Lawyer The Arkansas
A publication of the Arkansas Bar Association
In This Issue Generational Perspectives—The Humphreys Members Who Have Served in the Military The New Child Support Guidelines NFL’s CBA Agreement
Vol. 53, No. 4, Fall 2020 online at www.arkbar.com
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PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 421-0732 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins PROOFREADER Cathy Underwood EDITORIAL BOARD Anton Leo Janik, Jr., Chair Melody Peacock Barnett Luke K. Burton Dr. Frankie Martin Griffin Haley M. Heath Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. William A. Waddell, Jr. Brett D. Watson David H. Williams OFFICERS President Paul W. Keith President-Elect Bob Estes Secretary Glen Hoggard Treasurer Joe F. Kolb Parliamentarian Aaron L. Squyres BAR ASSOCIATION STAFF Executive Director Karen K. Hutchins khutchins@arkbar.com Executive Administrative Assistant Michele Glasgow mglasgow@arkbar.com Director of Government Relations Jay Robbins jrobbins@arkbar.com Director of Education & Administrator of Staff Relations Kristen Frye kfrye@arkbar.com Data Integrity Specialist Alexis Teal ateal@arkbar.com Director of Finance & Administration Yan Chen ychen@arkbar.com Meetings & Membership Director Jennifer Jones jjones@arkbar.com Office & Data Administrator Cynthia Barnes cbarnes@arkbar.com Publications Director Anna Hubbard ahubbard@arkbar.com The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@ arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2020, Arkansas Bar Association. All rights reserved.
The Arkansas
Lawyer Vol. 55, No. 4
features 8 Generational Perspectives The Humphreys Photos by Mike Pirnique
18 Both Sides of the Coin: Arkansas' New Child Support Guidelines By Geoffrey Davis Kearney
24 Practice Tips on the New Child Support Guidelines By Lauren White Hoover
26 The National Football League's Most Recent Collective Bargaining Agreement: Some Ins and Outs By J. R. Carroll and Chris Turnage 36 Members Who Have Served in the Military
38 We are the 22 By Joseph W. Price II
Contents Continued on Page 2
Lawyer The Arkansas Vol. 55, No. 4
in this issue ArkBar News
4
Executive Director's Report
14
Practice Link article
16
ArkBar Young Lawyers Section
32
Arkansas Access to Justice
42
Disciplinary Actions
45
Arkansas Bar Foundation
46
In Memoriam
47
ArkBar Mid-Year Meeting
48
columns
President’s Report Paul W. Keith Young Lawyers Section Report Chris Hussein
7 32
Board of Trustees
District A1-A2: Maggie Benson, Evelyn E. Brooks, Leslie Copeland, Jason M. Hatfield, Brian C. Hogue, Sarah C. Jewell, Alan L. Lane, George M. Rozzell District A3: Kesha Chiappinelli, Geoff Hamby, Jason B. Hendren, Ryan Scott District A4: Kelsey Kaylyn Bardwell, Craig L. Cook, Brinkley Cook-Campbell, Dusti Standridge Delegate District A-5: Melanie Ann Beltran, Joe Denton, Todd C. Watson, William “Zac” White District B: Jordan Bates-Rogers, Randall L. Bynum, Thomas M. Carpenter, Tim J. Cullen, Bob Edwards, Caleb Peter Garcia, Jesse J. Gibson, Steve Harrelson, Michael McCarty Harrison, Rachel Hildebrand, Anton L. Janik, Jr., Jamie Huffman Jones, Jessica Virden Mallett, Skye Martin, Kathleen M. McDonald, J. Cliff McKinney II, Molly McGowan McNulty, David Stockley Mitchell, Jr., Carter C. Stein, Patrick D. Wilson District C1-C2: Christopher Heil, Victoria Leigh, Stefan McBride, Jeremy M. McNabb, Meredith S. Moore, John Ogles, John Rainwater, George R. Wise District C3: Bryce Cook, Paul Nathaniel Ford, Brant Perkins, Paul D. Waddell District C4: S. Taylor Chaney, Carol C. Dalby, Amy Freedman, Taylor Andrew King Delegate District C5: Kandice A. Bell, Laurie Bridewell Steele, R. Margaret Dobson, George A. Lea, III At Large Members: Brian Rosenthal and Chris Hussein; Liaison Members: Dean Theresa M. Beiner, Dean Margaret Sova McCabe, Harry Truman Moore, Gregory J. Northen, Judge Hamilton H. Singleton, Judge Cindy D. Thyer Law Student Representatives: TBA, University of Arkansas School of Law; Deepali Lal, UA Little Rock William H. Bowen School of Law
2
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ArkBar News Congratulations to Members Celebrating Their 25th Year of Practice Judge Tonya Michelle Alexander Michele Simmons Allgood William Phillips Allison Michelle Ator Ron W. Banks Angela S. Beehler Scott E. Bellm J. Ken Berley Morgan A. Berry Deborah Pike Bliss Clifford P. Block M. Christina Boyd Marcus Neil Bozeman Judge Earnest E. Brown, Jr. Jennifer M. Browne Rufus Thomas Buie III Robert A. Burk William Burroughs Mary Catherine Caroom Mitch Cash Terri Dill Chadick W. David Cheek Lile S. Choate Robert V. Cornish Allison J. Cornwell Mark W. Dossett Terry Dugger Hon. Barbara G. Elmore Jason D. Files Carol A. Fletcher Timothy G. Gauger John K. Griffin Jack D. Grundfest Harold W. Hamlin Daniel Lee Herrington Alison Ray (Bunch) Hershewe Kellie J. Hohenshelt Troy A. Hornsby Christine Horwart Renae Ford Hudson Alexandra A. Ifrah John R. Irwin Michael F. Jones Robert S. Jones Ed M. Koon Roger W. Landes Paul A. Lipsmeyer Danielle Litaker Nall Vicki McNatt Lucas
Leslie Mann David L. McCune Don S. McKinney Kelly M. McQueen Alicia D. Mitchell Robert Jeffrey Mitchell Kristi M. Moody Judge Christopher W. Morledge George B. Morton John P. Neihouse Susan Elizabeth Nichols Cathy S. Norwood Kevin Odum Thomas J. Olmstead Tamara Lea Osborne Lynn McKnight Parker Jack T. Patterson II L.R. Loriane Pickell Kathryn E. Platt Clifford W. Plunkett Terry W. Pool Mark Wesley Rees Lisa Ann Reeves Angela B. Rice Karen Lynn Roberts James D. Robertson David J. Sachar Jane Watson Sexton James A. Simpson, Jr. Richard Allen Smith Judge Thomas E. Smith Jennifer Thornton Stone Jodi Lane Strother Mary Ellen Ternes Albert J. Thomas III Benita Jo Thomason Christopher Robert Thyer Judge Cindy Thyer Rebecca Tucker Danyelle J. Walker Garland L. Watlington Rick E. Watson Lorie Lee Whitby Dennis Keith Wilson Rick Woods Lynn Lile Wright Judge Robert H. Wyatt John W. Yeargan, Jr.
Class of 1995 4
The Arkansas Lawyer
www.arkbar.com
Ann Pyle Celebrates 25 Years as Executive Director of the Arkansas Bar Foundation Ann Dixon Pyle recently celebrated her 25-year anniversary as Executive Director of the Arkansas Bar Foundation. Ann provides outstanding service to the Foundation, its Fellows, Officers, Board, committees, donors, and other volunteers. Pyle Arkansas Bar Foundation President Judge Cindy Thyer said, “Ann has faithfully served the Foundation with grace, professionalism and selfless devotion throughout her time with the Foundation. Please join me in reaching out to her and thanking her for service as Executive Director of the Foundation. We are blessed to have her and hope she continues with us for years to come.” Arkansas Bar Association Publication Director Anna Hubbard Celebrates 15 Years Arkansas Bar Association’s Publications Director Anna Hubbard recently celebrated her 15-year anniversary with the Association. “Anna is a calming and creative force for our Association,” said Executive Director Karen K. Hutchins. “Her wit and humor bring laughter to staff as we juggle continuous deadlines Hubbard and ever-changing marketing. Her masterful guidance over the long-standing The Arkansas Lawyer magazine has led to statewide award winning recognition from the Society of Association Executives.” “Anna’s journalism background and digital design brings the Association to life in our efforts to connect and educate our members in this virtual world. Anna, we appreciate your dedication to the Association for this past 15 years and look forward to all your creative ideas leading us into the future.” Cathy Underwood Honored with Fastcase 50 Award Cathy’s value to ArkBar goes far beyond Fastcase. She has served the bar in various capacities for over 35 years. Her first major project was typing and proofing the Arkansas Form Book in 1988, and she has worked on almost every handbook since then. She helped Underwood create the Arkansas Form Book on computer diskette which launched in 1990. That was the first year Cathy manned a booth at the ArkBar annual meeting; she has manned that booth for us 28 of the 30 years since then and has presented many times on ArkBar Docs, Fastcase, and before that Versuslaw. In 1998, she served as editor for the centennial issue of The Arkansas Lawyer celebrating ArkBar’s 100th year. She stuck around to serve as Publications Director for the next year—no small feat because she was attending law school at the time. She won a golden gavel in 2010 for serving as chair of the online legal research committee, the committee that chose Fastcase for ArkBar's free member benefit.
ArkBar Honored with Awards for The Arkansas Lawyer magazine and 2020 Annual Meeting
Oyez! Oyez! ACCOLADES Arkansas Access to Justice honored Brian Rosenthal with the Outstanding Pro Bono Service Award-Large Firm and Sol Kim with the Outstanding Pro Bono Service Award-Medium Firm. The University of Arkansas at Little Rock recently honored Ron Sheffield and Becky Blass with its Distinguished Alumni awards. Cynthia Nance, dean emeritus and the Nathan G. Gordon Professor of Law at the University of Arkansas School of Law, has been named chair-elect of the American Bar Foundation Fellows. Congratulations to the following graduates of the Leadership of Greater Little Rock Program: Thomas H. Wyatt, Quattlebaum, Grooms & Tull PLLC; Taylor Stockemer, Friday, Eldredge & Clark, LLP; and Devin Bates, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. Little Rock attorney Michael Mayton was recognized with the Arkansas Arts Center’s Winthrop Rockefeller Memorial Award. Wright Lindsey Jennings partner David L. Jones has been selected the 2020 recipient of the Defense Research Institute Davis Carr Outstanding Committee Chair Award for his work as Chair of the Construction Law Committee.
122nd Arkansas Bar Association Annual Meeting June 8-13, 2020
UAL! VIRT Opening Plenary Speaker • Wednesday June 10 • 5:30 - 6:30 PM
Criminal Justice Reform Activist
Judge Victoria Pratt
Topic - “Why What We Do Matters” Followed by opening welcome reception
G U EST S P E A K ER S MAKING A DIFFERENCE TO CLIENTS
MAKING A DIFFERENCE IN HER COMMUNITY
MAKING A DIFFERENCE IN THE PROFESSION
Laura Nirider
Kelsey Skaggs
Judge Victoria Pratt
Mark Lanterman
Sean Carter
Jennifer Strouf
Attorney for Brendan Dassey of Making a Murderer and Damien Echols of West Memphis Three
Co-Founder of the Climate Defense Project
Chief Judge of Newark Municipal Court
Chief Technology Officer of Computer Forensic Services
Wednesday, June 10 7 - 8 PM & 8 - 9 PM
Friday, June 12 3-Hour Course on Interactive Evidence
nEW! LATE NIGHT COMEDY CLE
BACK BY POPULAR DEMAND
nEW! INTERACTIVE CLE
THURSDAY EVENING SHOWDOWN RETURNS!
watch for more info @ www.arkbar.com/annualmeeting
Food & Live Entertainment! Watch for more information coming soon.
Lawyer The Arkansas
A publication of the Arkansas Bar Association
Vol. 55, No. 2, Spring 2020 online at www.arkbar.com
During uncertain times, ArkBar is moving forward with virtual conferences and new technology benefits.
Inside: COVID-19 Commentaries Hunger and Food Insecurity Insurance Coverage Custodial Relocation 2020 Annual Meeting Virtual Conference
The Arkansas Society of Association Executives recently awarded ArkBar two 2020 Excellence in Communication Awards: the 2020 Annual Meeting received the award for overall marketing campaign and the Spring 2020 issue of The Arkansas Lawyer magazine received the single piece award.
ArkBar’s Inaugural Public Service Academy Receives National Award The Arkansas Bar Association has been selected as a winner of a 2020 National Association of Bar Executives/LexisNexis Community & Educational Outreach Award for the Inaugural Public Service Academy program. inaugural Public Service Academy
APPOINTMENTS AND ELECTIONS Quattlebaum, Grooms & Tull PLLC announced that Steven W. Quattlebaum has been elected to the position of National Vice President of the American Board of Trial Advocates (ABOTA) beginning in 2021. Elected by the general membership, Steve will become National President of ABOTA in 2023. The firm also announced that Joseph W. Price II has been appointed to the Board of Directors of We Are The 22, an Arkansas nonprofit focused on direct veteran suicide intervention.
“The best way to find yourself is to lose yourself in the service of others.” Mahatma Gandhi.
chaired by:
Maggie Benson and Nate Looney
With assistance by:
Nikolai DiPippa and Jay Robbins
Steering Committee:
Former Chief Justice Howard Brill Judge Earnest Brown Speaker Matthew Shepherd
• • •
WORD ABOUT TOWN Gibson & Keith, PLLC announced that Daniel Wigley joined the law firm as an associate attorney. Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. announced that Cara Butler and Hannah Butler have both joined the law firm as associates in the Little Rock and Rogers offices. Dover Dixon Horne announced that Michael M. Pollock and Eli C. Bauer joined the firm as associates. Quattlebaum, Grooms & Tull PLLC announced that four new associates joined the firm’s Little Rock office: Bria Blair Guthridge, Glenn V. Larkin, E. Jonathan Mader and Robbi Riggs Rosenbaum. The firm also announced that Andrew S. Dixon returned to the firm as a litigation associate in the Northwest Arkansas office after serving as a law clerk to the Honorable Robert T. Dawson. Please send Oyez announcements to ahubbard@arkbar.com. Tailgating Event with Chef Ferneau
ArkBar hosted a virtual tailgating event with Chef Donnie Ferneau who demonstrated some recipes perfect for a tailgating or game-watching event. Member amateur chefs pictured above from left to right: Paul Keith, Brian Ratcliff, Mike Medlock and Chef Donnie Ferneau.
