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January 1996 Volume57, Number J Pubtlshedsaven times a year (the June Issuets a bat ON THE COVER: dlreciory edition) by the AlabamaStale Bat, P.O . Box 4156, Montgomety, Alabama 36101 •4156 Earlymorning sunlight on the AlabamaCouemor's Mansion. The mansionwas built Phone (334) 269·151 S in 1907as a privateresidence. I n 1950, the stale purchasedthe mansion for Sl00,000 RobonA. Huffal PRESIDENT'SPAGE he AlabamaState Bar stronglysupports an inde are blessedwith one o( the finestjudicial systems in the coun pendentjudiciary, Lhe adherence to the doclrine try. Almostwithoul exception,our judges are honest, decent, of separationof powersand an adequatelyfund hardworking,learned men and women who are proud of their ed court system. The Motion was approved by positions and who are proud to serve the public. Each judge, II unanimous voicevote of the commission." whether district, circuit, court of appeals or supreme courl This is from the minutes of u,e board of bar commissioners' holdsan important, resp0nsibleposition worU,y of high public meeting held May12, 1995. It has been, and continues to be, esteem. the strongly held p0sitionof U,eAlabama State Bar. Therefore, We are coming through a troubled period for our court it is troubling to me and to most of our profession that our caused by the election controversy concerning the office of judiciary has receivedso much unwarrantedcriticism and has chief justice. That is over. It is time to put it behind us and been cast in such poor light by the media, mend fences. The 0. J. Simpson trial did some politicians and others. Unthinking not help and, unfortunately,I fear that the criticism of the court can undermine the upcoming '·tort reform"batt le may also be very institution whose purpose it is to wagedin a manner Lhatfurther disparages assure equal justice under the law for all our judiciary. because, as Justice Thurgood Marshall I am writing Lhisart icle for a November once stated, "We must never forgel that 15, 1995 deadline, so I have no idea what the only real source of p0wer that we as will be happen ing in the area of "tort judgescan tap is the respectof the people." reform" legislation when Lhisarticle goes We,as lawyersare, of course, bound by to press. However,I urge every lawyer U,e Rules of Professional Conduct from whicheverside of U,e "tort reform"contro disparagingour judges (Rule8.2(a) of Lhe versyLhey may take (or even if Lheyremain Alabama Rules of ProfessionalConduct). neutral)-to remember the great impor However,the media. the general public tance of the integrityof the judicialbranch and p0liticianswho are not lawyershave o( our government to everycitizen and to no such bounds. I believeLhat it is up to do what they can to steer U,e debate to Lhe us as lawyers lo not only uphold the let merits, or lack thereof, of whatever is pro ter and the spirit of Rule 8.2 in our 01vn John A. Owens posed and away from an allack on our statements and conduct concerning the judiciary. judiciary; I believe Lhat il is incumbent Our judges are somewhat defenseless up0n us as lawyerslo dissuadeoU,ers from when criticized by the media whether fair improper,angry or destructiverhetoric concerning our judges ly or unfairly.They can't come out and defend Lheirdecisions and our courts. publicly or otherwise defend themselves. I am not certain I do nol mean that constructive criticism is inappropriate what the bar can do in lhis regard eiLherbut I have requested or that we should not freely discuss the issues concerning the that Ann McMahan.chair of LheTask Force on Bench and Bar court, even positivelytaking sides in judicial elections i( we Relations.ask her task force to study the matter to be able to wish or lhat we should not propose and advocate improve assist the bar in responding in some systematic and appropri ments in the system. In fact, rule 8.3 appropriatelyrequires ate manner whenever judges or lawyers are subjected to lawyersto rep0rt improperconduct of judges under certain cir unjustified criticism in U,e media. I have also written letters cumstances.However, rhetoric which questions the very fabric urging various public officials to be mindful of the detrimen and integrity of judges or the judicial process must necessari tal effect unbridled rhetoric toward Lhecourt can have upon ly destroy,or at least damage. Lhe"on ly real source of p0wer" public confidence in our judic ial system. Perhaps you can referred lo by Justice Marshall- the respect of the people. think of other ways that the Alabama State Bar can assist. We Whyshould we expectpeople to obeythe orders of our courts welcomeyour suggestions. or evenshow up for jury duty if Lheyare reading daily in their Youcan certainly assist by being positivein your statements newspapersor hearing over U,eir televisionthat the S)•Stemis about our courts which you make to your clients, friends, broken,the judges are bought and the like? familyand acquaintancesand in your own actions toward the Our judiciarywith its jury system has workedwell to protect court. I think that by a positivecampaign, undertaken by each the rights of our citizens and to enforcetheir legal obligations lawyer,focusing upon U,e significant role our courts play and in criminal and civilcases LhroughoutU,e history of the United the high integrity of Lhevast majority of Lhemen and ,~omen States. It works well today. Literallyhundreds of cases of one who serve as judges we will keep "the respect of the people'' in typeor another are tried throughout this stale everyweek. We the Judiciary.Won't you help? • 4 I JANUARY1996 THE ALABAMALAWYER A CPA CAN SEE MORE lN NUMBERS THAN JUST NUMBERS. (APPARENTLY, THE EYE IS THE WINDOW TO MORE THAN JUST THE SOUL.) • • • • • • • 1 ' • • • • 1 ' • • • • • , • • Tn every number, there i$ ;i quc$tion . Is your re(lrcn1cnt ph1n rhc best 1r could br:~ \Vhat will br chc impact o( your co111p;i.nfs merger "'irh :inochcr? \Vhcrc will you rJnd the captt11J you need? But \\'1thout tht" ,•1sion to scc rhc rrue meaning w1th1n rhe nu1nbcrs, the :-tn,:,wcrscan rcnl::aln fnucr11C1ngl)'obscu red. A. CPA can pr0\'1dc the fin;anci;iJ 1ns1ghrs so crucial to C\'eryrh,ng from rctiren1cnt planning to c,·alu.at1ng prospccti,·c mergers and ferreting ouc re-engineering opportun 1rics . You SC'c number!.. We St"C' opportunities. (CPA) THE CPA. NEVER UNDERESTIM,ITE THE VALUE. A,ntn.an frut.itutt o(Ccmfirw:l l\1Nic Aceounr.tJ\U EXECUTIVEDIRECTOR'S REPORT he nursery rhyme "Humpty Dumpty"is familiar to gents are essentially subsidizing the state for these constitu all. As you recall,Humpty Dumpty was perched pre tionally mandated protections. cariouslyhigh atop a wall when he fell and broke 1\s you know. the Volunteer Lawyers Program was created into many pieces. Neither the king's horses nor by the AlabamaState Bar to encourage lawyers from across IIthe king's men were able to put Humpty Dumpty back togeth Alabamato contribute up to 20 hours of civil pro bono legal er again. services. Despite this program's having one of the highest par l have thought about this nursery rhyme often over the last ticipation rates of any pro bono program in the country, there several months as Congress has attempted to dismantle the are many unmet legal needs of citizens throughout this stale. Legal Services Corporation (LSC) and The private bar's work through the Vol remove funding for post-conviction unteer Lawyers Program in cooperation defenderorganizations (PCDO's) including with the Legal Services Corporationmeets Alabama's own Capital Representation only a portion of our citizens' total civil Resource Center. If Lhis happens. who legnl needs. Alone,the private bar is unable will fill this void-who will pick up the to meet these enormous needs. Our justice pieces and carry on the work of these system. both in Alabama and elsewhere. organizations,both in Alabamaand across depends on well-staffed Legal Services' America? offices. Unfortunately, there are too many in Similarly, the effectiveadministration of Congress ,vho believe this is a pro bono justice in capital cases will be adversely responsibility of the private bar. As one affected if the Alabama Capital Represen member of Alabama's own congressional tation Resource Center ceases to operate. delegation expressed: ··1 believe that all The House Appropriations Subcommittee Americans ought to have access lo legal on Commerce.Justice, Slate Judiciaryand representation, but many of the routine Related Agencies voted on June 28 to legal cases could be effectively handled include no funding for PCDOsin its dran Keith B. Norman through programs organized by interest bill for fiscal year 1996. As Alabama's ed bar associations:· This expectation is PCDO, the Resource Center depends on unrealistic because the legal profession is these funds for the greatest portion of its already doing a great deal lo help meet the civil legal needs of operating budget. The Resource Center was established in the -poor. Likewise, when lawyers are paid to represent indi 1988 through the efforts of U1eAlabama State Bar to address gents in criminal cases, the hourly pay is so low it does not Continuedon poge8 cover a lawyer's overhead. Those lawyerswho represent indi- Sunrise on the Alabama Governor's Mansion - Photoby PaulCrawford, JD, ClU 6 / JANUARY1996 THE ALABAMALAWYER DataSoj't 's ALABAMA LAW LIBRARY ON CD-ROM A SingleCompact Disc contains: DataSoft's search , OVER 40YEARS OF CASESFROM e11gine is extremely THE ALABAMASUPREME COURT power/Ill a11d easy to , COURT OF CIVIL APPEALS 11se. Eve11 a 11ovice , COURT OF CRIMINALAPPEALS ca11 be up a11d running ifl 1111der f THECOMPLETE ALABAMA CODE ANDRULES OF COURT fifteen minutes. There is simply not a Spendyour time practicing law, not searchingfor it. more accurate or efficient way to do Nowat a price everylawyer can afford: legal research. 499°0 TO ORDER CALL 1-800-255-3803 THEALABAMA LAWYER JANUARY1996 / 7 Executive Director's Report fundingwas slashedby over 30 percent and severe limitations Contmuedfrom page 6 placed on the use or its funds. Few in Congress apparently realize the disruption dismantling LSC would have on the the critical need of post-conviction representation of Alaba delivery of civil legal services to the poor in Alabama and ma's extremely large death row population. Then-state bar across the nation. WhileI am sure there is room for improving PresidentBen H. Harris, Jr. of Mobile appointed a committee the means by which those services are currently delivered,I chaired by former Governor Albert P. Brewer to study this am not convinced that the block grant program will result in problem.After intensive study, the committee recommended a better deliverymechanism . to the bar commission the creation of the Resource Center. lam sure that the effortsto terminate LSCthis year will not This recommendationwas unanimouslyaccepted by the com end the efforts to abolish it. Apparenlly,LSC opponents hope mission. to kill it by providing no funds for the program in the FY '97 Althoughthe ResourceCenter provides some direct represen budget. Or, they may move ahead with the block grant bill, tationof death row prisoners, its principalmission is to furnish which stalled in this session, that would eliminate LSC and expertadvice and assistanceto appointedcounsel in capital cases provideminimal funding to states for only two years. as well as to appointed counsel in federal habeas corpus litiga The private bar's voluntary pro bono representation of par tion. The privatebar's commitment to the ResourceCenter has ties in civil and criminal matters indicates its support for our continued each year since its inceptionwith significant grants nation's commitment to "equal justice under the law." from the AlabamaLaw Foundation. Despite these funds,which Despite significant pro bono services provided by the bar, last year totale.d approximately$100,000, the ResourceCenter there are still thousands of citizens in Alabama who are dependsmainly on federalgrants to carry out its mission. unrepresented and therefore denied access lo our system of As I write this column, the budget process is stalled and the justice. Adequatefunding for LSCand the ResourceCenter to federal government has shut down. While the future for the retain full-time povertylawyers o ught to be a high priority. I Resource Center is extremely bleak, LSC and its funding hope you will take time to contact members of Alabama's appear to be safe for at least one more year. Congressional Congressionaldelegation letting them know of your support foes have attempted to dismantle the entire L,egalServices for restoring LSC's funding to at least 1995 levels and, fur operation and institute block grant funding for delivery of ther, your support for full funding or PCDOsso that the civil legal services nationally. [n spite of the reprieve, LSC's ResourceCenter will continue to operate. • Judicial Award of Merit Nominations Due The Board of Bar Commissioners of the Alabama State Bar will receive nominations for the state bar's Judicial Award of Merit through May 15, 1996. Nominations should be prepared and mailed to Keith B. Norman, Secre tary, Board of Bar Commissioners , Alabama State Bar, P.O. Box 671, Montgomery , Alabama 36101 . The Judicial Award of Meritwas established in 1987, and the first recipients were Senior U.S. DistrictJudge Seybourn H. Lynne and retired CircuitJudge James 0 . Haley. The award is not necessarily an annual award. It may be presented to a judge whether state or federal court, trial or appellate, who is determined to have contributed significantlyto the administration of justice in Alabama. The recipient is presented with a crystal gavel bearing the state bar seal and the year of presentation. Nominations are considered by a three-member committee appointed by the pres ident of the state bar, which then makes a reoommendation to the board of bar commissioners with respect to a nominee or whether the award should be presented In any given year. Nominations should include a detailed biographical profileof the nominee and a narrative outlining the signifi cant contribution(s) the nominee has made to the administration of justice. Nominations may be supported with letters of endorsement. 81 JANUARY1996 THE ALABAMALA\1/YER en l1J l1J ~ ~- Cl <( 10 m ....m ...J ...J 11 a:: <( m l1J i-;~ Cl) <( ~ m<( j <( ALABAMA STATE BAR FALL 1995 ADMITTEES MichaelKev in Abernathy RobertEdward Buccare lli LauraAnne Dickey DonBradford Hardin RobertBrett A 10 I JANUARY1996 THE;ALABAMA LA WYER WilliamLovard Lee. JV Stephen WrighlMullins Brett AlanRoss BryanAnthony Thames ;\Ian DanielLeeth Paul BradleyMurray RichardWayne Rowell JessicaMarie Wilson Thompson TracyAnn Davis Leeth JosephVincent Musso KristinLee Rueckert FrederickMartin Thurman. Jr. WilliamAull Leitner. lU KeithAnderson Nelms WilliamJoseph S. Rushing,lU Johnny LeeTidmore MaryLauren Lemmon DeborahMoore Nickson ManningTodd Russell.Sr. MidmelKenan Timberlake VanessaLeonard Hugh ClareNickson. 111 MarkDaniel Ryan MarieMichele Treubig TraceyLynn Le\,;is Charles BartonNorth KimberlyAnn Ryberg Laura LynneTrimble La RonicaKing Lightfoot AshleyParker Norton LeonYelvington Sadler, IV JosephKarl Trucks JeffreyPatton Lisenby EberechukwuNkechinyere John WallaceSavage Brian DennisTurner. Jr. LeeWendell l..oder Nwakudu DavidDawson Schoel WellsRutland Tu mer, III RichardChapman London BrennanCollins Ohme Stephen LeeScott Je(( GeorgeUnderwood DavidWayne Long Jerry ClydeOldshue. Jr. DonaldMark Seib John JeffersonUtsey StevenFrancis Long Jobe ThomasOtt DavidEdward Sewell VirginiaChristine Green MelanieLela Looney DonaldRay Oulsnam James KimbroughSheek, IV VanHom WendyLeigh Love BarryCurtis Page PatrickMichael Shegon LisaDawn Van Wagner Catherine Ann Loveless Frank LeonParker, Jr. Allison Shelley Michael J. Velezis MichaelRobert Lunsford John RobertParker MichaelDavid Sherman NancyPickens Vernon LouisBuisch Lusk, Jr. MichaelEdward Parrish David WalterShipper Joseph Holl Vinson FrancisXavier Lynch BruceMen Parsons Laura Anne Simmons CarolineE lizabeth Walker Paul FrederichMalek MelodyKay Pate DerekWoodly Simpson MaryKrist i Wallace KimberlynPalrice Malone BenUeyHines Patrick SpenceArthur Singleton CaryThomas Ward, Jr . MemoryClair l>fo loney JessicaDianne Kirk Patterson AmyRenee Walker Sinnott John AndrewWatson. I II LorrieAnn Maples KevinWard Patton James PaulSizemore RussellJackson Watson MarshallClay Marlin KellieRenee Payne KendraBabette Sexton Slagle John GriffinWalts RobertLay Marlin Albert DashiellPerkins. IV James BrianSlaughter DennisRussell Weaver Shannon Cail Marty James Bruce Perrine RichardWayne Sliman John CoxWebb. V Elise Beth May ThomasHarry Perrine Stephen I Iugh Smalley RebeccaGarity Webb NancyE:llen McCarthy RichardRoy Pettit JeffreyC..rl Smith ClydeO'Neal Westbrook. m TraceyMichele McCartney GingerLynn Pierce Joseph Earl Smith DarrellZane Westmore land MitchellAllen McCoy James HillaryPike KyleThomas Smith Sharon ElizabethWheeler TracyAkiba A li McCracken SamuelWesley Pipes. V Shannon MichelleSmith MaryCarol White BrianAUen McDaniel John McCavockPorter Stephen Bruce Smith CylerBenton Williams David WhittingtonMcD01,·ell CarrieAILison Powell Stephen CilberlSmith MichaelleChere Williams LaurenceJones McDuff Raymondt:ric Powers. 111 WilliamDavid Smith. Jr. Pamela Williams StaceyLynn McDuffa MarkDavid Pratt AnnaLaura Spencer DennisQ\\•en Willian'lson RobertSean McEvoy DarrylMark Price MaryClaire St. John Julie Louise Wills StephanieNoel McGee Ronniet-lax\\•ell Prine AmyElizabeth Staats Joe J(eithWindle RusselAllan McGill RichardJoe Rupert Raleigh.Jr. LouisJames Stein. Ill MichaelAnthony Wing DonaldPatrick Mcl(enna. Jr. CarlosStanford Randall D;,vidPatrick Stevens WilliamChristopher Wise John MurphyMcMillan, Ill HazelCarla Carden Ray WilliamWayne Stewart James StanleyWilcher, Ill AndreaDawn Jones McNeil Susan RachelRedmond EdwardSimpson Stoffregen. III DeannaLynn PlummerWood DouglasAlan McSwain Charles LeroyRice, Jr. Cal)•Wyatt Stout John MacAlpincWood Jonathan BrockMedlock. II RichardLione l Rice,Jr . Charlenelrvette Stol'all Paul OliverWoodall. Jr. MatthewJohn Melaun ThomasEdmund Rimn,er Jay Elton Stover NicholasWyckoff Woodfield ThomasPlowden Mellon. IV ChristiAnn Hoberls Brian Keith Strange GregoryBlake Wormuth PeggyJo PentecostMiller TracyLane Roberts Michael))avid Strasavich ChandraCarol Wright BarneyAndrew Monaghan AlyceStreet Robertson Joseph Frank Strength ChristineWyatt Wright Joe WilsonMorgan, Ill AudreyDen ise Robinson DebraAnn Trane l Sutton JosephineRose Wright OscarMorgan, lll Rfchard Whitney JacobCa lvin Swygert.Jr. Peter McKeeverWright Craig8,yanl Morris Rockenbach.I I Williaml THE ALABAMALAWYER JANUARY1996 I 11 LAWYERS IN THE FAMILY David Sch0 Stephen C. Smilh (1995), Jack IV. S mith David Seth Furman (1995) , Naomi Fur • C. Anthony Graffeo (1995) and Nick Craf (1953), Deborah Smith Seagle ( 1987) and man Kipp (1991) and Howard F'urman feo, Jr. (1964) (admitteea nd father) J. Earl Smith (1964) (admittee, lather, (1985) (admittee, sister and rather) cousin anduncle) ~ I .;. ~ :~~. •• r ~ " A• Harry W. Gamble, Ill (1995) and Harry IV. Thomas E. Dasinger ( 1995), Sharon R, John R. Parker (1995) and John IV, Parker Gamble, Jr. (1960) (admiltee and father) Hoiles (1984) and Michael A. Dasinger, m ( 1971) (admittee and father) (1991) (admittee, molher and brother) 12 I JANUARY1996 THE ALABAMALAWYE R LAWYERS IN THE FAMILY Denk WoodlySimpson (1995) and Fred J. Jefferson Utsey (1995) and William L. Elizabeth A. Beason (1995) and George M. Bryan Simpson ( 1965) (admiltee and Ulsey (1965) (admillee and falher) Beason, Jr. ( 1969) (admillee and father) rather) ·.~ ~ •,~ I •; ,~~· ," ' ., J --- --" Robert WinstonLee (1995) and Robert Patrick P. Casey (1995), John S. Casey William Lovard Lee, IV (1995) and Wi!Uam• Edward Lee (1989 ) (admittee and father) (1957), Carolyn P. Casey ( 1984) ond Frank Lovard Lee, Ill ( 1968) (admitlee and falher) IV. Ha1wey( 1952) (admittee, father, mother and uncle) Geoffrey DeWittAlennder (1995) and Judi Rachel Maria Howard (1995) and Norma Jeff J. Bradwell (1995) and John R. Brad· Mitchell Alexander (1991) (admittee and Harwood(1963) (admillee and mother) well (1988) (admillee and brother) molher) THE ALABAMALAWYE R JANUARYJ 996 / 13 LAWYERS IN THE FAMILY Dona Rister Gach,! ( 1995) and Russ Gache Bob Battle (1995) and Joe Battle (1967) AlyceStreet Robertson (1995) and Judge (1995) (wifeand husband admittees) (admittee andfather) William H. Robertson (1969) (admittee and father! Joe W. Morgan, ill (1995) and Joe IV. Mor• Meteasa Collins (1995) and YolandaHarris Gerald DeWitt Colvin, Ill (1995) and Ger gan. Jr. (1982)(admittee and faU1er) (1995) lco-admittees (cousins)I ald D. Colvin.Jr. (1972) (admittee and father) SidneyM. Ham,11 , Jr. (1995) and Sidney ·rr.cyO. Leeth (1995) and Alan D. Leeth Jennifer C. De.•ereaux(1995} and WandaD. M. Harrell (1954) (admittee and father) (1995) (wifeand husband admittees) Oe,•ereaux(1978) (admiltee and mother) 14 /JANUARY1996 Tl-IEALABAMA LAWYER LAWYERS IN THE FAMILY ST A TISTI CS OF I N TE REST Number silting for exam...... 542 Number certifiedto Supreme Court of Alabama ...... 376 Certificationrate ...... 69 percent CERTIFICA TI O N PERCENTAGES: Universityof Alabama School of Law...... 94 percent Cumberland School of Law...... 89 percent Birmingham School of Law...... 39 percent Jones School of Law...... 40 percent Charles Gregory Burgess ( 1995) and MilesCollege of Law...... 3 percent William P. Burgess ( 1973) (admiltee and falherJ 1996 Judicial Conference of the Eleventh Circuit The meeting of the Judicial Conference of the Eleventh Circuit will take place April 25-27, 1996 at Marriott 's Bay Point Resort in Panama City Beach, Florida. The conference is being convened by the judges of the Eleventh Circuit to consider the business of their respective courts (the court of appeals, and the district and bankruptcy courts in Alabama , Florida and Georgia) and to devise means of improving the administrat ion of justice in those courts. A limited number of spaces are available to any attorney admitted to practice before the court of appeals or any of the district courts of the Eleventh Circuit who wishes to attend the meeting. If an attorney is interested in attending this conference, he or she should write to the Circuit Exec uti ve, Norman E. Zoller, at 56 Forsyth Street, NW, Atlanta , Georgia 30303. By return mail, he will forward a conference registration form, describing the confer ence's hotel accommodations, room charges and the substantive and social programs of the meetings. THE ALABAMALAWYER JANUARY1996 115 ABOUTMEMBERS, AMONG FIRMS Alabama35203 . Phone (205)323-0123. 3310. Phone (334) 821-3892. ABOUT MEMBERS Earl L. Dansby announces the opening London & Yanceyannounces that F. R. Stan Morris announces the reloca of his office at 418 Scott Street, Mont Daniel Wood Jr., former law clerk for tion of his office to 1232 Blue Ridge gomery, Alabama 36104. The mailing Justice ReneauP. Almon, Supreme Court Boulevard,P.O . Box59767, Birmingham, address is P.O. Box 4807, Montgomery of Alabama,has become associatedwith Alabama35259. Phone (205)823 -8916. 36103.Phone (334)265-3493. the firm and that Robert W. Norris. Michael L. Jones, Jr. announces the Major General,USAF (Rel.), f ormer USAP DeborahW. Hicksannounces the relo Judge AdvocateGenera l and former gen cation of her office to 1132 N. Eufaula opening of his office al One East Court Square, Andalusia, Alabama 36420. The eral counsel. Alabama State Bar, has Avenue, (Highway 431 North). Eufaula, joined the firm of counsel. Officesa re Alabama 36027.Phone (334)687-8369. mailing address is P.O. Box 957, Andalu sia 36420. Phone (334)2 22-0111. located at 1000 Park Place Tower, 2001 AndyNelms announces the openingo f Park Place, North, Birmingham, Alaba his officeat the BeUBuilding, 207 Mont Rick Battaglia announces the opening ma 35203. Phone (205)251-2531. of his office at 5950 Carmichael Place. gomery Street, Suite 720, Montgomery, Cabaniss, Johnston, Gardner, Dumas Alabama36104. The mailing address is Suite 102, Montgomery,Alabama 36117. Phone (334)244-2983 . & O'Neal announcesthat Diane H. Craw P.O. Box 70508, Montgomery 36107. ley has joined the firm. Officesare locat Phone (334)265-2639. M. Scott Harwellannounces the open ed at 700 Park PlaceT ower,Bi rmingham, S. Shawn Sibley announces the open ing of his officesa t 1009E. ChurchStreet, Alabama 35203 and 700 AmSouth Cen ing of his office at 635 MadisonAvenue, Atmore, Alabamaand 633 PalafoxStreet, ter, Mobile, Alabama 36602. Phone (205) Montgomery, Alabama 36104. Phone Flomaton, Alabama.T he mailing address 716-5200, Birmingham. Phone (334) (334) 834-7574. is P.O. Box 26, Atmore 36504 and P.O. 433-6961, Mobile. Drawer 764, F'lomaton 36441. Phone, RichardD. Jenson announcesthe open Atmore office, (334) 446-1000. Phone, C. John Dezenberg, Jr. and Paul J. ing of his officeat 1538Gu lf Shores Park F'lomatonoffice, (334) 296-2000. Dezenberg announce the formation of way, GulfShores, Alabama 36547. Phone Dezenberg & Dezenberg. Offices are (334) 968-4529. The mailing address is William JI. Lindsey announces the located at 908-C N. Memorial Parkway, P.O. Box3531, GulfShores 36547. opening of his office at 103 S. College Huntsville, Alabama3580 1. Phone (205) Avenue. Salem, Virginia 24153. Phone 553-5097. Edward C. Hixon announcesthe open (540)375-3833. ing of his officeat 472 S. LawrenceStreet, Lightfood. Franklin & White Suite 201, Montgomery,Alabama 36104. KelbyE. Strickland, Jr. announcesthe announces that James R. Sturdivant, The mailing address is P.O. Box 2386, relocationof his office to 608 38th Street, Robin Hansen Graves and Charles L. Montgomery 36102-2386. Phone (334) South, Birmingham, Alabama 35222. Rice, Jr. have joined the firm. Offices 834-8230. Phone (205)250-0900. are located at 300 Financial Center, 505 KarenS cent announcesa name change N. 20th Street, Birmingham, Alabama Bill C. Messick announcesthe opening 35203.Phone (205)581--0700 . of his officea t One OfficePark, Su ite 210, to Karen Tosh and that she has opened Mobile, Alabama. His mailing address is a mediation practice. Officesa re located Janecky, Newell, Potts, Hare & Wells P.O. Box 91357. Mobile 36691. Phone at 830 Jefferson Street, Paducah, Ken announces that Benjamin H. Albritton (334)380-0533. tucky. The mailing address is P.O. Box and Karen $ . Whatley have joined the 1095, Paducah42002-1095. P hone (502) Robert C. Methvin,Jr. announces the firm in the Mobile office,l ocated at 3300 443-9600. First National Bank Building, Mobile, relocation of his office to the Highland Building, 2201 Arlington Avenue,South. Alabama 36652, and that Stephanje R. White,Kori L. Clement, MichaelJ. Cohan Birmingham, Alabama 35205. Phone (205)939-3006. AMONG FIRMS and Celeste L. Patton have joined the Birminghamoffice, located at 1901 Sixth D. Carlton Enfinger announces the Haygood, Cleveland & Pierce an Avenue, North, Suite 2130, AmSouth relocation of his office to 822 N. Monroe nounces that ~lichael Sharp Speakman Harbert Plaza, Birmingham, Alabama Street, Tallahassee. F'lorida32303. Phone has become a partner. The new name is 35203. (904)425 -2828. Haygood, Cleveland, Pierce & Speak Berkowitz, Lefkovits, Isom & Kushn H.S. Baggaanno unces the relocationof man. Officesare located at 120 S. Ross er announces that Hewes T. Hull, Lori his officeto 2000F'irst Avenue, North, S uite Street, Auburn, Alabama. The maiI ing L. Duwve, Elise B. May and Frederick 210. Brown Marx Tower. Birmingham, address is P.O. Box3310, Auburn36831- M. Thurman have joined the firm, local· 16 /JANUARY1996 THE ALABAMALAWYER ed at 420 N. 20th Street, 1600 SouthTrust the firm. Offices are located al 102 S. become an associate. Officesare located Tower, Birmingham, Alabama 35203- JeffersonStreet, Athens, Alabama35611. at 2903 7th Street, Tuscaloosa. Alabama 3204. Phone (205) 328-0480. Phone (205) 232-0202. 