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All orders must be PREl'i\10 . Mnll book(s) 10: Alluw 2-4 weeks ror delivery. Make checks poyoblc co Name:------ M NOVEMBER 1991 Volume52, Number 6 Puoilhld N'V'tra llmtl A )'Ur (ihe YV8Nh issue G ~ ON THE COVER: Aller 36 )'W'S on the federalbench. and a not.>bleand distinguished i... d.t"°'°')' td 302 / November 1991 THE ALABAMA LAWYER PRESIDENT'S PAGE ...,,.- t the beginning of the bar year, I think it is impor 3. Central intake and statewide jurisdiction are essential to tant to outline some of the projects that you will be avoid charges of cronyismand the familiar criticism that the hearing more about as the year progresses. While "foxis guarding the henhouse". EJtime and space will not permit me to reviewa ll of 4. Non-lawyers must be given a significant role In the our committee and task force activities, l want to mention administration of the system. several important areas. 5. Secret proceedings are the greatest cause of distrust, and disciplinary systems can no longer operate secretly. Absolute Lawy er discipline immunity from suit should be given to personswho file com In my first article to you, I quoted a line from Robert Frost's plaints against lawyers. poem that mentioned the value of seeing yourself as other 6. Expediting processing of minor complaints, and summa people see you. ry procedures and consent procedures should be allowed to One area that I am afraid our profession is not seen in a insure prompt dispositionof complaints. very favorableligh t is the area of lawyer 7. Mandatory reporting of trust discipline.Some backgroundinfo rmation account overdrafts and random audits of in this area might be appropriate. trust accounts should be required of all About 20 years ago, an American Bar lawyers. Association committee (Clark Commit Some oi the findings and recommenda tee), formed to evaluate disciplinary tions of the McKay Commission are very enforcementi n the legal profession, pub controversial. Other recommendations of lished a report. The Clark Committee the Commission report a.reless controver report and recommendations led to many sial and should be seriouslyconsidered. changes in the process of lawyer disci 1 believe the purpose of lawyer disci pline over the last 20 years. pline is to protect the public. It is impor In 1989, the ABAappointed a second tan t that our disciplinary process not commiss ion to evalua te disciplinary only accomplish this purpose, but also be enforcement (McKayComm ission). The perceived by the public as being fair and purposes of the McKay Commission were responsive. As professionals, we must to study the progress made since the insure that our system avoids the criti Clark Committee had made its report, lo cisms of being too slow, too secret, too conduct some original research to evalu Phillip E. Adam s, Jr. soft and too self-regulating. The system ate the state of disciplinary enforcement must be fair to lawyersand to the public in this country and to make its findings and be perceived as such. and recommendations known. I have appointed a task force chaired by In Mayof this year, the McKayCom mission published its former President Bill Scruggs to study the process of lawyer draft reporL This report was discussedat length at the Nation discipline in Alabama and make such recommendations as the al Conferenceof Bar Presidents meeting in Atlanta this past task force deems appropriate regarding our process. It is my August. I understand that some revisions to the report are hope that this task forcewi ll reviewa ll available data and mate being made at this time and it will be presented to the ABA rials and make recommendations to improveour procedure. House of Delegates for action at the ABAmid -winter meeting I receiveat least two calls per week from disgruntled clients in Dallas. I won't attempt in this report to outline all of the complaining aboul lawyer conduct, legal ethics or the disci findingsa nd recommendations to the Mcl IS YOUR SECRETARY REAL ESTATE CERTIFIED? AITORNEYS Y ou've made a large inv.. tmont to •talT your offices with LASER SOFfWARE good,qualified people. Did you know th•t there is a certilica• Lion ex•mination ro, legal&e<:relAr lea? A complete line of Real Estat e Closing TheAlabama Association nrLega l S..:retar ies(AA.LS) offcB Programs including the Certil'iedProfcssional Leglll Secretary E,auni .natioo("PLS") ~ HUD's, Buyer & Seller State ments, f0 Tl-IEALABAMA LAWYER November1991 / 305 EXECUTIVEDIRECTOR'S REPORT Did you know this? Court of the Judici:uy: Members of lhe AlabamaState Bar serve in numerous rep Hugh A. Nash,Oneonta (93) resentativecapacities. Appointments are made. usually by the William0. Scruggs, J r.. Port Payne(97) board of commissioners, pursuant to an appropriatesta tute or In addition to Bill Scruggsand Hugh Nash, the bar elected bylaw governingthe enlil-yinvo lved. as alternates judge.son the Court of the JudiciaryJ. Edward I thought I would share with you the names and positions Thornton of Mobileand NormanI lnrris of Oecatur. which our members currently hold after learning recently The bar elects eight of the 15 persons who comprise the introducedlegisl ation wouldcall upon the bar to name mem Boardof Oirectorso( the LegalSel'\/ices Co rporallon of Alaba bers to another such group, the Legislative Compensation ma. Currently~rving after their election Commission.1 was impressed with how by the board of commissionersare: often our members are asked to serve in CeciliaJ. Collins,Mobile (92) variousrepresentative roles. RobertD. Segall. Montgomery(92) Nationally,the AlabamaState Bar has WalterE. McGowan.Tuskegee (92) three elected members of the American BryantT. Whitmire, Birmingham(92) Bar Association House of Delegates. OliverFrederick Wood, Hamilton (93) These persons serve at their own expense Scott K. Hedeen,Dothan (94} and serve two-yearterms and may be re AlVreeland. Tuscaloosa (94) elected. The board of commissioners J. McGowinWilliamson. Greenville (94) elects these persons. Currently serving are Wade H. Baxleyof Dothan, J. Jerry One memberof the AlabamaSec:u rilles Wood of Montgomery and Ben H. Harris, Commission is elected by the board of Jr. of Mobile. These are not, however,the commissioners.Actually, the bar submits only Alabnmians In the House. N. Lee three names to the Governorpursuant to Cooper serves as chairman of the ABA Section 8·6-51(/\). Code, 1975, and he Houseof Delegateswhile Cary C. Hucka names the member. Currentlyserving as by of Huntsvillesits as a member of the the bar's representative is E.B. Peebles, ABABoard of Governors. William C. Reginald T. Hamner Ill of Mobilewhose appointmentextends Knight represents the Birmingham Bar to October31. 1993. Association. Due to Cary Huckaby's recent election to the board of governors, his position as a The bar commission also elects members to the board of state delegate was vacated and Wade Baxley, as the most trustees of the AlabamaLaw Foundation, Int. Those serving senior AlabamaState Bar delegate,moved, under ABAbyla"•s, by electionare; into this state delegate position on an interim basis through Ben H. Harris,J r.. Mobile (94) August 1992. AlabamaSlate Bar President Phil Adamswas LynnR. Jackson, Clayton (92) electedto fill Baxley's formerposition. Baxley h as indicatedhe RoyJ. Crawford,B irmingham(93) will seek elecllon as state delegate in his own righl for thal Harry W. Camble,Jr ., Selma (94) three-yeart erm in an election amongABA members In Alaba· John Earle Chason,Bay M in clte (92) ma in the spring of 1992. The lerms of Harris and Woodend John 8. Scott,Jr. , Montgomery(93) in August 1992, while Baxley's elected term, currently filledby ln addition, the president. president-elect and immediate Ada.ms,expires in 1993. pa.stpresident of the AlabamaState Bar sel'\/eby virtue of their The passageof the JudicialArticle resulted in the establish• office. menl of a Judicial InquiryCommission , the Court of tht Judi· The CapiW Representation Ruourc:e Center is the most ciaJy and the JudicialCompensation C-Omml.sslon. The bar, by recent entil)' to which its board membersare to be electedby statute. must elect two personsto serveon eachof thesebodies. the board of commissioners.Currently serving are: Thosecurrently holding these positionsand the )'ears in which J.L. Chestnut,Jr., Selma(92) their c:urrenlterms expire(noted in parentheses)are as follows: AnneW. Mitchell,Birmingham (92) Judicial Inquiry Commission: Prank S. James, lll, Birmingham(92) WilliamB. 1-fairston, Jr.. Birmingham(95) AlbertP. Brewer,Birmingham (92) J. Don Poster.Po ley (93) Jesse R. Brooks,Jr .. Huntsville(93) Judicial CompensationCommission : VanzettaPenn McPherson.M ontgomery(93) Charles R. Adair, Jr .. Dadeville (95) WilliamPosey Cobb, II , Montgomery(93) BrooxC . Garrett, Jr., Brewton(95) DennisBalske, Montg omery (94) 306 / November19 91 THEALABAMA LAWYER F'rankH. McFadden,Mont .gomery(94) PanelIll: RichardS. Manley.Oemop01is (94) Robert M. Hill, Jr., Florence James S. Llo;'tl. Birmingham Each slate bar in the U.S.Eleventh Judicial Circuit has three CathyS. Wright, Birmingham named delegates to its Judicial Conference. These persons are GeorgeW. Royer.Jr., Huntsville app0intedfor a three,year term with each incumbent president WaymanC. Sherrer, Oneonta of the slate bar naming one delegateand an alternate. The cur· rent delegatesand alternates are: PanelIV: Oekgates: BowenIi. Brassell,Phenix City WandaD . Devereaux,Montgomery (92) Ceorge Higginbotham.Bessemer John A. Owens,Tuscaloosa (93) R. BlaireLazenby, Talladega Alternates: GeorgeP. Ford. Cadsden William0. Melton,Evergreen (92) ConradM. Fowler.Jr .. Columbia.na BrooxC. Holmes,Mobile (93) MandatoryConUnuing Legiil Education Commission: ASBPresident Adamswill name a delegate and alternate in Lynn R.Jackson. Clayton.chairperson Decemberwith terms to expirein 1994.Service to the barand the John DavidKnight , Cullman profession,as welias practicebefore the U.S.District and U.S.Cir· J. MasonDavis, Birmingham cull courts. are ractors consideredin selecling U1esedelegates. GeorgeW. Royer,Jr., Huntsville Theseperso ns receivean invitation to the EleventhCircuitJudicia l Arthur F. Fite, Lil, Anniston Conferenceas ASBdelegates and serveal no expenseto the oor. John A. Russell.Ill , Aliceville ConradM. Fowler,Jr. , Columbiana Pursuant to supreme court rules. the bar commissionelects BenjamenT. Rowe.Mobile the bar examiners.the members of the OlscipliruuyCommlJ. SamuelA. Rumore, Jr., Birmingham sion, the DisciplinaryB oards and the Nandatory Continuing Legal Educal.ionCommission . With the exception of the bar Board of Bar Examiners: examiners, the membership of these bodies is restricted to MichaelD. Waters.Montgomery, chairperson membersof the board of bar commissioners.Current members MarcusW. Reid,Anniston of these groups are: Kenneth0. Simon, Birmingham Ronald I.. Davis,Tuscaloosa Disciplinary Commission: Randall M. Woodrow. Anniston VictorM. Lott, Jr., chairperson DavidP. Broome,Mobile James It Seale,Montgomery T. ThomasCottingham. Birmingham James E. Hart. Jr .. Brewton John C. Calame,Selma DraytonN. James, Birmingham RobertH. Rouse,Mobile Di,dplinary Boards: AndrewP. Campbell,Birmingham PanelI: C. MichaelStilson, Tuscaloosa WilliamB. Matthews, Sr., Ozark Laura 1-Crum. Montgomery A.J. Coleman, Decatur AnneW. Mitchell,Birmingham Lynn R.Jackson, Clayton If you are interested in serving in any of these capacities. J. MasonDavis, Birm ingham write to me or your bar commissioner. 1'hese are all tlme·con, Jerry C. Porch, Russellville suming p0sitions, but pro(esslonallyrewarding . PanelII: You can see Ulereare numerous areas outside bar commit RichardH. Gill,Montgomery tees, task forcesand sections for servicewhere your talents can John W. Kelly, lll, Selma be utilized in furtherance of our public resp0nsibility.The per• WandaD. Devereaux.Montgomery sons noted herein represent you and your interest. Your input J. Robert Faulk, Prattville is encouragedand welcomed. Jerry K. Selman,Jasper HaveI told}'OU more than }'OU really wanted to kn(,;;? I hope not • I TELEPHONE EQUIPMENT Buy • Sell· lns1all • Repair Traffic Accident Reconstruction AT&T, BEU, ITT, EXECUTONE, etc. • 5 Button Merlin - $150 • One Yea1 Warren Tl AL BER T ME DINA 1-800-239-56 55 (ii\ WARREN TELECOM , INC. P.O. BOX:240934 MONTGOMl;RV.A1ABAMA 36124 (205)277,7m \ ~ Hwy. 280 E. Childersbur g THE ALABAMALAWYER November1991 / 307 JUDGEFRANK M. JOHNSON,JR. WhenThe Goin'Got Tough... n 0ctober30. 1991-his73rd Tinsley Yarborough and Robert F. (Reynolds u. Sims 1964) . He abolished birthday-Judge Frank M. Kennedy, Jr., as well as forthcoming the poll tax. He ordered Governor Johnson, Jr. took senior sta works by Jack Bassand frank Sikora. George Wallaceto allow the civil rights tus on the Eleventh Circuit Judge Johnson is best known for a march from Selma to Montgomery mCourt of Appeals after 36 yearson the fed series of courageous-and , in their lime, (Williams u. Wallace, (240 F.Supp. 100 eral bench. This issue of The Alabama highly controversial-decis ions involv (M.D. Ala. 1965)1). He ordered the first lawyer commemoratesJudge Johnson's ing human rights. Televisioninterviewer comprehensivestatew ide schooldesegre distinguished and courageous tenure as Bill Moyers, in a 1980 interview with gation (lee v. Macon County Board of a jurist in Alabama during one of the Judge Johnson, summarized those deci Education , (26i F.Supp. 458 (M.D.A la. state's most difficult eras. sions in this way: 1967) (three-judge court)I), and was the Frank Minis Johnson, Jr. was born in rirst to apply the equal protection clause 1918 in Winston County, a north Alaba of the Constitution to state laws discrim ma county whose citizens are known for inating against women (White v. Crook, their fierce independence and strong 1966). He establishedthe precedentthat respect for individual rights. He married people in mental institutions havea con Ruth Jenkins of Haleyville in 1938. After stitutional right to treatment (Wyatt v. atten ding public schools in Winston Stickney , (344 l'.Supp. 373 (M.D. Ala. County, the GulfCoast MilitaryAcademy 1972)1), a sweeping breakthro ugh in in Mississippi and Massey Business Col mental health law. Misorder to eliminate lege in Birmingham, he took an LL.B. at jungle conditions in Alabamapr isons is the University of Alabama in 1943. the landmark in prison reform (Pugh v. Thereafter, Johnson saw combat in Locke, 1406 F'.Supp. 318 (M.D. Ala. the infantry in France and Germany 1976)1)." during World War 11.He was wounded This issue of the lawyer does not twice and decorated with the Purple revisit those landmark district court Heart with oak leaf cluster, Bronze Star decisions. which are well-knownand fre and combat infantryman'sm edal. Judge Frank M. Johnson, Jr. quently discussed, except briefly in U1e Upon his return to Alabama, Johnson interviewwith Judge Johnson conducted began his legal career in general prac "Fate placed J>rankM inis Johnson. Jr. by Stephen Rowe. Instead. focus is on tice with the firm of Curtis, Maddox & in the nerve center or confrontation and other side.s of his life and career that are Johnson in Jasper in 1946. He was change.To giveyou an ideaof his impact less explored. appointed United States Attorney in the on the Soulh and the nation during his Judge Gerald B. Tjonat, chief judge of Northern District of Alabama in 1953, 24 years on the district bench, this is the Eleventh Circuit Court of Appeals. and came to Montgomerywhen he was how he responded to the challenge. He writes on the subject of Johnson's 12- named United States District Judge for declared segregated public lransporta· year tenure on the federalcircuit bench. the Middle District of Alabama in 1955. Lionunconsti tutional (Browder u. Gayle BryanStevenson 's article on Judge John Johnson served as chief ju dge for the 1956). He ordered the integration of son's opinions in the area of criminal Middle District from 1966 to 1979. public parks (Gilmore v. City of Mont justice explores a segment of Johnsonian In 1979, Judge Johnson was elevated gomery . (17.6 F.Supp. 210 (M.D. Ala. jurisprudence that is often overlooked. to the United States Court of Appealsfor 1961)1).Interstate bus terminals (Le.wis Portions from a recent interview with the fifth Circuit When that circuit split v. Greyhound Corporation, (199 F.Supp. Ruth Johnson. Frank Johnson's wife of in 1981. Judge Johnson was assigned to 210 (M.D.A la. 1961)1),res taurants and 53 ·years-a thoughtfuland spirited indi the new Eleventh Circuit Court of restrooms (U.S. v. City of Montgomery vidual in her own right-i!dd a new per Appeals,where he has served until the 1962) and libraries and museums (Cobb spective to events in Judge Johnson's present. Judge Johnson is the recipient u. Montgomery library Board J962). He career. Final!)•, a selection of stories of honorary degrees from the University required that blacks be registered to vote about Judge Johnson excerpted from a of Alabama, Yale Law School, Princeton (U.S. v. Alabama 1961), creating a stan book of anecdotes pul together by his Univers ity, the University of Notre dard that was later written into the 1965 law clerks in 1985show the judge known Dame, St. Michael's College, and Boston Voting RightsAct. He was the first judge best to his colleaguesand friends: a man University. He is the subject of several lo apply the one man-one vote principle not only of integrity and strength. but biographies, includ ing books by Dr. to state legislat ive apportionment also of prodigious good humor. • 308 / November 1991 THE ALABAMA LAWYER Followingare someexcerpf.f from "Anticsand Anecdotes~a collection of humoroustales about JudgeJohnson. II waspublished by someofJudge Johnson's law clerA·sand presentedin J985 al a celebration marking the 30th anniversaryof his serviceas a federaljudge. any years ago, shortly after come back and bring your girlfriendto Court. Aboutthal time, the clerk of the he had come to Mont watch me send you to the penitentiary court entered the office and inquired. gomery. Judge Johnson or can bring your wifelo watch me give "Does Judge Johnson have a nervous a.sked, in a pre-trial confer you probation: stomach, too?" ·No." the probationoffi ence, what the plaintiff and defendant A very important marriage ceremony cer replied, "but he's a carrier: lawyers Lhought to be the settlemenL was performed within two weeks, and, - Helen Harris range of Lheirrespective cases. It began true to his word, Judge Johnson gave with the plaintifrs lawyer saying ,,ery the defendantprobation. udge Johnson has long been forcefullythat he "hada nice little plain - GeorgeB. Azar, Montgomery known as a · no-nonsense " tiff'. and he believed the jury would judge. I wasan AssistantUnit assess damagesin the range of $75,000, rom 1965-69. I was an assis ed States Attorneyfrom 1954 which was very excessivein light of Lhe tant United States Attorney lo 1958 and am the only present damages. Judge Johnson's reply was, in the Southern District of employee orthe Court who was here "Youalso have a nice little judge, and if Alabama trying cases before when Judge Johnson ascended the Lrial the jury gave you Lhnt,he would set it Honorable Dan Thomas, United States bench about 30 yearsago. I Lrieda num aside." district judge. In Mobile, attorneys ber of cases as Assistant United States - Maury Smith, Montgomery could question witnessand makeobjec Attorney and as a private practitioner Lionswhile seated at counsel table. In before Judge Johnson, and I have had nc of my more memorable FebruaryJ 969, I transferredto the Mid onlyone experienceIn which it could be encounters with Judge dle Districtof Alabama.In March.I tried said that Judge Johnson Jost his comPo Johnson came alter mv my first criminal case before Judge sure on the bench. tenure as Jaw clerk. while Johnson. The case hadn't proceeded A moonshiner had taken the stand in serving as an appointed counsel. The very Jong~fore I objected(while I was his own defensein a case whereinsever· defendant, a young man, had pleaded seated)to defensecounsel's question on al Internal RevenueAgents had testified guilty to a raLherserious charge. The cross-examination.Judge Johnson said, that they had approachedan active still )'Oungman asked if he couldspeak with "I can't hear you. Mr. Segrest." Still and observed the defendant and an the judge about his sentence. seated, I objectedlouder. and he said," I unknown person lire the still, stir the Whenwe appearedbefore