MARCH 2009 • VOL. 70, NO. 2
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Spring2C09 Calendar ------...... LiveSeminars Teleseminars MARCH rvtAROH 27 T~ SkiHs Seminar Bitmfl1Jllam 17 Raising BusinessC.,ftal Part 1 18 IRtdsing BUsfnessC8pfta1 Pait 2 APRIL 20 rncanuve,in..sta a 0cmtts1c Ae1ab118Pradbl ~ 24 Real Estate Defaulls.~ & Bankruptcy 17 OsposHionB 8irmingham 26 Torts in1Emptoymem Litigation 24 Artlcfe 9 Update Bm1lnaham 31 ~cf PartnemliipJU£lnhnsts MAY APRIL e..eCttyJCounty ,Government Law 2 Handing lndividlllidOtlapter 11 Cases ~81Jac11 7 Engish,,,(Hyl. ~ rOriginin the~ 14 RealEstate DeaJ's.With Ultle or No Leverage 21 Estatel?ilannl~ for AetlrementBenefit& 28 BtJvlng& .Selling FamilyIBuslnessea Pan 11
29 !Buying &.Selling FamilyB1l1S1nesses 1 Part 2
lf'H E UN IYIERSITY Of ALABAMA SCH OOIL OF' lA ,W On the Cover
MARCH 2009 • VOL. 70, NO. 2
Sarah Mary Taylor, American, 1916-2000 Hands Quilt, 1988 Cotton/polyester blend Montgomery Museum of Fine Arts Montgomery, Alabama Gift of Kempf Hogan 2004.20.5
Departments In This Issue 87 President’s Page Gathering Clouds and Raging Storms
91 Executive Director’s Report 2008: A Busy Year for the Alabama State Bar 103 ASB Volunteer Lawyers Program 2008 Pro Bono Honor Roll 93 Memorials
97 Important Notices 112 Book Review: Jim Crow and Me, Judicial Award of Merit Local Bar Award of Stories from my life as a civil rights lawyer Achievement Notice of Election By Solomon S. Seay, Jr. Reviewed by Bobby Segall 99 Bar Briefs
114 The Role of Amicus Briefs 101 Young Lawyers’ Section By Ed R. Haden and Kelly Fitzgerald Pate Spring Brings More than Flowers and Showers
120 Removal under Lowery v. Alabama Power Co. 141 Opinions of the By J. Brannon Maner General Counsel Confidential/Sealed Settlements
130 The Agency Argument–What ERISA Plaintiffs and 145 Legislative Defendents Need to Know Wrap-Up By Thomas O. Sinclair and Jenifer Champ Wallis 149 Disciplinary Notices 139 AOC Now Charges AlaCourt Subscribers Per-Page Fee 153 About Members, Among Firms
The Alabama Lawyer 85 ALABAMA STATE BAR Robert A. Huffaker, Montgomery...... Chair and Editor Linda G. Flippo, Birmingham ...... Vice-Chair and Associate Editor 415 Dexter Avenue Brad Carr, Montgomery...... Staff Liaison and Montgomery, AL 36104 Director of Communications Margaret L. Murphy, Montgomery...... Staff Liaison and (334) 269-1515 • (800) 354-6154 Publications Director FAX (334) 261-6310 Marcia N. Daniel...... Communications & Publications Assistant E-mail: [email protected] Web site: www.alabar.org Board of Editors Daniel J. Britt, Millbrook • Russell C. Buffkin, Mobile • Greg C. Cook, Birmingham ALABAMA STATE BAR STAFF • Katharine A.W. Coxwell, Monroeville • John G. Dana, Birmingham • J. Mark Debro, Huntsville • N. Christian Glenos, Birmingham • C. Paige Goldman, Executive Director ...... Keith B. Norman Birmingham • Wilson F. Green, Tuscaloosa • F.M. Haston, III, Birmingham • Executive Assistant ...... Diane Locke Frederick G. Helmsing, Jr., Mobile • Erik S. Heninger, Birmingham • Anne. S. Network Administrator...... Wayne Hughes Hornsby, Tuscaloosa • James F. Hughey, III, Birmingham • B. Keith Jackson, Birmingham • Emily C. Marks, Montgomery • Timothy B. McCool, Carrollton • Reta Computer Programmers...... Dolan L. Trout A. McKannan, Huntsville • Derek F. Meek, Birmingham • William J. Moore, Jr., Larry Pratt Enterprise • George R. Parker, Montgomery • Gabrielle E. Reeves, Mobile • Robert W. Rieder, Jr., Huntsville • Romaine S. Scott, III, Birmingham • Michael A. Shaw, Scanning Operator ...... Kristi Neal Daphne • Christopher N. Smith, Montgomery • Chad E. Stewart, Enterprise • Web Administrator...... Willie Murphy Aldos L. Vance, Birmingham • Mark T. Waggoner, Birmingham • John R. Wallis, Assistant Executive Director ...... Edward M. Patterson Birmingham • Tari D. Williams, Tuscaloosa Administrative Assistants ...... Rita Gray Officers Marie Updike J. Mark White, Birmingham...... President Director of Regulatory Programs...... Angela Parks Thomas J. Methvin, Montgomery ...... President-elect CLE Samuel N. Crosby, Daphne...... Immediate Past President CLE Administrative Assistant...... Carol Thornton Pamela H. Bucy, Tuscaloosa...... Vice President Regulatory Programs/PHV Assistant ..Cathy Sue McCurry Keith B. Norman, Montgomery ...... Secretary COURSE Director of Communications ...... Brad Carr James M. Terrell, Birmingham...... Young Lawyers’ Section President Publications Director...... Margaret L. Murphy Board of Commissioners Communications and Publications 1st Circuit, Ronnie E. Keahey, Grove Hill • 2nd Circuit, Michael E. Jones, Luverne • SEARCH Assistant...... Marcia N. Daniel 3rd Circuit, Christina D. Crow, Union Springs • 4th Circuit, J. Garrison Thompson, Membership Services Director...... Mary Corbitt Selma • 5th Circuit, Randall S. Haynes, Alexander City • 6th Circuit, Place No. 1, R. Cooper Shattuck, Tuscaloosa • Place No. 2, Alyce M. Spruell, Tuscaloosa • 7th Membership Administrative Assistant ...... Emily Farrior Circuit, John M. Gruenewald, Anniston • 8th Circuit, Phil D. Mitchell, Decatur • 9th The Alabama Mandatory CLE Commission Director of Admissions ...... Dorothy D. Johnson Circuit, W. N. Watson, Fort Payne • 10th Circuit, Place No. 1, Anthony A. Joseph, Admissions Administrative Assistants ...... Heidi Alves Birmingham • Place No. 2, S. Greg Burge, Birmingham • Place No. 3, George M. Neal, Jr., Birmingham • Place No. 4, Phillip W. McCallum, Birmingham • Place No. continually evaluates and approves in-state, Sonia Douglas 5, Gregory H. Hawley, Birmingham • Place No. 6, Maibeth J. Porter, Birmingham • Bookkeeper...... Gale Skinner Place No. 7, Joseph A. Fawal, Birmingham • Place No. 8, Robert E. Moorer, Birmingham • Place No. 9, James R. Pratt, III, Birmingham • Bessemer Cutoff, ASB Foundation Assistant...... Ann Rittenour as well as nationwide, programs which are William A. Short, Jr., Bessemer • 11th Circuit, Albert J. Trousdale II, Florence • Graphic Arts Director ...... Maggie Stuller 12th Circuit, Richard W. Whittaker, Enterprise • 13th Circuit, Place No. 1, Henry A. Graphic Arts Assistant...... Roderick Palmer Callaway III, Mobile • Place No. 2, William M. Cunningham, Mobile • Place No. 3, maintained in a computer database. All are Receptionist ...... Stephanie Oglesby Billy C. Bedsole, Mobile • Place No. 4, Juan Ortega, Mobile • Place No. 5, Mary Margaret Bailey, Mobile • 14th Circuit, James R. Beaird, Jasper • 15th Circuit, Director of Service Programs...... Laura A. Calloway Place No. 1, Les Hayes III, Montgomery • Place No. 2, James H. Anderson, identified by sponsor, location, date and SP Administrative Assistant...... Kristi Skipper Montgomery • Place No. 3, Donald R. Jones, Jr., Montgomery • Place No. 4, J. Volunteer Lawyers Program Director...... Linda Lund Cole Portis, Montgomery • Place No. 5, Sim Penton, Montgomery • Place No. 6, Lee H. Copeland, Montgomery • 16th Circuit, F. Michael Haney, Gadsden • 17th VLP Assistant ...... Katherine L. Church specialty area. For a listing of current CLE Circuit, K. Scott Stapp, Demopolis • 18th Circuit, Ramona Morrison, Columbiana • Intake Specialist ...... Deborah Dickey 19th Circuit, Brian D. Mann, Wetumpka • 20th Circuit, Joseph A. Morris, Dothan • Lawyer Referral Secretary ...... Renee Avery 21st Circuit, John L. Jernigan, III, Brewton • 22nd Circuit, John M. Peek, Andalusia opportunities, visit the ASB Web site, Alabama Lawyer Assistance Program • 23rd Circuit, Place No. 1, Harold Stephens, Huntsville • Place No. 2, L. Thomas Ryan, Jr., Huntsville • Place No. 3, Richard J.R. Raleigh, Jr., Huntsville • 24th Director ...... Jeanne Marie Leslie (834-7576) Circuit, Ronald H. Strawbridge, Jr., Vernon • 25th Circuit, R. Wyatt Howell, www.alabar.org/cle. ALAP Administrative Assistant ...... Sandra Clements Hamilton • 26th Circuit, Kenneth E. White, III, Phenix City • 27th Circuit, John C. ALAP Case Manager...... Shannon Knight Gullahorn, Albertville • 28th Circuit, Place No. 1, Allan R. Chason, Bay Minette • Place No. 2, Marion E. Wynne, Jr., Fairhope • 29th Circuit, Robert Lee Rumsey, Alabama Law Foundation, Inc. Director...... Tracy Daniel Sylacauga • 30th Circuit, Elizabeth S. Parsons, Pell City • 31st Circuit, John M. ALF Administrative Assistants ...... Crystal Jones Kennemer, Tuscumbia • 32nd Circuit, Jason P. Knight, Cullman • 33rd Circuit, Henry Sharon McGuire F. Lee, III, Geneva • 34th Circuit, Eddie Beason, Russellville • 35th Circuit, J. Milton Alabama Center for Dispute Resolution Coxwell, Jr., Monroeville • 36th Circuit, Christopher E. Malcom, Moulton • 37th Circuit, Robert T. Meadows, III, Opelika • 38th Circuit, Gerald R. Paulk, Scottsboro • Director ...... Judith M. Keegan (269-0409) 39th Circuit, Jere C. Trent, Athens • 40th Circuit, David F. Law, Rockford • 41st ADR Assistant ...... Patsy Shropshire Circuit, Alexander M. Smith, Oneonta
ALABAMA STATE BAR CENTER FOR At-Large Board Members PROFESSIONAL RESPONSIBILITY STAFF Place No. 1, Walter E. McGowan, Tuskegee • Place No. 2, Claude E. Hundley, III, General Counsel ...... J. Anthony McLain Huntsville • Place No. 3, Deborah Byrd Walker, Birmingham • Place No. 4, Secretary to General Counsel...... Vivian Freeman Merceria Ludgood, Mobile • Place No. 5, Alicia F. Bennett, Chelsea • Place No. 6, LaBarron N. Boone, Montgomery • Place No. 7, Pamela H. Bucy, Tuscaloosa • Place Assistant General Counsel ...... Robert E. Lusk, Jr. No. 8, Kesa Johnston, Roanoke • Place No. 9, Kelly T. Lee, Elmore Assistant General Counsel ...... Samuel S. Partridge The Alabama Lawyer (USPS 743-090) is published six times a year by the Assistant General Counsel ...... Jeremy W. McIntire Alabama State Bar, 415 Dexter Avenue, Montgomery, Alabama 36104. Complaints Intake Coordinator...... Kim Ellis Periodicals postage paid at Montgomery, Alabama, and additional mailing offices. POSTMASTER: Send address changes to The Alabama Lawyer, P.O.Box Disciplinary Clerk ...... Bonnie Mainor 4156, Montgomery, AL 36103-4156. Paralegals/Investigators...... Cheryl L. Rankin The Alabama Lawyer is the official publication of the Alabama State Bar. Views and conclu- Carol M. Wright sions expressed in articles herein are those of the authors, not necessarily those of the board Client Security Fund Coordinator ...... Laurie Blazer of editors, officers or board of commissioners of the Alabama State Bar. Subscriptions: Alabama State Bar members receive The Alabama Lawyer as part of their annual dues pay- Receptionist ...... Sherry Langley ment; $15 of this goes toward subscriptions for The Alabama Lawyer. Advertising rates will be furnished upon request. Advertising copy is carefully reviewed and must receive approval from the Office of General Counsel, but publication herein does not necessarily imply endorse- www.alabar.org/cle ment of any product or service offered. The Alabama Lawyer reserves the right to reject any advertisement. Copyright 2009. The Alabama State Bar. All rights reserved. The Alabama Lawyer The Alabama Lawyer GRAPHIC DESIGN PRINTING 86 March 2009 President’s Page 87 Mark White The Alabama Lawyer heart. message is not “gathering face lost confidence in their gov- the message of their oratory that had already prepared my are the segment of society most benediction and President Barack benediction and President in the Alabama State Bar so moved by was I as lawyers must accept our share of the responsibili- must as lawyers instilling and cultivating that conviction in our citizens. that conviction instilling and cultivating whole, we Lowery’s Joseph deeply and passionately held conviction that law deeply and passionately held conviction a we and judges, lawyers are all too well familiar with the “seeds of greed” and corrup- familiar are all too well this, we earlier efforts in order to speak–with their help–from my earlier efforts mentality of law-breaking can mentality soil. This of law-breaking flourished in our native
heard Rev.
this column. However, In Alabama, we I Before a the nation as Like scrapped my inaugural address on January 20, I Obama’s for I
and Raging Storms Clouds Gathering tion that have only be stopped by ernment and, for ty. have Americans seem to clouds and raging storms.” an instrument of secular policy, but is also part of the ultimate purpose and but is also part of of secular policy, only an instrument As meaning of life. directly responsible for President’s Page Continued from page 87
In becoming lawyers, we all swore to support the con- This new year brings with it the possibility of change stitutions of the State of Alabama and of the United and a renewed hope for the future of our country and our States. By entering this noble profession, we joined the state. Let us not neglect this opportunity to participate in “movers and shakers” of our society. As lawyers, we are the challenge of transformation and redemption that leaders. Just by being members of the bar, we walk President Obama has offered. Let us all join together to among the privileged and educated. Yet, with privilege recognize the hardships we face as a state and a nation. comes responsibility. To paraphrase one of the first schol- Let us all together kneel and ask for guidance and help ars of legal ethics, George Sharswood, “No person can from above to meet and overcome those obstacles. ever be a truly great lawyer, who is not in every sense of As president of the ASB, I feel I have both a personal the word, a good person.” and professional obligation to do everything I can to As lawyers, we have chosen the path of action. It is enhance and improve our system of justice in Alabama. not “the path for the faint-hearted—for those who prefer There is much work to be done. We must make civil legal leisure over work, or seek only the pleasures of riches services available to the poor, upgrade our system of and fame.” We must honor and uphold the ideals of indigent criminal defense and ensure that Alabamians are those who have gone before us and walk in the foot- served by the best judges possible seated by the fairest steps of all the men and women who have made means possible. For these efforts, I make no apology. America great. We cannot allow the mad scramble for More so than ever before, I am proud to be an material success and the pressures of day-to-day exis- American and a citizen of Alabama. Despite its shortcom- tence push aside the ideal and goal of working toward a ings, America’s legal and judicial system is the envy of better system of justice for all. We must preserve the the world, and for that I am most grateful. As your bar legacy found in the principles of the documents that president, I have recently traveled to many other states form the basis of our Union. We must not forget that as and met with lawyers and judges from even more states. lawyers, we are the keepers of that legacy. We must All this has convinced me that we have some of the very keep the candle of freedom burning brightly. best lawyers and judges anywhere right here in Alabama. Inauguration Day coincided with our state’s investiture I recognize my debt for the liberal use of the words of ceremony. As he commissioned five of our appellate President Obama and Rev. Lowery, but I don’t think any judges, Governor Riley recognized that they “got here apology is necessary. I suspect they want their message through a political process, but when you put on that spread far and wide. “Let all those who do justice and robe, politics are left behind.” We must strive for the day love mercy say Amen. Say Amen. And, Amen.” when judges are elected on their individual merits and not NOTE: As typical of any “President's Page” that has on party politics. We must chose “hope over fear, unity of appeared this year, this product starts with some ram- purpose over conflict and discord.” We must “proclaim an bling, incomprehensible offering by me which then is end to the petty grievances and false promises, the subjected to the wisdom and talent of Kitty Brown and recriminations and worn-out dogmas, that for far too long Bill Bowen. Anything relevant and coherent that results is have strangled our politics,” as well as our judicial system. thanks to them and I am in their debt. ▲▼▲
88 March 2009 ALABAMA STATE BAR 2009-2010 COMMITTEE PREFERENCE FORM
ALABAMA STATE BAR MISSION STATEMENT THE ALABAMA STATE BAR IS DEDICATED TO PROMOTING THE PROFESSIONAL RESPONSIBILITY AND COMPETENCE OF ITS MEMBERS, IMPROVING THE ADMINISTRATION OF JUSTICE, AND INCREASING THE PUBLIC UNDERSTANDING OF AND RESPECT FOR THE LAW.
INVITATION FOR SERVICE FROM THOMAS J. METHVIN PRESIDENT-ELECT We want very much in the upcoming year to broaden participation in bar activities. If you would like to serve our profession in a volunteer capacity, please choose a committee in which you are interested. The Alabama State Bar needs you and will try hard to involve you in an area of your interest.
APPOINTMENT REQUEST - Terms begin August 1, 2009 and expire July 2010. Indicate your top two preferences from the list by marking 1 or 2 beside the preferred committee (c).
___ Alabama Lawyer, Editorial Board (c) ___ Insurance Programs (c) ___ Alabama Lawyer, Bar Directory (c) ___ Law Day (c) ___ Alternative Methods of Dispute Resolution (c) ___ Lawyer Referral (c) ___ Character & Fitness (c) ___ Lawyer Assistance Program (c) ___ Client Security Fund (c) ___ Military Law (c) ___ Disciplinary Rules & Enforcement (c) ___ Pro Se Forms (c) ___ Diversity in the Profession (c) ___ Quality of Life (c) ___ Fee Dispute Resolution (c) ___ Spanish Speaking Lawyers (c) ___ Judicial Liaison (c) ___ Unauthorized Practice of Law (c) ___ History & Archives (c) ___ Volunteer Lawyers Programs (c) ___ Wills for Heroes (c) BACKGROUND INFORMATION Name: ______Firm: ______Address: ______(Street or P. O . Box) ______(City, State, Zip) Phone: (office)______(e-mail)______(fax)______Year of admission to bar: ______■ check if new address
Note: A complete description of the work of each committee can be found at www.alabar/members.
INSTRUCTIONS FOR SUBMISSION Please return this form no later than May 4, 2009 to be considered for an appointment, by mail to Programs, P. O . Box 671, Montgomery, AL 36101-0671; by facsimile to 334-261-6310; or by email to [email protected]. Please remember that vacancies on existing committees are extremely limited as most committee appointments are filled on a three-year rotation basis. If you are appointed to a committee, you will receive an appointment letter informing you in Aug. 2009.You may also download this form from our Web site, www.alabar/members, and submit the completed form via email to [email protected].
The Alabama Lawyer 89
Executive Director’s Report 91 Norman Keith B. The Alabama Lawyer the prepared. was members of the Board Richardson. Archibald Heflin, John new 12 conducted and 30 attorneys completed conducted and 30 attorneys separate ethics training sessions were planned and held at the Hilton Sandestin conducted for President’s and Leaders’ Manual had many significant accomplishments in 2008. had many continued. rolled out to further enhance this valuable, free rolled out to further enhance this valuable, and General Counsel staff. bar members. 2, was ASB poster and essay contest resulted in the entry poster and essay of 323 posters road shows and 102 road shows Annual Meeting was th essays with 27 schools from across the state participating. with 27 schools essays Commissioners. T. held celebrating the induction of Howell 129 Law Day Lawyers Hall of Fame induction ceremony and luncheon induction ceremony Hall of Fame Alabama Lawyers fifth practice of hosting a breakfast during the legislative session for during the legislative practice of hosting a breakfast sixth edition of the was Forum Leadership fourth Alabama State Bar and 117 The of Bar The tool for research all sessions. The was W. and Patrick Goode Jones Campbell, Thomas conducted by Twenty-two with more than 1,200 people attending. The was lawyer-legislators The The The 6. 5. 4. An orientation session was 2. 3. v. CaseMaker, 9. 7. 8. Alabama State Bar the Alabama State A Busy Year for 2008: A Busy Year and due to the leadership of statepresidents Sam Crosby bar were These The staff. and the bar of numerous volunteers as the work Mark White as well including updates and reflects some of those accomplishments, list below traditional regulatory other than the bar’s facilities, to the bar’s improvements and licensing operations. 1. Executive Director’s Report Continued from page 91
10. The build-out of the third floor of the bar building and 20. New online annual meeting registration system was refurbishment of the second and first floors were rolled out.
completed. 2 1. Member I-Profile was developed and implemented 11. The “Wills for Heroes” program was successfully online to allow members to select preferred method rolled out statewide with clinics in Tuscaloosa, of receiving communications from the bar.
