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Janu:lry 1995 Volume56, Number I PvbkthoOwven umasa ye3J'(the June 11,u• It I bat d.lOCIO,Yedit.on) by lhe Alabamll SIDIt 8o•, ON THE COVER: P.O. 8o114156. Montgomery, Alabama36101-41SG The newSupreme Court or Alabamacontains manyinteresting feature.,. Among lhcm are: """"" (334) 269-1515. • The marblesupporting the btncli and columns is from Carrara.Ital y, wher• Michelangelo Robtn A Hurtabr . ···········-·······--·Ctla!, a E0.1or S....oSNnxl Llablllcy of a Munlcipalil,)' Under Alabama Law John.\. 0.... TlnCllioou --- -()--Rlcnltd a.~. DM1opo111- 811Alex l. Ho//sford.Jr. and Stel!ffl AnlhOfl!IHiggins-- ...- •.-, ...... ,_ ...... 35 - Ktlfl 8 NotmM.MOtllQOffllll'Y --· l o. rd OI Comml111onert P1ycbotherapy and the Law 111Clld, ECIW.l'IP Ti.no,, J, ,, Cha&or!\• 1A1 ClfQ.lil.JoM U11Shirlov Darby Howell...... 44 A Nlthola, l.Uvttnt • 3rd Circuit. Lynn ~ObtrllO" Jtcklon, Cfa)'10n• •mCircuh. RAiph N Hobbl, s.n. · ,111c1 ,,un .kM ~ o~. I, ~ • ""CJrQ,lt.Pioot Ho t WII Cumu lat.ive Index, January 1994 - December 1994 ..- ...... - ...... - ...... 50 Wt P C,OW'*'llf • T~ • 61h Qttu.1,. P\tell NO 2. J Oo1,,Q1e1Mc&,f TiJIC9ioou• M QQiit. M1v F ,.. Ill. AlnlliOl't •"' CrWI. Jom S Ke,. O.C:.., • • ~ W H Pruidc.nt's Page·- ·····-··· ...... 4 Lawyer.;m the F•mlly...... - .....27 W..ot1. ,.,,_ Papit • 1CllhCi,QA. P*1e Ho 1 ...... H ftMM't , ., ...... '°"0.0..... ,_. Ho 1...,.._ w ExecutlwD1rttto(s Rtport...... - ...... 6 CLEOpportunities ...... ---30 ~ ~ • ICNhc.CUII.~ Ko ) ...... $ l..t:gislath'tWrap-UP-----····-··· - ....,-.9 Disciplinary Report_ ...... ,- ..- ...... 52 lJcrrd...... ,_. ' 1(1a) ~ PWJf fflt 4 ,._.. A AboutM,mbers , AmongFirrris ...... 1 0 RecentDeci5ions ...... _ ....,- ...... 53 ~ JI ...... 4'1Mi• IO..Cffl4"*-No l.~ 1 ...... - ... -· 10,,C,-.-Ho l,MIC BuildingAlabama's Courlho=s ...... 12 YounglaW)'t-ts ' Sectlon...... 59 8 CIIW\l'N, ISifflltnQNffl• ltllt'I C:iroJII.Pl-. No ,. J MNol\ ~ ~ • 10ln Cll'Qllt. Plac. No I, ._.., C Poot Bar Briel,...... 17 M,morials...... 60 Jr Bil'mlflQNIII• 1°"1Clfall, P1'¢I Mo t, Cl1i"ftlI Wf'IOl'II BwmlnQI\I"'• IOlnClrcul, Bessemtf Cut-On Cktoro,H9Cl'r, Opinionsor 1he General Counsel...... 18 ClassifiedNolioes ...... 63 bolf!IITI, a, •••,,,., • 11th Clrcull, Aob•II M ~Ill. J, NewAdmi llccs...... 24 Rottnct • 12'thCitcull, M. Daill MIIISI\ En1•rpr111• 1,1r,Cl, cult. Pl•c• Mo I , Vlo1orH , l.ott. Jr , Mobi&il• Hltn OlrWit ALABAMA STATE BAJ!HEADQ UARTERS STAFF PlflCIHo 2. DIiiyC Bed$0lt, Motillt • 1» Clrc...c,PIKe ffD l. C-N Of\w, tll, MCl:ll14t• 131.11 Clro.ilt. PIMlt No • , ~ •IIS O..ter Awnut.Moo1gom PRESIDENT'SPAGE ALABAMASTATE BAR SUPPORTS THIRDCITIZENS CONFERENCE ut down December9, 1994 as a red letter day in Spud Seale set out very clearly the work of the task force and the history of our bar. On that date, the Alabama issuesthat neededto be addressed. State Bar. by unanimousresolution of the board of In December1990 , the board of bar commissionersadopted a bar commissioners.called for and authorized the resolutioncalling for nonpartisanelection of judges with a rec formationm of a Third Citizens Conference on AlabamaState ommendation that the legislaturepass an act making the nec Courts to study the selection of judges in Alabama,judicial essary changes in the election laws. Subsequently, a bill campaignfinancing. and other important issues affectingthe providingfor nonpartisanelections of appellate,circuit and dis administrationof justice in Alabama.The full text of the resolu trict court judges was introduced in the legislature. Unfortu tion is set out asan appendixto this page. nately,the bill did not advance. The resolution is a balanced,thoughtful approach to starling The movementrecommended by the December9 resolution a processto address the great concern or the publicand the bar is also consistent with the role of the AlabamaState Bar in ful about Judicial elections in Alabama. The resolution was filling its obligationsas outlined in the bar's long range plan approved unanimously by your bar com- adopted last September: missioners who represent the various ( l) To provideleadership I n enhancing the viewpoints of Alabama lawyers.I particu quality of Justice and access to legal larly thank Richard Gill of Montgomery services:and for his excellent draftsmanship on this (2) To support an independentand quality document In nw,t months, and particularlysince judicialsystem. the Novemberelections. an owrwhelming Creation of the Citiuns ' Conference number of judges, la\>-yersand lay people dot$ not mean that the extensivework of haw urged the bar to do something about the Task Poree on JudicialSelection will be the waywe selectjudges and conductjudi wasted. As noted in the resolution. the cial elections. No doubt you haw read the report of the task force.in some form, will many editorialsacross the state callingfor be available Loserve as a resource for the action. Editoriallilies such as ··Something citizens conferenceand the task force wiU is Terribly Wrong!" and "The Court Mess" acl as a liaison to lhe citizens conference were bandied about; while some of these on behalf of the bar to render assistanceas columns lackedcom plete candor, they did the work of lhe conferenceprogresses. raise issues that we all know must be Reaction to the resolutioncalli ng for the addressed,and addressedn01v. Broox G. Holmes citizens' conference has been tremendous Hlstoricallythe AlabamaState Bar has and widespread.An editorial proclaimed" A taken the lead in movements lo improve CitizensPanel to lookal reformingthe way our judicial system.The ba r was instrumentalin organizingthe we select judges is an excellentidea " and even stated that the First CitizensJudicial Conferenceheld in 1966 and the second AlabamaState Bar desen.-esa standing ovationfor its ltlO\'eS to such conferenceheM in 1973,both of which led to the drafting gi\ie the citiuns a better system. and passageof the judicial article of the AlabamaConstitution Theselection o{ GovernorBm--tr and JusticeAdams to head the and the creation of Alabama'sunified judicial system. citizensconference also recei\oedwide acclaim. It wouldbe very dif The bats TuskForce on JudicialSelection speni the last four firultto findtwo more\\-ell-respected people in Alabama.Governor years studying Issuesimio lving the elected judiciary,including Brewerand JusticeAdams ha\'I! enthusiast ically embracedthe citi a study of the nonpartisanelection of judges, other alternative zensconference concep l and thejob theyhave undertaken. means orJudicial selectio n. and campaignRn anclng for judicial At this point we do nol know what changes or recommenda elections. In the May 1994 Alabama lawyer then-President tions will be made by the conference and we do not presup- 4 /JANUARY1 995 TMEALABAMA LAWYER pose any particular outcome. We do kn01vwith the effective lion can be prepared for submission to the legislature which guidance of Cwemor Brewerand Justice Adamsand with the goesinto sessionin late April1995. input or this bar, the diverse group of citizens will conscien NOlvit Is Limefor all of us to pul aside differenceswe may llously look for measures and methods lo improve our judicial have and gel behind this effort.Now is the limew hen we must system. rise nboves pecial Interests nnd do what is right for our profes \Ve hnve asked that the Confere.nce make a report lo the sion and for the public we serve.I believ e when we look back to board of bar commissioners and lhe Judicial Conference by 1994-95 we will be proud that the Alabama State Bar took a April JO, 1995.I t is hopedfrom this report appropriate legisla- leadershiprole and did the right thing. • RESOLUTIONOF THEALABAMA STATE BAR CALLING FORTHE THIRDCITIZENS' CONFERENCE ON THE ALABAMASTATE COURTS WI1t:R£/\S there is widespreadpublic concern, which is snaredby the AlabamaStak 13ar.aboul judicial el~ctionsin Alabama.and the AlabamaState Bar, through Its Task Poree on Judicial Selection,hllS previous ly spent much lime extensivelys tudying issue$on involving the elected judiciary.including a stud)' of the nonparli:s.1nelect ion of judgilll, other alternative means of judicial selection.and campaign financingfor judicial elections:and WIIE REAS the AlabamaJudicial Conierence has also e;q,ressedan interest in an examination01 the means and methods of judicial selection.and changes in the organization and operationsof the AlabamaUmlied Judicial Sysrem;and WItERE,\S the AlabamaState Bar was instrumental in organizmg the first Citizens' JudicialConference. held in 1966,and the second such conference,held in 1973. both of which led to thr drafting and passageof the JudicialArticle of the Alaba nm Constitutionand the creation of Alabama's Unified Judicial System: NOW. THEREFORE,BE IT RESOLVEDthnl the AlabamaStale Bar, through its Board of Commissioners,hereby c.ills for and authorizes the formationof a Third Citizens"Conference on the AlabamaState Courts, to be modeledgenerally cm the 1966and J 973 conferences,to study the selectionof judges in Alabama.Judicial carnp;u11n financing and other important issues affectingthe administration of jus!Jct in Alabama: BE ITPURTHER RESOLVED that former CovemorAlbert P. Brewer and retired Supreme Court Justice Oscar W.Adams, Jr. seek nominations for ,ind select the participants in such conferijnce. BE IT FURTHERR l~SOINflO: (I) IJ'hatthe persons designatedabove to solicit nominations and to select the particip.1ntsare urged to ensure, to the extent possible,that the diversityof the state's population is representedat such ,onference. together with appropriategeog .raphical, professionaland politicaldiversity; 12) That the AlabamaState Bar's TaskForce on Judicial Selection report to the Citizens· Conferenceon its work and study in the area of selection of judges and cnmpaignfinancing 11uldelines. and ser'\'eas a resource for lhe confer ence, as well as serving as a liaison lo the Citizens' Conferenceon behalfof the AlabnmaState Bar. and r~nderinl!any other assistancet o the Conferenceand reporting to the Boardof Bar Commission~rs011 the work of the Conference as matters progress; t:ll Thal formeTGovernor Albert P. Brewer and retired Supreme Court Justice OscarW. Adams,Jr. retain vital. ach\'i/ and direct roles with the Conference: U) That the Citizens· Conferenceis requested to makean initial report to the Board of Bar Commissionersand to the Judicial Conferenceb)' April10, 1995on the issues of judicial selection and judicial campaignfinancing prior to the 1995 sessionof lhe Al.ibamaLegislalllre. ANDBE IT F'URTHERllF.SOI.\IED that the Alabam:.State Barand its staff cooperatew ith the AdministrativeOffice of Courts to coordinate staffsupport and facilities,and to seek funding for the Third Citizens' Conferenceon the Alabama Stale Courts. DONEth is 9th da)' or December1994. Keith 8. Nom1an,Secretary AlabamaState Bar THE ALABAMALAWYER JANUARY1995 / 5 EXECUTIVEDIRECTOR'S REPORT WELCOMESUSAN ANDRES ANDED PATTERSON n the fall of 1993, LheComm ittee on LawyerPub tion into one or the mosl dynamic lic Relationsand Advertisingrec ommendedto the small bars in the country. During board of bar commissioners that an audit of the Susan's tenure, Chaltanooga bar D bar's communicationsprogram be conducted.T he members witnessedincreased m em board approved the audit which was conducted through the bership benefits, while the commu auspices of LhePublic RelationsSectio n of the NationalAsso nity at large benefitedfro m new and ciation of Bar Executivesas a service to local and state bars. innovativepublic service programs. We were fortunate As one of her past board members to have David described: Anderson. director "Susan has demonstrateda highly of Public Affairs sophisticatedability to Lietogelher Susan Andres for the Illin ois community needs and perceptions State Bar Associa or lawyers in the practice of law tion , spend two 1vithcreat ive, positive waysin which days at the state CBA members individ ually may bar headquarters address those needs and percep in March analyz. tions... ing the bar's com "In summary, Susan can be cred mun ication ited with moving the CBA from function. In his being an intangible annual expense written reporl. in an attorney's budget to a vibrant, Dave recommend productive professional organiza ed Lhccrea tion of tion which provides tangib le the full-time posi resources for the multifacetedneeds Ed Patterson Keith B. Norman tion of director of of its diverse membership.'' communications Coupled with Lhisbackground is Susan's commitment to and public infor public service and her past involvementwith many profes mation. This past September, at the recommendation of the sionaland civic organizations. We are very fortunate to have a bar's Public Relations Committee, this positionwas created. person of Susan's abilityto serve as communicationsdirector. The timing of the board's action creating this new position Susan and Hoyt have two children. a married daughter , was fortuitous because we were able to bring on board the Claire, who is with Prudential Securities in Jacksonville, ideal person for this position-S usan Andres. Susan, and her Florida, and a son, Hoyt Hudson, who is a student at Lhe husband, Hoyt, had recently moved from Chattanooga,Ten CincinnatiConservatory or Music. nessee. I say that Susan is the ideal person to serve as director The new director or programs is Ed Patterson. If Ed's name of communications because she has the four key qualities for is familiar. It is because he joined the bar staff in 1976 follow which we were looking: vision, enthusiasm. experience, and ing his clerkship with Justice Hugh Maddox.Ed entered pri commitment. vate practice in 1981 after serving as Lhe bar's assistant A native of Oklahoma, Susan graduated from the University general counsel for four years and a brief stint as an assistant of Oklahoma. Having worked in the radio medium for 16 in the AttorneyGeneral 's Office. Over the last 14 years, Ed has years, she possesses extensive marketing experience and practicedin a law firm environment and as a sole practitioner. media skills. Prior to coming lo Montgomery, Susan spent the I think Ed possesses many outs tanding characterislics last two years as executive director of the Chattanooga Bar which make him well-suited for this position, includingorga Association. In this position. Susan won wide praise and nizational ability, leadership and, most imp0rtantly, a high acclaim for her leadershipin helping transform that associa- sense of professionalism. In addition, Ed has a keen apprecia- 6 I JANUARY1995 THEALABAMA LAWYER Lion for the rigorsof privatepractice. A nativeof Montgomery, receivedthe AlabamaState Bar Awardof Merit for his out· Ed receivedboth his undergraduateand lawdegrees Crom the standingservice to the legalprofession . University of Alabama.He and his wife. Beverly.have two Weare pleasedto welcomeSusan t o the barstaff and towel· daughters,Elliot, a freshmanat Auburn, and Erin, a junior al come Ed on his return. The bar is extremelyfortunate to ha,•e Trinity PresbyterianSchool. Besides h is past and continuing these two truly outstanding people to complimentour fine involvementin many localcommunity acLivilies, in I 980 Ed starr. • Caution! Attorneys in Active Practice in Alabama Be sure that you have the required occupational license in your possession! If you are actively practicing or anticipate practicing law in Alabama between October 1, 1994 and September 30, 1995, PLEASE BE SURE THAT YOU HAVE THE REQUIRED OCCUPATIONAL LICENSE. The dual invoice which was mailed in mid-September provided you with the option of paying special membership dues (if you were not in active practice in Alabama) or buying the required occupational license to practice (if you were in active practice in Alabama) on this one invoice. Direct any questions to: Christie Tarantino, Membership Services Director, at 1-800-354-6154 (in state WATS) or (334) 269-1515 immediately ! THE Au\BAMA LAWYER JANUARY1995 / 7 NOTICE OF ELECTION Notice is given herewith pursuant to the Alabama State Bar Rules Governing Election of President-elect and Commissioner. PRESIDENT-ELECT The Alabama State Bar will elect a president-elect in 1995 to assume the presidency of the bar in July 1996. Any candidate must be a member in good standing on March 1, 1995. Peti tions nominating a candidate must bear the signature of 25 members in geod standing of the AlabamaState Bar and be received by the secretary of the state bar on or before March 1, 1995. Any candidate for this office also must submit with the nominating petition a black and white photograph and biographical data to be published in the MayAlabama Lawyer. Ballots will be mailed bet\veen May 15 and June I and must be received at state bar head quarters by 5 p.m. on July 18, J995 . COMMISSIONERS Barcomm issionerswlll be electedby those lawyerswith their principaloffices in the following cir cuits: 1st; 3rd: 5th: 6th, place110. 1; 7th; 10th, places no. 3 and 6; 13th, placesno. 3 and 4; 14th: 15th, placesno. I. 3 and 4; 25th; 26th; 28th; 32nd;and37th. Additionalcommissioners will be elected in these circuitsfor each 300 membersof the state bar with principaloffices therein. The new commis sionerspositions will be determinedby a censuson Marchl , 1995and vacanciescertified by the secre tary on March15, 1995. The terms of any incumbentcommiss ioners are retained. AlI subsequentterms will be for three years. Nominationsmay be made by petition bearing the signaturesof fivemembers in goodstanding with principaloffices in the circuit in which the election will be held or by the candidate's written declara tion of candidacy.Either must be receivedby the secretaryno later than 5 p.m. on the last Fridayin April (April 28, 1995). Ballotswill be preparedand mailedto membersbetween May 15 and June l, 1995.Ballots must be votedand returned fi p.m. on the secondTuesday in June (June 13. 1995)to state bar headquarters. 8 1JANUARY 1995 THE ALABAMALAWYER LEGISLATIVEWRAP-UP By ROBERTL . McCURLEY,JR. The new Legislature orientation session January 10, 1995 ing lawsuit involving equity funding of \\lhen all the votes have finally been with the inauguration held Monday, schools. Governor-elect James promised counted, the Legislaturewill find itself January 16, 1995. Some of the first the Legislaturethat they would be pre with 39 new House members and 14 items of business will be to develop leg sented with ethics reform legislat ion new Senators; six of the Senators are islative rules, elect officers and receive and also a revamping of the selection first-timers in the legislative process. committee appointments. The Legisla processof judges. These 45 brand new legislators met at ture will also receive the declaration of Attorney General-elect Jeff Sessions the LawCenter in Tuscaloosafor an ori results of the elections for constitution- promised legislation that would shorten entation December7-9, 1994.They were the time from arrest to trial to 90 days, joined by the returning legislators to similar to the federal system. He stated hear about the legislative process, the that he recognized there would be a state's financial condition, litigation phase-in period. Currently, ti me stan involvingthe State of Alabama, and fed dards show that a felony is disposed of eral mandates which have been imposed on the average of 270 days after indict on states due to the cutting back of fed ment. Lt. Governor-elect Siegelman erally financedprograms , as well as the promised that the Senate would be challenges for the next four years. They more accessible to the public , and were addressed by Governor-elect F'ob promised major reforms lo make the James, Lieutenant Governor-elect Don legislativeprocess work better. Siegelman and Speaker of the House of F'or further information write Bob Representative.s Jimmy Clark. Mccurley, Alabama Law Institute, P.O. This orientation, the sixth held since Box 1425, Tuscaloosa, Alabama 35486, 1974, was attended by over 130 legisla· or call (205) 348-7411, fax (205) 348 · tors. 841I. • Lawyerscomprise 13 of the 35 senato rial positions, but only 12 of the 105 seats in the House of Representatives. These law graduates come from eight Robert L. Mccurley , J r. law schools. Nine lawyersattended the Robert L t.ie:Curley.Jt University of Alabama; six, Cumberland Is the directorot lho School of Law; and five, Birmingham Alabamal aw Ins:rnu te e1I.he Unive rsityof School of La1v.There is one each from al officers.In the event of a contest, the A?abama.He received Jones La1vSchool, Miles Law School, Legislature in jo int assembly must r.s...-,dergraduate and Harvard Law School. Catholic Universi determine any contest for these offices. law degrooshotn the University ty, and Boston University, In addition to the annual budgets, the The Legislature ,viii convene for an Legislaturewill have to solve the pend- Tl:I.EPHONE FACSIMILE (205) JZB-9111 (20;) J26-Hl6 RichardWilson & Associates ANNA LEE GIATIINA Registered Profession al ATTORNEY· M~";\!6EROF ALABAMABAR S INCE1987 Court Reporters Annn Lee Gi-:tnirui,P.C. The Pl.,::iBui lding :.ti M :1nn0Ji3 Office Pa&: 804 S. Perry Street Suue 218 · 2 l 12 Etevc,uh A~ n.ucSourh Montgomery, Alabama 36104 Blnnlngh.1m,Alab:un::1 3S205 R.&SEARCH• IDHEJ'\\'Jt!TlNG • \\'ESTI.AW • ASSISTANCEL''C A'SEP'REl'ARATIO..~ 264-6433 ~- ...... _ ... ,..-.. .. _,..., ...... ~-·---'lo_,...,_ . THE ALABAMALAWYER JANUARY1995 /. 9 ABOUTMEM BERS, AMONG FIRMS ABOUT MEMBERS ing of his office at JOI Bob Wallace Montgomery, Alabama 36101 and 4161 Avenue, Suite C, Huntsville. Alabama Carmichael Road, Montgomery 36106. 