J. Cole Portis and Family

THE AlabamaSEPTEMBER 2016Lawyer | VOLUME 77, NUMBER 5 L L License to Tell Page 330

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SEPTEMBER Live Seminars 23 Criminal Defense Law Tuscaloosa 30 Adult Guardianships & Conservatorships Tuscaloosa &ŽƌŵŽƌĞŝŶĨŽƌŵĂƟŽŶŽƌ to register, visit CLEalabama.com OCTOBER or call 800.627.6514 or 7-8 Family Law Retreat to the Beach Orange Beach 205.348.6230 14 Real Estate Law Birmingham ϭϵ WƌŽĨĞƐƐŝŽŶĂůŝƐŵĨŽƌEĞǁĚŵŝƩĞĞƐTuscaloosa Ϯϭ ƉƉĞůůĂƚĞWƌĂĐƟĐĞBirmingham ĂŶ͛ƚĂƩĞŶĚŝŶ 28 Social Security Disability Law Tuscaloosa person?

NOVEMBER Check out our other 4 Healthcare Law Birmingham ŽƉƉŽƌƚƵŶŝƟĞƐ͊ ϭϳ WƌŽĨĞƐƐŝŽŶĂůŝƐŵĨŽƌEĞǁĚŵŝƩĞĞƐBirmingham 18 Bankruptcy Law Update Birmingham Webcasts: Most of our 30 Alabama Update Tuscaloosa live seminars will be webcast. Watch the seminar as it happens DECEMBER from your own computer. 2 Tort Law Update Birmingham 8 Estate Planning Birmingham KŶͲ>ŝŶĞ͕KŶĞŵĂŶĚ͗ 15 Employment Law Birmingham Visit CLEalabama.com for 24/7 access to over 16 Alabama Update Birmingham 200 online programs and 19 Trial Skills/Evidence Birmingham teleconferences. 20 Business Law Tuscaloosa THE S E L C I T R A E R U T A E F 5 R E B M U N , 7 7 E M U L O V | 6 1 0 2 R E B M E T P E S Alabama Lawyer Alabama Pro Bono Attorneys Honored at Alabama Supreme Court Annual Meeting Award Recipients and Photo Highlights Display Coming to Heflin-Torbert Judicial Building CLE Program Remembers Beloved Lawyer and Bankruptcy and Unbundling: Oil and Water? “Magna Carta: Enduring Legacy1215-2015” Raises Funds for Fellowship in His Honor The NewPartnership Audit Procedures: By Professor GaryE. Sullivan andJessica M. Zorn Alabama Lawyer Assistance Program Second Annual Recovery Retreat Finding Our Way in the Dark By Stuart J. Frentz andBruce P. Ely Spring 2016 Admittees Note from the Editor By Stephen D.Heninger By Robert B. Thornhill License to Tell 383 358 357 356 354 350 344 336 330 325 phy, Photo by Josh Moates, Kim Box Photogra- Joy, Cole and Jim. row, left to right, are son-in-law Thomas, Elizabeth with Eli, Zoe and Jon Cole. Back Samuel, Sarah Kathryn with Traye, Emme, and wife Joy. Front row, left to right are are 2016-2017 ASB President Cole Portis Pictured on the cover with their children On On CoverThe http://www.kimboxphotography.com/ 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 About Members, General Counsel President’s Page Opinions of the Among Firms YLS Update Memorials 394 328 324 370 368 386 384 382 374 www.alabar.org 321

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Samford University is an Equal Opportunity Institution that complies with applicable law prohibiting discrimination in its educational and employment policies and does not unlawfully discriminate on the basis of race, color, sex, age, disability, veteran status, genetic information, or national or ethnic origin. 324 T H E Alabama Lawyer September 2016 [email protected] or [email protected] J. Cole Portis And Communication A Commitment to Transparency heritage as the religious leaders. Instead the same religious beliefs and cultural who was beaten and left for dead held particular neighbor because this man these religious leaders would love this other side of the road. You would think leaders see him, but they pass by on the beaten and left for dead. Two religious walking along the road, he is robbed, a parable. neighbor?” response, In Jesustold them their handandsaid, “Well, whoismy yourself.” inthecrowd Somebody raised strength. And, love your neighboras soul, mindand withall yourGod heart, commandment?” Jesusreplied, “Love According to the parable, as a guy was Jesus was asked, isthegreatest“What E G A P S ’ T N E D I S E R P State Bar. service prism of our values: we do as a bar must pass through a the Alabama State Bar, everything that man’s neighbor?” are met. Jesusasked, was this “Who thismanuntil hisneeds and nurtures a stranger. cares for Hepainstakingly displays Samaritan Good selflesslove to were enemies, butinstead ofhatred, the Typically, andIsraelites theSamaritans this Israelite, for who hasbeenleft dead. Samaritan. noticesThe Samaritan Good they purposely ignored the hurting man. of stopping and rendering aid, however, Who are our neighbors? As lawyers in good And thenalongcomes thevery . These values guide the Alabama trust, integrity and ter Bar” banneronthehomepage, www.alabar.org), my ways to me:thestate contact barwebsite (clickonthe “Bet- the timeyou read thismessage. The letter gave you three you that thisisyour know bar. You shouldhave received itby sion. We want to listen to ourlawyers andhelpthem. integrity, whopossessgreat ideasandwholove ourprofes- those resources are memberswhoare bright, whomaintain cause, you see, we have agreat resource inourstate barand to munication I amcommitted. Iamcommitted to transparency to com- your behalfandwe gladlydoso, butIwant you that to know your I want to love you, love ourbar, isto letyouthat thisis know have given this agreat dealofthought. Oneoftheways that lawyers, however. What shouldwe doto love ourneighbor?I pline outoflove, thenwe have failed. discipline lawyers whoviolate ourrules. we If donotdisci- designed to love ourmembersandthepublicenoughto hate them?No. Ilove Because disciplinesystem them.Our is have to disciplinemy children. Why doIthat–because I love. Many ofyou have children, I andsodoI.Sometimes our bar, canandshouldbeabout this–discipline butknow istruethatabout discipline.disciplineisoneofthetasks It pline. Ihearthecomment that thestate often barisonly that looklike? lawyers and folks inourcommunities andstate. What does and for thepublic.otherwords, In we mustlove ourfellow lieve that lawyers inourbarare advocates oftheprofession I recently sent aletter to you as amemberofthebarto let We asabarare that disciplines farmore thananagency theAlabama State often, Most Barisassociated withdisci- Further, aswe we trust, practice integrity andservice, be- our members, butIwant to hearfrom ourmembers. Be- Linda Flippo([email protected]). free toshareyourthoughtswith Margaret Murphy([email protected]), Allison [email protected] ( ) or work ofthisnewcommittee. If youhavesuggestionsabouttheAddendum Hawley bar. You have entrusted many leadersto work hard on Over thenextfewmonths,you willseechangesintheAddendum, bothincontentandstyle,which willbetheresultof with ourmembers. NotonlydoIwant to speak agreed tochairthiscommittee, andLindaFlippohasagreedtoserveasvicechair. publications indevelopingand publishingamorerobustandinformativeAddendum. Allison hasgraciously dendum in theAddendum andwouldliketoseemoreinformationsetforthinit. vey andledadiscussionoftheresultswithentireboard. Ingeneral,membersofourbarplacegreatvalue Skinner about theusefulnessofdigitalpublication,Addendum . Overthelast18months,boardmemberAllison R O T I D E E H T M O R F E T O N Based onthesurvey, theEditorialBoardhasdecidedtodevelop astandingcommitteeoftheboard–theAd- I ampleasedtoreportthatThe Alabama Lawyer Committee. The primaryfunctionoftheAddendum Committeewillbetoworkwiththedirectorof chaired acommitteeoftheEditorialBoard,duringwhichshe andhercommitteedevelopedthesur- enough to encourage our growth in mind, body and spirit. faithful in their faith than I am. These volunteers will love us engage their minds more than I do. They are much more know much more than I. They exercise more than I do. They and spirit. Already, I have had many people volunteer, who wellness initiative. This initiative will deal with mind, body to helplawyers before theymakepoordecisions? families andallotherrelationships. what elsecanwe So do just affectthat lawyer. Their affectstheirclients, conduct to thelawyers andothers. The lawyers’ poorchoices donot lawyers.dress theneedsofthesehurting They display love ALAP, we have agreat staffandvolunteer lawyers whoad- dealt well withlife. They have madepoordecisions. Within lives. They have notdealtwell withstress. They have not other reasons, have goneinto adeep, place dark intheir (ALAP). We have lawyers who, becauseofstress andmany this year hasto dowithhealthandwellness. ways. Oneoftheinitiatives that we willmove forward with the state, we are goingto helplove ourlawyers inother a state bar love them? How can we meet their needs? and they are hurting. We need to listen to them. How can we as them. They are in your communities. They are in your local bars two years to travel the state and to listen to lawyers. You ofknow our bar who are hurting. I have been blessed over the last ideas abouthow we canimprove ourbar. want to And, hearcriticism. mostly, Iwant to listen to your want to hearthegoodandbad. Iwant to hearpraise. I phone number(334-451-0856).Iwant tofromyou. hear email ([email protected]) andmy personalcell We will lay the foundation and the process for a health and We have agreat alabama Lawyer assistance Program additionto buildingrelationshipsIn withlawyers across We must strive to improve because there are many members Editorial Boardhassurveyed Alabama StateBar members and howitcanhelpyouyour lawpractice,feel –Gregory H. Hawley, [email protected] www.alabar.org I L 325

T H E Alabama Lawyer 326 T H E Alabama Lawyer September 2016 sioners inhelping leadourbar. executive director, future presidents andfuture barcommis- place inmid-2017. The strategic planwillassisttheincoming because we willhaveimportant anewexecutive director in of thisyear, we willhave suchaplaninplace. This isvitally range strategic plan looking forward to working with Monet. bars increase minority participation. I am law schools, and in helping our local and state to address increasing minorities in Alabama tremendously. She will be leading the charge capable woman who will help the bar the Alabama State Bar. She is an amazing and offering uniqueitems to law. helpourmemberspractice to seethemany benefits),butwe greater willbring value by benefits (clickonthehomepagebannerat www.alabar.org ing memberbenefits. The baralready hassomeamazing never considered. well asnewareas oflaw that exist that mostlawyers have emerging areas would berelated to current areas practice as advocate for whoyou them,theyknow are.” result, whentheydoneedyour helpandtheyneedyou to andlovecommunity your neighborinyour community. As a your community. Thus, you needto beengagedinyour me allow you of to ofthefabric understandyou are part the latest that principles you marketing needto consider. Let thatprinciples you needto consider. Let metell you about ness ideas. Let metell you aboutthefoundational business business. Let metell you aboutthelatest andgreatest busi- that“Listen, you Iknow love law, practicing butthisisalsoa speakers to come inandengagewithourmembersto say, help themintheirpractice. about discovering technology that isavailable to themto technology that isavailable to them,andto beenthusiastic technology. Iwant lawyers to understandthescope ofthe there willbethree tracks. First, there isatrack related to what IcallLawyer University . Within Lawyer University, (Continued from page325) Additionally, ourstate bar hasnotimplemented along- monet gaines Also, we willmeettheneedsofourmembersby increas- The third track isgoingto beemerging areas oflaw. These The second track isrelated to businessoperations. Iwant We are alsogoingto begin into theprocess oflooking is the new vice president of since 2005. It ishopedthat bysince theend 2005.It Gaines E G A P S ’ T N E D I S E R P political realm as we willhelpthemandtheinnocent children theyserve. Lawyers, judgesandDHRhave askedfor ourassistance and system.ment ofHumanResources andwiththecourt foster system. This year ourbarwillengagewiththeDepart- thelivesto ofmore impact than30children inAlabama’s are foster parents andwe have had amazingopportunities and that isthrough thefoster care system wife. My andI thousands ofhours, butwe must improve, andwe willdoso. bor. There are lawyers inlarge whodonate andsmallfirms day forevery nocredit. They doitoutoflove for theirneigh- serve. sacrificially They are small-town lawyers whodothis to properly fundourjudiciary. We have many lawyers who woefully insufficient. This isexacerbated by ourstate’s failure tinue to increase andourlegalfundingcontinues to be able for fartoo many ofAlabama citizens. Poverty levels con- to Justice can love ourneighborsisto continue to improve ouraccess As Imentioned, we mustalsolove thepublic. Oneway we for otherswillbebothconstant andconsistent. selves to loving othersthrough Ihopethat ourlove service. group oflawyersa wonderful whohave dedicated themthat we have before us. We have agreat foundation. We have a better bar, we must work together to meetthe challenges need your help. order In for usto love our neighborsandbe agenda isaggressive. We will move forward, butIgreatly engaging ourstate law schools. The plate isfullandthe oflaw,practice young lawyer education andmentoring, and bama citizens state during emergencies, theunauthorized issues,funding, andsmall-practice lawyers solo- helpingAla- yourself in public service and love your neighbor. of laws. Yet, our legislative body has very few lawyers. Engageneighbor enough to become a public servant. We are a nation gaged as a public servant in the legislative process. Love your care if you are a lawyer. I pray that you will consider being en-voting for Hillary Clinton. I do not care if you are a Libertarian. I if you are a proponent for Donald Trump. I do not care if you publicanare or Democrat. During this election season, I do not care It is also critical that we, as lawyers, engage the public in the Another way that Ienvision ourbarloving ourneighbor love,Our though,mustnotstop withhelpingoneanother. I look forward to serving you.I lookforward to serving And, there isso much more to do:legislative help, court efforts. Equal justice underthelaw isnotattain- public servants . I do not care if you are Re- L Payment Detail

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law Pay ,s a registered IS0/MSP of BMO Harns Bank, N .A.. Chicago. IL 328 T H E Alabama Lawyer September 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 five years passed. the barexam inthree of theprevious 75 percent ofitsgraduates whotook exam. Or, thelaw schoolmay show that where theirgraduates takethebar for ABA-approved schoolsinthestate points below theaverage bar-pass rate ers isnomore than15percentage show that itspassrate for first-time tak- in oneoftwo ways. The law schoolcan school meetsthebar-pass requirement announced at theendofthismonth. 78 percent. The July2016results willbe pass rate for first-timers inJuly2015was first-time takerswas 91percent. The rate for theJuly2013administration for takers was 65percent. Similarly, thepass February 2016passrate for first-time for February 2013was 79percent. The Bar Examfor thefirsttime, thepassrate accredited theAlabama schoolstaking these declinesaswell. For graduates of last several years. wide drop inbarpassagerates over the have beenexpressed aboutthenation- largely inresponse to concerns that tice andcomment. The changesare standards have beencirculated for no- can BarAssociation (ABA) accreditation Address Lower Pass Rates Law Accreditation School Proposed Changesto Under current ABAstandards, alaw Alabama, weIn have experienced Two proposed changesto theAmeri- law school applicant poolwas 67,900. school inthefall of2012whenthetotal of2015enteredclass inthespring law cant pool. For example, thegraduating recent declineofthelaw schoolappli- tion inthedecliningpassrate andthe either to graduate orpassthebarexam. not admitstudents whoappear unable with therequirement that law schools cluding transfers) isnotincompliance attrition rate above 20percent (notin- buttable presumption that alaw school being circulated would establishare- possible. count for asmany ofitsgraduates as Instead, alaw schoolwould have to ac- percent ofitstotal numberofgraduates. to basepass-rate compliance ononly70 schools would nolongerbepermitted to two years.shortened Moreover, law demonstrate compliance would be modified sothatto thetimeperiod second optionwould beretained, but percent passrate requirement ofthe would eliminate thefirstoption. The 75 mittee. The firstproposed change drafted by theStandards Com- Review comments for theproposals that were and Admission to theBarhasaskedfor There appearsto beastrong correla- The second ofthetwo proposals The ABA’s ofLegal Education Section ing ones. applicants withlower-perform- placing higher-performing deeper intheapplicant poolthaninthepast, possiblyre- plicant pool). – 8.77percent declineinenrollment =4.85netdeclineinap- the declineinenrollment (13.5percent declineinapplicants cline of4.8percent adjustingfor oftheapplicant poolafter decline of8.7percent. This meant that there was anetde- and only44,481enrolled in2012,there was anenrollment 78,500. With 48,697students enrolled inlaw schoolin2011 This was a13.5percent declinefrom the2011level of implementation. posals are approved, theywillbeayear ormore away from amendments that might beoffered by theHOD. thepro- If posed amendments. The council hasthefinalsay onany concur orsendthestandards backto thecouncil withpro- sented to theABAHouseofDelegates (HOD). The HODcan are approved by thecouncil at that time, theywould bepre- posed standards at itsmeetinginOctober. thestandards If The section councilThe willreview section thecomments to thepro- letter of interest to State Bar is seeking a new executive director. Those interested should send a résumé and The Alabama State Bar is anEqual Opportunity Employer. With the upcoming retirement of long-time Executive Director Keith Norman, the Alabama 2 1 Thus, law schoolsmay bemore likelyto reach [email protected] L Endnotes .Id. 2. The Examiner, Bar 2016, June andDeferrals: Factors Defections, “Decline, Desertions, Affecting 1. Law Passing School Rates,” p. 53. Update Education debt loans was of those The average time hadeducation loans. 2016 barexam for thefirst theFebruary those taking Sixty-eight percent Sixty-eight by September 30, 2016 $119,695. of . www.alabar.org 329

T H E Alabama Lawyer 330 T H E Alabama Lawyer September 2016 License to Tell James Bond Her Majesty’s Servicewithalicensetokill. answers three basicquestions:1) What?, 2)Sowhat? and 3)Nowwhat? common ingredients. A goodstory(whether toldincourtorelsewhere) people whovoluntarilyconsume andpayforotherstorytellers’ works. moned byforceoflawto cometocourtandserveasjurorsopposed nesses anddocumentsto tellthestory. Moreover, our audiencesaresum- don’t justwriteorspeakstories–weusethe dynamicexaminationofwit- are supportedbyfactualevidence,legitimateinferences andthelaw. We boundaries andburdensofproofonourcraft. We musttellstoriesthat other professionalstorytellers,however, wehaverestrictionsthatput view but they didn’t have a “license to tell.” a license. All of those professional storytellers had a story and point of didn’t have a license. The Songwriters and poets don’t have a license. Matthew, Mark, Luke and John (007) ries or write editorials. Authors don’t have a license–they have a publisher. for entertainment. Journalists don’t have a governmental license to tell sto- other profession has that license even though they tell stories for a living or thing that has gone awry in an ordered society. Think about that license. No court. We have a “license to tell” stories, our client’s stories about some- bers of the bar, you and I also have a unique license issued by our supreme Despite thosedifferences, theelementsof whatmakesagoodstoryare We havestories,pointsofviewand By Stephen D. Heninger 1 That’s quite a broad and terrifying governmental license. As mem- was IanFleming’s characteron Federalist Papers a “licensetotell.”Unlikethose weren’t written by people with www.alabar.org 331

T H E Alabama Lawyer 332 T H E Alabama Lawyer have to engage and interact with each teller and 3) the audience. All three tion among: 1) the story, 2) the story- move that passion to the audience. storyteller and then the telling must The passion of the story must infect the successfully we meet that opportunity. common humanity will dictate how and speak in court, but our brains and bar cards give us the opportunity to rise hearts and minds of our audience. Our ally heard, felt and embedded in the teresting story that the words are actu- tell” is used effectively to convey a compelling and in- care?” or “So what?” It is only when this “license to swer to each juror’s internal questions: “Why should I The message of the story is doomed if there is no an- attention if they find the story unworthy of their efforts. responding duty on the judge or the jury to listen or pay rise and speak on behalf of our clients, there is no cor- without thisstimulation?“Nowwhat?” wouldn’t causeustoconsidersomethingimportant have someinterestinit,whathappensnextthat “why shouldIcare?”Nowthatweknowthestoryand What happenedandwhydidithappen?Sowhat– September 2016 Storytelling is a fascinating interac- While we have the right (indeed, the legal duty) to infect the story- the telling must The passion of teller and then the story must passion to the move that audience. their fellow jurors during deliberations or to their fam- the story to themselves during the trial, retelling it to interested, engaged and involved enough to be retelling fee station or over a drink with friends. If the jury isn’t as strongly as it does at the kitchen table, the office cof- die. This observation holds true in the courtroom just loan. Stories live to be retold. If told only once, they loan to the storyteller and retelling is a payment on that ences, emotions and human condition. The story is on feeling that is easily transferred to all of our experi- they must have an underlying universal message and (on the surface) they are about specific individuals, other. Stories are loans, not possessions. Even though alive and rise again to speak. actually happening in real time become the story as it took place when it was style of the story. The factual ghosts of mixed in with the pace, expression and words, messages and feelings are Telling been reduced to cookie-cutter products. nothing more than words that have recitation. with a sterile, uninteresting and simple suffocating its natural, inherent breath with our telling. We have killed it by ily/friends after the trial, it has died the stories is different. The Reciting stories makes them the analogy of agarden,theseattitudes, beliefsand their attitudes, beliefsandexperiences. Ifyouthinkof when thestoryisretoldbecause thejurybringsin However, contextgetsexpandedinthe courtroom place inacontextatthe time oftheeventsatissue. tent isthefactualrecord. Ofcourse,thosefactstook meaning. Contextisjustasimportantcontent. Con- naked dotsinthestoryuntiltheyareconnectedby ing iswhatmatters–notjustdetails.Detailsaresimply however, are more basicandeasilyconfirmed.Mean- hind suchrulesandlaws(e.g.safety, security), cause oftheirpersonalexperiences. The reasons points, butjurorsmaylooktofindholesinthem be- ties arelesslikelytohaveuniversalappeal. quirks, eccentricitiesandover-reliance ontechnicali- honesty areusuallyreliableanduniversal.Personal about everyone?Safety, security, self-respectand so universalthattheyarelikelytoconnectwithjust minds ofmosttheaudience? What assumptionsare be veryriskyandnotlikelytoexistinthehearts a risk/benefitanalysis. What assumptionsarelikelyto the story. The selectionofassumptionsmustundergo tion isthekey. Disconnectionisadeathsentenceto the transmissionofenergy will beblocked.Connec- must becompatiblewiththathard-drivenetworkor beliefs, attitudesandexperiences. The storieswetell (not certainty)thatmostofussharesomecommon tions, assumptionsthatarebasedontheprobability feeling theforcebehindthem. tivated togivethemtheirattentionandbeopen riosity andinterestthatwillcausethejurorstobemo- to identifythosepointsofreferencethatenrichthecu- the audiencetoilluminateitslikelytruth. Ourtaskis beds itselfinthepersonalexperiencesandfeelingsof persuasion ismuchmoreimpactfulbecauseitem- where tolooksotheycanseeforthemselves.Self- what wesee.Itismuchmoreeffective toshowthem true forus. We cannoteffectively forcejurors tosee interest sowecanseeforourselves. The sameholds The bestteachersshowuswheretolookandsparkan essential questions: What? So what? Now what? dience in a way that can help them answer the three beat and its message. Then we give it away to our au- is to find the client’s story. Identify its shape, its heart- to us as licensed storytellers. The meaning of our task This profound observation gives valuable instruction find your gift; the purpose of life is to give it away.” For example,rulesandlawsaregoodstarting Every storyisfoundeduponanetworkofassump- The bestteachersdonottelluswhatwemustsee. Pablo Picasso once said, “The meaning of life is to be- to all of us. A story whose “What?” carries a clear and embraced by assumed feelings and attitudes common generated by a retelling that is based upon fact and Therein lies the power of the story, a power that is laws, constitutions or courts can protect these rights. hearts of men and women.” If it does not, no rules, recognized that legal rights must connect with “the facts and the best legal precedent wins the case. He women. He did not say that the party with the most in the logical minds and rational thinking of men and once madethisremarkableobservation: attention thatcompelsaction.JudgeLeonardHand rules areimportant,buttheynotenoughtogain has beenconfirmedorrefuted.Specificdetailsand take actionorrealizethatsomethinginsideofusall nects withourhumanconditionandcompelsusto room. Bothmustbeconsidered. gives waytothecontextofitsretellingincourt- filters. The contextinwhich theeventtookplace we havetohelpthedetailsfindtheirwaythrough support inuniversalattitudesandfeelings.Inshort, frame thestoryinawaythatwillmostlikelyfind context theychoosetoapply. This iswhyweneedto each other. The contentwillbefilteredthroughthe is placed. This fertilizationisnaturaliftheywelcome experiences arethecompositeinwhichthatstory Judge Hand did not say that liberty or legal rights lie A storyisfactswrappedinemotion/logicthatcon- tution, nolaw, noCourtcansaveit.” men andwomen. When itdiesthere,noConsti- these arefalsehopes.Libertyliesinthehearts upon Courts. These arefalsehopes;believeme, hopes toomuchuponConstitutions,laws, “I oftenwonderwhetherwedonotrestour www.alabar.org of 333

