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ft labama attorneys want coverage where it counts! Many Ill commercial malpra ctice policies contain a penalty-for-refusal to-settle clause. This clause can be used to force an ins ured to accept an offer of settlement or, if rejected, pay the difference between the offer and the ultimate verdict. By contrast , AIM's policy gives its insureds protection and peace of mind. AIM will not settle a case without an insured's consent and will not penalize an insured for refusing sett lement and going to trial. AIM's policy even guarantees its insureds a voice in selecting defense counsel. AIM does what most commercial insurers refuse to do: Serve the best interest of Alabama attorneys. AIM: For the Difference!
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May 1995 Volume 56, Number 3 P1JblilhedMYIK'l 11mosa yoe, (tho June "'8UO 11a b.11 dlrk!cxy odi11on) by the Alabama Stnto BA,. ON THE COVER: P ,0 , Boi 4'158,M ontgomery, Alaban'U.'I36101-4156 , Linn Park and Jefferson County Courthouse Pt,ono (334) 269·1515. Linn r)ark consists or five acres or trees. water fountains, colorful walkways,a nd Robtt1A. Huttaka, __···· - -······-·- ····-Chair& &lite,, nowers. nod wasnamed in honor or Charles Linn, Birmingham's first banker and an s..uo Sliltocl
ALABAMA LAWYERS SERVTNG ALABAMA LAWYERS PRESIDENT'SPAGE
ALABAMASTATE BAR SPONSORS BENCH & BAR CONFERENCE
arch 16, 1995was a momentousday at the Alaba representatives to the meeting. I thin k the enthusiastic ma State Bar headquarters. On that day, the response shows how greatly concerned Alabamalawyers and AlabamaState Bar and the Task Force on Bench judges are about our problems and the challengeswe must & Bar Relations hosted a special Bench & Bar meet. It also shows the greal interest Alabamalawyers and mConference. The purpose of the conference was to bring judge.s have in addressing these problems and in improving together leadersof our in-state bar associationsand represen our judicial system. tatives of the Judges' associations to exchange ideas and In my first "l'residenrs Page",I discussedmy concern with addressissues of judicial electionsand campaignconduct and the increased fragmentationand divisivenessin our bar and other importanl issues affecting our profession and the the fact that I sensed a hunger for a return to unity. I believe administrationof Justice in Alabama.The this desire for unity was manifesteddur meeting was particularly important in ing the Bench & Bar Conference. l was light or the now on-going Third Citiiens' struck by the frank and open discussions Conference on Alabama Stale Courts. it and the consensusof opinions by the par was also very appropriate to this year's ticipants al the conferenceo n most of the theme stressing unity in our bar. issueswe discussed. i had the pleasure of servingas moder The nrst Item on the agenda for discus ator of the conference along with Judge sion was the issue of judicial elections. Jot Phelpswho chairs our Task Force on campaign conduct and campaign financ Bench &: Bar Relationsand is also presi ing. Everyone al the meeting was con dent of the CircuitJudges ' Association. cerned about the damage to the imageof Those attending the conference were the bench and bar contributed lo by cam the presidents and other representatives paign contribution excessesand negati\-e of the Alabama Council of Ju\·enile & campaigns in the partisan election of Family Court Judges; Alabama Circuit judges. Judges Association; Alabama District Some of the representatives favored a Court Judges Association; the Alabama form of merit selection with retention Criminal Defense LawyersAssociatio n; Broox Q, Holmes elections as an option. Others expressed Alabama Defense Lawyers Association; concern with a psure merit election sys- Alabama Lawyers Association; Alabama tem, particul11rly if the selection commit Trial LawyersA ssociation: Alabama District Attorneys Associa tee or commission did not emphnsizefairness an d diversityi n tion; and lhe Task Force on Women in the Profession.A laba the selection process. Everyonea l the meeting felt that some ma State Bar President-ElectJohn Owens,E xecutive Director improvementin the electionor selectionprocess o f judges on Keith Norman, Directorof ProgramsEd Pattersonand Direc both the trial and appellate level is necessaryto avoid prob tor of CommunicationsSusan Andresalso attended the con lems experiencedin the 1994elections. ference. Whiletime did not permil those assembledto "fine tune" a To my knowledgethis is the first time in the history of our specific recommended process for selecting Judges or con bar that we havebrought together representali\u of all of our ducting campaigns, it was the consensus or the conference diverseand specializedgroups in one room to talk about our that mutual problemsand p0ssiblesolutions lo improvethe judi (1) nonpartisan elections of both trial and appellatejudges ciaJ system and our profession.This conferencecan trul)• be is a good first step; calleda ··Summit on the Profession." When we mailed invitations for the conference. we had (2) campaignreform should be undertaken with a focus on some concern aboul the response we might get on atten dance. l was very pleasedtha t every group responded and senl Continued on poge1 34
132 / MAY 1995 THEALABAMA LAWYER BENCH BAR CONFEn.p. • SteueGla.uroth, Alabama Criminal Defunsc IAw1111rs A • (ltfl) Qillf<'rence al/l!l!deesJamt1S Knightand Judge RichardDorrough , AlabamaQiuna1 of Jw~il• and Fami /11Court Jud_qes •Ann /ofc}fahan,Alabama Cira,U JudgesAssociation, (Ind JomesR. Knig/,/,Alabama Trial l.awyersAuociatio11, prepare for the co11fercmco. • Prior to Iha conference,John 1¥.Haley, Alaba ma Trial l,awgorsAssociation, talks with Jud!JI! WIiiiam R. Con/011,Alabama Circuit Court Judges • Over25jud!l'S and lmuyers al/ended/he confID'1!11Ctt,ropms,.illng nine legal Assoc/0//011 associations. • Broox C. 1/olmos,/ell, presidenlof • ...and G«ald Top,uf,Alab'1ma tho AS8.alld JudgeJo.,,7,h D. Pha/ps, Di.,lrlcl Court .ludo-sM THE ALABAMAI.AWYER MAY 1995/ 133 Presi dent's Page mous resolution called for a Third Citizens' Conference on Conlirun,dfrom fJO!I"132 AlabamaCourts. The Third Citizens' Conferenceheld its first meeting at the limiting campaign conlributions and tighter control of Carraway Convention Center in Birmingham on Thursday. campaignconduct: a nd March 23, 1995. A committed group or Alabama citizens, (,J) circuit and state commissionscomposed or la>•me mbers judges, lawyers and leading national experts on the judicial and lawyers,similar to those already e~tablishedin Jef selection process met to discuss the selection of judges in ferson, Mobile, Madisonand Tuscaloosa counties should Alabama,judicial campaign financing and campaign conduct be considered. issues so vital to the life or our professionand the citizens or Alabama. Meaningful discussions were also held on measures to The day-long conference is the first or several meetings improve the image and perception or the profession. lawyer planned to study issues involving the Judicial selection process advertisingand solicitntion and long-range plans or the Alaba with a view toward making recommendations lo the legisla ma State Bar. ture for changes and improvement in the way we select judges This conferencewas a great first step in bringingtogether our in Alabama. legal community to mctl the challenges our professionmust Retired Justice Oscar Adams and former Covernor Albert meeL No other group has a greater ability to inOuence the Brewer are to be commended for selecting a group of out improvementof our judicialsy.stern in this state than the lawyers standing citizens and representatives or the legal profession and judges or Alabama.No other group has a greater duty to from a di~use background.The response to the invitations to societyto improveour systemand the professionthan we do. participate was nearly 100 percent which Indicates the great Finally, it was suggested that further such bench and bar concern among our citizens about judicial elections in Alaba meetings be held, Including a panel discussion format at the ma. ApproximateJy140 participants attended and enthusiasti July annual meeting or the Alabama St;ite B~r open to the callyabsor bed the Informationand materialspresente d, intent total membership. on accomplishingtheir mission. It was evident by the reports I hope that such bench and bar meetings will become a tra of the discussion groups that there is a definite feeling that dition in Alabamabecause the benefits to our professionand some changes are due. to the publicare enormous. The tremendous responsein these conferencesfrom lawyers. judges and citizens from a cross-section or our stale tells me Third Citizens' ConferenceUnderwa)' that we are on our way to solid improvements in our judicial Last December the board of bar commissioners by unani- selecUonprocess. I t's not Just a dream: it's happening. ALABAMA LAWYERS RESEARCH SERVICE Saves You Valuable Time TI1eALRS , n division of The Universityor Alaba.ma Schoolor Law Library, assists the bar with their research needs. An attorneymanager a nd second-and third-yearlaw studentsutili ze the state's largestlaw libraryto lill your researchrtqucsts . Our fee is S25.00 per hour for the rcsean:hand writing scn II MEMORANDA (] \VESTLA \V SEAR CHES PREPARAT ION (] AND MORE Phone : 205-348-0300 Fax: 205-348-llll Box 870383 Tuscaloosa, AL 35487-0383 Fran ParkerTankersley , Manager Th• AIJJbamaLmo}'f'n Reuarch ServiN Is opemted by Th, Unfrerslty of Alabama Scl,oolof Lowand dou 110 1 c11gag•in the octiv, pract/c, of/aw . Information din, minaud by the ALRS does not consti11tt•/ego/ advice . 134 / MAY1995 THE ALABAMALAWYER EXECUTIVEDIRECTOR 'S REPORT A GLANCE AT YOUR ALABAMASTATE BAR Ith the state bar staff lo be featured in the July years with an average of 2.162 lawyers participating in the issue of TheAlabama LAwver. this is a good time bar's ,oariouspractice sections.Three new sections have been to update you on the operationsand programsof added since 1991. They are the Corporate Counsel Section. the AlabamaState Bar. Professional Economicsand Technology Sectionand Disabili· m ties L.awSection. With the addition of these three sections, there are currently 19 sections. Membership AdministrativeLaw Howmuch has the membership Bankruptcyand CommercialLaw grownover the last five years? BusinessTorts and Antitrust Law Thenumber of membershas increasedeach ) THEALABAMA LAWYER MAY1995 / 135 HowIs the bar organized? UnauthorizedPractice of Law The bar operates in six divisions.These six divisionsand LicensingCompliance their staff totals and major responsibilitiesare: 4. Admissions I. Membership DivisionStaff: 2 DivisionStaff: 2 Bar Examination License Fees BoardofBar Examiners SpecialMembership Dues I.awSchool Student Applications Pro HaeVice Admission Characterand Fitness Client Securityfund Fees 5. Communications/Publications Maintenanceof Memberfiles D,ilisionStaff: 2.5 Publicand MemberRe_lations 2. Programsand Activities Public Informationand Education DivisionStaff: 5.5 Member Periodicals(Tho Nabama MCLEProgram Accreditation lawyer and TheAlabama Bar MCLECommission Dlredory) Specialization 6. Administration a11dFin011CI! Boardof LegalSpecialization DivisionStoff: 5.5 Committeesand Task Forces Boardof Bar Commissioners VolunteerLawyers Program Bar Elections Sections AnnualBusine ss Meeting Annual Meeting CLEPr ogram Accounting MembershipB enefit Programs Data Processing LawyerReferral Service Personnel LegislativeMonitorinlt Facilities AlabamaState Bar foundation 3. Centerfor ProfessionalRespo11sibility AlabamaState Bar foundation Board DivisionStaff: 10 of Trustees GeneralCounsel Print Shop EthicsAdvice and Opinions Client Security Fund Claims In the next issue we will cover the bar's funding and fiscal DisciplinaryCommission and Boards operation and feature Individual staff members ano their Discipline responsibilities. • Unauthorized Practice of Law Notices Tammy Pridgen has been running ads in the Huntsvillearea stating, "Avoid the high costs of divorce. If both parties agree, I can prepare lhe paperwork at a very reasonablerate . Call 828·0630." The Office of General Counsel Is trying to determine if Ms. Pridgen is working for a law firm In Alabama. Please notify Bonnie Mainor with the General Counsel'sOffice immediately if TammyPridgen is employedby you or your firm. [UPL 94-34] Marc A. Bivens of Birminghamhas been permanentlyenjoined from the practice of law In Alabama. Law offices in the Tuscaloosal8irmingham/Mobileareas may contact the Office of General Counsel for further informationshould Mr. Bivens apply with your firm as a paralegal or legal assistant. (UPL 94-22] 136 / MAY1995 THE ALABAMALAWYER LEGISLATIVEWRAP-UP By ROBERTl. McCURlEY.JR. n April 18. 1995 the Alaba utilized by coupleswho hope for a brief final divorce decree absent agreement ma Legislatureconvened for period of legal separation while they by the parties. This section recognizes its Regular Session which attempt to reconcile or it can be used that in many instances the parties hope can continue until July 31, by couples who anticipate a long, per lo reconcile and therefore have not m1995. The Law Institute has completed haps even permanent separationbut do attempted lo equitably divide their and presented to the Legislat ure a not want to obtain a divorce for reli property during what Is hoped will be Hevised Article 3 and 4 of the Uniform gious or other reasons. only a brief period of separation. How Commercial Code. see March 1995 Under subsection (a) the court shall ever. lhis section does provide the flexi Alabama lowger, and an Unincorporat enter a legal separation if requestedby bility of al lowlng the couple to agree ed Nonprofit Association law, see one or both of the parties. providedthat that if a reconciliationdoes not occur November 1994 Alabama lawyer. A the jurisdictional requirements for a that the division of property and the third major revision on partnership, dissolution of a marriag, have been alimony provisionwill be continued in which includes Limited LiabilityPart a final decree. nerships. has been completed. In addi Subsection( e) providesthat "the best tion , a commitlee of the Institute interest of the child" standard shall looking al lawsaffecting the familyhas apply if the parties to the legal separa recommendedthe followingfour bills: tion later file for dissolution of their marriage. "Coolln11•0ff Period " Subsection (() provides that if both This bill is designed to mandate a parties consent, property acquired by "cooling-off period". thereby enabling each party subsequent to the legal sepa couples to have an opportunity to con ration will be deemed the sole party of template lhe ramifications of their lhe person acquiringthe property.Like actions prior to obtaining a divorce. wise. if both parties consent, each Undercurrent Alabamalaw there is no spouse may waive all rights of inheri waiting period for couples to obtain a tance subsequent to the the legal sepa divorce. A couple, both of whom reside ration. This section has beeincluded to in Alabama, may now be granted a provide flexibilityto those parties who divorce on the same day on which the desire more economiccertainty when a petition is filed. legalseparation Is anticipatedto extend This bill wouldchange the law so that for a long period of time or when the the court could not issue a final decree parties prefer lo have those matters set until at least 30 days had elapsedfrom met. in so doing, the court musl com tled by consent prior Lo the entry of the the date of the llling of the summons plywith Rule 32 relating to the manda legalseparation. and the complaint in a divorceaction. lOI)• child support guidelines. if Lhe Subsection (g) 1irovides that the cost Subsection (b) of Section J autho couple has children. for legal separation is the same as if a rizes the court during the waiting peri Subsection (b) reiterates that a dissolution of the marriage was od to enter such temporary orders as decree of legal separation does not ter requested. are necessary concerning custody or minate the marital status of the parties. Sections 30-2,30 and -31 relating to support prior to the expiration of the Subsection (c) specifiesthat the terms divorce from bed and board have been wailingperiod. of a legal separationcan be modifiedor repealed. The act will take affect January 1, dissolved only by written consent by The act has a delayedeffective date to 1996.The pul'JlC)sebehind the delayed both parties and ratification by the effectivedate is to give the bench and court or by court order upon proof of a bar ample time to becomeaware of the material change of circumstances. Robe rtL Mc:Curte w, Jr. change. Moreover.the existenceof a legal sepa -., L l.lc:0Jr1ey. JI ration does not bar a party from later II N atacltlt adthe L99al Separation instituting an action for dissolutionof a ~ la w Institute II U1oU"""""ty al This bill is designed lo allow couples marriage. Atat>amaHe recelWJd who are facingmarital discordto have a Subsection (d) contemplateslhal the "" undergOldua"'and viable alternative to immediately terms relallng lo alimonyo r a property lowdog teet lfomthe obtaining a divorce. ll has been drafted settlement in the legal separation will Unlvtl 138/ MAY1995 THE ALABAMALAWYER ABOUT MEMBERS,AMONG FIRMS Robert R. Hembree announces the opening or his office at 2201 Arlingtoo ABOUT MEMBERS relocation or his office to 503 Gunter Avenue, Birmingham, Alabama35205. Avenue, Guntersville, Alabama 35976. Phone (205)930-6900. Da,•id A. McDonald announces the Phone (205)582-0169. opening of his office at 208 S. Warren Richard H. Cater, formerly or Burn Street. Mobile, Alabama3660 2. The mail Robert E, Kirby, Jr., formerly with ham. Klinefelter, Maisey, Jones & Cater, ing address Is l'.O. Box 832, Mobile Lucas, Alvis. Kirby & Wash, announces announces the opening or his office at 36601.Ph one (334) 434-0045. the opening or his officeal 3100 Lorna SouthTrust l3ank Building, 1000Quin Road, Suite 132, Birmingham,Alabama tard Avenue, Anniston, Alabama. The KathrynMcC. Harwoodannounces the 35216.Ph one (205)9 79-1924. mailingaddress is P.O. Box 1059, Annis relocation or her office lo Riverbluff ton 36202.Phone (205)235-1973. Office Park, 2207 River Road, Suite I, Bradley P. R}'tier, formerlyof Wilmer James C. Curenton. Jr., formerly of Tuscaloosa.Alabama 35401. Phone (205) & Shepard,announces the openingoi his Smith & Curenton,announces the open 759-2516. office al JOOJefferson Street, Suite 300, Huntsville, Alabama35801. The mailing ing of his officeal 10I N. Section Street, Michael /\. Kfrtland announces the address is P.O. Box 18095. Huntsville Fairhope,Alab.ima. The mailing address openingor his officeat 312 Montgomery 35804.Phone (205)534-3288. is P.O. Box 1435,Fairhope 36533 . Phone Street, Suite 210, Montgomery,Alaba (334)928-3993. ma. The malling address is P.O. Box S. Alec Spoon announces the reloca 1701.M ontgomery36102-170 1. tion or his omce to 631S. Perry Street, Montgomery,Alabama 36 104. The mail AMONG FIRMS Charles O. Decker, formerly with ing address is P.O. Box 1212. Mont & M. Hardwick, Hause & Segrest, announces gomery36102. PhoM (334)262-0730. Perry Perry announcest hat Jack the opening or his office at 262 W. Main Purser , Jr. has become n member . Street, Suite 2, Dothan, Alabama36303. Eugene A, Beatty announces the Offices are located at l 11 Washington The mailing address is P. 0. Box 5541, Dothan36302. Phone (334)702-2725. DorothyR. Drakeannounces the relo cation or her office to RiverbluffOffice Park, 2207 River Road. Suite I, Tus caloosa, Alabama 3540 I. Phone (205) 758-8488. Kimberly O. Pehl, formerlywith Fehl & Chancey, announces the opening of her offlce al Suite 1015, Bell Building, National 207 Montgomery Street, Montgomery, Court Alabama 36104. The mailing address is Reporting P.O. Box JOJ, Montgomery36101-0 101. Phone (334)269-0890. One of Alaba ma's oldest Coun Reporting Companies Daniel C. Blackbum announces the formationor Daniel C. Blackbum, P.C. FeaJuri11g: Orfices are located al 110 Courthouse Discovery ZX Nationwide Reporting Square, Bny Minette, Alabama 36507. Condensed Depositions ASCD Disks Phone (334) 937-1750. Video Tape Recording AMlCUS ~I. Andrew ~!antler announces the relocationor his officet o 107North Side 252-6205 Square, Hunts1•llle, Alabama 35801. Phone (205) 536-5199. 24 Hour Birmingham Number A. Cregg Lowrey, formerly with the I-800-638-3917 • FAX: 252-6392 district allorney's ofllce, ShelbyCounty, llusln THE AUIBAMALAWYER MAY1995 / 139 Avenue.Montgomery. Alabama 3610 4. Berlco""itz. Leflcovil.s, Isom & Kushn Suite 585. Birmingham.Alabama 35209. Phone(334) 262-7763. er announces that Richard A. Pizitz, Jr. Phone (205)871- 7733. has become a member and Ellen E. Hen McGllnchey, Starr ord & Lang an Gentle, Pi.ckens & La.ndon announce derson has becomean associate.Offices nouncesthat Elena A. Lavoy hasbecome that C. Stt\·en Ball and Emily Vaughn are located at 1600SouthTrust Tower. an associate. Officesare located at 643 Frost have becomeaMOCiates. Offices are Birmingham, Alabama 35203-3204. MagazineStreet, NewOrleans, Louisiana located In the Colonial Bank Building, Phone(205) 328 -0480. 1928 First Avenue, North, Suite 1500. 70130.Phone (504)586-1200 . Lovoyis a Birmingham, Alabama 35203. Phone Leon M. Capouano, Jerome D. Smith, 1987Alabama State Baradmittee. (205) 716-3000. Joseph W. Wa=n and Thomas B. Klin Robert P. Bynon, Jr. announces that ner, formerly or Capouano, Wampold, BeckyA . Blake has joined the firm as an Emond & Vines announce thal Lloyd Prestwood & Sansone, announce the associate. Offices are located nl 2213 w.Gathing s has becomea partner and J. continuation or their practice under a Flint Liddon and Vivian D. Vines are Forestdale Boulevard. Birmingham, new name, Capouano. Smith, Warren& Alabama35214. Phone (205)791-0028. associates. Offices are located at 2200 Klinner. Officesare locatedat 350 Adams SouthTrust Tower, 420 N. 20th Street, Avenue. Montgomery, Alabama36104. Leigh Beasley Simmons and Gilmer P.O. Box 10008.Bi rmingham, Alabama The mailing addressis P.O.Drawer 4689, T. Simmons announce the form.ilionof 35202-0008.Phone (205)324-4000. Montgomery 36103-4689.Phone (334) Simmons cli Simmons. Officesare local· Clark, Scott & Sullivan announces 834-3891. ed al 1163Center Point Parkway,Suite that Jannea S. Rogers , formerly of JOO,Birmingham , Alabama35215. Phone Longshore, Nakamura 6i Quinn an· (205)854- 1800. Daniels, l 140 I MAY1995 THEALABAMA LAWYER Burdine. Collier, Burdine & Long Patrick M. Lamar has becomea member enl, State of Alabama.The firm is locat announces that Roy Edgar Long has and Roy BnJwell has become an associ ed at 57 Adams Avenue, Montgomery, become a partner. Offices are located nl ate. The nrm's name is now Siniard & Alabama361 04-4045. Phone (334) 241• First Pederal Building, 102 S. Court Lamar . The mailing address is P.O. Box 8000. Street. Suite 412. Florence. Alabama 2767, Huntsville,Alab ama 35804.Ph one Milling, Benson. Woodward. Hillyer. 