• • • 34
Thank you to our sponsors
ArkBar Civil Litigation Section ArkBar Government Practice Section University of Arkansas School of Law University of Arkansas Little Rock William H. Bowen School of Law Rose Law Firm Brian Rosenthal
“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.” Margaret Mead
The Arkansas Bar Association and the University of Arkansas Clinton School of Public Service launched the inaugural class of the Public Service Academy in Little Rock November 15-16, 2019 and in Fayetteville January 17-18, 2020. The Public Service Academy was established to provide serviceminded lawyers the tools they need to serve in both elected office and as volunteers. The academy is believed to be the third program sponsored by a bar association in the United States following North Carolina (2017) and Tennessee (2018). “Do we really need more lawyers in service?” The answer is an emphatic yes! Lawyers lead, serve and give back to their communities in so many ways. Our competitive, statewide Public Service Academy will serve as a launchpad for public service achievements by these attendees as well as those they mentor. Arkansas Bar Association President Brian Rosenthal’s remarks to the inaugural class of 25 lawyers and 12 students from the University of Arkansas, Fayetteville School of Law, Bowen School of Law and the Clinton School of Public Service are excerpted on the following page. On page 36, you will find descriptions of the presentations that were made and a listing of our presenters at our two sessions. Read more about the academy at www.arkbar.com/events/public-service-academy. The next academy will be in 2021.
2021 Mock Trial Competition and Congratulations to Mock Trial Chair Anthony McMullen The Arkansas Lawyer
www.arkbar.com
“The Mock Trial Committee is a great way for lawyers to serve our community while helping to educate the next generation of students on our legal system,” said Anthony McMullen McMullen. Congratulations to Anthony for recently being named Coach of the Year by the International Public Debate Association. The 2021 competition will be held virtually, so you can volunteer from your home or office. Regional Competitions are scheduled for Saturday, March 6, 2021, and the State Championship will be held on Saturday, March 20, 2021. No prior mock trial experience is necessary. Volunteer registration will open in January. To volunteer, please visit www.arkbar.com/ ARMockTrial. Vol. 55 No. 4/Fall 2020 The Arkansas Lawyer
5
A Call to Leadership Nominations due for President and Board of Trustees positions on January 31, 2021
Election Cycle Timeline January 31st Deadline for submission of completed nomination forms to the Arkansas Bar Association’s Secretary
February 15th Deadline for mailing of ballots in contested races
2021-2022 Districts
Total No. Seats
No. of Available Seats
March 18th Deadline for receipt of signed ballots
County(ies) within Each District
A1
4
1
Benton
A2, A3
8
3
Washington
A4
4
2
Carroll, Boone, Madison, Newton, Johnson, Franklin, Crawford, Sebastian, Logan
B9-15
28
9
Pulaski
C5
4
1
Marion, Baxter, Fulton, Sharp, Randolph, Lawrence, Izard, Stone, Searcy, Pope, Van Buren, Cleburne, Independence, Jackson, White, Faulkner, Conway, Pope, Yell, Perry
C6
4
2
Clay, Greene, Craighead, Mississippi, Poinsett, Woodruff, Cross, Crittenden, St. Francis, Lee, Monroe, Prairie
C7
4
0
Lonoke, Phillips, Arkansas, Jefferson, Grant, Clark, Dallas, Cleveland, Lincoln, Desha, Drew, Bradley, Calhoun, Ouachita, Columbia, Union, Ashley, Chicot
C8
4
2
Scott, Polk, Montgomery, Garland, Saline, Hot Spring, Pike, Howard, Sevier, Hempstead, Nevada, Little River, Miller, Lafayette
Total Trustees
60
20
Nominations for 2021-2022 President-Elect
ArkBar’s new Constitution, adopted at the June 2020 annual meeting, sets a new deadline for submitting nominating petitions for the Office of President-Elect. The new date is January 31, 2021.
This brings the election of the President-Elect in line with the election of the Board of Trustees. The Office of Secretary is also to be elected in the same election cycle with the same January 31st deadline. The next president-elect designee will come from Bar District B, which encompasses all of Pulaski County. Please contact Karen Hutchins at 501-801-5663 for nominating petitions for the Offices of President-Elect. Nominations are being collected for the Office of Secretary and
Secretary and ABA Delegate
American Bar Association Delegate positions Contact Karen Hutchins at 501-801-5663 for information on these positions.
Nomination petitions for these positions can be found at https://www.arkbar.com/for-attorneys/elections. 6
The Arkansas Lawyer
www.arkbar.com
PRESIDENT’S REPORT
Justice “Justice Must Satisfy the Appearance of Justice”
A priority for the Arkansas Bar Association in the 2021 General Assembly is to advance our bill to require disclosure of the identities of those who make contributions to independent expenditure committees in an attempt to influence Arkansas appellate judicial elections. In this context, an independent expenditure is an expenditure within 120 days of an election that names or depicts a candidate and is not made in concert with or at the request or suggestion of a candidate or an authorized committee or agent of the candidate. The Center for Responsive Politics reports that independent expenditures in federal elections have risen 76% in four years from $1.48 billion in 2016 to $2.6 billion in 2020.1 Independent expenditures are not new to Arkansas appellate judicial elections. In the category of television advertising alone, appellate judicial candidates were outspent almost three to one by outside groups from 2014–2018. This data comes from The Brennan Center for Justice, the Arkansas Ethics Commission, the Arkansas Secretary of State and the FCC. This kind of money has the potential to erode public confidence in the judiciary. According to the Brennan Center, a 2010 survey revealed that 70% of Democrats and 70% of Republicans believe that campaign expenditures have a significant impact on courtroom decisions, and only 23% of voters believe campaign expenditures have little or no influence on elected judges.2 These “dark money” expenditures have no place in judicial races. The claims made in the ads can appear to be from the candidate, yet may not be permitted by Judicial Canons. Dark money expenditures deny the public and the candidates an opportunity to challenge the credibility of these speakers. And, a candidate who is attacked may be also restricted by Judicial Canons from making an effective response.
Paul W. Keith is the President of the Arkansas Bar Association. He is a member of Gibson & Keith, Monticello
It is against this backdrop that the Jurisprudence and Law Reform Committee of the Association prepared a bill3 to require Independent Expenditure Committees to identify the sources of their millions. I say “millions” because in the election cycles of 2014–2018, Independent Expenditure Committees spent at least $2,999,995.00 on the races for Arkansas’ appellate courts. By contrast, the candidates in those races spent just $1,071,673.99. To say the least, this is high-dollar meddling in the affairs of Arkansas citizens. Public confidence in the judiciary is no small matter. Writing for the majority in 2015, Chief Justice John Roberts said that the Court has “recognized the ‘vital state interest’ in safeguarding “‘public confidence in the fairness and integrity of the nation’s elected judges.”’”4 The Chief Justice went on to note, in the majority opinion, “[a]s Justice Frankfurter once put it for the Court, ‘justice must satisfy the appearance of justice.’ It follows that public perception of judicial integrity is ‘a state interest of the highest order.’”5 The founders of our republic recognized that public confidence is crucial because the judiciary’s power is derived from the respect and trust reposed in it. “The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary ‘“has no influence over either the sword or the purse; ... neither force nor will but merely judgment.”’”6 As lawyers and guardians of the Constitution, we must do all we can to preserve and enhance public confidence in the judiciary. It is worth noting that the Association bill is narrowly tailored in at least three ways. First, it is restricted to elections for appellate judgeships. Second, the Act will not interfere with citizens’ groups who wish to survey candidates and to communicate
the survey results to their members or with the ordinary business of newspapers and broadcasters. Third, the bill does not propose a limit on contributions. But when our citizens are presented with an ad for or against an appellate judicial candidate, they deserve to know who is behind the message. One has but to remember Justice Brandeis’ admonition on the best disinfectant. “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”7 If Arkansas voters can sit on juries where life, death, and imprisonment hang in the balance, they can decide how to vote in a judicial race without “advice” from unidentified deep-pocketed intermeddlers. We can do better and we must. Endnotes: 1. https://www.opensecrets.org/outsidespending/ 2. Press Release, Justice at Stake, Solid Bipartisan Majorities Believe Judges Influenced by Campaign Contributions (Sept. 8, 2010), available at http://tinyurl.com/2c422fs. 3. The bill is entitled: An Act To Protect Public Confidence in the Integrity of Appellate Judicial Elections; to Require Disclosure and Reporting of Noncandidate Expenditures Pertaining to Appellate Judicial Elections; To Empower Citizens to Compel Transparency from Persons Making Noncandidate Expenditures; to Adopt New Laws Concerning Appellate Judicial Campaigns; and For Other Purposes. 4. Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1659 (2015) (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009). 5. Id. at 1666 (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954), citing Caperton, supra). 6. The Federalist No. 78, p. 465 (A. Hamilton), quoted by, Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1666 supra. 7. Louis D. Brandeis, Harper’s Weekly, Dec. 30, 1913. ■
Vol. 55 No. 4/Fall 2020 The Arkansas Lawyer
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Generational Perspectives The Humphreys
A
while back, The Arkansas Lawyer became aware of a special father/ son relationship that includes a shared interest in the law. Marion Humphrey, Sr., served 22 years as a district and circuit judge before retiring in 2010. He has since practiced law in Little Rock along with his other role as the pastor of Allison Presbyterian Church. His son and namesake, Marion Humphrey, Jr., has invested his adult life in social advocacy, particularly with young people and educators in Washington, D.C. and Little Rock, before attending the University of Arkansas Law School, where he is a 3L. We recently invited the two Marions to interview each other in the style of National Public Radio’s StoryCorps, and this is their dialogue. We are fortunate that they agreed to let us inside their close relationship. As you read their conversation, you will find wisdom and insight from both with a healthy dose of reality, reverence, and a will to be a positive influence as Arkansas lawyers. Mr. Humphrey: My name is Marion Andrew Humphrey, Jr. I’m currently a 3L law student at the University of Arkansas in Fayetteville, taking all-remote classes, so I’m living in Little Rock. I graduate Class of 2021 and I’m really looking forward to it. I can’t wait. Judge Humphrey: My name is Marion Andrew Humphrey, Sr. I am currently a lawyer in Little Rock. I served for 18 years as a Pulaski County Circuit Court judge. Prior to that, I served as a Little Rock Municipal Court judge. That court is now called “Little Rock District Court.” I retired from the circuit court bench at the end of 2010. Since then, I have continued serving as the pastor of Allison Memorial Presbyterian Church, and I have done legal work. I have reduced the legal workload I began when I retired. I am a graduate of 8
The Arkansas Lawyer
www.arkbar.com
From left: Judge Marion Humphrey Sr. and son Marion Andrew Humphrey Jr. Photography by Mike Pirnique.
the University of Arkansas School of Law at Fayetteville in 1980. Judge Humphrey attended public schools in Pine Bluff and is a graduate of Phillips Exeter Academy in Exeter, N.H. He received a bachelor of arts degree from Princeton University, a master of divinity degree from Harvard Divinity School, and a juris doctor degree from the University of Arkansas School of Law. Mr. Humphrey: So, Dad, when you were finishing law school, what was it like? Judge Humphrey: I was really happy to be finishing law school. I had begun earlier and had not had my heart in it. I went to divinity school and returned to finish what I had begun earlier. I had to make up some
things and I was just tremendously happy to have completed my law school course of study. I was looking forward to becoming a lawyer, even though I was not certain I would ever practice. Mr. Humphrey: What did you think your life as a lawyer would look like? Judge Humphrey: I didn’t know. I was looking forward to using my legal background, but, being bi-vocational, I wasn’t sure how I would use it. I just knew that I wanted my law degree, and I wanted to be admitted to the practice of law. But, I didn’t know if I was going to use my legal background to set up a law practice, or to work for the government, or simply to use it for community and political activism purposes.
Parents often think they know what their children’s hopes and dreams are, but we seldom have a forum to hear the kind of direct questions and the holistic life-view responses that occurred between this father and son “in the law.”
Mr. Humphrey: So, similarly, what were your expectations? What were your hopes and dreams? Did you think it would be easy to transition into life as a legal professional? Judge Humphrey: Of course. And, I really liked the flexibility that a law degree gives an individual and opportunities made available through admission to the Bar. There are so many things that an individual can do. He or she is not restricted to actual courtroom work or to the practice of law on a daily basis. The legal background is important for other disciplines and for interests that an individual might have in terms of community involvement. And, I’ve always been interested in community affairs since I was very young. I think that a law degree is really valuable for an individual who has an interest in government, in public affairs, and my case, in civil rights. Of course, a person can also make a decent living in the legal field. Marion Jr. then asked his father about the world as he saw it on the threshold of graduating from law school, and Sr. tossed the same question to his son for his view in 2020 along with how he sees his life as a future lawyer. Jr.’s responses also gave his father some insight into how he saw his father as a judge and lawyer while Jr. was still young. Mr. Humphrey: So Dad, let me ask you— what was the world like as you were finishing law school? What was the world like in 1980?
