One malpractice insurer is dedicated to continually serving only Alabama Attorneys and remaining in the Alabama marketplace! AIM: For the Difference!
Attorn eys Insurance Mu1u al of Alabama , Inc .• 22 lnvemess Canter Parkway Telephone (205) 980 · 0009 Suite 525 Toll Free (800) 526 - 1246 D Birmlngliem. Alabama 3524 2· 4889 FAX (205) 980 -9009 'CHARTER MEMBER: NATIONAL ASSOCIATION OF BAR-RELATED INSURANCE COMPANIES. OfficialCode, AlabamaCases, And The Only AlabamaAdministrative Code OnCD--ROM.
A Comprehensive,1ntegrared System. Everychin g You NeedFerr Your Alabama Research.
When it comest0 hulltling your prac1icc,Alaba,M l.nwDesk' is the foundationfo r succc.o;;;.Wi th Al~bamaCases, OfficinlSra rutory Code,n nd Aclmlni.strntiveCode on CO,ROM,l.nw/Jesk br ini:..,s,rot~·o(,the,an 1ech nology10 Alnb:unaprimary law, Crt:1 1ing 1hemoo comprehensive,au1horimrive legal resoun:e a,~iilab lc in AL1bama.And wi1h a simplekeystroke or 11\0llSCclick. this powerfulS)=m linb 1,1 Alabama~ ALR: USCS:"Am Jur 1d and more. See,c foryourself . Fermore mformarion, or to arr.Jngt a !¥Kli>l,gationdemoa May 1996 Volume 57. Number 3 Publi&hDdsovon times a year (the June Issue ls a bar ON THE COVER: cirec:1oryedition) by the Alaben,a Smto Sar. The Coosa!liver nowing through Elmore County, Alabama.Alabama's rivers have playedan P.O. Box.4156, Montgomery, Alabama 36101-41$6 important role in the history of the stale, providing an inexpensil'e form of transportntion for PhOM (334) 269•1515 coal, stone, iron. steel, cotton. lumber. clay. and limestone. Yearsago, the bed or lhe CoosaRiver AOOOrlA. Huffako, ...- ,-- ...... - ..... ,-- Chair & Edilor Susan Shlrock OoPe.ola.. . . "" , ...... Vloo-Chalt & wasdug deeperso that boatscould travel all lhe way from U1eGulf or Mexicolo Rome, Georgia, a Associo1e Edl!Ot distanceor over 550 miles. Richard F. Allen ,,__ ...... --- Vice·Cha!r. Finance The be.iutirul Spanish moss found In the deep South is technically not a moss. but a 00\\'ering Susar\H Andrcs ...... ,___ ,_,,Slalt Liaison & plant lhal belongslo the pineapplefamily. l l absorbswaler and nutrients directlyfrom the air. CommunicationsOlmc:10, Margaret Murphy••••••• &all Liaison& Managlllg Editor - Photoby Paul Crawford,JD, CLU Bo en;I ot Edl10t'S w • M J Unde!Wooct.Tu,c;uidJIB • ~ 8 M,,VJ,Jt., Bc,n,ingharn• Nell L ~On:l. JI., Montl)Ot!Mlry• AIM T RQg,e,... 8lmw,gtiam • Jomes G. Stevens, M~ • INSIDE THIS ISSUE: Rober! W. Dtadbd, Jt..,~ery • DelbornfiAlllty Srn!lt!. Birmingham.• N oncy L Frankin, B1ITIWIQ'1,lm• John 0 . Interview with the Pnsident: ~. Blmwlgham • MikeOn.lh.an , Mobile• Aobet1Se0- e,s Smlih.Hl#'f!Wlle • Ctlatfel Cte11eland, Ekn'lin{lhA,rn• Glen John Owens on Firms, Fees and Tas k Forces ...... 132 cL.iCochran , Slrmn;Jl\lm• LisaHtlgglns. 811mringham• tton . D«lra. H. G~ Bl~m . PamellaL Motlll. Mon!• Dedication of Seyboum H. Lynne Federal Courthouse ...... 150 go,M,Y • ShtmT. Mlfll'Nn, 81rmiinghem• W\Ulaffl G . Gant!, Birmingham • Mlcl\Q.i A. Kiri.ind. MQntigomofy• Jona:lhan C!'O&S.TuscelOosa • P Lelgtl O'Doll , Mol'llgomery• t.lnd;I G. Parham H. WiUiams, Jr.: Showing the Way to What is Best in Our Profession Fl.,po, 13itml1'1111.n• L.RJlfiaN Oavi5. M ontgomefy • V«:M)tiaJ By Howard P. WalUiall...... 153 Ftanklin,Sssoft. Borm11~ • t.1, OonAldO,tvif. Ji .. Mobil! • Ar; 0 . Noofln,Jt .. Birmingham• t.ym llObottSM Jnddlcn , Law Practice: A Place for Moral Values Cln:flon• Hon WitlilmA , GooJo,\ MonlQOl!WY Board 0, Commi ssioners By Karon 0. BOl\'dre ...... 158 Ll.llt:on --·-·---· ..Samuel A . Rumora,.J1 .. 01rm.iQl\ll"I OfflCMt Fraud: Recent Development s in Alabama .Johtl A. Owers, Tu~ ·--,- .. ,,__ ,.... Pr0Pden1 Worroo B. Ugh11oot. Bllff'll"IQhllln_ .._ ,,__ ptff.:ienf.elocl By P. Leigh O'Dell...... 1 65 WilliamO MollOn, EV91Vteen.._ ...... , __ Vlce-pre:slde11 Ke!1h 8. HOl'n·u1n, Mon1goniery.. -·- ...... Sec;rot.lly Injuries and Loss of Eanlings 80..-d 04 CommJNloflitrt ByJam es B. Smith. Jr. and Jack A. Taylor...... I 76 \ti Ottud , E..MAI\ £lot. (M:or • ~Cl~ Jolin A. Nid!ola. l.&IY9me• 3rd Ciro.ii.L yM Aobe!t5onJackson , CIA)too • 41h C.,. 0-. Rillptl H Hol:t>I.SCllme • 51hOrcuil , Jahn PereyOwer , U. OldeWllt• 6th~PIACll!INo..1 , Wnll•P . ~ ,T~ Executive Director'slleport ...... 135 Legislative Wrap,Up...... 155 loo5!I• GlhClscull,Ptac& Uo.. 2.. J . DouglasMeEIYy, TutcalOosa • .,., Cifwc. Arh.- F f't1•, na.AIYll&loo • 81h Otcuil. JoM s Koy, Profiles...... 13 6 CLEOpportu nities ...... 157 Of!cart"• 91hClrcUit.W . N. Wll$)0,. FL Pnyrae• 10tt Ci'cul.Plaicie Bar Briers...... 138 Disciplinary Report ...... 180 No I, SamuelH . f'tat*II\ S".nnltlQtla!n• 1am Ciiolil, P\aoe No, AboutM embers. AmongF irms ...... 140 Recent Decisions...... 185 2, Jam• W a.win · H)lh Ci!Wit.Place, No. 3, J. Mart. Whlla, f.ltmln(IIWn • IOltlC.CUll, 11'*- No 4, S.muol A, Rwnoce.Jr Letter to the Editor ...... 144 Memorials ...... 188 • 10tl Qra.&. Place No. 5, Ftedetlek T ~. 111, i31rmin9- BuildingA labama's Courthouses...... 145 ClassifiedNotices ...... 19 t l'i;;!m• IOIi, Ciftut. Pl.It@No , G.Mac B, Gree\/91,Olrrningtlem • 100,Cia.d_ PlaoeNo. 7, J MMon o.vis,, ~m • 10lh C,.. Opinions of the Ceneral Counsel...... 151 a,11. Pface Ho, 8, Max C, Pq)e . Jr , Bi~m • 1~ Clnmi1. PIiot ~ 9, ~ltly $ , WngN, 9ffl1Wlghilm• 1001CltccAL Bes&e ALABAMASTATE BAR HEADQUARTERSSTAFF me, ru-on, George Hlgglri>oll,am. Bossamor • 1111'1Cu'Cl,lll. Rot,e,1 M. Ma.JI .. Aorono&• 121hCfCIA. M. oa1o Marsti, e,-.. 415 DexterAvenue. Mon[J!omel)'. Al, 36 104 1334)21i!l-1515 • FAX(334) 26J.63JO pda,e• 13th Cm:uil,PIAc:o No , 1, V~or H. I.'*, Jr.. Moote• 13'1 CmA, f'lalcf No, 2. Bly Bedsole, M«* • 13th Ci!QJI, ~ ExKUlh~ Oil'fCtor ..-· ·-···--···- ·····--- -Keith8 . Nonnan J\dmiuioru., \ssisb.nl ...... · -···-- ··········..Eliubeth Shwirl.J: c. 0 No. 3. ~ O'Roaf, u•, Mobi1o• 131nQclA, Aace No. .-. een Ex«utl\'C! ~ir,t:iru ...... - ...... - ....MJ.l'gartt Boant Alnb~ I.Awl- t1Vndll1ion.Inc.. Oir«tor ...... Trxy o ..ni<'I ja,,,erl T Fb\-e, Mobile • 141\ Cifwil. Tom~ Jaapo, • Director o(PTogrami- ······- ·······-.l~dw:inlM . f'llUtnOn Al.I-'A.\iistant ...... - ,.·--···--···· ·-·····-···-··· ..Oawn ll~·ird S51JlCIIOlllt.. Place No.I, Robert 0. segd , MotltgOrnary• 15th Admlnistrntivt,\mstMt for 1~rvgnm,_...... Obnt \\'ddon Votuntur l..lW)Tl1 l·'tolltamOlrcctor ...... tCrm 011\-cr Circuit.Ptnee No '2. wanooO 0.Yentill.&I, Monli,om~ • 15clt ProgramsStoetuy ·--,., ...... Htldi Al\'CI \'LPP"'1,gaL. - ..· --···--- ·---· ········-C,.... a..mbie,, Cltcul. Place No. 3. JamesE . w.ruam,, MontgOmqry • 15e, Ci!M Pl10a No. 4 , t-1.ichan:Ia Garrflt • i6Ctl arc...a.RC)y o Oirtttor r,( Communlc:ttJotU& RookJ ALABAMALA WYERS SERVINGALABAMA LAWYERS "The opportunity to present a topic on a CLE programis one whichshould be cherishedby any trial lawyer. It givesthe litigator the opportuniryto prepare and presenta legalpresentation to the toughest of all juries, fellow lawyersand judges. It has been of great benefit to me, and I recommendit to all." ThomasH. Keene Rushton, Stakely, Johnson& Garrett,P.A. Montgomery,Alabama Call ABICLEat 1,800-627,6514o r 205,348,6230 for program infom1ation. THt;ALABI\MALAWYER MAY 1996/ 131 with the work that the Task Force on Soto and Smalt Firms Ro/1',rtHuffaker. editor o/'The AlabamaLaw)'er. n.•aml/g •sot Is doing. They are heading towardrecommending to the board 11own·(oi,1r lhu phone) with John OICe1is,slate bar ~sident, of bar commissioners that wi, adopt a management assistance to see howhe felt about his !J('(ITat the bar. program similar to that in place In Ceorgia and North Caroli na. This would gi,.., us an in-house person al the state bar to gn,emanagement assistance at a \'Cl)' reasonablerate (the tele phone is free), but actually going to Rrms at reasona.ble rates AL: John, >'OU are about halfwaythrough }'Ourt erm. Whnt and givingassistance with things likllbilling, timekeeping, doc do you consider your main accomplishmenl.st o be so for? ument management, Ille management-just the general "nul.s 0: It's hard to say, because se,,eral of the things that we've and bolls" business side of practicing law, whkb a lot of got working have not come to fruition, but I'm very pleased lawyers in small Rrms don·t have access to. IL has been a 132/ MAY 1996 Tl IE ALABAMA LAWYER ,·ery successful program in Florida. Ceorgia and North Car --.'C?II.Eich panel now has one lay person. That seems to be olina. I know that the task fora is going lo reconunend lhal, working well. although this is still new. It's still in its first and I nm reasonablyco nfident that we'll adopt ii al some point. year, bul I think our disciplining procedure is moving along just flnc. ,IL: Who is the chair or that task force? The other charge to the lllsk force, on fee dispute resolution, is lo study ~Ussissippi's Consumer Assistance Program. Mia· 0: The chair is Paul Branlley. and Hal Albritton is vice sissippi started looking al a program lo dlsert grie-oances I.NI chair. I think Hal actually has taken on this responsibllity of "-ere management problems lo a management assistance pro the management nnlsta nce progr.,m. gram. In looking al thnt, Mississippi decided lo hire a lnwyer, whose full-time job is to handle any complnlnt which comes In A/,: When do you expectt he task force to render its report? if it's anything less than a formal grievance. He immediately 0: Al our April 12 meeting. calls the complainant and the la'")'er, and tries to work it out, just lo llllk through iL Maybethe la")-er Is not returning calls. ,IL: Are there other task forcesthat you ha"e appointedor that Maybe the lawyeri s not answering correspondence. Mississip have been active during your tenure Lhal you expect to receive pi's bar is very pleased with the program. so pleased with it, sorne meaningful reports frorn? thal lhey lhlnk they will beab le lo drop one person from their disciplinary staff, so they will have no net Increase in employ We ha,·e a Task Force on Fee Dispute Resolution. itnd 0: ment. That same task force is looking at the Mis.sissippl pro that same task force Is undertaking to study the llllssissippi gram lo see if some form of it may be workable, and I hope Consumer Assistance Program. Thal is co-chaiffll by Rodney they will report back on lhal before the )'C?ar•end. Ma.t of Birmingham and WoodySande rson of Huntsville. Al: Are there other task forces lhal you expect lo receive At : What is the chnr~e of that t;isk force? reports from? 0: Its charge is two-fold.II is thargedwith studyinga method 0: The Task Force on the Judiciary chaired by Bob OennlJ· through which fee disputes could be resol,-ed within the bar. ton is one of the most &cth-e task force.a that v.-ehave , )'ellr in A significant pe_r«nlage of our grie-•aocesare .-.ally fee dis and year out. He has inquired as to where we are on se.-eralof putes, and people who make a grievance are simply told that lhelr reports from lhe paat, particularly one having to do with lhls is a fee dispute, nnd the bar does not handle these. We Judiciale lection, a voluntary system of Judiciale lection reform. are trying to come up with a mechanl.sm within the bar itsell. They've recommended, and, of co11rse. the bar has adopted, a so that we can offer arbih-atlon or mediation. The loglslks position in f._·or of nonpartisan election of Judges. They\-e ha,-e been a problem. because most of these are pretty small recommendedthat the slllle go to the merit u lection of judges. disputes. we·,-ehad a recommendation from the task force. It The board of bar commiu ioners has not, and probably will is a very elaborate and --.-ell-donefe e dispute arbimUon (not nol, take a stand on that. but we've got his reports before us, mandatory but voluntary) procedure. Tony McLain (gener.,I and we are going to lake n look at them al our April meeting counsel) hasso me concerns about the workabilityof it. In many and sec whal. if anylhlng, we do there. of these disputes. we are talking about SI 00 or $200 or some· thing like that. We are now scrntching our heads 0\-tr whether ,LL: We just finished the special sasion that the Covtmor it's really workable lo centraliu all of them in Montgomery. called on tort reform. Summariz.?for our readers what position because so many are small. We ha,-e asked that Laskfor ce to lhe bar took on tort reform. consider this. Maybe the larger disputes should go lo Mont O: We took a position similar to our position in 1987. The bar gomery. Maybe we should have mechanisms wilhln the vari· ca.nnol take a political position, e.,Qeptwhen il comes to regu ous local bars for smaller disput.es. There is a need for it, but lation of laW)'el'Sor if ii alfeds the adminlstntion of justice. We we don't Sttm to ha,-e hit on the right formula yet. I hope v.-e did. in t 987, pass about six points essential to consideration will come out with a plan, if not this year. then at least the of tort reform legislation which we hJoe reiter.,ted this lime. groundwork will have been laid for ne,ct year. We can have At lcatt lwo of them In particular must be considered before something availableso if somebody c.,lls in a grievance that's anything Is passed. One Is that it is very sweeping legislation, really n fee dispute, we can say we do have the voluntary arbi that It affects everybody,and that everybody, sooner or later, tration procedure. and here's how you go about il if you wnnt is either potentiallya plaintiff or a dtfendant. Secondly. some· to t11ke ad\,anl11geof lhaL body does pay the price of all injuries and fnuds . whether it's the indl\'idualslhem sel,-es or lhe wrongdoero r socii,ty through Af,: You mention grievances.and. of course. in e,oeryissue of social programs. We reiterated those in a press releue when The AlabamaL awyer,, ve see disciplinary action laken against we got concerned about the t>ackagc which passed the !louse attorneys. Do you think the grievance process is working prop without debate and without a dissenting vote. It was so sweep. erly? Ing that we thought that ii needed mott study. We issued a O: It is worklng very well. The backlog is way down. Cen press release saying that whale--eris done should not be done trnl Norris worked \'el')' hard in gettlng the procedure working in that fashion. It duef\'C?Sstudy. il deserves debate, and we more effectively, and, of course, Tony grew up under Ceneral offered the bar as a resource lo help draR and perform other Norris, and he is continuing that. The grievance.\ seem about services, etc. Again. we are not taking a position for or against stfl!dyin numbers. nod they seem to be moving through quite caps, we are not taking a position for or against any sort of THE ALABAMALAWYER MAY1996 / 133 reform, but we are taking the position that whatever comes then emulate, or maybe a regional program. Maybeyou could down needs to be workable, and needs to be fairly debated have a mentoring program set up in central Alabama that and fairly considered. For example. they had a 30- 134/MAY 1996 TIIEA t.ABAMA I..AWYEH EXECUTIVEDIRE CTOR'SREPORT The Alabama Law Institute· "/{It Ain't Broke, Don't FixIt" or the past quarter century. the Alabama L:iw The membershipof the ALI is composedof a diversegroup Institute (ALI) has played a significant role ,n of 150bar members who are elected for fixedtenns-justices improvingthe law of Alabamaas the state's chief of the Alabama Supreme Court, judges of the courts of law reform agency. Although it is a legislative appeals.circuit court judges. federaljudges residing in Alaba IIagency. the ALI depends on the legal expertise of lawyers. ma, full-time law faculty members of the Cumberland and judges and law school teachers who voluntetr their lime. The Alabamalaw schools.all lawyerslicensed to practicein AJaba. ALIworks with a small but dedicatedstalf o( four: BobMc:Cur ma who are members of the l..egislature,and all members of ley. who has se,..,.edas director since 1975:Penny Davis,asso· the Institute Council. The Institute Council. which is the ciate director since 1979:and two assistants. Jackie Snrtain supervising body of the ALI. is composed of six practicing and Unda Wilson, who have been with the ALIfor more than attorneys from each congressionaldistrict as well as represen- 20 years. tatives from the appellate courts, the The ALI has gained a sterling reputa- Attorney Ceneral's Office, the Alabama tion for U1orough and efficientdrarting or State Bar. all law schools in Alabama. the major legislation. Indeed. though it Legislature,and Lhe Governor'sOffice. receivesan appropriationfrom the state's The high (lualily law revision work of general fund (approximately$350,000 in the ALI.for which it has been widelyrec l'Y 1995-96).the ALI could not be effec ognized and acclaimed, is staggering. th•e without committed volunteers. f'rom 1975 through 1995, the ALI has Because of the volunteer work by some Cacilitaled34 major law revisionsinclud 590 lawyersfrom across Alabamaseiving ing: AdministrativeProcedures Act; Bank· on 39 committees. the sta te's small ing Code: Criminal Code; Business appropriation Is leveraged into millions CorporationAct; UCC:revised Article IX; of dollarsof free legal work on important Probate Code; Uniform Transfers Lo law reformand law revisionprojects. Minors; Uniform Guardianship;Alabama The cre.,lion of a permnnenl law refonn SecuritiesAcl; Umitcd Liability Corpora agency was due largely to the efforL1of tions; Adoplion:revised BusinessCorpo Mowell J leOin.ind I lugh Merrill. l'attemed ration Act; and Uniform Condominium after the l..ouishtna Law Institute, legisla Keith B, Norman Act. tion was enactedin 1967 setting forth the Similar ly, during lhe same 20-year purposesand duties of the ALI and autho- period, the ALIhas completed 18 projects nzing the AlabamaStale Bi)r Boord or Commissionersto cre.ileit. and studies including: The Alabt1maCouemmenl Manual, (SeeSection 29.S.1. e/ seq.I Asstated in the enablinglegislation; Sixth. Seventh. Eighth and Ninth editions:flandbook for Tax "The general purposesof the AlabamaLaw Institute Assessors.Tax Q)llec/orsand license Commissioners;Sher shall be to promote and encourage the clarification iffs Desk Manual; Model Cilg Ordinances;f'amily Violence and simplificationof the law of Alabamato secure bet Study; Circuit Judges Trial Manual: Medicaid Study: and ter administration of justice and to cart)' on scholarly Study of TaxStructure in the St.ate of Alabam.1. legalrelli2rch and scientificlegal work." In addition, UieALI regularlyplans and hosts a number of TheAL I was rundedand beganoperation in 1969.It is housed training conferences including the l,egislalive Orientation in the law center on the Universityof Alabamacam11us. This Conference,the Probate Judges Orient.,tion,and an Orienta· locationprovides it access to the extensiveco llection of mntc lion for Sheriffs.These and II.$many other works have result rial al the law school library which is vital to its mission as a ed in a list of more than 100 titles publishudby U1e ALI. law reformagency. I am concerned, however, that the good and important THEAI.J\BAMA LAWYER MAY1996 / 135 work of the ALIcould S()Onend. Several legislators have indi impartial fashion in which the ALIconducts Its revisionwork. cated that lhc ALIshould be moved to Montgomery.have its A loss of credibility by this important agency could be its responsibilitiesmeshed with the LegislativeReference Service. death knell. or ha11ta different O\'ersightauthority. None of these purport Our bar playedan import.int role in the creation of the ALI ed changes seems Lo be appropriate or necessary.I have bun and therefore has a wluable .stakein its future. We should be familiarwith the 1,'0rkof the ALIfor more than 18 years and I proud of what the ALIhas accomplishedand c oncerned about ha,-e ne\'\lr heard a single criticism, only praise for its opera any changes that would compromise its credibilil)• or impar tion, \\'Orkproduct and personnel. Bob McCurlcyhas done a tiality. Although the expressionmay bea trite one, it certainly superlativeJob as its director. He has providedcompetent and rings true in this instance: ·I( it ain't broke, don"l lix iL'" I effective leadership for more Lhan lwo decades. The work encourage you LO let your 5lnte senator and representative producl of the ALI is highly respected and trusted because It know your feelingsabout the importllntwork of the Alabama has credibility. l believeany of the mentioned changes could Law Institute and its continued operation as an independent seriously jeopardi1.ethe ALi's independence and. thus. the and impartial law reform agency. PROFILE Pursuantto""' AlabamaState Bars rulesgoo,,mlnp the el«tfon of preslden/-eled,the followlr1gbiOll'l1Phlcol sJ.'l/lches are TJf'IJl•idedof lynn Robl!rtsanJackson and Dag Rou,a./achoo and Ro,,,,, trere the qu_a/ffyingamdldates for the po.~ilionof presi dcnt-f't«Iof theAlabama State Bar for the 1996-97term, amt the winner will=• thepresidcncgh1 Jutv 1997. Third Judicial Circuit Bar from mission (appointedchairpe rson by 1984-85, as vice-president from President I larold Albritton in 1990). 1985-86,and as its president from She also wasa member or the Task 1986-87.She ha.~served as bar com· Poree on Women in the Profession missionerfor the Third JudicialCir and nowserves on that committee. cuit since 1985, when she was Jacksonis a member of the Amer- selectedto take the placeof Alabama ican Bar Association.the Alabama Supreme Court Justice Corman State Bar. the American Trial Houston (upon his election to the LawyersAssociation, the Alabama AlabamaSupreme Courtl. She has Trial LaW)'frsAssociation, and the also seJ''td on lhe Permanent Code Third Judicial Circuit Bar Associa Lynn Commission(assisted in writing the tion. new Codeof ProfessionalResponsi She also serves on the board of bility): the Task Force on Facilities directors of her municipal and Robertson for the Alabama Stale Bar; The county librariesand her focal Unit tllabamal..aw11er Board of Editors; ed Way chapter; as a city allorney Jackson DisciplinaryPanel I for nine years; for Clayton,Alabama from t984-95; Lynn Jackson was born in Mont the Boordor Trustees of the Alaba and was selected as a11Outstanding gomery. Alabama.She has a home ma Law Foundat ion (one of the Young Womanor Americain 1982. in Eufaula, Alabama and a horse origina l board members); as the She is a regular speaker to schools farm in Clayton,and is a partner in board or bar commissionersliaison and local civic groupson law-relat the firm or Jinks, Smithart. Jack to the TuskPoree on Benchand Bar ed topics,and was recentlyappoint son & Daniel.Jackson receM:d her Relations;as the board of bar com ed to the BarbourCounty Personnel undergraduate degree from the missioners liaison Lolhe Unautho Board. Universityof Alabama.She attend rized Practiceof LawCommittee; as She is married to C. Thomas ed the University of Missouri the board of bar commissionersliai Jackson.an attorney, and they have School of Lawand graduated from son lo the Character and Fitness two children, Katherine Robertson Jones LawSchool. She was admit Committee;as a memberof the Vol Jackson and WilliamBorders Jack ted to the Alabama State Bar in unteer LawyersProgram: and as a son. Jackson and her familyattend 1981. member of the AlabamaState Bar St. James Episcopa l Church in Jnc.kson servedas secretaryof the Mandatory Legal Education Com- Eufaula. • 136/MAY 1996 Tl IE ALABAMALAWYER PROFILE firm which became Cleary, Lee. the University of Alabama in Morris, Smith, Evans & Rowe. Huntsvilleroundation, Board of Rowe practiced with that firm Directorsof UnitedWay of Madi unlil 1987, when he became a son County,and Board of Direc partner of Burr & Forman in tors of Volunteersof America.He I luntsville.He is in general prac is a graduate of HuntsvilleLead tice. l)'J>icallyrepresenting indi ership and now serves as its vidualsand small busines.ffl, chairman -elecL He formerly Rowe has served three terms served on the Board of Trustees on the board of bar commission of the Huntsville Public Library ers and on severalcommittees of (16 years), the Huntsville Board the state bar. including the of ZoningAdjustment (12) years. Dag Rowe MCLECommission and the Per state Board of Directors of the Dag Rowewas born in Athens. manent CodeCommission. He is Alabama\\'lldlifu Federation, and Ceorgia. on March 25. 1947, to currently a trustee of the Alaba Board of Directors of Ducks HenryC. Roweand VirginiaJack ma LawFoundation . Roweserved Unlimited.In 1978, he was listed son Rowe. His family moved to (or four years as an examineron in Outstanding Young Men In Alabama and Rowe grew up in the AlabamaState Bar Board of America. rural MadisonCounty, where his Bnr Examiners.From 1977 until Rowe serves as chairman of father was a school principaland 1982,he also served on the Edi~ OakwoodCollege's Capital Cam his mother a second-grade torial Board of The Alabama paign Advisory Committee. In teacher. He was educated in the laWJll!f. June 1995,he receivedOakwood publicschools of MadisonCounty Rowe is a member of the College's annual mstinguished and graduated from Lee High llunlsville Bar Association, Service Award. Rowe has also School in 1965. American Bar Association and received distinguished service Rowegraduated from the Uni lhe North Alabama Estate Plan awardsor presentationsfrom U1e versityof Alabama in 1969,where ning Council.He is a member of Boy Scouts of America, Volun he was a member of Omicron the AlabamaTrial LawyersAsso teers of America, and the Delta Kappaand Jasons, and was ciati on and the ATLA Public HuntsvillePublic Library. president of the College of Aru Relations Committee and Com Roweis an elder al First Pres and Sciences. He was listed in mittee 2000. He is a frequent byterian Church where he is a Who's Who in AmericanUniver speaker al CLEseminars and is a past moderator of the board of sitiesand Colleges. co-nuthor of the following CLE deacons and past clerk of lhe Rowegraduated from the Uni publications, "Estate Planning," board of elders. He has frequently versity of AlabamaSchool of Law Basic Legal Skills (1993), "Taxa been an adult Sunday School in 1972,where he servedas pRSi· tion in Divorce." Marital Law teacher. denl of the law school sludent (1976), and ·sub-Chapter S Cor Rowemarried MelissaHolliman body. In 1972-73, Roweattended porations,• Basic Legal Skills on August 25. 