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September 1992 Volume 53. Number 4 Pubilsned seven times a year (1he IO'/Ofllh lsaut ,, • ON THE COVER: ClarenceJI!. S mall, Jr. I• shown in his laworRoe In Birmingham, bar d11eatoryod lbon} by the Alabama S1ntoBar, Alab•m•.H e wa, installed In July u lhe 1992-93 presid
PRESIDENT'S PAGE
t the American Bar Associationm eeting in Atlanta. many other professions can claim such public service? These when Vice-president Quaylekicke d off the present activities are rarely the subject or media attention and proba administration's program of lawyer-bashing. he bly never wi11 be. D picked what was perceivedi n political circles as a The citizens of other nations are not so fortunate. In an edi marvelous target. Since, in most disputes resolvedby our legal torial cartoon which recently appeared in The Birmingham S)•stem, there are winners and losers, zeroing in on the News, the cartoonist depicted the U.S. and Japan as runners in lawyersseeme d to make good sense. Odds are that at least half a footrace. The Japanese runner sprinted freely, while the the disputants will agree. It probably makes no political differ American labored to leap hurdles labeled "U.S. Legal System." ence that the statisiics cited by the vice-president lo support Coincidentally, a fewdays before, an article on the front page his claims that an excessive lawyer population in the United of The Wall Street Journal described the price paid by the States, a multiplicity of tort suits and capriciousjury awards Japanese public for the system free of legal "impediments." have resulted in the inability of the U.S. to compete in foreign Thal article began: markets have proven false. (uga/ Times, When Shigeru Kamogawar etired from a rebruary 17, 1992). The presentation of career in medical research two years ago, statistics to refute false but dramatic gen he dreamed of using his 50 million yen eralizations often bores the listener and is retirement payment - about $385,000 - lost in the sound bytes of today's method to set up his own consult ing company. of communication. Does anyone outside Ten 1veeks after he entruste d it to Ark the legal profession really care lo debate Securities Co., he says, his retirement the validity of a 1990 federal study of prod money was almostall gone. ucts liability suits which concluded that Today, Mr. Kamogawa.67 years old. has plaintiffswo n fewer than 50 percent or the a part-time job at lo1vpay wiU, few bene cases. the sizes of jury awards were neither l'its. his dream a th ing of the past. Ark erratic nor excessive. and punitive dam salesmen. he asserts. recklessl)• traded his ages were highly correlated to economic account for commission income. Ark offi loss? Probably not. It is far easier to prove cials deny his charge. but there is no deny the system bad with aberrational excep ing his newlystra itened circumstances. tions, such as the Californiawoman who Complaints or stockbroker"c hurning·· of received a favorable jury verdict on her client accounts is a fact of life wherever claim that an accident made her sexually Claren ce M. Sm all, Jr . there are financial markets. but in Japan active. the plight of the victims is especiallyseve re. The truth of the matter, however, is that In manycou ntries. investors can recoverall lawyers ably perform functio ns essential to our society. or most of U1eir losses by taking legal action. In Japan, mores Ul\\~•ers police the marketplace by drafting and enforcing con and legal roadblocks discourage victims from going to court tracts that make a si.x trillion dollar economy function and and prevent them from recovering much if they do. provoking standards that increase the safetyof the workplace. It is rare for Japaneseeve n to engagea lawyer, as Mr. liamo Lilwyers are constantly involved in improving the administra gawadid. tion or justice. Examples: Marshall Timberlake's Task Forceon This is the downside of Japan's conflict-avoidancesociety, Alternative Dispute Resolution is. al this moment, working which favors harmony over individual rights. Manyfo reigners, closelyw ith Judge Joe Phelps' Committee on Bench/Bar Rela particularly Americans, admire Japan for avoiding a U.S.-style tions to educate judges, lawyers and litigants on alternative litig ation explosion. Rarely mentioned is the difficul ty methods of reducing caseloadsi n an overburdened and under Japanesehave gain ing redress for even blatant wrongdoing. funded cou1'1 system. IOLTA funds generated by Alabama's Long ago. the framers of our legal system concluded thal la1,,yers' trust accounts have, since 1989, poured more than the adversari,11S)•Stem was the best method of ascertaining the 1.4 million dollars into legal aid for the poor. The July 1992 truth in resolving disputes. No tool has ever been found to issue of The Alabama Lawyer lists the names of792 lawyers in equal a skillful cross-examination in testing the validity of an this state who devoted thousands of pro bono hours lo making asserted position. \Vhen capable adversaries perform their access to justice a reality for hundreds or disadvantaged required function, the loser is rarely pleased. It is human Alabamians.An article by Richard Allen in that same issue nature lo blame others for our own mistakes. The obvious describes how members of the AlabamaS tate Bar have volun scapegoat in this situation is the opposing lawyer.T hus, the teered legal assistance to victims of natural or manmade disas grim paradox is that lawyers are condemned, not for doing ters on a non-discriminatory, non-fee-generating basis. How their job too poorly, but, rather. for doing it too well. •
300 I September 1992 THEA LABAMALAWYE R FACTS/FAX POLL
Are you interested in participating in a very unscientific poll? It is painless, anonymous and not time-consuming. It could be fun, and il may provide some insight into various issues confronting our profession.Take a moment to complete the following questionnaire and then fax it to the state bar headquarters at (205)261 -6310.The results will be published in our November1992 issue. How HardDo AlabamaLawyers Work?
I. On the average,I work: 4. l workat night: 7. I work: a. __ Lessthan 40 hours per week a. __ Never a. __ As a sole praclitioner b. __ Beh,...,,40 and 50 hrurs perntek b. __ Infrequently b. __ Witha firmo f fiveor less c. __ Over50 hours per week c. _ _ Frequently c. __ Witha firmof six-IS d. __ With a firmof over 15 2. I takeat leasta full weekof 5. Mywork load/hours of work has, in the vacation: past fiveyears ,: 8. l am: a. __ Never a. __ Increased a. __ Apartner b. __ Infrequently b. __ Decreased b. __ An associate c. __ Everyyear c. __ Stayedabout the same c. __ Ofcounsel
3. I workon weekends: 6. I considermy law practice: 9. I \+.'Ouldcha racterize my practice as: a._Never a. __ Verystressful a. __ Rural b. _ _ Infrequently b. __ Sometimesstressf ul b. __ Small·town c. __ Frequently c. _A lmost neverstressful c. _ _ Metropalitan
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1,, Completethe form below ONLYif there are any changes to your listing in the current AlabamaBar Directory. ( Due to changes in the statute governing election of bar commissioners, we now are required to use members' officeaddresses, ' : unless none is available or a member is prohibited rrom receiving state bar mail at the office.Additionally, the AlabamaBar i I Directoryis compiled from our mailinglist and it is important to use businessaddresses for that reason. j! ! NOTE: Lf we do not know of a change in address, we cannot make the necessarychanges on our records, so please notify us I when your address changes. 111 i,! MemberI dentification(Socia l Security) Number I
Chooseone: 'l Mr. "l Mrs. I Hon. Miss _, Ms. 1 Other i!, rullName ______
Business Phone Number ------ Race Sex Birthdate ------Yearof Admission______Firm------
1. OfficeMail ing Address ': City State __ ZlP Code County ------11 1 OfficeS treet Address(if different from mailing address) l i !i I City State __ ZlPCode County------! ' 'l '-- .. --- ··--·-----··- ..··---····-··············· ...... -····---·········-··---·---··---·---- ····----- ····----- ' THE ALABAMALAWYER September 1992 / 301 EXECUTIVEDIRECTOR'S REPORT
New licen 1lng stat ut e hav~run 20.25 percent beca\1$eor an earl)•inability to estab- Law)'ersrequired to obtain the annual stale license under lish a valid license list immediate!)•following the October31 §40-12-49.Code of Alabama. 1975. will 110 long11rpurcha .se deadline.This new procedurewill make possiblean accurate same at the county courthouse from the probate judge or list from which certificatesof goodstllnding can be issued. license commissioner.Effective October l. 1992 this license Watch your mail for >'Our1992-93 licensing inl'oice and must be obtainedthrough the state bar. alert 1·ouroffice . mainly the bookkeeper, 1 am now the Issuingauthority and am of the October 1 due datt and October31 required pursuant to the statute to com delinquency~nt c. pile a list of pro11erly licensedlawyers after October3 1.I willprov ide such a list to the Savings for you! revenuedepartment . the presidingcircuit In less than a year,Alabama lawyers are judges and the clerks of the appellate saving 42.9 percent on the cost of over courtswithin the firstweek of November. night shipments via our group rate Air· Everylawyer engaging in private prac borne ExpressDiscount Program. Year to tice must purchase the state license. No date (June 30. 1992),our members have lau:g11ris n,quired to pay a license fee to shipp..'CI6.655 pieces. Cross charges wit!,. the count)'. It is my understandingsome out our discount totalled S132.668.08. counties ha,'l!tried - and others maybe Our discounts equalled 556,952.09,with actually collecting - an additional fee. net charges totalling 575,715.99.This is Section40-12-49 prohibits this additional one of your bar ser\'icesthat can decrease countyfee. your ornceoperating costs. Municipalilies do have occupational taxes, usua lly levied under a gross Reg inald T. Hamner You read this receiptsformu la. This fee is payableonly I low do l kno1v?l'ut ··TomDoo ley" on in the city where your office is located. the MT;\ instead of "Charlie" and your The new legislation (Act92-600, Acts of Alabama,l 992) does friends call and write to point out your "lack of lyric memo not affectany municipalfees. ry.'' '·I am hanging down my nwn head",but thanks for read Every lawyer admitted in Alabamawill be receiving our ing the column. I was initiallytroubled 1vlthcorrectly deter· annual license/speci.ilmembership dues in\'Oicein Septtmbtr mining the fate ("unknown·· or ·unlearned"?) of our lost 1992.This will be the onlg bill you "~11receive. Payment \\ith• rider. All of my musical advisorsagrud on ·•unlearned",but out penaltyis due October31. 1992. even they did not realize wt had the wrong passenger lost It is hoped this centralization will assist bar mtmbeu in beneath the streets of Boston. Apologies to the Kingston maintaininga current license. In recent >'tars.delinquencies Trio. •
BARDIRECTORIES
Extra copiesare $15 each. Send checksor moneyorders to:
ALABAMABAR DIRECT ORY P.O.B ox 4156 MONTGOMERY,AL 36101
302 / SeptemberJ 992 THEALABAMA LAWYER D igi1nl's computing sys ,vo 1·ld\vide service ol'ganizarion tcn 1s. give you more choice . provides a com piece ra11ge or \Vhcnhet you l'leed a single nlu l1i-vcndor suppor1 and user $yste01 or one 1hal lets se1·vicc options. You C{Lnget hundreds orusers run diffel'• plnnning , design . consulling ent applica.rions sin,u ltaneou.s.. and cralning on both our prod ly. ,vc have ii fo1· you. You ucts and on 8000 products Because no t\vo legal business also have a choice of from over 800 other es ;u·c cxacaly ali ke, no single. opera 1ing sys1e1ns. vendors. compu tlng SQ!u1ion fir.s pcrfcc1- enc h based on If you ,vant ly for all. One common thl'ead indust r y the: co1nputing tha1 does tic all gl'Owing lega l st{lndards . solu1io1, businesses coge,her LS1he need Regardless thnt's right • to ,vo 1·k ,vith people ,vho tru ly of ,vhich sys• for your legal understand the.it business. tern you choose business. ic'II tukc Tha t'• ,vhy Digital has - I NT l::L•, RI SC a tearn effort - t h
Alabama Law Institute the vast majority of bills for each ses was determined that the Business Cor 25 years old sion of the Legislature, however, major porat ion Act and Criminal Code were The Alabama Law Institute was creat code revisions, such as revision of an areas in the most pressing need of revi ed by an Act of the Legis latur e on entire section of law, as Alabama's busi sion. Funding was first made by U1eLeg August 24, 1967 as the official advisory ness corporation law, banking law, etc., islature in 1969 from the state General la1vrevision and law reform agency for are handled by the Alabama Law Insti Fund and Special Education Trust Fund. the State of Alabama. The Institute was tute. Senator Finis E. St. John, Ill, 1978- funded and commenced operations in 84 - During his te rm as president , 1969. IL is housed in the law center on until his untimely death. the Legislature the Universityof Alabama campus so as Functions considered and passed the rollowing to have available the research facilities The Institute. while being a disinter major pieces of legislation: Criminal of a good law library which is essential ested source, is a great strength in draft Code, first revision in 160 years: Busi to major law revision. ILalso enables lhe ing revision proposals. 1t is not a '·lobby ness CorporationAct , first revision in 25 Institute to have experts in various fields ing" organization to promote legislative years; Probate Code, first revision in 160 under study as readily availableconsul years: Banking Code, first revision since tants. The Institute also calls upon U1e 1915: Rules of the !load, first revision professors of Cumberland School of Law since 1926; Administrative Procedures and practi cing lawyers and judges Act, Alabama became the 50th state to throughout Alabama. adopt such a law; and revised Article 9. UCC,first revision in 18 years. Addition ally, U1e NonprofitAc t, the RevisedL im Purpose ited Partnership Act and the Profession· The Inst itute acts in an advisory al Corporation Act all became law dur capacity with lhe general purpose "to ing this period. promote and encourage the clarirication Honorable Oakley Melton, Jr. 1984- and simplification of the law of Alabama 91 - The Legislature considered and to secure the belier administration of adopted the following revisions: Emi justice and to carr y on scholarly nent Domain Code, Uniform Transfers research and scientific legal work. " to Minors, Trade Sec rets , Unifo rm AlabamaCode §29 -8-4 (1975). Guardianship Protective Proceedings Act, Alabama Fraudulent Transfers Act, proposals through the Alabama l..egisla Alabama Securities Act, Adoption Law, Duty ture. It is an agency of the Legislature Alabama Condominium Act and 12 other acts. Additionally, the Alabama The Alabama Law Institute considers dependent upon some other group or Supre me Court adopted the Alabama needed improvements in both substan legislator to promote the proposed legis Rules of Criminal Procedure. tive and adjective law and makes recom lation within the AlabamaLe gislature. mended needed changes as it deems necessary to eliminate antiquated rules of law, thereby bringing the state law, Robert L. both civil and criminal, into harmony Presidents Mccurley , Jr. Rooe.11l McCurloy,Jt with modern conditions. The Institute has had the service of «' tho d;rec.1oror the The Institute works closely with the four presidents: AlabamoLaw l ns1l1uto LegislaLive Reference Service in ensur Representative Hugh Merrill, 1967- el the Un1verst1yof Alatwna. He t(!C(! IVed ing the proper placement and codifica 78 - During his years, the Institute hfsund0191adua1e al'\d tion within the Code of Alabama of conducted inqu ir ies fro m lawyers. lawdeg reesfrom 1tle Acts passed by the Legislature. The judges and legislators to determine lhe Uo1Vers1ty Legislative Reference Service prepares areas of law most needed for revision. It
304 I September 1992 THE ALABAMALAW YER Rugh Merrill Finis E. St. John OakleyMelton James i\l. CampbeU President,1967 - 78 President, 1978-84 President, 1984- 91 President.1991 -presen t
Representative James M. Campbell. draft submitted by the reporter for Once approved by the Law Institute 1991-present - Currently the lnstitute approval. The advisory committee is council. the recommended law revision has revised UCCArticle 2A, "Leases" composedof practicing lawyers. judges is presented to the AlabamaLegislature and UCCArticle 4A, ''Funds Transfers". and experts in the area of law under for its consideration. The time required It has revised the personal representa revision.These committees often spend for preparation and approval of such tive powers for probate procedure, and three to five years considering a major revisions varies from a matte r of has under study Rules of Evidence, revisionof law. months to severalyears. Business Corporation Act and Limited Liability Companies. Procedure for new projects Staff The Institute, through the director, The Alabama LawIns titute is basical Membership receives and considers suggestions ly a voluntee r organization with a The AlabamaLaw Institute member from legislators,judges, pubI i c officials, director, associate director and secre ship is limited to the maximum of 150 the practicingbar . and the general pub taries who organizevolu nteer efforts. practicing lawyers, who serve on rota!- lic to discover inequities and inconsis Bob McCurley, the current director. ing six-year terms with 50 lawyers tencies in the law and possibilities for has served in this capacity since J975: being elected every other year. In addi its improvementand expansion. Penny Davis, associate director, has tion. membership includes judges of The director of the Institute submits been with the Institute since 1979; and the Alabama Supreme Court, court of to the Institute council Lhesuggestions secretaries Jackie Sartain and Linda appeals and circuit courts, federal for revision or clarification of Lhe law Wilsonhave been with the Institute 18 judges in Alabama, full-time law facul which he has received. and 19 years, respectively. ty members of Cumberland and the The council selects a limited number The Institute has had the services University of AlabamaSchoo l of Law, of suggestionsas its projects. of four directors. The first director, and all lawyer-membersof the Legisla The council, th rough the director, Vastine Stabler, 1967-69, is now a ture. selects an advisory committee composed partner in the firm of Walton & Sta of expertson the subjectwho are respon bler, Birmingham ; Professor Jerry sible for drafting the act or revision. Gibbons was director from 1969-72; Council Usually, the director and advisory and Dean Tom Jones was acting direc The governingbody of the Institute is committee select a reporter from one of tor from l 972-75. Both of these con the Institute Council, composed of six the Alabamalaw schools to prepare the tinue as professors at the University practicing lawyers from each congres initial draft. of Alabama School of Law. McCurley sional district. as well as representatives The reporter prepares a draft of the was in practice in Gadsden with the from the appellatecou rts. attorney gen proposed legislation and presents a firm of Rains. Rains. Mccurley & Wil eral's ornce, state bar, law schools. Leg draft with commentary to the advisory son unti l 1975 when he accepted the islature, and the Governor's office. committee for comments and criticism. directorship. The advisory committee makes such Anyone wishing to obtain further changes as it deems appropriate before informationabout the Law Institute or Advisory committees approvingthe draft. any of its projects or reports may do so For each major project , a special The advisorycommittee then submits by writing the Alabama Law Institute, advisory committee is appointed to to the Institute council the proposedact P.O. Box 1425, Tuscaloosa, Alabama review and provide criticisms of the for their consideration and approval. 35486. • THE ALABAMALAWYER September1992 I 305 BAR BRIEFS
Judge Colquitt received time when lhf SEC's proxy rules have record ordered al the same time: Herb ert Harley award been the subject o( extensive debate 13irth, death. marriage. divorce, The llonorab le Joseph A. Colqulll. nationwide. nmendment. etc. - $4.00 former presiding Judge or Al~bnma's Waters is a 1972 cum laude graduate 3. J>ecfor an exemplified copy o( a Sixth Judicia l Circuit, received the of Duke University. In 1975.he received record: Birth, death , marriage, American Judicature Society's llerben a master's degree from OicfordUniversi· divorce- S20.00 Harley Awardin recognition or his con, ty, where he was a Rhodes Scholar. 4. F'ee(or an amendment lo a vital tributions to improvingthe administra Watersgraduated from the Uni\-ersityor record, to include one certified copy: tion of justice in J\labama. I le was pre• AlabamaSchool of Law in 1977, where Birth, death, marriage. di,.orce - sented the award during the Alabama he was editor or the • Journal of the SIS.00 State Bar's 13ench and Bar L.uncheonal L.egalProfession. " 5. Fee for preparation or a new certifi 1he 1992Annual Meeting in Birming Prior lo joining Maller.I lamiiton. he cate or birth after adoption or legiti h,1111. \\•as with the Birminl!ham firm of mation. to include one certined coi>y: lie is the aut hor or Alubuma Evi, Bradley, Arnn!. Rose & While and then $20.00 dt'Ylce, and has served on a committee served as legal advisor to Governor rob 6. t·ec for preparation of a dela)•edcer or the supreme court on the state's James. tificate.lo include one certlRcdcopy. rules or evidence. He has also been He is a member or the AmericanBar Birth. death - S20.00 actively in,'Olvedin the drafting of new Association'sFederal Regulation of Secu 7. Fee for forwarding legal documents trial time standards in Alaooma. rities Committee and a member of the of an adoption granted in this state Judge Colquitt has served on the foe, subcommittee on Proxy Solicitations for a person born in another state to ullies or the National Judicial College and Tender Offers.Waters is the chair that state: $10.00 and the AlabamaJudic ial College. person or the board of bar examiner$or 8. Addlllonal ice for any non-rouline or I le resigned his Judgeship last year to the Alabama State Bar. He is also a expedited service:$10.00 Msumc a permanent position on the memberor the District of Columbia Bar. l!equesls for vital records should be faculty of the University of Alabama malled to the followingaddress: School of Law. He is a graduMeof the Friend named to national board Center for Health Statistics Uni,-el'$ilyand its School of Law,and he Edward M . r.o.Box 5625 received a master's of Judicial studies Friend, III. the Montgomery.Alaooma 36103 from the Universityof Nevada-Reno. managing partner Phone for customer serviceand expe, of the firm of Sirote dited service:(2051 242·5033 . Waters & Permull, has authors text been named lo the Kilpatrick to head Georgia Michael D.Wa ters, board of directors State Bar a partner in the I of the National Columbus. Geor Montgomery firm Health Lawyers gia attorney Paul of Miller, llnmi · ' Association. The Kilpatrick. Jr. llon. Snider & association is a legal educationalsociety became president Odom. hu ,\ll'illen dedicatedto the disseminationof timely of the 23,481- a new Lexi, Proxg and accurate law,relatedinformation on member Slate Bar Regula/ion. Pub the health field. oi Georgia for lished by the Practising Law institute, Friend has served as chairperson of 1992-93 at the the book provides corporate and securl· the Southern lnslilule orH ealth Law. bar·s annual meet· ties practltioners with a comprehensive ing in June. start.to-fin ish approach to the proxy Fees Increased for vit.al Kilpalrick is a native or Norlh Caroli solicitation process from the bask poli· record s na. I le received bis law degree from the cyor full disclosureto the details of how EffectiveJu ly t, 1992the fees for vital Universityor Georgiaand is currently a to prepare the proxy statement. file it records in Alabamaincreased. The fol, p:,rln
The following continu es a history of Alabama's county courthouses /heir origins and some of /he people who conlribuled lo their growlh. The A(a6omo Lawyer plans lo run one county s sto,y in each issue of the mag. azine. If you halle any photographs of early or present courthouses, please for ward them to: Samuel A. Rumore, Jr., Miglio nico & Rumore , 1230 Brown Marx Tower, Birmingham. Alabam a 35203.
Bibb County
ibb County is one of only a handful of Alabama coun ties to have had a name mch ange. The county was originally esta blish ed as Caha1vba County by the AlabamaTer ritorial Leg islature on February 7, 1818.It was cre ated the same day as its neighbor, Shel by County.Th e original name is derived from the Choctaw Indian language and means the "waler above." This is also the name of the river which traverses Bibb County Courthou se the center of the county from north to south. dividing il into an eastern and the Georgia House of Representatives. defeat, President Monroe appointed western part The name of the county He next was elected to the Georgia State Bibb the governor of the newly created was changed less U1an three years later Senate. After four years in the Georgia Alabama Territory. Bibb worked hard to lo honor Alabama's first governor. Legislature.the young doctor was elect· prepare the AlabamaTerr itory for state· When the AlabamaT erritory was cre ed to Congress where he served from hood which came in 1819. In the guber ated from the eastern lands of the Missis 1806 lo 1813. When Senator WilliamH. nator ial eleclion that year, William sippi Territory In 1817. PresidentJames Crawfordr esigned his seat in the United \VyatlBibb became the first governor of Monroe appointed\\ filliam WyattB ibb as States Senate, Bibbwas selected to com lhe State of Alabama. the first and only governorof the territo· plete the unexpired term until 1816. In GovernorBibb presidedover the state ry. Bibb was a native of Virginiaw hose that year, he ran for a full Senate term. for a few short months. He was injured family had movedlo Georgia.He attend but was defeated. in a freakacci dent when he fell from his ed Williaman d MaryCollege and gradu Bibb was quite unhappy after his first horse and died in July 1820. He had not ated from the Medic.iiCo llege of the Uni political defeat. He promptly resigned yet reached his 39t h birthday. On versity of Pennsylvania.He began prac before his Senate appoiJ1tment expired. December 4, 1820.the state Legislature ticing medicine in his new home at However. as often happens, when one officially changed the name of Cahawba Petersburg,Georgia i n 1801. By 1802,at door closed another one opened. By County to Bibb in his honor. the age of 21. DoctorB ibb was elected to April 1817. only a few months after the According to the Const itutio n of 308 / September 1992 THE ALABAMA1.AWYER Alabamaa t that time, in the event of a on a site. Another Act concerning the this project was an inadequate supply or vacancy in the office of Governor. the county seat passed December 20, 1820. water in the area. Many wells were president of the Alabama Senate auto This Act authori1,edt he sheriff to hold a attempted but water was scarce. matically became Governor. Ironically, new election for comm issioners if a Finally, after much discontent over the president of the Alabama Senate suitable site for a courthouse was not the site of the temporary courthouse, was Governor Bibb's younger brother. selected by December25, 1821. on December 27, 1827 the Legislature Thomas,who had followedh is brother's Another Legislative Act, this one authorized an election on the first Mon example and emba rked on his own passed on November 27, 1821. pre day in February 1828 to determine the political career. Thomas Bibb was a col empted the previous law, and appointed permanent seat of justice. The Legisla lege educated farmer and businessman U1reecommissioners \vho were to pick ture limited the choices to ··Bibb Court who, as a state senator from Limestone a temporary seal of justice within two House" and the "Falls of Cahawba" County, had been selected by his peers miles of the center of the county by (Centreville). The latter location won. to be presiding officer that body. He April I, 1822. Including the Act which Courts continued Lo be held at Bibb completed the unexpired term of his originally created the county, this was Court House until May 1829. deceasedbrother. the four th law passed concerning the Meanwhi le, a committee of thr ee The Acl which create d Cahawba county seat location in less than four prominent citizens was appointedby the County in 1818 designated that courts years, and still no decision was made. Legislature in .1828to select the specific for the time being would be held at the l'inally. these last com missione rs location for a new courthouse . They Falls of the Cahawba. the site or pre made a decision, locating the temporary chose a site at the falls on a hilltop sent-day Centreville. The community county seat approximately nine miles abovethe eastern side of the river rather was located along both the eastern and east of Centreville at the intersection of than at the previous location on the western banks of the Gahawba River. the Pleasant Valley (or "Elyton to western side. They laid out lots around a but the log courthouse stood on the Selma") Roadand the l'ort Jackson (or large courthouse square. Bibb County's western side. The first courts were held ..Tu scaloosa to Montgomery") Road. third courthouse was soon completed in May 1818. This location is approximately midway and the county seat of Centreville was On December 17, 1819, the Legisla between present -day Centreville and incorporatedJanuary 21, 1832. ture passed an Acl lo establisha perma Randolph, in what is now known as the There are no surviving pictures of the nent seal of justice in Cahawba County. Antioch community. third Bibb Courthouse. However, one This Act called for an election on the A frame str ucture had been built at noted feature of the court square was first Monday of March 1820 for the pur the.se crossroads by Thomas Coker and pose of electing five commissioners who, his son, Noah. It was originally used as by a majority vote, would select a suit a home, tavern and inn. Once the coun able site for the permanent county seat. ty government moved into the building. The Act further provided that the com the community became known as Bibb missionersco uld select a temporary seal Court House. Later, after the county or justice so long as it was within four seat moved, it became known as Bibb miles or the center or the county. There Old Court House. was no such restriction for the perma The first circuit court met at Bibb nent county seat. Also,the Act kept the Court House in September 1822. The seat of justice at the Falls of the Cahaw origi nal size of the building is not FormerlyDir« cor of Plawnencof