Judge Humphrey: In 1980, the world was, as I recall—you know, that’s been a few days ago—I really have to think about that. It was an election year, as is this one. Jimmy Carter was running for reelection and Ronald Reagan was challenging President Carter at the time. There was a lot of commotion about the hostages held in Iran. So, things were tense on that level. And, the domestic issues were generally the same as we have today: How is the economy going to behave? How are people going to feed their children? Inflation was a big issue, because interest rates were so high. And, civil rights, of course, always seems to be an issue in our society. It was an issue then. People, such as I, had questions about Reagan’s commitment to civil rights as opposed to Jimmy Carter’s proven record. How does the world look to you as you are contemplating graduation from law school? Mr. Humphrey: While I don’t have as many decades in as you do; I did go to law school a little bit older than most law students. I started law school at the age of 30. I think there are so many issues that are somewhat unchanged since your law school years. In terms of civil rights, inequity has since been codified into other practices, other policies, policies that continue to impact all communities. And, I’ll be finishing up law school post COVID-19 (hopefully) and through racial injustice experiences, protests in anger, and people heartbroken at the conditions
of America; it all doesn’t look that great to me. It looks backwards, but I think that’s kind of why I went to law school to begin with. Many people are challenged by the environment in which they live. In America, the way that we do justice is very different than other developed countries. The way that we do policing is very different than other developed countries. It’s really surprising to hear right now from people I’ve met all across the world just how baffled they are at how America treats things like mass incarceration and policing. Their police have options, such as not even carrying guns, while we have people who are crying out for help because of how police have policed their neighborhoods, policed their communities and how they’ve worked to give us a prison population in America that is unlike any other developed country across the world. So I think that, you know, yes, there have been successes along the way for different communities, but there’s such disparity still today and there is so much disappointment with how the country really thinks about things like equity and equality. Judge Humphrey: How do you think your life will look as a lawyer, though, in particular, working in the legal field? Mr. Humphrey: Well, I think I agree with you, in terms of the flexibility of the law. When you were a judge, I didn’t see much flexibility in the position. Even though many different cases came before you, you basically
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worked a regular nine-to-five then came home. But when you retired, however, I saw how diverse the different issues you were able to address through the law—whether it’s been civil or criminal law, tort or family law, public interest—your lawsuits have run the gamut. So, I went to law school to, one, possibly work myself out of having a boss. But also—like you —to really be able to address the concerns that I think folks in the community have on a regular basis. While some of those concerns are very personal, like family law matters, there are also systemic issues and problems that people are concerned about that a law degree really gives you the ability to reform. Having a legal education really allows a person to not just take on a case but also to address an issue on the fullness of how one should address that issue. So whether it’s advocacy, who you should talk to, what you should do, how do these things change. I’ve really enjoyed being able to figure out ways to address things that I’m concerned about as a person in the community. Parents often think they know what their children’s hopes and dreams are, but we seldom have a forum to hear the kind of direct questions and the holistic life-view responses that occurred between this father and son “in the law.” Judge Humphrey: What now are your expectations and hopes and dreams? Mr. Humphrey: Well, I think my expectations, hopes, and dreams are probably the same as most people: to put food on the table, to have a place to rest my head, to be able to enjoy the fun things of life. And one of my favorite experiences, during and after college, has been living abroad. I studied abroad in Beijing, People’s Republic of China during college and returned after undergrad for two years. I think that was, really, the first place I went abroad—a really far distance 10
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to be your first place to go abroad. But I think it did set a fire in me regarding being able to see other cultures that so many Arkansans don’t get that opportunity to or refuse to think that that opportunity is something worthwhile. Arkansas has one of the highest percentages of people who actually never leave the state. Long story short, I’d like to be able to travel as much as possible. But also, my expectations are to really address some systemic issues in Arkansas through the law. I hope that the law degree will allow me to work with different partners, build relationships with like-minded individuals, and support laws like warranty for habitability, for instance, so that landlords feel compelled to maintain a habitable presence for their tenants. I hope to dismantle homelessness, fully incorporate our undocumented residents and limit the criminalization of community members for unnecessary offenses. I’m really hopeful that I will be able to do that with the law. But again, on a personal level, to be able to support myself as an individual. Judge Humphrey: Well, good. Marion Jr. then asked for his father’s wisdom about what he sees as important for a new lawyer. Marion Sr. spoke with the kind of directness that we all need to hear, but especially a son, and the son then asked his father if he thought he had made a difference as a lawyer—the kind of question that all lawyers should be asking. Marion Jr. ends this portion of the conversation by answering the question about the difference his father has made in his eyes. Mr. Humphrey: So, Dad, what would you say to me and others who are about to enter the practice of law; what’s important for us to do and invest our lives in as lawyers?
Judge Humphrey: I think it’s important for you to make a contribution to the larger society. Obviously, it’s important that you be able to have a decent income. And, I am thankful for the practice of law for that purpose and for my service as a judge and having a judicial retirement for your mother and me. But, beyond that, I like the idea of being able to make a contribution to some of the issues that we face in our community. In our city, state and nation, a lawyer can bring attention to issues that impact people daily and that are of great concern. For instance, I believe lawyers can craft legal actions and participate in the drafting of legislation on matters that affect basic rights of citizens. Today, lawyers, as always, can behave as social engineers. I know that there is a lot of concern these days about issues such as noknock warrants and racial profiling. Lawyers can craft strategies about how to address such concern through legal proceedings and through drafting legislation. Some of us have raised issues about drug offenses and sentences. We have talked to legislators about sentencing issues concerning drug offenses. Over the years, I believe there has been some lessening of penalties on some drug offenses. Lawyers have addressed issues pertaining to sealing court records, so that offenders can have a new start. I think we can use our legal backgrounds to address all kinds of legal issues—not just social and civil rights. As an African American, I know that you are interested in issues pertaining to equal opportunities and equity. Mr. Humphrey: Do you feel that you’ve made a difference as a lawyer? Judge Humphrey: Yes. There are cases that I’ve had that have been difficult ones. I hesitate in mentioning a couple because I’m not sure the clients I represented want additional public attention drawn to them and about their involvement in
them, even if they were acquitted. In one case, I represented a young man who was charged with first-degree murder, among other charges, involving the death of a law enforcement officer down in Southeast Arkansas, where the officer died after crashing his vehicle while in pursuit of my client. The person I represented was charged with first-degree murder because, in the commission of a felony, according to the statute, he caused the death of the officer. He had been charged, also, with the felonies of fleeing and possession of drugs. We got an acquittal on the murder. He was, however, convicted on the felony drug charge and the jury reduced the fleeing to a misdemeanor. That was a pretty good outcome for what my client had been facing. He is now in graduate school in another state. He is a person who had never had problems with the law previously, and who had an exceptional reputation before that tragic incident. I have had some other impactful cases I have tried since my judicial retirement, cases that may be impactful on a larger scale. I tried the first—I don’t know if there have been others—re-sentencing case under Miller v. Alabama and Montgomery v. Louisiana, where a juvenile had been given a life sentence for a capital murder conviction on an offense he committed prior to his having turned 18. I tried that case over in Crittenden County. The jury gave him a 40-year sentence, which meant he was eligible for release, because he had spent 37 years in prison at the time of the re-sentencing trial and was eligible for some good time under the parole eligibility rules at the time of the commission of the offense. He has moved on with his life in another state. I represented three fraternity guys who were charged with felony battery second degree in what ended up as a conviction for hazing, an unclassified misdemeanor, in connection with a fraternity matter at Arkansas Tech. At least two of the three guys I represented have
gone on to attain masters degrees, and all three have relocated to other states with very good opportunities. Here, you’ve got young African American college and graduate men who had not been in trouble before, and just their fraternity involvement led to an unfortunate situation. We were able to get, I think, a good outcome, a good result, in those kinds of cases, and raise issues about how young people should be treated in these circumstances. I successfully defended in a three-day jury trial the only person ever charged criminally with violating the Arkansas Freedom of Information Act. My client was an African American male who was director of the Little Rock Housing Authority, and had a dispute with a reporter of the Arkansas Democrat Gazette over the release of some information that was both too voluminous for his limited staff to prepare and contained confidential information of some of the tenants. Never before had I seen a FOIA dispute filed as a criminal charge. My client is an outstanding citizen. And, so, do you have any idea what kinds of cases you look forward to addressing? Mr. Humphrey: Well, I look forward to doing something similar. I think that growing up in this society, as a Black man, gets you into situations where you’re confronted with the law throughout your life. The full Black community shares this experience. Black women have so many different issues that transpire both intraand inter-community. And, for me, most of those issues also stem from institutional and systemic circumstances that affect entire communities. I grew up in Little Rock, which is so highly segregated, and I’ve always been able to see the differences, as soon as I cross 630, how people actually even treat the community residents here: how the roads
are paved, what type of food is provided in the grocery stores, whether a grocery store exists within a mile radius. These are issues that have long been problems particularly for communities of color. But the narrative is often so divisive and it speaks to the choices that individuals from particular communities make rather than the choices that legislators, the General Assembly, and people who have long been in charge of the state have made to enhance separation and disparity. These are things that need to be addressed. And, for me, they need to be addressed on the systemic level before and with much more aplomb than the interpersonal level. For example, more interest is given to interpersonal issues like person-to-person crime, but what about the systemic issues in communities that cause people to think that those are the type of interactions worthy of participation? That’s the reason why I thought about going into law. I think you made a difference as a lawyer. I know the value and importance of public education. The Little Rock School District is so important to my life. I enjoyed the educational experiences I received at Washington Magnet. My experience at Dunbar Middle School was my favorite educational experience in life, college and law school included. And going to Little Rock Central High School with its history and with its possibilities prepared me for the rest of my life’s experiences. Witnessing what has transpired since, such as a takeover of a school district for over six years, schools plummeting in overall outcomes, and much less diversity throughout the district strikes me as the saddest thing I’ve endured during my return to Arkansas. These are not the same type of educational environments I experienced. Charter schools have resegregated the district, so that my elementary and middle schools are now nearly fully Black and much less
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Photos at the Humphrey home with Mrs. Vernita Humphrey in the center photo.
resourced. It’s really difficult to see, but it was encouraging to see someone like you, dad, push really hard on that issue using a legal framework—even all the way up to the Arkansas Supreme Court. It became quite clear to me that one can use a law degree to say we need to stop this and make sure that schools across the city have the same opportunities, funding, budgets, facilities, books, and opportunities. And, we need to figure out ways to get people from different backgrounds in the same classroom. That’s kind of what I’ve seen, in terms of your difference as a lawyer, being able to stand out on those issues to address them systemically and on a personal level— having a son who gained so much from the district. I don’t like for folks to know that my dad was a judge; I never have. It’s not something I lead with. We do share a name so it always comes up, but I will say that I don’t have a problem when it is said. And that is not the case for many different judges who have both criminal and civil dockets. There are a lot of young folks who, when they say who their parents are, they hear, “Well, I did not have a favorable circumstance in that court” or, even worse, “I hate that person.” But I always get more of, “Well, your dad gave me a chance that others did not; I was so happy to be in his court, his court was the one I preferred.” I’ve heard it not just from Black folks but plenty of white folks, particularly white men who had an experience in the courts. They talk about how going to your court helped put them on a different trajectory and gave them a chance. So, I would say that you definitely made a difference in a lot of people’s lives and you are probably what a judge in those positions should have been—sharing grace 12
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and seeing the humanity in most or all of the individuals who came before you. Judge Humphrey: I don’t have anything to say behind that. Mr. Humphrey: I won’t be nice the rest of the week for that. Judge Humphrey: They’ll have to have us do this more often. As they concluded their conversation, Judge Humphrey gave his parting words of wisdom, and Marion Jr. gave insights to his fellow law students and those who may come after him. Judge Humphrey: Well, I just encourage the young people to let God lead you and guide you and use the opportunities that you have been given to do the Lord’s work in your own way that is interpreted and do some good for others. There were times when I had to be tough in sentencing people, but, I tried to make distinctions on what is behavior that really needs tougher punishment as opposed to that where a person can be corrected with something less than incarceration or, even if incarceration, not trying to destroy them. And, I think too often, when some people talk about “law and order,” they’re actually out to destroy people—to say that people are incorrigible. I do not subscribe to that position. Obviously, some crimes mandate harsh penalties, and I was able to mete out such penalties where I deemed them to be warranted; but, for the most part, I think I was looking at trying to see how people could be rehabilitated—punished but not destroyed.
Mr. Humphrey: If someone is thinking about becoming a lawyer, I highly encourage it, even if he or she doesn’t end up practicing. Yet, it is a huge investment. I think that my years between undergrad and law school were very helpful for me to see what I could do with the law, so I also encourage taking some time before making the decision. The law, itself, is artificially complex and primarily used to benefit the elite. Younger folks can start to break down some of the intricacies of the law and make it possible for folks outside in the community to advocate for themselves. I believe that, for an institution that holds so much power, all should have access to it. The current systems rely on an outdated and classist way of learning the law that maintains inequity. You have to seek a lawyer’s counsel to make sure you don’t get evicted these days. You have to have a lawyer to make sure that the pollution plant in your low-income neighborhood doesn’t continue impacting your health. So, while I am really fortunate to have somewhat of a legal background, I would hope that the legal field would be able to expand into areas where people can really support themselves and have their rights upheld without so much intricacy. But, yeah, I think it’s a good degree overall. And that’s all I have to say for today. Judge Humphrey: Thank you. ■
A T T O R N E Y S
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EXECUTIVE DIRECTOR’S REPORT
Virtual Reality
ArkBar Offers New Technology Resources, Medical Insurance and CLE CENTRAL A year ago the term “virtual reality” had a totally different meaning than it does today. Everyone has created their own new virtual reality as we have adjusted to the challenges of the COVID-19 Pandemic. It has been amazing to watch how quickly our members and the legal community have adjusted to these challenges and have remained resilient for their clients. The Association has worked to assist our members to rise to meet the technological challenges brought about by the quickly evolving virtual reality. ArkBar has introduced new resources to assist attorneys in meeting their advancing technology needs and answering new office management questions raised by the rapidly advancing technology. In July, ArkBar rolled out the new benefit “Practice Link” which is found at our website www.arkbar. com/practicelink. Members can schedule a one-on-one consultation with technology specialists. Additionally, members have access to extensive training in technology to improve the efficiency of day-to-day office management. The resources include videos, checklists, white papers and articles. The Association has also made it a priority to help our members easily find the best medical insurance and medicare supplement insurance. The former Board of Governors and the current Board of Trustees have been researching this option for our members for three years. During this time of dealing with COVID-19, medical care is more critical to our membership than ever, so I encourage all members to learn more about the ArkBar Insurance Marketplace at arkbar. memberbenefits.com. Open enrollment began November 1 and ends December 15. 14
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Karen K. Hutchins is the Executive Director of the Arkansas Bar Association.
Members have access to licensed brokers if they have questions. The website is designed to provide easy access to insurance options making the decision process quick and easy. The Member Benefits Group has successfully provided insurance for multiple bar associations with good reviews, inlcuding Texas. ArkBar rolled out the new CLE CENTRAL which is a learning platform where you will find all of ArkBar’s CLE, including live streaming, on-demand and virtual events. CLE CENTRAL can be found easily on Arkbar’s website at www. arkbar.com/cle/cle-central. First-time users will need to create an account to get started. Once logged in, users can access the full library of courses, register for the seminars, download CLE materials and obtain their CLE certificates. ArkBar’s goal is to make sure all Arkansas attorneys have easy access to quality CLE 24 hours per day. The Board of Trustees and the leadership of the Arkansas Bar Association are committed to providing value to our members focusing on benefits that meet the true needs or our members. I hope each of you will take advantage of these important opportunities to assist you in your daily practice and lives. As always, I look forward to your feedback on your experiences so we can continue expanding our benefits that make a real difference in the lives and work of Arkansas attorneys.
Congratulations and Thank You to the Rose Law Firm The Rose Law Firm celebrated its 200th anniversary on November 1 at its Little Rock office. For the historic milestone, the firm announced it would launch a $200,000 philanthropic initiative to help seven organizations including the Arkansas Bar Association. “For two hundred years, Rose Law Firm has been committed to our clients, employees and the communities we serve,” said Robyn Allmendinger, managing member. “In the spirit of gratitude, today, I am pleased to announce our philanthropic initiative in honor of this anniversary, with gifts totaling $200,000 to benefit legal aid and nonprofit organizations in our state.” ArkBar President Paul Keith expressed his appreciation to the firm’s generous donation. “William Woodruff had been printing his Arkansas Gazette, the oldest newspaper west of the Mississippi, for barely a year when the Rose Law Firm was founded. I live in Rose founder Chester Ashley’s eponymous county where the pines grow tall in southeast Arkansas. The Rose Law Firm’s history is woven into Arkansas’ history and into the nation’s history. The Arkansas Bar Association is proud to honor this firm for its dedication to the people and causes of our great state.”