35630.5656.P hone 1205)767-5930. (205)536-0770. Pierson & Miller announces that Jean Cabaniss. Johnston, Gardner, Dumas Braxton W. Ashe, J. Mlchacl Tanner, M, Sweeney has become a partner. & O'Nealannoun ces that Herbert Harold Larry B. Moore and Grant A, Wright, Officesa re located at 909 Poydras Street, West, Jr . has become a partner. Offices formerly of Almon & McAlister , Suite 2300, New Orleans, Louisiana are located in Birmingham and Mobile, announce the formalion o( Ashe, Tan 70112. Phone (504) 569-7000. Sweeney Alabama. ner, Moore & WrighL Officesare located is a 1984Alabama State Bar admittee. in Tuscumbiaand Florence,Alabama. M. Wayne Sabel and Mark Sabel an Edward G. ls aact Bowron, Rudene nounce Lhe formationof Sabel & Sabel. Bradley, Aran t, Rose & White Crowe Oldenburgand Jeffrey L. Luther Offices are located at Hillwood Ofnce announces that F. Keith Covington; announce the formation of Bowron, Center, 2800 Zelda Rood, Suite 100-5. Philip J. Carroll, ill; James S, Christie, Oldenburg & Luther. omcesare located Montgomery. Alabama 36106. Phone Jr.: Sherri Tucker Freeml\11:S tephen K. at AmSouth Center, 63 S. Royal Street, (334)271-2770. Greene: J . David Pugh: Kenneth T. Suitt 609, Mobile, Alabama36602. The Wyatt : Denson N. Franklin, 111; and mailing address is P.O. Box1 003. Mobile Lightfoot. Franklin, White & Lucas J ohn £ . Goodman have become part 36633. Phone (334)433 -8088. announces that Michael L. Bell has ners. Officesa re located In Birmingham become a partner. Offices are localed at and Huntsville, Alabama. Julian B. Brackina nnounces LhalK elly 300 Financial Center, 505 N. 20th Street, A. McGriff has becomean associate. The Birmingham. Alabama 35203. Phone Capell, Howard , Knabe & Cobbs name has been changed lo Brackin & (205)581-0700. announces that W. Holl Speir, ill has McGrlff. Offices are located at 676 S. become a member. and Richard F. Allen McKenzieS treet, Suite 131. Foley,Alaba Tommy H. Siniard announces that has become chief deputy Attorney Cen- ma 36535.Th e mailing addressi s P. 0. Box / ;:; Alabama Bar Institute For Continuing Legal Education 1 ~, Box 870384 • Tuscaloosa, AL 35487 • 1-800-627-6514 1 • di41 . J ( ~ Proudly Presents: ~- -,.... Alabama Business Corporation Law Guide (1995) by J11111CSC. Wi lson.J r. Your Gulde to th e New Alab&IM Business Corpora tions Act Effective Ja nua ry 1. 1995 Topics Include: NAmO,~------Formation or Corporadoos Address:______Corporate Operations M"'1:er; S~re Excbani c; Sale or Assets Chy:______Dissolution Reports & Fees State.zip:______Foreign Corporations Oose Corporation Send Mo _ _ copies 11 SS9.00 pa oopy for• Tolll ofS.__ _ Special Problems & Certaill Tu Coosidm,tl oos Pbooe: l-300-ol7-6S1• or 20S-34&-6230 Forms Included Fu: Complete Form & Fu to 20S-34&- 1072 D Chock enclosed__pa ytblc to The Universityof Alabama 0 VISA D M-=sOud O Discover ACCOWII#______lixpnli,on Om __ _ AulhorizcdS ignamro______ THE Alj\BAMALAWYER MAY 1995/ 14I 998, Foley36536. P hone (334) 943-4040. members, and Patrick C. Cooper, Peter .Lehr. Middlebrooks & Proctor S. Fruin, Cary O. Tynes, Elizabeth C. Phe.lps, Jenkins. Gibson & Fowleran · announces that Albert L. Vreeland, LI Beaube,and James T. Carr haveb ecome and Brent L. Crumpton have become nounces that K. Scott Stapp has become assoclates. a partner. Stephen E. Snow and Ivan 8. shareholders. Orficesare located at 2021 Cooperhave joined the firm as associates. LeonardN. Math. formerly of Trimmi 3rd Avenue, North, Suite 300, Birming ham, Alabama35203. Phone (205) 326· Officesare located at 1201 Greensboro er Law Firm, announces he has joined Avenue, Tuscaloosa, Alabama 35401. the firm of Chambless & Cooner. The 3002. Phone (205) 345-5100. firm's new name is Chambless, Cooner Onnie Davis Dickerson, Ill and C. & Math. Offices are located at 5720 Leitman, Siegal, Payne & Campbell Wray Morse, formerly principal legal CarmichaelRoad , Montgomery,Alabama advisorfor the Birminghamoffice of the announces that Bradley C. Siegal and 36117.Phone (334) 272-2230. Shawn Hill Crook ha,-e become mem• FBI, announce the formation of Dicker bers. Offices are located at 600 N. 20th Sirote & Permull announces that son & Morse. Officesart located at 214 Stnet, Suite 400, Birmingham, Alabama David W. Long and Fem Singer have Lorna Square, Birmingham, Alabama 35203.Phone (205) 251-5900. become shareholders and Michael A. 35216.Phone (205)979-0 I 00. Catalano, Jeffry 8. Cordon, Samuel RaymondP . Fitzpatrick.Jr . and David Mark Hill, Roxane D. Peyser. Sarah Stephen D. ApoUnskyannounces the P. \Yhite,Side,Jr •• formerlyof Johnston, Wright Ruffner. and Laura Morrison formation of Eastman. Stapltlon & Barton. Proctor, Swedlaw & Naff, an Schiele have become associates.Offices Apolinsky. Offices are located at 100 nounce the formation of Whiteside & are located al 2222 Arlington Avenue, Colony Square, 1175 Peachtree Street. Fitzpatrick. Officesare locatedat Farley South, Birmingham, Alabama 35255. Northeast, Suite 404. Atlanta, Georgia Building, 6th Floor, 1929 3rd Avenue, The malling address is P.O. Box 55727, 30361. Phone (404) 876-2208.Ap0linsky North . Birmingham, Alabama 35203. Birmingham 35255-5727. Phone (205) is a 1994Alabama State Bar admitree. Phone (205)320-0555. 933-7111. RaymondD. Waldrop.Jr . and S. Lisa Hubbard, Smith, Mcilwain & B111~ Johnston, Barton, Proctor, Swedlaw Frost announce the dissolution or Smith fielda nnounces that R. CooperS hattuck & Naff anno unces tha t R. Marcus & Waldropan d the formationof Waldrop has become a shareholder. The firm's Givhan, formerly deputy attorney gener & Associates. omces will remain at 108 new name is Hubbard, Smith, Mcilwain. al, State or Alabama and Deputy District Southside Square, Suite A, Huntsville. Brakefield& Shattuck. Ofnces remain at Atto rn ey. Montgo mery, and Josh Alabama 35801.Phone (205)534·8~85. 808 Lurleen Wallace Boulevard, North, Mullins, formerly circuit judge, 10th Tuscaloosa. Alabama. The mailing Judicial Circuit have joined the rirm. W. Donald Bolton, Jr. announces that address is P.O. Box 2427, Tuscaloosa Offices are located at 2900 AmSouth/ Shawn Junkins, former deputy attorney 35403-2427.Phone (205)345-6789. Harbert Plaza, 1901 6th Avenue,North. general, State of Alabama, is now an Birmingham, Alabama 35203-2618. associate. Officesare located at 307 S. Woodall & Maddox announces that Phone (205)458 -9400. McKenzieStreet, Suites 203-206. Foley. William A. Austill and Jeffrey W. Alabama 36535. The mailing address is Parmer, formerlyof Clark & Scolt, have Hand, Arendall, Bedsole, Grea,•es & P.O. Box 259, Foley36536. Phone (334) joined the firm as a shareholders.Offices Johnston announces that J. Burruss 943-3860. are located at Suite IOI, 3821 Loma Riis has become a member and Brooks Road. Birmingham, Alabama 35244. P. Millingand E. Lu~tt Robinson, D Albrittons. Givhan, Clifton & Alver Phone [205)733 -9455. have become associates. Offices are son announces that Julie S. Moody, for located at 3000 First National Bank merly of Cobb & Shealy,has become an Maynanl, Cooper & Cale announces Building, Mobile. Alabama 36601. The associate. Officesare located at I09 Opp that Mme L Drew.Jll),ita ~ruin Lamar mailingaddress is P.O. Box 123, Mobile. Avenue, Andalusia, Alabama 36420. and Randall H. Morrow have become Phone (334) 432-551I. Phone (334 ) 222-3177. • RichardWil son & Associates NOTICE Registered Professional Court Reporters Anyaddress or name changes receivedat the 80 4 S. Perry Street AlabamaState Baraf ter March 30, 1995 Montgomery, Alabama 36104 will not be reflected in the 1995edition of 264-6433 The Alabama Bar Directory. 142/ MAY 1995 TliE AI.Al3AMAL.A\\ 'YER BUILDINGALABAMA'S • COURTHOUSES ELMORE ELMORE COUNTY COURTHOUSE co-By SAMUELA. RUMORE.JR. The following continues a history of Alabama's county courthouses-their -- originsand some of the pe0plewho con tributed to their growth. The Alabama Latvgerplans lo run one county's story in each issue of the magazine. JI you have any photographsof early or pre sent courthouses,please forwardthem to: SamuelA Rumore,Jr .. Miglioniro& Rumore, 1230 Brown Marx Tower, Birmingham,Alabama 35203. ELMORE COUNTY i\-ers ha~ played an impor tant role in the history of Elmore County. 'lwo ri\.-ers. the Coosa and Tallapoosa, O>urlho«uot H'etumpka mjoin in the county to form the Alabama River. Archaeologists believe that By 1714, lhe French sought an outpost dominant member of the Council of nomadicIndians camped in the area, due upriver from Mobile in the territory of Marine who oversawFr ench colonies at to the riversand abundant game, as early the AlabamaIndians. These Indiansy,,ere that lime. as 5000 B.C. And DeSoto's Spaniards an Upper Creek tribe known to the The fort was established as the east were the fiTSlEuropeans to see pr~nt French as the "Alibamons."They influ ernmost outpost on the nank of the day Elmore County when they visited enced the balance of power in the area Louisianacolonies. The French success Indianvillages on the rlver banks around due to their location on the strategic fullymaintained amicablere lations with lhe year 1540. The competition between rivers and trade routes. Their friendship the Indians and hindered British move the French and the British for control of could give the French an upper hand in ment in lhe region. They also profited the rlvus also had a significant impact the Franco-Britishrivalry. from a flourishing trade in deer skins on the areaas they vied for influenceand In July 1717,Lieutenant Vitral de La that were sent downrii.-erto Mobileand tradewith the Indians. Tour led a detachment of soldiers to lhe then on to France. In the 17th century, the French and junction of the two m-ers in present-day The French actually built two forts on British were involved in a woddwide Elmore County. His men built a fort on the site of Fort Toulouse over the years rivalry for colonial possessions. This the large, level peninsula between the and occupiedt he area until 1763.In that rivalry often led lo war. By the early rivers on land high enough to be safe year events on the larger world stage 1700s,France held the colony of Louis from flooding.The fort was locateda few turned against the French. The treaty iana lhal included New Orleans and miles downriverfrom the fall line of the ending the French and Indian War trans Mobile,and Britain had colonies In the CoosaRiver. These river rapidsare found ferred aU French possessionseast of lhe Carolinas, leaving the vut interior of near present-dayWetumpka. The official Mississippi River to the victorious present-dayAlabama and Georgia(Geor name of lhe fort was Fort Toulouse. in Brillsh. The French garrison peaceably gia would not be establishedu a colony honor of Admiral Louis Alexander de turned over ownership to them. It is until 1733)as a target for their competi Bourbon,the Count of Toulouse.He was Interesting to note thal F'ort Toulouse tion. a legillmatedson of Louis XIV, and the was never attacked and never fired its THEAI.ABAMA LAWYER MAY 1995/1 43 guns against a hostile force. Even though the British owned the fort. they never occupiedit. The French had treated the Indians well and some soldiers and French traders had even inler-married with them. Indian loyal ties remained with the French. ll ne~r became necessary for the British to challenge these loyalties and the fort declined into ruins. In 1776.naturalist William Bartram during his travels observed the site of the old fort He wrote. ''This is perhaps one of the most eligible situations for a city in the world. a level plain between the confluxof two majestic ri~rs. • After the American Revolution this territory and the fort site became part of the UnitedStates. The fort attained new significancefol lowing the Creek Indian War. Andrew Jackson came into the area with his Tennesseans in 1813. He defeated the Creek nation at the Batlle of Horseshoe Bend on the TallapoosaRi,oer on March 27. 1814.After the battle, he led his men In 19TIthe AlabamaHistorical Com two Creek Indian words--"'1i" meaning to the site of old Fort Toulouseand sel mission gained possession of the Fort •water"and "tamka" meaning "sound about reconstru cting the fort there. Toulouse-Fort Jackson site. Archaeolo· ing" or "rumbling". It receivedi ts name Plans were made for a chain of forts to gi~I$hav e begun the Lasko f excavating from the shoals of the CoosaRiver near e~lend from Tennessee Into Georgia. the forts. but much excavation and by. Wetumpkais located al the fall line rorl Toulouse was renamed Fort Jack study remain to be done. ll is anticipat· of the Coosaand is the uppermost poinl son by Major GeneralThomas Pinckney ed that they will find a treasure trove o( of navigationon the river. in honor of the victoriousAndrew Jack historical information during future In 1825,the AlabamaLegislature con son. excavations. sidered moving the slate capital from On August 9, 1814,the Creek lndian The first permanent settlers in the Cnhaba to Wetumpka. The vote was War officially ended with the signing of area that would become Elmore County extremely close but the resolution was the Treaty of Fort Jackson.By this treaty were soldiers from Tennessee who defeatedon December12 , 1825by a voteof the Creek nation surrendered almost served under Jackson in the Creek lndi· 31lo 30. The next daythe legislaturevoted half of its land. Significantly.its remain· an War.Other settlers came from Ceor to nameTuscaloosa the newstate aipital Ing lands were c.uto ff from other Indian gia, the Carolinas. and Virginia. As Wetumpka continued to grow and tribes and from tht Spanish to the previously noted, a portion of land prosper. On January 17, 1834,the por· south. The Creeks were isolated and around the Fort Toulouse-PortJackson lion of Wetumpkaon the east side of the would no longer be able lo ally them site and north of LheTallapoosa River Coosa River was formallyincorporated. selves with any other power to becomea was a part of Montgomery County at This portion of the town was in Coosa threat to the UnitedSta les. this time. Most or present-day Elmore County. On February 18.1834, the por Mier the war, regular army troops County west of the Coosa Riwr became tion of Wetumpka on the west side of occupied Fort Jackson. A settlement part of Autauga County which was cre the Coosa River was incorporated. This sprang up nea.rbyand became known as ated in 1818.The largest portion of pre portion of the town was In Autauga Jackson Town. When the Mississippi sent-day Elmore County was east of the County. An act of the legislatureunited Territorial Legislatureest.iblished Mont Coosa River and remained in Creek the two sections into one incorporated gomery County in 1816.Jackson Town Indian hands until the 1832treaty that unit on January 30, 1839.This same act became its first county seal. F'orwhatev transferred all territory of the Creek establisheda city court which continued er reason. the town did not flourish. nation lo the State of Alabama. After In operation until 1844. Also,in 1839the Most newcomerssettled in Montgomery this treaty. much or present-dayElmore legislature placed the state penitentiary to the south or the Wetumpka area to County, including east Wetumpka. al Wetumpka. the north. Court was held in Jackson became part of the newly established Wetumpka could have achievedeven Town until May1 818.After that lime. the CoosaCounty. greater significancein Alabamahistory fort and town were abandoned,and the The town of Wetumpkawas settled as except for two important events that site becamefam1iand. early as 1820.Its name is derived from occurred in the 1830$. The first was the 144 / MAY 1995 THE ALABAMALAWYER decision of DanielPratt not lo locatehis Wetumpka.though not a county seal general. After arriving in Alabamahe industrial comple~al Wetumpka. Pratt at the time. did survive. tlowever.when served in the Alabama legislature in had sought a site for his factorieso n the the fight for the capitalwas lost. many 1821. He died in 1834leaving a number CoosaRive r above Wetumpka.Residents citizens movedaway to Montgomery.A of descendants who becameprominent asked e~orbitant prices for their land number of bufldings were demolished in their own right. Amongthese was a and so Pratt movedon to a newsite that and the buildingmaterials were taken to UnitedStates senator from South Car later became Prattville. The second Montgomeryand used to construct new olina, a treasurer or South Carolina,a event was the financial panic o( 1837. structures in the capital city. secretaryof stale of Alabama.a probate This time of unsettled confidence In 1850when HancockCounty, later judge of MaconCounty, and a membfr caused the company which had begun called WinstonCounty, was established. or the Constitutional Convention of the gradingo f a railroadbed from north Alabamahad 52 counties.No newcoun 1865. It wasprobably due lo the inRu Alabama thr ough Wetumpka to the ties were created for 16}'tars . until the ence of his descendants that the first Ceorgia line lo cease operations. The Reconstruction legislature took office. reconstruction county in Alabama\\'i1$ railroad "-'OUldnot come to Wetumpka From FebruaJ)I15, 1866. until December named for CeneralElmore. The town of until 1878. 30. 1868,13 newcounties came into exis Elmore in Elmore County was named In 1846,the legislatureonce again con tence. The first of these was Elmore for Albert Stanhope Elmore,one of the sideredthe is.~ueo f movingthe Alabama Countyestablished on l'ebruary15, 1866 general'sfive sons by his secondwife. st;1teC;1pital. Since the Indianremoval of out of territory laken from southern The act which created ElmoreCounty the 1830sand the creation of new coun Coosa. westernTallapoosa, eastern Autau made provisions for the election of ties from their territory, the center of ga, and northernMontgomery counties. county officialsand lhe selection of a wealth and population in Alabamahad The newcounty of Elmorewas named county seat by popular vote. The elec shifted to the south and east. Great for Ceneral John Archer Elmore who tion was held on January 14, 1867. As a gl'0\\1htook placealong the Coosa, Tai· came to the Autaugaporti on of Elmore result of this election,· East Wetumpka" lapoosa, and Alabama rh•er systems. County in 1819. tie was a native of \1'1t· wasselected as the countyseat location. Eighttowns made bids for the stale cap1- ginia,a prominentcilizen o( South Car Thus.. al long last, Wetumpkabecame a lal. but the real fight was between olina. having served in the slate legis capital-the capital city or county seal Tuscaloosa,the stale capitalat that lime, lature there, and a Hevolutionary War ofElmore County. Wetumpkaand Montgomery. Bolh Wetumpka and Montgomery wereattrnclive sites for the state capital. Both had more than 3,000 inhabitants. PROfESSiONA{ fNVESTi(iATiVE 5ERViCE5 Both had many citizens inRuential In slate politics. Wetumpka was already OWNEd & MANAGEd By A home lo the stale penitentiaryand was located al the head of navigationabove PRACTiCiNG MEMbER Of THE Mobile.However, unlike Montgomery, Wetumpkahad no railroad. Further, a AIAbAMA STATE BAR crucial factor in the decision was that the businesscommunity of Montgomery promisedto construct a capitol building at no cost to the state. This foresight CIA, iNC. "-'Onthe contesLAfu?r 16 ballots, Mont gomerywas chosen the slate capitaland its prominence in Alabama has been assuredever s ince. COBURN INVESTIGATIVE AGE CY Samuel A. Rumore , Jr. "TflE SURVEILL4NCESPECIALISTS' SlltlllitllA llumo,o Jf is a gr~e~l.htt CO RPORATE OtficES u.,...,sJayol-• °""'"and a,,. 1}12 18TH STREfT SOUTH -~ol ..,_Sctwoll.lw'10 ..._ B iRMi NGHAM, AL }5205 -olN AJaDam&State Bat • 205/9 18-0042 FAX/ 918-0024 FamilyLo w Soc1oon""" s lf'I o,-actleeil"I Blrminohlmw 11i,l ho r.rm ol Mlglionico & Rumor• Ru(MOre 1ervo1111hob ar commi'Mlonlftor the 10th Cwc~t. plACO11...,-nber tovr THEALABAMA u\WYER MAY1995 / 145 In the earlydays of the county, As early as 1941, an effort was court was held In a brick build made to build a branch court ing called Haggerty Hail on house for Elmore County al Tal South Main Street, now called lassee. But because oi war time MontgomeryStreet. The build shortages.nothing could be done. ing had a tavern, barber shop, The movementfor a court in Tal and other private businesseson lasseegained new energy in 1948 the first Roor with a courtroom with the proposal for a SI00,000 and countyoffices on the second brick courthouse. Plans were Roor. again placed on hold. Finally.in The count)• soon needed a 1953.a new city hall and court buildingdedicated exclusively as house were built in Tallassee. a courthouse. On March 27, This building cost $90,000 and 1884, ground was broken for was designed by Montgome ry such a.n edifice.Arthur Marshall architect CarlCooper. Wyatt Con was contractor. The cost of this st ruction Companywas the low brick structure was $15,000.lt bidder.The buildingis ownedby consistedo( two stories and had the Cityof Tallassee. externaliron stairwa~-son either The purposeof locatinga court slde orthe facadethat led up to a in Tallasseewas to allowTallassee second-Roor iron balcony and residents to conveniently try portico. This courthouse sen,-ed small matters without the neces the countywell until the present sity of traveling lo the county facilityopened in 1932. seal At that Lime,the court locat By 1930,when membersof the ed there was knownas the Court Elmore County Commission of CommonP leas. Beforethe pas· decidedthat the countyneeded a sage of u,e new JudicialArticle of new courthouse,they visited six the AlabamaConst itution in 1973, states checking on designs and small claims-type trials took financing. They chose not to place al Tallassee.However, Tal - Issue any bonds. Instead the Markeri,isidcth•<-OUrthouuat11',tumpka las.seewas nevera co-countyseat, county allocated the first and according to Chief Justice $100,000for the projectfrom the county Its basic building materialsare granite SonnyH ornsbyof Tallassee,all trials are generalfund. The balance\\' 146/ MAY 1995 THEALABAMA LAWYER BAR BRIEFS • The Cabaniss. Johnston Scholar ship is awardedto a resident of Alabama for the second )'Car of law school. The scholarshipwill cover tuition and books to a maximumof $5,000.A second place scholarshipof$1,000 will also be award ed al the scholarship committee's dis cretion. F'oran applicationcontac t Tracy Danielat (334) 269-1515.The deadline for applyingfor the 1995-96 school year isJune 16, 1995. • In what was a collaborative com munity effort, the Alabama State Bar and the Alabama Ctnltt for Dispute Reso lut ion hosted 90 Lanier High School faculty and observers for con Oicl resolution and peer mediation training f'ebruary 20 and 21 at state bar offices. GovernorFob James, Jr. proclaimedMay 3, 1995as Alabama'sfirst statewide Staff from the Pence EducationF'oun Legal Assistant/Paralegal Recognition Day. The Proclamationwas co-spon dalion presented the training as a part sored by lhe Legal AssistantSection of the Montgome,;•County Bar Associa of a program arranged by the Alabama tion and the AlabamaAssociation of LegalAssistants. Center for Dispute Resolution and At the informal celebralion at the state capitol on March29, 1995are, left to funded by the Dexter Avenue United right, front row, Teresa Sault, Becky Shipes, Stella Sanford, Lynn Reynolds, Methodist Church. Additional support Cathy Hunter Hollon,and MarilynMashatt. l3ack row, lefi to right, are Michael came from the Montgomery Public Ivey,Ed Patterson.Thomas Methvin. DonnaSims, and Or. GeorgeSchrader. School Systemnnd local YMCA. The program. called ·,Vin/Win", will help the faculty teach students the For more informationon school con arthritis occurred on or after March 10, skills they need to resol,-econflict suc flict resolution and peer mediation pro 1987 has until March 10. 1997 to file cessfully1,ithoul violence.Those skills grams, call the Alabama Center for his or her claim with the U.S.Court of include identifyingand focusingon the Dispute Resolutionat (334)269-0409. Federal Claims. This limitation period problem, attacking the problem rather • Effective March 10, 1995, the fol is an exception to the general llmita than the person, listening with an open Lionsrule that a petitioner must file a mind. treating the person's reelings lowing revisionswere made lo the Va.c cine Injury Table and the Qualifica claim for a vaccine-relatedInjury with with respect, and taking responsibility in 36 months nfter Lhcfirst symptom or for their 01,n actions. Among the tions and Aids to Intcrpretation of the Table. 42 U.S.C. §300aa-l4(a) & (b). manifestation of the injury . See 42 ''fouls" students will learn to avoid are U.S.C. §300aa-16)a). name-calling, blaming, getting even, -Chronic arthritis will be added as - The statute of limitations bars the threats. bad longunge,sarcasm. hitting, an on-Table Injury for the vaccines claims of persons whose first symptom pushing, and making excuses. against rubella (MMR. MR. R). This or manifestation of chronic arthritis In March, Lanier initiated "Drop addition to the Tobie creates the rebut occurred prior to March 10, 1987. 