44726-1 AlaBar.qxd:Layout 1 1/21/10 3:45 PM Page 1
JANUARY 2010 • VOL. 71, NO. 1 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:45 PM Page 2
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THE IL!INIVIERSIT Y OF ALABAMA www.CLEalabama.com -SCHOOL OF LAW 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:46 PM Page 5 CoverOn the JANUARY 2010 • VOL. 71, NO. 1 From Power to Service: The Story of Lawyers in Alabama This commemorative book is a detailed chronicle of the In This Issue profession’s first 200 years in Alabama. Author Pat Boyd Rumore draws on a rich array of sources that bring to life both the internal history of the profession and its role in the legal and political life of the state. Here are stories of the legions of lawyers and judges who successfully 24 faced the challenges of their profession and created a ASB Fall 2009 Admittees powerful community of shared interests and commit- ments. The book will be available for purchase in 36 ASB Volunteer Lawyers Program 2009 Honor Roll February for $40. Proceeds go to the Alabama Law Foundation and the Bench and Bar Historical Society. 45 The VLP and the Thief By Pamela H. Bucy Departments 46 Book Review: Alabama Appellate Practice Guide 9 President’s Page “Thank You, Legal Services!” (1st edition, 2009) By Ed Haden 13 Reviewed by Judge R. Bernard Harwood Executive Director’s Report 48 What Kind of Bang Am I Getting for The Image of the Legal Profession My Buck with the LRS? and the Weather By Renee Avery 15 Important Notices Notice of Election and Electronic 50 Task Force to Examine Interest in Creating New Federal Balloting Alabama Lawyers’ Hall of Fame Court Practice Section Nomination Form 52 Judicial Award of Merit ASB Leadership Forum Amendment of Rules 16, 26, 33(c), By Edward M. Patterson 34, 45, and Form 51A, Alabama Rules of Civil Procedure, and 56 Creation of Commercial Litigation Docket in the Adoption of Rule 37(g), Alabama Rules of Civil Procedure Birmingham Division, Tenth Judicial Circuit 17 By Presiding Judge J. Scott Vowell Memorials 21 58 Piercing the Corporate Veil: Bar Briefs When is Too Much Fiction a Bad Thing? 23 Young Lawyers’ Section By Will Hill Tankersley and Kelly Brennan New Admittees, CLE and Pro Bono – Have We Left Out Anything? 64 Oops, It Happened Again: Inadvertent Disclosure under 79 Opinions of the New Federal Rule of Evidence 502 General Counsel By Wayne Morse, Jr. Third-Party Auditing of Lawyers’ Billings – Confidentiality Problems 68 Reliance, the Bachelor: Will Experience Answer the Open and Interference with Representation Questions of Reasonable Reliance? 85 Legislative Wrap-Up By Wilson F. Green The 2010 Legislature Begins 89 75 Twombly and Iqbal: The Effect of the “Plausibility” Disciplinary Notices Pleading Standard on Alabama Litigators 93 About Members, By J. Thomas Richie and Anne Manasco Dionne Among Firms The Alabama Lawyer 5 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:46 PM Page 6 Robert A. Huffaker, Montgomery...... Chair and Editor ALABAMA STATE BAR [email protected] 415 Dexter Avenue Linda G. Flippo, Birmingham ...... Vice Chair and Associate Editor [email protected] Montgomery, AL 36104 Brad Carr, Montgomery...... Staff Liaison and Director of Communications (334) 269-1515 • (800) 354-6154 [email protected] Margaret L. Murphy, Montgomery ...... Staff Liaison and FAX (334) 261-6310 Publications Director Web site: www.alabar.org [email protected] Marcia N. Daniel...... Communications & Publications Assistant ALABAMA STATE BAR STAFF [email protected] Executive Director ...... Keith B. Norman Board of Editors Executive Assistant ...... Diane Locke Gregory C. Buffalow, Mobile • Russell C. Buffkin, Mobile • Henry L. Cassady, Jr., Network Administrator...... Wayne Hughes Fairhope • Greg C. Cook, Birmingham • Katharine A.W. Coxwell, Monroeville • J. Mark Debro, Huntsville • Patrick C. Finnegan, Mobile • N. Chris Glenos, Computer Programmers...... Dolan L. Trout Birmingham • C. Paige Goldman, Birmingham • Wilson F. Green, Tuscaloosa • Larry Pratt Trip Haston, III, Birmingham • Fred G. Helmsing, Jr., Mobile • Anne S. Hornsby, Scanning Operator ...... Kristi Neal Tuscaloosa • Emily C. Marks, Montgomery • Reta A. McKannan, Huntsville • Timothy B. McCool, Carrollton • Derek F. Meek, Birmingham • William J. Moore, Web Administrator...... Willie Murphy Jr., Enterprise • Richard D. Morrison, Montgomery • George R. Parker, Assistant Executive Director ...... Edward M. Patterson Montgomery • Gabrielle E. Reeves, Mobile • Christopher N. Smith, Montgomery Administrative Assistants ...... Rita Gray • John S. Steiner, Birmingham • Chad E. Stewart, Enterprise • James R. Marie Updike Turnipseed, Mobile • Aldos L. Vance, Birmingham • Mark T. Waggoner, Birmingham • John R. Wallis Birmingham • Tari D. Williams, Tuscaloosa Director of Regulatory Programs...... Angela Parks CLE Administrative Assistant...... Carol Thornton Officers CLE Regulatory Programs/PHV Assistant ..Cathy Sue McCurry Thomas J. Methvin, Montgomery...... President Alyce M. Spruell, Tuscaloosa...... President-elect Director of Communications ...... Brad Carr J. Mark White, Birmingham...... Immediate Past President Publications Director...... Margaret L. Murphy Phillip W. McCallum, Birmingham ...... Vice President COURSE Keith B. Norman, Montgomery ...... Secretary Communications and