35801.Phone (205)533 -9991. Phone (334) 262-7200,271 -1819. E. Kenneth Aycock, formerly with & M. Hubbard,Smith, Mcilwain & Brakefield, E. WraySmith. formerly of Webb Eley, Darla T. Furman and Bruce Pitts announcesthe openinghis officel ocatedat announces the opening of his office at announce the formation oi Furman & 312 MontgomeryStreet. Suite 210, Mont 2113-B Uni\lersityBoulevard, P.O. Box Pitts. Officesa re located at 200 W. Court 21134, Tuscaloosa , Alabama 35402. gomery,Alabama. The mailingaddress is Square, Suite 748, Huntsville, Alabama Phone (205)752 -7788. P.O. Box 4386. Montgomery, Alabama 35801.Phone (205)534 -6410. 36103-4386.Phone (334) 263-5611. Elizabeth Potter Graham, formerly Jack B. Hinton, Jr., formerlyof Rush managing attorney of LegalAid Society Michael G. Strickland announces the ton. Stakely. Johnston & Garrett, is now with Carpenter & Gidiere. Officesa re of Birmingham, Inc., announces the opening or his officeal 420 S. Lawrence located at 904 Union Bank Tower, 60 opening of her office located al 3600 Street, P.O. Box563, Montgomery,Alaba Clairmont Avenue, Birmingham, Alaba ma 36101-0563.Phone (334 ) 269-3230. Commerce Street. Montgomery.Alaba ma 35222. The mailing address is P.O. Leigh A. Bradley, formerly Special ma 36104.P hone (334)834 -9950. Box 12422, Birmingham 35202-2422. Assisi.antU.S. Attorney in the MiddleDis Darrell L. Carhvright and Allan L. Phone (205) 323-5961. trict of Alabama. was appointed by the Armstrong announce the formation of President and sworn in by the Secretary Cartwright & Armstrong . Offices are Stephen H. Jones announces the relo locatedat 3800 Colonnade Parkway.P .O. cation of his office to 2205 Morris of the Navyas the Principal DeputyGen eral Counsel of the Department of the Box 43446. Birm ingham , Alabama Avenue, Birmingham, Alabama35203. Phone (205)251-6666. Navy.Bradley is a 1982 admittee to the 35243. Phone (205)969 -5900. AlabamaState Bar. Thomas Troy Zieman, Jr. , Jerome E. Miles Logan Brandon, formerly wilh Charles C. Elliott announces the relo Speegle, Thomas P. Oldweiler, Robert Lammons & Bell, announces the open- cation or his office to 956 Montclair Gerald Jackson. Jr. , and Anthony M, Road, Suite 108, Birmingham, Alabama Hoffmanannounce Lheformation of Zie 35213. The mailing addressremains P.O. man, Speegle, Oldweiler & Jackson. Box 530893, Birmingham 35253-0893. Officesare locatedat 3200 First National 1995 BAR Phone (205) 595-9400. Bank Building. 107 St. Francis Street, DIRECTORY JoAJisonTaylor announces the reloca Mobile, Alabama 36602. The mailing tion of her officesto 215 N. 21st Street, address is P.O. Box ll, Mobile 36601. Phone (334)694-1700. Please check your address Suite 903, Birmingham,Alabama 35203 . Phone (205) 328-2606. L. Sharon Egbertannounces that Lora and te lephone number in the Richard C. Bentley is an administra Lea Johnson has joined the firm as an current (1994} edition of the associate.Offices are located at Houston Alabama Bar Directory.I f any tive law judge with the Social Security Administration, Officeof Hearings and Place, 119 S. Foster Street, Suite 103. thing is incorrect. mai l or fax AppeaJs.His office is located at 770 S. Dothan. Alabama 36301. Phone (334) changes by February 15, 1995 McDonough Street. Room 109, Mont 702-0502. to: gomery, Alabama 36104. Phone (334) J. Ca.lien Sparrow and Patrick JI!. 223-7769. Lavette.former ly of Hare. Wynn,Newell Alabama State Bar E. Ray Largeannounces the relocation & Newton, announce the formation of Attn: l\1embershipServices oi his office to New South Federal Sav Sparrow & Lavette. Officesare locatedat Brown Marx Tower, 2000 l st Avenue, P.O. Box 671 ings Bank Building, 4th Floor, 215 N. 21st Street, Birmingham , Alabama North, Suite 940. Birmingham. Alabama Montgomery, AL 36101 35203.Phone (205)252-4111. FAX (334) 261-6310 35203-3776. Phone (205) 328-9650. Randolph B. Walton and Allen A. Ritchie announce the formation or Wal Anything received after that AMONG FIRMS ton & Ritchie. Officesare located at 80 date will not be reflected in the Saint MichaelStreet, Staples Pake Build 1995 directory. Please check Randolph B. Moore, Ill , Michael R. ing, Suite 304, Mobile,Alabama 36602 . Whiteand Bruce 8. Stone announce the your information today! The mailing address is P.O. Box 470. formation of Moore, White & Stone. Mobile 36601-0470. Phone (334) 433- Offices· are located al 22 Scott Street, 1737. IO I JANUARY1995 THE ALABAMALAWYER W. Lewis Garrison, Jr. and Kathryn associated with the firm. Offices are North Street, Talladega, Alabama 35160. H. Sumrall , both formerly of Corley, located at 200 Clinton Avenue, West, The mailing address is P.O.B ox 275, Tal Moncus & Ward. announce they have Suite 800, Huntsville, Alabama 35801. ladega 35160. Phone (205)362-2386. merged with K. Stephen Jackson and Phone (205) 534-3463. Engel, Hairston& Johansonann ounces will practice as Jackson . Garrison & Morris, Cloud & Conchin announces that Nathan R. Norrishas become an asso Sumrall . Offices are located at 2420 that Clinton C. Carter has become an ciate. Officesa re located at 109 N. 20th Arlington Avenue, Birmingham, Alaba associate. Offices are located at 52 J Street, 4th Floor, Birmingham, Alabama ma 35205.Phone (205)933-2900 . Madison Street, 2nd Ploor, Huntsville, 35203.Phone(205)328-4600. H. Jerome Thompson announces the Alabama35801. The mailing address is J\lcRight,Jackson , Donnan, J\lyrick& association of Sean D. Maste rson . P.O. Box 248, Huntsville 35804. Phone Moore announces that William T . Officesare located at 15086 Court Street, .(205)534--0065. McGowin,IV and Randall Scott Hetrick Moulton, Alabama.The mailing address Cabaniss, Johnston, Gardner, Dumas have become associated with the firm. is P.O. Box 593, Moulton 35650. Phone & O'Nealannounces that Lisa J. Wathey, Officesare located at 1100 Pirst Alabama (205)974 ,3007. David C. Skinner and James T. Pugh Bank Building, P.O. Box 2846, Mobile, Gerard J. Durward and Terry M. have become associates of the firm. Alabama36652 . Phone (334)432-3444. Cromer announce the formation of Dur Offices are located at Park Place Tower, Wainwright & Pope announces that ward & Cromer. Offices are located at 2001 Park PlaceNorth, Suite 700, Birm George JI!. Vaughn has become associat 1150 Financial Center, 505 20th Street, ingham, Alabama 35203. The ·mailing ed with the firm. Officesh ave been relo North, Birmingham, Alabama 35203. address is P.O. Box830612 , Birmingham cated to 2 Metroplex Drive, Suite 305, Phone (205)324-6654. 35283-0612.Phone (205)252 -8800. Birmingham, Alabama 35209. Phone Holt, Cooper & Upshaw announces Merrill , Porch , Dillon & Fite (205)802 -7455. that Kelli Hogue-~1auro has joined announces that Robert M. Field, former Lehr , Middlebrooks & Proctor the firm as an associate. Offices are district attorney for Calhoun and Cle announces that Julie S. Scharfenberg located in the Frank Nelson Building burne counties, and William J. J\liller has become an associate. Offices are at 205 N. 20th Street, Suite 1020, Birm have joined as associates. Offices are located at 2021 3rd Avenue, North, Suite inghan1, Alabama 35203. Phone (205) located at SouthTrust Bank Building, 300, Birmingha m, Alabama 35203. 322-4551. 1000 Quintard Avenue, Anniston, Alaba Phone (205)326-3002. • ma 36201. Phone (205)237-2871. Leitman, Siegal, Payne & Campbell announces that Charles M. Elmer, John Gobelman & Love announces that O. Joseph Kubiszyn, David M. Loper and Jllark Zamora, formerly of Rumrell & Johnson, has joined as a senior associate. Th omas A. Edenbaum have become TED DASHER& associated with the firm. Offices are Offices are locatedat SunBank Building, : == locatedat 600 N. 20th Street, Suite 400, 200 W. f'orsyth Street, #1700, Jack L..._iFASSOCIATES Birmingham, Alabama 35203. Phone sonville, Florida 32202. Phone (904) (205)251 -5900. 359-0007.Zamora is a 1988 admittee to HEWLETT-PACKARD the AlabamaState Bar. COMPUTERSI PERIPHERALS I REPAIRS Dominick, Fletcher, Yeilding, Wood Ford & Hunter anno unces that & Lloydannounces that Jim Mclauglin Christa L. Hayes has become an associ A COMPLETELINE OF USED AND and Hunter Compton, Jr. have become ate. Offices are located at 645 Walnut REFURBISHEDHP EQUIPMENT associated with the firm. Offices are Street, Suite 5, Gadsden,Alabama 35902. TO FILLALL OFYOUR located at 2121 Highland Avenue,Birm The mailing address is P.O. Box 388, COMPUTERREQUIREMENTS. ingham, Alabama 35205. The mailing Gadsden.Phone (205)546-543 2. address is P.O. Box 1387, Birmingham LASERPRINTERS , SCANNERS,DISK DRIVES, 35201. Phone(205)939-0033. Clark, Scott & Sullivan announces DESKJETPRINTERS, PLOTTERS, PC'S AND that Michele C. O'Brien and Keith S. 9000SERIES WORKSTAT IONSARE READY Tanner & Guin announces the associ J\liller have become associates. Offices FORI MMEDIATEDELIVERY. CALL OUR ation of Blake A. Madisona nd Joseph K. are located at f'irst Alabama Bank Build TOLLFREE NUMBER FOR AVAlLA61LITY Beach. Officesare locatedat CapitolPa rk ing, JOU,Floor , P.O. Box 1034, Mobile, ANDPRICING. Center, 27 l l University Boulevard, Alabama36633 . A FULLYS TAFFEDREPAIR Tuscaloosa,Alabama 35401. Phone (205) Rosen, Cook, Sledge, Davis, Carroll & DEPARTMENTJSALSO AVAILABLE FOR 349-4300. Jones announces that Paige JI!. Carpen ALL OFYOUR PRINTER I PLOITTR Clark & Scott announces that Albert ter has become associatedwith the firm. SERVICENEEDS. AshleyAyers , MichaelB. Odom, Michele Officesa re locatedat 1020 Lurleen Wal 41172NDAVENUES0UTH C. O'Brien and Keith S. Miller have lace Boulevard . North , Tusca loosa, BIRMINGHAM, AL 35222 become associates. Officesare locatedin Alabama3540 1. Phone (205)345-5440. Mobileand Birmingham,Alabama . Gaines. Gaines & Rasco announces S00-638-4833 Watson, Gammons & Fees announces that Thomas M. Little has become an 205-59:1.-474'7 that Samuel H. Givhan has become associate. Offices are located at 127 FAX 591-:J..iOS THE ALABAMALA \\ 'YER JANUARY1995 / 11 BUILDINGALABAMA'S rJ DALLA S I COUNTY I COURTHOUSES I • I' l. DALLAS COUNTY COURTHOUSE By SAMUElA.RUMORE, JR. pince was loc.itedon the Alaba· The following continues a history of ma Riverupstream from Caha· 11/abamo'scounty courthouses-their ba. Both of these locations. origins and some of the people who Cahaba and the Bluff, subse contributedto theirgrowth. The Alabama quently ser.-edas county seats Lou,yerplans lo nm onet:01D1ly's story 01 of DallasCounty. etJChissue of the ma.gazine.ff you hace On March3. 1817.Congress any photographs of early or present created the AlabamaTerritory. courthouses. please forward /hem lo: The Territory contained seven Samuel ,I. Rumore. Jr., Miglionico & counties that wert previously Rumort!.1230 Brown Marx Tower.Binn part of the MississippiTerrito ing/lam.Alabama 35203. ry. Withinone >"tar,due to the arrivalof more settlers, 13 new counties were created. Dallas County was establishe d on DALLAS COUNTY l'ebr11a,y 9, 1818 as one of the 13. The countywas named for he first contact of Euro AlexanderJames Dallas. peans with present-dayDal Dallas was born on the las County probably look island of Jamaica on June 21. II plact in the summer and 1759. lie studied in Edin fall of 1540 when lltrnando DeSoto burgh, Scotland and London. passedthrough on his wayto the Indian England. In 1783.he came to town of Maubila.The DeSotochronicles Philadelphiaand practicedlaw relate that DeSotoarrived at a smallvil there. He held public office in PmmrDal/Juea.mr,Court,.,,.,_ lage named ·casiste", which many Pennsyl\'aniaand was named ------believewas the original site of Cahaba. located where the Cahaba River joins the Alabama. During the next century and a half, U1erewas only limited contact between Europeans .ind the native population. However.an early map by the Prench cartographer D'Anville in l 732 marked another important site in what is now Dallas County. French Governor Bienvillefrom Mobilehad encountered the AlibamoIndians at a bluffoverlook ing the Alabama River. This locale became known as "Ecor Bienville"on D·Anville·smap. This place was later called the ..High Soap Stone Blufr by the few white selllers in the area. In l 815 a pioneerfrom Tennessee,Thomas Moore, settled M the site and the area became known as Moore's Bluff. This Da.lfasC'Otnllp Co11rlho11se,auw.x. 1979 12 /JANUARY1995 1'111~ AI..Al3AMALAWYER Secretary or the Treasury by with 12windows on each front ol President James ~ladison. serv- the structure. The contract was ing in that capacit)•from 1814to to be completedon or before the 1816. He recommended the first Mondayin June 1820. incorporation of a new United . ., Davidand Nicholas Crocheron States Bank. and when he left were low bidders and received office,the United States Treasury the contract for S9.000.The time had a surplus of S20 million. I for completion was utended Dallas died on January 14. 1817. • until August I. 1820. The second One year later the Alab.1maTer· state legislativesession of Alaba· ritorlal Legislature named a ma, the first held in Cahaba, county in Alabamafor him. convenedo n November6, 1820. As a sidenote to history. his When DallasCounty was creat son. Ceorge M. Dallas. followed ed in February 1818.no town of his father into public service. Cahaba existed. The Jeg.islative George was vice-presidentof the act specified that courts would UnitedStates from 1845 to 1849 be held at the mouth of the under President James K. Polk. Cahaba River or due to the lack The MexicanWar took place dur· of necessary bui ldings, the ing this administration. l)allas. courts might adjourn to "some Texas was named for th~ vice conven ient place cc>ntiguous president. Thus, Dallas County, thereto". The first court in Dallas Alabama,and Dallas, Tex.,s"'ere County was held at the home of named respectively for a father Captain John Howard in June and a son. 1818. Over the )'tars other pri When the Alabama Territory vate citizens were paid for the was created by Congress, St. use of rooms in their homes for Stephens became u,e territorial holding court. capital. ll was a small bul nour On December3, 1819, the town ishing town in Washington of Cahaba was incorporated. On County. However. Alabama had , ~ I December 13, 1819, Cahaba was to establish a permanent capital officially named the county seal of as it moved toward statehood. Dallas County. Thus, the new On ~·ebruary13. 1818. the legis to1onwas at the same time the lature appointed a commission slate capital and tJ,e capital of its to ,e lect the most central and county. Cahaba rapidly gained in eligible location for the seat of prominence. in April 1825, for government. This committee example,the town hosted a lavish reported back to the legislature banquet for the visiting General that the capital should be local· LaFayetteduring his tour of the ed at the mouth of the Cahaba UnitedStates. River where it joins the Alaba However, Cahaba's rapid rise ma. The legislature approvedth is report lots. The public sale took place during soon faltered.Cahaba's geogra phical sig on N1Jvember2 1, 1818. This selection the fourth week of May in 1819. One nificancewas its location al the conflu was a victory for the promoters of south hundred eighty-two Jots were sold for ence of two rivers. The Cahaba River Alabama.A second recommendation. to S 123,856. One-fourth of this amount encircled Jhe town on two sides, and the placau representatives from the Ten was collected in cash. The proceeds Alabama bordered it on a third. Soon nesSte Valley,named lluntsville as the from the sale were earmarked for the after its creation. flooding and high temporary capital until the new capital erection of necessarypublic buildings. waters became a frequent problem. And, city could be established. Thus, when The governor proceeded with a due lo all the standing water. there was 1\lnbamaatta ined statehood in Decem request for bids for the flrsl "permanent" a fear of yellow fever and similar dis ber 1819,the first stale legislative ses statehouse of Alabama.No contemporary eases during the summer "sickly sea sion took place in Huntsville. description after construction and no son". It was reported that many Governor William Wyatt Bibb was pictures exist oi this building.The adver members of the bar and even certain authorized by the legislature to secure tisement for bids called for a brick struc justices refused to attend supreme court the suggested land for a capilill from the ture. two stories high. 58 feet long, 43 sessions due to their apprehensions United States government, to have a feet wide, with each story 12 feet in about sickness. town to be called "Cahaba" surveyed height. Two chimneys and eight win Perhaps the legislature that selected Into lots. and to advertise nnd sell the dows were to be included at each end, Cahaba as the "permanent" capital fore- TtJJ::ALA8AMA LAWYER JANUARY1995 / 13 saw these problems. Perhaps ment on removing the county that legislature knew that the seat. The election result did not Indian word "Cahaba" meant favor removal,so DallasCounty "water above" referring to the leveled the damaged former river's penchant for frequent statehouse at Cahaba and used nooding. In any event, the Act the bricks and other materials naming Cahabathe capital con for a new courthouse structure. tained an escapeclause. It stated Unfortunately. the builder could that legislative sessions would not complete the job quickly be held in Cahaba beginning and a new courthouse was not from 1820 through the first ses finished until late summer or sion of the legislature in 1825. early fall of 1838. The new Afterthat time the capital could courthouse was two stories in be removed. height. It was locatedwithin the There was much politica l enclosure of Arch Street at the maneuveringto move the capital corner of Vine and First North Fi'rstSelma courlhoust! during the legislative session of streets. 1825.Several s ites for the capital Bebueen 1840 and 1860. had supporters including Selma. Cahabareached the height of its Montgomery, Wetumpka, Centre prosperity, attaining a popula ville,and Tuscaloosa.On Monday, tion of approximately 5,000. December 12,, a proposal in the After 1860, Cahaba began to House to locate the capital in decline, ultimately becoming a AutaugaCounty (Wetumpkawas ghost town. The reasons that part of Autaugaat that time) lost Cahababecame a ghost town are by vote of 31 to 30. The next daya numerous. The to1vn was by vote was taken to remove the passed by new railroads. River capital to Tuscaloosa. This lime traffic declined. The Civil War the vote was 38 to 26 in favor of depleted the male population. removal.All state officeswould be many of whom left to join the moved to Tuscaloosa by June I, "Cahaba Rifles". a local regi 1826. ment. The cotton trade ended The legislature gave the Sen and a cotton warehouse was ate doorkeeper the duty of col converted into the second lecting and storing all moveable largest prison in the South . state property in the senate known as ''Castle Morgan". chamber, and giving the key to Finally , another devastating that room to the state treasurer. flood inundated the town in The treasurer was to sell all March 1865. Following this items not moved to Tuscaloosa nood the federal prisoners were and was specifically authorized paroled,and the end of the Civil to sell the statehouse itself for War. with the freeing of the not less than $3,000. slaves, left the area without its Although Cahaba was no usual source of labor. longer the State capital, the An Act of the legislature on town refused to die. It became December14, 1865called for an the leading cotton shipping port Courlhouseafler 1926 annex was added. A'ote changes in rooflines. election on removalof the coun on the Alabama River. Large ty seat from Cahaba to Selma. warehouses and mercantile The vote, taken on the first enterprises were established.O ld homes stoodto DallasCounty for use as a court Monday in May J 866. approved the were repaired and new residences of house. Then a noodon March 26, 1833 move. By the 1870s, most of the citi fine architectural design were erected. severely damaged the structu re. The zens in Cahaba had moved away also. And Cahaba remained the county seat courthousecould no longerbe used,and By 1900 most of the structures had town of DallasCounty. so once again the courts were housed in deteriorated, burned, or been moved. After the capital relocated to Tus temporaryquarters in Cahaba. Pew buildings survived past 1930. caloosa.the State of Alabamawas not able On December7, 1833, the legislature Today plans are being made for a state to sell its fonner statehousebu ilding.On approvedan election to be held on the historical park at the site of Alabama's January 13, 1830, the state donated the first Monday in February 1834 for the nrst state capital, but the area remains old capital buildingand the lot on whichit purpose of determining public senti- only a ghost town with dirt roads and a 14 /JANUARY1995 THBALABAMA LAWYER Selma means a "high throne", and the particular poem considered by King referred to Selma asa royal fortress. WilliamRufus l TlIE ALABAMA LAWYER JANUARY1995 / 15 purpose of lhe institute \vas to educate office. and an office for the clerk of the On Sunday. July 7. 