Theawyer Alabama

MAY 1984

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A comp lete handboo k on the subject f()r 1rial lnw)"crs. II offe rs the legal profess ion a tx,sic knowledge of1hcgc ncra l prac tice of dentis try, its procedures. and ils s pc.ciullics. In a highly tec hnical and srx,einli1.cd :lt cu of t he law­ indccd. cri1ical- 1his mcl iculousfy p rcp; arcd work ili ncccs· sa ry 10 practi1ioncrs concer ned with postco nviction rem· Seamen's Damages for cdics nnd relief. Death and Injury Social Security Disability Claims­ By Jac k B. Hood and Practice and Procedure Benjamin A . Hard y, Jr. By Don C. Keenan, Charles R. Ashman with Patricia A. Lucas, Contributing Editor

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An in..,aluublc wqrk whic h prov ides the pn tctitfoncr with an up­ T his treatise is importan t 10 the experienced trial lawyer to-dntc ha.ndboo k in thiscontinua llycha.nging area orthe law. 11 prcsen1s han d ling liab ility i11jury actio 1ts, the novice lawyer .starling the basic law of damages in seame n's pcrs()nal injury and deat h cases h is ow n pra ct ice t1nd also 10 the ir paraleg als. in a vecyco ncise and thoro ugh manner.

ORDER FORM Ple.asc enter my order for lhe publica 1ion liMcd below. includin g :\ny Visa/ ~ia.s:terCharge ------Exp. Da1c _J_J __ s upplements, revisio ns. replac,cmcnt IX\gcs. revise d vo lume s. new o.ddition:11vo lumes and rclntcd material. I understan d I may at nny time -B ill Perso nal Accoun1__ 8ill Firm Acco unt -- Check Enc.losed ca m;cl my order for I he s:upplcmc nls. revisions.e tc .• by so inforn,ing The Acco unt ti ______Firm ------Har rison Company in writin; . Cus tome rs on ~1u1omatic subsc riplion will co ntinuc1orece ive prefercnt1alsubscribcl' prices. Prices subjec t 10 change Add ress------without notic:t. On Cas h Sales the re i s no handli ng charge . and Th e Ci 1y/S1a1c/Zip ______Harrison Co mpany will p:11y pos1agc or freighL Handling, charges plus Date ______Signa ture postage or freig ht will be added on AL..L OTH J~R SA LES , ------83- Y6

1111':}a[ IIANRISON COMPANY,l' UH!.!SHERS u 10 c,,...... ,,..ir::r.111: • N,.,T('~•>~.Gt. ,,1:,_. J00i1 C404l 4'17.91.SO THEMAY1984 l\ib l~cd 8imon1lllyby Tht Al:lb.llfUIS 1att" Bar r.o.Roi( 41f.& Mon1gom~ . Al. :ttHOI r~(2«Hzm.1!i15 Nober1A . Huffaker- Editor Je:n NO\\•cll- Mi:magingEditor BOARD OF EDITOR S PhHhp E. Adams. Jr., Opclik.3• Braxton W. A5hc. Tuscumbia • James A.Ryram, Monlgome.ry• Robtrt P. Ot,nni.ston.Aiobile • Vant.clla ·1>cnn Dumm. MQnl• gom.cry• PaLric;k 1-1. Craveii..Jr•• Uuntsvtllc • Robert B. HnrwclOd,Jr•• Tu sc.:1loc~a • RobertR. Kr.-cke,Bir · mingham • Champ L)'On!I',Jr .. Mobile.• Wi11inmO . Mcltoo.Evergreen • L. Dre:wk«ldm. Hi.rmingh:i.m• Carol Ann Smith. Bitrningham • J. M;uic \Vhite. nir• mingham • Steve n L. \Yisr, 1'u!t(.aloosa • J.O . Sentell, e-i·oHicio.Monlgomcry OFFI

\Vilham R. H:11rston,Jr .. Birmmgh.,m • PresJdcnL \Valter R. Byal'$.~ton1~'0n'\t.'1")' • Pn .-sident-(:i,cct Richard S. Manley. Demopolis• VicePresiden1 Rcginakl 1'. 1-lnmnc:r. ~1onLgomery • $ectt1:iry ixit,e'r 1 BOARD OF COMMISSIONERS Proving the Fee 1st Circuit. Ed"'-'3rd P, 1'umc r,Jr., Cha1om • 2nd Ctr· -pg . 127 cuil. P. Richard Hartlt!)', Cremvil~ • 3rd Cin:ui1,J. 4 Gorman Houston.Jr., Eufaula • •l1hCircult, Harry\V, 2 Bycontract and sta tutes the prevail· Gambk!.,Jr.. Selma • 51h Circuit, frtd J), Gmy. Tu!>· 3 kegee • 6th Circuit, \Valter P. Ctownt>\'er.Tusca!oo­ ing party is frequently allowed to re, s. • 7th Circuit. H. Wayne Lovt, Annistol'I • 8th Cir, cuit,RabenStrnub.Pel-::11ur • 9d1Circui1.W illl.1mO. ady.Entcrprist • 13th Circuit. lkn Ji. Harris, Jr .. Mobile• 14th Circuit, Robert T. \Vilson. Sr .. Jas· pc-r• 15th Circuit.J ohn B. Scoll,Jr.. Montgomery • 16th Circuit. Ludger 0. Marti n, Gadsden• 17th Cir· cuit, Richard S. Mon'ey, Demopolis • 18th Circuit, 8 9 Oliver P. Mead. Columbi:l,,a • 191hCirc uil, Ttd T:.y. lor. Pr:utvillc • 20th CircuiL,\Vadc Baxky. Dothan • lls -iCircuit. BrooxG . G,11rret1,Brewton • 22nd Cir-­ tuit. Harold Albritton, Andalusia • 23rd Circuil.Cnr)' On the Cover C. lluckaby, tlun1sY11le• 2,11h Circuit, I.J·:. Gos.1. Vernon • 25th Circuit, Nelson Vinson. Hamihon • Pictured in connection with this 26th Cin;uit, BowenH Bruse.II. Phenix C~1y• 27th Circuit, Ch.,dts R. Harte. Jr., Albcrt\·1llt' • 28th Cir­ spei;ial issue focusi ng on "old !mild· t u11.J, Don Foster, Folc)' • 29th Circuil, HucJM . Love, ings for modern uses' ' are several his­ Tallad<'ga• 301h Circuit, Charle, I~. Robinson. Pen City • 31stCircuh ,Corm11nR.Jones.Stw:ffitSd• 32nd toric structures being used as law of· Circuil.John O:ividKn igJu, Cullm:11,• 3.'Jrd Circ:uit, fices. On the cover are the offices of: \-\'illiam 8. Matthews , Oicork • J.llh Circuit. H. Neil Taylor. Sr .• Russellville • 351h Clrcu11, Edwin C. l) Russell L. Irby - Eufaula l'age.Jr .. EVfrgreen • 361h Circuit. A. Phili~,Rt•1ch II. 2) Smith and Smith - Ph e nix City l\1ouhon • 371h Circuit, Phillip F... Adaiu, Jr .. Opeli, k.a • 38th Cir0tit. John F. P-roctor,Sro11 .11bon>• 39th 3) Stout & Roebuck - Mobile Cin:,Jil. Willi3m Bruce Sherrill. Athc:ns 4) Kracke, Woodward & Thompson - Birmingham GENERAL INFORMATIO N 5) Fulford. Pope & Natter -

The At.bnm.11 l..awy t•r , lht-11f(i(:QlpubhatlonuflhC'Ab\gm a Birmingham S1.att BAr. I, µubll,Jitd ai1 timc11a ~en-r1n!he mcm1lu11( J11nu , 6) Drinkard & Sherling - Mobile ary. Marth, Mar.Ju.ly, Stpttmbr-r ~nd NQ\~lfl . Vicw11~nd Midyear Conference conth11don•t~ rn •rildd. btrdn on thOSt"of th!! 1u· 7) Rushton, Stakely, Johnsto n & 1l1cn., nu1 ~mnty 100fotof 1~ Boord of Ed!ton. olft

122 May 1984 ISSUE IN BRIEF

Upco1ning May 18- 19 YLS Annual Seminar Sandestin. Florida

July 12- 14 Alabama State Bar Convention Mobile, Alabama

August 2-9 ABAAnnual Meeting The Dec ision Mad e Chicago, Illinois - pg. 135 l~1wyergroupswishj ngto have Congratulations 10Walt er C. Ward. meetings listed in this column the winn~r of Tlte A /11bom111A1uyer should contact lhe AlabamaStale Short Story Cont(!St. His enLry, Tltc Bnr. Decision,based on a Chambers County trial, is publislwd inside.

Rehab ilitati on Proj ec ts Maki ng T ies with Pa st ReguJar Feature s. -pg.165 Presidcnt"s Page ...... 124 Executive DirecLOr·s Renova!io n of historic structures for Report...... 125 law office use has become an inc;reas· About Members. Among ingly l)()pular means of preserving our Firms ...... 138 architectu ral heritage. There are sig­ Riding the Circuits ...... 140 nificant tax and financing benefits l..egislativc Wrap-Up...... 143 available to the allorney or firm who Recent Decisions ...... 145 undertake such projects. CLE Opportunities...... 150 CLE News ...... 152 Rejec tion of Collecti ve Bar Bnc(s ...... 160 Bargaini ng Agr ee ments Commiitee Work ...... •.. ... 162 -p g.154 General Counsel Opinions ...... 172 The Unit~,dStates Supreme Court Oisciplinarr Report ...... 174 ruled in In Re Bildjsco lha1 a bank· The Final Judgment ...... 176 rup1cy court may permit rejection ofa Classifieds ...... 179 collective bargaining agreement. This decision may foreshadow future legis­ lative or judicial action in the bank­ ruptcy arena.

1'hrAln6a111n l.au~l·r, 123 GJ>resideqt's GJ>age

HAIRSTON

ne of the many functions of Stewart and Yarbrough opened their true as 10 membership needs. Waller Thr AlabamaU/111)'1!1'is Lokeep omces for our enjoyment. These are Byars is busy putting together an excit­ 0 us informed about things of in­ some offices! I bet these firms have ing program for next year. He will cm· terest to Alabama lawyers. The only trouble geuing their lawyers to leave phasizc every member participalion. function of the President's Page, the such enjoyable surroundings over the You can help him with your sugge&· Executive Director's Report and lhe weekends. If you havcn'l visited these Lions. Keep Lhosc cards and letters MCLE din.x:tor's report is to inform offices you shou Id try and do so the t'Oming. about aclivi1ics, problems and coming next cimc you are in Montgomery. In response to a continuing concern events. IL is the only way I know lo They ore something. by the Birmingham Bar Associationwe communiGllCwith some 7,000lawyers. Our next membership meeting is in have appointed a commiuee on gov· I hope you will lake time to give these Mobile, July 12lh through July 14th. ernrnent under Lhc chairmanship of articles some time. The program is shaping up as a blue Commissioner Gary Huckaby. This It's a Iiitie late. but it is the first time ribbon affair. There will be several c:ommittecwill look into all aspects of I have had the opportunity to publicly changes in the format that l think you Bar administration including the size thank Dexter Hobbs of Montgomery. and your spousewill enjoy. and makeup of the Boord of Bar Com­ theenlireCommi11ceonthe Mid-Winter I thank each one or you whoac:cepted miss,oncrs, the number of lawyers re­ Conference.the folks at Bar Headquar­ the invitation to comment on 1heMCI..E presented by each commissioner. and ters. the members of the various com­ program. You made some e.~cellent the way we nominate and elect our mittees. and all you wonderful people suggcsl ions.The Commissionwill take preside111.This is a follow-u1> on the for the smashing success of the Mid, up each suggestion in a continuing ef· work of a likecomm ittee chairmanned yearConfcrenccin March. This revival fort to make lhe program one that fits by Harold I lerringin the mid-seventies. of an old custnm was on a trial basis. the needs of Lhc Bar. By lhe time this gets to you we will From the commcnlS I have received. haveacquired ap11roximately a hundred the Bcl. One 1hing I learned from the MCLE bility is left in America? CJ Rushton. Stakely,Joh nston and Gar· .urvey- we would have a belier Bar if reu: Robisonand Belser;Webb. Crump, we had some way 10 get more input ton 11ndMcGregor: an d Jones, Murray. from the members. This is especially William B. Hairston, Jr.

12,1 Moy 1984 ~xecutive GJ>irector 's ~port

llAMNER

Mid ycar Conference be frce iodine in the res1aurantof your Card is av;ulableby sending us a copy awyers from 1hroughoul the choiceor l)Gmakeof some of the hospi­ of lht.' 1983-84professional license. tality planned by members of the Mo­ ~late. and some AlabamaStaie New Codes A,•ailab le Bar members residingoutside of bile Bar. A new convention feature, a L NightcapParty wilh desserts and alter The Codeor Professional Responsi· Alabama,parlici1X1led in the reinslilu· lion of the "Mid-Winter Meeting'"on dinner drinks, will begin al 9:30 p.m. bilily and Rules of Oisci11li11ary En· March9,JO. 198'1.Two hundred thirty· and will fcatu,•c, by popular requesl. forcement have been reprinted with all eighL(.!38) lawyers registered lor this the return t>fMac Frampton. amendments through January 1984. year's meeting. The conference plan· Thursd,1y will be aw CLE day ith They arc available for $1.75 each - ning committc'Cdid a ~uperb job. I've CBS Legal Correspondent Fred Gra­ plus postnge if mailed ($1.05 Third never received more complimenlary ham featured at the Bench and Bar Class, $ Ul6 First Class). Please ad­ Luncheon.The MembershipRccep1ion dress your request~ for copies lD Gale ~llers and commen1sfrom an annual meeting. will be informal,un the RiverviewVer­ Skinner. anda, with entertainment by the popu· From a p.?rsonal standpoint. the Trav el Program s commentsfollowing our committee re­ lar "Three on a String." The Young pons were the most rewarding. I en· LawyersSectHJn will party on the USS The Board o( Commissioners has joyed watching the exci1cmentof Bar Alabama with music by 1he '"Cruise­ approvedfive 1ravelt>rferings for 1985. members as they acknowledged the mat1cs... One sure to be ))O(>ular is a two-week splendid work of our committees. It is A champ:1gncbrunch will starl off trip to Ireland, Scotlandand England. too often SllidlhaL our committeesare Saturday the l~i h, followed by our The real plus of Lhis trip is that the the lifebloodo( the Bar but, I fear, not business session and principal address England portion will take placeduring truly believi'scntaL this meeting know we are in a lily. vention there. These will be promoted excellenth ealth and that the prognosis Remember the dmes - July 12-14. by INTRAV. for l 985 is bright The place - 1he Riverview Plaza, Mo­ lncidcn1a1ly, your Bar incurs no ex· bile.Alabama. M otel reservations must pense 111promol ing LheseLrips. No free be made throul(h the Bar al the time trips are taken: however. in lieu o( Annua l Meeting you register for the convention.Please complimentarytrips.a cash equivalem Pla1111for the Juli· 12·1~meeting in do not call or write for the hotel reser­ o( incenllw scats is paid to the State Mobilear.;alm06lcomplete. You·u note vations until that time. Bar l'oundauon so that each member some changes 111 this year's meeting Licenses and Membershi p Cards benefits equally. formai-lhc biggestbeinglheclimina­ Help ..• Help .. . Help tionof Ihe Annual Dinner. Friday night Regrcnably.more1han three hundred is free insofar as formal dinner plans lawyers were dclinquem with license 111eAlolxJ11111 /~111!)'erwa11tsand needs are concerned. Par1icipan1swill have a purchases on the October 31. 1983 news of local bar ac1ivi1ies. Please cockla IIhour starting at 5:30p.m . to be deadline. Many deficiencies have been write 10o ur c'

Tl,, 11/(lbt.,11,aI.a,,,~.,., 125 ALABAMASTATE BAR ANNUALMEETING July 12-14, 1984

Speakers: Mort Herold - Professional Memory Speciali st Fred Graham - Legal Correspondent CBS News and other nationa lly known speakers and Programs: Analyzing Tax Shelter Investments Prepaid Legal Services Workshop "Collectibles Seminar" at Point Clear for Spouses

and Socials: Membe rship Reception j iverview's Veranda featuring "Three on a String"

YLSParty aboard USSAlabama featur ing "The Cruisematics"

Nightcap Party with Dessertsand After-Dinner Drinks featuring pianist Mac Frampton

. . . and much morel

- RiverviewPlaza - MOBILE HotelReservation Request WIii Accompany Convent ion Registration Proving Attorneys' Fees in Alabama

by Richard 11. GiU

Florida ap1>ellattcoun judge. and. apparently. ~-auresof action. Not widow's cow which had been killed by some twtnty years ago.in Lyle only have new fodernlstatutes (and old a train. After a I rial. in which the at­ A v. l.yle. 167 So.2d 256 (Fla. ones. 100.s uch as the amitrust laws) torney was ;.uccesslul in recovering 1964). wrote: spawned numerous 1>roceedings10 re­ $150r or the v11lue of the cow, the allor­ cover recs, but procedural devicessuch ncy bilkxJ the widow $100. When the Nothing lcndij t1111ukkcn the pulseo( 1h e as class actions, and shifting economic widow protc~tedLh c amount or the fee. memb,:r~o( the bar faster tha n a good times and tougher contractual bargain­ the .ittorncy offered LOs ubmiLth e rea­ discu,~ion on fees. Such discussions gcnernlly nrc spiritedand lively, direct ing have ctlso made the litigaliono£foes sonableness of his fee 10 the court, and a11dtu the µ,;1111.and preponderate on the farmorccommon11lace,Few well-drafl­ told the widow, "Mrs. Jones, I am con· positive siclo rather than the n,::gati,·e. ed commercial contracts of any sort fidenlthat any group of auorneys would l.awycrs can disngn.-c on almost any now fall to contain a provision for testify ihat my foei s very reasonable." subJl'Cllnbe mcnt,un<-dbut on the ques­ reasonable auorney's fees; all broker­ To which the widow replied. "Lawyer uon ul (,..,,.1hr) usually Mand united. ~·ewL1w1er, prncuce law for pleasure; age. wareho~ and shipping contracts Brown, I om not in1crested in what a ,cry (cwona!ford to.and 1hesubjec1of so 11rovidc,a, do virtually all contracts group o( auorney., would say. I would foes"' ngh1fulli· cl unh·crsalinterest 10 of 1ndemm1y. like to hear the testimony of a group of the bar but thoub)ec11'0hcnneglec:t...d In !;()Ille htigation. the anomey's,fee widow:;," and 1akt'11foq,,r,intt-d des1li1eits impor­ "tail" ha, clearly wagged lhe litigation In a rt'CCnl casein the MiddleDistrict tancetu thosewhoeam theirdailyli,•ing "dog." 1ncourt. The older equivalent is illus­ of Alabamu.P~orsQ111,. DJ/oni(l/ F/11(1}1· Lrated an the story of LheSelma auor­ do/ Scri•ict•,CV. S0·117·N,t he amount This same judge correctly pointed ncy who reprcsen1ed a widow. suinl! rccol'er.tblcunder the Truth -in-Lending Lhc railroad 10recover the value of the out: "There ,s liut li1tle analogy be­ Act was only $2,000.00,bu Lbased on a tween lhc clements that comrol the de­ termination or a lowyer's feeand those which dl'tcrminc the compensation or skilledcrnfl,mcn ,n 01her fields." Thal patently true fact is frequently forgot· ten. The oncefam,lmr and routine prac­ t1ceof calhng a lawyer friend 10come OYer10 thccoun house to testify about a fee tn o dworce case or a promissory note case (once nearly l he only occa­ Riclro-rd H. Ci/I ret:(!it'fdhis 11111fe1groduoledegree sion, on which fec.-s were recoverable) from Vamlcrbi'IIU 11iversily011d /,L.B. from Iha has now pasS(.'(]in LOhi story along with U11iVl'l"Sily of Virgi11ill School uf Lawi11 1 965. He is a such bclov,-d n11d lamented things as partner ill !he Mo11/gomcrylow firm of DJt,c/(md, dcmurrl'rs, minimum fee schedules, Franco. &·rcws & Gill.