Publications Robert N. Bailey, II, Huntsville ...... Young Lawyers’ Section President Assistant...... Marcia N. Daniel SEARCH Membership Services Director...... Mary Corbitt Board of Commissioners Membership Administrative Assistant ...... Emily Farrior 1st Circuit, Ronnie E. Keahey, Grove Hill • 2nd Circuit, Cleveland Poole, Greenville • 3rd Circuit, Christina D. Crow, Union Springs • 4th Circuit, J. Garrison Thompson, Director of Admissions ...... Dorothy D. Johnson Selma • 5th Circuit, Randall S. Haynes, Alexander City • 6th Circuit, Place No. 1, R. The Alabama Mandatory CLE Commission Admissions Administrative Assistants.....Sonia Douglas Cooper Shattuck, Tuscaloosa • Place No. 2, Robert Hays Webb, Tuscaloosa • 7th Crystal Jones Circuit, John M. Gruenewald, Anniston • 8th Circuit, Phil D. Mitchell, Decatur • 9th Circuit, W. N. Watson, Fort Payne • 10th Circuit, Place No. 1, Leslie R. Barineau, Bookkeeper...... Gale Skinner Birmingham • Place No. 2, S. Greg Burge, Birmingham • Place No. 3, George M. continually evaluates and approves in-state, ASB Foundation Assistant...... Ann Rittenour Neal, Jr., Birmingham • Place No. 4, Phillip W. McCallum, Birmingham • Place No. Graphic Arts Director ...... Maggie Stuller 5, Augusta S. Dowd, Birmingham • Place No. 6, Maibeth J. Porter, Birmingham • Graphic Arts Assistant...... Roderick Palmer Place No. 7, Joseph A. Fawal, Birmingham • Place No. 8, Robert E. Moorer, as well as nationwide, programs which are Birmingham • Place No. 9, James R. Pratt, III, Birmingham • Bessemer Cutoff, Receptionist ...... Stephanie Oglesby William A. Short, Jr., Bessemer • 11th Circuit, Albert J. Trousdale II, Florence • maintained in a computer database. All are Director of Service Programs...... Laura A. Calloway 12th Circuit, Richard W. Whittaker, Enterprise • 13th Circuit, Place No. 1, Henry A. SP Administrative Assistant...... Kristi Skipper Callaway, III, Mobile • Place No. 2, Walter H. Honeycutt, Mobile • Place No. 3, Billy C. Bedsole, Mobile • Place No. 4, Juan Ortega, Mobile • Place No. 5, Mary Volunteer Lawyers Program Director...... Linda Lund Margaret Bailey, Mobile • 14th Circuit, James R. Beaird, Jasper • 15th Circuit, identified by sponsor, location, date and VLP Assistant ...... Katherine L. Church Place No. 1, Les Hayes III, Montgomery • Place No. 2, Les Pittman, Montgomery • Intake Specialist ...... Deborah Dickey Place No. 3, Donald R. Jones, Jr., Montgomery • Place No. 4, J. Cole Portis, Lawyer Referral Secretary ...... Renee Avery Montgomery • Place No. 5, Sim Penton, Montgomery • Place No. 6, Lee H. specialty area. For a listing of current CLE Copeland, Montgomery • 16th Circuit, F. Michael Haney, Gadsden • 17th Circuit, K. Alabama Lawyer Assistance Program Scott Stapp, Demopolis • 18th Circuit, Place No. 1, Ramona Morrison, Columbiana opportunities, visit the ASB Web site, Director ...... Jeanne Marie Leslie (834-7576) • Place No. 2, Julia C. Kimbrough, Birmingham • 19th Circuit, Brian D. Mann, ALAP Administrative Assistant ...... Sandra Clements Wetumpka • 20th Circuit, Hamp Baxley, Dothan • 21st Circuit, John L. Jernigan, III, Brewton • 22nd Circuit, John M. Peek, Andalusia • 23rd Circuit, Place No. 1, ALAP Case Manager...... Shannon Knight Harold Stephens, Huntsville • Place No. 2, L. Thomas Ryan, Jr., Huntsville • Place www.alabar.org/cle. Alabama Law Foundation, Inc. Director...... Tracy Daniel No. 3, Richard J.R. Raleigh, Jr., Huntsville • 24th Circuit, J. Dale Lawrence, Jr., ALF Administrative Assistant ...... Sharon McGuire Fayette • 25th Circuit, R. Wyatt Howell, Hamilton • 26th Circuit, Kenneth E. White, Alabama Center for Dispute Resolution III, Phenix City • 27th Circuit, Jerry Wayne Baker, Jr., Albertville • 28th Circuit, Place No. 1, Allan R. Chason, Bay Minette • Place No. 2, Marion E. Wynne, Jr., Director ...... Judith M. Keegan (269-0409) Fairhope • 29th Circuit, Robert L. Rumsey, III, Sylacauga • 30th Circuit, Elizabeth S. ADR Assistant ...... Patsy Shropshire Parsons, Pell City • 31st Circuit, John M. Kennemer, Tuscumbia • 32nd Circuit, Jason P. Knight, Cullman • 33rd Circuit, Henry F. Lee, III, Geneva • 34th Circuit, ALABAMA STATE BAR CENTER FOR Eddie Beason, Russellville • 35th Circuit, J. Milton Coxwell, Jr., Monroeville • 36th PROFESSIONAL RESPONSIBILITY STAFF Circuit, Christopher E. Malcom, Moulton • 37th Circuit, Robert T. Meadows, III, General Counsel ...... J. Anthony McLain Opelika • 38th Circuit, Don Word, Scottsboro • 39th Circuit, Jere C. Trent, Athens • 40th Circuit, David F. Law, Rockford • 41st Circuit, Alexander M. Smith, Oneonta Secretary to General Counsel...... Julie Lee Assistant General Counsel ...... Robert E. Lusk, Jr. At-Large Board Members Assistant General Counsel ...... Samuel S. Partridge 1. Walter E. McGowan, Tuskegee • 2. Claude E. Hundley III, Huntsville • 3. Deborah Assistant General Counsel ...... Jeremy W. McIntire Byrd Walker, Birmingham • 4. Merceria Ludgood, Mobile • 5. Alicia F. Bennett, Chelsea • 6. LaBarron N. Boone, Montgomery • 7. David K. Howard, Florence • Complaints Intake Coordinator...... Kim Ellis 8. Kesa Johnston, Roanoke • 9. Kelly T. Lee, Elmore Disciplinary Clerk ...... Bonnie Mainor The Alabama Lawyer (USPS 743-090) is published six times a year by the Paralegals/Investigators...... Cheryl L. Rankin Alabama State Bar, 415 Dexter