TliE ALABAMALAWYER September 1992/ 309 chlnaberry lrees planted in the 1830s The present Bibb County Courthouse lion. a leakyroof and inadequatefunding thal provided welcomed shade. These was constructed on the site of its two for maintenance. The citizens of Bibb trees survived until a hard freeze and immediatepredece.ssors in 1902.WiUiam County have created several organiza snowfallcnme in 1899. The courthouse S. Hull was architect for the project. He tions to assist in pr~ng their court itself was dismantled and rebuilt as a later designed the Choctaw County house. Amongthese ha\oebeen the Bibb residence at another location in 1858, Courthouse at Butler. Alabamain 1906. County Heritage Association. the Bibb when it was decidedlhal the county had F.M. Dobson served as contractor. The County RestorationSociety and the Bibb outgrown Its old courthouse and plans total cost o( the building,,,as S34.000. County Counhouse Preservation Soci were begun for a new one. The architectural style orthe court ety. ~:stimatesof the cost of a restoration IL was also In 1858that the last seri house ,s VictorianEclectic with a strong approachone milliondollars. ous attempt to relocate the courthouse Romanesque 111nuencc. It is a two-story Recent efforts have been taken to look place. The to1"n of Randolph had brick structure with a corner clock secure funding for the Bibb County recently grown becauseof the coming of lower. It has stone lintels and sills, a Courthouse. A two mill ad valorem tax the first railroad. Boostersfrom eastern denlillcd cornice nnd pediment. both earmarked for the courthouse passed BibbCounty called for a countywideref square-he.icledand arched windows,and November8, 1988. A multi-phasedpro erendum on courthouse relocation. On corner domes. The courthouse square gram of restoration and maintenance May3, 1858,voters chose between Cen and its surrounding historic district soon began. The first phase included treville and Randolph. Centreville won were named to the National Register of the installation of a new roof and the and the issue was ne\'tr raised again. HistoricPlaces on October 19, 1978. restoration of the clock and clock Afltr the old frame courthouse was On Friday.February 13, 1903.a disas tower. Plf&J Architects. Inc. of Mont re=ed, construction began on a new trous fire struck the business district of gomery supervisedthis pro1ect,and the brick courthouse. The new courthouse Centreville.Only the newer brick build· contractor was Residential and Com· was constructed by C.A.Shelby and Son ings of the dislrict survived. including mercial lmprovemenls. Inc. of of Talladega. It cost SIJ,000. The two the courthouse. The older frame struc Tuscaloosa.As funds be __ ...,._ ...... ·fnltJ • ha,aQOllndoo) • P!,l,oln,;Ct,IQIC.,. _ • H&OP11Cft0kl0f ·Poe-~ • Altevy -~ •ht.we:. I Cl~ • .\tlal""'°"'91 • Gtr.eralS.- · -'ll'I\' •Ped,ou.:E~ • - S.,r1,log ·-- • Nun,no • Ptda1nt6asb0tt1:.e.,1 •OoNtncs ·•---l'!dmnc~ •- ClniiOV>SCll~f~ s.,_ • GY'*(lloQicOncology • OCC.,paoONI,_ • Pedll!foclnl-- • Clloic:11NIIIJIUOO ·•G-IOQY • OocolOQY • Pedimt lot"""• Cm • CoioltclllSuroerr ·• 14"1-- S AOphysid411 speclallsrs are /Joa!d-cert1fred""'6cal school ~ membersor are ol medical scllOOIIIICIJl/y caDber Expotience In °"''4,800 modicaJ and hospital maipr.,,;tJc&, pe-1 lnJwy IJlld pmm,ct li8blli!ycases /or pl8}nalf and delsndant Speda}Jst's Ctllricvlumvrlllo and complete lee schedu(e - on an IIOurly mro p,ovkJed upon llllllll/ ,nqwy. Approxmat.ty tlltOO weeks after ttlCfHPIol records specJalist ~ contactartomey wjt/1 oral opt,/otl II reqlJGSted. the spedafs' wtl then prepare and sign a "'litten reponand btl avmlab/8 /or testimony. 310 I September 1992 THE AL.\BAMAu\WYER ~lc:F.LROY'S \LABA MA &\'(DE,".Ct: ,~,~• ....__...... ~-;:::; ...... _~. ._ Order Form 1992 SUPPLEME NT TO McELROY'S ALABAMA EVIDENCE FOURTH Edition By Charles W. Gamble ___ $ 110.33 Bound volume with 1992 Supplement ($97.50 + $6.83 sales tax+ $6.00 postage & bandling) ___ $78.83 Bound volume only ($69 .00 + $4 .83 sales tax + $5.00 postage & handling) _ __ $33.00 1992 Supplement only ($28.50 + $2.00 sales tax + $2.50 postage & handling) Total amount enclosed: $, ___ _ All orders must be PREPAID . Allow 2-4 weeks for delivery. Ship To: Make checks payable to: McELROY'S ALABAMA EVIDENCE. Name ------Address ------ Samford Mc£/roy~ ""bam•fOOIIOO, Universi ty fl Cum befland Schoolof l aw 800 l.aklt$ho(•O rtvt Signature ------PreSS O Birn'llngtiam, Alabama 35229 Ex PARTE INTERVIEWSWITH CORPORATEPARTY EMPLOYEES: ANOVERVIEW by SCOTTDONALDSON very lawyer knows thal ex These opinions have allowed inter possibly committed the tortious act pa rte l contact with a repre views or contact with employeewitness which led to the suit. The lawyer asked I] sented party dur ing litiga es to a tort. but only if they are low-level the General Counsel to classify, by job tion is generally forbidden. with no power to bind the corporalion:' title, those persons who fell into the To what extent, however,d oes this pro municipal employees with some man proh ibited categories. The op inion hibilion apply to the corporate adverse agerial functions, but only if they can summarized the previous holdings, and party' In other words, can the lawyer not commit the city;S co-workers in a concisely addressedt he issue: contact and interview a represented sex discrimination suit, but only if they The determination of whether an corporate party's employees without employee of a corporation is in a the oppasing lawyer's consent or pres position to bind that corporation is ence? (Assuming, of course, that the a legal determination and is beyond individual employee is not separately the scope of this opinion or the represented by counsel.) authority of the Commission to On one hand, depositions and formal TheGeneral Counsel decide. Accordingly, ,~e can do no discovery procedur es are costly and more in response to your query time-consuming.2 Employeesm ighl be Lhan lo state, as we have in the more willing to discuss certain matters has beencareful to pasl. that is ethically permissible without the presence of counsel for the for you to speak with the employee corporate entity. thus enhancing the emphasizethat of a defendantcorparation. without fact-finding process of discovery.3 On the knowledge or consent of the the other hand, corparate partie.5shou ld attorney ior that corporation. if the have the same legitimate protection the opinionsa re person with whom you speak is not against overreaching, and should enjoy in a position to bind that corpora the same protection of counsel in the lion and is not the alleged tortfea adversarial nature of our legal system.4 fact-specific... sor or person whose actions have predicated the lawsuit. You should ALABAMA ETHICS OPINIONS also be mindfu l that add itiona l The current applicable Opinions of investigation is indicated, on these the Alabama State Bar General Counsel facts. as to the issue of whether this cannot bind or speak for the corpora are based upon former Codeof Profes employee is the actual lortfeasor sional Responsibility DR 7-104(A)(l)5, tion and are not officialsor managers;9 since contact. in lhat event, would which provided: and a secretary for the defendantcorpo be improper. ration, but only if she is not an agent of During the course of his represen and cannot bind the corporation.JO We believe it would be appropriate tation of a client a lawyershall not: The General Counselhas been careful at this time to indicate that by so (I) Communicate or cause anoth to emphasize that the opinions are fact· holding we are not nashing a green er to communicate on the subject specific,an d that the status of the inter ligh t at Alabama lawyers and of the representation with a party viewee most often involves a question endorsing this practice... . he knows lo be represented by a of Jawunanswerab le by the Office.II In IVl]hile contact"~th such an employ lawyer in that matter unless he R0-9Q.79l2, a la,~yer representing the ee may be penn issible. it is not rec has the prior consent of the lawyer plaintiffwanted to interview an employ ommended and should be undert.ik· representingsuch other party or is ee of the defendant corporation who en with a clear view of the ethical authorized by law to do so.6 passibly had relevant information, and mandate ofRules4.3 and 4.4.13 3 I 21 September l992 THEA LABAMALAWYER THE NEW RULE three categorirs of persons with whom dence 80)(d)l2)(0) creates a hearsay EffectiveJanuary J. 1991. DR 7-104 contact is prohibited: exceptionfor statements made by: was replaced with Rule of Professi THEAu\B.'\MA LAWYER September I 992 I 3 13 potential interferencewith the out· • motion to invoke the "inherent" Therefore,the trial court should have come of the legalproceeding.24 authorityof the court. Mostdecisions jurisdictional authority to act upon a at lcasl mention this jurisdictional request from a party, prior to or afier The commen1aryto the AmericanBar vehicle,37 and some courts have the contact, to determine who cun be Association Standards25 states that expressly rejected an>' other ap interviewedex parte. "lmlost courts impost reprimands on proach.38 Oncein court. the scape and extentof lawyerswho engage in improper com the applicableethics rule is often bal mumcations· . 26 The ABAnotes one The resullS in cases arising in other anced against competing policy inter case.not in,'01,•mga corporateclient in jurisdictions have been varied,with no ests. A good exampleof how completely which a lawyer was reprimanded for clear consensus.Some decisionscenter conOictlng results can be obtained is communicating with a represented on whether the comments to 4.2 are found m a comparisonof Niesigu . Team party unknowingly, the rule is even upplicable. If the comments are as I, 76 N.Y.2d363, 559 N.Y.S.2d493, 558 designed lo prohibit the cond uct found to inhibit the litigation process, N.E.2d1030 (1990), and Public Service they are rejected.39 In Alabama, the regardless of the intent or lack thereoi Electricand Go.~Co mpany u. Associated by the lawyer.27 Anothercourt held: Commen1s" ... are intended as guides to Elec/rlc and Gas Insurance Services. The purpose of this prohibition is interpretation.but the text of each Rule lid .. 745 f', Supp. 1037 (D.NJ . 1990). to prevent a person rrom being is authorital ive•.40 Bothor theseca.'les invol\'e ex parte com The holdings are uniform. however, deprived of the advice o( retained municationswith former employees45. counsel by the bypussing of such thal all permissionto interviewstOpS at but could be applicablelo current em counsel. and ii ,s immaterial attorney privilegedinformation .41 The ployees o( a corporation. The Niesig whether direct contact is un inten commentlo Rule 1.13.states: court dealt only with DR 7-104. and tional or negligentviolation of the When one of the constituents of specifically rejected the definition of rule.28 an orl!,'lmzationalclient commu ··part)'"as containedin lhe commentsto nicates with the organization's 4.2. Thecourt further held that employ Thus. a risk associated with the ex lawyer 1n Lhatperson·s organiza ees who are mere 1vitnessesto an inci· parte interviewis disciplinaryac-lion.29 tional capacity. Lhecommunica dent should always be accessible to Seeking an 01ilnionfrom the Cene_ral tion is protectedby Rule 1.6. either side through ex parte contact.and Counsel and DisciplinaryComm ission blanket rule or exclusion or all employ in advancemay shield the lawyer from Communication has been defined in a ees wou lcl frustrate legiLi mate informal ethic.d sanction,30 but the opinion will Alabama as "... not only words uttered, Interviewswhich ofie n uncoveraddition· not answer the fundamental question · but lnrormation conveyed by other al facts.In rejectingan all encompassing is the employee a prohibited person means. Acts well as words fall within as prohibition.the court held: within the scopeof 4.2?31 that prtvilege:42 I( the lawyer interviewsan employee The single indisputable advantage who has privilegedinformation. he or of a blanket preclusion- as with she could be found lo be overreach every absolute rule - is that it is PROCEDURE clear. No lawyerneed ever risk dis So how do you determine if the ing.43 qUlllificationor discipline because interviewis appropriatebefore the con of uncertainl)'as to which employ tact? Nol surprisingly, what begins as ees are covered by the rule and an ethical problem often ends. or at WHAT ABOUT ALABAMA? which noL The problem. however, least continues, before the court in Alabama courts would likely follow is that a ban or this nature exaclSa which the action Is pending. Some the inherent power approachas a juris high price in terms o( other values. times. the lawyerseeking the interview dictionalbns is, ln !fr Parle TaylorCoal and Is unnecessar)•t o achieve the has asked for relier. while in other Co.,I nc., 401 So.2d l.,:J(Ala. 1 981), the objecliveso fl)ll 7-104(a)(1).46 cases. It ls the corporalion's counsel SupremeCourt held: who lurns to the trial court. Jurisdic IThe Jurisdictiono( the Court over The Ne1vYork co urt rejecteda ··control tion over the issue in civi132cases has atlorncysl is inherent, continuing, group" test. as well as a case-by-case been attempted through variousproce and plenary. and exists indepen analysis, and held "party" to only dures. including: dently of statute or rules o( equity. include: • motion under Civil Procedure Rule and ought to be assumedand exer ••. corporateemployees whose acts 26 seeking "protectiveorders" relat cised as the exigenciesand necessi or omissions in the matter under ing to discO\-try:33 ty of the case require, not only to inquiryare binding on the corpora • motion 10 strike pleadingsthat con· maint.iin and protect the integrity tion (in effect the corporations tain informationgained through the and dignity of the court. to secure "alter ego") or Imputedlo the cor ex parte contact:34 obedienceto llS rules and process. porationfor purposesof its liability, • motion lo disqualify attorneys for and to rebuke interference with the or employees implementing the conductingin terviews;35 conduct of its business,but also to adviceof counsel.All other employ • motion to hold allorney in contempt control and protect its officers. ees may be Interviewed inrormal of court;36or Including altorncys.44 ly.47 314 / September1992 THE ALABAMALAWYER Although claiming to have provided mation obtained through prohibitedex Accordingto the leadingcommenta clear guidance. the court lhen noted parte interviewscannot be used as an tors, the best approach 1s to consult that the opinion was limited to the admission under F.R.E. 80 1.55 In counsel for the corporation in all but rocts presented. and "... there are Stringer v. Slate. 372 So.2d 378 (Ala. the most clear cases.59 The corpora undoubtedly questions not raised by Crim. App. 1979), ihe district attorney tion's lawyer, however.aPl>arently may the parlies that will yet have to be contacted the represented defendant properly adviseemployees no t to speak answered."48 directly and obtained an ·admission". to the opposingcounsel on an inrormal Public Service reached the opposite While the opinion addressed other exparte basis. Rule 3 .4(dl, whichhas no conclusion. This New Jersey federal grounds. a troublingaspect is the hold real counterpart in the former Code. court held that the Nlesigtest woulddo ing that the disciplinaryrules • .•• play states: nothing but produceadditional pre•lrial no part .. ." in determiningthe admis A lawyershall not: sibility of evidence in court.56 On this liligation,and that the value of the ex request a person other than a parle interview is •·greatly exagger basis. an ex-parle interview which client to refrain from voluntarily resulted in an "admission'' under the ated",49The court found that the sec giving relevant inrormnllon to lhird prong could conceivablybe used ond prong of 42 could not be avoided. another party,unless: aseach employee'sact could be impul· in state court. leaving disciplinary ed to the employer.In adoptinga com action or dis.qmlificalionas the corpo (I) the personis ••. an employeeor plete and total blanket exclusionfor all rate parly'ssole recourse.S7 other agent ol a client and the employees,Lh e court held: A practical problem with any ·after lnwyerreasonably believes that the person's interests will not be Ry prohibiting contact with the the foci'' remedyIs ascertaining exactly what informationwas obtained in viola adversely affecled by refrai ning represented former employee, the fromgiving such information. opportunityfor overreachingby the tion, and what was oblained through im-estigatingparty is nullified.The legitimate sources. Any system which The comment states lhal ii • ... per organiution ·s interest in the act. providesonl)' this reliefwould seem to mits a lawyer lo ad,•iseemployees of a omission or transaction is, there foster pre-trial litigation.including tes client to refrain from giving informa fore, also protected. Most impor timony from the interviewinglawyer.SS tion lo another party, (or the employees tantly, the conclusion reached today has the decided benefit of simplicity. lt Lhus servesthe overall objective of the ethical rules by providingclear guidanceto the bar concerningwhat conduct is prohib ited and what conduct is not. This litigation, and numerous others LANDTECH86 like it, illuslrate the bar's clear need for such an understandable Real Estate Settlement System bright line lest. Adoplingan alter ForLaser or Matrix Printers ego test. as delinealed by the New York Court of Appeals in Niesig, does nothing to further this objec • HUD 1 Automatic Calculation s tive. Indeed,that court's test serves only to further muddy this already • Checks & Escrow Accounti11g clouded ethical arca,50 • Word Processor· Spell Check Policies & Commitments What remedywill apply if the contact Deeds & Mortgages is found to be prohibited?~ Supreme • Data Base Reporting (SQL) Court has recognizeddisqualification in • On Site Training Available conRictof interest cases.SI but is reluc· tan! LO resort lo this drastic measure.52 In addition. connlct cases necessarily $1,495 .00 involvethe remedyof disqualification. as the disciplinaryrules in question con template1\/ithdrawal of representation.5.1 Note,hOWe\e'l?r, that tM I Ith Circuit1w LAND TECH recognizedthe inherent authority of a CORPORATlON (407) 833-0454 districtcourt to disqualifyand finecoun 303 Guaranty Building • 120 South OUvc Avenue • West Palmll<,~ch, FL 33401 sel for impropercontacts. although in a different proceduralseU ing.54 In many federal jurisdictions, infor. THEALABAM.~LAWYER September1992 / 315 may identify their interests with those onaches.11>e prorubl1>00 lhoulo aOPlv 29 NoleaJSO Iha! Rutoa •!•l would oi:,e,ate regardlessol oeno.-ro~1,gatJOn 10l)(Oh,bil 1M lawyet from COl..netal o( the dienL -60 ,nvaivemen1cn u,e ex pane cmtact See The eaveat contained in RO 90-79 7 RQ.68-34 (June 30, 1988) also Massa v Eaton Corp • 109 F R 0 suggests that a rcaionable investigation a R0.64-160. (November 8. 198<1) 312 (W D Mich 198$) o( the facts must be undertaken prior to 9 RD-83-81 (May 19, 1983). 30. Alabama FlulBsof o,sclp/lnary Proceduro, Rule 18. approaching any employee.I n lhe event 10 R0.88-27 (May 3. 1988). This opinion an intcYViewis necessary. there seems notes lhe previOUSholdings that wrtness 3 t SeoRO !JO.79 wt,ere Illa request IOclas to be no real impediment in sending n may generally be con,acted by e,me, a,ly employee$ was rotused s,cle In A0-87-74 (J\lne 2. 1987).an Ind• Interrogatories to the corporation. ask· 32 For the c:,,mc,a; conttld see In Re FMC -.al"s phyScaanmay be contacted. bul Co,poratuL 430 F Supl) 1108 ing i( certain named emplo),ees are no,eIha! mephy$lelllll-.ld not be an (S D W Va 1977), Un1iodSlares • K,ng. ol tho lnd•v,ch,&1 R0-321 shielded by 4.2. In the event the re ·employee" In 536 F Supp. 253 (D Cal 1962).Unltad (April 21. 1980), ct.mlnal dolendants can Sta/es v Ryans.903 F 2d 731 {10lhCrr questing party questions the response, contact the s1a1e·sw11nesses. but the !990). United51010s v Lopez.B!Hl687, the trial court should hnve the power to oplnioo recognizes 1hoi 1he witnesses are N.D ca1 1991. TripleA Mncl>lneShcpv not the clients ol lhe Stnto resolvethe dispute Just as in any discov Sta1eo/C..l1lomia,i13Cal App 3d 131, ery proceeding.61 Note, however. that 11 See "OJ)mtcx,sol lhe GanerlllCounsel,• 261 Cai Aptr 493 (C81 Ct App 1989) TheAlabama t.a..ya,.Vol 47 No 2 an interrogatorywhich broadlyrequests 33 Porterv. ARCO Metllfl Co , 642 F SUpp (Match. 19116) the corporation to divulgethe names or 1116 (D.Manl 1986), Wr,g/11v Group all employeeswho would be prohibited 12 November15.1990 Healf/JHospital. 103Wa"'12d 192. 691 (ND Ill 1989).Po/ycasl Tochr>Ology 13 RO 9().79, p 2. shifts the burden away from the Corp v Uniroyal,Inc 129 F R D 621 requesting party. and foils to recognize 14 PubllShed,n 562-564So 20. Alabama (SD NY 1990), Amor,n Plasucs.Inc v that the ex parte interviewis an unusu· Ropo,ted.and 1nTho Alooama Lawyer, Maryland Cup Co,p., 116 FAD 36 (D Vol 56. No 1 Mass 1987). Frey v O,,partment of Healtll al and extraordinary discovery tech and Human SeMces. 106F R O 32 15 Alabama comments 10Rule• 2 nique.62 (EDNY 1985) 16 ~ 1111$artde dealt W>lhcorpo,a. 3' C«amco. Inc v LH ~l 510 l>OOS.ii could I lulw>seapply by analogy IO f 211268 (2nd C., 1975) Fa.rAuramtMO parlnefShmsCC o;hot OCQMIUtalai entJ.- Repalf, Int V SeMce Sysrems, CONCLUSION 1... 9 Seecommeni.10 1 13 ca,.x Inc, 128 Ill App, 3d 763. 471 NE. 2d 554 Proceedingwith an ex parte contact 17 Seo also Nswsrk Insurancev. Sartain, 20 (1984) mn)• be permissible, but is fraught with F R.D. 683 (N.D Cal 1957) for a •manag• 35 Ceramco.Inc . v Lea Pns,msceutlCl!t,510 Ing agen1·definition danger of discip linary commission F 2d 268 (2nd C• 1975), Meal Price and/or trial court sanction. Absent an 18 See fooino1e8 lnY113'igator'sAssoc,a1,on v Spencer Foods. oc. 572 F 2d 163(&II C,, 1978). agreement from the corporate counsel, 19 SouttJemLJ/8 hf>alllr/n$u,anc,e Co V Mid tn Re Coord THE ALABAMALAWYER September l 992 I 317 1992-93COMMI'ITEES AND TASKFORCES Members: CO!l1llmTEEON A~ TO LF.cAI.SERVICES Lee C. Bradley, Birmingham Chair: DonnaWard . Mobile I'. Luke Coley. Jr., Mobile...... 460-0555 ElizabethCve tetic, Monroeville Vice-chair: Joel F. Alexander. Ill, Birmingham R. DavidMcDowell , Huntsville...... 534-2436 Eleanor L. Smith, Bimiingham John H. Burton, Jr., Birmingham Board of Bar Commissioners Lia.ison: Donna H. Beard,Opelika Ben T. RO\se. Mobile...... 433-696 1 William RichmondStephens, Leeds Young Lawyers' Representative: Barrie B. Stokes, Birmingham l'red 0. Cray, Jr., Tuskegee...... 727-4830 Willie A. Maise, Demopolis Staff Liaisons: Jim Sears, Tuscaloosa Keith B. Norman.Montgomery...... 269-1515 Richard Eldon Davis,Bim1i11gham MelindaM . Waters, Montgomery...... 269-1515 NickRoth , Decatur Members: Carter H. Dukes,Bim1ingham Anne W. Mitchell. Birmingham Ina B. Leonard.Birmingham John Mark Englehart, Montgomery Blair M. Haddock, Tuscaloosa FloydSherrod , Jr .. Florence Annetta Yerin, Bessemer Allen R. Stoner. Montgomery DorothyNorwood, Montgomery RaymondL. Johnson. Jr., Birmingham Cordon Carter, Montgomery CourtneyW. Tarver,frlontgomery J. Mark Hart, Birmingham Boydf. Campbell,Montgomery MaryW. Burge, Birmmgham Mary Ann Stackhouse, Gadsden John DavidKn ight, Cullman Katherine Elise Moss, Huntsville George R. Irvine, m, Bay Minelle Earl P. Underwood.Anniston DavidR. Pace, Huntsville Al Vreeland, Tuscaloosa CalvinM. Ho1vard, Birmingham Stanley Weissman. Montgomery Rose P. Evans.Montgomery Chair and Editor: T. Kurl Miller, Birmingham Robert A. Huffaker, Montgomery...... 834-8480 Christopher E. Peters, Mobile Vice-chairand Associate Editor: Ken Battles. Birmingham Susan Shiroc.kDePao la, Montgomer!/...... 262-1600 Ann E. Taylor, Mobile Patricia Y. Fuhrmeister, Columbiana Board of Bar Commissioners Liaison: Dana Jill Simpson. Rainsville Samuel A. Rumore, Jr.. Birmingham...... 323-8957 Ernestine S. Sapp.Tuskegee Staff Liaison and Managing Editor: Robert S. Hill, Ill. Montgomery MargaretL . Murphy, Montgomery...... 269-1515 Daniel R. l'amell, Jr .. Montgomery Members: Pamela H. Bucy, Tuscaloosa William J. Underwood.Tuscumbia Olis R. Burton. Jr., Talladega JeffreyL. Luther, Mobi1e James Rebarchak, Mobile AlexL. Holtsford,J r. , Montgomery Susan CiIman McAlister.Birmingham AlanT. Rogers,Bim1ingham MerceriaL . Ludgood, Montgomery J.E. Sawyer, Jr., Enterprise Leah O. Taylor, Birmingham TASKFORCE ON ADULT LITERACY DeborahAlley S mith, Binningham Ollie Blan,Birmingham Chair: John W. Hargrove.Binningham Lynne B. Kitchens, Montgomery...... 242 -4347 RayO. Noojin, Jr., Birmingham Vice-chair: DeborahJ . Long.Birmingham Ernest C. Hornsby.Jr .. Tallassee...... 283-6855 Sherry Collum-BuUer,Montgomer_q Laura Peck,Birmingham Board of Bar Commissioners Liaison: Sara A. McCivaren,Birmingham George Higginbotham.Bessemer ...... 425 -3214 Hon. JosephA. Colquitt, Tuscaloosa Young Lawyers' Representative: Susan E. Russ, Montgomery AmySlayden , /-/untsvi//e...... 533-7178 John Mark Hart, Bimiingham Staff Liaison: RaymondI.. Johnson, Jr .. Bim1ingham Keith B. Norman.il'/ontgomery...... 269-1515 Phillip A. Laird,Jasper 3 18 / September 1992 THE ALABAMALAWYER Cecil M.T ipton, Jr., Opelika Walter M. Northcutt, Auburn Porrest Latta, Mobile Carol H. Stewart,B irmingham Hon. Hugh Maddox, Montgomer.1/ Richard E. Plowers, Columbus, CA J.W. Goodloe, Jr., Mobile John W.Sha rbrough, Ill, Mobile Mark 0. Hess. Montgomery Thomas C. Logan.Birmingham Steve P. Brunson. Gadsden Benjamin B. Spratling, Ill , Birmingham TMK FORCE ON ALTERNA11VEMEmoDS OF TMK FORCE ON BENOI ANDBAR REIATIONS DISPUIE REsownON Chair: Chair: Hon. Joe Phelps.Montgomery ...... 832-4950 Marshall 'l'imberlake, Birmingham...... 25 1-8100 Vice-chair: Vice-chair: J. MarkWh ite, Birmingham...... 323-1888 Katherine 0 . Wilburn,Birmingham ...... 822 -2744 Board of Bar Commissioners Liaison: Board of Bar Commissioners Liaison: GeorgeW. Royer, Jr., Huntsville...... 536 -l 711 Conrad M. Fowler, Jr., Columbiana ...... 669-6783 YoungLawyers' Representative: YoungLawyers' Representative: LeeCopeland, Montgome ry ...... 834-1180 Mark Newell, Mobile...... 432-8786 Staff Liaison: Staff Liaison: Reginald T. Hamner, Montgome,y...... 269-1515 Keith 8. Norman,Montgomery ...... 269-1515 Members: Members: K. Rick Alvis, Birmingham Mark B. Craig,Decatur Duane Wilson,Tuscaloosa W. Keith Watkins. Troy Kenneth M. Schuppert, Jr .. Decatur K.W. Michael Chambers, Mobile Hon. Ben Mclauchlin, Ozark James H. Starnes, Birmingham Hon. Elise D. Barclay, Birmingham William AllenSmyly, J r., Birmingham MaryBeth Mantiply,Mobile George Beck. Montgomery Hon. Samuel H. Monk, II, Anniston Timothy C. Cann, Birmingham Joe H. Calvin, Ill , Birmingham William W. Smith, Birmingham Hon. Hugh Maddox, Montgomery Sue BellCobb, everg reen Hon. AubreyFord, Jr., Tuskegee Roger C. Allen. Birmingham WilliamT . Coplin,Jr ... Demopolis Donald C. McCabe. Daleville Hon. Donald H. Patterson, Florence Harry Asman,Birmingham Hon. Hardie B. J(imbrough,G rove Hill Janice H. Parker, Birmingham Hon. C. LynwoodS mith, Huntsville Thomas C. Keith, Huntsville Hon. William A. Jackson, Birmingham LisaJane t Naas,Huntsville W. MichaelAtch ison. Birmingham Lisa Bradford Hansen, Mobile James R. Shaw,Birm ingham William S. Halsey, Jr., Anniston John E. Byrd,Dothan William C. Somerville, Ill, Birmingham Caryl P. Privett, Birmingham Pournier J. Cale, Ill, Dothan James E. Williams, Montgome1y William C. Carn. Ill , Dothan Harold P. Herring. Huntsville Jack Clarke,Tuscaloosa Hon. EdwardB . McDermott,Mob ile Prank S. James, lll, Birmingham Hon. RobertC. Kendall, Mobile C. WinstonSheehan, Jr., Montgomery Hon. Tamara 0. Mitchell, Birmingham John L. Quinn. Birmingham Farrell Wright, Montgomery THENAIWM LlltmR, BAR DIRECTORY COMJIIITIEE ADVISORY Coll TO nIE BOARD OF BARf:xMUNERS Chair. Teresa R. Jacobs,Montgomery ...... 223 · 7355 Chair. Vice-chair: Rick Manley. Demopolis...... 289- 1384 W. Ronald Waldrop, VestaviaNi/ls ...... 9 79-5210 Staff Lia.ison: Staff Liaison and Publications Director. Reginald T. Hamner, Montgomery ...... 269- 1515 Margaret L. Murphy,Montgomery ...... 269- 1515 Members: Members: WinstonV . Legge,Jr., A.thens Laura L. Robinson, Montgomery CathyWright. Birmingham THE ALABAMALAWYER September 1992 / 319 MelissaC . Math.Monlgomerg CHARACTER ,llW Fnm:ss Co~ll\llTlll: Victor L. Hayslip, Birmingham Chair, Panel I: James C. Whiddon.[II , Mon/gomerg John P. Scott. Jr .• 8irmi11ghom...... 2SJ-8 100 WilliamR. Chandler,Montgom ery Christ N. Coumanis, Mobile Chair. Panel U: Kenneth R. Raines, Bag Nine/le Edward8. Parker. Jr .. il/011/gomerv...... 265· ISOO WilliamB. Woodward, Jr .. Nunlsville Chair, Panel 01: HowardMandell, Mo11tgom11r11 ...... - ...... - ..•.262· 1666 Board or Bar Commissioners Lia1'6n: CuJ:NrSECURIJY Ft~'DCo)OUTIBE Wade H. Baxley,Dothan ...... •...•.•...... •...... •.•...... 793-6550 Staff Liaison: Chair. Norma J. Robbins.Monlgomerv ....•...... 269-1515 James R. Seale,Montgomerg...... 834-1000 Members: Vitt-chair: PaneJ I: James S. Ward, Binnillgham ...... 879 -5959 Anthony Joseph. Birmingham Boardof Bar Commissioners Liaison: CharlesA. Powell.111. Birmingham William B. Matthews. Sr., Ozark ...... 774-8804 Panel II: Staff Liaison: Maibelh J. Porter, Birmingham ReginaldT. Hamner. Montgomerg.•...... •...... 269-151 S W. Michael Atchison.Birmingham Members: Panel UI: MichaelE. Ballard. Mobile James E. Williams, Montgomery LowellW omack. Birmingham W. H. Albrillon. IV.Andalusia Tom Nicholson. Jasper Alternates: A. Stewart O'Bannon, Iii, Plore.nce Julia Weller, 8/rminglwm Thomas L. Rountree. Opelika James ll. 13owlcs, Tallasse~ Mark Fuller. Enterprise CoRRECTIONAL INSITIUnONS AND PROCEDURES CoMMITfEE Co~ll\tm'EE ON CmZENSIIIP EDUCATION Chair: Chair: Tom Haas.Mobi/e ...... 432 -0457 T. Michael Brown,Birmingham ...... 52 1-8462 Vice-chair: Vke-chair: Connie Caldwell.Monlgomerg ...... 265-SSTJ H. Jerome Thompson.M oullon ...... 974-3007 Board or Ba.r Commissioners Liaison: Board or Bar Commissioners Liaison: GeorgeP. l'ord, Gaclsdm...... 546-5432 J. Tutt Barrell, ()f)(!lika...... 745-350.1 Young Lawyers·Representative: Young Lawyers'R epnsentali 326 / September 1992 THEALABA."IA LAWYER Staff Liaisons: TASKFORCE ON THE QUAIJ'IY OFLifE Keith B. Norman,Montgomery ...... 269-15 15 MiI ton Moss,Montgomery ...... 269-1515 Chair: Members: James Jerry Wood,Montgomery ...... 834 -3006 JefferyA. Foshee,Montgomery Vice-chair: Glen M. Connor,B irmingham WilliamGantt, Birmingham...... 251 -1193 Edward B. Raymon. Tuskegee WilliamKenneth Rogers,Jr., Birmingham Board of Bar Commissioners Liaison: Darlett Lucy,Mobile CathyWr ight, Birmingham...... 254 -l 000 Y.D. Lott, Jr., Mobile Young Lawyers' Representative: Leo E. Costello.Birmingham Stephen R. Copeland, Mobile...... 432 -675 l WilliamJ. Brower.Birmingham WilliamD . Nichols.Birm111gham Staff Liaison: Dona.IdM . Phillips, Lanett Keith B. Norman,Montgomery ...... 269-1515 WilliamS . Halsey, Jr., Anniston Members: LowellA . Womack,B irmingham PercyBadham. Birmingham BeverlyeBrady, Auburn James L. Birchall, Birmingham James A. Philips, Mobile Robert C. Tanner, Tuscaloosa James A. Tucker,Jr. , Jackson LynnW. J inks, Ill, UnionSprings Robert H. Allen,Mobile Frank W. Riggs,Montgomery Michael Simonetti,Birmingham Jim Sears. Tuscaloosa KendallW . Maddox.Birmingham C. William Davenport,Birmingham James E. Vann,Bim1ingham PROFESSIONALEcoNOMICS AND 'fEcHNOLOCV Linda S. Perry, Mobile Co Robert T. Cox,Anniston Shelbonnie Coleman-Mall,Mobile Chair: William C. Nolan, Birmingham RomaineS. Scott, Ill. Birmingham...... 328-8141 William AshleyHowell , Lil, Birmingham Sheree Martin, Florence Vice-chair: Cary CharlesSm ith, Birmingham LaVeedaMorgan Battle , Birmingham...... 254-3216 Young Lawyers' Representative: DuaneWilson. Tuscaloosa ...... 349-4300 Staff Liaison: TASKFORCE ON SPF.CIALl1ATION Keith B. Norman,Montgomery...... 269 -1515 Members: Chair: Philip C. Davis, Montgomery Will Lawrence, Tal/adega...... 362-0081 C. Porter Brock,J r., Mobile Vice.,chair: PatriciaCobb Stewart , Scottsboro William K. Bell, Huntsville...... 533-2410 John R. Calvin, Birmingham RobertL. Barnett,Birm ingham Board of Bar Commissioners Liaison: Salem Resha,J r., Birmingham A. J. Coleman,Decatur ...... 353-6824 GregoryA. Kennemer.Bbmingham Young Lawyers' Representative: Stan Field,Trussville HowardNeiswender , Tuscaloosa...... 349-4300 DanJ . Willingham, Cullman Robert D. McWhorter, Jr., Gadsden Staff Liaisons: Henry B. Hardegree, Montgomery Keith B. Norman,Montgomery ...... 269-1515 Charles1-1. Booth, B irmingham Robert W. Norris. Montgomery...... 269-1515 Samuel Fisher,Birmingham Tony McLain,Montgomery ...... 269 -1515 John RichardCarr igan, Birmingham Members: Scott A. Abney. Birmingham WilliamD. Coleman. Montgomery Thomas B. Prickett, II. Oneonta NickGaede, Jr . Birmingham WilliamB. Woodward.Jr., Huntsville BillJ ohnson, Tuscumbia Lum DukeSearcy , Opelika KathyMar ine, Carrollton RichardH . Cater, Anniston Hugh Nash,Oneonta Michael C. Quillen, Bilmingham Sam Rumore, Birmingham RandallM. Woodrow,Anniston Sue Thompson,Tuscaloosa G. DanielReeves, Shelby BillyCarte r. Montgomery THE ALABAMALAWYER September 1992/ 327 BillyWalton , Lafayette John C. Watkins. Jr., Tuscaloosa Robert J. Veal,Birmingham Anita Lynn Young,Montgomery WilliamA. Ratliff.B irmingham DavidR. Proctor, Montgomery Ralph HowardYeilding, Birmingham Dr. Arthur C. Sweeney,Montgomery Lucy C. Hicks. Birmingham John E. McCulley, Northport AliceM. Martin, Florence DonaldR. Hamlin, Pell City William Alexander Moseley, Mobile Frances R. Niccolai,Mobile Benny L. Roberts.Gadsden Jo AlisonTaylor , Birmingham Abram L. Philips, Jr., Mobile John E. Ott. Birmingham John PereyOliver. II. Dadeville MichaelL. Hall,B innin,qham Herndon Inge, JU,Mobile JeffreyH . Roberts,Cullman Gregg B. Everett.Montgomer.v W. DavisMalone , Ill, Dothan SUPRFJIIECoURT LIAISON CoMMmEE SPECIALLIAISON Col\11\IITIBEFOR 11fE Chair: BIRMINGIWI 0mCE OF THE IRS William0 . Scruggs. Jr .. Port Payne ...... 8 45-5932 Staff Liaison: Members: ReginaldT. Hamner. Montgomery ...... 269-1515 Harold Kushner, Birmingham Members: C ilbert Dukes. Ill, Mobile John A. Owens, Tuscaloosa Phillip E. Adams, Jr .. Opelika SPECIALLIAISON Co;\~DlTEE FOR TIIE SoumFASTREGION UNAU1110R1ZEDPRAcncE OF L\w Members: Gregory L. Leathbury, Jr., Mobile Chair: J. TheodoreJackson, Montgomery DavidB. Cauthen. Decatur ...... 353-169I Thomas J. Mahoney,Jr .. Birmingham Vice-chair. L. Bruce Ables,Huntsville ...... 533 -3740 Board of Bar Commissioners Liaison: Lynn Robertson Jackson, Clayton ...... 775 -3508 Col\fllmTEE ON S~CE ABUSE IN Socm1V Young Lawyers' Repre.sentative.: William 0. Walton, Ill, Opelika ...... 745-6466 Chair: Staff Liaisons: Patricia Shaner. Montgomery ...... 242-4116 Robert W. Norris, Montgomery ...... 269-1515 Vice-chair: Milton Moss,Montgomery ...... 269-1515 Jim Rives,Montgomery ...... 834-7680 VickiC lassroth,Montgomery ...... 269 -1515 Board of Bar Commissioners Liaison: Members: WaymanC. Sherrer, Oneonta ...... 625-5555 ThomasA Smith, Cullman Young Lawyers' Representative: Marlin V. MacLaughJin,Jr.,Jasper Arthur T. l'owell. Mobile...... 433-8310 HowardBelser, Decatur Brently A. Tyra, Birmingham Staff Liaison: Betty C. Love,Talladega J~eith 8. Norman, Montgomery ...... 269-1515 HarwellDavis. Ill, Nixson TN Members: Rufus E. Elliott, LIi,B irmingham Charles L. Denaburg,Birmingham Anthony C. Willoughby,Birmingham CliffordL. Calli s, Jr .. Gadsden NevaConway, Greenville Stephen I,. Sexton, Birmingham Clark Fine, Montgomery Robert E. Lee,Montgomery Edward Earl Davis, Montgomery EdwardM. Ceorge,Montgomery Joel Collins.Phenix City BetsyMartin Harrison, Birmingham Daniel Benton, Fairhope Pamela Baschab,Bay Minette John E. Byrd, Dothan John T. Harmon. Montgomery RichardA lexander, Mobile Ceary A. Caston, Mobile M. DaleMa rsh, Enterprise Or. Charles L. Jones, Troy J. Huntley Johnson, Dothan 328 / September 1992 THEAl.ABAMA L,\ WYER 1992-93 SECTIONS lions, defamation of business, stockholde r litigation, and AD1lflNISTRATI\IELAw employment relations. An annual seminar is usually held dur ing the annual meeting of the state bar. Section members are lawyers interested in administrative proceedings at the federal and state level. Members include Chair: government attorneys as well as private practitioners. The sec Lee E. Bains, Jr., Birmingham ...... 254-IOOO lion presents a program during the annual meeting of the Vice-chair: state bar and has been active in the implementation of the Lee Zell, Birmingham ...... 328-0480 Alabama Administrative Procedure Act. The section also spon Secretary/freasurer: sors lhe Eugene W. Carter Medallion, an award given annually Glen Waldrop, Birmingham ...... 581-0700 to a former public servant for excellence in balancing the Newsletter editor: rights of individuals against the interests of government. Patricia Mandt, Binningham ...... 521 - 8627 Chair: f loyd Sherrod, Florence ...... 767 - 2020 ColllMUNICATIONSL.\W Chair-elect OliviaH . Jenkins, Montgomery ...... 271 -7855 Attorneys who might be interested in joining this section Vice-chair: include those who have an interest in radio, television, cable, Charles Durham. Montgomery ...... 277 -2710 newspaper. magazine/bookpublicat ions, public utility or com Secretary: mon carrier issues (including cellular telephone service) and MerceriaL udgood,Montgomery ...... 264 -1471 related subjects such as defamation. privacy and public access Treasurer: law. Not only attorneys who represent businesses of this M. frank Caskey,Montgomer.11 ...... 242-7567 nature, but also attorneys representing municipalities on these Executive Committee: issues would likely be interested in this section. Alvin T. Prestwood,Montgomery ...... 264-6401 Chair: Al L. Vreeland,Tuscaloosa ...... 345-3440 E. Cutter Hughes, Huntsville ...... 517 -5152 Margaret Childers,Monlgome,y ...... 