Judge John still can't hear you, Mr. Segrest." Prus mash and go about the usual processes son, in chambers,a young girl carrying Lrated, I stood up and repeated my of making moonshine.When the agents a small b,,by also came in. As usual, objection. Mis response: "Now, I can attempted to arrest the two subjects, from the pre-sentence report, Judge hear you. Sustained."I LriedLhe rest of both tried to nee. the defendantunsuc Johnson knew more nbout lhe defen the caseon my feet. cessfully. dant than the defendant knew himself. - BrowardSegrest, Monlgomery At trial, the defendantinsisted that he After some discussion, the defendant was perfectlyinnocent of any intent to askedJudge Johnson /or probationso he probationofficer , well-known contributein any wayhis servicesto Lhe could gd 3 job and support his baby. for hosfrequent bouts of indi makingof moonshine,that he had ~en The judge Lhenasked, · Js Lhatyour baby gestion, wasobsef\oed at the hunting with his companion on a cold the young lady has with her?" The Houston County Courthouse and rainy day andthat needingthe sup defendant responded that it was, and one a/ternoon as he popped into his port of some liquid sustenance, his Judge Johnson then asked Lhedefendant mouth his usual Oveor six after-dinner friend suggestedthat they stop by a still if he was marriedto the young lady.The antacid tablets. A young deputy clerk and partake of the by-products. The defendantreplied that he was not, and asked with concern why he needed so defendant denied having stirred the Judge Johnson said. "Well, tell you many tablets. The probation officer mash or fired the cooker and insisted what. I am going lo continue your sen explained that he had a nervous stom that his only participation was to take a tencing for two weeks, and you can ach, as did everyoneelse in the Federal small drink In an effort to ward off the THE ALABAMAI.AWYER November1991 / 309 possibleravages of pneumonia. of the offensive nature of the name oi he most memorable one-liner On cross-examination, the prosecu the other moonshiner, he must reveal which I recollectoccurred in tor, being a hunter himself and possibly the name to the prosecutor. Thereupon, New Orleans in the court · sympathetic to the need for liquid sus the defendant. with a helpless shrug, house while several judges tenance after a long day of hunting in answered, "His name was Peter." were waiting for an elevator and com inclement weather, conducted more or Whether or not his last name was plainingabout the heavyworkload. Judge less a friendly conversation with the ever disclosed is lost on record because Johnson entered the elevator, turned defendant in which it was acknowl of the uniform indication of mirth. and around and commented. "Well, it sure edged by all that it could be very nice to I can well remember the high chair beatsplowing ." hunt with an old friend and stop for a occupied by the judge. and referred to -Judge R. Lanier Anderson, /ff much-needed toddy after hours of expo as the bench, turn so that only the back sure to wet and cold. It was conceded of the chair, rocking in rhythmic beat, fler becoming United States that the joys of partaking of such suste· was visible to the courtroom. Attorney,the judge was cross nance could be enhanced considerably It ofien has been said by experienced e.' 310 I November1 991 THEALABAMA LAWYER -- ~!'E,~rpts fram OpinionsIi--- (Federal Rules Decision, Grau u. Procter & Camble Co., 32 F.R.0. 199 (1963),as reprinted in The Nw Yorker,July UnitedStates District Court. M.O.Alabama( 6. 1963.a t 53. n January 8, 1963. the orncial court re11orter for Corl M. Miles, et al., u. City Cound/ of Augusta, Georgia. this distrlcl filed with lhe clerk of this court a cer United States CourLor Appeals , Eleventh Circuit, August 4, @]tilied transcript of the proceedings in this c.ise. 1983. Subsequent to the filing or the original certified PER CURIMI: transcript by the court reporter. the defendants. now the laintiffs Carl and Elaine Miles. owners and pro appellees,asked this court to strike and eliminate certain por· moters of "Blackie the Talking Cat," brought this lions thereof. The exact portions or the record which this suit in the United States Dlstricl Court for the court is asked to strike are as follows: Southern District of Georgia, challenging the Page24: "MR. CARRETT:Ha. ha, ha, ha." constitutionality of the Augusta, Georgia, Business License • Ordinance ... "MR. GARRETJ':I la. ha, ha, ha." The partnership between Blackie and the ~lileses began Page42: "Q (MR. Ci\RREITJ:Ha, ha, ha. ha." somewhat auspiciously in a South Carolina rooming house. • • • According to Lhedeposition of Carl MIies: "Q IMR. CAllRETTI : Ha. ha, ha." Well. a girl come around with a box of kittens. and she Page 74: "Q IMR.CARREIT (: Ha. ha." asked us did we want one. I said no. lhat we did not want Page 82: "MR.CARRF.IT: Ha. ha. ha." one. As I was walking away from the box of kittens. a voice Page105: "MR. CARRF.Tf:Ha. ha. ha. ha.. spoke to me and said, "Take the black kitten." I took the JUROR:"Ha. ha. ha." black killen. knowing nothing else unusual or nothing else In asking this Court to edit the record and strike lhe abo11e strange about the black kitten. When Blackie was about five portions, the appellees state ''that although Mr. Carretl and months old, I had him on my lap playing with him, talking the juror may have made some sound al such times. that it to him, saying ··1 love you". The voice spoke to me saying, was llll inadvertent mannerism. such as a person coughing. clearing his throat or otherwise inadvertenUy making a sound." The appellet$ contend that the inclusion of the above portions of the proceeding merely seM to cluLler unduly the WE SAVE YOUR record on appeal in Lhis case. The pl,,intiff. now the appellant, TIME ... formally objects to ,dtcring or changing lhe official transcript. Those who know Lhe HonorableJames Garrett, Attorneyal Now legal rc...enrehassismncc Law.who was. according to the record. doing all of the "ha. haing," would hesitate long and deliberate seriously before is available when you need 11. suitgestmg that he is not a highly competent practitioner or L E G A L wnhou11hc neces. The Alabama State Bar • Endorsed Insurance Programs * FAMILYLt FEI NSURANCEfeatures benefits for both eligible members, spouses. children and employees. lSl Available through Northwestern National Life Insurance Company. * MAJ OR MEDICALIN sURAl'CEprov ides benefits for both eligible members.spouses . children and employ ees 10 $2,000,000. Available through Comioemal Casualty Company. • HoSPITALL,'DEMNITV pays daily benefits up LO500 days with a maximum of $300 per day. AcceptanceGuaran teed 10 eligible members under age 60 who arc either working or aucnding school full-Lime. Available through Commercial Life Insurance Company. • ACCIDENTALDEA DI AND DtSMEMllERMEN'fINSURANCE prov ides coverage for accidental loss of life, sight, speech, hearing or dismemberment. Benefit amounis to $250,000avai lable. This is available through Commercial Life Insurance Company. • DlSAJJll.ln'INCOMJ! featu res "Your Own Specialty" definition of d.isability as well as coverage for partial disabilities. Benefits available 10 80% of your income in most cases. Available tbrough Commercial Life and iis parcm company UNUM. • OF'FtCP.OVERflEAO Ex:P£NS£ reimbu rses your eligible business expenses. Available 10 eligible members under age 60 who arc engaged in fuU-timepractice and not on full-Lime duty with any of the anncd forces through Commercial Life and its parent company UNUM. r::-- ..- - . -- . ------(derachandmaR)------, I For addittona! mformatton contact: ALABAMA STATE BAR I I William K. Bass, Jr. I Please sand me informationabou t the AssociationGroup P lan checked; I Insurance Specialist s, In c. ( J Member LileInsu rance ( I Disability Income I Suite 135 ( I Spouse Lifo Insurance ( I Employee Oisabifity lncomo I I ( I Employee Lile Insurance ( I Office Overhead Expense I 2970 Brandywine Road ( J Major Mecical Insurance ( I Hospital Indemnity (Guarantoed Issue) I I Atlanta, Georgia 30341 ( IAccidonlal Doalh aJ1dOismombermont (GuaranlDed lssuo) I I 1-404-458-8801 Name I I l-800-241-7753 Toll Free Number Add ress I I 1-800-458-7246 Fax Number . City/S tate/Zip I ~Representattve~l~~~tat~de~ _ _ Business Telephon~ ______~irrhdat":______d 312 /November 1991 THEALABAMA LAWYER r------, I ADDRESS CHANGE CHANGEOF I ______Mtmbcrhknufl cauon tSocialSt turllylNumbtr I Choou on<.. Hon. Mr No. )ll.u Ml. Othtt I rullN.amc______ADDRESS I Sw,nt»PhoN ~lll'lllbt:r ______I lbc< ______,,.. ______Pleasecheck Yourlisting in the cur I !Jlnhdlt~------YtarolAdmw)On.______rent 1990-1991 AlabamaBar Director.11 I Offi«M1ullnaAddtts1------and complete the form al right ONLY If I Cll)' ______,Sllltt __ _ _ _ I County IP_ ___ _ there are any changeslo Your listing. I Due to changesin the statute govern I ()lf'.ccStrat AdJttMtildiffatnt f,o,n,Na~ )ddttS) J ------Ing election of bar commissioners.wt I c,~ ______.si.t,.__ __ _ noware required to use members'office I County______,.11•___ _ _ addresses, unless none is available or a I member is prohibited from receiving stMebar mail list at the office.Addition ally. the AlabamaBar Directoryis com piled for our malling list and it 1s importantto use businessadd resses for that reason. (These changes WILL NOT appear in the l991-l992 edition oflhe directory.The cut-off date for the dlrcc· tory Information was September I. 1991.) NOTE:If we do not knowof a chan11e in address.we cannot make the neces sary changes on our records, so please notify us whenyour addresschanges. • PLEASE HELP us ... We have no way of knowing when one of our membershipis deceased unlesswe are notified Do no1w ait for someonee lse to do 1t; if you know of the dealh of one of our members. please tel us know. TIIEALABAMA LAWYER November199 1/ 313 BAR BRIEFS Lasseter installed as The NCBP is a voluntary, indepen of a controversial cause or client where chairperson of ABA section ; dent organization of past, present and the representative occurs in U1eface of Harris elected to Executive future presidents of state and local bar actual or possible disfavor or public Council associati ons. It is managed by a 20- unpopularity or adverse treatment by The AmericanBar AssociationSecti on member executivecouncil and support· the media of the lawyer, client or of General Practice installed Earle F. Las· ed by dues of individuals and member cause. seter as chairperson at its annual meet bar associations and meeting registra The most recent rec ipient of the ing in Atlanta. Lasseterwas also elected tion fees. award was Judge Robert J. Lewis, Jr. of to the House of Delegates of the ABAfo r The NCBP's major activity is present the Kansas Court of Appea.ls for his three years. ing-in conjunction with each ABA cour ageous defense, on a pro bono Lasseter is a graduate of Auburn Uni· annual and midyear meeting- a two basis, or a defendant in a criminal case versity and the University of Alabama day educational program on the issues in which there was great public outrage School of Law. He is a partner in the affecting the organized bar's public ser about the alleged crime and Judge firm of Pope, McGlamry, Kilpatrick & vice and member serviceact ivities. Lewis' representation of the defendant. Morrison or Atlanta and Columbus, Harris is a graduate of Davidson Col· Matters handled which resulted in the Georgiaand Phenix City, Alabama. He is lege and the Univers ity of Alabama awards ranged from civil and adminis· a native of Gadsden. Alabama and is a School or Law. I-le is a partner with the lrative matters to criminal cases. member of the American Bar Associa Mobile firm of Johnstone, t\dams, Bai Nominations should include a resume tion, Alabama Slate Bar, Alabama Trial ley, Gordon& Harris. of the nominee, copies of any newspaper Lawyers Association. Georgia State Bar, accounts of the matter handled by U1e Georgia Trial Lawyers, Distr ict of College soliciting nominations nominee, and letters of support from Columbia Bar and the Association of for award members of bench and bar who are Trial Lawyerso f America. The American College of Trial Lawyers know ledgeab le of the matt er. They Also, former Alabama State Bar Presi periodically grants an award for the should be sent to: dent Ben H. Harris, Jr. of Mobileh as been insta nces of courageo us advocacy by SylviaH . Walbolt elected to a three-year term on the Exec members of the bar, whether or not Fel Carlton, Fields,W ard. Emmanuel, utive Council of the National Conference lowsof the College. The definition of the Smith & Cutler of Bar Presidents. conditions of the award is as follows: One Harbour Place The election took place at the NCBP's The award of the College for "Coura P.O. Box 3239 annual meeting in August in Atlanta in geous Advocacy" shall be given for out· Tampa, Florida 33601 conjunction with the annual meeting of standing efforts by a lawyer, whetl1er or theABA. not a member of the College, on behalf Nominations open for Devitt award Nominations are also been solicited for the 1991 Devitt Distinguished Ser ALABAMA BAR DIRECTORY vice to Justice Award. The award was established to recognize the dedicated public service by members of the federal The 1991-92 Alabama Bar Directory judiciary. All federal judges appointed will be mailed in December. under Article LUof the Constitution are eligible recipients. Each member in good standing Among the previous winners is United of the Alabama State Bar will receive one free eopy. States Circuit Judge Frank M. Johnson, Jr. of Alabama. Add itional cop ies are $15 each . The honor includes an award of an in scribed crystal obelisk and $15,000 made available in the name of Judge Edward J, Please mall checks,. made payable to Devitt, longtime Chief UnitedS tales Dis Alabama Bar Directory, to P.O. Box 4156, trict Judge for the District of Minnesota, by West Publishing Company, St. Paul. Montgome~y, AL 36101 . Minnesota. A committee comprised of Judge Devitt,Ju stice John Paul Stevens of the 314 /November 1991 Tl-lEAl.ABAMA LAW YER U.S. Supreme Court, and Chief Judge Shore Drive, Chicago. Illinois 60611. Subcommittee on Franchise Litigation. WilliamJ. Holloway,Jr . of the Tenth Cir Phone (3121988-5555. The appointmentwas made by the Litiga cuit Court of Appealswill ~lect the 1991 tion Section of the ABA's BusinessTorts recipienl. Book out on worker s' co mp Committee during the ABAAnnual M eet Nominationsf or the 1991 award must claims ing in Atlantain August. be submitted by December 31, 1991 to: A new 258-page monograph is now Freese is a graduate of Cumberland Devitt Distinguished Service lo Justice available to guide lawyers representing Schoolof Law. Award, P.O. Box 64810, Sl. Paul, Min employees, employers or insurers who nesota 55164-0810. deal with workers' comp claims. The Point er elected, Ogl e publisher is the Tort and Insurance re-elected to board of AJS Secretary of State 's new Pracllce Sectionof the ABA. Sam C. Pointer. Jr., chief judge of the address The articles are drawn from a recent U.S.Distric t Court for the Northern Dis The new mailing address for the Office Tll)S annual meeting and were written trict of Alabama.recentl y was elected to of the Secretary of State is P.O. Box by some of the country's most promi the AmericanJudicature Society Boa rd of 5616, Montgomery, Alabama 36103- nent authorities in the area5 of labor Directorsat the Society'sannu.,I mttting 5616.with officesloca ted at the Stuling law, occupational medicine and insur in Atlanta, and Birmingham attorney Centre on Carmichael Road.Just off the ance. Richard F. Ogle, of the firm of Schoel. Perry Hill Roadexit of 1-85in east Mont The book is available from TIPS for Ogle, Benton.Gentle & Centeno,was re gomery. $54.95or for $49.95 for TIPS members. electedto the board. plus $3.95 for handling. Mail orders to Pointer is a graduate of the University Legal Desi< Reference ABAOrder Fulfillment 519, 750 North of Alabama School of Lawand NewY ork relea sed Lake Shore Drive, Chicago, Illinois UniversityGraduate School of Law. He is West Publishing Companyannounces 60611. a member of the AmericanB.n Associa the release of Legal Desk Reference, tion. AlabamaState Bar and the Birm which providesapp roximately 9,000 def Directory published for people ingham Bar Association. He is a 1990 initions of legal words and phrases.Also with AIDS or HIV recipient of the Samuel Cates American included are dictionary llslings of 893 A comprehensive listing of programs College of Trial Lawyers Award and a ways Lo rid writing of cliches, redundan and organizations providing free legal 1988 recipient of th e Francis Rawle cies, colloquialisms. vague phrases, and services to people with AIDSor the HIV American Law Institute-American Bar overly formallanguage. virus is available.The 368-pagepublica AssociationAward. For additional information, contact tion was compiled by the ABA'sAIDS Ogle is a grad Westal 1-800-3?...S-9352. CoordinationProject. uate of the Uni The directory is organized by slate, versity of Alaba Section's referenc e guide and each listing includes name, address, ma Schoo l of avallable telephone number and a brief descrip I.aw, and is a A reference gu ide for atto rneys tion of the project. It also has informa member of lhe involved in antitrust and other litiga tion on nalional and state organizations. Alabama Sta te tion. The Antitrust EvidenceHandboo k. The AIDS Coordination Project is a Bar, the Birm is a,'ililablefrom the AmericanBar Asso project o( the ABA'sAIDS Coordinating ingham Bar As ciation's Section of Antitrust Law. Committeeand the Section o( Individual sociation, the Six major topics are. addressed in the Rights and Responsibilities. It coordi· 091• AlabamaLaw In handbook: Hearsay Issues Mosl Relevant nates the ABA'sAIDS-related activi ties stitute and th e In Antitrust Cases. covering issues such and acts as a clearinghouse for existing American Trial Lawyers Association. as co-conspirator statements and prior AIDSprograms by publishing 11q uarter Ogle served as president of the Birming statements and testimony of a witness: ly newsletter and by providing descrip ham Bar Association. RelevanceIssues in the Antitrust Con tions of existing programs.sample train Founded in 1913.the AJSis a national text. where conduct protected by the ing materials. intake forms. funding independent organization of morethan First Amendment is discussed; Privi proposals.eligibility guidelines and arti 20.000 citizens \\-orkingto improve the leges, which includes a discussion of cles about the AIDScrisis. nation's justice system. physician-patienl privilege in the For more information contact Michele antitrusl context; the Privilege Against Zavos. ABAA IDS Coordination Project, Alabama attorneys attend Self-Incrimination, covering limitations 1800 M Street. NW. Washington. D_c_ ce ntenn ia l meeting and adverse inferences of privileges; 20036,or phone (202) 331-2248. Membersof the AlabamaCommission Experts.which cites liabilityand market on UniformState Lawswere among the power as issues on which experts often Freese appointed chai r of sub 260 law professors, judg" and lawyers testifyin antitrust cases:and a summary commltt- who participated in the 100th annual of Collateral Estoppel. llichard A. Freese. a partner with the meeting of the National Conference of The handbook is available from the Birminghamnrm of Burr & Forman,was Commissioners on Uniform State Laws ADAOrder Fulfillment. 750 North Lake recentlyappoi nted chairpersono ( the ABA held recently in Florida. THE ALABAMALAWYER No,-ember 1991/ 315 Founded in Standing Committee on Lawyers in the is cunently an associate with a Dallas. 