Avenue, Montgomery, Alabama 36104. Carol M. Wright Periodicals postage paid at Montgomery, Alabama, and additional mailing Client Security Fund Coordinator ...... Laurie Blazer offices. POSTMASTER: Send address changes to The Alabama Lawyer, P.O.Box 4156, Montgomery, AL 36103-4156. Receptionist ...... Sherry Langley The Alabama Lawyer is the official publication of the Alabama State Bar. Views and conclu- sions expressed in articles herein are those of the authors, not necessarily those of the board of editors, officers or board of commissioners of the Alabama State Bar. Subscriptions: Alabama State Bar members receive The Alabama Lawyer as part of their annual dues pay- ment; $15 of this goes toward subscriptions for The Alabama Lawyer. Advertising rates will be furnished upon request. Advertising copy is carefully reviewed and must receive approval www.alabar.org/cle from the Office of General Counsel, but publication herein does not necessarily imply endorse- The Alabama Lawyer The Alabama Lawyer ment of any product or service offered. The Alabama Lawyer reserves the right to reject any GRAPHIC DESIGN PRINTING advertisement. Copyright 2010. The Alabama State Bar. All rights reserved. 6January 2010 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:46 PM Page 7 From Power to Service: eS oryof Lawyers· Alabama Wtfitt nby ttorn • uthorht8~dRumo .Thlsh irdco rboo~flll wlthpictu s. fflM!y'ofwhichwtr.notp \iiOuslypublish d,i_s.thi d lglft. 111c'al II " ,~,.,.. II " JnTl,,11 111:,t,i,ht1; ,,( I, 11,i .,., .. Ill M,u.11.>i~l'·T~1111,-:,, ~ ..... ill, ti 'l" ,111....-11rl, ~kk11rl1w 11njrff,,....11H.flt,c-fi, r ti:11 itl:d > In tk,.., r"l'C" yuu .,.iJIII hn, th: ,.. , ,,i; ,...fw, p1111( n:JAl J. n•'II'•lcpl f · lf1 llt<: hhf , · r{ d,. P" 11 SI "1i, air P1111-f:irrn, ofd ,;. i..N:J.i, ,:,,~1111 Zero Tra1ve Time. Zero Hassles. UnlimitedPossibilities. \"('hrtr.wd when you c.1, Sil\'C:time and 111 Kristi kipper dt (33-t) SJ 7 -22-±2or [email protected]. it ·t houc free: for fir t time: u c:t • President’s Page 99 Methvin Lawyer Lawyer Thomas J. The Alabama The Alabama matters in judicial legal and the Alabama Civil (877-393-2333) is promoted avail- (LSA) is the most important resource This program was started in 2008 with grants The Alabama State Bar has partnered with LSA in our “Mortgage population, or of Alabama’s Estimates show that about 25 percent Legal Services Alabama and administrative forums, and by providing free legal counsel, commu- nity education and mediation services. Foreclosure Program.” from the Access to Justice Commission Justice Foundation. The program provides a toll-free hotline for people facing home foreclosure and provides them a free lawyer who works at LSA. The Mortgage Foreclosure Hotline throughout the state with public service announcements on television that are sponsored by the Alabama State Bar. current economic climate, it In the about 1 million people, live in poverty. indicates low-income Research is likely that these numbers will grow. than 700,000 legal problems per Alabama households experience more consumer and family law issues, as Common civil problems include year. public benefits and elder law. well as issues involving housing, health, Legal Services!” “Thank You, statewide nonprofit organization able to address these needs. LSA is a dedicated to providing access to justice and quality civil legal aid. It oper- ates 10 offices throughout the state, in Anniston, Birmingham, Dothan, Opelika, Selma, and Florence, Huntsville, Mobile, Montgomery, counties in Alabama. LSA helps It serves legal needs in all 67 Tuscaloosa. people by providing representation on critical donated their time and law students recently paralegals attorneys, Montgomery area Advice Clinic, as Legal Association’s Bar and talents during the Montgomery County Week. Bono Pro part of this year’s 9 Page PM 3:47 1/21/10 1 AlaBar.qxd:Layout 44726-1 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:47 PM Page 10 President’s Page Continued from page 9 So far, the hotline has helped more than 3,600 callers. We opened over 3,000 mortgage cases and have com- pleted over 2,300 of those cases. In addition to helping clients, the success of this program creates positive publicity for our bar, which provides these much-need- ed services. The partnership with LSA worked so well that we decided to adopt this same model to help with domestic violence cases. We received another grant from the Access to Justice Commission to hire a lawyer to be Royal Dumas, Kimberly Ray-Cobb, Pat Sefton, Theressa Harris, housed at Legal Services. When we receive domestic and Tom Gardner, Jr. are all smiles at the conclusion of a success- violence calls to the Alabama State Bar Volunteer ful joint endeavor, the monthly legal advice clinic. Dumas and Sefton are members of the Montgomery County Bar Association Lawyers Program (VLP), we attempt to place these (MCBA) and Ray-Cobb, Harris and Gardner are on staff at the clients with one of our volunteer lawyers. If we cannot Montgomery Community Action Agency (MCAA). find a volunteer lawyer to help, we send them to the Legal Services lawyer who was hired with this grant. on the generous contributions of its investors. We must This has worked well and allows us to help a lot of hurt- help to increase existing funding sources for Legal ing people. Services