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ALABAMALA WYl!R S SERVINGALABAMA LA WYERS "Continuing education for lawyersin Alabamai s no longer simply a requirementto practice, but has maturedinto a fundamental aspectof our profcssioMIlives. Not only are we pem1itted to be informed by experts among our peers,but weare able to enjoythe camaraderieof interactingwith our fellows.AB I CLE is at the forefront of this movementbecause i t 1>ffcr, good quality seminarson a wide varietyof subjects."
J.Ro nald Boyd Boyd& Ferna Bim1ing·_. , ... Vol. 58,No . 7 November 1997
On the Cover Earlymorning sunlight on lee CountyCourthouse, Opelika, Alabama. Lee Countywas createdfr om portionso f Russell,M acon, Chambersand Tallapoosa countiesby act of the AlabamaLegislat ure in 1866.The county's first election was heldJanuary 21, 1867.Co nstructionof the courthousebegan in 1896.The courthousewas placedon the National Register of Historic Placesi n 1973. -Photo by Paul Crawford, JD, CLU
IN THIS ISSUE
THE FACESOF PR O BONO B y Susan Cullen Anderson ...... 342
WHY WASY OURP ETITIONl'OR A WRIT OF CERTIORARI DENIED? THE I.MPORTANCEor PR OCEDURALCOMP LIANCE WITHR ULE 39, ALA .R.APP.P. By Michael Skotnicki ...... 348
DISCOVERYIN CRIMINALC ASES: 0BTAIN1NGEVI DENCEAND INF ORMATION NECESSARYFOR AN EFFECTIVE DEFENSE By LaJuanaS. Davis ...... 352
WHERETO TuRN IN A POST-PUNITIVEDAMA GESW ORLD: THE "QUI TAM"PR OVISIONSOF THE F ALSEC LAIMSACT By Pamela M. Bucy ...... 356
CODEOP ALABAMA 1975 By Jerry L. Bassett ...... 371
(CunJ;nud onpo!J(f :J20) ALABAMASTATE BAR ON LINE www .alabar .org Wh ~t'$ N c,v. . . • Public.ario ns • Q n ..Line Co 1nmuni t)' • OGC O pini ons • CLE Ca lendar • O n-Line C h ange of Addr ess Publislledseven times a year (the June issue is a bar directory edition) by the Alabama State Bar, (COnlin~>d{((»t1 ~ 31.9/ P.O. Box 4156, Montgomery. Alabama 36101-4156. Phone (334) 269· 1515. Robort A, Hu1taKer···· ···- ·· ...... _ ...... Chair & Ecfi10f SUsan $h1tod< OePaola...... VIC& •Chair & Assocla1e Edilor DEPARTMENTS David B. Champlin...... - ...... , .. _... , ...... _ ...... _, __ ,., ...... Vk:e-Ch.air. Ftoanoe Susan H, Andres ...... - ...... _ ...... Statf Liaison& CommunicationsDirecior Margaret L M urphy ...... ___ ,_,..,, ...... _ ...._ ...... - ...... Staff Liaison & Managing Erfrlor Board of Edl1ors UndaG. Fl\:lpo.B1rmh1ghat11 • La.Juana S. Davis,Monlgome
10thCircuit, PlaceNo . 91 Card H. S1ewan. Birmingham, BessemerCu1-ol1, George Hlgg!nbo!ham1 Sessemer. 11th Building Alabama's Courthouses ClrcwL Roberi L. Gonce, Aocence. 12th Ckcuil. Joseph E. Faulk. Troy. 13th Circuit, Place No. 1, Wosley Pfpes. Mobile. t 3th Circun. Place No 2, 8111)'C. Bodsole. Mobile. 131hcircuit, Place No.3, Caino O'Roat, Ill, Mobil&. 13th 330 Circuit. Place No. 4. Benjam&nT. Aowo , MObUI). 14th Circuit. Philip P. Nelson. JaS()(lf. 1511'1Circuit. Place No. t, Robert 0. Segall. Mon1gomory. 15thCira.it, Place No. 2, W&ncl80. Oevol'Qaux.MontgOmery . 151hCircull, Place No. 3. Jam0$ E. Wiliams. Montgomery.15th Circuit.Place No. 4, Richard S. G3JTetL.Momgome,y . 15th CirC1.1il, Place No. 5. DavidR . Boyd , Montgomery. 16th Clrcvh, George P.Ford. Gadsden. 17thCircru.t, Taylor T. Perry.Jr ., Legislative Wrap.Up Oofflopo's. 18th CircuH, Conrad M. Fowler. Jr.. ColumblaM. t9ChCircwL Jolvl Hollis Jackson. Jr., Cianton. 201h 335 Circuil. Wade 1-1. Bax1ey.Oolhan. 21st Cifcult,CnatlllS A . Godwiri.Almo,e . 22nd Ccrcuit, Ear1v . Johnson, Andalusia. 23rd Ci(cult, Place No. 1, Donna S. Pale, Huntsville. 23rd Circuit, PloceNo. 2, Pa1rick H. GtaYeS.Jr . • Huntsville.24th Clrcuil. ()ooa)d W. Lambeft, Vernon.25th Cirtuil. oravetFrederick WOOd , Hamillon. 26th C.cuil, BowenH . Blassell. Phenix City.27th Cirml . John C. Guttah0tn.Nberiv!He. 28th Citcutt, E.E. Bal, Bay Mlnetle. Memorials 29thCircuit, A. Blake Lazont,v. Talladega. 3()thClrcull . J . Roboo Bentley, Oneoma.31st CJroul1.Wolliam K Howl&IJ, 337 iuSQJmbia.32nd Clrcui1. Bily \'I . Jackson, Cullman. 33rd Citoil. Rober1H . B ALABAMASTATE BAR ll &AOQUARTERS STAPP Opinions of the GeneralCounsel 415 lleJ ALABAMASTATE BAR CEN1'F,R FOR PROFESSIONAL RESPONSIBILln' STAl't' ClassifiedNotices 4 15 DexterA,•enue , Montg<,mery, Al. 36104 (334) 269-1515• F1\.X(334) 261 -6311 Cel'lb':11Cwru.el-- .....,_,,,,.,_ .. , .,.. -- ..-J. AnthonyMct., in CBen1St:curily P-wut. CS.F & 378 As.sisbnt Cmm l Counkl.... ,-- ,-·.. ,- ..L Citbtrt Kvidtldc Cl,&Cool'dl~ tor ...... - ...... ilonnit M:unor AssistantGmtQI Counsel_ ..... - .....,- ....- .....Miltoo L Moss I P.iraltg.11,1/lm~iglllON ..... ,__ ,,.,__ ,_,,.,.. ._._ peggyGarrtU As.sistantCmt,.11 Couiuel _.. ., ...... -- .RobcrtE. Lusk.Jr. Ch<,ylRanki n S«:rtta,y to Ccn~rn.JCounse.l...... ~·--- ·VM:inf.'reClTliln ~uthorued Pr.Ktict d Ulw -·--·- ..· -- ·--- ..ll obin Key Complaints ln~llt &.Advc.rti:slng CoonU,iitor ...... Kim F.Jlb ll«c ptionlsL.. .- ..,-,- ...... - .....____ ·-·- Mt-lCS$18utgffl n,,, A.fao.tm.11.4-,..r:jl$$N 0002- 4287 ), U. oltioal ~ Cl( il'HIAkl!xlrna Stall Bar,. ~ ~ ri,._ • \'NJ II\ IIW tnon!lts ot JJl"'IIIY· Maid'!, Mly • ..kll'lt (bat W"lJ!WIT •)'l =tr'\Hal·I PtikM TheAlabama l..owve, Thetrusted source for Alabama statutoryresearch - .... awyersand judgesin Alabamahave been relyingon Michie'scode servicefor more Lthan 50years. Today, M ichie's'" Alabama Coderemains the smart choice in Alabama statutoryresearch. Featuring authoritative statutorytext, Michie's~ AlabamaC ode lncorpo· rates changesto the state'scode as approvedby the AlabamaLegislative Reference Bureau . Its comprehensive General Indexco ntains many moredesclip tive main headingsan d cross referencesthan any otherAlabama code index . And of courseMichie 's updateservice continues to set the standardfor speedand comprehen siveness- the 1997Cumulative Supplement containingall 1997legislation is alreadyavailable! At only $295·for the entire set; Michie's Alabama Codedelivers unparalleled value. It includes- • 34volumes plus current cumulativesupplement • Comp(ehensiveGeneral I ndex,replaced annually • Fullyannota ted cumulative supplements publishedan nually • Annotationsbase d on: • All AlabamaCases and FederalCases arisingin Alabamasince Statehood • State Law Reviews • ALR • Advance CodeSe rvice publishedthree times a year,providing annotations to the most current case law • All case citations Shepardize~ for accuracy LEXIS LAW PUBLISHIN G $295"1 34volumes, hardbound, ite m #40002 ~€::::-MICHIE /Jy Dag Rowe The followi119remark s were gioen at the October3 0, 1997 admissions ceremony in ftlontgomerybg Alabama State Bar President Dag Rowe. am delighted to bring greetings tions: The first is a basic commitment I from the almost 12.000 members of to integrityand ethics. In simple terms the AlabamaState Bar. Mydelight in this means telling the lruth, doing what being here is tinged with nol a liltle you say you're going to do when you say poignancyand sentimentality because you're going to do it. and complete and 25 ye;irsago I sat where you now sit unwavering honesty in dealing with the (give or take a city block or two). I can't money and property of others. help but note and welcome the beaming In your professionall ife when you are faces of so many parents, who have sac confronted with an ethical issue. I rificed much. both financiallyand emo encourage you to developfrom the start tionally, to get you here today. the habit of reflection. Slop and think: I remember well the mixed feelings Is it right? Is it fair? you have today-de Ii ghl in having com ILmay be ''hokey"and it may be old pleted law school-relief in having fashioned, but I'll wager you that lhe passed the bar exam-c oncern about number of disciplinarycases handled by how you'll pay your student loans (the the AlabamaState Bar would diminish average law school grad last year owed to a trickle if each of us would simply $35,000 in student loans)-a pprehen stop and ask before acting: Is what I'm sion about your practical legal skills contemplating doing something I would President fear as to your career opportunities be comfortablewith my mother seeing given the apparent glut of lawyers-and or knowing? Can it stand the Ii !!hl of pride in today becoming a lawyer. day? Would I want it done to me? Rowe's The pride you feel in Joining our hon The second aspiration that I'd urge orable profession is Justified. Jim North. you to adopt is independence.T his one of my predecessorsat the state bar, includes the ability to say "no'' lo a Challengeto used lo say that in the small Alabama client. Lawyersare often too anx.ious to town where he was reared. there was a pleasea '\vin-at-all-cost" client. We're saying about someone who entered the too afraid to lose a client. Elihu Rool NewLawyers legal profession that she or he "made a once said. "AbouthaJr the practice or a lawyer."That was an honor accorded to decent lawyerconsists of telling would only one other profession.medicine. IL be clients that they are damned foolsand simply reflected a tacit recognition of should stop." You know, true profession the fact that it took something special als lead their clients: toadies get in trou lo make a lawyer. ble and embarrass their colleaguesby What I'd like to talk to you about today shufflingalong following '"hat are often are those professional goals and ideals base machinationsof regrettableclients. which undergird Lhestrength and value Independence also involves escaping of the legalprofess ion. Becominga the trap of deficit personal spending. A lawyeris more than just arming yourself friend of mine is fond of saying, "Ir you with a technical understandingof proce really want to see lime Oyget a 90-day dural and substantive laws; it's also note." AsJohn Capozzirecently wrote. about the formulation of a personalcode ''too many (lawyers!are spending of professionalvalues. GeorgiaChief money they don't have, to buy things Justice Robert Benham recentlysaid that they don't need, to impress people they professionalism for lawyersis not aboul don't even like." Dag Rowe learning rules; it's about aspirations. Lndependencealso involvesescaping I would ask you to consider including lhe trap or alcoholor other substance in your professionalarmo r and in your abuse. This is truly an occupationalhaz. unique persona the followingaspira - ard for lawyersthat can't be overstated. Mftj'!oi'iiriiH+ee;+ Th,utlobamq J .a~J:,. Statistics showthat as much as 50 percent of disciplinary hours are dedicated to either their income or their entertain charges against lawyersste m in part from alcohol or other sub ment. Too often the community activities which are undertak stanceabuse. en are chosen to maximize visibility and social prestige, while Independencealso involves the realizationof how easyit is for minimizing real commitment and hands-on service. Like the lawyersto becomepri soners of the efficientand productive use kamikaze pilot who Rew18 missions, we are involved but not of their time. Youalready know, and l need not remind you. that committed. I urge you to make commitments, whether it's a successi n the legalp rofessionreQ Ltires hard ,vork and long civic club, your church, the United Way,L ittle League, the hours. In this regard, I'm reminded of an experience or Bill Paul community chorus, or the Alabama legislature. when he was president of the Oklahoma Bar.Bi ll was asked by a Unless you take those same talents that you will use in your senior at the Universityof Oklahoma LawSchool if there was legal career and employ them to make life better for others, then ·'lifeafter law school."B ill said the answer is one of those good you're not only denyingyourse lf a lot or pure joy,you' re not newSlbad news things. The good news is the answer is ''yes." The pulling your weight. You're a taker and not a giver. lt's one thing bad news is that "life'' starts ten years afteryo u graduate. to bea good lawyer, but it lakes more to be a good citizen. Whenti me becomes more than just a commodityor unit of These are the aspirations, commitments, and goals that I merchandise,bu t increasingly the coin of our professional would ask you to embrace as you start on your legal career: realm, then it is extremely important that we use our discre Integrity tionaryt ime wisely-,vith our families, with our hobbies, and Independence with the causes that inspire us and, indeed,defi ne us. Your Civilil)• daughter will soon forget whether you won a particular case, but and she may remember all her lifet hat you missedh er dance recital. Service The third value or professional attribute I would like you to consider is a commitment to civility, which has sufferedin Best wishes and Godspeed! • recent years. Some have said that the Joss of civility by lawyers is simply an inescapable reflectionof a general decline of civil ity in society. While there is undeniably less civility in society, that is no excuse in our profession in which the tradition of courtesya nd gentility were founding, bedrockprinciples . As RichardWilson & Associates you start your career, realize that zealous advocacyan d suc Registered Professional cess do not require Rambo-tactics that are characterized by intimidation. hostility, and the rough-shod abuse of the sensi Court Reporters bilities of opposing counsel or parties. 804 S. Perry Street The breakdown of civility is just one aspect of the broader Mont gomery, Alab ama 36 104 deterioration of professionalism. Professionalism is more than ethics, which is a minimum standard required of all lawyers. As Justice Harold Clarkeof the Georgia Supreme Court said, 264-6433 professionalism "is a higher standard expectedof all lawyers ...T his is the kind of standard which leads to a satis(ac tion for a job well done and a life well spent." Civility, though, is more than courtesy and courtliness to other lawyers. In this month's ABAJ ournal, President Jerry Shestack said, "(l]t is an approach that seeks to diminish ran cor, to reconcile, and to be open to nonlitigious resolution.'' In short, it's the ability and willingness to convert contention into Notice consensus,to be a problemsolve r, and not just a mercenary \varrior. The AlabamaS upreme CourtCommiss ion on Dispute Each of us is troubled by the public perceptionof the legal Resolution, established in 1994 by the Supreme Court of profession.T he proper response to that concern leads us to Alabamato promote mediation and other alternative U1e last aspirational commitment I would ask you to make, waysto settle disputes in the state court system. commu which is "Service." Albert Einstein said, "The value or a person nities. administrative agenciesa nd schools willbe awar d should be seen in what that person givesa nd not in what he ing mini-grantsfo r ADRprogra ms. !or she] is able to receive." Grants applications must be received by the You are today receivinga great empowerment. It 's yours to Commission by October l of each year. Currently, the use as you deem fit. You can use it only for yourself or you can use it for others. As my old law professor, Martin Lipton, Commission is accepting applications until October l, said at a recent N.Y.U. graduation, "It's a watchwordof the l 998 for the grant cycle 1998-99. legal profession that if you do good I'm sure you'll do well, For grant eligibility criteria and grant applications, and if you do well, it's your obligation to do good:' please call the AlabamaCenter for Dispute Resolution T oo many of our professional colleagues, however, are at (334) 269-0409. putting very little bread back on the water, their thoughts and TheAl abania l.atC!J'>f FU·J'ffjjl!f · Sf ,ffPffH EXE CUTIVE DIRECTOR'S REP ORT 8g Keith 8. Norman here are 40 bar commitlees and • \\'Orkt owardcompleting the galleryof T t.1$kforces that are currently c.any pa.stpresidents' plaques in the board ing out a number of worthy and impOr· room of the stile bar headquarters:and tanl projects. There may be those who • consider appropriated isplays concern doubt the utility and the success of ing the history and archivesof lhe these committees and task forces. ror state ba.r at state bar headquarters. them, I need only call lo their attention A:sal 19-year-old institution. our bar's past works as an illustration of the good history is relevantto the da-eloprnentof that has been accomplished. The lawyer the legal professionin Alabamaas well as referral service,th e volunteer lawyers lhe administration of justice in this program. the law office management slate. Likewise,the history of the stnte program and the dispute resolution bar is significantlo nationaldeveloJ> center are but a few of the many pro· ments includingthe first codeof ethics grams benefiting the public and our for the leg.ilprofession and the bar unifi. Committees profCS$ion.Each of these programs cation movementIn this country. began as ideas al the committee level. I call to your attention one new com TuskPoree 011 f,awyer Dis cipline andTask mittee nnd two new task forces.They This task forceis headedb)• Phil Adams are the Committee on History and of Opelika.B iU Scruggsor FL Pa)'Ot will Att.hi,-es, the Task Force on La1,,),er sen-eas vice- Alabama Bar Institute fo r Continuing Legal Education The University of Alabama School of Law • Alabama State Bar • ALABAMA RULES OF EVIDENCE APPLIED: A DAY WITH CHARLES GAMBLE More than 90 fact situations to analyze. You will recei ve the hypotheticals, answers and an extensive appendix along with the 1997 Pocket part Supplement to: Gamble 's Alabama Rules of Evidence. ALL NEW FORMAT December 3, 1997, Huntsville, Alabama Space will be LIMITED so register NOWI December 4, 1997, Birmingham , Alabama December 11, 1997, Mobile , Alabama Phone: 800-627 -6514, 205-348-6230 December 12, 1997, Montgomery , Alabama Internet : www .abicle.org 6 MCLE Credit Hours The ,llabcmwlowg.:r Hti·f'ijl.j,fi;!