Montgomery, Dothan, Auburn, Mobile, Huntsville, 22. New policies for broadcast e-mails and e-mail list Birmingham, Baldwin County, and Decatur. Almost were implemented. 1,100 first-responders received free wills, durable 23. An in-house intake center for the Volunteer Lawyers powers of attorney and health care directives. Program was started with a grant from the Alabama 12. An instructional CD for young lawyers was devel- Law Foundation. oped featuring interviews of former state bar presi- 24. A presidential initiative, “Lawyers Serving dents sharing their practice experiences. Communities,” highlighting lawyers’ community 13. The first full year of The Complete Lawyer, an “e- service through newspaper articles, was completed. zine” providing useful practice and lifestyle informa- 25. A full-time scanning station was set up to continue tion to bar members at no cost, was completed. the scanning of files and documents for the bar’s 14. Disseminated a short video to members and new document management system. admittees about benefits available to ASB members. 26. WiFi network was installed in the bar building. 15. Implemented a $200 PHV fee increase with 2 7. A new proxy firewall, storage area network and other increased funds going to the Alabama Law server upgrades were completed in addition to a com- Foundation for civil access to justice for indigent plete upgrade of all staff computer work stations. Alabama citizens. 28. The Professionalism Pledge and Honor Roll were 16. First-ever Board of Bar Commissioners’ meeting was made accessible online. held at the University of Alabama School of Law. 29. The redesigned Web site, www.alabar.org, with new 1 7. First Professionalism Consortium was planned and functionality and security features for personal log-in conducted. was launched. 18. Three thousand nineteen, or almost one in five, 30. A mortgage foreclosure assistance program in coop- members purchased licenses or special member- eration with Legal Services Alabama was initiated. ships online. This long list of accomplishments, along with the bar’s day-to-day licensing and regulatory activities, would be impossible to achieve without excellent leaders, dedicated volunteers and a helpful staff. This list reveals that the work of the state bar is varied, but with one underlying theme–service. Three months into a new year–2009–we hope to sustain the level of service that has characterized the bar and its members for so many years. With the cur- rent economic conditions confronting our nation, state and local communities, the volunteer work and service the legal profession renders will be even more important to those we serve. ▲▼▲
92 March 2009 Memorials 93 Stokes, III Franklin Benjamin Taylor Peach George Brevard Hand William Brevard The Alabama Lawyer school at school Association and core in June 1949 with 1949 in June Methodist Church and Methodist Church many years as a mem- years many awarded the Bronze Star. the Bronze awarded District Court, Southern appointed to the federal bench appointed to the federal Bar the Federal Association, recognized as an honorary recognized mem- Denby Hand, in April Allison Denby his wife, many years. His years of service His years years. to the many the judges, the Clerk’s Office and the Office the judges, the Clerk’s –Ian Gaston, president, Mobile Bar his devotion to the rule of law to the rule his devotion his bravery he was the Southern District of the Mobile Bar which he was which service where he defended in Northern Europe his children, Jane Hand Dukes of Mobile, Virginia Hand Dukes Jane his children, and for preceded in death by a lifetime member of Dauphin Way a lifetime a native of Mobile and attended a native capacities for by interrupted the Rotary Club as a Paul Harris Fellow and the Mobile Bar the Rotary Fellow Harris Club as a Paul in 1988 and with in 1988 Award Freedom II Religious Paul, the John awarded Brevard Hand, senior judge of the Hand, Honorable William Brevard President Richard Nixon in 1971. Nixon Richard President Hand wasJudge Hand wasJudge Hand served as chief judge of the U.S. Hand servedJudge as chief Hand wasJudge The lawthe University of Alabama. He entered the practice of He wasthe firm of Hand, Arendall & Bedsole. principles, but to establishing a standardConstitutional of leadership and colle- for the benchmarks giality that were He served Services for and Pretrial Probation offices. ber of the Alabama State Bar, and well-deserved honors, and the Inns of Court. Among his many Association he was was He an honorary degree from Mobile College in 1990. “Doctor of Laws” named by honored him with the Liberty Award. Association Bell 2008. He is survived by of Mobile, and seven and Allison Hand Peebles Hand Hollis of Germantown and three great-grandchildren. grandchildren he completed law additional service Occupation Army, with the After by served in all lay country as a combat infantry rifleman from the period of the Battle of the his country as a combat infantry rifleman from the period of the Battle Bulge through VE Day, of the church. steward board and a lifetime ber of the administrative when he became a senior judge. He to 1989, District of Alabama, from 1981 continued to carry a full caseload for not just by marked court were United States District Court for Alabama, died in Mobile September 6, 2008 at the age of 84. Brevard Hand William Brevard University of Alabama. His and the High School Murphy education was Memorials Continued from page 93
Benjamin Franklin George Peach Stokes, III Taylor Benjamin Franklin Stokes, III, a mem- The very definition of service to oth- ber of the Mobile Bar Association, died ers, our father, George Peach Taylor, July 11, 2008 in Mobile. died December 10, 2008 in Tuscaloosa Ben Stokes was born in Mobile but at the age of 83. His wife of 59 years, raised in Brewton, where he graduated from T.R. Miller High Mary Leta Taylor, predeceased him by three months. He is School. He received his bachelor’s degree from Birmingham survived by the authors—his four children—and seven Southern College and his law degree from the University of grandchildren. Alabama. He entered the United States Army in 1955 as a JAG Our father served our country’s military in the Navy, officer and served in that capacity until being discharged in 1958, including the V-12 program at Howard College; Scouts and at which time he began a career of over 50 years in the prac- Raiders, Ft. Pierce, Florida (the precursor to the Navy tice of law in Mobile. He continued to practice until June 2008. Seals); Advanced Naval Intelligence School, New York City; Ben Stokes was elected to the Alabama House of and Operations Officer, Philippine Sea Frontier, Manila. Representatives as a Democrat in 1970 and served one He entered Birmingham Southern College on a Phi Beta term. All his life he was very proud of his membership in Kappa scholarship, won numerous athletic and academic the Democratic Party. awards there and graduated in 1948 with both AB and BS As a member of the house, he never failed to take a degrees. He completed his legal education at the clear stand on issues. At one time, the most powerful University of Alabama School of Law, earning his LLB member of the house was presenting a bill which author- degree in 1951 with honors. ized payment of state funds to a private educational institu- He was the very first law clerk to the Alabama Supreme tion, an issue with which Mr. Stokes strenuously disagreed. Court, serving for Chief Justice J. Ed Livingston from 1951- In spite of his most determined arguments, the bill passed 1952. In 1952 he joined the Birmingham law firm that but Ben Stokes never regretted taking a clear and strong became known as Dominick, Fletcher, Taylor & Yeilding. He position on issues of principle. was active in legal, political, civic, social, and religious He also was particularly quick on his feet in the courtroom. work. He served as president of the Young Men’s Business While testifying for a fellow lawyer regarding that plaintiff Club, and chairman of the Homewood YMCA. He was a lawyer’s fee, the out-of-town attorney representing the plaintiff and co-counsel in Reynolds v. Sims, 3 74 U.S. 802 defendant on cross-examination posed the following ques- (1963), landmark reapportionment litigation that helped tion to Mr. Stokes: Mr. Stokes, what is your rating in established the principle “one man-one vote.” He was pres- Martindale-Hubbell?” In a microsecond, Ben Stokes shot ident of both the Birmingham and Alabama Young Lawyers’ back with, “I don’t know what my rating is in Martindale- sections, and was an ASB Bar Commissioner. Hubbell, but I got a triple A rating at the bank.” The response Inspired by John and Robert Kennedy, he left a comfort- drew an audible chuckle from the judge and the rest of the able lifestyle and law partnership in 1965 as he, our mother courtroom. The cross-examination terminated instantly. and the four of us (age six to 12) joined the Peace Corps. Mr. Stokes is survived by his wife, Alice Boles Stokes of For over five years he served as director of the Peace Mobile; his children, Elizabeth Terr y, Charlotte Eslava, Corps in two different countries, Sierra Leone, Africa and Jennifer Glover and Benjamin Franklin Stokes, I V, all of Guyana, South America, with a stint as chief of the West Mobile; Suzanne Chenoweth and Jacqueline Pierce, both of Africa Division of the Peace Corps (Washington, D.C.) Birmingham; Steven M. Stokes of Chicago; two step-chil- between the two. dren, Howard O. Bolton of Mobile and Christopher O. Sensing another need for service, he opted not to return Bolton of Chicago; and 14 grandchildren. to his practice in Birmingham after leaving the Peace Ben Stokes was a participant in numerous civic affairs and Corps, but instead went to Mississippi to become chief a longtime and dedicated member of Trinity Episcopal Church. counsel for the Mississippi Office of the Lawyers –Ian Gaston, president, Mobile Bar Association Committee for Civil Rights under Law. In Mississippi he
94 March 2009 handled criminal and civil rights cases including landmark attorney for indigents, appealing convictions to the Fifth cases such as Connor v. Johnson, 402 U.S. 690 (1971), 404 and Eleventh Circuit Court of Appeals, and involved stu- U.S. 549 (1972) (reapportionment); Gates v. Collier, 501 F.2d dents in preparing briefs and attending oral arguments. 1291 (5th Cir. 1974) (Mississippi prison system); Zimmer v. Feeling the itch to get back into the courtroom, he took a McKeithen, 485 F.2d 1297 (5th Cir. 1973) (reapportionment one-year sabbatical from the law school and became an litigation in Louisiana); and numerous county redistricting assistant district attorney for Tuscaloosa County. and jury discrimination cases. He also was co-counsel for In 1989, he retired from the law school after 16 years to plaintiffs in Burton v. Waller, 502 F.2d 1261 (5th Cir. 1974), serve for four years as chief public defender for Tuscaloosa the civil suit for damages arising out of the shootings of County, after which he fully retired. students and by-standers by law enforcement at Jackson In 2001, his years of service to the country and the legal State College in 1970. profession were recognized when he was given the He joined the faculty of the University of Alabama School American Bar Association’s John Minor Wisdom Award for of Law in 1973, served as dean of admissions for many Service to Civil Rights and the Legal Profession. He was years and retired as professor emeritus of law in 1989. He also awarded the Order of the Samaritan by the University renewed and vastly expanded the trial advocacy program, of Alabama School of Law. teaching many current litigators how to try a case. In 1974, Our father was the consummate lawyer, whose service federal Judge Frank Johnson appointed him counsel for an to others, often not popular and often at personal sacrifice, indigent prisoner in the Alabama prison system. After trial, is likely not to be equaled by many. He will be sorely Judge Johnson issued one of the most comprehensive missed by his children and grandchildren, his friends and decrees in the history of prison reform suits, declaring the the many lawyers whom he admitted to the law school, Alabama prison system unconstitutional. The case was con- mentored while there, taught how to try a case in court, solidated with others and reported on appeal as Newman v. and in whose successes after graduation he rejoiced. His Alabama, 559 F.2d 283 (5th Cir. 1977), cert. denied, 438 life serves as an example and, indeed, a challenge, not only U.S. 915 (1978). Judge Johnson also appointed our father to the legal community but to our entire society. to two committees established during litigation over –Dr. George Peach Taylor, Jr., Northrop Grumman Alabama’s mental health institutions, serving as chairman Corporation, Alexandria, Virginia; Ann English Taylor, U.S. of the Committee on Sterilization Review and member of Army Corps of Engineers, Mobile; Jarred O. Taylor II, the Extraordinary Treatment Committee. During his tenure Maynard, Cooper & Gale, PC, Birmingham; and David K. at the law school, he sought and received appointments as Taylor, Bradley Arant Boult Cummings, Nashville
Bates, John Burdette Kendrick, Leonard Rainey, Howard Clay III Stanard, Chandler Kite Birmingham Gilbert Tuscaloosa Spanish Fort Admitted: 1963 Montgomery Admitted: 1969 Admitted: 1971 Died: November 30, 2008 Admitted: 1971 Died: September 9, 2008 Died: November 2, 2008 Died: November 22, 2008 Burkett, Morris Roemer, Albert Lewis Anderson Lipscomb, Hudson Montgomery Montgomery Powell III Admitted: 1938 Admitted: 1941 Bessemer Died: December 2 7, 2008 Died: January 3, 2009 Admitted: 1952 Died: July 1, 2008 Roseberry, Robert Dominick, Frank Clarence McCoy Jr. McCall, Winston Bush Greensboro Birmingham Birmingham Admitted: 1981 Admitted: 1948 Admitted: 1934 Died: April 5, 2008 Died: November 14, 2008 Died: December 12, 2008
The Alabama Lawyer 95
Important ASB Notices 97 of Merit Election of Award Achievement Bar Judicial Award of Notice Local The Alabama Lawyer recipi- is not nec- will receive award be supported with letters of be supported with letters bearing the state of bar seal and the year The established in 1987. a three-member committee appointed by a three-member committee given year. given Commissioners of the Alabama State Bar 16, of Merit through March Award Judicial the state bar’s Commissioners 671 Norman Box of Merit was Award Judicial Board of Bar Board O. P. AL 36101-0671 Montgomery, The The Secretary of BarBoard B. Keith Nominations should include a detailed biographical profile of the nominee Nominations are considered by Award of Merit of Judicial Award nominations for 2009. Nominations should be mailed to: a narrative outlining the significant contribution(s) the nominee has made outlining the significant contribution(s) and a narrative to the administration of justice. Nominations may an annual award. It must be presented to a judge who is not retired, essarily an annual award. court, trial or appellate, who is determined to have whether state or federal contributed significantly to the administration of justice in Alabama. The ent is presented with a crystal gavel presentation. a recommendation to the then makes which the president of the state bar, board of bar commissioners with respect to a nominee or whether the award should be presented in any endorsement. Important ASB Notices Continued from page 97
10th Judicial Circuit, Place No. 2 Local Bar Award of 10th Judicial Circuit, Place No. 5 10th Judicial Circuit, Place No. 8 Achievement 10th Judicial Circuit, Place No. 9 The Alabama State Bar Local Bar Award of Achievement 12th Judicial Circuit recognizes local bar associations for their outstanding con- 13th Judicial Circuit, Place No. 2 tributions to their communities. Awards will be presented 15th Judicial Circuit, Place No. 2 July 18 during the Alabama State Bar’s 2009 Annual 15th Judicial Circuit, Place No. 6 Meeting at the Grand Hotel in Point Clear. 16th Judicial Circuit Local bar associations compete for these awards 20th Judicial Circuit based on their size—large, medium or small. 23rd Judicial Circuit, Place No. 2 The following criteria will be used to judge the contest- 24th Judicial Circuit ants for each category: 27th Judicial Circuit • The degree of participation by the individual bar in 29th Judicial Circuit advancing programs to benefit the community; 38th Judicial Circuit • The quality and extent of the impact of the bar’s par- 39th Judicial Circuit ticipation on the citizens in that community; and Additional commissioners will be elected in these cir- • The degree of enhancements to the bar’s image in cuits for each 300 members of the state bar with principal the community. offices herein. The new commissioner petitions will be To be considered for this award, local bar associations determined by a census on March 1, 2009 and vacancies must complete and submit an award application by June certified by the secretary no later than March 15, 2009. 1, 2009. Applications may be downloaded from the ASB All subsequent terms will be for three years. Web site at www.alabar.org or by contacting Rita Gray at Nominations may be made by petition bearing the sig- (334) 269-1515. natures of five members in good standing with principal offices in the circuit in which the election will be held or by the candidate’s written declaration of candidacy. Either Notice of Election must be received by the secretary no later than 5:00 Notice is given here pursuant to the Alabama State Bar p.m. on the last Friday in April (April 24, 2009). Rules Governing Election and Selection of President-elect Ballots will be prepared and mailed to members and Board of Bar Commissioners. between May 1 and May 15, 2009. Ballots must be Bar commissioners will be elected by those lawyers voted and returned to the Alabama State Bar by 5:00 with their principal offices in the following circuits: p.m. on the last Friday in May (May 29, 2009). Election 2nd Judicial Circuit rules and petitions are available at www.alabar.org. 4th Judicial Circuit
th 6 Judicial Circuit, Place No. 2 At-Large Commissioners 9th Judicial Circuit At-large commissioners will be elected for the follow- 10th Judicial Circuit, Place No. 1 ing place numbers: 1, 4 and 7. ▲▼▲
98 March 2009 Bar Briefs
• Richard P.Carmody, special counsel with Adams & Reese Richard P. Carmody LLP, was recently presented the 2009 L. Burton Barnes, III Public Service Award during the Birmingham Bar Association’s Annual Meeting. The award is given annually to a member of the bar who has given freely of his time and energy in public service for Carmody the benefit and betterment of the general public. Established in 1994 by the Birmingham Bar Association, this award honors the memory of L. Burton Barnes, III, a distinguished member of the BBA and a true champion of public service. ▲▼▲
The Alabama Lawyer 99
Young Lawyers’ Section 101 Terrell M. James The Alabama Lawyer to first arrival and in th . The Association’s taken time Brown Kitty first opportunity is first opportunity youencourage to render service and to is given to the statethe to local or given is been working hard to put to hard working been (Montgomery), Lawyers Render Service is J.R. Gaines (Montgomery)have to volunteer at one of these conferences. these of one at volunteer to conferences introduce high school students to students introduce high school conferences . These th students observe a mock trial and participate as jurors. At trial and participate observe a mock students WardNavan promoting to high school students the various types the various of students promoting to high school also expose the public to lawyers rendering service. rendering the public to lawyers also expose great program again this year. Each year, young lawyers volunteer to volunteer lawyers young year, Each year. this again program great I profession. legal the about questions answer to and State of the Alabama Bar motto who performed the best minoritybest the service performed who wonand Alabama project, high school students and administrators see the impact that attorneys and administrators see the students First, high school Lawyers’ Young that Alabama’s successful so become has program This The Brings More than Brings Spring Flowers and Showers Lawyers’ Section. The Lawyers’ Young in your become more involved the year, This conferences. to assist with our Minorityto volunteer Pre-Law will be held in Montgomery April 15 conferences Minority Pre-Law (Birmingham) and category. bar mid-size the in place a together work- different the from and to students lead to trial, mock the in participate a as experiences their about students groups of small to speak to and shops lawyer Navanor Kitty contactJ.R, for great opportunities you many of spring provides justice system and to the career choices available to them in the legal pro- available choices and to the career our justice system They fession. in their communities. Students observe lawyers who have observe lawyers in their communities. Students make them about our to teach and to design this program from their busy schedules play roles that lawyers the valuable witness Second, students justice system. The in our society. deliberate and administer justice. These students the end of the conference, and our the public about our profession in teaching are invaluable experiences encourage diversity in these conferences of justice. Finally, system nation’s by our profession profession. legal in the careers that are available the American Barfrom of Achievement an Award Section received award 2008. This in August Division Lawyers’ Young YLS Birmingham April 29 Young Lawyers’ Section Continued from page 101
The second opportunity to render service is through http://alabamayls.org/ebooks/2008_FEMA_Disaster_ the Young Lawyers’ FEMA Disaster Relief Program. This Manual.pdf, is a primer on landlord-tenant disputes, program assists FEMA in securing pro bono legal servic- insurance law and other common issues that typically es during times of natural disasters in our state. In the arise in the wake of a natural disaster. If you are interest- past, young lawyers have helped Alabama citizens whose ed in being added to the list of volunteers willing to lives have been affected by hurricanes, tornadoes or assist FEMA in the event that a natural disaster strikes other disasters. In the aftermath of hurricanes Ivan and Alabama, please contact Brent. Katrina, young lawyers performed a tremendous amount The third way that you can render service is by volun- of pro bono service through this FEMA program, and in teering to assist in your local school system. The Young 2006 the Young Lawyers’ Section was awarded the Pro Lawyers’ Section participates in the Lawyer in Every Bono Award (Firm Category) by the Alabama State Bar. Classroom program designed and promoted by the Last year, the YLS FEMA committee, chaired by Brent Alabama Center for Law and Civic Education. This pro- Irby (Vestavia Hills), drafted a disaster assistance manual gram sends attorneys into seventh-grade classrooms to to assist young lawyers in handling these cases. The teach a course entitled Play by the Rules: Alabama Laws comprehensive manual, which is available online at for Youth. Through this course, seventh-graders learn about the laws to which they are held accountable. Although the YLS only became involved in this program in the past few years, the program has grown exponen- tially under the leadership of Mitesh Shah (Birmingham). At last count, there were several hundred attorneys around the state who volunteered to participate in it. I encourage you to contact Mitesh to get involved in this worthwhile program. Finally, after rendering service, young lawyers need to relax. To promote relaxation, networking and collegiality, the Young Lawyers’ Section hosts its annual Sandestin Seminar. This year, the seminar will be held May 14-16. It has always been our largest event, and it attracts young lawyers from around the state. There has been a concert- ed effort this year to recruit a diverse panel of speakers who will appeal to attorneys working in many different practice areas. In addition to the CLE opportunities offered at Sandestin, there are also beach parties, a golf tournament and a cocktail party featuring a silent auction. More detailed information about the seminar will be pro- vided in the next article, but you should be receiving a brochure in the mail about it soon. If you have any questions about your Young Lawyers’ Section, or if you would like to get more involved with your YLS, please contact me. ▲▼▲
102 March 2009 ALABAMA STATE BAR Volunteer Lawyers Program
2008 Pro Bono Honor Roll