T H E Alabama Lawyer 334 T H E Alabama Lawyer saying that our stories are simply bait or salt, however, you can feed a horse salt and make him thirsty. I’m not make him drink it.” There’s another side to that story– maxim, “You can lead a horse to water but you can’t the risk of swallowing it. We have all heard the old bait that the fish finds appealing to its needs and worth and cajoling a fish onto your hook. There must be bait– Stories aren’t lectures. You can’t catch a fish bystrummed lecturing by the teller and appreciated by the audience. resonates its vibrations in the chords of the facts alive without an audience. None of this matters unless it doesn’t exist without a story. Neither of them becomes story doesn’t exist without a storyteller. A storytellerbattle of stories or a battle of storytellers? It is both! add A to it (or subtract from the other sides’ version). invitesIs it a the jury to join in the narrative conversation and more about what your jury says it is. A good storytellerand why? Your story is not just what you say it is. needs,It’s their concerns, their desires, what they care about what our jurors want us to understand about them–their and what rules govern those facts. Have we forgotten want them to know, what facts are the most important resounding ending “Now what?” care?”–a story that compels taking a stand to give it a inherent answer to “So what?”, and “Why should we September 2016 We have all become good at telling juries what we Endnote show uswhowe ple whotheyare.Ortoputitmoreaccurately, itisto is nottoshowpeoplewhoyouare;itpeo- want ittodo. You mustremoveyouregofromit. Art its master. You mustdo whatitrequires,notyou McDonald wrote in his book, great reminder to all of us who are licensed to tell. Brian on the wants, needs and beliefs of the jury. I close withthese a analogies serve to remind us that the focus must be .Itisalittleweird that my barcard was issuedas “HEN-007.” 1. (ABOTA), Alabama Chapter. Bar Association andthe American Board of Trial Advocates District of Alabama. Heis apast president of the Birmingham Stephen D. Heninger “As astoryteller, youareaservantofyourstory, not James H.Hancock, district judge for the Northern of Law. Heservedasalaw clerk to Honorable gree ( lieutenant in the U.S. Army, heearnedhis J.D. de- versity of Illinois. After spending two years asa Steve Heninger earnedaB.A. degree from the Uni- are–as humanbeings.” summa cumlaude) The Golden Theme from Cumberland School : L JudicialArbiter Group congratulates JudgeKenneth O. Simonof our Birminghamoffice upon his election as ChairPro Tempore of the University of SouthAlabama Board of Trustees.

Ken Simon is a 1976 graduate of the University of South Alabama, where he served as Student Government Association president, vice president and senator, and was a member of the varsity debate team. In 1983, he was one of 13 persons selected as a White House Fellows and served his Fellows' appointment as a special assistant to U.S. Attorney General William French Smith. He is a 2007 recipient of a USA Distinguished Alumni Award. Ken Simon has more than 30 years' experience as a judge, litigator and mediator. He has served as a circuit judge in Jefferson County, the state's largest judicial district, and has developed a reputation as a skilled litigator, mediator/arbitrator, advisor to public agencies and expert in securities law. He is presently a mediator/arbitrator with the Denver based Judicial Arbiter Group, Inc. (JAG), for which he recently established a Southeastern office in Birmingham. The New Partnership Audit Procedures: Finding Our Way in theBy Stuart Dark J. Frentz and Bruce P. Ely

The Door in the Dark In going from room to room in the dark labama lawyers who are I reached out blindly to save my face trying to understand the But neglected, however lightly, to lace new partnership audit procedures scheduled to be effective My fingers and close my arms in an arc. Aafter 2017 should identify with Robert Frost. The statutes rushed A slim door got in past my guard, into enactment late last year as part of the Bipartisan Budget Act of And hit me a blow in the head so hard 20151 leave many questions unan- swered, with several gaping holes I had my native simile jarred. to be filled with guidance from the So people and things don’t pair any more Treasury Department and the IRS. And opportunities for confusion With what they used to pair with before. will multiply as Alabama and other states develop their own separate responses to the federal changes.2 Alabama Lawyer –Robert Frost The challenges posed for those of T H E us drafting partnership agreements 336 September 2016 and related ownership transfer doc- over furniture with regard to drafting a little over a year away. Partner- uments in the absence of guidance partnership or operating agreements ships can elect to opt in under the are a bit like trying to traverse a fur- while waiting for the Treasury and new rules early, although there are niture-filled room in pitch darkness. the IRS, and perhaps Congress, to not likely to be many takers.6 In this article, we’lldo first take a start turning on the lights. Congress projected the new$9.3 proce- look at what we know about the duresbillion to generate more than new audit procedures based prima- in new revenue over a 10- rily on the statutes enacted and Some Things We year period.7 Many states are con- amended late last year and the joint sidering adopting all or part of these committee’s Bluebook, which is as Know (or Think procedures for their own income tax close as we get to legislative history. codes and to enhance their budgets. Then we’ll list some of the impor- We Know) Until Arizona has already enacted partial do not will 8 nottant things we know, and 4 conforming legislation. know until regulations and other Things Change There are a couple of defined procedural guidance trickle out of terms we need to keep in mind. 3 Washington. Finally, we’ll offer a The current TEFRA audit5 are “Reviewed Year” means the tax few suggestions for what practition- repealed prospectively, and the year of the partnership under audit, ers might consider doing to avoid new rules will apply to tax years and “Adjustment Year” means the figuratively smacking their heads year in which partnership return ad- Alabama Lawyer beginning after 2017–which, as of 9 into doors in the dark or tripping the date of this publication, is only justments are finally determined. T H E www.alabar.org 337 338 T H E Alabama Lawyer based on 2016 rates. In an especially or corporations– rate of tax applicable to individuals and multiplying that by the highest adjustments as finally determined payment is computed by netting all partnership. apply to your own partners and consider how these rules will a large number of partners, should partnerships, especially those with Year. were not partners in the Reviewed Year, even if some or all of them on the partners in the Adjustment payment by the partnership will fall Year, so the financial burden of a sessment is made in the Adjustment detected during an audit. The as- underpayment” if filing errors are sess the partnership on the “imputed Budget Act requires the IRS to as- September 2016 The partnership’s imputed under- The new default rule under the Law firms that operate as i.e. , 39.6 percent partners will be bound by actions self. The partnership and all its partners or pay the assessment it- out” the assessment to the former be reducedaccordingly. ship’s imputedunderpaymentcan taxable at35percent),thepartner- for individualsoraCcorporation lower rate(i.e.,capitalgains partner thatwouldbetaxableata to atax-exemptpartneror an itemofadjustmentisallocable ners inthatyear. departed andarenolongerpart- Year, evenif A orBbothhave derpayment inthe Adjustment would havea$39,600imputedun- the Reviewed Year, thepartnership have beenallocatedtopartnerBin $100,000 ofincomethatshould have allocatedtopartner A ample, ifapartnershipisfoundto puted underpayment. determining thepartnership’s im- come orgainaredisregardedin deduction ordecreaseitemsofin- ment thatincreaseitemsoflossor netted; theportionsofadjust- terest expenseorgain)arenot regarded specialallocationofin- one partnertoanother(e.g.,adis- ments thatreallocateitemsfrom taxpayer-unfriendly twist,adjust- whether the partnership will “push assessment, settle or litigate, and dle the audit, whether to appeal the all decisions regarding how to han- authorized under the law to make son for the IRS auditor and will be (“PR”) will be the sole contact per- ered “partnership representative” stead, the new and greatly empow- member” for years after 2017. In- matters partner” or “tax matters ditional taxesdue. audit adjustmentsandpaythead- returns toreflecttheirsharesofthe for thereviewedyearfileamended reduced totheextentthatpartners puted underpaymentcanalsobe If thepartnershipcanshowthat There will be no role for a “tax 12 10 So, forex- 11 An im- or even a partner. the PR need not be an individual, having no rights to participate. And partnership audits, while (so far) taken by the PR in connection with partners. rations orestatesofdeceased dividuals, Scorporations,Ccorpo- partners, allofwhichmustbein- out onlyifithas100orfewer procedures. mitted tooptoutofthenewaudit ments backonto theReviewed shift theburden ofauditadjust- I.R.C. section 6226,whichwill called “push-out”election under underpayment bymaking aso- avoid havingtopayanimputed dures, orfailtotimelydo so,can can’ extend much grace in that regard. return. We cannot expect the IRS to tions every year, on a timely filed procedures must file opt-out elec- get out from under the new audit eligible partnership that desires to tive for one taxable year only. An regime–no opt-out. thrown irretrievablyintothenew trust, thepartnershipwillbe grantor trustoranyothertypeof garded single-memberLLCora another partnership,oradisre- the contrary, ifevenone Unless theIRSissuesguidanceto ers againstthe100-partnerlimit. must counteachofitssharehold- has anScorporationpartner, it head count. election isavailablebasedona determining whethertheopt-out corrections bill. The firststepin Treasury’s wishlistforatechnical that changeisnearthetopof mate partner, separately. We think tax deficienciesfromeachulti- IRS mustaudit,assessandcollect audit procedures,underwhichthe will fallbackintothepre-TEFRA Certain partnershipswillbeper- Thankfully, partnershipsthat Opt-out elections will be effec- t optoutofthenewproce- 16 And ifthepartnership 15 14 A partnershipcanopt Those thatoptout 13 18 partner is 17 Issued Until Guidance Is Won‘t Know Some Things We charged asdeficiencyinterest. cent higherthanisnormally returns weredue,ataratetwoper- charged fromthedateoriginal ignored. Inaddition,interestis tax attributesthatreducetaxesare taken intoaccount;adjustmentsto ments. Onlyincreases attributes causedbytheadjust- year have increasedinanyintervening by whichthepartner’s taxwould count inthatyear, plustheamount ments beenproperlytakenintoac- the Reviewed Year come taxwouldhaveincreasedin by whichthepartner’s federalin- puted bydeterminingtheamount but theamountoftaxdueiscom- ment Year (i.e.,thecurrentyear), additional taxesforthe Adjust- ment K-1isrequiredtopaythe partner whoreceivesan Adjust- of thepartnershipadjustments. A IRS thepartner’s allocableshare for theReviewed Year andtothe K-1s”), reportingtoeachpartner monly referredtoas“Adjustment then furnish“statements”(com- the audit. The partnershipmust partnership adjustmentclosingout days ofreceivinganoticefinal must makethiselectionwithin45 Year partners. The PR(wethink) I any circumstances. The new law out of the new procedures under partners will be eligible to elect trusts or other partnerships as trusts, other types of simple gle-member LLCs, grantor Whether partnerships having sin- as aresultofchangesintax had theadjust- in taxare 19 I I • sorts of practical problems. son to the IRS. This may pose all information about each such per- required to furnish identifying out, and the partnership will be 100-partner limit for electing- ship will be counted toward the indirect each person holding a direct clear. If such guidance is issued, may be willing to do so is un- to which the Treasury and IRS types of partners, but the extent afforded S corporations to other tending treatment similar to that regulations or other guidance ex- authorizes the Treasury to issue shareholders? affect Scorporations andtheir How willthenewprocedures ner shoulddoso. committee orthegeneralpart- by theboardormanagement member, amemberauthorized opt-out–probably amanager- other thanthePRshouldfilean we shouldassumethatsomeone Until guidancesaysotherwise, PR weretofileanopt-out? create aCatch-22situationif rules. Doesthisarrangement tions arecontainedinthose provisions governingPRfunc- tion isfiled,andofcourse,the taxable yearforwhichtheelec- apply tothepartnershipfor is thatthenewruleswon’t ing out? The effect ofanopt-out Will thePRbeinvolvedinopt- • imputed underpayment? to obtainamodification of its the Scorporationisapartner audited partnershipinwhich the taxesdueinorderforan file amendedreturnsandpay shareholders berequiredto Will alltheScorporation underpayment bemodifiedon Can apartnership’s imputed interest in the partner- 20 or I I I at thepartnership levelunder How willpenalties determined level betakenintoaccount? determined onlyatthepartner How willtaxeffects thatcanbe • • • structures? apply totieredpass-through How willthenewprocedures • corporation aretax-exempt? shareholders ofapartnerS the basisthatoneormore own push-outelection? either payingtaxorfilingits partnership havetheoptionof tiers, willeachhigher-tier through multiplepartnership lowed tocascadeupward If push-outelectionsareal- puted underpayment? tain amodificationofanim- lower-tier partnershiptoob- and paytaxesinorderfora quired toamendtheirreturns mate taxpayingpartnersbere- pass-through? Will theulti- guidance permitsmulti-tier modification rulesapplyif Conversely, howwillthe procedures? cessfully optedoutofthenew less ofthefactthatithassuc- lower tierpartnershipregard- push-out electionmadebya partnership-level taxduetoa nership beforcedtopaya has electedout? Will apart- the first-tierpartnershipitself is itselfapartnership? What if at thefirsttier?Iftier Will apush-outelectionstop shareholders? fects oftheadjustmentstoits portunity to“pushout”theef- the Scorporationhaveanop- be requiredtopaytax,orwill nership, willtheScorporation Adjustment K-1fromapart- If anScorporationreceives www.alabar.org 339

T H E Alabama Lawyer 340 T H E Alabama Lawyer I I I I I I I I I I I I I I I I I I inspection work for Commercial buildings, Contact: Hal K. Cain, Principal Engineer September 2016 CONSTRUCTION & ENGINEERING Cain and Associates Engineers &Constructors, Inc. I.R.C. section6226(c)(1) potential economies of scale in a Perhaps in some situations the TEFRA was enacted in 1982. that were in effect before than they would under the rules off under the new procedures and its partners would be better which an eligible partnership cult to imagine a situation in not benefits for small partnerships Will there be any incentives or tax litigation? participate inaudits,appealsor Will partnershaveanyrightsto nation bythepartnership? in theabsenceofavaliddesig- the IRSwillbeabletodesignate who canserveasPR?On Will anylimitsbeplacedon apportioned amongpartners? Forensic engineering and investigative [email protected] •www.hkcain.com Radio &Television Towers Engineering StandardofCareissues Flooding &RetentionPonds Roofing problems Fire &Explosion Assessments Air ConditioningSystems Plumbing &PipingProblems Electrical issues Toxic Sheetrock&Drywall Stucco &EIFS Sinkhole Evaluations Foundations, settlement Structural issues Construction defects Construction delaydamages Residential, & Industrial facilities. 251.473.7781 •251.689.8975 to opt out? If not, it’s diffi- EXPERTS 21 be I I the effective dateoftheBudget useful guidanceuntilwellafter possible thatwewon’t see truly dures byJanuary1,2018.Itis gear upforthenewauditproce- able guidance,reorganize and will beabletoproducework- whether theIRSand Treasury layed? Itishardtoassess Will theeffective datebede- election year. Don’t holdyourbreaththis tional technicalcorrections? Will Congresstakeupaddi- appointed PR. ing itself or one of its employees wish to solidify that role by hav- functions of the partnership may charge of the tax and accounting new procedures or the partner in weigh the disadvantages of the unified proceeding might out- I I the partners? proceeding inawaythatsuits litigation doesnotappeartobe nated PRifanaudit,appealor rug outfromunderitsdesig- partnership beabletopullthe able tochangeitsPR? Will a How oftenwillapartnershipbe Adjustment Year. Reviewed Year or thoseinthe set ofpartners,i.e.,thoseinthe duties tothepartners–andwhich extent PRswillowefiduciary guidance iswhetherandtowhat and notbyIRSor Treasury the partnershipagreementitself) be answeredinlitigation(and An importantquestionthatmust the effective date. cedures forelecting-in first priorityistodeveloppro- Act; the Treasury hassaidits before Guidance While Awaiting Think About Things toand Do I procedures into account. draft provisions taking those procedures, before trying to IRS will say about the new audit about what the Treasury and the wise to wait until more is known have to be amended, it would be agreements do not otherwise ilarly, if existing partnership or until the lights come on. Sim- simply to stay put until daylight, ards, one way to avoid injury is familiar room filled with haz- If you’re stuck in a dark and un- I ance processwillgoforward IRS haspledgedthattheguid- sional efforts inthisregard. The Treasury, IRSandCongres- low practitionerstomonitor length oftime. We urge ourfel- pected tobereleasedforsome pects oftheBudget Act isn’t ex- detailed guidanceonmanyas- decide whoyourclientis)that the prospectivePR(onceyou warning tothepartnershipand agreement immediately, witha porated intotheneworrevised these changesshouldbeincor- agreement forotherreasons, needs toamendanexisting joint venture)orifaclient poses (includinganLLCor partnership forincometaxpur- ture thatwillbeclassifiedasa templating anewbusinessven- However, ifyourclientiscon- I the majorityowners? or generalpartner(s),perhaps member, orboardofmanagers, non-actions fromthemanaging vance approvalofitsactionsor example, mustthePRseekad- pany anditspartners.For ity theywillhavetothecom- and (3)thelevelofaccountabil- curred byactinginthatrole; or liabilitiesthatmaybein- the PRagainstanyclaims,costs indemnification willbeafforded PR shouldbe;(2)whatlevelof thinking about:(1)whothenew Partnership clientsshouldbe next year. We certainlyhopeso. bill mayseethelightofday tions go,atechnicalcorrections Depending onhowthefallelec- the Budget Act provisions. back intofilllegislativegaps whether ornotCongresssteps www.alabar.org 22 341

