1,w~J1r•• t•I" AS~C,C".Alt? ti• t •t ..PdVC.,,~· · ·1l•H" ...u. , ••.t J: ~·JAf( 1Ail/Ulli1fl[0 ,V.C,:'. t l $l)fl• ,• • ul , Gt;..!lll•C:. • H • 1,r.fl1•.::c:r.1o•ff,i ''At Union Bank, ure urork hard to ea1·11 your tI•11st.'' - Henry A. Leslie. P1t.'Sidcn1 and Chief E.,em1 ivu OOk~·r
Union Bank works closelv with n:ianv Alaban1a at101neys in the adm inis tration or t11.1sts and estates. Our investment capabilities have increased dramatically in the past ye,u-by thei add it on or a state-ol~the-art computerized system. /\s Alabama's largest independent bank, we con trol all ou1· invesLmen l pl'ocessing vvith in LheTrus t Oepai'ln1enl Lo assure cons tant attention and com plete confiden tiality for your clients. We invite you r questions about Union Bank's LJ1..1st se1vices. Ow · experienced trus t offlcers will be glad Lo discuss any bus iness, financial or adm inistrative aspec t of the services we provide.
I Ii lIC>11 BAnK & TRUST. IEC $59.95 $69.95 $34.95 THEJ,H ~J :HARRISON COMPANY, PUBLISHERS 3110 Crossing Park • No rcross, Georgia 3007 1 Theawyer Aluhanm ..,,,.,., l'ublnlwd Bllnomhfy bf 1be AIMN.ffl,1$,t,1((' 81r l1, 0 , &t 4-1,0 M,ootgunny. AL ,r,o THE MAY 1983 PIKIPC:(io,J a119-1,o kol,,m A. M~a.- fm No""i:IS-Maiuglntt P.dl!Of Philli1) e. Adams, Jr., Opdlb • Buxton \Y. ,\.)he, T ll.K'Ul1lbii • R()bcrt P. Ot::nn~ton, ,\iobilc • Val17.fflll Penn Durm t, 1\io ntgomcry • Patrick H. Guvu, Jr., Hunuvill c • Robcrc 8 . H-arwood , Jr .. Tu,~,1,· locw • Oump Lyom, Jr., i\tobik • Wtlliun 0 . Mchan, E\'CS"gtccn• L Drew Rc:ddcn,8 irmingh:un • Carol Ann Smith , Birmi ngh ,m • J, 1\i.1.rk. \\'hitc., Birming· hffll • J. o. Scnrdl, cx·olT11do, i\tontgomcry 1stCi.m1 it, Ed~rd P. Tumc:r, Jr,-.Ou 1tom • ~nd Ci.rwit, Legal rights of the handicapped r. Rk hatd H~nky, Grm,viJlc • JtdOn -uir..J . Ciomw, HouJton, Jr., .Euf:iuJ.a.• 4th Cirru.it, H:trry W. G:imblc., -p g. I28 Jr.,Sdm:. • jth Clri;uit, O ,:u:b It. Ad2ir, DJdcviJl,c• 6th 0m m, W~n:r r. Oownovu, Tusetll)c)U • 1th Cimiit, MuchJegis lativc and judicial attention H. \VayncU,vc, Anni$C:..:.\ • $th Cimih, Robc1t Straub, has bcco focused upon the rights of the O«:.itur • .9th Circun , Willbm 0 . Str uggs, Jr., Fe, handicapped . .Representing the ",pedal P:iy~ • 101h Circ-,1it, \Y,1.rren 8 . Lig.lufoot, Birmingham • 11th Circuh , Src~rt Regular Features President's Page ...... 120 Executive Director's Report ...... 121 Letters to the Editor .. . . 123 About Members, Among Fim1S ...... 124 New policies in the criminal justice system -:P g. I40 Riding the Circuits ..... 134 The insanity defense, the exclusionary CLE News ...... 136 mle, and die writ of habeas corpus have drawn criticism from both lawyers and Young Lawyers' Section .. 138 die public. Arc rcfom1sneeded and, if so, how can the ri.ghtS of the accused be Recent Decisions ...... 146 safeguarded? Commissioner Meeting Report ...... (59 Legislative Wrap-Up .... 162 Bar Briefs ...... 164 Ho w to avoid the unintentional grie vance It Happened at the Bar .. 166 - pg. 156 General Counsel A lawyer's darkest hour is d1e inquiry Opinions ...... 168 from die Grievance Committee . Adhcr· cncc to simple tcnctS can preclude most Disciplinary Report ..... 169 Lmintcntionalgr ievances. The Fina.I Judgment ..... 172 Classifieds ...... l75 Federal courthouse gets new ll3Jll e -pg. IS4 Et Cetera ...... •...... 176 Toe Fcdernl Courthouse in Mobile wa.< recently named in honor of John Archibald C.11npbell.Campbell was one of the few Alabama lawyers to serve as a Justice of the United States Sup reme Court:. The AIIW111n11La"1" "9 <¥residettt's <¥age S ince our list issue ()W' bbors have d:ttcs for public office. The Canons of continued on a more or less even keel. I Judici:tl Ethics do ooL, nor should they. would like to commcnr on what I sh~ permit response by the courr or the designate "T he Four C's( - Com· judge; and they $imply do not have • pliancc, Criticism, Commme.-.s a.nd forum in which to respond. I am not alone in this concern. During die year Convention. your Executive Committee h,s :tu· Compli1111ce.The response of the d,ori,.cd one reply by me in the form of a mcmbcn to the reporting rcquirctncnl.:j lcner to die cdiror of a major daily news of Mandatory Continuing Legal Educa paper (which did nor, incidcnt:illy, pub tion has been, :is l have mted before, lish rhe full content of the lcner). Tiicre simply great. We do have a number is now in effect a prog= in which each of lawyers who, for one ru.son or Bar Commissioner has been asked ro re· nnothc r, have not complicJ . Ea~h pon on instances of what he ~idcrs member of the Board of Bnr Comml$ unf.ur criucism. These rcpons will be sioners was furnished with n list of reviewed by the f.x«utivc Co~ttcc lawyersin his circuit who have not com· and, if wnrraJHcd, .tn appropnarc re plied and they have been :isk~-dro per· sponsewill be made by me in the name of son~ conrocr those lawyers. By lhe the Alabama Srare Bar. 11,crc is no rca· time you read this, a list will have been §On why individu:u members could not certified ro the Supreme Court of those assume the s•mc reporting rosk, and we who failed to comply and, r am conli· do solicit yoursuppon. Pl~be~ dent, sanctions will be imposed as re· d,ar I speak nor oi objccnvc, f.ur criu vwan,,he •'Otld'•b'll,C'l tron """' • .,,..r1oc,1.. quir,-d by the Rules. rumdone in • responsible m.mncr. ingRirm1nghan, . Committ eeJ. We function mnloly through commim:cs. Moll of the .com Con11,11tw11. More time is devoted One dcpam ,rc from my outline. As a miccccs have addressed thcir :iss,gncd each cby to trying_ro put roged,~r. an result of our investigationsinto abusesof cask and h3\·e done a good job. Others interesting, rewarding and cn1crta1nmg the lndigcnc Defense Fund die Discipli· have not. For the Inner I am at least ger•togcthcr in July in Birrningharn. We nary Boo.rdhns imposed, and there has somewhat to blarnc in not bmlding the shall devote one full day (Thun;day) , nd been administered, one public censure. necessary fire, l am convinced d10t, fi. paru of others, to presenting programs The investigation$ arc continuing and, nanccs permitting, the bar should estab whid1 shall be available as MCLE cred undoubrcdly, more complaints will be lish an off,cc to coordinate committee its. Alabanla and Cumberland nre ooor· filed. Mnny circuits, I am told, have now and section work. The work load is renlly dinatii,g their dforrs and each of you in established some sort orpeer review of too burdensome for chis t:JSk to be han· ancndancc wiU r~y be getting some· daims for scl'\eiccs. l11is should prevent died in d,e present manner. thing for your "convcmioo dollar." I~ most, if not all, of the abuses. Critidsm. I have, for some time now, addition wearcdcterm1ncdtonuketh1s I-lope to sec you soon~pcci:il l)• in been concerned wirh unfair and unwnr· a fim tini~ and, hopcfolly, will succct-d in Birmingh= in July. lining up a number of cnjo)•ablc mo ranted criticism of the judici.uy by the Norbomc C Stone, Jr. nc,vs n,c:dia, and to some extent, cnndi· ments for you. ~xecutive <.Director's ~port Lawyer Referral Service Unda unt~-d by tile poor attendance, All persons seeking a referral do nor Judge Rubin made a most impressive follow d1rough and keep an appo int case for tlie establishment of a statewide n1cnt; ho,YcVet\ t,934 cases \Veredoar · ''You'vc come a long way baby" is law)•ei· referral service. Successful pro · rnented in 1982 in which an attorney · a pop,~ar advertising slog:m used in the grams were operating in oilier States and client relationship wa.~cstab lishL-d.At tobacco industry. This slogan could just tl1rough rliese programs me public was tornei •s are cncouraged , but not re a.~easily be used when describing the being assisted in employing competent quired, to report back to the LRS Gov· Lawyer Referral Service (LRS ). It might counsel. cm ing Board the fees earned thro ugh be appropriate to add further the phrase Almost eight years after Judge Ru rlic referrals. TI1isre pond ocs not entail a "b ut it took a long time." bin 's presentation, the Alabama State specific fee run ornit, but fees are reported In reviewing the records of our Bar's LRS was launched at the 1978 in ranges. One hundred attorneys re· statewide lawyer referral service for the Mid-Winter Meeting of the Alabama poned fcc-soflcss tl1ans ,oo,582 reported 1982 calendar year, I could not help but State Bar in Montgomery. Ernest C. fees of between $100 ruid Ssoo, ruid no chuckle when rdl«-ting upon the cur• "So nny" Hornsby , Alabama State Bar reported fees earned ui excess of SJoo. rent success of the program when com president at the time, became tlie first Consider the statistics for the 1982 pared to die difficulties in getting the state bar member co join the referral calenda r year and determine if you program institut ed. pancl. In these five succeeding years, the wo,ud like to "sign up" for LRS panel LRS was introdu ced as a concept to success of die prograni has been o ne of membership. The at:1nualfee for mem thcstatc bar at the 1970 Amiual Meeting die bar's real pluses. The public is being bership is $25 and each participant may in Birmingham. At diat meeting , d1e well served by competent attomcys , and elect up to six areas of procticc in which a chainnan of die A.BA Standing Com in all candor , die paying clients referred referral will be accepted. In addition to mittee o n Lawyer Referral Services had dm mgh LRS have had a significant im• the members hip fee, a referral panel come !tom Baton Rouge, Lou isiana to pact on legal economics. member must furnish proof of coverage make a prescmation. The room was ,u,der ru1 in-force professional liability packed just prior to d1.is presentation The statewide system currently has 252 insuraocc policyat:1d, further, muse agree which, unforrunatcly , was preceded by a panel members. While this number may thar the initial consultation, nor to ex· coffee break. As a new bar director in• seem small, it sho uld be pointed out diat cced th irty minut es, will be billed to tl1e Birmingham, Mobile and Huntsville volved with his first annual mecc-ting,I client at a rate of s20. Any services rcn· ivas greatly embarrassed whco our have local referral services and the mcm· dercd beyond d1c initial consultation arc spea ker addressed an audience of be.rs of the bar in the judicial circuits ia co be governed by a mutually satisfactory thirty-one p<.-oplc, many of whom were which d1cse cities arc located participate attorney-client contracr of employment. members of die Board of Bar Commis · in the local service. Tiiesc three local re In rlic first three mond1s of 198;, we ferral programs have 471 panel members. sioncrs that I had encouraged to be pan made 1,200 referrals wirliin rlie state and of the audience. The speaker thot after While there arc pand members in c-acl1 outside d1c three metropolitan areas noon was Judge Alvin Rubin, presently of the tliirty-ninc jud icial circuits, there noted above. U.S. cirmi t judge for the Fifth Circuit. I are a few counties in whid i tlierc is no llic statewide referral system is ad have often thought had he ocmp icd that lawyer signed up wim the service, at:1d vertiSL-din the YcUow Pages of all phone posirion in 1970 , instead of a U.S. district clients frequently must go co an adjacent boo ks in th e scare of Alabama, and judgeship in Louisiat:1a,perhaps the at· county widiin the circuit co obtain legal clients desiring referrals may call the tcndance would have been better. advice. state bar toll free. 1'h~Alnlm,11a. J.. a-.,v:r If you would like ro sign up as a LRS pand member or desire mon: irJorma cion, pleasewrite: Mrs. G:ile Skinner Introduce AlabamaSr:ue Bar P. O. Box671 Your Clients Monrgomet)•, AL 36101 Licenses and Special Membership toa l rccendy rcccivcdthe first quarterly report from d1c State Revenue Depart· Valuable Service. mcot for fiscal year 19Sz-198, which contained rhc names of tho$Cattorneys Ref-er them to B u sine ss V a luation Services for expert who hold a current license to practice determination of f air market va lue o f businesses, and law in the state of Alabama. There arc financial analysis and consultation In cases of: 4-,1s1names on this list. In reconcilingthe Revenue Dq,artmcnt's list with our own 0 Estate planning D Bankruptcy records, we discovered 228 lawy= who 0 Estate proceedings purdmcd licenses bst fiscalyear not to settlement 0 Merge .rs or be on misyws list. • Filly-one of these 0 Marital dissolutions acquisitions wen: rcpc;it delinquencies from fiscal 0 Recapitalizations 0 Buy -se ll agreements year 1981-11)82. 0 Emp loyee stock 0 D lss identstockholder Enforccmcm authority in this matter ownershi p p lans suits rests with the Scace Revenue Depart ment;ho,vc:vr:r, as :1 n,arrcrof councsy,l Contact Dr . Jo h n H. Davis Ill , 60 Commerce St., sent a memorandum 10those potentially Suite 1407, P.O. Box 2310, M ontgomery, AL36103 dd.inqucnt attorncys reminding them of (2 0 5) 262-6751 . their liccnsurc obligations. Since send ing the memo, seventy-nine attorneys have purchased licenseswhich they had previously fuilcdco purd1asc. A number of the llwycrs whose names did not ap Construction Dispute? pear on the list had, in fact, purchased licenseswithin the required time period, bu1, either through failun, of the local Call an Expert! licmsing authority co forward the in 7 When confronted with a construction formation or through clericalproblems claims case, put WHl's expertise to work in the Revenue O.:partmcnt, thcir names for you in preparing a winning strategy . did not appearo n the list. The recordsin thi~ office have been corrccrcd to reflect WHI has successfully provided expert the proper scarus. claims ana lysis and prepara tion services Special Membershipdues have been on setllements worth more than $4.5 bil paid by I .S46 members of die state bar, lio n on both nat ional and Internationa l while d,ose ntrorneys admitted since co nstr uction projects . Call WHI today for October 1, 1981,n tot:ilof 960, arc clCcmpt an expert consu ltation . for rwo years from year of admittance wagne r. hohn s -inglis -inc. from the purcho.se of 11 license or the 812Piw11 A..,... payment of Special Membership dues. We currently carrythe names of 6,83.S - (l!O<)aa-,<,171· I.Noione 70448 attorneys on the active roll, and some 179 Ollie• Loc.lUoM applicants the results of the Febru ,-... ttcilrHJ • ~ 0.C. • T.