AUTAUGA COUNTY P. David Matheny William A. Ellis, III Brenda S. Stedham Richard Waldrop By this Honor Roll, Anthony B. Bush Jessica M. McDill Roy Marvin Johnson, III Vaughn M. Stewart, II Stanley P. Walker the Alabama State George H. Howell Samuel McKerall Alexander M. Smith Cleophus Thomas, Jr. Stephanie A. Willis Karen H. Jackson Leonard F. Mikul Ted L. Williams, Jr. Nancy P. Vernon COLBERT COUNTY Bar recognizes the Kimberly G. Kervin Barney A. Monaghan BULLOCK COUNTY Joseph E. Whittington Ouida Y. Brown following lawyers for K. Andy Nelms T. Deven Moore Bradley S. Braswell CHAMBERS COUNTY Nicole Mintree Dill Jim T. Norman, III Mary E. Murchison Christina D. Crow Lisa M. Burdette Hartwell Alan Gargis their participation in Andy W. Tampling, Jr. Meegan B. Nelson Theresa J. Daniel Mark H. Carlton H. Thomas Heflin, Jr. volunteer lawyers George P. Walthall, Jr. Narissa Nelson Lynn W. Jinks, III Susan K. Harmon James Hughston programs across the BALDWIN COUNTY Charles R. Niven Elizabeth C. Smithart James C. Ingram, Jr. William T. Johnson, Jr. Shawn T. Alves Thomas Berry Norton, Jr. BUTLER COUNTY Charles G. Reynolds, Jr. Charles Kelley state. Their generous E. E. Ball James D. Patterson Timothy O. Craig CHEROKEE COUNTY John C. McKelvey assistance, cooperation Thomas O. Bear Allyson C. Pearce Lewis Hamilton Albert L. Shumaker Tim W. Milam P. Richard Hartley Vincent A. Bellucci S. Michelle Perry CHILTON COUNTY Terry Mock and dedication have Bayless Biles William L. Pfeifer, Jr. Forrest C. Rule, Jr. James T. Bailey Sheila F. Morgan Julian B. Brackin, Jr. Wendy Pierce C. Brandon Sellers, III Robert L. Bowers, Sr. enabled these programs Stanley Munsey Lois A. Carney Diane M. Porter Samantha R. Sellers David B. Karn Rebecca Narmore to provide legal repre- H. Max Cassady, Jr. Christi Roberts Charlotte M. Tesmer Andrew T. Mayfield C. Daniel Rosser, Jr. R. Paul Cater Mark D. Ryan CALHOUN COUNTY Dale Rouse Waid sentation to hundreds CONECUH COUNTY Allan R. Chason William E. Scully, Jr. Hobart H. Arnold, III CHOCTAW COUNTY Todd B. Watson of disadvantaged John Earle Chason David P. Shepherd William H. Broome E. Mark Ezell COVINGTON COUNTY L. Brian Chunn Chandler K. Stanard Raymond C. Bryan Timothy C. Hutchinson Alabamians. Ben M. Bowden Samuel Crosby Shelia V. Stone LeRoy Alan Cobb J. Perry Newton Corey D. Bryan Manley L. Cummins Jeremy P. Taylor Brian K. Combs William L. Utsey Michael Lance Jones, Jr. Jim G. Curenton, Jr. David Vaughn Richard W. Couch CLARKE COUNTY Ronald W. Penn Michael A. Dasinger, III Angela L. Walker Charles S. Doster Ronnie E. Keahey Benton H. Persons, Jr. Carl Davis Sara C. Wallace Wendy Ghee Draper Hardie B. Kimbrough Carolyn M. Dohn Marion E. Wynne, Jr. Howard W. East Phillip E. Mason Grant J. Scott Harry M. D’Olive BARBOUR COUNTY Christopher R. Garner J. Charles McCorquodale, IV CRENSHAW COUNTY Naomi G. Drake Paul W. Brunson, Jr. Shawn M. Hill Joseph C. McCorquodale, III Wayne Carter Kathryn Dananne Ferrell Jimmy S. Calton, Sr. Christopher M. Hopkins Lee B. Williams Brandon S. Coots Fred K. Granade Walter B. Calton Janet M. Hudson CLAY COUNTY Jon M. Folmar Charles Wright Ham Richard Harrison Kenneth Alan Hunt, Jr. Joseph D. Ficquette William R. King Jule R. Herbert, Jr. Deborah Hicks Rochelle D. Hunt COFFEE COUNTY CULLMAN COUNTY J. Bradford Boyd Hicks James L. Martin Jayme L. Kirkland Shannon R. Clark R. Champ Crocker Preston L. Hicks Donald J. McKinnon Fred Lawton, III Harry L. Gilder, Jr. Stephen Griffith George R. Irvine Courtney Potthoff Donna Britt Madison Dwain D. Hartwick Shelbie G. Hankey Richard D. Jensen William H. Robertson Stephen H. Miller Richard R. Klemm Kathryn A. King Harold A. Koons, III L. Shane Seaborn D. Brent Morrison William J. Moore James R. Knight Oliver J. Latour, Jr. Joel P. Smith, Jr. Nathaniel D. Owens Letitia L. Myers John Knight Jonathon R. Law BIBB COUNTY Polly E. Russell James M. Parker Greg Nicholas Gregory L. Leatherbury, Jr. John Hamilton, Jr. William D. Senter J. E. Sawyer Angela H. Sahurie Robert Scott Lewis Anthony Johnson Aundrea M. Snyder Leon M. Shirley Robert A. Sapp, Jr. J. Alan Lipscomb BLOUNT COUNTY Gary Stanko Chad E. Stewart Seth Thompson
The Alabama Lawyer 103 2008 Pro Bono Honor Roll
DALE COUNTY Loretta D. Collins Rebecca B. Brown Pamela M. Parker David Jason Hodge Joe W. Adams H. Wayne Copeland Debra H. Buchanan Gerald R. Paulk Mark M. Hogewood Robert H. Brogden Brad W. Cornett W. Trant Bullard, Jr. Finis A. Royal Edward A. Hosp Jack Corbitt Gregory S. Cusimano W. Terry Bullard Patricia Cobb Stewart Kaye K. Houser Donna C. Crooks Tameria S. Driskill Dustin R. Byrd William W. Tally Calvin Howard William Filmore Patricia H. T. Granger Jon Christopher Capps C. Rena Webb Gail Huffstutler Joseph J. Gallo A. Clark Hall Terry M. Carey Don Word Sidney J. Hughes J. David Robinson F. Michael Haney Tracy W. Cary JEFFERSON COUNTY Kearney D. Hutsler, III Robert G. Robison Charles C. Hart Daniel K. Clark Garry W. Abbott Paul A. Irwin, Jr. Tammy Lynn Stinson Emily P. Hawk Lori S. Collier Cassandra W. Adams Perry G. Jackson Everett M. Urech William D. Hudson J. Michael Conaway Monica Y. Agee Joseph C. Kreps Joe Walker David A. Kimberley Bobbie Crook Leslie M. Allen Linda Sanford Lehe DALLAS COUNTY Daniel B. King Patrick H. Davenport Eric C. Andreae Thomas M. Little Prince D. Chestnut Thomas A. King William Feagin Ricardo Aparicio Bobby Lott, Jr. April England Christina D. Knowles D. Taylor Flowers Sabra M. Barnett Champ Lyons, III B. Kincey Green, Jr. Donna F. McCurley Arne M. Foss Mary Lynn Bates Fred B. Matthews Blanchard L. McLeod, Jr. Bobbi J. McGehee Shana N. Gartlan Charles A. Beavers, Jr. Deborah A. Mattison Collins Pettaway, Jr. Philip E. Miles Elizabeth B. Glasgow Erin C. Bell Gerald Maxwell John E. Pilcher Jeffrey P. Montgomery Brent H. Gourley Rashad L. Blossom Bradley Curtis Mayhew Jeffrey C. Robinson Krystal Gail Padula Harry P. Hall, II Bradford W. Botes Jordan Montiel McBride P. Vaughan Russell James D. Pruett Tilden J. Haywood Gordon J. Brady, III Phillip W. McCallum Charles H. Sims, III Richard A. Rhea J. R.Herring Herbie W. Brewer, Jr. Reginald D. McDaniel Jan Garrison Thompson Michael L. Roberts Joe E. Herring, Jr. E. L. Brobston Douglas McWhorter Rick E. Williams, III John T. Robertson, IV David K. Hogg Brian P. Brock Joy J. Minner DEKALB COUNTY James T. Sasser Gary A. Hudgins Keith A. Brown Anne W. Mitchell L. Suzanne Bailey David W. Trottier Dow Huskey Kris D. Burbank Carolynn H. Moore James E. Brisendine A. Wilson Webb Clifford W. Jarrett Cynthia Vines Butler Patricia N. Moore E. Allen Dodd, Jr. William R. Willard, Jr. Daniel F. Johnson Leslie A. Caldwell Robert E. Moorer J. David Dodd J. Curtis Wright Lora Lea J. Johnson Robert Joseph Camp Mari Morrison Gary Hartline FAYETTE COUNTY A. Gary Jones Jack Carney Donna K. Naramore Robert K. Jordan Cynthia M. Bockman Patrick B. Jones, III Dawn S. Carre George M. Neal, Jr. Patricia C. Kellett Charles A. Langley Matthew Lamere Kevin E. Clark Robert L. Palmer Roger G. Killian Jerry Dale Lawrence, Jr. L. Jan Laney Gregory C. Cook Warren M. Parrino Glenn A. Shedd Louis Moore John M. Maddox Robert D. Cornelius E. Bryan Paul Patrick H. Tate Ronald C. Mendheim Melissa B. Croxton Eric G. Peterson John H. Ufford, II FRANKLIN COUNTY Roger H. Bedford, Jr. Benjamin E. Meredith John G. Dana Michelle K. Pieroni W.N. Watson Jerry C. Porch Joseph Morris Dow A. Davidson Denise Blue Poe Robert G. Wilson Geneva County Malcolm R. Newman David D. Dowd, III Andrew James Potts ELMORE COUNTY Angela Turner Drees D. Jason Britt Alfred J. Danner Joel M. Nomberg Lorraine W. Pringle Bonita J. Caldwell Laura A. Dell William H. Odum, Jr. A. Brook Emfinger Jennifer H. Reid John I. Cottle Letta D. Gorman Nancy S. Pitman Melinda M. Eubanks Myra C. Roberts Regina B. Edwards David J. Harrison H. Samuel Prim, III Barton B. Evans Lisa C. Robinson John E. Enslen Jeffery D. Hatcher Joel W. Ramsey Jesse Evens, III Katrina Ross John D. Norris David F. Holmes Richard H. Ramsey, III Michael B. Fargarson Edward Kenneth Rosser Roderick B. Perdue Joseph P. Hughes Shannon A. Rash Joseph A. Fawal Ayn Traylor-Sadberry R. Brooke K. Poague Michael P. Hughes Tommy R. Scarborough Matthew B. Flanigan Vincent J. Schillieci, III ESCAMBIA COUNTY John L. Knowles Jere C. Segrest Elizabeth R. Floyd David L. Scott James E. Coale David W. Rousseau Rufus Smith, Jr. Alan L. Foster Heather R. Sharp John L. Jernigan, III HALE COUNTY J. Farrest Taylor Patrick W. Franklin Amy J. Shields Melinda L. Maddox Patrick S. Arrington William B. Wadsworth V. Edward Freeman, II Joan B. Singleton Robert H. Maxwell HENRY COUNTY J. Kevin Walding Robert S. Gargis, II Melissa E. Smiley Everette A. Price, Jr. Samuel C. Money Gregory L. Watt Shannon George Austin E. Smith William R. Stokes, Jr. James D. Peterson Freddie White Tena M. George David Smith Jeffrey A. White HOUSTON COUNTY JACKSON COUNTY Kristel N. Gibbons Marshall E. Smith, III ETOWAH COUNTY Samuel L. Adams Gregory Scott Berry Leatha Kay Gilbert William F. Smith, II Myron K. Allenstein M. Hampton Baxley Daryl R. Eustace Robert L. Gorham Angeline J. Sperling Rose Marie Allenstein Wade Baxley Stephen M. Kennamer Elizabeth Davis Harris Gregory C. Starkey Michele G. Bradford Bryan S. Blackwell S. Jack Livingston Thomas R. Head, III Amelia K. Steindorff Will H. Clay Randy C. Brackin Kenneth H. Looney George M. Higginbotham Thomas E. Thrash
104 March 2009 2008 Pro Bono Honor Roll
Tyler C. Vail Brant Young Roger Pierce Winston V. Legge, Jr. Jamie P. Logan The Alabama State Michael A. Vercher LAWRENCE COUNTY Stephanie M. Pollard Kimberly B. Martin Louis B. Lusk Bar and the four Karen A. Vest Rod M. Alexander William Larry Ray M. Clay Martin Jeff R. McLaughlin William B. Ware Mark A. Dutton Catherine H. Richardson Ben L. McArthur Joel S. Mitchell organized pro bono Katrina Washington Errek P. Jett Robert D. Rives Reta A. McKannan E. Charles Ogden, III programs salute all Latanisha Watters John D. Kimbrough Mitzi L. Sears George A. Moore Elisa Smith Rives Kenneth E. Watts Sean Masterson James Sprayberry Chad A. Morgan P. David Roadruck private attorneys Gary L. Weaver Harold Speake Elaine Thomaston Grady L. Morgan Danny Smith across the state who Andrea L. Weed Mike F. Terry Philip A. Thompson Rachel M. Morgan Stephen B. Smith Martin E. Weinberg H. Jerome Thompson Cecil Tipton, Jr. Patrick G. Nelson Steven Vincent Smith donate some portion of Sandra D. Parker J. Bennett White LEE COUNTY Edward F. Tracy Byron Waldrop their time to providing Derry Olive Wilcox Lance E. Abbott Philip O.Tyler J. Clark Pendergrass James D. Walker Christopher J. Williams John T. Alley, Jr. Arnold Umbach, Jr. JoAnn M. Perez Dan T. Warnes free legal assistance to Mark S. Williams Brian Ashley Clinton L. Wilson Timothy P. Pittman Coleman K. Wilson low-income persons. Ronald D. Williams Russell C. Balch LIMESTONE COUNTY Emily B. Prater Wade K. Wright Walter A. Williams, Jr. J. Tutt Barrett Henry W. Blizzard, Jr. Richard R. Raleigh, Jr. MOBILE COUNTY Jenny R. Wilson J. Gary Black Stephen G. Campbell Gregory H. Revera Christina M. Adcock Robert W. Wolfe Beverlye N. Brady James M. Corder, Jr. L. Thomas Ryan, Jr. Lee E. Bagley Shemireyah Young James E. Bridges, III Dihanne Perez Guilbert Brad P. Ryder Matthew J. Bauer Tiara S. Young Margaret Y. Brown Claire T. C. Jones Shelly Thornton Kimberly L. Bell LAMAR COUNTY Rebecca P. Buxton Byrd R. Latham Frank S. Ward Britten L. Britt Glenn Carlyle Noe Richard F. Calhoun, Jr. Donald B. Mansell Bobbi J. Weeks-Wilson Harwell E. Coale, III LAUDERDALE COUNTY M. Joanne Camp Harlan D. Mitchell MARENGO COUNTY Eric B. Cromwell, II Ian M. Berry John E. Cochran, Jr. James D. Moffatt Thomas H. Boggs, Jr. Aurelius E. Crowe Ernest N. Blasingame, Jr. Robert H. Cochran Jere C. Trent Russell Burdett Craig D. Dahle Daniel E. Boone William D. Coleman Brandon C. Wise William Coplin, Jr. Kristin L. Daniels Ryan G. Brake Larry G. Cooper, Jr. LOWNDES COUNTY Woodford Dinning, Jr. Tracy R. Davis Greg K. Burdine Paul R. Cooper Arlene Richardson Gregory Griggers Carl E. Freman Edward W. Doggett William T. Crutchfield MACON COUNTY Richard S. Manley Timothy M. Grogan James R. Engelthaler Patrick C. Davidson Katy Smith Campbell William S. Poole, Jr. Robert L. Hagler, Jr. Michael Fraser Ford Nancy Jones Davis Fred D. Gray, Jr. Sebie Gibbs Sellers Roy W. Harrell, III Robert L. Gonce W. David Dawson Linda H. W. Henderson K. Scott Stapp Christine C. Hernandez Benjamin R. Graves Joseph C. Denison Tiffany N. Johnson William A. Ward Randall S. Hetrick James E. Hall, II W. Don Eddins Ernestine S. Sapp MARION COUNTY Charles A. Hicks Roy Hasseltine Thomas M. Eden, III Brian P. Strength William H. Atkinson Jennifer Holifield R. Willson Jenkins, Jr. Ewell H. Elliott, Jr. MADISON COUNTY William B. Fite William B. Jackson, II Gary Jester Frances C. French Allison B. Akins J. Tony Glenn Ishmael Jaffree Daryl Wayne Moon Van C. Gholston Eric J. Artrip C. Harry Green Gregory R. Jones Kim A. Norris William E. Hardy, Jr. Angela S. Ary Diane Haden Henderson Kyla G. Kelim A. Stewart O’Bannon, III James K. Haygood, Jr. John Baggette, Jr. R. Wyatt Howell, Jr. Christopher Kern C. David Odem Patrick Hays, Jr. James K. Brabston J. O. Isom Clay A. Lanham Dennis N. Odem J. Lister Hubbard Larry W. Brantley A. Wade Leathers Byron Lassiter John S. Odem Henry H. Hutchinson Frank M. Caprio John V. Martine Tracie B. Lee-Roberson Joe M. Patterson, Jr. Tom E. Jones Annary A. Cheatham Lonnie D. Spann Yancey D. Lott, Jr. Harold G. Peck C. Robin Kelley Donald L. Christian, Jr. Jeremy L. Streetman Edward R. March, III Conrad Pitts Glen D. King P. Michael Cole Oliver F. Wood James H. McDonald, Jr. Jamy B. Poss Katherine M. Klos Edmund A. Crackel, III MARSHALL COUNTY Jeffrey G. Miller L. Mallette Q. Richey Margaret Ann Mayfield John M. Debro George M. Barnett James C. Morris Cindy S. Schuessler John W. McCollum, Jr. Patricia D. Demos E. Will Beard Louis C. Norvell Henry Sherrod, III James D. McLaughlin Suzanne C. Dorsett Randy Beard Brandy B. Osborne Scott C. Shimer Marrell McNeal Samuel H. Givhan James R. Berry Terrie S. Owens Hilda Trapp Smith Robert T. Meadows, III Rebekah L. Graham R. Claud Burke Laura A. Palmer Robert F. Smith Gail Smith Meek Kevin C. Gray Jimmy F. Carnes Melinda J. Parks Ricky V. South Brian T. Mosholder Lisa F. Grumbles Norma M. Chaviers J. Day Peake Donald G. Tipper Robert F. Northcutt Gabrielle Helix Richard Fricks Mary E. Pilcher Albert J. Trousdale, II Roben Nutter Tara L. Helms L. Dale Fuller Wanda B. Rahman Randy D. Whitten Christopher A. Pankey Mary R. Hill John C. Gullahorn Troy T. Schwant Douglas Wright Phyllis F. Parker Jeffrey A. Johnson Lisa M. Hancock Mary Kathleen W. Steele Joe H. Yates Robert H. Pettey, Jr. George P. Kobler Charles Hare, Jr. K. Brandon Strickland
The Alabama Lawyer 105 2008 Pro Bono Honor Roll
Bryan A. Thames Marion D. Chartoff John Allen Howard, Jr. Jobe T. Ott Judy B. Van Heest Stacey L. Thomas Kimberly M. Clenney S. Scott Hoyem Clyde C. Owen, Jr. C. Gibson Vance Deena R. Tyler William P. Cobb, II Joseph L. Hubbard, Jr. Debora E. Palmer Stewart E. Vance P. Dean Waite, Jr. Michael J. Cohan R. Austin Huffaker, Jr. B. Diane Paris Robert J. Varley Leslie G. Weeks Shawn J. Cole Robert A. Huffaker J. Ed Parish, Jr. George H. Wakefield, Jr. Jim W. Zeigler Zachary T. Collins Allison L. Ingram George R. Parker J. Dorman Walker, Jr. David B. Zimmerman Sabrina L. Comer Michael S. Jackson Kelly F. Pate James N. Walter, Jr. MONROE COUNTY Joel D. Connally Jimmy D. Jacobs Simeon F. Penton Kim O. Ward John B. Barnett, III Roianne H. Conner Marci S. Johns Michael Petersen Robert C. Ward, Jr. Lynn B. Byrd Pamela G. Cook L. Scott Johnson, Jr. J. Scott Pierce Kyle D. Weidman Tonja B. Carter Lee H. Copeland James E. Johnston A. Wesley Pitters Milton J. Westry John M. Coxwell, Jr. Michael J. Crow Jamie A. L. Johnston Gregory M. Pool Michael L. White Katharine W. Coxwell Laura L. Crum Sarah S. Johnston Jimmy B. Pool Jesse M. Williams Lori L. Crawford S. G. Culpepper, Jr. Donald R. Jones, Jr. Debra Haynes Poole Jim E. Williams Jeff D. Dyess Geraldine R. Daniels Rhon E. Jones J. Cole Portis Trina Sanders Williams Laura R. Grantham Larry E. Darby Richard K. Keith Donna W. Prashad James L. Wright Nicholas Hare, Jr. Greg L. Davis Susan E. Kennedy Richard L. Pyper D. Coleman Yarbrough W. Bob McMillan William R. Davis T. Cowin Knowles Stacy L. Reed Glenn D. Zimmerman Donna L. Silcox Richard C. Dean, Jr. Thomas E. Kondrak Frank W. Riggs, III MORGAN COUNTY Mickey Womble Kimberly S. DeShazo Thomas O. Kotouc Jim A. Rives James G. Adams, Jr. MONTGOMERY COUNTY Cathy B. Donohoe Nathan F. Kuykendall Mindi C. Robinson Roy S. Anderson Samuel Adams Jeffery C. Duffey Robin G. Laurie Riley W. Roby Douglas R. Bachuss, Jr. Deanie C. Allen Kendall C. Dunson Barry C. Leavell Karen S. Rodgers Howard M. Belser, III J. Greg Allen Russell T. Duraski W. Don Letford A. Nikki Rothschild Jeffrey S. Brown Charles L. Anderson Charles W. Edmondson Sandra H. Lewis Robert J. Russell, Jr. Robert L. Burrell J. Knox Argo Joana S. Ellis Donald B. Little J. Lenn Ryals Kelly D. Butler Shapard D. Ashley Frederick T. Enslen, Jr. John A. Little Mark W. Sabel, Jr. Thomas A. Caddell Zack M. Azar Paul D. Esco Edwin K. Livingston Robert E. Sasser David B. Cauthen, Jr. Charles W. Barfoot R. Graham Esdale, Jr. LuAn M. Long J.P. Sawyer Carl A. Cole, III Judy H. Barganier Quindal C. Evans Terry W. Luck, III William P. Sawyer Carl M. Cowart, Jr. Constance S. Barker Greg B. Everett B. Saxon Main Patrick W. L. Sefton Tina R. Dawes Jere L. Beasley Hamilton N. Farmer Thomas Mancuso Bobby Segall Thomas M. Di Giulian Julia A. Beasley Ben H. Farrow Emily C. Marks Will B. Sellers Bingham D. Edwards Timothy S. Bell David G. Flack W. Troy Massey L. Landis Sexton Arthur Groover R. Joyce K. Bigbee Peter S. Fruin Warren C. Matthews Roman A. Shaul Garland Hall, III Andy D. Birchfield Bill H. Fuller, Jr. W. Joseph McCorkle, Jr. C. Winston Sheehan, Jr. Stephen V. Hammond William R. Blanchard, Jr. E. Dianne Gamble Mickey G. J. McDermott G. Griffin Sikes, Jr. Denise Matthess Hill Donna A. Bland C. Nelson Gill J. Douglas McElvy Launice P. Sills Amber Y. James Britt S. Booth Richard H. Gill Lee A. McIver Spence A. Singleton Sharon A. Johnston Joe T. Booth H. Lewis Gillis Richardson B. McKenzie, III Clifton E. Slaten Jerry Knight Eric A. Bowen Carla Cole Gilmore Sabrina L. McKinney Jerome D. Smith Kevin R. Kusta David R. Boyd C. Lance Gould C. Knox McLaney, III Maury D. Smith Mary Ellen Lamar W. Evans Brittain Yong U. Gregg Gloria J. McPherson Sylvester S. Smith David W. Langston Richard E. Broughton Michael A. Griggs Julian L. McPhillips, Jr. C. Franklin Snowden, III Robert E. Long, Jr. E. T. Brown N. Gunter Guy, Jr. LaTasha A. Meadows Angela C. Starr Barnes F. Lovelace, Jr. Rhonda Brownstein John Hagood Tyrone C. Means Chuck A. Stewart, III Jenny McLeroy Judkins M. Bryan Timothy C. Halstrom William Z. Messer Micki Beth Stiller R. T. McWhorter, Jr. Joseph E. Burkhart James D. Hamlett Thomas J. Methvin Pamela Swan William L. Middleton, III James A. Byram, Jr. Alan T. Hargrove, Jr. Brian W. Moore Thomas C. Tankersley Phil D. Mitchell, II David B. Byrne, III Gerald W. Hartley Richard D. Morrison Dana G. Taunton Dan Nelson Boyd F. Campbell Frank H. Hawthorne, Jr. F. Chadwick Morriss Anwar Taylor H. M. Nowlin, III Marvin H. Campbell J. Cliff Heard Connie J. Morrow Lisa C. Temple Gary A. Phillips Malcolm N. Carmichael David W. Henderson J. Flynn Mozingo Robert J. Thomas Joseph Benjamin Powell Gregory A. Carr D. Mitch Henry Mark D. Mullins Jennifer J. Tompkins Sherman B. Powell, Jr. Elizabeth B. Carter Pamela R. Higgins Robert F. Nelson C. Clay Torbert, III Joseph W. Propst, II Gordon T. Carter W. Mike Hill, Jr. Stephen M. NeSmith W. Terry Travis Gregory A. Reeves Mark N. Chambless Shannon L. Holliday Deborah M. Nickson Scarlette M. Tuley Christy W. Richardson William R. Chandler Ronald A. Holtsford Dorothy F. Norwood Wayne P. Turner Julia S. Roth John W. Charles, III Beverly J. Howard Tabor R. Novak, Jr. Gina M. Tur-South Nicholas Roth
106 March 2009 2008 Pro Bono Honor Roll
Steven Sasser C. Todd Henderson Frank M. Cauthen, Jr. Barry L. Mullins Jonathan C. Sapp Organized pro bono Kenneth Schuppert, Jr. Sandy F. Johnson Mary Beth W. Cavert Jason C. Neff Donna W. Smalley programs make us Timothy L. Shelton Jennifer L. Jones Randall Cheshire Thomas A. Nettles, IV Charles Tatum, Jr. William E. Shinn, Jr. Rachel A. King D. Wayne Childress Robert E. Norton Steven A. Thomas keenly aware of the Michael E. Sparkman John A. McBrayer Ginger D. Cockrell Paige M. Oldshue Mark B. Turner contribution and con- R. Eric Summerford John E. Medaris Michael C. Cornwell John Owens Greg M. Williams Kevin Teague E. Farley Moody, II Annette B. Crain Edwin L. Parker WASHINGTON COUNTY cern of many of our J. Glynn Tubb Jo Ellen Mudd Laura J. Crissey W. Cameron Parsons Harold L. Odom colleagues and remind Shelly S. Waters P. Shawn Rumsey Silas G. Cross, Jr. Kathryn O. Pope A. Michael Onderdonk Robert D. Weathers, Jr. Steven Sears Kenneth D. Davis Joe E. Powell E. Tatum Turner us of our own need to Candice J. Shockley Laurie Pratt-Johns Brian M. White Randal K. Davis Halron W. Turner serve our community James D. Whitmire J. Timothy Smith Ronald L. Davis Jennifer S. Precise WILCOX COUNTY Kenneth R. Widner Jonathan A. Spann Karen N. Dice Harry M. Renfroe, Jr. Donald M. McLeod through our profes- Ellen C. Wingenter Gerald A. Templeton Linda C. Dunn Robert R. Reynolds Brenda M. Pompey sion. We hope that all PERRY COUNTY Harold E. Woodman Nora E. Elder W. Bradford Roane, Jr. WINSTON COUNTY James M. Barnes, Jr. Alex A. Yarbrough Robin M. Elliott P. Monica Rodgers D. Russell Eason lawyers will someday Kirtley W. Brown SUMTER COUNTY Marshall A. Entelisano Barbara Rogers Darlene Eason participate in organ- Robert D. Bryant William C. Brewer, III Isaac Espy Adrian M. Rowley Betsy M. Harrison Thomas R. Long, IV I. Drayton Pruitt Katie Seals Ferguson Jenny R. Ryan Jerry W. Jackson ized pro bono pro- Robert H. Turner TALLADEGA COUNTY John T. Fisher, Jr. W. David Ryan, II Hobson Manasco, Jr. grams so that we can PICKENS COUNTY Cheryl D. Barnett Gregory S. Frazier Mark A. Scogin B. Grant McNutt William D. King, IV Shelly L. Barnhart Mark S. Gober R. Cooper Shattuck Jeff A. Mobley recognize their contri- John Earl Paluzzi Sarah Clark Bowers Elizabeth S. Gordon Lynn McCreery Shaw Scott A. Slatton butions too. John A. Russell, III L. Shaw Gaines Robbyn A. Gourdouze Patrick O. Sims PIKE COUNTY Gregory S. Graham Laura K. Gregory James J. Sledge BIRMINGHAM Robert C. Faircloth Trina W. Hammonds Anne W. Guthrie James C. Smith VOLUNTEER LAWYERS Joseph Faulk James N. Montgomery, Jr. Bert Guy James D. Smith PROGRAM William B. Key, III Michael A. O’Brien, Mary Ann Hampton Jeffery C. Smith John Aaron Ruth L. Pawlik Jeanne Dowdle Rasco J. Marland Hayes Alyce Manley Spruell Oscar W. Adams, III RANDOLPH COUNTY William K. Rogers, Jr. Josh P. Hayes Shelly H. Standridge Robert H. Adams Michael S. Jazwinski Barry D. Vaughn Walter S. Hayes Edgar Clark Summerford Robin A. Adams Kesa M. Johnston TALLAPOOSA COUNTY Elizabeth A. Hornsby Christopher Thigpen Monica Agee T. Oliver Kitchens Faye H. Edmondson Byron E. House Katie B. Thompson Janell M. Ahnert RUSSELL COUNTY Randall S. Haynes David A. Hughes Matthew Q. Tompkins Craig A. Alexander L. Joel Collins Angela J. Hill John D. Humber Terri O. Tompkins Charles W. Allen Peter A. Dumbuya John Oliver, II Albert Jones Jessica V. Tubbs Elbert S. Allen John D. Jones Robin F. Reynolds Christopher H. Jones Brian D. Turner Mitchell G. Allen Sam E. Loftin, Jr. Mark A. Treadwell, III Thomas M. Jones James Turner Roger C. Allen Yvonne R. Rush Kenneth E. Wright, Jr. William A. Jones Mary A. Turner Russell Q. Allison Thomas F. Worthy TUSCALOOSA COUNTY Hattie Kaufman Tyler D. Vann M. Clay Alspaugh ST. CLAIR COUNTY James Abernathy, II W. H. Kennedy William W. Walker, Jr. LaBella S. Alvis A. Dwight Blair Stuart D. Albea Robert R. Kuehn Raymond Ward Wade S. Anderson Erskine Funderburg, Jr. Cynthia Lee Almond Othni J. Lathram Paula W. Watkins Donald K. Andress Alan C. Furr M. Bradley Almond Shay V. Lawson Robert H. Webb Allan L. Armstrong Guy C. McCombs David M. Andres Hugh M. Lee Rachel L. Webber W. Michael Atchison Maxine C. Moses Foster C. Arnold John Lloyd G. Stephen Wiggins Monica Austin-Hatcher Elizabeth Parsons A. Colin Barrett Julie L. Love Wayne L. Williams Kellie Avery-Tubb Randall K. Richardson C. Park Barton, Jr. David P. Martin WALKER COUNTY Nolan E. Awbrey Charles E. Robinson, Jr. John A. Bivens T. Sheree Martin James R. Beaird Joyce Baker-Selesky Fred W. Teague Nettie C. Blume Allen W. May, Jr. James C. Brakefield Helen Ball William J. Trussell Jason E. Burgett Emily K. McCarson Robert Bryan Michael S. Ballard Edwin Van Dall, Jr. Gaines B. Brake John P. McCulsky Richard E. Fikes Shannon L. Barnhill Tommie Jean Wilson H.E. Browder Robert L. McCurley, Jr. Patricia A. Frederick R. Bruce Barze, Jr. SHELBY COUNTY Pam H. Bucy D. Tara Middleton Patrick I. Gustin LaVeeda M. Battle Brent L. Callihan Dolores C. Burroughs Edwina E. Miller Alton M. Hambric Robert E. Battle Frank Ellis, Jr. Jane L. Calamusa Steven W. Money Garve W. Ivey, Jr. Robert Baugh Russell L. England Craig A. Cargile Charles E. Morgan Philip Nelson Kimberly M. Bawgus Bruce M. Green Michael J. Cartee C. Delaine Mountain Robert F. Richardson Michael K. Beard Sanford D. Hatton, Jr. Susie T. Carver Clinton D. Mountain, Jr. Brian S. Royster Elizabeth G. Beaube
The Alabama Lawyer 107 2008 Pro Bono Honor Roll