127 claim of :J:l7ho urs of attorney's lime, a been unproductive in light ur lhesizeof case. and to understnnd the relation fee pet it ion was ;ubmiued for I he ((.'(.'OVCry, betwL-.:nthe rc~ult obtain<.'cnlos1." almost any subject lo be ease.or vice versa.The common areas The U.S. Su1>remc Court has re· 111e11lioned,Im/ 011 lh e ques­ where rces nre recoverable are com­ cenlly characterizeddi sputes over law­ lion of fees they usually sla nd nJl•rciai disputcq, Trulh •in-Lending, yer'~ rL-c~,i s "one of the least socially 11nil etl. " civil righ1s.doniesl ic cases,es Lales. en­ 1>roduc1ivc1y1,c;; or Iiii gmion imagina· vironmL•n1al and 0 111iLru sl actions. and blc." llr11sl1,y,,. L,ckcrlwrl. L();l S.Cl. cla~, action Iiii1,,i1tion of all kinds. Some 19:~l(1983). and lhc Alabama Supreme thought ;.hould be given 10 the expe­ Court ha~ twice in 1he last year under­ ricnlc'Cof 1h11"exix:rt" in the type of cas.! taken lo define 1hc appropnate bases obiaincd," 100 S.Ct.al 19.11,and, "The in which he is ll'litifying,not merely as for measunngattorney's fees. Eofl('.r/011 result is what maucrs ." Ibid at 19-10. a licen.'><.'racti1ioni.'rsare familiar with supra, from scH•n to 1wel,·c. Those or a pen:eniagc figure. While a total the landnrnrk case setting out criteria twelve gu1dc1ios1sarc: dollar amounl is the most common l'X- for fee.,,jolms1111 1•. GroYl(inH wy. Ex­ (I) Thcn.iturcandvu lueorthesubjea­ 1>rcssion,lhe Alabama Supreme Court pri•s.<.488 l'.2d 714 (5th Cir. 1974). but maucr 111th e employmcni; recently approwd a pcl'cemngi,figure . 1>robably fewerarc11w11rcor Alabama' s (2) The l<:arning. skill and laborrequi­ In l:'111,~•r/1111 ,,. ll'i//ia111s, supra, a lax· site to hs properd ischarge: Killg 11. K,•i//1, 1 1.'0urL a own similar ca~c of 257 (3) 'l'he Ii 111c consume'(!: 1><1)'Cr clasfi nc1i on. he aflirmc'lain­ lcachings or both the recent decisions rtpu1n1ionor lhe allorncy; liff classof 50%o r I he lirst $.'i00,000tomarilycharged m rhe hours um~ customary rates will not The 4.-0Urlb rarely focus on each of locnl1t)' !or 5imilar l<,og:ilservices; be~uHicicnt 1 0 husinin a signifkam ree 011 TI1cision.Given the pra, the court inclicatc'tllha1 a fee in the b.ickground informaLion lo allow his minimal v:1lucuf the subject ma1ter. ii rang,:bctw!oen$7.500and~6.i00would opinion 111be formt'CI with these twel,e wa;, plamly unrcru,onable 10 expend be reasonable.on 1>roofor 8-10hours or criteria m rnmd. lie ma)' or may nOI $31.59-1of l~al t 1meon it. By the same auomcy's tune: 1.e.. a fe('orfrom $937.,o find tha1 all 1wt'l\'e ha\'e a material token. the subject mauer may be of to $3,:137.r;o per hour, dearly based on bcanng on his fmal opinion. bu1 the great socielalor01her valueeven 1hough 1hc efhcrcm and cffcc1ive re.-ult ob­ raw malenals §hould be furnished to of lilt le monetary concern. The legisla· taint'CI. At 1hc same time, the court him. He ~hould nut merely be told the tive histol)•of ~2 U.S.C.§1988 poims to made ii clear I hnt i1 was not u11fythe number of hours and 1he petitioning the Congressional rccogni1ion I hat the rcsu II which had tu be considered. On a11omey'susunl hourly rate, bu1s hould "\'alue" or the subject mailer is not to 1he other hand. in l'Cltrsim,1h e hourly have an opporiunit)' to review the en­ be dcnib'l'ated merely "because the rate w.ts $ 17.80 per hour. because the tire fil<'.to unders1and I he nature. diffi­ ,-ights mvolvQdma y be nonpecuniary COltrl rcgnrdc

121! May 19/J.I Cong. and Admin. News 1976.p. 5913. sonably kep1/ro111lhr outsetin any case the meaning of this factor was found in While the social wonh of all litigation where the issue of a fee!may uh1ma1cly room1liligation in which the plaintiffs' to the resolution of d1~pu1escan be beconlCSLed.Many cases first arrive at auorneys represented a class of trust argut'plicationof where the court. nQted that there arc h,sacquiredskills.accomplish the work cases which "involve I he lives and for· rapidly. Although this clement sounds tunes of larger numbers of peopleand immodest, it is imponam 110110let the less night going over a closing argu­ ment In yourmind. ort heravagcsof an hove a greater public value than other skill and efficiencyor the lawyer wind cases... In class action cases,a lawyer up penalizing him becausevery few ulcer Cromwrestling with saving a chen1's livelihoodor family can be so may represent hundreds of thousands hours are required. But l',om,11poims of poople." 10 1he risk ol bringing more "learning" recordedisdifficuhtoanswcr.Ahhough and ·•tabor" to the task than is ··requi· this anicle is not a forum for one law­ site" to its "proper" discharge. Dr. yer's "philosophy,"I suggest Lha1,in all (6 ) Th e measure of success ob· DcBakeymay be hlr t'CI for surgery in but rout inc matters, we do our clients, tnin ed. The Supreme Court has an· which he performs only ten crucial ourselves and our professiona disser· nounced loudly and clearly that this minutes of the operation,but few would vice to seek compensationfrom a coun factor must now assume the first posi­ contend he should be paid at the rates as if we were piece-workers1umingou1 tion. Logically. it should always have widgets. Ob,iously. high hourly rates of a third·>-eatresident . been more important than mere hour.., rcllCCl10 some extent the altomey's or than the reputation of the anorney. professionaltraining, but surely more Since successful representation is the (3) The time consum ed. This fac­ is ,11st ake Lhanmer e hours - a meas· go11l or all representation anywa)•, it is tor. which once occupied so prominent ure which puts a Jlrcmium on iueffi· the most laudableof mra~urcments of a role. has been relcga1edto less and dt//1:y, make-workand delay. the fee. The courts have held that the less significance. Despite Lincoln's court may make a foe award based fomous dictum about a lawyer's stock (4) Th e profess iona l experie nce wholly or in paM on the court's own m t radc,the emphasis on hours a.lone1s an d rep utati on of Ilic allome y. I observation of the conduct ol the case bolh misplacedand demcanmg. ll puts doubt 1fthere is much 1>raC11caldiffer · and ,ts own positionas an "expert" on lhc work, skill and judgment of the pro­ cnce between this factor and 1.he "skill legal fees. CamplJl,/111,G,m ,. 112 F2d fessional on the same basis as an as­ and learning·· factor, but perhaps there 143 (5th Cir. 1940). This applies to a ~cmbly line worker, without regard lo is some distinction. Few, if any.great number of factors, such as the com· almost everything that is important to results are achievedon reputationalone. the attorney's role: it ~up~ that. as nnd often a young prnctilioncr whose between two clients with identical consoousness of his inexl)\!rienceleads problems.the one 1sbelier ,;crvedwhose him 10 work harder nnd more single­ SAVE 30-60% auorney takes longer 1oaccomplishthe mindedly on a casewill do as much or • * * client's business; it rails 10distinguish more than many "lions of the bar:· Al· USED LAW BOOKS between the anguished hours al mid­ bert Jenner ol Chlc,igo Is reported to * * * night during a trial goingove r a critical earn over $300 perC hour. learly, his • West • Lawyers Coop • Harrison cross-examinmion and the "review of repumtion helps to justify such a fee. • MaUhew Bender • Callaghan• Olhers file" ume so frequently recorded; it but it is a repu1a1ion buih on skill, WE BUY - SEU. - TRADE gives no credence lO an inspired solu· learning and experience,and those {ac- Law Book Exchange 1i<1n10 a hopeless situation versus 10.-sjustif )· l he lee.not rc1>u1a1ionalonc. P. 0. Box 17073 hours proofreadinga set or routine in­ Ja cksonville, F'L 322 16 tcrrogalOries.Nonethel ess. hours an• (5) Th e weight of the attorne y's l ·800 -325-6 01 2 important, and records should be rea- rc!!ponsibility. A personal example of

129 plex:iLyor difficulty of the case, and can cases than they would if they charged little substance to this yardst ick. The be uniquely helpful in the court's as­ an hourly rate," Hensleyv . Ecker/tori. more important meaning relates to the sessment of Lhe resulLSobtained . 103U.S. al 1947. "desirability" of the work - that is, will it cause others not to employ the (7) Th e r-easo nable expen ses in­ (9) The natur e and length of a allorney? An examp le from the case curr ed. Whenever a fee is uncertain of pr ofess ional relati ons hip. The law is that of an allorney who sued a recovery, an additiona l elen1ent of the courts use lhis factor rare ly, and it is police officer, and was thereby unlik ely risk is the investmen t by the attorney generally interpreted to mean that an to be hired by other officers. The same oflargesumsofhisown funds towards attorney is just ified in expecting a could he said or suj ng any large corpo­ expert fees, deposit.ions, etc. A lawyer higherfee from a one-time client versus ration, bank. institut ion or profession who must advance $10,000or $50,000 one whose business is regular and can (such as doctors) - the attorney may (as may easily occur in modem pro­ he counled on for repeal employment. well find that he is precluded from be­ ducts. securities, medical negligence or ing hired by those who are associated class action cases) should receive con­ (lO)Thefe e cu stomarilycharge d with the opposing party. sideratio n for that risk. In 1973,in a in the locali ty for similar lega.l se r­ products case against General Motors, vice s. This factor embodies Lhe dan · (12) Th e tim e li'mi tations im­ Lhe plaintiffs' auomeys advanced over gerous concepL of the " locality" rule, posed by th e clie nt or the cir cum­ $.50,000:in .1981, in a will contest, the and needs to be carefully dealt with. Is s tanc es. lf the case requires imme­ expenses were $40,000; in 1982, in a il Lhe "locality " of the lawyer's prac­ diate attention . emerge ncy procedures, class action with 1.200class members, tice, or the "locality" of the client, or dropping other work, etc., then the fee the cosLSwere $35,000exclusive of the the "localiLy" of the court? A Birming­ shou.ld reflect those demands . cost of notice to the class: in 1983,in a ham attorney customari ly cha rging The " lesson ," if you will, is merely defective drug case, the expenses ap­ $100 per hour should not be pe.nali?.ed tha t, where altorney's fees are a lit­ proached $100,000. The attorney who becauseaclieotfrom a localewhere$60 igated issue, the same care, prepara­ takes such risks, and succeeds, should is customary chooses the Birmingham tion, and analysis should be brought to be given comparaLive credit by the fee­ lawyer's services.The experience, skill bear as on other crucial factual issues. setting judge. and reputation of the Birmingham While we should not devote more care lawyer which merit his hourly rates toJees tha n to the client's business, we (8) Wheth er a fee is 6xedorcon­ may well he the very things which need to do more t han perhaps has cus­ ling ent. This category is somewhat draw the client to employ him. Nor is tomari ly been done in Alabama. Ther e puzzling, since a petition Loa cour t for his overhead less because the case is are many cases where Lhe issue was allowance of a fee almost presupposes heard in Camden or Chatom. The dem­ merely suhmilted to the court witho ut some contingency. IL would be rare, in­ ise of "minimum fee" schedules, and any testimony . and others where the deed, for a fee to be awarded unless the the ruling in Goldfarbv. Va. State Bar, submiss ion was only by affidavit. The allomey represented the prevailing side, 421U .S. 773, 95 S.Ct. 2004, 44 L.Ed2d court is no more bound by a fee expert making the contingen cy of winning a 572 (1975) would be a caution against than by any other, but it should be central consideration. However, il is too rigid a use of "custo mary" fees. given a full and thoughtful J>resenta· clear that the risk of obtaining 110fee is Liontosupporta fair finding. This may an important consideration for the (11) The likeli h ood that a par­ include offering not only oral testimony , courts: "Attorneys who take cases on ti cu.laremp loyme nt ma y pr ecl ud e but all of the non-privileged file, deposi­ contingency, thus deferring payment ot her e mplo ym ent. T he surface tions, correspondence, time slips, etc . A of their Fees until the case has ended, meaning of th is criterio n is merely that record which is inadequate under Pee­ and taking upon themselves Lhe risk or doing work for client A instead of bles v. Miley,joh11so11 v. Ca. Hwy. Ex· t hat they will receive no payment at all, client 8. Unless an attorney were other ­ press or flmsley u. Eckerlwrl may no generally receive far more in winning wise unemployed, there would be very longer stand scrutiny. D

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.., Lorcttn rt1nlfutdro n.!lks the aud _it.ncc to chOOS(! \\1 hich of these law yer!' should be 4 cnsl in the role of chc honker. the good guy. 1he bnd guy, and the to,, •n drunk in a ,vestem film .. Thi-. ,,•n,t to Ulusa..rnte pn:!c:oncctvcd irnJlrcssions jurors often ruokc In 1hc cou.n.room ~uing.. \\ fhn1 choices "·ould you n1.a..ke? l6·folrriols fro,,, tlris sr1uit1ar rau b, /Jurrlraud fro,11 II,, . \lnbn,ua SIAt, Bar.

CornmissK>Oe.rsBruce Shc11r11)•n1 or 0 Thc. Kin_gJish:' n plny bo~ed 1011.nnd ~1cCrcgur during 1hc r>ro­ on the lire oCthe late Hue y P. Lon~.lonncr grcNfiivc C,lCktail Suppt.•r he.hi on Fri­ u_o,•crnor of Louisiana. dny ni"lu . BiJI110\V Cll, l:rnnk Ueud 1 nnd Creggnnd Lo.uriu E,•cr ct1 cnjo)' thc cocktniJ pnriyin lhe 6 l>enutllu l ht\\! office of Jones, l\1urray. Ste" •arl & YnrlJrough. Other pnr1i.cipating J.a,v On Snt urd n)' morning nt the Nu~c· ~ office~ \\'urc- Robi.,o n & Belser and Rush1on.S1nke l). John1t1on ..~ Gnrrc tl . 7 Stotio n llrcnkln ..1, S1oh'l:Bur Pr esident Rill lloi n.1011ha ~ hls hean rote and temp-­ ~ra,u..rc dlt-<:"kednnd is,hc.ngi\ ·cnn hean y brca kfoi-1 10 pull hin1 thro ugh the final hours of lh~ ~1idycnr Conrerc nce.

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"my old friend Arihurtt as he spoke.ofit, had gc>Uenprogressively worse in the past few Y'!afS, So ii was expected 1ha1 he would step down at the end of this term and lei his son tun in his place and ~ sw,{ptinto office the way h~ dad had doneTor so maiw year.;. But i1was not to be and his dad nevergot the chanceto htmtandfish with the. grandchildren as he hoi>¢d he by Walt er G. War d would, He died Idle one Saturday evenilJ!l while, ,e wa.~preparing,his evening me;,I The jucJge roofied back in the old ti9ns of judges. lawyers, t'1eir t~, just Hke Ilehad cloneeYeT)I night since his oak poreh swing, picked up the cloth friends, pdrtncrs, relatives andchikh:en. wife ~ed of ca~ r ter\ years before. which hSth ree days later and kinds,as wellas popla~. <;>alls,sweetgµm upcl>mingelection to think pf. one or the m<>lilheavily attended in lhe and cedar treea. The evergreens IW.l:.e How 1i1neflies, he thougfo1,the strain memory'of Oak Ridge County's e~e!il darker than they had been Wrnorhac:I appoj nte_i:1Bill to begun showing th~ namiogcolors of lhe Nol Ihat anyoo)e had eve~o ubted taM his d.\d's pl,1e;cwithinth ree~eksof ' comingautumn. that lhe younger Judge Woods.- then the funerol. Bjllhad bee'n willedthe old s,mply da_y He remembered with the realizationof known ,1s Bill- would one home pl.ice as the qnly child and .b.ad creeping middleage the days of his youth ascend to the bench 10 replace-his dad. moved in with,n two months, just lil.' lhc Alaoo,11nII/Ir 1!m111 l!tis s11111111~rand clerkf~r gether 111 so many limes befole. }udJJeBrncllcy 011 /hr Co11flof Cw,/ Appeals 111 The bUll was lowcn ng ,ts gaze behind Mo1tllf(lmery, the trees on the hillJ ust to his le!t and he