§f fffffM ABOUT MEMBERS, AMONG FIRMS About Members Street, Montgomery,36104. His new Helmsing,Jr., Kathryn \II. Petersen Laurie M. Brock, formerlyan mailing address is P.O.Box 911 , 36101- and Bradley S. Copenhaverare associ Assistant AttorneyGeneral for the 0911. Phone (334) 263-3552. ates. Officesare located al Riverview Departmentof Human Resources, VelmaD. Carr announces the reloca Plaza,Suite 500. 63 S. Royal, Mobile, announces the opening of her office at tion of her officeto 2121 S" Avenue, 36602.T he mailing address is P.O.Box Wildwood Place, Suite l 03-D.4055 North, Suite 1623,Birmingham, 35203. 350. 36601. Phone (334)432-5300. Cottage Hill Road. Mobile. 36609. Phone (205)322-7217. The law Officesof Beth Stiller Phone (334) 661-3595. J. Stephen Salter announcesa change announcesthat LoriA. David, formerl aw N. P. Callahan, Jr. announces the of addresst o 100Age Merald Building. clerk to the Honornble U.W.C lemonof relocationof his officelo 813 Shades 2107 5" Avenue, North, Birmingham, the U.S. DistrictCourt for the Northern Creek Parkway.Su ite 208, Birmingham, 35203. Phone (205)252-9751. Districtof Alabama,has becomean asso 35209. Phone (205)871-1500. ciate.O ffices are locatedat 225S. Decatur ByronTodd Ford announcesa change Street, P.O.Box 1071. Montgomery, Robert S. Thomas announces a of his mailingaddress to P.O.Box 407. 36101.Phone (800 ) 843-5542. change of address lo 402 Briarwood Eutaw.35462. P hone (205)372 -9635. Road,Scottsboro. 35768. Phone Battaglialaw Officeannou nces that (205) 574-3210. Lee~t Russell, Jr. has becomean associ Joseph G. Stewart, Jr. announces a ate. Officesare locatedat 5950Carmichae l change of address to 200 S. Lawrence Among Firms Place.Suite 102,Montgomery, 36117. Todd Russell announces his depar Phone(334) 244-2983. ture as executivedirector of Lhe Sasser & Weathers announces the Alabama House Republican Caucusand relocationof its officesto 10086 " that he is the newly-appointed execu Avenue,SE, Decatur, 35601.The mail tive assistant to U1eCommissioner of ing address is P.O. Box3043 , 35602- insurance for the State of Alabama. 3043. Phone (205)351-1184. His new mailingaddress is P.O. Box Feld, H)•de, Lyle & Wertheimer 303351,Montgo mery, 36130-3551. announces that WilliamJ. Bryant has Phone (334)269 -3550. joined the firm as a shareholder.The Jo AllisonTaylor, former ly in private new firm name is Feld, Hyde, Lyle, Wertheimer& Bryant. Officesare s! DEBTORMANAGEMENT ""~ practiceat NewSouth l'ederalBuilding in ~ .... ::, Birmingham,announces that she has locatedat 2000 SoulhBridge Parkway, -u SDFlWAREUNIOUELY ~ acce1>ted the positionof attomey/director Suite 500, Bim1ingham, 35209. ~ "'< cc: DESIGNEDFOR of LegalCo unsel for the Elderly, ~ ..... Daniel E. Boone announces that ~"' c.. Universityof Alabama, P.O.Box 870392 , Q COLLECTIONSATTORNEYS. s: Scott C. Shimer has joined lhe firm as a: Tuscaloosa,35487. Phone (205) 34S4960. an associate. Officesare locatedat 300 Q- PRICESSTART ATJUST $1700. • J> Joel P. Williamsannounces a change W.Tennessee Street, l'lorence, 35630. s: c:: ..... of address to the Office of Phone (205)760 -1002. • Q >- s CongressmanTeny Everett, JOOW . a: :,, Anderson& Carr announces that ...... TroyStree t, Suite 101. Dothan.36303. Jerry M. Twiggs, formerly generalman c-, ~ Phone (334)794-9680. ager of DixieE:lectric , has joined the "' ~ ~ ...."' ~ Jeny A. McDoweU, Michael D. firm as an associate.Offices are located ~ FRIEDEMONSTRATION VIDEO c-, Knight, WilliamC . Roedder, Jr., at lhe Sterling Centre,Suite 304. 4121 c::, J> ~ ~ 1.800.827.1457 c-, Edward S. Sledge, Ill , Forrest C. Carmichael Road, Montgomery,36 106. :a;; c:: JS TECHNOLOGIES.INC. ~ Wilson, Ul, P. Russel Myles, Brian P. Phone (334) 272-9880. .... J> 1516WIUO WLAWN DRIVE ..... McCarthy, WalterT. Gilmer,Jr. , and Thomas O. Kotouc, P.C.announces ~ RICHMOND.VA 23230 c::, 2 Archibald T. Reeves, IV,former mem that Nick Y. Shimoda has joined the Q www.istec.com "' bers oi HandArendall L.L.C.,announce firm as of counsel.Offices are located "THESIMPLE SOLUIION" the formation of ~1cDowell, Knight, at 4142 Carmichael Road, Montgomery, Roedder& Sledge L.L.C. Frederick G. 36106-2802.Phone (334) 409-0088. McDaniel, Hall & Conerlyannounces Beers, Anderson,J ackson & Smith Goldberg& Simpson announces that that the firm name has changed to announces a name change to Beers, Stephanie L. Morganhas become an Hall, Conerly, Mudd & Bolvlg. Offices Anderson, Jackson, Hughes & Patty and associate. Offices are located at 101 S. 5'' are located at 1400 Pinancial Center, that WinstonW . Edwards,Constance T. Street, Suite 3000, Louisville, Kentucky 505 N. 20" Street. Birmingham. 35203- Buckalewand Judy B. Van Heest have 40202-3118. 2626. Phone (205) 251-8143. becomeassoc iates. Officesare locatedin Sasser & Littleton announces that Gregory D. Crosslin, Clifton E. Montgomeryan d Birmingham. Rebecca Wright Pritchett and Tamara Slaten and Michael B. O'Conner, Herring, Dick,Wisner , Adams & A. Stidham have become shareholders. former shareholders of Sasser & Walkerannounces t hat Eric R Adams Officesare located at Colonial Pinancial Littleton, announce the formation of has joined the firm. Officesare locatedat Center, One Commerce Street, Suite Crosslin, Slaten & O'Connor, and that 100 WashingtonStree t, Suite 200, 700, P.O. Box 388, Montgomery,36101- James D. McLaughlina nd James Huntsville.35801. Phone (205)533 -1445. 0388. Phone (334) 834-7800. William Leagueare associates. Offices Jason P. McCartbaan d C. Franklin Ben L. Zarnur and David Schwartz are located al 207 MontgomeryStreet , Snowden, Ill announce the formation announce the formation of Zar,aur & Suite 900, Montgomery, 36104. Phone of McCartha & Snowden. Officesare Schwartz, and that Thomas W. St. (334) 262-8S82. localed at I W.J eff DavisAvenue, John has become an associate. The Blum, Gersen & Woodannounces Montgomery, 36104. Phone (334) 269- mailing address is P.O. Box I 1366, that DavidR. Baker, formerly a partner 9908 and (334) 265-3000. Birmingham, 35202-1366. of Afridi & Angell, has become a partner. Scott M. Robertsand ~lichaelL Fish Friedman & Pennington annotmce The firm name has been changed to announce the formation of Roberts & lhal Heather O. Carnes has become Gersen, Baker & WoodLLP . Officesare Fish. Officesare locateda t 3125 Indepen an associate. Officesare located at locatedat 270 MadisonAven ue, New dence Drive, Suite 301, Birmingham, 2000-ASou thBridge Parkway,Su ite York. NewYo rk 10016-0601.and Boca 35209. Phone (205)870 -8611. 210, Birmingham, 35209. Phone Raton, Florida.Phone (212) 683-6383. (205) 879-3033. • Luther Strange and Jack Selden announce the formation of Strange & Selden. Officesare located al 210 I HighlandAvenue, Su ite 420, Birmingham. 35205. Phone (205) 939-0450. Gregory S. Cusimano, Larry H. Keener, ~lich.ael L. Roberts and David BL U MBERG EXCELSIOR'S A. Kimberleyannou nce the formation of Cusimano, Keener, Roberts & Kimberley. Officesare located at 153 S. 9" Street, Gadsden,35901 . Phone (205) ~~y~U?/~~~ 543-0400. 5 Albrittons, Clifton & Alverson 275 announces that BenjaminM. Bowden has joined the firm as an associate. Ideal for Laser Printers Officesare. located al 109 Opp Avenue, Andalusia. 36420. Phone (334) 222-3177. Includes: 1,000 Lette rheads and Envelopes 500 Business Car ds, 500 Plain Second Sheets O. Robert Stankoski, Jr. and J. Clark Stankoski announce the opening of Also includes dies and a proof Stankoski & Stankoski. Officesare 24 lb., 25% Collon, LaserFinish , Whjte or Bamboo, locatedat 314 Magnolia Avenue,Su ite C, RecycledBond S275 J>airhope.36533 . TI1ema iling address is 24 lb., 50% Couon LawBond , While, Bamboo P.O.Box 521. Phone (334)928-3776 . and Laser While S285 White, Dunn & Bookeranno unces a Crane's and Gilbertpaper at additional cost change of address to 290 N. 21• Street, MasseyBuildi ng. Suite 600, E11gravi11gplants i11Albany , NY a111fOrla11clo , Fl Birmingham, 35203. Call for samples a11clleg al s11pplycatalog, (800) 221-2972, ext. 503. Floyd Minor and John Olszewski announce the formation of Minor & Olszewski. Officesare localed at 458 S. Blumberg'9 TheAlabama lou'Jl(!r H:l·J'fjfo,jff fjfffffH BAR BRI EFS • Chal'les R. Johanson, DI, a member or the Birmingham lirm or Engel, Hairston & Johanson. P.C.. was elected presi dent of the CommercialLaw Leagut of Americaat its annual meeting in July. For the last 104 years tht CommercialLaw Leaguehas been the national professionalorgani1.atlon in the creditors· right.sfield. Its approximntely5,000 members include represent.olives of everygroup interested in commer cial law. In addition to holding numerous officesin the CLL, Johanson is a member of the ExecutiveCommitttt of the • The Mobilefirm of Johnstone. Adams, Binningham 8aI Associationand a charter member of the Bailey, Cordon & Harris celebratedits Bankruptcyand Commercial LawSection of both the Alabama centennial anniversarythis year. Tom Slllte Bar and the llirmlngham Bar Associnlion.He is a former Stevens foundedthe firm in 1897.It s presidentof the MunicipalJudges Associationof Alabama.nnd membus have Included many tlishn servtd for sever.iiyears as an adjunct professorat the guished lawyers,including a past president CumberlandLai~ School. teaching Bankruptcyand the of the AlaballlilSlate Bar,president of the UniformCommercial Code. AlabamaLaw Foundation and a Fellowof Chris Ste,.,,Ch rist, also of Bim,ingham.was recenllyadmit- 1'1,oma.,M.Ste""' the AmericanBar Foundation. ted to membershipin Lhe Commerciall..aw League. • THEVERDICI' "Few localbar groups hnve ISIN! the goodfortune lo count amongtheir number a 11\ilO It's Video Visions for All You of the caliberof George F. Wooten." After60 years of Lega l Video Toping Nee ds. serviceas a lawyerand as ri ~ F. ll'oolm circuit judge in Talladega. AT VIDEO VISIONS WE PU AO GUILTY TO: Ctorge Wootenand his wife. • ui1ogs,... ,, ...... ,11o1.-..Vldooood.A.&E Jane, movedto Charlottesville, Virginialo lr.oecloser to v-icSeob Ot,111' h:I IM,.._Miil a hobib1, their son and hosfamily. • Video V'~s Offers th• FollowingVldto S.,'tien.: DeanAlbert Farrah was dean of the Universityof • O.po,Me.u (1,1 .&Jce- oJ) • Cewtr-m vat P'9y•ot 9' Alabama School of l..awwhen GeorgeWooten was a stu •td l&f • J.O ANM• tioa • DeyIn th4ou,. PJMlvct.... .,..,..... ~ dent there. He servedas judge of the Seventh Judicial ...... ,., MfU Circuit from 1943 to 1946;was electedvice-president of • "-loo,ong-S.,,.C.,ooaflalho .... No~lo,l..,...,..._ the AlabamaState Bar in 1973:and servtd as a member Sicoool Alabo,na No Coolv,logHao,!y ·- R.... aod SlioM>QSeolol. We of the board of bar commissionersof the st.atebar from Wil So.. YOUIIOlenh Money. 1967to 1979."As long as lawyerspractice their profes • Wdho.,..,. 5 Y.ott ofLegal Video £.p.1i.nc-• oMI Wetl Ovet 1000Vkloos Complolo, Wt Havt th.tibpe,ienc• to Hol'ClteAll of Y°"" V-ideo Netcb sion in this ... .irea. U1e personaland 11rofessional life of GeorgeF. Woolenwill seive as an lnspirational guide. Ours is a nobler professionbecause he practiced law.· ,~~!:o_"c.-- - WilliamT. Campbell, Jr. 205-987 -2114 • 888-48-VIOEO President, TalladegaCounty Bar Association I -I - - \ \ t ttorneys' Advantage is extending a special invitation to lawyers in Alabama. Simply contact Professional liability Insurance, Inc. to receive your I no-obligation quotation . Plus, you'll receive a complimentary copy of The Quarter Hour, our • Financial Stability... policyholder risk management Attorneys' Advantage is underwritten by TIG newsletter. Insurance Company, A.M. Best rated A (Excellent), XI. 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Although 1763it was claimedby France as part of the passagewas only a horse path, by Es1ablished 1815 Louisiana.From 1763to 1780England the lerms of the lreaty the Indian chiefs claimed!he terriloryas part of west kept boats at rivers and large streams Florida.And from 1780lo 1795Spain for the use of men and horses. They claimedit again. In J 795the land also mainu,incd accommodations for became a part of the United States. travelers. The prices charged for lhe Tu>omore decades passed before this ferry serviceand for the inns were regu. wilderness In lhe "Old Southwest'' lated by an agent for Indian Affairs. became a county.Settlement of the area In 181I a subsequenttreaty allowed the required reliable transportation.The Thefollowing rontinuesa history UnitedStates to enlarge the pathwayso AlabamaRi>Jtr 00\\IS through the coun that whicl-wagoru. cartsand the of Alabama:S county courthouses ty, so water transportation made a por like- Mfl·Mli·l'iithMIHl+fM 11taA11111ama um.,u hand-to-handfighting was witnessed by a numberor soldiers on the riverbankand assuredSam Dale'sreputMion as a hero. Dale County,Alabama is namedfor him. The CreekIndian Warended with the Treatyor Fort Jackson on August9, 1814.As a part of that treaty, lhe Creeksceded their claims to a subslllntialamount or territory that extended from the comer or present-dayFranklin County through cen tral Alabama,all the way to the Spanish territory in Florida. This area consistedor approximately21 .500 square miles. By proclanlilliondated June 29, 1815,Covernor David Holmes of the Mississippi Territorycreated MonroeCounty from these ~frmrooCour1tv C Hffifi·j'ff'j:jj-ffj,fHThr llubomo~ Walkerhad settled in the area in 1815. In 1822he erected his first gristmill on Walker Creek. He later built asmall store and tavern. The placehad becomeknown as Walker'sMi ll and Store. Afterit was chosen for the county seat due to its "central" location, it was called Centerville. l-lowever,since a Centerville already existedin Alabama, the name was per manently established in 1832as Monroeville. The town of Claibornecontinued as a promi nent cotton shipping port and commercial center throughout the antebellumperiod . l-lowever, its fortunesdeteriorated as the col· ton economywas destroyedby the CivilWar. By 1872,the town had only 350 residents. Todayonly a fewhomes mark the area where f.fmttOeCounty lleritage /ifuseum once stood a fort, a county seat. and the loca tion of the state's largest cotton shipping port. In 1832.J udge l-lenry Taylorse lected a site for the first of the four courthouses that would be built in Monroeville. This site is believedto be between the location of the Lwopresellt courthouses. It was built of logs and burned in the 1830s. Manyearly records were lost. A newb rick courthousewas soon built. The actual construc tion date is unknown.A photo takenyears later showsa twer story buildingwith wrought iron stainvayson both sides leading up to an iron porch. The windowsappear to have woodenshut ters. lt was from this courthouse in April 1865that Probate JudgeT . M.McCorvey rode out to meet northern soldierson the outskirts of town and persuadedthem not to burn Monroeville. Aftera new courthouse was bu ill followingthe turn of the century, the older structure continued to serve the county as John&rmett andJud.