T H E Alabama Lawyer 342 T H E Alabama Lawyer I I September 2016 POB 716 Mount Vernon, IN 47620 www.SupportMasterSoftware.com essarily hold true for the non-PR provisions, but that doesn’t nec- dard has been used for TMP cally, a gross negligence stan- a result of their service. Typi- against or suffered by the PR as claims, damages, etc. asserted indemnifying the PR against curred in that role, and bursing the PR for expenses in- PR, consider provisions reim- the attorney for the prospective Conversely, especially if you’re ally liableforthosedecisions. chances ofbeingheldperson- partners soastoreducethe reviewed andapprovedbythe may wanttheirdecisionstobe interest ofthepartners.PRs PR willhavetoactinthebest the dutiesandobligations as thePRmaywanttospecify Partners whowon’t beserving CS-41, CS-42, CS-43, and CS-47 Alabama Support Master™ [email protected] Includes Interest and Arrearage Professional Software CHILD SUPPORT Prepares and prints forms Uses Current Guidelines CALCULATION SOFTWARE Corporation FREE DEMO For Alabama 812-781-1422 Since 1989 Calculator I I I ship under the new procedures. and interest) paid by the partner- any taxes (including penalties ble for their allocable shares of former partners) to be responsi- should require the partners (and Most partnership agreements cussion above). PR todothesethings(seedis- think itbestnottodesignatethe dicates otherwise,though,we the election.Untilguidancein- necessary informationandfiling mining eligibility, gatheringthe will beresponsiblefordeter- specific aspossibleaboutwho ship iseligibletooptout.Beas able yearinwhichthepartner- opt-out provisionsforanytax- Consider includingmandatory to include her? Reviewed Year–which happens those who were partners in the the proposed assessment to the decision whether to push out new PR, and later is faced with former partner is appointed the partners. For example, what if a currently are partners, or former flicts of interest for PRs who mits. Consider potential con- the extent relevant state law per- the former or current partners–to ing the PR’s fiduciary duties to Thus, consider expressly limit- pecially minority partners). duciary duty to the partners (es- selfish motives and violated a fi- they feel the PR acted out of nership. They may sue the PR if by the PR on behalf of the part- who are bound by actions taken tion under the new rules, but participate in audits and litiga- partners who lack any right to poses. I.R.C. section6241(4) capital account andbasispur- located amongthepartners for nership-level taxesshould beal- Give considerationtohow part- 23 Endnotes Bruce P. Ely. All rights reserved. ration ofthisarticle. his helpfulcommentsintheprepa- entity guru,ScottE.Ludwig,for Huntsville partnerandbusiness ated. The authors thank their client withwhichtheyareaffili- any otherorganization orany Section, the Alabama StateBaror sarily theirlawfirm,the ABA Tax of theauthorsonlyandnotneces- I 1. Section 1101 ofPub. Section L.No. 114-74(Nov. 2,2015) 1. © July5,2016.StuartJ.Frentz/ All commentshereinarethose members, LLCs andoperating agreement aswell. ship agreements butthat isintended to include we’ll andpartner- refer partnerships to partners, (herein, the Act”). “Budget Throughout thisarticle join in. state departmentsofrevenue and thestatelegislatures when theIRSandCongressact visited periodically, asand audit proceduresneedtobere- agreement dealingwiththenew visions intheirpartnership you decidewhothatis)pro- Finally, warnyourclient(once tal accounts. not properlychargeable tocapi- puting itstaxableincomeand that arenotdeductibleincom- penditures ofthepartnership section 704(a)(2)(B),i.e.,ex- expenditures describedinI.R.C. be decreasedbyallocationsof that apartner’s capitalaccount come taxregulationsrequire counting rulesunderfederalin- nondeductible. Basiccapitalac- similar agreementarealso under anindemnificationor that paymentsbyapartner procedures. The Bluebookadds ship underthenewaudit quired tobemadebyapartner- be allowedforanypaymentre- provides thatnodeductionshall L 2. Amy Hamilton “Stakeholders Mobilizing State Re- 11. I.R.C. section 6225(c)(3) and (4). year shall be liable for any such penalty, addition sponse to New IRS Partnership Audit Regine,” TAX to tax, or additional amount.” NOTES TODAY (May 9, 2016). 12. I.R.C. section 6225(c)(2). 22. Amy S. Elliott, “IRS to Give More Weight to JCT’s 3. Donald Rumsfeld’s widely-publicized response to a 13. I.R.C. section 6223 requires only that the PR be a View of Partnership Audit Rules, “TAX NOTES TODAY question at a DoD news briefing on February 12, person with a substantial presence in the United (JUNE 27, 2016). 2002 seems apropos here: “As we know, there are States. The statute provides that the PR “shall have known knowns; there are things we know we the sole authority to act on behalf of the partner- 23. In an effort to reflect the “freedom of contract” know. We also know there are known unknowns; ship under this subchapter.” principle articulated by Delaware and other states, that is to say, we know there are some things we effective January 1, 2017, the Alabama Limited Li- do not know. But there are also unknown un- 14. Procedures for the election-out are to be estab- ability Company Law and Alabama Limited Part- knowns–the ones we don’t know we don’t know. lished by the Treasury Secretary. As of this writing, nership Law will allow members and partners to And if one looks throughout the history of our no information on what these procedures might expand, restrict or eliminate certain duties in a country and other free countries, it is the latter cat- look like is available. written limited liability company agreement or egory that tends to be the difficult one.” All three written partnership agreement; however, neither a categories of knowledge, or lack thereof, are pres- 15. Technically, the count is based on the number of K- limited liability company agreement nor a partner- ent with regard to the new partnership audit pro- 1s the partnership is required to furnish to its part- ship agreement may eliminate the implied con- cedures at this point in time. ners for the taxable year. I.R.C. section tractual covenant of good faith and fair dealing. It 6221(b)(1)(B). should be noted that a number of Delaware deci- 4. As of early July 2016. At this time, the only official sions have admonished practitioners to take care sources of information are the statutes them- 16. I.R.C. section 6221(b)(1)(C). in drafting agreements under the “freedom of con- selves–Subchapter C of Chapter 63, Subtitle A, tract” principle, as the agreements themselves may consisting of I.R.C. sections 6221 through 6241– 17. I.R.C. section 6221(b)(2)(A). The special rules for create additional and unintended duties. Also, du- and the General Explanation of Tax Legislation En- counting the number of shareholders for S corpo- ties which arise under federal statutes may not be acted in 2015, prepared by the staff of the Joint ration eligibility do not apply (e.g., counting hus- subject to the contractual freedoms provided by Committee on Taxation, JCS-1-16, March 2016 band and wife and certain members of a family as the Alabama Limited Liability Company Law and (herein, the “Bluebook”). References in this article one shareholder). Instead, the number of K-1s the Alabama Limited Partnership Law. to I.R.C. sections 6221 through 6241 are to the S corporation is required to furnish to its share- new provisions that are due to become effective holders for the taxable year count toward the 100- for taxable years beginning after December 31, partner limitation. Some S corporations may be 2017. required to furnish many more than 100 K-1s. See Stuart J. Frentz, S Corporation Corner: Predicting 5. Originally enacted by the Tax Equity and Fiscal Re- How the New Partnership Audit Rules Will Affect S Stuart J. Frentz sponsibility Act of 1982, or “TEFRA.” Corporations and Their Shareholders, J. PASSTHROUGH ENTITIES, Mar.-Apr. 2016, at 27. Stuart Frentz is a partner 6. Id. with Bradley Arant Boult 18. IRS Chief Counsel William J. Wilkins warned atten- Cummings LLP in the Birm- 7. Section 1101 of the Budget Act did not change any dees at the Texas Federal Tax Institute that, “I ingham office, where he has substantive tax rules of Subchapter K, so this rev- wouldn’t be confident of your ability to elect out if practiced federal tax law enue projection must indicate Congress’ belief that you had a partner that was a disregarded entity for more than 30 years. every year about $1 Billion–or likely much more– unless and until there’s guidance or a legislative Frentz has been a columnist for the CCH due in federal income taxes from partners under change confirming that.” Amy S. Elliott, “Wilkins covering Journal of Passthrough Entities current law goes uncollected due to ineffective Noncommittal on Impartial Partnership Audit S corporation tax developments. audit procedures. Changes,” TAX NOTES TODAY (June 14, 2016).

8. Amy Hamilton, “News Analysis: Arizona Official 19. I.R.C. section 6226(b) and (c). Dives Deep into Aspects of New Partnership Audit Law,” Tax Analysts Doc. No. 2016-11284 (June 7, 20. For a more detailed discussion of issues for S cor- Bruce P. Ely 2016). porations under the new audit procedures, see Stuart’s article cited in fn. 17 above. Bruce Ely is a partner with 9. I.e., the year in which a partnership adjustment Bradley Arant Boult Cum- becomes final under a court decision, the year in 21. This section provides that notwithstanding a push- mings LLP in the Birming- which an adjustment is made at the partnership’s out election requiring Reviewed Year partners to ham office and is co-chair initiative by filing an administrative adjustment pay taxes and interest due as a result of taking of a new ABA Tax Section request, or the year in which a notice of final part- their shares of partnership adjustments into ac- SALT task force on the new nership adjustment is mailed. I.R.C. section count, “any penalties, additions to tax, or addi- partnership audit rules. Ely is a graduate 6225(d). tional amounts shall be determined as provided of the University of Alabama School of under section 6221 [at the partnership level] and Law and of the New York University

10. I.R.C. section 6225(b)(2). the partners of the partnership for the reviewed School of Law’s Graduate Tax Program. Alabama Lawyer T H E

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T H E Alabama Lawyer This argument is particularly persuasive in the bank- scope agreements raise serious concerns as to the attor- ruptcy context because attorneys’ fees have increased ney’s compliance with other unreasonablerules, thereby rendering a since the enactment of the Bankruptcy Abuse Preven- limited scope representation under the tion and Consumer Protection Act of 2005 (BAPCPA).5 circumstances. Attorney fees after BAPCPA increased as much as 24 a. informed Consent Concerns percent for Chapter 13 filers and–notably–48 percent for Chapter 7 debtors.6 BAPCPA’s enactment likely In general, “[a] lawyer may limit the scope of repre- informed consent 13 caused such cost increases because debtors must file sentation if . . . the client gives .” more documents than before,7 the means test may re- In order for a client to give informed consent, the at- quire complicated calculations and the statute made attorney must disclose a wide array of information.14 torneys responsible for errors in a debtor’s schedule. Bankruptcy attorneys face an ethical dilemma: the “Just as insurers charge higher premiums for greater bankruptcy landscape isreally unusually complicated and risks and increased work, attorneys have charged technical. Can a client give informed consent? higher fees to offset their new risks.”8 As filing bank- A debtor may wrongly assume that excluded serv- ruptcy becomes more expensive, fewer debtors can af- ices–like representation in adversary proceedings–are ford an attorney; limited scope representation has been unnecessary, or that there is little risk to foregoing proposed as a solution to this problem. representation on those matters. The ethical concerns Unbundling provides certain benefits to attorneys as are heightened when one considers that the limited well. Discrete task representation ostensibly creates scope agreement “. . . comes at the suggestion of an an opportunity for lawyers to expand their practice attorney who often benefits from and has superior and market to lower-income clients.9 Lawyers may be knowledge of the possible ramifications of excluding able to provide assistance to clients they might other- certain services.”15 Will attorneys fully disclose the wise not have the time or inclination to fully repre- risks of limited representation, including the de- sent.10 These opportunities allow attorneys to collect creased probability of the debtor receiving a dis- additional fees where none existed (although, on the charge? In a related vein, the pressure of needing to other hand, litigants who would have hired a full-ser- file bankruptcy might cause a debtor to accept what- vice attorney may now choose to only hire an attorney ever terms are presented to her. The reliance on a for one or two tasks, thereby actually lowering the lawyer’s guidance is therefore heightened in bank- fees an attorney collects). ruptcy proceedings. A debtor’s ability to provide valid, informed consent is highly suspect considering a client’s likely inability to grasp the materiality of a service and the consequences of its omission.16 The Challenges of B. Competency Concerns

Unbundling Bankruptcy An attorney must provide competent representation to her clients.17 This duty is not waived by entering ServicesAs a general rule, unbundled service agreements into a limited scope agreement. must comply with all applicable ethical and procedural Competent representation in the context of bank- rules. In bankruptcy, however, attorneys may face diffi- ruptcy means that an attorney must help meet the culty rectifying a limited scope agreement with specific 18 Bankruptcy debtor’spro objective se of obtaining a discharge, and yet Coderules governing bankruptcy practice. The largely litigants are far less likely to receive a does not mandate that an attorney fully represent discharge.19 a client, but most local rules nationally signal that an Can representation be considered competent if it fails should 11 attorneyAlabama Rulescomprehensively of Professional represent Conduct her client. to achieve the client’s objectives for obtaining represen- The allow an tation (i.e. obtaining a successful discharge)? Some attorney to limit the scope of representation if the courts have already answered “no”–competent repre- 12 agreement is reasonable under the circumstances. sentation precludes lawyers from picking aspects of AlabamaLawyers Lawyer should decline to offer unbundled legal serv- bankruptcy cases to work on and neglecting others.20 T H E ices in the practice of bankruptcy because limited The issue remains to be squarely addressed in Alabama. 346 September 2016 C. diligence Concerns Whereas normally for debtors. In 2007, the Consumer A lawyer may face difficulty rec- Bankruptcy Projectpro se found that the onciling the duty of diligence21 an attorney must percentage of litigants rose under a discrete task representation after the passage ofpro BAPCPA, se but scheme. The duty of diligence–in investigate good the percentage of litigants who received a successful discharge the civil litigation context–is some- 23 what relaxed when it comes to fil- grounds to support fell. Shockingly, “[t]he entire ing pleadings. Whereas normally an propost-BAPCPA se increase in negative attorney must investigate good a pleading, outcomes is attributable to grounds to support a pleading, at- cases in which the debtors were alleged to have made technical er- torneys who are only representing attorneys who are 24 their clients in a limited capacity rors.” Bankruptcy is simply too complicated for unrepresented have the ability to rely onunless the only representing client’s communications debtors to navigate and discharges there is reason not to do so.22 Less their clients in a are being withheld on the basis of diligence is required of an attorney procedural, technical errors instead drafting a civil pleading as an un- limited capacity of on the merits of the filing. bundled service. Not only do the debtors them- In bankruptcy proceedings, how- have the ability to selves sufferpro se if they litigate func- ever, attorneys are bound by local tionally , but the courts rules of the particular bankruptcy prothemselves se suffer. Debtors who are Federal Rules of Bank- rely on the client’s or who only received assis- ruptcycourt, the Procedure U.S. Bank- and the tance with documents are more ruptcy Code Fed. R. Bankr. communications likely to miss deadlines, neglect Proc . Neither U.S. Code . 9011(b) nor 11 unless legal responsibilities and experience there is difficulties applying both procedural §707(b)(4)(C), governing pleadings, 25 allows for a relaxation of the duty of and substantive law. Bankruptcy diligence for bankruptcy attorneys reason not to courts are likely to be increasingly 22 offering unbundled services. This burdened because “[s]elf-repre- may render a wide swath of limited do so. sented [or largely self-represented] litigants consume a disproportional scope representation infeasible; for 26 example, it might defeat the purpose of unbundling for amount of staff and judicial time.” an attorney to exercise diligence and research all as- Lastly, the widespread implementation of limited pects of a limited client’s petition if the attorney is get- scope representation may hamper the administration ting paid a nominal amount to simply prepare a of justice because it has a disparate effect on debtors schedule. Limited scope bankruptcy attorneys, held to versus creditors. Creditors are unlikely to forego out- Federal Rules of right, complete representation, but debtors in financial aBankruptcy higher standard Procedure of diligence byBankruptcy the Code and the , must distress are looking for the least expensive route. be careful to satisfy their duty of diligence. Overall, debtors may receive worse judicial outcomes d. administration of Justice Concerns and creditors would remain unaffected. The practice of discrete task representation there- The administration of justice in bankruptcy courts fore gives rise to very serious ethical concerns in the would suffer if litigants choose to forego outright rep- context of bankruptcy practice. Empirically, it is diffi- resentation for representation in a limited capacity. cult to rectify professional rules with a constrained First, limited scope representation may increase over- representation agreement; although jurisdictions are all access to the bankruptcy system, but it would also increasingly recognizing the permissibility of un- pro se bundling, findings that bankruptcy attorneys followed likely increase the number of functionally liti- 27 Alabama Lawyer gants. This would likely not lead to favorable outcomes the ethical rules in doing so are rare. The merits of T H E

www.alabar.org 347 8. MacArthur, 25 Emory Bankr. Dev. J. at 434. limited scope agreements may render the practice 9. Henry A. Callaway, Alabama’s New Limited-Scope Representation Rules, 73 Ala. helpful and even necessary in some areas of law, but Law. 262, 262 (2012). bankruptcy attorneys should proceed with caution orL 10. McLain, 71 Ala. Law at 402. altogether avoid it. 11. Carrie A. Zuniga, The Ethics of Unbundling Legal Services in Consumer Cases, 32- Endnotes OCT Am. Bankr. Inst. J. 14, 14 (2013). 1. Alabama Access to Justice Commission, Frequently Asked Questions (Oct. 16, 2015, 12. Alabama Rules of Prof’l Conduct R. 1.2(c). 06:30 AM), http://alabamaatj.org/wp-content/uploads/2013/08/Limited-Scope- 13. Alabama Rules of Prof’l Conduct R. 1.2(c)(emphasis added). Representation-for-Lawyers-Color.pdf. 14. The Restatement (Third) of Law Governing Lawyers offers the following guidelines: 2. J. Anthony McLain, Opinions of the General Counsel: The Unbundling of Legal Serv- (i) a client must be informed of and consent to any “problems that might arise ices and “Ghostwriting,” 71 Ala. Law. 401, 401-2 (2010). related to the limitation,” 3. Alabama Rules of Prof’l Conduct R. 1.2 cmt. (ii) a contract limiting the representation is construed “from the standpoint of 4. McLain, 71 Ala. Law. at 402. a reasonable client,” 5. Lois R. Lupica & Nancy B. Rapoport, Best Practices for Limited Services Representa- (iii) if any fee is charged, it must be reasonable in light of the scope of the rep- tion in Consumer Bankruptcy Cases 49 (Final Report of the ABI National Ethics Task resentation, Force, 2013). (iv) changes to representation me after an unreasonably long time after be- 6. Lois R. Lupica, The Consumer Bankruptcy Fee Study: Final Report, 20 Am. Bankr. ginning representation must “meet the more stringent tests… for post inception Inst. L. Rev. 17 (2012). contracts or modifications,” and 7. Andrew P. MacArthur, Pay to Play: The Poor’s Problems in the BAPCPA, 25 Emory (v) the limitation’s terms must be reasonable in light of the client’s sophistica- Bankr. Dev. J. 407, 419 (2009)(BAPCPA newly requires a debtor to file, among tion level and circumstances. other things, a credit counseling certificate, a document explaining potential in- Restatement (Third) of Law Governing Lawyers § 19 cmt. c. (2000). creases in expenses or income in the next year, a copy of all documents outlining any money obtained 60 days before the petition was filed and a federal income 15. Zuniga, 32-OCT Am. Bankr. Inst. J. at 14. tax return before the creditors’ meeting).

With the upcoming retirement of long-time Executive Director Keith Norman, the Alabama State Bar is seeking a new executive director. Those interested should send a résumé and [email protected] September 30, 2016 letter of interest to by .

The Alabama State Bar is an Equal Opportunity Employer. Alabama Lawyer T H E

348 September 2016 16. Lois R. Lupica & Nancy B. Rapoport, Best Practices for Limited Services Representa- 26. The Center on Court Access to Justice for All, Discrete Task Representation (Oct. 16, tion in Consumer Bankruptcy Cases 49 (Final Report of the ABI National Ethics Task 2015, 06:45 AM), http://www.ncsc.org/microsites/access-to- Force, 2013). justice/home/Topics/Discrete-Task-Representation.aspx. 17. Alabama Rules of Prof’l Conduct R. 1.1. 27. Zuniga, 32-OCT Am. Bankr. Inst. J. at 15. 18. Zuniga, 32-OCT Am. Bankr. Inst. J. at 14. 19. Rafael I. Pardo, An Empirical Examination of Access to Chapter 7 Relief by Pro Se Debtors, 26 Emory Bankr. Dev. J. 5, 23 (2009)(outlining a study of debtors in the Professor Gary E. Sullivan Western District of Washington–chosen because of its almost four million people in 19 counties, both rural and metropolitan–which found that 15.0 percent of Gary Sullivan serves as associate professor of law post-BAPCPA pro se litigants failed to receive a discharge whereas only 1.04 per- in residence at the University of Alabama School of cent of post-BAPCPA represented clients failed to receive a discharge). Law. His practice and scholarly interests focus on bankruptcy, commercial law and contracts. Profes- 20. Zuniga, 32-OCT Am. Bankr. Inst. J. at 15. sor Sullivan has presented papers and served on 21. Alabama Rules of Prof’l Conduct R. 1.3. panels at academic and continuing education con- 22. Alabama Rules of Civil Procedure R. 11(b)(“In providing such drafting assistance, ferences in several states. He has been a member of the Alabama the attorney may rely on the otherwise self-represented person’s representation State Bar since 1996. of the facts, unless the attorney has reason to believe that such representation is false or materially insufficient”). 23. Angela Littwin, The Affordability Paradox: How Consumer Bankruptcy’s Great Weak- ness May Account for Its Surprising Success, 52 Wm. & Mary L. Rev. 1933, 1957. Jessica M. Zorn 24. Id. Jessica Zorn is a 2016 graduate of the University 25. Drew A. Swank, In Defense of Rules and Roles: The Need to Curb Extreme Forms of of Alabama School of Law and works with Farris, Pro Se Assistance and Accommodation in Litigation, 54 Am. U.L. Rev. 1537, 1548 Riley & Pitt LLP in Birmingham. She sat for the (2005). July 2016 Alabama bar exam.

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www.alabar.org 349 350 T H E Alabama Lawyer (Photograph by FOUTS COMMERCIAL PHOTOGRAPHY, Montgomery, [email protected]) September 2016 FEBRUARY 2016 BAR EXAM

OFSTATISTICS INTEREST For detailed bar exam statistics, visit https://admissions.alabar.org/exam-statistics. satisfy all admission requirements as prescribed by the Bar for the period November 2, 2015 through May 4, 2016. To be certified for admission, a candidate must *Statistics of those individuals certified to the Supreme Court of Alabama for admission to the Alabama State Certification statistics* ExamPassageBar by school diso ihu xmnto Rcpoiy...... 10 Admission withoutExamination (Reciprocity)...... 9 ...... Admission by Transfer ofUBEScore 113 Admission byExamination...... 0.0percent ...... Miles CollegeofLaw 26.7percent ...... Birmingham SchoolofLaw 45.8percent Faulkner UniversityJonesSchoolofLaw...... 47.2percent Cumberland SchoolofLaw...... 92.3percent ...... University of Alabama SchoolofLaw 42.3percent ...... Bar ExamPassPercentage 116 ...... Number passingexam(includesMPREdeficientand AL course deficient) 274 Number sittingforexam...... Rules Governing Admission to the Alabama State Bar . Adam Eugene Emerton Donnetta Kamilah Ellis Evan JulianEberhardt Jack MarkDubose,Jr. Valerie ProchazkaDray Karl ElliottDover Jacqueline DesireeDodd Rodney JamaelDavis Megan Trenise Crenshaw Nathan R.Cordle Matthew DavidCone Laura ElizabethCollins David PaulCoates Christine Alexandra Clolinger Alain HaddadClarke Justin GregoryClark Colin StuartClark Jacqueline LeaChilders Mary RuthCampbell Geoffrey FelixCalderaro Melissa Cain Mechelle R.Buksar-Musgrove Johana Alexandra Bucci Tamra ElaineBryant Reginald RenardBrown Sylvia Bowen Jonathan MichaelBlocker Christopher Austin Blackwell Michelle MorrisBernstein Bryan PatrickBenson Andrew ChanningBendall Chadwick Thomas Barnett Jeremy InnocentBanks Yurie Yeoul Bae Jaqueline Aranda Osorno David McCormack Allen S E E T T I M D A 6 1 0 2 G N I R P S R A B E T A T S A M A B A L A Alessio CarloLarrabee Caroline ElisabethLarochelle Andrew SethLadores Charlotte Anne Klenke Timothy CharlesKingston Jerry LeeKilgo David Andrew Kidd Michael ScottKelly Victor Herng-ChinKang Jamie LeighJordan Ainka M.SandersJackson Phoenix Iverson Matthew RossHuffstutler Walter RichardHudgens Elizabeth Ann Hollie Michael RossHolden David Austin Holcombe Ryan KeithHicks Frederick SchultzHecht Brian DouglasHayes Alyssa Lynn Hawkins Paula Angelique Harris Clayton Hardin Seth Andrew Hansard Jordan Ali Handley Seve PowersNeSmithGunter Veronica Guerra Kristina Ashley Granger Mark Andrew Gable Kent William Frost David LeeFlaherty Amber MichelleFite-Morgan Kevin DavidFinley Andrew DanielFarley Mark Allen English Nadeau Neil EverettSenkbeil Daniel Thornton Seawell Stephanie Renee’ Schuman Russ MichaelSchmidtberger William JosephSchiffman, II David JeremySchatz Andrew JohnScarborough John EdwardRogers James PhillipRoberts Joseph MichaelRich,Jr. Russell BakerRegister Edward DonaldReed Robert BradfordReasonover Jamison Thomas Real TaRonda MarieRandall Caroline MariePruitt Ethan Picone Darla LaShayPersall Lynn EllenOsborn Dawn MicheleOliver Alice Ann Nix Haley ElizabethNamie Shari’ Vernae Morris Laci Anna Moore Tina LouiseMills Jonathan BainMetz Brooke Menschel Allen PorterMendenhall Matthew PaulMcVay Alexander DouglasMcSwain Samuel RobertMcCord,Jr. Madelyn KayMauldin William MitchellMann Harris MarshallLong Joshua Alexander Leggett David Lee Sarah Dowdy Young Jamila MashavuE Young Angela Beth Young Karen Michelle York David Arthur Yergey, III Paul McLaurin Woodfin, III Katherine George Woodfin Micah West Rodney Wayne Wells Kacey Leigh Weddle Willie Christopher Weaver Ellise Montrell Washington Elizabeth Jane Walbom Christina Vice Vineyard Caroline McKibbenUpchurch Camalyn Sarena Turner Sara Nicole Tower John Isaac Thomason Amanda Katelyn Terry Megan Johnson Templeton Sean PatrickSullivan Nicolas MiguelStanojevich James LawrenceSpinks Keri MichelleSpiker Allen EvansSorrell James HaydenSneed Caitlin EvelynMargaret William Wayne Smith,Jr. Burt RichardSkiba Michael RaySimpson Michael ShawqiShunnarah Jacob Thomas Shillig Carl RaySewell,III Smitherman www.alabar.org 351