1957, the clock orphans and the children of indigent city court. One-hair of the third floor tower of U1eDallas County Courthouse Masons. The venture was ultimately a was used for a courtroom. The other collapsed into the building. causing financial failure, lhough, and the build half was used for jury rooms with one extensive damage. Luckily no one was ing was foreclosed. room set aside for a law library used by hurl because the disaster took place on During the Civil War, the rormer the Dallas County bar. This buJlding a Sunday. Five days previously. light school was converted into a hospital and served as the courthouse until the ning had struck the courthouse. The served sick and wounded Confederate spring of 1902 when a new courthouse county contended in a lawsuit that this soldiers. Perhaps it was this humanitari was completed and occupied. act of nature caused the crash. Insur an purpose that persuadedUnion Gener In later years the building reve,ted lo ance companies believed that faulty al James Wilson, who captured Selma, its former uses. In 1904it again housed construction and the addition of air to spare the building. Shortl)' after the a school. the Selma Military Institute. conditioning units weakened the struc war, the City or Selma purchased the ln 19Il the trustees of the Henry W. ture and caused the damage. building and offered il lo Dallas County Vaughan estate converted the building Regardless of the true cause, Dallas for a courthouse if the county seal into the VaughanMemoria l Mospital.It County decided to rebui ld the court · wou ld be moved. As previously remained a hospital until 1960 when a house on Lhe same site. A modern described,lhe move look place in 1866. new Vaughan Hospital was built. The design was chosen and Warren, l(night This courthouse is a three-story red building stood vacant for almost ten & Davis from Birmingham were archi brick Creek Revivalstructure. It is rect years and became a target for vandals tects for the projecL Cooper Brothers angular with four Ionic columns rising and vagrants. Construction Co., Inc. of Selma served three stories to support a pedimentabove In 1969 the City or Selma repurchased as contractor. a central portico. The front facade has the property that it owned over 100 This new courthouse is three stories both a second- and third-story balcony. years previously. With the assistance of in height with a basement and a mod The first floor of the structure housed Dallas County . the Selma Housing ern clock lower. The 1926 annex was the probate judge's office, an office for Authority. and a federal grant, the build retained but modernized. The project the tax collector, and one for the sheriff. ing was renovated and renamed ..The was completed and the building occu The second floor contained the register Historic and Civic Building··.ll was list pied in April 1960, and cost more than in chancery office, the circuit clerk's ed on the National Register of Historic one million dollars. ll was on U1esteps Places on June 20, J 975. Today the of this courU1ousewhere demonstrators structure is known as the Joseph T. led by Dr. Martin Lulher King, Jr. con Smitherman Historic Building. ll was fron ted law enforcement officials in MEDICAL/ DENTAL named for the long-time mayor of 1965 in an attempt lo register to vote. MALPRACTICEEXPERTS Selma. Joe Smitherman. who played a The demonstrations and protests in major role in preserving and restoring Selma led to the passage or the 1965 the building. It now serves as a museum Voting RightsAct. and civic meeting place. The City o( In 1979. DallasCou nty added another Selma must be commended ror saving annex to the courthouse building. Al this historic structure. this lime the architect was \Viall, Wil Accordingto the census o( 1870, Dal son, & Cole, Inc. and lhe general con las County was third in population in tractor was Andrew& Dawson.The cost Alabama following Mobile and Mont of the annex was approximately gomery. By 1880. Selma was the fourth $360,000. This anne~ is brick and of largest city in the state. Befitting its sta modern design. It houses the commis tus and its wealth. and due to the sioners' court. circuit judges' offices growth of the county, a new courthouse and courts. and other offices. • was needed. Also,it was relt that the old Masonicbuilding was too far away from The author gratefully acknowledges the business center or Selma. A new assistance given lo him in the prepara courthouse was then planned for the tion or this article by attorney William northwest corner of Alabama Avenue J. Bryant of Birmingham. formerly oi and LauderdaleStreet. Selma; allorney Ralph N. Hobbs of The cornerstone was laid al 11 a.m. Selma; and author l 16 / JANUARY1995 THEAI../\BAMA LAWYER BAR BRIEFS • The Institute of State and Law of • M. Clay Alspaugh and W.A. Kim Handbook, released for publication by the Russian Academyof Sciences offers brough, Jr. recently became Fellowsof the Michie PublishingCompany . a one-year master's program in Russian the American College of Trial Lawyers. lawin Moscowto qualifiedU.S. st udents. Membership, which is a position of • Macon County Dist rict Ju dge The master's in Russian law, comprised honor, is by invitation of the Board of AubreyFo rd, Jr. was recently appointed of 1,100hours of instruction during two Regents. to be the 1994-95co-cha irperson of the academic semesters,is designedto be an Alspaugh is a partner in the Birming Committeeo n Rural Courts of the ,\BA intenseand practicalprogram to provide ham firm of Hogan, Smith & Alspaugh, National Conference of Special Court students with the ability to work effec and is a graduate of CumberlandSchool Judges. tivelyi n the Russian legal and adminis of Law. The National Conference of Special trative system. Admissionis limited to 25 Kimbrough is a partner with the firm Court Judge.sis compesed of hundreds students who have received a degree of Turner, Onderdonk,Kimb rough and of judges from across the nation and froman ABA-accreditedla,v school. Howell, with offices in Chatom and is part of the ABAJudic ial Adminislra· A student will study all areas of Rus Mobile.He is a graduateo r the University tion Division. The mission of the con sian law with the professionals of the of AlabamaSchool of Law. ference is to represent special court Institute.If a student doesnot speak Rus • GregoryS. Cusimano was recenlly judges to the legal profession and the sian, an intensiveRussian language pro designateda Diplomat of Trial Advocacy public; to promote a representative , gram is required. by the NationalCo llege of Trial Advocacy. educated and sensitive judiciary provid TI1e Institute of State and Law is Rus· He is the first lawyerin Alabamaand one ing equal justice under the law; and to sia's oldest legal "think tank" and a unit of only nine lawyersi n the U.S. to have assist judges in meeting challenges fac of the prestigious Russian Academyof receivedth is distinction.H e practices in ing the judiciary. Sciences. Gadsden with the firm of Floyd,Keener. Judge Ford has been on the bench For more information,contact: Cusimano & Roberts. since 1977and is a graduate of Howard Prof.AM . Dula, Registrar In addition, he and Michael L. Roberts, UniversitySchoo l or Lawi n Washington, 5718Westheimer , Suite 1515 or the same firm, have recent ly co DC.Judge Ford is also a member of the Houston, TX77057 authored the 1994 Cumulative Supple AlabamaS tate Bar Committeeon Alter (713)977-9693 ment of the Alabama Tort law nativeDisp ute Resolution. • Family Law Section AlabamaS~t e Bar June2 & 3, 1995 Perdido Beach Resort THE ALABAMALAWYER JANUARY1995 I 17 OPINIONSO F THE GENERALCOUNSEL By ROBERT W NORRIS, general counsel UESTION: t he firm for collections work. My questions are these: "This letter concerns a business enterprise I am l. May I inform the providers I wish to solicit on my letter currently in the process of forming and my need head, and if so. do I need to providea disclaimer pursuant lo (or a formal opinion from the bar associationcon• Rule 7.2 of the Codeoi ProfessionalResponsibility? mceming my solicitationfor clients of said business. 2. If I am unable to solicit this business on my letterhead "Earliu this year, I was contacted by -ra1 persons in t~ and do it on the letterhe.1dof the new enterprise (lentati\oely medical/dental field (pro\Jiders) 10 handle their collection called The Dental Co-op. Inc.I will I have to pul the disclaimer accounts. It occurred Lo me that these persons might derive on said solicitation pursuant to Rule 7.2. simply because I am great benefits from a data bank which would in Lum provide an attorney? them wllh informationconcerning any pastdue accounts their "Your opinion would be greatly appreciated as I am getting prospecllve patients owed lo providers in the general geo· geared up with U1is project and do not want to violate any pos graphical area, as well as the stale. sible rules concerning solicitation. I do need an officialop inion "The business wou_ld operate very similarly to an ordinary for my files as quickly as time would permit." credit bureau, except it would be limited to information given to me by the providers.not any other businesses.The provider NSWER, QUESTION ONE: would contact me prior to accepting the person as a patient to You may inform the providersyou wish to solicit see if they ha\-eany outstanding accounts with other pCO\Jiders on your letterhead. Pursuant to Rule 7.2(e), Rules in the geographicalarea. I would charge the p!'O\~dera yearly of Professional Conduct, your solicitation letter (ee for this service.Absolute!) • no collectionswould be given to must indude the "disclaimer: my lawas this new businesswould nol operate as a ·feeder' for ISCUSSION: Tohe Rules r Professional Conduct allow you to use the proposed form or targeted mail solicitation to contact providers about your credit information mm"network." Your participation must be restricted to that or an employeeof the "network " The DisciplinaryCom ~ MoreChapter 13 mission haspreviously held in RO.SS-05lhat "As a stockholder or partner in the computer servicescom TrusteesWant pany you could not ethically act as manager of its debl collec tion and if the debts arc not collectedby the methods ethically employedby a typical collection agency (SeeSta le u. Dunn uncl PLAN13! Braclstreel. Inc.. 352 P. Supp. 1226, affirmed 472 Ped.2d 1049 and State v. AlabamaAssociation of Credit Executives.338 So. 2d 812), as an attorney file suit against the debtor (or the claim since }'OU\\'Ould be using another business or professionas a ~ MoreBankruptcy cloak for solicitation or legal work or as a feeder to }'OUT law practice." The Commissiontherein reasoned that as part owner of said LawyersSubmit business, the lawyerhad a ·reeder· for his law practice which activity and/or arrangement wa.s prohibited by Disciplinary PLAN13! Rules 2-t03(A)(l ) and (4). The Disciplinary Commission has consistenlly held that DEMOD ISK • REFERENCES • MONEYBACK G UARANTEE direct targeted maiI solicitation by a lawyer is permissible pro vided that the mailed solicitation letter complies with the applicable Rules of Professional Conduct, including the "dis CALL800 BEST-7-13 claimer· provisionor Rule 7.2(el. SSWER, QUESTION TWO: The answer to Question One. allowing use of ACHAP7••13 yo~r lawy~rl etterhead, preterrnits considerationof Specioliy Softwore• 1 111S . 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Contributions tribution requirements may result in distribution rules applicable to made to an individual's IRA may be certain onerous economic burdens and Tindividual retirement arrange availableas deductions against income C\'tn penalties.• ments or lRAsand focuseson some of to the owner of the IRA but certain the benefits and problems which can deductionlimits apply if the individual's Overview of the Minim um arise when an TRAis part of a decedent's adjustedgross incomeexceeds specified Distribution Rul es estate. amountsand the owner'sspouse partici· Once distributions from an IRAa re pated In a qualifiedemployer retirement required to begin, the IRA owner must Overvie w of IRA s plan.>Also. certain specializedIRAs can withdrawa certain amount during each An IRAis a generic term referring lo be used to recel~-elump sum distribu· }'tat or be subject to a penalty for insuf either an individualretirement account tions from an individual's employer ficient withdrawals.The minimum dis or an individualret irement annuity. An sponsoredqualified retirement plan. tribution rules require that the TRA individual retirement account is a trust Because IRAsare readily available to owner's interest in the IRAbe distribut· or custodial account establishedf or the individualsfor deductible contributions ed in its entirety (a) no later than the exclusive benefit of an individual and and, under other circumstances, for required beginning dale (generally, the individual'sbeneficiaries • while an nondeducliblecontributions as well as April l following the calendar year in individual retirement annuity is an depositoriesfor lump sum distributions whichthe IRA ownerreaches age 70), or annuity contract or endowment con from an employer-sponsoredqualified (b) beginningno later than the required tract issued by an insurance company retirementplan. an IRAcould potentially beginningdate during one of the follow that meets certain requirementsset out constitute a major asset of the individu ing four time periods: in the Internal RevenueCode and pro- , al's estate. Although many of the rules (l) the actual lifeof the IRAowner. mulgalcd by the Treasury Department. applicable to IRAsapp ly to qualified (2) Ihe combinedactual lifeof the IRA Basically, an IRA is lhe persona l reliremenl plans such as pension,profit equivalent of a moderately funded owner and the life expeclancyof a sharing.stock bonus and annuity plans, "designatedbeneficiary"; retirement plan that allows employees. as well.where an IRAcomprises an asset (3) a period not extendingbeyond the self-employed individuals and certain ofan individual'sestate an estateplanner other individuals(whether or not they should not overlook the application of lifeexpectancy of the IRAowner; or participatein qualifiedemp loyer retire the minimum distributionru les applica (4) a period nol extendingbeyand the ment plans such as profit sharing plans, ble to an LRA. The minimum distribu Iife expectancy of the IRA owner Keogh plans. simplified employeepen tion rules may havea substantial lmpacl and his "designated beneficiary." sions (SEPs),tax -sheltered annuities,or not only upon an IRA(Mner's retirement Thus, if the IRA owner has named a gO\.'emmentplans) to establishIRAs and planning such as withdrawalsfrom an beneficiary that, for purposes of the make annual contributions lo them. IRAby the owner during his or her life minimumdistribution rules, qualifiesas Individualscan contributean additional time, but also upon the ultimate distri a "designatedbeneficiary ; the designat $2,000of their compensationor earned bution of the IRAowner's estate at death ed beneficiary's life expectancy can incomefor an individualI RAor. if mar and upon any beneficiary of the IRA. affect (i) the lime period during which ried, can also contribute an additional Also,fail ure to satisfythe minimum dis- the IRAow ner's interest is distributed 20 I JANUARY1995 THEALABAMA LAWYEn and the amount of each distribution IRA owner's named beneficiary. and distribution. during the IRAowner's lifetime. and (Ii) upon the IRAowner's death. the recipi If an IRAowner designa tes a trust as a Lhep eriod after the IRAowne r's death ent or any remaining interest in an IRA. beneficiaryand the four criteria listed during which the assets remaining in For purposesof the minimum distribu aboveare not met, then the IRAowner the IRA must be distributedto the des tion rules, however,the trust itselfwill is treated as if he or she does not havea ignatedbeneficiary . not be the "designated beneficiary."Nev "designated beneficiary," and the IRA ertheless, if the followingrequirement$ distnl>utions that commenced during Who is a "Desi gnated are met in regard to a trust named as a the owner's life will have to be paid out Beneficiary " for "designatedbeneficiary," the beneficia enti rely either (i) du ring the IRA purpo ses of the Minimum ries o( t he trust will, for purposesof the owner'sactua l Ii fellme, or (ii) during a Distribution Rul es? minimum distributionrules, be treated period that is no longer than the IRA A "designatedbeneficiary" is any indi as "designatedbeneficiaries": owner's actuarially-determined life vidualdesignated as a beneficiaryunder expectancy.We will discuss below how the terms of the IRA,or. if the IRApro (I) the trust is a validtrust under state the four trust requirementslisted above vides, b)• the IRAowner's affirmative law, or would be valid if it were funded; might be met with respect lo a typical election specifyingthe beneficiary.and IRAand estate plan. who Is, upon the IRAowner's death or (2) the lrust is irrevocable: other specified event, entitled to the (3) the beneficiariesof the trust can be Overv iew of dlatri but ions remaining portion of the IRAowner's identified;and a fter death interest or benefit. According to the (4) a copy oi the trust instrument is Under the minimum distr ibution minimum distribution rules, only an prO\•idedlo the IRA custodian (e.g., rules, where distribution to an IRA individual may be a ''designated benefi the sponsorof the IRA). owner begin during the owner's life ciary.'' One exceptionto the "individual F'or purposesof the minimum distri time. but are not completed prior to the only" rule is applied to certain trusts bution rules, where there are multiple owner's death, the remaining interest resulting in the trust beneficiariesbeing beneficiariesof·a trust. the beneficiary must continue to be distributedat least treated as ·designated beneficiaries" of whose life expectancyis the shortest is as rapidlyas it would ha"e been under the IRA treated as the "designatedbeneficiary" the method of dislribution that was in While an estate may be named as a and that beneficiary'sI lfe expectancy is effect at the date of the IRAowner's beneficiary of an IRA, the estate will no/ utilized in determining the period or death.' When an IRAO\vner d ies before be a "designatedbeneficiary" for purpos es of the minimum distribution rules.• Some analysishere may be helpful.It Is not uncommon for a decedent to desig EXCELS IOR - LE GAL' S nate his or her estate as a beneficiaryon such items as a life insurance policyor other personaleffects. However. naming an estate as an IRAbeneficiary will not alter the period over which the IRA owner'sbenefits may be paid;that is. the lives of the beneficiaries of lhe estate willnot affect the period over which the IRAis distributed.The reason for this Is Ideal for Laser Printers quite obvious: If the IRAowner's estate ...... 1,000 Lett er hea ds Env elopes remains the named beneficiary or the In cludes: and IRA,distributions from the IRAcom • 500 Business Ca rds , 500 Plain Second Sh eets mencing during the owner's lifetime Also iflc/11des dies and a proof. will have to be entirely paid out over (ii 24 lb.• 25% C ouon, Laser Finish, White or Bamboo, the owner's actual life, or (ii) over a Recycled Bond S239 period that does not exceedthe owner's 24 lb.,50% Couon Law Bond,W hite, 83Jllboo life expedancy. The potential effect of and LaserWhite S249 namingone's estate as beneficiaryor the Crane's and Gilbert paper at additional cost IRA is to accelerate the pa)•menl or ...... income taJ FALL l994 ADMITTEES James TomlinsonCarr JrunesEarnest Fleenor. Jr. Paul MaassHolste in SU231lne Valeri•LaSh.iwn Aco(( JeffreyByron Carr Juhet Fleming 8.lrry Reid Holt John WesleyAdorns, Jr. CliruonChadwell Carter Joseph Thomasf'lood Emily ElonHornsby Ceorge Drury f'I01,-ers RichardMartin Adams MichaelAnthoni• Catilano John ThomasHonon Laural Col·•yAltnnder Robtrt Peter Catlrn.111 EarlThomas f'ort>es WilliamHml) ' Huffman,Ill MichaelDavid Anderson RichardLu Chan<:ey ThereseMarie Ford DavidAl~n liug),es MichaelRobert F orremr I , S~n Rtntt CullenAnderson Shellie RobinCherne, James WesleyHughes DonaldKeith Andress LeeEichelberger Childs EmilyDianne Vaughn Frost ToddElbert Hughes PhillipScott Arn.~ton EdwardRosamond Chri THE ALABAMALAWYER JANUARY1995 / 25 Blakt AlanMadlSQII Anna Cathryn Northington GregoryLee Schuck AndrewWIiey TunneU Franc.,. Rebe«.",Champion Culam Rllfiqueudd,n J=ph Trent Scofield Joseph R 26 / JANUARY1995 THE AI..ABAMALA WYER IAWYERS •IN THE• Reid Hamilton Harbin (1994) and FAMILYJohn W. Lowe (1970) and JonaU1an Robin Ii. liarbin (1967) (adm ittee and Blake Lowe (1994) (father and admittee) father) Liles C. Burke (1994) and Claud David H. Hayden (1994), Walter Hay Kelly A. McGriff (1994 ) and Charl es Burke (1968) (admittee and father) den, U1 (1987) and J on Hayden (1990 ) M. T. Sawyer , 11( 1954) (adm ittee (adrnittee and brothers) and cousin) l'oster Douglas Key (1994) and Dou Robert B. Stewart (1994) and Joseph Mary Marga ret Kendall Bailey (1994) glas L. Key (1974 ) (ad mitt ee and G. Stewart (1966) (admittee and and Judg e Robert G. Kendall (1963) father) ' father ) {adm ittee and father) Jo ho C. Pia zza {1994) and Limvood Rick Davidson (1994 ) and Kelly Ashley Ha le Rives (1994 ) a nd Oscar Bragan (199 1) (ad mitte e and cousin ) Davidso n (1994 ) (husband and wife H. Hal e, Jr . (1978) {admlttce an d admlttees) father ) THE ALABAMALAWYER JANUARY1995 / 27 lAWYERS •IN THE• Sunny Sma llw ood (1994) and Judg e FAMILYBre nen G. Ely (1994 ) and Kathryn T. M. Smallwo9d , Jr. (1963) (admittee J uucnian Ely (1994 ) (husband and and father } wife adm l\tees) John W . Adams.Jr. (1994) and Tori Kelli Hogu e-Mauro (1994) and Jeffr ey Joel S. lscnbeq: ( 1994), Bari G. Miller L. Adams-Burks (1990) (adm ittee and r. Mauro (1994) (wife and husband (1987 ) and Charles e. Miller (196 0) cousin ) admittees ) (admlttee , mother and stepfathe r) David Jeffn.,yBeaird (1994), James R9bert DaniclJosephSuWvan (1994), WilliamJ. Betsy L. Mo,1tgom ery (1994 ) and Beaii:d(19 79), Hugh Beaird (1959) and Sullivnn,Jr . (1949) and WiWainJ . Sulli• Robert Montgomery (l98Z) Sam L Sullivan.Jr. (1990) van, Ill (1975) (admittee, father and (admittee and brother) (admittee,cousin, unde and ll:lUSin) brother ) .Karen J. Pugh (]994) and Gaile ·rugh Brooks Pitman Milling {1994) and Frede ric Ransom (1994) and Jud ge Gratton (1984 ) (admit tee and sister) Judg e Bert W. Milllng,Jr. (19n ) Ralph D. Coo k ( 1968) tadmittee a"d (admittee and father) father-In- law) 28 /JANUARY1995 THE ALABAMALi\WYER LAWYERS •IN THE• Joel J>.S mith , Jr . ( 1994) and Maury FAMILYEll:whcth Dale Welch {19!14) and D. Smith ( 1952) (,1dml11cea nd uncle) Judge Sum Welch ( 1976) (admit tee and brother) Lclgh M. nuloncy ( 1994) and Scot'l Jcrrol yn I.. Mortin ( 1!194) and Gerald Ja mie M. llrnhsto n ( 1994) and James Dulaney ( 1993) (nchnlttee nnd M. Mnrtin (I 993) (admit tee and K. llrab~ton ( 1993) (aclmllt ee and husbJnd) brother) husbam.l) I.Isa J. llrown (1994) and Frnnklln J. Jani e l!nkcr Clark e (1985) , Robert Mark Sabel ( 199<1) and M. Wayne Brown ( 1988) (admit tee ;ind husband) Foster Johnston , Jr . ( t 994) and John Sabel ( 1968) (admltt~c ilnd rau,er) llakcr ( I 967) (mothcr, nllmlttee nnd uncle) FALL 1994 BAR EXAi\f STATISTICS OF INTEREST Number sitting ror exam ...... 