'~t Union Bank, ire ,rork hard to eam your trust.'' - Henry A. Leslie President and Chief ExecutiveOfficer
Union Bank works closely with many Alabama atto rneys in the adtninislration of ttusts and estates. Our investment capabilities have increased dramati cally in the past year by the addition of a state-of-the-art co1nputerized system . As Alabru11a's largest independent bank, we contro l all our investment processing within the Trust Department to asslU'e constant attention and complete confidentiality for your clients. We invite your questions about Union Bank's trust services. Otrr experienced trust officers will be glad to discuss any business , financi.aJ or adinini strative asp ect of the services we provide.
11111>11 BAnK & TRUST: f>•Sf~F~C 60 Cormuerce Stt-eet
Montgome1y 1 Alabama 36104 (205) 265-8201 J ou t our publica tion s for the Alabama attorney
Any two (2) bc>0k6 ...... $94.95 Any four (4) books ...... $179.95 Any three (3) books ...... •...... •...... •...... $l37.95 Any live (5) books ...... •...... $209.95 Any six (6) books ··················· ···················-···· $249.95 Cr iminal Offenses and Defenses in Alabama by John J . Chiarkas, Nicholas L . Chiarkas. Jr. and ORDER l' OR~I Keith W. Veigas. J r. with Richard L. Owens e.,..., my ordu fo, the publicoLiono below, including any supplemtn~ revisions. replaotme.nl pac:ta. reviM!d,-olumes. new Criminal T r ial Practice additionalvolum.es. and relatedmaterial. I undtn:tandI mayat any time canoel my order for the m&te_ri,alby .o intomainaThe HarriSQn by Nkholns L. Cbiarkas, Jr. with Cindy Morris Company in writing . On cash Nlet thtrt t. no handling charge, and Harris The HarriliOll Compao) • will pay po,&tAgeo r freighL Handling charg .. plw postage or frei1hL will be added 10 AI. L OTHER Cr iminal Tria l Pra ctice For ms SALES . by Nicholos L. Chiarkas, Jr.
Alabomo Law of Da mages by Charles W. Gamble nnd Donald E. Corley .-8lll Personal Arroun1. --8 1U f'irm Accou.nt Divorce , Alimon y and Ch.ild Custo dy by Roberl L. McCurley, Jr. and Penn y A. Oovis
Workmen 's Compe nsa ti on Aeooun, ;:,___ _,,rm ______by Ja ck B. Hood, Benjamin A. Hardy. Jr . and E. ,J. Name------~ Saad Add"""------Lim it at ions or Actions City/SLale/'li p ______by 1'imothy Hoff Da1,...___ _ ....,,igna.Lure______TIJ/\} &{ JIAJ(fl/80Nl'O MHINI'. PUW,ISJJf;HS SS·IC a!VYerThe Alab11n1a
SEPTEMBEJI 1915 l'ubl•~ll,,thm,untl ll\ 11' ·n...-J\1i1b;un;1 SIUI(' U,1r 1•, 1 1'.i., ll :it1 Mo11111,tu11i,,;"), AI :111tu1 1'h•>11c'C:!t(',121>'1l:~ 1·1 THE SEPTEMBER kvl.k-1'1 t\. llurfol..~·r l·AU1o.. l, 1nlll :\1111S mhh ~birit;:u't' I Uublk •rl,•, ,\,·~•·1.-1,•Y. dtt ur M.A•lilUlti~E ,d111; BOARD OF EDITOR S l'11tn.L 11 l,r.n, ,J r , l1un, ,., 1ll1•• l l1.1mvl.1011 ... Jr :\lulu It• • Ju ly "11•'12~~h'~.n 1. llhm 111J:h,m1 • l•nuiL II l'uu~. t-1111,.,,,.,. • J M,,rli \\ ho, . 1·,1~.. IJU t)!h • l :.1a•1il'II11 I t1111n1lrr . ll1rn1ml,(h,i,11 • ~11,m "thu,,I. li\·l·.11,1., ,\lu1tl,1,'1•11,., • \111,1...,_ ..... , v.. 11 1 r, ,~·umho • l'lnll1vt~Aicl1111~1 I ljo,-bl.;1• i..1'o•l).'\':\J T:hlo#, In 1i1r111m1th,1111• K•i•'lt I'. lk'"f111,..1u,1..-' ~•h1l1 • J Mk h:,d WU t,,un·•.:O.• , \ \lt~u, • i\r11111!1\\'l '11 1l111oh,N ,0 11dilr..1• 1.,1null II :,,11lh, .1n, \l, i111i·• :,,11,u•uI \h,,. •. Tu""111ot_. ,..;, • ti r,,i,w) 11 ll,1'
226 S,t,pr,,,,,b(,-I !18.5 1985 ISSUE IN BRIEF
IOLTA - "NOW" Provi des New Int eres t - pg.264 IOLTA has 1iroven to be a beneficial Inside This Iss ue program in 01h or states. Is it ripe for l'rcsidcnt's l'age ...... 228 institution in Alabama? Execu11vcDirL -ctor·s l{cpon ... U9 Bar 13ncrs ...... 2:JI About Members. AmongFirms ...... 232 Ncwes1Bar Commissioners Eh.'C1ed 2:15 CLE New~ ... :N3 I~'l-86 Comm111cc,.and Ta,k ForG<-i.o r the The Young J udge Alabama State Bar ...... 248 -pg.260 CLE Opponun11ies...... 2a~ Judge J. Russell McElroy is a jurist K,dingthe Circuns ...... i.'>9 wdl-renowned in legal circles.His meL Young Lawyers· Scc11on ...•. 271 Lle was Lt-stedat ancarliers1ageofhis 1..egislmive Wrari-up ...... 273 judicial career. Tape N,'COrdinl,Oµinion Hcconsidcred ...... 274 RtoeenL Decisions...... 275 UiM.:i111inaryl{e r'lOrL...... 2l:ll In Memoriam. . . . . • • . . .. 2~ C.:lassil1L' All You Wanted lo Know About IOLTA But Were AfraidA lo sk -pg . 267 Mall )' ~lats,;; hal'e instituted pro· grams to allow accrual ori nterest on lawyer trusl accounts. How would 1his programopcr,it<' 1f i nitmi<>d in Alabama? Tltr Alutx,111<1/JlicJ)'t~ TresidetU's <¥age A Little Extra Special Something NORTH ··1 have a high opinion of lawyers. With all and liberty." j oh11so11v. Zorbsl. 304 independent bar. T his is the si ngle their fauhs, they stack up well against U.S. 458. 462 (1938} most important funct ion we perform. those in every other occupat ion or profes In this regard, I do not share the fear We are there lo aid the individual and sion. T hey are bette r to work with . or play of Derek Bok. president of Harvard Lhe helpless in cha llenging powerful with, odight with. or drink with than most olher varieties of man kind." Uaiversity. thal too many of our finest and entrenc hed interes ts. panic ular ly minds are going into the legal profes· our government. In facL. the private Harrison Tweed. accepting the presi sion. He suggests this migration of tal lawyer was written into the United dency of the bar of the City of New York - May 10, 1945 ent creates a drain on the sciences. the States Constit ut ion as the defender of humanities and education. But whal the people against government oppres fl is a pleasure to write this first ca n be wrong with devoting a signifi sion. I remi nd you we are the only pro report to you. 1l ove lawyers. and Llove ca nt amount of the nation's wealth of fession mentioned in that great man i our bar. You have honored me greatly, human resources to the greatest sys· festo of freedom. and I pledge 10 you my best efforts tern of justice the world has ever One ap prehension l do have and duri ng the coming year. known' Welawyersareproble msolvers. would like to share with you is my T here are al least two things I want That is our education. and that is our percept ion of the lawyer's diminishi ng us to focus on this year. First. I want exper ience. We creat ively address Lhe role in public life. Pretermiui ng for the us to try lo improve the public image of complex economic, social and political moment our lessened inOuence in the our profession. Second, I want us to dilemmas of our nat ion. And we need nationa l governme nt. I see an even bring to a conclusion as many as possi not apologize for Lhe fact that some greate r danger at the local level. At the ble of the varied and importa nt tas ks rimes we are paid well. For i L was the time I began my law practice. lawyers yourt-ommitteea nd task force members lawyers· ent repreneurial spirit that were the dominant force in both houses already have undertake n. made industry protect iveof the environ of our legislature. Today few lawyers By improving our public image, I do ment. brought responsibility and ac· sit in Alabama's House of Represent a· not mean to attempt to make everyone countab ility Lothe securities markets tives. and there are only slightly more like us. T ha l is impossible. given the and to the manufac ture rs of products practicing lawyers in the Alabama Sen· nat ure of the role we play in society, which are destruct ive of human life ate. Lawyers . by their education and but we can make an effort to bring into and limb. Likewise. the lawyer serves tra ining, are uniquely qualified to serve s harper focus what il is we do an d to defend against irres ponsible and ex· our state and nation in a legislative what an indispensable function law tremist claims. So long as we are un capaci ty. and theq uality of our legisla· yers perform in our free country . In an fette red in the conduct of our varied lures suffers when we are absent from excellent ar ticle in a recent edition of practices. the free market of ideas an d the legislative halls. T he only way 10 The Natio110/Law j() 11r,l(I/, Milton V. ideals will insure a sta ble and prosper correct this problem is for us to en Freeman of the Washington . D.C., Bar ous society. courage each member of our profes, suggests "t he private lawyer's fu nc· Rather than President Bok"s alarm sion. par ticularly our young lawyers . tions are essenti al to maintaining our about too many lawyers, [ fear a nation to become involved in public affairs. kind of free societ y." Freeman also of lt>chnocrats. specialists of too nar · To be sure, it can const itute a financial quotes our own Just ice Black's state row scope. who would subordinate in· sacrifice, but offsetting that is the op· ment that t he right to the assistance or clividual freedom to the bureaucratic portuni ty to ser ve your sta te and private counsel is "deemed necessary process. T hat will not happen to this count ry. to insure fundament al right s of life country as long as we have a free an d (Cl/11ti1111etl011 /)age 23()) 228 Sep/ernbiir198.S ~xecutive <.Oirector's ~port IIA MNE:R Red -Letter Day I Convention Critique October I, 1985. should be a "red· license. the meeting as well as those who did letter" day for every person admitted Those not engaged inactive practice not come 10 Huntsville. We constant I\· to the Alabama State Bar. On th,sdate or exempt because of a public office arc trying to ensure that our meeting ,s every lawyer becomes subject 10 Act currently held arc subjec1 10 §34·3-17 ,merest ing, fun and affordable. Ccr· No. 85·119, Acts of Alabama, First and/or§34-3-18, (;()(/1•0/ A/a/J(lma(l975), tain evenls at lhis year's meeting arc S1x..ocial Session, 1985. approved rel>· and their special meml>ershipfee is deserving of some thorough "Monclny runry 5, 1985. paid directly lo t he state bar wi1J1in the morningquarLcrbacking." I would like The act amends §40.12-49. (;()(/cof same October 1-31 time frame. That to hear your thoughts. Consider this: AltJixlma(l975) that provides for the Ice is now $75 under the provisions of 612 lawyers reg,s1ered;458 of these pre purchase of an annual license 10prac, Act No. 85-119. "l!•stcred. yei auendance of e,·ery event tice law. Until it was approved. most Not all proba1ejudges send remind· \\' ,ub:.taniiall}below pttvlOU> ftgure;i. lawyers enjoyeda two-yearexemption ers of licenses due. Our office however Only 1he Bench and Bar Lunch<.'OllIJ> proa<:hed auendance following I heir admission to practice. will bill those Special Members cur· earlier levels. Las, )·car'sdessert party wa, a sell-out; The act abolished all exemptions ex· rently on our rolls. and we will remind 1h1sycnr we noLonly failed 10 meet our ccpt fort he time frame between date of all formerly exe1111>tmembers of their gunri,ntl'Cby 50, but only ::!00holden, of admission and the first day of October new obligaLions. Please consider this a some :!001lckc ts purchased showc' 1n,Alobo•01 l.1t"')v undoubted ly be calling on us for our meeting in Washington with the Com· fina ncial support. and I hope the bar missioner of the ln tern al Revenue Ser· will res pond. vice an d his staff to discuss the unfair· Rowena Crocker of Birmingham has ness of the JRS's curre nt position and (f-'r,1mpoge 221!) been cha irman of a task force study ing possible solut ions to the problem. Sena· We as lawyers have many items on the implementa tion of an 101.TA (In· tor Howell Heflin organir.ed t he meet· our agenda which tran scend narrow terest on Lawyers· Trust Accounts) ing and acted as its moderator. T he economic inte rests. and a united rront program in Alabama. Rowena and Reg· meet ing also was atte nded by Senator on this broader agenda ca n help all gie Hamner ar ranged for Pat Emma· Jeremiah Denton and Congressmen lawyers. I here am talking about the nuel, president of T he Florida Bar Tom Bevill, Sonny Callahan . Ben Er· selection and retention of judges. r und · (which has one of the country's most dreich, Ronnie Flippo and Richard Shel· ing for our courts (including a new ap successfu l IOLTA progra ms). to ex· by. All these members of the Alabama pellate judicia l building), pay for jud i· plain t he way JOI.T A works. Pat spoke congress iona l deleg-dtionhave been ac, cial personne l and funding for indigent Friday morni ng in Huntsv ille. and he tive in encouraging the IRS to change defense and legal services 10 the 1Xl0r made five telling points in favor of its position and were most support ive - all more encompass ing iss ues af IOLT A: Florida has raised over $7 mil· at the meeti ng. fecting all segments of the bar. On lion dollars from its IOI.TA program; it After a few enlightening rema rks t hese issues. the bar should speak as does not cost your clients a penny; the regarding the case law on wrongfu l one. We can be a powerfu l force if we money can be used for worthw hile pro· death suits in Alabama, Senato r Heflin are together. jects: if you do not have such a pro· allowed me lo present the bar's basic As stated above, the second major gram, the bankers get the money; and posit ion on this ma lle r. Rob Couch and t hrust of my efforts du ring the next t he individua l lawyer's 1><1.rticipation David Wooldridge of the Birmingham year will be to attempt to complete can be entirely voluntary. I hope du r· Bar ably outlined t he technical legal some of l hc important tasks already ing this year your bar commissioners basis of t he sta te bar's position. Alex being undertaken by the members of will approve a volunt ary lOL TA pro· Newton and John Haley of Birming· your bar. Anyone who attended our gra m for presenta1ion to our sup reme ham commented on t he basic inequ ity committee breakfast at the annual cour t. of die IRS's position to Alabama wrong· conve ntion had to be. impressed with During the Sat urday morning pro ful death plaintiffs (particularly wid· the breadth and scope or your bar's gra m David Boyd of Montgomery was ows and orphans ). act ivities. presemed wit h t he state bar's Award T he commiss ioner agreed to keep Your 1985Annu al Convention was a of Merit for t he splendid job he did in the lines of dialogue open with t he Ala· great success. Thanks are due to Bill working with Robe.rt Potts and lhe bama Congressional Delegat ion and Griffin. president