T/JrAlnbi111111 IAwy.rr s.iw whit<>~hdfh oflight dS 1he.yhit part of 8..ild Rock the nume given to the Congratulations mount.im, more " ldrge hill, really - di rectly, who,mig the trees on the eastern to side.of the hJUto be darker as though !hey had hnally~'S{JP<,'dlo I he stool on l\is lefl, in lhis issue hftedhis glilSSof i<;et ea, moved the sprig of mint out of his WdY, ~nd loo k a long Runner-up: Judge Robert L. Hodges sip. II w"h too l on his lips and felt very "A nnabelle's Dilemma·· good db It trdccd into his S1omach. To be published in I lew,mted lo escdpe the heatallrighl. the November issue Bui not th~ physical heat; he sould es, cape thdt by going 1,is1deunder the cen­ Thank you lO all of those partlcip,,ting in The Al.abama Ldwyer Short Story tral air condihomng 1ha1had been in· Contesl Other entries 111111be published in future Issuesror your enjoyment st.illcd eight ye.1rsago. No. he Wdnt,•d10 be out of 1heheatof tbe ROOS<:veltmw&r iri.tl. It"'""'the first thlng:old Ch.1rlcywasworkingthereand be.iutumn b.•fore long by the bit oi a chill murder tn.11111 Q .. k Ridge county in when he "'"" ~r he was up with the 1nth!! .>trdS th,• sun began to set and by twcnty-fiw y~,,r, rn which the district at­ chicken, .ind ;,1 work early. He had in the bt,glnn1ngsof goose bumps on his torney had JSked ro,the de.11hpenally . deed gon~ to work early the morning he anns. In f..1ct,Iher;, hi>dbeen no c::aselike 1his was murdered leaving home ,n his old nwt ndl of Roosev<'Jthad been difficult olle ~ince his father hdd been a newly­ J)u1due to lack of wil nesses and ramous Smith I rml. No chance for dad lo But Junge Woodsh•d never had any g()(){I cllrectevidence II was the optnionof get out of th,11c~s,,. th,mk yau. He had lo deJlingswith these two either so he could the DA's office thu1 they would be well take wh<11t>verc,11ne ...Jong. not come LIPwith a conflic1. He couldn't adw.ed tO ilSk fo1life imprisonment. The younger Judge Woods had no1 ge1 out of hc<1nn9the c-~ . But Jenki1~~Md finallyturned Slate's wanted lo hedf th"' case. At all. But he The luck ol thedrawhad fal!enon him evidence.ind told the story in all of ,1s h.id 10 iJke 1lw luck of the draw - if It fl~I mor,· like ligh111ii19. gory d that he was gla~y l>ik-ncc,uound h,m rest of th<' swmg w,1h enough force 10 going to "k1Uthat fellow"as soon as he He ,sathi!, tea back down, pushed hJm. intelTUptthe 5w1119'1, pattern and scrape sau.•him get out of the truck. Jenkins self into J more <"Omfortdbleposmon. some skm ofl hi, middle knuckle. There 1eshf1cdthat h~ wanted to stop Roosevelt and closed hts eyes remcmbenng. was a smdll,sharp p.,m that he barely felt but th,11he wasafra,d of the much bigger He h.,d stronslJI hoped he could get Hew.is 9Jddthat V1rgm1aand the kids !'Odil c,ut of 1ry111gth is caSeonsem awily after the Judge forward .ind admitted the• he haetnumber tors, Albert Lee Jenkms and Tony .irtd lus will' thdt they needed a rest be 1ne prctureso! 1hemutila1ecl body and Ftankhn Roo,,;(."'~lt.Just two drifters who fore sehool l:>eg;tn. the blc.lOds1.i111edwalls were admitted h..1dheard I he "pocryphal I.olesof money H,•looked Uf>""d noticed the hawk into widente ""d shown 10 the. jury, stuffed mtn th<'n'ldl mlS1leS of old Nadine had finislwdcircling dnd was Just about many of whom could stand 10 take no Pedbody°hhouw dnd decided to irwesti· to begm \o dlw on its prey in the field$ more th.in a quick look. Two of the gate tlwm for lhrmselves. below.111c 1emper~ture had begun drop· wom~n1,.,d begun sobbing softly. 11,e Only Ihey hdd not calculated on one p1119t111d he could tell Ih~t ii really would three bl..ck Jurors had adopted a dis· t:u; ,\lay l.!181 gusted look when they saw the pictures. you could give him back whatever was His mind went back to when Bill was In short, it took the jury less than one left of his life. But a life could never be just little Billy, age 8, and Judge Woods hour to decide on Roooevelt'sguilt and restored. Ever. was just ''dad." Itwas an early spring day less than another hour to vote 11· 1 to What about Chorley Johnson's life? and they had been on a turkey hunt. just give him the death penalty. The one vote he thought. This person had taken it the two of them. Dad had armed himself against was from a young woman who without reason, with premeditation, and with his favorite 12gauge double barrel said later that she opposed the death in the face of pleas for mercy. and little Billyhad carried his 20 gauge penalty unless there was more and better The words had run true when they pump. evidence. Much of the hour was a wasted were spoken by R.B. Walls, !he DA who They were in a blind near the heart of attempt to convince her to change her had prosecuted the case. Give him the I he woods for littleBilly's first real turkey mind. death penalty, he had thundered lo the hunt ever and dad had been calling for Nowit was up to him. He had to decide jury, or we should let him go free. about live minutes in the early morning whether to followthe jury's recommen· The murder had been violent. But darkness when an old gobbler answered. dation or to be lenient and give Roosevell Roosevelt had not been arrested in two Before long Billycould see the brush lile without parole. It was all up to him. years and had seemed to be doing better. about 125 yards away begin to move. Only him. But no one really doubted he murdered Flushedwith excitement because he had The sentencing hearing had turned up Charley Johnson. I believe lie did it too, been promised first shot, he began rais­ little that was helpful for Roosevelt. He tbe judge said aloud. ing his gun 10 aim at the bush. Dad's had been abandoi,ed by his parents But what good would giving h,m the hand had come down quickly onto the when he was very young and had been death penalty really do? Would it deter top of the barrel. "Don't aim at anything raised by his maternal grandmother. He others? Some said it would;others that it unless you can see what you're aimingat had been in and out of reform school and would not. But the elder Judge Woods and intend to kill it," he admonished. later the county jail for all of his life. had called all of that much ado about Billy lowered the barrel and waited, The judge had found that there were nothing. Sometimes we just need justice, afraid the gobbler had heard his dad. The two aggravating circumstances - that he had said, so the community can get a fears were without justificationand in a the killingwas avoidable and that it was feelingof relief. few minutes the old gobbler appeared in done during the commission of a crime But the finalityof the thing bothered the open. Billyraised his gun to fire, his - and no real mitigatingcircumstances. him still. What if we are wrong, even stomach suddenly in his throat and his So now the judge had 10sentence him though it 1shighly unlikely, he asked him, heart about to explode. for what he had done 10 old Charley self. Hard and fast cases had been blown As he was readying himselfto squeeze Johnson. The jury had recommended open by the discovery of new evidence. the trigger he noticed something funny the death penalty. The heat was on; and But that was rare, the exception to the about the bird. Itwas crippled. Its left foot it was on him. rule. was badly mangled and its right side was As if to punctuate the thought he felt So now it was up lo him. The spotlight torn and scarred, lhe only visibleremains the moisture under both armpits and a was on; and he felt the pressure . The of a fightof an earlierseason . Billyfelt pity trickle down his sideburns. The increas· press hl)d been dropping by to get his for the bird. ingcoolness around him told him that his comments and he had even seen himself But should he still shoot it? perspiration - sweat was the term he on the six o'clock news. His name had In its condition it couldn'1Ry and would actually preferred - was from internal appeared in the headlines:"Judge Woods probably be killed before long anyway. and not external sources. to Sentence Convicted Murderer Next But what had his dad told him about life A breeze swayed the rose bushes in Week," and "Death Or Life The Only and its cycles; about the balance of front of the porch. Those roses had been RemainingIssue." mercy and harshness in the wild. The his father's pride and joy, winninggarden Forget the headlines and the upcom, decision was his alone and he knew that club and county fairawards for as long as ing election. The judge just wanted to do he did not have time to consult anyone. Bill could remember. But Bill had not the right thing. He had to thinkquickly and act decisively. shared this interest with his dad and in What about the biblicalidea of an eye The man in the porch swing smiled,no the interval the neglect had caused the for an eye? The Old Testament, he longer little Billy,but Judge Woods. And bushes lo lose much of their lustre. At though1,and hadn't the New Testament he knew that no one, n01 even his dad th,s time of year they had long since lost been all about forgiveness? Bui as his could make up his mind for him. their flowers and were now nearly inert, father had said: biblicalforgiveness can The rays of the sun could now only be just waiting for the cold winter 10 enve­ come from the individualor from society seen in the highest part of the sky. Venus lop them. or from God. The last kind you ask di, was dearly visiblejust above the amber Death.The word, even though it had rectly for, lhe second kind should always horizon. No breeze stirred now but it sounded only in his mmd, carried with it a be givenand the first kind could be given was cool on the porch. great lone of formality. You could give withou1 taking society's duty 10 punish TI,e judge felt a sense of release. Now much back to a man. If a thief stole he away. Society had to defend itself. he knew what it was he had to do. could make restitution; if someone in· What would he do if he were here? he He stood up, took a deep breath, and jures someone else he could be made to asked aloud. What u:ould dad have walked into the house. The night would pay; if you convicted the wrong person done? passbetter now. D

11:" .tllab,nnn/.J111 ')r~ 137 locatedat 972 Central Bank Building. P.O. Box2008, Hun1s,@e. Alabama 35804. Phone 533-1-121.The firm is also pleased10 announce the associa· I ion of Barbara S. Corner as asso­ ciate and of Donuld W. Davis as &\.bout ~(embers counsel.

Am y M. Wilkinson is pleased to &\.mong Firms announce the openingof her omce for the general practice orlaw at 2925 MontgomeryMi ghw,1y,P.O. Box37, Pelham, Alabama35 124.

About l\'len1-bcrs Edward $. Sledge m, of the Mo­ George C. Howkins and George bile law firm of Hand, Arendall.Bed ­ Barbara A. Handley, a 1983ad · C. Day, Jr ., announce the formation sole. Greaves& Johnston, has been of a partnership for 1he practice of mittec to lhe Alabama Suite Bar. has appointedas Alabama State Chair· joined the legaldepanmenl of BE&K. law under the firm name of Haw­ man of the DefenseResearch Institute kins & Day. Ofnces arc located at Inc. Miss Handley was employed al for the 1984-85 term or office.H ar old BE&Kin 1972 as an administrative 826C hestnut St reel. Gadsden, Ala, f'. Herring, of the Huntsville law bama 35901. Phone 543-7200. assistant and the company's first em­ firm of Lanier. Sha vcr & Herring, has ployee. Since then BE&Khas grown been reappointedas Alabama North· to becomeone of lhe nation's largist cm Area Stale Chaimtan for the John T. Mooresmith, having engineeringand construction fimts. 1984-85term. Robert II. Smith, or withdrawn as a shareholder of the the Mobilelaw firm of Collins,Gall o­ Mobilelaw firm of Brown, Hudgens. Richar d C. Bentl ey, formerlyof way & Smith. was reappointedas Richardson,W hitfield & Gillion,P.C ., Montgomery, is practicing law in Abi· Alabama SouLhern Arca Stale announces that he has openedan of· !enc, Texas wilh Hanna, Bentley& Chairman for the DefenseR esearch ficc for the 1,be!J, formerlya ney, has been appointed an aS&JCiate member of the Birmingham firm of Lewis Fl. Hamn er, P.A., an· editor of American Marilime Cases, Berkowitz.L efkovils, Patrick, Isom. nounccs the relocationof its officesto which is a collectionof all published Edwards & Kushner. has recently 202 East Main Street, Roanoke.Ala ­ decisionsby courlS in the federal and open«! law offic:esin Montgomeryat bama. Phone 863-2100. suite couns of the United States that 322Alabama Street. Montgomery, involvematters of interest to the ad· Alabama36103. mirally bar. Donald Lee l:lcrnn announces lhe opening of his officefor the private Cartledg e W. Black we!J, Jr., and pl'acticcof law at 55Centra l Bank Brewton attorney Jim Har t was J . Par ke J(e itl1 are pleased lo an· Building.P.O. Box8 75. Huntsville. elected the 39th president or the nounce the fomtation of a partnership Alabama35804. Phone 533-1724. 16,000member Alabama Cattlemen's for the praclice of law under the fimt Associationduring the association's name of Blackwe ll & Kci th . The annual meetingin February. Hart firm is locatedat 619 Alabama Hand, Arendall, 13cdsole, 1>rcsently serves as the chairman of Avenue. P.O. Box 592. Selma. Ala­ Gre aves & Johnston, 30th F'loor· lhc Alabama Bar Association'spubli c bama 36701.Ph one 872-6272. First National Bank Building, Mobile, relations committee. Alabama, takes pleasure in announc­ ing that Orrin I<. Ames UJ has be­ Be!J, Richard son & Herrin gton, come associatedwith i he fimt. Alabama Supreme Court Chief P.A., and Sparkman & She1mr d, Jus tice C.C. Torbert , Jr ., has been P.A., are pleased to announce the named the 1983recipient of the Dis· merger of their law practices as Bell, The firm of Barnell, Bugg & Lee tinguished ServiceAward by the Richardson, Herri ngton, Spark · is pleased 10 announce that John B. OpelikaJayc ees. man & Shepard , P. A. Officesare Barn ett UI has becomea membero f

138 May 1984 the firm. Offices are located in the mingham, Alabama 35203. Phone Monroe County Bank Building. Suite 252-7661. LawyersEducatio nal Press 200, Monroeville, Alabama. Phone P.O . Box 1287 743-3386o r 743-3387. Universi1y,Alabama 3S486 Robert G. Robison takes pleasure in announcing the location of his of­ Jame s Robert Bea ird , Steven fice in Southeast Alabama located in A. Thoma s and William K. Hig­ Newton, Alabama. P.O. Box 86, gins, Jr., are pleased 10 anno unce the 36352. Phone 299-352I. formation of a partnersh ip for the general practice of law under the lirm name of Beaird, Thomas & Hig­ Brown , Hudg ens, Rkhardson, gins. Offices are localed at 102 Bank­ Whitfield & Gillion, P.C., takes head Byars Building, 1816 Third pleasure in announcing that Caro­ Avenue.Jasper, Alabama 35501 and line E. Wells, formerly a member of Blanton Annex Second Floor, Jasper. Gallalee, Denniston & Cherniak, has Alabama 35501. Phone 387-0332or become associated with the firm. Of· 387-1447. fices are located at Executive Plai.a. Second Floor. 601 Bel Air Boulevard, Ma.nyyoung l1wytrs gr,aduate (rornl aw acbool wllh oo e.:cper1eoctln basJcl aw of. Mobile. Alabama. fi~ pr1cUce. auch •• dosltla: re.a.I estate Bruce A. Burttram and Hugh C. lo1.111or prob1~ a will. Alabam.a Law Office Practice Otuboo k was writtco to Hende r son are pleased to announce rwtbla Deed. 8 1.ted on ouWnesof bJ1 clas.s David P. Broome and Edward J)f'fsenta~ dellvettd tn lht Uolvenity the formation of a partnership for the of Alabam, ·, Law Ottlce Pr-actJct course McDono ugh, Jr. , announce the dwina the p11-t eight years , Robert L. general practice of law. The firm. 8. McCurley'sbook lneludea practical bow, formation of a partnership for the to.do-It ad·vke oa h1ndlin1 a va rietJ or Bw·ttram and Henderson, is lo­ law office m1u.er1, 11 well •• code dla· practice of law under the firm name Uoclsaod forms geotrtUy usedby lawytn.. cated at Suite IOI, Lindley Building, (11982, .ill pages , IMix 11, soR covtr . Birmingham, Alabama 35234. McDonough & Broome. Offices are at 1400 First National Bank Build· 198}. Sttond Printing ing, P.O. Box 1943. Mobile, Alabama S24.95 plus S2.50 for p0stage The firm of Gaillard, Little, 36633. Phone 432-3296. D Hume & Sullivan is pleased to an · nounce the relocation of their offices to the 10th Floor, Merchants National Imagine: Bank Building, Mobile, Alabama. You're about to erect a spectacular new office tower . George F. Maynard , N. Lee Cooper, Meade Fr ierson II I, There's just one small hitch. Fournier J. Gale Ill , Doug las T. Arendall, l

The Afhl11n,u1l.ate ycr 139 G)\iding the Circ11its

Calh oun -Cleburn e Coun ty Bar Associ ati on ing." Cerlificalesin recogniliono f and appreciation for fifty Officers or the Calhoun-Cleburne Counly Bar Associa­ years of service to the public, bench and bar of Mobile tion for lhe 1984 year are as follows: County were presented to Winston F. Groom. C.A.L.John- President: John Norlon Vice president: Joe Estep Secretary: Vaughn Stewart Treasurer: Brenda Stedham Other positions include Kirk Davenport as chairman of Law Week. and Joe Eslep as chairman of the Law Library Commiltee. The Executive Committee is composed or Ri· chard Cater. Tom Dick, Bill Jackson, Jim Main and John Phillips.

Mobile Bar Ass ocia tion Al the regular monlhly meeling on March 19, 1984,the Mobile Bar Associalion applauded three men who have given a lotal of 150ye ars orco unsel to lhecommunity-to quote the Azalea Cily News& Review, "150 years of lawyer·

.. L

CongratulaH ons to the "Ba!lling Barri ste rs "' of the Mobil<' Bar Assoc iation, who walk ed o[( with the L1·ophy for the City BaskctbnJI Leag ue in Marc h. Tcan, memb ers pictur ed Pictured ar e Mobile Bar Assoc iati on Pr cs idcni G. Sage includ e: 1st row, Pct c Mackey and Norma n W nldr o1, hold· Lyons and Fifty Year honorees C.A.L.J ohns tonc.J r., Win­ ing trophy; 2 nd row. George Brown. Coac h Chris llum c, ston F.Groom,andJ. Edward Th ornton. l' hotocourtcsyof and $ id Ja ckso n; 3 rd row, Georg e Walker. Eddie Gree n. l'J,e1- lwlea City /\leuw (.e,Re1 1ieu'. and Bob Wills;

140 sto ne.Jr., and J. Edward T hornton. C. Sage Lyons. presi• denLof the local bar, made the presentaLion. T hese gem le­ Jud ge Pelham J. Merrill men shared this occasion surro unded by family, close friends and associaLes. Upon accepting his award, Mr. receiv es award Thornt on. claiming to have lost his voice and with tongue in cheek, said he owed iL all to "good clean living and minding my own business."

Montgome 1·y Coun ty Ba r Assoc iatio n

On Monda y, April 2, 19$4, .ludgc Pelham J. Merrill (cen­ ter) received the Eugene W. Caner Medallion Award ,tiv e.n annua lly by the Admin istrative Law Section of the Alabama Srnte Bar. The awa rd is in recognition 9f indivi d · uals "'ho have, ,vh ile in (uJl.tiJne public service, demo n · stratcd meritorious service by unselfish ly weigh ing lhc intere s ts o( governme nt against the rights of indiv id uals. Pictur ed wilh Judg e Merrill are J oh n J. Breckenridge, chairman of the Administrative Law Section (left ) and (rig ht) Alabama Supreme Court Chief J ustice C.C. "Bo" following the ap1>0intmen1 of former Gover nor John Pat• Torbert. terson to th e Cou rt o( Cri111inaJA pp caJs, a publi c in vcsti· lure ce ren1ony ,vas held i.n th e Suprcn 1c Court Building and a love ly recep tion hosted by th e !\'lontgon1c.ry Count y Bar Association. Pictured at the April 9 event ar e (L 10 R) Bill llair s ton . pr es ide nt or th e 1\ labama Stat e Bar; Judg e Pa11erso n: and Henry Chap1>ell, presid ent or the Mont· go1ncry County Bar Assoc iation. NEW! MAJOR ME DIC AL INSURANCE MA DE AVAILABLE TO MEMBERS BY THEALABAMA STATE BAR • $1 Million Lim it • $1000 Stop-Loss • No Coordination of Benefits • Optional Maternity

COMPARE THESE OUTSTANDING BENEFITS AND FAVORABLE RATES CONTACT: l\1any friend s and associate s attended th e inve stitLu'c and INSURANCE SPECIALISTS , INC. congratulated Judg e Patter s on on his ap1>0int1nc nt to the 1718CITY FEDERAL BUILD ING be nch, ,vhi ch he s tated is "a culmination of n life's :1111bi· BIRMINGHAM. ALABAMA35203 tion." He s aid that be ing at lorn ey general and governo r of J\l aba rna ,va~ a ~id e•l rack lO hi s d ..-can1 of be ing a la" 'yer Phone Toll-Free: 1-800/241•7753 and a judge .

Tlw Alt1lxnna Lawyer 141 Third Judi cial Circuit Bar Association vious 10 the court session. s1udems and 1eachershad be­ come familiar with the background of the two cases (one On Friday. April 6, 1984, ..1udcnt s at the Eufaula Htgh ovil and one cnminal) presented. as well as the rules or School enjoyed a !earning experience or a different kind. court decorum. Twice yearly the AlabamaSupreme Court Through efforts initiated by I he Third Judicial Cin:ui1Bar conductsspecial sessions outside of Montgomery,mostly at Associa1ion( comprised or Barbour and Bullockcounties ). educational institutions. the Supreme Court or AlabamaSUI in special session before The court session was planned to coincide with the some 1.500stu dents in Lhe high sehool gymnasium. Pre- beautiful city's annual historic pilgrimage. On Thursday night preceding Lhccourt session a reception sponsored by the local bar was hdd at the Shorter Mansion ,ind a CI.E seminar on appellatepractice fo llowedo n Fridaya£tcmoon.