35401. Phone (205) 759-1512. Kilpatrick & Cody announces that Smith & NeSmith announces that C. Hubbard, Smith, Mcllwain, Brakefield Martin R. Tilson, Jr., formerly counsel Thomas Ward,Jr . hasjoined the firm . The & Shattuck announces that Jerry C. Old at Long, Aldridge & Norman. has joined Honorable Carl D. NeSmith, Sr., retired sh ue, Jr . has become an associate. the partnership in the Atlanta office, circuit judge, remains with lhe firm of Officesare located at 808 Lurleen Wal located at 1100 Peachtree Street, Atlanta, counsel . Offices are located al 204 3rd lace Boulevard, North, Tusca loosa, Georgia30309. Phone (404) 815-6500. Street. North, Oneonta, Alabama35121. Alabama 35403. The mailing address is Rushton, Stakely, Johnston & Cam,!! The mail ing address is P.O. Box 8. P.O. Box 2427, Tuscaloosa 35403-2427. announces that Patrick M. Shegon and Oneonta35 121 Phone (205) 625-5505. Phone (205) 345-6789. AlyceS. Robertson have become associ Lewis, King, Krieg. Waldrop& Catron Watson,Fees & Jimmerson announces ates. Officesare located at 184 Commerce announces that James D. Harris Jr., for that M. Clay Martin has becomean asso Stree t, Montgomery, Alabama 36101. merly with Harlin & Parker. has joined ciate. Offices are located at ArnSoulh Phone (334) 206-3100. the firm, located at 918 State Street. Cenler. 200 Clinton Avenue,West, Suite Harris & Brown announces that Eliz Bowling Green, Kentucky. The mailing 800. Huntsville, Alabama 35801. Phone abeth J. Hubertza nd Clyde 0. Westbrook, address is P.O. Box 1220, Bowling Green (205) 536-7423. 42102-1220.P hone (502) 842-1050. m have become associates. Offices are McDaoiel, Hall, Conerly & Lusk located at 2000-ASo uthBridge Parkway. McCleave, Roberts & Shields an announces that K. Donald Simms and Suite 520. Birmingham, Alabama 35209. nounces thal Joo A. Green has joined Kenneth A. Dowdyhave joined the firm. Phone (205) 879-1200. the fim1and the new name is McCleave, Officesare located at 1400Financial Cen Roberts , Shields & Green. Offices are Berry, Ables, Tatum, Baxter, Parker ter, 505 N. 20th Street, Birmingham, located at Suite 1104,AmSouth Center, Alabama.P hone (205) 251-8143. & Hall announces that James K. Brab RiverviewPlaza, Mobi le, Alabama36652. ston and Mark R. Hunter have joined Douglas J. Fees announces association Phone (334)432-1656. the firm as associates. Offices are located with the firm of Valerie L. Acoff, a for at 315 Franklin Street, S.E., Huntsville, Richard A. Thompson announces that mer law clerk for Justice CharlesA. Thig Alabama35801. Phone (205) 533-3740. Ted Strickland, formerly of U1eNational pen in the Alabama Court of Civil Appeals, Council on Compensation Insurance, has and Kimberlyn P. Malone. Offices are Webb & Eley announces Lhat Shawn Junkins has joined the firm. Officesare located at 166 Commerce Street, Suite 300, Montgomery.Alabama. Phone (334) 262-1850. ALABAMA Stone, .;ranade & Crosby announces that Russell J. Watson has become asso BUSINESS NETW ORK ciated with the firm. Officesa re located WHEN YOU NEED THE INFORMATION NOW in BayMinette . Daphne and Foley. Alaba ma. The mailing address is P.O. Drawer Imagine all 1hc political and legislative inronnation yoo need, in !he mostcurrent, 1509. Bay Minette, Alabama 36507.P hone cutting edge of 1c;;hnologyavailab le. The Alabama Business Network (ABN), a (334) 937-2417. co1nputeri1.cdgovcmmcn1al informalion system. the information you need. ,vhcn you need it. Pierce, Carr, Alford, Ledyard& Latta A BN features: announces that Annette M. Carwie, Frank Easy to use bill 1rncking features. including full bill lcxt L. Parker, Jr. and Robert E. Hurlbut, Comprehensive elecLion coverage. including can1paign Business Networ Jr. havej oined lhe fim1. Officesare locat funds and results has saved my staff ed at 1110 Montlimar Drive, Suite 900. A complete comn1itteeschedule.including bill numerous hour$ of numbers :ind shon titJes research on political Mobile, Alabama 36609. Phone (334) Access to every roll caH vote. Including commiuce 344-5151. lssues... lt pro vides vote-s information that is Kaufman & Rothfeder of Montgomery Daily newspaper orticles.from every paper in the not available on any announces that Carla Cole and David state. covering all statewide issues and political other system." A!hleyJones have joined the firm. rigures Various coun decisions. press relea~s. newsletters. Higgs & Emers on announces that go\'crnmcntaJ reports and many othe r documents John R. Campbell has joined the firm. The ability to download dire<:tly11110 you r word Offices are located at 405 Frank lin processor system to produce your own repons Street, Huntsville,A labama 35801-4257. Phone (205) 533-3251. For more information, call (334) 834-6000 Sherrill, Batts & Mathews announces that Anne Gresham Sargent has joined A stn'ict of rl11 Buslntts Ctnu,cil of Aloba111a 'THEALABAMA LAWYER JANUARY1996 / l 7 located at 401-403 Madison Street, P. Hooker has joined the firm. Offices way, Suite 600, Birmingham, Alabama Huntsville,A labama 35801. Phone (205) are located at 300 N. 21st Street, 600 35242. Phone (205) 980-5000. 536-1199. Title Building, Birmingham, Alabama Lehr , Middl ebrooks & Proctor Brian W. Mooreannounces the reloca 35203. Phone (205) 252-3300. announces that Robert L. Beeman, lJ tion of his office to Carmichael Center, Harris & Brown announces that Eliz has joined the firm. Officesa re located at 4001 Carmichael Road, Suite 115, Mont abeth J. Hubertzand ClydeO. Westbrook, 2021 Third Avenue, North, Suite 300. gomery, Alabama 36106, and that Scott Ill have become associates. Offices are Birmingham, Alabama 35203. Phone Roman has joined as of counsel. Phone located at 2000-ASo uthBridge Parkway, (205) 326-3002. (334) 277-8777. Suite 520. Birmingham. Alabama 35209. Rosemary Clark announces a change Gordon, Silberman, Wiggins & Childs Phone (205) 879-1200. of address to Union Planters National announces that Amy W. Sinnott , Kyle Johnston, Barton, Proctor & Powel.I Bank Corporate Trust Department , T. Smith, Laura M. Hitt, Paul O. Woodall, announces that J. Vincent Edge and C. 6200 Poplar Avenue, 3rd Floor, Mem and Ronald Downey, ll l have become AllisonPowell have j oined the firm. Offices phis, Ten nessee 38119. The mailing associated with the firm. Officesare locat are located at 2900 AmSouth/Harbert address is P.O. Box38 7, Memphis38147 . ed at 1400 SouthTrust Tower, Birming Plaza, Birmingham, Alabama 35203-2618, Phone(90 1)383-6980. ham, Alabama 35203-3204. Phone (205) and LandmarkCenter . 2100 First Avenue, Robert P. Reynolds announces that 328-0640. North, Suite 700, Birmingham 35203. Phone (205) 458-9400 and 324-4996. D. Mark Seib has joined the firm. Offices Miller, Hamilton, Snider & Odom are located at 303 Williams Avenue, Suite announces that Hugh C. Nickson,Ill has Dominick, Fletcher, Yeilding, Wood 117, Huntsville,Alabama 35801. The mail become an associate. Officesare located & Lloydanno unces that Peter McKeever ing address is P.O. Box 18605,Huntsvi lle at 254 State Street, Mobile,Al abama; Suite Wright has joined the firm. Offices are 35804. Offices are also located at 2209 802, Colonial Financial Center. One Com located al 2121 Highland Avenue, Birm 9th Street, Suite 204, Tuscaloosa,A laba merce Street, Montgomery, Alabama; and ingham, Alabama 35205. Phone (205) ma 35401. Phone (205) 534-6789, 1925 K Street, NW, Suite 200, Washing 939-0033. lluntsville . Phone (205) 391-0073, ton, D.C. Phone (334) 432-1414,M obile. Porterfield, Harper & Mills announces Tuscaloosa. Phone (334) 834-5550, Montgomery. that Eric D. Hoaglund and Michael R. Phone (202)429-9223, Was hington. McPhillips, Shlnbaum& Gillan nounces Lunsford have joined the firm. Offices that Allen R. Stoner has joined the firm, Taylor & Smith announces that Scott are localed at 22 Inverness Center Park- and the new name ls J\tcPhillips, Shin baum, Gill & Stoner. Officesare located at SJ 6 S. Perry Street, Montgomery, Look:i:ng For Alabama 36104. The firm also announces that George E. Jones, rn has joined the Some--thi:ng? firm and Gary Atchison has become of counsel.P hone (334) 262-1911. Hill, Hill, Carter, Franco, Cole & Black announces that Elizabeth K. Brannen, former law clerk to the Honorable Sonny Hornsby, and Jeffrey J. Bradwell have • Fraud joined the 11rm. Offices are located at 425 • Los r Profits S. Perry Street, Montgomery, Alaban1a. • Business Value The mailing address is P.O. Box 116, • Litigation Suppo rt Montgomery 36101-0116. Phone (334) 834-7600. • Financial Inves tigatio n Tanner & Guin announces that Keith A. Canterbury and Michael J. Velezis We can help! Call the have joined the firm. Officesare located forensic accountants at 2711 University Boulevard. Tuscaloosa, and fraud examiners. Alabama 35401. Phone (205) 349-4300. Gorham & Waldrep announces lhal Brian D. Turner, Jr. has becomean asso ciate. Offices are located at 2101 6th Avenue, North, Suite 700, Birmingham, 1530AmSouth/Harbert Plaza Alabama 35203. Phone (205) 254-3216. Birmingham, Alabama Wolfe, Jones & Boswell announces 205-716-7000 that Stan H. McDonaldand Shannon M. Smith have joined the firm. Officesare 18 / JANUARY1996 THE ALABAMALA WYER locatedal 905 Bob WallaceAvenue, Suite has offices in Birmingham and Huntsville. Wahsatch, Suite 305, Colorado Springs 100, Huntsville, Alabama 35801. Phone John sto n, Johns to n & Moor e 80903. Phone (719) 633-3852. (205)534 -2205. announces that Robert J. Landry, UI, Edward £, Blair and David B. Hand, Arendall , Bedsole, Greaves & formerly law clerk to United States Blanken ship announce the merger of Johnston and Tingle , Watson & Bates Bankruptcy Judge James S. Sledge, has their firms and that they will now oper announce that they will merge the two joined the firm. Offices are located at ate under the name of Blankenship & firms, and lhe name of the firm will be Regency Center, 400 Merid ian Street, Blair. Offices are local ed at 229 East Hand Arendall, L.L.C. In addition to lhe Suite 301, Huntsville, Alabama 35801. Side Square, Huntsville, Alabama 35801. Mobile and Bir mingham locations, the Phone (2051533-5770. Phone (205) 517-1550. firm will maintain offices in Montgomery Martinson & Beason announces the Hardin & Hawkins announces tha t and Washington, D.C. association of Elizabeth A. Beason . Bernard D. Nomberg and Jeffrey C. McLeave, Roberts, Shields & Green Offices are located at 115 Nor th Side Blackwell have jo ined the firm. Offices announces that Jon A. Green has joined Square, Huntsv i lle, Alabama . Phone are located at 2201 Arli ngton Avenue, the firm. The firm also announcesa relo (205) 533-1667. Birmingham. Alabama 35205. The mail catio n of its offices to Su ite I 104, J. Todd Caldwellannounces that Peggy ing address is P.O. Box 55705, Birming Riverview/ AmSouth Center. Mobi le, Pentecost Miller has joined the firm. ham 35255-5705. Phone (205) 930-6900. Alabama 36602. The mailing address is Officesare located at Suite 307.SouthTrust J, Edgar Akridge, Jr . announces that P.O. Box Mobi le Phone 2353. 36652. Bank Building . Anniston, Alabama36202 . Russell C. Balch has joined the firm, (334) 432-1656. Phone (205) 23i-6671. and the firm name is now Akridge & Lange, Simpson , Robinson & Katherine L. Reynolds, newly appoint Balch. Officesare located at 1702 cather SomerviUe announces that Laurence J. ed with the l'ederal Bureau of Investiga ine Court, Suite 1-D,P.O. Drawer 3738, McOuffand Ginger L. Pierce have joi ned tion, has relocated to Colorado Springs, Auburn. Alabama 36831. Phone (334) the firm. Phone (205) 250-5000. The firm Colorado. Her mailing address is 212 N. 887-0884. • Health Major Medical . Provides personalized comprehensive coverage to Lawyers, emp loyees , and eligible family members. The Southern Profession al Trust Is totally underw ritten by Continental Casualty Company , a CNA Insurance Company. Life Family Term Life. Provides benefits for Lawyers , spouses . children and employ ees. Coverage through Northwestern National Life Insuran ce Company . Security Disability Income. Features "Your Own Specialty" definit ion of disability with renewal guarant ee and benef its available up to 75% of your income for most insureds . Coverage through Commerc ial Life, a subsidiary of UNUM . Peace Of Mind Business Overhead Expense Insu rance. A financial aid to keep your office running if you become disabled . Coverage th rough Commercial Life, a subs idiary of UNUM . 33 Lenox Pointe NE Atlanta , GA 30324-3172 All from ISi 404-814-0232 If you're a Lawyer practicing in the State of Alabama . Insurance soo-241.ns3 Special ists, Inc. offers the finest insurance coverage anywhere . 19S9 FAX: We 're here to help with all your insurance needs. EST. 404-814-0782 INSURANCE SPECIALISTS, INC. THE ALABAMALA WYER JANUARY19961 19 BUILDINGALABAMA'S COURTHOUSES ELMORE COUNT Y COURTHOUSE By SAMUELA. RUMORE,JR. The new site is due north of Wetumpka The following continues a history of on Highway231 across the road from the Alabama's county courthouses-their Julia Tutwiler Prison for Women,one of originsand some of the peoplewho con a number of slate prison facilitieslocated ElMOfl€ COUflrn'COWiltSS~ tributed lo their growth. The Alabama in the county. (As a matter of fact. more _..... ••••J•,,, ....__ ...... --__.. Lawyer plans to run one county's story prisonsand detention facilitiesare local- -·--·- in each issue of the magazine. If you ,-~·""'-~""'·-·,----·---·· ., ..... ___'rt,, _ have any photographs of early or pre sent courthouses,please forwardthem lo: Samuel A. Rumore,Jr., Miglionico& Rumore, 1230 Brown Marx Tower, Birmingham,Alabama 35203. ELMORE COUNT Y REVISITED he Elmore Counlv Court house was featured in U1e I] May1995 issueof TheAlaba ma Lawyer. Since that date Elmore County has completed a new judicial complex, dedicatedon Septem The,1e.'W Elmore County Courlhou.se ber 17, 1995. The courthouse which this new com ed today in Elmore County than plex replaced is located in downto1vn in any other county in the state.) Wetumpkaand dates back to 1932.Over This large tract of land provides the years, the growth of the county and plenty of space for the judicial the increase in the number of judges in complex,which includesnot only the 19th Judicial Circuit created internal the new Elmore County judicial space limitations and crowding in the building but also a new jail and building. Further, parking around the expansiveparking lots for all the courthouse was always at a premium facilities. Countyollicials at dedicationcer0nonv September 17, 199.; whenevercourts were in session. The County Commission The CountyCommission sought to solve planned the building of the com- Montgomerybuilt the jail. while Central these problemsand to providefor future plex in two stages. using a one-cent sales Contracting,lnc. of Montgomery,owned growth and expansionby choosing a site tax to fund the project. The first struc by Earl Ryser, a resident of Elmore outside the downtownarea for the new ture built was the jail; the second stage County,built the judicial building. building. It also wiselyplanned to refur included all the judicial facilities. Mark The placementof the jail in close prox bish the old building for continued use Tiller and frank Rosaof Tiller-RosaAsso imity to the courthouse reflects a long by the county lo house several county ciates, P.C.. Architects of Montgomery standing tradition in Alabamacounties. offices,the CountyCommission, and the servedas architects for the total project. The Elmore County jail can accommo probate court. The HutchesonConstruction Company of date 192 inmates, male, female, and 20 I JANUARY1996 THEALABAMA LAV.rYER the holding cells for prisoners out side the viewof the public. Circuit Clerk Larry Dozier was one of the most pleased partici pants at the dedi cation ceremony. He had served on the Elmore Coun ty Commission Cin:uitClerk's Office Courtroomscene during the plan ning phases of the project. He de scribed the re search that went into the design of the facility,includ ing inspections of new courthouses in Montgomery and Opelika and interviews with personnel from the National Center (l;if/ to R(qhl)Murk Ti/Mr,l'ronk RO$u,urchilecls of the Judicial for State Courts. Complex Vier.vo/Tu/ttfi/er Prifori directly acrossfrom the coutthouse He also noted the contribution of the Alabama Ad juvenile, and has administrative and tion department, 911 emergency ministrative Officeof Courts, which was training officesas well as lock-up facili response, and the circuit clerk. ll also represented at the dedication by its ties. The building has approximately contains conference rooms and a law AdministrativeDirector of Courts, Oliv 50.000 square feet of space and cost library. It has approximately 48,000 er Gilmore. SS,094.194to build.The jail is connected square feet and cost $4,071.000 to build. ArchitectsMark Tiller and Prank Rosa, to the court buildingby an underground A large crowd gathered on Sunday, rightlyproud of their creation, described passageway that provides security for September 17, 1995 to dedicate the new the architectural features of the build the transporting of prisoners and pre facility. The dedication included a rib ing. It is a modified classic revival vents the public viewingof prisoners in bon-cutting ceremony and an open design.The front has six Doriccolumns handcuffs or other restraints prior to house. Severalcounty officials,as well as supportinga classic pediment.The e.xter trial. the architects. praisedthe new facility. nal building material is utility size grey In addition to four courtrooms. the District Attorney Janice Clardy com brownbr ick. The roof is aluminum with judicialbuilding has officesfor all of the mented that lhe facility would create a green baked finish. The building is judges, the district attorney. the proba- publicrespect for U1ejudicial system and completely handicappedaccessible . provide a better working environment Circuit Clerk Larry Dozier summed for her staffin the years to come. Circuit up the sentiments of those attending Samuel A. Judge John B. Bush, the resident circuit the dedication ceremony when he stat Rumore, Jr. judge for the 19thJud icial Circuit,which Sam\M!IA. A...-nore. Jt ed, "We are very proud or our new Is a graduatect the also includesChilton and Autaugacoun building. We have room for 20 to 30 tkllVers.iiyol Nocre ties, was quite happy that all of the years of expansion.It will serve the peo DameMdlhe judges can now work comfortably in ple of Elmore Countywell." ~iver'11Y ol Alabama Schoolol Law He their own officesand also conduct trials Elmore County citizens should be servedas founding at the same time in Wetumpka.He also commendedfor buildinga facilitywhich cha,rperson oC tl'le noted that each courtroom has witness AlabamaState Bar's will carry them into the 21st Century in FamityLaw Seeton and rooms, conferencerooms. a press obser style. They should also be commended is in practicem vation room, modem lighting.and excel for saving the old courthouse for its his 8in'l'llt'lghamwith lhe n,mof M,g'iC>ruCo& Aoo,ore lent acoustics.He observed that a final Rumore$etveS a., the bar c01YTil$$iooerfor Che 10th torical significance, its beauty and its Citcut J*ce numberrouc . beneficial feature of the new facility is functional use. • THEALABAMA LAWYER JANUARY1996 / 21 CumulativeIndex January 1995 - December 1995 Cham.hers, RhondaPit ts and Smith, Ables, L. Bruce"Una uthorized Practice DeborahAlley "The Nuts and Bolts of ESTATES of Law"56:288 "Pitfalls in Estate Planning with IRAs" Civil Appeals"56:304 Adams, Justice Oscar W.Jr. "Remarks· Wendell Cauley and Pamela L. Mable Coleman,William D. "The Mediation Opening of Court CeremonyJ 994-95 56:20 Alternative: Participating in a Problem Term" 56:32 Solving Process"56:100 ·'Superior Estate Planning Documents: Going LheExtra Mil e" Leonard Wertheimer, Ill 56:150 APPELLATEPRACTICE COURTS ''The Nuts and Bolts of CivilAppeals" ''The Third Citizens' Conferenceon Deborah AlleySmith & Rhonda Pitts AlabamaState Courts" AssociateJustice Goldstein, Judge Debra H. "Sex-Based Chambers 56:304 Hugh Maddox56:243 WageDiscrimination: Recovery Under the Equal PayAct, Title VUor Both" ARBITRATION 56:294 CRIJ\IINALLAW "Widespread Enforcementof Arbitra "Attention Trustees: Is Real Property in Haikala, MadelineH. "Fraudulent Sup tion AgreementsArrives i n Alabama" the Corpus Secure from Civilforfeiture pression's Duly to Disclose· Has Lhe Henry C. Strickland 56:238 Under 21 U.S.C.§SS I?" LoisS . Wood ExceptionSwallowed the Rule?"56:231 ward 56:83 Higgins, Steven Anthony and Holtsford, ATI'ORNEYS Alex L. Jr. "Liability of a Municipality "MontgomeryCounty Bar Association UnderAlabama Law" 56:35 DAMAGES EstablishesNew Volunteer Lawyers Pro "Post-Traumatic Stress Disordervs. Hogan, R. Ben ''Risk/UtilityOr Con gram" DonnaSims 56:236 rn. Pseudo Post-Traumatic Stress Disorder" sumer Expectation"56:166 "UnauthorizedPractice of Law"L. Karl l by John RichardCarrigan and John J. Coleman,JfJ ffirmativeaction has been controversial from its "Barrier Removal" AffirmativeAction. A second affirmative inception, and the recent decision of the U.S. action concept is the removal of barriers to participation in an Supreme Court in AdarandConstructors v. Fed opportunity. Such barriers can be physical (e.g., steps rather erico Pena, Secretary of Transportation,et al, than ramps leading to a facility) or conceptual (unnecessary __ U.S. __ (June 12, 1995), stimulated debate by sub· job qualification requirements). "Barrier removal'' affirmative jecting racial preferences under a federal subcontracting pro action is sometimes controversial,as when changes in eligibil gram to "strict scrutiny," which changed the standard by ity criteria are criticized as •·watering down" standards. The which some federal affirmativeaction programs will be evalu Adarand decision does not directly affect "barrier removal" ated. Five members of the Court overturned a U.S. Court of affirmativeaction. Appealsdecision that had permitted a race-basedpreference in ''GoaVQuota"Afflrmative Action. More pervasive.and more awarding a subconlract for federally-funded highway work. controversial, is federally encouraged affirmative action in The Supreme Court did not hold that the program in question employment.Many employersare obligated by federalcontracts was invalid; rather. the Court held that the Court of Appeals or subcontracts to develop Affirmative Action Plans, which had been too lenient in accepting the federal government's require statistical analysis of "underutili7.ation"of women and justification for race-based preferences. The Supreme Court minorities. and development of "goals" to address such under sent the case back to lower courts for consideration of the utilization. Although goals are said to be flexible.there is wide constitutionality of race-based preferences in subcontract spreadsuspicion that the goals are implementedas quotas, often awards.' by the use of preferencesbased on raceor gender. TheAdarand Widepublicity was given to the Adaranddecision as a signal decision did not, however,directly address employment issues, of the Court's likely treatment of affirmativeaction programs nor did it discuss prior Court decisions that appear to uphold affecting employment. The Impact or the ,ldarand decision affirmativeaction in employment to meet statistically defined should, however,be placed in context by distinguishing among goals. the various concepts that are referred to as "affirmativeaction," "Set-Aside" Affirmative Action. Many federal programs some of which are not likely to be affected. have encouraged the use of minority contractors or subcon "Wider Search" AffirmativeAction. ' One such concept is the tractors by requiring a target percentage of minority participa idea of expandingparticipation opportunities. This often entails tion, said to be "set aside'' for minorities. Such a federal improvedcommunication (such as a college recruiting al addi "sel-aside" program had been explicitly approved by the tional high schools, or an employer advertising job openings Supreme Court in an earlier decision, Fullilovev. 1(/ufznick, more widely,or improved advertising of a product or service). 448 U.S. 448 (1980) which had upheld inclusion of a 10 per This "wider search" affirmative action is seldom contro\lersial, cent set aside for minority-owned businesses in the Public and is not affectedby theAdaranddecision. Works EmploymentAct of 1977. 