1111.61, No. 1 Ja11uary 2003
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Name: ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Add~ss : ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~- City, State, Zip------To order:fax , mailor returnto a CLE Representativeat any ABICLEseminar T H E Al, AB A iifA L A W YE R Vol. 64, No. I I January 2003 On the Cover: Shnmp boot otsonset. ofl'!J>or 23 Alabama State Bar Takes Top PR Award 25 Mobile Bar Association Sponsors Presentation of "To Kill a Mockingbird- By Lawrence 8. 11:;lt 30 Fall 2002Admittee s 38 Alabama Code§ 25-5-11: A Narrow Cause of Action Against Co-Employees By Kovifl IY.l'a/1 011011d William I.. Campbel/, Jr. 49 War Stories 50 Spotl ight on a Section: Family Law Section Celebrates 16 Years of Service By Robin L 8111rttllQII(/ Gordon Balley 52 Alabama's New Mortgage Brokers Licensing Act By V.Lynne Wmd/,a,n 58 How ell Heflin Presents the Maud McClure Kell y Award 61 Janie L Shores Receives the Maud McClure Kell y Award 62 Book Review: Hugo L Black: Justice for All Ravil1wedby Jtmie.i L Noles, Jr. 65 2002 Pro Bono Honor Roll JIii \l\lt\\l\ /\\\l/H 5 TheAlabama State Bar.PO. Box 4156 , Montgo.-.ery. Alabama36101·4156 . P'1one(334) 269-1515 • www.alabar.o1g flobcrlA. Hulfak.w ..._.._,__ ..... ,,_,_,_,,_, ______,,_ ,,_ _,._ ,,,_ .Olllir& £di10, THE ~ Shiroc:.t:OePao&a-·- ··- ·--- ·--- ..-·-·-·- , ...... -,- Vlct-OiU&Associat1tfll10, Su1:ar1H. we:s__ ,_,,_,_ .....- .... --··--·--- ·-··--.Sti1tt Ual$C)'I& Cof!m1111C11icrti Oi1fltli,- ALABAMA Maig3retL MllrpiYf_, ,_ ,,_ ,,_ ,,___ ,,_ ,,_ -··- ·- ·-S1alt liaison& M.an39ingEii! Of 81>11rd of Editors Hal. PameoW. S.ICNI~MolitO«'O'\' • JoMT c...... ~ e;rnw,ghom• Cwlos D.CO io,lllnnl"Oham • P,tor A . 0.H1'buyn.1"*11, LAWYER c;r; • LindaG- FIi~ Birmlrq,am• lonlJ - AI.All/\MA STAT£ BAR HEADQ UARTERS STAFF 415 Dex,..-A""nue.Moo,go mcry. Al. 3(,1()4(334) 269-1515 • FAX\134) 261-6310 • E-maa: info@al>b:lt,Ofl! () Memorials \Vebsile: www.alatw ,org ~,. 20 E.t«uth'COl.tcdot , ..--···-·---·····- ·-··· ..KcilbU . ~n Dittttl)r or ;\d1Nniom ..._,, , __ ,___ , OorodiyD . Joh1UOO Us.«111h-c A$ssiit11nt ·······-··········-·····--·~ truprcl Boooe Admissioos Adm.inistta1I,"'Ais~i.S'3llt$ ...... llcif,ti A lvo ln(ormAlioaTedtno'°8,,)' Oll'tdor _ ...... Jason IL JoBts Sooin Dou,gl:i5 Ditc(:1« o( PfQlfll1)J ...... ,--· ..•.&lw ntd M. Piutcr.lOa l:lw Office M1t.1w.gcmcmA.fflJ,1n.UCC AdminiJll'IW\"CAnis l.1111(Of Prov,m')···-- ....R il.\ (it11y P1op,un Oir«i.or.___ , ...... __ ,,.,_..t...nwuA. c~ Uookb:q,c,...... , ....--, ..-,., ...... , .,___ ,,,_,Cble Stinl'I« Law,u Rcfcml Scettwy ...... _ .....Cwo l Thorntoo lA!glslalfre Wrap-Up )tllndatoryConLi.nuili.g Legal ASB n>u.nd:t.ttoBAuistan •~-...... - ...... Ant1 R.it 1cnc.K1t Oraph.il:3Aru Dir«tDr.. - ...- ,.- ,.,- ...... 1'obggic Scu ller 11111 Edlk::atlonOirccco, - ·······-- ..·-·-- ...... Kun Olhw W:ird • 24 Grnphk,Arts ~ 11n 1...... JtOOerkk:Pnh m CLEAdtt1ln.lntn1h ·e.AuiJIIJl.1- .•, ...... ,_..... Al1gtc Cro'l'-c Rttcpdo11l!it- ·····-· ..-- ..· -·······-...... Slt' plwinieOg.lellby CLE S«tt:wy ·-·····-..···· ····--···· ····•Christinal.law«:l)CC. AlaOO.mnL,,wyc:r A l..\l>liantt ~m Dlffl.:IIJr orCOdlll'IUllitatiafls & Di,etttir__ , ...... - ...... JeMnc Marie Leslie (8-34·7S76) Public lafonoatioo ········-···- ······""''"'"SuMnH . Atl~ LOMAP 111ldALA~ Opinums of tire General PubliC111ioMDirce1or .... ,- ...... ,- ...~tnrpte1 L Murphy Adm.ittl.stm.i\'CAsi;;ist.'Ull .,...... Slllldni Clement, Mcm1:,c:t\,hipServices, Dirtetot .... - .....-,.,_ ...... Dia:11eLod.0 Afa~ 1Js;iL,n-w f'oontllltiM. In c. Dittt1or- .....Tnk:y DMi.el A Counsel Mcrnbct)h1p Adtnlttl~-:.ivcAs$lswt _,, \lym.1 ~kJ-kruy ALF Adminisuoth-c,A.ssii.1:1m...... Jc ·nni(er011cc h1L" ProHoc V',cc A1Jmi,u..'\1111 1ivc Affl.wini.__ Jtaty Ccmtu Al~banu0!11tcr (or- Dlf.11t1tc 26 Man1-hlp & CPRCi 6 JANUARY 200) THE UNIVERS ITY OF ABjCLE ALABAMA SCHOOL OF LAW Calendar for SPRING 2003 FEBRUARY 6 Appellate Practice - Birmingham 7 Employment Law - Birmingham 21 Banking Law - Birmingham 28 Nursing Home Litigation - Birmingham MARCH 7 Elder Law - Birmingham 13 Commercial Real Estate - Birmingham 14 Workers ' Compensation - Tuscaloosa 21 Advanced Family Law - Birmingham APRIL 24-26 Southeastern Corporate Law Institute - Pt. Clear MAY 2 Products Liability - Birmingham 9-10 City and County Governments - Orange Beach 23 Legal Research/Internet - Tuscaloosa JUNE 6-7 Bridge the Gap -Tuscaloosa 26-28 Litigation Tips for Trying an Environmental Tort Case - Walt Disney World in Florida 1111 \I\H\\I\ l\\\)IR 7 FredD . Gray CivilRights-Past, Present andFuture, Part II (This is the second installmen t of a three-part series adapted from a speech given to the International Society of Barristers in 2007; the first part appeared in the November 2002 Alabama Lawyer .) Personal History and the Birth of facilities for African-Americans while still keeping the races separate: Alabama would help pay tuition. room the Civil Rights Movement and board for African-Americanswho went to school el DICtell you a little bit abolll bow l became somewhere else. Thac's how I happened to gel my law involved in this whole business. I did not stan degree ac Case WesternReserve University in L out wanliag to be a lawyer. I did not know any Cleveland, with the help of the State of Alabama. lawyers. I was preparing for a nice, safe position lhat As I look back on it now. I wonder how in ~1e world African-Americanscould have in the late 1940s: I was a boy. who al chaLtime was abolll L9years of age, going 10 be a preacher and a teacher. My DIOlhcr could have thought or such a plan. I hadnt 't even old packed me up and sent me up lo Nashville lo one of my mother that I bad applied lo law school. When I our church schools so l could learn how to preach. received the acceptance lcuer, I gave it lo her during While there in school. I traveled all over the country dinner one evening. She read it and said, ''Well. Mr. with one of our old pioneer preachers, raising funds for SmarLy, now that you've been accepted, where are you the school and rccruiLiog student5. When I finished going to gel the money'/" Then she went out a.nd training in 1948, I returned home to go to college at helped get lhe money. Alabama Slate. the historically African-Americancol So I was privileged enough 10 go 10 CaseWestem lege in Montgomery. f lived on the west Side of town, Reserve University, but I always had the intention of and Alabama Statc was on the east side of town, so I returning to Alabama. I had enough sense to stop by used bus lJ'llllsponationat least twice a day, and some Columbus and lake the Ohio bar ex.am j ust in case. But times as often as six times a day. J saw so many of our six weeks Inter I took !he Alabama bar exam. The people being mistreated on the buses. Alabama examiaers in 1954 assumed lhal one little Those experiences on the buses awakened DIC. It African-Amecicanboy from tile gbe11osof suddenly struck home that cverylhiag in Montgomery Montgomery wouldn·t rock the boat and couldn·1 hurt al that time was segregated based on race. and if a per anything. I passed both bnr exams the first lime son of color had a claim against a white person. there around. was nobody who would even handle the case. So I Less than six months later. in March J 955, l repre decided that, in addition to saving folks' souls, I need semed a 15-year-old girl named Claudeue Colvin. ed to give them some earthly help. I made a secret Mosl or you don't know of Claudelle Colvin, bul nine pledge lhal l would become a lawyer, return 10 months before Rosa Parks was arrested, Claudelle Alabama. pass the bar exam. and destroy everything Colvin was arrested under very s.iDlilarc ircumstances. segregated r could find. Coming from school. she boarded a bus in downtown I couldn'Lauend the law school ac the Universityof Moncgomery.On the way home and after one block, Alabama then because of my race. Alabama. like most she was asked LOgive up her seal lo a white man. She of tbe soulhem stales. had a plan that would aUow il to refused. and they dragged Claudelle off the bus. I rep meet lhe requirement of providing equal educational resented her in the Juven.ileCoun of Montgomery 8 JA NUA RY 2003 County. Everyone knows about Rosn ally washed up omo the shOn,sor such Human and Civil Rights Multicultural Pmts and about Martin Luther King. but faraway places a.~the Bnhamas. China, Ccmer. When fully developed, the Center no one knows abour Cloudcue Colvin. South Arricn. the Soviet Union. nnd even wlll educate the publicon the con1ribu- She .rlll lives in rhc Bronx. Great Britnln. 1ionof ull lhe ethnic groups in our :U'cU Throughout the civil rights movement ln this brief overview of history. I need who have assisted in bringing ubout there were hundreds of individuals such to mention one more chapter- the infa. bumnn and cMJ righlS. In the next year as Claudette. people who took s1ands and mousTuskegee Syphilis Swdy. By the or so. ,isil0<$ to Tuskegeewill be able to made sacrifices. but whose names never early 1970s I had tried hundn,ds or= stt nil of that nrone place. • nppenr in print and whose pictures never against discrimination by ci1iesund coun nppenr on television. ·n1ey are the 0 11cs ties in Al11b:mmnnd by 1hestotc ilsclf, who laid the foundation nnd who gave us and in mony of 1hosecase.~ the federnl the morol cour.igc. Jf there had been no governmcnl wnsright on our side. Then l Clnudcuc Colvin. for example, we miglu woke up one day in 1972 and learned 1ha1 llOl have been prepared 10mount the bus in my owncounty of Macon. the fcder.!J boycou after Mr5. P.Mkswas ru:restcd , government had financed n 40-yc.,r pro CLE We hnvc 10 remember the thousands of gram in which i1 had used 623 African puoplc who bnvc ~offeredand even died. Americ.in men. some of whom had Opportunities A 101 of events happened in syphilis and wmc of whom did nol. lO Mont~'Omeryin a short period of time. study lbe course and effccis of unuc:ued TheAl abamaM andatOf'fCI.E Let me gr.-eyou a quick chronology: On sypbilis-w11hou1 the knowledge or con Commissioncontmua lly evaluates September 7. 1954. Fred Gray. then 23 sen1of the men im'Olved.So I had 10 file years of age, was udmiued 10 the procticc suit against 1he United S1utcs a11d approves in-state.a s well as of luw in Alabama: on October 30. 1954, Government. In addition 10gelling a fair nallonwide, programs whicha re Mun In Luther King. Jr .. wns installed as seulemcnl (for thQsedays). the 1 II I -\ I \ II \ \I I I \ \\ • I- H 9 KeithB . Norman m < ;II; ;:;: =:r"' m z 0 9 Alabama'sImplementation of the I» ::, NationalAction Plan On Lawyer ConductAnd Professionalism n 1996.lhe Conferenceof ChiefJustic es p.'ISscdu sevenareas bas subc111egoriesof ,peci fic recommendn· resolutioncalling for n national study nnd 11elion rions.The nmionnlnc1ion plnn 's rccommcndruions I plun 10improve lawyer conduct and profcs,ionnlism. have been included here ror you 10 review.Because of TI1isre_,;o lution wa.~in re>l)On.se10 the nzc,o1nme11clmions the conscious cffons of srn1c bur leaders aud our conwincd in lhe 1992Americun Bnr A, socinllon (Al3A) supreme coun, only IIfew of the nc1ionplan's recom McKuy CommissionR epon emilled,"Lnwyc r mendationsremain for us 10 implement or address. Rcguln1ionfo r a NewCentury.'' Over the Ins,few yeurs. Becausework remainsi n severalarens, Includingmen theABA's Ccmcr for ProfessionalRespon sibility1hrough toring, public accoumabili1yand publicoulrellch, ils ProfessionalismCommince and JoimCommiuce o n effons IO fiU the rema111inggops will continue. LawyerRegulation b3\'C cooperotedwith lhe Conference Alnbamn lawyers should be plcast,d the supreme of ChiefJustices io dm'Clopa pl!UIthat wouldlllddrcss coun and the Slatebar ha,'C mode much progressin conccmsO\tt lhe decline in profcsslon.,lb.min lhe bar implementingso many clerucnl5of the national action Wldlhe concomiwudrop in lhe public'sconfidence in plan. Thffl: art no overnightcures that will chllngethe lhe professionand justice5)'Slel1I. Afterm:iny meetings present cornfilionof the professionor improvethe Md a gie:,1 deal ofh:url work, inJamwy 1999. lhe public's attitude llbout 1hejudicial system. Over time. Confcrcnccof ChiefJ ustkes ndoptedthe No1io11alAct/011 the measures cttllcd for in the nmionalaction plan and P/011011 Lawyer Conduct and Pro/ess/()11t1/i,,,,~An imple already implemented in Alabamawill fos1er improve mcnwtions1n11egy was adopieclin Augus12001. ments in lawyer conduct nnd help restore public confi· The nntionr~ nc1ionpl an conmin~ blnckl cucr recom dence in our professionn nd justice system. • mcndatlons coveringseven broad areas. Et,ch of lite 10 JANUARY l O O l National Action Plan, Black Letter A. Professionalism. Leadership and Encourages innovativeCLE in • Establish intervention systems Coordination a varietyof practice areas; for disabilities and impair The appellate court of highest juris Encouragescost-effective CLE ments 01herLlian s ubstance diction in each state should t.~kea fonnats; abuse or expand existing LAPs leadershipro le in evaluatingthe con • Encourageslbe integrationof 10cove r non-chemical depend temporary needs of the legal commu ethics and professionalismcom ency impain11ents: nity with respect to lawyer profes ponentsin all CLE curricula: Providen1on itoringserv ices sionalism and coordinatingthe activ • EncouragesCLE componentson for lawyer.;referred frora the ities of the bench. the bar, and the disciplinury system: and law schools in meeting tl1ose needs. legal practiceand office man agement skills, including office Specific efforts should include: • Provide career counseling for managementtechno logy: and la\vyersin c.ransiLioo. • Establishing a Commission on Teachesmethods to preventand Professionalismo r Other agency 5. Lawyers Entering Practice for the avoid malpracticeand unethical under the direct authority of the Fir,1 Time - Transitional or unprofessionalconduct and appellate courtof bigllCSIjurisdiction; Education the consequencesof failingto • Ensuring that judicial and legal preventand avoidsuch conduct Judicial leadership should support tl1edeve lopment and implementa education makes reference to 2. Law Office Management broader social issues and their tion of programs that address the impact on professionalismand State bar programsshould suppon practical needs of lawyers inune legal ethics; effortsto improveJ aw office effi diately after admission 10 the bar. ciency. Effectivesupport includes: Effectiveprograms for newly Increasing the dialogue among the admitted lawyers: Jaw schools, the courts and the Establishing a law office man practicing bar through periodic agement assistance program; Mandatea coursefo r new meetings; and Providing assis1ancewith daily admiuees that covers the fun damentals of law practice; Comlating the needs of the legal Jawoffice routines; and profession- bench, bar, and law • Providing monilori11gservices Emphasize professionalism; schools - to identifyiss ues, assess for lawyers referred from lbe lncrease emphasis on develop trends and set a coherent and coor disciplinary system. iog post-gradumion skills; and dinated directionfor the profession. 3. Assistance with Ethics Questions Ensure the availability of CLE B. Improving Lawyer Competence Lawyerss hould be provided with in office skills for different I. ContinuingLegal Education (CLE) programs to assist in the compli office settings. ance of ethical rules of conduct. Each state's appellate coun of State bar programs should: 6. Mentoring highestjurisdiction should • Establish an Ethics Hotline: Judicial leadership should pro encourage and support the devel mote mentoring programs for opment and implementation of a • Provide access 10 advisory both new and established high-quality.comp rehensive CLE opinions on the Web or a com lawyers. Effective programs: program including substantive pac1disc (CD); and programs on professionalism and Publish annotated volumes of • Establish mentoring opponuni compelenee.An effective CLE professionalconduct. ties for new admittees: prognun is one that: 4. Assistance to Lawyer.;with Mental Establish mentoring opportuni Requires lawyer participation Healthor SubstanceAbuse Prob lems ties for solo and small firm practitioners; in continuing legal education Lawyers need a forum to con programs; fronl their mental health and sub Provide directories of lawyers • Requires that a certain portion stance abuse problems. Stale bar who can respond 10 questions of the CLE focus on ethics and programs should: in diffcrenLpractice areas; professionalism; Create a Lawyer Assistance Provide networking opportuni • Requires 1ba1all lawyers take Program (LAP) if one does not ties for solo and small firm Ll1e mandated professionalism exist; lawyers: and course for ne,v adntittees; Fund the LAP through manda Provide technology for Monitors and enforces compli tory registration fees: exchange of information. ance with meaningful CLE Provide confidentiality for C. Law School Education and Bar requiten1cnts; LAP programs; Admission T II f;· l I. A IJ \ \ f \ I. \ n t f R 11 National Action Plan, Blacl< Letter (continued) l. Law School Curriculum The state's system of lawyer reg • Appoint a board or 1t11s1ees, In preparing law students for legal ulation should include procedures composed o{ lawyers and lay practice, Jaw schools should pro for $Cferringma tters involving persons. to adminis1erth e vide students with the fundamen lesser mis,;onducl tO an appropri, fund; and tal principlesof professionalism ate remedial program. Such pro Require the board of 1n1s1ees and basic skills for legal practice. cedures may include: to publicize U1efund 's exis 2. Bar Examination • Required participation in a law tence and activi1ies. office managemcn1program: The subject areas tested on the 5. Other Public Pro1ectionMeasures examination for admittance to the • Required participation io a The sta1e's system of lawyer reg state bar should reflec1 a focus on lawyer assis1anceprogram; ulation should include other fundamental compe1enceby oew • Enrollment in an "ethics appropriate measures of p_ublic lawyers. school" or other mandatory protection. Such measures lhal 3. Character and Fitness Evaluation CLE; and the Court should enact include: Law schools should assis1 bar llnrticipation in a fee arbitra Mandatingfinancial n.'COrdkeep admissions agencies by providing tion or mediation program. ing, trustaccoun1 tnain tenance complete and accurate infom1a 3. Disc.iplinary Sanctions and overdmftnotiJication; ii()n aboui the character and 61- The range of disciplinary sanc Eslllblish a system of random ness of Jaw students who apply tions Should be sufficiently broad audits of trust accounts; for bar admission. 