42 Everythingfor Peace", and classeswere table presumption that chronic arthritis U.S.C.§300aa -16(b). suspended for two days lo train all was caused by the MMRvaccines, where J .400 students in conmc:tresolution. A the first symptom or manifestation of -Hypotonic -hyporesponsiveepisode peer mediation program followed. the arthritis OCCUI'$within 42 daysafier (HHE) and Residual seizure disorder where selected students were tYainedto the administration of Lhe MMRvac (RSO) have been deleted as Table act as neutral mediatOI'$between other cines. 42 U.S.C.§300aa-14. injuries for the diphtheria, tetanus and students involved in a dispute. If dis -Because the addition of chYonic pertussis vacclnes. putants agree to participate,the media arthritis may significantly increase the -As a result of the deletions of HHE tors (usually two for each mediation) likelihood thal a petitioners alleging a and RSD.the presumption lhal HHE or help them work out a mutually agree rubella vaccine-related chronic arthritis RSDwas caused by the vaccineswill no able solution to Lhe connict. averting will obtnin compensation. an individual longer exist. and an individual filing a the possibility of violence. alleging that an on-Table chronic petition on or after March 10, 1995and THE ALABAMALAWYER MAY1995/ 147 alleging these injuries, must prove that class and It was taught each morning WIiiiam 0. King, IV-Torts the OTP vaccine was the cause-in-fact during the school year. There we_rea Susan Milner-family Law or the RSOor MME. number or field trips sponsored by the KathyL Marine-Real l'Toperty -The Qualifications and Aids to individual teachers, including a visit to (Housing) Law lnterprctalion of the Vaccine Injury the jail. a visit to Juvenile Court, and a AllisonAnderson-Consumer Law Table ha\-ebeen revised.See 42 U.S.C. § visit to AlicevilleMunicipal Court. 300aa-14(b). Centrally, these revisions The program 1,•asso successful that • Merman J. Russomanno. 1975 amplify and clarify the medical terms the bar association intends to repeat it a Cumberland graduate, has bew named used in the Vaccine Injury Table. The for the 1995-96school year at Picke_ns 1995 Distinguished Alumnus of the revisions lo the Qualifications and Aids Academyand possiblywend the course Year by Cumberland School of Law, lo Interpretations apply lo all petitions offering to public schools. All of the Samford University. He received the tiled on or ofter March 10, 1995. lawyersdo nated their lime and materi award at an alumni brunch March 18. als for the course. Por more Information, contact David Russomanno is a senior partner with Those attorneys participating and the Senor al (30J) 443-2006. the Miami, Florida firm of Floyd, Pear courses they taught included: • During school year 1994-95, six son, Richman. Creer, Weil, Brumbaugh members of the Pickens County Bar John A. Russell,flt - Introduction & Russomanno. I le is a magna cum Auocialion volunteered their time to to Lawand Criminal Lawand laude and Phi Beta Kappa graduate or leach a course at Pickens Academy in Juvenile Justice Rutgers University. While at Cumber Carrollton, Alabama, entitled "Street John Earl Paluzzi-Individual Rights land. he was president of the school's Law". There were 12 students in the and Liberties Student BarAssociation. • POSITION AVAILABLE Alabama State Bar Volunteer Lawyers Program Director The Alabama State Bar has a challenging career opportunity for a highly motivated, dedicated,sel f· starting attorney. This position will coordinatepro bono civil legal services. Duties will include manag· Ing the ASB Volunteer Lawyers Program, recruitment and recognitionof volunteerpr ivate lawyers in the clvil pro bono effort; coordinating pro bono efforts with local bar associations; serving as a resource in developing local pro bono programs; and acting as a clearinghouse for successful pro bono programs around the state and nation. The person sought must have a J.D. degree from an ASA-accreditedl aw school and at least two years experience in the practice of law or other equivalent experience; be sell-motivated and self directed; possess excellent communication skills; possess strong organizational abilities; be willing to undertake regular statewide travel; and be able to work with a wide variety of personalities and groups. The salary Is commensurate with experience, and an excellent fringe benefits program is provided. For consideration, forward the following materials: resume and salary history, INCLUDINGa cover letter explaining backgroundand interest in position, in confidence to: Search Committee Volunteer Lawyers Program P.O. Box 671 Montgomery, AL 36101 Deadlinefor submissioni s June 15, 1995. The Alabama State Bar is an equal opportunity employer. 148 / MAY 1995 THE ALABAMALA WYER PROFILE WARRENBRICKEN LIGHTFOOT orn on August 21, 1938, '1994,he became the firsl president of Lightfootchaired the AdvisoryCommi t Warren Lighlfool grew up the Birmingham Bar Foundation, and tee lo the UnitedStates District Court in Luverne,Alabama. where currently is a member of the Board of for the Northern District of Alabama he graduated from Luverne Trustees of the Alabama Law School from 1988-1990and presentlyis a mem· mHigh School in 1956. He thereafter Foundation. ber of the 11thCircuit's Lawyers Adviso attended The Citadel in Charleston. ry Committee.He servedas co-chair of South Carolina, from 1956-1958, the program committee ror the 11th receivedhis undergraduate degreefrom Circuit Judicial Conferencesof 1994· the Universityor Alabama in 1960, and 1995. graduatedfrom the Universityof Alaba Lightfoot was a charter member of maSchool of Lawin 1964.A memberof Leadership Birmingham (1983-1984) Phi Bela Kappa and Jasons, he also and se""oedon its facultyin 1986.A past served as president or Omicron Delta president of the Birmingham Kiwanis Kappaand Phi DellaPhi legal fraternity Club,he also servedin 1991 as president and as leading articles editor of The of the Civic Club Foundalion, which Alabama law Review. From 1960 to owns the Harbert Center in downtown 1962. Lightfoot was on active duty in Birmingham.Lightfoot was an elder at the UnitedSlates Army.An infantryoffi IndependentPresbyterian Church from cer and paratrooper,he servedas a com 1972-74 and 1978-79,and hasfrequent panycommander from 1961-1962. ly been an adult SundaySchool teacher Followinggraduation from law school there during the last 20years. He is cur· in 1964. Lightfoot practiced law with rcnlly servingas chairman of lndepen Bradley. Arant, Rose & White for 25 Warren Brlcken Lightfoot dent's Boardof T'rustees, and he was a years. until January 15, 1990, when he trustee of the Presbyterian Home for and seven other partners formedLight · Children in Talladega from 1987 to foot, Franklin, While & Lucas. now a He Is a Fellowof the American\Al 1993. 26-lawyer litigation firm in Birming lege o( Trial Lawyersand has been a LighUoot has been married since ham. member of it.s stale committee since 1963to the former RobbieCox of Birm Lightfootwas elected presidentof the 1992. lie also is an Advocate of the ingham. and they have two children: YoungLawyers' Section of the Birming. AmericanBoard of Trial Advocates,is a Warren,Jr., who practices lawwith May. ham Bar in 1969, served on the city memberor the international Association nard, Cooper & Cale in Birmingham, bar's ExecutiveCommittee from 1970to of DefenseCounsel, and has been listed and Ashley,who is a branchmanager for 1972.and was elected president oi the in Best lawyers In Americasince 1983. AmSouthBank in Birmingham. • Birmingham Bar Associationin 1991. He wasJefferson County's sole bar com missioner from 1979 to 1985. was a founding member of the MCLECom · mission in 1982 and served on the AlabamaStale Bar ExecutiveCommittee in 1979. During the firsl six years of MCLE.from 1982to 1988,he gaveover Any address or name changes receivedat the Alabama State 45 presentationsto and on behalfor var ious bar groups, and In recognitionfor Bar after March30, 1995w ill not be reflectedin the those efforts receivedthe AlabamaBar lnslltule's 1988Waller P. CewinAward 1995 edition of The AlabamaBa r Directory. for Outstanding Service to Bench and Bar In Continuing Legal Education.I n THEALABAMA LAWYER MAY1995 / 149 SuperiorEstate Planning Documents: Going The Extra Mile By LeonardWertheimer, ff! ne of the estate planner's such documents becomesvery appar avoidedby designatinga familymem most important jobs is to enL ber as initial trustee, with the corpo provideas much fle.xibili· rate trustee becoming trustee upon ly as possible to antici Who Is The Trustee? the event of the death of the client/ pate the client's per.;onal, A. The gnntor insured. economicand tax changes. The client should never be the and to reOectth e client's desireswhen trustee of an irrevocabletrust which C. Trustre appoint. own succenor the client can no longerexpress them. Is the recipient of gifts from the In addition lo providing for lhe The estate pla1111ermust write today cJienl, since the property transferred appointment of successor trustees in to antici1>aleruture circumstances to the lrust would be included in his the event the primari•trustee cannot and enable another's present wishes estate ror federal estate tax purposes. serveror a ny re1tSon,under appropriate to be fulfilled. Such unforeseeable The Crantor would have retained circumstances the trust instrument changes include personal changes overly-broad powers under Internal could givethe trustee then servingthe such ns marital status, parental Revenue Code Sections 2036 and power to override the appointment issues,financia l successor failure and 2038. contained in the instrument and accompanying pressure from credi appoint his own successor. Consider tors, health-related problems includ 8. A corporate tru,tee the situation where the children are ing alcoholism and drug addiction, If life insuranceIs the primarycor minors when the trust instrument is social and polilical changes . Also pus ol a trust and the client'sobjectn-e signed and cannot be named as unforeseen are revisions of existing, is that a corporatetrustee managethe trustees. Perhaps the client's spouse, and enactment of new, tax measures. trust a. 150 I MAY 1995 THEALABAMA LAWYER siblings (who may have died or ing. Practitionershave been concerned attempt by the IRS to applythe ratio becomeincapacitated), and designate that the reasoning o( that ruling nale of Rev. Rul. 79-353 to trustees one or moreof the childrenas succes wouldbe extendedso that a trust ben and grantors of irre\'ocablelife insur sor trustees. tficiary who possessesa power to re ance trusts. Under the terms of the move a trustee and name a new trust instrument , the corporate O. Pow\'J'to n,mcwe lnutee trustee will be treated as having the trustee possessed all incidentsor own 1. The objective powerso( the trustee. even if the ben· ership in the life insurance policy For a varietyof reasons, the trustee eficiarycannot name himself or her held by the trust. The IRS concluded appointedby the client may not be an self. If the trustee'sl)Ol,·er lo distribute that becauselhe grantor retained the appropriate trustee in future years. trust incomeand principalis not lim righl to remove the trustee , the The trustee or beneficiariesmay have ited by an ascertainab le standard. grantor retained the incidents of own movedto another state. The relation then the bcnenciarywill be treated as ership for purposes o( Internal Rev ship of the trustee to the beneficiaries having a general power of appoint enue CodeSec tion 2042(2). may have changedbecause o( divorce, ment under Internal Revenue Code Ltr. Rul. 8922062Involved the cre marriage or other personal circum Section2041. ation of several irrevocabletrusts by stances. The beneficiariesmay simply the grantor for the benefitor grantor's prefer lo deal with a successortrustee 3. The revilAli.ulion of the daughter and grandchildren.The rul or, within parametersset forth in the problem ing cites Rev.Rul. 79-353. but holds power o( removal provision, to ap Ltr. Rul. 8916032.which cites Rev. that the grantor's reservationof the point another trustee. As a common Rul 79-353. talcesthe position that a powerlo remo\'ethe namedcorporate =mple, a spouseor a descendantmay right given to a trust beneficiary trustee did not c.-iusethe trust to be have been apµointedtrustee bul may other than the grnntor to removethe taxed to the grantor's estate because become divorced from the descen trustee and appoint a successor the discretionary powers of the dant. t'lexibillty(requenUy prescribes trustee results ln the trust beneficiary trustee were su((icienllylimited to an giving Lhebeneiociaries the ability to possessingthe powerof the trustee. .If ascertainablestandard . react lo this typeof situation. the trustee's powers are not limited by a fixed and ascertainablestandard, o\. Recent developments :!. The tax problem the trust beneficiary has a general In £stale of Wall u. Comm'r, I0 1 Rev. Rul. 79-353, 1979-J C.8. 325, powerof appointmentunder Internal T.C. No. 21 (October 12, 1993), the held that a trust grnntor'sretention of Revenue Code Section 204 l and all tax court allowed the grantor of an a powerlo removea corporatetrustee trust assets are includedin the estate irrevocabletrust lo retain the power and appointanother corporatetrustee of the trust benenciary.According to to remove and appoint independent was equivalentto a reservationof the some commentators. the ruling corporatetnJStees withou t adversetax trustee's po"u. Underthe termsoi the makesclear that the attribution of the consequences.even though the trustee trust instrument in question. lhe trustee's discretionarypOWers to the had the power to distribute trust granlorwas treated as havingreserved beneficiary or beneficiaries with a properly pursuant to a nonascert beneficial interests in the property removal power is not troublesome ainablestandard . In a differentfactual under Internal Revenue Code Sec when these powers are limited by a setting. the court In Estate of Vakv. tions 2036(a)(2)and 2038(a)(l). Since fixedand ascertainablestandard. Comm'r, 973 F.2d 1409 (8th Cir. lhe issuance of Rev. Rul. 79- 353, Within six weeks or the issuanceor September I , 1992), held that a praclllloners have crilicized the rul- Llr. Rul. 8916032, l:\~oother rulings, grantor of an irrevocable trust who l,lr . Rul. 8922003 and was also a permissible beneficiary 8922062, were also under a sprinkling provisionexercis· Issued. I.tr. Rul. able in the sole discretion of the 8922003 is an trustee, and who reservedthe right to • ~upenor£Mate • ~ ~ THEALABAMA LAWYER MAY1995 / 151 remo"eany trustee and appointa suc ably poor investment perfor ing lheir powersand responsibilities. cessor independent trustee, had not mance; (iii) lhe removal of all A trust provision~cifically authoriz made an Incompletegift upon lrans current income beneficiaries ing such delegation would encourage fe rring beneficial interests to lhe from the state wherein lhe cor an individualtrustee to avail himself trust. In Llr. Rul. 9303018 (October porateTrustee is licensedLo con or herself of available professional 23, 1992), the power to remove an duct business as a corporate services. independent trustee for cause was Trustee; (iv) unreasonableinat held not Locrea te a general powerof tention to lhe reasonable needs G. Conflict&of lnterut appointment in the grantor of the of the beneficiaries;(v) unrea Sensitivity 10 situations in which a trust. sonablel ack of communications family memberservi ng as executoror between the Trustee and the trustee mayha,-e a conflict of interest 5. PlannlnJ(tec hniques beneficiaries;(vi ) unreasonably can be critical to lhe implementation AlthoughIm abo,-erulings and Rev. inaccurate or unclear transac of the clienrs estate plan. This possi Ruf. 79-353 have been subject to tion statementsor statementsof bility can be clearly shown in the extensivecriticism and may be incor account; (vii)unreasonable co n estate of a person who owns a close rect in their conclusions, a11dal flicts between the corporate ly-held business. When the executor lhough some recent decisions have Trustee and the beneliciaries; or trustee will be a family member been favorableto lhe taxpayer, cau (viii) merger, acquisition or a who is already involvedin the busi tious practitionersshould a\'O ld giving deterioratingfinancial condition ness and/orwho will receivea control a beneficiarythe unrestrictedpower to or the corporateTrustee; or {ix) ling interest in lhe businessunder the both removeand replacelhe trustee. unreasonably high turnover of client's estate plan, manyconOicts can If the client wants a provision that account officers assignedto any arise with other beneficiaries,possibly providesfor removal of lhe trustee, a trust created under lhe trust other children, who are not involved number of optionsare available. instrument. in the business. The executor and a. The trustee's powerto makedis trusteewill control the boardof direc cretionary distributions can be tors, so he can elect himselfas presi limitedby an ascertainablestan E, Oelel{ation among co-trustees dent, and can establishhis own salnry Whe11co-t rustees arc serving, each dard and not exercised ln a and fringe beneJlls. He can control manner that would dischargea may have its own talents and exper· decisionsregarding the declarationo f tise. Perhaps the corporate trustee legal obligation.In such event, dividends, which may be the only the trustee's powerswould not should handle investments. Perhaps a,-ailable\'ehicle to provideincome to constitute a general power of the corporate trustee should be other famlly members who own absolved from responsibilityfor man appointment even if attributed minority interests in the busine~s. In aging the family business. If three to the bcneOciarypossessing the conjunction with effectuating a testa removaland replacementpower. childrenare jointly servingas trustees, mentary clause equalizing distribu· perhaps two of the children should tions among all familymembers , the b. The most conseT\-ativesolution lhird full authority to delegateto lhe executorcan selecta friendlyapprais would be to vest the removal sign checks and performartain min and replacementpowers in dif er who will valuethe businessconser · isterial duties. &stateplanning docu· vatively. ferent Individuals, not empower ments can contain directivesadd ress To avoid the conOicts of Interest ing a close relative of the ben ing this typeo f issue. eficiary (such as his or her which are inherent in vestingcontro l of lhe estateplan in the familymember spouse) to select a replacement f'. Dclt'1 1ion lo corporak agent or trusteebecause of the appearance inheritingtht business,the client may custodian considerlhe followingalternatives: of influence. Frequentlya spouse or other indi c. The power of removal could vidual is designated as trustee. This l. Using one or more disinterested limit the persono r personspos individual may lack the sophistication riduciaries: sessingthe powerof removalto or inclinalion to maintain accurate 2. Appointinga speciallrustee to par exercisinglheir pov,u only upon records, make investment decisions. ticipate In decisions involving •reasonable cause·, which, ac· collect and deposit income, prepare potentialconflict; cording to Ltr. Rul. 9303018, estate and incometax returns, or per supra, m ,,y Include,for example, form many of the responsibilities of a 3. Choosing a committee or trusted the following:(I) inability of the trustee. Allhoughin practice individu persons '"ho must consent before corporateTrustee and the bene als frequentlyappoint corporatefidu certain actionsmay be taken by the ficiaries to agree upon reason ciaries to seT\-eas agent or custodian. actual fiduciary;or able compensation for the generalprincipals of trust lawcontain 4. lnclude a will provision requiring corporateTrustee; (ii) unreason- a prohibitionagainst trustees delegal- lhe fiduciaryto notifyall beneficia- 152 / MAY1995 THEALABAMA LAWYER ries in advance or any conflicts or ited powerto rearrangethe manner in descendants for health, education. interest and perhaps requiring the which the trust assets pass to descen support and maintenanceun til the consent or all other beneficiaries dants. varyingthe ages or distribution youngest child attains age 25 (the before action can be taken_ and perhapsthe percentagesto be dis age al which highe r education tributed lo each child. Because the should be completed). Who are the surviving spouse did not create the • Anyprincipal paid lo a child. or that Beneficiaries? trust and is not the "transferor" for child's descendants.aft.er that child A. Powe,oor nppolnt.mentto include estate tax purposes, this power does attains age 25 is charged to that spouse as bencOcial')I not result in inclusion or Lhe trust child's share upon ultimate distri assets in lhe survivingspo use's estate Frequentlytrusts for lineal descen bution or the trust assets. under lnternnl RevenueCode sections dants do not grant beneficialinterests 2036and 2038. to spouses of lineal descendants. In O. Expense, or guardian some situalions il may be appropriate In selecting a guardian ror minor to grant to a descendantth e powerto II children, a testator should be sensi decide whether a spouse can receive tive to the additional financialburden any beneficial interests upon the • the guardian frequently assumes by death of lhe descendanLThe descen- ' undertakingthe responsibilityof rais dant may recognize lhe fact that the ' ing the testat or's children. The spouse de~nds upon income from ~fill'"-.;,;::-~ guardian may need Lo make an addi- (or ... pr~rau0 lion to his or her current home or lhe trust support and may want to n vf tstat direct that the spouse receive all 11lann1 e move to a new home. There may be ng d0cumen1s additional housekeeping eirpenses. incomefor the balanceof the spouse's requiresa . life, or perhaps until remarriage.The th sens,uv;1yto The cost of Including the testator's descendant may also be granted the e current children in familyvacations could be power to direct that principal be dis c/ ieni• and needsof the substantial. There may be additional tributed lo the spouse. Because a Projection costs incurred in the children's visits the surviving spouse did not cre Of the needs.. with grandparents. Is it appropriate, ate lhe trust and Is not the "trans for example,f or lhe trustee to pay the feror" for estate tax purposes,th is cost of improvingor ,1ddinga room lo pOWerdoes not result in inclusion , I the guardian's home? Such cost or the trust assets in the surviving would inure lo the benefit or the spouse's estate under Internal Rev- guardian as well as the children. enue CodeSections 2036 and 2038. Although an appropriate subject for I discussion betweenthe guardian and 8. Powerlo clulnl(e dl5tributionto the trustee. specific directions in a desce_nclants '• testamentary document expressinga If one spousedies and leavesa trust sensitivityto the financialburden and C. Large age which providesthat Lheremainder be differences among directing lhe trustee lo pay certain dividedamong descendants and paid children expenses eliminates any question out at certain specifiedages. after the How fair is an equal divisionof trust aboul the proprietyor Lheexpe nses. death of the surviving spouse, the assets among children I( the eldest descendants may not receiveany dis child is 28 yearso ld and the youngest E. Contingent mnritnlded uction lribut ions from the trust for many Is 14 years old? The youngest child If a husband preparesa trust for the year$. What happens if the familycir will spend part of his or her inheri benefit of his wifeand funds the trust cumstanceschange? What happens if tance to provide upkeep and mainte with an exisllng policy o( insurance the surviving spouse concludes that nance during minority and will pay on his life. lhe faceamount of the life one child cannot prudently manage for his or her own collegeeducat.ion. insurance will be included in his money and needs an independent The pare_ntshad already paid these estate under Internal Revenue Code trustee for lift? What if one child expenses for the eldest child. One Section 2035 if the husband dies developsa serious illness and needs solution to this problemis to increase within three years of the date of the more than a pro rata share or the trust the share or the youngest child by a insurance transfer. The lrusl should for future support?Whal if one child formula amount intended to provide contain a conlingent marital deduc becomes disabled and would qualify lrue equalization. Anothersolution is tion provision. which would create a for governmentalaid in the absenceof lhe creation of a "pol" trust contain transfer to or for the benefit of the receiving a portion of the trust? The ing Lhefollowing terms: wife whlch qualifies for lhe marital surviving spouse can be granteda lim- • Spray income and principal among deduction,elim inating estate taxes, in THEALABAMA LAWYER MAY1 995/ 153 the event any of the tTust assets are ed in the decedent's estate under estate, Child s·s share will be respon included in the grantor's estate Internal Revenue Code Section 2036 sible for estntc taxes on both ChildA's becauseor an unlimely death. if lhe decedent had not made the gifts and Child B's inheritances.The estate and had retained the property in the taxes will substantially eliminate l)i,o ~ re\'OCabletrust. Estate of Kisling u. Child B's inheritance. This result can UnderAlabama law, a personwho is Comm·r , T.C. Memo. 1993-262. 