MARCH 2016Lawyer | VOLUME 77, NUMBER 2

THE AlabamaMARCH 2016Lawyer | VOLUME 77, NUMBER 2

L Navigating the Ethical Maze of E-Discovery in Light of the Recent California Bar Ethics Opinion Page 106

L Shifting the Burden: Municipal Workers and Establishing Evident Partiality in Alabama Based Upon a Failure to Disclose Page 118 HowHow Does YourYouro MalprMalpracticeaour ice Insurcta InsurInsurererice TreatTTrreatat YYouou WWhenhen YYouou HavHaveavvee A Claim?laim?CA laim?

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Metropolitan Life Insurance Company, New YYork,ork, NY L0116451652[exp0118][All States][DC] THE Municipal Workers S E L C I T R A E R U T A E F 2 R E B M U N , 7 7 E M U L O V | 6 1 0 2 H C R A M Alabama Lawyer Alabama Light of the Recent California BarEthics Opinion Navigating the Ethical Mazeof E-Discovery in Alabama Based upon aFailure to Disclose By Marcus R. Chatterton andElizabeth J. Flachsbart The Mobile City Government Case: President-Elect Profile Shifting the Burden: and Establishing Evident Partiality in Augusta S. Dowd By David A. Bagwell By Rebecca A. Beers 1975-1982 118 106 94 90 The Finklea Group –Photo byNoelle M.Buchannon, water dripping through the caveceiling. formed byprecipitation of minerals from that hangfrom the ceiling of acave Stalactites are icicle-shaped formations Stalactites in DeSoto Caverns, Childersburg. On On CoverThe Executive Director’s Report S N M U L O C The App ellate Corner Legislative Wrap-Up flickr.com/AlabamaStateBar youtube.com/TheAlabamaStateBar @AlabamaStateBar @AlabamaStateBar facebook.com/AlabamaStateBar Disciplinary Notices Important Notices About Members, General Counsel President’s Page Opinions of the Among Firms YLS Update Memorials Bar Briefs 152 150 148 144 142 140 136 135 128 92 88 www.alabar.org 85 T H E Alabama Lawyer 86 T H E Alabama Lawyer A,Ic ...... 143 2AB, Inc. Stokes McNutt...... 139 .....105 Professional Software Corporation ...... 151 OnBoard Search & Staffing ...... 83 Distinguished Neutrals National Academy of The Locker Room...... 93 LawPay ISI Gilsbar Pro Freedom Court Reporting ...... 145 The Finklea Group J. Forrester DeBuys,III...... 105 Davis Direct...... 146 ...... 105 Cain & Associates ...... 82 of the South Attorneys Insurance Mutual ...... 133 AlaServe, LLC ...... 91 ABA Retirement Funds S R E S I T R E V D A March 2016 ...... 84 ...... 87 ...... 156 ...... 155 www.alabar.org FAX (334) 261-6310 (334) 269-1515 •(800) 354-6154 Montgomery, AL 36104 415 Dexter Avenue ALABAMA STATE BAR Receptionist Paralegals/Investigators Client Security Fund Coordinator ...... Bonnie Mainor Disciplinary Clerk Complaints Intake Coordinator Assistant General Counsel Assistant General Counsel Assistant General Counsel General Counsel PROFESSIONAL RESPONSIBILITY STAFF CENTERFOR ALABAMA STATE BAR ...... Tracy Daniel Alabama Law Foundation, Inc. Director Alabama Lawyer Assistance Program ...... Linda Lund Volunteer Lawyers Program Director ...... Laura A. Calloway Director of Service Programs ...... Stephanie Oglesby Receptionist Graphic Arts Director/ Hall Director of Finance...... Merinda Director of C. 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Daniel Sonia Douglas Robyn Bernier Carol Mott Sue Jones • 29 No. 1, Allan R.Chason,BayMinette; Place No.2,Sam W. Irby, Fairhope Holt, Florence •12 Hays Webb, Tuscaloosa •7 cuit, Place No.1, Terri Olive Tompkins, Tuscaloosa; Place No.2,Robert derburg, Pell City •31 Scottsboro •39 Loftin, Phenix City •27 1 ...... Young Lawyers’S. Hughston Nichols, Birmingham Section President ...... Secretary Keith B.Norman, Montgomery ...... Vice President R. Cooper Shattuck, Tuscaloosa ...... Immediate Past President Richard J.R.Raleigh, Jr., Huntsville J. Cole Portis, Montgomery...... President-elect Lee H.Copeland, Montgomery...... President Jason B. Tompkins, • Birmingham David G. Wirtes, Jr., Mobile ingham • Marc A. Starrett, Montgomery • M. Chad Tindol, •Montgomery TuscaloosaKatherine T.• Powell, Birmingham • Allison O. Skinner,tiel, Birm- Montgomery • Anil A. Mujumdar, Birmingham • SherrieMcLaughlin, L. Phillips, Guntersville • James R. Moncus, III, Birmingham • McGowan,Joi T. 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Adcock, Talladega •30 Circuit, Donald R.Rhea,Gadsden•17 rd th Circuit, Christina D.Crow, Union Springs •4 th Circuit, Place No.1,Leslie R.Barineau, Birmingham; Place nd Circuit, J.Daryl Burt, Winfield •26 th Circuit, Manish H.Patel, Andalusia •23 Circuit, Donald BenMansell, Athens •40 th th is the official publication of the Alabama State Bar.the State of AlabamaViews publicationofficial the is Circuit, Place No.1,George R.Parker, Montgomery; Circuit, Thad Yancey, Troy •13 th (USPS 743-090) is published six times ayear by st Circuit, Place No.1, William Randall May, Birm- th Circuit, Tom Heflin, Tuscumbia •32 The Alabama Lawyer Alabama The th th Circuit, Clint L. Maze, Arab •28 th Circuit, Christy Williams Graham, Moulton • Circuit, Charles G.Reynolds, Lanett •6 Circuit, William H.Broome, Anniston •8 st rd Circuit, Scott L. McPherson, Oneonta Circuit, Lee F. Knowles, Geneva•34 th ...... Vice Chair and Associate Editor Circuit, Robert L. 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AffiniPay is a rcgistcrod ISO/MSP of BMO Harris Bank, N.A., Chicago, IL 88 T H E Alabama Lawyer March 2016 Lee H. Copeland Alabama Lawyer Assistance Program Robert B. Thornhill, director, thank themfor theirservice. youentire bar.If seeone ofthem,please their missionthanany othergroup inour works withthisgroup ismore dedicated to many lawyers. Thewho membership gram haspositively affected many, on holidays, thepoint isthat thispro- uncle oraunt whoisbrought outonly the program asyou would viewanodd Program (ALAP). Although many view well istheAlabama Lawyer Assistance program thatparticular hasworked very and somewhichcould bebetter. One many programs ofthebar, somegood and socialopportunities. There are education, professional development group that promotes continuing legal oflawpractice andasanassociational that governs entity the the statutory grated bar, bothas onethat functions Program alabama Lawyer assistance As you know, ourstate barisaninte- E G A P S ’ T N E D I S E R P Program. Hehasabachelor’s degree in tor for theAlabama Physicians Health that, heworked astheclinicalcoordina- the barfor more thanthree years. Before hasbeenwith Robert Thornhill. Robert ing assistance. The ALAPisheadedby state who are passionate aboutprovid- dedicated attorneys throughout the staff andacommittee and ofvoluntary company thesemaladies. profound sadness that inevitablyac- sions, worsening healthproblems and lay the brokenfact homes, lostprofes- their lives in2015.Beyond thistragic had at leastfive attorneys whotook can alsoleadto suicide. Alabama, we In among attorneys. Untreated addiction causeforis amajorunderlying suicide Undiagnosed anduntreated depression double that ofthegeneral population. pression amongattorneys isroughly alize that therates andde- ofaddiction The ALAPconsists ofthree full-time Many ofourmembershipmay notre- are providing legal advice and are not licensed to do so. below market. Of course, the problem is that these companies number of people at a price that (by many) is considered traditional legal services (wills, deeds, contracts, etc.) to a vast state. in aparticular areproviders notauthorized to law oflegalservices practice suits–although different that insomerespects–is these suchasLegalZoom.of legalservices The thrustofallthelaw- brought across thecountry, bothby andagainst, providers LegalZoom Litigation continue. place forbeen taking years andIamhopefulthat theywill schools graduates. Frankly, these meetings shouldhave tance itcanto theschoolsto provide employment for the bar exams. And thebarplansonlendingwhatever assis- more information concerning theresults ofthetwo annual anticipated that thestate barwillprovide to thelaw schools bers ofourprofession. As aresult ofthismeeting, itis tion theschoolsneedto recruit andeducate future mem- provide thelaw schoolsinterms ofassistance and informa- ofthemeetingisfind outwhatOne purpose ourbarcan This isthesecond timethebarhashosted suchameeting. deans andotherofficialsofourfive Alabama law schools. oftheLawmeeting schools’ deans recommendations for referral whenneeded. and to assistwiththesechallengesandcanprovide support ing more prevalent inourprofession. The ALAPisequipped Forms ofdementia, suchasAlzheimer’s disease, are becom- continues to increase andattorneys tend to work longer. ofourpopulation tive impairmentasthelife expectancy of many attorneys who have been guided to recovery. treatment. The program has played a central role in the lives for accountability following completion of evaluation or and treatment, when appropriate, and a monitoring program recovery. The ALAP provides support, referral for evaluation tance and experienced the life-changing results of genuine many of them have been the recipient of this kind of assis- Robert’s difficultjob. andabilitiesfor character thisvery professional.addiction to have barislucky Our someoneof cohol and drugabuseprofessional andamaster’s level opment. Heisalicensed professional counselor, al- certified psychology andamaster’s incounseling andhumandevel- The lawsuits are the result of the technical ability to deliver As many ofyou are aware, there are variouslawsuits being Recently, several membersofthestate barmetwiththe Recently there hasbeenmore focus ontheissueofcogni- The ALAP is committed to this kind of service because will bemadeto ourunauthorized oflaw practice statutes. that ourbarbe prepared isimportant forIt theseissuesthat and LegalZoom isonethat may berepeated inotherstates. consider joiningoneor two! Workers’ Compensation Law and Young Lawyers’ Section. Lawyers; &SmallFirm; Solo Taxation Law; Women’s Section; Property, Real Law; & Mineral Probate & Trust; Senior Leadershipployment Forum Law; Alumni; Litigation; Oil, Gas Labor&Em- InternationalLaw; Law; &Sports Entertainment House Counsel &Government Property, Lawyers; Intellectual Practice;eral Court Government In- Contracts; HealthLaw; Government Relations;Environmental Family Law; Fed- Law; Ethics Elections, & Dispute ElderLaw; Resolution; ties Law; Justice; Criminal Disabili- Industry; Construction tions Law; Business Business Law; Torts Communica- &Antitrust Law; &Commercial Appellatetive Practice; Law; Law; Bankruptcy should becreated. oftheASBareThe Administra- sections cally appointed to consider whetheradditionalsections some were inthepastyear. charted Task forces are periodi- tently outstandingleadershipyear year. after many have ofoursections large membershipsandconsis- to note, isimportant though,that (483members).It Section (216members)andthe Relations section Young Lawyers’ Ethics &Government (421members),theElection, section Counselmembers), theIn-House &Government Lawyers creased membershipare &SmallFirm theSolo (525 section months to come. ices to Look sections. for additionalinformation inthe membersby continuingneeds ofsection to expand itsserv- from lastyear. The barisresponding andfelt to theactual ing. There members, are a20percent 7,400section increase governance andreorganization. membersare Our respond- cies governing sections. ing to their bylaws approved by theboard andthebar’s poli- the Board ofBarCommissioners andmustoperative accord- byand thepayment are ofannualdues. charted Sections completing anapplication onthebar’s site (www.alabar.org) lawyers who have area aninterest oflaw by inaparticular membershipisopento theirclients.law to serve Section promoting understandingandconsistent application ofthe ing ofinformation amongourbarmemberswiththegoalof oftheBar sections The recent Carolina resolution State between North Bar I encourage you and theirgoalsand to lookat thesections dateThe Some barhas31sections. backto the1930sand ofthemostrecentSome andin- success stories ofactivity Currently, there isamajorfocus administration, onsection facilitate communications networking, andshar-Sections www.alabar.org L 89 T H E Alabama Lawyer 90 T H E Alabama Lawyer March 2016 Augusta S. Dowd E L I F O R P T C E L E U T N E D I S E R P Augusta S.Dowd complex litigation, personal injury, mass including business, civil, class action, defendants in a broad spectrum of cases tions. She represents both plaintiffs and and regulatory proceedings and arbitra- state courts, as well as in administrative defense, Augusta practices in federal and plex litigation and white-collar criminal a trial lawyer, primarily in civil and com- and she continues to hold that position. ing lawyer when the firm restructured, Arnold & Dowd PC. She became manag- structured in 2003 to become White 2000 to join the firm that eventually re- fore returning to the practice of law in the 1990s at home with her children be- was born in 1990. Augusta spent most of where she practiced until her third child Lange, Simpson, Robinson & Somerville, law practice in 1983 in Birmingham with District of Alabama. Augusta began her able Seybourne H. Lynne of the Northern in 1982, Augusta clerked for the Honor- Review as articles editor for the versity School of Law, where she served the South (Sewanee) and Vanderbilt Uni- gusta graduated from the University of term and she will assume the presidency in 2017. position of president-elect of the alabama state Bar for the 2016-17 augusta s. dowd. dowd was the sole qualifying candidate for the President-elect Pursuant to the alabama state Bar’s With more than 25 years’ experience as Born and raised in Birmingham, Au- . After graduating from law school , the following biographical sketch is provided of Vanderbilt Law quiry Commission, where she is now two lawyer positions on the Judicial In- sioners appointed Augusta to one of the tee. In 2011, the Board of Bar Commis- and on a state bar Disciplinary Commit- 10th Judicial Circuit (Jefferson County) State Bar Commissioner representing the 2009, Augusta has served as an Alabama of the BBA’s Future Leaders Forum. Since template for and led the inaugural class 2010. She created the original course BBA’s Grievance Committee in 2009- panels and as one of the co-chairs of the served on one of the BBA’s grievance ingham Bar Foundation. Augusta also (2006-2007) and is a Fellow of the Birm- tee (2004-2007) and Diversity Task Force Association’s (“BBA”) Executive Commit- was a member of the Birmingham Bar ties on both the local and state level. She been meaningfully involved in bar activi- “lawyers render service,” Augusta has pensation matters. handles executive severance and com- nal environmental matters. She also fendants in white-collar crime and crimi- extensive experience representing de- and whistleblower actions. Augusta has tort, pharmaceutical, environmental tort Rules Governing the Election of Committed to our state bar’s ideal that Lawyers, inAlabama Lawyers (2011);Super Top 25 Women Lawyers Lawyers the Year, Lawyers Best (2011);AlabamaSuper inAmerica Magazine, Top Women Attorneys (2015);Mass Tort Lawyer of inAmericacluding: TheLawyers Best Hubbell. Shehasbeennamedto multiple of”“best lists, in- students in advanced civil procedure. University of Alabama School of Law, where she instructed visory Council. She has served as an adjunct professor at the Advanced Safety Engineering and Management Industry Ad- ciation, the National Association of Women Lawyers and the gusta is a member of the Women’s White Collar Defense Asso- Association and a Fellow of the American Bar Foundation. Au- of Trial Lawyers, a long-standing member of the American Bar Chapter. She is also a member of the International Academy cates, where she served as president (2015) of the Alabama Augusta is a member of the American Board of Trial Advo- Society, as well as a Fellow of the Alabama Law Foundation. serving her second term. She is a member of the Atticus Finch Augusta haslongheldanAV-rating from Martindale- , Lawyers (2012);Super Magazine/Alabama Top 10 (2008-2015); cover andfeatured Super article, A differentdif kindofretirement plan.

ffer fer ent kindofr ent kindofr (2007-Present); B-Metro Representative today. Funds Program Regional Contact anABARetir Contact anABARetir Repr Funds Pr Contact anABARetir etir esentative today joinus@abar 866.812.1510 ement plan. ogram Regional ogram Regional etir.abarwww day etir etir ement.com ement.com ement.com y. . ement ement (27) andDavid IV(25). sinceried 1982. They have three children: Bevan(29),Grace at&Forman Burr attorney andpartner LLP, have beenmar- Bishop oftheEpiscopal Diocese ofAlabama since 2009. asassistantAlabama, chancellor where to shehasserved the board ofdirectors since 2010,andtheEpiscopal Diocese of Central Alabama, where shehasbeenamemberofthe ganizations. focuses Hercurrent onthe service of YWCA behalf ofmultiplecharitable, educational andreligious or- her career Augusta hasvolunteered hertimeandtalents on (2007) andMomentum Women’s Leadership (2010). ety, andsheisagraduate ofbothLeadership Birmingham member oftheAlabama Committee oftheNewcomen Soci- Sclerosisham Multiple Leadership Classof2007.Augusta isa Business inBirmingham” (2006)andnamedto theBirming- 2013). Shewas recognized asoneofthe “Top Ten Women in ness Journal’s Lawyers in Alabama (2008-Present); andBirminghamBusi- Lawyers in Alabama (2008-Present);, Lawyers Super Top 50 Augusta andherhusband, David D. Dowd, III,acorporate Active community, intheBirmingham over thecourse of information abouttheProgramandinvestmentoptions. Foremailinquiries,contactusat: (September 2015),carefullybeforeinvesting.ThisDisclosure Documentcontainsimportant Please readtheProgramAnnualDisclosureDocument (April2015),assupplemented The ABARetirementFundsProgramisavailablethrough theAlabamaStateBarasa CN1029-19104-1117 -2015 CN1029-19104-1117 -2015 unaffiliated companiesand arenotresponsibleforoneanother’ unaffiliated companiesand arenotresponsibleforoneanother’s productsand services. The ABARetirementFundsProgramandV The ABARetirementFundsProgramandVoya FinancialPartners,LLC,areseparate, Securities offeredthroughV Securities offeredthroughVoya FinancialPartners,LLC(MemberSIPC). [email protected]. [email protected]. [email protected]. information abouttheProgramandinvestmentoptions. Foremailinquiries,contactusat: information abouttheProgramandinvestmentoptions. Foremailinquiries,contactusat: information abouttheProgramandinvestmentoptions. Foremailinquiries,contactusat: (September 2015),carefullybeforeinvesting.ThisDisclosure Documentcontainsimportant (September 2015),carefullybeforeinvesting.ThisDisclosure Documentcontainsimportant (September 2015),carefullybeforeinvesting.ThisDisclosure Documentcontainsimportant Please readtheProgramAnnualDisclosureDocument (April2015),assupplemented Please readtheProgramAnnualDisclosureDocument (April2015),assupplemented Please readtheProgramAnnualDisclosureDocument (April2015),assupplemented member benefit. member benefit. The ABARetirementFundsProgramisavailablethrough theAlabamaStateBarasa The ABARetirementFundsProgramisavailablethrough theAlabamaStateBarasa The ABARetirementFundsProgramisavailablethrough theAlabamaStateBarasa Find outwhatmanylawfirmslikeyoursalr Find outwhatmanylawfirmslikeyoursalr U U U UÊ UÊÊ U unique needsofthelegalcommunity fr The unique needsofthelegalcommunity “Who’s Who inLaw andAccounting” (2011- Ê ÊÊ Ê ÊÊ now Ê Ê ÊÊ ÊÊ Ê Ê ÊÊ ÊÊ Ê Ê ÊÊ ÊÊ om otherpr om otherpr Voya FinancialPartners,LLC,areseparate, FundsProgramandV pr WWe pr community andourmemberclientstomake WWe leveragethesizeand scaleofthelegal even solos. community andourmemberclientstomake inter lawyers, weensur lawyers, weensur As anot-for As anot-for etirr