-pa. R. 11w:air S.. ~CA • "-- City MO• U 0----. CA ary 1983 bar cum. ------The bar, like the Lawyer Rcfcmil Ser vice, h:is come 3 long way. There were Name~~~ -----~- ~~~~~- s~ghtly over 1.,100 members on the roll Company ------of the bar in July 1969. Add,-ess______C11y______Suua__ Z,p ___ _ _ Regina.Id T. Hanmer 1o111l the rot:il numbcr filed an11ually, ap· proximarcly ten pcrccnc( 10%) have enough racialmerit to warrant a full heari ng in the circuit court. Often a prisoner will desire to represent him self at these hearings (and even at a trial on the mcrics following indiet· menr ) which by necessity places Jud~c Webb in the additiona l role of "detcnsc coumel." Of course , as in every circuit , ou r civil ca.Sc filings arc increasing, but A ddi tio n al jud ges hip ne eded percent (4S%) of the criminal cases in the prison related work load is ex· for overw helmi n g caseloa d Escamhia County originate from our peered to rapidly in crease and mult i (the srnte's) prison system. Of th e ply at 3 shareer rate du e ro the ever A ropic of conversation amon g the three hun dred twelve (312) indicr increasing pr ison populatio ns caused Escambia County Bar for the last mcncs returned as 1ruc bills by Es· partially by the provisions of the couple of years has bero the need to cambia County gran d juries in 1982., Habitual Offender Acr and provi create an additional circuit judgeship it isestimated tl,ar one hundred forty sions of our Criminal Code mandat· for the Twenty -first Judicial Circuit. ( 140) arc directly related to the ing sentences oflifc without parole . The scnrimror of our bar was ex· prison sysrcm . Although no firm The Escambia Counrv Bar sin pressed by unani mous reso lution statisti cs were available, it was re cerely feels that 11Dadditio nal circuit chat an additio nal circuit judge is ported char the prison system pro judge in the Twenty -first Judicial needed ro relieve Judge Douglas S. duces for our circuit an above aver· Circuit is n~-dcd and justified, and Webb of a work load wh ich is fust age nu mber of mmdcr and assault any support received from rhe vari- beco ming overwhelm ing, even for a cases, and any priso n-related case 00$ members of the Alabama Stare judge of his caliber and dedication. pr ese nt s a rrernend o us sccuri ry Bar to effect l?assagc of necessary Last year, we requ ested Senator Reo pro blem for the court in tbc case's legis lati o n w 1II be greatl y ap Kirkland , Jr., and then Rcprcscnta · passage rhrough each stage o f the preciated. • rive Broo ks I-lines to spo nsor appro crimin al trial proc ess. Also , the Brcu,1011 Edward T. Hines priate legislatio n, and Senarc BiU6 3 priso n sysrc m ge nerates a Large was inrroduc.cd. Pursuant to Section number of habeas corpus pctirions 6.1.2 of Amend ment Num ber 328, and otl1cr posr-appcal extra.ordinary "The above ~rncistical inform atio n Constirution of Alabama, as writs which must behandkd by and was dcri\•ed from the repo rt of the 23 amended , the enab ling legislation through our circuit court. As can Alabama Supreme CourrofJunc 1 r98z, relative 10 Senate Bilf 63 ana was prcscnrcd to the Alabama Su best be determined , at leasr fi\·e (s) of from personal interviews con preme Court fo r its review and such petitions arc filed each week ducted with various Escambia comment . The Supreme Court sub wich the court by prisoners, and of Counry court officials. mitted a report to the legislatu re based on statistics derive d fro m the case reporti ng system of the Ad ministrative Office of Cour ts that LEI1'BRS TO THE EDITOR was unfuvorable to lase year's passage of the legislation; however, the court 111ep urpose of the Lcttcl;Sto me Editor column is co provide n fomm for rhc suggcsrcd in irs repo rt that the pre expression of the rc:.1dcrs' views. Readers of Tiu A lnbm11nLawyer arc invited 10 sence of Ho lman Prison and G. K. submit short lcrrcrs, not exceeding~so words, expressingthci r opinions or gh>ing Fount:iin Correctio nal Facility in Es information as to any matter appearing in the publicarion or od1crwisc.The editor cam bia Co un ty war rants dose reserves the nght to select the excaprs d1crcfrom to publish. Unless qthcrwisc, monitoring of thlS circuit's casel oad. expressedby I.heauthor , all lettersspccifiall y addressed as Leners to the Editor will Our bar will continue ics cfforrs ro be candidates for publie:ttion m 17,e Alabama lAa-:,rr. The publie:ttionof a letter cAet.,passage of this legislation, and docs not, howc,·cr,ro nstirutean endorsement orth e vicw,1cxprc.1Sed . Letters to the we fed that such legislation will and F,.dimrs hould be scru t0 : shou ld receive statewide support when everyone considers and al" The Alabama LJ"'Yer preciarcs the affect 3 maximum secu· Lcttm to the Eo.htor rity prison system has on the circuit P.O. Box +1.!6 in which it is loc:m:d . Monrgomcry, AL 36101 For insnn cc, it has been det er· mincJ rhar appr oximately forry-five ~bout Members ~mongFirms About Members March Moo re and James Donald Suite 311,One Court Squ:irt; Hughes h:ivc become members of the Monrgomcry, Alabama 361o+. Stephen W, Still h.u been transfcC1'c-d firm nnd Onvid 8. Hudgens and Allan by Sonar Inc. m Washington, D.C. R. Wheel.er have beoomc associated where he serves in. the c:!pa~ty of Staff with the fimi. Otlices arc at 1101 No rth Haskc.U Slaught er Youn.g & Attomcy-Govcm mcnt Afhurs. Mcrthnnrs National Bank Building, Lewis, 1'.A. , mkcs pleasure in I'. 0. Box 2110, Mobile, Alabania 366o1. annuuncing d1ar James]. Odom , Jr. , formerly in private practice in Tuscaloosa mo mcy Slade Watson Birmingham, and David S. Dunkl e, was aw;1,rdedrhe Alabama-Mississippi Frederick L. Fo hrcU, James P. Hess Guy V. Martin , Jr. B. Alsron Rav, Optimist "Outst:1J1ding Lieutenant and L. Th ompson Mu\.iurttic Robcrr D. Shattu ck, Jr., Judson£. Governor• award at r:licirdistrict board announce the fomlation ofa partnership To mlin, Jr., and Jomuhan H. Waller, mccting in Fcbru:iry. Wa1SOn,an for die gcncl'lllpractice of law undcr the formerly associates with the £ion, ha,•e Optimist since 19611,was honored for his firm name of Fohrcll, H ess & become members of die firm. Officesan: work in the district during 1981·S2. McMurtric. Office$ uc located ac 221 at Soo Fim National-Southern Narural E:ut Side Squan:, Suite 1-B,P. 0 . Box Building, Birmingham, Alabama 35203. 1110, Hunrsvilk, Alabama 353o+. Phone 151•1000. Among Firms H. Lewis Gillis, former chief deputy The bw firm of Beasley & Wrlson is D.A., is pleased co announce the pleased ro announcc thot James W. The law fimi of H owcll, Johnston & opening of his office for the practice of Traeger, fomicrly an assis1:1mco the Langford is pleased ro announce that law nt +3+ Sayre Street, Montgomery, dismcr attorney, l1as become an Rld fard Leigh Watters is now Abbanin 3610+. associate of the firm. OA1ccsarc locarcd associai.-dw ith the firm. Offices arc at at +18 South H,JI Street, Montgomery, 903 S ~ ~ ------~ What? Imperfection at Hugo's? rnntshould fill yoursensesa.H,ell B$your Jrlasses. Thal it should have diijtindivr.ly finl' cuisine. Be No, not really. We just thought it would be fun to ~ontemporary. yet posses., a reverence for ele sec ir you can spot lhe misplaced items in thl' abo,·t> KBnc:e.Hugo's. Experienrl' it for yoursetr. photo. t'or information and re. Registration Contintiing Legal I nfonnation General A.sse11zbly Education In mid· June n:gistnidc,n materials The 1983 Annual Meeting of the Programs scheduled at the annual will be scm so that you may pn:· AlabamaScm: Bar will begin this year meeting will give the nrrorn~ in· register for the Alabam• Stare Bar on Thursd!I)• morning, July 2 1 with tcn:sted in obtaining hours toward 1983 Annuli Meeting co be hdd in the Recent Dcvdopmcnts in the law the mandatory CLE requiremcnl Birmingham July 21·23. Not only seminar. ·mosc w l10 regularly arccnd d1e opp<>mmiry to earn credit. TI,osc will you save money by pre· the annual meeting will want to oote attending the Recent Developments registering, bur you will save rime. this change in scheduling and be in in the uw scmin:lr on Thu~y will Your tickers for the soci•I and Birmingham early on Thursday. cam mon: Ihm six hours of credit. lwichcon functions you choose ro •r· Further information on appro"ed tend will be in • packet re:tdy for you CLE programs :ind mc:ctings wiU be to pick up when you arrive in Bir· available closer to convention time. mingham. This will :,Jro help us tO Bench and Bar better pl;rnfor your convention. Can· L11,ncl1eon ccllauons with • full rcfond may be made through July 19. TI,osc unable ro prc•register will TI1cBench and Bar L,mcheon to be find a booth set up at d1e Hyarc on bdd on Thursday will feature guest Wcdncsd.tyafternoon ;ind through spcuer Morris Harrell, president of Menzbership the remainder of the convention for the AmericanBar Association. l.t isan rcgisrr:uion, to purcho.se tickets for honor lO have Mr. Harrell at the an• Reception. d1c specinl rickcred functions, and for nual meeting, and you will not want gc11er.ilinformation purposes. to mi.ls this event. One of the "f.a"oritc" social c-•cno of the annual meeting is mecradi · cional membership reception held on Hotel Reservations Thursday night. This year's reception will be held at the Birmingham · The com·cntion hcadquarn:rs wm reedy. You may call the rcscrvation Jdfe rson Civic Center with • jazz be the Hyatt Bim,ingham and room office at (205) 322-1234 or write d,e band to enterrain. Look forward t<) reservations must be made on an in· Hyntr Birmingham, Reservation Of• fabulous food. drink., nnd fun! The dividual basis by caUingthe hotd di· fice, 90 I North 21st Street, Birming· dress for this occasion is casual ... as ham, Abbama 35203. A block of a marccrof facr, jUStl eave that Mblaclt rooms has been rcscr.'al and assign· tic" ar home this week. mcnt of rooms will beon a firstcome, first scr.•c bas.is. Please identify your· self as ~ member of the bar when making your reservation. AJ1,11z.niLt,ncheons Those unable ro get 2 room at die Hyatt, or upon pc.rsonnJ preference, may cont1ct the hotel of their choice. As is cusromary, chc University of For convenience we suggest contact• Al.abama School of Low md Cum· ing the nearby Civic Ccrncr Holiday bcrland School of uw "~II host Inn (20' ) 328-6320. alumni luncheons on Friday. 1983 Secti.on Meetings Annual Dinner and Dance Sc,don meetings will be held on TI1e annunl dinner and dance will be on Friday night. A sumpruoau buffet Friday af'tcrnoon nnd Saturday dinner will be followed by the 50's and 60'ssou nds of the popular bru1d Clu:rySfr. morning. Some sections will conduct business mttcings :md elect officccs, 2nd others will have • program pl;uincd . Members of the bu in tt:rCStcd in a =ion arc cordially in vited co mend the meetings and pro gr:mu. for those not mending sec· cion meetings , there will be other progr.im choices available. Don'I forget)'OUT joggingshoes if you plan to panidpate in the annual fun run! TI1e run will ttkc place early Saturday morning and trophies will be awarded to winners in scvcl'lll General B1-tsiness Meeting During the genera l business meet· ing on Saturday morning, Afabama . . . and 1nuchmore State Bar President Norborne C. B1·eakfasts Stone , Jr. will pass the gavel to President-elect Willi:lffl B. Hairston, TI1c F:milly Brcnf:ut will be on Jr. ro ;usumc 1hcpresidency of the bar Sarurcby mon1ing following the an for die 1983·84 year. Afterwards the nual fun run. Od1er special brcakfut_ c:kction of a new president-elect will details, indudlng the new 1983-84 toke place. encourage all members Wt Committee l~rcakfast, will be in to participate in choosing the nnor cluded in the registration materials. ncy to fill this imporront office. Education of the Handicapped The Lawyer's Role Robert H. Smith " .•. But the offspring of the in forior, or of die better when rhcy chnncc.to be dcfom1cd, ,:,,illbe put RobertH. Smith, a pnrt11trill rlJeMobilr away 1n some mysterious , un !Jfwfin11 of Collins,Gallow111 & Smir/J, is11 known place as they should gmd,uru ofBirminglmm S,,, 111,ernCo/kg, bc • • .n and rr«ivtd /JisJD. tkgrtt from tl,e Uni - Plato •'mity of Alnhtrmn . B efore you hastily lc:lvethis article frustrations and uncmnincics of trying ardcd (profound, min:iblc and educa in Sc:trcho f something )'OU feel may bc t0 provide an cducarion for their handi· ble), hard of hearing, deaf, speechim· more gainful to your practic:c, !er me capped child. paired, vi$unlly handicapped, seriously invite you tO sroy a few moments while I While this article is limited to the law emotionally dismrbcd, ortl1opacdically try ro impress upon you that every prac· conccrniog the delivery of educational impaired, other health impaired, deaf• ricing lawyer in the st.tte of Alab;una services to handicapped , the field is blind, mulri-h;indicappcd, or rhosc with needs co have some:kn owledge of this much bro•dcr and involves luger sp«i6c lc:trningdisabililics who because emerging licld of cducnional law. Rep· theme s of publi c access, non of those impairn1cnts need special edu tescnting the handicapped not only discriminarion in jobs nnd related nm · cation and rclatcd services.TI1c cducJbly scrvcsn recognized need, irnlso provides tcts. mentally rcrordcd and learning disabled a m:mcndous senseof pcl'10nalsarisf.lc· m:ikc up the largest id,·mifiabk h.tndi· tion to rhc ad.