1979. They have NewYork Universily School of Law (1974).He is listed in Who'sWho two children,Dag, Jr. (15) who is wherehe receivedthe Ll..MDegree. In AmericanLaw. an Eagle Scout and interested In In 1973, Rowe began practice In civic and community ser guitar, and Anna (J 0), who is with lhe firm or Bell Richardson vice, Rowe is a member of the interestedin danceand drama. in Huntsville. In 1977, he and Huntsville Rotary Club (past Rowe's interests include farm- four other lawyers formed the president), Board of Trustees of ing. hunting, and fishing. • THEALABAMA LAWYER MAY1996 / 137 BAR BRIEFS • Alabamaattorney of lawyersof color and their contributions legal profession and advocacyfor diver Fttd D. Grayhas been to U1e legal profession.'"It also recognizes sity for the profession. They exemplify namedone of the recipi "their commitment to pave the way to the spir it necessary to con tin ua.lly ents of the American success for other lawyers of color and achieve excellencedesp ite the obstacles Bar Association'sFirs t commemorates the rich diversity that that they faced." It was said of Gray AnnualSp irit of Excel lawyersof color bring to the legal profes that, "His passion for attacking segre lenceawards. sion and lo society." gation has earned him an ho nored Cray, a senior part Judge BerniceDona ld, chair of the ABA place in American history." Commission on Opportuni ties for Gray ner in the Tuskegee For over 40 years, l're.d Gray has been and Monigomeryfinn Minorities in the Profession,which pre in the forefron t of the Civil Rights of Gray. Langford,Sap p, McGowen,Cray sented the awards, said of the seven movement-as Rosa Park's lawyerwhen & Nathanson, was honored during the minority attorneys receiv ing the she was arrested for violating lhe segre ABAAnnual M eeting al a luncheon Febru awards, "These recip ients exemplify gated seating ord inance on a Mont ary 3 in the Baltimore ConventionCenter . whal the award is all about-the high gomery city bus and as Martin Luther The awardcelebrates ''the achievements est achievement of excellence in the King, Jr.'s lawyer. • Barry A. Currier, associate dean of the Honorspresented at CumberlandSchool of Lawbanquet University of Florida United States Senator Howell Heflin "His contributions to the legal pro College of Law in washon ored in Marchby SamfordUni fession, the state of Alabamaan d the Gainesville,h as been versity's Cumberland School of Law nation are many. We willmiss his leg named dean or Sam· with its Lifetime Achievement Award. islativeskills and his wonderful sense fordUn iversity's Cum Heflin, who will retire in January of humor as he concludeshis career as berlandSchoo l of Law. Currierwill succeed after three terms in the Senate , Alabama's sen ior senator," said Currier received the honor during law Week Williams. Parham R. WIiliams, banquet activity. Cumberland Dean HeAin was reelected to a third U.S. who retires as Cumberland's Dean this Parham H. Williams presented the Senate term in 1990. Prior to his first month but will continue to teach in the award. election in 1978, he served eight years law school. The award recognizesindiv iduals in as chief justice of the Alabama Currier has served as associate dean al the legal profess ion who have Supreme Court Florida since l 990, witJ1r esp0nsibilityfor improvedthe quality of life for others Also at the banquet, Cumberland planning and execution of the college's over a sustainedpe riod. Alw1ini of the Year honors were pre academic program, faculty recruitment "Cumberlandis proud of its longasso sented to Sharon LovelaceBlackbum , and development, and serving as liaison ciation with Senator Henin." said judge, U.S. District Court. Northern with the legal profession and various Williams."H e has beena frequentvisitor District of Alabama, and Charles H. other committees. to the campus andhas always made hi m O'Brien, retired chief justice, Ten A political science graduate of the selfavailable to our swdents." nesseeSup reme Court • University of California at Los Angeles, Currier earned his law degree at the University of Southern Califor nia in 1971. He served as law clerk for the U.S. Court of Appeals for the Distr ict or Columbia Circuit during 1971-72. • The MagicCity Bar Associatioo, Inc. recently elected new officers. They are: President Raymond L. Johnson, Jr. Vice-President: Eric Fancher Treasurer: Tammy J. Jllootgomery RecordingSecretary: Vicky Bradley Correspond ing Secretary: Tamara (L lo R): SharonL. Blackbum. HowellHeflin , Charlesff. O'Brien. and ParhamH . IVfl/iams Harris Johnson Parliamentarian: Abdul KhaUon 138 / MAY1996 THEALABAMA LAWYER BoardMembers: Michael K.K. Ch oy Carolyn Shields WUliarnN. Clark,commander of the 87th Division(Exercise) and a partner Byron Perkins in the Birmingham!inn of Redden,Mills & Clark. was recently promoted to BinnlnghamBar Liaison: Robert Jones the rank of major general in the United States Army Reser\'e. Ratmond I...Johnson. Jr., the newly General Clark hasreceived awards recognizinghis service to the legal pro electedpresident. is wistant U.S.Attor- fession, including the Alabama State Bar's Award of Merit. the Walter P. ney for the Northern District of Cewin Awardfor Outstanding Service in Continuing Legal Education, and Alabama.I le also has been an adjunct the RoderickBeddow, Sr. Awardfor distinguishedservice In the area of crim professorof law at CumberlandSchoo l inal law. He is an elected Fellowof the AmericanCo llege of Trial Lawyers. of Lawsince 1989. He is a 1976 gradu General Clark is a graduate of the U.S. MilitaryAcademy. I le also holds a ate of I towardUniversity Lnw Sc hool. law degree from lhe Universityof AlabamaSchool of I.aw. • • Assistant United StatesAttorney (AU&\) J ames E. Phillip s was awarded the Department of Jus. lice Director'sAward for superior perfor mance as an AUSA. Ptllltips on March 8. 1996in Washington. D.C. Phillipswas recogniud for his skills and dedication in a long-term undercover operation involvingcomplex insurance fraud investigations.These inves tigations began in 1991an d, lo date, have result ed In the prosecution ormore than 73 individuals in the Northern and Middle districts of Alabama. Nq/(JrC11lflrU/ (Roi.) I.. Dn.'tllR THE ALABAl-lJ\LAWYER MAY1 9961139 ABOUTMEMBERS, AMONG FIRMS Birmingham, Alabama 35223. Phone cation of her officeto The Benson Build ABOUT MEMBERS (205)87().8655. ing, Suite 220, 182429th Avenu,. South, Scott Donaldsonannounces the open· LangeClarie announces the opening of Birmingham, Alabama35209, and that ing or his offi~ at Suite 520, The Finan· his officeat 505 N. 20th Slreel Sulb?1010, Nichael I. Fish has joined as an associ· cial Center, 550 GreensboroAvenue, P.O. Birmingham, Alabama 35203. Phone ate. Phone (205}871-6202. Box 2344, Tuscaloosa, Alabama 35403. (205) 322-1300. Killion&: Vollmerannounces a chang, Phone (205) 750-0098. Terry G. Hukheson announces his ortheir mailingaddress 10 P.O.Box 7807, Anne R. Stricklandannounces the relo departure from the DeKalbCounlv Dis· Mobile, Alabama 36670. The ph>·sical cationor her officesto 5330St.di um TTIICe trict Attorney's Office. His new address addresswill remain 2513 DauphinStreet. Parkway,Suite 250, Birmingham,Alaba is P.O. Box 637. 108 Alabama Avenue, Phone (334) 476-5900. ma 35244. Phone (205)733-1303. South. Fort Payne,Alabama 35967. Phone Pittman , Hooks. ~larsh, Dutton & C. BarlcffS tein, Jr. announcesthe open (205)845-8884. Hollis announces that Jeffrey C. Riclalnl ing of his officeal DeltaCenter. 23710 U.S. has become a partner. Officesare located Highway98, Suite D-2,Montrose , Alabama AMONG FIRMS al 1100Park PlaceTower. 2001 Park Place. 36559. The mailing address is P.O. Box North, Birmingham, Alabama 35203. I l8o. 36559. Phone (334)928-9597. Thompson & Carson announces the Phone (205)322--8880. G. Sage L)'Onsannounces his withdraw, relocation of their offices to 521 Mont Jaoecky, Newell,Potts. Hnre & Wells al from the firm of Lyons. Pipes & Cook. gomery Highway, Suite 300, Vestavia announces that Susan Gunnells Smith His new location is 51 TaconStreet. P.O. Hills, Alabama 35216. Phone (205) 824- and Ke,oinF. Masterson have become Box74 14,Mobile, Alab.ima 36670. Phone 0203. members. Officesare localed In Mobile. (334)470-0902. Campbell & Campbell announces the Phone (334)432-8786. Charles L. Miller, Jr. announces the relocalion of their offices to 718 Union Burr & Forman announces thnl ~lark relocationor his officelo 150Government BonkTower . 60 CommerceStreet, Mont M. Lawson, Nancy L. Carter and Harri Street, Suite I 000-A, Mobile, Alabama gomery, Alabama 36103. The mailing J. Hailcalahave become partners. and thal 36602. The mailing address ls P.O. Box address is P.O. Box 5018, 36101. Phone R. MichaelYarbro, Cary D. Tynes, Patrick 2232,36652. Phone (334) 433-5080. (334) 262-0232. G. Nelson, Edward ll . Chri, tinn, lforlan K. DavidSawyer announces lhe open DianneJ. Davisand Timothy B. Davis F. Winn, m, C. Gregory Burgess, Jerry ing of his officeat 4790 CascadeRoad. SE, announce the openingof Davis& Davis. J. Crook, n, Wendy L. Love, Catherine Grand Rapids, Michigan 49546. Phone Officesare l ocatedal 5 LeeStreet. Alexander A. Lo\-c.less,Shannon G. Marty.and Anna (616)975-3193. City,Alabama. The mailingaddress is P.O. L. Spencer have become associatedwith Richard H. Ramsey, IVannounces the Box1778. 35011. Phone (205) 329-8100. the firm. Officesare located In Birmlng. ham, Atlantaand Mobile. relocation of his office to 313 N. Foster Brown& Turner announces the open Street, Suite 6. Dothan, Alabama36302. ing of new offices at 304 S. 5th Street, Lloyd, Schreiber & Cny announces The mailing address is P.O. Box 6595, Gadsden, Alabama 35901. Phone (205) that DanielS. Wolter, Stephen E. White 36303. Phone (334)792-25S3. 546-1714.Birmingham offi= are localed head andSt uart Y. Johnson havebecome Joseph Robert Kemp announces that at 211 22nd Street. North. 35203. Phone members. Offices are loated at Two Perimeter Park, South, Suite 100. Birm he is no longer with the firm of DavidP. (205)320-1714. ingham, Alabama 35243. Phone (205) Shepard. Hisnew address is 1601Cogswell James MeMnB ums. W. Grego,yBiddle 967-8822. A,'i!nue,Pell City,Alabama 35125. Phone and Aleda Hilliard.Smith of )!el Bums & (205) 338-1170. Associates announce the relocation oi Timo~• L. Dillard.S tC\'allK. Cocnee St.erling L. DeRamus announces the their office lo MedicalForum, 950 22nd and LawrenceT. King of Dillard & Fer openingof his officeal 2000 First Avenue, Slreel, N.. Suite 605.Birmingham, Alaba guson announce that with the in,-estilure North, Suite 708. Brown-MarxTower, ma 35203. Phone (205)731-7777. of the Honorable R.A. Ferguson. Jr. to the position of Circuit Court Judge or Birmingham, Alabama 35203. Phone Lisa Naas. formerlya corporate attor (205)322·8066. the Tenth Judicial Circuit of the State or ney for Mid-SouthCredit Collections, Inc., Alabama,the name of the nrm has been Pamela J. Goodenannounces the relo· announces that she is now working for changed. The new name will be Dlll~rd. cation of her officelo 1138S. McDonough Westinghouseas the senior contract rep Gooue & King.Offices are locatedat The Street, Montgomery,A lnbama36 104. The resentativefor WestinghouseRemediation Massey Building, Suite 600. 290 21st mailingaddress is P.O.Box 11208,36111. Services. Her 110\" address is 261 Eisen Street, North, Birmingham, Alabama Phone {334)834·5335 . hower Lane, South, Lombard, Illinois 35203. Phone (205)25 1-2823. RobertW. Gwin,Jr. announcesthe relo· 60148.Phone (708)26 1-7900. c.1tionof his officeto 2102-DCnhnba !load, Angela C. Caine announces the relo- Co11li11ued on pt1ge142 140 I MAY1996 THE Al.ABAMAI.A \\IYl ~I! Mtdue•s LAWOHDIS C- MI CH I E'S"' AI,ARAMA CODE /11p,int , mz CD-ROM, or onli11e hms more than one way10 comprehensive indexyou'w ever Youcan alsoust Michie's" do legalreseard1 . r-onuna1ely, seen. And b001useMichie updates AlabamaCode on lhe LEXIS' online T1here'sstill one w·ay 10 111151 1he code lessthan 85 daysafle r seJVice. For1 he mos1currem case your research. Tha(s becauseyou rnn receivingacts rmmth e legisla1ure. law, Michlc'sexclus iveO nline research Michie's' AlabamaCo de, you are 3.1$uredor 1hefo5 11'S1code Connection· giVc"'SMlchie 's" Lawon 1heessential siaruiory publlc.11ion servicein Alabama. Disc· usm immediJle accessIO a for laW)'l?IS.using lhe mediumtha1 Ifyou prefercompu1er-.issis 1ed specfalLEXlS Update file for one best fiis 1henttdsof)w and )Wr research.)'OU willfind lhis same low,fixed 5Ubscription price prnctice- book.CD,ROM. or edi1orialrxpenilil! built imo onllnewvice. Micbie's· Alabamaa.a,~ on Oise " /11sl1ort, )'OIi ca11 fi11d S1111UI01)' If you are mostcomfort1ble wilh Thiseasy,to,leam CO- ROMresearch bookresearch, yo u willfind Michie's S)'Stern,l)O\'ffi.>d by the indusuy ,mrltoril)' 111rJr s mediumof ro11r famousedi torial quality built 11110 siandanlFOLIO"' search engine. clioice./11s r be cerwi11yo11 are t.'VCI)'1iage or Michie's· Afobama puisa comple1c Alab,tninl,1w Code. Michil"sedl1ors are 1101o nly librarylit erallyat your fingenips 11s/11griteA l11b11111nscaturory laW)'l!rs- Lheyare specidlistsIn - indudingrnse law.co un rules, preparingmeaningful anno1ations. lhe emireMlchle 's"Alabama Code. autltority)'OIi cantrusr. insig)ufulnotes, and lhe most and more. Topit* 1hi- ng/11aprion, can Mi M.lchW., L.tw- OJ.c ••id011U1W Conn«uo,i ,,r ".-drmarl.l CIIThr Mld\lt Compo, U.XII••Ml Hl:Xls-•r ~ ttalkma1i.. ultk""*I hmn f-tQfllfflla Inc. J.OUO111 11MirJIUlkoJ llfofti IJ:woyjr,-~'" hll • l•'HI Mlrhlt. • JlviQOn G{~ r.htviltf Int. All tt,Jtl111I~ About Memb ers, Among Firms locatedal 200 lnltrslale Park. Suite 237. Schoel, Ogle, Benton & Centeno Co11ti11uedfrom f)QJl{! 140 Perry Ifill Ro.,d, Montgomery,Alabama announces that Da,•id O. Upshaw has 36109. Phone (334)270-8291. becomea memberof the firm. Officesare Cabaniu, Johnston, Gardner. DlllDll Pierce, Carr, Alford. Ledyard & Latta located al 600 Financial Center. 505 N. & O'Nealannounce& th.1tRichard E. Da\is announces th.1tCaroline ll 'elli Binds has 20th Street, Birmingham.Alabama 35203. has becomea partner. Offices are located joined the firm. Officts are localed al Phone !205)521- 7000. al 700 Park Pla<:eTower, Birmingham, 1110Montlimar Dm--e. Suite 900. Mobile. MaryAnn Staclchou.se.formerly of FIO)-d, Alabama35203. Phone (205) 716-5200. Alabama36609. Phone (334) 344-5151. Keener,Cusim.,no & Roberts.announces David M, Dunlap announces the for Dominick, Fletcher, Yeilding, Wood she is now a deputy law director in the mation of Dunlap & Russell. Officesare & Lloyd announces that Judy Bateman O(OO? of the Knox County LawDirector , locaredat 1300Rlvcrplaoe Boulevard, Suite Shepurn has become n member. Offices Kno,cville,Tennessee. H er new address is 601, Jacksonville,F lorida 32207. Phone are locatedat 21211llghland Avenue, Birm 400 MainStree t, Suite 612. City-County (904) 346-4480. ingham, Alabama 35205. Phone (205) 13uilding. llnoxville, Tennessee 37902- Steptoe & Johnson announces that T. 939-0033. 2405. l'hone (423)2 15-2327. Robert Rehm, Jr. hnsbecome associated ,\lark C. Monl:lclannounces that Kath Feld, Hyde, Lyle & Wertheimer an with lhe fim,. Orticesare localed in Wash leen A. Brown, formerly of Devereaux& nouncesthat J. Fred Kingren has joined ington, D.C.,Phoenix. Arii:ona and Moscow, Associates.has become an associate.Offices lhe firm.Offices are locatedat 2100South Russia. ha,-ebeen re.locatedto 5748 Carmichael BridgeParkway, Suite 590, Birmingham, Band, Arendall, Bedsole. Crea\'es & Pa.rkway,Suite E. Montgomery,Alabama Alabama35209. Phone (205) 802-7575. Johnston of Mobileand Tingle, Walson 36117. Phone (334)2n-1s2S. Cn,gory O. Griffin, Sr. announces his & Bates of Birminghrunannounce that Smith, Spires & Peddyannounces t;iat departure from the Offi<:eof the Attorney they wlll merge the practices of the LWO Thomu Coleman.Jr . hasberome a mem Generaland th.1the is the newly-appoint firms, and the new name of the firm is ber. Officesan located at 650 Fmancial ed general counselfor the AlabamaBoard Hand Arendall. Offices are located in Center, 505 N. 20th Street, Birmingham, of Pardons and Paroles. His new mailing Mobile, Montgomery,Birmingham, and Alabama35203. Phone (205)251 -5885 . address Is 500 Monroe Street. Lurleen B. Washington,D.C. Adama& Reese11nno unces that William WallaceBuilding, Montgomery, Alabama W.N.Walson, Teny CIiiisand Sheri W. E. Pritchard, Ill has become a partner. 36130.Phone (334)242-8710. Carveranno unce the rormationo r Watson, Officesare loc.itedin NewOr leans, Baton Bennelt L. 8eardfn nnnounces he has Cillis & Carver,a successor to Watson& Rouge,Mobile, I louston and Washington. lert Parsons & Sutton and is nowwith the Walson.Offices are localedat 305 Grand D.C. Ofnce of the District Attomey in Tusca Avenue,Soulh, l'ort Payne.Alabama 35967. Rl\oes& Peterson announcesthat Roger loosa,A labama. Ilis new address is Office Phone !205)845-0410. C. Foster, Eugenia HofammannMullins of the Dislricl Attorney, Sixlh Judicial CliffordL Callis,Jr. annoW1Cesthat Bar and Rhonda Pitts Chambers havebecome Circuii of Alabama,410 County Court bara LeeBarnett has joined the firm. Offices members. Offices are located at 1700 house, Tuscaloosa.Alabama 35401-1894. are locatedal Church Street Professional FinanclalCenter, 505 N. 20th Street.Birm Phone (205)349-1252. Center, IOI Church Street. RainbowCity, ingham, Alabama 35203. Phone (205) F'ranct4 l'llrker Tankersleyhas accept Alabiima35006.Phone (205)442.6102. 328-8141. ed the positionof complianceofficer \\ith Crownover. Coleman & Standridge Lange, Simpson, Robinson &: SouthTrust Bankor Alabama.Her mailing announces that W. Eason Mitchell has Somerville announces that Neil Richard address is P.O. Box 2554, Birmingham, become a p;,rtner. Officesare located at Clement, E. Berton Spence. WllliamB. Aiabam335209. Phone (205)254-5543. 2600 7th Street, P.O. Box 2507, Stewart, David J. Duke. and James C. Ford & Associates announces that Tusc:aloo!;a,Alnbamn 35403. Phone (205) Penningtonhave becomepartners. Offices Bradley W. Cornett has become associ 349-1727. are locatedin Montgomery,Birmingha m ated wil h the firm. The address is 645 Jack B. Hinton, Jr. and PhilipS. Cidiere, and llunt sville. Wnlnut Street, Suite 5, P.O. Box 388, Jr. announce the formalionof Cidiere & Welsh & Klitz announces thal Philip Gadsden. Alabama 35902. Phone (205) Hinton. Also, Steven K. Herndon has Dale Se.great, Jr., formerly law clerk to 546-5432. becomeassociated with the firm. Offices Judge Marlon T. Bennett of the United Berkowitz, Lefkovits,Iso m & Kushn are locatedat 60 CommerceStreet, Suite States Court of Appealsfor the Federal er announces th.1tAndrew J. Potts, Wal 904, Montgomery,Alabama 36104. Phone Circuit. has joined the firm. Officesare ton E. Williams, Ill and NancyC. Hughes (334)834-9950. located al 120 S. Riverside Plaza, 22nd have ~come members of the firm and Ted L Mann411d Cary J . Boneannounce FlooT, Chic.-igo,Illinois 60606. Phone that N. Andrew Roleostreich has berome the formationof Bone & Mann.Offices are (312) 655-1500. an associate.The address is 1600South Trust Tower, 420 N. 20th Street. Birm located at 756 Walnut Street, P.O. Box Donna Wesson Smalley and Lauren ingham, Alabama 35203-3204. Phone 8433, Gadsden, Alabama 35902. Phone Wilson-Carr announce the formation of (205)328-0480. (205)543-1244. Smalley & Carr. Officesare localed al 601 Taber & Folmarannounces that A. Kelli Creensboro Avenue, First Floor Alston Richard Breibart and David N. Llcht Wise and Michnel Rountree have joined Building, Tuscaloosa. Alabama 35401. ens te In announce the format ion or the firm in the new Montgomery office, Phone (205) 758-5576. Co11//11ued011 page 144 142 / MAY 1996 Tl-IEALABAMA LAWYER 0 2!!!.c::rWe knowyour r--- --·- ·-- ·-·------, -- ..mr time is va luable, EspeciallyFor sowe 'll comeright to thepoinL Did you know your membership AlabamaState Bar Members in theAvis Association Program enlftles you to a hostof special Avisseivices and discounts that can saveyou lots of time andmoney' Forinstance, you're eligil>le lor savings ol IO" offA\'is SupeNalueWeekly rates, 5% off promotionalrates and 5 % off AvisM ini-Leaserate long-term renlals at all panicipating locations.S hop around. You'llfind Avis h assome of ~1elowest miesin the industry.And with th e AvisWfaard System. you ca n receiveour best available rate when you menlion your Avis WorldwideDiscoun t (AWD) number.A530100 . Avisalso has exciting, new innovative seivices designed to keepyou on themove. AightCbeck• offers you up,to-lhe minuteflight information right in ourcar return loL complete ...... ______witha computerprint-OU! at major airpon locations. And RouteNavigator-: a\-ailable at selectairpon locations, is a .\'l'OI.As.:111'1 po1nt~o,pointdirections s;'Slem that provides )'Ill.I withdirections l it':"',,,,.,. 10multiple destinations on a computertouch-screen map and : printsout your requested inlormalion in secondsl ! I Isn'tit a relier 10k nowthat Avis moves just as fasl as ~'Ou do? I I AVI.S. I For moreinformation and reservations, call anemployee-owner I of Avisat: 1-800-831-8000. Andr ememberto mentionyour Avis 'I Worldwide Discoum( AWD) number.A530100 . ' L------' ------J THEALABAMA LAWYER MAY1996 / 143 About Member s, Among Firms localed at 400 Title Building. 300 2lsl L. Acoff,Kimberlyn P. Malone and OUie Continuedfrom page142 Street, North, Birmingham. ,\labama W. Coggin, IIJ hove joined the firm. 35203. Phone (205)323-3900. Officesare located at 401-403 Madison Breibart & Uchtenstein. Officesare local· Armbrechl.J aclcson,DeMouy. Crow e. Street. Huntsville.Al.lb.vna 3580 I. Phone ed at 651 Beacon Parkway, West, Suite Holmes & Rct\'e&announces that Cfif. (205)536-1199. Phone US, Birmingham,AW>ama 35209. fonl C. Brady and Richan! \Y. Franklin Enslen & Johnston announces that (205)945-2202. havebe.come members. Offices are locat Patrick D. Pinkston has becomea mem Ughll'oot,Fnnldin ellWhile announces ed al 1300 AmSouth Center. P.O. Box ber of the firm.The new name is Enslen, that William H. King, m and WilliamS. 290. Mobile, Alabama 36601. Phone Johnston & Pinkston. Officesare local· Cox, lU hnve become members of the (334) 405-1311. ed al 499 S. Main Street, Wetumpka, firm. Offices are located al 300 Financial Johnstone. Adams. Bailey,Gor don & Alabama 36092. Phone (334) 567-2545. Center, 505 20th Street. North, Birming Harris announces that Robert S. Frost Woodall & Maddox announces thal ham, Alabama 35203. Phone (205) 581- has become u member. Officesare locat Thomag A. Woodallh as been appointed 0700. ed al l 04 St. Frnncis Street. Royal St. a circuit court judge For the 10th Judi Taylor & Smith announcesthat Aimee FrancisBuilding, Mobile , Alabama36602 . cial Circuit, and the firm name is now B. Bog.mlhas be.come associated with the Edward 8. Parker, Tl and H. Dean Maddox. Austill & Parmer. Officesare firm. Officesare toc;ited at 300 N. 21st Mooty, Jr . announce the formation of located at 3821 Loma Rood,Suite 101, Street, 600 Title Building.Birmingham, Pari 144 / MAY 1996 TIIE ALABAMALAWYER BUILDINGALABAMA'S COURTHOUSES BULLOCK COUNTY COURTHOUSE Bg SAMUEl ,L RUMORE.JR. land of the Black The foll owing continu es a hi storg of Belt region. S0u1l1 Alabama's countg courth ouses-their of the ridge is the origins and some of the people who con sandy soil or the tributed to their growth. The Alabama Wiregrass region. luwger plans to run one counfg's storg Within the county, in each issue of the magazine. If vou the ridge marks the haL'e ang photographs of earlg or pro watershedboundary Sl!lll courthouses. please forward them of four river basins. lo: Samuel A. Rumore. Jr .. Miglionico & Streams flowingoff Rumore, 1230 Brown Marx Tower, the ridge enter the Birmingham, Alabama 35203. Coosa-Tallapoosa, Ch atta hooc hee, Conecuh, or Pea Rivers. BULLOCK COUNTY The source of water on the ridge gave the county's ullock Countywas the 55th largest town its county establishedin Alaba name. When set ma. Like 15 other Alabama llers began moving mcounties, i ts existencebegan \.. into the area shorlly aner the Civil War. Yet, its significant \ after the Treaty or history began much earlier. 1832, they original• The area that is present-day Bullock -; :;::;;;;:~ ly named the princi Countyis localedin the extreme south· !! ~ pal settlementSpring em section or the ConnerCreek lndia.n Camp because of lands. After the Treaty of F'ort Jackson F",rst&,p/lSl O,urd, ol lm10" ,Si,,irigs' basm>mt audJ/(l(lumMrml as the the underground in 1814, the Indians ceded the western ,,.,,., Bull«* ea.m,vCourt Springsthat provid portionof the future county to the Unit ed them water. In ed Stales. This territory became part of 1835 the residents Montgomery County. established in significant Indian activity lo take place discoveredthat springs on the north side 1816, and Pike County, established In within the confinesof present-day Bui· of the settlement were actually united 1821. In a second treaty. the Treaty or lock County was a battle fought near 1vith springs on lhe south side, forming Cusset.1or 1832,the Indians gave up the Midwayin January 1837. This engage one undergroundspring. Thus the com eastern portion of the future Bullock ment preceded the Indian removal to munity on Chunnenuggee Ridge County. This portion was divided the West and marked the last battle acquired the name Union Springs. The between Barbour County and Macon white men fought with Indians on town. located al that lime in Macon County which were both created on Alabamasoil. County,was incorp0rated in 1844. December18 , 1832. Present- THEA IABAMALAWYE R MAY1996 1 145 the ideals of a cultured society.1\oo of U1roughoutU1 e region for many years. ,1ame Bullock to memorialize Edward th eir rirst proj ects were to bui ld a The fair and a portion of the garden C. Bullock. female collegeand a school for boys on havebeen revivedtoday. Edward C. Bullock was born in Chunnenuggee Ridge. The citizens took By 1858 Union Springs was still a Charleston, South Carolina, on Decem pride in these institutions. small place, numbering less than 100 ber 7. 1822. His faUierwas a merchant Perhaps the most significant e." Bullock CountyCourthmm March 6, 1847. On Uiat day a group or Girard Railroadwas completed Uirough men and women met to establish the the town. Its future significancebecame Chunnenuggee Horticultural Society. more certain with the arrival of U1erail On March 31. 