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e leveragethesizeandscaleoflegal eea e pr e leverag otection fr otection fr ABA Retir ABA Retir . It’k Voya FinancialPartners,LLC (MemberSIPC). oughV ement plansaf ement.etirr ement.etir ’s productsandservices. sandarenotresponsibleforoneanother’ est oflawpr est oflawpr ovide lawfirmswiththemostcompr ovide lawfirmswiththemostcompr s goodtobedif odtobedif plansaf oviders. Itwasestablishedtomeetthe oviders. Itwasestablishedtomeetthe -pr ement FundsPr om fiduciaryliabilityunderERISA. om fiduciaryliabilityunderERISA. ofit corporationledbyvolunteer oya FinancialPartners,LLC(MemberSIPC). ofessionals whoar e decisionsar ffor for ffer dable forfirmsofallsizes, dable forfirmsofallsizes, fer oya FinancialPartners,LLC,areseparate, oya FinancialPartners,LLC,areseparate, ent. ogram e madeinthebest . e savingfor f isdif s productsandservices. eady fer ehensive ehensive www.alabar.org ent ent L 91 T H E Alabama Lawyer 92 T H E Alabama Lawyer March 2016 [email protected] Keith B.Norman T R O P E R S ’ R O T C E R I D E V I T U C E X E Championship overall andits11 ing goals: pursue, amongotherthings, the follow- tobar associations across thecountry for localandstate vided anopportunity scope, theannualcelebration haspro- for all. isnational in Although thiseffort to increaselocal efforts access to justice Pro Bono sponsored thenational Celebration of tee onPro has andPublic Bono Service can BarAssociation’s Standing Commit- Alabama. That isimpressive. pionships have involved teams from ball championships, sixofthosecham- thelastseven foot- pollera.modern Of son Tigers to claim its16 bama Crimson Tide defeated theClem- Yea Alabama! For thepastseven years, theAmeri- I am writing thisaday theAla-I amwriting after to bothenhance andexpand th National th in the activities incommunities that notonly activities innumerous programsparticipated and October. Lawyers across thestate have tion from aweek to theentire month of cided to thepro extend bonocelebra- Committee andPublicBono de- Service with the 2015 theme, “And Justice for All.” Several years ago, thestate bar’s Pro The celebration took place in October Recognizing of thepro bonoefforts • Fostering collaborative relation- • for support community Mobilizing • more Recruiting pro bonovolun- • America’s lawyers. ships; pro bono; to poorandvulnerable people; teers andincreasing legalservices lawyer programs (VLPs) statewide and hard to strengthen the volunteer these awards prove, they are working rendering pro bono service and, as state Bar than 5,000 members, the for first place. And, for bars with more gomery association County Bar fewer than 5,000 members, the place. For bars with more than 500 but County Bar association 500 or fewer members, the their pro bono efforts. In the category of try in the recognition they received for bama swept all other bars in the coun- This past year, bar associations in Ala- cessful as our college football teams. cated to pro bono, but also are as suc- are unableto afford alawyer. zens whohave civillegalneedsand its benefitfor Alabama’s neediestciti- pro butalsoacknowledge bonowork, promote ourprofession’s of support Alabama lawyers are serious about Alabama lawyers not only are dedi- received the first-place award. received first alabama Tuscaloosa mont- tied [email protected] (256) 539-2275 Huntsville 35804-2913 P.O. Box 2913 Attn: Schroer Nicole Countymadison VLP [email protected] (205) 250-5798 35203-3703 Birmingham 2021 2ndAve. N BarCenterBirmingham Attn: Nancy Yarbrough Birmingham Bar VLP one of the VLPs listed below. tradition and sign up to volunteer with not a member of a VLP, join the winning national champions as well. If you are abama’s volunteer lawyers are pro bono college football national champion. Al- The University of Alabama is this year’s abamians unable to afford an attorney. who are taking time to represent Al- increase the ranks of volunteer lawyers Montgomery, AL|334.262.1788 Two Expertly Fitted Suits 1717 CarterHillRd. Mon-Sat 9am-6pm SUIT UP. www.TLRClothiers.com Two tropical-weightwoolsuitsmade with outstandingqualityanddetail, [email protected] (334) 269-1515 36101 Montgomery P.O. Box 671 Attn: LindaLund alabama state Bar VLP [email protected] (251) 433-6693 36602 Mobile Ste. 312 56 St. Joseph St. Attn: Moore Ariana alabama south VLP [email protected] (334) 265-0222 36101 Montgomery P.O. Box 72 Martin Attn: Mike Countymontgomery VLP ideal foryear-round wear. Auburn, AL|334.321.4962 127 EastMagnoliaAve. Mon-Sat 10am-6pm www.alabar.org L 93 T H E Alabama Lawyer 94 T H E Alabama Lawyer March 2016 lHE ••• PO~!ER B OlLUlE OlER LP\C VOllNG K Of 1976). The Fifth Circuit affirmed, Bolden v. City of Bolden v. City of Mobile, 423F.Supp. 384(S.D. Ala. the form of government to amayor-council form. with single-member districts, heordered achange in a remedy, since the commission form would not work violated the Fourteenth andFifteenth amendments. As tion feature of the commission form of government intent, Judge Virgil Pittman held that the at-large elec- than effect. After trial, onaneffect basis rather than clearly Davis, 426U.S. 229(1976), which seemed to me before trial, the Supreme Court decided Washington v. quired to beproved, not adiscriminatory intent suggesting that only adiscriminatory effect we were in what wenowcall “the old Fifth Circuit”] dent from two years before [as youknowbefore 1981 power of black voters. They cited Fifth Circuit prece- large, unconstitutionally operated to dilute the voting adopted in 1911 with three commissioners elected at- city commission form of government of Mobile, filed suit in federal court in Mobile, claiming that the [sic: are lawyers “executives”?] “Executive Summary” Government Case: More than 40years ago,in 1975,black plaintiffs The Mobile City to require proof of discriminatory intent rather 2 8 9 1 - 5 7 9 1 was re- By David A.BagwellBy David . Just but that’s essentially correct. “Mayor/Council.” There were many small changes, had aform of government which today wewould call on howyoufigure it] to 1911, Mobile almost always Spanish West Florida [1810 to 1815or so,depending came into the United States asapart of the former Years: 1810-1911 The First Hundred (1986) stated the current tests under Section 2. Court in Thornburg v. Gingles, 478U.S. 30,43-44 Constitutional issue in voting cases. The Supreme that wasrequired under the Act, which mooted the say specifically that adiscriminatory effect wasall gress amended Section 2of the Voting Rights Act to was required. Two years later, though, in 1982,Con- make out acase,but rather adiscriminatory intent Rights Act, adiscriminatory effect and Fifteenth amendments andSection 2of the Voting plurality of the Court wrote that under the Fourteenth ion, City of Mobile v. Bolden, 446U.S. 55(1980), a Supreme Court reversed, andin afiercely split opin- Mobile, 571F.2d 239(5th Cir. 1978). The U.S. For about 100years, from the time that Mobile was not enoughto www.alabar.org 95 T H E Alabama Lawyer 96 T H E Alabama Lawyer 2007 voted down anattempt to changeit]. maining big city to have acommission form, andin one of the most liberal cities in the U.S., is the last re- and plenty of others did, too [now, Portland, Oregon, Iowa became the first city outside Texas to adopt it, gressivism in the 1900-1920 period, and DeMoines, darling of political scientists during the height of pro- government tion. normally rotated the mostly-ceremonial mayor posi- lice and fire] and (3) public services [utilities], and utive duties, normally (1) finance, (2) public safety [po- three “commissioners,” who assigned themselves exec- government, under which there were adopted the city commission form of city back, so to do that Galveston was deemed insufficient to bring the mayor/council form of government Galveston in the hurricane, the old Cline http://en.wikipedia.org/wiki/Isaac_ hard to predict it andwarn people. after the weatherman whotried 1999 bookIsaac’s Storm, named 8,000], discussed in the wonderful people [usually averaged out as 1900 which killed 6,000-12,000 Government Form of Commission And the City Hurricane The Galveston March 2016 The commission form of government became the After the complete destruction of Galveston hadahugehurricane in http://en.wiki pedia.org/wiki/City_commission_ 1901, Dr. Malcolm that, Consti- “The historian scholar of theAlabama Constitution of eliminated the Auburn, wrote tution of1901 Negro voter.” The foremost McMillan of McMillan nated the Negro voter.” of Auburn, wrote that, “The Constitution of 1901 elimi- Alabama Constitution of 1901, Dr. Malcolm McMillan had disenfranchised more whites than Negroes.” disfranchise the Negro, the poll tax and other deterrents stitution, to establish white supremacy in this state?” to do? Why it is within the limits of the Federal Con- in the PROCEEDINGS: “Andwhat is it that wewant chair at the beginning of the Convention, asreported the Constitutional Convention of 1901said from the the 1901Constitution, according to what the chair of disfranchisement,” vant here, that, “Negroes were not the sole target of And it worked. The foremost historian scholar of the 3 of The Sayre Election Law with the L&N railroad, ran Alabama. “Bourbon aristocracy” which, along voters, and outvote the planters’ mon cause with poor white populist that black voters would make com- who ran Alabama became terrified and 1894, the black belt planters ernor elections in Alabama in 1892 1893-1901 Alabama: Black Voters in Elimination of The Complete bama. This wasthe stated goal of were entirely eliminated in Ala- Constitution of 1901,black voters with the passageof the Alabama Mrs. F. Scott Fitzgerald], and1901, Sayre, the father of Zelda Sayre, bama [named for Judge Anthony D. 4 and that “[s]upposedly designed to Between 1893,with the passage During the populist revolt-era gov- 3 [It is also true, though irrele- 1 in Ala- 5 ] 2 To 1975 Applicable Law, 1960s Confusion about the Joe Langan and Robert Edington agreed. se form of government and that “racial discrimination “Boss Tweed” “ward heeler” aspects of the alderman in 1911 was to clean up corruption and to eliminate the bile’s adoption of the commission form of government tiff’s expert historian agreed with defendants that Mo- that proof of discriminatory intent was essential, plain- Blacks Had Occurred Disfranchisement of In 1911, after Complete Form of Government The City Commission Mobile’s Adoption of nearly asclear, though, asthey ought to havebeenon did not like multimember districts. The courts weren’t mostly dealing with the remedy phase,and it clearly member districts, mostly in the legislative area and Supreme Court hadafew casesdealing with multi- jorities? In the late 1960sandthe early 1970s the minorities are often outvoted byracial andother ma- that in large single-member districts blacks andother dering violated the Fifteenth Amendment. Gomillion vLightfoot equality among legislative districts, andthat in of the Fourteenth Amendment required numerical Supreme Court held that the Equal Protection Clause We all remember that in Reynolds vSims In the first Well, what about a“racial dilution” case,aclaim was not a motivating factor.” Plaintiffs’ witnesses Bolden trial, when plaintiffs did not agree 7 they held that racial gerryman- 6 the per gle-member commission form or mayor-council, and clined to change the city’s form of government to a sin- unconstitutionally. And, yet, on the remedy side, he defects test, and found that the commission form operated commission form of government, and he applied an ef- (M.D.Ala. 1974), a case against the City of Dothan’s judges–decided ally thought to be the gold standard for civil rights Middle District of Alabama–back then he was gener- constitutionality. factors anddiscriminatory effects assufficient for un- the Fifth Circuit weseemed stuck with the Zimmer 638 (1976 )(per curiam), seeBolden roll Parish School Board v. Marshall views expressed bythe Court of Appeals,” East Car- mance was“without approval of the constitutional it; the Supreme Court affirmed Zimmer Supreme Court hadits chancebackthen but muffed operation the test presented anightmare. The voting requirement, residence requirement]. In actual districts, majority vote requirement, anti-singleshot crimination] andso-called “enhancing factors” [large tenuous state policy, present effects from past dis- “primary factors” [lack of access,unresponsiveness, It wasavery complicated test, involving so-called test for racial dilution casesrather than an F.2d 1297(5th Cir. 1973)(en banc) adopted aneffects ing the issue. two, sort of blindly blundering through without notic- seemed not to focus onthe distinction between the kicked,” but the casesin the 1960sandthe 1970s distinguish between being tripped over andbeing wrote in THE COMMONLAW that “evenadogcan otherwise,” which wasless than clear. Justice Holmes ality. Some of the cases used the phrase or “designedly discriminatory tory intent were unconstitutional only uponproof of discrimina- the important question whether multimember districts The year after The old Fifth Circuit in Zimmer v. McKeithen , 485 , or whether onthe other handproof of effect Yelverton v. Driggers Zimmer sufficed as proof of unconstitution- Judge Frank Johnson in the , 370 F. Supp. 612 , 424U.S. 636, note 16.So, in but the affir- intent www.alabar.org test. 97 T H E Alabama Lawyer 98 T H E Alabama Lawyer between race andvote. 1969 election results showedanincredible correlation 2014 at age103]. Bivariate regression analysis of the did not vote. Langan lost to JoeBailey [who died in damaged anddestroyed wharves onMobile Bayand wealthy Springhill supporters were fooling with their Camille hit just before the election, andLangan’s “unsound onthe race issue.” And, third, Hurricane increasingly believed byconservative whites to be gan’s moderate white support faded becausehewas to havethreatening aspects at the polls. Second, Lan- Noble Beasley [who died in 2014], thought bysome cause of ablack voter boycott of the election led by he thought. First, his black support wasshattered be- election several events concurrently causedhis defeat, ans, moderate whites andblack voters, but in the 1969 Langan hadalways before held acoalition of veter- shed in Mobile politics. Longtime white moderate Joe Rumblings in Mobile remedy was entirely his idea, not mine]. Judge Johnson’s law clerk during that case, but the gold-plated the black area of town [confession: I was less. In short order, the white commissioners had voted by the two white commissioners, and so be help- single-member commissioner, he would simply be out- reasoned that if the black section of town had its own vide improved services to the black areas of town. He instead gave the city a period of time in which to pro- tionality of the commission form of government. later a lawsuit would be filed to challenge the constitu- it did not take a weatherman to know that sooner or Commission form. a lawsuit would befiled against the Mobile City for publication, but it seemed clear that at some point ticle dealing with racial dilution. It wasnot accepted Prichard submitted to the Alabama Law Review March 2016 In about 1971,Mayor A.J. Cooper The Mobile 1969city election wasamajor water- As Bob Dylan had sung, in the early to middle 1970s 8 of the City of an ar- the Voting Rights Act of 1965 a minority of voters–and that it violated Section 2of government operated to dilute the votes of black voters– They claimed that the at-large commission form of in the opinions’ names–filed aclass action lawsuit. the first named plaintiff whosename wasto beetched ing black citizens of Mobile–including Wiley Bolden, 1975 Bolden Sheppard–then an assistant city attorney but now a the Hand, Arendall firm as special counsel, and Steve his recommendation, the city hired Charlie Arendall of city attorney and was an expert in municipal law. At versity of South Alabama/New South commissioner. sioner and Gary Greenough was sort of the white Uni- white Springhill Catholic and Episcopalian commis- white Baptist commissioner, Bob Doyle was sort of the down way too much, Lambert Mims was sort of the commissioners, a disparate group indeed. To boil it no role in the lawsuit itself. to differentiate it from the NAACP proper]; they took fense Fund, Inc. [known backthen as“The Inc. Fund” pleadings were lawyers from the NAACP Legal De- Assisting wasEd Still of Birmingham, andonthe form their ownfirm, Blacksher, Menefee andStein. Menefee andGreg Stein of Mobile, whowould soon in the casewere James U.[“Jim”] Blacksher, Larry racially-mixed law firm in Mobile. The main lawyers Blacksher, Figures & Brown, which wasthen the only from single-member districts. plan or amayor/council form with council elections plan, either asingle-member districted commission the form of the city government to asingle member ments, andthat the remedy wasto order achangein tional under the Fourteenth andFifteenth amend- More than 40years ago,in 1975,several outstand- Fred Collins of Collins, Galloway & Smith was the Defendants included the City of Mobile and its three The plaintiffs’ law firm wasthen named Crawford, Case IsFiled in 9 and wasunconstitu- people, white people, historians, political scientists, and defendants called 13. The witnesses included black Davis Case The Trial of the Bolden less meaningless, andmaybe irrelevant. mer v. McKeithen form of government, andthat the Fifth Circuit’s Zim- tory intent in the 1911 adoption of the commission and heavily emphasized the needto prove discrimina- ington v. Davis, hammered home Washington v. Davis that?] brief for the city, filed onemonth after Wash- nate, wefigured weshould win. there were noblack voters in Mobile in 1911 to elimi- proof, not just discriminatory impact tent tutional claims, discriminatory in- read the caseto saythat for consti- lawyers for the city immediately destined to haveagreat impact. We 426 U.S. 229(1976), which was Court decided June 7,1976,the U.S. Supreme v. Davis The put me to work on the lawsuit. Yelverton v. Driggers the field and of Judge Johnson’s about my experience with the law in two years, and once I told Charlie Hand, Arendall where I had been for case. I was a young associate at plastic surgeon–was assigned to the On July 12, 1976, five weeks after Our 42-page [legal paper, 8½x14; remember Just five weeksbefore trial, on was arequired element of , the trial started. Plaintiffs called 24 witnesses Washington Washington v. Davis Decision effects elements were at least much case, Charlie , Washington v. . And, because political scientists, ordinary citizens.ordinary statisticians and The witnesses white people, black people, historians, included lawyers, bers we handed him our “Proposed Plans of Defendants” memory actually filed, or not? same daythat the City filed post-trial briefs. Was this cate of service wassigned byme on September 7,the copy wassigned byCharlie Arendall andthe certifi- mayor-council form of government. Mypersonal file ment, andnoneof these suggestions involved a an involuntary changein the city’s form of govern- though weobjected to being required to participate in ferent suggestions about aremedy if the City lost, styled “Proposed Plans of Defendants,” with five dif- the Covenant. age in some GSA warehouse right next to the Ark of with the 80or soboxesfrom the clerk’s file, is in stor- have easyaccessto the docket sheet, which along plan at all, but I don’t think that is correct. I donot My I havein my files aphotostatic copyof adocument memory is that in a conference in Judge Pittman’s cham- is vague after almost 40 years, but my Remedy For aProposed Filing of Plans The City’s The Issue of history of Mobile, and its present. nating testimony about the political citizens. There was extensive fasci- lawyers, statisticians and ordinary that the City did not submit any single-member districts. ted three different plans for nine plans for single member districts. dered both sides to submit proposed It hascome to bethought bysome Plaintiffs onSeptember 8submit- At the end of the trial, the Court or- www.alabar.org 99 T H E Alabama Lawyer 100 T H E Alabama Lawyer proposals the court was interested in receiving were the District Court was excused by the fact that the only lieve that the city’s failure to submit a proposed plan to council form of government,” and wrote that “I . . . be- single-member districts for councilmen, under a mayor- of proposed municipal government plans that called for tion with the District Court’s request for the submission in part based its affirmance on the City’s “noncoopera- about this particular issue that the Court of Appeals had U.S. 55 (1980)], Justice Blackmun in concurrence said 239, 246(5th Cir. 1978). fashion aremedy,” Bolden v. City of Mobile, 571F.2d plan, forcing the District Court to City refused to come forward with a Court by submitting nothing at all. we had thumbed our nose at the district mayor-council plan, not that to submit a proposed single-member avail ourselves of the “opportunity” selves means to me that we did not Pittman said we did not avail our- “[T]his opportunity” of which Judge said this about the proposed plans: copy]. Judge Pittman in his opinion been filed I doubt I would have kept a deed it was actually filed [if it had not the docket sheet for this “filing” if in- know whether there is any entry on than filing it with the clerk. I do not while he was sitting at his desk, rather March 2016 In the Supreme Court [ The Court of Appeals said, “The themselves of this opportunity. defendants chosenot to avail under amayor-council plan. The member districts for councilmen ent to the court proposed single- and defendants to draft andpres- The court requested the plaintiffs City of Mobile v Bolden of the “opportunity” to did notavail ourselves district mayor-council district plan, notthat we had thumbed ournoseat means to methat we the Court by submit- the Court “[T]his opportunity” “[T]his Pittman saidwe did submit aproposed not avail ourselves ting nothingat all. single-member single-member of whichJudge , 446 [Does Springhill get the police commissioner? Does sioners were elected from single member districts the commission form would not work if the commission form of government was unconstitutional. Since facts in Mobile, the operation of the at-large commis- applied, and (4) applying the ington v. Davis fects test race dilution case] a few months before Zimmer v McKeithen thought that, it could have said so when they affirmed intent rather than effect, and if the Supreme Court had imposing a requirement of a showing of discriminatory drance,” (3) Washington v. Davis , and so the effects test of blacks register and vote without hin- the Voting Rights Act of 1965, by the 1901 constitution, (2) “[s]ince had been completely disfranchised race-proof situation,” since blacks ture in 1911 was acting in a ernment was adopted, “the legisla- when the commission form of gov- face was neutral” since in 1911 tantly held (1) that “the statute on its difficult, but Judge Pittman impor- pages into a couple of sentences is unconstitutional. Boiling down 30 form of government in Mobile was He held that the at-large commission some 30 pages in the West reporter. 423 F.Supp. 384 (S.D. Ala. 1976), ported as handed down his opinion, now re- on October 21, 1976, Judge Pittman The Trial Court The Opinion in utilizing single-member districts.” variations on a mayor-council plan Roughly three months after trial, [the Fifth Circuit’s Bolden v. City of Mobile Zimmer was not a major case effects test to the en banc Zimmer ef- still Wash- , crimination, writing that: ton v. Davis completely rejected the City’s argument that Washing- v. City of Mobile, 571F.2d 239(5th Cir. 1978). They “Wine andDine.” the Mobile Register sent aseries of very large legal bills to the City, and to the Supreme Court if necessary. Mr. Rhyne’s firm Rhyne & Rhyne,to handle the appeals, especially that pal lawyer named Charles S. Rhyneof the D.C.firm Supreme Court. The city hired avery famous munici- handle the appeal, which clearly would goto the the case. About that time the city hired alawyer to Court of Appeals The Affirmance by the to me asadefense lawyer, andevenif hewere wrong. Pittman, much beyondwhat seemed reasonable, even pending appeal. a mayor-council government, but stayed the remedy bay get the finance slot?], he ordered the imposition of Cottage Hill get the garbage trucks? Does down-the- The Fifth Circuit affirmed JudgePittman in Bolden Meanwhile I changedfirms andwasnolonger in The city appealed. The newspaper vociferously attacked Judge plan. We squarely reject this contention . . . . tentional discrimination in the enactment of the 429 U.S. 252 (1977)] to require a showing of in- Heights Washington v. Davis relevant. . . .the city would have us interpret where racial considerations could not have been plan is said to have been adopted in a context constitution in 1901, and therefore the at-large been effectively disfranchised by the Alabama is immune from Constitutional attack. Blacks had was enacted under “race-proof” circumstances, it The city ardently asserts that since the 1911 plan [ v. Metropolitan Housing Dev’p Corp. required ashowing of intentional dis- began to refer to that firm as

and [ Village of ] Arlington 10 , rality said that “[o]ur decisions havemade clear that constitutional issues. teenth Amendment, andsohe went to the ing Rights Act provisions added nothing to the Fif- hanging. ered three main points, andin note 21left afourth Marshall. dissents were filed byJustices Brennan, White and Stevens concurred “in the judgment.” Three separate tice Blackmon concurred “in the result” andJustice Burger andJustices Powell andRehnquist joined. Jus- four-member plurality opinion in which Chief Justice with nomajority opinion. Justice Stewart wrote a U.S. 55(1980). later. It wasreported at City of Mobile v. Bolden , 446 a hard copyof the opinion, which I still have36years court. I took the subwayto the Supreme Court andgot bitterness between andamong the judges in open ington Post that it hadbeenannouncedwith incredible until in those pre-computer daysI read in the Wash- nounced andI did not knowit hadbeenannounced did not get there until after the opinion wasan- chamber that daywith abunchof newjudges, but we 1980. As it happened,I wasin the Supreme Court The Supreme Court issued its opinion on April 22, was appointed U.S. Magistrate in the spring of 1979. March 19,1979,andsecondonOctober 29,1979.I the Supreme Court. It wasargued twice, first on The Supreme Court City of Mobile Casein Judge Pittman. McKeithen The Court of Appeals stuck strongly to its Zimmer v. Second, onthe Fifteenth Amendment claim, the plu- First, onthe statutory claim, hewrote that the Vot- Justice Stewart’s plurality opinion for the four cov- The nine justices produced six separate opinions, The so-called “Wine & Dine” firm took the caseto discriminatory effects test, andaffirmed www.alabar.org 101