-ocatc:.Do )'OU rcrncmbcr capped grou p. For inforrnuio n pur· tn htw Khool how )'OU felt with un· poses you should know tl1c diffi:rcncc Who are They? bow1dcd idealism that you would hold bctwc1:nthe cducntionnlcerms of mcmnl the sword for the righteous and the Th ere arc approximately seventy retardation and specific learning disabil shield for the helpless, only co find our thousand children in Ab.b;una who arc ity. ln the broadest sc.,nsc,the mentally after graduaaon th.it there were such eligible co rcccivcsp«ial education. The retarded arc considcKllblcdinclud es such condi· With the expanding awareness of the Alabama nccoum for approxim:ucly ten cions as pcrccprual handicaps, brain in· le1,ral rights of the hnndicnppcd you will pcrccnr of the total scl1ool populacion. jury, minimal brain disfun,1-ion,dy slexia most likely bc c3lled up<)n at some time, Not aUof these children arc hwdicapped and dcvdo pmcntal aph:asi;i. informally or formally, to counsel d1e in rhc tnditional sense, because under Handi capped children may bc re· handicapped or a member of thcir f.am• Alabama laws concerning special chil• cciving scn•iccs in the ~regular" local ily. TI1cranks of the hnndic.1ppeddo not drcn, tl,c "bright nnd gifted» arc also school population where they will re· ncady follow socio-economic lines, ra· included in that counr. Bright and giltcJ ccivc insrnicrion in sclJ'.conroined clnss· cial lines or other patrcnu in our society, arc, not included under tl1c federal St3· rooms or be "mainsm,amcd~ with rhc so the ch.tnccs arc }'OU know the family DJICS. nonh.tndicappcd. Servi= may be pro of a handicapped child, a handicapped H ;indic.appedd1ildttn for purposcz of vided in special schools identifiable person or have a rdarivc whom you have the stat\ltCS and rcgulnrions involve within • school sysrmt, or in regional watched r,ri;r hand struggle through the chose children who .,re: mentally re- schools such :asTaUndcgn, in instirutions such as Partlow, ,it home or not at all. through Paul H. Brookes Pub The Rchabilirndon Acr of 1973 (Sec· Since the ndvclll of sme and fc-derallaws lishers, Post Oflicc Box 10624, rion 50.f) prohibits discrimination on the subject of cducntion for the Baltimore, Marybnd 2120-i. against mhcl'\,'\SCqu,lified handiapped h:md,c•ppcd, IL will be JSSumcd that pcrsom jUM.u Tiilc VI prohibii:s dis· criminarion based on race and Title CX most of the h:mdiappcd children in this Highlights of the St:tte and staic have been identified and arc re· Federal Acts prohibits d1scrimmaaon based upon cci,-ingsome f)'J'C of service.The lawyer gender. The receipt of federal financial becomes i11"oh'Cdwith 1he dclivtl)' of The Abb.unn Exceptional Child Edu as>i$t311 1)0 that the heating is held and providing pcd children's parents by taking their ri.al. The school board will have its attor rJie space for me hearing, notice and money with promises of miraculous re· ney present and the parents and child other procedural marrers. At die present suits. 11ic expert's credentials, including sho,,ld have their arromey present. Wit· time in Alabama, the State agency will his standing in the professionalcommu · nesses will be examined and cross appoint three hearing officers. TI1c rc niry, should be closely cl1ecked. exaniuied. v\lhilerherc arc opporrunitics quirememsof Public Law 94· 142 and the Because most educational experts will for review of this hearing, Likeany otl1er regulations are chat mese hearing offi· not be fumiLiarwith the Supreme Court's case, the advocateshould prepare to pre· ccrs be impartial. They cannot be em decision concerning Amy Rowley, the vail ar the trial stage and, in this case, at ployees of the agency which is involved standard developed in diat case sh0ttld me initial hearing. Additional evidence in rue education or care of the child or be presented to me experr before be ren· can be submirred at tbe review l1c-aru1g have a personal or professional interest ders an opinion. See BoardofEd11catio11 v. and even in civil actions filed in either which would conflict widi d1eir objec Ruwlcy, supra. Experrs arc always called fcdcraJ or State court, but die Supreme tivity in the hearing. The state agency is upon to op ine concerning tl1e ultimate Court has recently restricted the amount required co keep a Listof the names and issues in question and, in the case of of review thar will be had ac the judicial qualificationsof those persons who scn•c handicapped children, they will be called level.BoardofEd11catiq,1 v. Ro wley, supra. as hearing officers. Once the panel is upon to suggest an appropriate educa Congress provided in Public Law 94- appointed these qualifications should tional program. There is nothing more 142 that a party who was dissatisfied immediately be obtained and if there is unnerving than hearing an expert gloss wid1 the initial hearing and me review any question whacsoever as to the inl over the disrincrionbet\vcc n "possible» hearing provided ac the administrative partialiry of these hearing officers an and uprobablc." Likewise, in dealing level could bring a civil action and that immediate objection to the appointment with the handicapped child me expert die" . . . court shall receivethe records of of the hearing officers should be made. should only suggest a program which the administrative proceedings, shall lf, upon objection, die state agency fails tl1clocal board is required to in1plemem. hear additional evidencea t tl1erequest of co change the appoinmicnt of the hear· The expert should avoid characterizing a party and, basing its decision on the ing officers,o ne could consider making a programs as being "ideal," or as being preponderance of rhe evidence, shall challenge at the hearing directly co the programs which will "maximize tl1c po grant such relief as the court determines panel members. tential of die child" or will "make che is appcopriate." The Supreme Court says l'rior to che initial hearing, considera· child self-sufficient." What the record chat Congress intended for the courts to tion shot~d also be given to requesting should suggest arc programs which will only review the procedural aspectsof the d1at die hearing be held at a neutral site. " . . . consist of access to specialized in administrative hearing and to determine Normally, the hearing will be scheduled struction and related services which are whether the IBP was rc-asonably calcu by the Stateage ncy at the central oftice of individuallydesigned to provide cduca· lated to enable the cliild co receive edu· the local school system. This can be very cional benefit ro the handicapped child." cational benefits. Ir admonishes courts wicomfortable for teachers who are em Likewise, the lEl' whjch wiU detail the co avoid imposing tl1eir view of prefera ployed by rJ1e local syscc.m and even speciaLiu:dinstructions and re.latedser· ble educational methods upon the states. more uncomfortable for parents, par· vices shotild be " . . . reasonably calcu The dissent in Amy Rowley's case sue· tirnlarly if they arc caught by a sudden lated co enable the child to receive edu cinctly states mat "l.t]hc court's discus attack of "schoolhouse syndrome." cational benefits." sion of the standard for judicial review is O cher public facilities arc generally as Oawed as its discussion of a 'free ap· available and even private facilities at propriate public education.'" nominal cost can be arranged. Presentation of the Case W hile the format of the hearing is a mixture of d1c formal and informal, evi Civil Action Experts and Their Use dence ntles are relaxed as u1 other ad Assrnning that the.review hearing has More tl1an likelyyour expert wiUhave ministrative hearings. Great use can be nor afforded anymore relief dian the ini bee.n identified prior to the considcra· made of lerrers, reporrs and other docu tial hearing, the parents should dcccr rion of the initial hearing. The experts ments, suc.has affidavits. Even with tJ,e minc whether or nor dlC)' wish to file a and witnesses wiU generally be those use of documentaryevidence., l ive tcs· civil action. As previously noted, when who arc closely aligned co rhe e 1) 0 exclusivejudicial remedy and, therd"orc, Boanlo{EdJ,airi,,11,317 U.S. <183,193; l'C3SOllablycalcularcd to allow the child da,ms under the Fourteenth Amend - 4 S. Ct. 686 , 691 ; 98 L.Ed. 873 ro benefit from Sp<.-ci3ledu cation, then ment and § I 98} ore generally not c-og· ( 19~·i): such a unifarerruwid,drawnl should not 11i1-1blc.Section 504 ac-rionsarc congiz "Education is perlups the most work against the parent or child. Such a nblcas long as a claim for dis(rimination in,portam Function of state and siruation could arise when, 3 lcaming c-:in be subsW1tiJted. The w.ual devc:1- local ,govcrnmenu . . . in these disabled duld with averageor near aver opmcnt of the I EP :andits btcr fine tun days, ,c is doubtful dm 3llYchild age intelligence is crronoou,ly cl.15$ified ing will gencrall)'nor involvecfauns om mar.reasonably be expcaed to suc as educably menl'l111y ret:udcd or cmin· ceed 111life if he i~ denied die op· side of Public Law 91- 142. Sec l'11wrll v, ponunicy of an education. Such an ,b ly rcca.rdcd •nd is required 10 ,mend l)cforc,No . 112,8078 ( I l th Cir., Mnr. 2, opportunicy, where the state has cJ10tplacement during the proceedings. 1983 ). Also, nt this cimc, ir should be undertaken to provide, is • right Since it is possible for ths'SCproceedings dcrcnnincd whether thc mmcr should which must be available ro :ill on 10 bst as mud, as cwo years, the cktri· proceed as• d:us ,ction. If the compllmr cqu3l tctmS." mcnr ro the child may not be able to be of the parcna is rorolly concen,c,dwith undone. ln such• cas<:, :ipplicatH)nfor a thc individualizedprogram for tlie child, temporary restraining ordcr should re then a class action is not indicated. Mediatio n ceive prioricy. I lowcvcr, if there nrc certain common Once the hcaring has been «" IJ2 Affirmed!Reversed! Remanded! WETLAWTELL YOURIGHT AWAY A compute r legal research system If your computer system has only the text of shouldn't keep you in the dark about the the court opinion, things get more outcome of a case . complicated. The dispos ition might be Only WESTLAW tells you the disposition of stated near the beginning of the case . .. in a case in the same place on the first page of the middle of the case . . . or at the end of every Full Text Plus case . It Is cons istently the case. Whereve r it is, you'll have to read given on the first line following the the case till you find it. Of cou rse, you wl ll WESTLAW case synopsis . You can tell at a incur the extra time charges. That's a lot of glance whethe r the case you've retr ieved work and money spent for a simp le, vital has been affi rmed, reversed or piece of information. remanded . .. whether the order has been vacated . .. or wheth er the motion is Telling you the outcome of a case-a t a granted or denied . glance-ls Just one reason why WESTLAW You benefit by saving reading time. And the sets the standar d in computer -assisted time you save also means savings in legal research . There are many other comp uter time charges . reasons, too. For a demonstr ation, or more informat ion on how Wl:S TLA W can help you research and win cases, contact your West Publishing Sates Representative , or call Karen Holcom b, collect, at 612/22 8- 2506. West Publish ing Company, 50 W. Kellogg Blvd., P.O. Box 3526, St. Paul, MN 55165. WESllAW/WESf BOOKS ... They work together Mlchoel D. Goodson James B. Noel P.O. Box 17334 P.O Sox 74025 Montgomery. AL 36117 Birmingh.lm, AL 35253 Phone: 205/ 834 ..7872 Phone: 20St870-8525 Mobile Cow1ty dvic nffuirsand wns,mde an "hOllorary Greek" in apprcci3tion of his work with that community. At tbr regular monthlr mcc:tingo f the Mobile Bar Oanid T. ,'vkC:all, Jr., the other honoree, is alsoa grad1me Association, M,uch 18, 1983,tw o ofits members were honored of the Uni,'cl'Sil)' of Alabama LawSchool. McCall prac~ccd_ for their fifty,cars of service t o the public, bench and bar of law in Mobile from 1933 until 1960when he MlS elected c:imnt Mobile County. judge for the 111irrccnd1Judicial Cim1it and s~rvcd in that Charles S. Price, one of die anomeys honored, is n nutivcof cnpocity until Orn,ber 1969 when he was appointed as nn Indiana and a gruduarc of the University of Alabama LO\~ ossociatc justice of the Alabama Supreme Court. He was School. He took time our from his practiceoflaw coserve wuh clccred co th:at posarion in 1970 and served until he retired m Naval Intelligence during World War 11wd rcrumcd to 19iS, Judge McCall ,s a past pttS1dcnrof the Mobile Bar Mobik upon his discharge co resume bw practice in the field Associationand has distlnguish Montgom ery County 111cMonrgomcryCounry Bar Assocfatioo(MCBA ) held its regular monthly meeting jointly with the Monrgomcry Chapter of die l'edcr:il Bar Association on February 16, 1983. The program forth is meeting w:,s prcscntcd by a live member North Atbntic Treacy Organization (NATO) BriefingTeam wig.ncd to the Supreme Allied Com=dcr /\Ilnntic (SACLANT) hcadquarrcrc.-din Nonolk, Virginia. SACLANT is rhc only NATO hc:idquarrcrs in 1hc United Srnrcsand is staffed b)' some four hundred officers enlisted and civilian pcnon nd from mosr of the sixteen member nations of the North AtlanticTreacy Organization . The prcscnmtionCO\'Ctcd fudg,:0 . T McCall.md Owb S. !'nor (,c;attd,ldi iorighr) •tt '-«I such topics as the establishment of the NATO alliance. its (or 6fiy )"an o( ,c,n,icr ro rhc tw . Al rhc •pcc,J ~ Judg,:McC,JI organization a11dadministration, d,c So,~ct milirary dircar, present«!th< Mot>1lc 8:,rAsscxi>oon (MBA ) lhcoripiul journalor mln~ from MB/\ mccrinp danng b,ck 10 1869, JamesJ. OulTy, Jr., (.,:u,ding) NATO's answer to tlm threat, and rhc Allied Commander prr.sidcntoftht MJ)A,ac,,,pred die i IJ+ Local Bar Meeting Schedules Geneva County Bar Association: Regular luncheon meetings of the Geneva County Bar Association a.re held on the first Mondny of each month at me Chicken lloi< Rcsraur:ull in Geneva. Members of the s't:lte bar nrc in• U.S. Sc:rmorHowell Hcllli, vircd to attend die meeting which begins at noon. 1pc:J1,kt:ac February meeting Hunuvillc·MadiM>n County Bar Association: The o( 1he Mon1gomcry Young HuntsVilk-Madisoo County Bar /\s Mor gan County On Jam,nry 1+, 1983, tl1c Morg.,n County Bar Association convened in the Morgan County District Couruoom for die election of new officers. The new oOkers ekacd for me 1983 u:tm are :tS follows: Miles T. Powell-President Hnrvc:yE.ltod-Vicc Prcsidcnr Kenneth M. Schuppert, Jr.-Sccrerory(f rcasurcr Also, nt chis meeting, Circuit Judge Rudolph W. Slnte ci IJj CLE 'Ne'\Vsand Se1ninars CONTINUING LEGAL EDUCATION OPPOR TUNITIES May l;S-July 31, 1983 LISI OP SPONSORING ORGANIZATIONS Telephone Sponsor Code Sponsor Name Nwnb •J6 June 9· 10. l 983 Chkago--N••' Drvdopmmrs ;,, Mmtnl Htnlrh required to attend nnd repon om:ndancc J..mi,.ASLM Credits: 13. 5. Cost: $200 of twelve hours of appro,cd continuing Oiicago-0'21 1111i=i,W Q,tpqmt< Om1plin11u legal c:du,11tionduring 1982.,unless an Effers. ABANI. Crc:dm: 13 2 CaM: acmption ur waiver "r,as grontcd under s31Cl/members; S 340.'nonmembcrs. other Rules. As • result, personsnot en· New York~"'"' Prottrtwtt mid Marl:trm.9. gaged in die practic:coflow in Alabama, PU . Credus : 12.0 Om : $3SO. wbo dcacd 10 remain members of the June 9· 10. 1981 San Frandsa,.-.C,,m111rricn/ Rrnl Esrmt Laisrs. Alabamo bar :issociarion by paying Sso l'LJ. Crcdi11:: 13.2. C'..o~r: S~ 15. :ummilly, were subjecr to the CLE re June 9. 12. 198?