Alabama so it can hire more lawyers. We have Despite the essential role it plays in our communities, already received substantial pledges from Birmingham- LSA receives no state funding. Instead, it relies heavily area law firms for this. We plan to do a lot more. We How do I choose a Legal Studies Program? Quality Paralegal Education One way to ensure you receive a quality education is to choose a program with instruction specific to the skills required for the state. Secondly, it is important to choose a program with academic standards, such as those required by the American Bar Association. Faulkner Faulkner University’s Legal Studies Program is approved by the American Bar Association. The Faulkner University Legal Studies A CHRISTIAN UNIVERSITY program offers an ABA Approved curriculum exclusively at its Montgomery campus, with a strong reputation of academic excellence. How can I get started? Our Mission Legal Study courses are The Faulkner University Legal Studies Department seeks to provide offered at convenient times a program that supports its students during their academic and that cater to the needs of professional careers. Upon graduation, students will be well equipped to students of all ages. Our begin or continue an exciting career as a paralegal. faculty is comprised of experienced practitioners What are typical paralegal responsibilities? with outstanding academic Paralegals work in many areas of law including litigation, real estate, credentials. Contact Marci corporate, probate and estate planning, intellectual property, family Johns, J.D., Director of Legal law, labor law, and bankruptcy. Paralegals perform tasks such Studies today! as investigating facts, drafting legal documents, legal research, interviewing clients and witnesses, maintaining contact with clients, and Phone: 800.879.9816 the maintenance of legal files. Ext. 7140 [email protected] What can I not do as a paralegal? 5345 Atlanta Highway A paralegal/legal assistant cannot give legal advice, represent a client in Montgomery, AL 36109 court, establish a fee, or accept a case on behalf of an attorney. www.faulkner.edu 10 January 2010 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:47 PM Page 11 MCAA CEO Tom Gardner, ASB President Tom Methvin and Representing the Montgomery County Commission, Ham MCBA President Pat Sefton taking a break during the Wilson, Jr. (district one) presents ASB President Tom November legal advice clinic Methvin, MCBA President Pat Sefton and Royal Dumas, chair, MCBA Pro Bono Committee, with the proclamation are also increasing awareness of the need for access to announcing Pro Bono Week in Montgomery County. justice funding among the public, the members of the bar and the court system. We plan to do a lot more here also. Many people say that a society should be judged by how it treats the least among it. Lawyers are leaders of society and have a duty to try to help the less fortunate. Legal Services does this by providing a gateway to jus- tice for people in our community. We have the opportu- nity to raise money for Legal Services Alabama and to be a part of making Alabama a leader in ensuring true access to justice for all. Will you help? You can make a donation at www.legalservicesalabama.org. It’s going to take all of us, working together, to accomplish this. ▲▼▲ Judge John Carroll, dean of the Cumberland School of Law, pres- ents ASB President Tom Methvin with a memento recognizing his dedication to improving access to justice in the state. Alabama State Bar President Tom Methvin recently addressed 178 first-year law students at Cumberland School of Law and was honored by the law school for his contributions to improving access to justice in Alabama and, specifically, the need for increased pro bono work. Methvin has been a strong advocate for increasing state fund- ing for legal services and has pledged to work with the state legislature. He discussed the profes- sional responsibility that all lawyers have to pro- Montgomery Mayor Todd Strange hands ASB President vide pro bono service that is concomitant with the Tom Methvin the proclamation from the City, recognizing privilege of practicing law. Cumberland Dean John Pro Bono Week. Others who helped organize this volunteer Carroll presented Methvin with a framed certifi- effort are MCBA President Patrick Sefton and Pro Bono cate as part of its 2009 Pro Bono Salute. Committee Chair Royal Dumas. The Alabama Lawyer 11 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:47 PM Page 12 Whenwill it hityou? b • it: ·1 h,-rr'~ a h'I'} i;oud h.1m~ that )1111•lf ~.1rneonc )'m lll'I.I.'will JU-'• I lnni; &t>rni ,:.n .. hnt11 11:ard • ,, llC ( I ~ and l~luc Sl11dJ f bb2111J.offrr l ng-ccm1 L l tn UJJ.Jlu: pl:in [II prt1\1Jc r.. , chm ' hkr.: horn~ hold, .:.art•, Jduh Ja, " re, ;i:.,J~r.: lo lr,1rN PMCJrr,1/Jt•MI 11,,Al11i ..11rr.4 lit;Ut I ii mrJrmrJlo~ ttT111 l'rJrr bmtj,t (JI// I '66- 35.6(,6~, or r, 11 uJ 111uwu} prt/nrtadb . arm, st/,,1,:,,1 p ,o~ra,gr.1/11 umr 1.' ,up cndt 1113-'l!J(>tn...... ,.,-1 ,•+tftl+t••········· ··········· ········· ········•+••······· ..