1892, the ULCis Armed Porces in 1971-73. He also Texas firm. the group of com served on the Task Force on Public Edu Sheryll D. Cashin, a Huntsville native, missioners ap cation, the Consortium on Legal Ser served as a law clerk to the Honorable pointed by each vices and the Public, and the Standing Thurgood Marshall, associate justice , state to draft pro Committee on Lawyers Public Service United States Supreme Court, after her posals for uni Responsibility. Huckaby has been a graduation from Harvard Law School. form laws that member of the House of Delegates, the She will be joining the Alabamafi rm of are designed to policy-making body of the ABA.since Sirote, Permutt when she completes her clerkship. Crook solve prob lems 1982, and is a Pellow of the American common to a II Bar foundation. He is a past chair of the Matthew H. Lembkerecently graduat states.Over the years,ULC efforts h ave re ABAStanding Committee on La\\lyer ed from the University of Virginia Law sulted in the UniformCommercia l Code. Referral and Information Servicesand of School and will serve as law clerk to the Uniform Partnership Act, Uniform Con the Special Committee on Delivery of Honorable J. Harvie Wilkins. Ill, U.S. trolled Substances Act, Uniform Ana Legal Services. He is a member of the Fourth Circuit Court of Appeals. tomical GiftAct and uniformchild custody Board of Directors o( the AmericanJudi Sarah H. Cleveland, winner of the and suppOrtcodes. cature Society and a Fellowof the Amer 1990 scholarship, is in her third year at Past commis ican College of Trial Lawyers. He has YaleLaw Schoo l. sioners have in also been active in slate-level activities, cluded Woodrow including serving as president of the West donates building Wilson, U.S. Su· AlabamaState Bar. West Publishing Company recently preme C-0urt J us He is a graduate of the University of announced its intention to donate to ti ces Louis D. Alabamaand the University's School of Ramsey County (Minnesota) rts present Prandeisand Wil Law. headquarters building located in down liam F. Rehn town St. Paul. This donation will be the quist, and profes Wi lliams rec eives schol a rship third major donation of property that sor RoscoePound Lisa D. Wil West has made in recent years for chari Jones of Harvard. liams of Mont· table and governmental purposes. ln Current mem gomery has been addition to the present donation, West bers of the Alabama commission are awarded the Cab donated much of the property the Ord· Charles M. Crook, Montgomery;Thomas aniss, Johnston way Theater is on, and, more recently, L. Jones, Tusca.loosa:and GeorgeF . May Scholarship for West donated its former High Bridge nard, Birmingham. 1991. Williams is plant to the City of St. Paul to be used as the daughter of an incubation site for new businesses. Huckaby joins boa rd of Mr. and Mrs. The present donation, valued in excess governors of ABA Curl is Williams of Sl2 million, consists of West's head Gary C. Huck WIiiia m• and a 1986 grad- quarters building and the land it sits on, aby, a partner in uate of Jefferson including 60 parking spaces. the Huntsvi lle Davis High School. She graduated firm of Bradley, summa cum laude from the University Stude nt bar assoc iation Arani. Rose & of Alabama in 1990. Williams attends named best In nation White, recently Yale l..awSchool. The Student Bar Associational Cum became a mem The scholarship was established by berland School of Law,Samford Univer ber of the Board the Birmingham firm of Cabaniss,John sity, has been named best in the nation of Governors of ston, Gardner. Dumas lit.O'Neal in 1987 by the AmericanBar Association. the American to reward academic excellence. The The national award is presented annu Huckaby Bar Association. $5,000 scholarship is awarded annually ally to the association deemed tops Huckaby will for the second year of law school to an among those at· 175 ABA-accreditedlaw serve a three-year term representing Dis Alabama resident attending an ABA schools. Cumberland representatives trict 5 on the 33-member board. The dis accredited law school. The AlabamaLaw accepted the award during a meeting of trict encompasses Alabama, Mississippi, Foundationadministers the scholarship. the ABAin Atlanta. North Carolina and South Carolina.The The four previous recipients of the Judges looked at ~ach organization's board meets five limes yearly to oversee scholarship were academically outstand contributions to the law student body, administration and management of the ing students. Henry F. Sherrod, Ill , son communication with school administra 360,000-member ABA. believedto be the of Florence attorney Floyd Sherrod, tion and community service. largest voluntary membership profes served as a law clerk to the Honorable Cumberland's community activities sional association in the world. Patrick E. Higginbotham. U.S.Fifth Cir include work with the Alabama Center Huckaby has been active in the ABA, cuit Court of Appeals,upon his gradua for Law and Civic Education and spon starting with his membership on the tion from VanderbiltSchool of Law. He sorship of a Law Explorers post of the 316 / November1991 THEALABAMA LA WYER BoyScouts of Americaand a Volunteer for Lawand Civic Education and Birm lncomt TaxAssistance chapter. ingham filmmaker L. Wade Black have An SBA-sponsoredlecture series dur been awardedan S82.588grant by the ing 1990-91 included such speakers as United States Commission , on the former U.S. Supreme Court nominee Bicentennial of the Constitution. The Robert Bork and former Circuit Court of grant wi 11 fund five videotapes on AppealsJudge John C. Codbold. Alabamians who have played major roles in defining right.sprotected by the law Day USA 1992 U.S. Constitution.Grant funds will also comm e morate s struggle be used to prepare teaching materials The 1992 theme of I.aw Day USA for the Bicentennialof the Billor Right.s commemorates lhe continuing impor in December of this year. Lnnce the rule of law plays in America The Alabama Center ror Law and and honors those around the world cur CivicEducat ion is a non-profitresource rently engagedin lhe democraticstrug and training center for law-relatededu Distinguished Works of Art gle for justice. cation In Alabama.funded primarilyby wi th Le gal Subje ct Matt er The purpose of Law Day USA,cele the AlabamaState Departmentof Edu Trial Scl'nes, Lawyers, J11rors, brated annually on May l. is to reserve cation, the Alabama Law Foundation Famous Courtrooms, cl'c. by a "special day of celebration by the and the U.S. Departmentof Justice. Its Daumier, n,oma s Nnrt 8et1ta11, American people in apprec iation of programs include statewide teacher Rowla11dso11,Giotto, Others their liberties and Lo provide an occa training in such areas as constitutional Exquisite Framed Roproducllons law, drug education and juvenile delin Matched Sets and lndlvlduol Work$ sion for rededication to the ideals of for Office, Study . Library equality and justice under laws." Law quency prevention, and the coordina or Llvin9 Room Day USAwas established by United tion of special projects. including the Sutes Presidential Proclamation in recent visit to Alabamaby U.S.Attorney -...~ 1958and reaffirmedby a Joint Resolu Ceneral RichardThornburgh. lec,al aRtVJORkS tion of Congress in 1961. Black is the former director of the P.O. Box437 Chesler, CT064 12 The AmericanBar Association,as the Alabama Filmmakers Co-op, a 1982 nallonaI sponsor of Law Day USA,p re AlabamaCovernor·s A rts Awardrecipi paresa detailedplanning guide lo assist ent, and a recipient of three NEA individualsand organizationsconduct regionalfellowships. Ing Law Dayprograms. In addition. the ACLCEad,isors for the Bill of Rights PAY $1 , 000 RETAIL ABAmakes availablemany promotional videotapes include history professors FOR THIS LEATHER and educational/informational materi Wayne Flynt, l'orresl MacDonaldand EXECUTIVE CHAIR als. r11ngingfrom buttons and balloons Jeff Norrell; journalism professor Jack to leanets, brochures. booklets,speech Bass: educators Linda Felton, Linda texts and mock trial scripts. Jones and Jim Kilgore; law professors For more information,write Law Day Charles Cole and Martha Morgan: USA,American Bar Association, 8th Alabama Public Television producer Floor. 750 North Lake Shore Drive, Sandra Polizos; Bill Perris, director. Chicago.Illinois 60611,or phone (312) Center for the Study of Southern Cul 988-6134.The 1992 planning guide will ture; and Alice Knierem, of LheA laba· be availablein late January. ma Department of Archivesand Histo ry. UABprofessor DavidSink is direct ing teacher training workshops related to the Blll of Rights Bicentennialwith support from the AlabamaHuman ities f'oundalion. OR $599 * DIRECT! Subjectsselected for use in the series ...... """"" include the Wallace v. Jaf(ree school Topgrade leamer In Midi>Dhl Blue, Rava! Burgundyo, ForeslGreen Stlperb crafts prayer case, Virginia Durr's involve m.inSlllpfrom one of North Caroltllil's te:lifing ment in the movement lo repeal the olllcefurniture fl'l!111Jiac~111rs Oihl!fcl!al,s il1d,ot;is atdeep aiscounts Brodms ana poll tax, the desegregationof the Birm r"11chesonll!qUeSI. ingham schools,and the IVga/1u. Stick SatisfactionGuaranteed ! n1111cases dealing with care for lhe 1-800-443-6174 ACLCE award ed grant for film mentally ill. A fifth videotape will pro Cl1!d..Visa, MaslerClrd Alabamacelebrates the Bicentennial vide an overviewrelating these cases to of the Bill of Rights in a new documen the Bill of Rights and other constitu SEASO NS ll•t 11 IIC I 1~1 Il l 11 111 •• - .. - tary video series. The AlabamaCe nter tional amendments. • Tl IE ALABAMALAWYER November199 1 / 317 A COLLEAGUE'S PERSPECTIVE OF 1Jill£1~IB JJ@]]]~~®~ By JUDGEGERALD TJOFLAT umming up Frank Johnson's he began to lake charge. Rather. his per of the Fifth Circuit, we needed a judicial career and his contri sonality - that is, the sheer force of spokesman of impeccable credentials, bution to the cause of justice it - quietly took over. And the court, whose motive, in presenting our case, Elin our circuit - in fact, and the people of the six states of our could not be questioned. Frank Johnson throughout the nation - is a formidable circuit, were the beneficiaries. was the obvious choice, so we formed a task, a formidable task indeed. Much has alreadybeen written about his quarter of a century of serviceon the district court. I would,therefo re, be guilty of rank pla giarism if I were even to comment on that service. Por, I was not there In Montgomery while he was confronting a docket of some of the most difficult, emotion laden cases a trial judge has ever had to face. It was, to use the sports announc ers' favorite expression when the game is on the line and the going gets tough, "gut-check time": it wasg ut-check time 24 hours a day, seven days a week, year in and year out. Those who were there - his staff, the lawyers and liti ga.nts, the press. and, of course, Ruth Johnson - experienced it all firsthand, Judg e and M rs. Joh nson with Judg e a nd M:rs. Tjo fla t and so I leave the tell ing to the m. r focus, instead, on Frank Johnson. the His leadership first manifesteditself in committee and made him the chair. circuit judge, the man my colleagues the spring of t 980. when it became Within two months. he had steered a bill and I have come to know over the past apparent to us that a court o( 26 judges, through the Senate. The groundwork for do1.enyears. the one Congress had given us, simply this was laid in the proceedings before Prank Minis Johnson, Jr. joined our could n'Otfunction efficiently the way a the Senate Judiciary Committee. Judge court July 12, 1979, when it was the old court should. The solution? The circuit Johnson obtained the committee's unan Fifth Circuit. The court numbered 15 had to be split into two circuits; we imous endorsement. (It is pure myth judges then, but we were soon to would petition the Congress to do so, that he obtained the endorsement by become a court of 26. Congress having without delay. intimidating the committee members by added 11 new judgeships in a bill passed Splitting the Pifth Circuit, however. glaring at them over his half glasses.as if earlier in the year. Going from the trial would not be an easy task. Many in the they were trial lawyersappearing before bench, where he functioned alone - civil rights community felt that, if the him in the district court) ruled the roost, if you will - to the circuit were split, the clock would be It took Prank a little longer to work appellate bench. where he would be turned back and the advancementsthey his magic in the House; the bill didn't function ing in three-judge panels or had made would be lost. Consequently, reach the House floor until September with the whole cour t en bane, was, they would oppose, with every resource 1980. Once there, however, it passed understandably, quite a transition for available, any attempt to divide the cir with flying colors. The President Frank Johnson. As all of us who have cuit. We had to allay their fears if we promptly signed the measure into law, gone from the district court to the court were to succeed in the Congress.To do and, effective October I, I 981, the o( appeals have learned it's a new world this, to convince the civilr ights commu Eleventh Circuit and the new Fifth Cir there. The transition didn't last long, nity and the Congressthat splitting the cuit were born. though; as soon as he got settled down circuit was necessaryif we were to con The efficiency the division of the old and became familiar with "the territory", tinue to administer justice in the states l'ifth Circu.it has wrought has been 318 /November 1991 THEALABAMA LAV/YER astonishing. This efficiency is demon situations. This is n?flectedin his story his upbringing, an innate sense of right strable In a number of ways. I only cite telling, which. of course. is legendary. and wrong. of Fundamental values. of here the ·bottom line". During the last and in the many difficult remedies he what the Pramers had in mind when court year, the 12judges of the Eleventh had to fashion as a district judge, in, for they enshrined the words "due process Circuit Court of Appeals have decided example,the school desegregationcases of law", and the courage to adhere to more cases- 150 percent more - than and the controversiesinvolving the con his beliefs. regardless of the public out lhe 26 judges of Lhe old Pi(th Circuit ditions of the prisonsand mental institu cry or the adverse personal conse decided 111henthe circuit was divided. tions in Alabama. To fashion remedies in quences such adherence may bri ng. And,what is more important, our dock these cases.moreover, to havt the reme These traits have been, and will contin el is current. dies obeyed,which they were, he had to ue lo be. the sine qua non of his decl· Frank Johnson's value to our court. as know the peopleof Alabamawho, he had sion-making. an institution. cannot possibly be o,u long sensed.were intuitivelylaw abiding. The decision th, court reaches in a stated. The constitutional scholars and All of these skills and insights do not. case is a group decision; thus, to carry others in the academiccommunity, who however. in my mind, account for the the day, the opinion,writer must per daily monitor. digest and criticize our landmark decisions Frank Johnson has suade a colleague lo join him. Judge work, which, in the main, consists of made, as a district Judge and as a mem Johnson is a past master in the art of our written opinions. have, jn com· ber of this courL in other words. while persuasion - in particular, because of mcnlinR on Judge Johnson's opinions, his skills and Insights have given him his humanity . his sensitivity and his made th is quite clear. What has pro the ability to fashion these decisions, marvelous sense of humor. He is the duced these opinions, and, thus, such they have not mandated them. It look perfectgentleman, the perfectco lleague. acclaim, is a question I will address in something in addition: the man's char And, now he leaves the court, to the SJ)acethat remains. acter. assume ·senior status". Though he will Frank Johnson brings many skills to Fnnk Johnson has frequently been be sitting with us on assignment from the task of decision-making; they are described as steel-willedand uncompro lime to time, he will finally get the well-known. Ile has a quick. analytical mising (or, in some quarter'$,just plain chance to do some of his fa1,oritethings, mind and. as has been widely noted, ls stubborn). To be sure, he is that. but which he has had to put aside ror far too very inquisitive:he is constantly search there is far more. He has, as a matter of long, Wewis h him Godspeed. • ing for the truth. Addedto this is a wide· ranging knowledge or the substantive law - constitutio nal law, in part icular - and. given 25 years on the trial bench, a profound kno111ledgeof proce dural rules. In short. he has all or the The Video Advantage tools one needs lo break down a caseto its essential elements, lo separate the wheal from lhe chaff.which he does as Professional video and phot ography gives Quicklyas anyone I have encountered. you the edge in presenting your case. l'rank also has an uncanny knack of discerninl!l hc real motivations behind a dispute, the parties', or their laW)'ers', • Video depositions hidden agendas. This should not be sur• • Evidence videos prising. Por > By ROBERT L. McCURLEY,JR. Alabama Law Insti t ute President Jim Campbell, who is also Once the Legislature and the gover Annu al Meeting speaker pro tern of the Alabama House nor have agreed on a reapportionment The Law Institute held its annual of Representatives, assumed the presi plan, this plan must be reviewed by the meeting in conjunction with the Alaba dency after having served eight years as Justice Department, who has 60 days to ma State Bar Meeting in Orange Beach. vice-president. Campbell can look for act. If additional questions are asked by The following persons were elected as ward to the completion of the following the Justice Department, the State has an officersfor the 1991-92year: revisions that are in various stages of additional 60 days to respond. At any President: Jim Campbell. Anniston completion: time, the plan may be challenged in a Vice-president: YettaSamford, Probate Procedure federal court. Opelika Rulesof Evidence Since legislators do not run for office Executive Committee: BusinessCorporation Act again until 1994. the Legislature has GeorgeMaynard. Birm ingham Article 2Aof the UCC-Leases until then to reapportion itself. Rick Manley, Demopolis Article 4Aof the UCC-FundsTransfers The Reapportionment Committee is Oakley Melton,J r., Montgomery Article 8 of the UCC-Securities co-chaired by RepresentativeJim Camp Ryan deGraffenried,Jr., Tuscaloosa Limited Liability Companies be 11of Anniston and Senator Ryan E.C. Hornsby. Montgomery deGraffenried of Tuscaloosa. The Leg Frank Ellis,Colu mbiana islative Reapportionment Committee is composed of 22 legislators. They have Oakley Melton,Jr . retired as president employed DavidBoyd of Montgomeryas of lhe Law Institute having served from counsel to the committee. He was the J.984 to 1991 and was only the third attorney representing the State in the president since the Law Institute was 1980reapportionment plan. founded. The other pres idents were Hugh D. Merrill of Annislon (1969-78) Legi s lative Refer ence and Finis E. St. John, Ill of Cullman Service Director (1978-84). During Melton's eight years Jerry L. Bassett has been appointed as president, 16 major revisions were director of the Legislative Reference completed and passed by the Legisla Service, effective October 1991. Bassett ture. Including: Non-profit Corporation comes to Alabamafrom California, hav Act, Eminent Domain Code, Uniform ing served the last 25 years in the Leg Guardianship and Protective Proceed islative Council Bureau, and was cur ings Act, Alabama Securities Act, Adop rently principal deputy legislative coun tion Code, and Uniform Condominium se I for the Californ ia Legis lature. Act. The Alabama Supreme Court also Bassett has a law degree from U1eUni adopted new Rules or Criminal Proce Reapportionm ent vers ity of Californ ia, Berkeley and a dure. With the official count of the 1990 bachelor's degree from the Universityo r census being received by the State on Wisconsin, Madison. He has been a February 6, 1991, the Legislature must member of the State Bar of California reapportion both itself and the Congres since 1966. He and his wife, Andrea, sional districts prior to the next election have two children. • -"\~-'' for the respectiveoffices. MEDICAL/ DENTALEXPERTS It is expected that Governor Guy Hunt will call the Alabama Legislature back Robe rt L. GRATIS:M EDICALTE AM PREVIEW into session during late October or early Mc Curtey , Jr. GRATIS: CLINICAL REPTD Y OUR OFFICE Novemberlo redistrict Alabama's seven RobertL . McCurley, JI , !!Mill: WRITTENREPO RT If NOM ERITOR Congressional districts. The Pem,anent is ino dlfOC.'latol ,ho CAUSATIONP OOR Alabama Law tn.scitute LegislativeCommittee on Reapportion at the Unlvotsity ol AFFIDAVITS SUPER RUSH! ment has held 16 public hearings across Alabama..lie recei.,.ecl the state laking test imony as to Con his undorg1adua1eana HEAL TH CARE AUDITORS, INC. lew degreeslrom the P.G.I. 22007 , Sl Potonh!J Fl 33742 gressional reapportionment. The Reap Unl\leratty. CAll 813-579-8054 tr FAX813·573- 1333 portionment Committee has held six For Servic e or Informa tion Packet meetings and received24 plans. 