10address the relative severity of Requiring lawyers who seek 4. Bar Admissioa Procedures lawyer misconduct, including coun appoinunems 10 carcy Bar admissions proceduresshould conduct uru:elated 10 the lawyer's malpractice insurance; be designed 10reveal instancesof legal practice. Disciplinary agen Collec1annual information on poor cbarac1er and 6mess.lf cies should use available national lawyers· crust accounts: appropriate,bar applicanis ,nay be standards 10ensure intersta1e Studying ibe possibility of consistency of disciplinary sanc admitted on a conditional basis. recenilication: D. Effective Lawyer Regulatioa tions. All public sanction should be reponed 10 ibe National Providing for in1eri01suspen I. Complaint Handling Lawyer Regulatory Data Bank of sion for threat of harm: and Information about 1he s1a1e'ssys the American Bar Association. • Establishinga 30-dayno-comae, tem of regulation should be easi 4. Lawyers' Funds for Client rule. ly accessible and presenied 10 Protection 6. Efficiency of the Disciplinary lawyers and ibe public in an Sys1em understandable format. The disei The s1a1e's system of lawyer ,;_eg plinacy agency, or central in!Jlk.e ulation should incJude a Lawyers' The state system oflawyer regula office if separa1e, should review Fund for Client Protection 10 tion should operate effectively and complaints expeditiously. Mailers shield legal consumers from eco efficiently. The Coun should enact that do no1 fall under the jurisdic nomic losses resulting from an procedures for improving lhe sys tion of the discipl inary agency or auomey•s misappropriation of tem's efficiency, including: do not state facts that, if 1t11e, Jaw clienl and escrow money in • Providing for discretionary would constitute a violation of lhe practice of Jaw. ralher than automatic review of the rules of professional conduct Rules or policies of the appellate bearing commi1teeor board should be promplly referred to a court of highest jurisdictionshould: decisions by the Court: more appropriate mechanism for • Ptovide for a s1a1ewidecl ient Pr.oviding for discipline on resolution. Complainants should protection fund; consent; be kept informed about the Sllltus of complainis at aU stages of pro • Require that the fund subsum Requiring respondents 10 disci· ceed,ngs, including explanations tia.llyreimburse. l osses result, plinary investigations 10be about substnntivedecisions made ing from dishonest conduct in reasonably cooperative with concerning the complainL the practice of law: investigatocyprocedures; 2. Assistanceto Lawyers with Ethics Finance the fund through a Establishing time s1andards for Problemsor "Minor' Misconduct mandatory assessment on case processing; (e.g., acts of lesser misconduct lawyers; Periodically reviewing the sys that do QOI warrant lhe imppsition • Designate the fund's assets 10 tem 10 increase efficiency of a disciplinary sanction) constitute a ltllsl: where nec~sary; 12 JANUARY 2 00 3 National Action Plan, Black Letter (con1inued) Eliminnting duplicative review Provide a "Public Li11ison" Es~1blish an "l.lmeritus in the procedures for de1em1in office or officer to scr.c inn Lnwyer" pro bono program: ing wh<:Utcr10 file formnl clearinghouse funchon; Provide ins1i1111iorutl and tn charge<; Oi,tnbuie public educauon lind suppon for !he coorrhna· AulhorilJng disciplinary coun llllltcrials in places commonly tion of pro bono programs: nnd sel 10dismiss compla1111s sum accessible to !he pubho; Explore funding ul1cma1ivcs to marily or after iuves1iga1io11 Include public speaking on the support pro bono prngram~ with limited right of com· topic or prore..~ ionalism on !he ~ - Public Opinion plaiMnt:-10 ,;.,.It review: agenda for bar n,,socia1ion To gauge pubhc lllf \I\H\\I\ /\\\)IN 13 National Action Plan, Black letter (continued) ADR programs provide appro lawyer cooperation in resolv their responsibilities. Specific priate educarion for lawyers ing disputes over frivolous fil . effol'lSof interstate cooperation about different types of ADR ings, discovery, and other pre include: (e.g., mediation, arbittation): trial matters: Continued reporting of public • Establish standards of ethics Encouragejudicial referrals to sanetions 10 ABA National and professional conduct for the disciplinary system: Regulatory Data Bank; ADR profession~ls: Educ.11etria l judges about the • Using the Westlaw Private File of Require lawyers and parties LO necessary relationship between the ABA National Regulatory engage the services of ADR judicial involvement iu pretrial Data Bank: professionals who adhere to management and effective • [nguiring on the state's annual established standards of ethics enforcement of pretrial orders; registrnliO!lsta tement about liccn and profe.~sional conduci; • Encourage increa~edju dicial sure and public discipline in oilier • Encourage trial j udges to supervision of pretrial case jurisdictions: implement and enforce compli management activities: and ·Providing reciprocal recognition ance with ADR orders: anti Establish clear expectations ofCLB: Educate cJienlSand the public about lawyer conduct at the Establishing regional profession about lhe availability and desir very first opponunity. alism programs and efforts: ability of ADR mechanisms. 3. High Profile Cases Recognizing and implementing 2. Abusive or lJnpwfossional 1n high profilecases. Ja~ers the lnteroatio1Jal Standard Lawyer Litigation Tactics should refrain from public com Numbering System created by To prevent unprofessional or abu ment that mightcompromise the Martindnlc-llubbe ll and the sive litigation tactics in the court rights of liligarusor distort public American Bar Association to room. the coun and judges should: perceptionabout the justice system. inwrove reciprOcal disciplinary Encourage consistent enforce G. loterstate Cooperation enforccn1ent; and ment of procedural and evidcn The appellate courts of highest Providing i1tfonnation about bar tiary mies: jurisdiction should cooperate 10 ad,rtission and admissio11on Encourage procedural consis ensure consistenoy·amoog jurisdic motion (including recipwcity) on tency between local jurisdic iions concerning laW¥erregulation the bar's Web sire. • tions ,vithins t.ates; and professionalism and 10 pool Adopt court rules that promote resources as appropriate to fulfill The software designed by lawyers for lawyers We can make your Unconl•S1.c:IOfvoree In AlobllN 2.0 Cff•let;: child support and uncontested • Cenmcaie °'Ohlorce divorce cases as easy as 1 . .. 2 ... 3 ... • C:S-..7 · C"*ISl4)p0tl lnbff'la110nSh.eec • CS... 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Tms COMPETITIVELY PRI CED PLAN INCL UDES: •:• Deductib le choices of $1,000, $2,500 , $5,000 & $10,000 per calenda r year •) 80/20 In- Network and 60/40 Out-of-Network PPO Plan , or 70/30 ln- Network and 50/50 Out-of-Netwo rk PPO Plan •!• $3,000,000 per person maximum (some restrictions apply) +>En dorse d by the Alabama State Bar Assoc iation DON'T 'MISS OUT ... Call or fax your request for more information (including fea tures , costs, eligibility, limitations and exclusions) TODAY to: PROFESSIONAL IN SURANCE ADMINISTRATORS, INC. An Insurance Specialists, Inc. co,npany, a.G eorgia corporation P.O. Box 2827 • Norcross, GA 30091-2827 800-24l -7753 • FAX: 866-314-9088 *Applicantsare subjectLo the medicalunderwriting guidelines of New YorkLife. This will not affectaoceplance to the plan but may affectrates at Limeofissuc. Warren B. Lightfoot has been elected presidencof Lightfoot is a panner in the Binningham finn of tbe American College of Trinl Lawyers. Founded in Ligh1fooLFrank lin & White. Mewas i11ducted as a 1950. the College comprises the best of the trial bar fellow of the College in 1984 and has previously from the United States aod Canada. Fellowship in served as a member of the Board of Regent,;, lbe the College is extended by invi1a1iono nly. and only governing body of the College. for five years. after cnreful investiga- Lightfoot was president of the Birmingham Bar tion. 10 those experi Association in J 990 and the Alabama State Ba.rin enced trial lawyers 1996. who have mastered the an of advocacy and Linda S. Reid. CLA, senior corporate legal assistant whose professuonal at Sirotc & Pem1tmPC , was recenily selected by her careers bave been peersa s Leg:ilAssistnnt of Year2002 by the marked by the highest Alabamu Association of Legal Assistants. Tbc award st.mdards of ethical is given 10 a paralegal in Alabama who hns made a conduct. professional lasting impact on tbe paralegal profession in lb.is isin, civility and coJle. sta te. The Alabama Association of Legal Assistants giality. Lawyers must was fomicd in 1982 to encourage a high order of haven minimum of 15 ethical and professional attainment, funher the legal years· trial experience educution of the members. cooperate with state and before they can be con local bar associations. and assist in forwarding the sidered for Fellowsllip. ll'tm>mH. l)g/11/00, aims and programs of their national organization. • TI MEL ESS WISDOM Aesop'sFables ,vere not u,rinen /or children- TI,ey were ,\ftlrtcnc o help h.:~cli.:rshnp rovc. [heir hv1.-san d the liveso( ,he people ,hose leadersserve. Aesop'sfables coax lc.~dc.rsro m:1kec hoices bct"·cc.n such [hings as greed and giving. arrognncc and humility, nnd selfish indifference and compassion. OrderToday: 1-800-577-9499 Papancon1o'sn c,11r elease, ,vith foreword by Robert F.K ennedy, Only $24.95 per book Jr., exrlore:;rl,o do~a,ls of the plus$3.00 S&.1-1e och item rilndcss wisdom left by Acsop. (Add Florida53 Jes cax i( applicable) He invites la,vye.rs,o dlink aix.111c c:harac:.tc:.r qualities rh1u; CIC we should both revere and revile in leaders. Or by check ro: Pap.,ntonio shows how Seville Publishing, P.O. Box 12042 Aesop'swisdom c-an bene.At Pensacola, FL 32590-2042 ln\vyersin tht:irnJfc a~ '"°'tdcrs. ,vu,.(J.Sc,•illcpublishi1lg.ccm-1 1 6 JANUARY 2003 ARK YOUR CALENDAR! International Conference on A ddictions For Legal and Medical Professionals 13.5 Hours CLE Dates: Februar y 1 & 2, 2003 Place: Montgomery Civic Center, Montgomer y, Alabama PRESENTATIONS WILL INCLUDE: "Addiction Screening for The Professional;" "Clinical, Medical and Legal Issues in Add iction and Childhood Trauma;" "Lawyers Helping Lawyers and The Firm;" "Professional Assistance Programs Case Review;" "Federal Law and Addiction ;" "Can Opioids Cause Addiction?" and "The Legal Ethical and Medical Issues Related to Narcotic Use." For more information, call the Council on Substance Abuse (NCADD) at (334) Z6Z.16Z9 (email: [email protected]) or contact Jeanne Marie Leslie at (334) 8J4•7S76. 1111 ,t\JI\\I\ /\\\)IH 17 Among Finns 77,. 1\/abtu,w lawy,r 110longDr p11bllsl1ts addrtssts 1111d1rltp/1ont numbtn u11/ess tltt a,mouncem,111 Alford, Clausen & McDonnld I. LC announces thac r,/ntu to tit• op•ning of a new firm or 10/0 practice. Elizabelb A. Cilrin. Mory Ablgnil Sessions and El. Jamt,; Koch hn"" joined lhc firm as associates. Pltas e colltinu~ to srnd in annnunc~n,e111Jand/or tJJMrrss clwngu to 1hrAlabama Stat, Bar Rkbard G. Brock Mnounces 1h01American Legal Mtmbu sl1ipDepartment , at (334) 261-6310 (fax) or Searcb L.LChas openediu chordbmnch office. in Los P.O. Box 671, Montgom•r:, 36101. Angeles. J.B. Atwoood, Jr., Mickey Gentle. Robert Gish About Members and C. Michael Selbert nnnouncelh e formncionof Appellate Attorney Cro 1111PC. und che mailing William Marsh Acker, ru announces 1heope ning address is P.O. Box 18035, 1216 Memorial Parkway. of his offic<'ac 20 15 1st Avenue. Nonh, Birminghnm North, Hunasville 35804. Phone (256) 536-3636. 35203. Phooc (205) 458- 1I 54. Wan,hl J. Batwn announces 1hc opening of her onice J acqueline E. Austin announces1h n1her dnughcer, a1 103ll. 2nd SlrCCt.Sylacaugn. Phone (2S6) 249-0903. J. Pratt Austin-Trucks. has joined her pr:icticeas an associate. A. Eric Johnston announces lhc opening of his office a1Highway 280 Eas1.Mc:idow Brook Corporate 8-lcy, Allen, Crow. Metlwln, Port is & Miles PC Purk. 1200 Corponue Drive. Ste. 107. Birmingham :innounccsth:11 D avid F. Miceli nnd Frank Woodson 35242. Phone (205) 408.$893. ha,-c become shareholders,nn 18 JAN UA RY l O OJ Dominick. Fletcher , Yeilding. Wood on nan. Wood. Kr.ndrick & Tomer L.P. Sudey. Spencer E. Davis, Jr. and & Lloyd PA ao.oouoccsllmt Arthur J. :umouoccslhat James L. l'aUJllo has Linda L. Howard announce thc fonna ll anos. Jr. nnd £.zro 8. Perry, Jr . bJwc joined the finn as an as. Stc11hcns1 Milliron s. Harrison & associncc. E. Cloyton Lowe, J r., Peter A. (;nmmons PC announce.~thni Deborah Gnmmms, Brent 0 . Hitson 8lldJohn S. Heusley has joined u,efarm ns an Webb & Eley PC announces tbru Lisa G. Oann announce!be fomU11ionof as:socinte. 0. Van Wagner bas become a sharehold Lo"•· Crummas, Hilson & Onna LLP. er w,lh the finn and that Gory L. wi1hoffices locatedal 3S00 Blue Lake Stockman & Bedsol, announcesthat Williford, Jr" Charles Riclinrd Hill, Jr . Ori,·c. S1e. 209. Binning/mm35243. Ellznbcch A. Stockman Im~become and Ashley Bawkios Freemon have Phone(205) 380-2400. nssoci111edwith the form. joined the finn as associnces. • 'J.,me and agarn, /he feaders rn cfecf/c:al/o.n ancl serurce. le,Ji1h mote th:cuhalf a ccn1111')'uudcr our bdc, )'OU roulclsiy weknow all thereis co know abo111uclc ln,ur.incc. Bue le", 1101 just about lrnowing our busint$S,h 's about knowingour dlems and earningtheir crusLOw · la11yershaw donejust that. lly ba,iog thr experienceaud insight10 pro1idc,ital undcr-..ncingsolutions. We're ratedthe numberone tidelniumncc compan)'in Mississippiand Alabam.i, 1cccivi ng 'unsurpassedliunnci:il sta bility"m 1ings.Timnk youfor putting your faith iu us. • MlSSISSIPPIVALLEY TITLE '· •• , • 1i-:suRAl,CECOMPANY 1.>.·,.~ J /,, ,.., 1111 ll lHIU\ / \lll/H 19 John Robert Hutson John RoberLHuison. a stalwan member and a forn1er did not have his ability 10 make the most of them. president of the Morgan County Bar, died May J8, lo Roben's passing, his children, bis partner, his 200 I, four days prior to the last annual meeting of the church, tl1e several civic and charitable organizations in Morgan County Bar. Both in his professional life and which he was active, and the Morgan County Bar a.II in his personal life, Roben exhibited a rare blend of lost a true friend and a willing helper. commendable trailS rarely united in one person: he wa., The Morgan County Bar expresses its deep regret frugal yet fair: he was candid yet charitable; he was and iis profound loss in the passing of John Robert unassuming yet forceful; he was indusll'iousyet invari 1-luison: it acknowledges with appreciation tl1ework ably calm; he was highly intelligent yet inlinitely that he did: and. albeit belatedly, it extends its sympa patient witl1those of less intelligence; be made the thy to bis children and grandchildren. most of his opportunities yet he was always consider - Ha111~yElrod. Decatur ate of those who either bad noLhad his opponunities or Ralph D. Porch On August 12. 2002, Ralph D. Porch of Anniston died. or his multitudinouscivic accomplishmenlS.W e can only A native of Sylacauga, Mr. Porch livedill Annistonmost mention a few of those organiwrions he worked for, each of his life. After December 7, 1941. Pearl Hll!borDay, with great leadership, vigor and passio11. Ralph, then a stadem at the University of AlabamaSc hool Porch was a long-time vestryman and senior warden of Law, almosti 1m11edia1ely joined the U.S. Marine Corps, at Grace Episcopal Church. He later joined the United anaining the rank of captain. That earned him the right to Methodist Church and served tb.creas a Sunday School participatein the Okinawalava. ~ion.o ne of tl1c bloodiest teacher, as a member of the Board or Stewards and and longestba ttles of WorldWar Il. whencehe emerged chairnmn of the Board of Trustees. At different times, with a bulle1wound in the leg and a Purple Heart. he sand ia the choirs of each church. After his Marine Corps discharge, Mr. Porch com As a Rotarian. he e..'U"Lleda 5S-year perfect ancn• pleted his law degree in 1947. He was selected to the dance pin, served as president of the Anniston Rotary FruTohOrder of J orisprudence. Ralph re1umed to Club and a.~di strict governor for tl1e entire state. For Anniston to serve over 50 years as a practicing attOr· decades, he was a board member in the Anniston ney with Knox. Jones, Woolf & Merrill and iis succes Salvation Anny and the International House of sors. He disting11ished himself as a trial auorney who Jacksonville Start University. also did real estate, conunercial and estate planning With former Governor Alben Brewer. Mr. Porch was work, retiring a few years before his death. influential in organizing the Brewer-Porch Cb.ildreo's After World War U, Porch jo ined the Alabama Center at tile University of Alabama, which ha.