242- 7300 Vice-chair: Owen Blake, Binningham ...... 972-2556 Secretary/freasurer: Mark \Vilkerson,Montgomery ...... 265-1500 BANKRUPl'CYAND CoMMERCIALLAW The primary purpose of the Bankruptcy and CommercialLaw CORPORATION,BANKING AND BUSINESSLAW Section is to facilitate communication among its members concerning bankruptcy and commercial law matters and legal This section is involved in projects of interest to every mem decisions,with a viewtowar d promoting consistent application ber of the bar. The section works with the Alabama Law Insti of these laws in the various districts and circuits of Alabama. tute, revising the corporate laws of Alabama, and publishes a The section has four standing committees: bankruptcy practice; newsletter for section members. commercial practice; CLE/annual meeting; and communica Chair: tions/newsletter. Additional committees are appointedon an ad George Maynard,Binningham ...... 254-1000 hoc basis. The section sponsors CLEprogra ms and a law school Vice-chair: writing competition. and also is involvedin promoting legisla Neil C. Johnston, Mobile...... 432-55 1ll tion needed in the commercial law prdctice. Secretary/l'reasurer: Curtis Jones, Binningh am ...... 945-6509 Chair: Council Members: Robert B. Rubin, Birmingham ...... 251-3000 B. Judson Hennington, Ill, Huntsville ...... 730-252 1 Vice-chair: Joseph W. Spransy. Birmingh am ...... 254-7252 Richard H. Cater. Anniston ...... 237-8515 Walter R. Byars,Montgomery ...... 832-SSOO Secretary: Robert P. Reynolds, Tuscaloosa...... 345-6789 Treasurer: CRIMINAL Lo\\V M. Donald Davis, Jr .. Mobile...... 434 -0109 The Criminal LawSection is comprised of bar members hav ing an interest in matters relating to the criminal justice sys BUSINESSTORI'S ANDAIVITl'RUST LAw tem of our state and federal courts. The area of criminal law constantly is changing and provides many opportunities for This section is concerned with business litigation, including active discussion and input. Involvement in this section wiII antitrust. trade regulation, interference with business rela- provide members with contacts throughout the state. THE ALABAMALA WYER September J992 / 329 Chair: Immediate Past Chair: George Higginbotham, Besseme,· ...... 425-32 14 Randall W. Nichols, Binningham...... 930 -9000 Chair-elect: Executive Committee: Ken Moore, 8e.tsemer...... 428-4 141 J. MichaelManasco. Montgomery ...... 270-1300 Secretary/Treasurer: William K. Bell,Hunlsville ...... 533 -2410 Rebecca Green, Russellville...... 331- 0800 William W. Lawrence, Talladega...... 362--0081 Board Members: J. Timothy Smith, Birmingham...... 870-3363 Floyd Likins, Opelika...... 826-8614 J. FloydMinor, Montgomery ...... 265-6200 Bill Blanchard, Montgome,y ...... 269-969 1 Thomas I>.Mitchell, A lbertville...... 878-5002 H&umLAw This section is open to members of the plaintiffs and defense El'.VIRONl'IENTALLAw bar who are interested or involvedin the ever-broadeningi nter Services and activities or the Environmental Law Section face between law and health care, including but not limited to are proressional improvement in the field of environmental various state and federal issues such as Medicare fraud and law, analysisand reporting to members or developments in the abuse, payment problems, merger and acquisition of health care field.and communication with other lawyerspracticing in the entities, antitrust, fiscal management, peer review. provider environmental law area. malpractice, individualrights, and supreme court actions. Chair: Chair: Karen LaMoreauxBryan, Tuscaloosa ...... 752-5543 Lant Davis, Birmingham ...... 52 1-8623 Chair-elect: Vice-chair: Thomas L. Johnston. Montgomery...... 271 -7855 Joan Ragsdale, Bim1ingham...... 930 -5242 Vice-chair: Secretary/l'reasurer: John P. Courtney, IU,Mob ile ...... 432-4481 Rick Marris, Montgomery...... 242-5052 Secretary: Council Members: Allen S. Reeves,Mobile ...... 432 -55 l I Charles Durham, Montgomery...... 277 -2710 Treasurer: Gregg Everett, Montgomery...... 293-8737 0. James Goodwyn, Jr.,Non/gomery ...... 242 -3165 Joe Campbell.Huntsville ...... 535-l l 00 Immediate Past President: Denna Bertucci Waddell, Mobile...... 639-0188 Nell C. Johnston, Mobi/e...... 432 -551l Newslette.r editor: Lo\BORAND E~IPWYMENf Lo\W Duane Wilson,Tuscaloosa ...... 349-4300 Program Committee Chair: This section includes lawyers rrom throughout the state Neil C. Johnston, Mobi/e...... 432 -551l whose practice involves work in the areas of labor law, fair Legislative Committee Co-chairs: employment law, employee benefits law and occupational safe Craig Kneisel, Montgomery...... 242-7300 ty and health law. In addition to providing a Forum for the OliviaJenkins , Mon/gomery...... 271-7855 exchange or information and ideas, the section sponsors an Membership Committee: annual two-daylabor law seminar and, with the labor law sec Blane ii. Crutchfield, Mobile...... 432-55 1l tions of various other state bars. co-sponsors an annual multi state labor and employment law seminar. FAMIIYLAW Chair: Joseph W. Spransy.Birmingham ...... 254 -7252 The Family LawSec tion of the AlabamaState Bar was estab Vice-chair: lished in 1984. Jt publishes a newsletter for the benefit of fam Gregory B. Stein, Mobile...... 433-2002 ily law practitioners. It also has a legislation subcommittee Secretary/Treasurer: whose fu11ctionis to consider state and federal legislation in Jay D. St. Clair, Birmingham...... 52 1-8344 the area of family law and the law of domestic relations and to ExecutiveComm ittee: suggest needed reforms. The section has a legal education John J. Coleman, m,Birmingham ...... 251-8100 subsection which presents programs for the members. Paul D. Myrick.Mobile ...... 432-3444 LeslieM. ProII , Bim1ingham...... 322 -Jl 00 Cha.ir: DavidSmith. Birmingham...... 254-IOOO WilliamR . Blanchard, Montgomery ...... 269 -9691 Vice-chair: Amy Slayden, Hunfsville...... 533-7178 LrnGATION Treasurer: John C. Calhoun, Jr., Birmingham...... 251-4300 The Litigation Section seeks to (! ) provide a Forum where Secretary/Newsletter editor: all trial attorneys may meet and discuss common problems: Herndon Inge, Ill, Mobile...... 432 -1444 (2) provide an extensive educational program lo improve the 330 I September 1992 THE ALABAMALAWYER competency of the trial bar: and (3) improve the emciency, Chair: uniformit)'and economy of litigation and work to curb abuses Thomas F. Garth, Mobile...... 432-4481 or the judicial process. Vlce-chair: Chair: Scott E. Ludwig,Hw1tsville ...... _...... 517-5149 Secretary: AlvaC. Caine, Birmingham ······-··--·-···················· ..... 328·5330 Vice-du Ir: John H. Cooper,Birmingham ...... - ...... 930-5108 RichardCill, Montgomerg...... 834- l 180 Treasurer. Secretary/Treasurer: J. ReeseMurray, Ill, Birmingham...... 326-5386 John P. Scou, Jr., Birmingham...... 25 1-8100 Newsletterco-chairs: Alex B. Leath, Ill. Bim1inghom...... 251-8100 ThomasJ. Mahoney, Jr.. Binnbwham...... 521-822 4 On.,GAs AND MINERAL L\w The Oil, Cas and Mineral Law Section was established In WORKERS' CO!l1PF.NSA110NIAW 1976 and consists of an oil and gasdiv ision and a hard miner als division. The primary purp0se of the section ls to keep Its The Workers' Compensation Law Section seeks to raise the members apprised or developments in the law. and this ls a1\/arenessand understanding or the bar community with accomplishedby co·sponsoringwith ABICLEan annual semi regard to workers"compensation legal matters. nar on oil. gas and mineral law, as well as sponsoring a ·mini seminar" at the section meeting during the annual meeting or Chair: the slate bar. Currently, the section is preparing a handbook Charles F. Carr. Birmingham...... 328-8141 on oil. gasand mineral law in Alabama. Vice-chair: WayneR. Wolfe,Huntsville ...... -.534-2205 Chair: Secretary/Treasurer: James J. Sledge, Tuscaloosa...... 345-5440 Cary C. Pears, Birmingham...... 254 -7090 Vioe-chnir. Oil nnd Gas: Past chair: Thomas W. Holley.Tuscaloosa ...... 345 -1577 Steven W. Ford, Tuscaloosa...... 349-2000 Vice-chair, Hard Minerals: Newsletter chair: Harold D. llice. Jr.. Birmingham ...... 481-6105 John J. Coleman. Ill. Birmingh,,m ...... 22 6-34) 5 Secretary: Seminar chair: WilliamE. Pritchard, Ill, Mobile ...... 432-4481 J. Fred McDuff.Bi rmingham ...... 945-65 11 Treasurer: Council Members: DuaneA. Graham.Mobi/e ...... 432 -6751 Stephen E. Brown,Birminghom ...... 254-1023 RobertWyeth Lee,Jr., Birmingham...... 323--1061 REALPRol'ER'IY, PRo&\1E A,nTRusr L,w RandaUB. James, Non/gomerg ...... 262-0500 Thissection cooperates with and assiststhe Cumberlandlnsti· lute for Continuingl.egal Education in preparingand pnsenting Yo~c L\wkERS' SECTION programsrelating Loreal property.trust and probate matters for membersof the AlabamaState Bar. The Stttion. also In coopera The Young Lawye.rs'Section or the Alabama State Bar is tion with the CumberlandSchool of Law. publishesa periodic composedof all lawyerswho are 36years or age and under or newsleller reviewingrecent court decisions dealing with real who lm•e been admitted to the bar for three years or less. The property, trust and probate matters and reports oU,ermat ters of section conducts various seminars throughout the year for current interest relating lo these topics. An annual seminar Is lawyers and other professionals. lt also sponsors service pro held in conjunction with the annual meeting of the statebar. jects designed to aid the public in their understanding of the Chair: law and assist in solving legal problems. There are no dues Robert R. Sexton.8im1ingham ...... 324-4400 since persons who are members of the Alabama Stale Bar and Vlce- THEALABAMA LAWYER September 1992 / 33 I I OPPORTUNITIES I The followingprograms hove been approvedby the Alabama Mandatory Conlinuinf!legal Education Commissionfor CLE credit. For informalion regardingother availableapproved programs, con/ad Diane Weldon,admin istrative assistant for pro grams, at (205)269-1515, and a completeClE calendarwill be mailed to you. 24 Thursday Credits: 6.0 SEPTEMBER MOTIONSPRACTICE (video rep lay) (715)835-7909 Sheffield. RamadaInn 17 Thursday AlabamaBar Institute ror CLE KEY I SSUESIN WETLANDS Credits: 6.0 OCTOBER REGULATIONIN ; \l.ABAMA (800)627 -6514 Montgomery National BusinessInsti tute, lnc. MOTIONSPRACTICE (video rep lay) 2 Friday Credits:6.0 Cost:$128 Dothan,Ramada Io n COLLECTIONS (715)835 -7909 AlabamaBar Institute for CLE Birmingham,Harbert Center Credits:6.0 Alabama Bar Institute for CLE 17-18 (800)627-65[4 Credits:6.0 THE ADA& ITS EFl'ECTON (800) 627-6514 WORKERS'COMPENSATION ADVANCEDREAL ESTATE LAW Birmingham. WynfreyHotel INALABAMA COMPLYINGWITH THE AMERICANS AlabamaCom mittee on Workers' Huntsville WITHD!SAB LLITIESACT Compensation National BusinessInstitute, Inc. Birmingham,Wynfrey Hotel Credits:6.3 Cost:$75 Credits:6.0 CumberlandInstitute for CLE (205)521 -8304 (715)835-7909 Credits:3 .0 (800)888 -7454 18 Friday 25 Friday MOTIONSPRACTICE SMALLESTATES: PLANNING & 8 Thursday Birmingham,C ivic Center ADMINISTERrNG REALESTATE Alabama Bar lnstitute for CLE Birmingham, CivicCenter Montgomery.Ma dison Hotel Credits:6.0 Alabama Bar Institute for CLE AlabamaBar Institute for CLE (800) 627-6514 Credits:6 .0 Credits:6.0 (800) 627-6514 (800) 627-6514 B;\S!CI SSUESIN CONSUMER BANKRUPTCY KEYISSUES IN AOVISJNGELDERLY 9 Friday Birmingham,Wynfrey Hotel CLIENTS REALESTATE CumberlandI nstitute for CLE Birmingham,Wynfrey Hote l Birmingham, CivicCenter Credits:6.0 CumberlandInstitute for CLE AlabamaBar Institute for CLE (800)888-7454 Credits:6.0 Credits:6.0 (800)888 -7454 (800)627 -6514 BASICISSUES IN BUSINESS BANKRUPTCY 29 Tuesday HOWTO TRY AU TOMOBfLETORTS Birmingham,Wynfrey Hotel IMPACTOf'THE CML RIGHTSACT LITIGATION CumberlandI nstitute for CLE Of' 1991 Birmingham. WynfreyHotel Credits:6 .0 Mobile Cumberland Institute for CLE (800) 888-7454 NationalBusiness Institute , Inc. Credits: 6.0 Credits:6.0 (800)888-7454 23 Wednesday (715)835 -7909 ADVANCEDREAL ESTATE LAW IN 14 Wednesday ALABAMA 30 Wednesday BASICBANKRUPTCY LNALABAMA Birmingham LMPACTOf' THE CML RLGHTSACT Birmingham NationalBusi ness Institute, Inc. OF 1991 NationalBusiness In stitute, Inc. Credits:6 .0 Montgomery Credits: 6.0 (715)835 · 7909 NationalBusiness Institute, Inc. (715)835-7909 332 I September J992 THEALABAMA LAWYER 15 Thursday 29 Thursday AlabamaBar Institute for CLE BASIC BANKRUPTCYIN ALABAMA TORTS Credits:6.0 Huntsville Huntsville, CivicCenter (800)627-6514 NationalBusiness Institute, Inc. AlabamaBar Institute for CLE Credits:6 .0 Credits:6.0 BASICSOF' BANKRUP TCY (715) 835-7909 (800)627 -6514 Birmingham, CivicCenter AlabamaBar Institute for CLE 16 Friday 30 Friday Credits:6 .0 THE BASICSOP PRACTICEIN TORTS (800)627-65 14 PROBATECOURT Birmingham,Civic Center Mobile,Admiral Semmes AlabamaBar Institute for CLE FRAUDLITIGA TIONIN ALABAMA CumberlandI nstitute for CLE Credits:6.0 Mobile Credits: 6.0 (800)627-6514 National BusinessI nstitute, Inc. 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Birmingham, HooverComplex DAMAGES Credits: 6.0 CumberlandI nstitute for CLE Birmingham,Civic Center (715)835-7909 Credits:6.0 (800)888-7454 Mandatory Continuing Legal Education 27 Tuesday OSHACOMPLIANCE UPDATE Commission 1992°93 INALABAt"IA Birmingham Lynn RobertsonJackson . chair, MCLE Commi ssion staff NationalBus iness Institute, Inc. Clayton, Alabama KeithB. Norman, directorof programs Credits:6.0 J Mason Davis, Birmingham Alabama State Bar (715)835 -7909 Geo,ge W. Royer,Jr .. Huntsville Montgomery SamuelA. Aumcre, Jr., Birmingham (205) 269-1515 28 Wednesday (800) 354-6154 John A. Russell, Ill, Aliceville OSHACOMPLIANCE UPDATE Conrad M. Fowler, Jr .• Columbiana INALABAMA DianeWeldon , administrative Caine O'Aear, Ill, Mobile Huntsvi!le assistant for programs National Business Institute for CLE Daniel T. Warnes. Guntersville Alabama State Bar Credits: 6.0 James E. WIiiiams,Montgomery Montgomery (715)835-7909 THE ALABAMALAWYER September 1992/ 333 CommercialLitigation in the UnitedStates Supreme Court by ERIC G. BRUGGINK Introduction ment into natural cleavage planes. IL contract claims are for pre-contract Byth is article J hope to furnish some can be approachedby subject matter, by award injunctive relief, for example, to Lhing oi a Cook's tour of commercial forum. by statutes , by type of relief have a bidder reinstated into competi· claims against the federal government. sought, or even by underlying U1emes. Lionfor a contract award. Litigation against the government can The troub le with strik ing all these About 25 percent of the cases are tax generate some of the most stimulating planes is that they intersect, and the refund claims. In addition there are a and challenging litigation in the federal small number or declaratory judgment courts. The issues are often complex and actions brought by organi1.<1tionsclaim frequently have far-reaching impact. ing to be tax exempt under I.R.C. § The subject is sufficiently broad and 501(c)(3). fraught with controversiest hat the pre It is as much the The court also hears certain types or sentation has to be in outline form, with civilian and military pay claims. The highlights on some of the hazards and duty of Government simplestexample of a civilian payclaim3 recurring themes. would be one brought under the Fair At a tr ial level, commercial claims to renderprompt Labor Standards Act against a federal against the federal governmentare scat agencyemployer , typically for a group of tered across five fora - the United justice against itself, workers seeking overtime wages. Mili States ClaimsCourt . the district courts, tary cases typicallyinvo lve claims that a the various boards of contract appeals. in favor of citizens, serviceman was illegally separated or the Tax Court, and the Court of lnter denied disability retirement. nationa I Trade. My focus will be the as it is to administer Another part of the court's jurisdic United States Claims Court, however. tion, and perhaps one of the most That is partly because it is what I know the same between important ones in terms of impact or most about, and partly becausevirtually dollars, if not in terms of numbers of all commercialcla ims against the feder private individuals. cases, is takings claims under the Unit al government either take place in the ed States Constitution. This is particu Claims Court or could be litigated in larly true in view of the increasing some form in the Claims Court.I Abraham Lincoln number of claims made for regulatory The discussionbegins with the prin takings. or "inverse condemnations." ciple of sovereign immunity. The bal The balanceof the court's cases are pri ance will set out the sources and the marily made up of Indian claims, limits of Claims Court jurisdiction over result tends to look like a pile of rubble. claims of patent infringement by the various subject matters, and explain The simplest way to get into the sub government, and claims under a statu parallel or similar litigation in other ject is to describe what l mean by a tory ent itlement scheme. such as a jurisdictions. The article will conclude commercial claim. That, in turn, is done grant-in-aid or agricultura l subsidy with a brief discussion of some pecu most quickly, if perhaps superficially.by program. liarities and common pitfalls. listing the types of cases our court can What I mean to excludefrom ihe defi and cannot hear. About forty percent of nition of commercial suits are tort the Claims Court docket2 consists of claims, declaratory or injunctive relief I. OVERVIEW : WHAT IS A contract cases.The vast majorityof that sought under the Administrative Proce COMMERCIAL CLAIM? contract jurisdiction is limitedto claims dures Act, Social Securit)' Act claims, There are several fracture points for money that is presentlydue . i.e.. not most claims by civilian employees.and dividing Litigation against the govern- for declaratoryrelief. A small fraction of other suits of similar character . 334 / September I 992 THE ALABAMALAWYER Although such cases can have direct or the Treasury, but in Consequence of Richmond example, the personnel offi indirect monetary fallout, most people Appropriationsmade by Law." cer had auU1ority to act. The advicewas would not consider them commercial There are at least three - for lack of a just wrong. Suppose the following. claims, and they cannot be brought in better word - ''elements" of a waiver of Congresshas appropriated monies that the Claims Court. They have historical sovereignimmunity that haveto be con the Air Force may use to build new run ly been within the jurisdiction of the sidered. Arguably only the last ways. Your client gets the contract. In district courts, or more recently, in the element - creationof a forum for hear the midst of performance. one of the case of personnel claims, of the Merit ing a certain type of claim against the government engineers, who acts like he Systems Protection Board. government- truly constitutes a wai11- knows 111halhe's doing, tells the con er of sovereign immunity. The Supreme tractor to use a higher quality of con Court has taught, however, that the pri crete. Unknown lo the contractor, the II , THE ESSENTIAL INQUIRY : mary jurisdictional statute applicable to engineer has not been instructed by the HAS SOVEREIGN IMMUNITY the Claims Court, the Tucker Act, 28 Contract ing Officer to make such a BEEN WAIVED? U.S.C. § 149J(a)(l) (1988), discussed change. The engineer has no indepen The beginning and ending point of below, creates no substantive right to dent authority to act. The Contracting any discussion about commercial relief. Havinga forum with no substan Officer, who has been delegated authori claims against the federal government tive right is small consolation, so I prefer ty to make amendments to the contract, has to be sovereign immunity. As a to think of these three elements as nec is unaware of the instructions . Your principle it may be under assault and essaryto "perfect" a waiver of immunity. client's request for extra compensation out of vogue in various quarters, but it The first element is best illustrated would probably be turned down, unless nonetheless forms the backdrop for all by a 1990 decision of the Supreme the Contracting Officer ratified the suits in the Claims Court. Despite the Court, Office of Personnel Manage instructions. The reason is that there is ovenvhelming impact of the adminis ment v. Richmond, 496 U.S. 4 14 no such th ing as apparent authority trative state, and the fact that the gov (1990). Richmond was a federal annui when you deal with the government. ernment is constantly involved in law tant. He was conce rn ed about the The client assumes the risk of making suits, all the basic underpinnings of amount of outside income he could certain that the person it deals with has sovereign immunity still exist, particu earn before jeopardizing his annuity. actual authority to obligate U1egovern larly when it comes to recovering He called his former agency and spoke ment. In other words, only someone money damages. Even though the prin with a personnel specialist, who gave within the chain of delegated authority ciple is arguably· pre-constitutional, it him a figure. Richmond, in reliance on from Congress through the Executive clearly has its plainest manifestation in the specialist's representation, earned branch can obligate federalf unds. Article I § 9, clause 7 of the Constitu up to that amount. It turned out, ho\v· The third element of waiver is for tion: "No Money shall be drawn from ever, that the statement was wrong. He Congress to create a forum for suits. had exceeded the statutory Iimit and For decades after the country's found his annu ity was reduced. Richmond ing, there was no general waiver of E,ric Brug glnk sued for the withheld amount, pointing sovereign immunity. Por example, if Judge Bruggink to a classic case of estoppel. Result? someone had a contract with the gov ,vas nominated by President Reagan The Supreme Court held that he could ernment on which he was not paid the and confirmeda s a not recover. A federal employee, even full amount, the only recourse was lo Judge ol the United one acti ng within the scope of her get a private bill through Congress. States Claims Coun on Ap ril 15, 1986 employment, cannot waive the govern That circumstance has changed dra, He is a cum laude ment's right to insist on compliance matically. The district courts , the gr aduate ol Auburn with the statu te. Why? Because Claims Court, the 'l'ax Court, and vari University. receiving his bachelo(s degree Congress only waivedsovereign immu ous boards and administrative agencies in 1971, a'1d master's nity to the extent set out in the statute. have been given jur isdiction to hear degree in 1972. Judge Bruggink received his To go beyond that would mean that a suits against the government. These J.O in 1975 from Universily or Alabama School o1 Law, whe,e he was note and com~ single government employee, and not delegations will be examined below in ments editor of the Law Review Congress, had access to the Treasury. the context of the various types of He was appoinled direc to r, Offi ce o r One step, therefore, in circumventing claimsagainst the government. Appeals Counsel ol the U.S. Meri! Systems Pro1eclion Board, ,n November 1982, and sovereign immunity is that your client The p<>intis, when suing the govern served there until his appointment al the must be linked to an appropriation of ment, a litigator has to address all three Claims Coull He served as law cle1k 10 Chief funds. In other words, Congress has to concerns: 1) Is there some legislation Judge Frank McFadden of the Norlhem Dis, t1ic1o f Alabama, and then was an associate have intended that your client, under (or a constit utional provision) that at the Dothan firm of Hardv,ick, Hause & Sag. the particular circumstances, falls into links mlclient to an appropriation of 1esL From 1977- 79, he was ass,s1ant director a class of persons or entities that could funds? 2) Were the government ol lhe Alabama Law lnstilute, and from 1979- 82 was an ass0ciate with the Montgomery get money out of the Treasury. actions on which the litigator is relying firm ol Steiner, Crum & Baker The second element has to do with taken by persons authorized to act? 3) Born in Kahdjati, Indonesia of Dutch pat• authority of the government employee Is there a forum that has been autho eots. he becamea naturah2edcitizen of the United States in l960. with whom your client deals. In the rized to hear claimsof lhis'lype? THE ALABAMALAWYER September 1992/ 335 These concerns are not tri vial. Congress. It had both appellateand trial town counsel are normally allowed to Although many of the paths through functions. Those functions were split in appear by telephone. There is no right the Claims Court are well-worn, they 1982, with passageof th~ Federal Courts to a jury. In the absence of a specialized are narrow. Small deviations can lead to Improvement Act.6 The old Court of statute. the limitations period applica unexpectedand costly results. To use an Claims ceased to exist7, and two new ble to actions brought in the Claims analogy from the ring toss booth at the courts were formed: the United States Court is six years.9 The court has its carnival: You don't get credit for lean Court of Appealsfor the Federal Circuit own set of procedural rules; but they ers. Similarly, in the Claims Court (and and the UnitedStates Claims Court. are largely patterned after the Federal the same point is true for other juris The Federal Circuit is an Article 111 Rules of Civil Procedure. The Federal dictions that handle money claims), you appellate court. It has exclusive Juris Rules of Evidenceare applied. The court have to precisely ring the boltle. Any diction to hear appeals from the Claims has 16 active judges, 1vhoare appointed thing else drops into that black abyss Court, the Merit Systems Protection by the President, with the advice and called sovereign immunity. With that Board, the Court of Veterans Appeals. consent of the Senate.10 The judges sit long introduction, I want to focus on the Court o( International Trade. and separately, and their decisions are not the types of cases the Claims Court han the various boards of contract appeals.8 binding on each other. dles. It is also the on ly circuit court that The United Slates is always the named hears appeals from all the district defendant in the Claims Court. It is rep courts in cases involving patents or resented by the Department of Justice. Ill. JURISDICTION OF THE cases arising under the Little Tucker Although the government cannot initi CLAIMS COURT; CONTRAST Act, to be discussedbe low. ,,te claims in the Claims Court , as a WITH OTHER FORA The Claims Court is an Article I trial defense,i t can assert any set-offor coun The Court of Cla.ims. our predecessor court. Its jurisdiction is geographically terclaim it has.11 Claims Court rules cou,t, was established in 1855.s Its ini broad (nationwide). but substantively permit third-party practice, although no tial role was lo issue advisory opinions narrow. Fundamentally, it hears com recoverycan be directly obtained against to Congress about disposition of what mercial money claims against the feder a third-party defendant. Instead, if an were, effectively, equitabl e claims a I government. All filings are done in ent ity has been properly joi ned as a against the government. It eventually Washington, D.C., but trials are held third-party , the results of the Claims was made a real court, whose decisions anywhere in the country. For court Court litigation may be asserted against did not have to be approved by room activities short of trial, out-of- it elsewhere. This does not n,n afoul of the seventh amendment. Maryland CasualtyGa. v. UnitedSta tes, 135 Ct. Cl. 428, 141F . Supp. 900 (1956). The single most important piece of jurisdictional legislation with respect to the Claims Court is the Tucker Act. It is fur more than seventy years Levy's found at 28 U.S.C. § 149J(a)(l ), This statute was passed in basically its pre Fine Jewelry has served the southeast as sent form in 1887. It gives the Claims Court trial jurisdiction over three class a purchaser and broker of estate jewelry. es of claims: ~xpress or implied-in-fact We provide evaluation, appraisaland contracts; t3 claims based on the fifth amendment to the Constitution: and liquidation of fine jewelryassets. claims founded upon any act of Congress or regulation o( an executive Please call our estate jewelryspe cialist department U1atcan fairly be construed Charles L Denaburg and Jared Nadler to man date the p·ayment of money. What these types of cases have in com for a confidential consultation. mon is that the government has in effect made a promise to pay money to 205-251-3381 someone. By judicial gloss. it is clear that U1emoney at issue has lo be due. In other words. the court does not, at least t~ JEWELRY,JNC. under the Tucker Act, have authority to 2ll 62 nd Ave.Nort h• Birmingham, Alabama award declaratory relief.14 There is a Dedicatedto the ServiceStan dardsor our Fanlily Since 1922 comparable provision, called the Little Tucker Act. that gives the district courts jurisdiction over identical types of cases, so long as the amount in controversy is not more than Sl0,00-0.15 The Tucker 336 / September 1992 THEALABAMJ\ LAWYER Act specifically excludes jurisdiction claims are subject to Lhe general six· was breached. This has been construed over tort claims. year limitationsperiod. in a way similar to the standard of It is worth emphasizing that the Historically.the ClaimsCourt has not review applied by district courts under Supreme Court has held that the Tuck had jurisdiction to grant injunctive or the Administrative Procedures Act.30 er Act does not create a substantive declaratory relief in the absence of a The CO's decision is only m,ersed if it right to collect money damages from particular legislatl\'e grant. The claim. is found to be arbitrary. capricious, an the government.16 Those substantive in other words, must be for money abuse of discretion. without rational rights have to be elsewhere found in presentl)•due. This limitation has also basis, or violativeof lawor regulation in contracts. the Constitution. statutes. or been applied in Lhe context of Claims a prejudicialfashion.JI executjveregulations. Court CDAclaims. Thus. if a contractor There are other jurisdictional statutes lias been default terminated by the go\t· B. C.onelllullonal takings claim s relating to commercial claims. For sake ernme nl. it cannol challenge tha t The only constitutional provision that of brevity, they will be considered in the action unless it has "monetized" the has been construed as allowing a money larger context created by the more per controversy either by subm itting a recoveryunder the Tucker Act32 is the vasiveTu cker AcL claim to Lhe CO for termination dam rilth amendment takings clause, which ages. or by appealinga final decisionon obligates the government to pay for the A. Conlncl claims a government demand for return of value of private property it lakes for Virtually all contract litigation monies.26In this respect. the boards of public use. These cases. which are against the federal government is now contraet ap~al have broader jurisdic referred to as "inverse condemnation" governed by the Contract Disputes Act tion. The F'tdtral Circuit has held that proceeding.s,tend to fall into two types: of 1978. 41 U.S.C. U 601-613 (19881 the boards may hear "naked" appealsof physical im•asion or destruction cases, ("CDA"). The CDA has revolutionized a default terminatlon.27 and claims based on regulatory or leg how most contract actions against the islativetakings. What they have in com government are htii1ated.The act sets Pre -cont ract award injunctive mon is that some officialaction33 of the up a compulsoryadministrative dispute reUef United Slates go,,ernment has deprived resolution 1irocess for most types o( There is one area in which the Claims the plaintiff of the possession, use or contracts. It creates the role of a Con Court, as well as other fora, has been value o( property.They are thus distinct tracting Officer( ''CO").Th e contractor given purely injunctive powers in deal from (ormnl condemnation proceed must get ils opera ting instruct ions ing with contracLd isputes. The Federal ings, which are initiated by the govern through the CO,and all claims must be Court s Improvement Acl gave the ment itself and have to be broughl in submilted to the CO. Although the Claims Court author ity to granl pre the district courts. The lssue in the ial· administrative process is compulsory, con lracl award injunctive relief to a ter proceeding is not whether the gov final decisions on administrative claims bidder, if the complaint is filed before ernment has taken the property, but are not. however, entitled to a pre the contract is awarded. 28 U.S.C. § only what it is worth. In an inversecon sumption o( correctness if they are 149l(al(3). There are comparable pro demnation suit, the plaintifffirst has to appeated.17 cedures ava,lable before the General establish that the government action Appealsof a final decision can go to Services Board of Contract Appeals constituted a taking, although valuation either Lht ClaimsCourt or to one of the ("CSBCA"), and the GeneralAccounting can alsobecome a major issue. numerous agency boards of contract Office ("CAO"). The CSBCAhandles The types of casesadjudicated under appeals.The limitations period is differ claims Involvingso licitations for pur U1etaking.s clause can be illustrated by en L, however. The contrac tor has 90 chase o( automatic data processing listing some o( the judgments entered days from n nnal decision to appeal to a equipment. 40 U.S.C.§ i59 0988) . The in the Claims Court within the last two board, IS or one year to go to the Claims CAO (Comptroller General) can hear all year~. The figure in parentheses is the Court. It CJnnoldo both.20 The district other pre-award claims. 31 U.S.C. § amount recovered:d enial of dredge and courts have no ju risdiction under the 3552 ( 1988). Most bid protests go lo fill permit under Clean Water Act.Leve COA.Th e balnnce of whal l will say either of these twoentities . ladiesJlarbor, In c. 11. United States. 