Steven A. Benefield C. Clark Collier Suzanne A. Fleming Stephen D. Heninger James B. Leonardi Jeffrey W. Bennitt John David Collins W. Bains Fleming, III Kristen K. Henson C. Saint Lewis Robyn B. Bennitt Gerald D. Colvin, Jr. Willie Florence, Sr. Kenric W. Herren William R. Lewis Edward J. Berry Patricia Y. Comer Charles A. Flowers Todd M. Higey J. Flint Liddon, III Yvonne N. Beshany Shannon N. Connor Shannon D. Floyd L.F. Hilbers Warren B. Lightfoot, Jr. Ellis D. Bingham, III Ivan B. Cooper Kira Fonteneau Tom Hiley Curtis O. Liles, III Joseph S. Bird, III N. Lee Cooper William T. Fortune Kelli Hogue-Mauro Paul A. Liles Calvin W. Blackburn Patrick N. Cooper Alan L. Foster Lee M. Hollis James S. Lloyd Ulyesa Blackmon Robert E. Cooper Karen W. Fox Jeff Holmes William B. Lloyd Duncan B. Blair T. Louis Coppedge Samuel H. Franklin Edward M. Holt Don B. Long, Jr. John N. Bolus Denise A. Copeland John R. Frawley, Jr. Kimberly A. Homer William L. Longshore C. Peter Bolvig Christopher Couch Michael D. Freeman Sanford G. Hooper Charles J. Lorant Elizabeth C. Bone J. Timothy Coyle William J. Freeman James A. Hoover J. Kris Lowry Karen O. Bowdre D. Sims Crawford Douglas I. Friedman Richard Horsley Timothy M. Lupinacci Deloris M. Boykin Stephanie M. Crenshaw Peter S. Fruin Edward A. Hosp Robby Lusk Michael C. Bradley Wendy Brooks Crew Floyd D. Gaines Kaye K. Houser George G. Lynn Albert P. Brewer Charles R. Crowder Lucas B. Gambino Sybil Corley Howell Mark W. Macoy Thomas H. Brinkley Greg Curran Robert T. Gardner Matthew L. Huffaker G. R. Mahmood William H. Brooks Richard A. Cusick Anthony G. George James F. Hughey Greer B. Mallette Courtney B. Brown Henry C. Dailey Beth Gerwin Robert B. Huie Duncan Y. Manley Scott S. Brown John G. Dana Anna L. Giattina Scott Humphrey Reid S. Manley Stephen E. Brown Roy L. Dancybey Enrique J. Gimenez Melody L. Hurdle Ted L. Mann Brannon J. Buck Walter E. Daniels Dennis E. Goldasich, Jr. Shannon D. Hutchings Kemberli L. Marks Thomas W. H. Buck Kelvin L. Davis Stephen J. Goldstein J. Frederick Ingram Alexander J. Marshall, III Pam Bucy Paige M. Davis J. Jeff Goodman Russell L. Irby Emory Mauldin Stephen Bumgarner Shannon B. Davis Stevan K. Goozee Glenn E. Ireland Alaric O. May F. Tucker Burge William A. Davis James L. Goyer, III H. C. Ireland, III W. Randall May S. Greg Burge William M. Dawson Michael G. Graffeo Chervis Isom Bradley C. Mayhew Warren Burke, Jr. William L. Deas Roderick Graham K. Stephen Jackson Susan G. McAlister Charles A. Burkhart Paul J. DeMarco Jeffrey M. Grantham Stephen C. Jackson Walter F. McArdle Robin Burrell Damon Denney Casey C. Graves Frank S. James, III Terri D. McClung John H. Burton, Jr. Ann S. Derzis Robin H. Graves Karen B. Johns Laurence J. McDuff Bruce A. Burttram Patricia Diak Brendette Brown Green Carl Johnson Michael L. McKerley Jennifer M. Busby Timothy L. Dillard John E. Grenier David W. Johnson Jim G. McLaughlin Arnold Bush David Donahue Carrie Griffin Joe Johnson, Jr. Crystal McMeekin Jim Bussian Luther M. Dorr, Jr. Matt Grill Alexander W. Jones Frank McPhillips Thomas J. Butler Christie Dowling Charles T. Grimes Haskins Jones Douglas L. McWhorter William C. Byrd B. Boozer Downs Jessica S. Grover Loring S. Jones, III John E. Medaris Kenneth R. Cain, Jr. Helen K. Downs Eric Lance Guster Marcus A. Jones, III Kristin B. Metheny Robert J. Camp Mark Drew Larry Lee Guthrie Robert A. Jones, Jr. Cellie W. Miller J. Russell Campbell C. Ramsey Duck W. Patton Hahn William D. Jones, III Gerald L. Miller Mary L. Campisi John P. Dulin, Jr. John W. Haley Lucy W. Jordan Tracy T. Miller Lois B. Carlisle Carolyn L. Duncan Jane G. Hall Joe Joseph Derrick A. Mills Terry Carlisle Charles H. Dunn John C. Hall Paul M. Juliano William H. Mills Richard P. Carmody Thomas E. Dutton Scott R. Haller Richard Keller Matthew C. Minner Clay R. Carr John A. Earnhardt Todd N. Hamilton Douglas L. Key Anne W. Mitchell D. Chris Carson Robert D. Eckinger William Eric Hamilton William H. King, III Christopher Mitchell Kay L. Cason Kathryn Eldridge Chad Hanson Karen G. Kolaczek James R. Moncus C. Paul Cavender Michael D. Ermert Laura S. Hardin Robert R. Kracke Carolynn H. Moore Douglas J. Centeno Rebecca C. Eubanks Lorrie L. Hargrove Cynthia Lamar-Hart Jamie Moore Cheryl D. Chapman Jesse P. Evans Christopher Harmon Jayna P. Lamar John G. Morrison C. Cathy Catawanich David L. Faulkner Danita T. Haskins John M. Laney, Jr. Mariellen Morrison James S. Christie, Jr. Joseph A. Fawal Gregory H. Hawley Bradley W. Lard Randall H. Morrow Kevin E. Clark Daniel B. Feldman Robert J. Hayes Sarah Y. Larson William H. Morrow Thomas C. Clark, III James E. Ferguson, III Susan S. Hayes Nicholas C. Laster Anne R. Moses William N. Clark G. R. Fernambucq Kenneth Haynes Rejeana Lavender Charles H. Moses, III Neil R. Clement William S. Fishburne Frances Heidt John R. Lavette Mitchell S. Mudano William Clemon Deborah P. Fisher Jack E. Held Linda S. Lehe Robert A. Mullins Donald L. Colee Linda A. Fiveash Hugh C. Henderson Rocco J. Leo Michael D. Mulvaney
108 March 2009 2008 Pro Bono Honor Roll
Grace R. Murphy F. Brady Rigdon Charlene I. Stovall Bryant A. Whitmire, Jr. Robert McCaleb Justice for all is more Amy K. Myers Ferris S. Ritchey, III C. Mark Strength John P. Whittington Reta McKannan than just a cliché. It is William R. Myers Jerry Roberson Christine R. Strong Gregory O. Wiggins Jeffery McKinney James P. Naftel Gerri W. Robinson H. Whitfield Strong, Jr. Denise F. Wiginton Rebekah McKinney a time-honored ideal Patrick K. Nakamura Lisa C. Robinson Ted Stuckenschneider Donald F. Wiginton Tommy McMurtrie to which all lawyers George M. Neal Reginold Robinson Eugene B. Stutts David T. Wiley Chad A. Morgan Laura C. Nettles Robert Roden John W. Sudderth Christopher J. Williams Richard J. R. Raleigh, Jr. and all Americans E. Bryan Nichols Alan T. Rogers Sidney C. Summey Leotis Williams Aaron Ryan aspire. By volunteering James L. Noles Elizabeth A. Roland William R. Sylvester S. Douglas Williams L. Thomas Ryan, Jr. Christy O’Callaghan Nicole F. Romano John B. Tally T. Craig Williams Bradley P. Ryder your time and skill to J. William Rose, Jr. Doris H. Williford D. Brian O’Dell Robert W. Tapscott, Jr. Teresa Ryder provide legal services Madison W. O’Kelley, Jr. Richard W. Rowell Jarred O. Taylor, II Edward B. Willis H. Kenan Timberlake M. Beth O’Neill Frank J. Russo Thomas L. Thagard David M. Wilson Shelly D. Thornton to those who cannot Michael B. Odom S. Shay Samples Jack R. Thompson, Jr. Kenneth Joe Wilson H. Carey Walker, III normally obtain them, Thomas L. Oliver, II J. Michael Savage James J. Thompson Harlan F. Winn Carol J. Wallace Jason M. Osborn David C. Schwartz Ronald F. Thompson Miriam Witherspoon Jake Watson you are making a Justin Otwell David Scott Thomas E. Thrash Stephanie K. Womack Daniel Wilson significant contribution David F. Ovson Vanessa Searight Dana Thrasher J. Fred Wood, Jr. Stephen M. Wilson Lewis W. Page, Jr. Thomas L. Selden W. Lee Thuston Lisa L. Woods David E. Worley toward making that Dennis G. Pantazis Sara Senesac Ayn Traylor-Sadberry Peter M. Wright ideal a reality. Jeffrey W. Parmer Kirby Sevier J. Alan Truitt J. Terrell Wynn MOBILE BAR Warren M. Parrino J. Banks Sewell Jerome Tucker Suzanne O. Yayman ASSOCIATION Bruce A. Parsons Stephen L. Sexton Minnie L. Tunstall Christopher L. Yeilding VOLUNTEER LAWYERS Nyya C. Parson-Hudson Michael Shabani Anita Terry Tye Tiara S. Young PROGRAM Honorable J. Gary Pate Jacqueline S. Shaia L. Griffin Tyndall Lee H. Zell Carvine Adams Kevin W. Patton J. Martin Sheffield Arnold W. Umbach, III Christina N. Adcock Henry L. Penick Carolyn R. Shields David O. Upshaw MADISON COUNTY Geoffrey D. Alexander C. Jackson Perkins Wynn Shuford William K. Upshaw VOLUNTEER LAWYERS R. Alan Alexander Drew W. Peterson Henry E. Simpson William C. Veal PROGRAM Helen J. Alford Byron W. Phillips Fern Singer Susan G. Wagner Daniel F. Aldridge Gary P Alidor Anthony J. Piazza Clarence M. Small, Jr. William B. Wahlheim Chad W. Ayres J. Hodge Alves, III Charles Pickney Phil K. Smartt Henry Walker John Baggette Donna Ames J. Clinton Pittman Melissa E. Smiley Marion F. Walker Vicki Bell Orrin K. Ames, III James M. Pool Alfred F. Smith, Jr. Valerie Frye Walker J. Mark Bledsoe Ferrell S. Anders Maibeth J. Porter Carol A. Smith Alison Wallace James K. Brabston Douglas L. Anderson Anthony C. Portera Cynthia P. Smith Michael B. Walls Larry Brantley Tristan R. Armer Andrew J. Potts Daniel B. Smith James F. Walsh Charles H. Brasher, Jr. Gordon G. Armstrong, III J. Bradley Powell David M. Smith Stephen A. Walsh Clint W. Butler Katherine B. Arnold Kimberly Till Powell Gary C. Smith Hardwick C. Walthall Clem Cartron G. Wayne Ashbee Rolessa L. Powell J. Houston Smith, III Dafina C. Ward Joseph M. Cloud Kristin Ashworth Harlan I. Prater Jane C. Smith James S. Ward Susan Conlon Grover Ernst Asmus II Honza J. F. Prchal John W. Smith T Laura P. Washburn Maureen Cooper Daryl A. Atchison D. Mark Price Kathleen S. Smith Jacqueline B. Washington Amy S. Creech James E. Atchison James L. Priester W. Wheeler Smith Ashley E. Watkins Andrew Dalins Bruce L. Aune William S. Pritchard, III William W. Smith Cynthia D. Watson Jay E. Emerson, Jr. Joseph H. P Babington David W. Proctor John Q. Somerville Leila H. Watson Robert C. Gammons Mary M. Bailey Bennett L. Pugh Paul Spain William Waudby Connie L. Glass Melvin Lamar Bailey Frances King Quick Herbert B. Sparks, Jr. Katherine A. Weber Kenneth D. Hampton Michael E. Ballard Michael C. Quillen J. Callen Sparrow H. Thomas Wells Kevin Heard J. Daniel Barlar, Jr. Charles M. Quinn Clifford M. Spencer, Jr. Leonard Wertheimer Gabrielle Helix Eaton G. Barnard W. Larkin Radney Robert H. Sprain, Jr. Jonathan S. Wesson Tara L. Helms David L. Barnett William A. Ratliff David Spurlock Kimberly R. West James P. Hess Joe E. Basenberg James P. Rea Stephen W. Stallcup Linda West Jeffery B. Irby D. A. BassFrazier C. Lee Reeves William S. Starnes Anita B. Westberry Sharon A. Johnston Matthew Bauer Sandra B. Reiss P. Russell Steen James H. Wettermark Walter Kelley P. Kent Baxley Edward E. Reynolds Mark A. Stephens John F. Whitaker Joan Marie Kettel-Dean Ryan E. Baya Lynn Reynolds James L. Stewart G. Gregory White Patrick Lamar John G. Baylor, Jr. Wade Richardson J. Dawn Stith J. Mark White Larry Marsili Robert A. Beckerle Dagmar W. Rick Garrick L. Stotser Jere F. White Doug Martinson, Jr. Paul Beckmann
The Alabama Lawyer 109 2008 Pro Bono Honor Roll
Billy C. Bedsole Lisa Clayton Barre C. Dumas William C. Grayson David Michael Huggins Kim Bell William Clifford, III Douglas K. Dunning Jon A. Green W. Gregory Hughes John T. Bender James Paul Clinton Robert S. Edington J. David Greene Christopher G. Hume, III Thomas H. Benton, Jr. Robert E. Clute, Jr. Grady R. Edmondson Theodore L. Greenspan John Michael Hunter Russell E. Bergstrom Harwell E. Coale, Jr. Mark P. Eiland Irvin Grodsky Scott W. Hunter Jaime W. Betbeze Trey Coale William Thomas Eiland Timothy M. Grogan Willie J. Huntley, Jr. Windy Cockrell Bitzer Wanda J. Cochran C. Mark Erwin Roger C. Guilian Harvey A. Hutchinson, III Wesley H. Blacksher F. Luke Coley, Jr. Tamela E. Esham Virginia W. Haas Herndon Inge, III William Blanton Danny J. Collier, Jr. Michael T. Estep Robert L. Hagler, Jr. Herndon Inge, Jr. Edward C. Blount, Jr. Celia J. Collins Christopher B. Estes Jason K. Hagmaier Joe Isbell Christina M. Bolin Gregory S. Combs Cheryl D. Eubanks Carter R. Hale Brandon D. Jackson Thomas R. Boller Bryan Comer J. Gregory Evans Lee L. Hale, Sr. J. Walton Jackson R. Preston Bolt, Jr. L. Hunter Compton, Jr. Jim H. Fernandez Patricia W. Hall Robert G. Jackson, Jr. C. Britton Bonner David S. Conrad Gary W. Fillingim Theodore L. Hall Sidney W. Jackson, III Kate Bonnici Walter M. Cook, Jr. Douglas W. Fink W. Perry Hall William B. Jackson II John Wayne Boone Angela M. Cooper George W. Finkbohner, Jr. Lawrence J. Hallett, Jr. Alicia M. Jacob Knox Boteler Lisa Darnley Cooper George W. Finkbohner, III David A. Hamby, Jr. Ishmael Jaffree Edward G. Bowron Keri R. Coumanis Patrick Finnegan Jubal Hamil Jack F. Janecky Ashley BrackinBonner Braxton C. Counts, III P. Gray Finney, III William Craig Hamilton Joy A. Jaye Marc E. Bradley J. P. Courtney, III Charles J. Fleming Katie L. Hammett Linda Collins Jensen Kasie M. Braswell Andrew J. Crane Erin Fleming Neil L. Hanley Candace D. Johnson Henry H. Brewster J. Randall Crane Timothy W. Fleming Daniel A. Hannan James A. Johnson Donald M. Briskman Robert J. Crane Ben Ford Michael J. Harbin Richard B. Johnson Britten Britt Stephen G. Crawford Marcus T. Foxx Sidney M. Harrell, Jr. James C. Johnston W. Benjamin Broadwater Eric Cromwell Keith B. Franklin Alvin F. Harris Neil C. Johnston G. Porter Brock, Jr. John T. Crowder Ross Frazer Ashley S. Harris Vivian G. Johnston, Jr. James D. Brooks Aurelius Evans Crowe Andrew Freeman Thomas E. Harrison Vivian G. Johnston, III David P. Broome John J. Crowley, Jr. Carl E. Freman Jeffrey J. Hartley Andrew M. Jones Chad Robert Brown Blane H. Crutchfield Donald A. Friedlander J. Stephen Harvey Gregory R. Jones Douglas L. Brown Manley L. Cummins, III Gregory M. Friedlander Peter Havas Joe Carl Jordan Joseph Allan Brown William M. Cunningham, Jr. Nathan Friedlander Edward G. Hawkins Shirley M. Justice Paul D. Brown James G. Curenton, Jr. Barry A. Friedman Wilson M. Hawkins, Jr. Cecily L. Kaffer Toby D. Brown Edwin J. Curran, Jr. Sarah S. Frierson Jeffry Alan Head Kathleen Cobb Kaufman Gregory P. Bru Dan S. Cushing Richard W. Fuquay Robert J. Hedge Kyla Kelim Melvin W. Brunson M. Stephen Dampier Richard M. Gaal Benjamin Connel Heinz Colin E. Kemmerly Donald E. Brutkiewicz, Jr. Glenn L. Davidson Michael E. Gabel Frederick G. Helmsing, Jr. Christopher Kern John C. Brutkiewicz Michael M. Davis Ginger P. Gaddy Frederick G. Helmsing Benjamin H. Kilborn, Jr. Neal A. Buchman Norman H. Davis, Jr. P. Vincent Gaddy Deborah B. Hembree Fred W. Killion, III Gregory C. Buffalow Ronald P. Davis Thomas O. Gaillard, III Alison B. Herlihy Fred W. Killion, Jr. Russell C. Buffkin Brent T. Day Jeffry N. Gale Warren C. Herlong, Jr. James W. Killion Peter F. Burns Edward A. Dean Norman J. Gale, Jr. Brenda D. Hetrick James E. Kimbrough, Jr. M. Warren Butler T. Jefferson Deen, III Robert M. Galloway R. Scott Hetrick William A. Kimbrough, Jr. Henry H. Caddell Mignon M. DeLashmet William J. Gamble, Jr. Charles A. Hicks Rick O. Kingrea Jennifer Caldwell Robert P. Denniston Jonathan P. Gardberg Lucian B. Hodges Richard M. Kirkpatrick Henry A. Callaway, III Scott E. Denson J. Cecil Gardner Michael R. Holberg Stephen L. Klimjack Ashley E. Cameron Ross M. Diamond, III J. Marshall Gardner Jennifer Holifield Michael D. Knight Craig Campbell April Dodd Thomas F. Garth Lyman F. Holland, Jr. Dennis J. Knizley Robert C. Campbell, III Charles H. Dodson, Jr. Ian F. Gaston Frances H. Hollinger H. James Koch Kenneth Paul Carbo, Jr. Carolyn M. Dohn Christopher L. George Ryan P. Holloway Frank H. Kruse Lois Carney John W. Donald, Jr. John D. Gibbons W. Steele Holman II Joseph O. Kulakowski Jerome C. Carter William A. Donaldson Christopher M. Gill Broox G. Holmes Banks C. Ladd J. Gregory Carwie Richard T. Dorman W. Michael Gillion Richard H. Holston Mary Carol Ladd William J. Casey Thomas P. Doyle Walter T. Gilmer, Jr. D. Charles Holtz Gilbert B. Laden K. W. Michael Chambers William M. Doyle Esquire William B. Givhan Richard D. Horne Paul V. Lagarde Walter G. Chavers B. Vaughan Drinkard, Jr. J. W. Goodloe, Jr. David A. Horton R. Edwin Lamberth C. S. Chiepalich J. Michael Druhan, Jr. Allen E. Graham J. Gordon House, Jr. James W. Lampkin II Jennifer P. Clark Bryan G. Duhe’ Duane A. Graham Stewart L. Howard William R. Lancaster Andrew C. Clausen Cullan B. Duke Missty C. Gray Victor T. Hudson II Johnny Lane J. Calvin Clay John T. Dukes Lori Grayson Michael G. Huey Clay Lanham
110 March 2009 2008 Pro Bono Honor Roll
Alex F. Lankford, IV Michael S. McNair Peter J. Palughi, Jr. James B. Rossler Molly M. Sullivan This Honor Roll Alex F. Lankford, III J. Bart McNiel Frank L. Parker, Jr. Beth M. Rouse James W. Tarlton, III reflects our efforts to Oliver J. Latour, Jr. Kent Dyer McPhail Harold D. Parkman Robert H. Rouse Jeremy P. Taylor Forrest S. Latta Coleman F. Meador Melinda J. Parks Edward P. Rowan Richard H. Taylor gather the names of John L. Lawler Augustine Meaher, III James T. Patterson Benjamen T. Rowe Shane A. Taylor those who participate John N. Leach, Jr. Bill C. Messick James Donnie Patterson Andrew J. Rutens Stacie F. Taylor Goodman G. Ledyard S. C. Middlebrooks Tommy W. Patterson Elias J. Saad R. Stevens Terry in organized pro bono Steven L. Terry Beth Lee Adam M. Milam J. Day Peake, III William H. Saliba Bryan A. Thames programs. If we have John V. Lee Christopher R. Miller Patrick K. Pendleton Harry V. Satterwhite Joseph D. Thetford Tracie Lee-Roberson Jason D. Miller R. Jeffrey Perloff Richard S. Sawyer omitted the name of Richard L. Thiry J. Stephen Legg Jeffrey G. Miller R. John Perry Steven Sciple Stacey L. Thomas any attorney who Francis E. Leon, Jr. M. Kathleen Miller Christopher E. Peters James D. Sears Barry L. Thompson Melissa Lindquist-King Margaret Miller E. Larkin Peters John W. Sharbrough, III Ray M. Thompson participates in an James Loris, Jr. Brooks P. Milling Abram L. Philips, Jr. Thomas E. Sharp, III Cooper C. Thurber organized pro bono Victor H. Lott, Jr. Pamela K. Millsaps Will G. Phillips Clifford C. Sharpe Edward R. Tibbetts Y. D. Lott, Jr. L. Daniel Mims Brenda J. Pierce Kirk C. Shaw William C. Tidwell, III program, please send Darlett Lucy-Dawson Jonathan Minchin Wendy A. Pierce Bob Sherling, Jr. Desmond V. Tobias that name and address T. Ryan Luna Joseph J. Minus, Jr. Virginia Pike Michael D. Sherman Desmond B. Toler Jeffrey L. Luther Robert L. Mitchell Mary E. Pilcher Richard E. Shields J. Robert Turnipseed to: Alabama State Bar Maria Lynda Lyles Michael A. Montgomery J. Jerry Pilgrim Jonathan E. Sholtis Deena R. Tyler Volunteer Lawyers William M. Lyon, Jr. J. Richard Moore J. Casey Pipes Vanessa Arnold Shoots John M. Tyson, Sr. Peter S. Mackey Pamela A. Moore S. Wesley Pipes V William E. Shreve, Jr. G. Hamp Uzzelle, III Program. P. O. Box Pete J. Vallas Arthur J. Madden, III Stephen C. Moore William E. Pipkin, Jr. Franklin L. Shuford, Jr. 671, Montgomery, Melinda Lee Maddox Larry C. Moorer Patricia J. Ponder Patrick H. Sims Lawrence B. Voit Todd C. Mallette Jack W. Morgan William C. Poole William H. Sisson James B. Vollmer AL 36101. Richard W. Vollmer, III David Maloney Jennifer S. Morgan Charles J. Potts Jack Smalley, III George M. Walker E. Russell March, III Henry T. Morrissette Susan L. Potts Amy B. Smith Thomas B. Walsh Chad C. Marchand W. Alexander Moseley Arthur T. Powell, III Brad Smith Ernest Eugene Warhurst, Jr. Beth Marietta-Lyons Clifton Mosteller Glen Powers II Edward L. D. Smith Harold William Wasden Michael E. Mark T. Julian Motes Jean M. Powers Fran Jones Smith LeBreon S. Washington L. A. Marsal Robert H. Mudd, Jr. Barry C. Prine Frankie Fields Smith William W. Watts, III Craig D. Martin D. Brian Murphy Caroline T. Pryor Jason D. Smith Leslie G. Weeks Steven A. Martino Michael T. Murphy Marion A. Quina, Jr. Selma D. L. Smith Lawrence M. Wettermark R. Edward Massey, Jr. Jennifer Murray David R. Quittmeyer Susan Gunnells Smith A. Holmes Whiddon, Jr. R. Edward Massey, III Paul Bradley Murray L. Bratton Rainey, III Hendrik Snow Jarrod J. White Kevin F. Masterson P. Russell Myles Julie H. Ralph Mary Elizabeth Snow John L. White Joseph M. Matranga Paul D. Myrick Robert S. Ramsey Domingo Soto J. George Whitfield, Jr. Robert C. Matthews Meegan Nelson A. Clay Rankin, III Scott W. Soutullo David J. Wible Thomas R. McAlpine Mark A. Newell James Rebarchak Mark E. Spear C. Richard Wilkins Gregory B. McAtee James B. Newman F. Grey Redditt, Jr. Jon M. Spechalske Anna M. Williams Brian P. McCarthy Frances R. Niccolai Mark L. Redditt Jerome E. Speegle Margaret Y. Williams Daniel L. McCleave Steven L. Nicholas William H. Reece John Ronald Spencer Richard R. Williams Jacqueline M. McConaha Michael C. Niemeyer Gabrielle Reeves Leon F. Stamp, Jr. Ronnie L. Williams Adam T. Williamson Lynn McConnell David A. Nihart W. Boyd Reeves Chandler K. Stanard Teresa Williamson Jason S. McCormick Peggy R. Nikolakis Elizabeth D. Rehm Joseph D. Steadman Charles S. Willoughby Douglas L. McCoy Jason B. Nimmer Kirkland E. Reid Mary Steele J. Charles Wilson Marcus E. McCrory John R. Nix T. Dwight Reid Gregory B. Stein Michael P. Windom James H. McDonald, Jr. Ken A. Nixon Eric B. Reuss T. Jeff Stein Michael A. Wing Matthew C. McDonald Ryan T. Northrup Robert Riccio Donald J. Stewart Mark C. Wolfe Edward B. McDonough, Jr. Louis C. Norvell Kenneth J. Riemer Louisa L. Stockman Thomas M. Wood Marcus E. McDowell Thomas Michael O’Hara J. Burruss Riis Norman M. Stockman Ricardo Woods Stova F. McFadden Caine O’Rear, III James V. Roberts, Jr. Samuel L. Stockman James A. Yance William S. McFadden Sonya Ogletree Edward Luckett Robinson II Bruce B. Stone, Sr. Richard D. Yelverton Katherine M. McGinley Rudene C. Oldenburg Thomas M. Rockwell Margaret A. Stone Jay A. York Robert B. McGinley, Jr. Thomas P. Ollinger, Jr. William C. Roedder, Jr. Sheila V. Stone James William Zeigler W. Chris McGough Mary Elizabeth Olsen Jannea S. Rogers Brandon Strickland Thomas T. Zieman, Jr. Deborah D. McGowin Juan Ortega Derek S. C. Rose Todd S. Strohmeyer Alex W. Zoghby William T. McGowin, IV Brandy B. Osborne Ian Rosenthal Carroll H. Sullivan George M. Zoghby Robert B. McLaughlin Terrie Owens Jay M. Ross Joseph R. Sullivan ▲▼▲
The Alabama Lawyer 111 Book Review By Bobby Segall
Jim Crow and Me, Stories from my life as a civil rights lawyer
By Solomon S. Seay, Jr.
’m not actually a book reviewer. I vignettes, and they touch every aspect of have no (good) idea about how to his life–the tragic and heartbreaking, the evaluate whether a book is laudable courageous, the funny, the poignant, and I 1 literature. But, I do know what feels the thankfully hopeful. In part, I guess, right, and what moves me–what makes Jim Crow and Me is a love story. Sol lost me cry, and what makes me smile. I do Ettra almost three years ago after 53 know what inspires me and, mostly, I years of marriage. She was a revered know what is readable and keeps me early childhood teacher in Montgomery, awake and wanting to read more. Jim described by Sol as a fiercely proud Crow and Me, Stories from my life as a black woman who did not suffer discrim- civil rights lawyer, written by Solomon ination easily. Ettra and Sol shared the Seay, Jr., with Judge Delores Boyd2 does triumphs of their careers and the joys of all of that. It is, in my (unlearned) opin- their family, but also endured the heart- ion, a work of art. breaking loss to illness of two daughters. And, I read it quickly. In one day. I Sol’s poetic ode to Ettra graces his book, know that’s no big deal for most of and her name still adorns his license you–but for me, it’s huge. I’m sort of a plate. She’s still with him. I think she book-on-tape (my wife says, illiterate) racial injustice. Rev. Seay’s example was always will be. kind of guy. But this book grabbed me. one of quiet, yet firm, dignity. He was a Civil rights, of course, were, and are, And, it never let go. role model for MLK, Jr. and for many oth- more than a career objective for Sol. Like As you’ve likely guessed by now, the ers, including his son. On one occasion his wife, he took race discrimination per- book’s about Solomon Seay, Jr. or, more recounted in the book, Rev. Seay boldly, sonally, and several of the anecdotes in his accurately, about his experiences fighting but politely, demanded (and received) his book describe, sometimes intensely, and racial discrimination in Alabama. Sol is money back from a white ticket-taker at the other times more lightheartedly, his historic. He is a person for the ages. And, circus who had rudely declined to put responses to it. One example involves the he’s a member of the Alabama State Bar. change for the ticket price in Rev. Seay’s Elite Café, a favorite lunch and nighttime He became a member when there were hand. Little Sol was watching. His father spot for Montgomery’s legal, business and only ten black lawyers in the state. was an inspiration. political communities. On the very day The book begins with Sol’s inspiration. I Another inspiration was a junior high Lyndon Johnson signed into law the Civil actually believe he was born to be a civil school teacher who implored her students Rights Act of 1964, Sol, Ettra and two of rights lawyer. Those qualities are in his to seek justice and made plain that jus- their three young children dined there. blood.3 He came from a proud, well-edu- tice often flowed only to those who had They had to wait to be served. The propri- cated and activist family. His mother was a the guts to grab it. Sol listened to his etor said he would serve them the very school teacher, and his father, Reverend teacher. He heard her. He became a civil minute the president signed the civil rights Solomon Seay, Sr., was a founding mem- rights lawyer. bill into law, and not a minute sooner. ber, and later president, of the Montgomery And, these are his stories–accumulated When that minute passed, according to Improvement Association, a peaceful over the course of his career. They are Sol, the service and food exceeded all organization that stood unyieldingly against beautifully organized into short, compelling expectations.
