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1.... ~---- ...·--- ...... • ..., A Free AvisUpgrade ! $10 OffWeekly Rat ; ---, Tenn &a od Conditions Tt1n11.s :ind C4'ndlliO u 8 : Coufl011Vo)lld rn r ;, flm\,fiml".t1 1K"<•11~ u11u pj;,~dl' 011011 l 11tcm1l'di..1tc• OtfC) lluou!,!h A r.,11Si1.t' 1, 101.1, I (Group <1ch mugb n Full Sb:c •I-doc, (Cro1Jp E) C:-lH M.lx1mum u1~m(k- In (c.it1lup EJ car lt)r o 5-tlb)'mi nimum rcrual ill "''cekl)' rnics..C' ou1K1um us, ht• l~ nium (Gt\'Jlllp Gl Ofter Vlllid on dllil) , ""W kt•n/1 and w1.,..,~kly ta IC",0111 1)' &1.1m.•11d<'f\'Cl.11 li111 (• ol n:111-11:one 1)1.'1 1t'11tal MO)'IK' 1.lSC'CI In coCIJUJK.lion Cw 1>0n musebe sutnmdcrcd .i11lmc <1f rental~o n<-'per remnl. Cl)upoll w ith lwn tl~)(l ll!I0 11-- 1l«lll l '-' IC1 Bild dlM': THE ALABAMALA WYER May 1994/ 129 IN BRIEF Theafl'yer Alabama May 1994 Volume55, Number 3 Publle,hedseven 1l mes a year (the sevon1h!save It a l>OrdltoctO,Y e An Introduction to the Alabama Water R.uoun:ea Act ...... Ccaw I s • • l.WMn $::me,d A. fMllOtll. .Ao...... Bv iv;mams. Cox, Ill ...... - ...,- ....,- ....--,-- ...- ...- ...... - ....,- ...... - ... 116 --- ...... I\. ... . Mo,o...1•f ___,,,..,. ltDCM:0~Sr .. Mobllit-- .... -... -0. """" Alabama Law Foundation Award, CranU AtglNIO r. - ""'II-. 1...... ,,-·-·--··,-, ...... - .&wll"'Y...- Dootd ot Comml••lonert: 8g TracgA. Daniel ...... 189 IMCfo.111. e.:t,lt11td P. Tur,...,,.;,. ONIO,n• 2flCIOircuc. John A. N/c:tloll. l.WlfM • Std ~ Lynn Aotlt,rtton ~ . OIY1Qn• AU,Clrc:uiL Jot'n W. K...,, Ill, WIii • 611'1Cltailt,. Jonn,_.,. Ohw , II. ~• 911'1Clrwl, Pl.ct No, I, w• • P ~ . TUIICltooe.a• &II CW0111.P'-Ot ,_ 2, Jim .. 0.-. ,_ .,.,,_ ..... , --.- • 1ft Om*. John$.. te., , OeclilJI' • .. ClrQIII.W H W~ Presidtnt'sPage...... _ ...... 132 BuildingFund IIO ALABAMALA WYER S SERVlN G ALABAMA LAWYERS ABICLE and program parlicipana providecxpen and timeJyeduca tion In a varietyor signiOcant ar~'3S. Th e programs benefil not only the pmctitinncr but nlso businC$SC$and industries througbout Al ob(1ma. Carl W. Albright,Jr. Exec11ti11eVice President & T11scaloosaPr esident, AmSouthBank April-June 1994 Courses Fundamentalsof Advococy, Birmingham Southeascem CorporateLaw lnsciwte, Point Clear Womenin the ~ I Profe551on, Birmingham UrmtcdLiab1l11y Oimponics, Birmmgham Repre!mungOry and County C.0-'fflllllffllS, Orange&xh ~ Wrinng.Birmingham HealthLaw, Orange Beach EnvironmentalLaw , GulfShores Tax,Orange Beach Alal,amoBu ln,dtu1 Call l-800-627-6514o r 205-348-6230 for more information. THE ALABAMALAWYER May 1994/ 131 PRESIDENT'SPAGE IS ITTIME NOW FOR CHANGE? hould judges in Alabamabe elected or should they art of being a judge In the great tradition, the fore.mostis that be apl)Ointedby the Governorfrom a list submit 'he shall abstain from substituting his personal choices.' The ted by a judicial nominatingcommission? If judges politicalselection of judges makesll as difricullas is conceiv EJare elected. should they be elected in non-partisan ably possibleto secure and retain goodjudges. How are. their races?Should there be a limit on the amount of contributions politicalcampaig11s to be financed? Whatare to be the limitsof a judicial candidatecan receivefrom all sources?Based on the their participationin politicalactivity· beforeand after they go number of comments, telephone calls and letters I have on the bench? What will be the campaign issues - pledgesto recei,'td on thesequestions, these aresome decidecases for or against certain econom of the most troublesome issues facing ic or social groups? A promise to obtain laW)-trsand the citi7,ensin Alabamaat pre more - or fev.-er- convictions in criminal sent. These issues have been raised and cases? Political selection of judges brought to the forefront by this being an inevitablyundermines their essentialinde election year and the uncertainties regard pendence." ing the future of certain judicial positions The AlabamaState Bar's Task Force on created by the cases of While,et al. v. State Judicial Selection was establishedin 1988 of Alllboma(challenging the at-large elec and initiallychaired by former president L. tion of appellate court judges)and S.C.L.C., Drew Redden. Since 1990, this task force et al. v. JamesH . Evans,el al. (challenging has continued to work diligentlyunder the the al-large election of circuit and district very capable and tireless leadership of judges). Mobile's Bob Denniston. This task force Questions involvingan electedjudiciary has rtported to the board of bar commis are ones which the state bar has considered sioners on several occasions with respect for more than 25 year.;. The non-elected to various aspects of judicial selection. In selectionof judges is commonly referred lo S,,ucl Seale 1991, the task force recommendedto the as the "MissouriPlan." In simplifiedterms. board or barcommissioners the concept of the MissouriPlan providesfor the appoint- non-partisan election and the board ment of judges by the Governorfrom a list approved this concept. Unfortunately,the submitted by a judicial nominatingcommission. Once a judge concept of non-partisan election orcircuit, district and appel is appointed, he/she stands for merit retention based on their latejudges has not receivedsufficient support from the judlcia record. If the electorate does not vote to retain a judge, then ry or the legislaturelo accomplishthe Introductionor passage another person ls appointedby the Governorund er established or the necessary legislation. Additionally,the task force has procedures. Minority participation in judicial selection is reportedon the desirabilityof some form of a MissouriPlan as insured by establishing a judicial nominatingcommission with the best method for selection or judges. But, the task force has meaningful minorityparticipation. recognizedthat regardl ess of its desirabilityin the eyesof many AlthoughI personally,and I emphasizepersonally. have been lawyersand laypersons, this methodor judicialselection would an ad~'()Cateof the Missouri Plan for four or rive yws. it has rtquire a higher degree of political SuPPDrt than is presently been the ideal for more than 20 years of former state bar Presi evidmL dent Rod Nachman.In an addressto the AlabamaState Bar on In its March18. 1994report to the boardof bar commission July 18. 1974,he said, ·1 slrongly ach-ocatethe merit selection ers, the Task Poree on Judicial S(lection focused on the one and retention of judges. The best legal S}'Stemwhich man can area that was determinedlo be of greatest concern to members devise is no better than the judges who sit on the bench. of the bar and the public, lhal being the large amounts of Judges must exercise wisdomand the utmost restraint to make money being contributed by special interest groups and indi sure that their decisionsare completelyimpartial and conform viduals to candidatesfor judicial officeand the acceptanceof as closely as possible to the letter and spirit or the Constitu such large sums by the candidates.In its report, the task force tions,· or the statutes, of case law,and of administrativeregula recommendedvoluntary guidelines for candidates for judicial tions which they are called upon to interpret and enforce. A offices.l n brief summary, these voluntaryguide lines, if adopt· great judge has stated that of all the factors that enter Into the ed, wouldestablish the following: 132 / May1994 TMEALABAMA LAWYER 1. Prohibit a judicial candidate or member of the candi time and instructed me to appoint a committee of the bar com date's immediate family from soliciting or accepting mission to work on details with the Task Force on Judicial campaign contributions. Solicitations and campaign Selection to finalize the recommendations.I appointed to the contributions would be handled through a political bar commission committee CommissionersSam Franklin of campaigncommittee. Birmingham,W ade Baxleyof Dothan and John Percy Oliver of Dadeville. 2. Contributions could not be solicited nor accepted After the board meeting, I receiveda very thoughtful letter more than 12 months before the day of the primary from Bob Denniston. I have set out the full text of his letter at election or more than three months after the date of pages 134 through 136 herein. The issues of howjudges are to the general election. be elected/selectedand what limits, if any, should be placed on politicalcontributions to judicial candidatesare ones which the 3. Contributions from recent litigants, their counsel or persons involvedin litigationbefore a candidatewou ld bar must address and formulatea positionwhich is in the best interest of the judicial systemand citizens of the State of Alaba be limited to one-half of the maximum in Item 4 below. ma. I know from individua.lcorrespondence and calls to me that this is a matter of significantand continuing concern to 4. Monetarylimits wouldbe establishedas follows: many lawyersin our state. I, and your bar commissioners,want to know the views of the lawyersand judges of our state on a. Cash contributions: these matters. Accordingly, I am respectfully requesting that Supreme Court of Cir/Di$L each member of the state bar take the time to write me with CashContributions Court Appeals Courts your views and share your comments with your own commis (I) From any individual $750 $500 S500 sioner(s). Inot inc.ludedin (#2)) I specificallyask yau to addressthe followingquestions : (2) From any lawfirm $4,000 $2.500 $2,500 I. If judges are elected, do you favorand would you sup or its members port legislationcalling for non-partisan electionsin all judicial races? (3) From any PACor $5,000 $3,000 $3.000 other organization 2. Do you favor a ''merit selection" method for selection of judges by means of a nominating committee struc b. In- kind contributions limited to equivalentof cash ture combinedwith a gubernatorial appointment fol contributions. lowedby a retention election system (MissouriPlan)? A nominating commissionunder such a plan would be c. Indirect contributions would be in violation of structured to ensure meaningfulm inority judicial par guidelines. ticipation. d. Candidatesshould be aware of contributions from 3. Do you think that there should be monetary limits on any one source being so large in proportion to the politicalcontributions to judicial candidates? total of all contributions as to givean impressionof specialadvantage or favor. 4. If so, what should the maximumcash contribution be e. No contributionsal lowedin uncontested elections. from any individual lo candidates for the supreme court, for the court of appeals, and for circuiVdistrict f. No contributionsaccepted in excessof limit. courts? g. No contributions used for private benefit of candi 5. If so, what should the maximumcash contribution be date. from any law firm or its members to candidates for the supreme court, for the court of appeals, and for 5. Reportall contributionsto the bar CampaignMonitor circuiVdistrictcourts? ing Committee. 6. If what should the maximumcash contribution be 6. Avoidpersonal and demeaning attack on opponents so. from any PACor other organizationto candidatesfor not directlyreflecting on judicial qualitiesof opponent the supreme court, for the court of appeals, and for in advertisementor literature and public statements. circuiVdistrictcourts? 1. Establish AlabamaState Bar Judicial CampaignMoni toring Committee. 7. Should contributions from recent litigants, their counsel or persons involved in litigation current ly 8. Compilea list of contributors giving in excessof $100 beforecandidates be treated differently than contribu lo successful candidates. tions from others? This report was discussedat some length by the board of bar I personallythank yau for taking the time to read this article commissionersin its March 18, 1994 meeting. Although there and the time to respond to same. These are critical issues and was considerablesupport for various aspects of the report, the your input will be helpful in giving the board of bar commis board voted not to adopt the report in its present form at that sionerssome direction on these matters. • THEALABAMA LAWYER May1994 / 133 1. E ·1 I I. 11 I O I If I·: P H I. -. I I> E :\. I March 22, 1994 revivedby Altoand sailedthrough at a meetingvirtually without dissent and without change, and were then adopted by the Hon.James R. (Spud) Seale,President SupremeCourl Alabama State Bar A fewyears ago, as you recall, after a ''spirited debate" the Board P.O.Box 671 ad0pteda resolution approvingnon-partisan election or judges over Montgomery,Alabama 36101 the oppositionof some staunchDemocratic Party members. I feel that \\'as a oourageou.sand properaction. I am awarethat someof the problemat the March18th meeting Dear Spud: was not DeCl!SSarilyto the substanceof the matur, but the short nessof time for study,and sensitivityto the stateoi relations11,ith the members of the appellatecourts. One solution to the latter I appreciatedvery much the oppartunityyou providedto me problemwould be to placethe effectivedate at January1 , 1995or November5, and againon March 18,to appearbefore the Commis somesuch date in the future.Mowewr, there are membersor those sionersi n behalfof the Task Poreeon JudicialSelection. courts who would opposeit at any time so long as they want to The Boardhas many matterspresented for study, debateand deci hold office.I thereforeseriously doub t that they will eversupport sionwhich are of great imPortanceto the Barand to the public.As a the proposedchanges. Lm-1w,I fullyrecognize that the law>=serving as c.ommissioi_lers Now,I shalldepart frommy roleas spokesmanfor the~ Force are the samekind of peoplemost o( us are · independent pradiGal, and \IOlunteersome personal thoughts on the topic oi menl selec busy, well-informed.honorable and opiniOOilted· and of c!Nerse tion and relatedissues, without having had the benefitoi RodNach politicaland philosophkalbackgrounds. man'spresentation at )'OUrmeeting. I am convincedthat the adop, I know)'OU will recognizethat, as I appearas an instrumentof lion of a resolutionand introductionof legislationsupporting merit the &r to reportand respondto questions,I don't think it proper selectionwithout much, much morewould be hopelessand mean· for me to debate issues during the course of the commission's ingless. I am certainly no expert.I am also naivepolitically. T~ a deliberations. I also fullyapprec iated the role you are obligedto degreeI maybe an impracticalid eal.islN evertheless,J hn\lCstud ied serveas chairman of such a meeting.In viewof that I wasp11rticu and thought aboutit a greatdeal wh ileserving on the TuskForce. larly gratifiedto hear your personalendorsement or the repart There are extremely powerfulforces opposingthe concept of fromthe podium. merit selection.The DemocraticParty controls the Legislature. Thoughdisappointed that moremembers did ~ ral~ to !l1t Both are against it They havean easyargument which appeals to supporto( the motionto approvt the report,l am s,ncue m S THEALABA MA LAWYER May1994 / 135 I I . I 1· I·'. U I <> I 11 I : 1• If I·: ~ I I > I·: '.\: I court to hold matters In abeyanceand provide adequatetime for controlled Legislaturelo acceptwhatever changes are propo5ed by peoplebeyond the immediate circleof litigantslo be heard.l f time lhe confereesby makingit a campaignissue in a future legislative canbe g.,ined by thal means,then with the a:ppeJl.ltec.ourt case and cmnp.1il!)l. the trial court caseboth in mind I suggest that the Boardshould I h.!\-esome hopt that such a citizens'movement could ha\-e an talc£the leadershipin c!Mlopinga broadly~ citizens' commit· impart on the current litigation im'Olvingthe trial courtsalso. I tee lo study the entireproblem and organize for widespreadpublic think the really righl iOlulionto the presentcrisis is for the people discussionof possible solutions.Even thoug)) there is considerable of Alabamato be madesufficiently aware of the crisis, the altema· sentimenti n the Barand media for a merit selection solution the livesfacing us, and the Jl()Mibleso lutions, to adopt the constitu citizensgroup shou ld be asked to weighall alternntim. In the race tional changesnecessary for the best solution.I am hopefulthat of the federalcourt litigationsan open forumapproach will bean this wouldconvince Justice and the courts that the motivationis absolutemust. W~are in a \'ery differentatmosphere than when proper. the prior citizens conferenceswere stagw. They were directed Welawyers, and the Boord.cannot accomplishthe task,but we ICM'llrda predetennined program. c.v1 start the programand pYOYideleadership and impetus. Earlyin Regardlessof the specificoutcome of the effort,it wouldbe sue· the lifeof the Task F'orcethe conceptoi promotinga citizens'COil · cessful in informingthe public,promoti ng thoug))tfuldiscussion ferencewas discussedand approved , but the ToskForce decided lhe and pointingthe wayto the bestsolution. lime waspremature, prirn,1r ily becausethe litigationinvolvi ng the I knowit wouldrequire a long.laborious and expensiveeffort, and trial court wasthen in a veryear ly stage.The appe llatecourt litig.l· that it coulde\'ffl then fail.It wouldbe a statewidedlizens moue lion and prQPOSedsetllement place a new crisis urgencyon the menl, culminatingin (int or more citiwls' conkrenceswith suffi. problem.If you feelthat the TaskForce should further and present cient breadthand clout to carryweight with the 1.egislatnreand the ly explorethe conapt oi a citizens'lllO\lffllellt please so advise.I courts.I ~ believethat it couldhelp conwice the blacklead am personallyprepared to commitsome fundsfor the type of initial ershipthat to providethem with adequate opportunityfor judicial studyand planningwhich would be involved. office they will be better off with a well-balanced merit selection/retentionvote system. It wouldrequ ire that they convince llespectfully yaurs, theirconstituents of the same.I t wouldrequire enouJ!)l local l eaders of all racesand genderthat theycould pre-.llilupon the Democratic RobertP. Denniston Please note: Thepublication date of the bardirectories has beenchanged from December1993 to June 1994. 136 / May 1994 THEALABAMA LAWYER SUPPLEMENTALREPORT To the Board of Commissioners of the Ala bama State Bar in Behalf of the Task Force on Judidal Selection March 14, 1994 t its November 5, 1993 subject of a meeting in Birminghamon and report by consensus. I am comfort· , A_-.meeting the Board con March 11th attended by nine members. able in representing that the contents sidered a Special Report Written comments from four other of the report which followsi s a consen dated in July, 1992, on members were also received. With the sus report, but not unanimous. ' - I CampaignContr ibutions specific guideline recommendations, This supplemental report is based on and Expenditures, CampaignConduct there was includeda detailed structure the background studies and more gen and VoterIgnorance. The Boarddirect and charge for a proposed monitoring eral recommendationscontained in the ed the Task Force to submit a set of committee to oversee the matter of 23 page Special Report dated July, voluntary guidelines to be provided to conformity with the guidelines, and a 1992. The reasons for the recommen all candidates for judicial office. The report of investigation into the feasibil dations are set forth in that document. Board postponed discussion of recom ity of compiling and circulating data Nevertheless, the guidelines suggested mendations for esta blish ment of a concerning $100 and more contribu below are preceded by a ''Preface " monitoring committee until the specif tions to successfulcandidates. intended to remind the readers that the ic voluntary guidelines have been sub The Chairman has not found it prac guidelines are not regarded as a mitted and further considered. The tical or deemed it fair for the Task panacea - a solution to the problem. Board also directed the Task Force to Force to act by formal votes on most Theyare an attempt within the scope of have a study committee explore further matters presented for consideration. authority available to the Board, to the feasibility of compiling the names Information and recommendations are curb some election practice abuses and of au contributions of $100or more to widely circulated in advance of meet demonstrate to the Bench, the Bar and each successful candidate for judicial ings. Those who are unable to attend the publicthat the State Bar recognizes office, identifyingthe contributor, and meetings are invited to submit written a serious problem and is taking such of making such information conve or verbal comments in advance. I do steps as are within its powers to com niently available to the media, attor not recall a majorityof the 28 member bat the problem. neys and litigants, and to the respective body being actually in attendancesince The Board is informed that a sub· judges involved. the first meeting or two. The member stantial majority of the members of the Since the aforesaid meeting of the ship is composedof lawyers of diverse Task Force share the view that the mat Board, a detailed set of voluntary views on many topics within the ter of excessive campaign contributions guidelineswas circulated among all the purview of the Task l'orce. The Chair from litigants, potential litigants and members of the Task Force for discus man has determin ed it to be more their attorneys can only be effectively sion and comment, and was also the appropriate for the Task For.ceto act eliminated by the adoption of a form of THEALABAMA LAWYER May 1994 / 137 "merit selection" combined with a fol Several years ago, on the basis of a The Board has determined that it has lowfng "retention election"format; and study and report by the task force, this the authority and lhc duty lo promul are likewise convinced lhal a proper Boardapproved the concept of non par gate voluntary guidelines designed to and balanced compositionof the nomi tisan election of circuit, distr ict and assist candidates for judicial officeand nating commissionsand political pres appellant court judges, but did not their supporters in conducting election sures on the administrations in office receivesufficient support from lhe judi campaigns in a manner which will would assure adequate appointment or ciary or the legislature lo accomplish restore more confidencein the integrity qualified minorities to judicial office. lhe introduction or passageof the nec and impartialityof the judiciary. The same members are also convinced essarylegislation . In adopting the policiesset out below lhal such a processwould assure selec The same task forcehas also reported the Boardof Commissionersnotes that tion of well qualifiedcandidate b ecause lhal proposals· for a ·merit selection" election campaigns for Judicial offices of the screeningwhich is an element of met hod for selection or Judges by involve the political process,that candi the selection process. However, the means of a nominating committee dates have the right and duty to present Task Poree recognizes lhal such structure combinedwith gubernatorial themselves to the public and solicit changes would require legislam 3. ContributionsFrom litigo11ts.Can CircuiV didates,and their politicalcampaign Supreme Courts of District committees. should neither solicit Cash Contributions Court Appeal Courts nor accept campaign contribution from ncenl litigants, or their coun 1. From any individual sel, or personsinvolved in litigations (not included in #2) $750 $500 $500 currently before them, in excessor one-half (W) or the maximums In 2. From any law firm Item ~.A. or its members $4,000 $2,500 $2,500 4. Monetarylimits. The followinglim 3. From any PAC or its shouldbe observedin the solicita other organization $5,000 $3,000 $3,000 tion and in the acceptance of cam paign contributions by candidates and their political campaign com milt«$ with respect to each primary E. Uncontested Elections. In the 6. CandidateCondud 011dAdvertising. election, each primary runoff elec caseor uncontested elections. or Consistent with maintenanceof the tion, and each general election. In when il becomes clear that the dignity ascribed to judicial ofnce order lo avoid the appearance or candidatewill be without opposi which Is necessary to continued Impressiont hat the contributor may tion, no campaign contributions public respect for the judiciary, can seek or expect specialadvantages or should beaccepted. didates for judicial office should favorsfrom the candidate;exclusive scrupulously avoid personal ond of contributions by the candidate P. Statutorv Limitations. No cam demeaning attacks on their oppo and members or the candidate 's paign contributions should be nents not directly renectlng on the immediatefamily: accepted in excessof or in viola judicial qualities of opponents in all tion or statutory prohibitions or public utterances and advertise A. See GraphA. limits. ments and campaign literature and B. ContributionsJn Kind. The rea scrupulouslyavoid attacks of a dis sonable value or in kind contribu C. Personal Use of Contributed criminatory nature on the basis of tions sha II be deemed to be the Punds.As mandated by Canon 7 race, ethnic background, religion or equivalent or cash contributions B.l.(d) a candidate including an gender. Criticism of the opponents' in applyingthe limits set forth in incumbent Judge should not use character, record, judicial philoso A, above. or permit the use or campaign phy and other characteristics bear contributionsfor the private ben ing upon the judicial office should C. Indirect Contributio11S. Solicita· efit of himself. A!. the contribu be couched in terms which do not tion or acceptance of campaign tions when made are intendedfor renect adversely upon the judicial contributions designedor having use in election campaigns, this office itself. To conduct himself or the effectof violatingthese guide prohibition should continue to herself otherwise renects adversely lines will be deemedlo constitute apply after retirement from on lhe candidate's own qualifica violationof these guidelines. office. tions for judicial office. THE ALABAMALAWYER May 1994I 139 AlabamaState Bar Judicial same approximatenumber of judicial sioners may promulgate from time Campaign Monitoring posit ions, except that the area to time. including MontgomeryCounty shall Committee include the appellate judge positions 3. The Monitoring Committee shall consider only matters which have The Board of Commissionershereby in its number. Appointmentsshall be for four-year terms. Initially, one arisen since the formation of the authorizes the establishment or the Committee. AlabamaState Bar Judicial Campaign lawyer and one judge in each set of five( herein sometimesr eferredto as Monitoring Committee (the "Monitor 4. The MonitoringCommittee shall con ing Committee") as follows,and directs "panels") shall be appointed for a two-year term, and all others for sider only matters (i) referredto it by the President to implement the provi a candidate, in writing, or (ii) deter sions hereofas promptlyas possible: four-yearterms; thereafter, all shall be appointed for four-year terms. As mined by a majority of the entire 1. The MonitoringCommittee shall be determined by its bylaws the Com committee or of any of its panels to composedof a total or seventeen(17) mittee may sit and act as a whole or require consideration whether or not persons, including a chairperson, a delegate functions and authority to it has been referredb y a candidate. vice-chair, and fifteen (15) members, the three panels. However, the basic all of whomshall be appointedby the 5. The Monitoring Committee shall monitoring functions and transmit consider only those matters (i) aris President of the State Bar with the tal and consideration of and deci. approval of the Board of Commis ing from actions of the candidates sions on complaints shall normally themselves,or (ii)of personsworking sioners. The chair and vice-chair be the functionof the individualpan shall be appointedat large.The other in a candidate's campaign, whether els within their respectivejurisdic or not authoriud by the candidate. memberssha ll be appointedin three tions. sets of five each, consisting of two lawyers, two sitting or retired judges, 2. The Monitoring Committee shall 6. Prior to a hearing, matters concern and one lay person. Each set of five adopt its own by-laws and rules of ing a complaint and investigationof shall be drawn from the area of a procedure,consistent with this con the complaintsha ll be treated as con fidential, except that the candidate designated number of judicial cir stitutional document, the applicable who is the subject of the complaint cuits with the state divided into Canons of Judicial Ethics, and such three areas each comprising the mandates as the Board of Commis- shall bepromptly in formedthe reof. 7. The generalcharge of the Monitoring Committeeshall be as follows: A U NIQUE CPA FIRM (a)To monitor compliance by candi dates with the Canons of Judicial FOR LITIG ATORS Ethics and the Voluntary Guide lines promulgatedby the Boardof Commissioners. • Exclusivelyd evoted to litigation and insurance accounting matters since 1969. (b)To broadly disseminate informa tion concerning the Canons and • Staff is 100 % trained forensic accountants, not Voluntary Guidelines to candi reassigned auditors. dates, members of the Bar, the mediaand the general public. • Experience makes for fast, flexible and cost effective service for litigators. (c)To utilize such means as it deems appropr iate, consistent with a • Resources of our international network of 30 offices proper regard for the dignity of at your disposal. judicial office, either by means of privatecommunications or public Por more informat ion , disclosure, or both, to seek in a please call Mark Gallagher or Les Hankes fair and impartial, non-political at 404-953-0040 or fax 404-953-0270 manner, compliancewith the Vol untary Guidelines; and to rep0rt to the appropriate authorities deemed violationsof the Canons. During campaigns it should seek to act with sufficientpro mptness CAMPOS & STRAT I S to be effectivein promoting com pliancewith the guidelines. 