65 be a>'01dcdif the draftspersondeparts divorced from a decedent or whose T.C.M. (CCH) 2956 (June 15, 1993): from the ordinary, stereotyped and marriage to the decedent has been Estate of Kisling u. Comm'r, 65 TCM common clause allocating all taxes to annulled is not a surviving spouse of No. 262 (1993): Estate of Jolku_/, 96 the residue and instead drafts a clause the decedent for probate purposes. TC 675 (J99l); l.etter Rulings apportioning estate t1lxesamo ng the Code of Alabama (1975) § 43-8-252. 9117003,90)0004, 9010005, 90 15001 beneficiariesof the estate in propor If, after executing a will, the testator is and 9016002.I ( the trust instrument tion to the value of their respective divorced or his marriage is annulled, permits distributions to beneficiaries devises. U1e divorce or annulment revokesany other than the grantor, the result is dispositionor appointment of proper inclusion in the estate. TAM9049002. C. Reciprocal tru, t doctrine ly made by the will to the former If the trustee was only allowed to if reciprocal trusts are created spouse,and revokesany nominationof make distributions to the grantor, the wherebytwo settlors. such as spouses the former spouse's executor, trustee, result appears to be uclusion from or siblings. create trusts , each of or guardian. unless the will expressly the estate. TAM9018004. which names the other settlor as a providesotheT\\"Ue. Code of Alabama Only with an appropriateauthoriza beneficiary and 1s identical in its (1975)§ 43-3-137. tion ean a trustee continue a preexist terms, each stttlor may be construc The aboveAlabama statutes do not ing gift-giving program or otherwise tively treated as the settlor of the apply to non- testamentary disposi make gills to sa\'e estate wes. Lrustof which he is a beneficiary.The tion. such as dispositions under the result of such a construction would U \\'ho pays ~•lair taxt11? terms of inter viuos trusts. ILi s, there be that I.R.C. Sections 2036 and 2036 The estate of decedent for estate fore, important to include in any in/ er a would include in the beneJiciary's tax purposes oficn contains property uiuos l n 1st agreement a provision estate the enti re corpus of a trust accomplishing this same objective. which Is regarded as an asset of the which would not otherw ise be estate for estate Lax purposes but includibie. Application or the ru le which did not belong to the decedent does not require that the trusts are Miscellaneo us as a matter of property law and which created in considerationo f each other .\. \utl,orizalitJn tu m•~ l!ifu does not pass under the terms or the with tax avoidancemotives. Estate of Although a re110Cablemanagement decedent's will. In the absence of a Moreno u. Commissioner. 260 f'.2d trust may appear not to re_quirethe contrary expre~ion of intent by the 389 (8th Cir. 1958):U.S. u. Estate of same sensitivity to flexibility as an person writing the will, Alabamalaw Joseph P. Cram, 395 U.S. 316, 69-1 irrevocableinsunnce trust, this trust requires that estate taxes. including USTC12 ,609 (1969); Rev.Rul. 85-24. becomes irrcllOCableupon the death estate taiccso n property which does l98S-l C.B. 329; and PLR 8717003. or permanent disability or the not belong to the decedent under When drafting trusts in this situation, grantor. One issue which should be state property laws. be paid from his the drafter should be sensitive to lhis addrc.~sedin preparing a revocable or her residuary estate. Code of rule and vary Lhe terms of the two management trust is the continuing .4labamo (1975), Section 40-15-18. trusts to the extent neces.~ryto avoid authority of a trustee lo make gifts for This "default option" under Alabama an argument by the Internal Revenue the granlor. law can significantly distort an estate Service lhal the trusts are reciprocal. In an exception to the effective plan. The residuaryesta te can be sub repeal of Internal Revenue Code Sec stantially depletedby its obligation to O. Unifonn transfers to minors act tion 2035. transfers of property lnter pay estate taxes attributable to non When making lifetime gifts to ests otherwise lnc ludible in a residuary, and perhaps nonprobate. minors, draftpersons should consider decedent's estate under Internal Rev assets. l"or example, the decedent's incorporallng the trust provisions enue Code Stction 2038 are includi· estate may consist or S1.000 ,000 or contained in the Alabama Uniform ble in the decedent's estate if made st0tk in the decedent's corporation, within three years of the date of which 1s specificallyde'l •ised to Child death. Recent developments have A.and S1,000 ,000of marketablesecu i..oor.d V,.. , ..... IN--h~ included in the grossestates of dece rities owned by the decedent and ~·--·"' 0.-.0 Huaor ..,.,.,. ct dents gifts made from revocable payable to Child B under the resid ht~OIV.o-_,,.,.,.._..,.'*"""'"',_ • ., trusts tha t qualify for the gift tax uary clause of the decedent's will. cloQrool'Oln Emory-..,,, n 1m He,s a F<,1- lowOlht -.can COl"Olel T"'"' aoctEsw, annual exclusion on lhe theory lhal Althoughthe decedent's intent is that C.-Ml,•nd · - el tho Aoll l'r"""'1YPro the property would ha\'e been includ- both chi ldren share equally in the baaeand T1\111 S ocuon and T.. Soct""'OI .,. Af3A. 154/ MAY1 995 THEAl.f\BAMA LAWY ER Transfers to Minors Act ("AUTMA''), estate plan will have more Oexibilityif study is progressing toward the Code of Alabama (1975), Section the monetary devisesare expressedin completion or an undergraduate or 35-SA- 1 el. seq., rather than drafting terms of a percentageof the testator's other degree at the rate of a full lrust agreements. The provisions of estate. If the slie o( the estate increas time student; AUTMAessentially create a trust es or decreases in value, the amount which terminates in favorof the child of the devise will be adjusted as well. 2. The child is emplc»·edfull time in at age 21 and allows the trustee The potential inequities caused by an occupation to which the child (referred to In AUTMAas "custodian") monetary devises which constitute a devotesat least 35-40 hours of work to pay or accumulate income or prin disproportionatelyl arge or small por per week or the child is pursuing a cipal for the supl)Ortand education of tion or an estate can be eliminated. career which is socially productive the child. This informal trust is fre on a full-time basis,such as a career quently appropriate for the client's G. BencOdar:\l'swithdr nwal rights as an artist or a musician, to be circumslancci and is more economi Many clients prefer to stagger determined solely by tne trustee in cal than Ihe preparation of trust doc mandatory corpus distTibulions to the trustee's discretion; uments. their children on the theory that it is 3.The child is disabled and such dis wiser to let the child make an early ability prevents him or her from E. Who an "crummoy" mistake with less than all or the prop being a productiveand self-supl)Ort b THE At.AHAMAI.AVNER MAY 1995/ 155 OPINIONSOF THE GENERALCOUNS EL By ROBERTW. NORRIS, gene ral counsel UESTION: NSWER: "Approximatelyten )'eal'S ago, I repr~nted "J" You may ethically represent lhe driver and in lhe presentation of a workmen's compensation owner or the vehicleagainst your former client. claim while she was an employeeof "K's. Inc.", E.. m Alabama.The da im and representation were set a tled with a lump sum consent settlement and medical benefits remained opened. !SCUSS!ON: In 1988, her son nnd daughter were involved in an auto occi Rule 1.9(a) prohlbils subsequent representation dent wherein her daughter, "B", was killed and her son. "C", of a person whose inlcresl5 are materially adverse the driver of the auto, was injured. As a result or this auto col· to the interests or a former client in the same or in lision, ·c.o: and "J.D.". as parents and next friends or each ma substantially related matter. There appears lo be no legal minor child. instituted a suit for personal irtjury damages for relationship lo your prior representation o( Mrs. ·o· ten years their son and for the wrongful death of their daughter. and a ago on a worker's compensationclaim and the present case. ln derivativeclaim for injuries as the parents. reality, Mrs. " D" is only a titular party in the auto accident I have been asked to repr~t the driver of the vehicleand case.Her medicalcondition. pa.sto r present. is not going to be 0\\11U of the vehicleand employero( the dm-er," R", which col in issue. ln the DisciplinaryCommission's view, the matters lidedwith the ,-ehicleoccupied by the minor childrenof the "Os.· are not "substantiallyrelated ." ••• Rule 1.9(b) prohibits your adverse use of any information l reques l an opinion lo rely upon lo make certain my repre violaling to the original representation of Mrs. "D". If your sentation or R, el al., is not an ethical violation. I am asked lo defense in the present case would require lhe adverse use of join this llligatlon as co-counsel with another attorney who any client confidences lhen you should not involveyo urself. If has his office in Montgomery . For this reason . I need a this is not a problem, then you may enter the accident case response as quickly as possibleto permit the other attorney to without concern for ethical connlct wilh your former client. • obtain additional legal assistance. if I am wrong In my belief I can assist him." IR0-91-421 Position Available General Counsel The Alabama State Bar is now aecepting applications by letter with resume from qualified lawyers for the position of general counsel. These applications should be addressed to: General Co unsel Selection Comm ittee P.O. Box 671 Montgo mery , AL 36101 This position requires an experienced lawyer with a strong professional background . Salary commensurate with experience and maturity. 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However, infonnation is available free of charge on over 4,500 approved programs nationw ide identified by location, date, or specialty area. Contact the MCLE Commission office at (334) 269-1515, or I -800-354 -6154, and a complete CLE calendar will be mailed to you. 12-13 19-20 CITYAi\/ 0 COUNTY ENVIRONMENTAL LAW GOVERNMENTS OrangeBeach 3 Wednesday OrangeBeach Alabrurui&r Institute for CLE Alabama for ALABAMA ELDER I.AW &r Institute CLE Credits: 6.0 Birmingham,H olidayInn Redmont Credits: 6.5 (800)627-6514 NationalBusiness Institute. Inc. (800)627-6514 Credits: 6.0 Cost: S138 (715)S35.SS25 HEALTH LAIi'U PDATE Pine Mountain, Georgia,Callawa)' 19-21 Gardens YOUNG LAW\'ERS' SANOESTIN 5 Friday SEMINAR LEGALWR ITING AlabamaBar Institute for cu; Credits: 6.0 SandestinResort Birmingham YoungLawyers' Section. 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(715) 835-8525 Credits: 6.0 Cost: SI38 Credits: 6.0 Cost: $138 (715) 835·8525 (715)835-8525 158/ MAY1995 THE ALABAMA I.AVNER JUNE 1-3 TAX INSTITUTE UnitedStates District Court Orange Beach Alabama Bar Institute for cu: NorthernDistrict of Alabama Credits: 9.0 (800)627 - 6514 TelephoneSystem Change Effective2/21/95 MainClerk 's OfficeNumber-73 1-1700 2-3 DIVORCEON THE BEACH THE MAIN NUMBERIY lL L BE 731-1700 Gul(Shores FOR ALL SECTIONS AND EMPLOYEES. FamilyI.aw Section, AlabamaSta te Bar The followingis a list of extensionsfor each section of the clerk's office.You Credits: 2.5 must dial 731-1700,then enter the 3-digil e~tenslon• Youmay reach a p.1rticu (800)354 -6154 lar individualby dialing 731- 1700and pressing" I", then enter the first three let ters of the lasl name of the person you need to reach. 8-9 SECTION EXTENSION ESTATE PLANNINGFOR FOREST LANDOWNERS AttorneyAdmissi on & Naturalization ...... •...... ••.••. .. •••..... 106 Tuscaloosa,Bryant ConferenceCenter AutomationSy-stems ...... 170 Auburn University BuildingServices ...... 192 Credits: 14.0 Cost: S225 Criminal Docketing ...... 147 (334) 844-5101 Financial ...... JI I Intake & General Information ...... , ...... 120 9 Friday Jury ...... • ....•.....•.....• . • . • .... .115 EVIDENCE MagistrateJudge & CJAMatters ...... 158 Birmingham Personnel ...... 107 AlabamaBar Institute for CLE Procurement ...... 113 Credits: 6.0 (800) 627-6514 CivilDocketing: Judge B:rtension Judge B:rte11slon 20 T1.1esday Acker...... 136 Nelson...... 133 TEN COMMON MISTAKESM ADE Blackburn ...... 137 Pointer ...... 1 31 IN WI LL DRAFT1NG Clemon ...... 14-l Propst ...... 134 BayMinette Cuin...... 140 MDL...... 143/144 BaldwinCounty Bar Association Credits: 1.0 Hancock...... 132 Others ...... 130 (334)928-4400 Lynne ...... 130/139 Courtroom Deputies: 22 Thursday ADMYORKERS' COMPENSATION Judge Extension Judge Bxte11slon airrningham Acker...... 155 Lynne ...... 156 Lorman BusinessCenter, Inc. Blackburn ...... 160 Nelson ...... 153 Credits: 6.0 Cost $135 Clemon ...... 154 Pointer ...... 150 (7)5) 833-3940 Guin...... 157 Propst ...... 152 Hancock...... 151 25-26 PREVENTINGEM PLOYEE Officehours are 8:30A.M. to 4:30 P.M. Mondaythrough Friday.You may date LAWSUITS stamp pleadingsand place them in the drop boxin the lobby from 7:00A.M . to Tuscaloosa,Bryant ConferenceCenter 8:30A.M. and from 4:30 P.M.lo 5:30 P.l>tY ou may reach a deputy clerk for Universityor Alabama EMERGENCYfilings outside of these hours by dialing 731-1700,ext. 130, or Credits: 13.0 Cost: $795 956-8828,o r digital beeper 888-2410. (205)348 -6224 THEALABAMA LAWYER MAY 1995/ 159 Alabama Law Foundation Awards Alabama Law $808,000 in IOLTA Grants Foundation 1995 Grants Lt,.i Aid 10 lhc P By TracyA. Daniel.txtculh't director,Alabama Law Foundation Lcg.,IS.r>ices Corporation IOLTAin come remained constant In AssociationPro BonoProgram are previ olAl.,bom, ...... $240.000 Lc11>IService, oi 1994, allowing lhe Alabama Law Foun ous recipients of IOLTA funds. ·The M,troBirmingham ...... $75,000 dation to award$808,890 in grants to 35 Birmingham &r AssociationVo lunteer Lcpl Scrvfmof North organizations throughout Alabama in Lawyers Program has grown to number C.nlr>IAl.ti.mo _ ...... m.000 March 1995. Interest rales on IOLTA over300 volunteers.necessitating a part. Mobot,Bu Auoo.ltion..____ ..S(S ,000 accounts ceased their decline and time coordinator to efficiently handle AJ.born>SUtc Bu Voluntttr showeda slight increase toward lhe end casereferrals. ln all. OVl!r1,500 Alabama Low)-... Proill>!!I-- -- .Si0.000 B«miog)unlBu of the year. The foundation had been lawyersparticipale in pro bonoprograms _tJon...__, ___ , $25,QOO through acceptingcases referred directly forced to reduce the amount of grants Tolal .._ ..,_,_ .., •• - ... ,.. -,$530.000 awarded each of the past two )'tars, but to them or by voluntarily reporting the was able to award $8,000more in grants number of hours they devote to pro l,awlJb rariu this year than last year. bono efforts. The Grants Committee, chaired by The foundationf\inded t he first meet Aut1upCounty ... - ...... - ...... S2.000 AllanC hason of BayMinette , had to pare ing of the Third Citizen'sConference on llaldwinCounty ... - ...... - ...... $1.500 Choe.. ,, County_ ...... - S3.SOO down $1,336.000 in requests to the the AlabamaState Courts, held in Birm ColbtrtCounl)' 3,500 SSI0,000available for grants. Conse ingham on March 23. 1995. The Citi ('on,cuh County__ , S'\,000 quently, the foundationcould only fund zen's Conference was Jointly called by o.i. Cour,iy S3.tlOO 35 of Lhe 46 requests received. Other the Board of Bar Commissionersof the Elmo,.County .SOI) m1RCl)RRntJtion The foundation is grateful for the will For the secondyear the foundationis RHOUrOrCmttr .$70.000 ingness of these volunteersto undertake providingoperating funds for the Alaba· Al.llwnlPruon Pn,j Mid-YearReports of 1994-95Com mittees & TaskForces hy EdwardM . Patterson, director of programs AlabamaState Bar committees,task forcesand sectionstake /he lead role in many initiatives, education,and informalion , and in fosteringbusiness and socialcon/acts within the legalprofession. Committee and task forceu1ork depends on the effortsof hun dredsof lawyerswho collectivelyoolunteer thousands of non-billablehours. Few practicing attorneys would deny the legalprofes sion is demandingboth in terms of time and workproduction, and that workingnights and weekendsis par for the caurse. That80 percentof /he bar'scurrent 42 committeesand /ask forcesare actiue is significant.This high leuelof uolunteerservice is another hallmarkof the professionalismof the typicalAlabama attorney, as the followingsummaries from the midyearreports indicate: task force was instrumental in organizing a panel discussion Committeeon Accessto LegalServices entitled "LifeAfter Guilt: Educationas a Sentencing Alterna F. LukeColey, Jr., chair tive", presentedat the mid-winter Circuit and District Judges The committee continues to monitor and evaluatedelivery Conference.1\v o court/literacy referral programs, one in the of pro bono services in civil cases to indigent Alabamians Shoals area and the other in Montgomery, developed as a through the Alabama State Bar VolunteerLawyers Program. result of task force interest and involvement, provide model Meeting quarterly, the committee reviewsthe operations of approaches for other communities to adapt to their specific the program and gives direction and support to its director, situations. Task force members are actively working to get MelindaWaters . The Birmingham Bar AssociationVolunteer these programs started in their communities. • LawyersProgram is now fully operational and has become a tremendous success. Severaladd itional local bar associations Editorial Board, TheAlabama Lawyer established pro bono projects for their membership last fall RobertA. Huffaker, editor including Lee County, Morgan County and Montgomery County. These local bars join many bar associationsaround This year has seen increasing involvement in the publica the state in sponsoring projects for their membershipwhich tion process by members of the editorial board. Through sub· are administeredby Watersand monitored by the committee. committees, members are assigned tasks for procuring lead The committee, in a joint project with the University of articles. Special human interest features will be published in AlabamaSchoo l of Law,has completed a "how-to" desk man upcoming issues. In January, a special meeting of the editori ual for use by attorneys volunteering services through the al board was held to consider institution of a bimonthly Volunteer LawyersProgram. Nine legal manuals were pro newsletter in order to provide a means for a more timely dis duced, each focusingon an area of law most often needed by tribution of topical infom1ation to members of the bar. The Volunteer LawyersProgram clients and lawyers. • financial viability of launching this new publication in the near future will be discussed at the editorial board's July meeting, and a decisionwill be made at that lime concerning Task Force on Adult Literacy means of securing appropriate funding to begin publication Lynne8. Kitchens, chair of the newsletter. • To encourage lawyers to help combat adult literacy, local endeavors are publicized through the task force newsletter, The Alabamaurwger Bar DirectoryCommittee Read On, which also offers suggestionsabout a variety of lit Teresa R. Jacobs, editor eracy-promotingactivities. At the statewidel evel, three mem- bers o/ the task force served on a steering committee The committee is charged with publishingt he next edition appointed by the Department of Education to produce a of The Alabamalawyer Bar Directorythat includes a geo handbookent itled Adult Educationand the CriminalJustice graphical telephoned irectory and an alphabetical directoryof System, which will link providers of education/literacy ser all members of the Alabama State Bar. The committee has vices with key persons in the criminal justice system. Our A suggestedcertain format changes for the anticipated publica- THE ALABAMALAWYER MAY1 995 / 161 tion date of June I, and has utilized the sel'\>icesof an adver the classroom. We have completed editing the "Play By the tising consultant lo generate additional-nues to support Rules· publication originallydrafted by the Young Lawyers· publicationof the directory. • Section ultimately to bt made availableto all eighth-graders. U$ingliaisons identified by local bar associationpresidents • AllematioeMethod s of 01,pute Re$Olution Committee William D. Coleman.chair Client Security Fund Committee In August1994 , the committee openedthe AlabamaCente r John A. Owens,chair for DisputeResolution - an ADRmanagement. coordination, Since August 1994, the committee has met once (October research and da-elopmentoffice under the supervisionof the 1994) and considered• \4 claims. Thirty of those claims were newly,reated AlabamaSupreme Court Commissionon Dis paid in the total amount of $57,995.26and 14 claims were pute Resolution.The committee has drafted a proposedcode denied. Currently, there are 56 claims pending with the of ethics for mediatorsto be submitted lo the Supreme Court Client Security f\tnd. • Commission on Dispute Resolution for approval. The com mittee's next focus will be on qualificationsand training for court appointed/referred mediators. A subcommittee has Committee on Comclional Cnstilutionsand Procedures drafted preliminary recommendations for implementing a Mark D. Wilkerson.croiir rmdialion program in domestic relations. and another sub In sa-eral regionaland statewidemeetings, the work of the committee is, by means of ads, public service announce committre has been multi-faceted:(]) assembling the infor· ments and bar newsletters, getting ADR informationout to mation necessaryto prepare CLEand other programs to edu ali areas of the state. The National Conferenceof Bar Presi cate members of the bar as to community correction denL~selected the Alabama Center for Dispute Resolution as nlternatlvesin Lheir area; (2) working with AOCin efforts to one or its "Best Bar Projectsof 1994". • resolveconcerns o,oer poten tial liability for community correc· lions programs: and (3) obtaining bar commissioners· Tulc Force on Bench and Bar Relations endorsementof a resolution to urge the legislatureto renew HonorableJoseph D. Phelps,chair funding for CommunityCorrections Program.