1847, the group passeda road. Later, a second line, the Mont resolution to establish a "public gar gomery and Eufaula Railroad. would den". A five-acre plot at Peachburg pass Uirough Union Springs, making it became Alabama's first public garden, a rail center with freightand passengers and the ChunnenuggeeSociety became movingin four directions. one of the first horticultural societiesin After the War Betweenthe States, the the South. economic and social conditions in the Each year the organization held the area were at a low ebb. Roadconditions Historic,nark er at BullockCounty CoutJJ,ou3e Chunnenuggee May Fair. Activities were deplorable. During the rainy sea included exhibitions on gardening, the son, roads were so bad that the resi on December23, 1861, at the age of 39. awardingof prizes, and concerts. People dents or the area were cut off from their Bullock's life and service to Alabama came from al I over. drawn by such respective county seats of Tuskegee, were cul short. His former partner, attractions as the garden's ··1.over's Montgomery, Troy, or Clayton. Poor Senator James L. Pugh. said of him: Knot" maze. On the grounds were a roads were the single most significant "He was Uie best organized man I ever garden house and an exhibition house factor that led to the creation of a new knew. His temper and taste were per which contained a large salon, a dining county carved from portions of Macon. fect. His whole nature was genial, room, a hall. and an open pavilion.This Montgomery,Pike, and Barbour coun refined, and genlle. His mind was event, held in a rural Alabama locale. ties. The new county was establishedon remarkable for ils activityand brillian was quite popular with citizens December 5, 1866. It was given the cy. His personal integrity and devotion 146 / MAY 1996 THE ALABAMALAWYl~R to principle, duty, and truth were \'fl>' priate pomp, ceremony, and Masonic After the ceremonies, the gathered striking. He was a fine lawyer and an ritual. citizens processedto the MasonicLodge able advocate; and his high personal Coins, newspapersand other artifacts where the best in genial hospitalitywas character. honorable nalure. and irre were placed in the cornerstone. Mem dispensed,according Lothe accounts of sistible wit and elegance made him a bers of lhe Bullock County Bar wrote the day. lawyer and statesman of as high messages on their business cards for The courthouse was ready for occu promise as any man who ever lived in inclusion.Tu·o e,camples follow. pancy in September 1872. A newspaper Alabama."The Alabama Legislature of of that Limedescribed the ediliceas fol 1866agreed with that wessmenl and lows:"Symmetrical in design, the build named the new county established in ing is a two-story red brick structure southeast Alabamafor ColonelBullock. with an end gable roof. The main fea The Act creating Bullock County ture is the three-story Second Empire named James T. Norman,Joe l T. Craw style towers nanking the front entrance. ford, and Malachi Ivey as commission· The lowers topped with classical ers to hold an election for the selection mansard roofs form a recessed portico of county omcers and a county seat area on both the first and second Ooor. location. The election look place in The olfices open from a central hall 1867 and Union Springs became the with the courtroom located in the rear county seat. Union Springs is centrally of the second floor." locnled in Bullock County: In addition, The Second Empire style was popu its position on the railrood line signifi larized by French architects during the cantly enhanced its campaign to reign of Napoleon Ill, 1852 to 1870, and become the county seat. was much utilized in Americauntil the The next task for the new county was JS80s.The Executi,-eOffice Building in lo lind a place lo conduct public busi Washington D.C. is an exampleof this ness. The First Baptist Church of Union style. In Alabama, the Coosa County Springs was chosen. fl had been estab Courthouse was originally designed in lished in 1849.Its original frame build the Second EJJ1pire slyle, but later ing dated from 1850. And its present changes have altered some of its fea brick structure was origina lly con tures. structed in 1860. The Committee on Solffoldifl(I at courlh- I« rrpalrs du• to Hur· Another comparision between the Renting Church Property reported to rK"OM()pul .,_ Bullock County Courthouse and the the membershipon April 6. 1867, that Coosa County Courthouse is that nei it had rented the church's basement U1erhas a court square. Most pre-I900 auditorium to the county for use as a courthouses were eithe r built in the courtroom. Certain repairs and alter middle of a traditional court square or ations had to be made. and the county they face an open area or court square. agreed to pay for all improvementspro Tht$e two courthouSC$were built flush vided that their cost would serve as against the sidewalkin their respective r,nL On these conditions, the county towns, detracting somewhat from the and lhe church entered Into a rental concept that a courthouse should be contract through the ycnr 1868. One the center of attention in D community. local histor ian humorous ly claimed Nevertheless, the Bullock County lhat u,e county government headquar Courthouse is a well·preservede,cample ters. though located underground, had of a post-bellum courthouse. Due to the advantageof being in a temple, and inflation, the final cost of the building the probate judge had the church over s,,/c,,_ In •vull ,mm at tlw Bullodt<:,,uni, OJurt was approximately$60,000. This struc him, whether or not it was behind him. ture is an architectural treasure for a In November 1867, Thoma.s Pullum small, ruYalAlabama county. It was a and his wife deeded to the Bullock On the card of H.C.Tompkins: "To the symbol of community pride when con County Commission a lot for a court fulur~ generations, greeling. You may structed and remains one today. hou,e and jail. M.M. ·rye of Union have advanced far beyond us in litera lt should be noted that the lirst pub Springs was selected as architect and ture, in science,and in art, but you can lic building in the new Bullock County builder. The count)' initiallyappropriat nMr excelus in courage on the baUle was the county jail completed in 1868. ed $31,000 for the courthouse con field,and in patienceunder suffering.· This building served the county for struction: however.the project did not On lhe card of Colonel R.H. Powell: almost 30 years until the second county get underway for several ye.irs. f'inally, "To future generations. greeting. f'or Jail wasbuilt in 1897. This structure is In August 1871. lhe cornerstone of my sentiments see the card of my urchitecturally significant in its own the courthouse was laid with lhe appro- brother. Henry C. Tompkins.'' right. Tl IE ALABAMALAWYER MAY1996 I 147 The 1897 jail is located behind the among other factors, this project never from the Alabama Historical Commis courthouse and was built by the Pauley materialized. sion for a Main Street Revitalization Jail Company of Montgomery. It cost On October 8, 1976, the Bullock Project. The result was publication of a $7,250. This three-story jail is unique County Courthouse Historic District Guide for Downtown Union Springs, because of its castle-likeappearance. It was entered on the NationalRegister of Alabama. This book gave specific pro was constructed in the VictorianGothic Historic Places. The courthouse togeth- posals to each property owner on style. The dark, red brick strut• restoring and prese,ving the his ture has small. square-shaped toric properties. brick turrets on each of the four "'I This project also focusedatten- corners topped with spiked metal tion on the maintenance of the caps. The gallows and trap door courthouse. In the early 1980s for hangings remain on the third water-damaged plaster in the floor. This building deteriorated courtroom was replaced after over tl1e years and was replaced roofs and leaking gutters were by the third county jail which repaired. The two third-noor was completed in 1984.The old rooms in the towers were also jail building is leased by lhe Bui· cleaned and made available for lock County Historical Society, storage after the roofs were which may one day establish a repaired. local museum there. Bullock County Commission The exterior of the Bullock Administrator Sylvia Dismukes County Courthouse has changed related two interesting incidents little since it was constructed. concerning a nasty problem in However, there have been reno the courthouse. F'or years the vations and repairs made to the building was infested with bats OldBullock cou,ifyJoil - bui/1i,i 1891 building over the years. In 1954, and pigeons.Their droppings ere· the County Commission autho- ated a foul odor. At one point the rized $100,000 to remodel the county purchased a 88 gun to courthouse. The contract was eliminate the pest problem. This awarded to Henderson, Black, purchase was questioned by the and Green of Troy. The electrical Slate Examiner of Pub lic sub-contract went to Floyd Accounts as a personal expense, Plumbingand Electrical Compa but was approvedwhen the exan1- ny of Union Springs. The archi iner learned the use for the pur tect was Carl Cooper of chase. Montgomery. Later. it was discoveredthat the This project included the con bats in the courthouse were of an struction of side wings on both endangered species. They could sides of the building that blend· not be killed. Therefore, accord ed with the architectural design ing to Mrs. Dismukes, the county of the structure. These additions used ultrasonic devices to repel are one-story in height and were the creatures. Ultimate ly the built to house the tax collector ·, remaining bats had lo be removed and tax assessoroffices . by hand and set free in another Other improvements included Jail /1897)following ox1tm11l renouation location. The clean-up in the new wiring, a new heating plant, courthouse of the bat and bird a safety vault for storage of refuse that had accumulated over county records, and sand blasting of the er wilh 46 other buildings locatedalong lhe years was a monumental undertak· exterior. As an aside. the vault room Prairie Street in Union Springs were ing. was built around a large iron safe.This recognized for their historical signifi In 1984, the historic marker in front safecannot be removedwithout tearing cance and because , together. they of the courthouse was officially out a wall of the vault. retained the appearance of a late 19th unveiled. One of the key supporters of In 1972, a proposalwas made to build Century county seat town.This designa the courthouse preservation effort was a new courthouse and jail complex and tion heightened interest in preserving District Judge Dwight 1-lixon. He lo convert the old courthouse into an the historic character of U1edistrict. summed up the sentiments of the citi· office building. The architectural firm Another significant event took place zenry on that occasion when he made of Sherlock.Smith, and Adamsof Mont in the 1980s when the Bullock County the followingremarks: "Preservationof gomery submitted plans for the project. Planning Commission obtained a our courthouse is an ongoing responsi However, due to high cost estimates. matching survey and planning grant bility which lhe County recognizes 148 I MAY1996 THE ALABAMALAWYER must be continued without undue The newly renovatedcourt .house inte included repairs to the leaky roor and expense ror the present. and without rior represents a remarkable Lransfor· the replacement or matching bricks to creating an expensiveburden or restora mation from the previous interior. The restore the structure's historic appear tion or replacementfor our fulure gen courthouse is thoroughly modem; how ance. Cost or the repairs was $50,000, erations." ever. in recognitionof the past, enlarged with the county only paying the $2.500 Unforlurntely, Judge Mixon did not historic photos of Union Springs and Insurancedeductible. live lo see the complete remodeling or Bullock County grace the walls. All The 1871Bullock County Courthouse the courthouse. The county awarded a still stands today in Union Springs. IL contract to Goodwyn. Mills, and can se~-eas an excellentexample or suc Cawood, Inc .. architects from Mont cessful historic preservation for other gomery, lo design Interior renovation communities. l-lowever. to be success plan$and lo make the courthouse hand ful, asev idenced by the Hurricane Opal ic.ippcdatcessible with the nddilion or rc1,airs,the process of preservationmust an elevator. The building contrad was constanUycontinue. awarded lo Construction Consultants, The author expressesthanks to Union also or Montgomery. The cost or the Springs attorney l.ynn W. Jinks, Ill; project was SL2 million. Funding came Sylvia Dismukes, administrator or the from a one million dollar bond issue BullockCounty Commission;and Annie where repayment was secured by sales Mae Turner, formerly or the Bullock lax monies pledged until November Counly Development Authority, for 2010.Also, the county nppliecl$200,000 their help with informnllonused in this lo the project from a CommunityDevel HISTORICAL article. • opment Block Grant awarded by the UNION SPRINGS.AL. State of Alabama. "PIESUVATIOPI Of THE tASf While the courthouse renovation took tLANNIIIC FDA Tlil ruruu• Sources: Collections And Recollec place,all county officesmoved LO the old tions of Bullock County 1/istory, Bul CowikeeMi lls building on Abercrombie lock County Mistorical Sociely, 1977; Street. The county had purchased this BullockCoun ty Courthouse,The Coun properly many years before. This struc ty Capitol. Annie Mac Turner (draft ture servedas the Bullock CountyAnnex manuscript);History of /he FirstBaptist Building for approximately 13 months Churcliof UnionSprings. Alabama. £. until the project was completed s.Pugh, 1949. The ribbon-cutting ceremony for the n.-wlyremodeled courthouse took place on Sunday. May 17, 1992, at 2 o'clock omces pertaining lo the courts and the COLLECTIONS p.m. A crowd estimated al 500 persons courtroom are located on the second SOFTWARE? heard the comments or John Will noor. The probate judge, shulfr, rev Waters. then chairman of the Count)• enue commissioner,and board or regis Commissionand later probate judge oi trars are located on the main noor. The Bullock County. The honor or cutting county commission cou1troom. proba the ribbon at the ceremonywas given lo tion olfices, Soil Conservation SeNice, Mrs. Darlene Mixon. widow or Judge and the MistoricalSociety office are all Mixon. who had cared so much about locatedIn the basement. OneTi meDa ta Entry the traditions or the courthouse and When l-lurricaneOpal pllSsedthrough IntegratedTic kler Syslem workedto save iL the county on October4 , 1995.rain and Ru1om.it1cF!!it.ilc~lation winds estimated al 100 miles per hour WordPerl'eclLWord Interface pelted the courthouse, causing some Samual A. obvious water damage. Further. appar· COLLECT-MAX"' Aumote, Jr . entl)• due lo the porous nature or the DEBTOR MA N A(H !IU !N T S#nUfMA Al.l'nOl'et.Jr • SO FTW ARE U NI QUELY e g,oduotoal 1ho hand-made bricks, there was additional D B81Q NED FOR COL L l!CTIO N S ATT OR Nl! YS . PRI CES unlv(lf'llty oCNoua undetected damage to the structure STA R T AT J U ST $ 900. Olmo 1111d!ho which made itself known several weeks l.lnl\'et1,1'fcl Alabama Scheelcl I.aw He later. Around 10:30 p.m. on November --louldr,g27, 1995, a large section o( bricks f'rom $; Cl'\6ii p.MIOiI O N the south tower fell to the ground • .. ,o;"1':: ... k ...... _-. -S,.,.8ar '• F.,..1yu.,Sectionan<1 Luckily no one was injured due to the ii 1Ml)flCbCI It! late hour. Still, walls had to be boarded 1. 800.827. 1457 81,mlnghllmwith 1nefirm ol Mlg!ionlcO & Aumot9 up and the structure secured. Repair I \ I I ' H " II ·I I, I , H FllJTtOfoIOl"IOS os Iha bl'lt comm111lono, 1or 10th the 1', 1!i li,llllllll•lll'~IHl1,f l,1 ·1~11,1 1111J3(if l Crc:u!Lp1806 runbof tau, work began on January 29. 1996.which THE 1\1..ABAMALAWYER MAY19961 149 Dedicationof Seyboum H. l.,ynne FederalCourthouse Decatur,Alabama , February4, 1996 nitedStates District Judge Seybo um man in college, He has .continuouslysup U.S. Repn?senlallveBud Cramer H. Lym">C,the nation'slonge,t serv portedme andguided me sincethat time." "With the courtly manners of a true ing federal judge, was honored Southerngentleman , you haveshown that U U.S. SenatorHowell T. Heflin recently when the Federal Building in a judge can be in complete control or a Decatur, Alabama was dedicated in his "[JudgeLynne) has served more U1an60 courtroomby the sheer forceof his integri activeye.1rs as .a trial judge.I am convinced name.l}.S. &'lllkruptcy Judge J ack Caddell, ty and his inteUect. U.S.Se nator HowellHeflin, U .S. Senator he is the holderof a worldrecord that will "!'he lengthof )'Our serviceas the senior RichardShelby, and WarrenB. Lightfoot, neverbe surpassed. federalju dge in the UnitedStares of America president-elect of Judge Lynne has also is uniquelyand profoundly impressive.B ut the Alabama State been a communityleader evenniore impressiveis the extraordinary Bar, presented of note, servingin church. qualityof yaur serviceas a judge.May this remarks honoring civic, school and profes buildingstand as a l astinglribute to a truly Judge Lynneat the sional organizations. He great jurist and a trulygieat human being." ceremony. Also has served both the Crip attendingwas C hief pled Children's Clinic of ASBPresiden t-elect JudgeCetald Tjofla t Birminghamand the Eye WarrenB. Lightfoot of the 11th Circuit Foundation Hospital of "... one word that desGribeso ur regard Court of Appeals. Birminghamas a trustee. for you is 'revered.'l speakfor thousandsof U.S. Representative In 1967, he serveda term fellowl awyers when I say we revereyou , Judge Seyboum lynne, John A. Bud Cramer was as presidentof tl,e Universi and we think it singularly fitting that this Caddelland Judge Jack Caddell ty of Alabama's Alumni unable to attend buildingbe namedfor yau, to remind us due to scheduling connicts. Opening Association. and the generationswho comeafter us of remar! 150 I MAY1 996 THEALABAMA LAWYER OPINIONSOF THEGENERAL COUNSEL By J. AnthonyMclain, generalcounse l UESTION: collectionof child support or alimonyarre:irage in a complet ·1 ha,.-ebeen employedto repruenl !he wifeof ed divorce. a physidan in a county approximatelyone hun dred miles from Montgomery, Alabama.The par REASONlNC: m Liesentered into an antenuplial agreement which Rule l.S(d) (1) prohibits a lawyer from entering into an is subject to legal allack as to lhe validity of the agreement in arrangement for, charging, or collectingany fee in a domestic that lhere was no financialdisclosure and the wifedid not have relationsmatter, the l)ilymentor amount of which is contingent independentcounsel. The agreement referenceslhat there did upon the securing of a divorce or upon the amount or which occur a financialdisclosure and in factnames a laW)-erwho pro is contingentupon the securingof adivorce or upon the amount vided independentcounsel lo the wifeal the time of her sign of alimonyor support. or property settlement in lieu thereof. ing. Underthe terms of the ~eement the wifewould be entitled Under the former Code of ProfessionalResponsibility, DR 2- to only$2,000 per month for 24 months. She estim.,testhe mar 107(;\)prohibited •a contingent fee for representinga defendant ital est"dleto be worth b<:tween$3 million and $4 million. If she in a criminal case." EC 2-20 provided that, "Contingent fee is bound by the agreement she will not receive any division of arran11ementsin domestic relation cases are rarely justified." the estate. She also alleges physical abuse a.nd I have advised Accordingto lhe ,lnno/01,>dModel Rules of Profl!SSionalCon her concerning her rights for a separate tort cfalm with jury duct, Second Edition, Rule l.S(d)reOects the publicpolicy con trial or for the matter to be decidedby the divorcecourt. She cern that an attorney-client fee arrangement should not has advisedme that reconciliationis a remote po55ibilityand discouragereconciliation between the parties. The Annotated only then under certain circumstancesand parameters. ModelRules also point out that the counterpart provisionin the "It appearedt o me under the facts of lhis case as pertains to predecessorM odel Codediscouraged but did not natly prohibit the contract of the antenuptial agreement and lhe damages such agreements. Several illustrative cases arc set forth in the claims that a fee utilizing a percentageco ntingencyas a guide Annotaled ModelRules : line with an offset for any reesactually paid on hourly charges A contingent fee agreement that gave a lawyer a per· \\'OUldbe appropriate.I am endosinghettwith my feeagreement centage of property nceiwd on behalfo( a client in excess for )'Ourreview and presentationto any commissioners.Please of that negotiatedin a settlement at the lime of separation advisei( this contract wouldbe approvedas an exceptionto the was improper-Coons 11. Karg, 263 Cal. App.2d 650. 69 prohibition against charging contingent fees in domesticr ela· Cal. Rptr. 712 (1968). tions matters. I have draftedthe agreementtaking into consider Lawyer forfeits rights to collect any fee. Including aiion recent opinions and discussions concerningth ese issues." quantum meruil, by representing client under contract that included contingencyfee and action for modification NSWER: of divorce judgment and property settlement-1.icciardi A lawyer may not enter into an arrangement 11. Q,llins, 180 111.Ap. 3rd 1051, 536 N.E, 2nd 840, 129 for, charge or collect a fee in a domestic relations II I. Dec. 79-0(1989). matter, the payment or amount of which is con Arrangementwhereby law) -er would receivecontingent mtingent upon the securing of a divorce or up0n fee or $60,000from settlement proceedsimproper the amount of alimony or sup1iorl, or property settlement in -Shan ks v. /(ilgo1·e,589 S. W.2d 318 ( Mo. Ct.App. 1 979). lieu lhereof. Contingent fee contracts for legal servicesare generally permitted in actions brought by one sp0use to recover ISCUSSION: property from other spouse or to settle property rights Pmunble among spouses. including equitable distribution proceed The DisciplinaryCommission of the Alabama ing separate from divorce action: Agreement may not be Stale Bar, In formalopinion R0-88-103, conclud· used in action for child support-Davis u. Taylor, 81 N.C. m ed that a lawyer could represent a spouse on a App.42, 344S.E . 2d 19 ( 1986). contingent fee basis in nn ncllon for breach of an nntenuptial While predecessorMod el Code had no disciplinary rule contract. said action seeking money damages. The Commis· prohibiting lawyer from representing client in action for sion, deciding the matter pursuant to DR 5-103(A)and EC 2· breach of prenuptial agreement on contingency basis, 20 of the fonner Codeof ProfessionalResponsibility, acknowleged Model Rules make such agreement unethical. Ala. Bar.. the pending adoption of Rule l.S(d). AlabamaRules of Profes Disciplinary Comm'n. Op. 88-103 (1989). sional Conduct, and its direct prohibition of contingent fees in Implied agreement between lawyer and client for rea domesticrelations m111Lers.The Commision noted a prior opin sonable fees in connectionwith clienfs divorcenot voided ion (R0-83-22) which had listed the only approvnl of a contin· by subsequent invalidationor contract because or conlin gent rec contract in a domestic relations matter, that being gencyfee-Morfeld v. Andrews, 579 P.2d 426 (Wyo.1978) . Tl IE ALABAMAI..AWYER MAY1996 / 151 The historical perspectiveon Rule 1.5 is enunciated in the should have no difficultyretaining counsel. The spouse with law of lawyering by Hazardand Hodes: little or no assets would be protected in most jurisdictions by "The rule against contingent fees in domestic relations the court's ordering the spouse with the greater assets to pay matters is of more recent origin, and may have a sounder the other spouse'sattorney fee. publicp0 licy rationale.Basing a lawyer'sfee on the amount Another point of concern is that a lawyer's taking a percent of alimony or support recovered seems no more objec age of any property or monies awarded to a client by the court tionable than basing it on the amount of a jury verdict. would unnecessarilyand unfairlyskew the division of property Public policy is offended,however, when the fee is made as envisioned bythe court independentof such contractualattor contingent upon the lawyer's obtaining a divorce for his ney's fee. This could possiblyplace the lawyerat oddswith his or her client. for the lawyerwould then have no incentive client, as well as with the client's children, in that the lawyer's to help bring the parties to a settlement that might pre fee would diminish the court's award of support, alimony, or serve the marriage. property. "Rule l.5(d) (! ) does not engage in such fine distinc Wherea separate tort, contractual or f-raud claim exists inde tions, but providesthat lawyersmay not use contingent fee pendent of the divorcematter representation of the client could arrangements in any domesticrelations matter. Since ques be undertakeno n a contingencyfee basis. Mowever,where these tions of alimony and support are inextricably intertwined claims are so intertwinedw ith the divorce matter that they are with the question of whether the marriage itself will con· inseparableand so related to one anoU1ernot only with regard tinue, this broadenedban seems reasonablyre lated to the to the legal rights of your client. but also as to the computation purposes of the rule." Section 1.5: 50I and assessment of your fee, then the contingent fee provisions According to Wolfram'sModern legal Ethics, Practitioner's of the contract would be prohibited. Ed. (1986),most American jurisdictions hold that it is improp Rule 1.5 is very absolute in its terms. If the fee in any way is er for a lawyer to charge a fee in a divorce case that is either contingent upon the granting of the divorce then such would contingent on a favorable judgement or settlement or propor be prohibited by Rule 1.5. It appears from your contract that if tional to the recover of a certain amount of alimonyor proper lhe antenuplial agreement is upheld, then you will be compen ty settlement. Section 9.4.4. This is consistent wiU1the first sated on an hourly basisper the terms of the contractualarrange Restatemento f Contracts that a promise by a spouse to pay a ment with the client. If, on U1eother hand, you are successful l awyer a contingent fee to obtain a divorce or annulment is in having the antenuplial contract set aside or invalidated,your illegal and thus void as a matter of contract law. Restatement, fee would then be contingent upon the assets which the client Contracts§542(2) (1932). Th e Second Restatementof Contracts could receivefrom the divorcein the event one is granted. This states that: wouldvio late the letter and purposeof Rule 1.5. Whilethe rules "A promise that undermines !the marriage) relationship allowa "feeplus" arrangement as slated in your contract where by tending unreasonably to encourage divorce or separa by you would be compensated above and beyond your hourly tion is unenforceable.'' Restatement (Second), Contracts fee basis based upon those factors enumerated in the c-0ntracl, §190, CommentC (1979). such cannot be contingent upon the.securing of a divorce or One basisupon which the prohibitionmay be justifiedis that a upon the amount of alimony or support, or properlysettle ment in lieu thereof. contingent fee contractwo uld placestrong economicpressure on The contract whichyou havesubmitted for reviewconcurren t the lawyert o assure th,,t reconciliationd id not occur. However, with your ethical inquiryappears to establish a contingencyfee this approach should not be so absolute as to prohibit contin for your representation of the client in the divorce proceeding. gent fees in all domesticrelations l itigation. as indicatedbe low. The antenuptial agreement is so interwoven with the divorce The second basis for the prohibition concerns the ability of a matter that the two cannot be distinguishedor separated suffi. client to employ counsel. Contingencyfee arrangements enable dent to allowa conclusion that the contingent fee as proposed financiallystrappe d litigants to obtain counsel. The argument can be made that such need does not exist in a divorce matter. does not violate Rule 1.5. The spou.sein possessionof the majority of the marital assets IR0-96-0IJ Do You Need a Tree Expert? RichardWilson & Associates * Tree Va luati ons * Tree Protection Registered Professional * Pesticide Dam ages * Timbe r Trespass * Tree Care • T,·ee Assessments Court Reporters * Registered Forester s * Ce rtified Arborists 804 S. Perry Street M-Ontgomery, Alabama 36104 South ern Urban Forestry Associates 205-333-2477 264-6433 P. 0. Bo, 1403, Northport, AL 35476 152 / MAY1996 THE:ALABAMA LAWYER ParhamH. Williams, Jr. Sliowi ng the Way to W liat is B est in Our Prof ess ion By Howard f>.Walthall ale in the summer of 1924, a young Mississippi couple, Parham LH. Williams and Mary H. Williams, both inten t on obtaining a legal education. loaded their ModelT Pord with their belongings and drove from Pickens, Mississippito Lebanon, Tennessee.then the home of the historic CumberlandI.aw School. With the lack both of money and motels. Parham and Mary carried with them a tent , and camped along the way. After each had earned a Cumberland law degree, their faithful car and tent were ready for the ·1 " ''1\liun1s onrl ruon y return trip lo Mississippi. 