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September 1995 Volume56, Number 6 Putlllhlld MWtl Wntlt • ,-r (lf'9 June 4SUe 4 a Oil ON THE COVER: ... __ Dy .... Alaboma-· Bat, PO Ba,c•t50,Mca1- .Allillma 36101.. t56 On the cover areAlabama State Bar 1995-96Presid ent John Arthur Owensand his Pnonll33')261M5t5 wife. Dorothy Terry Owens. of Tuscaloosa. The Owens are pictured in front of the RObe'1 A. HuffAker ····°*'& Edl1or President's Mansionat u,eUniversity or Alabama.T he n.insion was built in 1841: on Suuo ShltocltO.Peola - ...... _ •.,.,. Vioe-Chalr& April 4, 1865, It was snved from the names of Croxton·sRaiders by President Garland's Assoc:fale Ednor RleharoF All41in...... VIICe-Chalr. Finanoe wife. Union soldiers had alreadyset fire in the mansion when she arrived. She not only Susan H Andl ff .,,...... SUlN Liaison & backed themdown , she also required them lo help put out the flames they had started. Communications Director "11,is mansionepitomizes Tuscaloosa :s rich history, culture, charm and •grit."' say,;Owens . Margo1oi tdurphy...... Sln lt UAIIOn& Managing Editor Bo4Ud o, Ed110N1 - Photobu Crosbv ThomleyPhotography, Tuscaloo sa W-.mJ Unciit~ l~ • JolephB. Maya.Jr_ Bltmll'IOfW!t• Am L HalllfQfd, Jr Mol'IIQOINIY• Allin T Aogin.. ~ . ... ,,,.. G s,..,.,..Montgom,e,y • INSIDE THIS ISSUE: Aootttlw ~ J, .. MolllQOll•"t . o.tlol"1!hN'tltfSfflifl &mil ... ~ u.y).. ·~ 8'"1¥9'1ffl. JoM 0- ~ ~" . liiWt4~Ml'.lbM: · Roolr1.Stl The Alabam.a State Sar 1995-96 Committees ······-····-·····-····-··----· ·---278 .. St!ll9\ HldW9t • 0..... Olwlrlna,.8,111111... • (iaip. tlaCoctllW\.. 441ft • Ullil ~ &IM'afill*U • Hotl 0-.k ~· w,d-iffl • ~LMlbllt.,_.. Dedka.UonS~cch. Judge FmikM. Johnson llislorical Mnrktr -··-·····-·····-····-286 omw, • ._, 1 ~. ..,,, .wa.mo..s-c...... ,_·~A.~ ...... • ..ICIIWwl en.. T.-..... • fl ...... O'DIII.M.,i@;OIZO) • Ln:IIG Unaulhoriud Practice of Law fil&lpCt.1!11.:•• WI • ~ DrilMI.Moillgc.l«JI • Ydorl9 J ~· L1•1'i •M OcaNldDliWll,,,Jlf_Mobil: • ByL. BrucrAbles ·················-····--····-···············-································· ...... ·-····- ····-·-·288 ...,o_...... _ .k__ _ Cllyw,, • Han w,i.- A Qo,dari MmdQu.l•r Sex-Based Wage Oiscriminalion: Recovery Under the Equal PayAct, 9owd Of COmmk..ion.ra Title VII. or Both Ual.on ...a.m...l A Avmor.. Jr 81rmngn,m
lly Judge Otbra11 . Cold$tcon...... 294 _,, •. pl'8$1j(j.erc Wvren8°"""" l.lgncl-.11~ Pruklonl•olod Kids' Chance Golf Scramble a Success ...... 303 W•1m-·aw-· D, MIiion,E~r..n ~C'Sitlel'II Kellh O Hormln, Monlgome,y, ...... ,,.,$ect 9liH)I Bo&td 0, Commk•ion.,,. The Nuts and Bolts or Civil Appeals TII Cin:l.tll,fl MIik ENI, lkllttr • 2n.i C'""-1, JoM A. Ncr1o11. ByOcbor, ,n AlleySm ith ,nd Rhonda PittsChambers ...... 304 I.AJY*1W• ~ Cl,Q,11,LymRobet9onJodclcwl, Clo•;,on • CU,0,.. Q111.Aq:.h N Hoc:a.~ • &mQtcull, JoM Pcwq,<;:lmlr, II -~·"'°""'-"-Ho • 9ih CIQ,it. ,,_.. No.•J I. ___Watw P ~. ,_ n.:a,. President's Pngc...... - •...... 264 CLE Opportunlhes...... 296 •1W\OOA.Mu, ,•. Ill. ~ • 11\c::IID.*.JahnS.. ~. Profile···································-··· ···-· ····-.26i Younglawyers' S«hon •••••.•....- ....- .....311 IJIICIM'••CllaA W N ~A,...,.,... • IC.-Olo.i&.Alca Oasc:,phnaryReport ...... ·-····-····.312 No. t.. S..U.., H. ,..,.. .IIW9'W" • 1~ Cl:ia;ut..Ptacili Hc:>, Ex
PRESIDENT'SPAGE
A TRIBUTETO OUR BAR
am honored, proud, humbled and somewhat awed impressed by their dedicationand knowledgeof U1eirjobs. Reg lo haveassumed officeas the I 19th president of the gie told me once that it was his hiring philosophyto surround AlabamaState Bar. There is a list of past presidents himselfwith people smarter than he was. I will not comment on on page 248 of the Ala/JamaBar Directory of U1e that but whatever the philosophywas - it worked. D Through this effort we made 278 new appointments to U1e Alabama State Bar and J commend it to your perusal. If I began listing 1lllypast presidents becauseof their outstanding accom committees and task forces and continued 548 Individuals' plishments I would err by omitting others with equal or greater tenure on these committees and task forces. This means that accomplishments. It is a tribute lo our bar to have been served we have 826 members of our slate bar working on these 39 by these outstanding past presidents over our U6-year history committees and task forces. The frustrating part was U1at624 (that there are US presidents for the 116 members submitted preference cards and years is because two-1883 -1884 and it was not possible to appoint all of these 1981-1982-did not complete their terms to the committees without expanding and a second individual served part of beyond the size we felt workable. We did those years). e,'J)andseveral committees and task forces From my own county of Tuscaloosa - especially U1eAlternative Dispute Reso there have been eight prior presidents. I lution Committee (the most popular have done some research into the history choice) to try and accommodate more of each. but space does not permit more members who volunteered lo serve. It is U1ana recitation of their names. Most of highly gratifying to see U1eextent of the these family n1lll1eswill be familiarto any interest that so many of our lawyers have one who has practiced law in Tuscaloosa in volunteeringto work within U1ebar. for very long at all: Archibald Bruce Overone -U1irdof our lawyers( and lawyers McEachin, 1891-1892; Andrew Coleman nationally)are solo practitioners. According Hargrove, 1892-1893; J. Manly Foster, to the An1ericanBar Association48 percent 1918-1919; Bernard Harwood, 1929-1930; of all lawyers in the United States are in John 0. McQueen,Sr., 1932-1933;Devon firms of five or fewer lawyers. Of lawyers I<. Jones , 1941-1942; Walter P. Cewin, J ohn A , Ow en s ove_rage 39 the figure in firms of five or 1958-1959: and Hugh W. Roberts. Jr .. fewer rises lo 70 percent of U1etotal. In our 1978-1979. All are deceased except Hugh own barwe definea '·small firm" as seven or Roberts. Hugh enjoys retirement as a gen- fewer and roughly 70 percent of our mem Ueman farmer in Tuscaloosa County. his mind as keen and his bers are in such firms. Consequently , President Holmes wit as sharp 11Jlddry as ever. formed a task force on solo and small firm practitioners under Tuscaloosahas a strong bar and apparently always has. I am U1e able leadership of Paul A. Brantley of Montgomery. I have thankful for and proud of the support I receivedfrom its mem continued this task force with Paul as its chair and appointed bers when I decided to seek this office,most especiallythe sup MaroldA lbritton of Andalusia as its vice-chair. I have charged p0 11:of my current firm, Owens& Carver,and my former firm, it with two new responsibilities. The first is to review the Phelps,Owens, Jenkins, Gibson& Fowler. highly successful North Carolina and Georgia management In May, l had the enjoyable but sometimes frustrating expe assist11Jlceprogram , g.ither information on 0U1ersimilar pro rience of making the appointments to the bar's 39 committees grams and report early in the bar year on wheU1ersuch a pro and task forces. I worked closelywith Ed Patterson. Diane Wei· gram is needed and feasible in Alabamaand, if so. to work to don, and many other individuals on the stale bar staff in this implement the same. North Carolina and Georgia have effort I am constantly amazed at the quality of the staff Reggie Hamner and Keith Norman have assembled. I am extremely Continuedon page 266
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33 Lenox Pointe NE Atlanta, GA 30324-3 172 EST. 1959 404·814·0232 800-241-7753 INSURANCESPECIALISTS, INC. FAX: 404-814-0782 President 's Pag e generally helping both the lawyer and the unhappy client. Conlinutdfrom pafl" 264 Some programs are mandatory, some are voluntary. I have charged the task force with the primary responsibility of employed individuals who are knowledgeable management studying such programs. making a recommendation as to consultants on the state bar staff. They are a,,ailableal reason whether such a program is neededand feasible in Alabamaand able costs to go into solo officesand small firms. assist thtm if so, which program, and if appl'O\.'ed to implement lhe pro with all aspcct.sof management(computerization, case manage gram. As a secondary, but equally important function, I have ment. Limekeeping, scheduling, billing. accounting, docketing, asked lhis task force to study the Consumer Assislance Pro time management, file systems. etc., etc.). They are also avail gram of the Mississippill3r. This program (as are fee dispute able for telephone advice,provide helpful publ icationsand in(or• resolution programs) is aimed at resolving differencesbetween mationall designedlo assisLsolo and small firm practitioners in clients and attorneys before they reach the stage of a grievance serving their clients more efr.cientlya nd more profitablyand, or a lawsuit. A staff person answers a consumer hotline wiU1in al the same lime, lessening the possibility o( malpractice the Mississippi Bar and alle111pts to reconcile conflicts between claims and grlewnces. Mal Albritton has undertaken Lo serve attorneys and clients in a fast. informal and helpful way. The as head of Lhis subdivisionof lhe Laskforce. MississippiBar is quite pleased with their results. The fee dis Towardthe sameend (helping lawyersbet ter se,w their clients pute resolution task force will study this and other similar and therll$tlve$),many state and local bars have formedmentor programs, make a recommendation as to whether such is ing programs with varying structures. These function roughly needed and feasible in Alabama. and, if so. the form. If like lhe ideaof a big brother or big sister in fraternitiesand sor~ approved.they "~II implement the program. itles.They seek to place an older moreexperienced lawyer with ObviouslyI havea bias toward these programs in that I think a Younglawyer for advice.counseling. etc., i.e. mentoring.I ha~ that, most probably,they are all needed.I hope that they are all given the same task force the job of studyingvarious programs feasibleand if so that we can gel someor all of them enacted and around the country,determine if the sameis neededand feasible up and running during the coming }Ur. in our state, if so, which form. If the decisionis to implementthe Byfocusing on these new programsI do not want to ignore the same, then they will work toward that end. Allen R. Stoner of importantongoing work of lhe many other committeesand task Montgomeryha.~ \IO lunleered to head this aspecl of Lhework of forces,an d I plan to use future articles to spotlight these effort~. the Lask force. BrooxH olmes sounded a Learnof unity lo reunite the bar and I have cre11leda new task force on fee dispute resolution. to try and minimize the fractionalizallon we've experienced. I Rodney Max of Birmingham and Woody Sanderson of will continue to work hard at this effort. Huntsville have agreed to co-chair this task force. Presently I lookforward t o my yearof serviceto your bar as its president. many grievances nre filed with the AlabamaState Bar which I am already gratified by the encouragement and support that are automaticallyrejected because they are not in fact "grlev• I have receivedfrom the members of the board of bar commis ances" at all but a fee dispute. Membersof lhe public who are sioners, chairs and co-chairsof the committeesand Laskfo rces. unhappy with their attorney over fees don't necessarily recog the bar staff,and many,many other lawyersand judges through nize the distinction between unethical conduct which gi\u out the stale. I am happyto report that not one la,"),er or judge rise to a grievance and a conflict over the amount of a fee. has failed to return my call madeas president-electof the Alaba Consequently. many states have established some form of ma State Bar and I am confident that this will continue to be mechanism lo handle such disputes within the bar therefore the caseas president. r------, CHILD SUPPORT I Name: ______I Sofh,vareve r. 2.0 1 Finn:------' Address: CS*A L from ErisTcchnolo5ics. In c. I ------1 City· S 1· _ Zip: __ . __ New Window s version! I 1 MSDOS(\" l.16) q1y:_ SS9.9S+SS.9S slh Toial. $_ _ Loaded with new featu res! Write for information 1 Windows c,, 2.00) q1y:_ Si49.00+S8.9S slh Toti.I: s_ _ MS-DOS v. 1.16 also av:ulable : Ck:_ MO:_ V-153;_ MasterCard·_ E.,pin:s: _/_ Gr Comphant \\ith Alabama Supreme Coun order of 1S1gn.11ure · 9/28193 I · ------1 Card#: OlSltStu 3\S_ SY._ ar Requires IBM-compatible c-0mi?uterwith MSDOS 3. 1 or Int.er (Windows version requires Windo" s 3. 1) : Mait 10 : ~ Eri~Tcchnolo&ic..1,, Inc. : 3928 Montclair Rd., Suite 134, B,nninghom, AL 35213 111'S upports MP l..'\Scrjct O (or later) compatible lnscr 1 printers & Epson compatible dot matm: printers L---1 (205) 822-5289--- -- (o------rders) 906-8672 (tec h- s---upport-~) 1 266 /SEPTl•:MBER1995 TlIE ALABAMALAWYER PROFILE WarrenBricken Lightfoot and on behalf of various bar groups, and in recognition for Pursua11tto the AlabamaState Bar's roles gouemi11gth e elec those efforts received the AlabamaBar lnstitute's I 988 Walter tion of preslde11t-elcct,the followi11g biographical sketch Is P. Cewin Awardfor Outstanding Service to Bench and Bar in provided of W11n·e11Bricken lightfoot. Lightfoot was the sole Continuing Legal Education. In 1994, he became the rirst pres qmtlifyi11gc1111ditfato for the positio11of preside11t-electof the ident of the Birmingham Bar l'oundation. and currently is a AlabamaState Bar for the 1995-96 f£m 1, a11dbucame pro sl member of the Board of Trustees of the Alabama Law School de11t-elect 011July 22, 1995. Foundation. He is a Fellowof the AmericanCollege of Trial Lawyersand orn on August 21, 1938. Warnn Lightfoot grew has been a member of its state committee since 1992. He also up in L~me, Alabama,where he graduated from is an Advocateof the American Board or Trial Advocates,is a Lu\'emt I ligh Schoolin 1956.He the~r attend· member of the International Associationof DefenseCounsel, ed TheCitadel in Charleston,South Carolina.from and has been listed in /Jest lawyers ln America since 1983. m Lightfoot chaired the AdvisoryCommit 1956-1958, received his undergraduate degree from the Universit>•of Alabamain lee lo the United States District Court for 1960. and graduated from the University the Northern District of Alabama from of Alabama School of Law in 1964. A 1988-1990and presently is a member of member of Phi Beta Kappaand Jasons, he the 11th Circuit's Law)'ersAdvisory Co m· also served as president of Omicron Delta mitlee. He served as co-chair of the pro Kap11a;md Phi Oelln Phi legal fraternity gram committee for the 1)t h Circu it and as leading articles edito r of The Judicial Confercnccsor l994-1995. Alabama law Re11iew.Prom 1960 to Lightfoot was a char ter member of 1962, Lightfootwas on active duty in the LeadershipBirmingham (1983-1984)and United Slates Army. An infantry officer s~rvedon its faculty In 1986.A past presi and paratrooper, he served as a company dent of the BirminghamKiwanis Club. be commanderfrom 1961-1962. also served In 1991 as presidenl of the Followinggraduation from law school Civic Club Foundation. which ownsthe in 1964, Lightfoot practiced law with Harbert Center in downtown Birming Bradley,Arant, Rose & Whilefor 25 years, ham. Lightfoot was an elder at Indepen until January 15, I 990. when he and seven dent Presbyterian Church from 1972-74 other partners formtd Lightfoot,Franklin and 1978-79. and has frequenlly been an Wa,,. en Brlc ken Lightfoot & White, now a 28-lawyerlitigation firm adult Sunday School teacher there during in Birmingham. the last 20 years. He is currently serving Lightfoot was elected president of the as chalrman of lndependent's Board of Young Lawyers' Section of the Birmingham Bar in 1969, Trustees, and he was a trustee of lhe Prcsbyterinn Home for served on the clly bar's Executive Committee from .1970 lo Children In Talladega from 1987 to 1993. 1972. and was elected president of the Birmingham Bar Associ Lightfoot has been married since 1963lo the former Robbie ation in 1991.He was Jefferson County's sole bar commission• Cox of Birmingham. and lhey have two children: a daughter, er from 1979 lo 1985, was a founding member of the MCLE A.~hley.who is a branch manager for AmSouth Bank in Birm Commission in 1982 and served on the Alabama State Bar ingh.,m. and a son, Warren, Jr., who practice.swith Maynard, Executive Committee in 1979. During the first six years of Cooper & Cale in Birminghamand whose wife, Valerie,is an MCLE,from 1982 to 1988, he gave over 45 presentations to investment consultant with HlghlandAssociates. •
Notice Alabama Rules of Evidence The Alabama Supreme Gourton July 19, 1995, issued an ordoradopting Alabama RUiesof EYlde:nco. Thoserules bocome etlechVeJan. uary1 . 1996. Thoyate 10 be published in a So. 2d Advance Sheol dllled on Of aboul August 10, 1995. Theya lso Sl>OUldbe avallable on 1he LEXIS and Wesllnw selVlcesa nd on the Stale Law Library'sALALINK bulletin board service. George EarlSmith Reporter of Ooclalons Alabama Appellate Courts
THE ALABAMALAWYER SEPTEMB8R1995 I 267 EXECUTIVE DIRECTOR'S REPORT
THE SIX MILLIO N DOLLARGIFT
ith the new bar year undenvay, I decidedto deter In addition to board meetings,many commissioners serve on mine the value of lime contributed by bar mem disciplinary panelsU1at hear chargeswhic h are pending against bers participating in various state bar acti,•ilies. attorneys. Thesepanels decide what, if any, violationhas occurred Not only do the regulatoryand licensingfu nctions as wellas the appropriatepunishment for a violation of the rules mof the bar requ ire strong volunteersupport, but so do the bar's of professionalco nduct There are a total of fived isciplinary pan other programsthat benefitthe professionand the public. els which consist of four commission members and one F'orthe 1995-96 bar year. some 900 lawyerswill be serving layperson.On an average,each panel has ten hearings during on the bar's 39 committees and task forces. I estimate U1at the year. Including travel time and hearing time, I estimate through committee and task forcework, lawyerswill contribute thal each hearing accounts for approximately sevenhours of a approximately18,000 hours by attending meetings. traveling panel member's time, or a total of 1,400 hours for the 20 bar to meetings, and carrying out committee commissionerswho serve on the discipli· or task force activities. Interestingly,th is nary panels. total reflectsonly an averagecont ribution The other area that requires an additional of two hours per month for ten months commitmentof time by commission,nem (September through June), or 20 hours bers is the DisciplinaryCom mission. The per volunteer. I believe that this average Disciplinary Commission is composed of contribution figure takes into account five commission members who review that all committees and task forces will approximately 700 grievances a year to not meet the same number of times as determine if there are sufficientgrounds well as the fact that not all committeeor to prefer chargesagainst the namedattorney. task force members are always able to During the course of a year, a commission attend meetings or work on a particular memberwill generally averagespending 14 project. What is especially gratifying hours a month or 140 hours a year,devo ted about committee and task force service is solely to Disciplinary Commissionm atters. the facl that more Lhan700 bar members F'or the entire DisciplinaryComm ission, volw1teered this year and there were only this represents840 hours of service. 200 vacantpositions. The final area is the hours contributed The l .600 lawyers participating in the Ke ith B, Norman by those lawyerswho serve as membersof Volunteer LawyersProgram (VLP) who the board of bar examiners.There are 12 have volunteered lo provide 20 hours of e.xamining membersand one non-examin pro bono legalwork will account for approximately32 ,000 ser ing chairperson who conducts the affairsof the bar examiners. vice hours statewide.Although I assumedthat all 1,600would The bar e.xaminersnot only grade the written examinations contribute 20 hours, not all will receivea referraland some will that are given in Pebruaryand July of each year, they also have contribute more than the 20-hour minimum handling their Loprepare the questionsand modelanswers. Bar exa miners serve assignedpro bono ca.~es. I am sure the VLPwill continueto grow four-yearterms. With a lmost 850 peoplesitting for the February with even more lawyers joining the ranks of other VLP and July examinations each ~-ear,and an averageof 15 minutes lawyers. spent by an examinergradi ng each exam (this includestime that The lawyerswho havebeen electedas officersof the state bar was spent in the initial preparationof drawingthe question and and those electedfrom the state's 40 judicialcircuits to serveon model answer),each examiner contributes 207 hours per year the board of commissionerswill be contributing their time in for total of2,697 hours for the entire board. severalcapacities. Por example, as a memberof the commission. (seec hart on next page) each of the 60 members and officerswill attend at least eighl board meetings during the year. Counting travel time, atten Assumingthat the average hourly rate in Alabama is $100, dance lime and preparation time for handling matters at each these servicehours represent a contribution by lawyersin Lhis meeting,each commissionmember will average approximate.ly state of $5,973,7001Wh ile I realize the service hour totals are a ten hours per meeting and devotea total of 80 hours per year "best guess", it is probably a figurethat is too lowrather than too to commission business for a total of 4,800 hours of service. high because I took steps to be very conservativein my "gues· This does not include the additionaltime required of the state timating'' the time which lawyersac tually spend in performing bar president in carryingout the responsibilities of that office. the activities in the six nan1edareas of service. Indeed, a host 268 I SEPTEMBER1995 THEALABAMA LAWYE R of other state bar related groups did not figure in the calcula To recap: tion, including service lhrough the bar's 19 sections and the AlabamaLaw f'oundation. While some people may take issue 1. Committeesand Task f'orces 18,000hours of service with my figures, one thing is for certain: the figure of 2. VolunteerLawyers Program 32,000 hours of service $6,000.000 represents only a portion of lhe altruistic service which lawyers in Alabama perform. Examine the rosters of 3. Board o f Bar Commissioners 4,800hours of service everycharitable organization or worthwhile cause in this state 4. DisciplinaryPanels 1.400hours of service and J believethat you will find more members of the legal pro fession offering their time and talent than any 0U1er profes 5. DisciplinaryCommission 840 hours of service sion. 1 do not U1inkthis is an accident. I believei t represents a 6. Boardof Bar Examiners 2,697 hours of service commitment to service and professionalism by lawyers. lf, as AbrahamLincoln observed many years ago, a lawyer's time is total servicehours 59, 737 his stock and lrade, I would suggest U1ata lawyer'sservice is a gill of time that comes from a limited inventory. •