INSURANCE MARKETPLACE Introducing the ArkBar Insurance Marketplace, a multi-carrier private exchange designed exclusively for ArkBar members, their staff, and their eligible dependents. Coverage is available for both individuals and employer groups. Compare plans from major carriers, get quotes, enroll online, speak with licensed benefits counselors, and receive year-round concierge-level support. The ArkBar Insurance Marketplace offers you convenient access to products and benefits such as:
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memberbenefits.com/arkbar or call 800-282-8626
IMPORTANT DATES: Individual Health Insurance Open Enrollment begins 11/1 and ends 12/15. Nov 1 is the first day that you can shop for 2021 ACA-compliant health coverage.
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Products sold and serviced by Business Planning Concepts, Inc dba Member Benefits, the program administrator. The Arkansas Bar Association is not a licensed insurance entity and does not sell insurance.
Clean Up Your Writing Make it Clear and Concise By Danielle DavisRoe, Esq., Senior Consultant, Affinity Consulting Group This article is provided by Affinity Consulting Group as part of ArkBar’s member benefit Practice Link. Find more resources at www.arkbar.com/practice-link including a list of upcoming free one-hour CLEs on law practice management and technology.
While writing about complex issues is a focus of many attorneys’ days, between advising clients, researching the issues, going to court, and negotiating contracts, most attorneys have little time to focus on their writing style. Add on a multitude of pressing deadlines, and attorneys find themselves drafting most legal documents at the eleventh hour, leaving just enough time to proofread, but not enough time to revise. To improve your writing style, you must take the time for revisions that include a focus on your writing style. Focus on Clear, Concise Language The focus of most lawyers’ revisions should be on simplifying their language. Aim for clear and concise writing whenever possible. Attorneys are known for using 20 words when two words would do. This “lawyerly approach” to writing is deeply-rooted in tradition. To help shake the habit, let’s look at some specific bad practices. Passive Voice There is a time and a place for passive voice, but legal writing is not it. Active voice is more concise and clearer than passive voice. Passive voice occurs when the person or thing acting is not the subject of the sentence. For example: Plaintiff’s leg was broken by the defendant. In this example, the defendant is performing the action (the breaking of the leg), but the defendant is not the subject of the sentence (the plaintiff’s leg is the subject). When written in active voice, the sentence reads: Defendant broke Plaintiff’s leg. The sentence length is reduced from seven words to four words, it is easier to read, and it paints a better mental picture for the reader. Catching passive voice is easy. Passive voice always contains a form of the verb “to be” and follows it with a past participle – just watch for sentences using that formula while revising a document. Redundancy Redundancy comes in all forms. From including both written out and Arabic numerals to redundant phrases (e.g., “last will and testament” and “swear and affirm”), lawyers habitually include unnecessary words. Following a written number with the Arabic numeral in parentheses makes your writing hard to read and increases the possibility of error. If there’s a mismatch between the two, the drafting attorney unintentionally opened the door to litigation over 16
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the contract and a possible malpractice claim. Use the Arabic numeral alone to ensure accuracy and improve readability. Phrases such as “last will and testament” and “give, devise, and bequeath” are the norm in estate planning documents. However, “will” and “give” are sufficient. Needless Words Redundant phrases are not the only time lawyers use needless words in their writing. “Until” becomes “until such time as.” “Annual” becomes “on an annual basis.” “The fact that” appears frequently in legal writing, yet rarely adds any meaning or clarity to the sentence. Remove unnecessary words for more concise, clear writing. Tools to Help While there is no magic wand to start writing more concisely, there are tools that can help. Previously the bane of most writers’ existence, Microsoft Word’s grammar checker has become a useful tool for encouraging simplified, easily-understood language. Grammar checker is included with Microsoft Word. There is nothing to buy and nothing to install. WordRake, an add-in for Microsoft Word (Mac and PC) and Outlook (PC only), simplifies legal writing with the click of a button. Using tracked changes, WordRake cuts through extraneous language and produces clear, concise writing. While this tool is a bit pricey, WordRake can be life-changing for those who want to focus on writing more concisely. See https://www.wordrake.com for more information. Grammarly, another Microsoft Word and Outlook add-in, gives users a taste of its magic for free. However, most of its powerful editing features require a premium subscription. When analyzing a document for potential edits, Grammarly frequently proposes two or three alternatives to your existing phrasing. See https://www. grammarly.com for more information. Find an Editor Find someone else who writes well who is willing to edit your work. Have them edit your writing, tracking their changes as they go. A second set of eyes is invaluable at catching issues that the other tools will never catch. ■
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Both Sides of the Coin: Arkansas’ New Child Support Guidelines
By Geoffrey Davis Kearney
As of July 1, 2020, all new child support orders issued in Arkansas are governed by a new method of calculation. This article will provide a brief overview of the new approach.
Introduction The Supreme Court of Arkansas recently approved a revised version of Administrative Order 10, also known as the Child Support Guidelines. Though previous revisions implemented relatively minor changes, such as updates to the Support Chart to reflect higher cost of living, the revised version (“New Guidelines”) fundamentally changes the way Arkansas courts calculate child support amounts. The groundwork for this amendment was laid with the unanimous passage in April 2019 of House Bill 1802. This act amended Ark. Code Ann. § 9-12-312(a)(4) to require the Child Support Committee, a body comprised of judges and attorneys and appointed by the Chief Justice of the Supreme Court of Arkansas, to revise the Guidelines to take into account the income of both the payor parent and the payee parent. This change would bring Arkansas in line with the approach taken by the majority of states. Following the Child Support Committee’s submission to the court of the proposed New Guidelines, the court published them for comment in December 2019. In April 2020, the court published In re Implementation of the Revised Administrative Order 10,1 adopting the proposed New Guidelines.
Geoffrey is the proprietor of the Law Office of Geoffrey D. Kearney, PLLC, where he has a general practice focusing on Appeals, Civil Litigation, Personal Injury, Family Law, and Criminal Law.
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The Old Guidelines The first iteration of the Old Guidelines was implemented in 1990.2 Between then and the implementation of the New Guidelines, Arkansas courts have used the same basic process to calculate child support: 1) Determine the payor’s gross income, 2) Subtract allowed deductions like taxes and health care premiums from gross income to determine net income, 3) Take the net income and number of children and look to the Support Chart grid to determine what it states that parent should pay, and 4) Decide if any factors justify awarding more or less than the amount set forth on the Support Chart (i.e., a deviation). The payee parent’s income was considered, if at all, a factor supporting a deviation instead of a required step in calculating child support.3 Though courts could consider the custodial parent’s income, they were under no obligation to do so. This is no longer the law in Arkansas.
“As with most substantial revisions to the law, the New Guidelines present potential opportunities and challenges.”
The New Guidelines The New Guidelines represent Arkansas’ take on the Income Shares Model, a framework which “is based on the concept that children should receive the same proportion of parental income that they would have received had the parents lived together and shared financial resources.”4 In broad strokes, the process is similar to the Old Guidelines in that it considers income, allowed deductions, and number of children. However, the actual formula has changed profoundly. Under the New Guidelines, courts will: 1) Add the gross incomes of the parents to determine their Combined Gross Income (“CGI”); 2) Find the amount on the Support Chart that corresponds with the CGI and number of children shared by the parties; 3) Assign each parent, based on their proportional shares of the CGI, their respective share of the Basic Child-Support Obligation (“Basic Obligation”); 4) Add up the Allowed Additional Child-Rearing Expenses (“Additional Expenses”), such as health insurance premiums and daycare fees; 5) As with income, assign the parties their respective shares of the Additional Expenses, resulting in the Total Child-Support Obligation (“Total Obligation”); 6) Deduct the Additional Expenses that the payor is paying out of pocket from the total amount assigned them. This final amount, the Presumed Child-Support Order (“Presumed Amount”), is what courts will presumptively order the payor to pay.5
That’s kind of a lot to take in in the abstract. Let’s try an example–fortunately, there’s one included in the New Guidelines.6 Consider two parents, Payor and Payee, who share one child, Junior. Payor grosses $2,000 per month and Payee grosses $1,000 per month. This results in a CGI of $3,000. Under the new chart, the Basic Obligation based on one child whose parents have a CGI of $3,000 is $469. Based on the share of the combined income that each parent’s pay represents, Payor will be responsible for 2/3 of that amount, in this case, $312.67. Payee will be responsible for 1/3, or $156.33. Then, assume that the court finds that raising Junior requires $300 per month in Additional Expenses: $100 for Junior’s health insurance premium and $200 for childcare. Based on their respective incomes, Payor will be responsible for $200 of the $300 in monthly Additional Expenses, increasing Payor’s obligation to $512.67 (Payor’s $312.67 share of the Basic Obligation plus $200 in Additional Expenses), and Payee’s to $256.33 (a $156.33 Basic Obligation and $100 in Additional Expenses). The court will then look to the facts of the case to see who is actually paying which Additional Expenses and adjust Payor’s Total Obligation accordingly. The facts of this case are that Payor pays $100 per month for Junior’s health insurance premium, and Payee pays $200 per month for childcare. Therefore, the $100 Payor is paying for health insurance is deducted from his Total Obligation.
The resulting presumptive obligation will therefore be $412.67 per month. The shift that the Income Shares Model represents comes into a bit more focus when we consider what the obligation for the noncustodial parent would be if all the facts above were the same except that both parents gross $2,000 per month. Because they have the same income, the parents’ division of both the Basic Obligation and Additional Expenses will be 50/50. Per the Support Chart, the Basic Obligation for a single child whose parents gross $4,000 per month is $612. Based on their relative income, both parents would have a Basic Obligation of $306. Similarly, the $300 in Additional Expenses under these facts is divided equally, for $150 each. This would result in a Total Obligation of $456. However, Payor would still be credited for the $100 they pay out of pocket. Therefore, the Presumptive Amount would be $356 per month. The only amount the court would have been required to consider under the Old Guidelines was the payor’s net income; most of the other key elements used to arrive at the above amounts would have been a matter of discretion. The express, required consideration of both parents’ income offers the possibility of a child support system that ensures that children are supported at a level that is in line with their parents’ combined income while dividing the financial responsibility for the children more equitably. Deviations Though the standard for calculating a
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child support amount is the most profound change to the Guidelines, it is not the only adjustment that merits attention. Namely, the standard and factors for obtaining a deviation seem to have changed somewhat. Heightened Threshold for Deviations? To a substantial extent, under both the Old Guidelines and the New, calculating the amount that a noncustodial parent should pay in child support is simply math. The information that a court needs in order to decide what amount to order is contained in pay stubs, tax returns, and receipts for a limited class of expenses, and the figures that result are plugged into the Support Chart. However, there are often reasons to order an amount either higher or lower than the number that comes up on the Support Chart. This ordering of an amount different from what the Support Chart dictates is known as a deviation. Though the New Guidelines’ approach to deviations is similar to that of the Old Guidelines, there are some potentially meaningful differences. The language governing deviations in the New Guidelines largely echoes that of the Old Guidelines.7 For instance, under both versions, support orders must demonstrate that the court took into account the parties’ income and recite the presumptive amount under the operative Support Chart. Moreover, regarding deviations, both versions recite an “unjust or inappropriate” standard8 and require a court to make express findings on all “relevant factors.” Also, both state that courts are to presume that the Guidelines amount is correct. However, the New Guidelines contain a sentence and sentiment not found in the Old Guidelines: “A deviation from these Guidelines should be the exception rather than the rule.”9 The meaning of this sentence might well be a flashpoint in future child support litigation. Certainly, it is possible that this addition is a distinction without a difference; the Guidelines amount has been presumptively correct for some time, meaning that, by its very terms, a deviation is not supposed to be the norm. However, relevant provisions of the Old Guidelines simply do not contain such strong language concerning a court’s power to deviate. Moreover, this does not seem to be the mere implementation of an idea that already exists in Arkansas case law. Indeed, Arkansas appellate courts have tended to respect a circuit court’s determination regarding the propriety 20
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of a deviation. Though there is a formal requirement that deviations be supported by the trial court’s written findings,10 on the substance, decisions in this area have evinced a fair bit of trust in circuit courts’ decisionmaking. The failure to comply with the written findings requirement actually seems to be a more common basis for reversal than a determination that the court weighed the factors improperly.11 This deference is in line with the appellate standard regarding child support orders, by which the reviewing court will only reverse the amount of child support if it finds an abuse of discretion.12 Especially given that imprudently granted deviations do not seem to have been a problem under the Old Guidelines, it is difficult to know what to make of this new language. However, the previous (and rare) instances of the phrase suggest that it should be considered meaningful. For instance, six of the cases that include the phrase “exception rather than the rule” are older cases reciting the standard for mistrial, an infrequently granted remedy.13 Though the other instances also come in non-family-law contexts, they still support the notion that this language implies aberrance.14 Additionally, the manner in which other jurisdictions’ courts use similar phrasing in this context suggests it carries some measure of real weight. For instance, the phrase is used repeatedly in South Carolina and Washington deviation cases.15 It is certainly conceivable that appellate courts will review deviations the same way as they have for the past several decades. However, this language is, on its face, a directive from the Supreme Court of Arkansas that a certain outcome should be rare. Therefore, it must be due some significance. If this provision is interpreted as truly restricting courts’ ability to deviate, it should result in fewer deviations. At a minimum, it might require courts to at least make some pronouncement (presumably with citations to the evidentiary record) that the case before it is different from the standard child support case. Ultimately, this issue will be a matter for Arkansas appellate courts to decide. Modest Expansion of Bases for Deviation? Though, on one hand, the New Guidelines seem to discourage deviations, on the other, they arguably expand the bases upon which a court may deviate.