T H E Alabama Lawyer action by a State that is racially neutral on its face vi- to prove that Mobile’s present governmental and elec- olates the Fifteenth Amendment only if motivated by toral system has been retained for a racially discrimina- a discriminatory purpose,” and “none has questioned tory purpose, we are in no position now to say.” Most of the necessity of showing purposeful discrimination in the rest of the plurality opinion just crossed swords with order to show a Fifteenth Amendment violation.” the dissent. And, he wrote, “[h]aving found that Negroes in Mo- Justice Blackmun concurred “in the result.” He bile ‘register and vote without hindrance,’ the District wrote that he was “inclined to agree with Mr. Justice Court and Court of Appeals were in error in believing White” that, assuming proof of intent was required, that the appellants invaded the protection of that the findings of the district court supported an infer- Amendment in the present case.” ence of intent.”11 But he concurred in the result be- Third, on the Fourteenth Amendment claim, the plu- cause he thought that even if the plaintiffs had made rality held that proof of purpose was also required there: out a case of intentional discrimination, the district court’s remedy–changing the form of the city’s gov- Despite repeated Constitutional attacks upon ernment from commission to mayor-council–was an multimember legislative districts, the Court has abuse of discretion. As discussed above, he said that consistently held that they are not unconstitu- the city’s refusal to submit a single-member mayor- tional per se . . [cites omitted]. We have recog- council plan was justified, the only justice who ad- nized, however, that such legislative dressed the issue of the city’s plan. apportionments could violate the Fourteenth Justice Stevens filed an opinion concurring “in the Amendment if their purpose were invidiously to judgment.” His opinion seems a little unfocused and minimize or cancel out the voting potential of talked a lot about Gomillion v. Lightfoot and gerry- racial or ethnic minorities. [cites omitted]. To mandering. A fair statement of his concurrence is that prove such a purpose, it is not enough to show there are both good and bad reasons to favor continu- that the group allegedly discriminated against ing the commission government; undoubtedly some has not elected representatives in proportion to white racists want to continue it just to keep black its numbers.[cite omitted]. A plaintiff must prove voters down, but, he wrote, we just cannot have a that the disputed plan was “conceived or oper- workable system where that fact invalidates a form of ated as [a] purposeful device[] to further racial government, so he concurred. discrimination” [cite omitted]. Justice Brennan dissented in a short single para- This burden of proof is simply one aspect of the graph which said that he agreed with Marshall that basic principle that only if there is purposeful discriminatory effect alone sufficed but that, even if it discrimination can there be a violation of the did not, the record supported a finding of discrimina- Equal Protection Clause of the Fourteen Amend- tory intent. ment. Justice White dissented. He reviewed the details of But, fourth, a big caveat on the issue of “intentionally the trial court’s fact findings and concluded that they discriminatory maintenance” was in the plurality’s foot- were in accord with past precedent and, echoing the 12 note 21, which noted that several attempts to change the odd usage of Justice Blackmon, that “the findings of form of government had been made [at least one at- the district court support an inference of purposeful discrimination in violation of the Fourteenth and Fif-

Alabamatempt Lawyer sought a change to a mayor-council form] and had failed, and “[w]hether it may be possible ultimately teenth Amendments.” T H E

102 March 2016 The “right” question, as the Report empha-

Justice Marshall dissented. He sizes repeatedly, is Third, two years after the based his dissent on the language Supreme Court’s decision in Bolden from “Fortson v. Dorsey, 379 U.S. whether “as a result of and about 10 weeks after Judge 433 (1965), the first vote-dilution Pittman’s ruling on remand in case to reach this Court,” which the challenged Bolden, in 1982, Congress amended said that if “designedly or other- Section 2 of the Voting Rights Act wise,” a multimember district so that in Voting Rights cases [the “would operate” to minimize the practice or structure only area in which the Act applied] voting strength of racial or political proof of discriminatory intent was elements,” then it is unconstitu- plaintiffs do not have not required, but just proof of dis- tional, and that is not an intent- criminatory impact.16 The U.S. based test. an equal opportunity Supreme Court in Thornburg v. Gingles, 478 U.S. 30, 43-44 (1986) What Happened to participate in the said about it that: The Senate Report which accom- After the political processes panied the 1982 amendments elaborates on the nature of § 2 vi- Supreme Court and to elect candi- olations and on the proof re- Opinion? quired to establish these First, on remand in 1982, Judge dates of their choice.” violations.[fn7] First and fore- Pittman held a new trial and, with most, the Report dispositively re- very extensive new historical evi- jects the position of the plurality dence, on April 15, 1982, found that “invidious racial in Mobile v. Bolden, 446 U.S. 55 (1980), which reasons” were a “substantial and significant part” of required proof that the contested electoral prac- the plan, and he found an intent to discriminate in the tice or mechanism was adopted or maintained original adoption of the commission plan in 1911, and with the intent to discriminate against minority otherwise, and that it was maintained with a discrimi- voters.[fn8] See, e. g., S. Rep., at 2, 15-16, 27. natory purpose, and was unconstitutional under the The intent test was repudiated for three principal Bolden tests.13 Looking to the 1983 election, he said reasons–it is “unnecessarily divisive because it that if the legislature didn’t fix it, he would. A consent involves charges of racism on the part of individ- decree was reached and approved by the Court on ual officials or entire communities,” it places an April 7, 1983. “inordinately difficult” burden of proof on plain- Second, two of the plaintiffs’ lawyers in the case, tiffs, and it “asks the wrong question.” Id., at 36. Jim Blacksher and Larry Menefee, wrote a law review The “right” question, as the Report emphasizes article about the case in the Hastings Law Journal.14 It repeatedly, is whether “as a result of the chal- was cited several times by the Supreme Court in lenged practice or structure plaintiffs do not have Thornburg v. Gingles15 in 1986, which essentially an equal opportunity to participate in the politi- adopted their law review article as a Constitutional cal processes and to elect candidates of their test, certainly a wonderful accolade for any authors. choice.”[fn9] Id., at 28. See also id., at 2, 27, 29, Alabama Lawyer

n. 118, 36. T H E

www.alabar.org 103 When no showing of intentional discrimina-

Fourth, in 1985, the legislature tion has been made, 471, 479, 117 S. Ct. 1491, 1498 passed Ala.Code §11-44C-1, which (1997) (internal quotation marks is locally still called “The Zoghby “a sufficiently large omitted); see Thornburg v. Gingles, Act” after its author, Mary Zoghby. 478 U.S. 30, 50-51, 106 S. Ct. That statute authorized an election minority population” 2752, 2766-67 (1986). The on May 14, 1985 to choose be- Supreme Court first established tween the consent decree in Judge means greater than these conditions in Gingles, when it Pittman’s court on April 7, 1983 interpreted for the first time the and a form of government under 50 percent of the 1982 revisions to section 2 of the Alabama law as a “Class 2 Munici- Voting Rights Act. See Gingles, 478 pality” under §11-44C-1 et seq. The voting-age population. U.S. at 50-51, 106 S. Ct. at 2766- voters approved the statutory form 67. “When applied to a claim that so that’s where we are in Mobile. single-member districts dilute mi- Outside Mobile, though, the firefight continues. nority votes, the first Gingles condition requires the possibility of creating more than the existing number of reasonably compact districts with a suffi- What Is the Rule Now? ciently large minority population to elect Consider the case dealing with the Alabama House candidates of its choice.” Johnson v. De Grandy, of Representatives and Senate electoral districting, 512 U.S. 997, 1008, 114 S. Ct. 2647, 2655 (1994). Alabama Legislative Caucus v. State of Alabama, 988 When no showing of intentional discrimination has F. Supp.2d 1285 (M.D.Ala. 2013)(three-judge Court), been made, “a sufficiently large minority popula- reversed, ___U.S. ___, 135 S.Ct. 1257, 191 L.Ed. 2d tion” means greater than 50 percent of the voting- 314 (2015)(reversed on racial gerrymandering claim, age population. Bartlett v. Strickland, 556 U.S. 1, but racial dilution claim not reached; “[t]he District 15, 18-19, 129 S. Ct. 1231, 1244-46 (2009) (plural- Court remains free to reconsider [the racial dilution] ity opinion). And the first Gingles condition should claims should it find reconsideration appropriate”). not be read to define dilution as a failure to maxi- Here’s what the three-judge court said the rule is now, mize. De Grandy, 512 U.S. at 1016, 114 S. Ct. at after Congress in 1982 amended Section 2 of the 2659; see also id. at 1017, 114 S. Ct. at 2660 (“One Voting Rights Act to make Bolden irrelevant in voting may suspect vote dilution from political famine, cases: but one is not entitled to suspect (much less infer) dilution from mere failure to guarantee a political A. Vote Dilution feast. . . . Failure to maximize cannot be the meas- “A plaintiff claiming vote dilution under § 2 must ure of § 2.”). initially establish that: (i) the racial group is suffi- The Supreme Court in reversing did not opine upon ciently large and geographically compact to consti- the accuracy of that statement, and so neither do I. tute a majority in a single-member district; (ii) the Upon remand from the Supreme Court the case has group is politically cohesive; and (iii) the white been extensively briefed. If you are interested, you majority votes sufficiently as a bloc to enable it . . . might wish to examine the extensive briefing in the usually to defeat the minority’s preferred candi-

Alabama Lawyer trial court, available of course in the Middle District date.” Reno v. Bossier Parish Sch. Bd., 520 U.S. L

T H E of Alabama on the PACER system.

104 March 2016 Endnotes 11. A good edit might have re-phrased it that the facts supported a proper inference of intent, and that the inference supported the findings of the District Court, but, 1. D. Bagwell, “The Magical Process”: The Sayre Election Law of 1893, 25 ALABAMA hell. They are on the Supreme Court and obviously I am not. REVIEW 83 (1972), which gets cited in occasional federal voting cases such as Harris v. Siegelman, 695 F. Supp. 517 (M.D. Ala. 1988). 12. See note 10. 2. OFFICIAL PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF 13. Bolden v. City of Mobile, 542 F. Supp. 1050 (S.D. Ala. 1982). ALABAMA 1901, Vol. I, page 8. 14. Blacksher & Menefee, From Reynolds v. Sims to City of Mobile v. Bolden, 34 Hast- 3. M. McMILLAN, CONSTITUTIONAL DEVELOPMENT IN ALABAMA: A Study in Politics, ings L. J. 1 (1982). the Negro, and Sectionalism 354 (1955). 15. 478 U.S. 30 (1986). 4. S. HACKNEY, POPULISM TO PROGRESSIVISM IN ALABAMA 148 (1969); McMillan at 16. PL 97-205 (Act of June 29, 1982), 96 Stat. 135, and it is now 52 U.S.C. §10301, see 268. discussion in Thornburg v. Gingles, 478 U.S. 30 (1986) and Chisom v. Edwards, 839 5. McMillan at 354. F.2d 1056, 1061-63 (5th Cir. 1988)(Frank Johnson, J.). 6. 377 U.S. 533 (1964). 7. 364 U.S. 339 (1960). David A. Bagwell 8. Mr. Cooper now has an office in Daphne. David A. Bagwell is a solo lawyer in Fairhope. He 9. The original Section 2 more or less restated the Fifteenth Amendment, as the is 70 and is trying to retire. He may be reached by Supreme Court held in 1980 in Bolden, as discussed below, and was originally 42 electrons sent to [email protected], or by U.S.C. 1973(c). It was amended in 1982 to overrule Bolden, PL 97-205 (Act of June telephone at (251) 928-2970. Forty years ago, in 29, 1982), 96 Stat. 135, and it is now 52 U.S.C. §10301. 1975-76, he was one of the lawyers in the Bolden 10. 571 F.2d at 245-46. Mobile city government litigation in the District Court only, but after that he changed firms and withdrew from the case before all the appeals were briefed and argued.

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www.alabar.org 105 Navigating the Ethical Maze of E-Discovery in Light of The Recent California Bar Ethics Opinion By Marcus R. Chatterton and Elizabeth J. Flachsbart

Model Rule of Professional Con- duct 1.1 on competence to include a ast summer, the State Bar of requirement that lawyers keep California issued ground- abreast of “changes in the law and L breaking Formal Opinion its practice, including the benefits 2015-1931 explaining that the ethi- and risks associated with relevant cal duties of competence and confi- technology.”2 Lawyers who fail to dentiality require proficiency in appreciate the importance of pre- e-discovery. Although this opinion serving, collecting and producing is the first of its kind around the electronically-stored information country, it is part of a greater move- (“ESI”) are putting their practice, ment in the legal profession recog- their cases and even their own nizing that, while understanding pockets at risk on a daily basis. This and practicing e-discovery was article will examine the recent Cali- once a “cutting-edge skill,” it is fornia ethics opinion as well as real now fundamental to the practice of cases to illustrate the potential ethi-

Alabamalaw. Lawyer In 2012, for example, the cal risks at each stage of the e-dis-

T H E American Bar Association updated covery process. 106 March 2016 www.alabar.org 107

T H E Alabama Lawyer 108 T H E Alabama Lawyer changing technologies. of competence must evolve with sizes that alawyer’s age-old duty Formal Opinion 2015-193 empha- 2015-193 Ethics Opinion California Bar also equipped to handle the ESI. ing the representation, if he is not risk anethical violation byaccept- the legal issues of the casemay even alawyer whois anexpert in tronic discovery is soessential that needs of the case. case, to assessthe e-discovery lawyer, at the outset of every new ern duty of competence requires a new technology. Instead, the mod- to plead ignorance in the face of is nolonger anoption for lawyers California bar makes it clear that it works, the cloud andmore. The cell phones,social media net- cally–in databases, email servers, form of evidence stored electroni- nearly every caseinvolves some resentation. knowledge or (3) decline the rep- expert whopossessesthe requisite ate with alawyer or technology e-discovery, (2) consult or associ- the skills necessary to handle the fers him three options: (1) acquire his ability, the California bar of- e-discovery demands are beyond sessment, hefinds that the den. If, after conducting that as- of handling the e-discovery bur- then must decide if heis capable March 2016 The State Bar of California’s 5 Understanding elec- 4 The lawyer 3 Today, against the client’s chief competitor. torney represents Client in a case nine skills. In the hypothetical, At- ligations and risks related to these thetical situation to illustrate the ob- Produce responsive non-privi- • Collect responsive ESI in aman- • Perform data searches; • Engage in competent andmean- • Identify custodians of potentially • Advise the client onavailable • Analyze andunderstand a • Implement/cause to implement • Initially assesse-discovery • discovery: competently manage his client’s e- must beable to perform in order to more knowledgeable colleague, his ownor in conjunction with a tial skills which alawyer, either on The California bar lists nine essen- means to “handle” e-discovery. asking themselves what exactly it a. California Bar’s Nine Essential The California bar uses a hypo- appropriate manner. leged ESI in arecognized and that ESI; and ner that preserves the integrity of e-discovery plan; opposing counsel concerning an ingful meetings andconfer with relevant ESI; vation of ESI; options for collection andpreser- client’s ESI systems andstorage; procedures; appropriate ESI preservation needs andissues, if any; Many lawyers today may still be E-Discovery Skills 6 7 copy form. been shown to Attorney in hard- ESI on its network has already covery. come to a joint agreement on e-dis- trated judge to order the parties to but Attorney refuses, causing a frus- The other side demands e-discovery, tially breached his ethical duties of lawyer in the hypothetical poten- ment deletion routine. due to the client’s ongoing docu- large holes in the produced data who informs him that there are torney hires an e-discovery expert the file of data from the search, At- Unable to figure out how to open sel accusing him of spoliation. ceives a letter from opposing coun- his computer without opening it. ously reviewed, he saves the file to hard-copy documents he has previ- Believing that it will match the retrieved by the vendor’s search. ceives an email copy of all the data Following the search, Attorney re- supervision or further instruction. to the client’s network without any ney allows the vendor direct access produced, privileged ESI. agreement for any inadvertently sel also offers a claw-back upon search terms. of the client’s network using agreed- posing counsel will conduct a search whereby a vendor selected by op- documents being produced. leged and proprietary, irrelevant terms led to a number of both privi- also discovers that the broad search Client informs Attorney that all The California bar noted that the A few weeks later, Attorney re- 8 The parties agree to a plan 11 Relying on this, Attor- 9 Opposing coun- 16 The expert 10 17 15 14 13 12 direction.” such documents, pending further rects those custodians to preserve documents (including ESI) that di- sess potentially relevant ated with the client who may pos- client to persons or entities associ- issued to, by or on behalf of a tion measures is alitigation hold. common andimportant preserva- the first skill. Oneof the most vation measures” contemplated by issue the “appropriate ESI preser- skills which allow alawyer to skills are essentially preparation tially relevant ESI. The latter three identifying custodians of poten- collection andstorage of ESI and and storage, advising the client on standing aclient’s ESI systems preservation measures, under- implementing appropriate ESI preservation of electronic data: essential e-discovery skills involve ESI Preserving fornia bar hypothetical. strated byreal casesandthe Cali- stages of discovery, asdemon- around the corner of eachof these look at the ethical pitfalls waiting producing ESI. What follows is a steps in preserving, collecting and have made costly, accidental mis- ity for many lawyers. Real lawyers fornia bar’s hypothetical is areal- case. Although fictional, the Cali- multiple times in his theoretical competency andconfidentiality relevant documents, and thus the A litigation hold is a “directive Four of the California bar’s nine 18 The duty to preserve ing its auto-delete policies, sponsive data–either by suspend- routine or automatic deletion of re- that the client adequately halts the ments, the lawyer must also ensure all custodians of relevant docu- dition to issuing a litigation hold to Investments, LLC Title Insurance Co. v. Captiva Lake the plaintiffs in litigation hold. Take, for example, be sanctioned for failing to issue a a. Duty to Issue Litigation Hold sanctions. enforce it, may subject a lawyer to gation hold, as well as failure to gation hold. Failure to issue a liti- that is within the scope of the liti- preserving a sound copy of all ESI be preserved for litigation. potentially relevant documents will propriate steps to ensure that any procedures so that he may take ap- self with the client’s data retention the lawyer must familiarize him- from the client’s system. numbers of emails were deleted own document policy, unknown the client’s failure to understand its sult of the lack of litigation hold and an actual complaint. which can occur far in advance of sonably anticipates litigation,” triggered as soon as a party “rea- duty to issue a litigation hold, is tion procedure” in place. company had a “document collec- issue a litigation hold, given that the uinely believed it did not need to the failure to issue the litigation ern District of Missouri found that Even absent bad faith, a party can Fidelity National . 22 Fidelity gen- 19 At that point, 24 23 The East- As a re- 20 21 In ad- or actual complaint. advance of an can occur far in litigation,” which anticipates “reasonably as soon as a party hold, is triggered issue a litigation thus the duty to documents, and preserve relevant The duty to www.alabar.org 109

T H E Alabama Lawyer 110 T H E Alabama Lawyer the destruction of any March 2016 relevant documents, that the inadequate actually resulted in to determine if any plaintiff’s expense, depositions, at the defendant to take Importantly, even it still allowed the though the court such destruction found it unlikely litigation hold had occurred. stead, the lawyer is ethically the litigation hold is issued. In- serve evidence donot stop after b. Duty to Monitor Compliance delete documents. mation and requested that they not viduals in custody of relevant infor- verbal instructions to certain indi- ten litigation hold, but instead gave Scentsy, Inc., did not issue a writ- sel of the plaintiff company, pose sanctions. to show the necessary intent to im- hold, in and of itself, was sufficient occurred. mine if any such destruction had at the plaintiff’s expense, to deter- the defendant to take depositions, relevant documents, it still allowed resulted in the destruction of any inadequate litigation hold actually the court found it unlikely that the the sanctions motion. to pay attorney’s fees for the cost of puter system and required Fidelity court to inspect the company’s com- the consultant appointed by the dered Fidelity to pay half the cost of tion for the deleted documents, or- issued an adverse inference instruc- the absence of bad faith, the court ing the plaintiff’s claims entirely. vealed, it would consider dismiss- that if any destruction was re- the complaint was filed. sations took place around the time cise.” hold was both “late and impre- determined that this oral litigation A lawyer’s obligations to pre- In another case, the general coun- with Litigation Hold 29 Importantly, even though 30 The court also warned 25 As a result, despite 27 These conver- 26 28 The court 31 patent infringement lawsuit. that Apple, Inc. would likely file a being filed, onceit became clear seven months prior to acomplaint hold to some of its employees ics promptly issued alitigation the document custodians. hold is actually being followed by obliged to ensure that the litigation Samsung’s errors asfollows: sanctions, the court described support of its decision to issue measures were implemented. litigation hold to ensure that its cause it failed to follow uponits part), Samsung wassanctioned be- absence of badfaith onSamsung’s spite the prompt issuance (and the For example, Samsung Electron- sung custodian was at all in whether even a single Sam- times, Samsung never checked its complaint. And again, at all more months, after Apple filed dividual employees for seven tices and to follow up with in- instead waited to send such no- vided no follow-up, and dence arose. Samsung pro- duty to preserve relevant evi- handful of employees, when its August 2010, beyond a select send litigation hold notices in this regard. Samsung failed to see, Samsung did nothing in them. As far as the court can claims it communicated to detailed instructions Samsung actually complying with the whether its employees were sung had a duty to verify matic destruction policy, Sam- In light of its biweekly auto- 32 33 De- In sanctions. lawyer andthe client may suffer hold is followed, or else both the training or auditing, to ensure the volved, potentially providing stead, hemust remain actively in- once heissues alitigation hold. In- preserve documents to his client does not passthe responsibility to The bottom line is that alawyer instruction against Samsung. court issued anadverse inference hold, among other problems, the tor compliance with the litigation As aresult of this failure to moni- ance with legal holds: strategies to help monitor compli- the following suggestions as The Sedona Conference ficient to show willfulness. in place. This is more than suf- 14-day destruction policy was rectives, while at all times the compliance with the given di- to track compliance. ance with the legal hold and facilitate employee complicated “legal hold” servers to tomation software anddedi- tools, suchaslegal hold au- employing technological zations may also consider sampling procedures. Organi- noncompliance andaudit and tive consequencesfor tions from custodians, nega- requiring ongoing certifica- plish this may include ance. Some tools to accom- legal hold to ensure compli- ways to regularly monitor a Organizations should develop 37 36 gives 34 35 may find it harder to believe that serving corporate documents, they understand the importance of pre- While some clients may intuitively tance of electronic evidence. ucating their clients onthe impor- must nowbein the business of ed- cell phone. information stored onaparty’s includes text messages andother known not to delete them. old girl whowould not have innocuously deleted bya22-year- even if they were, the posts were posts were not relevant, andthat Plaintiff’s counsel argued that the she claimed to love her job. had deleted Facebook posts where fendant alleged that the plaintiff ment discrimination case,the de- client’s hard drive. In oneemploy- serve evidence goesfar beyonda evidence. As such,the duty to pre- only the beginning of electronic c. Scope of Litigation Hold lawyers in the social media age: issued animportant reminder to court rejected both arguments and Similarly, the duty to preserve In today’s world, the computer is full extent of that obligation.” ther, explained to Plaintiff the to preserve evidence and, fur- have informed her of her duty counsel, her counsel should ments. Once Plaintiff retained delete her Facebook com- have known better than to ing to her counsel, would not female and, therefore, accord- Plaintiff is young or that she is [I]t is of no consequence that 41 Lawyers, therefore, 39 38 The 40 in preparation for production. of sorting the relevant documents must tackle the cumbersome task fully preserved evidence, hethen ESI. Oncealawyer hassuccess- these things across all mediums of with suchdirections–and doall vation andmonitor compliance uments in order to mandate preser- storage, contact custodians of doc- derstand his client’s electronic ethical duties, the lawyer must un- for alawyer. To comply with his discovery process, is nosmall feat while only the beginning of the e- on adaily basis. as they are accustomed to doing phone andsocial media accounts and clean out their personal cell they are not permitted to update documents for production: “engage implicate the process of sorting listed in the California Bar opinion a. Recommendations of California any privileged documents. are located while also protecting ensure that all relevant documents hurdle is sorting the documents to safely preserved, a lawyer’s next Once these documents have been in the wake of a litigation hold. enormous amounts of documents can result in the accumulation of sive capacity for electronic storage, preserve, combined with the mas- Collecting ESI The preservation of evidence, Three of the nine core duties The broad scope of the duty to State Bar www.alabar.org 111

