010-606, 2010-613, 2010-712, and 2010-1801, Money failed to adequately communicate

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DISCIPLINARY NOTICES Continued from page 23

Therefore, John William Parker’s license to practice law in Collins was paid a flat fee of $2,500. Thereafter, Collins Alabama was reinstated effective October 27, 2011. failed to take any substantive action with regard to the [Rule 20(a), Pet. No. 11-1563] estate or having the client’s brother removed from her mother’s house. Throughout the representation, Collins’s client called and left numerous messages with Collins’s office and on his cell phone seeking an update on her Public Reprimands case; however, Collins failed to adequately communicate • On September 16, 2011, Birmingham attorney Henry Lee with his client. Collins admitted that he did not file any- Penick received a public reprimand without general publica- thing on behalf of the client. [ASB No. 2010-798] tion for violations of rules 1.3 and 1.4(a), Alabama Rules • Phenix City attorney Larry Joel Collins was ordered to of Professional Conduct. In or about November 2003, the receive a public reprimand with general publication for viola- complainant was involved in an automobile accident in tions of rules 1.3, 1.4(a), 8.4(a) and 8.4(g), Ala. R. Prof. Atlanta. Thereafter, the complainant retained Penick to file C. In addition, Collins was placed on probation for a period claims for compensation for medical expenses, lost wages of one year pursuant to Rule 8(h), Ala. R. Disc. P. In and pain and suffering. The complainant provided Penick September 2009, Collins was retained by a client to assist with the police report, photographs of the damaged vehicle in modifying the terms of the client’s divorce decree and to and medical records. Penick did not communicate again assist in obtaining custody of his infant daughter. Collins with the complainant until in or about March 2005. Penick was paid a flat fee of $1,500 to undertake the representa- informed the complainant that the insurance company had tion. Collins subsequently filed a motion for a new trial and not responded to his demand letters and that it would be the matter was set for hearing on November 12, 2009. necessary to file a lawsuit. The complainant paid Penick a Collins’s motion for new trial was denied by the court. After $316 filing fee. Thereafter, Penick was again non-respon- the hearing, Collins informed his client that he had filed the sive to the complainant’s requests for information regard- wrong motion and that he would need to file a motion to ing the status of his case. Eventually, in or about February modify the divorce decree. Thereafter, Collins took no fur- 2006, the complainant learned that nothing had been filed ther action in the matter and failed to respond to his on his behalf and that the two-year statute of limitations client’s requests for information concerning the status of had expired. [ASB No. 2006-107(A)] the case. [ASB No. 2010-1693] • Phenix City attorney Larry Joel Collins was ordered to • Mobile attorney Johnny Mack Lane received a public rep- receive a public reprimand with general publication for vio- rimand with general publication on September 16, 2011, lations of rules 1.3, 1.4(a), 8.4(a) and 8.4(g), Alabama for violations of rules 1.15(a), 1.15(b), 5.3, 8.4(a), and Rules of Professional Conduct. In January 2010, Collins 8.4(g), Alabama Rules of Professional Conduct. was retained by a client to assist in probating her stepfa- Lane represented a client in collection matters for sev- ther’s estate and in having the client’s brother ejected eral years. The client filed a complaint alleging that he had from her mother’s home. On or about January 22, 2010, loaned Lane’s secretary $80,000, which she placed in Lane’s trust account. Thereafter, the client sued Lane and his secretary to recover the funds. There was some dispute regarding whether or not the money given to the secretary was a loan, but there was no dispute that the money was placed in Lane’s trust account by his secretary without Lane’s knowledge and then subsequently with- drawn without Lane’s knowledge. The client also alleged that Lane did not provide a full accounting of collection matters handled for the client’s company. Although Lane provided the client with all of the files and information available to him, he admitted that his secretary handled all of the client’s collection accounts