of Lhe Huntsville· board of bar examine rs in devising an the Alabama State Bar in an attempt to Madison County Bar Association. the improved statist ical way of scoring the find some midd le gro und. Failing an Huntsv ille Bar Auxiliary and all t he bar exami nation in order to insu re its admin istrative resolution of the prob· Huntsv ille lawyers and their wives [or fairness an d uniformity . lem, the congressiona l delegation has outstan ding hospitality. In add ition, Five retiring bar commissioners were indicated its willingness to submit leg· Walte r Byars and Reggie Hamner pro· 1>resented with cerli ficates of apprec i· islation add ressi ng t he issue. I will vided a superb progrnm, and Bob Mea· atio n for dedicated service. They were keep you informed of any developments dows and the Young Lawyers' Section Harry Gamble of Selma, Bruce Sherri ll in this area. put on a fine, well·atten ded CI.E pro· of Athens. Richard HarUey of Green · Let metaket hisopporl unil y to thank gram . Your committees and task forces ville, Warren Lightfoot of Birmingham Waller Byars not only for the great job were well·represented at the Friday and Hue! Love of Ta lladega. Your he did as your president. but also for morni ng breakfas t an d have alrea dy board of bar commissio ners is an ex· involving meas president·e lect in every organized and are off to a running tremely talented and commiued group aspect of the activ ities of your bar. For sta rt. of lawyers. T hey give unstint ingly or exam 1>le, I have had the benefit of at . Friday morn ing Judge Val McGee, their time and talents. and we all owe tending every meeting of your boar d of Walte r Price and Mike Conaway were them a great debt of grat itude. bar commiss ioners. your Committee responsible for an excellent presenta· We are continuing our efforts to re· on Governa nce. your Committee on lion on l..awyer Alcohol and Onig Abuse. pair the damage caused by Revenue. Long-Range Plann ing and a nu mber of T his program was extreme ly informa· Ruling 84· 108. As reported in the May other committee meetings. I also have tive about a delicate and emotional 1985 issue of The Alabama Lawyer, attended meet ings of the Southe rn subject. Until recen tly this was a prob· t his ruling subjects all awards and set· Conference of Bar Presidents. the Na· lem generally swep t under the rug, but t lements under the Alabama Wrongful tional Conference of Bar Presidents. it is real and must be addressed. Under Death Statute to federal income tax t he Midwinte r and Annua l Meetings of Judge McGee's leadership a non-profit - a result contra ry to past practice an d the American Bar Association, the Ju· foundation has been formed to provide t he clear language of §104 (a) (2) of the dicial Conference of Alaba ma and the help to lawyers with chemica l depen· Inte rnal Revenue Code. dency problems. T hat foundat ion will On July 31, 19&5. we attended a (Continued on pogc233) 230 S,pt,111/J Fre d Gray beco mes 1>res i sionru.pub lic and private career denl of lh e Natio nal Bar has demon~trntedoutstandi ng ded· Assoc iatio n 1cnuon to IM welfatt of the com• mumt)', the 11'.1d111onsof the pro fession and lit!: ma1n1enanceand Frl'd D. Grayof Tuskegee has ad,-ancemenlo( the objectivesof been installed as president of the the AmerirnnB:ir Assoc:iauon." National Bar Associationat its The Fellows of I he American Bar annual meeting in Chicago. At the Foundat ion was established 30 years tradillonal ceremonyJuly 26. 1985. ago as an organization of more than Gray assum~'CIthe leadership or 2,000members of the legal profession this na1ional or~,anization. founded encouraging and supporting the re m 19'.15by and forihe Negroat· search program or the American Bar torneyo of America. Gray was rec Poundation. ogni1.(.'CI ror his achievements in his The American 13nrroundation is profossionun d ror his outstanding an arrilia1e of American Bar As rt.'COrd.panicu larly In the field of suiting m federal voting rights the sociation and conducts research upon civil righis litigation. He also was laws and other cases of historic significance. Mc olso was instru· lhe operation of the law and legal recognizedfor his co11tributions to institutions. the National Bar Associationand mental in initiatmg and tr,~ng a 11,,consutuents. havmg served on class act ion against the United virtually e,;ery important commit States which C\'entuallyresulted tee of the ai;.."OC1ation. ,n a seulemen1 totaling more than Gray ,s the senior partner 10 the SI0.000.000for rural black males firm of Gray, Langford. Sapp, Da mjured as a result or the Tuskegee \•is and McGowcnwhich main Syphilis Study. tains ofhre. m both Tuskegee and Montgomery. lie was one of the rirst two blacks to serve in the Alabama l.cgislaturc since the Hamn er honored rece ntl y days of 111!(.'0llSI ruction. and in 1972h e receivt.>dth e Capital Press Two recent honors helped make Corps award as best orator in the the month or July special £or Alabama Al a llama I louse of Representatives. State Bar Executive Director Regi Gray wus the rirst attorney for nald T. llamner. Or. Marlin Luther King.Jr., dur · Hamner was elected, by the Execu Guin appointe d bar ing the e.~rli· days of the civil tive Committee of the National Asso cxamfoe r nghts movement. Hesuccessfulli · ciation of Bar Executives. to the posi· handl~' 11,~A/abo11111 loM )' f'I' 231 Slone, Partin, Granade & Cros by takes pleasure in announc· Ing Dani e l G. Blackburn has be come a member o( the firm. and the name of the firm has been changed lo ton e, Partin. Granade , Cros by & Black bum . Willia m A. Ja ckso n and An n Z. Arnold are pleased to announce the rormolion of a partnership in 1he &\bout Members, name of J ack s on & Arn old for Lhe general prucLice or law. Omces are located at Su itc 508, # l Independ· ence Plaza. Birmingham. Alabama &\mong Firms 35209. Phone 870-3647. Has ke ll, Slaughter , Young & Lewis, P.A .. lakes pleasure in an nouncing and y W. Murvin has become assoc1a1ed with the firm in the prncuce or law. Offices are lo cau.'CIill 800 First Nationa l - Southern Natural Building, Bir mingha m, Alabama 35203.P hone 251·1000. Ma ynard . Coo pe r, Frier son & Ga te, P.C., takes pleasure in an · A b out Me mb e r s Patri ck P. Hugh es is pleased to nounc,ng Kathl ee n A. Collier and announce the relocau on or his office Jam es L Goyer , Ill, formerly as Vern Moor announces Lhc reloca · 10 Suite 408, SouthTru st Bank sociates. have become members of lion of her oH,ce io Suite One. 2824 Building, P. 0. Box2627, Anniston, the Firm. and Jame s L Prie s1er Linden Avenue. Birmingham. Ala· Alabama 36202. Phone 237,0.128. has joined the firm as an associaLe. bama 35209. Phone 8704114. Offices are located at Twelfth Floor Walts Building, Birmingham, Ala banw 35203.Phone 252-2889. Jackie M. Mc Dougal is pleased He nr y H. Ca dd e ll announce s he lo an nounce his relocat ion 10 new o! is now ens:i,ged in the general prac· !iccs for th~ pr~ctice of law a1 1817 tice o( law in associaLion wiLh Th ird Avenue, North, Bessemer . De Mc n1 & Wise lakes pleasure Th iry, Maples & Brunson. Offices Alabama 35020.Phone 426-3000or in announcing Donald E. Fazeka s are locaied at 1911Government 426-3163. has become associated with the firm S1rce1. Mobile. Alabama 36606. in the general practice of law. Offi Phone 478.SSSO. Amo n g Firms ces are located a1 555 South Perry Street. Momgomer y, Alabama The law firm or Lyo ns, Pip es 36104.Phone 834-8900. and Coo k lllkes pleasure in an Horace V. O'NeaJ, Jr. , an nouncing Jo sep h J. Minus, Jr. , nounces the relocation of his office has become associated with the firm LO809 f'rank Nelson Building. Bir and Will G. CaHey, Jr. , has joined The law firm or Baxle y, Beck. mingham, Alabama 35203. Phone the [i rm as counsel. Offices are lo· Dillard & Dauphin is pleased to 251·1870. caied at Two North Royal Stree1. announce I(. Dec HuLsle r is now Mobile, Alabama :!6602.Phone associmed with I he firm. Offices are 432·4481. located al 2100 16th Avenue Sout h, St:ptembrr1985 Suite 304. Birmingham. Alabama joined Lhe firm. Officesare located 35205. at Court Square. Alexander City. Alabama 35010. Phone 234-2547. SAVE30-60% * * * USED LAW BOOKS JameC s G. low e r and Keith Walki ns of the firm of Clow e r & The firm of Ha ygood & Be nson * * * • Wost • Lawyers Coop • Harrison Watkin s, of T roy, and George C. is pleased 10 annou nce William A. • MatthewBender • Callaghan• Others Douglas, Jr ., forme rly staff auo r· Cleve lan d has hecome a partn er in WE BUY - SEU. - TRADE ney with Alabama Electric Coopera , the firm, and the firm name has Law Book Exchan ge live, Inc .. Anda lusia, are pleased lO been changed lo Ha ygood , Ben so n P. 0. Box 170 73 announce I he formation of a firm for & Cle ve land . Offices remain al 120 Ja ckso nvill e, Fl. 322 16 the general practice of law under the South Ross St reel. Auburn , Ala 1-800-325-601 2 name of Clower, Watkin s & Do ug bama 36830. Phone 821-3892. las, with offices at 104South Brun , didgc Street, P. 0. Box493. Troy, Alabama 36081.Pho ne 566-0424. <.J>residellf;4i"P~c (From page230j lllh Circuit Judicial Conference. One the privilege of wor king with him. 0 . Co le man Yarbrough . for· year is a short Lime lo learn the ropes. The board or commissioners elected merly of Jones . Murray, Stewart & and this experience Walter provided Harold Albritton or Andalusia as vice Yarbro1.1gh.P .C .. and Ed wa rd M. will be invaluable. In this same vein, I president of the bar and the following P a tt erson are pleased to announce believe Lhat we I05ClOO valuable a re commissioners LO the executive com· the formation of a partnership for source not utilizing in some way lhe miuce of the board: Ph.il Adams. Ope the practice of law effective August knowledge of our immediate past pres· lika; Wade Baxley, Dothan; Gary I luck · I, 1985, under the firm name Yar idents. To this end. the board orbar aby. Huntsv ille; Joh n David Knight, bro ugh & Patte r s on , wit h orriccs commissioners has approved a change Cullman; and Archie Reeves, Selma. in Suite 1212, Union Bank Tower. in our governance str ucture lo permit They will provide fine leaders hip nex t 60 Commerce Street, Montgomery, continued service by our immed iate year. Alabama 36104. Phone 262-6450. past president on the executive com Finally, l want to emphasize to you minee of the board. that your bar is just that; it is your bar. In Huntsville. our bar commission Your officers and staff work for you. ersalsotook 1wootherimportantsteps We owe you dependable. courteous The law firm of F igu res & Lud regarding governance. One was to re service. We have an outstanding staf f. good is pleased to announce Th o commend an increase in the represen However. some of you have expressed mas II . Figur es has become a tation on the board or bar commission· concern to me over occasions of s<.'Clll· mcm bcr or the firm . The name of ers for the more populous areasof the ing discour tesy or inaucnt ion. To the lhc firm has been changed to Fig state. T he other was to recommend extem that you receive less than ac ur es. Lu dgood & Fi gur es, with t hat your president -elect be elected by ceptable service from your officers or offices localed at 2317 St. Stephens mail ballot. As I promised many of you, stal l. I want to hear aboul it person· Road. Mobile. Alabama 36617. Phone I favored both changes. primarily as a ally . If you have legitimate complaints. 456-99'l2. matter of simple equity. Gary Huck I promise to address them. aby of Huntsville chaired this impor ln the small town where I was tant committee. and he was most ably reared. therewasasa} CODE OF ALABAMA NOW WITH 1985 CUMULA TlVE SUPPLEMENT The Code of Alabama, published in cooperation with the Alabama Legislative he Michie Company, law publishers since Council , is fully annotated and indexed by Th e T 1855, serves lawyers, judges and legislators Michie Company's professional staff of lawyer· with state code publications in sixteen states and editors . The Code of Alabama includes the District of Columbia. Our commionent to collateral references to American Law Reports, timely service and cooperation wirh the states Amer ican Jurisprudence and Corpus Juris we serve is why Th e Michie Company has Secundum as well as complete cross-references. published more new state codes in the last The Genera l Index is pub lished in convenient, twenty-five years than all othe r pub lishers softbound format and is revised and replaced combined. annually. ~THE=="""""""""""""""""""""""""== MICHIECOMPANY ~ For customer service contact : JAMES R. SHROYER P.O. Box 717 Pelham, AL 35124 (205) 326-9899 Or call toll-free 1-800-446-3410 Newest Bar Commissioners Elected Commissioners reelected to serve on the Alabama State Bar Board of Com missioners include WilliamD . Scruggs, Jr., of Ft. Payne, representmg the N'mth Judici.11Circuit; Joe C. Cassady of En terprise. represenung the 12th circuit; LudgerD. Martinof Gadsden, represent· ing the 16th circuit; Wade H. Baxley of Dothan, representing the 20th circuit; L. E. Gosa of Vernon, representing the 24th circuit; Charles R. Hare, Jr ., of Albert· ville, representing the 27th circuit; and John F. Procfor of Scottsboro, repre· sent1ngthe 38th circuit. su11resides. Wood received an under· Archie T. Reeves, Jr., commissioner graduate degree in 1974in accounting for the Fourth Judkial Circuit, was bom from Auburn Universityand a degree in June 61 l932, in Selma. He al tended Da· law, cum laude, from Cumberland Uni· vidson College and graduated from the versity three years later. He was admit, Universityof Alabama. Reevesa lso grad· ted to the Alabama State Bar in 1977. uared from the University of Alabama Wood JSmarried to the former Marchella School of Law in 1956and was admitted Henley of Pell City, and rhey have one 10 the Alabama State &r thar sameyear . son, 8. Gregory Wood, Jr. He is a former prosecutor and municipal judge for rhe city of Selma. Reeves is married to the former Anne M. Smith of Montgomery, and they have three chil· dren: Archie, Allenand Edgar. Fran cis H. Har e. Jr., commissioner for the !0th Judicial Circuit, is a 1959 graduate of the University of Virginia, where he received his law degree. He was ;ldmitted to the Alabama State Bar in 1959. Hare is a former president of the Alabama Trial LawyersAssociarion and former gow:mor of the Association of Trial Lawyers of America.Smee 1975,he J immy E Alexa nder, commissioner also has worked as an associate profes . for the 39th Judicial Circuit, was bom in sor at Cumberland School of Law. He is Bear Creek, Alabama, AuguSI8, 1939. married lo the former Suzanne Ballietof He graduated from the University of J erry L. Thorn to n, commissioner for Birmingham, and they have three chi!, Alabama in 1961 and rhe university's the second circuit, was born in Green· dren, Francis H. Hare, Ill; Catherine school of law in 1963. Alexander is a ville, Mississippi. January 29, 1948.He formerpresident LlmesroneCounty Southern Hare Langley:and M.lrgarel AmeliaBaJ . ol the graduared from Bmn,ngham 1964-66) and board in University bet Hare. Bar ( a memberof the College 1971 and the or or direcrors of the Athens·Umestone Alabama School of Law ,n 1974.Before B. G reg Wood , commissionerfor the Bank. He is married 10 the former Rose entenng private practice in January 1977, 29th Judicial Circuil, wrui born August Scheuing of Birn,ingham, and they have Thornton served as assistant district at· 20, 1952,it, Talladega County, where he two children, Eric and Tonya. lorney for the 10th Judicial Circuir. n,,. Alaboura I..O")V'T 23S t .