112 March 2009 No slight was too big or too small for in May 1961, his friendly and familiar beaten at Montgomery’s Greyhound Bus Station. Sol to react. When then-Governor John personality eased tensions during a time Judge Boyd, while growing up, worked in Dr. Wilson’s Patterson refused to renew Sol’s notary of mounting violence and martial law. office i public license, Sol sued in federal court. When Sol, who, along with Fred, repre- 4. Judge Johnson served on the United States District Court for the Middle District of Alabama for 24 years And, he persisted even when Judge Frank sented everyone who was arrested, and then served another 20 on the U.S. Courts of M. Johnson, Jr. urged him to concentrate picked up Rev. Ralph Abernathy from a Appeals for the 5th and 11th circuits. Solomon Seay on more serious violations of law.4 Sol also stay in the county jail, the sheriff interacted with Judge Johnson, both on and off the sued the Alabama State Bar when Ettra remarked that Sol, who had been practi- bench, for most of Judge Johnson’s service. In Jim was excluded from a spouses’ function at cally living at his office, looked like the Crow and Me, Sol says, “Judge Johnson’s opinion mattered to me. Without his courageous court an annual meeting. When the restaurant one who had been incarcerated. One decrees in the 1960s and 1970s, the civil rights inside the Camden Motel in Wilcox night the sheriff drove Fred to buy movement simply would not have defeated Jim Crow County refused to serve Sol lunch, he sued. snacks for folks in custody while Sol in Alabama. I admired and respected him greatly.” Despite his contagious charm, Sol simply busily took statements. The sheriff tried That respect did not always translate into Sol’s refused to accept bleep from anyone. to protect everyone from violence and agreeing with the judge. The notary case is an exam- ple. In urging Sol to drop the case, the judge told But mostly, of course, Sol devoted his was generally civil and courteous. him, “if you are going to be on the forefront in fight- career to others. Along with his close I could go on, but I think you get the ing for equal rights, there are some things you just friend and one-time law partner, Fred picture.7 The book’s great. Its use of lan- tolerate, and you stay the course.” Sol stayed the Gray, Sol handled (I suspect) more race guage is captivating.8 Its stories are pow- course, but he didn’t drop the notary case. discrimination cases than any other erful. Solomon Seay, Jr. is someone you Although Judge Johnson greatly respected and liked Sol, he showed no favoritism. The book lawyer in the United States, and he prob- want to know–and even more so after describes an occasion when, due to a miscommuni- ably was more successful in such cases reading his book. Jim Crow and Me, I cation caused by an assistant U.S. Attorney, Sol did than anyone you know. There was no believe, captures the essence of this thor- not appear in court for a docket call. The judge limit to the kind of cases he oughly delightful, charming and complex directed a United States Marshall to bring Sol before handled–school desegregation, employ- man. But, it leaves you wanting to know the bench. When found, Sol was plowing in combat boots, dusty fatigues and a skivvy shirt, but the mar- ment discrimination, jury discrimination, more. shall gave him no time to dress before taking him to 9 voting discrimination, criminal cases, I feel personally blessed –because I’ve court. Luckily for Sol, the assistant U.S. Attorney took and more. It’s all in the book. known Sol and Delores for a long time. I the heat for the misunderstanding, and the judge told And, at the time Sol began his fight for know the commitment–and the heart and Sol he could get back to plowing. civil rights in Alabama in the 1950s, his the skill–that went into Sol’s civil rights 5. For you older lawyers, Judge Thagard was the father was not a safe occupation. On one occa- practice, and I know the talent and hard of Tommy Thagard, an excellent lawyer with Balch & sion, his dad took a bullet (thankfully a work and the devotion (both to Sol and Bingham. For you more modestly aged lawyers, Judge Thagard was the grandfather of Maynard flesh wound) intended for Sol. Sol court- his work) that motivated Delores to help Cooper’s Tom Thagard. ed danger. He litigated in many centers Sol record for us, and for our children, 6. Sheriff Butler was the father of (who I like to call) of Klan activity, and sometimes the law some of his experiences and good works. the fabulous Butler boys, Phil of Bradley Arant and Al was hard to distinguish from the Klan. You should read it–not only because you of the Alabama Department of Corrections legal Still, there are bright spots in Sol’s sto- just should, but also because I believe staff. ries–and some of them are white. Judge you will be proud that these folks are 7. Also, Robert Huffaker says I’m too wordy. T. Werth Thagard is an example. Judge Alabama lawyers. ▲▼▲ 8. I also love its footnotes. Thagard5 was circuit court judge in 9. I guess I don’t feel so much actually blessed as just Butler County when Sol defended a plain lucky. But Sam Crosby is always sayng he feels Endnotes blessed, and it sounds good. So, I thought I would try it. black capital murder defendant before an 1. I am, however, familiar with alliteration. all-white jury. Sol was the first black 10. Nor has he met a meaner woman than Margaret 2. Judge Boyd was an exceptional lawyer in Murphy, the managing editor of The Alabama Lawyer. lawyer to represent anyone in that court. Montgomery before her elevation to the Bench. After Not only did Judge Thagard extend Sol graduating from Virginia Law School and clerking for every professional courtesy, but also he Judge John Godbold on the U.S. Court of Appeals, put a forceful end to harassing traffic she practiced for many years with Howard Mandell, stops Sol endured every day of the trial. forming a (pretty unusual for the time) mixed-race law firm. Together, Delores and Howard sued Bobby Segall prac- In what Sol describes as the act of an Alabama State University for reverse employment “upright, fearless, and honorable” man, discrimination in a landmark case defended by, of all tices with Copeland Judge Thagard threatened contempt for people, Solomon Seay, Jr. Delores and Howard won. Franco Screws & Gill the police chief and jail for the offending Judge Boyd served remarkably well as a United and has done so officer if the harassment did not end States Magistrate Judge, and would have been, and longer than most of may still be, a great federal district court judge, and you have been alive. immediately. It did. an even better federal appellate court judge. 6 In all those years, Mac Sim Butler, the then- 3. Those qualities were in his sister’s blood, too. he’s never met finer Montgomery County Sheriff, was also a Hagalyn Seay Wilson was a doctor who, oblivious to bright spot. Although he arrested her own safety, rushed to the scene of ongoing rioting lawyers than Solomon Freedom Riders and other demonstrators to provide medical care to Freedom Riders savagely Seay, Jr. and Judge Delores Boyd.10
The Alabama Lawyer 113 114 March 2009 The Role of Amicus Briefs
By Ed R. Haden and Kelly Fitzgerald Pate
ost lawyers are familiar with Cir. 2003), Judge Posner set out, as he the phrase “friend of the had done before,3 this restrictive M court” and its Latin version approach. The decision to allow amicus “amicus curiae.” Traditionally, the term curiae briefs is one left solely to the was used to describe an independent, court’s discretion.4 Under this discre- neutral brief-writer1 “who, for the benefit tionary view, Judge Posner noted that the and assistance of the court, informs it on court will, accordingly, “not grant rote some matter of law with regard to which permission to file such a brief.” This is the court may be doubtful or mistaken.”2 particularly true when the briefs are The role of the amicus, however, has duplicative of the parties’ arguments. changed. Today, amici are rarely wholly This policy was supported by the follow- independent from or neutral to the litiga- ing reasons: tion in which they seek to have a say. Indeed, an interest in the litigation is one [J]udges have heavy caseloads and of the key factors used to determine therefore need to minimize extrane- whether an amicus curiae brief will be ous reading; amicus briefs, often allowed. This change in the status of solicited by parties, may be used to amici has fostered divergent views on the make an end run around court- need for and efficacy of this practice. imposed limitations on the length of parties’ briefs; the time and other Posner-Alito Dispute resources required for the prepara- Judge Posner, the often-cited Seventh tion and study of, and response to, Circuit Court of Appeals judge, has amicus briefs drive up the cost of strongly advocated for a restricted litigation; and the filing of an ami- approach to allowing amicus curiae cus brief is often an attempt to briefs. In Voices for Choices v. Illinois inject interest group politics into Bell Telephone Co., 339 F.3d 542 (7th the federal appeals process.
The Alabama Lawyer 115 Based on these reasons, Judge Posner listed criteria on which the 29 are the requirements of “(a) an adequate interest, (b) desir- decision to allow the filing of amicus briefs should be based: ability, and (c) relevance.” “whether the brief will assist the judges by presenting ideas, argu- Judge Alito explained that under modern practice instead of ments, theories, insights, facts, or data that are not to be found in being impartial and having no pecuniary interests, an amicus is the parties’ briefs.” This criterion would more likely be met, required to have an interest in the case: according to the court, when “a party is inadequately I begin with the appellants’ argument that an represented; or . . . the would-be amicus has a amicus must be “an impartial individual who direct interest in another case that may be mate- suggests the interpretation and status of rially affected by a decision in this case; or . . . the law, gives information concerning it, the amicus has a unique perspective or spe- …the brief and whose function is to advise in cific information that can assist the court will assist the judges order that justice may be done, rather beyond what the parties can provide.” than to advocate a point of view so Under this rationale, the court denied the by presenting ideas, that a cause may be won by one motions for leave to file the amicus arguments, theories, party or another.” Opp. at 3-4. This briefs finding that while the briefs description of the role of an amicus included additional case citations and insights, facts, or data was once accurate and still appears “slightly more analysis on some in certain sources, see 3A C.J.S. points[,]” they were essentially briefs that that are not to be Amicus Curiae § 2 at 422-23 (1973), duplicated arguments of the parties and found in the but this description became outdated “announce[d] the ‘vote’ of the amici on the long ago. See Samuel Krislov, “The decision of the appeal.” parties’ briefs. Amicus Curiae Brief: From Friendship to In contrast to the above restrictive approach, Advocacy,” 72 Yale L.J. 694, 703 (1962). then-Judge Alito, who chaired the Advisory Committee on the Appellate Rules, espoused a more Today, as noted, Rule 29 requires that an amicus open, practical approach to allowing amicus curiae briefs in have an “interest” in the case, see Fed. R. App. Proc. Neonatology Associates v. Commissioner of Internal Revenue, 29(b)(1) and (c)(3), and the appellants’ argument that an 293 F.3d 128 (3d Cir. 2002). Examining Rule 29 of the Federal amicus must be “impartial” is difficult to square with this Rules of Appellate Procedure, the court noted that a broad reading requirement. An accepted definition of the term “impartial” is appropriate.5 According to Judge Alito, implicit within Rule is “disinterested,” Black’s Law Dictionary 752 (6th ed. 1990),
116 March 2009 and it is not easy to envisage an amicus who is “disinter- With regard to desirability, Judge Alito rejected the notion that ested” but still has an “interest” in the case. amicus briefs are to be allowed only when the party to be support- ed is unrepresented or inadequately represented, as this approach . . . . could deprive the court of valuable submissions. He stated: The appellants suggest, however, that the very term “ami- I also disagree with the appellants’ argument that an cus curiae” suggests a degree of impartiality. The amicus seeking leave to file must show that the appellants quote the comment that “[t]he term party to be supported is either unrepresented ‘amicus curiae’ means friend of the court, or inadequately represented. Rule 29 does not friend of a party.” Opp. at 3 (quoting not contain any such provision . . . . Ryan, 125 F.3d at 1063). The implica- The argument tion of this statement seems to be Even when a party is very well rep- that a strong advocate cannot truly that an amicus cannot resented, an amicus may provide be the court’s friend. But this sug- be a person who has important assistance to the court. gestion is contrary to the funda- Some amicus briefs collect back- mental assumption of our adver- “a pecuniary interest in ground or factual references that sary system that strong (but fair) the outcome” also flies merit judicial notice. Some friends advocacy on behalf of opposing of the court are entities with partic- views promotes sound decision- in the face of current ular expertise not possessed by any making. Thus, an amicus who makes party to the case. Others argue points a strong but responsible presentation in appellate practice. deemed too far-reaching for emphasis support of a party can truly serve as the by a party intent on winning a particular court’s friend. case. Still others explain the impact a potential holding might have on an industry or The argument that an amicus cannot be a person other group. who has “a pecuniary interest in the outcome” also flies in the face of current appellate practice. A quick look at . . . . Supreme Court opinions discloses that corporations, unions, trade and professional associations and other par- The criterion of desirability set out in Rule 29(b)(2) is ties with “pecuniary” interests appear regularly as amici. open-ended, but a broad reading is prudent. The decision
The Alabama Lawyer 117 whether to grant leave to file must be made at a relatively to the briefs in its decisions.8 Similarly, the Alabama Supreme early stage of the appeal. It is often difficult at that point Court accepts and relies on amicus curiae briefs regularly.9 to tell with any accuracy if a proposed amicus filing will While the Eleventh Circuit Court of Appeals does not have a be helpful. . . . Under these circumstances, it is preferable line of jurisprudence detailing or giving insight to its approach to err on the side of granting leave. regarding amicus briefs, from a practitioner’s point of view the Court appears to have a more restrictive approach to allowing Relevance requires that the amicus deal with an issue that has amicus curiae briefs.10 been raised by the party who is supported. However, As a general matter, helpful amicus briefs should the relevance factor typically does not create an be allowed. An unhelpful brief is one that is obstacle because the waiver rule generally long, simply duplicates one or more of the bars an amicus from raising an argument arguments of a party or argues political 6 not raised in a party’s brief. points more appropriately reserved for Under Judge Alito’s approach the An unhelpful brief the legislature. In contrast, a helpful merits panel is given the opportunity is one that is long, amicus brief, which should be to disregard a brief that may turn out allowed, is one that is short, focuses to be unhelpful while not being simply duplicates one simply and briefly on the key deci- deprived of a potentially useful sion point(s) and: brief.7 Judge Alito rejected the argu- or more of the ment that a restrictive approach to arguments of a party • gives the practical effect of a allowing amicus briefs is more pro- decision on the broader legal tective of the court’s time and or argues political scheme at issue; lessens its workload. The open points more appropri- • demonstrates how the underlying approach to amicus briefs thus pro- factual process or business works; vides that “motions for leave to file ami- ately reserved for the cus briefs [should be granted] unless it is legislature. • explains how the sought-after obvious that the proposed briefs do not meet rule/decision would affect interests not Rule 29’s criteria as broadly interpreted.” Id. explained by the parties’ briefs; or The interplay between the old Posner view and the new Alito view can be very useful. For example, counsel • more fully develops the legal analysis for an argu- 11 for Southern Nuclear Operating Company sought to file an ami- ment raised in a party’s brief. cus brief in the federal circuit in Pacific Gas and Electric Co. v. Allowing helpful amicus briefs will not waste judicial United States, No. 07-5046 (Fed. Cir.). The Department of Justice resources or unnecessarily raise the costs of litigation. In fact, opposed the motion for leave to file, citing the Posner view. On allowing helpful amicus briefs may help reduce costs by culling reply, Southern Nuclear’s counsel cited Alito’s view based on the the unnecessary and unintended effects a particular decision current text of the appellate rules. The federal circuit, which had may have on other litigation and issues. An approach to amicus been restrictive in allowing amicus briefs to be filed in the past, briefs that is over-inclusive gives the ultimate decision-making granted Southern Nuclear’s motion for leave to file the amicus. judges the ability to review, rely on or disregard an amicus brief as they deem appropriate at the time that the case and issues are When Friends Should Be Allowed being closely scrutinized. Amicus briefs that meet the criteria The United States Supreme Court traditionally has had an can result in a more informed decision process for the courts open approach to allowing amicus curiae briefs and often cites and better opinions for the bar. ▲▼▲
118 March 2009 Endnotes 1. See Comment, The Amicus Curiae, 55 Nw. U. L. Rev. 469 n.3 (1960); 23 James Wm. Moore, et al., Moore’s Ed R. Haden is a partner in the Birmingham office of Balch & Bingham Federal Practice § 537 App. 100 (3d ed. 2007) LLP and chairs the appellate practice group. His practice focuses on (“Originally, the amicus curiae was, indeed, the appellate litigation. Haden has served as chief counsel of the Courts friend and counselor of the court. Courts appointed Subcommittee for Senator Jeff Sessions, clerked for the Hon. E. Grady lawyers to assist them, and the lawyer was the ami- Jolly of the U.S. Court of Appeals for the Fifth Circuit and served as staff cus, not a client whom the lawyer represented.”). attorney for the Hon. Harold See of the Supreme Court of Alabama. 2. Moore’s Federal Practice § 329.11 (3d Ed. 2007). Haden is a graduate of the University of Alabama (B.S., 1985 and M.T.A., 1986) and Washington & Lee University School of Law (J.D., 3. Nat’l Org. for Women v. Scheidler, 223 F.3d 615 (7th magna cum laude, 1993). Cir. 2000) (Posner, C.J.); Ryan v. CFTC, 125 F.3d 1062 (7th Cir. 1997) (Posner, C.J.).
4. Voices for Choices, 339 F.3d at 544. Kelly F. Pate is an associate in the Montgomery office of Balch & 5. Neonatology Assoc., 293 F.3d at 132. Bingham LLP and is a member of the firm’s labor/employment and litiga- tion sections. Her practice focuses on general litigation, including appel- 6. See United Parcel Service, Inc. v. Mitchell, 451 U.S. late matters. Pate also advises employers on issues related to state and 56, 60, n.2, 101 S. Ct. 1559, 1563 n.2 (1981) (the federal employment laws. Prior to joining the firm, Pate served as law Supreme Court will not address issues raised by clerk to the Hon. Joel F. Dubina, U.S. Court of Appeals, Eleventh Circuit. amici that were not decided by the court of appeals She is a graduate of the University of Alabama (cum laude, 2001) and or argued by the supported party). Cumberland School of Law (magna cum laude, 2004). 7. Neonatology Assoc., 293 F.3d at 133.
8. See, e.g. Fed. Express Corp. v. Holowecki, __ U.S. __, 128 S. Ct. 1147, 1155-56 (2008) (considering amicus brief of the EEOC in case regarding a claim under the Age Discrimination in Employment Act of 1967 regarding the requirements of a “charge”); Hall St. Assocs. v. Mattel, Inc., __ U.S. __, 128 S. Ct. 1396, 1406 (2008) (noting the possible consequences of the decision as raised by the parties’ amici); Medellin v. Texas, __ U.S. __, 128 S. Ct. 1346, 1358 (2008) (citing government’s position in an earlier case articulated through its amicus brief in action regarding validity of habeas petition based on decision of International FORENSIC FINANCIAL Court of Justice and presidential memorandum). SERVICES GROUP, LLC 9. See, e.g. Ex parte Masterbrand Cabinets, Inc., 984 So. 2d 1146 (2007) (citing amicus curiae which point- Investigative accounting to ed out the legislative purpose for enacting the work- ers’ compensation schedule); Federated Mut. Ins. Co. assist you in preventing and v. Abston Petroleum, Inc., 967 So. 2d 705, 713 n. 3 detecting fraud (Ala. 2007) (citing amicus brief which pointed out that “the vast majority of courts nationwide—over 100 cases from 36 jurisdictions—have upheld and Forensic accounting services, enforced pollution-exclusion clauses like the one at litigation support, internal issue here, which bar coverage for harms caused by exposure to a variety of pollutants”); Fike v. Peace, controls review and 964 So. 2d 651, 661 (Ala. 2007) (agreeing with point implementation, training made in amicus brief filed by the Alabama Defense Lawyers Association). Ned Egbert, CPA, CFE 10. The Eleventh Circuit has, on occasion, characterized Mac McCawley, CPA, CFE an amicus as a friend of a party instead of a friend of the court. See Sierra Club v. TVA, 430 F.3d 1337, Linda Steele, CGFO, CFE 1348 (11th Cir. 2005) (“TVA, joined by its friend the State of Alabama, contends that increasing the Certified Fraud Examiners effectiveness of enforcement increases the strin- gency of any standard that is being enforced.”) 251-928-0339 (emphasis added). [email protected] 11. More fully developing an argument raised by a party Mobile/Baldwin fulfills the relevance factor Judge Alito described. Neonatology Assoc., 293 F.3d at 131. www.protectfromfraud.com
The Alabama Lawyer 119 These days, a removing defendant must have all of its ducks in a row in order to successfully remove a case.