~ in 1995.which resolutionwas adopted by the commissionerson March 17. The task force planned and conducted the Third Annual 1995.Restricting applications o( the Habitual OffenderAct and Bench-Bar Conferenceduring lhe Circujt and District Judges cooperative effortsa mong agenciesto provid~seed money for Mid-Winter Conference In Montgomery in January. The con developing community corrections programs statewide are ference was co-sponsored by the AlabamaJudicial College being discussed.R on Jones, prison commissioner,and repre and the MontgomeryCounty Bar Association.As a part of the sentativesfrom the Departmentof Correctionsmet with the program, an interesting panel was built around what the committee in Februaryto discussdaoelopmenl of commWlity Benchand the Barexpect from each other. corrections. • The task forcealso CO·sponsoreda workshopon profession alism lo address polarill J62 I MAY1995 THE ALABAMALAWYER this year, this committee's effortsover the last decadeshow a We believe there will be sufficientinterest to form a section pattern of diligent effort aimed at reform of the indigent shortly with the required 75 members. Todaywe have the defense system. Meaningful change will either have to come namesof about 53 individualswho haveexpressed an interest from the legislature or be forced by state or federal courts. in the formationof this section. Our mission statement is "to The committee is watching reform efforts underwayin Ten enhance understanding of public and private international nessee, Louisiana and Indianawith the expectationthat as a law principles that undergird the world economy - includ committeewe can, by studying others' effortsand adding to ing international trade and transactions, international law that base, aid in developing a system which consistently pr f\NNUAL1995 MEE - .- TI-N July 19~22, 1995 The Wynfrey Hotel Birmingham " .•. striving to keep our business a profession and our profession a calling in the spirit of public service." THEALABAMA LAWYER MAY1 9951 163 much work, the task force has transmitted recommended bar applicantsand practicing attorneys sel"\--edby the AL.A· amendments to the Alabama Constitution to establish a PAI..Sprogram during the last three years in order lo enable merit selection/nominatingcommission meth od for selection the committeeto monitor its current effortsand evaluateits of appellate,circuit and district judges. The task force has utilizationand effectivenessin light of the demonstratedneed also furnishedthe commissionerswith a briefearly historyof forsuch a programwithin the AlabamaState Bar. • Alabama'sjudicial system, and submittedto the commission ers a statementof ils ,vllllngnesslo assist as requestedin the Committeeon l..nwyerPubli c Relallons, Informationand preparationfor and the conductof the Third Citizens'Confer Media Relations ence. The task forceexpects to submit to the commissionersa MaryLynn Bates, chair comprehensivereport providingbackground, facts and anal)l- sis with respectlo the issuesand its recommendations. • We are nearing completion of a number of projects that have been in progressfor more than a year. The cre.-illono f the posillonof director oi communicationsto act as a public LawDay Committee and media information liaison has immeasurably assisted TameriaS. Driskill,chair this committee. Weare obtaining favorablemedia coverage The committee is sponsoring a statewide essay contest of selected slate and local bar charitable and civic acllvlties, using the 1995Law Day Theme, "E PluribusUnum - Out of IOLTAgrants and pro bono services. ln addition. the com Many.One" lo award prizes in two classifications.School mittee has provided a radio spot on mediation based on superinlen 164 / MAY 1995 THEALABAMA LAWYER 4(c) of the Rules GoverningAdmission to the AlabamaState regulation of such plans in this state. Wehope to soon estab Bar with regard to applications by graduates of foreign or lish a system to accumulatestatistical data relating to prepaid out-of-statenon-accredited law schools. • plans currently operating in Alabama,with a view to provide background information to Alabama lawyers as well as to providers. • Task Fon:e on Legiabtke ActMties GreggB. E~-erett.chair The task force was charged to recommendthe most practi Solo and Small F"mnT ask Force cal means of disseminating information regarding pending PaulA. Brantley,chai r legislationand study the suitable role, if any, or a permanent The task force is currently trying to identify significant standing committee on legislation.The task force made the problems and issues thal confront solo practitioners and following recommendations to the bar commissioners on members of small nrms In particular. l'or our purposes, February3. 1995: (I) U1epos ition of legislativecounsel should ·•small firm" includes seven or fewer members. We are devel be retained to followbill s of general interest while the J..egisla oping a survey to be disseminated to a random target group, ture is in session, and publish a weeklystatus report available and hope to have the results tabulated by the beginni,1g or for subscription to members from bar headquarters: (2) the the new bar year. • role of the state bar in legislativeactivities should be limited solely to those bills directly relating to the bar"s regulatory functions;(31 legislative counsers servicesto track legislation Substance Abuse in Society Committee is preferableat the present time o,.'l!restablishing a computtr John OU.chair assistedprogram: and (4) the task force should not be madea Weare currently working toward implementationof a pilot standing committee at the present time. Any nttd to follow drug prevention program to be pr1?$entedin seventh- and particular legislationcan be assignedto a committee or sec eighth-grade classrooms throughout the state. We selected tion most affectedby same. or in the absenceof such a com two JeffersonCounty schools for pilot presentationson sub mittee or section. an ad hoc task forcecan beappointed. • stance abuse this spring with the assistanceor Bradford-Park side. We are surveying with what types of substance abuse activities local activities local bars are already involved to Military Law Committee avoid duplication or efforts and a coordinated approach for Prank M. Ca11rio. chair future growth. • The MilitaryLaw Co mmittee is activelyengaged in preparing for a Military LawSympos ium to be held at the Universityof AlabamaSchool of l,aw. August 18-19, 1995,affording active Unauthorized Practice of LawComm ittee duty and reservemilitary lawyers and ch,,lian la,")-erswith an L. BruceAbles, chair interest in military legal issues, continuing legal education We meet regularlywilh goodattendance, and active partic credits. The 1996 Military Law Symposium is tentatively ipation, and handle an estimated 15 to 20 casesat any given scheduledfor Augll5t 23-24, 1996. • time. If thereis any merit to the complaint.a ceaseand desist order is issued from the General Counsel's office. Serious complaints are assigned to individualmembers for in,,estiga PeTTllllnentCode Commission tion and recommendation to the committee. Sometimes WilliamB. Hairston,Ill , chair members take on the task of seeing that criminal charges are The committeewas asked to review.comment on and clarify brought against an individualth rough the district attorney's proposedamendments to Rule 7.2. Rulesof ProfessionalCon officein their locale, and quo IJJ(lrrantop roceedings are pre duct, a:; suggested by the Committee on l..awyer Advertising pared and filed on occasion by committee members. The and Solicitation. Our committee determin ed that these committee needs the suppOrtof the bar, and believes some requested amendments, directed al further restrictions on legislation should bepas.~ed to aid enforcementprocedures. • direct mail solicitation. would be best served as amendments to Rule 7.3 of the Rules or ProfessionalConduct. Weare cur Tusk Force on Wo.men in the Profession rently studying to what extent prohibition should be made Cec:iliaJ. Collins,chair and again.,tdirect mailing solicitations. through the Officeor A joint luncheon sponsored by the AlabamaState Bar for GeneralCounsel, we are solic:iting input as to how other states women judges and task force members was held on January haveaddressed this problem,with a viewto submit a proposed 18. 1995 to initiate discussions bet"'l!en I.ht bench and bar. draft amendingRule 7.3. Rulesof ProfessionalConduct. • The task forceco-sponsored the secondannual Womenin the Legal Profession Seminar held for CLE credit on April 21, Prepaid Legal Services Committee 1995.The comprehensivesurvey on Womenin the LegalPro CharlesI... Anderson. chair fessionhas been prepared.and we anliclpatethe survey,to be completedprior to July bar convention,will be instrumental As part or our charge to monitor the development or pre in assisting us in preparing recommendationst o the bar as paid legal services plans in Alabama, we are considering, ,. we continue to ascertain the status of women In the legal among other proposals. drarting legislation regarding the • professionin this state. • THE AI..ABAMALAWYER MAY 1995/ 165 IS fl lly ConsumerExpectation WhatShould b e Alabama1s Analysisf or ProductLiability Design Cases ? By R. Ben Hogan, Ill hould Alabamautilize a only in design cases that the term Alleeand Mobileask what prod different test for judg "defect· is an expression of the legal ucts are covered,what is a 'defect' ing product design conclusion to be reached, ralher than a and by inference, what is 'unrea O defectsthan for judging test for reaching that conclusion. sonably dangerous.' ll has been manufacturing or 1oarning Withjn the past two years, our neigh held that the terms are synony defects?The answer is yes. The risk/util boring states or Georgiaand Mississippi mous, that is, defective means ity anal)'Sis-whereby the risks inherent have adopted the risk/utilityanalysis for unreasonablydangerous and has no in a product design are \\>tighedagainst judging product design defect cases.' independentsignificance. (Citations the utility or lhe design-represents the The risk/utility anal)'Sisis the proposed omitted).Our =~r is. a 'ddect' is national consensus for design defect approach or the Restatement (3rd) of that which renders a product cases. Such a lest is consistent with Torts• and is the clear trend in recent 'unreasonablydangerous' i.e., not Alabama's preference for negligence holdings.• In most situations for prod fit for its intendedpurpose, and that based doctrines, and is already utilized ucl liability design cases. it is more all 'defective' products are covered. in this state's crashworthinessc;ises. appropriate than the consumer expecta Whethera product is 'unreasonably There are three c.1Legoriesor product tion test. dangerous· is for the trier or fact. delects! manufacturing defects, design just as negligencevet non is in a defects and marketing/packaging The A£,tt0 and the traditionalnegligence case. defects, which include warning defects. C-Onsumer Expectation Tu t The product either is or is not In a manufacturing defect case, it is In adopting the Alabama Extended 'unreasonablydangerous ' to a per assumed lhat the design of the product M~nufacturers Liability Doctrine in son who should be expectedt o use is sare, and had the product been manu-. 1976, the Alabama Supreme Court made or lo be exposed to IL. If il is, it foclured in accordancewith lhe design, It clear that il was blending warranty makes no differencewhether it is II would have been safe for consumer lawwith the Restatementor Torts (Sec dangerousby design or de(~L The use. In a design defect c.ue the entire ond) to derive an ·unreasonably danger important factor is whether it is product line is called into question. and ous" definition for "defect" and a safe or dangerous when the prod the standard for defectivenessis set by consumer expectation test for judging uct is used as il was intended to be the trier or fact (jury) and the court It is defeel. used.' 166 / MAY1995 THE ALABAMALAWYER In Casrl!/1,lhe Alabama Supreme Defective is interpreted to mean (3) The availabilityof a substitute Court referred to comment I or§ 402 A. that the product does not meet product which \\'Ouldmeet the Restatement or Tort$ 2nd.• A footnoted the reasonable txpectations of an snme needand not be as unsafe; casein the Casrell opinion contains the ordinaryconsumer to its safety. as (4) The manufacturer's ability to followingjury charge: Comment g of the Restatement eliminate the unsafe character says defective condition applies A condition is unreasonably of a product without impairing when, at the time the product dangerous so as to constitute a its usefulnessor making it too defecti"e condition when it is so leaves the seller's hands, it is in a expensiveto maintainits utility; dangerous that a reasonable man conditionnot contemplatedby the (5) The user's ability to avoiddan would not sell the prolluct if he ultimate consumer." ger by the exercise of care in knew of the risks involved. ... To In SearsRoebuck, the Court reversed the use of the product; put It another way. a product is a plaintifrs verdict for injury suffered unreasonably dangerous if it is when a tire blew out afier 30.000 miles, (6)Thc user's anticipated aware dangerous lo an extent beyond because no expert testimony had been ness of the dangen inherent in which would be contemplated by offered in supparl of plaintifrs product the productand their avoidabil the ordinary consumer who pur defectclaims. DoesAlabama's consumer ity, because of general public chases it with the ordinaryknowl expectationlest require expert testimo knowledgeof the obvious con edge common to the community ny lo prO\'edefect? Usually, according to dition of the product, or of the as to ,ts characteristics.• the Court: uiste11ceof suitable warnings or instruction:and In all AEMl..0cases ucept crashwor The C\•idence and testimony th iness cases, Alabama ju ries are likely to prove the defect - that (7) The feasibility, on the part of instructed that "the term defective which renderedthe product not fit the manufacturer.of spreadfng means unreasonablydangerous."' As the for its anticipated use - and the the loss by setting the price of Alabama S11premeCourt explained in defect's link to the Defendant. the productor carrying liability 199l: depend upon the nature of the lnsurance.12 facts: but, ordinarily, expert testi The New Jersey Supreme Court, in The term 'defective'means that mony ls required because of the adopting Professor Wade's "risk/utility the product fails lo meet u,e rea complex and technical nature of analysis" for automobile crashworthi sonable safety expectations of an the commodity. [Citations omit· ness cases In 1978, found that it was 'ordinary consumer,' that is. an led I. This does not mean, howev objective 'ordinary consumer,' er, that experts are always superior lo the "unreasonably danger ous" test of the Restatement (2nd) of possessed of the ordinary knowl required, but simply that they are Tor1$.u Alsorelying ProfessorWade's edge common to the community.• usually essential lo produce evi on article. the Third Circuit adopted the On another occasion, however, the dence to which jurors may reason risk utility analysts in Dawson 11. Court noted that the origin of the defect ably infer that the defective Chrysler Corp.,630 F.2d 950. 957 (3rd definition also borrowed from the Uni condition of the product is the cause of the product's failure and Cir. 1980), cert denied 450 U.S. 959 formCommercial Code: (1981) (artirming plaintifrs verdict for the plaintiffs resulting injury." This Court. defining a defect, aulomobllecras hworthinesseasel. has borrowed from two separate History of the the Risk/UtilityT est In 1985,Justice Maddox.writing for a legal authorities. The Uniform In a 1973 note published in the Mis unanimous Alabama Supreme Court, quoted the Dawsondecision, and adopt CommercialCode § 2-314, speaks sissippi l,llW JournC1!Professor John ed ProfessorWade's seven factors as the in terms of unmerchanlability as Wadesuggested a differentlest for me.a· ll'videnceof product inadequacy, suring whether products were defective balancing processto determine defect in i.e., that the goods are not fit for ly designed." BalancingU,e dangers or an automobile crashworthiness case in Alabama in Cunural Motors Corp. u. the ordinary purposes for which risks of the hazard with the utility or Edwards.482 So. 2d 1176, ll88, (Ala. such goods are expected to be benent of the product, Professor Wade used. The Restatement (2nd) of proposed that the Jury should judge 1985). In Edl/JQrds.however, the court was not abandoning the "unreasonably Tort$,§ 402(a).speaks in terms of whether the productwas defectivebased 'un reasonably dangerous.' Com dangerous• deflnilion of "defective.• on sa'tn fact.OB: bining these two principles. and Instead, ii was defining what would using each in aid of the other, (I) The usefulnessand desirability "meet the reasonableexpecta tions of an Co.sre/1fv. Allee Industries, Inc.. of the product - its utility to ordinaryconsume r as to... safety.-."" 335 So.2d 128 (Ala. 1976)1 at the user and to the public as a Professor Stuart Madden. who has p 133, states: 'A defect is that whole; written extensively on the risk/utility which renders a product unrea (2)The safety nspectsof the prod test, el(l)lainsthat; sonablydangerous, i.e.. not fit for uct - the likelihoodlhal it will The imposition upon plaintiffof its intended purpose. and ... all cause injury, and the probable the requireme nt of showing an defectiveproduc ts are covered.•••• seriousnessof the injury; alternative practical design can be THE ALABAMAl.AWYER MAY1995 I 167 seen as an element or lhe risk/util ma productliability law will transformits benefit derivedfrom the the product''21 ity analysis, in which it is now consumer expectationtest of defect inlD The courr went on to observe: acceptedthat one of the factors to a risk/utilityweighing process. be weighed is 'the manufacturer's In Richards, the Eleventh Circuit This risk/uW!tyanalysis incor ability lo eliminate the unsafe interpreted that Alabama has already porates the concept of 'reasonable• chJracterislicof tilt product with extended risk/utility analysis beyond ness,' i.e.. whether the manufac out impairing its usefulness or crashworthinesscases lo all designdefect turer acted reasonablyin chasing making it too expensiveto main caseslnvoMng claims of negligenceor a particular product design, gi"en tain its ulillty.'11 wantonness.What are other states doing the probabilityand seriousnessof The seven factors or Professor Wade about the definitionof defect? the risk posed by the design. the which in Edwards expounded the con usefulness of the product in that sumer expectation of crashworthiness condition,and the burden on the safety. represent, according to Professor manufacturer to lake the neces Madden, a separat.eana lysis altogether. sary steps to eliminate the risk. This being so, Alabama law took its first When a jury decidesthat the risk step toward the weighing process of of harm outweighsthe utility of a risk/utilityin crashworthinesscases. particulardesign (that the product The weighing processof the Edwards is not ilS safe as It should be), it is crashworthinessdoctrine was appliedto saying that in choosing the par marine crashworlhinessin two propeller ticular design and the cost trade guard casu, the first decided by the ofTs.the manufacturerexposed the EleventhCircuit basedon Alabamalaw, consumer to greater risk of injury and the second decided on certified than he should ha,oe.Conceptually questions by the Alabama Supreme and analytically, this approach Courl. 11 In the motorcyc le helmet bespeaks negligence !Citations crashworthiness case Dennis v. Ameri omitted). The balancing test that can Honda Motor Co., Inc., 585 So.2d forms the risk/utility analysis is 1336(A la. 1991),t he court again alluded lhus consistent with Georgia law, to the Edwards "crashworthiness doc In a risk/utility analysis, an which h~s long appliedn egligence lrine:•11 These c.1seswere the exception principles in making the determi· to an otherwise traditional lleslatement nalion whether a product was consumer expectation test for judging open and ob/Jlous hazard defectively designed.tt defect under Alabama product liability law,until Richards. does not defeat liability, but In 1993. the Mississippi Supreme Court spurned the consumer expecta The Richards Decision and llli k/Utility tion test for risk/utilityanalysis in prod merely a factor to be taken In Richardsv. Michelin Tire C-Orp.," is uct design cases." Under the risk/utility the plainti(( had received serious analysis in Mississippi, a product is injuries when he attempted to mount a into consideration. "unreasonablydangerous" if "a reason 16-inch Lireon a 16-inch rim. overin able person would conclude that the nated the lire and the tire exploded.The danger-i n-fact, whether foreseeableor complaint alleged counts sounding in not. outweighsthe utility"of the design." both negligenceand wantonness related California has supplementedlhe con to design. manufacturing, assembling, sumer expectation lest with the risk/ selling. nnd (ailure to 1varn.N o AEMLD Other states utility test, reasoning that although the claim was sent to the Jury. In reversing, It is clear lhnt there is a trend away product might meet consumer e.xpecla however, the Court cited the AEMLD from the consumer exiwctationtest and tions because it was identical to others decisions or Beech and F::lliollfor the toward Professor Wade's risk/utility of the same product line, the consumer proposition that "ltlo prove defective analysis in product liability design would not be in a position to know how ness under Alabamalaw. a plaintiffmust cases."' In adopting the risk/utilityanal safe the manufacturer could make the prove that a safer. practical, altemati\-e ysis for future product design cases in product.ts In Soule v. GeneralNo/ors design was availableto the manufactur December 1994. Lhe Georgia Supreme Corp.. a crashworthiness case.General er at the time it manufacturedits prod Court reported that it had ·conducted Motors briefed to the California uct.''tt an exhausli\-ereview of foreignjurisdic Supreme Court that the consumer If the impositionupon plaintiffof the tions and treatises... (which! re\'ealeda expectation Lest is an •u nworkable. proof requirementof showinga feasible general concensusregarding the utili2a amorphic. fleeting standard" which alternativedesign is expandedpast Alaba tion in designdefect cases of a balancing should nol be an oplional basis for find ma crashwort hiness cases into other test whereby the risks in a product ing designdefect. General Motors argue d product liabilitydesign cases, then Alaba- designare weighed against the utility or thal the consumer expectatio n test 168/ MAY 1995 THE ALABAMALA\ \/YEil defies definition, focuses not on the minimum number of "t.ests and inspec the open and obviousnature of a danger objective condition of the product but tions to assure· safetyof a product• will sometimes defeat recovery." In a on subjective and often unreasonable The themes that repeat themseh'es in risk/utilityanalysis, an open and obvious opinionsof consumers and ignores real these casesare two: (I) Judge Learned hazard does not defeat liability, but is ity... Hand's reasoning that "a whole calling merely a factor to be taken into consid· In Soule,the plaintiff sustained ankle may have unduly laggedin the adoption eration." Should the jury be told about injuries when a collision fractured a of new and availabledevices," " and (2) the list of seven factors which are uti wheel assembly, and drove il into the Professor Wade's admonition that con lized In U,e risk/utility testJ slanted noorboardarea beneath the foot sumers are not sumcienlly protected by The answer should normally be pedals, deforming it into the passenger a test which is limited to commonly no. The problem here is similar to compartment. The jury had bten understood dangers, because the con that in negligence. The Restate· instructtd upon the consumer e,cpecta. sumer often does not "know what to ment o( Torts has analyud negli· Liontest. Californialaw allowsa manu· expect because he would have no idu gence, descnoing it as a balancing fac:turer to defend by proving that its howsafe the product could be made."" of