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T H E AL A BAMA LAWYER Vol. 64, No. 3 I May 2003 On the Cover: Mobile, Alabama

A COntltlercialcugbo:u wo rks itSwny up lh.cMobiJc River in frontof the new Mobile-ConventionCe nter. The 2003 AlabamaSL11e Bnr Annual Me.:tingwill take ploceai weAdam's Mark Hotel, tltc largedark building on tlte Jen.side of tl1e piCt\lre. - l'lio10by PaulCmfll/arrL JD eat res 150 Profiles

166 The Two Most CommonFatal Defects in Petitions for Writs of Certiorari By Douglas Inge Johnstone, Associate Justice , Supreme Court of Alabama

169 Civil Law Notaries:Something New In Alabama By Boyd F. Campbell anti Ro11altlG. Neiwirrh

173 uLawyersRender Service "- Alabama State Bar 2003Ann ual Meeting

186 "Miss Liz Is Here" A Lawyer WhoMakes a Difference By Pamela H. 811cy

188 ConsiderationsIn PurchasingLong -TermCare Ins urance By Michael A. Kirrland

19 2 Alabama Lawyer Assistancefoun dation Update TheMessage of Hope By David Wooldridge

1 II I: \ I t H l \I :l I. \ n > I fl 145 ThtAlablma.. Sr,ttS.r PO Bo><156 . Mo>ttgo,n,, THE _.,__ St.Iii.... -··--Ed,I C-MNen 0...... ALABAMA _--­...._l_.._ Hoa_W_ ... ; , •-IC-Jt...... •°""".OC..-... --·--•'-A°""""'- LAWYER c.,y, ~G- ...... • ln~lhAP•••-- · 9-l- ...... -- ·li<°"""....._...... MdMA.ulland.M< I , · -1 ... -... •-W-• JIMOS..... -- ·"'-IS!ndlnl... ~ · -E-- ·J.wl-- ·~0- Vol.64 , No. 3 ~ May 2003 Oftlc11n ,,,.,o Grav.rm.1- --·--- JretLl MlflliolLllulllr '1,1 C,mt fnri A , ..,_ G.- 1"' CmriLW _,, I Grut4' C,tlU"'.. , Ci,t,d. Pliliphfff """­ Sot,,, !Cnwt. U. Palle., Cmll It 1111>U.'l!ml, -wTllldogo. JlthC.- WdllnJ Ci1ylt• Cllc,,t.J,l'1M - 1....- 32.11 -291> 1.-P,11 Qnu 1, S...,,,.. i Go,N..,_r..1- 3Jnl-~ liial H.llmgde<\ O,,,l :11"1C'•M. '*11""" II A~ -11,. lillt C""'l DavidT ,Ut,111M 11mb11rs, lt,

ALABAMA b, ATE IIAll lll'.AJ>QUARTERS 5"\ PF ltl-"'1s 4110e.ucrA...- ~~.AL361D-I 133,) 26!1-151S• PA)( l)J4)2bl-6J IO• &nml m(~ ,~ \\cb~.-.w..W..cq ~ 182 Et.taliw °"""""" ~ tl . Sorum ~ S..-,a" rm.,.... Dttt.'nm .... laud E&«w>ol -Ow«••• ..J.J,IHI Kapa(-) ~ .Votius ,...... ,,I.Ip.II CPR ClnL -5lom)' uop:y AOR A...... ,,1 AWll&* _.ladcx tb1.ml 1N ALAIIAllA STAT'&BAIi Cl!Js'll?R FOR PRO•-.;ss 10NAL ltt;Sl' Ol'o-SIBIU rv STAfl' 4U Daitr A,...... ,. M°'"-· AL 361D-I(33,) 26'>-1515• FAX());II ?61-4311• E-mail:mf .. ~ c..-,io,,-, --l.A--, Md...,. O.,c,p-,. C1al. -- ,_ S.O"")'IO°'*'>IC..- \'n,__ ~ Cl

146 M AY 20 OJ Judge Thomas King Brigadier General, Army National Guard Birmingham , Alabama

Capt. Mary Scott Hunter Assistant Staff Judge Advocate Pope Air Force Base, North Carolina

TheLawyer PublicRelations Committee reoently worked with Ticheli Productions of Birmingham to produce two new television announcements that are now on the air statewide: • "Serve& Protect" highlights members of the Alabama State Bar who are serving their country here and away. • "lawyers Render Service"focuses on how lawyers help during times of change. LOOK FOR THEM IN YOUR AREA!

I II I \ I \ ll I \1 \ I. ·\ U > /; I( 147 F1-ed D. Gray

m <... CD -c:,.. C TheWor ld Is Changing .,C, <-

ince l became the 126thpresident of the members in support of the current war on terrorism. Alabama SooteBar. drastic changes have This includes members of the Army National Guard. Soccurred in Alabama. the Uniled States of' Anny Reserve.Air National GunrUnited States of America is at war Bar has been very active this spring. assistiog citizens with Iraq and thousands of Americans are fighting in and auomeys with federal, state and local laws that tbe Persian Gulf area. We do not know when the war penain to mili1arymembers and their familie.sduring will encl,o r how much it will cost. However, many times of mobilization. "Audemusjura nostrnedefend ­ lives will be lost. We are able to sec U1ewar as it is ere"-·we dare defend our righis- is a phrase on the being fought live on television. minds of many Americans these days. Active, gunrd and reservejudge advocates of the Alabama State Bar The impact of war with Jraq is now felt in Alabama. are continuing to support military commanders. mili­ Oo March 26th. Pfc. HowardJohoson, Jr., age 22. of tary members and their families in these perilou~ Mobile. was the first Alabamian to make the ultimate times-a nother example of lawyers renderingservice. sacrifice for his country in this war. Reservecompo­ Wejoin Americans everywhere in supporting our mili­ nents of the armed forces augment the active compo­ tary troops here and abroad. nents of the United States military in the perfom1ance of military duties worldwide. Alabama ranks seventh l am now in my ninth month as presidem. My, bow among the states in the per-capita number of National time has nown! Carol and I have represented the Guard and Reserve personnel mobili,.ed.Alabama 's AlabamaState Bar across this nation. Immediately National Guard is one of the largest guards in the after my inauguration.we ntteoded the National nation, numberingabout 15.000.The State of Alabama Conventionof the National Bar Association in San bas mobilized over 6,760 guard and reserve military Francisco, an associationthat I served as its 43rd prcsi-

148 MAY 2 00 J dent. We traveled to the American Bar lhe commissioners authorized the cre­ moreinfor n1ation in the nearf uture.Thi s Association meeting in Washington, DC, ation of a new Appellate Practice Section is anot.her example of lawyers rendering where we joined and met with the and adopted by-Jaws for that section. service. National Conference of Bar Presidents and the Southern Conference of Bar TI1e year 2003 marks the 40lh anniver­ Finally, accept this as your personal Presidents. Al the meetiog of ibe NCBP, sary of tl1eUnited States Supreme invitation to join us for lhe 2003 ASB I was elected to the executive council for Court's decision in Gideon v. Annual Meeting in Mobile, July I 6th- a period of three years. So, I wW be Wainwright, 372 U.S. 335 (1963). In a l 9lh. This oonventionpromises 10 be one activelyinvo lved in the NCBP until 2005. landmark decision by Alabama's Justice of the most outstanding in the history of Hugo Black, the Court held that a defen­ tbe bar. The theme is Lawyers Render I was the first speaker for the first-year dant in a state court has a right cocou n. Service. Some of the speakers are Robert students at the University of Alabama sel if charged wilh a felony. Despite the Shern,an, esq., presenting "How 10 School of Law during its orientation pro­ clear call of 'G ideon's Trumpet,• what Persuade With More Power and gram. l challenged them to study hard, would appear to be a fundamental right .Lolluence";Dennis Archer, incoming finish law school, pass the Alabama bar has not yet been fully implemented. president of the American Bar examination and develop into outstand· While srnting a right, lhe Court provided Association; ProfessorJa mes W. ing lawyers. During my presidency. I ao means or mechanisms for funding the McElhaney, presenting "Planning 10 Win: have addressed several bar associations right. Left to their own devices, the states Trial Tips and 'foctics''; Millard Fuller. across this state, including the Morgan have been less than cliligent.Wh ile the esq.. founde, and president of Habitat for County Bar Association in Decatur, the defense of indigents in Alabama has Humanity, Inc.; and many more. Binningbam Bar Association and Magic improved over the past 40 years, clearly City Bar Association in Birmingham and there is much to be done. President-Elect The world continues to change, as it the Mobile County Bar Association. Bill Clark is beginning plans for a has do ne for centuries, and lawyersco n· Additionally, I served as keynote speaker Symposium on Indigent Defense next Linue to render service, as they have done at the Thurgood Marshall Symposium for fall to try lo ensure that Gideon's call for centuries. • BALSA at Cumberland Law School. We does not fade. You will be receiving attended lhe Mid· Winter Meeting of lhe American Bar Association and lhe National Council of Bar Presidents, and participated in its Executive Council Meeting in Seattle. I served as keynote speaker and represented the Alabama State Bar at Faulkner University; Southern Conference of Bar Presidents Opposing Counsel put in Key West; Martio Luther King, Jr. Celebration at Ea.\tStro ud~burg them to sleep. University of Pennsylvania; and lhe Brooklyn Academy of Music. I addressed the Alabama Conference of Circuit Judges, participated in lhe Oklal1oma Bar Association's Diversity Forum and delivered lectures at the We are their University of the Virgin Islands in St. Croix and St. Thomas. In addition, I have n1aintained an active trial practice.What wake-up call. I have ttied to do during this bar year is 10 demonstrate that lawyers render serv­ ice: service to lheir clients, service 10 the Today, jurors expect to be entertained in the courtroom. It's a proven fact that community and service to the profession. visual communication helps Jurors overcome the low tolerance they have when exposed to volumes of complex or uninteresting information. In addition 10 our 1ravels, I bave con­ Our certified trial consultants can wor1

T II I \ I \ H \ l/ \ /, \ 11 ) f. H 149 Pursuo111 10 the Alabama Slate Bar's rule govt!ming the election of preside111-elec1.the following biograpf,icol ske1chesOf!! provided of Douglas McEll') ' and Cain<'O'Reor Ill. Mc£/l'y and O'Rear wen! the qualifying condidatl!Sfor the position of preside111-elec1of the Alabama State Bar for tile 2003-2004 term, and the winner will assume the presidency i11July 2004.

ouglas McEJvy wnsborn on June 29. 1944 in Montgomery, :Ind is m.1rriedto Eleanor Cmf'l D McElvy. Eleanor camed a master's degree m music from the University orSouthern California and has 1uughtvoice ai the Univcrsi1y of Alabamn nnd Shclmn Stale. Douglas and Elcnnor have five children. Paul. the oldest. is a graduntc of the Culverhouse School orAccounting at the University or Alabama. and is a CPA working in the w.vuudit division or BellSouth in Atlanta. Jooathan. a graduate of theJOUf · oalism deportment or the Univcrsi1yor Alabam,L is the publi1hcr/edi1oror n,,Otmo110tis nmes . Eli1,nbclh McElvy Spiller is u special education gradu­ ate from the University of Alubama and is an in1e.r­ pre1cr for the hearing impaired. Keren is a senior In high school nnd is active in nn1lonaldebating compcti· tioM. Ja~ Douglas is in the ninth grade and is acti,•e in golf. baskelball and baseball. McElvy attended his first two ycnrs or college at St. Bemord College in Cullmnn. lie earned a bachelor of science degree from the Universily of Alabama with u major in :tccountlng. and gmdumcd from the University of Alabama Scbool of Law in May 1971. He was licensed by the Supreme Court of Alobaroa to practice la" in August 1971.Aflrr grnduatioo from DouglasMcElvy law school, McElvy clelked for Judge CharlesWrigh1. chief judge of the Alabama Coun or Civil Appeal~. He then directed and was the i;ole attorney for a legoi service, clinic for the poor In Lee County. Following Public Defender Commission. He plnycd an lnstru· this. he t1cccptcd a st:iff position with the Center for mental role in drnfting and promotini; the enactment Corrcctionnl Psychology at the University or Alabamn. of the 'l'uscnloosa County Judicial Commi.sion, which where he taught juvenile justice. C01TCCtionsand relat· refers nominations for openjudicial positio115to the ed coursesl1Dd was iovol,'Cd,n planning for correc­ Governor. He hasalso ser\'ed ns special assistant auor­ tiooid systems. ney general for the State of Alnb3mn. McElvy has practiced low since 1971. He is admit· McElvy hns olso beeo very octivc in the Alnbamo tcd 10 pmcticc in the United State.~Distric t Couns for State Bnr. i le wns elected 10 the ~mte bar Board of Bar 1he No,,hern. Middle nnd Southern districts of Commissioners in 1991 and hos served :is :i bar com­ Alabama. nnd also in the U.S. Coun of Appeals for missioner •inc~ that date. On three scp:irntc occasions. the Eleventh CireuiL In 1978. he was ndmined to he was asked by the then-president of the Alabama practice before the Supreme Coun of the United State Bnr 10 serve on the ExecutiveCotmcll, and eoob States. McElvy basbeen very l>Clivcin the Tuscaloosa time he was elected 10 that position by a vote or the County l3nrAssociation, servingon the Executive bar commissioners. McElvy was elected vice-presi­ Committee, as secretary/treosurer. and as president of dent of the AlubumnState Barnnd is currently serv· the n1scaloosu County Bar As.~ocintionin 1990-91. ing. ai ~,creq uest or President Fred Grny, n fourth He wns olso president of Uic Tuscaloosa County tern, on the BxccutiveCouncil. During Mcl:Jvy's

160 MAY 200 3 tenure as bar commissioner, he has been extensively involved u1 10 the Board of Directors of the Chaniber of Commerce of West numerous commiuees and projects with the state bar, Some of Alaban1aand also served as vice-president. chairing the these include serving as liaison to the Alabama Supreme Court, Governmental Affairs Division. He was awarded the on the Alternative Dispute Resolution Comrninee, on the Distinguished Service Award by the West Alabama Chamber of Character and Fitness Committee, and currently as a panel mem­ Commerce in 1989 and was named the Member of the Year in ber on the Disciplinary Board, Panel rv. lo addition, he helped 1990. For ten years he served as the vice-chairman of the Zoning develop, and now acts as a mediator on, the Alabama State Bar Board of Adjustment for the City of Tuscaloosa. He supported Committee on Resolution of Fee Disputes. the West Alabama Area American Cancer Society by chairing ilS McElvy was elecled to 1heAlabama Law Foundation Board of Cancer Crusade and sitting on its Board of Directors. He was Trustees. which oversees investment of IOLTAfunds and evalu­ fom1erlyon the Board of Directors for Big Brothers/Big Sisters ates and approves grants for 1he JOLTAfunds. He was also elect­ of Tuscaloosa Couoty, ru1dis presently vice-president of the ed a Fellow of the Alabama Law Foundation.At the request of Metropolitan Board of the YMCA. McElvy was the founder of Dean Kenneth Randall. he allowed his name to be submitted for the West Alabama Transplant Trust Fund, which is a nonprofit nomination to the Board of Trustees or the Universityor Alabama corporation that raisesmo ney and financially supporis West Law Foundationand was elected to that foundation. which over­ Alabama citizens in need of organ or bone marrow transplams. sees the University Law School Foundation funds ru1dactivities. McElvy also helped initiate the Tuscaloosa Coalition for In addilion 10 McElvy·s work with Joe.al and state bar associa­ Charac1er and was appointed by the mayor of Tw,caloosa as 1he tions, he is also a certified mediator, being certified by the chainnan of the City of Tuscaloosa Coalition for Character. Tbis American Academy of Auomey Mediators. He has served for initiative has been responsible for many public projects, promot­ years as a lecturer for continuing legal education programs. ing good character among the citizens of Tuscaloosa, as well as sponsored by 1he Alabama Bar lnstitute fo,· CLE. the University initiating character education in the public school system u1 of Alabama School of Law and the Alabama State Bar. He has Tuscaloosa. A long-time member of First Baptist Church of been ru1adjunct professor of Jaw at the University or Alabama Tuscaloosa, McElvy has been active as a deacon and has served School of Law and now teaches for Oak Brook College of Law in many other capacities in t11echurch. and Government Policy. He has also been the past president or McElvy prac1icedin Tuscaloosa for many years with the flTUI lhe Christian Legal Society of Alabruna. of McElvy & Ford, PC. which he co-founded 25 years ago. He Active in many community affairs, McElvy was a graduate of still maintains an office in Tuscaloosa, but tbe McElvy family Leadership Tuscaloosa. and has also serve.d on 1heSteering and has recently relocated 10 Montgomery, where he is also associat­ Planning Committee of Leadership Tuscaloosa. He was elected ed with the finn of Azar & Azar, LLC. •

Small Firm Practi tio ner 's whether there is any interest Section. The Section would:

we must identify lawyers who • g. If you or someone you know M focusedon small firm issues, please

I II I: ·\ I. I H l 11 l / . l l\ > /. U 151 nioc O' Rcurw:is born in Jasper in 1950 nnd mtcndcd the public schools there through high C school. Coinc's fother. Caioe O'Rcnr, Jr., bus been in privntc law prnctice in Jasper since 19-19. Caine obtained his S.S. degree from the University or Alabama In 1972. At Alabama. he was a member of Phi &ta Kappa. JllSOnSand ODK, and seM'd a_t vi« · president orthe <1udcn1body. Caine attended law school ru the Univers:,tyof Virginia nnd obuuned his J .D. degree in 1975.After law scbool. he served in the United States Am1ynnd Army Reserve as u cnpmin. Caine bas beco in private prnctice In Mobile with the firm or HandArcndnll for 27 years. He is currently cbailllllln or the J'inn'•lillgntion section. His procticc now prioclp;illyinvoh •es c:ommen:ial-and busin~­ n,Jated litig;uion.although he has handledall types or civil trials and 3Jl9C"ISover the years. He is lldmiucd to practice in the Supreme Coun or the United Stnies and the Fifth and Eleventh circuits. and he has tried cases in all thn:e federal districts and numerous circuit couns in Alabama,ns well as in couns of otltcrJuris­ dictions. During bis luw curccr. Caine bas been active in the Alabama Stntc Bnr nnd other professional organilll· lions. He served on the Board or Bar Commissioners for the nwumum three tmns from 1992 through 2001. focusingheavily on mnuersim'OJving lawyer discipline. During that time. Caine servedon the Disciplinary Board and was n member and Interchair­ Caine is acthoein hii church and civic affairs. He is man of the Disc,pllnnryCommission from 1994 3 member of Ashl(tnd PinceUnited Metl1odis1Church. lhroogh 200 I. Me also served for nine years as n mem­ where he has served a, chairman of the Administrolivc ber of the Mobile Bar Associniion'sExecutive Board and (IS u Sunduy School teacher. He ls n trustee Commit.tee nnd wns previously a member of lbe and board member of 1he YMCA of Mctr0poli1an Mobile Bar Association's Grievance Committee. Mobile and served thnt organization as board chair­ Caine is n member of the American Bar A.ssocintion man. He currently enjoys serving as a Big Brother and Utigruion Section. the Al.abanuiDefc11ase Lawyers a member orthe boardof the Big BrowcrslBig Sisters Associruion and the InternationalAs$0ciation of program in Mobile. He has previouslyserved on the DefenseCounsel . He basserved on the facultyor the board of dir«tors of Goodwill Industries or Mobile IADC's NutionnlTrial Acndemy and has wnucn and and on oihcr civic board.~.lie is active in the alumni lectured on topic;.involving trial techniques. tnal associations of both the Universityof Alabmnn nnd the strategy and ethics. lie hos been listed in The Best Universityor Virginia. Lawyers in America for n number or years. Caine and his wife, Gwen, have tllJ'ee sons. •

152 MAY 2003 ALABAMASTATE BAR 2003-2004 Committee Preference Form

AlabamaState Bar MissionStatement The Alabama Sme Bar is dedicated 10promot ing tbe professional responsibility and competence of its members, improving tbe administrationof justice, and increasing the public understanding of and respect for the law.