(L 10 R) Dr. Daniel Parker, Su1>erinte nd cn1 of Eufaula Cit)' SchoofSys lem ; Alabama Su1,rcmc Cour1C hie f Jus tice C.C. " 8<>"Torb ert; and Jimm y C,ollOn, 11res idc nt of the Third Th e Supr eme Courc of Atnbumn sits in s1>eci11I session on Judicia l Circui t Bar As1,ocin1io11, tulk af1cr the special ses ­ th e basketball "co ur t" In th e Eufaul a High S~hool gynm u­ sio n of 1hc Supreme Cour l held in the Eufaula High School siun1. T he scuin g ,vns uniqu e but stud ents nnd ln,vyc r s gym in April . k new ii was definit ely "th e rc nl McCoy." 0

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II ~ Muy l!!M l!G~Sllf ~VI WRAP!!UP

by Randolph P. Reave s and Robert L. McCurl cy, Jr.

his report comes to you well into the 1984Regu lar feelswi lt endanger the fund. As of this writing. no bill has Session of the AlabamaLegislature. It was written been introduced to effectuate any of these changes. T followingt he 14th legislative day of the 30,day Also approved by the Commissioners in principle was rei,'lllar:iess ion. Due to the delays involved in priming and legislation to create a client security fund. The need for distribution. 1lw status or some bills reported may have such a fund and a proposedp lan lo create one was illumi­ c:hang~'

Alabama Sta te Bar BiUs Constitutional Revis ions Proposed The Boordof Bar Commissionersendorsed severa l bills Both Lieutenant Governor Baxley and Senator Ryan for introduction m this years regular session. Two bills deGraffenriedwam a ncwconstitutillc:r·soffice b roke down creating an un· companion in the Senate is S.13.298. At this writing both cenam ruwre for any of I.hechanges. The lates t word from bills were out or committee, but neither had reached the the Co111111il 1ee inclic:i1es the Comptroller has agr~'Cl to all noor. changes other than the increase in hourly r~~.wh ich he An important bill for domestic practitioners ,s S.B. 86 by

143 Jim Smith of 1-luntsville. T his bill provides for court or­ dominium I.aw. T hecommittee,chai red by Albert Tu llyo f dered continu ing income withholding by employers as a Mobile, became acu tely awa re of the need for revision with means of child support enforcement. the rapid development of condominiums in Gulf Shores T here have been an unu sually large number of slate tax after the devasta tion of Hurricane Frederick. After several bills introduced this session. These include proposals Lo years of slow real esta te develo1lmen1, interest rates and increase individua l and co11>0rateincome taxes . T here are prices are dropping causing dcveJopcrs to convert apart ­ a dozen different versions of these proposals presently ments in severa l of the major cities into condominiums. pending in one house or the other. Professor Gerald Gibbons is lhe reporter for this project. T he committ ee is not exp<.'Cted to complete thei r initial draf t unttl September 1984. Law ln stitute Bills Pendin g in the Legislatur e Gu ardians hip Rev is ion / Pr oba te Cod e. With the The Alab.1ma Law Institute has presented one major completion and enactment of the "intestate success ion revision.t he Revised Non-Profit Corporation Act, and some and wills" portion of the Probate Code, the probate revision minor amendments to the Probate Code and Administra · committee has chosen to review Alabama laws dealing live Procedure Act to the Legislature. with guard ianships. Th is corresponds 10 Article 5 of the No n -P rofit Corporation . This bill is sponsor<.'CIin the Unifor m Probate Code. The review separates guard ianship Senate by Sena tor Ryan deGraffenried (S.B. 130)and in the of the person from a conservator of the property. It fills the House by Representative Michae l Onderdonk, Jim Camp­ gap in our present law and clarif ies conflicting and over­ bell and Beth Marietta (M.B. 216}. lt will not be effective lapping statutes dealing with curato rs, guardians hips, Li­ unt il January I . 1985. For a review of this bill see the mited guardianships and other stat utes dealing with pro­ Legislative Wra p-Up ill the March 1984 edition of The tective persons. The committee should complete their draft Alabama!.a,uyer. in 1985. Mr. E.T.Brown serves as chairman of the commit­ Pro bat e Ame ndm ents. The Probate Code has been in tee while Professor Tom Jones is the reporter . o effect since Januar y J. 198:l. While working with this new code, which was placed in Chapte r 8ofTit le43of the Code of Alabama (!982 Supplement }. iLwas determined lhal incon· sistencies existed with in the Code and Chapte r 2 of Tille 43, which basically deals with probate procedure. The pro­ posed amend ments bringChapter2 in conformity with the Probate Code by deleting references to dower and clarifying Ra11do/phP. Reaves.a graduate of /he that "property" refers lo both real and personal property. U11iversilyof Alabama and Uniuersily T hese amendments are sponsored by Senator Jim Smith of Alabr,ma School of law, practices (S.B. 84) and Representat ives John Tanne r.Jim Campbell, with /he Montgomeryfir m of Wood, Bill Fuller, Phil Poole, Beth Marietta, Michael Onderdonk 1ll/i111tr& Parnell. P.A. Ne prese11//y and Michael Box (H.B. 18.5). servesas legislativeC1J u11sel for the A la­ Admini st ra t ive P rocedure. The Administrative Pro­ bama Stale Bar. cedure Act became eHective over a grad uated three year period. T he Legislative Reference Service began receiving ru les in its Administrative Procedure Office on October I, 1981. Agency proceedin1,,swe re governed by the Act as of Rober/ L. McCurley,Jr .. directorof /he October l, 1982. All agency rules must have been filed in Alabama law lnslitt

Institut e Revisions Und er Stud y MODERN TIME 2S'f8!1 MON TGO MERY MALL Condominium Law. Alabama enacted its present MONTGO M ERY. A L. 30110 Condominium Law in 1971, six years before the Model 205/201 -8342 Condominium Act was approved by the National Commis­ sioners of State Laws. After ten years' experience of deal· ing with condominiums in Alabama. the Institute has un· dertaken to update, revise and complete Alabama's Con- t4-1 May /!184 pa:,se, only ~om,11mer t:rcdit transac­ t ions. and tts purpo,,e is 10 protect the l"(Jn~umcrhy d1>1elosingthe terms of ~cent CT<.'d1L. by John ~1. Milling, Jr. \\ "orkm en's co mpe nsation ... and David B. Byrn e. Jr . emp loye r ma y be es t.opped GJJecisions to deny e mplo ye r / em ployee re latio nship

11/a.• , \fi s.<.E11t1 •rpri111o:<, foe. 11. 11,,qs­ lt)', CivH Appeals Nu. 3946(February Rcccnl Decisions of the "Three liundred Eighty Six," mistak­ 15, 1984).I n a caSl'offirst impression in Alaba 1a,Co urt of enly dcle1i1111the word "Thousand:-'' Alabama, lhc: Court of Civil Appeals Civi l App eals While acknowledging Lhegeneral law helcl Uml an allegc,demployer may be allowing l'1discsi1>;mcyOOY,'llen.amoums tl\c plain1if(, elected 10 treal tfie')>lain· oi C1vjlAppeals noied a hiatus in the exprcs,"tldin figurcs.a,nd wards. Further, titf as its employ~ The court of ap-­ courl rules ~ I ling the review ol Sec11oi,~9 -2-4 rqviaes1 rc specific JlCtlls rc;1ched its decision in part by juvcnil~htSI'~. ' pite the fact that the penal(f"to bu.J•nl?)lsedj a low way of analogy to general principles of Suprenw Cour1 or~st ically altered the bidder who ror any reason ino la c­ in ranee law but hastened to add tha, juvenilv C<)url!\ys tem in March, 1982 ce1>1a contract as awarded: i.e.,a forfci· th ourLwa s not cx1>;i,nding the defini· 1 (it 11(? longer nmllrrs whe1h er the prq­ tui:eor 1hc l>irl bond posted. tion of 'e11111loyL'C"w lincludc, in every a:eding i~ in dis1ric:1 a mrt ()r circuit instancc. anyone !or hon, deductioru, cou,1). the S-upremc Court left Rule arc made. 59. l('ik) intact. llcnce. the applicable Tru th in le.nding .. . ope n accou nt not subj ect to time limilfor ruling on a JlQ!\Hrialmo­ TILA eve n though financ e tion 111 ;i Juvenile proceeding depends on whctlwr one is in district court or cha rge. im 1>0Sed Recent Decisions of th e nrcuu c:oun In this ca.;e, the p."trties Slap/es j,·11k11bBuildtn. foe.• Civil Alab am a Court of \\ere 111di,strict court and waited more Appeals , o. IO!l'lffcbruary tl.-1984). Criminal Ap peal s than !uur1wn () II days from rhe date Jenkin s fik,d sui1 nn an open account when th~ poe!Mrialmotion was deemed foreenain butldmgmatcrialspurchased Def~Hc of int ox ica tion .. . denil.'d. court nf could idiocy · not the s tandard Th.. appeals as· by the defJi dant. The purchase 1errn $ l te rt1;1inno rcawnwh y u,e time limit we,·c "Net ash, J.irst ol the month fol· Dixo~11.Slf! lr. 6 Div.8349a nuary. 31, should be di!fcrcn1 d1•11endingon 1he lownlg JJU ·haM!."The defendant did 1984). lLmmis­ Truth ,n IA!ndingAn (T£LA) since he sion of the crime. At the close o[ the Clarkin in..~tallmems evidence. the lri31 judge undertook to A/11/x,mn flil(l11c'IJ)'IJ,'/)i1rlmc11/, Ci,il and a fim111,,.charg,·wasimposed. Th e charge the jury on the affirmative de­ ApJ)Clll~No. 3761 (January 25. 1984/.A Court of Ci\ ii 1\JlJX'lllsdisagrcro ~tat· fense o! involuntary in1oxication. The contraelor fileds uit 10have its bid res· ing 1hat Scdimclypr eceded by the words item was ontcred. The TILA en~om· you, lndic~ nnd gentlemen, to say he

TJu. ll11/;u11;at.uu~ ·, 145 i~ no1guihy. We just don·1 operate the record lo renec1 certification. The the law in that fashion.H owever.if Recen t Decisions of th e he bt'Comesso imoxkated that his Supr eme Co urt of judgment will be taken as final as of nlind c..-easesto functionas a 01ind Alabama- Civil the date the 54(b) certification is en· and ht· bt·cunu•san idiul, i( he is no1 tered. Adoptionof this p.-ocedure would orientedas to \\thohe is or \\•herehe is advance rhe policy considerations un· or 1hingsof 1hat nature, if he is idio­ derlying Rufe54 (b) by speeding up the tic. 1hc11of course,t hat could be an excuse to co1nn1it a crin1e.. . Insuranc e ... process of reaching the merits in a ~Vixom ove rrul ed a nd Utica proper case. Judge Sam Taylor wiiting for a m1· reinsta ted animous Court of Criminal Appeals Civil proced w·e . . . reversed the case. Judge Taylor wrote: United Stales Fidelity & G11ara11/y Company11 . WarwickDe11e/opme 11/Co .. rul e 4(f) amend ed This charge incorrectlystates lhe Inc.• 18 ABR 1086(February 2, 1984). Go11znlesv. U·JChevrolcl Co., /11 c.. 18 law;idiocy is not the measurement10 USF&G issued a comprehensive gen· be employed by the jury. The court ABR 1205 (February 24, 1984).Upon erred to reversal ingiving1hischarge. eral liability policy to a housing con· recommendationof the Supreme Court tractor. The policy was in effect when Advisory Committee, Rufe 4(f).ARCP, Multip le defe ndan t the house was built, but the policy had was amended effective March L. 1982. re pr esentatio n . . . expired at the time of theaccmal of the to provide that, when there are multi· con flict of inter es t cause of action, i.e.,at the time damage pie defendants and the complaint has occurred. USF&G denied coverage for Stale. 4 Div.249(March 20. not been served on all defendants, the Sellers v. alleged fauhy workmanship because 1984). Sellers liled a prose petition for plaintiff may proceedLO Lrialand judg, no insurable loss occurred within the writ of error coram nobis, based upon ment as lo those served, and judgment policy period.The policyconta ined the the issue of ineffectiveco unsel. He was against those served is fi11nl and a customary definition of "occurrence" indicted for burglary along with two timely appeal must be taken. The pur· which requires damage tooccurdurin g poseof the amendment was lo harmon· other defendants. T he petitioner was the policy period. convicted of second degree burglary, i1.e the provisions of Rule 4(() with USF&G assertecl, and the Supreme but the indictments against his code­ tl1ose portions of Rule 54(b). ARCP. Courtagreed. thatasageneral rule the fendants were dismissed. which provide for finality of j udgmems lime of an "occurrence" of an accident Included in Sellers' petition for wiit against (ewer than all parties. within the meaning of an indemnity of error coram nobis was a fetter writ· policy is the time the complaining party ten to him by his trial attorney who is actually damaged rather than the was also the trial a llorney forone of the Res tat ement sec tion 402A . .. time the wrongful act was committed. codefendants.The auorney's letter read comment k a1>plicab le in an Therefore, the insurance that is in in part: Alabama ex te nded force when the property damage occurs manufa ctur er liab iljty Jerald Carter told me I hat he and is applicable rather than the insurance doctJ·in e action DickH arris would testily that 1hey that was in force when the work was commilledt he burglary while you performed. Sto11ev. Smith. /ili1111& Frenrlt IJJ· weres leepingin a motel.I did no t call boratories, 18 ABR 1322(March 9, 1984). themfor tworeasons. First, I did not The plaintiff had an emotional con di· knowof any legal procc'

1-16 t1/ny I 9l>4 of a drug, there is no duty for additional provides that in subrogation cases the gard the comment.Th e Supreme Court warnings 10 foreseeable, ultimate us­ action shall be brought in the name of considered the comments to be so pre­ ers. i.e., consuming patients. the subrogee. The Supreme Court dis­ judicial as to be ineradicable. ln a certified question case. lhe Su­ tinguished the workmen's compensa­ preme Court agreed with the federal tion carrier situation from the usual district court that in accordance with subrogation insurance cases reasoning J ury req ues t to view th e Comment k, .,~,pra.an "unavoidably that the "real party in interest" is the defen dant after submission of unsafe" yet properly prepared drug is one owning the substantive right lo be the case is error not defective or unreasonably danger· enforced againstt he torljeosor. Ex part e: Balleoste.18 ABR998 (Feb­ ous within the Alabama Extended In third-party actions under Section ruary 3, 1984).The Supreme Court of ManufacturerLiabil ity Doclrineif there 25·5·11, however, when the employee Alabama granted certiorari to review is an adequate warning accom1>anying exercises his statutory rights against the decision of the Court of Criminal the drug. The Supreme Court also the tortfeasor, his rights are exclusive Appeals, which decided that the trial agreed that the manufacturer's duty to if he files suit within the one-year pe­ court did not err when it permitted the warn is limited to an obligati.on to ad· riod and the workmen's compensation jury, over objection, to view the de­ vise the prescribing physician of poten­ carrier's interest is limited to whatever fendant's face to see if he had a scar on tial dangers. recovery the employee recovers from it after the case had been submitted to the torlfeasor. During the one-year pe­ the jury. The Supreme Court. in a un­ Tort s ... riod. Section 25-5-11 gives the insurer animous OJ>inion, disagreed with the emp loyer not re spo nsible no substantive right to enforceagainst rationale of the intermediate appellate for work release inmates ' lhe tortfeasor. Since the workmen's court citing the principle of law in Har- tor·ts out side scope of compensation carrier is not a "real 11age11. State, 290 Ala. 142, 274 So.2d employme nt party in interest" under Rule 17(a). the 352 (1972). carrier is not required lo be joined In Harnage, the court ruled "that a Robersonv. Allied FQ1111dry& Ma­ under Rule 19(a), ARCP. jury request to view the hands of the clzinery Co.. 18 ABR 1294 (March 9, defendant, who was charged with 1984). In a case of first impression, the murder by strangulation, came too late Supreme Court held that an employerof because the case had already been work release inmates has no "special Recenl Decisions of the presented to the jury and any member duty" to supervise or control these in­ Supreme Court of of the jury had had the opportunity to mates outside the scope of their em­ Alaba ma-Criminal observe the defendant's hands during ployment. In this case. the plaintiff op­ the trial, particularly while the defend· erated a convenience store locatednear ant was testifying in his own behalf." the employer'sp remises. During work· Pr osec utor 's reference to defe ndan t's failure to test ify In &zlleasle,th e Supreme Court was ing hours all employees, includingwork further concerned with the fact that release inmates. were permitted to pa· constit utes ineradicabl e prejudicial error the defendant did not take the stand lronize the convenience store. One ev­ which further compounded the error, ening, lwo inmates purchast'CISJJ irits Ex/J(trle Tucker.1 8 ABR130 1 (March because he was forced to stand before from the store, becamein toxicated, and 9. 1984). The Supreme Court of Ala­ the jury and show both sides of his face. subsequently assaulted the plaintiff. bama granted the writ of certiorari in Although sympathetic with the plain­ order to review whether the trial court tiff's 1>light. lhe Supreme Court felt erred in denying Tucker's motion for Knock and announce ... constrained to follow the general rule mistrial based upon the alleged im­ s till req uire d that one has no duty to protect anolher propriety ofce rtain comments made by l:.~rparte Cam1aw11y, 18 ABR !031 from criminal allack by a third party. the prosecutor. During the direct ex­ (February 10, 1984). ln thiscase.cerlio­ amination of a defense witness, the re· rari was granled lo ascertain whether \oVorkmen's comp ensatio n ... cord renecis the following colfoquy: the overruling of the defendant's mo­ comp. carrie, · is not a Q, "Wha t didshe state lo you?" tion to supJ>ress based upon the failure "rea l par ty in inter est" of the police officers tocomply with the Ex Parle:Howell (Howell v. lei man). Mr. Stephens: "Weobject lo what requisites of the "knock and announce 18 ABR !050 (February 2, 1984). The she stat ed to him. She'.,here. may it pleaset he court. Sheca n tellwhat she statute" while executing a search war­ Supreme Court was asked to consider /old him . " rant was reversibleerror. whether a workmen's compensation Here, the officers asked some chil­ carrier which paid benefits to an em· Mr. Culpcp1>er: "Judge. wcobjcctto dren who were inside the screened ployee is a "real party in interest" the remark just made by Mr. Stephens." porch the whereabouts of their father. under Rule l7(a), ARCP, and accord· Upon being told that he was in the ingly. required 10 be joined in an em­ On appeal the State ar&'t•edthat any house. the oflicers, seeing the defend­ ployee's third-party action under Sec­ prejudicial impact was eradicated by ant inside at the time, entered the resi· tion 25·5·ll , Au1.C11de 1975. Rul e 17(a) the trial court ·s instruction to disre- dence and. displaying identification.

TIU' 11lflba11u1/nwyi •r 147 handed Lhe defendanl a copy of Lhe a separa te sente nce proceeding is S<.>etion 13A-6-2(a)(I) rec1uires inten­ search war,-ant. It was clear from Ih e ,·equired. tional conduct and Section 13A·6-2(a) record that the officers who entered the The Supreme Coun of Alabama (2) requires reckless conduct. On the de(endanl ·s home l hrough Lhe rront 1hroughJusticeAdams held that only a other hand, Section L3A,6-2(a)(2) Iuni , screen door neither .. knocked nor new se11/e11ce proceedingis required on versa! malice murder I requires a show• announced." remand to the trial court.Justice Adams ing that the defendant's conduct was The Supreme Court through Justice reasoned: directecl at human life in general as Beatty rcjcct~'­ dictment was intentional murder. The Warnings. he admitted that he had peals entered a decision reversing both court Slated in pert.inenl part: committed the rape and murder. The the conviction and Lhe sentence of The difference betwt,enhomicide by defendant was later indicted for first death because a juror had been impro))­ rockless conduct manifestingextreme degree murder and he sought to sup­ erlyexcused for cause as a result of her indifference10 h uman life, sometimes press the confession made to Lhe proba­ opposition to the death penalty. The referred Lo as ··universal malice tion officer on the ground l hat it was murder"a nd "purposeful" or" know­ Supreme Court granted the State·s pe­ ing murder.. was set forth in Nor/Jr. obtained in violation of his Fifth and tition for a writ of certiorari. illgtu11v. Stoic,413 So2d 1169, 1170 Fourteenth Amendments . The Minne­ The sole issue raised by the State (Ala. Crim. App.1981 ). sota trial court found that the defend­ was whether the jury exclusion error ant was not in custody at the time of ITlhere are se,•e,-al dmerences be­ under f.Vitherspoo11v. Illinois necessi­ tween inLen1ional murder, Section the confession and 1hat the confession tated a new guilt stage trial when, 13A·6-2(a) (I) and reckless murder, was neither compelled nor involuntary under Alabama's bifurcated procedure. Section1 JA-6-2(a)(2). despite the absence of Miranda Warn-

1-18 Atay 1984 ings. The Minnesota Supreme Court business records ordinar ily are not must be init iated by him. Edwards v. reversed . privileged because t hey are created Ariw11a.App lying Edwardsto this case, On writ of certio rar i, the Unit ed voluntarily and witho ut compuls ion. lh e Court of Appeals for the Eig~th States Supreme Court held that a state· The Court reasoned as follows: Circuit found that the police had acted ment obta ined by a probat ion of(icer in unconstitut ionally and reversed the As we noted in Fisher. the Fifth a noncusLect, when ar· In sum. f,tlwnrtlsha s liulc to do with the truth-finding f u net iono f the crimi­ 1980a grand jury , durin g the cour se of rested on unr elated charges , made in­ cr iminating state ments to the police nal trial. and the rights it is designed an investigation of corruption in award · to prote<:,t may still he claimed by ing coun ty and mun icipal contracts, about the homicide af ter the police had those,vhoseconvic Lions precededthe served five subpoenas on the respon­ twice renewed interrogatio n despite decision. It would be unreasonable to dent. Stu mes· invocat ion of his right to e>q:>ecllaw cnforceme:nla uthorities counsel. While Stu mes' appea l was lo have conducted themselves in ac· The resp0ndent fileda motion in the corda nee with its brightline rul~p rior F'ederal Dist rict Cour t seekingto qua sh pending, the Supreme Court held that lOi Ls announcement: and reLroactive the subpoenas. The Distr ict Coun once a sus pect had invoked his right to application would disrupt the admin· granted the motion except with respect counsel, any subsec1uent conversa tion istration of justice. D to those documen ts and records re· quired by law to be kept or disclosed to a public agency. T he Distric t Court fo. cused the issue by stat ing: "Th e rele· vant inquiry is ... whet her the act of produc ing the docume nts has commu· nicative aspects which war rant Fifth Amendmen t protect ion." Th e Court of Johll M. Milli11g,Jr.. David B. Byrne.Jr., Appeals for the Th ird Circuit affirmed. a member of /he a member of the The Supr eme Cour t in a split deci· Mo11/go111eryla. w Montgomery law firm of Hill . Hill . sion affirmed in part and reversed in firm of Robiso11& Carl er, Fro1 1eo. Cole part and remanded. Justice Powell's Be£wr. receivedhis & Black.recei veil his B.S. and LL. /3. de· decision extends the ratio nale of Fisher B.S. degreefrom Spring Hill Collegcm1d greesfr,im the University of Alabama. v. United Stales, 425 U.S. 391 (1976) to j.D,from !he U11ive1-silyofAlabam a. As He covers the cri111i11allmv /)orlio11of sole proprieto rships . In Fisherthe Su· a co-aullwr of sig11ifia111/rece 11/deci­ sig11ifiCf111/ recentdecisions. preme Cour t held that the conte nt s of simts, he covers/h e civil /)or/ion.