T H E Alabama Lawyer 352 T H E Alabama Lawyer John Isaac Thomason Y L I M A F E H T N I S R E Y W A L Rebecca Green Thomason (1984) James Lawrence Spinks September 2016 Samuel Robert McCord, Jr. (2016) andSamuelRobert and Henry Agee (1973) Admittee andmother Admittee andfather Admittee anduncle McCord (1976) (2016) and (2016) William W. Smith, Jr. Christine Clolinger Admittee andstepmother Lisa FrostFraser(1989) Kent Frost Leslie Fields (1995) Admittee andfather Admittee andaunt Bill Smith(1966) (2016) and (2016) and (2016) and Alexander McSwain Joseph M. Rich, Jr. Evan Eberhardt Herbert James Lewis(1974) Admittee andfather-in-law Douglas McSwain(1995) Jan Eberhardt(1980) Admittee andfather Admittee andfather (2016) and (2016) and (2016) and Y L I M A F E H T N I S R E Y W A L Mary Ruth Campbell Smitherman Megan C.Carpenter(2008)andGabe(2009) Admittee, father, sister andbrother-in-law triathletes are encouraged to participate in Tri The Gulf! participants and experienced triathletes in mind. All lawyers who are a scenic venue for this event. The triathlon is designed with first-time other triathlons held in Mobile County and Dauphin Island provides Dauphin Island, kicking off at the Isle Dauphine Club. There are no “Tri the Gulf” triathlon, which will be held Saturday, October 15 professionon standpoint. The foundation is organizing and will host the bile area in a unique, healthy, fun manner–at least from a legal creasing positive public awareness of the legal profession in the Mo- The Mobile Bar Foundation is approaching fundraising and in- (2016), Harvey B. Campbell (1977), For more information, go to trithegulf.com. www.alabar.org 353

T H E Alabama Lawyer 354 T H E Alabama Lawyer September 2016 LA ASSIST M A R G O R P E C N TA S I S S A R E Y AW L A M A B A L A Recovery Retreat Second Annual Laura Calloway, Service Programs director, and Mark Moody, assistant one another. Ithinkwedefinitelyaccomplished this! use disorder. Italsoprovidesatimeoffellowship andcamaraderiewith students whomaybestruggling withamentalhealthissueorsubstance committee andgiveassistancesupporttoattorneys, judgesorlaw by discussing the function and interaction of these two state bar programs. general counsel in the Office of General Counsel, who began the retreat bers toreceivetrainingenhancetheirability serveeffectively onour near Oneonta. This isanopportunityforourvolunteercommitteemem- covery Retreat”inMaythemountainsatbeautiful CampSumatanga This year we had another outstanding lineup of speakers, including The Alabama Lawyer Assistance Programhelditssecondannual“Re- By Robert B. Thornhill By Robert They were followed by Lisa Holman, area director Our courageous and self-motivated committee with the American Foundation for Suicide Prevention, members are to be congratulated for the good work and Mary Turner, board member and attorney, who they do throughout the year. All of their work is com- addressed the tragic reality of suicide in our legal pletely voluntary and there is no monetary reward for community, signs to look for that may indicate suici- their efforts. However, the satisfaction that comes dal ideation and ways to intervene. from working with attorneys who are trouble, seeing The next day, Elizabeth Mullins, licensed clinical them accept the help they need and witnessing the social worker, discussed mindfulness therapy, a psy- transformation that comes from genuinely working a chological technique that teaches how to be “in the program of recovery is priceless. moment” and how to avoid getting caught up in a This work can be very challenging, and there are cycle of negative thinking and the depressed mood times when the support and assistance we offer is not that these thoughts can create. accepted. There is also the tragic truth that some people Mullins’s talk was followed by Dr. Joseph Schu- with substance abuse disorders or mental health issues macher’s discussion on the topic of the high incidence such as depression cannot or will not do what is neces- of “co-occurring disorders” among professionals who sary in order to get better. The outcomes are not always present for residential treatment for a substance use good ones, as anyone who has had a family member or disorder. Dr. Schumacher, a clinical addiction psy- loved one with addiction can attest. For those who truly chologist, demonstrated how a significant proportion surrender and become willing to take the suggestions of those with addictive disorders also suffer from one of the “winners” in recovery, though, the outcome is or more additional mental health maladies, such as bright. We get to see careers saved, families reunited depression, anxiety or bipolar disorder, stressing that and lives transformed. These are the memories that sus-L all of these conditions must be treated to experience tain us all and motivate us to continue to reach out. an effective and lasting recovery. The two-day event also included an ALAP commit- Robert B. Thornhill, MS, LPC, director, Alabama Lawyer Assistance Program, (334) 517-2238 or (334) 224-6920, tee meeting, a foundation meeting and a 12-step [email protected] speaker meeting. Alabama Lawyer

Retreat attendees enjoy sharing a meal at Camp Sumatanga. T H E www.alabar.org 355 356 T H E Alabama Lawyer E pro bono service during the preceding year. devoted 50 or more hours of their time to ognizing Alabama lawyers who generously Court held their first annual reception rec- tice Commission and Alabama Supreme Month last fall, the Alabama Access to Jus- clinics around the state. During Pro Bono lawyers to volunteer their time at legal ice, as well as a host of opportunities for couraging and recognizing pro bono serv- Pro Bono Month is filled with activities en- September 2016 Megan B. Comer, Mobile Eric D. Coleman, Bessemer Lula M.Cole, Leeds Patricia Clotfelter, Birmingham Abigail H.Clarkson, Vestavia J. Craig Campbell, Mobile Joel T. Caldwell, Montgomery James A.Byram, Jr., Montgomery Bruce A.Burttram, Vestavia Huntsville Dana R.Burton, Robin L.Burrell, Birmingham H.Brewster,Henry Jr., Mobile Coby M.Boswell, Huntsville Lisa W. Borden, Birmingham Elizabeth L.Blair, Birmingham Rebecca A.Beers, Birmingham April Bauder, E. Hoover Kellie S.Avery-Tubb, Hoover Melanie M.Atha, Birmingham Jennifer M.Anderson, Birmingham Adams,Samuel Montgomery John M.Aaron, Alabaster Pro Bono Attorneys Honoredat of Pro Bono in October. Alabama’s takes part in a National Celebration ach year, the Alabama State Bar Alabama SupremeCourt John F. Janecky, Mobile Frank S.James, III,Birmingham Jeffrey B. Irby, Huntsville Herndon Inge, III,Mobile Jennifer L.Howard, Birmingham Joshua L.Hornady, Birmingham Hickman,S. Scott Tuscaloosa Felicia D. Harris-Daniels, Birmingham Lorrie L.Hargrove, Birmingham Ginger W. Hamilton, Helena Linda Hall, Birmingham William P. Hahn,Birmingham Matthew Hoover A.Griffin, James B. Birmingham Griffin, Honora M.Gathings, Birmingham Linda A.Fiveash, Birmingham Royal C.Dumas, Montgomery Melissa L.Doggett, Birmingham Patricia A.Doblar, Hoover Sydney Huntsville G.Dean, Catherine P. Crowe, Birmingham Maureen Cooper, K. Huntsville cult toachievejustice. sis inthecourtsmakesitevenmorediffi- help. Healsonotedhowthefundingcri- torneys tostepforwardprovidethat the ever-increasing needfor Alabama at- gate thejusticesystemwithouthelp,and come Alabamians whostruggletonavi- recognized theplightofmanylow-in- his remarks,ChiefJusticeRoyMoore members andmanyofthehonorees.In judges fromaroundthestate,commission tended byanumberofthejustices,other the Alabama SupremeCourt,andwasat- The eventtookplaceintherotundaof Ashley N.Penhale,Ashley Montgomery George R.Parker, Montgomery W. Ryan Myers, Birmingham Harold D. Mooty, III,Huntsville Carolynn H.Moore, Birmingham Louis M.Montgomery, Birmingham John B.D. Milledge, Birmingham T. Anderson Mears, II,Birmingham Kelly F. McTear, Montgomery Mitchell D. McNaylor, Harvest J. McLure,Samuel Montgomery Allen W. May, Jr., Tuscaloosa Huntsville Kimberly B. Martin, Birmingham Martenson, De E. Charles J. Lorant, Vestavia J. Flint Liddon,III,Birmingham Pamela Kilgore, L.Bowlin Mountain Brook Priscilla L.Kelley, Hoover Loring S.Jones, III, Vestavia Andrew M.Jones, Mobile Jamie A.Johnston, Montgomery Leon Johnson,Alabaster K. hours beforenextyear’s event. the criteriaandreporttheir2015probono recognizing-pro-bono-work/) (http://www.alabamaatj.org/i-can-help/ gible tovisitthecommission’s website encourage anyattorneywhomaybeeli- are alsodeservingofthisrecognition,and believe thatmanymore Alabama lawyers cess toJusticeCommissionandthecourt ganizations thatassistthepoor. The Ac- low-income peopleandtononprofitor- honored fortheirexemplaryserviceto The 88attorneyslistedbelowwere Ricardo A. Woods, Mobile F.Donald Winningham, III,Birmingham Richard R. Williams, Mobile Amber M. Whillock, Birmingham E. Martin Weinberg, Shannon Reilly K. Ward, Birmingham Patrick J.R. Ward, Mobile Andrew P. Walsh, Birmingham Abigail P. Van Alstyne, Birmingham William Uemura, K. Huntsville Ida L. Tyree-Hyche, Birmingham Renee E. Thiry, Mobile Tiffin M. Taylor, Huntsville T. ShaneSmith, Vestavia L. Thomas Ryan, Jr., Huntsville Ian D. Rosenthal, Mobile Wesley Clyde Redmond, Birmingham Tiffany P. Rainbolt, Birmingham William F. Prosch, Jr., Birmingham Honza JanFerdinand Prchal, Birmingham Anderia B. Powers, Birmingham Staci M.Pierce, Birmingham to review L M ings, universities andpubliclibraries. buildings suchascourthouses, lawschools,statecapitolbuild- United Statesforthepastyear andahalf,showinginpublic document’s enduring legacy. Ithastraveledthroughoutthe democracy, givesvisitorsthechance tolearnmoreaboutthe how itcametoberecognized asthefoundationofmodern trating theMagnaCarta’s impactthroughoutthe centuriesand gress collections,aninterpretivevideoandothermaterials illus- which theycreated.” fluenced theFoundingFathersofourcountryandrepublic learn moreabouttheMagnaCarta,adocumentwhichgreatly in- excited tohavethisexhibitandinviteeveryonecome hibit inourbuilding,”actingChiefJusticeLyn Stuartsaid.“Iam through Friday, and there is no charge for admission. ter Avenue. The exhibit will be open from 8 am to 5 pm, Monday in the rotunda of the Heflin-Torbert Judicial Building at 300 Dex- versity are sponsoring the exhibit which will run October 11-31 Liberty at Thomas Goode Jones School of Law at Faulkner Uni- & Public Policy Studies and the Blackstone Center for Law and to host the exhibit “Magna Carta: Enduring Legacy 1215-2015.” have selected the Heflin-Torbert Judicial Building in Montgomery Library of Congress, the Library of Congress and its Law Library the American Bar Association’s Standing Committee on the Law The exhibit,featuringimagesofobjectsfromLibraryCon- “The SupremeCourtof Alabama ishonoredto hostthisex- The Supreme Court of Alabama, the Federalist Society for Law Display ComingtoHeflin-Torbert JudicialBuilding “Magna Carta:Enduring arking the 800 foundation of the rule of law in modern democracies, ter sealed by King John of England, recognized as the Legacy 1215-2015” th anniversary of the Magna Carta, a char- ning website,www.loc.gov . in itsreadingroomsonCapitol Hillandthroughitsaward-win- The LibraryservestheU.S.Congress andthenationbothon-site 158 millionitemsinvariouslanguages, disciplinesandformats. institution andthelargest libraryinthe world,holdsmorethan mation worldwide at countries and provides online databases and guides to legal infor- world’s largest collection of law books and other resources from all items in various formats, the Law Library of Congress contains the lection of law for future generations. With more than five million global legal community and to sustain and preserve a universal col- the Supreme Court, other branches of the U.S. government and the mission to make its resources available to members of Congress, of law. public understanding around the world of the importance of theschools, rule provides continuing legal education and works to buildgrams that assist lawyers and judges in their work, accreditsABA law works to improve the administration of justice, promotestions pro- in the world. As the national voice of the legal profession,is one of thethe largest voluntary professional membership organiza- formation willalsobeavailableathttp://judicial.alabama.gov . and StateLawLibraryat(800)236-4069or(334)229-0578.In- of Congress and its Law Library. Standing Committee on the Law Library of Congress, the Library The LibraryofCongress,the nation’s oldestfederalcultural The Law Library of Congress was established in 1832 with the With more than 400,000 members, the American Bar Association For moreinformation,contactthe Alabama SupremeCourt The exhibit is a joint project by the American Bar Association www.loc.gov/law/. www.alabar.org L 357

T H E Alabama Lawyer 2016 AWARD RECIPIENTS

President Copeland and Penny Davis Kate Musso and President Copeland

Award of Merit Recipients This award recognizes outstand- awarded an honorary doctorate of Following graduation, she clerked for ing constructive service to the legal laws by Birmingham-Southern Col- the Hon. Walter P. Gewin, senior judge th President Copeland and Judge Burt Smithart profession in Alabama. lege where he served as chair of the of the 5 Circuit Court of Appeals. She board of trustees. recently retired as the associate direc- Mike Atchison retired last year He is a member of the American tor at the Alabama Law Institute and Judicial Award of after 47 years as a trial lawyer. The Board of Trial Advocates, Birming- has taught at the University of Ala- Merit Recipient last 20 years of Atchison’s practice ham Bar Association, Alabama bama School of Law since 1984. The Judicial Award of Merit is presented to a judge were concentrated on complex busi- State Bar, American Bar Association who is not retired, whether state or federal court, trial ness and commercial litigation in- and Alabama Defense Lawyers As- Katharine “Kate” Musso is a or appellate, and is determined to have contributed sig- cluding numerous securities cases. sociation and is a fellow of the Ala- graduate of Harvard College and nificantly to the administration of justice in Alabama. Atchison was also co-outside gen- bama Law Foundation and the Harvard Law School. She is a certified Judge Burt Smithart of Union Springs has been eral counsel to a New York Stock Ex- American College of Trial Lawyers. fraud examiner and certified anti- the presiding circuit judge for the 3rd Judicial Circuit change-listed corporation, a money laundering specialist. Musso (Barbour and Bullock counties) since 1999. His profes- frequent lecturer at legal seminars Penny Davisgraduated from the advised financial industry clients on sional achievements include co-chair of the Judicial on a variety of topics and author/co- University of Alabama with a B.S. in regulatory matters and compliance. Education Committee for the Alabama Circuit Judges author of several published articles. education and her M.A. in guidance She retired from Jones Walker LLP at Association and Alabama Judicial College. He was the A graduate of Birmingham- and counseling and her J.D. During the end of 2015. She and her hus- 2009-2010 recipient of the Judge Jerry M. White Southern College and the Cumber- law school, she was the student work band now spend more time in the Award for Judicial Excellence. Judge Smithart received land School of Law, Atchison was editor for the Alabama Law Review. garden with their rescue dogs. his undergraduate degree and his Juris Doctorate from the University of Alabama. Following law school, he practiced in Union Springs until he was elected to his Jeanne Marie Leslie Service Award current position. This award recognizes exemplary service others is an integral part of his life and His community service involvement includes coach- to lawyers in need in the areas of substance practice. ing youth sports, helping at the food pantry, serving abuse and mental health and is presented on educational committees and numerous leader- by the Alabama Lawyer Assistance Pro- Robert W. “Squire” Gwin, Jr., a Birm- ship roles within his church. gram Committee. ingham native, is a graduate of Howard Judge Smithart is married to Elizabeth College (now Samford University) and the Smithart, also a member of the John Brinkley is a north Alabama Cumberland School of Law. His practice has state bar. John Brinkley lawyer who is active in his local bar, been that of a practitioner with a focus on where he was elected as a bar commis- elder law. He is a founding member of the sioner and serves as the Madison County Alabama Lawyer Assistance Program Volunteer Lawyers Program chair. He is in- (ALAP), which has been in existence since volved in several committees/task forces 1998, and has also served as chair of ALAP with the Alabama State Bar. Service to for several years. Alabama Lawyer

T H E Squire Gwin 358 September 2016 Recipient Scruggs, Jr., Award William D. “Bill” from the9 bama State Bar. asthebarcommissioner He served D. “Bill” Scruggs, Watson withtheAla- active became County AssociationDeKalb Bar at theurging of William private oflaw practice withhisfather. law school, hereturned to Payne Fort andentered the ofLawSchool onscholarship. Upon graduating from in 1971.He thenattended theUniversity ofAlabama various banks. local and businessmatters includingtherepresentation of handled civilandcriminaltrials, domesticrelations State Bar. tooutstanding anddedicated theAlabama service Scruggs,Bill former state barpresident, to recognize Award (2002-2003). and theAlabama State President’s Bar Foundation and fellow of the American Bar Foundation, asafellow oftheAlabama Bar ors includeselection Trustees for theAlabama Law Foundation. Legal hon- bama Law Foundation andisamemberoftheBoard of as thePersonnel Committee oftheAlabama State Bar. ontheFinanceHe serves andAudit Committee aswell Commission since 2012. and aschairoftheDisciplinary Commission (1994-2000;2001-2003;2006-present) (2011-2012; 2013-2014),memberoftheDisciplinary 2001; 2011-2014),vice president ofthebar ing asamemberoftheExecutive Committee (2000- inseveralserved withthebarinclud- othercapacities missioners in2006andisstillserving. Watson has from 1993-2003.He returned to theBoardCom- ofBar After serving two yearsAfter asthepresident serving ofthe He graduated from Auburn University withhonors For nearly40years, W.N. “Rocky” Watson This award was created in2002honorofthelate Additionally, Watson was thepresident oftheAla- th Judicial CircuitJudicial from 1986-1987andagain Rocky Watson and family has of NCBE’s Multistate Bar Examination Committee. aminers (NCBE)and former chairandcurrent member and chairofthebar’s Commission. Disciplinary Commissioners,of Bar Alabama State vice Bar president Examiners, amember oftheAlabama State Bar’s Board inthefirm’spracticing Alabama offices. and personaldevelopment programs. in 2008and2011. honored withtheAlabama State President’s Bar Award country. Exemplary Service to the Profession Presented inRecognition of President’s Award raphers and trial technicians to clients throughout the States, providing more than 100 court reporters, videog- vately-owned court reporting companies in the United erates Freedom Reporting, which is one of the largest pri- and managed it for them for six years. She owns and op- firm and sold that firm to a consolidator in the industry has been a court reporter for 37 years. She co-founded a years of leadership and entrepreneurial experience and President’sBar Award in2008and2011. throughout thecountry. videographersporters, andtrialtechnicians to clients the United States, providing re- more than100court largest companies in privately-ownedreporting court operated Freedom whichisoneofthe Reporting, points in-between. He andhiswife, Mickey, owned and ranging from Africa, Ghana, to Korea, Seoul, South and inBirmingham. porter re- asacourt practicing andstarted Reporting, of Court HeBirmingham. thengraduated from Lippert’s College degree inbusinessfrom theUniversity ofAlabama at University ofAlabama inHuntsville. He obtainedaB.S. Turner’s “Lawyers Render Service.” lowing memberswhobestexemplify theASBmotto, He ispastchair oftheNational Conference Ex- ofBar aschairoftheAlabamaBoyd Board ofBar hasserved David Boyd involvedShe isactively inthecommunity, legalfield She andherhusband, thelate Mike Turner, were Mickey Turner The Turners were honored withtheAlabama State He took more than11,000depositionsinplaces This isbeingawarded posthumouslyfollowing Mike President Copeland haschosento recognize thefol- passing onApril 8,2016. Turner attended the Mike and Mickey Turner is a partner at LLP, &Bingham Balch is apartner is a business owner with more than 30 of the Alabama Defense Lawyers Association. of Trial Advocates and a member of the Board of Directors Open Meetings Act. He is a member of the American Board instrumental in the process leading to the passage of the line. The Alabama Legislature has recognized him as being media clients, and now supervises a statewide media hot- counsel for the Alabama Press Association and other open government. He has served for years as general ticularly matters involving First Amendment rights and editor, he has been involved in media law since 1980, par- Stakely where firminMontgomery heisashareholder. one year, law beganpracticing withtheRushton Bailey ofAlabama forfederal law District clerkintheMiddle board oftheCumberland Law asa Review. After serving at Samford University where ontheeditorial heserved SEC honors. He attended theCumberland ofLaw School scholarship baseballplayer whoreceived Academic All- with adegree injournalism,DennisR.Bailey as chairoftheBVLP Private Bar. AssociationBar Volunteer Lawyers’ Program andserved the Commissioners’ Award from theAlabama State Bar. tion’s Peter Award. Perlman Service In2006,hereceived of Americaandhasbeenpresented withtheassocia- bama State Bar. He isafellow oftheLitigation Counsel Lawyers Association, intheAla- andhasbeenactive He isaformer president oftheAlabama Defense American College of Trial Lawyers andalsoassecretary. Advocates. ontheBoard ofRegents He ofthe served Lawyers andanadvocate oftheAmericanBoard of Trial argue before themonseveral occasions. areCourt lessfrequent now, hehashadtheprivilegeto though oral arguments before theAlabama Supreme founding memberofLightfoot Franklin White LLC. Al- the American Bar Foundation.the AmericanBar dent oftheAlabama Law Foundation andafellow of Rules ofCivil Procedure. He isafellow andformer presi- bama Supreme Court’s Committee Advisory onthe Alabama Law Institute andasamemberoftheAla- Committee, ontheExecutive serves Committee ofthe He is ofAlabama’s District chair oftheMiddle History Dave Boyd, President Copeland and Sam Franklin A former newspaper reporter, cartoonist and magazine Prior to graduating from Auburn University in1975 He currently ontheboard serves oftheBirmingham Franklin isafellow intheAmericanCollege of Trial Samuel H.Franklin Samuel is anative ofBrewton anda www.alabar.org was a 359