320 I November 1991 THEALABAMA LAWYER ANECDOTES from Judge Johnsons Wife, Ruth . -., Frank •nd Ruth John son On Their First Date Princess Theatre - he came straight to the OverheadBridge. Youjust sal and talked, but no parents \"Ould have given per I 111usthave been- let's sec, I hope I was 15, I 111ighlhave still mission for their kids lo meet like that at u,at age without hav been 14 - he asked me to go lo the moviesand. ()( course, I ing some adult with them. Elberl drove up out there. (Hel had lo ask my mama - no telephones- so I asked my mama. didn't even pause going by LhePrincess Theatre. So, that ended and she says is there anybodyelse [going!? my date, my first date. Bui Mamaagreed, I guess reluctantly.He had his daddy'scar, but it was still daylight fandf we were on the wa>'lo the Princess Theatre, and we had no intention of going lo the On Attendance at Trials PrincessTheatre. At thal lender age I already had learned sub ••. I have never been in a courtroom . .. terfuge. All the teenagers hung out at a place called the Over· I have never heard a case ... head Bridge. It was a bridge that was arched over the railroad I did, at one time. want to go and I casually told l'rank John tracks at a certain place.and that's just where you went lo park. son I was going to the courthouse, Lhal I wanted to hear that Nowthis is where \\'t were; it wasgetting darkabout this lime. case. He said, "Ruth, the courtroom is not for spectators. It's a f'rank's fatherhad secondthoughts about his car. and he got in ,-eryserious business bet\\'ttn !\NOcontending factions,and if touch with Frank's cousin, his mother's sister's son. Elbert you were sitting in the courtroom, you \\'Ouldbe distracting my Williams.and told him that he had to havehis car and to goto the attention and other's atlcnlion from what's going on and they PrincessTheatre and findl'M and tell him that he neededhis car. deserveeverything thal they have coming to lhcm,eithe r side." lllbert, knowingw hat everybodydoes, didn't even go to the So,when I i;tolt hat lecture. I never wenL THE ALABAMALAWYER November1991 / 321 they did, they came back to him. I think it was about 95 per· On Marriage cent of the Republicansin Alabamasupported his nomination [Wle told our parents, and my sisters were very unhappy ... [t]o be a federaljudge. I don't think he had any opposition about it. But, my mother alwaysloved Frank, and Mrs. Johnson then. was crazy about me. So, we didn't have any Iproblems!. Frank's The vacancyoccurred in Montgomery.T hat is where Judge father said he thought we ought to wait, you know. but, his l 322 / November 1991 THE ALABAMALAWYE R On Leavingthe Baptist Church friends.And, they would write notes to each other when they were hearing cases - nothing to do with the case. And, they Let me tell you what Frank told the Baptist deacon who talked on lhe telephone a lot. I le was so enthusiastic about so came. ll was VisitationDay . He is still a member of the Baptist many different things. not Jusl his work. He was a good per Church. J'irst Baptist Church lin Montgomery].And, he said, $On, too, and his wifewas a closefr iend of mine. "The nmson I left the BaptistChurch lwlas that during all lhi~ She was very much like I was. She didn't go to court and lime that my family and I were going through this, I looked she stayed away from it - the actual workings. You know, around and I did not find one supporter in that church. Not some wives think that their husbands need them on the front one person supported my position." And, the deacon agreed row of the courtroom. They rully feel that way and they with him. that that was true. thank that they are doing their duty. I nn-er fell that way. and Prank told him, "I don't think that I btlong in a group that 1l elen Vancenever felt that way. So. we had a lot in common. was so opposedto what I stood for." I am quoting him now. !Bob Vance!and Frank were close friends and. oh. he liked But. my viewof being there in the first place- I wantedJohn to cook. Make the biggest mess in the kitchen. And he liked n)• (the Johnson's son] to have a religious background.I just to eat. He knew every restaurant in Lhis stale, I guess. or U1oughtit was import.antror him to be subjected to Sunday probablyin the circuiL I le liked to go lo Miami.Nearly all the school. and all that goes along with It and church. And, then Judges did not like to go to Miami. but Bob Vance did. He he could reject it later if he ,,anted lo. But. if he hadn't experi would go all the way to Key West, or almost all the way. lo a enced it he wouldn't haveanyth ing to baseit on. restaurant that he knew about. My reason for not attending is this: When the freedom rid ers came to Montgomery, the Baptist deacons and leaders (Continued on Page325) linked arms and stood in front of the church on Sundaymorn ing to keep them out. My Young son asked why they were doing this. I told him and he was very upset. He said, "Jesus loveseverybody, Mama. In 'Sunbeams' we sing the song-'red and yellow. black and white. they are precious in his sight. Jesus loves the little children of the world.' So, 1vhydo they wanl to keep anyoneo ut?'' I said, "Son. I don't havean answer to thaL I don't know."And, tha t was lhnt. NOTICE FAU PROMOTION BEGINS FOR Al.ABA · On Martin Luther King MA STATE BAR LEX IS• MEMBERSHIP I thought he was a marvelousspeaker. Oh yes, I heard his GROUP PROGRAM sermons; I never went to the church. I told you I never asso ciated - I didn't meet any of these people personally. I saw Have a library on your desk as easy as l 2 him on lhe television. I have a copy of his "Dream" sermon 3. The Alabama State Bar's LEX1s• Membership that I read over the intercom at my school !Houston Hills Junior lligh School. then a predominantly black school in Group is offering special Incentives to new sub· Montgomerywhere Mrs.J ohnson taught in the 1960s).I think scnbers this fall The bar's program gives sole that he 111asa tremendous inRuenceon the black people. He praclltoonersand smallfirms alfordable access was a leader. Afier his death. they said everything is going to 0 to the LEXJScomputer,zed legal research ser- go back the way it was because "~ don't have a leader. And. frankly. I don't think the)' ha,-e come up with a real leader vice from lheu own homes and offices New since then. lie was that strong and that good. members of the program willreceive free traln· [At) Houston Hills. I asked on Martin Luther King Day, if Ing, free LEX1s•software and LEXIS./NEXIS they had any program planned for the students? They looked Legal Research Assistant Software, and lwo at each other and looked at me - no. Someone, one of the black te,,chers, said, 'We couldn't afford to do that. we would months unlimited use of lhe services al a lose our jobs.'' And, I asked the principal if she minded if I reduced price For those attorneys who do not read that speech over the intercom. I don't knowwhether any have PCs wrth modems. dedicated LEXIS• one knl!Wtha t it was me or not. I knew 1fthe authorities came by equipment 1s ava,lable at no charge. New mem that they would find out that it wasme who did iL Those 0 children neededto hear that. It is a wonderfulspeech. bers must sign on to the LEXIS seivice before December 31, 1991. For more information, On Robert and Helen Vance including pricing. contact Danielle Dom1co l remember how he enjoyed everything. He enjoyed being at 1-800-356-65 48. with people, talking. He and !'rank Johnson were such good THEALABAMA LAWYER November19 91I 323 DISCIPLINARYR EPORT Dl sb•rment law for a period of two year.;,effecti\'t August 22, 1991.Norris" Sylacaugalawyer Micha el Wll.)l1leLanders hasbeen dis· suspension was based upon findingsof the DisciplinaryBoard barred from the practice of law effectiveimmediately for mis of the AlabamaState Bar that Norris had failed to deliver to appropriating the funds of a client in violation of the Rules of the Officeof General Counsel of lhe AlabamaStale Bar a copy DisciplinaryProcedure. (ASB No. 89-827) or recording of an adverllsement in a timely fashion, engaged in conduct that adversely renected on his fitness to pracllce Suspension s law, and solicited or caused to be solicited on his behalf pro • Tuscaloosa lawyer Hugh Don Waldrop was temporarily fessional employment from a prospecLlveclient, when a signif suspended from lhe practice of law effectiveApril 20, 1990. icant motive for his doing so was his pecuniarygain. (ASB No. Thereafter, Waldrop was found guilty by the Disciplinary 87-424) Board of the Alabnma State Bar of a number of charges of • In an order dated August 27, 1991. the Supreme Court of accepting fees from clients and thereafter, not providing the Alabamasuspended Mobile attorney John A. Courtne y for a agreed-to legal services. in violation of DR 6-10 l(A) of the period of six (6) months, said suspension to become effective Code of Professional Responsibility, willfully neglecting a on August 27, 1991.The suspension was based upon the Disci· legal matter entrusted to him, DR 7-lOHA)(J)and (2); failing plinary Board'sfinding that Courtneyhad engaged in cooduct to seek the lawful objectivesof his client and failing to cany involving dishonesty, fraud. deceit, misrepresentation. and out a contract of emplayment entered into with a client for willful misconduct, and, furthtr, that he had engaged in con professional services; and DR 1·102(A)(6). engaging In con duct that adversely renected on his fitness 10 practice law. duct that adverselyrenects on his fitness to practice law. Wal These violations were based upon Courtney's having made drop was thereupon ordered suspended from the practice of sexual advances toward a remale client, and the fact that law for a period of three years, said suspension to run up to Courtney had previouslybeen disciplined by the bar for simi and through April 20. 1993.(ASB Nos. 89-22, 89-304, 89-527, lar misconduct. (ASBNo. 90-382)The aboue referenced al/or 89-639, 89-654, 89-655, 90-67, 90-244, 90-245, 90-255. 90· ney should no/ be confused with Mobile all omey John P. 256,90.263, and 90-327) Courtney, /ff. who is not being disciplined. • Birmingham attorney Robert McKlm Noni •, Jr . was sus • On August 13, 1991. Selma lawyer J amee Pa tri ck pended by the Supreme Court of Alabamafrom the practice of Chu hlr e was publicly censured for willfully neglecting a NOTICE NOTICE TO: Milla rd Lynn J ones FROM Alabama State Bar DISCIPLINARY RE: Order to Show Cause, CSF 9 1,22 PROCEEDINGS Noticeis hereby grvento MIiia rd Lynn Jo nes, attor ney, whose last knownaddress Is 620 Creekview Drive. Jim Clay Finch e r, whose whereabout s a re Pelham, Alabama 35126-1160, 1ha1 his name has been unknown, must answer the Alabama State Bar's certified to the DisciplinaryCommission for noncompli· formal disciplinary charges within 28 days of ance with Ille CUentSecurity Fund Rule requirementsof November 15, 1991, or, thereafter, lhe charges U,e Alabama Slate Bar and thal as e result thereot, an contained therein shall be deemed admitted and ORDERTO SHOWCAUSE has been entered against him appropriate discipline shall be imposed against ordenng him to show. w.lhln &b.ty(60) days fromthe date him m ASB Nos. 89-166 , 89-177 and 89-235 ol entry of the order why ho shOuldnol be suspended belore the Disciplinary Board of the Alabama from the pracbce of law Said o«1et h8vmg been entered State Bar August 9. 1991 . the attorney has unul December 15, Done this the 25th day ol November, 1991. 1991 to show cause. o,sc,pl,naryComm,ss/ol'I Alabama State Bar 1019 South Perry Stroor Montgomery,Alsbams 36104 324 / November 199l THEALABAMA LAWYER legal matter enlrusted to him, a violation or DR 6-JOl(A);or was publicly reprimanded for having failed to deposit the failing to seek the lawful objectivesof his client through rea funds or his client in an identifiableinsured depository trust sonably available means permitted by law and the disci account, of failing to safekeep the monies of Lhe client plinary rules. a violation of DR 7-lOl(A)(l); and of prejudic· entrusted to him for payment to the client's creditors. of ing or damaging his client during the course of the profes. foiling to maintain complete records of all funds of his client sional relationship, a violat ion of Disciplinary Rule which came into his possession, of falling to render an 7-10l(A)(3). Cheshire, on December 22, 1988, filed In the appropriate account to his client regarding her monies, and United States District Court for the Southern District of by misappropriating the funds of his client, by falling Alabama an employmentdiscrimination suit on behalf of his promptly to pay over money collected by him for his client client against Goodyear Tire & Rubber Company. On July or appropriating to his own use client funds entrusted to his 31. 1989.this lawsuit was dismissed without prejudice for keeping. (ASB No. 88-402) failure to obtain service of process against Goodyear.There after, the client paid to Cheshire an addilional sum for filing Tr ansfe r t o Disabilit y Stat u s fees and expenses to refile the suit. Cheshire failed to file • Dothanla\")\'r Fred Menefee Tatum , Jr. has \'Oluntarily suit and the statutory period for filing expired. (ASBNo. 91• transferred to disabilitystatus pursuant to Rule 27, Rules of 48). Disciplinary Proecdure (Interim), effective August 6, 1991. • On June 7, 1991. Mobile lawyer Vader Al Penning ton (Rule27(c) 91--04) An ec dot es from Ruth Johnson acteristlcs as a judge and a person( overlap. It is his strength. Me is the strongest man I've ever known, and I think you (Continuedfrom page323) would agree with me. I'm not talking about muscles, I'm talking about determinatlon and wlllpower and stubborness and e\lerything that goes together to make up strength. And On Goingto School at attention lo purpose. He has to have that determination to be a good judge. He has to have the self~onfidence to do the Alaban1aState University best he can come up with to make Lheright decision. And. he My (teaching( certificate had lapsed and I had to renew it. does it. And, I and no one else have ever or ever could influ The closest place I could do that was Auburn. It was before ence that. AUMwas here, so. I went to Alabama State. I went in and I know that he feels strongly about a lot of the things that asked lo enter the graduate school to get mough hours to •.. he is proud or a lot or the things he's done that help peo get my certificate. ple. and I know that he has hurl for people. too. I don't think I alwaysenjoyed going to school. I always enjoyedclasses. it would ever get in the way of a decision. I was taking the library intermediate courses and a lot of other stuff. I went down and took some black history cours· On Judge Johnson's Most es, "Search for Identity" and electives. After l had to fulfill my requirements for my certificate I just wenl ahead and got Important Accomplishments my master's degree. The students, mainly the ones in my classes. the older (Y(ou know we lived together through all of this. I don't school teachers, were very friendly. The younger people know that I could say any one thing (washis greatest accom resented me. One young girl (inl one of the black study plishment). I just hope that all the struggle he went through courses (said(. "Youdon't belong here. This is a black studies with the mental health case,thal ii has benefiUedLhe men course." I said. "Young lady, I paid my tuition and I'll come tally ill as much as I think it has. That has given me a lot of if II want tol." They didn't understand it. It was a good expe satisfaction. And, rm sure that the prisons were in terrible rience. condition when those ca.sescame up. These are things that you can see. I think the most important thing is that each case that was presented to him, he took it individually,and On Judge Johnson's didn't look right nor left nor forward nor backward, but Characteristicsas a Judge decided that particular case according to what he thought wns constitutionally a very good decision. J don't think there I'd have lo tell you as a person, too, because (his best char- was any question that this is what he's done. • TMEALABAMA LAWYER November199 l I 325 ABOUTMEMBERS, AMONG FIRMS Ill has become a member of the firm. Howard M, Mllu announce the forma ABOUT MEMBERS Todd R, Katz has become associated with tion of Stockham & Mllu , with offices the farm and BIIJ J . Brasw ell has become located al 1125 f'inan cial Center. 505 J , Michael WIIIJanu , Sr. announces director of administration with the firm. North 20th Street, Birminl(ham. Alabama the moving of hi! office to 2400 Frederick Orr.cu are located in Mobile and Mont 35203. Phone (2051252·2889. Road, Opelika, Alabama 36801 (near the gomery, /\lnban1aa nd Washin~ton, D.C. Boulouko1 & Ogleoby announces lhe Lee County Justice Center ). The mailing Robert H, Wal1ton , Fra nk C. Gal · relocation o( lls offices lo The f'inan cial address remain s P.O. Box 1068. Auburn , low ay , Jr ., L. Vaatlne Stable r, Jr ., Center. 505 North 20th Street. Suite 1675, Alabama3683 1. Phone (205) 705-0200. Char lu HQYts, Lawrence Dumas , m, Birmingham. Alabama 35203. Phone (2051 Rodae r M, Smit h erman announces C. Henry Marat oo, Vemoo L, Wells. 322-1641. the reloc.ilion of hos office to Bankfor Sav II , Jamu L, Birchall , Michael C. Cherr y , Clven1 , Tarver , Peten , ings Building. 1919 Morris Avenue, Suit~ QuJJJe.o, David B. Aod.enon , I.any B, Loc.lcett & Din announces that Don 1550. Birmingham, Alabama 35203. Phone Child, , Ka.v K. Ba l.tu, Heyward C. SieCdman. former Sttretary of State and (205) 322-0012. 322--0017. Hosch , DJ, and Brien Currie Fo ster Allomey Cenual for the State of Alabama. Patricia Cobb SlHrart . formerly with announce the iorm.'llion of Wa!Jton , Sta has become a member of the firm. Also.J. the firm of & Jordan, announces Scruggs bler , WeU., Anderson & Balos. Eliza Ba ny Ab1ton has become an associatt. the reloc.ilion of her office lo The World beth Champlin Bhhop , C. Ellis Both will practice in the firm's Mobile Arcade, Markel Street Scottsboro, Alabama Brazeal , Ill, Da vid B. Walaton , office loc.,ted at 401 Church Street, P.O. 35768. Phone (205) 259-3582. Sam uel M, HIii , Wllllam H. Pryor , Drawer 1129. 36633. Phone (2051 432 - Luter L. McInt yre announces the Jr. , Anne 8. Ston e, Vincent R, Led 3700. The Orm also has omces in Birming reloca.tion or his omce to 1110-B Shelton low , Ru11ell W, Adam i . and Emily h:tm and Uothan, Alabama and Jackson , Beach Road, Saraland, Alabama 36571. Si des Oo11d1 have joined as assoc iates. Mississippi. Phone (205) 679-8199. and Lawrence Dumas , Jr. wil l be of Pierce, Carr & Alford announces Marvin Nell Smith, Jr ., formerly an counsel to the firm. ornces are located al Andrew C. Clauaen has joined the firm. assistant United Stal es Allorney for the Financial Center, 505 20th Street North. Olnces ore located al 1110 Montlimar Northern District of Alabama, has been Suite 500. Birmingham. Alabama 35203. Drive. Mobile , Alabama 36609. Phone appointed as an assistan t United States Phone (205) 251-9600. (205) 344-5151. Attorney for the Eutem Dubiel of Beuley , Wlbon , Allen, M.tndelsobn , MJUer, Hamilton , Solder di Odom TenneHee , 103 West Summe r Street, Jemiaon 41 Jamu announces that J . announces the Qptning of a Birmingham Creenev,lle. Tennffltt 37743. Phone (615) Cole PorU1 . former law clerk lo Mont office, loc.ited at Colonial Bank Building. 63!Hi759. gomery County Circuit Judge Joseph D. 1928 First Avenue North, Suite 1501. P, Mltch McNab announces the open Phelps, ;md W. De.nit.I Mllu, DI. former Birminglwn. Alabama 35205. Phone !205) ing of his ornee al 300 Norlh Bell Street, law clerk to Alabama Supreme Court Jus 325- 1530. The firm also announces that Suite I, Dothan, Alabama. The mailing tice Henry B. Stegall, II, have become asso· Edgar C. Gentle, m will be the Birm address Is P.O. Box 5612, Dothan, Alabama elated with the firm. Olnces are located at ingham partner In reside nce a nd Jill 36302. Phone (205) 793-2629. 