• atingD Oil and Alabama lawyers are more likely 10 or reserved by the deed. Those ambi· one-quarter royally, the one-half "of be asked to prepare or to review a deed gullies usually can beavoided by care, royalty" interest would yield one-eighth affecting oil and gas interests today fully determining what the sh are of of a 11oil and gas produced under I he 1han at an y previous time. This sud · production is to be when: ( I) the inter · lease. H the servient mineral inter est den increase of oil and gas tran sact ions est is subject to an oil and gas lease: was un leased, the "one·hulr of royally" results from the expansion of explora and (2) the interest is 1101s ubject to an term would be ambiguou s, because tion and development activities for oil oil and gas lease. Thi s determination is there would be no royalty 10 have. and gas across much of Alabama. Oil critical 10 the description or the inter · Special attention must be paid to the and gas deeds present peculiar prob est. Only after making this prelimi· grantee's share of production in a lems. partly because of the many facets nary determination should the lawyer transferor an interestthat is burdened of an oil and gas transaction and begin to decide whether to use a "min · by an exis ting oil and gas lease. Many part ly because Lille defects involving cra l interest '' or ''roya lty interest" deeds conveying a mineral interest the oil and gas mineral estate can be label in the deed description. ' burdened by an existing lease contain difficult to cure. This article highlights In oil and gas deeds, a minera l inter · a "s ubject to" clause with language some of the problems and defects com· est and royalty interest in the same similar to the following: monly occurring in mineral deeds and fraction can yield different shares or recommends measures t hot will aid production. In this rt,r,inl, an interesi "Said land now bC1ngunder an oil and gas lease originally exocutedin lawyers in avoiding I hose drafting described as a one-eighth "mineral in· favor or __ and now being held 1)roblems. teres t" will yield its owner one-eighth by _ ii is understood and agreed of 1.he oil and gas produced from the thal this sale 1s m;1dcs ubject to said M ine ral Dee d · Ro yalt y Dee d lease. but covers and Includes iCra - Before a lawyer c.1n ens ure a client tionl of all oil royally nnd gas renta1 Special atte ntion or royally due 10 be paid onder the has addressed all the aspects of a min· terms of said lease.'"' era! or royalty conveyance. the lawyer must be paid to the must understand the various rights grantee 's share of Th~ additional "subject 10" clause is and privileges associated with the designed to ass ure that the right to minera l estate.' Wi1hout that under · production in a receive royalties attr ibutable to the sta nding. the lawyer ca nnot prepare transfer of an intere st mineral inte rest passes 10 the grantee instruments meeting the needs of the that is burdened by named in the deed and to protect lhe client and sta nding the scrutiny of grantor against a breach of waminty ume. A tempting drafting approach is an exis ting oil and gas as 10 the existing oil and gas lease.> to classify an interest as a "mineral lease. The clause, however, has caused some in1cres1'"ora .. roylnty ,merest .. and 10 serious problems and has spaw ned a adopt or modify someone else's form number of cases addressing those for " " minera l dL'C 238 Stpt,m//er1985 ties. If the scrvient mineral estate was conveyance have lx Tl" AlnMmo u.,~, 239 Lween a fracLional formula and a min· can cause l wo types of common prob· even Lhough neither Lhe grantor nor eral acre formula in one of three ways: !ems in mineral deeds. The urst type of any of his predecessors had previously (J) find the deed unambiguous and up· problem occurs when the grantor does severed any portion or lhe mineral es· hold the minera l acre formula; (2) find nol have sufficient t itle to·convey tbe ta te by conveyance or reservat ion, the the deed unamb iguous and uphold t he interesl purported ly granted by the grantor executes a nd delivers a wa r· fract ional formul a; or (3) find the deed deed. The second problem arises when ranty deed containing one of the fol· ambiguous and admit extr insic evi· the deed mentions a prior reserva tion lowing false recitals: dence to determine the parties" intent."' or conveyance t hat never happened. The approach adopted can significantly Th ese problems normally are created (I) "There are hereby excepted.... increase or reduce the interest. For in· whe n the gra ntor has forgotten or An undivided one-half( 1/2) inter· stance in Wade u. Roberts, the Okla· never knew what transac tions have est in and to the oil. gas and min erals lying in, under or upon ... homa Supreme Court considered facts occurred in his prior chai n of title. The same having been reserved lo G. where accret ion added 15.26acres toa lawyer drafling the deed usually does C. Coggin Company, Inc.. in the 32-acre ripari an tract.2,, The accretion not hav e an accurat es ummaryof prior certain deed...... : "' or led to a dis pute over a reservation al mine ral transac tions and the refore (2) "Subject to one-half interest in ternatively described as an undivided must rely on t he client to supply t he mineraland oilri ghts as conveyed 5132nd of the tract and as five undi · facts necessary to draw the deed. Both to Wm. Henderson.. ;"' or vided mineral acres. Under the frac· types of problems can produce res ults (3) ""SAVE AND EXCEPT an undi l ion al formula, the grant or wou Id have that at least one party, and somet imes vided three-fourthsor the oil, gas reserved 7.385 mineral acres, an d under both parties, to the deed never am id · and other minerals in, on and under Isaid landI . .. . which min· t he minera l acre formul a the grantor pated. erals do not belong to grantors would ha ve reserved only rive mineral T he first type of problem is com· herein"::11•or acres. T he 2.385 mineral acre differ· monly called a ··Duhig .. problem in (4) "Exceptall minerals and mineral ence would be extremely significant if refere nce to the case of Dultigu. Peauy · rights. heretofore sold and con· a prolific well was on the tracL. Moore Lumber Co., 135 Tex . 503. 144 veyed."·11 Another example of the connicting S.W.2d 878 (1940). A Duhig problem resu lts of the two formul as occurs occurs when a gramor, who owns less The first examp le is U11io11Oil Co. of when: (l ) a grantor conveys mineral than Lheenlire mineral estate.auempts Col. u. Colglazier,360 So.2d 965 (Ala. acres by wa rra nty deed in one of sev· to reserve an undivided minera l inter· 1978). T he othe rs simp ly are insta nces era! cont iguous trac ts ownt' 240 Se/Jf•mlxr 1985 (I) Excepting any interest that the objectionable. undividedon~~half mine ral interest for grantor wishes to retain in clear a periodor 15 years and so long thereaf nnd unequivocallangw,ge of ex Rule Against Pe rpetui ti es ter as oil. gas or minerals were being cepuonsuch M: Occasionally.an oil and gas trans produced in paying quantities. The Grnntor herebyexcepts rrom action will involve the transfer o[ a question in the case was whether lhe 1his con,eyancean undivided future interest. Usually the future in· grantor or the grantee got lhe undi· lfrnmoolinterest in all oil, gas and OIher minerals in. on terest will besomething that is to take vided one-hall interest when lhe IS. andunder IPfO~lv!1ogethcr effect after: (I) the termination of an year term elapsed and there was no whhall andsmiiu ar the rights existing oil and gas lease. which can mineralproduction. Thegrantorargued and nppunenanccs.. . . remain in effect so long as oil and gas the rule against perpetuitiesvo ided the (2) Excepting the 1>riorreserva1ions are producedfrom the leased premises: grantee's right lo lhe one-hall mineral or conveynnc,.,srrom the granl · (:.!)Lhe lapse or a sr>eci!ied term of years interest. despite the parties' manifest or's warrn111ics as follows: and the cessmion o! nll 1iaying oil and inientions in the deed. The court sided Grontorcove nants, e.xceptas gas production; 0 1· (3) a well on the with the grantee by !inding that the lo In ll prior mineral reserva property hns producede nough oil and grantor conveyedthe entire fee simple tions und r.onvc ances • that rantor 1sscired .... gas to allow the operator to recoup its estate to the grantee and reservedan costs of drilling and completing the undivided,dcfeasible one-half mineral well. In each of these situations. the interest. Since a rcservat ion is techni This approach shifts the risk of prior time that the future interest vests is cally a grant back to the grantor. the mineral severances to the grantee. uncertain. Further. the interest may grantee held a possibilityof reverter in Where the grantee has paid considera- not \'est in the grantee for many years. the disputed one-hall mineral interest. 1ion for a specified mineral interest. Due lo this uncertainty, the transfer Although a possibility o! revener is a this approach as unsatisfactory and easily can run afoul o! the rule against future interest,..,ii is not subject ro the the warramy languageshould not con· perpetuities. rule against perpetuities." tain a blanket exception of all prior In Earlev. /ulrntnlio110/ PaperCo., Earlc providesex cell en t guidanceon mineral reservations and conveyances. 429 So.2d989 (Ala. 1983).t he Alabama how to avoid the disastrous effects of If, however, the grant or is merelycon Supreme Court considered the appli· the rule against pcrpeLuities. Simply veyinga ll that the grantor owns to the cation or the rule against perpetuities grant everything to Lhe grantee, and granll'e, Ih e blanket exception is not to a deed that lert the grantor wiLhan reserve the defeasible interest thegrant· UNIVERSITY COUNSEL Four Alabama and Federal Trial Practice Form AUBURN UNIVERSITY Books Avallable for Immediate Shipment ... Aubutn Unlwr,oy it leH lng applic-altons and nomtnadon1 for 0 ALABAMA AND FEDERAL PLAINTIFF thf poaltH)n or Untvt,sity Counset This pe,aon ·• pum1,v rQOOn11btlltv la to 11m1 and adYtse the P,-e:stde:nl on legal m111..-1 DISCOVERY FORMS Uniw,1Jty CounNI alto supplements General Covnwl of' Aubutn Univers,tv fn PfovkllnQ ldvice to 1he Board of Truttet$. Pr-nk:ktnt 0 ALABAMA AND FEDERAL MOTION and oshtr 1dm,n11ue1or1 on manert hJ:vlno leg1I r1m,flee11on lnctud,ng compll1nce af UnJver'litV aciivnies with applk:llblt law FORMS ind tt tob11,hod leQal preceden t, and review of leo•I dooumtntt execuutd tn tho nnm-c of A ubu rn Un ive rsi ty. 0 ALABAMA AND FEDERAL ORDER AND Au burn Unhrort1ty l1 e comprehensi ve l1nd ~g,i:,nt ln11!1utlon JUDGMENT FORMS 11arving 1he Su1u1 ot Al11bt1meth rough research, ex1on1lon anc.1 pub lic ,or vloe with o ourfe nt enrollm ent of app,oximo tely 19,000 s1uden11 0 ALABAMA AND FEDERAL COMPLAINT A protoaslon.ol l1w dogree CJ.O or LLB.t end 1dml1slon 10 FORMS pr1etice Jaw In the State of Alabama are req ulred Part of a se ries of trial practice form books by A leUtr ot 1pc,Oc11}00, accompanied by a current re.tum• ,incl th• namn. IOdre1us. ind 1el•phone numt>etc of 1hrH p,oftnlon1I Robert Sellera Smith and Joan McIntyre. •ete,enc:eJ,, thou kt be 1ubm1nl!d &$ soon as posstble . The oe..tdlln• fo, receipt of nom1n11tons 1nd apphcations tS October 15, 1885 The price of each of these books Is $59.95 plus Appo.'n.tm•nt Is to be 111frecuveon Oecembe:t t, 1986. or u IOOf'I 1hefe1tter •• PGUibl• postage and handling. Send 1pphca1ton110 0, Geot~ H Emen. Cha,nn.,n LlnJve,srtyCounHI Search Committee MADISON PUBLISHING COMPANY, INC. l 07 S1mto,d HIii 223 EAST SIDE SQUARE Auburn L1n1ver111v.AL 36849-3501 HUNTSVILLE, ALABAMA 35801 Auburn University rs an Affirmative Ac:tion/ (205) 533-5040 Equtll Employman l Oppor'tunlly Emptovor 241 or desires to retain. The reservation question. In order to avoid the issue. present ,n the facts of Thibodeauxr •. clause should contain words of inher· deeds should not contnin reservations A111cricn11Ln11d & Explort1tio11. /11c., itance and should contain no words of in favor of a spouse who has no interest 450 So.2d990(1.a. Ct. App. 1984),ct r/. exception." in the property prior to the reservation. dr11ietl,458 So.2d I 18 (La. 198-l). The If the grantor wants the spouse to re courl in tha1 case upheld the grant of Roadwa ys ceive an interest in the property, heor royalty acres using the definition men· A problem that can appear in deeds she should make a specific and sepa· tioned in the Dudley rootno1e ag.dnst a conveying rural land involves roads rate gra 11Lor t hm interest to the spou5!?, landowner fraud anack. Thib/ldca11.ril, constructed along the governmental Some mineral conveyances involv· lust rates the confusion that can result subdivision lines. In such cases. I.he ing homestead property do not contain from using Lheterm "royalty acres." It grantor usually holds fee litle to the homestead acknowledgments on the is tooeasytoassumethat a lessorwou ld entire governmental subdivision in deeds. The lawyer should not overlook have the same number of royalty acres volvedin the conveyances.Sometimes. the requirement o( Section 6-10-3 or as he has mineral acres under lease. however.the deed description is based the C«Jcof Alnbomn (1975) that the For that reason. the lawyer must be on a survey describingt he tract bound· spouse must join in all conveyances or extremely careful when facing a deed ary with reference to the edge or 1hc homesteads and the deed must bear a granting "royalty acres." D road right-of-way rather than I he true validacknowledg ement of the spouse's boundary, which may bethe center or signature. FOOTNOTE S I he public road. This practice leaves A practical problem can arise when •The lorm'' mineralestate " In 1hecon le.x1ot 1h11 the grnntor with title to the strip or a gramorconveys a certain number or artlclolndlca1eo the highest posolbl1 lnton111in land located between the true bound· mineralacr es situated in multipletra cts all and gas as opposed to leuer lnte spou~cs join with them in mineral the inconveniences such a grant can 10S,ee Moungerv . Pillma.n.235 Miu. 85, 108 deeds. When the grantor is reserving bring. So 2d 565 (1959) an interest in the deed. the reservation Another problem can occur when "Id. should be only in favor or the grantor the parties to a royalty trade express "H WILLIAMS & C. MEYERS. OIL ANO GAS and the grantor's heirs and assigns. the interest as "royalty acres." In a TERMS 293 (6th ed. 1984). if footnote in Dud/~ ,,. Fridgl!. " Wo,tM)O/ 2•12 S,pt,•mbtr1985 "'Wade v. Robefls, 346 P.2d 727 (Okla. 1959). 