A FOND FAREWELL ith no smallsense of sadness,we sayfarewell to our colleaguesBob Norris and MelindaWaters. Since W1988. Bobserved as generalcounsel, whi le Melinda directedlhe VolunteerLawyers Progran1 since its inception in 1991.Both have served the bar admirably,leaving behind an indelibleimpression and shoes that will be difficultto fill. Bob has returned to his hometownof Birminghamto enter private practice. Melindais the new executive director of LegalServices Corporat ion of Alabama. Bobjoined lhe bar staff followinghis retirement from the UnitedSrates Air Force where he had achievedthe rank of major general and served as judge advocate general. Upon assuming the generalcounsel's position, Bob faced a backlog of grievancespending before the local grievancecommittees Melindaand MichaelWaters and at the Center for Professional Responsibility. To ------address this problem he implemented a number of admin- istrative measures and staff assignment changes to make the disciplinary process more streamlined and efficient. Moreover,under his guidancesignificant s trideswere made in the areas of professional responsibility and discipline by virtue of the adoption of Lhenew Rulesof ProfessionalCon duct, AlabamaStandards for ImposingLawyer Discipl ine and the Rules of DisciplinaryProcedure which also included provisionsfor lay membersto serveon disciplinarypanels. G Melindabecame director of the VLP at a time when a statewide pro bono network was but a vision. She took what was basically an idea and transformedit into a viable ~ and functioning network of attorneys that now numbers 1,600 and is growing. Melindaaccomp lished this remark- able feat in a relativelyshort period of time and has created Marthaand BobNo"is a program that uses U1e talents of private laWYersto meet ------the civil legalneeds of many of Alabama'spoor citizens. I personallythank Boband Melinda for their dedication to the AlabamaState Bar. The staff. commis.sionersand officersof the bar will miss lhem and we wish them wellin their newendeavors . •
THE ALABAMALAWYER SEPTEMBER1995 / 269 ABOUT MEMBERS, AMONGFIRMS
C. Brandon Sellers, rn announces lhe Alabama.The mailing address is P.O.Box ABOUT MEMBERS relocationof his officeto 415E. Commen:e 1195,Anniston 36202. Phone (205)235- Street, Greenville,Alabama 36037 . The 3903. Twala Grant Wallace announces the mailingaddress ls P.O.Box 432, Greenville Vicki A. Bell. formerly of Stephens, relocation of her office lo 2000 First 36037. Phone (334) 382-6907. Avenue. North, Suite 215, Brown Marx Millirons. Harrison & Williams, announces l'ower, llirminghom. Alabama 35203. George E. Jones. 111, former deput)• the opening of her officeat 200 W. Court Phone (205)322-5 077. attorney geMral or Alabama (1993-94) Square, Suite 752, Huntsville, Alabama 35801. Phone (205) 53:l-4491. William Erle Colley, formerly or Charles and assistant attorney general of Alabama (]988-J993), onnounces the opening of A. McGee & Associates. announces the Betsy E. Berman announces the relo his officeal the Bell Building, 207 Mont opening of his ofnce at 202 4th Street. cation of her omceto 699 Gallatin Street, SW, Fort Payne, Alabama 35967. The gomery Street, Suite 922, Montgomery, Suite C-1, lluntsville. Alabama 35801. Alabama36 104. Phone (334) 265-3822. mailing address ls P.O. Box 1045, Fort Phone (205)539-020 I. Payne35967. Phone (205)845-8101. Mark A. Sanderson announces the Jo hn C. Scherf, IV announces the DttAnn R. Truelo,,ehas been appoint opening of his officeat 402 S. CedarStreet, opening of his office al 2122 Pirst ed district judge of Sumter Counly. The Florence.Alabama. The mailing address Avenue. Norlh, Birmingham. Alabama mailing addressis P.O.Box 9, Livingston, is P.O. Box311, Florence 35630.Phone 35203. Phone (205)324-999 L (2.05)760-8759. Alabama35470. Phone (205)652-7364 . John Eric Bumum, formerlyof Rogers Russcll T. Ouraski announcesthe open 'Ftmolhy K. CoriC)•announces lhe open & Alexander.announces lhe opening of ing of his omce at I038 WoodleyR oad, ing of his omce at 600 Suntr usVFirsl his offlce.a l 14414 CouTt Street, Moul Montgo mery. Alabama. The mailing National B,illdlng, 201 S. Court Slreet, ton, Alabama 35650. Phone (205) 974- address is 377 Avon Road, Montgomery Florence, Alabama35630. Phone (205) 7087. 36109. Phone (334)24 4-2058. 760-0048. Russell C. Balch announces lhe open Romaine S. Scou. Ill announces Lhe AMONG FIRMS Ing of his ornct at 2101 ExecutiveP ark opening of his office at 500 Park Place Drive, Opelika, Alabama 3660I. Phone Tower.200 I Park Place, North. Birming Kalherlne McKenzie Thomson has been (33.4)7 45-3933. ham,A lab.lma35203. The mailingaddress promoted to counsel at American Gene.r Anna ue ClatUnaannounces the for is P.O. Box370166, Birmingham35237- at Life and Accident Insurance Company. mation of Mtdiatlon Solutions. Inc. Her 0166. Phone (205) 322-2500. omces are located in Nashville, Ten lawpractice will continueunder lhe name PaulaI . Cobia,formerly with Bolt, Isom. nessee. Thom50n is a 1991 admittee to lhe AlabamaSmte Bar. of Anna Let Clatllna.The mailingaddress Jackson & Bailey, announces the open is P.O. Box 59486, Birmingham, Alaba ing of her officeM Security Bank Build Thomas L Readannounces his appoint ma 35259. Phone (205)328-9111. ing. 10W. lllh Street.Suite 20, Anniston, ment to assislllntgeneral counsel for the
McLAIN APPOINTEDTO THE POSITION OF GENERALCO UNSEL J. Anthony McLainhas been appoint School of Law in 1977.lJpon gradua ed to the position of general counsel tion from lawschool, he went to work for the Alabama State Bar. Tony with the AlabamaAttorney Ceneral's replaces General Robert W. Norris. Officeas an assistant attorney gener who served as general counsel for al. After two years with the AC's se,,,enyears and retiredAugust 1. 1995. office,he lefi to enter private practice Tony has sen'td as assistant general in Montgomeryas a partner in a two counse l since October 1988. He man firm. Afier nine years in private received his undergraduate degree practice, Tony began his work with from Auburn Universityin 1974 and lhe st.ale bar. Tony is married and has his lnw degree from Cumberland two children. • T ony McLain
270 I SEPTEMBERl995 THE ALABAMA LAWYER Federal Bureau of Prisons. The mailing ate. Offices are located at I 07 Second Court Street, Florence, Alabama35630. address is Officeof General Counsel, 320 Avenue,NE, Gordo, Alabama35466. The Phone (205) 767-7411. First Street, NW, Washington,DC 20534. mailing address is P.O. Box 223, Gordo R. Michael Raiford announces that Phone (202)307-3872. Read is a 1988ad 35466. Phone (205) 364-7183. Richard L. Chancey has joined the firm mittee of the Alabama State Bar. McRight, Jackson, Dorman, Myrick& as an associate. Officesare located at 502 Thomas D. Sa mford, Ill , Auburn Moore announces that Bradley R. Byrne 14th Street, Phenix City, Alabama University's general counsel and prima has become a partner and William T. 36867. Phone (334) 297-6478. ry legal advisor since 1961, retired June McGowin,TV and Randall Scott Hetrick M. Douglas Chee announces the dis 30, 1995. Samford is a 1961 admittee to have become associates . Offices are solution of Chee & Giddens and that C. the AlabamaState Bar. located al the Pirst Alabama Bank Build Rod Giddens' new mailing address is Harold F. Herring, Richard E. Dick, ing, 11th Floor, 106 SL.J>rancis StreeL. P.O. Box 1066, Talladega, Alabama Michael K. Wisner and H. Carey Walker, Mobile,A labama. The mailing address is 35160. ill announce the formation of Herring, P.O. Box 2846, Mobile 36652. Phone Hogan, Smith & Alspaugh announces (334) 432-3444. Dick, Wisner & Walker. Charles P. that David R. Donaldson and David J. Helms, Jr. has become an associate. Gonce, Young & Westbrook an Guin, both formerly with Ritchie & Offices are located at 100 Washington nounces a name change to Gonc e, Rediker, have joined the firm as mem Street, Suite 200, Huntsville, Alabama Young & Sibley. Melissa A. Moreau and bers. Offices are located at 2323 2nd 35801. Phone (205) 533-1445 and (205) David A. Tomlinson have become asso Avenue, North, Birmingham. Alabama 534-4343. ciates. Offices are located at 109 N. 35203. Phone (205)324-5635 . McCowen & McCowen announces that Aubrey J. Holloway,Jr. has become a member. Offices are located at Cobb Building.924 Montclair Road,Su ite 116, Birmingham. Alabama 35213. Phone (205) 595-8209. Tingle, Watson & Bates announces that Edwin O. Rogers and Mark T. Wag goner have become associated with the firm. Offices are located at 900 Park At Mis. THE ,\LABAMALAWYER SEPTEMBER 1995 / 271 ~lcDonnell Dyer anno un ces that are located al 1600 SouthTrust Tower, Third Street, Jacksonv ilie Beach, Florida Rosemary Clark has become an associ Birmi ngham, Alabama 35203-3204. 32250. Phone (904) 246-9994. Bankston ate . Offices are located in Memphis, Phone (205)328-0480. is a 1988 admittee to the AlabamaState Nashville and Knoxville, Tenness ee. Bar. Clark is a 1990 admittee lo the Alabama Walker, Hill, Adams, Umbach, Mead State Bar. ows & Walton announces that Robbie Charles M. Thompson and A. James Alexander Hyde, formerly or Dominick. Carson anno unce lh e format ion of Gillion, Brooks & Hamby announces Pletcher. Yielding, Wood & Lloyd, has Thompson & Carson. Officesare located the relocation of its offices lo 618 A7.alea become an associate. Officesare located at 2838 Culver Road, Mountain Brook Road, Mobile, Alabama36609 . The mail at 205 S. 9th Slreet. Opelika, Alabama. Village, Birmingham. 1\labama 35223. ing address is P.O. Box 161629, Mobile The mail ing address is P.O. Drawer Phone (205)870-0570 . 36616. Phone (334) 661-4118. 2069, Opelika 36803-2069. Phone (334) Johnston , Barton, Proctor, Swedlaw 745-6466. Foley & Mahmoodannounces a name & Naff announces that Bradley C. May change lo Foley, Smith & Mahmood Langston, Frazer, Sweet & Freese hew and W. Jonathan Daniel have and that Robert Sellers Smith has announces that Richard A. Freese has become associates. Officesare located at become a member. Officesare located at joined as a principal in the Birmingham 2900 AmSoulh/Harbert Pla1.a,B irming 101 Northside Square, Huntsville, Alaba office. Offices are located in Jackson, ham, Alabama 35203-2618.Phone (205) ma 35801. Phone (205) 536,8877. Mississippiand Birmingham. Alabama. 458-9400. Smithennan & Smitherman announces Lightfoot. Franklin, White & Lucas Chris S. Chri st announces tha t the relocation of their offices to 2029 announces lhat William R. Lucas, Jr. Marona Posey has joined the firm as an 2nd Avenue, North, Birmingham, Alaba has resigned rrom the firm to become associate. Officesare located at 205 20th ma 35203. Phone (205)322-0012 . executive vice-president and general Street. NorU1,Suite 710, Birmingham. counsel of Birmingham Steel Corpora· Alabama.Phone (205) 251-2700. Berkowitz, Lefkovits, Isom & Kushn lion. The firm's new name will be Light Robert W. Hensley, Jr. and A. Patrick er announces that A. Lee Martin, Jr. has foot, Franklin & White. Ray, Ill announce the format ion of become a member and that Judy P. Hensley & Ray. Offices are located in Hamer has become an associate. Offices Veal & Associates announces thal Sandra Gooding Marsh has become a Columbianaand Birmingham, Alabama. partner and the firm 's name has Daniel R. Klasing and Edward B. changed to Veal & Marsh. Offices are Strong, formerly of Janecky, Newell. localed al 2001 Park Place Tower. Suite Potts, Hare & Wells, announce the for. 525. Birmingham, Alabama. mation of Strong & Klasing. Officesare located at 1314 Alford Avenue, Suite Charle s McKinney & Associates J 01, Birmingham, Alabama 35226. announces that MarvaOwens-James has Phone (205) 823-9393. become an associate. Orftcesare located in Dayton and Middletown, Ohio. Killion & Vollmer announces that Owens-Jamesis a 1992 admittee to the Tracy S. Guice has become an associate. AlabamaState Bar. Offices are locale d al 2513 Dauphin Street, Mobile, Alabama 36606. The George H. Wakefield.Jr. and Freder mailing address is P.O. Box 8527. Mobile ick T. Enslen announce the relocation 36608. Phone (334) 476-5900. of lheir offices to 6825 Halcyon Park Drive, Montgomery, Alabama 36117. Teresa N. Ryder, formerly of Dick & Phone (334) 244-7333. Wisner.. has joined lhe firm of Bradley P. Ryder as of counsel.Offices are locat Borden Martin Ray, Raymond E. ed at 100 Jefferson Street, Suite 300, Ward, Thomas W. Powe. Jr ., Borden Huntsville, Alabama35801. The mailing Martin Ray, Jr. , and Richard R, Newton address is P.O. Box 18095, Huntsville announce the formation of Ray, Oliver :35804. Phone (205) 534-3288. & Ward. Laura K. Gregory has joined as a member. Offices are located at 2020 Jeffrey A. Cramer announces that University Boulevard, Tuscaloosa,Alaba Michael J. Schofield and John A. Unz ma 35401. Phone (205) 345-5564. icker have become partners. and lhe firm will practice under the name or Buschman, Ahern & Persons Cramer, Schofield, Unzicker & Wade. announces that Jeffrey R. Bankston has Offices are located in Pensacola and become a partner. The firm's new name Jacksonville,l'lorida. BoU,Schofie ld and is Bus chman , Ahern , Persons & Unzicker are 1993 admillee~ to the Bankston. Officesare localed at 2215 S. AlabamaState Bar. • 272 / SEPTEMBER1995 THEAI..A 13AMALAWYE R BUILDINGALABAMA'S COURTHOUSES By S,1MUElA. RUMORE,JR. he Alabama lawyer issue on January 27 and January 28, 1995. It under budget.The entire facilitycontains of July 1993 contained a reported that this facilityis the only one 581,000-square-feet. feature on the Mobile of its kind in the United Stales becausea Designersfor the project were Houston County Courthouse. Al county government, a city government, architects Harry Colemon, who grew up the time that article was and a court system are all located under in Mobile,and Mario Bolullo in associa written, a new courthouse one roof. tion with Mobilearchitect Frederick C. was being built. ll is now The Plaza consistsof a nine-storyCourts Woods. Instead of one general contrac completed and has opened for use. Building,and a ten-story Administration tor, the project had a construction man The Thursday, January 26, 1995 edition Building connected by a 50.000-square agement team consisling of a joint of the Mobile PressRegister contained a foot pub Iic atrium. Construction costs venture between the Hardin Construc specia l insert celebrating the grand had been estimated at $58 million , but tion Croup, Inc. of Atlanta and U,e Has opening of the MobileGovernment Plaza u,e final cost was approximately$500,000 ton Construction Company of Mobile. 274 / SEPTEMBER1995 Tl IE ALABAMAl.AWY8R , • The author and his family comments. This building is quite differ ent from traditional buildings and invites interpretation. They hope that their stale-of-the-art structure will be considered "modem" well into the next Bids were broken down into 31separate well as the probate court. The Courts century. bid cat~gories. Building has courtrooms on levels two, The author acknowledges the assis The atrium between the two buildings four. six and eight. Support offices are tance of Barbara Rhodes, executive S • BO)'dF'. Campbell o( the Montgomery Lion. Mewas a member of the Alabama • Montgomery attorney Steve Class firm of Campbell Warner & McBryar Disciplinary Commission from 1989 to roth was elected presiden t of th e has been appointed chair of lhe Immi 1992 and is a member o( the Supreme Alabama Criminal Defense Lawyers gration Law Committee in the General Court Commission on Dispute Resolu Association,a st;itewideorgan ization of Practice Section of the American Bar tion. He is with the firm of Robison & lawyersr epresenting citizens accused of Association. Campbell was appointed to Belser. criminal offenses. during LheACDLA's this position for a period of one year recent annual meeting. Classroth is the begin ning at Lhe concl usion of the • The Alabama Defense Lawyers principle in the firm of Glassrot h & annual meeting of the ABAin Chicago Association (ADLA) has been recog Associatesand has been in practice for in August 1995, and ending al the con nized as one of Lhe outstanding derense nearly 16 years. clusion of the annual meeting of the bar groups in the United States by lhe Other elected omcers for 1995-96are ABAin Orlando in August1996 . 19,500-member Defense Research Insti Everette Price of Brewton, president • James R. "Spud" Seale of Mont tute (DR!). the nation's largest associa elect; Rick Sandefer of Birmingham, gomery was recently elected a Fellow of tion of civil lit.igation defense lawyers. vice-president : Dennis Knizley of the American Bar Foundation. The Fel ORI recently honored ADLAwith its Mobile, secretary; Tommy Nallor Birm lows is an honoraryo rganization of attor Exceptional Performance Award, citing ingham, treasurer; and MaryTurner of neys. judges and law teachers whose "the association's dedicated efforts to Tuscaloosa, vice -presi denVpublic professional. public and private careers advance the goals and objectiveso f the defender position. Chosen as the orga have demonstrated outstanding dedica organized defense trial bar, including nization's area vice-presidents are John tion lo the welfare of their communities preservation of the civil jury and the Mays, Decatur ; J ohn Lentine and and to the highest principles of the legal promotion or fairness and balance in the Richard Jaffee, Birmingham; Richard profession. Seale is a past president of civil justice system ." Accepting the Keith, Montgo mery; Mike Dasinger, the Alabama State Bar and the Southern award was immediate past President Robertsda le; Domingo Soto, Mobile; Conference of Bar Presidents. Me is on the Richard P. Manley, senior partner in the and Jim Parkman, Dothan. The area board of directors o( the Alabama Defense Demopolis finn of Manley, Traeger & vice-p resi dents serve as liaisons Lawyers Association, and is currently Perry. ADLAhas some 800-plus mem between U1e organization and the mem president of the Alabama Law f'ounda- bers throughout Alabama. bership. • It's BackTo TheBeach In '96 f!ll~~ ~~ ~~ &~!te~ UALMEEtiNG July 24-27, 1996 PerdidoBeach mResort • ~ · Orange~i~~ Beach,• Alabama 276 / Sl~PTEMBER 1995 THEALA BAMALA WYER Reporton 1995 MidyearMeeting of the ABAHouse of Delegates By H Thomas Wells,Jr., Birmingham, AlabamaState Delegate he 1995Midyear Meeti ng or the American BarAsso· ing each midyear and annual ABAMeeti ng. The House is made ciation was held February 9-14, 1995, in Miami, up of delegates electedby state and local bar associations, based Florida. upon lawyerpopulation s ("BarAssoc iation Delegates");delegates The 56th MidyearM eeting of the association electedby the ABAm embers resident in each state (''State Del markedII several important milestones. Thirty years ago, under egates"); delegates of the various sections and divisions of the the leadership of then-ABAP resident LewisF . Powell, the House ABA; delegatesfrom affiliated organizations; and assembly del of Delegates first endorsed the concept of federal funding to egates electedat each annual meeting of the association by those support the provisionof legal servicesto the poor. At this meet registered members who attend that meeting. ing, the issue was the topic or much discussionas considera The House acts on proposals ("Rep0rts with Recommenda tion of funding for the Legal ServicesCorporatio n was being tions") brought before it by state and local bar associations, by considered by Congress. Alsoof note, attendees bid farewell to ABAsections, divisions , commissions and committees, by indi retiring executive director David J. A. Hayes, Jr. at a reception vidual delegates and by affiliated organizations. These propos held Sunday evening that commemoratedhis 30 years or ser als are often vigorously contested with extensive debate and vice to the ABA. considerable noor amendment. Resolutions approved by lhe A subject of great discussion at this meeting was the recent House become ABApo licy and may become the subject or ABA ly releaseddraft report of the SpecialCo mmittee on Governance. lobbyingeffor ts in Congress and in other forums. The Special Committee has been engagedin an in-depth review At the 1995 Midyear Meeting, the agenda of the House of of the governancest ructures and processesor the ABAfor the Delegatescontained more than 43 items with debate and vot last two years. The draft releasedin mid-Januarywas the sub ing on the various resolutions taking place on Monday, F'ebru ject of an open hearing conducted on Sunday afternoon at the ary 13, and Tuesday, February 14. Ab rief summary of the items Midyear Meetingw hich was heavily attended.Th e committee's on which action was taken at the meeting has been provided final report and recommendations will likely be the subject or to the state bar, or is available from my office, phone (205) much debate al the association's annual meeting in August in 254-1000. • Chicago when the proposals will be considered in the form of amendments to the association's Constitution, Bylawsa nd House Rules of Procedure by the Assembly and the House of Delegates. The House convenedo n Monday morning, February 13,with 1995DIRECTORIES ARE IN! Martha W. Barnett of Florida taking her placeas the first woman ever elected as chair or the House or Delegates. The Nominating Committee convenedon Tuesday morning Members - $25 each and determined to nominate N. Lee Cooper of Birmingham as Non-Members - $40 each president-elect for a term beginning at the conclusion of the 1996 annual meeting. Donna C. Willard-Jones or Anchorage, Alaska was nominatedas secretary-elect, and John A. Krsul, Jr. MAIL CHECK TO : or Detroit, Michigan was nominated as treasurer-elect, both to Alabama Bar Directories assume those positions at the conclusion of the 1995 Annual P.O. Box 4 156 Meeting. I had the distinct pleasure or placing Lee's name in nomination with the Nominating Committee, and of second Montgomery, Al 36101 ing John Krsul's nomination. Include street address - we ship by UPS! The House of Delegates is the legislative policy-making body Orders must be pre-paid of the AmericanB ar Association which meets for two daysd ur- THE ALAJ31\MA LAWYER SEPTEMBER 1995/ 277 1995-96 COMMITTEES COMMITTlsRON ACCESS 1'0 1..ECAL Stiff Lial50nand Mnn1gingt,;Jitor: M•rsl» II Tlmb THE A1.AllAMJ\l.,\ WYER SEPTEM8Ell l995 / 281 * Lt,x-,-.-Ncxu computerrr.un1nct n ~u Mtt'nJ~ ..t br .",SB mcmhcn * J•vFoon· bc'll r 282 t SEPTEMBERl 995 THEALABAMA lAIVYER * ~ llr:iJk,·cl B.mttnd>azn""' t'CC>ofincod F,Ulln,ll/11 "'tho ,olJc.tASB m ...... :e ~...... , {;;if " - rhe Pmrc,,.,,onTn.1k For« ~Member,; ~{Women In ,[r.,.k l'<>recllro3k. .(.tathi;* r e.,or~ c- ·u11\lny'sC.1 111111lltet rnsr. * FC',nurcd ""rca,.er,. C.,vcm11r Fob )111110>, Jr. * MikoFr, .. m•n Clclt),uld C.rcu RirchorPr<:$ *~ianhaU Tunbrdalc, A"'~nl o1 M.,,, rcc:1J'I, em for 1-.,..,.o( >tn·1rc10 rht, A DRf"\'9"m _ firj r * BronxHur rnc..,p,1$.1e., on Wh•,dnnil ~ THEA LABAMALAWYER SEP'l'~MBER1995 / 283 OPINIONSOF THE GENERALCOUNSEL By ROBERTW. NORR IS, general coun.sel UESTJON: The Disciplinary Commission determined in U1at matter U1at "J am doing this for a clarification of one of lhc the determination reached therein might be different if lhe prior decisionssubmitted in lhe letter particularly Supreme Court or Alabama adopted the Model Rules of Profes R0-90.57. I would especiallyli ke lo address Issue sional Conduct. On January 1, 1991, lhe supreme court's order m One and Two in lhe opinion with regard lo the adopting the Model Rules effecli\'el)'established lhe new stan principleof 'vicariousdisqualification.' I notice that under lhese dard by which vicarious disqualificationof governmental and rulings the Cedeof ProfessionalResponsibility disqualified privateatto rneyswould be determined. subsequent associate attorneys from participation in any cause Rule l.ll(c)( t). Alabama Rules or Professional Conducl. in which lhe new associate had previously participated. states as follows: I also note the decision In Issue 'J\..