1'1,eAlo/x111u1 U1w)·tr 149 cle opportunities

14-18 4-5 IABOR !AW AND IABORARBITRATION SUCCESSfULINJURY PRACTICE Den\'.r Hiltoo 1M.Dallas Sponsored oy: Soothwestm, 1.eg., Sponsoredlly c.mu,nogetau.= Credits· 11.4 Cost. s,:35 FounclJuon Far :n!arrna11on, (415) 3<'.64-1!,7 Fu lnfOrmaUon: (214) f:J3(}2317 6-9 15- 16 PRETRfALAND TRIAL TACTICS The Fairmont.lliew Oi1eans FEDERALTAXATION OF ESTATES AND 21-22 SponSOfl'dby, DefenseResrorrn lnst111M GIFTS For lnformauon:(414) 212·5995 Holton.Birmingham LITIGATIONOF A PSYCHICINJURY CASE Sponsoredby, TexasTl.'dl Unlv..'l'Slty l.QngWhart Maniott. Boston Credits: 12.0 Cost: SZ70 Sj)ollSOrl' KnickErtJockerHotel. Chicago 25 friday Fee-Information,702) 78'1-6012 Sponsorroby: DefenseRl.>seatth lm'tltUtt DOMESTICRELATIONS PIIACTICE Crecit.S!I 53 Cost:SZ70/n,emlle~: ArSt Alabdm.,Bank. Birmingham SZ75tnonrnembefs Sporuoredoy, Birmongnam BarAs50ciatlon For lnformatJon:(4141 Z72-5995 crro,ts· 3.2 Cost: SZOtmembers: S30/ncnmernbers - IN\'EST',IEl,TUMITTD PART'IERSHIPS Fer 1nformatmr"(2051 25 H!006 ---·.. 19&1 Hilllln.l.i"1! BuenaVcstJ. Flanda Oll. GASANO M INERAL!AW Sponson,d II/' AmencanBot l\s:;oci;ttlCJl ()ai1ty Inn. V.ati. 14-15 um"tS. 16.5 Cost: $350/rr.embe'S. Soonsc(l!d 0y. A:allamalnsutute rorCLE SECURillESREGULATION $375/ncnmemDeB Credits: 63 Cost:S6S Fairmont Hore· D,l .ss For ln'ormall"'1: {312) 56747?.S for 1r;:01matlOIJ,(205J 3'18-6230 5;)cn$Ored!ly: SeInn. Dallas Hyanon Union Squ,n. S.JnFfllnclsco Spcnsored IJ)I:SoUlh\\=em Legal Sponsareo by: Alabama Youngl,.ll~-r. and Sponsoredby: PractisingL'lw lnsutul, RlundatlOn Alabamalnsntuto !or CU: Credits; 13.2 Cost: S360 ForInformation: (214} 690-2377 For ln(ormatlon:(205) 348-6230 For lnfcrmatlon:Ill?.) 76!; 5700

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lnO l/1,v /VB I 29 friday 12-14 ECONOMICAND TAX CONSIDERATIONS ANNUALMEETING IN SETl'\JNGA CIVILLAW SUIT R'ivefvlewPlaz.a. Mobile First AlallamaBani<. Bimllngllam SpoltSOlllO by; AlabamaSm• Bar Sw-td lly; Bimllngham BarAsslXlatJorl Fu tmmnallOll:(205) 26'.l 1515 Credits: 3. 2 Coot:S2D/memllefS: $30/ncrunemt>no F1Dl1C1ARYIAW NoM·NeSll!ffl i.i1versty, Ollcago Sponsored by; "3tlon;i; Olllt.'g!! of Menile Hilton Head Sj:>o(L!.llledDy: NauonaltnsnWte tor Tn.i Justice Spo,ISQtd'rlJ. teu::o! arorg,.. ~­ For lnformatlon:(702) 7&:-6012 Credits: I 0.8 C11!1l!ts:19.8 For ln!orTr.allOO:(.:Q4) 542,2522 For ln!mnatJOO:(612) 292-9333 22-23 8-27 20-28 TRIALADVOCACY ADVANCEDMEDICAL MAl.P!IACTlCE: INSURANCECOUNSEL TRIAL ACADEMY UO!Vffiltyof Colorado.Boul

161 prep.1rematerials are short-changing their audit•nces. Com.'tms in this area should be directed Lothe lecturers. the seminar sponsors. and the MCLE Commission. Participants in an approvedactivity CLE mw.t begiven the opportunitr to eval· uate lheelfecth ene:,sand usefulnessof 1he activit) and a summary of the re­ sults must be fol'\vardedto the Com· mission. Partlci1,an1s who take the rograms where lull Ma,·ch6, 1981. some criticisms and a cross-d1sC1plincbasis. credit is claimeddefeats the goal or im· suggestions r(;!.rardingnrnndatory con · Quality written materials. complete proved competence 10 practice law. tinuing legal education had not pre­ with citations where appropriate, must Cr~'' two members of the Bar's staff. wilh gui­ dance from 1hc Bar's executive direc· ~lury L)•n Pike, ~tort director of the MCLE Commb,•ion and commillee liaison of 1hc Alabama . S1a1e BM. joined witb 165 oLhcr locnl 1111dst ale bar officia l~ lrom tor, the prcs1dcn1.and the chairman of ucross 1hc cou111ry 10 parti cipate in th e ABA'snnnun l Bur Leadership losti1ute in the MCI.ECommission. Chkago. Morch ' t 5-17. Those at1e 11ding re,•icw e cl luw ,re lnled iss ues nffecting the lc,Jnl profc~sion and the publi c and learn ed ccchni,1ucs for improving bc.,r Allactivit i cs approvedfor credit must assoclotion n1unnJ,!c1ncn1 of s uch issues. Pic1urcd \\tilh ~1ury Lyn Pike arc (L to meet certain standards. Por example, R) John C. She ph erd, 1>rcsidcnt- e lect <>f rhc AOA: W11l1cr n. llynr s , prcsidc111- an activity's primary objec:Livemust be c lcct of rhc Alabumn S1111cBar: and Wullncc O. ml c)' , ,\11Apr es ident .

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n February 22. 1984. LheSu­ Bargaining Agreements: J)rome Court of the United OStales ha ndecl down its land­ mark decision of h, re /Ji/disco, 465U .S. -- (1984), which addressed the ob­ vious ronnicts between the National An Analysis of In re Bi/disco Labor Relations Act (NLRA) and the Bankruptcy Code (Code).Amid much publicityand commentary from union and managementadvocaLes, the Coun ruled unannnously thaLa bankruptcy coun may permi1reject ion of a collec· tive bargainingagrccmc:mL if the deb1or­ employer can show lhaLthe agreement is burdensome and that equities bal· ance an favor of rejection. In a more controversial five-man ma­ jol'ity decision, the Court also ruled that a debtor-employer does not rom· mit nn unfair labor practice by imple­ mcn1ing a rcjecLiono r modificaiion be­ fore obtaining formal approval of the bankruptcycourt. Accordingly.the Na· uonal Labor Relations Board (Board) ma)' not enforce the agreement by a charge of unfair laborpractices against Jo/111A. Wilmer is a mrml>rrof ll1c /11111/svilltlaw the debtor. fin11of &II, l

Applkab le Ba nkrupt cy La w:

Tau,c-el/T. Sltcpart/is a mrmb<·rof /ltc /11111/si•illt When a pc1i11onfor reorganiza1ionis law firm of /kl/, kicl1ardsm1,Hcrrillg/011, Spork­ filed under Cha1>tcr11 of the Code,an ma11& She/J(,rd,P.A. li e holds 11 R.A./rom Darl- automntic stay issues from the bank­ 111011//, Co/J,-ge1111d Cl J,J), from /1,c U11foersily of rup1cyco urt 10 halt all acts or proceed­ ~1/aboma.fi e /msscrvcd as a Tntslcc i11Bankruplcy ings locollect,assess or recovera claim for four Jl!ll rs 1111tfis sl'crr:lary of /he Slate Bar Com- against lhe debtor arising before the 111ilt11e 011l*111kr11plr y I.mu. petition was filed. 11 U.S.C. Section lfi l ,\ltt)' 19$4 362(a). The purpose of the automatic ages arising from such breach." Collier RLA collective bargaining contracts slay is to give the debtor temporary 011 Bm1kri,ptcy,Section 68.02 (15th ed. from the purview of Section 365. "T he relief from the pressu re of its creditors 1981).See 11 U.S.C.Sect ions365(g)a nd subject of railway labor is too delicate and an opportunity to create and im· 502(g). and has loo long a history for this Code plement a reorganizat ion plan under Only within the last fifteen years has to upset esta blished relationships." H.R. which its unsecured creditors would there been a concerted effort bi•co urts Rep. No. 595. 95th Cong., !st Ses. 423 receive more than by liquidation under and commentators toarriveat a pract i­ (1977). Other types of contracts specifi­ Chapte r 7. Reorgani1.ation provides the cal definition of the term "executor')! cally excepted by Coni,rress as execu· opportuni ty to try a var iety of mea­ contract" for use with Sect ion 365 or its tory contracts are shopping center sures, such as paying off open account predeces.<;<>r, Section 313. It has been leases.11 U.S.C. Section 36.5(b)(3),and debts over a period of several years, defined as "a cont ract that has not as commodities futures contra cts, 11 renegoliatingtheamountand frequency yet been fully completed or performed U.S.C. Sections 765 and 766. of mortgage pa)'ments and rejecting .. . the obligat ion of which relates to the unexpired leases and executory con­ futu re." Block'.~Law Dictio1101y(5th ed. Applica ble Labor La w: tracts . 1979) at 395. However, Professor Vern Section 365 of the Code provides au­ Countr yman of Harvar d Law School Employers who ignore collective t hority and guidelines for the assump­ proposes a better definition for bank· bargain ing agreements commit unfair tion or rejection of an exccutory con­ ruptcy purpooes, that the re must be labor practi ces and subject themselves tract or an unexpired lease by the trus ­ current ly unperformed material obli­ to investigation by the Board. In effect. tee or Cha1>ter 11 debtor-in-possession. gations by both the debtor and the non· the Nat ional Labor Relations Board en­ Suc h action may be take n, subject 10 debtor part y to the contract. In accord, forces terms of a collective bargaining approval by the U.S. Bankrupt cy Court, the legislative histo ry on Section 365 agreement by permitting unfair labor at any time before t he confir mation of a states that "performance remains due practices against parties who unilater­ plan of reorga ni1,ation. or it may be in­ to some extent ·on both sides." Thu s, a ally modify or terminate the agree­ cluded as a provision of the plan . 11 promissory note ca nnot qualify as an ment. Cf NLRB v. Ka/2.369 U.S. 736 U.S.C. Sections36:>(dX2)andll23(bX2) . ''executoryco ntra ct" underSeciio n365 (1962). U neither approach is taken by the because one party has already pe.rformed Mid-term cancellation or modifica­ debtor-in-possession, the other party to fully. tion of a collective bargaini ng agree­ a contract or lease may apply to the Union advocates have repeated ly ment has been held by the Supreme Court for an or·der direct ing that the argued t hat Congress did not intend for Court to express ly violate the NLRA. contrac t or lease bea ssumed or rejected Section 365 to app ly to collective bar­ SeeNDRBu. Tns1m111ceAge11ts11lt ema­ within a reasonab le period of time. See gainin_gagreements. Unfortunat ely, the tio11alU 11io11. 36.1U.S . 477, 488 (1960); Philadelphia Co.v . Dipple, 312 U.S. 168 legislat ive history of Section 365 does an d H.K. PorlerOimpanyu. NLRB. 397 (1941). not reveal Congress's true intent. U.S. 99, 108 (1969). Section S(d) of the The authorit y of bankrupt cy courts However, three years prior to the 1978 NLRA, 29 U.S.C. Section 158(d), pro­ over executory contract s and unexpired enactm ent of the Code, the U.S. Court vides that mid-term modificaiion or leases has been ,·ecognized as far back of Appeals for the Second Circu it de· termination of a collective bargaining as the Bankruptc y Act of 1898. Section cided in two frequently cited cases that agreeme nt is prohibited unless the 313(1)of that Act stated that upon the a collective bargaining agr~-emenl l'Ould part y: filing of a petition for reorganizat ion be rejected as an execuior y contra ct "the Court may ... permit the rejection under Section 313 of the old Bank­ ( t ) Serves a wriuen notice upon the of the executory contra cts of the debtor rup tcy Act, predecessor to Section 365. other party to the contract . . .; .. ." 11 U.S.C. Section 713(l)(repealed) . T he failure of Con!,tress to take any (2) Olfers to meeta nd confer with the Other party ... : As u~ I in the old Bankruptcy Act. the act ion to nullify these decisions when it (3) Notifies the Federal Mediation and terms "assumpt ion" an d "rejection" enacted the Code is significant. See Concilation Service.,.: gained clear working definitions. As· Shop,11011s ux ·al U11io1111. Kevin Stee l (4) And continues in full force and sumpt ion of a contract or lease signifies Prod11cls. Inc.. 519 F.2d 698 (2d Cir. effect wi1hout resorting to sirikc that the debto r-in-possess ion ''has 1975); Brotherhoodof Railway, Airline. or lockout all the wrms and condi­ lions or Lheexisti ngc ontract fora agreed lo perform theobligalions there­ nnd Sleamship Clerks 11. REA Express, periods of ixty days alter such no, under. and that any breach of such 523 F.2d 164( 2d Cir. 1975) cert. denied ticeisg ivcnoru nlil theex piration obligations will give rise to an allow­ 423 U.S. 1017( 1975). date of such contract. \\1hichever ab le claim against the estate having It is equally significant tha t Con· occurs later ... priorit y as an expense of administra· gress did give special treat ment to tion over the cla ims of unsecured gen­ other types of contrac ts in t he Code. Although other terms of an agree· eral creditors. Rejection of an executory Section 1167 protects a collective bar· ment are enforced under Section S(d). contract or unexpired lease constitutes gaining agreement that is subject to the the Board has recently refu sed to apply an election . .. to breach the contrac t or Railway Labor Act. The legislative his­ the charge of unfair labor practices lease. and subjects the property of the tory of this sect ion reflects that Con­ beyond express contractual language. estate to an allowable claim for dam- gress intended to specifically exempt In Milw(lukeeS pring, Divi.

'/'heA/0/)(1,1111 U11t~\'l'r 155 11oisu,i/ Spring Com/xmy.268 NI.RB Previo us De cis ions: largely m 1hehandsoftheroin1»ny's No. 87 (1984).1h e Board held Lha1 be· prolly exis l 100man v 01her cri1icial ln1cr· cause a collective bargaining agreemem "New Ent ity' ' Theory esu,. !hose of other employees.Credi, did not expressly prohibit the transfer tors.and sharehoklers.1 he protcmon oCbargaining unit work. the employer In response to the apparent conl11ct of which prov1desihe s1imulusfor the bankruJ)lcylaws, for this Coun was not rt:quired to oblain 1he union's bel ween Section 365 of the Code and consent IJcFore Lransferring it. 10 t'Onclude that 1he collec1ive bar· Section 8(d) of the NLRA, Federal ap, gainingagreement was meantto hold However. the conlinuing duty to pell:uecourtsdurin g the t970'sevolved a strangle-holdposi1ion. 1otally lm· bargain during the lifeof acon1rac1has "lhe new entity" concept. The U.S. mune from the nei,blhti• provt'dby been strictly enforced since the early Court or Appeals for the Second Circuit Sec1ion 365. days of the NLRA. NLRB v. Sands M(I· was the first Loargi.1e thal a Chapter I I The protection or the employees' intel'­ 1111/acl11ring Com{Xmy. 306 U.S. 332 debtor is not Lhc same legal entity as ests, as the Court pointed out, lies not (1939). The courts have long held that the pre-petition business bul rather "a in deference to Section 8(d) of 1he the exceptions to 8(d) do not relieve an new entity ... with iLSown rights and NLRA. as urged by the unions. bul in employer of Lhedu1y 10bargain, even if dut ies subject Lo the supervision of the tl1e test applied by Lhe bankruptcy 1hesubjccts were ncilhcr discussed nor Bankruptcy Court." Shopman 's Lccol court in deciding whet her to allow re­ embodied in any terms and conditions U11io11v. Kevi11 Steel Products, Inc., 519 jection of the collective bargaining of 1hecontract between the parties. See F.2d 698 (2d Cir. 1975).The new entity agreement. NI.RB v. JacobsAf111111/acl uri11gCom­ was not a party to the collective bar· {Xmy, 196 F.2d 680 (2<1C ir. 1952), and gainingagreen1en1;thu s , it is not bound Th e Rejec tion Tes t NLRB v. Lyon Oil C<>mpony, 352 U.S. by the requiremems or Section 8(d) of 282 (1957). In Katz, supra. at 739, an the NLRA.Thuo, it is free 1oseek rejec­ A debtor needonly present evidence employer's unilateral changes during tion of the agreement by the bank· of burdensomeness Lo reject an ordi­ the term of 1he contract were con· ru111cy court under Section 365 of Lhe nary commercia I contract , bu L both demncd by the Su11reme Court: Code. This concept placed the debtor· courts and commenLators have agreed in-possession in lhe position of a sue· for years that this "business judgment" A refusalto ncguua1e anfad ai. 10 cessor employer. who is required to nc· test i$ insufficient to protect the rights any subjectwhich ,s w11hinSection of employees under a collective bar· S(d)aml about which lhe union seeks gotiaLe with the collec1ivc bargaining to nt'i(Olia Le. violmes S(a) (5) even unit but is nol llound by the b.1sict erms gaining agreement . However. the for- thoughthe employerhas every desire or the prior agreement 10which it was to reach agreemenl Withthe union not a party. uponnn overallcollec:ti,·~ agrttinCnl and 1mrnes1lyand in all good roiLh More recent decisions have attem1>­ Wedo more bargains LOt hat ~nd. ted LOl imit or do away wi1h the "new entity" theory. In a l976 case. the Se­ thanprint the law­ Although the Federal courts ha\'e cond Circuit restricted the theory's ap, we putit dC\•clopeddistinctions between man­ plication to collective bargaining agree­ datory and pennisslvc subjects for bar· mcms, but this did little lo cure the intoperspective ... gaining. subjects that "vitally affect" weakness or this legal fiction. As Pro, employees are always obligatory sub­ lessor Countryman points OUl,it is un· .. . both In our law books and our jects. See NLRB ,,. 8o'l,'-IVan1er, 356 acceptable "that rights aocorcledtoem · computer data service U.S.342(1958);NL/?B v. Amcn:C011Na­ ployees pursuant to a collective bar· Wh41ther 11•, wnh ALR. Am Jur. uses.L Ed­ or Auto-Ch.. . out compuuu for-mattod roJCNlrch tio11alI 1wtr1m ce C<1111/)(111y,343 U.S.395 gaining agreement executed pursuant servlc.-your reseere.hw lll go lasto, and ,noorydevised and applied wNit't ~tlbleand •"ord1.bloin 1og11, .... reh Hero, what the LCP To,~I C1len1-Sorvlc:.oL ib· mem." l.lurg,ll' amer. supra. al 360. solely for the purpose of destroying ,a.rye ofltrs t.he Alabama 11tomey . LCP loc alll ed boo k, fOt Al1b•ma:: Th e last obsla de to modifying a col, those rights." 57 Am. Bankr. LJ. 30'l. ...,._~ PalWtYI,_., lnttJutilOM~Crttt lective bargaining agreemenL is es1ab­ In April 1983. the Eleventh Circuit Ttiill ~ kWAWt,a,u Uwy,en, 1.CP nalklMI boob: lishmg the existence or an impasse. Af. was the first 10reject the "new entity" -"".liir H Am Jut l-OIII F0trns 2d ter parties have properly engaged in theory in favor of the obvious Congres· Am Jur Plcraellfl9a Pt•ol'I:•ro,,... "exhaustivegoocl raiLh negotia1ions" to sional intent for bankruptcy law to Am Alt 1'100f ol fKt.l Fotrnt.. L Ed ~.. NA J..lf Tri.ls rediWaJPJOCN.-.. l '"-'" reach "im.'COncilable differences." an overrule labor law in certain situations. Al.ft S,,.9effl ~pky ..,.... l Eo impasse is said to exist. Compare l~lttr /11rr Bradaii/ii/er Freight 1,,c, Contec:1y our LCP repres.entatfy•: Systems. C...-tNII Al__. HicM'lh- t Al...,_. Telcvisio11,In c. v. NLRB. 317 F.2d420 70'.! F2d 890. (11th Cir. 1983). Judge BnimAool,1 0\1"'9 T latlell•11011 {20!Htl1·1l• I lfHSJ7&2$99 (6th Cir. 1962). When an impas~e oc­ Tu ll le $lated al page897for 1he Court: ...... Sooll, AJIIIMlm., R....1.1,MII, .... COUl'lt f curs. Lht employer may make unilat ­ (206)...,..714 .(olO,c} .-»..tm eral changes consistem with its offers Wedo llbl co111eroplatcthal Congre;,.s Otl l AW'f'O.S CO O,:f l 4ffil ,VIUSHt .NC CO. 10 the union. Compare NLRB v. Katz. mten