0 l!OII \V Driving from Bil'mingham to Oxford. Mississippi on n DecemberSat urday in Samfordbasketball squad. SamfordUni 1984 to attend a basketball game versity was now the home of Cumber between Samford University and the land LawSchool, which was engagedin Universityof Mississippi,Samford Presi a dean search. One name suggested to dent Thomas E. Cort.snecessarily inter the Dean Search Committeewas that of sected the route taken 60 years earlier Parham Williams.Jr .• son of the ~'Oung by that young Mississippicouple. Had couplewho long ago had left Mississippi Each diploma signifies a life that Carts thought of the fact that he was to attend Cumberland.Accompanied by Williams has touched in some way. crossing the elder Williamses'path. he a member o( the Cumberland Dean sometimesonly indirectlybut orten in a would have appreciated lhe irony. Search Committee, Corts had arranged ,-eryimmediate way. Williams ' tenure as Cort.s'svisit to Oidord,Mississippi had a his schedule to includea visit with Dean a law school dean is such that his title purpose in addition to cheering for the Williams prior lo the basketball game. has become "irtually ~ part of his name_ Samford lost lh e basketball Even his grandc hi ldren call him game, but Williams agreed to "Oei.,n.'' become a candidate for the Alabama bar members-ju dges, prac Cumberlond deanship, was ticing lawyers. and Cumberland alum selected, and on July J, 1985 ni- who have gotten to know Williams assumedthe deanship. during his tenur e at Cumberland This year Dean Williams has emphasizea varietyof points in praising announced his retirement from the man, his in\lOlvt?mentin the Alaba· lhe. Cumberland deanship on ma legal community, and his perfor· June I, 1996.Dean Williamswill mance as dean. Cumberland alumnus ha\.-eser\'ed a total of 25 years as and United States Court of Appeals a lawschool dean, 14 al Ole Miss Judge Joel F'. Dubinapoints to the ways and another 11 at Cumberland. in which Williams has been able lo Askedthe number of law school strengthen Cumberland's program. diplomas he has signed in those Dubina charncterized lhe construction (f'rona L lo ll) K(•i1h ornum. Leslie Wri•hl I) years,Williams does a rough cal of lhe new Lucille Stewart Beeson Law W"Jli 'l'I • • CUil a urus. ,011u15 Corls, L.uc.ilJe S1cw11r1Bces.s1Jn culation, and concludes that the Libraryas the ·•crownje wel"of Williams' ot lhe l.nw f,il,rnry d,•,11,•ntion tn Febru ory 1996 ,,umb er would exceed 4,000. deanship , but also took note of the THE ALABAMALAWYER MAY1996 / 153 strength of the faculty members added nice lo be right about someone." ally enrolled in Williams' Evidence during Williams· deanship who had The image of the law school that a class. Davis declares that Williams is added "a diversityof talents and ideas" dean conveys is important to others in ·•aneducator, not only in the c.lassroom, and Cumberland's reducllon In the size legal education (including prospective but by example. He shows lhe way to of its entering class al a time of an faculty members). Cumberland Profes what is best in our profession:exercise Increasein the number of applicants. sor Thomas C. Berg, Rhodes Scholar of sound judgment, lifelong pursuit of Former AlabamaCo,-emor Albert P. and a graduate of the University of Brewer, who teaches al Cumberland as Chicago Law School. recalls that he Distinguished University Professor of Law and Govemmenl. emphasizes the degree to which Williams has involved himself in the civic lifeof Alabama,includ ing service on the Citizens' Conference of Alabama State Courts, Binning. ham allorneys S. Eason Balch and Thomas N. Carruthers (lhe o..,,.Willia,m and tan latter a distant relative of Cumber land's founding faculty member, Abra ,, ham Carruthers) underscore the .., learning. civility, and concern for importance of a law dean's activities in olhers." Davis. an Auburn gradu the larger community. They point out ate, concludes that "Charles that the dean of a lawschool is the per- Barkleymay not want to be a role son primarily responsible for creating model, but Parham Williams is an image of the law school for lawyers one." James S. Garrett, judge of the who did not go to that school. Car· Tenth Judicial Circuit and president ruthers notes that Williams has o! the Cumberland National Alumni "brought Cumberland into the life of Association. puts it succinctly:''l)ean Oirmingham and Alabama more than Williams is all you could want a dean ever before."Balch notes Williams'pol· to be." ished, Southern, pleasant manner. and AskWilliams about the accomplish declares: "You just can't out-pleasant ment or his deanship, and he gi,,es him; if he sayssomething kind or pleas- responses that are careful. guarded, ant lo you, and you reciprocate, he and modest Bul there is one subject on comes right back with some statement knew very little aboul Cumberland which Williams has no reluctance in even more gene rous." llot h credit when he accepted an Invitation for a expressing an unequivocal and totally Williams with fixing in their minds an preliminary half-hour interview at a one-sided opinion: lhal is the future of image of civility and learning in con national hiring conference. In that situ legal education and o! the legal profes nection with Cumberfand. ation. Berg ~rves. "first impressions sion generally. In an increasingly hel Cumberland alumnus and 13irming are all•important, !or the school and for erogenous culture in which not only ham attorney W. Stancil Starnes also the candidate." He recalls that Dean technology but also human relation· picks up lhe lheme of Williams'impact Williams "made a terrific first impres· ships are becoming more comp lex. on lhe community, noting that il is sion as a person of dignity and weight." Wlllla111s sees the rule of law as the •·real and lasting and o! equal impor llichardE . Davis,a Binninghamlawyer. essential glue that holds together soci· tance to his unparalleled professional has had the opportunity lo observe ety. If that is right, then there is a cor· achievementsat Cumberland."Starnes, first-hand Williams'qualities as an edu responding need for competent, ethical a member of the Dean Search Commit cator . His is one of the Cumberland lawyersto apply the rule or law. "People tee that recommended Williams, says diplomas signed by Williams. He cites can bash the legal profession all they that he counts it a privilegeto have par Williamsas a role model even for Cum want to," says Williams, ·'but we will ticipated in that process, staling "it's berland students who were not person- slill need lawyers." • 154 / MAY1996 THEALABAMA LAWYER LEGISLATIVEWRAP-UP Bu ROBERTL McCURlEY,JR. 1996 CrimePackage The 1996Regular Session of the Legis of the sex offender's proposed resi counties; then the indictmentmust lature which began February6, 1996 dence 30 days before release. Regu be filedwith in 90 days.M andatesthat musl adjourn by May20, 1996.Us ually lates and prohibitsthe offender from the trial must begin within 90 days all m.ijor legislationpasses Lhe Legisla living in a residencewhere a person following the indictment or dis lure in the last two weeks.In additionto 19years of age or youngeris also liv missed.Allows the court to consid "ton reform"bills (see JanWtry1996Alaba ing and the offenderC3MOl lr.-e with er extenuating circumstances ma lawyer) c:ovemorJames and Attor in 1,000 feet of a school or child when delermining whether to dis ney CeneralSessions have proposed3 1 care facility. miss with or without prejudice. crime bills, lhal they proposewill "fixa ( I 0) Bail Reform• broken system: H.B. 144, S.B. 172 ( 1) DeterminateSenlences - Bill expands the number of per Abolishe~paro le and implements sons ineligible for bail from only determinate sentencing similar to thoseconviCkd of ii capital offense the federalsystem. to include those charged with a (2) l)rug TraffickingEnterprise Act - Class A or B felony. A hearing is H.B. 242, S.B. 291 allowed for those charged with Replacesthe punishmcnlfor a second Class A and B felonies to deter convictionfrom mandatory life impris mine if he or she may be detained onmentto a sentenceor death- 1vithout bail. Provides that a per son who is detained without bail (3) Ceneral Fraud • may be tested for a controlledsub H.B. 73. S.B. 179 stince and createsa rebuttablepre Creates a new fraud offense where sumption that no bail should be reliance on a fraudulent act is not a allowedwhen chargedwith a capi· necessaryelement, nor does anyone ta I offense or '"ho meets certain haveto incur a loss. other prescribedcri teria. (4) WindowTinting - (7) Death Penalty Appeals • (II) Venire Size I 1.8.487. S.B. 309 H.B.44. S.B. 136 S.B.248 Umils the amount of lint in vehicle Eliminates the court or criminal SupersedesRule ISA of the Afaba. windowsand violationof this Act is appealsfrom reviewor death penalty ma Rules of Criminal Procedure a misdemeanor. casesand pl'O\lidesthat a deathpenal which would effectively lower the (5) Obscenity- ly appeal willgo directly to the Alaba number of possible jurors on a 11.B.57, S.B. 165 maSupreme Court. jury pool to 20, lhereby limiting Createsa progressivel hree-lier level (8) No Bailon Appeal- the number of ~remptory strikes. of punishmentinstead of one punish H.B. 117,S.B. 118 (12) VictimsPresent at Executions· ment for distr ibutin g obscenity. R£\'Okesthe Olll>Ortunityforbail where H.B.552 Second convictionresulls in a Class the accused has been found guilty of Will allow the victim's family or C felony,with lhinl or subsequentcon a crime that carriesa term of impris victionsa Class B felony. IL exempts onmenl and appeals the sentence, those convicted from the Habitual unless the judge makes a specific OffenderAct and increases the pun Robe rt L, finding that the defendant will not Mcc urley, Jr. ishment of a wholesale distributer Reeor that the caseis likely to be _, L MoCudey, Jr from a misdemeanort o a felony. reversedon appeal. .. "'" """""' cj .... 6) Sex Crime Notification• (9) Speedy Trial - -1,m,....~., 11.8. 482, S.B. 176 11.B.279, S.B. 134 Mandates that prison wardens, law -lilhlluncMrgro The following in-state programs haue been approuedfor credit by the Alabamaf,fandatory CLE Commis- sion. Howeuer,i11fonnatio11 is auailuble free of charge 011ouer 4,500 approuedprograms 11atio11wide identified by localio11date or specialty area. Contact U1e/ttCLE Commission office at (334) 269-1515, or 1-800-354-6154, and a complete CLE ca/e11dar will be moiled to you. May 31• June 1 BRIDGETHE G/\J> BANKRUPTCYAT TlfE BEACH Tuscaloosa,Law Center OrangeBeach, Perdido Ueach Resor t AlabamaBar lnslltule for CLE 10 Friday Commercial &.Bankrupt~)' Law Credits: 12.0 Cost:$ 195 NUTS & BOLTS: SEMINARFOR Section (800) 627-6514 LEGALPROF ESSIONALS (334)343-0800 Tuscaloosa SBI ProfessionalDevelopment 28 rriday Seminars JUNE NUTS& BOLTS: A SEMINARFOR Credits: 6.0 Cost:$129 l,ECALPROF ESSIONALS (800) 826-7681 4-5 Birmingham PREVENTINGE~ IPLOYEE SBI ProfessionalDevelopment LAWSUITS Seminars 17-18 Tuscaloosa.Bryant Conference Center Credits:6.0 Cost:S129 ANNUALSEMINAR ON THE GULF Um,oersityof Alabam.1 (800) 826-7681 SandesUn,Sandestin Ueach Resort Credits:13.0 Cosl:$795 Alabama State Bar YounJ!Lawyers' (205) 348-6224 Seclion JULY Credits:6 .0 (205)879-1100 7 Friday 25-27 ANNl.lAL~IEETI NG NUTS& BOLTS: A SEMlNAR FOR OrangeBeach. Perdido Beach Resort LEGALPROFE SSIONALS Montgomery,Holiday In n Prattville AlabamaStale Bar CITY ANDCO UNTY (800)354 -6154 GOVERNMENTS SBI ProfessionalDevelopment Orange Beach.Perdido Beach Resort Seminars AlabamaBar lnslitule for CLE Credits: 6.0 Cost:S 129 Credits: 6.0 Cost:S2 I 5 (800)826-7681 21:i ~.1c1ay (800) 627-6514 NUTS & BOLTS: A SEMINARFOR LECALPROFE SSIONALS 7.9 Muntsville SBI Professional Development DIVORCEON THE BEACH 24 Friday Seminars NUTS & BOLTS:A SEMINARFOR Gulf Shores AlabamaState &r FamilyLaw Credits:6.0 Cost: $129 LEGALPROFE SSIONALS (800) 826-7681 Florence Section SBIProfossional Oe,-elopment Credits:4.8 Seminars (205)870-3363 Credits: 6.0 Cost:$129 (800) 826-7681 TIIE ALABAMA LAWYER MAY1996 / 157 \ \ ! LawPractice: ' A Place for ....., '4 Moral Values d By Karon0. Bowdre his quote from the prophet Isaiah written 8,000years ago accurately No one calls for justice; TreOectsthe problems-or at least, the perceivedproblems • -or the Amer no one pleads his case with integrity. ican justice system. We all know the symptoms of the problem: lhe prolifer They rely on emptyarguments and speak lies; ation of lawyerjokes thal are less than complimentary of the profession; the they conceivetrouble and give birth to evil. cynicismshown whenever one refers to an "honest lawyer" and the obligatory The way of peace they do not know; reference to an oxymoron3; the disillu sionment with the justice system there is no justice in their paths.... expressedin the aftermath of lhe 0. J. Simpson trial and the McDonald's hot So justice is far from us, coffeecase; and who can forget the glee of the movie-goingpub I ic when tyran and righteousness does not reach us ..... nosaurusrex devoureda lawyerin "Juras sic Park." So justice is drivenback, These symptoms underlie a basic dis respectfor lawyersthat has been increas and righteousness stands at a distance; ing during this century. Disdain for lawyersis not new.•but we cannot ignore truth has stumbled in the streets, the increasing public perception that lawyers are less than hono rable.s honesty cannot enter. \\~1etherone accepts as true the pub lic's perception of lawyers, we cannot Truthis nowhereto be found, afford to ignore thal some kernel of truth may be at the heart or that percep and whoevershuns evil becomes a prey. tion. However,whether the perception is correct is nol lhe issue;the issue is whal Isaiah 59:4, 8-9, 14-15.1 can we do to remedy that perception. V.'hatare some of the causes of this distressing attitude and what can we in 158 / MAY1996 THE ALABAMALAWYER the legal community do to change thal almost ewry culture." These moral wl most dearly held convictionsabou t fair perception?One of the rool causesof the ues do havea place in the lawoffice and ness, justice and lrulh-undermining disreputeof lawyerslies in the abandon the courtroom.11 Indeed,th eywere a major the belief that what is legal and whnl is ment of moral values that formed lhe parl of the practice of law in earlier days right should be one and the sarne.''11 fibre of lhe praclice of law in lhe early of our country. For example,David Hoff Many people have lost faith that the days of our country. Too many lawyers man, the grandfather of American legal judicialsystem rendersjustice. "The gen lea\'eat the lawoffice door the moral val· ethics, reliedon the "soundestof morals" eral futility of litigation has gi\'en rise to ues with which they grew up, practicing of the beginning studenl of the law; to the viewthat the principalbenefit derived law M if those morJI principleshave no those sound morals, Hoffmanonly added from a lawsuit is that the controversyi s place in the law. One solution to lhis a few rules that mixed mornl principles ended rather than that justice Is done."" problem,then. must be a return to those and regulation.Indeed, in Hoffman'sview, The much-discussedOJ. Simpsontrial core values of justice, mercy and truth· the lawyer'srole includedmoral leader lefi its mark on the public's perception fulness.Along the way, perhaps we can ship and guidanceof the clienLu of la\,)'l!rsand tilt justicesystem. Whether also acquire the virtue of peacemaking We cannot return to the role of moral we agree with the verdict, "the Simpson nnd cast off the vice of stirring up dis leader unless we embrace basic moral case is now part of our culture, along sension. principles and apply them to the prac with a magniOed sense that something tice of law. Although many moral prin is seriouslywrong with our justice sys A p la c e fo , moral valu es cipleswould be at home in the lawoffice. tem ... This will affect lawyers for the Whene\'ermorality is discussed,some· this article will focus on only four basic foreseeablefuture. " 11 The cynical effect one inevitablycomments that we "can't virtues:justice, mercy, truthfulness and that lhe Simpson verdict had on lhe teach morals LO law students." or that peacemaking. public is reflected in this quote: "If you we"can't legislate morality.'' Maybethese talk long and hard enough about some. idioms are true, but we caa remind law Ju st ice thing, and haveenough money.you can students and lawyersthat the moral val Wherei$ justice today?To answer this raise reasonabledoubt about anythintr ues taught to them by their families.reli question,we mu.stask an a-en more basic including the sun rising tomorrow."" gious organi7.alions,and communities question: what is justice? To many,jus· Regardlessof our ~rsonal views of the neednot be checkedat lhe lawoffice door. tice representswhat is right and fair and verdict, we cannot Ignore the cries of Whenpeople do 11ol 1iul their moral prin just. Justice should be impartial and In many who believethat Justice failed. ciples into practice in the lawo ffice. the conformitywith truth and reason. Jus Howcan we re:storefa ith in the judicial actions taken in the law office become tice encompassesmore than individual syste.m?By seekingjustice. To seek jus routinelyself-serving.• rights: it considersthe good of others." tke, ",e need to first reviewsome of its Contrary to the thought in academic Unfortunately,many Americansbelieve moral roots. and legal circles. ours is not a truly sec that lhe legal system has beLrayed"our The Hebrew Torahco ntains manystale· ular society;stud ies revealthat the "vast majority of Americanslook to religious sources for moral wisdom."7 This reli gious nature of people finds particular strength in the South, still referred to as "the Bible bell." The fact, however, LANDTECH86 Lhal people have religious convictions Real Estate Settlement System does not mean that those convictions affectthe way they handle their business For1.aser or MntrixPrinters affairs or the way they act in legal deal· ingst-pecially if their attorney does • HUD 1 Automatic Calculations not raise the moral issues and distuss • Checks & F.scrowAccounting their relevanceto businessor legalaction. • Word Processor· Spell Check Although a significant percentage of Policies& CommibnenlS Americans believe the Bible to be the Deeds & Mortgages hupired word of Cod.' we do not have lo • Data BaseR eporting limit our sourct of moral values to Judeo • On Christianprinciples. At the heart of moral site Training Available teaching of most Americans lies the • 10995Reporting principle that other people have value. $1,495.00 ------~-- - "Moral choices in legal representation ------are important becllusethey affectother peopleand peopleare important." 10 LAND TECH The moral virtues of Justke, mercy, DATA CORPORATION (800) 937-2938 truthfulness and 11eacemakingare part 303 Guaranty Building • 120 South Olive Avenue • Wcot Pnlml leach, FL33401 of the religious and moral frameworkof Tl I~:ALABAMA LAWYER MAY1996 / 159 ments about justice and the Hebrew shows Lady Justice, blindfolded, seated the tone or a trial or deposition or nego prophets measured society's justice by with the scales or justice. Behind her tiation. When another attorney begins the way society cared for the poor and stands the Angelof Mercy.Mercy is whis throwing insults, do not respond in kind; powerless." For example, "Do not deny pering to Justice,. portraying Mrs. Bee keep control of your temper. Remember justice to your poor people in their law son's viewthat justice should be tempered that it takes twoto argue. A gentle answer suits." (Exodus 23:6) " Do not pervert with mercy.23 can tum awaywrath (Proverbs15 :1) Your justice; do not show partialityto the poor If justice concerns what is right and client will benefit as the judge and jury or favoritism lo the great, but judge your just. what we deserve, mercy reflectscon and other observers respect you for tak neighbor fairly." (Leviticus 19:15) The cern for the needs of others, irrespective ing the "high rood" and not letting some writer of Proverbsalso says much about of what is fair or deserved.Mercy seeks one else control your temper. justice: "ll is not good to be partial to the to avoid needless harrn to others. Mercy Aswe ponder mercy,we would do well wickedo r lo deprive the innocent of jus focuses on the importance of relation to remember that the Bible teaches that tice." [Proverbs 18:5) ''Evil men do nol ships and of people." we should love our enemies and do good understand justice, but those who seek Beforewe can expectour clients towel to those who curse us." The beautiful the Lord understand il fully." (Proverbs come our entreatiesto be mercifulto their story of the GoodSamaritan " illustr.iles 28:5) "Whenjustice is done, it brings joy legal opponent, lawyersmust first learn who is our neighbor and how we should to the righteous but terror to evildoers." to demonstrate mercy to other lawyers. care for our neighbor.Jesus told this story (Proverbs21:15 )20 Manypersons within and without the legal in response to a question by a lawyer Justice is important to Cod: "For the system have pointed to the decline of who sought to limit his duty of care. Lord is righteous, he loves Justice. " civilityamong attomeys.Civility or mercy The lawyer asked Jesus , "Who is my (Psalms 11:7). The prophet Micah gave finds its base in the premise that all peo neighbor?" We may ask today whether an instruction that has particular appli ple haveworth and should be treatedwith the opposing counsel and party are our cation to lawyers: respect.25The treatment many lawyers neighbors. The teachings of Jesus place He has told you, 0 man, what is giveeach other beliesany mutual respecL no limit on the scope of our neighbor good; Not only did the outcome of the Simp whomwe are to low and treat with respect And what does the l,ord require of son trial challengemany people'ssense of Mercyalso dictates how we treat other you justice. the public had the right to be partiesand witnesses.The Ten Command, But to do justice, lo love kindness, appalledat the antics of the trial lawyers.26 ments" illustrate that God is not only Andto walkhumbly with your Cod? The continuoussnipping between lawyers concerned with how we treat him; he is Micah6:8 " may have contributedto the defense.The concernedwhether we lie, cheat, or steal These Biblicalreferences to justice do "theatrics" diverted the jury's attention from others. How we treat each other not imply that justice comes from U1e fl-omthe evidenceto the personalitiesand interests Cod. The role of advocaterare ly conjures up government or from a couit. '"l'oassume disrupted the prosecution's momentum." that court is the place where people find The inability-or lack of desire-of the picture of mercy. If the basic premise justice is to assume that justice is some lawyersto get along with each other also of mercy is respect for other people,why thing the stale gives to people. More plays out in civil cases and appears to be cannot the advocate demonstrate basic often, we suspect, justice is something as much a tactic as general personality respect for witnessesand parties? Should people give to each other .... lJlustice is flaws.A recent example was spotlighted the advocate cross examine a truthful most likely lo emerge if lawyers and in the ABA Journal: the Phillip Morris/ witness so as to harass, intimidate, and clients on both sides seek it than if they ABCdebacle. The coverstory narrated in abuse the witness for the purpose of rais great detail the lack of civility among ing a doubt as to the witness' veracity?35 rely upon the state to provide it."2l Howdo we seekjustice with our clients? lawyers.' ' The article imp lies that Perhapsthe most common moral issue We need to take them beyond their per Phillip Morris hired attorneys not based arising in law practice is whether to Lake sonal interest and help them see what is on any specialized knowledge of Iibel actions lhal will disadvantageo ther peo fair, right and just-the foundation of law (they had none), but on their will ple.36Lawyers musl struggle with these justice. We should help them see not ingness to trade insu lts and lo push and other questions aboul tl1e applica only their own rights but the rights of their opponents." The ugliness at depo bility of mercy to the practice of law. others. 