-os lates lhal if this decision "Rule 1.11 SuccessiveGo vernment and Private Employ was revisited under lhe 'new' rules ll would probably be addressed ment in a 'different fashion.' (cl Except as law may otherwise expressly permit, a lawyer Reviewing the new rules, particularly Rule l. ll (c)(l ), which servingas a public officeror employeeshall not: is footnoted lo the fact that 'Paragraph (Cl does not disqualify olher lawyersin the agency with which the lawyer in question (1) Participate in a matter in which the lawyerparticipated has becomeassociated.' personallyand subslanballywhile in private p111cti.ce or Prob:lblymore simplystated, the issues would be: nongovernmental employment,unless under applicable I. Are district attorneys and assistant district attorneys law no one is, or by lawful delegation may be, autho· disqualified from participation in pending criminal rized to act in the lawyer's stead in the matter." cases by the principle of vicarious disqualification when The pertinent provision of the Comment states: the newly employed assistant has participated in the pending criminal case as a defense attorney? "Paragraph (c) does not disqualify other lawyers In the agency with which the lawyer in question has becomeasso 2. Are district attorneys and assistant district attorneys ciated." disqualified from participation in pending criminal casesby the principle of vicarious disqualificationwhen Further, Hazard and Hodes. in their treatise, The law of lhe newlyemployed assistant has participatedin a pend· lawgering, slate: ing criminal matter through previous representation of "When a lawyer moves into the gowmment from pri\oate a co-conspirator? practice, he is still bound by Rules 1.6 and 1.9. He may nol 3. Are district attorneys and a.'ISistant district attorneys dis divulgea ny information about a former client and may not qualined from participation in pending criminal cases by oppose the client in a mnlter in which he had previously Lhe principle of vicarious disqui11iOcation when the newly represented him. or in a matter substantiallyr elated U1ere employedass istant has participatedi n a pending criminal to. This bar can be lifted only by U,e consent of the former case through previous representation of an alleged co client. corapiratorwho is a husbandor "ife of the subjectcase? " On the olher hand, imputed disqualificationof the gov ernment - treating ii asa new 'firm' under Rule 1.10- is NSWER.QUESTION ONE: inappropriate. If Rule 1.JO(a) were lo apply to the govern. District allorneys and assistant district attorneys menl. lhe government would either haveto forego certain are not vicariouslydisqualified pursuan t to Rule 1.11, enforcement matters.or hire lawyerswho had never been D AlabamaRul es of Professional Conduct. when a newly in privatep ractice,o r who had represented only clients who employed assistant has participated in criminal cases as a defense would never be adverse to the governmental unit hiring the attorney so long as the "new" attorney is adequately "screened" lawyer. from participation in the governmental activity. The only practical eswpe from this dilemma is to screen ANSWER. QUESTIONTI\10: the affected lawyer from participation in government activ Same as AnswerOne, above. ity lhat is adverse to his former clients and related to \\'Ork that he performed for them: Rule l.ll(c )(l) so directs." ANSWER, QUESTIONTifREE: §1.11:400. $amt 3$ AnswerOne , abo\-e. Further, the Supreme Court of Alabama.in a footnote to its Ol)inionin RobertsI'. Hutchins,512 So.2d 1231(Ala . 1990), ISCUSSJON: affirmsthe availability of the "ChineseW all" in certain C.'1.SCS The Disciplinary Commission previously issued involving lhe movement of lawyers bet\\leen the govern formal opinion R0-90-57 dsealt with imilar issues ment and private law firms. 572So .2d 1234, n.3. mpro posedi n lhe instant inquiry. Based on the foregoing, it Is the opinion of the Discipll· 284 / SEPTEMBER 1995 THE ALABAMA LAWYER nary CommissionU'lllt an effectiveapplication of the "Chi could in no waypa rticipate in the pendingcri minalmatters absenl nese Wall'' to the newly employedass istant wouldallow the the consent of his client. The remaining membersof the district districta ttorney and other assistant districtattorneys t o par· attorney's staff employing Lhe effective "Chinese Wa.11"concepl ticipate in pending criminal cases even though the newly would not be vicariously disqualifiedfr om furU1er participation employed assistant had represented a co-conspirator of a in lhe other pending criminal matter. pending case, specifically,husband and wifeco-conspirators. To the extent lhat R0-90-57is inconsistent with the holding herein, that opinion is modifiedaccordingly . • The new assistant would have to insure his compliance with Rules 1.6 and 1.9, AlabamaRul es of Professional Conduct. He [R0-94-10] RULES OF THE U.S. COURT OF APPE ALS FOR THE ELEVENTH CIRCUIT Pursuant to 28 U.S.C. §2071 (b) and (e), notice is hereby given of proposed amendments to the Rules of the U.S. Court of Appeals fer the Eleventh Circuit (Rules), and amendments to Addenda Three. Feur, and Eight to the Rules which have been implemented by General Order ef the Court. The proposed amendments to the Rules would: • require that in bankruptcy appeals a Certificate of Interested Persons identify the debtor, members of the creditor's committee , any entity which is an active participant , ana other entities whose stock or equity value may be substantially affected by the proceedings ; • clarify the spacing and type size requirements in briefs; • specify that the time for issuance of the mandate and fer filing a petition for rehearing or suggestion of rehearing en bane begins anew upon entry of an order authorizing publication of a previously unpub· lished opinion; and • require that a moti0n to dismiss an appeal must state whether the dismissal is sought with er witnout prejudice. Other proposed amendments make other minor changes to the circuit rules er conform to changes in the Federal Rules of Appellate Procedure which took effect in December 1994, as well as those pending before Congress and scheduled to take effect in December 1995. Addendum Three is proposed to be amenaed in accordance with General Order No. 94-A to conferm le the Judicial Improvements Act of 1990, Pub.L.No. 101-650. which amended 28 U.S.C. §372(c)(1). Addendum Four is propesed to be amended in accordance with General Order Ne. 95.i:;; to conform te the U.S. Supreme Court opinion in Austin v. U.S., _ U.S. _, 115 S.Ct. 380, 130 L.Ed.2d 219 (1994). Addendum Eight is proposed to be amended in accordance with General Order 17 te previde, among other matters, an alternative procedure fer issuing an order to show cause when the alleged misconduct concerns an attorney's failure timely to file any required paper or brief with the Court. Other proposed revisions to Addendum Eight woulc!: explicitly include payment of the costs of discip linary proceedings ana removal from CJA panels as possible disciplinary sanctions ; clarify confidentiality provisions; and provide that only orders imposing disbarment or suspens ien weuld routinely be transmitted by the clerk to other disciplinary authorities. A copy of the proposed amendments and General Orders may be obtained without charge on and after August 28, 1995, from the Office of the Clerk, U.S. Court of Appeals for Eleventh Circuit, 56 Forsy1h Street, NW, Atlanta, Georgia 30303 [phone: (404) 331-6187] . Comments en the proposed amendments and General Orders may be submitted in writing to the clerk at the above address by September 29, 1995. Andrew Gyarfas Deputy Clerk Eleventh Circuit Atla nta, Georgia THE ALABAMALAWVER SEPTl,';MBER1995 / 285 DEDICATIONSPEECH, Judge FrankM. Johnson Historical Marker Haleyville, Alabama, July 11, 1995 By Jack Bass This article originally appeared in lhe love of Winston County runs just as or special interest to you who are here July IS, 1.995 edition of the Northwest deep for Ruth Johnson, his sweetheart today. Alabamian. from Haleyville, who is the other half of Moyers told me, "I think in tem1s of a great team. his decisions on the court he will be seen e come here today lo honor When I first met my editor at Double as the giant in regard to civil rights in one of Winston County's most day, Jacque line Kennedy Onassis, I U1e South, more so than anyone on the Wloyal sons, a man who became asked how she became interested in Supreme Court in my lifotime .... the legal conscience of the South. Six Fra nk Johnson . She paused for a "I think geographically and spiritually years ago this week, l drove up here moment, then said, ;'He's long been a and cultura lly, if he had been born a with the judge. We visited his grandfa hero of mine. I guess it goes back lo the hundred years earlier, he would have ther's grave in Carbon Hill, then drove White House and heari ng Jack and been Abraham Lincoln. or vice versa .... I on up to Haleyvillefor lunch at the Gal· Bobby talk about him." think the way their culture acted upon ley Restauran t and then to Double Earlier that day in New York I inter them. the circumstances of where they Springs and back to Montgomery. I can viewed Bill Moyers, who in 1980 pro were born, their birth, the antecedents tell you from personal knowledge that duced two one-hour programs, shown a of the forces that were upon them, that l'rank Johnson's love of Alabama and week apart, on Judge Johnson. What he lhose two men are interchangeable, love of Winston County runs deep. That told me that morning will, J believe,be that if Johnson had been born earlier, he would have been Lincoln, and vice versa. "And it has something to do with that territory that influenced them. Winston County is almost a nation unto itself," Moyers continued. "There's something about the force of place and time and cir· cumstance on him that made him ready when the court decisions presen ted themselves. "Obviously he had no idea, nor did Eisenhower when he went on that court, what the issues were that they were going to face,any more than Lincoln did when he arrived in the White House. But the forceo f personality so shapedby their origins made them ripe for the opportu nity that would cause some people to say it was providential and others to say, 'Weren't we lucky?" On that national television program, Judge Johnson talked about his Win Judge Frank M. Johnson, Jr. is honored as an outstanding jurist of his time with a ston County roots and the kind of peo historic marker. Pictul'ed are Haleyville Mayor Larry Gellilard,Jud ge Johnson and ple here today. "We always had an Ruth Johnson. Photo courtesy of the Norlhwes t Alabamian intense pride in being Americans,'' he 286 / SEPTEMBER1995 THE ALABAMALAWYE R said. "I think my regional background patients and prison inmates. He never and that ''in the long run" Judge John had a very. very decisive effect on my viewed matters before him as societal son was "righL" approach to dispensing what I consider issues. however. To him they always During his 40 years on the federal to be just ice, and attempting, through were legal issues. bench, U1e Judge has kept under a glass judicial decisions, lo thwart acLionstha t I Later this month President Clinton paperweight on his desk a typed quota considered unjust. People in that sec will present Judge Johnson with the tion from Abraham Lincoln.Th e middle lion of the country have a fiercely inde Presidential Medal of Preedom, the sentence reads, "If the end brings me pendent attitude and personality. They nation's highest civilian honor. In his out all right, what is said against me have an intense respect for U1eind ivid letter lo Judge Johnson informing him won't amount lo anything." ua I and the individual's rights. They of the award, President Clinton wrote, The Alabama Mouse of Representa believe in a person's dignity, and they "You remain an inspiration to all who tives, which 25 years earlier voted to believe each person is possessedof and value justice." impeach Judge Johnson, voted unani is entitled to integrity. They believed In an editorial yesterdayin response to mously in 1992 to praise Congress for that without regard to race, creed, color, that letter. the New York Times said, naming the federal courthouse in Mont or ideology. ·Every man's his own man' "FrankJohnson was guided by a vision of gomel'}•for him. Judge Johnson hadn't is a real basic philosophy. I came here constitutional principle and the sanctity changed, but Alabama had. [to Montgomery] with that, maybe most of law raU,ert han a thirst for approval." J,ike a solitary ship taming a storm, of it unconsciouslying rained in me." Thirty- four years ago in Alabama, Prank Johnson prevailedby steering U1e That stro ng sense of fair play and George Wallaceca mpaigned successfully right course. His impac t went far respect for the individual and the individ (()r his first term as governor, and his beyond Alabama. His application of ual's dign ity, Judge Joh nson said, biggestapp lause line was attacking "that const itutionaJ principles to unprece "served me in great stead as a lawyer federal judge in Montgomery"-the re dented circumstances, in President and as a judge." wasn't bu t one-as "an integrating, Clinton's words, "helped bring our During his 24 years as a trial judge, scalawagging, carpetbagging, bold-faced nation closer to the ideals upon which Judge Johnson wrote opinions that liar." As most of you well know, he it was founded." transformed the law in school desegre didn't let up after his inauguration. And what you here today are saying gation, voting rights, jury selection, But when I interviewed him almost by your presence is that you canco me First Amendment issues, gender dis 30 years later , Governor Wallace home again. crimination. and treatment of mental acknowledged that he had been "wrong'' Thank you vel'}•much. • ALABAMA LAWYERS RESEARCH SERVICE Saves You ValuableTime The ALRS.a division of The Universityof AlabamaSchoo l. of Law Library, assislSthe bar with their research needs. An anomcy manager and second-and third-year law students utilize the slate's largest law library to fill your research requests. Our fee is S25.00 per hour for the research and writing services. Computer and photocopy charges arc separate and vary . Pleasecall ALRS for more information. D LEGALRESEARCH D PHOTOCOPIES& FAXES D MEMORANDA 0 WESTLA W SEARCHES PREPARATION OAN D MORE Phone: 205-348-0300 Fax: 205-348-1112 Box 870383 Tuscaloosa, AL 35487-0383 Fran Parker Tankersley, Manager The Alabama Lawyer,Research Se,-.,ice i• operated by Tire Universityof Alabama Sc/roofof law and doe, 1101,ngage in the active pracace of law. Jnfonrrationdissen rinated by the ALRSdoeJ not constlt11te legal advice . THE ALABAJ'1ALAWYER SEPTEMBER1995 I 287 Unaut onze• Practice o Law urlng 1994-1995, there were who is not licensed in Alabam.1was in numerous complaints pertain volved in represenling an individual in ing lo lhe unauthorized practice JeffersonCounty. An individual in Jeffer of law filedwilh the AlabamaSlate BaT. son County, who is unlicensed, is hold Many of these were handled by U1es tale ing himself out as a mediator or an arbitrator and also a rinancial consultant bar staff on an informal bails. There or debt manager. There wasan individ were approximately 55 formal com ual claimingto be an attorney represent plaints made pertaining lo unautho ing a party in an insurance claim. An rized practice. Of those formal com individual in south Alabama has pre officeswho '"ere preparing uncontested plaints, il is interesting to note what the pared and med lawsuits for various par divorces.A tilie company In Mobile con individualswere doing that im'Ol\'edlhe ties; Judge Dale Segrest enjoined and tinues 10 prepare deeds and mortgages unauthorized practice orlaw. restrained him from further activities in and other instruments of COllVC)' 288 / SEPTE~IBER1995 TH£ Al.AWl~ LAWYER Bar is one of the more active commit decision is the ca5e of CoffeeCounty Unquestionably,lhe Ltgi51atureintend tees. Abstract and Title Company 11. Stale. ed that §34-3-6was enacted for the pur Section34-3-1.1975 Code of Alabama Ex Rel Norwood,445 So.2d 852 (Ala. poses of insuring that lay individuals mnkes it a crime for any person to prac 1983). Among other things, this case would nol serve others In a representa· tice or assumet o act, or hold himselfoul held that U1e preparation of deeds and live capacityin areas requiring the skill LOlh e public as a person QL~11ifiedto prac the nlling in of lhe blanks in forms by and judgment ofa licensedattorney. tice or carry on the calling of a laW}'i:r, Lillecompanies is prohibited.An argu It has recently been brought to the guilty of a misdemeanorand on convic ment Will madeby the Lillecompany that attention of the committee lhat acti1>ns tion, the person can be fined not to the forms were prepared by attorneys are beingprosecuted in the di51rictcourts exceedS500 or be imprisonedfor a peri and these forms were used by the tille of the state by individualsnot licensed od not to exceed si~ months or both. companyw herein the title companyonly lo practice law under §35-9-80, 1975 Section 34-3-6, 1975 CQdeof Alabama filled in the blanks. The Lilleco mpany Code of Alabama (Sanderson Acl). ilates that only persons who are regu argued that this was cs~cnlially a cleri These Individuals are not owners of the larly licensedto praclice law may do so. cal I.ask and wasnot the practice of law. land. Theyare agents for the landlord in This section specificallydefines the prac The court said this overlooked the fact the renting, leasing and managing the tice of law. What constitutes the prac that decisionsmust be ~,de regarding properties. Clearly. any person may tice of law has also been definedby the Lileinformation to go in the blanks.The manage his or her own case. §34-3-19. courts: State Ex Rel, Porteru. Alabama court in the case of IAnd Title Compo· 1975 Code of Alabama. However, it Assoc:iationof Credit Exec:utiues, 338 ny us. Stale, Ex Rel Porter, 299 So.2d appearslo be the unauthorized practice So.2d 812 (Ala. 1976), Prati u. State, 289 (Ala. 1974), specificallyheld that of law for a person who is neither a 278 So.2d 724, cert. denied, 278 So.2d title insurers may only prepare simple part)' nor a licensedattorney to appear 729 (Ala.) 414 US 1002. Probably the affidavitsand statements of fact to sup in a trial as a representativeof a party. most far-reaching and well-reasoned port its title policies. BirminghamBar Ass«iation v. Phillips Important! Licensing/Special Membership Dues 1995-96 A/Il icenses to practice law are sold through the Alabama State Bar headquarters, as well as payment ol special membership dues-lhe same as last year. In mid-September. a dual invoice to be used by both annual license holders and special members willbe mailed to every lawyer currently In good standing with lhe bar. If you are actively practicing or anticipate practicing law In Alabama between October 1, 1995 and September 30. 1996 please be sure that you purchase an occupational license. Licenses are $250 for the 1995-96 bar year and payment must be received between October 1 and October 31 in order to avoid an automatic 15 percent penalty ($37.50). Second notices will not be sent! An attorney not engaged in the active practice of law in Alabama may pay the special membership fee of $125 to be considered a member in good standing. Upon receipt of payment, those who purchase a license will be mailed a license and a wallet-size license for Identificationpurposes . Those electing special membership willbe senl a wallet-size ID card for both Identification and receipt purposes . If you do not receive an invoice, please notifyChristie Tarantin o Freeman , membership services director, at 1·800-354-6154 (In-state WATS) or (334) 269-1515 immedlatelyl THEALABAMA LAWYER SEPTEMBER1995 / 289 and Marsh, 196 So. 725. Generally a act requiring a sworn certification on unauthorized practice. lf he or she corporation may not appear in court all documents filed in the courts of the does. it wnl be up to the bar to bring a except through an attorney. It cannot State of Alabama requiring the name, contempl proceeding under that quo appear pro se, Brown o. Parnell, 386 address and telephone number of the wammto action. Fortunately. of all of So.2d 1137 (Ala. 1980); ex parle lam individualwho prepared the documenL the quo wammlo proceedingsthat have i>erth,5 So.2d 622 (Ala. 1942).This pro The act should provide se\'ere criminal been filed within the last two years. hibition has been eased by statute for penalties if the affidavitis made falsely. none al this lime have actually been actions in small c::laimscourt, §12-12- This should cause much of the unau tried. There are sevtrnl pending. There 3l(b). 1975 Codeof Alabama.There is thorizedpractice to be severelycurtailed. are some where the defendant has no similar provision ror appearances in The affidavit would give the state bar agreed or consented to a permanent district or circuit courL Therefore, it some leveragein policing the unautho injunction being entered against them. seems quite obvious thal an agent can rized practice. It should be incumbent Al this lime, there are two quo 1oorran not represent the property owner in the upon the supreme court to promulgate to proceedings pending. Al least one court proceedings.The statute seems to a rule requiring that all judges in the will have lo be tried, and it will probably only allow the owner, his agenl or state inquire as to the preparationof any end up in the AlabamaSupreme Court. allorney-at-law or attorney-in-fact to documents, pleadingsand papers filed in There is n common statement by make affidavit of the facts required their court. A requirement such as this those accused of engaging in the unau under §35-9-80. but does not give would also severelycurtail unauthorized thoriud practice of law that this com authority for an unlicensed person to prnctlce.The state barshould hire a full mittee is only pursuing them because appear in a trial as a representativeof a time investigator to investigate the they, the accused,are laking moneyfrom property owner. unauthorized practice complaints and lawyel'$.N o member of the committee Duringthe la.