21 about the CDAis set out in Part IV. deal lf the contract has already been Cl. Ct. 153(1990) ($2,650,000); Florida ing with some common pitfalls. With awarded,a suit for injunctive relief has Rock Industries, Inc. 11. UnitedStates. respectlo the COA.there are many. to be brought 1n district court.28 So 21 Cl. Ct. 161 (1990) (Sl,029.000J: Those contract cases that are still long as the complaint is llled prior to almond orchard destroyed by lowered brought directly under the Tucker Act, award, however, subsequent issuance oi water table resulting from federal irri as owased 10 the COA.typically involve the contract will not di,"estthe Claims gation project. Clgde Baker, el al u. implied-in-fact contracts,22 or contracts Court of jurisdiction.29 UnitedStates. No. 83-675C(Cl. CL OcL largely controlled by regulations. such The standard o( review in bid disputes 22. 1990) (S1.250.0001: legislative des as price-support or grant-in-aid pro is much narrower than it is wilh respect ignation of prl\tale lands as an "addi grams.23 contracts in which the govem to disputes arising out o( performance tion" to national park. Perch Assoc., men l is sellinll, rmher than buying. of awarded contrac ts. The issue is ltd. v. UnitedSlates, No. 89CV-6JO (Cl. goodsor services,2~o r other unique cir whether the implied contract of ;,fair C1.Dec. 18, l990) ($80,884,995); effect cumst.1nces. 25 Tucker Act contract and honest" consideration o( the bid of Surface Mining Control and Recla- Tl IE ALABAMALAWYER September 1992 I 337 mation Act's34 pro hibition on surface defic iency cases brought in the Tax ref und cla im on t he ot her (distr ict mining of property, Whitney Benefits, Court. See I.R.C. § 6213. court or Claims Court), is whether the Inc. 11. United Stales, 926 P.2d 1169 The second type of tax case is one for client want s to pay the deficiency up (Fed. Cir . 1991) ($60,296,000) : BHP a declaratory j udgment that an organi ir ont. and if successful. collect back Utah In/"/, Inc. 11. United Stales, No. zati on is tax exempt under section interest. Also, as in the district courts, 86CV-565, (Cl. Cl. Dec. 20, 1990) 50l(c)(3) of the revenue code. The U1e range of discovery available in the ($7,500.000); failure to take all property Claims Court , the Tax Court , and th e Claims Court is broader than that typi right s as.~ociated with condemnation of Distr ict Cour t for t he District of cally employed in the Tax Cour t. land for White Sands Missile Range, Columbia share concurrent ju risdict ion Because appellate review of Tax Court McDonald 11. United Stales, No. 84CV- to hear such cases.38T hese are de novo decisions and decisions of local district 403 (Cl. Ct. Mar. 21, 1991) ($650,000): determinations, but they are based on courts is to the regional circ uit court , destruction of land by recurr ent flood the record assembled before the Com attorneys sometimes have the option of ing , caused by federal channelization missioner of the ms.39As to the rea picking a more favorable forum. They project, Turner u. United Stales, 23 Cl. sons stated in the Commissioner's deci may prefer the decisional Jaw in th e Ct. 447 (1991) ($224.920). sion, the plaintiff bears the bur den of Claims Court, with its appellate review proving them to be wrong.40 in the ~'ederal Circuit. Whatever the C. Tax claims A thir d type of tax case heard in the reasons,the number of refund claims in There are three Lypes of tax cases Claim s Court . is one for review of the Claims Court is much smaller than heard in U1e Claims Court In 1915. the adminis trative adjustment requests by the numb er of deficiency suits in the Supreme Court held that the Tuc ker partnerships.41 This j urisdic tion is '!'ax Court, although the average size of Act gives the Claims Court j urisdict ion shared with the Tax Court , and any the claim in the Claims Court is many over tax refund claims.35 A prerequisite appropriate district court. ti mes larger than in either of the other is a ti mely administrative refund claim, As to the strategy involved in practi two fora. I.RC. § 7422(a), and full payment of the tioners picking between the three fora disputed amount.36 By statute, district typically available in tax liti gation, I can D. Statu tory and reguJa tory clalms courts are given simi lar j ur isdiction.37 only pass along the factors I have heard As to clai ms based on a statute or Full payment in advance is what distin menti oned by atto rneys. One obvious executive regulation - the only limi t is guishes tax refund claims in either the consideration as between a deficie ncy a lawyer 's imagi nation. Some easy Claims Court or a district cour t from suit on the one hand (Tax Court) and a examples are the Pair Labor Standards NOTICE All Alabama Attorn eys Changes regarding Licensing/Speci al Membership Dues 1992-93 Act #92-600 was passed by the Alabama Legislatu re and amends Section 40·12·49 , Code of Alabama, 1975, effective October 1, 1992. This act involves important changes as follows: 1. License fees increase from $150 to $200. Special members!l ip dues increase from $75 to $100. 2. Attorneys no longer purchase, from a eounty probate Judge or license comm issioner , annual occupationa l licenses to practice but, instead , purchase these from the Alabama State Bar. All licenses to practice law, as well as payment of special membersn ip dues , will be sold through the Alabama State Bar Headquarters. Licenses must be purchased between October 1 and Octobe r 31 or be subject to an automatic 15 percent penalty. Second notices will not be sent! In mid-September, a dual invoice 10 be used by both annual license holders and special members will be mailed to every lawyer admitted to practice law in Alabama. Upon receipt of payment,those who purchase the license will be malled a license and wallet-sized license for identification purposes . Those electing spec ial membe rship will be sent a wallet -sized ID card for identification purposes and also to serve as a rece ipt. If you do not receive an Invoice, please notify Alice Jo Hend rix, membe rship serv ices director, at 1-800-354- 6154 (in-state WA TS) or (205) 269-1515 Immediately ! 338 / September 1992 THE ALABAMALAWYER Act. or olher mllitary-12or civilian pay consuming ones. Indian claims, for 1991), that a claim does not arise in the statutes. 43 The test that is always example,sometimes involvemillions of absence of a dispute. In other words. if applied is whether the statute or regula acres of land, tens of thousandsof docu the parties are still negotiating, the tion, fairly construed. mandates the ments. and accountings going back to plaintiff cannot simply break off. treat payment of money.44 The statute can the ni~teenth century. the last written response from the CO either affirmativelydirect the payment In 1987, Congress enacted the as a final decision, and go to court. of money,as in the caseof pay statutes. National Vaccine Injury Compensation Moreover. even if the CO has issued or it can do so by implication.as when Program48 to compensate persons what purports to be a final decision. if the government has allegedlyimproper, Injured by childhoo d vaccinations. in fact there Is a defect in the claim. the ly exacted the plalnlifl's money under Those claims are tried by Special Mas final decision is a nullity. W. M. color of a statute which the plaint iff ters and then appealed to the Claims Schloss.1rCo. u. U11it11dSto les, 705 l'.2d claims has been misapplied.45 The lat Court. There are other specialized jur is 1336. 1338 (l'ed. Cir. 1983). The court ter is th e rea l basis of the Claims dictional statutes, but Lhey are infre has also been stricl in enforcing the ele Court's laxrefund Jurisdiction.46 quently Invoked and not wort hy of ments of what constitutes an adminis space In a brief summary. trative claim. See Mingus Constructors, E. Congre ulo nal refennce cases Inc. u. /Jniled Stoles, 812 l'.2d 1387 Sometimes litigants have no legal (fed . Cir. 1987): Con/roe/ Cleaning right to relief. but they may have a IV. COMMON PITFALLS Maintenance,Inc. v. UnitedStales. 811 strong equitable claim. Por example. It i$ hard to know which peculiarities F.2d 586( Fed. Cir. 1987).In sum.make the statute of limillltionsmay have run of suing the federal g ---- Member Identification (Social Security) Number Chooseone: I.I Mr. Mrs. L Hon. U Miss D Ms. Ll Other ---- Full Name ------Business Phone Number ______Race______Sex______Birthdate.______YearofAdmission ______~rm ______Office Mailing Address ______City ______State __ ZIP Code______County ______OfficeStreet Address (if different from mailing address)______ City ______State __ ZIP Code______County ______L------~ 340 I September 1992 THE ALABAMALAWVER 16 United Slaros v reS1an,424 U s 392, empfOv.. would probably be ueare *Providedthrough the courtesyor the legislativeRel"e rence Service Act No. 92-63 , S. 73 , amends Section 17-20-1, Codeof Act No. 92-124 , S. 44 , continues the existence and func Alabama 1975, relating to the division of the state into con tioning of the AlabamaSecurities Commission.It also amends gressional districts, to redistrict the congressional districts Sections 8-6-53. 8-6-110,8-6 -JJ I, 8-6-U3, 8-6-115, 8-6-116, based on the 1990census. 8-6-JJS, and 8-6-119. Cocleof Alabama 1975,to providefur ther for the commission; and it repeals Section 8-6-114,Code Act No. 92-108, S. 80, amends Sections 2-3-24, 2-19-130, 2- of Alabama 1975, relating to the State Industrial Revenue 26-71, 2-27-6,2-27 -30, 9-SA-3, and 41-9-243,CocleA of labama BondAdvisory Council. 1975,re lating to the membership of certain committees, orga ni.7.ations, and commissions pertaining to farmersand agricul Act No. 92 -125 , S. 46, continues the existence and func ture. to reOectthe change in name of AlabamaFarm Bureau tioning of the Board of Examiners in Psychology. It also Federation to AlabamaFarmers Federation. It will also ratify amends Section 34-26-21,Code o f Alabama 1975. lo provide and confirm actions taken by AlabamaFarm ers Federation. further for the board. Act No. 92 -116, S. 36, continues the existence and func Act No. 92-126 , S. 49, continues the existence and func tioning of the State Pilotagc Commission. tioning of the Department of Insurance. Act No. 92-117, S. 37 , continues the existence and func tioning of the Board of Examiners of Mine Personnel. Act No. 92-127 , s. 50 , continues the existence and func tioning of the Alabama Real Estate AppraisersBoard. ll also amends Sections 34-27A-13,34-27A-15, a nd 34-27A-20,Code Act No. 92-118, S. 42 , continues the existence and func of Alabama 1975, to providefurther for the board. tioning of the Public ServiceCommission. Act No. 92-119, S. 47, continues the existence and func Act No. 92-128 , S, 51 , continues the existence and func tioning of the Board of Auctioneers. II also amends Sections tioning of the Alabama Boardo f Funeral Service. 34-4-21, 34-4-29,and 34-4-50,Code of Alabama 1975. to pro vide further for the board. Act No. 92-134 , S. 53 , continues the existence and func tioning of the Alabama Indian Affairs Commission. It also Act No. 92-120, S. 48, continues the existence and func amends Sections 41-9-708,4 1-9-712, 41-9-713, 41-9-715,and tioning of the AlcoholicB everage Control Board. 41-9-716. Codeof Alabama 1975, to provide further for the commission. Act No. 92-121 , S. 38 , continues the existence and func tioning of the AlabamaBoard of Social Work Examiners. It Act No. 92-152 , H. 253, amends Sections 17-10-12. 17-16- also amends Sections 34-30-4,34 -30-22. 34-30-50, and 34-30- 11, and 17 -7 -1, Codeof Alabama 1975, relating to primary 52, Codeo f Alabama 1975, to providefurt her for the board. elections and absentee balloting. to shorten the time period for deliveryof absentee ballots for the 1992 elections, for the Act No. 92-122, S, 39, terminates the existence and func filing of declarations of candidacy,and for certincation of can tioning of the Examining Board for ProfessionalE ntomolo didates for the J992 congressional election. gists. Plant Pathologists, Horticulturists, l'loriculturists. and Tree Surgeons.It transfers the duties of the board to the Com Act No. 92 -154 , S. 116 , makes supplemental appropria missioner of Agricultureand Industries and amends Sections tions from the Special Educational Trust Pund to the Butler 2-28-1 to 2-28-5, inclusive,and 2-28-8.Code of Alabama 1975. County Board of Education and the Dale County Board of to transfer the dutie.s. Education for the r.scal year ending September 30, I992, for repairs to any school damaged by windstorm or fire in the Act No. 92-123 , S. 40 , continues the existence and func counties. tioning of the Alabama Liquefied Petroleum Gas Board. It also amends Sections 9-17-101, 9-17-104, 9-17-105, and 9- Act No. 92-155 , H. 631 , proposes an amendment to the 17-107, Code of Alabama 1975, to provide further for the Constitution of Alabama of 1901 relating to volunteer fire board. departments, fire protection, and emergency services in Cal- 342 / September 1992 THEALABAMA LAWY ER houn County and the levyand collection of additional ad val also amends Sections 34·37·6, 34·37·8, 34.37.9, and 34-37· 15, orem taxes for the fire protection and emergency services. CedeA of labama 1975, to providefurther for the board. Act No. 92-169, S. 194, amends Section 41-14·30, Codeof Act No. 92·183, H. 224 , amends Sections 12·2·2, 12-2-7, and Alabama 1975, relating to the investment of state funds, to l 2-3-10, Codeof Alabama 1975, relating to decisions affecting provide further for the authority of the State Treasurer to the tenure of employeeso f public schools, to give the Alabama deposit funds in state depositories and when funds may be Court of Civil Appealsexcl usive and finalj urisdiction of appeals invested in obligations of the United States or its agencies. It of such decisions. This act would have become effective upon also makes appropriations from the General Fund to the State the ratification of the constitutional amendment proposed by Treasurer lo implement the act. House Bill252.of t he J992 Regular Session which failed to pass. Act No. 92-173 , H. 468, amends Section 25·4·72, Cedeof Act No. 92-184, H. 230 , repeals Section 40·1-32.1,Code o f Alabama 1975, relating to the unemployment compensation Alabama 1975, entitled the "Prorat ion Prevention Act of weeklybe nefit. to increasethe maximum benefit. 1988." It would have been implemented only if the constitu· tional amendment proposed by House Bill 252 of the 1992 Act No. 92-174, H, 287 , is the ·'Employment Security Regular Session had been ratified.House Bill 252 did not pass, Enhancement Act:· It amends Sections 25·4 Act No. 92-180 , S. 45 , continues the existence and func· Act No. 92-205 , H. 669 , amends Settion 40-17-2, Codeo f tioning of the Boardof Heating and Air Conditioning Contrac· Alabama 1975, relating to motor fuels, to levy an additional tors. It also amends Sections 34·31· 18. 34·31-21, 34-31-25. excise tax of rive cents per gallon on motor fuel used in the 34-31-26, 34-31·28, 34-31·29,and 34·31·32, Code of Alabama operation of any motor vehicle on the highways. 1975,t o provide further for the board. Act No. 92-206 , S. 107, amends Sections 37-6-3, 37-6·8, 37-6-9, 37·6-10, 37·6·12, 37-6·18, 37·6·22, and 37·6-30 and Act No. 92 -181, S. 52, continues the existence and func· repeals Section 37-6-17, Cede of Alabama 1975, relating to tioning of the Alabama Board of Cosmetology. It also amends cooperatives organiied for the purpose of supplying electric Sections 34·7-19 and 34·7-21. Codeof Alabama 1975, to pro service, water and sewer service,a nd television reception ser· vide further for the board. vice, to provide further for the organization, operation, and powers of the cooperatives and to the right of cooperativesa nd Act No. 92-182 , S. 100, continues the existencea nd rune· certain municipal gas districts to terminate or decli1\e service tioning of the Plumbers and Gas l'itters Examining Board. It to customers under certain conditions. THE ALABAMALAW Y~;R September 1992/ 343 Act No. 92 -207 , H. 555 , proposes an amendment lo the Act No. 92-259, H. 612 , proposes an amendment to the Constitutionof Alabamaor 1901lo providefor Lheelection or Constitution of Alabamaof 1901 lo authorize the Covington the Pell City Boardof Education. CountyCommission to establish fire protectiond istricts in the county and levy and collect additional property ta.(es for fire Ad No. 92-208 , ff. 359, pr0p0ses an amendment to the protection and rescuesquads in the county. Constitutionof Alabamaof 1901relating to the compensation of the Judge of Probateof PickensCounty. Act No. 92-274, S. 530 , proposes an amendment to the Conslilution oi Alabama of 1901 to establish an education Act No. 92-209, H. 164, amends Section 36-27-49.3. Code account.lbilityteam in Mobile County and lo provide for the of AlabamCI1975, relating lo the purchase of military service levy of additional ad valorem tax to finance schools in the in the EmJ)loyees' or Teachers' Retirement System, to add county. appellate ju dges of the Judicial Retirement System and lo allowcertain members of the retirement systems to purchase Act No. 92-276 , H. 565, proposes an amendment to the credit for acLive military duty. Constitution or Alabama or 1901 to levya sales and use tax in LimestoneCounty for the Athens City BO.lrdof Educationand Act No. 92-216, S. 274 , amends Section 36-1-4.3, Codeof the LimestoneCounty Boardof Education. Alabama l 975, relating lo deductionsfrom the salariesor slate employeeJ,lo require that a certain number of state emplO)'· Act No. 92-277 , ft. 799 , prop0ses an amendment to the ees request a specific salary deduction before the deduction Constitutionof Alabamaof 1901 to providefor the election of can be made by the St.Ile Comptroller. the TalladegaCity Boardor Education. Act No. 92-222 , H. 52, amends Sections40-1-33 , 40-12-190. Act No. 92 -278 , H. 841, proposes an amendment to the 40-12-192, 40-12-196, 40-12-198, and 40-12-200. Codeof Constitution of Alabama of 1901 10 authorize the Geneva Alabama 1975, relating lo the licensing or distributors or County Commissionto le\')/nnd collect additional ad valorem motor fuels, to providefurther for the licensing. lax for the maintenanceof the Jail and courthouse. Act No. 92·223, H. 154, amends Section 17-4-150. Codeof Act No. 92-303, S. 131, amends Section 36-29-14,Code of Alabama 1975, relating to boards of registrars, to providef or Alabama 1975.relating lo the procedure for omcers. employ· the appointment of additional members to the board of regis· ees, and retirees of certain municipallties. Oredistricts. water lrars in any county which has two courthouses. and Oreauthority districts, and the Leagueof Municipalitiesl o be coveredunder the Slate Employees'Health Insurance Plan. Act No. 92-227 , H. 605 , amends Sections 12-19-71, 12· to authorize certain additional state. county. and municipal 19-72. 12-19-171. 12-19-172, 12-19-17-1, 12-19-175. 12·19· agenciesand regionalplanning and de\-tlopmenlcommissions 176. 12-19-178,and 12-19· 179.Code of Alabama 1975, relal· to participatein the plan. inll to court costs, to temporarily increas.ethe fees and costs in circuit and district courts. ILalso makes supplemental appropriations for the foscalyear ending September 30. 1992, Act No. 92-342, H. 475, amends Section 36-25-9,Code of and appropriations for the fiscal year ending September 30, Alabama1975, r elating to the code of ethics for public omcers 1993. and emplo}'1!es,to allow real estate brokers.agen ts, developers, appraisers, and mortgage bankers to serve on state. county, or municipal regulatory boardso r commissions. Act No. 92-245 , H. lSl, requires a commercial party boat license issued by the Division of Marine Resources or the Department of Conservation and Natural Resourcesfor certain Act No. 92-343, 8. 508, amends Sections 40-23-1 and 40-23- boats. 4, Codeof Alabama1 975, relating to sales and use tax, to pro videfor certain tax exemptions retroactivelo January 1, 1984. Act No. 92-252, S. 464 , proposes an amendment to the Constitution of Alabama of 1901 consolidating under one Act No. 92-344 , H. 392, amends Section 9-53, Code al county public aulhor,ty or corporationany public authorities Alabama 1975. relating to a freshwater fishing license. to or corporations created by Lawrence County for economic inc~ase its cost and describe further where it is required. It de\-elopmtntin the county pursuant to ConslitutionalAmend alsorequires a saltwater fishing license for certain personsand ment No. 190. in certain areas. Act No. 92-253, S. 229, makes supplemental appropriations Act No. 92-418 , H. 614 , providesfor the fundingand opera· from the Special Educational Trust Fund and the General· tion of the Medicaid Program by requiring the transfer or Fund to the Department of Finance, Telephone Revolving moneys from publlcly-ownedhospita l~ lo the AlabamaM oth Fund for the fiscal year ending September 30, 1992. ers and Babies Indigent Care Trust Pund. The nclw ill remain 344 / September 1992 THE ALABAMALAWYER effectiveonly as long as adequate federal financial participa General Fund to the Lighthouse CounselingCenter for the lis· tion in the Medicaid Program is available and will expire cal year ending September 30. 1993. September30 ., 1995. Act No. 92-450, H. 215, makes an appropriation from the Act No. 92-435 , S. 526, amends Section 39-7-14. Codeof General F'und to the Council for Parenting and Protecting Alabama 1975, relating to boards or trustees of municipal Children for the fiscalyea r ending September30, 1993. improvement authorities, to provide that the boards shall con sist of five members that are qualified electors residing in the Act No. 92-451, H. 216 , makes an appropriation from the area serviced by the authority. General Pund to the RetiredSen ior VolunteerPr ogram for the F'oslerGrandparent and Senior Companions Programsfor the Act No. 92-438 , H. 79 , amends Section 36-21-70, Codeof fiscalyear ending September30. 1993. Alabama 1975. relating to the Peace Officers' Annuity and Benefit l'und, to increase the benefits payableto members or Act No. 92-452 , H. 220, makes an appropriation from the the fund, retroactivet o October 1. 1991. General Fund to the Shoals EntrepreneuralCente r for the fis cal year ending September 30, 1993. Act No. 92-439 , H. 454 , prohibits any college or universi ty from spending public funds or using public facilities to Act No. 92-453, H. 195, makes an appropriation from the sanction, recognize, or support any group that promotes a General l'und to the Commission on Agingfor the CareAssur lifestyleor actions prohibited by the sodomyand sexual mis ance System for the Aging and Homebound for the fiscalyear conduct Jaws. It also prohibits any group from permitting or ending September 30. 1993. encouraging its members or others to engage in or provide materials on how to engage in the lifestyleor actions. Act No. 92-467, S. 595, makes a supplemental appropria· tion from the Public Road and Bridge F'und to the Stale High Act No. 92-440 , ff, 615 , amends Sections 40-268-20, 40- way Department for the fiscal year 1991-92 for federal aid 268-21. 40-268-25. 40-268-40, 40-268-41, 40-268-43, and matching and state maintenance. 40-268-45, Codeof Alabama 1975, relating to the privilege tax on nursing facilities and hospitals, to provide further for Act No. 92-471 , S. 606 , provides for the authority of any the tax. Class2 municipality to prescribe standards for the continued use and occupancy or buildings. Act No. 92 -443, H. 438 , amends Sections 2, 3, and 5 of Act No. 91,667, S. 432, 1991 Regular Session (now appearing in Chapter 2A, Tille 4, Codeof Alabama 1975). relating to the Act No. 92-476, S. 110 , provides for the employment or additional legislative security personnel. Alabama International Airport Authority, to provide further for the incorporation and membersof the authority. Act No. 92-520, H. 179, makes an appropriation from the Act No. 92-444, H. 153, amends Section 36-27-50. Codeof Special Educational Trust Fund to the Department of Public Alabama 1975, relating to temporary legislative employees Health for the fiscal year ending September 30, 1993. being coveredb y the State Employees·R etirement System and State Employees' Health Insurance Plan, to make coverage Act No. 92-521, ff, 180, makes an appropriation from the optionalal the discretion of the employee. Special Educational Trust F'und to the Governor's Commis sion on PhysicalF'i tness for the fiscal year ending September Act No. 92-445 , H. 189, makes an appropriation from the 30, 1993. General l'und to the Alabama·sYoung Woman or the YearPro gram for the fiscal year ending September 30. 1993. Act No. 92-523 , H. 286 , makes an appropriation from the Special Educational Trust Fund to the AJDSTask F'orce of Act No. 92-446, H. 190 , makes an appropriation from the Alabama, Inc., for the fiscal year ending September 30, 1993. General l'und to the America's YoungWoman of the Year Pro gram for the fiscal year ending September 30. 1993. Act No. 92-524, ff, 594 , amends Sections 8-6-10 and 8-6- 16, Codeof Alabama1 975, relating to securities, to require fil. Act No. 92-447 , H. 192 , makes an appropriation from the ing of notice of issuance for certain securities exempt from General Fund to the Beacon House-Jasperfor the fiscal year registration; to provide further for exemptions of certain ending September 30, 1993. exchangelisted securities; to provide certain authority to U1e Securities Commission;and to provide remedies for violations Act No. 92-448 , H. 205 , makes an appropriation from the of the Alabama Securities Act. General Fund to the Elyton RecoveryCenter for the fiscal year ending September 30. 1993. Act No. 92-525 , H. 181, makes an appropriation from the Special Educational Trust Fund to the Space Science Exhibit Act No. 92 -449, H. 210 , make .s an appropriation from the Commission for the fiscal year ending September30. 1993. THE ALABAMALAWYER September 1992/ 345 Act No. 92 -526 , ff, 350 , proposes an amendment Lo the Act No. 92-54 7, H. 197, makes an appropriation from the Constitution of Alabamaof 1901 legalizing the operation of Special Educational Trust F'und lo the Children's Hospital bingo games for prizes or money by certain nonprofit orga in Birmingham for the fiscal year ending September 30, nizations for charitable, educational, or other lawful purpos 1993. es in WalkerCou nty outside the corporate limits of Jasper. Act No. 92-548 , ff. 198, makes an appropriationfrom the Act No. 92-527, ff, 35 1, proposes an amendment to the Special Educationa l Trust Pund to the Children's and Constitution of Alabama of 1901 legalizing the operation of Women's Hospitalin Mobilefo r the fiscal year ending Septem bingo games for prizes or money by certain nonprofitorgani ber 30. 1993. zations for charitable, educational, or other lawful purposes in the Cityof Jasper. Act No. 92-549 , ff. 202, makes an appropriation from lhe Special Educational Trust Fund to the E,ploreum Museum of Act No. 92-531 , ff. 340 , creates and establishes the Alaba Discoveryfor the riscalyea r ending September30 , 1993. ma School of Fine Arts to be governedby a board of trustees. Act No. 92-550 , ff, 203 , makes an appropriation from the Special Educational Trust F'und to the !\ate Duncan Smith Act No. 92-532 , H. 82 , defines and provides for lhe estab DARSchoo l for the fiscal year ending September 30. 1993. lishment of community developmentd istricts and prescribes the method by which alcoholic beveragesmay be sold within the districts. Act No. 92-551 , H, 208 , makes an appropriation from the Specia l Educat iona I Trust Fund lo Lhe Alabama Humanities Foundation for lhe fiscal year ending Septem Act No. 92-533 , ff, 115, makes an appropriation from the ber 30, 1993. Ceneral Pund to the LegislativeReference Service for the fis cal year ending September30, 1992. Act No. 92-552 , H. 209, makes an appropriation from Lhe Special Educational Trust Pund to the AlabamaLeague for the Act No. 92-535 , ff. 798, is the "Alabama BrewpubAct. " It Advancement of Educationfor the fiscal year ending Septem further regulates Lhe manufacture and sale of beer in wet ber 30, J 993. counties and wet municipalities by providing for the licensing of brewpubs to brew and selI beer on the same premises for Act No. 92-553 , ff. 211, makes an appropriation from the on-premisesco nsumption only. Special Educational Trust Pund to the Central Alabama Opportunities Industrialization Center for the fiscal year end Act No. 92-537 , S. 122, amends Articles I. 3, and 4 of Chap ing September30. 1993. ter 5 of Tille 25, Cede of Alabama 1975,to revise the Alabama Workmen'sCompensat ion Law. It also repeals Sections25-5-16, Act No. 92-554, H. 204, makes an appropriation from Lhe 25-5-70 to 25-5-75, inclusive,and Sections 25-5-140 to 25-5- Special Educalional Trust l'und to the East Alabama Child 180, inclusive, CodeA of labama 1975. It changes the name Development Center for the fiscal year ending September 30, Workmen's Compensation Lal\•to Workers·Compensation La1\/. 1993. Act No. 92-543, H. 588, amends Section 40-17-l l, Codeof Act No. 92-555 , H. 207, makes an appropriation from the Alabama 1975,relating lo tax liability for lhe sales and use of Special Educational Trust l'und to the l-lelen l\eller Eye motor fuels, to providefurther for the till(l iability. Researchl' oundation for the fiscal year ending September 30, 1993. Act No. 92-544 , H, 191, makes an appropriationfrom Lhe Special Educational Trusl Pund to Camp ASCCAin Jackson Act No. 92-556 , H. 292 , makes an appropriation from the Cap for the riscal year ending September 30, 1993. Special Educational Trust l'und to the Macon County Arts Manifesto for the fiscal year ending September 30, 1993. Act No. 92-545 , H. 193, makes an appropriation from the Special Educational Trust Fund to the Bevill Center for Act No. 92-557 , H. 218, makes an appropriation from the Advanced Manufacturing Techno logy and to the Bevill Special Educational Trust Pund to the Alabama YMCAY outh AdvancedE lectronics Center at Sparks Technical Collegefor and Covernmentfor the riscal year ending September 30. 1993. the fiscalyea r ending September 30, 1993. Act No. 92-558, H. 446, establishesstanda rds for membership Act No. 92-546 , H, 194, makes an appropriation from the in the AlabamaNetwo rk of Children's Ad\lOcacyCenters, Inc . Special Educational Trust Fund to Lhe Black Belt Human Resource Development Center for the fiscal year ending Act No. 92-559 , H. 511, makes an appropriation from the September 30. I 993. Special Educational Trust Fund to Educational Resources, 346 I September J 992 THE ALABAMALAWYER Incorporated (commonlyknown as the Freedom Forum), for Act No. 92-582, H. 217, makes an appropriation from the the fiscal year ending September 30. 1993. General Fund to the AlabamaTrave l Council for the fiscal year ending September30. 1993. Act No. 92-560 , H. 214, makes an appropriation from the Special Educational Trust Fund to the Cleveland Avenue Act No. 92-583 , H. 222 , makes an appropriation from the YMCAfor the fiscalyear ending September 30. 1993. General Fund to the Child AdvocacyCente r~ for the fiscalyear ending September30. 1993. Act No. 92-561 , S. 305 , makes an appropriation from the General Fund to the Department of Agriculture and Indus Act No. 92-584, H. 199, makes an appropriation from the tries, Agricultural DevelopmentServ ices Program to be allo General F'undto the Coalition Against Domestic Violencefor cated to the BollWeevil Era dication Foundation for boll wee the fiscalyear ending September 30, 1993. vil eradication for the fiscalyear ending September 30, 1992. Act No. 92-585, S. 308, amends Section 9-14-29. Codeof Act No. 92-562, S. 211, amends Sections 11-98-1.11 -98-2, Alabama 1975, relating to state parks, lo exempt from certain 11-98-4, 11-98-5,and 11-98-6.Code of Alabama 1975.re lating Jawsconcess ion operations at slate parks that receive annual to emergency telephone service and communication districts, gross receipts ofSl00,000 or Jess. to providefurlher for the serviceareas . the structure and pow ers of the board of commissioners of a district, and the type of emergencyservice. Act No. 92 -586, S. 23 , creates the Impaired DriversTrust F'undin the State Treasury to provide rehabilitative servicesto residentsof the state with certain typeso f injuries. Act No. 92-563 , $. 437 , authorizes the Supreme Court and the Courts of Appeal to employ certain personnel. It repeals Sections 12-2-150 to 12-2-156, inclusive, Section 12-2-158, Act No. 92-587 , S. 74, amends Sections 14-2-12a nd 14-2- and Sections 12-4-1 to 12-4-4. inclusive. Codeof Alabama 16, Codeof Alabama 1975, relating to the AlabamaCo rrec 1975, relating to the Marshal and Librarian of the Alabama tions Institution Finance Authority. to authorize the issuance Supreme Court and the Reporterof Decisionso f the Supreme of additional bonds and to allow the bonds to be sold at public Court and Courts of Appeals. or private sale. This act will become effective a~er the Easter ling Facility has been reopenedand all terminated employees Act No. 92-564, S. 375 , empowers the State Oil and Gas reemployed. Board to authorize and regulate the storage of gas in under ground reservoirs, strata, or formations in conjunction with Act No. 92-588, S. 246, amends Section 11-45-9.1,Code of condemnation rights and eminent domain procedures. Alabama 1975. relating to the issuance of a summons and complaint by municipalities for violations of certain ordi Act No. 92-572 , H. 575, allows any Class 5 municipality to nances, to providefurther for the violations. adopt an ordinance creating a housing code abatement board to removestructures that are unsafe to the extent of creating a Act No. 92-589, S. 525, permits certain governmental public nuisance. entities to hedge against interest rate, investment, pay ment, and similar risks in connection with their activities Act No. 92-577, H. 638, amends Section 1 of Act No. 80- by entering into "swap agreements." It also provides the 573. S. 513, 1980 Regular Session. relating to the compensa conditions, requirements, and definitions for "swap agree tion of the circuit judges in the 16th Judicial Circuit, to pro ments.