the magnitude orthe risk designmet reasonablestandards under a against the utility orthe risk. and risk/utilitytest and CM argued that only So What's the Difference? listed the factors which go into risk/utility was suitable for a crashwor• What are some of the implicationsof a determining the weight of both of lhiness c.1$e.T he Court agreed that the shift toward a risk/utility methodology these elements. This analysis is jury should have been instructed solely of Judging "defect?"In the jurisdictions most helpful and can be used with on risk/utilityand not consumer exptc that followconsumer expectationtests, profitby trial and appellate judges, tation. but affirmedthe verdict because plaintifrs proof was suf(icient under either theory. It e,q:,lainedthe manufac turer'sproof burden under the rlsk/utili· ty test: The manufacturer need only show that given !he inherent com plexities of design, the benefits of Its chosen design outweigh the dangers. Moreover, modern dis· covery practice neither redresses the inherent technical imbarance between manufacturer and con· sumer nor dictates that the injured consumer should bear the primary burden of evaluating a design developed and chosen by u,e manufacturer.21 Hawaii, Arizona, Ohio and Illi nois also haveexpress ly recognized that a product's design is defective if it either violates the minimum M1W59ppiY.illcy Tulc has the suengsh IIJld mbiy ofO\ff 50>= in thetitle safety expectationsof an ordinary ~ Clll1SE(Ull\~ A+~ &miSUmml 6' Poor.DI theNmmi po51- consumer or containsdangers that oonofbnng the !l1llllOO ant titlr = mboch M~ppi aodAlaoo.ma outweighits benefit" Withour sumi,Jt ;ind exprnence, wecombine the Oexiblluy 10solve your Nebrask.,.Arizona , Colorado,I ndiana. toughticle pro6lems with a willln~ to workwith you towards real solutions. New Jersey. Iowa. and Missouri have Bemusent MississippiValley Title, AexStnbility lsn\ JUSI a concept; its lheway accomplished much the same thing by wedo busm~ giving manufacturers a state of the art ...... defense if they can meet the burden of ,. .. establishing that their designs satisfy the requirements of each state's • MISSISSIPPI VALLEY TITLE defense.a Nebraska has interpreted its • "INSURA NCE COMPANY consumer expectationtest as including • .,. the design process as much as the Tl,e Flexibili ry You Ne£d. TI,e Stabili ty You Trust. design Itself. finding that a reasonable llH~ Strttt • Jocbon.Mlto!61ppl )920) • 601,0(,9.0222• llO(M,!7.2121 consumer. for example, may reasonably expect a manufacturer to conduct a THE ALABAMALA INYER MAY1995 / 169 and by students and commenta· Improper design. There is little gent per se. Selling a product tors. But it is not ordinarilygiven differencehere betweenthe negli which Is not duly safe is negli to the jury. Instead, they are told gence action and the action for gence within itself, and no more that negligence depends upon strict liability.This is true, at least needs to be proved. Whether this what a reasonable prudent man for the manufacturer. who nor is called negligenceor strict liabil would do under the same or simi mally either knows of the danger ity Is not rully significant.14 lar circumstances. Occasionally. which tht duign creates or when one of the factors has espe should know (i.e., is negligent in It makessense that there wouldbe dif cial significance, it may be appro not knowingof it); it is less true of ferent tests (or Judginga manufacturing p rla te for the judge to make a supplier.who may take the prod- defect than for judging a design defecL referenceto it in suitable language. The consumer expectation test is suit l'or example, in factor number 6, able. and virtually universally used. In if the dangerous condition of the cases ,,lmeda l a particularflaw in a sin product is perfectlyap parent, the gle product. WhHe a manufacturer's judge might refer to lhis in telling design Is challenged, so that the case the Jury that they are to decide mighl have nationwideimp lications and whether a reasonable prudent possibly lead to findings of collateral man would put the producton the estoppel.the consumer expectationsof a market, or whether its danger was givencommunity are not as logicala test so great that it ought not lo be as the weighingprocess of risk/utility. marketed at all. de~pite the obvi The difficult}• comes when it is ousness of the danger." not just the single article which is Professor Wade has suggested the fol. to be classedunsafe because some lowing jury instruction for product thing went wrong in the making design=: of it, but a whole group or class or A Iproduct! is not duly safeif it is type which may be unsare because so likely to be harmrul to persons The co11sumer expectation of the nature of the design. IL is lor propertyI that a reasonablypru here that the policyissues become dent manufacturer !suppller J. who very importan t and the factors had actual knowledgeor its harm lest ls suit able, and virtuall y which 1vere enumerated above ful character.would not placeit on must be collected and carerully the market. IL is not necessary to unlllf!rsallg used, in cases weighed.II Is here that the court find that this defendanthad knowl - whether trial or appellate - edge of the harmful character of doesconsider ~ issuesin decid the lproductl ,n order lo determine aimed al a partic ular flaw ing whether to submit the caseto that it was not duly safe.• the Jury. If a plaintiff sues the By contrast, the EIC\-enthCircuit Pat in a si11gle produc t. manufacturer of a butcher knife tern Jury lnstrucuonsfor productsliabili because he cut his finger on the ty cases conl.lin the followingconsumer sole ground that the knife was so expectationdefinition of derect: sharp that il was likely lo cut A product is in a defectivecon human rtesh. the court would ucl rrom the manufacturer with probably lake the case out of the dlllon. unreJ1.1onablydangerous to out inspecting iL in detail. Under lhe user. when ILhas n propensity hands or the jury and not give it design is included the failure to the opportunity to find that the or tendency ror causing physical make propersafety devices. Design harm beyondlhal which would be knife was unsafe. Similarly with may Includethe parts or elements an a.5pirinmanufacturer, when an contemplated by the ordinary which do or do not go into the user. having ordinary knowledge makeup of a product, if it is or the product's characteristics R. Ben Hogan , IU intended to be in that condition. R Ben tiog.1n I u :s a commonly known to the foresee (Citationsomitted( .» CNflJ"'i4Hw tt\Me 9 ~ able class of persons who would .nrigt\ilffl''"" cf Hoe&-11 5'Tlin & AISOaugl> 1-1e normallyuse the product." Elsewhere. Professor Wade makesit b a ,nlMT\ber of 1ne clear that the liability imposedon -Tfllll.lr ...... Where product liability design ~os an a case APoc:Ja to, a.rida '"'* proceeds from a risk/utility analysis, objective basis, without having lo find rl'tmber and for1T1.e, negligentconduct. .. ." He predicted: cna,1 o! tl"e P101Ju~1 there is little difference between strict L1&b11 s«t,on. liability and a negligence case. As Pro eie:10,. of Tf'llf Lawyo,s The lime will probably come ol AmorJcaH e 11 aiso fessor Wade explained, moreover, that when courts are ready lo declare prosldenl ol N A!aba· makes it moresu itable for design cases ma Chaptet ol Iha that one who sells a products ~J ean Boardol i rlal in the nr st place: which Is unduly unsafe is negli- Adl/OC.atO!i 170 I MAY1995 Tl IE ALABAMALAWYER ordinary tablet stuck to the lining burden of showing that the challenged (3)Assuming that Alabama adopts a or the plain tiff's stomach and design met state of the art on the manu risk/utility analysis for product caused a hemorrhage,or the man facturer." If Alabamais to take the sug liability design cases, then what ufacturer of the Pasteur treatment gestion of the Eleventh Circuit in are the proof requirements of a for rabies, when there were unto Richards, and imposea burden to prove feasible alternativesafe design?50 ward reactions. The problem in the existence of a safer alternative these cases is likely to be called design in product design cases, then the one of law and decided by the following policy issues must be Conclusion court. Court control of jury action addressed: Product liabilitydesign cases in Alaba is more extensivehere than in the ma which have required the plaintiff to ())Will Alabamacontinue to allow ordinary negligence action. And prove the existence of a feasiblealterna the consumer expectation test yet, of course, if the court decides tive design have, in effect, introduced to be an optional basis for prov that it would be reasonable to the risk/utility analysis into Alabama ing design defect? If so. what allow the jury to find for the plain product liability law. The consumer role will be played,if any, by evi tiff, the issue of lack of due safety expectation test is not entirely consis dence of alternative , safer will be submitted to the jury even tent with that analysis, since a con designs, and where will Alabama in these cases." sumer does not know how safely a place the burden of proving the product can be made. There are occa Under the risk/utility analysis, the existence of such de.sign?.. sions when there may exist available technology, guards, or alternative design of the product must be weighed (2)Will the risk/utility analysis be designs whose lack of use justifies the against an available alternative design used for all cases alleging defec findingof defect.To date. Alabama case that would have prevented or lessened tive design? This would expand law has not clearly delineated the differ· the severity of the injury." Under the use of APJI32.22 beyond crash ence betweencons umer expectation and Alabamaanalys is the burden of proving worthiness cases to all design risk/utility tests, whereas other states the availability of that design rests on defect cases. to establish exces have distinguished the two methods of the plaintiff." Some states have rejected sive preventabledanger. On the analysis. The primary role in Alabama the consumer expectation test in design other hand , the risk/ut ility for the continued use of the consumer cases." Other states expresslyrecogni1,e weighing process in APJI 32.22 expectation test should be in manufac that a product's design is defectiveif it is not the consumer expectation turing defect cases, or 1vherethe prod either violates the minimum safety test, and reference to consumer uct's design contains a safety defect of expectationsof an ordinaryconsumer or expectation shou Id be removed such import as to fail the intended or contains dangers which outweigh its from that charge. benefits. " In Soule, the California foreseeable use of the product. In such a Supreme Court justified a continuing role for the consumer expectation test in design cases: Notice to Policyholders, Claimants and Creditors Wefu lly understand the dangers Re: The S1a1eof Texas V. EmployersCas ualty Company; of improper use of the consumer Cause No. 92-02133 in U1e353 rd JudicialDis1rict Co un of Tmvis expectation test. H 0\\ 1ever,\\ 1e can· County, Texas; not accept CM's insinuation that ordinary consumers lack any legit The State of Texas V. Employersof TexasLloyd's and Employersor imate expectations about the min TexasLloyd's Inc,: Cause No. 94-00949in the 353rd JudicialDislfict Co un ofTmvis imum safety of the products they Coun1y, Texas; use. In particular circumstances, a product's design may perform so The Srn1eof Texas V. EmployersNational Insurance Company; unsafely that the defect is appar Cause No. 94-00950 in lbe 53rd J udiciaJDislrict Cou rt of Travis ent to the common reason, experi County.Texas; ence and understanding of its Please be advisedthat the above-referenced companieswere placed in ordinary consu mers. In such pennancntreceiversh ip by order of the above-referencedCouns on cases, a Jay jury is competent to Februaryll, 1994. '11,eC laims Filing Deadlineis July 31, 1995. To make that determination. ..i reques1a Proof of Claim Fonn. please call (512) 44 t -0440or fax your reques1to (512) 441-0804. States which follow the consumer expectation test. other than Alabam~. do ~ ..,.,. }th not require proof of a safer, practical. Jack M. Webb. alternative design in order to establish Special DeputyReceiver Fo r defectiveness." Other states allow the EmployersCas ualty Company,ln Receivership Employersof TexasLloyd's and Employersor TexasL loyd's Inc., state of the art defense by statute or In Receivership court decision, although placing the EmployersNational InsuranceCompany, In Receivership Tl-IEALABAMA LAWY Jm MAY 1995/ 171 case, proof of a feasible alternative 1 Alaoamo---3212 II03F2<1 ISOli 1507(11.,Ci< 1000) -- design is not necessaryundu lhe analy 8 °"""'4 Co • a.- 58&So 211 196- 198 IN 4Sleu S 104811991)l,....,.w,g ....,.l<•1"'f-· 1991~auo1r,g ...... _,,_ .. c...on.d OC1on,_. - proal OQ no1...-.,- sis of the consumer expectation test Ion ,_,.., d p,cpetor gua,111.ond lr<)o'IQN "'"""'-, t,e 431 S021191&.9'81,',a 1983} -...... nol __ .. _ ustd by most stales, or by Alabama's 9 $ears ~ & Co h: V ki'•'m Hifs F;J/'fTI Uniform CommercialCode. b:. 395 So.2d 991.991 (,\.a ISlelJ (tiOl 172 / MAY 1995 THE ALABAMALAWYER l,fac/wle CO, 432 N E20 814. 818 (Oh,o 1982). Amoncan ,...,,, Co-p 335 So :Id 134. 140 (Alo attet'tlll!YII and inoullry CUtlQm are l'IOl ltlNtltlaJ Palmetv A,c() !Xst CO,p, 412 NE20 959. 862. IQ1G)(Quoong11165 Dean WIide 811>dol 966(111 1880) elamanll OI n l)rOdu~ hOblUtypla1ni1trs ce,11 411 '" IJ 83S-839 ti !I no:unprecedanbta it-.aa tha 4l S.. noio 24 supra 29 ·- Rov $la§ 25-21 182:- Rev Slit - § 12-683 Colo ""' Sui1 Ann S 42-12 1(1C - S.C,,.,.. ec.., has adoo an poocy -· sonsro ,8l'l"O\lli certa,n OE!:S9'I...... hem ~ •9 Geoiv,Llol._ CW... 19901(""'4 ol ""' art eQulls CurrentOverview and Practice Suggestions Bg M. D011a/dDa ois, Jr. he recent enactment or the ITJheplan may - or subsection (bl until such resi Bankruptcy Reform Act dence1s sold at a foreclosuresale ("Acl"I and decisionsor Unit • • that ,s conducted in accordance ed States District Courts and wilh applicable nonbankruptcy (21modiry the rights or holders BankruptcyCourts in Alaba law:and D of secured claims, other than a ma, the Eleven th Circuit Court or (21ln a case in which the last Appeals and the Supreme Court or the claim secured only by a security i nlerest In re~I property that is payment on the original payment United States during the past two years the debtor's principal residence, schedule ror a clai111sec ured only have prompted considerable discussion by a security Interest in real prop aboul the rights and remedies or holders or of holders of unsecured claims. or lenve unnffected the rights of erty that is the debtor's principal or residential real estate mortgages in holders or any class or clairns: residence is due before the date the Chapter 13context In Alabama.The on which the final paymentunder topics or interest include: 111the ability (31provide for the curing or the plan is due. the plan may pro or a Chapter 13 debtor lo cure a pre waivingor any default; vide for the payment of the claim peJitionmortgage default in the course as modi(ied pursuant to of the typical non-judicial mortgage ••• 1325(a)(5). forec.losurtprocedu re; (21the ability of (5) notwithstanding paragraph a Chapter 13debtor to ·strip down"the Section 1325or the BankruptcyCode (2) or this subsection, providefor debt secured by a home mortgageto the concerns conCirmalionof a Chapter 13 the curing or any default within a value or the home: (3) the right or fully plan and it specifies the standards the secured mortgage holders to receive reasonabletime and maintenance bankruptcy court.s are lo use in deter of payments while the case is interest on pre- and post-petition mining whether lo confirm such a plan. securedclaim arrearages;(4) the ability of a debtor lo pending on any ... Section t325(a)(5)p rovidesas follo\1/S: on which the last Jl••)•ment is due cure 1ml-confirmolio11 defaults: and (5) arter the dnte on which the final the effect or a confirmation order on IWJith respeci Lo each allo\1/ed payment under the plan is due motions seeking relief from the auto secured claim provided for by the (emphasisadded). matic stay and requests for adequate plan· protection. Section 1322 was amended by the !Althe holder of such claim has Act.A newsubsection (cl was added and acceptedthe plan; in conjunction them,ith, the existing (B)(il the plan providesthat the subsection (cl was redesignated. The holder or such claim retain the Pertinent Bankruptcy Statutory new subsection(c) providesas foUows: Provisions lien securing such claim: and Nolwithstandinfl subsection Secllon 1322or the BankruptcyCode (iil the value, as or the effective is the key statutory provisionaffecting (b)(2) and applicablelaw - date of the plan, or property lo be treatment or secured claims involving II) a default with respect to, or distributed under the plan on residential real estate mortgages in a that gave rise lo, a lien on the account of such claim is not less Chapler 13 case. Section l 322(b) pro debtor's principal residence may than the allowed amount of such vides in relevanl part nsfollows: be cured under parngraph(3) or (5) claim; or 174 / MAY 1995 nm ALABAMALAW YER (C) Lhe debtor surrenders the the foreclosed real property.• Between or Lheclaim plus Interest and the unse property securing such claim to confusing Alabama law in terms or cured portion being treated similar to such holder •... when a foreclosure sale is concluded other unsecured claims in the debtor's and the legislative history accompany Chapter 13 plan. In such an instance, ing the recent amendment to Section the unsecured Portion of the claim ulti Cure o( pre-petitionddaults 1322by the Act. the issue of when the matelywould be discharged. Prior to the enactment or the Act, the right to decelerate and cure in the In Nobleman 11. Amari'con Savings Eleventh Circuit had not ruled at what Chapter 13 setting will likely continue. Bank,• the Supreme Court of the United point a Chapter 13 debtor lost the right The bes/ adui'ce that con be given to States unanimously held that Section lo decelerate a mortgage. Courts and those who do not want o Chapter 13 1322(b)(2) prohibits a Chapter 13 members or the bar in Alabama devel debtor to decelerall! and cure a mort debtor from relying on Section 506(a) oped differing views on this issue. All gage default is to have the foreclosure to reduce an undersecured homestead seem Lo agree lhal prior lo the actual deeds prepared and filed of record as mortgage to the foir market value of the foreclosure sale. the Chapter 13 debtor quick/Jjas 1wssible. mortgaged premises. The Court con can cure and reinstate a real esta te duded that Chapter 13 debtors may not mor41age.• At the point of the foreclo "strip down" a home mortgage debt lo sure sale, disergence or opinion arises. lhe value of the home. One view is that the right to decelerate Restructure of mortgage debt coming In Noblemanthe debtors' Chapter 13 continues until the foreclosure sale is due during lift of Chapter 13 plan plan proposed to make payments equal completed and title passes to the pur The Act also cluifies how Chapter 13 to the value or the secured claim pur chaser.' Anotherview was that the right debtors can restructure home mortgage suant to the terms or the mortgage and lo deceleratecontinues aner foreclosure debt when the mortgage debt matures the plan did not alter the mortgage as long as the debtor has a legal or equi and becomes payableduring the life of holder's right as the holder of a secured table interest in the property (even if the Chapter 13 plan. For example. the cla[m. Additionally,the debtors' Chap that interest was only the statutory mortgage debt m.iy include a b~lloon ter 13 plan providedfor partial payment right of redemption).• These rulings payment feature that comes due 18 of the unsecured portion of the mort continue to have significance in their months afier lhc Chapter 13 case is com gage holder's debt. In Nobleman the par res11ectivedi slrlcts as lhe amendment menced. Under the pre-Act version of ties agreed that modificatio n o( the to Section 1322 was not retroactive in Section 1322(b)(2).extension o f the bal rights or the mortgagee was prohibited application. Mo1~ever.the debate should loon payment due dale was considered end soon as the Eleventh Circuit an impermissible modification or the presently has the Issue lx!foreit in the mortgage debt. The revised provision Ccmmerr:i'al Federal Mortgage case. permits the payment of the mortgage Most Alabamabankruptcy practition debt extendedthroughout the life of the f ::::: TEO DASHER& ers familiar with this debate have plan. It should be noted that if a debtor ~ ASSOCIATES assumed that the debate has been is attempting to extend a balloon pay resolved given the recent amendment ment OYerthe life or a proposedChapter HEWLETT-PACKARD to Section 1322. However.closer review 13 plan. the debtor must still meet the COMPUTERSI PERIPHERALS I REPAIRS of the statute and the accompanying requirements for the treatment or legislativehistory indicate Possiblyoth · secured claimsunder Section l325(a){5). A COMPLETE LINEOF USEDAND envise. Section I 322(c). as amended, REFURBISHEDHP EQUIPMENT states that the right to decelerate and TO FILLALL OF YOUR cure ends when the ,·esidenlial properly COMPUTERREQUIREMENTS. is sold 11la foreclosure sale conducted Stripdown or debt secured LASERPRINTERS , SCANNERS, DISKDRIVES, in accordance with applicab le non by home mortgage liens OESKJETPRIN TERS,PlOTTERS, PC'S ANO bankruptcy law. llowever, the legisla Generally, the singlemost event 9000SERIE S WORKSTATIONSARE READY tive histor y accompanying this prompting individuals to seek Chapter FORI MMEDIATEOELNERY . CALLO UR provisionclouds the situation.• 13relief is the commencementof a fore TOLLFREE N UMBERFOR AVAILA61LITY Under Alabama law, at a foreclosure closure proceeding involving the ANOPRICING , sale or mortgaged property. legal title debtor's home. Logically,one of the pri A FUUY STAFFEDREPAIR ,'cSl5 in the purch=r at the sale.5 How mary purposes or Chapter 13 is to DEPARTMENT IS ALSOAVAILABLE FOR ever. in order (or title lo transfer. a con enable debtors lo cure their mortgage ALL OFYOUR PRINTER I PLOTifR veyanceo f the lands sold mu.stoccur. • A defaultsand retain their homes. Howev SERVICENi:EDS . parol sale of lands under a powerof sale er, the ability to cure, as disc~d above, 4117 2ND AVENUE SOUTH clause contained in a mortgage has is not unlimited. Prior to 1993. a BIRMINGHAM , AL 35222 been held to be a nullity.' although it nat[onwidcdebate existedas to whether has been held that execution of a deed is an undersecurcd creditor's claim could 800-638-4833 not necessaryto vest the purchaser at a be bifurcated.with the debtor satisfying 205-592-4747 fo,·eclosure sale with equitable title to the full amount or the secured portion FAX 592-i:l.08 THEAI.Al3AMA 1..AI WER MAY1995 / l 75 by Section 1322(bl(2). The debtors and obtaining a Chapter 7 discharge plan confirmationhearings are handled argued: (I) their plan did no1propose a beforeseeking Chapter 13 relief. \'aries amongst the bankruptcy courts modification;(2) that Sectionl322(b)(2) in the state. In some areas the practice only protected the mortgage holder's of creditors holding a real estate mort •secured claim;" (3) that under Section Curing post-confirmation gage on the principal residence of a 506(a) the secured claim only equalled mortgage defaults Chapter 13 debtor when a plan contains the value of the property; and (4) that The abilityof a debtor to cure a post objectionable provisions, has been lo the unsecuredportion wasnot protected confirmationdefault of a residentialreal ignoreobjecting lo the Chapter 13 plan by Section 1322(b)(2). The debtors' estate mortg;,gehas beenthe subject of and proceedinglo filea motion seeking arguments were rejected with Justice much debate and five published deci relief from the aulomatic stay to fore Clarence Thomas finding that their sions. four of which emanatedfrom the close on lhe property.The effectof the interpretation failed to !likeinto account Western Divisionof the Northern Dis riling of such a motion was for the Section 1322(b)(2)'s focus on '·rights" trict or Alabama." In each instance" the debtor to negotiate with the secured ralher than "claims." While it was cor BankruptcyCourts permitted the cure creditor in order to keep the residence. rect to lookat Sttt ion 506(a)to properly of a post-confirmation defaults in a Often this resulted in side agreements value and determine lhe nature of the Chapter 13 cases. On appeal to the Dis betweenthe debtorsand their creditors. mortg;,geholder's claim. the Nobleman trict Court, different results occurred. The bankruptcyjudges o( lhe Southern Court held that such did not me;m that Recently, in the case of In R" Hoggle Districtof Alabamaha\-e indicated their the · rights" of the mortgagee, which (Greentree Acceptance, Inc. u. Hog concern about this practice becausethe were protected by Section 1322(b)(2). gle)," the E:levenlh Circuit Court of order of confirmation of a Chapter 13 were limited by the valuation. Appeals, in three consoli datcd casesco n plan has res judicala and/or collateral Nobleman is significant concerning cern Ing claims secured by mobile estoppel effect as to issues regarding the Supreme Court's discussion about horn!!