\ttwo years.this commit grievances. has ever taken that position about any tee has been veryactive with fullcommit Other than the criminal statute, the complaint. The committee is charged tee meetings four to five times per year. stale bar has available to it a quo with the duty of protecting the public Variouscomplaints are assigned to vari warrantoproceeding pursuant to §6-6- from these Individualswho are engag ous members In the locale where the 591-599, 1975Code of Al11bama.Mem ing in various fraudulent activities and complaint originates. These committee bers of the committee have been also slopping lhose Individuals from members have devotedan averageof 60 assigned the task lo file the quo war creating more legal problems for the to 100 hours per membereach year. plus ran/o proceeding pertaining to a person public. The problems that people create an undeterminedamount of out-of-pock engagedin the unauthoriied practice of without having ony intent whatsoever et expenses.The commiuee has primari law in their geographical area. That to engage In the unauthorized pr.,ctice ly met in Birmingham,and those mem member has lo prepare lhe petition and of law is incredible. !'or example, bank bersof the committeefrom extreme south then forward ii to the slate bar for employeeswho advise elder!)•people to Alabama, such as Mobile, Dothan. Bay reviewby state bar counsel and for sign put one son or one daughter on the Minette, Cretnville. etc., have de\'oted ing by ExecutiveDirector Keith B. Nor account with them create many prob even more hours. Thosemembers spend man. The petition is then forwarded lems. At the Lime of the death of the six lo eight hours in travel time alone back lo the member for filing with the parent, sometimes thM son or daughter to meetings. This is one full day out of circuit court. The member 15 responsi takes the entire account and deprives their officefor each meeting they attend. ble for seeing that the general counsel the other brothers and sisters of what There is no compensation (nor is any is advisednt all limes of what is taking they think wouldbe their fair share.This expected)or reimbursementto any mem place in the proceeding. That member lakes place throughout the state hun ber; therefore, these members are to be must nlso prepare the case for trial just dreds or limes ~veryweek. How many commended. The active members for as that member wouI d be preparing a limes there are greedy or unscrupulous the l 995-96 year of the committee are: case for a client in his office.Thal mem brothersan d sisters, I do not know.T hese Charles N. Mcl(nighl. Mobile; David B. ber must seeLhal proper Individuals are individuals preparing deeds who do not Cauthen. Decatur.Steve Thomas, Jasper; subpoenaedso thal proper proof can be know lhe ramifications of a deed con DavidL. Beuoy.Arab; Randall S. Ford, presented lo the courl and/or jury to veyingas tenants in common, joint ten Molton; David 0. Shelby, Birmingham; prove that the individualis engaging in ants with right of survivorship,elc., are James W. Porter II. Birmingham;Marc the unaut.honted pr.,ctice of law. Once also creating nightmaresfor Alabamians. Brakefield,Tuscaloosa: Rufus E. Elliott the individual is found guilty of engag. Report any unauthorized practice of rn, Birmingham; NevaC. Conway,Mill ing in the unauthorized practice of law, law that is brought lo your attention to brook;Charles E . Crumbll,y,Montgome,y; the circuit judge enters an order per the st.Ile bar or to a committee member JaniceBoyd Neal, Opelika; Thomas Haigh. manently enjoining the individualfrom in your area. • Troy.Daniel A. Benton.Fair H0pe;Charles engaging in the practice of law in the L. Miller. Mobile;Ceorge A. Tonsmeire, State of Alabama without a license. L. Bruce Ables L BnJce Ab'M ,_,.. ..., ciog,ee lrom v..- . Mobile: and JimmyH. rem.,ndez,Mobile . Even afier this is done, it is still left up 1111uni-,iy . and""' ecr,,,uod"'11>e Alol>ema How CM this unauthorized practice to the committee to police the situation Suuo Bar,n 1963 Ht,._. '*In o h~uen l leclurerat of law be stopped, or at least curtailed? to make sure lhnl an enjoined person Vondet... Univ""' IVInd AU-ASA. Ho is also a trembor ol ihc To nnot000Bo r Associauonood cha Perhaps Lhe Legislature should pass an does not continue to engage in the Amenoan81,r Aseoc l31.lan 290 I SEPTEMBER1995 Tl IE ALABAMALAWYER Registration Form Mail: ABICLE.13 ox 870384.Tuscnloosn. AL 35487-0384 Fax: 205-348-1072 Phone: 800-627-6514 Name BorlD# Address City State ~p+l'our Prtn,g,str:monFee; $165 Du« to rpace UmiJatlons,. .e cannm guaranu, thtnr •·Ill M Door Rtgis1ro1io11. 0 Pllymcnl EncloJed OVISA 0 Masicrcanl O Discovu j OPPORTUNITIES The following in-state programs have been approved for credit bg the Alabama Mandatory CLE Commis sion. However, infom1ation is available free of charge on over 4,500 approved programs nationwide identified bg location date or specialty area. Contact the MCLE Commission office at (334) 269-1515, or 1-800-354-6154, and a complete CLE calendar will be mailed to you. INSUUANCE LAW: BAD FAITH September 23 • October 1 SEPTEMBER CLAIMS DIVORCE& CHILD CUSTODY 7-8 Birmingham MEDIATION TRAINING ANNUAL REVIEW LormanBusiness Center, Inc. Allan~, Chattanooga, ConventionCenler Credits:3.8 Cost:$138 Schoolfor DisputeReso lution TennesseeLaw lnslitute (715)833,3940 Credits:40.0 Cost:$950 Credits:12.0 Cost S325 (404)299-1128 (615)544-3000 18-22 29 Friday SOUTlrERN FEDEIW. TAX RECENT DEVELOPMENTS IN lNSTITUTE CRIMINAL LAW & PROCEDURE 8 Friday Atlanta.llyaU Regency Birmingh.lm HEALTH CARELAW Southern FederalTax Institute. Inc. CumberlandI nstitute for CLE Birmingham,Medical Forum Building Credits:34.8 Cost:$595 Credits:6.0 CumberlandInstitute for CLE (404)298-0707 (800)888 -7454 Credils: 6.0 (800)888-7454 22 Friday OCTOBER EXPERTWITNE SSES 5.7 Birmingham 12 Tuesday SOUTHEASTN EGOTIATION CumberlandI nstitute for CLE STATE & LOCALTAX ISSUES ChapelHill, Un iversityof North Credits:6.0 AFFECTINGA l.ASAMA Carolina (800)888-7454 BUSINESSES NationalInstitute for TrialAdwcacy Mobile, AdmiralSemmes Credits:18.8 Cost:S850 NationalBusiness Institute, Inc. (219)239. n10 Credits:6.0 Cost S149 WORKERS' COMPENSATION (715)835-8S25 Birmingham LormanBusiness Ctnter, Inc. 6 Friday Credits:6.0 Cost:$159 8/\Nl CLE Materials For Sale! -$10.00 (includespostage}- Makechecks payableto the AlabamaState Bar • A Closer Lookal the Ad\,ersarialProcess DISABILITIES LAW 1.995 . Ann u al Mee t mg_ • TheAuomeyasanEmplO)-erUnckrtht Continuing Legal Education l.t\-eraging with Legal Assistants Amerians with DisabilitiesAct ProgramMaterials-Update '95 COMPIITER TRAINING l!'<'TERNATIONALI.AW RecentDecisions or the Alabama • CD-ROM • On-Un< • Pedual RegulatoryConsiderations in Supreme Court EmployingNon.Cilium in the United RecentDevelopments in the COMMUNICATIONS LAW States:An Omvi..,., AlabamaLegislature • TheEmt111ing Communications LITICATTON RecentDevelopments in ~IJlrl TMEALABAMA LAWYER SEPTEMBEll1995 1293 Sex-BasedWage Discrimination: Recovery Underthe Equal Pay Act, Title VII,or Both 8g Judgelx>bro H. Coldslain n 1963 and 1964, Congress passed of proof each requires, and to examine responsibility and is performed under lwo statutes which were designedto their relalionshipto each other in light similar workingconditions by employees I address gender-baseddiscrimination of the actionsof the EleventhCircuit. of the oppositesex, exceptwhere one of in U,e workplace:The Equal Pay Act of four stltutory exceptionsexists. 7 1963 (EPA) and Title VII of the Civil Equal PllyAct RightsAct of 1964(Title VU). The scope ln 1945, as an outgrowthof measures Equal skill, effort Md nsponsibility of the Equal Pay /\ct is limited to dis taken by the War LaborBoard, the first Since the first Judicialdetermination parate wage practices but Tille VII. federal equal pay bill was presented to under the EPA.Cen/ra/ llanouer Bank although including compensation. is Congress.t The bill was not passed. F'or & Trusl Co. v. Commissioner, 159 F.2d more encompassingin its employment the next 17 years, all proposed federal 167, 169 !2nd Cir. 1947). courts have related prohibitions.Thus, when bring. legislationdealing with equal paywas de held that equal does not mean identical. ing an action for redress or sex-based feated. In 1962. the Mouseand Senate Rather. as the Mirandadecision reiter wagediscrimination. a plaintiffhas two each passed legislalionrequiring equal ates, equal hruibeen held to be substan statutory options which providefor dif pay forequal work, , howevera reconciled tially similar. 975 F.2d al 1526.Courts fering burdensof proof and the possibil bi11 was nol approved before Congress haveopted to look behindjob labelsand ity of differentresults. adjourned.When U1e 88th Congresscon to focuson the actual duties and qualifi These differing results nre further vened in 1963,the equal pay proposals cations for a givenp()S ition. Brockv. Geor com111icatedby a split In lhe circuits as were renewedand a reconciledbill was gia SouthweslemCollege, 765 P.2d1026, to the appropriatemethod for establish acceptedand submittedto PresidentJohn 1032(11th Cir. 1985). ing gender-based wage discrimination F. Kennedyfor signature. On June 10. To analy.:especific positions unde.r the under Title Vll. At issue is whether to 1963, he signed the Equal Pay Act into EPA,courts first look to whether equal utilize the traditional Tille Vil method law as an amendmentto the Fair Labor skill is requiredin the performanceof the of proof or the standards and burdens StandardsAcL • variousjob duties. Pursuant to 29 C.F.R. establishedby the Equal Pay Act. Con As an amendment to the Fair Labor §800.125(1980 ), skill is defined to in sequently. the relationship between Standards Act. the Equal Pay Act was clude such factors as experience,train Title VII and EPA remains •a complex immediatelysubJect to severe restric ing. education, and ability. Equal skill areaof law, suffusedwith legislativeand tions.' First, it was limited to discrimi exist.$if the compared employeeshave judicialuncertainty." ' nation in pay. Second, its CO\'eragewas essentially the same prerequisites lo This uncertaintyhas a direct impacton lied to the specificco,•crage provisions perform in either of the two positions, whether a plaintifrs claims will be suc and exemptionsof the Fair LaborStan even if one employeedoes not exercise cessful.The purposeof this article is to dards Acl.• Essentially,the EPAforb ids the required skill as frequenlly in lhe explainthe statutory interpretationor the paymentof unequalwages for equa l work performance of one job as the other EPAand TitleVii, Lo e.' THE ALABAMALAWYER SEPTEMBER1995 / 295 ponderanceor the evidencethal any pa)' Specificityof the firsl three. Sy their V\!ry continuedwage disparity. differenlialcan bejustified by one o( (oor definition. lhe firsl three exceptionsare Meril S)'slems hinge on performance. stalulory exceptions: (i) a seniorily sys limitedin their applicalion.. To be UJ)heldas an exceptioo to the EPA, lem; (ii) a meril system; (iii) a system A seniority system is one in which pay they have usually contained objective which measures earnings by quantity or increments are tied to unils of time in mtlh~ for evaluating such criteria as quality of production; or (iv) a differen• service. If it can be shown that a starting performanceon the job. reliability,initia tial based on any other faclor other than wage was nondiscriminatory and that tive, responsibilities, and fulOllment of sex.M ilchell v. Jefferson County /Jr/. of from the point of starting on the system responsibilities. See Hodgson u. Golden Educ.,936 f.2d 539,547 (11thCir. 1991). is applied equally and consistently to Isles NursingHomes, Inc .. 486 F.2d 1256 An analysisof lhe wording of the four males and femaJes performing equal (5th Cir. 1972). A discriminale hiring exceptionsreveals that the first three are work, the exception will be met. Jr the ",agehas no Impact on the 1.'51ablishment specific examples while the fourth is a startingsalaty point was discriminatory, of a validmerit system,however a permi$ general provision which by use of the the subsequent pracliceo( a validseniori &iblemerit systemwill sen-eto perpetuate phrase •any other factor" ddines the ty system will not excuselhe initial and the inilial discrimination.as a raise ba5ed on a percentlgeof a lesserfigure is still a lesser amount. Seegenerally Bre,man v. VlcltiriaBank. 493 F'.2d at 902. Another specific permissible exception to the Acl is one that rests on a denned system or measuring earnings by quanti ty or quality of production. This excep tion is usually found in cases that relate H'anl to reduce ,:1ie11t ,:omplainls . ..feel good about your to commissionoriented positions. D practice .•. and rate high on client satisfaction? The most commonly raised equal pay The ALABAMASTATE BAR 'S ""OneCl1ent at a Time" videotapewith exception is the factor other than sex accompanyingCLE materials on improvingclient relations Is the way to exception. Examples of acceptable fac learn how- and is approvedfor 1.0CLE credit. tors other than sex include shift differen t I a Is, red circle rates, temporary reassignments. and training programs. IVhat involves a higl1lyl11teroctive presentation ... th e use of 29 C.F'.It §145.146, 147, and 148 (1980). r::, In instances where shift differentials ~ oideo... o,1d participo11I studg materials discuss difflcuft to ha,oebeen permitted, the typicalfact pat· iss ues ,:onfro11ted daifg bg lawyers ? tern involves a day and a night shift "TheCase of the Silent Alarm: CT Constmdion Company, Inc. t•. The which either sex is permitted to work. Sentry Ccmpany, Inc. - A Study in Professionalism"is basedon the AllhOllghboth sexesha\oe an equal oppor burglary of a small construction companyand the resulting civil suit for lunity to work either shift, the men lend damages.The case pits a small company and a small law firm against lhe to be the only ones to choose the night resources or a large c-orporatecllenl and large law firm. Approvedfor 1.0 shift, with its higher pay. If a womun • 2.0CLE cred it. chose lo work the night shift, she too wouldreceive the wagedifferential. Thus. a faclor other than sex-the night shift Itself-has been found to be the reason Do you need the fates/ i11/ormation an Alter11ale Dispute for the paydisparity. El Resolution? Anothermeans of e." 296 / SEPTEMBER1995 THEALABAMA LAWYER ly performed by women, but continues ing "against any individualwith respect the plaintiff must sustain the burden of the higher rate of pay. With the addition to his compensation, terms. conditions, proof. In McDonnell Douglas Corp. u. of the health factor, this is a permitted or privilegesof employment, because of Green,411 U.S.792 (1973),the Supreme practice, but if the differential was based such individual's race, color, religion,sex, Court specifiedthe shifting burdens of merely on an employee'ssex, the higher or national origin."S "The legislativehis production and proof which are neces paid employeecould not be red circled. tory of Title VTIdemonstrates that it was sary for determining whether or not an Thus, if a nondiscriminatory reason for enacted primarily to counter racial dis employer intentionally discriminated paying one employeemore than another crimination; the prohibition against against employees. can be established, red circling can be gender-based bias was added to the legis The plaintiffmust first prove, by a pre shown to be a reasonableexcept ion as a lation at U1elast moment, and, according ponderance of the evidence,that a prima factorother than sex. Mulhall v. Advance to some theories, in an effort to thwart faciecase o f discriminatione.xists. T o meet Sec., Inc., l 9 F.3d 586, 590 (11th Cir. passage of the Civil Rights Act." ld. at this burden, the plaintiff must demon 1994). 1526.See, e.g., County of Washingtonu. strate that the plaintiff is a member of Employeesworking in the same area Cun/her, 452 U.S. 161, 190 n.4. (1981) one of the protected classes (race, sex, may receive unequal wages when one is (Rehnquist,J ., dissenting). religion or national origin) and that the in a bona fide training program and has Two models for discrimination exist plaintiffhas not been treated as well as a been assigned to the work area as part of under Title VII: disparate treatment and similarly situated employeewho is not a the training program. For the training disparate impact. Disparate treatment member of the protected class. 411 U.S. program to be considered bona fide, it involves intentional discriminatory at 802. If the plaintiff is successful in must be open to both sexes and must employment practices based on race, sex, meeting the initial burden of proof, a demonstratively utilize both sexes. Dif religion or national origin. Disparate presumption is createdthat the employer ferentials basedon male employeesbeing impact claims relate to employment unlawfully discrim inated against the the head of a household,or on the theo practices which are facially neutral, but employee. Texas Dept. of Community ry that it costs more to employ one sex which have a disparate impact on one Affairs u. Burdine, 450 U.S. 248, 254 than the other, or on the assumptionthat group more than another and which can (1981). Although, according to Burdine a given rate of take-home income is nec not be justifiedby business necessity.' at 253, the burden of proof remains with essary and that if a married couple is the plaintiff, the burden of production employed this necessity amount can be Disparate treatment then shifts to the defendant to "articu dividedbetween the salary of the two indi In disparate treatment cases, an late some legitimate nondiscriminatory viduals, are all prohibited. Finally, if a employermust intentionallyact in a dis reason" for the alleged discrimination. bona fide market argument is advanced criminatory manner predicated on race, 411 U.S.at 802. as a factorother than sex,more than mere sex, religion or national origin. To sus The defendant merely must provide a assumption of a tight market or of the tain an action for disparate treatment, legitimate, nondiscriminatoryreason for necessity of paying a higher wage must be demonstrated. Recoveryunder EPA If a defendant fails to meet the burden of establishing one of the four affirmative defensesprovided in the statute, strict lia bility adheres.The plaintiffis not required, in an EPAcase , to prove discriminatory intent on the part of the defendant.Miran da v. 8 & 8 CashGrocery Store, Inc ., 975 F.2d 1518, 1533 (11th Cir. 1992). See "Court surety service no ordinary Mitchell v. JeffersonCounty Bd. of Educ., agent can match" 936 F.2d 539 (11th Cir. 1991).Under this conceptof strict liability,the plaintiffmay be awardedbackpay to a point two years prior to the dayo n which the lawsuitwas CIVILCOURT BONDS BY PHONE ... filed. 29 U.S.C. §255(a)(I988). An addi tional an1ount equal to backpay may be BYTOMORROW awardedas liquidatedda magesunless the PROBATE • INJUNCTION • SUPERS EDEAS • REPLEV IN employer shows that the violation was in good faith. Miranda at 1526. DISTR ESS FOR RENT • GARNISHMENT • ATTAC HMENT ALL OTHER FED ERAL & STATE COURT BONDS Title VII Tille VHof the Civil RightsAct of 1964 prohibits an employer from discriminat- 1-800-274-2663 THE ALABAMALAWYER SEPTEMBERJ9951297 Lhe specific employment practice. The was able to prove an alternative business a.llow an individual to pursue indepen defendant does not have Lheb urden of practice and the employer refusedto uti de.ntly his rights under both Title VIIand proving U,e absence or a discriminatory lize it, "such a refusal would be.Liea claim other applicablef ederal statutes." 975 F.2d motive.Board of Trusteeso f KeeneState by [the employer[ that their incumbent 1518 al l 527. Because the EPA exist Collegev. Sweeney, 439 U.S. 24, 25 (1978). practices are being employedfor non-dis ed prior lo enactmenl of Title VII. U1e I( the defendant can produce a legiti criminatory reasons." Wards Coue,490 simple premise would be that Tille VII mate, nondiscri minatory reason, Lhe U.S. at 661. "'as intended lo supplement th<>EPA; burden shifts to lhe plaintiff Lo"prove In 1991. Congress codified most of the however, in practice, the interaction of that the legitimate reason offered was a interpretative requirements that Wards Title VII, the Bennett Amendment, and mere pretext for an illegal mot ive." Covehad held,11 but specificallychanged the EPAh as been an area of legal dispute. McDonnellDouglas a t 802.: Mirandau. B the employer's burden to include both The Supreme Court addressed Title VU & 8 Cash GroceryStore, Inc., 975 F.2d production and persuasion.12 Although causes of action brought under the dis 1518,1 528 (11th Cir. 1992). the 1991 amendments are helpful to parate treatment or intentional sex-based Although proof of the discriminatory plaintiffswhose action relies on disparate wage discrimination theory in the case of motive has been held to be critical, "il impact discrimination, the majority of County of Washington v. Gunthr1r,452 can in some circumstances be inferred Title Vll cases still involve disparate U.S. 161 (1981). In that instance. U1e from the mere fact of differencesin treat treatment situations. Court concluded that Congress only ment." 975 F'.2d at 1529 quoting Inter intended lo incorporate lhe affirmative nal'/ Bhd. of Teamstersv. U.S.,431 U.S. Relationshipbetween Equal Pay Act and defenses from the EPA, not Lhe require 324,355 n. 15 (1977). Title VU ment of equal pay for equal work. 452 Because sexual discrimination was U.S.at 179- 180. The Cou,·t's rationale Disparate impact tacked on to Title VII two days before the was based upon its interpretation of the Disparate impact cases are predicated Title Vil legislation was voted on, any remedial aspects of Title VII and the on "employment practices that are facial possible inconsistencies between the Bennett Amendment: that effectively if ly neutral in their treatment or different EPAand Title VIIwere not raised until equal pay for equal workwas the standard, groups but thal in fact fall more harshly late in the House or Representat ives relief would not be possible. no matter on one group than another and cannol debate over th<>bill .13To address the how egregio us the discriminat ion, if be justified by business necessity."" In concerns that were being raised over there were not a man in an equal job al 1989, the Supreme Court held that a possible inconsistencies, Senator Ben higher pay or if the job in question was prima facie case of disparate impact dis nett proposed a technical amendment to unique to the company but would have criminationwas established when a plain the Civil Rights Bill which provided paid more had it been Ailedby a man. Id. tiff idenLified a specific or partic ular "that in the event of connicts, the provi at 178-179." The Supreme Court con employment praclice that created the sions of the Equal Pay Act shall not be cluded that "Congress sure ly did not disparate impact under attack. Wards nullified." 