~' hibit an increase in the compensation unless the increase is provided by local law. Act No. 92-590, S. 72 , requires public schools to emphasize resµonsible sexual behaviorand preventiono f illegal drug use Act No. 92-578 , H. 201, makes an appropriationfrom the in those programs and curriculums that include instruction Special Educational Trust Fund to the Project DAREand on the subjects. DON'TDrug Education Programs for the fiscal year ending September 30, 1993. Act No. 92-591, S. 195, makes a conditional appropriation to the Department of Agriculture and Industries for the fiscal Act No. 92-580 , H. 200, makes an appropriationfrom the year ending September 30, 1993 to indemnify owners of swine Special Educational'!'rust F'und to ConstitutionHall Villagea l ordered condemned and destroyed for the prevention and Huntsvillefor the fiscal year ending September30, 1993. eradication of the diseasesof hog cholera. Africanswine fever, and other swine diseases. Act No. 92-581 , H. 213, makes an appropriation from the SpecialEducational '!' rust Fund to the Special Schoolsfor Spe Act No. 92-592, H. 584, placesa moratorium until January cial Educationfor the fiscal year ending September 30, 1993. I, 1995 on the permitting. construction, or expansion of cer- THE ALABAMALAWYER September 1992/ 347 ta in new ·or existing sanitary landfills in any county which Act No. 92-600, S. 324, amends Section 40-12-49, Codeof contains coastal areas. Ala/Jama1975 , relating to attorney business license taxes, to increase the laxes and to providefurther for the collection of Act No. 92-593 , H. 449, makes an appropriationfrom the the taxes. Agricultural Pund for the use of the Department or Agricul ture and Industries for the fiscal year ending September 30, Act No. 92-601 , S. 365, amends Section 13A-5-40,Cede of 1992. Alabama 1975, relating to capital offenses, to include within the list of crimes punishableas capital offenses: murder when Act No. 92-594, H. 318 , makes supplemental appropria the viclim is under 14; murder in which lhe victim is killed tions to the Alabama Departmentof Economicand Communi while in a dwelling from a deadly weapon fired outside the ty Affairs for the fiscalyear ending September30. 1992. dwelling;murder in which the victim is killed in a motor vehi cle by a deadly weapon fired from outside thal motor vehicle; and murder in which lhe victim is killed by a deadlyweapon Act No. 92-595, H. 69, makes a supplementalappropr iation fired from a motor vehicle. rrom the Alcoholic BeverageControl l'und to the Alcoholic BeverageContro l Board for the fiscal year ending September 30, 1993. Act No. 92-602, S. J 9, provides for mandatory errors and omissions insurance coverage for all active real estate licensees. Act No. 92-596, H. 71, makes a supplemental appropriation from the Alcoholic BeverageControl Fund to the Alcoholic BeverageContro l Board for the fiscal year ending September Act No. 92-603 , S. 248, exempts all property owned by 30. 1992. Community Health Systems, Inc., and the Walker Regional MedicalCenter from any state, county, and local ad valorem taxes. Act No. 92-597 , H. 34, is the "Alabama PawnshopAcL " ll providesfor the regulation and licensing of pawnbrokersand repeals Sections 8-1-80 to 8-1-84, inclusive,Code of Alobama Act No. 92-604, S. 452, aulhorizes and providesr or the pay 1975. It also makes an appropriation to the State Banking roll deductions for state employeesfor the Poster Care Trust Departmentfrom the BankingAssessments Pees Fund for the Fund. 1992 fiscalyear for the implementation and administration of this act. Act No. 92-605, S. 457 , provides for a voluntary checkoff designation on state income tax returns for contributions to Act No. 92-598 , H. 247, requires the lessee of tax exempt the Poster Care Trust Fund. property to report certain information relativeto the property lo the tax assessor who is required to report to the Depart Act No. 92-606 , S. 260, amends Section 26-16-30.Code of ment of Revenuewhich then reports to the Legislature. Alabama 1975,re lating to the Children's Trust Fund, to pro vide for the investmentof trust fund money. Act No. 92-599 , H. 246, is the "TaxIncent ive ReformAct of 1992." It authorizes lhe abatement of ad valorem laxes other Act No. 92-607 , S. 321, revises and sup1>lementsthe lhan lhose imposedfor public school purposes and ror public existing system for registering certain vital records and sta education and mortgage and recording taxes incurred in tistical data. ll also specifically repe.als Sections 22-9-1 to establishing or expanding industr ies in the state. ll also 22-9-79, inclusive, Codeof Alal>ama 1975, relating to vital amends Section 40-7-35, Codeof Alabama 1975, and repeals statistics. Sections40-9-40 to 40-9-49, inclusive, Codeof Alabama1975. Act No. 92-608 , S. 109, provides for examinationsand the issuance of licenses to persons in the home building industry; provides for the adoption by counties of residential housing Traffic Accident Reconstruction building codes; and creates the Home Builders Licensure Board.This act is required to be advertisedin each county in a newspaperof general circulation once a weekfor three consec- ALBERT MEDINA 1.Jtive weeksprior to implementation. Act No. 92-609, S. 59, amends Sections 16-13-52 and 16- P.O. BOX 240934 MONTGOMERY,Al.ASAMA 3612• (205) 2n.7929 13-52.l, Code of Alabama 1975, relating to the number of teacher units allowed, to provide an alternative method for determining the number of current teacher units earned by a particularschool system. 348 / September 1992 THEALABAMA I..AWYER Act No. 92 -610 , B, 186, makes an appropriation from the tive Tag Program, and the Environmental Commemorative Special Educational Trust Fund to Talladega College for the Tag Program. fiscal year ending September 30, 1993. Act No. 92-62 3, H. 616, amends Sections 40-1-31, 40-21- Act No. 92-611 , e. 185, makes an appropriation from the 64, 40 -2)-80 to 40-21-84 , inclusive, 40-21-86,40-21-87, 40-21- Special Educational Trust Fund to the Coosa Valley Medical 100 to 40-21-104,incl usive, and 40-21-121,Code of Alabama Center School of Nursing for the fiscal year ending September l975, relating to the utility gross receipts tax, to increase the 30. 1993. tax and the utility service use tax on intrastate telegraph and telephone servicesand provide further for distribution of utili Act No. 92-612 , H. 184 , makes an appropriation from the ty gross receipts tax receipts. It also repeals Sections 40-21-58 Special Educational Trust F'und to Marion Military Institute and 40-21-59, Code of Alabama 1975, to repeal certain tele for the fiscal year ending September 30, 1993. phone and telegraph license taxes. Act No. 92 -624 , H. 445, makes an appropriation from the Act No. 92-613 , H. 182, makes an appropriation from the Shipping Point InspectionP und to the Department of Agdcul Special EducationalTrust F'und to the Department of Youth ture and Industries for the fiscal year ending September 30, Servicesfor the fiscal year ending September30, 1993. 1992. Act No. 92 -614 , H. 183 , makes an appropriation from the Act No. 92 -625, S. 214, amends Section 41-5-21, Code of Special Educational Trust Fund to the Lyman Ward Military Alabama 1975, relating to audit reports by the Office of Academyfor the fiscal year ending September30 , 1993. Examiners of Public Accounts, to provide for confidentiality of the working papers used in the preparat ion of audit Act No. 92-615 , H. 187, makes an appropriation from the reports. Special Educational Trust Fund to TuskegeeUn iversity for the fiscal year ending September 30, 1993. Act No. 92-626 , S. 93 , includes in the definition of "minori ty" for purposes of affirmative action programs, American Indians or Alaskan Nativesor persons having origins in any of Act No. 92-616 , B. 196 , makes an appropriationfrom the the original peoplesof North America. • Special Educational Trust Fund to United Cerebral Palsy of Alabama, Inc., United Cerebral Palsy DevelopmentCenter for East Central Alabama,Simpso n-May Cerebral Palsy Center, Cerebral Palsy Housing Foundation, United Cerebral Palsy of Mobile, and United Cerebral Palsy of Huntsville for the fiscal PROBATEBONDS year ending September 30, 1993. COURTBONDS 0 Administrator 's /Executor' s/Personal Act No. 92-617, H. 178 , makes an appropriationfrom the Repr es enta t ive's Bonds Special Educational Trust Fund to the Department of Educa ,Guar di an/Conser vators/Committee Bonds ,Testamentar y '.i'rust ees Bonds tion for the fiscalyear ending September30, 1993. . Receiv ers Bonds ,Tr ustee i n Li quid at i on Bonds .Tr ust ee i n Reor gani zation Bonds Act No. 92-618 , H. 188, makes an appropriation from the , Attachment/Ga r nishme nt Bonds Special Educational Trust l'und to Walker County Junior Col , Replev i n Bonds , Injunction Bonds lege for the fiscal year ending September30, 1993. •Indemnit y to Sheri ff ,Appeal, Super se deas , St ay of Execution Bonds Act No. 92-620 , B. 176, is the education budget. It makes When you need o bond Jusl Coll appropriations for the support, maintenance, and development of public education and for debt service and capital improve JackMc Carn ments for the fiscal year ending September30 , 1993. Act No. 92-621, H. 177 , is the general fund budget. It MickieMc Carn Edwards makes appropriations for the ordinary expenses of the execu ForProfess ionalService tjve, legislative,and judicial agenciesof the state. 251-4062 FAX:328-0247 Realty Insurance Agency. Inc. Act No. 92-622, ff, 470 , amends Section 32-6-150,Code of P.O. BOX 55 175 Alabama 1975, relating to personalized and distinctive com B~minghcun. Ak:lboma 35255 Phone (205) 251-4062 FAX; 328-0247 memorativelicense plates, to providefor the AtomicVeterans NUKEDCommemorative Tag Program, VeteranCommemora - THE ALABAMALAWYER September 1992/ 349 DISCIPLINARYREPORT Reinstatem e nt count. to run concurrently. (Rule then filed a complaint against Estep • Mlchael Lee Aluup was reinstated 22(al(2J(Pet. #92-0I I). with the bar. The Office of General to the practice by order of the Supreme Counsel forwarded the complaint to Court of Alabama, effective June 23, Public Reprimand s Estep requesting a written response 1992. (Pet. No. 91·09) • Huntsville attorney HIiary Cole· thereto. Having received no suc h • Jack son William Stokes , an man Burton was publiclyrep rimanded response, the Officeof General Counsel Elba. Alabamaattorney, was reinstated in two separatecases. had the sheriff personallyserve a written to the practice of law by order or the ASB No. 90-735 - Burton was request for a ruponse to the complaint Supreme Court of Alabama. effective retained to file a civil action for a client on Estep. Estep has never replied to the July 21. 1992.(Pet. No.92-05) arising out of the purchase of a com complaint. A reviewof the court records mercial business by the client. Burton failed to disclose any pleadings liled by Disbarment stated he wou Id have the case filed by Estep on behalr of his client. The Disci • On April 28. 1992 Eufaula lawyer lhe end of December 1989, but did not plinary Commissionordered that Estep Samuel Angus LeMaistre , Jr . was do so until March 1990. By April 1990, be publicly reprimanded for willfully disbarred from the practice of law by the client approached Burton about fil. neglecting a legal matter entrusted to lhe Supreme Court or Alabama. said ing a Chapter 13 Bankruptcy and to him, for failing to keep a client reason disbarment to become effective as or defend a collection action brought by ably informed about the status or a mat February 21, 1991. LeMaistre had been AmSouth Bank. Within the next three ter, for engaging In conduct involving found guilty of mail fraud which is a months, Burton continued to represent dishonesty,fraud, deceit, misreprestnta violation or Rule 22(a)(2), Alabama that he was protecting the client's lion or willful misconduct, and for Rules of DisciplinaryProcedure (Inter interests in all these matters. In fact, he engaging in conduct prejudicial to the im). (Rule 22(a)(2)Pet. No. 91-07) d rd absolutely noth Ing on them. The administration of justice and conduct client had a default Judgment taken which adverselyreflects on his fitness to Suspensions against him by AmSouth. His original practicelaw. (i\SB No. 91-708) • On June I J, 1992 Jim Clay Flnch lawsuit was dismissed,and the seller or • Talmadge H. Fambrough of Pell e.r was suspended from the practice of the business sued him for non-pay City was hired by an individual con law for three years to become effective ment. Burton n-r filed the bankrupt cerning that individual's attempts to February28, 1992.In November1991. a cy, but the client only learned this by reco,•er certain antique automobiles notice was placed in The Alabama contacting the bankruptcy court him which had been wrongfully converted f,awyer, advising Fincher that he had self. Throughout the client's relation by others. The client provided F'am 28 days from November15, 1991 to file ship with Burton, he had to endure brough with the needed documentation an answer to disciplinarycharges; oth· continual avoidance and intentional to proceed on the client's behalf, and erwise the charges would be deemed misrepresentations about the status of also paid to Fambrough a ,~ of S7S0, admit ted and appropriate discipline his cases. Burton repeatedly failed to Inclusive or the filing fee. The client's would be impased against him. A hear respond to any of the client's allega case was scheduled for two separate ing on the appliClltion for default judg tions when asked to do so by the Madi hearings. One hearing was continued, ment and to determine discipline was son County Bar Association. and Fambrough failed to appear at the held February 18. 1992.The application ASS No. 91-46(A)- Burton was pub second hearing. Having been unable to for default judgment wu granted licly reprimanded for engaging in con contact Fambrough to di$cuss the mat February 28. 1992 and the Disciplinary duct whkh renectedadversely on his fit ter, the client checked with the clerk's Boardchair signed an order suspending ness to practice. On September 5, 1991 office and discoveredthat his case had l'lncher for a period of three years. Burton was duly noticed lo appear before been dismissed by the tri al court's (ASB Nos.89- 166, 89-J 77 and 89-235) the board or bar commissionersfo r the grant ing of a sum mary Judgment in • Montgomery lawyer Rich a rd J . administration of a public reprimand favorof the defendants. Craugreen was suspended from the (unrelatedt o ASB#90-735). Burton v.ill Fambrough took no further action on practice of law by order of LheSupreme full>•failed to appear at the designated behalf of the client, and provided no Court of Alabama for a period of four time without having been personally explanation to Lheclitmt for his malfea years,effective July 22, 1992. e.~cused by the presidento f the state bar. sance. The Disciplinary Commission Crassgreen was convicted of two • J oe James Estep of Anniston was ordered that Pambrough be publicly counts or securities fraud, involving retained by a client to pursue a divorce reprimanded for willfully neglecting a misappropriation of commitment fees, modification. The client advanced to legal matter entrusted lo him, for fail in violation of 15 U.S.C. 78j(b) and Estep his attorney's fee. However, the ing to keep his client reasonably 78ff(a).Crassgreen was sentenced lo be client was unable to communicate with informed about the status of his case. imprisoned for three months on each Estep about the status or her case. She and for failing to explain a matter to the 350 I September 1992 THE ALABAMALAWYER extent reasonably necessary to permit manded for willfullyneglecting a legal thereafter. On at least two occasions,he the client to make informed decisions matter entrusted to him. for failing to misrepresentedthe status of the case to regarding the representation. (ASB No. seek the lawful objectivesof his client, the client. 91-670) for prejudicing or damaging his client After the grievance was filed, Givens • In ASS No. 91-690,Ca ry E. Davi.a during the course of the professional failed to cooperate with either the Tal of Centre was retained by an individual re lationship , for failing to keep his ladegaCounty Bar or the Officeof Gen to file a lawsuit After not hearing from client reasonably informed about the eral Counsel in their investigationand Davis for quite some time, the client status of his case. and for engaging in processing of the complaint. (ASBNo . called Davis. Davis told the client that conduct prejudicial to the administra 89-283) he had filed a $125,000 lawsuit on the tion of justice. (ASBNo. 91-690) • Birmingham attorney Willi e L. client's behalf. After experiencing fur • Sylacauga attorney Michael Williams was publicly reprimandedon ther difficulty in communicating with Anthony Civens was publicly repri May 22, 1992 for violating Rule Davis about this matte r, the client manded on May22, 1992 for failure to 3.3(a)(3) of the Rules of Professional checked with the circuit clerk's office seek the lawful objectivesof his client, Conduct which provides that a lawyer and was informed that no such lawsuit for failure to carry out a contract of shall not offer evidence known to be had ever been filed. The client filed a employment, and for engaging in con false, and Rule 4.l(a) which provides complaint against Davis.Davis was less duct which renects adversely on his fit that a lawyershall not knowingly make than diligent in respondingto the com ness to practice law. a false statement of a material fact to a plaint. The Disciplinary Commission In April 1988, Givens filed suit for a third person. ordered that Davis be publicly repri- client, but took no action whatsoever Williams represented his client in a NOTICE All Alabama Attorneys tice law in Alabama. Upon receiptof paymen1,thosewho pur chase the licensewill be maileda license and wallet-sized Changes regardingLi censing/Special Membership Dues licenselor identification purposes. 1992·93 Those electing special membershipwill be sem a wallet Act #92-600 was passed by the Alabama Legislature and sized ID card for identification purposes and also to serve as amends Section 40-12·49, Code of Alabama. 1975, effec• a receipt. live October 1, 1992. If you do nol receive an invoice, please notify Alice Jo This act Involves importantchanges as follows: Hendrix, membershipservices director. at 1-800-354-6154 1. license fees increasefrom $150 lo $200. Special mem· (in-slate WATS) or (205) 269-1515 lmmediatelyl bership dues increase lrom $75 to $100. 2. Attorneys no longer purchase.from a county probate judge or license commissioner.annual occupational licenses 10prac1ice bul, instead, purchase these from the Alabama State Bar. All licenses lo practice law, as well as pay· ment ol special mem bership dues, will be sold through the Alaba- ma State Bar Headquar· ters. Licensesmust be purchasedbetween Octo· ber 1 and October 31 or be subject 10an automatic 15 percent penalty. Second notices will not be sent! In mid-September,a dual invoiceto be used by both annuall icenseho lders and specialmembers will be mailed to every lawyeradm itted to prac- THEALt\BAMA LAWYER September 1992/ 351 domesticdispute in which child custody dollars. plus the nling fre of $97 dollars. purpose or recoveringsome S27.000 in was a,vardedto his client's ex-husband. When the client went to Green's office retainage and other monies the presi Thereafter, the client notified Williams to pick up the divorce papers. he dent relt were owedto his companyby a that she did not want to appeal the charged her an additional S500dollars construction company. Another paint award or custody or to pursue the mat based on lhe result obtained at trial contractor brought an action againsl ter forther. However. the client's pre Green tried to justify the additional the bonding company or Trawick's sent husband folt that his wire should charge by stating il only amounted to 3 client"scompany. In 1um, the bonding pursue an attempt to ha,•e the decision percrnt of the value of real property company sued Trawick's client and the reversed.The client's husband was also a awardedher al trial. (ASBNo. 91-865) officersof his company.Trawick"s client client of Williams,as well as a personal • Gadsden auorne)•John Cunning delivered to Trawick all pleadings and friend. The client's husband authorized ham was publiclyreprimanded July 15. documents and engaged Trawick·s ser Williams lo proceed with the case. On 1992 in connection wilh his handling of vices for defense of all litigation involv· the basis of his conversation with the a personal injury matter. He foiled to Ing the client and his company. client's husbnnd, Williams forged the cooperate In the bar's investigation of The investigationinto the facts of the client's name to an affidavitin support the grievance that ensued from the formal grievance against Trawick or a Mollon to Alter. Amend or Vacate case. On May 30, 1990, Cunningham revealedthat Trawicknever filed suit on Judgment and notarized the forged sig was retained to represent a minor who behalr of the client or his company naturein his capacityas a Notary Pub wasinjurtd in an accident. The case was against the construction companywhich lic. When th~ client disc:0\-eredthat the ultimately settled in October 1991.The allegedly 01oed retainage and other Motionhad been filed,she contacted the minor·s mother filed a grievance moniesto the client and/or his company. court and had the Motion dismissed. against Cunningham after the settle The client's home was subsequently The Disciplinary Commission deter ment or the case. She alleged that he levied upon by the bonding company mined thal. as discipline ror the above convinced them to accept the settle based on the fact that the casehad pro described conduct, Williams should ment on Incomplete information, failed ceeded to a final Judgment against the receivea public reprimandwithout gen lo communicateand keep her informed. client and his company. without the eral publication.(ASB No. 91-645) and was not truthful about certain mat client ever having been advisedby Traw • Boaz attorney Phillip Loui s ters associatedwith the case. ick o( any such judgment. Green was publicly reprimanded for Cunningham never responded lo lhe Trawick's client flied a grievance violating Rule 1.5(n)(l ) 1vhich prohibits allegations or the complaint. in spite of which wasinvest igated by the Birming an attorney from charging or collecting several written requests that he do so. ham Bar Association Grievance Com a fee In a domestic relations matter Rule 8. l(b) of the Rules or Proressional mittee. The Investigator for that body which is contingent upon the amount Conduct providesthat a lawyershall not wrote Trawick requesting a written or alimony. support or property settle fail to respond to a lawrul demand for response to the grievance. Having ment. Green charged a divorce client informationfrom a disciplinaryauthori received no response. the investigator S250 dollars for a divorce with the pro· ty. IASBNo . 91-727) again wrote to Trawickand placedse\'er vision that the (ee would be higher if a • Donald T. Tr.lwlck undertook to al telephone calls to him concerning trial was nec:essary.There was a trial represent the interests or the president same. In a telephone conversationwith and by then the c!,eni had paid S400 or a paint contracting company for the the investigator, Trawick advised the in\'estigator thal his response was "in the mall." llowever, the investigator AGGRESSIVE NEW ATTORNEY never receivedany such response.F'inal ly. after numerous telephone calls lo SEEKS POSITIONWITH FIRM Trawick by the investigator,the investi gator received a response from Trawick. +10 YEARS ENGINEEIUNG EXPEIUENCE However. Trawick had disclosed in a telephoneconversation with the in1oesti galor that he could neither admit nor REGISTERED PROFESSIONAL ENGINEER deny the allegations of the complaint and thal he had no means of providing any documentation which would chal MASTERS - BUSINESS ADMIN . (MBA) lenge the allegationsof the complaint The investigation disclosed that Trawick failed to file any action on EXTENSIVE PUBUC SPEAKING EXPERIENCE behalf of his client. F'urther. it appears that consent judgment.s were entered FOR MORE INFORMATION CALL: against Trawick's client without the client's consent. 1-800-999-5504 The l)iscipli n ary Commission of the AlabamaState Bar ordered, pursuant to 352 / September 1992 Tl-IEALABAMA LAWYER Rule 8(el(2). Alabama Rules of Disci fitness to practicelaw. The Disciplinary Tabor was publicly reprimanded by plinaryProcedure ( Interim), that Traw Board foundthat Taborwas retainedby the Alabama State Bar on July 15. ick be publiclyreprimanded for violating parentsof a deceasedchild to represent 1992 for failure to comply with an Rult 1.3 (laW)~r·swillfully neglecting a them in a medical malpractice claim. order of the DisciplinaryCommission legal malttr entrusted to him). Rule Approximately one year after being in v1olalionof Rule 2!d) of the Rules l.4(a)(requiring a la\,')~ to ktep a client retained.Tabor moved his practicefrom of Oisciplinal')'Procedure (Interim). reasonablyinformed about the status of Greenville. Alabama to Birmingham The Disciplinary Board found that a matter and promptlycomplying with without notifying his clients. In 1990, Tabor was given a public reprimand reasonable requests for information), Tabor moved his practice from Birm without general publication in ASB and Rule 1.4(b) (requiring a lawyerto ingham to Montgomery, but again No. 90-403(Albul foiled to appear for explain a matter to the extent reasonably failed to notify his clients. Whensum · adrninistrntlon o( the public repr i necess.iryt o permit the clienl to make maryJudgment was granted in the case. mand as scheduled. informedd ecisionsr egarding the repre Tabor neglected Lo notify his clients or Administration of the public repri sentation). AlabamaRules of Profession this fact.T he Disciplinary Boardfurt her mand was rescheduled a second time. al Conduct.(ASB N o. 91-301) found that throughout his representa but again Tabor failed or refused to • Montgomery 3ltorney J ohn A. tion Tabor consisten tly failed to appear.Tabor "'as givena public repri Ta.bor W(IS publiclyreprimanded b)• the respond to telephone calls and lelters mandfor his failureor refusalto appear AlabamaStale Bar on July 15, 1992for from his clients or lo otherwise com· in compliancewith the Commission's violatingDR t-l02(A)(6)of the Codeof municale with them concerning their order in add1hon to the public repri Prolmional Rl!SpOnsibililgby engaging case. (ASBNo. 90-8311 mand imposedon him in ASBNo. 90- In conduct that reRectsadversely on his • Montgomery attorney J ohn A. 403(/\).!ASB No. 91-433) • Cumberland School of Law Presents McElhaney 's Master Advocate Series NOTICE Shaping Your Case to Win am:!. The Art of Cross-Examination Disciplinary Featuring James W. McElhaney Proc ee dings You will learn to: Sa lli e M . Mc Connell , • Mesh facts, law, and persuasion into anorney at law. whose a compelling story. whereabouts are unknown. • Use words that evoke a sense of must answer the Alabama injustice. • Zero-in on the personal and State Bar's formal disci professio nal qualities that set winner s plinary charges within 28 apart from the rest of the profession. days of Sept. 1, 1992 or, • Use the seven simple rules that are the secre t to powerful ques tions. thereafter, the charges con • Organize your cross-examination so tained therein shall be that it argues your case for you. Featuring imposed against her in • Spring the cross-examination traps James W. McElhaney ASB No. 91·330 before the your opponen t has set for you. Disciplinary Board of the Alabama State Ba1 Friday, December 4, 1992 Sheraton Civic Center Cumberland ~I of Uw, eo, 111111111-., Ltpl (d1JUtioe Disciplinary Board Hotel-Birmingham To regis ter call: (205)870-2865 Alabama State Bar or (800)888-7454statew ide ~ ·-S. = 6 MCLE Hou.rs Presents THE ALABAMALAWVER September 1992 / 353 ABOUTMEMBERS, AMONG FIRMS ABOUT MEMBERS Arlington Avenue, Birmingham, Alaba· Luca,, Alvia & Kirby announces ma 35205. Phone (205)933-2900. that J. Steven Clem and Leigh Ann KJng have Joined the firm as associates. Craig R. Izard announces the relo· W.1. Mathewa announces the open Offices nre localed al 250 Park Place cation of his office to 308 l'rank Nelson ing of his offices al 118 East Moulton Tower. 200 I Park Place, North, Birin Building. The mailing address is P.O. Street, Suit e I. Decatur. Alabama ingham, Alabama 35203. Phone (205) Box 130277, Birmingham, Alabama 3560I. Phone (205}355-6070. 251-8448. 35213. Phone(205)323-3241. M. Clll.)IRagsdale , formerly a part· Cabanlu , Johnston , Gardner, Dr. Jim Vickrey , formerly with ner with Starnes & Atchison,announces Dumas & O' Neal announces that Copeland. Franco. Screws & Gill. is the opening of his officeat Farley Build Rlchard Eldon Davis and Catluyn A. now professor or speech communica ing, 19293rd Avenue.North. Suite 550. Berryman ha\'t become associates of tion at Troy Sta te Unhienity , where Birmingham, Alabama 35203. Phone the firm. Officesare located in Birming he teaches courses in oral communica (205)251-4 775. ham and Mobile.Alabama. tion and in the criminal justice pro· Tboma1 T. Reynold s announces gram. Gardberg & Knopf announces the that he has accepteda position as gener relocation of its Mobile office to 1015 Sarah Ja .ne Lindsay , former judl· al counsel of Auoclatlon Risk Man Monllimnr Drive. Suile B-4. Mobile. cial cle rk for United States District agement Service Company . Offices Alabama36609. Phone 1205)343- 11I I. Court Chief Judge Alex T. Howard, Jr. are located al 244 f.a~t Park Avenue, and Judge Chnrles R Butler, Jr., South· LakeWa les. Florida 33853. Phone (813) Beasley, Wlla11n, Allen, Main & ern District of Alabama, announces that 676-1681. Crow annou nces that Julia Anne she h3.'IJoine d the Tennessee Valley Beasley has become an associate of the Authority' • Ofnce of the General (irm. Offices a re located al 207 Mont Cou.nael. Her new mailing address is gomery Street. 10th ~·1oor.Bell Build TVNOCC.400 \VestSummit Hill Drive. ing, Montgomery.Alabama. The mailing Knox,•ille, Tennessee 37902. Phone AMONG FIRMS address is P.O. Box4160 , 36103-4160. (615) 632-4109. Phone 1205)269·2343. J ohn Maddox announces the open Paraon .1 & Eberhardt announces Hubbard , Reynalda , Mcllwain & ing of his office in the law offices of that Clyde Alan Blankenship , for Brakefield announces that Michael Johnson , Etheredge & Dowling al merly city attorney for Lhe City of D. Smith has joined the firm. and the 131 North Oates Street, Dothan, Alaba, Huntsville,has becomea member of the firm name will be Hubbard, Rey. ma 36303. The malling address is P.O. nrm. which will be known as Parsons, nolda , Smit h, Mcllwaln & Bralce· Box JJ93, Dothan 36302. Phone (205} Eberhardt & Blankenship. Offices field. Offices are located al 808 793-2155. are localed at A111S0ulh Center, 200 W. Lurleen Wallace 13oulevard, North, Clinton Avenue, Suite 703. Huntsville. Tuscaloosa, Alabama 35403. Phone Dwight M. Jettf , Jr .. ormerly asso Alabama 3580I . Phone (205) 533-2172. (205)345-6789. ciated with the firm of Baker & Jett. announces lhal he has located his office Haygood, Cleveland & Pier ce Barry C. Leavell announces lhal at 402 Cordon Drive, SW, Decatur. announces that Michael Sharp Robert E, Lee has become associated Alabama35601. Phone (205)35 1-1303. Spealanan has become an associate. with the firm and that the firm has relo, Officesare locattd at 120 S. Ross Street, cated to 205 MadisonAvenue. Suite A. Don O. White announces the reloca and the mailing address is P.O. Box Montgomery, Alabama 36104. Phone tion of his office to 4325-A Midmost 3310. Auburn. Alabama 36831. Phone (205)834-8663. Drive,M obile. Alabama36609. The new (205)821-3892. mailing address is P.O. Box 91185, Phelps , Owens, J enkins , C.ibson Mobile 36691-1185. Phone (205) J.14- Porterfield, Harper & MiUs & Fowler announces that Susie T. 751). announces the relocation of its offices Carver has become a partn er in the lo 22 Inverness Center Parkway. Suite firm. C. Barton Adcox has joined U1e Frederick M. Garfield announces 600, Birmi11ghnm.A labama 35242-4821. firm as a partner, and Karen C. Wel the re location of his office to 2420 Phone (205) 980-5000. born has become associated with the 354 / September 1992 THEALABAMA LAWYER firm. Officesare located at 1201 Greens Penick & Brooks announces the Theiler announces that Si l ver B. boro Avenue. Tusca loosa , Alabama firm·s relocation to 319 17th Street , Eberly has become associated with the 35401. Phone (205) 345-5100. North. Suite 200, Birmingham, Alaba firm, with offices located al 3450 Pirst ma 35203, and that Danita Haski ns, National Tower, Louisville, Kentucky Harri s & Harri s announces that James Love, Debra Bennett Parker 40202. Phone (502) 589-2627. Alice H. Martin , formerly of Almon, and Malera Traylor-Wright have McAlister, Ashe, Baccus & Tanner and become members of the firm. Edgar C. Gentle , III announces forme rly an assistant U.S. attorney, that Lisa F. Crumbles, former ly an Western District of Tennessee, Depart Trimmier, Atc hi son & Hayley associate with Coggin & Duke , has ment of Justice, has joined the firm as a announces that Winston R. Crow has joined him as a partner, under the partner. The firm name has been joined the firm. Offices are located at name of Gentle & Crumble s. Offices changed to Harris, Harris & Martin . 2737 Highland Avenue. Birmingham. are located at 1928 Pirst Avenue, North, Offices are located at 407 South Court Alabama 35205. The mailing address is Suite 1501. Colonial Bank Building, Street. Florence, Alabama 35630. Phone P.O. Box 1885, Birm ingham 35201 - Birmingham, Alabama 35203. Phone (205) 764-1358. 1885. Phone (205) 251-3151. (205) 325-1530. Byrd & S pencer announces the Bond & Botes announces the con Gardner, Midd.lebrooks & Flem relocat ion of its offices to 203-A W. solidation of its Riverchase office and ing announces that Christopher E. Main Street, Dothan, Alabama 36301. downtown Birmingham office • , The Krafchak and William H. Reece Phone (205) 794-0759. Daniel Building, 15 South 20th Street, have beco me associates of the firm. Suite 1325, Birmingham , Alabama Offices are located at 64 N. RoyalStree t, Rosen , Cook, Sledge , Davis, Car 35233. The firm's Huntsville office has Mobile, Alabama 36602. Phone (205) roll & Jones announces that Sheree been relocated to the AmSouth Center, 433-8100. Martin has become associated with the Su ite 705. 200 Clinton Avenue, NW. firm. Officesare located at 1020 Lurleen Hun tsville, Alabama 3580 l. The firm Mark B. Polson and Joh n C. Rob Wallace Boulevard, North, Tusca.loosa. also announces that Ron C. Sykstus bins annou nce they have withdrawn Alabama. The mailing address is P.O. has become an associate with the firm. from Polson, Jones, Bowron & Robbins Box 2727. Tuscaloosa, 35403. and are now practicing as Polson & Sltlinger , McClincy, Steiner & Robbins at 200 1 Park Place. North, Azar & Azar ann ounces that William D. Azar has become associ ated with the firm. Offices are located al 260 Wash ington Avenue. Mont The gomery, Alabama 36104. Phone (205) Prepare simple or complex wills i11 265-8551. Alabama 111inutes~vith Arron1eys'Co1nputer Net· work software. 