T H E Alabama Lawyer 360 T H E Alabama Lawyer Committee ontheAlabamaRulesofEvidence , amem- Alumnus Award.Distinguished He was to reporter the tion’s Faculty Outstanding Award andtheSam W. Pipes Alumnus ofthe Year Award, theStudent Associa- Bar Teaching Award, theJacksonville State University Alumni Commitment Association Outstanding to Professor Upson Sims ofLawHenry from 1987to 2006. of thelaw schoolfrom asthe 1984to 1987andserved deanandprofessoracting oflaw in1982.He was dean He ofLaw joinedtheUniversity ofAlabama School as astheJ. RussellMcElroylast served Professor ofLaw. 10 years at theCumberland ofLaw School where he sonville State University. Professor taught Gamble for niston ofJack- after joiningthebusinesslaw faculty andaLL.M.degree from University. Harvard the Coif) the AlabamaLaw Review from theUniversity ofAlabama (where on heserved degree from Jacksonville State University, J.D. degree guished service in the advancement of professionalism. ism Award McLain Professional- J. Anthony “Tony” September 2016 He received theUniversity ofAlabama National He withLybrand, practiced &HamnerinAn- Sides Professor Charles W. Gamble This award is given to recognize members for distin- ber oftheAlabama Pattern Com- Instructions Jury Tony McLain and Prof. Charles Gamble mittee Civil andamemberoftheCivil Justice Reform Working Committee. Professor Gamble istheauthor ofseveralGamble and was to elected Order of books andnumerous law review articles. received hisB.S. one ofits “Women ofDistinction.” ored Alabama, Inc. by ofSouthern Scouts theGirl as and Professional Women’s Foundation andwas hon- Women’s Academy ofHonor by theAlabama Business sponsibility, criminal law and appellate advocacy. of Law, Judge Yates teaches evidence, professional re- Diversion Program. Pre-Trial andMisdemeanor Court Drug Misdemeanor with thecooperation attorney, ofthedistrict thefirst County,gomery where shecreated andimplemented, Yates judgeinMont- court asadistrict alsoserved four years asthefirstfemale presiding judge. Judge herlast ofCivilthe Alabama Appeals Court andserved ofLaw.of Alabama School ence degree, herM.A.andJ.D. from theUniversity been admitted to theschool. mission asasenior, thesecond woman ever to have meritedversity herad- ofAlabama Law Department Kelly’s ontheentrance performance exam at theUni- mitted to oflaw thepractice inAlabama. In1907, Award Maud McLureKelly Judge Sharon Yates (photo byEugene R. Verin) Judge Judge Yates was into inducted theAlabama Currently an associate professor of law at Jones School Judge Yates was thefirstwoman on to elected serve Judge Sharon Yates Maud McLure Kelly was thefirstwoman to bead- obtained herbachelorofsci- or activities conducted in a particular year. inaparticular conducted or activities nize thework barassociations oflocal for theprograms Recipients Achievement Awards Local Bar tion is Scott Holmes with President Copeland. Accepting for the Tuscaloosa County Bar Associa- ation is Royal Dumas with President Copeland. Accepting for the Montgomery County Bar Associ- tion is Bill Alverson with President Copeland. Accepting for the Covington County Bar Associa- Mackey with President Copeland. Accepting for the Mobile Bar Association is Pete This award was created intheearly1990sto recog- in needaround thestate. tantly theincreased provision to those oflegalservices of Alabama’s Pro Celebration Bono andmore impor- Program stronger andresulted innational recognition Conversations held around the state as a result. Social Return on Investment study and the Community Public Service Committee. Rasco was involved in the She served as vice chair and chair of the Pro Bono and the ABA and Rasco also served as chair of the task force. velop a CLE program that served as a national model for served as vice chair of the task force in an effort to de- as chair of the Law School Involvement Committee. She on the first Pro Bono Celebration Task Force and served case referrals through the program. Rasco was placed Alabama Industries for the Blind, as well as accepting gram, initially setting up a wills clinic at the Talladega Rasco took her first VLP case, there was no looking back. private practice in Talladega County. From the time State Bar Volunteer Lawyers Program in 2006 while in fice in Huntsville, became involved in the Alabama Accepting for Carly Calhoun is Glory McLaughlin Al Pat Clotfelter,Vreeland Award Lisa Borden and President Recipient Copeland Jeanne Dowdle Rascoand President Copeland Volunteer Lawyers Program ProBonoAwards Recipients Her leadershiphasmadethe Volunteer Lawyers She became more and more involved in the pro- Jeanne Dowdle Rasco, Copeland Cassandra Adams and President with the City Attorney’s Of- educational workshops to aboutthebenefitofmediation inform thecommunity andavailability offree confidential services. ter/family mediation to curriculum assistseniorcitizens resolution withconflict andtransitional agingissues;andconducting Peer Mediation Program; withtheAlabama Cooperative partnering System Extension to develop mediation acommunity cen- workingmediation to with thecourts; Tarrant Foundation Bar andtheBirmingham Schools City to launchtheResolve to Solve schools needingassistance to resolve disputes arisingbetween students, parent-teacher issues, student-teacher, etc.; providing Program, whichprovides to students mediation inSamford services University’s resident halls;providing to mediation services free and confidential mediation services to the greater Birminghamhelped 75 community.clients. Additionally, These services as havethe director also saved of the the Cumberland courts untold Community hours. Mediation Center, Adams has trained volunteersMediation Award to Recipient provide Pro developed underherleadershipandoffered bonoservices by thecenter include theSamford Residential Life Mediations Thanks to Cassandra W. Adams’ 100 contracts withmunicipalitiesinthestate. State ofAlabama altogether, abandoningmore than racket.” ultimately Correction the Judicial left Services a their practices extortion sanctioned “judicially CorrectionJudicial inanorder Services, that called anditsprivatethe municipalcourt probation company, Shelby County Circuit of enjoinedthepractices Court having finesandfees ofdozen ofclients dismissed. The succeeded and inshuttingdown themunicipalcourt debtors’ withitsmunicipalcourt prisoninconnection ofHarpersville,against theCity Alabama for running a rights inAlabama’s prisonsystem. Their litigation class plaintiffs inlitigation involving violations ofcivil the Birmingham Volunteer Lawyers Program. adoption, probate and consumer credit cases referred by These civil matters have included numerous divorce, vice and litigation on behalf of indigent Alabamians. The majority of these hours have been devoted to civil ad- more than 20,000 pro bono hours over the last five years. bono hours during 2015 and the firm has contributed expanding itspro bonoprogram. attorneytime, partner-level to developing and abama that devotes ofthetimeafull- themajority Berkowitz inBirmingham Firm/Group Award Recipient Baker hasalsorepresented Donelson individualand More than 50 Baker Donelson lawyers contributed pro Baker DonelsonBearmanCaldwell & efforts, more than 180 hours of pro bono mediation assistance was provided last year, which is theonlylaw firminAl- vant leader. and indoingsoexemplifies what itmeansto beaser- larly goesabove andbeyond what isexpectedofher and awillingnessto dowhatever isneeded. Sheregu- grams, shealways shows upwithasmileonherface the Public Interest Institute’s events andpro bonopro- years oflaw school. andpro bonowork service duringherfirsttwonity houn hascontributed more than75hoursofcommu- Project Homeless Connect and Wills for Heroes. Cal- Clinic, Habitat Prison Reentry for Humanity Wills Clinic, budsman Program, Veterans’ Legal Assistance Clinic, fered through thelaw school. pro innearlyevery of- bonoproject ular participant Interest Student Board. Since then,shehasbeenareg- organized Dayvoluntary by ofService Alabama’s Public orientation program even began,shesignedupfor a since herfirstday oflaw school. Before herfirst-year ofLaw,bama School volunteer hasbeenanactive Law StudentAward Recipient with President Copeland Not onlyissheaconsistent andreliable presence at She hasvolunteered withtheLong-Term Care Om- , astudent Calhoun atCarly theUniversity ofAla- www.alabar.org 361

T H E Alabama Lawyer 362 T H E Alabama Lawyer Nicholas JosephCervera Carroll Sam Benjamin William Whit Cardwell, Jr. James MarshallCampbell Richard Fletcher Calhoun Byrne, Jr.David Bryson Charles R.Butler, Jr. CarpenterBilly Burney Clermon Ovell Burkhalter Buettner Arthur Robert Charles Allen Brock Bruce Boynton Carver BluesteinJoseph Sidney Wayman Jere Blackshear Frank Lee Bell Jr.George Lamar Beck, Walter Lewis Barnett Eberhard Erich Ball William HughAtkinson Jere ArmstrongHenry John Powers Adams 50-Year Members September 2016 Anthony Theodore Giattina James William Gewin Clifford Foster, III Eugene MarkEzell James Harold Evans Frederick Alexander Erben Fredrick Terrell Enslen, Jr. LeonMichael Edwards Gerard JohnDurward Driggers Oland Robert James HarrisCrow, III David Woolley Crosland, III Rufus HagoodCraig Allen Edward Cook ColeCharles DuBose Herbert William Cohen John DanielClements Charles Tyler Clark D.Michael Chappelle Thomas Lee Jones IngeJohnstoneDouglas James RogersJenkins John Hollis Jackson,Jr. Jackie Isom O’Neal William Lee Irons James MelvinHolmes Marguerite JonesHill Tony HarlanHight Ray Herring Jerry Travis Woods Hardwick William HugerHardie, Jr. Warren Levington Hammond Ronald Terry Halfacre Leon Halcomb Larry William Levert Green Philip Louis Green Edward Duke Glenn Claude William Jr. Gladden, Robert Murphy McGehee Robert John Fred McDuff Lee McCurley,Robert Jr. Markstein, III Daniel Harry Duncan Young Manley Yancey Davis Lott, Jr. BoydenDon Long, Jr. Thomas Malcolm Linder, Jr. Joseph J. Levin, Jr. Clayton LeavellBarry John NallLeach, Jr. Earle Forrest Lasseter William Cyrus Lanham, Jr. LaneRichard Donald Bill T. Kominos William Collins Knight, Jr. John David Knight Edward J. Kirst Vincent Fonde Kilborn,III Warren Josephson John Tipton Roach,Jr. Edward Lawrence Ramsey Clarence Powell Glenn George Jewel Porter Clarence PorchJerry Charles Neal Pope Wesley Pipes Earl RogersPeyton Jack Franklin Norton Dan Franklin Nelson Claud Neilson Dent Morris Bland Harvey Leonard Kenneth Moore Jack William Monroe, Jr. Charles Money Stewart Walter Moebes Michael Craig Miller William Melton Dudley McLeod, Marvin III Henry McLauchlin, Jr.Philip Ben Lynn McGuire Gourley Thomas Claude McGregor Leslie Stephen Wright, Jr. Lowell Asher Womack James Stanley Witcher, Jr. Taylor Dovetion Wilkins, Jr. Malcolm Wayne Wheeler Hugh Samuel Welch HowardLarry Warren Lanny Sterling Vines Kinch Morgan Varner, III Charles Medford Thompson Everette Ted Taylor Stewart Joseph Grier William Wayne Smith Roy Jr. L.Smith, James DanielSmith William Mayfield Slaughter James Middleton Sizemore, Jr. Charles Edgar Sentell Claiborne Porter Seier William Alton Sanders William Allen Sanders Ellis Leon Sanders JacksonRussell, Sr.Robert Thomas Lee Rountree Casemaker®* Cain &Associates Engineers Bradford Health Services Bain &Associates Reporting Court South, Inc. Attorneys Insurance Mutual of the Alacourt.com™ Alabama Family Trust ABA Retirement Funds Program®* Copeland Franco PA &Gill Screws Bradford Health Services & BinghamBalch LLP of South, the Inc. Attorneys Insurance Mutual Alacourt.com™ SILVER Regions Financial Corporation Lawyers Section In-House Counsel&Government GEICO®* Relations Section EthicsElections, &Government GOLD Litigation Section ISI Alabama* Support Services Freedom –Freedom Reporting Litigation PLATINUM S R O S N O P S D N A S R O T I B I H X E PCA HN-O OOUR TO THANK-YOU SPECIAL A The Alabama State Barthanks our exhibitors and sponsors Annual MeetingSponsors Annual Meeting&LegalExpo *Denotes an Alabama State Bar Member Benefit Provider for continued their support and generosity. Federal Court Practice Section Practice Federal Court Law Section Elder Gentle Turner Sexton &Harbison LLC Dispute Resolution Section JusticeCriminal Section Cain &Associates Engineers ArantBradley Cummings Boult LLP Appellate Section Practice Law &Justice, Inc. Alabama Appleseed Center for BRONZE Legal Directories* Legal LawPay®* ISI Alabama* pany, LLC Insurance Com- Planning and Service Reporters, Inc.Court Henderson &Associates Support Services Freedom –Freedom Reporting Litigation Young Lawyers Section Wilmer PA &Lee White Arnold &Dowd P.C. Regions Institutional Trust Property,Real Probate and Trust Section Pileum Corporation MyCase* Leadership Forum Section Health Law Section Jones of School Law Faulkner University, Thomas Goode WatsonCory PC EXHIBITORS Zarzaur Mujumdar &Debrosse LLC Workers’ Compensation Law Section William T. Coplin, Jr. LLC Stone Granade &Crosby PC Spy4Rent Cumberland of School Law Samford University, Rubio PC Law Firm Oil, Gas and Mineral Law Section NPC Benefits* Consulting,MD Legal LLC McCallum, Methvin &Terrell PC Maynard PC &Gale Cooper Martindale-Hubbell LLC* LocalLawyers.com, LexisNexis® Sports Law Section Intellectual Property, Entertainment & pany, LLC Insurance Com- Planning and Service Reporters, Inc.Court Henderson &Associates Hare Wynn Newell &Newton LLP GILSBAR Spy4Rent Pileum Corporation MyCase* Medical Consultants Network® Consulting,MD Legal LLC Martindale-Hubbell LLC* LocalLawyers.com, Linear Investigative Services LexisNexis® www.alabar.org 363

T H E Alabama Lawyer 364 T H E Alabama Lawyer Mary Jane Oakley and her brother, Michael Oakley. Winners of most annual meetings attended are Samuel and Jim. President-elect Cole Portis takes abreakwith daughter Emme and sons WEDNESDAY September 2016 June 22, 2016 The heat and humidity couldn’t dampen the spirits of the Family Night Party. PHOTO HIGHLIGHTS David Skinner, Allison Skinner and MarkMoodykick-start the 2016 Annual Meeting! ANNUAL MEETING Past presidents arestill appreciated! the big smiles! Maybe Cassandra Adams’s boais the reason for on the hotel veranda. Attendees relax and enjoy a“Mindful Movement” Tom Heflin visits with plenary speaker Mike House. THURSDAY June 23, 2016 Robert Bailey. Between Black and White Bill Broome and Terrie Morgan get their copies of are for families, too. annual meetings his daughter prove Mike Stewart and annual Bloody Maryand Mimosa Reception. Attendees, including Elizabeth Smithart, enjoy the autographed byauthor The Diversity Reception is fun for everyone… and his wife. …Including “young-at-heart” Malcolm Wheeler www.alabar.org 365

T H E Alabama Lawyer 366 T H E Alabama Lawyer Dunson and Anil Mujumdar panelists Shane Smith, Hope Cannon, Tamula Yelling, Kendall “Diversity” CLE moderator Augusta Dowd (third from left) with shooter awareness training. his very popular interactive workshop on active Cooper Shattuck thanks Chance Corbett (left) after September 2016 Section Silent Auction bygetting her bid number. Acting Chief Justice Lyn Stuart supports the Women’s “AJ” Joseph McCallum, Doug McElvy, Alva Caine, Bill Clark and Rich Raleigh. Back row: Phil Adams, Tom Methvintice and Sonny Hornsby, Fred Gray, Johnny Owens and Larry Morris. Middle row: Mark White, Jim Pratt,Enjoying Phillip their annual get-together are past presidents, front row, left to right, Boots Gale, Sam Crosby, Jus- show off their matching “accessories.” President Copeland and son Albert Everyone enjoyed listening to The WingNuts with lead singer District Judge Alan Furr. June 24, 2016 FRIDAY grandson Jack dance. Past President Doug McElvy watches sons Hall and Albert. are past President Lee Copeland with wife Jessica and Getting their ducks in arow after the Grand Convocation plenary speaker Mike House chat Saturday morning. Past President Sam Crosby, attorney/author Liz Huntley and President Cole Portis that one important piece of advice. Soon-to-be past President Lee Copeland gives soon-to-be her extraordinary efforts during the past year. President Copeland’s legal assistant, recognizing Rich Raleigh presents a plaque to Michelle Mosley, SATURDAY June 25, 2016 Presidential Reception. Music provided bythe Sean Dietrich Jazz Trio was enjoyed at the Executive Director Keith Norman. Enjoying alaugh and looking forward to the future arePresident Lee Copeland and 2016-17 President Cole Portis Presidential Reception honoring Mark Debro and his wife at the Keith Norman seems to enjoy his new rocking chair while watching www.alabar.org his “swan song” annual meeting video at his last as executive director. 367

T H E Alabama Lawyer 368 T H E Alabama Lawyer September 2016 [email protected] Hughston Nichols at [email protected]. upcoming events, any contact ofourexecutive committee membersorParker Miller gram.com/asbyounglawyers. book.com/ABSyounglawyers, https://twitter.com/absyounglawyers the new section leadership will serve the young lawyers in this state well. officers and committee members have exciting things planned for this year and I know montgomery, Leslie Pescia, Zac rogerTurner, Varner Jeremy glassford, Brett Holsombeck, Jameson Hughston, ainka Jackson, Carol come the following new members to the Executive Committee this year: ryan, scott sasser, Julia shreve, miland simpler mcadory, rachel miller, Wyatt montgomery, Hal mooty, amy nation, nathan Crow, Beau darley, Lisha graham, Harris Hagood, morgan Hofferber, Janine Chris Burrell, Joel Caldwell, rachel Cash, aaron Chastain, megan Comer, Emily for more information. The section will be in good hands with the newand slate meeting of exceptionalofficers: people from around the state to contact a committeeany servant-minded member young lawyers interested in getting involved in shipstate in barthe activitiesYLS has been both a rewarding and challenging experience,the opportunity and I encourage to serve on the YLS Executive Committee for the past nine years. Leader- identify those young lawyers who are interested in participating in ASBthe andstate YLSbar’s activities. fiscal year. Becoming an opt-in section has allowed the YLS leadership to we are hopingto 1,000for surpass thisupcoming baryear. CLE. Beach This pastyear, we saw more than700young and lawyers jointhesection , theaward-winningCLEs Conferences Pre-Law minority obtain CLE credits and to network with other young lawyers from around the state. provide valuable opportunities to serve the legal profession and our communities, to Be sureBe to keepupwiththe YLS through oursocialmediaplatforms at https://face The YLS Executive Committee includes shreverobert , treasurer (Mobile) (Montgomery) , secretary miller rachel Lee Johnsey, vice president (Birmingham) Parker, president miller (Montgomery) This is my last column as YLS president and I thank my firm, Hare Wynn, for giving me We are an opt-in section, which means you must join our section at the beginning of We have anotherbigyear plannedforwhichwillincludetheiron Bowl thesection If you are a young lawyer, please join our section. We are constantly making efforts to For more information ongettinginvolved inthe YLS orhelpingoutwithany ofour Evan allen, Jesse anderson, Lance Baxter, E T A D P U S L Y and danielle starks and and ourannualOrange Kimberly Waldrop and/or https://insta . And we wel- Joe aguirre, . The L 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- . 369

T H E Alabama Lawyer 370 T H E Alabama Lawyer L L L September 2016 suspensions status Transfer inactive to disability notices gregory Lee attorney Case Birmingham gregory • Status Inactive Transfer to Disability Notice ishereby given gordon, schadt to Elizabeth • Notice ishereby given to Lesa greene Chandler, • Notice ishereby given to Barnhart, Jason michael • Notices No. 2016-615] Counsel requesting Case betransferred status. inactive to disability [Rule 27(c),Pet. Alabama State Barinresponse to apetitionsubmitted ofGeneral to theOffice order 26,2016order based upontheApril ofPanel Board ofthe IoftheDisciplinary 26, 2016,by order ofAlabama. oftheSupreme Court enteredThe supreme court its Proceduretus pursuant to Rule27(b), AlabamaRules ofDisciplinary , effective April result inasuspensionofherlicense. [CLE No. 16-705] ucation requirements for 2015.Noncompliance withtheMCLE requirements shall this publication to come into Continuing compliance Legal withtheMandatory Ed- sion’s order to show causedated May 12,2016,shehas60days from thedate of Commis-and whosewhereabouts arethat pursuant to unknown, theDisciplinary a suspensionofherlicense. [CLE No. 16-695] requirements for 2015.Noncompliance withtheMCLErequirements shallresult in lication to come into Continuing compliance Legal withtheMandatory Education order to show causedated May 12,2016,shehas60days from thedate ofthispub- Commission’swhose whereabouts arethat pursuant to unknown, theDisciplinary sult inasuspensionofhislicense. [CLE No. 16-692] tion requirements for 2015.Noncompliance withtheMCLErequirements shallre- publication to come into Continuing compliance Legal withtheMandatory Educa- sion’s order to show causedated May 12,2016,hehas60days from thedate ofthis Commis-and whosewhereabouts arethat pursuant to unknown, theDisciplinary S E C I T O N Y R A N I L P I C S I D was transferred sta- inactive to disability who practiced inAthenswho practiced and who practiced inBirmingham who practiced who practiced in who practiced Tuscaloosa Tuscaloosa attorney • Suspensions pre-condition of reinstatement. [ASB No. 15-623] dered to make restitution to the complainant as a ulent, forged or meaningless documents. Cowart was or- have known the scheme was predicated upon plainly fraud- ment was forthcoming, even though he knew or should peatedly assured the complainant the return on his invest- himself and others upon the direction of his client, and re- to Cowart’s trust account. Cowart disbursed the funds to ments regarding the validity of the transaction, wired funds complainant, relying on Cowart’s involvement and his state- investment scheme wherein he defrauded his client. The ted that he allowed his trust account to be used in a sham 4.1, 1.16 (a) and 8.4 (a) and (g), 2016. In ASB No. 2015-623, Cowart violated Rules 1.2 (d), the practice of law in Alabama for 180 days, effective May 6, letter of interest to State Bar is seeking a new executive director. Those interested should send a résumé and The Alabama State Bar is anEqual Opportunity Employer. With the upcoming retirement of long-time Executive Director Keith Norman, the Alabama donnis Cowart [email protected] Ala. R. Prof. C was suspended from . Cowart admit- Montgomery attorney • Gadsden attorney • 2016. [Rule 20(a), Pet. No. 2016-838] that the summary suspension be dissolved on June 10, Disciplinary Commission granted the petition and ordered tioned for dissolution of the summary suspension. The patrick subsequently submitted a written response and peti- a written response concerning a disciplinary matter. Fitz- tive June 8, 2016, for failing to respond to formal requests for the Disciplinary Commission of the Alabama State Bar, effec- marily suspended from the practice of law in Alabama by tlement in which the third hadparty an interest in his trust failed to deposit or preserve the portion of the client’s set- securedparty by his fee in a specific matter. Thereafter, he R. Prof. C olated Rules 1.15(a), (b), (c) and (n) and 8.4 (a) and (g), effective May 1, 2016. In ASB No. 2014-1035, McWhorter vi- pended from the practice of law in Alabama for 42 months, . McWhorter obtained an advance from a third by September 30, 2016 david Keith mcWhorter Joseph Lee fitzpatrick, Jr. . was sus- www.alabar.org was sum- Ala. 371