Invitation for Service from Bill Clark, president-elec t The Alabama State Bar invites you to volunteer to serve 011 a state bar committee. We need your help to continu e to accomplish our challenging mission . Please choose a commillee in which you are i111eres1ed. We hope you will join us; I appreciate your willingness to serve.

AppointmentRequest Tem1s begin August I. 2003 and expire July 2004. Indicate your top three preferences from the list by marking I, 2 or 3 beside the preferred committee. __ Alob,11110law yer. Editorial Board _ _ Lawyer Referral __ Alabama unvyer, Bar Directory __ Lawyer Public Relations Alternative Methods of Dispute Resolution __ Lawyers Helping Lawyers Character & Fitness __ Military Law Client Security Fund _ Quality of Life __ Community Education __ Solo & Small Firm Practitioners __ Fee Dispute Resolution Unauthorized PrJclice of Law __ History & Archives __ Volunteer Lawyers Programs __ lnsurance Programs Judicial Liaison

Background Information

Name: ------Fimi: Address: City: ______.,,1ate:.______Zip:______Office Telephone:______Fax: ______

Email Address'------Year of admission to bar:______Suggestions For New CommitteesOr Task Forces:

Instructions For Submission Please print !his form and mail it 10: Alabama State Bar, Attention: Programs, P.O. Box 671, Montgomery, AL 36101-0671. You may fax this form to (334) 261-6310. We must receive your form on or before May 9••, 2003 to consider you for a com­ ntiuee appointment. Please remember that vacancies on existing committees are extremely limited as most commi11cc appointments are fi llcd on a three-year rotation ba.sis.However , several commiuees are new this year. If you arc appointed to a committee, you will receive an appointment letter informing you in Jun e 2003. You may also download this form from our Web site, www.alabar.org, and submi1the complc1edform via e-mail to [email protected].

T II E \ /, \ R \ \f \ I. l U ) I: N 153 KeithB . Nom,an MoreBenefits For You!

ver the course or the next several mon1h~.we clients. including moni1oringcompliance chnnges. will introduceyo u 10 three new endorsed prepamtion and filing of annual rnx fonns and panlci­ Omember beneficprograms lhacwill help you pant clistrlbucion,. In udditlon, lhe program offers personally and prorcssionally. (They may not be new ongoing comnnmicntions10 provide participamswhh 10 some of you who may now be using these M'l'Vicc.~.) lhc information they need 10 make knowledgeable They arc the AmeriC'llnBar Assodntion Retirement choices with thdr retiremcncfunds. CD < Program . a.odtwo elecll'Olliclegal rescarch services. The uuly amuing chingabout !his progmm l~ lh:u :,i: Lo_is!awund Vt>rsusLaw. lhcrc is ou1-of-pocke1cost for plan ll11che money purchase and 40 I (k) plans. with scvcml cute­ other member benefits and services 011 the bnr's Web gories or invesuncntop tions. As pan of the program's she, wwmolnbar.org,under the "members" cnic!)ory.1 services, the program 1rus1ec,State Street Bonk, hope Ihmyou will hike time 10 review these new benefits assumes certain fiduciary responsibilitiesfor ilS nnd decide if they ore nppropria1e ror you. •

154 MAY ?003 ALABAMASTATE BAR PublicationsOrder Form The Alabama State Bar is pleased to make available to individual attorneys, firms and bar associations , at cost only, a series of brochures on a variety of legal topics of interest to the general public. Below is a current listing of public information brochures available for distribu­ tion by bar members and local bar associations. Brochures ------To Serve the Public $10.00 per 100 Qty _ $ __ ... Highlights and details of bar public service programs from the TO SERVE THE PUBLIC video presentation. Law As A Career $10.00 per 100 Qty __ $ __ _ ... Information on the opportunities and challenges of a law career today. Lawyers and Legal Fees $10.00 per 100 Qty __ $ __ _ ... A summary of basic legal procedures and common legal questions of the general public . Last Will & Testament $10.00 per 100 Qty __ $ __ _ ... Aspects of estate planning and the importance of having a will. Legal Aspects of Divorce $10.00 per 100 Qty __ $ __ _ ... Offers options and choices involved in divorce. Consumer Finance/ "Buylng On Time" $10.00 per 100 Qty __ $ __ _ . . . Outlines important considerations and provides advice on financial matters. Mediation/Resolving Disputes $10.00 per 100 Qty __ $ __ _ ... An overview of the mediation process In question-and-answer form. Arbitration Agreements $10.00 per 100 Qty __ $ __ _ ... Answers questions about arbitration from the consumer's perspective . Advance Health Care Directives $10.00 per 100 Qty __ $ __ _ ... Complete , easy to understand information about health directives in Alabama.

ACRYLIC BROCHURE STAND $ 5.00 EACH Qty __ $ __ ... Individua l stand imprinted with attorney, f irm or bar associat ion name for use at brochure distribution points. One stand per brochure is recommended. Name to imprint on stand: ------­ Mailing Address:

Shipping & Handling $ 5.00 TOTAL $ ___ _

Please remit CHECK OR MONEY ORDER MADE PAYABLETO THE ALABAMA STATE BAR for the amount listed on the TOTAL line and forward it with th is order form to: Susan Andres , Director of Communications, Alabama State Bar, P.O. Box 671, Montgomery, AL 36101

T II f." A L 1\ 8 I\ \I ,\ L ti u· }' £ R 155 The Alnbamu Coasml Foundation (ACF'), n non-profit environmental membershiporgn nization, has elected Neil C. J ohnston M the 2003 president of the ACF BOllrd of Directors. Johnston l< a member of Hand Arendall. LL.C . He i! lisced in the Best Lawyers in America for Environmental Lnw, ruid bas served as cbainnan of the EnviroruncotalLaw Section of the Alabamn S111tcBar . He frequently lcct= and writes on topics of penniufog. real estlltc. erosion conuol, wetlands, consetvation casements. endangered species, 1111dforestry.

Johnston has served on lhc Alabama Coastal Foundation Board since 1999.

Johnston's pet project is the Alnbnma Constnl Kids Quiz, a conservation scholarship competition for lifth•gradcrs. For more informu1ion.co n1ac1the ACF office at (251) 990-0002, or go 10 www.alcoastalfo1mda1io11.org. •

Expand Your Practice To The Mississippi Gulf Coast.

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If you're sntdiing for I home on the MississippiGull g1dliu offices,by day, month or )'UI' . Plus. th

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156 MAY 2003 Pro Bono Award Nominations CLE TheAlabama State Bar Comm itteeon Volunteer Lawye r Programs.!former ly the Committeeon Access to Legal Seivices).is seeking nominationsfor theA labama Opportunities StateBar Pro Bo noAward . Nominationfo rmscan be obtained by contact ing: The Alabama Mandatory CLE LindaL Lund, director Commission continually evalu­ Volunteerlawyers Program ates and approves in-state, as AlabamaState Bar weUas nationwide. programs Post OfficeBox 671 Montgomery,Alabama 36101 which are maintained in a com­ 1334) 269-1515 puterdatabase. AU areidentified by sponsor, location, dateand The AlabamaState Bar Pro Bono Award r ecognizesthe outstanding pro bono specialtyarea. For a complete effortsof attorneys,law fi rmsa nd law studentsin the state.Th e awardcr iteria includesbut is notl imitedto thefollow ing: thetota l numberof probo no hoursor listingof cunent CLE opponu. complexity of casesha ndled.impact of thepro bona work and be nefit for thepoo r. particular expertise providedor the particularneed sat isfied, successfulrecruit­ mento f otheratto rneys for probona r epresentation.and prove n commitment to deliveryof quality legal seivices to thepoor and to providingequal access to legal seivices. Nominationsmust b e postmarkedby May 15 , 2003and include a completed AlabamaState B ar ProB onoAwa rds ProgramNomination Fo rm in orderto be consideredby t he Committee. •

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11/1- . 1/.lllllll / ll\l/H 157 Tlte Alabama Lawyer no longer publisltes addresses and telepltone11111nb ers 1111less tire announcement relates to the opening of a newfirm or solo proctice. Please conti111,e to semi in a1111ounce1111mtsand/or address changes to the Ala bama State Bar Membership Department, al (3.14) 261-6310 (fax) or P.O. Box 67), Montgomery 36101.

About Members Among Firms J ames C. Ayers, Jr. announces the opening of his The Alabnmn League of Municipaliti es announces office at 300 Highway 47. South, Columbiana.Ph one 1ba1 Mary Ellen Wyat1 Harrison has joined their (205) 670-5575. offic e as a staff auomey. ,John R. Fronks, Jr. announces the opening of his Alford, Clausen & McDonald, LLC announces office at 2820 Cohunbiann Road, Suite 21O. that Benjamin H. Kilborn, Jr. and Benjnmin C. Birmingbnm. Phone (205) 313-3966. Heinz have joined the linn as assoeiaies. Douglas C. Freeman announces the relocation of his Bainbridge, Mims, Rogers & Smith LLP office to 5281 Vauglln Road. Montgomery.Phone (334) announces that Sela E. Stroud has jo ined the fim1 as 264-2000. nn associate. Stacy 8. Buoper announces ~1e opening of her office at 206 South Pine S1teet,Su ite 207, Florence. Phone Berkowitz , Lcfkovits , Isom & Ku shner PC (256) 764-40I 0 . announces that James C. Wilson, Jr. has become a shareholder of the Einn. Kimberly Gri ffin Kervin announce$ the opening or her finn locatedat 1300D East Maio Succt. Prattville. Richard G. Brock announces d1a1 American Legal Phone (334) 358-0085. Searc h LLC has opened o branch office in New York, NY. Patricia K. Martin announces ~1e relocation of her office 10 2090 Columbiana Road, Suite 3200. 8rw1son & Associates PA announces that Daniel R. Binningham. Phooe (205) 823-4552. Scltuler has been named a partner in the firm. Andrew H. McElroy, 111announces the relocation of Burr & Forman announces that Bruce A. Parsons his office to 502 TIiie Building, Comer or 3,. Avenueand has joined the rum as a paMer in LileBinningham 2 1. Street, North. Binningham. Phone (205) 328-2869. oHice.

158 MA Y 200 3 Ca banis s, John sto n, Gardner, The firm formerly known as Harri s, U1 und Jason M. Klrscbberg have Dumas & O'Neal announces that Cleckler, Rollis & Shamblin , LLC is become associated with the !inn. Joseph V. Musso and Ian O. RoseoUutl now Harri s, Cleckler & Hollis . toey & Ragsdale annow,ces that have become panners of the finn. Haskell, Sla ught er, Young & William R. Adair, Jr. has become asso­ Cham bless Math PC announces that Rediker, LLC announces that F. Lan e ciated with the fim1. Zack M. Azar has joined the finn as a Finch , .Jr. and N. Andrew Rot enstre ith Johnston, Barton , Proctor & Powell member. and also the opening of its have become members. Donald L. LLP announces that E. Alston Ray, J. Bim1ingham office of Chamble ss, Math Rickerts en will serve as of cou11sel. Patrick Logan and Jam es F. Henry & Azar, located at 2107 5,oAvenue , Mered ith Jo wers Lees, Latartlshia O. have become panners io the finn. North, Suite 200, Birmingham. Phone Watter s, Pa ul W. Fowler, Laura El.Jen Meredith L. McCollum, Th omas A. (205) 251-6565. Lewis, Meegan B. Nelson, and '.furner McKnight , Jr. and Keri Brook e Adams C. Seale, Jr. have become associated have become. associates. Patrici a V. Comer and William Kent with the firm. Upshaw announce the fonnation of Cain J. J(ennedy , Raymon d L. BeU, Aili, Rill , Car ter, Franco, Cole & Comer & Upshaw .LLP. Offices are Jr. and John W. Adams , Jr . announce Black PC announces that G. Wade located ill 2 !07 Second Avenue, North. tbe fonnntion of Kennedy, Bell & Adams HarUey, Jr . and Erika Perr one Tatum Birmingham. Phone (205) 250-7670. PC with offices m 117 East Clark Avenue, have become members. Ja yne L. Priclwcl. Phone (25 l) 452-1321. Dennis P. Dore, Samue l a Lanier, Harr ell and David W. Henderso n have R. Daniel Noey and John F. Fannin j oined the finn a.~ a5-socia1es. Leitman, Siegal & Payne PC announce the formation of Dore, Lnn ier, announces that Bubert G. Taylor has Rui c, Fernambu ctU, ,,__, ?0.,- ._.,__, __ .-.,...... IOOIUlllOO~ltll 1>J-...... C,.. ll(t ·--(~y, j.4) ,-.. $ta,,c,, !.-Pmd-. CA .. 101. ""'- "') M -...t-..lb' .. ,..,llllllolIll. If, u.,I..,..,,--""*' 1-q/ • ~ lodtjod IO ...... _. C.-.-• ...;,c, announces that Charl es G. Fisher has W!l l• ~Nkl4il-.l__...,l*'OilU!i,._.,.,1ic.9)'_,.•il' •...-se lol....i•1--,....11r1lw.,.....,IMl4 ~-~ l~--llr 1-...tll),..._,ptd ,._., ... •111... _Wlfll MOdl•.._i-M .. CMtci.,fti become director of the firm. Offices are AIOHO,G,1) - ~... " .... on!• olrwa-•·~-u.,nlo;p ...... -n,ttnvd • • 11-- based in Cbauanooga, Tennessee.

I II 1-. \ I. \ II \ U \ I. \ 1\ } /. R 159 London & Yancey LLC o.nnounces Cordo n L. Blair and Jerry 0. J err Smith b3ve become<>!counsel RN!n,ond. J r. joined the fino that JOS4'ph L. Cowan, U nnd J. h:l,e as Stephens. lllllllrons. Hnrrison & Mld1acl Keel have become members of llSSOCiates. Gammons PC announce.-1hatPalriclt the linn. Winston V. Legge, .Ir. and P. Michael G. Nelson has bl."COmeo member of l11e l.ord, Bissell & Brook announces ~1al Cole, fom1erly of Putton, L11tham , finn. llnmnon D. Anthony hnsjoined the Legge & Cole, announce the continua­ Stockham & Stockham PC nnn and will be pmcticingin the r=·s tion of their prJCtice as Pallon, Legge & announces lilac Hunlr_r C. CurroD has Allnnta office. Cole LLP, wilh office; located in become a shareholderin 1he finn. Athens. Ell2nbelh Colson McGlnug,hn and The Unil«I States Attorney's Office. Jam es W. McGlaughn announce the Jnson Peevy announces Ihm be is the Nonhem Districcof Alob:unn,announces fonnation of McClnu ghn & manngingdirector or the Binninghnm chucJohn Bradle)' Felton has joined U1e McGlnughn LLC. Offices arc located at oOicc of APEX LegnJ Suppor t, LLC. oflicc as Assistant U. S. i\uorney in chc 804 Wolnul Street. Gud.sden.Phon e (256) Rogers, Young, Wollsteln, Juckson & Birmingham office. 547-1009. Whillingto n LLC announcesthe clcc­ Wnlloce, J orda n, Rolllrr & Brandl The Do!brui firm of Mo rris, Cary & tlo.n of panner l\Uke Rogers co the U.S. LLC nnnou= thnc Phillip 0. Corley A11d n,m; LLC announce$ that Dan Congress for Alabama·s Third District. and l\llchJlel J. Vele21shave become 'ntlmadge basjoined :u • pann.-r.The The linn continues opcrncion._~ Young, members of the firm ond ll et1lher M. Onn will now operate under die name of Wollstein, J ackson, Wl1iltlngton, Unrvlll , Matt.hew O. Frldy nnd Laura Morrls, Cary, And rews & Tolmad ge Robinson & Russell LLC. M. Jn ckmn n have become nssociates or LLC. Rushton, Stake ly, .lohnslon & 1hc linn. Nathan & Associntes announcesa Garre ll PA announces thut L. Peyton Dennis R. Wen'

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"he lwdif • ~~ l"U'1'IOOr-;;I .int'(.w.-.c;t Cl'l.'Ot'OOBllr'ld &'• At. J .,,· --:;,.,;: .. Ca-;,:, J ·, ~ ~i·' , •1,:-,:, '.j-"-:-C::: R(_)l,1 I ~ r«n '"rr,.n~ Thie otOQrlfT"•• tn.cy one of rho bt'te.1n.~ sot'tw1111to.,Jf company hM aver-fflllOI!'• 334-244-2983 "- Mltlln e-uu.. Socfflll'I BATTAGLIA LAW OFFICE i.uo, ,1 So,vlon Colpoial""' Do<"'"~~~~~~~~~~~~"'"""""' -~~~~~~~~~~-

180 MAY 200) I II I. \ I \ II \ 11 \ I \ H l I « 161 Q

Sa,n Perry Given

Sum Perry Given. a lifelong resident or Binningham, St. Munin's In tbe Pines died October l l, 2002. after a long and distinguished Episcopal Foundation. Perrywo.i career in law and public service. He was n &mduatcor a dittctor or Wilke™'n ln}umnce Ram..ey High School. attended the CitntlcJin Comp.lily and Guaranty Savingi. Chnrlesion. South Carolina, and graduated from the and Loan Association. Uo,vcrsity or AlabamaSchool or Law. He served as nn Perry was a longumc member of St. Luke's off,ccr with the 167th Regiment. 261hInfantry Episcopal Church. where he scrred on the ''CSU')'. He Division, United States Anny in World W:ir JI and later was also affilia1cdwith social and heritage organiza­ !IS n lieutenant colonel with the JJII lnfttouy Division tions as past presiden1of the Redstone Oub and Pbi of the Alabama National Gutll'dwhere he was awarded Delta Theta [rulemlly, and hnd mcmben

162 MA 'f 2003 Judge Williani Clinton Sullivan

TalladegaCounty's legal communitymarlred the end of an cm He was appointed 10 the Alabama Poncm Jury and Instruction wilh lhc dea1hor former Cireuil Judge William C. Sulhvan. 76. Co,nmintt in 1967, and wns 1hc lns1of lhe six original mem­ or Lincoln. JudgeSullivan passedaway on Janunry30. 2003. bers still serving. He was appointed cluurmanor lhe commiuee Althoughbcs1 known for serving as Talladega Coun1ycireu11 in 1975.and held lha1position until be died. judge from 1958 to 1995, Sullivan bad a lengthy Im ofoccom· Frorn 1975 10 his retirement from 1hc bench, he served as a plishmcnlSduring his lifetime. In 1952. a1 lhe age of 25. he wns memberof lhe AlabamaCoun Judiciary, and served on the state elected mayor of Lincoln. He was elected 10 • second term in coun of criminnl appenls and supreme coun on special nssign­ 1956before being appointed 10 lhe bench. menl on various occasions. A native orBirm ingham, Sullivanspent the mujori1yor hl s Following his reiiremenl, he renewed his licens~ t.o practice lifo in Lincoln. Arter gradunting from Lincoln High School, he lnw ond served in of counsel capacity wiLl1 the nrm of Love, spenLtwo ycnrs In 1he Uniled State.~Navy, from 1944 to 1946. Love & Love, P.C. in Tallndcgn. He gmdun1cd from the University of Al"bamo School of Low in Sullivan is survived by bis wife, VlrgininC. Sullivan of 1949.n nd opened n prac1icein Leeds before re1urning10 Lincoln; his brother-in-low, Roben Parker of Annis1on;a niece, TnllndcgnCou ruy in 1952. Fmn P. Quarles or Binningbnm; 1wogreat-nephews. George He was o member of Lincoln United Melhodist Church, Tankersly and Parker Thnkcr..ly.both or Birmingham: and where he once se.rved ns chairmnn of lhc officinl boon.I for five numerous cousins. consecutiveycm . He also seTVcdon lhe board of din:c1or.i for - 'n,e Daily Home• Nationnl Bank ofThll~a from 1971 10his dctl1h While on 1hc bench. Sullivan graduated from lhc Nntion:il College or S1111cTrial Lawyersin Reno in 1967.11.nd w;is prcsi· denl of the Alabama Circuit Judges' Associa1ionfrom 1974to 1975.