156 mulation of an acceptable test for that negotiateda collectivebargai ningagree­ sion, the Supreme Court found that the situation has be(:n difficult. In Kevi11 ment that would expire in April 1982. language "executory contract" in Sec· Steel.supra, the SecondCircuit declared Smee January 1980. the debtor had lion 365includes collective bargaining that a bankruptcy court may approve failed to meet severnl of its obligations agreements and that the test for rejec­ the rejection of employment contraets under the agreement, including the tion should bewhether the debtor can only after careful scrutiny and balanc­ payment of health and pensionbenefits show that the agreement burdens the ing the equities on both sides. In a case and the remittance 10the union of dues estate and that the equities are in favor decided only a few months later. the collected.and in May 1980,the debtor of rejection.· rhe Court stated: same court added the addit ional re­ refused to pay wage increases called for quirement thaL the bankruptcy court in the agreement. Instead. the debtor The standardadopted by the Court of must find that lhe burdensome collec· requested and receivedpermission from Appealsfor the S«ond Circuit in the bankruptcyco uri to reject the agree­ REA Expro:ssis fundamentallyat tive bargaining .igrcement would oth· odds with the policies of flexibility erwisc defeat clfons to save the failing ment. and the union was allowedthirty and e<1uity built into Chapter 11 ... company from collapse. Brotherhoodof days in which to file ;i claim for dam· We agree with I he Court of Appeals Railway,Airli ne. amt Steamship Clerks ages stemming from the rejection. The below.and wilh the Court or Appeals ~-REA Express.523 F.2d l64 (2d Cir. U.S. District Court upheld the order for th~ EleventhCircu it in a related approving rejection. c:,se, FJrada,Millrr•.• that the Bank· 1975), cert. denied423 U.S. IOI7 (1975). ruptcy Courtshould permitrejection Apparentl> the Court did not reali1.e In the summer of 1980,the union of a collectiveborgaimng agreement that this strict requirement makes it filed unfair labor practice charges with under Section365(a) ol the Bank· almost impossible for a bankrul)ICY the Board.which found that 1hedeb1or ruptcy Codeif the debtorcan show court to balance the interests orem­ had violatedScctions8(a){5)and S(a)(I) that the collecoveborgaining ~ ployees. creditors. shareholders and the NLRAby unila1erally changing mentburdens 1he es1a1istr ict Court's order and the The Supreme Court declared that may be impossible to predict the suc· Board'spetition for enforcement of its 1he policies of 1hcNLRA are adequately cess or a reorgnni1.a1ionuntil very late order, the Third Circuit held that a col­ served if the bankruptcy judge finds in the proceedings. Second. the court lective bargnining agreement is an ''ex­ that reasonable efforts 10 negotiate a ob5ervcdthat the Nr.'A£.rprmrequire­ ecutory contract" subject to rejection voluntary modific.itionhave beenmade ment "unduly exalts perpetuation or byadeb1or,in•possessionunder Section and are not likely to produce a proml)I thecollecti.-ebargainingagreementover 365(a) or the Code; that the debtor's and satisfaetoryr esult. The bankruptcy the more pragmatic consideration of rejeclion of the agreement was not court must then determine that the pol· whether the employeeswill continue 10 qualified by Section 8(d) of the NLRA; icy or Chapter 11 ,voutd be served by have jobs at all." Id. at 80.This position and that to obtain rejection a deblor-in­ rejection or the collective bargaining was also adopted by the Eleventh Cir­ possession musl show that the agree­ contract. In balancing the interests or cuit in Brntln Miller. s11pm, as the only ment burdens the estate and that the the debtor. the creditors and the em­ view consistent with the Federal bank­ equities balance in favor or rejection. ployees. the Court "musLco nsider the ruptcy policies undcrli•ing the Code. The Court rcfust'

157 until plan confirmation to accept or re­ able considerations.The first is the po, will be allowed Lostand is uncertain. ject an executory ronlract. and a Chap­ sition or the Board that Section 8(d) however, as Congress is already being ter 7 liquidation. in which the trustee should remain applicable after a peti­ lobbied heavily by uni-Onreprcsenta· has only s1x1y days after the pcu11onis tion is filed.which he found compelling Lives10 pass remedial legisla1ion.Con· riled in which 10make such a decision. because of I he Board's "special under· gressman Rodino of New Jersey has Justice Rehnquist wrote: "This differ· standing of 'the actualities or industria I promised to introduce a bill which cncc between the two types of proceed· relations.' " 1,1. al IS. The second con­ would set a more strict standard for ings renccts the considered judgment sideration is the '\ hrcal to labor peace" rejection than that heretofore applied of Con1,trcsstha t a deblor-in -posscssion which Brennan saw in application of by any <:0url. seeking lo reorganizesho uld bcgrnnlcd the majority opinion. In a foowote, In the meantime. Federal courts will more latitude in deciding whether lo Brmnan cited wilh considerable alarm consider many related issues. such as Tt/jecta contrae1 Lhansho uld a trustee a newspaper article describing the whether the Norris-La Guardia Act in liquidation." The Court also noted strikes which followedunilateral wage prevents a bankrup1cy courl from en­ that since the claim of damages arising reductions by Chapter 11debt0rs Con· joiningemployeesfromstrikingagamsl out of rejection of a collective bargain· tinental Airlines and Wilson Foods a Chapter 11 debtor, Cf. .Ila/la of inKagreement must be made through Corporation. Brennan closed his opin­ Crowi!1111d A=iales. luc .. 713F.2d 211 the bankruptcy courl. the Board is ne­ ion with the comme111 " I do not think (6th Cir. 1983)(dissolvinga bankru1>tcy ccssurily precluded from enforcing the that the prospects for a successful re­ court injunction) and wln11righL if agreement by filing an unfair labor organization will be seriously impaired any, n union has as the collective bar· 1>rac1iccchargeag-dinslth e debtor. The by holding that Section 8(d)conti nues gaining re11rcsemative of the employees majority opinion reasoned that from to apply." Id. at 20. to participate as a party-in•intcrcst in the Cilingofa bankruptcy petition until the bankruptcy case or the debtor· employer.Cf.lure Altair Airlines. fur .. lormal acceptance, Lhcllcctive bar· Concl usion: gaming agreement is not an enforre­ BK No.82-53399G,Mem0<'3ndum0pin­ able contract within the meaning of In the Bi/disrodecision,Lhe Supreme ion (denying the application of the Air Sect ion S(d).Thus. the debtor nt.-ednol Court 1,,aveits approval to the most Line Pilots Association to join the comply with Section S(d)o r bargain 10 sensible porl ions of recent appellate commi1tec or unsecured creditors). impasse under Section 8(aX5) before court decisions in I his area. Whether Undoubtedly, there is much more lo scc•king ihe bankruptcy court'~ per· this rational and practical approach come. D mission to reject the agreement. In the majority opinion. Justice Brennan approvedthe Court's rcpudia, tion of the REA Exf>= rejection re­ Introduce quirement and Lhe "new enllly" legal fiction but argued Lhat penniuing a debtor lo aher a collective bargaining Your Clients agrl'Cmcnl prior to couri review se­ riously undermines the goals of the toa Nl, RA. lie found no legal l>nsis for the mojoriLyconclusion that the collective bargaining agreement is not an en­ Valuable Service . forceablecontract within the meaning or Section8(d). stating on pages11 and Refer them to Business Valuation Services for expert 12: determination of fair market value of businesses, financial analysis and consultat io n in cases of: I IJf1hc dcblor-in-l)06SeSSion a

l;!! ''"' l!ISJ THE INTEREST RATE ON MATTHEW BENDER CHARGE ACCOUNTS ISA NICE, ROUND FIGURE.

Ourextended terms payment plan gives you more purchasingpower. Without charging you a centof interest. r------~ AtMatthew Bender, o ur aimi s providingauthori tative I NSTALLMENT PLAN I:; lA.S·• : informationto giveyou every lega l advantage.But we PAYMENTSCHEDULE - l a lso offera significant financialadvantage. M.a.rTHEW I If your Yourmonthly BENDER l Becauseou r extendedt ermsplan gives you more balance is: pa,ymeolwUI be: WIIDITIii MAYEIIICIM Nlll .. . YOllltAYE 1101E flMI , purchasing Jl-0"-Crthan any othe r. S0-$999...... $ 50 ro: MldlaelS110<, Matulew Bender Webegin by u singyo ur balanceto determinemonthly $1000-$1999 ...... $ 85 235E .45111Stntet,llew Yol'lc, Ill 10017 payments(see chart). Dependingon what that bala nce is, $2000-$2999 ...... $125 Plase ml! meturUler l•fommloo .. youcan add from $999 to Sl,999i n newp urchaseswithout $3000-$3999...... $175 MATIIIEWBEIIOEll 'S raising)'OUr month ly payments bya dime. $4000-$4999... .••. . ... $225 EXTENOEDTERMS PAYMENT PUN Andth ere'sn o interest,no carryi ng chargeswhatsoever. $5000-$5999. . •• ••.• ... $325 Name______\bu canbuild your professiona l librarywith fewer in ­ $6000-$6999.. •.••... .. $400 creasesin yourmo nthly payments. Andp lan thecoming year~ $7000-$7999...... $450 Firm______budgetwith a clearerid ea of whatyour payments will be. $8000-$8999...... $500 Address ______for more details, clip the coupon andse ndit to us. $9000-$10,999...... $550 MatthewBe nder.Coun t on us to g~-eyou a legaledge. $11,000-$12,999...... $675 City State_z;p_ Anda financial one, too. $13,000-$14,999...... $775 L----Telepllone------J ll,...,.------ABA London meeting , July 14-20, 198 5 The Ameriean Bar Associationwill shortly be !;ending.out the registra· lion lo~ms!or the 1985Annl(al Meet· ing in I,;mdon. This extended meeting

160 Moy 1984 and lodgingare indudl~I in the IN- you send rhe initial dues in the TRAV program. Thij cosr will be ap amount of SLS.These dues will be proxunatcly$2,ktrip. obtam speakers m the Family Law an•a. Send your chl'Cksin the amount or $If, payable to the Famil)·Law Sec- 110n,P.O. Box2J.II. B1rn11ngham. Alabama3S201 ·214 L ..• The first officersor the Sectionare '-am Rumore.Jr .. or Binningham, s.: Medi ca l exa mine rs ad o p t ... chairman: \'anrena Penn Durant of rul es for p .c.'s ~lontgomcry,vice pre,;ident;Jerrilee I The State Board of M,·'(.'0pathsfile copk"' or hmirporation Ma lan d ro ma teri al s availab le Vl documents and non-financialll()rtmns Comments from "best l;l?minarI J of annual reports with thr State hav,•ever allencted"to "Sufll'r,could l Boordof M11dical l~xammt•rs. have ~pe.mthe whole clay" to "l wish 0 Atl()moys and other persons inter all CL£ were this interesting" fol· R' ested m obtaining copi!'-Sllf the rules lowc,(iI.Metta Malandro's l':$yc/1Q/ogy g,"' should address requests to Exc-cut1vc ,1;a Trial seminar presented at the " 1111111111 Director.Stat(' Boardof lvkdic.11Ex· MidyearConference of the Alabama i am mcrs. P .0. ll<>x9<16. :'vluntl,(Omcry, State Bar. > Alabama36102 (205-2(il-4 I 1 6). M11landro.who has conductt.>dex· " tensive rcS<-arch1nto the visual de- J taib which influencejurors and that may uhimatdy affect the outcomeof trials. advised lawyers on how they I and their d1tnts and witneses can make favorableimpressions in the I Ne w sectio n on famil y la w courtroom. The Alabama Statt' liar Commlltt'I.' Mawnals prmted m connection on Famil)·Law has dctcrmmt'1ictt'Chniques for persuasion. La" and tht: Lawof Uome,,ticRcfa. kincsic and ,·erbal beha, iors indicat lions. Tht' cc,mmntechas adopt,,.!by- 1ngemollon or situational anxiety. law~. has ckctcd offircrs. ha, l)l'llti· and mot1''3UOJ!Jurorsthrough open- oned the Boardof Bar Comm1,,,,1oncn;mg ,uuement::..are a,,ulable through for SectiQnsratu~. and has made the AlabamaState Bar. Send your plans for a program at the .\labama check for $5.00 made out to the Ala· State Bar Annual Mt>t>IIOKm July. bama Stale Bar to P.O. Box 6il, ~ The f,rst s'e1s now S<~ !,frat,'Jli,'>for Rap/)ort.l'o11.'t'r. a,1d Per- - liciting charter mrmbt·r~. sll1J$t'u11 bookl<•twill only beavailable ..... The Family Law Commitlt'e lnvlll"' while thl.'current supply lasts, so -I you to join the Section and a8k that order SOlm. - -..

1'J,1Alabo,,u, l.111•'J'r,. 161 the reasibillty or a manda1ory intern· ship program for law school graduates. h has voted unanimously Lo support the Bar's decision 10 limit admissions to graduatt'S of accredited law schools. Th e Tas k Force 10 Evaluat e the Lawye r Explosion recently turned Committee Work its attemion 10law school applications and admissions pauems. Interviews with the deans of admissions of the two accredited law schools completed the to Continue task force's information gathering ses­ sions and formal observations and re· commendations will be presented to the Board a1 its May meeting. Th e Ta sk Force on Pee r Revie w isgatheringinformation from prior Bar commillces 1ha1have dealt "~th ques· Lions of continuing legal education. by Mar y Lyn Pik e spccialiunion. advenising. and other matters tha1 rela1e to the peer review he close of 1he 1983-84com· T he 1984 AnnualM eetin g Com­ issue. h is also making inquiries 10 miuee year is approaching. mi1t ee is hard at work on plans for the other bars and to the medical and ac­ Cominui1y has been assured Bar's gathermgat the RiverviewPlaza counting communities regarding their T practices and procedures. According to by limiting membershipo n committees in Mobile.July 12· 14.The Young Law­ Chairman L.B. Feld. the task force's 10those who expressed a desire LOserve yers Section will present a very practi· 1he Bar in par1icul.ir areas of concern, cal CLE seminar on July 12 and will em1>hasis will be on developing a pro, staggered terms for committee mem· sponsor a 1>11rty aboard the USS Ala­ gram lhllt is bmh voluntary and obiec· bers, and cxcellcnL rccord-kee1>ing by bam11that night. Last year's successful Jive. commillce secretaries. "kickoff"breakfast forcommittees will Th e Ta sk Force on the Estab­ Prcsidem-elcct Waller R. Byars has be repeatedon rriday. The general ses­ lislune nt or a Litigation Section re­ already begun 10 build on 1he founda· sions will focus on Laxshelters for law­ cently reported its opinion that such a lion laid by President Hairston. A yers and memory1mprovemenL There section should be formed to provide an commitU.'Cpreference questionnaire was will bea workshop on prepaid legalser· interdisciplinary forum for the trial bar senl to all members last month. In­ vices. the inaugural presentations or asa whole. Efforts1oformasec1mn are cluded were questions soliciting mem­ the Family Law Committee and 1he being made. lmeresled persons should bers' opm,ons on services provided by new Bankrup1cyand CommercialLaw contact Chairman L. Tennent l..eeat the Barand servicesneeded. Commiuec Section as well as the usual informa­ P.O. Box 68, Huntsville, Alabama, appointmcn1s for 1984-SSwill be made tive meetings or 01her sections. In lieu 35804.(205) 5.13.9025, this month and commillee members of the trnditional rriday night dinner will be invited lo 1hc "kickoff" break­ and dance. participants will be Lreated Chairman Richard Carmody and fast tobe held on Friday.July 13.during Lo a nightcap party featuring an array members of the Bankruptc y Law Co111miuce wer<:commendt'

162 .,,._.. 1984 favorable legislative accion on bills in­ the discipline and disbarment o( law· teachers. Accordingco Chairman Larry I roduc:ed on behalf of the Alabama yers be adopted-Lastly. 1he commiuee 8. Childs, the task force believes that State Bar. One bill removes the two proposed a new procedure for l he a1> teachers are a great resource ror coun­ year license (ee exemption granted 10 pointment or lawyers to represent indi· teracting an U11JJreccde11ted lack of un· new members or the Bar; the second gent plaintiffs in civil rights cases. derstanding abouc the system of law raises the annual license tax fromS100 and government in this country. to S150annually . The bills are needed P u b lic ervice Th e Tas k f orce 10 Eva luat e ihe because it has been seven years since Th e Alab ama La wye r Re ferral Proposed Constitution submitted its license fees were raised and, despite Se rvice Board of Tru stee s is seek­ report to the Boardo r Bar Commission­ efficiem operating procedures, inflation ing to increase the number or attorneys ers in October 1983.Pres ident Hairston has cau_ght up with the organization. participating in the service. Education recently requested that the task force For more information. see45 Alnboma of the Bar as 10the advantages of par· continue its service, in view of present /,a111Jer14(1984). ticipationis a high priority. Attention is legislative efforcs at conslitucional The Ta sk Force 10 Study Polili· also being focusedon the twelve coun· reform_ CIIIAction Comminec s has addressed ties chat have no attorneys participat· Th e Committ ee on Legal Se rvi ­ ing in the service. for additional infor· chc legality of state bar PAC's, the ces for the Elderly has formed sub­ mation, 45 Alabama Lhwyer 85 scope of permissible activities. the de­ see committees on the legal needs or the {1984)or call 1.000.392-5660. sirability of an AlabamaStace Bar PAC elderly, education. projects in other and possibleorgani:iation. funccioning, One of the goals set by the Tas k s1a1es, legislacion, liaison with other and governance of such a committee­ For ce on Citizen ship Edu cati on is professions,and finances. Members of Members have reviewed the structure to assisc the Alabama Judicial College chesubcommiLLecsare in the process of and runctioning of lawyer political ac­ in relns1i1u1ing its law-related educa­ developing plans or action on the par· tion committees in Florida, Mkhil!lln, tion program for secondary school ticular topics. D Washington. South Dakota. Illinois, Ohio and Minnesoca. The task force will report 10 the Board of Bar Com­ missioners this month. WE WANT YOUTO Bench-Bar Rc lalion s JOIN OUR SPEAKERS BUREAU! The Committeeon LawyerPublic Relation$,Information and Represemacives of the Fed e ral Med1<1Relaoons is 1ns11tuhnga s1atewioo speaker's bureau 10 Bankrupt cy Coun s Liaiso n Com· proll1despeakers for civk; organizaoons, schools, churchet..ind min ce have met with most of the other mterested groui>=,.The commill~ w,llcompile a !islof all judges on the bankruptcy bench in Ala· lawyursi n the state who are interested in servingon the spc.,k­ b,1ma,ga thering info,·mation on how er's bure<111a nd willendea vor to provide speakers from the s.>me the commiltt-e might help boch che community or general ..rea fromwhich ,, request for a spc-.. ker is bench and lhe bar. The commiuee has receivtod.All requests willbe handled through the Alabama State also met with Arthur Briskman. coun· Bar He.,dquarters. tr you M<' interested 1nserving as a mem~r sel 10 the Senate comminee charged of the speaker's bure.iu please fill out the lollowmgform and re­ with resolving che plight of U.S. Bank· turn 11to the Alabama State Bar, P.O. Box 4Ui6,M ontgomery, rupccy Courcs. This commiuee ,viii Alabama 36101 continue its work within the structure or the new Bankruptcy and Commer, I SPEAKER'S BUREAU APPLICATION cial Law Section. I Members or the Federal Judi cia.ry I Name - -- - Liaison Comrnin ec have met with 1 Firm Name (if applicable) ------­ rcdcral judges across the state. In its preliminary report to the Board or Bar ! Addre$5 --- - Commissioners.the commiuee rccom· ______.Staie. ______Zip __ __ _ mended that federaljudges support the 1 Cit y S1a1e-Federa(JudicialCo uncil and that Telephone ___ ------the Council be inviied to meet during I the annual meeting or the State Bar. It 1 Please list subjeds on which yuu are willing to speak: rurther recommended that the admis­ I l) sion procedureof LheNorthern District I be adopted by all three federal district I 2) courts, that a uniform procedure for I admission pro/,nc viu be adopted. and I 3) that a uniform method of dealing with L__ ------·- - -'

Ui3 They've ma.de their move ...