··• • •t _c-""'...,._.._____ ...._ Executive Director’s Report 13 13 Norman Lawyer Lawyer Keith B. The Alabama The Alabama with all lawyers do in the profession renders. Yet, legal rise as the monetary and emotional stakes in cases increase. the low esteem to several One can certainly attribute the legal profession’s the legal profession have to do What in the world does the image of public interest, we never seem to get much traction in raising the profes- image. sion’s factors, including the fact that lawyers work in an adversarial system, the rules and the exceedingly slow move- complexity of the judicial system’s ment of cases or matters through the system which can be very frustrat- ing to clients and parties alike. But, I believe the fault for our profession’s image problem lies principally with us, especially when lawyers lambaste courts for rendering a decision that is not in their favor or denigrate opposing counsel. These actions are unnecessary and do nothing more this conduct appears than stain the image of the entire profession. Sadly, to be on when it comes to complaints. Like little except with the weather? Very and the fact that no one can do a those who complain about the weather about the image of the pro- thing about it, I often hear lawyers complain about it. For many years, the fession and that no one is doing anything publicize the many positive things Alabama State Bar has done much to pro bono work, “Wills for that the legal profession does—including Care and many other worthy Heroes,” the Advance Directive for Health with the Alabama examples. Through our 12-year partnership nearly $10,000,000 in TV and Broadcasters’ Association, we have received radio time statewide to let Alabamians know of the tremendous public service which the Legal The Image of the the Weather Profession and 13 Page PM 3:48 1/21/10 1 AlaBar.qxd:Layout 44726-1 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:48 PM Page 14 Executive Director’s Report Continued from page 13 In April 1992, the Alabama Board of Bar To date, over 2,000 Alabama lawyers, or a little more Commissioners adopted the Alabama State Bar Code than 12 percent of the membership, has signed the of Professional Courtesy,1 and the Alabama State Bar pledge of professionalism to abide by the principles Lawyer’s Creed 2 to guide all lawyers in their comport- enumerated in the Code of Professional Courtesy. ment and treatment of fellow lawyers and the judici- Memphis attorney and former president of the ary. The Code has since been incorporated into the Tennessee Bar Association Bill Haltom writes a regu- Alabama Pledge of Professionalism.3 Although aspi- lar column for the Tennessee Bar Journal. In the rational, the Code and Creed are both bedrock tenets November 2009 issue, Bill talks about Tennessee of professionalism. Among the Code’s 19 precepts lawyer, statesman and former U.S. Senator Howard are the following four which are especially notewor- Baker being the personification of civility in both his thy with regard to a lawyer’s relationship with oppos- private life and distinguished public career. In particu- ing counsel and the court: lar, Bill relates a story that Howard Baker tells about the advice he received from a man who was a great • A lawyer should maintain a cordial and respect- lawyer and former U.S. Congressman—Howard ful relationship with opposing counsel. Baker, Sr., his father. Baker said of this father, “He • A lawyer should never intentionally embarrass taught me that you should always go through another lawyer and should avoid personal crit- life working on the assumption that the other icism of another lawyer. guy may be right” (emphasis added). Bill observes • When each adversarial proceeding ends, a that this statement “captures the essence of civility.” lawyer should shake hands with the fellow He writes: “It doesn’t mean that you don’t stand up lawyer who is the adversary; and the losing for what you believe. It doesn’t mean you can’t be a lawyer should refrain from engaging in any fierce advocate for your clients and causes. It just conduct with engenders disrespect for the means you go into a conflict with a notion that your court, the adversary or the parties. opponent may, in fact, be right, and you treat your opponent accordingly.” • A lawyer should recognize that adversaries This simple notion embodies the civility that both should communicate to avoid litigation and the Code and the Creed hope to instill in our dealings remember their obligation to be courteous to with other lawyers and the judiciary. If we can prac- each other: tice this simple advice in our treatment of our col- Similarly, the Creed stresses: leagues and the court, we still may not be able to do anything about the weather, but we can certainly • To the opposing parities and their counsel, I change the climate of professionalism and improve offer fairness, integrity and civility. I will seek the forecast for the legal profession’s image in reconciliation and, if we fail, I will strive to Alabama. ▲▼▲ make our dispute a dignified one. • To the courts, and other tribunals, and to Endnotes those who assist them, I offer respect, candor 1. www.alabar.org/member/professional_courtesy.cfm. and courtesy. I will strive to do honor to the 2. www.alabar.org/member/creed.cfm. search for justice. 