Bradley, Dwight WilJiam Roden, Emmett Norman Phenix City Florence Admitted: 1960 Admitt ed: 1950 Died: December 19, 2002 Died: June I 0. 2002

Palughi , Delano Joseph Sullivan, William Clinton Mobile Tallad ega Admitted : 1959 Admitt ed: 1949 Died: February 22. 2003 Died: January 30. 2003

1111 1/ 1/111/1 I 1111/R 163 •11111

Roben L MoCu~ey. Jr.

AlabamaLaw Institute Bills

Pending in the legislature are three revisions com­ Constitutional Reform pleted by the Alabama Law Institute: Governor Riley's commission on the constitution of (1) Interstate Enforcement of Domestic Violence Alabama has five topic subcommillees that have made Orders (SB. 6 sponsored by Senator Rodger recommendations. These five areas are: (I) limited Smilhe.rman ) (HB. 42 sponsored by Representative home rule, (2) earmarking of taxes, (3) governor line Joe CaroUters); item veto, (4) requirements of super majority vote of (2) Unifonn Anatomical Gift Act (SB. 99 sponsored the legislature to pass additional taxes, and (5) recom­ by Senator Ted Little and 30 co-sponsors) (HB. 28 pilation of the current constitution with its 740 amend­ sponsored by Repn.,sentative Demetr ius Newton): ments. TI1eLaw Institute recompiled Alabama's consti­ (3) Un.ifom1R esidential Landlord/Teoaat Act (SB. tution with its amendments in 2002. A copy can be 118 sponsored by senator s Bedford, Smitherman , obtained from tlte lnstitute's home page. 'Dial, Ross, Penn, Benton, Ted Little, Butler, Funding Shortage Mitchem, and Lee) (HB. 200 sponsored by represen­ Governor Riley's initial budget reduced each state tatives Laura HaU, McLaughlin, Buskey and Craig agency in the state's Genernl Fund by approximately .Ford), see March 2003 Alaba ma IAwyer. 18.85 percent and each education recipient io the Copies of these bills can be obtained from die Law Special Education Trust Fuod by 6.34 percent. lnstilutc \Vcb site. •v,Vtv.ali.sratc.al.u.s. Pay Day Loans The Law Institute bas also been working for the last There is a concened effon to regulate deferred pre­ several years on drafting a Trust Code for the State of senunent checks. Currently, these pay day loans charge Alabama. It has ju st been inuoduced in the session for up 10 a 550 percent A.P.R. und pawn for tille loans up familiarization. A copy can be obtained from the Law to a 300 percent A.P.R. (House Bill 178). ln.stitute's Web site. Clean Air Act Election Reform Alabama is Llteon ly state that does not have a clean In 2002, Congress passed the "Help America Vote oir act for buildings. Oae of the firsl bilLspasse d by the Act" which requires states to revise their election laws. senate and sent to the house of reprcsen1111ivcs was the The 2000 Presidential election, plus other problems Clean Air Act (Senate Bill 126). brought to light by the Alabama 2002 election, have Uniform Trust Code brought about several election reform bills. Bills likely Alabama, like most s111tes, bas statutory trust provi­ to receive auenlion in the legislature are: (I ) sions but relies greatly on the common law LO complete Conformi11gAmendments required by the "Help its trust law. Much of 1hetrust law in Alabama Code America Vote Act." (2) Automatic Recount, (3) Title 19 dates back to nc1s passed over 60 years ago. Standardized Polling Hours, (4) Appoiotmen1of The Alabama Law [nstitute did revise Alabama· s Alternative Poll Workers, (5) Restoratioo of Rights of Principal and Income law. and the legislature enacted Convicted Felons, (6) Voter ldeofrfication Required, the revision efl'ecLivc January I, 2001. See Ala. Code § and (7) Presidential Preference Primary Election Dates. 19-3A- 101 el seq. The Law lastitute bas been asked to revise Alabama's 1n2000, the Uniform Law Commissioners prom,tl­ election law during the oext year. gated the first truly national codificatioo of Lltel aw of

164 MAY 2003 mm with the UniformTr,w CaiM a se1 of basic dcfauh among trustees. etc. A trustee may nlso be removed upon ru.les 1ha1fairly, con,iistentlyand clc:ttly govern voluntnry llUSI.~. request of 311qualified beneficiaries showing it is in their beSI h is a dcfouh stntutcfor the lll06l pan becauseterms of the trust intcrcsi and is not incon,iistcntwith trust pu~ lbe 1ru.s1ee instrum,:mwill governeven if ioconsiStentwith the sm1u1oryrules . is entitled to a re-.ison:ible compcnsnlion which the coun may Alnbamo firin bcgnn work on Clupter 9, the Uniform Pnadtlll review and change. Investor chnptcr or the Cod~.in March 2000. Aller completing Article 8-Dutles and Powers of Trustee . These this section. the committee. chaired by Birmingham 1111orney arc the basic fiduciary oblignrions of o trustee. These obliga­ Rolph Yeilding, began " review or the Uniform Trust Lnw in tions include the duty 10 carry out the 1n1s1t md 111111of loyalty April 2002. The committee hns met opproxima1ely every I wo wh.ich requires the tnostcc 10 manage 1he 1nos1so lely for the months ovc.r the past three years. beneficiaries and avoid conflicis of imercst between I.be Tite Tr11.fl Codi!i~ divided into 11 articles: trustee's imerest and the beneficiary's interest. They also Article 1-General Provisions and Definitions include impartiality. the oblign1ionof prudent ndministmtion to Article 2-Judlclal Proceed i ngs . Deals with juris- incur only reasonable cost and apply the 11US1cc·sspecial skins diclion over a trust in uny stn1e.The place of the odministralion when there is a reliance on these !kills. A trustee may delegate of the tru~l is the place with jurisdiction over the llUSteeand ccrtnin duties and powers bot is held lo a prudent standardof beneficiotics of the trust. The trust is not supervised by court appoinunent when doing so. This act alsocontains an updotcd unless !here ,s a proceeding by an interested person that invokes lis1of specific powers of the trusu.,e. the coun. Article 9-Prudent Investor Rule . This article Article 3-Representation. This article deah wi1h imposes the obligation of prudence ,n the conduct of im·est· the issues of who may represent whom in transactions or pro­ mencs. Jt resembles in this respect the "reasonable person··rule ceedings relating 10 a 1n151, It onswcrs the question or who may of tort law. be 1he ngcntof whom. Ltprov ides a clear rule lbm the trus1cc Article 10-Liabllity of Truatees and Rights of represents 1he bcneliciarles of the trust. Some of ii is common Persons Dealing With Trustees . This article provides sense ns u conservutor represents the ,vard. l'or remedies when there is n breach or nn oblig:,1ion by the Art icle 4-Creatlon , Valid ity , Modification and trustee nnd under whnt cireumsumccs the1·u is n right of action Terminatio n of a Trust . A trust is crea1ed when propeny by anybody. ll also includes Ilic tru.iec's immunity from per· is tmn&fcrred10 a trustee wilh the intent to create a 1rust rein· sonal liability when doing busin~< with others on behalf of the 1ionship.There mus1be n dcfinilc beneficiruy or the 1ruS1mu5t trusL A trust insl!Umcntmuy not woivc or vn.ryony obligation be • chnritnble truSI. or o llU5Ifor animals. ll is nOt necessary 10 of good fnitb or have an exculpatory clause for reckless indiffer­ haven llUSlins11Unien110 create a lnJSL Oral truslSare allowed ence of the ttustee. bot the s111ndtlrdor proor is the higher ~clear and convincing Article 11-MisceUaneoua Provisions. evidence'"MJUtdrud. 1nere arc clear clefauhrules thnt apply upon Other members of the committtt arc: LoVeeda Battle. Douglas consent of the pan,es 101 .he tru.N-fromh ""'"'"' · rights under 1hc 1nast 1111d1he trust is no longer o revocable mist.

I II I \ I 1 II \ \I I I t I\ l I H 165 •

hi, :,niclcdoes not undertake 10 addre.,, any tension between, on lhe one hnnd. lhe practice of the Alnb:imnSupreme Court of T requiring strict compliance wilh Rule 39 nrid Ruic 40. Ala.R.App.P.• :Ind, on the other band.the mand.11cof Ruic I, Al11.R.App.P_ that the_~ rules "'shall be construed so as lo a.mbnbility or lack of probabili1y of mcri1of n claim of e1TOrso concii.ely and recogni1..,1bly!hat lhe ,upromc court can keep apace wilh 1he singgering number or petitions that are r.led, Caveat• I nmbut one of nine j ustices on the Alnb:unnSupreme Court. The discus­ sion in lhis article is my interpretation of Ruic 39 nml Ruic 40 as infonned by the t(llltof 1hoscrules nnd by my pel"SOnalotxcmuion of the other jus ­ tice.,· mterpreuuion, of th0$Crules in actual applic,nion 10 Ilic thousands of ccniornri pe1,uo,is the supremecourt has decided since I have bc,cna mem­ ber. 11ierc ate individualized nlJallCt'Samong thejusuces' n:spccth·e inttr­ prcuu,o~ and 1hercmay be some "' ·olution U1 the mlcrprctntions. The emphtl!iisof tl1u article on the "iwo mos1common famt defects" in ccnior:ui p.,1i1ion~doc,. not suggest tbn1other rcquirenients of Ruic 39 or Rule 40 are nat JUStas critical or that other noncompliance i$ not jus1as fntnlor mon, foml.To nvoid e)lacerbating any mio-irnpres.sionthru this ruli­ cle hns wnmcd ihe bar of nil of thu fn1..1I pilfnlls in Rule 39 ond Rule 40. this nrticlc w,11n ot mention any of the others. In other words, the maxim cxpr,ssio 1111/u. r , •.,, e.xc/11sioalteri11s d oes 1101 op11ly10 this nrticlc i.n its selection rutd discussion of these 1wo common fntnl dcfcc~i. Introdu ction '11\esucces.s of n petition 10 the Alabama Supreme C1111rtfor a wri1of cer­ tiomri 10one of the counsof appeals u.sually dcpenesbu 1n ot In civil cases). ·n1is nrtlclc will discuss these two common fmuld efects In sequence. 166 MAY 2003 -- case that should be overroled,Rule holding adverse to the petitioner, but if 39(a)(l)(E): or the coun of appeals could nol have 6. The trial court or the Coun of Criminal entered its judgment without tacitly or Appeals has committed a "plain error" implicitly holding agai.nst the petitioner tliat "bas or probably has adversely erroneously on some critical issue, then, affected lhe substantial rights of the to couch the erroneous tacit or implicit petitioner,"who has been sentenced 10 holding in terms of a Rule 39(a) basis for death. Rule 39(a)(2)(A) and (0). certiorari jurisdiclion. the peLitionermust first explain. by reference to procedural Failure to Invoke Certiorari Tue petjtion must cite apt authority and substantive facts properly included Jurisdiction and provide factual and legal explana1jon in the petition pursuant to Rule 39(d)(5), The function of certiorari review by for every claim that a coun of appeals why and how Lhedecision by the coun of the supreme court is nol directly 10 has committed an error and must explain appeals t.acitly or implicilJy contains the police the trial courts but to police the the applicability of each basis for certio­ erroneous holding. Rule 39(a)( I )(D)2. courts of appeal (except that. in deatl1 rari jurisdictioo under Rule 39(a) Such an explanation can be accom­ penalty cases, the supreme court may invoked to obtain redress of that error. plished by identifying and explaiaing the redress any "plain error" (as defined by TI1e Rule 39(a)( I )(D) conflict-with­ critical issues presented to and decided role and case law) committed by either binding-preceden1basis for certiorari by the trial court and argued 10 the court the tria.1cour Lor Lhe court of cri1ninal jurisdiction does 1101 include couflic1s of appeals. appeals. Ruic 39(a)(2)(A) and (D)). with court rules:,statutes or even provi· Every holding by a coun of appeals Therefore. a certiorari petition must iden­ sions of the Alabama Conslimtioo or tbc that lhe supreme court would oeed to tify the criLical e1TOr or errorscOmm iued United States Constitution! If a holding hold erroneous in order to reverse IJ1e by the court of appeals in its holdings. by a coun or appeals conmcis with one judgment or the coun or appeals mus1be explicil or implicit. on the rulings by the of these sources of law. any error in the couched in tenns of one or more of the trial coun; and the petition must couch holding must be couched in terms of one Rule 39(a) bases for certiorari jurisdic­ each such error ;n ter,us of one or 1nore or more of 1he other bases of certiorari tion. For insu1nce,if a coun of appeals of the slt bases for cerliorari jurisdiction jurisdictionor in terms of conflicl wilh a were to hold. firs1, lhat the petitioner's specified in Rule 39(a)(l)(A)-(E) (live binding precedentby one of the appellate objection lO evidence was insufficient lo bases available in any type of case) and courts specifiedby Rule 39(a)(I )(D) either: preserve error, second, lhat the evidence Rule 39(a)(2)(A) (one extra basis avail­ I. Construing the role. statute, or consti­ was admissible anyway, and third. that, able only in death penalty cases). Tue lution in a way favorable to the peti• even if the objection was sufficient and petition may aver thal: Lioncr;or the evidence was inadmissible.neverthe­ I . The decision by the coun of appeals less, the error in admitting the evidence erroneously "'initiallyh old[sj valjd or 2. Stating a role of construction of rules, was harmless, then every one of these [alternatively) invalid a city ordinance. statutes. or constitutions which would three holdings would need to be couched a state statute. or a federal statute or require a mling favorable to the peti· in teems of at least one of the six bases treaty,or initially constru(es] a control­ tioner pursuant to the role, statute, or for certiorari jurisdiction in order for the ling provision of the Alabama constitution (for example. the plaio­ supreme coun 10 grant the petition and to Constitution or the United States meaning rule might require an appli­ review the claims of en·or: for, unless all Constitution;· Rule 39(a)(l)(A); or cation of a sta1u1e favorable LO the three of the holdings were erroneous, the petitioner): or decision of the coun of appeals would 2. The error by the coun of appeals have to be affirmed. "affect[s] a class of conslitu1ional. 3. Requiring the coons to obey roles. Stale, or county otliccrs;· Rule statutes, or constitutions or forbidding Failure to Supply Procedural 39(a)(1) (B); or courts to usurp the prerogative.~of the and Substantive Facts legislature. 3. 11le error by the coun of appeals The supreme coun does not already requiresa hdccision... Io n] a mate.rial In shon. 10 couch an error by a coun have tl1e record or 1he briefs filed in a question ... of first impression in of appeals in terms of the Ruic coun of appeals when the supreme coun Alabama." Rule 39(a)( I)(C); or 39(a)(l)(D) co110ic1-witb-binding-prece­ receives a petition for a writ of certiorari. den1 basis for ccniorari jurisdiction, the The entire function of the peti1jon is to 4. The holdiog by the coun of appeals petitioner must allege and demonstrate persuade the supreme coun to get the "'conllicl[s] with prior decisions of the lhat the holding of the coun of appeals record and to review il. Without proce­ Supreme Coun of the United States, conflicts with bi11di11gcase law prece­ dural and substantive facts supplied the Supreme Coun of Alabama, the dent. The conOfot must be demonstrated either by a pubHshed opioioo or an Alaban1aCoun of Criminal Appeals. as specified in Rule 39(a)(l)(D)J. or 2. unpublished memorandum decision by a or the Alabama Court of Civil and in Rule 39(d)(3)(A) or (B) lO like court of appeals or additional facts prop­ Appeals:• Rule 39(a)(l)(D): or effect. erly supplied by a certforari petition, the 5. The erroneous holding by lhe coun of If a court of appeals does not issue a supreme court,when il receivesthe peti.. appeals results fro,n its following a publ.ished opinion or an unpublished tion. has no infonnation whatsoever controlling Alabama Supreme Coun memorandum"•hich expressly statesa about the merits of the c.,se, the motions

I' II I· I t. I H I II I I. I II ) I." R 16 7 or objections by lhc parties. or lhc rul­ must be supponed by n reference 10the withou1undemanding ings by the trial coun. Withoutthat infor· pertinent ponion of lhe clerk's record or every word of Rule m•tion from somesou=. the supreme the repo~r' s tm.nscnpl, Ruic 39 and Rule 40 coun cannot know whether the coun o( 39(d)(5)( A). (B), and (C). Second. the and the appc.ils has erred. Whatever the issue. stn1emen1of facts mus1be included with­ intcmclion the supreme coun needsthe facis which in the petition i1SClf. '"Thes 1memc01of between creme the ,ssue. If lhe issue is or rnuy be facts shall not be lncorpon11edo r adop1ed and among prescrvmion of error, the supreme coun by reference from nny olher document, 01c mony ne<:dstbc proceduralfacts of such prescr­ including the party's owu brief in suppon requ i re me nis. wtion or 11011-prescrvruionC lhe substnnce of lhe petition." Ruic 39(d)(5). Third, if The likelihood and timing of the objectionor niotion. the the petitioner hrui. by rcquiremem or by of successi s nearly ns argumentspresented or critically omitted, choice. (see Ruic 39(c)(I) and Rule remoteif the lawyer hos no1acquired and the ruling by the trial court. 40(d), applied for a tthearing beforn a or doesnot acquire this comprehensive To rely on facts not included in euhcr coon of appeals, the s1n1cmcn1of facts undc~1anding before the appellate a published opinion or an unpublished must consist of. and only of. a vetbatim processh as evenbegun in the case. mcmorondumdecision by a ooun o( reiteration of lhe facts, or additional or While the supreme eoun makes some appeals. the petition ii.Selfmust include corrcc1ed facts. "prcsemed 10the coun of cxccplions for non-complirutlpetition ~ in tlio~c facts in strict compliance with Rule appeals in lhe npplico1ion for tthenring" cxtmordinnry coses, the exceptions nre 39(d)(5). Rule 39(c)( I). and Ruic 40(d) 10gelher with "u verincuLion1hn1 this 100 nirn nnd 100 unpredictable for any and {c). 'rhe supreme coun will not con­ s1a1emen1of facts is u verbntim copy of pc1j1ioner10 risk failing 10 comply sider nny facts not contained in one of lhc s1a1emen1prcsen1ed 1 0 1he coun of absolutely with Rule 39 and Rule 40. • these tlm:c exclusive sources:a pul:>­ appeals in lhe applie:uion ror rehearing." lish

168 MAY 2 00 3 CivilLaw Notaries: i11New Inil1h111

n 1999,Alabama's first civil Jaw notarial statute became law. Since then the Jaw has been extensively revised, and Alabama is believed to bave the model code I for other states, except Florida, which do not have civil law notarial statutes. (See Alabama Coile.§ 36-20-50. et seq.) The new statutes became effective on September 26, 200 I. The legislative intent was to create the position of civil law notary in Alabama and to give the power of appointment 10 the Secretary of State 10 appoint experienced attor­ neys to serve in that capacity. Such office-holders in other countries a,:e known as notario pubHco. "Latin no1ary;·or nora,·in 1nany developed::u1d developing nations. A civil law notary-rather than simply serving as a witness 10 tho e signing f docu­ ments or verifying the identity of tl1es ignatory. as a notary public would do-has the 1 po\1/erL O issue"authentic act,i:.. ' An authentic act is. effectivel_y,a legal opin.ionregard­ ing the facts set forth in and surrounding the document- not merely the signatures. Yet the authentic act is accorded a presumption of correctness and is entitled to the same deference and validity as an order issued by a state agency or a state judge. f'or example, a will executed as an authentic act serves as confu:mation by the civil law notary that (a) the tenns of the will are legal and will be given full force and effect by the state: (b) it was executed properly; (c) the testator fully under$tood exactly what he was signing; and (d) the testator had the requisite testamentary capacity. Siolilarly.an agreementbclween t,vo eotpon1tions.suc h as a mergerand acquisj1ion, or a conuuercial transaction. which is executed as an authentic aer. not only will (a) establish the agreement between the panies, but also establish that (b) the agreement b lawful aod legally binding: {c) each corpomtion is in good standing, whether domiciled in Alabama, another $tale, or abroad: (d) the corporate officers executing the agrne­ ment have the legal capacity to enter into the agreement; and (e) the parties have the 6nancial means to pursue and accomplish the tcnns of d1e agreement. The civil law notary's findings wilh respect to d1ese issue.~and any other facts that may be included io the authentic act are entitled to a presumption of correcu,ess. similar to the factual findings of a state judge in issuing an opinion or order. The evidentiary effect of such a statutory presumption is to shift the burden of proof in any litigation conceming the substance of the aud,entic acL 0ne who chooses to dispute tl1efacts cer­ tified by the civil law 11otaryin an authentic act must produce clear and convincing evi­ dence to rebut the existence of facts presumed to be accurate unde,· the statute.