~ had a National Guard. The 31St Division was activated during tremendous and positive influence on ill 20 J A N U A R Y 2 0 0 3 Frank Howard Hawthorne The Alabama Srnu: Bnr los1one or i1s mos1 distinguished nnd Pioneer,. He was chuimmn of 1he March or Dunes in Mon1gmnc1y honornblc membcrs 1111April 8, 2002, upon 1hede.uh or Prunk in 1961 Additionally.he w:1snn active mcmbcrof1he Capil:IICi1y Howard Hawthorne or Mon1gomery. l H. Gerald Revnolds The state bars of Al11brimnand Floridu los1one of 1hcirmos1 edge issue.,a s 1ha1 body of low dcvdopcd over lhc nex1 30 dedicated member. when H. Gcndd Reynolds pa.,scd uway in ycur~. Tampa. Augu$t 20, 2002, 01 lhe young age of 62. Ocrre loved the law. the legal profe.,aon and lawyers I le Gcrre wns a nn11,eof Alexander Cny ond gmdualcd from dcvo1edsubstan1i>I enugy 10 the b,,ucnnen1 of our profc,sion Auburn Uni-'Cl'Silyin 1962. where be wa; a member or Blue working particulnrly 1111hc area of contanu,ng legal educa1,on. Key and ODK. He hod a distinguished record at Cumberland He woi.o regular partlcipan1in seminar,; around 1he country. l,nw School, grndu11tin&in 196S. cspecmlly his nn1ive, 1n1cor Alabamu nnd udopu:d slnl.e of After a few yeurs of privote praciicc in Alcxundcr City. Gem, Florida. Me wa. /Ill- \I \U\\I\ I \\\)IN 21 Robert E. Paden The Bessemer Bar Association, and Ille people or 1he Bessemer, and served iis in1crcs1swell from lhc 1970s until his Bessemer DMsion or JclTc,son County. Alab3ma, lost a clU58d· dea1h. er for individual nghlS. when Roben E. Paden, age 71. passed 111cCity of Bessemer. iis citizens and :momcys will not for away on June 16, 2002 . ge, lhc contribu1ionshe m.1dc10 1he bench and b:arof lhc Noa only was Mr. Paden a charter member of lhc Woodland Bessemer Division of Jefferson Coun1y. Aills Bnptisl Church. he was a long-standing member of 1he Mr. Pndcnalso proudly served as president of the Bessemer Bcs.wmcr Bnr Association. Alabnma Staie Bar and Bcs~mcr Bar Association, and provided guid:anccand advice 10 the YMCA Board of Directors. younger members of 1he Bessemer Bar, myself included. During the course of his cnrcer, Mr. Paden wns also :t member throughout bis career and life1imc. of the bourd or dircc1ors of FlrsaF inancinl Bnnk, nnd served ns Mr. Paden is survived by his wi fc, Be11y;sons Robert Shan nuomcy for 1he Chy of Bes.semcr for I 9 years, auomcy for Paden and Emmcu Todd Paden.a nd 1hcir spousesn nd children; Govcmmcnaul Utilities Service Corporalion, Cily of Bessemer 1ogetber wi1hbis sis1er, Eliwbeth Paden Brooks. He will be Industrial Dcvclopme111Board, and as the senior partner or 1rulymissed Paden & Pnden, and served his clienas well. - II. }add Fowwal.president, Mr. Paden wus a champion of the progress of the Cicy of 8t'tSC'111tfrBar AssociaJion G/en11F. Afa11rii11g Glc:onF . Mllllningwas born July 10. 1922 in HunasviUcand Glenn contributed g,,,atly 10those mo Alcxandrr. Jullnn Le:strr, Jr. Jon es, Kenn 22 JANUARY 2003 ALABAMA STATE B AR Takes Top PR Award :ich ycur. !he state organization of Alabamo llnd the Alabama Hospillll public relations professionals Association :ind with assiSUlllccfrom the E honors omsmndingeffons in AlnbumuOcparunem of Public Hculth the 11cldof pubUc relations. A panel nnd 1.hcA lnbamn Organ Center. 10 of public relmions prnclitioners promote future health care plan front ou1sidc 1he s1me judges ning. encouraging families 10 dis entries bagcd on planning, origi cuss hcahh care wishes and 10 nality. cremivity nnd effective prepare advancedirective$ now. ness. Entries may ttttive a rn!her than in a lime of crisi~. Mcd'1llionAwnrd. nt1 Award of Held in October 2001. ovcr200 Exc,.,llcnccor a Ccrti6carcof nnorncys. doctors and Olhcr McriL hc.,hh professionals received The Alnb,una State Bar's training and presen1edwork · di:rec1orof communications. shops across the s1111c.Nea rly SlL~an H. Andres (right), 17,000 free consumer guides received n Medallion Award for have been distributed since the "'Lll'EPLAN 200I :· This entry campaign beg3n and an inform- was 01$0 chosen as the PRCA ative Advance Health Oircc1ivcs Btst of Sl1ow. The judges consid video is now available upon c~ h 10 be the most ousstanding n:qut"Sl. of all the 166 entries rccei, Import ant Reminder About Your Continuing Legal Education Requirement If youhad a membernhrpstatus change at anyume during 2002. you may have been required 10 earn and report 12 hours of ClEcrecfn by December31, 2002. Mandatory C011unu1ng Legal Education Rules require auomeys who hold anoccupa11ooal license (regu lar membership) anytune during the calenda r l'llar 200210 earn 12 h ourso f CLEcredit If youare nol currem ly a regular member but werea regular member forpart of the yearvou a re still required 10 comply with MCLERules. (M CLERule 2.5) Forexamp le,if youwe re inactiveor helda specialme mbershipand converted to a regular membershipduring 20 02,yau are required 10 obtain12 hours otCLECfediL If you were e regularmember during 2002 but converted 10 special member or 10inactive status you arealso requiredto complywith the 12-hourCLE requiremem. Youare not required to obtain12 hours of Cl£ etedit if you are eligible to clarman exemption from the MCLERules. Yoor exemption. how· ever.must have been claimedon the 2002CLE llljlOlting form l'AIICIJ was marledto youin earfyDecember It you need t0 locateaJJ1)11Mld CLEprograms you may iequest a caloodarof approvedct£ programsfrom the ASBCLE depa1tmem 01 from rhe state bar"s Web site al www.alabar.otg. Callt heA labamaSt ate Bar'sCLE department at 13341269-1515.extension 158, 156 or 117, formore informalion. II/I \/,R\\f\ /\\\}IN 23 •11111 TheNew Legislature Rab111L Mc.Curley. Jr. hen lhe Legisln111reconvenes for its organi women lcgi~lators in the notion. This year lhe nwnbcr zational session Jnnunry 7. 2003. there will of women in lhc sen!ltedid not change. We still have i:D < W be 19 lawyers in the two houses. The only three. The women in lhc house of representatives Scnn1ewill be presided over by n non-lowyer for only inCl'CllSCdfrom eight to 12. =0 er the ~nd lime in over 50 ye.,rs. All of the lieutenant There arc now 64 Democnusand 41 RepubliCllllSin CD ;;:i go,'ffl!OI'$.since 1950, have been lawyers cxcc:p1for lhe house of rcprcsentnth·cs. The Senate has 25 r Jim Folsom(1987-1995) . These were; Democrat.~ nnd 10 Republican•. lo December, the Law IM1itutcheld a lhrcc,d;iy ori ns: n Onrcnce h12cr( 1947-5 I) entation for the newly-elected legislators. Thc first day, C :. fames D. Allen (1951-55) lhe 29 new legislators were infomied about bow to get -:cCD W.O. Hardwick (1955-59) bills drafted, ethical standards, stnff resources and leg .._ Albc11Boutwell (1959-63) islative rules. The following two dnys. all lcgislruors " JumcsD . Allen ( 1963-67) received briefings on the economic condition of the Albert Brewer (1967-71) state, how other states nre meeting lhc financial crunch. Jere Berisley ( 1971-79) homeland securi1y, 11nd0 1her criticol issues facing George McMillan (1979-83) Alabama. Chief Justice Roy Moore addressed lhc leg• Bii I BaxI cy ( 1983-87) islators concerning the criticnl issues racing the j udici Don Sicgclman (1995-99) ary. The legislature met in organizatlonnlsession Steve Windom (1999-2003) January 7. 2003. The Rcgulnr Session will begin Man::h4. 2003. Ucutcnan1 OoYcrnor Lucy 03.lllcyis no newcomer to Ooe can find out more about the legislature and lhe the senate since she wns First Wy of the Scnat.c20 members by looking at their Web sit.c, ..,..-.,alisdb.ley· years ago. She will be joined by only six senators who islaJllll.stmLaLus/aca.,/AC/\Sl.og/n.asp. Youcan also wen: there in 1983. find out more about the Alnbama Senat.cwilh their The ~nnt.c will /law rwo new lawyers: BradleyByrne. Web site, """"'l,gislnn,rr: .:11att.al.1uls•na1Lh1ml. The Mobile.nnd Myron Penn. Union Spring.,.They willjoin House o{ Rcpres,,n1a1ivcs'Web site is ww,d,gis/a nine returninglawyers in the Sennic: Zeb Linlc, Cullman: ture.state. aLuslho,,s elhDust . hhnI. Cun Lee. Jasper; Roger Bedford.Ru.sscllvlllc; Rodger The Alabama L.,w lnstltmc can be round :ot the Smltbcrmnn.Binningham; Phil Poole, Moundville:Pm lns1i1111es Web site. ww1,wli.sri11•. 01 .u.,. The Institute Lindsey.Out ler. Hank Sanders, Sclmn:'li:J Lhtle, will present 10 Uoe legislt11urcu new '"Residential Aul~om: and WendellMitchell. Luveme . Landlord-Tenant"law, n revised'"A nntomicnl Gift Act." TI1chouse of represent.itivcsw ill have eight luwycrs. and a law affecting '"hncrstmc Enforcement of Domestic 11lCl'Cnrc tl,rec new Jowyerselected ; YusurSalaam. Violence Protection Orders AcL'"Copies of lhcse bills Scbn,t; Cnm Want. Alab3Stcr.and Greg Albriuon. can be oblllincd froonlhe Law lru.1itutcWeb site. E,'Crgn:cn. Tiic returning lawyers nrc: M.,n:c1Blnck. Floreoce: MarlcGaines. Binniogham: Krn Guin.Qu1>on I lilt: JclTMcLaughlin. Guntcrsvlllc: and 0.:mctrius For lllOfC inform:u.ion.conll>Ct Bob Mc:Ouley. dinlctOC', Newton. Birmingham. Al:JbrunaLaw Institute, P.O. Box 861425. Tuscaloos:i Compnrc !his with lhe legislature of 25 ycm ngo. 35486-0013: fnx (205 ) 348·8411; phone (205)348· 111csenate now has 11 lawyers compareJ to 12 741 I: Web site w,,,i •all.s101t.al.11s. • lawyers 25 ye.,rs ago. The house has eight lawyers. clown from I I lawyers 25 ye.,rs ago. While lieutenant governors have generally been lnwycrs, 'lbm Ottlkc is Roben L Mccurley, Jr. the only lawyer spealter of lhc house of reprc.w,muives AooonL l. 24 111 N U A R Y 2 ti O 3 MOBILE BARASSOCIATION Sponsors Presentationof ''To Kill a Mockingbird'' m /.\\\'Iii\< I /I \Oil or mnny years. I uied to get tickc1office. they woold p111me on ticktu 10 the "'ToKill a bold Md 1ellme that they 100 busy F Mockingbird~ production selling tkkeu to t:1lkto me. I did in Monroeville. They ulways sold nOtmind thn1a bit oul every perfonnnncethe day the TI1eca_~t and crew from tickeis went on sale. so I wns Monroeville Hrrivcd in Mobile on never able 10 uucnd. I had heard Friday morning. Whai on amazing about how rascinn1ingi 1was to group of speciul people 1hey are! see Chris1ophcr Sergel"s adapiu 11,cy moved Imo the Saenger tion ()f the frunous Harper Lee quickly and held o dress rehearsal novel portrayed on 1hc lawn or 1be at 2 p.m, Abou1 70 school children hisloric Monroe Coun1y paid $5 each 10 = 1he dress Courthouse. nnd 1hcriveting fic rehearsal, and we were gind 1.0 tional trial or the fals,,ly oocused accommodale them. The perfonn Tom Robirisondefended by ltllCC on fridny night was 10an lawyer/role model A1ticusFinch audience of about 1.200. The protrayed in the IIClualcourtroom So1urdayevening perfonn:mce which sen·ed as the model for the wnseven beucr. The oc1orswere courtroomin the 1962 movie Slllr· more eomfonable in the theater, ring Gregory Peck. and the audience was over 1.400 It occurred 10 me that the stron11. Mobile Bur Associniion could per When nll was said and done. the fonn a unique public service by 1ownspeople (rom Monroeville bringing this p,·ouuction 10 hod pul on two reenncu11entsof Mobile. I rook rny Iden1 0 the "Mockingbird" to large apprecia Executive Conuniuce of the tive audiences: the Mobile Bar Mobile Bar Association. I pro Association achieved a major put,. posed tlta11hc bar association lie rclntions boost; the nudicncc sponsor the event. nnd that all nc1pro So. we then l>cc:unean official wns reminded or a country lawyer·s ceedsbe contributedto lhe Mobile Bar Tricenlennial cvcm. courage in uccepung nn unpopular case F'oundutioo.Although they enthusiasti Scheduling wns wurted out with the and exposing mcinl inJusti~; we added a cally bought into it. I knew my real work S:lenger'Thcllu:r.so we went fON'llld with 1113jore,· cnt to the Mobile Triccntenninl had just begun. plans for• single performanceon c,:lebratioo; Md , :i.ftcrpaymcn• of llll Mobile's ui~n1cnniol year was2002. Saturday.April 20, 2002. AboUltwo CJ /Ill ti tllt\ll I I U>fR 25 J. Anthony McLain ContactWith Employeesof OpposingParty RefinedOpinion Question : "Rule 4.2 Communication Wilh Person RepJ"C-SCnled by Counsel "I hnve a slip and fall case in a retail store and I In representing a client. a lawyer shall not communi would like an opinion as to whether I can contact cate about the subject of the representalionwith a pany directly some of the casbiers. It seems tbm my client the lawyer know~ 10 be rcpre~entedby another lawyer slipped and reuin a certain area of the store. After she in the hlnller. unless the lawyer has tbe consent of the fell, she says thm one of the cashiers told her that a other lawyer or is authorized by law to do so." store employee bad been moppittgo r buffingin that When the represented party is a oorp0rntiono r other area immediatelybefore the fall and had left moisture. I organization.co1nruunica tion with .son1c of the c1nploy.. would like 10 interviewthe cashiers to gel that straight. ees of tl1eorganization is also prohibited.' "I would be gn11cful if you would give me an opin The Commenl to Rule 4.2 deline.ite.sthree categoric~ of ion as to whether such an interview would be allowed employees \vitb whom con1municalion is prohibited, viz: under the circumstances.It is not my understanding that the cashiers were the people who had done the "In the case of an organization.t his Rule mopping or buffing." prohibits communicationsby a lawyer for one party concerning the mauer in repre Answer: senration with persons having a managerial Pursuantto Rule 4.2 of tlte Rules of Professional responsibility on behalf of the organization. <> 0 Conduct of the AlabamaState Bar. an auomey may and with any other person whose act or C .,= communicate directly with an employeeof a corp0ration omissionin connection with that mauer or other organization who is the opposing party in pend may be imputed to the organization for "' ing litigation without the consent of opposingcounsel if purp0sesof civil or criminal liability or the employee does not have managerialresponsibility in ,vhose statement n1ayco nstitute an admis.. the organization, bas not engaged in co11duct for which sioo on the pan of the organization:· the organizationwould be liable and is nol someone The informntion provided in your lcner indicates. whose Statemenl may constitutean admissionon the and for purp0ses of this opinion ir will be assumed, pan of die organizntion.h is the opinion of the that the cashier does not fall within either of the first DisciplinaryCommiss ion of the AlabamaState Bar that two categories. i.e.. she does not have managerial the tbird category.i.e.. a "person... whose statement responsibility nor did she engage in conduct for which may constitutean admissionon the part of the organiza the organizationwould be liable. The question, there tion" should be limited to those employees who have fore. is whether the casbier falls into lhe Lliird category, authority on behalf of the organization to make deci i.e.. would her statement to you constitme an admis sions about Uiecourse of the litigation. sion on the pan of the re~1il s1ore? There is a signi.licanrdivergence of opiniona Jnong Discussion : variousju risdictions as to which employees fall within Communicalion with persons represented by counsel this third category.Some jurisdictions take the position is governed by Rule 4.2 of the Rules of Professiom~ Lliat the prohJbition extends broadly ro all employees of Conduct. which provides as follows: a corporation. 26 JANUARY 2003 Others have held lhnt the prolullition applies to any employee ••• whol.e i;tatemcntwould constitute an "admission agairu.1inter Howcver.other juri5dictions tlJathave ndopted the est" exception 10 the heursny rule. as provided in Rule same or similar versions of Rule 4.2 are divided on 80 I (d)(2) of the Rules of Evidence. SIill others hnve interpret• whether their own versions of tlJe rule ore properly ed the Rule narrowly 10 prohibit conlllCIwith only a "control linked to the admissions exception to the hearsay group,'' which is limited to the company's highest-level man rule. nnd disagree about the pn,cise scope of the ai;cmcnt. 11icreappears 10be no case law in Alabamn which rule as applied 10orgnnizatioos. definitively addrcsse> the issue. A recent decision of the Massnchuseus Supreme Judicinl ••• Coun provides whm the Officeof Gcnernl Counsel considers to Some j urisdictions hnvc adopted the broadre ading be • rationally dc.fonsible and well-balanced approach 10 the of tlJe rule endorsed by the judge in this c:ise. (cita quc,tion. In Messi11g.R111/avsky .~ \Vdik)\ P.C.v. Pres/ti""' tions omitted) COUrtSrenching lhh result do so and fr/laws of Harwin/ Co/leg.,, 436 Mas.s. 347, 764 N.E. 2d because, like the Superior Court. the)' ttnd the worn 82.S(2002). n police $1:fllcrull with Hurvlltd'ssecurity dcpan ·oomission• in the third category of the comment as ment sued the school for se~ discnmlnotion. The plaintiff's a reference 10 Fed. R. Evid. 801(d)(2)(D) nod any mtomey interviewed five Harvard employees who were not corresponding Stnte rule of evidence. Id. This rule nccuscd in the lawsuit. two of whom bad supervisory nuthoriry rorbids contact wi1hpmc1ical ly all employees over the plaintiff. TI1c lrinl court ordered sanctions against the because'virtuillly every employee may concei,'Sbly nuomey fo, violation of lhe Massachuseus,'CISion of Rule 4.2. makeoomissions binding on bis or her employer.' The Supreme Judicial Coon reversed. concluding. in pertinent pan. as follows: ••• "The [lri1JI judi;c held tlJut all live employees inter Al the other end ol' the spectrum, :, smnU number of viewed by MR&W were within the third category of jurisdictions has interpreted the rule narrowly so ns the comment. He reached tlJisn:,ult by concluding 10 allow an auoniey for the opposing party to coo- that the phrase 'admission' in lhc comment refers to 1ac:1most employees of a n,prescnted organizatioo. statements ndmlSSlblcin court under the admis,~ions These courtSconstrue the rule to restrict contact exceptionto the rule against hcnrsay. with only those employees in the orgnnizntion's ·contrOIgroup.' defined :,s those employees in the Attorneys: Buy Extras for Your Staff! 