207 Montgome ry Stree t, 10th Floor, Bell G11nu1 has become associa ted wil h the Building, P.O. Box 4 160, Montgomery , Orm's Mobile office. Alabama 36103-4160, Phone (205) 269 - AMONG FIRMS W11llace K. Brown, Jr . and Richard 2343. M. Kemmer, Jr . nnnounce the formation Emond 41 Vino announces that Thomu R. EIHott, Jr. and J. Thomas of Brown & Kemmu . Offices are located Robert H. ford and Lelah Ann King Burteu announce the merger of their at 1323 Broad Street, P.O. Box 3556, have become auociates of the firm, with practices and the formation of London , Phenix City, Alabama 36868-3556. Phone omces al 1900 Daniel Bullding, P.O. 80lt Yanc«)I, Elllott & Bur,eu. Thomu S. (205) 298-2222. 10008. Birmingham, Alabama 35202-0008. Hale , (ormtrly with Cenlral Bancsharesof Kaufman , Roth(eder & Blitz Phone (205) 324-4000. the South. Inc .. has become associated announces a dulnge of the firm name lo DUlard & Pertuaon announces the with the firm. Other associates are I. KAufman & Rothftder , that Robert M, rolocalion of ll1 ofllces lo The Massey Ripon Britton , Jr . and Richard W. Rit c hey became a stockholder effective Building. 290 21st Str~ l North, Suite 600, Ltwll . Officu are located al 1230 Park January l , 1991, and that Marie N. Cham· Birmingham, Alabama 35203. Phone (205) Place Tower. 2001 Park Place, Birm ing blu1 has become associated with the firm. 251-2823. ham, Alnbama 35203. Phone (205) 251- Orrices are loca led at 2740 Zelda Road, Miller, Hamilton, Snider & Odom 2531. Third Floor, Montgomery, Alabama 36106. annou nce$ that Chrhtopher G. Hume, Ri chard J, Sto ck ham , Ul and Phone (205) 244-1111. 326 I November 1991 THE ALABAMALAWYER Elliott & Elli ott announces Lhal John Sununu. has joined the Washington. that Mlehul J. Brandt has joined the Edward L. McRighL, Jr . hat become a D.C.office or Balch & BlnCham. Rogers firm as partner. and William W. member or lhe firm. and the nnme or the is a graduate of the Universityof Alabama Brooke, vice-president and general coun• firm has been changed lo EUlott, Elliott School of Lai• and a 1985 admiuee lo the sci or Marberl Corporation. has become of & McRJgbt. O(Jices will remain at Third Alabnma S!Ate Bar. Balch & Bingham also counsel to the firm. The firm has changed Avenue, Blanto n Building, 2nd Floor , has officesi n Montgomery and Huntsville, its name to Wallace , Jord an , Ratliff , Jasper. Alnhama~502-0830. Phone (205) Alabama. Byers & Brand t. Orficesare located at 221-933.'I. The Pru dentia l Bank an d Tru st 2000 SouthBridge Parkway, Suite 525, Euo n Mitch ell announces that T. Company announces that Richa rd J . Birmingham. Alabama 35209. Phone Eric Ponder. former law derk to Judge Voltnllne, Jr. , formerly vice-president (205)870-0555. H. R,mdall Thomas, has become associated nnd associate counsel with Chase Home Woodall & Maddox announces that wlLh the firm. Offices arc located at Shelby Mortga~e Corporation, has becomeass oci Vlrglnla F. Holliday has becoine associ Medical Building. 644 Second Street NE, ated with the Prudential Bank as vice-pres ated with the firm. The firm's address is Suite 104, P.O. Box 989, Alal>Mter,Alaba ident and assistant general counsel. His 3821 Loma Road, Suite 101 Chase Com· ma 35007. Phone (205)663-9696. mailing address is The Prudential Bank meri:e Park, Birmingham, Alabama35244. Brannan & Guy announces Lhe and Tru.slCompany, TY.'O Concourse Park Phone (2051733-9455. removal or its offices lo 602 Soulh Hull way. Suite 500, AUanta, Ceorgia 30328- JllajJar Denabur g announces that SLreet, Montgomery. Alabama 36104. 6107. Phone (404) 551-6879. TtJTY M. Cromer has Joined the firm as Phone (205)2 64-8118. Blanlcen1hlp & Robln1on announces an associate. Offices are located at 2125 Cada M. Carter has withdrawn from lhal Dinah P. Rhod u has become a Morris Avenue, Birmingham, Alabama the Orm of Carter , Hall & Sherrer. member or the firm and lhe Orm name has 35203. Phone (205) 250-8400. Banu T. Smith has become a partner, been changed to Blan keo1hlp, Robin Ad.ams & Reese announces that Oby and the firm will now be known as Hall, '°" & Rhodes , with officesto remain al T. Rogers has become an MSOClateof the Sherrer & Smith, including members R. 229 East Side Square, Huntsville.Alabama firm. Officesare located in Mobile,Alaba Bruce Hall and Car y C. She rrer . 35801. Phone (205) 536-7474. ma and New Orleans and Balon Rouge, Officesare located al 316 N. Oates Street, Wallace, Brook & Byer, announces Louisiana. • P.O. Box 1748, Dothan. Alabama 36302. Phone (205) 793-3610. William C. Werdehoff and Ste ph · anle Winning WerdehorI announce lhe opening of their officesunder the name of Wtr dehoff & Werd eho ff. Offices are located at 303 Williams Avenue,S uite 512, LANDTECH86 I luntsvllle, Alabama 35801. Harrb , Evans, Berg & Morrla an Real Estate Settlement System nounces Lhe change of the firm name to ForLaser qr Matrix Printers Harrl1 , Evan , , Berl , Morri s &: Rolftn . with ol!icesto remain al Historic 2007 Building.2007 Third A\'enue North, • HUD 1 Auto matic Calculations Birmingham,Alabama 35203. Phone (205) • Checks & Escrow Accoun ting 328-2366. The firm also announces Lhat Susan Rogers has become a partner in • Word Pro cessor · Spell Check the Orm, and thal Lawren ce T. King , Policies & Commitment s former clerk Lofor mer Chier Juslice C.C. Deeds& 'Mortgages Torbert. Jr. and to Chief Justice E .C. • Data Base Repo rting (SQL) Hornsby, Jr ., has becomeMSOCiated ...;th • On Site Training Available the Orm. Cal)I K. Crace announces that Steven $1,495.00 J. Shaw has become a member of the (irm, and t he firm's name has been changed to Crace & Shaw. Offices are located al 100 Jefferson Street South, LAND TECH Suitt 300, Huntsville, Alabama 35801. CORPOR A T IO N (407) 833-0454 Phone(2051534-0491. Edward M, Rogon , Jr •. former deputy 303 Guara nty Building • 120 South Olive Avenue • West Palm Be.ich, Fl. 334Jll assist.int to President Bush and executive assistnnL Lo While House Chief of Staff THE ALABAMALAW YER November 1991/ 327 QuEsr10Ns& ANswERS__ WITH JUDGE FRANK JOHNSON By STEPHENJ. ROWE The following interview with Judge 1n lhe 1961 freedom riders case. determine what their rights were, and if Johnson was conducted on August 2, Q : you enjoined the riders from they had rights, to declare them and 1990. demonstratingbecause of the possibility enforce them. So I felt like. and it was of further violence. Also, in the 1969 my basic philosophy, and still is, that case of Scott v. Alabama State Boordof you cannot continue your disruption A lot has been made of lhe impor Educotio11,you refused lo over/um the and come to court and ask for relief. Q : lance of Winston County as a suspensionof .19stu dents for civil dis You're going to have to stop it and give major influenceon your character and obedience. In both cases,you , in effect, the court a reasonable opportu nity to judicial independence.How important ruled againstprotesters i11 civil disobe take the evidence, find out 1ohat the would.11ou say WinstonCount.I/ actually diencecases . legal questions are, and make a declara wasto your development? tion as to the rights of the various par •T hal is~·t true. That's a wrong ties. Now, civil disobedience can range I wouldn't th ink that Winston A• assumption. from making speeches on the corn er A : County. just because it's Winston ou ts ide a courthouse to disruptin g County, had anything to do with my My question is, what are your Highway80 from Selma to Montgomery development or anything that I've done Q : views011 the limits of civil disobe· or disrupt ing riding a Greyhound bus or anything I think. I think the fact that dience and when, if ever, is it justified from Birmingham to Montgomery or it was a small, lightly populated rural undert he law? from Montgomery to Mobile. I do not type area may have. In any rural area, believe-and never have-that parties like Winston County i.s. you get to know Well. let me tell you the basis for have a right to engage in civil disobedi people personally, and you learn early to A: the temporary injunct ions that ence that will have the effect of disrupt judge people on the basis of their indi were entered in the cases that you just ing other people's right lo live without vidual characteristics and not judge peo made reference to. There was violence. being disrupted when the courts are rea ple as members of a class or on the basis There was disruption in the communi sonably available. Now. you can apply of their economic status or their social ties, disruption in the state because of that concept to what went on in China status. In that regard, I think growing the freedom riders. Beca use of the and find it might not be applicable. But. up in Winston County had a lot to do attempted Selma march, a lawsuit was in Alabama it was.T he courts were here, with my development. filed. I didn't just step in linl these the federal courts were here, they were cases. You had a complaint filed asking available. and if you were ent itled to Do you have any particular fond for relief. If the disruption was continu relief. they'd give it to you. You don't Q : memoriesof growingup there? ing at that time, I fe lt that it wasn't fair have any right to engage in civil disobe to the court or fair to the part ies on dience that's disruptive of other people's •Of course, many, many. Most of either side to allow them to file a com lives under those circumstances. A• them have to do with working , plaint asking for relief and continue to plowing, cleaning up barns, cutting and disrupt to obtain it on their own. If they .One of your biographers wrote piling hay. A lot of them have to do with wanted relief from the court, they could Q• that one of your goals 1uasto the geography, the rivers and the water sit back and give the court a reasonable maintain Alabama's heritage and u11- falls. opportu nity to take the evidence and ique11essthrough your judicial deci- 328 / November1991 THEALABAMA LAWYER sions. I/oil"much of a a,nsideralion u,as wayjudges have to bi!. You cannot be a Attorney, and he's a great judge, but that and haUJsuccessful do you feel you judge if you·re going 10 decide cases that's a position that I don't think trere? w,lh the consideration in >'Ourmind "is Judges should Lakt. I never have. or this going lo be acceptableby the people course, Judge Rives obviously felt the !There) wasn't any consideration or is il notr That cannot be a consider same way.The Supreme Court is not set A : in my action as aJudge. You decide ation. That·s the reason I never have up to decide every case, every issue. lawsuits on the basis of the facts in a agreed thal electing slate judges was a They're sel up to give some guiding case. you decidethe legal issues that are good concept. And, ne.irly all your stale principles to the lower courts to apply properly presented, and as the control judges would agree that it's not a good specincal ly. That's what they did in ling and binding authority requires.You concept. I've talked to several of Brown and that's 1vh,1t we did in the bus don·t do it Just to make Alabama look them .... desegregationc.,se. better or keepIt from lookingworse. So. it was no consideration. None. ff you In lhl! Montgomery bus case. the What kind of stress did thl! reac took that Into consideration in an g: majori/11opinion by Judge Rwes Q : lion to thesl!deci;ions impose on attempt to make Alabamalook better or a you (!)(/tmdedthe Supreme Court's you 011dyour family? IVhorkind of dan keep it from lookingworse, then, if you Brown decision./11 u sense, new law u-os ger do gou think you wl!re irz? didn't like Alabama. you could take created.ll'hur is the prop.!rrole of lou:er action that would bedesigned to makeit rourts in taking this lgpe of action.> You don't ever know that. You look worse. One's not any worse than A : jusl speculate on iL It was a little the other insofar as deviatingfrom i-our The use of the word "extended" harder here on Montgnmerybecause we judicial authority and obligation. The A : and your phrase '"newlaw was cre had the Nontgomery Aduertiserand the premise in that question implies that I ated" are both wrong. Lo,~er court Ala/JamaJournal that were owned by a was Involved In politics, which is not judges in the federalsystem have a duty family referred to as the "Hudson fami true. Now,that doesn't me.in U1atdeci and an obligation lo followthe law ... . ly". They werevery reactionary as far as sions didn't have some political ramifi Supreme Court decisions in the federal the civil rights movement was con cations.They alwaysdo. But. that wasn't system are binding on all lower court cerned. They editoria lized on me at the purpose that I entered the findings judges. The court or appealsj udges. dis least once a week, very adversely and or the Injunctionor whateverit was that trict courts. magistrates,everyone in the very critical of me. That makes it hard was appropriatt in a given case. The federalJudiciary system. Judge Lynne-I er for your family. Il stirs up adverse image of Alabama had nothing to do have a lot of respect (or Judge Lynne reelings in people who don't think for with it. and It shouldn't have. in that case dissented because he said themselves. but just believe what they the Supreme Court hadn't specificalli• read in the paper. You don't ever know looking back, do you consider O\·erruledPlessu ,,. Ferguson. Well. Lhe what the danger is. The United States Q : yourself in lhu ·sos.'60s 011d"70s Supreme Court had in concept over Marshal service provided some protec to hare b11c11Judicfally liberal or co11- ruled Plessyv. Fi!Tguson.Thty had over tion at my home at night, particularly servaliN or something else? ruled any public Institution that dis when l was off In court. My mother's criminated on the basis of race. \Vhy house was bombed. She lived about six I figure myself to be judicially should we have sat back and let lhe blocks from where mywife and son and A : independent. Not liberal. Not con Montgomerybus system and the Alaba I lived. I don'L think Ltlere·sany ques servative.Nol radical. I decidedcases on ma bus system continue to discriminate tion bul thal her house was chosen for th e basi$ of what I thought binding on lhe basis of race when that concept that bombing either by error, thinking authority was, and if there wasn't any had been very definitivelydecided by the it was mine, because they were listed in binding authority. on the basis or my Supreme Co1ortof the United States? I the telephone book. or because they interpretation nf the law and the history think you're abandoning your duty ir found that there were marshals at my or the statute without regard to whether you say, well, I think you're right. but house, and they Just did that for intimi it wasgoing to be sociallyacceptable or I'm going to deny reliefand let >'OUfile a dating purposes. But you can't tell what socially unacceptable. And, that's the petition ror certiorari to the Supreme the dangers were.W e're in the same sit Court of the UnoledStates and let them uation now as far as this Judge Vance decide this specific ,ssue as to whether murder is concerned. All >'OUcan do is Stephen J. Rowe the concept aprlied in Brown is applica speculate. All the judges on this court, St-J-• ble to public t ransportalion. Judges ,Jl,QC)lfrna!ille, ,s • the actl\"eJudges, receiveddeath threat IWdtnl al tfl&lJrwe!'sity shouldn't do that. So. we didn't make letters mailed the 53me day that bomb ol Vci-g;r,,e;Rov.v $ tne new law. Some judges have a different was mailed, written on the same type tcN'Iof Mo0iltt a1tornny concept. Judge Lynne, for example. I Bon.-menI Rowe writer as the bomb was addressed with. tried cases before him when I was a So, you don't know.... It's worse on lawyer. I prosecuted when I was a U.S. some Judges than IL is on others. You THE AlABAMAl.AWYtm November1 991 / 329 don't ever get accwtomed or acclimat speak lo me for three or four months Would ycu consider the recogni ed to IL But, you can't let It slow you when we'd meet at our ca.rsafter he was A : tion of the necessity to study and down or stop you from working or car- reversed in one those cases. But, we work hard a trait ? That 's the most rying out )'Ourregular schedule because were good friends. And, he was a hero important one. You have a lot judges they've accomplished a substantial pa.rt because nothing deterred him from who crawl on the bench without study of their mission if you allow them lo do doing what he thought his job required ing their cases. A lot of lawyerswho go that. him to do. When I say job, I'm includ in the court room without knowing ing his oath of omce. what the controlling principles of the I know that you and Judge Rives law are or. even in Lrial, interviewing Q : sat on severalthr ee-judgepanels There is an old pictureof you and their wilne~ses and making an applica together, and t'r, one book l'ue read, Q: Couemor Wallacesland ing with tion of the lestimony to the controlling you're quotedas referringt o him as the your wiues in your law school days. principles or the law. You can't decide •real hero of the South". If Iha/ is an Whal was your relationship with him a case. you can't try a case, unless you accurate quote, whg do gou say Iha/ the11,and do vou ,wersee him now? know all that. You can't do it in an and what are some of your memoriesof intelligent and effective manner. So, JudgeRives? Oh, I haven't sun George Wallace the bottom line is hard work. I don't A since I was induc ted into the know any Job that )'OUcan do and do it Judge Rives was a great person. AlabamaAcadtmy or Honor and we had well and do it effectivelywithout hard A : We were personal friends. Our the ceremony up here in the capitol. He work. Whether you're a surgeon or an wives were friends. I had a tremendous came in after the cere_monyhad just internist or a trial lawyer or a trial respect for him. He's the only judge started. That's the last time I've seen judge or an appellate lawyer or appel who ever came lo this building who him and the first lime I'd seen him late judge. All of it's still work. beat me lo work In the morning. I got since he came to my house one night here abouL 7:00 and he'd already be and wanted me lo give him a short sen Who's !he bes/ trial lawyer you here most of the morn ings. He was tence. • much older lhat I was. Twenty-seven or Q• Tennessee Valley and pulling the these Dial boys over here for slavery; il down here at one of these white glove subsidized-by-the-federal-government was the last slavery case that was ever annual dances. I don't like lhal sort of TVAin there. And, 1took a strong posi prosecuted in the State of Alabama.. .. stuff. And, it's pretty hard to discrimi tion against IL.I thought il was a bad He came down for my investilure and nate against someone who d<>e$his own concepL Public enterprise was what this made a talk when I was sworn in, in discriminating. So, he was subjected to nation was founded on. He was for il. 1955. and he menti oned that case. more discrimination than I was. It hurt But, I guess, we kind of switched after Said. · 1 can tell you he was a good him more because he wasvery sensitive we got out of that. prosecutor because anybody who beats lo it. And, he still decided cases like he me in a courtroom is a damned good saw them in most instances. I dissented Youhad exte,uiueexperience as a prosecutor." So. you have to go to cat against him and Judge Varner in a cou Q: tn'a/ lawyerand as a trialjudge. egories. Your father 's !Ben Rowe( a ple of cases. They were both taken to and you have the reputation of hauing great, great civil lawyer. I doubt he'd the Supreme Court of the United States. been a great trial j udgl!. Whal qualities be a very good crim inal lawyer. He The Supreme Court adopted my dissent do you think make a good trialjudg e could be if he specialized in it but he and that got his attention. He wouldn't and also a good trial lawyer? hasn't. 330 I November1 99t THE ALABAMALAWYE R Whal about in Iha civil rights lot or moneyin Washington at a lawfi rm door, and it wasn't locked. He just Q : cases, the lawyersyou saw when that represents corporations like Sears, opened It and stuck his leg in and yelled you were on /he bench in the civil Roebuck. He was a great civil rights for me. He calls me ··old codger" and I rights casesJ bwyer. call him "old cooler". We're very close friends. And, when he yelled like that, You ha\'e a lawyer who was with What advice do gou hove for law there was no way I could beat that A: the Departmentof Justice. He went Q: students and young lawyersas to Dobermanto him, and he got back there in as an assistant attorney general in the what their ambitions and goals should and got him by the leg. So, I