(Je. Stun li~lch unrellmonu,n ent. la,u Day /997. Alice Firr<:h/.ee looks ,,,1(far right). the location of county archives. It also contained lawoffices and businesses,i ncluding a drug store. Unfortunately, like its predecessor,this building burned. The year was 1928. Many M. T. Lewmanand Company,contractors of Louisville, more of U1eearly MonroeCounty records lay in ashes. l(entucky,built the tan brick structure. Bricksand building By 1900Monroeville was incorporated,had passengertrain supplies had to be shipped to Monroevilleby train. When the service,dai ly mail and a thrivingbusi ness community. Probate courthouse was completed,the Monroe Joumal boasted, ''The Judge NicholasSta llworth dreamedof a new,larger and grandly new courthouse is one of the handsomestand most conve designed courthouse. AndrewJ . Bryanof NewOr leans. a promi niently appointed in the state, and one that would do credit to nent southern architect, was hired for the project. a county far exceedingMonroe in wealth and population." Bryan designed a three-story domed courthouse of Neo Over the years, the building has undergone remodelingand Classicaland Eclecticstyles . It was built in three sections with renovations.Records show that the first such projects took each section having a differentshape. The eastern portion is place in the late 1920sand early 1930s. In the late 1940s, two-stories high, constrncted in the form of a maltese cross, other improvementswere made and a vault installed to store and topped by an octagonalclock tower with four clock faces. county records. Still, as the county grew, the building became Entrances are locatedat the corners which create triangular inadequate to meet its needs. shaped officesaro und the lobbies.The central section is a Probate Judge Eugene T. Millsap. a staunch fiscalconserva three-story oval structure. The lower level housed the probate ti\le, took on the construction of a new courthouse as his pet officen anked by curved, coveredwalkways on the outside. The project. The fulfillmentof his plans took some time. because rest of this section contains the two-storyoval courtroom. The they called for U1ecourthouse to be paid for with cash in hand western section is a three-story rectangular unit with addi lea\lingno debt for the county. I-leaccomplished Lh is task in tional officespace as well as witness and jury rooms. 1963,the year he died while in office,leav ing more than one Bryandesigned other courthouses in Georgia, Mississippi million dollars in the county coffersafter the building debt and Louisiana. Several of these had features similar to the was paid. MonroevilleCourthouse. He designedan almost identical Fortunatelyfor MonroeCounty and the State of Alabama,lhe structure in 1904for Troup County at LaGrange,Georg ia. 1903courthouse had been built on only about one-third of the Unfortunately, MonroeCounty's sister courthouse building large town square. 1\vo-thirds had been left as a park. When burned in 1936. planswere made for a new courthouse, there was no need lo I TIie Alobwnolru i11.:r Hd·Jifi j,jf ff ,fflf ff H demolishthe old courthouseto the courthouseeach year dur makeroom (or a newstructure. ing the first two weekendsin This pattern of tearing down May. I.ht old to make room for the In 1997the AlabamaState new has~n a commonJll11C· Barinitiated a Legal Milestone lice in Alabama.However , Programto focusthe public's Monroe County was able lo save attentionon the lawand iL~ its architecturaljewel, which place in Americ.,·slife. Two could not be cost-effectively murkerswere dedicated 0 11Mu y reproducedtoday. I, LawDay, 1997. One o r these The 1963Monroe County l\,o markerswas unveiledal the Courthousew:is described b>· its MonroeCounty Courthouse in a JUJJter Comrm, 1/ousrotl UI dtdiaJtlOtl0."""""'6 architectsas containing"design ---- cemnonyattmded by Alabama elementsreminiscent of early SupremeCourt Justice J . soul.hembuildings. " This buildinghas a CormanHouston, Jr~ \\no wrote the mark long opm porch \\•ithrocking chairs, a er text.Circuit Judge Samuel 11 . Welch,bar secondfloor balcony, and cypresswindow commissionerJohn Barnett,Ill, and Alice shutters. It Is of moderndesign. co nslrucl· Finch Lee,a Monroevillelawyer and the ed or reinforcedconcrete. and covered sister or auU1orHarper L-ee. 1'he marker with salmonpink brick.The twoco url p;,ys lribuk lo fictionallawyer Allicus houSj)Son lhe townsquare provide a strik Finch.who representsan ideal and role ing contr.islof architecturalstyles. m 33 4 NOVEMBER 10tr J 11111LEGI SLATNE WRAP-UP ByRobert L McCurley,Jr. Special Session partners and other matters. Follo"'ingU1e statute to conform the l.lmited The Legislaturem cl In a SpecialSession lead orthc 1985NCCUSt Acl, sec tion 201 Partnership Actwi th recent revisionsto in Septemberlo pas. ~ .~£tban111UN~ H (·J'fij'jijfiPfffffW the National Conferenceof D. Withdrawal of Member bers a.nd managers.T hesesubsections Commissionerson Uniform State Laws. The rules governing purchaseof a are derivedfro m DelawareJaw. Theses tandards are similar to the stan member'sin terest after withdrawal are r. Transition dards for partners under tbe Alabama deleted. However,the buyout provisions After December31, 2000, it will be Uniform PartnershipAct (1996).Th e of the professionalcorporation statute effectivefor all limited liability compa proposed amendmentsare more specific haveb eenadded t o the rules governing nies. Before January I, 2001. limited Jia, than the otl1er laws in governing access professionall imited liability companies bility companiesfor med under prior law and use of information. in the event interestsin a limited liabil may elect to be subj ect to the new Act. ity company are transferredto persons C. Definitions During the Special Session there were who are not eligible to own interests in Many minor additionsan d modifica 379 bills introduced. The January 1998 professionalorganizations. This does tions havebeen made in light of experi Alabama/.,awger will review any bills not representa substantial changeas to encewith the existing law. A definition affecting lawyers. professionallimited liability companies. of "businessentity" has beenadded . The Anyonewishing further information amendments provide for an "organizer'' E. Members concerning the Institute or any of its to form the limited liability company. A number of provisionshave been projects may contact Bob Mccurley, The requirement for an initial report modified to provide for single member Director, Alabama Law Institute, P.O. has been deletedas unnecessary.T he limited liability companies. Such com Box 861425,Tuscaloosa, A labama term "dissociation"has beenelim inated panies will be ignored for income tax 35486-0013,P AX( 205) 348-841 l, entirely. The concepthas no function purposes.Rules have been added allow Phone(205) 348-7411. Institute Home now that "continuity of life"-as used in ing the heirs to continue a single mem Page- www.law.ua.edu/ali • the TreasuryRe gulations-is not a con ber limited liability company after the cern. The term "dissociation" has been member dies or becomes incompetenL This issue marks the 90"'edition of replacedwith "cessationof member Ruleshave been added to make explicit "legislativeWrap.(4), » which has ship" where necessary. the authority to create classesof mem- appearedregular ly sinceJanuary 198.3. Health Ma)or Medical. Provides personalized comprehensive coverage to Lawyers. employees. and eligible family members. The Southern Professional Trust is totally underwritten by Continental Casualty Company. a CNA Insurance Company. Life Family Term Life. Provides benefits for Lawyers. spouses, children and employees. Coverage through Northwestern National Life Insurance Company. Security Olsablllty Income. Features "Your Own Specialty" definition of disability with renewal guarantee and benefrts available up to 75% of your income for most insureds. Coverage through Commercial Life, a subsidiary of UNUM. Peace Of Mind Business Overhead Expense Insurance. A financial aid 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 30324-3172 404-814-0232 If you're a Lawyer practicing in the State of Alabama, Insurance soo-241.ns3 Specialists, Inc. offers the finest insurance coverage anywhere. We're here to help with all your insurance needs. EST.1959 FAX:404-814-0782 INSURANCESPECIALISTS, INC . fffjj/\·\'Jifj,ji·Sf,ffF TlteAlabttmrJ Lmty 4'1 MEMORIALS JudgeDonald H. Patterson counsel, uncanny common sense, for ing of people, of human nature, of the midable intelligenceand unshakeable human condition that set him apart he LauderdaleCounty Bar faith providedme and many others with from the rest of us. He was simultane TAssociation has bestowedon me the a compass for living. It is these ously a philosopher and theologian, a distinct honor of writing a tribute and thoughts I wish to share with fellow humorist and an academician. Judge drafting a resolution honoring my for members of our bar. Patterson was simply an uncommon mer law partner and our late Circuit With Judge DonaldH. Patterson's man among us commoners, not because Court Judge Donald H. Patterson. This untimelydeath on May28, 1997,the of birth or position, but simply because task is personallydaunting, for my ini LauderdaleCounty Bar lost a judge of of the wealth of respect he earned. He tial reaction is unworthiness to under the highest rank. He was simplythe was comfortablein any companyand take such a responsibility.I find it very embodimentof a circuit court judge. The made everyonecomfortable around difficultt o write objectively about a per dailydischarge of his judicial responsibil him, from his fishing buddies, to the son for whom my respect has no limit; ities evidencedan insight and under members of the Sunday school class he it is even harder to write about a person standing of his role that should be an taught at FlorenceFirst Methodist,to I loved.There is just so much about exampleto his peers and all who are his lifelong friends. He was completely entrusted to followin his footsteps. unaffectedand unpretentious; he was Judge Patterson relished his role, not the real article-a genuine individual. becauseof the position, but becauseof The words of Antony to Crassus describ the opportunity he had to constructive ing Brutus apply to Judge Patterson, ly affect the lives of so may people. As "His lifewas gentle and the elements much as his loss will be felt by his fel so mixedin him that nature might low judges and the lawyerswho stand up and say to all the world, 'This appearedbefore him, it is the people of was a man." LauderdaleCounty, those whom he Andso he was, totally dedicated to his directly served, who will be most affect wife, Dee. and to his three children, ed. From the personal interest he Ben, Donaldand Elizabeth.He con showed in criminal defendantsthrough stantly providedus all with daily exam his stern yet wise admonitions, to the ples of personal service and propriety. attempts to craft the most equitable of However,as admirable as were all of divorce settlements, to his concise yet the foregoingcharacter istics, there was infallibleapplicat ion of the law to facts one aspect of Judge Patterson'slife that in complex litigation, Judge Patterson undergirdedand permeatedall others, adeptly administered the responsibilities and that was simply his faith in and rela of his office.H e possessedthe rare gift tionship to God. Don Patterson did not of drawingon a limitless reservoirof simply practiceChrist ianity, he livedit. Ju,lfle0,,,10/d H . Polltr!l(Jr, everydayexamples to illustrate legal He understood that he was a mere points. In analyzinga difficultcase, he trustee of the gifts Godhad given to him could apply his unique style of wit and and that his greatest servicewas being wisdom and make a young lawyer(and able to share them with others in the Judge Patterson that I would want to older ones too) better appreciate the context of his professionand calling, not include in a memoriam, so many per true issues in their cases and the poten necessarilyby public witness or verbal sonal anecdotes that describe his tial weaknessand deficiencyof their profession, but simply through his unique personalityand paint his por arguments. There has seldom been a lifestyle and the thoughtful approach to trait more clearly than mere recitals of · judge or lawyerwho could more quickly the matters he was asked to resolve. his considerable accomplishments.The grasp the gist of a case. Judge Patterson's life was a livingwit limits of time and space preclude this But it was more than the easy compe ness to the beliefs he held so dear. and I am left, for the most part, with tence of a person born to his role as a This fact could not be better epito my personal recollectionsof a true judge ,vhich distinguishedJudge mized than the manner in which he friend and mentor who, by his wise Patterson. It was his keen understand- facedhis final challenge. Realizing that TheAlabama Lawyer H'j·J'Jih =jj·ififfifffH his illness1Va5 fatal. he did nol give in to James E. Moore Ohio and a lifelongresident of Mobile, normal human reactionsof regret and Alabama.He graduated from McGill self-pity.Rather, he continued to see as hereas, the MobileBar Association Institute. Springhill Collegeand the man)•of his friendsas p()ssible,many Wwishes to honor the memory of Universityof AlabamaSchoo l or I.aw. more Ihan his doctors woulda llow. con James E. Moore.a distinguishedmem Jimmy had been in the practice or law slanlly talking and Joking with all or ber or this Association. who died on in Mobile County for over 50yea rs and them as if nothing were wrong, as if he Friday,April 25, 1997 and the was Mobile County Attorneyfor lGof would be back on the bench nexl week. Association,desiring to remember his those years while still maintaining his putting e--eryoneat easealthough know name and recognizehis contributions pri,,;itepractice . ing that his end "'ilS near. I personally to our professionand to this communi At the time or his death he was a have newr seen anyone fa,:edeath with ty; now. therefore, be it rtmembemL member of Christ the Kini!Catholic more dignity and resolutenessthan James E. Moore,known to all as Church. a member of the Knights of Judge Donald H. Palterson. "Jimmy."was a native of Cleveland. Columbus Council #666,a Cha,te r Upon being asked by one of his asso Member of u,e i'riendly Sons of SL cfate., how he maintained such opti i'atrick and a former board member of mism given his circumstances, he pre the ProvidenceHospital. dictabl)•had the answer."I remembtr Jimm)•practiced general lawduring his reading. • Judge Patterson said, "That lifetime.He focusedon adm1mstrative lhe noted ne-..,;paperman and atheist, and municipallaw along with a practice I l.L.Mencken, once observedthat if in the fleld or real property.I le represent· Christianity is all that it's cracked up lO ed his clients in an excm1>laryma nner be.why does every Christian go kicking and lrealed his clients and fellowpracti· and screaming to his death? I resolved tioners with dignityand courtesy. then and there that if ever I gol the lie was ne--erloo busyto take time to opportunity.I was going to prove Mr. offer assistanceto those who Wi!tt in Menckenwrong ." Judge Patterson did need, whether clients or acquaintances. Just thaL By his death, the State of It was evident in each day of his life that Alabamal ost more than its nnest circuit courtesy and consideration were his court judge. it lost a unique individual outstanding traits and for which he will whose life and servicewas truly the be missed the mosl by those with whom epitome of his profession. he associated. I It is greaUymissed. Jimmy wasa devoted father and fami - Cary L. Jester ly man, leavingsurviving him his wiie. LauderdaleCounl) • Bar Association Margaret LevelMoort. t.wodaughters. Otis R. Burton John LawrenceGodbold Barry Reed Tuggle Talladega Camden Birmingham Admitted: 1957 Admitted: 1938 Admitted:1995 Died:July 23, 1997 Died:July 5. 1997 Died:J une JO, 1997 James Howard CaldweU James E. Moore Albert J. Tully uin ell Mobile Mobile Admitted: 1948 Admitted: I 948 Admilled:1935 Died:Ma.v 4. 1997 Died:April 25. 1997 Died:Mag 22. 1997 Houston Thomas Eddens William Alfred Ste1-ensoo Robert T. Wilson 8inni11gh11m Birmingham Jasper Admilled: 1.947 Admilled: 1950 Admitled: 1950 Died: July 2, 1997 Died: April 8. 1997 Died: Ju(v 36. 1997 Michael Carlisle Farrow Billie Anne Tucker George W.Wit cher, Sr. Houston. Texas La/aye/le Gardendale Admilled: 1972 Admitted: 1959 Admitted: 1947 Died:August 22. 1997 Died:July 13, 1997 Died:August 10. 1997 Hfitih·i'li\Hi-ffll,fM TMAl~l.