502 Number certified to Supreme Court or Alabama ...... 357 Certlncatlon rate ...... •...... 71 percent Certification percentages: Umverslty of Alabama School of Law ...... •.•.. 94 percent Cumberland School or Law ...... •..•.••..• 87 percent Chief Ju,tl cc Sonn y Hornsb y (1960), B1rrningh3m School of Law .....•....•••.•...... 33 percent Emily H. Nchon ( 1994) and Ernest Jones School or Law ...... ••••••••••••••••. 42 percent Clayton I lorn shy, Jr . ( 1988) (father. MIies College or L1w ...... •...... A percent admlfl ee ,111CI brother) TMEALAflAMA 1..AIVYl::fl JANUARY1995 / 29 I OPPORTUNITIES The following in-state programs have been approved for credit by the Alabama Mandatory CLE Commis sion. However, infom1atiot1 is available free of charge on over 4,500 approved programs nationwide identified by location, date, or speciality area. Contact the MCLE Commission office at (334) 269-1515, or 1-800-354-6154, and a complete CLE calendar will be mailed to you. 20 Friday 9 Thursday JANUARY SOCIAL SECURITY LAW INJURIES IN THE WORKPLACE Birmingham, MedicalF'orum Building l NALAB~IA 10 Tuesday National Business Institute, Inc. Mobile,Ada m's Mark Hotel ACCOUNTINGPRACTICE Credits: 6.0 Cost: SJ38 National BusinessInstitute , Inc. Birmingham (715) 835-8525 Credits: 6.0 Cost: $138 Lorman BusinessCenter, Inc. (715)835-8525 Credits: 3.8 Cost: $120 27 Friday 10 Friday (715) 833,3940 NURSING HO~tE LAW INJURIES lN THE WORKPLACE Birmingham, Medical Forum Building l NALABAMA Cumberland Institute for CLE 12 Thursday Montgomery. Madison Hotel OSHA COMPLIANCE Credits: 6.0 (800)888-7454 National Business Institute. Inc. UPDATEIN ALABAJIIA Credits: 6.0 Cost: $138 Birmingham, Ramada Inn Airporl (715) 835,8525 National Business Institute, Inc. Credits: 6.0 Cost: $138 FEBRUARY 17 Friday (715) 835-8525 OBJECTIONSAT TRIAL/HOW 3 Friday TO DEAL WITH THE 13 Friday SOLOANO SMALL FIRM SUCCESS DIFFICULT LAWYER Birmingham, PickwickCenter OSHA COMPLIANCE Birmingham. MedicalForum Building Cumberland Institute for CLE UPDATEI N ALABAMA Cumberland Institute for CLE Huntsville,Marriott Credits: 3.1 (800) 888-7454 National Business Institute, Inc. (800)888- 7454 Credits: 6.0 Cost: $138 23 Thursday (715) 835-8525 7 Tuesday WORKERS' COMPENSATION ALABAMA ELDER LAW LNALABAMA 19 Thursday Mobile, RamadaResort & Birmingham JOINT CONFERENCE OF ConferenceCenter Lorman Business Center, Inc. ALABAMAST ATE BAR AND National Business Institute. Inc. Credits: 6.0 CIRCUIT AND DISTRICT Credits:6.0 Cost: $138 (715) 833-3940 JUDGESASSOCIATION (715) 835-8525 Montgomery 24 Friday Alabama Judicial College, 8 Wednesday Alabama State Bar HANDLINGDUI CASES ALABAMAE LDER LAW Birmingham,Wynfrey H otel Credits: 6.0 Montgomery,Madison Hote l Cumberland Institute for CtE (334) 242-0300 National Business1 nsti tutc. Inc. (800)888-7454 Credits: 6.0 Cost $138 HOW TO PROTECT SECURED (715) 835-8525 lNTERESTS IN BANKRUPTCY Birmingham, Ramada Inn Airport National Business Institute, 1n c. Credits: 6.0 Cost: $138 (715) 835,8525 30 I JANUARY1995 THE ALABAMALAWYER CPAsareri themoney ach year, the tax laws become more complex. And the penalties for mistakes become more costly. That's why it's essential to have a member of the Alabama Society of Cenified Public Accountams handle all your business aud individual tax needs. To belong to the Alabama Society of CPAs, our members have 10 maintain a high level of education to stay knowledgeable in the areas of corporate and individual tax planning and preparation. as well as vinually all other aspects of accounting . We provide our members with the resources to stay informed about the latest tax laws and regulation s. Our membership is limited to CPAs who meel high standards for quality practice, education and professional ethics . So when you hire a CPA who is a member of the Alabama Society of CPAs, you can be sure you're gelling someone who is right on the money. Anyone else could end up costing you more than ju st frustration. Tl It: ALABAMAu\\llYER JANUARYl 995 / 3 I RemarksBy RetiredJustice Oscar W. Adams, Jr . OPENING OF COURT CEREMONY 1994-95 TERM OCTOBER 3, 1994 MAYIT PLEASETHE COURTS• Mr. I mention my 47-year love affair with I wish I could say a word about all of Chief Justice, Justices of the Supreme the law because what I am going to say our deceased brothers and sisters, but Court, Judges of the Courts of Appeals. today is extremely personal-as person lime will not permit. Some stand out so members of the clergy. members of the al as the deaths of the 75 I ives we cele indelibly i11my mind thal I pause to Alabama State Bar, members of lhe brate today were to their families. In remember them. Joe Bernard was a cir staffsof the courts. honored guests. the 11 monU1sthat I have been off the cuit judge in Birmingham hand ling I am extremely honored to have been bench. I have had time for renection on divorce matters. He promised Anne invited lo give the opening of court and our professionand the judiciary relative Marie that if she brought her divorce memorial address after only 11 months to other institutions in this country. I case to him, he would put me in jail. off the bench. Al the opening of court see storm clouds on the horizon and Don't worry. Joe. Anne-Marie won't ceremony last year, I sat right there they have been gathering for some have to bring me to court. Annette where Justice Houston sits today. I wish time. Clark Dodd. Annette, Janie 's and my I could truthfully say that I do not miss Having lived as long as I have, I per friend. taught at Cumber land with the court, bul I do- the stimulating sonally knew more than half of those Janie and was one of the sweetest peo arguments of general conference. yes, whose lives we celebrate today. ple I had ever meL I remember her for even the heated arguments of general Although the list or deceased'att orneys wanting every ticket that I could gel for conference- the court's junkets lo far is diverse - the old. the young, the her for the Alabama football games. nung places in Alabama, cities large and black, U1ewhite, the male, U1efema le, Harry Camble. Harry Camble was one small-bringing the court to the peo the rich, the poor-there are lwo or my bar examiners and was always ple. But I did not retire in the first place things they had in common with the known to give a fair exam. He, along because I disliked the work that I was rest of us-a love for the law and a love with Sam Hobbs, paved the way for me doing. I retired because after 33 years of for this country that allowed a judicial to be the first black to speak to a Rotary private practice and 13 years on the system such as ours to exist-and we Club in Selma. Alabama.J ames Russell bench, I thought il was time to surren all resent any encroachment by other McElroy.As a teenager, I would run up der the mantle to a younger person. branches of government on the judicial to his courtroom and listen to him try Everygood soldier knowsthere comes a branch. \Ve also have another thing in cases. Sometimes he would try a case time to withdraw from the firing line. I common. \Ve all took a solemn oaU1to with his hat on. He said he did this to have watched Justice Cook's work on demean ourselves as attorneys accord keep his bald head warm. He was a the court and in my opinion Governor ing to the best of our learning and abili Friend of my father's. He was Mr. Evi Polsom made an outstanding appoint l)•, and with all good fidelity, to the dence in Alabama. Connie Waller Par menL courts as well as to the client. swore son, a black lawyer and member of my October 31st of last year was my time that we would use no falsehood or delay church. He had justly earned the repu· to retire from lhe r.ring line- to give any person's cause for lucre or malice, talion of being an astute cri minal myself a chance to renect-maybe to and that we ,vould support the Consti lawyer when he was cut down at the consider a third career-to write a book tution of the State of Alabama and of young age of 48. We'll miss you Connie. and perhaps to trace my ancestry as far the United States so long as we contin Willard Livingston, son of a chief jus back as Haley did in Roots. ued as citizens thereof, so help us Cod. tice or this court, J. Ed Livingston. 32 I JANUARY1995 THEALABAMA LA WYER Willard's son is married to our deputy menta l principles. Firstly. America's what he did, but he performeda judicial clerk, Louise Livingston. Ben A. Engel. success is inextricably tied up in a prop responsibility. The last time I saw Ben he was in one erly performing judiciary as envisioned In 1963, a petition was filed with boat and I was in another, fishing in the by the founding fathers when they another Alabama judge, Judge Walter Gulf of Mexicoa fewmiles from Nassau. wrote our Constitution. Secondly, the Gewin, right after he was appointed to Don't let the big ones get away,Ben. judicial branch of government is the the Fifth Circuit Court of Appeals, lo When I was 12 years old, after first country's most fragile branch and has stay a desegregat ion of the schools going through the cowboy and Indian vitality only if respected by the people. because of the bombings and violence stage, I knew for sure that I wanted to It was recognized as such at the time of that erupted in the wake of the desegre be lawyer. It had always been my the framing of the Constitution and this gation order. He wrote: ''The howling father's ambition and he probably clev condition has not changed even to this winds of hate and prejud ice al1vays erly instilled it in me. Every chance I day. One reason this is so is because we make it difficult to hear the voices of got, I would go down to the Jefferson have no army or navy to enforce our the humble. the just, the fair, the wise, County Cour thouse and sit in Judge orders. Thirdly, the judiciary frequently the reasonable, and the prudent. We McElroy's court and other judges' comes under attack because in perform mus t not permit their voices to be courts and listen to the lawyers trying ing its historic role of protect ing the silenced by those who incite mob vio cases, and particularly their closing ,veak, the minorities, and the defense lence. 'The best guarantee of civil peace arguments to the jury. Some lawyers less, it collides with the interests of the is adhere nce to, and respect for, the had deep, powerful voices and I would rich and powerful. Fourthly, the media, law."' It took courage for Judge Cewin hear those voices ringing down the cor all too frequen tly, fails to exto l the to do what he did, but he performed a ridors of the courthouse. I visualized virtues of courts and zeroes in on their judicial responsibility. m)•selfdoing the same th ing and you perceived shortcomings. r ifthly, it was While I was on the court, we struck know I really did do that on many occa true at the time of the founding of this down a provision of the Tort Reform Act sions after I passed the bar. country, and it is true today, that many that limited punitive damages to $250, It was pretty hard for a black kid in people distrust power in the hands of 000 in every case. no matter how egre 1936 to believe that he could be a lawyer the people, and particularly the power gious the conduct, a.s offens ive to in the State of Alabama. My grandmoth of the people sitting on a jury. Although Alabamians'co nstitutional right to trial er, whom I admired, discouraged me this power has survived intact since it by jury. In other words, if the wrong to and said, "If you ever got to be a lawyer, was won in 1215 at Runnymede, Eng. one plaintiff justified a punitive damage you couldn't make any money because land, many still distrust it. award of $250,000 and the wrong to lawyering was a white man's business. It takes courage for a judge to per another plaintiff in another case justi· You shou ld study to be a doctor.'' I form his or her duties under the Consti· fied an award of one million dollars, worked in steel plant and my gang told tution. However, we have had many each must get no more than $250,000. me that. "Ain't no Negro gonna be no Alabama judges who have had that kind A justificat ion for th is is that it will lawyer." And they used to call me a of courage. Many do not know that an bring business to Alabama. This was "lawyer" as a joke. But I had a secret Alabama ju dge in 1933, Judge James clearly a violation of the right to a trial weapon, the Constitution of the United Edward Horton, Sr.. invalidated a con by jury because traditionally courts, as States and I was banking on that sec viction in the first Scottsboro trial on well as juries, decide cases on a case-by. tion that said that "no person shall be the basis of insufficient evidence. This case method. This is what equal and denied the right to life, liberty, or prop was the case where nine black boys exact justice is all about. But we have erty without due process of law, nor be were arrested for the rape of two white been excoriatedby the media and other denied the equal protec tion of the women in a gondo la car near Paint wise for our decision. It took courage laws." Well, you kno,v I got to be a Rock, Alabama. One prosecuting wit· for us to do this. Constitutional princi lawyer, but I did even more. I never in ness later admitted she had lied about ples should not be sacrificed because my wildest dreams ever thought that I the boys. Judge Horton was told by the U1ey may be unpopular at a particular would take a seat on the highest court attorney general's office that he would time. of this state, but that is what America is be defeated at the polls if he did so and We have the greatest court system in all about. The American dream is that if his response was, "What has that got to this country. The men and women who you work hard and study hard, you do with the case?"At first he got praise serve it are men and women of both should be able to go as far as your talent from the Alabamapress and then in the intellect and integrity. L can make this will carry you. My life is a statement of face of mass community criticism, the statement because during the last three that fact. press soured on Judge Horton. It took a years that I was on the court, I served But so much for the past. We all decade before the appeals courts could on the American Bar Association's most know what I did and what the men and come to the same conclus ion that important commission. Our job was to women whose lives we celebrate did, Judge Horton did-all that time the hold publ ic heari ngs in most of the but what about our profession and our Scottsboro boys languished in jail for a major cities in American to determine independent judiciary in the future? In crime they did not commit. As predict what, if anyth ing, is wrong with our order to answer that question, we have ed, Judge Horton was defeated al the leg'alsystem and the legal profession. to come to grips with several funda- polls. It toQk courage for him to do But we cannot expect these men and THE ALABAMA LAWYER JANUARY1995 I 33 women lo lllke lhe heat, and put their there are many other organizations when we fail to apply the principles as lives in jeopardy for right, when we do throughout this county that seek to was obviouslydone in the RodneyKing not sustain and nurture them in times undermine the Judicial system. I do not case in Los Angeles. fortunately. the of crisis. How long can we continue to know where they come from. but they courts will not allow this. and we have serve for IOYtof the professionwhen all are there. betn able to avoid the violence that ,,·e we get is a slap in the face from those Another thing. The ABAand many of haveseen in other countries. who have the most to gain from a us have bought into the premise that We are doing so well in this country stTOngAmerica? And it certainly is not the public does not like lawyers. I that we have almost taken our liberties for the money. I leil a firm in 1980 in believe this is prop;iganda.If lhis we.re for granted-the right to a trial by jury. which I was making over SJ00.000 a so. why is Lhtre such a great fascination freedomof speech, privilegeagainst self. year to a take a Job making S49.000 with lawyers and judges in the 0. J. incrimination. speedy trial, and on and because I knew lhat if I did not take lhe Simpson trial? l'urthermorc. we are the on. The price of liberty is eternal vigi Governor's offer. no black would have only professionlh nt has a whole televi lance. We seem to forget that although been appointed. sion channel devoted to It. we are the oldest constitutional democ At each of our ABAhearings we were I firmly believe that America is the racy in the world. we are still young by confronted by an organ izat ion that greatest nation on earth because of the old world standards. We must nol allow called itself H.A.t.T.. which stands for magic of our Constitution.Our greatest one jot or tittle to be taken from our Help Abolish l<'gol Tyranny. Their staff tension came In lhe 1860s when we Constitution. 1.awyersand courts see was well educated and well prepared. engaged in the Civil War because our that doesnot happtn, and this is why we Their agenda was that the legal profes founding fathers would not deal with are under attack. Government by the sion was the only profession or trade the issues of the inalienable rights of l)Wpleis still an experimenLIt is not yet that regulates itself and. therefore, the slaves ,n the Constitution. Lincoln too late for ,t to fall.Therefore, let us. peoplecannot get justice. I asked them thought that the tensions were so great from this day forward. in the name of where do they think I, and a whole seg that. indeed. a government of the peo those we honor today, dedicate our ment of peoplelike me, would be if our ple might fail.Now, we have fixedthat. selvest o the propositionthat our consti freedom depended on the Legislature Where we get In trouble is when we tutional government of the people, by and Congress? They could not satisfac· allowa watering down of Constitutional lhe people. and for the people will not torily a,m~er. I personally know that principles In lhe name of expediency,o r perish from the earth. • UNTlLNOw, TlllE CO\i1PANlESWERE ABOlIT AS EASY 1D ffiMPARE. Thesed3ys. a kx of titleoomparucs cwm '°be financi:lllysoond. 8111 IOO ollcn. whlll theypromo1e are isolnledrntios mid SlllUStics Iha! m no1 • uue n- o< ftrulllCinJstrength. In fllcl.lhey are oflCIImislmng. At MississippiValley litlc, wesaw the needfor Stllndardi:r.edclaims-paying-nbdily mtings for ti1Je insurm. Thru's whywe 35k£d1 0 berosed by Smndlll'd& Poor's.We weregive n an A+-the highc. • • MISSISSIPP I VALLEY TITLE • • • INSURANCE COMPANY • • 315Tombigbee Sim:!, P .O. Box2428 Jockso,. MS 39?25-2428 (601)969-0m (800}647-2124 (AUMSfl'N) 34 /JANUARY 1995 THE ALABAMALAWYER ByAlex L. Holts ford. Jr. and Steven Anthony Higgins Introduction (1929). However,operating a street sweeperl o keepthe streets The number of lawsuitsalleging liability against municipali· clean was held to be governmental.D,msmore u. City of Birm ties has substantially increased over lhe past several years. ingham, 223 Ala. 210. 