3. www.alabar.org/service/Pledge.cfm. 14 January 2010 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:48 PM Page 15 Important Notice of Election and Electronic Balloting Alabama Lawyers’ Hall Notice of Election and of Fame Nomination Electronic Balloting Form Notice is given here pursuant to the Alabama State Bar Rules Governing Election and Selection of President-elect and Board of Bar Commissioners. Judicial Award of Merit Bar commissioners will be elected by those lawyers with their principal notices offices in the following circuits: Amendment of Rules 16, 1st Judicial Circuit 15th Judicial Circuit, Place 1 26, 33(c), 34, 45, and 3rd Judicial Circuit 15th Judicial Circuit, Place 3 Form 51A, Alabama 5th Judicial Circuit 15th Judicial Circuit, Place 4 Rules of Civil 6th Judicial Circuit, Place 1 23rd Judicial Circuit, Place 3 Procedure, and 7th Judicial Circuit 25th Judicial Circuit Adoption of Rule 37(g), 10th Judicial Circuit, Place 3 26th Judicial Circuit Alabama Rules of Civil 10th Judicial Circuit, Place 6 28th Judicial Circuit, Place 1 Procedure 13th Judicial Circuit, Place 3 32nd Judicial Circuit 13th Judicial Circuit, Place 4 37th Judicial Circuit 14th Judicial Circuit Additional commissioners will be elected in these circuits for each 300 members of the state bar with principal offices herein. The new commis- sioner petitions will be determined by a census on March 1, 2010 and vacancies certified by the secretary no later than March 15, 2010. All subsequent terms will be for three years. Nominations may be made by petition bearing the signatures of five members in good standing with principal offices in the circuit in which the election will be held or by the candidate’s written declaration of can- didacy. PDF or fax versions may be sent electronically to the secretary, [email protected]. Either paper or electronic nomination forms must be received by the secretary no later than 5:00 p.m. on the last Friday in April (April 23, 2010). As soon as practical after May 1, 2010, members will be notified by e-mail with a link to the Alabama State Bar Web site that includes an electronic ballot. Members who do not have Internet access should notify the secretary in writing before May 1 requesting a paper ballot. A single written request will be sufficient for all elections, including run-offs and con- tested president-elect races. Ballots must be voted and received by the Alabama State Bar by 5:00 p.m. on the last Friday in May (May 28, 2010). Election rules and petitions are available at www.alabar.org. At-Large Commissioners At-large commissioners will be elected for the following place numbers: 2, 5 and 8. Alabama Lawyers’ Hall of Fame Nomination Form The Alabama State Bar will receive nominations for the 2009 honorees of the Alabama Lawyers’ Hall of Fame through March 1, 2010. The two- page form should be completed and mailed to: Samuel A. Rumore Alabama Lawyers’ Hall of Fame P.O. Box 671 Montgomery, AL 36101 In 2000, Terry Brown of Montgomery wrote Sam Rumore, the Alabama State Bar president at that time, with a suggestion to convert the old supreme court building into a museum honoring the great lawyers of The Alabama Lawyer 15 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:48 PM Page 16 Important Notices Continued from page 15 Alabama. Although the concept of a lawyers’ hall of The Judicial Award of Merit was established in fame was studied, a later bar president, Fred Gray, 1987. The award is not necessarily an annual award. appointed a task force to implement a hall of fame. It must be presented to a judge who is not retired, The Alabama Lawyers’ Hall of Fame is the culmination whether state or federal court, trial or appellate, who of that idea and many meetings. Previous honorees is determined to have contributed significantly to the include: administration of justice in Alabama. The recipient is presented with a crystal gavel bearing the state bar 2008 seal and the year of presentation. John B. Scott (1906–1978) Nominations are considered by a three-member com- Vernon Z. Crawford (1919–1985) mittee appointed by the president of the state bar, Edward M. Friend, Jr. (1912–1995) which then makes a recommendation to the board of Elisha Wolsey Peck (1799–1888) bar commissioners with respect to a nominee or 2007: whether the award should be presented in any given John Archibald Campbell (1811–1889) year. Howell T. Heflin (1921–2005) Nominations should include a detailed biographical Thomas Goode Jones (1844–1914) profile of the nominee and a narrative outlining the Patrick W. Richardson (1925–2004) significant contribution(s) the nominee has made to the administration of justice. Nominations may be 2006: supported with letters of endorsement. William Rufus King (1776–1853) Thomas Minott Peters (1810–1888) John J. Sparkman (1899–1985) Robert S. Vance (1931–1989) 2005: Amendment of Rules Oscar W. Adams (1925–1997) William Douglas Arant (1897–1987) 16, 26, 33(c), 34, 45, Hugo L. Black (1886–1971) Harry Toulmin (1766–1823) and Form 51A, Alabama 2004: Albert John Farrah (1863–1944) Frank M. Johnson, Jr. (1918–1999) Rules of Civil Procedure, Annie Lola Price (1903–1972) Arthur Davis Shores (1904–1996) and Adoption of Rule To download a printable nomination form for 2010, go to http://www.alabar.org/members/hallfame/hallof 37(g), Alabama Rules of fame_ALH_2010.pdf Civil Procedure The Alabama Supreme Court has amended rules 16, 26, 33(c), 34, 45, and Form 51A, Alabama Rules of Judicial Award of Merit Civil Procedure, and adopted Rule 37(g), Alabama The Board of Bar Commissioners