2002 Bar Directories Get your extra copies now. Members: $.25 each 1 to 5 copies $20 each 6 or more copies Non-members: $60 each OB.DEBS MUST BE P~PAID Mail check co: Alabama Bar D1Nctory P.O. Box 4156 Monqomery, AL 36101 I/If \I\U\"\ l\U}IH 27 uppcm1ostechelon or the organiza1ion's managc cient ro give then1 the right to speak ror. and bind. meni. Olherjurisdictions have adopted yet a !bird the corporation.' tes11ha~ while allowing for some ex pane contacts with a rcpresemed organization'semployees. still ••• mai.n1ainssome protection of the organization. This interpretation,when read in conjunction with the other two categorie.sof the comment. would ••• prohibit ex pane comae! only with those employees Although the comment's reference 10 persons wbo exercise managerial responsibility in the mat 'whose statement may constitute an admission on ter. who are alleged to have commiued Ll1e wrong the pan of the organization' was most likely intend ful acts a1 issue in Ll1eli tigation. or who have ed as a reference 10 Ped. R. Evid. 80 I (d)(2)(D). authority oo behalf of the corporation to make ibis interpretation would effectively prohibit the decisions about the course of the litigation. questioning of all employees who can offer infor mation helpful to the litigation. We reject the com ••• ment as overly protective of the organization and Our test is consistent with the purpose. ":\., l.n\'ycr, we ,pt ·1HI .1 lot ol 1in 1,· k.n nin~ ho\\' 10 ·11111 1nl!l'rl1cr' .1 l;bt' liH 1ri;1l. \X:c \\'.Hll du· ri~ln i11tt·rrt1~,ttorit ·,. d1t· rigl11 t·xhihit,, d1t·r i~ht t'XJ'l'rl. ·r1ic ·1ri.d I ;t\\ ';''t'f', (_ :,,llt':,!.l'I' IL(:': pru~rJlll t~)(tl\t,_ ' ', on int~tn~ibk-.r,H1:ly if l'\'l 'f .uldrt·s,t:d in ;l l.t\\' :s.(honl 1_1r.1 lOlllinuing <.:dul.1tio11 pr11g1.11n... I {u\\' do we (01111i: ( t ,vi,h .1 iur~ .1, hu111;111h<.:ing-.~ I-lo,\ du \\'r.: (Oll\ '1._'.;,'to .1 group of ,tr.Hl!!,l'Pi our d iL'IH·.,p.1i11, 111i11nnCl'fltl·~ I ltl\\ Jo \\l' pull frurn our ht·,1th \\h,1t \\'L' w.1111our iur~· 1n Ju in our (lie111·~1.:.1-.t' ;111d L:n1po\\'t'.r d1cn1 to .1 i u,c rc,ult? (;err~ \pl·nu,: .111d dtL' · rl ( - h.n c LfL ',ltt·d .l progr.1111\\ hich r.:xp!urcs d1c,L· \Vorthy f_o,1h.tnd t·xp;111d.s tht· hor i,011 (nun \vlulh ,Hl\' ,\IIOl'lll'\' l.111\·it'\\ ' hi, or her (.l.\l·." {,r 1;-; .\/o-r/'i - .llcr ,·o c'v ,·,.,,u,_,_,,J_J.J> . Bou/d(r, C'() Now, youtoo can learn to win with the Gerry Spence Method! orch 6-9 , 2003, In Toccoo, Georgia, ihe Trial lowyers College will present one of ils Regionol Youcon learn to: MSeminar, lo lroin ond educole lawyers /or lhe people in the unique, effeciiveond powerful melhods designed, developed ond tough! ol the Triollowyers College at Thunderhead Ranch In Dubois, Wyoming. • Knowtl,. "6'1, • Uncbt.ndth. iuds<, This seminor Is on intensive honds-on, 1hree,and0 a ·holf day worl 28 JANUARY 2003 11dcqu:itclyprotected by preventing contl\CIwitb or fraudulent uct by a client. unless disdosure is pro those employees empowered 10 make litigation hibited by Ruic 1.6." dect!iOn.\.:ind thoseemployees wh= actions or -Rule 4.3 Dealing With Unrepresented Person omissions are at issue in 1hecase We reJecl the 'control group' test. which includ~ only the most In dealing on bch•lr or n client with a person who ,s se111ormanagement. as insufficient to protect the not represented by counsel, n lawyer shall not state 'principles motivating [Ruic 4.2).' (citations omit or imply that the l:iwycr is disinterested. When the ted) The 1cs1we adopt pro1ee1snn orgnnizmional lnwyer knows or misonnbly should know that the party ngains1improper ndvnnces nnd influence by unrepresented person misuntlerstnn TIil- \I IH-\\ll / IU) f N 29 \ - ., ' . - ' . . - ' : ' ' Fall 2002 Adrnittees Statistics of Interest Numbers iteing for exam...... • . . . • . . • ...... 608 Number certified to Supreme Coun of Alnbamu. . • ...... • . 368 Certification rate•...... 60.5 percent Certification Percentage$ : University of Alabama School of Law ...... 83.3 percent Bim1ingham School of Law ...... •.•...... •...... 27.9 percent Cumbcrl.u1dSchool of Law ...... •...... 87.5 percent JonesSchoo l of Law ...... •••.•....•...... 48.2 percent Miles College of Law ...... 15.2 percem • t11cllllles 011/y those s11ccessf111/y pas.,i11gbar e.r111110111/ MPRE 30 JAN U ARY 2003 Alabama State Bar Fall 2002 Admittees Adams.Keri Brooke Brown,Jeffeiy Ad/Ian Jr Erllrnston, Parker£lira Hallman, AshleyAnn Adams,Rollin Ann Brown.Lori Jill England, ChnstopherJohn Hamner.StlMlll !lodgers Aluns.George Meado( Brown, RobenLeslie Jr Essig.Brandon Keilh Hamptoo,Leif Rush Alley,Edward Lynn Bryant.Douglas Hugh Ezell,Brad leyHarden Hancock. WilliamM at1llew Allred, HernyPr entiss Burnham,Bradley Daryl Fallaw.Mary Frances Hru1kins,Wi lliamRoland Jr . Altom.Kent Edward Butler,Cynthia ViJ1eS Faulkner.!lfent Kenneth Hargro'lll.Holli Michelle Ashwofth.Knstin Taylor CadeGregoiy Andrews Fernandez-Casablanca,Manuel Harrell,Charles Miner JL Aungst,Kristopher Edward Camp,Robert Joseph Ficken,law1enc:e Allen Jr Hanisoo.Mal)' Bien Wyatt AIJstln-Haleher.Monica Denise Camey.lols Am Relds.Randall Ea~ Harville-Stein.Susan Francene Austrn·Trucks. JacquelinePra tt Carter.Manhew Ke rth Fleming,Char les JacksonJr . Hatfield. AlysonneOdessa Babineaux.Donald Rey Cash.Regina Ford Flowers, RonaldWayne Jr . Hazelton, Jl!lemyScott Baggot,Brian James Casto.Patncia Leigh Floyd. ElizabethRedding Henderson,Arrrf Ray Barll!f, DoonaM Cavel. JamesPatnc:I: R>ntame, WesleyThooias Henderson.Charles Todd Baker.Matthew Michael Ca111edes.Rhonda Rk:hardsoo Foste!, AtonLaMonte tieooefson,Da111d Wayne Baker,Schuyler Allen Bradley Ill Chlstolini,Paul Ugo FoWler,Joshua Keith Henry,Rebecca Denean Ball.Helen Denice Citrrn. Eli2abeth Anne Fowler.Pau l Weston Herrin,Brent William Ball, WilliamSteven Clark, JackieDelaine Freeman, AsllleyHawkins Hightower,Btadley Richard Ballentine.Michael Robert Cleckles. DouglasCraig Freeman.Beniamin Joseph Hill.Angela J. Banik.Jemirer Leigh Clevelarcl.f.oker Bart Fteernan.Rldlard McConnell Jc. Hill.Kalhenno Elizabeth Barboor, AmandaBol1 CliftOn, MyraJayne Hom Fuller.Michael Wayne Holmes,John Barksdale Ill Barnes. CynthiaLee Cobb.BrentleyTyler Gaines.Carmen M . McCOM!V Holt. Angela Barnes. JamesAlbert IV Cobb.Henry Herbert N Gallrgan, KeithMichael Hooper,Stacy Bryant Barnhart.Shelly Lynn Coo. DavidEugene Gamble. JolloBarry Home. JonathonMat1hew Bates.Ernest Cole.Lesl ie Michelle Garns. RobertBradford Houser.Matthew Scott Beardsley.Robin Leigh CoMn. laushaVanese Garnson. Elene Howe.1imo1hv John Beason.Warren Dyer Cook. WesleyChadwick Goldrne1er.Lisa M aria Howell, CllristopherMichae l Bellamy,Robe rt Wayne Couch. ChristopherPatrick Getty,John Eric Hughes.Brandon Mi chael Ballenger.Alan Keith Craig, SenequaShanta Gilbert.Joel Iverson Hughes,Mrthael Pennington Ballenger.Raegan Whitten Cross. lauraRebekah Gilder, Harrylipstomb Ji. 1-Mtet, VirgilEric 11 Bellew.Heathef May Crull, LutherPutnam Ill Glove!. RaymondMatthew Hurst.Daniel Malhis Benefield.Elleoann Cook Cummins.Timothy Pater Glove1. ThomasCarpenter Hyndman,Claire Janet Benson,Blaine Sanders Cunningham,felecla Denese Godwin,Chadw ickStuart Jackman,laura M ann Berry.Kevin Lawrence Daigle.Danielle Andree Golden,Maggie Elizabeth Jackson. DouglasBlaine Boolcer. KellyRogene Danley. Christoit,erDwrght Gordon. OavtdTaylor Jawon. KafenHalden Batie,Michael David Darnellle. JasonDigges Gordon, MIChaefPatric!( James, ChristopherShane Brackin.Asllley Ann Darty . LaurenLynn Shutt Graham,William Abbay Jr Johnson, RrchardBrantley Bradley,Jeffrey Robert Daugherty.Ann Mane Finley Green.Chnstmas Yvene Johnston,Hamilton Robert Bragdon. DavidA lan Davis.Stacey Ann Green.William Ch adwick Jones,Albert Branton.Brand, Lynne Dean,Enid El izabeth Grimes.Christine Anne Jones, MorganWebb BrlSBOOine.James Enc deGrnttenoed.Wilham Ryan Ill Grossman.Deborah Hatdwtck Jones. RolltnHouston Brisbnan. SamuelJoshua Dill, AndrewDouglas Gutd,y, HeatherReoee Joseph, SOamandaRonette Bntt.Brian Patrick Dixon, Christinalee Guster, Ericlance Juneau.Leanne Elizabeth Bntt, BrittenLes ha Dixon,Donna Leisa Guster.Ta'Kisha la' Nete Kegley,Thomas Edwa rd Brockwell. GregoryAustin Dodd,Howard Hube Jr Hagen. RebeccaBrannan Ketcham, CarletonPutnam Ill Broderick.Randall James Douglas.Gayle LaRece Hagood. SandraPayne King,Bufkin Af,,se Brogdon.Jonathan Lyn Ooy1c. lllsula Tracy Hale, CarlesRobens Kirtland. WilhamAnde!son II Br~. GeraldClafl; Drummond.Ros~unda LaVisha Hale. ElizabethBlake Kir~. JasonMatthew Brooks.Michael Dryden Dupont, AudreyYearout Hale.Jason Glenn Knee,Tara Sme lley 1111 ll \Ullfl / \H}/H 31 Alabama State Bar Fall 2002 Admittee s (Co11tin.11ed) Knighl.Chrislopher Alan Mixon,David Earl Robison.John Andrew Thompson.Jennifer Marie Koch. HenryJames Moak,Andrew Joseph Rogers,Ruth Marie Thompson, JohnGO/don Jr. la Trace. RickAndrew Money,Stevan Wesley Rose.Derek Christopher S. Thompson, NalhanMichae l Lambert, JamesKeilh Monroe.Brian Edward Ross,Fred Ill Thompson.Rachel Ross Lassiter.Joe Frank Ill Moody, MarkBradley Rumsey, PatrickShawn Tolar.Meredilh Lee Lassitter.Amy Gall Moore.Le Tonya Faye Russell, SamanlhaNoe l Tubbs, JacobMichael Lawrence.John David Moori119,Mary Ellen Russom,Tracy Leigh Upchurch, ShannonViar Leavell, Hallie Laura Morris.Haro ld Wayne Ryan.Clayton Mi chael Veazey.David Uoyd lee. FrankEdward Morris.Kalhryn Lu ise Sander, AndreaGail Vickers.John E llison Lee, GarvWilson Morris, KevinM ika Sansbury,Michae l Todd Vickers, JonalhanKenion Lee, HeatherAnn Murrill,James Edward Jr . Sasser. LarryRay Vickrey,Ala n Lane Lewis.Laura E llen Nelson,Meegan Benson Sawyer;John Scon Voght. LauraLynne Lipow,Danielle Jeannine Nichols, AmandaLynn Burkhalter Schefano.Angela Michelle Moore Wade.Eric M ichael Littell,Caro lyn Elizabeth Nomberg,David Philip Schillaci, JosephPau l Jr. Wainwrigh1,Reed Ryan Liveoak.Thomas Blake Nunnelley. JenniferAndra Scott.Curt is Laverne Waites,Rodney B Lloyd.GregO/y Sean Ogle.lina Rochelle Scott.Marsha Bax ley Walke,.M ichaelBrandon Loftis, ScottL ee Overstree1. MichaelLee Jr. Seale,Turner Chapman Jr. Walker, MichaelHosie Logan.Jamie Parris Owens.Terrie Seal Self,Cindy Lo rraine Walker. Valeria Frye Lovoy,Laura Susan Pack. StanleyM ichaelJr . Sessions, MaryAbigail Wallace.Barbara N ichole Lucci,Virginia Rose Padula. KrvstalGail Sexton. EllenCather ine Walters, JasonAllen Luckett. Angelalane Palmer. LucindaElisabeth Shah, MiteshBansilal Warburton,Reed Thomas Lykins,Raymond Marshall Parks-Stone, MarvCathe1 ine Shaw.Michael Anthony Ward.Navan Jr . Mahan.Robin Annette Parr.Benjamin Howard Sheppard.Lee Loft in Ward, WilliamAnderson Malone.Belhany Ma ria Ellison Parr. LanceWilliam Sherer.Roben Jus1 in Weaver. Janetleigh Maloy, GloriaPresoott Patterson.Boyd Marscell Jr . Shon. MaryPamela Weaver-Stern.Phebe Junene Mantle, MatthewAndrew Panerson,Lee Taylor Shows, StephenRichard Weinberg,Martin Evan Maples. JayGuerin Pattillo. JamesLaurens Sides. Tyralynn Welsh,John Bates Mathews,Darold Alan Patton,Les lie Elizabeth Sinnon. Candice Cheree Westbrnok,Jess ica Michelle Mauldin.Emorv Keith Payne,Adrian Carrie Slaughter,Adam David Weston-Pickens.Debra Ann McAfee, JoyM arie Payne.Chesley Paul Smilh, RonaldWayne Wheeles.Michae l Todd McAninch.Benjamin Doug las Pllillips.Daniel Randolph Jr. Smith. TobieJohn White,Andrea Neckelle McBride. JordanMontiel Post. ChadJu lian Smoak.WIiiiam Glenn Kemper White.Richard Benjam in Jr. McCOld, liffany Bullard Prashad.Donna Joyce Wingard Snyder.Adam Brook Wiginton,Denise Pau line McCulley. R.Brvant Prickett. TamalaBrogden Solomon,Marc Peter Wilkinson, JosephDavid II McDaniel.Reginald Daryl Pruitt.Aimee Sisk Somma,Joseph Charles Williamon, ShaneCl inton McGovern.Kev in Allen Pugh.Pllillip Ashley Sparks.Christopher Ryan Williams,Molly Jenn ifer McIntire,Jeremy Wilson Rainer. JenniferLynn Vann Sparl 32 J A N U A R Y 2 0 0 3 Lawyers in the Family 8,u.Jf<) l;:,1/ /]l}()] J wrd E:.M arl: C)~tJuo \1MS Bltt/u ('lOOl}and Sltphn, St,o,i,s 11002)'"'" Jod Cholrlt.Jhd::M,,n Fl - .;'.,",. ' - '~.. ~ 1111/rG't1 fr ( 2001} «nd Carrit EIILt JtJmr, Alum St.th'Ort (1Q02) tltlef Ai,drey Yt'am,11D uPot11(2002>. J . 0 1,1.,ty }i-ru out I /97J J IJ/llf Ja:,tJfl I. >i',uou, \ft:(cilfw,i I ,096) (' l1(1rlrx 0. Sttt't4"t1n( 1968) (20/XJ} u./m,n,, «,s.Jdut r-U,-ltn\ n.Jnult~ff ,uNI/athLr a.lmilltt, fothu and brothtt C:hm,.. r,.,, 111,1.m.1 /'tlJOl t lvdtr John II &1/and. Jr (1'174~Joltn II. s.A. Brodky Bobet Ill (2001/ ww/ C..rlrt"" P Krt<:NJM,11/ l'tl)/)] J fAi/u,,J, Ill I 1900) .,..i April £n1lonJ Albn1~1//997/ S. A/Int &iur. k //971} 1utd Carltton P. ~,,.._ Jr JJ"111t(~./'11h,r. J, m thtr Md sl'-ter odmlu~ ond ,0,1 (/f114/ (11./mlntt (11"1fa rhtr flll \I \H\\f\ I \HllH 33 Lawyert1 lat he Family Bi,;,;lhk(Zl1(12i 0-, Hal, ( 1978). &/rl«Ylfal, R,,.., ( 1994) , Patric{ 8. Blaine Sa11der.s8t!n$Un (2002 ), Jimmie Cloy Br,.son.Jr. ( 1998) and LJ-,,JaD. M (IW?J. and 1/J>b,nD. Rfru I /9!/6) Bcnso,r (1980) ~f/Jll,,tr. Jitk,; b"'°"r. and broth,r, f,,./uw admlrreeC111d ct:11diM IVJl/iamRJ11n d'1$roffenried . {1/ Ma11hewPatrick Tengu~ (200 2) an,/ Clal"' Bvnd"""' (10/l2J and (2002) a!ld lVilliam R)•an Barry E. '!,ague (1972) F.dwonJA B,,•ndmno.Jr. ( 19671 de/:;rujf,11rk1/,Jr. ( 19751 tJdntittc~a,u/ fa1her Dllmftrt>tand fa1~r admitte~ andfather AshleyRawl:i,uFle1111f(D• /2002) ond )Qt Frank Las.rire,; /JI (2002) a,rd Jqmes U.1r.lrrrAlitt.'IMII (2002, aad RIChturf ,ftfc 34 J ANUARY 2003 Lawyers lathe Family Br1n11Orltr (2001 ), Bmi,n Br/II /2002) w,d Ro" E. Kop,sAy/1973) Su.it1nHun,ille-StVn (2()()2)and 7wru1ln 8rogd1nf'rit:U rr (2002) h11.dJ011rl u-,uJwi/t t o-odmilrte.s,/atM.r,.in•IOw/[a1h~r Demi D. Steln (2001) and Rohen II . 8"'8(1.n / /972 / adnrirttteand husba,11/ tulmlit.r. Ja,·que/Jne/'ra.J.r Au.Jl&n-1iuc.k, Elhtt.l~lh Anni!. Cizr(n (2002) and l..ti/R1,sh H tUJtfn,n, (2002) wuf ltf111·yAbigafl Sei.dt'(l.t 12002) u11d (2002) and Jaequelbre B. A•ufln A11dn!W 1: W'lrin( 1986> ,\ft1ry Ann lltunp1,1n( 199.'J) Jeff 8. Su.,ronsI l!>lJJ (1968) admiltee and brotJ1er udntitttf! and ntOllrl!r admii1ee11.1td /mlt,r tulnrlltt:t tu11/m(J1 l1~r Mft'hnel lV.F141/11r {20fJZ), S . \YO)'tlt' /itJ/ltr (197S'). ftJ1t111., R. K,1/gl,r(1962) T II /_ , I. , ll \ \I 1 I \ \1 ) /-. N 35 Lawyers lathe Family {;Jn1hlt1Prop_sr Naulsron (2 002) Rob Johnston (2002) and Saroh Nntlwn M. 1'ltc,mpson (~002>an ,/ J,jJ,ey R. Rrotlley (2002) ,md T.l nnd /tJN1IJwnRa11J.,1on (2001 ) Scogin Jol1nston(2 00/ ) N. \~hyne Simn,s, Jr. (J99Z) Brmll•y (J!l9J) a1lnrltrcearuJ hu.tbt1nd (IJ/mlttett an,/ wife tlllmittte m,d cc11sin 11d,,ritur and wife Judicial Award of Merit Nominat ions Due The Boardot BarCommissioners of the Alabama Sta te Bar will receivenominations for t he statebar's Jud icial Award of Merit throughMa rch 15, 2003. Nominationss houldbe preparedand m ailedto: KeithB . Norman. secretary Board of BarCo mmissioners AlabamaState Bar P.O. Box67 1 Montgomeiy,A L 36101 The JudicialAward of Merit wasestablished in 1987. Theaward is not necessarily an annualaward . It mustbe presentedto a judgewho is not retired,whether state or federa l court,trial or<1ppellate, who is determinedto have contributedsignif icantlyto the administration of justice in Alabama.The recipient is presentedwith a cr:ystal gavel bearing the statebar seal and t he yearof presentation. Nominationsare co nsideredby a three-member committeeappointed by the presidentof thestate bar, which then makesa recommendationto the board of barcommiss ionerswith respectto a nomineeor whetherthe awatd shou ld be presentedin anygiven year. Nominations shouldincl ude a detailedbiographi _calprofile of th.enominee and a narrative outlining the significant contribution(slthe nomineehas m adet o theadminist rationof justice. Nominationsmay be supportedwith lettersof endorsement. 36 J ANUARY 2 0 03 Asecure, nationwide servicefor Soo:essful1031 c\chanJll'\ reqwrr_ finanoal ,mangcmcnh th.it are completely.111J structuring pro~lr safeguarded.L.,ndAmcrica 1031 Exchang~ !>emces i, backed. on e\'l'I'l'transaction, tax -def'erred byits parent company, l,mdAnlt'rica Finanda l Grnup{ ' YSE,symbol 1.FG), 1hc roumry'~ exchanges. premiergroup of na1fmml 1111van111ran,e com panle,. l.mdAmcricaI031 ExchangeServices has beenm the 1031game for ) car) .md we know:tll the rules.Call us or visilour Web,,re and ask for our con,cmem and comple1c packageabout keepi11gvour 1031exchanges safe. Robert S. Calicnio • MichaelRiddl e 2200 \Vnodcrm Place,S11ite 330 U,rmingbam,AL 35209 LANDAMERICA T,I: 800-831-680-• um.·u./J11Jam .co111/1031 1031 EXCHANGE SE RV ICES 1111 ll lH\\I\ I \H)IN 37 ,n A./1/\ I\ /'\/711\ \\/J\I// I.J.\11/ < \l// '/11/L Iii ohn Owcrly gels up every morning nnd goes to work a, The Players Acme lndu.,trinl in Smnlllown.Alnb;una.. One day. while Wlnle 1heAlab;,ma legislnlwe limited rcco,-.ry for work J operaung a piece of industrial cgulpmenL John suffers no rclntcd injuries ngn1ns1an employer by passing 1hcWorkers· 011-thc-job injury tha1resu lts ht the loss of his left hand. While Compensation Act (hereinafter "the Act"), the lnwmllkcrsal50 John clearly ha.Cnteither Mr. Qwerty or Acme. 1hcrcare scveml FebnmryI , l985. While some minor re,•islonswere made in questions 1h11tmust 1)1>answered before the ultimn1equcs1ion of 1992. no substnn1ivealtcmtions have been made since the origi the potential liability of a co-cmployec Cl\ll be addressed. Is ool pa,sage in 1984. 1hercevidence thal • co-employee intended 10 injure John? Was Proper panics for claims under 1he s1a1u1cnre lis1edin 25-5· 1hereu safely device on 1he m11chinc John was opcra1ingw hen I I (a). DefendnnlSinclude individuolco-employee.~. third-pany he wns injured? Is there nny evidence 1h31a co-employee'~ worker,,·compcn. I JI I I I \ ll \ H l I \ \\ l f. H 39 The Statute In Recd. U1ep laintiff injuredhis hand in a concrete miJ 40 JA NUARY 2003 An imporuu,1(e)(t) cnse in the contextof governmentsafety reg mower ut issue and bad ordered that the brakes be "straightened" ulmion violmionsis Pi11.rv. Beasley. 706 So. 2d 711 (Alu. 1997). In even tliougho ther employees recommendedn complete bmke Piu.r,the plaintiff was htjured as the resuh of n methaneexplosion replacement.I d. m 1245. There was nlsoevidence th at Cosby knew ln the No. 5 Mine n1Jim WalterResoon:es (' 'JWR"). Pitts. 706 So. tb!Uthe conditionof thebrJkes may nl.lowfor debris to get into the 2d QI 713. JWR ttttiVtd SC\'eral,· cntilntion-relruedcimlians from brakesnod decrease the system·s cffecti\"CIICSS. Id. QI 1246. Cosby the Mine Safety and HealthAdmirustrntion (" MSHA") in lhe did not hllvethe brakesreplaced because be knew the mD"'Ct wa.~ month.