111e stare-specific Najjar Dena burg announces that Will(Ll~rary progmms ask 11111lriple-choicetmdfill Rachel J. Moore has become associ in-the-bla11kquest ions. then compose ated with the firm. Offices are located tailoreddocume111swhich cm, beedir at 2125 Morris Avenue, Birmingham . Expe'rt--sfstems ed with yaur IBM-compatible word Alabama 35203. Phone (205) 250- To~mble processing softwllre. Userfrie ndly. no f!400. Doc~ents conuna,uls to learn. Ramse y, Baxley , McDougle & Col 11ie \Vlll~Librar y's wide\'ariety of provisions lier annou nces the re locat ion of its includes: offices to 212 W. Troy Street, Dothan. • Separate dispositions of • Grrtnling and cx.~rcise of • MariUI.Ided uc1ion 1rus1s Alabama 36303. The new mailing address personaleffec1s and really po\l.'Crsof nppoin1mcnt whh QllP provisions • Cash bequests • Credi! ettuiwlency trusts • Purcha~ of annuitic.o:. is P.O. Drawer 1486,Dothan , 36302. • Other types or dispositions. ·rh(' progran1s also prep.are: Slrote & Permutt anno unces that • Livingwill decl31'3tions • Family tree aJfidnvits • Exccu1ion checklists Thoma s A. An sley and Brent L. • t\>wcr$o r auorney • Ass.et summaries • Client interview questionnaires Crumpton have j oined the fir m's The \Vills Library isonl y one of lS stn:rc-spcci(,clibr.uics b)' AC.i\J.ineludjng : lnlt r Vh-1osTru..,;ts:: Birmingham office and Jeff Kohn has Il ouse. Condo and Co,n'I Reod Estate Sales Con1rac1s: Orfic:eand Store lka.se RJde.rs: Ne,1 Ltases: Lin1ited l~rtn c.rships-~Co m'I ~1ortgngcs/lltt cbi of Trust; Business Sales; St pura jo ined the Montgo m ery office. The lion Agreements; Sharr.holder Agrtt nu:nlSj 111nd mort. Birmingham office is located at 2222 Arlington Avenue, South; the mailing Only $200 each, with free updates for the fir st year. address is P.O. Box 55727, Birmingham Call Bernice Williams al 800-221-2972. Specify 51A • or 3\lr" disk. 35255-5727. Phone (205) 933-71ll. The Montgomery office is located at One 62 Whilt' St., New Yotl:. NY Kl013 E;ccelslor-Legal,Inc : (800) 1'21·2!172FAX (212) 431-SIII Commerce Street. Su ite 600, Mont gomery 36104. Phone (205) 263-1022. THE ALABAMALAWYER September 1992/ 355 Suite 200, Birmingham, Alabama Kaffer & Pond. Officesare located al Dick &: Wisner . omces arc located al 35203.Phone (205)252-1388. 150 Government Street, Suite 3003, 100 Washington Street . Suite 200, Mobile, Alabama 36602. Phone (205) Huntsv ille, Alabama 35801. Phone T. Roe Fra:.er, II announces Lhe 438-J:iOS. (205)533-1445. relocation of his firm. Lanlf1lo11 & Frazer , to the Langston-FrazerBuild Wallace, Jordan , Ra tliff, Byers & Domi nick , Fletche r, Yelldlnlf, ing, 201 N. President Street. Jackson, Br an dt announces thal B. Glenn Wood & Lloyd announces that B. Mississsippi 3920 I. Phone (60 I) 969· Murdo ck, formerly senior attorney Boozer Downs, Jr . and J. Mitchell 1356. with Vulcan Materials Company, has Frost, Jr . have becomemembers of the Joined the firm as a partner. The firm firm. and Vietoria VanValhnburgh Yearout, Myers & Tr aylor also announces that Jam es E. Ferga Norris has become an associate of the announces that David F. Miceli has aon, Ill and Melissa M. J ones have firm. Officesare located at 2121 li1gh· become an as.50Ciateof the firm. Offic:ts Joined the firm as associates.Offices are land Avenue,Birmingham. Alabama. The are located at 2700 SouthTrust Tower, located at 2000 SouthBridge Parkway. mailingaddress is P.O. Box 1387.Birm 420 N. 20th Stnet. Birmingham,Alaba Suite 525. Birmingham. Alabama ingham35201. Phone (205)939-0033 . ma 35203. Phone (205)326-6111. 35209. Phone (205)870-0555. Scho ll & Tam er announces that Richard E. Dick and Michael K. Cecily L. KaHer and Uarr y S. Peter A. deSarro. DI, formerlyin pri Wisner announce the formation of Pond , IV announce the formation of vate practicein Tuscumbiaand formerly a law clerk to JeffersonCounty Circuit Judge Josh Mullins.has become associ ated with the firm. Officesarc locatedat #4 omce Park Circle. Suite 315. Birm ingham. Alabama 35223. Phone (205) 871-6004. Terry L. Mock announces that Sheila J, Fisher has becomeassociat ed with the firm. Offices are located al 401 N. Main Street. Tuscumbia,Alaba , ma. The mailing address Is P.O. Box 740, Tuscumbia 35674. Phone (205) 386-7090. Barre C. Dumas, Michael T. Mur• phy and John T. Bende r announce the formation of Duma1, Murphy &: Bendu . 209 N. JoachimStreet, Mobile, Alabama36603. !'hone (2051431-6000. Pierce , Carr &: Alford announce that B . William Wasden , formerly with the Officeof the Governorand the Allomey General's Officeof the State or Alabama.has joined the firm. The mail ing address is P.O. Box 16046.M obile, Alabama36616. Barri a, Caddell & Shank • an nounces lhat Arthur W. Orr has becomeassociated "~th the firm. Offices are locatedal 214 Johnston Street, S.E., and the mailing address Is P.O. Box 2688, Decatur. Alabama35602. Phone (205)340-8000. Gorham & Wa ldrep announces that Karen Brown £vana has become an associate. Officesare localed at 2101 6th Avenue,North, Suite 700, Birming ham, Alabama 35203.Phone (205) 254• 3216. • 356 / September 1992 n1~;A I.AB/\MALAWYE R REPORTS FROM IOLTA GRANT RECIPIENTS A HelpingHand TUSCALOOSACOUNTY by ALYCEMANLEY SPRUELL (This is the first in a serieshighlighting thosewho have benefitedfrom the Alabama law Foundation's/ OlTA program.) as *sis *tance : the act of giving ai d or support An an active member of our bar, the benefits from the foun s ee synonyms at hel p dation grants to the over 37 county law libraries and to the various LawDay and adult literacy projects are obvious. How ever. the benefits from grants to entit ies such as the uring the 1992 annual meeting of the Alabama Tuscaloosa Children's Center, which provides outreach and State Bar, I had the wonderful responsibility of counseling for abused children in our area, may never be delivering the most recent version of The Hand known. Such assistance is the key to the success and survival book for Older Alabamians to the board of the of these typesof projects throughout the state. mAlabama Law Foundation. The foundation, in As the immediate past chair of the Tuscaloosa County Legal conjunction with the TuscaloosaCou nty Bar Association. had Aid Committee, I can also attest to the assistance received by provided $6,500 of funding to a.llow 5,000 newly revised our bar from the AlabamaLaw Fo undation. These grants have copies to be printed for the Legal Counsel for the Elderly (a been crucial to the operation of our free legal clinics that division of the University of Alabama LawSc hool Clinical Pro occur twice monthly.Our bar has also receivedfunding for our gram). These handbooks are provided through nutrition cen domestic arbitration project which has been an immense help ters, nursing homes and other locations in the western corri to our domestic relations court and bar. dor of Alabama. The most unique assistance our bar has received from the This was not the first time that the foundation (which is foundation was a grant to our Children's Hands On Museum funded by our lOLTA funds) had provided significant assis {CHOM). CHOM developedan exhibit for the elementary age tance to this office.With a second year of proration looming, children that allowed their participation in actual court pro the Legal Counsel for the Elderly could not replace a staff ceedings. With bar association members act ing as judges attorney for the summer of 1991. The foundation provided and/or as attorneys, well-known storybook characters like funding for three public interest law internships in this office. Alice in Wonderlandand Jack in the Beanstalkwere charged These third-year students providedinva luable assistance to the and subjected to trial for unlawful trespass and burglary. The indigent and elderly throughout west Alabama while gaining exhibit was popular and very beneficial to our area school chil personal knowledgeof our state's need for volunteer lawyers. dren. The students were asked to providesummaries of their experi Assistance, according to several sources I checked, is syn ences at the end of the summer; to describethese narratives as onymous with the concept of help. Through the Alabama Law moving and inspirational would be a gross understatement Poundation grants received by the Tuscaloosa County area. funding public interest law internships is not unusual for true assistance has been given to the elderly, the indigent, the IOLTAfunds. T he North CarolinaBa r, for example, has provid children and the future lawyers of our state, who will, it is ed assistance for students from five different North Carolina hoped, continue our bar's dedication to support our state and law schools for over five years. These funds have enabled our communities. numerous first- and second-year students to experiencepub lic The helping hand of assistance from U1e Alabama LawF'oun interest law service. dation has been firmlygrasped by our area - and greeted with Three University of Alabama Law School students were much appreciationand continued gratitude. • recipients of Alabama Law F'oundalion grants for the summer of 1992. 1\vostude nts are workingal the AlabamaCapita l Rep resentation Resource Center while the third won a summer internship with the Southern Environmental Law Center. Alyce Manley Sp ruell Alyce ManleySpruell holds a bachelor'sdeg ree from Vanoerb!l1Un1 vors11yan d a None of these students could have pursued this dream without law oogroorrom 1ho Unlvors11y cl Alabama School of Law She curren1ly servesas the IOLTAfu nd assistance. direc!oc ol law devetoomenlfor U,e Urwersiry'sSct}oo l of Law THE ALABAMALAWYER September 1992I 3S 7 RIDING THE CIRCUITS The Russell Count y Bar Associ The Tu sca loosa Count y Bar NOTICE ation elected new officers at its June Associatio n recently held its annual monthly meeting. The new officers meeting and the following officers All Alabama Attorneys are: were elected for 1992-93: President: Patrick P. Loftin, President: Dan M. Gibson, Changes regarding Licensing/Spe Phenix City Tuscaloosa cial Membership Dues 1992-93 Vice-president: MichaelJ. Bellamy. Vice-president: Kathryn McC. Phenix City Hanvc>od,Tuscaloosa Act #92-600 was passed by the Secretary/freasurer: Charles E. Secreta,y/f reasurer: Robert H. Alabama Legislatureand amends Ployd,Il l, Phenix City Shaw. Jr .. Tuscaloosa Seclion 40-12-49 , Code of Alaba ma, 1975, effectiveOctober 1, 1992. This act Involvesi mportant changes as follows: 1. Licensefees inc/ease lrom An affordablelegal encyclopedia $150 to $200. Special member ship dues Increasefrom $75 10 isjust a phonecall away for $100. 2. Attorneysn o longer purchase, theAlabama attorney. from a countyprobate j udge or licensecomm issioner.annual ALLa wyers CooperativePubl ishing,we occupallonalli censesto practice understandyour need for sourcesLh at but instead,purchase these can give you fas~ no-nonsense, inex from the AlabamaStaie Bar. pensiveans wersto your legal inquiries. Look no further Lhan LCP's integrated All licensesto practice law, as library of legal publications,w hich In well as paymentor specialmem cludes our Am Jur 2d series, where bership dues, will be sold through you'll findan encyclopEdic,A -Z state ment of the complete bodyof law - the AlabamaState Bar Headquar· stateand federal, civil and criminal, tars. Licensesmust be purchased substantiveand proced ural-a nd much betweenOclober 1 and October31 more, al/ at an affordable price! or be subjectto an automatic 15 Asyo ur Lawyers CooperativePublishing represen tatives,,ve are Lhevi tal link percentpena lty. Second notices between our products and you. We will work wilh you to assess your will not be sent! particular needsa nd requirementsa nd shareour thoughtso n what resources In mid-September, a dual invoice will be of the greatestva lue to your practice.T ogether, we wil I find creative, to be used by both annual license effective, and cost-saving approachesto Lhe art of legal research. holders and special membersw ill Let us showyo u the productstha t can help yourAlabama practice-from ALR be mailed 10every lawyer admitted to Am Juror usesl o USL Ed. We'll demonst.rate how our cross-referencing 10prac tice law in Alabama. Upon systemw ill save you time and money,and we'll give you the faasa bout our receipt of paymen1,those who pur interesL-free terms. Just contact your local representative or dial 1-800-762- chase lhe license will be malled a 5272 ext. 5221 today! licenseand wallet-sizedli cense for Identificationpurposes . EdDorgan Christian Etters GuUShores Smyrna,GA Those electing special member (205) 968-ll36S (404) 333-8026 ship will be sent a wallet-sized ID card for ldenlificationpurposes and Karen Davis Brian Rooks Jim Bellamy,II also to serve as a receipt. Doraville, GA Birmiogham Munre<> 358 / September 1992 Tf{EALABAMA LAWYER HELPING THEALCOHOLIC COLLEAGUE by BETTY REDDYand RlffH WOODRUFF CopyrightC) 1992.American Bar Association. Reprinted by permissionof AmericanBar Association. (Theartic le originally appearedin the May 1992 Issueof TheProfessi()lla/ lawyer. Vol. 3. No.3. TheProfessiona l l.awyeris published by the Special Coordinaung Committee on Professionalism of the American Bar Association Center for Professional Responsibility.) emember that eager. bright there is the alcoholic's personal and In the legal community. Lhe statistics young associateyou hired a professional devastation. Second, In the are even more startling. A study spon few years back? Who could context of an alcoholic lawyer. mem sored by the Washington State Bar have gue~d he would tum bers of the lawyer's firm must share Associationfound that over 18 percent mout to be a p roblem for the firm? He's responsibilityfor mistakes or misdeeds of their lawyers were alcohol depen missingappointments . coming to work of the addicted lawyer.either through denL F!etween50 percent and 75 per Late and isolating himself lrom co malpracticesuits or professionaldisci cent of all disciplinarycases nationwide workers. Peopl, around the office are pline for fallure to assure that all mem involve chemical dependency and starting to talk about him. Even a few bers of the Orm conform to the ethics approximate))•60 percent of discipline clients have called to voice concerns rules. (See ModelRule SJ on responsi cases in California involve chemical about his competence.You can tell that bilities of a partner or supervisory dependence or emotional distress. a downward spiral has begun for him lawyer.) More importantly. the (State Bar of CaliforniaLa wyerP ersonal and evidencehas started to appear that unchecked advance of alcohol depen Assistance Program). Fortunately. there he may be drinking excessively. but is it dency In lawyers can ~dversely affect is help available for impaired lawyers. reallyany of your business? What could competent representation of clients' There are steps colleagues can take lo you do about his problem anyway? legal matters ond ultimately destroy help addicted lawyers berore they cause For many lawyers, watching a col public trust In the legal profession. Irreparable damage and become lawyer league suffer from chemical dependen Lawyers,like the rest of the popula discipline statistics. cy is a frustrating nnd confusing experi tion, are not Immune from the ravages of alcohol dependency.A new study by ence. Oiten it is tempting to do nothing Id entifying the problem and hope that the problemsolves itself. the National Center for Health Statis Unfortunately,alcohol dependencyis a tics reports that nearly 43 percent of The first step is to know progressivedisease that will only wors adult Americans.about 76 million peo the signs of impairment It en if ignored. Alcoholismis a chronic ple. ha,oea problem drinker in the fami. may be difficultto recognize illness and can be fatal if untreated. In ly. Approximati!ly75 percent of adults \ the differencebetween social 1986.alcoholism was the ninth leading drink at least once or twice a year dur and problem drinking because alcohol cause of death in the United States. ing celebrations or special occasions. is a fact of dailylife for many.Also, peo, causing over 26.000 deaths that year. Many dr ink moderately. some drink pie often reel unco mfortable about Wcoho/ and I lea/th, J990). heavily wltJ1no serious problems, and invading the privacyo f others. Howev Even in slluallons that are not yet about IO percent drink in a way that er, alcoholism l11dicators are recogniz life-thrcntcning, the price for ignoring causes problems for themselves and able. It is not necessary Lo be an expert the problem Is Incredibly high. f'irst, others. on the symptoms and progression of THE 1\I..AF!AMA LAWVER September 1992 / 359 the disease to become part of the solu tion. Early intervention provides the best chance of helping the alcoholic. An alcoholic predictably exhibits identir.ablecharacter istics of emotional disruption, destructive conduct. inter personal difficulty and responsibility avoidance.(See box.) If several indica tors are present and the person contin ALCOHOLISM ues to drink inappropr iately despite continu ing problems related to the drinking, it may be time to give serious INDICATORS consideration lo an intervention. A at,1/eaguem ay have a drinking problemif he or she: • Frequently drinks to drnnkenness. The intervention • Avoidsnon -drinking friends or occasions. Alcoholism is not an insol • Manipulates others. uble prob lem. It can be treated. One proven method • Drives when drunk. of addressing the problem of • Has receivedo ne or more DUls. iiaddiction and motivating the problem • Pails to followthrough on responsibilities or commitments. drinker to seek help is a formal inter • Deflects with anger and blameall attempts to discuss drinking. vention. • Promisesto cut downon drinking and seems to try to do so. lnterventionis a well-establishedpro cess that interrupts the course of alco • Frequentlyembarrasses family and friends. holism. It provides the amicted person • Alwayshas an alibi for drinking-related behavior. with facts about their symptoms that • Seems to have memoryb locks at times. others have seen. It also brings forth • Has askedanother lawyerto cover for him/her in court several times expressionsof love. caring and support for getting help to combat the addic in the past fewm onths. tion. • Has been noticeably drunk at several recent social affaifs. Well-planned formal interventions • Fails to appear at scheduled meetings with clients. have about a 90 percent success rate in • Showsa deterioration in quality of work. gett ing individuals to a place where • Has started to avoid having lunch with the normal group. they can be evaluated and given assis tance or treatment as necessary. Also. • Frequentlytakes long lunches. interventions are l 00 percent success • Appearsnoticeably drunk Of differentafter lunch. ful in giving the immediate circle of • Has often been ill on Mondayso r l'ridays. family and friends an understanding of the illness and a recovery plan for themselves. It is never necessaryto wait for someone with a drinking problemto grams are developing throughout the • Are there enough indicators of alco· "hit bottom!" nation. The ABAhas lists of contacts holism? One individualin the drinker's circle for lawyers' assistance programs in • Whatare the caller's goals? can review the indicators of alcoholi sm every slate. (See box, page 361.) These • Is there real care and concern? and reflect upon personal feelings and programs operate hotlines that can • Are there other participants to be reactions in deciding to investigate the refer people to ap1>ropriale resources included? use of an intervention. Fortunately, for for assistance by professional interven • Will the caller contact potential par those in the legal profession, help is tionists. In some states the programs t[cipants and bring them together not far away. Lawyer assistance pro- have their own trained, certified volun· for training? teer intervenors who form teams that • What are the participants' goals? Do follow the same process oreducat ion. they care or just want to "get even?" Betty Reddy train ing a.nd planning that a profes (Those who want to punish or gel Belly Recicty. Ce AP , iS an ocetipat1ona1 serV1ces consult.antat Parksl 360 I September 1992 THE ALABAMALAW YER AREYOU CONTRIBUTING TO THE PROBLEM? Colleagues of an impaired la\\')'er • Try 10 control the lawyer's drink would otherwise normally elC)'Crience may feel embarrassed. confused. ing. from his dnnking,. Thal im'Olvemenl angry. resentful, an>1ous.guilty. or • Angril)'lilSh out al the la\\yer. allows or enables the impaired lawyer helpless lo address the s1lualion. • Lose confidence and trust in the to be deluded into believing that the These reactions can result in behav• lawyer. problems can be correcled with ,or lhal masks lhe problem. A col • Avoidthe laW)'er. everyone'shelp. It also deludes family league may, for examplt, • Denylhe lawyer'sdrinking pl'Qblem 11ndfriends inlo believu,g that there must be something lhey could do dif • Cover for the drinker by assuming When colleagues reacl in Lhese ferently to stop the drinking, or. or shifting resp()nsibitilies within ways, lhey are contributing lo the alternatively. that lhe situation is lhe firm or making e.xcusesfor the course of the alcoholism by softening beyond hope and the alcoholiccanno t lawyer's failure l()perForm. or r~111ovingthe pain the alcoholic be helped. with that reality. The lnlcrvenllon will her. l'arlicipanls are coached on their also help parlicipants replace their own individualroles and write down specific enab ling behavior with responsible detaiI s about recent personal incidents actions. (See box.) Parllcipanls learn with the alcoholic, including lheir own ADDITIONAL how to become part or the solution feelings about these events, and state rather than the problem. ments of their concern and desire to RESOURCES The intervenor may advise pulling a help. temPorary hold on plans while some or The intervenor will also help the Law firms. law school$.bar asso all members of the group attend sup group prepare for gelling the alcoholic ciations, disciplinary agencies and Port meetinl!,Sfor friends and familiesof to the meeting and for conducting the lawyer assistance programs across alcoholics. These meetings Cllnbe an meeting itself. The specialist will con the country can now rent or pur important transition to the powerful trol the meeting, assuring the alcoholic chase a videotape depicting the and ernotionaUycharged atmosphere of that ewryone is there because they care steps or an intel\'enlion. For infor an inlel\oention.Those involvedneed to and \\'ilnt to help, asking the alcoholic mation about lawyers, alcoholism care enough about the problem drinker lo listen to everyonebefore responding and the intervention process, con· to calmly and courageously state the and ensuring that the meeting follows tact Arthur Carwin,a.ssistant profes facts about !heir experiences w,lh the the agreed-uponplan. Usually.arrange sionalism counsel. ABA Center for alcoholic's drinking, setting aside an)' ments ior an evaluationappointment or Professional Responsibility. 541 anger or resentment. They need to be a treatment bed are made before the North Fairbanks Court, Ch,caito, able lo say ~1 care about )'OU" and mean intervention and, with the impaired Illinois60611-3314. 13121 91!8-5294. it. They may also need to prepare to lawyer's consent. an appointment for an ~·or informalion about other state and stand by one or two realistic assessment and appropriate treatment resources related lo lawyers' sub changes they will make in how they followsthe meeting. stanceabuse. includingdirec1orie5 of interact with the alcoholic. For exam There may be ambivalenceabout partic state and local lawyerassistance pro ple. a partner may have lo say, "You ipating in an intervention, but the will grams and national workshopmale· were a ,,alued member of this firm. but ingness of individualsto bring an inter rials, contact Donna S11ilis.s taff have become a liability. If you continue vention into lhe life of someone they director, AB1\ Commiss ion on to drink. wewill have to let you ito." know and care about is an important Impaired Attorneys,54 J North ~'air During the training phase. the inter step on lhat person's road to health. It ban!(sCou~t. Chicago. Illi nois 60611- venor educates the group about the can 11lsobe the entry into a recovery 3314. Phone (312) 988-5359. dynamics or alcoholism as they arrect path for each of the concerned partici the alcoholic and those close lo him or pants. • THE ALABAMALAWYl.::R September 19921 36 l . ®. ALABAMA STATE BAR TELEPMONEios-ib9-15 I 5 P.0 . 80X671 MON'rC()MERY , ALABAMA %101 Dear AlabamaLa"')' er: We are pleased to tell you the AlabamaState 13.lr.through its LawyersHelping La"~·ers Committee . has implementeda comprehensiveprogram to assist those in the legal communitywilh substanceabuse problem:;. The ALA-PALS(Posit ivtoAction for Lawyers)is a group of lawyerswho desire lo assist substance-abusingmembers o( Uie legal communityand lheir families.We are not part of the disciplinaryprocess and have been granted an attomey-clienl privilegeby the board of bar commissionerslo protect disclosuresmade in order to assist a subslance-abusinglawyer. See ,\la. Rule or Proressional Conduct8.3 (cl. Al.~-PAI.Shas three missions:(I) Identificationand investigationof substana abuse problemsor lawyers;(2) treatment and rehabilitation;and (3) follow-upand recovery.We recognizethat addiction to alcohol or other drugs is a primary chronic illnessand is not a moral defoctor character deficiency. 1'hereis no knowncure for chemical dependencyand U1e ability to handle any quantity of drugs will get progressivelyworse. Chemic,! de1>endencyis, however. treambleand the coursemay be arrestedby total abstinencefrom mood-alteringsubst.inces. AlA-PAl.Sh as draftedguidelines which implementa programof inten-entionfor la\\~•erswilh substanceabuse problems which affect their professionalconduct. We ,·eceive.in confiJence,information from any source concerningany lawyer thought to havea problem.A discreetand confidentialinvest igation followsalong with a carerul evaluationof the facts. 1'he committeethen makes recommendationsto the lawyerconcerning sources of help. Alli ,wesligationsare conducted byvo lunteers with the knowledgeand authorizationof the chairman. The rehabilitation portion generallystarts with a reviewby Ll,echairman with lhe volunteersof their results. tr the attor· ney is believedto havea problem,the decisionis madeas to "'heLlierto approachthe lawytrpr i,•ately,or, with full consid· eration of Lhe privilegedand confidentialnature or the matter. enlist 4thers In an attempt to persuadehim to s;iekhe lp. These. most commonly,would includepartners or family members.1'he choices for rehabilit.ition are in· or out-patient treatmentand AlcoholicsAnonymous. ALA-PALSwil l continuew ith a follow-upand recoveryp rogram lo monitor and assist the recoveringat torneyand lo keep the ALA-PALSproject advisedso that the program can certifyto the state b.ir that il is performingits task. The volunteers are drav.1n from la\'l)'ers. judges and layn1e.n fn Alaba1na'" ho are recoveringc hemicallydependent persons or \\,hose per· sonal life or professional experiencehave promptedI n Ih em a sincere Interest and concern in helping chemicallyde 1>en dent lawyers. Thegoa ls of Al.A-PAI.$are as follows: • 1'o educate the legal communityin Alabamaconcerning lh e diseasea or lcoholismand chemical dependency.particular - ly as the dis;iaseaffects them. • 1'0 idenli(y chemicallydependent l awyersin Alabama. • To determinethe possiblechemical depende ncy o( any lawyeri n Alabamawho is thus idenlified. • To arrange intervenlions in lhe lives of praclicingchemically depe nde.nl l.i,vyers.using all the resourcesavailable and appropriate in each case,including fam ily, friends.l aw partners. other lawyers,judges. and chemical dependencyco un stlors. We feel sure that when U1esegoa ls are mel, the public will be protectedand those membersor the legal communityw ho desire help will remain as productive membersof the bar and our society. Manyefforts and much expenditure or time has brought us to this point or being able to offer the ALA-PALSp rogram to help our peers. Pleaseknow there Is confidentialhelp if you or someone in the legalcommunity you known eeds this pro gram. Pleasecall me at (205)328-5330 for referralto AL~-PAI.Sor answersto questions. Cordially, TerrellWynn, c hair LawyersHe lping LawyersCommittee AlabamaState Bar l 362 / September 1992 THE ALABAMAI.A WYER THEUNAUTHORIZED PRACTICE OF LAW? by DAVlD8. CAUTHENand l. BRUCEABLES he unauthorized practice mises defaulted,contrO\lerted or dis The legislati\-eintent by this section of law is indirectlydefined puted accounts, claims or demands was to insure that laypeople"-ould not by Alabama Codi! §34-3-6 between persons with neither of serveothw; in a representativecapacity ( 19751wherein it stales whom he is in privily or in the rela in areas requiring the skill and Judg IIwho may practice law in Alabama. tion of employerand employte in the ment of licensedattorneys. State f.,'xRel "(a) Only such persons as are regulaTly ordinarysense; Porterv. AlabamaAssociation of Credit licensed have authority lo prnctice is practicing law. Executi1JeS,338 So. 2d 812(Ala. 1976). law. What about the drafting or filling in (c) Nothing in this section shal l be of blanks in printed forms of instru (bl Por the purposes of this chapter. conslrued to prohibit any person. ments relating to land by real estnte lhe practice of JawIs definedas fol firm or corporation from attending agents, brokers. Lille companies or lows: to and caring for his or its own managersas constituting the practice of Whoever. business, claims or demands. nor law? The Alabama Supreme Courl in ( 1) In a representative c;ipacity from preparing abstracts of title, the case or Coffel! County ilbstroct u. appears as an advocate or draws certifying,guarantee ing or insuring State Ex Rel Norwood,445 So.2d 852 papers,p leadings or documents, or titles lo property, real or personal. (Ala.1 983). basically answers lhls ques performs any acl in connect ion or an interest therein, or a lien or tion. This decision prohibits lhe discus• with proceedings pend ing or encumbrancethereon , but any such sions of law or purely mechanical fillIng prospective before a court or a person. firm or corporat ion en- In of blanks in areas that traditionally body, board. committee, commis 11,'lgedin preparingabstracts of title, have been the terrilory of nllorneys. sion or officerconstituted by (awor certifying,guaranteeing or insuring The decision also says, in an area that having authority to take evidence titles to real or personal property can be as fraught with complications in or settle or determine conlro'lllr are prohibited from preparing or and pitfallsas purchasing real estate, an sies in the exercise of the judicial drawingor procuring or assistingin attorney is the only appropriate person power of the state or any subdivi the drawingor preparationof deed£. to gi,•e legal advice and determine sion thereof: or conveyances, mortgages and any exactlywhat type of instrument best fits (2) For a consideration, reward paper, document or instrument the needs of the parties. This case was or pecuniary benefit, present or affecting or relating to secular decided nearly ten years ago. There has anticipated. direct or indirect. rights. which acts ne hereby been very little Judicial action in this advises or counsels another as to defined to be an act of practicing area since. The case of lawyl!r's Title secular law. or draws or procures law. unless such person, firm or Ins. Corp. u. Vella.577 So.2d578 (Ala. or assists in the drawingof a paper, corporationshall ha\oea proprietary 1990) held in part that a title company document or instrument affecting interest in such property:howaoer, had breached its duty to disclose a or relating to secular rights: or any such person. finn or corpora known title defect. an IRS Right of (3) Por a consideration. re.,.,•ard t Ion so engaged in preparing Redemption. Justice Jlouston dissent· or pecuniary benefit. present or abstracts of title, certifying,guaran ing and concurring in part noted that anticipated,direct or indirect. does teeing or insuring titles shall be any act in a representativecapacity permitted to prepare or draw or D8Vld a. C•ulhen in behalf or another tending lo procure or assist in the drawing or David 9 cauin.n . a Oocatut 111orncwwitf'I 11,e obtain or secure for such other the preparation or simple affidavits or firm ol cevihen & Cai.-lhen. !1 Cha!rpe,son 011110 Alabama S1ataSat~ Un11uthcwodPractleo of IAw prevention or the redress of a statements of fact to be used by o.m-.n.. wrong or the enforcementor estab such person, firm or corporation in lishment llf a right; or support of its tille policies, to be L. Bruc e AblH retained in its files and not to be L . Bt\lCO Ables Is ,,,,. VICO•Cf'IO•Iol I~ commmoo (4) As a vocation, enforces, and p,acuccs ,n Hun1.1vmawith 1r,1 l,1mot Bouy, secures, settles. adjusts or compro· recorded." Ables. Tatum. Limo& Baxtor THE ALABAMALAWYER September 1992/ 363 the Vella case stood in contrast to the with only the right on the part of U1e Coffee County decision staling that other party lo be a signatory. Most there was no duty to disclose on the would not realize that when an account part of the title company lo the pur Is opened by a parent with one or the chasers,noting that CoffeeCounty held parent's Ovechildren as a joint account NOTICE title companies are forbidden to give with survivorship arrangement, the legaladvice. Vella. 