T H E Alabama Lawyer 112 T H E Alabama Lawyer lawyer’s harmful mistakes. case–could have prevented the e-discovery expert to consult on the medial measure–hiring an mittee points out that a minor review the data the vendor gathered. to monitor the vendor or even recess to his client’s network, failing allowed the vendor unfettered ac- terms could cause. The lawyer then tial harm that broad or incorrect lacked an appreciation of the poten- client’s database even though he appropriate search terms for his with opposing counsel to determine mistakes on this front. First, he met bar’s hypothetical made numerous The lawyer from the California preserves the integrity of that ESI.” lect responsive ESI in a manner that “perform data searches” and “col- concerning an e-discovery plan,” and confer with opposing counsel in competent and meaningful meet searches. work and supervise the vendor’s vendor to search the client’s net- on the implications of allowing a priately targeted, counsel the client search terms that were more appro- expert could have helped devise the lawyer now must monitor those be compounded by the outsiders, as bility and responsibility may only other hand, an lawyer’s ethical lia- covery demands of a case. On the not equipped to handle the e-dis- vendors when the lawyer alone is bring in outside consultants and hand, lawyers are encouraged to fornia bar’s opinion. On the one lights a tension inherent in the Cali- March 2016 The California bar ethics com- 43 This illustration high- 42 An firm to handle e-discovery. HM Electronics fense counsel LeClairRyan LLP in the reins to third-party vendors. De- trates the dangers of handing over v. R.F. Technologies, Inc. complete and appropriately limited. vendor, ensuring that the search is remain actively involved with the duty to supervise requires that he not absolved. Instead, the lawyer’s vendor, his ethical obligations are lawyer hires an expert or outside uments to be sorted. Even if a ciency or the sheer volume of doc- client’s lack of technological profi- or vendor, either because of the will still require an outside expert spite these benefits, many cases eliminating outside vendors. help minimize a client’s risk by be cost-efficient, time-efficient and vendor. In-house e-discovery can cide whether to hire an outside ument review, a lawyer must de- b. Ethical Considerations pervise the subsequent searches. perative that the lawyer actively su- those decisions are made, it is im- search should be conducted. Once conduct searches and how the decisions regarding who should it is critical that lawyers make good much potential for ethical missteps, mistakes or violations. With so able for any potential e-discovery all while remaining ultimately li- contractors in addition to his client, outside firm used broad search The case of When faced with large-scale doc- Regarding E-Discovery Vendors HM Electronics, Inc. hired an outside 45 illus- 46 44 The De- equate level of supervision: court highlights the woefully inad- fense counsel O’Leary andthe following exchangebetween de- happened under their watch. The explain howthe errors could have court looked to defense counsel to been inappropriately withheld, the than 375,000pagesof ESI had ments. even a sample of the withheld docu- ileged. withheld nearly every email as priv- the footer of every email, the vendor included a confidentiality phrase on fendant company’s email signature ments had been produced. all responsive, non-privileged docu- the court on multiple occasions that lawyer vehemently asserted before held as privileged. the word “confidential” being with- terms, resulting in every email with Once it became clear that more don’t knowthe methodology. duct the ESI search, so I MR. O’LEARY: I didn’t con- you did conduct. understand the methodology MS. HERRERA: I’d like to by checking computers. everything when we did that sponse, though. We produced MR. O’LEARY: That’s my re- not really my question. MS. HERRERA: Well, that’s has beenproduced. MR. O’LEARY: Everything for communication[s]? client conduct anESI search MS. HERRERA: Did your 49 48 Yet, LeClairRyan’s lead LeClairRyan did not review 47 Because the de- 50 sponded with a scathing reminder: needed further review, the court re- him that privileged documents the outside firm for not informing the blame off to the paralegals at been produced. the judge that all documents have side firm, heresolutely declares to search being conducted bythe out- practically nounderstanding of the off onthem. covery responses before signing pleteness andcorrectness of dis- “reasonable inquiry” into the com- which requires alawyer to make a Rule of Civil Procedure tions were in violation of Federal at the client’s ESI data. in reality hehadnot evenlooked uments hadbeenproduced, when duties byrepresenting that all doc- that O’Leary violated his ethical When O’Leary attempted to pass Despite the fact that O’Leary has there is a transition between ened-not diminished-when that these duties are height- ered data is accounted for, and ESI, and to ensure that all gath- about the source and extent of process, to be knowledgeable engaged in the discovery is their duty to become actively still do not, comprehend that it Ryan attorneys did not, and duced what they had. conducted the search andpro- them. *[T]hey obviously They did soandweproduced documents ontheir computer. They were told to look for This excuse shows LeClair- 53 The court concluded 52 These declara- 54 51 26(g), for court-imposed sanctions. may find himself personally liable Civil Procedure able inquiry” under covery responses without a “reason- to certify the completeness of dis- searches. He must be certain never monitoring the results of the the searches being performed and an active role in both understanding Accordingly, the lawyer must take answer to the client and to the court. though, not the vendor, who must of documents. It is the lawyer, an otherwise unmanageable maze covery and guide a lawyer through excellent tool to help expedite dis- gate, but verify. Vendors can be an with e-discovery vendors is dele- covery dispute. and fees expendedduring the dis- O’Leary personally for all costs against LeClairRyan and Thomas plaintiff compensatory sanctions ery infractions, the court awarded As aresult of the multiple discov- inference instruction. for issue sanctions andanadverse court granted plaintiff’s request Ultimately, the name of the game dating of the privilege log. held as privileged and the up- and type of documents with- ology was used, the amount what privilege review method- whether one was conducted, the privilege review, including porarily-involved firm about asked the paralegals at the tem- LeClairRyan LLP should have sel, Thomas O’Leary and cal to discovery. As lead coun- firms or other personnel criti- 56 26(g), or else he In addition, the Federal Rule of 57 58 55 sanctions. for court-imposed liable personally may findhimself 26(g), orelsehe of CivilProcedure under Federal Rule able inquiry” without a “reason- discovery responses completeness of never the to certify He mustbecertain www.alabar.org 113

T H E Alabama Lawyer 114 T H E Alabama Lawyer March 2016 original qualities. failing to produce order to preserve the document in the document defense counsel court found the court the document’s Ultimately, the or color TIFF in native format negligent for stein ment is asanctionable offense. the form or metadata of adocu- taken the approach that altering native form. Some courts have produced in formats besides their color andformatting if they are ments may lose important original metadata. Further, some docu- tion date or other elements of ument may changethe modifica- merely opening or copying adoc- dling electronic documents, sary e-discovery skills. When han- of the ESI,” among the nine neces- manner that preserves the integrity “Collect[ing] responsive ESI in a Producing Documents in a. leged documents. tion and(2) the protection of privi- issues: (1) the format of produc- should beaware of two keyethical ing responsive documents, lawyers stages. In particular, whenproduc- ethical pitfalls than the first two stage is noless rife with potential e-discovery road, the production though seemingly the endof the duce responsive documents. Al- next challenge is to properly pro- pervised searches, the lawyer’s Producing ESI Due Diligence (CDD) form in quina document. The defendants in Co- that preserves the integrity of the producing documents in aformat Coquina Investments v. Roth- The State Bar of California lists In the wakeof appropriately su- Appropriate Format 59 produced akey Customer illustrates the importance of qualities. preserve the document’s original tive format or color TIFF in order to ing to produce the document in na- defense counsel negligent for fail- evidence at trial. The PDF version wasentered into barely legible. and the “HIGH RISK” header was PDF, it became black-and-white plaintiffs. black andwhite PDF format to the RISK.” across the top reading “HIGH was in color andhadared banner its native format, the document editing information, waslost. all metadata, suchasarchive and compressed, vertical column and nal document wasprinted in a appeared horizontally onthe origi- for lawyers whowant to receive in native form, the best practice that the documents were produced Investments costs from the sanctions motions. dered to pay the plaintiff’s fees and defendant and its lawyer were or- look of the original form. continue despite knowledge of the lowing the production error to termined to have been willful in al- inal document. banner or other qualities of the orig- more convinced by the bright red lation that the jury may have been production, based mostly on specu- fered prejudice as a result of the court held that the plaintiff had suf- ness onanelectronic database. kept in the normal course of busi- Ultimately, the court found the Although the court in Coquina 62 66 Once printed in asa 60 The defendant was de- The CDDform was ultimately ensured 63 68 Accordingly, the Also, text that had 65 67 The 64 61 In of FRCP parties canoverride the mandate ever, ajoint agreement bythe mal course of business. form that they are kept in the nor- documents to beproduced in the of Civil Procedure ments in oneformat. Federal Rule only required to produce docu- Generally, aproducing party is conference with opposing counsel. for native production in their joint metadata included, is to negotiate documents unaltered andwith all listed conditions are met. vertent disclosure, but only if the of privilege in the event of inad- likely canoffer similar protection is identical to FRE 502(b) and bama Rule of Evidence 510(b)(2) tently disclosed documents. Ala- protection in the event of inadver- not act asawaiver of privilege, for certain inadvertent disclosures to the requirements of Federal Rule covery needto be well versed in lawyers engagedin electronic dis- dence 502(b), sions andFederal Rule of Evi- lawyers rely onclaw-back provi- ment of third-party vendors. Many ume of documents andinvolve- e-discovery dueto the large vol- larly dangerous in the world of ing privileged material is particu- Producing Privileged b. terms at the outset. producing party to agree to the mat, heshould attempt to get the needs documents in adifferent for- The risk of accidentally produc- Documents 34(b). 71 70 which allows Thus, if alawyer 34(b) requires 69 72 How- Thus, leged. 1,100 that turned out to beprivi- tronic documents, including over produced more than 55,000elec- procedures asfollows: sure.” sonable steps to prevent disclo- did not meet the standard for “rea- pass’s pre-production procedures error, the court found that Kilo- reasonable steps to correct the vertent andthat Kilopass took ceded that the disclosure wasinad- Even though both parties con- sure but the court disagreed. in the event of inadvertent disclo- ments for preservation of privilege it met the FRE for the 1,100-plus documents. waived attorney-client privilege Sidense Corp. Kilopass Technology Inc. v. disclosure is accidental. risk waiving privilege evenwhen Rule of Evidence of Evidence documents. privilege with respect to the 1,100 pass hadwaived attorney-client declaration bythe court that Kilo- Kilopass described its screening Take, for example, the caseof is a hosted document review vendor uses Relativity, which and sorted for privilege. The tronic documents searched with a vendor to have elec- firm, SNR Denton, contracted documents, Kilopass’s law order to screen for privileged ing large scale productions, in patent litigation cases involv- As is done in most major 77 74 Accordingly, Kilopass had The defendant sought a 75 502(b) andAlabama Kilopass argued that 73 502(b) require- Plaintiff Kilopass 510(b), or else 76 78 batches that contained the ton and that the production terms provided by SNR Den- run all of the privilege search the vendor mistakenly did not However, it would appear that ument review platform. dance, another electronic doc- up for production in Concor- documents that were queued terms in various batches of ing on various privilege search legals conducted spot check- Kilopass’s attorneys and para- fore the production was due, from its vendor just days be- ceiving the production batches work for Kilopass. After re- provided some early corporate Sonsini and others that had law firms such [sic] Wilson Kilopass did not include some list of law firms provided by the electronic search. Also, the families were not picked up in within privileged document ample, individual documents batches of documents. For ex- search across all production mistakenly did not run the privilege electronically but screened the documents for documents. Kilopass’s vendor ically for potentially privileged screen the documents electron- and lawyers to its vendor to provided this list of law firms the past. SNR Denton then lawyers and law firms used in pass provide it with a list of Denton requested that Kilo- ware tools. To this end, SNR platform with analytical soft- www.alabar.org 115

T H E Alabama Lawyer 116 T H E Alabama Lawyer or against over-reliance on claw-backs i. California BarOpinion on error onthe backend. reasonable efforts to correct the waived the privilege, despite his closure, hewill bedeemed to have end to prevent the inadvertent dis- taken reasonable steps onthe front ments. Unless the lawyer has tally produced, privileged docu- is not enoughto protect acciden- a claim of “inadvertent disclosure” documents. many of the obviously-privileged to production would havecaught spot-checking immediately prior alike; andthe fact that reasonable by the vendor, law firm andclient fact that the mistakes were made produced (nearly onein 50); the privileged documents among those particular the high proportion of as unreasonable, the court noted in In denouncing Kilopass’s efforts but it also led to the distribution of duction of privileged documents, the e-discovery vendor lead to pro- search and lackluster supervision of Not only did that lawyer’s careless arranged with opposing counsel. force the claw-back provision he uphill battle in attempting to en- California bar’s hypothetical has an March 2016 The California bar also cautions The lesson from Kilopass line for production. screening due to the tight time- produced escaped manual leged documents inadvertently large majority of the privi- Duty of Confidentiality FRE 502(b). 80 81 The lawyer in the 79 is that once the brave new frontier, it is Conclusion these issues. will nowlikely haveto litigate very least, the client andlawyer uments, it doesconclude, at the ity to reclaim the proprietary doc- waived privilege andlost the abil- lawyer in the hypothetical has not state for certain whether the chief competitor. ments into the hands of his client’s highly proprietary, irrelevant docu- able steps to prevent the disclosure: that the lawyer did not take reason- have ample ammunition to argue to protect, opposing counsel will privileged documents it is intended privileged documents. Even for the claw-backs, does not address non- clause he negotiated, as with most While electronic discovery was While the ethics opinion does was not inadvertent. privilege, andthe disclosure cise duecare to protect the to argue Client failed to exer- mit Opposing Counsel viably data–all of which could per- tion before reviewing the accused of evidence spolia- waited until after Client was broad search terms, and ticipated in drafting the over- during Vendor’s search, par- supervise Client prior to or search, did not instruct nor to allowing the network view Client’s network prior Attorney took noaction to re- 84 82 The claw-back 83 sanctions in their cases. obligations and suffering damaging evolution risk violating their ethical ing ESI. Lawyers who ignore this preserving, collecting and produc- petency now includes proficiency in nologies. A lawyer’s duty of com- have evolved with the new tech- that the expectations of lawyers around the country make it clear cent ethics opinion and cases from model rules, the California bar’s re- practice. The ABA update to the now the reality of everyday legal Endnotes 11. 10. 20. 19. 18. 17. 16. 15. 14. 13. 12. 21. .M 2. 9. 8. 7. 6. 5. 4. Op. No. 2015-193,at 3. 3. .State ofCal. Respon- Bar Standing Comm. onProf’l 1. [hereinafter Op. No. 2015-193]. &Conduct,sibility Formal Op. No. 2015-1933-4 Id. Id. Id. Id. Id., at 1. Id., at 3-4. Id. Id. sued a litigation hold to preserve documents). was on notice of litigation and thus should have is- routine document purging, given that defendant defendant’s claim that documents were lost due to 166, 173 (S.D. Ohio 2013) (issuing sanctions despite See EEOC v. JP Morgan Chase Bank, N.A. id.See (S.D.N.Y. 2004). Zublake v. UBSWarburg LLC, 229F.R.D. 422,431 Id. at 3n.6. Id. Id. Id. Id. Id. Id. ODEL at 2. R at 432. LSOF ULES P ROF ’ L C ONDUCT .1.1cmt. 8(2012). R. , 295 F.R.D. L 22. No. 4:10-CV-1890(CEJ), 2015 WL 94560 (E.D. Mo. 50. Id. at *10. 79. Id., at *2. Jan. 7, 2015). 51. Id. at *8. 80. Id., at *3. 23. See id. at *2. 52. Id. 81. Op. No. 2015-193, at 6. 24. See id. 53. FED. R. CIV. P.26(g). 82. Id. 25. See id. 54. HM Electronics, 2015 WL 4714908 at *13. 83. See id. 26. See id. at *7. 55. Id., at *26. 84. See id. at 7. 27. Scentsy, Inc. v. B.R. Chase, LLC, No. 1:11-cv-00249, 56. Id., at *31. 2012 WL 4523112, at *8 (D. Idaho Oct. 2, 2012). 57. Id., at *32. 28. See id. 58. See id.; Play Visions, Inc. v. Dollar Tree Stores, Inc., 29. Id. 2011 WL 2292326 (W.D. Wash. June 8, 2011) 30. Id. at *9. (holding firm and lead counsel jointly and 31. Id. severally liable for $136,168.41 in damages after counsel signed off on discovery documents 32. See Apple Inc. v. Samsung Elec. Co., 881 F. Supp. 2d without making a reasonable inquiry into their 1132, 1147 (N.D. Cal. 2012). Marcus R. Chatterton completeness). 33. See id. at 1150. 59. No. 10-60786-Civ, 2012 WL 3202273 (S.D. Fla. Aug. Marcus R. Chatterton is an 34. See id. at 1147. 3, 2012). associate in the Birmingham office of Balch & Bingham 35. See id. at 1151. 60. Id. at *4. LLP. He co-chairs the Copy- 36. The Sedona Conference (TSC) is a charitable, 61. Id. right Subcommittee of the 501(c)(3) non-partisan research and educational 62. Id. Intellectual Property Com- institute dedicated to the advancement of law and mittee in the American Bar Association’s policy in the areas of antitrust law, complex litiga- 63. Id. at *5. Section of Litigation. Volunteer activities tion and intellectual property rights. See 64. Id. include serving as a member of the Ala- https://thesedonaconference.org/faq. 65. Id. at *4. bama State Bar Digital Communications 37. SEDONA CONFERENCE, COMMENTARY ON LEGAL HOLDS: THE 66. Id. at *14. Committee and the Birmingham Bar Asso- TRIGGER & THE PROCESS 16 (2007). 67. Id. ciation Technology Committee. Chatterton 38. Painter v. Atwood, No. 2:12-cv-0215-JCM-RJJ, 2014 served in the United States Marine Corps 68. Id. WL 1089694 (D. Nev. Mar. 18, 2014). from 1995-2004. He is a graduate of 69. FED. R. CIV. P.34(b). 39. See id. Auburn University and the University of 70. See Melian Labs Inc. v. Trilogy LLC, No. 13-cv-04791- Alabama School of Law, magna cum 40. Id. SBA(KAW), 2014 WL 4386439 at *2 (N.D. Cal. Sept. laude, where he was on the managing 41. See, e.g., id.; Calderon v. Corporacion Puertorriquena 4, 2014) (explaining that a joint stipulation by the board of the Alabama Law Review, and a de Salud, 992 F. Supp. 2d 48 (D.P.R. 2014) (holding parties overrules the requirements of FED. R. EVID. member of the Order of the Barristers and that deletion of select text messages evidenced an 34(b)). the National Trial Advocacy Team. awareness that litigation was pending and thus 71. FED. R. EVID. 502(b). This Rule provides that inadver- was in violation of the duty to preserve). tent disclosure of privileged documents does not 42. Op. No. 2015-193, at 4-5. waive privilege if “(1) the disclosure is inadvertent; 43. Id. at 5. (2) the holder of the privilege or protection took Elizabeth J. Flachsbart 44. See generally HBR CONSULTING & ExTERRO, SEEING THE BIG reasonable steps to prevent disclosure; and (3) the PICTURE: WHY LEGAL DIRECTORS ARE BRINGING E-DISCOVERY holder promptly took reasonable steps to rectify Elizabeth J. Flachsbart is IN HOUSE (2015), available at http://www.exterro the error . . . .” FED. R. EVID. 502(b). an associate in the Birming- .com/resources/why-legal-directors-are-bringing- 72. ALA. R. EVID. 510(B). ham office of Balch & Bing- e-discovery-in-house. 73. No. C10-02066 SI, 2012 WL 1534065 (N.D. Cal. May ham LLP. She received her 45. No. 12cv2884-BAS-MDD, 2015 WL 4714908 (S.D. 1, 2012). B.A. from the University of Alabama in economics and Cal. Aug. 7, 2015). 74. Id., at *2. her J.D. from Washington & Lee School 46. Id. at *9. 75. Id. of Law. Prior to law school, she taught 47. Id. 76. Id. high school math in Lowndes County as 48. Id. ED VID part of the charter corps of Teach For 77. F . R. E . 502(b)(ii). Alabama Lawyer America in Alabama. 49. Id. 78. Kilopass, 2012 WL 1534065, at *3. T H E

www.alabar.org 117 118 T H E Alabama Lawyer March 2016 I their lawyers. While this standard in Alabama wasa relationships with parties to the arbitration and/or trators havefailed to disclose potential ties or tration Act andto obtain vacatur in cases where arbi- “evident partiality” standard under the Federal Arbi- standard for what alitigant must establish to meet the the court termed asthe “majority” view in setting the Eleventh Circuit Court of Appeals andjoined what Municipal Workers 2015, the Alabama Supreme Court broke with the arbitration award just got alittle easier. In April n Alabama, seeking andobtaining vacatur of an Shifting the Burden: Alabama BaseduponaFailure to Disclose and Establishing Evident Partiality in By Rebecca A.Beers pensation Fund v. Morgan Keegan, et al., bit unclear prior to April, in Municipal Workers Com- with the litigants andtheir lawyers. and fair disclosure of all conflicts andrelationships The burden hasshifted to the arbitrator to make afull conflict or relationship wasknowing and intentional. ally biased or that the arbitrator’s failure to disclose a burden of having to prove that anarbitrator was actu- conflict. A litigant in Alabama nolonger bears the of whether or not the arbitrator hadknowledge of the rise to areasonable impression of partiality, regardless tration proceedings if anundisclosed conflict gives award rendered will besubject to vacatur in post-arbi- relationships with the parties andtheir counsel or the thorough conflict checkanddisclose all conflicts and forum’s rules require it, arbitrators must undertake a bama Supreme Court made it clear that, where the 1 www.alabar.org the Ala- 119