~before lhe explosion.Id. 1lic MSHA in1·estigationconclud about to be traosferrcdto nnother facilityand he did not want to ed th!llth e failure to emend a line cwtnin, which aids in keeping spend money on maintcnnnee.Id. The court focused on Cosby's the mine properlyvcm ilmed, could have been:, contributingfoc ior. mindset with regnrdt o the b~ and concluded lhnl "[i]1was not Id. (this issue wns a key ractorin the (c)(2) claim. disc~"lncewill not be enough dust, :u1dtherefo re, the co-employee defendnmwas substnntinlly 10 sustain a (c)( I) claim under the second prong of U1e Reed lest. cennin thnt plaintiff's eyes would be injured. Id. The coun Another impot13Jll (cXI) C1lSOwas Merritt v. Cosby, 578 So. 2d affirmedsummary judgment as to Lane's (c)(I) claim (as well n.< 1242 (Ala. 1991). The plninillrs decedent was killed when the bis (c)(2) chlim.discussed i,ifm) by pointing LOa C'1US3tionprob br:lkeson a large tr.lCIOl'lmowerfailed and the mower mn O\'Ct' the lem with Lane's rugumcnLId. Toe danger10 Lane's eyes thruhis deeede:nLM errit/, 578 So. 2d at 1243.There wasevidence 111<11 supervisorsappreciated wns rela1ed10 sawdusi. not metal chips. Cosby,the lllllllagcrresponsible for mnintennnceof nUequip ment Id. TI1iscase further reinforces the direct causal connection nnd a co-employee defendant. knew of the brake problems on the required for a (c)( l) clnim. Therefore. the "substru1tinl ce11alnty" /Ill\/ \lt\H\ I \H)IN 41 causal link in lhe second prong of the Reedtest requires the fol by u\Cmru1ul'acturer of the machine with knowledge lowing: the co-employee must have been '"substantially cenuin" of that injury or death would likely or probably re$uh the speclfic danger that actually caused injury or de:uh, not of from the removal: provided, however, d1atremoval of some other risk that could have caused the same injlll)I. a guard or device shall not be willful conduct unless A final (c)(I) case worlhy of specific discussion (becauseit tied the removal did, in fact, increase the dm1gerin the together many of the key (c)( I) nuances)is Ex IJ(lrte Manin. 733 use of the machine and W'JS not done for the purpose So. 2d 392 (Ala. 1999). In Martin. u,rce employees were killed of repair of the machine or w.is 001 pun oJ'an when n chemical tank exploded as they perfomied maintenanceon improvemento r nioditication of the machine which that tank. Mani11, 733 So. 2d nt 393. Eight months before the acci rendered lhe safety device unoecessary or ineffective. dent. tbe co-employee defendantsuperv isor ordered a new relief 1l1is definition is the most heavily litig:iu.>dor the four provided system for u1c tank: the order fonn indicatedtbllt the current relief in 25-5-1I (c).' Before looking 10 the judicial interpretationof Ibis systen1 \Yas"inadequale." Id. TI1ene,v reliefsysl'en1. ho,ve.vc r. was definition. se,•eral thrc.~holdissues must be addressed.The statute not installed prior 10 the explosion. Id. After the accident. lhe uses u1reekey temis: safety guard/device, manufacturerand OccupationalSalety and HcallhAdminisU'ation ("OSHA'') cited machine. lf a defendant can show that one of these requiren\Cntsis the company for regulato1yvio lations. Id. m 394. As it reversed not met, the plaintiffcannot maintainu (c)(2) claim. Firs~ the die Alabama Coun of Civil Appeals' reversalof summaryjudg courts have not defined whrtLco nstitutes u ·•machine" as lhnt word mem in favor of defendant. the coun focusedon three key focis: is used in 25-5-1I . The AlabamuSupreme Coun. however.hns (I) the tank had been operating with the original relief system for declined to use ~le followingd efinition since the panicular appa over 27 years wilhout incident; (2) !be knowledge Ihm the relief ratus at issue-a coal mine-bad already been found not to be a system needed to be upgmded:and (3) OSHA's ciintions.Id. ut machine:.. an assemblage of bodies that transmits forces in a pre 395-96. As for the ordering of a replacementsys tem, the coun determined manner and 10 a desired end." Pills v. BeaslL')•, 106 So. relied on Tumbow (discussed. <11pm) aod concluded thal mere 2d 71 I, 715-16 (Ala. 1997).Absent funher guidance, parties arc knowledgeof a problem does not equate to n substantial cenainty left only with what the coun has found nor 10 be machines: a coal tbat injury or dead, would followthe co-employeedefendnnt's mine (Pius s11pra;wyne 1\ Carr, 631 So. 2d 978 (Alu. 1994}; actions. Id. at 396. In addressingthe OHSA citations, u1ecoun Mallisl1C11111•. Kiker. 630 So. 2d 420 (Ala. 1993) (holding that relied on Harris (irifra)and concluded d1at if pre-accidentOSHA in1properplacen1ent of a ventilationcurtnin is not actionableunder citations were 001 enough 10 provide substMtir,Jcenainty under (c)(2) because the curtain is attached to the mine roof. and tile the Reed 1£.SL(as the coun held in Hanis). then post-accidentciu, mine is not a "macbine"); the humm1body (ume " Georgia CaJ. dons are not enough to maintaina (c)(J) claim. Id." & S11r. Co .. 670 So. 2d 889 (Ala. 1995); a respirator (Nami.rlov. Aki.a Chem.Co . . Inc. • 671 So. 2d 1380 (Ala. 1995). One possible 25-5-11(c)(2) or "Safety Device definitioncan be found in Wtbsrer'sDictiona,y, which defmes u "machine" as ·•a structure consistingof a fran1e\vorkan d various Removal" fixed and moving pans, for doing some kind of work.'. \\~bstcr' s The second definition of "willful conduct" provided in 25-5- New Unfrersal UnabridgedDic1io11(1ry I 080 (2d ed. 1983). 1l (c)(2) (hereinafter "(c)(2)") reads as follows: The coun has defined "safety device or gunrd" as ·':io inven tion or contrivance intended IQ protect against injury. damage or (c) As used herein. "willful conduct" means ... loss that insures and gives security lhal an accident will be pre (2) The willful nnd intentional removal from u vented."' Moore I\ Reeves.589 So. 2d 173, 177 (Ala. 199 1). machine of a safety guard or safety device provided The Moore court went on 10 add 1h11La safety guard or device is: 42 JANUARY 200 3 1.hatw hich is provided, principally, out not exclu 3. The removal of the safety guard or device must have sively, as protection 10 an employee, which provides occurred with knowledge that injury would probably or some shield between the employee and danger so as likely result from that removal; and to prevent the employee rrom incurring injury while 4. The remow l of the safety guard or device must not have he is engaged in t.beperformance of the service been part of a modificationor an improvementthat rendered required of him by the employer: it is 1101 something 01e safety guard or device umK\CCCSsaryor ineffec tive. Lhnt is n co,nponent pan of lhe machine whose prin cipal purp<>se is 10 fncilita te or expedite 01ework.. Harris, 585 So. 2d at 835. On iLSface , (c)(2) appearsto (jmil tbe willful conduct under ~1at Moore, 589 So. 2d at 177 (emphasis added). definition 10 situations where !here was an allinnalive removalof Finally, the coun defined "manufacturer" as "[not only] the a safety guard/device. However,th e AlabamaSupreme Court h,L5 original mauufacmrer (one who produces articles for use or broadened that definitionin several ways.'These expansions will trade), bm also a subsequent entity that substantially modifies or be examined before various (c)(2) cases are reviewed. materially alters the product through the use of different compo In an early 2-~-5-11case, the AlabamaSupreme Court aniculat nents ancVormethods of assembly.'' H(lrris v. Gill, 585 So. 2d ed lhe first expansion of the stamte. See Bailey 1< Hogg, 541 So. 83 1,83 6 (Ala. 1991) (discussed infra) . 2d 498 (Ala. t 989). The plaintiffin Baileyhad u thumb amputated 1no rder 10 maintaina (c)(2) cause of action, 01eplaimiff is not by n pulley inside a concrete plant: his employer bad recently pur required to provide evidence demons01Jtingthat the co-employee chased the plant from noolhcrcompany. Bail ey. 547 So. 2d at 498- defendant(S)intended to ham, the plaintiff_Rath er. it is the willful 99. The machine arrived with a guard designed to cover the Injury or intentional removal or a safety guard or device. regardlessof causing pulley,but the employerh ad failed to install die guard. Id. the intended resulL.that will incur liability under(c)(2). Bai/I!)• v. at 499. The co-employee defendant testified that he knew the H ogg. 547 So. 498 {Ala. 1989) (discussed infra). However,fore guard was delivered and not installed,but did not know why it seeing the danger resufljng from the removalof the safety was not installed. /1/,The coun reviewedlh e legislative intent guarcVdevicei., required for a (c)(2) claim. To establish a pr/1110 behind 25-5-11 and noted "the imponant public poUcyof promot fade claim under (c)(2), t.bep laimiif must show: ing safety in the workplace and the importance of such guards in I. Titeg safety uard or device must have been provided by providing such safety.111e same clangers are present when :m the manufacturer of Lhe machine: available safety guard is noLi11S1alled as are present when 01esame guard has been removed." Id. at 499-500.' The court held that a 2. The safety guard or device must hnve been removed from willful and intentionalfailure to install a guard providedby the the machine: I •• ,.1J ~1~tude ,iit to'Pacylty ., Ratio 6 Clinical " · Skills 44 JANUARY 2003 manuf:lClureris the equivalemor removinga gunrd or ck.--vice.3nd not be made). Finally, the coun has held that merely asscning i, thereforeactionable ronduct under (c)(2). While this opinioo tlt11a safety guard/device should hnvc been ploced on • seem.<10 m:iJresense oo scvernlIC\'Cls, tbc coun.at best.llOICd machine is not sufficient for mninlllininga (c.)(2)clnlm ,f the cviden<>c1ha1 Hogg merely negligentlyor recklessly failed 10 plnrn1iffcannot show lhn11he guard W11Span of the originally ins1111l1he guard. which ii nrgunblya depanure rrom 11\c"willful" manufnc1uredmachine or 1hn1s uch a guard is avorlnble,even if s1rn1d11rd found in u,e pinin langungeof 25.5. 11. 'Olis expansion, the employer was Ilic mnnufnc1urer. Kru.rzrw. 1111 \I IH\11\ I \U)IR 45 case, the coun has held that tbere is no duty to upgrade safety has also observed that ..l tJhe position be occupies. without devices after delivery of the machine from tbe manufacturer. more. cannot serve as a basis for a co-employee's liability" See Then11alCo mponems Inc. v. Golden. 7 16 So. 2d 1166 (Ala. wider (c)(2). See Tho111pso11v. Liberty Mut. /11s. Co., 552 So. 2d 1998); see td.w Crawford,,. Mt1rtln,733 So. 2d 387 (Ala. Civ. 129 (Ala. 1989). App. 1997) (aflirming summary judgment in favor of the co· employee defendants when neither the "safety device" at issue 25-5-11(c)(3) or "Intoxication" nor its recommended replacement system were provided by the The third definition of"will rul conduct" provided in 25-5- manufacturer). Pinally, the coun has held that even lf OSHA l l(c)(3) (hereinafter ..(c)(3)") reads as follows: cites an employer for failing to have ccnain safety guards. if the machine was delivered by the manufacturer without those (c) As used herein, "wiUfulconduct" means .. . guards, co-employees caDJJOIbe liable under (c)(2). See Harris (3) The intoxication of another employee of lhe v. Simmons, 585 So. 2d 906 (Ala. 1991). employer if the conduct of that employee has Several cases provide some insight imo the liability of supervi wrongfully and proximately caused injury or death sory co-employees foUowing a plaimiff's on-tl1e-jobinjury. In 10 the plaintiff or plaintiff's decedenL but no C1m11i11ghamv. Stem. 628 So. 2d 576 (Ala. 1993), the plaintiff employee.s ball be guilty of willful conduct on was injured by a punch pres.~tl1ai was originaUymanufactured account of the intoxication of another employee or witl1a selector switch allowing the opera.torto select either the another person. palm buctonsor the foot pedal as the activa.tiondevice . The employer had previously modified lhe safety devices by adding Unlike 25-5-1 J (c)( 1). where there must be a finding or intent wrist bracelets designed 10 pull the operators' armsclear of the to injure, no such requirement is present in (c)(3). See Hobde11 press :u-eawhen the machine was activated. but those bracelets v. S11ow,551 So. 2d 317, 319 (Ala. 1989) (noting that unlike failed at the time of lhe accidenLCw111i11glwm, 628 So. 2d al 577. other provisions in 25-5-11, (c)(3) "does not require an intent to Plaintiff offered evidence that tl1epalm press buttons had been intoxicate the employee"). deactivated. Id. at 578.The coun reversed summaryjudgment Only two appellate cases have directly addressed this defini and held that whether or not the addition of the bracelet system tion since its passage in 1985, both decided in the lore 1980s. made the palm buttons unnecessary wasa jury question. Id. The first case was R11dolph" Gwin. 526 So. 2d 581 (Ala. 1988). ln Kirk v. Klement s. 628 So. 2d 580 (Ala. 1993). the plaintiff In that case. tbe plaintiff, a garbage collector, was injured when had three fingers ampuu11edwhile operating a grinding the garbage truck backed over him; be sued the co-employee machine; a piece of wire mesh that was designed to cover the driver of the truck. Rudolph, 526 So. 2d at 582. TI1eplain tiff grinding wheel was not in it proper place aod plaintiff's band alleged that Gwin had been drinking a beer immediately prior to slipped ~1rougb a smaUgap and came imo contact with the tl1eaccidem. Id. He could not, however. provide any other evi wheel. Kirk, 628 So. 2d at 581. The plaintiff testified that he did dence of intoxication. Id. at 583. In affim,ing summary judgment not know who was responsible for causing the gap in the wire in favor of lhe co-employee defendant. the coun f1tstlooked to and tl1eCO·cmp loyce defendants testified that they were not various definitions of "intoxication" since the legislature did not responsible for the defect in the mesh. Id. The court pointed 10 provide a definition io lhe stawte. Id. at 583-84. The coun wem an important step taken by the co-employees in lheir motion for on to note that "one who is ·intoxicated' is distinguishable from summary judgment: making a prima facie case of nonliability. one who has been 'drinking,' because not every one who 'drinks· id. at 582. This showing shifted the burden 10 tbe plaintiff to an alcoholic beverage will be 'intoxicated."' Id. The court con present evidence that the co-employee defeadu.orswere respon· cluded that mere evidence of drinking, without evidence of sible for causing the wire mesh 10 be altered. Id. While this bur intox.ication,will not suppon a (c)(3) claim. Id. den shifting is nonnal at lhe summary judgment suige. it shows The other (c)(3) case was decided a year after Rudolph. See how a defendant can place the burden on the pl:unriff to bring tlobde111\Snow, 551 So. 2d 317 (Alli. 1989). Jn Hobde11, an forward specific evidence of liability beyond me_relya lleging a injured plaintiff (and his wife) sued the owners of the company responsibility for removal of a safety guard/device. for which he worked for the actions of a co-employee (Holt).' An important case io tl1ccontext of claims against superviso flobden, 551 So. 2d at 317-18. Pia.intiff offered testimony thm ry pe,·sonnel is Rai11esv. Brow11i11g-FerrisJ,u/ust. of Ala., l11c., Holt was intoxicated on lhe day of the injury and that the Snows 638 So. 2d 1334 (Ala. Civ. App. 1.993).In Roi11es.the plaintiff had purchased wine for him on several previous occasions. Id. was .injuredwhen the door of a vehicle opened unexpectedly. at 318. The Snows admitted to having knowledge of Holt's Raines, 638 So. 2 46 JANUARY 2003 ry judgmcm in favor of lhc defendanis. While this conclusion ing OUIbefon: delving into the casebw. Fir I II I \ I \ ll l \f t I \ I\ l I N 47 claims are genemlly difficult for plaintiffs to win. The develop J:re$Sin,uiy where OSHA had previously ci1ed the company for regulauon vio'41tions ment of 25-5-1J claims is consistent, on the whole. with the relatedlo punchp,es:m: coun found that ·sub$13n1ial cen:ainty" prong of theReed t8SIwas no t satisfieddespite 1he pr io, citationsfor 1he punch press since the J>re$$ it legislature's intent, olnlost20 yearsago, wheo passeda nnr~ hadbeen ope,ated lat an wended periedwilhout an ,njuryl,Wairen • We$tet, No row co-employee exception to lhe exclLL~ivity provisions of lhe 2001010. 2002WI. 168648 (Ala. C-.V . App, Feb 1, 2002)lalfinn ,ng summaryJudgment Alabama Workers· Compensation Act. • ro,defendant where onty one OSHA citation had been issued and since ii wasClot a·repeal''ottense. there could not be · reasonahlecertainr( that an injury would followthe co-e11'41IO)l!edefendantS' ac11onst. Hallmark• Dul.e, 624 So . 2d 1068IAla , Endnotes 19931lhold1"11 that thetail~re 10 inq,ect • pipesystem 1ha1 was ordered to be OneLro! rtainissue n,gan!lng ptope< plain111fs can beloond In 25·5-l t(d) Thatpio drainedmay t,e negligence.bu1 is no1ll>e type of conooctthat i s actionableunder Yisioo1nctudes ll>e following sentenee: ·,r 1heInjured empl0'(08 has nodependen1 . 1t•1t theplaintif f was injuredwhen a pipehold,ng caustic li quid burs,v.1\lle he was thapersonal rep resentaiMI.in the even1 of de.a-th_ may br1~ a civilaction. agalns1 ane,npt1ng10r.epa,r a leak In that plpe after his SUJIE!rvisor falled to inspect the tan\ theother pany lo rewverdamage.a without regard co thi schaptm • Thisph,ase may 10 veofvthat the s')'Stemwas drainedprope~yl be lnteljlllltedto g,,i,1Ille pe rsonalrtl)l8$t11Ul lim of a deceasedemployee Ille 4. Ove,60 per<:em of therepo«ed 25-5-ll(c) cases addressed a claimunder (cX2). In add> oghtto maintain a c:ause of actionagail'l$t co1MT1plo','ees forwlllhd coOOucl tionto mjuries arising from a spocificaccident, tcX21 claims ~n a1sobe ma.tlained tor ttowever.lho ease law is any 1hlngbut c learas ,o whother I.his phrase createsarl<1tb · -pauonal diseases. SellNa!mslo • MD Chem.Co .. Inc..671 So 2d 1:m (Ala. ef groupof si-operplaintiffs-the pwsonal represenra1iva afa dapendentless 1995!lthe safety device at issueW8S a _.tor.but the coonheld lhat since th e deceasedemployee N)r a discussionof this is-sue. see Tucte,v Molde11,761 So. 2d hi,nanbody i$ nota ·machina;Ille plaintiff coold not malnUlina 1cX21clairnl 966(Ala . 