7 II I:' l I. l JI \ \I I I. \ 11 t /: N 169 Civil law notaries may not autl1en1icate 00 I. et seq.), represent an interoational to its contents in dale order. Each entry is matters in colltroversy.They may. how­ aad hisco,ica l tradition of non-nclversarial re<1uired to identify tbe party or parties ever,cenify fnctsnot io controversy or representation, con,bincd \Vith a record­ who paid a fee to the notary, and the be called upon to issue finclings of fact ing functionin Latincountries, as ,vell as amount of the fee. with regard to panlcular matters in con­ n13nynon -Lntin countries.1The civH lav.• A civil law notary's protocol must be troversy. notary owe,; a duty 10 the trJasaction, available for inspection by 1heSecretary Civil law nornries in other nationsenjoy rather lhan 10 a party. He or she provides of State during regular business hours, a well-earnedreputat ion for objectivity. services to "interesled panies" n11her and certified copies of any documents ocutrality.legal expe tience and skill. In than to "clien1s." As :i result of this dis­ contained therein must be furnisbed to Spain. for example. one who wishes L<> tinctive mode of legal representation, the the Secreiary of Stale upon reques1.T he challengeth e factual cenificationby a civil Latin notary is a model of impartial, contents of the protocol are otherwise law notruy must file a separate declaratory multi-party counseling. In the United considered confidential and will be made action in court to have it set aside. SllltCS.in contrJSt. the notary public available only to panics who bave a legal Civil law notaries. unlike notaries pub· developed imo a purely clc,'ical function. interesLin ll particular cransac1ion. lie, arc appointed for life. subject to good which it remains today. Swte regulmions also make provision behavior. §36-20-52. They represent the This non-adversarial, impartial mode for tl1e transfer of the protocol of an transaction. not the parties, and all appli· of representation traces its history to Alabama civil law notary to the custody cams Forappointment to lhe office of ancient Rome.' Roman 1abellio11eswere of another civil law notary in tlic event of civil law notary in Alabama must be private individuals who wrote and kept such notary's suspensionor cessation of practicing ottorneys witli not le.~sthan wills and other documents. With the practice as a civll J:,w notary. Every five years of experience.Applicants for decline of the Roman Empire came the Alabama lawyer appointed a civil law appointment as civil law notariesare decline of the Roman tal;ellio11es.During nou1ryin tl1isstate must file an nnnual rc<1u.ired to receivespecial training, are the I 0th tlirough l2th centuries. report of his activities und provide the regnlated by botb tl1e Secretary of State 1nedievalnolaries gra dually rclurncd 10 Secretary of Srnte with the name and and the Alabama State Bar. and arc sub· the R<,man model of the tobellio. address of another civil law notary ject to discipline, sanctions or expulsion Eventually.t he Germanic groups devel­ designed to assume his protocol in tl1e from the roll of civil law notaries for oped a semblance of 1hemodern-d:1y event of suspension of or cessation of improper behavior. notary. He kept the authentication func• practice. \Vith respect to a con1me.rcial lrans.ac• tion, but not as a public oflicial-as a Wblle lhe civil luw notary (or "Latin tion. which the civil law notary certifies privaie legal professional. notary") is used in many countries as the as an authentic ac1,the civiI law notary is The development of the modem nornri­ only ,1Uthocizedentity 10 conduct real legally liable for the value of tho eotire at begun in earnest in 1228 in Bologna. estate transactions and record them. this transaction if it is detennincd that his ltaly. wiUlthe opening of the Scuola de is inapplicnble 10 the United Su11cs factual findings are wrong or inaccurate. Nowriato. The most influential notary of because of tl,e existence of government­ Civil la\v notarie.~.\Vhil e new and the period was Rolandino. who published run recording systems and private title unique in AJabamaand Floiida (see his S11111aArtio· No1ariae. in 1234. Italy, insurance. Alabama Secretary of State Reg. 820-6- Fmnce nnd Spain h:we had notarial laws The immediate need for civil law 1-.01,et seq.; Fla. Admin. Code IC-18- since the 13th century. notariesis seen in cross-borderand in1cr­ Tbe contemporary Latin notary is national legal transactions for everything delined by the International Union of the from domestic relations to all manner of Latin Notaciut(the "UlNL'') as "a legal commercial tmnsactions. In the 70 other professionalspec ifically designated to rncmberllor the UlNL. the drafting and attes1the acts and contracts that persons execution of contracts. corporate resolu· celebrate or perl'orm. to draft the docu­ t·ions, releases.po\vers of attorney,com· ments which formalize the lauer. and to mereial transactions, and a host of other give legal advice to those who require businessdocun1entatiou as ;;iulhenticact$ the services of bis office.'' provide counsel for the foreign pllrty io An Alabama civil law notary. like his the transaction with an increased level of historical forebears in other countries. comfort in that Ibey will be receiving maintains each and every aulhenlic act documentation from the other side or tl1e Ire bas ever issued. including tbe ex,bibits tr.msaclionin the United States from an nppended to it. in his "protocol." The official in whom tltey can have great civil law notary's protocol must be main­ confidence. and in forms that they readi­ tained in a tireproof location. It musl ly recognize, upp,·eciate aod utUizewit h­ cont:iin an original or cenified photocopy in the format of their own legal systems. of each of his autlicntic acts in date Simiilll'ly. various aspects of family sequence. along with originals or ceni­ law will be simplified. Where pre- and fied photocopi"l'of any supporting or post-nuptial agreements, marital property related documents. The protocol must se11Jements. proof of paternity. marriage, contain or be accompanied by an index and adoption, und like matters are

170 MAY 2003 T II E ,l /. l II A ,\I .-\ I. , \ \l r f." Ii 170 memoriaJjzed in auLhenti_c !lClS, they umbrella ol'gaoization for the Civil Law IvoryCoaS1. Japa n, Letona. Utl1uanla. l.wcembourg. Notarial in this country. A!i such, Mah,M alia. Mexico,Monaco . Morocoo. N1earagua. should be readily recognized in UINL Nigeria.Panama. Para guay. P«u.Polaod. Ro mania. member nations and given full faith and NACLN has been admitted to the U INL Russia.San M anin.Se negal,Slovaloo. SlcWonia. credit by their legal systems. as an observer-the first step toward full SouthAfnc a. Spain.S wiue,tand.Togo. Twkey , ~ay, the Vatican, aOOVenezoola The concept of the civil law notru:y membership-and expects 10 be uccord­ represents nothing less thnn a major ed full membership wi1bin a matter of 2. Malave,l'l!dl1> A, "CMsefforlheSituation: Thttl.atl n NotaJY. a Historicaland ComparatiYa Mode l." 19 it,sdrgs philosophical shift in our common-law only a few years. M Ant/Ctxrpa.L Re,, 13.PIJ. 389. 3S2 (19$l adversarial way of doing busu1ess in the U!NL officers from a variety of UlNL 3. Cf. Mossa. Maria£\'lllina. ·com parisonof the United S1mes. ln UINL member coun­ member nations have nucndcd civil law Systemo f Rulesor Socieu es in LheCcxin1rie.s lJ'ies. ,he civil law nqt.iry has been. for 11otarial tr.tining in Florida and have MelOOefSof t he UINL: I\JINL BuonosAt ,es. centuries. an efficient, neutra.J.. co unsel shown a keen interest in developing an Afljootina.200 1-1 to the transaction," ra(hcr tl1ancounsel to American tradition of the Civil Law one party as agalllst allother. The adop­ Notarial in tl1e United Swtcs.• 80yd F. Campbell S..,. F.Campt,,11 p- m tion of this system , with So'n1erevis ions While civil law notaries were estab­ MOI\IP*V HeSet\'f!d 83 chau and recognition of previous methods of lished in the late 1990s 10 meet the of lhl '1tematiin1law SettlCJn handling legal transactions. in Alabama increasing den1unds of foreign parties to ol inoAlabama Stat.e Sar rrom 2000to 2002.He b • dirwclocOI and Florida not only will promote better domestic and intemational business 1hoN ational A!socl11ICJ"1!;IfCNi cr<>s-<·CulLurnl understanding and efficien­ transactions. we may look forward to lnw Nalil08lllrd ol lhe AlaNMII cy on tl1e intemational business level. but e1

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PROGRAM IDGm.JGHTS SPEAKERS ...... • • • • ••• • •• • • • ••••••••••• Toe Solo & Small Flm1 ConuniUcc will sponsor ,dditlon:d Wed oesday, July 16 1cchnology progr-,mming. There will be: a half hour on ·11,c AILD AY Cl.ll S1:01cof Techno lnckcd sc:mi~r on negotiation and presenllnlon TI1c:Alabama Smc 13:,rand lheAlabarn:1 Lawycrs~ulon skills. Whether • scnsoned professional or • new associn1e, join 10 present 1hrec progr.uns : 1od:1y's com ;>elilive m:irkctp lace de m:111(18more effce ilvc A "A Century of Progrcss:ATribuic com munications . Titls is where you will le:,n1 how 10 nrnkc 10African-Amcrie11n uwyc:rs inAJubama" II happen A "l'1'3ctical11 ps fn,m lhc lkod1 : Th ursday, July 17 TI1ings H,·<:r)·t.:iw yer Musl/Sh ould Know• BENO! & BAR LUNCHEON A "Federal Proco.,durc:U pdates " Dennis \YI. Archer Speakers include fcdcit~ judges Myron H.'l11001pson nnd Join ynur colleagues in being :apare of hls!Ory U.W. Clemon and smu, ~-oun judges Aubrey Ford. Eugene as the first Afriean•Amerlc:m cleetcd IO serve Verin , M:ll'Vin Wiggins nnd Herman Toonus . as prc!!idcn1 of the Americ:in 6.u ASS<>c.'i:uion Tcdmotogy is pn,mincnll) ' fe:uun.', this , 111c Smtc ol'Techno logy in the State Couris ~-sslon with this distinguished scboL'll' In ui:tl by Mike ('~arroll (AOC) practice ,nd lecturer in trl:u ad\'oc;acy. McElhaney also SCt\'CS • The Scue ofTcdinology in the fcdend Cou~ as senior editor :uid columnist fo r 1.ltfg(ll/011, mejourn:d of • Toe State ofT~-chnology in the: uw Office ,-itJ, the A!IA~ion on Ulig;iuon . Sc:e whi,•makc 'cm laugh " an 11 panel discussion 10 be led hy (',corge Huddloton so1nttitnes n1akcgood sen.se. of Birmingham A ·11ic VLP a1mu;alseminar will feruure federal Judge Saturday , July 19 W. Harold Albriuon , 111. MORNING CONVOCAT ION MllJ:i.rdFllllcr Milbrd Fuller is founder of H•bita1 for Human­ REGISTER f.ARLY! ity and p~ck:nt of H2bl1•1 for Humanit y In- 200~ Alll1ual Meetln~ "' 1cmatlooul (HFHI) . Since I lnblmt's founding . 11,e first 7,; regt.,tntnlli for the: v ...... n· his leadership has helped forge Habil

Wednesday , Jul y 16, 2003 Thu.rsday, J uly 17, 2003 10:15 run · ll:lS run .... SECOND SERIES OF 8:00 am - 5:00 pm 7:30 am · 8:45 am CLEPRO..RAMS Annual C.onven1lonRe,:ilstration AL1b;11naL:,w Foundation 1llx andTruSt. IJ1Suc,;for Elders" 8:30 om - 4:45 pm Trustees· B~-akr-\St liJ{/o,• /AW ,',(!cf/OIi Cll l Scmi nnr. 8:00 om • 5:00 pm "Toxic Ton,. , Mold Ulig;,tion 77J(!Skl /1.rE1'(!1)1 /,111UJ'CI' Needs: Annunl Convcn1ton :ind St:01eCom mon L:,w C.1uses fl ow 111Pvrsuadu 1111//JMOit! Rcgl,tr: 11Ion of Action · J>t>u)cr11111/ l 1ifl11t•11ce JJ11uh'o11111c111t1/IAw Se,·t/cm l.1.~11EXPO 2003 Rob Sh~nn:m, csq. "flcdernl Proc, xl urc lJpdoltc" Sherman koder,hlp Group 9:00 run • 10:00 am Al:1b:tnc1L1w ln,1llutc Coundl K:u-r& Shcrm: m HRSTSl!RJES OF Mcc:ting Columbu.~. Ohio CLE l'ROGRAMS 8:00 om ·Workers ' Compcn5:ttion 11:15 am • ll:30 :lm CLERc.,:l>U:nion and Coffee: Upin11Your Oic nt Should Know · 2:00 pm • 4:00 pm Ou, of rhc: Line of Fire!' 11/ab1111wlt11vye1·s tlSSOClflliOII Bo:irtl or OorCo mmissioners ' 8JJ.s/J1

Thursd.'ly, July 17. 2003 l'b/1111/ecn wu,Y:rs Prof(mm • PJSt Pn:sidcms' llrc:tkf!ISI (O,nll .,11edfrom prc,·101,s /J(l~) of /be Alabamfl State !Jar • nXIAlr1/){1111u IAtll)'0 2003 Emotion' In the Courtroom" Cr/111hu1//11.,1/ce Suc//0 11 8:30 unl • Noon 11Rcal &1:,te Issues Lil the Probate • Profe.slo nallsm In the Workpl:lce: Kl OS'C IIAN <:ll (;01.P SCRAMlll..E Sba1tcrln111hcG l:,;;sCciling- E:st:uc :Ulcl Curtcnt Developments 9:00 ,un • Noon 1l ow Mud1 Remains• In Property Lllw" FIFTH SERI ES0 1' Cl.F.PR OGRAMS Rl!f1/ Pro/wrl): Probalf! & Trust lf~mon s Sect/011 l'EATUR£0 PLENARYSESS ION Law S<,c1/o,1 ·200~ Upuatc: "Plannlnl( 10 Wln: Discovery and AdruinlstnltJ,,: uw " Persu:&Sionln the Courtroom· A11omc~· 1nsurancc Munt:tl Atl111/11lstmllt,eLaw Stttfo,, of Abb.ama , Inc. Annual Mttting SJ)dlkc:r:J~me,,\ V.McE!ltJOc:y Alabruna\'ou111t UW)U'S' Section Hous1on.Tc=s 12:30 pm • 2,00 pm llusln4'SSMtttlng Noo n • 2:00 pm BENO! ANO UARWNCHEON 4:30 pm • 5:30 pm r-e:i1urc<1Spc:lkcr: ANO·JORSAWAY wm I ISi • Criminal Justice Section Recc:ptioo Dennis\~ Archer, Detroit CJ UWR.EN'SPARTY Presldcm-<:lcct 5:00 pm • 6:30 pm 12:15 pm · 2:00 pm Amcric:1.n1}:u Assodntlon VU' Reception 1liE MAUD MCCLURE KEU.Y SPECIAL PRl!SENTATIONS AdruirllSlt:ttlvc t.1w Section AWARD I.UNCHEON • Alabama t.,w Institute Reception :ind prcsenrntion of the \~ 111u11:, Sac/Ion tmta Slfl lo Bm · MccL'1llionAwartl • t\BICIJ! Aw:1rcl 12: 15 pm • 2:00 pm • Judki:al Awnrd orMerit 6:30 pm • 9:00 pm 'nlE AlAllAMAU. WYER • AlabJma Stite B:tr Award or Metil Al'IINUALM E.\IBERSHJPRECEf'JlON ASSISfANCllPROGRAM • Al.1b:llll:1 Smc: 13:arPro Bono Award "Mardi Gr:i..R~u.~ · LUNCHEON 2:15 pm · 3:15 pm 1/osll.!d by I/JC MolJfle Bar Al"l>l""" Lill")"'"JIS$/Stf/11ce FOURTHSERIES OF Ass«-ffl//011 """ 1/xJAlabama Program CLEPROGRAMS S/f/ te Bar 2' 15 pm · 3:15 pm "A Cc:mury of Progress. Friday , July 18, 2003 sr>.'THSER.JES OF OJ! PROGRAMS A Tribute: 10 Afrl~n-Amc:ric:in • .. . . . ·Oom~c Relations Update 2003· Altome)'~ In AL1b:an1a· 7:30 am · 8:4S am r-amlly Law Stt/1011 71JeAla1H1111f/ Wl/1)"'111 Assodarfon EARLYMORNING BREAKFASl"S 2:15 pm · 4:15 pm """ /bf! Altil)r1111f/Slfllu B11r • Chrl,~lan l,t'jpl SockLy · r,mcrging Technology in "Successful Rchcnrlng :md • Farrah Order of Jurisprudence/ l'edcrnl and Sm1e Court> :and Certlomrl In I he Alab:1111:1Courts" Order of the Coif In the I.Jl\V fir.n " • Jones School of t.,w Alumni Solo mu/ S11wl/ Finn l'm cli //011ers "Review of lnrertocmory Orders: • llirmlnghnm School of t.,w Cm11111lttoorif 11,e; llflbm11a A Ro.1dm:1p" Alun1nl Stat11 8(/r ,1ppellate Pmcrl cc Sec//011 • Y.•nlicrbih University School 3:15 pm · 3:30 pm "Coal Bed Mctlunc o.ts· of L:r,v Alwnni • Unlvcrsi1y ofVirgi ni3 School BRF.AK Oil Ga.f6 Mlmnnl Law Sec1Jo,r of L:awAlumni 3:30 pm • 4:30 pm "Considcr:alions in Me:isuring • How·.utl Uni,'CBit)' School Commcrcul & Pcnon.11 0:un:,gcs· EVEN'!'!I ERIESOF of l:lW Alumni CLEPROGRAMS ·Voluntcc:r I.Jlwy<.-rsAnnu...i • Tubnc Unlvcrsity School "Utig:ltlng'lcchnolog)' Disputes CLE Progr.tm• of J;aw Alumni for the GCl'ltrnl Prnctitloncr· July 1~19 , 2003 • /\dam '~ Mark Hotel • Mobik ,Al:tbama

·up<11tc on lntcllectu:il Property 6:00 pm • 7:30 pm 9-:15 run - 11,15 run Law CotI .he ("""'ct:11Ptactitioner• UNiVERSTTYOP ALAB.0\MA MORNlNC CON\OCATION · (lndudi11g the Abb.,nu SCHOOLO F LAWAL UMNl LAWYERSRENDERING SERVICE l'r:ldcmarlc Act) RECEP'n ON Srx... kcr: MTIJa.Nl Fuller lm elll'CWIJI Propt!rty Law Sedion CUMllERlANO SCHOOL OF I.AW l'ow1dct of Hnbim 1 for liumanity 4:30 pm • S:30 pm ALUMNI RECEl'110N nod !>re.Idem of Habila1 for l lunmnlt y ln1crnn1ionnl (HFHJ) INTEI.LECl1.IALPR OPERTYLAW 7:30 pm SECl'JON RECEPTION "TASTilOP MOBILE" RECEl'110N SPllCLALPRllSllNTATIONS : S:00 pm • 6,00 pm • Special l.o<':11llar Adlicwmcnt Awards f'ARb"\VE!.LRJ !CEPTION Saturda y, July 19, 2003 • Kl<.ls' ChanceScho larships HONORJNG FR.EDO .GRAY •••••• •••••••••••••• ••• •••• • Recognition of SO-YearMembers Emettafnmcnt:Joscp h Mi1chcll & 8:00 run - 9:00 atn • lnsull:uion of omccrs SU1Tl:- A Jan Co nfigur:,lion CIRCUITBREAKFAST • Lc,glllEXPO 2003 Prize Drawings Co,bo..