T H E Alabama Lawyer 120 T H E Alabama Lawyer Disclose The Arbitrator’s Duty to Evident Partiality and bitrators andlitigants in arbitrations in Alabama. and, going forward, what that standard means for ar- abama Supreme Court set out in Municipal Workers conflict non-disclosure cases,the standard that the Al- disclosure duties, the competing standards related to the “evident partiality” standard andanarbitrator’s tal Casualty Co. opinion in duty to disclose is the United States Supreme Court’s counsel (a “nondisclosure” case). conflicts andrelationships with the parties andtheir case) andthrough the arbitrator’s failure to disclose arbitrator’s conduct andstatements (an “actual bias” tor’s partiality canarise in two contexts: through the have found that areasonable impression of anarbitration in the arbitrators ..” vacated “where there wasevident partiality or corrup- those four grounds requires anarbitration award to be for vacatur of anarbitration award, andthe secondof and speculative.” “mere appearance of bias that is remote, uncertain, nite, andcapable of demonstration” rather than a give “rise to animpression of bias that is direct, defi- through credible, admissible evidence, facts which the level of evident partiality, alitigant must establish, pression of partiality” standard, stating that to rise to Alabama Supreme Court adopted the “reasonable im- In 2003,in Waverlee Homes,Inc. v. McMichael partiality” hasbeenthe subject of frequent litigation. March 2016 The Federal Arbitration Act This article will briefly explain the background of The seminal case discussing an arbitrator’s inherent Commonwealth Coatings Corp. v. Continen- , in which Justice Hugo Black delivered 4 Courts–including Alabama courts– 3 What constitutes “evident 2 provides four grounds , the may give rise to an impression of partiality to litigants burden of disclosing relationships and conflicts that state courts have recognized that arbitrators bear the be subject to vacatur. Therefore, while most federal and tor was evidently partial and any award rendered would it, a reasonable person would conclude that that arbitra- with a party or that party’s counsel and fails to disclose trator knows of a conflict or a material relationship The Duty to Investigate The Duty to Disclose and out of the Federal Arbitration Act, tual or perceived conflicts to litigants that likely arises independent duty on the part of arbitrators to disclose ac- While granted in every judicial proceeding.” the “elementary requirements of impartiality taken for arbitration forum and affording the arbitrating litigants serving the streamlined and cost-effective nature of the the majority opinion discussing the balance between pre- an impression of possible bias.” tors disclose to the parties any dealings that might create will be hampered by the simple requirement that arbitra- way in which the effectiveness of the arbitration process disclosed, and the Court observed, “[w]e can perceive no relationship between a litigant and an arbitrator was not firmance of the arbitration award in which the wealth Coatings gants and their counsel. actual or perceived conflicts or relationships with liti- rules which require arbitrators to discover and disclose that private arbitration forums have set out their own and other federal and state courts have also recognized quires full and fair disclosure from the arbitrators. be able to select their arbitrators intelligently, which re-founded in the principle that arbitration litigants should It is a well-accepted proposition that, where an arbi- Commonwealth Coatings , the Court reversed the trial court’s af- 9 6 appears to recognize an This requirement is 8 the Supreme Court 5 In Common- 7 in contrast, the

and their counsel, distinct differ- Eleventh Circuit constructive knowledge of the con- ences of opinion arise regarding the flict due to the forum’s duty to in- relationships and conflicts that must has required vestigate.11 be disclosed. Is an arbitrator required In contrast, the Eleventh Circuit only to disclose known conflicts and actual knowl- has required actual knowledge of relationships? Must the arbitrator these conflicts and relationships in undertake the equivalent of a edge of these order to warrant vacatur for evident lawyer’s “conflict check” to discern conflicts and partiality. That is, even if there ex- relationships that may give rise to an ists a direct conflict that clearly impression of bias of which the arbi- relationships gives rise to a direct and definite trator herself is unaware? impression of bias, evident partial- The majority of courts to address in order to ity is not established and vacatur is situations in which arbitrators have not appropriate unless the arbitrator failed to disclose these relationships warrant vacatur actually knew of this conflict and and potential conflicts have gener- failed to disclose it to the litigants ally determined that the arbitrator’s for evident and their counsel.12 The Eleventh failure to disclose these facts alone– Circuit has explicitly rejected the where the facts are non-trivial–may partiality. Ninth Circuit’s “constructive be sufficient, in and of itself, to es- knowledge” theory in Schmitz and tablish evident partiality warranting held that the law in the Eleventh vacatur under the Federal Arbitration Act. These cases Circuit “is that an arbitration award may be vacated do not require a litigant to establish that an arbitrator due to the ‘evident partiality’ of an arbitrator only knew of these non-trivial facts and failed to disclose when either (1) an actual conflict exists, or (2) the ar- them. Rather, the act of failing to disclose these con- bitrator knows of, but fails to disclose, information flicts and relationships alone may be sufficient–that is, which would lead a reasonable person to believe that the arbitrator’s failure to undertake a reasonable inves- a potential conflict exists.13 A later panel of the Ninth tigation to determine the existence of and then disclose Circuit observed that it was “aware of only one court conflicts and relationships may be sufficient to estab- of appeals that has adopted a per se rule that a finding lish evident partiality on its own.10 These undiscovered of evident partiality is precluded by an arbitrator’s and undisclosed conflicts and relationships, however, lack of ‘actual knowledge of the information upon cannot be trivial and must, on their own, give rise to a which [an] alleged conflict was founded,’” and that is direct and definite impression of bias. The seminal the rule adopted in the Eleventh Circuit.14 opinion in this line of cases is the Ninth Circuit’s opin- Therefore, while the Eleventh Circuit explicitly re- ion in Schmitz v. Zilveti, in which that court found that quires arbitrators only to disclose relationships and the arbitrator’s failure to investigate and disclose a par- conflicts of which they have actual knowledge in ticular conflict (where arbitral forum required such an order to avoid a finding of evident partiality, other cir- investigation) that gave a reasonable impression of bias cuits acknowledge that evident partiality may be es- constituted evident partiality because the arbitrator had tablished where there exist facts or a conflict that may Alabama Lawyer T H E

www.alabar.org 121 The trial court

give rise to a reasonable impression had found that Schmitz decision.18 Despite citing of bias and the arbitrator failed to both Eleventh Circuit and Ninth investigate and disclose this infor- the arbitrators Circuit cases that take diametrically mation, even when the arbitrator opposite views of what constitutes may not have had actual knowledge in question evident partiality in a nondisclosure of this information. had failed to context, neither Waverlee nor Lex- ington Insurance directly addressed make disclo- what standard Alabama would Municipal adopt in nondisclosure cases. The Workers and sures which supreme court’s opinion in Munici- pal Workers filled that void. Alabama’s Break were required While it would not have been unreasonable to assume that Alabama With the by the arbitral would stand with the federal circuit Eleventh Circuit in which it sits, the Alabama forum but that Supreme Court in Municipal Work- Prior to the Alabama Supreme ers, in somewhat of a surprise, Court’s opinion in Municipal Work- this nondisclo- adopted the reasoning of the Ninth ers, the standard of review for Circuit (and other circuits reaching nondisclosure cases in Alabama similar conclusions). In Municipal 15 sure did not courts was murky and undefined. Workers, the appellant, Municipal Only two major decisions discussed constitute evi- Workers Compensation Fund, ar- the “nondisclosure” brand of “evi- gued that the trial court’s refusal to dent partiality” cases. The first–Wa- dent partiality vacate the arbitration award at issue verlee–was unclear in whether it should be reversed because, inter was a nondisclosure or actual bias requiring alia, two arbitrators on the three ar- case, but it adopted the “reasonable bitrator panel had failed to disclose impression of partiality” standard vacatur of the significant information, which for for cases in which vacatur was one arbitrator, included the fact that being sought based upon “evident arbitration his employer (for which he was a partiality,” relying both upon vice president and partner) had Eleventh Circuit precedent and also award. business ties to one of the appellees citing the Ninth Circuit’s case in and its counsel.19 The trial court had 16 Schmitz. In the second case–Lex- found that the arbitrators in ques- ington Insurance–the court was interpreting specific tion had failed to make disclosures which were re- provisions of the parties’ arbitration agreement relat- quired by the arbitral forum but that this 17 ing to the arbitrator selection process. However, in nondisclosure did not constitute evident partiality re- Alabamadoing Lawyer so in its discussion of nondisclosure of con- quiring vacatur of the arbitration award.20 On appeal,

T H E flicts, the court again relied upon the Ninth Circuit’s

122 March 2016 tor at issue had the duty under the rules of the edge requirement and found that becausethe arbitra- Court spurned the Eleventh Circuit’s actual knowl- view in the federal courts,” the Alabama Supreme In adopting what it characterized as“the majority tiality under the FAA, andconcluded the following: of arbitrator nondisclosure asabrand of evident par- and its two prior decisions that touched onthe issue cuit, aswell asother caselaw from across the country sions of both the Ninth Circuit andthe Eleventh Cir- intentionally failed to disclose them. tual knowledge of these business ties andthen sel, there wasnoevidence that the arbitrator hadac- undisclosed business ties to the appellee andits coun- serting that, for the arbitrator whosefirm hadthe the appellees relied onEleventh Circuit precedent, as- dent partiality under the FAA, justifying vacatur. sonable impression of partiality which constitutes evi- to the rules of the arbitral forum, gaverise to area- duty to investigate anddisclose anyconflicts pursuant pounded bythe fact that the arbitrator wasunder a to disclose these significant business ties, com- Municipal Workers, argued that the arbitrator’s failure The Alabama Supreme Court reviewed the deci- “reasonable impression of partiality.” failure to disclose the conflict may result in a knowledge of the conflict of interest, andthe arbitrator will bedeemed to haveconstructive flicts andfailed to doso.In suchasituation the to investigate in order to discover possible con- of interest whenthe arbitrator wasunder aduty knowledge of the facts giving rise to the conflict satisfied eventhough anarbitrator lacks actual dent partiality” under 9U.S.C. §10(a)(2) may be sion-of-partiality” standard constituting an“evi- view andconclude that the “reasonable-impres- We believe the holding in Schmitz 21 is the better The appellant, 23 22 partiality under the FAA. prior standard in Waverlee created areasonable impression of partiality under its ties with oneof the parties andits counsel, the facts would haverevealed what it termed to besignificant parties andtheir counsel andbecausesuchasearch forum to conduct aninvestigation into ties with the in Municipal Workers: lowing about the Alabama Supreme Court’s opinion and vacating anarbitration award, observed the fol- Municipal Workers Practical Implications of able impression of partiality. bitrator whohasaconflict that gives rise to areason- to find evident partiality in anaward issued byanar- trator’s actual knowledge of aconflict is not required Thus, under Municipal Workers, in Alabama, anarbi- itself, gaveareasonable impression of partiality. and that fact, combined with the nature of the conflict arbitrator hadconstructive knowledge of the conflict, A federal district court, in relying on Alabama law on his own qualifications. The parties do. favor of disclosure. The arbitrator does not pass their potential impact in the selection procedure in bitrators must ascertain the relevant facts about party to doubt their impartiality. In other words ar- grounds and revealing all facts that might cause a burden of carefully examining their own back- powerful position of arbitrator the relatively light nondisclosure, but to place upon applicants for the den of demonstrating actual bias or a knowing by placing on a complaining party the heavy bur- Federal Arbitration Act can best be satisfied, not joined the courts who find that the purpose of the The Supreme Court of Alabama has now firmly 24 that constituted evident The court found that the 26 www.alabar.org 27 25 123

T H E Alabama Lawyer This decision

This observation makes clear enables litigants in could prove to be dangerous in how the burden has shifted in post-arbitration proceedings. Alabama with regard to arbitra- most arbitrations Alerting the arbitrator and the tor disclosure after Municipal other parties to these relation- Workers. Now, the burden is on to choose their ships and potential conflicts the arbitrator to know the rules prior to the issuance of an arbi- of the forum in which he or she arbitrators intelli- tration award will serve to save is arbitrating and to make all re- gently and relieves the parties both time and money quired disclosures, including in avoiding taking an arbitration undertaking a thorough search them of the burden all the way to an award, only to or conflict check that will reveal have it overturned in post-arbi- any conflicts or business rela- of proving that an tration proceedings because the tionships that would implicate a arbitrator failed to discover and reasonable impression of par- arbitrator knew of a disclose a relationship that a tiality. The burden is no longer party could have detected on the on litigants to demonstrate that significant conflict front end. So, while the burden the arbitrator had knowledge of may now lie with the arbitrator any significant conflicts or rela- and yet failed to to conduct his or her own inves- tionships–rather, litigants must tigation to disclose all potential only show that such conflicts or disclose it in conflicts and relationships, it relationships exist and that the may be a more prudent course arbitrator was under a duty to seeking vacatur for litigants to shoulder that discover and disclose them. same burden voluntarily to For litigants and their counsel, of an arbitration avoid cost and expense down this somewhat opens up “evi- the road. dent partiality” challenges to award based on Finally, it is still unclear in Al- unfavorable arbitration awards. abama whether or not there ex- Without the actual knowledge evident partiality. ists a burden on arbitrators to requirement, a litigant can make conduct such an investigation a strong challenge to an arbitra- that is independent of any re- tion award if the litigant discovers the existence of an quirements that may exist under the rules of the arbi- undisclosed relationship that rises to the level of giv- tral forum. As previously noted, the United States ing a reasonable impression of partiality. To avoid Supreme Court in Commonwealth Coatings hinted having a favorable arbitration award be susceptible to that the FAA may imply such a duty,28 but subsequent such a challenge, litigants can conduct their own con- courts have explicitly avoided making such a finding, flict checks and inquiries on the front end of the arbi- even when interpreting the FAA.29 While arbitration tration to ensure that the arbitrator has not overlooked forums such as the American Arbitration Association Alabamaor Lawyerfailed to discover a conflict or relationship that and Financial Institution Regulatory Authority T H E

124 March 2016 (FINRA) Dispute Resolution have their own rules and now, in most cases, arbitrators bear the burden of con- regulations that require arbitrators to conduct their ducting a thorough conflict check and investigation own conflict checks and to disclose any relationships into potential conflicts and relationships and of dis- or potential conflicts,30 many arbitrations in Alabama closing their findings to litigants in arbitration. This are private arbitrations that are more informal and decision enables litigants in most arbitrations to without a set of rules and regulations that would im- choose their arbitrators intelligently and relieves them pose duties on potential arbitrators to discover and of the burden of proving that an arbitrator knew of a disclose these conflicts. The Alabama Supreme significant conflict and yet failed to disclose it in Court’s opinion in Municipal Workers explicitly stated seeking vacatur of an arbitration award based on evi- that actual knowledge of a conflict was not needed dent partiality. L “when the arbitrator was under a duty to investigate in order to discover possible conflicts and failed to do Endnotes so.”31 The court did not find that Alabama arbitrators 1. Municipal Workers Compensation Fund, Inc. v. Morgan Keegan & Co., No. 1120532, are under an independent duty to discover conflicts ___ So. 3d ___, 2015 WL 1524911 (Ala. Apr. 3, 2015). An application for rehear- ing of this cause was overruled on September 30, 2015. but instead based its holding on the fact that the arbi- 2. 9 U.S.C. § 1, et seq. trator in question was duty-bound to conduct such an 3. 9 U.S.C. § 10(a)(2). investigation and disclose his findings pursuant to the 4. Waverlee Homes, Inc. v. McMichael, 855 So. 2d 493, 508 (Ala. 2003). FINRA Dispute Resolution rules which governed the 5. Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 145 (1968). arbitration at issue.32 Therefore, there may not be an 6. Id. at 149. independent duty to investigate and disclose conflicts, 7. Id. at 151 (White. J., concurring) (“And it is far better that the relationship be dis- and so actual knowledge of a conflict may be required closed at the outset, when the parties are free to reject the arbitrator or accept in a nondisclosure case where there are not contrac- him with knowledge of the relationship and continuing faith in his objectivity, tual obligations to investigate and disclose. If litigants than to have the relationship come to light after the arbitration, when a suspi- would like to arbitrate their claims but would like to cious or disgruntled party can seize on it as a pretext for invalidating the award.”). choose their arbitrators intelligently, then their coun- 8. Id. at 150 (“We cannot believe that it was the purpose of Congress to authorize litigants to submit their cases and controversies to arbitration boards that might sel, when drafting contracts that provide for private reasonably be thought biased against one litigant and favorable to another.”). arbitration under Alabama law, should either provide 9. See id. at 149 (quoting from the American Arbitration Association’s rule requiring a written duty to investigate and disclose conflicts or arbitrators “to disclose any circumstances likely to create a presumption of bias” or incorporate the rules of an arbitral forum that does re- which an arbitrator “believes might disqualify him as an impartial Arbitrator”). quire conflict investigation and disclosure. See also, e.g., Schmitz v. Zilveti, 20 F.3d 1043, 1049 (9th Cir. 1994) (“In this case, Conrad had a duty to investigate the conflict at issue. Section 23(a) & (b) of the NASD Code requires arbitrators to ‘make a reasonable effort to inform themselves of any’ ‘existing or past financial, business, [or] professional ... relationships [that Conclusion they or their employer, partners, or business associates may have] that are likely The Alabama Supreme Court’s decision to eschew to affect impartiality or might reasonably create an appearance of partiality or Eleventh Circuit precedent and adopt the Ninth Cir- bias.’”). cuit’s standard in arbitrator nondisclosure cases was 10. See Applied Indus. Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S., 492 F.3d 132, 138 (2d Cir. 2007) (declining to create a free-standing duty to investigate on surprising, yet in line with a majority of courts. The the part of arbitrators but concluding that “the absence of actual knowledge” of a practical implication of Municipal Workers is that conflict is not dispositive of evident partiality, requiring arbitrators to investigate Alabama Lawyer potential conflicts or disclose their failure to investigate where the arbitrator T H E

www.alabar.org 125 126 T H E Alabama Lawyer 25. 24. 23. 22. 21. 20. 19. 18. 17. 16. rely uponandinterpret Alabama courts theFAA intheirreview ofarbitration 15. 14. 13. 12. 11. 6 What is required, however,26. is that the undisclosed conflict rise to the level of giving March 2016 Id. Id. Id. Id. Id. Id. WorkersMunicipal , 2015 WL 1524911,at *5,*21. Id. (Ala. 2012). Lexington Ins. Co. Inc. &Chartis, v. S.Energy Homes, Inc., 101So. 3d1190,1205 Waverlee, 855So. 2dat 508. Birmingham, Inc. v. Edwards, 973So. 2d1050,1052(Ala. 2007)). involving evidences atransaction tract interstate commerce) (citing Title Maxof governed by theFAA where there isacontractfor calling arbitration andthecon- So. 3d375,379(Ala. 2009) (findingthat arbitration proceedings inAlabama are and there isacontract requiring arbitration. Hereford See v. D.R. Inc. Horton, , 13 awards underlyingthearbitration where thefacts involve interstate commerce 2007) (quoting MoneyPurchase Gianelli Plan&Trust, 146F.3d at 1313). Prods.,New Regency Inc. v. Herald Nippon Films, Inc., 501F.3d 1101,1109(9thCir. MoneyPurchaseGianelli Plan&Trust, 146F.3d at 1312(citations omitted). Inc., 146F.3d 1309,1312(11thCir. 1998))(citation omitted). conflict.) (quoting MoneyPurchase Gianelli Plan&Trust v. ADMInvestor Servs., reasonable personwould recognize and(3)thearbitrator mustfailto disclosethe comprising apotentialfacts conflict, (2)thepotential mustbeonethat conflict a distilledinto threefurther key elements: (1)thearbitrator mustbeaware ofthe sonable personto believe that apotential exists.’ conflict . This standard be can ‘the arbitrator knows of, butfailsto disclose, information whichwould leadarea- that onescenario underwhich an arbitration award could bevacated would beif (11th Cir. 2002)(“As we noted earlier, MoneyPurchase Gianelli Plan&Trust Univ.See Commons-Urbana, Ltd. v. Universal Constructors Inc., 304F.3d 1331,1341 , 20F.3dSchmitz at 1049. underCommonwealth establishedevident partiality Coatingsflict ). tionship, andtherefore, theconstructive knowledge andtheexistence ofthecon- knowledge oftheconflict,rela- whether ornothehadactual hefailedto andbecause discloseaconflict, thearbitratorflicts hadconstructive rules required thearbitrator to make to areasonable inform himselfofcon- effort for vacatur); gation would have revealed that demonstrate non-trivialfacts grounds statutory shown that anarbitrator aninvestigation failedto undertake where that investi- upon arbitrators may be beestablishedifitcan butfindingthat evident partiality 173 F.3d 493,499n.4(4thCir. 1999)(declining to to investigate imposeaduty knows that apotential may conflict exist); ANRCoal Co. v. Cognetrix ofN.C.,Inc., at *28. at *27(quoting, 20F.3d Schmitz at 1048-49). at *22. at *5. , 20F.3dSchmitz at 1049(findingthat thearbitration because forum’s holds Alabama, including pre- andpost-arbitration disputes. Rebecca A. Beers 32. 31. Workers inMunicipal Indeed, thecourt 30. 29. 28. 27. Id. Id. Workers, 2015 WL 1524911,at *27-28. disclosures andthat thearbitrator hadobviously failedto doso. Municipal See upon thearbitrator checkandmake aconflict inquestionto subsequent conduct See noteSee 9 supra. v. Mendel,No. 15-12801(11thCir. 23,2015). June MorganAla. See May 26,2015).An appealispendinginthisaction. Keegan &Co. Mendel v. Morgan Keegan &Co., No. 13-AR-1630-S, 2015 WL 3385058,at *7(N.D. the nondisclosure, there was no evident partiality. between the arbitrator and counsel for the party. impression of partiality, as there was no direct relationship, financial or otherwise, tionship, despite being undisclosed, did not rise to the level of giving a reasonable bitrator had not communicated with the lawyer in question, found that this rela- the arbitrator had not retained the firm or been retained by them and that the ar- The Alabama Supreme Court, in noting that the firm in question was large, that parties on two separate occasions and had not disclosed that fact to the parties. been co-counsel with other lawyers from the firm representing one of the other evident partiality grounds, basing the claim on the fact that the arbitrator had Alabama Supreme Court addressed a party’s challenge to an arbitration award on No. 1131129, ___ So. 3d ___, 2015 WL 3537497, at *4-6 (Ala. June 5, 2015), the a reasonable impression of partiality. In at *27. note 11supra. of arbitration law in the federal andstate courts of has wide-ranging experience litigating all aspects curities, casualty and employment law. Shealso practices commercial litigation, with afocus onse- Kirk & Caldwell PC in Birmingham, where she Rebecca A. Beers is anassociate with Rumberger, found that FINRA’s rules imposedaduty J. Don Gordon Construction, Inc. v. Brown See id. at *6. Therefore, despite , s T n E m E r i u q E r arTiCLE suBmissiOn to the editor for possibleeditorforthepublication to in AlabamaState Bar members are encouraged to submit articles to the editor via email ( email via editor the to Allarticles tobe considered for publication must besubmitted tions are not accepted. bers of the ASB. Articles previously appearing in other publica- The any article submitted for publication. quotations. The editorial board reserves the right to edit or rejectAuthorsareresponsible forthecorrectness allofcitations and torial board or the Alabama State Bar unless expressly so authors’stated. only and are not to be attributed to the Viewsexpressedarticlesthe in chosen publication for theare with the article. authorsubmittedthemustbegraphleastdpi)of(at300 photo- color recent a and sketch biographical brief A double-spaced and utilizing endnotes and not footnotes. format.typicalA article letter-size18to 13 is pageslength,in Lawyer does not accept unsolicited articles from non-mem- [email protected] The Alabama LawyerAlabamaThe Lawyer ) in Word in ) www.alabar.org , its edi- . 127