2000), S 'Miena deVic:eserves routtipl:e purposes. if one of 1hepurposes is t opromo 1e saletv, 2. C.ses-l11q the ·.,..;ght ofevidence· tor lcKIIclalms include· Beville• 1hecoun Pas held that a (cXZIclaim can be mainllllnedIf thetdevice is ,em~ 01 Spencet, S6SSo . 2d 1224(Ale 1990)(attirm1ngsunvnary Judgment lo, co-employee no, repalred SooSmith v. w.,11ace.661 So . 2d 207 (Ala. 1995) lholdl ng tha1a IDOi defendamlollcwing a manbos(driven by 1hedofendanU acc,dent where IWU otlle1 rest saivodrwo purposes : tohold tools an:! to protettthe machfn& operator's hams pauengetst.estified lha1 Speocer was not driving 100 tast and that 11 wa$ common fro,nbeing pulled into Ille macllinal formanbuses ID derail ~ Grunesv. Stewart. 628 So . 2d 467!Ala 199:3)(re'll!rs,ng a 6. TheBar7aycou11 also noted."(l(o hold that Illew llltulend ln1en1ional failua 10 iurvverdict for plaintiff in a wo1kplaceex;posure ~se wtlereplarntitf itUegad that ho Installan awilable safety guard is not acuonable would al k>'wsupeMsory eflll)loy· contractedleukemia : courtheld that 11 there ls co,,f11cHngresi1monyes 10the cause eeslO o't'et'See memtify of rMrN machinery. instnJCt their .employees not 10 Install o1 the Illness.the co-employeedefendantS a,uld nr>1 """" kMwn"wllh any degrae the safety;uards. and then,when an emplovee is injureddoo IDIha lackor a safety of certalnw,nuh 1eS$$Ubs"tantial ce:ttainry· tha t theexposute wooJd cause Stewart guard,claim imnmty fromwi~ • &,iley,647 So . 2d at 500. 01 the court to OOlltractleukem,a t Leev , longll(>(nSreal Kevin W. Petton William L Campbell. Jr. );ow, P.t11oninalces kl the8irmir91arn olf1Ce of Maynard. Wl~rnClfl'.(lbell p11Ctices inthe BlrmilYJha,nollice. of Mayaan1 Coopet& Gale,PC Patl~ rl'Cl!Mldhit ~te 48 JA NU ARY 2003 here wns a gentleman. whom we shall refer 10 as Junior, who committed a burglary, wos caugh1, tried, coovicred T ond senrenced to the pcnirenrlary. AOer having served nbou1eight ycnrs, he was released on parole. One week inro hi\ parole, he was c:uughrcommining a burg)W')',WM tried. con victed nnd sentenced.After having i.cr.·cd an additiional ten ycnn. he W1l5 paroled. Abour two weeks into this parole period, he wa, caught committinga burgl:uy- and I got appointed to represent him. JuniQrhas spent aU bur three weeks of the past 18 years ia the penitentinry. He does nor know thar you cnonotenter someone else's rcsidonce.J unior is nor among the inrellectually blessed. During the course or trial prcpurnrion, I inquired of Junior as 10 why he enrcred his neighbor's residence. He told me rha1he wc111in 10 u I II I \ I \ R \ \I -\ I \ I\ ) I ll 49 Spotlight On a Section: Family Law Section Celebrates 16 Years of Service R> I/ORI\ I. RI///// ;// ·\ \{) (;OR[)O .\ ' fl.-\// f.l' be Family Law Section of the Alabama Stare Bar was created in 1984, and the first chairperson 10 serve was T Sam Rumore, The section is generally recognizedas being one of the most active sections in the bar. from its incep tion until the prese1Jttirue. Currently, the sectioo has over 200 members. and the current chairperson for 2002-2003 is Leslie Barineau of Birmingham. A1 this year's Divorce on LheBea ch XV I semi nar held May 30th through June 1st. the Family Law Section cele• brated 16 years orservice to its members by inviting and hosting all of the past Pa.\'Iclu,ir,,trsons fitld quesrio11sJro11, the audlence <1111'0rious fanlily chairpersons 10 return a., t,,._,issue.f during Divorce ou th~ Btacli - picturedl~ft to right:Sa,,, program speakers. Rumore//985), 1im Smit It (1997), Jerilee Swl,er/in Ll!wt1/len ( 1990). "Welcome Back" was St<1•eAmo/ti ( /989), lion. Vometta MtPlterso11( /986). and J<>t! the theme song of Lbe Sullivan ( /987). Cttrl't!ntchair,1tr:rot1 Leslie JJarineau event as all or Lhepast (2003) w;,J,hi!.r son, AfttttuJdtr chairpersons (imroduced by an appropriate "Golden past chairpersonsrece ived a commemora1iveFamily Law Oldie" musical selection) returned 10 present various timely pro Section Medallioncommissioned espec ially for this reunion. grams, includingu case law update, the art o( mediation and a Hosling this year's celebration of 120 anendees were Gordon panel discussion addressing typical family law issues con Bailey (past chair 1998) and J ulie Palmer (seminar director). fronting the members in their daily law practice. Eacb of the along with the section chair for 2002. Noah Funderb urg, and chairperson-electfor 2003. Leslie Barineau. During the three day seminar, the section sponsored the Second Annual Silen1 Auction which raised over $4,000, providinga donation of $2,500 10 the B.ig Oak Ranch. The amount of knowledge dis semina1edal this seminar every year is only exceeded by the amount of l'un 10 be had by all. PaoicipantSenjoy a fun and rela,ed atmosphere with well-auendedand enjoyablesocial events. highlightedthis year by the section's own rock aod roll band, "The Marital Assets." Mark your calendar for next year's Divorceon rhe Beach XVTJI. which is set for Juoe 5th through 7th, 2003. again at Sandestin, Florida. "Fanilly Law Retreat 10 Beach" is a seclion joinl venture with ABICLE and is held every year in October in Gulf Shores. This Pt1stcltairperso1's plctured witlr tl1eirFa1,iil) 1 Un•, Secrio,r111edalUons seminar is somewbn1less rambunctiousand more low key than an left 10 rig/11: Front row- Tim Smidt ( 1977),Anry Slayden ( /994), Divorceon the Beach, atLtactingbetween 110 to 125 anendecs. lion. Vmi,:c1111McPlterson (1986), Robin B11m:II/2001), Jeri/et S11tli.r/i11le>.-alle11 (1990/, St.. •eArnold ( /989), Sam Rumq111( /985), featuring both judges and auomeys as speakers. Cotr1on Balley ( 1998); Bnek row- Randy Nicltqlt / 1992). liemt/011 For 1bepast number of year.;,t he section has published its own Ing,/ /995), Bill Blcmc/,a,rJ( 199 3/, Mi~ Manasco( /99/), Joe S11/livoa newsleLter,The Alabama Family Lowyer, with articlesof inrerest ( 1987).Ron Boyd ( /999). cmd Dmv IVltirmire( 1996/. Not Pic1tm:d 10 its members.section informationand interviews with family Rick Femaml,ucq( /988) a11dJ olttt Wood/2000) law practitionersand family law judges. Several years a.go,the 50 JANUARY 2003 section dc:cidcd10 creme and disuibute IO all members a directory wilh II listiug or all sce11onmembers. both nlphabcticnllynnd by counties. to foc1hta1ecommunication between section metnbers and to !lllOWfor refffl'lllof business.At this p;IStAlabama Stnte Bar AnnuruM eeting in July. the section horu,d approximately80 members ror our annllllldiscussion or cwren1case law Md devel opments in the proc,iccof fornily law. Additionally,in 2000. Noah Fundctburgcreated a lis1serve for the section nllowmg mcmbct'IIIO •·char" nborn areas of interest. seek advice and apprise members uboul topics of significance.To panicipnic. send your e-,nnll ndclrt.\Sto Nonh Funderburgm [email protected]<1.111cservice is free nnd ~mitod io Alabama lawyers. ·mesec tion nlso maintains a Websi te with basic infonnu1ion nbou1t he sec1ion and, during the lcgisloiivcses sion. trucks tile progress of bills !hat penainto domestic relmions and relnicd nrew.or pmc1iceal www.alafamlaw.of8.Although 1he section dOC6 not 1111dls prohibiled from espousing an oOkiul po,.i 77u,s«tlon s Silent AuCJionmised ovtr SJ.000for t/1/s)Ml''.r law sdiool tion on My lcgisla1ion.ii docsprovide infonruuion IO its mem scholarshipsand a .U.500i/an,,t,on to tht Bit Oak Rmu:Ji. bers regarding lq;1slntion!hat ID3Yaffect lbcir practicei.o lha1 individu:dmembers may do so on their own. For the p.1.,tlwo >=· the $CC!ionoffered a ~Ro;,d Show'' con the quality of life for !he domesuc relations nuomey in hosting sisling of meetings,cocktnil parties or a o.E progr..m 10 localbar nnnualevents which encourage comrndety.und by disseminating associruionslhro11ghou1 the swe. If your local bar association up-to-dale infOflllatiooon new lllllUICSand case law, as weUas would like a section speaker 10 visit your area.please conlllCI promoting professionalism and civility in 1hc bar. To join the Mcmbc™1ipComm .iuee Otair Melod y Brooks or Anniston, section, contact Brian Hu IT. 280 I Unl\'en;ily Blvd., SIC.302. These oppo,rnnities for suuewide discussion of family lnw 1opics Birmingham 35233. (205) 930-9000. • coupled wi1h1he scc1io n's memor program (which pairs new nuor neys with "seasoned" :iuomeys) illustrate lhe section's cnde:wors 10 aug111c111c,io h mclllbcr's family law pmctice. ln 2000. under Robin Ourrell 's leadership(PJl.$ 1c hair 2000), section scholarships wereestablished ,u ~1cU niversity of AlabamaSchoo l or u,w, Cumberland Law School. Miles Lnw School. Jones Law School. and lhe BirminghrunSchool of Law. Theseare $500 scholw~lups whichwe nwnrdcdyearly 10 the s1oden1wilh the bestocndomic grades in lhc F:imilyLnw Secuon m each school. on Domestic ttlntiol\$ low is a very stressful pn,ctic:ellttll by any IJIC3$Ul'C, ttqui.ring nuomeys10 have knowledge in !he areas of real esuiie, 1ax.probate. business..and other ttlnlCd pnicticc k areas. as well as un abili1y to guide clients lhrough 311 emotional time in their lives. The Fnmily Law Section sui,•es 10 enhance The Familylaw Sectionof the AlabamaState Bar presents NDivoroeon the Beach XVll,NJune 5-7 , 2003 SandestinGolf and BeachResort , (8001320·8115 n1t1 Dl,'OrtctJJt ,,,~ /1,:ach eock1,u'l 1,anycrowd al rlu!. pres~111a1lonof (Hotelonly - Group#3103231 1he,11 cd"IU011s10 1/1e Jifl.ft t•/rr,irpc,~rou.r.fof/1Jwedby cnte1·u,i11111c1u fiv n, tht ;J~c,1011b Ill/ \I \11\11\ I \\\~IN. 5 1 Alabama'sNew Morta eBrokers LiuensinAut /J) \ ' It\ \I II /,\/I/IA \I n May 30. 2001. Governor Don Highlights of the Siegelman I II I \ I. --\ H \ \I \ I \ \\ ) I R S3 1he Mongage Brokers license for eaclr office location. § 5-25- ~~;;;~ LicensingAct explicitly pro- 4(b). The cost of the license is $500 per : vides J3 exemptionsfrom year. plus a$ LOOfee 10i nvestiga1c Ll1e iis applicability.§ 5-25-3. application.§ 5-25-5(c)(l). Applicants If qualified for an exemp- must have a n1inimun1ne t ,vorth capital t.ion.then the mongage of $25,000 and six lcuers of reference broker is not requited Lo conceming the applicant's experience obtain a license or 10 and reputation. § 5-25-5(c). The Act also comply with any other requires applicanis to ob1ai1112 hours of provision of the Act. continuing education approved by one of Thus. the second thresh• the following entities: the Alabama old qucsti.on to consider Mortgage Bankers Association.th e is "does ~1emonga ge National Association or Mongage broker qualify for one of Brokers, 1beAlabama Mortgage BrokCl's the exemptions under the Association, !he Alabama Bankers A ct?" The Departmentcon Association. or the Natio11alM inority sm,es the Act's exemptionsnar- Mortgage Bankers Association. § 5-25· rowly. See U11ile1fCo mpanies 5(b)(6) (as amended). Le11di11g v. McGehee, 686So. 2d ApplicantS for a 111ot1gagebrokers 1171. 1178 (Ala. 1996). license musl complete a two-page appli Most of the exemptions in the Act are cation under oath on the depa11men1·s for persons already subject IO regulation goldenrod-colored forms. The application persons looking10 b uy or refinancea by other governmentag encies. For exam requests informationon the applicant's home on land localedin Alabama. TI1is ple, stale and federalbanks. credit unions, principalsand officers.The depan111en1 definition implicillyincludes o ut-of-stale trust companiesand insurancecompnnies cannot issue n license to ony applicam mo11gagebro kers brokering homes located are exempt.§ 5-25-3(1).Lenders licensed with a principal or officer who has been in Alabama. Lenders who acluaUyfund under the AlabamaConsumer Credit Act convictedof a felony or any kind. or any the mongage are sliII subject to Licensing "Mini•Code" are cxempL § 5-25-3(2). crime. including misdemeanors. involving under the pre-e,dsting Alabama Consumer National HousingAct lenders are exempt breach of trus~ fraud or dishonesty. § 5- Credit Act "Mini-Code."§ 5-19-1 el seq. if they are approvedby the U.S. 25-6(c). TI1efollowing auacbmems must Some self-identifiedmongage brokers Dcpat!mentof Housing and Urban accompany the :ipplicaiion: (I) resumes may actually be creditors under the Mini Development (HUD) 10 conduct business or all owners or principals: (2) a business Code,as opposed 10mot1gage brok ers as in Alabama.§ 5-25-3(7); see U11i1cd plan; (3) proof of continuing education: definedin the new Act. For example, the Companies Lending v. McGehee, 686So. (4) a financial statement prepared by a deparunent distinguishesbetween m ot! 2d l I 71, 1179 (Ala. 1996). Securitiesbro Certified Public Accountant;(5) three lel gage brokersthat "table-fund" loans from kers are exempt. § 5-25-3(10).Even state ters of referenceregarding the applicant's self-identified mongage brokerswith bo110 bar membersare exempt when their mort reputation in the community; (6) three fide warehouselin es of credit.' Mot1gage gage brokering servicesare inciden1al 10 leucrs of reference from lenders; (7) a brokel'sthat merely" lllble-fund"loans their legal practice. § 5-25-3(3). certifiedcopy of its Articlesof must obtain a 111011gagebrokers li cense. The Acl also provides exemption., for locorporation and By-laws. or equivalent 1 while · 1no11.gage.bro kers" ,vithwarehouse rare instances of mong:ige brokering. For documents; (8) a copy of itS customc.r lines are treatedas lendersthat must exan1ple, a person may broker one mon broker agreement:(9) a$ l00 cenified obtain a Mini-Codeli cense. gage loan a year without complying with check and a sepa.rate SSOOce t1ified Jf a business falls withinth e definition of the AcL §5-25-3(8). Pe.rsons performing check; and ( 10) copies of the driver's a mo11gagcbroke r. then, generally.t he Act: an act relaiing to mongage loans pur license of each owner and principal. Excludes specified persons from its suru1110a court order are exempL§ 5- Upon receiving a completed applicaiion applicability. 25-3(4). And employers who offer 01011- package, the Depamnem conductsan Requiresmongage brokers to obtain a gage brokering services for their employ investigationto verifythe information license from the State Banking ees are exempt. § 5-25-3(9). submittedand 10 determinethat the appli Dcpanment. cont is "of good charac1er and ethical rep utation and will operate honestly and fair Establishes specific duties and restric Requirements to Obtain ly within the purposes of this chapter; th:u tions for licensee.,. A Mortgage Brokers the applicant demonstra1esreasonable Provides enforcemen1 mechanisms and financialresponsib ility; and !hat the appli penalties for violations. License cant has and maintains a placeof business The Mortgage Brokers LicensingAc1 in this state:· § 5-25-6(a). Moreover,the requires all nonexemptmongag e brokers "Department may not license any appli Exemptions from the Act to be licensed by the State Banking cant unless it is satisfiedIhm the applicant Even if a business faUswllhin the Departmeni as of January l, 2002. § 5- may beexpected lo opcra1ci is mongage statu1ory definition of a mongage broker, 25-4(a). Mongage brokers must obtain a brokeragea ctivities in compliance with 54 JANUARY 2003 thc laws of this SUIIC."'§ 5-25-6(b). The must maintain a physic:ullocnllon in this reviews during its CJ Ylc,tCoai.t Lile Duties and Restrictions SlS0,000Levt.1 Tnm Co\'c.mae Of Mortgage Brokers ('.talc.Sckc1 PrtftrrcdNooSmoku Mortg:igebrokers must comply wi1h AOE: lO ~ 4~ 50 ~! 60 IOYt.ar SIIS SIii $140"° $?1 ) $19) f.<90 m > several specific directives under the 15Ye• Sill $1)5 Sl68 S?'IO $.IA) $650 St.O» Mortgage Brokers Licensing Act. ln :iov.. Sll58 $110 sm s.m $S7S S36) $1,418 addition. their consumer loons must com• W e! I Co.i'lt Life ply with the subsrnmive requirements or $500,000Lt w'tl"le.m i Covcnigc t.111le,St. lttt f.'ff(tmd NonSmoker the Alabama Consumer Credit Act Annu:alPrcnuum "Mini-Code." Pertincn1rcqui remenl.'!or I\OE. .ao ,s cxb law wt11be nddressed separately. IQYa, SIM SIU ss» $930 S1.49S I.Sy.., S2:!0 Sl20 w, Sl.250 S1Jl20 I. Mortgage Brokers Licensing ACI 20v~..- 1285 Sl90 $1, lOO Sl.67S $2.785 • A+ blinJ b)' A.M. ~ The Mortgage Brokers Licensing Act \\ 'c:teCo.,11 Ufo directs licensees 10 n rew simple ministe Drane Insurance rial nets. The Act n.-quiresnil licensees to Carter H. Drane conspicuoosly poSItheir license in lhclr ploce of business. § S-25-S(b). Licensees (800) 203-0365 may not transacl businessunder any Lifelnwruct • Emplo)'te'8cncflu • E,.aMt Pia.Mina• A1111utlle,,. mhcr name except the name designn1ed I.ET US FAX YOUA QIIOTll on ll1e license. § 5-25·8(d). Licensees lllf II\H\11\/--\HllN 55 The AlabamaConsumer Credit Act Anotherpertinent issue to mortgage "Mini-Code" proscribes certain substan brokersarising under tho Mini-Codefor tive and olher regulatory requirements consumerh on1eloans is lhe Mini for consumercred it trnnsactions conduct Code's prohibitionagainst prepay• ed in Alabama. § 5-19· 1 er seq. Except ment penalties. § 5-19-4(c). as provided in section 5-l9 -31, the Mini Prepaymentpenalties are additional Code's resrrictfonsapp ly to consumer fees borrowersroust pay if they loans whe~ier the creditor is licensed pay-offa loan early. Generally, under the Mini-Code or noL McCanha v. Alabamais a "no prepayment Iron and Steel Credit Union. 373 So. 2d penalty"s1a 1e. However.~ iere are 328. 331 (Aln. Civ. App. 1979). some Limitedexceptions found in Therefore, lhe Mini·Codc's restrictions state law when a prepaymentpenalty on consumer home loans also apply to may be assessedon home mongages. the loans closed with the nssiStllilce of The exceptionsunder state law are clari• mortgage brokers. fied in Mini-Coderegulation§ 155-2-'2- The Mini•Code limits lhe types and l 1(4). which states as follows: amounts or rees that may be charged 10 Prepaymentpenalties may be pro consumers in home loans. The Mini videdfor in a consumercredit 1.mos Code does not specilicallyauthorize fees nctioncon tract and assessedin a pa.id by consumers to mongage brokers. simplein terest transactiono nly obtain a Mini-Code license or if the However.pcior to passage of the lender is HUD-approvedmortgagee. wbere the originalaniount fillanced a MortgageBro kers Licensing Act, the Mfoi-Code section 5-19-4([) provides a is equal to or greater ~Ian S2.000 Dep1trtment allowed mongage brokers to list of other fees lhat may be charged in and (a) lhe transactioninvolves an be paid under the Mini·Code's five·points interestin real propeny and the home loans. e.g. fees for title examina limitation.