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and that he had no knowledge of the whereabouts of Professional Conduct. Cowart was retained to represent a some of the files. client to obtain a guardianship and conservatorship over Lane reported the matter to law enforcement and his her first cousin in June 2007. He was paid a $1,500 fee secretary was subsequently indicted for theft of property plus filing fees. The client signed the petition in June 2007. in connection with numerous unauthorized withdrawals Thereafter, Cowart sought to obtain additional medical from Lane’s trust account and the unauthorized use of his information, which he received in September 2007. debit card all totaling $180,000. However, Cowart took no further action in the matter and Lane failed to make reasonable efforts to ensure that did not file the petition until April 2008. After the petition he had measures in place to ensure that his employee’s was filed, the initial hearing was continued due to lack of conduct was compatible with his professional obligations. service on the ward, but Cowart failed to timely notify the Lane’s failure to properly supervise his employee resulted client who was traveling from Texas to attend the hearing. in the mismanagement and misappropriation of his trust Cowart also failed to respond to the client’s requests for account for which he was responsible. Further, Lane’s information regarding the status of the matter and failed to conduct adversely reflected on his fitness to practice law. expedite the case consistent with the interests of his client. [ASB No. 10-1172] It is noted that, as mitigation, Cowart refunded the entire fee to the client and eventually completed the matter for • Tuscaloosa attorney Donnis Cowart received a public rep- which he had been retained, but only after the bar com- rimand with general publication on September 16, 2011, plaint was filed against him. [ASB No. 09-1313(A)] | AL for violations of rules 1.3, 1.4 and 3.2, Alabama Rules of

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ABOUT MEMBERS, AMONG FIRMS

Armbrecht Jackson announces About Members that J. Robert Turnipseed has joined William H. Caughran announces as a partner. the opening of Caughran Mediation Baker, Donelson, Bearman, LLC at 705 New Hope Mountain Rd., Caldwell & Berkowitz PC announces Pelham. Phone (205) 470-6640. that Kristopher Anderson and Christopher S. Hamer announces Joshua F. Reif are now associated the opening of Hamer Law Group LLC with the firm. at 1400 52nd St. N., Birmingham 35212. Phone (205) 218-4436. Burke, Harvey & Frankowski LLC Please e-mail announcements announces that Allen Schreiber and Rukeya L. McAdory announces the to Marcia Daniel Micah Adkins have joined the firm. [email protected] opening of The McAdory Firm LLC at 200 88th St., S., Birmingham 35206. Butler, Snow, O’Mara, Stevens & Phone (205) 370-9094. Cannada PLLC announces that Michael B. Beers, A. David Fawal and Angela Peter A. McIntosh announces the T. Baker have joined the firm. opening of Peter A. McIntosh LLC at 153 S. Oates St., Dothan 36301. Capell & Howard PC announces Phone (334) 671-2555. that Barbara J. Wells returned as a shareholder. P. Mark Petro announces the formation of Petro Law Firm PC at The Cochran Firm announces that 2323 2nd Ave., N., Birmingham Cassie Fleming, J. McDavid 35203. Phone (205) 327-8311. Flowers, Jr., E. Leanne Richardson Due to space constraints, and John J. Givens have joined as The Alabama Lawyer no associates. longer publishes address changes, additional addresses Ralph D. Gaines, III, Ronald J. for firms or positions for attor- Among Firms neys that do not affect their Gault, Tracy N. Hendrix and In the November 2011 issue, N. employment, such as commit- Brandon T. Bishop announce the for- tee or board affiliations or gov- John Rudd, a member of Johnson & mation of Gaines, Gault, Hendrix & ernment appointments. We do Freedman LLC for eight years, was Bishop PC with offices in Birmingham not print information on attor- incorrectly listed as having recently and Huntsville. Julie D. Pearce, neys who are not members of joined the firm. Shelley D. Lewis and Travis G. the Alabama State Bar. Adair Law Firm LLC announces McKay have joined as partners, and About Members that Matthew R. Hill has joined as an Michael P. Barratt, Edward E. Blair, This section announces the Rebecca C. Donnellan, T. Brian opening of new solo firms. associate. Hoven, Travis I. Keith, Patrick G. The Alabama League of Among Firms Montgomery, Thomas C. Phelps, III, This section announces the Municipalities announces that Ken James A. Potts, II, and Chad M. opening of a new firm, a Smith has been named executive Vacarella have joined as associates. firm’s name change, the new director, Lorelei (Lori) Lein has been employment of an attorney or named general counsel and Tracy L. Gamble, Gamble & Calame LLC the promotion of an attorney within that firm. Roberts has been named deputy gen- announces that Woodruff R. Jones eral counsel. joined as an associate.