140 I May1994 THEALABAMA LAWVER (d)Todevelop and make availableto Feasibllllyof Compiling subject 10 nomination and elec local bar associations, for local a List of $100 Contributors tion as candidates of a political elections and the State Bar for party, it is realizedthat a Judgeor statewideelections, a recommend to SuccessfulCandidates a candidatefor election to a Judi ed, standardized format for the cial officecannot divorce himself The Task Force has determined that completelyfrom politicalorgani content o( andmeans for circulat at several stages during the election ing and publicizingthe results or zations and campaign activities a cycle all judicial candidates or their bar poll for evaluating candidates which. indirecllyor directly, may political committeesmust reportcontri for judicial office.The guidelines be involved in his election or re butions of more than to the Secre $JOO election. Nevertheless.shou ld proposed by the American Bar tary of State or with the probatejudge of a judge or a candidatefor a judicial AssociationSpecial Committee on the localcounty under Sections17-22A - Evaluation of Judicial Perfor position be directly or indirectly 8 and 9 or the Fair CampaignPractices mancecontaining eight (8) specif involvedin the internal workings Act. II should be a simple and inexpen ic criteria applicable to silting or campaignactivities of a politi sive matter for them to send copies lo cal organization, it is imperative Judges,and similarones for candi the appropriatepane l of the Campaign dates, are recommended to the that he conduct himselfin man MonitoringCommittee. This will enable a MonitoringCommittee for its con ner at all times to prevent any the Committee to compare contribu politicalconsiderations. entangle sideration. tions with the voluntary guidelines. ments or inOuences from ever Also, afier the election it can use the (e)Within four months after each becoming involved in or from informationto prepareand circulatethe general election,assemb le a list or ever appearing to be involved in lists applicable to successful candidates campaign contributions with the any judicial decision or in the to interested persons. The Committee identity or the contributors in Judicialprocess. may needthe assistanceof the State Bar excessor SI00 to each successful sta/f with respect lo some reproduction candidate, and make such lists Canon 7 B of the Canons of Judicial and mailingfunctions. readilyavailable upon requestat a Ethicsreads as follows: nominal charge. Successive con Respectfully submitted, B. Campaign Conduct. tributions which together aggre (I ) A candidate,lncl uding an incum gate more than $100 should be ROBERTP. DENNISTON, CHAIRMAN included. bent judge, for a judicial office TASKl'ORCE ON that is filledeither by public elec JUDICIALSELECTION (I) Developand makeavailable to all tion between competing candi candidatesa recommendedformat dates or on the basis of a merit for an information brochure APPENDIX I systeme lection: To AiABAMASTATE BAR which candidates may use to (a)Should maintain the dignity informthe voting publicconcern BOARD OF BAR CoMMJSSIONERS appropriateto judicialoffice. ing the candidate'squalifications, VOLUNTARYGUIDELIN ES listing the categoriesor informa (b)Shouldprohibit public officials Canon 7 A (1) of the Canonsof Judi tion which would be or interest to or employees subject to his cial Ethicsreads as follows: voters and which will facilitate a direction or control from comparison of the candidate's A. PoliticalConduct in Ceneral. doing for him what he is pro qualifications with those or the hibited from doing under this opponents.Encourage the use of (l)A judge or a candidate for elec Canon. such a formatby the candidatesin tion to a judicial office should the interest of combatting the endeavor at all times to refra: (c)Should not make pledges or problem of voter ignorance con- from political activities inappro promises of conduct in office :rning candidates for Judicial priate lo the judicialoffice that he other than the faithful and office. holds or seeks. It is desirablethat impartial performancesof the a judge or a candidatefor election duties of the office;should not (g)Respondto inquiries from candi to judicial officeendeavor not to announcein advancehis conclu dates concerning the interpreta be involvedin the internal work- sions of law on pending litiga tion of the Voluntary Guidelines 1ngs or politic.al organizations, tion; and should not misrepre in specificfactual situations. engage in campaignactivities in sent his identity,qualifications , connectionwith a politicalcandi presentposition or other fact. (h Report to the Board of Commis date other than candidates for sioners annually concerning the judicial offices and not be (d)Should not use or permit the state of compliancewith the Vol involved in politicalfund solicita use of campaigncontributions untary Guidelines, this charge, tions other than for himself. for the private benefit of him andany recommended changes. However, so long as judges are self. • THEALABAMA LAWYER May 1994/ 141 EXECUTIVEDIRE CTOR'SREPORT It's Serious Business-TheBar Exam everal recent incidents relating to our bar admis of requesting a continuation or a later setting workedaround sions process have generated these thoughts about /heir schedule, while others have initially appeared almost the process-particularly the Character & Fitness callous in the first few minutes of a panel hearing. The chair Ellproced ures and the examination itself-and the of the Character & Fitness panel quicklydemonstrates to such fact that those of us directly involved take our responsibilities applicants the seriousnessof the businessat hand. quite seriously. These processes are not matters in which My favorite last-minute incidents are the notes slipped jokes, unsigned communications, anonymousphone calls and under the door advising me that certain applicants or study inappropriater emarksare viewedwith callous indifference. groups have a copy of the exam. If not for the fact that I had Recently, we haveseen the Character & personallyaccounted for and still had the Fitness process used as a venue for airing particular exam under personalsecur ity, I or attempting to reopen domestic travails would havebeen concerned. involving a particular applicant. Usually Thoughtless and misunderstood com the adversecomments or belated discov ments during reviewcourses havecreated ery effortsoccur shortly beforethe sched problems. Applicant friendships and uled examination. Because of the confi employment relationshipswith examiners dential nature of the Character & Fitness should be carefully considered by appli investigation, we resist all efforts to cants and others before comments are examine the contents of an applicant's uttered which could be misconstrued. file. Lawyers and judges, too frequently, Likewise,the "last-minute" unsigned comment to our examiners about their letter advising the Character & Fitness special interest in an upcoming appli Committee it should look into some pur cant's success on an exam. Such com ported character defect or an applicant, ments, while hopefully intended to be while fully investigated to the extent of "just conversation,"can be misconstrued, information available, generates a certain or worse, overheard by others who may level of anxiety that is already above nor Reginald T . Hamner already view the process with some mal for an applicant. This is, too often, degree of susp icion. Examiners are the ultimate motivationof the informant. required to report all such contacts. ln order to minimize the stress on an Theirs is a thankless, but most important, applicant, we make everyeffort to investigate all alleged" last responsibility. They need to be able to fulfill their duties with minute" informationwithout contacting the applicant until it out the added burden of such unsolicitedcom ments. becomes absolutely necessary. No applicant, however,wou ld The anonymity of the applicant and integrityof the process ever be denied an opportunity to respond to any such infor are essential to meeting the public responsibility placed upon mation that is developed at the last minute where the facts the board of bar examiners.If a reason does exist to challenge could result in a deferral or a denial of their right to take the an applicant, fairness to one and all dictates the necessity to upcomingexamination. have such evidence at an early stage in the process where Unfortunately,some of the last communications are gener such evidence is known to exist. Personalized commentary ated by fellowapplicants . One particularly troublesome inci about examineesand directed to an examineris to be discour dent involved communications that were generated by stu aged. A definedreview process is in place to be used after the dents who had disagreed with the handling of an applicant's bar results are known. An examiner should not be contacted problems by the school administrationearly in the applicant's to explainhis or her scoring of an examinationexcept w ithin law student career. the alreadyapproved review process procedures. Some applicants summoned before a Character & Fitness Weview our responsibilities quite seriously, and we encour panel obviouslyhave been misinformed about the gravity of age your help by being sensitive to the need for absolute the need for their appearance. Several have thought nothing integrityin the admissionsprocess. • 142 / May1994 THE ALABAMALAWYER Majo r Medical. Provides personalized comprehensive cove rage to Lawyers, employees , and eligible fam ily members . The Southern Professiona l Trust is totally underwritten by Continental Casua lty Company , a CNA Insurance Company. Life Fami ly Term Life. Provides benefits for Lawyers, spouses , children and employees. Coverage through Northwestern National Life Insurance Company. Security Disability Income. Features "Your Own Specialty" definition of disability with renewa l guarantee and benefits available up to 75% of your income for most insureds. Coverage through Commercia l Life , a subsidiary of UNUM . Peace Business Overhead Expense Insurance. A financial aid to keep your office running if you become disab led. Coverage through Commerc ial Life , a subsidiary of UNUM. fromISi If you 're a Lawyer practicing in the State of Alabama , Insurance Special ists, Inc. offers the finest insurance coverage anywhere . We're here to help with all your insurance needs. 33 Lenox Pointe NE Atlan ta, GA 30324·3172 EST. 1959 404-814-0232 800-241-7753 INSURANCESPECIALISTS, INC. FAX: 404-814-0782 THE ALABAMALAWYER May1994 / 143 LEGISLATIVEWRAP-UP By ROBERTl. McCURLEY,JR. After three months the Legislatur e estate loansin §S.19-4(g). adjourned without passing the much Business H-443 (Act 94-588) Foreign Corpora· publishededucation reform bills. Legisla H-30 (Act 94-245) Revlaed Business tlons- This amends Section 10-2A-221to tors introducedover 1,600 bills with one Corporation Act-This Act is effective allow any foreign corporations to act as legislative day remaining. Al printing January I, 1995. Draftedby a committee fiduciariesin Alabamawithout qualifying deadline, the followingliills were passed. of the Alabama Law Institute, the act to do business in Alabama, providedthe closelyfollows the Model BusinessCorpo foreign corporation's home state grants Criminal Law ration Act. The format orthe act is greatly authority of Alabama corporations to H-7 (Act 94-581) Hate Cri~ per changed by breaking various provisions servein the same capacityin the foreign son found guilty o( a crime motivatedby into separate articles amnged by topic. state. the victim's race.color. religion,national For example, the present Article2 has 62 origin, ethnic background, or disability sections that encompass corporate pow- Plop arty shall receiveenha nced punishment. S-119 (Act 94- 117) Real Estate H-105 (Act 94-580) Open House Appraisers-This amends Chapter 27Aof Party-An adult havingcontro l of a resi Title 34 of th e Alabama Real Estate dence, in attendance where an open AppraisersAct concerning the qualifica houseparty is held, and who allowsper tions of appraisers and their continuing sonsunde r 21 years o( ageto drink alco educationprograms. holicbewrages or use a controlled sub S-299(Act 94_.87) Damage to Under slanceis guilty of a ClassB Misdemeanor. ground Facllitiet-No person shall exca H-688 (Act 94-349) Bui e Right, for vate a street, highwayor easement with CrimeVlcth m - This Actproposes a con out notifying the "One-call Notification stitutiona l amendment that would System".Failure to give notice of excava require that crime victims be informed tion or causing damageto a utility line and heard in all crucial stageso( criminal can result in a civilpenalty payable to the proceedings. state gene.ral fund. S-99 (Act 4-321) Int erference with H-477(Act 94-582)Closing Hazardous Hunten-Anyon e who attempts to pre· Highways-This amends Section 37-2-84 vent, obstruct or interfere with a person ers, corporate names, regist.ered office to allow the Alabama Department of legallyhunting is guilty of a Class C Mis and agen t requir ements, issuance of Transportationto close any city or county demeanor. shares and dividends, shareholders, offi street that crosses a railroad when the S-85 (Act 94-590) DUI Fourth cers and directors , and inspection o( Department determines the crossing is Offense-A person who is convictedof a booksand records.each of which now is dangerous and safety outweighs the fourth DUI in a five-}oear period is guilty the subjectof a separatearticle. For a fur inconvenienceof re-routingtraffic. of a Class C Felony and receivesa fine ther discussion of the Act see Alabama between$2,000 and $5,000. Lawyer,May 1993. Divorce S-280 (Act 94-652) Boating Safety S-.121 (Act94 -573) Church 'fni•t S-388 (Act 94-575) OHR Divorce Anyoneopera ting a boat while under the Thisamends Section 10-4-20 to deletethe Investigation Fees-Sec tion 30-3- 7 Is inOuenceof alcohol wiJIbe punished the maximum number of trustees a church repealed which authorized the Depart same as a DUl driver on the highway. mayeled. ment of Human Resourcesto chargea fee Also,all boat operatorsmust be at least 14 S-293 (Act 94-104) Automatic Teller betweenS20 and $35 (or imoestigali\seser years old and, by 1999, all boat drivers Machines- This amends Section S.SA-30 vicesin divorcecases. must have a license. to permit a bankt o charge a transaction H-387 (Act 94-589) Termination of H-433 (Act 94-481) Youthful Offend fee to its customerswho usean automat Income Withholding Orders - This er-Any personwho hasatta ined 16 years ed teller machine. amends Section 30-3-62 to terminate a o( age and commits a capital offense, a S-419 (Act 94-115) Con1umer Credit withholding order without a hearing Cws AFelony, commits any felonywith a Tranucti ons-Th is amends Section 5- upon the swornaffidavit of the obligator deadlyweapon , ca\15e$death or physical 19-6to not require disclosuresunder the that the childrenha,oe all reached majori injury, commits a felony against certain Mini-Codeothe r than thoserequired by ty and there is no arrearageo( child sup court or lawenforcement o fficialsor Inf . the Superintendentof Banks,the borrow port or spousalsupport. The obligeemay fiesin dlll85will be tried as an adult. Any er's right to cancel a real estate loan by stJII requesta hearing within20 daysafter subsequent offenses will cause the youth the third business day. creditor-required notice. to be tried as an adult. insurance, and certain other fees on real M-516 (Act 94-213) Past Due Child 144 / May1994 THEALABAMA LAWYER BAR BRIEFS is a 1970 graduate of the University of admittee to the Montevalloand a 1974 graduate of the Alabama State BirminghamSchool of Law. He served Bar, recently re as district judge for the First Judicial ceived an hon Circuit from 1976·79, worked as a polit orary Doctor of ical consultant for several national Lawsdegree from Democratic candidates, and was Ken the Universityof tucky's associatesuperintendent of edu AlaskaAnchorage. cation from 1985-87. He also served in Dickerson, of An- the U.S. Department of the Interior in Dickerson chorage, is Alas- the Carter Administrationand has been ka's first female recognizedin Alabamafor his efforts to and black attorney,and was admitted to BIiiy Max Peul , left, I• awom In •• the protect wildlife in the stale. practicethere in 1959.She has beenact ive new SBA Reg lonal Admlnl atre to, In WileyM essick, also a member of the in the American and Alaska civil rights the SoutheHL WIiey M ... lclc, right, Alabama State Bar, served as acting movementand wasthe firstblack pres ident ""'" H eetlng Nglonal edmlnlalre regional administrator prior to Paul's of the National Associationof Women tor. appointment. Messick,a native of Pike Lawyers. County, Alabama,graduated from the Dickerson, a Montgomerynative, grad • The U.S. SmaJJBusiness Administra Universityof AlabamaSchoo l of Law in uated, cum /aude, from Fisk University tion announcesthe recent appointment 1953. He practiced law in Abbeville, where she was inducted into Phi Beta of BIiiy Max Paul as the chief adminis Alabamaand with the legal department Kappa.She was admitted to the Alabama trator for the agency'seight-state south for SONAT, servedas executivesecretary State Bar in 1948, and practiced here eastern region. The region, based in and administrativeassistant t o U.S.Sen until 1951, when she moved to Indi Atlanta,has more than 430 permanent ator John Sparkman, and, since 1967, anapolis, Indiana. She was the second employeesin 13 field officesand an SBA hashe ld severalpositions with the SBA. black female to be admitted in Indiana loan portfolio of over$3.6 bill ion. and practicedthere for eight years,prior A native of GroveHill, Alabama, Paul • Mahala Ashley Dickerson, a 1948 to movingto Alaska. • LECISL\Tl\'E \VH.\l'-ll' Trust Corporation- This establishesa yearsafter the causeof actionarises. Co11ti1111ed nonprofitcharitab le trust to permit con S-313 (Act 94-244) Supervision of tributionsby familymembers and others State Empl~us-A state employeewho Support-This authorizes a parent, for the benefitof a personwith a mental reports a violation of law, regulationo r guardian or the Departmentof Human or physicalimpairment This allows the rule may not be fired, demoted, trans Resourcesto bringa civilaction against a establishment of a charitable trust in ferred or discriminatedaga inst for mak non-supporting parent to establish an which the trustees serve without com ing the report This Act creates a cause order of retroactivesupport for a minor pensation. Thiswill provide a trust where actionagainst the supervisorbut not the child. The non-supportingparent must the.re are not enough funds to warrant a Stateof Alabama. be under a court order to support the corporatefiduciary. S-332(Act 94-576 ) Personal lasurance child and the action must be brought Contracts-This amendsSect ion 27-14-3 beforethe child reachesmajority. Tort Liability to givea corporation an insurablei nter H-618 (Act 94-579) Alabama Family H-341(Act 94-138) Architects, Engi est in the life or health of its directors, neers and Contracton--Asuit against an officersor employees. Further,it permits architect, engineer or contractor for a corporation by contract with a share faulty design ... or defect that results holder to insure a shareholder for the Roti.rt L. MeCurt ey, Jr . in damageto property, injuryor death to purposeof re-acquiringthe shareholder's Robet1L McCurley• .k. a person must be commenced wrth stock.It also allowsa charityto owna life Is !he d!1ectorot the in two years. Further, a rule of repose insurance policyo n the life of any indi AJabamala w tnst1tu10 at lhe Url6vers!tyo f bars any cause of action 13 years after vidual who consentst o the charitybei ng Alabama.He ,ecelved substantial completion of any construc the owner. h'8 undergraduate and tion of an improvementon real property. For further information, contact Bob lawd eg1ees.fr om the University. And,any expresswarranty i s enforceable McCurley, Alabama Law Institute, P.O. for the periodof time specifiedin writing Box1425, Tusca loosa, Alabama35486, or but must be com-menced within two call (205)348-74ll. • THEALABAMA LAWYER May1994 / 145 BUILDINGALABAMA'S COURTHOUSES GREENE COUNTY COURTHOUSE By SAMUEi,A. RUMOR/:.~JR. The followingcontinues a history of Alabama'scounty courthouses /heir originsand some of the people who contributed to their growth. The Alabama Law11erplons lo run one county'sstory in each issue of the magazine.If you have any pho tographsof early or present court houses, please forward them lo: SamuelA. Rumore,Jr., Miglionico & Rumore, 1230 BrownMarx Tower, Birmingham,Alabama 35203. Greene County he territory o( present-day GreeneCounty Wil$ part of Alabamaachie,,'td statehood , the Legis the Choctaw Indian lands lature created Greene County out of ceded to lhe United States parts of Marengoand Tuscaloosacoun IIgovernment by a treaty dated October ties. The original Greene County 24, 1816. In this treaty the Choctaws boundariesincluded most of the land in gave up all of their tribal lands east of today'sGreene and Hale counties. The the Tombigbee River, making it legal original county was divided in two by for settlerslo enter the region. the BlackWarrior River. In late 1816. Caleb Russell became GreeneCounty was named for Revo one o( the first settlers in the area. lu lionary War General Nathaniel Other pioneers arrived in 1817 and Greene.The Cityof Greensboroin Hale establisheda communitynearby, ca lled County, original ly a parl or Greene Russell Settlement or Russellvillein County,was also named for him. Many honoror the Russellfamily. Soon there historiansconsider Greene. after Wash after, another community called Troy ington, to be America's greatest mili or New Troy ,vas established. ft was tary leaderof the Revolution. Brigadier General in the Continental named to commemorateancient Troy Greenewas born in Warwic:k,Rhode Army. He look part in the siege of in Asia Minor. Subsequently, these Island in 1742. His family members Boston and, in 1776. commanded the communitiesmerged and becamepres were Quakers, but because the Quaker army o( occupationthere with the rank ent-dayGreensboro. Church is opposedto warfare,Greene's of major general. He fought at Prince Alabamawas made a U.S.territory ln interest in military affairs resulted in ton, Trenton. Germantown, Brandy 1817.On February7 , 1818,the Alabama his expulsionfrom that church. wine, and Monmouth. He also served TerritorialLegislature created Marengo Greene served in the Rhode Island with Washingtonat ValleyForge. and Tuscaloosa counties. Then, on colonial Legislature. When war broke In December1780, Greene took com December 13, 1819, the day before out with England, Greeneorganized a mand or the Continental Army in the militia company and soon became a South. He led the colonialforces nt the 146 / May1994 THEAlABAMA LAWYER also a shortage of good drinking water. The final blow came in 1838, when a yellow feverepidem ic took a large num· ber of lives. After losing the courthouse. Erie beganto dedine. Most residents moved to the new county seat town of Eutaw, or the older nnd larger Greensboro.i n 1855, the Greene County Directory states that only one homestead remained al Erie. together with the ruins of the courthouse, the jail and a fewd ilapidated tenements. Today noth ing remains orErie but a few broken piecesor b rick or stone where buildings once stood and a handful of graves in lhe cemetery. The first election to change the courthouse site took place on August 21, 1838 when the citizens of Greene County choseto movetheir courthouse by a vote of 985 to 893. Then, at a sec ond election on the second Mondayof October 1838, they chose the present location, which, at the time, was the farmlandor an earlysettler , A/SllWhite. White had acquired land in Greene Sketch of Rnt GNene County Counhou .. (18311), l!ut•w . v. O.i,I• Snedeco r, County as early as 1824. He continued map of a ... ,,. County, 1858. (Roi, A. 8w•i,n Collectlon .) to purchase acreage and by 1838 his holdinl!$exceeded 1,000 acres.His land Sawyerville and 13 miles west of was located approximately one mile Greensboroin present-dayHale County . southeast of an early settlement called The name Erie is another designation Mesopotamia,fo unded in 1818. for Eire or Ireland, which was most Mesopotamia mean s "high place likely the original home orsome of the between two rivers." The name referred county'searly residents. to the ancient name of the Tigris The earliest county records reveal Euphrates RiverValley . Since this area that the first Orphan's and County in Greene County was on a plateau Court convened in Greene County al located between the Tombigbee and Erie in July 1820. The first order of Warrior rivers, Mesop0tamiawas aptly business al this session was the pay named. It does not survive today, other ment of $25 lo Thomas Steward for a than as a thoroughfare, Mesopotamia house to be used as a courthouse. The Street, within the townof Eutaw. nexl action was to pay James Monette In October and November 1838, Asa battles of Guilford Courthouse and $110 for furnishings in the structure. White, "in considerationthat the voters Eutaw Springs. By war's end. he had Newspapers published in Eric during of Greene County.•• have selected a site pushed the British backint o Charleston the period make many references to as the permanent seat of justice for said and Savannah. what was probably a more substantial county on the lands of the said Asa In gratitude for services during the courthouse built some Lime prior to White," conveyed to the county a 20· war, Georgia gave Greene a plantation 1830 on a courthouse squ.ire. Unforlu· acre square in the middle of his hold· estate. He died al Savannah in 1786.A$ nately, no pictures survr.