1\ view of justice that includes sitions grew so bad that the parties had the rights of others will lead us to the to hire a special master to referee a Truthfulness application of another moral virtue deposition in an effort lo control war Walking hand-in-hand with justice and mercy. ring lawyers. The cou,"l had to inter mercy comes the virtue of truthfulness. vene almost weekly in discovery Honestyshou ld be such a common virtue Mercy disputes as lawyers accused each other among attorneys that no one wouldjoke A beautiful picture of the role of mercy of "heinous conduct.'"'° that an honest lawyer is an oxymoron. in the judicial system is depicted by the Such conduct should not be condoned Daniel Webster found no place for dis statue in the courtyard between Robin by a profession. Indeed, "when lawyers honesty in a lawyer: "Tell me a man is son Hall and the Lucille Beeson Law cannot get along, the quest for truth suf dishonest, and l will answer that he is Library al Cumberland. The sculpture, fers."31We must learn to get along again. no lawyer. He cannot be, because he is speciallycommissioned by Mrs. Beeson, One lawyer can make a difference in careless and reckless of justice; the law 160 I MAY1996 THE ALABAMALAWYER is not in his heart, and is not the stan client has a weakcase or wants to assert a bile accident case, but of the unusual dard and rule ol his conducL"l1 less-than-honest p0sition. as his legal and questionablec.ues. The publicrightly AbrahamLincoln ea rnedhis nickname advisor. the attorney should discuss lhe reelsoutrage about the womanwho sued "I lonest Abe" while a practicingattorney. matter lruthfolly with the client. We .McDonald'swhen she spilled hot coffee Me.tdmonished le llow lawyers:" Resolve cannot expectour clients to embracethe on her lap. The publicshould be equally lo be honest al all events;and ii, in your idea of perfecthonesty if we are not hon outraged by othu casesthat should not ownjudgment. youcannot be an honest est with them on such matte.rs as fees. be filled. A caserecently reported by the lawyer, resolve to be honest without Weshould not shirk our responsibilityto AssociatedPress fallsinto this category. being a lawyer.Choose some other occu act as moral advisor to our tlients," and 'l\vo three-year-old children could not pation.rather I hnn one in the choosingof truthfulness with them forms a good gel along in a Bostonneighborhood play which you do, in advance,consent to be starting place.We may need to truthfully ground.The mother of the little girl sued a knave."ll discusswith the client altemati\>eSto liti the three-year-oldboy and his mother, La\\oyersha\'e traditionallybeen viewed gation, includingforegoing a legal right, seeking an injunction to prevent the boy as officersof the court whosejob was to O\>erlookinga wrong. or reconciliation. from playingin the playgroundwhile her seektruth. But the role or the laW)'ernow daughter was presenLThe judge ordered seems to be one of distorting the lrulh Peacemaking the mothers to keep their childrensuper by using any method the law allows The examples of lack of civility among vised and separated while al the play while relying on the opposing interest the bar att only one reason for the pul> ground. As the attorney ror the lo do the same, with the hope that the lic's disdainof lawyers.The perceivedlit defendantscommented, the case"should end result may approximatejustice.• igation explosion<:also reflects badlyon neverhave lefl.the playground."<> The importance of integrity to the lawyers. The public reads newspaper Althoughl itigationdoes--iNentually lawyerca nnot be overemphasized. When accounts, not of the "everyday" automo- resolve lhe dispute, the mere solution of Judges and other attorneys can trust a lawyer'sword, the wheelsor justice tum more smoothly. Whena la>V}oerlacks cred ibilitywith a judge or other counsel,every statement is doubted and every promise must be confirmed in writing. When a lawyerlacks credibility.the client suffers. A lawyershould at least appear honesl and reasonablein trial.As James W . Md~i haneyrecently admoni'ihed through his sagela\ l'}>erAngus: ~ 1want lo be the most re.'l500iU>lelawyer in U,eco urtroom.... I want to beconsiderate. I want to befair. I never want to looktechnical or tricky. Butmore than anything, I want everyargument I make to appeal to the inherent senseor fairnessor the judge or jury. If theyc.,n't trust me. they can't trust my case."''~ Being tru thful with one's client or with the court may not always be easy. Disclosingadverse controlling authority is no fun. but must be done to maintain MIS!lSSlJllll\'allc) lialc has lhc sumgth .ind SIJlbduy ofOl"CJ 50 )'Cll!S 01 lhcu!le our duty or candor with the court. If the busmrss.ronsmJU\'C A+ratmg; Imm Slandanf (:; Poor, .ind lhc csiremtd post nanof being the number one title Insurer in bothMississippi and Alnbama. Withour smn)!J)i Md cxperience..weoombiae the llexiblllty to solve Karon O. Bowdre your KlrenO-•on ~ lillt problans.,iJh a wi11ingreto \l,ffl with)'OU io-.-.uds mil sohnions. _,,.,._., llttlru!eal Mississippi\'.illq• T Ille. Fit.6~bthty isn \ JIISl~ ooncqx.its lhcway b .XS N ddCIOr al ..., dobusmcss. tlloalmsean::h ano ~· I'll"-~ "' Law,Semord !.), ...... 1111v. Sheila 1971gmd~ uotoo/Samll>d ., * * ___un.vas.,yand • 1llll I * MISSISSIPPI VALLEY TITLE o.tnborlln:I.._She __ Sdw ..,cl •,. .. • ,... INSURANCE COMPANY ...... °""""Judge J Fo; GUOIIJI fn,,n 1981-82~ Sho • 1 TI1e Flexibility You Need. 11,e Stabili ty You Trnsl . """'1borcl ""'Amt,!"*'. - and B.tmo,O, blr asso::ierJont,and• on lhe boiwdol dlrodo,aof )15Tumbgbcdum • Jo:k."'°'M"""'ppl lQlOS• 601-90'!-0lll • tw-M7-2124 "1o ChristianLogo/ SOoklly TMEAu\BAMA LAWYER .MAYl996 / 161 the controversydoes not satisfythe par become overburdened is that priest, should be sought before ties. llllrclydoes the verdict comportwith Americansare Increasingly turn the litigants· senseof justice. Although partiesrun offto the lawcourts ... I ing to lhe courts for relief from a think we art too ready to seek vin litigationproduces a winner and a loser range of personal distresses and it exacts such great financial and emo'. dicationor vengean,:eU1rough the anxieties. Remedies for personal adversary proceedings rather Lhan lional tolls!hat noone reallywins. wrongsthat once were considered peacelh~gJ1 mediation..... Cood ~ financialcosts of litigationart well the responsibilityof inslitutions known and frequentlyd iscussed among Christians,just as they are slowto other than the courts are now anger. shouldbe slowto sue.SJ lawyers;" the emotiona l costs, often boldly asserted as legal 'entitle observed, receive rare attention." After ments.' The courts have been Attorneysshould once ag;iin embrace listening to their attorneys rant and expected lo fill the void created the traditional role o( "healers of rave about how "all right" their actions by the decline of church, family human conflict," of peacemaking ." were and how ··anwrong" the opp0nenl and neighborhoodunity ... Sometimes the best approach for the was, the clients believe their attorneys· client would be lo acknowledgeher part version of the "truth" regardless of Lhe Did Chief Justice Burger mean that in the conllict (every dispute has two verdicLThey either feel somewhat vin at one time "church, family and neigh sides), accept responsibilily and apolo dicated or believe that justice was not borhood" played a role in dispute reso- gize." Por another client. the best served by the decision. The litigation 1utlon? Yesl The Torah discouraged counsel may be to overlook a wrong drove a wedge deep into any friendship taking a fellow Mebrew Lo court. instead of de.stroying a relationship, or or kind feelingsone party may have had Instead, Rabbinical courts, Bet Din, to practice true forgiveness." To lead for the other. "Lawyersstand between Include dispute resolutionas an alterna our clients to points of confession and the client and the opponent; Lhey free tive to civil courts . The sources or forgiveness, we must help them see clients from the responsibilitiesof rela authority and guiding principles come people and re lationships as more tionships and In the process destroy from the Torah and Rabbinical teach important Lh~n always exercising all relationships."' ' No passing thought ings. Numerous Jewish arbitration cen our legal rights. Remember, that was given to lhe needs or feelingsof the ters and conciliat ion efforts exists. "[b]lessed are lhe peacemakers for Lhey other party. or to what was "righL" The including the well-known Jewish Con shall be called the children of Cod."S'I dispute draggedemot ions to the surface ciliation Boardof NewYork. II This short article could only begin to and left them there. raw and bleeding. Christians also have various organiza raise issues about the role of moral val And lhe advocacySY5 tem does nothing tions designed to reso lve disputes ues In Lhe law office. May we continue to heal those wounds. or reconcile the according lo Biblical principles. The lo examine lhe questions raised here as parties lo each other. most active in Alabamais the Institute we struggle lo be honest lawyers and Altorneyshave rejected their historic for Christian Conciliation.•• The lnstl healers of connicl. h1te traces its roots lo seeds planted by role as "healers of hurna.n conflicts;"" Endnotes instead, as trained advocates,they serve members of the Christian LegalSoc iety as hired guns, doing the clknrs dirty in J980. Its twin missions are to edu 1, (Now lnte THEALABAMA LA WYER MAY 19961 163 Ha~e You Met the New Kid on the Block? The ADDENDUM,the new bi-monthly newsletter published by the AlabamaState Bar, is now three issues old- and "growinggreat! '' As proud parents, the sub-committee of the editorial board thought you might find the followingfacts interesting: • The AdministrativeOffice of Courts was inundated with calls followingthe first ADDENDUMcover story, "AlabamaCourts in Cyberspace", about their new remote access system. • The second ADDENDUMcover story on the mentoring program of the Birming ham Bar Associationprompted the president of the Mobile Bar Association to put the wheels in motion for a similar program there. • John Cunn's article on client relations mentioned a free video availablefrom the ASBand dozens of lawyershave called to request it. • An ASB member working in Panama responded by e-mail to get information on having a peer mediation program in a local school there after reading about the successful program in Judy Keegan's "ADRAround the State" column. • A state trade association director called to ask per mission to re-pri nt a Point/Counterpoint article in their association publication, saying it was the best article he had read coveringboth sid.es of the tort reform issue. • A law office admin.istratortook the time to write a letter saying how much good information he was able to get and use from the newsletter. So the good news is that the "new kid on the block" is doing just what was hoped for-br inging members timely, concise and practical information that can help attorneys in the practice of law today.And the way to insure that the ADDENDUMco ntinues to do the job it was created to do is for you to get involved!Editor Susan Shirock DePaola invites you to send in your opinions, share information about articles you have read that you think would be of interest to others, and even volunteer to serve as a reporter from your area of the state! Youcan reach her at (334)262-1600. One more way to help? The next issue of the ADDENDUMwill include a fax poll. Please take a moment to fill it out and let us know what you like or don't like and what you want to see included in future issues. 164 / MAY1996 THE ALABAMALAWYER FRAUD: Recent Developments In Alabama he landscapeof fraud in Alabama T is ever mercurial. Particularlyin an against United lnsurance Company of Supreme Court of Alabama,in an opin era when reform is on the minds of America ("United"). Unitrin, Inc., and ion that was later withdrawn, granted lawyers and legislators alike. the United National Fire Insurance Compa the writ. ordering the court to transfer jurisprudential landscapeis alwa)'5shift ny. Plaintiffs11\.oed in either Elmore,Mont the cases back to Macon County and ing. Recent decisions of the Supreme gomery,Chilton, or Tallapoos.icounties. holding U1at the lri11J court abused its Court of Afobamahave wrought numer IL was undisputed Lhat United "does'" discretion by transferring the ca.seslo ous developments in the law relating to business in MaconCounty. but otherwise. Shelby County because the convenience fraud.The foll THEALABAMA LAWYER MAY1996 / 165 lions... eiU1erto the county of the plain forum. In recent cases, however, the forth evidence that Lheir legal counsel tiffs residence or to the countywhere the supreme court has rendered differing resided in Jefferson County, its regional wrongful act occurred." Gaun/1, No. decisions about when transfer for the manager lh"!d in Shelby County. (which. 1940591. 1996 WL 55604, at • 10. The convenience o( the parties is warranted. according to United, are both closer to supreme court granted the writ, ordering Though unclear al Lhist ime, these deci ElmoreCo unty), and documents and wit the trial court to determine which cases sions may signal a growing openness to nesses were located in Elmore County. involved personal Injury actions and to transfer of cases from proper forums for The only connection between Bloodsaw, transfer them to the county where the the convenienceof the parties. a resident of Elmore Cow1ty,and Macon injury occurred or the countywhere the In £x parle Bloodsaw, 648So. 2d 553 County was that United conducted busi plaintiff resides. The court directed the (Ala. 1994), plaintiff Hazel Bloodsawfiled ness in Macon County. The lrial court trial judge to retain those slating both an action for bad faith refusal to pay transferredthe caseto ElmoreCounty. contract and personalinjwy claims. insurance claims in the Circuit Court of Plaintiffsfiled a petitionfor writ of man· Macon Cow,ty, Alabama, against United damus. In granting the writ, the Supreme Forum Non Conveniens lnsurance Company of America ("Unit· Court of Alabamanoted that deference Section 6·3-21.l of the C()(fe of Alaba cd") and its subsidiary, Union National must be given to a plaintiffs proper cl,oice ma codifies the doctrine of forum non Life Insurance Co. Bloodsawwas a resi of forum and that transfer of a case for conueniens and provides Lhat "[wlith dent of Elmore County. United does the convenience of the parties shou Id respect to civil aclions filed in an appro business in Elmore and Maconcounties, only be ordered ii the forum to which the priate venue, any court of general juris· having sold policies in both counties. case is lo be transferred is significantly diction shall, for the convenienceof the Venuewas proper in Maconand Elmore more convenient than the forum in which parties and witnesses, or in the interest counties. the action was filed. Bloodsaw. 6<18So. of justice, transfer any civil actlon ... to Unitedmoved the trial court to transfer 2d al 555. In Bloodsaw.the court noted any court of generalJurisdiction in which the case to the Circuit Court of Elmore that Elmore and Macon counties were the action might have been proper ly County, stating that prosecution of the contiguous and that witnesses for plain filed.... "Ala. C()(fe 6-3-21.l (1993).Th e case in Elmore County would be much tiffsw ere willingto travelto Macon Coun doctrine of forum non co11ue11ie11sis more convenient than Macon County. ty. See £.r parte The Prude,1/ialIns. Co. applicableon ly when an action is com Section 6-3-5 or the Code of Alabama of Am., Nos. 1941037 and 1941038 (Ala. menced in a county in which venue is provides that an insurance corporation Feb. 9, 1996) (holding lhal where plain· appropriate. Montgomery Sleva/or Co. may be sued in any county in which it tiff ,·esided in Tuscaloosa County, bul v. Pinkney, 628 So. 2d 767 (Ala. Civ.App. conducts business. Because Unitedco n· filedhe r lawsuitin GreeneCou nty, venue 1993). The law in Alabama has consis ducted business in MaconCou nty. venue was not significantlymore convenient in tently mandated that trial courts show was proper, but United sought transfer Tuscaloosa County). As a result, the great deference to a plaintiffs choice of under §6-3-21.1. In support, United put supreme court held that United failed to prove that Bloodsaw's right lo choose the proper forum in which to bring her lawsuit was not outweighed by the con CI.E DOESRT HAJIE TO BE venience of the parties. Furthermore, the PAR AWAV OR BORING! supreme court cautioned that a case $119-00 POR 6 &LE HOURS should not be transferred unless a court is "convincedt hat the righl of the plain Register Now For the SBI tiff to choose the forum is outweighed ONE DAV "NU~S & Botts" CI.S SEMINAR by the inconvenience of the parties." fd. •P ractical Aspects of Dcl'endingIlle O.U.I. Case• (quoting Ex parte Johnson, 638 So. 2d "J/ow 1/1e srstm r re.allyuYJrks urrd...... CrO,s•'-A'.Onu'naJjo11t/10 1 Cups 1/ateJ" 772, 774 (Ala. 1994)).' mm • Effective Interviewin g Techniq ues• ~ "Jflacd, the bwly lnnguag~ ruul learn to U te.Clde.upt J'o11,, In Sx pal'le New Engl011dMutua l life g, -· •Using "Pre-Polygraph " Polygra 11hTests , lnsur011ruOJ., 663 So. 2d 952 (Ala.1995) , I ~', ( "lfl'/1«11t1 U ~Ucfaiu ...uy tlte truth" - U,e supreme court held that the circum Accident " Rc-ln vestigation/Reconstructioo" For Allomcys stances of the case warranted transfer. "Putting l·lumpty-D4lmplyto gd /1u oga.l.nland duco,•l'.ringfrauth and JcnmJ" In 1984,while a resident of Montgomery MAV .JUNE .IUI.V County. George Smoot purchased an insurance policy from New England 10: TUscotooso 7: 1111011er,om•rv 6: Hu11avlll• Mutual Life Insurance Co, Al the time of 24: Plo-11c• 28: B1r1t1l11gho1t1 purchase, New England'sage nt allegedly What Others represented to Smoot that he would not Have Said...... "BestSeminar I Ever Attondod". .. AL LBWyer • •outstanding"...FL Lawyer have lo pay premiums on the policyafte r nine years. ln 1989, Smoot moved to For D•mlls or R1111lsaodo11: B00-S26•76Bf Barbour County, Alabama, and in 1994, SBI Profesalona l Deve lopment Seminars· 313 N. Foster• Dothan , AL 36303 ten years after purchasing the policy, Smoot learned for the first time that he 166 / MAY1996 THE ALABAMALAWYE R wwld haw to make additionalpayments plaintiff.Harmen u. Motors /TIS- Ccrp.• 493 the close the transaction, lhe McCullars under the policy even though the nine So. 2d 1370, 1373 (Ala. 1986). The signed a contract to finance $15,108.54, year time period had expired. Smoot SupremeCo urt of Alabllma.particular ly in plus pre-computedinterest. The total to brought an action for fraud in Barbour the area of fraudinvolving credi l lifei nsur be repaidove r 60 months. with payments County. ance, issued severaldecisions concerning of $345.70per month, was$20,742. NewEngland Mutual moved the trial what constitutesa misrepresent.1tionupon On May 7, 1993. McCullarsued Uni court to transtertht lldion to Montgomery whicha claimfor fraud may be~ versal. Regency,and Regency'sindivid County, arguing that venue in Barbour ual employeesin MaconCounty, alleging County was improper, and in the alter McCullar u. U11iversal U11derwrlter's fraud. McCullar charged that Regency native, that prosecution of the case in Life /11surt111ceCo., No. 1930246. 1995 representedlo her that they were selling Montgomery County would be more \VI. 577025 (Ala. Sept. 29, 1995). lo her the amount o( insurance"nettled." convenient to the parties. While staling In McCullaru. llniversolUnderwriler's but sold to her credit lireinsurance with that the purpose o( the doctrine o( forum life Insurance Co.. No. 1930246, 1995 the amount or insurance based on the 11011co11oenil!llS is to minimize expense WI.577025 (Ala. Sept. 29. 1995), Cindy total amount of the contract instead of and the inconvenienceor the parties, U1e and Allen Mccullar purchased a new the amount financedunde r the contract. supreme court held that defendantscar Oldsmobil~Cullas Cierra from Regency In other words, McCullar charged that ried their burden of proving lhat Lhe Chevrolet-Olds.Inc. The purchase price Regency defrauded her by basing the inconvenienceof the parties outweighed of the automobile was Sl4,248-19.The 3mount or insurance on $20,742 instead Smoot's right lo choose the forum.Nw McCullarsmade a paid Sl.SOO,leaving an o( $15.108.54.As a result or lhe manner England Mutual, 663 So. 2d at 956. unpaid balanceorSJ2.748.19, which lhey in which Regency structured the trans l'nvorablel'actors cons ideredby the court financed. As a part or the transaction. action, Regencyand Universal charged in granting the writ were: J) all events Regency employees, acting as agents of Sl,037.10 in premiums for the credit life occurred in Montgome ry County; 2) Universal. sold the McCullarscredit life insurance instead of S755.45.and simi fourteen or 15 witnesseswere located in and credit disability insurance on Allen larly, charged a higher than necessary Montgomery;and 3) ten additional, sim McCullar.The cost of credit life insur premium for credit disability coverage. ilar actions were pending in the Circuit ance was $1,0.17.10 and $1,'!06.75ror the McCullar alleged that Regencyfailed to Court of MontgomeryCounty. Id.; see £x credit dlsablllly insurance-increasing disclose to her that lhe amount of the parte Cordell. 555 So. 2d 148 (Ala. I989). the balance o( the loan lo $15,108.54.To Insurance was more than she and her The court held defendantshad met their burden of proving that Montgomery County was significantlymore com'l'llimt than Barbour County in this partkular case. Id. (citing Ex parte Ford Motor ALABAMA Credit, 561 So. 2d 244 (Ala. Civ. App. 1990)).3 BUSINESS NETWORK Venue is an important consideration WHE\ YOU NEED TI IE INFORMATION NOW for plaintiffs and defendants alike. I( a plaintifffiles an action in an appropriate lma,,nc all the poli1ic11l1nd lcglilllti\-e1nf011111t1on )'OU need. in 1hcmosl cum:nt, efforts cutting edge or 1echnologyavnllnblc. The A labnrna BusinessNc1wotk ( ABN). u forum, should be made early In con1putcri1.cdgovc. rnmcnu1l lnforma1ion,ystcm, 1hc inronnation discoveryon both sides to develop a record you 11ccd, when you need It. o( the connections thal a claim may or ABN fenlurcs: m.1ynot have with the forum county. In l;My lO USCbill tmckinll rcatures. includln&full blll teXI 1 ' The.Alabama so doing, each party wall be prepared to Compn,hcnsi,·cd.a,on co, ct0g,:. includ1n1campaign Buslness Ne.twor properly support or oppose motions to funds and n:sut15 has saved my staff lransrer for the convenience o( the par A compl•te comm,n•e $<:hedule.including bill numerous hours or I ies. Recentdecis ions indicatethe supreme nurnbcrsnnd shon 1hlc.s rc,oan:h on potltkal courl is much more open lo granting Accessto everyroll cull vote. includingcommluee lssues ... lt provide s motions to transfer based on conve VOICS lnformadon that Is 0:illy newspaperankles from c•ery P"l'Cf in thee nience. Prtparation will prevent lhe dis· not avaUable. on ~ny ,uuc. covering all sttucwidcissues and pol111c:at other system.'' comfort of being caught unaware of and figures unpreparedfor lhe impendingbattle. Variou5coun decisions. pressre.lenses, ncw1lc11ers. govcmmcnml rcpo~s ond mony other documents Substantive Development• The ublllty 10 download dircc1lyinto your word prO THE ALABAMAU\WYER MAY1996 / 167 former husband neededlo repayU, e debt ment RegulationNo. 28. Regulation No. 1996. The future impact of the court's owedon the 1"thlcJein the eventthat Allen 28 provide.s:"The amount of indi\•idual decisionis, therefore, presently unsettled. McCullarbecame disabled or died. credit life insurance written under one In support of their motion for summa or more policiesiSS\ied by the same lender BroWTI/rf achine Works & SuppfgCo. o. ry judgment. defendantssubmittfd affi shall not exceedthe original faceamount Insurance Co. of N. America , 659 So. davits from Robert Floyd, supervisor of of the specificcontract of i~ •.. ; 2d 5 1 (Ala. 1995). the Alab.\maBanking Oe\»rtmenl's Bureau the amount of insurance shall never The Supreme Court of Alabama an of Loans,and I larland O,er, an employee exceed the approximate unpaid balance sweredthe followingquestions certified of lhe Alabama Department of Insur of the loan." McCul/ar. No. 1930246. by the United States District Court for ance. Floyd,an administrator responsibie 1995WL sno2s. at •4, the MiddleDistrict of Alab.,ma,the Hon for the enforcement of U,c "Mini-Code; The trial court entered summaryjudg orable Ira DeMent presiding: testified that the premium for decreas ment In favor of the defendants. The ())In a breach of contract action. ing credit lifo insur11ncecan be written Supreme Court o( Alabama reversed. when an insurer fails lo delivera for the tollll amounl of pay111ents due on Section 5-19-20 stntes insurance on a copy of the policy to an insured add-on/precomputedinterest credit sales "credit transaction shall not exceed the in accordance wllh Alabama transactions. instead of the amount of approximate amount ... of the credit." Code 1975,§ 27-14-19, but does principle. l'urU,ermore,D,er , an actuary The supreme court further noted that providea certificateof insurance who interprets Alabama'sinsurance reg Regulation No. 28 required that the which sets oul lhe general cov ulations. teslified that the Insurance amount of insurance shall not exceed erage wiU,out enumerating the Department interprets •amount of cred the approximate unpaid balance of the limibtions and exclusions.is lhe it" to mean the tobl amount of payments loan. According to lhe court. Regency insurer eStOl)pedfrom asserting plus precomputfd interest on the credit clearly char11edMcCullar premiums on an othuwise \'alid exclusion? transaction, an interprebtion he felt was credit life and credit disabilityinsurance consistent with that of Banking Depart· on the amount of the unpaidbalance plus (2)Wouldil alter the opinion of the accumulatedinterest. not the unpaidbal Court !