570 So.2d587. child on the account will take the entire All Alabama Attorneys Whether we are cognizant of it or account upon the death of the parent not, there is a tremendous amount of The other four children will take noth· Changes regardingLI<:ens1ng/Spe unauthorized practice of law conduct ing. Obviously.this is not what the par clal Membership Dues 1992·93 ed in Alabama.The average la>'ll'rson ent intended. The banker ad,•ised the Aci #92·600 was passed by me has no idea what the unauthorized account to be opened in this manner, Alabama LeglSlatureand amends practice or la,., is. or why there are and this is giving legal advice. The Section 40-12·49 , Code of AJaba. slAtutes in t\oery slAleprohibiting the adviceis very detrimentalLo the public. ma, 1975, elfec11voOclober 1, unauthorized practice of law. Clearly. There are many areas that need to be the pul'J)Oseis to protect the general lookedinto. such as: 1992. public. (al The sale of booksor formsdesigned Thosact 1nvotves1mponan1 Most real estate agents and bankers to enable laymen to achjeve legal changesas follows: do not know the ltgal difference results without assistanceof attor 1. Licensefees increase trom between a deed conveyingproperly to neys. $150 10$200 . Specialmomber· parties as joint tenants with right or lb) The practice by a credit collection ship dues Increase from $75 10 survivorship as opposed to tenants In agency of threatening debtors that $100 . common. The average banker or finan legal action will be brought or con 2. Attorneysno longer purchase. cial institution docs not recognize the templated if the debt is not paid. from a coun1yproba 1e judge or legal significance of a bank account Your comments on areas that you licensecommiss ioner, annual under joint names with survivorship have encountered on a regular basis occupalional llcenses1 0 pracllce provisions as opposed tc>nn account "'herein non-lawyers are giving legal but. inslead, purchasel hese opened In the name or an Individual advice is solicited. • from lhe AlabamaS1a1e Bar. HEALTH CARE AUDITORS, INC. All lloenses to praclice law, as well as paymenl of special mem· bershipdues, will be sold through lhe Alabama S1a1a Bar Headquar· 1ers. Licensesmus1 be purchased betweenOclober 1 and October 31 or be subjeo1to an au1omallc15 MEDICAL& DENT AL MAI.PRACTICE EXPERTS percent penally. Second notices • GRATISMEDICAL TEAM PREVIEW OF YOURCASE will nol be sent! Inmld·Sep1ember. a dual invoice • GRATISconsu ltation bycllnlcal rep INYOUR OmCE 10be used by bolh annual rocense • GRATIScourt room ualatance by our cllnlcal reps holdeis and special memberswill 11th HOURNOTARIZED AFFIDAVITS: SUPER RUSH be mailed to every lawyer admiued to practice law In Alabama Upon Slg:ned written oplnl ona from $295 receipl of paymen1.thosewho pur· • We are NOT simply a referral service. We work chase lhe license will be malled a closely with you to BUIID YOURCASE license and wane1•s1zedlooense lor Identificationpurposes . • All medical experts are actively practicing · Thoseelecting special member· BOARDCERTiflEO • ffl) RETIREDEXPERTS ship will be sen1a wallet·siled ID • .If.your case bas no merit we will document such card lor 1dentilica11onpurposes and for Y.Ourfirm GRATISI also to serve as a receipt • Flnanclal plans tailored to your exact needs If you do no1reoelva an Invoice, please nolify Allee Jo Hendrix, HCAIM EDICALI.Jl1 GATI ON SUPPORT TEAM membership servicesdirector , al 1• P.O. Box 22007 SL Pel•rsburg.Florida 337 42 800·354-11154 (in•stale WATS) or 813-S79·8054 (205) 269 -1515 lmmedlalelyl For SUit Service FAX (8 13) 573,1333 364 / September1 992 THE AI..ABAMA 1..AWYER NEWALABAMA WORKERS' COMPENSATIONACT by STEVENFORD (The author acknowledgeswith appreciation the assistance of Philip Segrest,a 1992graduate of the University of AlabamaSc hool of law.) INTRODUCTION I. APPLICABILITY The new Alabama Workers' Compensation Law signed by Under prior law the workers' compensation statutes did not Governor Hunt on May 19, 1992, is the resull of a two-year apply to an employer who regularly employed less than three process which attempted to address the growing problems in employees.The act raises the minimum number o( employees this area. The Department of Industrial Relations initiated the lo five. except for those employers in the business or con reform and once its actions became known "advisors'' began structing single family, detached residential dwellings. Also. coming out of the woodwork. Ultimately, many individuals, now under §25-5-1 , an employer is anyone who "employs groups, organizations, and coalitions attempted to direct another to perform a service for hire and pays wages directly and/or influence the course of the proceedings and the final to the person." Employeem eans "every person in the service outcome which made for a p0litical jigsaw puzzle. of another under any contract o( hire". The initial reform bill was introduced in May 1991. in the Under prior law contained in §25-5-10, those attempting to regular session of the Legislature. Informal negotiations actu evade liability by scheme or artifice are declared "employers". ally had begun before the bill was introduced and continued However, this section explicitly forbadea construction impos throughout the i991 session. The bill quickly passed the ing such liability on contractors and subcontractors. The new House but died in the Senate without being voted on when the act deletes this provision relieving contractors and subcon session ended in July. Behind-the-scene negotiations contin tractors of liability. ued throughout the remainder of the summer, fall and winter Employers electing not to accept coverage must now give until Governor Hunt called for formal negotiations immedi employees and applicants conspicuous notice of that fact. ately before the specialsession set January 27. 1992. These for Under §25-5-50. school boards need not provide coverageuntil mal negotiations failed to produce a consensus, and thereafter they receive adequate funds from the special education trust the special session basically consisted of more intense negotia fund. The act also contains a special provision allowing volun tions and political lobbying. Although progress was made, the teer fire fighters to receive coverage from their departments, specialsession failed to produce a bill and the issue was intro based upon U1esalary they earn in their regular jobs. ILd oes duced once again in Lhe 1992 regular session. Continued not make volunteer firemen's regular employers liable. negotiations. lobbying, and a variety of pressures eventually led to the new act. Needlesst o say, no single answer could satisfy e,,eryone.T he II, INSURANCE final version o( lhe bill represents a true compromise contain A. Employers' options lo secure pa,Ymentof compensation ing many provisions in which the line in the sand was drawn. Where the employer elects to act as a self-insurer and the In some limited ways the process could be likened to the labor director rules adversely, the act expedites appeals in §25-5- and birth of a child. The two-year labor was at times painful, 8(d)(2) by providing that the presiding judge shall within ten intensive and exhausting. while at the same time mixed with days after notification of appeal assign a member of the court determination. apprehension and second-guessing. The birlh lo hear the case and Lhematter shall be set for hearing at the of the bill brought a feeling of relief and satisfaction, yet with earliest available time. Under prior law, trials of these issues that feelingwas a sober realization that it possessedthe poten were to be "without a jury unless the employer demands a jury tial for both good and bad. trial at Lhe time of taking such appeal". The act strikes this Only time will tell if the real issues facing workers' compen provision permitting a jury trial. The act raises the minimum sation have been effectively addressed or whether the act is fine for failure to secure compensation from $24 to $100a nd only a band-aid placed on a lesion, or perhaps a complete mis authorizes the court to impose a S100 per day civil fine. In diagnosis.T he followingis not a technical analysis or the new regard to employer's insurance policies, filings which contain act, but simply a topical summary of the changes in the law aggregate industry data of classification of risks and premiums presented from a neutral standpoint. are to be public records under §25-5-8(0(2). THE ALABAMALAWYER September 1992 / 365 B. Employer Bill of Right s - §25 ·5·8(g) B. Compensatio n The employer may, by wrilten request. require his insur· 1. Permanent Partial Disability - §25-5-57(3)(i) - ance carrier to provide a list or claims made, amounts paid, If an employee suffering a non-scheduled injury returns to details of the workers' treatment, and notice or any proposed work at the same or greater wage, his disability is equal to his settlement. Failure to comply subjects the insurance carrier physical impairment and no evidence of vocational disability is to a fine of between $25 and $100. In addition, if a court allowed. 1r the employee loses his job within 300 weeks of the finds that an employee made a rraudulent claim. the employ date of the injury. he has two years lo ask the court to recon er may fire the worker without worrying about §25-5-11.1 sider his rating and at U1is time may present evidence of voca sanctions. tional disability. The court may not reconsider the assessment if the employer establishes one of the following by clear and C. Small Employer Incentive Pla,u - Sect ion so• convincing evidence: (l ) the employee is on strike, (2) the The act will permit insurance carriers to give premium dis employee quit voluntarily without good cause, (3) the employ counts or 10 percent and 15 percent to small employers who ee was fired for a dishonest or dangerous act in connection do not suffer any on-the-job injuries ror one and two years, with his work, (4) the discharge was for misconduct after the respectively. Similarly, the insurance carrier may assess a 10 employee received a warning. or (5) employee losl a necessary percent surcharge against a small employer who suffers two or license which he was responsible for maintaining. In the new more losses. The acl defines "small employer" as an employer hearing, the court is to consider "accommodations " that who is not exper ienced-rated for workers' compensa tion would permit the employeelo continue working. insurance purposes and whose annual workers' compensation 2. Permanent Total Disability - §25·5·57(4) - premium is less than $5000. What. under prior law, constitutes the sole basis of permanenl total disability would under the act be prima facie evidenceof permanent total disability, but is not the sole basis of the Ill. LIABILITY FOR AND AMOUNT OF award. An employee refusing to accept "reasonable accommo COMPENSATION dations'' cannot be deemed permanen tly totally disabled. A. Definition Where permanent total disability is the result or a second 1. Wages - §25·5-1(6) - Wages consist or earnings injury and the first injury is not in the same employment, the subject to rederal income taxation and reportable on the fed employee is entitled to compensation only for the degree of eral W-2 lax form, including voluntary contributions made by injmy he would have received in the latter accident if the ear the employee to a tax-qualified retirement program, volun lier injury did not exist. This result followsfrom the elimina tary contributions to a §125 Careteria program, and "fringe tion of the second injury trust fund. The employee must fil e benefits" as newly defined (only the employer's portion of an affidavit or gainful employment if he receives employment health, life and disability premiums). Averageweekly earnings due to an accommodation. shall nol include fringe benefits if the employer continues the benefits during the period of time for which compensation is 3. Death - The act eliminates exclusivity of payment of paid. benefits for death foll owing disability in §25-5-57(5). In addi 2. Injury - §25 ·5·1 (g) - Under prior law, injury tion, §25·5·60 mandates payment of $7,500 to the estate of a included diseases resulting proximately from the accident. worker killed in an accident when the worker has no depen The new definition would include "occupational diseases" and dents. §25-5-67 was amended to raise allowableburial expens· es from Sl,000 to $3,000. diseases ,·esulting "naturally and unavoidably" from the acci dent. Additionally, the definition includes "physical injury 4. Del B. Discovery - §25-5-81 (f) D. Occupatio nal Disease - §25-5-110 The act places limits on discovery. No more than two depo The reform act combines former Articles4 , 5, and 7 on Occu pational Diseases, Occupational Pneumoconiosis, and Occupa sitions for each side may be taken except for good cause shown. However,each party may take the deposition of every tional Exposureto Radiation into one unified Article 4 without other party. No more than 25 interrogatories can be pro changing any of the substantive law. The new Article 4 does set pounded by either party. Parties must exchange copieso f med the statute of limitations consistently at two years. The repealer ical records, which are authenticated as business records provision in §51 of the act mistakenlyr epeals Article 6, which under Ala.R.Civ.Proc. 44(h). Each party may depose the oppos deals with Occupational Pneumoconiosis of Coal Miners, and ing party's physician. leavesin place Article 7, which deals redundantly 1vitl1 occupa tional exposure to radiation. This clerical error was in all ver sions of the bill and was retained in the enrolled acL C. Burden of Proof - §25-5-81 (c) Except for cases of cumulative stress disorders, proof shall be by preponderanceof the evidence. Here the act essentially codi E. Limitations on Recovery fies case law. The burden of proof in workers' compensation 1. Drug Testin g - §25-5-5 1 - An employee may not cases has been to reasonably satisfy the trier of fact of the recover for an accident "due to the injured employee being claim. At least one case has held that this burden is no less intoxicated from the use of alcohol or impaired by illegal than that in other civil actions. Apparently, there was some drugs". The employer can demand a drug test. Refusalof the confusion about the "any evidence" standards used by appellate employeeto comply precludes compensation. A positive test is courts in reviewing findings of fact. The ·•any evidence" stan ··conclusive presumption of impairment". The employer must dard has been the standard of reviewn ot the standard or proof. then prove that his impairment caused the accident. In cases of cumulative stress disorder, proof must be by 2. Misrepresentation - §25-5-5 1 - An employee can "clear and convincing" evidence. This is a quantum of proof not receive compensation where he misrepresents his physical greater than a preponderance. The act expands on the term in condition on an employment application and the injury §25-5-Sl(c). received aggravates that condition. The employer must put a written notice of this limitation on the application in bold D. Standard of Review - §25-5-81 (e) type. The act adopts a new standard of review. In considering the 3. Setoffs - §25-5-57 (6)(c) - The employer may "standard of proof set forth herein and other legal issues", the deduct from compensation payments the proceeds of disabili legislature in §25-5-81(e) directs the court of civil appeals to ty insurance when the employer provides the benefits or paid act without presumption or correctness. This language invites for the plan. The employer may receive a setoff in weeks the court to treat as a question of law the issue of whether against compensation owed if he conti nues the injured proof was sufficient; this issue is not one of law but of fact. employee's salary. If the employee receives back pay for any The act goes on to state that ·'pure findings of fact" may not period, he forfeits to the employer compensation paid for that be reversed if they are supported by "substantial evidence''. period. This ·'substantial evidence" language ,vas used in the tort 4. Employer Subrogatio n - §25-5-11 - In regard to reform legislation which abolished the scintilla rule. Previ ously, the appellate courts would not reverse the findings or third-party actions, the new act expands the employer's right the circuit court if based upon "any evidence", and if any rea to subrogate the disability benefits to include medical benefits sonable review of that evidence supports the trial court's and vocational benefits. It further provides that, in the event a judgment. portion of the judgment is uncollectible, the subrogatio n interest of the employer may be reduced. E, Fees an d Costs - §25-5-90 5, Govern mental Actors - §25-5-11 - An employee The judge fixes the attorney's fees of the employee "upon the may pursue a collaieral action against a governmental agency hearing of the complaint for compensation, either by law or by providing occupat ional safety and health services or its settlement". The expenses of litigation and fees charged by the employeeon ly for willful injury. Such an agency making safety attorneys representing the employers must be reported to the inspections on behalf of self-insured employer is immune Department of Industrial Relations. under §25-5-53 from all civil liabilitye xcept for willful acts. 6. Waiting Period - §25-5-59 - Prior Jaw imposed a 21-day waiting period to receive the first three days compen V. THE OMBUDSMAN PROGRAM sation for temporary total and temporary partial disability. A. D uties of th e Ombudsman - Sectio n 37* The new act extends this waiting period to unscheduled per Participation in the ombudsman program is elective. The manent partial disability, permanent total disability, hernia, ombudsman is a merit system employee who has demonstrated and death. familiarity with workers' compensation Jaw. He prepares the THEALABAMA LAWYE R September 1992 I 367 claim for the Benefil ReviewConference. in which capacity he C. Dispute Reaolu llon - Secti on 39 • (I I meets with or provides information to the claimanl, (21 I. Di.spates Between Employer and Employee - The in\'estigatescomplaints. and (31communicale.s on behalf of lhe BeneAlReview Conference may result in either a partial or a claimant with the employer insurance carrier, and health care complete resolution of these disputes. If lhc conference results providers. ln doing so. he ( I) mediates disputes and assistswith in a partial resolution, the ombudsman is lo prepare a written claims, (2) informs all parties of their rights and duties (espe· settlement agreement. The agreement must be in writing and cially where a party is unrepresented),and (3) insures that the signed by the parties and the ombudsman. An agreement claims file contain all wage, medical. and olher records and signed pursuanl lo lhis section shall be binding on ali parties. documents relevant lo the disputed issues. The ombudsman unless within 60 days after the agreement is signed or ap may not make a formal record and may nol lake testirnon>• as proved. the court on a finding or fraud. ne-,ly discoveredC\~ such. but he may ask questions of the employer,the employee. dence , or other good ci,use.shall relievea ll parties of the effecl nnd the insurance company to supplemenl or clarify the claim or the agreement. file. Me may nol serve as a n advocate for anyone or assist • If the Benefit Review Conference results in a rull resolution party after the BenefitR eviewConference. of the dispute, the ombudsman prepares a written report. Ho,sever, this report is not admissible evidence in courL It B. The Benefit Review Conference - Section 38• contains a statement or the issues resol,-td and the ombuds This is a non-adversarial.informal proceeding,available o n man's recommendatiom regarding payment or denial ofbenc· any claim arising after January 1. 1993.It is nol mandatoryand fits. In such matters. lhe circuil court will a1,oarda11omey 's is availableon ly when the employer and the employee consent fees just as in a regular court action. However.an attorney The Benefit Review Conference has three purposes. The first may represent any parly before an ombudsman withoul first purpose is to explain, both orally and In writing the rights of getting permission of the courL the parties and lhe procedure necessary for protecting those 2. Disp utes Between IJuuran ce Companies - Some• rights. The second purpose is: (I) to discuss the (acts of the times insurance companieswill disagree as to which is liable c:laim;(2) to reviewthe informationa"ailab!e for e-oaluatingthe on a claim for which compensation is clearly due. The claim; and (31to delineate the issues of the claim. The third ombudsman may enter an Interlocutory Order requiring each purpose is to mediatedisputed issues by mutual agreemenl Insurance company to pay a pro rata share of lhe compensa· lion due the claimant. Upon a final determination or iiabilily. lhe insurance company which is liable must reimburse lhe companywhich is not WE SAVE YOUR D. !lllscellan eous Provisions - SecUon 37 • TIME ... The Departmentof Industrial Relationsestablishes the om· budsman program. Each employer must givehis employees ~ ""'amell Now legal researchassistance notice of the program by posting in OM or more conspicuous is availablewhen you need it. places. The Report or First Injury will contain a description of lhe services available.The ombudsman willg ive each claimant L E G A L wi1hou1th e necessityor adding• full-time a_.,,,ociutc or wrillen nolice of the assistance available in prosecuting his R esear c h claim. clerk. With ncccss to the Suuc l..3" Library •nd Wcstlaw.we VI. MEDICAL SERVICES BOARD providefa,t nnd cfficaent,ervice . For tlcndlincwork. we A. Composition - Section 43• cun deliver lnfonnution1 0 you via commonearner. The board will have nve members. The director of the Federal Expre<, . or FAX. Department of Industrial Relations (hereinafter referred to as "Director") will appoint these members from a list of nomi· Farnell Leg~lR esearch.oxam in~ the Issue~thorough ly nees submitted by the MedicalAssociation of Alabama.Board brief through quality research. writinguntl analysis. members will stl'\'t fivt•)'ear terms. Initial appointmenlS-..~II Our rntes are S)S.00 p,:r hour, wnh • three hour be staggered so that a new member will be appointed every )'ear. Boardmembers may sen-e two terms. minimum . For Research Assista nee con tact: B. Renumer ation - Section 43• Sarah Kathr yn Far nell Board members will receiveS lOOpe r day or portion thereof spent in the performance of the duties of their office. Board 1 12 Moore Buildin g members will also receive reimbursement for travel expenses. Montgomery, AL 36104 The Departmentof Industrial Relationsis responsiblefor these Cati (205) 27'i-7937 paymenL~.as well as providing necess,1rymeeting and office space. and secretarial and clerical support. C. Operation - Section 43• The board may adopl rules governing its own proceedings. 368 / September 1992 THEALABAMA L"W YER One member is elected by the board to serve as chairman. VII, ADMINISTRATIVE PROVISION The board meets at least quarterly 11ta lime and place which A. Dutl.es of the Director - §25,5-2; §25-5.S; Section 40• the chairman designates. The chairman may call meetings The director is responsiblefor continuing educationor those more frequently if he deems it neces~ary. The board (unc working in the area of workers' compensation, ror filing an tions as a part of the State Department of Industrial Rela annual report. for appointing certain advisorycommittees, and tions. for gathering data appropriate for making decisions required under the act. The director is to find, but not establish, lhe D. Powers and Duties of the Board - Section« • prevailingrate of compensation.The act considersthe prtl'l-ail The board will study. develop and implement such guide ing rate to be self-determining.The act also grants for those lines as are necessary and reasonable pertaining to prO\•ision acting on behalf of the director. immunity from civil liability of medical services and determination of medical necessity. for decisionsmade in good faith, without malice, and b.\Stdon The board will study, design and implement uniform claims then availableinformation. processing forms for physicians to use in rep0rting medical information to employers and insurance companies. The B. l'tus t Funds - Section 48 • board will study, devise and develop (but not implement) a The bill eliminates the Second Injury Trust Fund. It creates uniform system of utilization review and quality assurance for an AdministrativeTrust Fund. The Administrati,-eTrust Fund medical services prOV1dedby physicians.The board will then would be supported by an assessment levied upon insurance recommend this system to the director. The board will carriers. self-insuredemployers. and group funds. The bill pro address and give consideration to those matters which are videsfor the initial assessment not to exceedS4.5 million, and directed to it by the director. The boMd may enter into con also an annual assessment not to exceed SS million.Th,s fund tracts with membersor the health care community in order to would pay for costs of programs under the act. This fund provide the bo.1rdtechnica l expertise in discharging its own would also pay for any claims which are alreadyvested against duties. The board may establish regional committees "lo per the Second Injury Trust Fund. There can be no recovery of form any responsibilitiesspecified by the board and programs lump sum attorney's fees from the AdministrativeTrust Pund. established for the delivery of medkal services under this act". Regional committees will be composed of physicians C. Safety - Section !II• who serve at the pleasure of the board and receive the same The legislature states an intent lo promote safety. The direc immunities granted the board members. The AlabamaAdmin tor is authorized to establish a safety program under which istrative Procedure Act governs implementation of this provi safety engineers would consu lt with indust ry, and advise sion. industry in waysl o make workingco nditions safer. E, Maximum Fee Schedule - Section 45* D. Effective Dates - Section 53 * and Section 55* The board will calculate n maximum fee schedule by adding Most of the act's provisionsbecame effective upon passage 7.5 percent to the preferred provider reimbursement of the and approvalby lhe Governoron May 19. 1992. Certains 11ecif state·s largest health care serviceplan incorporatedunder §10- ic provisionschanging prior law go into effectAugust I, 1992. 4- 100 to §10-4-115.Ala. Code( 1975). The board may submit a These provisionsinclude: lhe new deflniUonof wages;subro, revised initial schedule, but the revision amounts may not gation for \'OCalional and medical expenses;drug testing and e.xceedt he initial amounts by more than 2.5 percent. The Jeg. impairment;misrepresentation of physicalcondition and prior islature intends this schedule of fees to supplant traditional injuries; comparablewage section dealing with \'OC.1tionaldis competilh•e market mechanisms. The employer is not liable ability; setofl provisions: statute of limitations; standard of for medical charges which exceed the maximum fee schedule. proof; and standard of review.The OmbudsmanProgram will As stated above. employees are not liable for compensable go into effectJanuary I, 1993. medicalexpenses. The board may adjust the fees for three rea Regardingapplicability of the new act to existing cases, the sons: (l) to account for the cost of living increases ba~d on Department of Industrial Relationsh.u issued a memorandum U.S. Department of Labor statistics, (2) lo reOectchanges in which states that "lhe law which is in effectat the date of the technology and medical practice, (31to renect adoption of a injury appliesto that injury". tax on medical services. The tax referred to would not be a simple income or sales tax, but a general transaction tax such CONCLUSION as that which was recently proposed before the legislature. Not all legislationis beneficialand certainly this act contains Those paying workers' compensation claims may enter into its share of questionableprovisions. Many of the reforms pro contracts with health care providers at any mutually agreed videdfor in the bill will require an administrati,•eframework In upon price. order to determine exacUyhow they will operate to achievethe F. lmmuuitl es - Section 47 • goals set out in the new statutes. I believelhe success or failure The board and those working for it receive immunity from of these reforms will be determined by the credibility nnd civil liability "arising out of or related to the decisions,opin integrityof the administrativeframework used to initiate them. ions, deliberations, reports. or publications"of the board. To As to the other provisions, only time and appellateco nstruction receive this protection, it must make such decisions (I) in will answer the tough questions raised by the new law. • good raith. (2) without malice, and (3) ba$edupon then avail • This sectionis new and there is no correspondingsec/1011 able information. underprior law. THE ALABAMALAWYER September 1992 / 369 RECENTDECISIONS By DAVTDB . BYRNE,JR. and WILBURG. SILBERMAN ed the defendant, regardless of whether pressing public safetyconcerns related to the Sixth Amendment requires it. the the acquiltee's continuing dangerous jury must stand impartial and indiffer ness." ent lo the extent commanded by the Jurors must be "lif e-qualifi ed" Sixth Amendment." State 's right to mask symp in capital case s Second. the Supreme Court declared toms of mental illness Morgw1 u. {[[inois, Case No. 91-5118 that a juror 1vhowill automaticallyvote R(qginsv. Nevada. Case No. 90-8466 (June 15, 1992). Maya prospectivejuror for the death penalty in every capital (May 18, 1992).Did slate authorities vio in a capital trial who states that he or case should be excused for cause. "Even late a mentally unstable defendant's fair she would automatically vote for death if one such juror is empaneled and the trial rights under the Sixth and rour ;r the defendant were convicted be dis death sentence is imposed. the Stale is teenth amendments when they forced qualified for cause? The Supreme Court disenlitled to execute the sentence." him lo lake anti-psychotic drugs during answered yes by a six-to•U1ree margin. Third, the Court held that a capital a trial in which he was pleading insanity? ln an opinion authored by Justice defendant, upon request. is entitled to In Riggins, a seven-lo-two majority, While, the Court ru led that a capital have "reverse-Witherspoon" questions led by Justice O'Connor. held that the defendant has an absolute right under posed to prospectivej urors in order to forced administration of the anti-psy the Due Process Clause of the rour ensure the right Lo an impartial jury chotic drug, mellaril, to Riggins during teenth Amendment to have questions and to guarantee the removalof exclud his capital murder tria l violated his posed lo potential jurors to determine able jurors. Sixth and Fourteenth amend ments whether they wou Id automatically vote Justice Scaliawrote a strongly worded rights. Justice O'Connor, citing the for the death penally upon convicting dissent. joined by Chief Justice Rehn American Psych iatr ic Association's the defendant of a capital offense. The quist andJustice Thomas which read in description of the drug's side effects, Supreme Court ruled that an Illinois pertinent part: found lhal the medication created the tr ial judge's refusal to perm it such "Not only must mercy be allowed, but strong possibility that Riggins' ability to questioning after a specific request from now only the merciful may be permitted consult with his lawyer, to testify at the defensewas reversible error. lo sit in judgment." trial and to understand the trial pro The Morgan decision is important for ceedings were "impaired." three reasons. ri rst, it reaffirmed the Mental illness a nd th e crim i Once a defendant moves to terminate Sixth Amendment guarantee that a cair nal process treatment , the Court said, due process ital sentencing jury must be a fair and Poucht1v. Louisano, Case No. 90- requires the State to show that treat impartial body. "If a jury is lo be provid· 5844 (May 18, 1992). May a state keep ment is medicallyapp ropriate and, con people previously acquitted of crime by sidering less intrus ive alternatives, reason by insanity confined to men ta I essential to the defendant's safety or tl1e David B. hospitals after they regain their sanity safety of others. Byme , Jr. just because they still might be danger Oavici8. Byrne, Jr Is a 01adua10of 1hOU~ ous to others? The Supreme Court said Speedy trial Sftyof Alabama. v.t-ie1e no in a five-lo-four decision. Doggefl v. UnitedStates, CaseNo. 90- he reco,vedbOth tu. The opinion . authored by Just ice 857 (June 1992). Did the federal govern ul'Klergiradurucaod low degrees Helsamem White. held that slate officials violated ment violate a defendant's constitut ion bc! ol 1ho Man1g"""'Y the defendant's due process rights by al right lo a speedy trial by waiting f:ffllol Rot,ison& keeping him institutionalized after psy more lhan eight years after his indict· chiatrists said he was sane. Some of the menl to try him. even though the delay -· doctors were unwilling to say that he no was caused by negligence and not delib longer posed a threat to himself or oth erate procrasti nation? The Supreme WIibur G. Silberm an ers. Court said yes bi• a five-to-four margin. Wllb1.1rG Si1berman of Justic e O'Connor wrote a separate In an opinion authored by Justice thoS!11r11ngham l1rm of concurring opinion in which she empha Souter, the Court held that Doggett's Gcrdon. Si berrnan \'l!ggins& ct.Ids, sized how narrow she considered Lhe conviction must be overturned. "Where anonoodSamforo Court's holding. Justice O'Connor said bad faith delay would make relief virtu· UoNersityand the that states may be able to detain a person ally automat ic, neither is negligence Un.versifyol Alabama andearned his law who regains sanity "if, unlike the situa automatically tolerable simply because deg,eefrom 1he Un1- tion in lhis case, lhe nature and duration the accused cannot demonstrate exactly ver5,1ry'sSc:hool of Law of detention were tailored to reflect how it has prejudiced him." 370 I September 1992 THEAL<\BAMALAW YER This is a significantdecision because The Alabama appellate courts have ty. bolh pre- and post-petition. which it departs from prior precedent which alreadyruled that peremptorystrikes by security inlerut was to protect not required actual demonstrationof preju defense la\\yers are subject to Batson 's only the $3.000.000ltnt post-petition, dice to the accuud resulting from delay leaching.See l.ernley 11.State, 6 Div. 25 but also the pre,petltion S34,000,000. in all cases. In Doggell. the Supreme (Ala.Crim.App.. January 17, 1992). AL the lime of the filing, the Court held that there comes a time Based upon the substantial body of S34,000,000 pre -petition debt was when dela)• constitutes a denial of jus case law following Batson. Mc:Collum undersecured by approximately tice without the necessity of requiring will require defense counsel, who S24,000,000, but b)• reason of the the defendant lo prove demonstrable excludes a rninorit)· group member flnancing order this pre-petition debl prejudice. from jury service,to be prepared to give became fully secured by all of the an explanation of the strike that it is debtor's assets. The Bankruptcy Court Batson extended to defense nol racially biased, i.e., a race-neutral overruled creditors ' objections to its use of peremptory strikes reason. if the Slate objects. original financing order, appeal was Georgia v. McCollum.Case No. 91-372 taken, re.questfor stay denied, and the (June 18.1992). Do criminal defendants Incompetency to stand trial DistrictCourt. on appeal, then not only violate the Constitution when they use - who has burden? denied the request for a stay bul also race as a basis for excluding. through Medina 11. California, Case No. 91- denied the motion and dismissed the peremptory challenges, prospective 8378 (June18. 