-eor any such i ngs. The land was to be used for a a finaltribult, lhe State of RhodeIsland courthouseal Erie. courthouse, other civic buildings, and placedhis statue in Statuary Hall at the In 1838, the citizens of CreeneCoun · the commercial district for the new Capitol in Washington in 1870. ty decidedto relocate their county seal town. In December 1838, Robert C. The firsl county seat of Greene Coun· for severalreasons. Erie was located on Quarles surveyedand laid out the pro ty, selectedby the AlabamaLegislature , lhe Warrior River and had good water posedtown . Two sets of parallelstreets , was the town of Erie on the east bank of transportltion. but lhe roads leading to one running ea.st and west, and one the Warrior River. The sile of Erie is and from the townwer e almost impass· running north and south, created a grid approximately four miles southwest of able during the rainy season.There was of nine blocks. The center block was THEALABAMA LAWYER M~y1994 / 147 designatedfor the courthouse square. Carolinain 1781was a natural. In 1867.a fter lhe war, the Legislature The streets were laid out accordingto The first courthouse in Eutaw was divided the county along the Warrior the points of a compasswithout regard built by John V. Crosslandof Greens River. The eastern side, which was the to an uisllng road from Mesopotamia boro. The contract price was $26,000 larger section with the greater popula to the Warrior River. and Crosslandreceived an initial down tion, becameH ale County.The town or The nine square blockswere divided payment of S4.333 for the project on Greensborowas made its county seal inlo 74 lots. An auction to sell the lots June 21, 1839. The building he con The smallersection on the western side took place on December 13, 1818. structed was 45 by 68 feet in dimen of the river remained Greene County. Prices for them ranged from $100 to sionswith an extensionon the west side The population, which numbered S500 and the runds raised from their conlalning stairs to a second story. It 30,859in 1860, was reduced to 18,399 salew ere used by Greene County to pay was built In the Creek Revival style. The in 1870, a dramatic change in popula for its new public buildings. first noor consisted of four offices with tion and tax base. Meanwhile, Asa White enjoyed a intersecting 12-foot wide hallways. Then, In 1868, Lhe cou"rthouse that windfall as his remaining properties There were four entrances. The second had served the county for almost 30 escalated in value. By 1841, he had sur· noor consisted or a largecourt room and years burned. It is an accepted opinion veyedand sold 29 lots. By 1860, he had a small Judge's chamber on the east among local historians that this court sold almost 60 more. His sale prices side. house was the victim of arson. During rangedfrom SSOto S2,595. Greene County held a prominen t the ReconstructionPeriod, certain citi The newlycreated town now required place in Alabamaduring the 1850s. It zens apparently set fire to their court· a name. In naming their county seat was a center of wealth, agricultural house to destroy indictments against Euuw. the people of Greene County activity and population. The newly local leaders brought by the despised chose lo again honor GeneralNathaniel established Southern University was carpetbaggers. Greene.General Greene's greatest vic chartered in Greensboroin 1856. The Since the county did not have the tories had been in the Carolinas and census of 1850showed that the p0pula· money to build a totally new court more voters in GreeneCou nty had been lion of Greene Countyexceede d Mobile, house, the structure was rebuilt with born in South Carolina than in any Montgomery. Madison and even Jeffer the exact same design using the walls other state. Therefore, the choice or son county. Then, the Civil War came, and foundations that survivedthe fire. Eutaw to commemorate Greene's defeat followed by significant changes for The county chose George M. Figh as or the British at Eutaw Springs, South GreeneCo unty. builder and entered into a contract with 2 2 Y EARS O F C ORPO" A s AN ATTORNC V AOVl 8 1NO CORPORATE CX-&: C U TI V& • • .I A ... C a C . Wl \..a ON 0 JR. - ALWAY S W A N TC:O T O MNOW HOW 8U S 1- Nli.SS PllOPLC MAKC occ1a10Ns. - NOW . HC' S l'INOINQ OUT . AN O HC 0 S 01 8 COVC.RING THAT •• MANUIF'A C TURIN O CONCEPTS Al-SO ... APPI..Y TO A • tr.ftVI C & •u•1Ncas - 1rs ALL FO R ABOUT El!Pfl"ICll:N T O ICLIVICRY or PRODUCTS ANO &ERVtca . ... .II M IICXPll CTa THE E.XPE:R I• ICNC& TO He.LI" HI• ,.'fA C'T f C IC AT S IROTE 6 PERMU ;TT . -T 'HC 8AMft' O III O C-.JCC.CUT I YC Me A N o w , PROGRAM • • IN C-fl•Dla L • • ~ULL OF HEW IO• A• ••• IT'"S A SLe llC-" l "' G GIANT .• SrunfordBnsiness E,wcutive MDA C. 11tft(b1t~•N1 l~ htallf'l,,.,.i.!'11r, lr IIW!t ,rJ I. 1-~.u w...illtJ, V 148/ May 1994 TME ALABAMALAWYER ter's degree program at TuskegeeUni versity. His study included question, naires and initial needs assessment. Further planning and feasibilitystudies took several more years. Finally,in the fall of 1991,design work began, in lhe summer o( 1992 bids were let, and In the fall of 1993 the courthouse was completed. The new Greene County Courthouse is named for WilliamMcKinley Branch , the county's first black probate judge. The building contains approximately 15,000 square feet and cost approxi matelySl.2 million. Jones describes the building as post modern government architecture lhal serves the county as a courthouse and administrationfacility. The structure is one-storywith a gable-roofed entrance way that creates a plaza e((ect. Steps have been eliminated and the court· him on July 18, 1868for $14.660.Figh nated the grand jury building,was con house is completely handicappedacces received$2,500 upon signing the con structed on the northeast comer. The sible. The building materials were brick tract with equal installments for the probate officewas built in 1856 on the and pre-cast concrete.Jones states lhal balance at three, six and 12 months. I-le northwest corner. A library bullding the building was designed both to be had one year lo completelhe building. built In 1931 sits on the southeast cor sympathetic to lhe past and to provide a The rebuilt courthouse was taller ner. new legacy for future Greene County than its predecessor. A tin roof with On October 14, 1970, the historic residents. The newcourt house facesthe wide eaves supported by brackets, an Greene County Courthouse, at that old court square diagonally, and was ltallanate feature, was added lo the lime just over 100 years old, was nomi built on the block northeast of the old Creek Revival structure. The brick nated lo be included on the National courthouse. walls,which remained 18 inches thick, Register of Historic Places. The struc Anticipated uses for the old Greene were plastered over with stucco. The ture, described as solidly built and in County Courthouse Include COn\'ersion building had four wrought iron bal good condition, was officiallyadded to to a museum or some other similar conies, one over each entrance, and the National Register on March 24, public building. However, funds are double-swunggreen shutters besideall 1971. Even so. discussionssoon began presently unavailable, and as a mini· windows.Al differentlimes , it has been for a proposed new courthouse. The mum the old courthouse will need an paintedgray , soft pink and while. fundingsource wouldcome from a new elevator and other Improvements for Over the years, various out-buildings industry in Greene County-legalized lhe handicapped.Preservationists hope have been constructedfor publicuse on gambling. that the historic court square with its the Greene County square. tn 1842, a The Greenetnck greyhound park courthouse and out-buildings will be structure identified as the sherifrs opened in 1977.The legislationlegaJiz. restored to serve Greene County into officeon an early map, and later desig. ing g~eyhoundracing in GreeneCounty the next century. • required the Greene County Racing Sources: Eutaw, The Builders and Commission to pay 4 percent of the Archilectureof an Ante-~llum South ...... total amount wagered to local govern ern Town, Clay Lancaster , 1979; A flwnore, Jr. ments and agencies.One of the projects Goodly Heritage-Memories of Greene ... -ii , uroow,.-o1,,,. .... for which this money was earmarked C-Ounty,Greene C-ounty Historical Soci U"""'11,yolNOUe wasa new GreeneCounty Courthouse. ety, MaryMorgan Class , editor, 1977;A OtmeondU.. The architectural firm for the new Directory of Greene Ccunly for 18S5- U,_IIIY OfAl ebomo SchcclOILlw He courthouse was David Jones, Jr. and 56, V.Gayle Snedecor, 1856. -·•leund"'U Associates, Inc. of Birmingham. The The author thanks lhe followingfor cllaltl)oroonot 1ho contractor was Campbell and Associ their contributions:David Jones, archi i111bamas.. ,. eo,'a Family t.aw Sootlon ond ates, Inc. of Tuscaloosa. tect, Birmingham, Alabama; Roberl II tn P Pursuant lo the Alabama Stale Bar's rules governing the and graduated from Gordo election of president-elect,the following biographicalsketch is High School, valedictorian, provided of John Arthur Owens.Owens is the sole qualifying class of 1957.He graduated candidate for the position of president-electof the Alabama from the University of Stale Bar for the 1994-95lerm . Alabamain May1961 with a bachelor of science degree ohn Owenswas born in Birmingham.Alabama on in commerce and business July 7, 1939 to James King Owensand Beatrice administrationand a major Geer Owens.James King Owenswas originallyof in accounting. He graduat Troy, Alabama. He moved lo Gordo,Alabama to ed from the University of IIteach school where he met and married BeatriceGeer. James AlabamaSchool of Law in King Owens,at various times. owned and operateda general January 1967, standingfirs t merchandisestore. ownedand operatedan InternationalHar in the class. vester Truck and Tractor-MercuryAutomobile Dealership, and In lawschool, he received was majoritystockho lder, presidentand chief executiveofficer the Lawyer'sTitle Award for of the Bankof Gordo. Excellence in the field of John Arthur Owen s John Owensmarried Dorothy Terry of RedLevel, Alabama, July real propertyand servedon 7, 1962.They have two children , ApsilahGeer Owens (Appie), who the law reviewand Farrah Orderof Jurisprudence. presentlypractices with the firmof Lanier,Ford. Shaffer & Payne Owensserved with the U.S. NavyReserve while in college, in Huntsville,and Terry ElizabethOwens , \vho is an interior including two summer terms of OCS.He servedthree yearson designerin Truckee, California. active duty and remained in the U.S. Navy Reserve for 11 Owenswas educated i n the publicschools of Gordo, Alabama years, attaining the rank of lieutenant He was admitted to the AlabamaState Bar in April1967. He has practiced law continuouslysince then in Tuscaloosawith the firm of Phelps& Owensand its successorfirms as a senior partner through March 31, 1994. EffectiveApri l 1, 1994 he SALIBA, REINHART, formedOwens & Carver with Susie Carver.Owens has served as a member of the board of bar commissioners,representing McL EOD & COMPANY Tuscaloosa County in place number two, since 1987. He servedas vice-presidentof the stale bar from 1991-92,and on several committees of the stale bar, including chAir of the Committeeon Bailand Recognizanceand chair of the Com BusinessValuation Services mittee on the Future of the Profession. He is a member of the TuscaloosaCounty Bar Association, AmericanBar Association, International Association of Defense Counsel, AlabamaTria l l..aWYersAssociation, Tuscaloosa Coun ty Trial l..aWYersAssociation , AlabamaDefense Lawyers Associ R. Gary Saliba, MBA,CFA, CFP. EA ation, and the Tuscaloosa Chapter of the American Inns of Court in the categoryof Masterof the Bench. Steven W. Reinhart, MA,BS In civic and communityservice, Owe ,ns has been a member Robert W. McLeod, PhD, CFA,CFP of the Tuscaloosa Rotary Club (president 1983-84); board member, vice-chairman and secretary of the Tuscaloosa Academy, 1980-86; presidentfor three terms of the Tuscaloosa County Arts Council, including service as its current presi dent; member and officer of the Tuscaloosa County Solid Waste Authority for approximately five years; chair of the Jemison House fund drive; trustee of First United Methodist 333 FRANXLINSl1U!ET 2209 9lli STREET, $TE200 Church of Tuscaloosa; memberof the original board of direc HuNIS\IILLE,AL 35801 TUSCALOOSA, AL 3540 I tors of the Children's Hands-OnMuseum; board member of (205) 539-3965 (205) 345-0934 the Tuscaloosa Symphony Orchestra; and recipient of the 1985 Patron of the Arts Awardpresented by the Arts Council of TuscaloosaCounty , Alabama. • 150 I May1994 THEALABAMA LAWYER Evecyyear, thisone simpleitem in youroffice costs 00 you$1500. * ow multiply 1hal by the number of file cabinelS a key. 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The AlabamaState Bar Qualityof Life SurveyResults By: Keith B. Norman In July 1990,President Harold Albritton appointed a task force to examine the quality of life of Alabama lawyers. Satisfaction In his charge to the task force, President Albritton noted: A recurring complaint heard aroongolder lawyers throughoot ' Alabamais 'practicinglaw is just notfun anymore. ' Withyounger lawyers a frequentcanment is 'thisis notwhat I expected thepractice of lawto be. ' liWlyis this? ith Jerry Wood of Mont experiencingthe levelsof professionaldis Compensation gomery as its chair, and satisfactionexperienced by their peers in • W William Canll of Binning other states. The boardapproved t he task ham as its vice-chair.the task force'sr ecommendationand the Capstone force reviewed many or the Poll at the Universityor Alabamawas quality or life studies done by retained to conductthe survey. other state and localbars- Mer Thesun-ey was basedon a randomsam reviewingthe effortsof other ple of 500 =bers of the bar and was bars, the task force con proportionalwith respect to gender and cludedthat although the race. Of the sample total, 401 completed general findings of the the sunoeycon ducted tclephonically by studies conducted by CapstonePoll employeesexperie nced in other bars indicated telephoneintervie-v techniques. The find that the le--elof dissat ings were broken down into ten basic isfac:lionwith the prac components which eovtred more than tice of lawwas high, it was I00 pagesin the final report prepared by impossibleto quantify from the CapstonePoll. The results of each of those findingsthe satisfac thosecomponents are summarized below. tional level for Alabama lawyers.As a result, the task Professional demographi cs force recommended to the Three-quarters or the lawyers in the board of bar commissioners sample practice in law firms (53 percent that a survey of Alabama in firms of two-ten lawyers), and the lawyers be conducted remaining quarter practice as solo prac· i--- lo determine if Ala titioners (17 percent) and in other set bama lawyers were tings such as governmental agencies, 152 / May 1994 THEALABAMA LAWYER judicial offices, corporations and non Other perceptions indicate that 92 profit agencies.The largest number, 40 percent of the lawyersthink there is an percent, describe their major area of increase in pressureto specialize,21 per practiceas litigation. Lawyerswere con cent feel that new lawyersare paid exces centratedin the major metroPolitanareas sive salaries, 55 percent perceive that of the stale, with three-quartersof them clients are retaining counsel more fre practicingin one or the four major met quently on a transactional basis rather roPolilan counties (Jefferson.Madison. than retainer. and 62 percent belie11e Mobile, and Montgomery). lawyersare becoming less loyal to their firms or companies.In terms of private Personal demogr11phlc• matters. 13 percent perceive serious The sample consists or 81 percent chemical dependency problems among males and 19 percent females with 97 lawyers, and 36 percent indicate that percentwhites and 3 percent minorities. many of their friends from law school Nearlyfour-fifths of the resPondentsare havehad marital problems.0\--er 58 per percei~-ediscrimination within the pro married and dose lo three-fourths ha\'t cent would like to have more time for fession, while only 43 percent of males children. Three-fourths of those with professionalactivities such as pro bono perceivesuch discrimination.There was children have minor children (i.e., work, community activities, and bar not a sufficient number of minority younger than 18 }>earsof age). One In activities. Finally, 51 percent perceive resPondents to consider this item in eight of these parents ( 12.3percent) has continued discrimination within Lhe terms or racial subgroups. primary responsibilityfor the care of professionbased on personalcharacter their children, and three-fifths (60 per istics. Interestingly, discrimination Overall Job sati sfaction cent) have shared responsibility. within the professionis more likely to be The vast majority of resPondentsare Approximately40 percento f the married perceived by junior associates(61.8 per either salisAed(55. 1 percent)or verysat respondents have sp0uses who do not cent) lhan by partners (46.3 percent). isfied (39.4 percent) with the ch~llenge work outside the home, nearly 12per and most likely be perceivedby those in and stimulation of their legal work. cent have SPouses who are also lawyers, non-profit agencies (100 percent). An Those in Judicial officesa re most likely and the remaining 48 percent have additional analysis or the discrimination to be very satisfied (67.7 percent), and spousesin a wide range of other occupa item reveals that 87 percent of females tions. Roughly6 percent indicated thill they were separatedo r divorced. Nearlythree -fourths of those surveyed indicated that they were under the age of Looki:ng For 46, with nearly 42 percent in the 36--45 age range. Over two-thirdsof those sur So:nie--thi:ng? veyedwere bom in Alabama. Perceptions of the legal profession In general, la\\'}ltfS appear lo have a mixedfeeling regarding their profession. • Fraud For example,nearly 81 percent think the • Lost Profits legal profession is becoming less of a • Business Value professionand more or a business, 89 percent belil!'--ethe public's view or • Litigation Support lawyersis becomingless l)OSilive,68 per • Financial I nvesrigar ion cent percei\'t the rtlationships between lawyersare becoming moreadversarial, We can helpl Ca ll th e and 65 percent think their career demandsaffect their ability to havea sat fo rensic accounta nt s isfyingprivate life. On the other hand, and fr aud exa min ers . only 26 percent think they may not choose the professionagain if reliving their lives, 13 percent are sometimes embarrassedlo admit they are lawyers, 85 percent a.re conndenl lhey made the 1530AmSouth/Harbert Plaza right career choice, and 83 percent plan Birmingham,Alabama to remain in the legal profession for the 205-716-7000 rest of their career. THEALABAMA LAWYER May 1994/ 153 those not in law firms tend to express IO\\'trlevels or stress comparedto those in firms.This diffeRnceis accounted for primarily by those in judicial officesand those In non-profitagencies . As a p11rtof the workloadissue, those in law iirms were asked to estimate the number of billable hours or legal work they typically complete. This que.\tion was not applicablefor all respondentsin law firms, but 248 were able to give a response to this item. The distribution shows that more that half of these (I 47 or 59.3 percent) report more than 38 billable hours per week. 1\,·enty-seven ihose ln non-profit agencies are least as age). and limitations imposed by the percent report more than 45 billable likely lo be very satisfied (20 percent). company. hours per week. Those who are dissatisfiedcited reasons Current workload is describedas over Overall, then, lawyerstend to be satls• such as Inabilityto ' work on cases they whelmingby l8 percent of respondents; fled with the nature of their work, but would choose, routine and drudgery heavy, but manageableby 60.8 percent; many feel the workload and stress are af\er ytars or the same thing, and the about right by 20 percent; and insuffi rather high. business aspects which interfere with cient by less than I percent. Junior asso challengingwork. ciates and those in corporations and Satisfaction with Most laW}oersare also either satisfied non-profitagencies are least likelyto feel working relationships (43.6 percent) or very satisfied(32.4 per· overwhelmed,while those in govern. Lawyersappear to be quite $lltlsfied cent) with iheir current opportunitiesto menl agencies and judicial offices are overallwith collegialrelationships with advancetheir careers. Those not practic· most likelyto feeltheir workloadis over in their offices. Forty-four percent are ing in firms, however,are somewhat less whelming. In all subgroups, the majori· satisfiedan d an additional48 percent are likely to be satisfied (28.8 percent) and ty or respondentsfeel their workload is very satisfied,yielding a total or 92 per more likely lo be dissatisfied(14.9 per· heavy,but manageable. cent In these two categories. Only 4 per cent) or very dissatisfied( 4 percent). In Correspondingto the heavyworkload, cent were dissatisfied,with 1 percent ihis subgroup, those in government 50.4 percent o( lawyers describe their very dissatisfied.There is relativelylittle agenciesexpress the greatest dissalisfac· le\coelor job.Rlated stnss as high. and variation across categorieswith respon lion with opportunities for advance· 20.2 percent describe it as very high. dents to this question.Sources of dissat· ment. Dissatisfactionin this area arises Within law firms, junior associates are isfaction include issues such as lack of primarily from limitations due to the more likely LO express lower levels of ca1TU1raderie,lack or lime for relation size or nature or the firm or company, stress; stress levelappears to be unrelat ships, lack of communication. and hav internal politicsand demographics(such ed to the size or the law firm. Overall, ing little in common. On the whole, lawyersare either satis fied (50.4percent) or very satisfied(36.4 percent) wilh their relationships to clients, although this question was not applicable for many who are not in a firm. Lawyers in non-profitagencies are Pleasenote: least likelyto be very satisfiedwith these relationships(0 percent), bul most likely to say they are satisfied(80 percent). All Thepublication date of the respondentswere asked to describe any complaints they have regarding clients. bardirectories has been These comments are summarizedin the full report. Most lawyersare satisfied v.•lththeir changedfrom December 1993 relationships1,eith other lawyel'5outside their o.ffices(69. l percent),and 18.5per · to June 1994. cent say that they are very satisfiedwith Lhese relationships. They are slighUy more likely lo express dissatisfoclionon Lhisquestion (8.5 percent) than on the precedingquestio ns about relationships. 154 / May 1994 THE ALABAMALAWVER Thosemost likelyto be verysatisfied are sation increases,satisfaction w ith com partners in firms (20.5 percent) and pensationand the basis upon which it is lawyersin judicialoffices ( 40 percent)or determinedIncreases. non-profit agencies (40 percent). Compensationdoes vary, as would be Sourcesof dis.satisfactioninclude having expected,by a position in a firm, with too little opportunity for such contact, partner$having the higher levelsof com the adversarialnature of these relation pensation. With regard to the size or ships,and lackof trusL firms, the large firmstend to have levels Satisfaction with relationships with clustered in the SS0,000 to S80,000 the judiciaryalso is high, with 60.1 per· range,while the small or medium-sized cent satisfied and 18.7 percent being firms havea more defused distributionof very satisfied. Less than l percent are compensation levels. For those not in verydissatisfie d and 7.5 percent are dis firms, non-profit agenciestend to have satisfied.F' or thosew ithin firms, the pal· the lowest compensation levels. Overall, tern is quite similar acrosspos ition cate the compensation of those not in law gories. f'or those not in firms. the great firms tends to be lower than those prac est satisfactionis expressedby those in dissatisfiedor verydissatisfied with their ticing in flrms. judicial officesthemselves, and the low compensation.The primary reason for As with other areas, the majority of est satilfaclion is expressedby those in dissatisfaction is related to perceived lawyers express satisfactionwith com go11emmentalagencies. The causes of inequitiesrelative to the amount of work pensation Issues.As would be expected, dissatisfaction include the political or relativecontributions or others. Those satisfactionis slTonglyrelated to actual nature of the judiciary,lack of contact, who said their pay is simplytoo low are compensation. The primary sources or perceivedpartiality, and lackof consider most likely to be senior associatesand dissatisfactionrelate lo perceptions of ation of other demandson lawyers'time. partners. inequity in these matters. The inequity Thus, the vast majorityof lawyersindi· Thesesalisfaction variables were com arisesboth from internal comparisonsof cate that they are either satisfiedor very binedwith the reportedannual compeo, time and effort relativeto outcomesand satisfied. Satisfaction appears to be sation to assess relationships between from external comparisons of one's own somewhat higher for within-officerela satisfaction and compensation. The work and compensation relativeto that tionships than for relationships with results show that generally, as compen- of others. lawyers outside the office or with the judiciary. ~------HEALTH CARE AUDITORS , INC .------~ Satisfaction 1-,c:~, with compensation Overall.54.6 percent of lawyersare HEAL TH CAR£ AUDITORS. if'IC. ~ - satisfiedand 18 percent are ~-erysatisfied 1,ith the basisupon which their compen MEDICAl./DfNI'AL MALPRACilCEEXPERIS sation is determined.Partners and those in non-profitagendes are most likelyto • GRATISMEDICAL n:AM PREVIEWOFYOURCASE! N1 indq,d,e-'>luatioo to be satisfied or very satisfied with the asctrt3lnand define e>IIS3tt0n , llabllltyand breaches In sundatdsof cnrt basis for determining their compensa 0 tion. Approximately 21 percent of GRATISCLINICAL- CONFERENCES: We shall cattfully take )OU step by step , through respondentsare dissatisfied or very dis eachcase w Insur? 