(, in addition to the above ance or the loan. The court held that the facts, the insurer's agent made Stale Departmentof Insurance interpre· misrcpresenl.1Lionsto the insured IN-STATE MEDIATION talion or Regul:ition No. 28, as enforced lhal the insured had full cover, T•R•A•l•N•l•N•G by Alabama's Banking Oeparlmenl, is age under the policy, upon which inconsistent with the plain meaning of [representations [ the insured §5-19-20(a). The court, therefore, held relied lo its detriment? (approved for CLE credit and that U,e amount of credit life and credit In answer to lhe first question.a ques Alabama Center for Dispute disability insurance should be based on tion of first impression in Alabama.U,e Reso/utlonroster registration) U,e original fac-eamount of the specific Supreme court of Alabama created an May 17-18, Mobile contract's indebt'11ness.wiU,out includ exceptionto the general rule in Alabama May 24·25, Phenix City ing precomputedinteresL Consequently, that insurance coveragecannot becreat Clvll Med ia tion : Part I • the court ruled that McCullarhad pre ed or enlarged by estoppel. In so hold The Settlement Institute sented a genuine Issue of material fact ing, the court concluded that §27-14-L9 (404) 758-9004 from which a jury could find that the of the Qxfe of JI/a/Jamarequires that an defendantscommitted frdud. insurancepolicy be "mailed or delivered· June 11-15. Montgomery Justice Butls concurred specially to to the purcha.,er of a policy and to the Divorce Mediation note that "even if the credit life transac n.,med insured and that an insurer may Training for Profe ssionals: tion at issue in the appeal did not violate be estoppedfrom assertingco nditions of, Atlanta Divorce Regulation 28. mere compliance with or cxcludinl! from. coveragewhere such Mediators , Inc. that regulation is not a shield broad a purchaser or insuredp is rejudiced by (404) 378-3238 enough to protect a defendant who ha.< the insurer's failure to comply with the August 14-18 and otherwisecommit led a fraudulent act as statute. Additionally, the supreme court November 13-17, Montgomery a party or a credil life insurance sales held that because a purchaser and U,e Divorce and Chlld contr.icL• McCu/lar, No. 1930246.1995 named insurer are so obviouslyincluded Custody Medi ation \Ill. Sn025. at •8. Justice Houston con within the terms of §27-14-19.the mere Training : School for curred in the result. bul not the reason deli\'eryof a certificateof insurance.e\'ell Dispute Resolution ing, stating that summaJ')'judgment was one disclaiming any effect on the pur (404) 299-1128 improper because discoveJ')'was incom chaser's or the named insured's legal plete and becausethe meaning of Regu right under lhe policy,will not be suffi For out-ol-stale training infor lation 28 wa. 168 / MAY1996 THE ALABAMALAWYER the first question.The £actthal the defen Treadwtllsalesman and Ford Liferepre, ·Mere silence is not fraudulent in the dants committed frnud does not chllnge senlalive were aware of Mr. Miller's absence of a duly to disclose.A duty to the plaintiffs status under §27-14-19and health and lhal he did not wont credit life disclose may arise from a confidential the requirements thereunder, but il may coverage.Sufficient evidence was present relationship, from a request for informa be relevant in determining whether lhe ed th3t Mr. Miller purch.'151!dthe insur tion, or from the p;irticularcircumstances plaintiffwas prejudiced by the insurer's anceonly after the Ford Liferepresentative of the case."Nines u. RiversideChevrrr failureto complywith the statute. insisted that his poor health would not let-Olds,Inc., 655 So. 2d 909. 918 (Ala. be a problem. The supreme court held 1994).Rettnt decisionsby the Supreme /ltilleru. Dobbs/l lob/le Bay. 661 So. 2d that an insurance company is bound by Court of Alabamarecognize a duty to dis 203 (Ala. 1995). the actions of its agent when the agent closein circumstances where a defendant On February 28, 1989. Mearl Miller knows of an applicant's adverse health has superior knowledge or a relationship purchased a 1985 Ford LTDCrown Vic history and yet sells a policy without of trust with a plaintiff. toria automobile from Treadwell ~·ord. regard to that knowledge. During lhe negotiations for the sale, a Union Security Life Insurance Co. u. Treadwell salesman asked Miller if he Fraudulent suppression Crocker, 667 So. 2d 688 (Ala. 1995). intended to purchasecred it life insurance To establish a prima facie case of sup, In Union&>cw'ity I.ire In surance Co. coverage. Miller replied that he did not pression. a plaintiff must show: (1) that u. Crocker,667 So. 2d 688 (Ala. 1995), want CO\lerage,and he informedthe sales the defendant had a duty to disclose a the Supreme Court of Alabamaheld that m.mthat he was ill and wouldnot qualify. material fact,(2) that the defendantcon an agent of a credit life insurer, who has Later, after agreeing to the purchase. cealed or failed to disclose this material superiorknowledge, has a duty to disclose Miller dealL with another Treadwell fact, (3) that the defendant's conceal to an unsophisticatedins ured that bene employee who represented Ford Life ment or failure to disclose this material fits may not be paid under the policy In Insurance Company.T he employeeasked fact inducedthe plaintiffto act or lo refrain the event it is discoveredthe insured hllS MIiierif he would like to purchase credit from acting, and (4) lh3l the plaintiff knownhealth problems.E\-elyn and Cole lift insurance coverage. Again. Miller suffered actual damage as a proximate man Crockerdiscussed with Sammy Tay answeredthat he did not want the CO\.'tr· resulLDodd 11. Nelda Stl!f)henson Cheuro lor. an emplo)>eeof f'irst AlabamaBank age and told the emplO)leethat he was ill. lel, Inc.,626 So. 2d 1288,129'..l (Ala. 1993). or Choctaw, the possibilityof obtaining a Moreover, Miller, after examining the form. was aware that coverage was optional. The Tre.,dwellemplO)'ee stated that if Miller did not buy the credit life coverage,he could not buy the car. When Milleragain raised his health difficulties, lhe employee represented to Miller thnt CADSO his health would not be a problem and Computer Animationand Design Services that lhe insurance would be effective notwithstanding the state of his health. eu11rtroOJ11Prcsc11tatio11s f£Accidc11t &crc11ti0Jts Millersigned the necessarypaperworlc for credit life insurancecoverage, including a health certificate stating that he was in ~ 't good health. Soon afterpurchas ing the car, Accu1~1ce, tn ~c:1lc MiUerwas diagnosedwith lung cancer and 3-D Modcls diedapproximately eight monthslater. Joyce Miller, administratrix of Mearl Miller'sestate, brought an action against f'ord Life Insurance Company nnd Dobbs Mobile Bay. d/b/a TreadwellFord. While afnrming the trial court's dismissal or Miller's claims for fraud. which expired al her husband's death, the Supreme S1~1cor 1hc an Court of Alabamaheld that sufficienlevi cnmpt1L<'rgr.1,ph11:.~ ~mi 1•itko. dence was presented at trial to proceed under the breach of contract cla im against l'ord LifeI nsurance Company. In so holding. the supreme court held that CADSOUTH SERVICES INC. whileviev.ing the evidencein a light most 529 Oul ine Dr. Birmingham, AL. 35226 ra,'llrableto Mrs. Miller,Mr. Millernever Oflia (205) 823-8103 contended that he was in good health. in Fn...,;(2 05) 823-8171 foci, the supreme court noted that Lhe TnE Al.ABru'1ALAWYER MAY1996 / 169 consolidationl oan. On the application to was quite knowledgeableabout the qual sented that the Crockershad any knowl Union Security Life Insurance Co. for ifications necessary to obtain credit life edge or experienceco ncerning credit life credit life insurance, Taylor pre-marked insurance. Taylor testified that he knew insurance. The Crockers relied on Tay separate health disclosurestatements for that Union Security could investigatethe lor's friendship, expertise and superior both Mr. and Mrs. Crocker. Taylor Crackers' medicalhistory within the first knowledge. The court, therefore, held marked "no" on nine health questions, year of coverage, but felt that there was that Taylor had a duty to disclose to the indicating that neither Crocker had pre no other way that the couplecould obtain Crockers that benefits under the policy viously been ill. Mr. Crocker suffered, insurance. Moreover, Taylor received a might not be paidif UnionSecurity reject however, from Parkinson's disease and commission011 each policyissued , regard ed Mr. Crocker's application because or heart disease, having undergone serious less of whether benefits under the policy his poor health. heart surgery twice within U1elast ten were ever paid by the company. years. Both Evelynand Coleman Crocker According to the evidence before the Liberty National life ltrsurance Com signed their individualdisclosure forms. trial court, Taylor also was well aware of pang v. /llcAllishlr, No, 1931163. 1995 Later.Mr. Crockerdied of heart disease. Mr. Cracker's health condition. Evidence WL 129224 (Ala. Feb. 24, 1995). Mrs.Crocke r submitteda death certificate indicated that Mr. Crocker noticeably In liberty National Life fnsurance to Union Security in an effort to make a tremoredon a continuousbasis, Uiat Tay Company v. McAllister, No. 19311631 claim under the credit life insurancepol lor hadvisi ted in U1eirhome, and that Tay 1995 WL 129224(Ala . E'eb. 24,, 1995), icy. UnionSecurity deni ed coveragebased lor and his wife had V'dcationedwith lhe the Supreme Court of Alabamaheld that on Mr. Crocker's history or heart disease Crackers. Although knowledgeable about wherean agent hasa relationship of trust and his failure to disclose the condition. Mr. Crocker's poor health, Taylor pur with an insured, lhe agent has a duty lo Mrs. Crocker sued Union Security and posefully falsifiedthe health disclosure explain and fully disclose differences other defendantsfor fraud;the trial court forms, indicatingthat the couple was in between insurance policies. Edith McAl granted summary judgment in favor of good health and had no historyof illness. lister.a widow,had been a LibertyNat ion the defendants. The Supreme Court of Alabamaheld al Life Insurance Co. (''Liberty National") At the time Taylorprepared the health that substantial evidence of fraud was policyholder since 1947. In 1982. she disclosure statements for the Crockers, presented to the trial court, precluding purchased a Liberty National cancer Taylor wasact ing as an agent for Union summary judgment. The supreme court insurance policy for herself, which pro Security and due to years of experience, further held that no evidence was pre- videdcoverage for various costs associat ed with cancer treatment, including limitedhosp ital expenses,surg ical expens es, private nursing costs, and unlimited coverage for radiation, chemotherapy drugs, and prescriptiondrugs. Later, Lib O'Brien-Kreitzberg erty National embarkedon a program to Profe"ional Con,tl'lll'lion Consu ltants persuadei ts cancer insurance policyhold ers to exchange older polic.ies. such as the one McAllisterowne d, for new can cer policies. The new policies increased Responsive to the demand s of your coveragein certain areas. but limitedcov erage for radiation and chemotherapy construction related case treatments as well as prescriptiondrugs. In 1987. Rick Mclendon, McAllister's Liberty National agent, represented to Objective in our analys is of dispute s and McAllister that the new LibertyNationa l claims cancer policy "was a better policy and had better coverage" than lhe existing 1982policy. Mclendon failedto disclose Effective in dispute resolution and to McAllister that certain beneiiis under the 1982 policy would be limitedor elimi litigation nated by the 1987 policy. McAllister did not review lhe new policy at lhe time she agreed to purchase it, but testified that 260Peaclnree St .. N.W. 1 East Broward Boulevard Suite1800 Suite700 P. Le igh O'Dell Atlanta,Georgia 30303 Ft Lauderdale,Florida 33301 P. lmg h O'Dell is an associa te wrlh Beesley, WiJ.. (404)524-5505 (954)468-0065 son, Arlen. Main & Crow io Montgomery. Alabama.. She is a fo,me, law <:leJk lo 1he Honorab le Ira AdditionalOffices Nationwide 0..Menl, United Slatesll,stuc t Juogo for the MAAI."' Internet: [email protected] Oistric;L ol Alabama and a gr aduate ol Aubu,n Uni· ve,Sttyand 1heU niversity ol AfabamaSc hool ol Law 170 / MAY1996 Tl-LEALABAMA LAWYER she "trusted" him. Morto11er.at the time tht new policy, either directly through charged by First Family on the loan was she agreed to switch p01icies,McAllister its agentsor through a sales brochure. 16 percent, with EquiSouth, in accor• was gi,-ena brochure describingthe cov McAllisterhad a relationshipof trust with dance with its arrangement with First erageprovided by lhe new policy, bul lhe Mclendon. Based on that evidence,the l'llmily, able to add up lo 2 percent to brochure failed to contain any compar su11rc111e court held lhnl il could be the interest rate. 1n addition, First Fam isons between the coverage under the found that McLendonhad a duty lo assist ily paid EquiSouth 75 percent of the pre· 1982policy and that of the 1987policy. McAllisterin understanding the differ sent value orthe 2 percent spread as an In 1992, McAllister'saunt was diag ences between the old and new palicies additional fee, which was not disclosed nosed with cervical canctr. McAllister's and that the brochure which Md.endon to the plaintiffs. The loan was to be aunt had previously purchased an old provided did not fully discloseall of U,e closed with funds provided by First cancer p01icy.which she had exchanged material facts relating lo the reduction Family,with the note immediately being for the newer policy. After McAllister's of coverageunder lhe 1987policy. assigned from EquiSoulh lo First Fami aunt was diagnosed, McAllister's aunt ly following the closing. Plaintiffs con le.,med that the policywould not cover Smith u. First Family Flnanc:ial Ser tended that Alabama law required many of her medicalbills. Mer discussing vices, Inc. , 626 So. 2d 1266 (Ala. EquiSouth and First Family to disclose U,iswith McAllister,McAllister discovered 1993). the origination fee and yield spread pre the differeru:esbetween the I982 policy In Smith v. First Family Financial mium as a finance charge and that the and the 1987policy for lhe firsttime. Services, Inc., 626 So. 2d 1266 (Ala.. pa}ment of 75 percent of the additional McAllister sued Liberty National for 1993), the Supreme Court of Alabama 2 percent origination feeviolated Alaba misrepresentation,deceit. nnd fraudulent held that a mortgage lender has a duty ma law because EqLLiSoulhco llected in suppression; a jury awarded her Sl,000 lo fully disclosea yield spre.idpremium excess of the 5 percent origination fee in compensatorydamages and $1 million to a borrower. Billi, Jo Smith and permitted by statute. in punitive damages.On appeal, Liberty Thomas L. White sued First Family Neither First Family nor EquiSoulh National contended that the trial court Financial Services. Inc. and others for disputed that the plaintiffs paid an erred by submitting McAllister'sfraudu fraud for failure to disclose all finance amount in excess of the 5 percent maxi· lent suppressionclaim to the Jury.Accord charges relating to a residential marl· mum origination fee under the loan nor ing to LibertyNational. lhe salesbrochure gage and for charging J)laintiffs points the foct that lhe loan was a consumer provided to McAllister fully disclosedall In nn amount in excess of that allowed loan lrnnsaction covered by the Mini material facts pertaining to the p01icies, by statute. Codeof Alabama,which requires that all and therefore, LibertyNational was enti PlaintiffSmith 's house was destroyed finance charges be disclosed by the tled lo judgment on McAllister'sclaim by fire. Smith purchased a shell of a lender. Section 6-5-102 orthe Codeof for suppressionas a matter of law. house with the lire insurance proceeds Alabamacodifies lhe common law rule The Supreme Court of Alabamaheld and sought a loan from EquiSouth lo that an action for fraud ariseswhere one lhal McAllisterhad presented substan linish the dwelling.EquiSouth submil· with a duly to discloseconceals or with lial evidence from which a jury could led Smith's application to First F'amily holds a material fact. See A la. Code§6· rind that Liberty National was under a for nP1>roval.Pirst l'a111ilyconditionally 5· 102 (1993). The Alabama Consumer duty to explain to McAllisterthe differ· agreed lo loan Smith the money when Credit Code, codined nt §5-19-1 to §5· ences between the 1982 policy and U,e her brother agreed to co-sign the note 19-31 of the Codeof Alabama, "makes 1987 exchange policybefore selling her and application.The annual interest rate material all finance charges payable r------, CHILD SUPPORT Name: ______Software ver. 2.0 Fim1; ------cs~AL from Eri&T cchnoloBics. Inc. Address: ------ Ci1y: Si:_ Zip· __ •__ New Window s version! MSDOSc, , 1.16) q1y:_ S89.9S+S8.9Ss/h Tollll. s __ Loaded with new features! Write for information . Wi.ndows(v 2.00) qty:_ $149.00+S8.9Sslh Tola]: s _ _ MS-DOS v 1.16 also available Ck:_ MO:_ Visa:_ MasterCard:_ Ex11ircs: _ /_ ~i' Compliant witl1Alnbnmn Supreme Court order or Sign.iturc: ______9/28/93 Cnrd#: DiskSiu 3~_ SY._ Q' Requires IBM-compatiblecompuler with MSOOS 3. 1 or lalCf(Windows \'crsion requires Windows 3. 1) Mail to: ~ Erif-Tcchnologia. Inc. 3928 Mon1clairRd ., Suite 134, BilDlinghrun, AL 35213 Tl IE AW\BAMALAWYER MAY1996 / 171 directly or indirectly by Lheborrower as relationship and more importantly, not and convincing evidencethat Lhedefen an incident to crediL"SmUh , 626 So. 2d disclosing all of the finance charges dants had an intent to deceive or had at 1268. ~'urthermore,§5-l 9-4(g}allows incurred by tile plaintiffs as a result of committedgross , oppressive,or malicious a creditor in a contract involving real the loan. conduct. Hinesappealed. property to charge and collect points This case is important in severa l not to exceed fivepercent of the original Hill es v. Riverside Chevro let-O lds , respects.F'irst , the supremecourt . empha· balance of the principal. l11c., 655 So. 2d 909 (Ala. 1994). sizing the defendants' superior knowl The Supre me Court of Alabama Richardand Linda Hines purchasedan edge that the car had been repainted and opined that "It]here is no question that Oldsmobile automobile from Riverside the likelihood that the plaintiff would such payments 175percent of the 2 per Chevrolet.Apparently, the left rear quarter not otherwise have purchased the vehi cent spreadl are part of the total nnance panel of the car had been repainted by cle if he had known that fact, held that charges borne by the borrower under General MotorsCorporation before deliv the question of whether the defendants the Mini-Code and, as such. are ery of the vehicleto the dealer.After sever had a duty to discloseshoul d have bun required lo be disclosed Lothe borrower al months, Mr. Hines noticed a slight submitted lo the jury. under Alabama law."Id. at 1272. Conse distrepancyin color betweenU1e paint on Because the Hinescswere mem quently, the court reversed U1ecircuit the left rear quarter panel and that on the bers of a group or classof persons court's grant of summary judgment and rest of U1ecar. When he was unable to who General Motors expected or found that substantial questions of resolve this problem with the dealer, he had special reason to expectwould material fact existed as to whether the filed this lawsuit alleging fraudulentsup be inOuencedby its decision not to defendants had a duty to disclose tile pressionand misrepresentation.The trial disclose information about the overcharge of points. The court held court granted summaryjudgment finding repaintingof damageda utomobiles, that although U1erewas nothing illegal that lhe defendantshad not suppressedor GeneralMotors and the Hi.nes have about EquiSoulh acting as a morlgage concealed any material fact because the a sufficient relationship on which broker to First Family's role as mortgage repainting of the car was not a material to basea duty to disclose. lender. questions of fact existed as to fact and that the evidence was insufficient Hines, 655 So. 2d 920. The suppressed whether the defendants violated Alaba to support a "claimfor punitivedamages," fact was material because the Hineses ma law by not properly disclosing their becausethe plaintiffsfailed to presentclear presented sufficientev idence from which an impartial trier of fact could infer that the process employedto repaint c.irs with damaged or defective paint produces a markedly inferior paint rinish. Whenyou need expert valuation or Perhaps the most important issue pre sented by this case is 1vhelherthe plain litigationsupport, call the specialist. tiffs were required to present "clear and convincing evidence of intent for the purpose of submitting the issue of puni CertWedFraud Examiner Ralph tive datru1gesto the jury." To resolvethat Summedoro,CPA. has devoted a cam.'! issue, the court considered the interac tomaking swNttomcys get the expert testimony,depositioo help, and case tion between the requirement of proof relatedanalysis that your case's sucu,ss by substantial evidenceto submit an issue dependson. of fact to a jury provided by Code of For~ r 20yean, attorney~ have re Alabamo §12-21-12and the requirement Uedon himfor business valuations, fo of clear and convincing evidence for rensic accounting,lnvestlgatJ\ •e ac impositionof punitive damages provided counting(civil and criminalrn. ,tt~). by Code of Alabama §6-ll -20(a). After andpannershlpandestatedilj)Utes. All in all,altorneys have found bis help considering the purpose of those invaluableIn calculatingdamages. statutes. the court reasoned: Hea 111lrtlp )"" ' too. Section 12-21-12(a)establishes Call11 0w (ora fret (Ql!SJ,/(a tlo,1. the quantum of e-adencenecessary SummerfordAcco untancy.l~C. to submit an issue of fact to the Cllllfl(O tUllt( A((OUll'UIISl UAUDU UIIIHli trier of fact,w hen the sufficiencyof ~~-,.,.....~·-u, ui,-a:...lllll'll the evidenceto support an issue of Call today fact is tested. Unlessa higher stan f dard is provided by statute. rule or g decision, substantial evidence is 205-716-70000 sum 1530• Al>1SOUrH/ HARBERTPLAZA • 1901SIXTH AVENUE NORrH • BIRA\INGHAM. Al • 3S103 required to submit an issue of fact to the trier of fact. §12-21-12(c). This statute limitsthe authorityof a 172 / MAY1996 THEALABAMA LA INYER trialcourt to ~l an issueo( lact findspunitive damages are appropriate, policyand .,.,.;thina few >"211'$the premi to the trier of fact. a second phase of the trial will begin um had escalated lo lht point where it Section 6-Jl-20(a), however, during which the jury will be provided representedone-third of Johnson's fixed limits the authority of the trier additional evidence and instructed to income.The jury awarded$JS million in of fact to award punitive dam apply a number of factors In determin punitivedamages. Th e trial court. apply ages-that is, a trier or fact may ing the appropriate amount of punitive ing the factors from 1/(lmmond and award punitive damages unless damages. In addition. 50 percent of any Green Oil, reduced the verdict to the plaintiffproves by "clear and punitiveaward (after attorneys' fees and $12,500,000.The supreme court, with convinc.ing· evidence lhal the expenses)will be paid lo the State Gen out condoning the obviowly egregious defendantconsciowly or deliber eral Fund. conduct of Life of Georgia, reduced the ately engaged in oppression. This remarkableopinion aroseoul of a verdictto $5 million. fraud, wantonness, or malice rather ordinari• sel of facls. Daisey L. The court used this case as a venicle with regard to U1e plaintiff.Thus. Johnson sued LifeI nsurance Companyof lo make lwo substantin l changes in by its very language, §6-11-20 Georgiaalleging that it had engaged in Alatmma'ssystem for awarding punitive does nol define lhe stllndard for intentional and recklessfraud by selling damages. First. the court providedfor a determining whether a genuine her a Medicare supplement insurance bifurcated trial on the issue of punitM issue of fact. material lo a claim policythat was worthless to her because damages. allegedby the plainliff,exists for she was eligible for Medicaid.Although The lrial court shall charge the the trial court lo submit to the Johnson, an 84-year-oldwoman with a jury on the approprfotelaw, a nd the trier of fact; rather, il defines a third.grade education, was already pay Jury shall first determine liability standard of proof for determin Ing premiumsto Lifeof Georgiaon nine and the amount of compensatory ing whether lbe lrier of fact has, differentpolicies, she was approachedby damages.if any. Thejury will also or had, the authority to award an agent who recommended that she decide by special verdict whether punitivedamages. purthase a Medicaresupplement policy. the evidencejustifies the imposi Hinr:s,655 So. 2d at 925:see Ex parte The agent told Johnson she neededlhal tion of puniti\.'t! damages. If lhe j UI')' Norwoodlfodges No/or Co.,No. 1930150. policyso that if she \\"enlto lhe hospital answers the special verdict in the 1995\\~ , 560027(Ala. Sept. 22, 1995). ''you wouldn't have lo worT)'abou t your affirmative,the trial shall ri!Sume. The court emphasizedthat there is no doctor's bill." Johnson 1iurchased the In lhe second parl of the bifur- "claim for punitivedamages," but rather certain claims (such as wantonness)will support both compensalol')'and punitive damages.The Court appearedt .o leaveto BLUMBERG EXCELSIOR'S the trial court the authority to refuse lo inslruct the jury on punitive damages when the plaintiff has not submitted clear and convincing L'Vldenceof intent o/~ .54bJt-~!#~ lo authorize the trier of fact lo award punitive damages. This case should be 5 studied in detail by any attorney who 275 practices in the areas of litigation often Ideal for Laser Printers involvingpunitive damages...... Includes : 1,000 Letter heads and Envelopes 500 Business Card s, 500 Plain Second Sheets Also includes dies and a proof. life of Georgia o. Joh11so11,No. 24 lb., 25% Cotton.Laser Finish, White or B3mboo. 1940357, 1995 Wt 683857 (Ala. Nov. Recycled Bond $275 17. 