24 / JANUARY1996 THE ALABAMALAWYER THE ADARAND DECISION qualified work force for skilled jobs). Finally, establishing that a particular form of affirmative action is narrowly drawn lo Background protect a compelling governmental interest requires at least a AdarandConstructors, Inc. challengeda specificprogram that consideration of less discriminatory alternatives and a mecha provides financial incentives to general contractors on govern nism for determining whether a particular beneficiary was at ment projects so that they would hire subcontractors certified least likely to have been the victim of past discrimination.' as small businessescontrolled by "sociallyand economically From the foregoing, four principles emerged from Croson disadvantagedindividuals ." Federal law requires that similar for state and local action. First, (at least at the state and local subcontracting clauses must appear in most federal contracts, level) use of racial preferences must satisfy "strict scrutiny" and the clause typically provides thal "lt)he contractor shall under equal protection clause principles. necessitating a show· presume that sociallyand economicallydlsadvantaged individ ing that a plan is narrowly tailored to serve a compelling state uals include Black Americans, Hispanic Americans, Native interest. Second. strict scrutiny's "compelling slate interest" Americans, Asian Pacific Americans and other minorities, or requires a prima facie disparate impact showing (not merely a any individual found to be disadvantagedby the !Small Busi general sho,~ingof discrimination historicallyaga inst a protect· ness! Administration pursuant to section 8(a) of the Small ed group). Third, strict scrutiny's requirement that the policy Business Act." be "narrowly tailored" demands a demonstration thal less dis Adarand, the low bidder, lost to Conzales Construction Com criminatory alternatives were considered and found defective; pany (which had submitted a slightly higher bid) because the and that a particular beneficiarywas al least likelyto have been prime contractor would receivea bonus for using Conzales that a victim of past discrimination.. and that the amrmative action exceededthe differencei n the bids. Adarandchallenged the use would not unduly trammel rights of others. Finally, in Croson, of race (that is, the Hispanicancestry of the owner of Conzales affirmativeaction initiated by Congressappeared to receivemore Construction Company)as a basis for preference by the gov deferencethan the strict scrutiny standard then applied lo state ernment and its prime contractor. or local action. The Court's prior decisions in City of Richmondv. J.A. Cro Metro Broadcasting,Inc. v. FCC, 497 U.S. 547 (1990), held son Co., ("Croson'1488 U.S. 469, 102 l,.Ed.2d854 (1989), and that affirmative action (specifically preferences for minority MetroBroadcasting , Inc. u. FCC,497 U.S. 547 (1990). ("Metro ownership of broadcast facilities)' 'substantially related" to an Broadcasting")define the beginning point for the Court's con "important governmental objective"(rather than "narrowly tai sideration of "set-aside" affirmative action in Adarand. lored" to accomplisha ··compelling·•governmental interest) did Crosonstruck down a 30 percent minority subcontractor not violate the Equal Protection Clause when undertaken by set-aside provisionestablished by the City of Richmond,on the Congress. Further, PCCregu lations preferring minority broad basis that it violatedthe Fourteenth Amendment'sequal protec casters in "distresssales" and providingenhancement for minor tion clause. The Court interpreted the Fourteenth Amendment ity ownershipand participation in managementwere considered as requiring "strict scrutiny" of the city's use of race-based substantially related to the important governmental interest of classifications to award city contracts, and rejected the argu maintaining diversity in broadcasting because both Congress ment that a remedial purpose excusedthe use of race, noting al and a federal agency had meticulously considered and rejected 102 L.Ed.2d 885, "an amorphous claim that there has been less discriminatory alternatives. Just.ice O'Connor observed past discrimination in a particular industry cannot justify the that the "Constitution's guarantee of equal protection binds use of an unyielding racial quota." Reliance on the disparity the Federal government as it does the states" without imposing between the number of prime contracts awarded minority a lower level of scrutiny. Nonetheless,lhe practice of affording firms and the city's minority population did not satisfy the greater leewayto Congress than to state and local governments requirement of a compelling remedial purpose; the nature of had support from a majority of the Court in Fulliloveand in subcontract work is sufficientlyspecialized that the city needed dicta in Croson. to show comparisons between the percentage of minority con tractors and the total contracts put out for bid rather than mere population statistics. Id. al 887. Furthermore. the Court THE L EGAL ISSUE. IN ADARAND found that the means chosen (a 30 percent set-aside) was not The primary legal issue faced in Adarandwas whether a racial narrowly drawn because it did not consider less discriminatory preferencefor Conzaleswas a violation o/ the Constitution. Five alternatives. Id. at 890-91. members of the Court agreed lhal the case should be sent back While the opinions are difficull to follow, the Court's opinion to the Courl of Appealsto determine whether the racial prefer (set forth in I, me,and IV of Justice O'Connor'sopinion). solid ence was const itutional under the same "strict scrutiny" ifies a majority of the Court behind four propositions. First, race required for evaluationof race-based' programs by state or local always is a suspect class. Second, a public entity ma)•not show governments. Four members of the U.S. Supreme Court dis a compelling state interest of remed1•ingpast discrimination agreed, and would have acceptedthe decision of the lower court basedon ly on evidencethat blacksare historically disadvantaged that the preference given in this case was appropriate. or of societal discrimination. Justice O'Connor explained"strict scrutiny" as follows: Third, a public entity may only show a compellingslate inter When race·based action is necessary lo further a com est in remedyingpast discrimination by offering statistics mak pelling interest, such action is within constitutional con ing out a prima facie Title VII disparate impact violation straints if it satisfies the "narrow tailoring" test this Court (including a comparison of the work force with blacks in Lhe has set out in previous cases. THE ALABAMAl,A WYER JANUARY1996 / 25 Based on Justice O'Connor"sstatement, it appears that the The Adarand decision did not directly deal with affirmative federal highway subcontracting program involved in the action obligationsin employmentimposed by ExecutiveOrder Adarandcase may be permissibleif the lo,~ercourts find that 11246.However. the use of a "strict scrutiny" standard to eval the racial preference is necessary to fur/her a compelling uate racialpreferences imposed by lhe federalgovernment rais. interest and thal the preference is narrowlytailored lo avoid es substantial questionsas lo ExecutiveOrder 11246. unnecessaryinterference with the rights of others. Affirmativeaction plansrequired under ExecutiveOrder 11246 Whetheror not the specificsubcontracting program involved allowmore nexibilitythan the financialincentives based on race in the Adarand case is upheld. the decision of the Supreme in the Adarandcase. AffirmativeAction Plans theoreticallyuse Court is important because it indicates that all government "flexiblegoals" rather than "inflexiblequotas· and would pre action basedon racial classificationswill be subject to "strict sumablybe more likelyto survive"strict scrutiny"as to whether scrutiny• and that federalprograms approved under at leasl two they are "narrowlytailored" to serve a "compellinginterest." p1iorSupreme Court decisionslikely would not be approvedat The reality of many affirmativeaction plans, however,is that present. Metro Broadcastingdealt with race-basedpolicies of statistical techniques are used to identify"underuti lization"of the Federal Communications Commission, and a majority of employeesin particularjob groups by race or gender. Contrac the Court had upheld so-called"ben ign" federal racial classifi tors who do not take effectiveaction to address "underutiliza cations, provided they satisfied only a "intermediate" level of tion" face possible complianceactions by the Officeof federal scrutiny rather than the "strict scrutiny" then required under Contract CompliancePrograms w ithin the U.S. Departmentof Croson for race-based preferencesby state and local govern Labor.including the ultimate sanction of disqualificationfrom ments. Metro Broadcastinghas been effectivelyre,•ersed by federal contracts. Many employers routinely take race into Adarand. considerdtion in hiring and promotion decisions in order to The earlier Fullilovev. Klutznick decision• had upheld the satisfyaffirmative action plan obligations. action of Congress in including a 10 percent set aside for The U.S.Supreme Court has, in previousdecisions, implicit - minority-ownedbusinesses in the Public Works Employment 1)'approved racial preferences in affirmativeaction plans. See Act of 1977,based on relaxedscrutiny of the racialprefere nce. A UnitedSteelworkers of America v. Weber,443 U.S. J 93, 209 divided court permitted the racial preference in Fullilove (1979) and Johnson v. TransportationAgency, San/a Clara because it was considered lo satisfy "intermediate scrutiny; Counly, California, 480 U.S. 616 (1987). In each of those and such inlermediatescrutiny was held lo permit Congresslo cases, an affirmativeaction plan describedas "voluntary"was use race in a remedial fashion. The deference to the "benign" recognized as justification under Tille Vll of the Civil Rights use of racial preferencesby Congressi n Fullilovewas not sub Actof 1964for an explicit racial preference(in Weber)or pref sequentlyextended to similar use or racial preferencesfor con erence for female candidate over a male candidate (in tracting by suite or local governments.In light or theAdarand Johnson).' decision,il is not likelythat a similar federalset-aside program Describing such affirmative action plans as "voluntary" is would be upheld today. somewhatmis leading, becauseemployers who do businesswith the government (as in Weber)or receive federal funds (as in IMPLICATIONS FOR OTHER Johnson) must adopt affirmativeaction plans if they wish to SUBCONTRACT/NG PROGRAMS receivemoney from the federalgovernment. The recent highly In the short run, the Adaranddecision does not necessarily publicized decision of the University of California Board of invalidateany current subcontractingprogram. Dependingon the decision or lower courts, lhe specificfederal highwaycon struction program that affectedAdarand Constructors, lnc. is John Richard Ca rrigan likelyto be modifiedto eliminatean explicitpresumption that JOl'lnR,Chrud Cru11gan isa g1aduatcot HatvardLaw minority-ownedsmall businessesare controlledby "sociallyand SalOOIand IS a partnEtf111 Ule Slmw,gham olf1oe of economicallyd i.sadvantagedindividua ls." TheAdarand decision Balct\& S.,gham. implies thal set asidesor financial incentivesfor use of business es controlled by "socially and economicallydisadvantaged indi viduals" could be constitutional if the group of "socially and economically disadvantaged individuals" is defined without referenceLo race. THE EFFECT ON OTHER AFFIRMATIVE ACTION PROGRAMS John J. C·ole man , tll Federalaffirmative action initiativesare not confined to sub JohnJ Coleman.Ill i's.a graduatoot DukeUl'lrvetS- ty Schoo'ot Lewand 1$ elso a patine, m the B!rm contracting programs. Most entities that do business with the itlghamotl..:o 01 Balch & e;ngnam federal government (includingalmost all large employers)are required to develop AffirmativeAction Plans affectingemp loy ment practices under ExecutiveOrder 11246. ExecutiveOrder 11246 establishes equal employmentopportunity obligations and affirmativeaction obligations affectingemployment prac tices of mosl government contractors and sub-contractors.• 26 I JANUARY1996 THE ALABAMALAWYER Regents to discontinue preferences based on race or gender in strong in light of Fullilove (which accepted Congressional admissions and employment provoked an immediate response authority in section 5 o( the Fourteenth Amendment as justifi from U1eU.S. Department of Justice threatening sanctions if cation for intermediate scrutiny of a set-aside created by Con the Universityof California system does not honor the affirma gress); but it is hard to understand how that argument tive action commitments made in order to receive 2.5 billion survived the .4darand rejection of intermediate scrutiny in dollars annually in federal funds. favor of strict scrutiny of the federal set-aside. The strict scrutiny requirement entails evaluation of both AOARANO IN WONDERLAND - Lheend and the means for the use of race. The end must be a THE WASHINGTON SPINMA5TER5 AT WORK "compelling interest"; and the means must be "narrowly tai There is sharp difference of opinion in Washingtonas to lhe lored" to achieve that end. Although the DOJ Memo purports effect of Adarand.The Clinton Administration has simultane to see greater deference to Congressional action (as four dis ously embraced and discounted Adara11din a sweeping direc senters would give, and the Court had given in Fullilove),it is tive• to federalagencies to reviewaffirmative action: not clear how this can be implemented. Neither Justice O'Con 11Jn all programs you administer that use race, ethnicity nor nor others in the Adarandmajority offer any insight how or gender as a consideration to expand opportunity or an interest that would be le.ss-than-compelling to justify state provide benefits lo members of groups that have suffered or local action is acceptable when presented by Congress; nor discrimination, I ask you to take steps to ensure adher is there a clear way to excuse less-narrow tailoring of a pro ence to the followingp01icy pr inciples. The policy princi gram at the hands of Congress than would be constitutionally ples are Iha/ any programmust be eliminatedor reformed permitted from a state or local government. iii/: The DOJ Memo also rather boldly suggests that the Court will allow the government to rely on ''post-enactment" evi (a) creates a quota; dence-i.e., a~er-acquired evidence-to justify a previously (b) creates preferencesfor unqualified individuals; enacted preference. That suggestion is difficult to reconcile (c) creates reverse discrimination; or with Mcl(ennon u. Nashville Banner Pub. Co., 115 S.Ct. 879 (d) continues even after ils equal opportun ity (1995), in which the Court foreclosedemployers from relying purposes have been achieved. In addition. the Supreme Court's recent decision in AdarandConstrue/ors u. Pena requires strict scrutiny of the justiricalions for, and provisions of, a broad range of existing race-based affirmative action programs . You WE SAVE YOUR recently received a detailed legal analysis of Adarand TIME ... from the Department of Justice. Consistent with that guidance, 1 am today instructing each of you to under Now legal research assistance take, in consultation with and pursuant to the overall 1s :i vailable when you need it. direction of the Attorney General, an evaluation of pro L E G A L without the necessity of grams you administer that use race or ethnicity in deci adding a full-time nssoc,a te or sion making. With regard to programs that affect more Resea rch Lhan one agency, the Attorney General shall determine, clerk. after consultations, which a_gencysha ll take the lead in performing this analysis. With access to the State Law Library and West law. we Using all of the tools at your disposal, you should provide fas1 and efficieni service. For deadline work. we develop any information that is necessary to evaluate can deliver informationto you via commoncarrier. whether your progran1sare narrowly tailored to serve a Federal Expre THE ALABAMALAWYER JANUARY1996 / 27 on after-acquiredevidence to avoid liability for unlawful dis Section3 provides: crimination. Although the Mcf(ennon context differs because Nothing in this Act shall be construed to prohibit or Title VII claims often deal with actions lhat may be lawfulor limit any effort by the Federal Governmentor any officer, unlawfuldepending upon the employer'smotive at the time of employee, or department or agency of the Federal Gov decision,lhe Supreme Court may be reluctant to accept after ernment- acquired evidence to satisfya "strict scrutiny" evaluationof a racial preference even though motive is not the primary (1) to recruit qualified women or qualified minorities issue.10 That is, if the necessaryevidence of compelling inter into an applicant pool for Federal employment or to est did not exist at the time action was taken, it is reasonable encourage businesses owned by women or by minorities to question whether the decisionmakers had a different and to bid for l'ederal contracts or subcontracts. if such less defensibleend in mind. recruitment or encouragement does not involveusing a The intensive review directed by the \Vhite House has not numerical objective, or othenvise granting a preference. yet identified any federalaffirmative act ion programthat requires based in whole or in part on race. color, national origin. modification or elimination in accordance with either the or sex, in selecting any individual or group for the rele vant employment,contract or subcontract, benefit,oppor President's"policy principles " or theAdarand decision. At the other end of PennsylvaniaAvenue, Republicans in Con tunity, or program; or (2) to require or encourage an1• gress promptly proposed legislation to codify Adarand and Federal contractor or subcontractor to recruit qualified eliminate many forms of affirmativeaction. Section 2 of the women or qualified minorities into an applicant pool for "Dole/Canady"Bill provides as follows: employment or to encourage businessesowned by women Notwithstanding any other provisionof lhe law, neither or by minorities to bid for Federal contracts or subcon the Federal Government nor any officer, employee. or tracts, if such requirement or encouragement does not department or agency of the FederalGovernment (1) may involveusing a numerical objective,or otherwisegranting intentionallydiscriminate against, or may grant a prefer a preference, based in whole or in part on race, color. national original, or sex, in selecting any individual or ence to. any individualor group basedin whole or in party on race, color, national origin, or sex. in connection group for the relevant employment, contract or subcon with- tract, benefit, opportunity,or program. (A)a Federalcontract or subcontract; 104th Cong. 1st Sess. S.1985HR2128 § 3. (BJFedera l employment;or The Republicanresponse accepts "wider search" affirmative (C) any other federallycond ucted programor activity: action, and seems to permit "barrier removal" affirmative (2) may require or encourage any Federalcontractor or action, but goes beyondAdarand in forbiddingthe use of race subcontractor to intentionally discriminate against, or evenwhere a compelling interest could be served by narrowly grant a preference to. any individual or group based in tailoredmeans - that is, where use of a racial preferencewould whole or in part on race, color, national origin, or sex: or survive strict scrutiny. One of the many intriguing questions (3) may enter into a consent decree that requires, autho presented by Adarand is whether the Clinton Administration's rizes, or permits any activity prohibited by para.graph (1) fondnessfor judicial deference to Congressionalaction under or (2). section 5 of the Fourteenth Amendmentwill extend to action such as the "Dole/Canady"Bill, which could be characterized 104th Cong. 1st Sess. S.1985HR2128 § 2. as implementingthe equal protection clause. Sojtwllrejur ALll'1llmllAttorne11s Software.forIBM compatible comp1,1,ters. s SOFl'WARBSOLUIONS MADE SIMPLB Simple Logic, Irie. P. 0. Box 110, Allgood, AL35013, Ph. 205/625-4777 Fro<.205/274-0178 28 / JANUARY1996 THE ALABAMALAWYER THE EFFECT OF OTHER LAWS and the questions tai&ed by effirmatNe acdon as to gender are n01am.·A'E!red The Adarand case interpreted the U.S. Conslitution parlicu· by Ma/81>d 2. lhe lerm6 ~der search .· ·barraar removal: ·goal/quota · and ·set.aside· 10 larly limits on race-based action by the federal government. It cflstlngulshtypeS of affirmat1veecoon a,e not used by the Court nor ore they does not have any direct impact on non-governmental entities. ,n common use They tue uSGd hore s.nply to illustrated1tle1&m a1flrmat1ve However, race-based action by employers is regulated by sev actlDl'tconcepts eral statu tes, the most important of which is 42 U.S.C. § 1981. 3 Id at 888-91 Justices Scalia and cnie1 Justice RehnquiSIcontinue to aroue for Web$''s tevm581 There is rea'SOl1to beheve !hat Weber as a Jud>C:1aldOC · Section 1981 forbids racial discrimination in the making and ume soon may be gone . Congross. under Chief Jus1,ceSurg&f's plurality enforcement of contracts. Under § 1981,it is (and has been) opinion in Fvlliiove, certainly coufd h:eveenacted a narrowly-dtawn sta1uiepr(). unlawful to refuse to deal with someone because of race. The v.ldlngror affirmahve ac11on evon to othl' than vk:tims ol actual CtSCnminatlOll and even in lhe absence ol priot judicial Ondingso1 discrimln.al.ion Howeve1. extent to which race-conscious subcontracting policies are 11tS bOCOmingless likely lheJa court wl!t be able to do ao fo, much longer permissible under § 1981 was unclear before the Adarand 4 Rac&--based dlshnCtlOn$outside the atllrmawe ac!JOnoontax1 In tha pas1have decision, and remains unclear. received strict sc:Mtny. see Koromars.Jv UnJtedSlates . 323 US . 21.c(1944), In parti cular, it has widely been assumed that good faith but sex-based dis.110ctlonsgenera1ty have rec-t!NedIn all conJexts 111&kind ol Intermediate scrutiny . see Personnel Adminlsuaror of Mossachuseus v compliance with a federal subcontracting commitment would Feeney,442 U.S. 256 ( 1979), 1hat rac.-based d1St1nct1onshavo ,e,c~vod ooty be a defense to a § 1981 claim brought by an unsuccessful In th& atflffT'latlveacuon context. See Mer108roadcas11ng , Inc. v. FCC. 497 non-minority subcontractor. u.s 547 (1990) Many companies that do business with the federal govern 5 448 U.S. 448 (19&1) 6 Compan,ostnal nave dli'ect con.t1actswith the tedocel governmentassume ment have been obligated as a condition of their federal con obligations under E.xeoutfVeOrder 11246 as govemment contractors; Olt11!tf tracts to take affirmative action to award subcontracts to small compan.os may bO considered sub-conlf8ctors under such governmen1con-, businesses controlled by "socially and economically disadvan !rad$ taged individuals." There does not appear to be any decision 7 SeveralSup,eme Coun Justicesappear 10ppply !he same S1oodardsin Title vu alhtma1tveaction cases M ate applied in oqual procectlonclause aflll'ITl8• holding preferences for small businesses controlled by "social tlve action cases See. o.g Johnson v TritnspottatiotlA~y. Sr8ntaClara ly and economica lly disadvantaged individuals" to violate § Coon,),. 480 US 616. 649. 650-51 (1987) co·conno,. concu,~ng),664 (Scalia. 1981.H owever, the same reasoning process used by the Court J . Rehnquist CJ ., dlssenung), 669-70 (IM,lte. J ., aissen11ng). but se<1 Id. a1 627 n.6 (r&joetionoJ auch parity) majority in Adarand to question the federal government's 8. The White House directive. IssuedIn July 1995. is avaiCableon the World Vllde authority to give subcontracling preferences based on racial Web ill hnpJ/vowNwhlte!lO.JSO g,,,- HoU"8/EOP/OPl1\tmVaa/U01html classifications may present a prob lem for private action to 9 The emphasis has been sup;plied confer similar preferences. 10. The OOJ Memo polnl:s out that several kJwer cou":s h&d. before Adarand, accepted posi-onactmentev'ldonce 10 suppon racial p,e1etoncesb)' a.ale or CONCLUSION locol govem"""'" Although theAdarand decision has no immediate impact on any affirmative action program, the Court's reasoning sug gests that explicit racial preferences in subcontracting pro grams may be held unlawful. for that reason, it would be safer to examine questions of "social and economic disadvantage" FHL Capital on a case-by-case basis, rather than assuming that all minori An i11ves1111en1bankfog firm specializing in mergers, ties are, and that non-minorities are not. racially and econom acquisiNons, business valuatlous. Jain1ess opinions ically disadvantaged. Subcontracting plans should be reviewed and financial advis ory services. to determ ine the extent to which the reasoning of the Adarand decision callssuch plans into question. lnv est11rentBa11ki11g Affirmative action in non-governmental employment is not FHL Capilal has represeo1ed banks and priva1cly so directly affected by Adarand, but the standard of stri ct held businesses since 1984. Mos1 transactions scrutiny to be applied to governmental use of racial prefer· involve the sale of a company, utilizing our ences has broad implications for the ''voluntary " affirmative e,,-perience and technical skills 10 maximize their action plans required of employers that do business with the sales price. federalgovernment. ·'Coal/Quota" affirmative action is largely driven by U1e financial leverage brought to the contracting process by the federal government, and it is likely that there Business Valuation will be vigorous cha llenges to the authority of federal con Each engagement demands much more than a tract ing agencies to compe l the setting of racial goals in ll1eore1ical undcrs1anding of valuation concepls. emp loyment. The Clinton Administrat ion intends to insist Having prepared hundreds of business valuations. upon comp liance with the undertakings of such plans, so the professionals a1 FHL Capical also undersiand the action inconsistent with an existing Affirmative Action Plan is need for proper documcn1ation and supportable likely to be challenged unti l there is an authorita tive resolu conclusions. tion of the lawfulness of such Affirmative Action Plans by the Supreme Court. • For additional information contacc: David P. Arias Telephone: (205) 328-3098 Fax: 323-000 l ENDNOTES l The Adarand roasonlng applies &xphcltlyto reclaJp,ofe,ence. not to genc:Jer Email: [email protected] THE ALABAMALAWYER JANUARY1996 / 29 OPINIONSOF THE GENERALCOUNSEL By J. Anthony McLain,general counsel UESTION: sentation involvedmatters which were completelyunrelated to "A member of this firm has been asked to serve those matters in which your partner presidedas a hearing offi as a hearing orficerfor twostate agencies:the State cer for that state agency. Agencyand the AlabamaDepartment of M. Both However,most jurisdictions which have addressed the sec mmembers of the firm also represent clients before ond portion of your inquiry, i.e., whether your partner can like· these two agencies. We recognize that we would be unable to wise represent clients before the agencies for which he serves representa client beforethe agency,and then hear a case involv as a hearing officer. hold that such is prohibited by the former ing that same client. We are seeking your opinion, however, as DisciplinaryRules. and carried forwardunder the Rulesof Pro to whetherwe can continue to representclients beforethe agen fessionalconduct as adopted by the Supreme Court of Alabama cies generally and recuse ourselveson any cases which involve in January of 1991. our clients and/or issues which are the same as issues being In Opinion 1990-4of the Committee on ProfessionalEthics addressedin cases involvingour clients. of the Associationof the Bar of the City of NewYork, cons ider "Somebackground on each agencymay be important to your ation was had or the situation wherein a lawyer serves as an opinion. In the case of the State and Agency,the firm member administrative law judge or a mediator for an assistance pro would be sitting as a 'fair hearings' officer.This person decides gram sponsored by the NewYork City Commissionon Human appeals from decisions made by the Certificateor Need Board. Rights. It was held that such a lawyer or members of his firm The fair hearing officercan overridedecisions of the Board. could not represent claimants before that Commissionwhen "ln the case of the AlabamaDepartment of M. the hearingoffi the lawyer served frequently and repeatedly as a part-time cer is appointedby the M Commissionwhich overseesthe oper administrative law judge; on the other hand. the lawyer and ation or the Alabama Department of M. When decisions by the members of his firm would be