1h,1 iour clinical knowledge Isrom memur,uewlthours. Wesh311 bebrutally satisfiedwith the basis upon which their candidIf ca.1eevide ncesno merit, or if causationIs poor. compensation is determined. When 0 GRATISOJNICAL REPRESFNTATIVFS TO YOUROF'F1C£: !ooqith reviews . asked why theya re dissatisfied,the most 0 GRATIS, DETAILED, WRFJTENREPORTS: Shouldacastbeunwonhyof ~11 , frequentresponse is that the distribution andupon )'DU dlrtttives, "" slullbe pleased 10 fOIW1td o deulled repon of pay Is not equal in terms of amount or work or contributions.This response is • HCA!Bati e:FEE lt$275 . Youincutnomnsunul!J!!!choosltopuffllttheexpen 's11"00<· most frequent among junior associates upfor his al!idlv,L Nortdl?d tJptt1S. no fcrelgn ~ andoo coon V.'Offl e:q>ffl5 . HCA!Is not and partners.State salarylimitations are a Simplerdeml lff\iceas ""bs\"pn,ridedUdgatlon ~ loro,w100 rums llvoogl1out tilt mentionedoften by those in g THE ALABAMALAWYER May 1994I 155 Satisfaction with Overall,47.9 percent of lawyersare sat as the most satisfying aspect of the job, professional resources isfied with the amount of time they have and the heavy workload was cited most Eightypercent of lawyersare satisfiedor to spend with their family, and only 6.7 frequently as the least satisfyingaspect of very satisfiedwith the resourcesand assis percent are very satisfied. Those in gov the job. When asked about specific types tance providedby their firm or office.Over ernmental agenciesand judicial officesare of cases or assignments, litigation cases 90 percent have libraries on the premises, the most likelyto be satisfied.Over 40 per were most often named as the most satis two-thirds have computer research capa cent of lawyersare dissatisfiedor very dis fying, and family or domestic cases were bilities, and three-fourths have personal satisfiedi n this area. most often named as the least satisfying computers available to them. Approxi Respondentswho have minor children cases. (There were some people,of course, mately 60 percent have paralegalsand 60 were asked to indicate their satisfaction for whom domestic cases were the most percent have office managers. Nearly 50 with their ability to manage child care satisfying and for some whom litigation percent estimate that they spend less than responsibilities. As pointed out previously, was least satisfying).The most frequently 10 percent of their time on office activi one-eighth of these parents have primary cited complaints about clients were their ties; other than practicing law. responsibilityfor the care of their children unrealistic expectations and demands. and three-fifths have shared responsibili- Unlike most of the other bar surveys Sati sfac ti on with which indicate a high level of dissatisfac balance between work and tion, the Capstone Poll indicates that othe r ac t ivities overall job satisfaction among Alabama Barelya majority of lawyersexpress sat lawyersis very high. What makesAlabama isfaction with the balance between their lawyersd ifferent from their peers in other work lifeand other activities (44.4 percent states in this regard is difficult to say. are satisfied, 11 percent are very satisfied). Despite the overall high degree of job sat One-third indicate dissatisfaction and isfaction, the poll brings to light several approximately6 percent are very dissatis· areas that require watching or further fied. In general, such dissatisfaction is study. One area is the heavyworkload and higher among those in law firms, and high stress level experienced by many there it is greater among junior and senior lawyers. Over time, heavy workloads and associates than partners. The other activi high stress could erode satisfaction. The ties referred to in this question include poll already indicates that the lowest lev community service, leisure activities, and els of satisfaction now occur where time with familyand friends. Lack of time lawyers feel that other activities suffer and heavyworkloads are cited as the major because of pressing workloads. causesof dissatisfactionin this area. Another area of concern involves When asked specifically about partici· lawyers who work for governmental and pation in civic or community service non-profit agencies. The evidence sug activities, 78.6 percent of lawyersindicate gests that as a group, these lawyers are they do participate in such activities, and ty. Two-thirds of the parents (66.4 per the ones who are most likely to be dissat approximately 76 percent are satisfied cent) are satisfied and 13.8 percent are isfiedwith their jobs. This is particularly with their opportunities to do so. Within very satisfied with the management of disturbing because the degree of dissatis firms, partners are most likelyto be satis child care responsibilities.Approx imately faction among public sector lawyers as fied in this regard; outside of firms, those 17 percent are either dissatisfiedor very revealed by the survey might be having a in judicial officesare most likelyto be sat dissatisfied. As with other areas of life, negative impact on the conduct of the isfied.The 21 percent who are dissatisfied those who are dissatisfied cite a lack of public's business. or very dissatisfiedwith their opportuni time as the primary difficultyin this area. f inally, the fact that 87 percent of the ties overwhelmingly cite lack of time as Compared to other sections of the sur· responding women lawyers and 43 per the cause for their dissatisfaction. vey, the highest levels of dissatisfaction cent of the responding male lawyers Fifty percent of the respondents indi are found in this area of balance between believe that discrimination is a problem cate they participate in pro bono work but work a.nd other activities. Those who merits further study to determine tl1e most of this is conducted by those in law express dissatisfaction are almost unani exact nature of the problems confronting firms. Approximately60 percent express mous in indicating that their heavywork Alabama's women lawyers. Similarly, satisfactionwith the opportunities for pro load precludes many of these other desir because the survey sample was too small bono work. Junior associates. in particu able activities. to be statistically valid, the areas of con lar, are likely to be dissatisfiedwith their cern that are unique to Alabama'sminor · opportunities to participate in pro bono Open-ended ity lawyersneed to be ascertained. work (44 percent are dissatisfiedor very questions regarding Copies of the complete Capstone Poll dissatisfied).Major causes of dissatisfac work and clients may be obtained by writing or calling the tion are lack of time and regulations pro Many interesting comments were made AlabamaState Bar. The cost is $12.50a hibiting pro bono work (particularly for in response to open-ended questions. copy (includes postage) for bar members government employees). Helping people was cited most frequently and $30.00 for nonmembers. • 156 / May 1994 THE ALABAMALAWYER I OPPORTUNITIES The fo//01uingopportunities hove~ OT)prl)l)edbg /he AlabamaMandatory Continuing legal EducationCommission for ClE crcdil.For informationregarding other availableOT)proved programs, conlacl /he MClE Commissionomce al (205)269 -1515or 1- 800-354-6154,and a completeCLE calendar will be moiledlo you. 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Credits: 5.8 Cost:S60 Credits: 17.2 Cost: $375 For informationcaU (205) 262-2566 (205) 254-1626 (800) 221-2972 ext. 565 or 503. 22 Wednesday ~ -t.gal.lnc. JUNE IMPACT OF THE ADA ON 62 WhiteSireei, IfWt® WORKERS' COMPENSATION NYC 10013 1 Wadne•day Bim1ingham ALABAMAS URVEYI SSUES LormanBusiness Cen ter, Inc. THE Al.ASAMAI.A \I/YER May1994 / 157 THEALABAMA CLASSACTION In the firstpart of this article,printed in the March1994 Alabama Lawyer, the requirementsfor classce rtification werediscussed. This second part coversclass action issues involving jurisdictionand venue,discovery, precertilication motions, abatement , certification hearings, appeals, statutesof limitations,notice, settlements, and attorney'sfees. By:Alan T. Rogersand GregoryC. Cook JURISDICTIONAND VENUE action litigation, venue issues may be n Alabama, circuit courts much more compelling in these cases, have jurisdiction over as compared to cases involving only a class actions. District small number of parties and witnesses. I courts are not allowed to In federal court, venue for a class adjudicate class actions, see A.R.C.P.23 , action under Rule 233 is determined District Court Committee Comments, just as it is in a comparable type of non and a circuit court will aggregate the class action. The court, however, only claims of all class members to reach its considers the residence of the named jurisdictional amount in controversy . class representatives. See 38 Moore's See Thomas v. liberty National Life FEDERAL PRACTICE§ 23.96 at p. 560.l Ins.Co., 368 So. 2d 254 (Ala. 1979). n.l l ("Because venue turns upon the Absent federal question jurisdiction, convenience of the parties ... it would federa l divers ity juri sdiction may be make no sense to consider the residen invoked with diverse citizenship and cy of the other members of the class"). the requisite amount in controve rsy. The United States Supreme Court has DISCOVERY held that diversity need only be main In most cases, discovery must pro tained between the named plaintiffs' (as ceed for the trial court to have adequate opposed to each of the putative class evidence on which to base its certifica plaintiffs) and the defendants. Snyder.p. tion decision. The Alabama Supreme Harris, 394 U.S. 332, 340 (1969). But, Court has stated: "The tr ial court has as to the requisite amount in controver the duty to determine the class action sy, the amount must be shown as to question whether or not a motion is each of the named plaintiffs and puta made by either of the parties ... It must tive class members (i.e., the court will determine ... that all prerequisites of not aggregate the claims of the class to 23(a) are met and, in addition, that at satisfy the amount in controversy). Alabama's norma l venue rules to the least one of the three re.quirements of 2 Zahn v. /ntemational Paper Co., 414 named plaintiffs. 23(b) are satisfied." Bagley v. City of U.S. 291 (1973); but see Garza v. The princip le of forum non conve· Mobile, 352 So. 2d 1115, 1118 (Ala. National American Ins. Co., 807 niens, however, may be particularly 1977). F. Supp. 1256, 1258 (M.D. La. 1992) suited to class actions that are filed in a At the certification hearing, the tria l (citing cases and commentary and hold· venue convenient only to a representa court must make a factual determina ing that 28 U.S.C. § 1367 overru led tive plaintiff. Ala. Code § 6-3-21. l , tion that the named represen tatives Zahn). allowing change or transfer of venue for have met their burden of proof as to convenience or in the interest of jus each of the elements discussed in the tice, should be carefully considered Venue March 1994 Alabama lawyer article, No Alabama Supreme Court case has when a defendant or a substantial por including numeros ity, commona lity, yet specifically addressed venue for class tion of the alleged class reside outside typicality and adequacy of repr esenta· actions, but presumably Alabama would of the venue where the case is filed. t ion. Because a decision to certify a follow the federa l case law and apply Because of the broad scope of class class will bind absent class member's 158 / May 1994 THE ALABAMALAWYER rights (possibly without notice), courts will often allow discoveryto insure that a court's factual determination is cor NOTICE rect. In Firs/ Alabama Bank of Mont gomery, N.A. u. Marlin, 381 So. 2d 32 (Ala. 1980), the Montgomery County TREAT AWARD Circuit Court permitted months of dis covery regarding issues posed by the class allegations before conducting a FOR EXCELLENCE hearing on certification. In Marshall Durbin& Co. u. Jasper UtilitiesBoard , Each year-at its annual meeting in November, the Nationa l 437 So. 2d 1014, 1024 (Ala. 1983), the College of Pr0.bateJudges honors the recipient of its presti WalkerCounty Circuit Court conducted a class certification hearing lasting gious Treat Award for E,ccellence. The award was created three days and then denied certifica and named in hono r of Judge William W. Treat, tion. The denial was affirmedon appeal in part because the evidence showed founder and president emeritus of NCPJ. that the named plaintiffs had claims arguably different from other members The College annually selects an individual who has made a of the purported class. significant contribution to the improvement of the law or judi - Commentators have also agreed that fact issues are involvedin the certifica cial administration in probate or related fields. tion process and that discoverymay be The purpose of the award is "to recognize and encourage necessaryin advanceof certification.As stated, for example, by NEWBERGO N achievements in the field of probate law and related fields CJ.ASSACTIONS , 3d ed., § 7.08 at p. 7-29: consistent with the goals of the National College of Probate Discovery ... of class represen tatives may be appropriate in Judges." Previous recipients have been members 0f the order to probe the affidavitssub judiciary, attorneys and law school deans or professo~s. mitted in support of the class action , to test the plaintiff's alleged typicality of claims, to Submitnomination s of qualifiedindividual s to: challenge specificareas which the Treat Award for Excellence Committee defendant reasonab ly believes involve potential connicts with National College of Probate Judges class members. or othenoise to 300 Newport Avenue question the qualificationsof the plaintiff to serve as a representa Will iamsburg, Virginia 23187-8798 tive. Lyonswrites: This committee includes three NCPJ officers, Often, some discovery may be the president of the American College of Trust and Estate necessarybefore the issue is ripe for judicial intervention.' Counsel, and the chair of the American Bar Association's Section on Real Property, Probate and Trust Law. Discoveryrequests related to issues of class certification and notification are Nom inations should inelude a resume of activit ies, letters of governed by Rule 23(d) - allowing the court to make such orders as are recommendation , awards receivea, achievements in probate ''appropriate" for the class action. and related fields of law, and any other relevant materia l. Becausethe trial court is givennexibili ty in conducting the class action in Nominations received by June 15, 1994 general. the trial court is also giving Oexibilityin designing the timing and will be considered for selection of the recipient to be scope of discovery.Many federal courts, introduced at the annual meeting in November in adopting discovery orders, have relied on the Manual for Complex Lili in Charleston, South Carolina. ga/ion, Second,1985. Por instance, fed eral courts have entered orders limiting THEALABAMA LAWYER May1994 / 159 NOTICETO ALLALABAMA STATE BAR MEMBERS AVAILABLESOON! ALTERNATIVEDISPUTE RESOLUTION HANDBOOK WITHMEDIATION MODEL The AlabamaState Bar's Task Poree on AlternativeDispute Resolutionbas prepared a handbookaddmsinll alterna tive dispute resolution (ADR)procedures currentlyavailable in Alabamawith a focus on mediation.The pul'J)OSeof the handbookis to providea useful tool for judges and attorneys in utilizing ADRin Alabama.(All judges will be provideda copy through the AlabamaJudicial College.) The handbookcan be purchased by sending the order form belowwith yaur check lo the AlabamaState Bar. ,------, ALTERNATIVEDISPUTE RESOLUTION HANDBOOK WITHMEDIATION MODEL ORDER FORM Cit;y______State ______Zip__ _ TelephoneNo. ______ For ordm of lus than 20 - Send __ copies of the ADR 8andboolrat $10.00 per COJJ)I for a total of s_ _ _ For onlm of 20 or more· Send _ _ copies of the ADR HandbookIll $8.00 per copy for a total of $__ _ Maireche ck payablet o: Alabama State Bar ADR Center and mail to AlabamaState Bar c/o Keith Norman P.O. Box 671 Montgomery, AL3610 1 L------~ 160 I May1994 THE ALABAMALAWYER discoveryto class issues until a certifi amountsof damage. 1979). the Court amrmed a summary cation hearingis heJd.• judgment dismissinga case and noted: The UnitedStates Supreme Court has PRE-CERTIFICATIONMOTION S held that trial courts in class actions What if class certification has not (NJo cases cited lo us by the should not require defendants to bear been reached, but the defendant files a plaintiffmandate a postpOnement the costsor performingtasks requested motion to dismiss or for summary of the determinationby the court by and benefiting the plaintiff. In judgment? May the trial judge dismiss for rurther discoveryand an evi Oppenheimer Fund, Inc. v. Sanders, the claims of a putativeclass beforecer denliary hearing when the un 437 U.S.340 (1978), the plaintiffsought tification is considered?The answer is controverted facts show affirma to obtain a list of all investment fund yes. although the res judicala (but no/ tively that the plaintiff does not shareholders. The defendant showed the stare decisis) effect of a dismissal share the identity or interest that retrievalof the informationwou ld may be eliminated for unnamed, puta requiredI for class certification). involve substantial costs. The United tive clai;smembers. States Supreme Court held that the While voluntary dismissals are sub· Federal cases have also allowed dis defendant should not have to pay the ject lo court approval, see Rule 23(e), positivemotions prior to class certifica costs of the retrieval: involuntary dismissals are an excep tion. A defendant may move for sum The general rule must be that tion. Involuntary dismissals will pre maryj udgment prior to or at the same the representativeplaintiff should sumablynot Involvecollusion or bene time as class certification. See, e.g.. performthe tasks, for it is he who fits to representative plaintiffs al the Lorberv. Beebe,4 07 F. Supp. 279, 291 seeks to maintain the suit as a upense or the class. (S.D.N.Y . 1975).In so doing, howe11er, class action .... (Al party must AlthoughJustice Maddoxopined in a the defendant assumes the risk that a bear the "burden of financinghis special concurrence in 1981 that pre judgment in his favorwould not protect own suit ..• ." Thus ordinarily certificationdismissal of a class action him from subsequent suits by other there is no warrant for shifting is rarely appropriate- Jones v. Soulh potential class members - the defen the cost of the representative em United life Ins., 392 So. 2d 822 dant must be content with stare decisis plalnlifrs performance of these (Ala. 1981) (concurring opinion) - his protection, rather than the protection tasks to the defendant. opinion now may be the minority view, or res judicata. See, e.g., Roberts v. 437 U.S.at 356. and there are Alabama cases in which AmericanAirlines, Inc., 526 P.2d 757, motions addressed to the merits were 762-63 (7th Cir. 1975).The Manual011 Courts have also allowed discovery considered in advanceof certification} Comp/ax litigation,§ 30.11, p. 209. from absent class membersfor the pur For instance.In Helms v. FirstAlabama agrees, stating: "Often ... the court not poses of determining the propriety of Bank of Gadsden.N.A., 386 So. 2d 450, only may, but should rule on motions class certification.• For example, in 454 (Ala. Civ. App. 1980), the court under Rule 12 or 56 without awaiting TransamericanRefining Corp. v. Dra1lo affirmeda summaryjudgment dismiss class certification." Corp., 139 F.R.D. 619, 622 (S.D. Tex. ing the casewhere there had been no Defendants may raise Rule 12 1991),the court alloweddiscovery into class certificationruling. grounds for dismissal.For example., fed issues of reliance by the absent class In Amason o. First State Bank of eral cases ha,oeheld that the requisites members.their actual damages and the Lineville, 369 So. 2d 547, 549 (Ala. of a class action (i.e., the facts) must be Officially E11dorsed a11d Recomme11ded by Attorneys' Title Guaranty Fund, In c. Did you do 129 closings last month with 1 computer and 1 secretary? Leacia did.•. • We sell speed which makes you money. Turl>ocLOSE' • Sleek, FIISIand Unencumbered. Fastest l'rognim for Real &tare ClosiDgs • Contract to Closing Table in 30 minutes. (II ... . CAIi us NOWI) (800)741-6465 THE ALABAMALAWYER May1994 / 161 pied by the plaintiff with sufficient controversy until the controversy under Rule 23(d)(2). specificity (or the complaint to with is concluded, subject only to Class issues and the evidentiaryhear stand a Rule 12 challenge. SeeBalsa/as appelJatereview. ing must revolve around the Rule 23(a) v. Federal Deposit Ins. Corp., 670 F. requirements and, if a class is to be cer Supp. 749, 757 (W.O. Mith. 1987). The tified, a detennination of Rule 23(b) class action complaint must allege The Barbour Circuit Court ini class twesmust be made.- all covered more than mere conclusory allegalioni tially exerelsed jurisd iction over in the first part of this article in the that followthe language of Rule 23.See this matter, and it must be per March 1994 edition of the Alabama Ahrens u. Bowen, 646 F. Supp. 1041, milted lo retain Jurisdictlon with· lawyer. 1047 (E.O.N.Y. 1986). ooerruled on out any Interferenceby any other If a class is lo be certified, an eviden other grounds, 852 F.2d 49 (2d Cir. circuit court. tiary hearing should, at a minimum. 1988). Id. involve presentations by the named Pre-certification motions may also plaintiffs and their counsel to support help define the scope of th e alleged CERTIFICATION IIEAJUNC their burdens to meet the Rule 23(a) class. l'or Instance, In Bersch v. Drexel Very early In the evolution of class requirement.s and an opportunity for Fires/one, Inc., 519 F.2d 974 (2d Cir. action litigation in this state, the Alaba the defendanl to address those same 1975),the court of appealsheld that the ma Supreme Court made clear that a issues th rough examination of the federalsecurities laws were inapplicable class certification hearing and a deliber plaintiff's evidence and presentation of to sales of a corporation's stock to for ative process in\OOlvingthe prerequisites evidence of its own.Although the dis· eign purchasers outside of the United of Rule Z3are mandatorv if a class is to cretion affordedthe trial court in mold Slates - thus eliminating from the be certified. In Bagleyu. City of Mobile, ing class litigation aHows certification puta~oe class all purchasers other than 352 So. 2d 1115 (Ala. 1977), the trial to be modified or wholly withdrawn, those who were residents or citizern of court noted in its final judgment in and even recognizing that Rule 23 the United States. favor or the plaintiffs that "this action makes reference to certification taking has been properly maintained as a class place as soon as practicable, there is lit ABATEMENT action. • Reversing, the Alabama tle logic in moving too quickly toward a In a case of first impres sion, the Supreme Court noted that the record certification hearing without allowing Alabama Supreme Court recently grant did no/ r eOecta class certification hear discoveryaddressed to the issue. Other ed a writ of mandamus ordering a trial ing or a separate order of class certifica wise. the hearing will take on more of court to stay an action brought in an tion. The Court ruled that ..an order of the cha racteristics of a preliminary individual capacity. The plaintiff was a determination Is mandatory" and that exercise than it will a full consideration member of a class that had already been "the trial court has the duty to deter by the trial court of the Rule 23 certified in a separate action against the mine the class action question whether requiremenu. same defendant regarding the same or not a motion is made by either of the One federalcommenta tor has noted: allegations. See Ex par te Liberty parties.· Id. at 1118. In determining whether an National life Iris. Co.. __ So. 2d A hearing may be requested by the action brought as a class action is ~ 1993 W.L. 522564 (Ala.). The one proposing the class, by the one to be so maintained, the Lrial Alabama Supreme Court broadly wrote challenging the class suit or by the court should cartfully apply the that: court on its own motion. The court may criteria set forth in Rule 23 for The law is clear that the circuit permit discoveryon questions related to the maintenance of a class action court in which Jurisdiction over a the character and size of the class to the facts of the case; and if it controve rsy is first invoked has before the certificationhearing and may fails to do so its determination is exclusive Jurisdiction over that allow such notice as discretion permits subject to reversal by the appel late court when the issue is prop erly before the latter court. 38 Moore's FEDERALPRACT ICE § 23.50 at MEDIATION p.411. T RAll\11\G SEMl'.':AR APPEALSOF CERTIFJCATIOSORDERS A 4 day, 40-hour course designtd to qualify you If certification Is denied, may the to mtdiau business, Jamil)• 01111co mm1111ity tlispUles. plaintiffs appeal that order? If certifica tion is granted, may defendants appeal that order? The Alabama Supreme 1-800-ADR-FIRM BIR MING HAM Court has held that "an order denging July II · 14 CAL.I, t'OR A t"REEIIR OCHIJRF. Aug11s1 8 • 11 class certification is an appeafabfe 'final' order." noting that denial of certi fication effectively terminates the litiga Mlllllt\1 .ION CORl'ORA'l"ION• P.O. Box 6161 • Rockford, IL • 61125 tion as to all members of the class other 162 I May 1994 THEALABAMA LAWYER than the original, named plaintiff (i.e., before a trial on the merits, but to over court pu rsuant to Rule 23(e) is also the death knell doctr ine). Butler v. turn those orde rs where Rule 23 appealable as a final adjudication. Gen Audio/VideoAffiliates, Inc. , 611 So. 2d requirements were not met. For exam dron v. Shastina Properties,In c., 578 330, 331 (Ala. 1992). The Court did not ple, in Ex parte Blue Cross and Blue F.2d 1313, 1315 (9th Cir. 1978). address the related question of the res Shield of Alabama,582 So. 2d 469 (Ala. judicala effect of the class ruling on any 1991). the Court granted a petition for STATUTE OF LIMITATIONS future attempts by class members to writ of mandamus and overturned a trial What happens to the statute of limita assert class rights in separate proceed court's certification of a class. the Court tions for claims of unnamed, putat ive ings. finding that the plaintiffs had not met class members when cert ificat ion is The federal courts, however, disagree their burden of proving each of the four denied? That is, if a class suit is filed, with the "death knell'' doctrine and hold elements of Rule 23(a). but certification is later denied after the that denials of certification are not final, If class certificat ion is granted, the statute of limitat ions has run on the appealable orders. See, e.g., Cary Plastic issue of certification may be raised in an class claims. will individual members of Packaging Corp. v. Merrill, Lynch, appeal of the entire case. See, e.g.. Har the putative class then be barred from Pierce,Fenner & Smith, 903 F.2d 176, bor Insurance Co. v. Blackwelder,554 bringing their own claims? 178 (2d Cir. 1990). So. 2d 329 (Ala. 1989); Bagleyu. City of As for orders granting class certifica Mobile, 352 So. 2d 1115 (Ala.1977 ). AlabamaLaw tion, the Alabama Supreme Court has Because of the broad range of issues The Alabama Supre me Court has ruled that such orders - being inherent included in class certification orders, addressed this issue several ti mes, ly prov isional in nature , subject to and because of the provisionalnature of including: change as the litigation unfolds - are these orders, trial courts in Alabamaare First Baptist Church of Cit· not final judgme nts for purposes of given a certain amount of latitud e or ronellev . Citronelle-MobileGat h appeal. In First Alabama Bank u. "discretion" in granting or denying class ering, Inc.. 409 So. 2d 727. 