110 Cong. Rec. 13,647 (1964). intend the Bennett Amendment to insu CovePack ing Co.v . Alonio,490 U.S.642, The actual Bennett Amendment reads: late sucl1 blatantly discriminatory prac 657 (I 989). Once a prima facie case was It shaUnot be an unlawfule mploy tices irom judicial redress under Tille demonstrated, the plaintiff was required ment practice under this subchapter Vil." 452 U.S. at 179. lo utilize statistical evidence "of a kind for any employerto differentiate upon Although the Guntherdecision clearly and degree sufficient to show lhat the the l>asis of sex in determining the incorporated the EPA's affirmalive practice in question has caused the exclu amount of the wages or compensa defenses into Title VII sex-based wage sion of applicants ror jobs or promotions tion paid or to be paid to employees discrimination cases. the Court actually becauseof their membershipi n a protect of such employer if such differentia fueled the area of dispute by failing to ed group." Watsonv. Fort WorthBank & tion is authorized by lhe provisions delineate the respective burdens of proof Trust.478 U.S.977,994 (1988). of section 206(d)of title 29 [the affir for gender-based wage discrimina lion The burden of production of evidence mative defenses to the Equal Pay under Title Vil. Most of the dispute has then shifted to the de[endant lo offer a Actf. 42 U.S.C.§ 2000e-2(h). Since business justification for the allegedprac Lhe1964 enactment of Tille VII and Hon. Debra H . tice. The employer needed only to show the Bennett Amendment, various Gold stein that the employment practice in question interpretations have been advanced Dobrali GoldsteinIs as to the relationship between Title an Admll'IS!ralNOLaw served the legitimategoals of the employ Judg&wi1h me O lhca er. Wards Cove, 490 U.S. al 659. The vnand LheEPA . oCHear ings and Appea l$. Social Securl · employerwas not required lo show Lhal In Alex011derv. Gardner-DenverCo., IYAominlmra 11on. 1n the practice was essential or indispens 415 U.S. 36, 46-49 & n. 9 (1974) , the BIITl'lingl"lam?no, to her 1990 AU eppol111- able to the business. Id. The burden of Supreme Court held Lhal Title VII was meo1.s he wasa 11\'.al persuasion remained with the plaintiff intended to "supplement, rather than euo,r,eylor 1heotf,co of the Solicitor' u. s. who had lo demonstrate that alternative supplant, existing laws and institutions Depot11nen1ol l.allof business practices ex.isledto acl:tievethe relating to employment discrimination" JudgeGo ldsteinIS a 1984adm1ueo to u1eslato bar and lSa membor0 1 same business ends, with less discrimi and tl1at "tl1e legislative history of Title 11'16Alabama Lswysr Ed11orlnl Boa rd natory impact. Id. at 658. If the plaintiff VII manifests a congressional intent to 298 / SEPTEMBER1995 THE AI..ABAMALAWYER concernedwhether lhe Bennett Amend brought under Title VII for the first time pay. The parties cross-appealedthe judg ment incorporates the EPA's shifting in Mirandav. B & B Cash GroceryStore, ments. 975 l'.2d 1518al 1521-1522. burden of proof or only the four affirma Inc•. 975 F.2d 1418 (11th Cir. 1992). The pertinent facts of the case were ti,;e defenses.If only the four affirmati11e Prior Eleventh Circuit ~s had stipu that B&B Cash Grocery Stores. Inc. defensesare adopted,Title Vll's eviden lated at pretrial as lo what burdens of operated 24 U-Save Supermarkets in tiary burdens remain unchanged. proof and production would be conlrol Florida. Each store's management team The importance of this distinction is ling.11 consisted of a fourth manager, third that under the EPA,the burden of proof The Miranda case consisted of two manager. assistant manager, and store strictly requires provingthat an employ consolidated appeals resulting from a manager." The normal management ee performedsubstantially similar work lawsuit filedby Karen MirandaHopewell progression was from stockboy or bag as an employee or the opposite gender against B & 13Cash GroceryStore, Inc. boy lo third and fourth maHager, Lo for less pay. The burden then shifts to alleging gender-based discrimination in assistant manager, to slore manager. the employer to establish one of the four violation of Tille VII and the EPA.Miran Only two women, boU, of whom came statutory affirmaLlvedefenses. Failure to da also filed a claim for inte ntional up through the cashier or head cashier's do so imposesstrict liability.Contrarily, inniction of e01olional distress under position, had ever becomestore manag the disparate treatment Title VII l'lorida law. A magistrategranted defen er. Buyersworked out of the main office approach advancesa fairly relaxed stan dant partial summary judgment on the in Tampa, Florida. Except for Miranda, dard of similarity between male and Florida tort law and EPA issues on the who progressed from cashier, to head female-occupiedjobs , but the plaintiff grounds thal the plaintiff failedto sus cashier. to non-foods manager, lo ac hasthe burden of proving the existence tain her burden of establishinga prima counting and bookkeeping.lo in\'enlory of an intent to discriminateon the basis facie case of sex-based discrimination control derk. lo being one of two gro of sex, race or national origin. Minmda under the EPA.After a bench trial on cery buyers. nil B & B buyers had some u. 8 & 8 CashGrocery Store, Inc, 975 the Title VUallegation, the magistrate experienceIn store management Upon F.2d 1518.1526 (llth Cir.1992). held that the defendant had discrim· being made a grocery buyer, Miranda's A distinction also exists in the area of inated against Miranda on the basis of salary was raised to S400 per week, only available remedies. Under the EPA, a her sexand awarded$52,765.83 in back- $34 more Lhan she had earned as an plaintiff need not exhaust all adminis trative remedies, may opt into a class action by givingwritten consent, may be awardedbllckpay back in time to a point two years prior lo the date or the lawsuit filing,and may recoveran amount equal lo backpayas liquidateddamages unless CADSO the employer shows that the violation was in good faith. Title Vil requires Computer Animation and DesignServices exhaustion of all administratille reme dies, automatically includes one in a eu11r!Jvo111PrcsCJttntiu11s J.Accident r THE ALABAMAI.AWYER SEPTEMBER1995 / 299 inventory control clerk. All male buyers to be legitimate, the burden shifted back 1529.T he Miranda holding was modified were paid between $600 and $650 per to the plaintiff to establish by a prep0n slightly in Meeksv . ComputerAssociales , week. BetweenJu ly 1986 and July 1988, derance of the evidencetha l the employ Inter., 15 l'.3d 1013 (11th Cir. 1994), rely despite requests, Miranda's salary was er had a discri minatory intent. The ing on the Supreme Court"s decision in not equated to the male buyers. In July Eleventh Circuit upheld the trial court's SI. Mary'sHonor Centerv . Hicks, _U.S. 1988, Miranda was informed that B&B finding that B & B's explanation was a _, ~ 113 S. Ct. 2742, 2749, 125 could not afford two grocery buyers and pretext for gender based discrimination L.Ed.2d 407 (1993). Hicks holds that that her position would be terminated and that the defendant had intentionally only a finding of intentional discrimina effective the rollowing Monday. She was discriminated against Miranda. 975 F.2d tion will satisfy the plaintiff's burden of offered the option of a head cashier job at 1529-1530. proof under Title VII. Disbelief of the al $8.00 an hour or references that she In making its determi nation, the employer's explanation may, together had done an outstanding job if she chose Eleventh Circuit relied on inferences with elements of the prima faciecase , be to obtain work elsewhere. She resigned. drawn from circumstantial, rather than sufficient to show intentional discrimi The only other female, who was an assis direct, evidenceto affirm the trial court' s nation, but rejection of the defendant's tant buyer at a salary far belowcompara finding of intentional gender-basedwage reasons does not compel judgment for ble male assistant buyers, was notified discrimination under Title VII and to the plaintiffas a matter of Jaw. Meeks, 15 that her position was being terminated, reverse and remand the case to the dis l'.3d at 1019 n. 1. but she could maintain her $390 per week trict court for tr ial on the Equal Pay ln summary, by adopting the McDon salary as an assistant officer manager. Al issue. As the court held: nell Douglas/Burdine rationale in Mh'an least five males were demoted. but were We believe that the "direct evi da, the Eleventh Circuit distinguished permitted to maintain their rate of pay. dence" standard, such as the one wage discrimination cases brought under Eight to ten months after the females' adopted by the Fifth Circuit, evis Title VII and the EPAi n two ways. First, buying p0sitions were eliminated, many cerates the standards and burdens the Court established that wage-based executivesrece ived pay ,<1.ises, including for a Title VII case as set out in discrim ination claims brought under the remaining grocerybuye r who received Burdine and McDonnellDouglas ... . Title Vil should be adjudged under the a $125-per-weekraise. Incorporating the "direct evidence" more relaxed standard of si milarity Miranda filed EPAand Title VII claims standardwo uld only help clever,but between male and female o«upied jobs, charging that B & B intentionallypaid her venal, employerswho discriminate as opposed to the stricter EPA equality less lhan male employeeswho performed against women and are not com provisions.975 F2d at 1529.See Beall IJ. substantially similar work. The trial court pliant enough to admit it directly. Curtis, 603 F. Supp. 1563, 1580 (M.D. held that the plaintiff failedto establish a Most importantly, it would shield Ca.),affd without op., 778 F'.2d791 (11th claim under the Equal Pay Act, but that employers who significantly under Cir. 1985). Secondly, the Miranda and she had proven a Title Vll violation. 975 pay women but seek to avoid the Meekscases clarifyt hat application of the F.2d 1518 at 1525. On appeal, the defen requirements of the Equal Pay Act McDonnell Douglas/Burdineframework dant contended that a findingthat a plain by changing the job description in to a Title Vil claim places the burden of tiff has not presented a prirna facie case a slight way that does not affect persuasionon lhe plaintiff to prove intent of gender-based discrimination under the substance of the responsibili to discriminate on the part of the employ the Equal Pay Act conclusively prohibits ties. Id. at 1531. er as opposed to the EPA burden on U1e a finding of Title VU discrimination. Id. By looking beyondthe 'direct evidence' employer to establish that the pay differ at 1525-1526. standardsuggested by the SupremeCourt, ential was premised on a factor other After considering the Guntherdecision and adopted by the Fifth and Seventh than sex. Meeks, 15 F.3d at 1019.See also and the legislativeh istory of Title Vll and Circuits,'° the Eleventh Circuit followed EEOCv. ReichholdChem. , Inc.. 988 F.2d the EPA, the courl concluded that the the more nexible, and possibly realistic, 1564, 1570 (lll h Cir. 1993). McDonnellDouglas/Burdine approach to burden of proof standard in intentional There is a significantd ifferencebetween disparate treatment was the appropriate wage discrimination cases. As Circuit the standards and burdens for claims frameworkfor evaluating Miranda'sclaim Judge Dubinaobserved in his concurring brought under Title Vl1 and the EPA.T he of sex-based wage discrimination. Id. at opinion, "Disparate treabnen t cases do interpretation adopted and refined by the 1528.As such , the Eleventh Circuit agreed not ordinarily require direct evidence; Eleventh Circuit reflects the determina· with the trial court that Mirandahad car indeed, it almost neverexists ." Id. al 1536. lion made by the majority of circuits that ried her burden of proof for a Tille Vll In following the McDonnell Douglas! have addressed the relationship between prima facie case by establishing that she Burdine rationale, the Eleventh Circuit, the two laws.21 The essential differenceis was female (class) and that the job she in Miranda, effectively placed the risk of that under the Eleventh Circuit's holding held was similar to higher paying posi nonpersuasion with the plaintiffby hold a Title VIIsex -based wage discrimination tions held by males. In accordance with ing that the Title Vll burden could be sat claim may be successful, with or without Burdine. the "exceedingly Jight''19 burden isfied by proving either that "a discrim direct evidence , even when the more of producing a legitimate, non-discrimi inatory reason more likely than not stringent EPAstandards cannot be meL natory reason for the pay disparity shift motivated [her employer! to pay her less, As such, the Eleventh Circuit, through ed to the defendant. Bydemonstrat ing or that Ithe employer'sexp lanation is not its Miranda decision, affordeda Tille VII reasons which appeared on the surface worthy of belief." Miranda, 975 F.2d al sex-basedwage discriminationcase plain- 300 I SEPTEMBER1995 THEALABAMA LA \ \/YER tiff the broadest breadth of interpreta menl in any way which would dep,ive job In tho same establishment, at a higher or tend 10deprive any individualof rate of pay. Thus, It an employerhi red a tion." Whatever the future outcome of employrnenlopportu nities or otnetwise woman for a unique positioni n the company any SupremeCourt resolutionol the cir· adverselyaffect hisstatus as an and lhen admitted that Mt salarywould cuit split, the EleventhCircuit, in Meeks, employee, because of such inchv,d have beenhigher had she been male, the ual's race.color. refiglon. sex, or womanwould be unableto obtainlegal 15 F.3d at 1020. has commented on its nationalorigin. redressunder petitioner 's lnterrxetatioo. holding respecting the relat ionship 9. See Robert H. COhen,Pay Equity : A Child SimOarly. a an employer used a transparently betweenTitl e VUand the EPAthat "hav· Of The80s GrowsUp, 63 F0 The Judicial Conference of the United States has authorized the appointment of a fourth full-time United States Magistrate Judge for the Middle District of Alabama at Montgomery. Alabama. This appointment is for a lull eight-year term beginning upon appointment The duties of the position are demanding and wide-ranging and will include: (1) conduct of most preliminary proceedings in criminal cases; (2) trial and disposition of misdemeanor cases; (3) conduct of various pretrial matters and evl· dentlary proceedings on delegation from the judges of the district court; (4) trla.1a nd disposition of civil oases upon consent of the litigants; and (5) examination and recommendations to the Judgesof the district court in regard to prisoner petitions and claims for Social Security benefits. The basic jurisdiction of the United States Magistrate Judge is specified in 28 U.S.C. §§ 631 et. seq . To be qualified for appointment, an applicant must: 1. Be a member in good standing of the bar of the highest court of the state ln which the magistrate judge ls appointed. A nominee must have been, for at least five years, a member In good standing of the bar of the highest court of a state, the District of Columbia, the Commonwealthof Puerto Alco, or the Virgin Islands of the United States; 2. Have been engaged In the active practice of law for a period of at least five (5) years (with some substitutes authorized): 3. Be competent to perform all the duties of the office; be of good moral character: be emotionally sta· ble and mature; be committed to equal justice under the law; be in good health; be patient and cour teous: and be capable of deliberation and decisiveness; 4. Be less than 70 years old; and 5. Not be related to a judge of the District Court. A merit selection panel composed of attorneys and other members of the community will review all applicants and recommend to the judges of the District Court, In confidence, the five persons whom It considers best qualified. The Court will make the appointment, following an FBI and IRS investigation of the appointee. An affirmative effort will be made to give due consideration to all qualified candidates, Including women and members of minority groups. The salary of the position Is $122 ,500 per annum. Further Information on the MagistrateJudge 's position may be obtained from the clerk of the District Court: Thomas C. Caver, Clerk United States District Court P.O. Box 711 Montgomery , Alabama 36101-0711 (334) 223-7308 Applications may be obtained from and must be submitted to Thomas C. Caver, Clerk, on or before September 29, 1995 . 302 I SEPTEMBER1995 THE ALABAMAu\WYEfl Kids' Chance Golf he first annual Kids' Chance Goll Scramble was held during the 1995Annual Meeting to benefit the Kids' Chance Scholar T ship Fund. Oxmoor Valley,a course on the RobertTrent Jones Golf Trail, was the site of the tournament.Sixty-o ne golfers competed in the tournament.Steve Brown of Birmingham. the Work· ers' CompensationSection chair, thanked all participants for coming out and thanked the tournamentsponsors for their support. The tournamentr aised a net of $6,700 to help provide scholarships for young people who have had a parent killed or permanently and totally disabled In an on-the-job accident. Kids' Chance was estab Louis Coppedge, kneeling, lines up a pull as Mitch Allen, lished by the Workers' CompensationSection in 1992 and is adminis rear. and Greg Hawley, right, give advice. tered by the Alabama Law Foundation.Twenty students will be receiving $28,000in scholarships for the 1995-96schoo l year. The SteveFo rd, Doug scholarships are tor college and technical school. McE:Jvy, E:ar!John The winning teams and individual prizes are as follows: s/on and JOhnGuJ. tahorn, L·R , were FirstPlace : Brent Tyra , Ken Webb , Mike Lucas a nd Mark Hughes relieved to birdie the hole SPGnsored Second Place: John Gullahom, Doug McElvy, Earl Johnson by Sieve and and St eve Ford Ooug'sllrm. ThirdPlace : Mitch Allen , Lou is Coppedge, Frank Cauthen and Greg Hawley FourthPlace: Scott Moss , Don Wissman , Bill Smith and Jon Barry Closest·IO•the-Pinon Hole 112:Tom Oliver .... Closest-to-the-Pinon Hole #4: Dav id Champlin Closest-lo-the-Pinon Hole 1113: Mik e Waters Closest-to-the-Pin on Hofe #16:Jon Barry Longest Drive: BIii Smith Theparticipants enjoy~d me opportunity Longesr Putt: Doug McElvy to meet Chris Basse/in.a.epeat scholar ship recipient.L ·R, SteveJackson. Sreve Brown.Chris Basse/in,Roger /. Monroeand Jared Tay/of fl Theseguys are ready ro tee it up! L ·R, Jerry Roberson &b C • OOper, Charles Carr and Joe Driver THE ALABAMALAWYER SEPTEMBER 1995/ 303 :tile Nuts and Bolts of Civil Appeals By DeborahAlley Smith and RhondaPitts Chambers n order to protect your clients ade or the filing of a separate judgment or menl motions medpursuant lo rule 50 quately during the appellate process order. Ala. R. Civ. I'. 58(cl. Judgment is O.n.o.v.),52 (lo amend findings of fact I you must have a basic understand not alwaysentered on the day lhe ver in non-jury cases). 55 (to set aside a ing of the rules regarding filing and dict is returned. The court may render default), or 59 (new trial or to alter or timing of appeals. While there is no judgment by ~rate ordtr or announce amend the judgment). It does not apply substitute for reading and studying lhe the judgment from the bench. but the to Rule GOmotions, nor does il apply to Alabama Rules of AppellateProcedure, date that begins the running of lhe 30 rule 50 motions for judgment in accor lhe followingis a summary of some of days for filing post-judgment motions is dance with a motion for directed verdict the basic rules where problems lend to the date the judgment is entered. Post when no verdict is returned (i.e., when arise. judgment interest does not begin to there is a mistrial). See Piersonu. Pier accrue nor does the time period for fil. son,347 So. 2d 985 (Ala.1977). POlt-Judameotmotions: The first issue ing post-judgmentmotions begin lo run that one confronts in seeking appellate until the judgment is entered. Time for appeal: Generally, the appel reviewi s whether the filingof post-judg lant has 42 days from the enlly of judg ment motions is necessaryor desirable. Di1po1IH0nof poat-judg)nentmotions: ment in which lo nppeal.However, appeal The nuances of resolvingthat issue are Under Rule 59.J. Ala. R. Civ. P.. lhe trial must be perfectedwithin 14days in cases beyond the scope of this article. Howev court has90 days from the date the post involving(1) interlocutory orders grant er, this question must alwaysbe evaluat judgment motions are filed to rule on ing, continuing, modifying,refusing or ed because In some circumstances a lhe mollons. If t he 90 days expire and dissolvingan injunction, or refusing lo post-judgment motion is necessary in lhe trial court has failed lo rule, lhe dissolve or modify an injuncllon: (2) order to prt$el\'t illl issuefor appeal See. motions aredeemed denied by operation interlocutoryorders appointingor refus t.[!., Wade 11. Pridmore,361 So. 2d 511 of law. H-r. lhe 90-dayperiod may ing lo appoint a receiver: (3) interlocu (Ala. 1978)(motionto set aside default be extendedwith the express consent or tol)' ordersdetermining the right to public judgment must be filed beforeappealing all the parties. The consent must appear office:and (4) judgments in actions for entry of defaultjudgment). of record, and ii must be entered before lhe validationof public obligations.See Motionsfor jnov, for new trial and to lhe expirationof the original90-day peri Ala. R.App, I'. 