T H E Alabama Lawyer 128 T H E Alabama Lawyer ingham’s Sixteenth Street Baptist Church. convictions for the 1963 bombing of Birm- Frank Cherry on appeal from his murder Starrett successfully prosecuted Bobby General. Among other cases for the office, appointment to the Office of the Attorney and criminal practice in Montgomery before Supreme Court, and was engaged in civil Justice Mark Kennedy on the Alabama staff attorney to Justice Kenneth Ingram and Alabama School of Law. Starrett served as courts. He is a graduate of the University of habeas corpus in all state and federal sents the state in criminal appeals and general for the State of Alabama and repre- Marc A. Starrett sumer and commercial litigation. sents consumers and businesses in con- actions and complex litigation. He repre- school, where he taught courses in class served as adjunct professor at the law trict of Alabama. From 2000-09, Green States District Court for the Northern Dis- clerk to the Hon. Robert B. Propst, United Alabama School of Law and a former law cum laude Green LLP in Tuscaloosa. He is a Wilson F. Green March 2016 graduate of the University of Marc A. Starrett Wilson F. Green is an assistant attorney is a partner in Fleenor & summa 12 motion. This isapanelopinion joinedby four justices; oneconcurred intheresult. requirements, claimsinaRule erred by dismissingthemoney-damage court thetrial most exclusively determinations given summary-judgment theirfactually-intensive Among otherholdings, determinations underCranman because immunity Johnson v. Reddoch, no. 1121481(ala. dec. 18,2015) state agent immunity statutes to beread inparimateria andanalogous ambiguity splintering onquestionsofstatutory court deeply-divided underAla.Codeconducted ther (1)thelastdecennial census or(2)itsown municipal census, whichcould be canprovewise); amunicipality onlyby relying itspopulation under thissection onei- exceeding 6,000citizens three extends milesfrom (itis1.5milesother- its boundaries Under Ala.Code ofPikeCity Road v., no. ofMontgomery City 1140487(ala. dec. 11,2015) statutory Construction; municipalLaw ture.” This isapaneldecisionjoinedby three justices; two concurred intheresult. inthefu- duty statute, thedirectory butofficialsstillmay becompelled to perform fect theessential power granted to apublicofficialorbodyinparticular vs. statutes isthat mandatory failure“the to provision follow doesnotaf- adirectory the statute ofthetax. doesnotaffectthelegality between directory The distinction not mandatory. Thus, thecommission’s impositionofataxwithoutcomplying with quired for theexpenses ofthecounty for thecurrent year[,]” and ismerely directory regular meetinginFebruary ineachyear, theamount ofgeneral taxes shalllevy re- The requirement inAla.Code Howard v., no. CullmanCounty 1140748(ala. dec. 4,2015) vs.statutory Construction (mandatory directory) intheresult.concurring encumbered.closing actually This isapaneldecisionjoinedby four justices, withone cumber adifferent thedocuments executed parcel knew from at what bothparties matter oflaw, testified that theintent where bothparties before closingwas to en- stand thecontents ofthedocument whenexecuted, reformation was available asa (Ala. under- correctly 1990),underwhichmutualmistakeisnotavailable iftheparties v. theholdingofBeasley Notwithstanding MellonFin. Corp. Servs. , 569So. 2d389,394 v. N.A. U.S. Bank, Shepherd,no. 1140376(ala. nov. 20,2015) reformation ofinstruments Supreme Court From theAlabama rECEnT CiViLdECisiOns R E N R O C E T A L L E P P A E H T § 11-40-10(a),amunicipality’s for police municipalities jurisdiction §§ 11-47-90through -95. This opinionwitha isaplurality § 40-7-42,that “[t]he county commission, at thefirst with the subject act. with thesubject are al- ful act occurred,ful act notwhere thedamages resulted. against acorporation isproper iswhere thealleged wrong- Under Ala.Code Jan. 22,2016) JimBurke Automotive,Ex parte Inc., no. 1141266(ala. Venue instance was unreasonable. interpretation ofitsown ordinance, theinterpretation in this generallymaterial, defer andthoughcourts to anagency’s not definedinthezoning ordinances orotheradministrative was “developed” or “undeveloped.” Though theseterms were to whetheralotonwhichresidence was to beconstructed the circuit court’s upholdingofazoning board’s decisionas reversed ofcivilappeals’The court thecourt affirmance of Chesnut, no.Ex parte 1140731(ala. Jan. 22,2016) Zoning isnotfraud uponthe court. fraud uponaparty analleged itself; 43-8-5isafraud uponthecourt section to application trigger oflimitations tolling under necessary Under Christianv. Murray , 915So. 2d23(Ala. 2005),thefraud of Ala.Code that willoffered for probate limitations outsidethefive-year probateSubstantial evidence supported court’s conclusion v.Hardy , no. Hardin 1130612(ala. Jan. 22,2016) Wills andEstates issuesto thearbitrator. arbitrability reserved the parties indiciumthat cation ofAAArulesisaclearandunmistakable has power andthusinvo- to determine herown jurisdiction, voked AAACommercial Rules, underwhichthearbitrator to thearbitrator[.]” thiscase, In thearbitration agreement in- indicates that thosearguments shouldinstead besubmitted arbitration provisionthe subject andunmistakably clearly should resolve bothwaiver issuesunless andnon-signatory considering“[A] amotionto compel arbitration court trial (ala. dec. 18,2015) Federal Insurance Company v. Reedstrom, no. 1141153 arbitration; arbitrability questions § 43-8-161was notadmissibleinto probate. § 6-3-7,theplace of “injury” where venue 50(a)(1). presentation oftheplaintiff’s caseviolated theterms ofRule heard” ontheissue, andthusgranting the theJMLduring hasbeen cannot begranted unlessanduntil aparty “fully thepresentationstand during oftheplaintiff’s case. AJML which was interposed whiletheplaintiff was stillonthe erredThe by circuit granting court UMcarrier’s JMLmotion, Civ. app. dec. 4,2015) Henley v. State Farm Mut. Auto. Ins. Co., no. 2140560(ala. JmL Procedure Court of Civil Appeals From theAlabama to tenant. ofafrontfect (intheflooring porch) whichcauseddamage feat aRule12(b)(6) motion,landlord ofade- hadknowledge Tenant’s complaint sufficiently allegedthat inorder to de- app. Jan. 8,2016) Turner v., no. JohnsonProperties 2140875(ala. Dee Civ. Landlord-Tenant for expenses neededto complete project. theconstruction amount that shouldhave from beendeducted that balance ofamaterialman’sproperly thesubject lien,orofthe have determined theunpaidbalance oftheoriginal contract The record could lackedevidence from court whichthetrial app. dec. 11,2015) Company, Supply Inline Electric Inc. v. Eskildsen materialmen’s Liens notice oftheredemption. constitutedbecause thefilingofcertificate constructive ofredemption, oftheissuance ofacertificate tionee (Wall) was notrequired (Wells) Redemptioner to notifyredemp- 2140837 (ala. Civ. app. dec. 4,2015) Wall to Wall Inc. v. Properties, Wells Fargo, no. N.A. Bank, Tax redemption sale (ala. Civ. www.alabar.org 129

T H E Alabama Lawyer 130 T H E Alabama Lawyer March 2016 tenus posed for ofharassmentto purposes theore was subject court’strial conclusion that therequest inter- was actually to prove a “proper purpose” corporate for seeking records; Under bothAlabama andDelaware law, shareholder failed Civ. app. Jan. 8,2016) Pearson v. TheWestervelt Company, no. 2140546(ala. shareholder rights fraudulent concealment ofthecausesaction. tolling, however, becausethecomplaint didnotallege was timely. claimswere Remaining to equitable notsubject nolprosseaccrue until actual claimfor Because misconduct. maliciousprosecution didnot itselfwas procureding that theindictment through fraud or overcome theprobable cause presumption by demonstrat- trate hadmisappropriated nofunds, which,ifproven, would sufficiently allegedthat defendantsthat former magis- knew establish apresumption ofprobable cause, thecomplaint Although grand jury’s would indictment generally suffice to 2016) McConico v. Patterson, no. 2140939(ala. Civ. app. Jan. 8, Prosecution;malicious Equitable Tolling specific dog which attacked third party was athreat,specific dogwhich attacked and third party menacing, there was noevidence that that landlord knew ant’s packofpitbulls were escaping from premises andwere Although there was evidence that that ten- landlord knew Berg v. Nguyen, no. 2140774(ala. Civ. app. Jan. 8,2016) Landlord-Tenant; to duty Third Parties reasonable rental value. to form anopinionasto conditionsexpertise market anda similar commercial inthearea; shehadsufficient properties mony from real estate agent whohadbothsoldand leased abuseditsdiscretioncircuit inrefusing court to admittesti- sufficiently familiarwithrental conditions. market However, valuation evidence from abankofficer, becausehewas not withinitsdiscretion acted inrefusingCircuit to court admit 8, 2016) Renasant v. Bank , no. Clark 2140653(ala. Civ. app. Jan. Evidence; Experts (Continued from page129) standard. of the indictment, that claim of theindictment, R E N R O C E T A L L E P P A E H T for negligence was proper. judgment to landlordthus summary onthird-party’s claim the reliability of the ratings of the noise protection itself. ficacy of the hearing protection provided by employer and (3) noise levels at the yard where worker was employed, (2) the ef- ing that substantial evidence called into question (1) the actual road on FELA claim arising from worker’s hearing loss, reason- The CCA reversed the trial court’s summary judgment to rail- 2140873 (ala. Civ. app. Jan. 15,2016) v.Putnam Railway Southern Company, Norfolk Inc., no. fELa as to why relief period. was sought outside the42-day mandamus, and that employer didnotoffer anexplanation the presumptive relief for timeperiod by seeking 42-day tion was untimely because theRule59motiondidnottoll non-final, butthat treated asamandamus petition,thepeti- that theappealwas improper becausethejudgment was was eventually denied. Employer appealed. The CCA held of benefits. Employer filedaRule59(e)motion,which TTD dered payment ofmedicalbenefitsandunspecified amount determination madeacompensability andor- The court trial app. Jan. 22, 2016) Lowe’sEx parte HomeCenters, LLC, no. 2140855(ala. Civ. Workers’ Compensation ment isentered. judg- summary when theALAAmotionisnotfileduntil after award fees undertheAlabama Litigation Accountability Act to lacksjurisdiction citedand authorities therein, court atrial Under Cain v. Strachan, 68So. 3d854(Ala. Civ. App. 2011), 2016) Wagnon v. Gravelle, no. 2140580(ala. Civ. app. Jan. 22, Litigation accountability act finding ofsubstantial unmetneed. center at Grandview basedontheCONRB’s inBirmingham, CON to Trinity Center Medical for establishinganewcancer theCON affirmed The review court board’s issuance ofa (ala. Civ. app. Jan. 22,2016) Inc. HealthServices, v.Brookwood SHPDA, no. 2140766 COns because thearbitration agreement itselfinvoked theFAA, ments appliedandrendered thewaiver unenforceable; forcement waivers ofclass-action withinarbitration agree- California substantive law, California’s law prohibiting en- agreement was contained withinacontract whichinvoked state whichhadheldthat becausethearbitration courts, The reversed Supreme Court judgments oftheCalifornia DirecTV, Inc. v. Imburgia, no. 14-462(u.s. dec. 14,2015) arbitration; Class-action Waivers gressional districts. ofcon- challenging ofapportionment theconstitutionality judgeisnotempowered court to adjudicatedistrict acase Given 28U.S.C. §2284(a)’s requirement, three-judge asingle v.Shapiro McManus, no. 14-990(u.s. dec. 8,2015) statutory Construction; Voting rights States Supreme Court From the United are specificallyenforceable undertheFAA. the FAA preempts California law, waivers andclass-action tach theparticipant’s separate assets. may suitunder§502(a)(3)to notbring at- the planfiduciary settlement fundonnon-traceablepates items, athird-party table relief.” whollydissi- Once theERISA-plan participant 502(a)(3)ofERISAauthorizes onlyasuitfor Section “equi- , no. Plan Health Benefit try 14-723(u.s. Jan. 20,2016) v.Montanile ofTrustees Board Elevator ofNational Indus- Erisa; subrogation therewith. tative asserted classaction doesnotmoottheplaintiff’sAct) individualclaimorthepu- claim brought underthe Telephone Consumer Protection claim (inthiscase, damagesrecoverable for statutory ona damages potentially recoverable ontheplaintiff’s individual An unaccepted offer ofjudgment for theentire amount of Campbell-Ewald Co. v. Gomez Class OffersofJudgment actions; , no. 14-857 (u.s. Jan. 20, 2016) www.alabar.org 131

T H E Alabama Lawyer 132 T H E Alabama Lawyer March 2016 abama’s program. hadnotmadea agency “determination” to withrespect Al- reviewable under33U.S.C. §1369(b)(1)(D), becausethe nation System program (NPDES)was notimmediately to administer theNationalthority Pollutant Discharge Elimi- EPA’s interim order onapetition to withdraw Alabama’s au- 2015) Cahaba Riverkeeper v. EPA, 14-13508(11thCir. nov. 30, administrative Law consider suchevidence islegalerror andrequires reversal. totion oflaw ourdenovo subject material, andchronologically relevant standard “is aques- concluded that Court evidence“whether meetsthenew, each stageofreview. Adopting atest from othercircuits, the A claimant generally hasarightto present newevidence at 1, 2015) Washington v. Commissioner, no. 15-10413(11thCir. dec. ssi Benefits Appeals Circuit of Court From theEleventh timely, since “orders compelling arbitration on a complaint Employer’s appeal of the order compelling arbitration was un- 14-15744 (11thCir. dec. 8,2015) United Steel etalUnion,AFL-CIO v. Wise Alloys, LLC, no. arbitration;Labor; appeals uitable tolling oftheADEA’s limitations period. and requires deference; and(2) Villarreal was entitled to eq- interpretation ofthestatute to cover claimsisreasonable ment; thoughthestatute isambiguous, theEEOC’s thorizes disparate claimsby applicants for impact employ- 4(a)(2)oftheADEA,29U.S.C.Held: (1)section §623(a)(2),au- Cir. nov. 30,2015) Villareal v. Reynolds R.J. Tobacco Co. , no. 15-10602(11th adEa (Continued from page131) review.” Thus, failure to R E N R O C E T A L L E P P A E H T CBA and resolve it by reference to the parties’ past practices.and arbitrator had the authority to uncover an ambiguity in the characterizing the union’s grievance as a continuing violation; construe the CBA’s timeliness provisions; arbitrator did so whenthe LMRA are final and appealable.” Arbitrator had authorityseeking to specific performance of an arbitration provision under edged there isacircuit splitonthat issue. tion isa “register[ing]” 43(a),butacknowl- undersection similar to aprotected mark. heldthat are-registra-The Court son isliablefor “register[ing]” adomainname confusingly the Lanham the Anti-Cybersquatting Consumer Protection Act, §43(d)of under court ofthedistrict aninjunction affirmed The Court no. 13-15309(11thCir. dec. 16,2015) ‘n Linend/b/a By-Design Bed FurnitureJysk v. Dutta-Roy, Cybersquatting sion, the city hastherightto imposereasonablesion, thecity time, place Although tattooing isprotected First Amendment expres- 29, 2015) Buerhle v. ofKey City West , no. 14-15354(11thCir. dec. first amendment position creates substantial evidence of being qualified. he had been in the position for nine years, and longevity in the “not qualified” was contested by substantial evidence, because Court also held that MetLife’s contention that Liebman was cases showing that even three years could be enough). The year difference in age created a fact question (the Court cited ment worker is substantially younger; in this case, the seven- The proper inquiry in an ADEA case is whether the replace- Cir. dec. 18,2015) v.Liebman LifeIns. Metropolitan Co., no. 14-13197(11th Employment to doso. tion onbehalfoftheassignor withoutexplicit authorization peti- (under Florida law) bankruptcy may notfileavoluntary An assignee of anassignment for thebenefitofcreditors 2015) In Re: Holdings, NICA Inc. , no. 14-14685(11thCir. dec. 17, Bankruptcy Act, 15U.S.C. §1125(d)(1)(A), underwhichaper- police officers.” ruledoesnotapplyinacivil suitagainst the exclusionary ered in compliance with theFourth Amendment because rants. doesnotmatter whether that evidence It was discov- Blacks’ trailer provided probable causefor the arrest war- were entitled to qualified immunity: “[t]he evidence from the incarcerationing to arrest andtemporary ofoneplaintiff) which theofficers found large amounts ofcontraband, lead- cause theythought itbelonged to someoneelse(during Police officers whomistakenlysearched plaintiffs’ trailer be- Black v. Wigington , no. 15-10848(11thCir. Jan. 22,2016) proven, would violate establishedlaw. clearly back whilehewas compliant andnon-resisting, which,if stantial evidence that officer fatally shotdecedent inthe in excessive there force was sub- caseonqualifiedimmunity; judgment to officer properly deniedsummary court District 2016) Perez v., no. Suszczynski 14-13619(11thCir. Jan. 12, immunity qualified public interest, andwas alsoprivileged. expression ofopiniononamattericons was of anartistic Furthermore, Parks aplaquedepicting andothercivilrights sell andprofit from booksandmovies concerning thestory. rightofpublicity,against anasserted thusallowing Target to law recognizeswhich Michigan as aqualifiedprivilege Parks ofRosa The isamatter story ofpublicinterest, asto Target Corp., no. 15-10880(11thCir. Jan. 4,2016) Rosa &Raymond Parks Development Institute forSelf v. ofPublicityright volved inviolative conduct. employer, himselfissimultaneouslyin- whenthesupervisor nate employee’s violating OSHAstandards conduct to his may impute asupervisor’sA court ofasubordi- knowledge 8, 2016) v.Quinlan Secretary, USDOL, no. 14-12347(11thCir. Jan. Labor was areasonable time, place andmannerrestriction. this case, however, failedto show thecity that theordinance on businessoperationsand mannerrestrictions ofparlors. In rECEnT CriminaLdECisiOns not beproved beyond areasonable doubt. Further, the that mitigating circumstances need ajury to instruct courts The Eighth Amendment doesnotrequire capital-sentencing Kansas v. Carr, no. 14-449(u.s. Jan. 20,2016) death Penalty gation in Alabama, given Alabama’s procedure. This case could have significant impact on death penalty liti- Florida’s scheme is similar and suffers from the same defect. find the facts necessary to sentence a defendant to death.” dure similar to Florida’s, “because the state allowed a judge to Ring v. Arizona had applied is an “element” that must be submitted to a jury. The Court punishment than that authorized by the jury’s guilty verdict” 494 (2000), any fact that “expose[s] the defendant to a greater right to jury trial. Under vating factors are present, violates the Sixth Amendment’s views but determines for herself whether the requisite aggra- to impose the death penalty which the trial judge then re- which an advisory jury makes a recommendation of whether Florida’s capital punishment sentencing scheme, under Hurst v. Florida, no. 14-7505(u.s. Jan. 12,2016) death Penalty; to right Jury Trial Court States Supreme From theUnited Apprendi , 536 U. S. 584 (2002), striking down a proce- in the capital punishment context in Apprendi v. New Jersey , 530 U. S. 466, www.alabar.org 133