729 Martin, 381 So. 2d 32 (Ala. 1980), the certifications. An oft stated rule is that (Ala.1981 ) Court indicated its unwillingness to such rulings will only be reversed for an Class certif ication was denied address interlocutory appeals of orders abuse of discretion. See, e.g., Butler u. and the statute of limitations then granting class certification, noting that Audio/VideoAffiliates , Inc., 611 So. 2d expired. A second suit was filed such orders are inherently provisional; 330, 331 (Ala. 1992). Such reversals for and the defendant raised the that the trial court is at liberty to alter abuse of discret ion have, however, stat ute of limitations. Just ice or amend such a ruling at any time; and occurred in some cases where the Alaba Faulkner, writing for the majority, that the trial court may even terminate ma Supreme Court reviewed Rule 23 held that the statute of limitations the class status at any time after the ini determinations by trial courts.' is tolled from the date of com tial ru ling. The First Alabama court If the court dismisses the case on the mencement of the action until the noted that it did not want to become an merits - whether or not Rule 23(c)(l) date of denial of class certification. advisory panel on certification orders. certification took place - the judgment Finding that this tolling concept Federal courts agree.s is final and may be appealed. Nicholsv. "enhances the policies underlying , Later cases, however, reflect a willing MobileBoard of Realtors,In c., 675 ~'.2d class action," the majority opinion ness on the part of the Alabamacourts 671, 673 (5th Cir. 1982). A dismissal also stated that the ruling helped to not only review certification orders pursuant to settlement approved by the avoid multiplicity of suits. In dis- • CIVIL -mBachus & Associates • CRIMINAL • INSURANCE CASES P R OFESS I ONAL INVESTIGATI ONS S- SERVICE OF P RO CESS ATT ENTIO N ATTORNEYS: Our firm provides investigative services to !he insurance, legal, and corporate secrors. We offer over 15 years of claims and investigative experience. Fee Structure, Insurance Oocumenlallon and Resumes available. Services Include (but nol llmlled to) !he following: Field Investigations • Personal Injury • First & Third Party Liability Railroad Accidents (Including F.E.L. A .) • Traffic Accidents • Witness Location Surveilla nce • Workers Compensation • Property Damage • Insuran ce Claim Investigations For $35.00 per hour (plus expenses) , you can not afford to pass up this service for non-prod uctive investigat ions. For more Information contact: Harry W. Bac hus, Jr. 24-B our Phon .c : P.O. Box 180066 FAX Pho ne: 20S / 649 -S984 Mobile. Alabama 36618·0066 20S / 649-S886 THEALABAMA LAWYER May 1994/ 163 sent, Justice Torbert observed lhe putative class would then have class action for purposes of later inter that the majority opinion would another day after class certification is vention or individual suit by a class only serve lo multiply suits and denied to file their own claims, even member, a person seeking to bring a stale claims. though the statute of limitations had later doss action may001 rely upon the actuallyrun on their claims a year earli White11. Sims, 470 So. 2d 1191, tolling effect of an earlier class suit. 1193(Ala.1985) er - all because of the fortuity of John See, e.g., Salazar-Calderonu. Presidio Againspeaking for the majority, Doe having made a class allegation in Va/leg Farmers Assn. 765 F.2d 1334, Justice Faulkner observed that his own suit. In so doing, John Doe 1351(5th Cir. 1985). extendedby one year the statute of limi the statute of limitationsis tolled NOTICE as to all asserted members of a tations on the claims of the class even though they were not awareof his suit. Rule 23 only requiresnotice for Rule putative class until class certifica 23(b)(3) type class actions and for set, tion is denied, regardless of notice The clock simply stopped ticking when John Doe's class suit was filedand start tlements, regardless of class type (see to those individual members.Fur Rule 23(e). Rule 23 states: thermore, "lwlhen a class action ed ticking again when certification was denied. In any class action maintained is instituted against a class of under subdivision (b)(3), the unnamed defendants. the statute The Alabamadecisions do not offer any guidanceon when the tolling period court shall direct to the members is tolled as lo all putative mem of the class the best notice practi bers of the defendantclass." ceasesand the statute commencesrun ning once again, under other circum cable under Lhe circumstances, Corbit/ u. Mangum, 523 So. 2d stances. Clearly the conclusion of the including individualnotice to all 348 (Ala. 1988) litigation would restart lhe statute of members who can be identified Justice Shom' opinion reiterat limitations, though resjwlirota issues through reasonable effort. The ed the rule of First Baptist and \\'Ouldbe presentedin such a situation. notice shall advise each member While and added a twist - The general proposition in Alabama that (a) the court will excludethe although the statute of limita that it is only the pendencyof an action member from the class if the tions resumes running when cer in a court which has jurisdiction that member so requests by a specific t iflcation Is denied, it will be tolls the statute orlimit ations is pre date; (b) the Judgment. whether tolled again if an amendment is sumablyapplicab le to class actions.See favorable or not, will include all filed seeking to certify a slightly Preer u. Potier, 413 So. 2d 1079 (Ala. members who do not request different class - even though the J982); TerminalRg. u. Mason, 620 So. exclusion; and (c) any member motion to amend was pending 2d 637 (Ala.1993) . who does not request exclusion without ruling for one year. may, if he desires, enter an Ex parte Hll!/es,579 So. 2d 1343 (Ala. appearancethrough counsel. FederalCuu Rule23(c)(2) . 1991) The UnitedStales SupremeCourt has held that, where class certification is While notice is not requiredfor (b}(l) Justice Maddox's majorityopin denied, the statute of limitationsas to and (b)(2) type class actions. Rule 23 ion observedthat, £\e'enwhere the putative class members is tolled from allows the trial judge to order such single, named class representative the time of filingsuit until the denialof notice when, in the judge's discretion, turned out to have been dead certification.Stt AmericanPipe & Con beforethe suit was even flied, and struction Co. u. Utah, 414 U.S. 538, even though class certification 551-53 ( 1974) (tolled where class failed Al•n T, R09en had never been reached, the Alenl Rogers.s a part· to satisfy numeroslty); Crown Cork & ner In the 81rmlngh&m ;tatute of limitationswas tolledby Seo/ Co. u. Parker,462 U.S. 345 (1983). omc.eQt Balch& Bing• the mere asserlion of a class suit, hamend a 1980oradu· This rule has been held to apply even ale ol Tulane Law thus allowing - three years later where a (b)(3)class is sought and, after 5<:llooll1011aamemb« and a~er the statute of limitations 01 lhe state bars of notice, certain members opt out. The LouwNo and Alabama, had run - an intervention of a rules applies to Lhemas well. Eisen v. and on The Ah1bama new class representativeLo move Carlisle & Jocque/in, 417 U.S. 156 Lawyer Board of Edi• the case toward a certification (1974). Note, hoY.·e-oer,that at least one hearing. - federalcou rt has d~lined to followthis These decisionscan be illustrated in tolling rule where the original class Cit1101 I C.. Cook this hypothetical;John Doe,purporting Gt~C C- iSan plaintiffs had failed to satisfy even the usoc,at• in the Silm. to repreunt a class of customers of typicalityo r adequacyof representation ongllam .. ,.,,, al 8a!ch ABC,In c., sues ABCin a class action. & a.ngi.v,, and 4 1991 requirements of Rule 23 and therefore graduate ot Hatv-ard The statute or limitationsruns the day could not serveas class representatives. Llw- after the suit is ftled. Membersof the See In re elscint Lid. Secur. litigation, purported class are never given notice 674 F. Supp.374 (0. Mass.1987). Final of the suit, and certification is denied ly, although the limitations period is one year after suit is filed. The rest of deemed tolled during ihe pendencyof a 164 / May 1994 THEALABAMA LAWYER it is deemed appropriate. Rule 23(d)(2) are at stake, however, "the bal available to individual class members, states; ance swings in favorof some sort the more likeJy that the requirements In the conduct of actions to o( notice."" o( Rules 23(b)(I) and 23(b)(2) will not which this rule applies. the court be met and individual notice under may make appropriate orders ... The courtwent on to state: Rule 2J(b)t3) and Rule 23(c)(2) will be requiring , for the protection of If analyzedIn terms o( what the nquired. One court has said that even the members of the class or oth class members have at stake in certain equitable remedies, if sufficient erwise for the fair conduct of the the different types o( class ly Individualized, could conceivably action, that notice be given in actions, the reason for the differ require notice to individualdass mem such manner as the court may ent notice requirements for the bers: direct to some or all of the mem differenttype classes is obvious - It is conceivable that certain bers of any step in the action, or due process ltsel( requires differ equitable remedies,such as resti of th e proposed extent of the ent notice based on what rights tution, are sufnciently individual judgment, or of the opportunity and obligations are at stake in ral'her than class In nature as to each of the three different class of members to signify whether 11 present the same likelihood o( they consider the representation types. divergent interests and thus the fair and adequate, to intervene In determining whether notice same need for heightened notice. and present claimsor defenses,or should be required in Rule23{b)(l) and as requests for individual, legal otherwise to come into the Rule 23(b)(2) clw actions, courts have relief." action. generally relied upon the degree or c:ohesivenessof the dass and the degree Where a case predominantly seeks The failure to provide proper notice, to which property interests or absent money damages on an individualized when required , can cause the class class members are being adjudicated. basis, individual notice to the class action court not to have jurisdiction These two factors bear direc:tly upon members may be required in order to over Lhosemembers who are not given whether notice is constitutionally satisfy the due process nexus necessary notice. and thus may be a basis for col required for due processand whether or for obtaining Jurisdiction. See Phillips lateral attack upon the judgment in the not the class has been properly labeled Petroleum Co. v. Shutts, 472 U.S. 797, class action, as well as a basis for as a 23(b)(l) or 23(b)(2) class. Rule 8 11-12 (1985). Curre ntly pendi ng appeal. See, e.g .. 7'aylor u. lib erty 23(b)(l) and Rule 23(b)(2)c lasses tend before th e United States Supreme National life Ins. Co.. 462 So. 2d 907 to be more cohesive and thus may not Court Is Ticor Tille Ins. Co. u. Brown, (Ala. 1984) (allowing a collateral attack have internal, conn icting interests." D.K. No. 92-1988, raising various on a class action in which a (b)(2) class For instance, in 23(b)(2) classes, it is issues as to notice and other Rule WM certified). more likelythat judgments obtained by 23(b)(3)protections as to a class action In the Tap/or case, discussing due one member of the class will equally settled under Rule 23(b)(2) without process requirements for the exerciseof affectother members of the class, and it individualnotice. jurisdiction OYerabsent class members, is less likely that there wiII be special the Alabama Supreme Court has writ defenses or issues relating to individu Costs ten: als." Because or this cohesion. it is Generally, the plaintiff is required to When only injunctive and more likel)' that the named representa pay the costs of notice. See Eisen u. declaratory relief are sought in a tives will adequately protect the absent Corli5le& Jacquelin,417 U.S. 156. In class action, "the due process members and everyone will be given (1974). interest of absent members will their functional equivalent of a day in usually be safeguarded by ade court. Type of Notice quate represe ntation alone." The more likely that damages on an The UnitedSta tes Supreme Court has When individual monetary claims individually determined basis will be held that, when notice is required, iden- TELEPHONE FACSIMILE (lOS) JZS-9111 UOS)J26-ZJ16 RichardWilson & Associates ANNA LEE GlAIT INA Registered Professional ATTCIINEY' ME),lllEJt OF AI.All!\MA 8ARSINCE 1981 Court Repo rters Anna L« Otanino. PC. Th< l'l,eo & ~_RfStAJtttt .....• BI,...... IEN'1tmsc ...,_ • \li'...ES1UW ,...... •_ ASS1$TANO! ...... _ ...i_,...... ,,,"""'1.,1-.,N CAS& nE,AtlATION · 264-6433 THE ALABAMALAWY ER May 1994 / 165 ~ ~ l,/\ \\I OJ\'I U.S .i\ · ' .....,,..,·" ""-··.~~·· .....~·· ..... :nd ..\M- " "" ' ..,di• \o """' """""" ' • \M rol• of I•" \n our 11so•, 01v\\ll ut10\\R ~lY \\l\l'lO, 11n•l th• o...,at Se•\ ol \I\O Oo••••••'•0 111.,. •' lh• 5u,t• ea~\\ol In '"" CIIY ol J,!01'\l-rY on tbl• \I\O 1&\h d•Y of febrUJll°'~ • \994 • 166 / May 1994 THE ALABAMALAWYER tifiable class members should be given missalswithout court approval. cable.Van Hom v. Trickey, 840 individual notice, despite the cost that If a settlement is approved by the F.2d604 . 606 (8th Cir.1988). may be involved. See Eisen, 417 U.S.at court and notice provided, the settle 176 ("there is nothing in Rule 23 to ment wiII be res judicata to all class 2. Publication of a proposed set suggest that the notice requirements members (except for those that may tlement was acceptable in can be tailored lo fit the pocketbooksof have opted out via Rule 23(b)(3)).See J. Handschu v. Special Services particular plaintiffs"). Rule 23(c)(2) C. Bradford& Co. v. Calhoun, 612 So. Division,787 F.2d828, 833 (2d requires that all class memberswho can 2d 396, 397-98(A la. 1992). Cir. 1986). be identifiedthrough reasonableeffort 3. Individualmail notice and the be contacted. The normal procedure is Pre-certiAcationSettlement appointment of a guardian ad for the court to require the representa In PhiladelphiaElectric Co. v. Ana !item for any unknown, tive plaintiffs to submit a proposedlist conda American Brass Co., 42 F.R.D. unborn, incompetent or minor of persons to whom notice should be 324, 326-28 (E.D. Pa. 1967), three of members of a class and notice sent and then allow U1e defendant to the 13 defendants in an antitrust class sent to the state attorney gen object or offera counter proposal.IS action settled beforeclass certification. eral for any members of the Typically, such notice is given via The cou.rt held that there must be a class who were charitable ben mail, although other methods have presumption that there was a proper 6 eficiaries complied with due been used.' Individualnotice may also class action, therefore triggering the process. Meyer v. Citizens & be combinedwith other types of notice Rule23(e) requirements.The court fur Sou/hem Nat'/ Bank, 677 F. to assure that class memberswho can the.r noted that its approval of the set Supp. 1196, 1208-09(M .D. Ga. not be identified will be provided the tlement pursuant to Rule23(e) could be 1988). best notice practicable under the cir combined with the consideration of cumstances. Typically, such notice is class certification issues pursuant to In at least one case, the Alabama done through publication, notification Rule 23(c)(l). In the alternative, the Supreme Court was willing lo permit of vendors, etc. If diligent efforts are court stated that it could hold the collateralattack on a classaction settle used to provide notice lo individual approvalof the settlement in abeyance ment where notice was not properly class members, the fact that individuals pendinga determinationof class certifi given to the parties seeking to attack may not receiveactual notice does not cation. ThePhiladelphia Electric proce the settlement, presumablyon the basis cause the class to lose its effect.See J. dures have been adoptedby other feder that the failure to givenotice was juris C. Bradford& Co. o. Calhoun,612 So. al courts.•• dictionalwith respect to the class mem 2d 396, 397-98 (Ala. 1992) ("Failureto bers in question. See Taylorv. Liberty receivenotice of a class action does not Notice National life Ins. Co., 462 So. 2d 907 exempta class memberfrom abidingby Court approvalof a settlement is not (Ala.1984). limitations set forth in a settlement alloweduntil notice has been given to thereof."). the class members (i.e., the hearing on Trial Court's Reviewof Settlement the fairness of the settlement cannot The trial court's function is to assess SETI'LEMENTS occur unti l class members have Whether or not the class has been the settlement under Rule23(e) . Gener certified, there can be no sett lement receivednotice). However, notice of set ally, the trial court will hold a hearing tlement is not requiredwhere (1) class without court approval and notice. Rule on the settlement. One Alabama case certification is denied, (2) the class is 23(e)prov ides: has recently stated that the trial judge (e) Dismissalor Compromise.A dismissed on the merits, or (3) where should give "meaningfuleva luation" to classaction shall not be dismissed the case is dismissedfor lackof jurisdic a proposedset tlement and provide par or compromised without the tion. Remember that, for purposes of ties opposedto the setUement a "mean approval of the court. and notice case dismissal, notice is required for ingful opportunity to be heard al the voluntary dismissals. Note Rule 23's of the proposeddismissal or com fairness hearing." Ex par le liberty language - notice is required "in such National life Ins. Co., __ So. 2d pro mise shall be given to all manner as the court directs." This is a __ , 1993 W.L. 522564 (Ala.). The members of the class in such manner as the court directs. discretionary function of the court, nature of the hearing is determined by there being no single method of notice the circumstances of each case - for The purpose of Rule 23(e) is lo pro requiredunder the Rule. example, most are evidentiary in tect putative class members from Federal courts have generally pre nature, some are not.'9 The trial court unjust settlements or voluntary dis ferred written notice sent by mail to must determine if the settlement is fair missals made because the named class each class member, but examples of and reasonable.See, e.g., Allen u. Alaba· representativeslost interest or fortitude noticesof proposedsettlement include: ma Stale Board of Education. 612 F. or were able to setUe the case to their 1. Flyers posted at a correction Supp. 1046, 1053-55( M.D.Ala. 1985), individual benefit, but not necessarily center giving noticeof a prison vacatedon other grounds,636 F. Supp. lo the bene fit of the class .17 Class ers' classaction settl .ement were 64 (M.0. Ala. 1986).One federal court actions are specificallyexempted from sufficienteven though individu has noted that "such a determination is Rule 4l's provision for voluntary dis- al notice may have been practi- committed to the sound discretion of THEALABAMA LAWYER May1994 / 167 the Lrialjudge. Great weight is accorded and thus injure the class members (e.g.. awards in class actions, particula rly his viewsbecause he ls exposed to the discovery can be used as a threat to where the fees will come out of a com· litigants, and their sLralegies,positions raise costs)." Recently. the Alabama mon fund and diminish class members' and proofs." Ace Neating & Plumbing Supreme Court allowed limited discov recoveries.F'or Instance, in In re Fine Co. u. Crane Co., 453 F.2d 30, 34 (3d ery direcled lowardthe appropriateness PoperAntitrust Llligalion, the district Cir. 1971). The Lrialcourt should sup of settlement. See Ex porle libe rtg court noted, in respOnseto an attor port iLsconclusions in written form to Notionol Life Ins. Co., __ So. 2d ney's fee request that amounted to over aid appellatereview. _., 1993 W.l.. 522564 (Ala.)(grant· 40 percentof the settlement fund lhat: The UnitedStates SupremeCourt has ing a writ of mandamus to lntervenors These fee pelilions are grossly held that the only options for the trial who sought to compel the trial Judge to excess ive on their face and, judge in reviewing a proposed settle rule on their discoverymotions before regrettably,lend substance to the ment are to accept or reject the entire the fairness hearing was held on the widely held and moslly unfavor proposal.To reject or accept portionsof classsettlement). able impressionsof the plaintiffs' the proposedsettlement, or to acti,-ely A trial court's approval of a settle class action bar, sometimes restructure the proposal, are inappro ment, put in the form of a Onalorder, is referred to as the class action priate. Evans u. Jeff D., 475 U.S. 717, appealable. A member or lhe class or industry. 726-27( 1986). putative class who appears arter notice 98 P.R.D.48, 68 (E.D.Pa. 1983). In approvinga settlement, lhe court and objects to the settlement has a must act as a guardian of the rights of right lo appeal from the finaljudgment The typicali!l>Proaches to fees Include the absentee class members. The bur approving the settlement. See Arm lhe commonfund approachof Sprague u. den is on the proponents of the seltle strong u. Board of School Directors, T'iconicNa/'/ Bonk, 307 U.S. 161 (1939) ment to persuade the court that It is 616 F.2d 305 (7th Cir. 1980).However, and the common benefit rule. See, e.g., fair, adequateand reasonable.See, e.g., an appellate court wiLI on Jy intervene Millsu. ElectricAuto-lite Co., 396 U.S. Holmes u. Con/lnenlol Con Co., 706 upon a clear showing that the trial 375, 392-97(1970). Courts have applied F.2d ll44 , 1147 (11th Cir. 1983). court has abused its discretion. In re bolh a percentagemethod and a lodestar Although the adequacy of the settle CorrugatedContainer Antitrust Uliga method (a multiplier based upon the ment is a discretionarydecision based tion, 643 F.2d 195, 207 (5th Cir. 1981). hours worked) to delermine atlorney's up0n the facts of each case, among the If the settlement is not approved,a wril fees,oA:en usin g both to ensure that no most important factors for the court to or mandamus may be sought, but it is attorney'sfee is out of line."' considerare: rarely Issuedby an appellatecourt since the trial court's reviewof a class settle CONCLUSION I. Strength of the plaintiffs' case ment is a discretionaryfunction. See In Class actions are complex proceed versus the amount offeredin set re Trame Executive Ass'n - Eastern ings lhat should be approached cau tlement. R.R., 627 F.2d63 1 (2d Cir. 1980). tiously. Certificationof a class involves 2. The presence of any collusion in much more than a beliefthat there are reaching the selllement AITORNEYS FEES numerous, potential members of a 3. The reaction of class members to Alabamacourts have exercisedclose class. If a classis lo be certified,the due the settlement- after notice. supervision of attorney's fees Loavoid processrights of absent class members, who may not receivenotice, are depen 4. Opinionsof counsel. conflictsof interest developingbetween the class and its attorn eys. See, e.g., dent upon the adequacy of the repre 5. The stage of the proceedingsand Stale v. Brown, 577 So. 2d 1256 (Ala. sentativesand the diligenceof the trial the amount of discoverycomplet 1991) (approving an altorney's fee judge. The identificationof class mem ed. where the circuit court judge did an bers and provid ing notice can be 6. The plan for distribution of the exhaustiveanalysis of the proper factors extraordinarilycomplex and lime con proceeds. in awarding an attorney 's fees); suming. The manageabilityand resolu Lion of class actions can be difncull 7. Whether settlement would waive Regnolds u. First Alabama Bank of because or individual issues of reliance, other viable claims of the class Mon/gomerg, N.A., 4 71 So. 2d 1238 damages and counterclaims. The court members. (Ala. 1985) (reducingattorney's fee in classaction). must be constantly vigilant against 8. Whether proper notice has been The Rule 23(e) requirement of court potentialconflicts of interest within the made.• approvalfor any class action settlemenl class and between the class and its extendsto attorney's feesarrnngeme nts. attorneys. • Courts have sometimes affordedpar This approvalby the court may be simi ties opposedto class action settlements lar in form to a remittitur." Court the opportunity to take limited discov approval is necessary for any award of End.notes ery regarding settlement; however,the attorney's fees. whether by way of set 1. This article. for sin1pllcily,refers 10 plaintiff courts must carefullybalance this need tlement or resolution of the case or class actk>nsrather than defendanl clas.s againsl the danger that wide-opendis· final judgment . Federal courts have actions. For purposesol the dlsc,,salonsIn covery will threaten lhe compromise noted a need for closesuperv ision of fee this arllc le, !here are no disllnctlons 168 / May1994 THEA!ABAMA I.J\\YYER between these type of classes . Presum Practice and Procedure: Civil 2d, § 1796.1 15.See genera/l)'Wlight. Mlller & Kane§ 1786 ably. however. both Alabama and federal p. 334 (heralnaher Wright. MIiier & Kane). p. 200-01. courts would be more likely to scrutinize 7. See, e.g.. Jackson v. CIT. 630 So. 2d 368 16. S•e Manual on Complex Litiga nt. 2nd , lhe due process concerns of bind ing (Ala 1993) (affirming summary judgment § 30.211 ("notice by mail should generally absent defendants as opposed to binding and therefore nol reaching class certiflca· be employed and. Indeed. may be essen absent plIDntiffs. Such a consideration Is tion); Sanders v. Colonial Bank of tial"). See. e.g.. In re Asbestos Schcol Lit/· extremely Important In deciding what type Alabama, 551 So. 2d 1045 n.1 (Ala. 1989) gstlon . 104 F.R.D. 422 . 439 (E.O. Pa. of notice to provide . See infra. (fi nding class cM ifica.tion moot because 1984). 2. Compare Ex parte Blue Cross and Blue summary J\ldgment was proper). 17. See, e.g., 30 Moore's Federa l Practice Shield of Alabama. 582 So. 2d 469 (Ala. 8. See 30 Moore's Federal Practice 123.97 § 23.80 p. 23-478; Wright, MIiier & Kane § 1991) (applying genera l venue provis ions p. 23-565 . 1797 p. 340. In a class aCllon context ): compare. e.g., 9. See, e.g., Ex pa.rte Blue Cross and Blue 18.See Manua l on Comple x Litigation , 2nd, Ala. Code §§ 6-3·2, 6-3-3. 6-3-4, 6-3·5 , 6- Shield. 582 So. 2d 469 (Ala. 1991): Bagley §30 .45; Wright, Miller & Kane§ 1797. 3-6, 6•3-7. v. City of Mobile, 352 So. 2d 1115 (Ala. 19.See, e.g., Calhoun v. Cook, 487 F.2d 680 3. This article uses ' Rule" to refer 10 boih the 1977), (5th Cir. 1973) (reversing a se1tlemen1 Ala R. Clv. P. and the Fed. R. Clv. P. Ala 10. Tay/orv. Ubarty National Uls Ins. Co .. 462 where the trial court did no1 hold an evl· R. Civ. P. 23 and Fed. R. Civ. P. 23 are So. 2d 907, 911 (Ala. 1984), quoting, Not9, dentiary hearing}; ses generally Wright, essentially Identical an d the Alabama Class Act ions: Certification and Notice MIiier & Kane § 1797 al 354-55 (listin g courts have stated thal federal precedenl R•quirements. 68 Geo. L.J. 1009, 1028 cases with and without evldentiary hear is persuasive authority tor Alabama p THEALABAMA LAWYER May 1994/ 169 DISCIPLINARYREPORT Tr•nsfer to OlublUty 20 of the Rules of Disciplinary Proce make restituHon to Client A in the ln•ctlve s .. tus dure. On September20, 1993,Jones was amount of $1,000an d to Client B In the • Birmingham attorney D. Michael convicted of extortion In the United amount of $253. On June )9, 1990, Sawyer has voluntarily transferred to States District Court for the Northern Smith was retained by Client A to disability inactive status pursuant to District of Alabama, Southern Division. defend the client in a suit lo collect an Rule27 , Rulesor Disciplina,yProcedure The respondent attorney has failed or indebtedness for goods sold and deliv (Interim),February 2, 1994. refusedlo communicatein any waycon ered to Client A. Client A had filed an cerning the disciplinarymatters which answer pro se in the litigation denying Dlsnrment are curre ntly pending against him. the indebtedness prior to retain ing •By order o( the Supreme Court or (Rule 20(a) Pet #93-0061 Smith. On June 20, 1990, Client A paid Alabama,attorney Edward Lewis Hohn Smith Sl,000 for representing him in was disbarredfrom the practiceor lawin Public Reprimands the litigation. He also informed Smith lhe Stale or Alabamaeffective January •On January 28, 1994, Eufaulaattor that the casewould be tried on June 27, 24, 1994.Hohn's disbarmentwas based ney Christie C. Pappaswas publiclyrep 1990. On that dale, Smith failed to upon reciprocal discipline administered rimanded without general publication attend the trial and a judgment was by the Alabama State Bar. The recipro· by the Alabama State Bar. A collections taken against Client A in the amount or cal discipline was based upon Hohn's claim was forwarded to Pappasby a col $16,767.Smith filed a motion to vacate disbarmentby the Stale Bar of Arizona. lections group. The collections group on September 26, 1990, which was Hohn consented to disbarment in Ari specificallydirected that Pappasnot file denied on October25, 1990, and a Rule zona based.in part, on his convictionin suit or incur additional expensesin the 60(b) motion on November 20, 1990. federalcourt on muJliple counts or mail matter without express authorization This motion was denied after a hearing fraud, false statements and false claims from the collectionsgroup. Contrary to on June 16. 1991. In violationor variousp rovisionsor Title these instructions, Pappas initiated suit In another matter, In late 1990, Smith 18, United States Code. (Rule25{a ) Pel on the claim. In the interim, the collec Wa$ retained by Client B for a fee or No.93-01) tion group's clients had receiveddirect S350lo represent her in a custodymat payment from the debtor in question. ter. On December 5. 1990, Smith filed Suspensions Pappas even went so far as to issue a on behalf of Client B an answer and •Attorney Kevin Michael Manning has garnishment against the debtor in ques cross-complaint requesting temporary been suspended from the practice of law tion. The debtor then contacted the visitation rights and permanent rights in the State or Alabamafor a period of creditor complaining that his bank upon final hearing. The petition and three years effectiveJanuary 5, 1994.In account bad been frozen. Upon being cross-complaintwere set for hearing in addition to being licensed to practice informed or these facts by his clieni, Ceneva County on February l, 1991. law in the State or Alabama, Manning Pappas slated that he was not going lo Smith did not appear at this hearing, was also licensed lo practice law in the release the garnishment until his fee thus necessitating its being reset for Stale or Texas.A default judgment was had been paid. The client demanded that April 30. 