-wr Mrs. Terry (Peggy)Taunton and Mrs. adult life as a volunteer civic leader in AmericanR ed Cross, a singular honor Gregory (Mary) l'unk. and one son, Mr. his community and country, and 59 and a position of great responsibility. Jimmie M. Moore. years as a devoted husband and father, His faith combined with his other He is survived by his brothers, George and, more recently, as an equally devot qualities drew him into the affairs of the J. Moore, a local attorney, and Brother ed grandfather. Those who practiced law Spring Hill Avenue Temple, which he MichaelMoore. S.J., and Brother John with him as partners or associates served for a time as its president, and Moore, S.C., two religious brothers. loved, respected and learned from him also lo service on the American Council Jimmy served in the European how to be better lawyersand better peo for Judaism. Theater in World War II. He fought in ple. His clients and his contemporaries A leader in his chosen profession, he and survived the Battle of the Bulge. at the bar savored firsthand his intel was a past president of the Mobile Bar He was a tenacious advocate who was lect, wisdom, integrity and his mastery Association. a past president of the firm and efficient in his representation of each legal matter undertaken-so Mobile Estate Planning Council, and a of clients but, as with all great men, he thoroughly and thoughtfully prepared, Fellow, American College of Trust and was constantly aware or the importance so candidly and persuasively presented. Estate Counsel. of courtesy. Only his wife, Mimi, and those per Now, therefore, be it resolved, by the Now, therefore, be it resolved, by the sons closest to him can know the per Mobile Bar Association, in meeting Mobile Bar Association on this 20"' day sonal sacrifices he and they shared assembled this 20"' day of June 1997, or June 1997, that the Association together in terms of the time and mate that the Association commemorates the mourns the passing of James E. Moore rial goods which he gladly bore in serv life of Ralph Cans Holberg, Jr., and with and acknowledgeshis long and honor ing his fellow man as a private citizen. il, lhe peerless example he has set as a able service to the Association, his pro The list is so extraordinary that only a lawyer,cit izen, patriot, spouse, and par fession and the community and that portion will be here recorded. ent, the hallmark or his life having been this resolution be offered as a memorial Asa member of the Junior Chamber of unselfish service to others, tendered to his family. Commercehe was instrumental in forc with faith, wisdom, integrity, wit, and - Cooper C. Thurber ing the installation and use of voting kindness, enriching the lives of all who President, Mobile Bar Association machines in Mobile County, and wa~ have known him; among the founders of the Mobile A7.alea ResolvedrurU 1er, that this resolution 1rail. A fom,er presidentof the Mobile be spread upon the minutes of his Ralph GansHolberg, Jr. and AlabamaJaycees he received the J.N. meeting; and copies hereof, suitably hereas, Ralph Cans Holberg died cam,ichael Memorial Award· in J 984. /\t inscribed, be presented to Mimi W on April 7. 1997, closing a various times he servedas chairman or Holberg, to the members or his family, remarkable career of service spanning president of the Mobile County Boardof to his secretary of 57 years, Gertrude 88 years of life, 64 years as a lawyer fol· Pensions and Security,the Mobile "Miss Mac" McCorquodale, and the lowing graduation from Lhe University ExchangeCl ub, of which he wasa char· Alabama State Bar. of AlabamaSchool of Law, active duty as ter member,and the MobilePublic - Cooper C. Thurber a Lieutenant in the United States Navy Library Board. He also served as an active President, Mobile Bar Association during World War 11, all the years of his member of the boards or the Mobile YWCA,the MobileCommunity Chest and Council, the GordonSm ith Center,the ForrestLamar Adams Councilof the NationalMu ltiple Sclerosis hereas, forrest Lamar Adams was Society, and the Mobile Historical W born and reared in Texasville, the DevelopmentCommission. l'or all or this son of the late Samuel Kincey Adams and much more than can be recorded his and Pearl Butts Adams. He attended fellowcitizens recognizedhim as school in Texasville but later transferred Mobilianor the Yearin 1963. to Dothan where he graduated from One charitable organi1.ation particular Dothan High School in 1939. In the fall ly absorbed his multiple talents for over or l 939, he entered the University of 60 years-The American Red Cross. After Alabama, enrolling in the school or com serving in every leadershipcapacity i n merce and businessadministration. the local chapter he becamea nd While at the University, he was induct remained until his death an active emer ed into Alpha Kappa Psi, later becoming itus director, regularly attending meet president of the National Honorary ings where his sage advice was constant Commerce Fraternity. He receiveda ly sought and his delightful wit was bachelor's degree from the University of alwaysenjoyed . Beyondthe chapter he Alabamai n March 1943and a commis was a chairman of the Southeastern Area sion as a second lieutenant in the Coast AdvisoryCou ncil, and later served two ArtilleryCorps in July 1943. He served in RalphGans Holberg, Jr. terms as one of the 30 elected members the Armyfrom 1943unti l 1946, serving or the board or governors of the three years in the PacificTheater. He was TheAlabama lawyer H/i·JIJJ:B·H·f fijfAff F Alabamau pon the de.1thor Judge tary service. from June 13, 1938 until Keener Baxley. a position he retained his retirement in 1995;and, until 1979, at which time he retired. WhereasJ ohn L. Godbold.who as a Surviving are his wife, Ann Koeppel lawyer in an age of specialists,was an Adams: two daughters and sons-in-law, accomplishedgenera list, being highly Julia and Randy Roark and Margaret admired and respected among the and WayneThornton: a son and daugh bench and bar and in his community; ter-in-law.Samuel L. Adamsa nd Mary and was a highly qualified attorney. rep Earle Adams:seve n grandchildren; and resenting an extensive clientele includ other close relatives. ing individuals. the Bank oi Camden, - John Emory Waddell the Bank of Pine Hill, the Town of DoUl an Camden, businesses. corporations, and timber companies; and, WhereasJohn L. Godbold possessed JohnLawrence Godbold the high ethical standards and polisbed hereas the HonorableJ ohn manners of a southern gentleman and W LawrenceGodbo ld departed this through his life and work set an exam lire on Saturday, July 5, 1997 at the age ple of which the bench and bar takes f()l'Tf!Stl..cnnar ;lda,ns of 84 years. great pride and holds great respect; and John L. Godbold was born December was a man of great integrity and per 4. 1912 in WilcoxCounty, Alabama to sonal character; and was active in serv discharged from the service in J 946 as a Stanley CliffordGodbo ld and Mildred ing his community in many ways, captain in the U.S.Army Reserve,la ler MccaskeyGodbold; an d including membership in LheCamden retiring as a major. Uponbeing dis John L. Godboldwas a descendant of ExchangeClub and the American charged from the military he enrolled in prominent familiesin the Alabama Legionand being instrumental in the the University of AlabamaSchoo l of Law Black Belt:and attended public schools formation of Wilcox Academyand in and receivedh is LLBdegree in 1948. serving on its first board of directors; In 1949.l'orrest Lamar Adamswas and, admitted lo the practice of law in WhereasJ ohn L. Godboldwas a lifo Abbeville.He later was associated with long acti11e member of U1e Camden L.M.Ada ms, Jr. in the law firm of United Methodist Church, where he Adams& Adams. served as trustee and steward: and mar In l 952, he was appointed county ried the former MaryScott Leckie.L eft solicitor (district attorney) for Henry surviving him are his wife; his son, County, and held that position until John Lawrence Godbold, Jr.; and his 1957 when he was appointed circuit grandchildren, Prances Ann Godbold solicitor of the 20'" Judicial Circuit of and John LawrenceGodbold, Ul; and, Alabama.composed of Henry and WhereasJohn L. Godbold was always Houston counties. He was later elected loyal to his faith, his family, his ideals president of the AlabamaC ircuil and high character, and to his clientele; Solicitors Association. Dul'ing the time and the passing from this mortal life of he practiced law in Abbeville,he was John L. Godbold represents a great loss very active in civic and church affairs, to the bench and bar and to the com having been elected president of munity; and the friendship, wise coun AbbevilleLio ns Club and serving as a sel and good humor of our departed steward on the officialboard of the brother will be greatly missed. Abbeville United Methodist Church, John l.nwnmr:eGodbold - Donald M. McLeod superintendent of Sunday School, Wilcox County Bar Association Masterof the Henry MasonicLodge No. in WilcoxCounty, Alabama, attended 91 for two terms, member of the Marion Military Institute, and graduated Eastern Star. a Shriner and a 32"' from Erskine College in 1934 and degree Mason,and lay speaker for U1e received his Bachelorof Law degree Methodist Church. from the Universityof Alabama on May In 1966.Ada ms was appointed a cir 23, 1938;and, cuit judge in the 20"' Judicial Circuit or WhereasJohn L. Godboldserve d his Alabama. In 1977, he was elected presi· country in World War II in the Pacific dent of the AlabamaCirc uit Judges Theater in the United State Air force Association.He bec.1methe presiding from 1943 to 1946; and practiced law in judge of the 20'' Judicial Circuit or Camden, Alabama, excepting his mili- Jgfy 8d , s AWi~ Le:..,~~Wl &ra~ l lffldil, AL BySusan CullenAnderson Sister with SacredHeart Monastery, look this work becauseyou're going lo be pat the pro bono casewithout hesitation.The ted on lhe backand thanked by a grate Blount Countycouple, unable to ha,'I? ful clienl" Sister McKenziesay5. "Youdo childrenof their Ol\'TI, hadgone baby it becauseit's the right thing to do." shoppingin Texas,where Maria lived. · 1 Mariasurely "'t>Uld have lost her baby don't knowthat she knewthey were baby boywithout Sister McKenzie's free help,A shopping,'' Sister McKenziesays. Th e pennilessillegal alien who speaksn() coupleoffered Maria a job in Alabama Englishwould have no 0ptionsif not for with thtir business,and al.looffered lo pro bono representation.With private take the b.,bysince she wouldhave her practitionerscharging SlOO per hour or hands fullwith other childrenon the long more, many fomilieswonder if lhe legal trip. Mariawasn't ab le Lofollow im medi· systemoffers them any relief. Sislerlg,m }lurla /itcJ(flnzieoulsido lhct 01lf,na11 ately,nnd the couple beganthe processto Withthe assistanceof the privateb,lr, COUT!liiOJurthous,,, obtain custodyof the boy. hOWe\ler,some poor Alabamiansare get Sister McKeru,iefiled a petition in ting lhe legalhelp they need. Through Blount County to return the child lo his the VolunteerLawyers Program (VLP), mother, and the couple told Mariathey membersof the Aln.bamaSlate Barvol ack in 1994, Sister Lynn Marie would turn her in to lhc Immigration unteer their Limelo aid poor Alabamians Mcl EtflU·iii Ui'iil+fM 11w""'6dmit lAqff 'W"HE HIGHEST QUALITY IN COURT REPORTING o,.,., "" "' .tJ...... '!>CU O •-• '" • V O t O l'Al'I "' "' , .... - 1)1 .-.,, ! ,, .. ~LJ It A, .. ' AULO I'" , ••" o,, .,,., filer M/() fl Morr!a11 Untilnol long ago. all casesreferred to the Volunteer LawyersPYogram had been processedthrough a Legal Nicliols Pritchett Servicesoffice. Now. the programreceives referrals from COURT socialservice ngendes. churchesand attorneys as well,says REPORTERS Ms. Oliver.Most cases still originate from LegalServices, 575 PAJUt P\.ACC: TOW(.A • 2001 PA"J( ftl.,.AC-1£NQIIITM Btfl MINGHA,.., A&..ADAjr,IA t1D203•ll193 though. "I probablyla lk lo 15 people a day I C/ln'the lp," says 205-252·91!52 • WAT• t ,800,.4.&8 •6031 RebeccaBrooks, 1rn 1nagingattorney for the Tuscaloosa FAX 205•21Ul..O I 00 The 1998 Thur sday, January 22, 1998 • Embassy Suites Hotel • Montgome ry, Alabama T hisyear's program. "The Judge's Role as Gatekeeper:Responsibillties and Powers." features nationally kn own Harvardlaw professor Arthur R. Miller. among others . ProfessorMiller will seNeas moderatorto 12Alabama Judgesand attorneys examining the relationship of judgeto witnessand jury . Includedin thediscussion will be theexploration of thejudge's responsibility lor overseeingthe quality and sufficiency of circumstannaland scien tificevidence. as well asthe use of court-appointedexperts . Theregistration fee of $50will includelunch and several afternoon discussions. A recepuon will beheld that nightat theEmbassy Suites at 6 p.m. Formore information. call Callie Dietz , administrator.Alabama Judicial College. at 13341242-0300. ~Alabutml IAW'fe't M,l·lifi I UliilPii&ffE regionaloffice of LegalServices Corporation of Alabama.·we can't handle all of the demand,"she says,adding that her officerefers out caseswh ich don't take a significantamou nt of lime and "aren'l too messy." The VolunteerLawyers Program is especiallysuccessful In Mobile,says Luke Coley.a Mobilesolo practitionerwho is the immediatepast chairmanof the state bar's Committeeon Accessto LegalServices. The Mobilepro bono program, with more than 350 of its 800 eligible lawyersparticipating, is "a giganticsuccess-by far the best in the state," h~ says. Nationally,about 17 percent of attorneysdo pro bono work. 5a)'S Ms.Oli"er. In Alabama.20 percent of liansed attorneys are memberso r the VLP.she says,and many lawyersdo pro bono work outside the VLP. Coley'sparticipation in the VLPc.,n be attributed to "a combinationof religious, professionaland philosophicalrea sons."he says. "I think we are littler offas a country -..,hen more peoplefeel like the legalsystem is open to them; Coley says. I le repeatedo story about AndrewJackson M military go"emor of Florido, who intervenedwhen a land speculator tried to lake advantageof two orphanedgirls. In resl)Onseto the situation, Jacksonsaid, "In general,the great and the rich can protect themselves,but lhe 1>oorand the humblerequire the nrm and shield of the law." Jackson'scommen t sums up Coley'sphilosophy o n pro bono work,Coley says. The ultimate goal is for each local bar associationto have its ownmechanism for referringout pro bono cases. Coley RdRwa 8roolts~,gi,,g in.,,. on,,.,fmorit, pat/11ncs. U10lfrmgin 1w,rfll"' says.While Mobil e is a successstory, Coley says with some de,, al hum,, diplomacythat olher areas have work to do. Alabama Bar Institute for Continuing Legal Education The University of Alabama School of Law Alabam a State Bar A Best Selling ABICLE Publication! Newly revised by Editor Patrick H. Graves, Jr. Bradley Arant Rose & White , LLP Huntsville, Alabama Alabama Divorce Systems Manual • Checklists & Work Orders • Procedures & Practice Tips • Forms & Clause Choices • Forms on Diskette Book and Diskette $85, ABICLE , 800-627-6514, 205-348-6230, or www .abic le.org Hffll/·J'jjfj\iJIIJ\ ·fH 77wN.ibomt1Latrwr In rural areas, many attorneys do pro bono work outsideof was overwhelmedby her son's unpaid medical bills. an organizedprogram. says Ms.Oliver. so it is hard to measure She had tried over the previous 20 years to collect the long. the real level of success.'1 think we have pretty committed overdue child support owedby her ex-husbandfor their two people and a pretty good interest," Ms. Oliver says. '1'he pro sons, but "he never paid a dime, never."Ms. Hall says." He gram is growingand the number of attorneys is increasing.'' wouldn't even help me bury my son." In 1984, after their son, Agood relationshipbetween t he private bar and Legal Services John Hall, Jr., died, she hired a lawyer,without results. helps a localpr ogram to succeed,since the ''vast majority"of the BecauseJohn 's treatment was experimental and he lived casescome from LegalServ ices, Coley says.I deally, casesare with leukemia for three years, his medical bills were monu assignedbased on expertiseand e.~perience, he says. mental, and she had barely made a dent by 1995. It was then Volunteerattorneys designate the areas of law in which they that her niece told her about Rebecca Brooks.Ms. Brooks are willingto accept referred cases,but even where the assigned went to court for Ms. Hall to collect her chiI d supp0rt. attorneyis unfamiliar with the relevantarea of the law.she has "She reallyfought for me," Ms.Hall says." I don't knowwhat plentyof help.T he VLPand the Accessto LegalServices I wouldhave done if she had not come along." Ms.Brooks col Committeesp0nsored the creation of a manual on nine ·'bread lected $33,000 from Ms.Hall's ex -husband,wh ich while only a and butter" areas of law, including divorce, collectionsand portion of what he owed,was a godsendf or Ms. Hall. mortgageforeclosures. which g uide the volunteerattorney For people like Mariaand Ms. Hall. pro bono assistance and through w1familiar territory.M ore seasonedlawyers can act as Legal Services have opened the door to the legal system, a mentors or co-counsel to less experienced attorneys,as well. door which otherwisewou ld have been locked tight If In the long term, the plan is to build a separatepro bono Alabamaattorneys continue to answer the call of the VLP, program in each area of the state, Coley says. Eventhough more Marias will have their day in court. • some areas have proven to be more of a challengethan others. there are lawyersw illing to serveand needs that need to be met all over Alabama, he says. If you have comments or would like to join the VLP, Ms. Brooks, who works full-time for LegalServices, says please contact the 1997Committee on Accesst o Legal the rewardsare plenty. "There have been as many gratifying Serviceschairman, ProfessorPamela H. Bucy, Universityof situations as have been sad ones," she says. One of her most AlabamaSchool of Law,or t NEW EDITION ALABA MA LAW OFFICE PRACTICE DESKBOOK, EIGHTH EDITION 1997 by Robert L. Mccu rley, Jr. This bookhas been a popular Thishardb ound editionof 610 pages Includeda lso are chapters on Oil and lawyers' handbook wilh attorneys is convenientlyorganized in 43 Gas. Commitments,C ollections. since 1982. The new editionin cludes chapters for quickrefe rence. Alabama AdministrativeProced ure updated chapters on childs upport. Chapters on Real Estate, Adoption. Act, OSHA. Patents, Social Security, Corporations. Partnerships. LLCs. Conservators.Commerc ial Workman'sCompe nsation, Medicaid, LLPs.t he NewWelfa re ReformAct , Transactionsa nd Estates outlinet he Bankruptcy.and other areas of and the New Heallh Care Directives general law and are accompanied Alabama law. form. with the latest forms. ·······--- ···----- LAWYERSEDUCAT IONALPRESS •Allorders must be PREPAID. Make checks payable to Post OfficeBox 861287 LAWYERSEDUCAT IONAL PRESS. If not satisfiedyou Tuscaloosa. AL 35486 may return the bookw ithin 10 days for a fullre fund. NAME ADDRESS,~------~ Please send me __ copies of ALABAMA LAWOFFICE PRACTICE DESKBOOK . EighlhEdition . 