put the dog civilrights divisionduring lhe latter part be? out and gave Judge TjoOat some antibi· of the Eisenhower administration. He otic:s I had and doctored him, and we became the head or the civil rights divi Well. it's always good to have talked a few minutes. He said, "Why sion. His name is John Doar. He's one of A: ambitions and goals. but ambi· don't you let old Neb back in here; I the finest civil rights lawyers I've ever lions and goals won·t get it. You have want to get acquaintedwith him." So. I seen. Now.maybe it's not fair to private to have the determination and the per· brought him bac:kin on the leash and sat lawyersLo compare them to lawyerswho sistence to get qualified and get in a him on the couch with me. Nebsat there have u,e powerand the auU,orityand the position where you're eligible and qual· and lookedat him for ten or 15 minutes resources that the federal government ified to perform the position that your and then he relaxed. I let him get up, has. So.with privatelawyers, well, there's ambition tells you you want. That's the and he went over and smelled around severalof them. I appointed two lawyers route you have lo take. You can't just Judge TjoOat's feet and legs and laid to represent some pruoners m the state say I want to be a United States Federal down by him. I said, "Well, Jay, what do prison case. One of them was an ex-Jaw Judge and goof off in law school and )'OU think?" And he said, "Takethe leash clerk of mine named Robert Segall. He goof off in your law practice. You can't off?" I took the leash off, and he laid by still practiceshere. Theother one that I do it. That won't get It. I don't care him because we had let him in and he apooinled was a professornamed Taylor whal your political power Is. It still saw that he wasn't any danger. In a few at the University of AlabamaL.,w School. won't get It. minutes I sa id, "You've Just driven from They did a great job in that case.Truman Jacksonville,so why don't we go to the Hobbs. he's on the district bench. he was Mg last questionis: Is ii true that kitchen and fix a drink?" He said, "I'd a good lawyer,but he didn'l handle any Q : one of your dogs bi/ one of your like to have one," and we started to the civil rights cases.Chuc:k Morgan was a brotherson the bench,and if so. wasit a breakfast room. Judge TjoOat has a good civil rights lawyer.He began doing commMl on hisjudicial views? habit, when he wants to tell you some that in Birmingham and then he was thing, of putting his hand on your head, ostracized to Olepoint he felt like he had Judge Tjoflat is chief Judge now. nod he said, '"Hey, old codger. let me telI lo leavewhen he took a public position A .: Mewas just a circuit judge like I you." and. when he did, Neb got him in andrn;ide some speechesto some of those am now. At that time, he came up to the rear end. He had to go back to the social clubs in Birmingham against the Montgomeryto go fishing with me one antibiotic salve again. So, that's a true leaders.political and community leaders Saturday afternoon. He had been at our version or what happened.That's kind of in Birmingham,who let an atmosphere home before. Mywife and I were sitting ridiculous about the speculation that it get created that would allow people to in the den with Neb, our Doberman- had something to do with judicial phi· come in and bomb lhllt church and kill he thinks he owns that house and has a losophy. That Dobcrman's smart. but Lhoseb lack children. He m()Vedto Atlanta right to protect it. a duty. That's·b red in he's not that smart, and he's not inter· ... he's in privatepractice now makinga him. So, Judge Tjoflal came to Oleb ack esled in judicial philosophy. • Anomeys • Law Clerks • Paralegals• LegalSecretaries /lA. C. E. FREDERICK & ASSOCIATES Law Temps ~, _ _L_ EG_A_,_. _•N_'V_E_ST_1_G_A_To_R_s_,_,N_o_c_o_Ns_·u_1._T_A_l' THE ALABAMALAWYER November199 1 / 331 BUILDING ALABAMA'S COURTHOUSES ST. CLAIR COUNTY COUR THOUSES BySAMUELA. RUMORE, JR. The following continues a history of Alabama's county cour thouses /heir origins and some of the people who contributed to /heir growth. The Alabama Lawger plans to run one county's story in each issue of lhe mag azine. /( you have any photographs of early or present courthouses, please for ward them to: Samuel A. Rumore, Jr., Miglionico & Rum ore, 1230 Brown Marx Tower. Birmingh am, Alabama 35203. St. Clai r County t. Clair County was created by the Alabama Territorial Legislatu re on November ml20, 1818 wilh land take n SL Clair County Courth ouse from the northern part of Shelby Coun ty. The county was named for General When th e fort was approac hed by nents sought lo create the stale of Ohio Arthur St. Clair, although it is not clear 13riLi sh forces, SL Clair evacuated the from the territory. He declared that the why since St. Clair's career was check position without a fight, in apparen t congressional enabling act concerning ered at best. disrega rd of orders. Even though he Ohio was a nullity. President Jefferson Arthur St. Clair was born in Scolland was exonerated by a court martial in disagreed and removed him from office in 1736. He served as an officer in the 1778, he was not restored to command in !802. British Army and saw duty in Canada in the Colonial Army. St. Clair retired to his estate in west during the French and Indian War. He Afterth e war. St. Clair entered politics ern Pennsylvania. However. because he married a woman from Boston in 1760. a.nd served as a delegate to the Conti had lost money thro ugh loans to a niec e of the governor of Mas nental Congress.In 1787. he was named rriends, had co-signed notes that were sachusetts, and decided to stay in Amer president of that body. Later in 1787, he not paid, and was not reimbursed by ica. With an inherited fortune from his was appointed governor of the newly Congress for expenses that he incurred wife's family and his own military ser created Nortl1west Territory. He also as governor, St. Clair lost his entire for· vice claim's, he purchased over 4,000 served as military commander of lhe tune. He lived in poverty until his death acres in western Pennsylvania, becom region. St. Clair led an expedition that on August 31, 1818. Short ly after he ing the largest resident landowner in was surprised and defeated by an Indian died, the Alabama Legislature created that part of the state. force on November 4, 1791.A lthough he St. Clair County, possibly because some With the outbreak of the Revolution was again exonerated, this time by a of his former soldiers lived in that area. ary War, Sl. Clair supported his new congressio nal com mittee. St. Clair The first court in St. Clair County was country. He served under Washington resigned from the army. He continued held at the home and trading post of as a brigadier general in the ballles of to serve as governor of the territory. Alexander Brown. which was located Tren ton and Prin ceton. Jn 1777, he St. Clair objected to legislation lhat approximately four and one-half mlles was promoted to major general and would change the government in the south of present-day Ashville.Th e first ordered to defend Fort Ticonderoga. Northwest Territory. His political oppo- case. in which Brown himself was the 332/ November1 991 THEALAB1\i\1A LAWYER named defendant.was heard on Decem ber 7. 1818. Joel Chandler had sued AlexanderBrown ror SI 0,000 due to a trespass. but the CASe was quickly dis missedupon paymentor S13.56in court costs by derendant Brown. Brown's home was locatedin a place called·Old Town·. sometimes called "Cataula" because il was near Lo Indian Chier Cataula's village. In November 1822, Philip Coleman acquired 30 acres or land in St. Clair County from the United States Govern ment. He had the land platted into lots and set aside a centra l square for a cou rlhouse. The town was first called St. Clairsville.On October8, 1823,Cole man sold lhe 30 acres for SI 0,000to live commissionerswho were appointed to Pell City Coutth o.,. • erect a courthouseand jail in the coun ty. A log courthouse was constructed larger courthouse was needed.The leg M. Springfieldas a citiun of SL Clair." there in 1824.The name or SL Clairs islature passed an act on December26. It appears from the record that a leg ville wa.s soon changed to Ashville in 1843which authorized a special tax ror islator, H.J. Sprmgfield,resided on his honor of John Ash, one or the pioneer a new courthouse. In 1844, the con brother's farm. Springfield,,,as elected settlers of the area. struction on the present courthouse at from St. Clair Countybut the farm was Ash and his familyhad arrived in St. Ashville began. Littleton Yarbrough later discoveredto be over the county Clair Countyin 1818. They were travel constructed the building. His family line In Etowah County. So. instead of ing through 011t heir waywest w hen one ledger reveals that bricks for the con denying Springfieldh is seat because he of the children fell from their wagon, struction were handmade on the site, did not reside in the county from which fractured her skull and died. Ash decid and the laying of brick commencedon he was elected, the Legislatureofficially ed to stay In the area and homesteadthe October23. 1844.The courthouse con placed the Springfieldfarm in St. Clair land. He was active in local and state tained 155,6'10bricks which cost S250 County.Apparently, annexation law was politicsover the years until his death in per thousand. By June 4. 1845. the not o\'erly restrictiveduring the Recon 1873. courthouse was completed and pay struction Era in 1\labama. The log courthouse at Ashvillewas ments sell.ledin full. intended to be only a temporaryseat of This original brick courthouse was a Pell City justice and was constructedsouth or the two-storysquare building. It had a bell Pell City in southern St. Clair County town square. This log building and a tower and two large chimneys. It con was originally established in 1887.and p0ssiblesuccessor log structure served sisted or four omces downstairs and a named for Ceorge H. Pell or New York, the county for close lo 20 years. During large courtroom upstairs. In 1886, a the original promoter or the Pell City lhal period of lime. the court square two-story wingwas added to each end of Iron and l..andCompany. The area saw remained vacant and was used as a vil the building. F'urthera dditions and ren hard times followinglhe Panic or 1893. lage green and meetingplace. ovations have taken place over lhe but soon the town prospered with new 13y1840. it became apparent that a years. industries. The population grew. and, Also. the boundary line.sof St. Clair thus. a problem wascreated. County have changedover the years. In St. Clair County is roughly divided 1836, a portion of the county was into two sections by Backbone Moun· Samue l A. assigned to the new CherokeeCounty , tain. When the county was originally RumoN , Jr . Sam,o!AR.--e .Jr and a portion went to the new DeKalb i,stablishcd, very rew residents lived in -·~olihe County. In 1866.another section was the area that wouldbecome Pell City.As ~'YctNoc,e Dome_ .... used to create BaineCounty. later called the populationgrew, it became increas Etowah County. ingly apparent to the residents on the SdlaGlollzwHe\j!MW1'lyGI - On December 17. 1868, another southern side or Backbone Mountain _...... 1...-,0.. lhe change was made by a specific act that they needed more convenient N&bamaSta:a Bat 'S: which read; accessto their courthouse. If a trip was F""1llyI.aw Se THEALABA MA LAWYER November1991 / 333 Prepare closing ride to Ashville.A person called for jury 1964, and 1982. In 1964, the court documents in duty had to start two .or three days house was enlarged and repaired. 15 minutes on ahead ln order to assure timely arrival. Horace M. Weaver was architect and your PC To solve this problem, the Constitu Dawson Construction Company was tional Convention of 1901 passed an builder. In 1982, further additions and ordinance, Number 390, which estab alterations were completed. Poole, Computer-Generated lished a branch courthouse in St. Clair Pardue, Morrison and Associateswere Closing Documents & County, and divided the county into architects, and Ralph Williams Con Title Insurance Forms two judicial districts. Four towns vied struction Companywas contractor. $895 for the designation of branch county The court house at Ashville is an seat. They were Pell City, Eden, Coal exampleof the Creek Revivalsty le. The Let ProForm help you by City, and Riverside.A heated campaign front and rear entrances have a classic performing ALL calculations was waged by each town, but in the portico with four fluted Doriccolumns. related to the closing because election of January 6, 1902, Pell City The front pediment contains a town It automatically recalculates won by about a 600-votemajor ity. clock. Above the doorway is a gover when any changes are made . On January 22, 1902, the county pur nor's balcony. Programmed with standard ALTAtitle insurance policy chased a site for a courthouse in Pell In 1978.a car crashed into the court· forms and designed with the City. Probate Judge W.$. Forman bor house at Ashvilleand demolished the flexibilityto create your own rowed funds for the construction of the front steps. The granite for these steps forms using WordPerfect building. The total cost of the court had been quarried in Lithonia, Georgia merge capablllties. house and jail was $9.038.12.The archi over lOO years before. Coincidentally, • HUD-1Settlement forms tects for this building were W. Cham the U.S. Customs House in Gulfport, berlain and Company, who were paid • ALTATitle insurance forms: Mississippihad recently undergone a commitments and policies $321.84for their services.The contrac renovation. lts original steps '"ere quar • Disbursements Summary and tor was Robert P. Manley.The county ried from the same stone at approxi Balance Sheet accepted this building on March 13, mately the same time. These old steps • Buyer's Statement and 1903. had been removed in the renovation. Seller's Statement Two years after the construction of Carner Stone Companyof Birmingham • Checks the court house in Pell City and the was commissioned to repair the Ash ville courth ouse steps. The company • Substitute 1099S commencement of court sess ions there, a group in the northern part of was able to obtain U1eGulfport stone. • ANYdocuments you create and, thus, replace the historic steps al using WordPerfect: Deeds , the county took action to overturn the Mortgages. Affidavits. two-court system. In 1905, the Pell Ashvillew ith compatiblesteps having a Miscellaneous Lender Forms City Circuit Court was abolished. How history of their own. ever, in the next election for the l,egis Many attempts have been made over A complete system can include lat ure, two local candidates for the the years to do away with the dual Trust Accounting, nue Plant Indexing, and 1099 Reporting. House and Senate campaigned on a court houses in St. Clair County. A Order today and join over 500 platform to reins tate the Southern highway now crosses Backbone Moun satisfied customers nationwide. Judicial Division at Pell City. These tain, and the courthouses are less than Use ProForm for 30 days and ii candidates won their offices, and in 20 minutes apart. Ashvillere mains the not completely satisfied, 1907, a new local act re-establishedthe historic county seat while Pell City has SoltPro willgive you a lull two divisions and put the Pell City more businesses and population. Cer refund. ProForm is JBM-PC court back in business. tainly one courthouse would be more compatible and supports most laser and impact printers. The old courthouse served Pell City economical than two. but neither area for over 50 years, but with continued wishes to lose its courthouse. Unl ess To order. or for more growth, a new building became neces the voters of St. Clair County demand a information.call us today. sary. Martin J. Lideof Birmingham was change, two courthouses will probably architect for the new Pell City court remain in Lhe county well into the future. • So FTP RO house. R.P. Henderson and his son, Corporatio n Howell P. Henderson of Pell City, were contractors. The structure was built of P.O. Box31485 Raleigh. NC 27622 reinforcedconcrete and has an exterior veneer of limestone and granite. The The author thanks Circuit Judge H. (800)848-0143 • (919) 843-0143 building cost approximately $625,000 Edwin Holladay, retired presiding and was dedicatedMarch 3, 1956. judge of the 30th Judicial Circuit at The courthouse in Ashville was Pell City, for his help in oblaining expanded or remodeled in 191J, 1934, information for this article. 334 / November1 991 THl>ALABAMALAWYER HONOR ROLL &tuwn .4ugust 6 and No,:onbe-I. 199/ Jesse DavidEll"llngtr Kirby Se\ier tlw follou:ingattorm:11s mod~ p/t!dges to the CliffordEmo11d, Jr. DavidPerry Shepherd AlabamaStale &r &,i/dir,gFllnd. Their Joseph LanglordFloyd James L Shores, Jr. name.fwill be includedon o U' THE ALABA~lJ\LAWYER November199 11335 I OPPORTUNITIES The following programs haue been approvedby the AlabamaMandato ry Continuing legal Education Commissionfor CLE credit. For information regarding other availableapproved programs , contact Diane Weldon,admin istrative assistant for pro grams,al (205)269-1515, and a completeCLE calendar wi ll be mailed to you. New Rules of Professional Conduct Complying with the Americans NOVEMBER Huntsville, Marriott (video replay) with Disabilities Act Cumberland Institute for CLE Mobile 14 Thursday Credits:6.0 I Cost:$90 NationalBus iness Institute Trial Issues (205)870-2865 Credits:6 .0 I Cost: $108 Birmingham Fami).yLaw Litigation in Alabama (715) 835-8525 Alabama Bar Institute for CLE Mobile Credits: 6.0 NationalB usiness Institute 4 Wednesday (205) 348-6230 Credits:6.0 I Cost:SJ 08 New Alabama Rules of (715) 835-8525 Professiona l Conduct 14-15 Dothan(video rep lay) Federal Tax CUnic 22 Friday Alabama Bar Institute for CLE Tuscaloosa, Bryant ConferenceCenter Bankruptcy Credits: 12.0 University of Alabama Birmingham (205)348-6230 Credits:13.0 AlabamaBar Institute for CLE (205)348-9066 Credits: 6.0 Complying with the Americans (205)348-6230 with Disabilities Act 14-16 New Alabama Rules of Montgomery Vehicular Torts Professional Conduc t NationalBusiness Inst itute Atlanta, Ritz-Carlton Hotel Mobile Credits:6.0 I Cost:$108 Alabama Trial LawyersAssociation AlabamaBar Institute for CLE (715)835-8525 Credits:11.0 Credits: 12.0 (205) 262-4974 (205)348-6230 5-6 15 Friday Trial Practice Update Recent Development s Trial wues Huntsville, Hilton Part I&: D Montgomery Alabama Trial Lawyers Association Mobile (205)262 -4974 Alabama Bar Lnstitute for CLE CumberlandIns titute ror CLE Credits:6 .0 Alternative Dispute Resolution &: Credits:12.0 I Cost: S200 (205)348-6230 Negotiation (205) 870-2865 Birmingham Excellence in Advocacy CumberlandIn stitute for CLE Birmingham Credits: 6.0 I Cost: $125 6 Friday Cumberland Institute for CLE (205) 870-2865 Negotiation Credits:6.0 I Cost:$140 Birmingham in FamiJ.yLaw Litigation Alabama Alaban1a Bar Lnstitute for CLE (205) 870-2865 Montgomery Credits:6.0 National BusinessI nstitute 21 Thursday (205)348 -6230 New Alabama Rules of Credits: 6.0 I Cost:$ 108 Professional Conduct (715) 835-8525 Annual Trial Practice Montgomery Update AlabamaBar Institute for CLE DECEMBER Montgomery, Riverfront Inn Credits:12.0 Alabama Trial LawyersAssoc iation (205)348-6230 3 Tuesday (205)262-4974 Unlnsured/Underhuured Motorist New Alabam.a Rules of Coverage Professional Conduct Labor and Employment Law Huntsville, Marriott (videoreplay) Sheffield (video replay) Birmingham Cumberland Lnstitute for CLE Alabama Bar Institute for CLE CumberlandI nstitute for CLE Credits:3 . 