of the Alabama Rules of Civil Procedure. The amendment and adop- State Bar will receive nominations for the state bar’s tion of these rules are effective February 1, 2010. The Judicial Award of Merit through March 15, 2010. order amending rules 16, 26, 33(c), 34, 45, and Form Nominations should be mailed to: 51A and adopting Rule 37(g) appears in an advance sheet of Southern Reporter dated on or about Keith B. Norman December 31, 2009. These comprehensive revisions Secretary are to accommodate the discovery of electronically Board of Bar Commissioners stored information. The text of these rules can be P. O. Box 671 found at http://www.judicial.state.al.us/rules.cfm. Montgomery, AL 36101-0671 —Bilee Cauley, reporter of decisions, Alabama appellate courts ▲▼▲ 16 January 2010 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:48 PM Page 17 Memorials J. Gilmer Blackburn J. Gilmer Blackburn, a Decatur lawyer who dedicat- ed his life to his family, his church, his profession, his J. Gilmer Blackburn community, and to Auburn University, died May 31st in Auburn at the age of 81. Jackson Wilson Born in Opelika on October 21, 1927, he was the Guyton fourth child of Anderson and Vera Blackburn. Mr. Blackburn attended the Robert W. Lee Lee County School in Auburn, Alabama from the first through the 12th grades. He was drafted out of high school in 1946 and served in Alaska in John A. Lockett, Jr. the Army with the Alaska Communication System in 1947 on the Alcan Highway. Donald N. Spurrier He entered Alabama Polytechnic Institute (API), now known as Auburn University, in 1947. While at API he participated in student activities and was responsible for the campaign to build the first Auburn Student Union Building. He was a member of the Spades Honorary Society, Alpha Tau Omega fraternity and other organizations. He graduated from Auburn in 1950 with a bachelor of science. In 1951, during the Korean Emergency, he was called back into service as a 2nd Lieutenant serving with the 40th Tank Battalion, 4th Infantry Division, in Germany. Prior to leaving for Germany, he and Phyllis Birdsong were married in Albertville in 1951. Upon returning from the service in Germany, he and Phyllis entered the University of Alabama in Tuscaloosa. Mr. Blackburn returned to his studies at the law school and graduated in 1954. He attended New York University Law School in 1954 under a Kennison National Fellowship and obtained a master of laws (in taxation). In 1955, he established his law practice in Decatur. He was the first tax attorney in north Alabama. He also lectured extensively on tax matters for the University of Alabama Continuing Education Program and other seminars. He was president of the Morgan County Bar Association, chair of the ASB Tax Section, member of the Committee on Life Insurance Companies (Section of Taxation, American Bar Association) and a mem- ber of the Board of Directors of the Alabama Federal Tax Clinic. He was the founding attorney and senior counsel of Blackburn, Maloney & Schuppert LLC. In 1962, he was elected commissioner of the City of Decatur and served as its mayor for two terms, being unopposed in his second term. As mayor, he was responsible for a major development program called “Operation New Decatur.” The program was developed to bring Decatur into the New South. It included urban renewal programs to rebuild the The Alabama Lawyer 17 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:48 PM Page 18 Memorials Continued from page 17 downtown area for small family businesses, a new civic center (including a city hall, courthouse and federal Jackson Wilson Guyton building), major new plans for city schools, and improve- “The Person I Admire Most” ment of recreation activities with three new parks with The one I admire most is my dad. I admire him because recreation centers, including the nationally recognized he is just what I want to be. He is intelligent, does not mind Aquadome swimming pool. The major concept of the to do hard work, and he is hard working. My dad cares plan, however, was the regional Point Mallard Park, more about his family than himself and he wants to have a including the J. Gilmer Blackburn Aquatic Center incor- good time. He is also kind and does not [mind] helping porating the first wave-activated swimming pool in the people. He wants to help people. He is fair and just and United States, a golf course and other activities. The park pays attention to what unimportant and important people has been recognized by the State of Alabama Tourism say. And when I grow up I want to be just like my dad. Bureau as the number one seasonal park in the state. —Jeffrey P. Guyton Mr. Blackburn was also active with the Auburn Alumni Age 11 Association and served as the president of the Morgan I have only worked and known Mr. Guyton since County Auburn Alumni Club and as member of the January of 2007, but from everything his clients, friends Executive Committee and president of the National and family have said about him, he is the same kind Auburn Alumni Association. He was a charter member of and caring man today as he was 37 years ago when his the Auburn University Foundation, serving on its board son Jeff wrote the above essay for school. Mr. Guyton of directors and as vice president, president and chair- has had a long and wonderful