Joln u, rr,r .in .L(tctn()Onof golf fn ~1obUc.made: even 111ure rcwQn.11ng by kr.10\viog th2t you're 111aklnJ,C;a tllJfettnt..>c In ,;a )'t'J1,1ng pct>0n 's urc. Sign up 10 play in the 9tbAnnwl Kiili ' ounce Golf Sct:imble on frijob injury. K;ds ' Clw,cc ,,.,.., dUl>lishcd In 1992 by the Wotl<' Compcnso1lon Secdon . Since then ,.,, h:m: :aw.udc,d ~hobrshlps to 104 Students , nw,y of whom would nc>t be >bk: to :uu,nd colkgc without our help In 1975, f<1I gr.mts wuuld co,-n up 10 84 pcnxm of• low ·lncomc .student's C.'Ollcj;eCOS1$.1ly b5I l"""'-that :amount lud dropped 10 l? pcn,cn1. If )'OU •re:unable to pby In the tournament. plosc con,ldcr ~ruoring • holc. lltc Worltcs )'Oursu 1>pon .

Unda Pope. ch:alr GOLF SCRAMBLE ENTRY FORM

City ______Stmc __ ZIP Code __ _

Office Telephone ______Home Telephone------11:tndlop __ _

$ lndivfdu:al Player $125 --- l'lc:ise nuke checks p:Jy.lblc 10: Kids' Chnnce Scholarship Fund Hole Spon,on,hip $250 s OR pl= bill my credit c:ird: 0 VISA O MUtetCard O AMEX $ __ Oard No. ______Hole ponsorshlp & I Player Slot S350 Expita1lon Date ______Hole Sponsorship & 4 Player Slots S600 s __ Slgruuure ______TOTALENCLOSllD s_ If you do not have a team, yo u will be paired wllh nnothcr player. For fu n her Information , contact Tracy Onnlc l at 800-3S4-6154.

/Ill II llll\11 1111)/R 177 July l6-19, 200~ • Adam's Mark Hotel • Mobile,Alabama HOTEL RFSERVATIONINFORMATION Adam 's Mark Hot el · Mobile · Reservati on Request Online Registration Available at www.alabru:.org

To ensure tha t you receive the guaranteed room rate , you must reserve your room no later than J UNE 13, 2003 . Reques ts received after this date will be honored based on room and rate availab ility. Rese rvation req uests must he accompanied by a deposi t eq ual to ON'E NlGHl'S ROO M RATE PLUS 121110OCCUPANCY TAX. This deposit will be applied to the last nigh t of the reservatio n.

THE HOTEL RESERVATION FORM MUST ACCOMPANY YOUR ANNUAL MEETING REGISTRATION FORM AND SHOUID BE RETURNED TO THE AIABAMA STATE BAR

S12tc __ _ ZIP Code ______

BusinessTe lephone------

ArrlvJ.I Dayfl):uc ------­ Departure Day/Date ------­ Number of Roon1s Number of Adults _ _ Number of Cblldrcn __

CHECK ROOM TYPE PREFEIU!NCT~ 0 Single . s II O 0 Double, $120 0 Trip le, S 130 0 Quadruple, $ 140 0 One Bedroom Suite, $ 175 SPECIAL REQUESTS: Q King Bed 0 1\vo Double Beds 0 Roll,AwayBed ($ 10 per n.ight) 0 Wheelcha.ir Acce~siblc Room 0 Crib (No Charge) 0 Nonsmok ing Room Other. ------No charge for d1ildren unde r 18 when $haring room ,vilh parents and using c.x.isting bed space .

0 I have enclosed a check payable 10 Adam 's Mark Hot el • Mob ile lo the amount of ONE NIGHT'S ROOM RATE PW S 12% OCCUPANCY TAX. 0 Please dtargc ONE NIGHT'S ROOM RATE PLUS 12% OCCUPANCY TAX to the following crcdlt carcl: 0 VISA O MasterCard O Discover O American £>

C.'\rd No·------E:xpir:lLlon OaLc,______

Name of Credlt ca.rd Hol.dcr ------Card Holder's Signaiure,______

I und ers tand tha! I am liable for ONE NIGHT'S ROOM RATE Pl US 12% OCCUI'ANCYTAX whlch will be covered by my deposil in the event 1ha1I do noLa rrive, C!laccl less lhan 48 hours prlor 10 arrlv:tl or depart c:a.rlicr than scheduled.

CHECK·IN TIME Is after 3:00 p.m. OIECK-0\11" m m is noon .

CANCEUATION POU CV: Cancellation or modlOcaLionof rcsel"'i13c:ion ntUSt be 01adeat least 48 hours prior to arrival 10 avoid forfchu rc of deposit A.Skfor and retain canccllalion number until you receive refund of deposit or credit 10 credi1 artL Guar.,ntced resc.rvations:ire held (,vJtbout occupancy) for one night only a,nd not the e ntire length of the stay. All hotel account$ are subject to credit :i.rrangco1cntsat lime of registration and payable at dep3rtur c.

178 MAY 2003 Julr 16-19, 2003 • Adam's Mark Hotel • Moblle,Alabam: 1 ADVANCE REGISTRATION FORM Adv:ance regi5tr:11ioo forms MUST BE RECEIVED NO lATER THAN JUNE30, 2003. Online rcglstr.ltloo availab le al www.ru.1w.1r.org. Olnccllalions whh full refunds nuy be rcquCSlcd through noon , Thursday , Ju ly 3. 2003. PLEASE PR{NT

Name (os )'OU ,"1,h It 10 •l>J)dlf on o:unc badgc) __ ~------­ Check c-:,tcgorlc:$ll>al upply; 0 Bor Comntissloncr O P-.1.,1Prcsldem O Local &r Prcsidem O Jus1i

Plc:isc_lndlcu1c any dlc»ry =ne1ions: 0 \'cgctllrl•n O Other: ------­ Plc:isc_,end lnrorm11lon pcn:,lning 10 servicesfor the 16:1.&bl the n>t\lrc of the diSlbiliryl O Auditory O Vlsu;d O Mobffiry

REG.lS'T'RAnON FEES (A ll11J/trrl n11111blanbl~ tm! a,:..'Oilable.Conlftd 11:,eAkll},{11n11 S/:ot~ &zr for d~la/ls.J Advance Rcglstr:ul.oo By J\IOe l3 After June 13 Fee, _Abb>nu Smc ll;ar Mcmbc:rs Wcdncsd>y,Saturd>y prognmmu,g S250.00 $3()0.00 s ___ _ _ Abb>m> St>lc fl;ar Mcmbc:rs Tin1rod:l}-Satunb y (No \t"cdnc,wy prot:r.unming) S 195.00 $ ZSS.00 s ___ _ Al>b>m:tSme ll;ar Mcmbc:rs Wcdncsd>y l'ro!tr.UnONLY (Op llo1UI c,,:n1>- indud)·-S•rnrd>y programmlng 512S00 $150.00 s ___ _ _ FulJ.TuneJudgcs Thursd•i ··S.lllrd>)'( NoW'cdn«fll>mming) $ 97.SO $147.50 s___ _ _ Ful~TuncJudgcs \Vc:dnesdJli• ProgrJm ONLY( Op1k>n>I"'"",. no, Included) S 75.00 $ 100.00 s __ _ _ _ Auomcy s (odml11cd 10 $ ___ _ Wcdnesclay,S:uurdoy propmmmlng $ 125.00 $150,00 tm S y.,-,rsl o r ess) $ ___ _ _ i\ll ornc ys (S yc•rs or less) Titursd:ty-S,iurd:oy (No Wcdn..Oayprollf'1mml ng) S 97.50 $147 .50 s ___ _ _ Attoni cys (S yc•rs or less) Wednesday Progr.un ONLY( Op1lon•IC\"cm• not Included) 5 75.00 S 147.50 s ___ _ (Docs not apply 10 SilOll'IC/ )lllC>t or rcQiSlrJnl ) S:l00.00 S.150.00 TOTAL REGISTRATION FEES $ ___ _ OPTlONA.L£VllN1' 'll CKETS lbursda) •.Jul y 17, 2003 No. ornc kcis COS1 $ ___ _ _ llcnch & ll>r Luncllcon $IS00CL _ Mcmbcr>blp Re«pti on/M>rdi Gr.asRl:fos1 • SIi OOca. $.___ _ _ Jon<> School or Law Brc>k!:lst 0• S 10.00 '"' · $.___ _ _ 1\ 1t•nc Unlvcnhy School or Law Brc:ikf.ls1 0 S IS.00 c:t. s ___ _ Law S IS.00 _ V•mlcrillll Unlvcrs lry School of llrcakfasi 0 c,. $ ___ _ _ Unh•crslty orv1 rglnl• School o f I.Aw Brc:ikf:151 0 SIS.00 C:I. _ Ah1b~n1atu, vycrA sslst:ancc Progr.unLuncheon @ S1S.00c>. s ___ _ $,___ _ _ The M•ud McClun: KellyAw:,rd l...nchcon @ S2S 00 c,. s ___ _ _ Ancllors Aw,y with ISi Childrcn ·s P:uty (Ago~ · 14) Cl' N/C (Note One adult per 1'2.mUy mu.. Sdlool or I.Aw R«cplion • S2S.OOca • $.___ _ _ Curubcrl:lnd School or I.Aw Rttcption • S2S.OOca. s___ _ Satunby , July I!). 2003 • _ Orc:ui1 Brc;oJ(!u1 Ii $S.00co . $ ___ _ TOTAL EVENT IlCKETS 1'0TAJ. FEES TO ACCOMPANY FORM S___ _ Al'PR.OPR.lATl! PAYMENT MUST ACCOMPANY ll£G~'1'RATION FOR.M. Payment by cl1cck o r crcdh cord is rcqucs1cd . Checks for rcglsu:11lon/tic kcts should be nude p•yoble 10 ll1c AIAb>m•S ia1c ll:u: OR Please blll my crcd l< cord: 0 V1Si1 0 M•stc..C.rd O AMIDCC.rd No.------­ C..rdb ulder'• Slgnm 1rc llxplrotlon O,ic ------­ MAIL RJ!GISTIIATION FORM & PAYM£NT TO: 200~ Anllll>I Meeting. Al.sb:lnuSta te Bar. P.O. llox 67 1, Mo111go 1ncry , AL 36 10 I I II f \ I \ II \ 11 I I I U ) I H 179 0 "S!.:::, ~ ~ 0 :::,-· en a ::r... J, Anthony McLain C1) Ci) C1) LawFirm May Not :::, C1) ; ''Fire''Present Client And n- 0 C :::, ThenSue Him en -C1) m < ~ Question : legal documents for a condominium develtJpment. TI,e condominium J)rojecJwas no1co nnecled In any way i "I hnve found myself in a situation where my oppo­ wilh the projecl out orwhich the construction lawsuit 0 :, nent in Utignti

180 MAY lOOJ copy of 1he Complaini and bad in-house lawyers on staff. withdraw from representing A in that ma1ter. You may colltinuc Nevenheless, C insisted that we withdraw from our representa· to represent A and C in other mallets 1omllyun rela1ed 10 the 1ion of A in Lliecons truction litigation but continue to represent construction litiga1ion. Additionally, you may not. by disconlin· C in the condominium project. C coniends we must withdraw uing your representation or C, take advantage of 1he less strin­ from represemiJJgA because of Rule 1.7 of the Rules of gen1co nflict rule regarding former clients and thereby continue Professional Conduct aod cites a portion of the comments to represent A. thereto (under sub1itle 'ConfliclS in Litigation' ) which state: Discussion : 'Ordinarily, a lawyer may not act as advocate againsl a client the lawyer represents in some other matter, Rule 1.7 of the Rules of Professional Conduct provides the even if the other matter is wholly unreta1ed.' following: "Since 1he mn.trer involving C is wholly unrelated to the con­ "Rule 1.7 Conflict of ln1cres1:Geneml Rule struction litigation. it seems 10 me that other commenlS lo Rule (a) A lawyer shall not represent a clielll if the reprc­ 1.7 control how this claimed conflict could be resolved. The senrntion of Ll1at client will be directly adverse 10 second sentence in the second paragraph of the Commenis anolber clienl, unless: under 'Loyalty 10 a Client' states: ( I) the lawyer reasonably believes the representation 'Where more that one client is involved and Llie will no1 adversely affect the relationship wilh the lawyer withdraws because a conflict arises after repre­ other client: and sentation [has been undenaken], whether the lawyer (2) each cliem consents after consulm1ion." may continue 10 represent any of the clienis is deter­ As pointed out in lbe Comment to Rule 1.7. "loya.lly is an mined by Ruic 1.9.' essential elemeot in the lawyer's relationship 10 a client." lo Llie "Rule l .9 would not seem to prevent us from coocinuiiig to situation where a lawyer lakes pan in litigation against an represent A in the construction litigation, if we withdrew from existing clien1 "lhe proprie1yof the conduct must be measured represeo1fog C in the condominium projec1.s ince 1he construe­ not so much against the similaricies in litigation, as against the lion liligalion has no relationship or connection 10 the condo­ duty of undivided loyalty which on u11omey owes to eacb of his minium project. clienis." Cinema 5. ltd. v. Ci11eranw, Inc .. 528 F.2d 1384. 1386 (2d Cir. 1976). "This resolution of Llie asse,1ed conflict was mentioned to C's counsel who responded by citing \Volfrom's Hombo ok 011 Much more latitude is permi11edwi th respect to litigation Mod em Legal £11,ics and the California bankrup1cycase In re agauist a former client. ln this regard, Rule 1.9 ol' the Rules or Colifornia Canners and Growers, 74 B.P. 336 (1987). The Professional Conduct provides the fol lowing: cited authority staled that in the situations involved in the "Rule 1.9 Connict of Interest: Fom,er Client authority, lbe lawyer could not choose between clients as 10 who he would represen1.H owever. the bankruptcy case seems A lawyer who bas formerJy rept'esented a clienl in a to be distinguishable from our si1ua1ion since lbe two matters mauer shall not thereafter. involved here nre totally unrelated and since lbe case deals with (a) t'epreseni another person in lhe same or a substa.n­ the old code. Additionally. the portions of \Volfram c.i1ed talk tially rela1ed mauer in which Ll1a1peri;on 's interests aboul simulianeons litigation which we do 001have in our sim­ are mateciaUyadverse to the imerest of lhe fom1er ation. Moreover, the references seem to be at odds with the clie111.un less the former client consents after consul­ Comment section to Rule 1.7 cited above which seems 10 tation;o r require withdrawal from representation of at least one clielll but aUows continued representation of another if such would nol (b) use information relating 10 the represenrntion 10 violate Ruic 1.9. the disadvantaged of lbc fonner clie111excep t as Rule 1.6 or Rule 3.3 would permit or require wilb respect "Thus. the question presented is whether we may wilhclraw to a clielll or when the information has become gener­ from represeniing C in the condominium project and continue ally known." 10 represent our long-time client A in the construction litigation where C is a defendant by being a general prutner of 8 , or Here the emphasis is on the similarities in the litigation (a whether we must do whal C wanlS and withdraw from repre· subs11m1ially refotcd mimer}. and use of client confidences to senclng A ln the construction litigation and to continue to repre­ the disadvantage of lhe former cliem. sent C in 1hecon dominium project, or whether we should do 111the ins1an1sit na1ion, there is no question that you could something else. We would appreciate your confidential opinion not continue to represent both client A and C in non-substan• as 10 what we should do in 1hiss ituation and whether we can tially related matters while a1 the same time representing A in wilhdraw from representation of C and continue to represent A litigation against C. Rule 1.7 does not permit such divided loy­ in the construction litigation." alty unless the conllicting i,ucrest will not adversely affect the relationship of Ll1e olber client and each client consents. Answer: The more difficull question is whether you could cease to Your representation of client A in the construction litigation represent clieo1C, thus relegating C 10 former clieni status ond is directly adverse 10client C and for that reason you must 1hereby take advantage of the former client rule (Rule 1.9).