allowed to represent claimants Departmentare appealed,they are appealedinitially to the Com before the Commissionif the lawyer served only occasionally mission.The Commission appoints a hearingofficer to hear cases and sporadically as a judgepro tempore. for them. The hearing officermakes a recommendeddecision In Opinion 1985-7 of the State Bar of New MexicoAdv isory to the Commission for its consideration. The Commission Opinions Committee, it was held that a lawyer who practices makes the final determination in these cases. beforea state taxation and revenue department may not accept "Pleaseadvise if this firm can continue to represent clients a contract with that agency to serve as a part-time hearing offi beforethe State and Agencyand/or the AlabamaDepartment or cer. The Committee reasoned that a part-time judge could not M and serve as hearing officer for U1erespective Board and appear before his own tribunal as a lawyer, since a hearing offi. Commission." cer fills a judicial role in a quasi-judicialforum. Such circum stances give rise to an appearance of impropriety, even if NSWER: procedures are established to eliminate conmcts of interest. Youma)' represent clients before a state agency The Committee based its decision on Disciplinary Rule 9- even though your partner servesas a hearing offi JOJ(C),which prohibits a lawyerfrom stating or implyingthat cer for said agency,provided that your representa he is able to influenceim properly or on irrelevantgrounds any mtion involves matters completely unrelated to tribunal. legislative body. or public official. The Committee those in which partner presidedas a hearing officer. However. reasoned that in a situation where an individual represented your partner, who also servesas a hearing officerfor a particu clients beforea state agency, that individualalso occupyingthe lar state agency,cannot representclients beforethe agency. position of a part-time hearing officer created implicationsof improper influence so inescapablethat such part-time judges ISCUSSION: would be precludedfrom appearing before their forums. In R0-91-18, the Disciplinary Commission Rule8.4(e), A labama Rulesof ProfessionalConduct, states as addressed the inquiry of whether the Alabama follows: Rules of Professional Conduct prevented a lawyer "Rule8 .4 Misconduct mfrom representing clients before a state board, It is professionalmisconduct for a lawyerto: when that lawyer'spartner also served as a hearing officer for matters within the jurisdiction of that same state agency.The ••• Commission determined that the lawyer could represent (e) State or imply an ability to influence improperlya gov clients before the state agency in question. provided that the ernment agencyor oificial." representationinvolved matters completely unrelated to those The Commissionis of the opinion that this rule would pro in which the lawyer's partner presided as a hearing officer. hibit an attorney who serves as a hearing officer for a state Therefore, you could continue lo represent clients before the agency to likewise represent clients before that same state state agencies listed in your inquiry, providedthat your repre- agency. The possible perception of favoritism or influence 30 I JANUARY1996 THE ALABAMALAWYER should be avoided in order to preserve lhe propriety of the ing officerhas now changed roles and is appearing as an advo administrat ive agency process. This would best be accom cate for a client beforetha t same state agency. plished by precluding lawyers who serve as hearing officersfor The Commission feels that the purpose of the rules, as well a particular stale agency from also representing clients before as the integrity of the profession,w ould be best served by pro the same state agency. The relationships developed by the hibiting lawyers from representing clients before stale agen hearing officer in dealing with the personnel of the state cies while concurrent ly serving as a hearing officer for that agency could appear to continue into a setting where the hear- same state agency. • Notice of Election Notice is given herewith pursuant to the Alabama State Bar Rules Governing Election of President Elect and Commissioner. President-Elect The Alabama State Bar will elect a president in 1996 to assume the presidency of the bar in July 1997. Any candidate must be a member in good standing on March 1, 1996. Petitions nominating a candidate must bear the signature of 25 members in good standing of the Alabama State Bar and be received by the secretary of the state bar on or before March 1, 1996. Any candidate for this office must also submit with the nominating petition a black and white photograph and biographica l data to be published in the May Alabama Lawyer. Ballots will be mailed between May 15 and June 1 and must be received at state bar headquarters by 5 p.m. on July 23, 1996. Commissioners Bar commissioners will be elected by those lawyers with their principal offices in the following cir cuits: 8th; 10th, places no. 4, 7 and Bessemer Cut-off ; 11th; 13th, place no. 1; 17th; 18th; 19th; 21st; 22nd; 23rd, place no. 1; 30th; 31st; 33rd; 34th; 35th; 36th; and 40th. Additional commissioners will be elected in these circuits for each 300 members of the state bar with principal offices therein . The new commissioners positions will be determined by a census on March 1, 1996 and vacancies certified by the secretary on March 15, 1996. The terms of any incumbent commissioners are retained. All subsequent terms will be for three years. Nominations may be made by petition bearing the signatures of five members in good standing with principal offices In the circuit in which the election will be held or by the candidate's written declara tion of candidacy. Either must be received by the secretary no later than 5 p.m. on the last Friday in April (April 26, 1996). Ballots will be prepared and mailed to members between May 15 and June 1, 1996. Ballots must be voted and returned by 5 p.m. on the second Tuesday in June (June 11, 1996) to state bar head quarters. THE ALABAMALAWYE R JANUARY 1996 I 31 I OPPORTUNITIES The foflowing in-state programs have been approved for credit by the Alabama Mandatory CLE Commission. However, infomwtion is available free of charge on ouer 4,500 approved programs nationwide identified by loca tion date or specialty area. Contact the MCLE Commission office at (334) 269-1515, or 1-800-354-6154, and a complete CLE calendar will be mailed to you. 19 Friday Credits: 6.0 JANUARY LIMITEDLIABILITY COMPANIES: (800) 627-6514 11 Thursday ENTITYOF CHOICE ALABAMALABOR AND Montgomery, Holiday Inn East 23 Friday EJIIPLOYJIIENTLAW National Business Institute, Inc. APPELLATEPRACT ICE Birmingham Credits: 6.0 Cost: $149 Birmingham, Medical Forum Building (715) 835-8525 National Business Institute. Inc. Alabama Bar Institute for CLE Credits: 6.0 SOCIALS ECURITYLAWS Credits: 6.0 (715) 835-8525 Birmingham (800) 627-6514 Cumberland Institute for CLE Credits: 6.0 18 Thursday WORKERS'COMPENSATION IN (800) 888·7454 LIMITED LIABILITYCOMPANIE S: ALABAMA ENTITYOF CHOICE 25•27 Birmingham Mobile, Admiral Semmes Hotel MIDWINTER CONFERENCE Lorman BusinessCenter, Inc. National Business Institute. Inc. 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Credits: 6.0 Credits: 6.7 Cost: $159 (800) 627-6514 (715) 835-2111 15 Friday ~ 16 Friday (All HOWron A [R[[ O[HOHSTRATIOH1110£0 EMPLOYMENTLAW FAfDLYLAW Birmingham, Civic Center 1. 800.827. 1457 Birmingham, Edna Merle Carraway Alabama Bar Institute for CLE JS ll[IIHIIIUGIIS Ill[ Convention Center Credits: 6.0 5001 W BROROSIRIII Rl[IIMIJIIOun /l/10 Alabama Bar Institute for CLE (800) 627-6514 32 / JANUARY1996 THE ALABAMALAWYE R ALABAMA ANNUAL MEETING July 24-27, 1996 Perdido BeachResort Orange Beach,Alabama r Youwon~t want to miss... A New Vision of Law Practice - Do you want to practice law ... and still have time for other interests. too? Most busy practitioners do! 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Hornsby and Ann P. 1fondeuelde1 n June 8. 1995. lhe I-louseand Senate o( the Alabama or principalcampaign committee may acceptor solicitcan1paign Legislaturepassed an acl amending Title 36, Chapter contributions.Accepting or solicitingcontributions is restricted 0 25, "Code of Ethics for Public Officials. Employees, to l2 monthsbefore an electionand 120days after the election.Id. Etc." ("Ethics Act"). Ala. Code §§ 36-25-1,et seq. (1991). On at§ 36-25-6:see id. at § 36-25-1(30) (defining candidate). June 19. 1995, Governor Fob James, Jr. signed the amended The amended Ethics Actchanges who must file Statements or Ethics Act, AlabamaAct 95-194, H. 135, 1995 RegularSession EconomicInterests. raising the minimum salary from $25,000 (1995) (effectiveOctober I, 1995). The amended Ethics Act, to $50.000for publicemployees . and perhaps for appointedpub which actually replaces the former Ethics Act, is the former lic officials, yet adding a laundry list of specific public officials Ethics Act with many amendments.The effect of these amend and public employeeswho must file regardlessof salary. Id. at ments will likelybe far reaching and have a significantimpact § 36-25-14(a);see id. at§§ 36-25-1(24) (definingpublic employ on public employees,public officials,candidates and lobbyists. ee) & 36-25-1(25)(defining public official).A special exception for coaches of athletic teams al four-year institutions of higher Introduction to the AmendedEthics Act learning allows such coaches nol lo disclose any contractual With the amendedEthics Act , the AlabamaLegislature sought incomeother than salary in their Statements of EconomicInter to clarifyand make changes to the existing statute. in addition ests. Id. at§ 36-25-14(b). to adding new provisions.These additions and changes are too Whether appointed public orriciaIs who are paid Jess than numerous to identifyall of them here. For example,the amended $50,000 per year are exempt from filingStatements of Econom EthicsAct expandsthe definitionssection from 12 lo 33 defined ic Interest is unclear. The wording in section 36-25-14(a){2)is terms and substantivelyamends eight of the 12 former defini ambiguous.Section 36-25-14(b)again makes clear that this fil tions. Ala.Code§ 36-25-1(effective Oct.1.1995). ing exemptionapplies to certain public employees.but does not One amendment to a definitionwill havea substantial impact mention publicofficials paid less that $50.000per year, implying on many lawyers.Under amended sections 36-24-1 (17) and (18). that such public officialsshould file Statements or Economic any person attempting to influence legislationor regulations, Interest. Yet.this interpretation of section 36-25-14(a)(2)seems other than by testimony, is lobbyingand needs to register as a to make sections 36-25-14(a)(4),36-25 -14(a)(l0). and 36-25- lobbyist.A lawyerdrafting bills or advisingclients about proposed 14(a)(l7) redundant. In addition, this interpretationwould over legislationor regulations is expresslynot a lobbyist.There is no load the Ethics Commission with Statements of Economic other exemption for lawyers.Therefore. lawyers representing Interest filedby the many Alabamianswho volunteer their time clients beforeany state or local legislativeor regulatorybody will on local boards, as well as perhaps discourage such volunteers need to carefullyconsider whether they are attempting to inOu from donatingtheir time. For these reason,it seemsthat appoint ence legislationor regulationsand thus are lobbyists. ed public officialswho are paid less that $50,000were intended One principalobjective of the amended EthicsAct is to clarify to be exempt from filing Statements of EconomicInterest. the eligibilityof State of AlabamaEthics Commissionmembers. The amended Ethics Act prohibits public officialsand public See id. § 36-25-3(creation and compositionof the Ethics Com employeesfrom soliciting contributions from lobbyistsfor any mission).Another objectiveis to providefor a black appointee purposeother than a campaigncontribution. Id. at § 36-25-23(b); lo the EthicsCommission. Id. The amendedEthics Actalso clar see id. al § 36-25-1(18)(defining lobbyist). It prohibits paying ifies the powersand responsibilitiesor the Ethics Commission lobbyistscontingent upon the passage or defeat of legislative membersand or the director. Id. at§ 36-25-4. action. Id. at§ 36-25-23(c).It also establishesmany filingguide Theamended Ethics Act changes when a candidate,public official linesfor lobbyists.Id. at§§ 36-25-18to 21. 34 / JANUARY1996 THE ALABAMALAWYER l'inally, the amended Ethics Acl creates lhe crime of false AttorneyGeneral had not addressedthe spendingof excesscam reporting to the Ethics Commissionand increases the penal paign funds by elected officials,only by "candidates,"and had ties for other violations.Id. at §§ 36-25-26& -27. At the same not issued the opinion to GovernorHunt. Moreover,the Attor time, the amended Ethics Acl repeals former section 36-25-25. ney General opinionon which GovernorHunt reliedaddressed which imposedsevere penalties for falselyaccusing anyone of only the lawfulnessof conduct under the fair CampaignPrac violatingthe Ethics Act. tices Act The Attorney Generalopinion did not addressthe law fulnessof conduct under the Ethics Act.Hunt v. State, 642 So. Case Lawlnterpretin~ the Ethics Act 2d 999, 1015 (Ala. Crim. App. 1993) (per curiam), afrd per A recent surge of interest in enforcement of governmental curiam,Ex ParleHunt, 642 So. 2d 1060 (Ala.1 994). ethics was generated in this state in part by the publicitysur The amendedEth ics Actincorporates the Hun/ decisionsinto rounding the trial and subsequent removal of GovernorGuy section 36-25-6, which now references the Fair Campaign Hunl, but the phenomenon is occurring on a national levelas PracticesAct. This amended section states that contributions well. AlthoughAlabama has had a version of an Ethics Act in may only be used fol' expensesof the campaign, those reason placesince 1973, there have been relativelyfew cases interpret ably related to the performanceof official duties, donations to ing its provisionsuntil the last fewyears. state funds, IRS recognized non-profits, or transitional and Cases interpreting the former Ethics Act provideinsight for inaugural expenses. Ala. Code § 36-25-6(c) (effectiveOct. l, understanding the amended Ethics Act. Whether the use of 1995). It goes on to prohibit specificallylhe conversionor con excesscampaign funds is a violation of the Ethics Act was a tributions to personal use. Id. at § 36-25-6(d). critical issue in the Hunt cases.2 Other issues arising under the Ethics Act have included determinations of who is deemed a B. Coverage- "Candidates," "Public Officials" and "Public "publicofficial," "public emp loyee,"or ''candidate," and specifics Employees" of what constitutes a "conflictof interest" or "direct personal Prior to the amended Ethics Act, only those qualifying or financialgain." running for office were considered to be "candidates." The Alabama Supreme Court determined that this was the Legisla A. Use of "Exce.\SCampaign Funds" ture's intent with the former Ethics Act. Watson v. Figures, In the Hunt cases, allegations against Governor Hunt were 631 So. 2d 936 (Ala. 1994).Section 36-25-1(3)of the amended based on his use of contributions, which he maintained were EthicsAct expands the definition of candidate, broadening it to "excesscampaign funds," for his personaland living expenses. In include U1osewho have receivedcontribu tions or made expen Ex Parle Hunt. Governor Hunt argued thal the use of such ditures (or consented for another to do so) "with a view to funds for this purpose was permitted by the Pair Campaign bringing about ... nomination or election to any state or local PracticesAct. A la. Code§§ 17-22A-1el seq.,and thereforewas office:· in addition to those who have either qualifiedor taken not a violation of the Ethics Acl. 642 So. 2d 1060 (Ala. 1994) aclion to qualify in a particularelection. Ala. Code § 36-25-1(3) (per curiam). An AttorneyGeneral advisoryopinion interpret (effectiveOct. I, 1995).The language is adopted from the l'air ing the 1988 fair Campaign Practices Act states that the Campaign Practices Act, Ala. Code§ 17-22A-2(Supp. 1994), statute's allowanceof use of campaign funds for "other lawful and creates parallel coverage of candidates under both acts. purposes"permits their use for personal expenses.See 219 Ala. This amendment also alters the holding in Muncosterv. Alo!Xl Atty. Gen. Op. 16 (1990) (interpret ing the Fair Campaign ma Slate Ethics Commission.372 So. 2d 853 (Ala. 1979),which PracticesAct). held that candidateswere not governedby the Ethics Act until On appealfrom lhe AlabamaCourt of Criminal Appeals.the they applied to qualify for an election. Supreme Court of Alabama rejected Governor Hunt's argu The broad sweep of U1eamended definition of "candidate" is ment for two reasons. First. the funds at issue were solicited mitigatedso mewhatby the establishmentof a minimumamount after the election for a non-profitcorporat ion for the purposes of contributions or expendituresthat must be reached before a of fundingthe inauguration.transition expenses,renovating the person is a "candidate."The minimums are $25,000for statewide Governor's mansion, and the like. The Alabama Supreme office,$10,000 for AlabamaSenate, $5,000for circuit or district Court held that these purposes were unrelated to campaigning officeor Alabama Houseo r Representatives,and Sl,000 for local and, therefore, the monies contributedto this non-profitchari office. table corporation were not excess campaign funds. Ex Parle Additional burdens are placedon municipal and county can Hunt, 642 So. 2d 1060. didates by the amended Ethics Act, overruling Walsonv. F'ig Second, even if they were considered excess campaign ures, 631 So. 2d 936 (Ala. 1994). In Watson, the Alabama funds. the supreme court affirmedthat their use for personal Supreme Court held that candidatesfor municipaland county expenseswou ld be a violation of the Ethics Act. Id. at I 065. offices were not required to rile a Slatement of Economic lnterpreting the Fair CampaignPractices Act in tandem with Interests. By including municipal and county candidates in the Ethics Act, the AlabamaSupreme Court ruled that personal the definition of "candidate."and by the changes in sections use of campaign funds is not a "lawful purpose" within the 36-25-14and 15, candidatesfor those offices,as well as candi meaning of section 17-22A-7,since the use of those funds for dates for state officewho were coveredunder the former Ethics personal expensesis made illegalby the Ethics Act Id. Acl,are now required lo file a Statement of EconomicI nterests. In response to GovernorHunt's use of the Attorney General Determination of who is governedby U1e EthicsAct is and ha_< opinion, the AlabamaCourt of Criminal Appealsnoted that such been a source of controversy throughout its existence. In this an opinion is not law and that in this particular opinion the respect. lhe amended Ethics Act is much more thorough in its THE ALABAMALAWYER JANUARY1996 / 35 definitions of a "public official"and "public employee."Under ma courts have relied on a definition suppliedby the Alabama amended section 36-25-1(25),a "public official"is any person Court of CriminalAppeals. which was adapted from the Ethics elected or appointed to public office at the state, county or Act'sstatement of purposes,describing a conflictof interest as municipal level of government, including government corpo a "connict betweenan official'sprivate interests and his or her rations. In addition, chairs and vice-chairsof each state politi officialduties." Rampey v. State, 415 So. 2d 1184(A la. Crim. cal party are definedas public officials.Under amended section App.1982) . The new definition is more detailed and includesa 36-25-1(24),a "publicemployee" is any person employedat lhe list of specificexclusions not consideredconflicts of interest. state, county or municipal level of government,including gov Another significantaddition to the Ethics Act is a provision ernmental corporations and authorities, who is paid in whole lhat obliges legislators not to vote on matters in which they or in part by state, municipal,or county funds. Employeesof know or should know they have a "conflict of interest." Ala. hospitals or other health care corporations, however, are Code § 36-25-5(b).The adopted language is basicallya codifi excluded.ln addition,except for lobbyists,part-time profession cation of the decision by the AlabamaSupreme Court in the als who earn less than 50 percent of their incomefrom govern 1985 Opinionof the Justices No. 317, 474 So. 2d 700 (Ala. ment workare also not considered"public employees." 1985). The amended Ethics Act's more detailed definitions help to The question posed to the supreme court in 1985 was resolve some of the coverageissues arising under the Ethics Act whether legislators may vote on pay raises for educatorswhen that have been decidedheretofore on a case-by-casebasis. Early either they or their sp0uses are employedor paid by the state in the Ethics Act's history, the AlabamaSupreme Court ruled educationsystem. The challenge questioned whether the legis that membersof the Boardof Bar Commissionersof the Alaba lator's act of votingwas in violation of either the AlabamaCon ma State Bar, the Judicial CompensationComm ission, and the stitution or the Ethics Act. The supreme court answered, on Court of the Judiciary were not covered under the Ethics Act. constitutional grounds only. that so long as a bill does not Wrightv. Turner.351 So. 2d l (Ala. 1977).The amended Ethics affect a legislator differentlyfrom lhe other members of the Act presumably continues to exclude those and other mem class to which he belongs, there is no violation of law.Id. bers of entities of that type (entities with members that are The amendedEth ics Actre nects the AlabamaSupreme Court's neither elected or appointed officials,nor paid employeesof a opinion by adopting the answer of the Opinionof the Justices state, county, or municipal government, or their instrumen No. 317 in its definition or "conflict or interest": talities). A conflict of interest involvesany action, inaction, or The specific inclusion of employeesof government corpora decision by a public officialor public employeei n the dis tions and authorities as "public employees"clarifies some con charge of his or her officialduties which could materially fusiondemonstrated in Langhamv. State, No.CR-92-1302, 1994 affect his or her financial interest or those of his or her WL 169978 (Ala.Crim. App. May 6, 1994). In that case, lhe familymembers or any businesswith which the person is question arose as to whether members of the Prichard Water associatedin a manner differentfrom the manner it affects Works and Sewer Board were subject to the Elhics Acl. The the other membersof the class to which he or she belongs. board members argued that as employees of a corporation, Ala. Code§ 36-25-1(8)(effec tive Oct. l, 1995). ln the opin- they were not "public employees."while the state argued that ion, the supreme court discussed the potential complexitiesof they were within the scope of this term under the Ethics Act limiting legislators'ability to vote on matters that could affect The AlabamaCourt of Criminal Appealsresolved the issue by them personally.Opinion of the JusticesNo. 317, 474 So.2d at looking to the "original" statute (shortened and amended in 703-04. The supreme court drew a distinction between those 1986) and determined lhat, as board members of a "public matters that benefit a legislatoras an individual or as a mem utility," they were coveredunder the Ethics Act.Under amend ber of a small class, as opposed to those that benefit a large ed section 36-25-1(24),a board member of a ·'governmentcor class of which the legislator may be a member. For instance, poration" is clearly "publicemployee". a lhe opinion pointed out the problems of a legislator asked to In Harrisv. Ethics Ccimmissionof State, 585 So. 2d 93 (Ala. vote for a tax cut. a decision that will result in a financial ben- Civ.App. 1991), the issue was whelher an Industrial Develop ment Board (lDB)was an "instrumentality" of a municipalgov ernment so that its members were "public officials"subject to James S. Christie , Jr. lhe Ethics Act.The AlabamaCourt of Civil Appeals ruled that James S Chrislie,Jr receivedhis undergrad uate degree from RhodesCollege and his it was, basedon legislativeintent expressedin the definitionof master'sdegree and law degree from Duke "publicofficia l" under the EthicsAct and the entity's fundamen University.Ha is a partnerwith the f1nnol tal ties to the municipality. Under the amended Ethics Act, Bradley,Arant. Rose& Whitein Birmingham members of the IDB and similar "instrumentalities'' of state, county or municipal governmentwould continue to be within lhe scopeof the Ethics Actas publicofficia ls. C. "Conflictof lnleresl" and "Direct Personal Financial Gain" A formaldefinition of a ··connictof interest" is now included Anne S. Hornsby in the amendedEthics Act in section 36-25-1(8).This definition AnneS Hornsbyi s a studemat !he Univers,tyof AlabamaSchool of Law in lhe amended Ethics Act c.larifies and adopts court rulings Ann P. Vand eveld e applyingprovisions of the former Ethics AcLUntil now,Alaba- Ann P Vandeveldeis a studentat Vandertiill Unlvers,tySchool of Law 36 / JANUARY1996 THE ALABAMALAWYER efit for the legislator.Similarly, the conflict arises where a vote body,where there is no connection betweenthe public official's by a legislator who is involved in the banking industry may or public employee'sduties and the adviceor assistance, violates affect interest rates, which ultimately might work to his or her the Ethics Act. Former section 36-25-7 simplyprohibited public financialbenefil officialsor public employees from receiving fees for providing Basedon the AlabamaSupreme Court's beliefthat voters know advice or assistance to a governmentagency, without any men and expect their legislators to deal with such matters as educa tion of a conflict of interest. ln Kirklandv. State, 529 So. 2d tion and financewhen they elect them, the supreme court found 1036 (Ala. Crim. App. 1988), the Alabama Court of Criminal no constitutional reason to require legislators to recuse them Appealsfound that U1emere receipt of a fee for adviceor assis selves from the vote on an education pay raise despite their tance from a state agency,absent a conflictof interest in the con financial link lo the legislation. Although the supreme court sulting services provided,did not violate the former Ethics Act. declined to answer the question on the basis of the Ethics Act, The court or criminal appeals looked to the Ethics Act's state it specificallynoted that its analysiswould apply to it as well. Id. ment of purposes (section36-25 -2) in determiningthat a conflict In Lambertv. Wilca~Ccunty Ccmmission, 623 So.2d 727 (Ala. of interest was a necessary element of an infraction. Amended 1993), the Alabama Supreme Court extended its holding and section 36-25-7 states that no covered person "shall solicit or rationale from the 1985 Opinionof the JusticesNo. 