120 March 2009 Removal under Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007), cert. denied sub nom. Hanna Steel Corp. v. Lowery, — U.S. —, 128 S. Ct. 2877, — L. Ed. 2d — (2008)
By J. Brannon Maner s most practitioners are aware, MS Dealer Serv. Corp., 77 F.3d 1353, proper removal of an action 1356 (11th Cir. 1996) (citing 28 U.S.C. § A from Alabama state courts to 1441(a)), abrogated on other grounds by Alabama federal courts based on diversi- Cohen v. Office Depot, Inc., 204 F.3d ty jurisdiction under 28 U.S.C. § 1332 is 1069 (11th Cir. 2000). Under 28 U.S.C. not as simple as it used to be. These §§ 1331 and 1332, removal is premised days, a removing defendant must have all either on federal-question jurisdiction or of its ducks in a row in order to success- diversity jurisdiction. For the purposes of fully remove a case. The Eleventh this article, only diversity jurisdiction Circuit’s holding in Lowery v. Alabama under 28 U.S.C. § 13321 will be Power Co., 483 F.3d 1184 (11th Cir. addressed. 2007), cert. denied sub nom. Hanna Steel Federal courts may exercise diversity Corp. v. Lowery, __ U.S. __, 128 S. Ct. jurisdiction over all civil actions where 2877, __ L. Ed. 2d __ (2008), substan- the amount in controversy exceeds tially narrowed the evidence that a dis- $75,000, exclusive of interest and costs, trict court may consider in determining and the action is between citizens of dif- whether the amount in controversy ferent states. 28 U.S.C. § 1332(a), 28 exceeds the jurisdictional minimum U.S.C. § 1441(a) (“(a) Except as other- required for diversity jurisdiction. This wise expressly provided by Act of article discusses the effects of Lowery Congress, any civil action brought in a and its application by the federal courts State court of which the district courts of sitting in the state of Alabama. the United States have original jurisdic- tion, may be removed by the defendant or the defendants, to the district court of Removal– the United States for the district and divi- sion embracing the place where such action is pending. For purposes of Procedurally removal under this chapter, the citizen- “Any civil case filed in state court may ship of defendants sued under fictitious be removed by the defendant to federal names shall be disregarded.”). However, court if the case could have been brought “[b]ecause removal jurisdiction raises originally in federal court.” Tapscott v. significant federalism concerns, federal
The Alabama Lawyer 121 courts are directed to construe removal federal court determines that it is without 341 U.S. 6, 18, 71 S. Ct. 534, 95 L. Ed. strictly … [i]ndeed, all doubts about subject matter jurisdiction, the court is 702 (1951)). jurisdiction should be resolved in favor powerless to continue.” Id. at 410 (citing Generally, a notice of removal must of remand to state court.” Univ. of S. Ala. Ex parte McCardle, 74 U.S. 506, 19 L. “be filed within thirty days after the v. Am. Tobacco Co., 168 F.3d 405, 411 Ed. 264 (1868)). Otherwise, a party receipt by the defendant . . . of a copy of (11th Cir. 1999) (internal citations omit- could “work a wrongful extension of fed- the initial pleading setting forth the claim ted). “Accordingly, when a federal court eral jurisdiction and give district courts for relief upon which such action or pro- acts outside its statutory subject-matter power the Congress denied them.” ceeding is based.” 28 U.S.C. § 1446(b).2 jurisdiction, it violates the fundamental Jackson v. Seaboard Coast Line R.R., However, if a determination of jurisdic- constitutional precept of limited federal 678 F.2d 992, 1000-01 (11th Cir. 1982) tion cannot be made by the face of the power.” Id. at 409. “Simply put, once a (quoting Am. Fire & Cas. Co. v. Finn, complaint or documents attached thereto, “a notice of removal may be filed within thirty days after receipt by the defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is Do you represent a client who has received medical one which is or has become removable.” benefits, lost wages, loss of support, counseling, or Id. After removal to federal court, a party may move to remand the cause to state funeral and burial assistance from the Alabama court based on any defect in the removal, including lack of subject-matter jurisdic- Crime Victim’s Compensation Commission? tion. 28 U.S.C. § 1447(c).3 A motion to remand based on a procedural defect in the removal must be made within 30 days after the filing of the notice of removal. Id. However, “[i]f at any time before final judgment it appears that the district court lacks subject matter juris- diction, the case shall be remanded.”Id. Proving the Amount in Controversy The Eleventh Circuit has made it very clear that “in the removal context where When your client applied for benefits, a subrogation agreement damages are unspecified, the removing was signed pursuant to §15-23-14, Code of Alabama (1975). If a party bears the burden of establishing the jurisdictional amount by a preponderance crime victim received compensation benefits, an attorney suing of the evidence.” Lowery, 483 F.3d at on behalf of a crime victim must give notice to the Alabama 1208 (citing Tapscott v. MS Dealer Serv. Crime Victims’ Compensation Commission, upon filing a lawsuit Corp., 77 F.3d 1353, 1356-57 (11th Cir. on behalf of the recipient. 1996) (adopting the “preponderance of the evidence” standard after examining the various burdens of proof in different For further information, contact Kim Martin, staff attorney, factual contexts), overruled on other Alabama Crime Victims’ Compensation Commission at (334) grounds, Cohen v. Office Depot, Inc., 204 290-4420. F.3d 1069, 1072 (11th Cir. 2000). Therefore, “the removing defendant must establish the amount in controversy by ‘[t]he greater weight of the evidence, … [a] superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline fair and impartial mind to one side of the issue rather than
122 March 2009 the other.’” Lowery, 483 F.3d at 1209 than 400 plaintiffs and amending their failed to meet its burden of establishing (quoting Black’s Law Dictionary 1220 prayer for relief removing any specific federal jurisdiction because nothing in (8th ed. 2004)). While proving the monetary amount the plaintiffs were the notice of removal or the amended amount in controversy has historically claiming. Id. On July 17, 2006, defen- complaint indicated the specific amount seemed easy for most removing defen- dant Alabama Power Co. filed a notice of of damages the plaintiffs were actually dants, that is no longer the case under removal under the “mass action” provi- claiming. Id. at 1189. Alabama Power Lowery and a series of related cases. sion of the Class Action Fairness Act filed a supplement to its notice of (“CAFA”), 28 U.S.C. § 1332(d)(11), removal on August 4, 2006, stating that a. The Underlying Case of Lowery v. removing the action to the United States federal jurisdiction had been established Ala. Power Co., 483 F.3d 1184 District Court for the Northern District of because the case involved more than 100 (11th Cir. 2007), cert. denied sub nom. Hanna Steel Corp. v. Lowery, – U.S. –, 128 S. Ct. 2877, – L. Ed. …in the removal context where damages are unspecified, 2d – (2008). the removing party bears the burden of establishing the On January 24, 2003, Katie Lowery jurisdictional amount by a preponderance of the evidence. and eight other individual plaintiffs filed suit in Jefferson County Circuit Court against 12 industrial and manufacturing Alabama. Id. In its removal, Alabama persons resulting in the aggregate of plants and 120 fictitious entities for dis- Power asserted that each of the plaintiffs’ plaintiffs’ claims exceeding $5,000,000 charging particulates and gases into the claims exceeded the jurisdictional mini- even if each plaintiff’s claims were only air and ground water of Jefferson mum of $75,000, and the claims totaled valued at $12,500. Id. Alabama Power County, Alabama. Id. at 1187. Plaintiffs in excess of $5,000,000, CAFA’s mini- also argued that subject matter jurisdic- originally demanded recovery for com- mum aggregate amount in controversy tion existed because plaintiffs in recent pensatory and punitive damages of for diversity jurisdiction.4 Id. mass tort actions in Alabama had $1,250,000 per plaintiff. Id. at 1188. Plaintiffs filed a motion to remand the received either jury verdicts or settle- However, the plaintiffs later amended case to the Jefferson County Circuit ments for greater than $5,000,000. Id. In their complaint three times, adding more Court asserting that Alabama Power addition to its notice of removal,
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The Alabama Lawyer 123 Alabama Power also filed for leave to In affirming the Northern District’s the evidence” standard where the court engage in discovery, including requests remand of the case, the Eleventh Circuit has nothing before it but bare pleadings, for admission regarding plaintiff’s claims addressed four distinct issues, the two which is generally the case when a case for recovery in excess of $75,000. Id. most important of which for the purposes is removed within the first 30 days. On October 24, 2006, the district court of this article are “the applicable burden of Lowery, 483 F.3d at 1210. issued a memorandum opinion holding proof in establishing subject matter juris- We note, however, that in situa- that, as a threshold matter, it lacked juris- diction in a removed case in which dam- tions like the present one–where diction over the claims against the defen- ages are unspecified” and “what a district damages are unspecified and only dants who had been made parties prior to court may consider in reviewing the pro- the bare pleadings are available–we CAFA’s effective date. Id. at 1192. For the priety of removal that is timely challenged are at a loss as to how to meaning- remaining defendants (Alabama Power and by a motion to remand.” Lowery, 483 F.3d fully apply the preponderance bur- Filler Products), the court provided that at 1193. The court first discussed its appli- den. We have no evidence before CAFA had not changed the rule that “when cation of the “preponderance of evidence” us by which to make an informed a state court complaint is uncertain or silent standard that it specifically adopted in assessment of the amount in con- troversy. All we have are the repre- …when a state court complaint is uncertain or silent on sentations relating to jurisdiction in the amount being sought, the removing defendant under the notice of removal and the alle- gations of the plaintiffs’ third 28 U.S.C. § 1332 has the burden of proving the jurisdic- amended complaint. As such, any tional amount by a preponderance of the evidence. attempt to engage in a preponder- ance of the evidence assessment at this juncture would necessarily on the amount being sought, the removing Tapscott v. MS Dealer Service Corp., 77 amount to unabashed guesswork, defendant under 28 U.S.C. § 1332 has the F.3d at 1357. The court traced its roots of and such speculation is frowned burden of proving the jurisdictional amount the “preponderance of the evidence” stan- upon. See Lindsay v. Ala. Tel. Co., by a preponderance of the evidence.” dard back to the Supreme Court’s opinion 576 F.2d 593, 595 (5th Cir. 1978) Lowery v. Honeywell Int’l Inc., 460 F. in McNutt v. Gen. Motors Acceptance (noting, in a removed class action, Supp. 2d 1288, 1296 (N.D. Ala. 2006). The Corp. of Ind., Inc., 298 U.S. 178, 189, 56 that “it was not open for defen- district court ruled that these defendants S. Ct. 780, 785, 80 L. Ed. 1135 (1936) dants to attempt to show” the req- had not satisfied their burden to show that (“[T]he court may demand that the party uisite amount in controversy per a single plaintiff had claims in excess of alleging jurisdiction justify his allegations capita where the complaint made $75,000, or, in the alternative, that all of by a preponderance of evidence.”). insufficient allegations, “[n]or was the plaintiffs’ claims exceeded $5,000,000 Next, the court discussed the difficul- it open to the district court to spec- in the aggregate. Id. at 1297. ties of applying the “preponderance of ulate” on whether the jurisdictional facts exited). Lowery, 483 F.3d at 1210-11. Even though the Eleventh Circuit provided its criticisms of the “preponderance of the evidence” standard, it used the standard in the Lowery case in affirming the dis- trict court’s remand of the case. Id. at 1211 (“Regardless, our precedent com- pels us to continue forcing this square peg into a round hole.”). All of this begs the question: How does one show by a “preponderance of the evidence” that an amount in contro- versy exceeds $75,000 if there is no spe- cific monetary amount sought in the complaint? Prior to Lowery, Alabama cases were routinely removed based on the removing party asserting the exis- tence of more than $75,000 in controver- sy by relying on jury verdicts or settle- ments in excess of that amount in similar Alabama cases. See, e.g., Carswell v. Sears, Roebuck & Co., No. 2:06-cv- 01098-WKW, 2007 WL 1697003, *1
124 March 2009 (M.D. Ala. June 12, 2007). With Lowery, plaintiff’s complaint does not plead grounds in a case such as the one however, it is clear that those days have a specific amount], the district court before us–where the defendant, the passed. Lowery, 483 F.3d at 1220-21. has before it only the limited uni- party with the burden of proof, has “In Lowery, the Eleventh Circuit held verse of evidence available when only bare pleadings containing that when the amount in controversy is the motion to remand is filed–i.e., unspecified damages on which to based on the value of a lawsuit, the party the notice of removal and accompa- base its notice–without seriously asserting federal jurisdiction must provide nying documents. If that evidence testing the limits of compliance a document containing ‘an unambiguous is insufficient to establish that with Rule 11. statement that clearly establishes federal removal was proper or that jurisdic- Lowery, 483 F.3d at 1213-15, n. 63. In jurisdiction.’” State Farm Fire & Casualty tion was present, neither the defen- addition to the court’s reference to Rule Co. v. Knoblett, 561 F. Supp. 2d 1256, dant nor the court may speculate in 11 in Lowery, a removing defendant who 1258 (M.D. Ala. 2008) (quoting Lowery, an attempt to make up for the is unaware of or fails to comply with 483 F.3d at 1215, n. 63). Specifically, the notice’s failings. See Lindsey v. Ala. Lowery also subjects himself to the court in Lowery provided: Tel. Co., 576 F.2d 593, 595 (5th mercy of the court regarding the payment Cir. 1978) (holding that, where a Thus, under § 1446(b), in assessing of “just costs and actual expenses, complaint did not specify the num- the propriety of removal, the court including attorney fees” as a result of an ber of plaintiffs in a class action, it considers the document received by improper removal. 28 U.S.C. § 1447(c). was not open to the defendants or the defendant from the plaintiff–be Applying the court’s narrowing stan- the court to speculate that the class it the original complaint or a later dard of evidence to be considered from was small enough to establish the received paper–and determines Lowery, district courts in Alabama have minimum amount in controversy). whether that document and the ended the days of the Alabama “punitive notice of removal unambiguously … damages” general rule and the “past establish federal jurisdiction. … In We think it highly questionable precedent” rule commonly used by assessing whether removal was whether a defendant could ever file removing defendants. See, e.g., Carswell proper in such a case [where the a notice of removal on diversity v. Sears, Roebuck & Co., No. 2:06-cv-
The Alabama Lawyer 125 01098-WKW, 2007 WL 1697003, *1 When the plaintiff fails to provide a forth the factual basis for jurisdiction, as (M.D. Ala. June 12, 2007) (“District specified amount in its complaint, the well as their ethical obligation under Fed. courts in this circuit are no longer able to factual information establishing jurisdic- R. Civ. P. 11. Lowery, 483 F.3d at 1215. ‘speculate in an attempt to make up for tional amount must come from the plain- Even though post-removal jurisdictional the notice’s failings,’ nor are the courts tiff, not the defendant. Lowery, 483 F.3d discovery was once considered as a able to consider ‘evidence regarding the at n. 66. By eliminating the “punitive viable option for a court examining its value of other tort claims.’”); Constant v. damages” rule and “past precedent” rule, jurisdiction, “[s]ound policy and notions Int’l House of Pancakes, Inc., 487 F. Lowery has given the plaintiff, as the of judicial economy and fairness … dic- Supp. 2d 1308 (N.D. Ala. 2007) (remand- drafter of the original complaint, the tate that we not follow this course.” Id. at ing the case and stating that “the day of power to generally prohibit removal 1216. “The court should not reserve a knee-jerk removal of diversity tort cases within the first 30 days if a specified ruling on a motion to remand in order to from state to federal court within the three amount in excess of $75,000 is not allow the defendant to discover the (3) states comprising the 11th Circuit came included. potential factual basis of jurisdiction. to an end on April 11, 2007, when Lowery Such fishing expeditions would clog the v. Alabama Power Co., 483 F.3d 1184 federal judicial machinery, frustrating the (11th Cir. 2007), was decided.”); Howell v. limited nature of federal jurisdiction by Fields Realty, LLC, No. 2:08-cv-492- Discovery encouraging defendants to remove, at WKW, 2008 WL 2705383, *2 (M.D. Ala. In cases where an unspecified amount best, prematurely, and at worst, in cases July 10, 2008) (remanding a personal is pled in the complaint, is there any which they will never be able to establish injury case and stating “a demand for chance to remove under 28 U.S.C. §§ jurisdiction.” Id. at 1217. punitive damages is insufficient to satisfy 1332, 1441 and 1446 based on the In reaching this conclusion, the court the amount in controversy requirement.”); removing party including jurisdictional relied, by analogy, on the prohibition of Johnson v. Ansell Protective Products, No. discovery with its notice of removal? allowing jurisdictional discovery had the CA 08-0394-CG-C, 2008 WL 4493588, The Eleventh Circuit held that allow- plaintiff originally brought the case in *7 (S.D. Ala. Oct. 2, 2008) (remanding a ing jurisdictional discovery to go forward federal court and was facing a motion to combined product liability and worker’s while the case is pending in the federal dismiss for lack of subject matter juris- compensation action where the removing district court was not an option in diction. Id. at 1216. By filing an action in defendant relied on expected punitive Lowery. Lowery, 483 F.3d at 1215; see federal court, the plaintiff is making a damages claims to be asserted by the also Cox v. Triad Isotopes, Inc., No. CA representation to the court that the action plaintiff to try to show an amount in con- 08-0315-KD-C, 2008 WL 2959845 at *4 is properly before the court. If the plain- troversy in excess of the jurisdictional (S.D. Ala. July 29, 2008) (“Lowery can tiff’s representations in its original com- minimum); Siniard v. Ford Motor Co., be read in no other manner than to disal- plaint are accurate but a material element 554 F. Supp. 2d 1276, 1278-79 (M.D. Ala. low ‘[p]ost-removal discovery for the of the court’s subject matter jurisdiction 2008) (remanding a product liability case purpose of establishing jurisdiction in is lacking, a defendant is free to move arising out of a motor vehicle accident diversity cases[.]’”). Allowing such dis- for dismissal and, assuming the facts to where the removing defendant relied on covery is inconsistent with the parties’ remove are provided, will be successful. verdicts from similar cases). obligation under Fed. R. Civ. P. 8 to set Id. The court, in essence, relies on the
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126 March 2009 same expectation of the defendant to Thus, a defendant that files a notice accurately represent that subject matter of removal prior to receiving clear Removal after jurisdiction exists when a defendant evidence that the action satisfies removes a case. For example: jurisdictional requirements, and Conducting then later faces a motion to If plaintiff’s counsel concedes that remand, is in the same position as a the plaintiff lacks the evidence to Discovery in plaintiff in an original action facing cure the deficiency, the court may a motion to dismiss. [As the court dismiss the action for failure to discussed above where the plaintiff State Court state a claim or want of jurisdic- would not be allowed to conduct tion… In our hypothetical diversity discovery to cure jurisdictional May Be Only case, should the plaintiff request deficiencies,] the court should not leave to conduct discovery to sup- reserve ruling on a motion to Option Left port its assertion that the case is remand in order to allow the defen- properly before the court, the court Even though Lowery precluded the dant to discover the potential factu- would deny such a request. In such removing party from conducting jurisdic- al basis of jurisdiction. a situation, the court would not tional discovery as part of the removal, a reserve ruling on the motion to dis- Id. at 1216-17. party is not prohibited from using dis- miss in order to allow the plaintiff covery while the case is in the state court Not only did the Lowery court disallow to look for what the plaintiff to request and receive the “unambigu- jurisdictional discovery, it also provided should have had–but did ous” statement or paper from the plaintiff that requests for jurisdictional discovery not–before coming through the that provides notice to a defendant that by defendants “is tantamount to an courthouse doors… In deciding if the case may then be removed under 28 admission that the defendants do not dismissal is proper, a court would U.S.C. § 1446(b). Keep in mind that have a factual basis for believing that look only to the facts as alleged in removal based on § 1332 is allowed 30 jurisdiction exist[ed].” Id at 1217. the complaint and would not waste days from the receipt of an amended Because the court considers a request for limited judicial resources by direct- pleading, motion, order or other paper discovery as an admission, the court fol- ing its inquiry elsewhere. from the plaintiff that establishes federal lows that remand of such cases is proper. jurisdiction if the removal takes place … Id. at 1218. within one year from commencement of [In a removed case,] a removing defendant must also allege the fac- tual allegation for federal jurisdic- …requests for jurisdictional discovery by defendants tion in its notice of removal under “is tantamount to an admission that the defendants do § 1446(a) … Having made this representation, the defendant is no not have a factual basis for believing that jurisdiction less subject to Rule 11 than a plain- exist[ed]. tiff who files a claim originally.
The Alabama Lawyer 127 the action. See 28 U.S.C. § 1446(b). The rule, a removing party in cases involving first three are self-explanatory, however injunctive relief must prove the jurisdic- courts have not articulated a bright-line tional minimum by proving that the test for identifying “other paper” that object of the litigation that would be suffices for jurisdictional purposes. See awarded to the plaintiff exceeds $75,000. Lowery, 483 F.3d at 1213. Even without Where only injunctive or declaratory an established standard, courts have held relief is sought “it is well established that that “other paper” includes responses to the amount in controversy is measured formal discovery requests, settlement by the value of the object of the litiga- offers and deposition testimony. Id. (cit- tion.” Ericsson GE Mobile ing Wilson v. Gen. Motors Corp., 888 Communications, Inc. v. Motorola F.2d 779, 780 (11th Cir. 1989) (responses Communications & Electronics, Inc., 120 to requests for admissions), Addo v. F.3d 216, 218 (11th Cir. 1997) (quoting Globe Life & Accident Ins. Co., 230 F.3d Hunt v. Washington State Apple Adver. 759, 761-62 (5th Cir. 2000) (settlement Comm’n, 432 U.S. 333, 345, 97 S. Ct. offers), Akin v. Ashland Chem. Co., 156 2434, 2443, 53 L. Ed. 2d 383 (1977)); F.3d 1030, 1036 (10th Cir. 1998) (inter- see also Occidental Chemical Corp. v. rogatory responses), S.W.S. Erectors, Inc. Bullard, 995 F.2d 1046, 1047 (11th Cir. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1993). Even though there is a split in the 1996) (deposition testimony)). In addi- circuits between the plaintiff-viewpoint tion, a district court has the discretion to and the either-party viewpoint regarding hold a hearing and allow the parties to the proper standard in determining the offer evidence related to the sufficiency “amount in controversy” where injunc- of the removing documents if it so tive relief is involved, the Eleventh desires. See Lowery, 483 F.3d at n. 66. Circuit, relying on prior Fifth Circuit rul- ASB Lawyer The court in Lowery did provide one ings, confirmed that it would use the Referral Service exception to the rule that the court is lim- “plaintiff-viewpoint rule” where injunc- ited to considering only the removal docu- tive relief is at issue. Ericsson GE The Alabama State Bar Lawyer Referral ments: “A defendant would be free to Mobile Communications, Inc., 120 F.3d Service can provide you with an excellent introduce evidence regarding damages at 219. “The value of injunctive or means of earning a living, so it is hard to arising from a source such as a contract declaratory relief for amount in contro- believe that only three percent of Alabama provision whether or not the defendant versy purposes is the monetary value of attorneys participate in this service! LRS received the contract from the plaintiff. In the object of the litigation that would wants you to consider joining. such situations, the underlying substantive flow to the plaintiffs if the injunction The Lawyer Referral Service is not a pro law provides a rule that allows the court were granted.” Leonard v. Enterprise bono legal service. Attorneys agree to to determine the amount of damages. For Rent-a-Car, 279 F.3d 967, 973 (11th Cir. charge no more than $50 for an initial con- example, in contract law, the default 2002) (citing Ericsson, 120 F.3d at 218). sultation, not to exceed 30 minutes. If, after measure of damages is expectations dam- In Ericsson the mayor of Birmingham the consultation, the attorney decides to ages; a court may look to the contract and determined that the City of Birmingham accept the case, he or she may then charge determine what those damages would be.” (“City”) needed a new public safety his or her normal fees. Id. However, the expectations damages communications system and hired a con- In addition to earning a fee for your serv- that will be considered by the court must sultant to assist the City in evaluating ice, the greater reward is that you will be be the damages that would flow to the competing bids. Id. at 217. Plaintiff helping your fellow citizens. Most referral plaintiff in the event the plaintiff prevails. Ericsson GE Mobile Communications, clients have never contacted a lawyer before. Inc. (“EGE”) provided a bid of Your counseling may be all that is needed, or $9,758,053 and defendant Motorola you may offer further services. No matter Injunctive Communications & Electronics Inc. what the outcome of the initial consultation, (“Motorola”) provided a bid of the next time they or their friends or family $11,336,282. Id. The City rejected the need an attorney, they will come to you. Relief–How to bids and then negotiated a new contract For more information about the LRS, con- with Motorola. Id. EGE brought an tact the state bar at (800) 354-6154, letting Determine the action to enjoin the enforcement of the the receptionist know that you are an attor- contract between Motorola and the City ney interested in becoming a member of the Amount in and to have itself declared the lowest Lawyer Referral Service. Annual fees are responsible bidder. Id. The district court $100, and each member must provide proof Controversy tried the case to an advisory jury and of professional liability insurance. In addition to having the burden to sat- concluded that the City’s decision to pur- isfy the “preponderance of the evidence” chase the system advances by Motorola