T H E Alabama Lawyer 372 T H E Alabama Lawyer September 2016 (Continued from page371) referral service asB Lawyer Join the comingled hispersonalfundswithclient fundsinhistrust (e) and(n)8.4(a)(g),Ala.R.Prof. C. complaint was filed. failedto refund fees theunearned McWhorter until abar hearing. After theclient terminated therepresentation, for whichhewas hired, andfailedto appearat theclient’s thelegalservices communicate withhisclient orperform of legalfees into histrustaccount. Thereafter, hefailedto failedto deposita$1,100advance paymentC. McWhorter 1.4, 1.15(a),(b), (e)and(n)8.4(a)(g),Ala.R.Prof. to disburse to the third itsparty funds. account, to notify the third ofparty receipt of the funds or In ASBNo. violatedIn Rules1.15(a), 2015-1379McWhorter ASBNo. violatedIn Rules 1.1,1.3, 2015-1132McWhorter McWhorter S E C I T O N Y R A N I L P I C S I D • Mobile attorney Leigh Mobile richard Watters •        OVErViEW Of THE PrOgram THE Of OVErViEW JOin? WHy June 15, 2016, while the three-year suspensionwillbe June 15,2016,whilethethree-year Bar. Watters suspensionbeginning the90-day willserve Commissiondays oftheAlabama State by theDisciplinary from oflaw thepractice inAlabama for three years and90 1132 and15-1379] bama Rules ofProfessional Conduct. [ASB Nos. 14-1035,15- records heisrequired to maintain andproduce by theAla- duce upon therequestofGeneralCounsel oftheOffice ATM withdrawals. and disbursedfundsfrom histrustaccounts to cashvia account, usedhistrustaccount for personaltransactions 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 In all these matters McWhorter failedto maintain allthesematters orpro- In McWhorter Download the application the Download at or email [email protected]. sign meUp! www.alabar.org was suspended • Mobile attorney Mobile KimberlyLeona Bell • from oflaw thepractice inAlabama for 60days, by order and 2015-678] and employed adisbarred attorney. [ASB Nos. 2013-1447 ted heentered into withaclient abusinesstransaction 5.3, 5.5(a)(2),8.4(a)and8.4(g),Ala.R.Prof. C. wherein Watters to violating pleadedguilty Rules1.8(a), sion’s acceptance of Watters’s plea, conditional guilty Commis-tered itsnotation basedupontheDisciplinary notation of Watters’s suspension. en- The supreme court ofAlabamaMay 12,2016,theSupremeentered Court a probation, withconditions, for period. thethree-year On held inabeyance at whichtime Watters willbeplaced on was suspended Watters admit- fective 12, 2016.[ASB April No. 2011-1497] reinstated by order ofAlabama, oftheSupremeef- Court oflaw practice active inAlabama andwas subsequently On Marchpetitionedfor 7,2016,Bell reinstatement to the Commission to work forof theDisciplinary thelaw firm. and otherparalegal duties. failedto Bell obtainpermission secretarial toturned herlaw where firm sheperformed After beingtransferred status, inactive to re- disability Bell transferred status inactive inSeptember2013. to disability 3.4(c) and8.4(g),Ala.R.Prof. hadrequested C.Bell to be to plea,wherein violating pledguilty Rules guilty Bell Commission’splinary acceptance ofBell’s conditional enteredThe supreme court itsorder basedupontheDisci- ofAlabama,of theSupremeeffective 21,2016. Court April care ofyOU? 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 www.alabar.org and . L 373

T H E Alabama Lawyer 374 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 September 2016 graduate of the University of Marc A. Starrett Wilson F. Green is an assistant attorney is a partner in Fleenor & summa tified onthesecond prepared accident report by theofficer, whichwas public record. tial defendant; Lucas was notidentified ontheoriginal butwas accident iden- report, Plaintiff failedto exercise ofLucas theidentity aspoten- duediligence inascertaining Lucas, no.Ex parte 1150382(ala. June10,2016) relation fictitious Parties Back; for discovery dence. evaluating aclaim. Rule27(a)doesnotallow pre-action evi- to discovery of preserving thepurpose therulealsolimitspre-action an action; Rule 27(a)explicitly requires apetitionerto show that sheispresently unableto bring , no. ofMontgomery City 1150439(ala.Ex parte June10,2016) rule 27 have withthejudgment defendant. because thesettlements did notimplicate ajoint obligation thoseentities might Trial court’s was improper basedonsettlements order withother parties ofset-off 3, 2016) Collisions,Har-Mar Inc. v. Scottsdale Insurance Company, no. 1141230(ala. June set-Off damus relief isavailable. volve acomplaint isnotanorder whichonitsface was from time-barred, whichman- judgment order statute rejecting Summary oflimitations defense, whichdidnotin- WattersEx parte , no. 1140526(ala. June3,2016) mandamus Supreme Court From theAlabama rECEnT CiViLdECisiOns R E N R O C E T A L L E P P A E H T disclose financialaidstatus. their financialaidforms, becausethosewould necessarily hibited disclosure even ofstudents’ on namesandsports of1974,20U.S.C. Act andPrivacy tional Rights §1232g, pro- Financial-record requirements privacy intheFamily Educa- 2016) Kendrick v. Co. TheAdvertiser , no. 1150275(ala. June24, records;Open student financial records added by amendment becauseakeywitnesshaddied. dants could defend notfullyandfairly againsttheclaims of theclaimswhentheyfiledtheiroriginal complaint. Defen- delay inamendingcomplaint whentheyshouldhave known Plaintiffs failedto demonstrate goodcausefor excessive 2016) Alfa Mut. Ins. Co.Ex parte , no. 1141038(ala. June10, amendments; Cause good OPTIONS TOT GROW GR YOUR BUSINESS THE WAY YOU YOU WANTY oѴķ moou u=vbmѴ1m -|;| o @u |-;bv o|_; =ou v|u-|;]b;v o@;u |o o b|_ r-u|m;u -11lѴ-ঞomķru;v;u-ঞom-m7|u-mv=;uo=|_;bu;-Ѵ|_ĺ 1-m ruo=;vvbom-Ѵv ou o= ;-Ѵ|_ om; ou ]o-Ѵvķ o= l-m-];l;m| ;r;ub;m1;7 |_; u;]-u7bm] 1ouv; 1Ѵb;m|vĽr;uvom-Ѵ-m70vbm;vvCm-m1b-Ѵ-@-buvĺ!;]-u7Ѵ;vvo=ou1Ѵb;m|vĽCm-m1b-Ѵ om |uv|ķ$uv|l-uhĽv o r| 1-m r;uvom-Ѵ |;-l |o l-m-];l;m| rѴ-mmbm] u;ঞu;l;m| uol -ѴѴoubvb|om;o=ouoL1;v|o7-ĺ O GR OU m-1 l -;||m; l ;]-m- l

Y YWO L o u o =o ; m o |bvb uo ѴѴ- v 0 7 m - Ѵ- m o vu; r Ľv|m ;bѴ1 v;=our u o =o ; m o ķvѴ- o ] bm m-Ѵr |m; l ;uঞ ;u l ou o ঞ -u;v;urķm o ঞ -Ѵ l 11- OUR BUSINESS Especially iftheway wantEspecially Es you p -7o|v;1L ĺ ĺ WWANT acie ll ly if thew iis o is wheelhouse. out your of y ifthew s o ĺvub- @ - Ѵ-b1 m - m C vv ; mbv ķ|v u|Ѵ- m o vu; r o| ] m !!; ut o $ ; u AANT of y of f y ĺ_|Ѵ- ; ub; _|=o u;=v m -u| 7 m - m o aay y ;_| ]mb7u-];u ;vu o1 m o o | r y o o| o _|b u; m|u- r m -1 vѴ- m obvv ur wo vĽhu-l|v =ovv;Ѵ7u-] THE supreme court reversed,supreme court holdingthat genuineissueof ment was unambiguous, entitling wife 3to proceeds. The provision agree- inoriginal IRA held that defaultbeneficiary they were receiving theproceeds oftheIRA. The circuit court However, children testified that father hadtold themthat avoid thedefaultdesignation. Nodesignation occurred. designated abeneficiary, andthat heneededto dosoto number ofyears, father received notices that hehadnot wifemarried 2,thenwife 3 and thenhelater died. For a mother andhadthree children. Later, motherdied;father re- was destroyed. At timeofagreement, fatherto was married ing spouse. Account designation agreement withpurported was designated,no beneficiary benefitswould goto surviv- count agreement would receive proceeds upondeath, or, if Father’s designated provided IRA inac- that beneficiary(ies) v.Dees , no. Dees 1150107(ala. June24,2016) Contractiras; trustmark.com trustmark.c elhoheur w WWA tnau woy y uus AAY s Y om _|Ѵ-; 7 ;1m ;bu; r ; v ; _| uo= v;b] ;|-u|v u; @ o .e .e uo =o |m; l ;]-m- l Ѵ-b1 m - m C Ľv|m ;bѴ1 u o = www.alabar.org 375

T H E Alabama Lawyer 376 T H E Alabama Lawyer September 2016 riam, joinedby four justices, onebeing retired Justice Lyons. cu- isper opiniononspecific jurisdiction andplurality diction eight-member court. opinionongeneral juris- The majority tion intheforum state. Justice Shaw was recused, leaving an anonresidentcient to subject defendant to specificjurisdic- movement ofgoodsinto forum standingaloneisnotsuffi- no evidence inthis case).Foreseeability ofsuchcontacts of controversyvery (andthere was that establishesjurisdiction judication from, ofissuesderiving with,the orconnected andinvolve mustgive to rise theepisode-in-suit activity ad- tocause for exist, GMCanada’s specificjurisdiction in-state dent were be- notsufficient to specificjurisdiction, trigger (2) GMCanada’s withAlabama contacts related to theacci- and ofestablishinggeneralpurposes personaljurisdiction; systematic asto render GMCanada “at home” inAlabama for Canada’s withAlabama contacts were notsocontinuous and interstate movement held:(1)GM ofgoods, thecourt casesregarding inproduct-liability ing personaljurisdiction opinionofwhichisacompendium oflawmajority concern- which was eventually granted. 101pagesofopinions, In the Canada moved to dismissfor lackofpersonaljurisdiction, Two-plus years litigation, into GM liability thisproducts (ala. June24,2016) Hinrichs v. General Motors ofCanada, Ltd., no. 1140711 Personal Jurisdiction stronger to thedispute. connection were St. ClairCounty hadacomparatively made–thus, occurredconduct andwhere theallegedmisrepresentations St. ClairCounty, becausethat iswhere theallegedwrongful proper there, but(2)interests ofjustice mandated transfer to was physically present there continually, andthusvenue was ered 61loadsoffreight there ina54-week andthus period in BaldwinCounty basedonevidence that Interstate deliv- residence), becauseInterstate was doingbusiness by agent (1) venue was proper inBaldwinCounty (county ofplaintiff’s June 24,2016) Interstate Freight USA,Ex parte Inc., no. 1141422(ala. Venue; forum non Conveniens testimony ofwhat father haddesignated. existedmaterial asto fact designation basedonchildren’s (Continued from page375) R E N R O C E T A L L E P P A E H T back to anullity. whenfiled,tion was anullity andthat nothingcanrelate relate back. agreed,The supreme court holdingthat theac- standing at thetimeofsuit, andthat reappointment didnot and complaint becausePRlackedcapacity was anullity judgment, contendingsummary that thewrongful death intheiranswers,of standingorcapacity butlater moved for limitations hadexpired. period Defendants didnotraise lack point herasPR. That reappointment was granted the after tions; PRmoved probate to reopen estate court andto reap- wrongful death casewithinthetwo-year statute oflimita- tate was later closedandPRdischarged. PRlater filed Decedent died;estate was openedandaPRappointed. Es- 1141158 (ala. July8,2016) LLC of Alabama, Anesthesia v.Northstar Noble,no. Personal representative Wrongful death; standing andCapacity of complaint claim. ontheunderlying fromarate theattorney’s andapart failure to timelyfilea Act, sep- Liability tionable undertheAlabama Legal Services client asto thestatus oftheclient’s claimisac- underlying Fraud committed by anattorney that defrauds theattorney’s v.Cockrell Pruitt , no. 1140849(ala. June30,2016) Liability Legal services after June2005. after specifically allegedthat thetumorgrew inthefour years 6-5-482,however,pose undersection becauseplaintiff the tumor. The claimwas barred by thefour-year ruleofre- a seizure requiring himto undergo asurgical of resection 11,2015,when,hesays,ruary hefirstsuffered alegalinjury– didnotaccruemaintained until that Feb- hiscauseofaction presence oftumor)occurred in2005.However, plaintiff Alleged medicalnegligence (failure to inform patient of P.C. Cutler v. University of Alabama Health Services Foundation, accrual malpractice; statutemedical ofrepose; , no. 1150546 (ala. July 8, 2016) June 10,2016) Hospice Family Care v., no. Allen 2140861(ala. Civ. app. Coming” rule Workers’ Compensation; “going and Court of Civil Appeals From theAlabama of limitations. personalrepresentativeactual expiration after ofthestatute sonal representative plaintiff could notsubstitute isanullity; commencedWrongful-death by action someonenotaper- 1150362 (ala. July15,2016) Inc. Applications, no. ofAlabama, Bio-Medical Ex parte Wrongful death; a action “nullity” abandonment ofemployee’s duties. compensable, becausethe deviation was notan sonal errand enroute homedidnotrender thedeath non- they chose. Employee’s onapurely per- stop at pharmacy oftheirdutiesat homeorinanytegral otherlocation parts rule. HFChadencouraged nurseemployees to complete in- compensable underanexception to the “going andcoming” court’s trial Evidence supported conclusion that death was fraud; reasonablereliance County.gomery administrative liesintheCircuitofMont- action Court Ala. Code no. 2150652(ala. Civ. app. June17,2016) , ofCosmetology Barbering and Board Alabama Ex parte administrative Law; Venue app. June17,2016) Price v. Union,no. Credit One Alabama 2141012(ala. Civ. § 34-7B-11(b) requires§ 34-7B-11(b) that venue for any appealof www.alabar.org 377

T H E Alabama Lawyer 378 T H E Alabama Lawyer September 2016 lar ingress andegress to plaintiff’s property. driveway’s owner, andwhichwas theonlymeansofvehicu- based ontheuseofadriveway, from withoutpermission the grantEvidence ofaneasement supported by prescription, Quinn v. Morgan Easements calendar days. unlawful detainerunderAla.Code in to circuit court Time court appealfrom for district taking 2016) v.McWhorter Parsons, no. 2150555(ala. Civ. app. July8, Unlawful detainer; Time for appeal ship; and(3)asto implication, there was use. noactive use; (2)asto necessity, there oforiginal owner- was nounity prescription, there was noexclusive andcontinuous hostile byscription, orby necessity implication, because(1)asto findingofaneasement byEvidence pre- didnotsupport Hall v. Hall,no. 2150266(ala. Civ. app. June24,2016) Easements ofpurchaser.closed identity possession andprovided contemporaneously dis- clearly closingstatement inplaintiff’sests indevelopment entity; tions concerning ofpurchaser identity ofownership inter- Plaintiff could notreasonably rely onoral misrepresenta- an application ifthecommission findsthat the statements in on thecommission to duty deny5(d) imposesa mandatory mission exercises discretion, inthiscase, Ala.Code to subject “arbitrary andcapricious” review whenthecom- Held: (1)althoughreview ofacounty commission’s is actions Civ. app. July22,2016) v.tion Authority Town ofSummerdale,no. 2130708(ala. East Central Water, County Baldwin Sewer Fire and Protec- municipal Law main problemsarthritis. now stemmed from pre-existing treating physician’s records andtestimony that worker’s for torn meniscuswassurgery non-compensable,given court’s trial Substantial evidence supported conclusion that 2140245 (ala. Civ. app. July22,2016) v.Smith Brett/Robinson Company, Construction Inc., no. Workers’ Compensation (Continued from page377) , no. 2150189 (ala. Civ. app. July 15, 2016) § 35-9A-461(d) isseven R E N R O C E T A L L E P P A E H T § 11-88- such service) renderedsuch service) ECB’s wrong. application factually spite the towns’ apparent decisionto choosenotto provide (de- to intheECBexpanded provide territory ability service pable ofproviding service,” andthusthetowns’ undisputed not appropriate; (2) “adequate” 11-88-5means insection “ca- the application are nottrue, andthusdeferential review is Court States Supreme From theUnited decision to pay the claim. was material toclaim ifthecertification thegovernment’s gives towith respect thosegoodsorservices, to rise anFCA quirements that makethoserepresentations misleading ance withmaterial statutory, orcontractual re- regulatory provided,goods orservices butfailsto disclosenoncompli- government whichmakesspecificrepresentations aboutthe liability. Adefendant submittingaclaimfor payment to the canbeabasisfor FCA theory The impliedfalsecertification 15-7 (U.s. June 16,2016) Universal Inc. HealthServices, v. U.S.ex rel. Escobar, no. false Claims act may have briefly left). courthouse (with perhaps one exception, as to a juror who under circumstances where the jury members had not left the deliberations after identifying an error in the jury’s verdict, jury discharge order and recall a jury in a civil case for further Federal district court has a limited inherent power to rescind a v.Dietz , no. Bouldin 15-458(U.s. June9,2016) Jury Trials trative Procedure Act. to review subject undertheAdminis- action a finalagency ters were is to navigable Corps andthussubject jurisdiction Corps’ wa- determination asto whethercertain jurisdictional (U.s. may 31,2016) U.S. Army Corps v. ofEngineers Hawkes Corp. , no. 15-290 administrative Law 20, 2016) MotorEncino Cars, Inc. v. Navarro, no. 15-415(U.s. June administrative Law tend onlyto damageswhichare incurred domestically. ing theUnited States. Additionally, RICO can ex- civilliability engage in,orsignificantly affect, commerce involv- directly under RICO, butforeign enterprises willqualifyonlyifthey ofRICO.purview Thus, foreign enterprises canbeenterprises towith respect thosepredicate fallingwithinthe acts RICO evinces intent by Congress to reach acts extraterritorial June 20,2016) RJR Nabisco, Inc. v. Community, no. European 15-138(U.s. riCO; international Law 903(1),preempts Act. theRecovery section Code, particularly heldthatSupreme theBankruptcy Court corporations to restructure theirclimbingdebt. The Code which mirrored Chapters 9and11oftheFederal Bankruptcy Act, passedlegislation,astheRecovery Rico Puerto known no. 15-233(U.s. June13,2016) Commonwealth Rico v. ofPuerto California Tax-Free Trust, Preemption rico; Bankruptcy Puerto bers the statutory grant of discretion to district courts.” cause the test is “unduly rigid, and . . . impermissibly encum- being inconsonant with the language of section 284, be- pursuant to § 284. The Supreme Court rejected test, for determining whether damages may be increased eral circuit had adopted a two-part test, called the times the amount found or assessed.” 35 U.S.C. § 284. The fed- fringement, courts “may increase the damages up to three Section 284 of the Patent Act provides that, in a case of in- (U.s. June13,2016) Inc. v.Halo Electronics, Inc., no. Pulse Electronics, 14-1513 Patent stances relevant to granting fees. into accountposition, whilestilltaking allothercircum- weight to reasonableness theobjective ofthelosingparty’s shouldgiveof theCopyright substantial court Act, adistrict When deciding whether to award attorney’s fees under § 505 16, 2016) v.Kirtsaeng JohnWiley &Sons, Inc., no. 15-375(U.s. June Copyright and would have Rico’s enabledPuerto publicutility Seagate Seagate as follow procedures thecorrect inissuingtheregulation. “procedurally defective”–where by errs failingto theagency donotapplyChevron Courts and “workable” “race-neutral alternatives”the do school not suffice. satisfied its burden of demonstrating that is “available”narrowly tailored to achieve the university’s permissibleproper.” goals, Additionally, when determining whetherment theto whichuse of some, race but not complete, judicial deferencedent is body diversity is, in substantial measure, an academicdecision judg- to pursue the educational benefits that flow from“compelling stu- governmental interest” component of theas onetest, permissible “the factor in admissions decisions. As toThe the Court upheld, under strict-scrutiny review, UT’s June 23,2016) use of race Fisher v. University ofTexas Austin at , no. 14-981(U.s. affirmative action from Planned Parenthood v. Casey . braced theundue burden test from opinion theplurality den ontheexercise ofthat right. The Court’s em- majority woman’s and, thus, rightto imposedanundue bur- abortion that theselaws place substantial obstacles inthepath ofa to surgical centers. (perJusticeThe Breyer) Court reasoned to have abortions facilitiesakin establishments performing atmitting privileges anearby hospital, and(2)required to havequired abortions hospital-ad- physicians performing (5-3)invalidatedThe Court two Texas statutes which (1)re- June 27,2016) Whole Woman’s Healthv. Hellerstedt, no. 15-274(U.s. abortion sensual relationships or itsmembers. withatribe regulating ofnonmembers whoenter theconduct into con- claimsagainstnonmembers, includingasameansof tort have to adjudicate civil courts jurisdiction tribal that Indian theFifth affirmed Circuit’s Court An equally-divided holding , no.Indians 13-1496(U.s. June23,2016) General Stores,Dollar Inc. v. ofChoctaw MississippiBand Lawindian sothisholdingisnon-precedential. Court, equally-divided rankings. deportation The by affirmed Supreme an Court mentation ofthePresident’s concerning immigration policy The Fifth stopping Circuit imple- aninjunction hadaffirmed United States v. Texas, no. 15-674(U.s. June23,2016) immigration deference where aregulation is www.alabar.org 379