1991. On that date, neither taken against Manning in a disciplinary Pappas release the garnishment which Smith nor Client B appeared , thus proceeding brought by the TexasState be refusedto do. necessitatingthe caseto once again be Bar. On January 29, 1993, an order was Pappas was found to have violated reset on June 4, 1991.On that date. nei entered by the District Court of Travis three separatep rovisionsor the Alabama ther Smit h nor Client B appeared. County, Texass uspending Manning for a Rules of Professional Conduct, specifi Sometime thereafter. Smith worked out period or three years from the practice cally, Rule J.2 (a), in that he failed lo a settlement agreement whereby Client or law in the State of Texas. Reciprocal abide by his client's decisionconcerning B's ex-husbandr eceivedpermanent cus discipline was imposedon Manning by the objectives of his representation, tody of their son. The ex-husband's the AlabamaState Bar pursuant lo Rule Rule L4 {a).in that he failedto keep his lawyer drafted an order in accordance 25(il)of the Rules or Disciplinary Proce client reasonably informed about the with the agreement and submitted it to dure (Interim) or the Alabama State Bar status or a matter. and Rule 8.4 (g), in Smith by letter dated June 24, 1991. suspending Manning for a period of that his actions constituted conduct Smith did not respondto this letter and three years. [Rule25(il) Pet #92-0021 that adverselyreflects on his fitness to a final order was entered July 9. 1991. practicelaw. (ASSNo. 93-261 Client B states that she did not autho •On October 27, 1993, Gregory I rize Smith to enter into an ag.reement ~yne Jonu was temporarilysuspend •J ack WIimar Smith , a Dothan whereby she would lose custo HOUSINGDEAOLINE : JULY6 • ADVANCEREGISTRATION DEADLI NE: JULY14 NON-MEMBERSWELCOME! CAll 312/988-S870 TODAY! THE ALABAMALAWYE R May1994 / 171 ! " S::====~:::::::i~ ~ ~ -~---.; ;i...-iii;_.iii::::::liiii c::::- ~ July 18-21, 1994 PerdidoBeach Resort · Orange Beach,Alabama 172 / May 1994 THEALABAMA LAWYER (Continuedfrom page 170) coming in a short period of time. Sub were administered for alternative viola· son. In Smith's response, he stated he sequently, Barrett informed the client tions or both the Code of Professional did not attend the hearings because it that there were some problems in ResPQnsibilityand the AlabamaRules of was anticipated that Client B's son obtaining the settlement proceeds due ProfessionalConduct, specificallyas fol would testify that he wanted to remain to the fact that the insurance company lows:A labama Rule of ProfessionalCon with his father. had been placed in receivership. duct : Rules 1.1, 1.3, 1.4(a), 8.4 (a), The Disciplinary Commission, on The client experienced substantial 8.4(g), 8.4(c),& 8.4 (d). November 5, 1993, accepted Smith 's difficulty in communicating with Bar Alabama Code of Professional conditional guilty plea to formal rett about the status of the case. The Responsibility:Disciplinary Rules 6-101 charges filed as a result of his represen client eventually contacted the insur (A), 7-101 (A) (1), 7-101 (A) (3), 9-102 tation of clients A and B. The Commis ance commissioner's office in the state (B) (1), (l)-102(A) (1), 7-102(A)(8) , l- sion also accepted Smith's conditional where the insurance company was 106(A)(6), l-l02(A) (4), & l-102(A) (5). guilty plea for failing to purchase a located and was informed that Barrett [ASBNo. 91-9111 • license to practice law from October J, had not even filed a claim on the 1991 to August 9, 1992 and from Octo client's behalf contrary to Barrett 's ber 1, 1992 until April 8, 1993. As a prior representations. The client was result of the conditional guilty plea, the also informed that his claim was now Commission found that Smith failed to barred as the claims period against the seek the lawful objectives of his client, insurance company had passed. failed to carry out a contract of employ The client contacted Barrett to dis ment for legal services, and damaged cuss the matter without disclosing the his client during representation in vio information the client had learned from ~ li Ht~,~~f!<:P~C?.CH lation of DisciplinaryRules 7-JOl{A)(l) the insurance commissioner's office. S1und-U1,Desks• Re,·oMng l.lookcases (2) and (3) of the Code of Professional Barrett again misrepresented to the Extcuth·e Desk$• FileCa binels Responsibility. The Commission also client that the settlement proceeds TnbleDesks • Stackable Bookrases found that Smith neglected a legal mat would be forthcoming. The c.lient sub SolidHnnhrood f"urnit ure sequently filed a complaint against Bar at Factory Prices ter entrusted to him and that his con CALLTOLL FREE 1-800 -838-9494 duct adverselyreflected on his fitness to rett. The investigation of the complaint TAL.B ox5n.S,l,mull.AL36li6 practice law in violation of Disciplinary disclosed that Barrett had prior knowl Rules 6-IOl(A) and l-102(AJ(6). edge of the insurance company being With respect to Client B, the Com place in receivership, and, in fact, had mission found that Smith willfully filed claims on behalf of another client neglected a legal matter entrusted to against this same insurance company FORENSIC him in violation of Rule 1.3, failed to prior to the expiration of the claims ANIMATION keep his client reasonably informed in barred deadline. violation of Rule 1.4, and failed to pro Barrett tendered a guilty plea to for vide competent representation in viola mal charges admitting that he had will ACCIDENT tion of Rule 1.1. The Commission also fully neglected a legal matter entrusted found that Smith failed to resPQndto a to him; failed to seek the lawful objec RE-CREATION demand for information by a disci tives of his client; prejudiced or dam plinary authority and that his conduct aged his client during the course of the adverse ly renected on his fitnes.s to professional relationship; failed to keep Add force to your presentation practice law in violation of Rules 8.1 his client reasonably informed about of complex case issues. and 8.4. The Commission also found the status of his case; failed to promptly Make your case easier to that Smith violated Rule 5.5 in that he visualize, while saving notify his client about the receipt or time and money. engaged in the practice of law without a funds; knowinglyviolated or attempted license. IASB Nos. 90-693, 92-119(A) to violate the Rules of ProfessionalCon Let us show you how your practice and 93-1161 duct; engaged in conduct contrary to a can ajfordably make use of the high disciplinary rule; engaged in conduct •On January 28, 1994, a public repri quality computer graphics th.at, until mand with general publication was involvingdishonesty, fraud, deceit, mis now, have only been available 10 issued to Birmingham lawyer Dennis representation or willful misconduct; multi-milliondo llar law firms. MichaelBarrett. Barrett was retained by and engaged in conduct prejudicial to a client concern ing claims the client the administration of justice, all or for more informa1ionplease call: had arising out of an automobile acci which adversely reflected on his fitness (205) 593-7789 to practice law. Due to the fact that Bar dent Barrett subsequently represented Design Tee to the client that he had obtained a set rett's misconduct occurred during the COMPUT ER AIDED GRAPHIC DESIGN tlement on behalf of the client and that transition from the Disciplinary Rules 255 Celia SI. • Boaz, Al 35957 the settlement proceeds would be forth- to the Rules of Professional Conduct, the guilty plea and public reprimand THE ALABAMALAWYER May1994 / 173 ABOUTMEMBERS, AMO NG FIRMS ABOUT MEMBERS Stop HQ034, liuntsville, Alabama 1044 Park Place Tower, Birmingham, 35894-0001.Phone (205) 730-2032. Alabama35203. Phone (205)324 -9494. Kathy Peny BrasOeld announcesher Lange, Simpson, Robinson & L)IOm,Pipes & Cook announcesthat appointmentas deputyattorney general. Somerville announces that John B. ClaudeD. Booneand KennethA. Nixon Department of Human Resources. Her Tally, Jr. has become associated with have joined the firm. Officesa re located officeis located at the Gordon Persons the firm. Officesare locatedat 41120th al 2 N. Royal Street, Mobile, Alabama Building.Room 2122, 50 RipleyStreet. Street. North, Suite 1700. Birmingham, 36602.Phone (205)432-4481. Montgomery. Alabama 36130. Phone Alabama35203 -3272. Phone (205) 250· Rodenhauser & O'Dell announces (205)2 42-9330. 5000. the relocationof its officesto 125 Jeffer John M. Crttn , previouslyof counsel Corhun, Stew:i.rt, Kendrick, Bryant son Street, Huntsville,Alabama 3580 I. to Blackard, Pitts & Murphy in Brent & Battle announcesthat Leslie Klul.ng Phone (205)536-9626 . wood, Tennessee, has become a sole has become associated with the firm. practitioner. Greenis a 1987admittee to Klasing is a former clerk to Judge Alexander , Corder & Plunk the AlabamaState Bar. Hisoffice is locat Joseph Phelps in the Circuit Court of announces that Robert M. Baker has ed at 511 Enon Springs East, Six Hamil Alabama,M ontgomeryCounty. joined the firm as a partne r and B. ton Place, Smyrna, Tennessee 37167. Scott Shipman as an associate. The The mailing address is P.O. Box 467, Tanner & Culn announces that Bert firm's new name is Alexander, Corder, Smyrna37167. Phone (6 15) 459-6189. M . Guy has become a shareholder. Plunk & Baur . Officesue located at Offices are located at 2711 University 213 S. JeffersonStreet. Athens,Alabama Julie A. Palmer announces the open• Boulevard, Tuscaloosa, Alabama 35401. 35611. The mailingaddr ess is P. 0. Box ing of her office at 2162 Highway3 1, The mailing addressis P.O.Box 032206. 809. Athens 3561l. Phone (205) 232· South. Pelham. Alabama35 124. Phone Tuscaloosa.Phone (205)349-4300. 1130. (205)987-2988. Potts & Youngannoun ces that Mark Gorham & Waldrep announces that Charl es E. King announces his A. Sanderson, former assistant district Victoria Franklin Sisson has become appointment as assistant trustee and attorney or ColbertCounty. has become associatedwith finn. Officesare located general counsel for the office oi the associated with the firm. Offices are at 2101 6th Avenue,North, Suite 700, Chapter 13 Standing Trustee for the located at 107 E. College Street, Flo Birmingham, Alabama 35203. Phone Northern Districtof Alabama, Southern rence , Alabama 35630. Phone (205) (205)254-3216. Divisionof the U.S. BankruptcyCourL 764-7142. His office is located at 505 N. 20th Donald W. Stewart and Susanna B. Street, Financial Center, Birmingham, John A. Owens and Susie T. Carver, Smith, formerly of Stewart & Smith, Alabama 35203. The mailing address is formerly partners of Phelps, Owens, and Cary P. Cody, formerly of Long P.O. Box 371008, Birmingham 35237· Jenkins, Gibson & Fowler, announce shore. Evans & Longshore, announce 1008.Phone(205}323-4631. the formation of Owens & Canoer. the formation of Stewart, Cody & Officesare located at 2720 6th Street, Smith . Offices are located at 1131 Betty Martin Harrison announcesth e Suite 3, Tuscaloosa, Alabama 35401. Leighton Avenue, Anniston, Alabama opening of her office at Highway195, Phone(205) 750 -0750. 36201.The mailing address is P.O. Box Double Springs, Alabama 35553. The 2274,Anniston 36202. Phone (205)237- Sheffield. Sheffield, Sheffield & mailingaddress is P.O. Box 339, Double 931l . Officesare also located in Birm Springs. Phone (205)489 -8118. Lentine announce the relocation of its inghamand Tuscaloosa. offices and opening of an additional J. Tim C~le, formerlyof Burr & For office.The new addressis Frank Nelson Ctorge L. Beck, Jr. announces that man, announces the opening of his Building, 205 20th Street, North, Suite W. Terry Travis has become a member officeat 13054lh Avenue.So uth, Birm 323, Birmingham, Alabama 35203. of the !inn and the firm name has been ingham, Alabama35233. Phone (205) Phone (205) 328-1365.The new offices changed to Beck & Travis. Offices 458-5007. are locatedal 2976 Highway3 1, South, remain at 22 Scott Street, Montgomery, Suite A,Pelha m, Alabama 35124. Phone Alabama 36103-50 19. The mail ing AMONG FIRMS (205) 663-7800. address is P.O. Box5019, Montgomery. Phone(205) 832-4878. David Vance Lucas announces his Crittenden & Associatu announces appointmentas staff attorney for Inter that Cina M. MIiier has joined the nrm Edgar C. Cent.le, m announces that graph Corporalion. The address is Mal I as an associate. Officesare located al Deborah A. Picken, . rormer ly with 174 / Ma>•1994 THEALABAMA LAWYER Spain, Gillon, Crooms, Blan & Nettles, that John N. Bolus and J. Kris Lowry, has joined the firm. Carolyn Landonhas formerlyassociates with the firm, have become a member of the firm and the becomemembers, R obert R. Sexton has new name is CenUe, Pickens & Landon. become a shareholder, and John Q. C hild Supp ort Sofhv :>re Officesremain at Colonial Bank Build· Somerville , Mellssa N. Ridgeway, ing, 1928 First Avenue, North, Suite Wllll•m B. Wahlbelm, Jr. and Scott A. or Cnsoin fomrntioncan be $aved & 1500, Birmingham, Alabama 35203. Abney have become associates. Offices n:lr l,w THEALABAMA LAWYER May1994/ 175 AN INTRODUCTION TO THE AI,ARAMA WATER RESOURCES ACT By:Willi am S. Cox, Ill Introdu c tion issues within the Slate of Ala.bama. Section Ill outlines the On February23, 1993.the Slate of Alabamajoined the grow· Act's significant provisions. Finally,Section IV considersthe ing number or Eastern states that haveenacted some form of potential impact of the Act upon future water resourceman water resource managementlegislation. Although the Alaba· agementdecisions within Alabama. ma legislationrecognizes that "(t]he use or (the waters of the state) should be conservedand managedto enable the people Histo rical back ground or IAlabamalto realize the full beneficial use thereofand to Like most states east of the MississippiRiver , the Slate of maintain such water resources for use in the future,"1the Alabamatraditionally followedthe common law of riparian AlabamaWater ResourcesAct 1 (the "Act")is not intended to rights to resolvewater rights disputes.Over time, Alabama's "change or modify existing common or statutory la,v with law or riparian rights evolvedto renect changesin the state's respectto the rights or existingo r future riparianow ners con economy and to adjust to modifications In the uses of the cerning the use or the waters of the state."3 Undercertain cir· waters of the stale.J The AlabamaSupreme Court expressed cumstances,however, the Act requiresmore than the registra· the generalrule of riparianrights as follows: Lion of existingwater uses. Everyriparian proprietor has an equal right to have lat The Act contains elements common to both regulatory and stream flow through his lands in its natural state, with registration or use-typewater resourcemanagement schemes. out mat.erial diminution In quantity or alteration In Thishybrid version of "regulatedriparianism"' recognizes that quality.But this rule is qualifiedby the limitation... evenwithin the state's ownborders , waler resourceissues and that each of said proprietorsare entitled to a reasonable problems may vary, demanding different and nexible solu use or the waterfor domestic,agric ultural, and manufac tions. As a result, the Act allows unique approaches to the turing purposes.I varietyor water resourceissues that mayface the state and it.s citizens. In Crommelin,a lowerriparian (Crommelin) sued to enjoin This article examinesthe Act.Section U of this article pro an upper riparian (l'ain) from using a shared stream, alleging videssome background information regardingw ater resource that such use would interfere with Crommelin'suse or the 176 / May 1994 THEALABAMA LAWYER water for a public swimming and recreation facility.' The Departmentof Economicand Community Affairs and must be AlabamaSupreme Court disagreed.' The court found that as a "person knowledgeablein the fieldsof water resource man riparian owners both parties had certain rights to the use of agement, development,and conservation" and a "state merit the waters in the stream, that Pain's use of the water was for systememployee ."" "domesticpurposes, " and that the amount of Fain's use was The Actalso establishedthe Alabama WaterResources Com "reasonable" even if it meant that Crommelin's supply of water mission("AWRC") which acts as an advisoron matters relating was reduced.•In a fewshort paragraphs,the AlabamaSupreme to the waters of the state; develops, promulgates, adopts, and Court successfullydemonstrated one of the basic weaknesses repeals the rules and regulations authorized by the Act;and of the riparian rights system:the lackof certainty. In that case, hears appeals of administrative actions of the OWR.'• To Crommelin used the entire stream for a number of yearswith ensure diverserep resentationon the AWRC,the Act containsa out any competition from upper riparian owners. ~e neverthe complex appointment scheme for the AWRC's19 members. less was forced to share the stream and possibly to diminish The Governor(n ine appointments), the LieutenantGovernor his own water use once another riparian landowner began (five appointments). and the Speaker of the House (five exercisinghis rights to the flowof water in the stream. appointments)are the appointingauthorities." The uncertainty inherent in the riparian rights doctrine The Governorappoints one member from each of Alabama's takes on additional significancewithin the State of Alabama seven Congressional districts, with at least one, but no more because of the state's inherent dependenceupon surrounding than two, of such members from each "Surface Water states for a great deal of its surfacewater supply. The State of Region."20The Lieutenant Governor and the Speaker of the Alabamahas five major river systems. Only one of these sys Houseeach have an "at-large" appointment." The remaining tems originates within Alabama; the remaining rivers origi ten membersof the AlabamaWater Resources Commiss ion are nate in or flowfrom other states.lo As a result, water resources to be appointedby the designatedappointing author ities from decisionsin other states may have a significant impact on the lists submitted by various water-related interests." The ten amow11 and quality of water available within the State of remaining members are selected from lists of five candidates Alabama.11 The Act allows the State of Alabama to confront submitted by (a) an organization representing a majority of both the uncertainties of the traditional riparian doctrine and the rural water systems in the state; (b) a statewide organiza the potentialthreats from interstatewater rights conflicts. tion representing soil and ,vater conservationdistricts in the Alabama Wat .er Resources Act Prior to the enactment of the AlabamaWater Resources Act, the State of Alabama lacked a statewide agency or office WESAVE YOUR chargedwith the managementof quantitative water resources within the state. The State of Alabama did not require water TIME . .. users to report existing or potentialwater usesand as a result, the state had little, if any, ability to forecastexis ting and future ~arneJI Now legal research assistance water demands. The provisionsof the Act may be divided into is availablewhen you need it. two categories: (1) the establishment of an Officeof Water L E G A L without the necessityor Resourcesand an advisorycomm ission. and (2) the initiation adding a full-time associateor Research of a water resourcesmanagement program within the State of clerk. Alabama. Withacce ss to the Stu1eLaw Libraryand Westlaw.we A. Office of Water Resources and Alabama provide fas, and crricieniservice . For deadtine work.we Water Resources Commission can deliver informa11on to you via comn1oncarrier. Section 5 of the Act created the Officeof Water Resources FedernlExp ress. or FAX. ("OWR")as a divisionof the Alabama Departmentof Economic and Community Affairs.12 Section 6 enumerates the powers Farnell Legal Research examines the issues thoroughly and duties of this office. The OWRm ay develop long-term throughqua lity research. brier writing and analysis. strategic plans for the use of the waters of the stale; imple ment water resource programs and projects for the coordina Our rates are $35.00 per hour. whh a threehour tion, conservation. development, management, use, and minimum. understandingof the waters of U1estate; and monitor, coordi nate, and managethe waters of the state.13 The OWRmay also For Research Assistance contac t: initiate civilactions against persons violating the provisionsof Sar ah Kathryn Farnell the Act and issue administrativeorders assessingcivil penal 112 Moore Building ties against violators." Finally,the Act designatesthe OWRas Montgomery, AL36104 the state's representativei n the negotiationof interstate water compacts.15 Call (205) 277-7937 The Actr equiresthat the Officeof WaterResources be under the direction, supervisionand control of a "divisionchief."" foe ,ep THEALABAMA LAWYER May 1994/ 177 state; (c) an urban publicwater system using 90 milliongallons al least 15 serviceconnections or regularlyserve an averageof of wateror more per day on an averagedaily bas is; (d) an orga al least 25 individualsal least 60 days out of the year are sub nization representing large, self-supplied water users; (e) an ject to the Act's provisions."Second, self-supplied water users organization representing environmental. conservation, or of 100,000gallons or more on any day from either surfaceor water-relatedrecreation interests; (f) an organizationrepresent ground water are subject to the Acl.2$Third. large irrigators ing a majorityof urban publicwater systems using less than 90 who have the capacityto use 100,000 gallonsor more of water milliongallons of waterper day from Lhewaters of the stale; (g) on any day for purposesof irrigation are required Locomply an or!l,lnizalion representingcom mercial navigationinterests; with the AcL26 In addition to these three categories, the Act and (h) an. organizationrepresenting large irrigators.n allows the AlabamaWater Resources Commission to bring other water users within the scope of the Act where the Com 8 . Declar•flons of Nneficlal uH, mission determines that such action "is necessaryto accom· certiflc•te• of use, crltlc•I use lffudles, plish Lhepurposes of this act."" •nd cap•clty stress •reas In addition to the specific categoriesof water users subject The administration,imp lementationand enforcementof the to the Act, the Act explicitlyexcludes certain types of water Act are dependent upon the answer lo four key questions_ use. Impoundmentsor other similar structures confinedand Pirst, what uses of water are subject to the Act?Second, how retained completelyupon the propertyof a personwhich store do those entities complywith the Act?Third. what are "critical water where the initial diversion,withdrawal, or consumption use studies"?Fourth. what is a "capacitystress area"? of such water is subject to the Act are exemptfrom the Act." Waste water treatment ponds and waste water treatment I. Who is subject to the Act'.fprovisions? impoundmentssubject to regulationunder the FederalWater There are three categoriesof water users that are subject lo Pollution Control Act, 33 U.S.C.§§ 1251 el seq.. and ponds the Act First. "Public Water Systems"providing piped water and impoundments subject to regulationunder the MineSafe . to the public for human consumption or other uses that have ty and Health Act, 30 U.S.C. §§ 801 el seq. or the SurfaceMin- Proposed International Law Section The AlabllrnaStale 8aJ'has ll'npanalada task forceto surveythe interest among its membenl to create an lntamallOnalLaw Section.111W 1lllik force Is lftvlllng commentsand suggesdons hom membersof the bar to help dellne the ~ of the pit,pOllait811Ction. The purpose of the lntemallonalLa w Sectionis to supportand promotethe as~ lssU• of lntematlonallaw that are of IncreasingImportance In our state. Areas of practicethat wlll be served.by 1h18118C1JonInclude : • Admltattylaw • Humanrfghls law • Immigrationand nationalitylaW • lntemalionatlaW 811d tniiiilles • lntama11onaltrade and CUSIOfflllaw Hyou are h"81:8118dIn fQrmlng lhfl eectlon, plaa&acomplete and mall the registrationform below . I ------~----~------I Name I I Address l City ZIP l Phone# ReturnII to: l-- ~~~~.:a:-~:~:::~.::.-~:::::~-:::~~ao:~~:_~:~:___J 178/ May 1994 THEALABAMA LAWYER ing ControlAct , 30 U.S.C.§§ 1201 et seq., are also excluded." Equipped with this "beneficial use" information from each Surface impoundmentsconstituting solid waste management major water user in a river basin, the OWRwill be able to units under the ResourceConservation and Recove.ry Act, 42 assess the impact on existing water uses of proposed water U.S.C.§§ 6901 et seq., are not subject to the Act."' In-stream projects, particularly those water uses involving the loss of uses of water, such as recreation, navigationand hydropower large quantities of water through interbasindiversions or con· generation, and impoundmentscovering less than 100 acres sumptive uses. This information may also help resolve dis in surface area and used solely for recreational purposes are putes over water rights on an intrastate and interstate basis, beyondthe scopeof the Act." because the OWRmay be able, through negotiationor other wise, to prevent water resource decisionstha t have a signifi· 2. How do persons comply with the Act? cant impact on current water uses. To complywith the Act,the enumeratedwater users submit If the Declaration of BeneficialUse contains the necessary a "Declaration of Beneficial Use" to the Office of Water information, the Officeof Water Resources must issue a "Cer Resources in accordancewith a schedule established by the tificate of Use"to such person. The Officeof Water Resources Act.:n Declarations of Beneficial Use are written documents, does not haveany discretion in its decisionto issue or to deny signed and certifiedby, or on behalf of, the person subject to a Certificateof Use. The issuanceof the Certificateis simplya the Act's provisions.33The Declaration of BeneficialUse is ministerial act.37 Moreover, the only condition placed upon required to include (i) the name of the person;(ii) the source Certificatesof Use is a reporting requirement. Persons who or sources of the waters of the state subject to such person's obtain Certificatesof Usesubm it annual reports indicating the beneficial use; (iii) the estimated quantity, in gallons, of the amount of water, in galI ons, diverted, withdrawnor consumed waters of the state used on an annual averagedaily basis and on a monthly basis." the estimated capacity, in gallons, of the waters of the state potentiallydiverted, withdrawn or consumedon any givenday 3. What are "Critical Use Studies "? by such person;and (iv) a statement of facts establishingthat "Critical UseStudies " perform the planningand water man· the use of such waters constitutes a beneficialuse." The Act agement aspects of the Act. Underthe Act, the term "Critical defines"beneficial use" as "ltfhe diversion,withdrawal, or con• UseStudy" refers to an analysisof the availablesupply of water sumption of the waters of the state in such quantity as is nec resourceswith in an area of the state and an assessmentof the essary for economicand efficientutilization consistent with existing and reasonably foreseeablef uture demand for such the interests of this state."35 In addition, the Declarationof resources." A Critical UseStudy should permit state, regional Beneficial Usem ust establish that a person's use of water will and local planners to identify immediatean d potential prob- not interferewith any existinglegal use of such water.36 The four items in a Declarationof BeneficialUse are impor tant for the purposes of the Act. Information regarding the ALABAMA W0RKERSCGMPENSA;T[GN ' source or sources of water allows the OWRto identifythose PRACTICB.BiuOlC, 1994 EDlTJON sources of water that servicea number of differentuses. The by OWRmay preparewater use models of the varioussurface and JohnJ. Coleman, ill &W.i.lliamP. Cobb,TI ground water resources from this information. In low flow BALCH& BINGHAM periods affecting' 'high use" water sources, such information will permit the OWRto address c-0nnictsdue to water short ALLJ'ROCBEDSBENEFIT THE Js:ID'S CRANCE ages by identifying the various water users. The OWRmay SCHOLARSHIPFUND facilitateefforts by such water users to reach potential solu· tions to such problems. In addition, the OWRmay be able to To order, plea!le send name, add~es,,and phone nu.mbei: encourage certain water users obtaining water from a ''high ~ $63.95 (indludeoohipping/lumdling) to : use" source to developalternative sources of water or to use water more efficiently. K;d', ChanooSoholar:shlp Fund Information regarding current water use and water use Alal,ama LawFoundation capacity allows the OWRto accomplish its water resource P.O. Box671 planning function. Such information permits the OWRto develop current water use estimates, i.e., the existingdeman d Montgomery,ALJ,,m• 3610 l for water within the state. By knowinghow much water each person subject to the Act may withdraw in the future, the Please .Jlow tix W THEAL ABAMALAWYER May1994/ 179 lems and formulate plans to address those problems in areas the OWRhas no powerto implementany portion of a Critical where the current or future demand for water is found to Use Study. Implementationis solely the responsibilityof the exceed the availablesupply. AWRCthrough its rulemakingpowers." UnderSection 22 of LheAct, the divisionchief notifies the The AWRCreviews each CriticalUse Study completedby the AWRCof those areas of the state for which the OWRwill con OWRand determines if the implementation or water use duct a Critical UseSt udy.'