128 March 2009 was the result of improper influence by from a rebid “to a monetary standard, section 1441, an alien admitted to the United States Motorola on the City’s decision-makers there is no pecuniary amount in contro- for permanent residence shall be deemed a citizen of and, therefore, violated the Alabama versy” and the case was remanded to the the State in which such alien is domiciled.” Competitive Bid Law. Id. at 218. district court with instructions to dismiss 28 U.S.C. § 1332. Adopting the jury’s verdict, the district for lack of subject matter jurisdiction. Id. 2. Section 1446(b) provides, in part: court voided the negotiated contract Therefore, a removing defendant must “The notice of removal of a civil action or proceeding between the City and Motorola. Id. show to the district court that the recov- shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a The court in Ericsson relied on several ery allowed under Alabama law would copy of the initial pleading setting forth the claim for cases from the former Fifth Circuit to entitle the plaintiff to recover an amount relief upon which such action or proceeding is based, reiterate that the plaintiff-viewpoint rule in excess of $75,000 based on the claims or within thirty days after the service of summons remains the standard in the Eleventh plaintiff pled in its complaint. Without upon the defendant if such initial pleading has then Circuit. See, e.g., Alfonso v. Hillsborough evidence that the injunctive relief sought been filed in court and is not required to be served on the defendant, whichever period is shorter. County Aviation Authority, 308 F.2d 724 by the plaintiff exceeds the jurisdictional (5th Cir. 1962) (see below); Texas Acorn minimum, district courts in the Eleventh If the case stated by the initial pleading is not remov- able, a notice of removal may be filed within thirty v. Texas Area 5 Health Systems Agency, Circuit will remand the cause to state days after receipt by the defendant, through service Inc., 559 F.2d 1019, 1023 (5th Cir. 1977) court. or otherwise, of a copy of an amended pleading, (“Surely a plaintiff cannot satisfy the motion, order or other paper from which it may first jurisdictional amount any time a private be ascertained that the case is one which is or has defendant’s annual budget exceeds [the Conclusion become removable....” 28 U.S.C. § 1446(b). requisite amount in controversy].”); 3. Section 1447(c) provides: Vraney v. County of Pinellas, 250 F.2d After Lowery, the evidence a district “A motion to remand the case on the basis of any 617, 618 (5th Cir. 1958) (dismissing an court may use in order to evaluate defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the action for lack of subject matter jurisdic- whether a case was properly removed within the first 30 days has been nar- notice of removal under section 1556(a). If at any tion because “there is no averment show- time before final judgment it appears that the district ing or tending to show that the value to rowed to the removing documents, which court lacks subject matter jurisdiction, the case shall the plaintiff of the object or right sought generally include only the notice of be remanded. An order remanding the case may to be enforced exceeds the [jurisdictional] removal and complaint. Without a speci- require payment of just costs and any actual expens- es, including attorney fees, incurred as a result of the sum or value.”) (emphasis in original). In fied amount pled in the complaint or a document attached thereto, a district removal. A certified copy of the order of remand shall particular, the court discussed the Fifth be mailed by the clerk to the clerk of the State court. Circuit’s holding in Alfonso where a court in Alabama is unlikely to agree The State court may thereupon proceed with such group of homeowners brought a class with a removing defendant that the court case.” 28 U.S.C. § 1447(c). action seeking to enjoin the expansion of has subject matter jurisdiction over the 4. “Although Lowery itself involved the Class Action a county airport. Ericsson, 120 F.3d at cause. In addition, because post-removal Fairness Act (“CAFA”), it interprets general removal statutes and has been applied by courts outside of 219. The Alfonso court rejected the defen- discovery is clearly disfavored under Lowery, a removing party will likely the CAFA context.” Spivey v. Fred’s Inc., 554 F. Supp. dants’ contention that “the amount in con- 2d 1271, 1274, n. 1 (M.D. Ala. 2008); see, e.g., troversy is the air rights to the defen- have to wait to see if or when it may try Constant v. Int’l House of Pancakes, 487 F. Supp. 2d dants.” Alfonso, 308 F.2d at 727. In to remove a case based on discovery 1308 (N.D. Ala. 2007) (J. Acker). Ericsson, the Eleventh Circuit agreed that served while the case is pending in the the value of the object of the litigation is state court. As provided in Lowery, the not the value shifting to the defendant but removing defendant must show that the only the recovery that would go to the removing documents “unambiguously plaintiff if successful. 120 F.3d at 221. establish federal jurisdiction.” Similarly, Under the Alabama Competitive Bid a removing defendant in a case involving Law, EGE could not recover monetary only injunctive relief must prove to the damages based on the loss of contract court that the “value” of the injunctive J. Brannon Maner but could only ask the court to consider relief to the plaintiff exceeds the jurisdic- practices with ▲▼▲ any contract in violation of this article as tional minimum. Gordon, Dana, Still, void without ordering the defendant to be Knight & Gilmore required to perform under a prior bid that Endnotes LLC in Birmingham. was rejected. Id. Therefore, the court 1. “(a) The district courts shall have original jurisdiction He graduated from held that any benefit that EGE could of all civil actions where the matter in controversy the University of exceeds the sum or value of $75,000, exclusive of receive from the injunctive relief award- interest and costs, and is between–(1) citizens of dif- Alabama in 2000 and able by the district court was too specu- ferent States; (2) citizens of a State and citizens or received his JD from lative and immeasurable to satisfy the subjects of a foreign state; (3) citizens of different the University of Alabama School of Law in amount in controversy requirement even States and in which citizens or subjects of a foreign 2005. His practice is devoted to litigation though bids in excess of $9,000,000 were state are additional parties; and (4) a foreign state, representing businesses and individuals in defined in section 1603(a) of this title, as plaintiff at issue. Id. at 222. Because EGE cannot and citizens of a State or of different States. disputes ranging from breach of contract to wrongful death. reduce the speculative benefit resulting For the purposes of this section, section 1335 and
The Alabama Lawyer 129 130 March 2009 The Agency Argument– What ERISA Plaintiffs and Defendants Need to Know
By Thomas O. Sinclair and rs. Smith worked more than 15 in a claim for Social Security Disability Jenifer Champ Wallis years for an employer she (“SSDI”) benefits. ABC Insurance made M respected in a job she enjoyed. clear that Mrs. Smith would not be When Mrs. Smith was diagnosed with a responsible for obtaining representation The Employee Retirement Income potentially debilitating medical condi- in the SSDI claims process but rather that ABC Insurance itself would “help Security Act of 1974, commonly known as tion, she planned to obtain treatment and continue working. More than five surger- her” obtain representation. Mrs. Smith ERISA, governs most employer-provided ies later, Mrs. Smith and her attending accepted the insurer’s offer. employee welfare benefits. If an employer physicians concluded she was simply no Mrs. Smith was then contacted by provides its employees with benefits such longer physically capable of working. Government Benefit Advocates, an entity that represents individuals in claims for as group disability insurance, ERISA may Luckily for Mrs. Smith, one of the employee benefits provided by her Social Security Disability benefits. One of govern legal disputes that arise concern- employer was a group disability insur- the initial forms Government Benefit ing those benefits. In practical effect, ance plan, one which paid 60 percent of Advocates requested Mrs. Smith sign was ERISA (a federal statute) may preempt her pre-disability salary in monthly one allowing Government Benefit Advocates to release information on the any state law claims an employee would Long-Term Disability (“LTD”) benefits upon a finding of total disability under status of her SSDI claim to the LTD carrier, otherwise have and subject those claims the policy. ABC Insurance. Mrs. Smith executed the to the increasingly specialized area of Mrs. Smith submitted a claim for dis- form and provided Government Benefit ERISA litigation. This article is written ability benefits with ABC Insurance, the Advocates with the contact information for all her attending physicians–contact infor- for ERISA practitioners on both sides of LTD insurance carrier, was approved for benefits and began receiving a monthly mation she had also provided ABC the bar and for corporate counsel who check for disability benefits. Mrs. Smith Insurance. Government Benefit Advocates are faced with ERISA questions arising in readjusted her life plan and set a new contacted Mrs. Smith’s attending physi- the administration of employee benefits. goal–meeting her daily needs on only 60 cians and obtained her medical records. percent of her former salary. Within a Government Benefit Advocates also had few months, ABC Insurance offered to consultants review Mrs. Smith’s medical arrange for Mrs. Smith to be represented records and these consultants opined that
The Alabama Lawyer 131 Mrs. Smith was unable to perform the job duty requirements for any occupation in the national economy. What Happened to Mrs. Government Benefit Advocates then submitted the medical records and reports outlining Mrs. Smith’s inability to perform Smith’s Social Security any occupation in the national economy to the Social Security Administration in support of Mrs. Smith’s claim for Social Award? Security Disability benefits. Government Benefit Advocates then represented to the Social Security Administration and to the Most disability insurance plans contain reimbursement provi- administrative law judge at the hearing on Mrs. Smith’s claim for sions that provide that upon an insured’s receiving a Social Social Security Disability benefits that Mrs. Smith was unable to Security Disability award, the insured must pay back what is work in any occupation. Mrs. Smith was found to be “disabled” deemed an “overpayment” of benefits. In many cases, as is by the Social Security Administration and awarded Social illustrated by the case of Mrs. Smith, this overpayment will con- Security Disability benefits. Mrs. Smith then received a check stitute the entire amount of the insured’s initial lump sum Social for $50,000 in retroactive Social Security disability benefits, cov- Security award paid for past-due benefit periods. These reim- ering the same period of time she was receiving LTD benefits bursement provisions have been discussed in depth by other and also received notice that she would receive monthly Social ERISA practitioners4 and therefore will not be discussed at Security Disability benefits in the future. Her future monthly length here. It is sufficient for the purpose of this article to note benefit from Social Security was less than that most plans provide that even if the insured chooses not to the monthly LTD benefits she was present- apply for Social Security Disability bene- ly receiving from ABC Insurance. fits, the LTD insurer may have the con- Throughout her claim for Social …it is the existence of tractual right to estimate the amount of Security Disability benefits, Government a right of control, those benefits and reduce the amount of Benefit Advocates kept ABC Insurance monthly benefits the LTD insurer is paying updated on the progress of Mrs. Smith’s notwithstanding accordingly. Thus, insureds have little Social Security Disability claim through e- choice in determining whether to apply for mails and phone conversations. whether it is actually Social Security Disability benefits. Government Benefit Advocates communi- cated regularly with Mrs. Smith’s insurer, exercised, that is a notifying ABC Insurance when medical factor to be considered Considerations records were requested and keeping ABC Insurance apprised of the status of Mrs. when determining the for Claimants Smith’s claim for Social Security Disability benefits. Upon the award of existence of an agency and Insurers Mrs. Smith’s Social Security Disability benefits, Government Benefit Advocates relationship. ERISA practitioners who represent par- notified ABC Insurance of the award and ties in litigation resulting from an insurer’s provided ABC Insurance with a copy of the award letter from denial of disability benefits should recognize the events related the Social Security Administration. Government Benefit above raise important legal issues that could weigh on the suc- Advocates then notified Mrs. Smith that she would be responsi- cess of a lawsuit seeking to recover additional LTD benefits. ble for reimbursing ABC Insurance for the resulting “overpay- Questions pertinent for ERISA practitioners are whether medical ment” of benefits1 and that Government Benefit Advocates records gathered by Government Benefit Advocates and the would coordinate repaying ABC Insurance.2 Government information therein could be imputed to ABC Insurance and Benefit Advocates later notified Mrs. Smith that the amount of whether ABC Insurance may be judicially estopped from arguing the “overpayment” was $50,000, the total amount of her retroac- that Mrs. Smith is capable of working in a job in the national tive Social Security Disability benefit payment, and that she was economy as a result of Government Benefit Advocates’ represen- required to pay this amount to ABC Insurance.3 tations to the Social Security Administration during Mrs. Smith’s Mrs. Smith submitted the $50,000 check to Government claim for Social Security Disability benefits. The answer to these Benefit Advocates who immediately turned over the funds to issues hinges on whether Government Benefit Advocates can be ABC Insurance. ABC Insurance paid Government Benefit deemed ABC Insurance’s agent or whether Government Benefit Advocates for its services in representing Mrs. Smith in her Advocates’ actions link itself, the group LTD Plan and ABC claim for Social Security Disability benefits and recovering the Insurance so tightly that the agency argument is unnecessary.5 “overpayment.” Shortly thereafter, Mrs. Smith received notifica- Alabama law is clear that the facts, not how the parties character- tion from ABC Insurance that it was ABC Insurance’s determi- ize their relationship, are determinative as to the existence of an nation that she was not disabled pursuant to the terms of her agency relationship.6 Alabama law is also clear that it is the exis- group LTD disability policy and that ABC Insurance would no tence of a right of control, notwithstanding whether it is actually longer pay her monthly LTD benefits. Mrs. Smith received no exercised, that is a factor to be considered when determining the further LTD benefits from ABC Insurance. existence of an agency relationship.7 For this reason, an agency analysis will require a case-by-case factual determination. Such
132 March 2009 facts include the existence and contents of any service agreement between the LTD insurer and its purported agent, communica- Discovery in An tions between the LTD insurer and its purported agent, payment of the purported agent by the LTD insurer and the level of con- ERISA Case trol exerted by the LTD insurer over its purported agent. A request from the claimant for documents evidencing any of Although the Employee Retirement Income Security Act of 8 these factors is likely to result in a discovery battle. From the 1974 was enacted to promote the interests of employees . . . in LTD insurer’s perspective, it neither wants its purported agent to employment benefit plans and to protect their contractually 9 be deemed as such nor does it want to produce any service defined rights[,] the body of law of ERISA has, in practical agreement between the LTD insurer and its purported agent. effect, created hurdles rather than reprieve for many ERISA 10 LTD insurers could consider such service agreements to be pro- plaintiffs. The most notable manner in which ERISA plaintiffs prietary information and refuse to produce them on that basis. are hindered and insurers favored is in the context of discovery. The service agreement, however, may contain provisions that Although the ERISA statute doesn’t set forth limits on discov- specify the amount of control the LTD insurer retains over its ery, the scope of what would constitute admissible evidence is purported agent–a key issue in determining the existence of limited, and as such the scope of discovery is, in large part, agency. Communications between the LTD insurer and its agent determined by the applicable standard of review employed by will be relevant for similar reasons but will likely also be the the court in an ERISA case. The standards of review range from subject of discovery disputes. Therefore, consideration must be de novo, in which the insurer’s denial of a claim for benefits is given to the unique discovery issues raised in ERISA cases. afforded no deference and the court is free to review evidence outside the “ERISA record,” to arbitrary and capricious, in
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The Alabama Lawyer 133 which an insurer’s denial of a claim for benefits will not be Therefore, it is important for ERISA practitioners to realize overturned unless it is determined to be both arbitrary and capri- the potential that if an agency relationship is supported by the cious. In cases in which an arbitrary and capricious, or modified facts of the case, those records garnered by the agent may be arbitrary and capricious standard of review applies, arguments submitted for consideration of the court as part of the ERISA are often presented that the scope of admissible evidence is lim- record and the knowledge of their contents imputed to the LTD ited to the “ERISA record,” or those documents that were before insurer. In an ERISA case, where the war is often won or lost the insurer at the time it made the determination to deny further based on who wins the discovery battle over what constitutes benefits. the “ERISA record,” this is a significant point. In cases such as Mrs. Smith’s, the scope Because of judicially created doctrine, of what is deemed the “ERISA record” insurers whose policies are governed by could be affected by whether the entity that …the principal cannot ERISA do not have a duty to investigate represented her in her claim for Social the claim, unlike insurance claims gov- Security Disability benefits (here take the benefit of the erned by state law. Thus, an LTD insurer “Government Benefit Advocates”) is agent’s act without could and normally has policy language deemed her LTD insurer’s agent. If so, placing the burden of properly document- should the Government Benefit Advocates’ taking also the burdens ing the claim on the claimant, a result that documents used in the Social Security pro- often finds a disabled layman trying to ceeding be considered as documents that resulting from the navigate the system of properly document- were before the defendant insurer, ABC ing an ERISA claim during the administra- Insurance, at the time ABC Insurance made agent’s knowledge tive process. Because judicial review is its determination to deny further benefits? and intentions. often limited to the “ERISA record,” prop- If so, ABC Insurance’s defense in the LTD er documentation of the claim during the litigation then would be affected by the administrative process can win or lose the scope of the “ERISA record” being much larger than just the subsequent litigation. Thus, insurers whose policies are governed claim file it maintained on Mrs. Smith’s claim. by ERISA have no incentive other than moral grounds to gather every single record supportive of a claim. Contrasted with Social Security advocates who seek to fully document SSDI claims, the Defining the “ERISA record” can contain much less evidence of the extent of the claimant’s condition and current vocational abilities than that found in the Social Security record. The litigation advantages of “ERISA Record” having those SSDI records outside of the “ERISA record” are A finding of agency in an ERISA case is significant for the significant for the LTD insurer, and the effect of including the potential that the LTD insurer could be imputed with the knowl- SSDI records in the LTD litigation can be substantial. edge in the records garnered by its agent and those records could be considered as part of the ERISA record. Knowledge that an agent acquires within the scope of his employment is imputed to his principal.11 “[N]otice to [an] agent while engaged Could Judicial Estoppel in the business of the principal, acting within the scope of the agent’s authority in respect to a transaction depending, is imput- Apply? ed to the principal, and when the principal adopts the acts of the Equally important to the issue of whether the SSDI record agent, he does so in the light of such imputed notice.”12 should be included in the ERISA record is whether the LTD car- Moreover, “the principal cannot take the benefit of the agent’s rier can be bound by representations to the Social Security act without taking also the burdens resulting from the agent’s Administration in its insured’s claim for Social Security knowledge and intentions.”13 Disability benefits. In Mrs. Smith’s case, her insurer retained a In Mrs. Smith’s case, Government Benefit Advocates obtained third party who represented to the Social Security medical records that her LTD insurer, ABC Insurance, did not. Administration that Mrs. Smith was not capable of working in Government Benefit Advocates also obtained reports based on any occupation in the national economy. That third party was physician reviews and examinations ABC Insurance did not. successful in obtaining Mrs. Smith’s Social Security disability Moreover, ABC Insurance benefited by Government Benefit benefits. Is the LTD insurer now judicially estopped from taking Advocates’ representation by receiving Mrs. Smith’s entire lump a contrary position to those statements made in that prior sum award for past due Social Security disability benefits. In an proceeding? ERISA action based on the subsequent denial of her claim for It is important to note at the outset that this issue of judicial LTD benefits, Mrs. Smith’s attorney should consider obtaining estoppel due to representations to the Social Security Government Benefit Advocates’ records and submitting them to Administration is a completely different issue than whether the the court as part of the ERISA record. Mrs. Smith’s attorney insurer is necessarily bound by a Social Security could also argue that the knowledge of these documents is neces- Administration’s determination of disability. The answer to this sarily imputed to the LTD insurer due to the agency relationship. latter question is decidedly no.14 However, judicial estoppel,
134 March 2009 which “precludes a party from asserting a claim in a legal pro- Ladd reduced the amount of her claim against the employ- ceeding that is inconsistent with a claim taken by that party in a ee welfare plan. If we reflect on the purpose of the doc- previous proceeding”15 may still apply. trine, which is to reduce fraud in the legal process by forc- Although the application of judicial estoppel in this specific ing a modicum of consistency on a repeating litigant, we context may be an issue of first impression for many judges, the see that its spirit is applicable here. To lighten the cost to United States Supreme Court has offered some guidance by set- the employee welfare plan of Ladd’s disability, the defen- ting forth the factors to be applied in determining whether to dants encouraged and supported her effort to demonstrate invoke judicial estoppel: total disability to the Social Security Administration, going so far as to provide her with legal representation. To First, a party’s later position must be “clearly inconsis- further lighten that cost, it then turned around and denied tent” with its earlier position. Second, … whether the that Ladd was totally disabled, even though her condition party has succeeded in persuading a court to accept that had meanwhile deteriorated. In effect, having won once party’s earlier position, so that judicial acceptance of an the defendants repudiated the basis of their first victory in inconsistent position at a later proceeding would create order to win a second victory. This sequence casts addi- “the perception that either the first or the second court was tional doubt on the adequacy of their evaluation of Ladd’s misled.” … A third consideration is whether the party claim, even if it does not provide an independent basis for seeking to assert an inconsistent position would derive an rejecting that evaluation.18 unfair advantage or impose an unfair detriment on the opposing party if not estopped.”16 In both Ladd and Darland, the courts recognized the potential injustice resulting from an LTD insurer’s pressing its insured to Although the Eleventh Circuit has not spoken on this particu- apply for Social Security disability benefits, paying for repre- lar issue, other circuits have squarely addressed it. In Darland v. sentation in the claim for Social Security disability benefits, Fortis Benefits Ins. Co., the Sixth Circuit held that “the princi- accepting the benefit of those proceedings by accepting repay- ples of judicial estoppel certainly weigh against [an LTD insur- ment of the “overpayment” created by those proceedings and er] taking such inconsistent positions.”17 The Seventh Circuit, then refusing to pay further disability benefits. without addressing the potential of a formal agency relationship, found judicial estoppel principles persuading in Ladd v. ITT Corp. but remained hesitant to extend the doctrine itself: It brings the case within the penumbra of the doctrine of Conclusion judicial estoppel–that if a party wins a suit on one ground, The implications of an LTD insurer hiring or even referring it can’t turn around and in further litigation with the same its insureds to third parties to represent its insureds in claims for opponent repudiate the ground in order to win a further Social Security disability benefits are many–ranging from dis- victory. The doctrine is technically not applicable here, covery disputes regarding whether the Social Security record because MetLife and ITT, the defendants in this suit, were should be part of the “ERISA record” to the issue of whether the not parties to the proceeding before the Social Security LTD insurer could find itself judicially estopped from taking Administration. Yet they “prevailed” there in a practical positions contrary to the prior representations regarding its sense because the grant of Social Security benefits to insured’s ability to work. ERISA practitioners on both sides of
The Alabama Lawyer 135 the bar should take careful note of the presence of such an argu- 11. See Harris v. Gulf Refining Co., 240 F.2d 249, 252 (5th Cir. 1957) (“[S]ince he undoubt- ment in their ERISA cases and adjust their litigation strategy edly was the agent of one of the defendants the knowledge he acquired within the accordingly. Moreover, those attorneys who routinely represent scope of his employment is chargeable to his master.”). See also, Stone v. Mellon Mortgage Co., 771 So.2d 451, 457 (Ala. 2000). plaintiffs in ERISA litigation should take special care to tailor their initial client interview to determine the potential for those 12. Life & Cas. Ins. Co. of Tennessee v. Crow, 231 Ala. 144, 164 So. 83, 85 (Ala. 1935). agency arguments. ▲▼▲ 13. Connecticut Fire Ins. Co. v. Commercial Nat. Bank of San Antonio, 87 F.2d 968, 969 Endnotes (5th Cir. 1937). 1. Most group disability insurance contracts contain an “offset” provision that the amount of disability benefits the LTD insurer is required to pay may be reduced by 14. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832, 123 S. Ct. 1965, 155 the amount of monthly Social Security disability benefits its insured receives. L.Ed.2d 1034 (2003).
2. It is important to note the additional layer of a potential agency relationship created 15. Lett v. Reliable Ruskin, 2006 WL 2056582 at *3 (M.D. Ala. 2006). by ABC Insurance’s retention of Government Benefit Advocates in the recovery of ABC Insurance’s benefit “overpayment.” Some LTD insurers will hire a recovery spe- 16. New Hampshire v. Maine, 532 U.S. 742, 750-751, 121 S. Ct. 1808, 1815, 149 L. Ed. cialist separate and apart from the SSDI representative or undertake this function 2d 968 (2001). “in-house” to recover this “overpayment” on the LTD insurer’s behalf. This practice would help to insulate LTD insurers from this additional factor supportive of a finding 17. 317 F.3d 516 (6th Cir. 2003), overruled on other grounds by Black & Decker Disability of an agency relationship. Plan v. Nord, 123 S. Ct. 1965 (2003).
3. Whether Government Benefit Advocates’ representation of Mrs. Smith’s legal obliga- 18. 148 F.3d 753, 755-756 (7th Cir. 1998). tion to forfeit her Social Security benefits to ABC Insurance was a correct statement of law is a topic recently addressed by David Martin in a prior issue of this publica- tion. See David P. Martin, Taking Benefits Back: Reimbursement Under ERISA, 69 Ala. Law. 44 (2008).
4. See generally, David P. Martin, Taking Benefits Back: Reimbursement Under ERISA, 69 Ala. Law. 44 (2008).
5. Because this article addresses the agency argument, the issue of whether Government Benefit Advocate’s actions on behalf of the plan bind ABC Insurance and the plan itself in resulting litigation is not addressed herein. It is sufficient, for the purposes of this article, to note that the practical effects discussed, i.e., Government Benefit Advocates’ documents being imputed to ABC Insurance and the issue of judi- cial estoppel do not wholly depend on a finding of agency. Where the fictional “ERISA Plan” is named in an ERISA case (as some jurisdictions have determined it must be) and an entity such as Government Benefit Advocates has acted as a fiduci- ary of that plan, the same legal issues described herein may be raised without the Thomas O. Sinclair is partner with Campbell, necessity of finding an agency relationship between Government Benefit Advocates Gidiere, Lee, Sinclair & Williams PC. Sinclair and ABC Insurance. previously worked for a large defense firm where he routinely represented automotive manufactur- 6. See Semo Aviation, Inc. v. Southeastern Airways Corp., 360 So. 2d 936, 940 (Ala. ers and insurance companies. He now devotes his 1978) (“In Alabama, agency is determined by the facts, and not how the parties may characterize the relationship.”); See also Butler v. Aetna Finance Co., 587 So. 2d 308, practice to litigation involving insurance claims 310-311 (Ala. 1991) (“[A]gency is to be determined by the facts and not by how the governed by ERISA and state law, commercial liti- parties characterize the relationship.”) gation, complex litigation including class actions, and wrongful death litigation. He is routinely 7. See Wood Chevrolet Co., Inc. v. Bank of the Southeast, 352 So. 2d 1350, 1352 (Ala. asked to contribute to CLE seminars and articles on these subjects. 1977) (“It has been said that there can be no agency relationship absent a right of control by the principal over his agent. . . . It is not essential that the right of control be exercised so long as that right actually exists.”).
8. 29 U.S.C. § 1001 et seq. Jenifer Champ Wallis is an associate at Carr Allison. Wallis attended Cumberland School of 9. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 113, 109 S. Ct. 948, 956, 103 L. Law and holds a master’s of public health from Ed. 2d 80 (1989). the University of Alabama at Birmingham. A for- mer judicial clerk to Alabama Supreme Court 10. See Hon. William M. Acker, Jr., Can the Courts Rescue ERISA?, 29 Cumb. L. Rev. 285, Justices Michael F. Bolin and Lyn Stuart, her 287 (1998-1999). (“[ERISA’s legislative] history suggests that the recipients of retire- ment and medical benefits were the objects of great concern. Yet, as the statute is practice focuses on business litigation and bad applied, the real beneficiaries of ERISA, if any, turn out to be the fiduciaries, the faith litigation, including those disputes governed administrators, the employers and the insurers. … The defendant-fiduciary-adminis- by ERISA. trator-employer-insurer invariably wants ERISA to govern because of ERISA’s severely limited or absent remedies for the plaintiff-employee-participant-beneficiary.”)