21Goverflmentalsec tions are rarely staked to containexactly 640 acres. Foe example. of the 36 sectionscontajned i n Township 7 Nor1h, Range 5 Eastof SL StephensMeridian rn Afa• bama, only four sectionscontain exacuy 640 CLE Tltc AlolxuttoIA«')' tr 243 The 1985 Alabama State Bar Annual Meeting Highlights 2. Pres ident Uy.tr& ca lled lhe nu it!ling 10 o«Jc:r for "Upda1e '85: ~ ecent Oevtt lc.>p· in Pictur es menl.S in che Law," sp S. During I h(l 1~1n cheon , Senator Jim Smith ~ or Hun1sville (le/I) a.nd 01h~rs rt:t;c>ived 3. PrtOr lo 1he & nch and Bar Lundu~ n. 11. A mong lhose enjo )ling 1h;: hos pi11\lity legisl.UiYe a pprecia 1!,on award i from 1he members 9at hett!d :11 1hc Hunl sville Hil,- wen : Youns L.1wy1tr$' s~crion Preside,11 Alab.lmaLnw lnstiluu r,Roben L McCur • 1onfor a Bloodyi\fary p.-.rty hosted by the Roberc T. ~tei.dow s., UI, ;\ uburn (leh). and ley (ri9h1) , dirt:Ll(>r, ~late bar. Rtehal'd E. F'lo""'(t1'5, C ohunbus. G <-orgiil. 6. TeKa, Ll" y.!.r Leonard Passinore entert1 ,inc.'<1t>reir ident 81,1cu·, , , . 1, , . ... oom ti mb en; ol th ti be.n<.h " nd b.ir wl1h 0n· ' " '1:r, lo ,5uch qucs 1K)n,; 1:ls "'\,\lh1u does rhc IRSdo \,i th 1ha1 liu le box on 1he form 1040 1~1bded 'Oo no1 ma tk i:n thii space '?" 8. Aire,- lun ch, rh~ ~minar reronven\."tl Vnn~e-11a Penn Otiran1. ,,1on190mGry, 11=poke 0 11 re.l'.:.-nldevek,pments in don,esrk rc:l:,tionf fow as Claire-81.Aclt, Tusc-aloo$il, YLS S4tCrC!t11ry(right) , pre-sided. 244 Seplt1111fx:r 1!185 9 l.,atl't 1hJ1 C\.etNn,. mcmben ,SalI\~r:cd at Hunl 3-V11!1C'·• Sp.K c .1nd 10 Amon,1Mpartk:ip,,111UY.'t':tr~n-~s,.1cS..rPruldnl1\VAho Rot k•• C....,,.., t-luHum for• cod u"31totfJ1Pl'I'" \V, Eppes,1nd his ,_.ifot,Kalfwril'Mr,of~ 1,ridi.ln.~1~ 13 Pa,.tptNICknl• "--ho ,..,h.lrtt4•cw 1!i NMh\ilf .ctC!f' 1.hdr•n,,.,..i bt.-:1111.• M\I StaJf,,ftl Mc fa"-1 w-.,r~ l.rlll!... I NatMft 1old of ~. W fiorn i.by. Oak• dependtn cy 11nd lry ~1.. .h on, Jr., e. t,r( 0 \4' fV, T B"°""'• J11n1C!li f. Cltuk , \\ 1,llt,.m 13..H oln.1on nnd L OrttWH ittld11n, l 17. S 1>0uM!i p3rl iclp,nted in a luncheon a l'ld h)Ur' flnllll t d ''Tt1t>Ht of 18, Frid4y a.hernoon nMmbtn d*4 two ou.t ~ 12 Mc1)onfl'INtitlgt 10 alftrnd, 1'11'1101)1,u, rl l;lut11uu:.. ot t•lun 1.svillt," hollh..:l by the H11r11avillr fl.u Shown ar• sunn (rom 1Jw Ad.mlnl•O•ltYI &..w S1et1on IM•llng, Willhm S. Au,illl"~ ' HaltfY, J, •• Annbton. ctlalrma.nQl'fl) • 'rJu, AlabtunlJ /,JJWft '' 19...... ,_, .... __ 2J Lou.....,.. S 1.1tr Bar Prdldnu ElooflE. f .ak)n to.•tnP*r'd'"9,~ Al .... sund;w _... A, Ft.loN-. Jr • ~ t,,fU. i..., .. • • ... -, .. , 111....• UligoUoo Soctloo JJ>-S.11'' .lilt~ 2 ,1. • , 6o T hol't'W .1nd HI• Ordu t•tti. , 20, Sii-;1y po1~n,ial chane, rtW,f1bvt11g. ,lh • l~ueky t-1ou,u . Non h Cu rolinu, ttn Ien "lnttd, erc:d to org.i nile lhtt prOt)OIMtdUtf.J,1 1ion s.c1tUn..A chiHln lffl!mbttnhl 11A1)t)l/(.11ion aPl)l!:ars on pagt 219 ol 1hil' iourMI 2L ln5uf'"4.Dff Spcdan,_, , Inc. P~N Sp;)nn \Y. M~ 0 Atl.\n1a(l«ft ). t.o.;1tfd I ri ct.).t ~~nms·• p.ssl Pre,i,ide!nt\\ 'ilf'1.,11.mB I tAi:r,H>n.J, .. .U of 8innit.19ham l2 L~ul't 1l.a1 n.i!nln,1o I lunt.sville's Vo n B;,,un C " ·-. C wn1cr ...... _, 1hit ,...,i;ng lor .a l>\o~rt .-utl N~ tuc:•.p P.. ,,y. ZS A nwnbn- ol hrM1 y .ot,d,, ~r itd to, 1hr, Mlll'WMf un Rvn -hich - it~ I 0UowlngS111ur.;li.)I'' cha mpa_gnt: brcaLdasc, m«"mb«,.,s,n1u,red•l thtt 27, • Oavid R. Uoyd,fo1otU!JOITM!l'Y, r,•cipktnt of the ~&i.b.lrn., S1.-1e&r'• Vo n Ur 11un Civic:Cu nl t l' ""h11l'e Presiden • \\ 1aher It Byars c:onvt nC"d1he AW-'f'do f Meri, • ,uu,ua l bur.ln,.,1 1nc1i1in11, Amon91 hott recelvln!) c1wi,rd1w en t I' . Rlt hortl I liul l'1y, (;•• ·~nvlll~. ou19oin9 bar co mmiss.icmcr • , Stptil"l~ t I 9~ 30.. C11m1II~ \\'"9:ht Coo'i t''!<4Wt!d ,...., Jud9• \\ '•h•r P. l'9 ~I~ tian 30 lll • C~,n Con1fnW"9 1~rC":Khed1M Lc9al ldu ca1ion 28.. • MMf0Ulgoi"9 5Q.\8"Ultf!birrnen,. A-..,,,-4pr&tt1tf'd by baro.~MU1on ~hip m.ttk.Shown the AB.ICLC.Stff\..fln C. Emf.th,, ..Urec10, l '~t'!Mng :ac.'!etlifio..ite!' ~ c. o ••1o ; r.~,s. •. (1<11). iJ.. ii, Jo(k L C.p1:ll. 31 CNN n11-.."im.1n 32. Kenneth O \\ ' .... Jftr)I \Y. ~ told ...... so °'hk f!trp,ffll!'M,t u anor \\!..a..att abet • hot..,.. "' leb.> iwnttt.1f'd a •H t.o - . IJd.._.i by Ptf!Sidftu \Yah.t:t"R . lc-rror.._,_.in 6-l~r<:h Byan lo, PTOPfffY lt!H,.,,...... ,.lnfrt,. ,4,c:cnt lo Nf hNdo tu.Al')/ ,. quartt'n. 34, I lun lJ\.•Ulc " u ornry G,,ry C. M11c:-k1.,t,y r(Hl4!10 JS . Preskte,u t)yAt'II 1IHu1 1mi-s4:dl hc ,i.~·, 1 m,d 1hf! ,16, lrm nNlio'IU1 1:ili.!it Prtj,.ick:nl Oyar11with Prt.!ihl.i!nl nominate Fo11 P~y~ ,,Ho rn ey \\l tltl.am O. S 37. lmffiNM.it'~ aftft' 1h• JS. Tt.}«Mspag<0m.~ buidlf:55 mttt"'l< llw boArd ,ion fl' "~ "''.'otf• bus trip 10 ofcomm$S't W~cOM'ftM"d L)lnc:hburs, TC'nn«••e• . 10 t'~I offiOrr:t. And lill \ '.t• wtwnr m.nribtt$ and~· c.nndet o,n 1h11 \.'".:.nous dJ,.. toured thf' Jack Oaniel 0. r:ir,Un~l'l,·p.,nelt.. 1,l1tq,. 40. Uscenlnt int•ntfy 10 tou, 39 !:thown lwr.e-i6 411st;~ 1;,,- i"' "' hom °""'of W''°" barn!& g,uide ~laca.k~kC"""'), +'t. ~x· ._..._ ...,,., .... o1,i...... -.. CtQ w-cr" (l«-h to righO \\t#.1,"Ml.O"o~orAn,.._ tonand ~ire Ann and (fat ri9.h1)\\ 1il tiamH..Kerw\(!(ly. Tuk~ 41. Ah.er a tour 0, Lynch, ill.. &di Nncln,. square burs.Id $Uppft" .. tbr \\ hite daflein9and 1M' TmMMoN h lt.bbii 0. ~pan~ con "'.-,~ wn~ tM onkt of th« , , vened •• CumbC":rl,tnd «''4!nins.-nd a pttfec:1 l"nd Spring5 ..,.-fw,rt,;mernbfft. of ing lot a full-Iii~ •nnuill the: Jack Oanicl Ots1Ul~ry -~ling . Nu~rassBand t:nttttniMtl 1'hl'AlabtJlft" l..n1111n 247 1985-86 Committees and Task Forces of the Alabama State Bar Roben It Kracke - Birmingham f\ lnbao1a State Rnr Comn1ission ers 0 Committ ee s: Keith B. Norman- ri.1on1gomcry Supr c111c Cou rt Llah,on Comn1it tee Grover S. ~1cl.eod- Birmingh:un Adviso ry Con1111ittcc lo the Chainnan: Board orB ar Exa,niner s Ex Officio: Gorman R.Jones.Jr. - Sheffield Roben C. Esdale- Montgomery Chain11an: Staff Liaiso n: John 8. Scou.Jr. - Momgomcry Charac te r and Fitness Co 11111Uttce Mary Lyn Pike - Montgomery Stat! Liaiso n: Me mbel' s : Rc.,ginDld·r. Hamner - Montgomery Cbainnan: John B. Scotl - MO,ngomery \VandaD . Devereaux - ~1ontgo-nery Mentbcrs: IV.Ha rold Albriuon. Ill - Andalusia John Hollis Jackson.Jr. - Clanton Ex Officio: J. Gorman Hwston.Jr. - Eufaula Staff Liai so n: James I,.. North, Presidenl- Birmingham A.J. Coleman- Decatur NormaJean Robbi ns - Montgomery \Villiam D. Scruggs.Jr,, Prcsidcnl·ek'Cl - Forl Payne Panel I Me mb ers : J. Bernard Brannan.Jr .• Yl,S President- Boar d of Edi tors, DavidB . Byrne.Jr . - Montgomery f\1ontgomery The /\lll ha,,,u /.,t111,·vr HowardA . Mandell - Mon\gomery Con1nlilLcc on Correctional Chairman and Editor: Pan el D Members: lns1itu1ions ond Proccdw ·cs Robert A. Huffaker - Montgomery William A. Davis. Ill - Birmingham Chairn1a.n: Associ at e Editor: JamesJ erry Wood- Monlgomery l\11chael 0. Godwln- Brew1on CarolAnn Smith- Birmingham Al J.Sansone - Mo1ngomc-ry Vice Chairman: Staff Liaison and Man ag ing Ediior: Pan el Ill Memb ers: f::'tank R. Parson.s- Birmingham Margal'(>tL Dubberley - Montgomery CarolineW ells Hinds - Mobile Chaim1an Emeritu s: M en1.bers: James). Thompson.Jr. - Birmingham JohnC . \\Intkin $ -Tu scaloos;, Patrick H. Cravc.'S,Jr.. - Hunlsville DraytonN.J ames - Birmingham Champ Lyons. Jr. - Mobile Y LS Repre se ntati ve: Julia Smeds Stewart - Birmingham Commiu ec on a Clie nt Scc nril y Fund BobbyN . Brighi - Montgomery frank B. Pous - folorence Cl1ain11an: Staff Liai son: J. ri.1ark Vlhite - Pittsburgh,P ennsylvania Mary Lyn Pike - Montgo1ncry C. Slephen Trlnirnicr- Bim1ingham James S. \Yard- Birmingham SusanShiroc:k DePao la - l\-1on1gomcry Vice Chairman: Me mbe r$: ~1ichael Fraser Ford- Tuscumbia LowellA . Womack - Tuscaloosa Deborah S. Sanders - Deatsville Phillip E. Adams. . Jr. - Opelika GreggB. Evcrcn - Montgomery George M. Taylor, Ill - Birmingham YLS R eprese nta tive: John Ed\1;,•ardOu - Binninghnm Robert P. Denniston- Mobile Harry P. Long- Anniston Bert W. Rice -A tmore J~Mi chael \ViUianlS, Sr. - Auburn Staff Liaison : Thomas 8. ESl<'S- Phenix City ArnoldW. Umbach. Sr. - Opelika Thon1as Sullivan- Birntlnghant Carroll It Sullivan- Mobile ReginaldT . Hamner - Montgomery WilliamIi. Manasco- Carbon HIii S1even L. Wist - l'uscaloosa Memb ers : G uy L. Burns.Jr.- Birmingham Gn.ogoryIt Hav.1ley - Birmingham DavidS. Yen - Opelika Shelby L. Starling. Jr. - Jacksonl'ille J;imcsN . Bro,\'ll, HI - Birmingham Susan B. Mitchell - Birmingham EdwardH . Stephens - Birmingham Joe R. Whatley. Jr. - Birmingham Man•in L Stewa_rt,Jr. - Binningham Abigail Tumer - Mobile \Valter G. \Vard- Lanc11 Michael E. Ballard - Mobile Charles R Caddv - Millbrook Lynn RobertsonJackson - Clayton Lee H. Copeland- Montgomery Sydney AlbertSmith - Montgomery 248 September 198.S O.:bornhA. f:n,, - Montgomery Karenl..1Mort0u• Bryan - Tuscaloosa Eul!(ncR Venn - 8,rmmgham C. Rob ALL YOU WANTED TO KNOW ABOU T AFFORDABLE TERM LIFE INSURANCE - IOL TA BUT WERE AFRAID TO ASK FROM COOK & ASSOCIATES /FromPQ9e mi Coffl?il ·e chase tow ~'lmo k:et 1nnuat tales lo, non· decteas,ng g,...;ec, premll.lm hfe Q. What are the benefits ol participating in an IOLTA program? IIA.L.E AG£$ S25G.OOO SS00,000 $1,000,000 A. II the program in Alabamawere to be designed1n 1he same 25 230.00 '15 ,00 &15.00 fashionas the Floridaprogram then allattorneys withinfirms 30 U2.50 <20.00 &15.00 participatingIn 1hc IOLTA program aulomalicaUywould be· 35 235.00 <25.00 &25.00 come membl!rsol the bar foundationand would have a voice •o 302.50 5<5.00 805.00 in the disposition or the foundation's funds. No matter how 45 377.50 695.00 1,035.00 the Alabama IOLTA program is designed there is no doubt II so 495.00 925.00 1,375.00 would providea n excellent opportunitylor the legal commun· 55 737.50 1,385.00 2.0&S.00 ily or 1hestate lo aid law-related public interest programs. 60 1.235.00 2,305.00 3,<45.00 65 2, 150,00 3,990.00 5,975.00 Q. What is the source ol inlonnation given in this t• mok..- , "'" tl l(lhlly hl(lhor ) article? Renewable to age 100 ~ma.Jo rat.es Amo as rna.leS four A. l1le$e questions and answers were 10 a large extent yea/$ younger AH c:o.eroge l)(OvlOOCIby companlti rated adopled from a pamphlet prepared by the Supreme C.oun of "A ExceHen1· by AM . Bell C<> Florida,The FloridaBar, the FloridaBar Foundation andthe For a wnnen quouhon anc:11pollcy detcnp CJon send Special Commission to Implement the Interest on Lawyers' your daie 01 bh1h and amount of covtraoe deslfed to· Trust Accounts Program. In addition, inlormauon has been obtained from 1he National IOLTAClearinghouse and from COOK & ASSOCIATES 1hc Legal Services Corporation or Alabama, Inc.: the Bir· 2970 COTTAG E HILL ROAD • SUIT E 201 mlnghamArc a Legal Services Corporation, Inc.: Legal Servi MOBILE, ALA BAMA 36606 ces of N()rth Central Alabama, Inc.; and lhe Texas Leg~I (205) 476-1737 Services Center Alert (March 1985). 0 Thr Alal>tluuJ /..1111J)'M 249 TommieJean Wollan- Mcntgomery Finn nee Commir1ee II. Williamw...i,n - Montgomery Membe rs: BennyL Rolle 250 5,p/,nobrr 1985 V \\fn)1ni.•Cau!'!t'y - Ctl~ra Anne L Maddox - Tu T/i, Jlill/NJ1m,l..••'J'r Co-chainnan : M embe r,,: Srnfl Liaiso n: J•mc,,K. 1131«<- llonmngham ~ II Aur- Monlgool ~pt,mb,, 1985 )1cmb cn.: Cu,c hnirmnn: Member s: Fr:inkl1r1C. Shuler. Jr, - Rirmingh:uu 'l'hnd G. Lon)! - l!inninghon> Jam 1iu· Al11boma/..011,)Tf cle opportunities ESTATEPIANNING WORKSHOP 11 friday Hilton.Huntsville Sponsoredt,y: AlabamaSociety or Certified INSURANCE PublicAcXOuntan\$ MontgOmeryav lc center Credits: 16.0 Cost:S 180 Sponsoredby: AlabamaBar ln stlt\Jtefo r For Information:(205) 834·7650 ContinuingLegal EdUGltlon Cn!dlts:6,2 Cost: $75 ForInformation: (205) 348-6230 13 friday REALESTATE USEOF MICROCOMPU'TERSIN IAW ~ 1M.Airport BIVd..Mobile FIRMSIN 1980s Spoosom1 by: AlabamaBar lnstml!I! for B4nningham-JeffersonCM: Qnter ContinuingLegal £ducatlon 17 thursday Spouscnoby: AlabamaBar Institute for Cost: $75 ESTATEPIANNING FOR THE VERY ContinuingLegal Education Forlnformatton: (205) 348-6230 WEALTHY credits: 3.0 Cost: $75 Cuml)erlandSchool of Law.Birmingham For Information;(205) 348-6230 Sponsoredby: Cumbel1andInstitute for CLE undthe Estate PlanningCou ncil of Birmingham 19 thursday Credits:72 Cost, $75 For Information:(205} B70-2865 REALESTATE Von 6'.1111Civic Cen!i!r. Hun!SV\lle Sponsoredby: AlabamaBar tnsbMe for TAX FORTitE GENERALPRACTITIONER Continul1'glegal Education MontgOme1YCivic center Credits:6.0 Cost: S75 Sponsored by: AlabamaBar Institute for For Information:(205) 34&6230 ContinuingLegal Education Credits:6.8 Cost: $75 For Information:(205) 348.