° The Act permitslhe scopeof a Crit restrictions is necessary within the study area." lf the Com ical Use Study to vary. Some studies may be limited to a mission finds the aggregateexisting or reasonablyforeseeable municipalityor a single county while other studies may look usesof water in the study area exceedor will exceedavailabili at a group of counties or an entire ri,-er basin." Regardlessof ty and further finds that water use restrictions are required. the scope of the study, each Critical Use Study must analyze the Commissionmay designarethe study area as a "Capacity reasonable alternatives to address the quantitative water Stress Area."41 The designation of a Capacity Stress Area resourceproblems identified during the study. At a minimum, requires the concurrence of 13 of the 19 voling members of a Critical Use Study will address a "no-action alternative, a the Alabama WaterResources Commission." conservation alternative.a water resourcesdevelopment alter native.and a restrictiveuse alternative.''" Duringeach Critical 4 . What is • "Capacity Stress ANlt"? UseStudy. the Officeof WaterResources must consult with all A "CapacityStress Area" is an area where the AWRCspecifi persons holding Certificatesof Usewithin the study area and cally determines the use of the waters of the state, whether all federal, state and local government agencies prior to the ground water. surface water or both, requires coordination, completion of the study." The Officeof Water Resources is management,and regulation for the protection of the inter also requiredto prepare a draft of the study, including its pro ests and rights of the people or the state.I<>Th e AWRCmay des posed recommendations to the AWRC, to solicit comments ignate a CapacityStress Areaso nly after the OWRp erforms a from all persons or entities within the study area, and to con CriticalUse Study in accordancewith Section22 of the AcLS1 duct a public hearing within the study area on the draft Designationof a CapacityStress Area permits implementa study." tion of actions recommendedby the OWRIn its finalnport for Aftercompleting a study, the Officeof WarerResources sub the CriticalUse Study or such other action as the Commission mits a report to the AWRCrecommending those actions deter determines to be reasonablynecessary to protect the interests mined during the study processto be necessarylo protect the of the peopleof the state.: UNTIL1'.Dw, TITLE CQ'v1PANIES WERE ABOUT PS EASY1D COMPARE. Theseda ys.a loco f titlecompanies clo.im 10 be linunciallysound . IJuttoo ofren. wbru lhcy promote 01'e isolatedratios an d sln1i.1icsthat are not n truemeasure of financials tl't'nglh. Infoci. they :lr'C often mis l ending. Al MississippiVnlleyTi~e. we saw die need for Sll1lldatdiudcblms -poying-abilityrnrin~ for title insurers. Thal'swhy "c Ned to be raledby St:md:trd& Poor"s. We "=gi,'CIIan /\+ - thehighcsl rating fromS&P in the titleindustry 10 date- alongwith ouraffiliate and ro underwriter,Old RepublicNational TIiie In surance Company, whoreceived MA + ratingfor tl 1e second year inn row. Asknoolhcr title oomp;wy for cbeir ruling from St111dard & Poor"s. lfthcy don·1ha,"eone, ask why. Thencill MississippiValley Title. ._ • • • • MISSISSIPPI VALLEY TITLE ' . • • INSURANCE COMPANY • • 315T ombi~ Street.P.O . Bo~2428 Jackson,MS 39225-2428 (601) 969-0222(800) 647-2124(AI.IMSffN) 180/ May1994 THEALABAMA LAWYER dures Act.Ala. Code§§ 41-22-1et seq.53 Upon the designation and consumptive uses within Alabamaand neighboringstates of a CapacityStress Area, the Act further requires the Com forced Alabamato developa program to facilitate some form~ mission to implementappropriate conditions or limitationson of water resource management. The Act was the result of a all Certificatesof Use within the area." Such rules or regula substantial effortby a number of diverseinterests , each recog tions must be approvedby 13 of the 19 members of the Com nizing that somethingwas needed. mission."' Any conditions must also be limited to matters nec Whether the Act will be a success may not be known for essary for the protection of the beneficialuse of the waters of some time. What is clear, however, is that the uncertainty of the state.56Finally, the Commissionis required to reviewany the riparian rights system should be diminished, because the conditionson at least an annual basis.s' State of Alabama now has some ability to develop plans and Under Section 24 of the Act, the implementation of any programs to address existing and potential water resource rules or regulations limiting or reducing the quantity of water problems. The potential threat from increased water use in available to a person holding a Certificate of Use, and the neighboringstates makes it likely that the initial Critical Use implementation and enforcement of such rules and regula Studies will be performedon those rivers entering the state. If tions are vested in the AlabamaDepartment of Environmental such studies find that one or more areas should be designated Management ("ADEM"),M Once.water use restrictions are. CapacityStress Are.as, the OWRmay try, through either nego imposed, a Certificateof Use will be similar to other discre tiation or otherwise, to influence water resource decisions in tionary environmental permits, because the issuing agency other states to avoidwater use restrictionswithin such areas. will be empoweredto permit, deny or condition a person's use The success of such discussionsand the ability of the State of water within a CapacityStress Area.The transfer of authori of Alabamato secure concessions from its neighboringstates ty from the Officeof Water Resourcesto ADEMin such areas will depend upon the quality of the data gathered during the recognizes ADEM'sexpertise in administering discretionary Critical UseStudy. Armedwith a well-documentedand defen environmental permits. In addition, the transfer of functions sible Critic.11Use Study, the State of Alabamamay be able to to AOEMallows the State of Alabama to maintain a single obtain cooperative agreements from water users within the state agency or point of contact for persons engagedin activi state and in other states and to avoid protracted legal battles ties requiring environmental permits or approvalsas a condi over water rights. If so, the Act should be considered a suc tion to the initiation or maintenanceof such activities. cess. Even if water rights litigation occurs, however,the State of Alabamashould have sufficientwater use informationand C. Implementing regulation s the ability to project future water needs. When compared to On December9, 1993, the Alabama Water ResourceCom mission adopted the initial regulations for the general opera tion of the OWRand the AWRC;the procedures for adminis trative hearings and appeals; the procedures for adopting, REAL ESTATE amending, and repealing rules and regulations governing the ATTORNEYS OWRand the AWRC;and the administrationof declarationsof beneficial use and certificates of use. For the most part, the LASER SOFTWARE rules and regulations reiterate and expand upon provisionsof the Act59 These regulations do not include any provisionfor A complete line of Real Estate Closing the implementation of Critical Use Studies or the designation Prog rams includin g of CapacityStress Areas. @ HUD's, Buyer & Seller Stateme nts, Disbursemen t Registe r, Checkwr iting Conclusion @ Deeds, Mortgages, Notes, & Affidavits Alabama's Jong history of reliance.on the common law of c+JTitle Policies , Comm itm ents and riparian rights doctrine led to strong oppositionto the Actand Endor sements raised questions about the need for the Act. However, the @ FNMA and More State of Alabamacould no longer dependso lely upon the com One time data entry, all calc ulations mon law of riparian rights to manage and protect its water perfo r med, high qua lity pr int ing of resources because of growing interstate and intrastate comp lete document , with data, generated demands on such resources. Increasing interbasin diversions on plain paper. CALL FRE E (813) 763-5555 Wllll•m S. Cox Ill Will!om S. Cox. 111is a gradua10 of Vande1bi!l U!'ViVl'f· s!ty1111d lhe Unl>0 Display S}'ltcms, Inc., 180 N.W. 3rd Ave. Okcccllol>cc, Fl. 34m THEALABAMA LAWYER MayJ 994 I 181 the state's abilityto manage water resourcespr ior to the Act, River; (d) the Chattahoochee River; and (e) lhe Warrior River. Only this additionalin formationw ill strengthen the state's position the Warrior River originates within the State of Alabama The Coosa, in any discussions with neighboring states, federal agencies, Tallapoosa and Chanahoocllee rivers originate In the State of Geor gia. The Tombigbee River originates In the State ol Mississippi. The and others over the use and developmento f water resources.• TennesseeR ivet originatesin the stateso l Tennessee. NorthCaroli na and Virginia. Endnotes 11. See Complaint, State of Alabama v. United States Army C-Orpsof 1. Ala. Code§ 9· 198-2 (3) (Stipp . 1993). Engineers, United States Oistrict Court, N0 182 I May1994 THEALABAMA LAWYER YOUNG LAWYERS' SECTION By LESHAYES !fl, presidenl Exec utive Commltt positions with the YLDand has estab Kansas City, Missouri. AlabamaY oung wlnter meet ing lisheda solidrapport with its leadership. Lawyers Charlle Anderson (Mont gomery), Mark Drew (Birmingham), n February 18-20, the Weare indeedfortuna te to haveMark as an Alabama YoungLaWYer an d appreci Robert Hedge (Mobile).and I attended Alabama Young Lawyers' ate his efforts. and servedas delegatesto the Mid-Year Section Executive Commit Meeting Assembly or the YLD. During lee held its annual winter YLD mid-year aswnbly !Meting the assembly several resolutions and mmeeting In Point Clear. We were hon bills were considered.Those that passed ored to have as our guests several offi The 1994 ABAAnnual Mid-Year M eet were then sent lo the ABAGenera l cers from the ABA'sYoung Lawyers' ing washeld in Februaryof this year in Division:M ike Bedkt (chair-elect), Rick Assemblya.s being representativeo f the official position of the YLD. A wide Bien (speaker of lhe assembly)and Jack range of topics discussed,including Brown (board or gO\.-emors).Over the was sexual harassment, bar admission years,we haYI!dewloped somewhatof a requirements and national health care tradition of h05tingofficials of the YW. Theseofficers spend se-.aeral months out reform. of each year meeting with attorneys Sande.tin seminar throughout the United Stales and for mulatingthe YLD'sagenda on a national Final arrangements have been made level. Their willingnesslo take time out for our annual Sandestin Seminar from their busy schedulesto meet with to take place at the Sandestin Resort, us al Point Clear speaks very highly or May 20 and 21. If you have not our AlabamaYoung Lawyers' Section yet made plans to attend please do so and the national reputation it has now. We have an impressive list of attained. I would be remiss if I did not speakers, including AlabamaSup reme recognize Mark Drew (Blrmiogham). Court Chief J ustice Sonny Hornsby. Much or the credit for the strong rela Several social events have also been tionshipwe havewith the A8AIYLDcan planned for the afternoons and be attributed to him. Mari MAY 20·22 Name AlabamaSt.ate Bar 10# (SocialSecurity #) Address City State ZLP+4 r::::::J$140.00 Registration Fee r::::::JCheck here ir you wish to enter the golf tournament. Greenfees will be paid at Sandestin. Makecheck payab le to Alabama Young LIW)"'ra' Section, c/oAlfredF. Smith.Jr., Treasurer,1901 6th Avenue, North,Suite 2400, Birmingham.Alabama 35203. L------~ THE ALABAMALAW YER May 1994 / 183 NoWonder It's Difficult To Keep PaceWith Your Busy Work Load. AfterAll, You're Only Human. Michie'sAlabama Law On Disc:' Phone cal ls. Client meetings. Research that once took hours training in your office, nnd unlimit• Filing deadlines. It may seem as if can now rake minutes, giving you ed access to Michic's toll-free law you need a 30-hour day to give your more time for client contact and yer support hotline. clienrs the best possible service practice-building activ ities- no Ca ll The Michie Company today including lega I research. But here's matter how heccic your schedu le to arrange n demonstration without a research system that helps you maybe. obligation or risk. Ask about the find state law on point with speed LEXIS MVP online service as well. that's positively inhuman. 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Law On Disc can be the equalizer, you're busy, so Alabama Law On Disc is easy to giving you unlimited research at a we'll be brief. set up and start up, and your com fixed montl,ly cost which includes plete satisfaction is guaranteed. quarterly update discs, personal Alabama Law On DiscCo ntain.sT hcse Up -To-Dace, Full Text Libraries: •Codl of Alabama(annornced) • AlabamaR11k.s Anoorau,d • Alabama Supreme Court 800/562,1215 O...:isionss,ncc 1954 • AlabamaCoun of AppealsDecb10ns from 196510 Sepcember Counof THE M ICHIE COMPANY 1969 •AlabomaCounofCivil Appcah Decislonssmc~1969 •Alaham3 Law Publishers Since 1855 Cnminal Arpc•lsDecis,ons since 1969. t>.O. Bo• 7S87, Chari<>n.. vlll,, VI\ 22906-7587 184 / May 1994 THE ALABAMALAWYER RECENTDECISIONS By WILBURG. SILBERMANand TERRYA. SIDES was excessive. See also City Realty, petition for a writ was denied. SUPREME COURT OF Inc. u. ContinentalCasualty Company , GreenOil factors and Hammond THE ALABAMA IMs. 1911427, May 27, 1993 1, hearing not applicable to _So.2d _ (Ala. 1993). questions of excessiveness or inadequacy of jury verdict awarding Failure to comply with §6-11-J Discovery of customer lists and solely compe.nsatory damages may preclude appellate review other such evidence-limited to In Pifl v. Century ll , Inc., (Ms. of jury's award of damages cases involving fraud claims? 1920923 , December 22, l 993 ), In Clarke-MobileCounty Gas District ln Ex parte Mobile Fixture and _ So.2d_(Ala. 1993), the plaintiff u. Reeves, (Ms. 1920467 , August 20, Equipment Company, Inc., [Ms. was injured in a crane accident. lie sued 19931, _So.2d_(Ala.1993) , the 1921109 , August 27, 19931, the crane manufacturer on claims for defendant , Clarke-Mobile , appealed _ so.2d_ (Ala. 1993), the plaintiff negligence , wantonness and liability from the denial of its motion for a new sued the defendant on claims alleging under Alabama's Extended Manufactur tr ial, or, alternatively, to alter, amend, theft and conversion and breach of con er's Liability Doctrine. The plaintifrs or vacate a judgment in favor of the tract , arising out of the defendant's claims were all based on the absence of plaintiffs, the Reeves. The Reeves sued agreement to provide security services an emergency brake on the crane. Clarke Gas on claims for intentional for the plaintiff. In the discovery pro At trial. following lhe conclusion of trespass to their property. They alleged cess, the plaintiff filed interrogatories all of the evidence, the trial court grant that without their permission, Clarke and requests for production , which ed the defendant's motion for a directed Gas employees had buried a gas line on sought the identity of all of the defen verdict as to the plaintiff's claim for their proper ty and had damaged their dant's customers for the preceding five wantonness. The plaintiff then voluntar property in the process. The Reeves years and production of the defendant's ily dismissed his negligence count. This sought both compensatory and punitive customer list. The defendant objected to left the AEMLD~ount as the plaintiffs damages. The trial court, without objec these discovery requests , arguing that only remaining claim. The jury subse tion, instructed the jury in terms of an the information and materials sought quently returned a verdict in favor of undesignated award. The jury awarded were confidential, privileged and not the plaintiff, and awarded him compen· the Reeves $256 ,150 in unspecified relevant to the plaintiff's claims. The satory damages of S300,000. The defen damages. On appeal, though, the judg trial court denied the plainliffs motion dant moved for a new trial, which the ment in favor of the plain tiffs was to compel. trial court denied conditioned upon the reversed on other grounds , the court On a petition for a writ of mandamus, plaintiff's acceptance of a remittitur of noted that because the jury did not the plaintiff relied upon Ex parte Asher, $.200,000. The plaintiff did not accept apportion its award, it could not deter Inc., 569 So.2d 733 (Ala. J 990) , Ex lhe remittitur , and the tria l court mine what the award represented. "This parte State Farm Mutual Automobile ordered a new trial. is a critical problem in addressing Ins.Co., 452 So.2d 861 (Ala. 1984), and On appeal, the plain tiff argued that Clarke Gas's argument that the jury Ex parte AllstateIns. Co.,401 So.2d 749 lhe trial court had erred in ordering a awarded excessive punitive damages. We (Ala. 1981), as support for its position remitti tu r of the compensatory dam cannot reasonably determine that the that the court should direct the trial ages award. The trial judge's remitt itur jury, in fact,awarded any punitive dam court to order the defendant to produce order demonstrated that his reasons for ages." Ala. Code §6-11-1 (1975), pro the requested informa t ion . In an concluding that th e jury verdict was vides: opinion authored by Justice liouston , nawed and for ordering the $200,000 In any civil action based upon however, the court recognized that remittitur were based upon his analysis tort ... except actions for wrongful those cases "are distinguishable from of the factors set out in GreenOil Co.u. death ... the damages assessed by th is case because each of those cases Hornsby, 539 So.2d 218 (Ala. 1989), the fact-finder shall be itemized as involved fraud claims ; in each , the which are the factors for a tr ial court to follows: (1) pas t damages; (2) Court allowed discovery of similar consider in determining whether a jury future damages; (3) punitive dam fraudu lent acts to prove an alleged award of punitive damages is excessive ages. fraudulent scheme , plan or design on or inadequate. The plaintiff argued that Where, with out objection , the trial the part or the defendants ....Under the these factors are not app licable and court instructs the jury in terms of facts of this case, however, Ithe plain should not be considered by the tr ial an undesignated award, such will pre tiff! has not alleged that ltbe defendant) court when determining whether a jury clude the appellate court's review engaged in any type of fraudulent verdict solely for compensatory dam of whether th e jury 's damages award scheme. " Accordingly , the plaintif r s ages is excessive. THE ALABAMALAWYER May 1994 / 185 The supreme court agreed. In writing trial on the plaintiff'sacceptance of the draw the reference immediately is a for an unanimous court, Justice Shores $200,000 remittitur. pragmatic question that should be lert noted that, ln regard to awards exclu to the discretion of the district courl, sively for compensatory damages, the caseby case. court's prior holdings have narrowed BANKRUPTCY the scope of Hammondv. City of Gads Be careful lo protect adminlatnti~-e den, 493 So.2d 1374(Ala. 1986), so that expensu in case converted from Chap a Hammond hearing is not mandatory Insiders haverig ht to jury trial, but ter 11 to Chapter 7 "where the award is clearly supported f'ourtb Circuit says banlcruptcycourt In the Matterof DeVriesCram & Fer by the record."See CSX Transp.,Inc. v. cannot hold trial tilizer, 12 F.3d IOI, 25 B.C.D. 89, (7th Doy, 613 So.2d 883 (Ala.1993 ). Justice In re StansburyPoplar Place, 13 f'.3d Cir. (111.). Dec. 22, 1993). DeVries Shores further stated: 122, 25 B.C.D.95, (4th Cir. (Md.),Dec. (debtor) had an involuntaryChapter 11 The reason for the differencein 27, 1993). In October 1990, five related petition filed against it on January 31. approach (in compensatorydam estates filed Chapter 11 cases; one 1986. Hollewell Enterprises sold on age casesvis a ui.spunitive dam month later the unsecured creditor's open account and also made loans to age cases) is that a review of a committee was appointed as the party debtor on May 7, 1986. On June 12, jury verdict for compensatory responsible for unsecured creditors in 1989. Hollewellfiled an administrative damages on the ground or exces· all the cases. Two years later the court claim of $389,606.1I, requesting pay siveness must focus on the plain authorized the committee to file avoid· ment rirsl under §503(b)(l)(A) as an tiff (as victim] and ask what the able transfer proceedingsagainst sever ordinary expense. and secondly under evidence supports in terms of al insiders, who then filed jury de 503(b) (3)(0) as making a substantial damages suffered by the plaintiff. mands.The Insidersalso requested that contribution to the estate. A hearing A courl reviewing a verdict for the referencebe withdrawn contending took place on September J I, 1989 with compensatory damages must that the bankruptcy court has no out an order being issued. On January determine what amount a jury, in authority to conduct jury trials. The 18, 1990. the caseconverted to Chapter its discretion, may award, viewing committee contended that because it 7, and on February 6, 1990, an order the evidence from the plaintiffs also had requested an equitable issued that claims must be filed within perspective.Bridges u. Clements, accounting no jury trial was warranted. 90 days art.er the meeting of creditors. 580 So.2d 1346. 1349(A la. 1991). On reaching the Fourth Circuit, it was Hollewell, which had never fileda proor In contrast, a review or a jury held that regardlessof the completedis of claim, ignored the order. Two years verdict for punitive damages on array of records, if no proof or claim thereafter, Hollewell filed a request to grounds of excessiveness must had been filed, the SeventhAmendment have its Chapter JJ ex.penseallowed , focus on th e defendant. The entitl ed a party, whether or not an which was denied by the bankruptcy Green Oil factors are not all insider who had control of the business, and district courts. The Se~enth Circuit inclusive, but they require a to a jury trial. Further, ming a proof of affirmed, stating that neither the reviewingcourt, whether trial or claim in a related casewould not affect BankruptcyCode nor Rules provide for appellate, to begin and end its the jury entitlement where no claim allowance of administrative expense review of a punitive award by had been filed. The court quoted the focusingon the defendantand the U.S.Supreme Court that stated. "where defendant'sconduct. The jury and T-..y &la.n both legal and equitable issues are pre SIMa a reviewing court in a punitive sented in a single case.·only under the T•ryAlons.deo.• damages case struggle to deter most imperative circumstances ... can CCMn ... cMlponion ol tno docilclns,ii a mine what amount is appropriate the right lo a jury trial of legal issues be gtadumool 1het.Jnlvor to further the aims of punit ive lost through prior determination of litv0 1Alabama and verdicts: to punish the particular ~School of equitable claims.' " (Dairv Quee11v . 1..-d-.S~ · defendant before the court and lo Woods, 369 U.S.469-1962 ). tllJHt••-d 1heMonl-lirmd deter others from similar conduct The court then discussedthe authori Hill, Hi&,Caner, Fr anco, in the future. These considera ty of bankruptcycourts to conduct Jury Colo& Black. tions have no place in a reviewof trials. It declared that there was no leg a purely compensatory jury islative guidance either In the wording ...WIibu r 0. award, where a reviewing court of the statutes. or in the legislativehis · _ W:-GSlbetmon . should view the award from the tory. In holding that the bankruptcy 01 '"- 81rmo,,gt,anllltm standpoint or the victim. court does not have such authority, It d Goidon.S ilbem,an, Accordingly, because this was a case Wlgglne & Chdds, adopted reasoning or the Seventh and auonoedSamlord involving only compensatory damages Eighth circuits that there would have Urlvtts,ty """ ... and the trial court considered factors lo be a direct allowance by Congress i.w,....,vor-..__ ... law that are relevant only to an award of and that authority could not be implied. oeo,N trom the lJnl. punitive damages, the trial court erred Finally. the Fourth Circuit slated that YG THE AI..ABAMALAWYER May1994 / 187 ALABAMASTATE BAR SECTION MEMBERSHIPAPPLICATION Tojoin Ol')f or morelfdlons, complete1hl.s tom, and anachseptrate ,hecks payableto e.tth sectionyou wish to Join. NAME------~ FIRM OR AGENCY------ OFFICEADDRESS------ OFFICELOCATION ------ OFFICETELEPHONE N UMBER------ SECTION ANNUAL DUES --- ADMINISTRATIVE LAW ...... $20 BANKRUPTCYANO COMMERCIALLAW ...... $ 20 BUSINESSTORTS AND ANTITRUSTL AW ...... $15 --- COMMUNICATIONSLAW ...... $15 ___ CORPORATECOUN SEL...... $ 30 ___ CORPORATION, BANKING AND BUSINESSLAW ...... $10 -- - CRIMINAL LAW ...... $ 10 --- ENVIRONMENTALLAW ...... $20 FAMILY LAW...... $3 0 HEALTH LAW ...... $ 15 LABOR ANO EMPLOYMENTLAW$ 10 IF PRACTICING LESSTHAN S YEARS, $JO IF PRACTICINGS OR MORE YEARS LITIGATION ...... $ 15 ___ OIL, GASANO MINERALLAW ...... $ 1 5 REALPROPE RTY, PROBATEANO TRUSTLAW ...... $1 0 --- TAXATION ...... $1 S --- WORKER'SCOMPENSATION LAW ...... $20 YOUNG LAWYERS'...... 0 TOTAL REMEMBER: ATIACH A SEPARATE CHECK FOR EACH SECTION. MAIL TO: SECTIONS, ALABAMA STATEBAR , P.O. BOX 671, MONTGOMERY, AL 36101 188/ May1994 THEALABAMA LAWYER Alaba111a Law Foundation Awards Grants By TracyA Daniel ow interest rates were a boon to home buyers in 1993. but meant the secondconsecutive ~r of a declinein IOLTAincome L to the Alabama LawFoundation. Interest rates paid on lawyers' trust accounts rangedfrom 2 percent to 3 percent,down from an aver 1994 Grants age of 5 percent just three years ago. In March 1994the foundation awardedSS00,000 in grants to 24 org;inizationsthroughout Alabama, a LEGALAID TO THE POOR 20 percentdecline over the $1 million givenin 1993.However , interest LegalServicff Corporation of Alabama...... $240,000 rates haveshown a slight upticksince the first of the year. LegalServices of NorthCentral Ailblma ...... $75 000 The Crants Committee, chairedby AllanChason of BayMinette, had 1 the difficult task-of cutting down the $1,291,000in grant requests LegalServices of lletroBinninghMn ...... $75 ,000 receivedto the SS00,000 available. Consequently,the foundationcould MobileBar Assoclation ...... $50,000 not fund all requests submitted. All but one of those who received AlabamaStale Bar Volunteer Lawyers Program ...... $70,000 funding in previous years receivedcuts or level funding. The other MontgomeryCounty Bar Pro Bono Project ...... $10,000 members of the committee are Delores Boyd,Montgomery; Richard Total...... $52ll 000 Hartley, Greenville;Alan Livingston,Dothan; Sam Stockman,M obile; 1 Jim Pruett, Birmingham;Donna Pate , Huntsville; and AndyWear , F'ort Payne.TI1e foundation is gratefulfor the time theycontr ibute to review the requests. ADMINISTRATIONOFJUSTICE The foundation continued its funding of legal aid to the poor CapitalRepreMntatlon RelOlll'<:e Cenlef ··- ..