135So. 320 (1931). Althoughvarious factors can be attributed lo this rise in num In Jacksonu. City of Florence.29" Ala.592, 320 So.2d 68 bers, il is apparent that litigants. lawyers and jurors are no ( 1975),the AlabamaSupreme Court eliminatedlhe distinction longer timid about placingliability upon local government. between governmental and proprietary functions. making Generally.a person pursuing a claim against a municipality municipalitiesliable for negligent performanceof a number or has two primary vehicles of recovery. The first would be to activitiesfor which they had previouslybeen immune. pursue a civil rights claim based upon TiUe42 of the United For the most part, lawsuits against municipalities are Stales Code, § 1983, and its related statutes. This article will presentlygoverned by statute. and such lawsuitsare subject to not address that vehicleof recovery,as federal civil rights law unique characteristics and requirements. It is those unique would require a lengthy article for itself. Rather, this article characteristics and requirements which will be discussed in will address recoveryunder the second vehicle,tha t being lia detail below. bility against a municipalitybas ed upon Alabama state law. Prior to 1975, municipalities in Alabamaenjoyed sovereign Notice of claim requirement immunity from certain torts. The law placed a distinction To pursue a claim against a municipolity, the claimant must upon whether or not the municipalitywas engaged in a "gov· adhere strictly to the applicabletime requirements. It is true emmental" activity (e.g.. maintaining public squares. parks, that a normal two-yearstatute of limitations applies to the fil. playgrounds,etc.) or whether it was engagedin a "proprietary· ing of a lawsuit against a municipality based upon tortious activity (e.g., engaging in the business of furnishing electrici conduct. Howe\'l!r,under§ 11-47-23. Ala.Code1975, a sworn ty. lights. water or gas to lhe public}. Under this scheme. claim •for damages growing out of torts" must be filed with municipalitieswere not liable for injuries causedby wrongful the municipalitywithin six.months of accrual.This section is or negligent performanceof its governmentalfunctions. How In the nature of a statute of nonclaim. A cause or action aoer, a municipalitycould be held liable in exercisingpropri accruesas soon as the party in whose fa,o0rit arises is entitled etary functions. Although this distinction eliminated a to maintain an action thereon. Buck u. City of Rainsville,572 multitude of possible lawsuits against municipalities. II also So.2d419 (Ala. 1990). created confusing and somewhat arbitrary law. For example, In connection.§ 11-47-192, Ala.Code 1975, stiles lhat a repair and maintenance of streets was held to be proprietary. sworn state menl based on a cla im "for persona l injury City of Birmingham v. Whitworth. 218 Ala. 603, 119So. 841 received" must be filed with the municipal clerk stating sub- THEALABAMA LAWYER JANUARYJ 995 135 Help us help thein. Lc:g;aJrepresent.ition for people "~thout resources 1s fw1ded in p.m by bwyers who know thac Alabama's poor deserve compercn1 counsel. Support Alabama LcgnfServices with your r:ix deducriblc concnburion ofSIOO or more'. St'nd )'Ourcheck. p.1yablc10 Alahanu l.egaJSel'Vlces, roday. Alabama legal Services ~Jo V<-onyWc.t\'t'f 500 lldl Dllilclmit ?m Monq."'"""YS-1 Moncgon,c,~AJ. J6H14 • ~I;>' :?lr>f..1-111 Law Fir11,for ti, ~ Poor stantially the manner in which the injurywas rtceivtd. the day is renderedagainst a municipalityand some other party," e.' THE:ALABAMA LAWYER JANUARY1995 / 37 his or her duty, or unless the said injury or wrong was on negligenceon the part of the city employeeswhile acting done or sufferedthrough the neglect or carelessnessor within the scope of their employment). failure to remedysome defectin the streets, alleys,public It is clear that the interpretationof this first categoryprimar · ways or buil d.ings after the same had been called to the ily relates to affirmativeacts by an agent of the municipality. attention of the council or other governing body or after No affirmativeduty is imposed on a municipality to seek out U1esame had existedfor such an unreasonablelength of defectiveconditions to rectify them. for example,in Slade v. lime as to raise a presumption of knowledge of such City of Montgomery, 577 So.2d887 (Ala.1991) , the courl held defecton the part of the council or other governingbody U1ata municipalitywas under no affirmative duty to seek out and whenever the city or town shaJJbe made liable for defectivestorm sewer grates and could only be held liable to damagesby reason of the unauthorized or wrongfulacts plaintiff, who was injured when his foot was placed through a or negligence,carelessness or unskillfulnessof any per broken grate, if the municipalityhad actual notice of the defeel son or corporation, then such person or corporationshall or if the defect had existed for such an unreasonablel ength of be liable to an action on the same account by the party so time that the municipality could have obtained notice or injured. However, no recovery may be had under any knowledgeoi the problemby use of ordinarydiligence. judgment or combination of judgments, whether direct It is also clear that the affirmativeact of negligencemust be or by way of indemnity under Section 11-47-24.or other more than mere •·wrongful decision-making." See, OIi u. wise,arising out of a single occurrence. against a munici Evere/1, 420 So.2d 258, 260 (Ala. 1982).Simi larly, municipal pality, and/or any officer or officers, or employee or oflicialsare absolutely immune from suits attacking theil' leg employees, or agents thereof, in excess of a total islative judgment. Ex parte City of Birmingham , 624 So.2d $100,000 per injured person up to a maximum of 1018,1021 (Ala.1993). $300,000 per single occurrence, the limits set out linl the The courts have recognized that in certain situations. public provisions of Section 11-93-2notwithstanding. policy considerations take precedence over the general rule that municipalities can be held liable for the negligence of This section limits municipalliability to two distinct classifi their employees. ln Rich v. City of Mobile, 410 So.2d 385 (Ala. cations. In the first class, the municipalitymay be liable under 1982), the court created a narrow exception to the general the doctrine of respondeatsuperior for injuries resulting from rule in situations in which the public policyconsiderations of the wrongful conduct of its officers or agents in the line of a municipality's paramount responsibility to provide for the duty. In the second class, a municipality may be liable for publicsafety, health . and general welfare outweigh the reasons injuries resulting from its failure to remedyconditions created for the imposition of liabilityon the municipality.This excep or allowed to exist on the streets, alleys, public ways, etc., by a tion, commonly known as the substantive immunity rule, is person or corporation not related in serviceto the municipali applied only in "those narrow areas of governmental activities ty. Ellison v. ToW1lof Brookside, 481 So.2d 890 (Ala. 1985). essential to the well-beingof the governed,where the imposi Each of these two classificationswill be discussedbelow. tion of liability can be reasonably calculated to materially I. liability for Negligence of Agents or Employees • first, thwart the City's legitimate efforts to provide such public ser under§ ll -47-190, liability may be assessed if an injury or vices." 410 So.2d at 387. This exception has been applied in wrong is done or suffered "through the neglect, carelessness only a few narrow circumstances. See, e.g., Hilliard v. City of or unskillfulness of some agent, officer or employee of the municipality engaged in work therefore and while acting in the line of his duty." Basic.1lly,this statute allows a cause of Alex L. Holtsford, Jr. action for negligence when an agent acts as such during his Alex L Holtslord, Jr. ls a 1981 graduoie ol the work for the municipality and causes an injury. As in any Un1ve,sltyof Alabama and a 1985 graduate al other negligence action. the plaintiff must establish a breach Cumberland Schoolof Law He Is with the of a legal duty owed by the municipality to the plaintiff in Montgomery firmo f Nix, Ho!lsfo 38 /JANUARYI 995 THE ALABAMALAWYER Hunls11illa.585 So.2d 889 (Ala. 199ll (applyingexception to negligenceshould be found. See. Cilgof Binnmgham v. Mo11- allegedlydeficient city electricalinspection); Calogrides 11. Citv elle, 241 Ala. 109. I So.2d 1 (1941); Cily of BirmitlJlhamo. of Mobile.475 So.2d 560 (Ala. 19851(applying exception to a Edward.t,20lAla251, i7So.841 (1918). claim based on the failure to provideadequate p0lice protec With regard to traffic signs, such as stop signs, the law is lion); Rich v. City of Mobile.410 So.2d 258 (Ala. 1982) (apply clear that a city is not under an affirmativeduty lo place a stop ing exceptionto allegedlydeficient city plumbinginspection of sign al any particular location.See, e.g., Davisv. CoffruCoun sewer drain). But see, Zieglerv. City of Millbrook,514 So.2d ty Commission. 505 So.2d329 (Ala.1 987). Pailure lo do so will 1275 (Ala. 1987) (holding that city not immune from liability nol result in liability. However, where a municipality chooses for negligencein failing to provideadequate fire protection). lo place a stop sign or traffic signal in a certain locatlon, 3nd II. /,iabilit11for Defects in Streets. A/legs. Public Ways or then fails to maintain il properly, liability can be imposed Buildings· The second categoryof liabilitywithin§ 11-47-190 upon the municipality.1\$ stated in City of Prichardv. Ke/leg, comes from the next part of the statute, which states that 386 So.2d 403 (Ala.1980), when a city erects a stop sign at an there is liability for an injury or wrong ·done or suffered intersection. it has~'Oluntcered to act and is thereafter charged through the neglect, carelessness or failure to remedy some with the responsibilityof maintainingthe sign with due care. defect in the streets. alleys, public wa)'Sor buildings; with Ill. Exdusioity - It is clear that the categories created by § knowledgeor nolice by the municipality of the defect. Such I l-47-190limit liabilityor municipalitiesto these t"''Odistinct knowledgeor notice can beexpress. imp I ied or constructive. classesof negligentmisconduct or omission, which necessarily This c.itegory of liability comes from the Imposition or a means lo exclude liability or a municipality on any other legal duty on the municipalityto keep its streets and sidewalks account. City of Bessemerv. Clwmbers,2 42 Ala.666, 8 So.2d in a renMJnablysafe condition for the use of the public. The 163 ( l 942). In fact, unless a complaint is framed under one of courts have stated that persons U$inga public street have a the two theories contemplatedby this section. it should be dis right to presume that the way is reasonablysafe for ordinary missed for failure to stale a cause of action for which a recov tra\'el. whether by day or night. Ci/11of Florencev. Stack. 275 ery can be based_ Hi/Ii$,,.City of Huntsuille.274 Ala.663. 151 Ala. 367, 155 So.2d 324 (1963). Under Alabamalaw, govern· So.2d240 (1963). mental entitles have the exclush•eright of control O\>erand responsibility for the maintenance or public highways, and Damages thus, Lhoseentities are subject to a common law duty to main· While there are strict standards for obtaining a liability lain roadwaysin a reasonablysafe condition for their intended Judgment against a municipality, there are even more slricl use. Jcfforso11County v. Sulzb.1/,468 So.2d 112. 114 (Ala. standards with regard lo the amount which can be recovered 1985).This duty may also extend to city alleys and dirt roads. See, Macon County Commissionv. S01lders,555 So.2d 1054 (Ala. 1990) (rural dirt road): City of Tallasseev. Harris.431 So.2d un (Ala.1983 ) (narrowalley). The test for determining whether a municipalityhas a duty to maintain a roadwayis whether it has a right to control, or participate in the control, of the roadway.This duty does not apply for those roads within a municipality which are within the exclusiveco ntrol of another entity, such as stale highways which run thro ugh the municipality. See, e.g .. Harris v. Macon County. 579 So.2d 1295 (Ala. 1991). In addition. in Yates v. Town of Vincent. 611 So.2d 1040 (Ala. 1992), the Please check your address and telephone num court held that a city and a county cannot concurrenUyexer· cise control over the same roadway. ber in the current (1994) edition of the Alabama As can be read from tlle statutory language, there must be Bar Directory.If anything is incorrect. mail or "some defect" proven by the plaintiff before recovery is fax changes by February 15, I 995 lo: allowed. Such a "defect" is defined to be anything that may reasonably be expected lo interfere with the safe use or the Alabama State Bar riJ!ht-of-way. City of Birmingham u. Wood,240 Ala. 138, 197 Atln: Membership Services So. 885 (1940). Liability may be premised on a defect created by an agent or the municipalityor by a lhird-party. However, P.O. Box 67 1 beforea municipalitycan be held liable for culpableneglect to Montgomery, AL 3610 1 remedya conditionnegligently created by another, the munlc· FAX (334) 261-6310 ipalitymust have notice of the defect or the defect must ha\'e existed for such an unreasonablelength of time as to raise a Anything received after thal date will not be presumption of knowledge.City of Blrmmghom o. Norwood. renected in the 1995 directory. Please check your 220 Ala.497. 126So. 619 (1930). tn addition. such knowledge may be Imputed to the municipalitythrough the knowledgeof information today! its i1gents.On the other hand, ir the plalnllff/travelerknew of the defecl prior to entering lhe area In question. contributory THE ALABAMA LAWYER JANUARY1995 / 39 from a municipality. However. this has been lhe subject of lawyers assumed Lhat this statutory cap would likewise by controversy In recent years, and very recent legislaLionhas struck down by the court as unconstitutional. attempted Losolve that problem. Surprisingly.instead of striking down the statutory cap on Prior to 1994.the amount of damageswhich could be ren damages. the AlabamaSupreme Court affirmed the applica dered against a municipalitywas governedexdusively by§ 11- tion and constitutionalityof the monetary cap. In a lengthy 93-2, Ala.Code1975. That statute slates that any recoveryfor opinion by Justice Almon. the court discussed at length the injury or death shall be limited to Sl00,000 for one person, debate on the issue of municipal liabilityat the 1901Alabama and $300.000 for more than two people injured in a single constitutional convention.The transcript of the debate at the occurrence. against a municipality.That statute directs thBt constitutional convention led the AlabamaSupreme Court to no governmentalagency shall settle any claim for more than opine in Comer u. CoumgtonCounty as follows: that amount. Further, the liability of a municipal Insurer is "ll was clearly the delegates' understanding lhal, limited by these same restrictions on recovery.See, /(u/p u. absent the incorporation into the Constitution of the UnitedS tates Fid.& Cu11r.Co., 529 So2d 966 (Ala. 1988). proposed section, the Legislaturewou ld have power to Most plaintiff lawyers have attempted to argue that the regulate actions against munici1>alities.The delegates statut.e only applied lo recoveryaga inst a municipality. ·rhe obviouslyviewed actions against municipalcorporations argument "'asmade Lhat recoveryagainst individualemploy as being different from actions against private corpora ees of the municipalitycould be in an)• unrestrided amount. tions or individuals.This view is sustained by a reading Pursuant to § I 1-47-24, Ala.Code1975. a municipalitymust of the cases on Lhesubject, both before and after the indemnifyan employeefor liabilityassessed against him aris Con\'ention.Because the constitutional framers deliber ing out of the operationof a motor \'ehicle.Therefore. in a case ately and specificallydeclined to add any constitutional in which the liabilltyis predicated upon an automobile acci presenoationof the then-nisting limitedstatutory provi dent caused by a city employee.the creative plaintiff lawyer sion for actions against municipalities, such actions wouldargue that liabilityagainst the municipalitywas limited were{and are) subjed to legislativecontrol." to $100,000; but that he could recover any unrestricted 624 So.2dat 1354. amounl against lhe employee.Then, it would be argued that, Therefore.based upon that rationale. the AlabamaSupreme by statute, such recoverycould come from the municipality Court held that because of "the competing needs of conserv and any insurancepolicy that it had in existenceat that Lime. ing public funds and of compensating injured parties and The Alabama Supreme Court has never directly addressed with deferenceto the LegislntureIn regulating and balancing whether or not U1es tatutory cap could be bypassedby a large these matters," the statutory cap on damages must be upheld. judgment against such an employee. At least one other stale ILis also important LOnote that punitivedamages are never had addressedthat issue and had held that the statutory cap recoverableagainst a municipality under Alabamalaw. Such could not be bypassedso easily,notwithstanding language vir • punitive damages are clearly and unambiguouslyprohibited tually identicalto that of the Alabamastatutory scheme.Jack by§ 6-11-26.Ala.Code 1975, which prohibit.spunitive dam son o. Cityof Kanws City.680 P.2d sn (Kan. 1984). ages against virtuallyany governmentalentity in Alabama. On April 26. 1994, language was added to§ 11-47-190. There is one other very new statute in Alabama which Ala.Code1975. which limited damages to $100,000against a dese1\'esa mention in this article. Asof April26. 1994,police municipality •and/or any officer or officers., or employee or officersemployed by a county or municipalityenjoy absolute employees,or agent.sthereof." Therefore, it is now clear that immunity •from tort liability arising out of his or her con for suits against a municipality and its agent, for the negJi. duct in performanceof any discretionary function within the gence of that agent. the recovery is limited to SI00.000 per line and scope of his or her law enforcement duties." That injured person, whether it be recoveredfrom the municip.11i new statute. which is codifiedat section 6-S-338. Ala. Code ty or from the employee himself. The amendment to the 1975, awaits future interpretation as to the scope oi that statute is silent on whether it has any retroactive effect. It immunity, and the effect that It may or may nol have on a will be up to the courts to determine what cases are e11corn municipality. passedby Lhisnew language. The statutory cap on damages of Ala. Code § 11-93-2 was Conclusion recently challenged in Gamero. Covington County, 624 In conclusion. liability against a municipality in Alabama So.2d 1346 (Ala. 1993),a case in which both the county and may be allegedexclusively through civil rights law, exclusive the cily were sued for failure to maintain an intersection. The ly through law of the Stale of Alabama.or under a combina challenge to the statutory cap on damageswas based primari· tion of those theories. Numerous factors go into the ly on Article I. Section II. of the Alabama Constitution of considerationof which vehicle a particular claimant chooses 1901, which provides "that the right of trial by jury shall to tra,~I.with the federal court/state court choice being the remain inviolate."As most lawyersare awa.re, various statuto most pre\'alent.. If a state law theory is chosen, a claimant ry caps on damages have been struck down in recent years must adhere to the strict requirements to maintain such a based upon a challenge from that constitutional section. See. suit. For the claimant's attorney, failure to realize those e.g., Hendersonv. Alabama PowerCo .. 627 So.2d 878 (Ala. requirements will result in poor representation of thal per 1993) (declaring unconstitutional the $250,000cap on puni son. Likewise,an attorney representing a municipality must tive damages). During the pendency of Gamer u. Covington have a good knowledge of those unique characteristics to County, atA the labama Supreme Court, many judges and fully represent the city or town. • 40 I JANUARY1995 THEALABANA LAWYER Mobile'sPro Bono Program Legal Services and the Mobile Bar AssociationJoin Hands to Help Poor People he MobileBar Associationis a pro " It was another bono leaderin Alabama.Since I~. demonstrationor the Twhen it appl'O\'tdits first pro bono support we have proposal. it has worked hand-in-hand from our local bar," with LegalServices in a continuingeffort said Algood. to expandaccess to freelegal assistance l.ocal law firms to Mobile's low-incomecitizens. Partici support pro bo110 pation by local bar members has been participation. lland, exem1ilary: Since Its inception five years Arendall. Bedsole, ago, privatel awyersworking through the Greaves& Johnston, Mobile Bar 1\ssocialion's Pro Bono Pro Mobile's largest firm, gram haveclosed more than 4,000~. has an officialpolicy There are about 1,000 licensed encouraging its lawyersin Mobile,including judges and members to take g011emmen1attorneys. Of these, roughly part, and about half 800are eligibleto take part in the bar's of ils 55 law)-ersha\-e pro bono project,and about 330are cur signed up. Nearlyall rently signed up lo take cases. These the 15 la"yers in lawyershave agreedto handle either two Helmsing, l.yons, cases each year or spend at least 20 Sims & Leach parlicipale, and many MichaelA. Youngpeter.Daniels is alsoa hours in direct representationof a non members or Miller.Hamilton, Snider & LSCAsenior staff att.orney, and Knight payingc lient. Odomalso take part. is LSCA'sMobile R egionalOffice manag Coordinated by Tonny Algood, the The Mobile Bar Association's Pro ing attorney. In addition to setting poli Mobile Bar Association'sPr o Bono Pro Bono Committeeoversees the PllP. The cy for the PBP and dealing with any gram (PBP) is housed one floor above group meets the second Wednesday problems that arise. the Pro BonoCom Leg.alServices Corporation of Alabama each month over lunch al Michael's,a mittee also holds occasional CLEsemi (LSCAl offices in the Van Antwerp popular MobilerestauranL Chair of the nars. Building in downtown Mobile. LSCA committee is f'. Luke Coley, Jr.. who Whathas madepro bono so successful provideshalf -time secretarialservices lo also heads the Alab:,maState Bar's Com· in Mobile? "First and foremost; said the program. Funding for Algood,who mittee on Accessto Leg.alServices. Vice Coley."the la,")oerson the conunitteeand began In 1989on half-time status and chair is Joseph E. Carr, senior staff the leadersin our bar are extraordinarily hasworked full-time since June 1990.is attorney in LSCA'sMobile office. Other committedlo this. Everyonein the lead mainly provided by an IOLTAgrant members are Henry Brewster;Henry A. ership o( the bar has agreed I 00 percent from the AlabamaLaw Foundation. In Callaway,Ill; G. Marie Daniels;Gilbert this Is something to do, and it comes 1994, the MobileBar Associationinsti L. Fontenot:Theodore Greenspan; Irvin acrossaOpolitical and economiclines." tuted an annual SIOdues check-offear Crodsky:Christopher Knight; Gilbert B. Coleyspecifically cited Grodsky.for marked forpro bono to further support Laden; Daniel I.. McCleave;Matthew C. mer chair of the Pro Bono Committee, the PBP, and 756 lawyerscont ributed McDonald: F'rankie Fields Smith: for his efforts to make sure the program Lhisway. MichaelA. Smith: Judson \V, Wells:and worked. and Herndon Inge Jr., who THEALABAMA LAWYER JANUARY1995 / 4 J helpedget the programstarted. "And al l of our bar presidentshave been tremen douslysupportive." he said. Another factor contributing to the PBP's success is coordinator Tonny Algood. "His personality. dedication and skills-i t's been a perfect marriage."said Coley.