1997 at S83.00 each ($75.00 plus $8.00 tax. postage and handling). Please send me __ copies of ALABAMADI VORCE, ALIMONYAND CHILO CUSTODY HORN BOOK , ThirdEd ition withcurren t Pocket Part. al $89.00 ($80.00 plus $9.00 tax. postage and handling). 1 The Alabama larty,r F /·f'ijijj,jj-i§ffifffM "I( Is roollgpowuful ••. n "The lawyer's Creedwas so impressi-il remindedme of what a lawgeris supposedto be • •. n •11moire s me proud again lo be a lawyer." - LAWYERS' COM,'1ENTSON T l Ii>V IDEO "I didn't realize how mang programsgou had to help the public." "How can our school participatein gour partnershipprogram?" "It was 011 excello,,/vldt'O ... with lots of helpful illfom1afio11." -'Tl IE PL'BLJC'SCOMMeNTS ON THt: VlDEO HOW CAN YOU DO YOUR PART? • Make sure your bar auoclation teff Iha video as soon as p0uible . • Takeew,y OppOttunityto show this presentation in your community, from school• to chutdtes 10 cillic groups and organizations. • If you haven't already volunteered, check YES below 1.0 volunteer to preHnl the program in your area whan raquaared . Thon fa,c tho form to COMMUNICA7JONSBl /334/ 26 1-0310. TO SERVETHE PUBLICis a complete publicservice video presentationthat includes nn eight-minute video.a handbookof speech points and detailed informational brochures for the audience. Designedfor use in speaking to civic and community groups, including schools. everylocal bar associationin the state receivedat least one free copy of the video presentationand 300 brochures.H ighlightedprograms include Lawyer Referral S ervice, Alternative Dispute ResolulionCenter, Law Week. Drug Awareness Projects and School PartnershipProgr:,.ms. Using guidelines and infor mation providedto them. LeoTicheli Productions o( Blrminglwn workedwith a sub-committeeof the LawyerPublic RelationsCommittee on shooting, editing and final productionof the video.The ASBBoard o f Bar Commissioners enthusi.uticallyfunded and supported the entire proj«t. f'i\'e days of shooting in central locations enableddi\'ersity in scene$and opportunitiesfor over 60 lawyersan d/or firms to participate.Designed for use during lhe upcomingthree to fiveyears , lhe video also allowsediting of 30-and 60-second segments for radio and television announcements as part of a long-range public relationsplan. Objectivesof the LawyerPublic Relations Committee pro ject were to: I) highlight publicservice programs and resourcesof the stale bar. focusingon the public.u the true beneficiaryo( our legal system:2) feature real Alabama lawyersinvolved in their communities to presenta posilivemessage about the legal professionin Alabama,and 3) make iLeasy for individual attorneys to take this messageout to their communities. The key to the successo f the program lies wilh each individualb ar member.If the video is noLseen by the public, our effortswill hilve been for naughU The challengeno1U is for Alabama allomey. POR FURTHERINFORMATION, CONTACT CO MNUNICATIONS, ALABAMASTA TE BAR AT (334) 269- 1515, l -800-354-6154, OR [email protected]. __ YES,I will volunteerto assist in presentingthe ASBTO SERVE THE PUBUC vid eo lo cMc. school and communitygroups in my area. NAME BARASSOCIATION ·~------ I ff fl·Hii·PJj jijij ·f fHtfF'ffr ttAlab.imall,u yu Thanks to all the Volunteer Lawyers Program members who give the ir time to those who cou ld not otherwise afford legal services. Because of vo lunteers like you, needy Alabama citizens get the help they need. If you have not joined , please join us In this worthwhile program . Get on the list of very important people. Please join today . To find out more about the Alabama State Bar Volunteer Lawyers Program , coll the Alabama State Bar at (334) 269-1515 or visit the Alabama State Bar's web site at http ://www .olobor.org . WhyWas Your Petition for a Writ____,of Certiorari Denied ? Thelntpm 1lauce of ProctilmalCompliance WithRule 39, ALA.R.APP.P. By Michael Skotnicki' "ROLE 39. REVIEW OF DECISIONSOF COURTSOF "(4) From decisions in connict with prior decisions of the APPEALS Unlled Stntes Supreme Court, the AlabamaSupreme Court, .. (a) Melhod••..• or lhe Alabama courts of ap11eals;provided that when (4) Is "In di other cases, decisions of the courts of appeal may be lhe basis of the petllion. ii must quote that part of the 01,ln rev!L>wedby the Supreme Court upon petition for writ of lon of the appropriate court of appeals, and !he part of the «rtiornrl only afler a court of appeals has overruled ao prior decision with which the con Oict is alleged:or ii shall slate with specificityand particularitywhenein such decision application for rehearing directed to th• poinl, issue. or decision complainedof. is In conmct: aod. .. '"(5) When, petitioner sub lo h.-·e controlling Supreme Court cases overruled which were followedin th.e decision of .. (c) Ground$.The pe.titionIto the AlabamaSupreme CourtI !he court of appeals. for writ of certiorari ..• in a criminal case in which !he death penalty was imposed as punishment shall be faledby counsel representing lhe petitioner oo appeal of the case, and will be "(k) Scope of Review.The reviewsha ll be that employed by granted as a matte r of right. .... ln all olher cases, civil or certiorari and will ordinarily be limited lo the focts stated in criminal, petitions for writs of certiorari will be considered the opinion of the particular court of appeals. If a court of only: appeals issues an opinion containing a statement of facts "( 1) From decisions initially holding ,·alid or invalid a city and if a party applying for rehearing is not satisfied wilh ordinance. a stale statute or a federal statute or treaty, or that statement of facts. the p;irty applyingfor rehearing In initially construing a controlling provision of the Alabama that court may present lo the court of appeals a proposed or Federal Conslitulion: additional or corrected st.aleme.nlof fads or the applicanrs own statement of facts. and mo\'e that court to supplement "(2) From decisions that affect a class of conslilutional. or correct its statcmenl of facts or lo adopt the appiicanfs stale or county officers; proposed statemenl; or if a court of appeals issues a ·no "(3) rrom decisions where a mnlerlnl c1ueslionreq uiring opinion· decision pursuanl lo Rule 53 or 54 or issues an decision Is one of first impression In Alaba.ma; opinion not containing a stnlcmenl of facts. the applicant may move the court lo adopt the applicant's statemenl of Mlch••I Skotnic k i facts. If the court does not gra.nt lhe motion. the pelilloner M.c:l\aelSl Ef!Jld·i'iiM11i·IFffM11, -AJai)(tmalAU'gfr Introduction can determinewhether the petitionfor the writ of certiorarimay ompliancewith the procedural requirements of Rufe be mmtorious. The appellatelawyer must rcmembe.rthat the 39, Ala.R.App.P.,is of critical importance to the ~uccess su1,reme court does not havethe trial court record beforeit when Cof a petition for a writ of cerllornrl.Such petitions con it considersa petitionfor U1ewrit or certiorari.1 'hc only facts be deniedby the Supreme Court of Alu{)amowilhoul review properlybefore the court when il is determiningwhether lo 011 the merits, becauseof a failufl! lo comply with Rule 39. grant a certioraripetition are those factsstated within the opin The appellatelawytr must understand that certiorari reviewis ion of the court of aweals and thosestated in the Rule39(11) not granted by the supreme court as a matter of right m any statementof additionalfacts that was submittedto the courl of civilc.ise and it is only granted as a mailer of right in criminal appea ls on applicationfor rehearing- If such a statement was c,,scsonly if the defendant has been sentenced lo deulh. presented.Thus . if the court of appealsaffirmed Lh e trial court's The fact that many lawyershave had difficultycomplying with judgment by an unpublishedmemorandum setting out no facts the appellaterule go... eming certiorarireview has been well-notfd and the certioraripetition does not complywith the require by the supremecourt and by legalcommentators. See Ex parle ment, of Rule39(k), the petitionwill be deniedbecause the llfochester,544 So.2d967 (Ala. 1989): Exparle Save Our supremecourt will ha,,e no facts properlybefore it IDreview. The Streams. 541 So.2d549 (Ala.1989): E.r parle Moore, 493 $o.2d exceptl()nlo the necessityof compliancewith Rule39(k) Is when 988 (Ala.1986); Ex porle Grear,484 So.2d382 (Ala. 1986);HA. the memorandumor opinion issued by the court of appeals Itself I lenzel, Complying11111/1 Rule 39(k),II.RAP. (How lo Succe,:don sets out sufficientfacts for the supremecourt to makea judg •Q.,y/"),45 Ala.Law. 270 (Sepl 1984):B . McKee.Alabama ment whetherthe petitionhas sufficientmerit to be granted. Supntme CourtPractice - Aroida/JleErrors and Or.'l!f'Sights, 44 Ala.Law. 320 (Nov.193.1). Because the jurisdictionof the c.ourtof A. The First Step : Grounds for Certiorari civilappeals has betn quite limiteduntil recent years.most civil Review under Rule 39(c) caseswere directlyappealable to the supremecourt and many 1. Conflict with PriorCase/aw - Rule 39(c)(4) lawyerspracticing only civ il lawhave been unfamiliar with lhe Manypet itioners havedirficulty establishing a ground for cer proceduralrequirements for seekinga writ of certiorari. tiorari reviewunder llulc 39(c)(4),oy as they mighLThe difficul Ignorance.how~-er, ls no longer blis.s.The Alabama ty liesin a failurelo heed the rather unambiguouslanguage of J..egislatureincreased the court of civilappeals' jurisdiction by the rule. The petitionmust demonstratethat the court or appeals amendingAla. Code 1975, § 12·3-10. ' to raise that court's rulingconflicts with prior decisionsor the UnitedStates Supreme jurisdictional limit from cases involvingclaims for $10,000L o Court, the AlabamaSupreme Co urL or one orthe Alabamaco urts those involving claims of up to $50,000.Even more important of appe.,I.It is not enough for the petlUonerto simply allege lh.1t is the fact that Ala. Code1975, § 12·2-7(6).now allows the the court or appeals ernd In rulingagain.~t the petitioner,or that supreme court lo tr.insfer-·deflect "-almost any civilappeal publishedopinions exist that conOidwith the court of appeals' over which it has appellatejurisdiction lo the c.ourtof civil ruling.For example,the followingstatements excerpted from appeals for an initial decision by that court.' Bec.iuseof the certioraripetitions do not complywith the llule 39(c)(4)require amendment lo § 12·3-10 and the enactment of§ 12-2·7(6). ment of alleginga conOictwith prior caselaw: the supreme court now receives fewerdirect appeals from the Example I circuit courts. but Its caseloadhas shown a corresponding "The basis for this petition for a writ of certiorari is that increase in the number of certiorari petitions seeking revie-,• the opinion of the court belowwas wronglydecided. " of rulings by the court of civilappeals. Example2 As noted previously,many certiorari petitions do not oomply "The petitioner requests that the controlling Supreme with the procedural requirements of Rule 39 and are denied Court cases be reviewedunder Lhefact$ of this case and on that basis. without a reviewon the merits. The purpose or eilher be distinguishedby exceptionor overruled as lo this article is to assist lawyersin meeting the most critical the facts presented herein." requirements of Rule 39. Example3 Procedural Stumbling Blocks "The basis of this petition for the Writ is that the deci So what are Rule 39's proceduralstumb ling blocks to sion of the AlabamaCour t oi CivilAppeals is in conllict obtaining certiorari review?The first 15t he requirement that with prior decisions of lhe Supreme Court of Alabama the petition establisha proper ground for reviewunder Rule on the same point of law." 39(c). Rule 39(c) lists five po5Siblegrounds on which a peti Example4 tioner may seek certiorari review.Probably the most common ·Petitioner alleges ilS grounds for the issuance of the ly asserted grounds for a writ of certiorari are those provided writ the following:The holding in the inst.antcase and by Ruic 39(c)(4),conflict with a prior decision of the United lhe holding in f..xparte Thomas,625 So.2d I 156 (Ala. States Supreme Court. the AlabamaSi ,prcme Court or an 1993). are in conflict ond the issue here is which hold Alabamacourt of appeals.and that providedby Rule 39(c)(3), ing should be followedon this principleof law." a material question of first impression. Examples Thesecond stumbling block for is the requimnent that one "!he Petitionerseeks to have this HonorableCourt m~ew oomplywith Rule39(k). As noted in Jo:.xparle Save OurStrroms, the instant case.as the decisionbelow is in conflictwith supra, noncomplian«with this rule can mean that the supreme U1efollowing decisions of the AlabamaCourt orCriminal court has properlybefo re it fewfacts o r no factsfrom whichit Appeals:Vo u. State, 612 So.2d 1323 (Ala.Cr.App.1992), Cowan v. Stale, 540 So.2d 99 (Ala.Cr.App. 1988),and Davis Example2 v. State.467 So.2d265 (Ala.Cr.App. 1985)." "In its opinion. the appellate court held lhat evidence Allthese aboveexa mples are insufficient becauseRu le 39(c)(4) relating to specificacts of incompetencyof an employee requires either that the conflict be shown by quoting''that part were not admissible to provelhat the employer was on of the opinion or the appropriate court of appeals,an d the part of notice of the employee'sin competence in making subse U1epri or dedsion with whichthe conflict is alleged." or that the quent collectioncal ls, notwithstanding the Petitioner's petition ·•state specifimllyand with parlimlarity wherein such presentationof substantial evidenceof torlious acts of decisionis in conflict:· (Emphasisa dded.)T hus, if the petitioner the employeeinvolving collect ion calls on the does not showconflict by using direct quotes (such as when Petitioner's accounL The Petitioner offered evidence of there is no court of appealsopinion to quote from, (i.e., when It he defendantbank 's I internal memorandum which the court of appealshas affirmed without opinion"),the petition indicatedLhat !the defendantbank] was on notice of the must allege conflict through a detailedd iscussion of the opin employee'sincom petence in handling the Petitioner's ions which the petitioneralleges a re in conflictw ith the holding account. The Petitioner also offeredt estimony of the of the court of appeals,a nd it must describe how U1e holding of Petitioner's mother who was subjected to the employee's that court conflicts wiU1 the earlier opinions. In other words, the lack of training and incompetence in collecting accounts. petition itself, and not its supporting brief.must clearlyd emon '1n Big B. Inc. v. Collingham, 634 So.2d 999 (Ala.1993), strate that a conflict exists. and it musl describethe nature of the Supreme Court held that an employermay be held that conflicL The purposeof the supporting briefis to fully responsible for its employee'sincompetence when that establish the petitioner's legalarguments fo r a reversal,o nce the employer has notice or knowledge,whether presumed or petitioner has demonstrated that the petitionhas some merit. actual, of such incompetence. Evidenceo f specificacts The following statements excerpted from certiorari petitions of alleged i11competency is not admissible to prove that adequatelyallege conn ict as a ground for certiorari review the employeewas negligent in doing the act complained under Rule39(c)(4): of, but is admissible to prove that the employer had Example l notice of the employee's incompetency. "n 1e Courtof CriminalAppeals h as here ruled that when "These statements