(;230 PRACTICALASPECTS OF REALESTATE FORECLOSURE 3 thursday MontgomeryCo unty Courthouse INSURANCE Spcosoredby: M ontgome,yCounty Bar VonBraun CMc Center. Huntsville 17 18 Association 5pot1SOl'edt,y: AlabamaBar Institute for LABORLAW INSTITUTE Cl1.' 25-1 15 friday 4 wednesday EQUALEMP LOYMENTLAW 1985 SURVEYOF ALABAMALAW PSYCHOLOGYOF A TRIAL The Biltmore. Phoenix Birmingham-JeffersonCivic Center Montgomery Sponsoredby, Defe<\SeResearch Institute Sponsoredby, AlabamaBar Institute for Spoosoredby, AlabamaBa r Institute for ' For lnformati00:(312) 944-0575 ContinuingLegal Education Continuing LegalEducatioo Cost:$75 Cost: $75 For Information: (205) 348-6230 For lnformatioo:(205) 348-6230 31 thursday MARITALLAW Von BraunCivic Cente r. Huntsville 21 thursday 6 friday Sponsoredby: Alabama Bar Institute for 1985 SURVEYO F ALABAMALAW BUSINESSTORTS AND ANTITRUSTLAW ContinuingLega l Educatioo QualityIn n. Airport Blvd.. Mobile Spoosoreclby, CumberlandInst itute for Cost: $75 Sponsoredby: AlabamaBar Institute for Continuing Legal Educatioo For Information: (205) 348-6230 CootinuingLega l Educatioo Cost: $75 Cost: $75 For lnformatioo:(205) 870-2865 For lnformatioo:(205) 34&6230 21-22 ESTATEPLANNING Birmingham-JeffersonCivic Center FEDERALTAX CLINIC Sponsoredby, AlabamaBar Institute for FergusonCenter. University of Alabama. Continuing Legal Educatioo Tuscaloosa Cost: $75 Spoosoreclby, University of Alabama. For Information:(205) 348-6230 AlabamaSociety of CPAs.Alabama State Bar.A labamaBar Institute for CLE 1 friday Credits:13 .8 12 thursday MARITALLAW For Information: (205) 346-6222 TRIALTAC TICS Birmingham-JeffersonCivic Center Birmingham-JeffersonC ivic Center Spoosoreclby, AlabamaBa r Institute for Sponsoredby: AlabamaBar Institute for ContinuingLegal Education 22 friday ContinuingLega l Education Cost: $75 Cost: $75 For lnformatloo:(205) 348-6230 1985 SURVEYOF ALABAMA LAW For Information: (205) 348-6230 MontgomeryCivic Center Sponsoredby: AlabamaBar Institute for ContinuingLega l Educatioo 7 thursday Cost: $75 12-13 CRIMINAL LAW For lnformatioo:(205) 348-6230 BADFAITH MontgomeryCivic Center Maniott. New YorkCity Sponsoredby: Alabama Bar Institute for Sponsoredby : OerenseResearch Insti tut e ContinuingLegal Educat ion For Information:(3 12) 944-0575 0-edits:7.2 Cost: $75 For Information:(205) 348-6230 13 friday TRIALTACTICS 8 friday MontgomeryCivic Cente r CRIMINAL LAW Sponsoredby : AlabamaBar Institute for Birmingham-JeffersonCivic Center ContinuingLega l Education Sponsoredby: AlabamaBar Institute for Cost: $75 ContinuingLegal Education For Information:(205) 348-6230 Credits:7.2 Cost:$75 For Information:(205) 348·6230 13-14 CAPITALLITIGATIO N 14 thursday 3 tuesday SheratonPerimeter South . Birmingham 1985 SURVEYOF ALABAMA LAW PSYCHOLOGYOF A TRIAL Sponsoredby : AlabamaState Bar. Alabama Von BraunCivic Cente r. Huntsvflle Birmingham Criminal OefenseLawyers Sponsoredby: AlabamaBar Institute for Sponsoredby: AlabamaBar Institute for Association. NationalAssoeiatioo CootinulngLega l Education ContinuingLega l Educatioo of Criminal OerenseLawyers Cost: $75 Cost: $75 Credits:11. 0 For Information: (205) 348-6230 For lnformatioo:( 205) 348-6230 For Information: (205) 264-0286 The Aloba11u1l.11r uyqr Members: Tuny S. llcbMlfl- R1rmlng!rnm Ri Th, Jl/,Jbama ,.,,..,., 2S7 ) 7he 'Pirst c§lmericaII, § 1P)ll1rll1C Serving the Nation's Legal Profession AliiolQlli HaJe Court llouse . JfonofuJu . Jlau.raii HawaiJ"sbeautJrulAlllolanl Hale which houses the state SupremeCourl, was jusl flflecn years old when First American Title Company was eslnbllshed In 1889. Today from Hawaii's courthouse. ac ross the land to far off places like Guam. Puerlo Rico and lhe United Kingdom. First American serves the legal profession. As the nation 's Lhlrd largest tllle lr,su rer. we are proud of our growth ond our unique spirit and dedication that sets us apart from all others! If It's service you need . .. get the First American Spirit! First American TitleInsurance Company STATEOFFICE : 1529FOURTH ST.. NE WO RLEANS.L A70 115 • (504)89 5-9911 NATIONAL HEADQUARTERS 11-1 E FIFTH ST , SANTA ANA, CA 92701 • (7J4> S58·32 ll SERVING TITLE IN SURAN CE NEEDS THROUGHOUT THE UNITED STATES Nflllawd 111irh77,e Firsr A111en'co11 Fi111111,·lal Corporo 1/011 GJljding the Circuits Esca mbia Coun ty Bar Association Lauderda le Bar is extended to Just ice Jonel;, the Alabama T he Escamb ia County Bar hosted the formal invest iture Bar Inst itute and those lawyers who gave of their time June 14 or Circuit Judge Earnest Rai• White and District prepar ing for and lecturing at the semi nars . Judge Gordon R. Batson at the Escambia County Court Ralph Young will serve as president of the Lau derda le house in Brewton. A crowd of over 300. including friends. Bad or I985-86 wilh the assistance of Bill Musgrove serving relatives. j udges and local attorneys. attended the invest i· as vice 1>resident and Robert Burdine, Jr., as secretary tu re. White was a1>pointed by Governor Wallace 10 fill the treasurer . newly-created second circuit judgeship for the 2l stJudicial Circuit. Upon Judge White's elevation to t he circuit court bench, Batson was appointed district judge for the 21st Judicial Circu it. McCall (left) . Hel msing Mobile Bar Associatio n White (le ft), Batson Over JOOmembers of the Mobile Bar Association al· Broox G. Garrell. Sr .. 1iast president of the Alabama tended a luncheon June 21. honoring Judge Dan T. McCall Sta te Bar and the oldest practic ing attorney in Escambia (Co11/i11ued011 page 282) Count y, offered remar ks on his many years as a practic ing auorney in the 21st Judicial Circu it and the many changes that had occurred during that time. Following the close or the investiture . a reception was hosted by the Escambia County Bar, and the womens' auxiliary of the bar served refreshments. JAMES G. MUNGER AND ASSOCIATES Lauderdale County Bar Association Fire/Bvildi ng/Safety Code Consuhan1s T he Lauderdale Bar Association completed a successful Fire/Explosior'\/Liability lnvest igarlons year with elect ion of new officers in t heir May meeting. Justice Richard Jones conducted a sem inar in December 1984. and a seminar was sponsored by the Alabama Bar P.O. SOX 1113 Institute for Continu ing Legal Education held in Florence. CULLMAN, ALA8AMA 35056 1~05) 73 9. 37 55 Alabama, duri ng Law Week 1935. The graLitude of the 1'JzeA/11bo nu1 /J11uyer 259 had begun to show in court a disdain for his opposihon as if he were the only law yer present with brains. He was not only cll!ller, but healso had solid legalconnec tions. His father-in-law was a chiefj ustice of the supreme court. His brother was a The Young Judge circuit ,udge. Vet, he lacked the tact of thesetwo men. He had a reputation or brawlingi n court, demanding and getting his way withJudges whom he intimidated by by the score. He earned a pistol, some· Grover S. Mcl eod times in his pocket or else strapped to his leg. And he often Ihr eatened to use it. He also rendered a,,aweso me appearance. His face was as red as his hair. His bushy eyebrows shaded crafty eyes that some· The young judge somberly looked at j ury wh,ch was to try his case against the times were as red as hot coals. He was Andrew Thomas standing In the door company: "Dear God.save us from the way, impahently wainng for him to reply. pam and suffenng causedby the cheating He was a tan. heavy-set lawyer, who was of AlabamaFuel and Iron agamst its em· dressed in a gray suit. His race was ex ployees . FOfgivethe lawyers defending pressionless; yet, his eyes registered in them - they do nol know the suffering tensity, whilehi s tall, stem.faced manner and misery 1ha1their client has caused wasso olficialand demanding. The judge the people or this State." The lawyerrep raised his eyebrOW$and moved his jaws resenting Alabama Fuel and Iron was so as ii he were chewing his cigar, though it taken aback that he did not object to the was in his hand; then in a voiceof resigna· statement, lost his case, appealed and lion, he said lo him, "Ill must, I must. But was told by I he high court that because Andrew. I don't want to!" he did not object, I here was noerrorforit "Judge, you must - it's been a long to explore. hearing - we're waiting - all the other The youngjudge had been subpoenaed character witnesses have testified," the lo testify on Denson's behalf. He had lawyer impatiently said, making it very ignored the subpoena, even the calls clear that he intended for the young from the bar commissioners 10 appear tall, heavy-set with an overpowering de , judge to rise and follow him - and he and give evidence as to the character of meanor I hat demanded he have his way. would lead him lo the handsome law li the defendant. Otherj udges and promi tf,s appearanccei n court was olten enough brary on the ninth floor where he and nent lawyers already had testified that 10 win cases fromany but the fearless. four other bar commissioners were hold· Denson's general reputation wasgood. It Young lawyersoften cringed ,uhen they ing a heanng for W.A. Denson, a promi· had been an imposition, but most had met him in court , and he talked down to nent damage suit lawyer who had been done it because it was the expected thing them about their lack of knowledge and practicing law for 35 years. He had spent to do; then, wha1did It malier? A lawyer skills. Most lawyers and judges did not most of his legal career suing large cor· was supposed to have good charac ter or wanl a confrontation with him, as he poralions, and in doing It, he had been a else he would not be practicing;then why seemed i111en1 on fighting, one way or fearless, bodacious trial lawyer, with a should not judges and lawyers step forth another. He often spoke of fightingthe record of considerable success. He had 10 help a lawyer on trial? ol her lawyer with his fists or with his attacked lhe corporation defendants as The lawyer on I rial was charged with weapons. Thus, whether by courtesy or though tht'Yneeded to beeradica ted. His solicitation of damage suits and the at (ear, every lawyerand judge that Denson tactics had been condemned by the de· tempi to bribe a witness- His great sue· had called In his own defense had testi· fense bar, but without success. Denson cess as a damage suit lawyer haQgone 10 lied thal his reputation was good. had been too strong, tooclever,ashenot his head ; he had becomeso arrogant and "Good - goodJ" had been their re· only knew the basic law, but was well self-centered that his enemies, including plies to his question about h,s general versed m trial tactics_ He had been so his compe1,tors, had convinced the lead· reputation. Allhad testified except McEl successful that some swore that he had ers of the bar that Denson had to go. roy; thus, the hearing was inshort recess cauwd the Workmen's Compensation Denson learned about lhebar'sdecision, while Thomas went for young Judge Act 10 be passed. He may have - his but foolishlycontinued to handle himself McElroy. Denson stood bv ihe counsel hatred for Alabama Fuel and Iron is le· in his old way, as if he were above and table with his hands on his hips, his lace gendary. Ii Is said I hat once he opened a beyond the discipline of Ihe organized stem and his linled red hair combed high trial In Pell City with a most uncommon bar. He always had had a sharp tongue, on his head, being closely eyed by a prayer, and the prayer was heard by the but as he became more successful, he hundred or more spectators. The bar 260 &pt,•111/Ju1985 commissioners having the duly of hear· and maimed and made a lot of money "Swear in the judge." ing the matter were sitting back in their because of it; even so, he conside red Denson stood in the center of the chairs. Denson saw the young judge himself to be a warrior on behalf of his room like a lion tamer; quiet came over striding toward him; he intently watched clients, pitting himself against the rail the room. Alleyes focused on him, sens him pass the stacks which held the oui • roa ds, corporat ions and insurance com ing the drama ; it was as though everyone of-state repor ts. He smiled and, in a mos I panies. It was not Denson, a person, but present recognized that the trial was solicitous manner, walked toward the Denson the lawyer, the warrior who about to reach a climax. Heretofore door to meet him. fought them. His face reddened . He there had been lengthy testimony abou t "Judge , I'm glad that you've come; 111 s,velled from the affront - he was used Denson chasing cases - bur that was take you nexl - you won't be here very to fighting the corporat e lawver - the not uncommon then or even now - law long - I'lljust ask you a couple of ques judges who sided with him - guts, it yers have to eat. lt was common knowl tions- " seemed to many that he had aplenty. He edge back then that most of the success · "I don't recommend that you call me, sincerely felt that he was a part of a class ful lawyers got their cases by runners to Denson," replied the judge, his eyelids struggle, maybe even a part of a religious whom they obviously paid commissions; flickeringas he chewed on his cigar. movement, though he was a rich rnan yet, this had been offset by testimony "Why?" asked the lawver, his face and lived in a big house. Men were being from a dozen lawyers and judges who flushing, becom ing much redder . His killed on picket lines - children were swore that Denson's charac ter was good. lower lip drooped, then quivered, while hungry because their fathers did not The testimony about his attempt to bribe his eyes steeled. have work - class hatred was in the a witness to change his testimony was "I can't help you!" winds - Denson 's mind was so clouded not so strong that reasonab le men could "You mean something is wrong with by his personal involvement in this class skirt it. He asked the young judge the my characte r?'' Denson asked with an struggle that he was not able to use the usual identification questions, received adamance which meant that irrespective skills that he professed he had, as he the proper answers; but this was not the of the judge's revealing to him that he often called himself "the state's greatest usual witness. Denson's eyes were as would not give him a favorable report , he damage suit