The New Guidelines set forth a number of specific grounds for a deviation: a. Educational expenses for the child(ren) (i.e., those incurred for private or parochial schools, or other schools where there are tuition or related costs) and/or the provision or payment of special education needs or expenses for the child(ren); b. The procurement and/or maintenance of life insurance, dental insurance, and/ or other insurance for the children’s benefit (for health insurance premiums, see Section II.2 infra); c. Extraordinary travel expenses for court-ordered visitation; d. Significant available income of the child(ren); e. The creation or maintenance of a trust fund for the children; f. The support given by a parent for minor children in the absence of a court order; g. Extraordinary time spent with the payor parent; h. Additional expenses incurred because of natural or adopted children living in the home, including stepchildren if the court finds there is a court-ordered responsibility to a stepchild; i. The provision for payment of work-related childcare, extraordinary medical expenses for the child in excess of $250.00 per year per child, and/or health insurance premiums. Ordinarily, these expenses will be divided pro rata between the parents and added to the base child support of the payor parent on the Worksheet. In that scenario, it shall not support a deviation. However, if the court chooses not to add them in the total child-support obligation, they could support a deviation[.]16 Additionally, there exists a “catch-all” provision stating that a court may deviate based on “any other factors that warrant a deviation.”17 In comparison, the Old Guidelines listed 12 “Relevant Factors” and eight “Additional Factors” for courts to consider. Though there is no express catch-all provision, these factors were not presented as exclusive.18 All in all, the New Guidelines probably represent an at least modest expansion of the grounds for a deviation. Though the New Guidelines do not list as many factors as the
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Old Guidelines, the catch-all provision would seem to accommodate factors that were included in the Old Guidelines but excluded from the New Guidelines as well as factors not yet thought of that might be presented by future parties. Additionally, as discussed above, even if courts were previously allowed to consider non-enumerated factors, the New Guidelines more expressly emphasize a court’s ability to do so. Conclusion As with most substantial revisions to the law, the New Guidelines present potential opportunities and challenges. The new approach offers the possibility of support orders that continue to center the best interests of the child while also being more equitable to parents. Moreover, it arguably broadens the bases for deviations at least slightly, a development that is somewhat offset by the apparent diminution of circuit courts’ discretion to grant deviations. These developments would seem to portend a more straightforward calculation in the great number of cases where both parties are happy enough with the presumptive amount not to aggressively seek a deviation and, overall, a more efficient, uniform child support system. However, no formula can guarantee an outcome that is either perfect in fact or satisfactory to all parties, and there will continue to be parents who, displeased with the presumptive amount, seek a deviation. Given that the New Guidelines themselves constitute a material change in circumstances,19 there will be ample opportunity to suss out the aspects of the New Guidelines that are most open to interpretation. These developments will be interesting to watch for families as well as practitioners. Endnotes: 1. 2020 Ark. 121. 2. See In re Guidelines for Child Support Enf’t, 301 Ark. 627, 784 S.W.2d 589 (1990). 3. See, e.g., Ceola v. Burnham, 84 Ark. App. 269, 273, 139 S.W.3d 150, 153 (2003) (“Section V of In Re: Administrative Order No. 10, Arkansas Child Support Guidelines, supra, sets forth the following factors to be considered when deviating from the amount set by the chart: food, shelter and utilities . . . and other income or assets available to support the child from whatever source.”). 4. New Guidelines at 2 § 1. Citations to the New Guidelines are to the page number 22
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section of the order as found on the Arkansas judiciary website. Available at https:// opinions.arcourts.gov/ark/supremecourt/en/ item/468402/index.do. 5. See New Guidelines at 13-14 § V.1. 6. See id. at 17-18. 7. Compare New Guidelines at 4-5, § II.2 with Old Guidelines at § V. 8. This is also codified at Ark. Code Ann. § 9-12-312(a)(3)(D). 9. New Guidelines at 4, § II.2 (emphasis added). 10. This requirement is still in effect under the New Guidelines. See New Guidelines at 5 § II.2. 11. See, e.g., Gilbow v. Travis, 2010 Ark. 9, at 6-8, 372 S.W.3d 319, 322-24 (discussing law governing deviation and affirming downward deviation in favor of high income payor parent where trial court made findings that Guidelines amount was not necessary to meet the children’s “reasonable needs”); Davis v. Bland, 367 Ark. 210, 215, 238 S.W.3d 924, 927 (2006) (“Although the court must consider the chart, it does not have to use the chart amount if the circumstances of the parties indicate another amount would be more appropriate. Any deviations from the chart amount, however, must include written findings stating why the chart amount is unjust or inappropriate. In sum, the court may grant more or less support if the evidence shows that the needs of the child require a different level of support.”) (citations omitted); Callan v. Callan, 2020 Ark. App. 205, at 6, 599 S.W.3d 145, 149 (reversing and remanding where trial court did not make findings in support of ordered deviation); Bass v. Bass, 2011 Ark. App. 753, at 4, 387 S.W.3d 218, 222 (reversing and remanding where “the court’s order does not state the amount of support required by the chart, nor does the order include specific written findings explaining why that amount is unjust or inappropriate after considering all of the relevant factors, including the best interests of [the children].”). 12. See Grimsley v. Drewyor, 2019 Ark. App. 218, at 19, 575 S.W.3d 636, 647 (citations omitted). 13. See, e.g., Back v. Duncan, 246 Ark. 494, 496, 438 S.W.2d 690, 691 (1969) (“An award of a mistrial is a step so drastic as to be the exception rather than the rule as a means of correcting an error. For such a step to be warranted it must be apparent that justice cannot be served by a continuation of the trial.”); Johnson v. State, 254 Ark. 293, 295,
493 S.W.2d 115, 116 (1973) (citing Back). 14. See Brewster v. Johnson, 260 Ark. 450, 456, 541 S.W.2d 306, 309 (1976) (election law case applying United States Supreme Court precedent and declining to apply heightened standard of review to durational residency requirement in part because “[t]he individual interests affected by the classification,” in this case, being able to run for office in an area to which one was a relatively new resident, “are the exception rather than the rule”) (abrogated on other grounds by State v. Jernigan, 2011 Ark. 487, 6, 385 S.W.3d 776, 780); Woolbright v. State, 357 Ark. 63, 87, 160 S.W.3d 315, 331 (2004) (Thornton, J., dissenting) (quoting New Jersey case warning against allowing dual-jury trials); see also Ark. Code Ann. § 28-68-115, Uniform Law Comment (“While as a matter of good practice an exoneration provision should be the exception rather than the rule, its inclusion in a power of attorney may be useful in meeting particular objectives of the principal.”). 15. See, e.g., Klein v. Barrett, 427 S.C. 74, 90-91, 828 S.E.2d 773, 781-82 (Ct. App. 2019) (listing exclusive list of deviation factors and quoting regulatory directive that “[d]eviation from the guidelines should be the exception rather than the rule.”); In re marriage of Wilson, No. 52160-1-II, 2020 WL 2029378, at *8 (Wash. Ct. App. Apr. 28, 2020) (“Further, deviation ‘remains the exception to the rule and should be used only where it would be inequitable not to do so.’”) (quoting In re Marriage of Burch, 81 Wn. App. 756, 760, 916 P.2d 443, 445 (1996)); see also Lewis v. Hicks, 108 Nev. 1107, 1116, 843 P.2d 828, 834 (1992) (reversing and remanding where trial court granted deviation to payor parent due to new marriage and stating that “such a decision should be the exception rather than the rule.”). 16. New Guidelines at 4-5 § II.2. 17. Id. at 5 § II.2. 18. See Old Guidelines at § V(a) (“Relevant factors to be considered by the court in determining appropriate amounts of child support shall include ….”) (emphasis added); id. at § V(b) (“Additional factors may warrant adjustments to the child support obligations and shall include ….”) (emphasis added). 19. See New Guidelines at 3 § II.1. ■
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Practice Tips on the New Child Support Guidelines By Lauren White Hoover Q. As a general rule, are you seeing smaller awards of support under the new guidelines than under the old? A. The answer is most certainly yes where one of the parents is a high-income payor. The new guidelines provide a cap on child support (subject to deviation considerations) at a monthly gross income of $30,000.00 per month. Hypothetically, under old guidelines, payor parent has monthly net income of $20,000.00. For 1 child, this payor parent would be paying $2,941 for one child without consideration of the payee parent’s income. Under the new guideline, a payor parent with a $30,000 monthly gross income would be capped at $1952 and that figure is before allocating any responsibility from the payee parent. If there is no work-related childcare and minimal health insurance costs, then the payor parent is going to see a reduction in support. Q.Where there is joint custody and a substantial difference in income, is there an offset under the new guidelines? A. Section II of Admin. Order No. 10 as amended on July 1, 2020 “assume[s] that the payor parent has the minor child(dren) overnight in his or her residence less than 141 overnights per calendar year.” (emphasis added) 141 overnights is roughly 38.6% of the year. As we have seen in cases such as Cooper v. Kalkwarf and the language of 9-13101, joint custody does not require a precise 50/50. Since the guidelines are new, we do not yet have guidance from the appellate courts on the proper approach to handle joint custody. From our experience, we have seen courts in Central Arkansas offset the two amounts, divide the payor’s amount in half, or make no additional modification. Q. Where there is a traditional custody/ visitation arrangement, how is support allocated? A. The chart seems to spell out for joint and 24
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split child(ren) but not for standard. The chart presumes that time is shared with the payor parent having less than 141 overnights, but provides specifically in Section V.2. that the Court may consider the time spent by the child(ren) with the payor parent to deviate downward where there is joint or shared custody. Q. The guidelines reference that the payor is assumed to file taxes as a single person with one dependent. Does and/or how does the analysis change if the payor is married with several dependents? A. I have not had this issue come up, but we look to gross income and not taxable income and that is not a change.
Q. Does the standing case law on what is “income” still apply to the new chart? A. Yes, intentionally broad definition of income for child support purposes are included in Amended Admin 10, Section III. 2. Q. What do you predict will be the most litigated issues under the new chart? A. Until there is clarity on what should occur when there is joint custody, this issue will be litigated with the approach that you argue what benefits your client for that case until a general rule is developed in the case law or in local practice. Q. If a party has lost 20% income since the entry of an existing decree, will the reduction in support owed be ordered under the new or old system? What is the best way to get the previously nonpaying spouse’s income information in this scenario? A. New rules apply. Best practice is to immediately file a motion where there is a reduction in your client’s income because you will want any new amount ordered to be retroactive to the date the motion was
filed. In this scenario, I would propound discovery to obtain the payee parent’s income information. Q. How are bonuses being treated under the new guidelines? A. Unlike under the old guidelines, a payor would typically pay on his or her regular earnings and the courts would apportion a percentage of any additional net income from bonuses by the payor parent to the payee parent based on the number of dependents. Unless a bonus or other one-time payment is an outlier event for a parent, my experience to date is that these bonuses are included in the average of a person’s monthly gross income. Like most family law issues, the trial court has discretion to determine how variable income such as commissions, bonuses, overtime, military bonuses, and dividends will be treated including ordering a one-time support amount based on a percentage. Q. Do you have any helpful tips to offer? A. Collect the information on the cost of health insurance for the children and work-related childcare as those amounts are proportioned like the chart child support amount. This will impact the total amount paid from one parent to another. Income is imputed for underemployed parents, but understand in this COVID year that courts are being flexible with those parents who have experienced income loss due to this pandemic. ■ Lauren White Hoover is an attorney with Lacerra, Dickson, Hoover & Rogers PLLC in Little Rock.
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The National Football League’s Most Recent Collective Bargaining Agreement: Some Ins and Outs
By J. R. Carroll and Chris Turnage
T
Carroll
Turnage
J. R. Carroll is a partner at Kutak Rock LLP.1 Chris Turnage is a partner at The Law Offices of Travis Berry.2 J. R. and Chris are both licensed NFL agents. For more information on their unique bios please see the endnotes on page 29. 26
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his fall the average National Football Fan will see more scheduled football games—and potentially more parity among the teams (which is the ultimate goal of the NFL)— come playoff time. By parity we mean more teams with identical records and therefore more teams with the opportunity to make the playoffs going into the last few weeks of the regular season. More teams in the playoff hunt mean more TV markets will be interested in watching football late into the season. And the increased parity among teams will be due in large part to the ratification, in March 2020, of the latest iteration of the NFL Collective Bargaining Agreement (CBA). While most fans may not consider the behindthe-scenes deals and negotiations that get their favorite players onto the field after the coin toss, there is no doubt that this year’s season will be shaped by recent changes to the players’ CBA. The NFL prides itself on parity every year; parity is what makes the NFL the most popular sports league in America. For example, the San Francisco 49ers recently coined the phrase “from Mobile to Miami.” Here is what that phrase refers to. The Senior Bowl is the top all-star game for NFL draft hopefuls, and it is held annually in Mobile, Alabama. The coaching staffs for the North and South Senior Bowl teams are comprised of the complete coaching staff of two separate NFL teams. These two NFL teams are selected by taking the two teams that had the worst record the previous NFL year, unless the team hired a new coach, in which case that team is excluded from the requirement of coaching. To use the 49ers as an example, that team went from being near bottom of the NFL to almost the top team in less than 12 months. Very rarely do you see such a dramatic change in Major League Baseball or the National Basketball Association (save the occasional free-agency acquisitions that can lead to dramatically
“While most fans may not consider the behindthe-scenes deals and negotiations that get their favorite players onto the field after the coin toss, there is no doubt that this year’s season will be shaped by recent changes to the players’ CBA.”