T H E Alabama Lawyer 380 T H E Alabama Lawyer September 2016 created questionon fact “responsible person” issue. Scott’s andotherjobduties, check-writing which authority holdings. Held:evidence asto was thescope conflicting of andpay willfullyinfailingto docollect acted over thewith- sponsible personbecomes personallyliableiftheperson truthfullyaccountlect, for, andpay over any tax;” andare- from employees’ wages, ifthat personwas “required to col- trustfundtaxes–i.e.,Service taxes withheldby abusiness son” whoisrequired to pay over to Revenue theInternal Under 26U.S.C. §6672,onebecomes a “a responsible per- Scott v. U.S.,no. 14-14649(11thCir. June14,2016) Tax the move. thus, employer hadcontinuing obligation to bargain after in newlocation was continuation operation ofprior and, dated employer’s changeoflocation, employer’s operation Employer hadbargaining relationship withunionthat pre- June 3,2016) NLRB v. Chemical Gaylord Co., no. 15-10006(11thCir. Labor Appeals Circuit of Court From theEleventh tionality oftheSECAdministrativetionality tribunals. The Eleventh constitu- decisionon a hotissue–the This isanimportant Hill v. SEC,no. 15-12831(11thCir. June17,2016) administrativesecurities; Law similarity” between two architectural works. whether the “average lay observer” would find “substantial Judges are necessarily better to ablethanjuries resolve no. 15-11912(11thCir. June17,2016) Inc. Services, v.Home Design Turner Heritage Homes, Inc., Copyright (Continued from page379) R E N R O C E T A L L E P P A E H T federal ofappeals. court andthen,ifnecessary,court, onappealto theappropriate solved firstintheadministrative forum, notthedistrict that Congress intended therespondents’ claimsto bere- cernible” from thereview schemeprovided in15U.S.C. §78y administrative action. concludedThe it Court dis- “fairly overrisdiction lawsuits collaterally an attacking trative proceeding,lackedju- court holdingthat thedistrict orderCircuit enjoininganadminis- court vacated adistrict cumstances;” suchcircumstances were present inthiscase. for settle, butcreatesthe parties acarve-out “exceptional cir- counsels againstgranting requests for vacatur madeafter are toCourts applyanequitable approach that generally 15-12781 (11thCir. July12,2016) Cas. Ins.Hartford Co. v. Crum&Forster Ins. Spec. Co., no. rule 60;settlement 1681n. afindingthat itsviolation was willfulundersection support disputes,handling thesetype theevidence was sufficient to ing to thedebt. Given theevidence ofMidland’s system for ability, whenthebuyer documents hadnounderlying relat- relying oninternal data to verify aconsumer’s and li- identity judgment initsfavor onareinvestigation claim,by simply under15U.S.C.duty summary §1681s-2(b), soasto support Downstream debtbuyer could notsatisfy itsinvestigatory Cir. July11,2016) v.Hinkle Mgmt., Credit Inc. Midland , no. 15-10398(11th fCra (agreeing onacceptance). to terms by clicking tered into witha inconnection “click-wrap” agreement no evidence that anagreement to arbitrate was ever en- (the state law applicableto contract formation), there was Order denying arbitration wasunderGeorgia affirmed; law (11th Cir. July5,2016) Bazemore v. JeffersonCapital Systems, Inc. , no. 15-12607 arbitration; Contract formation Ct. 2455(2012)isretroactive. juvenile defendants announced in life withoutparolebition againstmandatory punishment for v.Under Montgomery Louisiana , 136S.Ct. 718(2016),prohi- June 17,2016) State (v.Ex parte Billups) , no. Cr-15-0619(ala. Crim. app. Constitutionality ofdeath Penalty Click v. State ofMillerv.retroactivity Alabama reasonable suspicion to support a traffic stop; driver’s nervousness alone cannot suffice to create an officer during a pat-down search of a driver following a Trial court erred in refusing to suppress cocaine discovered by Rice v. State search AppealsCriminal From of theCourt tests. cident to arrests for drunkdriving, butnotwarrantless blood The Fourth Amendment warrantless permits breath tests in- Birchfield v. North Dakota Criminal Procedure tional stop andtheevidence. warrant attenuated between theunconstitu- theconnection anduntainted arrest ofavalid, discovery pre-existing duct; less admissiblebecausethere was noflagrant police miscon- arrest was legalbuttheinitialstop was not, was neverthe- Evidence obtainedinasearch incident to arrest, where the v.Utah Streiff,no. 14-1373(U.s. June20,2016) Criminal Procedure Court States Supreme From theUnited rECEnT CriminaLdECisiOns , no. Cr-15-0043 (ala. Crim. app. July 8, 2016) , no. Cr-12-0941 (ala. Crim. app. July 8, 2016) , no. 14-1468 (U.s. June 23, 2016) Terry Miller v.Miller Alabama,132S. pat-down search. to thestate permit to incapitalcases. seekthe death penalty orderedconstitutional was court setaside;thecourt thetrial Trial court’s order that haddeclared un- thedeath penalty trict court is inadmissible in his circuit court trial denovo trial isinadmissible inhiscircuit. court court trict App. 1988),Defendant’s pleaonaDUIcharge indis- guilty Phillips v.Overruling of Dothan, City 2016) Woods v. State, no. Cr-14-0845(ala. Crim. app. June3, admissibility ofPleaindenovo Trial ofjudgment.mained pendingawaiting theentry failedto pronouncecourt casere- sentence inopencourt; Defendant’s appealdismissedaspremature becausetrial 2016) v.Benn State , no. Cr-14-0714(ala. Crim. app. June3, sentencing Open-Court preclusion. andthereforeis notjurisdictional to Rule32 issubject sentencing error court’s inthetrial failure to assessthat fine Act, Ala.Code Assessment While Reduction fineassessed underDemand Hall v. State act demand reduction hearing. evidentiary trial fromto immunity prosecution isdetermined through apre- where theyhadtherightto be. The defendant’s entitlement andwhowas inaplace engaged inanunlawful activity empting from thecommon-law rulesanyone whowas not he meets§13A-3-23(b)’s “Stand Your Ground” provision ex- the common-law rulesregarding to retreat, theduty unless force underAla.Code Defendant whoclaimsto have beenjustifiedinusingdeadly 2016) Malone v. State, no. Cr-14-1326(ala. Crim. app. June3, stand your ground defense were regularly relied uponby sheriff’s department. as to ofpreparation regularity orthat reports ofNCICreports within thebusiness-records exception. didnottestify Officer formation isinadmissiblehearsay not Center report (“NCIC”) Deputy’s testimony regarding contents ofNational In- Crime 2016) Ingmire v. State, no. Cr-14-1447(ala. Crim. app. June3, admissibility ofnCiCreport , no. Cr-15-0273 (ala. Crim. app. July 8, 2016) § 13A-12-212, ismandatory, aclaimalleging § 13A-3-23 musthave complied with 534 So. 2d381(Ala. Crim. www.alabar.org L 381

T H E Alabama Lawyer 382 T H E Alabama Lawyer September 2016 gardner, William marshall Knowles, Jr. irving, ralph Chitwood, Carey Jones allison, matthew scott Berry, Josephmorgan russell, george mark Booth, ronniedean Booth, Died: June24,2016 Died: May 19,2016 Died: May 17,2016 Died: May 17,2016 Died: May 13,2016 Died: May 19,2016 Died: May 5,2016 Admitted: 2008 Admitted: 1969 Admitted: 1995 Admitted: 1959 Admitted: 1994 Admitted: 1957 Admitted: 1985 Birmingham Huntsville Trussville Trussville Anniston Florence Atlanta S L A I R O M E M O a pivotal role in dismantling legal segregation in the victims of the Tuskegee Syphilis Study, and he played included Martin Luther King, Jr., Rosa Parks and the Fred Gray is the keynote speaker. Gray’s clients have rights attorney, preacher and former elected official tickets to the SEC Championship Football Game. Civil two tickets to the Iron Bowl Football Game and two ing legal education program with giveaways such as Abroad Program and several mentoring opportunities. lodging at the law school’s Cambridge, England Study full-tuition scholarship, an annual stipend, tuition and one entering Cumberland School of Law student a tant to Jere. Each year, the fellows program provides who share ideals that were so impor- moting the development of lawyers commitment to service, thereby pro- and also a history of leadership and with strong academic credentials seeks to recruit outstanding students the fellows program. The program Jere and his wife, Lyda, established Cumberland. White, Jr. FellowsProgramat fundraising eventfortheJereF. Institute servesastheprimary cacy Institute. The Trial Advocacy the JereF. White, Jr. Trial Advo- lege of Trial Lawyerswillpresent bama Fellowsofthe American Col- Beloved LawyerandRaisesFunds This year’s institute promises to be a unique continu- Prior to his death October 3, 2011, School ofLawandthe Ala- University’s Cumberland n November11, Samford For FellowshipinHisHonor CLE ProgramRemembers Jere F. White, Jr. Lakeshore Dr., Birmingham35229. berland School ofLaw, SamfordUniversity, 800 line andsentto: Attention H.C.Strickland, III,Cum- School ofLaw”with“White Fellows”inthememo Program” orbychecksmade payableto“Cumberland Gift” andthenselecting “Jere F. White, Jr. Fellows by clicking“GiveOnline,”checking“Designate My Program atsamford.edu/cumberlandlaw/make-a-gift votion to his faith, family, friends and community. anced his success as a lawyer with an even stronger de- the bench and lawyers on both sides of the bar. Jere bal- a lawyer’s lawyer. He cherished his relationship with practice of law. A third-generation lawyer, he was truly Gifts canbemadetotheJereF. White, Jr. Fellows others to the highest standard of the Birmingham. He held himself and foot, Franklin & White LLC in was a founding member of Light- Cumberland School of Law, Jere of the University of Georgia and son, friend and mentor. A graduate will be remembered as a great per- in the country. More importantly, he one of the most outstanding lawyers law/continuing-education able at details and registration are avail- nessee and Georgia. Institute bama, Florida, Mississippi, Ten- preapproved for credits in Ala- presenters and moderators and is gram offers an outstanding range of state of Alabama. The CLE pro- Jere will be long recognized as samford.edu/cumberland www.alabar.org . L 383

T H E Alabama Lawyer 384 T H E Alabama Lawyer September 2016 institute, visit www.ali.state.al.us. For more information about the [email protected] Othni J. Lathram Paul DeMarco Co-authored by 1 proach istheonlymechanismavailable to thelegislature. ap- basis. vise theAlabamaThis Constitution article-by-article onanarticle-by-article chaired by Brewer, former Governor Albert was to charged re- withleadingtheeffort legislature created the Constitution Commission Revision in2011. That commission, votes andbothwere subsequently ratified inNovember 2012. with near-unanimous by passing botharticles support sponded with enormous thecommission recommendedto thesearticles, their passageandthelegislature re- ofthe proposed revisions After was minortweaking re-energized. mission, theeffort but could notgetthrough bothhousesuntil 2012. With theinstallation ofthecom- passedoneofthehouses legislaturesions actually on numerous occasions, being introducedposed revised inthelegislature articles eachsessionsince. The revi- Commission. The endeavor XIIand XIIIbeganin2007,withpro- to revise Articles following their passageupontherecommendation oftheConstitutional Revision Finally,elections. were XII(corporations) andXIII(banking) ratified in2012,Articles resentative Jack Venable to revise ledtheeffort Article VIII, relating to suffrage and Howell approach was followed Heflin. againin1996whenRep- The article-by-article Article VI, relating to thejudiciary, Justice was ledby revised then-Chief inaneffort to improvehistory it. As 2012, was more fullydiscussedinthiscolumn inJanuary weNevertheless, are inits115-year inthemidstofonemostpositive efforts 1901 Constitution, itsfoundation, itslengthandthemany to replace failedefforts it. to vote onanumberofamendments to ourstateopportunity constitution. ever, inadditionto allofthoseraces, here inAlabama we will alsohave the gressional races and, insomeinstances, gubernatorial andotherstate races. How- one ofthemore interesting presidential ofalltime, theoutcome elections ofcon- asweleges inAmerica vote. willbefocused ontheoutcome ofthecountry Most of Continues Constitutional Reform The article-by-article approach hasbeensuccessful three 1973, timesinthepast. In The article-by-article We are alltoo familiarwiththemanyandsomefolklore associated facts withour On November 8,2016,we willhave therightto exercise oneofthegreatest privi- P U T P A R W E V I T A L S I G E L 3 2 the power limited administrative to takecertain powers without County administrative Powers (act 2015-220) whelmingly againstit. ment ispassedeven iftheaffected votes community over- long asthestatewide vote favors ratification, theamend- and thestate asawholevoted infavor. Undercurrent law, so would onlyberatified ifboththelocalaffected community that aproposed localamendment that issent statewide whether ithaslocalorstatewide impact. the substance oftheamendment while isolating theissueof on statewide. This would allow thelegislature to fullydebate on thisresolution would causetheamendment to bevoted fects oneormore counties by name. Asinglenegative vote would beonaresolution onwhethertheamendment af- require vote atwo-thirds for passage. The second vote would bepassageoftheamendment andwould continue to vote ofthelegislature would be bifurcated. The firstvote ment Commissionisnotmerely local. determines itsimpact casts avote againstitoriftheLocal Constitutional Amend- local amendment canbesent statewide ifasinglelegislator tions andmustbevoted onstatewide. Undercurrent law a can thereby bevoted onlocally, orhasstatewide implica- termined whetheraconstitutional amendment islocal, and 284.01(actrevisions 2015-44) to section On November Ballot Reform Measures Constitutional ecutive andlegislative branches ofgovernment. dealingwiththeex- includingthosearticles harder portions, tution andgive momentum to onthe continue working the process by to whichwe modernize ourconsti- are trying ments will appear on the ballot in November. with local constitutional amendments. These four amend- administrative powers and revisions to Section 284.01 dealing III (distribution of power), Article VII (impeachments), county constitutional amendments. These include revisions to Article Legislature has since passed four more significant proposed This amendment would grant county commissions the Another oftheamendment significant would aspect be This amendment would change theprocess sothat the themechanismby whichitisde- 284.01setsforth Section Passage ofthesefour validate amendments would further Following upon the success of the 2012 effort, the Alabama county commission musthave from that sign-off official. power official, theoffice ofanotherelected thatthe impacts by general orlocallaw. Finally, inorder to exercise any powers would alsobelimited to thosethingsnotaddressed lice, landuseandtaxingpowers through thisprocess. The functions. assistance andemergency county officefunctions, functions transportation functions, publicproperty sonnel functions, a referendum orlocallegislation. These powers includeper- only valid whenapproved by thelegislature. the disbursement ofstate fundsandthat suchanorder is that provides doesnothave that acourt thepower to order utive and judicial. Each of these has a defined role and powers. (changed from “departments”) of government: legislative, exec-ernment. If passed, the amendment creates three branches iiirevisions (actarticle 2015-200) Endnotes out aboutthemto allinterested citizens. themandhelpusgetthewordhope that you willsupport basis. provingWe ourconstitution onanarticle-by-article they continue ourprogress onthepath ofsignificantly im- changes andimprovements theymake, butalsobecause for theoutdated term “solicitor.” peachment andwould substitute theterm “district attorney” to im- judgesasofficers subject court would includedistrict tion would delete theoutdated reference to chancellors, officers to whoare impeachment. subject The rewritten sec- including themembersofState Board ofEducation as moving theState Superintendent ofEducation and byment wouldre- alsomodernize theimpeachment article capitalization andgender-neutral references. The amend- technical amendments, including renumbering sections, way to asareaction it. cumstances inourstate andshouldnotbeviewed inany this amendment by thelegislature longpredates current cir- for impeachments inAlabama. The work onandpassageof article Vii revisions (act 2015-199) 2. Robert McCurley, Robert Jr., “Legislative Wrap-Up,” 2. 3. 1. This amendment expressly prohibits theexercising ofpo- The amendment further incorporatesThe Amendment amendment further 582 This article deals with the distribution of power in state gov- These amendments are significant notonlyfor the This amendment proposes anumber ofnon-substantive Article VII oftheConstitution ofAlabama of1901provides new constitution.) See oftheConstitutionalPaul RevisionCommission. asvice-chair DeMarco served , State v. Manley . 441 So.2d 864 (Ala. 1983) (Holds that the legislature cannot propose a completely The AlabamaLawyer Vol. 73,No. 2012. 1,January www.alabar.org L 385

T H E Alabama Lawyer 386 T H E Alabama Lawyer September 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 represents thepersonal representative the personalrepresentative, thepersonis lawyer agree If otherwise. only that person,unlesstheclient and not afiduciary, thelawyer represents that personhasonly oneroleIf andis administration orprobate oftheestate. individual whohired himto assistinthe ansWEr #1: tate fundsorproperty? representative hasmisappropriated es- whenhediscoversity that thepersonal qUEsTOn #2: tate, whomdoesthelawyer represent? the administration orprobate ofanes- qUEsTiOn #1: Estate andClient Identity Representation ofan Generally, thelawyer represents the What isalawyer’s ethicalresponsibil- When alawyer isretained to assistin 1 the lawyer beneficiaries ofthe estate.beneficiaries to and the represent boththefiduciary could befound that hehasundertaken the lawyer failedto give suchnotice, it rulesofprofessionalcertain If conduct. violating orrisk sentation ofafiduciary repre- dutiesuponundertaking certain Rule 4.3. resentative inorder to avoid violating lawyer’s onlyclient isthepersonalrep- tate to thelawyer known that the and otherinterested inthees- parties the heirsanddevisees(“beneficiaries”) sentative only, thelawyer mustadvise sult, iftheclient isthepersonal repre- oftheestate.the beneficiaries As are- the impression that healsorepresents by oromission,give affirmative action The lawyer mustbecareful notto, either sentative andlawyer agree otherwise. individually, unlessthepersonalrepre- 2 A lawyer mustcomply with tirely represents dependent onwhomthelawyer actually in ofinterest whetheraconflict Oftentimes, existsflict. isen- may for beincon- theestate orabeneficiary or thefiduciary on to asituation describe inwhichtheinterests oftheestate The lawyer thengoes to himselfas “representing theestate.” ethical dilemmathelawyer isfacing, thelawyer refers often cerning therepresentation ofanestate. explaining the In phone callsfrom lawyers requesting ethicsopinionscon- disCUssiOn: to order anaccountingthe court oftheestate. should withdraw from thematter and, uponwithdrawal, ask thepersonalrepresentativeIf refuses to doso, thelawyer ofthepersonalrepresentative’sthe court misappropriation. tive to eitherreplace themisappropriated fundsorto inform sentative to convince inaneffort thepersonalrepresenta- lawyer’s isto remonstrate firstduty withthepersonalrepre- representative hasmisappropriated estate funds, the ansWEr #2: The Office ofGeneralCounselThe Office frequently receives tele- that thepersonal knowledge When alawyer hasactual G G G e e e t You t Y t Y t Y YouY You ou ou ou r r r F F F r r r e e e e e Alabama State BarMembers Receive 3 3 3 0 0 0 - - - D D D a a a y T y T T r r r i i i a a a l l l a a a t t t M M M y y y Cas C Cas e e e . . . c c c o o o m m m widow, an adult son and a minor son. After the lawyer assisted named her as executrix. The testator was survived by his ceased client’s widow to probate her husband’s will which died. Upon the client’s death, the lawyer was asked by the de- ation, the lawyer prepared a will for a client who subsequently executrix absconded with the assets of the estate. In that situ- provide a formal opinion on a lawyer’s ethical duties when an 105, wherein the Disciplinary Commission was asked to nary Commission indirectly addressed the issue in RO 1989- administration or probate of an estate. At best, the Discipli- the issue of whom the lawyer represents when assisting in the oftheestate.beneficiaries exist andwhat dutiesalawyer and owes to thefiduciary ofinterest indetermining whetheraconflict critical may the lawyer’s client inanestate actual orprobate matter is lawyer has breached any ethicalduties. As aresult, defining identifying determine thetrueclient whetherthe willoften oftheestate. thosecases,ies oftheestate In orthefiduciary ceives complaints filedagainstthelawyer by thebeneficiar- regard to theestate. Additionally, thebarsometimesre- The Disciplinary Commission has never directly addressed R ΍ MyCase www.alabar.org 387