4(a). alter or amend the Judgment must be od. The 90-dnyperiod also maybe extend Timely ftlingof a notice of appealwiU, filed within 30 daysof the entry or judg ed by the appellate cou rl lo which an the trial courl is the acl that confers ment. f:ntryof judgment means the nota appeal of the judgment would lie. jur isdiction on lhe appellate court. If tion orth e Judgmenton the docket sheet Rule 59.1 ap1)lies only lo posl-judg- notice of appeal is not timely filed, the 304 / SEPTEMBER1995 THEALABAMA LAWYER appellate court lacks jurisdiction to trial or to alter or amend the judgment), been altertd substantiallyby subsequent consider the appeal. no matter how the appeal time is suspendedand begins ruling5 on post-judgment motions. In meritorious it may be, and the appeal to run anew from the date or disposition such a case. the appellee may move lo must be dismissed.See Haydm u. Nor of the post judgment motions. See Ala. dismi5s the appeal. The appellant can ris, 437 So. 2d 1283 {Ala.1983) (time R.App. P. 4. If the post-judgment motions respond and state whether appellate limit for nting notice of appeal is juris are not timely med, however, the time review is still sought on some aspect or dictional. it cannot be waived, nor is it for appeal is not tolled and will expire 42 I he case. The appellant can amend the subject to extension of time by agree days after the entry of judgment. Payne notice of appealwithin 42 days after the ment of lhe parties or order of lhe appel u. City of Athens, 607 So. 2d 292 (Ala. dispositionor the last motion.The appel· late court.); Ala. R. App. P. 2 (a)(I) {"An Civ.APP- 1992). If timely post-judgment lant should notify the appellate court appealshall be dismissed if the notice of motions are llled and they are deemed clerk when the appellant discovers that appealwas not timely filed to invoke the denied by operation of Rule 59.1, the the notice or appeal is being held in jurisdiction of the appellatecourt. ") appeal time begins to run from the 90th abeyance or has been held in abeyance The notice of appeal must be received day. even if the trial court later enters under Rule4(a)(S). and filed in by the clerk of the trial court an order purporting to dispose of the within the time for appeal in order lo motions. See Woodu . BenedictineSoc'y Whnt to Rte:Th e notice of appealmust properly perfect lhe appeal. The provi of Ala., Inc., (Ala. 1988) (42 day appeal specify the party or parties laking the sions of Lhe appellate rules concerning time began to run on dale that motion appeal, must specify the judgment or serviceby mail do NOTappl y to the notice was denied by operation of rule 59.J order appealedfr om and must name the or appeal. Thus, depositing a notice of rather than from court's subsequent court lo which the appeal is taken. The appe.'llin the mail is insufficientt o con order purporting to rule on motion). designation of the judgment or order stitute filingwith the trial courL Alaba lCa timely notice of appeal is filed by appealed Cromdoes not limit the scope m11M, 1dicofdAgency o. Propl.es,55 i So. one party, any other party may file a or appellatereview. F urther, designation 2d 1281 (Ala.Civ. APP, 1990) (serviceby notice of appeal within 14days of that of the wrong appellatecourt is treated as certifiedn\3il applies o nly to filings in an notice or within the originalappeal ti me, a clerical mistake and may be corrected appellate court; appellant's notice of whicheveris later. Ala.R. App. P. 4{a)(2). accordingly. Ala. R. App. P. 3(c), The appeal senl to circuit court by certified The appellee may not raise any issues appellate court, within its discretiona nd mail was 11ot Limely filed). Facsimile differentfrom those raised by the appel consideringa ny prejudice to the adverse transmission of a notice of appeal also lant. unless he has med a cross appeal. does not constitute filing the notice of A cross appeal requires the filing of the appeal with the circuit court. Ex par/e same documents a.sany other appeal, Tuck, 622 So. 2d 929 (Ala. 1993). and the docketingfee also must be paid. Rule n (d). Ala. R.Civ. P., pennits the trial court to extend the time for taking Effect of appeal, taken during the an appeal upon a showing of excusable post-j udgment motion lime perio d: neglect in failing to learn of the entry of Prior to February 1.1994, ming a notice the judgment. This rule may be ulil Ized or appeal before the disposition or one's when a party does not receive notice of own post-judgment motionswould work the entry of judgment. However, the as a waiverof the post-Judgment motion appeal lime may be extended no more and possiblythe loss of certain issues for than 30 days. Lindstrom u. Jones, 603 appellate review. Slate Form Mutual So. 2d 960 (Ala. 1992). Rule n(d) does Automobile lnsuronce Co. v. Robbins, not permit the trial court to extend the 541 So. 2d 4n (Ala. 1989). The amend time for appealfor any reason other than ed rules provide that a notice of appeal failure to learn of entry of the judgmenL which is filed after the announcement Greys/one Closeu. Pidelity & Guaranty or a decisionor order bul beforethe entry Ins. Co., !Ms. 1940544 & 1940584Jul y of the judgment or order shall be treat 14, 19951 _ So. 2d _ (Ala. 1995) ed as filed after, but on the same date (appeal dismissedbecaus e "litigant's mis as, the order is entered. Ala. R. App. P. calculation of time for filing notice of 4(a)(4). If notice of appeal is filed after appeal, no matter howinnocent or under the entry of the judgment, bul beforethe standable. is not the kind of neglect dispositionof all post-judgment motions, excusedunder n (d) and the trial court the notice is held in abeyance until all wa.swithout the power to grant ... an post- judgment motions are ruled upon. extensionof time to ... appeal"). The notice of appeal becomes effective If timely post-judgment motions are upon the date of disposition of the last filedpursua nt lo Rules50 Q.n.o.v.),52 (lo of all such motions.A ln. It App.P. 4 (a)(S). amend findings of fact in non-jury case). This "abeyance" procedure could result 55 (to sel aside a default). or 59 (new in an appeal from a judgment that has Tl IE Al.ASAMALAWYER SEPTEMBERl 995 / 305 party. a.lsomay treat the naming of Lhe file and serve a designation of any addi· milted to the trial court for approval. appealing party incorrectlyas a clerical tional portions of the record he deems The statement must then be r,led and mistake and allow the real party to be necessary. included by the clerk of the trial court substituted, even ir the motion to sub· Transcriptpurchase order - A tran in the record on appeal. Subdivision (e) stitute is filed outside the 42 day appeal script purchaseorder also must be com differs from subdivision (d) in that the period. See Alabama State Tenure pleted and distributed and the parties agree on the statement prior to Comm'n v. Singleton, 475 So. 2d 186 estimated cost of the transcript paid to approvalby the trial courL (Ala.1985). the court reporter within seven days of A partydesiring to appeal when the evi Security for costs on appeal (Ala. R. filing the notice of appeal. Ala. R. App. dencewas not transcribed is, as a practi App.P. 7), an appellatedocketing state P. 10(b)(2).Again, if a transcript of less cal matter. at the mercyof the trial court ment (Ala. R. App. P. 3(e)), and the than all of the proceedingsis ordered, a and the opposingparty . It is unlikelythat $100 docketingfee (Ala.R. App.P. 12(a)) statement of the issues to be raised on either the opposing party or the trial shouldbe filed with U1enotice or appeal. appeal also must be served on the court will approvea statement of the evi A sufficient number of copies must be appellee. On the day the transcript pur dence that does not support the judg. filed to allow the clerk of the trial court chase order is received, the court ment entered. Thus. it always is advisable lo serve the clerk or the appellatecourt, reporter must complete the portion of to see that a courl reporter is present to the court reporter, and counsel of the order form cerlifyif!j!receipt of the record the proceedings. record for each party to the appeal (or estimated cost. The appellee has seven Failure to timely file the security for the part ies themselves, if pro se). days from service of the transcript pur costs. a docketingstatement, a designa Although the trial court clerk must chase 11rderto designate any additional tion of the record or a lranscripl pur· serve a copy of the notice of appeal on portions of the proceedings that he chase order is not a jur isdictionalde feel. all parties, Ala. R. App. P 3(d)(l) now deems necessaryand to pay the reporter However.the appeal may be dismissed requires that the appellant also serve the estimatedcosts of those portions. At if any deficiency in this regard is not copies of the notice of appeal on all any-time. the appellee may apply to the corrected. See Holt 11.State, 361 So. 2d adverse parties. The primary purpose of trial court for an order requiring that 348 (Ala. 1978). Failure to file a docket· the notice provision is to prevent the the appellant reimburse U1e appelleefor ing statementalso may be treatedas con 14-day cross-appeal period from run any or all of the payment made to the tempt of court. Moreover, it is the ning before other parties learn of the fil. court reporter. appellant's responsibilityto see that the ing of the notice of appeal. If U1etestimony presented to the trial record is prepared and filed In a timely Designationof the recordon appeal court was not transcribed,an effort must manner , and the appeal may be dis - Within seven days of rilingthe notice be made to supply a statement of the missed if the appellant does not do so. of appeal the appellantmust filewith the evidencepursuant to Ala. R. App. P. 10 See Ala. R. App.P. 12 (cl ('·Dismissal for clerk of the tria l court and serve on or there is nothing to reviewon appeal. failure of appellant to cause time ly appelleea written designationof the por· Rule JO provides two mechanisms for completion of record"). tions of the clerk's record which should creatinga record or the evidencepresent Note: The AppellateDocketing State be included in the record on appeal. ed. Subdivision(d) perniits the appellant ment (Form ARAP24 or 25) and the Ala. R. App.P. lO(b)(J ). If the appeal is to prepare a statement of the evidence Transcript Purchase Order (Form ARAP from a summaryjudgment , the appellant from Lhebest availablemeans , including lA) may be obtained from the circuit must designate any depositions which the attorney's recollection.The statement court clerk's officeor the Administrative are to be included in the record. lf less must be served on the appellee within Officeof Courts.A printed Notice of Appeal than all of the record is designated,the seven days after the filing of the notice form (Form ARAP-1) also is available, appellant also must serve a statement of of appeal. The appellee has seven days to which form incorporates the notice or the issues he intends to present on serveobjections or proposeamendments. appeal,security for costs. designation of appeal. The appellee then has seven after which time U1e statement and the record and supersedeasbond. days irom service of Lhedesignation to objectionsor amendments must be sub- Preparation of the recorili The rules TE.EPHONE FACSIMILE (205) 323-91l l (205) 326-2316 RichardWilson & Associates ANNA LEE GIATilNA Registered Professional AITO RNEY • MEMBER OF Al.ASAMAB AR SINCE 1987 Court Reporters Anni! Lc,e OlattttU'l.P.C~ TI,e Pl~ Building at MaJ;:0'11i9O ffice Pnrk 804 $. Perry SlreeL Suite 218 · Zl 12 Elcvcnih t\, ·enut South Montgomery, Alabama 36104 8innlngh•n1,t\ l,bom• 3,205 ,.._.Rl3StAJtal ____• Mll!FWRITISG • ...,1.,.;---1o...-.i._• WE311.AW • AS'S ...... ISTAN CE ....__,..... l~'CASE1'1lEl'ARATION ..._ ..._. 264-6433 306 / SEPTEMBER1995 THEALABAJ."IALAWYER allow the lrinl court clerk 28 days to of their briefs. The record should be re musl be attached lo demonstrate that assemblethe clerk's record. The clerk's Lriewdfrom the clerk's officein a time those parlions were de$ignatedlo be in record includes the docket entries. ly manner after receivingthe certificate cludedin the record.If not ruled upon by pleadingsand exhibitslo the extent des of completion.and counselshould ,evie,., the trial court within 14 days.a motion ignated by the parties. The clerk must the recordas 5000 as possibleafter receiv lo supplement is deemed denied. With file a certificate of completion or the ing it. If something is Jenout. the par in SC\'ffl days or the denial or a motion clerk·s record within 28 days or the fil. ties may stipulate what action should be to supplement (or th, date it is deemed ing of the notice of appeal, unless the takento corrector supplementthe record. denied), the dissatisfiedparty may seek lime period ls extended by order of the I lowever,if the p3rties cannot agree, the relief in the appellate courL trial court. The trial court may grant appellanth as only l 4 days from the date The running or the time for filing only lwo seven-dayextensions ror com of the certificate of completion or the briefs Is not Lolled during the pendency pletion of the clerk's record. Further recordo n appeal in whichto mea motion of a motion to supplement or during the extension~ must be sought in the appel wllh the trial court to supplement or time period a supplemental record is late court. correct the record on ijppeal. The appel beingprepared, unless t he appellate court The court reporter must complete lee has only 14 days from the filing of so orders on mollon of a party or on its and file any orderedportions of the tran· appellant's brier to file such a motion. own initialiw.See Ala. R. App.P. 10(0(1). script of the proceedingswithin 56 days The record may be supplemented to Exhibitsthat cannot be copiedmay be of the filing or the notice of appeal.The include onl)• those matters that origi ~nt to the appellate court in a separate trial court may grant up to four se"en nallywere designated by the parties. See containeror they simplymay be referred day extensions for completion of the Ala.R. App. P. IO(f)("ifadmitted or offered lo in the record (i.e. Plaintiffs exhibit 2 transcript. Furthu extensionsmust be evidencethat is material to any issue on was incapableof being copied). If over sought from the appellatecourt. appeal is omitted from the record afler sized exhibit~were offeredinto evidence The clerk then has seven days to being desig11alionfor inclusio11as re and either p;irty would like the court to compile the record on appeal, consist quifl!d in l?ule IO{b).. ." motion to sup see those exhibits, he should consider Ing of Lhe clerk's record and the plement or correct the record may be filing b ms otion to ubstitute a regular reporter's transcript (i[ a transcript was filed). If a motion to supplement wilh sized copy of Lhee xhibit lo be included ordered).Th e clerk's filing in U1e appel portions of the transcript is flied. a copy in the record. Thal motion should be late court or a Ce1•lllicate of Completion of the original transcript purchase order filedwilh the trioI court beforeth e clerk's or Record on Appenlbegins the briefing schedule. The record:Rule l l(al(3),Ala. R. App. P .. requires that the clerk makethe record aV3ilableLo the parties for preparation Rhonda Pitts Chambers National --ow,_,• a \986 g,aaam al JudoooCologoond. Co u rt t089~ofQ,n bet-Sdloolof !Aw Reporting She has IUllned .....,.... out logalanocles aro DOfVOdas as.socia1eeo,. One or Alabama's oldest Court Reporting Compan.ies torol 1hoi\l7WICM Jour. Ml ol TMIAdvocacy Featuring: ~"" 1987-119 She lo on -IOI,\ ... B,,rmgtan llrrnof A,,.,. & Discovery ZX Nationwide Reporting w-- _.,, end•·-h••-of,_~...,,....-., ... - Oscar Condensed Depositions ASCII Disks -onllle-"-tof~- Video Tape Recording AMlCUS Debo,ah Alley Smith 252-6205 24 Hour Birmin gham Number -of.,.0eccnn-.- e.mw,g.... ,-r,moflwes& 1-800-638-3917 • FAX: 252-6392 od lrornthe Unr.-ers1ty QI 6U1 'V Tl IP.Al.i\BI\MA t.AWYER SEP'l'EMBER1995 / 307 record is completed. If necessary. a cerned that the judgment may become the supreme court within 14 days after motion lo have the original exhibittrans uncollectiole or the status quo may be the entry of the interlocutory order. A mitted to the courl may be filed with altered in some other respect during $50 docketingfee must be filed with the the appellate court. Ala. R. App.P . 13. the 30 days, he may seek relief from the petition. If permissionto appeal is grant Within 14 days of the filingof the cer trial court. Rule 62 allows execution to ed, the case proceedsin the same man tlficate of completion of the record on issue and proceedingsto oe commenced ner as any other appeal. The petitloner appeal, lhe appellant must file with the to enforce the judgment during the 30- (now the appellant) must me security for clerk of the appellatecourt, a copyof the day period "by order of the court for costs,a docketingstatement and an addi entire record. The appellant is responsi· good cause shown." See Ala. Code S 6- tionalS50 docketingfee with the supreme ble for ordering and paying for the sec 9.22 ("execution may be issued by leave court.A noticeof appealn eed not be filed. ond copy of the record. However, you of the court before the time prescribed Appeals of interlocutoryorders are lim should alwayscheck with the clerk of the in the AlabamaRules of Civil Procedure ited to those civil cases which are with trial cou,t about the second copy. In for issuing of executions, the plaintiff, in the original jurisdictionof the supreme some circuits. the clerk will make the his agent or attorney showing sufficiept' court. Interlocutory appeals cannot be second copy and send it to the appellate cause thereforj)}"affidavit"); Al a. Cod~S flied in the court of civilappeals. court. In other circuits, the appellant 6-9-23 ("011affidavit being made and filed must arrange for the copy to oe made that the defendant is-aboutfra udulenUy Briefs: The filing of the certiricate of and see that it is delivered to the clerk to disposeof or remove lii.sprope,rtY and completion or the record on appeal by of the appellatecourt. that the plaintiff"~LI prbbably lose his the trial court clerk begins the briefing Security: How do you protect your debt, the clerk or register must issue schedule. The appellanthas 28 dayswith client during the pendencyof post-trial execution agai~t the p,roperty of the in which to file his initial brief,U1e appel· motions or appeal? Rule 62. Ala. R. Civ. defendant.'') lee has 21 days within which lo respond. P., providesan automatic stay of execu The automatlc stay expires after 30 and the appellant then has 14 days with tion for 30 days after the entry of judg days,but Rule 62(b)allows the trial court in which to file a reply brief. Both the ment in most circumstances.See Ala. R. in its discretion to stay executiondur ing appellant and lhe appellee can obtain Civ.P. 62 (a) (the automaticstay does not the pendency of the post-judgment one seven-dayextension. If the appellant apply in some circumstances, such as motions "on such conditions for the is granted an extensionfor filingh is prin actions for injunctions and in receiver security of the adverseparty as are prop cipal brief, he cannot obtain an exten ship actions). However, if a party is con- er." Thus, the appellee may request that sio n for filing his reply brief. the court require that a bond be posted "Extraordinary good cause" must be or some other security be providedas a shown to obtain additional extensions. condition of granting a stay. : ::::::::TED DASHER& Once the post-judgment motions are Deflection:A la. CodeB 12-2-7 permits overruled, a supersedeas bond in the the supreme court to transferor "deflect'' ~ ASSOCIATES amount of 125 percent of the judgment certain cases within its jur isdiction to (150 percent if the judgment is Sl0,000 the court of civil appeals. The supreme HEWLETT-PACKARD or less) is required in order to stay exe court cannot transfer cases presenting a COMPUTERSI PERIPHERALS I REPAIRS cution while the case is on appeal. Ala. substantial question of federal or slate R. Civ.P. 62(d);Ala. R. App.P . 8. The stay constitutional law. cases involving a A COMPLETELINE OF USEDAND is effective upon approval of the bond REFURBISHEDHP EQUIPMENT novel legal question, utility rate cases, by lhe clerk of the trial court. oond validation cases or Alabama State TO FILLALL OFYOUR Bar disciplinary proceedings.Cases that COMPUTERREQUIREMENTS. Interlocutory Appeals:A la. R. App.P. the supreme court can transfer include LASERPRIN TERS,SCAN NERS,DISK DRIVES , 5 permits a party to request permission (1) cases involving an amount of con DESKJETPRI NTERS,PLOTTERS, PC'S AND to appeal from an interlocutory order troversyof $50,000or less, regardlessof 9000SERIES WORKSTA TIONSARE READY under certain limited circumstances. In the basis or the claim appealed;(2) case.~ FORI MMEDIATEDELIVERY . CALL OUR order to file a petition for permission to in which the disp0sitivelega l issue turns TOLLFREE NUMBER FOR AVAILAS ILITY appeal, the trial court must certify the on post-judgment enforcement proce ANDPR ICING. interlocutoryorder. The trial court's cer dures, including garnishments and exe A FULLYSTAFFED REPAIR tificationmust state that in U1e opinion cutions; cases in which the dispositive DEPARTMENTISALSO AVAILABLE FOR of the trial court the order involves a legal issue turns on commercialcontrac t ALL OF YOURPRINTER I PLOTTER controlling question of law as to which law; and rases in which the dispositive SER~CENEEDS . there is substantialground for difference legal issue turns on real property law. 4117 2ND AVENUE SOUTH of opinion, that an immediate appeal Asthe number of appeals increases every BIRMINGHAM , AL 35222 from the order would materiallyadvance year, the supreme court likely will de the ultimate termination of the litigation Reel more and more cases. particularly S00 - 638 - 4833 and that an appeal would avoidprotract given the increase in the number of 205-59:J.. - 4747 ed and expensivelitigation. The petitlon judges on the court of civil appeals. Thus, for penmissionto appeal must be filed in FAX 59:J.. - I.108 if a case fallsw ithin one of the categories 308 / Sl~PTEMBER1995 THEALABAMA LAWYER to be consideredfor tTans Tl IE ALABAMALAWYER SEPTEMBER1995 1309 The Alobomo Sto le Boris pteosed lo moko ovoiloble lo ind ivlduol o ll orneys. firms ond locol bor ossoclo llons. ol cost on ly. o series ol brochures on o voriely ol legol topics ol inlereJI to lhe gonorol public. Below is o cu rrent listing of public inf01mation brochures available from the Alobomo Stole Bar fOt distribulion by local bor ossociotions. under esloblishod guidelines. PUBLICATIONS LAWYERSAN P LEGALFEES $ 7.00I PER too QTY_ $_ ._ .... o summory ol basic lnformolion on common legol questions ond procedures for the generol public. LASTW ILL & TESTAMENT $ 7.00IPER 100 QTY_ $_._ .... covers ospects ol estate plonn ing ond the lmportonce ol hovlng a will. LEGALA SPECTSOF DIVORCE $ 7.00I PER 100 QTY_ $__ ._ .... o flers op tions ond choices involved In divor ce. CONSUMER FINANCES $ 7 .OOIPERt 00 QTY_ $__ ._ QI "BUYING ON UME;" .•.. outlines lmportont considerotions ond provides odvice on finonclal molters aflecting the lndlvlduol or tomily. '' ' ACRYLIC BROCHURES TAND ' ' ' ,$ 4.00I EACH QTY_ $__ ._ .... individual stand Imp rinted with your' ba r ossoc iallon nome for use ol distribution points. One s1ond per brochure Is recommonded. NAME TO IMPRINT: Subtotol $__ ._ MAILING ADDRESS: Shipping & Hondllng 5.00 TOTAL $_._ Pleose remit CHECK OR MONEY ORDERMADE PAYABLEfO THEALABAMA SfATE BARlor the omounl listed on the IOTAL line ond lorword ii with lhls order form lo : Suson H. Andres. Direc tor of Communicolions Atobomo Stole Bor P.O. Box 671 Montgome ry. AL 3610 1 (33~) 269- 1515 310 I SEPTEMBER199 5 TJIEALABAMA LJ\ WYER YOUNGLAWYERS ' SECTION By Alfred F.S,nUh, Jr. oney, money. money." profession.As s uch, I believemore senior section's internal proceduresand guide That is how a recent attorneys havean obligation to aid in the lines, to slrenglhen our lies with the hearing before a Federal training and developmentof younger local young lawyers'o rganizations and judge began. Before lawyers,even lhough training is not Lheslate bar. and lo continue the educa eitherattomey h.'ld begun alwayscost -effectivein the short term. tional and pubI ic service projects with ID which we have been involvedover the to speak. the esteemed judge cried out Conversely,young lawyerssho uld seek from lhe bench."Money. money, money mentors who nre concernedwith teach last fewyears. The 1995-96 Executive if I have lo hear this motion, someone is ing legal skills and elhi~. not just mar Committeemembers are listed below. going to p:1ymon,')'." The judge, obvious keting_ Youshould (eel free to contact any or ly upset with the attorneys' repeattd dis these peoplewith any concernsyou have. covery disputes, gave notice from the start that he thought the motion could and should be resolvedby the attorneys 1995-96 EXECUTIVE COM1\ffITEE without the Court's involvemenL The Andy0 . Birchfield.Jr .. judge then questionedwhether the attor Montgomery • President-Elect neys had discussed the matter prior to Robert J. Hedge, the hearing.Th e attomeys confessedthey Mobile • Secretary had not. Incredib ly, however, they Gordon G. Annstrong, launched into their arguments on the Mobile • Treasurer motion. The attorneys apparently did not understand the signals being given Thomas 8 . Albritton. Andulusia them by the judge. In the end, someone Cynthia Lee Almond, Tuscaloosa paid some money. Charles L Anderson.Montgomery It is important for us as lawversto rec ogniu the signalsbeing given to us. This Melanie~ lerkle Bass, Birmingham is particularlytrue for young lawyers.We Alfr ed F. Sm ith , Jr. DavidA. Elliott. Birmingham hear more senoc)rattorneys complain that Denise A. Ferguson, Huntsville )'Ounglawyers today are too contentious MichaelO. l"rteman.Birmingham and ha,'Ctaken lht fun out of practicing law.Perhaps we should listen to the sig Mentoring is at the heart of a project Fred 0. C~, Jr., Tuskegee nals of our more e.