1995) 24 lb., 50% CottonLaw Bond. Whit e, Bamboo On November 17, 1995. in life of andLaser Whit e $285 Georgia11. Johnson, No. 1940357,1995 Cra11e'sa 11d Gilbert paper at additio11alcost WL 683857 (Ala. Nov. J7. L995), the ...... supreme court made major changes in E11gravingp/a11ts / 11A lba11y, NY a11dOr/a11do , FL the i\labamasystem for awarding puni Call/or san,pl~s a11dltga/ supply catalog, tnoedamages. The court held lhal in the ,aooJ121.29n, =· soJ. future wherepuni~ drunagesclaims are made, the jury will be given a special interrogatory Lo determine whether or Blumberg~ce l~,Q,r not punitivedamages shou ld be awarded against a defendant. Assuming the jury THE ALABAMALAWYER MAY1996 1 173 cated trial, the parties shall be 5. Cost of litigation to the plain and satisfied shall be allocated as permitted to int roduce all evi tiff. follows: After any post -verd ict dence, financial or 0U1erwise, that 6. If defendanthas receivedcrimi review is conclude d by the trial is relevant to the question of what na I sanctions, that should be court, and after appellate review, if amount the verdict should be to taken into account in mitiga any, the amount of the judgment as accomplish the purpose punilive tion. finally determined shall be paid damages were designed to serve. 7. Ir there have been other civil into the trial court The trial court All evidence presently admissible actions against the same defen shall order all reasonable expenses al a post-verdict Hammond/Green dant based on the same con of the lit igation, including the Oil hearing may be introduced duct, this should be taken into plaintiff's attorney fees, paid. The before the jury retires lo consider account in mitigation of the tria l court shall then order the its punitive damages verdict. The punitive damages. clerk of the court to divide the jury is to be guided not only by remaining amount equally between From Hammond: the factors set forth in Hammond the plaintiff and the State General I. Culpability of defendant's con and Green Oil, bul also by those Fund. duct. factors stated in the statute and in Id. at 28. 2. The desirabilityof discouraging other case law. Davis Carr, writ others. Justice Maddox dissented from the ing in The Alabama wwyer, has 3. ''The impact'' on the parties. portion of LheOpinion allocating a por offered the following compilation 4. "Impact" on innocent third par tion of the punitive damage award to or factors, drawn from both case ties. the state. In his opinion, that issue is law and statute, lhat can be con From Holloway /Ridout's one solely directed to the responsibility sidered: BrowrzService, Inc. v. Holloway, of the Legislature. Justice Bulls issued f'rom lhe statute [§ 6-11-23. 397 So. 2d 125, 127(A la. 1981)1: a separate dissent on the al locat ion Ala. Code 1975 (Supp. 1989)): The punitive damages award issue. He agreed with Justice Maddox l. Nature, extent and 'economic should sling, but ordinarily it that it was the Legislature's determina impact' of verdict on plaintiff or should not destroy. tion whether a portion of an award defendant. should be paid to the state, if so, what f'rom Wilson DukonaCorp. 2. Amount of compensatory dam /v. percentage the state should receive, and N. V., 547 So. 2d 70 at 73 (Ala. ages. to what fund or agency the monetary 1989)1: 3. Whether defendant has been awards shou ld be allocated. Justice Defendan t's "right lo fair guilty or similar acts in the past. Butts also indicated his strong opinion punishment" must be consid 4. The nature and extent of any that an)' change in the allocation of ered above plaint iffs right to effort by defendant to remedy punitive damages should begin only in recover the fullest amount of the wrong. future. punitive damages. u,e Prom Green Oil: The court has agreed to rehear the 1. Does the puni tive damages From wvoie /Aetna life Ins. case. It is unclear if the court will per award bear a reasonable rela Co. v. Lavoie, 505 So. 2d 1050 at sist in the direction of reform direction tionship lo the harm likely to 1053 (Ala. 1987): or withdraw its earlier decision. If the occur from the defendant's con "A comparativeanalysis with court chooses to reaffirm their earlier duct? other awards in similar cases.'' decision,ma terial and sweeping changes 2. The degree of reprehensibility of life of Georgia,No. 1940357,s lip op. will result in the way fraud actions are defendant'sco nduct, including: at 22-24. The decision to establish this litigated in Alabama. (a) the duration of this con bifurcated process was unanimous duct; including the vote of the new ChiefJus Boswell v. Uberty National life Insur (b) the degree of defendant's tice Perry O. Hooper, Sr. anceCo., 643 So. 2d 580 (Ala. 1994). awareness of any hazard The court then considered the severe In Boswell v. liberty National life which this cond uct has criticism of recent years "that punitive fnsura11ceCc., 643 So. 2d 580 (Ala. 1994), caused or is likely to cause; damages awards sometime amount to the Supreme Court or Alabamahe ld U1at (c) any concealment or COVl!r· an undeservedwindfa ll to the prevailing a plaintiff who alleged that a defendant up of the hazard; plaintiff." Id. at 25. The court conclud fraudulently induced lhe plaintiff t.o pur· (d) existence and frequency of ed: "It is appropriate and fair that some chase "less valuable" cancer policy stated similar past conduct. part of the civil fine imposed by juries a claim for fraud even though no claim 3. Punitivedamages shou ld remove in the fom, of punitive damages awards had been made under the policy. Wilhel the profit, if any, from the defen. should be devoted to ·the general wel mena BosweUsued Liberty National Life dant and should be in excessof fare of all citizens of Alabama." The Insurance Company alleging misrepre the profit so that defendantrec court, therefore, held: sentation and fraudulent suppression in ognizesa loss. Hereafter, all punitive damages tile sale orcancer insurance. 4. Defendant's ''financial position." judgments that have not been paid Plaintiffa lleged that LibertyNationa l, I 74 I MAY1996 THE ALABAMALA \o\lYER through ii$ agents. told her that a Boswell.643 So. 2d at 582. Endnot es 1 In£.<__ &rpr,d _ lM_ Ct>. "newer and better cancer policy"would The court recognizedthe potential Ml SO 2d !IS!.9l5S (AIL 199Sl, .. a..,,.,. C..., provide additional benefits and more for confusion by the trial bar in light of of Allbatnl held Iha: en murer ...... bulineM complete coverage than the old policy the two distinct lines of caseson the """"'fW-51n1-- .. ~ had providedto induce her lo exchange rs.~ueof whether damagehas been suf rNldf It'd where G engagesIn l)'llomltle oorre ij)OiO. OOI lhe old policy for the new one. In fact. fered from an insurer's fraud where no i In £.II09 CO THE ALABAMA LA\\/YER MAY1996 / 175 I D)Unes ccountanl was disabled in an future wages that are foregonebecause used for projecting future wages. The tomobile accident and is inca of an injwy. Lost wages depend on the wage growth rate ma)• be determined le of continuing his full prac current wage, wage growth rate, and from the wage history of the plaintiffs tice. A mother of roung children is the number of years remaining in the employer or governmental census sta dis.ibleddue lo an injury and is not able plaintiffs work life.Afler collectingthis tistics. The rate may vary by the plain lo continue working in her parl-lime information, the current wage is pro tifrs age due lo seniority, experience Job.A foctoryworker whose job requires jected over the future work life using and personal productivity. Over a per signlncant physical activity has a hand the wage growth rale. Thus, a stream of son's career. the wage growth rate may iajury froma job-relatedaccidenL future wages is determined. The three increase rapidly at the younger ages, Besidesthe physicalinjuries. what do componentsof lost wagesare discussed increase more slowly in the middle lhtse individualshave in common?Their below: ages, and level off or evtn decline in the future earnings may be reduced due to CuJITnt Wage The current wagemay years beforeretirement. lhe iajury.~ of the nnancialimpact bebased on last year's wage if that is an on their clients. boU,plaintiff and defense accurate represenwtionor lhe plaintiffs Remuin/119Work life The last com attorneys should be interested in the current earnings' capacity.A tax return ponent in calculating the lost wages is quantificationof reduced earnings. This can often be used to confirm the las! the numbar of years remaining in the quantification should be objective,and year's wage. Ii the plaintiffonly worked work life of the plaintiff. The work life provide neither a financial windfafl lo for a portion of the year due to the may \'iry by occupation, sex. education the plaintiffnor penaliu the defendanL injuyy,last year's wage may need to be and other \'ariables that are specific to ll should simply make the injured party annualized in order lo project the earn the plaintiff, such as rned1calhistory. economically whole. ings for the entire year. For an hourly Certain events may shorten the remain But how can this loss of earnings be worker, an alternative lo using last ing work life and may be considered quantilalively determined? We suggest year's wagemight be Lhecurren t hourly when calculating the lost wages. Those the followingas a straight forward and rate multipliedby the expeclednumber events mighl include: objectivemethod of determiningthe loss: of work hours in a rear. The expected • Reducedwork life expectancyresult Lossof Earnings ; hours may need to be adjusted for any ing from an early retirement program Future Lost Wages upecled periods of sickness or unem of(eredby the plaintiffs company. + Future Fringe Benefits ployment. For young people still in • Plainlifrs failure lo minimize dam school, the impact of college education + Future NonmarkelServ ices ages. For example, the plaintiff may on future earnings can be determined fail to accept alternalive employment - Future Earnings from by reviewingschool records. education· or vocational training, fail lo take Alternative Employment al level of parents and siblings, college medication, fail lo follow a doctor's Lefs lake a look al each component major, and any hobbies indicating recommendations for therapy or of the loss of earnings formula. employmentinterest. recovery, or decline rehabilitative surgery that does nol impose a sub l.0,1 W31(es ll'a11eGrowth Rat. The next compo stantial health risk. J>irsl,the plaintifrs lost wagesare the nent is the wage growth rate, which is 176/MAY 1996 THEALABA MA LAWYER • Phasing out of lhe plaintiffs occupa may be based on information from the ponents of the loss or earnings equation, tion as a rcsull of technological plaintiffand family. we tum now to other considerations. advances. The value of the nonmarkel services might be lhe number or hours neededto Tu THE ALABAMALAWYER MAY1996/ 177 ln cases involvinga death. the expenses • Workethic of parents. basedon a safe investment,s uch as U. S. related lo the injury, such as medical • Courlrecords, ff any,of the decedenL Treasury Bonds. Dependingon the cir and funeral expenses, may be included cumstances,AM corporate bonds might in the loss of earnings. However, the Present ValueCalculation also be consideredbecause of Uleirhigh expenditures related to the personal Afterprojecting lost earnings for each er yield and high investmentquality . consumption of the decedent should be year of the remaining work life, the There needs to be a consistencyin the deductedfrom the loss of earningssince income stream is normally discounted treatment of inOationon interest rates those expenditures cannot occur. at an appropriate interest rate to deter and wage rates. An inflationadjus tment The consumptionexpenditures include mine today's value (present value). The shou.ld apply to both the interest rate all personal consumption (not just eco present value calculation is necessary and wage growth rate, or should apply nomic necessities, such as food,c loU1ing because today's money is worth more to neither. Otherwise,the present value and shelter), and tw ically exclude non than tomorrow's money. Por example, calculationmay be materiallym isstated. personal expenditures (such as family Sl,000 todayis worU1more than $1,000 The valuation date for the present housing costs). Personal consumption in one year because today's $1,000 can value calculation should be as close as expenditures include the costs of gam earn interest during the year. Stated possible to the current date so that U1e bling, alcohol and hobbies. A reviewof anotherway , less moneyis required today latest information on interest rates can the decedent's life style, reputation and to fund a future paymentbecause of the be employed. Purther, if lost income morals may indicatethe spendinghabits. interest earned. has occurred after the date of injury For young people, fulure personal The interest rate used in the present and before the valuation date, those consumption might be determined by value calculation may vary by state. losses should be accumulated at inter examining the following: Generally, a state requires an interest est to the valuation date. The total lost • Educational level of parents. sib· rate that is basedon (al state legislation. income as of the valuation date is the lings and decedent. (bl rules of the court, which is usually (a) accumulatedva.lue of past lossesand • School recordsof decedent- writ set by the state's highest court, or (cl (b) present value of future losses. ten comments in the file may be as case law.The interest rate can also vary important as the grades. by the type of case. Summar)' • Pamily's value of education. lf there is latitude in selectingan inter The many assumptions and methods • Workhistory of parents. est rate. most courts will accept a rate used in calculating the loss of earnings must be selected carefully because they may have a material impact on the final settlement. Because each situation is t i yoursi lts on tlit "l:..'nlllOldClt)' .. -S taule. unique, a significant amou.nl of exper xpforrnwgt1iji u 11ts11ow •capped/.1ou11t Ra b1/er or drivt 11pID tise and judgment is necessaryin select "H1,rrica11tRidgt .. / or \•i~ s o/ tht Olympic Na1ionnlPark. ing the most appropriate assumptions sctnic cruise on PugetSound. tllelf lurtdild inner at TJ1e Ctt.1bPot and methods. • Jtasti11gon steamedd1u1ge,1e s.1c rabsand lob ster is a n,usr. aua 20-mimue dri•~ 10 S,1oqU1Jlami, Falls (plu11g/11g270/ w / w,d Jame s B. Sm ith JMlOSB Smllh.Jr., FSA. t.11}oy luncl1at St1lUhlod ge, silt of 1he Twi,rP eaks telem.siott seriu . MAM , is a coosufling actuaryw ,1tlKPMG P eeJ rk Iii 178 / MAY 1996 THEALABAMA LAWYER Each of us has, on many occasionsthroughout o ur lives, hurriedlych011ted th e "Pled_qeof Allegiance,"rush ing throughit s powerfulwords to get on with the game,class or other event.How often have we reflectedon the visionexpressed in just four short words.the endingphrase of our nationalpledge, "and justice for all?" "And justice for all,• a basic tenet of our society,remains the core valueand missionof the legal Servicespro grams in Alabama.Day to day, legal Serviceslawyers prouide quality legal representationin civil molters to low incomepersons, thus guaranteeingaccess to a justice system otherwiseauailable only to thosewho can pay the pricefor a lawyer'sservices. The legal Servicesprograms in Alabamagratefully acknowledge and thank the followingindividuals 011d firms who made a financialcontribution to the 1995Partners for Justice, a fundraisingproject of the l..egalSer vicesprograms in Alabama.In doingso, they have joined with Legal Servicesattorneys around th e state who dailyk eep a/iuefor all peoplethe visionand IJ/edge."and Justic e for all." ,lf111V.4GtNGP,IRTVERS Edwards & Edwards MichaelD. Waters F'rankM . Wilson EdwardN. Friend. Ill MelindaM. Waters Judge and Mrs.John L. Godbold sr• /OR l'•tRTN/iRS Brock B. Cordon l.\'iOCI.IT S MichaelJ. Crow John C. Hall, [[I C. P. Armbrechl,II Southern PovertyLaw ~nter, Inc. RandallS. Haynes Cigi Armbrecht Ernestine S. Sapp J. O. Isom BelindaA. Barnett M. EdwardStill. Jr. Jones and Davis SUS11nB.BC\'ill Thomas C. Keith WilliamN. Clark JL WOR PtRTNERS Gilbert B. Laden,P.C. William Z. Cullen Jere andSara Beasley Robert H. Loeb M. Donald Davis,Jr . Briskman& Binion l)on B.Long, Jr. P11tricia A. Davis Michnel I,, Edwards Frank 8. McRight C. nick DiCiorgio,P.C. Warren B. Lighlfool John E. Medaris Robert L. Conce ). t'rcd Powell OakleyW. Melton , Jr. Richard r. Ogle ThomilS,Means & Cillis. P.C. Julian L. McPhillips,Jr. Herbert W. Peterson Al Vreeland,[I MIiier,I lamlllon,Sn ider & Odom, LLC Robert R. Reid.Jr . Mr. and Mrs.James R. Morgan RobertS. Robertson SE ''/OR lSSOC/. ITES PhyllisS. Nesbit Robe_rtH . Woodrow,Ill J. GregoryAllen John A. Owens Davidand Laura Woodruff James U. Blacksher OlividR. Pe~ler Pamela H. Bucy.Professor or Law A5aR ountree, Ill JI ..;,ap l'/SlX'HTeS RobinL. Burrell,P.C. Robert D. Segall M.irkIV . Bond Htnry H. Caddell J. Timothy Smilh Bullram & Henderson Kenneth R. Cain. Jr. Charles A. Stakely J. DavidEllwanger lion. Sue BellCobb, Judge Thomas L. Stewart Jerome S. Cnmd Brittin T. Coleman Ceorl(ePeach Taylor J.E. Sawyer,Jr. WilliamD. Coleman C. C.T orbert. Jr. James A. Tucker THE ALABAMALAWYER MAY1996 / 179 DISCIPLINARYREPORT Reinstatement pension effectiveJanuary 22, 1996. Jones was suspended pur • Tuscaloosa attorney William Eason ~Utchell was removed suant to Rule 20(a), AlabamaRu les of Disciplinary Procedure. from disability inactive status and reinstated to the active prac The Officeof General Counsel had filed a petition pursuant tice of law, effective January 26, 1996, by order of the Alabama to Rule 20(a) based upon an affidavit of a member of the Supreme Court dated Pebruary 12, 1996. (Pet. No. 95-004) MobileBar Association GrievanceCo mmittee to the effect that Jones was being investigatedon a bar complaint which alleged Disbarment that he had misappropriated funds of a client. The affidavit fur • Birmingham attorney John Freeman Tann er was dis ther stated that documentation obtained during the investiga barred by order of the Supreme Court of Alabama, effective tion of the complaint showed that Jones had received checks January 24, 1996. The order of disbarment was based upon from the Mobile County District Court pursuant lo a garnish Tanner's affidavit and consent to disbarment where in he ment proceeding he was processing on behalf of a client, bul admitted that he had pied guilty to felony charges in state and that none of these monies had been remitted to the client. Fur federal court, specificaUy, a charge of theft:o f property in U1e ther, Jones had failed to respond adequately Lo the complainl Circuit Court of Shelby County, and a two-count information and could not be located by the investigator for the Mobile Bar filed in the United States District Court for the MiddleD istrict Association Grievance Committee. of Alabamac harging conspiracy to commit mail fraud and tax Based upon the Officeof General Counsel's petition, the Dis evasion. I Rule 23(a); Pet. No. 96-01I ciplinary Commission interimly suspended Jones. Thereafter, Suspension the supreme court entered an order consistent with the order • Mobile attorney William Grover Jones, ID was interimly of the DisciplinaryCommis sion which suspended Jones from suspended by order of the Supreme Court of Alabama,said sus- the practice of law and restricted him from maintaining a trust account on the grounds that his actions caused great public harn1. IRule 20(a); Pet. No. 95-081 Public Reprimands • Phenix City attorney Gregory Kelly receiveda public repri FHL Capital mand with general publication on Pebruary 9, l 996. Kelly was employed by a client to obta.in an uncontested divorceand was An Investment banking fi rm speciah1i11gin mergers, paid his fee, in full, in advance. Thereafter, l(elly (ailed or acquisitio,u~ business va/ualio11s, /ai rne.ss opinions refused to take any action with regard to obtaining the divorce and financial advisory services . as he had been paid to do. Despite repeated attempts on the part of the client to obtain information from J 180 I MAY1 996 THE ALABAMALAWYER of his representation assisted the bank in an attempt to dealership or lo take any other action on behalf on the client defraud the bank's insurance carrier. Medarisrepresented the in connection with her claim. Furthennore, Krouller falsely bank in a number of legal matters.one of which was a lawsuit represented lo the client that he had filed suit against the that had been filed against the bank concerning checks which automobile dealership when he had not done so. On at least the bank had accepted and which allegedly contained forged seven occasions,Kroutler represented to the client that a dale endorsements.The bank had insurance coveragefor any liabil· had been set for the trial of her c.1seand on each occasio1, he ily resulllng from the suit, but the deductible was $25,000. contacted her prior to the nlledged court date to tell her that il Mcdaris billed the bank on a monthly basis for work done on had been postponed. the lawsuita nd for work done on matters unrelated to the law• Eventually the client made inquiry of the clerk or the circuit suiL Each month during the representation. Medaris sent the court and was informed that no lawsuit had been filed on her banktwo bills.The first was itemized and ref1ectedcharges for behalf.Thereafter. Krouller acknowledgedlo the client that he work done on the lawsuit and separate charges for work done had falselyrep resented lo her that a lawsuithad been filedand on other unrelated matters. The second bill. however,was not also admitted that he had allowedthe statute or limitations to itemized 1111dfalsely ref1ected that the entire amount of the bill run on at least some or the relief to which she may havebeen was for the work done on the lawsuitwhen, in fact, part of the entitled. Kroulter represented to the client lhat he would pro, bill was for work done on other unrelated matters. Medaris vide her with a replacement vehicle at his own expense but advised lhe bank lo use whichever of lhe two bills ''would be subsequently failed or rc[used to comply with this promise. most hel11ful".Th e second bill constituted a willful misrepre When the clie.nl filed a complaint against l(routter, he was sentalion of the amount the bank owed Medaris for his ser· requestedo n at least fiveoccasions, two of which were by cer vices in connect ion with the lawsuit. This willful tified mail, to respond lo the complaint but he foiled or misrepresentation was made b~ Mcdaris for the specific pur· refused to do so. pose of allowing the bank to falselyrepresent lo its insurance Disciplinewas imposed for violation or the foll THE AlABJ\MALAWYER MAY1996/ 18 1 provides a lawyer shall not willfully neglect a legal matter after, the Third Circuit Court of Appealsdismissed the appeal. entrusted to him; Rule 1.4 which requires a lawyer to keep a By and through other counsel, the client was eventually able client reasonably informed about Lhe status or a matter and to have the court reopen Lhe appeal and extend the briefing promptly comply with reasonable requests for information; schedule. Rule 8.1 which provides that a lawyer shall not knowinglyfail The Disciplinary Commission concluded that Samsil's to respond to a lawful demand for information from a discipli· actions violated Rule J.J, in that he willfully neglected a legal nary authority; Rule 8.4 (c) which provides that it is profes matter entrusted to him, Rule 8.4(a), in that he knowinglyv io sional misconduct for a lawyer to engage in conduct involving lated the Rules of Professional Conduct, and Ruic 8.4(g), in dishonesty, fraud, deceit or misrepresentation; and Rule 8.4 that he engaged in conduct which adverselyrenects on his fit. (g) which provides that it is professional misconduct for a ness to practice law. JASBNo. 94-314) lawyer to engage in any conduct that adversely reflects on his • On February 9, 1996, Anniston attorney Hilliard Wayne fitness to practice law. (ASBNo. 95-004] Love received two public reprimands with general publication • On l'ebruary 9, 1996. Montgomery attorney Elna Lee from the Alabama Slate Bar. In ASB No. 95-054, Love was Reese receiveda public reprimand without general publication hired to foreclose on some property for a client. Love delayed from the AlabamaState Bar for engaging in conduct that was filing the foreclosure, and the debtor filed for bankruptcy and prejudicial to lhe administration of just-ice.T he reprimand was sold a mobile home located on the property that belonged to the result of a plea agreement with the bar. In November1 991, Love's client. During this same period of lime, Love began Reese was serving as county administrator for Montgomery serving a 45,day suspension arising out of another disciplinary County. During November, another lawyer called her and matter. However, Love never notified this client of his suspen asked if she would open an estate for him so he could sue the sion. A creditor's meeting was held on January 26, 1995, but estate and an insurance company. Reeseflied a petition for let Lovedid not attend because he was unable to practice at that ters of administration on behalf of the estate. Her petition stat· time. The Disciplinary Commission found that [..ovehad ed that the deceased had died intestate and had no heirs and engaged in willful neglect of a legal matter and a failure to no assets in his estate. This was not correct. Reese did not communicate with his client about the status of the matter. ln check the probate court records to determine ir there had been ASBNo . 95-073. Lovewas hired by a South Carolina woman to a prior estate. The probate court treated her petition as a re handle an ancillary probate of her mother's estate. Most of the opened estate. On January 14, 1992 a suit was filed in Barbour property was in l'lorida. Love was paid SSOOplus a $60 filing County against the insurance company and the estate opened fee. From that point on. Loved id little or nothing on the case. by Reese. During September 1992. the wido1\/learned from lie failed lo communicate with the client and the estate's pri someone in the probate court office that her deceased hus mary attorney in Florida. Six months after hiring Love, the band's estate had been re-opened, and that Reese was the client learned that nothing had been filed for probate of her administratrix thereof. The widow contacted Reese about her mother's Alabama property. Love refunded the fee, but his reasons for taking this action. She also hired a lawyer to talk inaction caused a delay in the Florida probate proceedings. with Reese. Reese told the lawyer that the only reason the This case also involvedviola tions of Rules 1.3 and 1.4 regard estate had been sued was so the case against the insurance ing willful neglect and failure to communicate. IASBNos. 