T H E Alabama Lawyer 134 T H E Alabama Lawyer March 2016 to the “Stand Your Ground” defense from liability. criminal tributes to thealtercation inany manner, heisnotentitled thiscase,ity–in afelon inpossessionofafirearm–that con- apersonentersIf asituation engagedinanunlawful activ- 2015) Fuller v. State, no. Cr-14-0368(ala. Crim. app. dec. 18, beforehearing thecourt. that claimby apreponderance oftheevidence at apretrial to from provemunity prosecution isentitled to opportunity fense statute, Ala.Code Under the “Stand Your Ground” provisions oftheself-de- 2015) v.Harrison State, no. Cr-13-0429(ala. Crim. app. dec. 18, “stand Your ground” defense AppealsCriminal From of theCourt ing proceeding. that evidence was improperly admitted at acapital-sentenc- ment isinapposite whenadefendant’s claimis, at bottom, joint sentencing proceedings, becausetheEighth Amend- Eighth Amendment didnotrequire severance oftheCarrs’ cion to order the defendant outofthevehicle. not sufficient to supplyprobable cause or reasonable suspi- by theofficer’s own were observations, notreliable andwere conveyedThe facts in theanonymous tipwere notverified that prostitutes personswere andarmed at thetruck stop. ful becauseitarose from anuncorroborated anonymous tip drugs from lotwas unlaw- hisvehicle inatruckstop parking Defendant’s detention andresulting search and seizure of 2015) v.James State, no. Cr-14-1132(ala. Crim. app. dec. 18, Probable Cause (Continued from page133) § 13A-3-23, defendant asserting im- § 13A-3-23, defendant asserting R E N R O C E T A L L E P P A E H T cate that hefelt coerced into engaging intheconversation. incriminating statement, defendant’s didnotindi- actions the crime, and, thoughhehoped defendant would makean under Miranda. The investigator askednoquestionsabout gator, afamilyfriend, didnotconstitute aninterrogation Capital murder defendant’s conversation withpolice investi- 2015) v.Largin State , no. Cr-09-0439(ala. Crim. app. dec. 18, interrogation dant’s plea. guilty 18-8(c), was anerror oflaw requiring reversal ofthedefen- confinement to period two years pursuant to Ala.Code then immediately modifyingthat sentence to reduce the withtherequirementsporting ofAla.Code Trial court’s resentencing defendant to asplitsentence com- 2015) Williams v. State, no. Cr-14-0612(ala. Crim. app. dec. 18, split sentencing sumptive andVoluntary Standards Sentencing Manual. to follow history) criminal therequirementsprior ofthePre- dant to was prison, error for failure (inlight ofdefendant’s Ala. Code §12-25-34.2,andto instead sentence thedefen- ommendation ofthepresumptive sentencing standards of Trial court’s from dispositionalrec- thenon-prison departure 2015) v.Abro State, no. Cr-14-0059(ala. Crim. app. dec. 18, Presumptive sentencing standards viability. child inutero homicideandassaultstatutescriminal includesanunborn tal murder statute, Ala.Code of stituted thekilling ormore“two persons” underthecapi- ofawomanThe whowas eight killing weeks pregnant con- 2015) Phillips v. State, no. Cr-12-0197(ala. Crim. app. dec. 18, Capital murder; Child unborn at any stageofdevelopment, regardless of § 13A-5-40; a “person” underthe § 15-18-8(a),and § 15- L Died: December 24,2015 Admitted: 1950 Birmingham Jr. Hairston, William Burton, Died: March 25,2015 Admitted: 1981 Spanish Fort green, Howard albert Died: December 9,2015 Admitted: 1972 Montgomery iii davis, Hon. John Walter, Died: May 11,2015 Admitted: 1980 Athens Croomes, Edgar steven 22,2015 Died: October Admitted: 1953 Ashville Conwell, William Wells, sr. Died: December 10,2015 Admitted: 1981 Demopolis Burdett, russellLee Died: December 4,2015 Admitted: 1979 Mobile Buffalow, gregory Curtis Died: December 25,2015 Admitted: 1957 Birmingham Worthy newton, alexander Died: November 24,2015 Admitted: 1949 Montgomery roland, Jr. nachman, merton Died: November 4,2015 Admitted: 1948 Montgomery mcgill, sr. Hobbs, Hon. Truman Died: November 21,2015 Admitted: 1960 Opelika Hill, Hoyt William Died: July22,2015 Admitted: 1991 Gadsden Harp, Jimmie gary, Jr. 7,2015 Died: April Admitted: 1987 Florence Edwards, ii Hall, Hon. James S L A I R O M E M Died: December 1,2015 Admitted: 1982 Trussville Yost, allen michael Died: December 31,2015 Admitted: 1984 Mobile Yelverton, dean richard Died: March 6,2015 Admitted: 1984 Pell City Wilson, Tommie Jean 21,2015 Died: October Admitted: 1949 Jasper Edward Wilson, Hon. James Died: December 15,2015 Admitted: 1983 Pelham Vickers, richard William Died: November 24,2015 Admitted: 1966 Mobile Toler, desmondBurton 28,2015 Died: October Admitted: 2003 Panama City, FL strickland, Parrish Lee www.alabar.org 135

T H E Alabama Lawyer 136 T H E Alabama Lawyer L L L L L March 2016 Balloting andElectronic notice ofElection to award theBar service William d. “Bill” scruggs, Jr. Professionalism award J. anthony “Tony” mcLain awardLocal Bar ofachievement Rules ofCourt–State for 2013Alabama Books sale: Rules.cfm. able at http://judicial.alabama.gov/rules/ changes andeffective dates are avail- cash orcheckonly. Note: All rule andState bySupreme Court Law Library These are available for purchase inthe State Court–State Rules of Alabama 2013 Sale: forBooks The 2013AlabamaRules ofCourt– books are for saleat $10each. S E C I T O N T N A T R O P M I ber at (334) 229-0563 with questions. State Law Library, to: made payable to and ALSupreme Court medium orsmall. these awards basedontheirsize–large, Baytowne Wharf. Resort– andBeach at Golf theSandestin abama State Bar’s 2016Annual Meeting Awards willbepresented theAl- during contributions to theircommunities. bar associations for theiroutstanding Award ofAchievement recognizes local Achievement Award of Local Bar Contact any Public Services staff mem- AL36104 Montgomery Ave.300 Dexter ATTN: Sale Public Services–Book AL Supreme Court and State Law Library Please mailacheckormoneyorder, Local barassociations compete for The Alabama State BarLocal Bar ls wr st oo h edrhpo oyMLi and McLain Tony of leadership the honor to alism Award is available at www.alabar.org should beprepared ontheappropriate nomination form Professionalism Award through april 15,2016.Nominations will receive nominations for theJ. Anthony “Tony” McLain Award Professionalism “Tony” McLain J. Anthony [email protected]. or obtainedby Ed contacting Patterson at (334)269-1515or 2016. must complete and submit an award application by may 6, ants for eachcategory: The purpose of the J. Anthony “Tony” Profession- McLain the of purpose The AL36101 Montgomery P.O. Box 671 Alabama State Bar Executive Director Keith B. Norman The Board ofBarCommissioners oftheAlabama State Bar To considered be for thisaward, barassociations local The degree ofenhancements to the bar’s imageinthe • ofthebar’s andextentoftheimpact The quality partici- • The by degree theindividualbarinad- ofparticipation • The following willbeusedto criteria judgethecontest- community. and pation onthecitizens inthat community; vancing programs to benefitthecommunity; Applications may be downloaded from and mailedto: www.alabar.org should bepresented inany given year. tomissioners withrespect anomineeorwhethertheaward which makesarecommendation to theBoard ofBarCom- State Bar. Alabama members the of living by professionalism of service theadvancement in distinguished and long-term recog- outstanding, by nizing Bar pro- State to Alabama the devotion to hisdeep fessionalism andservice of emulation the encourage to should bepresented inany given year. tomissioners with respect anomineeorwhether theaward which makesarecommendation to theBoard ofBarCom- State Baras anorganization. ice by living membersofthebarthisstate to theAlabama presented inrecognition ofoutstanding andlong-term serv- The award isnotnecessarily anannualaward. must be It behalf ofthebarformer state barPresident BillScruggs. ofandaccomplishments on in 2002to honorthememory form available at www.alabar.org tions shouldbeprepared ontheappropriate nomination to theBarAwardService through april 15,2016. will receive nominations for the William D. “Bill” Scruggs, Jr. To theBarAward Scruggs, Jr. Service William D. “Bill” Nominations are considered committee by afive-member Nominations are considered committee by afive-member to the BarAwardThe Service BillScruggs was established AL36101 Montgomery P.O. Box 671 Alabama State Bar Executive Director Keith B. Norman The Board ofBarCommissioners oftheAlabama State Bar and mailedto: Nomina- www.alabar.org 137

T H E Alabama Lawyer 138 T H E Alabama Lawyer March 2016 ately following theopeningofelection. State Barby 5:00p.m. ontheFriday (May 20,2016)immedi- mustbevotedand electronic) andreceived by theAlabama commissioner) andrun-offs, ifnecessary. All ballots(paper be sufficient for and allcontested (president-elect elections 2016) requesting apaperballot. Asinglewritten request will onorbefore inwriting retary thefirstFriday inMay (May 6, bers whowishto vote by paperballotshouldnotifythesec- be notifiedby emailwithalinkto ballot. anelectronic Mem- 2016 andendingFriday, May 20, 2016. of theseofficers willbeheldbeginning Monday, May 16, oftheBoardMembers ofBarCommissioners and ofPresident-elect Rules Governing andSelection Election Balloting And Electronic Notice of Election their principal officestheir principal inthefollowing circuits: Commissioners of Board ofBar nomination andElection (Continued from page137) On thethird Monday inMay (May 16,2016),memberswill Notice isgiven here pursuant to theAlabamaState Bar Bar commissioners will be elected byBar commissioners willbeelected thoselawyers with 3d Judicial Circuit, Place 3 23rd JudicialCircuit, Place 4 15th JudicialCircuit, Place 3 15th Judicial Circuit, Place 1 15th Judicial Circuit 14th Judicial Circuit, Place 4 13th Judicial Circuit, Place 3 13th JudicialCircuit, Place 6 10th JudicialCircuit, Place 3 10th 7th Judicial Circuit 7th Judicial Circuit, Place 1 6th Judicial Circuit 5th r JudicialCircuit 3rd s JudicialCircuit 1st that theelection S E C I T O N T N A T R O P M I than 5:00 p.m. on the last Friday in April (April 29, 2016). received by the secretary of the Alabama State Bar no later Nomination forms and/or declarations of candidacy must be be held or by the candidate’s written declaration of candidacy. with principal offices in the circuit in which the election will tion bearing the signatures of five members in good standing All terms willbefor three years. nolater by thanMarch 15,2016. thesecretary cies certified will bedetermined by acensus onMarch 1,2016andvacan- commissioner positionsfor theseandtheremaining circuits members ofthestate offices barwithprincipal therein. New at www.alabar.org. receives formby thenomination thedeadline.secretary alabar.org submitted by theappropriate deadlineandaddressed to: applications for at-large commissioner positionsmustbe submission ofnominations due by 1,2016. April which are by elected theBoard ofBarCommissioners, are place numbers:2,5and8.Applications for thesepositions, ofat-LargeElection Commissioners A candidate for commissioner may be nominated by peti- Additional for commissioners will beelected each300 JudicialCircuit 37th JudicialCircuit 32nd JudicialCircuit, Place 1 28th JudicialCircuit 26th JudicialCircuit 25th Election rulesandpetitionsforElection allpositions are available is thecandidate’sIt to confirm the responsibility that These forms may alsobesent by emailto elections@ AL36101 Montgomery P.O. Box 671 Secretary, Alabama State Bar Keith B. Norman Nomination forms, forms declarationsand ofcandidacy At-large for commissioners willbeelected thefollowing or by faxto (334)261-6310. L Advertising Momentum for Your Firm We Will Grow Your Firm.

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[email protected] Mobile: (404) 775-0194 Office: (334) 332-8340 stokesmcnutt.com Toll Free: 1-844-7Stokes 140 T H E Alabama Lawyer March 2016 institute, visit www.ali.state.al.us. For more information about the [email protected] Othni J. Lathram stitutional amendment: This process isthe samewhetheritisabillofgeneral application, alocallaw or acon- The Process of technicalities andmay bequite adifficultundertaking. intended andmeettherequirements purpose ofthelegalsystem involves anumber drafted intheproper form. To abillinsuchway draft that itwillbothaccomplish its bill, whichisaproposal to makeanewlaw, orto amendorrepeal anexisting law, Thus, theprocess begins by withthepreparation whichalaw actually isenacted ofa general requirements ofBills Legislative Action terested inbetter understandingtheprocess. Eleventh Edition. Copies ofthisbookare available through theinstitute for thosein- ary, we were proud to present eachlegislator withacopy ofthelatest version, the forAlabamaLegislators.Handbook ofthecurrent regular At sessioninFebru- thestart forally reserved committee meetings. erally meetsinsessionon Tuesday and Thursday ofeachweek. Wednesdays are usu- Back to Basics 3. The next step The isfor next thebillto beconsidered by theentire legislative bodyofone 3. It must be placed on the committee2. agenda for consideration. Each body of the legis- mustbeintroduced It by alegislator ineitherthehouse orthesenate. Once itisin- 1. There is abasicformula orprocess whereby into abillcanbecome enacted law. The Alabama Constitution provides that nolaw may except beenacted by bill. Since 1978,theAlabama Law haspublishedThe Legislative Institute Process: A This year thelegislature beganonthefirst Tuesday inFebruary. The legislature gen- of thechambers. After the second reading, thebillisplaced ontheregular order report, the bill is reported back to the full body. This constitutes the second reading.the bill in order to make changes. If the committee desires to give the bill a favorablebefore the committee. The committee has the option of amending or substituting done. Interested members of the public have an opportunity to attend and be heard down by subject matter. The committee process is where the bulk of work on a laturebill is has a number of standing committees. These committees are generally broken bill’s firstreading. troduced, thepresiding officer assigns thebillto acommittee. asthe This isknown P U U P A R W E V I T A L S I G E L the following instances: voteceptions to thesimplemajority requirement include of voting members, assumingthepresence ofaquorum.Ex- house ofthelegislature may passbillsby asimplemajority Votes necessary meaning ittakesat leastfive calendardays to passabill. possible for steps three andfour to occur onasingleday, .When bothhouseshave passedthebill, itissent to the 7. The second house will also place6. the bill on a regular order itmustbesent to Next, committee inthesecond house 5. thebillispassedby thehouseoforigin, thebillmust If 4. To pass legislation before• the budgets are submitted to the To passlegislation not at aspecialsession onasubject • To passabillorresolution proposing aconstitutional • To passabillover thegovernor’s veto (oroverride aline • With someexceptions required by theconstitution, a Each ofthesesteps occurs onaseparate calendar day. is It has signed thebillthat itbecomes law. conference committee. thegovernor isnotuntil after It it mustconcurred onby thefirsthouseoritmustgoto a governor for signing. thesecond houseamendsthebill, If ered by the second house, it has receives its third reading. select it for a special order calendar. When the bill is consid- calendar and the rules committee of the second house may second reading. amendments,second house, for possiblywithfurther a vorably by thecommittee, thebill isreferred backto the to beconsidered againasinthefirsthouse. viewed If fa- ceives itsfirstreading. transmitted andreceived by thesecond houseandre- follow thesameprocess inthesecond house. The billis third reading. amended, andisultimately voted on. This constitutes a a billgetsbefore thefullbodyitisdebated, canbe bills that takeprecedence for agiven legislative day. Once dar isoneprepared by therulescommittee andisalistof order calendarto getconsidered. The specialorder calen- forduced, abillto itisusuallynecessary getonaspecial calendar, butwithmore than1,000billsbeingintro- isolation” resolution by a three-fifths vote of a quorum. governor, the legislative body must first approve a “budget of aquorum. included inthegovernor’s callrequires vote atwo-thirds to eachhouse.bers elected voteamendment requires ofallthemem- athree-fifths vote to eachhouse. ofallthememberselected item veto ofanappropriation bill)requires amajority journed sinedie. journed item-veto an appropriation thelegislature billafter hasad- nor’s objection. The governor doesnothave to theauthority not become lawover unlesstheyare thegover- re-passed bill approved theitem oritems become disapproved law; do Overriding a Veto toturned thegovernor for hissignature. each houseagree to theexecutive amendments, itisre- reconsidered, to ofthememberselected and, ifamajority ifsuchamendmentsjections, are possible. The billisthen tions. Hemay suggestamendments that willremove hisob- which itoriginated, withamessageexplaining hisobjec- may veto it, inwhichcasehemustreturn itto thehousein Veto thus complete into itsenactment law. sign Governor’s Action Endnotes vetoing theentire bill. approve any item oritems ofanappropriation billwithout item Veto time donotbecome law, andare saidto be “pocket vetoed.” adjournment. Billsthatafter are notapproved withinthat end ofthesessionmustbeapproved by himwithin10days Pocket Veto out thegovernor’s signature. thelegislatureafter assembles, orthebillbecomes law with- thatment. case, In thebillmustbereturned withintwo days ture, unlessthereturn was prevented by recess oradjourn- him, Sundays excepted, itbecomes alaw withouthissigna- which itoriginated withinsixdays itispresented after to Passage withoutgovernor’s signature to eachhouse,elected the governor’s notwithstanding veto. ofthemembers amajority may bepassedby avote of by thegovernor, orifheproposes noamendments, thebill 2. Ala. Const., art. V, §126. 1. On theotherhand, ifthegovernorto thebill, objects he When thebillreaches thegovernor hemay sign itand In Alabama, thegovernorIn hasthepower to approve ordis- Bills that reach thegovernor lessthanfive days before the Whenever thegovernor failsto return abillto thehousein bothhousescannotagreeIf to theamendments proposed Hunt v., 588So. Hubbert 2d848(Ala. 1991). 2 1 In anitem veto,In ofthe onlytheparts www.alabar.org L 141

T H E Alabama Lawyer 142 T H E Alabama Lawyer March 2016 The alabama fellows oftheamerican College of Trial Lawyers • The american Board of Trial advocates • church L.Bell michael into membershipatinduction theAlabama Chapter’s Annual Meeting. andChristopherBirmingham J. Zulanas gomery, L.Peyton Chapman, iii son sionalism andintegrity. membership. Criteria evaluated civility, skills, trial includeexceptional profes- jury an existing memberandbeapproved by 75percent ofthosemembersvoting on must have trials, benominated to tried by conclusion aminimumof10civiljury to by trial jury. To beconsidered intheAlabama Chapter, for participation one system andvalue for oftheright educating publicaboutthehistory theAmerican Seventh Amendment to theU.S. Constitution. ABOTA works to upholdthejury rightprovided trial cated by andpromotion to the thepreservation oftheciviljury members of ABOTA in the United States; only 109 attorneys in Alabama are members. lowing a rigorous nomination and voting process. There are approximately 7,300 the total lawyer population of any state orprovince. sidered for fellowship and membershipinthecollege cannot exceed 1percent of professionalism, andcollegiality. civility sional careers have by beenmarked the higheststandards ofethicalconduct, lawyersperienced trial whohave andwhoseprofes- ofadvocacy mastered theart of justice andtheethics, profession. andcollegiality ofthetrial civility ABOTA isanational association ofexperienced lawyers trial andjudgesdedi- Membership into the American Board of Trial Advocates is by invitation only fol- Lawyers musthave at least15years experience oftrial before theycanbecon- Invitation to fellowship careful onlyafter isextended investigation ofthoseex- The college strives to improve thestandards practice, oftrial theadministration ralph ralph of Birmingham, W. Hornsby, Jr. of Mobile wereof Mobile recently into inducted thefellowship. of Birmingham, Brian P. mcCarthy of Montgomery, JosephL.reese, Jr. (“ABOTA”) announces that frank m. Wil- of Birmingham wereof Birmingham recently for selected of Huntsville, C.gibson Vance S F E I R B R A B michael E. andmichael up- of Mobile announces that of of Mont- • president, andthethird woman to holdthat office. neys. Proctor asDRI isthefirstin-housecounsel to serve sively represent defense barattor- andthelargest to exclu-the country sional organizations ofattorneys in of thethree mostprominent profes- members, the55-year oldDRIisone ing in Washington, DC. With 22,000 tional organization at itsannualmeet- recently becamepresident ofthena- dri 2007. She is active in several other DRI committees, including She hasbeenamemberofitsboard ofdirectors since announces that Laura E. Proctor +1% , %8 ,' !%1% +%5 , - *"6 %7 %!- *4 5 6%1 *+%- %1%3 , *",' .+%+ , - *+% ,% *+1%$ %'2!11 "*+ , -.+% /0% Proctor trict ofAlabama. trict Dis- Middle , United Court, DeMent Statesable Ira District theHonor- graduation, asthefirstlaw for clerk sheserved of Law, where herJ.D. sheearned in1992.Upon generation graduate oftheUniversity ofAlabama School Pacific Corporation inNashville. Sheisafourth- nessee Defense Lawyers Association. national Association ofDefense Counsel andthe Ten- Young Lawyers’ Committee. SheisamemberoftheInter- DRI’s Alternative Dispute Committee Resolution andDRI’s founding member. Proctor hasalsobeenthechairfor DRI’s Corporate Counsel Committee, ofwhichsheisa Proctor istheassociate general counsel for Louisiana- " #$ %& '"! ("$"#) ! www.alabar.org L 143