317 to the receive any money ... for advice or assistance on matters con Ethics Act. It ruled that a county commissioner need not elim cerning the legislature, lobbyinga legislativebody, an executive inate himself from a vote on a sales tax increase to fund educa departmentor any public regulatory board, commissionor other tion merely because he is also a school bus driver. bodyof which he or she is a member:· Amendedsection 36-25-7 The amended Ethics Act reflects the logic or the Alabama also prohibits soliciting,receiving or offeringa thing of value "for Supreme Court's decisionsand echoes similar policies in other the purpose of influencing official action." Logically,receipt of states.See id. (citing comparablelaw in KentuckY,Delaware, and fees for legitimateconsulting services unrelated to a public offi Connecticut).Nonetheless, where a legislator is a member of a cial's or public employee'sduties, that is, where no conflict of small class that benefits from legislation, even if all class mem interests exists,would still not be prohibited. bers are affectedin the same way,the result is less clear. Notably, An issue related to conflictsof interest is the question or what a proposed amendment to the Ethics Act would have taken a constitutes "direct personal financialgain." Are activitiesentered different view. forbidding legislators to vote on a matter affect into that could result in financial benefita violation of the Ethics ing their employer or directlyaffecting the ir income or employ Act? Or, must such benefit be realized before a violation exists? ment. In Allen v. Stale, 380So. 2d 313, 330-32(A la. Crim. App. 1979), The amended Ethics Act has new language for whether fees cert. denied, 380 So. 2d (Ala. 1979),449 U.S. 842 (1980), the for adviceor assistanceon matters concerning a governmental Alabama Court of Criminal Appeals held that Allen's conduct EFFECTIVELEGAL RESEARCH NO LONG TERM CONTRACT NO START UP COST EASYTOUSE Fast, powerful, software allows the user easy access to the Decisions of the Alabama Supreme Court, Alabama Court of Civil Appeals, Alabama Court of Criminal Appeals, the Alabama Code and Rules of Procedure. Alabama Appellate Decis ions UPDATED MONTHLY Alabama Code NO COST TRIAL Alabama Rules of Procedure e.,;,_ 'I-'-'.., -~,"9•- s,"Er--i: TOORDER CALL205 815-2203 '"'"1, Alabama (205) THE AL.\BAMAIAWYER JANUARY1996 / 37 in securing financingfor a venture in which she had an unspec Lionsand other provisions. These amendments should clarify ifiedconnection was for the sole purposeof promoting her cor the Ethics Act for those attempting to complywith the law. porate endeavors, which would ultimately result in personal gain. This conduct was held sufficient to support a conviction Scope and Effect of Other Law under the Ethics Act. despite the fact that the financing was A. Ethics CommissionAdvisory Opinions later rescinded.Id. Advisory opinions issued by the State of Alabama Ethics Similarly, in Chandleru . Alabama,615 So. 2d 100, 106-07 Commissionare not law. but they may protect certain persons (Ala. Crim. App.1992 ), cert. denied,615 So.2d111 (Ala. 1993). from liability under U1eEthics AcL Section 36-25-4(a)(9) of the AlabamaCourt of CriminalAppeals found that a mayorwho the amended Ethics Act defines the scope of individuals pro used his officeto negotiateand sell real propertythat he person tected under advisoryopinions as those who request the opin ally owned had violated the Ethics Act. The court of criminal ion and those 1vho reasonably rely, in good faith, on the appeals stated that to require that a contract actuallybe execut opinion in a materially like circumstance. The amendments lo ed would be contrary to the purposesof the EthicsAct. In Hun/ this section of the Ethics Act reflect prior court decisions such u. Tuckei·,875 P. Supp. 14S7,1511-12 (N.D . Ala. 1995), the dis as Hu11tv. Anderson,794 F. Supp. 1557 (M.D.Ala. 1992),a!fd trict court discussedChandler in its analysisof when a violation without opinio11,976 F.2d 744 {11thCir. 1992). took place,thus starling the running of the statute of limitations. Hunt v. Andersonillustrates the significanceof Ethics Com and commented that under Chandler"ser ious" negotiations mission advisory opinions as viewed by the courts. This case seemed sufficient to violate the Ethics Act. arose from Governor Guy Hunfs use of state aircraft to travel Amendedsection 36-25-5still uses Lhephrase "personalgain," to religiousservices where he accepted monetary donations. In but also requires that personal gain encompassthe receiving, deciding this case, the district court considered lhe applicabili· obtaining, e~erting control over, or converting to personal use ty of two advisoryopinions. State of AlabamaEtl1ics Commis the object constituting the personal gain. Although still deter sion Advisoryopinions 466 and 1019 placed no limits on the mined somewhaton a case-by-casebasis, the additionallanguage use of stale-owned vehicles and aircraft by a governor and of amended section 36-25-5 seems to reflect the broad view of authorized their use for personal and vacation trips. Governor the courts in considering when an improper benefit has been Hunt argued that, in light of these ethics Commissionadviso realized. ry opinions. application of the Ethics Actwould be discrimina tory and a violation of his constitutional right of due process. D. Conclusion However, the district court held that advisoryopinions protect The amended EthicsAct largelyreflects the case lawconstru only tJ1epersons to whom they are directed. Thus, the District ing the former EthicsAcL Significantly, the AlabamaLegislature Court found that the advisory opinions did not create any relied on court decisions in amending lhe Ethics Act's defini- rights in GovernorHunt to have his actions governed by them as a matter of due process. Hunt v. Anderson, 794 f'.Supp. 1557. Had the District Court in Nu11/v. Andersondetermined the protectivescope of the Ethics Commission'sadvisory opinions LuskAppointed New under the recently amended Ethics Act, it would have focused on whether Governor Hunt's situation was "materially like" the circumstances upon which either advisory opinion was AssistantGeneral Counsel based. While not a primary consideration, the district court noted that the advisory opinions did not address the specific Robert E. Lusk. Jr. was question of a governor receiving payments of money for activi recently appointed to ties conducted while on such trips. Hun/ v. Anderson,794 P. the position of assistant Supp. at 1560.This distinction drawn by the district court sug general counsel of the gests that the courts may narrowlydefine the scope of advisory AlabamaState Bar. Lusk opinions issued by the Ethics Commission. receivedhis undergradu Whilethe authorityor the Ethics Commissionto issuean ate degree from Auburn advisoryopinion, the scope of that opinion, and the validity of University and his law the Ethics Act may be challenged, the substance of an advisory degree from the Univer opinion, which does not have the power of law, cannot be test· sity of Alabama School ed in court. Accordingly, the Alabama Supreme Court dis of Law. After serving as missed on appeal an action brought by a state official challenging the conclusion of an advisory opinion issued by law clerk and bailiff for the Honorable H. Randall the Ethics Commission. Underwoodu. State. 439 So. 2d 125 Thomas, he became an assistant attorney general for (Ala. 1983).The supreme court held that an advisory opinion the State of Alabama in May 1988. In January 1993, of an administrative board, having no force of law, is not sub· he was named chief counsel, deputy district attorney ject to review by courts, either by appeal or by action for for the Fifteenth JudicialCircuit. • declaratoryjudgment. Id. at 128. Nonetheless,Alabama courts have afforded Ethics Commis sion advisory opinions serious consideration. In !(irk/and u. 38 / JANUARY1996 THE ALABAMALAWYER State. 529 So. 2d 1036, 1040-41 (Ala.Crim. App. 1988), the another Alabamalaw. Hence. one should consider other Alaba Alabama Court of Criminal Appealsdeclared that lhe Ethics ma lawsbefore conc luding that an action is legal in Alabama. Commission'sinterpretation of lhe Ethics Act should not be disregardedunless it is erroneous based on the statutory lan Contactinl(t he State of AlabamaE thics Commission guage. Recognizingthat the Ethics Commission's opinionsare not law, the court of criminal appeals neverthelessfound that The State of Alabama Ethics Commission ofl1cein Mont they are "entitled to due weight and favorableconsideration gomery is located at RSA Union, Suite 104, 100 N. Union when the reviewingcourt interprets the IEthics Act)."Id. Street. and is open from 8:00 A.M.until 5:00 P.M. on week days. Undersection 36-25-4(a)(5)of the Ethics Act, the Ethics B. Attorney General Opinions Commissionmust make reports and statements filed with the Attorney general opinions are merely advisoryand also are Ethics Commissionavailable to the public inquiry during reg not consideredJaw by the courts. In Hunt v. State. 642 So. 2d ular business hours. In addition. one ma)•request in person 999 (Ala. Crim. App. 1993) (per curiam). alf'd per curiam, Ex copies of advisoryopin ions. Accordingto section 36-25-4(a)(9) Parleliunt. 642 So. 2d 1060 (Ala.1994), the AlabamaCourt of or the Ethics Acl, reasonablecharges may be imposedon per Criminal Appealsheld that an attorney general opinion pro sons requestingadvisor)• opin ions. tects only the officerto whom it is directed from liabilityaris Each year, the Ethics Commissionpublishes in one volume ing from an action performedas advisedin Lheopinion. Id. at its formal ad,,isoryopinions for that year, a cumulative index 1015. In addition, the court of criminal appeals recognized of all opinions issued since the 1973 passageof the Ethics Act, that the attorney general opinions in question addressedonly and a list of all formal advisoryopinions altered or rendered the F'airCampaign Praclices Act without any reference lo the moot by court decisions or statutory amendments. This book Ethics Act. l'or these reasons, the court of criminal appeals can be purchased from the Ethics Commission for approxi rejected Governor Hunt's arguments based on two attorney mately S25.00.The published advisoryopinions for each year general opinions Lhat were issued after he performed the are generallyavailable lat e in the followingyear. actions in questionsin his suit. Id. If one has any doubts about a certain activity, it is advisable Alabama'sattorney generals have repeatedlystated that they lo contact the State of Alabama Ethics Commission at (334) will not issue advisoryopinions on the Ethics Act as that is the 242-2997or send a written requesl lo P.O. Box 4840, Mont duty of the Ethics Commission. Therefore, attorney general gomery, Alabama.36130-4840 . All inquiries, based on actual opinions should not directly affect or be affected by the or hypothetical situations, are answered eiU1er by an oral amended EthicsAct. response or a formalwritten advisoryopinion. C. Other RelatedStatutes ENDN OTE S Section 36-25-30 of the Ethics Acl states that it "shall be 1. This at1icfeIncludes excetplS lrom the AlabamaEthics Law Handbook, construed in pari materiawith other lawsdealing wilh the sub whichIs beingpublished and Save BIG Money On Legal Advertising RichardWilson & Associates In Etowah County Registered Professio nal By Advertising In Court Repo rters · The Me§§enger· 804 S. Perry Street Advertising Rates Are 1/4 of Daily Newspaper Rates Montgomery, Alabama 36104 ''Eto wa h Co un ty's Wee l THEALABAMA LAWYER JANUARY1996 / 39 LEGISLATIVEWRAP-UP By ROBERTl. McCURLEY,JR. he 1996 Regular Session 48, includingAlabama who adopted the ter as an LLPwith the probatejudge in or the Legislature con LLClaw in 1993. the county in which the LLPhas its prin venes Tuesday, February While the Alabama Law lnslitute 's cipal place of business and secondarily 6, 1996 and can continue PartnershipCommittee, chaired by Fred with the AlabamaSecretary of State and until the last p0ssible day Daniels,was workingon the Partnership would pay an annual registration fee to IIfor meeting which is May20 , 1996. One Act, a separate task force of representa maintain its status. The LLPis common or the major pieces of legislation that tives of the state bar, the AlabamaTrial ly used by large law firms and account will be presented to the Legislature is LawyersAssociation and the Alabama ing firms in other states and appears to the RevisedPartnership Act, see Alaba Societyof CPAsmet on severaloccasions have become the entity of choice with ma Lawyer, July 1995, with a section to review the various state Limited Lia multi-state law and accounting partner concerning Limited Liability Partner bi Iity Partnership acts and determine ships. The Partnership Act also provides ships. how a proposed LLP legislation in an article on how to convert partner Attorney Bruce Ely. one of the mem ships to limited liabilitypartnerships and bers of the committee that helped drafl the effect of such merger. This bill has the Limited LiabilityPartnersh ip (LLP) received some minor tuning from the section. states that it is the latest addi one introduced late in the 1994 Legisla tion to the choice of entity menu. The ture by Senator Wendell Mitchell and number of states that have adopted LLP RepresentativeMike Box. legislation in the last four years has Another major revision of the Alaba grown from one to 37. This is getting ma Law Institute to be introduced will close to the number of states which be Revised Article 8 of lhe Uniform have adopted Limited Liability Compa Commercial Code,see AlabamaLawyer, ny (LLC)legislation which, to date, is July 1995. The Article 8 bill was intro duced in both houses of the Legislature and passedboth the Houseand the Sen MAP MOBILE HOME ate but neither version was able to gain SERVICE consideration in the last day of the ses sion although no opp0sitionappeared. It is also expected that the Institute will introducea bill to appealArticle 6 of the ~ MD UCC.Artic le 6, Bulk Transfers,has been Expertwitness, twenty years Alabama would fit with the other Alaba repealed in 34 states and has been rec experiencein the mobilehome ma entities. This task force, chaired by ommended for repeal by the Permanent industry. Five yearsexpe rience Scott Ludwig of Huntsville, and using Editorial Board of the Uniform Com as a consultant concerning as technical advisors three co-authors mercial Code, the Commissioners on of the LLC act, namely Bruce Ely of Uniform State Lawsand the American mobilehome litigation . Tuscaloosa,Brad Sklar of Birmingham LawInstitute. Licensedand Statecertified. and Universityof AlabamaSchool Law For further information, contact Bob On site inspections, analysisof ProfessorJim Bryce, chose to adopt the Mccurley, Alabama Law Institute, P.O. mobilehome condition. more modern 1..LPapproach commonly Box 1425, Tuscaloosa,Alabama 35486, referred to as the ''bullet-proof' variety. or call (205) 348-7411, FAX(205) 348- References,re sumeand fee In the LimitedLiability Partnership venic 8411. • schedule available upon ular, a bullet-proof LLP provides a lia· request. bility shield very similar to that For all mobilehome needs provided by Limited Liability Compa Robert L, M~urley , Jr , contact: niesand businesscorporations but al the same time will not shield a profes Robert L McCUiiey, JI. BillHoppe is 1hed.i reetor 0, the sional from his or her own malpractice Alabamalaw lnslJll)te P.O. Box154 or that of a subordinate. at 1heUfll vffl lly ol Alabama He receM! d Jackson'sGap, Al 36861 Unlike the Alabama Limited Liability his undorgraduai& and (205) 825-8027(Home ) CompanyAct there wouldbe no required tawde grees rromthe 825-9210(Office) organizationaldocuments of an LLP.A Unlverst1y general partnership would simply regis- 40 /JANUARY1996 THE ALABAMALAWYER Wanted: Legal Employment Job Hunt a Struggle for Alabama Grads ··. -~ W.-.~'.·-~ by Susan Cullen Anderson , ~·.:•t. .. -... ~~ ike White has followedthe rules. tistics bear out Still, 1995 graduates have a rosier He has done well in law school, White's experi future than their 1992 or 1993 counter Mclerked for two law firms, and is ence. While the parts had. "We tend to think the market a memberor the ABAnational tria l team. job marketis bet• is betterthan it wasthree years ago, but He is chief judge of the Cumber land ter than it was not as good as it was 12 years ago; said Trial AdvocacyBoard and he has several two years ago, pri Jenelle Marsh,assistant dean for students years of real-lifework experience.What va le practice and academic affairs at the Universityof White doesn't have is a job. employment is AlabamaSchool of Law.The latest figures White, a U1ird-yearCumberland stu the lowest it has available, for the class of 1994,show that dent in the top 22 percent or his class. is White been since 1980, 96 percent of her school's graduates got confident that something will work out, according to Paula a job of one sort or another or went on but his wife Martha is getting nervous. A. Patton , executive director of the to graduate school as or March 1995.Her "It's frustrating not having a job, but National Association for Law Place worry is that students have fewer offers there are plenty of people with higher ment. Nationally, only 55 percent of from which to choose. grades than me thal don't have one yet," 1994 law school graduates went into pri At Cumberland,91 percent of the 1994 White said. vate practice. "It's been in a downward g.raduates were employedor in graduate Both statewideand nationally, the sta- spin for the last fiveyears," she said. school as of March 1995.Jeanette Rader, THE ALABAMALAWYER JANUARY1996 / 41 Cumberland's director of career services, NALPfigures, the decision to go to law him. ''111ere are simplyno jobs." said she sees more of an upswing than school may be suspect. Pete Burns, a partner with Bums, Cun two or U1reeyears ago. Still, it's not the While, who gave up a nice salary as an ningham & Mackey in Mobile, said his buyer's market of the mid-SO's."ll may insurance underwriter in South Carolina firm has four lawyersand has no plans to never be again." she said. and is deep in educationaldebt, was more grow. "It would be inadvertent,"he said. At Cumberland, 68 percent of the realisticthan some of his classmateswere explaining that the applicant would have 1994 graduates who found work are in when lhei• started law school, he said. to be really exciting. With today's tech private practice, compared to 59 per Now 31, he wants his loans paid off by nology, a small firm can compete toe to cent of Alabamagraduates. The rest are the time he is 40. "I don't expectto make toe with large firms, Burns said. "Tthink in clerkships. government work. public a lot of money right away,"he said. "I'm smaller and more specialized firms will interest law, business and industry or looking way down the road for income have a significant competitive advantage academia. At Alabama, the number of potential." over big firms:· he said. "A lawyerwho is students going to work for the govern Employersof all types can be choosier computer-sophisticated can put out a ment has almost doubled in the last five lhan they used to be in hiring law school tremendous amount of work." years, from eight in 1990 to 15 in 1994. graduates.Jefferson County Circuit Judge Ms. Patton of the NALPsaid she has Dean Marsh said she does not know WilliamWynn said he couldfill a dumpster seen a "real shift" in the job market as a why, but she suspects that students are with the resumeshe receivesfrom all over result of technology.One paralegalcan do now forced to look beyond private prac the country.'1 am beingdeluged," he said. the work of four junior ass-0eiates,and law tice for job opportunities. When he first became a judge in January firms increasinglyrecognize that, she said. Starting salary expectations generat 1989,his Jawclerk hadnot evenbeen to law The most important factor in the tough ed from watching l.A. law are not school.His present clerk gr.iduated with hon market. however, is lateral hiring, Ms. being realized by recent graduates who ors from the Universityof AlabamaSchool Patton said. With big firms downsizing, are employedin full-lime legal work. Of of law and hadtwo years of experience in young associates are being told they are the 1994 Cumberland graduates who Montgomerybefore she came to work for not on the partnership track, so they are reported their salaries, the median him. "She knowsmore Jawthan I do." he back on the job hunt, she said. lawyers salary was $30,000. The University of said. Judge Wynnsaid he Questionedone with three or four years of experienceare Alabama reported similar figures. With highly Qualifiedapplicant as to why she competing with new graduates for jobs, an average educational debt of $40,000 was interviewingfor a state court clerk and firms generally can hire laterals for to repay upon graduation, according to ship. 'There areno jobs," he said she told the same price as new graduates,Ms. Pat ton said. The lateral hires realize the scarcityof lawjobs and are willingto take less money, she said. EXCELSIOR-LEGAL'S Pournier J. Cale, LU,hiring partner at Maynard,Cooper & Cale in Birmingham, said he has seen a '·marked increase•·in the number of lateral applicants in the ~~d.Yld-UZ?Z,&lj/- Sf~/' last three or four years.Young lawyersi n cities like Atlanta and Washington,D.C., where firms are downsizing,are looking s259 for jobs. he said. "We're not good at hir ing those people, though," he said. Ideal for Laser Printers Because of Maynard, Cooper's heavy Includes: 1,000 Letterhead s and Envelopes reliance on their summer clerkship pro gram for permanent hiring, lateral hir 500 Business Cards, 500 Plain Second Sheets ing would not sit well with their young Also i11cl11desdies and a proof associates, he said. Cale has heard about 24 lb., 25%Couon. Laser Finish, While or Bamboo, more active lateral movement in Birm RecycledBond $259 ingham, however,he said. 24 lb.. 50%Cotton Law Bond,While , Bamboo Maynard, Cooper has grown steadily and Laser White $267 over the last decade without the extreme Crane's and Gilbert paper al additional cost nuctuation seen in big firms in other ...... ,,,,. c ities, Gale said. With a total of 72 E11gravillgplm,ts i11, \ lba11y,NY a11dOrla11do, FL lawyers, Maynard, Cooper has added an Callfor samples a11dlegal supply c{l/a/og, average of five lawyersa year for the last (800) 221-2971, ext. 503. ten years."I think we'vebeen much more stable, " he said. ''We didn't have a peak, ma so we didn't have to let people go." May ~celslor-Legol,Inc.' " S..r,f"l u,.,,.,v,, nard's hiring philosophy is that they :Sl•rl4"1 intend to practice for a lifetime with all 42 /JANUARY1996 THE ALABAMALAWYER of lhe la\\1•ersthey employ, unlike the her graduates are moving into non-tra top 25 percent of her class. customal some NewYork firms of hiring ditionalcareers. Few Universityof Alaba Ms. Harkins, a paralegal in her previ with the expectationthat only 20 percent ma students consider non-traditional ous life, entered Cumberland with the will become partners. The result is little jobs while in law school,said DeanMarsh , expectation of practicing law upon grad nuctuation. he said. but once they graduate, more are willing uation. While she had offersat lawfirms, Gale noted that his firm receives to say they have made a mistake and the job at McGriff.Seibels and Williams resumes from students at Virginia, Har move out of the practice of law. Paula allowed her the opportunity to design vard. Yale and Duke, and the students Patton of the National Association for insurance programs for bi Ilion-dollar are generally without Alabamaconnec Law Placement believesnon -traditional companies and still use her law degree tions. ·we couldn't get them five years careers are becoming more prevalent, on a regular basis, she said. ago," he said. ·The big firms in Lhebig although the data is not yet availableto The absence of law firm stress was an cities have cut back, and we're getting show it. added attraction, Ms. Harkins said. She the benefit."Top students al Alabama's There is a new mind set in the acade was 31 when she graduated, engaged to law schools are recruited by Maynard, mic community about job quality and be married soon and looking forwardto Gale said, but he concededthe competi alternativeprofess ions, and more schools having a family.The insurance broker tion is tough. recognizethat the J.D. is a nexible degree age firm offeredher flexibility. ''The pres To that. Frederica White Hecker can which can be useful outside the profes sure [ have is pressure 1 put on myself," attest In the top fivepe rcent of her class sion, Ms. Patton said. Blueb loods at old- she said. "There are no billable hours, at the University of Alabama School of 1i ne schools still insist private practice no one taking roll on weekends." Lawand a member of u1w Review,Ms. is the only respectable route, and "it will Amy Hubbard used her law degree to Hecker found a job clerking for Bank take a lot of effort by a lot of people at land a job as director of the job corps ruptcy Judge Thomas B. Bennett two the very top" to change that mind set, center at Trenholm State TechnicalCol· weeks before she took U1ebar exam in she said. lege in Montgomery.A 26-year-old1993 July 1995. Even though she knew there Mary Abbott Harkins, assistant vice graduate of U1eUnivers ity of Alabama was a rational explanation, ''it was really president at an insurancebrokerage firm School of Law,Ms. Hubbard never intend frustrating," she said of her intense job in Birmingham,is satisfied with her deci ed to practicelaw, she said. Ms. Hubbard, hunt. '·You know it's not reallyyou," she sion to followthe non-traditional route. from Attalla,worked for Paul Hubbert's said. ''Thebig law firmshave their choice A 1991Cumber land graduate,Ms . Harkins gubernatorialcan 1paign after graduation of anyone in the country now." was offered a job at McGriff, Seibels and but wanted to move into higher educa· Ms. Hecker, a 1987 Mountain Brook Williams,Inc. in the spring of her third tion, she said. Her lawdegree was invalu High School graduate and cum laude year. She spent most of her third year on able. "People lookat your resumeand say, biologyg raduate of UAB,clerked for law the job hunt despite the fact that she was you're qualified for anything," she said. firms both summers during law school chiefjustice of the honor court and in the She never would have been considered and interviewed constantly during her third year.She still struggled. LikeWhite at Cumberland, she said most of her classmateswere jobless during her third year. She feelsb lessed that she got a job when she did. LANDTECH86 White also clerked for law firms both Real Estate Settlement System summers,has done more than the expect ForT.Aser or MatrixPrinters ed extracurricular activities,an d has real life worke.xperience. While he is frustrated • HUD 1 Au tomatic Calculations that he does not have a job yel he is not • O,ecl THEALABAMA LAWYER JANUARY1996 / 43 for her position at her age without the degree. Ms. Hubbardsaid. Newlaw graduates should nol look to in-house cow1selpositions as a possibil ity,said James D. Pruett, a Gadsdenattor ney ,~ho was until a few months ago acting general counsel for AmSouth Bank in Birmingham. "It's a waste of time and stamps," Pruett said. VolunteerOpportunities Pruett, who workedfor AmSouthfrom 1986 until the fall of 1995, said most The AlabamaState LawLibrary corporations find in-house lawyers in firms which work for the company or attorneys with special expertise.He said is in need of docents to help he received a surpr ising number of resumes from quite experiencedlawyers give tours of the Judicial Building, with varied legal backgrounds. Pruett had 22 years of private practice experi ence before AmSouth recruited him, he Mondaythrough Friday, 8:30 - 4:30. said. In the time he was there, the num ber of in-house lawyers shrunk from nine to six. he said. He did not expect If you are interested, U1eservices performed by the in-house counsel's officeto e.,pand,or the number of lawyers to grow much larger. pleasephone (334) 242-4347. The prospectsfor lawschool graduates in comingyears may be brighter, with the number of applicants to law schools decreasing every year since 1991, said Ms. Patton. The job market for under graduatesis better, sohigher numbers are going straight into the work world, she said. With an average of four applicants for every law school slot, however,high quality graduates still will be facing intense competition for employment In the meantime, Mike White is still looking."Can you put my resumein your article?"he joked,adding that he is avail able al the Cumberland trial advocacy board office any day of the week. He is self-confident, the placement office at Cumberland has been helpful and he is "Court surety service no ordinary still interviewing." I will find a job doing something," he said. "I'll do whatever it agent can match" takes." • CIVILCOURT BONDS BY PHONE ... Susan Cullan Anderson BYTOMORROW · SusanCullen Ander son is a graduate of 1heUnlvers,ty or PROBATE • INJUNCTION • SUPERSEDEAS • REPLEVIN Alabamaand the DISTRESS FOR RENT • GARNISHMENT • ATTACHMENT Unwe 44 I JANUARY199 6 THE ALABAMALAWYER TurningDown That Co-EmployeeLiability Case Can Cost the Injured Employee and You Money lly Glenda G. Cochran and /Jt1/lidI! Sle/'em ...mployees and attorneys, rejoice: ll(c)(2) claim and include a discussion cificcases. 