I II I I /. l R I II I I I 11 I I II 181 Indeed, the Comment 10 Rule 1.7 seems 10 indicate that such n proccdun: would be ethically permissible. The second purngmph Free ReportShows Lawyers of the Comment provides that, ..Where more lhan one client is involved nnd the lawyer wtthdrnws because a conOJct ~ after How to Get More Clients representation. whether the lawyer may continue to n:prescnt any C..tif .-Wb~ do ,on,c ,~ t hcnt, thu 0100th. you of the clients IS dcterminM by Rule 1.9." We do not believe thllt I"") en get ncb while O!Mn n\a)' nOf ." he "'>'"· tlus Comment was inicnded, in siruruions such ns this. 10allow the rcrco,,1 1nt'lrkctchc.i ~'Serviccs.'' ay~1c1n11.1 over 2~00 lawyeni ·111e prescn1-clien1s tandard opplies if the attorney A succe,;sfulsole pr.ictitluncr ~ r,rldwide, nnd ha$ written B simulU\lleous ly represents clients with different inicrest~. ',l;ho'itrugg.lcd to AlUud l'hCnl~ nc-...· repun, .. Ho~· To Get This swndnrd continues even though tho n,prescnuuion \\ard mdilS hi> tunuround IU 0 Mon, C lltn b In ,\ M on th ceases prior to filing of the motion to disqualify. If thi~ rclcrral markctinfC S)~lffl1 he Than \'ou o" Get All Year !'' were not the case.the chllUenged attorney could ruways dc\'flopedm years ago ~h1ch mats hov. ~ ln.v.1er con, en a present client to a ·rooncrclient' by choosing "I I' ent rrom dc:KIt,tolo, and .:an ll.M' tlui ~),rem co g~t more when 10 cc:isc 10represcnl the disfavored dicnL" (Supl':l drowning in debt to c.uning ,Helin and nk:rca.~ lhcic at t34S.N .4. citing, Ftuul of Funds Lid.-, Arthur $300.000 • Y""'· pracucally UICOl1'1C' Alabrullll1,.,ycrs C3ll get • And~rSOfl & Co.. 561 F. 2d 225 (2d Cir. 1977) . ownight; he "'Y'- Mo'get hllp i//w.. w.da,·ldwanl.com

Important Reminder About Your Continuing Legal Educat ion Requirement

f youhad a membership statuschange at anyt imedunng 2002, y ou mayhave been required to eainand r eport 12hours of CLE Icreditby December 31.2002 . Mandato1y ContinuingLegal Educat ion Rulesrequire attorneys who hold an ocoupalionalllcense (reg­ ularmembership) any time during the ca lendaryear 2002 to earn12 hours of CLEcredit If youare not currently a regularmember but werea regular memberfor partof theyear you are still requiredto complywith MCLERules. (MCLE Rule 2 .51 Forexample, ,J youwe1e 1nactJve or held a spec,almembership arid converted to a regularmembership during 2002. yoo are requiredto obtain12 hours of CLE credit If youwere a regularmember during 2002 but convertedto SJM!C1almember or to inactive S1atus'/OU are also requ11ed to comply with the 12-hourCl£ requirement Youare not required to obtain12 hows of Cl£credit if youare eligible to claiman exemptiOofrom the MD.ERules VOii' IW!ffll)­ tion. howMr.must haw beenclaimed on the 2002ClE repolting form which was llllllled to youin eat1yClacembe{ ff youneed to locale8PPIMd CI.E pograms you may requast a caler,darof appruw,dClE programs from the ASBCI.E depanment or from the state bar'sWfb site at WMtC81abaco,g. Callthe Alabama Stile Ba1'tCl.£ill!Pii1ment etl3341289- 16l6,l!XtBIISion 158,15ll or 11 7,for mare Information.

182 M AY 2003 ...and they're yours for the asking! ALABAMA STATUTE OF LIM I TATIONS QUICK REFERENCE CARD Simply, tell 11sh(),u ma11y y()r, need. e-mail to: [email protected]

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Ot-O'Mll7

TheAlabama State Bar Lawyer Referral Service can provide you with an excellentmeans of earninga living,so it is hardto believethat onlythree percent of Alabamaattorneys participate in this service!LRS wants you to con­ siderjoining.

TheLawyer Referra l ServiceIs not a pro bonolegal service. Attorneys agree to chargeno morethan $25 for an initial consultation,not to exceed30 minutes.If, after the consultation, the attorney decides to acceptthe case, he or she maythen charge his or her normalfees.

In addition to earninga feefor your service,the greaterreward is that youwill be helpingyour fellow dtiZens. Mostreferral dients have never contacted a lawyerbefore. Your counsel ing maybe all that is needed,or you may offerfurther services. No matterwhat the outcomeof the Initial consultation,the nexttime theyor their friends or familyneed an attorney,they will cometo you.

Formore Information about the LRS,contact the statebar at (800)354·6154, letting the receptionistknow that you are an attorneyInterested In becominga memberof the LawyerReferra l Service.Annual fees are $100,and eachmember must provide proof of professionalliability insurance .

I II I \ I \ H \ l1 \ I \ 11 ) / , « 183 11111\tissLiz Is Herel'' A Lawyer Who Makes a Difference

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ie yellow paint nn the one-sto,y, L­ 111cbu , pulled up in front of !he sprawl, minisicr and his wire.El ijrahnnd Rulh ,huped building i• peeling. To the ing clemcn1ary school nnd Liz go1off, Good. adop100 her. She moved 10 their T,ldc of the l>uildlng areba sketball blending imo ll1'!crowd of excited chil­ home in lhc country. 0111Side of Clanton. t'OurLs 1hu1N il 0 11br oken c:cmcm wi1b dren. All. save Liz, were wnlking in wilh l,ra'ss 1ory is nm c11111plcte until youtalk cltl(Jkod h01ips nml no ucL~. One<'lh e pw"rllls. lu 1978, when Liz . Ulr1edfi rst 10 Rcv~ nd 811JnhGood. A s Liz says school l'or hlnck childn:n, before 1973 grnclt:, Clanl~n·• po11ulationwns 20 pen::em wboncver you Mk hor how she doeswhat v.hen Clun1un ..choolswrre in1egrmed,!he black. ·n,ere were 1woblack c$ildren in !he ~bedocs. " You gollll Lnow my daddy." butldmg,11, behind lhc WC$!E,id housing clcmc:nmry ~ I. Ul \\atcbed modlcrs Rcven:11dGood met Lu when she wa,, proJCCI in Claman. Today,1 1 is home to le.,ding lhc~ hildrel\ IO• bullepn board eight ycan old and shecame 10 his church. Clanton\ He;idSUIII program and "Pro~ in.~idelhc school. look on !he boarduntil The World's Churohor lhe LivingGod. He GEAR" !Group of ExamplesAdmitting lhcy found lhe f hild\ nameand proceed i,aw o prut in her. From 1h31momou roc­ Re.iiiI) ,. nicidea b'°"cnn ·1 inkekids out of up and down lhc boardunu1 she saw her ca~ 1.4- .,,,hclhc,-it wa.~getting her lO lhcir env1roiut1Cnts,you can gi\'e them name. lie Wll.<1n Mi.~, Joncs 's class.Liz assume 3 lead..'Nliprole in churchactivi ­ ilhi:mati,cs. Pmjec:1GeA R was aeau:d by found Mi,, Jones',room. walked in.and ties. giving her od,'" nbout college Eliwhcll11 lu mphrey llumley and her S!Udbwn. ("MakeA'$ and a·,... " Be a young lady." childhood friend~. Tom,me Agee.Danyl Mi&, Jone.~came ov~ 10Liz Md . ·i1, "To have u friend. be a mend.") or helpin& D.ivl; umlC liu'C1l(CM orrow. Project "Wc!II, dnrling, wh,'l'Carc you suppose1 0 her with l11w~oo l homework ("f>o what GEAR ,how~ how u few 1ieople. wi1hlh e bet' is wise"). Whnt IVllS ll1e main :id.vicu help orn nurturing community, cao make "Rip.hthere." responded Li1 . Reven:nd Good gave, and 11illgiv es, Liz? 1he wurtd 11tie u~r place. "When: i, y1111r~r'I" "When you hnve sonw1hing. the burden is Lu Hunllcy.o 1997gm duate orlhe "l'm here by my.elf." on you to give bade." Umve1'ilyuf Al:ib:imaSchool of Law and In re:.pon.w10 M~ Joncs's q ons. Liz wus bnght :llldexce lled in scbool. a 1993gmdua1e of Auburn University.was Lu ~plwncd how sheh:,d ridden lhc bus Throughout her CIMton dlool and foundher room.She~ OUI crs saw Li:t's abilitiesand i'k'lpcd her in A!Lllwna"'lk,n her mother. a drug addict. JJ!IP"""IO Mi,s Jone<, "Hm: lite my immo­ special "':lys. Liz's cigblh-gmde1e:ichcr. 0me Olherproject she lutd com­ Annie Pearl Bmxton,wbo lived in !he Wes1 ruewr ha\'C .. pleted. In her sc.nlt,r yenr or high school. E11d ncighbo1iJOOdof Clmuon. Liz nioslly nun Y""' Mi"' Jones hII n1, money 10 buy a set o year and said, ·•co 11gmt11la1fons! You've DHR socinl workers wh() would show up J)ictun:s,M is., Jon"" bought !hem for her. qunrnied for AP Cnlculus!" ru Lit ', ..:hool 1md 1011h er, onc.i ugnin,!hat Wb..'l!the t ill"' performedp lnys and other 'Then: wns o problem, ii wu~ time for f tho,,, ,amundtum IOhave their secondchild Sara Beth, MISS for just five MudenL<. \\ 'ban '"" "'"'' "' and ll W;LS un,c for JOOC$kqM thc\t older dllughre:r.Ada Rulh. tvllss Ellison ngrc,,d1 0 Li.t 111!IU111 ,clw10I. her gmndmomerpo l When Pro,JCC1 u, on lhc public 'Chool ~ and mld het to wny.M iss Joi~ d11n,11ed$10,000 of reading !hat \\'Otddmeet. get olT1111hc Clru1 1on Elcmcnwy School program ,n,,rcrialsfor lhc GEAR kid~. Yc:irc!m er. 1.17t'Cl di,.oo llllll her gr-.md­ When Lil'-w-J.• in lugh school, her grand­ m, ru;hnmed of bcing unable to c.nrcfor Ll~.Titcre were no otller ru1kcd111 fill t1u1mid ~'tlmple1c fonn,, she funtlly 111cmbcrs in Chilton Coumy. To could IIOI re.id. avoid Liz hnving h>l ~ve Clnn1on, Liz's 184 MAI lllOJ every day, at 6:30 a.m. The school bus did Clarence's death was a turning point for nm run lha1ear ly and. regrettably. Liz told Liz, Tommie and DruryI. While growing Miss Ellison diat she could 1101 come to the up in Clantou d1eyhad planned how Otey class. Miss Ellison was determinedthat Liz won1dcome back home and do something would be in the advanced cl"J:,'ro MiS$ 19 help kids-the high ri~k kids- just Like Ellison, who lived on ~Qt her ~ideof sg many p;?Qplein Clanton hnd helped e 1onton,drove one hour put of her way. them. With Clarence's death. the friends every morning,,to pick._up Liz so that she decided they could not wait any longer. could be a ,nen,ber pf the ad~&I cla.~. Even though n~ oneo f them lived in After graduating valt~i~ori an qf Cli'ilton County ut that rilne, they stuned Clamon High Seh!)91, Liz,w~t toAubuni, Project GEAR---iQClanton . That was in on scholarship, with Tommie, D:uryland 1994. G:larence. Danyl and Lit had groWnu p The liieo

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TIIL \L\/J\11\ /-\1')/- . H 185 Emmiu Smith. Rod Rutledge.Pm Dye. GEAR hasowgrown it.>one-room Centn1IAlabama CilCer.YeL she. joyously Bobby Humphrey.and Jay Baikcr). Each home in the old se~gated .schoolhouse puts in mnny hourseach nnd e,wy wttk, summer nbout 150kids p:ltlicipau:in the and is renovatinga ~orc·front in "c1'3Ck and has for )'C3l'S, for the GEAR kids. sununcr f00tball camp. Daoyl helps run alley." As Liz soys. " Tlu.s is e.uctly lhc Currently,Liz is in\'Oh'Cdwith other IC'Jd· the foocballcamp. shuuling "nll of Seim.,·· ncighbortioodwe want 10be in." With m ,n Chilton County to create n "Fnmily (Liz's words) up for camp. donations.GEAR wns nble 10buy the Resource Center." which will coordinme lltis pa.,t year 140 kids participaicd in propen.yfor its oew home. Volunteers all of u,e services families may need. ProjectGEA R's tutoriog programs. In from !lie Clanton community are helping When asked Why7, Liz explains: addition tn helping the kids with tlicirdny • renovate the cavernous spac~1 hnt previ­ "ri111eund ngain 1here were people 10-dnyhomework. GEAR offers special ously was hometo gangs.The Clanton !lien: who believed in me and helped me. iu1oringfor kid~takiog lhc high school exit city electrician. R:uldolWat~ •. hasdonated They didn't hnvc 10. If they lrnd 1reatcd exumund collcge-boatdCJCIUllS. GEAR bis time 10re-work all of the wiring in the me oodly becauseI was at school with­ su1M1cractivities include career lrnlnlng. building.W:il-Man It:&., donated supplies. out a p:irenLor I lived in the projects. or where GEAR kids spend a day at various AIJlbamaPower has donnted a heating I didn't ha,,: the right clothes. I prob:tbly officesand "ffl sites in andaround and cooling unii. :uld dozens of Cl:unon would have become a drug dealer. I'd Clanton,including banks. Dw"bin Farms residents and GEAR board membets probably be dead by now. Wbe.nyou and PeachPrui( . Lcodersbip.pub lic spcnk­ spend their weekends pulling down show someone that you believe in tltcm. ing anti etiquetteclasses are pan orthe clccnyeddry wnll, blnsting ou1rotten tile you can make all the difference in 1hoir GEAR curriculum. Every year. PJ'Ojecl Ooor,pulling up new dry wnll and paint­ lives. TI1crc are lols of :u1gcls down here, GEAR holds an annual dinner during ing. The new facility will have a special Everything Is possible with God. I um BlockHL~cory Month. featuring:i cmen=d room-"the college room," where kids just an example or God at work!' • dinner 11ndon opportunily for 1heki

Aesof)'sFables were not wnlll!n for children- ..n,cy we re wriccen [0 help le11dcr,Improve ,hei r l1Vt!$and 1hehvcs o( the peopletho,c leaden .. rve. Aesop'sliiblcs-,. lo.Jen m ~ choius be""••n >1idt1h,ngs as gJ«d :tndgw,ng, ftm)l.>mp, (Add Florkln,n lcs true if oppllcoble) He invites lawyetsto rh,nk about character quali11csth.it CIC weihould both revereand revile --= = =-- In leaden. Or by check ro: Papanroniosho,,.,s how ~ville Publishrng, P.O. Box 12042 ACl

186 MAY 2003 LawyersRender Service · To clients · To the public · Ton1e profession YOUR LOCAL BAR ASSOCIATION

Alabama State Bar President Fred D. Gray of Tuskegee has chosen as his theme "Lawye rs Render Service" and is issuing a special invita tion to all local and specialty bar associations to j oin him in this statewide positiv e public image campaign.

The Alabama State Bar has developed a series of logos that wi ll be used on all bar correspondence, in all publ ications and at any bar event dur ing this year. Your bar association is invited and encouraged to participate in a sim ilar mann er.

Please complete and return the form below to receive your own associat ion's personalized logos to use for this purpose.

Association Tit le ------

Address ______

City/State/Zip ------Contact person ______

Telepho ne ------E-mai l ------

RETURN FORM TO: Susan And res, Alabama State Bar, 415 Dexter Ave., Montgomery, AL 36104 or e-mail info rmat ion to [email protected] .

J II I. \ /, 1\ R \ .\I A L \ U l E R 187 ations In Purchasing ERM CARE

ver 1hcPJl.~t few ye:m,tlle govcrnmun1, elder can, pmctilioncrnnnd private citizens h11vcawakened m the prospect ofgrowing oh!. Regurdlcssof how they feel nbout Otholarincvimbl e :aging,they have also recogni7,:dllae signific:ant cn.>1 invo lved in for nn nging population.For the go""1Mlen1.1his nx:ognidon m,ulved • concened lipllm'd on ru lens1in p:1rt by lobbyislSfrom the an.surnnccindusuy, 10conlrOI csca­ c<>\L,o( govemmem-fundednursing home_c:in:. T11rouima ~ries of Medicaidnurs­ l'EPmc:fog,gm ion, i1has become clear ahat 1hego,·cmn1e111 recognizes it cannot pay for 'jlf\illlllhome can: for an increasingly large elderly populouon The, tt.sul1is thn1recent l;i,,r::lw, lud a ;ublle encouragement towllf'd priva1c long,1am cnre msur.mre as the II to the rrol>lcmof caring forlhc elderlJ.Fot' its p;U1, 111t,,\lnbama Suuc Bar bas ~~-,jijii ~ 1he,·.Ilk! need for long-u:on c:irc insurance .md nowofT•" \lteh a-policy for its ~m1>en.1'i'p;ipcr da\C\l...esthe varioosaspecl> ol loog-1em1'"'"' 111,um11<>,lha1 should bl!CM!li1aried. \\'hak, th,, ,, slill uw 10 wane c.ttenL a.spa)'oul c.,pcnencc dcvcloptd. und especially ,~ the fcdcrJl go..-cmmcmha, become moo, i~ohcd an lon1,:-1crmcare insurance.poli­ CIC°' arc bccornmgmore ,umdardiud. although along .i ,,anety ot modtl,. Camin mini• mum ,111ndllnl.,''°" c.,isl in ,wh coverage.A5 one '\\ould a:.,pcc1.c0<11.- a considet:uion in the 1mn, of the policy, 300 the oldrole ofthwnb !hat le.. cxpcn,i,-eequals less qualey is normnll) found 10 be true m long•termcare in.surancens "ell. Tax Qualiflcatlon Feder.alhcnltl1 care lcgi~lntionrequiros ccnnin smndnnli7.cdbcncfiLS in ortklr to make a long,1cm1c :tre ln,umnceplan "u,x qualilk-dl'TI1is IM qu111ific11llonallows a ponion of long-1cn11care Insurancepremiums 10 be ltlX deductible on fodeml income Hixreturn~. Many ,1u1e.,,inoludlng Alnbamn. have provided stale income 1nxbt'nefilS .for such plans.