0 I Cost:$90 Credits:1 2.0 Credits:6.0 I Cost:$ 125 (205) 870-2865 (205) 348-6230 (205)870-2865 336 / November1991 THE ALABAMALAWYER 7 Saturday 13 Friday Admlnltlratlon of the Estate in Unln1u1tdlllnduimured Motorist Alabama Update i\labama Coverag e Montgomery Birmingham BirminghamMdeo replay) AlabamaBar Institute for CLE NationalBusiness Institute CumberlandInstitute for CLE Credits:6.0 Credits:6.0 I Cost:SIOS Credits:3.0 I CO!lt:S90 (205)348-6230 (715) 835-8525 (2051870-2865 Estate Planninf 9 Monday Birmingham 18 Wednesday Bankruptc y ;\labamaBar Institute for CLE Timely IHuea In Tort Litigation Birmingham(video replay) Credils: 6.0 Tusc.iloosa(v ideo replay) CumberlandI nstitute for CLE (205)348-6230 Alabama Bar Institute for CLE (205)870-2865 Credits:6 .0 I Cost:$J 10 Genera l Practlce Seminar (205)348-62:lO 10 Tuesday Dothan,Ramada I nn Avoldlnf thc Legal Malpractice AlabamaTrial L.,wyersAssociation Admlnlat:ratlon of the Estate in Trap: A CLE Smiinar for (205)262-4974 Alabama Attorne ys Alabama Mobile, RiverviewPlaza Hotel Huntsville Uniruured/Undtrin1uttJI NattonalBusiness Institute AttorneysInsur.inc, Mutualof Jllotori,t Coveragt Alabama.Inc . Cn>dits:6.0 I CO!!t:SJ 08 Montgormry,Riverfront Inn (715)835-8525 Credits:3.0 I (half-dayseminar) CumberlandInstitute for CLE (2051980 -0009 Credits:3.0 I Cost:S90 (205)870-2865 11 Wednesday 19 Thur sday New Alabama Rulu of i\labama Updat, Real Estate Huntsville Profe 11lonal Cond.uct Birmingham AlabamaBar Institute for CLE 1-luntsvllle Cumberland Institute for CLE AlabamaB ar Institute for CLI~ Credits:6.0 Credits: 6.0I Cost: S 125 (205)348-623 0 Credits:1 2.0 (205)870-2865 (205)348-6230 Avoiding the Legal Malpractice i\dmlnlatratlon of the Estate in 19 -20 i\labama Trap: A CLE Sem.inar for Recent Developmenta I &: ll Montgomery Ala.b1una Attorneys Birmingham NationalBusiness Institute Birmingham.Boutwell Auditorium CumberlandInstitute for CLE Credits:6.0 I Cost:$108 AttorneysInsurance Mutual of Credits:12.0 I CO!lt:S200 Alabama.Inc. (7151835·8525 (205)870-2865 CrL'liits:6.5 1 {full-dayseminar) (205)980-0009 17 Tuesday New Alabama Rulu of 20 Fri day 1 2 Thursday l'l'Ofeulonal Conduct Alabama Update New Alabama Rules of TuscalOOS hen Frank M. Johnson, circuitcourt judges. Undoubtedly, he will be regardedby his Jr.. at the age or 37. tory as one of the dominant Judie~,!figures of the civil becamethe nation's rights era. a judge whoselegal rulings have fundamen· m youngest federal tally altered opportunities for women and minori judge in 1955,he waspoised to ties in education. employment.voting and other adjudicatesome or the fiercest forums of sociopolilicalexpression. ' Amongother and mostdramatic legal strug memorableachievements, he was the principal gles of the century. tu he architect in reforming Alabama's deteriorating now steps aw-dyfrom full· correctional institutions in the 1970s.' and he lime judicial service, he instituted desperatelyneeded improvements in leavesbeh ind a legacyof mental health care and treatment at state facili· civil and constilutlonal ties in Alabama.' Throughout his tenure on the ju risprudence that is bench, Judge Johnson has unceasingly personi unparalleled among fied his belief that ·'judicinlactivis m in the defense sitting federal of liberty is not a threat."' Yet, for true students of the law, an equallysig nificantcontribution to la"' and societyand equally memorable aspect of Judge Johnson's extraordi nary judicialcareer hasbeen his work in the admin- istration of criminalj ustice during his tenure with the Eleventh Circuit Court of Appealsand the former FiflhCircuit Court of Appeals. The developmentand historic implementationof civil rights during Lhe Inst several decades was attendedby intense political struggle and a grow ing national consciousnessabo ut the burdens of racial, economic and gender-based bias. How ever. unlike civil rights, there was no massive social movement to usher the evolution of criminal law and procedure into a more defensible relationship with societal problemsand issues. In the crim inal lawcontext. the __ judiciary.. 1'ht.... 9 ••• ,..,, EMPHASIS AND INTEGRITY has been, in many instances, the only institution with Lhe right to counsel musl be meaningful.As he stated in Tuckeru . aulhorlly and perspectiveto balance society's legitimate need /(cmp'. "la) vital corollary lo the Sixth Amendment'sguaran for order and safely with basic constitutional principles and tee to criminal defendantsof the right to assistanceof counsel human rights. Judge Johnson's rulings in the criminal area Is the requirement of olfecliue assistanceo f counsel." 1i1ckcr, revealnol only a recognitionof that role bul also a pioneering 724 l'.2d at 892. In addressingthe right to counsel in criminal visionof the /udiciary'sunique obligationsto achieveequality, cases. Judge Johnson hammeredout the parameters of effec• fairness and a heightenedduly of care in the criminaljustice tive advocacyin the criminal area with the kind of specificity realm. Thllt vision has had a significant impact on constitu that generatedmeaningful standards for practitioners. tional adjudicationof criminalmatters in this region. For example, in Mg/or v. Alabama,• the jurist held !hat a With scores or criminal opinionsto his credit, it is impossi lawyer's "failure to fi1ea brief in a nonfrivolousappeal falls ble to completelysurvey even a subset of JudgeJ ohnson's con below the standard of competency expected and required of tributionslo lhe criminal law area in this short article. Howev counsel in criminal ca.sesand therefore constitutes ineffective er, in both large and small ways, IL is easy to see that Judge assislllnce.''"A labama ap11cllale courts subsequenllyfollowed Johnson's work has had a defining Influenceon the evolution Judge Johnson's lead and now require that every lawyerr epre and interpretation of criminal law and procedure. senting an indigentcriminal defendant on direct appeal in this Frank Johnson's written criminal case opinions reveal a stale musl file an appellatebrief. Ex parle Dunn." Byrecogn iz jurist who rarely philosophized while making judicial pro ing that a constitutionalright that is not protectedor enforced nouncements.He rather preferredto rigorouslyapply constitu is of no value, Judge Johnson sought to ensure that lhe right tional law with precisionand detail to the facts of a particular to counsel for indigent defendants meaningfullyaided in an case. Yet,Judge Johnsonwas extremelya ttentive to the consti adversarialsystem or criminaljustice. lulional Idea that an adversarial system of criminal Justice Judge Johnson hasnoted that. "lo)ne of the most Important. serves the truth-finding Functionon ly when the institutional if not the most important, duties or the courts is to secure the coniponenls of Lhesystem perform their tasks carefully and integrity or the relationship or private citizens lo the govem conscientiously. Son,e of Judge Johnson's opinions on the right ment.''" In fulfilling this duty, he has alwaysrec ognized that a to co1onselan d the prosecutorial function provide a brief judge's constitutional pronouncementsmus t effect meaning glimpse or his contributions in the developmentof this con ful solutions. In the civil rights context,it was JudgeJohnson's sciousness. be_liefthat "(a(fter deciding that under the facts of a case the Constitutionmandates that the litig;mtsare entitled lo relief,a judge cannot dischargehis oath of officewithout seeing to it RIGHT TO COUNSEL that reliefis provided."" Perhapsthe single most significantdevelopment in criminal In reviewing the Implementationor the right lo counsel. procedure during the last 30 years was the United Stales Judge Johnson has bee_nequally mindful of enforcing mCJn Supreme Court's decision In Gideon v. Wainiurighl.1 which lngful legal assistance to poo1·people accused of criminal required that states provide la1~yers to poor people unable to offenses.Judge Johnson's opinions have challenged the crimi affordlegal representationin criminaln,atters. On the founda nal defensebar for the indigenlto recognize the importance of tion created by the Supreme Court's earlier decisionin f'ou:411 learningsubstantive criminal law,see e.g.. Harrisonv. Jones," u. Alabama.4Gideon offered all of the transformativepossibili the need to conduct a thorough defense investigationin lhe ties that the Court's major civil rights decisionsheralded. Yet. preparationof a criminal LTial,see e.g .. Futch u. D«gger"' and like Brownv. Board of Education' and other renownedconsti promptedlower courts and the bar to recognizethat the right tutional decisions,it was left to lower courts to give meaning lo defensecounsel must mean lhe right to a true advocateand and shape to the right to counsel. aid, see e.g., Cunninghamv . Zani." JudgeJohnson playeda signincant role in sculpting lhe pre cise meaningo f the right io counsel ln criminal cases. He has staled that "(l(ike good moral philosophy. good legal thinking PROSECUTORIAL FUNCTION Is not discovery;it is emphasis.'•As a circuit court judge he Beforetaki ng the bench in 1955, FrankJohnson served as the has applied this legal philosophyby "'emphasizing" that the U.S.Altomey for the NorthernDistrict of Alabama. He came to the judiciarywith an appreciationfor the burdensand benefits o( Bryan A. Stevenson representing lhe go\'ernmenl in criminal prosecutions.He BtyanA s- ...... ,.,...... ~ nonetheless insisted that an>'Oneserving as the representall~ Ho_,wasW111NSoulhemC...... of the state or federalg THEAu\BAMA LAWYER November1 991 / 339 EMPHASIS AND INTEGRI1 ' Y for the importance of the role prosecutors play in the criminal ANTIDISCRIMINATION LAW justice system. His legal opinions were particularly attentive to the expectationthat the Integrity of the prosecutorialfunction IN THE CRIMINAL JUSTICE not be compromisedby improper conduct. In reviewingprose CONTEXT rutorial misconductclaims. Judge Johmon would olten identi fy improper prosecutorial conduct even where it did not Some.thing must be said in even a partial review of Judge amount to reversible error." He clearly recogmzedthe correc Johnson's work in the criminal justice area about his persis tive role judges can play in improving the administration of tent efforts to limit the effectsof race. g'"der and class bias in criminaljustice . the administration of criminal justice. The evolution of He was particularly vigilant in regulating the emotional antidiscrimination law has come much more slowly in the excesses that so often compromisedconsti tutional authority in criminal justice context than in other are.aso f public adminis· the implementation of civil rights. •A prosecutor may not tralion. It is only in the last liveyears that the United Stale$ make an appeal lo the jury that is directed lo passion or preju Supreme Court has addressedin a meaningfulway racially dis dice. rather than to reason and a.n understanding of the law." criminatory use of peremptorychallenges in criminal proceed· Cunnm9ham 11. Zant!' "Reason and an underst.,nding of the ings.0 Less than 12 years ago, the Court was still grappling law" clearly have been the only me.ansby which Judge Johnson with the constitutionality of systematic schemes of underrep believes that the administration of criminal Justice can be con resenling women from juries." Judge Johnson's perspectiveo n stitutionally managed. His well-known remarks lo an all-white the enforcement of antidiscrimination law clearly inOuenced jury summoned lo try the case of Klansmen charged with vio these changes as well as the general development of equal pro· lating the civil rights of Viola Liuzzo by murdering her. are tection analysis in the criminal context. just one example or his belief that the "concrete embodiment Judge Johnson began addressing s)•slemalic race and gender of the Constitution" depends on Judges, juries and prosecutors discrimination in jury selection as a district court Judge In the to "make a proper and an unbiased ,,pplicallon of !the lawl In Middle District of Alabama early in his career on Lhe bench. any given instance.'~' Mitchell u. Johnso11,.. Penn u. Eubank;•• and White 11. Crook'' Judge Johnson's efforts on the appellate bench to frame the demonstrated his resolve to implement the demands of the prosecutorial function reOect his dominant concern thot crim equal protection clause lo achievea representative Jury system inal trials be conducted in a manner "In which th~ Jury reaches in Alabama that was representative of the entire community its verdict based only on the evidencesu bjected to the crucible and that possessed the "integrity" that constitutional norms of the adversarial process."W oodsu. Dugger." require. He continued, moreover. to recognize discriminatory practices in the administration or criminal Justice as an appel late judge by condemning grand jury forepersonexclusion on the basis of race or gender.'' overturning convictionsobta ined CLE REMINDER through discriminatory use of peremptorystri kes in jury selec· tion." and by addressing evidence of racially discriminatory sentencing schemes.• In the civil rights context, Judge Johnson's commitment to 1991 CLE Transcripts Will Be Mailed reliefand remedywas well understood, as he expl4lned; On Or About Judges are trained in the law. They are not penolo gists, psychiatrists. public administrators. or educa DECEMBER 1, 1991 tors. and in most cases.do not wish to assume such roles. Faced with defaults by government officials, however,a judge does not ha~oethe option of declaring that litigants ha,oerights without remedies.The judge A ll CLE Credits Must Be EarnedB y has no alternative but to take a more aclil'e role In formulating appropriaterelief. " DECEMBER 31,1991 At the Eleventh Circuit. Judge Johnson was sometimes unable to convince his colleaguesto recognize the applicabilit)' of anlidiscrimination demands in the criminal Justice context. All CLE TranscriptsMust Be ReceivedBy New rhet orical visions emerged during his ten ure at the Eleventh Circuit that not only cha Il enged his Idea about for JANUARY 31, 1992 mulating appropriate relief but even questioned the very iden tification of anlidiscrimination rights in the criminal justice system. 340 I November 1991 THE AI.ABAMAl.AWY ER EMPHASIS AND INTEGRITY For example, ln McC/eskey11. Kemp, the Eleventh Circuit .. ~. f)(l:OltMCn1$1cwy CII JuogeJOMsoo's t'lvolYl!rl'/IOn! in !ht ~mp4'ign to ac:hoeve Ofl90'! rt((lrffl In .rv.barnavvougn tedefal COM:JIU!(ln8' ~1.(11'1 was asked to review the denial of habeas relief to a Georgia 3. See ~~tv Slc:Wy.3:25F 51.ipp781( MD. Al4. 1971}.~3-4 4 F Supp387( M0 Ala 1972). ~11.Jbnom WyMJv Ade,naf, 503 F 2d 1305~50,Cir 191A) death row prisoner who argued that imposition of the death c ~. ·1n0etlll'l&eolJud,c,,a!Acti',',s.-n,'28Emo,yL,.J91,)J(l979) penalty in Georgia was racially biased in violation of the 6 372-US. 355( 1963) 6 287 Us. 4511932) InPowttll, lhe Cek.A1ecogn!:ea 1t1a1do!ond1mt1 ·;1ocd Indeadly petl d Eighth and Fourteenth amendments. The petitioner presented 1haillhi~· ar-4held Chai ·~ a capaatcase, wnereine ci.tond•nc II unabf• to emploV~ sof 1, it lhe dl.llyo( lhe court.Wl'lll171&1 requHJod ot tlOI,10 •J;ign CQl,,il'tMII and N I statistical evidence that defendants convicted of homicide in duty Is oot d1;c::l\;lrgeo bf an asSlgrvnel'II81 StJOh tlll'I& Cit undorMich drcumstances at to Georgia are four and a third times more likely to receive a peolid4' !ho gMno THE ALWAMA LAWYER November19 91/ 341 THE CRAF'IYSIDE OF JUDGE FRANK JOHNSON Ith JucllJ& Tiotlal Fishln9 w Demon strating his woodworking skills to Judge TJotlat 342 I November199 1 THE ALABAMALAWYER £,,Joying a different kind of *chew" with Jud9e Tjollat -- N~b.r 1991/ 34!! YOUNGLAWYERS ' SECTION By KEITHB. NORMAN,president Prof e11lo nalism now - why we can 't wait Judiciary should work in partnership to improve professional i n the public's eye, our profession is nol the shining and ism. Strong efforts of the American Bar Association and many noble calling that we would like to envision.Perhaps yo u have state and local bars to encourage greater professionalism experienced a legal jibe, dig or other Insult which has been among lawyersshould be redoubled.· eicpressedlo'erbally or in some written text about our profession. With this responsibilityin mind, the Youngl..aW),:rs· Division Indeed. law)oerjokes and other Insultsare legionand halo'ebeen of the ARAdewloptd a l..aw)oer'sPledge of Professionalismthat around for a long time. Before)'OU say that perhaps I am a little was appn,,.'edin 1990by the ABA's House of Delegatesto be sent too sensitive.let me state that in spite of my concern.I do appre, to all state and local bars. The pledgeconsists of 12 precepts lo ciate a good anecdote or witty episode about our profession. help combatthe increasingencroachment of unprofessionalcon- Howcwr,lhe disreputewhich lhe legalpro- duct, which although not necessarily fession has endured has been far more unethical, certainlyis not supp0scdt o twi scathing than any other. In many instances, fy the profession.T hese 12 precepts are sel il goes p.1Stthe paint o( gentle ribbing - It out In the adjoining box. is destructive. In fact, I feel that it has Abiding by this pledgewill not be easy. become deleteriousto our judicial process but if each of us, as a young lawyer. by diminishing respect for our Judicial makesa personal commitment to follow institutions. these precepts. I bcliew we can become Why does the image of lawyers suffer? the nucleus of a positi"e forcewithin our One reason is our role in the judicial pro state bar that can help instill these lmpor· cess.The secondreason is that we halo'elost tan t notions in future lawyers and a measure of civilitya nd collegiality in our encourage I hose now practicing to abide profession and failedt o transmit ethical and by them. We, the young lawyers of Alaba professionalvalues from one general.ionof ma. can help restore the luster to this professionalsto the next. greal professionwhich has grown fainter As an advocate, the la"'-yerargues one and fainter as the ideals of professional side of a dispute in a system built on the ism become clouded. I ask each young propositionthat if all propo5itionsare pre Keith B. Nonmin lawyer to make this commitment and sented aggressil.oelyand arguably . the truth accept the Lav.yer'sPledge of Profession and correc;tanswer will ewntually em~rge. alism. (See next page.) As uncomplicatedas the conceptmay be, someoften fail to grasp its profundity and refuse to acknowledgeits imp0rtance to the Youth Judicial Program judicial process. Indeed, those who quote Shakespeare's lines P or nearly ten years, the Youth Judicial Program has been sp0ken by Dick the Butcher in the secondpart of the play,Henry one o( the YLS'sprimary projects.T he program is designed to VI (acl (our, scene two), "The Orst thing we do, let's kill aU lhe giw high school students an opportunity lo learn, firsthand, lawyers; as an epithet, reOecttwo things. First. they haw not about lhe judicial systemby participat.ingin mocktrials. Young read the play. Second, they do not understand, as Dick lhe laW)'erswork with indi'l'idualteams to help teammembers pre Butcher did, that lav.l"e-TSare the bulwarko( social order. With pare lheir case for trial. Each year. teams represenhng high out lawyersto foster nonviolentdispute resolutionand to assure schools from many cities around the state travel to Mont the protection of individualfreedoms and liberties. an orderly gomeryto participatein a statewidemock trial competition. societyas we knO\,•it would disintegrate. Our democraticinstitu • Young Alabamalawyers give llteraii)• hundreds of hours of lionswou ld crumble,and we, as citizens, wouldb e subject to the their lime working with these high school students to prepare whims of the person wielding the biggest stick or a totalitarian their case for trial. Executive Committee member Charlie form of government suppressing freedom of expression and Anderson of Montgomery has chaired the Youth Judicial Pro other precious liberties. Anarchywou ld reign. Yet, the imageof gram for severalyears. Since his tenure as chair, the program lawyersstill suffers. has witnessedsteady growth among participatinghigh school In 1989, the Amtrican Bar Associalion·sTask Force on Out students and Alabama~'Oung lav.')'ers. The program is operated reachto the Publicsubmitted its report addressingthe concerns in cooperation with the MontgomeryYMCA which works to shared by many of the public's perception of lawyersand the supply an adult liaison for groupsfrom high sdlools or YMCAs legalsystem. One of the report's se'l'tralfindings and recommen wishing to participate.Charlie v.'Orksto ensure that each youth dationsaddressing the profession'simage problem was that: lawyerhas a young lawyeradvisor from that city. "Individuallawyers have an obligation to adhere to lhe high If you are interested in workingwith the Youtl1 Judicial Pro slllndards of lhe profession and conveyr espect for those stan gram or starting such a progrnm in your area, conta.cl Charlie dards in court, to client and the community. The bar and the Andersonat (205)83 2--4202. • 344 / November1 991 THEALABAMA U\\\IYER LAWYER'S PLEDGE OF PROFESSIONALISM 1 I will remember that the practice of law is first and 6. I will resolve matters expedi tiously and without foremost a profession, and I will subordinate busl· unnecessary expense. ness concerns to professionalism cor1cerns. 