T H E Alabama Lawyer 144 T H E Alabama Lawyer March 2016 L E S N U O C L A R E N E G E H T F O S N O I N I P O J. Anthony McLain are enclosed: tion Ainlitigation. whether my law shouldbedisqualifiedfrom firm representing thePlaintiff Corpora- quEsTiOn: Are Materially Adverse to Former Client Matter where Present Client’s Interests Person in Same or Substantially Related Client May Not Represent Another Lawyer Who Has Formerly Represented “I believe that alloftherelevant are setoutinthefollowing facts documents which ofthisletter purpose isto request aformal opinionfrom“The your office regarding “7. Letter from Lawyer Xto JudgeRite, with referenced attachments. and C. “6. Defendant’s to Appearance Objection ofAttorney, withattached ExhibitsA,B “5. Appearance ofLawyer Aascounsel for Corporation A. “4. Corporation A’s answer to counterclaims. “3. Amendment to answer andcounterclaims. “2. Answer andcounterclaims ofCorporation BandJones. ages arising from an alleged breach of equipment lease and on a personal guaranty. “1. Complaint filed by Corporation A against Corporation B and Mr. Jones for dam- Prior to this, Partner hadnever hadany dealingswitheither Jones ononeoccasion andwithhisaccountant onanother. same clientele that Corporation Partner metwith Bserviced. corporation whichwould offer to the consulting services Jones whenhewas considering theformation ofanother result ofthebreach. poration Aisclaiming damagesintheamount of$9,320asa The leaseagreement was entered into onJuly29,1988.Cor- There isacounterclaim complaint aswell. and athird-party lease/purchase agreement by Corporation BandJones. filed onanddealswithanallegedbreach ofanequipment Jones isthepresident andsolestockholder. This lawsuit was business ofdesigning andproviding printed businessforms. against Corporation BandMr. Jones. Corporation Bisinthe show that your ispresently firm representing Corporation A ansWEr: to Judge Rite which I expect willbesigned shortly.”to whichIexpect Judge Rite office. Enclosedisacopy oftheorder whichIamsubmitting During 1991,Lawyer A’sDuring represented (“Partner”) partner The documents submitted withyour request for opinion “Judge hasaskedthat Rite Irequest thisopinionfrom your Exhibits 1through 6. ‘Objection to Appearance ofAttorney’ withattached “8. Response of Lawyer A’s firm in opposition to Defendants‘ Design andMarketing Services and subject of the two matters must be examined. The issues ing whether two matters are “substantially related,” the scope ests are materially adverse to the former client.” In determin- substantially related matter where the present client’s inter- client may not represent another person in “the same or a 1.9(a) provides that a lawyer who has formerly represented a would be disqualified by any type of conflict of interest. Rule the firm is disqualified under Rule 1.10 if Partner himself sents another party in a lawsuit against Jones. Any member of must be addressed when another member of the firm repre- would beconfidential underRule1.6(a). tained information inthecourse oftherepresentation which client ofPartner’s for oftimeandthat period heob- abrief tached asexhibits. There isnoquestionthat Joneswas a association withJonesandalldocuments from hisfileare at- bill for Partner hassubmitted hisservices. anaffidavit ofhis Jones ortheaccountant. At theendofAugust, Partner sent a between Partner contact and that, there was nofurther with my recommendations consideration.” for further After ting out to metogether you essential imparted facts “the company. day,The next he sent Jonesafour-page letter set- August,In Partner metwithJonesaboutforming thenew dayletter confirming the next keypoints we“the examined.” man. Partner metwiththeaccountant, Mr. Smith,andsent a 300 North Dean Road, Suite 5-193 • Auburn, AL 36830 AL Auburn, • 5-193 Suite Road, Dean North 300 Since Jones is a former client of Lawyer A’s firm, Rule 1.9 334.799.7843 • • 334.799.7843 Sales Support Material Product Packaging Print Ads Product Catalogs Brochures Websites Logos m o c . k n i l p a t . w w w Professional Portfolios P.O.P. Displays Billboards Media Kits Publication Design Trade Show Exhibits www.alabar.org 145

T H E Alabama Lawyer 146 T H E Alabama Lawyer March 2016 client, thelawyer isdisqualified. tion isinany possibleway disadvantageous to theformer the former that client. sense, In iftheconfidential informa- information that hewillpotentially useit inaway adverse to also thepresumption that ifalawyer possessesconfidential tion ofaclient. That canberebutted by thelawyer. There is has gainedconfidential information representa- intheprior compassed intherule. There isapresumption that alawyer Public information orinformation isnoten- generally known dences gained by alawyer theformer during representation. is otherwise, then Rule 1.9(b) must be addressed. Corporation A against Jones in the instant case. If the finding consultation, then the firm is precluded from representing A’s suit is substantially related to the issues of Partner’s prior If the trial court finds from the facts before it that Corporation as opposed to an ongoing representation of Jones’s business. tion of Jones appears to have been brief and limited in scope involved must be very closely connected. Partner’s representa- (Continued from page145) Rule 1.9(b) isdirected to theprotection ofclient confi- L E S N U O C L A R E N E G E H T F O S N O I N I P O sentations into account. [RO-1994-13] lationship, if any, between the subject matter of the two repre- blanket disqualification because it does not take the actual re- duct. fication. That term is not used in the this time and, that, in and of itself, does not require a disquali- out that the “appearance of impropriety” is not the standard at ters are for the court to decide. The commission would point motion to disqualify pending in the trial court and those mat- tual or other findings determinative of this question. There is a disqualified. any way, intheCorporation Acase, isnot thenthefirm information reveals that itcould notbeusedby Partner, in fied from representing Corporation ananalysis ofthe A.If his acquired are knowledge, then heandthefirm disquali- verse way, orthat hewould have anadvantage becauseof representationgathered hisshort during ofJones, inany ad- The Disciplinary Commission is not going to make any fac- itisfoundIf that Partner could usetheinformation he The application of such a standard tends to result in Rules of Professional Con- L Chance Corbett is an as- serving as the team leader for over three years. sociate director in the He is a senior instructor for the Alabama Law Auburn University Depart- Enforcement Agency and teaches an ad- ment of Public Safety. His vanced active shooter training program to law responsibilities include enforcement officers. Corbett leads the efforts leading the Emergency to teach Active Shooter Response Training to Management Program for the students and employees of Auburn Uni- Auburn University which versity as well as other schools and organiza- includes planning for and tions as needed. managing emergencies and disasters that affect Auburn University. Corbett received his bachelor’s degree in criminal justice and master’s degree in education from Troy University. He is a POST-certified law enforcement officer, nationally registered paramedic and certified firefighter. He is also a certified emergency manager with the Interna- tional Association of Emergency Managers. Prior to working for Auburn University, Cor- bett served seven years as the Homeland Se- curity/EMA director for Russell County and has more than 24 years of public safety experience, many in the law enforcement field. Corbett is a member of numerous national public safety and emergency management Featuring the “Wingnuts” Friday, June 24 at organizations. the Presidential Dinner and Young During his career as a fulltime law enforce- Lawyers’/Leadership Forum sections party, ment officer, Corbett spent more than six years with lead singer district Judge alan furr, as a member of a local SWAT team, including 30th Judicial Circuit, Pell City 148 T H E Alabama Lawyer March 2016 [email protected] Hughston Nichols designed to introduce 11 ferences are award-winning programs gomery, Huntsville and Mobile. The con- place this spring in Birmingham, Mont- Pre-Law Conferences ing at the Grand Hotel in Point Clear. members held their annual winter meet- YLS officers and executive committee meeting in San Diego. Later that month, tion Young Lawyers’ division delegates to the tion of the Alabama State Bar sent four Conferences andSeminars BusywithMeetings, Section ity lawyers. During the program, students to talk one on one with practicing minor- vides students with a unique opportunity criminal justice system. The program pro- grade students to the American civil and Upcoming events include the In February, the Young Lawyers’ Sec- american Bar associa- , which will take th - and 12 mid-year minority th - E T A D P U S L Y formation on dates and times, or if you ous support of our sponsors. For more in- pre-law conferences, thanks to the gener- charge to students participating in the neys in a small-group setting. There is no trial and the legal profession with attor- the students are able to discuss the mock speaker and break-out sessions where gram includes a luncheon with a keynote tive on courtroom procedure. The pro- jurors, students gain an insider’s perspec- Through participating in the mock trial as ries and witnesses play in the system. conflicts and the roles judges, lawyers, ju- courts of the United States resolve legal students a better understanding of how neys. This experience is designed to give lated trial, performed by practicing attor- also have an opportunity to view a simu- from several speakers, including an ethics presentation. There ing for the trial and appellate courts. Saturday, we will hear peals, reese James f. Hughey, iii judges will include around the state along with appellate judges. Our panel of On Friday May 20, we will welcome judges from circuits knowledge of, regardless of their specialized area of practice. of topics that all young lawyers should have a working this year. The CLE is crafted each year to offer a broad range Beach, attendance nearly doubled. We expect similar growth young lawyers. In 2015, after moving the seminar to Orange the largest seminar held in Alabama specifically targeted to seminar [email protected] are interested in becoming a sponsor, contact The largest YLS event of 2016 will be our referral service asB Lawyer Join the Judge W. scott donaldson (Montgomery). From the Alabama Court of Civil Ap- May 20-21 at The Caribe. The Orange Beach CLE is or (251) 405-1300. Judge sarah H. stewart (Birmingham) and will discuss effective writ- Judge Eugene W. Orange Beach (Mobile), Latisha davis Judge at committee members. of our upcoming events, contact me or any of our executive mation on getting involved in the YLS or helping out with any and .com/ABSyounglawyers [email protected] shreve robert contact sponsorship opportunities, receive areduced rate. For additionalinformation, orfor (888) 607-7020andreferencing “ASB Young Lawyers CLE” to is a must-attend event for all young lawyers in Alabama. practice and network with others from around the state. This portunity for them to meet judges in front of whom they may opment of your firm’s young lawyers, it is a tremendous op- eachparty day and cocktail reception and silent auction. will also be a welcome reception, golf tournament, beach Be sure to keep up with the YLS through yourBook room by calling The Caribe at (251)980-9000or Not only is this a fantastic CLE aimed at the practice devel- https://instagram.com/asbyounglawyers        OVErViEW Of THE PrOgram THE Of OVErViEW JOin? WHY participation Professional insurance liability required for tween $1,000and$5,000 percentageMaximum fee of$250onfees be- Annual fee of$100 Referrals inall67counties Improve your bottom line fromBenefit efforts ourmarketing Expand your client base Download the application the Download at or email [email protected]. sign meup! or (251)694-9393. www.alabar.org , https://twitter.com/absyounglawyers https://facebook . For more infor- www.alabar.org at L 149

T H E Alabama Lawyer 150 T H E Alabama Lawyer March 2016 Please email announcements to [email protected]. S M R I F G N O M A , S R E B M E M T U O B A adam Plant office. intheBirmingham is apartner andmillicent ing partner W. ronnlund that m.stanford Blanton office.joined theBirmingham Pierce sharonda Childs, Clay Johnson,sam Among Firms Phone (334)721-3767. 36104. 312 ScottSt., Montgomery the openingofO’mailiaLaw PLLC Phone (256)273-0833. 117 Jefferson St. N,Huntsville 35801. L.grahamopening ofrebekah LLC Members About ii Whitt steineker J. Thomas richie, Brad robertson, Tiffany J. degruy, Carroll ginger gray, are partners in the Birmingham office. intheBirmingham are partners Battle & Winn LLP &BinghamLLP Balch Baker donelson Katie Cameron O’mailia grahamrebekah Bradley arant and david L.silverstein, Jr. is apartner. and William T. Thistle, announces that announces that announces the announces that announces is themanag- announces at at Johnson announcesBirmingham that Jessica ingham office aspartner. Wesley C.redmond as legalcounsel. nounces that david r.Hume, Jr. Clay maddox opening of a Clanton office and that Hunnicutt that firm. Lisa W. Overton shareholder. that Vincent J.iii schilleci, Mobile. officeBirmingham andHouston isin Dorius, SinorandArnwine are inthe arnwine sinor Houston Baggett, matt dorius Carr allison Burns, Brashier &JohnsonLLC fordHarrison LLP internationalB.L. LLC Harbert fuller Hampton LLC fish nelson & Holden LLC f&B Law firm PC dominick feld Hyde PC Karen Cleveland joined asanassociate androb joined ascounsel. Baggett, joined asapartner. are shareholders, melissa joined as associates. is a senior associate there. announces that Evan is associated withthe announces that announces that joined theBirm- and and Heather announces the ashleigh announces joined asa announces joined an- of J. Jeremy gaddy nounces that Louisville and Birmingham. nounces the opening of offices in B. Hill Bennett, E. dianne gamble Beck, iii Black PC ingham andAtlanta, isapartner. nounces that JeffLeonard, ofBirm- Huie, fernambucq & stewart Hill, Hill, Carter, franco, Cole & davisHeninger garrison joined the firm. The firm also an- is a shareholder and announces that Jennifer reid Egbe are partners in the firm. James E. an- and alicia f. an- dana and City offices,City respectively. associates andAlex intheBirmingham garmon & nelson joined asanassociate. announces that d. Carter Weeks shareholders. rob Ozols nounces alvin Hope, JonLevin, morris, Haynes, Wheeles, Knowles mcCollum & Wilson PC maynard Cooper &gale and Taylor a.Pharr announces that matthew g. and Trice stabler in Auburn an- are joined as sims. Carpenter, Lawrence O’Brien, & nameisnowand thefirm Thornton, announces that Lee sims Lazenby &Lawrence Thornton, Carpenter, O’Brien, Cole gresham that Brooke m.nixon starnes davis florie LLP Parosen Harwood Will davis, Jordan gerheim L are partners. is ashareholder. of Talladega announces that is apartner announces www.alabar.org and 151

T H E Alabama Lawyer 152 T H E Alabama Lawyer L L L L L L March 2016 miscellaneous Public reprimands suspension disbarments status Transfers inactive to disability reinstatements • Mobile attorney Mobile david graham Kennedy • attorney Lowell Birmingham gloria Brown Collins • Status Inactive Transfers to Disability attorney Bessemer Briondejonrussell • Prattville attorney daleLively richard • Reinstatements status. [Rule 27(c),Pet. No. 2015-1595] ofGeneral Counselto theOffice requesting to betransferred inactive to disability Board oftheAlabama State Barinresponsenary to Kennedy’s petitionsubmitted entered itsorder basedupontheNovember 9,2015order ofPanel IoftheDiscipli- vember 9,2015,by order ofAlabama. oftheSupreme Court The supreme court Proceduretus pursuant to Rule27(c),AlabamaRules ofDisciplinary , effective No- status.active [Rule27(c),Pet. No. 2015-1604] mitted ofGeneralCounsel to theOffice requesting to betransferred in- to disability Board oftheAlabama State BarinresponseDisciplinary to Collins’s petitionsub- enteredcourt itsorder basedupontheNovember 10,2015order ofPanel Iofthe tive November 10,2015,by order ofAlabama. oftheSupreme Court The supreme Procedure statusactive pursuant to Rule27(c),AlabamaRules ofDisciplinary , effec- Russell onSeptember19,2014.[Rule28,Pet. No. 2014-1474] Board oftheAlabama State Bargranting thepetitionfor reinstatement filedby supreme court’s order was baseduponthedecisionofPanel IIIoftheDisciplinary abama, effective August 19,2015,by order ofAlabama. oftheSupreme Court The 17, 2012for 90days. [Rule28,Pet. No. 2014-1235] a pleaagreement inothermatters, hislicense was alsosuspendedonNovember May 18,2012,Lively’s license to law practice was suspendedfor sixmonths and, in upon thedecisionofPanel Board oftheAlabama State Bar. IIoftheDisciplinary On 6,2015,bybama effective order October ofAlabama oftheSupremebased Court S E C I T O N Y R A N I L P I C S I D was reinstated to oflaw thepractice inAla- was reinstated to oflaw thepractice inAl- was transferred sta- inactive to disability was transferred in- to disability Centreville attorney Thomas Hobson, sr. michael • Tuscaloosa attorney • Huntsville attorney • Disbarments dled client funds. [Rule 23(a),Pet. No. 2015-1563] disbarment, baseduponallegations that Hobsonmishan- Board’sDisciplinary order accepting Hobson’s consent to 2015. enteredThe supreme court itsorder basedonthe ofAlabama, 28, the Supremeeffective Court October disbarred from oflaw thepractice inAlabama by order of client funds. [Rule 23(a), Pet. No. 2015-1499] based upon allegations that Brantley misappropriated Board’s order accepting Brantley’s consent to disbarment, supreme court entered its order based on the Disciplinary Supreme Court of Alabama, effective October 20, 2015. The from the practice of law in Alabama by order of the and closing protection letter. [Rule 23(a), Pet. No. 2015-1537] Berman admitted to fraudulently issuing a title commitment order accepting Berman’s consent to disbarment, in which court entered its order based on the Disciplinary Board’s Court of Alabama, effective October 23, 2015. The supreme the practice of law in Alabama by order of the Supreme Betsy Ellen Berman Laurie ames Brantley was disbarred from was disbarred was On October 30, 2015, Fairhope attorney • Public Reprimands attorney Birmingham William david nichols • Suspension the complainant a number of documents that indicated tiations with his mortgage company. Home Solutions sent charged the complainant $3,600 to represent him in nego- Solutions, a non-lawyer-owned company, subsequently tions, to provide loan modification services. Home sippi resident after he retained a company, Home Solu- R. Prof. C violations of Rules 1.4(a) and (b), 5.4 and 8.4(a) and (g), received a public reprimand with general publication for from oflaw thepractice inAlabama. [ASB No. 2014-342] ted to theunauthorized oflaw practice whilesuspended Nichols’s plea,whereinadmit- conditional guilty Nichols Commission’sbased ontheDisciplinary order accepting cember 14, 2014. enteredThe supreme court itsorder by order ofAlabama, oftheSupremeeffective Court De- pended from oflaw thepractice inAlabama for two years care ofYOu? . A complaint was filed against Hussey by a Missis- Alabama Lawyer Assistance your clients, but You takecare of Confidential call services, who takes assistance Program For information onthe alabama Lawyer Program’s free (334) 224-6920 Curtis ray Hussey was sus- www.alabar.org and Ala. . 153

T H E Alabama Lawyer 154 T H E Alabama Lawyer March 2016 • On October 30,2015,Centre OnOctober attorney Evan Walter smith • (Continued from page153) the court denied Smith’sthe court motion, Smithfiledarenewed going workers’ compensation After claim instate court. takenly believed that thecomplaint was related to the on- that theclients didnot fullycomprehend Englishandmis- aside thedefaultjudgment. As grounds, Smithargued garnishment hadbeenissued, Smithfiledamotionto set against Smith’s of clients.awrit September 2012,after In As issuedadefaultjudgement aresult,court. thecourt tered againsttherestaurant andits owners by of theclerk defendants failedto fileananswer andadefaultwas en- withthecomplaint inJune2012. However, served erly the 2012.Eachofthedefendants inApril eral was court prop- subsequently filedaFair LaborStandards suitinfed- Act owners inaworkers’ compensation claim. The plaintiff to defend2012, Smithundertook arestaurant andits for violations ofRules1.3and8.4(g),Ala.RProf. March C.In received apublicreprimand withoutgeneral publication law. [ASB No. 2014-195] their customers and to collect fees in violation of federal be used by these entities in an apparent attempt to defraud lowed his status as a Mississippi and Alabama attorney to sociating with these various entities, Hussey negligently al- Hussey had very little contact, if any, with the clients. In as- to act as local counsel for Mississippi and Alabama clients, loan-modification services. Despite the fact that Hussey was Alabama clients and to charge upfront fees when providing the entities to undertake representation of Mississippi and Alabama. Hussey’s involvement with both entities allowed marily of reviewing files of clients located in Mississippi and legal services to their clients. These services consisted pri- tion Business Solutions whereby Hussey agreed to provide tionship with both the Danielson Law Group and Founda- of the Danielson Law Group of Utah. Hussey did have a rela- Foundation Business Solutions, LLC, which was an off-shoot Home Solutions was an off-shoot of a company called or with Home Solutions. However, it was discovered that to the complaint, Hussey denied ever agreeing to work for complainant filed a grievance against Hussey. In response plainant’s home was foreclosed upon. Subsequently, the any meaningful services to the complainant, the com- process. After Home Solutions apparently failed to provide providing legal services during the loan-modification that Hussey, who was also licensed in Mississippi, would be S E C I T O N Y R A N I L P I C S I D • Montgomery attorney Charles Montgomery Ted Turnipseed, Jr. • • By order By of Alabama, oftheSupreme Birmingham Court • Miscellaneous 2013-1827] versely onhisfitness to reflecting law. practice [ASB No. 8.4(a) and(g),Ala.R.Prof. C.,by ad- engaging inconduct afalsestatement andRules ofmaterialingly making fact Turnipseed violated Rule8.1(a),Ala.R.Prof. C.,by know- curseat thecomplainant.fact, With thisconduct, sional” telephone callwiththeclient wherein hedid, in the bar, helater avery admitted conducting “unprofes- denied that hecursedhisclient inhisinitialresponse to complainant telephoned Turnipseed. After Turnipseed first Public 2,2013,the Schools. OnoraboutOctober gomery equate accommodations provided to hissonby theMont- represent compensation himinamatter for seeking inad- 2011,thecomplainant hiredabout October Turnipseed to ing Rules8.4(a)and(g)8.1(a),Ala.R.Prof. or C.In istrative fee pursuant to Rule33,Ala.R.Disc. P.,for violat- to 30,3015andwas pay instructed October a$750admin- ceived apublicreprimand withoutgeneral publication on him ofthegarnishment. [ASB No. 2014-718] coat pocketandforgot thematter until theclients notified Smith alsoadmitted that heplaced thecomplaint inhis the clients that hewould file ananswer ontheirbehalf. copy ofthefederal complaint to himandthat heinformed negligence andadmitted that hisclients haddelivered a swer to thefederal complaint was baseduponhisown this motion,Smithadmitted that thefailure to fileanan- aside thedefaultjudgment 2013.In was filedinOctober lated to thestate complaint. Later, anothermotionto set clients mistakenlybelieved thefederal complaint was re- motion to that setasidedefaultjudgmenthis reasserting ciplinary charges. [Rule27(c);Pet.ciplinary No. 2015-980] made it “impossible to adequately defend himself” ondis- that Abernathy was notsuffering from that adisability Board’sits order basedupontheDisciplinary order finding effective September29,2015. enteredThe supreme court and theprevious Rule20interim suspensionreinstated, status, inactive disability effective September 29,2015, attorney Kevin michael abernathy was removed from re- L Court Reporting· Videography •Videoconferencing• Worldwide Scheduling· Trial Technology• Conference Rooms

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