Jawver." His temper would shiny as a fox's with bright light on them would use him as a witness, which would be his undoing! as he directed the followingquestions. thereafter perplex lawyers for years, as "Order in this room!" loudly declared "Are you acqua inted with W.A. much as why he had defended himself Files Crenshaw, the chairman of the five Denson?0 rather than employ a lawyer, for it has man commission, and he rapped on the "Yes." long been a legal adage: "A lawyer who table for orde r. The large, beautifully "Are you acquainted with his reputa represents himself has a fool for a client!" decorated room, having an extraordi tion in the community?" His questions "1would advise you not to call me as a nary mural of Alabama history on its wall, were always short, terse and very prof es. witness," the judge warned for the sec was packed with reporters , lawyers,court • sional. Even his critics would have agreed ond time, "as I would be under oath - house personnel and hangers-on . It was that he had the skills of a good trial would have to tell the truth!'' a cause celibre. The famous Denson was lawver. "1dare you to attack my cha racter -" on trial for his profess ional life. And he "As of the present time?" Spectatorssa,v the confrontation. They was defending himself. Some said that he "And before the present time?" eyed them and noisily whispered. What was making a circus of the proceed ing. "Yes, sir." was between the two men? He degraded witnesses , the prosecutor "Ever since you have been here?" "Attack!" and competing damage suit lawyers and "Yes, sir. I would judge so." "Yes-" negated the ability of the bar commis "Is it good or bad?" "Don'tca ll me!" sioners. The newspapers carried daily "I would rather not answe r that, Mr. "I want to hear what you've got to say accounts of his a11acks on lawvers, the Denson," he repliedand nervously blinked about me!" he said, spitting out his words railroads, large corporations and insur his eyes and made chewing motions. The - he said it as though he intended to use ance compan ies Denson claimed were atmosphere reeked with drama as Den his gun on the young judge. Reason had out to disbar "the best damage suit law· son, with his hands on his hips and his left him. The whole procedure already yer in this state." It was a rough and eyes steeled, faced the young judge, had becon,e personal. During the course tumble procedure. Threats and counter standing only a few feet from him. of more than a week of test imony Den threats had been made daily between "Well, I insist on an answer," he caus· son had divided the cou rthouse into Denson and the handsome, silver tically asked, as if daring him to say the those for him and those for the corporate tongued Roderick Beddow, who would worst. world. Denson clearly stood against the soon come to be the state's most promi• "All right, sir. It is unfavorable!" corporate world - and he had suppo rt· nent criminal lawver. His courage soon Denson's face reddened. Wrinkles ers - but that was expected. Times would become legend. He would try came to his neck. He glared at the judge. were hard. The country was in the midst hundreds of ce lebrated cases which He angrily faced him. It was evident to of a depression . It was March 1936. Den would make his name as well-known as the keen observers that the apex of the son's lot was with the have-nots, though that of the governor . trial had been reached. he had plenty. He was a damage suit "Who willyou have, Mr. Denson?" "Do you know his reputation as to lawyer who had sided with the injured "Judge J. Russell McElroy." truth and veracity?" The Alaba,nolAu'}'ttr 261 1•1 think so." inject into the reco rd that the young judge of lhe 10th Judicial Circuil and pro "All right, sir. Is it good or bad?'' judge had a reputation for tampering with fessor of law at the University of Alabama "Not favorable!" he replied. There was ju ries. He even made the statement to and Cumberland Law Schools. He au a loud murmur in the hearing room. All the commission that the judge shufOed thored the first treatise ever written on wondered why Denson had called as a the cards of the jurors in the jury box so Alabama evidence. An d in doi ng so, he witness a judge who obviously had pre that he was able lo pick those that he probably read every Alabama case re viously told him that his testimony would wanted 10 serve. But he was unable to ported. He retired In 1977 after having be unfavorable. He had to have known introduce any evidence as to I his charge, served for more than 50 years as a circui t something about the kind of man McEl and thus, his case worsened and finally judge. By then, the name of J. Russell roy was. He was not an ordinary judge ; collapsed. Denson was disbarred, which McElroy had become a symbol amongst previo usly he had distinguished himself was affirmed by the highes1 court. He the bar for truth and veracity. D by doing the unheard of and campaigning never practiced law again. He became a against an incumbent fellow judge, de· familiar, forlorn figure at lhe courthouse; daring throughout 1he county that the he was most always dressed in corduroy judge was incompetent. And he was! The riding pants, jacket and sundown hat. He Il l incumbent judge was handily defeated. made a daily trip 10 the law library, as ii ~ GroverS . Mcleod, "And do you know his reputat ion as a searching it for loose pieces of his case. • a Bin11ingl1am1w lire, la\vyer?" He read Ute library's books, made no1es, al/ended Bir111i11g· 111d o." talked of the old days to those who would ham Southern Col· "Is it good or bad?" listen and snoozed o n the leather couch. legea11dr eceived /tis law degl'ee fro m "Ull favorable." The young judge, on I he 01her hand, i lite U1tiuersily of Alabama. Sc/tool of And thus, the testimony of the young continued to try cases, some of which Law. He alsoat/ ended lite U11iuersity of j udge ended, but the effects lingered on were the most celebrated cases ever Wes/em Australia. His published ,wrks like bad perfume or dust after a noisy tried in Alabama, one of which was State include Civ il Actions at Law in Ala· explosion. It also made an impact on the u. Fuller. Fuller was charged with ilie bama, Equitabl e Remedies and Extra defendant trying his own case, as later on assassination of an allorn ey gener al ordi nary Writs in Alabama ,md Trial during 1he proceedings he attempted 10 nominate. McElroy became presiding Practice and Procedure in Alaba ma. FBI Special Agent Career Opportunities The FBI has inili aled a search fo r qualified candidales lor the posilion ot Special Agent. Applicants must be U.S. cilizens. availab le for assign menlin lhe U.S .. between 23and 35. possess valid driver's license and be in excel lenl physical condition allowing use ol llrearms and delens ive tactics. There are live entry programs : • Law: J .D. or L.L.B. degree fro m residenl law school. • Accoun ting: Bachelor's degree with account ing major . Must be eligible to lake CPA exam. • Language: Bachelor's degree . fluency in Chinese. Russian. Arabic. Spanish . and a variety of Slavic languages . 'Engineer ing/ Scienee: Bachelo r's degree In electrica l. mechanical or computer science engineer ing. 'Modified : Bachelor's degree plus three years full time work experience. excluding summer and part-time employment. The Bureau is curren tly !asked with primary investigative responsibililies in Organized Crime, While Collar Crime and Foreign Counlerintelllgence and has concu rrent jur isdictio n in narcot ics matte rs. SA en1ry level salary isS24,011. rising to $30,013 within firsl year. While the FBI is Civi l Serviceexcepled agency, !here are a variely al benefits in U.S. Government service. includ ing re1iremen1,group health and Ille insurance programs, inc ludi ng sick and vacation benefils . Applica1ionpro cedures include testing, For further informatio n. contact ~ Interview. backg round investigation and Special Agent Recruiter physical exam . Mobile FBI: 438 - 3674 Birmingham FBI : 252-7705 M o ntgomery FBI: 263-1691 Tho FBI is an equal opport unity/ At/Ir~ mativa Action employer . 262 St-pt,mber1985 PINKERTON'S INVESTIGATIVETEAM. Roben J . McG uire Rober t F. Uttle john Chairmen,Clue! Execuriw Off,c,er As.st. V.P., Di.re<;tor,lnuestigario,is Formerly f>o6ceCommrssion of FonnertyInspector , New York Cily New York City Polite Department .. Pinkerton buih its reputation in a "No ooe is more qua!ifled for the 1ou9h business. I, and the New York demands or investi~tiw: work than City PoliceDeparcment, built ours ina this man. He comma1,dedone of the toogh city. Problems are Puikerton's nation's toughest narcotics: districts . Specialty. Tough, invcst.gildve pro, He WM also responsl'ble for directing blems 1ha1 require ddica.te and in, New York City's most sensitive under· novative solutions. We get these as. cover i.nwstigationsinlo terrorist and sig:nmenls because in this business ma;or criminaJorganizations. He also two things counJ · experience and assisted major eo Foundedi n 1850,Pinkerton's was thefirst privatedetecliveagency on the North Americancontine nt. Today, as the largest private investigativefirm, our expertise is regularlycalled on by ottameys to assist in a variety of ways. Thefol/awing brief au/line of our services might suggest an area in which we might be of help to you or to ane of your clients. PLAINTIFF,CRIMINAL ANO DOMESTICINVESTIGATION · SURVELLANCE• lnrespon.se to a variC'lyof pioblo:rns.our personnel, A new dimension of services fromPinkerton's. equipped with photographicequiprnenl, conduc t surwillanc.eof indivi When y0u fltcd w,cquol1edex~ riencc ond ~.xp,41rtiu,con v$. Wo'lf coo11.seJyou of no cost, evenin coses where yotunisf1trtot wont to ide.nfW 900 West ern C ircle )'Otirclients untilyou are sa.rjsfiedwehove ttosonablesotu ri'ons.Coif Joo Mobile,AL 3- Corlohonor ow MobifeOffice,{205)343.JOl4 or Stew Southfffond ot the ,P._ 8i...,,;,,g}>amOjfice ·/205)-942·3996 90 Bagby Or. St•. 302 For peace of mind in a tough world. 8 iTmingham.. AL 35209 ., , Artwork court ~•Y of The Maryland Bar Journal reflects the Alabama State Bar's continu ing commitment to the development and support of activities to improve the legal IOLTA - "NOW"Provides system. New Interest IOLTA IN ALABAMA Alabama is proposing a voluntary - opt•out IOLTA program to be estab· by lished by the Alabama State Bar Board of Rowena M. Crocker Commissioners. The approval ol the AlabamaSupreme Court will be required pursuant to §34-3-43,Code of Alabomo, The Alabama State Bar, through its Task Force on IOL TA, is considering adopting 1975. a program allowing the pooling of otherwise unproductive client funds held in Certain quest ions arise concerning lawyers ' trust accounts into interest·bearing accor.mtsfor funding /aw-related char· IOL TA. What are the tax consequences itable and public interest activities. ofinterest generated by IOLT A accounts? Adopted in 37 states, the concept is discussed here by task force chairman What is the availability of NOW accounts Rowena M. Crocker and member Stanley Weissman. for use in an IOLTA program? Are IOLTA programs violative of the "Tak IOLTA is an acronym for "Interest on clienl. However, many lawyers' trust ac· ing" provision ol the Fifth Amendment? lawyers' Trust Accounts." IOLTA is a counts are sosmall in amount or are held What are ethical considerations of the program allowing lawyers and law firms for such a short period of time that the attorneys dealingwith funds in escrow or to establishinterest -bearingtrust accounts cost of administeringindividual accounts trust funds? for client funds which are so nominal in !or each client or of having interest com· amount or which are expected to be held puted and allocated to individualclients TAX CONSEQU ENCES for such a short period of time that it is exceeds the potential earnings. These In a proposed IOLTA program the not practical to earn and account for in client trust funds traditionallyhave been monies would be paid to the Alabama come on individualdeposits. deposited in aggregated non-interest law Foundation, Inc., a non-prolit cor bearing trust or checking accounts. This poration. The foundation has nine trus HISTORY certainly benefited the financial institu tees selected by the board of bar com tions, but left substantial amounts of mo· missioners, and up to six additional trus· IOLTA programs originally were es ney idle in banks, earning no interest. tees may be selected by the board of tablished in Australia and Canada in the The underlying theory ol lOLTA is to trustees at its discretion. The IOLTA 1960sand are activein 22 English·speaking put these otherwise idle funds to work !or program would be implemented and ad countries.When bankingprocedures were charitable purposes by transferring them ministeredby this foundation.All i nterest changed to permit interest to accrue in the aggregate to negotiable order of is paid to the foundation, and from this on trust accounts, Florida undertook to withdrawal("NOW") checking accounts interest monetary grants willbe made to implement the first IOLTA program in which bear a fixed rate ol interest. The fund permissibleactivity. the United States. interest earned on these funds would be The purposes for which IOLTA funds To date IOLTA programs have been paid directly from the financialinstitut ion are used must meet the criteria for tax adopted in 37 states, although programs to a not-for-profitcorporation for use in exemption under Sec. 501(c)(3) of the are operational in only 21. From these 21 specifiedlaw •related public interest activ· Internal Revenue Code. Purposes which over $32,000,000have been collected in ities. The result is to provide for public have received favorable IRS rulings are interestincome. benefit without cost to the taxpayer, the the Client Security Fund, IOLTA pro lawyer or the client. The proposal to es· gram administration,continuing legal ed· THEORY tablish an IOLTA program in Alabama ucation, indigent fee programs, legalser· IOLTA is simple in concept and opera· tion. The fundamental premise of the program is a recognitionof the traditional role of attorneys who receive funds in trust from their clients to be held for future transactions. Although the Code of Professional