·Toe pro bono project is a vision be's reallyca ught, and he's workedlfke a slavegetting ll done." Another ingr edient for PBP's accomplishmentshas been the sup port and commitment of the local LegalServices staff, Co ley added,On April lS, 1994, the Mobile BarAssoci ation passed a resolution honoring LSCA'sM obile Regionalomce for its leadership and contributions to the pro bonoprojecL ·Somehow it's all kind of clicked together,"said Coley. There is more than one way Mobile lawyers c:an participate In the PBP. Somecome in to the Van Antwerp Build ing office to interview clients there. Others accept cases that are referredLO and Algoodrefers these to lhe appropri Beyondlhe call of duty: lheir offices. Some lawyersdon 't accept ate agency. The story or Dee casesthemselves but are willingt o serve Each year, the PBPrecognizes its par Deewa s desperate.H aving once been as mentors lo other less experienced ticipatinglawyers al an awardsce remo homeless. she was afraid she would lawyers who agreet o representthe poor. ny held before a regu lar mont hly again be out on the street becauseher "We still have attorneys who like to Mobile BarAssociation meeting. landlord was evicting her. With every come to our officeto interviewclients," Mobile's pro bo110 project has served heavy rainfall. her tiny house-set al Algood said. ·we try to match the as a mode.Ifor the rest of the stale, said the bottom of a do,•nhill slope-was client's casewith the attorney.We usu MelindaWaters. director or the Alabama floodedwith inches of waler. Allof her ally schedule about eight clients, but State Bar'sVolunteer Lawyers Program. possessionsstayed damp and dirty. Her sometimes there are no-shows. The She ls working to set up similar pro experiencewith homelessnessmade he r attorneywill take lhe caseshe or she is jects in urban and rural areas through fearfulto leavethis home. bul her com comfortablewith and that need addi out Alabamaand is finding that there plaints about its intolerableconditions tional work. Some casesare just advice are enthusiastic lawyersin all parts of went unanswered. Out of frustration. and counsel. If they don't want to take a the state. Dee withheld her rent and sought help case, they'll get Lhe information and "Everybody has their own reasonwhy when eviction proceedingsbegan. return il to me for referral." they do this.'' said Coley. "Mine are reli Her help came from Henry Callaway, Algood maintainsa computerized list gious as well as civic."Further explain a partner in Hand, Arendall, Bedsole, of lawyersby areas In which they will ing, Coleypr ovided his favoritequote, a Greaves& Johnston who took the case represent pro bono cases,such as child passageattributed lo AndrewJ ackson: pro bonowhen ii was referredto him by support, wills, adoption, and housing. the MobileBar Association'sPro Bono Most participatinglawyers hand le about "I did believe, and ever 1vill Program. Ills efforts went beyond the lhree caseseach year. believe,that just laws can make callof duty. Although the PBP will handle past no distinc tion of privilege "My first thought was to look at the divorcerelief issues,it is against its pol between the rich and poor, and problem at the house and to see if we icy lo take straight di110rcecases. that when men of high standing could get the landlord to make some Clientsare referredfrom a varietyof auempt to trample. upon the. repairs. I had a contractor look at the sources-the privatebar, socialservice rights of the weak, they are the house with me. and lhe problem was programs,Legal Services, and the pub fillesl objects for example and tnal the house's slab was at ground lic al large. Applicantsare screened for punishment.In general. the great level rather than being elevated as is eligibilitybefore their case is reviewed can protect themselves, but the required by code. I contacted the city for acceptance. Some people call with poor and humble require the arm inspection department, which turned problems that are not legal in nature, and shield of the law." up severalo ther violations as well. The 42 /JANUARY1995 THEALABAMA LAWYER Even with priority status, it took sev "Thus. a year ago Dee was paying eral months to obtain Section 8 hous $100 a month for a wet , dirty and ing for Dee. "The immediate problem depressing house, and now she pays less was that Dee needed to move right for a nice clean apartment which has away," Callaway related. "I talked to sev more room than her old place," Call eral potential landlords, both with and away said. without Dee, but could not find anyone Callawayhelped her through the Sec who would take her , given her low tion 8 application process by making income, until the Section 8 approval sure she was treated as a priority appli came through." cant, by taking her to the housing office Finally, Tenny Algood, who coordi several times, and by sitting with her nates the Pro Bono Program, got Dee during the initial application process into a local apartment complex. Just and interview to help her fill out the before Christmas 1993, Algood bor required forms. • loMy Algoocl coordinates the Mob/le rowed a pickup truck, and he and Call The story of Dee is atypical in that BarASsoclOtiOn ·s Pro Bono Program. away moved Dee into her new most of the Pro Bono Program cases are apartment. Algoodtook a special inter much simpler and do not require as est in Dee's case partly because of his much time. "I don't 1oant la,oyers to volunteer work with a Mobilehomeless think that they are going to end up group, which had referred her to him moving every pro bono client. Most for help. involve something like drafting a will or But Dee's story didn 't end there. handling an adoption," Callaway said. "After she got moved in, the next prob However, Dee's case is an excellent lem was keeping Deeanoat for the three example of the spirit of commitment to months or so until her Section 8 sub pro bono service tha t exists in the sidy kicked in. Her rent was $275 a MobileBar Association. month, plus utilities," Callawaysaid. " I " I have enjoyed working with Dee collected some money from attorneys at because she has a consistently upbeat my firm, and my minister also gave her att itude despite having suffered some money from his discretionary fund. Her hard knocks in life. She is very appre Section 8 rent finally went into effect ciative of the help she received and on March 24, 1994, reducing her por come.s by to see Tenny and me when • Luke COiey. Jr. cha/ls the Mob ile Bar Assoc/offon ·s ProBono Committeeond the tion of the monthly rent lo $86. she is downtown," Callawaysaid. • Alobomo Stole Bar's Committee on Access to Legat SeJV/ces. contractor told me there was no practi cal way to fix this problem. I then start LANDTECH86 ed making efforts to get her out of the house, and got her landlord to agree to Real Estate Settlement System hold off on eviction in the meantime." For 1.Aseror Matrix Printers Callaway sa id in a November 1994 interview. • HUD 1 Automatic Calculations Dee's rent was SlOOa month, but her • Checks & Escrow Accounting only income was an SSI disabilitycheck • Word Processor - Spell Check of $422, leaving her with few housing options. Havingno experiencewith fed Policies& Commitments eral low-income housing programs , Deeds & Mortgages Callaway sought assistance from the • Data BaseReporting Mobileoffice of the Legal Services Corp. • On site Training Available of Alabama, where he got information • 10995 Reporting about Section 8 housing . "I was told there was a waiting list for Section 8 $1,495.00 ------housing in Mobile of about 2,000 peo - --- ple, but Dee qualified for priority LANDTECH because of the large percentage of her D A T A CO RPORA T I ON (800) 937-2938 income spent on housing and because of the substandard nature of her cur 303 Guaranty Building • 120South Olive Avenue • West PalmBeach, FL 33401 rent housing," he said. THEALABAMA LAWYER JANUARY1995 / 43 s the 20th Cent_u The Privilege ry careens to ,ts The legislatureof Alabamahas placed A close, more and the imprimatur o( socia l and legal more Americans are accepta bility upon the field of psy exploringcounse ling as chotherapyby granting a privileged sta an aid to survivingand tus to the psychotherapist -p atient overcoming their per relationship: sonal dark nights of "The confidential relations and the soul. Because of communications between licens the public's increased ed psychologists and licensedpsy employment of the chiatrists and clients are placed counselingservices of upon the same basisas those pro psychiatrists,psychol vided by law betweenattorney and ogists, social workers, client, and nothing in Lhis chapter and ministers, the shall be construed to require such legislatures and judiciaries privileged communication to be nationwide have had to address the disclosed."(Section34-2~2. Code newlyemerging field of psychotherapist of Alabama, 1975.) liability. Some rather clear lines of demarca In Ex parte Rudder, 507 So.2d 411 tion have been drawn regarding the (Ala.1987 ), the court further malpracticeliability of psychiatristsand entrenched the privilegeby announcing psychologists who engage in certain "that the public policy upon which the psychotherapist-patient privilege rests acts o( malfeasance.Unfortunately, the lines are considerably more blurred will not easily be outweighed by com regarding the potential malpracticelia peting interests" and went on to state bility of social workers who engage in the following: counseling. On the other extreme, U,e "Statutes such as §34-2~2 are courts have found themselves largely intended to inspire confidencein without power to impose malpractice the patient and encourage him in liability upon pastoral counselors with making a full disclosure to the out running afoul of the minister's First physician as to his symptoms and Amendment freedom o( religious condition, by preventing the expression. physician from making public The term psychotherapist , as it is information that would result in used in the scope of this article, will humiliation, embarrassment, or denote only psychiatrists, licensed psy disgrace to the patient, and are chologists, social workers, and clergy thus designedto promote the effi men who engagein pastoralcounse ling. cacy of the physicians advice or The following is an overview of the treatment. The exclusion of the evolving spheres o( psychotherapistli a evidencerests in the public policy bility. and is for the general interest of 44 /JANUARY 1995 TH£ ALABAMALAWYE R the community" (Ex parte furnished or paid for by the Rudder,supra. al 413.) employer, or a physician or the injured employee who treats or Exceptions to the privilege makes or is present at any exami Clearly, the Alabama legislature envi nation or an injured employee sioned few except ions to the psy may be required to testify as to chotherapist-patient privilege. and few any knowledge obtained by him have evolved judicially. In Harbin u. or her in the course of the treat l(urbin, 495 So.2d 72 (Ala. 1986) the ment or examination as the treat court did recognize an exceptionwh ere, ment or examination related to in a child custody matter, the mental the injury or disability arising Child Sup port Softwa re state of one of the parents is at issue therefrom." and a proper resolution or child custody The statute goeson add that the term er Case tnfonnalloncan be ,av•d &. requires disclosure or otherwise privi physicians shall include medical doc rttricvctJ leged psychiatricrecords. tors, surgeons, and chiropractors. Since rr Oene1'8tesCS-22, CS-4 1. CS-42 A second judicially created exception psychiatrists are medical doctors, plain &. CS-43 forms applies in certain criminal cases. The ly, plaintifrs testimonial privilege lo n- Supports compliant & non psychotherapist-patient privilege is protect statements made to a psychia compliantchikl :iuppon unavailablein a criminal trial where the trist is lost if a workman's compensa cr Compliantwith Alabama Suprc:m THEALABAMA LAWYER JANUARY 1995 / 47 Whethersexual contact with the lher· the Constitution of the Umted States. that BobbyHandley. the decedent, and apist caused harm lo the palienl ,s a This case remains controversial. (See his wife, Brenda Handley,were being question or fact, and the burden of Barker, "ClergyNegligence: Are Juries counseled regarding lheir marital diffa proof rests upon the plaintiff. Ready to Sit in Judgment?," Trial (July culties by the defendant minister. Dur Perhaps the most daunting burden of 1986). Ing the period of counseling, the proof placed upon the plaintiffis that of Alabama'sSupreme Court addressed minister allegedlyhad sexual relations pro"ing that the sexual contact took clergy malpractice arising from coun with the wife and failed to disclosethe place at all. Unlike in Zipki11,supra, seling in lfandley o. Richards 518 So. affair lo Mr. Handley. When Handley where the patient was induced 10swim learned of the affair, he took his 010n In the nude in the presence or other life. patients. most sexua lly exploited The Handleycase was tried and judg patients will ha,oeno witnesseswho can ment was entered for the defendant verifythat allegtd sexualacts occurml. clergyman. The supreme court. In a In such cases. the abilityof the patient unanimous opinion, held that no cause to recollec t details will contribute of action for clergy malpractice had greally to his or her credibility. been made and cited first amendment Attorneys representing plaintiffs freedomo f religion as lhe basis of the alleging sexual exploitation should opinion. anticipate thal the 1)5),'Chotherapistwlil The question was left open as to deny the charge and may attempt to use whether any cause of action exists at all the patient's "emotional instability'' to in Alabamafor ministerialmalpractice. explain away the plainlifrs suit. fl is the On the other hand, the court did allow exploitivemental health professional's that the inlei1tio11altorts of a cleric are trump card , and it is the unkindest cul actionable, even though they are inci o( all for lhe patient-plaintiff. Again, denl5 or religiouspractice and belief. the credibilityof the parties will be o( paramoun t importa nce in such 4. Failure lo oblllin informed con· instances. sent The legislature of Alabama has adopt· 3. Failure to pm-e_ntswcldt ed the traditional "1ew that a doctor PS)'chotherapisl5must act reasonably must obtain the informed consent of to identify and protect those patients the patient before proceeding with who are suicidal or al high risk for treatment. roi11o. Smith, 479 So. 2d becoming so. Negligenceo n the part of ''Psychotherapists I I 50 (Ala. 1985). Since psychiatrists" the psychotherapistmay occur upon a are medical doctors. they clearly are failure lo recognizecommon indicators are constrained bound to obtain the informed consent of suicide;by inadequatetesting or tval· of their clients. In Nolen o. Petorsan, uation of the patient; or from failure to by both ethical and 544 So. 2d 863 (Ala. 1989). Nolen was restrain a suicidal patient. The duly of Involuntarily committed to a mental psychiatrists and licensed psychologists legal duties to health facility. Nolenbrought a medical to identifypr ecursorsor suicideis plain. preserve inviolate malpractice action against two physi More problematic is the scenario in cians for administering potentially which a clergymana ttempts 10 counsel the confidencesof the harmful antipsychotic drugs to him a parishioner. In Nally u. Grace Com without first obtaining his informed munity Church of the Valley, 157 Cal. patient inviolate... ." consent. The trial court granted sum App. 3d 912, 204 Cal. Rptr. 303 ( 1984), mary judgment for both doctors. The the Supreme Court of California was supreme court reversed slating the fol· confronted with the question of clergy ••• lowing: malpracticearising from counselingby "Several cases have addressed pastors.A minor who was receivingpas. the issue;and, without exceptioo. toral counseling committed suicide, everycase has repeatedthe propo and his parents sought relief based sition that a person involun1.1rily upon a theory or clergymanmalprac tice committed to a mental hospital is for negligent counseling. The trial court entered judgment for the defen 2d 682 (Ala.1987 ). The case involved a Shirley Darby How e ll dant pastors upon the close of the pre wrongful death claim arising from a SlwteyDalby Hov,el It • full-bme l)folessot a1Jar.es School of Lawand a patlnet in 1nie sentation or evidence on the ground suicide, allegedlycaused by a minister's Mon1gomeryhrm of Add.son,Viekers, Howe• that to authorize the cause or action malpracticeor outrageousconduct dur & Tall EmergingTrends in Sexual Harass· AT'T'ORNEYS COVERNMENT ment" 55:33 Hardie, William H. "Liabilityof Profes "Alabama State Budgetsand Appropria sionals (or NegligentCertification • tions"A lbert P. Brewer55:3 44 55:226 Early, Berl H., "A Tribute lo Reggie Hamner-A Statesman. A Facilitator. Norman,Keith B. "TheAlabama State AVisionary " 55:275 Hillrston, William B. Jr. "ATribute to Bar Qualityof Life Survey Results" Reggie Hamner-The-25-YearLove 55:152 Affair" 55:270 Brewer, Albert P. "AlabamaState EDUCATION Budgetsand Appropriations"55:344 "EquitableFunding for Alabama's Hamner.Reginald T . "Executive Buffalow, GregoryC. "A Practitioner's Schools" Ira W. Harvey55:354 Director'sReport " 55:8, 55:70, Guideto Selling AsideDefa ult 55: 142, 55:207. 55:267 Judgements" 55:297 EMPLOYMENT LAW Byrne, DavidB. Jr . & Silberman, Wilbur Hardie, William H. "Liability of Profe_. "The Tort of Outrage in Alabama: G. "Recent Decisions"55 :5 l, sionals for NegligentCertification" Emerging Trends In Sexual Harass· 55:120. 55:247, 55:315 55:226 ment" Christine WhitesellLewis , Campbell. Gilbert R. Jr. "A Tribute to Jane R. Goodson& ReneeDaniel ReggieHam ner-A GentlemanF'rom Culverhouse55:33 Hart. J. Mark" Wrongful Supervision: Alabama"55:2 74 NewAttention on an OldTort " 55:96 ENVIRONMENT CIVlLP ROCEDURE "An lntroduclion to The AlabamaWater "A Practitioner'sCuide lo Setting Aside ResourcesAct " WilliamS. Cox, m lfan,ey, Ira W. "EquitableFunding for DefaultJudgements- " GregoryC. 55:176 Alabama's Schools"55 :354 Buffalow55:297 "What Is This Thing CalledUS1'?" ''The AlabamaClass Aclion " AlanT. Janae.\G. Stevens55:220 Ha)•es,l..es Ill "YoungLawyers ' Section" Rogers 55: I05 55:10, 55:72, 55:183 55:245 "The AlabamaClass A ction-PartTwo " EVIDENCE Alan T. Rogers & GregoryC . Cook Holmes. BrooxC. , ·'President's Page" "Pattern and Practice: Discoveryand 55:158 55:264. 55:328 Use of Evidence- A Defendant'sP er spective"Charles D. Stewart, Edward Cook. GregoryC. & Rogers,Alan T. M. We«!& Philip G. Piggot 55:233 fNDEX "TheAlabama Class Aclion" Part Two CumulativeInd ex January 1993- 55:158 Codbold, Judge John C. "Remarks" November1993 55:55 October 11, 1993 55:43 Cox,William S. Ill "An Introductionlo (Correction55:89 ) Kimble,Belinda L. "WrongfulBirth:!\ the AlabamaWater Resources Act" Practilioner"sGuide to a New 55:176 Arrival" 55:84 Cood,on, Jane R., Culverhouse. Renee Daniel,& Lewis,Christi ne Whitesell Culverhouse, Renee Daniel.Lew is, "The Tort or Outrage in Alabama: Kitchens, LynneB. "1993:The Yearof Christine Whitesell & Goodson,Jane EmergingTr ends in Sexual Harass· the ROM- CD ROMfor Alabama R. "TheTort of Outrage in Alabama: menl" 55:33 Lawyers''55:46 50 I JANUARY19 95 Tl IE ALABAMALAWYER Pike. DanielA. 55:385 Sides, TerryA. "R ecent Decisions" 1../\WOFFICE ~IANACEMENT Salmon.Louis 55:6 I 55:185 "1993: The Yearo( the ROM-CDROM Sirote,Morris K . 55:256 for AlabamaLawyers" Lynne B. Stockham,Douglas W. Ill 55:322 Kitchens55:46 Weht,Gabrielle U. 55:322 Silberman,Wilbur C. & Byrne, David B. Wildemire,MIiier Arrington 55: 124 Jr. "RecentDecisions" 55:51, LECALSE RVICES Wingo,Douglass P. 55:126 55:120. 55:185. 55:247. 55:315 "WhoRepresents the Poor?"Penny Weaver55:382 Norman, KeithB. "The AlabamaStale Small, ClarenceM . Jr. ··opening of BarQuality of LifeSurvey Court"55:57 Lewis,Chris tine Whitesell,Goodson, Results"55: 152 Jane R., & Culverhouse, Renee "ExecutiveDirector's Report" 55:330 Smith, Robert Sellers "Overviewof Daniel"The Tort of Outrage in Norris, RobertW . "Opinionsof the AlabamaTaxes " 55:369 Alabama.: EmergingTrends in Sexual GeneralCounsel" 55:20 Harassment" SS:33 Stevens, James G." Whal ts ThisThing CalledUST?" 