4 Co-employeel iability is not dead of the Alabama Supreme Court's recent The second definition for "willful con I .. in the state of Alabama. It is still expansion of what constitutes a "re duct" is: "The intoxication of another possible to recover for injured clients moval" of a safety devicefor the purpos employee of the employer if the conduct who are injured by willfulconduct of co es of attaching liability. of that employeehas wrongfullyand prox employees. imately caused injury or death to the Code of Alabama §25-5-11 provides §25-S.11 (c)(2) is Fundamentally plaintiff or plaintiff's decedent, but no that an employeewho is injured on the Different from the Other Co employee shall be guilty of willful con job by the willful conduct of another Employee Llablllty Sections duct on account of the intoxication of emP.loyeecan recoveragainst that employ §25-5-11. Code of Alabama provides another employee or another person."' ee. The code providesfour definitionsfor four specific definitions of ·'willfuJcon Again,this subsection has a very Ii mited willful conduct.Subsequently, Alabama duct,"The first of the lhese defines"Will· practical applicationsince it only applies Supreme Court decisions have made it ful" conduct as follows: "A purpose or to situations involving intoxication. very difficult, if not impossible, lo recov intent or design to injure another; and The third definition of '\villfulconduc t" er under three of the definitions of will if a person, with knowledgeof the danger is also fact-specificand is: "(The) [wlilfull ful conduct The quest for the practitioner or peril to another, consciously pursues and intentionaJ violation of a specific is how to recover under § 25-5-11.This a course of conduct with a design, intent written safety rule of the employer after article will offer two areas of interest to and purpose of inflicting injury, then he written notice to lhe violating employee the practitioner: a survey of the Jaw of or she is guilty of'willful conduct."" The by another employee who, within six Alabamar egarding subsection (c)(2) of supreme court has held that in order to months after the date of receipt of the 25-5-11, the "safety device"section, and recover under this subsection, the plain written notic.e, suffers injury resulting a guideas to how to analyze a 25-5-ll(c)(2) tiff must show that the defendant had a in death or permanent total disability as cause of action. Specifically,this article specific intent to injure the plaintiff.The a proximate resu lt of lhe willful and will focus on the hurdles a practitioner requirement of a specificintent limits the intentional violation."• must overcomein order to provea 25-5- application of this subsection to fact spe- The fourth definition for "willfulcon- THE ALABAMALAWYER JANUARY1996 / 45 duel" which is lhe most important to improvement or modificationof the tion (al or (c)(JJ,the Legislatureacknowl today's practitioner is that found in § machine which rendered the safety edged the important public policy of 25-5-ll(c)(2) and is the subject of this device necessary or ineffective."' promoting safety in the work place and article. ft defines willful conduct as fol This definition is fundamentallydiffer the imp0rtance of such guards in provid lows: ent from the other definitions of willful ing safety. The same dangers are presenl "The willful and intentional conduct in 25-5-11 because it d= not when a safety guard has been removed."• removal from a machine of a safety require that the plaintiff prove intent as The fundamental difference between guard or safely device provided by the state of mind. The plaintiffmust mere (c)(2) and the other co-employeeliability the manufacturer of lhe machine ly show that the removalof a safetyguard sections is this lesser burden o( proof. fl with knowledgethat injury or death occurred with lhe knowledge that an is far easier for a plaintiffto recover '"hen would likely or probably result from injurywould likely or probablyresult This a safety device is involvedbecause of the the removal;provided, however, that is a negligencestandard and was e.xplained underlying public policyconcern for safe removal or a guard or safety device by the AlabamaSupreme Court in Pres ty in the workplace.Therefore. to recov shall not be willful conduct unless ley v. Wiltz• as follows: er under (c)(2).the plaintiffdoes not need the removaldid, in fact, increase the "By making the willful, intentional to establish an actual intent to injure. clangerin the use of the machine and removal of a safety guard the basis for a was not done for the purposeof repair cause of action without the higher burden § 25-5·11(c)(2}: Essential Ele o( the machine or was not part of any o( proof of "intent lo injure" found in sec- ments of Your Case under Supreme Court's Interpreta tion of Code Section A. The First Hurdle: Identify the Manu facturer The first issue which you must address is to identify the "manufacturer" under the code section. In manycases, the ques International Law Section tion is whether the employer becomes a manufacturer of the machine by altering the machine. The board of bar commissioners recently approved the In llarris v. Simmons.a the employee plaintiffwas injuredwhen three of her fin formation of an international Law Section. international gers were amputated by a power press law is becoming more important to clients of all types. with which she was working.• The plain tiff brought an action pursWIIltto §25-5- There has been a steady growth in the number of attorneys ll(c)(2) and the AlabamaSupreme Court who regularly serve the needs of clients involved in all held that if the manufacturer or a machined= not providea safetydevice, aspects of international law. The organizational meeting the employer cannot be held liable under 25-5-ll(c)(2J .'0 This case stands ror the will be held on January 26, 1996, at the AlabamaState Bar proposition lhat where a manufacturer in the boardroom,from 10:30a.m. until noon. At the orga provides a safety guard, co-employees have a duty not to remove the device. nizational meeting, officerswil l be elected, the form of by Harris does not assist plaintiff's counsel laws approvedb y the commissionerswi II be made available, to determine whether the employer can ever be the manufacturer or the machine sub-committeeswill be identified, and concrete plans will for the purposes of 25-5-ll(c)(2). How be formulated to define the work of the International Law ever, this question was answered in the landmark case or Hanis v. Gifl.11 Section during 1996. In Gill, the plaintiffs employer pur chased a punch press that was 40 years You are invited to attend the organizational meeting. If old and basicallyunusable. 11 The employ youare unableto attend,but wouldlike to join the section, er'sengineering department rewired and reworked the press to get it into work please contact the director of programs for more informa ing order.1' The employeralso altered lhe tion at 1-800-354-6154. control buttons to increaseefficiency and bypassedan emergency stop button.'' The main issue addressedby the court was whether the defendant employer's modifications of the punch press made 46 I JANUARY1996 TMEALABAMA LAWYER the defendant the manufacturer of the In lagne v. Corr."' a case involving machine. When the evidence indicates press.15 The AlabamaSupreme Court held another mine accident, the Alabama that the safetydevice was indeedremoved that the term '·manufacturer"may include SupremeCourt again addressedwhat the from a machine. then the second hurdle not only the original manufacturer of a legislaturemeant by the term "machine"."' can be cleared and the third and most machine, but also a subsequent entity and found that the defendants had once important hurdle approached. (an employer)that substantiallymodifies again created a working environment or materiallya lters the product through where the plaintiffwas injured. The issue Th e Third Hurdle: Identify the the use of different components and\;Jr in !Agne was whether the failureto repair Safety Guard methods of assembly." Therefore, since a pumping device needed for the safety The third hurdle for the practitioner the defendant took an unusable and for the entire working environment was to consider when evaluating a potential unworkable punch press and turned it equivalent to removal of a safety device co-employeecase basedon § 25-5-11(c)(2) into a useableand workablepunch press, from a machine.isIn holding that Layne is to identify the safety deviceor guard. the employer substantially modified or was not entitled to a trial pursuant to Several Alabama cases have addressed material ly altered the machine and §25-5-11(cl(2) the Court said intention this issue .:?JSThe first of these cases became the manufacturer for purposes of the legislaturewas to prevent removal determinedwhether failure to give safety of §25-5-11(c)(2)." of a safetyguard from a machine, not an instructions to an employeeconstitutes Thus, the practitioner should first entire work environment."' The failure ,~illful and intentional conduct under check whether the defendant removed to repair the pump or improveits pump (c)(2)." In Bean v. Craig."° the plaintiff any safetydevices from the machine.Then ing capacityto keepthe mine freeof water was injured when he attempted to unclog counsel must determine whether the was not equivalent to removinga safety the paper"iaste removalsystem of a baler devices were provided by the original guard from a machine. Thus, the defen at the plant where he worked." Specifi manufacturer or the employer, and dant's conduct was not willfulunder the cally,tl1e plant's manager, the defendant, whether the employer made alterations act and the suit was barred by the exclu· had failedto followthe written safetypre and modificationsto the machine. lf so, sivity provision of Alabama's Workers cautions provided by the manufacturer the "manufacturer"hurdle can be cleared CompensationAct." Onceagain the court or the baler.which providedthat the baler and the secondhurdle can be approached. drew a distinction between a machine should be turned off when unclogging and a work environment. it.33 When the defendant employer was The Second Hurdle: Distin• Thus, the practitioner must determine told the baler was clogged,he instructed gulshing a "Ma chin e" from a whether the plaintiffemployee was injured that the baler should be left in operation Work Environmen t by a safetydevice being removedfrom the while an employee unclogged it.33 This The second hurdle the practitioner entire environment, or from a specific instruction led directly to the plaintiff's must clear is to determine whether the safetyguard was removed from a machine or U1ework environment. The Alabama Supreme Court has consideredwhat the PROfESSiONAf INVESTiCjATiVE 5ERViCES legislature meant by the term "machine" in hvocases. 11 OWNEd & MANA(jEd By A ln Jltal/ishamv. Kiker," the plaintiff PRACTiCiNCj MEMbER Of THE employeewas injured while working in a mine. The government mandated that AIAbAMA STATE BAR support timbersshould be installedwith· in the mine for safety.20The timbers had been designedto preventthe injurywhich happened to Mallisham.21 The plaintiff employee brought suit against his co CIA, iNC. employeesclaiming that their failure to insta.11the needed timbers amounted to removal of a safety guard pursuant to COB URN INVESTIGATIVEA GENCY section (c)(2)." The trial court granted summary judgment to the defendant because the limbers involvedwere part of the entire working environment and *THESURVEILIANCE SPECIALISTS' not a part of a machine as required by § 25-5-1l(c)(2). The supremecourt affirmed, CORPORATE OFFICES holding that the timbers(safetymecha 2325 MORRIS AVENUE nisms) required by the federal regula tions were not a part of a machine but BIRMINGHAM, AL 35203 rather a work environment. Thus, a work environment is not a machine. 205/918-0042 f AX/918-0024 THEALABAMA LAWYER JANUARY1996 I 4 7 injury and the plaintiffbrought suit pur patrolling the campus.~ On the day of the injury. Applying this definition,there suant to 25-5-ll(c)(2), alleging willful the plaintifrs injury, Lhe plaintiff was are hundreds or exampleso f items which conduct by the defendant for failing to drivinga vehicle providedby the employ could constitute safety guards if they are followthe safety instructions. er for the secur ity guard lo make his removed. For instance, car doors. any The AlabamaSupreme Court held that rounds."' However, the door of the vehi type of cat walk, insulation on pipes the provisions of §25-5-ll(c)(2 ) regard cle would not remain closed unless the which is designed to protect employees ing a safetydev ice did not includeinstruc driver held it closedwith his left arm. The from contact with pipes, even boards on tions like the ones in Bean. The court defendant was aware of the problem. Yet, top of tanks which employeesuse to walk reasoned that the exception in c(2) deals despite knowledge,the defendantordere d across Lhe tanks, could be construed as only with safely guards and devices pro the plaintiff to use the vehicle." While safety devices if their removal caused the vided by the manufacturer, not instruc the plaintiff was operating the vehicle, injury. E:xperttestimony may be neces tions. Therefore, the instruction not to the door opened and the plaintiff fell out sitated to help establish the purpose of stop the baler did not constitute willful suffering injuries.38The plaintiff brought the device in question. conduct under the act, and the plaintifrs suit claiming the door was a safety guard Once the pract itioner can clear this action was barred under the exclusivity which Lhedefendant had removedby fail. hurdle he or she may be faced with yet provision. From this case, "safetyg uard" ing to repair it.39 The AlabamaSupreme another hurdle, the concept of removal. does not include the failure to provide Court set out to define the term safety safety instructions which the manufac guard in order to determine whether lhe The Fourth Hurdle: Determine turer of the machine provides. door met the definition.'° The court con Whether the Safety Guard was The next and most important case to cluded that a safetydev ice or safety guard Removed - Either Actively or the viability of any (c)(2)actio n is Moore is an item which is provided principally, Constructively v. Reeves." In Moore, the plaintiff was a but not exclusively,as protection to an The practitioner must next determine security guard who was employed by employee, which provides some shield whether a safety guard has been removed Oakwood College. His duties included between the employee from incurring from the machine. The concept of injury while he is engaged in the perfor •·removal" has resulted in various and mance of the service required of him by sometimes inconsistent results from the UPCOMING MEDIATION the employer. lt is not something that is Alabama Supreme Court. The statute T•R•A•l•N•l•N•G a component part or the machine whose imposes liability if a safety guard or safe principa l purpose is to facilitate the ty devicewhic h was providedby the man work." In applying this definition, the ufacturer of the machine was removed January 1 /. 13, 1996 Court found that the door to the car \oas with kno,"ledge that injury would likely General Mediation a safety deviceas it was provided to pro or probably result from that removal. tect the driver of the vehicle from haz This is an area of concern to the practi Montgomery ards while driving during the course or tioner as the evidence must show that a Settlemen t Institute his duties for the College." safety guard was removed or some equiv ( 404) 758-9004 Recently, the Alabama Supreme Court alent of removal. reiterated this definition of safety device The first, and most important , case which is instructive to the practitioner January 19·23, 1996 in Smith v. Wallace." In this case, an ironworker was injured while operating with regard to removal of a safety device Divorce Mediat ion a metal grinding machine. The machine is Moorev. Reeves.44 Moorewas the case Birmingham was used to shape or sharpe n metal described above involving the security Atlanta Divorce Mediators which was held against the machine's guard where lhe door was determined to 1-800-862· 1425 abrasivewheel as it rotated at high speed. be a safety device. The court addressed a A tool resting on the grinder served a second impor tant issue in that case; dual purpose; it allowed the work to be whether the failure to maintain or repair February 22·25, 1996 done with greater precision and it also a safetydevice was tantamount to removal Mediation Process & Skllls protected the worker 's hands from of that safety device. The court held that Birmingham injury while the grinding wheel was in a co-employees' failure to maintain or Mediation Corp. operation. Thus, although the tool rest repair a safely device is !he equivalent was not exclusively provided for the of the removal of that safely device for 1-800-ADR-FIRM safety of the worker, safety was a factor. purposes of Section 25-5-ll(c)(2)." To The court held this was sufficientto hold otherwise. the Court explained, March21·24 make it a safety device within § 25-5- "would allow supervisory employees to Mediation Process & Skllls 11(c)(2). neglect the maintenance and repair of Montgomery rn order to overcome the safety guard safety equipment providedto protect co hurdle, the attorney must produce evi employeesfrom injury, which, by its very Mediation Corp. dence that the removal of any item, where nature is a clear violation of public poli 1· 800-ADR-FIRM safety was a factor in its instal lation , cy."46Therefore, in cases where there is would have protected the employeefrom evidencethat the defendantfaile d to main- 48 / JANUARY1996 THE:ALABAMA LAWYER tain or repair a safety device the removal guards had not been installed.so In its oxygen control lever which, when hurdle can be overcome because failure decision, the Alabama Supreme Court depressed, al lowed the torch to cut to maintain can constitute a "construc discussed why the failure to install an metal."' This lever was designed with a tive removal." available safety guard was tantamount device which would disengage when it Recently, the court has gone even fur to lhe removal of a safety guard stating 1\>as no longer in the grip of the user." ther with its opinion in the Smith case, as follows: The defendant in Sharif pinned this described above. Ln that case, there was torch open thereby bypassing the safety evidence that the tool rest. which the The same dangers are present device designed to protect users of the when an available safety guard is court held to be a safety device, was torch.61 Based on the holding in Bailey, allowed to fall into a state of disrepair not installed as are present when the plaintiff brought suit claiming that due to several years of use." Evidence the same guard has been removed. bypassing the cut-off switch was the To say that an injury resulting from presented in the case showed that there same as failure to install and removaJ.63 was a dispute as to whether the supervi the willful and intentional removal The court disagreed, however, stating sors responsible for making the repairs of an available guard actionable but that Sharif presented a different case actua lly knew of the condition of the that an injury resulting from the than did Bailey."' The court found that tool rest.•• This fact distinguished the willful and intentional failure to the cr itical distinction between these install the same guard is not con case from Moore because in that case, two cases was that in Bailey the defen the supervisors knew of the defective travenes ... public policy." dant was provided with guards that were condition of the car door but actively This J 989 case suggested that the a part of the equipment delivered with declined to repair it. The court, howev supreme court was willing to expand the the machine and lhe defendant failed to er, held that the plaintiff was entitled to me,ming of "removal"lo factualsitua install the guards and put them in a trial and reversed the granting of sum tions in which the defendant made the place ... However, in Shari/, the court mary judgment. In doing so, the court safety device inaccessible or unusable to opined that the defendant did not fail to implied that the supervisors in charge the plaintiff.SOHowever, the court nar install a safety device: instead the court should have known of the condit ion of rowed th is interpretation in 1991.'7 held that the defendant failed to correct the tool rest and that they should have In Shari/ v. Harkins," the plaintiff an unsafe practice by his employees who repaired it• 9 employee was injured when a blow were using the torch with it wired This expansion of the definit ion of torch became entangled in his legs and open." The equipment was already in removal could prove to be invaluable to burned him." The torch had a separate place at the time of lhe bypassing in the practitioner. According to Moore and Smith, an employer can now be held liable for failing to maintain a safe ty device. The Smith case implies that since employees now have a duty to inspect and keep safety devices in a workable condition, actual knowledge of the defect may no longer be required_ As previously mentioned, the Alabama Supreme Court has given a broad defini National tion as to what may constitute a "safety Co u rt device" for the purposes of 25-5- ll(c)(2). Therefore, the practitioner Reporting shou ld be on the lookout for instances where a safety device has been main One of Alabama's oldest Court Reporting Companies tained in a state of disrepair. This could be a key to liability. Featuring: In addition to Moore and Smith, there Discovery ZX Nationwide Reporting are several other important decisions Condensed Depositions ASCII Disks addressing the removal element."' The Video Tape Recording AMJCUS First case produced by the Alabama Supreme Court on the removal question was Bailey v. Hogg." In Bailey, the 252-6205 employer of the plaintiff had purchased 24 Hour Birmingham Number a used concrete manufacturing plant 1-800-638-3917 • FAX: 252-6392 from another party." The plant was delivered to the employer with a guard BusinessOffice DeposlUon Suites 1140 First Alabama Bonk Building 1425 Financial Center that would make certain areas inaccessi Massey Building ble.'l The defendant oversaw the con Birmingham, Alabama 3S203 struction of the plant and knew that the THE ALABAMALAWYER JANUARY1996 / 49 Shari/ and the court viewed this dis bypassing a safety device was not Concl11elon tinction as critical. Thus. from Bailey encompassedwithin the word "removal", The Alabama Supreme Court has and Shari/ it appears that removal thus it must be concludedthat Gill was again made it possiblefor a practitioner means the failure lo install an avaiI able intended to overturn Shari/ and bypass· and his or her client to recover for co safety guard but not the bypassing of ing a safetydevice should now be includ· employee liability under 25-5-ll under one. ed in the definitionof the word removal. the above-mentionedexceptions in sub The Sharif decision, rendered in Therefore,the practitioner in evaluat section (c)(2). Specifically,where a safe 1990.was a year beforethe Gill case dis ing a employeecase must then consider ty device is at issue, the court's liberal cussed above." Gill involved a punch three aspects of removal.The first is the interpretations of the various defini press where the emergency stop switch actual taking away from a machine of a tions in subsection (c)(2) have made it was bypassed and the plaintiff was safety guard: either by actively taking much easier for a plaintiffto successful injured as a result. The court held that the guard away, or by failing to main ly maintain a cause of action and collect bypassinga safety device of a particular tain the safety guard as explainedin the damages.As stated above,safety device.s machine that would prevent an injury Moore and Smith cases. The second is are interpreted broadlyby the courts, so was encompassed within U1emeaning the failing to install an available safety the lawyer should constantly be on the of the word "removal". The court once guard and the third is the bypassingof a lookout for items in the workplace again said to hold otherwise would con safetyguard. If any of these three can be which could place the claim under this travene public policy. In reaching its proven then the removal hurdle can be subsection. Andwith the addition of the decision in Gill the court failed to cleared. Smith case and its implicit holding that address Shari/ and its implication that a failure to maintain a safety devicecan • TIMELY INFORMATION • OFFICE MANAGE= PS• CURRENT ISSUES • BACK TO THE BEP ICES. FAX IT • CONDUCT CHE:CK• PO INK • R A LIFE REAL Af\ ING • CLE: OPPORTl OP 10 WAYS THE AL .: YOUR JOB EASIER - SCENE• COMMIT- STATE OF LSC • ADA A .. RACY & THE JUSTICE SYSTEM ... coming• in February 1996 50 I JANUARY1996 TMEALABAMA LAWYER be grounds for liability for the purposes 27. Id, the job descriptions ol each of Ille dofen · o f subsecti on (c)(2) , plaintiffs once 28. See , e.g. Moore v. Reeves. S89 So.2d dants in this case. Namely, that each of them again can rejoice in the proposition that 173 (Ala 1991), Bean v. Craig, 5S7 So.2d had a duty to mon,101and/or investigating 1249 (Ala 1990). Sharlr v. Harkins , 564 and developing safety problems and proce a co-employee's willful conduct is So.2d 876 (Ala. 1990), Kruszewski v. Lib dures . This shows Implicitly that the eoun actionablein Alabama. • erty Mutual Ins. Co., 1995 WL 11439 (Ala. was placing an activeduty on !he part of 1995 ), Smith v. Wallace , 1995 WL 124 supelVlsors in the poslllOll 10 correct safety Endnotes (Ala. 1995). defec1s to alfirmalively main1ain safety 1. The code states: · 11personal Inj ury or 29. Bea/I, S57 So .2d at 1251 devices in a safeworking condition. Id , at •4, death to any employee results from the 30. Supra,note 28. 