Responsibility does not Rowena M. Crockerreceived her1mder grad110/edegreefromBirmingham Sou/h impose an affirmativeduty on lawyers to em Collegeand her law degreefrom the invest client funds, where such deposits Cumberland Schoolof Law. She pres are significanti n size or are to be held for ently servesas an assis/011/city allor11ey a significantperiod of time, the attorney for the City of Birmingham a11dis the customarily deposits them in an interest· chairman of the Alabama State Bar bearing account !or the benefit ol the Task Force011 !OLTA. 1'he Aloba,110ln11 ,y1•r 265 vices lo the poor, cou nty and state la,v diminished, and is not economically sepa rate interest -bearing account, and libraries and student loans and scholar · capable or generating net income no charge of et hical impropriety or pro, through deposi1s on inves1ments ships. Application would be made to the Je. fessional misconducc shall attend an ex gaily available for lawyer's 1ruS1funds , foundation on a year ly basis requesting thec lienl retains no meaningfulr ight of ercise of judgment in that regard . An grants . The grant proposals would be controlexcepl to recover the principal IOLTA program is fully cons istenc wich reviewed by the foundation and gran ts upon a request made before it Is pro• che lawyer's ethica l ob ligations under appropriated from the available accumu perly expended ." Canons 2 and 8 of the Code af Profes la ted funds. The favorable ruling by the cou rts io dace sional Responsibility to make legal ser · The IRShas ruled tha t interest earned on this issue certainly speaks co a posi vices more fully available and under on these client trust accounts and paid to tive and e ncourag ing atti tude that I he Canon 9 to provide for the administra the foundation for the IOL TA program is cou rts hold toward JOLTA programs . tion of justice. (ABA Forma l Ethics Opin · ion No. 348, dated July 23, t 982) not income Mr taxable to either the law, ETHICAL CONSIDERATIONS yer or client, and the entire beneficiary of CONCLUSION the IOLTA income is the foundation . TI1e lawyer's traditional fiduciary obli· The interest will be reported to the IRS gacions to safeguard funds for the benefit An JOLTA program will provide the by the financialinstitut ion using the found of the clienc would remain unchanged . Alabama State Bar with funds to expand alion's tax identification number . No new decisiona l burden would be im its own programs designed co enhance posed on the lawyer . Lawyers would the profession and also coaid many ocher PERMISS IBILITY OF NOW continue to soundly exercise their dis programs having impac t upon the deliv ACCOUNTS cretion in determining whether a given ery of and access to legal services at a The general counsel of the Federal Re client's lrusl deposit was of a sufficient critical time when traditional funding serve System has opined that NOW ac size or duration to justify placemenc in a sources are becoming scarce . D coun ts may be utilized in the IOLTA program by any participa ting law firm, sole practitione r, partnership or profes, SCARLETTO'HARA DIDN'T sional association and for all deposits HAVETO GO TO WAR OVER TARA. held in trust for individuals, partnersh ips and others. DUE PROCESS IOLTA so far has withstood the cou rt challenge. Two sepa rate lawsuits have been filed testing che legality of IOLTA programs in California and Florida. The Florida case, filed in the U.S. "'1iddle Dis trict of Florida, alleges that the payment of incerest earned on a client's principal held in trust to a ba r founda tion consli · lutes a tak ing of theclienfs property in con travention of the Due Process Clause of the Fifth and 14th Amendm ents lo the If Sca rlett had insu red Tara with title insurance U.S. Constitution . A preliminary injunc from Mississippi Valley Title, she wo uldn't have had tion has been denied. Glaeser, el al u. to lie, cheat or steal to protect her wope rty. The FloridaBar, el al, C.A. No. 84, 1345, That's because we defend you r client's title against CIV-T-13. In Carrollu. State Bar of Cali, all c hallenge s. so you don 't have to fight batt les for their fornia, Court No. N22139 (San Diego rights. And that 's why people all ove r the cou ntry choose Superior Court), the California Court of MVT for the ir tit le insurance need s. We have a staff of Appeals ruled in December 1984 the dedicat ed professionals and a re fully compute rized to serve you qu ick ly and effic ien tly. state's IOL TA program did not violate Insu re with Mississipp i Valley Title - so one day the due process clause. The cour t held you won 't find your real estate go ne with the wind. the client suffered no real econom ic loss since nee income alter offsetting transac tional costs against the accrued interest would be nil, a t best. Such an "abstract" economic interest is not subject co mone· tary compensation nor is ir subject to the protections of the Fifth Amendment . MississippiValley Title InsuranceCompany The California co urt co ncluded: Home Office. lackson, MS 39205 ..So longa.s 1he prin cipal is secure, not \\'1,ollv Oo\Tll.od>tJIJ5.1d i.1,v ot T11k•lnwr.i nc:\! COlnpanv of ,M1111"'-"".1 266 S,p/emb by Stanley Weiss man Q. What is IOLTA (Interest on Lawyers' Tru st Ac by the state supreme courts. In a few separated cases other counts)? proposed uses are: to provide aid to law refonn projects A. IOLTA or Interest on Lawyers' Trust Accounts is quite (Hawaii);the development of lawyer referral programs, de simple. Attorneys often receive funds to be placed in trust for velopment or a client security fund and improvementor griev future use. If the amount of the funds is largeor ifthe funds are ance and disciplinaryprocedures in the bar (North Carolina); to be held a long time, the attorney would be expected lo to help prevent crime (South Dakota); and to cover adminis deposit these funds in an interest-bearingaccount so his or trative expenses of IOLT A programs (Californiaand Rhode Island). her clientwould obtain the interest..However, i f the amount of the funds is small or if the funds are to be held a short time it is Among the actual uses of IOLT A Funds in the above men ;mpracticablefor the attorney to put the money in an interesl tioned 10programs are providingsupp lementary support for bearingaccount because the amount ofinteresl earned would federally funded legal services programs, bar associations' be less than the cost of setting-up and administering the pro bono programs and other legal projects sponsored by account. private, lawschool and church-related organizations.Among Until a few years ago, American lawyers could put such these projects are a disabilitiesadvocacy center and a domes smallamounts or short-term funds in comminglednoninterest tic violenceproject. Some grantees are usingI OLTA funds for bearing checking accounts. However now in many states, additionalstaff or general suppart; however, other grantees such as Florida, North Carolina and Maryland,IO LT A pro are initiatingor supplementing senior advocacy projects, grams have been instituted and attorneys now place these juvenileprograms, familyl aw clinics, guardianship programs small or short-term funds, which would otherwise be idle, in or representation or the institutionalizedand handicapped. interest-bearing accow1ts, and the resulting interest is for· Q. ls t he idea of an IOLTA program new? warded to a charitable organization which ultimatelyd istrib utes the money for use in law-related public interest pro A. No. Sometime ago, in the search for new fundingsou rces grams. h is to be emphasized that lo the extent lhal interest for the operation of the organized bar and for legal services on any client's depasit could be used for the benefit of the delivery programs, several English-speakingjur isdictions de client, the IOLTA programs do not alter the long-standing veloped programs which placed clients' funds in interest• fiduciary obligationsof the legal profession. bearing accounts. The interest generated then was used for legal aid and other projects to improve the administrationof justice. The development of these programs in common-law Q. What do the IOL TA progr ams do? jurisdictionswas facilitatedby two factors: one, the bar was A. The interest earned from the depasit of small funds and regulated, and, two, the banking system provided interest short-term funds is sent to the state bar foundationor other bearing demand depasits. In the 1960s the bars in a number of organizations which have been designated to receive and British and Canadian jurisdictions established IOLTA pro distribute IOLTA funds. grams which used the money generated to support legal aid, Foremost among the uses of the IOLTA money is the law libraries, scholarships for law students, clients' security provision of legal aid to the poor. At present, 10 programs funds and projects for the improvementof the administration have distributed IOLT A income: Florida, New Hampshire, of justice. Since then the idea of IOLTA has spread widely. Colorado, Minnesota,Maryland, De laware, Oregon, Virginia, California and Illinois.In all of these programs at least 80%of Q. How wides prea d are IOLTA programs? the money has been given to provide legal services to the A. Since 1972 there have been in existence IOLTA programs needy - almost $13 million. Another approximately $1.1 in 22 English-speakingjurisd ictions, includingCanada, Aus millionhas gone to assist law students and law-related educa traliaand South Africa. Such programs are currently in oper· tion programs and lo fund administration of justice projects. ation in 1he Republicof South Africa,Southwes t Africa,Z im Generally speaking, the uses for which the IOLTA money babwe, the Australian States of Victoria, New South Wales, have been approved are legal aid to the poor, law-related South Australia, Queensland and the Australian Territory, education (including student loans), the administration of and also in the Canadian Providences of Ontario, Alberta. justice and other programs for the publicinterest as approved Manitoba, New Brun~wick,Prince EdwardI sland, NovaSeo- Thi' Alabo,nhJ.1111 1J'(IJ' 267 tia, Saskatchewan, Quebec, Yukon, the Northwest Territo• discretion and willcontinue to make fiduciarydecisions based ries and British Columbia. In the United States there are 18 upon considerations of associated costs, tax ramifications, operational IOLTA programs: Florida, California, Idaho, practicabilityand other factors. Maryland,Colorado, New Hampshire, Minnesota,Oregon, Virginia,Illinois, Oklahoma, Delaware, North Carolina, New Q. ls there some guideline an attor ney can use to decide York, Utah, Verrnont, Arizona and Kansas. ln addition, 17 which trust deposits are to be used in an IOLTA other states' IOLTA programs have been approved by the program? stale supreme court or enacted by the state legislature.These A. Yes. The program developed in Maryland uses a "$50 programs are: Nevada, Hawaii, Georgia, South Dakota, Benchmark."Thesignificance of this$50 standard is based on Texas, Nebraska, Mississippi. Connecticut, Washington, a study done in Maryland to determine the cost and office New Mexico, Arkansas, Missouri, Tennessee, Rhode Island, overhead for a law firmor an attorney to open up a passbook Iowa, Ohio and Louisiana. account for the benefit ofan individual client. TI1isstudytakes into account the expense in securing the client's SocialSecu Q. Why is an IOLTA program needed in Alabama? rityNumber , openinga passbook accOu)lt,accounting for the A. Approximately85 % of the legal needs of poor people in interest on the law firrn's books, fumishingform 1099 at the Alabama are presently unmet. According to the data of the end of the year and accounting for the funds and issuing a United St-atesCensus Bureau, the poverty populationof the check when the account is closed. The Maryland study con, state of Alabama in 1980 was approximately 720,000: also cluded all these items would require an overhead of at least according to a study by the legal Action Support Project of $50, and therefore it would be economically impractical to the Bureau of SocialScie nce Research, using data collected open an individualaccount unless it were reasonable to ex• by the American Bar Association -and the American Bar peel the minimuma mount of the interest generated wouldbe Foundation it was estimated approximately23 % of the pov $50.Following is a table developed in Maryland showing the erty populationwould have one or more legal problems in a amount of principaland the length of timeneeded to generate year. If was stated these figures do not take into accow1t $50 of interest at 5 1/4% compounded daily. individualswith multiplelega l problems and, thus, the estima Principal Deposit Numb er of Days to Generate $50 tion seriouslymay understate the actual legalr equirements of the poor. In 1984t he three fieldprograms supported by the $ 500 654 $ 1,000 335 Legal Services Corporation closed approximately 23,150 $2,000 169 cases. When this number is compared to the need as esti· $5,000 69 mated from the 1980figure for the poverty populationand the SI0,000 34 estimation of the legal requirements of indigent people, it is $20,000 17 seen that only about 14% of the legal needs are beins taken $30,000 12 care of. It is to be understood that these numbers are only The above table, or one similar to it, can be used by an approximations and estimates. The unmet legal needs of the attorney to make a good faith judgment as to which funds poor are probablygreater because unemploymentin the state should be used in an IOLTA pr0gram. of Alabama has increased significantlysince 1980,and the standard for eligibility for help from the fieldprOgrams is 125% Q. Does participation in an JOLTA program deprive the of the poverty level. Also, the field programs presently are clients of their interest money? getting approximately80% of the funds whichwere provided A. No fOLTA program ever uses interest money fromclients' to them in 1981. trust deposits which are large enough or held for a Ions Also, an IOLTA program is needed because in recent years enough time intervalto generate interest in an amount greater the funds availablefor student loansa ,1dthe administrationof than the costs of