> Boy Point, Florida-A 11111111/Sr mi11nr. AlaTLA. quirement during 1982. Be-ginning this Cost: sH )O/mcmbcrs; SI SO/nonmembers. ycnr, such persons arc e> Clnrifie11tio11 MCLE News c..r1• .,, ______A sratc:mcnrn12dc in d1c Ian issue:has crca1c:dsome confusion regarding rl,e AU lawyers who arc qualified to rome mnuben efA /nl,nmtt bnr AJ. carryover of CLE acd irs from r9S1-82to prnnice law in Alabama and ,,,J,on" sodntio11. 1983. Ir was sr;ircd tl1ot "only crcdirs 1101 mgngrd in nrri1>eprn tritt br.cnme earned in 1983m ny be reported in 1983." rheynrr IJo ldill.!Jtrflle 11rft. demi oj]jtt All lnwyers who are qualified to r./mrprcd 11dt1 r/Jcm from practrci11g prac:ticel aw in Alabru11aand ••hoar e This is nccuratc. A,; provided in Regula /111"m ay become members of the 11ot Nl.!Jngtdin 11,ri,,epmtrict may tion 3.7, every individual should have Alabama b3r nsso.:fation by paying become members of the Alabama already reported all credits c:uncd dur directly to ,he sc:crct:1ryof sucli as• bar association by paying d!r~y co the 5CCl'c:D.ryof such 3SSOClaaonan ing 1981-81,designating credits in excess sociarion ru, rumunl sum equal to 50 of twelve as credits 10 be c:irric:dforwa rd percent of me monC)' col[cctc:dby :umuol sum cqunl 10 50 percen t of the scitc of Alabomo from • bwycr the money colkct«t by the scitc:of for 1983. Thcsc dcs,gnarcd credits have as a privilegeliccmc ax to cngoge in Alabama from • bw1•cr as a bcc:n recorded and wiU appear on the: the:procticc ofbw . Upon payment privilege licensetu ro engage:in the 1983 reporting form os credits carric:d practjcc ofbw . Upon !"e paymCf!t of s.,id $URI 35 prescribed in die prc forw;ud from 1981-82. Indi,~duals will. of s:ud sum :is prcscnbcd m dus croing sentence, such pa-sons shaU d1cn rcpon credits earned in 1983.Any be cnntlc:d to all the: privileges and s«tion, sud1 person shall be cnri· bcndiQ, common ro od,cr members tled tO oll die privilc:gcsand benefits crcdirs in e> ,37 GI'oung GLa"W'Yers' iection J. Thomas King, Jr. President I n the past several months the Young uwycrs' Section has In addition to mock disciplinaryhearings held •t the conclu been active indeed. sion of tlie conference, rhose in attendance were bcndircd at the Friday lwichcon by chc timely remarks of Stntc Sennror L• rry Dixon. Conference of Professions The Second AnnmiJConference of Professions sponsored by the Young lawyers' Section was held at the Shcr:uon Rhcrfronr Hotel on Morch 11- 12 in Montgomery. The pro· gnm , whid1 was planned and coordin21cd by Randolph P. Rca\'ts, YLS immediate past pru1dcnr, was attended by O\'er forty individuals rcprcsc11tingeleven professions licensed in the stnte of Alabama. 11,e program included the following topics nnd speakers: Recent Decisions in Professional Licensing Ltw and The Professional A.ssocfation and the Kcgnlatory Al ti><5c ,)ll monies from the fund which remits payments to lawyerswho Sandcstin Seminar represent indigents. There is n.lrcadyan undu~ dday in chc The Young Lawyers' Annual Seminar will be held at S~n· payment of lawyers who accept indigent nppo1ncmcncs.It ~s dcstin, Floridaon Ftiday, May u and Saturday, M•y 1+.Ca _inc my belief th•t, if this mc:isurc should ever become law, 1r O'Rcar and his commincc have planned :1.11od,croutstanding would have a negative imp:tctnot only on lawyers, but also on program. The theme mis year is ~Anti~ipaccdFuture .~vcl · the tom! administration or the Indigent Defense System. opmcnrs in the Areasof LcgulEcononucs, Office Adm,mstr•· I am mo6t grateful 10 Lieutenant Governor BJU83:- 119 1ng or the changmg of policy in the along wath the rcccnr legislation and criminal justice nrena tho1ni n r;hc pasr. ,ourt decisions rclnccdthereto. ( me rcxt The ·n,c Anomc y General's Task Force 0 11 of each of these recommcndarion• is set Viokm Cnmc is~,cd the1rfinal report in forth 3J the condusion of this anaclc.) August 1981 ,1-.dchat rcpcm "~II be die Criminal basis for future legislation concernins the insanity JefcJ1Sc, die exclusionary rule 311dhabeas corpus 3Ctionsas well a, Insanity Defense other subjcas . The Reagun administn · (Rccommenda .tion 39) Justice tion has, as• m,ncr of policy, adopted many of the rosk force 's rccom · On April 14, 1865 President Ab mcndations as o port of itS legislative raham Lincoln was assassinated b)• John System program. Wilkes Booth. Twcl,-c:days later John The Attorney General's Task Force on Wilkes Sood, was dead. On July 7, Violcm Crime wns appointed by U.S. 1865, four of Booth's conspirorors were A New Policy Attorney General William Fren ch hanged . The period from cri me to Smith. He irutn1acd them ro recom punishment was less than 90 f.40 chologisr.s. If either of these disciplines stantial capacity rest invites. Perhaps it is rence of improper police action. How · were as exacting as mathematics , perhaps time to abolish die insanity defense. So ever, many foci rhar the exclusionary rule there would be no fear. However, the ciety has an obligation to protect irsclf has only been used ro achieve a benefit substantial capacity test invites the use of from the funtre criminal activity of those for those acmsed of crinle. Justice Car S<)n,ev-:.tgue be havioral ex,aminations, whose defense is based on some type of doza's statement "The criminal is ro go opens the door for increased testimony behavioral pattern. If the mental stanis free because the constable has blun for jurors to stmgg le with, and encour • of d1edefondant is to be considered, let it dered" has become the law of the land. ages the util.ization of the insanity de be after conviction . If a defendant raises The task force concluded dur the fun fense. the issue of mental responsibility in the damental and legitimate purpose of die The Attorney General's Task Force pre-sentencing hearing, then evaluation exclusionary mle has been eroded by the has recommended the adoption of and treatment in such a manner as is action of the courts barring evidence of legislation which wou.ld create an addi psyc hiatrically indicated wou ld be d1c truth because of investigative error , rional verdict in federal criminal cases of proper. This is d1e same optio n as is however unintentional . In support of "gnilty but mentally ill." lllinois, Indiana a,•ailable w1der d1e recommendation of rhis conclusion, the task force has rec and Michigan have adopted such legis chc cask force io relation to die verdict of ommended a good-faith exception to the lation. 11iis alternative would give the "guilty bur mcntal.ly ill." c.xclusionary n ~e tO die extent diat, if die jury the option of finding d1at a defen This recommendation is a step in the law cnforccmcntoffictr acted in reason· dant was in fucr mentally ill, but would right direction and perhaps dii.s new op· able good faidi, he was in eonfom1ity require d1at he be sentenced rather dian cion will cvennially find favor in our with the Constinition, and the fruir.sof go free. These stanites provide for evalu· system of jurisprudence. At least until his labors would be admissible. This ation and treatment as is psychiarrically the insanity defense is abo lished the proposal, if enacted into law, could indicated for die mental illness. "gu ilty but mentally iU" altt'rnat ive has eliminate much of the criticism bt.-cause This reform is logical, long overdue merit. there would need to be an 1mre11S011able and in the best interesrof society. At least intmsio n raclier cl1an a technical intru in three stares, and perhaps soon in the sion concerning Fourth Amendment federal system, the illogical defense on Exclus ionary Rul e rights .inorder coe.xcl ude the fmir.sof the die basis of insanity will be less effective. (Recommendation 40) searcli. The stantte in lllinois and Indiana both 11,c c.xdusionary mlc is a phcnome · The concept of d,c good fuith cxcep· still retain the optional finding of nor non peculiar to American jur ispmdcncc. tion is not only embraced in the cask gn.ilty by reason of insanity, hence, the The rule p(Ovidcs thar evidence, regard force opinion , but it has also received reform merely affords the jury an addi· lessof how relevant or material, cannot judicial attention. The Kentucky Coutt tion al option and docs nor eliminate the be used against a defendant in a crinlinal of Appeals in d1e case of Rith111ot1dv. insanity defense. trial if obta ined in a maruier which vio Com1t11mwealth, (80·CA· 1366·MR, Ky. lates his or her constitutio nal rights Cr. App. July 31, 1981), adopted a Perhaps it is time to abolish under die Fourth Amendment with re· good-fa ith c.xcepcionto die exdus .ionary gard to search and seizure. The exclusion· rule. In that case a Kenn1Ck)• magistrate the insanity defense. Society ary rule is a judicially created nJc which issued a warrant for a search to be con· has an obligation to protect seeks ro deter police misconduct by ex· ducted outside his own district. The itself jrf»n the future crimi d uding from evidence the products of court of appeals decided that application their labors if they have fuilcd to comp ly of the exclusionary mle would do noth nal activity of those whose with the mandates of the Fourch ing to deter furdier police misconduct. defense is based on some type Amendment. The Supre me Cou rt Hence, if no deterrent effect could result of behavioral pattern. adopted the exclusionary nJe for federal there would be no reason for the appli courts in Weeks v. Ullited States, 232 cation of the rule. The majority opinion U.S . 383 ( 1914). Forry-seven years later reasoned: Aldiough the recommendation of the in Mappv. Ohio, 367 U.S. 643 ( 1961) , T he deterrent effect of rhc task force has merit, it does not go far the Sup reme Court consrn ,cd the Four· exclusionary rule is somewhat sus enough. The criminal justice sysccm de rcendi Amendment as compelling appli pect in view of die myriad casesin which the conduct sought to be mands absolutes while the behavioral cation of the exclusionary mlc to the deterred is, in fucr, not deterred . sciences operate in a contingency and states. While ir.s dete rrent effect upon probabil ity environment lacking scien· The exclusionary rule has been subject willful and unlawful pto deter un· Gnr4,5 r USLW 1123 (Feb. 15. 1983), the reasonable, ihough misrnkcn, belief that thc_y were nuthori7A:d. reasonable conduct by rhc police rather may provide a much needed cxccpuon ro lkcJusc ~n officer who aru rca· d1nn reasonable, good fuel, acti,.itil'$. the exclusionary rule. sonably ond in good f.iith doc.,snot l11ecoun noted rhat when d1ereason for rcali.<.en,s actions nrc wrongful we rhc rule docs not CJ1ist then ill>applica• can 110 1 expect thM his conduct lion should cease. would haw been nny different he· cause of the exclusionaryrule. This opinion di.scusscscite c.~clusion· ary rule considering born che tcchnical Habea s Corpus The exclusionaryrule was designed ro violation and 1he good-faicltmisrake as· (Recommcodatioo 41) deter imprope r police conduce and peers ciring supporting nmhority for "I11e problem in this area hns thereby clfecruarc the guarantee of the both exceptions.Th e majoriry discussed long been dear. Considering the Founh Amcndmcm ag.iinSt unreason• severalIC2ding Supn:mc Coundecisions ava,labilicy of l111bt11Seorpi,J in able sc:ireho md sci7Aln:s. llccauk the and lower coun decisions supporring 1970, Judge Henry Friendly was c.;dusionnry rule b primarily aimed ac moved ro paraphrase Winsron these exceptions. Ln conclusion the Churchill. He noted that after State dcren·ing police misconduct, it seems ii· opinion stntcd: trial, conviction, sentence, ar.pc;,1 logical to npply it in instances where the 1 Hcnccfonh in tbis cimiit, when affinnance and denial of cenioran police believe that they :ire acting prop evidence is sought to be cxdudal by the United Staces Supreme erly when their activitieslarcr rum out to because of police conduct leading Court, the criminal process was be improper. If the police have reason m ics discovery, it will be open ro nor at nn end, or even the begin• ning or the end, bur only the c.na of able belief based on "Jl objective view of the proponent of the evidence tO u~c that the condUct in ~ucstion, the l>c:ginning.There were neuly tbc circumSC111ccselm they arc acting in ir mistal:.cnor unaud10riial, was 7.800 111,beasfilingl by =re pris· accordancewich Ilic Founh Amcndmenr yet taken in a reasonable good· oncrs in federal eouns in the yc.1r Ulen tl1e fruics of their scnrch should nor fairl1bdicf rhatitwas proper .lfthc ending in June of 1982. COll rT so finds , it shall nor aeely Ul C be suppressed. Judicial review hindsight -William French Smith may be 20 ·20, but applying the exclusionaryrule to the eviclcnce_ Jon. 30. 1982 aclusionary rule in inst.tnccsof n::isoo Thus the United Stares Court of Ap· able good faicl1reliance by the police wiU peal$for tbe Fifih Cirruir has established do little in ccm1sof deterring miscon· a good futh exception to the cxdusion· 1-1,crn. petitioner stands coovicted 1 and friction is a likely rcsulc. TI1c long line of our cases previously re In mis decision the Supreme Court ( 1981), d1e Supreme Court r1.-affim1cd ferred 10 acccpced chac frk:tion as supported me congressional mandat e by the mandate in §2254 requiring d1e total a necessary conseq uence of the acknowledging tliat the pctitioo cr must exhaustion of scare remedies. 