--- $75,000 through its fundingof l..egalServices lawyers to providerepresentation AlabamaPrison Project ...... _.. $55,000 of victimsof domesticabuse in legal matters. The AlabamaState Bar AlabamaSim BarCenter IOf Dispute Resolution -$42,SOO VolunteerLawyers Program and the MobileBar AssociationPro Bono MobileBay Alea Partnership !Of Youth , Inc,• ••- • ...$10000 Programboth continued to grow, exhibitingthe willingnessof lawyers 1 to volunteer their time and expertiseto help the needy. Over 1,500 BirminghamYWCA Family Violence Center - ..- -...$2ll,OOO TheShelter , Inc...... ,,... , __ ,,...... $15 000 Alabamaattorneys participate in pro bono efforts, either through 1 acceptingcases referred to them or voluntarilyreporting the number HOPEPlace, lnc ...... ,---· ·· ...... $7,500 of pro bono hours theywork. Penek)pieHouse ., Inc...... - ....--.. .- ,...... $12,500 The foundationcontinued its fundingof the AlabamaCap ital Repre 2ndChance , Inc,...... ,--.-...... $7 1500 sentation Resource Center, which providesassistance to attorneys Total...... _ .._ ._ ...... $245,000 appointedto represent defendantsin capitalcases in the post-convic tion stage. The center's help makes it easier for lawyersto provide effectiverepresentation for their clientsin these comple.xcases. LAW-RELATEDEDUCATION Domestic abuse shelters in Birmingham, Huntsville, Gadsden, YouthJudic ial Program- ...... $10,000 Anniston, and Mobilereceived grants to help fund victims' advocates. Cityof V emon····-·'* - '"'""'""""''"'"'...... $1 , '69 The advocateswork with victimsof domestic abuse to help guide them Total...... _., ...... $11.469 through the court system.They provideassistance in matters as basic as obtaining warrants which often seem overwhelmingto someone LAWLIBRARIES scared and confused. CalholllCounty ...... $3,SOO The MobileBay Area Partnershipfor Youthand the YoungLawyers ' ChambenCounty ...... $3,750 Section/YMCAYouth Judicial Programboth receivedfunding for pro jects involving youngpeople. The formerwill hold a camp in Pricl1ard EtowahCOll'lty ...... $5,000 this $Ummerfor youngpeople at riskof becomingi nvolved in crime. At GenevaCounty ...... $41000 the other end of the spectrum, the Youth Judicial Programsponsors MadisonCounty ...... $3,SOO mock trial competitionsto help high school students learn how the MontgomeryCounty ...... $700 judicialsys tem works. PickensCoun1y ...... $3,000 A completelist of grants awardedfollows . The foundationthanks the Total,_ ...... $23,450 lawyersand banks participatingin the IOLTAprogram for their sup port. If you do not currently participate in IOLTAor have changed banks or firmsand wishto establisha new IOLTAaccount , pleasecon TOTAL...... $799,919 tact TracyDanie l at 269-1515or 800-354-6154. • THE ALABAMALA WYER May1994 / 189 OPINIONSOF THE GENERALCOUNSEL By ROBERTW NORRIS, general counsel UESTION 1 factor lo the discouragingpublic opinion of the legal profession The Standing Committee on Ethics and Profes appears lo be the billingpractices of someof its members. sional Responsibilityof the American Bar Associa ll is a common perception that pressure on lawyersto bill a tion issued Formal Opinion 93-379 on December minimum number of hours and on law firms lo maintain or m6, 1993,concerning billing for professional fees,disbursements improveprofits may have Jed some lawyerslo engage in prob and other expenses. This office receives numerous requests lematic billing practices. These include charges to more than concerning these subjects and, for that reason, requests the one client for the same work or the same hours, surcharges on Disciplinary Commission lo determine whether or not this services contracted with outside vendors, and charges beyond opinion correctly stiles the rule applicableto Alabamalaw;-ers reasonable costs for in-house services like photocopyingand concerning these matters. computer searches. Moreover, the ba.su on which these chargesare lo be assessedoften are not disclosedin advanceor NSWER: are disguised in cryptic invoices so that the client does not It is the opinion of the Disci pl i nary Commission fully understand exactly what costs are being charged to him. that ABAForma l Opinion 93-379correctly states The Model Rules of ProfessionalConduct provideimportant the rule applicableto Alabamalawyers concerning principlesapp licable to the billing of clients, principleswhich, athe billing of professional fees, disbursements and other if followed, would ameliorate many of the problems noted expenses.Accordingly, Format Opinion 93-379is incorporated above.The C-OmmiUeeh;u decided to addressseveral practices herein and made a part of this opinion. that are the subject of frequent inquiry. with the goal of help. ing the professionadhere to its ethical obligationslo its clients American Bar Associat ion Formal Opinion 93-379 despite economic pressures. Consistent with the ModelRules of Professional Conduct, a The first set of practices involvesb i!ling more than one client lawyerm ust disclose to a client the basis on which the client is for the same hours spent. In one illustrativesituation, a lawyer to be billed for both professionaltime and any other charges. finds it possibleto schedule court appearancesfor three clients Absenta contrary understanding,any in,'Oicefor professional on the same day. He spends a total of four hours at the court services should fairly renect the basis on which the client's house, the amount of time he would have spent on behalf of charges have been determined.In matters where the client has ea.ch client had it not been for the fortuitouscircumstance that agreed to have the fee determined with reference to the time all three cases were scheduled on the same day. Mayhe bill expendedby the lawyer,a lawyer may not bill more time that each of the three clients, who otherwise understand that they she actually spends on a matter, except to the extent that she will be billed on the basis of time spent, for the four hours he rounds up to minimum time periods (such ;u one-quarter or spent on them collectively?In another scenario,a lawyeris Oy one-tenth of an hour). A lawyer may not charge a client for ing cross-countryto attend a depositionon behalfof one client, overhead expenses generally ;usociated with properly main e,cpendingtravel time she would ordinarilybill to that client If taining, staffingand equipping an office;ho-.-ever, the lawyer she decides not to watch the movie or read her novel, but to may recoup expenses reasonablyincurred in connection with work instead on drafting a motion for another client, may she the client's matter for services performed in-house. such as charge both clients, each of whom agreed to hourly biWng.for photocopy ing, long distance telephone calls, computer the lime during which she was traveling on behalf of one and research, special deliveries, secretarial overtime, and other drafting a document on behalf of the other? A third situation similar services,so long as the charge reasonablyrenects the involves research on a particular topic for one client that later lawyer'sactual cost for the servicesrendered. A lawyermay not turns out lo be relevantt o an inquiry from a second client May charge a client mon that her disbursements for services pro the firm bill the second client,who agreed Lo becharged on the vided by third parties like court reporters. travel agents or ba.sisof time spent on his case,the same amount for the recy expert witnesses, except to the extent that the lawyer incurs cled work product that it charged the first cllenJ? costs additionalto Jhe direct cost of the third-party services. Thesecon d set of practicesi nvolvesbi llingfor expensesand dis The legalpr ofessionhas dedicated a substantial amount of time bursements,and is exemplifiedby the situation in which a firm and energy to developingelaborate sets of ethicalguidel ines for contracts for the expert witness servicesof an economistat an the benefit of its clients. Similarly, the profession has spent hourly rate o! $200.May the firm bill the client for the expert's extraordinary resources on interpreting,teaching and enforcing time al the rate of $250 ptr hour?Similarly, may the firm add a these ethicsrules. Yd, ironically,lawyers att not generallyregard surcharge lo the cost of computer-assistedresearch if the per ed by the public as particularlyethical. One major contributing minute total charged by the computercompany does not include Fonnal Opinion 93-379 Billing for Profe4sionol Fees,Disburs ements and Other Expe,1ses,December 6, 1993, r11printedwith permission of the Amerlr:a11Bar Associatio11 190 I May1994 THE ALABAMALAWYER the coot of purchasingthe computersor staffingtheir operation? 7.1, which addresses communicationsconcerning a lawyer's The questions presented to the Committee require us to services,including the basis on which fees would be charged. determinewhat constitute reasonable billing procedures;that The rule provides: is, what are the services and costs for which a lawyer may A lawyershall not make a falseor misleadingcommu legitimatelycharge, both generallyand with regard lo the spe nication about the lawyer or the lawyer's services. A cific scenarios? This inquiry re~uires an elucidation of the communicationis falseor misleadingtf it: Ruleof l'TofessionalConduct 1.5, and the ModelCode of Pro (a) contains a material misrepresentation or fact or fessionalResponsibility DR 2-106. • law, or omits a fact necessary to make the statement consideredas a wholenot materiallymisleading . Disclosure of the .... . of the Amounb to Be Ctuirged It is clear under ModelRule 7.1 that in offeringto perform At the outset of the representationthe lawyershould make servicesfor prospectiveclients it is critical that laW)-ersavoid disclosureof the basis for the fet and any other charges to the makingany statements about fees that are not complete.If it clienLThis is a two-foldduty, includingnot only an explana is true that a lawyerwhen advertising for new clients must tion at the beginningof engagementof the basison which fees disclose,for example,that costs are the responsibilityof the and other charges will be billed, bul also a sufficiente~plana clients, Zaudereru. Officeof DisciplinarvCounsel, 471 U.S. tion in the statement so that lhe client may reasonably be 626 (1985), it necessarilyfollows that in entering into an actu expectedto understandwhat lees and other charges the client al client relationshipa lawyermust make fair disclosureof the is actuallybeing billed. basison which feeswill beassessed. Authorityfor the obligationto make disclosureat tbe begin A corollaryof the obligationto disclosethe basis for future ning of a representation is found in the interplay among a billing is a duty to render statements to the client that ade number of rules. Rule 1.S(b)provides that: quately apprise the cLienlas to how that basis for billing has When the lawyerhas not regularly represented been applied.I n an engagementin which the client has agreed the client, the basisor rate of the feeshall be com to compensatethe lawyeron the basis or time expendedat reg municated to the client, preferably in writing, ular hourly rates, a bill setting out no more than a total dollar beforeor within a reasonabletime after commenc figurefor unidentifiedprofessional services will often be Insuf ing the representation. ficient to tell the client what he or she needs to know in order The Comment to Rule 1.5gives guidance on how to execute to understand how the amount was determined. By the same the duty to communicate the basis of the fee: token, billing other charges without breaking the charges In a new client-lawyerre lationship ... an under down by type would not provide the client with the Informa standing as to the fee should be promptly estab tion the client needs to understand the basis for the charges. lished. It is not necessaryto recite all the factors Initial disclosure of the basis for the feearrangemenl fosters that underI ie the basis of the ree, but only those communicationthat will promotethe attorney-clientre lation that are directly Involvedin its computation. It is ship. The relationship will be similarly benefittedif the state sufficient, for e~mple. to state that the basic rate ment for servicesexplicitly reflects the basisfor the charges so is an hourly charge or a fixedamount or an esti that the client understandshow the feebill wasdetermined. mated amount, or to identifythe factors that may be taken into account in finally fixing the fee. Professiona l Obllgatlon .s When developmentsoccur during the representa Regarding the Reasonablene ss of Fees tion that render an earlier estimate substantially Implicit in the Model Rules and their antecedents is the inaccurate, a revised estimate should be provided notion that the attorney-clientrelationship is not necessarily to the clienl A written statement concerning the one of equals, that it is built on trust, and that the client is fee reduces the po5$lbilityof misunderstanding. encouragedto bedependent on the lawyer,who is dealingwith Furnishing the client with a simple memorandum matters of great moment to the clienLThe client should only or a copy of the lawyer'scustomary fee schedule is be charged a reasonablefee for the legal servicu performed. sufficientif the basisor rate of the fees is set forth. Rule 1.5 explicitlyaddresses the reasonablenessor legal fees. This obligation is reinforced by reference to Model Rule The rule deals not only with the determinationof a reasonable l.4(b) which providesthat: hourly rate, but also with total cost to the client. The Com A lawyershall explaina matter to the extent rea ment to the rule states, for example,that · tat lawyershould not sonably necessary to permit the client to make exploita feearrangement based primarily on hourly chargesby informeddecisions regarding the representation. using wastefulprocedures." The goal should be solelylo com pensate the lawyer fully for time reasonably expended, an Whilethe Comment to this Rule suggestsits obviousappli approachthat if followedwill not takeadvantage of the c:lienL cability to negotiations or llligalion with adverse parties, it.s EthicalConsiderat ion 2-17 of the Model Codeof Profession important principle should be equally applicable to the al Responsibilityprovides a frameworkfor balancingthe inter lawyer's obligation lo explain the basis on which the lawyer ests between the lawyerand client in determining the reason expectst o be compensated, sothe client can make one of the ableness of a fee arrangement: more important decisions"regarding the representation." The determination of a proper fee requires considerationof An obligation of disclosure is also supported by Model Rule the interests of both client and lawyer.A lawyer should not THE ALABAMALAWYER May 1994/ 19 1 charge more than a reasonablefee, for exceS5h-ecost of legal proces.s. ModelRule 3.2. Just as a lawyer ls expected to dis strvice would deter laymen from utilizing lhe legal system in charge a matter on summaryjudgment if possiblerather than protection of their rights. Purthermore, an excwive charge proceedto trial, so too is the lawyerexpected to completeother abuses the professional relationship between lawyer and 1,rojects for a client erficienUy.A lawyershould take as much client. On the other hand, adequatecompensation is necessary time as is reasonably required to complete a project, and In order to enable the lawyerto serve his client effectively and should certainlynever be motivatedby anything other lhan the lo preservethe integrityand independenceof the profession. best interests of the client when determining how to staff or The lawyer'sconduct should be such as to promote the how much time to spend onany particular project. client's trust of the lawyerand of the legal profmion. This It goeswithout saying that a lawyerwho has undertaken to meansacting as the advocatefor the client lo the extent bill on an hourly basis is neo.-erjustified in charginga client for necessaryto completea projectthoroughly. On ly through hours not actuallyexpended. If a lawyerhas agreed to chargelhe careful attention to detail is the lawyerab le lo manage a clienton this basisand II turns out that the lawyeris particularly client's case properly.An unreasonablelimitat ion on the efficientin accomplishing a given result, it nonethelesswill not hours a lawyermay spend on a client shouldbe avoided as be permissible to charge the client for more hours than were a threat to the lawyer's ability to fulfill her obligation actuallyexpended on the matter. When that basis for billingthe under ModelRule J.I to "pl'Ollidecompetent representa client has been ajlreed Lo, the economies associatedwith the tion to a clienL""Competent representation requires the result must inure to the benefitof the client, nol give rise to an legal knowledge,skill, thoroughnessand preparationnec opportunitylo bill a client phantomhours. This is not to say that essary for the representation."Mod el Rule 1.1. Certainly the lawyerwho airreedLo hourly compensationis not free. with either a willingnm on the part of the lawyer,or a demand full disclosure,to suggestadditiona .1compensation because of a by the client, to circumscribe the lawyer's efforts,to com particularly efficientor outstandingresult , or becausethe lawyer promise the lawyer's abilityto be as thorough and as pre was able lo reuse prior work producton lhe client's behalf. The paredas neassary, is not in the bestinterests of the client point here is that fee enhancementcannot be accomplishedsim and may lead to a violationof ModelRule I.I if it means ply by presentingthe clientwith a statementreflecting more bil· the law)-er is unableto pl'Ollidecompetent representation. tablehours than wert actuallyexpended. On the other hand, if a The Comment to Model Rule 1.2, while observing that matter turns out to be more difficultto accomplishthan first "the scope of servicesprovided by a lawyermay be limited anticipated and more hours are required than were originally by agreement," also notes that an agreement"concerni ng estimated,th e lawyeris fullyentitled (though not required)lo the scope of representation must accord with the bill those hours unleS5the client agreementtumed lhe original Rules.... Thus , the client may not be askedto agree lo r~ estimateinto a cap on the feesto be charged. resentationso limitedin scopeas to violateRule I. L ..,.3 On the other hand, the law)e-erwho has agreed to bill on the Charges Other Than ProfessiONII F-• basis of hours expendeddoes not fulfill her ethical duty if she In addition to charging clients fees for profwional services, bills the client for more lime than she actually spent on the lawyers typically charge their clients for certain addilional elienl's behalf.' In addreS5ingthe hypothelicalsregarding (a) items which are often referred to variouslyas disbursements, simultaneous appearanceon behalfof three clients, (b) the air out-of-pocket expensesor additional charges. Inquiries to the plane flight on behalr of one client while workingon another Committee demonstrate that the professionhas encountered client's matters and (cl recycledwork product, it is helpful lo difficultiesin conforming to the ethical standards in the areas consider these questions. not from the perspectiveof what a as well. The Rulesprovide no specificguidance on the issue of client could be forced to pay, but rather from the perspective how much a lawyermay chargea client for costs incurred cwer what Lhe lawyer ac.tually earned. A lawyer who spends four and abol.-eher ownfee. However,we belie\.>ethat the reason hours of time on beh.1lf of three clients has not earned twelve ablenessstandard expliclUyapplicable to fees under Rule J.5(a) billable hours. A lawyerwho mes for six hours for one client, should beapplicable to these chargesas well. while working for five hours on behalf of another, has nol The Committ.ee, in lrying to sort out the issues related lo eamed elevenbillable hours. A lawyerwho is able to reuse old these charges, has identified three different questions which work product has not re-earnedthe hours previouslybilled and must be addressed.Pirst, which items are properly subject to compensated when the work product was first generated. additionalcharges? Second, to what extent, if at all. may clients Rather than lookingto profit from the fortuity of coincidental be chargedfor more than actual out-of-pocket disbursements? scheduling, the desire to get work done rather than watch a Third,on what basis may clients be chargedfor the provisionof movie,or the luck of being asked the identical queslion twice, in-houseservices? We shall add ress these one at a time. the lawyer who has agreed Lobill solely on the basis of time spent is obligedLo pass the benefits of these economies on to A. General Overhead the client. The practice of billing several c:lientsfor the same \\/hen a client has engaged a la"'Yerto provideprofessional lime or work produd. since it results In lhe earning of an servicesfor a fee (whe.lher calculaledon the basis of the number unreasonable fee, therefore is contrary to the mandate of the of hours expended,a Oat fee, a contingent percentage of the ModelRules. Model Rule 1.5. amount recO\-eredor otherwise)the client would be justifiably Moreover, c-0ntlnuoustoil on or overstaffinga project for the disturbed if the lawyer submitted a bill lo the client which purpose of churning out hours is also nol properly considered included,beyond the professionalfee, additional charges for gen. "earning" one's fees. One job of a la,")lerIs to expedite the legal era! officeoverhead. In the absenceof disclosurelo the client in 192/ May1994 TH£ ALABAMALAWYER advanceof the engagement to the contrary, the client should head should pass ethical muster. On the other hand, in the re;isonablyexpect that the lawyer'sco st in maintaininga library, absenceof an agreementto the contrary,it is impermissiblefo r securingmalpractice Insurance, r entingo f officespace, purchas a laWYerto createan additionalsource of profit for the lawfinm ing utilities and the like wouldbe subsumedwithin the charges beyandthat which is contained in the provisionof professional the laWYeris makingfor professional services. servicesth emselves. The lawyer's stock in trade is the sale of legal services,not photocopypap er, tuna fish sandwiches,com B. Disbursements puter time or messenger services. At the beginning of the engagement lawyers typically tell their clients that they willbe chargedfor disbursements. When Conc lusion that term is used clients justifiably should expect that the As the foregoingdemonstrates , the subject of feesfor profes lawyer will be passingon to the client thoseactual paymentsof sional servicesand other charges is one that is fraught with funds made by the lawyeron the client's behalf.Thus, if the tension betweenthe lawyer and the client. Nonetheless, if the lawyerh ires a court stenographerto transcribea deposition,the principleso utlined in this opinion are followed,the ethical res client can re;isonablyexpect to be billedas a disbursement the olution of these issuescan be achieved. • amount the lawyer paysto the court reportingservice. Simi lar Endnotes ly, if the lawyerflies to LosAngeles for the client, the client can 1 . Rule 1.5 statesin relevant part: reasonablyexpect to be billedas a disbursementthe amount of (a) A lawyef's fee shall be reasonable. The factors to be coosidernd the airfare,taxicabs, m ealsand hotel room. in dete,minlng the reasonablenessoJ a fee include lhe tollowlng: It is the viewo f the Committeethat , in the absenceof disclo ( 1) The time and labor required, the novelty and difflcul1yor lhe sure to the contrary,it wouldbe improper if the laWYerassessed questions invOlved,and the Sl THEALABAMA LAWYER May1994/ 193 • M.E.M.O.R.I.A.L.S • partner with American Bar Association and M.A. Marsal the law firm AlabamaTrial LawyersAssociation. of Seale,Mar He was an avid sportsman who sal & Seale, enjoyed hunting, fishing, boats and HEREAS,M.A. Marsal. a \\'OO'ehe prac all outdoor activities. distinguished member of tlad lawwith Bubba ~tarsalwas a dtM>tedhus Wthis associalion, passed Harry Seale, band and father whose loss is fell awayon November4, 1993: and AJ. Sealeand keenly by all who knew him. He is NOW, THEREFORE. BE IT his son,Tony, survived by his wife, Ann, one RESOLVEDT HAT"Bubba", as he Bubba was daughter, Belh Mcl'arlan e of was affectionatelyknown, was born Maraal truly a "law Mobile,and three sons, L.A. Marsal fn Mobile, Alabama where he yer's lawyer" in every sense of the of Mobile. J.R. Marsal of Silver attended public schools. He attmd word, being an able 31\dfeared trial Springs, Marylandand W.A. Wing of ed undergraduate school at Spring lawyer representing plaintiffs in Orlando, Florida, and nine grand Hill College and the University of personal injury civil actions in children. Alabama.He served in the Air Force which he was able lo win a number in World War ll and was stationed of large verdicts. as well as defen dants fn criminal actions. in which in Guam. He graduated from the O. Richard Bounds he was able to obtain acquittals in Univen;ityor Alabama Law School Pnsident numerous capital cases. He was a in 1950. when he began the practice Mobi.leBar Association of law with Harry Seale. He was a member of the AlabamaState Bar, Wu.us VINCENTBELL NORMA.' KAf.&TAHNEWELL CARR OLL SAMU£LEARL£ H OBBS MORRISK. SIROTE Poirfax,VA Selma Binningham Admitted:1954 Admitted:1948 Admi//ed:1931 Died:December 28, 199 3 Dielj:January 4, 1994 Died:February 19 , 1994 CHARLESLEWI S DUNN JAOi MOSTCOMERY DoucwsWn.w.11 S10CK11A.11, ill Binningham Binningham Binningham Admitted:1964 Admitted:1967 Admitted: 1982 Died:March 1, 1994 Died:February 12, 1994 Died:January 20, 1994 Please Help Us The AlabarnaState Bar and TheAlabama lawyer have no way or knowingwhen one of our members is deceased unless we are notified. Do not wait for someone else to do It - if you know of the death of one of our memben;, pleaselet us know.Send the informationto: Christie Tarantino,P.O. Box671, Montgomery.Alabama 36101 194/ May 1994 THEALABAMA LAWYER CLASSIFIED NOTICES RATES: Members: 2 rree listings of 50 words or less per bar member per ca lendar year EXCEPT for "posi tion want ed " or •position offe red" listings - $35 per insertion of 50 words or less, $.50 per add itiona l word ; Nonmembers: $35 per Insertion of 50 words or less , $.50 per add itional word . Class ified co py and paym ent must be rec eived ac co rding to the following pub lishing schedul e: March '94 Issue - deadline Jan uary 31, 1994; May '94 issue - deadline March 31 , 1994: no deadline extensions will be made . Send classified copy and payment . payab le to Tile Alabama Lawyer. to: Alabam a Lawyer Classifieds , c/o Marga ret Murphy , P.O. Box 4156, Montgom ery, Alabama 36 101 . Phone (205) 836-0922 or (205) 678 · FOR SALE 6144. 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Not a referral service. Phone experience. ABFDE certified. Members. (205) 433-4623. (305) 856-1027. Fax (305) 285-1271 . ,------, ADDRESS CHANGES Completethe ronn below ONl.Yif then art changesto your listing in the current AlabamaBar Directory.Due to changesin the statuteJ!<)\-eming elect.ion o( b.1rcommissioner$, 1,-e now are required to= members' offitt addr~ unlessnone is a,oailableor a member is prohibited from rtteiving state bar mall at the office.Additionally, ~ Alabomo&tr Dirtttory is compiled from our mailing list and it Is important to= businw addressesfor that reason. NOTE:If we do not knowof an addresschange. we cannot makethe necessal)'changes on our records, so pleasenotify us when your addresschanges. Mallform to: Christle Tarantino, P.O. Box 671, Montgomery, AL 36101. _ ___ ------M•mberIdentification {Socio! Security) Numbet Choostont: O Mr. CHtrs. O Hon. 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