of the lawand ilie substanceo f the the accusedadm its to drinking twobeers and there is even appellate.courtopinion are in conflict, and the appellate testimony from a witnessat the sceneof the homicidethat court erred in failingto followthe decisionof the Supreme she fearsfo r the safetyof others becausethe defendant had Court on U,esame ppint of law. been drinking, as a matter or lawthe evidenceis insuffi 2. MaterialQuestion of fi'irst Impression - Rule 39(c)(3) cient to raise a reasonabledoubt as to the Petitioner's Numerouspetitions attemp t to raise the grounds set out in intent at the time of the homicide. The ruling of the.Court Rule 39(c)(3)- a material questiono f first impression of of CriminalApp eals in this case is in conflict with the opin Alabamal aw - as a basis for certiorari review.Howe ver, fewpeti ion of that court in Pletcheru. Stale, 6i l So.2d 1010,1011 tions trulya llege material questions of first impression.Many (Ala.Crim.App.J 993),in which iliat court stated tbat where petitions simply allegelhat it is a question of first impression as there is evidenceof intoxication.lh e extent lo which the to wheU1er summary judgmententered unde r Rule56 , accusedis intoxicatedis a jury question. The Fletchercour t Ala.R.Civ.P.. was proper under a set factsnot identicallo the facts ,~ nt on to hold that the trial court invadesU1e prov ince of of any prior case. However,lhat is not the typeof question Rule the jury when it detenuines U1e accused'sd egree of intoxi 39(c)(3)contemp lates. Ifa petitioner couldclaim a materialques cation. Here, the Courtof CriminalAppeals has invadedthe tion of first impressionbased o n a slight variation in the factsof provinceof the jury land the province of) the trial court. his or her case from those of publishedcases, then that ground "Petitioner's requested charge 29 asked Lhetrial court to wouldexist for everycase because each factsi tuation is different instruct the jury that it could consider the fact that the in somedeg ree froma ll others. Rather,Ru le 39(c)(3)an ticipates defendantmay have been under the influence of alcohol true material que,iionso f first impression, issuesn ot yet in determining the defendant's intentions at the time of addre. Th«AJo/J<,mtJ !Auw Hti·i'Jjijj,jj,ffi\,f PfiH Discovery in Criminal Cases: ObtainingEviden ce and InformationNecessary for An Effective Defense By LaJuanaS. Davis he allomt.')'Srepre· stockpileof resources. :rentingWaller This article addresses TMcMlllian.who had the defendant's Impor been convictedor a capi tant right lo discovery. tal murder in In capital cases,Alabama Monroeville, Alabama, has recognizedthat the madea sl.lrlling discovery state has a heightened during poslconviclion duty to providediscover• proceedinit,swhi le listen able materials. Ex 1,ar/e ing lo n Ulpeprovided Monk. 557So.2d 832 lhroughdiscovery (Ala.1989) . This height requests.The casselle ened duty ISdiscussed In tap.? wasa recordedstate the second section of ment orthe kl:)·11= this article. The article lion w,tnl!SSat trial. The also examinesthe state's fim side of lhe cassette continuing dul)Iat trial tapecontained a version to disclosefavorable of Lhewitnes.~ · sliltement material. Included as to the 1>olice,cons istent we.II are special topics with his trial testimony,imp licatingMr. McMillian in the rob lhnt the defense may foceduring the discoverypr ocess:d is bery-murderor a clerk in a dry cleanin~store. The fir,;tportion coveryabout state witnesses.preservation of potentiallyfavor or the t.ipedsU.tement ended, and defen.'lecounsel, occupied able evidence.and expert witness discovery. wilh other work.allowed the tape to continueplaying. It was then that another.pre,.iously undiscl~. interrogationof the General Pri n ci p les of Disc overy key \\itness appearedon the tape. In thlSstatement the Slate's Criminaldefendants are enliUedto any information tht main witnesscomplained that the policew,:re coercing him into state hasthat is exculpatoryor favorableto the defensewhen falselyimplicating Walter McMnllan. In a caseof manyloose the evidenceis material to guilt or punishment. In Brad.I/v. ends and unresol"edquestions. this statement provedto be a Maryland,372 U.S. 83 ( l 963), the United States Su1>reme turning poinL Toobtain the wrongfulconviction of Mr. Court held that the prosecution is required to provide excul McMillian,loc.1 1officia ls had lo suppresssevera l excull) Mfff:l·l'JJf j•jf f fif fH ~ AlabamaWU·~ closureabout potentialjurors, ranging reachednew conclusions by the time of from a ,oenireperron'scontributions to trial or had someconcerns about their the district attorney's rttlection cam conclusion5.1t ls only by discoveringthe paign to indind relationshipswith the substanceo( wh3t the statehas bttn told fl mJiT1.,,, lawenforcement community . See, e.g., by its expertsthat the defensecan reason Ramiolpht•. Com111()11weJ1/lh, 716 S.\\'.2d ably assessthe scientificcase against iL 253(Ky. 1986) (conviction reversed for Failureto discloseexpert information can /LANDTECH. failure to discloseprior juror-prosecutor also result in the defensebeing ambushed REALESTATI SffiLEMOO SYSTEM relationship):Ward v. Commonwealth. at trial by testimonythat requiredexpert "TM Noti1>1t)M().,r Widely U.red" 695 S.W.2d404 (Ky. 198.5)(any relation rebuttal evidence.Thus, it is criticalI.hat ship betweenprospective jurors and the defensereceive discovery lo gain a NowAva ilablefor Windows and DOS prosecutor jusllficschallenge); 1-'a/setta clear picture of the state's forensiccase. o1'HUD 1 Automatic Calculations u. 280 S.E.2d 4ll (Ca. App.1 981) ILis important for attorneys handling su,te, o1'Checb & EscrowAccounting (reversedon grounds of non-disclosure criminal casesto be fully ramiliarwith of Juror afnliationwith law enforcement the discover)/rules and casclaw under "' WordProcessor - SpellCheck agency).Defense counsel should main stale and Federallaw. Counselshould ol' Policla & Commitments tain that this inform.itionabout p0ten reviewRule 16 or the AlabamaRules or "'Deeds & Mortgages tial jurors is critical to the defendant's Criminal Procedure before preparing "' Oat.aBase Report ing rights to an impartialJury and to the discO\oerypleadings illld review the cases "'On-siteTra iningAva ilable exerciseof peremptorystrikes. that providefor discoveryin specificsit "' 1099SRl!llort lng Alabama'sdiscovery rules also ptOllide uations. B)• the Limea capital case ,;' Regul,tiOIIz APR's for discowryof all report.sof any exami reaches trial, mountains of information "'Aoore11ateEscrow nations.tests and experimentsperformed compiled by the state's investigative by the state's expert.s.&>e Rule 16.l(d). forceshave been ama.~ed. Defense Alo.R.Cr.P.(1991). In additionto written counsel must request all orthis infor reports.the defensemust also requestany mation lo ensure a fair trial, and, possi- oral repor1sprovided to the state by bly.a successFuI defense. • e.xpert witnesses.The expertsmay have Tellsthe whole story aboutU.S. Distri ct Judge Frank~1. John son, Jr. and hisyears on th e bench. $1,495.00 Filled1rilb h·11t tmecdotes , storiesof bisgro1Jli11µ 11/)ill northAlt1bm11a, theday-in 1111d d11y -011/dealing (800) withCo11slit11lio11al iss11r1s-many from bisow11 1'ie1111oi11t. 'Ibidas ii bas 11emrbeen told before . 937-2938 · Frank Sikora 's book admirabl )' tells the stol') of JudgeJohnsoo·s courngcousdec isfoos." ft- Jbr/ nllOlhKtlolt ~ LANDTECH r.s.Justice\\ llll;un J . Bn.'fln:tnJr. DATACORPORATION l'\o• nJBJ01)(;6:17, e Ufe (, Opl11lo11s of ,11,,bomn ~ Frn"k dt.Jolmso11Jr. 1402 RovolPalm Beoch Blvd. run ht )'Oursfor onlyszs .;oplus S4 shi1>1>in~ Md handllnA . Bulldlng 200 1111)' one for your.;elF:ind :mother rora Mlsttl [or onl)' S,O11 lu• S•i SKII. Rovol Polm Beoch, Fl 33411 C.:dl t-800·959·324510o,-dcr \\Ith VIS!\ , M:1.11erCanlor A111cri,~tn '"P~ Or mruJa check http:/fwww.landtechdata.com (1>~)"hl1•m ll l:,ck llch l'rc:<.<)10 : lll:1ckllc h Prt.ss, IW. llox SSI,Mo111~<,mcry.ALJ6 101. rtwAhtN,lfflt.tm~·, M i·l'liil·l!·Bl+i&&f& - -·-· - • Where To Turn la A Polt•PanltifeDama,,, Worlds The "Qui Tam" Provisionsof the False ClaimsAct 1 by Pamela11. Bucy _ I n 1996.pnvale citizens who Background broughl lawsuitsunder the False ClaimsAct' won verdictsof $9 million, Sawdustand diseasedmules led to the $2.86 million, $1.6 million, $1.53 mil passageo( the FalseClaims /\cl in 1863. lion, Sl.5 million. $1.46 million,and $1 Unionsoldiers discovered lhal crates of million,among others.' Bycomparison. arms purchasedby the UnionArmy were the largest punilivedamage awards full of sawdust, not muskets." Allegedly amrmed by appellatecourts in Alabama fit mules purchasedby the Armywere in 1996were S3 million,' $1 million,' delivereddiseased, blind. overpricedor $210.000.• $79,598.'$75,000,' $30,000,' had alreadybeen t>urchased(several and Sl0,000." l..argeverdicts are not the times)."There was no federall aw only virtue for plaintiffss uing under the enforcement machinery lo stop corrupt l'alse Claims Act (FCA)for this statute war profiteers:no Federal Bureau or providesa mechanismto help rid the Investigationor InspectorsCcnernl; a federal governmentof fraud and abuse. verysma ll Department of Justice; .and 'l'owin an FCAcase, Lheplaintiff must no investigatorsin U1eW,ir Department proveLhal the defendantknowingly lo monitor contractors.11 Thus. federal nled falseclaims with the federalgov lawmakersturned lo an available emmenL In this respect the FCAmobi resource-private citizens. li1.esthe privatebar lo serve as•private For a varietyof reasons,the FCAwas attorneys general" who pursue "public not particularlyeffecti,oe until 1986." 13), interest for profit.• 11 The FCAalso is a 1986.howe,w , Congresswas ready to typicalwhile collar statute in that it invigoratethe FCAas a mi\iorfraud-light blends criminal and civil law.To prevail ing weapon.High profilefrauds had con on this civil cause of action, the plaintiff ,inced manyin Congresslhal newand musl provt a crime: that the defendant innovativetools were needed lo rombal knowing)>• submitted, or conspiredto fraud.Originally most FCAcases filed $Ubmit.false claims to the federalgov concernedfraud by defensecontractors. ernmrnL• This blendingof civiland In recent )'eal'S, hO\\'e\ll?r,the majorityo( criminal law makes FCAcases complex FCAcases ha,oe im'OM?d fraud by health and procedurallyunique. care pnwiders.In 1996.for example,40 percentof pendingqui lam casesalleged healthcare fraud.while 38 percent allegeddefense fraud. " Pam el• H. Bucy "-"ot, H &cy. -~~cl 1.1w'-"-1,lyol,,_Scnoald tJlw, - ...... u.-su. ... ,.,,_ Cnminol°"""°"-lnSt i...... Qui Tam Provisions - lot - )<11111,-· .,. -""" "'""" calar ame. She is lhe •ulhot o1lour l)C)OQ 111d- orw:leoonwhlto eollot Clffll and ""'1llh """' A. Overview lflk.d P!ol...,, &,cy~ •pcl Ehl 'l·l'iiti·i%11+t+.,,,_AlflM,rhl '·"'''"" effortsagainst fraud upon the govem preparingthe complaint. The govern the qui lam relator may havepreempted menLDuring the 1986r evisionof the ment, bycomparison , may use civil inves or interferedwith ongoing civil or crimi PCAone legislator summed up the ratio tig;itivedemands, which permit broaddis nal governmentinvestig;itions or cases. nale for this dual prosecutingauthority: coveryprior to filinga complaint." Even Also,because the relator is allowedto ''[iJn the faceof sophisticated and wide if relatorsare current employeesof the remainact ive in the caseafter the govern spreadfraud, the Committeebelieves only offenderand thus possessins ide infom1a ment has inte.rvened,there is the poten a coordinated efforto f both the lion about U1efraud, these employees tial for conflictsover strategy.Lastly, i f Governmentand the citizenrywill maybe barredby employmentcontracts the suit is victoriousthe relator pockets decreaset his waveof defraudingpublic from revealingthe informationor remov proceedsthat wouldotherwise go to the funds.'"' Interestingly, unlike other pri ing copies of documents,even regarding government. Interestingly,sometimes the vateattorney general provisions, such as acts of fraud." Anothercommon source of relatorand defendanttea m up against the RICO," the FCAdoes not require the pri relators, attorneyswho obtain informa- government.I n UnitedStales ex rel vate plaintiff to show any injury to the l TheAloboma '-'1wYi 7 MU·i'iiM·li·f f,ffiifiE milling lhe falseclaims the court may Covernment AccountingOffice reports, knowledgefrom the publicdisclosure of reducethe relator's share of the recovery hearings. audits or investigations:and, the fact.sunderlying the action." United "lo the extent the court considersappro the news media. 1\eo major questions Stalesex rd. SmllT'i t &'Clmt" demon. priate."" I( the relnloris convicted• or have arisen regarding the public disclo strates this approach.The court found criminalconduct ari! ing from his or her sure issue: {1 1when is the qui lam that the relatorw.is not jurisdictionally role in the violation." the relalor is dis complaint based upon the public disclo bam:d from bringinghis qui lam lawsuit missedfrom the lawsuitand uwves sure, and (2) must the allegations or even though m.myof the factsalleged in noneof the teCO\ Ef+Ei·i'i Bhiilil+fM Tlt.fMJbamtJ/.qutg4Y backgroundlnformntion which enables issueand concludedthal in order to be first-hand knowledge to exposefraud."" him to understllndthe significanceof a publiclydisclo:;ed, "the allegationsor Applyingits reasoning lo the case before moregeneral public disclosure.'' tran.'laCtionsupon whichthe suit is based it, the court found th.11"OHS did not Unlikethe aboo.oecourts, the Second. must have beenaffirmatively disclosed to affirmali\'elydisclose either the exis Third and Tenth cirruits m..-eadopted the public.- tence of thecontents of the Hughes viewsless fa,o0rableto the relator." In Romscyt.>r.the DistrictCourt dis Report; instead DHSsimply placed the Accordingto the Sl•condCircuit. the reJa.. missedthe qui lam actionbrought by report in its investigativefile and tor is jurir.dlctionall>•barred from bring RaJ'TISeyer,a consulllml and then clinical restricted access to~ persons clair ing the ~'CAwhen the qui tom plaintiffs directorof a mental health facilityoperal· voyant enough to specificallyask for allegationsarc "the sameas those that ed by Centul')'I lealthcareCorporation iL"'"As such, the allegationsand trans halve1 been publiclydisclo:;ed ... regard (Centul')').During her eight months of actions In Ramscyer'sf'CA qui tom suit less of wherethe relntor obtainedhis employmentwith Century,Ra mseyer had not been publiclyd isclosed. The information."" In UnitedStates ex rel. obse,vedwidespread noncomplia nce with Tenth Circuit reversedt he l)istrict Doev. JohnDoe Corp .... the Second Medicaidrequirements. Although Court's dismissalor Ramseyer's s uit." Circuitwas faced with a qui tom action Ramseyerconununicated this noncompli institutedby an allorney privyto fraud. anceto the defendants,the defendantsdid 2. "Origina l Source" disco\'eredduring the courseof represen nothing to correct the problemsand con Even If the first prong of the juris tation. The allorney'sclient had been sub tinued to sendnoncomplying claims to dictional bar provision is met and the ject to inveslig;ilionconcerning a defense Medicaid.Def.md.lnts terminated qui tom complaint is found lo be contractscam allegedly undertaken by his Ram:se)-cr'semployment after eight "based upon" publiclydisclosed allega employer.In exchangefor u.~ immunity. months of snvice." tions or transactions. the relalor is not negotiated by the attorney.the client pr More than $1.45 BILLION recovered in the last decade under the False Claim Act - hear how!! In 1996. a few of the top recoveries for indi\,jdunlQui Tnm relators and/or Whistle Blowers include: + $9.000,000 for fraudulent bilhng practices iu healthca re + $2,860,000for inAatedmi litary contracts + $ l,500,000 for improper health care billing TheFalse Claim Act Seminar Friday, Januruy 23, 1998 HEALTHSOUTHConference Cente r-Birmingham.Alabama Learn from nationalexperts John T. Boese, a.uthor of Civil False Claims and Qui ram Actions, RobinWest , Joan Hartman,Pam Bucy and many outstandingA labama attorneys. /~e11isteron the web or call AB/Cl£ at 800-627-65/4 or 205-348-6230(Website: www .AB/CLE.orf!) Ei+Mll·§iMU1!