§ 5-19-4(g). Section 5-19-4(g) creditor is either au approvedmon cion.ti tle insurance,deed preparat ion, allows credilOrsto charge and coUect gagee under the provisions of the appraisals. etc. from borrowersn maximumof five per NationalHou sing Act or exempt cent of the original principalbalance of a from licensingunder the Alabama Enforcement and home mortgage as fully eamed, prepaid ConsumerCredit Act: or (b) ~10 Penalties poinis. Any fees charged and retained by creditor is a trust institution or an lenders not otherwiseenumerated in the The Mortgage Brokers Licensing Act exempttrust as describedin Section Mini-Code,including fees paid to mort delegates enforcementof its provisions 5-19-3l (a). In all other situations. to the Supervisor or the Bureau of Loans gage brokers, a.re subject to thi~ five-point whetherthe consumercredi t trans cap. Becauseth e Mortgage Brokers at the State Banking Department. § 5-25- action is simple interest or pre-com· 16. Penalties for violations include LicensingAct is silent in regards to the puled, the inclusionof a prepayment license suspension or revocation;civil amount of fees that mongage brokers penaltyis not pennissible under the may charge, the Depanment continues 10 penalties of up to $15,000 for "knowing" Alabama ConsumerCredit Act. apply lhe Mini-Code's five-poinLSlimita violations:an d evencriminal n1isde tion to mortgligcbr okers. Therefore. In other words. under Alabama law a meanor penalties of not more than one mongage brokers may not cbruge and mortgage broker ,nay close a home loan year imprisonment ancVora $1.000 fine. collect from consun1ersmore than five with a prepaymentpena lty wben the loan § 5-25-14 (license revocation);§ 5-25-16 percentage points, inclusiveof any amount is greater than $2,000, if the (civil penalties);§ 5-25-17 (criminal "poinLS"relaincd by the lender.> lender is out-of-state and not required to penalties). The primary way in which the Oepanmeot investigates violationsof the Act is by examining a licensee's business records. § 5-25-9(b). The bulk of lhe Department's staff arc loan examiners who go out in the field and personally visit eacb licensee.They nil carry srnte identification.wnic h they show upon entering a licensee's place of business for the first Lime. Each loan examioer works from an examination worksheet LO organ ize the review. Examiners will sample a selee1iono f the Licensee's loan files to sec if all the requireddocume ntation is Jeanne MarieL eslie,prog ramd irector present in each file and to cheek that the consumer has not been overchargedany fees. Licenseesare expected Lo fully 56 JA NUARY 2003 cooperate with 1hc e.,amin:uionprocess . commcnL The supervisor will consider consumers and lenders att expec1cd 10 Licensees are charged SIOOper c,rnmincr all wrincn cornmcmsbefore issuing lhc ~ncfi1 from lhc new AcL • per day for the examination. § 5-25-9(d). final rule. No regulationJ hove ye1been Once completed, nn examination rcpon promulgated under the Act. Is I hen forwarded 10and reviewed by the Endnotes supervisor. All licensees will then be sent Conclusion a filllll report of examination wrincn by Na,- AsscailllCIIIol Mm,- 1!robrs. the supervisor. which may include a Pnss:igcof Alabama's nc:wMortgage "Ill ~· •• Aa:m. Monuovtlt<1*en llUI' WY 2001Sllldr . av.t 1111 1/ ,Ht\/t I tll)/R 67 Howell Heflin Presents The Maud McClureKelly Award Ora nge B each , Ala b ama • Jul y 19 , 2002 he individuoJwe honor is a superb jurist whose uccom plishmems nnd contributions hove benefined hundreds of T 1housundsof Alabamians Utroughh er leadership role in 1he progressivedcvclopmeo t of U1e common law of lhe stme and coun1gco11snpplic.nioo of cons1i1utional provisions 10 prcvctll discriminationor undue hann 10 !he rights of women.b lncks. the needy. diSttdvnnUtged.buslocsses. woaers and !he injured during lhc 1urbule111yc:st$ of lhc 1970s. 1980sand I 99 58 JI\NUIIRY 2003 of 1he fl!lil in 1he South. Vince Kilborn. upon learning of her facuhy sclec1ion, remarked "she ha.\ made both of us proud." While al Cumberland. Janie co-nulhorcd 1wo books. Casl!J 011dMntuinls 011law Pleadingsin Alabt,ma with C. Bnnkcs1er and J Homll (Banner Press. 1966) and Alobamo PatremJury /11str11ctio11s-Cfril,working with judge, lnsrnm Beasley. Bill Sullivnn and 1hc 01hcr members of the commiuec (Lawyers Cooperative Publishing Company. 1974). I believe she was probably 1hc first woman lnwye,·in lhe South 10nuthor or co a111horn lcgnl book. I am reasonably sure 1hn1would be 1rue in regard 10 the stale of Alabama. Janie wrote numerous law Rl'Virw anictes. She wasnn excellcnl Jo,. professor and was honored when lhe moo,coun compe1i11onbegon to bear her nnmc. She camp:iigncd lhrooghoul the suue. pnniculady with women's groups, 10 suppon lbe new Jud,cinl A.niclc. Sbonly Cnrol Ann Smith. Janit S/10,a and ASB Pr Ill/ l/ lUIH\ / IU)/N 69 I think it would be appropriate to let you know what some Award'' by Ladies Home Jomnal in 1984, as one of the top ten womeo lawyers in the stale have expressed about Justice Shores. women or L990 by the Bin11i11ghamBu sinessJoumal. and as Helen Kathryn Downs wrote: one or the top graduates at the Universityof Alabama in 1993. and bas received honorary doclOl'(tldegrees from the University 'The primary reason tl1atJu stice Shores has always of Alabumn.Judson College and Jones School of Law. been a role model for me is her remarkable In 1998, Janie was honored by tl1e Board of Commissioners strength. l have heard it said that she has never of the Alabama Stale Bar when she announced her retirement. been intimidated by anytl1ing, and I find that 10 be If historians give the impact of the judiciary its proper due. an apt description. She has not only hurdled then Justice Janie Shores will undoubtedly be counted amo11g straight over any obstacles in her path, she hos the gre.its of American women. It is generally thought that his done it in sucb a way as to carve out avenues for torians rank Helen Adams Ke.lier and Julia Strudwick Tutwiler women 10 follow behind ber... She has single as being the most outstanding women of Alabama for their per handedly created oppOrtunities for more women 10 sonal accomplishments. While Helen Keller was best known engage in the private practice of la,v, advance in tlie primarily for ber triumphs over udversity. she was also an academic hierarchy :ti area law schools, :md serve activist for improving government for the benefit of individu at tl1e highest levels of the j udiciary." als. She was labeled by con.servalive renclionariesof her day as Celia Collins stated ... . . Justice Shores blazed a trail where "a socialist." Tutwiler's refom1cont.ribulions 10 education and no woman in the state had 1taveled before her." prison conditions caused advocates of the tl1en-stacusq uo to Caryl Priveu expressed these words: ''As the first woman 10 refer 10 her as "a naming liberal from Vassar." Justice Shores be elected 10 the Alabama Supreme Court. Justice Shores has ber detractors. but all shak.ers and movers for the gO()<]of served as a role model for women lawyers. To have n woman society do. serving on our highest courl assisted yoUJ1gwome n lowyers in In my judgment, the name of Janie Ledlow Shores should be gaining acceptance in the coumooms of our state." inscribed along with Helen Adams Keller and JllLiaStrudwick Sbe has been recognized with "The American Reroine Tutwiler at Llietop of the list of Alabama's great women. • Notice of Election Not iceis given herewith pursuant to theAlabama Slate Bar Rules 'Governing Election of President-Electand Commissioners , President-Elect TheAlabama State Ba r will elect a president-electin 2003to assumethe presidencyof the barin July 2004.Any candidate mustb e a memberin goodsta nding on March 1, 2003.Petitions nominat ing a candidatemust bea r the srgnatureof 25 members in goodstanding of the AlabamaState Bar and be received by thesecretary of the stateb ar on or beforeMaren 1 . 2003.Any candidatetor this officemust also submit w ith the nominatingp etitiona blaekan d white photographan d biographical datato be publishedin theM ay 2003Alabama lawye r. Ballotswill be mailedbetween Ma y 15 andJune 1 andmust be receivedat the stateba r by 5 p.m. on thesecond Friday 1n June (June 13.2003) . Commissioners Bar commissioneiswill be electedby !hoselawyers with their principaloffices in the followingci rcuils: 2nd; 4th; 6th,p lacen o. 1: 9th: 10th,pl acen o. I, place no. 2. placeno . Ii. placeno , 8, placen o. 9: 12th: 13th, placeno. 2 : 11:ith.plac e no. 2: 16th; 20th:23 rd. placeno . 2; 24th; 27th;29t h; 38th;and 39th. Additional commissioners will be elected in thesec ircuits for each 300members of thestate bar with principal officeshe re in. The newcommissio ner positions will be determined by a censuson March1. 2003and vacancies cenified by the secretary no latertha n March 15, 2003, All subsequemte rms will be for threeyeais . Nominationsmay be madeby peti tionbearing the signatures of five membersin goodstanding wi th principal offices in the circuit in whicht he electionwill be heldor by the candidate's writtendeclaration of candidacy. Either mustbe receivedby the secreiaryno latertha n 5 p.m. on the last Fridayin April (April 25,2003). Ballotswill be p reparedand mai led 10 membersbetwee n May 1 andMay 15. 2003. Ballots mustbe voted a nd teturnedby 5 p.m. on the last Fridayi n May( May3 0, 2003)to theAlabama State Ba r. 60 J ANUARY 2003 J AN I E L SHORES Receives the Maud McClure Kelly Award am proroundlyhonored IO TIii \I 111\'1\ I \\\JfR 61 HUGOL. BLACK Jus, 1ce Fot A LL :a ::."' :E"' CD a. m < HugoL. Black: Justice for All c... 3 CD"' A Biography for Young Readers, by Roz Morris , paperback , Seacoast Publishing, 2001 en r 128 Pages, mustrated , $7.95 z ~ CD ugo L. Black: Justice for A/I is one of the ini !!' tial offerings in an ambitiousproject: the c... ,.. H developmentof a wide-rangingseries of biog raphies of famous Alabamiansfor young readers. Publishedas a joint venlUrebetween Will Publishing. lnc. and Birmingham'sSeacoast Publishing, the Alabama Roots biography series provides elementary school teachers with a powe.rful 100110 aid in their eJfons to breathe life into Alabama history.To date, other Alabamiansfe.itured in the series are Julia Tutwiler, DanieJPratt. Emma Sampson, Bear Bryant. Hank Aaron. and Sam Dale, with books telling the stolies of Booker T. Washington, George W. Carver and A.G. Gaston, among others, on the way. Given the avowed mission of the Alabama Roots series, Hugo L Black is. nppropliately.wrinen by Roz Moms, a third-grade teacher at Hoover's Shades MouoininElementary. In lfugo L Black, she bas done a remarkablejob in addressing the controversies. chal lenges and triumphs of Black's life and legal career in a maoner fully accessible 10 young readers. Morris couples an engaging story-telling style that tlows easi ly across her puges with an impressive auention to his torical deto.il. No doubt it would have been easier for Moms to simply base her research on Black on Uie numerous works covering the senator ;md Supreme Hugo L Black Court Justfoe already in print for adult readers. Moms, however,was 001 content with such an approach. Instead, she went fru'lber, interviewingBlack's descen sure 10 the ugly realities of small-town racism in the dants and accumulatingo number of family photo lum-of-tbe-century South. and a growing desire 10 graphs to grace her book's pages. become on attorney. Black's young life. however,co n· Moms picks up Black's story with his binh into the tained its share of disappointmentnod tragedy-an bleak, hardscmbble Iife of his mother. Della, in rumI alcoholic father. Black"sbrother's accidental death. Clay County in l886. From there , she traces Black's and b.is failure lo earn a teacher·s certificate. Morris life through bis precociouschildhood in Ashland. touches upon them all. dewiling his early musical talents, a near-fallll bout On a lighter noic. Moms also tells of Black's half with influen1.a, his delight in auending school. exp()- beaned foray imo a medical education in 62 JANUARY 2003 B1nningham.Although a promising medical student. Block's lion or Black's role ,n &uchseminal ca.~• a.\ Bro..-n" B<>turl_of unhappy experienceswith the school's Cllda,'Crsc.tcmpliticd Education, Gideo11" \llr/111,•righ1or Kat,tnbac/1 " McC/111111 1ho old adage thm a law student is "a bright young person who Likely, 1hiswns a conscious decision on Morris' part. Those con' l scand the sighl or blood." cnscs are difficul1e nough l'or fu·sL-ycar lnw srudents to diges1 The Inner 1wo-u1irdsof Hugo l. Black recount Black's legal {or oL lens, they were for this reviewer). niuch less n founh and political career h follows him from his legal studies nl 1he grodcr. In n book aimed a, young readers. perhllps the focus Univenity of Alab:tma (where the University's ycrubool.ptt should indeed be on the p:ub to gmuncss If that was Morri <'s dic1cdthat he would one day be a justice on the Uni1cdS1n1cs inlcndcd focus here, then she hos succeeded ndmimbly. Supreme Coun) 10 a struggling low prnccicc back home in Monis is also 1he nuihorof two olhcr book. Setalabar as YourHome page Settinga labar asyo ur defaulth omepage is easy!fac hti meyou access the Web . you'll berou tedto the RSB site . There.you can count on the most up·lo·date informat,on abou1bar actwil1es andresouTCes I II I \ I I H \ \I I I I n ) I H 63 •01un1teerLawyers Program and receive 1/2" disk, free. This manual cove f;aw,including adoption; bankru post-divorce; guardian and cor1tie~1Yatc>t losure; powers of attorney; and low and mail to: Volunteer l..aWVler; N°'ttaomery, Alabama 36101.U ~ you the "Basic Issues of _,, ...... __ ,... __ o,w_-..1. ·------_....., ...... ,.....,, ..... ,_...... _ ...... ,_ .... _ .. Enrollment Form Alabama State Bar VolunteerLawyers Program J P.O. Box 671, Montgomery,A labama 36101 Phone (334) 269-1515, ext. 301 • Fax (334) 261-6310 • www.alabar.org Name Address Telephone/Fax Number Signature I will accept two case referrals in the following areas: O Adoption/Legitimations O Bankruptcy O Family Law O Real Property O Probate O Where you need me Get on the list of very important people. Enroll today!! 64 J ANUARY 200 3 !§!;, his ...... Mmsatl!IIGft .11.i.....'1.1 1• l\,r Uwdttl-1 Carl•t. .. h o.i.c-, \ obudw-I"" "' Thomas8 Noruin llmoe,yO. ~ RonnieE. kllhlr Joew Adal1\$ honor roll. l'"W"" ' AllysonC. l'ellrce LewisHamltran HoNlloB Kimbrough RobonH Brogden • • • • • • • • • • • • • • • • • • • • MichtlltPony FonettCRule Ph1ll1pE MIS0/1 JackCortiin the Alabuma State William Pfetfor C !mndOIISellers JosephC . Mt~I& OomaC. Crool.s \U1J~ fount) Wero,Plllftll leeB Williams Willi.amRlmcxe Bar recogni:::es Joe I. Boom Mor;E. Pilcher t:all,oaaCaaah J""1)11!Wlo ClrolD Cool< Christil!ooerts (..,c',..f.ow11, J.D.Mlllol>on>an th(' f ollo,cing !CmlllH Gllll>ons MirtD. llyan &t.wraSllrown 0eorve,-i Aobor16 RGllilol1 WilliamSalty --LIIRoyA. Colib WIA. DIii GeorgeT..-wd w~-- . lawyers fo r iheir X.....,,G~ lllMd p Shephe I I/ I \I l1'\\I\ I \\\)IN 85 JohnL Jernigan Uowto11C:ount y JanetM . Akers KimN. Sibl6\' !ladi,onCoont 1· MelindaL - Samuel Adams EncCAr 66 JANU A RY 2003 11-c..ci o...... 16Roct t\ql C N,cuon E.tt.vn V.1bcn Josec,11fault JomB &wneu Do,,1llasC r- ~H~ 1\Celi°n191 l.arry.llnd ly,wiB B)'O .....s FN,n ~F~ .l!meoL Wi,ght Janes.Joi-. ~AWCoxwel l SillH Fullel T*'R NMlc D. ColemlnY~ WiDlomB l:O'( Jeff 0. av,,ss Richafd H G,11 8. Diant P1111 DlrildB Zinwno11111n RuthL Pav.tit LlluraA Gtanmam H. LllwltGill GoorvoR Pa,~, KeithWatl /Ill \I \ll\11\ I \\\)IN 87 CharlesAdair ChrlesG. Tylor J. AlanBaty CalhyCatawonich Ur 68 JA NU AR Y 2003 l'9ggvC Hoolot Don8.~Jc -L- Kem,lhJ - MaMILS-.Jr. Jlffla A.lloMr W,,_L l.qll,c,e,11 Jello E.Homs lJso S Aolw-. v1111ona.si- AnnlHamlby J l.mnl 0. 9nlnO'Dell J 0..,..Stdl, RichardHorsley J°'"""' ICnslow1V Mad,.... w O'Kelley,Jr William- Rode,,H Roe EdwardS. S1oltrqen. 11 Kll'tl Houser Jom G lowlhor M Be1h0'Na1U AlanT Aogort HerbenW , s,.,. ClinrlosL HowOtd.Ill r,mou,yM Lupinacci MlmaelB Oclorn DouglasRog~11 GarnckL S1015Gf JMnosF. Hughey 6'NH1JOG lyM RiclwdF Ogle W. I<.Hogo11 Clla~eneI S1ov.,II Roberr8 ttulo MarkW M.lCO'/ "1omosL OhVlf,11 El-lh A.Roloncl FaUenvSlal'lr MelodyL Hurdle OctvlaBM.ldtson Jt,on M Ost>om Nicdt F Raffllno C.M•rUuong!II S-OHwlqs 611.~ lllYldf °"""' J.\ .... ftose.Jr. Ovis-R $~ J r.•dll9• 6'•6- - E.Pllluila s- ...... Hmy\Y S!Jq JeffieyB trbr l'luiolT Maodl lewuW Pago.Jr. Rxlw,I w Rowel led~ GleME. 1,eland D11nea,,Y Manley OeMIIG ,,.,,,.,i. N JohnRi. /Ill \/ \H\\I \I\\\}/ H 69 LindaWi!'st BrantL Parker R.Preston Bolt. J, , Bl""8H. Crutchfield Chnstoplle,M. GIii JamesH Wettcrma,lc Thoma,t Pal\eJ,Jr . Cha11es B Bonner ManleyL C11T1m1n,,Ill W, MichaelGlll,on JOiinF Whitaker JonathanPippin JohnW. Boone WilliamM. Ctt,ninghM1, J, Walterl. Glime,,Jr . G.Grego,y Whita Rlc:J"'11Raleillh JomesK . Botele<.111 JamesG. Curenton WilliamB. Gi-A1an J. Marl 70 J ,\NUARY 2003 SamW- JS~legg l'1toolaA. ~- Mail.l l!tddon SaraMIStow.Ill IW'- J. luHferJr. klrm E Looo.Jr. Stl!MIC Moore lw..H~ NmM 1,1 Stoel- -·JI MtumMl.iodqwt-~ Tffll'A. Moor, Wlloyd- S- L Slocl,,mi -Jnie.111 ~.,,v Tilllong W~l,1111M Moon! Ellllbt!thD - 8"n F Slol!IHI 81andooO .,..,..., J&-E lcr1s.Ji lanv C Moai• T 11w19111Reid Marga101A SIOIW Jo...,t,w Jack,oo Victorfl LOILJ1 J«lkw M0 I II I \ I \ R \ \I I I I U ) I R 71 Disability Inactive Panel V of the DisciplinaryBoard . They ordered that Morgan's petition be conditioaally granted under the Huntsville auomey Mark Bruce Flake was 1rnns followingco ndi1ions: As soon as feasible, Morgan ferred10 dL 72 J A N U A R Y 2 0 0 3 New Jc~ anomcy Donllld C. and that Ausbom would receive a pub Vnillnncourt was disbam:d from lhc lic reprimand without gcncr.tl publica practice of law in the Slate of Al:lbama tion nnd be placed on pmb:uioo for a effective September 20. 