The Alabama State Bar Association has made a decisive move to strengthen the professional liability insurance pro­ tection available to Alabama lawyers. The Bar has endorsed a program that significantly expands liability cover­ age at favorable rat.es based solely on Alabama lawyer's claims e,cperience.

Professional Liability Insurance, Inc. will administer the new insurance pro­ gram that combines the resources of two major insurers: Dependable Insur- ance Company oyc:fs~l:lon.

Now it's your move .•• To find out more abo~ew pro­ fessional liability ins~ ' program, .._._ contact any Alabama independent insur- ance broker or call Professional Liability Insurance, Inc ... We ~ve satisfied a ole world of sional insurance three keystones of effective insurance: KNOWLE DGE • INNOVATION • SERVIC E

Liabilitylnsuranc gress has granted special tax credits to persons who renovate existing build· i11g.~forcommercialuse. Ahhough these incentives have varied in the last few yCllrs.p resently a special investment tax credit is available equal to 15% of the rehabilitation cost for a buildingal leasLthmy years old, 20.Jf.for the reha· bilita11oncost of a building a1 least forty years old and 25'~,of the rehabili- Tax and Financing Benefits 1alioncost of a cenifi~'Clhistoric s1ruc· 1ure. This special investment tax credit is in the Renovation available to lawyers who own buildings in which they practice or who lease a of Historic Buildings building for more than fifteen years and incur renovation cos1s.The lawy• ers rehabilitatione xpendituresmust ex· ceed the greater of $5,000 or his ad· justed basis in the building under ByJ . Theodor e Jackson Inte rn al Reven ue Code (I.R.C.) §48(g)(IXCXi).The balance of this arti· cle will focus on the 25'!(,investment ia.x credit for the rehabili1a1ioncost of certified historic structures but the n the last Cewyears there seems to the rental of officespace and the lawyer same rules will generally apply to the have been an increased interest by does not build up any ownership inter· credi1fo r buildings of younger vintage. I l~wyers in owning the buildings est in the office space he is renLing. A certified historic structure is one where their officesare located. Part of However. if the la wycr buys or con· t hai has been listed on the National this interest results lrom n desire to structs a building, he becomes enti lled Register of Historic Places maintained avoid significant future increases in 10an interest deduction for money bor· by the United Stales Sc.>cretaryor Inte­ rental costs for officespace. Pan of this rowed to acquire or build the building rior or is a buildinglocated in a H.istoric mteresL results from the desire and and for depreciation deductions result· District that has been li51edin the Na­ need of many lawyers for tax deduc· ing from theowncrshipof the building. tional Register if the building is certt· 11ons generated by a mx shelter. for several years after the acquisi· lied by the Secretary orInterior as be· Asagroup, lawyersa rcalmost ideally t ion or construction oft he building, the ing of historic significance 10 the Dis· positioned to take adv,mtage of the ownership of the building will nor· lrtCL. Normally, a building cannot tremendous tax benefits resulting from mally produce a "tax loss" which will achieve this certification unless it is a1 the renovationof older structures. Most generate deductions which the lawyer least filry years old. lawyers wish 10 belocated in the down­ can use to offset income from his prac· In order to obi.am a listing of the town area close to the courthouse. uce or other sources. In addition, Con· buildingor of a llistoric District on the The oldest structures in town are nor· mnlly located in that urea and are the structures which qualify for specialtax credits. While not a definitive discus· s1on, this article will review the special tax benefits available for the renova· 110nof historicstructuresand touch on Historical Preser.•auon Authority fi. nancing. T he Hi stori ca l Re novation Investment Tax Credit As most lawyers know, the rem for the use of officespace 1sdeductible for }. TlttodoreJackso11, Jr ., o memberof lite Mo,1t~.m1· 1ncome tax purposes. Howe,•er, a dollar cry /011.1firm of R11,.~/tto11,Stokely, Jol111s/011 & Car· has to be paid out m order to receivea rr/1, is a graduate II/ Samford U11iver.;il)'011d re· deduction of a dollar. No extra or addi· ccii•ctl011 LLB. llegrrofrom/1,c U11iversity of v;rg;. tional tax benefits arc available from 11ioSc hoolof Law i111 969.

7'hr 1tlobo11'11la•1tr 165 National Register, application is made though regulations have not been pro­ crt'

166 successor owners will be obligated to iesorco unties in Alabama. T he organi­ own. They are simp ly a condu it or ve· adequate ly maintain the features of the zation of these autho rities is not a mas· hide for obta ining a lower interest rate building covered by the ease ment. In sive undertaking. and possible tax exempt ions for the many instances, such an easement will Th e Historical Preserv ation Author· property owner . I! is the responsib ility not impose a restriction which the ity issues its bonds or notes to a lender of t he property owner to find the lender owner cons iders an undue burden. He located by the property owner. Although and Lo negoriale the terms of the will expect to mainta in and preserve public offerings of bonds or notes can finan cing. the feaLures covered by the ease ment be made through underwriters , virtu· In recent weeks, the availability of anyway. However. it should be noted. ally all Historical Preservation Author ­ Historic Preservation Authority fi. that a subsequent change in desires for ity finan cings in Alabama have been nancing for newly proposed projects the use of the bu ilding may be prohi · private placements with a bank or has been greatly clouded by proposed bited by the caseme nt. If the owne r or a other institu tion or a smaU number of Federa l tax legislation. We may not successor owner wishes to demolish individuals. The lender lends money to know for several months whether t his the building to build a high,rise skys­ the Authority and the Authority uses financ ing will contin ue to be available. craper on th e site, th e easement will t he funds lo acq uire, renovate, equip However, if it is availab le in the fut ure, restrict him from doing this. and furnish a cert ified histor ic struc· t his form of financing is highly benefi· Some Preservation Easements have lure. The Authority would lease the cial to the property owner. This financ · been valued as high as40%of t he value land, building, equipme nt and furnish· ing is normally not feasible for small of the building. Bear in mind, however, ings to the lawyer. Under the lease, the amounts of money being borrowed. Al· that the value of the charitable contri· lawyer agrees to pay all debt service on th ough there is no rule or thumb, fi. bution for a Preservation Easement re­ t he debt issued by the Authority and to nancings of less than $75,000 and , in quires a correspond ing deduction in the maintain and insure the building. The some instances somewhat more, are taxpaye r's basis or investme nt in the lawye r also norma lly personally gua , not large enough to war rant the use of building which will qualify for future rantees repayment of the debt to the this financing. depreciation. Conseq uentl y, the Pres­ lender. The lease provides an opt ion in ervat ion Easement does not give the favor of the lessee to purchase t he pro· Conclusion taxpayer a new deduct ion but simply ject for a nomina l price when the fi. The avai lab ility of the historic in· "accelerates" deductions that would nancing is paid off. Thus. when the vest ment tax credit for the renovation otherwise have been received in the financ ing is paid off, the lawyer owns of historic struct ur es makes histori c form of deprec iation deductions. The the building. He is entitled to deduc· ren ovat ion projects among the best tax charitable contribu tion of a Preserva · lions for interest , depreciation and his· shelters ava ilable. By vin ue of the tion Easement may also constitute a lorical investment tax credit as though credit, the Federal government pays partial disposition of a rehabilitated he owned the building outrigh t during about one.fourth of the cost of renova­ building resulting in partial recapture the (inancing period. tion in the year the renovated building of the h isto rical investme nt rax credit. Interest paid on Historical Preserva· is placed in serv ice. Lawyers desir ing to Consequent ly, ca reful thought should tion bonds or notes are exempt from own their office building sho uld se­ be given to making such a conllib uti on federal and State income taxatio n when rious lycons ider acquir ing and renovat· prior to the expirati on of t he recapLure received by t he lender. Because this in· ing a historic st ructure. The credit can period which is five years from the date lerest income is tax exempt to the make the acqu isition and renova tion of the building was renovated and placed lender, lhe lender will give the Author· a historic st ructur e significantly cheap· in serv ice. However, lhis easement can ity (and ind irectly the proper ty owner) er t han the acqu isition or construction be executed at any time and may be a a lower interest rate than is otherwise of a newer office building. unique benefit to a lawyer who is seek­ avai lable. Consequently, the debL ser· In addition, many lawyers have taken ing to offset income taxes in a given vice on the loan is lower tha n it would great pride in restoring and maintain · year in which his income is ext raord i· be without the use of Historical Preser­ inga magnificent landmark forcurrem nari ly high. vation financing. Interest ra tes on His, and fulure generations to see an d en· lOrical Preservat ion Authority financ­ joy. For many buildings, t he quality of Hislod cal Pr ese rvati on Authority Financing ing usually run two to five percentage the materials and the decorative [ea· points below conventiona l raLes. Tn ad· tur es of a renovated historic building Many building renovations have been dition, projects financed through His· arc simply not available in new con· financed th rough the issua nce of His· LOrical Preservation Authorities fre­ structio n. The rewards of historic ren· tor ical Preservat ion bonds. These debt quently qualify for ad valorem property ovat ion include these psychic benefits instruments are iss ued by a local His· tax exempt ions and for exe mptions in addition to the tax benefits and the tor ical Preservatio n Authority estab· from Stale and local sales taxes on the possible cheaper cost of acquiring office lished und er §41·10-135 of the Code of cost of materials, equipment and fur · space by virt ue or the tax benefits. lf Alabama . T he local Authority can be nishings purchased for the rehabili­ Historical Preservat ion Au thority fi. organ ized for a given city or county or tated struct ure. nancingcontinues to be available.such group of counties. A number of authori· Histor ical Preservation Authorities financingeven f urlher reduces the cost ties have been organized for specific cit· have no money Lolend or grant on t heir of the acquisition of suchofficespace.D

Tltc A fabtuna l.nt

Hou ston ttnd lllur1in - E11Ja11/a

by J e n Nowe ll ers in Ihc adaptovc reuse of old build, ings - rchab1h1a1ingoldbuildings for modem us.-,,.Let's 1akea look al some ol 1hcse law officelos1atewide.

labama has man)•beautiful. old trend. More and more of these older A more•hl.'lluU(ul town than Eufaula historicciticsand towns.Adl'C· bu1ld111gsare fondingnew life, and our t'OUldnOl be found this time of year as A ade ago. with the help of pres­ cutes and towns are be.nefi11ingas we dogwoods, :waleas, and crepe myrtle ,n II I ervationists who effectivelylobbied to refurbish tht-se lies with our past. are f11 bloom and splash he town promote their interests in preservinga The U.S. Department of the lmerior with vivid color. Amidst the beauty of part or our past, Congress passed acts has publisht'd guidelines for those in­ nature arc dozens of ~ uthern homes providing federal tax incemivesto those tcrcstt>cl in buying older s1rue LU res and nearly as lowly. Two Eufaula law offi­ inclined to lnkc a part in the preserva­ taking adv.oniagc of these tax incen­ ce,.w ilh i111crcs1ingly similar historic tion effort. tives. In these guidelines rehabilitation tics. enhance lhc town's wu1hern fla­ Until less than a decade ago, new ii;defint'.1rks"'ho ~erved as gO\'· ration o( older hbtoric struct ures. For sible an effacicm comemporary use emor orAlabama from 19-JJto 19-17. many, many >·earsthese struc1ures while prcServing those pon ions and The house wasbuilt in 1857,and afler were left untouched and some even features of th,• propen) which are sig, 11was acquirt'IIby Go,·ernor Sparks he demolished,but now 1here is an en1ic, mficant to it~ historical. architectural lht'll thvre umil his dt•,uh ,n 1969.At · ing financial nhcrnat,vc and rehabili1a- and cuhural ,•alues." In lhe past =·· tomcy RussellIrby bough11he house in 1ion or older s1ruc1ures has become a cral years, lawyc~ ha,T been the lead· 1982 to u:,e 3!:> hb la" office. The change ,n the struc1urc from home lo office rt~1uirt'rac1ic­ i11gntlorney and, ai a I ime, was ajud1,,,e uf Lht•Cuun uf CllmmunPleas in Bar· lxiur Cou111y.lk prac1iced law for a numb.orof yea~ in whal now are 1hc la\\ offic..-,,of ll ouslon and Marlin. In the 1850sthis two-story building of fine arch11,,ctur,:was built foruse as the McNab Bank. h osone of the oldest bank buoldingsin Alabama.The walls are three fl'\!t thick - f!t•rhap,;lo hinder a 11i1wlm1/I,rrn/11ry, /J11/cl, Cassidy /yf>t• of /i(IJ1krobbi •ry - and the rooms have cightt-en-footce iling:,.Theex tc1iorhas Russell L. l l'by - H1ifa11/" hcav)' ornamc111alir on grillwork J>lat- llll! ,1/ny l!J/H tlw ,\lab.1ma Rlogistt•ro f Landmarks and llt•rilagc. Until ~he died. Mrs. Ac· ton would call a11omcyAllen~tein ·s se­ crclar} t.'achSJ)l'ang 10 SI>! how her a1.a· leas and other 1llan1,-were doing. upon which she had la\'1Sht-d,;uch grea1 care and concern for thirt)' )'ears. In the Old Town 1>1s1nc1 in Selma.a his1orican,1 which 1s included on the National llcgis1cr of I listoric Places, arc th~ la11larch. In 131rminghamSC\'cral law firms have boarded 1he rcnova1ion/ restora· 1ion bandwngon.One of Ihe firsLreh a· bili1atio11d for1~i n 1hc area by a law and 011 he anally buah in 1896by Dr. ltS .· Wat· rorms. sll'J>s. rnilillb'S I lront firm wast hnt orl" the lnicrior ll,:panmcnl as 1hc name or !ember 1978,,,,.ul' ul l,1/ique. and 1he the g;imc m th,: rchabilnation of older Oc1obcr/ No11,mbc.'rl!l711 is,,ucof .-lmcr · siruc1urcs. iro11l'mrrmlio11 The officesof Hoos· A Cornierm;1dcncc known as the tnn and l\larun. P.C., and Russell L. Phillips-Acton llomc now houses the Irby arc located 011 Broad Street in law orr1ccsolM yro n I<. Allcnstcin. a downtown Eufaula and arc both listl'!o.The SIruc1 ure was constructr.d followL~Isun 13ob Kracke points out on a 101purch.iiwd from Colonel Robert that their 11rojc'CIwas more of a "reno­ B. Kyle wh1>was in~trumcmal in the vation" ns op~'fGadsden :ts a city. Hewas ru;much as lhc from porch and back also organizer of Confederate troops porch of the structure were eliminated dunng 1hc Cl\'11War and served as a which ohcrL'1'0b· Sik cN & J{dl y - .'fr /11111 elfin• ~nd ii. gince. ha, bt'C n placed in lents in the renovation in rcplacemen1

1·,,..' ""'""""l.1111'_\";'f l&.l down 21st Street on the way to the courthouse and had always though ii would be perfect for a law office. The opportunity presented itself and he ac· quired it in early 1982.Wininger & Lee occupies approximately fifty percent or the building on the ground Door. The remainder or I he building is leased 10 two other law firms. The building was built in the early 1920s by 0. 0 . Whilldin, an architect who used ii for his own office. One of the beautiful exterior features of this office is the finely detailed terra coua Junette at the emrance, designed by Whilldin. Supported by heavy brackets. il features a beribboned wreath of acanthus leaves framing a carlouchc in l"nnc.s T. Ta rtt. Martha Jane Pat tonf and Be.njam.in G. Cohen - Bir111i11gha1u blue, green and ligh1 ochre Lerra Coll a with a stippled surface. of lhc brick needed where 1he porches Southside. Many originalarchiteclural Another inleres1ing Birmingham were removed. The building was com· features retain their 1913 navor. in· renovation is the Bradford BuiI ding on pletecl in July 1976,and the structu re eluding the mosaic tile porch, leaded Second Avenue Nori h which houses was awarded the l977 Award of Merit glass entran ce and wood beamed ceil­ Lhe law offices of Da vid Chip by the Alabama Historical Commission ings. Schw a,·tz. This building was con· and has receivedmuc h public notoriety. The law frrm or Enge l, Hafrs ton, structed in 1870an d was recently sold A cou1ile of blocks down the street Moses & J oha.nso n has just recently are the law offices or sole practitioners moved their offices around the comer ~~ lnn es T. Ta ru , Ma rth a Jane Pa t­ from the Waus Building in dowmown ton, an d Benja min G. Cohen . This Birmingham to the Nabers. Morrow tum-of-the-century structure, origin aily and Sinnige Building. The men for the residenceor the W.S. Yeilding fam­ which this building is named were ily. is viewed by many joggers and partners in the wholesale and retail strollers along historic and picturesc1ue drug business and built the structu re Highland Avenue on Birmingham's around 1895. Around 1918. Thomp· son ·s Cafe opened on the ground floor and is still operating there today. This five-story structure is located on the site of the first City Halland fire slat ion in Birmingham. The handsome white brick building is !rimmed with Lerra Cotta. It is an example of the sim­ and restored by the new owner Phil plified French Renaissance style. Hontzas. proprietor of I he well·known One reason many lawyers prefer John's Restaurant. The office leased by their offices in the downtown areas is the Schwartz firm is in I he centra l the close proximity to the courthouses business disuict , also just a few blocks usually located in the center of town. from the cour1house. Most historic s1ructu res are also lo­ Hank Pann in. a Talladci,,a attor­ cated in the older areas of town in or ney, has made lhe use of an 1890st ruc, close to downtown, rather than in the 1ur e built by the Clardy family for his more recently developed suburbs. law praclice. ILhas remained unchanged The law officesof Winin ge r & Lee except for a renovation in the late I 9<10s a re located a block and a half rrom the when I wo r r ont porches were removed Jefferson County Courthouse and two and I he entrance installed as it looks blocks from I he Federal Courthouse in today. This old building has been used downtown Birmingham. David Winin­ through the years as a residence. par· Engel, Hairston, Moses & Johanson ger says he observed the building for sonage, boarding house. funeral home. - Bir111i11gltan-, eighteen years as he walked up and and since 1978 as a Jaw office.

170 May 1984 found in one of the older homes con­ list of tenants including some young structed on Leighton Avenue in Annis­ ladies who were members of the world's ton. The Bell House, completed in oldest profession, cloctors. thc Alabama 1908, was occupied by the Charles R. Education Association. the Montgom· Bellfa mily unt il the early 1970s. It was ery Real Estate Board. and the Jones restored in the fall of l978 for use.as an Law School to name only a few. architectural design studio and offices. In 1942 Jack Capell opened a one It is part of Alabama's Preserved Archi· room law office on the ground floor. In tectural Heritage. In 1983 Wilson, 1962 he acquired title· to the building Pumroy and Bryan purchased the and, presently, the offices of Capell, struc ture for use as their law offices. Howard, Knabe & Cobbs fill the entire structur e. Across the street from the 57 Adams Building stan ds the venerable old First Presbyterian Church - the oldest structure in the neighborhood and the undisputed Queen of the Block. In an article written by John B. Scott. Jr., a Hank Fa nnin - Talladega member of the firm, he enacts a dia­ logue which might take place betw;.'en A Tuscaloosa home built in 1887 on the southwest corner of the intersec­ tion of Sixth Street and Twenty Sev­ Wilson.Pun1royand Bryan-A1111islo11 enth Avenue houses the law offices of Ke nnedy , Andr es & Adam s . -111- The original owners were Fred and LucyMaxwcll.whoinabout L907moved the house to the west 60 feet and built a

Capell, Howard, Knabe & Cobbs - 1Woulg<>111e1y these two old buildings on a moonlit night, when the busy downtown traffic has subsided and the street is quiet: Fi(ty-scven Adams might sigh over all their friendly old neighbor build, ings lost 10 parking lots and new am­ struc tion. and the old church build­ ing might reply: "Hang in there, sis­ ter. Keepyou r n1or1art ighl and your floor joists from sagging. You still have a long way 10 go." To which lhose of us \VhO,vork under its shel­ tering eaves would add. "Amen." o

In /he 11exlissue , re110U(1/io11s will be co11lim1etlwilh a lookal a couple of olluwMontgomery r eha­ bilitationsand severaliu the Mo, Kennedy, Andr es & Adams - Tuscaloosa bile area.