$and real estate that were the prl· whether a secured creditor's interests the term "rights;" which ILnoted was mary residences or the debtors. held are adequatelyprotected. Quoting Col not defined in the Bankruptcy Code. that the bankruptcy court had the liers On Bankruplcg, one bankruptcy Wilhoul controlling federal law,Justice authorityto modifya confirmedChapter court has held: Thomasstated lhal il wouldbe assumed 13 plan to allowa debtor to cure a post ll is therefore incumbent upon lhal Congress left the controlling deter confim1ationdefa ull with referencel o a creditors with notice of the chap, mination of properly rights In assets of secured claim on a debtor's house. The ter 13 case Loreview the plan and the bankruptcyes tate to state law since Eleventh Circuit based its ruling upon objecl to the plan if they believeit those propertyinterests are created and the "plainmeaning" or Section 1322 and to be improper; they may ignore definedby state law. These rights were 1329of the BankruptcyCode. The Court the confirmation hearing only at noted as including the right lo repay noted that although Section 1322(b)t2) their peril .... (Creditor)may not ment of principal in monthly install prohibits modificationof the rights of take cation to collect debts which ments over a fixed terms al specified home mortgage lenders, Section are inconsistent with the method adjustable rates of interest, the right to l 322(b)(5) of the Bankruptcy Code of payment provided in lhe plan . . retain the lien until the dcbl is paid off. "expressly authorizes plans to provide .. Once the plan is confirmedthe the right to accelerate the loan upon for lhe timelycuring or any defaultand only cause for relief from the stay defaultand proceedagainst the debtors' maintenanceof paymentsduring the life thal may be validlyasserted is the residence by foreclosure and public of the plan." The Court stated: debtor's material failure to com sale. and the right to bring an action to plywith the plan.•• recover any deficiencyremaining after Congress could have easily foreclosure.•• Justice Thomas reasoned inserted lhe word prepetltion to Thus, provisionsin a proposedC hap that while these rights might be affect· modifyde fault but foiledto do so. ter 13 plan concerning cure of a default ed by the initiation of a bankruptcy The omission Is significant. The (pre- or post-petition)payment of inter- CMe, the statutory limits were indepen plainmeaning of Section1322(b)(5) dent of the debtor's plan, which itseli is permits cure of any default prohibitedfrom modifyingthose rights whether occurringprior to the m. M. Donald Davi s. Jr . by Sectlon1322(b)(2 ). Ing of the petition or subsequent to confirmationof the plan. Thus, M l>orwdOlh·-iS. Jr. 11 While discussing Noblem/111several 1 thlreholdar ols, roie addiliona l points deserve comment Section 1322(b)(5)would permit &Porm .. , 11n<1pmc l'irsl, the limitation lo modification cure of post-co nfirmat ion de uco1 pumar1ly'" faults.u Mot>lc I-leIs a gml"' applies only to the rights of holders of Bit Oftne Untver&ityor securityinterests in real propertythat is ScutliAlablmaltld c-lonaSc:hoolol the debtor's principalresidence. Sttond, uw Sa,,-ba u,,-. as a result of the Supreme Court's deci Objecting LoCha pter 13 plans 1y0t ...... - .. .,. Amoncan sion in Johnsonu. HomeState Bank,11 a and motions seeking rtlief BankrulMeylns tJ11J1eat!d CU 176 / MAY1995 Tl-iEALABAMA LAWYER est have gained new significance. al for interest on arrearagesas o part of q ~ 1•0 Cong . Ilk. 11R. 10769 (0a • . ISl!M), least within the Southern District of curinga default. • $ . v... ,no o1 lille oocu,.,"'"""'" ., Na. CCdtlf 3> Alabama.A lawyer for a creditor hold· IC>-111975), a.A>jool10 lhe fTIOl1llagoholoctlon 10 ln.Qa rea l estate mortgagea s collateral ENDNOTES exerciselhe s.uuulDfYrigf'!.1 or redemption. needs lo be a/er/ to the prOllisionsof a I. SN ln11t~869F.2d 143'(111110, . 1969) •• .Id. ond In,. 1*'99/9(GieemtN ...... ,,_ b,c. • 7 .-, v. SC.,,. 97 AIA.98 (1880). proposedChapter /3 plan and ad on a lqp!i,.12F.3d 1008(111h0, ISl!M) I. - • """"*r , 22&AIL 6'8 (•9331 timely basis to protect his or her 2. See In to o.not, ,., BR. 221 (81<11cy.MD.Ala. 9. _ U.S.~ 113 S Cl. 21<16, 12• Ud2d 221 client's interests in conjunction wilh 1991) and ,n ,e McKinn1y . 174 B.R. 330 (1993). the confirmationprocess . (81<11cy,S.D,AI• 1994), 10. 113s.o,. ii 2110 . 3. See In tit 11.t~, 155 B.R. 578 (Bl THEAIJ\BAMALAWYER MAY1995 / 177 YOUNGLAWYERS ' SECTION By HERBERT HAROLDWES T,JR . y Lhe time this article is pub increased interest and the seminar has lished, several or the Young grownfrom averagingl ess than 200 reg Lawyers' Section's major istrantsto over280 registrants lasl year. projects will be underway. Another project the section organizes mThe ~tinority Participation Conference in May is the spring admissions cere is scheduled for May 5. 1995. in Mont mony. The ceremony is scheduled for gomery, Alabama. The conference May 23, 1995 at the MontgomeryCivic allows minority high school students to Center. Of all the prQjectsin which the meet with minority lawyersand Judges section is involved.the admissions cere to learn more nbout career opportuni mony probably requires the most work. ties in the legal profession.This is only Tom Albritton and Brian Horsley were Lhesecond year of Lheconference. but responsible for organizing last fall's the number of high schoolstudents par· admissionsceremony and are also orga tlcipating is expected to exceed 150. nizing the spring admissions ceremony. Fred Cray. Jr . chairs the committee Theya re commended for their efforts. responsible for putting on the confer HAL WEST One projectwe did not have lo under ence, and he and the other membersof take this year is the emergencyre sponse the committeeue lo be commendedfor program in cooperationwith the l'ede_r their efforts. al EmergencyManagement Administra The AnnualS andestin Seminar at the In prior years, the YLSsponsored the tion. The section is responsible for beachis scheduledfor May19 and 20.and seminar, but much of the organization providing lawyers lo answer victims' the attendancea t this year's seminar may and administration of the seminar was questions in the event of an emergency. even exceedlast year'srecord allemlance. undertakenby ABICLE.1wo years ago, in This year an emergency has not Al lhe time of this writing.Sandestin had an effort to get more young lawyers occurred requiring the section to pro completely booked the block of rooms in\'olved in the seclion·s activities, the vide lawyers. but we must be prepared reserved for the seminar and was section took responsibilityfor the entire to do so on short notice. Let's hope this attempting to reserveadditional rooms. seminar. Since that Limethe number of trend continues. To my knowledge,the section has never young lawyersinvo lved in putting on the I look fonvard lo seeing you al the beforeboo ked all lhe reservedrooms in seminar has drama•ically increased. beach and at the July state bar conven the seminar'shistory. Along\\'ith greater involvtmfflthas come tion in Birmingham. • EXPLORE YouR OPTIONS. (Bener yet, lee us do ir for you.) \V/,:R'.:I Jizc you ilrC"F.accd with m:any1n11lpr.accicr in.\uruncc options. Sorc l,lngfor chC'cov<'r.1.gc 1hac is right for i,,u u something)'OU shouldn·,h..v-. 10 worry abou,. Lei us do mework for you. Our comp~hcruivc. compcci1h-cl,wycrs program i• undcrwrincn bj•Tr,vckrs lnsurana,. If grat Stt\'icc, stabilny~nd fmincUI~riry art>what you cx-pcccfrorn your iru-urancr comp.1ny, co.llJohn Ad,m Gerdts•• 1,800-,13-9160. ALtsOUTH Travelers lns u rance ...... rra,'tlrrsCrou;;t 178/ MAY1995 THEALABAMA LAWYER Maj or Medical. Provides personalized comprehens ive coverage to Lawyers, employees , and eligible fami ly members. The Southern Professional Trust is totally underw ritten by Contin ental Casualty Company , a CNA Insurance Company. Life Family Term Life. Provides benefits for Lawye rs, spouses , children and employees. Coverage through Northwestern National Life Insurance Company. Security Disability Income. Features "Your Own Specialty" definition of disability with renewa l guarantee and benefits available up to 75% of your income for most insureds. Coverage through Commercial Life, a subsidiary of UNUM. Peace Busin~ Overhead Expense Insurance. A financial aid to keep your office running if you become disabled. Coverage through Commercial Life, a subsid iary of UNUM. from ISi If you're a Lawyer practicing in the State of Alabama , Insurance Specia lists, Inc. offers the finest insurance coverage anywhere. We're here to help with all your insurance needs. 33 Lenox Pointe NE AUanta. GA 30324·3172 EST. 1959 404-814-0232 aoo-241. ns 3 INSURANCESPECIAL ISTS,INC . FAX: 404·814-0782 DISCIPLINARYR EPORT Disbarments Sheier admitted that he converted the remainder of the estate • Micha.el Stanley Sheier, a Birmingham lawyer, was dis asseu lo his own ust. Disciplineimposed-DISBARMENT. barred from the practice of law by order of the Disciplinary COMPLAINT Tll'O (ASBNo. 94-092(-Sheierwas retained 10 Boord,Panel II, for engaging in conduct involvingdishonesty, incorporate a business and paid a fee of S600. He failed to fraud, deceit and misrepresentatio11l11 v iolation of Rule 8.4(c): incorporate the business and did not return the fee to his for failing to safeguard client property, for failing to promptly client. The client filed a complaint with the bar in this matter deliver funds to a client belongingto that client and for failing in March 1994. Although the complaint was sent lo Sheler to maintain client funds in a separate account in violation of with a request to respond on two different occasions,he failed Rule 1.l 5(a), (bl and (c); for willfullyneglecting a legal matter to do so. Disciplineimposed-suspension from the practice of entrusted lo him in violation of Rule 1.3: for Failinglo provide law ror six months. competent representation to a client in violation of Rule 1.1; for failing lo keep a client reasonablyinformed in violation of CO/tlPLAJNT THREE (ASBNo. 94-1191-ln November1993, Rule l.4(a): for terminating representation of a client without Sheier was retained lo file habeas corpus for a client and protecting that client's interests in violation of Rule 1.16; b)• received a fee of S 1.500. He perfonned no legal services on knowinglymaking a false statement of a material fact in a dis bthalf of his client nor did he refund any or the fee. The client ciplinary matter in violation of Rule 8.l(c); and for failing lo filed a bar complaint in April 1994. Thereafter, Sheler was respond to a lawful demand for Information from a bar disci requested to respond LO the complaint but failed to do so. Dis plinary authority in violation of l~ule 8.l(b). Sheier was found cipline imposed-DISBARMENT. guilty by the DisciplinaryBoord after hearing in the following COMPLAINT FOUR (ASBNo. 94-099]-ln June 1992.Sheler mailers: agreed lo represent a client in a Social Security disability COt,fPLAJNT ONE (ASBNo. 94-066)-ln 1992. Sheler was appeal. Owr the next 16 months. the client attempted to con retained in an estate matter by the executrix of the estate. At tact Sheler several times a month and could only leave mes that lime, the c~tate consisted of a house, bank account or sages on his answering machine. Sheler did not return his accounts, securities. U.S. Governmentretire ment benefits and client's calls. In August 1993,Sheler informed his client that he personal property of an undetermined amount. The following had a meeting with an appealsjudge In Octoberand wouldcon year Sheier caused the house to be sold for approximatelyS71, tact his client concerning when and where to meet. In Decem 198. Although the four beneficiaries of the estate promptly ber 1993. the client called the Social Security Administrntion returned documents sent to them for execution. the)• heard Officeand was informed that his filewas inactiveand had been nothing further regarding the estate until the latter part of returned to Baltimore, Maryland. lie asked that the file be 1993. During this time. the beneficiaries made numerous returned to the local Social Security Officeand. after reviewing requests of Sheier for information to which he did not It. determined that no appeal to his denial of disabilityhad e\c-et respond. In November 1993. Sheitr sent each beneficiary a been filed nor had any other informationbeen requested. ~ check in the amount of Sl0,000 but they heard nothing there client filed a bar complaint in March 1994to which Sheier did after. In February 1994, the beneficiariesfiled a complaintwith not re.~pondafter being requested to doso. Discipline imposed the Alabama Stale Bar against Sheier for failing to complet.e suspension from the practiceof law for six months. the probation of the estate and for falling to provide any infor COftf PLAJNT FIVE (ASB No. 94-1801-!n February 1994. mation regarding the estate, including its size. Sheier was sent She,er was appointed to represent a criminal defendant in the a copy of the complaint and requested lo respond to it but appal of his criminal conviction. In May 1994.the clerk of the failed to do so. Hewas sent a second request by regular and court of criminal appeals informed Sheier by letter that the certified mall and again failed lo respond. Al the hearing. appellate brief should have been filed 111that court on May2, 1994.He was also advised that If he did not me a brief within seven days, the Disciplinary Commission of the AlabamaSta te TB.EPHONE FACSIMILE Bar would be informed. Sheier failedto filea brief and the case (?OSI)28-9111 tlOSll26-Ul6 was remanded to the circuit court with instructions that ANN A LEE GIATTINA Sheler be removedfrom the case for causeand a new counsel ATTOIINEl"MEMSFROF AI.AJIA\tA PARSINCE l'll!l be appointed. Disciplineimposed-DISBARMENT. COMPlAINT SIX IASBNo . 94-190(A)l-1n July 1992.Sheier Ann.-.Lee Oununn, r .C Th< Pl.u.iBulld,n,i •• M...,,._,t,.Otl' 180 I MAY 1995 THE ALABAMALAWYER chance for a successful appeal. During 1992, the criminal Sheierwas removedfrom lhe Rollof i\ttorneysand disbarred defendantWM forcedto sell a home that he had inherited from from the practice of law by order of the Supreme Court of his parents to pa)' Sheier's fee. During his incarceration, lhe Alabamadated February 7, 1995, effectiveJanuary 26, 1995. criminal defendantgave Sheier powerof attorney to handle the (Prior public discipline considered: two three-year suspen proaeds from the sale. He also stored his householdgoods and sions) made arrangements with Sheier to pay storage payments of $70 per month. Sheier failed to pay the storage payment and • Birmingham attorney William Eugene Rutledge was dis the householdgoods were sold at public auction. Although lhe barred from the practice of law in the State of Alabamaeffec defendant ha., attempted to contact Sheier on numerous OCCll· tive January 20, 1995, by order of the Supreme Court of sions, Sheler would not return his telephone calls. Sheier Alabama. Rutledge's disbarment was based upon his having alleges there is no money lelt in the criminal defendant's executed an Affidavitand Consent to Order of Disbarment accounL However,h e had refused to provideany accounting of basedu pon his felony conviction In federal court. these funds. Disciplineimposed. DISBARMENT. On June 12, 1992. Rulledge was found guilty in the United COMPLAINT SEVEN IASBNo. 94·1081-ln 1990,the Alaba· Stales District Court on charges of making falses tatements to ma Department of Mentlll Health contracted with Sheler to a government agency, making a folse statement on a loan incorporate ten support groups and was paid a fee of $750 per application,and embezzlemenlfrom an employeepension ben group. Sheier failed to provide the Alabama Department of efit plan. !Rule22(a)(2), Pel. 92-02] Mental Health with copies of the Articles of Incorporation of each support group although requested to do so on numerous Suspensions occasions. One of the support groups to be incorporated was • Birmingham attorney J. Scott Langner was suspended the ObsessiveCompulsive Disorde r Support Group of Alabama. from the practice or law in the State o( Alabama for a period of In June 1994, Sheier was contacted by the vice-president of 30 days, effectiveFebruary 7. 1995, by order of the Supreme that group and informed that the group had not recei,•edthe Court of Alabama.Langner·s suspension was based upon his Articles of Incorporation or Bylawsand that the organization plea of guilty to charges that he had engaged in ethical mis was not listed by the AlabamaSecretary of State. Sheler admit· conduct as a lawyer. IASB Nos. 92-193. 92-544, 93-232, 93. led that the Articles of Incorporation were not on in the me 373(6) & 94-031J probate court in Jefferson County but that the original docu ments were still in his computer. He provided lhe client wilh a copy o( the Articles of Incorporationat that time. Uponreview. the client delennined thal the Articlesof lncorp0ralion provid ed were not the Articles of Incorporation of the Obsessive Compulsive Disorder Support Group bui were Articles of [ZJMore Chapter 13 Incorporationof an entirelydifferent group. In his response to a bar complaint. Sheler submitted a copy of the Articles of Incorporation of the ObsessiveCompulsive Support Croup. TrusteesWant The articles submitted by Sheier were actual!)' Articles o( Incorporation for the Support Group of Mentally Ill Artists which had been altered by Sheler to appear lo have been pre PLAN13! pared for the ObsessiveCompuls ive Disorder Support Croup. DisciplineImposed.suspension from the practice of law for six months. [ZJMore Bankruptcy COMPLAINT EiC/IT IASB No. 94-090)-lnJul y 1993.Sheler was retained by a client to me a bankruptcy petition and paid a fee of $320.The client explained to Sheier that he wanted to LawyersSubmit file bankruptcy in order to protect his truck from being repos sessed. After Sheier was retained, the client called him on PLAN13! numerous occasions but Sheier would not return his calls. Sheier did not filea bankruptcypetition on behalf of his client DEMODISK • REFERENCES • MONEYBACJC GU ARANTEE and the client's truck was repossessed. Discipline imposed DISBARMENT. CO/lfPlA ll\ '1' NINE JASBNo. 94-211]-ln July 1993. Sheier CALL800 BEST-7-13 wasretained In a divorce/custodymatter and paid a fee of $868. Within 48 hours. the client informedSheier that she no longer desired Lopursue the matter and wanted a refund. Sheicr ACHAP7 **13 agreed to refund the fee less court costs which would be approximately$100. Thereafter, he did not refund any or the SpecialtySoftwar e • 1111S . Woodword • RoyalO ak, Mich. 48067 fee and rcruscd lo return the client's phone calls or to accept registered mail from her. Disciplineim posed-DISBARMENT. THE ALABAMALAWYER MAY1 9951 181 • Pelham allomey NickeyJohn Rudd, Jr. has been suspend· work done by a vocational rehabilitation expert This expert ed from the practice of law by the DisciplinaryCommission of providedservices to several of Thrower's worker's compensa the AlabamaState Bar for noncompliancewith the 1994Client tion clients. As certain cases were settled, ThrO\,er did not pay Security Fund Assessment. Rudd practiced law in Birming the expert_By August 26. 199'J.Thrower had only paid S995on ham. The suspension is effectiveFebruary 15, 1995. !CSP No. the outstanding balance.On that date, Thrower issued a check 94-041 on his trust account for im,oicestotaling S2.380.This check was refused twice by Thr'Q\,'t(s bank. Thrower paid S4.i60 in • Montgomeryattorney DavidColeman Yarbrough was sus No,-ember1993 and promisedto "hand deliver" the balance o( pended for a period of 45 days beginning February 21, 1995. the invoicesby April 26. 1994. He failed to do so, and a lawyer Yarbrough plead guilty to willfullyneglecting a legal matter representing the consultant filed complaint in the matter. entrusted to him. The DisciplinaryBoard imposed the suspen a IASBNo. 94-2361 sion followinga hearing on the discipline issue. Yarbrough agreed to handle ~ serious car/truck accident case for an out • On l'ebruary 3, 1995.Anniston atto rney G. Coke Williams or-state plaintiff. 13etweenJuly 1989and August 1992 he com· received two separate public reprimands with general publica municated infrequently with the client. but always assured tion. The two public reprimands were based on Williams' that things were being handled properly.J n August 1992, the pleading guilty in two separate matters to having violated his plainllfrs father requested a copy of Yarbrough's me. Afler profession's codeof ethics. receiving the Ole. he le.1medthat the case had never been filed. In one matter, Williams agreed lo represent a client in a The statute of limitations had expiredon May21. 1991. In the criminal matter. However. he failedlo quote a fee to the client, file was a letter which Yarbrough ostensibly had sent to an telling the client not to worry about his fee until the mattu insurance adjuster declining a S75,000settlement offer. The had been concluded.Th a,31lnble"hen you need 11, and by lelter. L E G A L w11hou11he necessny of Eventually the client learned that Willis was no longer in ndd1ng• full•t1meassocrn te or R es e a r c h private prnctice. bul had become an assistant district attorney. clerk. The client then filed a bar complaint against Williscontending that he had paid him a fee lo represent him in the parole Wnh access 10 1he S1u1cL..,w L1brnryand Westin", we appeal, and also to seek a reduction or his sentence through prov ide fas1and e(lic1cn1service For deadhne work. we the federalcourt. con deliver ,nronnnuon 10 you ••• commonearner . A copy ol the bar complaint was sent to Willis with the Fedcn,I Expre Bg DEBORAHALLEY SMITH and WILBURC. SILBERMAN ing there was no issue of fact as to a claim under the policyremained unpaid SUPREME COURT breach of duty, and in granting a five months arter the lire, the plaintiffs OF ALABAMA motion in limine precluding introduc sued Auto-Owners alleging breach of tion or a report made by an inspector contract and bad faith refusal lo pay or OSHA lnspccllon report admissible for the Occupational Health & sarety lo timely investigate the claim. Auto· as exception to hearsay rule Administration (OSHA). The OSHA Ownersdefe nded lhe action on the poli Smith u. lnlernalionalPaper Cc., MS inspector's reporl included a statement cy raising Lhedefense or arson. 