2002. The period of two years. Ausbom made supreme coun emcrcd ,is order based restitution to the complninant in a upon Ll1c decision or the Disciplinary t imcly manner. Board disbarring Vailluncoun as recip Ausbom was retained to recover rocal disciplioc pursunm 10 Rule 25(a), drun:igesfor injuries that the com A.R.0.P. This discipline was based plainant recei,'ed in a motor ~hicle upon the July 15. 2002 onfcr of the accidcni lhlll occurred on April 30. Are you watching someone Supreme Coun of New Jersey disbar 1996.Ausbom filed suit, but was 001 you care abou c sell-destructing ring Vuilfancounfrom the practice of nble lo obtain service on the dcfoo becaus e of alcohol or drugs' low In lbe Staie of New Jersey based d,m1. On November I, 1997,Ausbom upon his plea of guilty to mail fraud in wns suspended from the practice of Are they telling you they violation of I 8 U.S.C.A. Sections 1341 law in the State of Alnbumn for u peri have it under control? nnd 2. rRule 25(a): Pct No 02-02] od of 91 days. Ausbom infonned the • On Oc:tober8. 2002, the Al11bama complainant about the suspension_but They don't. Supreme Court entered an °'*r dis encouroged her 00110 terminate him Are they telling you they b.11'ringBioningh11n1 nttomcy Allen nndto allow him to remain u her Eugene Perdue, J r. from Ll1c pmccice nnomcy, promising 10comp lete her can handle it' of luw In the Sllltc or A labamn clTcc cnse when his suspension was over. tivc September 5, 2002, pursuant to Ausbom represcntod to the com They can't. plnlnnnt lhal be cxpcc1cd lo be rein Ruic 23. A.R.0 .P. Perdue cmcred a Maybe they're telling you con.sent10 disb3nncn1 dated Sepcember Sllltcd in February 1998and that no ifs none of your business. 5. 2002. lldion "'OUldbe necessary on her case Perdue was convicled of bank fruud pnor to Ihm lime. Ausbom wasnot It is. on September 19, 2001 in 1he United n:1nsta1edin February 1998. During Sratcs Districr Coun for the Nonhem his suspension. the cou11 indicated that Peop le ent renched in alcohol District of Alabama. He was sc111cnccd 1hccase would be dismissed for failure or drug dependencies can'c see to prosecute due 10 l:1ckor service. 10 serve 41 months in the custody of what it is doing to their lives. the Bureau of Prisons and to make During this time, Ausbom did no1 resliiution in the amount of coinmunicair with 1hl /Ill 1/lHtlll /tlll/H 73 Friel pied guilty 10violming rules l.3, The Disciplinary Commission fur were unable to obtain a copy or their l.4(a) and 8. l{b). A.R.P.C.Friel admit ther ordered that Wilkins be restricted tile. They hired another auorncy to ted that be railed 10 me 3 brief in the from maintaining a ttust account. handle the maner for them. Abboll did Alabama Coun of Criminal Appeals on [Rule 20(a): Pet. No. 02-11J 001 respood during the bar's investiga behalr of a client and 1h01he did not tion of the complaint. Abbott pied Hoover auomey Gary Wayne Abbot! respond to requests for informmion guiliy to violating rules 1.3. I .4(a). was suspended from the practice of during the investigationof the com 1.16 {d), 8. l(b), 8.4(a). and (g), law in the State of Alabama for a peri plaint. In ASS No. 01-31l (A), Friel A.R.P.C. od or 22 months by order of Llle pied guilty to violating rules 1.3. l.4(a) In ASB No. OI- 175(A). the com Alabama Supreme Coun. The supreme and 8.1(b ). A.R.P.C. and agreed to plainant retained Abbou to defend her court entered its order based upon the make res6tuLion to the complainantin on criminal charges and paid him findings and o.rder of the Disciplinary the amount of $600. Friel admined 1ba1 $1,250 or n $1,500 retainer. Abbott did Commission of tl1eAlabama State Bar. he was hired to ftle a Chapter 7 bank some work in the case and made The Commission further ordered that ruptcy and was paid a $600 fee, but did appearances. However, be was sus the suspension should be rell'Oactiveto not file the bankruptcy. lJi addition. pended prior to conclusion of the rep September 2. 2000, the effect.ive date Friel did not respond to requeslSfor resentation. The complainant requested of a 91-day suspension in ASB No. informationfrom the investigator for an account nnd n refund. but Abbott 00- 11S(A ). Abbott made restitution in the local grievancecomminee of the never responded. Abbott did not each case. BirminghamBar Association.In ASB respond during the bar's invcstigution In ASB No. 0 I -55(A), the com No. 0 1-l 58(A). Friel pied guilty 10 vio of the complaint. Abbou pied guilty to plainant hired Abbott to defend her lating rules 1.3 and S.l(b), A.R.P.C. violating rules l.3, 1.16(d). 8.l(b ). brotherin a scxunl nbusccase and paid Friel admined that he failed to tile a 8.4(a) and (g). A.R.P.C. S l 0.000 of a S L5.000fee . When brief in the Alabama Coun of Criminal On September 27, 2002. the Abbott was suspended, Abbott wrote Appeals on behalf of a client and did Supreme Coun of Alabama ordered I.he compl:tinant and told her he was not respond to requests for information Abbott reinstated to the practice of law suspended. but stated that be would be during the investigationof the com in the State of Alabama. effective reinstated in 91 days. Abbott referred plaint. In CSP No, 01-773(A}, Friel August 21. 2002. The supreme coun·s Lllecase 10 another auomey who told pied guilty 10 violating rules 1.3 and order was based upon a September 6, Lllec omplainant he would not make n I .4(a), A.R.P.C. Friel admitted that be 2002 order of the Disciplinary Board court appearance without being paid was retained in July 2000 to represent • of the AJabam;iStn te Ba.rrcins1'1tfo g the remaining $5,000 she owed client in a divorceaction and waspaid Abbott pursuant to Uteprovis ions of Abbou. Abbott did not respond during S500. Friel movoo without notifying Rule 28. A.R.D.P. [ASB nos. 0 l- the bar's investigation of the com the client and did little or no work on 55(A). Ol-82(A). Ol-174(A). Ol- plaint. Abbott pied guilty to violating behalf of U1c client. In addition to dis 175(A) and Pet. No. 0 1-01] rules l.16(d), 8.l (b). 8.4(a) and (g). solving Lllesummary suspension, Llle A.R.P.C. On August 26, 2002, the Supreme DisciplinaryCommission ordered that In AS B No. 0 l -82(A), U1ecom Coun of Alabama adopted the July 9, Friel be suspended from tl1epractice of plainant hired Abbott to represent her 2002 order entered by ~1eDisciplinary law for a period of 91 days. However, in a divorce. She paid him $500, plus Board, Panel IV.suspending Anniston the DisciplinaryComm ission suspend the filing fee. Abbott did no work in attorneyJam es Almwick Mitchell, Jr. ed tl1e91-day suspension and placed tl1ematter and the complainantcould from the practiceof law for 90 days, Friel on probation for a period of two not locate him. Abbott did not respond with 30 days lo be served immediately, years. I Rule 20(a): Pct. No. 02-05 and during the bar's investigation of the and 60 days 10 be held in abeyance, ASB nos. 02-38(A). Ol-158(A), 01- complaint. Abbotl pied guilty to violat pending completionor a two-year pro 31 l(A) and CSP No. Ol-773(A)] ing rules 1.3, l.4(a), l.l 6(d). 8.1(b ). bation. Said suspensionbecame effec Point Clear attorney Robert Bernard 8.4(a). and (g). A.R.P.C. tive June 17.2002. Mitchell was Wilkins, Jr . was interimly suspended In ASB No. 01- 174(A). the com reruined by Brenda Gholston 10 repre by order of the Disciplinary plainant and her husband hired Abbotl sent her in a divorce proceeding in Commission of the Alabama State Bar and paid him a $ 1,000 retainer to rep September 1998.Ghol ston paid $325 in effective October 9. 2002. Wilkins was resent them concemiJ1gproblems they cash to Mitchell's secretary,Mrs . suspended pursuant tO Rule 20(a). ,vere havingwith theirnew van and Rudolph.Rudolph gnve Gholston a Alabama Rule.•of Disciplinary Lllei.rinability to reach a sett.Jement receipt for payment of U1eattorney 's Procedure. with tl1edeale r. Abbott did not pursue fee. Thereafter. Gholston heard nothing The Office or General Counsel filed their claims against the dealer or the from Mitchell. so she contacted bun a petition pursuant to Rule 20(a), manufacturer and, at the Limethey during the first pan of 1999. MitcheU based upon Wilkins· being indicted in filed the bar complaint, had physical assured Gholston U,ate verything was the United States Disttict Court for the possession of their van m his home. fine and he had her paperwork. Southern District of Alabama for vio After his suspension. Lllecomp lainantS Thereafter, Gholston receiveda tele lating 18 U.S.C. Section 1708 [mail learned that Abbott's files bad been phone call from Mitchell's new secre fraud]. turned over to anoU,eranomey. but tary. as.king her to come in becauseher 74 l A N U A R Y 2 0 0 3 file h3d been deleted. A fow months investigation of Ille matter, Angwin claims. whatever their meriL were for btei-, Gholston checked01 !he coun obtained a S?..0,000sculcment offer. feited without the client's informed house and was infonncd IMl no divorce His client declined the ofrcr nnd consent. [ASB No. 01·248(A)J p:i~ hnd been filed. Toward the end advised that be would not take lel I II I I I t IJ l II t I t II l I H 75 requested LO respond to it in writing. ln Ll1at Cauthen make restitution 10 his Vardaman. Vardamanborrowed sufti spite of numerous coniacis by the bar, fom1e.r law finn in the amount of dcnt n1011eyto satisry the 6.rs1mongage Cunningham failed to respond. $7,512.17. and prevent foreclosure.Vardamun an d Because Cunningham was already on Cauthen wns employed with u law the client agreed diat because be owed probation for failing to respond in finn. As an employee of that finn. he fees for prior legal services and for other anotherunrela ted complaint..an interin1 received case referr• ls [rom other attor loans, which he did no1repay , Vardrunan suspension was ordered by Ilic neys within the firm,as weUas auor would l\.>ceivcadd itional proceeds from Disciplinary Commission. After neys from ouLSidethe firm. The firm's the new loan. Vardamanagreed 10 make CullJlinghamcomplied v.1ilh certain policy and practice was thai any and all paymenL~o n the loan and 10pay the rcquircment'i, the in1erin1 suspension fees re.suitingfrom work perfom,ed by insuranceand taxes until the clielll was dissolved. Cunningham was con an auomcy employed by 1he firm was decided what he wanted to do with the tinued on his probation of 1wo years. the propeny of the fll1n. Af1er Camben house. The agreemenl was not reduced Upon his plea, Cunningham was found began working for the fim1.t he firm to ,vrilingan d the trans..'lctionW'd.S not in guilty of violating Rule 8. l(b) [bar employed another auo,ney. That auor compliancewith other provisions of admission and disciplinary matters] of ney bmughl with him active files from Rule l .8(a).A.R.P.C. the Rules of Professional ConducL his fonner firm. The auomey made Documents received from the clos [ASB No. 02-83(A)J several auempis to seule one or the ing anomey establish diat the "sales cases that he brought with bim. He was contract" provided n purchase price of On September 6. 2002 Sylacauga not successful in nego1ia1ing n seule· $65.000. with receip1o f $20,000 attorney Michael Anthony Givens received a public reprimand withou1 ment witl1the adjuster assigned to tl1e earnest lll0l1eyacknow ledged and $45,000 due al closing. The HUD- I general publication. Mr. McGhee hired case. Thereafter. Llieauomey referred 1hec.ase to Cnuthen because Cauthen stmement established that the first Givens during December 2000 to file a had bL>ensucces sful in negotiating with mortgage of $12, 169.38 was satisfied divorce for bim. He paid Givens $615 the adjuster on a previous case. During and tha1the client should have for an uncontested divorce. 10 include CauLl1en·s represeniation he used per received $32,588.82. The closing attor fees for a process server in New York sonnel, equipment.,s upplies and other ney paid this amount to the client with City. where the estranged wife lived. resources of the firm. Cauthen was able two checks. A check for $21,685.82 Givens did no1 file the divorce until to succcs.~fullyneg,)tiate u sculcment. was made payable solely 10 the client Marcil 13, 2001. During March and Prior to disbursement of the setllemem, and a check for S I0,903 was made April 200 I. Givens failed to adequate the anomey who brought the case imo payable to 1he closing auomey and 1he ly communicate with McGhee aboul Ll1e firm told Caull1ent bal he did not clienL The SI 0.903 check wa.sthe his effons to bave the wife served. On intend to repon the auomcy's fee amount due from Vardaman to close April 2, 2001. McGhee paid Givens eamed in the case 10 the Einn.He also the 1mnsac1ion.Obvious ly, the client another $ 160 for a process server in LOIIICaut hen that if he did no1want 10 paid this amounL In addition, New York. 1\vo weeks later, he called Vardaman never actually paid the the process server's office and was told report tl1cfee, be would not say aJJy• that they had not received aoy divorce thing about iL Cauthen expressed con S20.000 eamest money acknowledged cem that the settlement would appear in tbe "sales coauact." papers from Giveos. nor bad they had in the firm's trus1account and records. After the closing, Vardamanp repared any communicationw ith hin1.O n June But the auomey assured O tuthen that a deed from himself to 1he client 10 be l , 200 I, McGhee filed a complaint he would use bis ITUStaccoun1 from bis used in case ofVard:unan's death. Al with the Alabama State Bar. Givens was sent a copy of the complain1on former firm to disburse the settlement. some poinL 1he client decided lo sell Afler receiving assurance that the auor the house. A friend of the client's was August 2, 200 I and asked 10 respond to it within 14 days. After several addi ney's fee would be concealed from the interested in the hotL~eand signed n firm, Cauthen acccp1ed bis share of the lease witl1an option 10 buy. During the tional letters and calls from the bar, attorney's fee and deposited it into bis lime tha1the [riend was making Givens finally submitted a response on personal account without reponing it to arrangements to purchase the house. October I 0, 200 I. The Disciplinary Commission found Giveos's conduct the firm. [ASB No. 01-223(A)) the client died. The client's sole heir wa~ a minor cbild. die cLienrs wife in violati.on of rules 1.3[diligence], Anniston attorney Bugh Merrill having died a few years earlier. The 1.4(a) !communication]. und 8. 1 (b) Vardaman received a pubHc repri executor of the client's estme. who was [bar admission and disciplinary mat mand without general publication for ters] of the Alabama Rules or also 1he guardian for 1hc minor child. violating rules I.S(a) and I.I 5(c). was forced 10 hire a lawye,· 10 help him Professional Conduct. [ASB No. 00- A.R.P.C. recover tl1easseis of die estate from 233(A)J A clien~ wbo was the brother of Vardaman.fo conversations with tha1 Fnl)lk M. Cauthen , Jr. rcceivc-0a Vardaman·s secretary.borrowed lawyer, Vardamanexp lained that if he public reprimand without general pub S15,000 against his house. He wa.~ was not able to sell the house. tlieo he lication for violations of rules 8.4(a), unable lOmake the payments and con would deed the house LOthe clieat's (c) aod (g), Alabama Rules of tacted Vardamanfor help. ln e.,change estate and if he sold the house. then he Professional Conduct The for Vardaman 's help, the client u-Jns would remit the proceeds 10 the attor Disciplinary Commission also ordered ferred the deed to the house to ney 10hold in ITUStuntil such time as 76 J A N U A RY 2 0 0 3 thc execu1or1111d guaniian released receive a pubhe reprimnnd w11hout repair of Floyd's ,·chicle under ques· Vardamanond his secretary from any general publicm,on. Charlene Floyd of 1ionnblecircums 1ances. Later, Floyd lit1bili1y arising 0111or 1he earlier 1rans Be. TheAlabama State Bar Lawyer Referral Service can provide you with an excellentmeans of earninga Jiving,so it Is hardt o believethat onlythree percen t of Alabamaattorneys participate ln thisservice I LRS wantsyou to cons.iderJoining. TheLawyer Referral Se!vice Is nota probono legal service . Attorneysagree to chargeno morethan S25 for an Initialronsultatlon, not to exceed30 minutes.If, after the consultation, theattorney deddes to acceptthe case, he or shemay then dlarge his or hernorm al fees. In additionto earninga feefor yourservice , thegreater reward ls thatyou will be helpingyour Jellow citizens.M ostreferral dlents have never contacted a lawyerbefore. Your counseling may be all that Is needed,or you mayoffer rurt11 er servl~es. No matterwhat theouteome or the initialconsultation, the nexttime they or !heirfriends or familyneed an attorney, theywill cometo you. 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O< visit http :J/products .findlaw.com THOMSON W EST FindLaw. www.findfaw.com e devioe This appears to !Ofl!shadowtile pro-jllaintiff expan lowing"ho rseplay" at WQllc:Ille coon held ma, since Lee /BSJH/ed that she d/rlnl sioniSItmtment of 25-5-11that wou ld followBalley , 1hinldie co-employee dtlfendanr intended ro hmm her, sho ooold no 1srow anything IOOlethen negligence and a perceptionof a riskof injuty,neither o1 !Mlich wdl sus· 7 Wh,le25,5-lllbl states ·,r personalinillrf" dea1h10 anv emplove,, resu lts from talne (c.11cla,m). Sm,1/J • Le wi~ 684So 2d 1317(Ala . Clv. Aw- 1996)(af0rming wllllul ccnflJ<:t,as definedr,n ML of anyotf,cer di rect o,, agen,or empl..,.. ••. ,• s,,immaryj!Jdginent fordefendani Incase .nvolv,ng a fataJ electrocution of an metot1n clearly e,panded the scope o f 25-5-11in the Habdancase 171 such a loose employeeof a 11eecompany wher e supervisorr;o.employoe dtllendanr t.xl pm,iously Interpretationof (<11'31 wamedthe-..i of the daogerof the powerlines befDle 1he occidenU; Wi1finms 8. 'Nhilethe ques tionof whetheran OSHA ci1at1on sa1isfie$ the requirements ot tcX4t v Pnce.564 So 2d 408(Ala. 19901(effirming S