51 See, Balley v. Hogg, 547 So.2d 498 (Ala. willful conduct, as defined In subsection (c) 31. Id. 1989), Harris v. Gill, 585 So .2d 83 1 (Ala. herein. of any officer. director, agent, or 32. Id. 1991) , Sharl/ v Harlclns, 5&4 So .2d 876 employee of the same employer .. .the 33. Id. (Ala. 1990). employee shall have a cause of action 34. 589 So.2d 171 (Ala. 1991). 52. 547 So.2d at 500. against the person : Ala . Code § 25·5· 35. Moore, 589 So .2d at 175 53. Id. 1l (b) (1992). 36. Id. 54. Id. 2. Ala. Code 25-5-11(C)(1) {1992). 38. Moore. 589 So.2d al 175. 55. Id. 3 . Ala. Code§ 25-5-11(c)(3) (Ala 1992). 39. Id. 56. Bailey, 547 So.2d at 500. 4. Ala. Code S 25·5· 11 (c)(4) (1992). 40. Id. The falling to repair a safety guard 57. Id. 5. Ala. Code§ 25-5· 11(c)(2) (1992). being tantamOtJnt to removal Is discussed SB. Shari/ v. Harkins. 564 So .2d 876 (Al a. 6. 565 So.2d 26 (Ala 1990). Infra in the next section. 1990). 7 Id Bl 28. 41 . Id. 59. 564 So . 2d 876 (Ala. 1990). 8. 585So . 2d906(Ala 1991) 42. Id. 60. Shari 1, 5&4 So.2d at 877. 9. 585 So.2d at 907. 43. Id at 177. 61. Id. 10. Id. 44. t995 WL 124657, No. 1930608 (Ala. 1995). 62. Id. 11. 585 So. 2d 831 (Ala. 1991). 45. 589So .2d 173 (Ala. 1991). 63. Id. 12. 585 So.2d at 831 46. Id at 178·79 &4 ShBrit, 564 So.2d at 878 13. Id. 47. Id 65 Id. 14. Id. 48. Smlrh, 1995 WL 124657, at ·2. 66. Id 15. Id at 835. 49. Id 67. See Supranote 11 aboveand accompany 16. Id. SO. At page four al the opinion, the Court notes Ing texL 17. Id. 18. See Layne v. Carr, 631 So.2d 978 (Ala . 1994); Mal/Isham v. Kiker, 630 So.2d 420 (Ala. 1993). 19. Supra.note 18. 20. Mal/Isham, 630 So .2d at 421. 21. Id. 22. Id. 23. Supra, note 18. CADSO 24. Layne, 631 So.2d at 978. Computer Animation and Design Services 25. Id. 26. Id at 981. eeurtro(JJttPrcse11tntio1ts «Accidcm J(ecrc11tiolfs Glenda Q, ~,r C·ochran I&, GlendaG Cochtan Accurate,co scale t\OICISa 8.A. dogree ltomthe Univets,tyol 3-D Models SouthAla bama, an M.P A. fromt he Unlvet· &.tyot Alabama.end lhe J o degreefrom C um· benand Schoolol 1.Bw Sile IS a membOrof lt\e AlabamaTna l Lawyers AsGocia!JOnBoard ol Gova,nota. IhaAmeri- can Bar Assoc:iauon, and lhe Blmwigham Bar Association S tate of the an computer graphic.~and video. David P. Steven.s DavidP. Slovensis a cumlauds gtadua ta OI WM.hing1onand Lee university.and a 1995 graduate of Cumber· CADSOUTH SERVICES INC. land Schoolof Law He serve, as law cierkfor 529 Oakline De. Birm.ingbam, AL. 35226 Alel>amaSupreme COi.inJustice Terry L Offiu (205) 823-8103 8U11S £11..,;( 205) 823-81 71 THEALABAMA LAWYER JANUARY1996 / 51 DISCIPLINARYREPORT Reinstatements Alabama to enter an order canceling and annulling Bryant's • Clarence Christopher Clanton, a Mobilelawyer, was rein license to practice law in the State of Alabama, effectiveSep stated to the practice of law by order of the Supreme Court of tember 22, 1995. Bryant had earlier been interimly suspended Alabama,effective September 5, 1995. (Pet. No. 93-051 from the practice of la,o pursuant lo Rule 20(A),Alabama Rules of DisciplinaryProcedure. for his allegedmisappropriation of • EffectiveSeptember 18, )995, Mobileattorney LeMarcus clients' funds. (ASBNo. 95-176J Alan Malone has been reinstated to the practice of law. He had been suspended for noncompliance with the Mandatory Con tinuing Legal Education Rules. (CLENo. 95-12) Suspensions • EffectiveSeptember 15, 1995, Wilsonville attorney Orrin Disbarment Russell Ford has been suspended from the practice of law for • Mobileattorney James Borrie Newell, Jr . was disbarred by noncompliance with the Mandatory Continuing Legal Educa the Supreme Court of Alabamaby order of that court, effective tion Rulesof the AlabamaState Bar. [CLENo. 95-04] April J 0, l 995. Newell's disbarment was based upon his convic • EffectiveAugust 25, 1995, Mobileattorney William Cole tion in federal court on four counts of misapplication of bank man Gamble, Jr . has been suspended from the practice of law funds, two counts of false statements in bank records, one for noncompliance with the Mandatory Continuing Legal Edu count of a violation of the Bank Holding CompanyAct, and one cation Rules of the AlabamaState Bar. (CLENo. 95-05] count of false statements in relation to ERISA.(Rule 22(a) Pet. No. 93-061 • EffectiveAugust 25, 1995, Mobileattorney William Cole man Gamble, Jr . has been suspended from the practice of law for noncompliance with the Client Security l'und Assessment Surt'ender of License Rules of the AlabamaState Bar. [CSP No. 95-03] • Mobileattorney Joseph Talmadge Brunson surrendered his license to practice law in the State of Alabama. Pursuant to • In the July 1995 issue of The Alabama lawyer, it was an order of the Supreme Court of Alabama,said surrender was reported that Gadsden attorney ~Ulford Leon Garmon was accepted and Brunson's license to practice law was canceled ordered by the Supreme Court of Alabama to be suspended and annulled effectiveAugust l 7, 1995. (ASBNo . 95-280] from the practice of law for a period of 225 days, with automat ic reinstatement. Subsequent to the publication of this notice • Mobile attorney Thomas Earle Bryant, Jr. surrendered in The Alabama lawyer, Carmon filed suit against the Alaba his license to practice law, causing the Supreme Court of ma State Bar and other defendants in the United States District Court for the MiddleDistrict of Alabama. In conjunction with the lawsuit, Carmon requested that the federal court stay the suspension previously ordered by the 1995DIRECTORIES ARE IN! Supreme Court of Alabama. The federal court granted the stay. On October 30, 1995, the federal court entered an Order and Judgment granting defendants' motions for summary judg Members - $25 each ment and dismissing Carmon's lawsuit. Part and parcel of the federal court order was dissolution or the stay which the feder Non- Members - $40 each al court had previously entered concerning the 225-day sus pension of Garmon. On November 15, 1995, the Supreme Court of Alabama MAIL CHECK TO : entered an order suspending Garmon from the practice of law Alabama Bar Directories in the state courts of Alabama beginning December 26, l 995, and continuing until August 7, 1996. P.O. Box 4156 This notice is provided to supersede and supplement the Montgomery, Al 3610 1 notice previously issued concerning Carmon's suspension from the practice of law in the state courts of Alabama. (ASB Include street address - we ship by UPS/ Nos. 89-99(A),89-173, 89-341 & 90-775] Orders must be pre-paid On November2 , 1995, the Disciplinary Commissionof the Alabama State Bar ordered the interim suspension of Mont gomery attorney John Merrill Gray, II, pursuant to Rule 20 of the Rules of DisciplinaryProcedure. 52 / JANUARY1996 THE ALABAMALAWYER Public Reprimands substantially related and materiallyadverse to the interest of a • On November 16, 1995, Mobileattorney Fnnklin Louis former client, Rule 1.9(b). in that she used information relat Shuford, Jr. receiveda public reprimand wilh general publica ing to the representation of the former client to that client's Uon for violating Rules 1.3, l.4(a) and 5.3(a) of the Rules of disadvantageor detriment, and Rule 8.4(g), in that her con ProfessionalConduct. A client retained Shuford for an uncon duct in these matters adverselyreflected on her fitness to prac tested divorce in March 1994, and paid his fee in full. Rather tice law. IASBNo. 95-105) than being filed,the divorcedocuments were returned to a file • Birminghamattorney Hycall Brooks, III was administered cabinet That was later discovered.but when the divorce was a public reprimand, without general publication,on September filed, some necessary documents were omitted. In December 22, 1995.A formal bar complaint was filedagainst Brooksby a 1994, the client demanded that the divorce be finalizedsince former employee.During the investigationof that complaint,it the husband was not making any child support payments. was discoveredthat beginning in the summer of 1993, Brooks Finally,on January 26, 1995, the divorce decree was obtained. established a trust account incidental to his law practice. A Shuford blamed the delay on his lack of an experiencedsecre reviewof trust account recordsd isclosedthat there were a num tary, and "severalother things that proceededto go wrong". ber of checks written on Brooks' trust account by him which • On September 22, 1995, Millbrookattorney Neva Claire were not payableto clients or for client purposes,a violation of Conwaywas issueda publicreprimand, without generalpub lica Rule l.15(a),Alabama Rules of ProfessionalConduct tion, by the AlabamaStale Bar.Conway had preparedan antinup The investigation further disclosed that Brooks improperly tial agreementfor a husbandand wifeprior to their marriage.Less commingledhis personal funds with those of his clients in said lhan a yearafter Conwayprovided these services,the wifefiled for trust account, thereby failing to maintain a separate trust a divorceby and through Conwayas her counsel of record.The account segregating the property of his clients from his own husbandthen fileda complaint againstConway with the Alabama property. Brooks was also unable to produce any and all State Bar.In respondingto the complaint Conwayadmitted that records relating to this trust account in response to the inves she preparedthe anti-nuptialagreement in question,and that she tigation of the bar complaint. The Disciplinary Commission thereafter filed the divorceon behalfof the wife. found that Brooks' actions, in addition to violating Rule The Disciplinary Commission determ ined that Conway's 1.15(a), also violated Rule 8.4(g), for having engaged in con actions violated Rule 1.9, AlabamaRules of ProfessionalCon duct thal adversely reflected on his fitness to practice law. duct, in that she represented a client in a matter which was IASBNo. 94-2021 • Training Seminars Training workshops designed to qualify you to mediate business, family , & community disputes. D Workshops Offered Throughou t Alabama D CLE Approved o Customized u1-House Programs Available D Call (800) ADR-FIRM for a Free Brochure THEAI.ABAMALAWYER JANUARY1996 / 53 IN THE SUPREME COURT OF ALABAMA AUGUST 30, 1995 ORDER IT IS ORDEREDthat Rule JV,Rules Governing Admission to the AlabamaState Bar, be amendedto read as follows: "RuleIV. PERSONS ENTITLED TO ADMJSSION BY EXAMJNATION "A.General Requirements.. Any person who is at least nineteen (19) years of age, who has compliedwith the requirementsof Rule l. and whosecharacter and fitness have been approvedby the Committeeon Characterand Fitness, is entitled to be examinedfor admissionto the Alabama State Bar, at any examinationheld as pres<:ribedby those rules, upon proof that he or she has compliedwith the educationrequire ment set out in this rule. "B.Education Requirements. "(l)Proof of PrelegalEducat ion. "(a)Anapplicant who did not graduate from a lawschool that wason the approvedlist of the AmericanBar Association(A.B.A.) or the Associationof AmericanLaw Schoo ls at the time of the applicant'sgraduation shall give proof that he or she has mel the followingprelegal education requ irements: "Thal the applicant has caused to be filed with the secrelaryof the Boordof Commissionersof the AlabamaSlate Bar a certifiedcopy of a diplomaor certificateshow ing (i) that the applicanthas receiveda baccalaureatedegree from a university or collegethat, al the time of the applicant'sgraduation, appeared on the approvedlist of any standard accreditingagency or association in the variousstates. or which is acceptedby the accreditingagency as meeting substantiallythe same standards required for appearingon the approvedI i.st of the agency,and (ii) that the degree was receivedbefore the applicant entered lawschool. "(b)An applicant who has graduated from a law school that was on the approvedlist of the AmericanBar Associationof American LawSchools at the time of the applicant's graduationshall not be required to give proof that he or she has met the prelegal educationrequirements set out in (a), unless such proofIs requiredby the Committeeon Characterai1d Fitness. "(2)Proofof LegalEducation. "Anapplicant shall make proofof legalstudy by filingwith the secretaryof the Boardof Commissionersof the Alabama State Bar a certificateor certificatesfrom the dean or deans of one or more law schools,from which it shall appear that lhe applicanthas completedlegal study conformingto and fulfillingthe followingrequirements: "(a)Thatthe applicanthas pursued and satisfactorilycompleted, as a resident student in a law school or lawschools , a course of law studies lhat extendedfor at least three (3) academicyears of at least thirty (30) weeks each; that the applicanthas graduatedfrom such a lawschool; and that at the time of the applicant's graduation the school from which the applicantgraduated wa., approved by the AmericanBar Associationor the Associationof AmericanLaw Schools:or "(b)That Lheapplicant has pursued and satisfactorilycompleted as a resident student al BirminghamSchool o f t.,w. Jones School of Lawof Faulkner University,or MilesCollege of Law,a course of law studies lrult extendedfor at least four (4) academicyears of al least thirty (30) weeks each, and is a graduate of that law school, providedthat as of the date of the applicant'sgraduation the schoolhas been continuouslylocated and has remained in continu ous operation in the county in which it was operatingon August30, 1995;or "(c)Thatthe applicant has pursued and satisfactorilycompleted as a resident student at a law school locatedoutside the state of Alabamathat. as of the date of the applicant'sgraduation, had not been approvedby the AmericanBar Associationor the Associationof AmericanLaw Schools, a course of lawstudies that extendedfor at least four (4) academicyears of at least thirty (30) weekseach, and is a graduate of that law school: that the applicant has been admitted to the practice of law beforethe court of highest jurisdiction in the state or other jurisdictionwherein that lawschool is located;that the applicant has, after the applicant'sadmission to practice lawlrefore the court of highest jurisdiction in that stale or other jurisdiction,been continuouslymgaged in the active practice of lawfor al least five(5) years; and that the applicant is a member in good standingof the bar of that court of highest Juris diction;provided, however, that an applicant may qualifyunder this subsection (c) only if the state or other juris diction in which is located the law school from which the applicant graduated extends comity to graduates of Birmingham Schoolof Law.Jones Schoolof Lawof FaulknerUniversity, and MilesCollege of Lawwho seek admis sion the bar of that state or jurisdiction,and graduatesof those schoolsare permitted to seek admissionto lhe bar of that state or jurisdictionon terms and conditionsno more onerous than those imposedon the applicant by this subsection(c). ·c.Limitation on Examinations. The numberof times an applicantmay be examinedfor admissionto the AlabamaState Bar shall be unlimited. "(Amendedeffective April 28 , 1993;January 6. 1994;January I, 1996)." tT rsFURTHER ORDERED that this amendmentbe effectiveJanuary 1, 1996. Hornsby,C . J., and Maddox,Almon. Houston , Kennedy,Ingram, Cook, and Butts, JJ., concur. 54 /JANUARY1996 THE ALABAMALA WYER RECENTDECISIONS By WILBURG. SILBERMAN ment of tax applies on voluntary partial becoming part of the bankruptcy estate. RECENT BANKRUPTCY payments, but that IRCSection 6402(a), Judge Stilson said: "State law cannot, DECISIONS allowingdiscretion to the IRS, controls by words alone, create a substantive application of money coming to the restriction on !RA's that Congress and Eleventh Circuit discusses application government because of over-payment of the parties did not choose to place of tax refunds a particular liability. The court distin there." Neverthe less, he held that In re Ryan, 64 F.3d 1516 (11th Cir. guished A&B Heating, 823 l'.2d 462, improper portions of §19-3-1 could be Sept. 26, 1995).Ryan owed income wes 463 (11th Cir. 1987) by stating that eliminated, leaving intact the wording for 1986, 1987,1988 and 1989.The 1990 A&B Heating did not apply to over-pay which providesfor the allowance of the tax return indicated a refund, and con ment of wes. claim of exemption. He reasoned that taineda requestthat the refundbe applied Comment: Ryan is an Alabama case Alabamahad "opted out" of the federal to the 1989tax liability. The IRS applied emanating from the Southern District. exemptions provided in §522(b), and the refund to 1986. Later, after filing Conceivably, lhe case could have gone that even though the Alabama statute Chapter 7, the Ryansbrought an adver either way. For anyone concerned with conflicts with §54l(c)(2) of the Bank sary proceedingagainst Lhegovernment application of refunds, l suggest that ruptcy Code, "AlabamaCode 19-3-l(b) asking, because of the lapse of time, for because of the various nuances in the contains the material components to discharge of taxes prior to 1989, and a opinion, the case be reviewedcarefu lly. create a free-standing exemption from determinalion that the 1989 tax liability all debt collection with the invalid lan had been paid. Both the bankruptcy and Confilctin state - Judge MichaelStilson guage deleted." Thus, he allowed the district courts agreedwith lhe Ryans, but rules that IRAin Alabamais e.,empt exemptionfor LheI RAproceeds. in reversing. the Eleventh Circuit made In re Harless, 187 B.R. 719, Bktcy, Comment: Judge Murphy,in the con some interesting observations. N.D. Ala., Western Division (Sept. 25, cluding portion of her opinion in Slepi The Court stated that the administra 1995). On August JS, 1994. Judge Mar an, opined that the IRAhad no alienation tive requirement of requesting a refund garet Mahoneyru led that an IRAcould restrictions,and did not qualifyas e.xempt was a condition precedent for the court nol qualify as exempt under Alabama under AlabamaCode 19-3-l(b)(l). Query to entertain jurisdiction.bul that the fil Code Section 19-3-l(b), nor as a spend - Will the different holdings in the ing of the 1990 ta.xreturn containing a thrift trust to be out or the bankruptcy Southern and Norlhern districts cause refund request, which described the estate under Section 541 of the Bank forum shopping until there is an appel nature of the claim, was sufficientcom ruptcy Code as it did not contain lan late court ruling? or course, the Middle pliance. The court deferreddetermining guage of an anti-alienation nature. In re District could follow its name, and take whether a turnover order under Section Slepian, 170 B.R. 712 (Bktcy S.D. Ala. the middle course. 542 was an appropriate method of 1994).In Harless,J udge Stilson agreed retrieving tax payments. More impor that an IRAcou ld not be excludedfrom Lenders beware! Post-petition interest tantly, in a de novo ruling. it held that lhe bankrupt estate under Bankruptcy denied pre-confirmation to over the voluntary payment ru le allowing Code Section 542(c)(2). but that the secured lender taxpayersto elect the applicalion or pay- wording in Alabama Code §19-3-l(b) In re Della Resources. 54 F.3d 722 allows exemptionof the proceeds. First, (11th Cir. June, 1995). Orix, an over Judge Sti lson stated that a conflict secured creditor, sought adequate pro Wilbur O. Silberman existed between the Alabama statute tection paymentof post-petition interest. Wilbur G S!!bQflTl8n,cl and 26 U.S.C. 408(a) (the rollover IRA], In an opinion which probablywill agitate the Blffflinghamfi rm of as the Alabama statute did not contain Lhe financial community, the Eleventh Gordon.Silbetman. Wigg.-.s& Childs. al4 the necessaryres trictions on transfer to Circuit held that only interest in lhe tet1de THE ALABAMALAWYER JANUARYJ996 1 55 A BIG DEAL FOR SMALL LAW FIRMS THROUGH THE ALABAMA STATE BAR! Unlimited Online Alabama State Research for a Low, Flat Monthly Fee. LEXIS MVP When it comes to sta te law research ...close the books. Stop paying outrageous fees for other c01nputerized research. With LEXIS MVP, you pay one low flat month ly fee. No /ff' minimum subscription m period. No sign-up charge. No cancellat ion penalty. You get unlimited online access to current Alabama case law, JJ statutes, attorney general opinions, bill and regula tion tracking, and more. And unlike books and most CD-ROMs, your online research will . J.J always be current. LEXISMVP .,L;2' ""·"""= is available through ~~~~~ the Alabama State Bar. r1:7. Call for details. C' · 800-356-6548 LEXISMVP The Most Valuable Part of ALABAMA ST'I\ 'TE BAR Alkfor your )l\"P spe cialisr LEXIS-for small law finns n. •All f'~ mch~ ,1pp1ic.1blt'tubtcnp1- ,..... J'ri,y quocnfl'!ChMI.ClfflC')' i:n IN' firm. Nott>.IIU~ .wd ionll 1.1u~not incluJC"d. Somt m rrict ior. .apply r~~ 11>dl.uw- UlXISnnd l\'f.XtS•ft! ~i,.t~ tr,,d~r\."'lalltttd el$'\~ ""~lo 11'1(.,Uf.N undC"rllot'l"Ml' 11w INFOIL\ IATlON ARRAYloflo h III tDJmurk di Rt,r,,;,I0-·ln Pfflfl"1""" Inc.. ~ 1.1mlf"f I~"' · Cll99~Lf,XIS,.O,:E>;tS. .adhit'lonol R(t(I IJft\ief Inc. AU,wi1c. ~ ALOIOS 56 /JANUARY1996 THE ALABAMALA WYER Recent Decisions the right of set-off. The reasoning was and loan closing without disclosure by Continuedfrom page 55 that the hold was only temporary for the debtor. The bankruptcy court stated purposes of preventing a withdrawal the standard to be that of reasonable Comment: Certiorari has been denied while the creditor was attempting to reliance. After affirmance by the district by the U.S. Supreme Court Probably, it perfect its set-off. The ruling was bot court, the appellate court reversed and will take connict in the circuits lo have tomed on the theory that a bank remanded. The Eleventh Circuit held the ruling examined by the Supreme account is a debt from the bank to the lhat although reliance on debtor's mis Court, but please read the case lo reach depositor, and that Code Section 542(b) representations must be shown, only your own conclusions as to the holding. permits an offset under Section 553. justifiable reliance must be shown. The The reader is also referred to the Geor The court rejected the argument that court quoted several authorities in gia case, opinion by Judge Holmer Drake §553 contained an exception as to defining the term. first stating that it is of M4 Enterprises,183 B.R. 981, in which §§362and 363. slating that such excep a compromise between the standards or Judge Drake extended Delta Resources tion applied only to an actua l set-off, rigid reasonableness,and lenient actual to include cash collateral. and that an administrative freeze was reliance; as §523(a)(2)(B)mandates rea temporary only, for protection of the sonable reliance, it is obvious such U.S. Supreme Court declares valid an bank's right to set-off. strictness is not required under "administrativefreeze" on bank account §523(a)(2)(AJwhich does not contain of debtor Section 523(a)(2)(A) "Reliance by the words "reasonablyrelied." Citizens Bank of Maryland v. Creditor" defined by Eleventh Circuit Comment: It would appear in deter Strumpf, 1995 U.S. Lexis 7408; 64 In re Edwin Leo Vann, 67 P.3d 277, mining reliance under §523(a)(2)(Al,a U.S.L.W. 4001 (U.S. S.Ct., Oct. 11, 28 B.C.D. 23 (lllh Cir. Oct. 19, 1995). comprehensive review of lhe entire 1995). Without a dissent, in an opinion This case involves exception to dis transaction is necessary to obtain a sub by Justice Scalia, the high court stated charge of debl allegedlyarising through jective construction of the reliance of that a bank did not violate the automat misrepresentation of the debtor. The the creditor on the facts upon which ic stay in placing a hold on the debtor's debtor's financial condition had deterio the matter was consummated. • bank account, which hold was equal to rated between the initial negotiation Caution! Attorneys in Active Why6,000 Practice in Alabama Lawyersuse Be sure that you have the required occupational license in your possession! Chap7 •• 13 If you are actively practicing or anticipate prac * Best TypcSet look in Bonkn.1ptcyForms. ticing law in Alabama between October 1, 1995 * fastest, friendlJest software and September 30, 1996, PLEASE BE SURE * The only sofrwore wuh built-in llllelfigent Help. THAT YOU HAVE THE REQUIRED OCCU * Automatic Pl3n Drafting. 54 custom plans to satisfy all districts. PATIONAL LICENSE. Filing check-lists, clienr questionnaire. The dual invoice which was mailed in mid-Sep * * Marrix-on-dL~kversion:; for all courts tember provided you with the option of paying spe that wke them. cial membership dues (if you were not in active DEMODISK • REFERENCES practice in Alabama) or buying the required occu MONEYBACK GUARANTEE pational license to practice (if you were in active practice in Alabama) on this one invoice. CALL800 BEST-7-13 Direct any questions to: &CHAP7**13 Christie Freeman,Membership Services Director, at 1-800-354-6154 (in-state WATS) or (334)269- SpecialtySoftware 1515 immediately! 