95· company could not be removed to federal court from Barbour 054 & 95-0731 County, Alabama.In December1992, Reese notified the plain • Birmingham attorney Margaret S. Alford was issued a liffs lawyer that there had been a prior estate, and that the public reprimand without general publication on March 8, widowhad been in contact with her. However, neither of them 1996 for having violated the Rules of ProfessionalConduct of took any hirther action. After the one-year period for removal the Alabama State Bar. Pursuant lo a disciplinary investiga ran, the plaintiffs moved to dismiss the estate. Within another tion, Alford was requested lo produce her trust accoun l month, the insurance company settled with the plaintiffs for records for the period of time covered in the complaint. Alford $750,000. Reese was paid Sl,000 for her ''administrator ad was able to produce a portion of these records but was unable Ii tem Cee"by U1ep laintiff. lASBNo. 94-0011 to comply with the requesl in its entirety. The disciplinary • Birmingham attorney Dorris M. Samsil, Jr. was adminis board determined that her conduct constituted a violation or tered a pubI i c reprimand without general publication by the Rule l.lS(a) which requires attorneys lo maintain complete Alabama Stale Bar on l'ebruary 9, 1996. records of their trust account funds for a period of six years Samsil was hired to represent an individual in a municipal after termination of the representation. (ASBNo. 91-6861 election dispute in Delaware. Suit was eventually filed on • On F'ebruary 9. 1996, Eufaula attorney Christie Gregory behalf of the client in the federal District Court of Delaware. Pappas received two separate public reprimands 1,•ilhoul gen After being unsuccessful in the Delaware federal court, an eral publication, pursuant to Rule 8(3)2.Alabama Rules of Dis appeal lo the United States Court of Appeals for the Third Cir ciplinary Procedure. cuit was filed. l'ollowing procedural machinations and proper In ASBNo. 94, 037, Pappasfiled a collections lawsuit against filing of the notice of appeal, the client was made to under a couple. The couple flied an answer in the lawsuit, stating stand that Samsil would draft the opening brief and prepare their understandi ng that they had made adequate arrange the appendix for appeal which were due on or about August S, ments witl1 Pappas' office to satisfy the debt in question by 1994. making monthly payments. Consent judgments against the A complaint Flied by the client againsl Samsil disclosed that couple were then entered. However,Pappas subsequently filed Samsil failed to prepare and file the brief as promised. There- a garnishment against lhe husband at his place of work. The 182 / MAY 1996 THEALABAMA LAWYER husband filed a motion contesting the garnishment, which was a prior garnishment in another matter again.stthe judg was scheduledfor a hearing before the trial court judge. All ment debtor. and that the judgment dtbtor's wageswe_re loo parties, as well as lheir counsel, including Pappas. were sub· low lo s.ilisfyboth the priorjudgm ent and Pappas' judgment. poenaedand/or ordered lo appear for the scheduled hearing Therca~cr.on behalr of the judgment debtor, Pappasnl cd a before the trial court. However.Pappas failed to attend the mollon lo dismissthe prior judgment's existinggarnishment hearing. Evidencereceived at the hearing establishedthat the with the claim or personal property exemption.Pappas wu couplehad fully satisfied the debt in questionprior to Pappas' successfulin the prior garnishmentseized. Pappasthen pro pursuinggarnishment of the husband'swages. ceededto havethe judgment debtor's wagesgarnished to sat· Pappasentered a plea of guilty to havingviolated the follow isfythe judgment which had beenrendered in Pappas' favor. ing provisionso r the AlabamaRul es of ProfessionalConduct: Pappaspied guilty to having violated the followingprovl· (I) Rule 3.l(a). for filing a suit merelyto harass anolher: (2) sions of the AlabamaRules of ProfessionalConduc t: (1} Rule Rule3.3(a) (3). for offeringevidence that he knew to be false, l.7(b), for representing a client wherein his representation and failing lo lake reasonableremedial measures; (3) Rule was materiallylimited by his own interest: (2) Rule l.S(a), for 3.4(c), for disobeyingan obligation under the rules of a tri· knowinglyacquiring a pecuniaryinterest adverseto a client; bunal; (4) Rule 4.l(a), for knowingl)'ma king a falsestatemenl (3) Rule3.1 (a), for nllng a suit merely to harass another; (4) of rnateria.1 fact or law to a third person; (5) Rule 8.4(c). for Rule 3.3(a) (3), offeringevidence t hat he knewto be false,and engaging in conduct involving dishonesty,fraud, deceit, or failing to take reasonableremedial measures: (5) Rule 3.4/c), misrepresentation:(6) Rule 8.4(d), for engaging in conduct for disobeyingan obligationunder the rules or tribunal; (6) prejudicial to the administration of justice; and (7) Rule Ruic 4.l(a), for knowinglymaking a falsestatement of materi 8.4(g). for engaging in conduct that adverselyreOects on a al fact or lawto a third person;(7) Rule8.4(c). for engagingin lawyer'sfitness lo practicelaw . conduct Involvingdishonesty, fraud, deccil, or misrepresenta In ASBNo. 94 -040, Pappashad sued a womanfor her breach lion: (8) Rule8.4(d). for engagingi n conductprejudicia l to the of a promissory nole due to Pappas. Meobtained a default administrationor justice;and (9) Rule8.4(g), for engaging in judgment againstthe womanand fileda gamishmentdirected conduct that adverselyrenects on his fitness to practice law. to the debtor's employer.The employeranswered that there IASBNos. 94.037 & 94-0401 • Health Major Medical. Provides personalized comprehensive coverage to Lawyers. employees. and eligiblefamily members. The Soulhem Professional Trust ls totally underwritten by ContinentalCasualty Company, a CNA Insurance Company. Life Family Term Ufa. Provides benefits for Lawyers, spouses, children and employees. Coverage through Nor1hwesternNational Ufe Insurance Company. Security Disability Income. Features "YourOwn Specialty" definttiono1 disability with renewal guarantee and benefits available up to 75% of your income for most insureds. Coverage through Commercial Ufe. a subsidiary of UNUM. Peace Of Mind Business Overhead Expense Insurance . A financialaid to keep your office running if you become disabled. Coverage through Commercial Life.a subsidiary of UNUM. 33 Lenox Pointe NE All from ISi Atlanta. GA 303 24·3172 404-814-0232 If you're a Lawyer practicing in the State of Alabama, Insurance 800-241 • 7753 Specialists, Inc. offers the finest Insurance coverage anywhere. We're here to help wtth all your insurance needs. ESt 19S9 FAX: 404-814-0782 INSURANCE SPECIALISTS, INC. THE AlABAMA LAWYER MAY1996 / 183 THEMOST COMPREHENSIVE LIBRARY OF STIITE lAW ONCOMPACT DISC - FROMTHE PUBllSHER YOU CAN TRUST Michie's™ Alabamalawon Disc™ YOURSINGLE SOURCE FOR A COMPREHENSIVE STll'ELAW LIBRARY ON CD: • Codeof Alabama (a,rnorared) • AlabamaRules A,morared • Alab11111aSupreme Court Decisiol15 since J 954 • AlabamaCourt of Appeals Decisio11S January 1965 roSepUimbl'I' 1969 • AlabamaCorm of CivilAppeals Decisio11S since 1969 • AlabamaCourt of Criminal J\ppeals Decisions since1969 PWS • Shepard'sAlabama Cirations (optional) If you'reserious about find ingthe bestelectronic legalresearch system for yourfirm, you'll want MICHIE'SALABAMA LAW ON DISC Here'swhy: Highestquality, most comprehensive law library on CD Fromthe publisherof Michie's'"Alabama Code'" Poweredby the industrystandard FOLIO'" search engine OptionalOnline Connection· to the LEXIS"service generates F~.~.·.~ electronicadvance sheets for a fixedmonthly fee -n,•dtt "",.., 1,lw'lutilUtJ ~ 11,.. Mint0..11l ull·fttr." 800/543-7618 Complimentarytraining, unlimited to ll-freesupport rl.Wl US( Cilll1MIM W lllll Q!IHIING Tryit freefor 30 days- guaranteedno obligation! 184 / MAY 1996 TliE ALABAMALAWYER RECENTDECISIONS By WILBURC. SILBERMAN complaint !or dischargeability. The with a motion for adequate protection. Bankruptcy debtor contendedthe debt was an excep The court discussed Section SOG(a) tio11to lhe exception in Bankruptcy Code which providest hat v,,lue is determined Section727{a)(8) as to student lo.1ns.The in light of the putpOSeor the valuation, The column for this issue contains UnitedSlates me! the burden of the sub and the dispositionor usein ronjunction scnwin/eresti11g dedsia11s of bankruptcy section b)Iproving that the debt was Jess with a hearing on use or disposition. IL judge:;i11 the Northem District of Alooa than sevenyears o ld before the bankrupt discussedt he three ways in which value ma. These For Small Law Fir1ns The most affordable online legal research service for smaJl law £inns, offering case law, statutes, law reviews, the LEXSEE../LEXSTAT ~features and more - Flexible Choices for your practice. LEXIS' MVPiii now LEX IS-NEXISADVANTAGE ForSmall Law Firms - withmore fcntures, more nexibility and more affordability forsolo practitioners n11cls mall lawfirms o n n budget.Cons ider the ADVANTAGE: • LOW,FLAT M ONI Hl,Y RATES... • COMPIU~HENSIVE. .. srure:ind spccin lt)' Jffordablt,prcdk1,1hle pridng, for as littk libr.1rb,M,1u1tes, 11dminisrrnri1•c m:ucrinb, .,sSI l Oper 11101111,-_ l.1wreviews .ind more. • UNLIMITEDACCESS ... ,carchii\ much • FLEXrBLEC HOICES... select,111)' ,ISyou wam and as often as you need - at comb11m1011of Fbt·R:m: libranc., w meet homeor m the office. 1hrindil'1tlunl infonnation nccth of c:vcry • THELEXSEE /LEXS TA'I Ft::ATURES... arcorncyin yourfirm. an easyand convenient way to retrieve • CUllllFNI ... casel:iw a lwaysup·to·dntc. individualcnm or smurc sccrionsfrom • ONLIN~ EXPERTISE.... 1l lowsyou ro anyju risclictlonsimply hy using Lh l! computewirh even die largestfi rms. dtntion. Giveyourself Lhe ADVANTAGE yo11 ,,eccl ro compete- andwin! LEXIS·NEXIS" Formore inform:irion, cnll ADVANTAGE 1-800-356-6548POHSMALL LAW FIHM S ALABAMA STATEBAR ·iUr·"'""I._. •u 11 ,l,-.,11'1)111fffh11""'' •til~\t.lllJ.in.1'.:"'lll"ll" Ni,,.~"~ ,,1110,~,,.._,,..,s,,u,.,,~,,~ n, f ...... ,.. "" 1\\~1~11 4,tur, ~"~' ,,~,. h ~ ... ,., -.dr "'"I ~,111 ~hi 411JJ,vltu,1lkf lll, llhl"!I\i•••tt"1 .. , ....~ 11rht'h.n -'lf"t lU,... ,. I t\l'- ~1\t\, t. x,t ,111,I LEXIS"·NEXIS" IIXIIAI ...... 1,.,1,,,,,h,,11t,,111,,..,r,,1,·1 ... 1 .... ,,• .i,.i...... ll•lj; l\>lt.\L\110\AkK.ll'l•w••n,1, ... 1.. 1Mt,.111 ••,1,,,.,, I •• J (-(. ...._ .... ,,.,~,i,.,,,c l~i,, U ~l\•SIXI\ a.ln..,,.1,llr..J 11.,.ln1., .Ill11,,!1111, m,J [ /\UII M 186 / MAY Hl96 Tl II~Al.AHAMA LAWVeR Rec ent Doclslone claim under §fi07(n).nnd (3) a claim oris• bul lhr1Lunder Ti,n/)t•rs, no interest can Co11t/11u11clfrom pa,Qf' 185 ing under §§362, 363, or 364. I le held be m1itl lo .in undc:rsccuredcreditor. lhal l"MCCcould not quall(yfor a ~upcr Comment: The court In st>veral betweenthe dnte of the petition and Lhe priorityndministrali\c claim as adequate inslnnct:Scited JudgeMahonc y's opinion daleof fllinitthe motion. prolucli()nhad not failed.I le added lhnt in /11re /(enncd,1/.177 B.R. 967 (Bnnkr. The court emphasizedlhat adequate whentirantcd prepctltlon In a Chapter 13, S,l), Alo.1995), ;1ml I he Elevc,,LhClrcu il proteclion can he provided only if lhc paymen L s musl be rct11incd by lhe case o( In re Dt•lta Nusources, 5d 1~.:1d requested and, lherero1·c, upon a 1.h:blor Lruslcc(i)ursuanl Lo§ l326(al(2)) unlil 722 ( I llh Cir. 1995).The opinion indi rilinJ{o ncllllon, the creditors should conOrmation. The uplnion mentioned cates much lhou"hl wns l(ivcn lo the promr,Uyr,ul'bue U1eir ri~h ts and not i.im· that procedurallyin Judge Slcd,tc':ico urt issues and ullinrnle conclusio ns. ply rely on Ihe plan of the deblor. This and in approximately 011c-Lhirdu( lhc Althou~hsome o( the conclusions may cru;ci nvolvedn l99ill •'ordI ruck on which other bankruptcy courls In lhc nal Ion, be con I roversiol, the reader will (ind there was 11balonce or$14,089.15. The connrmnllonis not ~card until ancr lhe many citations which togtthcr with this debtor scheduledS2,864.i15 as unsecured, claims bar J:itc which is approximately case will he of aid In i.imilarChnptcr 13 zero to be r,.iidunsecured creditors, but lour months rifler flllnlt, cases. for the Lru~tce lo distribute $255.59 Finallythe courl ruled upon priorityof rnonlhly to l~ord Motor Credi! Corp. adcc1unlcproleclion, a.~ l•' MCC contended (FMCC), PMCCnled a proofof claim for Lh:itits 11de<111aleprotection should have its balance, in which it set out a hi~hcr priority over admln11,trat ive expenses. WIibur Q. markelvalue Md higher contractinterest The court Orsi com1l'cnlcdthat there is Sllb•rm•n Wilbur0 . Sllbnrmnn,or tmd monthlypuymen ls. FMCCobjcch:d t o no accrual of payments post-connrmn• Ii ,n f!lrm,nuhnr11I/rm o r conftmmlio11conlcndinl{ lhal lhc int1irc.~l lion hecnu~cLhe conOrmaLlon order wlll Cloroa1 !1,1i,ormo,1. r.itc on it.~contrac t and the valueil plneed precludethis , since lhe rights arc provld· W,QQ•n.& Child• nl on the truck shouldcontrol. Judge Sledge ed for in the plan. lnS<>foras Lhcattnicd lnndrld S11111lordUmv.,r. r.1rvnnd lhOun1vo,e11y discu11scdsuper priority ndministralivc r,re-conflrmalion nmounls tire con of AJIIJjilmnn.nrt nnt,il)(J expenseuntler §507(b)citing the mamla cerncd,lhcse shou ld he paid concu1•1·1:nl• hln l~v.OOfl"~' 110,n lho Un1vnr;11y·1Sch0ol or lol')ILhrcc tier lesl o( (1) foilureof ade· ly with achnlnislrallvc expenses uml i( I.JiW ~ 0 coYota lhn quatl!prote ction. (2) havingan allowable iru;unlcicnl,cnch should be paid r,romlll, t,.1r,luW)ICYOOlllll.tDna Why6,000 Alabama State Bar Lawyersuse Young Lawyers'Section Chap7•• 13 * tlCNI' l'ypcSct look In ll11nkrupicy 1:0111\S, * f1:istc111,frlcndlh:~, ~o nwnrc Sandestin * The only !>Olrwarcwith huilHn /11td/(1w1111Mp * AUIOlll,lllC Pl:111l)1 ahing 5•1rn,10111 pl,lllb to s:11i~fy:ill dlslricl~ Seminar * Filing clwck-lir-ts, clicnl ((l1t,\~llo1111alrc * M:111ix-on-dhk w1:.luru. for .Ill courts th.II l,ikc them OEMODISK • REFERENCES MONEYBACK GUARAN TEE CALL800 BEST-7-13 &CHAP7**13 May 17-19, 1996 SpecialtySoftware 111l S.W oodward• R o olOak , Mich.48067 Tl IE ALABAMALi-\ WYER MA'1991i / 187 RobertJ eromeTeel, Sr. Duringhis practiceTeel acted for a and time unfortunatelyappear to be number of years as county solicitor, more and more in the minority.Teel oosaCounty Jost a distinguished served in the Alabamalegislature for will long be remembered in Coosa scholar. statesman and well two tenns and representeddefendants County by the citizens of the county Crespectedtria l lawyeron Novem in murder cases involvingover 30 tri of which he was a part. ber ll, 1995with the passingof Robert als. In 1958, Teel obtained acquittals Teel is su1vivedby his wife, Ruth J. Teel.Tee l had practicedl aw in Rock byjury verdictsfor four defendantsin Teel; sons Judge Robert J. Teel, Jr., ford for the past 45 years following four separate criminal trials, all of PrankS. Teeland CarltonL. Teel,who his graduation, cum /aude (number whichwere tried duringthe sameweek. practiced Jawwith him at the time of two in his class), from the University Notwithstandinghis ability in lhe his death, and George W. Teel. Our of Alabama Schoolof Lawin 1949. At courtroom, Teel will best be remem affectiongoes out to his family. the time of his graduationTeel joined bered for his qualityof alwayshaving practicewith his father.the late Henry time to advise clientsand youngattor -Jo hn K. Johnson A.Teel, in Rockford.where the Teels neys.He believed that a clienldeserved President, Coosa/Clay have practiced law continuously for help,1vhether or not they couldafford Bar Association the past SOyears. representation.Such attorneys this day Joseph Whitcomb Adams Curtis Mel.artyHold er Kathl)'n McDuff Rossback Birmingham Faye/le Tuscaloosa Admi//ed: 1945 Admitted: 1935 Admilled: I 936 Died:December 23 , 1995 Died:January 2, 1996 Died:January 22 . J996 \\'llliam A. Barnell William Charles Hughes Clarence M. Small Florence Bim1i11gham Monlgommy ,1dmilled: 1932 Admilled: I 936 At/milted:1932 Died:l'ebruary 7, 1996 Died:February 14, L996 Died:Pebruary 20. 1996 Jean Kitchell Bynum James Morgan Prestwood Ernest \V"~.kerson Weir Birmingham Andalusia Blm1ingham Admitted: l940 Admilled: 1937 Admitted: 1950 Died:December 12, 1995 Died:February 18, 1996 Died:Decembtr 28, 1995 Charles R~ Caddy BennyLloyd Ro berts William David Wilkes, Jr. MillbrOQk Cad,sdeJ1 Guntersville Admilled: 1982 Mmilled: 1969 Admilled: 1956 Died:March 12. 1996 Died:October 27. 1995 Died:February G, 1996 Please Help Us TheAlabama Lawyer "Memorials" section is designed to provide members of the bar with information about the death of their colleagues.The AlabamaState Bar and the Editorial Board have no way of knowing when one of our members is deceased unless we are notified. Please take the time to provide us with that information. If you wish to write something about the individual's life and professionalaccomplishments for publication in the magazine, please limit your comments to 250 words and send us a picture if possible. We reserve the right to edit all information submitted for the "Memorials" section. Please send notification information to the following address: MargaretL. Murphy, TheAlabama Lawyer, P.O. Box 4156, Montgomery,AL 36101 188 / MAY]996 THEALJ\BAJ\'IJ\ 1./\ WYER Whereas, Judge Zoghby has national Academyof Trial Judges: presidedover many difficult.h ighly a faculty member of the Alabama publicized and emotional cases Bar Institute of Continuing Legal and handled the same in an exem Education and a Spring Hill Col plary manner befitting and consis lege professor teaching courses in tent with his oath of office with "Business Law" and "Legal Envi dignity, wisdom and impartiality; ronment of Business"; and was a and membero of lher distinguishe d Whereas, Judge Zoghby was org;inizations. truly a "judge's judge" and pos lie was a devoted father and sessed all of the followilllleight car family man. leaving sunoivinghim dinal virtues lo consider in his wife, Mary Jo Zoghby; two evaluating an excellent judge: daughters, Michele Marie Zoghby and Stephanie Josephine Zoghby; l. The virtue of independence; Judge Michael E. two sons, George MichaelZoghby 2. The virtue of courtesy and and Christopher Michael Zoghby, Zoghby patience; all of Mobile;four sisters, F\'ances Zoghby,or Denver. Colorado;Mrs. 3. The virtue of dignity; 1ereas, Judge Michael E. LawrenceE . (Isabel) Ackelsof Dal Zoghby, a distinguished 4. The virtue of openminded l;is, Texas;Miri am T. Zoghby;and W:member of tllis associa ness: CeciliaT. Zoghby,both of Mobile; and two brothers, Kaleel A. Zogh tion and a retired judge of the Cir 5. The virtue of impartiality; cuit Courtof MobileCounty, passed by and Raymond J. Zoghby, both awayon September 7. 1995and the 6. The virtue of thoroughness of Mobile. associallon desires to remember and decisiveness: Now therefore, be it furt her resolvedby the association on this his name and recognize his contri 7. Thevirtue of social conscious 19th day of January 1996,that the butions lo our profession, to the ness;and bench and to this community; association moum.s the passing of Now, therefore . be il resolved 8. The virtue of an understand Judge Michael E. Zoghbyand does that Judge Zoghby,who was bom in ing heart; and hereby honor the memory of our friend and fellow member who Mobile and attended parochial ele Whereas, Judge Zoghby held exemplified throughout his long mentary and high schools In lhis membershipsin the AlabamaAsso career the highest professionaland city, gradunted from Spriog Ifill ciation o( CircuitJudge$; American judicial principles to which the College, cum laude. in 1954 and Judicature Society; American and membeTSof this associationaspire the Universityof AlabamaSchool Alabama and Mobile bar associa and request this resolution be of Law in 1957 when he entered tions; was a past pres,denl and a spread upon the minutes of th is the private practiceof law. He Lhen member of the advisory board of associat ion and of the Alabama entered the U.S.A ir Poree, Judge St. Mary'sHouse of Children;was a State Bar and that a copy be pre Advocate Ceneral's Department. recipient of the O' L.ury Award sented to his family. where he remained until Septem from Spring Hill College in recog ber 1960. He was awarded the Air nition of his distinguishedcareer as - WUliamA. Kimbrough, Jr. Force Commendation Medal for a jurist and untiring workfor the President, Mobile Outstanding Performance ns a improvement of the Mobile com Bar Association JudgeAdvocnle;and munity; was a Pellow in the Inter- Tl IE ALABAMALAWYER MAY 1996/ 189 DataSoft's ALABAMA LAW LIBRARY ON CD-ROM A SingleCompact Disc contains: DataSof t's search T OVER 40 YEARS OF CASESFROM e11giT1e is extr emely THE ALABAMASUPREME COURT powerful a11d easy to T COURT OF CIVIL APPEALS use. Even a novi ce T COURT OF CRIMINALAPPEALS can be up a11d run11ing in und er T THECOMPLETE ALABAMA CODE ANDRULES OF COURT fifteen mi1111tes. There is simply 11ot a Spendyour time practicing law, not searchingfor it. more acc urat e or effi cie11/ way to do Nowat a price everylawyer can afford: legal research. 499°0 [!J ' TO ORDER CALL 1-800-255-3803 190 I MAY 1996 THE ALABAMALA~VYEll CLASSIFIEDNOTICES RATES: Members: 2 lree listings of 50 words or less per bar member per calendar year EXCEPT for "position wanted" or "position offered" listings - $35 per insertion of 50 words or less, $.50 per additional word; Nonmember s: $35 per insertion of 50 words or less, $.50 per additiona l word . Classified copy and payment must be received according to the following publish ing schedule: May '96 issue - deadl ine March 15, 1996; July '96 issue - deadline May 15, 1996. No deadline extensions will be made. Send classified copy and payment, payable to The Alabama Lawyer, to: Alabama Lawyer Classifieds, c/o Margaret Murphy, P.O. Box 4156, Montgomery, Alabama 36101. Merrymont Drive . Augus ta, Georgia Access to State Law Libra,y, WEST · POSITIONS OFFERED 30907. Phone (706) 860-4267 . LAW avallable . P rompt deadline searches. Sarah Kathryn Farnell, 112 Moore Building, Montgomery, Alabama • PSYCHOLOGICAL EXPERT : Licensed • ATIORNEY JOBS; IndispensablemonUi• 36104. Phone (334) 2n -7937. No rep clinlcalpsychologist wllh extensMlexpe ly Job-hunting bulletin !Isling 500·600 (l)S(Jll/alionls made that the quallty of rience In al types cl c:11111..tamly and crim current Jobs(ledef8l/siate government . the legal S6tvlces to be petformed Is inal cases. Can provide psychological courts. Gapttol Hill. public Interest. CO<· greater than the quaflty of legal sllf· evaluations, treatment, expert report s. porations, associations, law firms, unl· vices petformed by orh1Jrlawy ers. versllies , lnle ma tlonal orga niza lfooa. and court testimony. Willing to travel. RFPs) lor attorneys at all levels ol expe Alan D. Blotcky, Ph.D., 700 28th Street. • INSURANCE EXPERT WITN ESS: Bad rienceIn Washington , D.C., nationwide South , Suite 200, Birmingl'lam, Alaba · Failh/Fraoo'lnsurance Coverage/Oalms and overseas. Order the NaliOnal and ma 35233. Phone(205) 324-0075. Ma11ers1Mal1ulllngIssues. Formerclalms Federal Legal Employment Report, attomoywith prior sales backg round avai~ 1010 Vermon t Avenue, NW, Sullo 408· • FORENSIC DOCUMENT EXA MINER: able to consult and testily In cases with AB. Washi nglon, O.C. 200 05. $39·3 Hand'Wriling. typewrillng, altered docu lile or health Insurance disputes. Expo· mon ths ; $69·6 mont hs. Phone (BOO) menas, me T l IE ALABAMA LAWYER MAY 1996 / 191 988·32 10. No representation is made ing experience . Trafllc accident lnveSti· Inc .• serving the legal communily for ma, me quollty of the legal services to gaUon training. Background Includes over 60 years. We buy. sell. appraise be performed Is greatOI than the quali· technical and communication skills. all lawbooks . Send want lists to: Fax ty of legal seMi::es performed by other adversarial experience . and legal (716) 883-5595 OI' phone 1-800-4WM· IBW)'&IS. process lamlliarrty . Contact John E. HEIN. Reinhardt , P.O. Box 6343 , Huntsv,11e. Alabama35824 . Phone (205) 837-6341 . • HANDWRITING EXPERT/FORENSIC DOCUMENT EXAMINER : ABFOE cer • LAWBOOKS : Sava 50 percent on lilled , past prosldent ol Soulheastem • DOCUMENT EXAMINER : Certified your lawbooks . Call Nallona l Law Association or Forensic Document Exam· Forensic Documenl Examiner. Chief doc· Resource. Amer ica's larges t lawboo k lners, American Academy ol Forensic ument examiner , Alabama Department dealer . Huge Inventories . Lowest Sciences fellow. Federal court qualified. of Forensic Sciences, relire Training Seminars Training workshops designed to qualify you to mediate business, family , & communi ty disputes. D Workshops Offered Thr oughout Alabama O CLE Approved D Customized In-House Programs Available O Call (800) ADR-FIRM for a Free Brochure 192/ MAY1 996 Tl IE AI..AIJAMALAWVER Quick!What's The Va[ue OfYour Client's Company? TIIE IRS (Oil ii OP.P/IRTINOPAl( 11'1ERO R SOON·TO-OE·EX·SPOUSI! OR THE llXECIIl'OROF TIit : ESTATll) WANTSAN ANSWERR IOHT AWAYANO WILL NOT LOOK KINDLYON A RESPONSEC01'fl'AIN INO 11i£ WORDS"APl'ROXIMATEL'f AND "ROUOIIL'f. <='/JOUI I AVETWO CHOICF.S. BEST: CALI, WtLLJAMS,TAYLOR & ACTON, 1116 FIRSTAOCOUNTlNG AND CONSUL TINO FIRM L'-1BtRMINOltAM TO IIAW.FOUR CER" nFTED VAl,UA'nON /IN/IU'STS ON PERM/INENfSTAFF, AND R/IN~INO IN TIIE 1'0P f:10111'PERCf:NT OF AOCOUITTINOO ROAN17..ATIONSNATIONW JDE IN QUAI,m' OF CI.IEl-(1'REPORTS. • 2ND·BEST: P ANIC. Go WITII THE BEST. C\1,1, 930-9111 TODAYABOUT A FREE BUSINESS VALUATIONCONSULTATION. )AMUl. WIU.MMf,CPA. CVA bi< F.T,n.o1.CJ'A.CVA T1sunwW , Yoo,.C PA.CVA & ••••w .. •"'"""'•"'• WilLIAMS·'ll'AYlLOR ·AC'll'ON ACCOUNT,\NTSft C01'S1rJ.TANTS ?140 ELEVENTH A VENUE. SOvnt • THE PARK llVILOINO, SUllc .IOO• BlRMI NOHAM , ALABAMA l~ (205) 930-9111• (800) S74-3SS2• FACSIMILE (20S) 930-9177 Themost complete CD-ROMlibrary in Alabama . .. IBIMA IIEPOlrTElr AND WIST'S A&ABAMACODE"' ON CD-ROM GIYU YOU " Reporteddecisio ns l'rom1 9+$ 10 elute " SlipopiniorL ~ " AlabamaAuomey General Opin ions from 19n 10 d:ue " Weeki)' a