·8l+iM11rt!A111bamalmA~'T information to the governmentbefo re order to prevail, "Doemust prove (i) he suing the federal government qualify as instituting his qui lam action. ... ""' tookacts in furtheranceof a qui lam suit; whistleblowers. Courts havecited two rea The latter view seems preferable. (ii) X Corp. knewof these acts; and (iii) X sons for holding that federal employees Holding that a qui lam relator qualifies Corp. dischargedhim becauseof these cannot invoke the whistleblower provi as an original source only if the relator acts.''111T he court foundthat all but one sions of the FCA:sovere ign immunity and disclosed the informationin the FCA of the acts Doe identifiedas thosehe took preemption. Noting that sovereign immu lawsuit to the entity that publicly dis in furtheranceof a qui tam actionwere, nity'" protects the feder-<11governme nt closed the allegations or transactions, in Pdct,an e.xerciseo f his responsibilities from lawsuits "ifjudgmen t sought would would seem to turn on fortuities that as in-house counsel.Furtherniore, Doe expend itselfon the public treasuryor have nothing to do with a relator's eligi was unableto provethat the Management domain .... ,"'" the courts have permitted bility to bring a lawsuit. Such a holding Committeeof X Corp.was aware of the FCAwhistleb lower actions only when the would also seem to discourage individu one act that he took in furtheranceof the federalgove rnment has unequivocally als from fully investigating the facts qui tam action (secretly copyingand waivedsove reign immunity.'" The courts surrounding possiblefalse claims before removingdocume nts) much less retaliat have reasonedthat because§ 3130(h) they file a qui tam action. for fear that ed againsth im becauseof this act."' does not addressthe sovereignimmunity they may lose the "race to publicize." To qualifyas a whistleblowerunder the issue,m uch less unequivocally waive it, f'CA,the whistleblowerm ust demonstrate the FCAdoes not waivethis immunity.'" Whistleblowers status as an employee,not as an indepen Secondly, the courts note that Congress dent contractor.Godwin v. VisitingNur.5e intendedthe Civil ServiceReforni Act "' to The most commonqui lam relatorsare disgruntled current or formere mploy Assll' " provides guidanceas to what providethe exclusive remedyfor federal ees."• To protectemp loyeesa nd encourage courtswi ll look at to determinel'CA employeeswho suffer retaliation for them to comeforward, Congress included whistleblowerstatus . In Godwin, the whistleblowing and thus preemptsactions court lookedt o the relationship" under § 3730(h)in the 1986Amen dments to the under the FCA.'" the factsand applicablerules of law and FCA.This section provides a cause of action for whistleblowers: not lat! the wayin which the parties Conclusion regardedth is relationship."'" Focusingo n "la)nye mployeewho is discharged, Althougha potentially lucrativecause factorss uch as how much the worker of action,t he qui lam provisionso f the demoted,suspende d, threatened. harassed controlledthe results of her work and or in any other manner discriminated FalseClaims Act are complex.This is for who held the authority to direct how the severalreasons. F irst, both the hybrid against in the terms and conditions of workwou ld be done, the court held that employmentby his or her employer civiVcriminal nature of the Act(esta blish Godwin, a bookkeeper-accountant, was an ing civil liability by proving the commis becauseof lawful acts done by the employeeof the defendant,a Visiting employee... in furtheranceof an action sion of a crime) and U1e dual plaintiffsys NurseAssociation.' " Other factorsto con tem (the government ancVora private under this section. ... !TheEmployee ] is sider are "the skill required,the sourceof entitled to reinstatementwith the same the instrumentalities and tools: the loca seniority status such employeewould tion of the work; the durationof the rela have had but for the discrimination,2 tionship betweenthe parties;whether the times U1eamount of backpay, i nteresl on hiring party has the right to assign addi the backpay, a nd compensationfor any tional projectsto the hired party;the special damagessusta ined as a result of e.xtentof the hired party'sd iscretionover the discrimination, including litigation whenand how long to work;the method costs and reasonable attorneys'fees. ""' of payment;the hired party's role in hir Judicial To prevail on a whistleblowerretaliation ing and paying assistants;whether the claim,an employeemust demonstratea work is part of the regular business of the Building causal link betweenwhistleb loweractivi hiring party; whetherthe hiring party is ties and the discriminatory employment in business: the provision of employee T O U R S action. X Co,p.v. Doe"" demonstratesthis benefits;and the tax treatmentof the 1 requirement.Former in-house counsel hiredparly. "" TheSupreme Court o f (Doe)co unterclaimed under § 3730(h)in Another issue which has arisen in Alabamainv itesyou to tour a suit brought by X Corp.aga inst Doefor whistleblower FCAsuits is whether the the JudicialBu ildinglocated breach of a confidentiality agreement ln whistleblower must file a qui tam his counterclaimDoe alleged that he had action under U1el' CAin order to qualify at 300De xterAvenue in been firedas in-housecounsel in retalia· as a plaintiffin a retaliatory action suit downtownMo ntgomery. tion for Doe's filinga qui tam action under§ 3730(h).Thus far the courts Tours are availableM onday againstX Corp.'" 1'he court dismissedthe have ruled in the employees' favor, throughF riday,8 :30unt il counterclaim, finding that Doefai led to holding that it is not necessaryfor the demonstrate a causalconnectio n between whistleblower to so file."' 4:30 p.m. Toschedu le a tour, his firingand the filing of the qui lam Anothercom mon issue in FCAwhistle call (334) 242-4958or action."' The court explained that in blowercases is whether federalemp loyees TheA!abamaltJlmftl'Mii·i'iih ·li·HFtifif/5M partymay bring the case)complicatt the Endnotes 16. .Jol1nT ec....CM1 False C- ond Ou! T""' - I •5 llwaugh 1-16.1 ~ 19971 proceduralaspects of these cases.Second. Pbrlons ol lnll ...... fllPrinSed..with per· 11 T••l>IY"" AQ...., Ft•ucl. The 1986 Fe!Se much of the lawon the FCA.histoncally - lrml - H llu JG2 HOVIIMORR 1997 CONFERENCE Septe mb er l2 "Pro111oti11gU11ity, Professio11r1/fs111mu/Publi c l111age... A Profile of Today's BarLeadersH Blue c,... & eruoSlilold. 19 F.3d 562 (11111 76, .. ... 1516-17 IOI. Wang. 875 F.2<101 1418. c~ .1D11•>· n d, a:I 1517 102. d. el 1418•20. 53. Spnng1i.idTOrmlnal. 14 f.3d at 653 (quoting 31 78 Id DI 1518. 103. Bec Th.rAJabii,rwUJvw, H /·PJ3i:i;j!·ff+fff\fH - RECENTDECISION S nvDavid 8. Bgml!, Jr. and IVilbur C. Silbenna11 the lawthat a collateralizedcreditor is not Discrimination lawyers should BANKRUPTCY entitledto interest unlas it becomes read this: Bankn1ptcy Court, O\>erseCUl'ed.The Fillh Circuitin its without jury , estimates age Fifth Circuit attempts to find m1ew quoted the portionor §506(b) "to claim at $353 ,804 middle ground on intere s t due the extent that an allowedclaim is natter of lnterco.Btkcy E.D. Mo. (July secured creditors post-petition secured by 1>rop;1rty,the valueof which 22. 1997, Chief Judge Barta),31 13.C.D. In /he mailer o/T-f-1New Orleans ... is greater than the amounl or such 226. The lawsuitwas filedprepetition in limited PIS, 116 ~:Jd790; 1997 U.SJ\ pp. claim, there shall be allow,'tlt o the holder 1988. In June 1991.proof of claim was LE.XIS17180; 31 83.nkr.CL Ott. 114(July of such claim interest on such claim." IL filedby Wittes.In December1991, the 9, 1997).This caseimsol\.'ed the time",om held that section506(b ) can applyonly bilnkrupu:ycourt denied a motion for qucslionof post petitioninterest to a from the date or filingU1rough the confir relierfrom stay.Willes' lawsuilclaimed securedc reditor. F'immcialSecurity mationdale, but that in the application, IL violationof age discriminationunder Assurance(FSA) argued that becausethe is most importantto establish a valuation boU, lhe federal and state laws.11,e bank valueor its collateral(a hotel)was date. ILconcluded that in casesor this ruptcy court denied the claimant's increasingpost -petition, while at I.ht type where,-alue is increasing.or the debt requats o( withdrawalof the refertn«. sametime the obligationto il was decreasingthrough cash collateralpay transfer to the Massachusettsbankruptcy decreasingfrom cash collateralpayment.s. ments,at some point in time. the creditor court, and appointmentor a specialmas at somepoint betweenthe date or its val will ~come over-secured:that it is the ter. Finally,lhe casewas tried before the uation and the dale of conf1I1T1ation. f SA duty or the secured creditor to proveby a bankruptcycourt which found that the becameover secured. IL argued th.alas preponderanceof the evidencethat its claimant had been an excellentemplo)>ee F'SAwas O\>er-collateralized on the confir claimwas O\>ersecUred, lo \\flat extent, from the time he was hired in 1966, h.w mationdate, under §S06(b) it was due andwhen it b..'Calll£°'"rsecured. This ing performedmany responsible func inltrest since the inceptionof the case. flexibleapp1·oach was adoptedby the tions, until he was dischargedin 1986. TI,erif\h Circuitpartia lly agreed,but nol court, but with the ;,dmonitiont hal the The court, after a very length)•o pinion in M lo the inceptiondate. It first discu~d interest could not be paid unlil confirma. which the facts were set out in depth, the determinationof the valuationdate. It lion. ~,en though it wouldbe accruing row,dfor the claimantas follows:back showedthat al the hearingon the confir inttrtst from the lime the claim became payS89,398: lost benefitsSl4.384 : lost mationoi the plan. the originalclaim of 0\-ersccured, but not before.Also. do not pensionbenefits $16.885:liquidated dam $18,424,000had. through post-petition overlookthat the Court held that the ages $120,677.70:pre-judgment interest payments, been reducedto $13,748,055, amount of interest whenadded to the $112,469,a ll for a total of$353,804.60. which was greater than the fair value of amount or the allowedclaim cannot Comment: I have reviewedthis we to the hotel of $13.7million. The bankrupt exceedthe value of lhe collateral. show that although the claimant's cy court held FSAto be an undel'StC\lred creditorand not entitledlo interal due to Comment:The Fifth Circuit has, simi lawyertried everythingpossible to lar to its holding in Rash(later overruled by the U.S.Supreme Court) (As.socCom. Corp.u. l?11sh.1997 WL32123 1. 616-97). Dav id 8. !lll•i{'"-, Wilbur 0. effecteda compromise.The opinion may sm... ffl\8 n Byme, Jr. WblClSibomW\CI meet the same fate as Rash. I lm-r. it De,Ad 8. it,,... .. '" ... Su,wq:•nfirmel does not happen too often that value or .~...... collateralincreases during the pendency ~ol v.lgg,r'S & Cl"oldl. whetehe of a case. Regardless,the question in our bOlhtws undor gtQ.ia:10 -1.t,NB>lty and lhe jurisdiclionis whether the Eleventh ond low ~Alnbamu ,""'11" Mh·i99'hli·Bl+i&i±W Recent Decisions cles stoppedfor routine trafficvio lations? shortenedprison terms for repeatoffe nd (Continued from poge ,16.';J The Court said yesby a seven-to-twovote. ers in violentor drug-relatedcr ime con During a trafficstop, a policeofficer Ricts with federalla w and cannot stand, ordered Wilsonto step out of the car in the United States Supreme Court ruled insteademphasizing the fact-specific which he was a passenger.As Wilsongol May27, 1997 in UnitedStates u. nalure of the reasoriablenessinquiry. out, he droppeda quantity of crack LaBonle. "Congress surelydid not estab lndeed.in rejectinga per se rule verys im cocainewhich the officerthen seized. lish enhancedp enalties for repeatoffend ilar to the one adoptedbelow, the Wilsonsuccessfully m ovedt o suppress ers only to have the U.S. Sentencing SupremeCourt has held that the volun the evidence.The State of Maryland Commission render them a virtual nulli tariness of consent lo se;irchis a question appealed,losing at both the intermediate ty."Justi ce Clarence Thomaswrote the of fact to be determinedfrom all circum· and highestcourt of appealsi n Maryland. majorityop inion for a badly splil court stances.Schendcloth u . Buslomonte,412 The Supreme Court of the United (sixlo three). Justice StephenC. Breyer U.S. 218, 248-249,93 S.Ct 2041.36 L. Stales granted certiorari, and held that wrote a dissentj oined by Justice Stevens Ed.2d 854 {l9i 3). The Ohio Supreme a police officer may,wilhoul probable and Justice Ginsburg. Court erred in holdingotherwise. It cause to stop or detain the passenger Justice Thomasobserved lhaL "federal wouldbe "unrealistic to require the police but merely to ensure the officer·sow n law Instructs the panelto require sen lo alwaysinf orm the detainees that they safety,or der passengersin a lawfully tences 'at or ne;,r the ma.~jmumte rm are free to go beforea consent lo search stoppedcar to exit Lhevehicle pending authorized' by lawfor career offenders may be deemedvo luntary." completion of Lhestop. convicted of violent or drug-related felonies."Other federallaws prov ide Police may order passengers Sentencing guidelines longer maximumsentences fo r three to exit during traffic stop reduced federal sentences time offenders. Since 1994, U1e Norylandu . Wilson,No. 95-1268, cannot stand Commission had sought to avoid"u nwar _U .S.~ 117S.Ct 882 (Febniary17, U.S. u. La&mte, No. 95-1726, ranteddouble.counting " by tellingj udges 1997).Ma y police officers orderpassen _U.S._(May l 997).A UnitedStales not to include U1elonge r maximum sen gers,as well as drivers, to get oul of vehi- Sentencing Commissionpolicy that tence provision in their calculations. • Letters to the Editor hank youfor Thomas L Meth vin's~ellent alliclein ll1e July 19S7 enjoyedreading Michael A. Kinland's aiticle·civi lianRepresenmtion of Tissue(" Alabama'sPoverty Industry") . In importantways. one could do Ithe Milim,y Client" [September 1997) and IOtlld n 10 be very fnformatMI . a ·seatthand repla~; pulling"Texas· m lieu of ·Alabama." and the arti Asa JudgeAdvoeare in 1h11 Alabama Army National Guam. Ido feel that 1he clewould fit the toneSlllr S1a1e fust as wellas theHean of orx,e . fOIIO'Ningcommen t shouldbe made. Inboth Texas and Alabama. recem daia showed the poveny me 10be Anyauorney who has not practiced law In1he area of m 1li1aryjustioe 17Aperceni of thepopulation (Srarisrical Absrrac1 of theUni1ed States- slioold carefullyconsidll! whethll! he should und ertakerepresenlllllon ofa 19951. Since1980, this represe111ed an lmp1ovement forAlabama from militarycliem who is chargedwith an offense under the Uoifoon Code ol 21.2perceni. and a worseninglo, Teras from 15 .7 pe«:enL In both M1lllll,yJus1ice. Although LTC Kirtland , whoapparently ,snot a cenified Alabamaand Texas. 1he majority of poorpersons are wooongpeople . The JudgeAdvocate. suggested the use of 1he milim,y defense attorney as a maximumcash assis1ance fOl a mo1herand IWO child1en under 1he sourceof lnf0d1118t 1 W/,HF/·£ijif ,jf;lfifH Tht!Alobomol.aWJICr ,JI UNITEDSTAT.ES SU11ementof Ownership, NanagMtent.en d Clrculo.tlon ..,,.. ., __ i...rr, ,., "-:-:"_-:--- POST& J.ERVICE,. ~e.,»USIC~ - • ...... ltt7 ni...... _ ...... , .... • -~~ ...... -~- ..... lo- ..._ ,,_.._ "'""'- .... - ·-- ·--•b_ ~__ I, 1-ld,I,~ Octokt I, lr, 1 ,;,----- ...... ·~- .._...._, H,7» ·- -U,400- 1t- • •11 J•-"7, Jlueh, "'"1, J,o\7, k,-. 11.)1 •OU ... , --t• ..---~,,.,-- t. • .._,., ..,.,... ,, •I ,1'-<'t"" C• .,_ ... N ·-f,:0: • ll •tMu .... fllS.."-'-"--e--- ,.c...--.-·----,-,.-,jSW-. ,. __ ,,,.~ _ .... 0..- ...... ,...... U•"'-- S't.• h .. , "° 'IA-fU .. ...,.,, • • ) D,ut ...... _ 1111'1111•~-.._.....,_,..._,_,.,.... __.,...... , U,)00 11,JU .t::r~,!.!~!...- .. --()>4> tn-nn ....-,...,_,...,__ --hio...___ ,,_, 11,)00 U,U.) .U...0- k•U .. , ,,.._,_..,,_,.,,,...... ffffl """""'-' Papantonio ~»plains how neither Clarence Darrow nor Atticus Finch resembled d1e single-dimensional, linear-thinking attorney that seems ro be almost cliche and epidemic in the '90s. They were not abridged versions of lawyers. Their endless efforrto understand and appreciate che world outside the four walls of their offices provided balance co their lives. Order Today: 1-800.577·9499 They both workoo hard Only $24.9:Splu s $3.00 S&R co acquire a cypeof 1Ad TheAlabama l.atL'!/4."' Fi/·f'jjjj,jff£ffffj:fH OPINIONS OF THE GENERALC OUNSEL By J. Anthony Mclain , general counsel Question : the Discipllnary Commission established "I nm seeking :tn ethics opinion from the followinggu idelines in Fonnal the Alabama State Bar Association Opinion 84-91. regarding the retenrion, storage, ac1ddis TI1ean swers 10 1he above questions posing or closed legal files. depend on 1hespecific n:nure or d,c "My law rinn is quickly depicting its ins1mmen1s contained in the Files and the in-house storage capacity. I have been parricular circumstances in a given factual asked to review methods or data storage situation. For that rea-5011, 1he file should and retrieval such as microfilm. off-site be examined and the co11ten~~segreg med storage. nnd electronic scanning.Before in die followingc ategories: (I) exploring these options. I am rcque.