1921699 (February17, 1995).Theplain that an employeeo( the premisesowner Auto-Ownerspresented the testimony tiff appealed from summary judgment had told an employeeof the contractor o( the regional and deputy stale fire for the defendanl premises owner in a that the wall did not need to be braced. marshals who testified, based upon wrongful death action. The plaintiffs The trial court granted the premises "spallln1r of concrete in the room decedent, an employee of an indepen owner's motion in limine to preclude where the lire starttd, that the origin of denl contractor. died when a brick wall the accide:nlreport on the ground that the lire was incendiary. However. the collapsed on him. The plaintiff alleged the report contained hearsay. On evidence indicated that samples taken that the premises owner breached its appeal,the Court nottd that a common by the state in,-estigatorswere negative duty to providea safe placeLo work when law exceplion existed to the hearsay for acceleranlsand that a dog trained in it did not provide bracing for the con rule for written records and reports of sniffing out accelerants was brought to tractor to Installagainst the brickwall. public officials under a duty to make the house and did not detect any accel The issues raised on appeal were them. The Court also noted that al erants. The derendant's expert testified whether the circuit court erred in hold- though both the employee of the con that the (ire was incendiary in origin tractor and lhe employeeof the premises but was unable lo idenliFy the actual owner den led that the statement had ignilion source. or offer any direct or been made, there was no evidence of Indirect evidence that either of the any motivationon the part of the OSHA plaintiffs set the fire. The evidence AUTOMOTIVE inspector to falsify his reporL Thus, offered by Auto-Owners showed only there wasno indication that the report that the Ogdens were present in the RELATED wasnot trustworthy. house when the lire started and that The Court therefore held that the cir· they had the Ol)portunityto set the fire. LITIGATION? cuit court erred in holding that the In an effort to show a moli,-efor set OSHA report was inadmissible. The ting the fire, Auto-Ownersoffered evi report provided substantial evidence dence that the Ogdenshad had financial Automotive Consultant that the premises owner advised the difficulty and had filtd for bankruptcy and Exper t Witness contractor as lo whether it should brace four years earlier and that Mr. Ogden the wall311d thereby undertook to provide had recently applied ror additionalLem , lhe decedentwith a safeplace lo work. life Insurance for himself and $25,000 Chflrl es Reynold s on each or hi$ children. The Ogdens. Bad faith claim properly submitted to however, testified that they had never been in better financial condition. In 40+ years expe rience ju,y Auto-OwnersInsurance Cc. u. Ogden. addition, it was undisputed that the in all phases of the MS 1930368(February 10, 1995). Auto Ogdens wrre not informed until arter aulomob i le industry Owners appealed from a judgment the fire that the lire insurance policies entered on a jury verdict awardingdam had been approved.Further. the undis ages for bad faith refusal to pay an puted evidenceindicated that the value Phone 970-60 I 0 insurance claim for personal property of the personal property destroyed in destroyed In a lire. The rmted home of the fire exceeded$50,000. the plaintiffs. Mr. and Mrs. Ogden. Auto-Ownersmoved for directed ver One PerimeterPark South caught lire and one of their three sons dict on the bad faith claim and the Suite IOON was killed and another seriously Ogdens moved for directed verdict on Dinninghom.A lnbamn35243 injured. They had a $25,000 policy of the contract claim. The tria l court insurance covering their personal prop erty with Auto-Owners. When their Co11t1i1vedon page 186 184/ MAY1995 THE ALABAMALA\1/VER '' "LEX!S®MVP gives 11s unlimited 011/ine access to 011rstate's law for a flat, low mo111hlyfee withoutthe usual 011/ine tnmsaction costs." U n.limited use of Alabama sta te "\¥hat I like best about LEXIS MVP is what law on LEXIS for $130* a month. l call, 'ooe-scop shopping .' r not on ly get com plete case law, I gee statutes, attorney genera l opinions, bills and regulations ...all kinds of use- A memberse I.F..,\'ISR'1lf .VF.XIS n,-, ~tmr/ 1hNlrm11thof Rm! /ilsn:"t Pt'()flt1tidIM .• 11ad1t twkl' /ltt,u,. 0 IP95, LE.• Y.IS-Nl!.XIS , 1t dif.i~11of Rm/ E/1«,Wf'IM. All rif.111rrsrrr.wl. •SNIJ.jll'Wtih'i,11,r /tri« . ..+k..+i11rl•M ,ppll(a/Jltub1ail'ffll• /tt . St4t<11,W I.Mt/ 1t1m w iNdlillM.Al rW°m»rhtis ,, JN1rt11rr,·,, 1M 111, JinN 186/ MAY 1995 THEALABAMA Lt\WYER made a misrepresentation in the appli employer and that the court must pre include (l) whether the services were cation if the misrepresentation was lhe sume that the employer and the necessary lo the administration of, or fault of the agent without the participa employee have a friendly working rela beneficialat the time at which the ser tion by the insured. tionship. If that relationship does not vice ,vas rendered toward Lhecom ple· The Supreme Court disagreed with exist the employer must show the court Lion of the case : (2) whether the the trial court's conclusion that the what the true relationship is. in order services were performed within a rea Pord Life representative as a soliciting to challenge the employee for cause. In sonable amount of time commensurate agent could not legally bind Ford Life, con tras t. the party opposing the with complexity, importance and nature noting that the evidence viewed in the employer should not be required to of U1e problem, issue or task addressed; light most favorable lo the plaint iff show prejudice in order to challenge and (3) finally, whether the compensa indicated that the Ford Life representa the employee because prejudice in favor tion is reasonable based on customary tive knew that Miller had health prob of the employer must be presumed to compensation charged by comparably lems bul issued the policy anyway. exist, and the trial court is therefore left skilled practitioners in cases other than Therefore, the Court reversed the entry witho ut discret ion in ru ling on the in bankruptcy. of summary judgment in favor of Ford challenge for cause. The Court there The amended act then sets out a neg Lifeo n lhe breach of contract claim and fore rejected CSX's claim that the trial ative that the court shall not allow com the bad faiU1 claims. court erred in fai ling to remove the pensation for unnecessary duplication, juror for cause because none of the or for services not reasonably likely to Court establishes rules for challenge.s employee's voir dire responses demon benefit the debtor's estate or necessary to jury service of employee of party strated that he would be biased in favor to the administrat ion of the case. It CSX Transportation, Inc. v. Dansby, of or against CSX. does provide for being paid for prepara MS 1921512 (February 24, 1995). Dans tion of a feeapplicatio n, bul limits such by, a retired employee of CSX Trans to an amount based on the. level and portation, sued CSX for damages under BANKRUPTCY skill reasonably required to prepare the the PELAa lleging that he had sustained AMENDMENTS application. The question has been con a hearing loss from exposure to air sidered as to how this is different from horns and locomotive noise during his Professional fees after 1994 what was former ly practiced by the employment as a locomotive engineer amendments courts. My reaction is that formerly the with CSX.The jury returned a verdicl Bankruptcy Code Section 330, which cases varied considerably according to in favor of Dansbyfor $105,000 In com amended effective October 22. 1994. the particular judge and that this prac pensatory damagesand CSX appealed. applies only to cases filed on or after tice probably will continue. However, On appeal, CSX argued that the trial that date. now the court has an admonition that if court erred in refusing to remove for In the original 1978 legislation, the the services are nol reasonably likely to cause a prospect ive ju ror who was bankruptcy lawyer was ent itled to be benefit the debtor's estate , or if they employed by CSX.CSX eve ntually exer compensated al rates the same as that were nol necessa,y to the administra cised one of its peremptory strikes to charged for comparable non-bankrupt tion of the estate, no compensation remove the juror. The Court noted that cy services. Prior to the 1978 Code. at common Ja1va n employee of a party bankruptcy attorneys were paid on a was subject lo challenge fo-r cause. theory of "economy of administration". Deborah However. the C-Ourth eld that the better Rates at that Lime were lower than All&y Sm ith Oeooral\ AlloySm,lh ,s viewwas that if the employer makes the those of comparable non-bankruptcy a mamborof thoBirrn. challenge it must make a showing of legal services. Accordingly, bankruptcy Inghamlwm o l Rives& Pa:erson She gradual· prejudice or bias on the parl of its practice generally was not soughl out, ed froml he Unf,..ersity employee when it challenges for cause and as a matter of fact, was looked upon ot Tenne$see and ,e ce:MKIhet law degree the employee's qualifications for serv with some disdain by the "ivory-tow fromlhe Univors11yof ing as a juror. Without such proof. the ered" law firms who simply did not AlaoamaSchOOf DI trial court cou Id not strike the employ encourage bankruptcy expertise among Law ee for cause. On U1e other hand. the its members. party opposing the employer of the Section 330 of the 1978 Code was Wilbur Q , prospective juror should be allowed to enacted to place bankruptcy practice on Silberman challenge for cause the prospective a par, but with the 1994 amendments, Wi1btJtG Sclborman, o1 Ille 8im11ngham!!Im cl juror under the common law rule with we may be retrogressing. The amended Gor~. Silberman. out a showing of bias or prejudice. section which, after allowing reasonable Wiggins & Childs! OI• The Court explained the two-pronged compensation for actual necessary ser tended SamfordUn1 4 \l'Orsity and1ho approach as a recognition of the unique vices and rei mbursemen t for actual Unlve,s,ty ol AJabama relationship between an employer and necessary expenses, states that in deter andea, ried hiS la w de its employee. The Court held that the m in ing reasonable compensation in gree l1omlhe Unlvf:fil relationship implies a partiality on the ty'sSchool ot Law He add ition to time spent and ra tes OO'Jet1 Iha bankfuptcy parl oi the employee in favor of his charged , con tains added factors to decisl~ THE ALABAMALA WYER MAY 1995 / 187 should be allowed.l'ormerly, it was dis petition in which he claimed exemption August 1989,Brentwood, owner of a S4 cretionarywith the court as to whether of the paymentsdue from the insurance million facility.filed a Chapter 11 peti· to allow a r« ror derendinga debtor in company. He also had notified the lion. Ad valorem taxes on the facility an objectionto dischargeor exceptinga insurance company to discontinue pay.. became due on October I. 1980. Under debt from discharge. Certainly.there is ments to the bank and to send them to Tennesseelaw. the taxes became delin no benefit to the estate in such a him. l'irst Bank did not contest the quent March I, 1990 after which there defenseand even ir it might be consid e,emption claim. In an adversary pro was assessed interest of l percent per ered necessaryfor the administrolion of ceeding filed by Sloma, Bankruptcy month ond a penalty of 0.5 percent per the case, the prohibition is wrltten In Judge Briskm 188 / MAY1995 THEALABAMA LA WYER MaconWeaver with outstanding accomplishments and sad loss. including being District Attorneyof NOW, TIIEREF'ORE. BE IT RE llt:REAS.Cod. in his infinite Madison County, Alabama, United SOLVEDby lhc liuntsville-Madison wisdom, has taken Macon Slates District Attorney for the County Bar Associalion that our bar WWeaverfrom o ur midst,a nd. Northern District of Alabama, and and our community have suffered a WIIEREAS,M acon was a lifelong United Stales Ma,iistrale, and in all of great loss in the passing of our broth resident or Il untsville, Madison Cou.n his professional undertakings, he er lawyer, Macon Weaver, and that we ty, Al~bama, and, stood for the rule of law as the sympathetically join with his wife, WHEREASh e worked tirelessly in cementing factor in our society and Tillie Weaver. daughters, Teri l'aulk, his youth to support his family, and in our government, and, Ricky Sheldon and Lennie Hopkins, at an early age entered the United WHEREi\S,duri n!l all of this time. and other member of his family and States Armyfrom 1vhichhe was dis Macon Weaverwas a lovingand de110t· loved ones in mourning his passing chargetl In 1945as a 1st Lieutenant ed husband and father, a friend and while honoringhis nam~,and by this earning the Purple lleart as well as companion to many within the bar resolution, we in some small way other medalsand citati()!l5,and, and mall)' in Huntsvilltand Alabama. extend to his familyour sincere and WHERt:AS.thereafier, he entered loved and rtsp,ected for his wit and heartfelt sympathy.com~ion. and the Universlt>'or Alabama and was wisdom.his kindnessand reason,and . condolenet. graduated from the University of WHEREAS.Lhe I luntsville-Madison Alabama School or Law and was County Bar Association wishes to Benjamin Russell Rice admilled to practice in the State or acknowledl(e to ourselves and lo our President Alabama, and. follows as well as Lo the family and Huntsville-Madison County WI ll~REAS, his pracl ice wasre plete friends or Macon Weaver. our deep Bar Association WilliamH utchins Cole Virgil K. Sandefer PleaseHelp Us Birmingham Birmingham 11wAlobaml, L,Juyer " Memorials" Admilled: 1943 Admilled: 1946 sectionis desigJ, THE ALABAMA LAWYER MAY 1995 / 189 opened a private practice in Dothan, slight of hand and sense of humor to Alabama.Within the legal profession entertain those around him. He lived he wM respeciedby his peers for his life lo its (ullest and shall be remem de\'Ollonto his clients. To his exten bered not only for his contributions si\li!clienlele he was not only an able lo the community but also for his allorncy but a friend and confidant. quick wit and j oy or living. I-le made li e exhibited faithful and dedicated the livesof those he touched fuller. service to the profwion and to the A deeply Christian individual, courU In which he practiced. As a I luntley Johnson was ,-ery active m past pro:sident of this bar association, his church. As an elder and clerk or he served the bench and bar with the session. choir member and Sun grace ~nd dignity. He was a man who day School teacher at Evergreen was willing to give of his lime, both PresbyterianChurch. he cared about HuntleyJohnson professionally and personally, to his religion ;ind its principles. In those who sought to embracethe law. times of trouble he leaned on his IERf.:ASHuntley Johnson. a I le was uniquely mteresto?din the faith and when he saw others m need respected and dislmflu1shed arts. I le listened intently to the Muse he used his faith to aid and comfort W:member or the Houston of Mu~ic and followed his heart in them. 1lis examplesof Christian liv· County Bar Association, died June this regard. An accomplished player ing have served as touchstones to 27, 1994,and, o( numerous string instruments. he others. WHEREAS. this Association ort,n used this talent not only to Our colleagu~wa., a fine attorne>·. desires to record this memorial of Ttlaxand renect on his own life,bul He was a devotedhusband and father our colleague and lo publicly recog to entutam us as well as others with whose loss i~ felt keenly by all who nize some of the achievementsof his his involvement in the Dothan Dix knew him. I lis many contributions professionalcareer; ieland Band, the Si::ACTOrchestra to our professionand our communi NOW. TliEREPORE, BE IT RE and various Bluegrassbands. He was ty qualify him as most deserving of SOLVEDTHAT Huntley Johnson was a gifted teacher of music and his our g,at.efulr~collections. a man of many talents and who pos pupils will long chi,rish the time he Rufus R. Smith. Jr. sesseda keen intellect and sharp wit spent wilh them. President After receiving his law degree from Hunlle.y Johns on was also an Houston Count)' Bar the Universityof Alabamain 1966,he excellen t magician whn used his J\$socialion Alabamaand the Umwrsity of Alaba outstanding results for his clients: AlbertGordon Rives ma School of Law. During World and, War II he served as lieutenant com· WHEREAS.the Executive Com· lll"1EAS, Albert Cordon mander in the United Stiltes Navy. mittee or the Birmingham Oar Asso Rives. an active member of Hewas a 32nd degree MnM>n.mem ciation desires to express our dctp the Birmingham Bar Associ W ber 11fthe Sons of the Amuican Rev, regard for Albert Cordon Rh-es and ation, dtlli!rled this life on Septem olution. and the Alabama Historical our profound sense of loss in his ber 26. 1994.at age 93; and. Suc1dy; and. passing. WH~;REAS.Albert Cordon Rives WIllmEAS, Albert Cordon Rives IT IS, TI-IERl~l~ORE. HEREllY was a skilled athlete. having pl,,yed R~:. was n fo Lmderof the firm of Smith, SOLVED, by the 1;xecutiveCommi ttee iootbnllat the Universityof Alabama, Windham,Jackson & Rives,which is of the Birminghnn, Bar AssOcilllion. where he later served as assistant now Rives & Petersan . During his that this Resoluhon be spread upon athletic dm!ctor:and, early years at tht bar. he was the minutes of this Commille.?.and WHERF..AS.Albert Cordon Rives engaged primarily as a defense that copies be sent to his surviving wasa lifelongresident of Birmingham lawyer. but most of his legal career nephew. Robert A. Rives,a nd to Lhe and wasa member of Southside Bap wM devoted to the representation or law nrmof Rives& Peterson. tist Church. ha11ingserved as board injured ra.ilroademployees. Through chairman, trustee and deacon;and, meticulous preparation. dogged J. Fredric Ingram WHEREAS,Albert Cordon Rives determination. unswerving loyalty. President graduated rrom the University of and skillful advocacy, he achieved Birminghan1Bar Association 190/ MAY1995 Tl IE ALABAMALAWYER and in 1966 she became a United seling troubled youths. She was a EleanorOakley Gordy States -Magistrate for the United strong sup110rrerof the American Red IIEREAS Eleanor Oakley States District Court, Middle Distrkt Cross where she served as executive Cordy, a respected and dis of Alabama, a position which she held secret.iryof the MoustonCounty C hap Wtinguished member of the with distinction until 1978. ter. assistedin establishingWater Safe Houston County Bar Association, As a bankdirector she cared greatly ty classesal all city and county pools. died March31. 1994.and: for the needs orthe peopleof C-Olum served as a first aid instructor, and WIIEREAS, this Associationdesires b1a, Alabama and the surrounding trainedkey per.sonnelwith localindus, to record this memorial of our col areas. She brought to this position a try. She also worked with the Army league and to publicly recognize unique perspective which enriched Community Services and other area some of the achievementsof her pro those "1th whom she did business. semce health and welfareagencies to fes.~irmalcareer: As a farmer and limber grower she coordinateservices for the needy. NOW,Lherefore, l>e il resolved that: recognized the struggles of tJ1osewho Our colleaguewas a tirelesschampi ~leanor Oakley Cordywas a lady of worked by her side and as a result on of the 0111iressedand needy. She many facets. As a lawyer she was developeda sense of understanding of was a worthy adversaryand excellent greatly respected by her peers. her an individual'splight which made her jurist. She Jemonstrated a. character clients, and the courts in which sh( decisions while on the bench and and integrity that was an example to practiced. After receiving her law beiore the bar not onl~· grounded in the entire legalcommunity. Her many degreefrom the Universityof Alabama legal principles but alw grounded in contributions to our profession and in 1931,she and her husband opened dignity and moral correctness. our community qualify her as most a privatepractice in Dothan,Alabama. Mrs. Cordy's achievements within deservingof our gratefulrecollect.ions. She discontinued her practice as she her community were numerous and Rufus R. Smith, Jr. devotedher energy to being a wonder were the resull of a tireless effort to President ful and caring mother. In 1965 she serve those who surrounded her. She Hou~ton County Ba.r returned to the active practice of law gave generouslyof her lime in coun- Auoc intlon NATIONAL COURT REPORTERS ASSOCIATION HONORS THE TOP 130 COURT REPORTERS IN THE UNITED STATES Test results are in for the NCRA'sR egistered DiplomateRe poner (RDR)examinatio n. Of the association's33,000 members, 3,000 Registered Merit Reponers were eligible ror Diplonune iesting. Examinauon for this new cenification wasgiven tlus past Novemberand consisted of a comprehensivewritten knowledgetest. The RDRis the highest level of certification availableto coun repomrs. To become a DiplomateofNCRA. a reporter must exhibit exemplaryskills in repomng. transcript produc:tion,management, education, marketingand professionalissues. One should be able 10 draw dfectively from personal and outside resources,be involved m coun reponing-related activitiesan d serve as a consuhan1or lea&:r to anomcys, other reponcrs and coun reponing personnel Of the l 30 coun reponers in the nation who passed the RDR examiimtion on the first uy, these [our are from Alabama: Debra Amos Isbell(Isbell & Associates, Mobile) )emy M. Oum (Oum. King & Kilpatrick,Montgomery ) Roy Isbell (U.S. District Court and Isbell & Associates, Mobae) Mickey L. Turner (Foshee & Turner. Birmingham) TIIEAI.ABAMALAWYER MAY1995 1 191 CLASSIFIED NOTICES RATES : Members: 2 free hsllngs of 50 words or less per bar member per calendar year EXCEPT for "pos,t,on want· ed" or "position offered" listings - $35 per insertion or 50 words or less, $.50 per addlllonal word; Nonmemb er s: $35 per Insertion of 50 words or less, $.50 per additional word Classified copy and payment must be received according to the following pub lishing schedule May '95 i ss ue -deadline March 31. 1995. July '95 i ssue -deadline May 31, 1995; no deadllne eX1enstonsw,11 be made. Send classified copy and payment, payable to The Alabama Lawyer. to: Alabama Lawyer Classifieds. c/o Margaret Murphy, P.O. Box 4156, Montgomery. Alabama 36101. Forensic Handwriting and Document INSURA NCE EXPER T WIT NESS: SERVICES Examiner. Twenty-eight years experl· Bad faith lire claims. Origin and cause ence in all forensic document problems. consullanVexpen. Licensed adfuster for MEDICAL EXPERTTESTIMONY : HCAI Forrm;rly, Chief Questioned Document 29 years. Certified hre and explosion wiff evaluateyour potentialme ATTORNEY JOB S: lndlspensablo LEGAL ASSISTANT : Montgomery receivedal the Alabal11llStale Bar monthly Job·huntlng bulletin fisting 500 olllce . Experience required . Stro ng 600 current Jobs (government. prlvale organizational skills, attenlton lo detail after March30, 1995w i/1110/b e sector. public Interest), RFPs. and legal and good communication skills a must. search opportunities tor attorneys al all Responslblhtles Include drafting incor· renecled in the 1995edition ol The levels of experiencei n Washington, DC, pora llon doc umen ts. emp loyme nt nallonwlde and abroad . Order tho agreements. asset purchase agree Alal>omoBar Oirectorg. Nahonal and Federal Legal Employment ments and other corporate documents. Moveover Nexis. NowWestlaw has more business andfinancial information . MO\l!01,:r Nexis-: l'if1'• percenlmoo; rull-tcx 1market and IVl-:SllAW. One11:une. O,,e sourre fo r all WF.:>11A~ • nowolT<.'l'i !heIL>gal J z 1 1ge lllll ,...... ,, tlcm ong.nai,y L ~ 20<5. 20<6 (1984). f,n,...,. yOMSlne (A.a t!176J _ . .,_....,or-w• ~'Y -has repf;.,ceQC01lll'T'WI" emec:wc,n 5 COnnlrt_ ..... I •fllds.:_____ 1he allde -*ii nu.I DI Cir\-bl 15 2M S .._,,,_'--,Yt6t2o:233. • " OMIO'\dlNa c:asesl .,. I IWclw.,, & See aloo -• ,.-, ~ f 2a 7~ 737 P,d - 1_.,.,-Gaz,r,g 711e'- ol - co,'""''*''*'by theor,&,a,y- - CU! 0, 1976) -"'- ~taw, 66 N Y.U LRev 1332 (t991j W Kip V,oous;.~ 1MlUQflN /Nd· -·· ...dllhl