111eCo111,: Fcde.ral Habeas Act of 1867, 28 establish by convincing evidence., not by noted mat if sud1 action would be futile U.S.C. §2254.Bu t itisdeardiatin a mere preponderance of me evidence, adopting me 1966 amendments or if there were no opportunit y ro obraiJ1 Congress in §2254 (d) inrended that d1e factual determ ination of d1e rel ief, federal habea s action is a11- nor only to minimi?.e d1at inevita state court was erroneous. ln addition, d1ori7.cd. 111c court also addrcsst-d the ble friroon but to establish mat me the Couri: cstablishcxl me requirement rotal exhaustion rule in Rose ,,. L,mdv, fu1clings made by me stare court that the habe as courr include in its 455 U.S 509 (1982), wherein the system "shaU be presumed to be correct" unless one of seven con· opinion granting me writ d,e reasoning majority again upheld this concept star· ditions specifically set forth in which led it ro conclude which of d1e ing d1at such a rule promotes comity and §2254 (d) was found to exist by factors listed in §2254 (d) were present. docs not impair a petitione r's right to the federal habeas cmcrt. ln .D11clrn10Ythv. Serra110, 4 54 U.S. I relief. Tbe Alabama LA,.,,,,. .., The Supreme (:()Un has rcccmly ad trial, habeas actioru m~y diminish those fin2liryon cnmin:tl litigation ;ind ke lt co droscd the "o usc and prejudice" rule safeguards, (4) habeas aaioos lrcqucmly cst;ablish• degree of uniformity agauur cst:iblishcd in IVaina.,;gJ,tP. S7lta, 433 cost society the right to punmiadmitted whid1 10 m=ure coll.atcralattacb. Un· U.S. 72 {1977).Jncwocasesdccidcdthc offenders as the pass•ge of time. erosion less the proposed lcgislauon 1sci1acR-d, samcd:ty, chc(:()ll,udopr~-d one univer of memory, and dispersion of witnesses the fc;dcralcourrs system will ronunue co sal rule concerning collntcral nrrack may render retrial diffirulc and even im be inund•rcd with duplicitcd , ovcrbp· b:,scd on borh state and fcdcrnl co owic· possible, (5) habeas actions impose spe ping and repetitive reviews of swc rourr rions requiring d1c defendant LO show cial cosrs on the fi:dcr.11sys tem, (6) fed· convictions, prolonging the quest for Ji· masc nnd ncn,al prejudi ce in order 10 crnl iorrusinn inco srntc criminal crials nnlity. perfect fedcrnl hnbtas action. frusr:rntcs the st:ucs' sovereignpower ro 01icf )1micc C. C. Torbcn , Jr.. of the punish offcndcrs ru,d (7) finnlly, fedrral Supn.111c (:()Un of Alab:una n.-ccntlyad· In disCU5Singthe use of the writ of habeas acrions cnct an am ch:ugcby dressed the o\'crly-bro'1dapplica tion of habc.is corpus, Justice O'Connor made undrrcurting the srarc:'s•biliry to enforce federal habc:is action staring: the foUowingobservations in the nujor irs procedural rules. ·1ncrc :in: d10$C that ,rguc dm iry opinion in En9/e P.hmrc, t 02 S. Cr. µmiti.ng federal habc:is corpus is 1558 {1982): ( 1) collarernl review of It must be noted that the companion ,mp:unng :i grL-:it concept of our conviction extends the ordeal of trial for decision U11irctfSrnus v. Frndy, I 02 law. This is not so. In Ince,we will be renaming ro n lc~I remedy borh society and die accused, (2) both S.Ct. t58 4 ( 1982), was rendered nine· much closer ro the original lionirs d,e defendant and society have nn inrc:r• teen years after the orib>innl conviction, of the writ which has been grcady est in insuring that there will ar some and in d1c E11gltc:asc 11<.-vcn years bad di$tnrrcd in its cnrcnsion. Only point bed1ccat:unrythac comes wid1 an passc.-dsince convktion. Both of these thcn will habeas corpus be what 11 end 10 litigation and by frusmting dicsc decisions and the Others cited herein, w;is intended, an cxrraordinarr. writ to be utilized on occ:,sioo;il intrrcstS, the writ undermines die final along with the u~k force's recom· Jbuscs of our sysmn of justice ity oflitig:,tion, (3) rathrr than Now you can get Yearly Rcncwublc Term (YRI') life IBRM LIFE 11,surru,cc protcctlon at reduced mrcs. 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OMdcntlBw ·c riot guamnleed REDUCED and dcpcurl 0 11 future plan experience. • t •++ A Convenient , Up-to-Date Reference ALABAMA RULES ANN 1~!~1TATED Alabama Rul es Annotated , 1983 Columbia. Law publishers since 1855, Edition , provides a conven ient reference The Michie Company has become one of source for the practitioner. Up·to·date the nation 's leading pub lishers of state through January l, 1983, it contains all codes. legal treatises, hand books and rules promulgated by the Alabama casebooks. Supreme Court. with complete annota · tions . as well as federal circuit and district $25.00* Appx. 900pagcs.durablesoltbound ©1983 court rules with an notations to cases To order you r copy. contact ou r sales arising in Alabama. An index follows each representative or use the coupon below. set of rules. Th is guidebook is designed to minimize resea rch and save valuable time for the practicing attorney . ==THE======~ MICHIE COMPANY From the Publisher of the Code of Alabama ~ JAMES R. SHROYER The Michie Company. publisher of the P.O. Box 717 Code of Alabama. publishes state codes Pelham. Alabama 35124 for seventeen states and the Dist rict of (205) 326·9899 r------,THE "ITC, HIE COMPANY 1YU ~ P.O . Box 7587 Cha rlottesville. VA 22906 (804) 295·6 171 Name______D Pleasesend me __ copies of Alabama Rules Annotated. 1983Edition . a, $25.00' each. I under stand tha1 l m'ay re,um my purchasewi1hin 30days Address ------if not completely satisfied. D paymen, enclosed ______Zip ___ _ D bill me, plus shipping and handl ing L------·ptus shipping. handlingand .53les tax where:ipplicablc i\L38J Perhaps more importantly, the Supreme Court expanded on the rationale for a notice rcquircn1cnr, stating th:1rnotice should "enable the seller to make ad· jusnncn ts or rep lacc:n,cnts, o r . . . suggest oppom tnitics for cure, ro the end of minimiziog the buyer's loss and reducing the seller's own liabiliry to rhe buyer." Previously, the court has scared d,ar nodcc is \(to appriset he vendor thar a claim will be made against him and give him an opport unicy to prepare a defense or to notify his supplier." Joi,11M. Milling, Jr., n member of the Da,,id B. Byrne, Jr., a member of the Montgomc,y la111ftnn of Hill, Hill, Caner, Montgomerylaw fimt of Robison& Reim; Fnmw, Ol e & Black, rccei1>edl,i., B.S. I'A. , receivedbot/J l,i., m1dergr11d1111tede Commercial code ... degr The Alaba111nUf11,yrr 1.+7 tlm fish unfit tor humm consmnpnon alier, claimant filed suu md claimed Recent Decisions of the or unn:3SOnablyd>ngerou s. these sums as damages. Defrndant pied the 1dv.mcep;,jmcnt< and$<:1·<>1Tand the Supreme Court of coun reduced tl,e 1udgmcm by thal AJaban1a-C ri.minal •mount. PlainrifTa 1>1'1Calcd and argued Fictitious partie s ... tha, previous Afahama nudmricy limited a cause of action must be stated credit for advancepayments rosinaacions A bargain is a bargain where the parties had •greed dur the Co/11111binEng111tm1tq lmminritmnl , ~dV3Jlccpayments would be credited to r nrl1trr. S1atc, 17 AB R I ? 54 ( March ltd ., r. JoeR« Espt:;,.1- ABR 100~ my subsequent settlement or 1udgmcoc. I, 1983). ln 3 caseOf first 1mpn:ss1on, (Fcbrnory• 8. 19113). In tl11Snxcnt case, TI,c Supreme Coun d1songuishcdthese rhe Supreme Coun of Alabamadecided 1he Supreme Coun noted rhe cunfusion prior authorities ilt3nng rhar in the ab the question or whether a defendant can 1h at exists throughour rhe bar concern· senceof conducta .1nount1ngto ,vaivcror compel the enforccmcnrof• plc3 agrce mg what • ploimiff must allege in <>rdcr fraud, defendant 111usrmerely raise d,c m"nt, hrokcn by d11:_stare, where he had ro invoke the rdarion•back principles of is,ueof crcditprior m1, rduring chc trial. not yet pleadedguiltyoro,herwiscrc licd Rules 9(h) and 15(c) ARCT'.The coun In 1hi~ Cl$<", defendant procedurally on d,c agrecmem m hi< disad,-anr.age. ir.ued that • plamtiff mun : ( I) state a raised the issue in 1r~ an~, er and is enti The di.strict attorney'• office withdrew cousc of oction agJmst the fictitious tled to credit upon proper proof. the pie, bargain agreement because of party in d1c body of the original com· rite srrong objections rniccd by the ,~c plaint; and (2) be ignorant of the idcn· rim's family.TI,c record is clear tl1at the ti1y of the fictitious parry, i.e. have no Srare's withdrawal of the pk"' bargaii, knowledge •t fJjng elm the party was in occurrc-dprior ro the rime d1at d1e de MaJidollS pro secutio n ... fact the parry imended ro be sued. Ruic fendant entered hi< plcn. nollo prorequi meets "favora ble 9(h) is nor intended to gi.-e plaintiffs During the course of a pre.trialmonon disposition" rcquisi rc additional rime beyond the srorutc of heuing, the tri.tl coun concluded elm hm1racionsto formubte cause The Alab1u1111U11JJJtr 149 maindcr of lhc full tam . Thcl'C'" from Ille psychiatrist.In rcv«sing, th.c Eminent d om:1in • •. fore, that :upc,a of this petition be:· Supreme Court adopted die racionaleof date of taki ng determined cnmc moot. .. the Eleventh Circuit 111 l'rvffirr,,. Wni11- RosieLet Bms/Jcr,,. Tbc Wnttr Wm·ks, 1vrlg/Jr, 685 F.2d 1227 ( 11th Cir. 1982) Semtr m,d Cns Bonrd of Ciry of Chil which addressesthe issue of the right to denburg , Civil Appeals No. 3390 (Feb cross-examine adwrsc wicncssc.sin op · rua.ry 16, 19R3). In an appc,•Ifr om :m Death case • . . ital scnicncehearings . 'The F.JcvcnthCir · defendan t's right to rebut eminent doimin asc. the coun of ap cuirheld thardcathscntcnccsmay notbc: pealsheld d131the date of entry 1s rbe Willie Qisl,y, Jr. 1•. Srau, 217 A.BR imposed on rl1c basis of information "dare of roking~ where it is established 900 (February 11, 1983). Willie Clisby, which the defendant hns nor been nblc co thar the condenmor entered the propcny Jr., was indict<-dand convicted for the rebut. TI1c court in Proj]itrwentt on o with intent to rnkc the prop ,,, were tired. Missouristatutes provided :in seek and tl1etrial court or jut)•ma7 Jeopardy clause has independent •dduional penalty when a de•dly i111posea,,nullttii•t punisJJn1111t ,,ntUT ronient-tha r rwo crimes thu do not ntdJ Slatllt(1 j,i II Jmq/t trial. (Em• we•pon """ usedin the:,commission of plwis added.) ~ sorisf)• the Blodl111rgtrtcit conmrute rhc offense. The defendant was scn Mthc511111e offcosc" under die double ccnccdto ten years for tlic robbery and J Ustice Mar shn ll joined b)• Justice jeopardy clause regardless or the lcga<· fifteen years for his use of • tlc•dly Stevensentered n srrong dissent reason· larurc's intcnr to 11Tatthem as separate weapon in the commission of an oAi:nsc. ing that in the context of multiple prose• ollc:n~,. Ot herwise, multiple prc,,ccu· On appeal the defendant raised rhe cucion, the lnw is clcnr thnt die phrase, tions would be permissible whenever defense of dou ble jeopardy; the Mi=uri "t he sam.- offense" in the double nuthori1.cdby the lcgislarurc. O Suprerne Court reversed the armed criminal action conviction bc.-c.iuscof the statements of the Supreme Coun tb.tt the doubk jcop3rdy clausealso "protectS ag•msr multiple punishments for the same o!Tcnsc,"citing NurrJ,Orro/i111t v. l'tnrtt, 395 U.S. 7J 1. 7 17, 89 S. Cr. Imagine: 2072, 2076, 23 L. Ed.2d 656 ( 1969). A You're about to erect a divided Supreme O, urr vacntcd nnd tC· spectacular new office tower . mandcd. Chief Justice Burget, writing for the majority, noted that the Missouri There 's just one small hitch . Supreme Court had mispcn:eivcd the nature of dte double jeopardy clause's The site for the monumental new office building seemed protcxcion •g:iinsr mulcipk punishment perfect. Except for one thing. The company preferred not to and poimcd out with rcspc,ctto cumub· have a tra in running through the lobby. rive sentences imposed in a single trial But a railroad held a right of way across the property. and tltar the double jeopardy clause docs no train tracks were scattered over part of an otherwise more d,an prevent the sentencing court picturesque scene. A number of other problems threatened to frorn prescribing greater punishment shatter everything. than the legislature intended. They didn't. Because Commonwealth worked with counsel and representatives from the railroad. the city and the In H11llfer, the Miswuri Supreme company to keep things on the track. So the building-instead Court had construed the two srarutes at of the 5 o'clock express-arrived right on schedule. issue.as dc:fining the same crime then:by Whether your project is an office building that·s triggering die Ptttrtt ruionak, bm the stretch ing skyward. or a single·famlly home tnat·s sitting Supn:mc Court in rcj«riog that legal pretty. call Commonwealth. Our service really can make conclusion S1'.tt cd: a difference. We turn obstacles into opportunities . Where, as here, a lcgislarurc spc· cific• II)' •u thorizcs cumu lanvc pu11ishn1cnt under r,vo statutes, U COMMONWEALTHLA ND' regardless of whether those two Iii; TITLEINSURA NCl COMPANY srarutcs p111scribc the "same'' con· ...... c:.-._, Comp,ny duct under Blodtbu'l]tr, • .;ourr's 164 St. Francis Street . P.O. Box 2265 rask or snrotory construction is 31 Mobile. AL 36652 , (205) 433-2534 an end and tlic prOS<,-aJtormoy SMITH-ALSOBROOK & ASSOC. EXPERT WITNESS SERVICES ·Machine gunrdlng ·Traffic aecldon1 The John Archibald Campbell United States Courthouse in Mobile David A. Bagwell Bystarutc pa=! on December29, lcgislarurc from Montgomery in 1836, I 853. ar d1c age of only fort)•-onc, 1981, inrrodu=I by Congr=man Jack he 1nov,-d to Mobile in 1837 to seek io Campbellwas appointed to the U.S. Su· P,dwards, Cong~ named the Federal build a more prolir.1blcpl'llCtKC. pr1:mcCourt and was conlirmc:.dwithin Courthouse in Mobile the John four days. Campbcllfonncd a 13wparmc'r.lhip in Archibald Campbell United $rates Mobile with Daniel 01:mdler (whose The northern press, though quite un· Courthouse, nftc_rJu stice Campbdl of easy about d1c position of the new home is now used as a low office by Mobile, one of onl)• three Alabamians sourhcm justice on the sbvcry question, Mobile lawyerDonald Briskm:111) which ever 10 serve_o n the United Srntes Su· was fulsome in h:s praise of Campbell's continued witil his appoinancnr to the prcmc Court. The ocher two Alnbami:111s character and ability. One New York United $rares Supreme Court. In 184·1 were Justice Hugo Black, who served paper said: he wa.sagain dcctcd tO the,srntc lcgisl•· from 19r to 1971. nnd Justice John rurc (this rime from Mobile) :llld was McKinky. Justice Campbcll's im· 1-1,sprofcssion:ll learning is ... mediate prcdcccssor, ,vho served from twice offered • SG1ton the Alabama Su· v.,sr, :llld his indlllitry\'cry great. prcmc Court whid1 he twice declined. Oucside his profession he is most 1837 ro 1852. libcrnllycult ,vatcd, and in tl1is re· C1111pbcU's c.1n:cr was n varied one. John C1mpbcJIhnJ an cxrcnsivcU.S. speer ranks beside Smry , .. His After graduating from m llegc ac d1cage Supreme Court pmcticc, having argued mind is singularly analyticnl. of fourteen, Campbe ll moved to six cnscsthere during tl1e 185 1·52 cc_an AddL-dc o all and crowning all, his Montgomery, :111dwas :idmined to the ••• I It ~ chock full of r:ilenr, genius, ... A lcnmcd jurist and a faithful with nmplc time to prcp:irc. He argued a industry and energy •.. For the jud_ge, who during the entire number of Supreme Courr cases, the lasr rcn years, he-has been de pcnod of his ollicial scnice has il ll105t noable (which he lost) were the servedlyat the had of the Alabama lusmucd the qualities which mUSf Slnug/Jrrrlxmsr(',tlSIS, 83 U.S. ( 16 Wall.) Bu . . . cxcc..