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The Gardner Firm PC announces Daryl L. Masters, Robbie A. Hyde Comer LLC at 1203 Dauphin St., that Reggie Copeland, Jr. has joined and Gary L. Willford, Jr. announce the Mobile 36604. Phone (251) 802-1263. as a partner. formation of Masters, Hyde & D. Benjamin Traylor and Matthew Willford LLC in Auburn and Muscle Cliff Hill, Brent Jordan and Joseph S. Davis announce the opening of Shoals. Phone (334) 246-2333 and Greer announce the opening of Hill, Traylor & Davis LLC at 2001 Park (256) 320-2135. Jordan & Greer PC at 929 Place N., Ste. 875, Birmingham Merchants Walk, Huntsville 35801. Maynard, Cooper & Gale PC 35203. Phone (205) 322-8558. Phone (256) 534-4502. announces that Lois S. Woodward M. Brandon Walker and James M. has joined the firm. Kaufman Gilpin McKenzie Thomas McMullan announce the opening of Weiss PC announces that Carla Cole Milam & Milam LLC announces Walker McMullan LLC at 242 W. Gilmore; Robert E. L. Gilpin; Clinton that Matthew Brown has joined as an Valley Ave., Ste. 312, Birmingham D. Graves; John A. Howard Jr.; associate. 35209. Phone (205) 471-2541. Sarah S. Johnston; Richardson B. Miller & Christie PC announces Wettermark Holland & Keith McKenzie, III; Simeon F. Penton; that Kyle L. Kinney has joined as a announces that Jessica Brooks has Leslie Pitman; Robert M. Ritchey; shareholder and the firm’s name is joined as an associate. Davis H. Smith; George W. Thomas; now Miller, Christie & Kinney PC. Wayne L. Williams & Associates LLC John Ward Weiss; Brent Wills; Bernard Nomberg and David announces that Jessica L. Champion Mitchel Hampton Boles; Joseph W. Nomberg announce the opening of the has joined as an associate. | AL Carlisle; Jonathan S. Harbuck; Nomberg Law Firm at 115 Richard Jeffrey E. Holmes; David M. Hunt; Arrington Jr. Blvd. N., Birmingham Kenny Williamson Keith; Spencer A. 35203. Phone (205) 930-6900. Joel Kinderman; and Lynlee Wells Palmer Nomberg is of counsel. are associated with the firm and Gregg Brantley Everett and Samuel Ogletree, Deakins, Nash, Smoak Kaufman are of counsel. The firm will & Stewart PC announces that Lisa be known as Gilpin Givhan PC. Karen Atkins has joined the firm.

David Hogg and Aaron Gartlan Phelps Dunbar LLP announces that announce the formation of The Hogg Meaghan Erin Hill has joined the firm. & Gartlan Law Firm LLC at 408 S. Robinson Law Firm PC announces Foster St., Dothan 36301. Phone that Charles E. Robinson, Sr. is of (334) 699-4625. counsel.

Huie, Fernambucq & Stewart LLP Sirote & Permutt announces that announces that Gardner Miller Jett, Adam J. Sigman has joined the firm.

Jr. has joined as an associate. Smith, Spires & Peddy PC Johnston Barton Proctor & Rose announces that Angel A. Darmer has LLP announces that William Horton joined as an associate. has joined the firm. Starnes Davis Florie LLP Lee & McInish PC announces that announces that R. Larry Fantroy, Jr. Benjamin H. Barron has joined as an has joined as an associate. associate. Stone, Granade & Crosby PC Lightfoot Franklin White LLC announces that J. Bradford Boyd announces that Alysia Harris, Erik Hicks has become a member. Harris, Brian Kappel and Christopher Desi V. Tobias and Bryan E. Comer Yearout have joined as associates. announce the formation of Tobias &

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CLASSIFIED ADS

Positions Wanted Associate Position Self-motivated recent bar admittee seeking associate position. Interested in Positions Wanted either plaintiff or defense work. Immediately available. May be contacted at [email protected]. Positions Offered Korean-Speaking Alabama Lawyer For Lease I am interested in immigration law (visa problems), maritime law and corporate law. Many Koreans have recently moved to Alabama due to the numerous Korean factories that have settled in the state. If you are interested in a Korean-speaking attorney, please contact me at [email protected].

Positions Offered Associate Position Small insurance defense firm seeking qualified, hard-working lawyer with superior writing skills for Birmingham office. Initially will be hired on contract basis with potential for long-term employment. Law review or similar activity required as well as top 15 percent of class. All responses will be confidential. Send resume to [email protected].

For Lease Office Space Office space in historic Southside—2153 14th Avenue S., Birmingham 35205 400 to approximately 2,000 square feet available $375/$1,750 per month, excluding gas, electrical, janitorial Newly painted Newly carpeted Ample free parking Convenient to Red Mountain Expressway Handicap accessible Call in regards to our rent special! For further information, call (205) 939-1327 | AL

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