establishing an interest-bearing account. justice projects have been reduced substantially and, in addi Only those client trust deposits whichare nominal in amount tion, lawlibr aries s.houldbe maintained and expanded. Partic or held for short periods of time such that it would be imprac ipation in an IOLTA pr0gram presents an excellentopportun tical and uneconomical to set up as a separate accaunt are ity for additional public service by the legal and financial used. Thus, no client is deprived of any practicable income communities of the state of Alabama. opportunity. Only those deposits for which Jhe sum of the -administrative costs to !he Jaw firrnor attorney, the service Q. How would an IOLTA program affect my curren t charges of the financialinstitution and the tax liabilityof dients trust fund pra ctice? is less than the interest yieldedwould be used in an IOLTA A. Jr an IOLTA program is adopted in Alabama which is program. That is to say, if the amount of money or the similarto the programs tha,thave already been instituted in so duration the money held is such that the clie11t can obtain many states such as Florida, the program would impose no interest in a practical fashion, the client's money is not used in new decisional burden upon Alabama attorneys. lawyers the IOLTA pr0gram. always have had to exercise their sound judgment in deter· miningwhether a particular trust depositwas of sufficientsize Q. Can an atto rney continue to invest trust fund monies or Ions enough duration to justify placing it in a separate on behalf of clients if the attorney particip ates in an interest-bearing account with the interest payable to the IOLTA program? client. Under an JOLTA pr0gram attorneys still retain this A. Yes. When a client requests, interest·earnings should be S,p/e,11/mr198-1 made available to the dien t whenever possible on deposited The modelcode also impases no duty to obtainpr ior consent lunds which are neither nominal in amount nor held for short or to notifyclients of the application of their funds in the periods or time. As is the customary practice, such large, programs described above. Ahho,.ghkeeping the cnent in formed about the programis laudatory,here , as a practical short-term client deposits or modes! deposits which are held matter, the client'sf unds canl'\Otbe placed al interest for the for a long time are invested by attorneys in interest-bearing benefito f the individualcl ient. Therefore,the lawyerhas no accounts for the benefit of the client. ethical responsibility to advise the clle,,t 1hat the h,terest ea med willbe used toward fundinglaw -relatedpublic service Q. What are an attorney's ethical obligations under an projects. /n re Interest 011 Trust Accounts, . .. 402 So.2d at 396. Furthermore,it is ethicallyproper without the client's IOLTA program? consent to allow the applicationof a port.ionoff he earningson A. As in any other circumstance, attorneys and law firms are these fundsto reasonable bankcharges , as distinguishedfrom precluded from earning interest on funds which they hold in the law firm's own expenses, for performingthe additional computerization, transfer and reporting called for in 1he trust for clients. When a client requests , the earnings on programs. depos ited funds which are neither nominal in amount nor held The committeerecognizes t hat the bar kmg has been sensi for short periods of time should be made available to the client tive to its role in the careful stewardship of clients' monies whenever administratively practical. Such large, short-term entrusted to lawyers.11,ecommittee findsno conflict withthe client deposits and modest deposits held for significant time principle of carefulstew.1rdsh ip when a lawyer participates in intervals usually are invested by attorneys in interest-bearing the state-authorizedprograms described f essentiallythe Flor· accou nts for the client's benefit with full disclosure. ida IOLTA program). Canon 8 of the modelcode says ''[a] Formal Opinion 348of the American Bar Association Stand · lawyer should assist in improvingthe legal system." This standardof conduct is advancedwhen a lawyer participatesin ing Committee on Ethics and Professional Responsibilitywas a program which puts idle funds to law-related publicuses. published in the November 1982 issue of the American Bar Moreover,by focusingattent ion on the earning5potentia l of Association Journal. In this opinion the committee found lawyert rust accounrs.th ese programsha ve the addedbenefit nothing in the Model Code of Professional Responsibility that o( encouraging lawyers to eam interest for clients on trust funds where the expected interest is more than the cost of would prohibit any attorney from participating in a state· adn1inisteringthe account... authorized IOLTA program, similar to that established in Florida. That is to say, if the program used interest earned on bank accounts in which clients' funds, nominal in amount or Q. Are there any add itional administrat ive dut ies for an to be held for a short time, were deposited and the interest atto rney participating in an IOLTA program? was paid to a tax-exempt organization to be used to fund law-related public interest projects, then there is no conflict A. lOLTA programs generally impose no new administrative with the model code. The opinion stated in part: burdens on participating attorneys. Whether or not an attor· ney has a duty to offer separate, interest-bearing accou nts lo "For several reasons,participa tion in these programsdiffe rs clients whose trust depo.si!s are neither nominal nor short significantlyfrom the lawyer'su se of interestearned on clients' te1m is no! modified by an IOLTA program. A participating fundslo defrayt he lawyer'sown operatingexpenses, a prac· attorney would continue to place small or short-term deposits lice which,as noted above, is prohibitedby the modelcode unlessthe client consents after fulldisclosure. into a single unsegregated accou nt. The only change caused by participation in an lOLTA program is that these unsegre· First, retentionby a lawyerof interest earned on clients' funds gated acco unts would now bear interest but this should not inevitably placest he lawyer's own financialin ter~stsin conffict 1 with those of the client.The lawyerw ho retains the interest change how an attorney or law firm current ly handles client has an incentiveto delaydisbursement of the funds. That is trus t deposits because any interest automatically would be whyclient co nsent after fulldisc losureis a prerequisiteto such forwarded to the organization administrating the IOLTA lawyeract ivity. In contrast, a state-authori,.edprogram, by program. requiringpayment of the interest to tax-exempto rganizations not selected by the lawyer,poses no conmct between !he Q. Whal would be the tax co nsequences of participat· financial interest of the clientand that of the lawyer. ing in an IOL TA program? Second, the state-authorizedprograms are subject1 0 public scrutiny a1ld accountability.Pree.Se standards for use of in A. There would be none to the client or the attorney. Ir the terest earnedon lawyertrus t accountsare set by state legisla program was designed in the same fashion as those in other tures and state supreme courts. As circun,stances may w2r jurisdictions, the organization which receives interest from rant, the programsmay be altered bylaw . Any directuse by a the participating trust accounts would beexempl from federal lawyerof interest on clients' funds, on the other hand. would be virtuallyunsupervised and, in moststa tes, subjectto public income tax. The Internal Revenue Service issued Revenue reviewonly on complaint of a client. Ruling 81-209(26 CFR 1.61· 7) stating that the interest earned Third, lawyer participation in these progranls involves no on client's nominal and short-term advances which are depos• commingling of fundsbelong ing to the client and the lawyer. ited in an attorney's trust accou nt and paid over to a bar Sinceall the interestis payableto the charitable organization, foundation, pursuant to a program established by the state interest earned on the account is l'\Ot even arguably the law· supreme court, is not includible in the gross income of the yer's property. In contrast, the !av.rye.r'spersonal r etention of client. In this ruling.it is noted no client may individuallyelect interest on cl·ient trust ful"lds 1.VOuldlead inevitablyto some commingling,cou ld lead to disputesbe tween the lawyerand whether to participate in the program, and if an attorney client, and mightsubject the account to claimsmade by the elects to participate the attorney must do so with respect to lawyer'scred itors. nominal and short-tenn advances of allclients . The ruling also Tiu: Alaban1alawyc rr 269 noted the program would bar clients from receivm91he bene mandatory program. This decision was reversed by the Cab· fit or any interest earned on the commingled deposits, Md, fornia Court of Appeals, Fourth Appellate Division, De because or thl!lr fiduciary responsibilities it is illeg.,llor a1tor cember 19, 1984,which held that the legisl.lture had actually neys to receive any benefit from !he interest earned on the created a mandatory program. The appellate court alsocon • commingled funds The ruling concluded that under the laclS sidered challengesto thecoT1Sbtuuonali1yofthe Statute which clest:nbedabove the interest earned on nominal and short· created the California program. Tow! challenges alleged the term advanceb and paid to !he bar IOWldaoonpursU,lllt 10 a California program cOT1St1tuteda taking of property which is program established by the st.>tesupreme court IS not to be prohibited by the Fifth Amendment . The court stated in part: included 1nthe gross ,ncome of the client. Here, respondentsapparenlly'°ntcnd they are entiUedto the Q. Howdoosan IOLTA program affect financial institutions? monetary value of the ,ntereMgcnlCO$lS exceedor l.'(ludl the 101al inter· program ,s designed so 1hat the organization admin1Stenng est incomegenerated. the cbentssuJler noloss for which they the lOLTA program and distributing the funds willabsorb any are entitled for '°mpensa11on. The abs1roc:1ngh1 10 control fin.,ncialms1itut10T1S's special charges for its involvement m where interest earned on a person', money may be funooed, is Mt an economicloss subJe,ctto mon<'tarycompensation. the program, so the interest payments are net of such charges. The interest remitted to the lOLTA organizaoon should state 1helawyer or law firm in whose name the money On May 2, the CaliforniaSupreme coun issued a 6-1 ruling was sent and the rate of interest applicable to the l)i)yment which derued without comment a petition to review the lov.oer With each rernutance the participating lawyer or law firm ,s coun's ruling upholding the Callfom,a program. One ol the provided with information such as the amount paid to the parties in this case has.stated there will be an appeal to the IOLTA organization, the applicable 1meres1and the average United States Supreme Court. II the Corro l case is appealed, account balance during the time period for which the report ,s it willbe the second casepresenting the issue ollOL TA to the rm,de. Tho financialinstitution also provides the participating U.S. Supreme Court. In lowo, on March 14, five attorneys attorney with a duplicate of the IRS form 1099tha t is sent to appealed to the U.S. Supreme Court, Ronwin v. Supreme the IOLTA organization. Court of Iowa, alleging the low<>program violates the Fifth Amendment's "taking" clause. The attorney general of Iowa opposes the granting of cert,omrl in thb case. Q. Would all types of law firms and trust deposi1s be The Florida case was filed ,n federal district court and eligible for participation in an IOLTA program? alleged that an elderly chentwas clemedinterest of anamount under by an attorney pamcipa11ngm the Florida IOLTA A. When 1he IOLTA program was established ,n Florida,a S5 program. The U.S. District Court, ,n Glaeser er ol u. Florido ruling of the generalcounsel of the Federal Rese,w System Bor et al, denied injunctiverelic! 10 en)Ointhe distnbution of was obtained authorizing the use of Negotiable Order of funds by the Florida IOLTA Program. Presently, this case Withdrowal (NOW) accounts in cortnection with the IOLTA continues under appeal to the 11th Circuit Court of Appea~ program. Thus,NOW accounts may be utilizedby any partic ipating law firm, sole practitioner, partnership or professional however, the court of appeals and U.S. Supreme Court Jus tice Powell have denied emerger1cystays of the district court's assocl.. t ion and all deposits held in trust for Individuals,part· decision which upheld the IOLTA program. nerships, not-for·profit corporatio ns, for-profit corpordtions and others may be so utilized. This ruling was predicated on a (l(Jntiuuivf1111 f"tj.'<' 2419 ) Florida Attorney General opinion letter wh,ch concluded the Florida Bar Foundation, which distributes the IOLTA funds Sltmley ll'eiss11um,ussisUm/ dil'l't'tor mid t11skf,Jrce Cl!tJ 1·di- lo law,related public imerest programs, holds the "beneficial 11ator with lite Alt1/>amoC1m.wrli11m of U!gol Servit'i'SPro grams, is a gradualcof Noo.,rul'il1 ·11itorrsily. Illinois I,,s/i, interest" m the interest monies derived from trust accounts or /11/t o/Tech11ologyam/ Ct,piu,/ l l11i1•1•rsily. H,• is a memf>t.,raf lawyersand law firms participating in the program //re ,llobama a11tfOlriu burs . Q. What is the sta tus of the judicial challe nges to It's A Boy! lOL TA programs in other jurisdictions? CongratulationstoMr.andMrs. Stephen Dubberiey A. Lawsuits have been filed against the Florida and Califomia on the birth of a son, Sellers Lacey, August 26, programs allegingthat clientshave been deprived of property 1985. The baby weighed six pounds, 12~ ounces (intere&t)by state action through the implementation of the and was 19!k inches long. IOLTA programs . Initially, in the California ciise of Carrolv . The mother Is the managing editor orTh e Ala State Bar of California,the San Diego Superior Court held bama Lawy er. the slate legislature had established a voluntary rather than a 270 &pJr,11itc- ll1rml1111ham RobmWt,·th i.... Jr. - 8um1ngham Robort0. Mc1111on.,,-.Jr - Centre Gr