-dingly popubc, and ade>mdie cxaftcd ~tion he w:,s as a jurist and a man commandsthe called m fill, and who, in his r~ 36 ( 187 j). ln one C3SCfive justices said respect and confidence of tircmmt, will c:in-ywith him the rusargumcm \\'~ rl1ebest they had hard e,·tl)'OnC, admiration of his countrymol, during rl1circareers, and C;unpbcllw:is later clOC'l~-dchaimian of die Bar of the The Amrritn11lnw Rrgister said that In J 862, Confederate Secretary of U.S. Supreme Courr. Campbell was kan CJ '" Basic Client Relations A Primer for Avoiding the Unintentional Grievance Gary C. Huckaby G111yC. N11ckaby, a.parttttr i11the lnH!ftn 11ef S mitb, Huckaby& Gm11<1,l' A. , i11 H,mtsville, rcttiredhiJB.A . a11dLL.Blk9rea~m t/;e U11i•miryufAlabama. H11ckabyiJ n nrmthtrt(t/Je Boardof0,1mnissi011m o{theA/nha mn S1111 T he darkest day in a bwycr's career Once the client has decided to rtt3in dcrstand that they will be charged for the occurs when a letter arrives from the the anoniey, the employment contract time spcm on the telephone. grievance commincc. Unfortuna cdy, should be reduced co wriring. 11iis does many disciplinaryca.s..-s involve un.inten· not necessarily mean a comp)<:.'(contract tional violnions of the Code of Proli:s· bound in a ~blue bad" covcr. A simpk We often presume that the sion31Responsibility, most of which :ire letter from the lawycr to the client, prcl"· client 1tnderstands the me a,•oidoble. erably ack.nowlcdgcd by tl1c client, is It is to d,c credit of the profession that sufficient in most cases. The contract chanics of lawsuit or otl1er ir has rnkcn upon itself the highest code should :ilways include the cerms of pay· legal matter and Jail to in of conduct for the members. In spite of 01cnt of fees and expenses. fonn bi11ior her of what is its idcalisrie,aspir.uion31 tone, the Code M•ny laW)'d$ Sttm to feel thac they of Professional Responsibility is hardly can unilaterally ,vithdrnw at will from bappening in a fann that he the kind of rending thnt busy lawyers the reprcscnmtion ofa dicnr. As a matter ar she can understand . tum co in their spare time. It is impossi· of contract law this may not be the case bk in an article such as this to com· unless the client has breached some pro· prd1ensivdy m:ac the disciplin:uy code. vision of me contract. Thus, the client le can only be hoped tlinc some of the should be obligated in the •grecmcnr ro recurring problems can be discussed. cooperate with the a1rorncy in pro· During dtc Representation securing tl1ccase and to p•y the fees and Communication is the Key expenses on some spcci6c conditions. Such agreements pro,~dc an anomey The $inglc most prolific t0urcc of die A Good Start with • basis for withdra,...-JIif the clicnr unintentional grievance agn.instlawyer$ fails co live up to bis or her side of clic is a failure to communic:uc wid1 the The genesis of a diem problem is b:irgain. client. ·n,isshou ld be the iirsc rule in often found or the first interview with Acromcy Icesobviously lead to a con· .very bw office. We often presume that tl,c attorney. In an ad,-c~31 matter, sidcr:ablcnumber of gric,,anccs. Cl.ienrs the client understands the mechanicsof a the client may reach the lawyer's office who have had little prior experiencewith lawsuit or other legalmatter and fuil ro filled with indignation againsr the op· a lawyer usually fuil to rccognb,e tliat • infomi him or her of whar is happening posing party a11dwith inflated c.~pccro· subst:>ntial portion of the fee goes for in a fom1rJ1nt he or she can undcrsrnnd. tions about the redress he or she expects office space, sccrcrarial help, library, ldcally, a client should bear from ltis from the leg.tisy.-rem. Though • lawyer continuing education, cte . A candid ex :momey at l<:ISC.very thitty days, c,·cn if may be tempted to ovcrsmc what is ob planation of tlie basL lj6 ,-.c. 11,t, nor only keeps the diem in· • Domestic relation s cases. The ings, complex cdlical questions .i.bout fonncd. bur it dcmorumu:cs the work domcscic rdacions cases first come to eon01ru of ,merest arise. We Stoll >« produa . A cover lc:ttcris unnecessary. /I mind. In mcsc mmers the parries arc insranccs where good lawyers umnrcn· rubber 5runp bc:uing-For Your lnfor emotionall y involved and mey have rionally, ,,olatc Canon 5, wh,ch requires mmonn .md the ano rncy's name serves compc:ciogimcrcsis whkh do oorpc:nnir a fawycr to refuse cmplormcnt when his this purpose very well. A short, hnnd· a solution acccpr.tble ro either side. In independent judgment will be imp:urc-d. written note from the lawyern dd$ a per· such cases it is basic that a lawyer un Special problems arise when • lawyer sonnl tm,ch. equivocally dcclnre which side he or she i~ involved in a bu siness as both counsel Some members of the bnr argue represents. and investor, shareholder, olliccr, or di· agnin,r ,uch a practice, saying 1hat it Sp IJ? Though he will seldom bl3ramly pro Failure to do so ofttn triggers a gri"' '· lawyers so metime s ove rlook . Dry pose such •tthity to his l2wycr, he will ancc . though it may be, the Oxlc should he rcq11cstthat the documcnrs of transfer be By no means is this nrticlc a com · read in ics enti rety by every member of drawn by the •ttorncy . When the anor · prchcnsive rrcacmcnt of the Code of the bar. A greater sensitivity to the can· ney has knowledge thar sud, a transfer is Professional Responsibility . The rules oos of cthu:s will keep the good uwycr ilk.gal or fr.audulan ., he mU5r rd\Jsc:to rncotioncd arc simply tllOSCthat good out of trOUble.O pcrfonn the legal work incidental to it [DR7· I 02(A){7 )]. MEDICAL MALPR.ACTI CE PERSOUL INJURY. PRODUCTUABIUTY . WORKMEN'S COMPEJISATIOH. AHOOSHA Withdrawing From ~ hJrl Ccftll et M~u.t [Qflltl 111.11c,t,:ull1n .. 1.-1C.o PSI AIU.1111,1••-.w Oocb-1 . 01~-,1a, . latGeo;is Sp,cutnll, 01nf.l~ , Ch!ro,, 1n11r1 Po1:U1Crt1U . Rwlifl Ht1;.,;1J1AO'Mnl11tflon . fa11ta t;!fl1 . 1llil ln;tnttrti ui An R cprcsenta tion S:i1e1,11111 All pr1111r1s.i;nul •rlt1111rtports ind l11Vtr t•1t cl •T1n1nrtpottt ht re, 11rwt• $.COOtu MOOC onu,;nnq.· IHI" 110C011 or S1MJ. r11111u .t lpprv.~ t1!1lntr IOft·.,..1111- -:,:,Uon1))EJ,1111 ".:.u11.ntud 111,ITT ·IIICf 10:1 CUii Elpcir!lflut: I fU'1 MCIdotO CUii ,,u:I! 11ii¢1ont CNllllliUQ\'1 • !0 • 1\t•dlttl lhfft'IOt lou l All~,n•rftt ·l1,u:11 Every prnccicing attorney ar some fRll l11tUllltl! umptl " ' "' r111om.Ind Mtd"it.JJ.lttJ l IOOIIh ou,Mt dlUI 01r1c10, M\ll l.otl'#O!d0, Mth~• 841U point finds it necessary to withdraw The Medical Quality Foundation from a case. At times die attorney has TheAm ericanBoard ol Medical-legal Consultants misoonccpnons about his pmogativcs . , 1&01Fo•clO•• Road . R11ton. v1,v1t1U:noo1 As mentioned above , unless the client TOLL FREE 800-336-0332 has violated the emp loyment agreement W1 d ,V 11.!CCflstl/ulb.C The Alabama Stare Bar Boardof Commissioncn met on cmin-1;Admission. Professor Hood is a F.iculrymember at Friday, February 2s, 198J, at State Bar Headquarte rs in the Cumberland School of Law 11.ndhas met il1c require• Montgomery. ·me following nccions were rnkcn: mcncs for admission under Rule IJJ. His application had been approved by the Character ond Fitness Commirrcc, l'and r. Commissioner Ted Toylor moved thnt Professor Hood be admitted under Ruic TU. TI,e morion was seconded by Commissioner Hucl Love and approved by unanimous Electi on of Commissioner voice vorc. Following n tribute ro the lace Albert W. Copcl•nd, commissioner for 1hc liftecmh judicial circuit, President Norborne C. Scone, Jr., norcd thac a vacancy cxi«cd on 1he board due to die death of Mr. Copeland. Under the rules of !he commission, the commission is Travel Pro_posals for 1983 cha~ed with die election of a commissioner, from die judioal cin:ui1 in which the vacancy cxim, 10 fill the ur1ex Mr. Hamner then presented for 1he board's considera pittd rum. Mr. Copeland's rcrm would have expired tion a prooosal from INTRAV for the bar's sponsorship of June JO, 1983. a "Dutch Waterways Adventure.'' TI1etrip would operate As is rusmmary, the ad,~ce of the Montgomery County "~d, both Birmingham and Montgomery dcparrurcs on Bar A. Legal Services Corporation MCLE Commissio n/Exec utive Committee Commissioner Huckaby, co-cl1airm:mof d1c state bar's ln view of Mr. Copeland's dt-ath, there also existed vnc· committee on private bar involvement in rhc delivery of ancics on the Mancb1ory Continuing Legal EduC:Jtion legal services, spoke bridly regarding actions rakcn &y his Commission (MCLE) and the Srate Bar"l;xco,tivc Com· commirrcc in seeking ro rncouragc private oor imio!Vcmcnt mince. Rich•rd Gill of Montgomery was dcetcd 10 the in the sia1e of Alabama in ihc delivery of legal services. MCLE Commission and A-Philip Reich ll, was elected tO Commissioner Huck.air,•recommended thn !he bar become the Executive Committee. Both rcnns wiU expire !his more involved in the planning ph:asc such as ihc pro bono summer. program of the Montgomery Counry Bar /\ssociation. He funner encouraged the bar to pursue i!S srudy of interest on "1wycrs'rrust accounts as a mc,ns of furrlicring the dc· livery of legal services. He n:mindcd the board d1at an op porruniry undcr federal srarutcanow presents irsclf for die bar to rnke the lead in tl,c delivery of legal services. Rule m Admissio n ln addition ro Commissioner Huckaby, Wayne P. Turner Reginald T . Hamner, secretary of the Alabama St:ite Bar, of Montgomery, one of the d1rce members oppoinred by presented the applkation of )ad( Brian Hood for nclmission die Alaban1a State Bar to die Legal Services Corporation of ro rhe Alabama Srote Bar under Ruic fl f of the Rules Gov- Alabama Board of DiJ·ccrors,rev iewed n stntus summary of private b~r involv~mcnta.~. mandated by the Legal Services f9r exemptions whid1 arc being addressed by the commis O>rporn11on fund,ng rcqwrcmcnts. s,on. The regulation became effective the last gu:u-rcr of 1982. ·n,c Alabama private bar involvement requirement was S102,700. The expenses to date were summarized as being S223,689.11 1e 1983requirement will be $410,800. Mrs. R.andye Rosser, the Montgomery attorney operat ABA House of Delegates Report ing the Montgomery Cowuy Bar pro bono project, made a brief report on the project and nored that it was initiated Commissioner Gary Huckaby, one of rwo A.BAHo use with a gram from the American Bar Association and has of Dcleg:i,es members elected by the Board of Commis been continued this year with fl.difimding from die Leg.ii sioners, ,mde an interesting and informative report of ac Services Corporation of Alabama, lJlc. ci_o~sof the House of Dclcgaccsof the American Bar Asso President Stone advised tl1e board thar under new rc caaoon. qltiremcnts the commission would shonly be asked co The ABA House of Dclegat<'S mer in early February. Mr. nominate persons to serve on the stare board fulfilling the Huckaby covered numerous items of interest including chc requirement that over half of the Board of Directors of the postponcn1enr of changes in d1e Model Code of Profes Legal Services Corporation of AJaba.mabe appoitucd by sional ResponsibiLiry, a,e position taken with regard to the the bar association. He encouragL' Prepaid Legal Services/Model Code Provisions Legislative Repo rt Alex W. Jackson, general counsel, made a brief report supplemented by a memorandum to the board noting that Randolph P. Reaves, legislative counsel for d,e bar, the American Bar Association Model Code of Professional briefed the commission with regard to rwo measures which Responsibility presented problems for cenain attorneys in were introduced at d1e second special session of the legis chose states where the Code had beell adopted in irs model lanire. form if they desired ro participate in a prepaid legal service A bill to exen1pccertain constitutional officers, legislators program. 11,e Alabama State Bar did not adopt rne model and legislative employees from the Mandatory CLE rc code, dicrcfore, DR 2--uo(B) docs not present the problem qu irC!11emspassed both houses of tl1e lcgislan,re, however, found in many jurisdictions. tl1e b,U was vetoed by Governor Wallace. 111ebasic ptnblcm involves the prohibition of an attor A bill had also been introduced by the stare comptroller ner. from cooperating wid~ a for-profir organi7.ation such as and had passed the Ho use which would have taken 1.9 pcr an msurance company which would recommend or furnish ccnr of die revenues from d1e Fair Trial Tax f lmd for l11s the use of an attorney in prepaid lcg:il service plans for office's use in administering d1e fund. This would have subscribers. caused $47,500 ro be taken from tl1e fund d1is year and 590,000 each xear thereafter. The matter died a quick death m the Senate, bur Reaves added that the bill is likd) • co be rcinrroduced at the regular session of die lcgislarurc ro begin on April 19, 1983. Disciplinary Panels President Stone reminded the board of d1cir responsibil ity cose,:ve on disciplinary (>'1!1-els when called upon to do so. He cited some figures which rcOectcdthat slighdy over President-clect's Report one-third of the persons in the panel pool had served when called upon_,and d1at even chough there were eleven com William B. Hairston, Jr., prcsidcnr-clccrof the bar, pre· m1ss1oners m the pool, <)ver fifty percent of die C1SCS in pared and distributed a mcn1orandum in which he re volving a pool member had been handled by the same four quested the board take certain actions. Commissioner members of the eleven member pool. He encouraged Crownover moved and Commissioner H uckab)• seconded a commission members to make every effon to attempt to motion that che rcqucsr,;of th.e president-elect as outlined serve when tl1cir panel is called and encouraged pool mem in his memorandlllll be granted. The board after further bers when asked to serve t0 make every effort ro do so. discussion approved d1e following matters: 1. AurJ1orizcddie. president-elect t0 solicit the bar for expressions of committee interest during his tenure as prcsident·clect and prior to becoming president. Mandatory CLE Compliance Report 2. Aud1orized the president-elect ro appoint the com mittees of the Alabama Seate Bar rJiat will be active Commissioner Willian, Scruggs, chairman of die Man during his ccrm of office as president prior ro the an datory CLE Commission, briefed the board on the year n_ual meeting at whid1 he assumes d1e prt-sidcncr pro end reports and the compliance of over ninety percent of vided, however, that tl1c duties and rcsponsibilincs of che members of the bar. The MCLE Commission mcc on the committees so appointed will nor commence prior Thursday, February z+, 1983.Tiie.rc were several requests to such taking of oflice. 