T H E Alabama Lawyer 388 T H E Alabama Lawyer September 2016 tion inFormal Opinion94-380 recognized that the majority when alawyer handles anestate. The BarAssocia- American estates andtrusts. vide greater guidance to inthearea lawyers practicing of to issueaformal opiniononthemattersary inorder to pro- Commission hasdetermined that itisneces- the Disciplinary client andthelawyer’s resulting professional responsibilities, the fiduciary. tled to theloyalty ofthelawyer to muchthesameextentas maytate, (ostensiblybeenti- anon-client) that beneficiary ofthees- some situations where there isasolebeneficiary client,”mary isthe whilethebeneficiary “derivative client.” In isnottheonly client, butmerelywhere the thefiduciary “pri- ciaries. This relationship hasbeencharacterized asone beneficiaries, thelawyer alsohasanobligation to thebenefi- the personalrepresentative islegallyrequired the to serve personal representative to represent theestate andbecause oftheestate.aries thelawyer Because isretained by the oftheestate for theultimateduciary benefitofthe benefici- lawyer represents theestate for by acting andthrough thefi- General Counsel hasopinedthat theclient istheestate. The cerning thisissue. theirinformal opinions, In of theOffice of GeneralCounsel hasgiven recent informal opinionscon- client. Commission considered theexecutrix to bethelawyer’s sole the issueofclient identity, itisclearthat theDisciplinary orthecourt. the beneficiaries While addressing notdirectly lawyer could notdisclosetheexecutrix’s apparent fraud to close theconfidences andsecrets oftheclient. Therefore, the rules, thelawyer hadanobligation nottodisciplinary dis- Commission wentThe Disciplinary onto state that underthe refused, thenthelawyer shouldwithdraw from thematter. first callupontheclient to thefraud rectify and, iftheclient Commission opinedthat thelawyer should the Disciplinary the court. ecutrix’s actions to the other beneficiaries of the estate or to quested an opinion as to whether he could disclose the ex- communicate any further with the lawyer. The lawyer re- cash assets of the estate. Thereafter, the executrix refused to cash, the executrix moved to Tennessee, taking with her the the executrix in collecting the assets of the estate, including (Continued from page387) There are three regarding theories oftheclient theidentity asto ofthetrue theidentity light ofthelackclarity In Commission isalsoawareThe Disciplinary that theOffice ontheformerRelying Code ofProfessional, Responsibility 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 fiduciary of the estate. courts have also determined that a lawyer’s only client is the 217 Cal. App. P.3d 1258, 1268 (1990). Likewise, other state California ofAppeals stated Court asfollows: as aresult ofthetrustees’ actions. and, therefore, thelawyers were insulated from any liability determined that thelawyers’ onlyclients were thetrustees trustees allowed thevalue ofthetrustto decline. The court trust suedthelawyers for thetrustees the ofthetrustafter ofatestamentary Spinner,beneficiaries ies ofthetrust. In trustowedtestamentary nodutiesofcare to thebeneficiar- heldthat thelawyersof Massachusetts for two trustees ofa ner v. Nutt,631N.E.2d 542(Mass. 1994),theSupreme Court and notasaresult ofanethicaldispute. For example, inSpin- inthecontextthese decisionsarise litigation ofmalpractice oftheestate.sole client However, isthefiduciary mostof sional conduct. the estate could notbea “client” undertheirrules ofprofes- existence. As such,theDelaware State Barconcluded that ofthedecedent anddidnothave anindependent legal erty state law, theterm “estate” onlyreferred prop- to theactual 1989-4, theDelaware State Baralsoconcluded that under volved intheprobate proceedings.” of assetsrather thananorganization, in- andisnotanentity Bar noted that anestate is “for probate acollection purposes rate legalentity. Ethics OpinionNo. In State 91-2,theAlaska onstate law thatpart, indicated that anestate isnotasepa- lar conclusion, anumberofotherstate barshave relied, in of theestate, eitherjointly orindividually. reaching In asimi- ofthe estatesentative andnotthebeneficiaries orfiduciary view isthat thelawyer represents onlythepersonalrepre- A number of state courts haveA numberofstate courts alsoheldthat thelawyer’s by thefiduciary’s attorney. tion by thefiduciary. They are notowed directly aduty arebeneficiaries entitled to even-handed administra- self to claimsofnegligence from thebeneficiaries. The communication to estate him- beneficiaries, subjects to theadministrator,ances ofservice andby way of ous to conclude that theattorney, through perform- danger-only oneparty, would thefiduciary. bevery It is completed), theattorney, by definition,represents to surchargehence issubject whenhisadministration may beexposed to thepotential (and ofmalpractice While ofthisservice, thefiduciary, intheperformance See, Huie v. DeShazo 4 In Goldberg v.In Frye , the 3 In FormalIn Opinion , 922 S.W. 2d 920 entity. and that, therefore, anestate ortrustisarecognizable legal are treated asseparate legalentities for taxation purposes argument infavor ofthispositionisthat estates andtrusts merely anagent oftheentity. the personalrepresentative: tation, noted that thelawyer ispaidby the estate andnot orrepresen- ofAppeals, theory Court inadoptingtheentity tation for otherreasons. Steinway In v., theMichigan Bolden oftheestate. orbeneficiaries with eitherthefiduciary tity. The lawyer doesnothave relationship alawyer-client the lawyer represents the “estate” asafreestanding legalen- senting businessesandcorporations. Underthisapproach, monly employed underRule1.13,Ala.R.Prof. C.,whenrepre- ofrepresentationidentical to theory mostcom- theentity tation holdsthat theclient istheestate itself. This viewis 2000); (Tex. 1996); Other courts have adopted the entity theory ofrepresen- have courts adopted theory theentity Other The second approach to inestate client identity represen- sonal representative retains the attorney, the attorney’s Code We conclude that the clear intent of the [a[\MUK][\WUQbML\WMIKPKTQMV\ XZWNM[[QWVITUIZSM\QVOUI\MZQIT[)VLQVI WN XIKSQVO\ZIKSQVOZMXWZ\QVOIVLLQ[\ZQJ]\QWV \MIU[\ZI\MOQKITTaUIVIOM[_IZMPW][QVO PMIL[W]ZOZW_QVON]TÅTTUMV\[MZ^QKM[0MZ sensitive to business goals. That’s Jan. She Hyper detailed. Super organized. And, to meet. that you’ll want marketing ally Jan isa 6 In re Estate of Wagner Under this approach, the fiduciary oftheestate is Under thisapproach, thefiduciary and of the court rules is that, although the per- 334-277-0878 EXT192DAVISDIRECT.COM MARKETING MATERIALS MANAGEMENT The Estate of Fogelman v. Fegen , 386 N.W.2d 448, 450 (Neb. 1986). 7 , 3 P.3d 1172 (Ariz. Revised Probate 5 One argue thefollowing: , §57.3,4.3 Lawyering Geoffrey C.Hazard, Jr. and W. William HodesinThe Law of representation hasbeenmostprominently advocated by oftheestate. andbeneficiaries fiduciary This viewofestate sentation. Grimesv., 904N.E.2d 184(Ill.Ct. App. Saikley 2009). ofrepre- ofAppeals hasalsoadopted theory theentity Court 185 Mich. App.185 Mich. Ct. App. 234,238(Mich. 1990). The third viewholdsthat thelawyer jointly represents the tions, and many others, including parents. Because, in corporate directors and officers vis-à-vis their corpora- clude trustees, partners, vis-à-vis other partners, spouses, from the beneficiary. Clients with such responsibilities in- sequence, the lawyer also cannot stand at arm’s length does not stand at arm’s length from the client; as a con- a third party in the picture (namely the beneficiary) who Where the lawyer’s client is a fiduciary, however, there is supports this conclusion. tate and that the fees are paid out of the estate further attorney’s fees for services rendered on behalf of the es- tive. The fact that the probate court must approve the client is the estate, rather than the personal representa- rd Edition (2005),inwhichtheauthors On Target. OnTime. 8 The Illinois www.alabar.org 389

T H E Alabama Lawyer 390 T H E Alabama Lawyer September 2016 Comment to Rules 1.2and1.7,Ala.R.Prof. oftheclient in estateidentity representation. Rather, the 1.7, Ala.R.Prof. C.,doesnotprovide aclearanswer asto the representative istheclient, theComment to Rules1.2and Professional Conduct estate administration. UnliketheComment to Florida Rule of formed. Likewise, theydonotidentify alawyer’s client inan relationshipmine whetheranattorney-client hasbeen miral Ins. Co., tion isto theinsured.” ofAlabama,Inc. LifestarResponse v. Ad- the interests oftheinsured andinsurer, obliga- primary “the each.” Id.at 198.However, between where arises aconflict well astheinsurance theinterests company of infurthering against aninsured, theattorney represents theinsured as ance company retains anattorney to defend anaction that described relationshipCourt asfollows: aninsur- “When Hudgens, 533So.2d 194(Ala. 1988),theAlabama Supreme hires alawyer to represent one of itsinsureds. Mitchum v. In to that ofwheremost closelyakin aninsurance company (2005). The derivative client approach above asdescribed is Hazard &Hodes, The Law, §2.7,2-113 ofLawyering (Continued from page389) The AlabamaRules ofProfessional Conduct the representation isnotsubverted. also hasagreater to ensure duty that of thepurpose being implicated inthefiduciary’s and misconduct, lawyer therefore faces acorrespondingly greater of risk temptation to engageinimproper overreaching. The fair dealingasregards thebeneficiary, butmay face trigger. to ahighstandard issubject of The fiduciary in aclient’s fraud .isengagedby amore sensitive ary. First, thelawyer’s obligation to avoid participating derivative client approach to representation ofafiduci- A numberofconsequences follow from adoptingthe lawyer almost asifhewere aclient. [Footnote omitted] may beentitleding anon-client, to theloyalty ofthe is the “derivative” client. The speak- beneficiary, strictly client. [Footnote thisview, omitted] In thebeneficiary isnottheonlyclient, butmerely the duciary “primary” large analyticone, to say that insuchsituations thefi- isonlyasmalladditionalsemantic step,It andnota deemed employed to further that service as well. quired to serve the beneficiary, the lawyer must be the fiduciary, and because the fiduciary is legally re- the situations posited, the lawyer is hired to represent 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 17 So.3d 200,217(Ala. 2009). 4-1.7 whichspecifiesthat thepersonal C., state asfollows: do notdeter- rd Edition nent part, asfollows:nent part, compensated from the assetsoftheestate, states, inperti- 682, Ala.Code statutes intheAlabamaCode of 1975.For instance, §43-2- tration oftheestate.” Id.at 1096. has thepower to hire attorneys to assisthimintheadminis- stated(Ala. 1976),thecourt “[a] personalrepresentative . representative . ..” capacity Smelserv. In Trent, 698So.2d 873 that theexecutor employs counsel inhispersonal, nothis ofAlabamaSupreme noted that Court “[i]t istrueusually Wilkinson v.In McCall, 23So.2d 577,580(Ala. 1945),the the courts inAlabama havethe courts issueda “few cases.” instructive pear to have never addressed directly theissue. However, lution. Unfortunately, inAlabama ap- theappellate courts reliedoften oncaselaw orstatutes to reach adefinitive reso- The supreme court’s by various holdingissupported Many otherstate barsthat have addressed thisissuehave with special obligations in dealings with a beneficiary. Where the client is a fiduciary, the lawyer may be charged attorneys representing such administrator or executor fee or compensation . . . to be paid from such estate to tion thereof may fix, determine and allow an attorney’s any administrator or executor, the court having jurisdic- Upon any annual, partial or final settlement made by to the parties involved.to theparties ficiaries. The lawyer shouldmakecleartherelationship view, theclient istheestate ortrust, includingitsbene- underanother one view, theclient isthefiduciary; Under jurisdiction. clear underthelaw ofaparticular administration, oftheclient may theidentity beun- cumstances, ofinterest aconflict may estate arise. In as husbandandwife, and, dependinguponthecir- upon to prepare willsfor several familymembers, such and estate administration. Alawyer may becalled questionsmayConflict inestate alsoarise planning rule 1.2.scope ofrepresentation 1975, which allows a fiduciary orlawyer to1975, whichallowsbe afiduciary rule 1.7.Conflicts ofinterest * * Comment Comment . . . 9 estate planningand thepreparation of wills. regardingtice action alawyer’s to in beneficiaries liability that itconcerns irrespective amalprac- structive ofthefact Commission finds theholdinginRobinson Disciplinary The aduty,undertaken eitherby contract orgratuitously.” against alawyer by aplaintiff for whomthelawyer hasnot the law inAlabama for barsanaction legalmalpractice “that claims, ofAlabama theSupremedeclinedto change Court oftheestate. thebeneficiaries’ rejecting larger In portion client’s would thebeneficiaries instructions, have received a client suedthelawyer, claimingthat hadhefollowed the submitted for probate. The ofthe heirsandbeneficiaries the client subsequently died. As aresult, thewillwas later revoking it. The lawyer failedto follow theclient’s wishesand lawyer andaskedhimto destroy thewillfor of thepurpose a client. later, Sometime theclient delivered thewillto the the willoftestator. Benton, thelawyer draftedawillfor In ofanestatebeneficiaries suedalawyer for failingto destroy estate. to consult ofthe had noethicalduty withthebeneficiaries ful death alsoindicated lawsuit, that thelawyer thecourt While recognizing that theestate was theclient inawrong- lawyer’s stated thefollowing: thecourt actions, upholdingthe In action. and to pursue awrongful-death executor, thelawyer hired himself to represent theestate asexecutorserved ofthedecedent’s estate. as While acting , thelawyer Mills whodraftedthetestator’sclient. In willlater ofAlabamaSupreme indicated Court that theestate was the the estate.” power to hire attorneys to assist him in the administration of Alabama has stated that “a personal representative . . . has the his individual capacity. More recently, the Supreme Court of lawyer is hired by the fiduciary to represent the fiduciary in ties . . .” Along with sonal representative in the performance of administrative du- persons, including . . . attorneys . . . to advise or assist the per- 1975, allows a personal representative to “[e]mploy necessary (emphasis added) Additionally, § 43-2-843(17), Finally, inRobinsonv. Benton , 842So.2d 631(Ala. 2002),the v. Mills In Neville,443So.2d 935,938(Ala. 1983),the [the applicable rule of professional conduct]. here, if he failed to do so, did not result in a violation of dent’s failure to consult with the minor beneficiaries For these reasons, we are convinced that the respon- approves the allowances to the attorney for the estate. . . the client here, and it is the court which supervises and therefore in the ensuing litigation, it is the estate which is the outcome of the administration of the estate, and However much the beneficiaries are interested parties in Smelser v. Trent McCall , these statutes indicate that a , 698 So.2d 1094, 1096 (Ala. 1997). Ala. Code in- beneficiaries andotherinterestedbeneficiaries third parties. representative’s responsibilities toward thelawyer, thecourt, the lawyer, the scope of representation andthepersonal withthepersonal representativeshould clarify therole of aries that the lawyer would not have toward other third parties. would it impose on the lawyer obligations toward the benefici- obligations to the personal representative under the the estate does not in itself either expand or limit the lawyer’s personal representative has obligations to the beneficiaries of other client pursuant to Rule 1.6, tative a duty of loyalty and confidentiality just as he would any tate. the lawyer’s sole client is the personal representative of the es- sonal representative to assist in the administration of an estate, Commission that ordinarily, when a lawyer is hired by a per- ions and other state cases, it is the opinion of the Disciplinary Conclusion regarding Client identity resent thebeneficiaries’ individual interests inthematter. doing so,In thelawyer should explain that hedoesnot rep- states asfollows: do socould beinviolation ofRule 4.3,Ala.R.Prof. C.,which personal representative, individually. Alawyer whofailsto that thelawyer’sested parties soleclient inthematter isthe the lawyer shouldexplain to orotherinter- thebeneficiaries sentative to assistintheadministration ofanestate ortrust, tative or risk violating certain rules of professional conduct. ties upon undertaking representation of a personal represen- of interests. As a result, a lawyer must comply with certain du- estate which could result in conflicting loyalties and conflicts both the personal representative and the beneficiaries of the so, it could be found that he has undertaken to represent sents the beneficiaries of the estate. If the lawyer were to do action or omission, give the impression that he also repre- tative, the lawyer must be careful not to, either by affirmative toLawyers duties Third Parties Upon commencement ofrepresentation, thelawyer After considering the above-discussed cases, state bar opin- First andforemost, uponbeinghired by apersonalrepre- While the client would ordinarily be the personal represen- rect themisunderstanding.rect matter, the lawyer to shall makereasonable cor- efforts sented personmisunderstandsthelawyer’s role inthe orreasonablythatknows theunrepre- shouldknow imply that thelawyer isdisinterested. When thelawyer not represented by counsel, alawyer shallnotstate or dealingonbehalfofaclient withapersonwho is In 10 As a result, the lawyer would owe the personal represen- Rule 4.3. Dealing withUnrepresentedRule 4.3.Dealing Person Ala. R. Prof. C . The fact that the www.alabar.org Rules , nor 391

T H E Alabama Lawyer 392 T H E Alabama Lawyer September 2016 may thecourse during oftherepresentation. arise tion to identify andavoid ofinterests possibleconflicts that lawyer’s role inthematter, thelawyer will beinabetter posi- ofthe identifyingclearly theclient andadvisingtheparties from therepresentation ofeach.Rule1.7,Ala.R.Prof. C.By later diverged, thelawyer would berequired to withdraw representatives inanestate matter, andtheparties’ interests personal representative ortwo co-personal andabeneficiary be sent to allinterested persons. scope of the lawyer’s representation. This letter shouldthen an engagement letter thatdefinestheclient clearly andthe One suggestionhasbeenthat thelawyer considers drafting (Continued from page391) an officer of the court. Rule1.6providesan officer ofthecourt. asfollows: the personalrepresentative andthelawyer’s obligations as for abalance between thelawyer’s obligations to hisclient, misappropriated estate fundsisadifficultquestionasitcalls discovers that thepersonalrepresentative oftheestate has withestategaged inmisconduct assets. that thepersonalrepresentativetual knowledge hasen- only imposesdutiesuponthelawyer once thelawyer hasac- wasted ormisappropriated estate assets. Rather, thisopinion to investigate whetherthepersonalrepresentative has sonal representative’s inadministering theestate or actions alloftheper- upon thelawyer to monitor ordouble-check misappropriates Estate assets duties When thePersonal representative Likewise, to represent ifalawyer was to undertake botha Determining thelawyer’sDetermining ethical responsibilities whenhe First, thisopiniondoesnotimposeanaffirmative duty (b)A lawyer may reveal suchinformation to theextent (b)A Alawyer shallnotreveal information relating to rep- (a) 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 the lawyer reasonably believes necessary: tation, andexcept asstated inparagraph (b). outtherepresen-pliedly authorized inorder to carry consultation,after except for disclosures that are im- resentation ofaclient unlesstheclient consents (1)to prevent theclient from committing acriminal (1)to imminent death orsubstantial or bodily harm; that thelawyer believesact islikelyto result in 1.6 CONFIDENTIALITY OFINFORMATION1.6 CONFIDENTIALITY sisting aclient whoiscommitting anongoing, continuing to avoid anynecessary as- to disclose to facts duty the court Pursuant to Rule3.3(a)(2),Ala.R.Prof. C.,thelawyer hasa firmatively by disclosemisconduct aclient: ever, obligations onthelawyer to Rule3.3,places af- certain ofthepersonal representative.without thepermission How- orany thebeneficiaries otherinterestedcourt, third party ofthe personalrepresentativeclose themisconduct to the Pursuant to Rule1.6,alawyer would notbeallowed to dis- (d)In an ex parte proceeding anex otherthanagrand parte jury (d)In Alawyer may refuse to offer evidence that the (c) dutiesstated inparagraph (a)continue to the (b)The Alawyer shallnotknowingly: (a) or not the facts are adverse.or notthefacts tothe tribunal makeaninformed decision,whether to thelawyer known which willenable material facts proceeding, alawyer shallinform ofall thetribunal lawyer reasonably believes isfalse. wise protected by Rule1.6. compliance requires disclosure ofinformation other- conclusion oftheproceeding, andapplyeven if (3) offer evidence that thelawyer to knows befalse. to(2) failto when atribunal discloseamaterial fact (1) makeafalsestatement orlaw ofmaterial to fact a (2)to establishaclaimordefense onbehalfofthe (2)to reasonable remedial measures. comes ofitsfalsity, to know thelawyer shalltake alawyer hasofferedIf material evidence and bynal orfraudulent theclient; or act to avoiddisclosure isnecessary assistingacrimi- tribunal; cerning thelawyer’s representation oftheclient. to respond to allegations inany proceeding con- inwhichthe client wasupon conduct involved, or charge orcivilclaimagainstthelawyer based the client, to establishadefense to acriminal lawyer in acontroversy between thelawyer and RULE 3.3.Candor toward the Tribunal sonal representative to engageinthemisconduct. sations orallegations that heassisted orallowed theper- withdrawal, thelawyer helpsto shieldhimselffrom any accu- order anaccountinging that thecourt uponthelawyer’s tative inany orfraudulent criminal Further, acts. by request- doing so, thelawyer avoids assistingthepersonalrepresen- order anaccountingquest that thecourt oftheestate. By withdraw from therepresentation and, uponwithdrawal, re- representative refuses to doeither, thenthelawyer should the personalrepresentative’s thepersonal If misconduct. misappropriated fundsorto voluntarily discloseto thecourt persuade thepersonalrepresentative to eitherreplace any to Rule1.6. As aresult, thelawyer’s onlyrecourse isto seekto pursuant tomay thecourt misconduct notdisclosetheprior situations where isnotongoing, themisconduct thelawyer such the misappropriation In ofestate thefact. assetsafter gation to to thecourt. disclosesuchconduct estate assetsisongoing. so, If thelawyer would have anobli- whether thepersonalrepresentative’s misappropriation of resentation.” As such,thedilemmalawyer faces is make adisclosure istheequivalent ofanaffirmative misrep- R. Prof. C.,states, “[t]here are circumstances where failure to As orfraudulentcriminal theComment act. to Rule3.3,Ala. However, more thannot, thelawyer often of onlylearns L Design andMarketing Services Endnotes 0 Obviously, if the10. lawyer is hired by a beneficiary or other interested party, the 2. Unless otherwise indicated, Unlessotherwise allreferences to a “Rule” herein are to2. theAlabama .Jeffrey N.Pennell, Representations Involving Entities: Who Fiduciary Is the 7. Virginia L.Blackwell, Conflicts ofInterest When Attorney An Represents Es- An 5. The onlyexception beingwhere thelawyer conspired with,approved orac- 4. .The Michigan Court of Appeals recently 8. affirmed the entity theory of representa- .However, a number6. of state courts have specifically held that an estate is not a The Alaska State Bar,3. however, did note that for purposes of taxation, an estate is .Peter M. Wright,9. 1. 300 North Dean Road, Suite 5-193 • Auburn, AL 36830 AL Auburn, • 5-193 Suite Road, Dean North 300 Rules ofProfessional Conduct the trustee of an express trust, a guardian, conservator or attorney-in-fact. mission expresses no opinion herein on the duties owed by a lawyer representing representative in a probate administration, except as otherwise stated. The Com- This opinion is limited to questions regarding the representation of a personal beneficiary or interested party would be the lawyer’s client. Birmingham, Alabama. tion in Client?, 62Fordham L.Rev. 1319(1994). separate legal entity. tate, 27J. Legal Prof. 141(2002-2003). tively engagedinfraud committed by thetrustees. treated as an entity. 334.799.7843 • • 334.799.7843 In re Estate of Graves Sales Support Material Product Packaging Print Ads Product Catalogs Brochures Websites Logos Ethics Issues Facing the Fiduciary Attorney m o c . k n i l p a t . w w w , 102709 MICA (Mich. Ct. App. 2009). as theyexist at thetimethisopinionisadopted. Professional Portfolios P.O.P. Displays Billboards Media Kits Publication Design Trade Show Exhibits , Sirote & Permutt PC, www.alabar.org 393

T H E Alabama Lawyer 394 T H E Alabama Lawyer September 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 office. announces the opening of a Birmingham associate. that Chadwick T. Barnett as anassociate. announces that William J. sinor abbot, Jr. matthew W. nicholson is now an assistant attorney general. Health sociate office. intheBirmingham Craig d. Lawrence, Jr. Among Firms Hill Hill Carter franco Cole & Black The fisher Law firm PC Law Offices of david m.Cowan LLC Campbell Law PC The adams &reese alabama department of mental announces that joined thefirm. announces that announces that joined asanas- Edward C. Hixon and r. Taylor joined asan announces joined bree ford compliance officer. joined asgeneral counsel andchief lanta announces that James P. Curtis form that it joined with joined as associates. The firm announces Chase malone formed March from the Sixth Judicial Circuit and shareholder intheHuntsville office. Christopher L.Lockwood Wilmer &Lee Pa &Bur- glick simpson, mcmahan, Preferred Capital securities The announces that Lindsay P. Hem- malone & nelson LLC. is now apartner. Hon. Charles r. malone malone & associates PC and mark C. nelson PC Jessica W. schaub announces that is now a retired in of At- . r. to L Court Reporting• Videography •Videoconferencing· Worldwide Scheduling• Trial Technology• Conference Rooms

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