188 \1 A I 2 0 0 3 As is commonly seen in life insurance. the first dividing Une in that require a prior hospitalization before paying long,tcnn core long•tcnn cnrc insunmcc i, whcthur the policy is n i rou11poli cy or costs. This issues c.in be ex1remelyimpo l1Ml, asso 111c disnbllitic~ 3Jl individlllllpoli cy. Group polides nrege nerally employer pro­ requiring long-1enn care, such a;; Al1.hein1cr', disea,..e.o ften do not vided plans, or offered to closed nffiliutcd groups, such 0-~ the begin with a hospit.alslay. Alaba.mn Smte 8 nr. They arc more likely subject to redcroJrcgu la· DaRy/Monthly Paym e nt lion and ERJSArequire111tms . Unfortunately.some companiesarc How the policy pays is anolher issue in selec1ingloog- tenn cure still selling oon-qW11i6.cdpliw for long-tcnn = insumncc. So. insumnce.Some policies poy a Oat daily amount. Others pay acru­ the very fim question that should be askedis : "1$ this a qualified al cost up too certain dollar limit. Mos policiesset• dally limit planT All qualified plans wlll lul\'eo requiredsuucmem on the (such as SIOOper day) for care.while moreOeltible policies sci first page of the policy stating th:itthe policy is micndcdto satisfy paymcnl limi1S ODa monthly ha.sis. This permlLS paymc111o( high­ the requin,mcntSfor a tnX-qlllllificdpolicy . er daily fee amounts when continualdaily can, Is not requin:d. For Level s of care C.'Cdind ividuals to be period of benefilS. paid as bome health care providers. Others require that the provider be licensed nnd regulnicd. including regisu,ttCdupo n bene­ the husband. while pmviding ~ix ycnrs or care t'Qrthe wife. fits being collected Typicallya 90-dny period is n.x1u1red for titc Elimination Period waiver of premium benefit to apply. though longer periods arc also found. Other options abound. Cmeat emptor should be 1Jie 1110110 The climinntion period is lhe period of time under long-term in reviewinga long-teemcare insurance policy. c:irc prior to the policy providing benefits. Typically.this period is zero to ISOdays. with CQStS vuryingaccordingly. While some poli­ Amount of Coverage cies might h:1,-cIOQgcr periods or climinntion.they ~hooldbe How much is eooogb?The sin1plcstanswer is "ns mud! as you avoided.Often clients dlOOSCa 60-or 90-dny eliminationperiod cnn afford." But th.:tt"snot much help in committing too panicular basedon Mcdic:ircrules which pcrmilskilled nursing care ror a policy. The true llllS\\'Cf" is 'ilw depends... h depend.olon a ,'ariety maximum or 100days for persoos o,'Cf"65 . The cider law advisor of faclOR,financial. social and medic::il. should be aw.ire.howe-'Cf". that Med1can,.paidstays for skilled Family medical history must be considered in detcnnining the nursing care or 100d.~ys an: rclativclyn,,c. The mocun:snictivc need for long-tenn = insuronc:c.Cenninly a fnmilyhistory long-tem1care policies will nocpcnnit pcnods or long-termcare includingAW>eimcr's disease or Olherdebiliialing disease encs paid for by Ml"eredin thnt n relativelyyoung client who purchnses a long-termcare poli­ their ability 10 do so by their work sltunlionor their own family cy may become unnble to work. StUJ,the premiums must be paid tin:mces. 10 m.'linlllinthe policy. Most. though not nil. policies.provide for Ideally, long-termcore insurances hould be purchased o~pan of n comprehensivefinancial plan. includingestate pl:in11ing.in$ur­ noce planningnod other care considerations.The needfor long­ term careinsuraoce is parlially dependent on the tinanclal Mlllll · lion of the ctieru. Noi only "ill the client'$ financi:1lsi tuation ho,-e no imp:ict on lhe ability to pay for long-termcare insuruncc,bu1 also for the need for th:lt iosunlnce. Wh:u are the = or lhe client? The more significantthe fin.~­ cial 3SSCISof the clienLcspcciruly those illC'Omc,.producin; a.~ s. the less the need ror long-ll!ml care 1IISUl'ODCCto poy ror care. HOWC\'Cf",current as:selS an: alwayssubjcc1 to reductionor C\'ffl eliminationdue to a ,'arietyof circumst31lCCS.including df\orcc, 1'1W$\1iLnatural c:tll!Strophe. etc. Unless the client IS ''Cf)' wc.althy. self insurance i.~a risky proposiuon. lnoome or lhe client is an importMt f:w:1or,both in the ability to y for long-termcare insuranceand the need ror it. In de,wng a ~""",g-.r~cnrc plan, only thoseincome streams which will ,urvi,·c the disabilityof the client (Social Security.pen~iun und rcmement funds. other vested assets)shou ld be co11sidc1'Cd. Rememberth111 income rrom work will cease if the client becomes thsabled. Be conservativein considering income nvn.i.lnble.OUco fin(lllcin l plon­ ners, especially tl1oscselling insumnceor invc,inHJOlplnn,. pro­ vide pictures of the cLi.cnt's finnncinl ru111rcu~ing inOution Indexes. expected gains in value.e tc .. which paint o very positive finnncinl picture for the future. II is real dollars tltat couut. tiiough. Consider not only the cost of tl1enursing home. assisted living facility or favorableon both incometax and estate ta.,es. home healtll care. but the financial needs of tlle spouse or other The futemal RevenueCode permitsa deductionfor long-terui dependents in determining what impact long-tem1care costs care insurancepremiums based upon age and oilierfactors. The will have on ftnances. law permitsa deductionas part of ScheduleA Medical Expenses While Medicaid is an alternativeto long-term care insurance. for long-termcare. A 50-year-old individual, for example can it is a drastic alternative. The legal and insurance industry trend deduct $430 of long-termc are insurance premiums as a medical is against qualifying for Medicaid. Congress in recent years has expense. while an individualo ver 71 can deduct $2,860. As passed legislationind icating its strong disfavor of attempting to witll aU medical care expenses, deductibility is subject to a 7 divest assets in order to qualify for Medicaid.Congress has rec­ percent floor prior 10deductibilit y. ognized the federal welfares ystem is unable to care for the The client should check with his employer concerning avail­ increasing elderly population of the nation, and the increasing ability of long-termcare insurance provided through employee length of lifespans. ln addition, tax considerationshave been benefits. Depending011 the individuals ituation, the premiums provided for long-term care insurance which further indicates paid for long-term care insurance, deducted from employee pay­ tl1atCongress in heavily in favorof private funding of long-term checks, may qualify as pretax dollars. Attorneys providing care needs. especially through insurance. counsel to corporations should be aware of the tax deduction to Age and Health Factors the business for long-termcare insurance premiums provided to As with any insurance, the younger it is purchased,t he less employees as compensation. For self-employedindividua ls. expensive it tends to be. With long-term care insurance, there is long-tern1care insurancep remiums arc a qualifted expense under a low-end point, below which long-term care is generally not lhe MedicalSavings Account s (MSA) available to self-employed cost effective. The first "break point" for most policies tends to individuals and small businesses with le.,s tlian 50 employees. be age 50. At and after age 50, the cost of the policies begins to Long-term care benefits are not included in the estate of an increase in a direct line with the age of the insured. Some argue individualat death. While there is no direct benefit to an indi­ that the "time value of money" says you·re better off waiting to vidual's estate tax simation for long-term care insurance, it cer­ purchase long-termcare insurance and investing the money tainly can have a very positive indirect benefit. Witllou1lon g­ elsewhere until a later age. This idea has two major naws. First, term care insurance,depletion of estate assets during a lifetime in almost all cases, the dollars which should be spent on long­ for an individual requiring long-term care can be drastic and term care insuranceare not saved and investedelsewhere, but rapid. Consider a couple witll $500.000 in assets, where one of rather simply disappear into the typical spending habits of the the two individuals requires long-tenn care. Realistically. even cliem. TI1e client may have "saved" $ 10-15,000over a ten-year figuring tlle return on investmento f the half-million dollars. the period by not buying long-termcare insurance, but at tlle end of entire sum could easily be consumed in six to seven years, leav­ tl1eten-year period. not only do they not have the investment ing even the best crafted estate plans meaningless at the time of remm from that $ I 0-15,000, tlley don't have the original funds death. This assumes I.hee ntire amount is available for invest­ either. Secondly.even assuming the health of the client remains ment. Typically. individuals in this wealth bracket bave moch of good, each year after age 50 increases the premium cost to the their wealtli tied up i,1 the family home, and possibly a vacation client. Statistically, the dollars "saved" by not buying long-term home or time-share. resulting in less assets available to produce care insurance earlier are eaten up in the increased premiums income. The result of this is that in only two to lhrec years, tllc when1 .he insuranceis at a later date. family home might need to be sold in order to provide income All insurance policies are based on statistical information to pay necessary long-termcare expenses and living expenses about payout rates. ln Jong-term care insurance,health is a fac­ for the healthy spouse. tor in that statistical base. But lhe health concern issues in long­ Long.. tenn care insurance, whiJea relativelynC\Y insurance term care are very different Fromthe health concern issues for product, is one that is rapidly becomingincreasing ly important health or life insurance. Factors which are heavily considered in in an overall estate plan. It is a major planning vehicle for the health and life insurance, such as lifestyle, family history of governmentin attempting to reduce tbe spiraling cost of med­ cancer, etc. are of less concern for long-term care insurance. ical care, and a vital tool in ensuring the financialstability of Rejection or rating for life or health insurance does not neces­ our clients as they grow older. Each of us, whetllcr for our own sarily mean rejection or rating for long-term care insurance. A personal benefit, or for the benefit of our increasingly older previous incident of cancer, for example, is a high negative for clients, should become aware of what it is and how it fits into life or health insurance. often resulting in lack of insurabiUty. ln our plans for the future. • de1ermining insurability for long ..term care insurance, such a previous incident of cancer might be only a nominal factor, as cancer tends not to lead to long stays in nursing or assisted liv­ ing facilities. Don't let your client reject the idea of applying for Michael A. kjrtfandis II solo preclilkrlera'IMooloc,rnery . He receivedhi$ JO f m theJoMs School ot la w andhis UM in t a:t· long-termcare insurancebased on difficultiesslhe may have aliCllfrom die UnivenlTY ol A labamaSdlool ol llw. Hei:s a mem, had in obtaining life or health insurance. herof the EJdet low Commhtee ofbOth tile AmericanBal' Assoclrionand !he Al ab.1maSt.ate Bat. Ha c urrentlyse,ves as me Income and Estate Tax Issues YiaHllaifo r IlleMlKs LonQ-Tenn C.11. Mod'.. IN AllnmeyS. ly. Most of the impactthat long-tenncare insurancedoes have is

I II I. I / . I H ,I I/ I /. I II l /. R 191 . = he Alabama Lawyer Assistance Foundation brought to her from die Disciplinary C-Onuninee.an was created for the purpose of helping our inquiry or a case referred to her remains confidential T fellow members of the bar push away from even within the bar offices. She also entertains that other "bar." Whether serving alcohol, dnogsor anonymous inquiries. She can provide advice and just feeding deep depression, the world of addiction guidance for handling your situation, wbelher it is is a living heU for aU wbo Jive in it and for !hose your own problem wilh substancesor !hose of a who live with them. Alcoholism and addiction friend, colleague or acquaintance. destroy careers, marriages. families, parmerships, Jeanne Marie at ALAP can provide infonnation friendships,and, ulLimmely, lives. about the problem, about treatmentopt ions and other We aJJ know brothers and sisters in the bar who resourees, and about funding available for finaneiaUy have problems at the other "bar." Some have strapped members.ALAP also provides confidential, become alcoholics or addicted to other dnogs. Some structured programsfo,· monitoring recovering attor- suffer deep, clinical depression. Some are just on neys to help assure lhe member. families. panners. the road to tbat fate. No one is bo1111d to 1ha1road! and others of continuingso briety. Jeanne Marie can There is hope. Although those in the diroes of be reached a1 (334) 269-1515 or (334) 834-7576. addiction usually can't see it, hope exists for each Lawyers Helping Lawyers is a bar commiuee and every one or them. ·n,rough many fomis of whose members are committed to assistingtlteir feJ. assistance, guidance and counseling, through reha- low lawyers with problems relating to alcohol, bilitation, treatment and 12--Stepprogra 1s (such as addiction and depression.Thei r work is confidential AA, NA, AIAnon). and through fhe car' . of t&ir and informal. h is 001part of any reportingstruc1 ure fellow human beings, constructiv h dJlilling wilh the bar. hs members merely desire to be helpful is available 10any who seek it. An I works! Tens to any lawyers who are s1ruggling with alcohol or or thousands recover every year and escape from drugs, providing-l!nderstanding, information and this hell. suppon. You are ~come to contact any member of ·n,eA labama State Bar its LawyeLAss'sta ce LHL, and be or she willguide you 10t he help you Program ~· s La~ers Helping bwy:rs seek. Their phone numbe~ available through ,he Committe and the Alabam L.~wyV bar offices or through AI.AP. Assistanc' on (ALAF) combiQlJP'ensur} Finally,the Alabama/awyer Assistance that members of the Alabama S1ate Bar and ~ Foundation was form;xit? provide• previously families know of the problem, know of lhe Ju- ~· · g piece to ~puzzle,jina11cia/ assistance. tion, and know that help is available. The is a 50/( cr) charitable foundation. It needs focus naturally is on lawyers,judges an aw stu· n from YOJ.and others, by way oftax- dents. bm its help extends 10others whose lives the deductible contributions. Its fundraising staned in members touch. 2002 and has achieved significantsuccess. Over The programs available can address each varia- ~,000 has been pledged or received.More is necd- tion of the problem. Truly, no situ:lmique, e owever,and fundraising will continue to imeusi- although it often seems so to those invoJ. •d. The . 2003. trails have already been blazed, an ecd onJ ALAF makes loans (1101grants) to bar membera take die first step and rMch out for belp. who demonstrate!he ir inability to get the help diey The Alabama Lawyer Assistance Progmm needwithout financiala~sisiance. The assistance is (ALAP) is a service division of lhe Alabama small but significant. Often it is lhe difference Bar. Jts director, Jeanne Marie Leslie. receives between lhe lawyer ge1ting tbe treatmenthe needs or inqui.ries on a confidential basis. Unless a matter is sliding further down lhe slope toward disaster.

Keith Non11an.execu tive direc1orof th~ A . David ~Vooldridge,John Cooper lltJdSanford Bob Sta/1,rort!Jand Ht,rry Vanle of So11theasr and JeanneM<1rie Leslie. Al.AP director. ~J S of Sirote & Pennutt present a J,rvestn,ent:rd()nate $5,()()() to A..D\F. were prest11ted h'ilh a S~t·k by $20,000 check 10 Al.AF Director Jeanne Ken11e1!,\V. Hooks. presid~Ju , Alabtuna Ci\/1.IJusti ce Ft>uutlati()n,and Thon1t1 Edwards, a11ACJF ~ '-' I II I. 1 I 1 II 1 l/ \ J, l 11 ) I H. 193 Alabama La.:oyer Assistance Foundation Our deepest appreciation is extended to all of the following contributors whose generosity is making a difference. PLATINUM Paden & Paden, in memory of Robert Julian Brackin. Jr. $20,000 and above E. Paden Clim W. Butler Burr& Ponmm J. Massey Rolfe. Jr., in honor of Squire Brent Callihan Sirote Permuu Gwinn Charles Tyler Clark Rufus R. Smim, Jr. Willliam N. Clark, in memory of GOLD MEDALLION Marshall Timberlake $ 10,000-$19,9999 SPONSORS $ 500-$999 Donald L. Colee, Jr. William Easo11M itchell Susan Conlon Bameue Charitable Foundation SILVER MEDALLION Mark T. Conradi ScotU. Humphrey $5,000-$9 ,999 Ronald A. Davidson Dow Huskey Timothy L. Judith G. Lee Lewis, Brackin, Flowers & Hall Dillard Thomas M. Eden, lll Beasley, Allen, Crow, Melllvl11, Ponis Al Pennington William Carl Edwards & Miles. P.C. Jame~ E. Robertson, Jr. Southeast lnvcsuncnts Services, lnc. Etowah County lnns of Coun ~ FRIENDS Joseph M. Farley BRONZE MEDALLION $ 100-$499 William Baxter Fite $1 ,000-$4 ,999 Sam Adams TI1omas~ Poster Alabama Civil Justice Foundation George M . Akers GearyA ~ Ti111oll1y Arnold. in memory or Cbarlcs M. Allen. U RobcrtL . I~ Douglass Culp J. Knox Argo Stephco K. Gritlith Southwest Florida Community Maurice S. Bell Lee Hfi ilton, UI Foundation for Roan Heffington G. Douglas Benson Howetllli $ Tl f Family Fund Samuel Boyd Benlley James Hendrix L ~ Knight & Griffith R. Michael Booker Charles R. Johanso~ Dr. and Mrs. Mitchell Bradford W. Boles Alexander Jones

ALABAMA LAWYER _A_ssistanceProgram Are you watching someo ne you care about self-destructing because of alcohol or drugs ? Are they tellingyou they have it under control? They don't. Are they tellingyou they c:anhandle it? They,-ccfn""'t:.

1 94 MIIY 20 0 3 M. Kalhryu J,Jr , Adam Peck Janles c . niy, 111 James M. Tingle \Villio.mL. Prcli'er.J r. William K. Grisham Marlin E. Upmin, Sr. Wesley Pipes John M. Gruenewald Michael J. Upton J. Clinton l'illman Virginia W. HW1$ Casandra 0 . Vclordc Polson & Robbins Daniel T. Wnmes John W. Haley Roben F. Prince Lmda llaJ.I L H. W= W. S. Pntchnnl . Jr. Ann E. Wells Chnstophcr 8. H:mnon Johason Ri~ Roy W. Willinm s. Jr, Robcn M. HIii Jr. Samuel A. Rumon:. Jr. Raymond C. Winston Gormnn Houston, Jr. T. Dwight Sloan Lisa L. Woodi Cumin C. Humphrey O. Hampton Smith. Ill Richnrd L Wyau Daniel John-on Cnrol Ii . Stcwan F. William C. Sullivan MuceoO . Kirkland Ann Stone Surnblln Oliver Kitchens Youcan help make James C. TI1omus Bnmch 0. Klocss 0 . Stnnley ·n1ornton Richard C. Lncey surethat assistance Stephen M. 1\msmll Patricia S. Lackey is there. J.uncs A. Tomer J. Earl Langner Willinm Uurey Donuld N. L:lthcm Miclwc.lB . IViiUs Mary Kny Laumer Contribullons can be made by L:my F. Wnrrcn R. Blake Lazenby sending n check (or u lctte_rp ledgj.ng Steve E. Whitehead FrJDkLeon funds) to: Chad Wisc Arthur l.e$1ie Alabama Lawyer Assis= Tem:U Wynn R oben L Loftin Foundlltlon CONTRIBUTOR S Jack B. Long ~ c/o Jeanne Marie Lesli• $ 1--$99 H311')'Ly on Alabama Stnte Bar Anhur Lee Murtln, Jr. 415 Dexter Avenue AmSouth Bank Holly S. Mathews P.O. Box 671 Ouvid R. Arcndnll Tom Mnxwcll Vicki A. Bell Montgomery, AL 36101 Daniel 0 . McDowell / Dave Bcuoy Margnrct E. McDowell Rolph Bishop, Jr. George M. Bluke. Ill Hampton McFndden Murk W. Bond Chnrle.~ N. McKnight lruTy W. Bmntley James David Mllb Rebecca Brook.\ Nnsh & Associates Ira L Burleson John R. Nix Cecil Cninc Carlyle Noc George M. Cillcn A. Stcwwt o·eannon. JU William Z. Callen. Ill James M. Parker WayneCaner Oaudc e..Pau on Trncy W. Cary J. Onrtc Pendergra.s• Chris M. Champion Jeffrey Perloff Rea S. Clnrk Jock Ponerfielcl,J r. Scotty Colson J. Fred Powell Willi11111T. Co plin Ii . Samuel Pri111, Ill Robena C. OemJ)Stcr Gregory A. Reeves Disbarment In ASB No. 0 l- l 20(A). Low wns found guilty of violating rules l.l5 (a), l.JS (b). 8.4(a). (d) and (g). • Binningham attorney James Vincent Low was dis­ A.R.P.C. Evidence established 1bn1Low servedas batred from the pr:ictice of lnw in the Swe of the closing or se1tlemc.n1u11omcy on a loan closing. Alnbama effective January 27, 2003. by order of lbe Low dis~ fund$ to two cn,ditors in the amoun1 AlabamaSupreme Coon. The ,upn,rne eoun entered ofSJ9,829 and $IS,9S0 from his lrUst IUXIOllllt. its order basedupon the decision of lbe Disciplinary Those checks weft tttumed for non-sufficient funds. Boord of the AlabrunaS1:uc Bar . Low did not p.,y the i,,tumcd checks. which resulted in foreclosure procccding3 on the unpaid loan. In ASB No. Ol-052(A). Low wnsfo und guilty of In violnting rules l.l5 (a). I. l 5(b), S.4(n), (d) nnd (J!), ASB No. 01-12 1( A). Low was found guilty of vlolnting rules l.l 5(o), I. I 5(b), 8.4(n), (d} and (g), A.R.P.C. On January 30, 2001, Low sclf-rcponcd 1!101his trust account was more than $(,6.000 (1Ycr­ A.R.P.C. Evidence cstnblishcd thn1 Low served as drow11. Evidence, much of which wos subrniltcd by the closing or se11lcmc.nLn 11omey on n lonn closing. Low. indicnted that he bad used his trust uccount for Low closed 1hc lonn on February 6. 200I , but did not scverJJ years to pay office randpersonal living satisfy an existing l1rs1mortgngc in the amount of $54,41!6.IASB nos. 01-S2(A). 0 1-S3(A), 0 1- 120(A) expensesin an effon 10 avoid 1nx liens of the Jn1.crnnl Revenue Service. & 01-J2 1(A))

In ASB No. Ol-53(A). Low wnsfound gulhy of vio­ lating rules 1.15(a). 1.15(b). S.4(o), (d) and (g), Suspensions A.R.P.C. Evidence established that on Scpicmbu 19. 2000, 1..owsettled a motor vehicle :iccident ca.,;efor • Aorcncc nnomcy Sorry Neal Urnnnoo entereda a client for $30.000. Low reprcsenrcd1 0 the client guilly plea whereby he was suspended from the thnt the seulcment proceedswere in bis trust practice of law io the Stn.teof Alobama for a period account. Although Low ncccpted the funds and of one year retroac1ive 10 Morch I. 2002, the effec­ deposited them in10 his trust nccount. the client tive date of bis interim su~pcnsion. never received the seuleme.nLproceeds bccnusc the money was commingled and used by Low 10 pay In ASB No. 02-52(A), Brunnon pied gull1y to violat­ personal living expenses and oflice-rclmed expenses. ing rules I.I , 1.3, l.4(n). 3.2 and 8.4(:o) (d) and (g),

196 MAY 2003 A.R.P.C. Brannon failed 10 me bankruptcy schedules in an Prior 10 the hearing before !he Disciplinary Board, Kemmer accurate and timely manner in approximately 17 bankruptcy agreed 10 make restitution 10 !he fim1. remining a panial pay­ cases pending in the United Simes District Coun for the ment and executing a promissory note for the remaining bal­ Nonhem District of Alabama. ance. ln addition LO making restitution. Kemmer presemed other mitigating evidence during !be discipline phase of the ln ASS No. 02·68(A), Brannon pied guilty 10 violating rules proceedings, including his testimony evidencing great 1.1. 1.3, l.4(a). 1.4(b), 3.2, and 8.4(a)( d) and (g) . A.R.P.C. remorse aod contrition, his cooperation during !be discipli­ Brannon was retained lo represent a client in a bankruptcy nary proceedings, a lack of prior discipline. and good charac• case. During lhe course of the representation he was 10 also ter and reputation. [ASB No. 0 l-56(A)J help the client settle a motor vehicle accident case. After being paid an additional retainer for those services, Brannon • On January 27, 2003, the Supreme Court of Alabama adopted abandoned the client and her case, whicli resulted i.n the dis­ the December 24, 2002 order entered by lhe Disciplinary missal of the client's bankruptcy maucr. Board, Panel ll, accepting the conditional guilty plea entered by Mobile attorney Larry Clinton Odom involving 1wo bar In ASB No. 02-95(A), Brannon pied guilty 10 violating rules complaints filed against him. The Board entered a 91-day sus­ 1.3, l.4(a), 1.16(d) and S.4(a) (cl) and (g), A.R.P.C. Brannon pension, retroactive and lo run concurrent with a separate 91• was retained to represent a cLienlin a bankruptcy maner. day suspension imposed on March 12, 200l. Odom was During lhe course of that represenUltion,he abandoned the placed on inactive s1aius effective January 5. 2000. for non­ client and the client's ca.