160 3. Authori1.cd a brc:1kf.m for members of the lncom1ng ccnrly conducted audir for fiscal year 1979-198o,198o-1981, commirt= m be held in connection with the annu:il and 1981-1982,a copy of which hJd prcviousl)' bcc,n so u co m«ting of the Alabama Sratc Bar beginning with the c:1chmember of the cornmissioo. A copy of this audit is in annual nx-eting to be held in July 15>83. the file of this meeting of the board. The =ry notccf that appropriate floral uibutc:s lud +- Authorw:d the m:ognirion of commintt ch.iirnun by bcc,nsen t on l:ichalfof the boird to the funuals of Past appropriate identification on the convc,noon badges l'rcsidcnt Robert B. Albritton and Commissioner Albert beginning with die annual mttting 10 be held 10 July \V. Copeland. 15>83. l· Au1hori1.cda mid-wimer mttting of the Alabama Srntc Bnr 10 be held in Montgo mery. Alab:um in March 1984. The board nlso approved • list <>frns k forces for the President's Repo rt 1983-8,~year, rcaOinncd several standing C STILLWATERS 1000 STILL WATERS DRIVE DADEVILLE. ALABAMA 36853 Sdll Waters. We 're Much More Than Challenging Goin If you're a chlppe, or• putter-,Still W•tittt c1111nolf~, you iome of~ - most <.h.1lktt!dr\.ctgolf .,ooncL Our golf ~g~ Wluck~ • p,lv,ttc two-btdroc>tTi..-ift;i: 0¥t' rl0oklng our WOOdl.1incb,\#W'l'll.t:C'd green ~ soKa,, (2 po,,,,,,s118 -~ Md l>t'•..V...... ,,.,- .. ou, ltlWWM'II Mid lounge.The FOAes Den, lu1 ~"T·re-not to,,t • golf rckMt. We re lixAtcd Grt ~ 40.000 ~ NamC------I.AM'MMM wtm .sameo1 mebaa ftahwMct 'bl'llns1n mt South..We AJdr·<»~~~~~~~~~~~~~~ ~ • W.w,w. e matlN. ., ~ ~ bod, fwd .w"9dly ferri) LZJiJ,___ _ ••• Robert L. M.cCurlcy, Jr. Randolph P. Reaves Revised Limited Partn ership Act Steve Cooley Michael Rediker Bob Denniston JoeRitch Jay Guin Jim Stivcndcr T he Abb=a L:,w lnstirute will present :u lc:15rtwo Fred Hdmsing Howard Walthall major rcvi~ions of 1.iw 10 me lcgisbrurc during the 1983 Ted Jackson Robcn WaWull regulu session. Thcsc will be a revision of the Alob:una Lim ited f>armcrsh,p Act :ind a revision of the Professional Although me commirrcc has determined mat RULi' A rep· Corpomrion-ProfossionalAssociation law. A dmd major revi resents a signific:int improvement over die old ULPA and the sion, the Eminent Domain law, is presently being rcvis<..-d, This current Alabama limited partnership statute, ic.• study of artlclc and the one in the next edition will review rhcse drafts. RULPA has, o.Jso,revea led that a number of areas of unccr· 111c rc1•icwthat foU 16l opc:n io '111 inl'e>tor who erroneously believed himself to he 3 Bills Di e in Special Session limited pmn..-r. Article Four conti2ins die prO\isions dealing wich gcnc.ral Two bills of imcrest ro lawyers m the state of Alabama were p•rtners Additional gener.il partners can be admuted onl)' tiled during the re.cent SJX'Cialsess ions of the AlabamaLc:gis wich the ~pccilic wrmm consent of each partner unlc:ss che brurc . The first was House Bill 13, by Reprc.cntari\'e ~a~crshtp •gr Reap~rti onmeot Plan Gets Seal of Appr oval On April 11, a rhrcc•judge fcdcnl pand, composed of U.S. District Judges Truman Hobbs and Myron Thompson , and U.S. Circuit Judge Frank ~L Johnson, Jr., appro"cd the Ab· R4,bat L McCu,1'1,fr .. ,t, . Rnndolp/J P. Rt4Tis, a bam;a Lcgislm1rc's third attempt to rc:dnw House md Sma1c rtttqr oftbc Alabnmn Laa, J,i. rd11au ef d1t Unirmity tf disrricu-the pJ;anwhich was passedby the lcgisbrurc in the nin11e, radPuJ borl, /tis ,m. Alnbnma 1111dU niverrity of spcci21session c.irlicr this year.Upon approving the rc;ippor· ddgmduare and ,,.., ••J GBarGJJrief s A.BAmember ship hits bis J.D. degree at die University of Other appointments 300,000 Alabama School of Law and Master of Laws at New York.University, Henry Marl<.Kennedy, former 1'11eAm erican Bar Association Taylor was law cJerk to Alabam:i Montgomery yn mry d1~1rictjud ge, (ABA)-thc world's ln,:gcst Sui,rct11cCo un Chief Justice J. Ed has been appomtcd ns n voluntary professional Livingsron. Maybe it ls coincidence, Montgomery County circuit judge associarion-lus its 300 ,oooth or maybe it is fate, but whichever. to fill the pbcc vaCttl-dby Judge member! m rdlcaing backto 19s9, lhc new Sam Taylor. Morris Harrell, ABA president, judge on tfic Abb:um Court of Charles l'ricc h:u been 2ppoimcd and Thomas Gonser, ABA executive Criminal Ap[>?ls remembers having • Montgomery County drcuit judge dircao r, wen: on hnnd when ABA the 5'lme p:u:lcingplace 2S he did ro replace Ju 164 Alabama relative to the fajlw·e co 52.(b) , Alabama Rules of Civil has thirty days in which to "serve" file timely bl'iefs on behalf of Proc<.-durc.Tiiese amendments a motion for new trial; the appellants, die Alabama Court of which will become effective J~y ,, amendment changes that to grov idc Cnmin al Appeals has adopted a 1983,we re made UP9n the tha t such a motion mus t be filed" policy 3Jld orders its recommend ation of the court's within thirty days. Ruic 52.(b) unplementatio n. advisory committee on n ues of civil presently allows a parry tl1irty days The order states that in all cases procedure 3Jld are intende d to make to "·make''a motion to have the except capital t-ases,where neither a 1t dear tha t certain post -trial court amend its findings or make brief nor a "no merit'' letter is motions musr be fitjd widiio thirty addi tional findings; tl1e amendment timely filed on behalf of 3Jl days- it is not suffidcn t to sen>ethe clianges that rule tO read "Upon appcflant, a letter prepared by the motions within thirty days, motion of a parry filed no t later dc rk's oAice will 6c mailed to the followed by a later filing. d,an d1irty days after judgment. . ." appellant's atto rney immediately Specifically, Ruic so(6), as These amendments correspo nd to following the due dare (includiiig amended, provides, "N'ot later thau amendme nts made in 1982 to R,ue au~ ranted cxrcnsioos of time ), durry days after entry of judgme nt, 59(b) 3Jld (e), 3Jld arc inten ded to no · ing th em that the appeU3llt's a party who has moved for a furd 1er implement the principle of bri · has not been filed. directed verdict may file a morion City ofTallalkga ,,. McRae, 37SSo . to have the verdict and any 2d +29 (Ala. 1979). That case held judgment en tered d1crcon Sec aside that even diough Rule 59(b) at dm aucf to have judg ment entered in time provided that a motio n for accordance with hi.~ motion for a new trial must be "served not later dirc,'t,-d verdict." 111e rule prcsentlv d18Jl d1irty dar,s after the entry of Law limits legal fees !'rovidcs chat such a parry may ' d1e judgment,' tl1e runn ing of the move'' within th irty days; d1c time for appeal (Rule 4, A:R.A.P. ) The Alabama U nemployment an1cndmcnt indicates tJ1at one was tolled only if the motion was Compensation Law limits fees "moves" for JNOV at the time of also {i/ed within the tl1irty days. which can be cl1argcd for "filing" his motion rather than at The amendments will be representing a claimant in a benefit the a mc of "scrvillg' ' it. Rule pu blished in the S011ther11 Repmier =· Section 25-4-139,Ala . C()/k, 5o(c)(2) prescntlyJ>rovidcs that one advance sheets and in tl1eAfab11ma 1975, Limits fees ro ren percent of against whom a JNOV is granted Repm~cr. the. maximum bcne6 ts at issue. The rule applies ro fees wl1ich can be charged o r received by 3Jl attorney or agent or by a combma tion of the rwo. Ally proceeding w1der the w1employment compensation law, . whetlier an administrative bearing o r cou rt action , is covered by die regulation. V.'he n an individual files a claim for benefits 3Jld there is a report fro m 3Jl employer that die worker was fired for such acts, and the Client and Case Files. Pa.per files converted to m1croache action is sufficiently documented , or microfilm ca.n reduce the office file cabinet space needed all wages with that employer for by up to 95% , while providing faster file retrieval an d more that period of emp loyment ore accurate re-filing . A standard file drawer full of records can cancelled and the individu al denied in any benefits based upon those be st.ored approxima.t.ely 6 inches of space when on wages. Failure by 3Jl employer to microfiche . properly follow through on cases mvolvillg diis degree of misconduct Discovery. Documents during discovery ca.n be may rcs,ilt in charges to hjs accoun t reproduced easier and fast.er when you capture them with which od1crwise would not bave microfilm on-site-where the documents are produ ced. been made. From the microfilm, we can generate as many plai n bond paper sets of the files as you need . Wecan provide this service t.oyou almost anywhere in the conti nental United States. This faster meth od of documen t capture shortens out-of-t.own trips , saving you time and money. Suprem e Court amends Summ ation. Wehave a rufes complete line of microfilming ~~ services and microfilm products . WCentwyMicrofim The Supreme Court of Alabama ~. Servkes on March r, 1983, issued an order So, can us and let us state our case . an1cnding Rules so( b), so(c)(:i.), and BIRMINGHAM325 .0005/ MONTGOMERY834-7755 / ATLANTA586-1012 / H OUSTON 434-2444 ,,s, Git C.Uappened at the Herc's the Long and Short of Court In cident you'll promise nothing is said as he Peters restificd as a charat~cr w1mcss corn~ dO\VO,,, for defendant 01arlic C. Greene. MONTGOMERY, Ala.- llnvc you All eves in the counroon1 rurned to When, after two minutes, Peters had cvrr S3idsomething thar was raken lircr· the wi~CS$ mom as White called for Roy finished rcscifyi.ng,Judge Thompson ally, with comic:iJconsequences! Peters. ln g few seconds, rhe door IJJd himself open again by askmg if U.S. District Coun Judge Myron opmcd and into the rouraoom walked another ·short" witness s'Ould tesnfv. Thompson knows the feeling. Pcrc:rs-all + feet and ; inches of him. Then: were smiles all :tround. • Itwas +:ssp.m. during the third dayof Noc-wantingro insult PcterSfor bong This time, however, White ~cccdcd10 a long, tedious trial Wednesday when the punchline ro • joke he hadn't heard, tbc Pict11redbelow is Gale Skit111cr, /1111 ')/crreftrralsecretary fl/ 1/JeAlnbnma State Bar, putti,,g 11/1111 ,yera11dpotmrial dir.111 ro9,1/Jcr via t/Jebnr~ stauwide, tollfru pbo11e11m11ber. GIiie ansrvm overa /J1111drtd"IJ"® ead, muk. (11m,s111eri1,g soma11y mlls,)'011 ta 11probably im'!!li11eso me of the intcrari,,g C1mvrrmtio111r/Jat rcs11/t.Wrll, over rhc pastsevmrl mo11r/JsGal e bas been able to put tlJ.!}tt/Jer1/Je fflltrlijimrumsef the "idtnl" ntuirney. AR.8 YOU AN ATTORNEY WH O ... -C, n'r be bought out -Is not .cared to take on the govern· nw:nr - Will fight for his client -ls not too busy - Is not in ~c:ihoots" with the judges - Will definitely win rJ,c case - Is the "bcsr'' attorney in the 5tutc -ls rxpcncnccd -ls u,llir,5 10 '""*for free! ... .,,., 19'! COMMANDMENT FIVE: How to Deal Don't Supply Backgrow,d Material MU< the rq,oncr go m court ,..Old, ;u,d do hb own ICl<'MCh.Mosr With the Press ,q,ortcn .m: l.izy;u,d t-1 apa-.: u ~ aoy,.">y. Tell them ir's li,r d,ar~'TI good--,md be abwh"C'about it. 11Youman you.don\ hl:vc1IOO:$$ TEN SUREFIRE WAYS TO ALIBNATB lO the <96!Am nadons. M1yt,c:the l't"pOncr""111 b«onx confuscd1 forget hiJ 'IUC\UOIU :andsin 1ply Ahu01caway . COMMANDMENT THREE: Tell Them It' s None of the Public's Busin ess Mlkc Ir ,k:;arrron\ the ,rm th11bwsuig m cs.scnd.tllypri\•~rc rn;i.ncn ~·ccn pttv;a1:C'p.antiCS 11nd th~, the public Im no kgitinwc nght to know the m1~1d-ttd lnfomu:cion. Somctimc5 rhis pnt"ition ll I b.t tncky co MDt.un-.uch • when a nucleu power punt bb rada;aoon0c' t dlm bums OC'• Ulllityme> tt) ;,ck up iu mes. Bin afur:dJ.1fl.iwyctt " .. ,ed •ll theirum< rapondtng ID ntty lnquuyabaut corporu '"' Opinions of the General Counsel William H. Morrow , Jr. From the Center for Q UESTION: •Mayan armmc:yethically emer into an employment conm,cr with a client provid· ing for a contingent fee which further provides that I he anomcy wiUadvance the COS1$ Profe ssio11al of the litigniion and diat the client wiU not be liable therefor in the event there is no recovery, the conrmcr spcciftcaUy providing' ... in the event d1erc is no recovery, all Respon sil>ility expenses will be bomc by said attorney without nny cos1 to me.. .'?" ~ SWBR: Such conrmct is uncthkal since it is in violation of the sp<.'Cificlanguage of Ethical Considemrion '>·8 and Disciplinary Rttlc 5· 103(8). DISCUSSION: The Gener.al Counsel and the Disciplimtry Commission have written only ooc opinion addressing the question posed herein. Howc\'Cr, i1 has come ro the attention of die General Counscl that this opinion did nor deal with a unique or isolated incident. Other Afobamaattorneys havecithcra1tcr Ol$ciplinaryRuic 5· 103(B}. Code of Professional Responsibility of the Amcric:m Sar Association provides: M(B) While rcprcsc:ncing• client in connection with contemplated or pending firig:ttion,• lawyer shaUnot advance or guaramcc Jinan· ciru assistance to his client, except tliat Q lawyer may adv:mce or gi,1nrnntcc the expensesoflicigation, i11cludingcourr costs expenses of invcsrignrion., expenses oT medical cxammocion, ancJ1 cosrs of ohroining nnd prcscncing evidence, p,-ovitled the tlim t remni,i.s 11ltimate1ylinble for mdi "'-'f't1JSCS." (<'mph.sis add,d) «13 You will note u,ar rhe Alab•m• rule appears to besonicwhar niorc l.ibcralthan the American Bar A$sociationrule since the Alabama rulr states d,ar a lawyer niay advance or guarantee "emergency financialassistance ro his dicnr" whereas the Americ:m Bar A$soci,u:ionrule seemsro limit advances or gmr.111tccsm "expenses of litigation, including coun costs, cxpcnscsoflnvcstigarion. apcns« of medicalcxrunin.uion , and cosu of obrain,ng and presenting c:vidcnce•.. ~ We note. however, that both rules contain the bnguage "pro\'ldcd the dicnr rcm:iinsultim:ircly li•ble for such apcnscs .~ The Abbama rule is c,,:n morc explicir and conrains the, language "without regard to the outcome of the litigation.n In FormaJ Opinion 259 ( 1943), the Americ:in Bar Association Committee on Echics and Professional Responsibility held that dicre is no exception permitting a On February zs, 1983, Clanton lawyer m bear rhc co.