55:220 LITICATION OPlNIOSSO F THE GENERAL COUNSEL ~ AlabamaClass Action" Alan T. Stewart,Charles D .. Weed, EdwardM .. Rogers55: I 05 Atlorney/\\ritness55:289 & Piggott, PhilipC. "Patternand "TheAlabalt\11 Class Action" Part Tu-o Contractsto Actas Substitute Counsel for IndigentDefendants 55:342 Practice:Discovery and Useof Evi AlanT. Rogers& GregoryC. dence-A Defendant'sPerspective" Cook55:158 FinancingArrangements for LegalFees 55:20 55:233 PercentagePees in ForeclosureSales Lyons, ChampJr. "ATribute to Reggie 55:214 TAX Hamner-Ca llinga Spadea Spade" Professionall'ces, Disbursements and 55:273 "Overviewof AlabamaTaxes" Robert Other Expenses55: 190 Sellers Smith 55:369 Mccurley, RobertL. Jr. "Legislative Piggot, PhilipC., Stewart,Charles D. , Wrap-Up"55:49. 55:H 7, 55: 144 TORTS & Weed, EdwardM. "Patlem and 55:210, 55:276, 55:332 Practice:Discovery and Useof "Liabilityof Professionalsfor Negligent Evidenc~ Defendant'sPerspec Certification•William H. Hardie MEMORIALS tive"55:233 55:226 Bankester.Claude E. 55:255 "TheTort of Outragein Alabama: Barnard,Joe Graham55:386 PROFILES EmergingTrends in Sexual Callaham,Lindsay Clay J r. 55:321 Harassment" ChristineWhitesell Dodd,Annelle Clark 55: 124 John ArthurOwens 55: 150 Lewis,Jane R. Goodson& Renee Engel,Ben A. 55:254 ReginaldT. Hamner55:269 DanielCulverhouse 55:33 Garrett. MillonG uy 55:256 "Wrongful Birth:A Practitioner'sGuide Garth, Horace E. III 55:258 Rogers , AlanT. "TheAlabama Class to a NewArrival" Belinda L. Kimble Croom,W inston I'. Sr. 55:321 55:84 Harris, Julian 55:384 Action"55: 105. "The AlabamaClass Harris, NormanW. Jr. 55:254 Action"Part II 55: 158 "Wrongful Supervision: NewAttention Harrison, GeorgeM ortimer 55:60 on an Old Tort" J. Mark Hart 55:96 Hobbs.Samuel Ear le Greene55:257 Rumore.Samuel A. Jr. "Building Hogan, Roscoe B. 55:256 Alabama'sCourthouses" Chilton Wea'fr , Penny" WhoR epresentsthe Howell,T. 0. 55:384 55: 17. Perry 55:79, Greene55:146. Poor?"55:383 Johnston,Gilbert E. Sr. 55:321 Hale55:2 I I, Sumter 55:285 , Jones.Gilbert Ernest Jr. 55:125 Marengo55:337 Weed. EdwardM ., Piggott,Philip G., Keeling,Frank Marion Jr. 55:61 & Stewart.Charles 0 . "Patternand Long,Grady Jackson 55:258 Scruggs,William D. Jr. ·A Tributeto Practice:DISC011ery and Useof Macon.Joe A. Jr. 55:255 ReggieHamner -The Constant Evidence-A Defendant's Marsal. M.A. 55:194 Professional"55:272 Perspective"55:233 Masters, JosephJ erome Jr. 55:60 McEtroy,Jud ge James Russell55:386 .Mims.W alter L. 55:59 Seale,J ames ft (Spud)"P resident's West,H erbert.Har old Jr. "Young Parson,Connie Walter 55:254 Page" 55:4, 55:68, 55:132. 55:200 Lawyers' Section"55:314 THEALABAMA LAWYER JANUARY1995 151 DISCIPLINARYREPORT Disbarments • On October 26, 1994,Anniston attorney and former Circuit • Birmingham lawyer John HaNey Wiley, Ul was disbarred Judge Harold G. Quattlebaum was disbarred from the practice by order of the DisciplinaryBoard for failing to comply with an of law in the State of Alabamaby order of the AlabamaSupreme order of the DisciplinaryCommission in violation of Rule 2(d) Court. Quattlebaum was found guilty or violating Rules 1.3: of the Rules of DisciplinaryProcedure; for knowinglyfailing to l.4(a); 8.l(a); 8.4(b); 8.4(c); 8.4(d): 8.4(g); DR 1-J02(A)(4);DR respond to a lawful demand for information from a disciplinary l-102(A)(6).Quattlebaum was found guilty by default of filing authority in violation of Rule 8.1 (b). Rules of ProfessionalCon fraudulent homeowners insurance claims with various insur duct (ROPC):for failing to promptly deliver to a client property ance companies, filing fraudulent attorney's fee declarations that the client is entitled to receive in violation of Rule l.15. with the Slate of Alabama,and willful neglect of legal matters ROPC;and for engaging in conduct that adversely renects on entrusted to him. Quattlebaum did not appear at the hearing on his fitness to practice la,,, in violation of Rule8.4, ROPC. these charges and did not file an appeal from the Disciplinary On September 29, 1993, Wileywas notified by certified letter Board's actions. lASBNo. 93-1601 that the Disciplinary Commission had determined that he should be publicly reprimanded, without general publication, Suspension and that he should make restitution in the amount of $2.500 • Dothan attorney Gregory P. Thomas has been suspended to clients A and B. On February 2, 1994. Wiley ,vas requested from the practice of law for a period or 91 days by order of the by certified letter to inform the Disciplinary Commission Disciplinary Board of lhe Ala.bama State Bar. In May 1992, whether he intended to make restitution to his clients, A and Thomas was placed on probation for a period of two years in B. Wileydid not respond to this letter nor did he make restitu connection with disciplinary matters that were pending tion to his clients. Formal charges were filed against Wileyfor against him at that time. The order suspending Thomas for 91 the above violations on March 25, 1994, and Wiley filed an days was entered in response to Thomas· plea of guilty to hav answer to the charges on May 10, 1994. On May 18, 1994, the ing violaled the terms and conditions of his two-year proba state bar filed its first set of interrogatories. The Disciplinary tion. IASBNo. 89-313] Board, on July 19. 1994, issued an order compelling WIieyto answer the above interrogatories. Wiley did not comply with Public Reprimand this order and an application for default judgment was filed on • On November 4, 1994. Montgomery attorney Donald G. Augusl 12, 1994. The DisciplinaryBoard, on August 29. 1994. Madison was given a public reprimand without general publi issued a default judgment against Wiley and set a hearing lo cation resulting from his being found guilty of willful neglect determine discipline on September 23, 1994. Wiley did nol and misrepresentation by the Disciplinary Board of the Alaba respond further nor did he attend the hearing of the Disci ma State Bar. Madison agreed to represent a woman from plinary Board on September 23, 1994.Al the conclusion of this Sacramento, California in a matter involving fraud and breach hearing, the Disciplinary Board determined that Wiley should of contract claims. The client had purchased a restaurant be disbarred and that he should make restitution lo his clients, building and had it moved to a lot in LowndesCounty, where it A and B, in the amount of $5,250. was to be remodeled. On March 18. 1991, the client paid Madi The Supreme Court by order dated November 22, 1994 dis son $647 to proceed with the case. He told her he would get it barred Wiley effectiveNovember 10, 1994, and struck his name filed in the next week as the client was leaving for Saudi Ara· rrom the roll of attorneys of the State or Alabama.lASB No. 94- bia. By August 3, 1991, Madison had still not filed the action 0931 and he was terminated by letter on lhal dale. Madison respond ed lo the termination letter and enclosed a copy of a draft com plaint, which he said he would file. At that point, Madison had been paid over $2,000. The client called Madisonand gave him 1995 BAR DIRECTORY U1eauthority to continue with the representation. Madison still failed lo file the action. On or about September JS, 1991, Please c heckyour address aad telephonenumber in the cur· the client checked with the court in LowndesCounty and upon rent (1994)edition ol theAlabama Bar Directory. I( anythingi s learning that nothing had been filed in her case. she had noth incorrect,mai l or laxchanges by February15. 1995 to: ing further to do with Madison. She filed a grievance in December 1991. On March 4. 1992, Madison wrote to an Al.ibamaSla te Bar, Attn:Membership Services, P.O. Ba. 671, Montgomery, AL 36101 investigator from the Montgomery County Bar and staled that FAX (334) 261-6310 he had mailed the complaint to LowndesCounty Circuit Court for filing. He had not done so. and did not actually file the Anything receivedalter that datewill not be reflected in the action until May 6. 1992, or one day before his appearance 1995directory. Please check Y9ur information today! before the Montgomery County Grievance Committee. IASB No.93-085] • 52 / JANUARY1995 THE ALABAMAl.J.\ WYER RECENT DECISIONS By DAVIDB. BYRNE,JR . and WILBURC. SILBERMAN firmed the circuit court's suspicions SUPREME COURT na-growingoperation. when it reversed the lower court and At his trial. Ford sought to suppress OF THE UNITED STATES held that the plain language of the the evidence seized as a resu It of the statute did not require proof of an overt warranlless use of the thermal imager. Federal drug conspiracys tatute act. The Court rejected Shabani's The district court denied his motion aod does not require government to request lhllt it infer such a requirement he was subsequentlyconv icted for pos prove overt net committed in from congressionalsilence, noting that session of marijuana wilh intent to dis furtherance of conspiracy It had declinedto do so with other con, tribute. In his appeal, Ford urged lhe Shobani v. UnitedStall!$, Case No. spiracystatutes in the past. SeeNash u. circuit court lO find that the search vio 93-981 (November I. 1994). In one of UnitedStates, 229 U.S.373 (1913), and lated his reasonableexpec1ation of pri its first criminal casesof the new term, s;nger v. UnitedStales, 323 U.S. 338 vacy in the heat emanating from his the Supreme Court was asked to con ( 1945). Morto\'U, since the general con mobilehome . sider whether 21 U.S.C. Section 846 spiracystatute and the conspiracyprovi On appeal, the appellate court noted requires the go\'emment to provethat a sion of the 0111,lnizedCrime ControlAct that the processof establishinga legiti conspirator committed an overt act in of 1970 both require an overt act, it mate expectationof pri11acyls •a twofold furtheranceor an allegeddrug conspira appeared clear to the Court that requirement, first that a person have cy. In a unanimous decision,the Court Congress' choice to omit the require exhibitedan actual (subjective)expecta concludedlhot il does noL ment In Section846 was quite deliberate. tion or privacy and, second, that the Shabani was charge d under the expectation be one that society is pre statu te with consl)iracy to distribute pared to recognizeas 'reasonable"' J THE LAWYER ALABAMA JANUARY1995 I 53 With West's Federal Repo,1ers series yoi, have to buy all 13 circuits. MICHIE'S'"FEDERAL LAW ON DISC : FORLAWYERS WHO WANTTO DO FEDERAL RESEARCH WITHOUT TAKING ON ((you litigntefederal cases,you from special LID(IS* libraries. know exactly which circuits you occd THENATIONAL DEBT. • Mi chie's Federal Law On Disc. to research. Youwam that case law on your desk widiout U.S. Supreme Court and one clrcult for as little as $49 the needlessexpense of owning a national library. lji« •l/:5• • month~ Each additional circuit just $6.50 a month~ That's why Michie created the first federal The speed and convenience you want without CD-ROM library that lets you choosejust raking on the national debt. what you use-and enjoy substantial speed and savingsove r West's FederalReporters. THE Each Micnie federal disc contains the MICHIECOMPANY full-text decisions of one federal circuit. We also publish a complete U.S. Supreme Court With Michie you can LEXIS'·NEXIS'fi 71tf'qz library on Cl)..ROM. be nwre .. . judici ous . Our Folio* searchsystem is the best in enc business,giving you a clear path to law on poinc in either 800/356-6548 DOS or Windows™versions. And Michie's optional Online Connection TM gives you the latest circuit court updates drug-related work for a co-conspirator 1994). Stone was convicted of driving guaranteeas that contained in the federal where notice was given only minutes under the innuence or alcohol. On Constitution." Ex parle Hill. 366 So.2d before voir dire. The Issue required the appeal, he argued that the trial court 318,322 (Ala. 1979). appe11ls courl to examine the construc erred 111henit denied his motion to sup Secondly, the court thoroughly exam tion or Fed.R.Evid.404 (b)'s reasonable press evidence of the roadside field ined the traffic stop in issue to deter notice requirement. sobriety tests that he was required to mine 111hetherthe stop constituted a In 1991, the Rule was amended to perform by the arresting offi«r. Specifi "custodial interrogation." which would require the government LO give reason· cally, Stone argued that he was entitled require 1>1;,,andawarnings. In its analy able notice In advance or trial of Its to Miranda 1varningsd uring the road sis, the court diITerentlated between the Intention to present "prior bad acts" evi side slop, and, that the omission of "custody" that would trigger the right dence, If the accusedhas requested the those warnings rendered the field sobri to Miranda warnings and a "seizure" notice. The policy behind the amend· et)•tests, or at least the verbal aspectsor that triggers Fourth Amendment con men1is ·to reduce surprise and promote those tests. inadmissible. Tot court of cerns. Custody arises only if an Individ earl)•resolution on the issue of admissi criminal appealsrejected this argumenL ual's freedomis restrained to the degree bility." Fed.R.Evld.404(b) Commillee's To begin 111ilh. the court declined to associated with a formal arrest. While Judiciary note. No specific time limit ls hold. as Stone urged, that Article I, Sec lhe stop of a motorist who is suspected impo~ by the Rule beyond lhe general tion 6. o( the Alabama Constitution. o( driving under the influence is requirement of reasonable notice. and 111hichprOllides that an individual"shall unquestionably "seized" within the whal is reasonable. according to the not be compelled to give evidence meaning of the fourth Amendment. it Committeenotes, dependslargely on the againsthim.self. " is broader in seope and is equally dear that the motorist Is not circumstances of the individualcase. In provides greater protections than the ·In custody" under Miranda when he is this case, the district court found thnl Fifth Amendment to the federal Consti stopped and brieny questioned. Thus, the defensehas six days' notice (because tution which states that no p;irson"shall like a "Terry stop." a motorist sus~cted the witness was called during the latter becompelled in any criminal caseto be a of drunk driving may be briefly part of the C:0.-emment's case). witness"9(Jfnsl hlinself." In doing so. the detained, asked questions. and be asked The circuit court set out three factors court reaffirmedthe AlabamaSupreme to perform simple roadside tests. If the that should be considered in detem,in Court's statement that "despite Lhediffer oflicer's suspicions turn out to be ing the reasonablenessof pretrial notice ence in language, the Alabama privilege unfounded then he must release the under 404(b): againstself-incrimination offers t he same motorist immediately. "(I) When the Government, through timely preparation for trial. could have learned of the availabilil>• of the witness: ''(2) The exten t of prejudice to the opponent of the evidence from a Jackof lime lo prepare; and "(31How significant the evidence i$ to the prosecution's case." In applying those factors to the case before them, the Eleventh Circuit held that reasonable trial preparation would not have revealed the testimony to the prosecutorany earlier. and derensecoun sel did not indicate any additionalmea sures that he could have taken to rebut Judicial Building Tours the testimony if more noli<:lihad been The Supreme Court of Alabama invites you to tour the given.The testimony 111ent directly lo the issueof the defendant'sawareness of and JudicialBuilding located at 300 DexterAvenu e in down participationin the alltged conspiracy. town Montgomery. Tours are available Mondaythrough Fri --- -- . ALABAMA----,,. COURT OF -nu~••=~~~•• '• • -~ • T day, 8:30until 4:30 p.m. To schedule a tour, ,P.~EALS ,fR.'~~ call (334) 242-4347 or 1-800-236-4069. DUI suspects not entitled to Jtfira11da warnings Stone 11. City of Hu11tsuille.Ct.Crim. Apps.• CR No. 93-6 I 7 (September 30, THEALABAMA LAWYER JANUARY1995 / 55 U.S. District Judge holds that IRS the terms and conditions of loans to 30-day limitation of llule 4003(bl from technkal ,•iolatlons of automatic stol)' other customers do not bind the court, the conclusionof the creditors' meeting do not justify contempt holding the risk factors in such modification held pursuant to Rule 2003(a) is fatal. In re Jo,1/l Engineering,Inc.. In B.R. should be minimal. and the rate of The court viewed this CJISe as being no 387 (N.D. Ala. 1994-J. Propst). Jove interest and term should be that of a different from the Taylor case. e\•en Engineeringfiled a Chapter 11 petition commerciallender considering risk and though the trustee contendedvigorous· on October 20. 1992. Thereafter, the security. Here Judge Caddell held both I)•that only one dollar could be set aside IRS,although being listed as a creditor, the rate and duration to be unreason· as exempt, as that was all claimed. sent various delinquencynotices to the able. Me did confirm the value estab· debtor. requesting paymentof taices.On lished in April to be the same as that of Comment: March 4, 1993, it filed a proof of claim the effectivedate of the plan (approxi· If heed Is taken of this case, il or S304.239.08. Even so. the IRS COO• mately three months later). but held behooves trustees and cred itors to tinue d with its not ices, and on one that the plan failed to meet the ''best examine schedules careftilly in small or occasion. an agent called upon the interests of the creditors test" because no-asset cases. Perhaps a trustee could debtor. Jove med a motion to hold the it provided for a SS.000 exemption for continue the meeli11ggenerally without IRS in contempt, and then on motion of debtor's deceased wife. The court. in concluding It. and. thus. technically Jove,the case was withdrawn to the dis citing AlabamaCode §§6-10-6 and 6-10· still have 30 days from the dale of a for. trict court for consideration of the I I stated that the proper date for deter· mal conclusion, but I question the bankruptcycourt's authority lo rule on mining bankruptcy exemptions is the legalityof so doing without a valid rea· the motion for contempt. In his opin date of the order for relief, and that the son. ion, Judge Propst detailed the evidence, deceased wife's homestead exemption Substantke consolidation in husband showing the numerous letters written was not D\'.lilableto him on that date. and wlfe case not allowed by Jove's attorney to the IRS requesting Therefore,to claim such under a Chap Reidf!r v. fDIC, 31 F'.3d 1102 (I Ith that it cease its efforts to collect fTom ter 12 plan when it would not be Cir. Sept. 13, 1994). This is a case of the debtor, and the actions taken by the allowed under a Chapter 7 liquidation first Impressionin the Eleventh Circuit. IRS. He distinguished the IRS actions violated§ 1225(,1)(,I). The Reiders,husband and wife.encoun· as being extremely mild in contrast to Lered llnanclal difficulties causing them egregious action delineated in In re Comment: to joint Chapter 11. in an order of Lile, 103 B.R. 830 (Bankr. S.D. Tex. This roth cr short case is a good filea December 15. 1986, the bankruptcy 1989).Jud ge Propst determined that no review of Chapter 12 law, but do you court held lhal certain real estate was malice, arrogant defiance, or reckless think the debtor would have been enti· lilied solely in the wife. thus denying disregard was shown. He held it inap tied to the two $5,000 exemptions had any exemption right in the husband, propriate Lo award attorney fees for the wife died pre-pelillon? Footnote 2 and holding that he had not equitable contempt. but did award S500. stating states that the wife was not a joint interest in the property. The PDIC, lhal this amount wouldhave been suffi. debtor, but does not indicate percent· which was a creditor only of the hus· cient to resolveany purported dispute. age of O\\Titrshipof the house. band, mo\'ed for substantive consolida Look out for exemption claims in all tion and the bankruptcy court granted Chapter 12 modifi~tions or rights casu-if not, store may be lost of secured lender, time or valuation In re lois lmogl!fle Green, 31 F.Jd of assets, and ''best interests test·· 1098, I Ith Circuit (Ala.). September 13, David 8 . debtor not entitJed to S5,000 1994. Debtor filed a Chapter 7 case in Byrne, Jr . survivingspouse homestead exemption r ebr uary 199 1. She claimed as an 0.,.,0 B Byme, Jr ju Maller of O'Neal Rice, debtor. 171 t,aduate ol ine Umver exempt asset a personal injury lawsuit CIIVof Alaba,na,where B.R. 399, Bkrlcy N.D.Ala .. August 19. valuedat one dollar. Neither the trustee he receivedbolh his 1994, J. Caddell. In this Chapter 12 case undocg1adua10and law nor any creditor objected.H owever, the degrees Htt 1sa mem pre-petition,debtor had obtained a loan trustee followed the matter , being ber ol lhe Morugomay in order to construct poultry houses. In rlfffl ol Robe$on & Bel5ef instrumental in obtaining a S15.000 It'd~ lNt crunit\11 l 993, debtor fileda chapter 12 petition, settlement. The bankruptcycourt judge and in 1994 a plan supplemented by denied debtor's motion Lodisburse all later amendments was filed. The value but one dollar lo debtor. On appeal,Dis · -·WIibur C. Si.ll>ennan of the real property "'as establishedby trict Judge Virgil Pittman reversed W"""'G s-man .ol the court on April 18, 1994after which holding that the failure to object pre· ""S,n,ngt-am ...... further plan amendments were filed. eluded the trustee from challenging Wlggc-. 4 Chlds. ••• The lender bank objectedto plan confir debtor's claim tot the sdtlemenl funds. --dUn,ve,. mation because of debtor's proposal to The trustee appealed. claiming that all -.. ly"'1dl1le~ol·-· pay over a 15-year periodat 8.5 percent. but one dollar belonged to the estate. hlllaw CfeOtM t,omcne The courl held that altho ugh The Eleventh Circuit held that under -andUnlva,slty'sSohool ol § 1222(b)(2) allows modificat ion of Taylor v. Frl!