1111S. Woodward • Roya l Oak, Mich.48067 THEALABAMA LAWYER JANUARY1996 / 57 EdwardM . Friend, Jr. Ed l'riend left his indelible mark on above stated is a summary that falls far this world. short of a deserved tribute to this mag ernard Shaw defineda gentleman as Untold thousands now, and will, enjoy nanimity, will always be a part of the Bone who refuses to take out more a better lifebecause of the seedsplanted in thoughts of this ExecutiveCommittee of than he receives.ln the death of Ceneral the leg.ii,civic and cultural life of which the Birmingham Bar Association as both Ed\vardflt Friend, Jr., we mourn the he was a part. Misadministrali\,e abiliLies an encouragement and an inspiration to passing of a Lrue genllemaJ>.After 83 haveinured to the benefit of this bar that a more dedicatedservice to our systemo f years of fruitful contribution to life on he so dearly loved,the State,the City,the justice.As one of his friendsonce wrote; this earth, God took General Friend to a University of AlabamaSchool of Law,the AILthings of value in excellence heavenlyreward. United States Arm:,, Reserve, and the in the world depend for their exis Ed Friend\1o 1as no ordjnaryn,an, nor AlabamaNational Guard. He is a former tence and continuatio n upon the ,vas his life an ordinary Jire. He drank president of this as.sociationand U,e Uni capacity, labor and perseveranceof deeply from U1ewell spring of his cre versityof AlabamaSchoo l of LawFounda a very few people. ation and gavegenerously of his talentsto tion . the recipie·nt of the Pipes General Friend was one of that "hand· those who walkedthe path with him. The Outstanding Dfstinguished Alumnus ful'"of people. fruits of his living are indicative of the Award from the Uni:versityof Alabama, Ceneral Friend left behind a devoted depths of the roots nurtured from a spir the Monorary Doctor of Law degrees ,vife who v.iasan inspiration in her own itual soil. from the University of Alabama and right, a son who bears his name, a How do we know him? Lel us but Birmingham- Soulhern College, and daughter. three grandchildren, and an count the ways: lawyer. statesman. Outstanding Lawyerof the YearAward of innumerable host of colleagues and teacher. soldier, scholar, son. husband, the Birmingham Bar Association. The friends,-.iho mourn his passing. father, and friend. Regardlessof the role, organizationsof which he servedas pres Whereas, il is weU that wepause and he was a man - yeah , a gentle man.God ident are far too numerous to detail here. reflect on this life which was so impor rest his soul. Need we on ly note that the heritage Ed tant to our own, mindful that suc h ~Ian walks the earth for a little while, l'riend leavesthe members of the Birm reflectioncan do no less than contribute and passes from human sight; cities are ingham Sar Associationis a responsibili to a better tomorrow for each of us. built, and crumble to a ,;,•indstre,vn ty to fill the void left by his passing. -J. Frederic Ing.ram dust; bul thought once born and a The precious memories of the life and President, 8iro1ingham expressedlives on and on into eternity. achievement\ of Ed Friend as herein• BarAssociation William Inge Hill awardedthe Trustee's Award for Outstanding of lhe Blue & Gray ~'oolba.11Classic in Student al the Universityof Alabamafor Montgomery).He was the first chaimianof lliam Inge that year. He was al:soa member of Tau the MontgomeryPl anning Commission. w:Hill was born KappaAlpha and Phi AlphaDelta fratemi His great-grandfather, William B. Inge, in t-1ontgomery, ties. He receivedan award from the Univer was the first student who enrolled at the Alabamaon Decem sity of Alabamafor the highest scholastic Universityof Alabama in 1831, and was ber 11, 1911. He averagein the graduating class of 1931. 1n also a memberof the 6rst graduatingclass. died in Montgomery law school, his grades were all A's excepl He wasactive in all activitiesfor the bet on March24, 1995. forone Bin a courseentit led "sales." terment of the Universityof Alabama. lfe had a long and He was president of the Montgomery He is survivedby his wido~\the former distinguishedcareer County Bar Associationi n 1942, prior to llouisePartlow, B.S., University of Alabama as an attorney. He first attended the Uni his entry into service of the UnitedStates 1947,and two children.William I nge HiU, versityof Alabamaat the age of 14in Jan• Navyin W.W.ll. Followinghis service in Jr. and Lee HIii Beck, two stepchildren, uary 1926,and receiveda B.A.Degree at the Navyas a commissionedofficer . he was LeRoyMcEntire and Nancy M. Bradford, the age of 17. He receiveda Bachelorof separated as a lieutecnantcommander in and severalgrandch ildren. Lawsdegree in the spring of 1931 at U,e 1945and returned to the practice of law Ouring his life, WilliamInge Hill made age of 19 and commencedthe practice of in Montgomery. important and substantial contributions law in Montgomerywith his late brother, In 1973 and 1974, he was president of to and for the Universityof Alabama. Thomas B. Hill, Jr. the Universityof AlabamaAlumni Associa In undergraduateschool, he wasawarded tion. His other activitiesincluded serving -Ralph A. Praoc.o Phi Beta Kappaand membership in the as presidentof the MontgomeryLions Club Partner, HUI,Hill , Carter, Omicron Delta Kappa. In 1929, he was and the Blue & Cray Association(SPOnsor FTllllc.o,Cole & Black 58 /JANUARY1996 THEALABAMA LI\WYER NicholasS . McGowin time that Mr. McCowinwas president of Club of Mobile;Pembroke College Foun the Mobile Bar Association (1974) and dation;and Universil:)Iof AlabamaNational 1ere.1s, chairman of the Real Property,Probate & AlumniAssociation. w:NicholasStall Trust Law Section of the AlabamaState Not only was Mr. McCowinim'Olved in worth McGowin. Bar. He \\'a.S a memberof the An1erican his professionand his community, he is who died on th• and AlabamaState bar a.sociations.Those fondlyremembered as an avid tennis play 19th day of May who workedwith Mr. McCowinor who in er and spectatorall of his life. Untilillness 1995, practiced law any way \\!ereassociated with him in the forcedhim to retirefrom activeparticipa wilh honor and practiceor law knowthat his integrityand tion, he wasamong the best in Mobile,and integrity for over character have been unsurpa,sed among perhapsthe best in his age group. 50 years:and practitionersin Alabama,and that his rep Mr. McCowinleft to survive him his Whereas. Mr. Mccowin was highly utation is one lo which we each should lovelyw ife, ElizabethSmith: a daughter. regarded for his service not only as a aspire. ElizabethBrittain McGowin: a son. Peter la,1/)'erbut as a memberof this con,muni· Mr. McCowinwas Swedish Consul of H. Mc()owin;and one granddaughter. 1:)1to which he gaveso much in time, tal Mobilefor almost40 years and was induct Those who knew Nickwill alwaysre<:nll ent and financialsupport; and ed by the SwedishCrown into the Royal his kind smile.and his compassionateand Wheteas,it is the desire of the Mobile Order or Vasa,the Swedishequivalent of gentle spiril He will be sadly missed not Bar Association,in meeting duly assem• knighthood. only by his family and lhis community, bled, to honor thememory of Mr.McGowin. In addition to being a highly regarded but also by his many friends and fellow Now,therefore. be it knownthat Nicholas lawyer,Mr. McCowinserved his commu practitioners in the honorable profession S. MtGowinwas born in Chapman,Alahama nity as a leader of many organizations, of the law, a professionwhich he revered on May17. 1912. lie waseducated at the serving as president or chairman of the and respected, and by which he was University of Alabamaand received his board of the following:the MobileSym respected. undergraduatedegree in 1933,a member phony;the MobileChamber Music Sociel:)I -Allon R. Brown, Jr. of Phi BetaKappa. Mr. McCowin read inter (co-founder);the MobilePublic Library; Pnsident, MobileBar Association national law at PembrokeCo llegein Oxford Lyman Ward Military Academy (Camp from 1933-1934and rroeh"d his lawdegree Hill, Alabama); the E:nglish Speaking from HarvardLaw School in 1937.He was Union;and the AlabamaPulbright Schol admittedw the AlabamaState Barin 1937 arship Committee.Re also served on the and to the Penns)llv.miaState Bar in 1939. advisory board of the Auburn University Mr. McCowinpracticed law in Greenville, Centerfor the Arts and Humanities;as an Please Help Us Alabama from 1937 until 1939. and in Honorary Fellow of t.he Mobile College The .4/abomaL,owger " Memorials" Philadelphia with the firm of Drinker. (now University or Mobile);on the Board sectionis designed lo providemembers Biddle & Realh from 1939 to 1941. He of Directors of Mobile United: on the of the bar with in(onnationabout the workedwith the British PurchasingCom Board of Directors(founding member) of death of their coll~ues . The Alabama missionin Washington,D.C. from 1941 lo the Bank of Mobile:as a member of the State Bar and the EditorialBoard have 1942,while awaitinghis commi.sion as a advisoryboard or the AmericanSpart Art no \,1ay of knowing when one of our lieutenanl in the United St.itesNavy. Museum and Archives;on the Board of membenis deceasedunless we are notj .. fled.P lease take the Limeto provideus He served his country during World Directorsof the MobileCil:)I Museum; on with lhat information.J( )'Ou .,.,,ishto War II a combat intelligence o!ficer the BoardofTrustees of SpringhillCo llege as writesomething about the individual's ,vith an amphibiousreconnaissance air· Library; and on the Board of Directors lifeand professionalaccomplishments for plane squadron in the South Pacific.He (foundingmember) of the MobileMental publicationin IllelllllgaZine, plea.le limit continued to serve his country as a lieu I lealthA.sociation. yourcomments to 250 \,rordsand send tenant commander in the United States In additionto positionsof leadershipin us a pictureif pos.liible.\Ve reseNe the NavalReserve from 1945 to 1954. the foregoingorganizations. Mr. McGowin right to edit all informationsubmitted Mr. McGowinbegan the practice of law also Jent his financialsupport and mem for the "Memorials"section. Pleasesend in Mobile,Alabama with the firm of Ann ber.;hipto many groups,including the fol notificationinformation to the foll01,ing brecht, Inge. Twitty & Jackson, and lowing:Mobile Opera; Mobile Community addres,i: remainedthere from 1945 to 1956. Prior Foundation;Alabama Shakespeare Festi MargaretL MurphY, to his early retirement from law practice ,•al; NavalAviation Museum Foundation; Tlte AlabomaLawyer, in 1991,he and the HonorableJ. Edward Navy League; Fine Arts Museum of the P.O. Box4156, Thornton practiced law together for South; InternationalTennis Mallof Fame; Montgomery. AL 36101 approximately35 years. lt wasduring this Harvard Law School Alumni; Harvard THE ALABAMALAWYER JANUARY1996 I 59 ArthurErnest Parker bar, wasappainted lo defend four individ his passing may deriveconso lation for the uals who had been indicted as result of a thought that; Arthur Ernest Parkerwas calledby his crime spree that spread from one corner They are not dead who Jive Milkerto his eternal homeon July 26, 1995. of this city to another. Arthur was like a In hearts they leavebehind Arthur Parker graduated from Howard runner in the blocks. He could not wait In those whom they haveb lessed College, the Universityof AlabamaSchoo l for the starting gun. He prevailed upan They shall live a life again. of Law, servedin the UnitedStates Army the Court to try his client first. Andtry They shall live through the years during WorldWar II, and was a member he did. Unfortunately for his client, the Eternal life,a nd grow o( the Birmiogham&r Association, the ,veightof Lheevidence soon overcamethe Each day more beautiful, AlaoomaState Bar, the Sigma DeltaK.ippa enthusiasm with which he was defended. LegalFraternity and the AlabamaCrim i Fortunately.the spelJ was not broken for Ast ime declares their good, nal Defensel.aW)•ers' Associat ion. Arthur the then-young Arthur Parker. From lhat forgets the rest, Parkerwas ho nored by his colleagueswho moment on, he devoted his life to repre And proves their in1mortality. awardedhim the RoderickBeddow Award . senting those ,vho were called to account Whereas, precious memories of the life ll is with co-mingledemolions of sad before the bar of justice. and achievementsof Arthur Earnest Park ness and of pride that we. the members of Whilethe memories of the lifeand er will alwaysbe a part of the thoughts of the Birmingham Bar Association,adopt achievementsof Arthur Parkerwill the memberso f the Bim,inghamBar Asso this memorial resolution to Arthur Ernest always be a part of the thoughts of those ciationand both an encouragement and Parker.Those w ho had the fortune to prac who worked with him, little purpose can an inspiration to more dedicatedservice ticewi th Arthur Parkerwere privilegedi n be servedb y here cataloging the honors, to the professionwe follow;a nd that association.His devotionlo the Jaw, tho highlights and the achievementsof Whereas, it is well that we pause and to our systemof justice and lo the defense the life produced by Arthur Parker.That reflect on this lifewhich wasso impartant of those who sought his service were an role can best be served by the memories to our own, mindful that such reflection inspiration to the members of this asso of those whom he served. Here we seek to can do no Jess than contribute to a better ciation. While saddenedby the loss of the capture a nicker of the light that washis tomorrow for each of us; and physicalpresence of one of our number life, for in that light we find the true suc That copies of this resolution be fur who was belovedby us all, we are proud cesstha t was Arthur Parker. Here wesim nished to his widow, Marilyn Jackson to havebee n deleg;,tedthesweet and cov ply recallthat the falth with which he lived P.irker, his son. Kim Parker,and his son. eted privilegeto t,y to expresson theprint carried Arthur throu,ghlife and to death Daniel Parker, as our expression to them ed page, the tribute of love and affection without fear or worry. of our deepest sympathy. which each of us feels in his heart for our To thosehe leftbehind, a Joyaland dm'Ot · departed friend and colleague. edwife , two sons ever Joyaland closely -J . Frederic Ingram Forty-fiveyears ago , ArthurParker , along bound by the bonds of filialaffect ion, and Pres ident, Birmingham with I l newlyadmitt ed members lo the the innumerablehost of friendswho mourn Bar Association Ronald Alexander Johnston , Jr. Montgomery Admitted: September 30. 1994 David Evan Veal Died: October 2, 1995 LawrenceE . Creer Binningham Binningham Admitted: 1965 Admilled: 1950 Died: April 15, 1995 Vaughan Hill Robison Died: October 27. 1995 Montgomery Admitted: 1938 Michael Elias Zoghby Died: October 20, 1995 Alice Manry Meadows Mobile Mobile Admitted: 1957 Admilled: 1951 Died: September 7. 1995 Alvin Buster Foshee Died: October 29, 1995 Clanton Admitted: 1933 Died: October l , 1995 60 /JANUARY19 96 THE ALABAMALAWYER • M·E·M·O·R·l·A·L·S • Joseph Clewis Trucks that came his way. Weare better off for rose bush, whQSewithered blossoms ClewisTrucks' havingbeen a part or this flowedupon the autumn bree1.e,the his universallyliked and highly ~pect association. sweetassurance of anotherspring Ted memberof the BirminghamBar In these troubledtimes whenwe liveso lime,will He refusethe wordsof hope Associationwas called bY his Makerto his fastaJ)d furiously, we giveli!tle thought to the sons of men when the frost of eternal home on July 19, 1995after a or heed to the perplexingmysteries of life wintercomes? If matter'smultitude longand successfulpractice of Llw,replete and death. II is onlywhen we are sudden of formscan neverdie, will the Spirit with unusualhonors. lystricken by the departurefrom our midst of mansuffer annihilation when it is Todaywe pause for• momentto mourn of one so near and dear to us that we pause paida briefvisit likea royalguest, to the passingof our brother in the profes. to think, and ask the question:"What is this renementof clay/ No, I am as sion. Whena great life,like a great tree, life,and what is this thing calleddeath?" sure there is aiiotherlife as I am that fallsinto the dust fromwhence it came, Aswe blindlyseek an answerto the seem I livetoday. 1 only then can its realstatue be truly mea ingly unsolvablequestion , we derivemuch Whereas1 it is \\ell that we pause and sured.Clewis Trucks was a devoteeto a comfortfrom the thoughts and observa· reflect on this lifewhich was so important lifethat kept valuesin their proper per tions of the GreatCommoner, William to our own, mindful that such reflection specti,•e. His formulafor a balancedlife JenningsBryant, in one of his lectures can do no less than contribute to a better consistedof work, play,Jove and religion. on immortalicy: tomorrowfor each of us; and, Byhis dailydevotion in the ordinary rou I/ the Fatherdesigns to touch,with Whereas,this resolution is offeredas a tine of livinghe sustainedthe moral and devinepower, the coldand pulsele.ss recordof our admirationand affectionfor culturalvalues of his community,the pro heartof the buriedacorn to makeit ClewisTrucks and of our condolencesto fessionwe serv~and his family.He gave burst forthfrom hi.s prison walls, will his "'ife, his son and the membersof his to everyclient and causeall the vigor and Heleave neglected in the earth or the family. effortallowed him to provide.He indus soul of man. madein the imageor -J. FTl?dericIngram triallyapplied himself to the opportuniUes his Creator?If he stoopsto givethe President, BirminghamBar Association Irvine CraigPorter, Jr . produced bYthe life of Irvine C. Porter. But the grandest thing, next to the Otherswill do so. Herewe seekto capture radiancethat nowsfrom the Almighty's he BirminghamBar Association lost a flickerof the light that washis life.A life throne.is the light of a nobleand ~,uti Tone of its most distinguished members that \\'asan inspirationto those of us \Vho ful life, wrapping itself in benediction through the death of Irvine Craig Porter, knewand workedwith him; in the life he round the destiniesof men and finding Jr. on May28. 1995at the age of S5. It is shared; in the life he instilledin his loved its home at last in the blessedbosom of fitUngthat the ExecutiveCommittee of the ones; and in the life livedwith those with theeverlasting Cod Thal manis ~l who BinninghamBar Association. b)' resolution, whomhe camein contacLThe words that hasthe strength to serve,the patienceto mourn the passingof this dear brother. were originally dedicated to that great suffer,and who, seekingnot to conquer lrvine C. Porterwas born in Flore.nee, Southerner. HenryW. Crady,are equally the world, mastershimself and devotes Alabama;graduated from Phillips High applicableto the life of IrvineC. Porter. his life in un,;elfishservice to his fel School in Binningham,Alabama; gradu I have seen the light that gleamedat lowman. ated fromFlorence State Teacher's College; midnight from the headlight of some Irvine C. Porter left behind a devoted and graduated from Lhe University of giant locomotive rushing onward wife. four children and an innumerable AlabamaSchool of Law.He was a mem through the darkness, heedless of host or colleaguesand friendswho mourn ber of the Birmingham Bar Association, opposition,fearless of danger,-,and l his passing. the ALlbamaState Bar and the American thought it was grand. l have seen the Whereas,it i.s well that we pause and Bar Association. He rendered long and light come over the eastern hills of reflecton this life whichwas so important devotedservice to the City of Homewood glory, driving the lazy darkness like to our own, mindful that such reflection and Cityof Irondaleas their cityattomey. mist before a seaborne gale until leaf can do no less than contribute to a better He was universallyrecogniud as one or and tree and blade of grass glistened tomorrowfor each of us; and the most outstanding authorities on cicy and glitteredin the myriaddiamonds of Whereas,this Resolutionis offeredas a governmentin this state. the morning'sray,-and I thought it was recordof our admirationand affectionfor IrvineC. Porterwas an outstandingmem grand. I have seen the light and leaped lrvTneCraig Porter, Jr. and of our condo ber and spokesmanof the National Rifle and flashedat midnightafore the storm lencesto his wife,his sons and daughters Association,serving as its presidentand as sweptsky, mid chaotic clouds and howl• and the members of his family. a lifetimemember of itsExecutive Council. ing windstll cloudsand darknessin tbe LitUepurpose can be served by here shadow-hauntedearth na.~hedinto noon -J . FredericIngram catalogingthe honors and achievements daysplendor ,-a nd l knew it wasgrand. Ptesiden~ BinningbamBar Association THE AL<\BAMALAWYER JANUARY1996 I 61 ALABAMASTATE BAR SECTIONMEMBERSHIP APPLICATION Tojoin one or more sections, completethis form and attach separate checks payableto each section you wish to join. Name______Firm or Agency______OfficeAddress------ OfficeLocation ______ OfficeT elephone Number Section Annual Dues D AdministrativeLaw ...... $20 D Bankruptcyand CommercialLaw ...... $20 D BusinessTorts and Antitrust Law...... $15 D CommunicationsLaw ...... $15 D CorporateCounsel ...... $30 D Corporation,Banking and BusinessLaw ...... $10 D Criminal Law...... $10 0 DisabilitiesLaw ...... $20 0 EnvironmentalLaw ...... $20 0 Family Law...... $30 0 Health Law...... $15 0 International Law ...... $15 0 Laborand EmploymentLaw ...... if practicing less than 5 years-$10 if practicing 5 or more years-$30 0 Litigation...... $15 D Oil, Gas and MineralLaw ...... $15 D Professional Economicsand TechnologyLaw ...... $25 D Real Property, Probate and Trust Law...... $10 D Taxation...... $15 0 Workers'Compensation Law ...... $20 D Young Lawyers'...... 0 TOTAL __ Remember: Attach a separate check for each section. Mailto: Sections, AlabamaState Bar, P.O.Box 671 , Montgomery,AL 36101 62 / JANUARY1996 THE ALABAMALAW YER CLASSIFIED NOTICES RATES : Members: 2 free listings of 50 words or less per bar member per calendar year EXCEPT for "position wanted" or "position offered" listings - $35 per Insertion of 50 words or less, $.50 per additional word; Nonmembers: $35 per insertion of 50 words or less. $.50 per additional word. Classified copy and payment must be received according to the following publishing schedule: January '96 issue - deadline November 15, 1995; March '96 issue - deadline January 15, 1996. No deadline extensions will be made. Send classified copy and payment. payable to The Alabama Lawyer. to: Alabama Lawyer Classifieds, c/o Margaret Murphy, P.O. Box 4156, Montgomery, Alabama 36101. Warranty Corporation, est. in t 988, EXPERT WITNESS : Professional MISCELLANEOUS has experienced well-managed 1O·fold engineer and attorney with a praclice growth lhe last three years, oflers of expert tesllmony in construction. excellent compensation, pension and safety, highway and structural design. ADOPTION: New Mexico auorney full range of fringe benefits. Send Over 30 years· experience In highway, seeks attorney who handled adoption resume and salary hislory to: Larry T. railroad, commercia l buildings and of Bill and Dan Phalen, natural sons of Myers, President. Warranty Corpora power plant construction. Call or write Michael R. and Cay C. Phalen. through lion, One Warranty Plaza, 4400 Gov for resume, fees: Lamar T. Hawkins, State Depanmentor Human Resources ernment Boulevard, Mobile, Alabama 950 22nd Street, North, Suite 632, in Montgomery, Alabama. Information 36693. Birmingham, Alabama 35203. Phone needed to administer estate of Michael (205) 458-8485. No representation Is Phalen. Please coniact WIiiiam J . ATTORNEY JOBS: Indispensable made that the quality of the legal ser Arland, Ill, Arland & Askew, P.A., P.O. monthly job-hunting bulletin listing 500· vices to be performed Is greater than Box 2208, Albuquerque, New Mexico 600 current jobs (government, private the quality of legal services performed 87103·1108. sector, public interest), RFPs, and by other lawyers. legal search oppor1unitiesfor attorneys • LEGAL RESEARCH: Legal research CODES WANTED : II you have any at all levels of experience In Washing· help. Experienced attorney, member of soft-bound copies of the 1994 (last Ion. D.C. nationwide and abroad. Order Alabama State Bar since 1977. Access year's) Criminal Code that you are will the National and Federal Legal to State Law Library. WESTLAW avail ing to donate. please drop them by my Employment Report rrom: Federal able. Prompt deadline searches. Sarah office, or call and leave a message and Reports, 1010 Vermont Avenue, NW, Kathryn Farnell, 112 Moore Building, t will pick them up from your office. Suite 408-AB, Washington, D.C. 20005. Montgomery, Alabama 36104. Phone Several Juvenile group homes, deten $39-3 months; $69-6 months. (334) 277-7937. No representation Is tion centers and our local jail would Phone 1·800·296-9611. Visa/MC. greatly appreciate your kindness. made that the quality of the legal ser Shirley T. Chapin, 720 Lurleen Wallace vices to be performed is greater than Boulevard, Nonh, Tuscaloosa, Alaba SERVICES the quality of legal services performed ma 35401. Phone {205) 752-7066. by other lawyers. DOCUMENT EXAMINER: Examlna DOCUMENT EXAMINER: Certified LAST WILL & TESTAMENT: Anyone lion of Questioned Documents. Certi Forensic Document Examiner. Chief having knowledge of the preparation of fied Forensic Handwriting and document examiner, Alabama Depan a last will & testament for James Document Examiner. Twenty-n ine ment of Forensic Sciences , relired. Richard Compton of 1601 Cofesbury years' e~perience In all forensic docu American Board of Forensic Document Circle, Birmingham, Alabama 35226 ment problems. Formerly, Chier Oues· Examiners, American Academy of please contact Elaine Jones at (205) tioned Document Analyst, USA Forensic Sciences, American Society 945-8666. Criminal Investigation Laboratories. of Questioned Document Examiners. Diplomata (cerllfied)-Brflish FSS. Over 20 years· experience in slate and Diplomata {cer1ified)-ABFDE. Mem· federal courts in Alabama. Lama r POSITIONS OFFERED ber: ASODE: IAI; SAFDE: NACOL. Miller, 11420 N. Kendall Drive, Suite Resume and lee schedule upon 206-A, Miami, Florida 33176. In Birm request. Hans Mayer Gidlon. 218 Mer ingham, phone (205) 988-4158. In IN-HOUSE LEGAL COUNSEL: Need rymont Drive, Augusta, Georgia 30907. Miami, phone (305) 274-4469. Fax ed Immediate ly. Sala ry negotiable . Phone {706) 860-4267. (305) 596-2618. 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Contact of Forensic Document Examiners . John E. Reinhardt , P.O. Box 6343, Member: American Society of Ques BAO FAITH SPECIALIST: 25+ years Huntsville, Alabama 35824 . Phone tioned Documenl Examiners, American of insurance claims experience, in the (205) 837-6341. Academy of Forensic Sciences, South· arel!s of Bl, UM, UIM , PIP & CPL. eastern Association of Forensic Docu Deposed and testified in lrlal, as an INSURANCE EXPERT WITNESS: Lill· m enl Examiners . Criminal and civil expert witness. Don Ching & Assocl· gation support services for defendants matters. Carney & Hammond Forensic ates, P Box 1798, Kapaa, Hawaii and plaintiffs, specializing in property, .0 . Document Laboratory , 5855 Jimmy 96746 . Phone (808) 822-0912 . Fax casualty and mar ine . Twenty-five Carter Boulevard, Norcross (Atlanta), (808) 822-0803. years' experience as agent, broker and Georgia 30071. Phone (770) 416· teacher. Agents E&O a specialty. Will 7690. Fax (770) 416-7689. MEDICAL RECORDS EXAMINER: travel. 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