136 March 2009
,Alaban1a State Bar Publications Order Forni
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Ben;: 67 1, Montg(i11'1(Jry.AL 36 101 AOC Now Charges AlaCourt Subscribers Per-Page Fee eginning March 2, 2009, the clerks and maintenance and operation of Administrative Office of Courts the computers and applications that store Bbegan charging lawyers subscrib- these document images, among other ing to AlaCourt a “per-page” fee for elec- things. Without these revenues, AlaCourt tronic access1 to images of court docu- would become cost-prohibitive and could ments that have been filed in cases in not be continued. which they are not counsel of record, and Also, in keeping with Chief Justice will charge subscribers other than Sue Bell Cobb’s commitment to open- lawyers for each document image ness in the judicial branch, the general accessed electronically through AlaCourt. public, most of whom will not be sub- For electronic access by a lawyer to scribers to AlaCourt, will be able to elec- images of documents filed in cases in tronically access court documents which that lawyer is counsel of record, through a program called, “Just One there will continue to be no charge to Look.” Under this program, for a flat fee that attorney for accessing or viewing of $9.95, anyone with Internet access documents in his or her cases. will be able to go into AlaVault and view Subscribers will be offered electronic the case action summary on any case in access to document images via AlaCourt the state; and, to the extent that plead- through several different plans. The ings, orders or other documents in that amount charged, which will vary from case are in AlaVault, those documents ten to 50 cents per page, will depend may be accessed for the same fee that upon the number of documents allowed members of the public are charged for to be accessed under the particular plan copies of documents from court files in chosen, i.e., the higher the number of clerks’ offices. ▲▼▲ pages per month allowed to be accessed under the particular plan that the lawyer Endnotes selects, the lower the per-page charge for 1. “Access” will include any of the following: (1) view- access to documents will be. ing the document online, (2) printing a paper copy of These charges are essential for main- the document or (3) downloading a storable PDF copy of the document. The “per-page” charge will be taining AlaCourt, because the legislature incurred regardless of whether one or all of these has never appropriated the funds for a types of access are utilized. statewide electronic data storage, access 2. By the end of 2004, there were 2.65 million pages of and transmittal system and now, due to documents recorded and available for online access budgetary constraints, is unlikely to be through AlaCourt. At the end of 2005, there were able to do so in the foreseeable future. 20.5 million pages of documents in AlaVault. By the The revenues generated by these charges end of 2006, 34.9 million pages were available online, and at year’s end in 2007, there were 64.83 will be used to support the greatly million pages available. Currently, there are over 100 increased costs2 of handling e-filing by million pages of court documents available to be lawyers, document-scanning by circuit accessed from AlaVault via AlaCourt. The Alabama Lawyer 139 Annual Meeting CLE CD Now Available! CLE Program Materials from the 2008 Alabama State Bar Annual Meeting are LIMITED available on a single CD. It’s convenient, $15 portable and worth every penny! SUPPLY Succeeding in Your Law Practice: Part I – How Can I Be More Featured Workshop: At the Center of America’s Cultural Successful, Efficient and Content in My Legal Career? 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How do I order the CD? Simply remit a check or money order made payable to the Alabama State Bar for $15 and forward it with your name and mailing address either clearly marked on the check or money order, or by filling in the following information: Feel free to order as many CDs Name:______as you would like! Just tally the Address:______cost at $15 per CD, and remit that amount. ______ Alabama State Bar For informational purposes Communications Department only. No CLE credit will be granted. Mail To: Post Office Box 671 Montgomery, Alabama 36101 Opinions of the general Counsel 141 Anthony McLain J. The Alabama Lawyer firm exam- the not opinion or hands on. It in, for of the infor- being settled she was firm separately law defense put my representing a young case was condition of settlements. which recently happened which client enter into a confiden- defendant and a defendant Alabama Rules of Professional about an event hands on it immediately. If these are strict- hands on it immediately. firm certain restrictions as a publication, newspaper, journal, etc. publication, newspaper, my required that defendant were also required to agree not to disclose any were your office to that effect. I tried to find this provision in the I tried to find this provision to that effect. office your not allowed under the not allowed not able to put my concerns about the ability of a the bar association, I would appreciate your getting me a copy getting appreciate your the bar association, I would of the terms of the settlement itself; however, of the terms of the settlement I would appreciate your referring me directly to any referring appreciate your . I would law plaintiff’s was a certain sum. The read something not too long ago which I cannot now “I read something not too long ago which “I have grave you to ask like I would “Secondly, Settlements QUESTION: Confidential/Sealed to do with attorneys accepting a ‘non-refundable retaineraccepting a ‘non-refundable fee’ had to do with attorneys that a non-refundable I recently read somewhere case. I believe ple, a divorce retainer fee However, of the case with anyone. prohibited from discussing the facts step further and required our lawa went lawyers defendant’s mation in this case to any imposing on a by ly outlawed practice. a such it is that outlaws of whatever to do with the case, having to disclose anything from the client to agree not set- amount of terms of the settlement, including but not limited to the facts, tlement, etc. We memo issued by but I was rules, a fraud case. Our firm was to us in the course of settling lady against a prominent Alabama statewide bank. The for not disclose the that she would essentially provided tiality agreement which amount or any Responsibility t 1 n Opinions of the general counsel Continued from page 141 “I can easily see how this type of weapon can be used ANSWER QUESTION TWO: by the defense bar to create a potential conflict of interest The Alabama Rules of Professional Conduct require that between the plaintiff’s existing counsel and the plaintiff her- a lawyer must abide by a client’s decision to accept an offer self due to the fact that it is not necessarily in our best of settlement in a matter and to defer to the client regard- interest to settle the case according to the terms imposed ing third parties who might be adversely affected. upon the law firm alone by defense counsel, whereas it Consequently, a lawyer may participate in a confidential may be in the client’s best interest. It seems amazing that, settlement even though there may be a possibility of in this case, the plaintiff is not prohibited from discussing adverse consequences on third parties or the public. The the facts of this case, yet the plaintiff’s lawyers are prohibit- Disciplinary Commission recognizes, however, that there ed from such discussion or communications. may be circumstances where confidential settlements con- “In an effort to get this case resolved and to prevent any ceal information that might prevent health and safety con- possible conflict with the client, our firm went ahead and sequences for the public. Such circumstances clearly agreed to the terms which were being imposed on us by demonstrate the need for a revised approach to confiden- the defendants. However, before this situation arises again, tial settlements either by statute, court rule or a rule of I would appreciate your advising us on the following points: professional conduct. “ 1. Is a confidentiality agreement imposed on the plain- tiff’s attorneys, which is more restrictive than the confiden- DISCUSSION QUESTION ONE: tiality provisions imposed on the plaintiff himself, a violation With regard to non-refundable legal fees, the beginning of the Rules of Professional Responsibility in that they pres- principle is that the client has the absolute right to termi- ent a potential conflict of interest between the plaintiff and nate the services of his or her lawyer, with or without his attorneys? cause, and to retain another lawyer of their choice. This “2. Can a defendant impose a confidentiality requirement right would be substantially limited if the client was on plaintiff’s counsel in that the plaintiff’s counsel is not a required to pay the full amount of the agreed-on fee with- party to the suit and is not receiving any consideration from out the services being performed. In Gaines, Gaines and the defendant for any confidentiality agreement? Gaines v. Hare, Wynn, 554 So.2d 445 (Ala. Civ. App. 1989), “3. Are any bonds of limitations placed on such confiden- the Alabama Court of Civil Appeals stated: tiality agreements by the Rules of Professional Responsibility? If so, what are they? “The rule in Alabama is that an attorney discharged “I would appreciate your giving us the benefit of your without cause or otherwise prevented from full per- wisdom and insight into these many and complex issues formance, is entitled to be reasonably compensated raised by the confidentiality agreements to which plaintiffs only for services rendered before such discharge. and their lawyers are being ‘bound and gagged’ and the Mall v. Gunter, 157 Ala. 375, 47 So.2d 144 (1908).” effect of professional responsibility rules on them.” The court also points out that when a client discharges a lawyer, the discharge ordinarily does not constitute a breach ANSWER QUESTION ONE: of contract even with a contract of employment which pro- The Disciplinary Commission has, on a number of occa- vides for the payment of a contingent fee and that part per- sions, considered the question of non-refundable retainers formance of a contract, prior to being discharged, entitles one and has consistently held that there must be some connec- to recover on quantum meruit for those services rendered. tion between the attorney’s fee and the legal services Additionally, Rule 1.16(d) of the Rules of Professional rendered. Conduct provides: 142 March 2009 “Rule 1. 16 Declining or Terminating Representation a matter” and, in the Comment to that rule, that a lawyer * * * should defer to the client regarding “concern for third parties (d) Upon termination of representation, a lawyer who might be adversely affected.” Thus, a fair reading of this shall take steps to the extent reasonably practicable rule requires the lawyer to abide by a client’s decision to to protect a client’s interests, such as giving reason- enter into a confidential settlement agreement even if that able notice to the client, allowing time for employ- agreement has potential to harm third parties or the public. ment of other counsel, surrendering papers and prop- This theme is carried forward in the Comment to Rule erty to which the client is entitled and refunding any 4.4, “Responsibility to a client requires a lawyer to subordi- advance payment of fee that has not been earned. nate the interest of others to those of his client,” but with The lawyer may retain papers relating to the client to the caveat that “that responsibility does not imply that a the extent permitted by other l a w .” lawyer may disregard the rights of third persons.” While Rule 4.4 does recognize the rights of third persons, it does Based on the above, it is the view of the Disciplinary not make the lawyer morally autonomous to the extent that Commission that no retainer should be non-refundable to he or she could disregard the desires of his client to enter the extent that it exceeds a reasonable fee. That is to say into a confidential settlement even though that settlement that there should be some nexus between the fee charged and the services performed by the lawyer. For factors for determining the reasonableness of the fee, see Peebles v. Miley, 439 So.2d 137 (Ala. 1983) and Rule 1.5(a) of the Alabama Rules of Professional Conduct. The Disciplinary Commission applied the above rule to contingent fee contracts in RO-91-05 holding that a client, after entering into a contingent contract, may discharge the lawyer and the lawyer then being entitled to compensation only on a quantum meruit basis. It must be said, however, that a contingent fee client cannot wait until a favorable settlement offer has been received to discharge the lawyer. In that situation, the lawyer can recover on the contract if the discharge was without cause. See Kaushiva v. Mutter, 454 A.2d 1373 (D.C. App. 1983), cert. denied 464 U.S. 820, 104 S.Ct. 83 (1983). DISCUSSION QUESTION TWO: While the Alabama Rules of Professional Conduct do not specifically address the ethical propriety of a lawyer partici- pating in the formation of a confidential settlement they, nevertheless, may be interpreted in a manner making such conduct permissible. Rule 1. 2 of the Rules of Professional Conduct specifically states in sub-paragraph (a) that “a lawyer shall abide by a client’s decision whether to accept an offer of settlement of The Alabama Lawyer 143 Opinions of the general counsel Continued from page 143 might shield the public from adverse health and safety Moreover, if there is a conflict in such a situation, it is no information. Although Rule 2.1 provides that a lawyer in more than the conflict inherent in any lawyer/client rela- rendering advice may refer to other considerations such tionship where a fee is negotiated/charged. With regard as moral and social considerations, there is nothing in to the second specific question, it is the view of the the rules that requires the client to follow this advice. Disciplinary Commission that a defendant or defendant’s Thus, the lawyer is left with the obligation to abide by a counsel may require confidentiality as a condition of set- client’s decision to accept an offer of settlement as clear- tlement, even though counsel is technically not a party to ly provided in Rule 1.2. (See Anne-Therese Bechamps, the suit. With regard to question three, the current Rules Sealed Out-of-Court Settlements: When Does the Public of Professional Conduct place no limitations on the for- Have a Right to Know? 66 Notre Dame L. Rev. 117 mation of confidential settlements by lawyers. (1990)). In reaching the above conclusion, the Disciplinary With regard to the specific questions listed in your Commission is not unmindful of the ongoing efforts in state request, it is the Commission’s view that it is not a viola- legislatures, Congress and the courts to fashion a solution tion of the Rules of Professional Conduct for a confiden- that would fairly balance the privacy and property rights of tial settlement agreement to impose more restrictions on the litigants and the safety and public health concerns of a plaintiff’s lawyers than the plaintiff. Since the lawyer the public. (See e.g., Andrew Blum, Protective Order Battle must abide by the client’s decision in this matter, in Continues, Nat’l L.J., January 11, 1993 at 1 and Bob accordance with Rule 1.2(a), there would be no conflict Gibbins, Secrecy versus Safety, Restoring the Balance, between the lawyer and his client in such a settlement. A.B.A.J., December 1991 at 74). [RO 1992-17] ▲▼▲ 144 March 2009 Legislative Wrap-up 145 McCurley, Jr. or visit www.ali.state.al.us. L. contact Bob McCurley at (205) 348-7411 more information about the Institute, For more information about the Robert The Alabama Lawyer writ- of a ethical don’t think don’t of govern- four years is the years four of government. It of government. promul- Association Public Officials, the Ethics Commission and call or request an opinion of be a violation of the Ethics Act. to file a Statement of Economic be an ethical problem then don’t do it. be an ethical problem then don’t 1982) the court stated (Ala. Crim. App. 1982) Code of Professional Responsibility, still produced by lawyer may Code of Ethics for lawyer each Annually, separate ethics exam. of interest” referred to in this chap- “conflicts of interest” referred can result in suspension or disbarment. elected officials and other public officials if the and other public officials elected officials lobbyists. So.2d 1185 for rules in providing has been at the forefront is at least $50,000. feel there may feel seven act has been amended at least This § 36-25-1. person elected to public office in any level person elected to public office , 415 Public Officials ethical conduct. Before one can be admitted to practice one can be admitted ethical conduct. Before the model used when the American Bar the model used when State person appointed to a position in any level preventive measure, a preventive first speaker in the legislative orientation in the legislative every first speaker a any covers the corollary people trouble. If you is the part that gives Handbook for law very Alabama State Bar Rampey v. in Alabama, one must pass a The Alabama adopted the In 1973, The In by asked are often Lawyers It has been said if you have they know Most state employees The Employees, Ala. Code for gated their rules law one hour of CLE ethics training to maintain at least their bar must attend license. As Act” Campaign Practices reminds them of their required filings under the “Fair expenditures. and campaign funds concerning reporting their ment and any Rules of Professional Conduct Officials Ethics Laws for Public Laws for Lawyers Ethics Laws for times. was ten in 1887, of Alabama’s general counsel on ethical questions. Violations the state bar’s official can accept a trip, receive a gift, attend a function or do any attend gift, a can accept a trip, receive public official also sets requirements for payInterest if their base or advise lob- become a lobbyist to also are asked number of things. Lawyers as to their responsibilities. byists Alabama’s conduct to their members. legislature passed this chapter to prevent public officials from using their public officials to prevent passed this chapter the legislature gains. The to reap private offices duties. interest and his official private an official’s ter are conflicts between director of the statepresents the legislators Jim Sumner Ethics Commission. a with However, there is an ethical problem there may Legislative Wrap-Up Continued from page 145 The Alabama Law Institute and the legislative leaders the host is required to report the entire amount to who comprise the Legislative Council of the legislature con- the Ethics Commission. This burden is upon the host, ducted two seminars, one for legislative staff and the other not the public employee or public official; and for legislators, on “A Practical Guide to Legislative Ethics.” 2. Any hospitality, sporting event, etc. provided should A representative from the Center for Ethics in Government not be continuous in nature. for the National Conference of State Legislatures joined Legislative employees in their session on “practical Montgomery attorney Joe Espy of Melton, Espy & Williams ethics,” held prior to the session, took this very seriously and Mobile attorney Matt McDonald of Jones, Walker, with 95 percent of them being present while others may Waechter, Poitevent, Carrere & Denegre to present a pro- have attended the conference by listening to the broadcast gram on ethics from a different approach. through speakers in their office in the State House. Espy, who represents primarily Democrats, and McDonald, The legislators’ “practical ethics” session was held the who primarily represents Republicans, presented a list of sce- second week of the session in the House Chamber. Unlike narios or examples of ethical dilemmas for staff and legislators previous ethics conferences where the law was read and and gave them guidance on how to address these issues. explained, these conferences were addressed from the From a general standpoint, Espy and McDonald present- Socratic method of using fact situations and how the ethics ed four “safe harbors” contained in the Ethics Act, § 36-25- law safe harbors applied to specific facts. 1(31)(b): Lawyers, legislators and government officials do not start 1. Seasonal gifts: an annual aggregate amount of $250 out by thinking, “I am going to violate an ethics rule.” with any single gift being less than $100. (Christmas, Sometimes, through past practices and the lack of speci- Easter, birthdays, possibly anniversaries, etc.); ficity in the law, actions are taken that result in charges of 2. Promotional items given by a company to everyone, ethical misconduct. generally, and not specifically public employees or Legislators throughout the country, as well as in public officials; Alabama, are faced with situations in the gray areas on an 3. Meals of less than $250 and the host is present at everyday basis (just as lawyers are). If you are asked for the meal. If the host is not present, then food and advice outside the safe harbors, you may want to consult beverage are outside of the safe harbor. Sometimes, with the Alabama Ethics Commission, at (334) 242-4840 or people refer to meals as hospitality and include tick- www.ethics.alabama.gov. ets to sporting events, plays, etc., in the same cate- gory. The test is the same–less than $250 per person with the host being present; and Ethics Laws for Lobbyists 4. Travel and lodging at association meetings, confer- In her January 2009 article in the State Legislators’ ences, educational functions, etc.–the basic rule Magazine, Peggy Kerns, director of the NCSL’s Center for being that these activities must not extend beyond Ethics in Government, quoted California lobbyist Greg Cook three consecutive days. Also, the cost per day per of the Governmental Affairs Consulting in Sacramento as person should not be in excess of $250. saying, “Lobbying is truly the third house in the legislative Technically, one can get into a number of other subcate- process.” She notes that in reaction to the onslaught of lob- gories. A couple of other things to remember: byists in state legislatures, some states have gone so far 1. In the event the costs for hospitality, sporting events, as to enact a “no cup of coffee” rule, prohibiting legislators lodging, travel, etc. exceeds more than $250 per day, and staff from accepting anything of value. 146 March 2009 Former Florida Speaker of the House John Thrasher, public official, candidate or members of their house- rather than run for another office after being term-limited hold. (Section 36-25-19(a)(3)(4)) out of the legislature, joined a lobbying firm and is thought 8. File notice of termination of lobbying activities in a of as a “super lobbyist.” He is quoted as saying, “Having timely manner. (Section 36-25-20) been on both sides the best you can do as a lobbyist is to 9. Know that no lobbyist or principal can enter into a have a good academic argument and tell the truth.” contingency fee arrangement having to do with the Legislators and lobbyists generally agree that scandals passage or defeat of any legislative action. (Section are usually the impetus for reforms. The biggest change in 36-25-23(c)) the past 25 years has been the decrease in corporate lob- 10. Be sure you know what is an allowed gift under the byists and increase in contract lobbyists. If one is asked to law. (Section 36-25-1(31)(b)(2) lobby on behalf of a special interest group, one must regis- ter with the Alabama Ethics Commission. In 2008, there were 671 registered lobbyists. The Ethics Commission’s Web site is http://ethics.alabama.gov/forms-lobby2.aspx Law Institute Bills and provides guidelines for lobbyists/principals for compli- 2009 Regular Session ance under the Alabama Ethics Law and sets forth the fol- A discussion of these bills can be found in the January lowing top ten list of ways lobbyists can avoid violating the 2009 and November 2008 editions of The Alabama Lawyer. Alabama Ethics Law: Copies of the bills and the drafts with commentary are 1. Don’t offer a public official or employee anything in available on the Alabama Law Institute’s Web site. exchange for official action. (Section 36-25-7, Code of 1. Redemption from Ad Valorem Tax Sales Alabama 1975) Representative Mike Hill (HB) 2. Register to lobby with the Ethics Commission by Senator Wendell Mitchell (SB) January 31st each year or within ten days of enter- 2. Uniform Revised Lt. Partnership Act ing into any lobbying activity. (Section 36-25-18) Representative Cam Ward (HB) 3. Modify your registration as necessary throughout Senator Roger Bedford (SB) the year by adding any new clients or principals. 3. Uniform Satisfaction of Residential Mortgages (Section 36-25-18(c)) Representative James Buskey (HB) 4. File your quarterly statements in a timely manner. Senator Myron Penn (SB) (Section 36-25-19) 4. Business and Nonprofit Entities Code 5. Report any hospitality expenditures in excess of Representative Marcel Black (HB) $250 per calendar day which were expended on Senator Rodger Smitherman (SB) behalf of a public official or employee and members 5. Electronic Recording of Real Estate Records of their household. (Section 36-25-19(a)(1)) Representative Marc Keahey (HB) 6. Report any financial transactions between you or Senator Del Marsh (SB) your principal and a public official, candidate or mem- The Alabama Law Institute Web site (www.ali.state.al.us) bers of their household in excess of $500 in the has been revised. One may obtain Institute legislation (both prior quarter. (Section 36-25-19(a)(2)) the official bill and the ALI draft with Comments). One may 7. Detail any loans or direct business associations or also find any legislator as well as any bill pending in the partnerships between you or your principal and a legislature. ▲▼▲ The Alabama Lawyer 147 icpiayNotices Disciplinary Transfers to Disability Suspensions Public Reprimands Transfers to Disability • Selma attorney George Edward Jones, III was transferred to disability inac- tive status pursuant to Rule 27(c), Alabama Rules of Disciplinary Procedure, effective October 30, 2008. [Rule 27(c); Pet. No. 08-63] • Birmingham attorney Chalice Elaine Tucker was transferred to disability inactive status pursuant to Rule 27(c), Alabama Rules of Disciplinary Procedure, effective October 30, 2008. [Rule 27(c); Pet. No. 08-64] Suspensions • Fairfield attorney Calvin David Biggers was summarily suspended from the practice of law in Alabama pursuant to Rule 20(a), Alabama Rules of Disciplinary Procedure, by order of the Disciplinary Commission of the Alabama State Bar dated November 13, 2008. The Disciplinary Commission found that Biggers’s continued practice of law is causing or is likely to cause immediate and serious injury to his clients or to the public. [ASB nos. 08- 47(A); 08-113(A); 08-186(A); 08-219(A) (formerly CSP No. 08-931(A)); Rule 20(a); Pet. No. 08-31] • Effective August 20, 2008, attorney Lisa Cheek Temple of Montgomery has been suspended from the practice of law in Alabama for noncompliance with the 2007 Mandatory Continuing Legal Education requirements of the Alabama State Bar. [CLE No. 08-08] • Jasper attorney Gary Thomas Ward, Jr. was interimly suspended from the practice of law in Alabama pursuant to rules 8(c) and 20(a), Ala. R. Disc. P. , by order of the Disciplinary Commission of the Alabama State Bar, effective November 14, 2008. The Disciplinary Commission’s order was based on a petition filed by the Office of General Counsel evidencing that Ward had failed to respond to requests for information from a disciplinary authority and that probable cause exists that Ward has misappropriated and misman- aged client trust funds. [Rule 20(a); Pet. No. 08-65] The Alabama Lawyer 149 Disciplinary notices Continued from page 149 the client the hearing had been rescheduled for March 6, Public Reprimands 2006. Draper informed the client to meet him at his • On October 31, 2008, Fort Payne attorney Sherry Ann office and that they would attend the hearing together. Weldon Dobbins received a public reprimand with gen- Draper subsequently failed to appear at his office and eral publication for violating rules 1.3, 1.4(a) and 1.4(b), informed the client the hearing had again been resched- Ala. R. Prof. C. In or about May 2005, the complainant uled for April 6, 2006. Draper again instructed the client retained Dobbins to represent her in a divorce. The com- to meet him at his office but failed again to appear at the plainant paid Dobbins a $30 filing fee and $690.50 for designated time. The client contacted Draper’s law part- attorney’s fees and court costs. The divorce involved no ner and was ultimately informed that Draper never took property or custody matters. The complainant attempted any action in her case and that a hearing date had never on several occasions to contact Dobbins to obtain the been set. Draper admitted that he failed to file anything divorce paperwork but Dobbins failed or refused to com- on behalf of the client and lied to her about the court municate with her. dates. Draper willfully neglected a legal matter entrusted Due to Dobbins’s failure to initially respond to this bar to him, failed to communicate with his client and failed complaint her law license was summarily suspended and to return unearned fees. [ASB No. 07-202(A)] then converted to a 45-day suspension. After she learned of her summary suspension, Dobbins provided a • On October 31, 2008, Huntsville attorney Joe N. response to the complaint. She stated that she did pre- Lampley received a public reprimand with general publi- pare and file the divorce on behalf of the complainant. cation for violations of rules 8.4(d), 8.4(e) and 8.4(g), Ala. The court continued the case due to lack of service on R. Prof. C. On January 10, 2008, Panel I of the the complainant’s husband. In November 2005, the com- Disciplinary Board of the Alabama State Bar Board plainant’s husband acknowledged he had been served. entered an order finding Lampley guilty of violating the The case was reset for a hearing on February 28, 2006. above-referenced rules. The board ordered Lampley to The complainant’s husband failed to appear. The court receive a 180-day suspension, to be held in abeyance for thereupon made findings of fact and directed Dobbins to five years, with Lampley placed on probation during the prepare the order for the judge’s signature. The prepared five-year period. The terms and conditions of the order order was finally received by the clerk of the court and also instructed that Lampley receive the public reprimand filed September 13, 2007, over six months after the court with general publication. On November 30, 2003, requested same. [ASB No. 07-111(A)] Lampley had a telephone conversation with a Madison County Assistant District Attorney. During this conversa- • Jasper attorney Jonathan Lee Draper was ordered to tion Lampley made statements regarding the settlement receive a public reprimand with general publication for of his client’s criminal case. Lampley offered to make a violations of rules 1.3, 1.4(a), 1.4(b), 1.16(d), 8.4(a), and payment of $10,000 to the prosecutor in exchange for a 8.4(c), Alabama Rules of Professional Conduct. Draper favorable settlement. The offer was perceived as an was retained to represent a client before the Nursing attempted bribe. Because no condemnation action had Board and to withdraw a consent to probation the client been initiated in conjunction with the criminal case, the signed in regard to charges of a positive drug test. board found that the offer was improper and was in viola- During the course of the representation, the client paid tion of the Alabama Rules of Professional Conduct. Draper a total of $3,900 in legal fees. On or about Lampley’s prior discipline was also taken into considera- December 31, 2005, the client received notice that her tion as an aggravating factor in making the decision. The nursing license was suspended for non-compliance with Disciplinary Board found that Lampley’s conduct was the terms of her probation. Throughout January 2006, prejudicial to the administration of justice in that he Draper continued to tell the client the suspension of her attempted to improperly influence a government official, license was a mistake and that a court date was sched- and that he thereby engaged in conduct that adversely uled for February 2006. Draper failed to meet with the reflected on his fitness to practice law. [ASB No. client on the date of the alleged hearing and informed 03-330(A)] 150 March 2009 • Jasper attorney Byron Gustavis McMath was ordered to receive a public reprimand with general publication and a 30-day suspension for violations of rules 1.15(a), 1.15(g), 8.1(a), 8.4(a), and 8.4(g), Alabama Rules of Professional Conduct. Said suspen- sion will be effective December 1, 2008. In addition, McMath was ordered to complete seven hours of continuing legal education in ethics within one year of the order and to enroll in and complete the Practice Management Assistance Program of the Alabama State Bar. McMath deposited per- sonal funds into his trust account, including earned attorney fees from the State of Alabama, the Town of Parish and other clients. McMath also commingled personal and client funds. Specifically, McMath wrote checks out of his trust account for personal items, repeatedly used a check card linked to his trust account for the purchase of per- sonal items and requested and authorized funds to be automatically withdrawn from his trust account to cover overdrafts on his operating account. McMath also failed to hold the funds of clients in an IOLTA account and failed to remit interest earned by client funds to either the client or to the Alabama Law Foundation or the Alabama Civil Justice Foundation. McMath also failed to designate deposit slips and checks drawn on his trust account as either an “Attorney Trust Account,” an “Attorney Escrow Account” or an “Attorney Fiduciary Account.” McMath also knowingly made false statements during the Alabama State Bar’s disciplinary investigation regarding his conduct and handling of his trust account and client funds. [ASB No. 07-130] • On October 31, 2008, Birmingham attorney Gregg Lee Smith received a public repri- mand without general publication for viola- tions of rules 1.4(a) and 1.4(b), Ala. R. Prof. C. On April 24, 2008, Panel VI of the The Alabama Lawyer 151 Disciplinary Notices Continued from page 151 Disciplinary Board of the Alabama State Bar entered an Smith informed the complainants that he would order accepting Smith’s guilty plea in this matter. In or appeal the dismissal of the case. On one or more about September 2001, the complainant and others occasions, Smith told the complainant and/or the other were terminated from their employment with a Florence, plaintiff employees that he was continuing to pursue Alabama bank. They retained Smith to pursue claims the appeal. However, in or about May 2006, the com- under the Older Workers’ Benefit Protection Act and the plainant called the Eleventh Circuit Clerk of Court and Age Discrimination in Employment Act. Smith filed a was advised that the case had been dismissed in May complaint on behalf of these employees in the United 2004. Smith failed or refused to communicate the fact States District Court for the Northern District of Alabama. of the dismissal to the complainant. [ASB No. The defendant filed a motion for summary judgment and 06-171(A)] ▲▼▲ on or about May 6, 2004, the court granted the motion. 152 March 2009 Firms Among Members, About W. Fillingim LLC at 2053 Dauphin St., About Mobile 36606. Phone (251) 445-7257. Members Robert L. Hagler Jr. announces the opening of Robert Hagler LLC Joseph Madison Carlton, Jr. at 174 5 Main St., Ste. D, Daphne announces the opening of Joe 36526. Phone (251) 625-6688. Carlton, Attorney At Law. The mail- ing address is P. O . Box 214, Sylacauga Please e-mail announcements to 35150. Phone (256) 245-0525. Among Firms Marcia Daniel Ronald L. Davis announces the The Alabama Board of Pardons [email protected] opening of The Law Offices of and Paroles announces that Ronald L. Davis LLC at 1927 Meridith Hamilton Barnes has Seventh St., Tuscaloosa 35401. joined the agency’s legal division. Phone (205) 366-3669. Armstrong & Gray PC announces Gary W. Fillingim announces the that Sirena L. Saunders has joined opening of The Law Offices of Gary as an associate. ARE YOU PAYING TOO MUCH FOR LIFE INSURANCE? Through Drane Insurance you can purchase affordable life insurance from highly rated insurance companies. 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Phone Lehr Middlebrooks & Vreeland announces that Jason R. Watkins (256) 543-1660. PC announces that Don Harrison has become a partner. has joined as senior counsel. Estes, Sanders & Williams LLC Battaglia Law Office LLC announces that Lauren Shine has Maynard, Cooper & Gale PC announces the opening of additional joined as an associate. announces that Frank Ozment has offices in Birmingham and Huntsville, joined as of counsel, Jennifer R. has joined and that Stanley Moorhouse, Dana Jett T. Jackson McCain and Frances King Quick as an associate. McGowin and Tro y Pierce have Fish~Nelson LLC have joined as shareholders and L. joined as associates. Justin Burney has joined as an Henry I. Frohsin, James F. associate. Beers, Anderson, Jackson, Patty Barger, Jr. and J. Elliott Walthall & Fawal PC announces that Sean T. announce the formation of Frohsin Gregory Morris and Jeffrey W. Mims has joined as an associate. & Barger LLC at One Highland Brumlow announce the opening of Place, 2151 Highland Ave, Ste. 310, Morris & Brumlow PC at 110 0 East Bond, Botes, Shinn & Donaldson Birmingham 35205. Phone (205) Park Dr., Ste. 402, Birmingham announces that PC Mary Conner 933-4006. 35235. Phone (205) 833-1303. Pool has joined as an associate. Gaines, Wolter & Kinney PC Norris Injury Lawyers PC Boyd, Fernambucq, Vincent & announces that Ashley E. Manning, announces that Stephen C. Norris announces that Dunn PC Heather John B. Welsh and Brandon T. has joined as an associate. Fann has joined as an associate. Bishop have become partners. Siniard, Timberlake & League PC Capell & Howard PC announces a Gidiere Hinton Herndon & announces that Christopher M. new shareholder, Chad W. Bryan, Christman announces that Matthew Wooten has joined as an associate. and two new associates, April R. Griffith has joined as an associate. Dunaway Wise and Patricia Turner Padget Graham & Laney Romano. M. Clay Martin and Ta r a L. Helms PA has elected Richard S. Dukes to announce the opening of Martin & shareholder. Regina Cash, Elizabeth Kanter Helms PC at 401 Holmes Ave., NE, and Eric Wade were recently named Ste. C, Huntsville 35804. Phone The U.S. Department of Housing shareholders of Carr Allison. (256) 539-1990. and Urban Development announces the appointment of Brian M. Cloud and Jay E. Hogan Law Office PC announces Elizabeth Brassell Joiner to the announce the opening of Tidwell that Jamin W. Hogan has joined as position of chief counsel of the at 1625 Cloud & Tidwell LLC an associate. Birmingham field office. Richard Arrington Jr. Blvd. S., Birmingham 35205. Phone (205) Hoiles, Dasinger & Hollon PC Waller Lansden Dortch & Davis 322-6060. E.B. Harrison Willis has announces that S. Russ Copeland LLP announces that Brian J. joined as an associate. has become a member of the firm. Malcom has joined as an associate. S. Kay Dansby PC announces that Johnston Barton Proctor & Rose Andrew C. Allen has joined Stacy Gray Bence has joined as an LLP announces that Shayana Boyd White Arnold & Dowd PC as a associate. Davis and Max A. Moseley have shareholder. ▲▼▲ become partners. George C. Day, Jr. and Joseph M. Willoughby announce the formation The Kullman Firm announces that of Day & Willoughby PC at 1925 Matthew T. Scully has joined the firm. 154 March 2009 Get with the PROgram. When you become a rnember of the GilsbarPRO program , you will not only receive excellent service and coverage backed by CNA, burt:you ·u also have access to an abundance of resources to support your legal practke . CNA is the largest undel"Vllriter of legal malpractice covel'age in the US and serves 150,000 attomeys across the nation. GilsbarPRO is the exclusive adm inistrato r for the CNA Lawyers Professional Liability Program in tne Stats of Alabama. 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