(I/Ond& Kronz, l 12 S.Ct. Law He oovms the rights of a secured creditor, and that 164~ (1992), failure to object with the banktup1cydOC:IIIOOs 56 1 JANUAllV1995 THE ALABAMALAWVER the motion. The district court affirmed ness outweighsthe economicprej udice approximately 60 substantive amend· the ruling but. on appeal. the Eleventh or consolidation." ments. plus some technicalcorrections. Circuit reversed. ll bottomed its deci The court cautioned against confus In brief.some or the changesare: Chap sion on its historical equitable powers, ing joint administration with substan ter 13 limits are raised lo one million together with §302 Uoint cases) and tive consolidation, as the former merely dollars;in Chapter 11 casesof S2 million PRBPIOIS (bl (consolidation or joint is a procedural tool. In the ca.se sub or less there is a provision for a fast administration). ll reviewedthe history judice, the court held that because of track process; expeditedprocedures on of commingling of assets by corpora weak evidence on substantial identity, automatic stay; Increasedcompensation tions, with special attention to lhe and strong evidenceof lhe separateness for trustees; aulhority for bankruptcy injustice to creditors under particular of the real estate in fact and conception judges lo conduct a Jury trial with con facts of each case. The court discussed of the public,the recorddid not support sent of parties; reversal of the DePri:zio lhe emergence of two central themes, substantivecon so lid otion. decision:increase orperfection of pur (I) disregard of corporate formalities chase moneysec urity interests; and sell and commingling of assets may indicate Comment: er's right to reclaim goods, from ten to appropriateness of consolidation, and The opinion consisted of ten pages. 20 days;allowance of validsecurity inter (2) consideration of harm to creditors As this is a seminal case. it is must ests in rents (includinghotel rooms) to determines the proprietyof so ordering, reading for any caseinvo lving substan lenders; in single asset real estate cases. but converselya creditor may show the tial consolidation. whether the repre placingburdens on debtors to file plan injustice because of its reliance on the senta tion of the attorney be for the within 90 cuys: increasedprotection to credit and assets of one of the entities. movantor for the objector. lessor of personalproperty; clarification The court reiterau~d its holding in East of rights or mortgagorson home mort. group Properties, 935 f'.2d 245 (11th New BanlcruptC)• Ltgialation gages under § 1322:protection of child Cir. 1991) as to substantive consolida The newbankruptcy legislation passed support and alimony: and proteclion tion of corporations. that pursuant lo October 7, 1994and wassigned by the $inst discrimin.1torylrealment for stu equitablep0wers granted in § I 05. con President on October 22, 1994. With a dent loans. Pinally, it establishe s a solidalion may be ordered upon the few exceptions, it becomes immediately bankruptC>'review commission to sub· evaluation of "whether the economic effectivefor cases thereafterfil ed. There mil a report within two years a~er its prejudiceof continued debtor separate- are approximately 100 pages containing first meeting. • MANCHESTERPRESS --- PUBLI SHERS--- P.o Box S5010l • 8inn,ngham, AL 3S10S • (~05) l51-S6Sl ClvilActions a1 LawIn Alabama, Second Edition ~ $15 00 xxxx,i 686 p,gr:>f indud« 1993 pocketp, ru) Civil Actionsat Lawin Alabama, 1993pocke1 pon s O S32 SO 28S P•it<~ S1t1.nJ111rc ------Equitable Remedies nnd ExraordinaryWri ts O Sss 00 In Alabama,Seco nd Edition AcldttK ______xxx,x, 636pJgc- s (NEW EDITION) C,ty ______Trial Practiceand Procedurein Alabama, CJ S79 00 SecondEdition ~-.z.,______xiv,. 786 i,.gn Tool-1:ncim Worker'sCompensatio n for On-lhe-Job Injuries O $17SO Cttd11 Unt •·------In Alabama 19?~ poclc1 p,1rt,, 120 page< r...,,, ,.. ------ THE ALABAMALAWYER JANUARY1995 / 57 ALABAMA STATE BAR SECTION MEMBERSHIP APPLICATION To join one or more sections, comple te this form and attach separa te checks payable to each section you wish to join. Name ______Firm or Agency ______ Office Address ------ Office Location------ Office Telepho ne Number ______ Sectio n Annual Dues Administrative Law ...... $20 Bankruptcy and Commercial Law ...... $ 20 Business Torts and Antitrust Law ...... $15 Communications Law ...... $15 Corporate Counsel ...... $30 Corporation, Banking and Business Law ...... $1 O Criminal Law ...... $1 O Environmental Law ...... $20 _ __ Family law ...... $30 ___ Health Law ...... $15 Labor and Employme nt Law ...... $10 if prac ticing less than 5 years, $30 if practicing 5 or more years li tigation ...... $15 ___ Oil, Gas and Mineral Law ...... $15 Professional Economics and Technology Law ...... $25 ___ Real Property, Probate and Trust Law ...... $10 Taxation ...... $15 Worker's Compensatio n Law ...... $20 Young Lawyers' ...... 0 TOTAL Remember: Attach a separate check for each section. Mail to: Sections, Alabama Slate Bar, P.O. Box 671, Montgomery, AL 36 101 58 /J ANUARY1 995 THE ALABAMALAWYER YOUNGLAWYERS' SECTION YLS EXECUTIVECOMMITTEE his year·s ExecutiveCommit better. The seminar again will be held at high schoolst udents an excellento ppor tee of Lhe Alabama Young the Sandeslin BeachResort on the third tunity to learn more about our judicial L.awyers' Section held its weekend in May (May 19-21)a nd you systemand how It operates. (irst meeting October 17. may now make reservationsat the resort Ill1994 at the state bar headquarters in by calling 1-800•277-0800.The seminar Minority Participation Montgomery, Alabama. Among the is an excellent opportunity for young Conference items discussed were preparations for lawyersto further their continuing legal The Section began the MinorityPar several of the :section's upcoming pro educationand meet other young lawyers ticipationConference last year. The con· jects and the results of projects com from across the state. Registration ference provides a forum for minority pleted in the past year. Although it materials for the seminar will be sent high school students lo meel with would be impossible to describe all oi out in early February and again in minority judges and lawyers to learn the section's projects in detail, I will March. more about the opportunitiesof a legal lake a moment to mention some of the career. Fred CT11Yworked hard to orga highlights. nize the conference and approximately 75 high school students participated. Annual bar admissions The Executive Committee concluded ceremony that the conference \\las a resounding The Executive Committee discussed success and should be continued on an preparationsfor the then-upcoming bar annual basis. Several waysof expanding admissions ceremony which was held the conference to reach more minority October 25, 1994. Thanks to the hard students and increaseparticipation ,,·ere work of Tom Albritton and Bryan Hors also discussed. ley, I can report that the ceremonywas The:seare highlights of a few projects a huge succus. Over l .000 people in which )'Dunglawyers are involvedand allended the ceremony in which all of are examplesof projects in which young the Alabamaappellate courts convened lawyers are serving their community at once to admit 357 applicants to the and their profession.I take this opportu practiceof law in the courts of the Stale nity to encourage young lawyers to of Alabama.Judge I larold Albrittonwas become even more Involvedin serving also present and admitted most of these HAL WEST their communitiesand their profession. same applicantsto practicein the feder Lawyershave acquired a bad reputation al district court of the Middle Districtof with the general public and one way to Alabama, This newfeature, wh ich allows Youth Judlclal Program improve our repuUllionis Lhrough com admitlees to be admitted to both state The Executive Committee also dis munity service.I n order to Increasepa r andfederal courts al the same time, has cussed preparations for the upcoming ticipation by young lawyers, the been well received.After the ceremony. YouthJudicial Program. In cooperation Executive Committee is considering the new admillees and their guests with the YMCA.the Sectionco-sponsors undertaking a number of new projects attendeda luncheon in their honor. a mocktrial competitionfor high school in the upcoming year. If you have an students. Charlie Anderson has chaired idea for a good project or would like lo Annual Sendest ln seminar this committee for a number of years participate in these or other projects, AlsodiSCUS5td were the results of last and is to be commendedfor his tireless please contact someone on the Execu ~-ear'sSandestin Seminar which was an efforts in organizingthis program. Last ti"e Commitlee. even bigger successthan the year before year over 350 high school students par Although the need for young lawyers and for exceeded everyone's expecta ticipated, and even more participants to become more involvedin community tions. Last year approximately 280 are expected this year. Young lawyers service is great, before becom ing lawyersregistered for the seminar. Plans can participate by serving as coaches involved, we as young lawyers should for this year's seminar are already and organizing teams to participate in evaluate the lime and resourcesthat will underway and it is expected to be even the competit ion. The progra m gives be necessaryto fulfilI the commitment THEALABAMA LAWYER JANUARY I995 / 59 Needless to say, the community service Les Hayes Ill Bryan K. Horsley of lawyers often goes overlooked; how- Immediate past president Steiner, Crum & Baker ever, unfulfilled commitments only fur- Melton. Espy, Williams & Hayes ther th e poor pub lic perception of Christopher J. Hughes lawyers in general. Other people are Thomas B. Albritton Beers, Anderson. Jackson & Smith often relying on our commitments and Albrittons, Givhan, Clifton& Candis A. McGowan can be less than sympathetic to the Alverson Cooper,M itch, Cr~wford, pressures of work and family. However, Cynthia Lee Almond Kuykendall & Whatley once becoming involved you will find Universityof AlabamaSchool John H. Nathan the experience of community service to of l..aw be as rewarding as any in your practice. J. Cole Portis The members of the 1994 Executive Charles L. Anderson Beasley, Wilson, Allen. Main & Committee and lhe firms at which they Parnell. Crum & Anderson Crow practice are as foll ows: Gordon G. Armstrong, Ill Archibald T. Reeves, IV Herbert Harold West, Jr. Hand, l\rendall, Bedsole. President MelanieMerkle Bass Greaves& Johnston Cabaniss. Johnston, Gardner, Cabaniss,Johns ton, Gardner. Dumas & O'Neal Dumas & O'Neal Raebel D. Sanders Pierce, Carr & Alford Alfred I'. Smith, Jr. DavidA. Elliott Christopher A. Smith President-elect Burr & Forman Smith & Smith Maynard, Cooper, Frierson & Cale Denise A. Ferguson Bell & Richardson Elizabeth C. Smithart Anthony O. Birchfield, Jr. Jinks, Smithart & Jackson Sec.retary MichaelD. l'reeman Brannan, Guy & Birchfield Jacob A. Walker. llI Balch & Bingham Walker, Hill, Adams,Um bach, Robert J. Hedge l'red D. Gray, Jr. Meadows & Walton Treasurer Gray. Langford,Sa pp, Judson W. Wells Jackson. Taylor & Martino McGowan & Gray Barker & Janecky • Gene Roberts Caton AlfredGeorge Hecht Earl Davis McNeal Huntsuif/e Colfinsuif/e Huntsuill e Admill ed: 1979 Admit ted: 1951 Admitt ed: 1976 Died: July 31, 1994 Died: October 24, 1994 Died: October 12, 1994 Robert Cliffo,rd Fulford Knox McGeeIde Thomas GillespieSteele Birmingham Anniston Athens Admilled: 1942 Admitted: 1926 Admitted: J 938 Died.· October 29, 1994 Died: July 4, 1994 Died: July 31. 1994 Claude Harris, Jr. John Bartley Loftin Kenneth Wayne Turney Tus 60 I JANUARY 1995 THE ALABAMALAWY ER and graduated therefrom ,n January notably Blount. SI. Clair and Shelby. Charles L. Howard,Jr . 1949, with a degree of B.> of the MadisonCounty Cnminal Defense anda goouand competent lawyer.and Earl Davis McNeaJ .\Mociation.and ll'IIEREAS. he accomplished all of EREAS, WHEREAS.ht w.u adm1lttd to pr.tt· these w,th ,uch gr.,ce and humor .u to t:arl Davis lice inth•<:ourtsof the St.lit c,( Alabama, makehim a cherished friend to us all and all J;nited States Diltrlcl Courts situated he will bt sorely missed. C N •• I has suddenly and in the State of Alobama.lhe FiRh United NOii' Tm:REf'DRE. BE IT RESOLVED tr>gically been States Circuit Court of Appeals, and the by the I luntsvllle·M•dison County Ila ,· taken from ou r 81eventh United StMu Circuit Cour1 of Assoclntlon th1,1o ur bar and our commu• midst. and Appeals, and nlty have suffered a great '°"in the pass· Wll EREAS, WHEREAS, &trl was • member of Phi i ng of our brother lawyer, EJrl Davis Earl DavisMcNra l Alph.i Della LegalFraternity and lhe Far McN.al. and thot we sympatheticallyjo in was the son of Mr. rah Law So tidy of the Un,vr rsity of with h,s Nrents. Mr. and Mrs. Richard and Mrs. Richard Me.'iealand was a Ille· ALlbama.hod scn-.d ,., president of Cir :-tcNealihLS \\1(t, ~tuy r.athaioe:~ tc.'le.1J: long res,dtnt of Huntsville. Madison cle K at Auburn Univtrsity. ,..,. a mem their children , Davis Milner ~lcNul, Counti•. and • graduate from Lie• l hllh ~r of the Colleg, of Young Democrats. Rectcca Connolly Wells. •nd ~lary School.and had been a member of the Auburn tJni· lsabellt ll'tll!: his brother TeTrJIRichard WHEREAS,he was graduated from ,•ersityAlumni Association. the Universi McNeal:and other membeN of his fam,11· Aub11rn Universitya nd the Universit)' or ty of Alabama Alumni Association, and and loved onts in mourning his 1-asslng Alah:tma School of Law. and thereaftor had served on the Board of l>ireclors of while honoring his name, 'Ond by this returne d to Huntsvill~ to establish his the Friends of the Pub lic Radio in Resoluliou, w,: in some small way extend practice of law,and Hunts,•ille. Alabama. Additionally, Earl lo his family our sincere and h~artfelt \VIIE RE,\S. Earl was the loving hus· was a veteran of servico In the United symp:tthy,compassio n and cohdolence. banJ or Mary Catherine McNealand was States Army.and the devoted father of Davis Milnu WHEREAS,E.lrl W3S lov THE ALABAMALA WYE R JANUARY1 995 / 61 University. He practiced law in Mobile alion for his long and meritorious ser Joseph Charles with Sullivan & Cameronand later as a vice to our professioni Sullivan,Sr. partner with lhe flnn of Hamilton. But· Mr. Joe tended to specialize in real ler, Riddick,Tarlt on & Sullivan. property law and was recognized and HEREAS, He was elected to the Hou$Cof Repre admir.edby his follow lawyers as being J oseph sentatives,State of Alabamai n 1942, re very skilled and .ible in this and other WCha rles elected in 1946 and served in lhal areas of the practice of law. He had that Sullivan , -Sr._. a capacity until l950. H e also served on mischievoush\l inkle in his eye; he ah,•ays d isti ng.uished the War Emergency Council created in had a good word for everyone and was member of this 1943. He co-authored a poll lax e.,emp lovedand respected by one and all. association passed tion bill for World War II vet~rans and He was a devoted father and family away on May 5. introducedthe first bill for expansionfor man, leaving surviving him two daugh 1994;and, lheAlabamaState Docksin lhe l945 ses ters, Ruth Austill and ,'\allie Connell, WHEREAS,t he sion. His clvic.an d profe~ional3ctivUies both of Mobile; three sons. Joseph C, Mobile Bar Associ• and accomplishments included serving Sullivan Jr .. Richard C. Sullivan and ation des1resto remember his name and as president of the MobileBar ~soc ia Patrick M. Sullivan, all of Mobile; one recognizefi is contributions both to our rion in 1957, a nd as a member of the sister. Isabel Sullivan; and numerous profession and to this community; boards of the F'irst National Bank of grandchildren. Joe, Jr. is a partner in the NOW,THE REFORE, BE IT RESOLVED Mobile, the Mobile Area Chamber of Hamilton, Buller finn. THAT,"Mr. Joe /' as he was affectionately Commerceand the UnitedFund. He also known to many membersof the bar, was was co-founder of Cit izens Bank in RichardBounds born in Mobile where he attended Mobile in 1957. He practiced law in President parochial schools and received degrees Mobile· more than 60 ye_arsand was rec MobileBar Association from both Springhill Colle~eand Loyola ognizedby the stale and local bar as.soci- country in World War II as a member oi sons, James C. Cann, 111, M. KeithGann, James G. Gann,Jr. the United Stales Navy, and faithful to Timothy C. Gann, and David W.Ca nn; his comrades helped organize lhi: 50th and also by belovedgrandchi ldren, Mary EREAS, James C. Cann, Jr. Anniversaryof the Vl2 Navyprogram of Paige Cann, Michael K. Gann, Stephen as a member of the Birmlng SamfordUniversity h eld in 1992; and, P. Cann. and WalkerJ . Cann;and am Bar Association until the WHEREAS.James C. Gann, Jr. was a Wt!EREAS.James C. Cann served Limeof his death on September 14, 1994; dedicated and valued member of Lhe over 30 years wilh distinction as counsel and, Highland United Methodist Church, for SouLheentral Bell and A'fl',,1'before WHEREAS, James C. Cann, Jr. was a se.-ving a$ chairman of the board. He was enter ing upon 12 years in the private member of the American Bar ;\ssocia· a loyal and active member of the Down• practiceof communicati"ons la,v;and, tion, the AJiibamaS tale Bar and numer town Birmingham YMCA, being in par WHEREAS, he was distinguished as a ous other organizations throughout the ticular an avid practitioner of the sport dedicated,vigorous and tenacious advo city and state;,and., of handball. He 1>roudlypromoted Lhe cate on behalfof all citizens enlisting his WHEREAS,J ames C. Cann, Jr. gradu activities of V,estavia High School by representation;and. ated from the University or Alabama membership in the Booster Club and by WHEREAS.we desire lo «press oyr School of Engineering and School of providing commentary on the $eminal deep regret and sense of los.,at the pass• Law;and, home footballgames . He also participat ing of our colleague from our honorable WHEREAS,h e was in fraternal kinship ed in civic organizations \\lith distjnc profession. from the world of business.. with brothers and sisters of the fraterni tion, includingthe vice.presidencyof the and from lhe congress of society. ties and organi1.ations of AlphaPi Mu, Pi Birmingham Young Republicans Club; Tau €hi, and PHILOS while matriculat• and1 WilliamN . Clark ir)g;and, WHEREAS,h e is survived by his wife President WHEREAS, he honorably se,~•ed his of over 43 years. Mary S. Cann: four Birmingham_Bar i\$sociatlon PleaseHelp Us TheAlabama Lawuer "Memo rials"sectio11 is des ignedto provide mem~rs of the bar with infomwtion aboutU,e dtaUl o/ Uwircolleagues. The AlabamaSlate Bar and the EditorialBoard have no wayof knowing when one o f our mem~rs is deceasedun lessw• are notified. Pleasetake Ill< timeto provide us withthat information.If )'OU wishto "~itesomething about the individual's life and profess ionalaccomp lishmentsfor publi cationi n the magazine,pl easelimit )'OUr comments to 250 wordsand s,nd llS a pictureif pos.,ible.W e reser.oethe right to edita ll information submitted for the "Memorials" section.Please send notific.itioninform.,t ion to the followingadd ress:M arg>retL Murphy, TIie Alabama Lawger. P.O.Bo• 4156,M ontgomery,AL 36101. 62 / JANUARY1995 THE ALABAMALAWYER CLASSIFIED NOTICES A.ATES: Member s: 2 free llsungsof 50 words or less per bar member per calendar year EXCEPTfor ·position want· ed " or ·position offered' listings- $35 per insertionof 50 words or less, $.50 per additional word, Nonmembers: $35 per insertionof 50 words or less, $.50 per additional word. Classified copy and payment must be received according l o the following publishing schedule January 195 Issue - deadline November30 , 1994, no deadllne extensionswill be made Send classified copy and payment, payable to The Alabama Lawyer, to: Alabama Lawyer Classifieds, c/o Margaret Murphy, P.O. Box 4166, Montgomery,Alabama 36101 PAINTING : Original Max Helman paint· Laboratories . Dlplomate (certlfled ) FOR SALE ing of the Jellerson County Counhouse British FSS . Dlptoma1e (certifted) from 1874-1887. The counhouse build· ABFDE. Member ; ASODE; IAI; SAFDE; LAWBOOt • DOCUMENT EXAMINER : Certified LAWBOOt THE ALABAMAu\WYER JANUARY1995 / 63 DEPOSITION SUMMARIES : Parale· ARBITRATION AND MEDIATION : gals trained in all areas ol law wor1 64 /JANUARY 1995 THEAL<\BAMALAWYER FACTS/FAXPOLL: Talk About GoodN ews! That's just what we want to do-but we need a little help from you. The Alabama State Bar·sComm ittee on LawyerPublic Rela tions, Informationand MediaRelations wan ts to lel the public knowall the good things that lawyersa re doing in their communi ties. Andwe want to make it easyfor you to tell us what projects you are working on-just fillout this brief faxmemo and we'll do the rest! Help us Jet the public knowjust whoyou are-their neighbor.. .their friend... their lawyer! TO: Susan H. And1·es or Margaret L. Murphy AT: (205) 261-6310 FROJ\I: (Your Name) of the ______County Bar Association DATE: RE: (Public Service Activity/Event) Brief description of event: Were there any newspaper articles or photographs publicizing the events?______ Who should we contact for more information? ------ Phone# YOUR BEST SOURCEFOR CD-ROM IN ALABAMAIS WEST CD-ROM LIBRARIES™ O!tl)"l\'eslCD-R0\11.UlfllJ'ifS olT..-)oo 2 C:ONYENIENT COHNlc:noN CAU. TODAr FOIi mmpWAbbamilllll ht,ra,y-ml apnmier TO WESnAWl klb:d lllnry-<111\l'l>JIJlr CD-ROW Acllesslr£STLl\f