different seasons quickly). But overnight successes are more likely in the NFL. This is one of the reasons why the NFL has such a loyal fan base: almost every team has a genuine chance at the start of the season to make the playoffs. Why is this possible? It is possible because of the NFL’s hard salary cap. In general, this means that a team’s total salary payments can’t go above a certain number. Additionally, the NFL has a salary floor, which means that teams have a minimum that they must pay their players or get fined up to that amount by the NFL. Very few sport organizations or leagues have a mandated salary floor. By squeezing the payroll down with a salary cap and pushing the payroll up with a mandatory salary floor the NFL helps create parity among the teams. As we mentioned at this article’s beginning, the NFL’s CBA is essentially a labor agreement between employees (via their union) and their employers. The “employees” happen to be professional football players represented by the National Football League Players Association (NFLPA) and the NFL team owners. As with other labor agreements, the NFL CBA is the result of negotiations between the players’ union and the owners, which are conducted through the league’s commissioner, to address operational matters, safety concerns, pensions, and benefits. In the case of professional football, however, collective bargaining also includes other features, such as mechanisms for players to bring injury grievances, draft and agree on player free-agency language, and
negotiate other terms like season length and active roster limitations. During the most recent negotiations, the main—some would say the only—“carrot” that the NFLPA and players had to offer to the team owners was a 17th game, an item that owners have desperately coveted. The players (just barely) felt like they received enough of what they wanted during the negotiations to include an additional game. The players agreed to the 2020 CBA, and a 17th game, by a vote of 1,019 to 959. The ink is not yet dry on the agreement, and there is already a movement, spearheaded by Eric Reid (a safety who is a free agent), for a revote. While many high-profile players were adamantly opposed to the new CBA, the reality is that almost 60% of the players in the league make the league minimum, and the new CBA provides a substantial increase in the league’s standard minimum salary. In addition to the minimum salary raise, the players received additional concessions from the owners—such as a different discipline system, essentially non-existent marijuana use requirements, a reduction in contact/practices, an increased percentage of total revenue, an increase in incentives, and a modification of the antiquated “funding rule.” With all this in mind, it is easier to see how the new CBA might better serve the players than prior agreements have. Some Terms of the 2020 CBA We will now touch on two main reasons why the CBA was accepted by the parties. First, as we just mentioned, 17 regular
season games will be played beginning in the 2021 season. Technically, the owners have an option to expand the 16-game season to 17 games; but rest assured the option will be exercised. The additional game is no small matter. For example, the injury rate in the NFL is 100%. If you play in the NFL, you will get injured. Not only is the game a very physical one, but each athlete tends to expose himself to the possibility of injury over many plays across a season. Simply put, the more one plays, the more wear and tear the body experiences. But collegiate football is not necessarily the same. If you are a Razorback fan (or follow some other collegiate football team) then you know that college football teams have up to 85 players on scholarship. Each player tends to (but not always does) play fewer games over any one season. In fact, up to 70 players may see action during a single game. In stark contrast, the NFL limits its teams to 46 players, though the league is now expanding the game-day roster from 46 to 48 players because of the 17-game option. Study an NFL sideline and you will see how few players remain there when either the team’s offense or defense is on the field. In other words, when compared to college teams, fewer NFL players are playing significantly more games each season (college teams normally play 12 games). Add to the additional game day the fact that the NFL will not be allowing an extra rest (or bye) week in the season; instead, it is reducing the number of preseason games from four to three. The fourth preseason week will now become a bye week. But the
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teams already had in place an unwritten rule that any high-value player did not play in the fourth preseason game. Thus, by removing the fourth preseason game in the new CBA, the NFL arguably provided no real benefit to the players. Smaller team rosters also mean that the length of the season has a significant impact on an organization’s ability to separate itself from the rest of the teams in the NFL. Every team has a bell curve of talent regarding their players, and throughout the season every team will lose one or more players to injury. This in turn means that each team will have fewer players who can separate the team from the rest of the league as the season wears on. That said, the attrition of talent that occurs within each team throughout the season also helps increase the parity among all the teams. This is so because, toward the end of the season, each game played will not necessarily be a game played by the best players on each team. The later games will be played by whatever players are left standing on each team. For example, in 2019, 413 players were hurt and placed on injured reserve. (This number will likely increase with the introduction of a 17th game.) And once a player is placed on injured reserve, there are only a limited number of instances in which he can play again that league year. A second major change that the 2020 CBA is expected to yield is that it removes the bye week for the team that is ranked second in the playoffs. Now, only the number one ranked team will receive a rest week during the first week of the playoffs. Consequently, only two teams in the NFL will get a week off during the first week of the playoffs instead of the traditional format of four teams. This addition of making the team with the second seed in the NFC and AFC divisions play an extra game also expands the teams that make the playoffs from 12 to 14 teams as the second seeded teams will need an opponent. This is a historically significant fact. Since 1975, a team that received a bye week in the playoffs went to the super bowl 71 times. All other teams, however, went to the super bowl only 17 times. And since 2013, every team that has made it to the super bowl has been a team that had a bye in the playoffs. Under the current CBA, only the top seeded team in each division will receive a bye. History tells us that these teams will most likely not have the luxury to rest 28
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their starters in the final weeks of the season and therefore increase the chance of getting a bye week in the playoffs. (All of you fantasy football players will not have to worry about a team resting its key players.) We have discussed two important consequences of the new CBA, but that is not all there is to it, of course. To help round out this overview, here is a summary of some other terms of the agreement between players and owners and how CBAs affect the National Football League’s play. 1. Increase in percentage of total revenue received. This deal could potentially increase the players’ share of total revenue from 47% to 48.5%. Each percentage point is worth approximately $150 million per year to the players. Therefore, this increase equates to billions of new dollars that revert to the players over time. The increase in revenue was a significant reason the players agreed to the 2020 CBA. 2. Increase in the league minimum salary. As previously mentioned, the new CBA increased the league’s minimum salary by almost $100,000. Although it goes without saying that the league’s minimum pay is much higher than the average worker’s, the average NFL career is also just longer than three years. And the bump in the league minimum will be felt by the players regardless of how long they have been in the league, not only by the rookie players. For example, the league minimum for a rookie will be $610,000; a player with three years of experience can expect $825,000; and a player with seven or more years of experience can expect a minimum pay of $1,050,000. The downside to these minimum standards is that they can pressure teams to overly favor a roster of younger players. A team can average almost $400,000 in savings per player by keeping a first-year player on its roster instead of a veteran, even if the veteran is a better player. In fact, more than 30% of the players on the opening day of the 2019 league year were undrafted. Presuming that teams are not uninformed when it comes to drafting players, one can see that teams keep in mind the need to maintain a workforce that is as inexpensive as possible considering the hard and unforgiving salary cap.
Consider the 2020 Super Bowl. In that game, the two best teams the NFL had to offer played each other, and 28 of 53 of the total players were undrafted. Due to the salary cap restraints each team must face, the NFL is an accounting puzzle with some football thrown in, not a game based on who can afford the best players. For example, in 2010, Sam Bradford, the first pick in the draft, signed a six-year deal worth $78 million, with $50 million guaranteed. Under the new 2011 CBA, Cam Newton, also a first pick in the draft, signed a five-year contract worth $36 million. A third example is Seattle Seahawk’s quarterback Russell Wilson. In 2014, the Seattle Seahawks had super bowl winner Russell Wilson making $662,434, his back-up quarterback Tarvaris Jackson (a former Razorback) making $1,250,000, and QB3 Terrelle Pryor making $705,000. So thanks to the new CBA, Russell Wilson, a Super-Bowl-winning quarterback, will be the third highest paid quarterback on his own team. The new CBA places a major restriction on rookie contracts and places Wilson’s rookie contract well below the fair market value of his services for three years. For example, in 2019 Patrick Mahomes, due to the rookie salary restrictions, made just under $2,000,000 for his services. After Mahomes completed his three-year rookie salary restriction, he was able to sign a 10-year deal with a maximum payout of $53,000,000. Consequently, there is a large advantage regarding salary cap purposes for teams who have a star player still under the rookie contract. 3. Funding rule change leads to more guaranties for players. A recent change in the funding rule is another key component for the players. Many fans clamor for guaranteed contracts for players and often ask why the NFL’s contracts are not guaranteed. During negotiations between agents and management, the clubs often use “the funding rule” as an excuse as to why they cannot fully guaranty a deal. The funding rule was put in place in the early years of the NFL, and it requires owners to put on deposit with the League 100% of the amount of any guaranteed contracts. At the time, this was to ensure the owners had the money and didn’t leave the players emptyhanded later. Times have certainly changed, however, because the 32 NFL owners are
some of the richest people in America. The new CBA will ultimately allow for a $17 million exclusion—meaning a contract can be guaranteed up to $17 million without the owner having to put more money on deposit with the league. This will allow for more guaranteed contracts for the players because the owners will not have to take money from their investments and put on deposit with the league. 4. The players will now receive better incentives. This was achieved using a performance-based pay pool, which helps alleviate some of the inequities in rookies’ salary contracts. Simply put, there is a pool of money from which bonuses are paid based on a formula that compares how many snaps a player played compared to his current salary. An example helps make the point. As a rookie, Dre Greenlaw, who is an outside linebacker and plays for the San Francisco 49ers, made $495,000, as do all first-year players. Ultimate first-year pay is differentiated only by signing bonuses. More to the point, because Greenlaw played so many downs for the 49ers during the 2019 season, his player performance bonus was $339,981. You can see the importance of this pool, and the influence that an expanded pool of money is for many players. 5. Non-monetary benefits were received, too. Some of these include concessions by the ownership in the form of discipline, drug testing, and off-season practices. Pursuant to the 2011 CBA, NFL Commissioner Roger Goodell was the judge, jury, and appellate court regarding fines and discipline. Consequently, some players received punishments that many have strongly questioned. For example, numerous players have been fined more than $7,000 because their NFL-issued socks were worn too high or because an undershirt hung below their jersey. You also have the issue of fines during preseason games in which the fine would easily exceed the player’s pay for playing in the game. A player may receive approximately $2,500 for a preseason game, but get fined $20,000 during the same game, which means that after taxes the player is likely to lose $19,000 for playing a game. As for fines that occur due to actions on the field, Deatrich Wise, a former Razorback, was fined $38,000 for a late hit on Cowboy
quarterback Dak Prescott. This fine was appealed, and Wise eventually had to pay $9,000. All the above-mentioned fines were during the old CBA, and Goodell had full control over the fines including the appeal process. Under the new CBA, however, Goodell does not have complete control over the disciplinary process, so fines will likely begin at a much lower amount. Regarding changes in the NFL drug policy, the major difference between the current CBA and those of years past is the NFL’s position regarding marijuana. In December 2019, Major League Baseball removed marijuana from its bannedsubstance list, and marijuana is now treated by MLB in the same category as alcohol use by its players. As for the NFL, it has increased the threshold for a positive test from 35 nanograms to 150 nanograms of THC. But the two biggest changes in the 2020 CBA regarding marijuana use is that a positive test will not result in a suspension—and the testing period will only be during a stated and known twoweek window for the entire year. Lastly, there will be additional concessions regarding practices for the players. Here, the NFL has agreed to limit Organized Training Activities from 14 days to 10. Also, the number of training camp practices that will be conducted in full pads will be reduced from 28 practices to 16, with no more than three in a row. This will help reduce the physical stress that the athletes must bear during preseason. Furthermore, no practice can last more than two-and-a-half hours; if there are multiple practices in a single day, then the total practice time cannot exceed seven hours. Finally, players are no longer allowed to be at the team facility longer than 12 hours a day. Conclusion Time will tell whether the players or the owners “won” the negotiations that spawned the new CBA. Although the 32 billionaire owners have some obvious advantages over the players, the current CBA is more favorable to players than some prior CBAs have been, especially for those players who will have short careers. The average NFL career is just under three-and-a-half years. The current agreement also better accounts for the unavoidable physical risks associated with the contact sport. One thing that all
fans can surely rejoice in is that, for the next decade, professional football will be played with no fear of strikes or lockouts. Endnotes: 1. J. R. has been a licensed NFL agent since 2011 and has represented a player drafted in the NFL almost every year since. In 2018, J.R. represented a player who was drafted in the first round. The list of Razorbacks represented by J. R. include: Ryan Mallett, Jarius Wright, Cobi Hamilton, Travis Swanson, Jonathan Williams, Frank Ragnow, Hjalte Froholdt, and Dre Greenlaw. J.R has been named to The Best Lawyers in America© list by US News for the years 2017 through 2021. Given J. R.’s background in accounting he focuses on complex commercial litigation at Kutak Rock LLP. Since 2013, J. R. has been an adjunct professor at the University of Arkansas School of Law teaching Sports Law. 2. Chris Turnage has been a licensed NFL agent since 2008. Chris founded Comprehensive Sports Management which has evolved into the trade name of United Athlete Sports and he operates out of Hot Springs. UA Sports is a full service agency and currently represents approximately 25 professional football athletes and eight coaches. Chris has negotiated millions of dollars in contracts and endorsements and collectively has represented a player drafted in every round of the draft and also represents an NFL Hall of Famer. UA Sports has negotiated two contracts which made those players the highest paid in the NFL at their positions. In addition to working as an agent, Chris also practices law, specializing in contracts, civil litigation, and complex family and criminal law matters. For his law practice, Chris recently merged his practice with the Law Offices of Travis Berry with offices in Conway, Arkadelphia, and Hot Springs. ■
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YOUNG LAWYERS SECTION REPORT BY CHRIS HUSSEIN, YLS CHAIR
Young Lawyers Section
While the start to the 2020-2021 Bar Year has not been normal by any means the Young Lawyers Section has been working hard to find ways to make an impact even when we can’t be somewhere in person. These efforts started this past summer with the Estate Planning Clinic that we sponsored with Legal Aid of Arkansas, as well as another Advanced Directive Clinic for education workers that we sponsored with the Center for Arkansas Legal Services. On October 9, 2020, the Young Lawyers Section had the opportunity to cosponsor a Record Sealing Clinic with Legal Aid of Arkansas, Inc. Record sealing is such an important thing for so many people across our state. Because their records are now sealed, those who were helped have easier access to housing as well as employment. Through this clinic we provided 136 different documents to 30 clients. With the record sealing clinic completed we moved on to our next project. Chair-Elect Payton Bentley, who is also our Wills For Heroes Chair this year, is diligently working on putting together a special Wills for Heroes event for the Pea Ridge Police Department. This event will be similar to the Wills for Heroes events we have had in the past except we expect this one to be fully virtual. If you would like to assist in this clinic please feel free to reach out to me at chussein@arlegalaid.org. We are always looking for more ways to engage our members and are plan to host a few virtual networking and social gatherings. We held our first one of this bar year on October 21. Our wonderful District A Representative, Alexandra Chunn, put together a wonderful trivia experience for the Section. We look forward to hosting more events like this and hope to get more YLS involvement! If anyone has any ideas for service or social events please bring them to us. Chris Hussein, YLS Chair
YLS Nominating Petitions are due March 31, 2021, for these positions: 1. Chair-Elect 2. Secretary-Treasurer 3. At-Large Representative 4. District A Representative (Northwest Arkansas)
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5. District B Representative (Pulaski County) 6. District C Representative (Everywhere Else)
www.arkbar.com
YLS Trivia Night
Zac Atwood: Our family (wife Mary and daughter Ella) has tried to do more outdoor activities such as hikes and long walks, but we have yet to return to any form of normalcy. While the pandemic is a horrible event that has impacted us all, I am grateful for the additional time that I have been given with my daughter. It is time that I would have never gotten otherwise. We all must try to see whatever good there is that has come from such a terrible thing.
Caroline Kelley: 1. Louis Kelley sporting his jawsome Baby Shark costume for Halloween. 2. UofA School of Law classmates Kelsey Boggan, Caroline Kelley, Samantha Vital, and Anna Catherine Cargile celebrating a birthday at TopGolf in Rogers, AR. Samantha Vital scored her age … 28. For more photos go to www.arkbar.com/arkbaryls/home. Send your photo to be inlcuded to Anna at ahubbard@arkbar.com.