7. I will resolve disputes through negotiation when 2. 1 will encourage respect for the law and our legc1I ever possib le. system through my words and actiens. 8. I will keep my clients well-informed and involved 3. I will remember my responsibilities to serve as an in making the decisions that aflei;;t them. officer of the cou rt and protector of indiv idual rights. 9. I will coAtinue to expand my knowlee:lge of the law. 4 I will contribute time and resources to publrc ser 10. I will achieve ane:lmaintain proficieni;;y in my prac vise , public education, and chari table and pro tice. bona activities in my community. 11 I will be courteous to those with whom I come into 5. I will work with the other participants In the legal contact during the course of my work. system, includin@ judges, opposing counsel and 12. I will honor the spi rit and intent, as well as the those whose practices are different from mine to requirements. of the applicab le rules or code of make our legal system more access ible and professional cond uct for my jurisdiction . and will responsive. encourage others to do the same RIDING The Prepare simple or (()mp/ex wills in Alabama mimues wirhA11 omeys'Comp111er Net THE work software. 71,e sw te-specific Will(Li~rary programs<«k multiple•choice andfi/1- in-rhe·bltmk questions. tire,, compose CIRCUITS rai/ored docume111s which can be edit· Expeh-slstems ed with your IBM-compatible worrl To~mble processing software. Userf riendly, no Doc~ents COl1U1llllld s IQ lell rlJ. RUSSELL COUNTY ·111c \VillsL ibrary's ,,·Ide:va riety or provisions BAR ASSOCIATION includes: • Separ.11.cdi.spo:silit>nsor • Granting andexerc ise of • Marimldcd uc1ion trusts pcrsonolcffccis and «ally J)O\.lo'CfSor uppolntmcnl wilh QTIP provisions On July 26, 1991, the following • Ca.1.;h htque~t~ • Creditcq uivalcocyt rusts • Purchaseo rann uities officers were elected: • Other typesof dispositions. Tht program.~ also prepure: • Livingwill dcclamtions • Fnmily tree :.ffidnvh:,, • Exccuuon checkHSIS PRESIDENT • Powersof auorocy • Asset su11urulties • Clie.n1i nterview ques1ionn.a1rcs Susan Prather, Phenix City '!"heW ills Libr.tryiso n1yone of lS stute•spocirtcli brariesby ACN , including: Inter VivosTrusts:; Houst. Condo and Co1n·1R eal 1-::St.lte Sales Contracts; Office and S1ore Ltast Riders; Nt1 Ltascs: Limill'd PQrtne!rships;C om·J~ 'lor1,:age!YOte-ds orTrus t'; Business Sales; Se para· VICE-PRESIDENT do11A gn.-emencs: Sh11r,holder Ag-rttn1t:n1s: and n1ort. Patrick Loftin, Phenix City Onl y $200 ea ch , with fr ee upd ates for th e first year . SECRETARY-TREASURER Call Bernice Williamsa1800-221-29'n . Specify 5 'A"or31\"disk . John Byron Hollis , Pheni x City 62 \Vhi1cS i .. New York, NY 10013 E;ccelslor-Legal, Inc: (800) 211-2972FAX (212)431-511 1 THEALA BAMA LAWYER November 1991 / 345 OPINIONSOF THE GENERALCOUNSEL By MILTONl. MOSS,assistant general counsel Office sharing or partnership? n recent months, the Office with Rule7.1 (a) and st.11es: terhead, even It il contains a disclaimer of Ceneral Counsel has dis "(a) A lawyer shall not use a firm such as "An Associationor Independent cussed several situations in name, letterhead or other professional Practitioners."This holding conformst o D which lawyers arc holding designationthat violates Rule 7.1 . .. ." ethics opinions issued by several other themselves out as a law partners hip, Notably, Rule 7.5(d)of the ABAM odel jurisdictions. when, In fact, they are only shari ng Hules or Professional Conduct expressly Whal th is means is lawyers merely officespace In some fashion.T his prac addressesthis practice. sharing omce space and other overhead tice is a violationof the Rules of Profes "(d) Lawyersmay stale or imply that costs may not designate themselves as sional Conduct because it is misleading they practice In a purtnership or other ·smith & Jonu" or "l,aw Offices or to the public. org.mizationonly when that is the fact." Smith GtJones ", etc., since those titles Rule7.1 (a) states: WhileAlab.lma did not adopt a counter suggest the existenceo( a partnership in "A lawyershall not make or cause to part lo 7.5 (d) in Its Rulesof Professional the practice or law. Disclaimersare not be lllildea falseor misleadingcommuni Conduct. it would have been redundant sufficientlyunderstandable to the gen cation about the lawyeror the laW}-er's in viewof the dear applicationof 7.S(a). eral public lo cure the potentialfor mis services.A communication is false or The DisciplinaryCommission of the understanding. misleadingif it: AlabamaStale Bar issued a formalopin While non-associatedla1~rs may not (a) contains a material misrepresenta ion in February 1990which dealt with use the same letterheador advertisejoint tion of fact or law, or omits a fact neces this subject. Thal opinion (RO 90-14) ly, nothing precludes having a secretary sary to ma.ke the statement as a whole essentiallyheld that lawyerswho share answering the telephone, "Lawoffices." not materially misleading." off1ce space and even overhead costs This docsnot suggest the existence of a Rule 7.S(a) operates in conjunction may not 11st their names jointly on let- partnershipor profe.o;sional corporation.• 500Letterheads &500 Envelopes Easy Ordering &Unequalled Value SlyteE01A 111K111LIIIN 111111 IIIPI 500Lellemad$ and 500 Enve!opes. E>llelor.Mld!'(Raised Printed), on GIibert•Bone!. the nation's lea(!. Ingwa1ermarked, 25% WI LL I A M G . T AT£ cononcon tont,bf1ght white paper for legal AT1'0R.N'l:V AT LAVI l)folesslonals. 61 F.AST71TH sTUET C Sendme 500 Letterheadsand 500 Enve lopes, stylesLOI Aand EOl Aas NEW YORK, NEW YORK 10021 shownto the leh.Excel graved:OIn Black Ink.Enc losedIs mychec k for $73.50($67 .50 p lusS6.00 for guaranteed delivery and handll ng). C Sendm e your FREEstationery cat alogfor professionals. StyleLOIA Questions? Callus tolMreet-aoo-~-~. 8:30 am. to 4:30 p.m.. CST, Mondaythnlllgh Friday . Outfriendly , welltraln«I Customtr SeMce Repre S!111lltiveswillbe haPPV to a.ss,st you WI LLIA M G . T AT£ ATTORN.EY AT LAT Finn· GI £AST 77TH STREET N6W YOU , NEW YORK 10021 8Cllldin9/ Room / Sim: PHONE t2U ) SS8-5502 City: Sta1e: FAX 1212!SS?.QOl2 Aru CodeI Telephone (Daylime) : PleaseInclude your IMPRINT COPY on a sepmtesheet A shee101your current Tl>eAdvance Prlntlno Compa ny l.etteflleadwith all changes rna,1 ~------~346 / November1991 THE i\l.l\B/\MALA WYER THE REWARDSOF PROFESSIONALISM An interview with Harold G. Clarke, WHYI S PROFE SS IONALISM IMPORTANT? Chief Justice, Supreme Court of Georgia The whole idea of professionalism is doing those Lhings which are expected of a person who has a professional call Edi/or's note: Thisarli c/e originallya ppeared in lhe Jw1e 1990 issue of /he ing. A big parl of il, of course, is public Decoh1r-DeKolbBar Quarterlyp ublished by the Decatur-DeKalbB ar A~socia service. lf lawyers fail to meet the man lion in Georgia. It is reprin/ed, in purl, with !he permission of Iha/ publication. date of doing those things which the people expect of Lhemand fail in their mandate of doing those th ings which lhe system expects of Lhem. then there is a possibility that the exclusive fran WHAT IS PROFESSIONAL/SMt chise lo practice law may be taken from them. It only exists because people per· ceive it to be in their best interest. 1 think we have all struggledwith the ideaof comingup Has somethi ng gone wrong tha t with a definitionof professionalism.... It seems to me makes it necessaryto mandate studying professionalism? that the most troublesomething is distinguishingbetween I am not sure that lawyers are any worse today than they were 40 years ago professionalismon one hand and ethics on the other hand. when I firsl came to the bar. I am nol sure that lawyers were any worse then WhatI have felt from the very beginningis that ethics as than they were at the beginning of this century. I think we have alwaysh ad our we know them within the legalprofession really are not failings, and just because we are trying to do better does nol mean we are now ethicsas some philosophermight know. They are really doing worse than we did al an earlier more the rulesof lawyering-a code of professional time. Certainly, there are things that need to be improved. but the re have responsibility. ... Professionalismdiffers from legalethics always been things needing improve ment. The effort that we're making is one in the sense that ethics is a minim.umstandard required of that needs to be made earlier and certain ly wiUnee d to be made in the future. lawyers whileprofessionalism is a higherstandard expect Georgia is a leader in the profession alism movement. What brought about ed of all lawyers. Professionalismimposes no officialsanc Lhee mphasis on professionalism? I am proud thal we are seen as a lead tions.It offersno officialreward. Y et, sanctions and er in this connection. I think that there rewardsexist unofficially.Who fac es a greatersanction are good people in Lhe profession in this state who recognize lhal we can do than lost respect?liVho faces a greaterreward than the helter than we are doing, even though what we are doing is not all bad. I think satisfactionof doingright for right'sown sake? those folks in the practice and on the TH£ ALABAMA LAWYER November 1991/ 347 benchhave recognized lhal we ought to ture. you don't gain very often. Long lhe opponent rather than doing any makea determinedeffort lo continually e~perienceas a lawyerand ten yearsas a good for them. That's bad. That's not improve.I don't know that there is any judge havetaught me that onceyou ere· whatwe ought to do. one thing that was said to somebody ale a polarizationbetween you and the one morning that we need to be more opposingcounsel and the opposingpar· proressional; it is just a whole bunch of lies, the possibility of settlement and I r S BEfttS T11Ar COURTESY AND thinll$that led us to that conclusion. workinglhinll$ out just becomesmore c o,m oN S ENSE HAVE A Lo r TO and more difilcull.And, so by doingthis, D o W!TII P ROFESSIONAL/SN. you ortentimcsare performinga disser· We ought to apply our efforts as D OES P ROFESSIONALISM vice to your client becauseyou are not lawyersand Judgeswith commonsense , able to get your client's problemsolved. and there is nothing wrong with being An DRESS TIIE I SSUE OF Benjamin F'ranklin said something to courteous.I Ihink peoplecan differand IIAR DBAU L IT/OAT/ON? this effecl."All things you havethe righl can be zealousin their advocacyw ithout Yes, it does address the questions of to do are not best to be done".... All being obnoxiousand without being dis hardballllligalion, Rambo tactics and alI rights that you might be entitled lo courteousand uncivil.... It seemsto me of that sort o( thing. In my view,while ought not to be lll$isledon if it doesn't that the spirit orlhe calling to the l~w there are instanceswhere you may gain do any good for you or your client. pracliceneeds lo get more attention.We someadvantage by hardballtactics, over There are those who sometimes just ought not ... ignorethe letter of the law the long haul. in lookingat the big pie· Insist on it beca~ it causestrouble for and the letter or ethics.but we needalso giveattention to the spirit that's behind it. and maybethat ls 113rt of what profes· sionalismis. Maybeonce }'Ou\>egot the slavishadherence to all the rules - the standards and the code of professional responsibility- then the nextthing is to not only adhere to them technicallybut to try lo live up lo the reasons behind HELPING them in a more philosophicalway. I s THE EfltPIIASIS ON P ROFBS· SIONALIS/11AN EFF ORT TO NESSESht PROVE O UR P U8l/ C IMAGE? Our effortabout professionalismis not a publicrelations etTorL \\'e are not doing FOR this jUSIto get the praise of our fellow !humanbeing[. What we are reallylook ing for is ... the kind or satisfactionthat ~u gel for doing right for right's own sake.If you do It to get a better PRimage, then I think you are doomedlo failure For 50years attorneys, mortgage lenders, builders and from the beginning.So, my thinking is realtors have called on us to helpclose on 11,eir real estate that professionalismought to involve a commitmentto solvingproblems, a com· transactions -c ommercial or residenti,J . mitmenl lo public service, a commit· Some say it's because we're prompt.O thers say it's menl to the public interest and a com· because we're dependable. Most. however. say it's because mitmentto beinggood human beings. with 50years in the business. we know what we're doing. Ifyou're in need of title insurance in the next 50_vears HAS P usuc P ERCEPTION OF THE or so,call us. We'll be here. L EGAL P ROFESSION CHANGED? I am not sure"~ are that much worse than "'e 1,·ere,n another era. My next· ct] door neighbor is a doctor. and I like lo tell him the old joke that when lawyers Mlu lulppl Valley Title Insurance Company were writing the Declaration of lnde· Hom• Oni«: Jackson. ,\\i»issippi.Jl5 Tomhigl><·•·P.O. l)r,wcr 2~28 pendenceand the Constitution.doctors I ,601.969,0~2i were pulling leeches 0 11 GeorgeWash · ington to solve his medical problems. And,or course, the doctor doesn't like 348 / November199 1 n1~: ALABAMALAWYER for me to tell those stories and, of nal thing than anything else .. . I think fession, and only after thoughtful mem course, I get a laugh out of il But the professionalism can blossom in any kind bers of the profession conclu de that thing that concerns me now is... that of law office.Certain ly, if you are talking these are the kinds of regulations that was 200 years ago, and what are people about many, many hours of pro bono they ought to impose upon themselves. going to be saying 200 years from now? work, maybe a large Jaw firm 1vilh a lot Self-regulation is another thing that is Are they going to be saying that when of backup support can afford to do more at risk once you lose your professional doctors were finding a cure for cancer of that. But my experience of having character istics. Once you become just and a cure for AIDSa nd other things of been in a small law firm in a small town part of the commer cial mainstrea m, that sort, that lawyers spent their time is that you do an awful lot of public ser then I don't th ink you are entitled to propounding unnecessary interrogato vice in that environment. It's a different self-regu lation. F'rom that point on, ries, filing frivo lous motio ns and sort of pro bono work because you do your regu lation comes from without padding their timesheets? Where would what comes in the door, and somtimes rather than from within. we have been 200 years ago if Thomas you recognize that folks can't pay very Jefferson in 1776 had been back at Mon much, but you do it anywaybecause that EARLIER Y ou M ENTIONED THE ticello propounding interrogatories,or if is what the community demands of you. in 1787 James Madison had stayed home POSSIBLE L oss OF THE L EGAL and prepared various motions rather FRANCHISE , I s EXTENSWE R EG· I s STRAIGHT H OURLYBILLING than going on to be the architect of the ULATION AN EFFORT TO A VOID CONSISTENT WITH Constitution? What I hope for the pro THE L oss OF THE FRANCHISE? fession is that we'll do those things nec PROFESSIONAL/Slit ? That's right, we have the exclusive essary to be respo11sible members of the A lot of people say that one of the franchise lo practice law. When I say we, community, to make a good living for greatest problems with professionalism I am speaking of those in the legal pro ourselves and at the same time recog in the present day law practice is the fession. There is nothing in the Consti nize that the legal profession is a service business of billing hours. Thal may be tution that assures thal franchise . .It 's effort. Not just service in the sense that so. Maybe it would be good if we could only there because the people perceive it it doesn't produce a concrete product, go back to what J was taught years ago to be in their interest And, once people but in the sense that it's got to serve U1e in the old "four factor billing process". look at it and say, "No, it's not in my interests of society. What you would do is bill based on four interest," then we could just wake up factors: fiTSt, the results achieved, then one morning and see the franchise gone. the time spent. then the complexity of So, if you want to look at it from a pure HA S LAW BECOME Too M UCH the problem and, finally, the ability of OF A BUSINESS AND Too LI TTLE ly selfish point of view, professionalism the client to pay. That was a nice way to is in the intere st of the public, but A PR OFESSION? do business in a different era. I think, lawyers better believe it's in their own Law may be too much business today. however,that we have come so far down self-interest as well, if they want lo ll may be. however, that the economic the road that the idea of saying we are maintain the franchise to practice and rea.litiesof tbe 1990sand coming 2000s going to junk the bill ing systems of the right of self-regulation. require th is to be so. What I think today is an unrealistic proposition. The lawyers who are interested in profession· whole idea of billing by the hour or by alism need to do is to find a way to acco lime is one that may go beyond profes. W HAT IS YOUR GOAL FOR modate the economic realities and eco sionalism ... .The client doesn't care PR OFESSIONALISM? nomic demands of modern law practice whether you are spending two hours or I think that the st rongest goal that with the good solid professionalismatti· four hours. what the client cares about anyone could have would be a goal of tudes that involveall the things we have is result achieved. So, I really think that awakening to the responsibilities that go been talking about. There certainly must maybe th e marke tplace is going to with the profession, the duties that go be ways that a lawyercan keep his or her answer those problems down the road. with it, and the good feeling of satisfac head above the economic waters and still We ICeorgial now have mandatory tion that comes from fulfilling those perform public service. I just don't think CLE, specifically in ethics, trial practice re.sponsibilities and duties so that when that making a good living and acting as a and now professionalism. JOLTA is you get through a week's practice you professionalare incompatible factors. mandatory. ls this degree of regulation can not only look at the bottom line on Are there different standards or expec required because we as individuals have your P & L statement and say that it was tations of professionalism depending on not done sufficiently well? a good week, but you can look al your where and with whom one practices? The impo rt ant th ing we need to personal activity P & L statement and Who can be a professional. who can't remember is that we are unique among say that I did the right thing during that be a professional - whether it's a matter all other regulated activities in this state week and I solved some problems and I of a sole practitioner or thousand-mem in the sense that we are self-regulated. did right for my client and I did right for ber law firm, or somewhere in between, That is vitally importa nt. We are not the system as an officer of the court and a big city or a little city - I don't think subject to the !Georgia) regulation by, I did right for the public as one who is that matters. I think that really when for instance, the state legislature. Our called to a profession which has got to you boil it down, it's more of an attitudi- regulation comes from within the pro- serve the public interest. • THE ALo\BAMALAWYER November199 1 / 349 1991-92 COMMITTEESAND TASK FORCES Committee on Access to Ltah 0. Taylor.Birmingham MichaelD. \ Vatel'$. lt1on1gomery Legal Services H. \Villiam \Va,$den,Montgon1tl) ' WilliamC. Cam, 111,llothan 1 CHAIRPF.RSON:Kenneth W. Battles,Birmingham John \\ • Han.trove, Birmingham l.atl)' H. Kt:cntr,Cadi;dc.n VICE-CHAIRPERSON:F. l.uke Coley, Mobil< Ra)'0. Noojin, Jr., Birmingham L VastineSt2lbler. Jr .• Birmingham BOARDOF BARCOMM ISSIONERSI. IAISON: D 350 I November 1991 THE ALABAMA LAWYER Hon. C. L)'ttwoodS1nlllt liunuvlllt BOARDOF BAIi COMMISSIONERS: STAFFLIAISONS: Hoo \\"1ll11mA. JKi..on. Bttmlngham \1'1lli>mB. ~14llh•ws.Sr, Ourk Keith0. Normon1ndRobtrt W.Noms Hon.JO< l'hdp,. M"'~IY STAff LIAISON:Rt!:!n>ld T . llamncr MEMBERS: II'. M1