~periencedcolleagues. started recentlyby the North Carolina Chrislopher 8. Harmon, Binningham Training youngla~rs is an important YoungLawycrsr Section called "Silent Bryan K. Horsley, Montgomery issue for Lhe entire bar, and will be one Partners." The bar assignedfirst-yea r Christopher J. liul(hes, Montgomery of our section'spriorities this year.Young lawyersl o experiencedatl orneysthrough lawyersseem Lohave more demandson out the slate. l'or the first year of prac Candis A. McGowan,/Jirmingham them, bul with less opportunity for real tice, lhe new lawyercou ld call her silent MichaelD. Mulvaney, Birmingham training. than our senior counterparts partner confidentiallyfor adviceon any John ti . Nalhan, Binnillgham had. Asa result, young lawversfrequent topic. The programwas a tremendous ly find themselvesin situationsfor which succes.~. and lhis Augustwon an award J. Colt Portia, Montgomery they arc ill-prf!P,'lred.But if youngJ.n,~-ers at the annual meeting of the Young ArchibaldT. ReevesIV. Mobile are not learningthe principlesof la\\)'l?r LawytrsDivision o( lhe AmericanBar Christopher A. Smith, Florence ing and profes.\ionalismadequately. it is Associationin Chicago.This ~ear the ElizabethC. Smithart. lfnion Springs in part becausethey havenot been trained AlabamaYLS will be lookinginto similar Jacob A. Walker OI, Opelika properlyby more senior attorneys.Vir projectsto assistAlab.1ma )'Oung lawyers. tuallyevery respectedattorney I know It is my pleuure to sel\leas president Judson W. Wells, Mobile recallsfondly n mentor or mentors. Prac orLhe YI..Sror the 1995-1996 term. The • ticing law is complicated and dynamic. job is made much easierby 1he goodwork Since lnwschools i:tenerally do not pre of my predecessor.Hal West,to whom Stnith 11 a partn0ra , Boinbf!dgo, Mims Rogers& pare students for lhe practice of law,we the section owesn debt of gratitude. Our Smni,In S.1mlr'q,nm.Atebnma H u~ u 1986gn1du· all de1iendon others lo help us learn the goals ror lhis year will be to improvethe ntooc lho U~111rv ol AltlbomaSchoof oJ Law Tl IE ALABAMA1.AWYER SEM'EMBER1995 / 3 11 DISCIPLINARYRE PORT Sunender of Ucenses disciplinewhich often includedinstances of his refusalto coop • WalkerCounty attorney M arlin B. Mad..aughlin \'Oluntarily erate in the investigationof grievancesfiltd against him. (ASB surrendered hls license to practice Jaweffecti,-e M ay 26. 1995. No.93.0171 The order from the Supreme Court oi Alabiunaw as entered on • On June 9. 1995,the DisciplinaryCom mission of the Alaba June 22. J995. IASJ3No. 95-099 ] ma State Bar ordered that Mobile aUomcy 1'hom.as EarleBl')'3.nL • On June 14. 1995,O pelika attorney John Snow Throwl!r, Jr. Jr. be interimly suspended from the practice of Jawi n the State voluntarily surrendered his license to practice law. Accordingly, of Alabamapursuant to Rule 20 of the Rules of Disciplinary on June 29. 1995, the Supreme Court of Alabama entered an Procedure. [Rule20( a); Pet. No.95-03 1 order cancelling his privilege to practice law in all the courts • On June 21. 1995. Huntsville nttorney Barbara C. Millerwas of the State of Alabama, and further ordered that his n.,me be suspended from the practice of law for a periodof 90 days effec stricken from the roll or attorneys in this state. Under Rule 28 tiveJun e 19.1995. This suspension \\" Child Support Calculator Sofiwnrefor IBM compatible computers. Cilculatcs Guideline child support and pri nts a.II forms rec1uired uy A1UA Rul.e !12 on plain paper with information filled in. Casessaved to and retrieve d from disk. AD HR Day Car e amounts can l>e use r updated . Calculate s inter est on child support arrearage . Easy lo use menu s. Cont ext sensitive help. $99 .SO Shipping included . 14 day free trial. Financial Calculator Soll wore tor IBM compatib le computers. Performs 9 financial ca.lculations use ·, s +s, i Simple Logic, Inc. P.O . Box 110, Allgood, AL 350 13 e,lss,,, Ph one: 205/625 -4 777 Fax: 205/27'1-0 178 312 / Sl~P'l'EMBER 1995 TME ALABAMALAWYER RECENTDECISIONS By DAVID8. BYRNE,JR., WILBURG. SILBERMANand DEBORAHALLEY SMITH Chief Justice Rehnquist dissented, UNITED STATES The DoubleJeop.1.rdy Clause of the fifth joined by Jwtices O'Connorand Souter. Amendmentprohibib successiveprose SUPREME COURT - cutions or multiple punishment for the CRIMINAL Commonlaw ' knockand announce ru.le' "same offense."Th is case,w hich involves forms par! of Fourth Amendment's application of the United States Senlenc· Title 18, ~1001 does not extend lo reasonablenessInquiry ing Guidelines. raises the issue of courts. thereby o,~rruling U11ited States whether court violates the Double Wilson v. Arkansas. Case No. 94- a 11. Bramblett, 348 U.S. 503 ( 1955) 5707, 63 us LW4456 (May23. 1995). Is JeopardyC lause by convicting and sen Hubbard11. U1111ed Stales, Case No. 94- the common law praclice of requiring tencing a defendant for a crime when 172,63 USLW 4393 (May15. 1995).Does policeto knockand announcetheir pres the conduct underlyingthat offensehas Tille 18, §/(}()/,which makesila crime ence before entering a residencewith a been considered in determining the lo make falsesta tements "in any matter court warrant to conducta searchgener defendant'ssentence for a previouscon viction. within lhe jurisdiction of any depart ally requiredby the fourth Amendment? ment or agency of the United Stales," A unanimousSupttmt Courtsaid }oes . Wille pleadedguilty LO a federalmari applyto unswom p.ipersfiled in a bank Justice Thomas,writing for the Court, juana char'l(e.A pre•senlencerep0rl cal ruptcy court? The Supreme Court said said, "Given the longstandingcommon culated the base offenselevel under the no by a six-to-threevote. law endorsement of Lhepractice of an United Stales Sentencing Guidelines by Ledby Justice Stevens.the Court over nouncement, we have little doubt that aggregMingthe total quantity or drugs turned its 1955decision in UnitedStates the framers of the Pourth Amendment involved, ni;>Ionly in Wilie's offenseof u. Bramble/I, ,148U.S. 503 (1955)t hat thought that the method of an officer's had designated n court as a department entry into a dwelling was among the fac of the United SUttes. The 1955 ruling tors to be considered in assessing the "must be acknowledged as a seriously reasonableness or a search or seizure." 1995 Raweddecision." Justice Stevenssaid. "In The Coun further reasoned that an ordinaryparlance, federal courts are not officer'sunannounced entry Into a home DIRECTORIES describedas departments or agenciesof mig,ht,in some circumstinces,be unrea the government." sonable under the Fourth Amendment. AREIN! Hubbard 's falsehoods in unsworn In e\oaluatingthe scopeof the coristitu papers filedin a federalbankruptcy court tional right to be secure in one's home, promptedhis indictmentunckr 18 U.S.C. the Supreme Court looked to the lTadi § /O(JJ which criminalizes false slale tional protection against unreasonable Members - S25 each ments and similar misconduct occuT searches and seizures afforded by the Non-Me mbers - $40 each ring "in any matterwithin the jurisdiction common law at the time of the writing of any departmentor agencyof the Unit of the Constitution. ed States." I lubbard was convictedafter Mowever,it is iml)Orlanl to note that lhe district court. relying on United Stoles the common law principle (knock and MAIL CHECK TO : u. Bramble/I. instructed lhe jur)' that a announce) was never stated as an innex bankruptcy court is a department of the ible rule requiring announcement under Alabama Bar Directories Uniled St.ites within Lhe meaning of§ J(}()J. all circumstances.Clear ly. there can be Justice Stevens reasoned that "under countervailing law enforcement con P.O. Box 4156 both a common,sense reading and the cerns, including,e.g .. Lhreal of physical terms of 18 U.S.C.§6 - which appliesto hann to p01ice,hot pursuit, or the exis, Montgomery, Al 36101 all or Title 18 and defines •agency' 10 tence of reason to believethat the fruits include. inter alia, any federal 'depart or iristrumenlalities of a crime would ment, independentestablishment, com likelybe deslTo>oed. mL<1Sion.administration. authority. board Include street address - or bureau' - it seems ,ncontrovertible that ·agency'does not rere,rto a court: Senten ce consideration or relevenl we ship by UPS! Justice Scali,1filed a concurring opin conduct does not trigger double Jeop ion,and joined by Justice Kennedy.agreed ardy 1>rovi5Jons of fiflh nmendmeol Orders must be pre-paid that UnitedStn tes u. /Jramble/1 should Wille u. United Stales, Case No. 94- be overruled. 6187, 63 US 1,W 4576 (June 14, 1995). 1'1IE AL.\BAMAI.AWYER SEl'TI::MBER1995 / 3 13 United States District Court, Northern District of Alabama Magistrate Judge Position The current term of the office of United States Magistrate Judge Paul W. Greene at Huntsville , Alabama is due to expire January 20, 1996. The United States District Court is required by law to establis h a panel of citizens to consider the reappoi nt ment of the magistrate judge to a new eight -year term . The duties of a magistrate judge position include the following: (1) cond ucting most preliminary proceed ings in criminal cases, such as initial appearances , bond and detention hearings , and arraignments ; (2) the trial and disposition of misde meanor cases ; (3) conducting various pretrial matters and evidentiary proceed ings on reference from the judges of the district court , including civil discovery and other non-dispositive motions ; (4) conducting preliminary reviews and making recommen dations regarding the disposition of prisoner civil rights complaints and habeas cor pus petitions ; and (5) trial and disposition of civil cases upon consent of the litigants . Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the court and shou ld be directed to: Perry D. Mathis, Clerk U.S. District Court Northern District of Alabama Room 140, 1729 5th Avenue, North Birmingham , Alabama 35203 Comments must be received no later than Friday, October 13, 1995. 314 / SEPTEMBER199 5 THI~ALABAMA LAWYER CO!l\!iction.but also in unchargtd crim Williams 11. Oklahoma. 358 U.S. 576 inal conduct in which he had engaged ()959). Justice Sandra Day O'Connor, RECENT BANKRUPTCY wiU1several co-conspirators. The result writing for the majority, held lhal "lhe DECISIONS in guideline range was higher than il J>ifthAmendme nt's Double Jeopardy would have been if only the drugs in Clausedoes not bar prosecutionof a de Eleventh Circuit denies jurisdiction of volved in his conviction had been con fendant for criminal activity that was lower court s on claim of Chapter 7 sidered, but il still ftll within the scope treated, In prior sentencing proceeding debtors for tortlous interference with of the legislatively authorized pe.nalty. as 'relevant conduct,' under§ 181.3 of conlnct to sell their home The trial court acceptedthe PSI in sen the Federal Sentencing Guidelines, and, Community Bank of Homestead u. tencing Witte, concluding that the olher as such, inRuence the sentencingco urt's Daniel Boone and Sara Boone. 27 offenseswere part of a continuing con determination of sentence within leg B.C.D. 372, 52 r.3d 958, (11th Cir. May spl racy that should be taken into islatively prescribed range for offenses 23, 1995). Debtors pre-petition had account t.mdtt !ht gulddinesas "releva/ll of conviction." The Court further rea mortgaged their residence lo the bank. conduct• See§ 181.1. soned that lhe Sentencing Guidelines, The mortgage contained a dragnet WhenW itte wassubseque ntly indicted which envision but do not require that clause which, in addition lo the mort· for conspiring ,mclallem pting lo import offenders be sentenced in a single pro gage loan, also secured any future debls cocaine, he moved to dismiss the ceeding for all related offenses, do not to the bank. Debtors had guaranteed a charges. arguing lhal he had already forbid impositionof a sentence for con corporateloan. The corporate loan went bun punished for the offensesbecause duct that was considered u relevant into default around the same time that cocainehad been considered as "rele conduct in a prior sentencing procetd debtors entered into a contract lo sell vnnt conduct'' al his marijuana sentenc ing. In such an event, the sentencing their home, boU, events being approxi ing. court has Lhe authority to prevent a mately one week prior Lo filing a Chap The trial court dismissed the indict sentence from being grossly increased ter 7 petition. The bank, post-petition, ment on double jeopardy grounds. but by separate prosecutions, either by sent an estoppel letter claiming pro the Court of Appeals reversed relying applying principles on concurrent and cteds from the sale. The amount upon the Supreme Court's decision in consecutive sentences set out in the claimed included the debt owing by rea guidelines, § SCJ.3. or by departing son of lhe guarant)I.The estoppel leuer from the sentence range prescl'ibed by prevented the closing; consequently Dav id a. the guidelinesas permitted by /8 U.S.C. debtors filed a suil in bankruptcy court Byrne , Jr. § 3553(b)and§ SK2.0. claiming damages for tortious interfer °"""...,..& By,no ,)I • 0 ence "ith the contract of sale. The bank 11'""',iU"'___ "" -· contended that there wasno bankruptcy ,,.,__,.. Late but safe undorgraclJate encl law Carlo/11.!11. Fordiat, Case No . 94-6790, jurisdictionowr the stale lawtort claim. degrees. He 11n mom· _ US LW_ (May29, 1995). Can a The bank appealed from the judgment bor ol lllOMor< gome,y firmof- & BI IN< state inmate serving consecutive sen in favor of the debtors. The district e,ld C04f'I. d,e crll'IWV.lf tences challenge, in a federal court, a court affirmed. holding that the bnnk convictionfor which he alreadyhas com ruptq • court had jurisdiction because - pletedthe sentence?The SupremeCourt the claim arose in lhe bankruptcy case. WIibur G, answeredyes by a seven-lo-twovote. In reversing Uw district court ruling. SIiberman Juslice Ginsburg held that such the EleventhCircuit stated that the Lest WdbUrG.. Sit. tmo,,, al inmates are "in custody" for the convic for determining relation to bankruptcy ..,~flrmol tion even when that individualsentence of a civilaction is whether lhe outcome ...,,_ &a-. .,. is completed.Justice Ginsburg's opinion has any effecton the administration of -·- relies htavily on lhe Court's 1968ruling th e estate in bankruptcy. Citing 28 U.S.C. §1334(b) as to civil proceedings --d-Unlve..ay ol lll,iboma in Peyton v. Rowe,391 U.S. 54 (1968), --thland eamed 111.w arising under Tille 11 or arising from or his de· lhal held that conseculive sentences g,oo r,omtho Unl\lof». should be treated as a continuous series related to a case under Title 11. the IY'•Sc:hoal ol lJrw Hf for purposesof habeascorpw r~ief. court stated that as the alleged lOrt dtc,scr,s In Pevton. an inmate serving consec arose after the petition in bankruptcy, -----uti\-esentences was allowedlo challenge the cause of action was not property of Debo rah a convict ion even though he had not the eslale but only that of the debtors Alley Smith begun serving the sentence. Applying individually. ll inferred that the result DeborahAll oy Sm/I/\.. that ralionale to the other end of the might be different under Chapter l I or · -cllhotllm> iOOt""".... cl_, spectrum. Justice Cinsburg reasoned, 13. or even in Chapter 7, should thtre -snovr •we will not now adopt a different con be t!Videnceof non-dischargeable unse· ec1....,,,.~ cured claims of the bank, for in such atT~Wldt• struction simply because the sentence -hellawdtg!M imposed under the challenged convic instances a favorable result would be ltom lhe Unl\lGnllt','c,I beneficialto pre-petition creditors. The Al•bama Schoolol tion lies in the past rather than in the Law future." court further rejected the arg11menl THE ALABAMALAWYER SEPTEMBER1995 / 315 that the torlious interference claim con F.3d 1330, 27 B.C.D. 399, (5th Cir. June such party hllSbeen appointed and (2) is stituted an adjwtment of lhe debtor/ cred 1, 1995).The plan or liquidation provid a representative of the eslale. To prove itor relationshipunder 28 §157(b)(2)(0), ed for authority to the liquidatingtrustee lhal the lru5lee is a repr~nlalive of the by stating that lhe claim had no effect to assert a list of certain avoidance estale, lhe court musl determi ne on the estate. actions. No case trustee was appointed whether a successful recovery by such COMMENT: The alleged tort was under § 11 04, but the plan created the appointee would benefil the debtor's basedupon Florida law. It is curious I.hat position of liquidating trustee under unsecured creditors. After determining oeither lhe caplion of the case nor the §I 123(b)(3)(8) which provided for a this In the affirmative, the court then opinion mentions the trustee who, rather tr.insfer of avoidance powers t.o a party considered whether the plan allowedthe than the debtor, seemingly should have other Lhan the debtor. The liquidating liquidating trustee to lake aclion against contendedlhat the claim belongedLo the tru stee brought a post-confirmation the specific defendant, McFarland, who estate. Conversely, why did the debtors fraudulent conveyance action against had not been nnmed in the plan's list or not contend that the claim, having arisen McFarlandwho claimed that because no conlemplaled t,ct ions. In reaching its post-petition. was the property of the alleged cause or action was mentioned conclusion thnt the liquidating trustee debtor? in the plan. the liquidating trustee had had standing, the court said that as a no standing lo iniliale the action. matter or interpretation of the plan or Under approved plan or reorganization. The bankruplcy court's judgment for reorganization,if Lhereis ambiguity, lhe liquidating trustee had authority 10 the trustee was affirmedby lhe districl intent of the parties controls. The court institu.te l\'Oidimce action on behaU of court, and McFarland appealed to the found that the bankruptcy court in unsecured crediton F'iflhCircuiL The appellate court initial employing parol evidence to determine McFarland 11. /.l!gh (In re Matter of ly held, with respecl to the lrustee's the intent of the plan proponent found Texas Central Petroleum Corp.), 52 standing. that it must be shown lhal (I) it proper to allOl\•lhe liquidatingtrustee acling on behalfof unsecured creditors to assert the avoidance action againsl McFarland. The next questions were whether the bankruptcyco urt had the power to adju dicate the fraudule11lco nveyance action, and whether there was a right to a jury Why6,000 trial. The court deter mined that although McFarland may have been originally entitled to an Article UI court. Lawyersuse he had consented to the bankruptcy court's entry or a final judgment by not Chap7•• 13 objecting to the bankruptcy cour t's assull1J)lionof core jurisdiction. As to enti· * Iles, TypeSe1 loolc m lbnkn1p1cy Forms tlement lo a jury trial, il said that * F:i,,IC$1,friendlies! softw:1re because of a stipulation entered into * The only software w,th bu,h-,n l111olhgC111lllclp. between the parties and lhe failure of Mcf'arlnnd lo present such an issue to Automatic Plan Or:ifting. 54 cu~mm * the trial court, McFarland wasnow pre plans 10 satisfy all di.stricl• cluded from a right lo a jury Lrial. * Filing check-lists, client questionnaire CO~li\lENT:There is a large mouthful * Matrix -on-disk versio ns for all couns in Lhis ca.se.Pr obably the appellate court th31 mke them. could have gone eilher way in its deci DEMODISK • REFERENCES sion. ll furnished its reason for rejecting MONEYBACK GUARANTU precedent because or waiver on lhe part of lhe defendanl An}'Onewishing an Arti CALL800 BEST-7-13 cle Ill court or a jury trial must be care ful in pre-trial procedureand agreements & CHAP7tt 13 lo make sure lo preservethe righL SpecialtySof tware Continuation of review of 1994 Amendments 1111S. Woodwurd • Royol Ook , Mich.48067 Some glitchesin 1994 amendments Section 552 ls n section on the post petition effect of secur ity inlerests. A new su bsection (b)(2) was inse rted, 316 / SEPTEMBER 1995 Tl IE ALABAMALAWYER reading as foll ows: Co. v. Insurance Co. of North America, effect to the statutory requirement that ll lf the debtor and an entity MS. 1930617 (March 31, 1995), the an insurer delivera copyof the insurance entered into a security agreement Alabama Supreme Court responded to policyto the insured, it should recognize before the commencement of the two certified questions from lhe United an exception to the longstanding rule case and if the security interest States District Court for the MiddleDis againsten largingth e coverageof an insur created by such security agree trict of Alabama. ance policy by estoppel. ment extends to property of the Brown Machine Works had entered Reviewing statutes and cases from debtor acquired before the com into a contract with Texas Corporate several other juris dictions, the courl mencement of the case and to Aircraft Sales (TCAS), pursuant to found that the clear weight of persua amounts paid as rents of such which TCASwas to attempt to sell an sive authority recognizes that where an proper ty or the fees, charges , airplane owned by Brown. TCAS took insur er fails to deliver the policy in accounts, or other payments for possession of the airplane in exchange accordance with a statutory require the use or occupancyof rooms and for a post-dated check in the amount of ment, the insurer may be estopped other public facilities in hotels, $100,000. The parties agreed that if from asserting coverage conditions or motels, or other lodging proper TCASwas not successful in selling the exclusions that are in the policy but are ties, then such security interest aircraft within 120 days, Brown would not disclosed to the insured. The court extends to such rents and such accept the $100,000 as full payment for noted that if it held otherwise , th e fees, charges, accounts, or other the plane. TCASwas to provide insur statute would have no practical effect. payments acquired by the estate ance on the plane while it was in its In a situa tion in which the insurer after the commencement of the possession. failed to comply with the statute , il case to the extent providedin such TCAShad a blanket policy with JNA could simply assert the general rule security agreement, except to any covering all of its aircraft Coverage for that insurance coverage cannot be cre extent that the court, after notice Brown's airplane was secured under the ated or enlarged by estoppel, perhaps and a hearing and based on the INApolicy. Brown was not furnished a pay a nominal fine and deny coverage. equities of the case, orders other· copy of the insurance policy,but Brown The court thus recognized an exception wise. (emphasissupplied ) did receivea certificateof insurance from to the general rule, holding that in 11 u.s.c.