YLS members share their experiences during COVID David Bingham and his wife Katie welcomed their daughter, Elizabeth Maeve Bingham, to the world on August 13, 2020. Baby is well and parents are thrilled—both true even in the midst of COVID! Photo credit Kati Mallory
Leslie Copeland is enjoying her new mediation practice via Zoom.
Andrew Norwood My wife took this picture of me–without me knowing –during a Zoom hearing break, in which my client was awarded $400,000 in compensatory damages and $100,000 in punitive damages.
Johannah Walker: When COVID-19 first hit, I was serving as a judicial law clerk in California. I spent much of the first few months of the pandemic exploring the coast of Northern California with my partner. I moved across the country (no small feat during a pandemic!) to start a judicial clerkship on the U.S. Court of Appeals for the Fourth Circuit. My family came out to VA to help me set up my new apartment. Attorneys Justin Harper and Ledly Jennings took up running during quarantine and recently completed a half marathon together.
Ethan Ellis: My daughter, Madilyn Claire Ellis, was born in June this year. Because of COVID restrictions my wife, Allison, and I swapped in and out to visit her while she was in the NICU for almost a month. Now that we have Madilyn home and healthy, I have been able to jump back in to exciting commercial litigation cases. Zoom meetings and hearings have become everyday occurrences to keep cases moving forward. I’m grateful my firm has remained open and provided in-person mentoring and guidance for my first year practicing, and for their flexibility and understanding while taking care of my family.
Jennings is pictured in the black cap.
Presley Nicole Engle: I’m thankful that God led me back to my hometown of Paris, AR, where I work in general practice at Johnson Law firm under Mark J. Johnson. I’m so excited to be gaining knowledge in so many areas of the law, and I’m looking forward to building my legal career.
Nicole Winters: I have continued exploring the Natural State. The photo on the left is taken at Lorance Creek Natural Area. I have also continued to be involved with with various young professional philanthropy boards. The photo on the right is from the Peacekeeper’s Cocktails for a Cause virtual event supporting Women & Children First during Domestic Violence Awareness Month.
Alexandra T. Chunn and Benjamin C. Benton exchanged vows in an intimate ceremony surrounded by immediate family members on October 24, 2020.
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Vol. 53, No. 4, Fall 2018 online at www.arkbar.com
Tribute to Members Who Have Served in the U.S. Armed Forces
Contact the Arkansas Bar Association if you have article ideas for The Arkansas Lawyer magazine. For more information on the submission process, go to www.arkbar.com Questions? 501-801-5680 or ahubbard@arkbar.com
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Members who have served in the military This list of Arkansas Bar Association members who have served and continue to serve in the United States military is published to honor and remember their service. A full list with more detail on each member’s service can be found online at www.arkbar.com/for-attorneys/ publications/the-arkansas-lawyer. The list was compiled from members’ contributions and is not inclusive. If you know of someone who should be included in future publications, please contact the editor. Overton Anderson Philip S. Anderson James A. Badami Frank Bailey Judge Harry Barnes Marilyn Dearien Barton Fines F. Batchelor, Jr. Jonathan W. Beck Joe Benson Ed Bethune Allen W. Bird II Sam N. Bird Judge Denzil Keith Blackman Charles A. Brown Major Natalie G. Brown LeAnne Pittman Burch William Jackson Butt, II James A. Buttry Worth Camp Jennifer Carlisle John Phillip Carroll Mark B. Chadick John S. “Jack” Cherry Randall B. “Randy” Clark Nathan Coulter Judge Gerald K. Crow F. Thomas “Tom” Curry Jerry Dodd Bob Estes Peter G. Estes, Jr. John C. Everett Oscar Fendler David Gibbons Sam Gibson Martin G. Gilbert John P. Gill Morton Gitelman Paul Leo Giuffre James C. Graves Ron Griggs Judge Wayne Gruber Will Gruber Thomas P. Guarino Judge David F. Guthrie Don F. Hamilton Stuart W. Hankins Judge Eugene S. “Kayo” Harris Dave Wisdom Harrod 36
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Dick Hatfield William D. Haught Robert L. “Skip” Henry Donald C. Hill Randal Hobbs James W. Hyden Greg S. James C. Cole Jeffries, Jr. Edward P. Jones Glenn W. Jones Robert L. Jones, Jr. Dak Kees Tim Leathers John C. Lessel Fletcher C. Lewis Stark Ligon Chester C. Lowe, Jr. William A. Martin Phillip A. McGough Joseph P. McKay James H. McKenzie Philip McMath James McMenis Chancery Judge Andy McNeil Henry N. Means, III James W. Moore George B. Morton Lee Muldrow J. R. Nash Edward Nelson Frank B. Newell Jim Nickels Richard C. Ourand, Jr. Hugh Overholt William L. Owen Eudox Patterson Walter Paulson Leon Francis Pesek, Sr. Ellis Lamar Pettus David Dero Phillips George E. Pike, Jr. George Plastiras David M. Powell Donald E. Prevallet Brian D. Rabal Gordon S. Rather, Jr. Richard A. Reid Byron Cole Rhodes
Andy Rittenhouse George Ritter Allen P. Roberts William S. Robinson Adam Rose James (Jim) A. Ross, Jr. Herb Rule Judge David L. Rush Thomas S. Russell Marissa A. Savells Eugene L. Schieffler Corey Seats Robert Luther Shults, Jr. Dennis Shackleford John Cecil Shane William F. Sherman Brenda Simpson Damon C. Singleton Berl S. Smith, Jr. James E. Smith, Jr. Richard S. Smith Scott E. Smith Thomas Streetman William R. Stringfellow Judge John F. Stroud, Jr. Paul Suskie William L. Terry Marvin Dell Thaxton Sr. Corey E. Thomas F. Mattison Thomas III Lonnie C. Turner Richard E. Ulmer Fred Ursery Judge Rice VanAusdall Magistrate Judge Joe Volpe Captain George Christopher Walthall Stan L. Warrick Edward Ward Todd C. Watson Richard N. Watts Wayne Williams Judge Billy Roy Wilson Philip M. Wilson COL Jeffery D. Wood Daniel H. Woods Judge Wm. Randal Wright Steven S. Zega
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Moore
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Watson
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Watts
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Williams
www.arkbar.com
The Arkansas Judicial Council Wood Fort Wilson SmithP.in October for their annual fall meeting. New officers for the 2007-2008 terms are: Hon. Rice Van Ausdall-Pres.,
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We are the 22
Arkansas nonprofit founded by Arkansas veterans focuses on direct veteran suicide intervention
As we continue to live with the daily effects of the COVID19 Pandemic, another epidemic has been aggressively building a body count in America over the last two decades with no flattening of the curve in sight. Indeed, a recent CDC study revealed that the national suicide rate increased by more than 30% in more than half of the U.S. states from 1999 to 2016. On average, 93 Americans lose their life to suicide every day; in 2018, suicide was the leading cause of violent death in Arkansas, taking the lives of 547 of our neighbors, our family members, and our friends. This suicide epidemic, blind as to whom it affects, continues to rage nationally and locally and is striking one of our most valued and respected communities the hardest—veterans of our armed forces. ArkBar Ad - Half Page.pdf 1 8/17/20 Since 2010, it is estimated that 22 veterans
die because of suicide every day. Whether it is the experience of war, substance abuse, PTSD, or other mental health or physical factors, the suicide rate among our veterans is significantly higher than the non-veteran population. The fact that so many of our service members have given so much to our country to then come home and be forgotten was simply unacceptable to me, even though I am not a veteran myself. That is why I began volunteering with We Are The 22 (“WAT 22”). WAT 22 is a local 501(c)(3) nonprofit organization founded by Arkansas veterans to assist other Arkansas veterans in likely their darkest of times and most desperate hour of need. WAT 22’s specific mission is to combat the veteran suicide epidemic with direct evidence and peer-based suicide intervention in coordination with the Department of Veterans Affairs. Unlike other organizations, when WAT 22 is 3:35 PM notified of a veteran in crisis, our Veteran
Suicide Response teams are on standby 24 hours a day and ready to drop everything to respond to the veteran immediately. Saving that veteran’s life is and will always be the primary goal of our organization. If you would like to join our fight to end the veteran suicide epidemic in Arkansas, you may volunteer or donate at wearethe22. org. Please do not forget to follow us on Facebook to stay up to date on all of WAT 22’s latest news and events at https://www. facebook.com/wearethe22/. By Joseph W. Price II, a member at Quattlebaum, Grooms & Tull PLLC who serves on the Board of Directors of WAT 22.
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Vol. 55 No. 4/Fall 2020 The Arkansas Lawyer
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Landex Research, Inc.
The Arkansas Bar Association is your advocate at the State Capitol.
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The New Normal: Virtual Justice in a Post-COVID-19 World By Amy Dunn Johnson
2020 will undoubtedly go down in history as a year of profound disruption. For the first time in a century, we reckoned with a deadly worldwide pandemic that would fundamentally upend everything we once considered normal. Despite the enormity of the harm that the pandemic has caused, it has also forced rapid change in how we function as a society. Some of these changes are undeniably positive: adaptations that our legal system is making in response to this crisis represent a likely tipping point that will improve the efficiency, speed, and affordability with which justice is dispensed. The legal system was already headed for transformation in the 1990s with the widespread adoption of online legal research and email.1 The expense of legal representation and the ubiquity of the internet, social media, and “DIY culture” have hastened the pressure for change within the legal system.2 As a profession, however, we have been slow to adapt such that it is the exception—rather than the rule—that individuals with civil legal problems turn to the court system or even lawyers for solutions.3 For nearly two decades, Access to Justice Commissions around the country, including the Arkansas Commission, have urged courts and lawyers to embrace technology and other innovations to ensure that everyone with a civil legal problem is able to receive some form of effective assistance. Still, the pace of change has remained slow.4 COVID-19, however, has prompted swift adaptation. On March 17, the Arkansas Supreme Court suspended most in-person hearings, urging courts to use “all available technologies” to continue court business.5 By the end of the month, many judges were holding video hearings using Zoom. Remote notarization and witnessing were temporarily authorized by Executive Order,6 and a number of courts requested and received expedited e-filing capability. As the pandemic has worn on, many judges across the state have fully embraced Zoom 42
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as an effective tool for conducting hearings and bench trials, with features that allow for easy presentation of evidence, the exclusion of witnesses when the Rule is invoked, the use of “rooms” for counsel to privately confer with their clients, and “channels” where participants only hear the proceedings in their preferred language. The time and expense involved in traveling long distances for attorneys, parties, witnesses, and translators is no longer a factor when proceedings can be conducted using Zoom. Several Arkansas courts have also taken creative approaches to ensure that litigants who lack internet access or a device with sufficient minutes, data, or capability can still participate. At least one court provides wireless internet that is accessible from its parking lot, and several others allow litigants to come into the court building and use a court-issued device to participate from a private area outside the courtroom. When our legal system does resume regular operations, these adaptations will become a feature of the new “normal.” Many judges will continue to conduct Zoom hearings for routine matters. Legislation to permanently authorize remote notarization and witnessing is under development, and the Arkansas Access to Justice Commission is studying alternatives to traditional means of service. Looming case backlogs will prompt courts to more efficiently triage and dispose of cases, and more jurisdictions will be motivated to convert to e-filing. Still, challenges remain. The complexities involved in conducting full jury trials may well be beyond what Zoom can effectively support. Broadband internet access is unavailable in many areas of the state.7 Consistent, public information about changes in court operations during the pandemic is largely lacking. These advancements hold great promise to bring efficiencies and cost-savings to a system that is notoriously expensive and difficult to navigate. As we reflect on how best
to harness the opportunities presented in the wake of COVID-19, it is incumbent on us to ensure that these advancements increase the public awareness of how our courts work and everyone’s ability to access them. Endnotes: 1. Richard Susskind, The End of Lawyers (2010). 2. See John M. Greacen, Amy Dunn Johnson and Vincent Morris, From Market Failure to 100% Access: Toward a Civil Justice Continuum, 37 U. Ark. Little Rock L. Rev. 551, 552 (2015); see also Pew Charitable Trusts, Coronavirus Accelerates Court Modernization Efforts, at https:// www.pewtrusts.org/en/research-and-analysis/ articles/2020/06/18/coronavirus-acceleratesstate-court-modernization-efforts. 3. Rebecca Sandefur, Access to What?, Daedalus (Winter 2019) at 49. 4. For a list of the Arkansas Access to Justice Commission’s accomplishments, see https:// arkansasjustice.org/our-work/accomplishments/. 5. In re Response to the COVID-19 Pandemic (March 17, 2020), https://www. arcourts.gov/sites/default/files/articles/ COVID-19-PC.pdf. 6. Arkansas Executive Order No. 20-12 (Mar. 31, 2020), https://governor.arkansas. gov/our-office/executive-orders/. 7. Internet Access in Arkansas: Quick Stats, at https://broadbandnow.com/Arkansas (last visited May 5, 2020).
Amy Dunn Johnson is the Executive Director of the Arkansas Access to Justice Commission and Foundation.
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Thank you to the speakers, attendees, and everyone who participated in making the inaugural Wilson Law Group CLE Program a success! Here is some of the positive feedback we've received from program attendees: "I wanted to congratulate you for offering THE BEST CLE that I have ever attended. It was informative and entertaining." "Thank you for putting together the CLE this week. I really enjoyed it." "Very good program, very informative!" All proceeds from this year's program were donated to the Arkansas Bar Association to support their mission. The Wilson Law Group 400 W. Capitol Ave. Ste. 1400 Little Rock, AR 72201 Main: (501) 219-9388 www.TheWilsonLawFirm.com info@TheWilsonLawFirm.com
FORENSIC PSYCHIATRY The Arkansas Bar Association thanks the Wilson Law Group for donating proceeds from the Inaugural Wilson Law Group CLE Program in October.