~ting Documentsthat are cletirly 1he propeny or your assistance in fonmtlating a reason the client and may be of some in1rinsic able plan that complies with all applica value, whetherdel ivered 10 Ll1c lawyer by ble rules and statutes. 1hec lient or prepared by 1he lawyer for "I runa,vare or the requirement10 the client. such as wills. deeds, e1c.: (2) retain a client's flle for six years after the documentsw hich have been delivered 10 Retention, case has reached its conclusion. Row the lawyer by the client and which 1he may Ll1e file be stored? Must the files client would 11onnallyexpec t to be remain in "hard copy' fonn or may it be returned to him: (3) documemsfrom any Storageand transcribed to anolher medium? Please source which may be of some fumre idcmify all statutes, rules of conduct value to the client becau,;e of some fu1ure relating to Ll1is process. and any other developmem that may or may not muteri Destructionof ethics opinions. ali1.e:and (4) documemswh ich fall in "Once a file is closcd1 may cerHtin neither of 1he above categories. ClientFiles po11ionsof tl1efile be re1umed 10 1he Documentswhi ch full in10 cmego,y I clien1? What is :tn anon,ey's obligation should be retained for an inclefinile period rcg:uding the ponion of the file remrned of time or preferably should be recorded to the client? After 1hesix-year interval. or deposited with a coun. Documents what is the appropriate me1hodo r dis falling into cntegories 2 and 3 should be posing of a clien1·sfile?" retained for a reasonable period of time al the end of which reasonnblc11 ucmpts Discussion : should be made 10 contact die client and A lawyer does no1have a general duty to deliver the documents to him or her. preserve all his files penn:memly. Wilh regard to lime. lhcre is no specific However, clients and fonner clientsreason period that consti1u1es "reasonable" Lime. ablyexpec t from !heir lawyer that valuable 11depends on the nature of the documcms and useful infom1a1ion in d,e client's file. in 1he file and 1he anendalll circum and nor 01hcrwise readily available1 0 the s1ances. Since lhe ftlc is tlte propeny of client. will not be prematurely and care the client it theoreticallymay be immedi lessly destroyed. ABA Committeeo n ately re1umed1 0 d1ec lient when 1he legal ELllic.~and Professional Responsibility. in mutter for which Ll1ecli ent is being repre Fom11~Opinion 13384( Mareh 14, 1977). sented is concluded. For a variety or rea While there are no specific rules in the sons. lawyersand law finns usually main J . Anthony Mc La in Al11bama Rules of Professional Conduc1 tain clienl files for some period of 1jme regarding tl1ele ngth or time a lawyer is ranging from a fe"' years to pcnnanent required 10 retain a closed fiJe or the dis· retention. The length of time is more a position of 1hatfdc after a lapse or lime, maner of the lawyer or firm's policy M!+M'i·l'iifl ,M·Bl+E r,,,AJ4f>omaui4Lvrr n11hcrlhllll nny cx1emnllygencrn1ed sitioo. First. the client should be informed nc111typc (c:ucgory l l documenlSand 11.'qUll'Cmcnt. In ~1ablisbing Ibis policy, ii of the disposal plllns and given the oppor· recordsarc nocdestro)-ed. Third. on index wouldnoc he unre.1SOOablefor 1hclawyer !unity of being providedthe file or con Attorneys: Buy Extras for Your Staffl Members $25 each 1 TO 5 COPIES $20 each 6 OR MORE COPIES Non-members- $60 each ORDERS M UST BE PRE-PAID Mail d,eck to: Alabama Bar Directory • P.O . Box 4156 • Mon~ gome ry , AL 36 101 @].@l nwAJab.Jrn,,IAIY,WM 1·1'1 5'!11 4·11+1Ei+E DISCIPLINARYN OTICE Disability • Florence attorney Mark Anthony Sanderson was trans ferred to disability inactive status pursuant to Rule 27(c). Notice Alabama Rules of Disciplinary Procedure, effective August l . 1997. (Rule 27(c); Pet. 97-08) Notice is hereby given to Charles Timothy Koch • On August 7, 1997, lhe Disciplinary Board of U1eAlabama State Bar placed Huntsville lawyer Lance Kuykendallon who rracticed law in Mobile,Alabama and whose disability inactive status pursuant to Rule 27 of lhe Rules of whereabouts are unknown, that pursuant to an order DisciplinaryProc edure. IRul e 27(c); Pel. No. 97-0071 lo show cause of the Disciplinary Commission of the Suspension AlabamaState Bar, dated June 25, 1997, he has 60 • On August26, 1997. the AlabamaSup reme Court suspended days from the date of Ltlis publication (November15 , BeatriceE. Oliverfrom the practiceof ~,wf or a periodo r 91 1997) to come into compliancewith the Mandatory days effecthoethat same date. Oliverhad been previouslyfou nd guilty of violating Rules l.4(a). 1.1S(c) , and 8.4(cl or the Rules Continuing Legal Educalion requirements for 1996. or Professional Conduct by the DisciplinaryBoard of the NoncompliancewiU1 U1e MCLE requirements shall AlabamaSrate Bar. Oliver currentlyresides in the State of Texas.Suspensions in excessof 90 daysrequire a lawyer Lo result in a suspension or his license. (CLE97-08) petition for reinstatement to activestatus. lASBNo. 95-1811 • Notice is hereby given to Charles Rae Allen, Jr. who practiced law in Alabaster,A labama and whose where Why6,000 abouts are unknown, that pursuant to an order to show cause of the Disciplinary Commission of the Lawyersuse AlabamaState Bar. dated June 25, 1997. he has 60 Chap7•• 13 days from lhe date of this publication (November 15, 1997) to come into compliance with the.Mandatory * Best TypcSet look m Bankruptcy Forms Continuing L!lgal Education requirements for 1996. * Fastest, friendliest softwnre * ·n,e Ollly software with built-m hw,lligcm Help. Noncompliancewith the MCLErequirements shall * Auto111:,1ic Pl:1n Drafting. 54 custom result in a suspension of his license. (CLE97-02] plans 10 sotisfy all districts. * l'illng check-lis1s. client qucst,onna I Mfi·i{i·\'fij Hi;if t'F TJ;tt;IJ11hc1rmtJ.au'p# CODEOF 1975 labama lawyers are now realizing Whileboth of the bids were less than the the benefits of competition in the prior contract, the LawyersCoope111tive A legal publishing business.The ben Publishing Company bid wassigni ficantly efits have come at t he cost of some clarity. lower than lhe bid from Michie. however. This article is lo c::larirythe con Confusionarises beca use now two codes fusion regarding the publication of th e are being published. Il was believed Lhat, due Codeof Alabama1975 and to inform code lo marketsize and olher economicfactors. i f users of lhe ramificalic,nso f using differ The MichieCompany did not receivethe con ent versions of the code. tract, it wouldc ease publishingan Alabama The Michie Company published the Code.This did not tum out lo be the case. Codeo f Alabama1975 for many years Michiehas not onl)•con tinued to publisha under a series of contrads with the state. supplemmt andrtpl acement YOlurnesfor its ln 1994.pursuant lo a competitivebid By Jerry L. Bassett prior code,it i.salso publishinga new propri process, a cont111dl o publish the code was etaJy Codeo{ Alabam,1w ith the copyright in entered into with LawyersCooperative their name. PublishingC ompany.The cost savingsover the prior contract were dramatic, with a new set of the code going from $638 to (Conti,wod an pa9<3 731 $295. and ench replacementvolume dropping from $30 to $12. The overall effectof the cost reduction is U1atone can now expect lo spend somewhere betlveen$1,250 and $1,500 less for acquiring and maintaining U1ecode for ten years than Do You Need a Tree Expert? under the prior contract. * Tr ee Va.luatious * Tree Protection • Pestkide Damages • Timber Trespass J erry l . BHM tl * Tree Care * T ree Assessments Jerry L Bawa • lho dUecuJ lhe Alabama State Bar is pleased lo make availab le to individual attorneys , firms and loca l bar associations, at eost on ly, a series of brochures on a variety of legal tol)ics of intelest to the genera l pub lic. Below is a current 1.is1ing of pub lic information brochures available from the Alabama State Bar for distribution by local bar associat ions, under established guidelines. Brochure s L aw As A Career $10.00 per 100 Qty. __ $ ---- ... opportun ities and challenges of a law career today. Lawyers and Legal Fees $1 o.ooper 1oo Qty. $ ___ _ ... a summary of basic information on common legal questions and procedures for the general public Last Will & Testament $ 10.00 per 100 Qt y. __ $ ___ _ .. .covers aspects of estate planning and the Importance of having a will Legal Aspects of Divorce $10.00 per100 Qty. __ $ ____ _ ... offers options and choices involved in divorce Consumer Finance or "Buying on Time" $1 o.ooper 100 Qt y. __ $ ____ _ ... oullines important Gonsiderations and provides advice on financial matters affecting the individual or family Mediation ... Another Method $1 o.ooper 100 Qt y. __ $ __ _ _ for Resolving Disputes ... provides an overview of the mediation process in question.and.answer fom, Acrylic Brochur e Stand $5 .00 each Qt y. $ ____ _ ... individual stand imprinted with individua l, firm or bar association name for use at distribution points. One stand per brochu re is recommended . Name to imprint on stand: ------======Mailing Address Subtota l$ ----- Shipping & Handling$ 5.00 TOTAL$ _ __ _ Please remit CHECKOR MONE\' ORDERMADE PAYABLETO THEALABAMA S.TATEBAR for the amount listed an the TGTAL line and forward it with this order form to: Susan H. Andres, Director of Communications, Alabama State Bar, P.O. Box 67-1, Montgomery, AL 36101, (334) 269-15 I 5 Code of Alabama 1975 (Conlinued from page 37) ) Am1ow1cing the The ~gislature enactsan annual codificationbi ll that incor Child Support ArrearageC alculator poratesand adopts the supplementand replacementvolumes (c)Slcn~ &.oc,k.In c.. ., 1?11· 1997 published by the companyholding the code publishingcontract Accordingly, the annual codification act will adopt and incorporate into the Codeof Alabama1975 the supplement and replacement volumes publishedby LawyersCooperative &.p,.... s.J""-Af.,J. S;,.p4 SIMPLBLOGIC, INC. P. 0 . IJOX 110, Al.I.GOOD,Al.3S013 PublishingCompany (See Act 97-216). While no statute des PIIONG:205 /625-4777 l'AX: 2051274-0178 ignates one version or U1e other as the "official" code, when there is a discrepancy,the version of the annual supplement and replacemenlvolumes the ~gislature has declared as the law is the version published by LawyersCooperative PublishingCompany. This issue is further confusedby U1efact that Michiepub lished an "interim supplement" for the 1997 RegularSession that was compiledwithout the supervisionof the Code Correction Commissioner. As a result, Michie was unable to make most In the September issue of The Alabama lawyer, of the editorial changes the CodeCommissioner made pur "What EveryLawyer Sho uld Know About suant to Section 29-7-S(a), Codeof Alabama 1975,as well as Reaffirmationand Redemptioni n Chapter 7 many section designationsconta ined in the supplement and replacement volumes publishedby LawyersCooperative BankruptcyCases" contained a typographicale rror. Publishing Company.Accordingly , the code sections set forth On page 297, the last sentence in the third paragraph in Michie's interim supplement will be different from what of the right-hand column shoLLldhave read as follows: appears in the supplement and replacementvo lumes prepared "Sears has admitted that it did not file the reaffir by L..1wyersCooperative Pub lishing Company.Michie has mation agreements in 2,733 cases, but there may made an appropriate disclaimer at the front of the 1997 inter have been instances where the debtors were repre im supplement. but the difference in languageand section designationsis yet another source of confusion. sented by counsel during the reaffirmation process f'inally.shortly after the current contract went into effect on and a reaffirmation agreement was signed without the October1 , 1995,the parent companyof l..awyersCooperative debtor's counsel's knowledgeor approval." Publishing Companyacquired West PublishingCompany. The resulting mergedcompany is calledthe West Croup. • >gJ CLEOPPORT UNITIES Thefollou:ing 1i1 -state programshat>e been appointedfor credit bg the Alab0111J1Nandatarv CLE CommiMiOII. However,infor· motion is aooi/ah/efree of charge on Otl(!T 4,500uppro1•cd programs nationwide ide11Ji/ied by location date or Sf}(/Cialtgarea. Con/ad the /t/CLE Commissionoffice al (33,J)269 -1515,or I../J00-354-6154.and a completeClE co/1111d11r111illbe mailed to you. I 14 THE ART or EFFECTIVE NOVEMBER TRYINGTHE WRONGFULDEATH SPEAIUNG POtt LAWYERS CASE IN ALABAMA FEA'l'URINC STEVEN D. STARK 13 Montgomel')I Birmingham ALABAMA'S NEW PUBLIC WORKS HolidayInn Suites Cumberland Instllule for CLE: LAW NationalBusiness Institute CLE credits: 6.0 Birmingham CLE credits:6.0 Cosl: $159 (800) 888·7454 Lorman BusinessCtnter. Inc. (715) 835-8525 CL£ credits: 4.5 24-25 (ilSl 833-39,10 DISABILITY SYlllPOSIU,\f TAX PRACTITIONER SE~nNAR Birmingham Bim1ingham TRYINCTH E WRONGFULDEATH ~·rledrnan& Pennington Auburn University CASE IN ALABAMA CLE credits: 5.5 CLE credits: 12.5 Mobile (205)879-3033 (334) 844-5101 RadissonAdmiral Semmes Hotel National Business lnstitule REAL ESTATE cu: credits: 6.0 Cost: $159 Birmlnghnm DECEMBER (715) 835-8525 WynfreyI lotel Alab.imaBar lnslilL1le for CLE CLE credits:6 .0 1 (205)348-6230 CIVLL PROCEDURE/APPELLATE PIL\CTICE Litigating the Clnss Action Lawsuit Cullman Notice Birmingham VideoPresentation CumberlandInstitute for CLE CumberlandInstitute for CLE The SupremeCourt of CLE credits:6.0 (800) 888-7454 Alabama·srule chanj!econcern (800)888 -7454 2·3 ing lawyers'lrusl accounts 18 TAX PIL\CTITIONER SE~ONAR requiresthat lawyersin Alabama PRE 59 112 DISTRIBUTIONS Bessemer who maintainsuch nccountsdo Bim1lnghnm Auburn University so wiU,banks w hich are willing Delta Life& AnnullyCompa ny CLE crcJits: 12.5 to aulomallCiJlly report overdrafts CLI~credits: 2.0 (334)844 ·5101 on said accounts to the (90I l (i83-1222 3 of Disciplinal')ICom mission the 18 -19 ALABAMARULE S OP EVl:DENCE: Alabani.iStale Bnr.Due Lo the TAX PIL\CTITI ONER SEMINAR A DAY WITH Cfu\RLES GMIBLE mand.1tol')llnnguage of the rule, Florence Huntsville lawyersare encouragedto imme Auburn University CivicCenter diatelytak• the necessarysteps to CLEcredits: 12.5 Alab.1rnallar Institute for CLE (334) 84--\-5101 establishtheir trust or fiducial')' CLE credits:6.0 (205) 348-6230 accountswith banksconsistent 21 with the requirementsof the JURYS ELECTION SALES & USE TAX UPDATE rult. The rule changewas pub Birmingham Montgomel')I lished In full lext in the July 1997 MedicalForum of the Ci"ic Center BusinessCenter of Alabama AlabamaBar Institute for CLE OVALL PublishinJ,1Co mpany.In c. editionof TheA lal><1molAw ger. CLE credits: 6.0 CLE creoils: 6.0 Cost:$160 (205)348 -6230 (800) 252-5297 4 E~tERGlNGTREN DS IN CIVIL Montgomery AI.ABAJ'IIAUP DATE LIABlLIT'I' EmbassySuites Mobile Birmingham Alabama&r lnslilute for CLE Ril.-erfrontConference Cente_r CumberlandInstitute for CLE CLEcredits: 6.0 Alab.1ma&r Institute for CLE CLEcredib: 6.0 (205)348-6230 CLEcredit.s: 6.0 (800)888-7454 (205)348 ·6230 10 ALABAMAUP DATE ALABAMARULE S OF EVIDENCE: ALABAMAI.AllOR AND Huntsville A DAY WITHC HARLESCAf IBLE EMPLOYMENT LAW CivicCenter Birmingham Mobile Alabama Bar Institute for CLE CivicCenter Ramada Resort& ConferenceCenter CLEcredits: 6.0 Alabama Bar lnslllute for cu: NationalBusiness In stitute (205)348-6230 Cl.I, credits: 6.0 CLEc redits: 6.0 Cost:$ 159 (205)348-62,10 (715) 835-8525 15·16 TAXPRA CTITIONERSE MINAR 4-5 Montgomery TAXPRA CTITIONERSE MINAR 11 ALABAMALAUOR ,\ND Auburn University Auburn CLEcredits: 12.5 Auburn University EMPLOYMENTLAW Montgomery (334) 844-5101 CLEcredits : 12.5 GO\~rnor'sI louse (334) 844-5101 NationalBusiness Institute 18 5 CLEcredits: 6.0 Cost:$159 VIDEO REPLAYS BUYERAND SE LLERBEWARE: A (715) 835-8525 Tuscaloo:1a GUIDETO 13UYtNGOR SELLING Alaoom.1Bar Institute for CLE AN ALABJ.\MABUS INESS USING THE ~1EOICALR ECORDS CLEcredit.s: 6.0 Birmingham AS A UTIG/\TIONTOO L: 12os1348-62:io LormanBusiness Center , Inc. THE BASICS & BEYOND CLEcredi ts: 6.0 Birmingham PRACTICALD EFENSE OF om (715)833-39 40 ProfessionalEducation Systems, In c. AND DUI ACCIDENTS CLEcredits: 6.3 Florence ALABAMAUPDATE (715)836-9700 SBI ProfessionalOe\'clopmenl Seminars Montgomery CLEcredits: 6.0 Cost:$150 Alabama13ar Inst itute for CLE ALABAJ'IIAUPDATE (800)826-7681 CLP.credits: 6.0 Birmingham (205)348-6230 HealthSouthCooftrcnce Center 19 AlabamaBar lnslitute for CLE \'fDEO REPLAYS ESTATEPLAl'IINING CLEcredit.s: 6.0 Binningham Birmingham (205)348-6230 MedicalPorum Pickwick AlaoomaBar Institute for CLE AlabamaBar Institute for CLE CLEcredits: 6.0 CLEc redits: 6.0 ALABAflA llULES 01' EVIDENCE: (205)348-6230 A DAYWI TII CHAULES GAJ'ltBLE (205)348-(i230 Mobile EF'F'ECTIVE LEGAL NEGOTIATIONS Riverfront ConferenceCenter SALES & USE TAXUP DATE ANDSE'l'l' LEMENTWITH Birmingham Alabama Bar Institute for CU~ CHARLES CARVER Pickwick CLEcredits: 6.0 Birmingham OVALLPublishing Company. Inc. 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