In ASB No. 02-l 35(A), Brannon pied guilty to violating rules ln ASB No. 01- JS(A), Odom was bired in May of 199910 1.3. I .4(a). l.16(d) and 8.4(a) (d) and (&), A.R.P.C. Brannon represent the complainant wilh her divorce. The complainan1 was retained 10 represent cl.ienlSi n a bankruptcy mancr and 10 paid Odom $200 in auomey·s foes and she was to pay the fil­ re.~olveproblems the clients were having with 1beir mongage ing fee when the documents were prepared. Odom did not file company regarding payments on !heir mongage. Brannon the divorce proceedings until November 2000. Odom also abandoned the clients and their case. [ASB nos. 02-52(A). [ailed 10 respond to the bar's wriuen requests for information. Odom entered a guilty plea 10 violation of rule• 1.3 dili­ 02-68(A), 0205(A) & 02- 135(A)I I gence], l.4(a) [communication].and 8.J (b) [bar admission Gadsden attorney John David Floyd was interimly suspend­ and disciplinary matters], of the Alabama Rules of ed from the practice of law in 1hcState of Alabama pursuant Professional Conduct. All 01hercharges were dismissed. LO Rule 20{a), Alabama Rules of Disciplinary Procedure. by order of the Disciplinary Commission of the Alabama Smte In ASB 01-91{A), Odom was retained in or aboUlMay 1999, Bar effective February 19. 2003. The order of the to represent lhe complainant with a child suppo.rt muller. Disciplinary Commission was based on a petition filed by the Odom was paid S580 in attorney's fees and filing fees. lr1 Office of General Counsel evidencing !hat Floyd had June 2000, the complainant contacted the Alabama destroyed documenis having potential cvidentiary value by Depanmeni of Social Services about !he smtus of her case. removing pages from medical records containing blood test She learned tha1 nothing had been filed by Odom. Odom also repon results and an incriminating Slatcmeot by his clicoL failed 10 respond 10tbe bar's written requests for information. The facts and circum.

Centreville auomey Richard Michael Kemmer, Jr. was sus­ Effective December 13. 2002. auomey Allen Eugene pended from tbe p.ractice of law in lhe State of Alabama for a Perdue, Jr. of Binuingham, Alabama, has been suspended period of three years, retroactive to December 27. 2000, by from the practice of law in the S1a1e of Alabama for noncom­ order of the Alabama Supreme Coun. The supreme court pliance with the 200 I Mandatory Continuing Legal Education entered its order based upon the decision of the Disciplinary requirements of the Alabama State Bar. ("CLE No. 02-164) Board of ll1eAlabama State Bar. Kemmer was found guilly of violating rules 8.4(a) (b) (c) and (g), Alabama Rules of Professional ConducL Public Reprimands On December 27. 2000, Kemmer was involved in a single vehicle accident in wbicb he sustained multiple severe On September 18, 2002. the Disciplinary Board of the injuries. He was permanently blinded as a resuh of 1beacci · Alabama State Bar accepted Montgomery auomey Robert den1and bas not practiced law since the date or ll1e accident. .Bozeman Crumptoo's conditional guilty plea for a public reprimand wi1Jiou1genera.I publication in connection with the During h.is absence from his ot1ice, ii was discovered that complaint of Robert J. Russell. In 1998, Crumpton did some Kemmer and a non-lawyer employee misappropriated funds extensive title work surrounding lhe purchase of 45 acres of belonging lo the law firm. land by Larry Curry. This land was loca1ed in Montgomery

TIii \I \/1\\I\ I \11}/H 197 County, Alabama. On June 9, 1999. Curry sold about 12.5 lected from Lhefather). The father was 10 make his suppon acres of the land. Crumpton handled the closing. Out of d1e payments through Rogers's oflice, and Rogers was to receive proceeds of the sale, Crumpton was paid $7,500 for his past $ I per pay period for receipting and recording the payments. legal work in connection with this propeny. On October l, In 1997, the father tiled a Chapter 13 bankruptcy. Rogers's l 999, Curry sold the remainder of the property. Crumpton par1ner filed a claim for the $4,000 in child suppon arrearage. handled this closing as well. Crumpton kept $40,000 of 1be After the debtor's plan was approved, checks again came net sale proceeds. claiming that he and Curry bad become through Rogers's office. Rogers began deducting onc-d1irdof partners in the development of this pacticular property.There the monthly payments as attorneys' fees. Between 1997 and was no written agreement indicating this situation. Curry the date of Rogers's tennination by McNeil, he collected objected to Crumpton's claim and flled suit against him. The about $18,000 for her. and withheld about $6,000 for his fees. lawsuit was settled on December 4, 200 1. Curry's attorney Rogers testified at the disciplinary hearing that he told filed this bar complaint. The Disciplinary Board accepted McNeil that she had the option of having her payments made Crumpton's guilty pica because the operative facts showed through the circuit coun for a smal.l administrative fee. or that he and Curry did have some business relationships in through his office for n one,third deduction. Rogers testified regard 10 this property and its possible development. that it was her choice 10 be paid through his office. McNeil However, since all of Crumpton's dealings were oral and not denied this. She testified that she thought the reduced amount wri11en.he failed to comply with the requirements of Rule was a consequence of her ex-husband's bankruptcy. [ASB No. I.S(a) [conflict of interest] of the Alabama Rules of 00-21l(A)I Professional Conduct. dealing with business transactions between a lawyer and client. [ASB No. 00- IOS(A)I Mobile lawyer Carro ll Bar t Sullivan received a pnblic repri· mand witho111general publication for a violation of rules • Bessemer lawyer Richard Lar ry McClendon received a J.7(a) and 8.4(g), Alabama Rules of Professional Conduct. public repiimand without general publication for having violated rules 1.4 and J.5(c). Alnbama Rules of Professional Conduct. Sullivan was retained in June 1993 by St. Paul Fire & Marine McClendon was retained to represent the complainant in n lnsurance Company to represent Lheinterests of Dr. Anthony matter concerning " motor veh.icle accident. McClendon Savoie, an anesthesiologiS1,Wayne Zimlich,• certified nurse agreed 10 represent the complainant on a contingency-fee anesthetist, and their employer, Anesthesia Services. P.C.. in basis. however, there was no wriueo contingency-fee agree­ connection with a medical malpractice claim filed by Jan1es ment. Between February 20, 1999 and November 2000, the R. McGahagin resulting from his wife's having suffered from complainant met with McCJendonseve ral times regarding her an adverse consequence during surgery on Apiil 21. 1993 and case. However, McClendon never filed suit on her behalf. her eveaLUaldeath.

In a subsequent meeting wilh the complainant. McClendon Tbc case was styled James R. McGohagi11.cl lll. v. Springhill suggested a modification of die contingency-fee agreement Memorial Hospital, et (I/., CV 93-1571 in the Circuit Court of under Lhet enns where be would receive a 40 percent contin­ Mobile County. Alabama. While hod1the hospital and the sur­ gency and the complainant would pay a "non-refundable" geon were named defendants. they were dismissed before trial retainer of $750 and provide advru1cepaymelll for all case pursuant 10 motions for summary judgment. The trial pro· expenses. The proposed amended contingency-fee contract ceeded against Savoie, ZimLich and Anesthesia Services and was not reduced 10 writing. Thereafter, the complainunt had resulted in a verdict of S22.S million. difficully communicating with McClendon. On February 9, 2001, McClendon W'uS suspended from the practice of law in In September 1993.Zimlich dictmed a narrative of what the Srnte of Alabama in a non-related matter. Thereafter, the occurred during the surgery, which wa~ transc,ibed by complainant had no further comae, with McClcndon. [ASB Sullivan·s office and scot to SL Paul. In this narrative, No. 01-l04(A)] Zimlich stated Lhathe was instructed LOchange and falsify the anesthesia record of the surgery at die direction of Savoie. On January 31, 2003, Clanton auomey Joel Sims Rogers, Ill Zimlicb's stutements created a direct conflic1of interest received a public reprimand without general publication. for between Sullivan's clients. Savoie, Zimlich and Anesthesia violation of rules I .5(a) and 1.5(c) [fees], of the Alabama Services, whom Sullivan continued 10 represent. 'This conflict Rules of Professional Conduct. On August 20. 2002, the remained througholll the entire representation. Further. Disciplinary Board (Panel IV) imposed discipline consisting Sullivan did not obtain the informed consent of his clients to of an abated 45-day suspension, $6,000 in rc.stitution. and a his simultaneous representation of connictiog interests, public reprimand widiout general pubLication. In 1995, assuming this was a waivable conflict. The panel noted that Rogers was wilh the Jaw firm of Rogers & Waid and was during his disciplinary healing, Sullivan did not present any retained by Sherry Lynn McNei I 10 represeat her in a child evidence documenting consultation with the clients about the support matter. She paid Rogers a fee of $500. Additional conflict or the clients' informed consent and waiver of the fees were to be sought from the chlld's fnther. On July 17, conflict. 1995, a child support order was entered by the court requiring the fatllcr to pay basic child suppon of SI 13.31 per week, In addition. duiing the course or trial preparation in the med­ plus $20 per week for medical e>Lpenses.Roger s's firm was ical malpraciice case, Savoie testlfied in his deposition that aw,1rdedanomeys' fees of $500 plus costs (which were col- Zimlich fell below the standard of care in connection with his

198 MAY 2003 actions duriog the surgical procedure. Specifically. Savoie tes­ $200.000 to cover applicable "taxes and fees:· For a contin­ tified that Zimlich did not meet the srnndard of care when he gent fee ol'SJ,000.000. Williams was hired to assist in obtain­ did not timely notify him or tl1esurgeon of complications ing !he release of tbe money. This included help in raising tl1e expel'iencedby tbe patient. This testimony directly conl1icts necessary $200.000 from inve.\tors. with and co111rudic1s Zimlich' s sworn answer.; 10 interrogalO· ries, which were prepared and liled after Zimlich's consulta· In May 1998.Shc lbome met with the complainant about lion with Sullivan. At no time were the interrogatory answers seeking a Joan of $50,000 in exchange for a promissory note amended or changed 10conform to the contradicting testimo­ of $100.000 to be paid in three days. TI1ecomp lainant knew ny provided by Savoie. and !he record at and during the time Williams personally, and he told She.lbornc that he would of trial rcOected this conflict. loan tl1emoney. only if Williams recommended the transac­ tion. Ill a later meeting wilb Williams and Shelbome, Sullivan was weU aware of this particular conllict by virtue of Williams not only told the co111plainan1i l was a ''good deal," a December 5, 1994 le11er10 Joseph D. Oglesby. senior claim but also told him Williams had invested his own money in the representative of St. Paul, in which he stated: venture. The complainant later learned that it was Williams's cousin wbo invested tbe money. He wasnever told the "lf Dr. Savoie caru101be dismissed from the lawsuit or if tl1is cousin's three-dny note had long been in default. Funher, case cannot be settled (tbe prospecrs for seulement may hinge Wtlliams agreed to "stand behind" the deal, and guarameed upon the consti1u1ionnli1yof !he cap allhough tliis case does thal !he complainant would get his money. Williams later involve a survival/personaliojury claim), and lf the case has denied that he had made !his guarantee. but a recorded tele­ to be tried, J believe it would be difficult for me to represent phone conversation showed otherwise. The complainant paid both the ioterests of Mc Zimlich nod Dr. Savoie. Had Dr. the $50.000. and received Shelbome's $100,000 promissory Savoie lestified as I thought he would, namely ( I) that Mr. note, due in three days. This note was never paid as no money Zimlich acted within clinical judgment. and (2) that he did was received from London. not know tl1ecause of !he braio damage. !hen l saw uo con­ flict of representing the interesl of both Dr. Savoie and Mr. Sbelbome soon disappeared. Willian,s's efforts to contact !he Zimlich." London bank were unsuccessful. lnquiries to British cornmer­ clal aulhorlties revealed lhat this bank did nol exist. It became Sullivan did nol send a copy of this J1mer 10either Savoie or apparent to Williams thal the deal had been a fraud all along. Zimlich, nor did he write either of them sepamtely about mis conflict. Moreover, the condilions to resolve the connict The complainant repeatedly called on Williaros to make good imposed by Sullivan in the leucr, i.e. Savoie's dismissal or on Williams's guaramee. In September 1998, Williams, us sculemcot. never occurred. Further, Sullivan did not call auomey for the complainant ,ind his cousin, filed suiL against Savoie as o witness during the malpractice 1rial yel plaintiff's the absent Sholbome. Lo December 1998.default j udgments counsel used the conmcting portion of Savoie's deposition ill favor of the plaintiffs were rendered against Shelbome, bul during llis cross-examination of Zimlich. The existence of this Williams never recorded these judgments. conflicl was the reasonnlQtivating Su llivan's decision not 10 call Savoie to testify during the malpractice uial and adverse­ Because of pressure from bis family. WiUinmsgave bis cousin ly affected Sullivan's representation of Zimlich. a note for $100.000 and eventually paid her back, Williams did not take similar action on the complainant's loan. and he filed a bar complaioL The Disciplinary Board found Williams Sullivan'$ ~imultnneousreprescnliltio n of clients with directly guilty of violating rules 1.9 (a) [conflict of interest] and 8.4(c) coollicting interests violated Rule l.7(a), A.R.P.C.. which [misconduct]of the Alabama Rules of Profes$ionalConduct. provides thm a lawyer shall nol represent a client if the repre­ [ASB No. 00-20 1] • sentation of that client will be directly adverse 10 another client. Further, Sullivao·s conducl as outlined above adversely reflects on l1is fitoess to practice Jaw and. therefore, violated Rule 8.4(g). A.R.P.C., which provides thnl it is professional misconduct for a lawyer 10 engage in conduct U1atadversely reflects on bis fitness to practice Jaw. [ASB No. 97-333(A)] William (Bill) H. Odum. Jr. On fonunry 31. 2003, Binniughnm anomey WUlicLeon Board Certified Entomo logist WUliams, J r. received a public reprimand with general publi· Litigation Testimony - Entomology Consultations cation. On February 26. 2002, !he Disciplinary Board of the P.O. Box 157 1 Alabama State Bar fow1dWilliams guilty of certain ethical Dothan, AL 36302 violations arising out of the complaint liled agninst him by lhe complainant. Williams was retained by Robert Shelborne Office: 334- 793-3068 10assis t him in obtaioing funds on deposit in a London bank. According 10 Shelbome, !he Nigeciangovem111ent had Facsimile: 334-671-8652 deposited $31,000,000 to his account in this London bank. ln E-mail: [email protected] order 10 withdrow the funds, Shelbome had to first remit

f/Jf. ' \I . \H\\I .\ /.IU)1'.H 199 RATES Members: Twofree listings of 50wo rdsor lossper bar member per calendar year EXCEPT for •positionwanted " or ·position offered"hs 1ings-S351)6r insertion of SOwords o r loss,S.60 per addit ionalword ; Nonmembers: $35per i nsertionof 50words o r less.S .50 peraddilional word . Classifiedcopy and paymenl musl be received according10 1he follow fngpublishing schedule · July 2003issue-deadline May 5 , 2003; September2003 issue-de adlineJuly 7. 2003;N ovember2003 Issue-de adline September5,2003 . NOdeadline OJ(tenslons will be made. Sendclassified copy and paymen~ payable to TheAlabama La,~ Classifieds.cJo Kimberly Bamhan. P.O. Box 4156. Mcnlg0!11ery. Al 36101.

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11/f ,I . IH-tll\ I iH>IH 20 1 How do we Our .. improve ansu.'IJerIS lheimage ·0ne of the legal ...... •-·-,yer profession ata • today? ti me ..

Alabama State Bar President Fred D. Gray of Tuskegee chose as his theme "Lawye rs Render SeNice·a nd is issuing a special invitation to all local and specia lty bar associations to Join him in this statewide positive public image campa ign.

The Alabama State Bar has deve loped an eight-minute video presentat ion program ent itled "TO SERVETHE PUBLIC." Availab le at no cost materials include a ha ndbo ok with tal king points, the video and brochures for distribution. The presentat ion can be used as a ·stand-a lone· program or as a part of any meeting program. Perfect for commun ity, civ ic. church or schoo l groups. this presentation shows the many ways that today's lawye rs render seNice to their clients, thei r communities and their profession.

Your bar association is invite d and encouraged to participate in showing this video at every opportunity during the co ming year.

Please comp lete and return the fo rm below to receive your own association's copy to use fo r this pu rpose: Association Name.______

City/Sta te/Zip ______Contact person ______

Telephone ______E-mail,______

RETURNFORM TO: Susan Andres, Alabama State Bar, 415 Dexter Ave .. Montgomery , AL 36104, by fax to 334-261-631O or by e-mail to [email protected].

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