§552(b )(2) INA, showingit as an additional insured. Alabama,an insurer who fails to follow The former subsec tion (bl was The certificate stated that the "Certifi the stat utory mandate of§ 27-14-19 changed to subsection (b)(l) but it cate of Insurancedoes not amend, extend, deleted the word "rents" in both places or otherwise alter the terms and condi where it formerlyappeared. tions of insurance coveragecontained in Under the new subsection (b)(2), if policieslisted above issued by Insurance \VIT'iESSES the lending agreement grants a security Company of North America." The cer DEFE NDANTS interes t in the real estate rents, the tificate also had "All Risks" printed secured lender's security interest in the under the "Aircraft Physical Damage" & post-petition rents continues automati designationof the typeof policy. H Eill S cally. Arguably, this new subsection When Brown discovered that TCAS, applies only to hotels, motels or other by forging a certificate of title, had sold LOCATED lodging properties. Some courts may Brown'saircraft, Brown attempted to cash hold that the word "rents" applies to all TCAS'check. but TCAShad stopped pay ANY\\'IIERE IN TIIE real estate rentals, while other courts ment on it. Brownfiled a claim with INA may strictly construe the language of for coverageunder the policy'stheft pro WORLD the new subsection and determine that vision. INAre jected the claim, asserting it applies only to "hote ls, motels, or that the policyd id not providetheft cov ()ur fl'i.llll of t.'\J)l'rrt.111,l'\liJ,.talurs other lodging properties" and not to erage to Brownas an additional insured can handll· lhL· lut.·:uion oft. •\asht.• shopping center. office, or apartment and stating that even if it did, coverage '.'luhjl'clsan~" hL·rt.•in llll' frl't.'\\Drld 1 rents. Under the latter interpretation, was excludedfor "conversion". ,,ith an M0Yusut.·ct.·,, rate.\\ '(' ha\l' the real estate lobby will Jose most of The first question certified by the fed O\t•r lJOtnillion suurt.·es Jhn,ul,!houl what it sought in the 1994 legislation. eral district court was whether an insur JS st.•p.tratr-dataha,t.•s in nhit.·h \\l' er is estopped to assert an otherwisevalid coin find )our suhjrct in lht.• exclusionby reason of its failure to deliv quickest ~11nount of lhnr. SUPREME COURT OF er a copy of the policy to the insured in Rea'ionahle Prices & (;uaranH•etl ALABAMA accordance witl1Ala. Code 1975, § 27- Sl•r, ic,•" 14-19,when it does providea certificate ( all l '., for \ fn ·l· Bnu;hun· Tnlla~ of insurance which sets out the general "Hht'II )tu,r l'rin-tit·t• IJ,•111uutf.,Th,• Insurer may be estopped from assert coveragewitl1out enumerating the limi 1 lh .,11/UI('8, ·,t. " ing exc lusions if in sur ed did not tations and exclusions. The supreme receivecopy of policy court determined that the crux of the (800) 460-6900 In Brown Machine Works & Supply question was whether, in order to give THEALABAMA LAWYER SEPTEMBER1995 / 317 may be estopped from asserting other ciaries and beneficiaries ol group poli· claims any effect on the coverage wise valid coverngeconditions or exclu cies. who are not entitled to copies ol contained in the policy and if it sions. ir the insured Is prejudiced by the the policy. absent an inquiry. Between does not "definitely contradict" insurer 's failure lo comply with the the ends or the continuum lies a large the policy; consequently, it also statute. group whose status remains to be deter becomes less likely that the insur Whether an insurer is, in fact, mined. The court noted: er will be estopped from asserting eslopptd to deny coverageby its failure In determining which persons otherwise ,•alid conditions oi, or to deli,oera copy ol the policyto a partic are included In that phrase (in the exclusions from, coverage that are ular in~ured depends, in part, upon statute( ... one should be guided contained in the policy but not in whether that particular insured is "the by tl,e followingstatement: In the the certificate. insured or ... lhe person entitled" to a hypothetical spectrum set out The second cerliried question asked copyor U1epo licy within the meaning of above, the further away a particu whether lh c court 's opinion would th e stat ute. The cou rt noted that it lar insured or beneficiaryis from change ir the insured had relied on rep· could not determ ine whether Brown Lhose we have held are definitely resen tal lons, made by the Insurer's wasentitled lo a copy o( the policy. That included in the stalutory phrase, agent, that the insured had full cover issue must be decided by the trier of then the less likely that the age. The supreme court responded that facL Insured or beneficiary will be the alleged misrepresentations on The court was reluctant lo state what included. Accordingly, proceeding which the insured relied did not alter types of insureds are entitled to a copy in the specl.rum away from those its opinion. as any fraud would be a sep or a policy. HO\,'t\'tr, the court observed to whom the statute definitely arate matter not affecting Brown's sta that on one end or the continuum or applies, it becomes more likely tus as an insured. The court added, insu reds are the purchaser and the that provisions of undelivered however, that the representations could named insured, who are clearly entitled policies will control over the be relevant m determining prejudice by lo copies ol the policy. On the other end terms of a delivered certificate of rea$0nor lhe insurer's failure to comply ol the continuum are incidental benefi- insurance rr lhe certificate dis- with the statute. • WE SAVE YOUR - I, I.. TIME . . . SPECIAL THANK YOU! ~ ~ arnell Now legal re>1earchnss1 s1ance The-fo&Jwingcoon roporlllf9and llrms plOYidedpro bono 1savailable when you need n. a.ssislance11 doa.monllng UIOl)foceedings ol lhe L E G A L wi1hou1the necessuy or Third CiUzens' Conlentnce <11 lhe Alabema State CouJts. adding a full-111nea~<;OCIIIC or Research ckrk. Dunn, King& Prince Institute of Associates Professional Wnh access 101he Srntc Law Libraryand Wcsitaw, we (Montgomery) Studies providefus 1and emcient service. For deadlinework. we Jenny Dunn (Montgomery) can deliver 111fom101ion 10 you via commoncurrier. Risa Entrekin Chani Muller Federal Expre~,.o r t=AX. Mary King Donna Gaskins Farnell Legul Research examines the issues thoroughly Suzanne Spiers Michele Lee 1hrough qualhy research,brief wriung and anolys,;., Edmondson Reagan , Pruitt & Our ro1es arc $35.00 per hour. with a threc hour Reporting & Video Clark m1n1mum. (Binnlngham) (Montgomery ) For Research Assistance contact: Steve Edmondson Sherri Adams Sarah Kathryn Farn ell Laura E. Durden Tonla Ayers 112 Moore Building Karen Brock Reagan Montgo mery, AL 36104 Haislip, Ragan , Green , Starkie & The Stenograph c.. 11 c 2osi 211-1931 Watson (Montgomery) Corporation Cathy Jackson GIi Claborn No~IS mad8M lf'e qu,l;ydliEJega/ "'™"8Str>be pe,fc,11ed /Sg,M'!lr//WI rlVJ QUllll)'d legal ~pebn'«i byC/htrll>>)&S Gail Shadburn 318 / SEP1'EMBER1995 1'MEALABAMA LAWYER LEGISLATIVEWRAP-UP By ROBERTl. McCURLEY,JR. he Alabama Legislat ure automatic powersfor trustees unless • The Legislature passed a new adjourned on Monday, July restricted In a trust agreement. ethics law that applies lo public 31, 1995. having passedsev S.B.260. officials,public employeesand lob DJer.ii major pieces of legisla Amendmentsto the fair Campaign byists. M.B.135. tion of interest to lawyersthat were pre PracticeAct concerni ng acceptance • Partialchild or spousal support pay· p.lred by the Alabama Law lmtitu te and and expendituresof campaignf unds. ments shall beapplied first lo prin receivedpassage. They are as follows: S.B. 266. cipal and the balance lo interest. I n,fonn l ummacfa l oJ Revised Accidentreports may be medwith H.B.401 . Articles3 & 4 (NegotiableInstruments in 30 days instead of ten days after • Section 18-IA-21 is amended to and Bank Depositsand Collectlons)H .B. the accident. S.B.308. change the interest rnle paid on 110, sponsored by Senator SteveWindom Judgments In condemnation cases. and RepresentativeMike llill, effective S.B. 750. January l. 1996.see March 1995Alaba· • Sexualassault examinationswill be mo lawyer. paid by the state rather than by the (uratori •re abolished~artcr January victim. H.B. 863. l, 1997 all exlsllng curators will auto· • fo ur court reform bills passed.M.B. matically be converted into conserva· 655 concerningadding a non-la\~ tors. H.B.634. and district judge Lo the Judicial l ninr:llrp<1r:il,"onpn,fil \,. ocinlion Inquiry Commission;H .B.37 1 adds 11.B.218, sponsored by Senator Doug two non·l~•"}'ers and a district judge Chee and Representative Mark Caines, to the court of the judiciary; H.B. effecti,-eJanuary I, 1996, see NO\ll!mber 194 requires justices and Judges to 1994Alabama lawyer. file a list or contributors annually: Retirement I ndits as property set· and H.B.854 providesthat no state llcment in divorce, S.B. 118, sponsored court may require disbursenient of by Senator Pal Lindseyand Representa· stale funds unless approved by the live Tony Petelos, effective January I, legislature. 1996.see May 1995AlabamaLawyer. Supreme court n,Jea Other legislationof interest lo lawyers The Nabama Supreme Court approved is as follows: a revisionof the Rules of Civil Procedure lo be effedive Odober l, 1995.They fur. The jurisdiction of the district Lher entered an order July 19, 1995 court was raised from $5,000 lo A bill was passedto provide for the approving new Rules of Evidencewhich $10,000.H .B.449. formation and operation or Real Estate InvestmentTrusts. S.B. 384. will becomeeffective January I, 1996. Circuit and district court fees, the For more information, contact Bob temporary court costs that were to • The "death penalty" for foreign Mccurley, Alabama Law Institute, P.O. expire October I, 1995.were made corporations that do not qualify to Box 1425. Tuscaloosa, Alabama35486 l)l!rmanent,see S.B. 146. do businw in Alabamawas refo or call (205) 348-7411, fax (205) 348· • The pocket parts of the Codewere st:ated.S.B. 512. 8411. • adopted and made officially part of • A rebuttablc presumption Is creat the Codeof Alabama,S.B. 19. ed lhal it is not in the best interest Videodep0sitions or a victim or a of a child to be in the custody of a A-rtL witness in a criminal case may be parent who was the perpetrator of M cCutt ey, Jr . - L M THEAu\BAMA LAWYER SEPTEMBER199513 19 In U1ecourse of practicinglaw, Judge judges,Judge Colewas seated as a circuit WilliamHutchins Cole, S r. Colese,ved UwBirmingham Bar Associa criminalcourt judge. tion well. I-le wa.sa member of the Crie-.0 In 1988, upan reaching the age of 70, or every thing there is a season, a ance Committee. He was elected as a and after serving over 20 years. be UmeFor every matter under hea\'en:A member of the ExecutiveCommittee and retired. He continued Lo se,ve in a supj?r Ftimeto be bom,and a time to die.... was electedvice -president or our bar a.sso numerary st.tu., until 1991 when, al the "Thebusiness of life." saysJohn Morley, eiallon Jo 1963. In JWO, he wasa mem suggestionof his physician,he discontin "is to be.1to do.tto do witHout, and lo ber of lhe "S1iecialUnauthorized Pra ctice ued all work as a judge. During his latter depart." Judge Cole, probablymore than of Law Committee" chaited by Prank years, Judge Cole served as a volunteer those of us left, understoodthat sooner or Bainbridge, and authorized by the BBA. librarianat BaptistMedical Ce nter, Mont later he musl face the palled messenger This committee investigat_edand assi,;ted olair. with the inverted torch. But the Judge in the effQrtsto terminate "The Quickie Judse Cole was active in the Birming knew that there was be)'Ondthe darkened DivorceRacket• This pra~ticeof obtain ham KiwanisClub and BrookwoodBap hall, a lifeso exciting, so wonderfulthat it ing fraudulent divorces was ended tist Churchand servedas wes idenl of the is beyond·human comprehension. through the effortsof lhe many commit AlabamaDistrict Excha nge Clubs. WilliamH utchins Cole, Sr. was born in ltt members. Judge Cole left_behind a devotedwife. Towson,Maryland on MarchI l. 1918.He In 196", WIiiiamH. Cole was elected thTee sons ,vho bear his name_,two graduated from the Universityof Mary presidentof tbe Bitmini!hamBar Associa daughters and an innumerable host oi land In 1938 and from the Universityof tion. He was the founderand first editor colleagues and friends who mourn his Maf)(landLaw Schoo l in May 1941. of the Birmingham Bar Association Bul p.ssing. After law school he served with the letin. As staled at its inception, this Bul Whereas, it is well that we pause and FederalBureau of Investigation until 1943. letin was to advise bar members of the roOecton lhls life which was so impor In l!M6, Judge Cole enteredthe practiceof activitie-,, legal decisions and items of tant to our .own. mindfultha t such renec law with Lange, Simpson, Robinson & interest to lhe bar. This publicationwas tion can do no less than contribute to a Somervilleand remained unUI 1957. In the forerunner of the present Bar Bul better tomorrowfor ea.ch or us; and, 1957,he formeda partnershipwith John H. letin. a beautiful quarterly publication, Whereas, this resolutionis offeredas a Jenkins In the generalpractice or law. In which bas27 o( our memben1named 011 recordof our admirationand affectionfor 1964.a new partnership ~ formedwi U1 its board of editors. Judge BillCole and of our condolenceslo John Jenkins,Dugan C.111away and Robert Judge Colewas one of three candidates his wife, his sons and daughters and the Vance.It is inte~tioi! to note that lhe firm nominatedto fill the vacancyo n the cir m·embersof his family. of Jenkins, Cole, Callaway& \lance ulti cuit court by !he retirement of Judge mately producedJudge WilliamH. Cole, George Lewis Balles. Judge Cole was - J. Fredric Ingram Judge DuganCa llaway(bolh circuit court elected for the six-yearterm. After se,v l'm;ldenl judges)and Judge RobertVance of the Fifth ing ten years in this DomesticRelations BirminghamBar Association and ElaoenthCircuit courts of appeals. Court and with the consent of all cirouit trying to negotiate the pitfallsof federal Whereas,th e BirminghamBar Associ WilliamEdgar Da vis procedurelb.in can be accuratelycount ation desires lo rememberhis name and ed; and, recognize his tremendouscontribu6ons l,ereas, WilliamEdgar Davis,a Whereas,it wouldbe a disse,vicenot both to our professionand to this com distinguishedmember of the to mentionthe organit.ationsin v.1hich munity: WBirmingham and Federal bar Billwas an active member.He was a Now. therefore,be it resolved. by the associations,passed away on l'ebruary member of Shades ValleyPresbyterian executivecommittee of the Birmingham 241 J 995;and, Church;Vestavia Country Club : Binning BarAssociation in meetinghere assem• Whereas,Bill, a native of Huntsville, ham DowntownOptimist Club; Birming bled UiatBIil not only lovedl awyers,but livedi n Birminghamfor 42 years; and, ham QuarterbackC lub; Birmingham spread that loveand compassion to Whereas,h ese,ved in the United AudubonSociety; Pi l 320 I SEPTEMBER1995 THE ALABAMALAWYER Walker County Bar Association, as well municipal judge of the City of Jasper; HermanWalter Maddox as being president of the Junior Bar Sec• and tion of the Alabama State Bar from 1949 Whereas, Berman Walter Maddoxlived through 1950, and furlher served on the life to its fullest and shall be remembered ereas, the Walker County Bar AlabamaS tate Bar Boardof Commission not only for his contributions to our ssociation was saddened to ers 1965th rough 1963; and community but also for his love of people earn of the death of one of its Whereas, Herman Walter Maddoxfur and his joy of living; membe~, Herman WalterMaddox, in the ther served his country as a special agent Now. therefore, be it resolved by the 24th day of May 1995;and to the Federal Bureau of Investigation Walker County Bar Association that we Whereas,Herman Walter Maddoxwas, during the years which this country was do hereby mourn the death of Herman wiU1in U1e legal profession, respected by al war from 1942through 1945;and Walter Maddox,and further extend our his peers for his devotion to his clients, Whereas, Herman Walter Maddoxfur heartfelt sympatny to his daughters, Lis• community, church and family;and ther distinguished himsell in service to beth Thomley and Carol Kilgore. Whereas, Herman Walter Maddoxwas his community by serving several terms admitled to the practice of law in June on the City of Jasper Board of E~ucation, -Richard Fikes 1936, upon his graduation from the Uni as mayor of the City of Jasper October Pre.sid~nt vtrsity of AlabamaSchool of Law,and he 1958 through September 1970, and fur WallrerCounty Bar Association served in virt ually every office of the ther serving for many years as the NormanKnight Brown EdwardM. Friend, Jr. OrangeBeach Bumingham Admitted: 1949 Admitted: 1935 Please Died:June 5, 1995 Died:June 27, 1995 HelpUs TheAlabama lawyer "Memorials" section is designedto providemem GeorgeWilliam HoraceNolan Lynn bers of the bar with information Cameron,III Montgomery about the death of lheir colleagues. Admitted: J 976 The AlabamaState Bar and lhe Edito Montgomery Died:May 2, 1995 rial Board have no way of knowing Admitted: 1989 when one of our membersis deceased Died:May 11, 1995 unlessw e are notified.Please take the lime to provideus ,,,ith thatinfom1a tion. If you wish to write somelhing HermanWalter Maddox about the individual'sli fe and profes Jasper sional accomplishmentsfor publica WilliamBibb Eyster Admilled: 1936 tion in the magazine~ple.ase limit Decatur Died:May 24, 1995 your comments to 250 words and send us picture if possible. We Admitted: 1947 a reservethe right lo edit all informa• Died:June 2. 1995 Lionsubmitted for lhe "Memoria.ls" section.P leasesend notificationin for NicholasStallworth mationto lhe followingaddress: McGowin MargaretL Murphy LesterAlexander Farmer, Jr. The Afabama Lawyer Mobile Dothan P.O. Box 4156 Admitted: 1947 Admitted: 1931 Montgomery,AL 36101 Died:May 22, 1995 Died:May 19. 1995 THE ALABAMALAWYER SEPTEMBER 1995/ 321 Al the Unl\..,rs,tyof Alllbama.he .,... a Jones. was •blc to continue to render MarcusEugene mtmb HELPPUT A SMILEON MY FACE LET'S FINDCURES FOR NEUROMUSCULAR DISEASES. \.~c~~:.. MUSCUIAROYSlROPHY ASSOCIAT ION l ·800·572-l 7l 7 322 / SEPTEMBER 1995 THE ALABAMALAWYER CLASSIFIEDNOTICES RATES: Members: 2 free lisUngs of 50 words or less per bar member per calendar year EXCEPT for ·posihon wanted" or •position offered" hstings - $35 per 1nsert1onof 50 words or less. $.50 per additional word; Nonmember s: $35 per insertion of 50 words or less, $.50 per additional word. Classified copy and payment must be received according to the following publishing schedule : September '95 i ssue - deadline July 15, 1995; no deadline extensions will be made. Send classified copy and payment, payable to The Alabama Lawyer, to: Alabama Lawyer Classifieds, c/o Margaret Murphy, P.O. Box 4156, Montgomery, Alabama 36101 emy ol Forensic Sciences, Southeast Solullons , Inc., which provides privale SERVICES em Association or Forensic Document mediallon services in civil and lamily Examiners. Criminal and civil matlers. cases and devel ops and Implements Cemey& HammondFo 1'1It,; AU18AMA LAWYEll SEPTEMHER1995 / 323 13577 Feather Sound Drive, Suite 690. casually and marine. Twenty-five years' Clearwater, Florida 34622·5552. Phone experienceas agent, broker and teacher. POSITIONS OFFERED (813) 579-8054. Fax (813) 573-1333. CV on request. Mark B. Rosen, CPCU, 401 Bryan Circle, South, BrandOn,Flo ri • INSURANCE EXPERT WITNESS: Bad da 33511-6034. Phone (813) 685·1110. • ATTORNEY JOBS : Indispensab le faith/fraud/insurance coverage/clalms monthly job-hunting bulletin listing 500· matters/marketingi,ssues. Forme r claims 600 current jobs (government, private attorney with prior sales background FOR SALE sector, public interest), RFPs, and legal available lo consull and testify In cases search opportunities tor attorneys at all with insurance disputes. Experienced levels of experiencein Washington, DC, In trial testimony. Excellent credentials. • LAWBOOKS: William S. Hein & Co., natio nwide and abroad . Order the A.C. Jones, Jr., JD, CLU, Birmingham, Inc., serving the legal community for National and Federal Legal Employmenl Alabama. Phone (205) 251-2380. No over 60 years. We buy, sell, appraise Report from: Federal Reports , 1o 1 o representation is made that the quality all tawbooks. Send want lists to: Fax Vermont Avenue, NW, Suite 408-AB, of the legal services to be performed is (716) 883-5595 or phone 1-S00-4WM Washington, DC 20005. $39-3 months: greater than the quality of legal services HEIN. $69-6 months. Phone 1-800-296-9611. performed by other lawyers. 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No representation Is dispute resolution is interested in explor made that the quality ol the legal ser • LAWBODKS : Entire law library of ing either assoc iate or •ot counsel' vices to be performed is greater than Huntsville attomey: over 1.600 volumes. positionwith Birming ham,area firm, plaln the quallty of legal services performed Can be sold as a whole set or Individu liff or defense. Currently, in-house trial by other lawyers. ally. All books in very good to excellent counsel for large, mullinallonal corpora condition and are priced to sell. Some tion. Admitted in Alabama and other • INSURANCE EXPERT WITNESS: Llti• need to be updated. For more informa states. Please reply to "Labor Lawyer", gallon support services tor defendanis tion or an inventory list. phone 1-800- P.O. Box 361198, Birmingham. Alaba and plaintiffs. specializing in property, 233-0794, ext. 6181, and ask for Mark. ma35236 . r------, ADDRESS CHANGES CompleteLh e form belowONLY if there are changesto )'Ourlisting in the current11/abama Bar Directorg. Due lo changes in the s~1tutegov erninge lectionof barcommissioners . \\"e no\Vare required to use members' officeaddresses, unless none is a\lailableor a meo1be.ris prohibited from receivingstate bar m.iil al the office.Additionally , UleillabamaBat Directory is compiledfrom our mailing list and it is important to use businessaddresses for Ulal reason.NOTE: If we do not knowo f an addresschange. we cannot makethe necessarychanges on our records,so pleasenot ify us whenyour addresschanges. Mail form to: Cbristie T. Freeman, P.O. Box 671, Montgomery, AL36101. ____ MemberIdentificat ion (Social Security) Number Chooseone : 0 Mr. 0 Mrs. 0 Hon. 0 Miss O Ms. 0 Other ___ _ Full Name______ Busines5Phone Number______Race______Stl<___ Birthdate ______Ye'1rofAdm ission______ ~rm------OfficeMailingAddress ------City______Sti le __ ZIP Code______County______ OfficeStreet AdJress (if different rrommailing address)------L------~ 324 / SEPTEMBER1995 Tl-IEALABAMA LAWYER OuicliWhat 'sThe Value OfYour Cliellllf IsCompalllly? T 1,. : J RS (OR A DEPAIITlNC PARTNEHO R SOON•'l'O· BE·EX·Sl'OUSE OR TIIE EXECllroR OP Tm : llSl'KrE) WAm'S AN AN~WERRl ()HT AWAYAND Wit.I. NOT LOOK KlNDL.YON A RESPONSECOi''l'A INING TIIE WORDS"APPROXIMATEL.l" AND "ROUGIILl". "l!OU I I.AVETWO CHOICF.S. BFSr : CA1..i. 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