1'lu: Alaban1aLaw,·er 171 Opinions of the General Counsel

William l:l. Morrow, Jr.

was called upon to interpret Canon 22. Canons of Profes· Q UESTION: sional Responsibility of the American Bnr Association. ·'ls it et hical £or an nu ome y or an im•estigator or which in pan provided: othe r person acting on behalf or an att orne y to mak e recordings or conversat ions with clients. other at­ ''T he conduct of the lawyer before the torney s, witnes ses or other s wilhout prior know l­ Court and with other lawyers should be edge and consent or oll purti es to the conversations? " characterized by candor and fairness. It is unprofessional and dishonorable lo ~ SWER: deal other than candidly with lhe facts in It is unethical [or an attorney or an invesligaloro r other taking the statements of witn~ses. in person aclin g on behair of an allorney to make recordings of drawing affidavits and other documents, conversationswith any persons.be I hey clients.o ther allor· and in the presentationof causes." neys, witnesses or 01h ers without prior knowledgea nd con­ sent or all parli~'S to the conversations. The Committee held that a conversntion between a de· fendant in custody and his auorney is a confidential com· DISCUSSION: municatioo, and a prosecuting auorney may not ethically DisciplinaryRul e l -102(A) (4) provides: use a recording of such conversation without the knowledge and consentof the parties thereto in evidencein the prosccu· ''(A)A lawyer shall not: tion of the defendant although the conversation might be (4) Engagein conduct involvi11gdishonesty, admissiblein evidenceas a matter or law. fraud. deceit,or misrepresentation. nor be In InformalOpinion 1008(1967)theAmencanBar Associ• guilty or willful misconduct." alion Commiueeon Ethics and ProfessionalResponsibility, again interpreting Canon 22, held that it is unethical for a DisciplinaryRule l,JO'l{A) (6) provides: lawyer to make a recordingof a conversationwith his client "(A) A lawyer shall not: without the client's knowledge or without warning the clieoL In the opinionthe Commiueestaled : (6) EngAAemany other conduct that adver­ se!~· reflectson h,s fitness to practice law." "Is it appropriate for a lawyer to make a recording of a conversation with a client Canon 9 provides: without the client's knowledgeor without "A LawyerShould AvoidEven the Appear· warning the client even though this con· ance or Profi!SSionalImpropriety ." versation would not be disclosedto outsid· ers in violationof the attorney-clientpnv1 • Ethical Consideration 9-2 in part provides: lege and would only be disclosed to outsid, "When ex11licitethica l guidance docs not ers as an exceptionto the privilege? exist. a lawyer should determine his con, duct by ac1ing ,n a manner that promotes public confidences in the integrity and eHi­ Canon 22 on candor and rairncss dealing ciency of the leglll system and the legal principally with candor lo the court and to prores.~ion,•· other lawyers has been interpreted by this Commillee to impo!iea n obligation upon In Formal Opinion 150 (1936) lhe AmericanBa r Associa­ the lawyer to be candid with his client as tion Committee on Ethi es and Professional Responsibility well.

May JYS4 The making of such a record would be a a fellowla wyer.should it not be unethical iI violation of the obligation or candoi-and the recorded person is a layperson? Cer­ fairness. Therefore. we think that there is tainly the layperson will not be likely to an obligationon the lawyer 10 be candidand perceivethe ground for distinction. ra,r with his client when he is making a verbatim record of the conversation. and 110110 make such recording without such DR l-102(A)( 4) of the Code of Professional disclosure." Responsibility states that, 'A lawyer shall not engagein conduct involvingdishonesty, In Informal Opinion 1009(1967) the AmericanBar Associ· fraud, deceit. or misrepresentation.' This ation Commi lice on Ethics and Professional Responsibility, disciplinaryrul e is substantially equivalent again interpreting Canon 22, held that it is unethical for a to, but somewhat broader than. Canon 22of lawyer 10 recorda telephoneconversation with another law­ the formerCanons of Ethics which imposed yer wi1hou1advance disclosure and warning to such other on an attorney an obligation to be candid lawyer. and fair 'before the Court and with other In Formal Opinion 337 (197•1) the ;\m erican Bar Associa­ lawyers.' tion Committee on Ethics and Professional Responsibility held t hnl il is unethical (oran ,1llorncy to make recordings of conversations with any persons. be they clients. other allor· The conduct pro&ribed in DR l-10'2(A) (4), neys, witnesses or others without prior knowledgeand con· i.e., conduct which involves dishonesty. sent of all parties. The Committee relied primarily upon fraud. deceit or misrepresentation in the Canon 9 and Disciplinary Rule l-102{A) (4) of the Code of view of the Committeeclear ly encompasses Professional Responsibility of the American Bar Associa­ the making of n!COrdingwithout the con­ tion. The Committee cited lnfonnatioo Opinion 1008and sent of all panics ." InformationOpinion 1009and observed: In InformalOpinion 1320(1975)theAmerican Bar Associ· a1ionCommittee on Ethics and Professional Respansibility "So far as clients and other attorneys are held that an attorney could not permit his investigator lo concerned, the prior Informal Opinions surreptitiously record a conversation with a witness with, make 1h e conclusion clear. Attorneys must out the knowledge and consent of the witness. not make recordingswithout the consent of The opinions of state and local ethics committees appear these parties 10 the conversation. lo be in virtually unanimous agreement with the foregoing opinions of the American Bar AssociationCommittee on Ethics and ProfessionalResponsibility. Cf.. Texas Opinion While the law is not clear or unifonn as 10 84. 16 TexasBar }011r110/ 701 (1953). recording by lawyers of co1wersationsof In view of the foregoingauthorities and the reasons set 'other persons,' it is difficult to make a dis­ forth 1herein, we conclud~ that you could nol rt'COrdth e tinction in principle. If undisclosed record· conversations described in your request foropi nion without ingis unethical when I he party is a client or prior knowledgeand consent of all parties thereto. D

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Tl,r1llabu u111lauyr, liJ n March 8, L984. the following disciplinary pro­ his presence, by a person other than the person whose ceedings took place before the Board of Com· name was affixedto the instrument and to whosesigna· 0 missioners of the Alabama State Bar; Lure he anested. Mr. McKerall adm11tcdt hat the in· strurnenl already had a signature arrixed when it was Privat e Reprimand presented to him. and that il was not presented to him by the personthat purportedlysi gned the document.but A lawyer was privately reprimanded for having vio­ lha1 he nonethelessattested Loth e signature. lated OR1 • 10'.2 (A )(4). by misrepresentinga material fact in his response to a complaint that a client had filed Decatur attorney Joe 13. Powell was publiclycen­ against him with the DisciplinaryCommission of the sured beforethe Board of Commissionersof the Ala· State Bar. bama State Bar for violation of Disciplinary Rule 9- 102(A)(l)of the Codeof Pro(essional Respnnsibility.M r . Powelladmiucd that he had commingled his personal Publi c Censur es funds with those of his cHents in his attorney's trust account in violation of the Disci1>linary Rule cited above Tuscaloosa lawyer Richard 0. Fant, Jr. , was 1iub· which requires that attorneys maintain clients' rundsin licly censurt>dfo r having violated DR5- IOl(C)by having an identifiable bank account. and that these clients' represented a client in connection with a petition tn funds be kept separate and ap0rt from the attorney's modifya divorce decree.af ter having previously rcpres· personal funds. entcd that client's formerspo use in connectionwith an earlier petition to modifythe same divorce decree. Mr. Birminghamattorney la wren ce 8. SheCfield.Jr. , Fant was also publiclycensured for having violatedDR was publiclycensured for having violatedDR 6-101. DR 1·10'.2(A ) (5). OR 1·102(A) (6), and DR 7-102( A) (7). by 7-IOl(A) (1). and OR 7-lOl(A)(2). b y having willfully having advised a bankruptcy client to transfer owner· neglecteda legal matter entrusted to him, having inten­ ship of a motor vehicle to the client's mother prior to tionally failedto seek the lawful objecLivesof his client, filing for bankruptcy in order to prevent the loss of the and having intentionally failedto carry out a conLractof vehicle through the bankruptcy proceedings. Mr. Fant employmententered into with the client 111connection prepared a bill of sale from the client to his mother for with a civil suit Lha1Mr . Sheffieldfiled and then virlu· the vehicle, failed 10 list the vehicleon any of the bank· ally ignored for over six years. ruptcy schedules which he prepared for the client, and advised the client to make no mention of the motor vehicle during his testimony in connection with the bankruptcy proceedings. Suspens ion Birmingham lawyer G. llcnncll Hayne s, Jr. , was Gulf Shores attorney Samuel Mcl

174 Muy 1984 Lumpsum payments aren'tthe only way to settle a personalinjury claim. Alternative: STRUCTURED SETTLEMENTS By thinking, not just quoting annuity rates, Howard Weil's Financial Services professionals examine ways to assist legal counsel in designing an approp riate settl ement package. We'll explore investment alternatives such as tax-free municipal bonds, annuities, and obligatio ns of the U.S. Government. We'll also consider the uses of third party assignment, perfor mance bonding, trusts, and even post­ settlement financia l planning. Experienceexperience. Ca II 433 -31 45 Mobile r------: · Howard,Weil, Labouisse, Friedrichs : I INCORPORAT ED = . _ 56 SI. FrancisS1ree 1.P.O Box 1866 !i,lf>( Mobile. AL 36633 I'm always open to a better ,vay ro gcr the job done. Tell me n1orc about structuring serrlemerus as ;,n alrernative to lun1p s urn payments .

Addres•------CilY------Sme ______Zip ___ _

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------The only Ne w Yor------k Srock Exchange Member headquarte-red------J in the mid-South . The Final Judgment

illness. He was fifty•six at the time of d1s1inguis hed. He was a member of the his death. Firsl Umted Methodist Church of Charlie was born 111Geo rgianna on Mon1go111ery and served as chairman March 8, 1927. llc a11cnded undergrad· of i1s udminisrrative board. uale school al Auburn University and Charlie's skill s as a trial advocate Norlh Carolina Stme College and re­ were well known and respectl'CIby his ceived his LL.B. dctrrcc from the Uni· cli~ntsand his adversaries. ~h.•was me­ versityof Alabama Law Schoolin 1950. t ieulous in his p.eparation for the trial While in law .chool. he served as a arena. always exhibiting a t~nacious member of the A/11/>111110Low Hcview grasp of all factual details involved in and was elected lo Farrah Order ofJu · the comroversy. His trial skills led to risprudence. Afteri:,,radualion from law his selection as a Fellow of I he Ameri· school, he began his lifelongdevOlion to can College of Trial Lawyers in 1981. the law as a member of Lhe Montgom· Charlie lefl a proud heritage ror his ery law rirm of Kush ton, Stakely.John· wife, I lclen, and twochilclrcn, Maibeth, ston & Garren. During his practice, a practicing attorney in Birmingham. C.E. Porter Charlie served as a member or many and Charlie, a medical student 01 the state and localbar committeesand was Universityof Alabama ;\Jedical School. Charles Edward Porter. a dist in· elected president of the ~1ontgomery Charlic'b law firm. his fellowlawyers. gubhl'd trial lawyer and legaladvocate. County Bar Association in 19i3. His and hii, rommunity will long n11ss 1his died on February6 , 198<1.afiera leng1hy service to his communi1y was equally devoted servant of the law.

Unkcr. Martin Dilmus-r.unti,r,vilk Rowe. Uruxu,n Bragg, Sr.-Ent,•rpn,c :\dm111,~I:1979 01t"nard -\lbcn\'dl,· ·\dmntt'd: 1938 DK'd:197& !lied: February 12. 1!}$,1 '" I ,• Pruitt , Iru Dra yton-L1vmg~tun Walter!>, Wallac<' Darby-M ont.:omcry ; Adnum.'d:Hl'l8 Died:Dt-ce1111Jtor 31. 1983 " I rt1ese notices are pubhslwd 1mm,-diatel\after n'Jl(lrts of de.uh are r«eiwd. B1ugraph1rnl ~ 1nformat1onnot appearing 111th1~ 1s:;uewill bl! pubhslwd 111a later da1e ,r mformall

B.B. Row e, Sr. Brax1on Bragg Rowe or En1erprise dil>donMarch 13,1 984.H e was seventy· three. "Brae" Rowe was born on March l:J. 1911, in New Bnx·kton, Alabama. He auended Troy Slate University:ind lhe Umversily or Alabama and earned his F.E. St. John, Jr. Jaw dl-grccfrom the University of Ala­ bama School of Law in 19~2. Finis Ewing St.John.Jr., of Cullman "Brae" was a member of the Coffee di!!don March 6. 1984. lie wassevenlY· County, Alabama and American Bar four. AllSQCiaiion.ln addition to his acl ivities Finis Ewing SL.John.Jr .. was born in as a member of Ih e legal profession.h e Cullman on October 14. 1909. He al· J.H. Curry wai. a long Limemember or the Enter· tended Howard College{now Samford pnse Rotary Club and the First United llnivers,tyl in Birminghamand gradu­ John Hardy Curry o( Carrolltondied Methodist Church or En1erprise. ated from the Universit>'of Alabama onJanuary 14.198.1.Hewaseight)'·two. "Brae" was a lawyer's lawyer and School or Law in 1931.H e then went "Mr.John.'· as he was affectionately was:, peoplesla wyer. and proud of it. in Lo Ihe practice of law in Cullman called, was a 1925 graduate or t he Jl is interests were the practice of law with his father. Finis Ewmg SL John. University or Alabam;1 School of Law. and his family. He was an uncommon Sr .. who in 1895 founded the law firm After admission to the bar, he began lnwycrnnd an uru::ommonman. He had where the younger SL John practiced practicewith hisfalhcr. M.8.Curry. in an old-fashionedsense of duty toward until his death. His son. Finis Ul: the law partnership of Curry & Curry. his clients which compelk""1him to be gmndl,Oll, Finis IV: and daughter-in­ From 1935to 1940he worked with the no1ju~I their lawyer. but their friend. law .Juliet G. St.John joined the firm in U.S. Government in the legal depart· Friends or "Brae" pri;,,edhis superior the )'(:llrsLhat followed. mcnt of the U.S. De1xinmen1o f Agrl· mmd, his crisp yet )lOSitivewiL.andhis Mr. St.John served two terms in the cuhure in Montgomery. Me then re­ mostery or the anecdote. The Bar, his Alabama State Senate oc,ginning his l urned to Carrollton Io resume practice Jxlrlner. and his !amily are richer !or !irsl term in 1939and was a mernberol with his rather until the senior Curry's having had Braxton B. Rowe wilh the Alabama Code Committeeof ) 9.10. death. In 1969. Mr. Curry and W.0. them these years. yet he Jea,-es an llis grandfather. father. uncle. cousin (Budd)') Kirk. Jr .. began the firm of empty placein the heans and minds of and son also served in the Alabama Curry and Kirk and there he remained th

Th, Jtlab.,mu ,.,,,...,.,, tn as a member of the Boardof Directors Ted died on Christmas day 1983af ­ telling indeed co listen to Ted - an of the Pickens Coun1y Hospital Associ­ ter an illness of almost ten years. He expert equestria n, an exceptional ath· a1ion and had served on this board con· retired from ll1e active pracLiceof law lete,a professional baseball player - to secutively for more than twenty -five in 1976. Even though we mourn the hear him Lalk about the high points of years. death of Ted Hoffmann eight Cullyears his life. Inva riably he spoke of his tr ials Mr. Curry was endowed with the after his retireme nt, there are many of and the men and women of his profes· basic gilts of love, honesly and loyalty. us here with clear and affectionate sion that he respected and loved. and invested these qualities among his memories of him. He dist inguished him· In his twelve short years of practice, acquaintances who soon became friends. sel( in our hearts and minds as an un­ Ted managed lo impart to us an extra l:leleaves behind a legacy of hard work. swerving yet honorable competitor. a degree of pride in being a lawyer. be· accomplishments, love and service lo straight charging yet compassiona te cause he had so much himself. He was his fellow cili7.ens and to God. mediator, a dignified loser, yet, more able to convey lo us through his own Sympathy is expressed to his wife of often. a graceful winner. quiet assurance lhal hard work and !orly-nine years. Lola B. Curry, and lo Ted taught many of today's Mont­ justice do wa lk together before a jury. his many friends. gomery lawyers at Jones Law Institute Ted was able to leave with us a meas· in the subjects of corls and trial advo· w·e of his courage, his dignity and his cacy. He was active in t he Stace Bar grace. Association and was on the Board of T he Alabama Bar is better for Ted's Directors of the Alabama Defense life an d we join with his wife, Martha. Lawyers Association for three years. and his children, John. Paige. Norma, Ted loved practicing law more than Martha and Suzanna, in our sorrow for any endeavor of his life. fl was very his death. D

GExecutive GJ)irector's GJwport (Co11/i1111etlfrom /)age125 ) local bars are more active now than bar, the bench and the public, and the ever before. high import to be placed on outreach to It is painfully emba rrassing 10 write the public. He wrote: to a bar member and learn that he or she is recently deceased. J would appre· Each lawyer should be concerned ciate receivingnoticeof any members's about how he is viewedby hisclients. his friends and everyonehe meets for death. Don't assume that someone else their perceptionsof him will be trans• will write or call - they usua lly don 't. lated into general perceptionsof the Character affidavits for bar appli· profession.Thus. each of us should T.H. Hoffmann can ls are U1eapp licants' responsibility. look to our o,vn habils and manners Fartoo frequently students leave forms in all our dealings.E ach of us mu st accept /he fa ct /Ira/ we. ours elves. Theodore "Ted" Henry Hoffmann of with our members who assure them a re /he pri11cipa/ shapers of ow· Montgomery died on December 25, 1983. Lhat the anorneys will forward the af­ publi c in,age. (Emphasis added). He was forty-nine. fidavits to us. but the affidavits don't Ted earned his undergraduate de­ get mailed. The student is penalized Reginald T. Hamner gree in commerce from the University since our deadlines are firm and, unfor· of Virginia. He received his law degree lunately, many students wail until the from the University of Alabama School last minute to Cile.As a result . some of Law and was admitted to the Ala­ st udents must wait an extra six months bama Bar in 1964. to sit for the Bar exam. Ourlast NamePuts Us First His first responsibility as a lawyer Fo, YourInformation Needs was as clerk to Jus lice Robert 8. Har­ Fin ally Cilators · Te•I• · Specialized wood. He then began the private prac· ReferenceBooks ticeof law in Mont.gomery and was one I was recenlly struck by Lhe sage Yourrepr esenlative In Birminghamand of Montgomery's tru ly fine lawyers. adv ice penned by Indiana State Bar No~hern Alabamais Steve Wells. Ted was a tria l lawyer. He made no £resident John Carro ll. In his "Presi· Pleaseca ll oollecL S teve Wells secret of that preference. His fellow ad· dent's Message" he addressed the 3501 Granny White Pike vacates uniformly called him a gifted "Reach Out" program of tha t associa· Nashv ille, TN 37204 tria l lawyer. Lion, concerned with outreach to the 615-297-1355

178 ,tlay 1984 LicensL'

n1iscellancous ~otices JOB HUNT: Firms o((ering positions, or lawyers looking for work, may advertise in either the position oi/ercd or position wanted column of this classified section of Tlte Alabama lawyer. These an· nouncements will oost $30 per insertion of fifty words or less. prepaid.

books for sale se rvice s FOR SALE: Allorneys' Textbook of EXAMINATION OF QUEST IONED THE Medicine. 3d Ed.. 14 vol. plus 2 index vo­ DOCUMENT S. Handwriling. typewrit· ALABAMA LA WYER lumes (Mallhew Bender):W right and ing. and related examinalions. lnlerna· Miller, Federal Practice and Procedure,26 tionally court qualified expert witness. CLASSIF IEDS volumes(cur rent). Both sets in excellent Diplomate. American Board o( Forensic condition. Contact Clyde Alan Blanken· Document E.xaminers.Member : Ameri· All requests for class ified ad ship. P.O. Drawer G, Huntsville, Ala· can Board of Forensic Document Exa­ placement must be submilled bama 35804. Phone (2

1'/w Alnba,,,o J.11141yr..r 179 position s offer ed TAX LA WYER. preferably wiLho ne­ L\vo yearsexperience in generaltax. cor· 1iorate and estate planning areas. LL.M. in Taxat ion, C.l'.A. or 01her heavy tax background rC<1uired. Sal•ry commensu­ rate with experience and academic cre­ dentials. Reply 10 l

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