~rsof litigation for a dicnr being represented gratuitously. This lawyer William D. I.adirun wa~pu~ opinion wasdecided tuidcr the old Canon 42, Code or Professional Responsibility of lidy tcn~u,·c,.I for h,wing filed over die American Bnr Association, which provided: lapping dnims with die scare comp· "A lawyer may nor properly agree wiiJ, a client tlm the lawyer rrollcr for time drnt he spent rcpre shall pay or bear the expenses ofl.itigation; he may in good f.iith scnring indigent criminal ddi:ndanrs advance ex(!citSCSas a matter of co1wcnicncc,bur subject ro rcim, in C:ISC5 m which he had been ap burscmcnt. pointed by 1he court. rcswnng in his One of the rcasons for the, rule is illustrated by the exception thcrcro Q UESTION: • M3y an attorney disclose a swcidc thrcat made,by a criminal defendant, rcprc· krncd by ~id attorney, in which the defendant smtcd dm if he were not gi,·cn probation he would commit suicide, in court, by ingesting cyanide~~ A NSWER: There would be no ,thicru improprit'ty in your revealing your client's suicide th rear to the court or to other authorities that might be instrumental in prc,•cntiog the client's carrying our this th rear since it is d1c common low ofEngl:uid and the law of the Stntc of Alabama that suicide is a crime and Disciplinary Ruic 4· 1O 1(C) (5) expresslyprovides that n lawyer may reveal "lt)hc intention of hJs cUcnr ro commit a crime and the information necessary to prevent die crime." DIS CUSSION: Although 1heliacrs :as presented in the inseamrequest foropuiion may at firsuppcar rather bizarrc and unurual, criminal defendants and other dicncs arc not infrcxiucndy mentally and emotionally disnubcd, and threats of S\licidcarc not ncc=rily uncom mon, thus, posing a problem ro attorneys. Ethical Consideration 4-1 provides in part: • "A client must fed free to discusswhatever he wishes with his lawyer and n lawyer must be equally free ro obtain information beyond that voltmtccrcd by his client. A lawyer should be fully informed of all the fuas of the matter he is handling in order for his client to obmin the full advantage of our legal sysrcm. ,.,, "The observance of the ethical obligation of a lawyer co hold inviolate the co.nlidcnccs and secrets of his client nor only fudlitates the fuUdevelopment offucts essential to proper representation of the client but also encourages laymen ro seek early legal assistance." Disciplinary Ruic 4-IOt (A} and (C) (5) provides: "( A) 'Co nfidence ' refers co infor mation p rotected by the attomcy·dic nt privilege under applicable law, and 'secret' refers co other infonnaoon gamed in the professional relationship that the client has requested be held inviolate or the ctisdosure of which w?uld be embarrassing or would be likely co be detrimental to the cheat. "(C) A lawyer may reveal: (5) The intention of his client ro commit a crime and d1e information necessary ro prevent the crime." 83 OtrpusJm-is Sccu11dttm,Suicid e § 21 Crimin11/i&y, contains the following srate n1e:ac: "Swddc was a fclony at commo n law, punishable by forfeiture of the goods and chattels of d1eoffender, and the ignominiou s burial of his 6ody in d1e highway. ln some jurisdiction s 1t is still considered a felony or a crime involving mora l rurpirude , and the incidems of a criminal act may follow therefrom . ln other jurisdiction s, however, suicide itself is not a crime :\Od is not punishab le as such and d1c incidentS of a criminal act do not follow therefrom . Nevermdcss,1 in such jurisctictions, self-destruction ordinari ly involves moral tur pitude and is regarded as being wron}?, and under some statutes it is recognized as a grave public wrong. 1l1ecaseof McMnh111zv. St ate, 168 Ala. 70, 53 So. 89 ( 1910) involved a murder trial wherein d1ccourr instructed that if the dead, o f deceased was sdfinflicted , and was the result of a compact between the deceased and the accused that each take bis owa life, the accused, as survi~or, was guilty of murd er. lo rhe opinion d1c court observed: "At common law self-murder was a felony; but since with us no forfeiture of estate penalizes the felon, and since die dead cannot be punishc-d, no pcnafty can be inflicted upon die self-destroyer. But collateral consequences may and do, upon occasion, depend upon the feloniousness of self-murder. " The case of PenmylJ!11niaM11t.Lift Im. Co."· Cobbs, 23 Ala. App. 205. 123 So. 94 ( I 929), involved a suit upon a life insurance policy wherein die insurance company pied the suicide of the insured as a defense. 11,e opinion contained the following: "Suicide was a felony at commo n law, and in Alabama is a crime invol,•ing moral rurpitude." See also S,mthem Lift & Hea/rl;bu . Co. v. Wynn, 29 Ala. App. 207, 194 So. 421 ( 1940) . From the foregoing , it is apparent that suicide constiru res a crime under the law of Alabama. 1l1erdore , d1ccxccptions spelled out in DR 4-1 O I (C) ( 5) would apply, and you arc free to reveal your client's swcidal threat to the court or ro other officials that may be instTUmcntaJin preventing the same. Even if the common law, the law of Alaban1aand the exceptions spelled out in DR 4- 10 I (C) (5) were oth.erwisc, we simply do not feel that the reason for preserving tl1e • C "confidence" or "secret" of a client apply in this case. Certainly, your client revealing this so called "confidence" or "secret'' is not the rypc of infom1ation described in Ethical Consideration 4-1. Your revealing such informatio n would not prevent your client from fully advising you of the facts relative ro d1c matter in order to obtain full advantage to die client in the matter you arc handLing for him nor would it discourage persons from seeking early legal advice when confronted with a legal problem . Our researd1 reveals one Ethics Opinion which appears to be ctircctly in point. A digest of Opinion 486 ( 1978) New York State Bar states as follows: 110 1PROfIECClrilON SIERVTICCIE RlElllABillillrY for the nation's legal profession For nearly a century, LheFirst American eagle has been closely associated with Lhenation's legal profession. Protection of property righL~,service t o the legal profession. and reliability have been our l1eritagc. We understand the needs of the legal professionand offer expen assistance through our nationwide network of officesand agents. For protection. service, reliability.. . call on First American FCRST! First American TitleInsurance Company STATEOFFICE , 820SPAIN STREET, NEW ORLEA NS, LA70117 • (504) 948-6596 HAT10NAL NE.AOOUAATEAS 1 11, E. FIFTH ST., SANTA ANA, CA 1~701 • (114J 55f •32U SERVINO TITLE INSURANCE NEE:OS THROUGHOUT THE UNITED STATES 'f\Jlillolld"11/t The Firs1 Americo 11Fino11cilJ/ Corportl//otl The Final Judgment ' - . Albert Whiting Copeland 1927 -1983 Albar W. Copeland of Montgomery, the courtroom, He prized their respect Fifteenth JudicialCircuirofd1cA!abama died on February 20. 1983. 31 the roo ,nd friendship. Smc Bar. Undertaking with enthusiasm cu ly •ge of fifty-five. He began the Albert enjoyed the intd lccrual chal· and skill the work his responsibility os f)r>cttccoflaw with the 6 rm of Godbold leogc of tJ,c law prnc:tice.He could han· bar commissioner entnilcd, he further wd Hobbs in 19s2 in MontSomer)' ofter dk mc,,rccases with greater ftci!irythan held posirio1'1Son the Executive Co nt · grnduatlng from the University of Alo· any lawyer I hnvc known, managing mirrec nnd the MCLE Commission. bama Schoolof Law. He remained with with case the most co111plicnredproducts The Alabama Bar has lo.~tone of its the fim1and irs successor finm uncil his liabilityca.IC, r,:;al est.re closing, or bank· great ones, and all of us who knew him dc>th. ruprcy matter. In this age of the spc fed deeply our loss :ir his death. In our He W:tS an c:xtr.10rdinarilyable trial ciaJisr, he was rhc accomplished sorrow, we c:xtcadour sympadl)'to AJ. ad,'Ol-atc. Few lawycn could match his gcncr.tlist. I know of no one more de· bcn's wife,Ann; ro his daughrcr, Anna; skiUand ingenuity in devising a theory of serving of the accol3dc, "a lawyer's and to his sons, Harrell, Paul and Lee. recoveryfor his diem, or ma1d1his pow· bwycr." ers of persu:i.sion before court or jury. As Albert loved his profession and its nuesrnnding ns his abilities were, how members. Despite the great demands of ever, Albert is best remembered os the his law procricc, Albert served his profcs• - Tnt111nn C. Hobbs "Happy Worrior." Among his grcarcsr sion well. Young lawy= with novel ,nd admirers and among those who re· difficult problems C:lmero him for hdp . member him with most afti:cTionarc He was never 100 busy to listcn ,nd dl06Cwho tested his mcttk as trial ad,'CI'· come up with conmuctivc ad, Hocldander , Joseph Monroe- Mobile Admincd: 1950 Died: March 18, 1983 Love JoelM oore-Sheffield Admitted: 19J1 Died: November 20, 1982 Strong, Dan c. -Binningbam Ao.mined: 19SJ Died: Novcmbcr +, 1982 Th omason., Charles Tolivu, Jc.-Anniston Admincd: 193s Died: Fcbnwy is, 1983 l' idweU, lra Elud1.n-Lccds Admitt ed: 1934 Died: January 16, 1983 Albritton, Willfam Harold , Jr.-Andruusia Williams, Admitted: 1929 Died: April 14-,1983 Jesse McKenney, Jr.-M onrgomcry Admincd : 1926 Died: March z.+, 1983 Barron, Bishop Nordoo-M onrgomcry Admin 'cd: 1956 Died : March 9, 1983 Copeland, Albert Whitio_g- Monrgomcry TI1cscnotices arc published immediately ofter reporrs of Admitted : 1951 Died : Fcbntary 20, 1983 dead, arc received. Biographic:tl information nm appear· ing in this issue will be published at a later dare ifinfom,a· Dort ch, Willi:un Brice-Ga dsden tion is accessible. W..: ask 1hnt you prompdy report the Admitted : 1916 Died : Pcbn,ary 20, 1983 dcarh of an AlalY.lmaattorney to the Alabama St1tc Bae, Gordon, Robert Scott - Binninglum and wc would also appruiarc your assismncc in providing Admitted : 1933 Died; March 8, 198J biographical inform:ition for T/,e Alabama lA•'J" · 174 Qlassified ~otices BINDE RS: Keep 77,, AlabAmn Lawyt;rat books for sale court reporters tractivelyorganized for convenience,spc:ci.J care~and e,.U) t rcJcrcnc-c , To order, smd $6. So FOR SALE: Code of Al•bama, 1975, wid, ALABAMA CO URT REPORTING to The Alabn mn l.a"')'tr , P. O. Box +1J6, 1982 Pocket l'am . New. Contact Darline SERVI CE: Since 19so. Registc~cdP rof,:s. Montgomery, Alab•m• 36101. Hughes, I'. O. Rox 303, Selma, Alabama sional H.cporrcrs. Sid B:.1rrington, Kim Wil4 )6701. Phone 87S·l770· loughby, Cheryl OeVone, Mary Anne TYP EWR ITERS FOR SALB: rBM Rayfield,Abby Ennis, Lindo Butler. Qu•I· llxccutive Electric Typewriter. $150. IBM FOR SALE: Am Jur. > AU rcqucstSfor classifiednotices ffi11$( be WANT TO BUY: Southern Rq,orrcr, 1st submitted cypcwnncn and •re subject t.0 scric,. Hora« N. Lynn, 176$Ash ley Avenue, •pprov.J. Cwsificd ads must be:prepai d. Montgomery. AL,b•= 36109. Noo-n1cn1bcr.1dvcniscrs y,riU receive :a complimentary copy of TIJ, A labnm• Lawver f<>llowing pnblicocion. Additional copies arc $3.00, ph•• pmtagc. servi.ccs CU Mll &R.LAND LE GAL RESEARCH PROGRAM : The Cumberland Rde2tch CLASSIFI.BD RATES Bo,rd offers membersof the Abboma Bar an (205) 269-LJI$ opportunity 10 olxoin amst:lllCC in legall'C sard, proj miscellaneous positions wanted FOR SALB: Obiolctc-Antiquc Smds-1 MAILING INFORMATION Bondssu11>bk for framing, ckxorac i= Please t?S All memberswho reside in the 1st, 3rd, 5th, 6th, 7th, 14th, 15th, 25th, 26th, 28th, 32nd, or 3 7th judicial cirruit have been sent notification that this is rhc yc3r for the et cetera cl«rion of oor commissioner in those respcxtivc cirruirs. Nominating petitions an, due by May t 5. Elcnion ballots will then be sent 10 members residing in those cirruirs et cetera and muse be rcrumcd to the Alabama Stare Bar bcfon: 5:00 p.m. on Tucscby, June 7. Ballots musr be $igncd co be a,un red. The term of commissioner is Lhrccyc•rs from et cetera July I st following election. et cetera Response co the 1983· 1984 Committee Prcfetcncc form was outsranding. It is et cetera good lO rmd the membership taking such an acriv., interest in committee work. Pn:sidcnt-clcct BiUH airsron will appoint committees well in advance of d,c ffll!Ual et cetera meeting in July. et cetera In April, the Al•b:1m• State Bat malled n green booklet entitled "Mnnd•rory et cetera Continuing Lcgnl Bducotion Rules and Regulations" {January 1983) to each of its members. 111c booklets were mailed at bulk nuc nnd thus were not forwarded to et cetera individuals whose rurrent addresses ate different from the addresses listed in the Bar's records. Becausescvcr:tl of the rules and regulations have been amended since Jnnuary et cetera 1982,it is important thau,achAJabama:momcyrcccivcchc 1983 booklet. To obtain a copy tclcphooe (205) 269· 1515 or write lO the MCLE Commission, Naban1a State et cetera Bat, P.O. Box 671, Monrgomcry, Ahbatna 3610 1. et cetera Arc you in1crcstcdln submitting an article for possible publication in T/1t Aln/!1111111 et cetera Lawyer?We encourage any member of rhc bar wirh special knowledge of an areJ of t:hc law which has not recently appeared in the publicacion ro submit a manuscript (and et cetera oncc:xtracopy ). Practicalhow-to-do nn:iclesarc especiallypreferred. Also we welcome suggestions of ropics that you would like 10 secdiscussed. In f.ta, if you know a lawyer et cetera who is at1 expert on an an:a of the law you h;i\'Can interest in send us his natne. Tl1t Alahama iArPytrcan best use articlesthat do nor exceedfift ,...s LEGAL PRINTING ~ Legal and Financial Printers Since 1910 Experienced, Dependable, Responsible, Confidential Prospectuses, Proxy Statements, Official Statements, Tender Offers, Indentures and Briefs BIRMINGHAM PUBLISHING COMPANY 130 South 19th Street Birmingham, Alabama 35233 Telephone: 205/251-5113 Contact: Harold Fulton, Vice President UPCOMING Non·Profll Organization U. S. POSTAGE 1983 PAID Permtt No. 125 Mon19omery, Ala. 36 104 May 5-1; Board of Commiss ioners Mee ting. Gulf ShOres May 13-14 YLS Annua l Seminar , Sandoslln. FL July 21-23 Alabama State Bar Annual Meeting. Bifmingham Ju ly 25-27 ~EG l;,,t,\LD !!Ald)jER Bar Exam , Montgomery 3~07 DftE.XEL i SAT WED THURS Alabama Young Petitions lo, Board ot Recent Lawyers, Bar Commissioner Commi&Sioners Developments Sandestjn NominationsDue Meeting. in the Law, (AB ICLE) Birmingham YLS·Blrmingham, Alabama State Bar MON 16 FRI 27 SAT Deadline fo, Ta>cSem inar, Tax Semlna, , 21 FRI 22 SAT 23 Submitting Poln1 Clear Point aear Material tor (ABICLE ) (ABICLE) July Issue of Tho Alabama Lawyor ST A TE BAR ANNUAL MEETING Birmingham MON 25-27 THURS 2-3 Bar Exam, Juvenile Court Ba, Commissioner 7th Alabama Mont gomery Judges Annua l Elecilon Ballots Institute on Moating, Due Federal Taxatio n, Gulf Shores Birmingham (AJC) (AIFT)