life, personally and pro- man of the board, and member emeritus of its board. fessionally, and it has been truly an honor to have He was preceded in death by his parents, his wife of worked for him and known him. 48 years, Phyllis Birdsong Blackburn, and his brother, Mr. Guyton was born in 1926 to John L. and Lallie Joe Blackburn. He is survived by his wife, Dorry Ann Dunbar Guyton who lived in the western section of Blackburn; three children, Gay Maloney and husband Jefferson County. He grew up in Dolomite and later Mark, Allison Akins and husband Bobby and Lisa Ayerst moved to West End where he graduated from high and husband Rob; his grandchildren; and the children school. Mr. Guyton served two years during World War of his wife, Trey Johnston and wife Rebecca, Skip II. After the war, he graduated from the University of Johnston and wife Glenda and Dixie Keller and hus- Alabama in Tuscaloosa with an engineering degree. In band Gray; and Dorry Ann’s grandchildren. 1950 he went to work at US Steel as an industrial engi- Gilmer Blackburn was the embodiment of the ideal of neer, and then later worked in labor relations. the lawyer as public servant. He was a visionary for the He attended Birmingham School of Law and passed City of Decatur. Two days after his death, The Decatur the bar exam in 1957. In 1966, he began practicing with Daily editorialized: “That the former mayor was ‘the Frank B. Parsons and Victor C. Harwood in Fairfield. In Father of Point Mallard’ is more than a statement on a 1971, Victor Harwood died and J. Clewis Trucks joined plaque at the water park’s entrance. Point Mallard Park Frank Parsons and Jack Guyton to form Trucks, Parsons would not exist but for his efforts. The legacy, though, & Guyton. In 1984, Frank Parsons and Jack Guyton goes beyond a park. He had a vision of Decatur that began practicing under the name of Parsons & Guyton, included industry, but refused to stop there.” Gilmer and the office has been located at 4507 Gary Avenue in Blackburn will be missed, not only by his family and his Fairfield since 1984. colleagues, but also by the citizens of his city. In 1960, Mr. Guyton married Martha Lou Harless and —Mark Daniel Maloney, Decatur later they had two children, Jeffrey P. Guyton and 18 January 2010 44726-1 AlaBar.qxd:Layout 1 1/21/10 3:48 PM Page 19 Tracey G. Cole. Mr. Guyton also has an adorable eight- deservedly so. While there were accolades, publica- year-old granddaughter, Katie. Mr. Guyton and his fami- tions, authorships and honors, Bob’s legal presence ly have been long-time members of Mountain Brook was more of an intangible greatness. Baptist Church. Some people thought that when Mr. While law was important to Bob, his greatest passion Guyton’s beloved Martha Lou passed away in 2002 he was for his family. If he were here today for me to ask would retire. Not so—it wasn’t until he was physically him what his greatest accomplishment in life was, I unable to drive himself to work that he was forced to know he would answer his two sons, Harrison and retire this July, at the age of 83. Draper. My days of practice with Bob were always filled In 2008, the Alabama State Bar recognized Mr. with stories of carpool adventures, Auburn football Guyton’s 50 years of service as an attorney. He was a games and going to the lake house, and all included his long-standing member of the Fairfield Chamber of boys. After my girls were born, Bob became not only Commerce, the Exchange Club, the Birmingham Bar my legal mentor but also my parenting mentor–a role I Association and the Alabama State Bar. He had a general think he preferred! I hope that I can live up to his hopes practice, but his primary concentration over the last sev- for me as a lawyer and a mother. I will miss my law eral years had been in planning and probating estates, partner, my mentor and my friend. I know I am not representing landlords and real estate transactions. alone in missing him. Unfortunately, Mr. Guyton passed away September —Wendy N. Thornton, Birmingham 24, 2009. He touched so many lives with his wit, warmth and knowledge. He will be truly missed. —Jeanne Wood, PLS John A. Lockett, Jr. John A. Lockett, Jr., 66, of Selma, died October 31 after a brief illness. Mr. Lockett is survived by his wife of Robert W. Lee 36 years, Martha Beasley Lockett of Selma; his mother, Robert W. Lee, age 55, passed Louise D. Lockett of Selma; his sons, John A. Lockett III away on August 16, 2009. The legal (Erin) of Atlanta and Peyton B. Lockett of Birmingham; a world lost a vital, talented member sister, Sue Lockett Lovoy (Steve) of Birmingham; and of its bar at too early of an age. nieces and a nephew. Those of us fortunate to have had Mr. Lockett was born in Selma November 21, 1942. Bob in our legal lives will miss him for several reasons. He graduated from A.G. Parrish High School in Selma He had the uncharacteristic ability to make every in 1960 and from Birmingham-Southern College in lawyer, young or old, feel important and worthy of the 1964, where he was a member of Sigma Alpha Epsilon practice of law. This is a rare talent that speaks volumes fraternity. He graduated from the University of Alabama about his character. But, mostly, he made the practice School of Law in 1967. After serving a short time as an of law fun. Not many can carry this badge of honor. a