GERALD S. STEIN, M.D. Phone: 479-244-0277 FAX: 970-987-5100 e-mail:gsteinmd@gmail.com See CV: www.geraldsteinmd.com Office Manager Rebecca Stein 479-244-5060
645 CR 235, Eureka Springs, AR 72632 Vol. 55 No. 4/Fall 2020 The Arkansas Lawyer
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ARKANSAS CHAPTER
The following attorneys are recognized in 2019 for
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Jim Tilley (501) 372-1406
Dewey Watson (501) 804-4131
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Attorney Disciplinary Actions Final actions from July 1 – September 30, 2020, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online either at http://www.arcourts.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] SURRENDER: Kubicek, C. James, ABN 73070 of Conway. On September 10, 2020, in No. D-20-493, the Supreme Court of Arkansas granted Kubicek’s Petition to Surrender his law license. Kubicek acknowledged that issues existed relating to his IOLTA trust account over a period of years and that he could not accurately account for all funds, including approximately $114,000 from former client George Thomas, now deceased and who was in the ADC at the time the funds were transferred to Kubicek. Kubicek acknowledged that the evidence could likely be construed as supporting violations of Rules 1.15, 8.4(b), and 8.4(c). Petersen, Paul D., ABN 2015249 of Mesa, Arizona, in No. D-20-494 petitioned the Arkansas Supreme Court for surrender of his Arkansas law license, which was granted and ordered September 10, 2020. Petersen was licensed to practice law in Arizona, Utah, and Arkansas. He engaged in adoptions involving Marshallese Island birthmothers whose children were placed for adoption in these three states. In 2019 felony charges were filed in state court in Arizona and Utah and federal court in Arkansas related to his adoptions. He has entered guilty pleas in all three states in 2020, and awaits sentencing in Arkansas in USDC No. 19-cr-50079 (Western District of Arkansas), where he was charged with four counts of transporting pregnant resident Marshallese Island birthmothers in 20142015 to the United States for the purpose of here adopting out their children when born, in criminal violation of the Compact between the Republic of the Marshall Islands and the USA. Petersen has been on interim suspension in Arkansas since late October 2019, after news of his indictment became public.
Smith, Joseph Blake, ABN 2011071 of Little Rock, in No. D-20-412 petitioned the Arkansas Supreme Court for surrender of his Arkansas law license, which was granted and ordered July 23, 2020. Smith was involved in the oil and gas leasing business through several business entities, as set out in lawsuits in Pulaski County Circuit Court 60cv-18-6688 and 60cv-19-608, the “Bold Energy” cases. Smith invoked his Fifth Amendment right to not be deposed or to testify in an arbitration proceeding, which led to an agreement that a $7,000,000 arbitration award and judgment was entered against him in May 2019 and he placed $1,500,000 in a settlement escrow account for the benefit of third persons and parties, including plaintiffs in Bold Energy I. Smith acknowledged his conduct could be found to violate Rules 8.4(b) (criminal conduct) and 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). SUSPENSION–FULLY STAYED, with PROBATION: Hutchinson, William Asa, III, ABN 2001115 of Bentonville, by Consent Findings & Order filed July 20, 2020, in No. CPC 2019-039 agreed to a fullystayed indefinite license suspension with 24 months’ probation, starting as of December 2018, under the supervision of a lawyer he selected for violation of Rule 8.4(b), engaging in criminal conduct. This is the same sanction imposed upon him in Missouri in December 2018, where he is also licensed. In May 2016 Hutchinson was arrested in Alabama and charged with felony possession of a controlled substance. He tendered a plea, completed conditions of deferred adjudication, and in August 2018 the charge was nolle prossed without entry of a judgment.
1. Publication Title
Statement of Ownership, Management, and Circulation (All Periodicals Publications Except Requester Publications) 2. Publication Number
The Arkansas Lawyer
0
4. Issue Frequency
5
4
6
_
3. Filing Date
0
4 0
5. Number of Issues Published Annually
Quarterly
10-08-20
$5
2224 Cottondale Lane, Little Rock, AR 72202
501-375-4606
2224 Cottondale Lane, Little Rock, AR 72202
Editor (Name and complete mailing address)
2224 Cottondale Lane, Little Rock, AR 72202
Managing Editor (Name and complete mailing address)
Same 10. Owner (Do not leave blank. If the publication is owned by a corporation, give the name and address of the corporation immediately followed by the names and addresses of all stockholders owning or holding 1 percent or more of the total amount of stock. If not owned by a corporation, give the names and addresses of the individual owners. If owned by a partnership or other unincorporated firm, give its name and address as well as those of each individual owner. If the publication is published by a nonprofit organization, give its name and address.) Full Name Complete Mailing Address
2224 Cottondale Lane, Little Rock, AR 72202
11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or None Other Securities. If none, check box Full Name
16. Electronic Copy Circulation
Average No. Copies No. Copies of Single Each Issue During Issue Published Preceding 12 Months Nearest to Filing Date
18,750
a. Total Number of Copies (Net press run) (1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541 (Include paid distribution above nominal rate, advertiser’s proof copies, and exchange copies) b. Paid Circulation (By Mail and Outside the Mail)
5025
916
2948
(2)
Mailed In-County Paid Subscriptions Stated on PS Form 3541 (Include paid distribution above nominal rate, advertiser’s proof copies, and exchange copies)
618
1967
(3)
Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS®
0
(4)
Paid Distribution by Other Classes of Mail Through the USPS (e.g., First-Class Mail®)
0
0 0
c. Total Paid Distribution [Sum of 15b (1), (2), (3), and (4)]
1534
4915
d. Free or (1) Free or Nominal Rate Outside-County Copies included on PS Form 3541 Nominal Rate Distribution (2) Free or Nominal Rate In-County Copies Included on PS Form 3541 (By Mail and Free or Nominal Rate Copies Mailed at Other Classes Through the USPS Outside (3) (e.g., First-Class Mail) the Mail)
0
0
0
0
0
0
0
0
e. Total Free or Nominal Rate Distribution (Sum of 15d (1), (2), (3) and (4))
(4)
Statement of Ownership, Management, and Circulation (All Periodicals Publications Except Requester Publications)
14. Issue Date for Circulation Data Below
The Arkansas Lawyer 15. Extent and Nature of Circulation
Telephone (Include area code)
Same
Arkansas Bar Association
Potter, Joshua L., ABN 2011143 of Texarkana, in No. CPC 2020-015, by Consent Findings and Order filed September 18, 2020, was Cautioned for his violations of Rules 1.3, 1.4(a)(3), 1.4(a)(4), and 8.4(d) and was assessed costs of $50.00. Potter represented defendant Antwon Wheaton as private counsel in Miller County. A jury convicted Wheaton and sentenced him to 144 months in ADC. Potter filed a Motion for New Trial and sent Wheaton a letter asking whether Wheaton wished to appeal from the jury trial conviction. In response, Wheaton sent Potter a handwritten letter in which he stated he did wish to appeal. Potter failed to file a Notice of Appeal on behalf of Wheaton. Wheaton filed a pro se Notice of Appeal. Potter filed a Motion to Withdraw and to Appoint Appellate Counsel. In the Motion, Potter acknowledged that he assumed Wheaton did not wish to appeal, but he later learned that Wheaton did wish to appeal and had timely sent Potter a letter so stating.
13. Publication Title
Anna Hubbard
9. Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor (Do not leave blank) Publisher (Name and complete mailing address)
Arkansas Bar Association
CAUTION:
Contact Person
8. Complete Mailing Address of Headquarters or General Business Office of Publisher (Not printer)
Anna Hubbard
Morehead, David F., ABN 89143 of Pine Bluff, by Findings and Order filed August 24, 2020, in No. CPC 2020-004, was Reprimanded for his violations of Rules 1.3, 1.4(a)(3), and 8.4(d), ordered to pay a fine of $500.00, and assessed costs of $50.00. Morehead filed a Chapter 13 Bankruptcy for Talesha Callaway, but Morehead did not file a modification of Callaway’s plan despite the court ordering it to be done. The Court entered an Order of Dismissal for Failure to Modify, and Morehead did not inform Callaway that her bankruptcy case had been dismissed. Callaway retained a new attorney, who filed a Motion to Reopen Case which was granted.
6. Annual Subscription Price
4
7. Complete Mailing Address of Known Office of Publication (Not printer) (Street, city, county, state, and ZIP+4 ®)
REPRIMAND:
Free or Nominal Rate Distribution Outside the Mail (Carriers or other means)
0
0
f. Total Distribution (Sum of 15c and 15e)
1534
4915
g. Copies not Distributed (See Instructions to Publishers #4 (page #3))
80
110
h. Total (Sum of 15f and g)
1614
5025
i. Percent Paid (15c divided by 15f times 100)
100
100
Average No. Copies Each Issue During Preceding 12 Months
No. Copies of Single Issue Published Nearest to Filing Date
0
0
b. Total Paid Print Copies (Line 15c) + Paid Electronic Copies (Line 16a)
1534
0
c. Total Print Distribution (Line 15f) + Paid Electronic Copies (Line 16a)
1534
0
d. Percent Paid (Both Print & Electronic Copies) (16b divided by 16c Í 100)
100
100
a. Paid Electronic Copies
I certify that 50% of all my distributed copies (electronic and print) are paid above a nominal price. 17. Publication of Statement of Ownership X If the publication is a general publication, publication of this statement is required. Will be printed
Publication not required.
November 2020 in the ________________________ issue of this publication. 18. Signature and Title of Editor, Publisher, Business Manager, or Owner
Date 10-08-20
I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).
* If you are claiming electronic copies, go to line 16 on page 3. If you are not claiming electronic copies, skip to line 17 on page 3.
Complete Mailing Address
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Vol. 55 No. 4/Fall 2020 The Arkansas Lawyer
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Arkansas Bar Foundation 2224 Cottondale Lane, Little Rock, Arkansas 72202 www.arkansasbarfoundation.com • 501.801.5670
HOWLIN’ HOUR SPONSORS STAR PRESENTING SPONSOR
Memorials and Honoraria PRESENTING SPONSORS The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period August 1, 2020, through October 31, 2020. In Memory of Herbert A. Bacon Hayden and Gordon S. Rather, Jr. In Memory of Annie Louise Baxter Judge Bill Wilson and Judge Cathi Compton In Memory of Leo Bearman, Jr. Don Eilbott and Gerry Eilbott Soltz In Memory of Tim Boe Don A. Eilbott Cathy and Michael R. Mayton David M. Powell Paula and Stephen Sharum In Memory of Edward Wayne Boyce, Jr. Judy and Glenn Vasser In Memory of Walter Barry Cox Barrett Deacon Paula and Stephen Sharum In Memory of L. D. Gibson Michael R. Gott
In Memory of John Marshall Shackleford Judy and Glenn Vasser
In Memory of Justice Bradley D. Jesson Justice David Newbern In Memory of Peggy Manar Don Eilbott and Gerry Eilbott Soltz In Memory of Bobby Odom Barrett Deacon Paula and Stephen Sharum Fred Ursery In Memory of Claibourne W. Patty, Jr. Justice David Newbern
Craighead County Bar Association Judge Cindy G. and Chris R. Thyer
In Memory of Tom Streetman Justice David Newbern In Memory of Jack Vardaman Judge Bill Wilson and Judge Cathi Compton
A new memorial medallion has been included on the Arkansas Bar Center Memorial Wall and we thank the donors for contributing to this lasting tribute. In Memory of Myron Timothy Boe Given by: Rose Law Firm The Salmon Family
VIP SPONSORS
Nancy and Judge John Fogleman Greene County Bar Association Mayton, Newkirk & Jones
Perkins Law Firm Snellgrove Langley Culpepper Williams & Mullally Law Office of Danyelle Walker, PLLC
In Memory of David K. Harp Judge Robert Dawson Paula and Stephen Sharum In Memory of William “Tom” Harper Judge Robert Dawson Paula and Stephen Sharum
Centennial Bank
Wilcox Law Firm
Dennis Zolper
Edward Boyce - Jim McLarty, Jr. Tim Watson, Sr. Due to the current pandemic, the Arkansas Bar Foundation will not be hosting its Mid-Year Scholarship dinner this bar year (winter of 2021).
PARTNER SPONSORS Arkansas Chapter
Bristow & Richardson PLLC Laura and John Foster
The Foundation is grateful to these sponsors of our Fourth Annual Friendraiser, Howlin’ Hour, originally scheduled for October 14 on the ASU campus in Jonesboro. This event has been postponed to October 2021 at the same location. Thank you for your support!
Lacy Law Firm Jeffrey and Lester McKinley Roscopf & Roscopf, P.A. Scholtens & Averitt Benton Smith Law Firm
FRIEND SPONSORS Parker Hurst & Burnett PLC Warren Dupwe
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The Arkansas Lawyer
www.arkbar.com
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in memoriam Walter Barry Cox of Fayetteville died September 12, 2020, at the age of 79. Over the course of his 54-year career, Walter tried and won more than an estimated 300 cases to juries in both state and federal courtrooms across the state. The Arkansas Bar Foundation and the Arkansas Bar Association honored him with the Outstanding Lawyer Award in 2012 in recognition of excellence in the practice of law and outstanding contributions to the profession. Walter obtained a dual B.S. and Juris Doctorate degree from the University of Arkansas in 1966. He was a past president of the Washington County Bar Association. Walter began his legal career in 1966 with the Fayetteville firm of Putman, Davis and Bassett where he made partner in 1970. The firm was later known as Davis, Cox & Wright. After 34 years of practice in that firm, Walter established the firm of Cox, Cox & Estes, PLLC. Daniel "Danny" Richard Elrod of Siloam Springs died on August 4, 2020, at the age of 64. He attended the University of Arkansas, where he earned his Juris Doctorate in Law. Danny practiced law for 40 years in Siloam Springs at Elrod Law Firm. David K. Harp of Fort Smith died on September 7, 2020, at the age 71. David served as a captain in the U.S. Army and graduated from Henderson State University in Arkadelphia and from the University of Arkansas School of Law. After law school, he became the corporate counsel for a government contractor in North Carolina, which his wife says stretched his ethics so he came home to Arkansas and performed legal aid for many years; his wife said that was his penance for performing corporate work. For the last 30 years, he worked as an attorney in
Fort Smith alongside his loving work family at Walker & Harp. P.L.L.C.
G. Michael Millar of Searcy died August 31, 2021, at the age of 69. For him, being an attorney was more than a vocation; it was an animating force. Mike was a graduate of Little Rock Hall High School, Hendrix College and the UA Little Rock School of Law. He practiced law in Searcy for 43 years, served as Searcy city attorney from 1978-2004 and was a special justice to the Arkansas Supreme Court in 2011. He was a former president of the Searcy Chamber of Commerce and the White County Bar Association. Bobby Lee Odom of Fayetteville died October 10, 2020, at the age of 81.He graduated from Murphy High School in Mobile in 1957. He attended the Marion Military Institute and graduated from the University of Southern Mississippi in 1961. After college, he began working as an insurance adjuster for Crawford and Company. First stationed in Lafayette, La., he was transferred to the Fayetteville office in 1966. He then entered the University of Arkansas School of Law graduating in 1970. After clerking for the Arkansas Supreme Court for a year, he began practicing in Fayetteville with Walter Niblock. In 1982 he opened his own law firm in the historic Guisinger Building on the Fayetteville downtown square. The information contained herein is provided by the members' obituaries.
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Vol. 55 No. 4/Fall 2020 The Arkansas Lawyer
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2021 MID-YEAR
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