1992). Maystates require appeal as moot under §364(e) which jurors from their trials? The Court defendants to ~ar the burden of prO\"· provides that the reversal or modifica answered)'es by a =-to-two margin. ing they are incompetentto stand trial? tion on appeal of granting authoriu In an opinionby Justice Blackmun.the The Supreme Court answered yes in a tion to obtain credit does not affect the Supreme Court held that the Constitu SC\--en-to-twodecision. validity of the lien unless a stay was tion prohibitsa criminal defendantfrom Justice Kennedyreasoned that such a obtained. The Eleventh Circuit. in a engaging in purposefulracial d iscrimina requirement would not 1•iolalea defen disagreement with other circuits, stat· tion in the exerciseof peremptorychal danl"s due process rights. "It is enough ed that the appeal was not moot, that lenges againsl racial minorities. The that a state affords the criminal defen· cross-collaleralization was not autho Court's holding In McCollum further danl on whose behalfa plea of incompe· rized b)•§361\(e), and, further, that the extends the decision in Batson v. l 372 I September 1992 THEALABAMA LA\,\IYER ALABAMA LAWYERS MAKE A CASE FOR THEIR HEALTH INSURANCE PLAN That is the plan, availableexclusively to members of the AlabamaState Bar, their employeesand eligible dependents. This is the plan that has paid millions of dollars to your peers since 1963. Don't take chances! Join the plan with the proven record of service, reliability and stability. Your participation in this program keeps it strong for everyone. EXCELLENTRATES AVAILABLE Policy Age Premium* Premium** Single 35 $32.00 $40.00 Family 35 $83.00 $108.00 Single 55 $65.50 $80.50 Insured & Spouse 55 $114.50 $145.50 • $5000de duclible **$5000d eductible 50/50 Coinsurance to S5000 80/'20 Coinsurance to S5000 100%to $2,000,000 100%to $2,000.000 INSURANCESPECIALISTS, INC. Isl 2970 BrandywineRoad , Suite 135-AL Atlanta, Georgia 30341 Telephone:1-404 -458-8801 1-800-241-7753 Please send information on the Major Medical Policy to: Address ______ City/State/ZIP ______Business Phone______ Birthdate ______ THI, ALABAMA LAWYER September 1992 I 373 SPRING 1992 ADMITTEES l{imberlyHendrick Adams Mary Leslie Hooten Elaine Lubel Raymon Robert Brown Aderholt TimothyA llen Hughes Robin Frank Reynolds William MichaelAdkins Corinne Tatum Hurst Barbara NealRogers-Martin DacoS uzette Auffenorde Glenn Edwin Ireland Daphne Renee Rudicell WilliamDav is Azar MarkAllen Jackson VanessaD iane Rudolph Timothy ReeseBa lducci Glenn Arne Jacobsen Ronald WayneRussell Judy Harrison Barganier Larry Lavonne Johnson John Ceorge Scherf, IV Julia Ann Beasley Antoinette Jones Pamela Ragan Scott BetsyEllen Berman RoyEdward Kadel Sara Ja}•Senesac Cathryn Anne Berrymijn Christopher EdwardKrafchak Eldon Daine Sharpe Anthony Dow Birchfield. Jr. \VilliamRobe rt Lancaster Cleon Allen Shedd Larry Clarence Black MaryAnnette Largin l\enneth Coy Sheets, Jr. BeckyAllen Black Joseph Brady Lewis l\enneth WayneShelton. Jr. Charles Walter Balkeney Angela DeniseLong John Richard Shoemaker. Jr. BradleyWilliam Brian Bodmer Thomas MonroeLovett Leigh BeasleySimmons DavidBrechemin Briggs Cary Cleatice Luke Cwendolyn DenouxSkinner Rita MariaBriles Larry RayMan n AllisonLe igh Smith Carl Stanley Burkhalter DanielChisholm Marson l 374 / September 1992 THE ALABAMALAWYER THEALABAMA I..AWYER September1992 / 375 LAWYERS IN THE FAMILY Eldon Dain• Sharpe (19921•nd Carl DanielWhit .e (19921and J. Shoemaker 119921and Richard BeckyAll•n Blok, ( 1992) and D. Eldon Sharp< (19891 Earnest RayWhite ( 1980) Shoemaker (19831 Owen Blake,Jr. 09 79) (ud1nilfce. fathet) (udmilfee,brother) (odmi/tw, father) (udmittae..hu1band) Corinne Tatum Hunt (19921and Julia Ann s .. ,ley (19921and Jere o,cos. Aulrenorde 11992)and LaOonnaB. Stewart (1992) ,nd James R. Hur,1 11974) ~-8ea,ley (1962) MichaelE. Aufftnordc (l987J W. Ken Stewart (1992) (odmiltee, father•in-low) (admitlee, falht!.r) (odmll ttt . husband) {co-admill <'1s) Carlton T.. I (19921,Frank S. Ttel Jon MitchellFo lmar (1992)and Robert Ademolt ( 1992)and Bobb)' un)' L. Johnson (1992)•nd (1975).Judge Robert J. Teel. Jr. Joel ~t. Folmar (1967) Aderholt (1959) Sandna L. Johnson (1986) 119761alld Rob WIIIL,mD. /\zar (l9921, George 8, Kenneth Shelton. Jr. ( 1992).Ken Elizabeth Rag,dale (1992)and Elaine Lube!Raymo n (1992), Azar (1956),Zack M. A.m ( 1989). neth Shelton. Sr. ( 1962) and Creg lfow>rdEdgar Howard0991) Edward ll. Raymon ( 1973) alld Edwird J. /\zar (1947),Oougt .. Sh,lton (1989) (atf,nillee.fia,,ceJ Glenn H. Lubel (198!11 McElvy(1971), and Richard C. (ad,niltoe1 ll1ther,brc,/her) (admiltee.h11. 376 / September 1992 THEALABAMA LAWYE R TheUse of Deposi~iOJ!Sat Trial and Preseiving Objections: Is An Objection To TheForm Enough? by ROBERTS. 1'1cANNALLY ver the pasl four ,ears a llow~ver. 32!al(3) references other under Rule 26, and provide for a relu number of decisions by circumstances under ,~hich non al ion of the Rules of E,•idence with the Alabama Supreme part)• depositions are admissible as regard to testimony taken subject lo Court have addressed the evidence.They are: objections under Rule 32. Prior lo 1970. madmissibilityof deposition testimony al Federal llule 26(al slated that deposi (a) the witness is dead: trial. Consideredin light of the Alabama tions could be taken for "the purpose of Rules of CivilProcedure. these decisions (bl Lhewitness is more than 100 miles discoveryor for use as evidence in the have an Impact on the common practice from the location of the trial or in a action or for both purposes". Although of objecting solely lo lhc form of a ques slate different than the location of any disllnctlon that existed under lhe tion al deposition. This art icle will the trial (where Lhe wilnesse's ab· Rules w11sdeleted when the Rules were review both the recmt decisionsand the scnce was nol procured by the party amended In 1970. in practice the dis, applicableAlabama Rule5. as well as dis offering the deposition): Linction remained, oflen resulting in cussing the emerging need for more spe (cl the witness is unable lo attend due the parties laking a "discovery deposi cificobjections at the depositionlevel. to age, illness, infirmity or impris tion" initially to be followedby a "trial" onment: depositional a later dale. (di the witness Is a licensed physician The issue was not specifically Admj ss lbillty of depo si tions or dentist (seeabovel: addressed by the AlabamaCourts unlit at tri al Ex Parle Coots, 527 So.2d 1292 (Ala ARCP Rule 32 controls the use of (0 the party offeringthe deposition has 1988), where one of the defendants in a depositions 111court proceedings_While been unable to procure the atten medical malpractice action noticed the Lhisarticle will focus on trial proceed dance of the witness by subpoe~ or deposition of the plainUfrs physician ings, il should be noted that the restric· (g) exceptional circumstances exist cxperl witness. Prior lo questioning. liom placed on the admissibility and making it d~sirable, in the interest but on the record, the defendant use of de1>osltlont estimony apply to of justice and wllh due regard lo the allem pled lo limit lhe scope of the motio11practice as wep ll as trial roceed imporlllnce of presenting lhe tesli· deposition by designating it a ''discov ings. A.~a result. where an objection is mony ora witness orally in open ery" deposition. thereby disallowingits preserved al deposilion. a party may court. LOa llow Lhedep0silion to be use at trial. The plaintiff refused. stat· object al lhe summary Judgment stage used. ing lhat it was his intention lo elicit to the use of inadmissible evidence lo admissible testimony on cross-exami create an issue of facl. nation. After proceedingwith the depo Rule 32 providesthat (I) any deposition Death of " di scovery " sition, the defendant riled a motion may be used as impeachmen t depo sition seeking an order from the Court pro against the dep0nent, and (2) the For many years litigators recognized hibiting the use of lhe deposition at deposition of a party or designated a disltnction between depositions that trial, arguing that ·( Tio permit (the representiUve may be used for any weretaken for the purposesof discovery expert's! testimony in its present form purpose. These two uses of deposi and those taken lo be admitted as evi to be read to the Jury deprives these tion testimony al Lrial are well dence al trial. This distinction is defendants of lhe right lo effective known and commonly utilized, as is encouraged by lhe Rules of Civil Proce cross-examination." Id. al 1293. The the use of deposition testimony of a dure. which specifically allow inquiry trial judge granted the motion, staling doctor or dentist under 32(a)(3). in to mailers that are inadm issible 1h11t had the plaintiff intended to elicit THE ALABAMALAWYER September 1992/ 377 trial testimony from the witness. notice To hold differently would "'impermissi Most prnctilioners are familiar with should have been provided to the oppo bly limit the use of depositions under these rules lo the extent that ( 1) objec sition. Huie 32!a) .. . "(it should be noted that tions as to competency. relevancy and On appeal. the Alabama Supreme Hal/on was a scintilla case). materiality are reserved and (2) objec Court reversed the trial court. rejecting Standing alone the Cootsand Hal/on tions as to the form are waived if not the distinction between discovery and decisions have a significant impact on made at the lime of the deposition.The trial depositions. Initia lly lhe court attorneys attending depositions. While p0tential danger to the attorney attend pointed to the defendant's deposition both decisions arise in the context of ing a deposition lies in the exceptions notice which stated that the deposition medical malpractice litigation, and as contained in both. which specifically was being taken for ''the purpose of dis such may appear narrow in scope. a state that objections are waived if the covery or for use as evidence in th is review of the exceptions allowing the grounds are such that they might have cause, or for both purposes, in ,,ccor use of non-party depositiontest imony at been obviated had the objection been dance with the Alabama Rules of Civil trial demonstrates that. for the most made al the time of deposition. It Procedure". The court then cited Huie part, they encompass circu mstances should also be noted that this waiver 32(a)(3) which allowsthe deposition of a that are not predictable. If the applica applies not only lo objections as to the witness. whether or not a party. to be tion of the exceptionswere made al the form of U,e question. but also lo objec used under specific circumstances (in time that the depositionwas taken there tions concerning: this case, if Lhecourt finds that the wit would be some notice to the participat 1. Competencyof a witness: ness is a physicianor dentist). The court ing attorneys that the deposition could 2. Relevancy: went on to note that both the 6th and be used as trial testimony. However: 3. Materiality: 11th circuit courts of appeal had specifi "The existence of one of the condi 4. The oath or affirmation: cally disallowed the distinction between tions set forth in Rule 32(a)(3) is to be 5. The conduct of the parties: and depositions taken for discoveryand those detern,ined at the time the deposition 6. Errors of an.I/ kind to be used al trial. Responding to the in offeredinto evidence, and if any one As a result, the failure to pose a specific defendant's "lack of effectivecross -exam of those conditions Is satisfied then u,e ination" argument. U,e court suggested objection may serve as a waiver of the deposition is freely admissible and may right to object al trial if the lrial court that interrogatories, not a preliminary be used by any party for any purpose". ''discovery'' deposition, are the proper feels that the defect wascurab le. vehicle for discoveryof opinion testimo Coots. 627 So.2d al 1295. (Emphasis In an attempt to avoid waiver. parties ny in order lo prepare for deposition.I added). As a result. attorneys appearing generally enter into a stipulation which One year later, the Cootsdecision was al a deposition are forced lo assume tracks the language of Rule 32(A) and cited in Ex ParleHal/on. 547 So.2d 450 that with very few exceptions. it is pos (B) with regard lo preserving objections (Ala. 1989).where the trial court grant· sible lhat every deposition will be read other than a.~to U,e form of the ques ed the defendant's motion for summary into evidencea l trial. tion. 1\r,this stipulation may vary with judgment based on the plaintifrs failure different court reporters, It is .idvisable to submit expert testimony against one to obtain a copy of the stipulation being of two treating physicians in a medical Objections at deposition used prior lo entering into a stipulation malpracticecase. The plaintiffappealed, Rule 32(d)(A)and (B) providethat: on the ,·ecord. However, as shown below, the 1\labama courts will not ·pointing to the testimony of an expert "(A) Objections as to the compe· allow the parties to rely on stipulations who, alU,ough he had been retained to tency of a witness or to the compe to escape the exceptions contained in testify against only one defendant. had tence, relevancy. or materiality of 32 (A) and (B). offered opinions against both defendants testimony are not waived by failure in his deposition. On appeal, the court to make them before or during the held that as the plaintiffs expert witness taking of a deposition. unless the Pres erving objections fell within one of the exceptions listed in ground of the objecti on ls one Faced with the expanded potential ARCP32(a)(3), his deposition could be which might have been obviatedor for admissibility of deposition testimo used for any purpose, inc.luding estab removed if presentedat that time: ny under the Coots decision. the lishing a breach of the standard of care. (B) Errors and irregular ities preservation of objections al the lime occurring at the oral examination of depositi on becomes critica l. The in the manner of taking the deposi issue then becomes what type of objec Roberts. tion, in the form of the questions tions must be made specifica lly in McAn na lly or answers, in the oath 1,r affirma order to avoid waiver under the excep AobenS. McAnl'\aUV an ess,oo.arew11h rile tion, or in the conduct of the par tions contained in Rule 32(A and (B). W.obdo!lrm ol Lyons ties. and errors of any kind which Citing the "usual stipulation" discussed Ptpes& Coo"K. p C • IS a might be obviated . re moved or above, many litigators have relied gfadu.atd d AutumUni ve1,1tyand 1neUrwers,, cured if promptly presented, are almost exclusively on objections "to the ty ol AlabamaSchool of waived unless seasonable objection form" of a question lo preserve objec Low thereto is made at U1etaking of the tions. deposition." In Mcl h'u foa.\ Vhen your p.trruog.-Js Mt highly qu.Ji6,,d. you 're, mote prodUCII\... Thebes, W".)' ID l,o surt )'CIUrlcgal a.si!,anis art a,nor.g11,e bes, is ~ ~di.mm"-nc•uni&dl.tgl~(CI.J\~ for16 )'t.ln. Cu\ hasl,,m tht~ IWionaJICSI cJ m:dima, l'arpir.Jrgals. U dcmonwarese,cpenist and• con,inuing commnmm1 io legal ,ducation. TheCl.A c. TIIE ALABAMALAWYER SeptemberJ 9921379 Objection " abu s e" Interrogatingl awyer asks for a fur to do so by lhe questioning pal'ly. in All litigators have been present at a ther explanati on, the objecting light of McKeluy, such a refusal will depositionwhen an allorneyused objec party maystale only one or more of provideadd itional grounds for waiveras tions as an opportunityto editorialize or the following: the policyor that decision seems to be coach the deponent using "speaking ambiguous the opportunity for cure allowing the objections".Given the necessityto pose argumentative admissibilityof evidenceal all. specific objections in order to avoid askedand answered waiver.'"here do proper objectionsend assumesa fact not in evidence Conc lu si on and improperobjections begm? compound In light of the potential adm1ssib1li· Onefederal magistrate issued a st.and· confusingor unintelligible ty of most depositionsal trial and lhe Jng order for use where speakingobjec h)'J)Othelicalquestion misused potential waiver or objections if the tions becamean issue. Note that here. leading objection could arguably be curative, the court places the burden of obtain· misquotesa witnessOT exhibit new rules have emerged for those who ing a specificobjection on the question narrati-.-eanswer requested intend to protect their right lo object ing party: 0\-tt ly broador general at tTial lo the admissibilit>• or deposi 4. Objectloru Unless the interrogat tion testimony. Under Coots, It can ing law}·errequests further explana "The objecting lawyershall make no not be assumed that only the deposi tion, no lawyer may object to a further objectionunless the interrogat t ions of the partlu and medical question in any manner except to ing lawyerso requests. " experts will be admissible (although say "l object." and to state the fol ll is also noteworthythat the list of this will certainly remain the norm). lowingadditional items: objections allowed does not include There is no longer any doubt that a. Ru.le Number The number of l'ed materiality,relevancy or competencyas every deposition must serve the cross eral Rule of Civil Procedure or of discussed in Rule32 (d). purposes of discovery and potential Evidence,or citation to a statute; This new posture is not enti rely trial testimony. b. Privilege The name and sourceof a defensive. Another common scenario With regard to objections.lhe parties privilege; finds one attorney objecting to the may stipulate to speclric conduct dur c. Form The words "to the form (){ form, but refusing Lo identify the basis ing the laking of a deposition. but the question." If and ot nly if he for his or her objection when requested where lhal conduct Is contrary to the Rules the courts will opt for the specif• ic language of the Rule. No longer will "objections to the form of the question" serve as a panacea. AlthoughMcKcluy Don't Risk A Valuation arose in a depositionwhere the parties had stipulated that all objections except as lo the form of leading ques Penalty. Introduce t ions were ostensibly reserved. It Is conceivable that an objection lo the Your Clients to Business form alone would be deemed insuffi cient by the court to put the opposing Valuation Services. party on notice or the specific error John H. DavisIll. PhD,MAl,SRPA,ASA, presidenrofBusiness which might be "obaiated. removedor Valuation ServicesInc ., is the only design.iredASA BusinessVal cured". It will be in the judge·s discre uation appraiser in Alabama. BusinessValuation Sen,ices provides tion to make a determination as to whether an objection was sufficientso consultationby chehour, appraisal repons and experrrestimony as to put the opposing party on notice in casesof: of a defect. using as a guideline the D Esracep lanning D Bankruptcyproceedings broad language of Rule 32 and lht D Estate settlcmenc D Mergersor acquisitions McKelv.11decision. As such. to avoid D Marital dissolutions D Buy-sellagree mems waiver, it will be necessary to state a D Dissidentsrockholder suits specific objeclaon in terms that, al a 0 Recapitalizations minimum. direct the opposition Lothe 0 Employeesroc k ownership defect, allowing an opportunity for plans cure. • Contact John H. Davis Ill, PhD, MAI, SRPA. ASA 4 Ofllce Park Circle • Suite 305 • Binningharn. Alabama 35223 Footnote s P.O. Box 530733 • Birmingham, Alabama 35253 t For a more lhOfouon dlacu1tlon ol ltio coo,, dec1,11)(1ano 1t• 1mpac1 aec S1ova 11ni11ot1eao·, (205) 870-1026 NOie, 'Ex Pono Coo1' Dcolh ol tho OIIC(JYO!Y Oopos,uon·ii \ Alotwtma Ht1vo Oooct1n 1on11on, Gono Aw,y>41 /\ 11 L Rev 206 ( 11M19) 380I September 1992 Tl IE AI..AOAMALAWYER HELPING0rHERS HELPSUs ALL Judge LearnedHand once said, "If we are to keep our democracy,there must be one commandment: Thou shalt not rationjustice. " s attorneys, we recognize often different from the day-to-day dedication to making access to justice a this "commandment" of practice of law. As has been said by reality for all citizens in their commu equality under Lhe law as attorneys who regularly include such nities, regardless of ability to pay: II a cornerstone of our judi work in the ir prac tice. pro bono is cial system. We understand that all citi "good for the professional soul," and in Paul W. Brock, Mobile zens have rights and liberties under la1v a time of increasing career dissatisfac and that the ability of persons to secure tion among attorneys, it may be a way Jonathan Alexander Brown, Vernon such rights and liberties, or to resolve back to the essence of what being a M.Ji ll Ganus, Mobile conflicts, depends upon access to the lawyeran d a professional is all about. legal system. Too often. persons cannot If you, your firm or your local bar C. William Gill. Montgomery afford legal representation in matters association is interested in sponsoring a vital to their well-be ing and, conse pro bono program for civil cases in your WillieJu lius Munlley, Jr., Mobile quently, suffer violations of their rights. area, contact Melinda Waters, director Roy M. Johnson, Ill, Columbiana It is part of our nature as attorneys to of the Alabama State Bar Volunteer want to remedy such wrongs and solve Lawyers Program, at (205) 269-1515 in l JAMES L EE TEACUE County Bar Association. and was one of the very few lawyersfrom AlabamaC\'tr to be inducted Into the Inter Whereas. James Lee Teague was national Academyof Trial l.:iwyus. Ht practiced law in born in Birmingham. Alabama on Gadsden. Alabama for 4!1 )'ears. maintaining an active February15, 1948where he received practice until his death. his early education. He receivedhi~ Georgewas no stranger to lhe people of Alabama.H e was bachelor's degree in accounting in known for his aggressivel eadership and adherence to deep 1971, master's degree In vocallonal and paramountconvictions when he served in the Alabama rehabilitation counseling In 1972 Legislature.Ceorge serve d two terms 111lhe I louse of Rep· and juris doctor degree In 1980from resentalives from EtowahCounty and also served a, Speak the Universityof Alabam,1.I l e was a er Pro Tem. lloor leader and chair of the I louse Waysand member of the Benchand Bar Legal MeansCommittee. The press rtcognlud his qualitieswhen Honor Society and lhe Farrah Law Society. Jim was with they voted him the outstanding orator of the state Legisla· the State VocationalRehabilitation Service from 1972-n . turt, outstanding member of the l. 382 / September J 992 Tl IE ALABAMALAWYER • M.E.M.O.R.I.A.L.S • INCRAMBEASLEY JAMESA. PLYI.AR Birmingham Birmingham ,tdmitted:1930 Admilled: l 953 Dl!'d:June 29, 1992 Died:May 20, 1992 CIIRISTOPIIE111-IA RTWELLDAVIS CHARLESA. POEl,I.NIT7.,JR. Montgomery Florence Admilled: 1931 AdmUted:193.1 Di~J:March l&, 1992 Died:Jul>· 20, 1992 JA.'1£5EDWARD HART, JR. ROI' LEE SMITH Brew/an Phenix City Admitled:1970 Admitted: 1924 Died:June 24. 1992 Died:June ll, 1992 l'•'RANI(JACl(SON MARTIN RommrFllANl( SPLITT Gadsden Fort,1~ 11ers,Florida tit/milled: 1927 Admilled: 1976 Died:April 30. 1992 Died:July 5. 1992 ALFREDM. NAFF JAMESLEE TE.\CUE Birmingham Nr,bi/1' Admitted:J 950 ,1dmilled:1980 Dil!d:June 22. 1992 Died:May 18, 1992 PLEASE HELP Us ... We have no way of knowing when one of our members is deceased unless we are notified.Do not wait for someone else to do it; if you know of the death of one of our members, pleasel et us know. Tl IE ALI\HAMALAWYJ-:ll September 19921383 CLASSIFIED NOTICES RATES: Members: 2 free listings per bar member per calendar year EXCEPTfor "position wanted" or "position offered" hsllngs - $35 per 1nseruonof 50 words or less, S.50 per add1llonal word; Nonmembers: $35 per insertion of 50 words or less. S.50 per addi tional word , Classified copy and paymeni must be received according to the foliow1ng publishing schedule : September '92 issu e-deadline July 31, 1992: November '92 Issu e-de adline September 30, 1992. No deadline extens,ons wfll be made Send classlhed copy and payment. payable 10 TheAlabama Lawyer, to: Alabama l.8wyer Classifieds, c/o Margaret Murphy. PO Box 4156. Montgomery. Alabama 36101 FOR SALE cept 1400 workstation with 20 MB Legal Services Plan. Phone H/D : 650K ; 5 1/4" floppy disc (205) 461- 7526. • For Sale: The Lawbook drive and Node kil - keyboard Exchange , Ltd. buys and sells and monitor. Two Concept 1100 • For Sale: Otflce furniture, sup all major lawbooks, slate and fed Medialess workstations with key plies and equ ipment for sale , eral, nationwide. For all your law boards and monitors. Lanier LS· Including desks. chairs , confer book needs. phone 1-800 -422- 08 desktop laser printer Two ence table, copier . fax machine, 6686 . Maste rCard. VISA and Lanier L0-40 (letter quality) desk telephones. and dictation equip American Express accepted . top printers (one printer has track ment. Lawbooks: Code of Alaba feeder) . Harris Lanie r DOS and ma, Southern Reporter. Supreme • For Sale: Save 50 percent on perspective word processing soft Court Reporter, and many more. your lawbooks. Call National Law ware . $3,000 or besl offer . Avai lable for viewing at 639 Resource, America's largest law Schmitt & Harper, 213 Bar Martha Street, Montgom book dealer Huge Inventories . nett Boulevard , Tallassee, ery, Alabama , Monday-Fri Low prices. Excellenl quality. Your Alabama 36078 . Phone day after 5 p.m. Call (205) satisfaction absolutely guaran (205) 283-6855 . 834-9636 and leave a mes teed. Also, call America's largest sage. lawbook dealer when you want to • For Sale: Georgia Appeals and sell your unneeded books. Call Georgia Reports. Good for begin • For Sale: The Estate or Kenneth for your free , no-obligation ning practice . Best offer. Send Cooper. attorney at law, ls accepl quotes, 1 · 800-279- 7799. inquiries to Meacham & Flow ing bids on a complete law library National Law Resource . ers, P.O . Box 9031 , Colum consisting of approximately 639 bus, Georgia 31908. Phone volumes. The law library includes • For Sale: Model Rules of Profes (706) 576-4064. a complete up-to-date set or Code sional Conduct. Personal copies of Alabama as revised in 1975, available for $5 (Includes post • For Sale: West's Alabama consisting of 25 volumes. as well age) Mail check to P.O. Box Reporter for Southern 2nd , vol as an up-to-date set of Alabama 671, Montgomery , Alabama umes 439 -557 . This set is 39 Reporters So. 2d consisting of 99 36101 . Pre-payment requ,red . hardbound books. Phone (205) volumes. The law library also con 877-7792. tains 515 additional volumes from • For Sale: William S. Hein & sets such as Shepard's, ALRs and Co. , Inc. , serving the legal com • For Sale: Murphy's WIii Clauses Modern Legal Forms. Ail Interest munity for over 60 years. We buy, by Joseph Hawley Murphy. Pub ed parties should write ihe law sell, appraise all lawbooks. Send lished by Matthew Bender . Cur office at Zoom Box 1000, Bay want lists to: FAX (716) 883- rently updated - Cost $610 new. Minette , Alabama 36507. 8100 or call 1-800-828 - wm sell for $100. Volumes 1, 2. Phone (205) 937-7412 . 7571. 2A, 3. Llndey Separation Agree ments and Antenuptial Contracts • For Sale: Complete sets with all • For Sale: Used Harris Lanier by Alexander Llndey Published current supplements of ALA, ALR word processing system consist by Matthew Bender . Currently 2d , ALR 3d, ALA 4th, ALA 5th, ing ol : Concept 4000 Network updated - cos t $460 new, will ALA Fed, ALA Digests - $2,000, Server with 256K RAM: 20 MB sell for $75. Volumes 1. 2, 3. Con must pick up in Gadsden. Phone H/D; 650K 5 1/4" disc drive Con- tact Alice Hancock, UAW (205) 547-6801. 384 / September1992 THE ALABAMALAWYER SERVICES St . Pet e r sb urg , Florida . men1al law to develop firm's envi Phone (813) 579-805 4. FAX ronmental law department. Prefer • Service: Traffic engineer. con 573-1333 extensive experience in compli sultant/expetl w,tness Graduate, ance and obtaining perrruts under registered. professiooat engineer. • Service: Insurance, expert wit RCRA and CERCLA and assisting F(l(ty years· expenence. Highway ness Siv e r In sur a nc e Man• chents with envrronmentataspects and city roadway design , traffic agement Consultants (since or busmess transactions . Strong control devices. city zoning Wnte 1970) Available to consult and/or exper ience . academic qualifica or call for resume, fees Jack W. furnish expert tes1lmony in areas tions and chenl development skl1ls Cha mbli ss , 421 Bellehurst or property/casualty Insurance , required Confidential reply Drive, Montgomery, Alaba· employee benellts and business to P .O. Box 1986, Birm ma 36109. Phon e (205) 272· lire Insurance. Staff Include JDs ingham , Alab a ma 35201 • 2353. with Insurance Indus try expe ri 1986, Attention : Hiring ence Due lo firm's core-consult· Attorney . • Service: Legal research help . Ing practice with co rporate and Experienced attorney, member of government clients. we are partic • Po siti on Off e red : Birmingham Alabama State Bar since 1977 ularly quallhed 1n matters involv bankruptcy firm Is seeking 10 Access to state law library WEST· ing coverage 1n1erpreta11on,insu r establish offices In Montgomery LAW available Prompt deadllne ance industry customs and prac and Mobile Our hrm would Uke to searches. Sarah Kathryn Far · tices , prolessionat liability , bad find sole practitioners in these nell, 112 Moore Building , failh. rates and premiums, cootro cities who are Interested In asso Montgomery , Alabama vened propeny claims, pollution, ciating with us. Send resume to 36104 . Phone (2 0 5 ) 277 · claims-made Issues, and insurer Offi ce Mana ger, 15 s. 20th 7937. No represenuwon 1smade Insolvency Initial discussion and Street, Suite 1325, Birming that the quality of the legal ser Impressions orrered without ham , Alabama 35233 . vices to be performed 1s greater charge Call Edward w. then the quality of legal services Siver , CPCU, CLU or Jim • Pos ition Off e red · Attorney jobs. performed oy olher lawyers. Marshall , JD , CPCU, ARM at National and Federal Employment (813) 577 -2780 . Report. Highly regarded monthly • Service: Examlnallon of ques detailed listing of attorney and tioned documents Handwriting, • Service : Cemhed Forenslc Doc law-related jobs with lhe U.S. Gov typewriting and related exam1na ument Examiner Chief documen1 ernment , other public/private lions . lnternauonally court-quali examiner, Alabama Department of employers In Washington , D.C .• fied expert wnness Diplomate , Forensic Sciences . re111edBS .• throughout lhe U.S and abroad American Board of Forensic Doc M S graduate , university-based 500-600new Jobs each issue. $34 ument Examiners Member Amer res 1den1 sc hoo l m document for three months , $58 for six rcan Society of Questioned Docu exammauon. Pubhslled nationally months Federal Reports, ment Examiners. the International and ln1ernahonally Eighteen 1010 Vermont Ave nue , NW, Assoc1a11onfor ldent1f1cauon,the years' trial experience sta1e/!eder 1408-AB , Washington, D.C. Bnt1sh Forensic Science Society al courts of Alabama . Forgery . 20005 . Pho ne (202) 393. and tho Na11onalAssociauon of altera11onsand document authen 33 11 . VISA and MasterCard Criminal Defense Lawyers . ticity examinations. Criminal and accepted. • Retired Chief Document Examin non-criminal rnaHers American er, USA Cf Labo ratories . Hans Academy of Forensic Sciences. Mayer Gldlon , 2 18 Merry American Board of Forensic Doc mont Drive , Augusta , Geor ument E)(amlners,American Soci gia 30907. Phone (706 1 860- ety of Oueslioned Document Richard Wilson 4267 . Examiners Lamar Miller, 3325 Lorna Ro a d , #2-316, & Associates • Servi c e: HCAI w1ff evaluate your P.O. Box 360999, Birming cases gratis for merit and causa ham , Alabama 35236 .,0999. Registered tion . Clini cal reps will come to Phone (205) 988-4158. Professional your office grabs If your case has no merit or 11causa1ton Is poor, we Court Reporters will also provide a free written POSITIONS OFFERED 17 Mildred Street report. Slate affidavits super. Momgomory, Alabama 36104 rushed. Please see display ad on • Position Offered: Major Alaba page 364 Health Care Audi• ma law firm seeks lawyer with 264-6433 tor s, Inc. , P.O . Box 2200 7 , extensive experience In environ- Tl it: AI.ABt\MA1..AWYEll Se11lember 1992/ 385 Westlaw.Think ofit as yourown personal newsstand. Today'snews and lc'swhauhcsc timescall for whenyo u TheWashln_gton Post . The Information.l l can need 10examine every aspector your CQl)grcsslonalI nronuaclon Service. be the edge you need client's si1uatlon. The.-Tlmcs of London. And several 1owin. Includingbusi ness trends. out of court moreso urces. many available only EnterDIALOG• sculcmcms.and what your client's on WESTl.AW. on WESTLAI~ competitionls doing. Noothrronllnc researchserviceom:rs your access Withover 3S fulltext newspapers you morenew s and Information. to the most onllne. from the ~on Globeand Callnow . 1-800-32&-'3352. And set up comprehensivenetwork or news and f!tiladelphlaInquirer to the ~UamiHerald your own personal nCWSSland. informationavallablc today. and 1-RS..AngtlesThncs. Wi1hConsumer Yourown newsstand.On your desktop. Reports. M~rqulsWh o's Who. Moreways to win o 1992 Wotl PubilJhlng Co 2.93ga-317,-02 IB2 • 346 I Hr, GP.orgeHcCor•lck l)ent, Ill Supreee Court of AlabaM,I 445 Dexter Ave, Hontgo11eryAl. 36130